REPORT: Opposing The Wanton Destruction of Great Salt Lake

[johnkarls]

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From: ReadingLiberally-SaltLake@johnkarls.com
To: ReadingLiberallyEmailList@johnkarls.com
Bcc: The Approximately 150 Recipients of Our Weekly E-mail
Date: Mon, February 13, 2017

Subject: CALL TO ACTION -- OPPOSING THE WANTON DESTRUCTION OF GREAT SALT LAKE TO GROW SUBSIDIZED (UNPROFITABLE) HAY FOR EXPORT TO CHINA

Attachments:
(1) RL-d212 - Mormon Church Opposes Placing MX Missiles in Utah and Nevada - NY Times 5-6-1981
(2) RL-d212 - Transcript and Summary of 1-23-2017 Interview of Todd Adams, Deputy Director of the State of Utah Division of Water Resources

[The attachments follow immediately below as “Replies” to this Posting.]

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Dear Friends,

At our meeting on Feb 8th, there was no objection to the proposed Six-Degrees-Of-Separation E-mail Campaign to all of our friends and acquaintances, imploring them to join our Working Group in exploring the feasibility of (and if possible, the institution of) a lawsuit against the U.S. Government for a Writ of Mandamus. And imploring all of our friends and acquaintances to similarly implore all of their friends and acquaintances in an unending chain.

[NB: As explained in the Suggested Answers to the Short Quiz for our Feb 8 meeting, a Writ of Mandamus is a “plain-vanilla, garden-variety” court order to governmental officials to “do their duty” -- in this case to preserve the national environmental and ecological treasure that is Great Salt Lake.]

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STATEMENT OF THE ISSUE

On 3/25/2016, Utah Senate Bill 80 was signed into law authorizing the construction of the Bear River Pipeline and funding at least 90% the cost with revenue from the Utah State Sales Tax.

As explained by Prof. Daniel McCool (U/Utah Political Science Professor and Director of the U/Utah’s Environmental and Sustainability Studies Program) -- (1) 82% of all of Utah’s water usage is consumed by the agricultural industry (vs. only 6% for residential lawns and gardens), (2) “Most of Utah’s water is used to grow alfalfa hay -- which consumes relatively high amounts of water -- and much of the hay is sold to China to feed dairy cows”!!!, and (3) “Farmers are using thousands of dollars of water to grow hundreds of dollars of hay”!!!

Succinctly stated, the issue is whether Great Salt Lake should be wantonly destroyed in order to grow subsidized (unprofitable) hay for export to China.

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OUR ACTIONS SO FAR

Our weekly e-mail of 10/1/2016 notified each of you that the Utah Governor had appointed a “Water Strategy Team” to prepare for him a Water Strategy White Paper, a draft of which was made available to the public for the first time on 9/22/2016 with public comments solicited by 10/24/2016.

Accordingly, our 10/1/2016 weekly e-mail invoked our “Short Fuse” procedures pursuant to which each of you was invited to join our Working Group to cope with this emergency.

On 10/14/2016 our Working Group filed comments by Certified Mail - Return Receipt with each of the 38 members of the Governor’s “Water Strategy Team.” And with the CEO and with the COO of Envision Utah which had prepared the Draft White Paper for the Water Strategy Team.

[Copies of those letters can be downloaded from a posting entitled “Destroying Great Salt Lake To Grow Hay For China” in the second section of http://www.ReadingLiberally-SaltLake.org entitled “Possible Topics for Future Meetings.”]

And on 10/31/2016 our Working Group sent letters by Certified Mail - Return Receipt to the top 15 officials of The Mormon Church who, together as a group, govern its affairs, pointing out that The Bear River Pipeline Project appears to violate the Mormon Church’s Official Doctrine regarding the environment.

[Copies of those letters can be downloaded from a posting entitled “Short Fuse: Destroying Great Salt Lake To Grow Hay For China” in the first section of http://www.ReadingLiberally-SaltLake.org.]

The letters implored the Mormon Church’s 15 top officials who govern its affairs to issue a Press Release stating that it will sponsor a “legislative initiative” pursuant to Utah Constitution Art. VI Sec. 1 and Utah Code Title 20A Chapter 7 to require (1) immediate cessation of all actions in furtherance of the Bear River Pipeline Project; and (2) dedication of all Utah State Sales Tax Funds that would have been allocated to the Bear River Pipeline Project to be spent, instead, on purchasing (or taking by eminent domain) farmland in the water districts to have been served by the Bear River Pipeline -- based on the value (if any) of the farmland if the full costs (including construction) of the Bear River Pipeline were reflected 100% in water prices.

NB: Historically the Mormon Church has taken public stands on political issues. Attached, for example, is a 5/6/1981 New York Times article entitled “Mormon Church Opposes Placing MX Missiles In Utah and Nevada” which happens to list their public stands on other political issues, such opposing in 1976 the Equal Rights Amendment to the U.S. Constitution.

Since there had been no discernable response to our 10/31/2016 letters, our 1/14/2017 weekly e-mail announcing the topic for our Feb 8 meeting stated that we would assess what action to take in the wake of that silence.

On 1/20/2017, our Short Quiz was posted on http://www.ReadingLiberally-SaltLake.org. It contained the following questions:

27. Does the foregoing help to inform the action we should take in the wake of the failure of the Mormon Church to respond to our letters of 10/31/2016 to each of its top 15 officers who together govern its affairs?

28. BTW, is there any doubt that if the Mormon Church had decided that the Wanton Destruction of Great Salt Lake, as a violation of the Mormon Church’s theology, should be halted with a “legislative initiative” pursuant to Utah Constitution Art. VI Sec. 1 and Utah Code Title 20A Chapter 7 -- as requested by our 10/31/2016 letters -- the Wanton Destruction would have stopped immediately?

29. Who owns the water that flows into Great Salt Lake from its three tributaries, the Bear River, the Weber River and the Provo River?

30. Is it necessary in answering Q-29 to consider all of the English-American Common Law “Estates In Land” and “Riparian Rights” that Yours Truly can recall so vividly from his Harvard Law School days 1964-67 with his photographic memory for anything he considers either important or interesting? [Hint: even though most law schools 1964-67 no longer required such studies, Yours Truly unfortunately considered such a “nightmare” as interesting, no matter how unimportant!!!]

31. In other words, doesn’t the English-American Common Law contain the concept of the “law of capture” which holds that any wild game you capture/kill on your real property is yours? And BTW isn’t the “law of capture” the bedrock of oil & gas law that holds that any oil & gas that you are able to produce from a well on your property belongs to you even though it comes from a geological structure that extends below the property of your neighbor(s)?

32. So if the watersheds of Bear Lake from which exits the Bear River that flows into Great Salt Lake comprise National Forests (if anyone has time to research this, please “chase this rabbit” because I am over-loaded with legal research), then under the “law of capture” doesn’t the Federal Government have initial ownership of the water?

33. And doesn’t the Federal Government have a legal duty to conserve national assets?

34. Does a lawsuit for a Writ of Mandamus seek to compel governmental officials to “do their duty”?

35. With respect to any “riparian rights” of private owners of property adjacent to the Bear River, haven’t their “riparian rights” been acquired by virtue of adverse possession? Is “adverse possession” with respect to real property commonly known as “squatter’s rights”?

36. Does English-American common law hold that “adverse possession” can NOT be used against the Government?

37. Even if “riparian rights” can be used to deprive the Federal Government of the ownership of water that it has failed under “the law of capture” to preserve for the nation, isn’t it true that the Bear River Pipeline is seeking to take water FOR WHICH THERE EXISTS CURRENTLY NO RIPARIAN RIGHTS hindering its flow into Great Salt Lake?

38. Does Title 28 U.S. Code Sec. 1361 confer on federal district courts “jurisdiction of any action in the nature of mandamus to compel” a federal officer, employee, or agency “to perform a duty owed to the plaintiff”?

39. Since a lawsuit is available, wouldn’t a lawsuit be preferable to one of our traditional “Six Degrees of Separation” e-mail campaigns imploring a decision maker to take action? In other words, since we are seeking “performance of a duty owed to us” rather than seeking discretionary action, doesn’t a lawsuit comprise a vehicle that can attract much more attention and over a much longer period of time?

40. Since we are suing the Federal Government, wouldn’t it make more sense to sue in Washington DC rather than Utah where our trial judge is likely to be Mormon (since the Mormon Church appears to be condoning, if not tacitly supporting, the Wanton Destruction of Great Salt Lake)?

41. Can an individual sue Pro Se (Latin meaning “For Himself”) or, in other words, without legal counsel?

42. However, doesn’t that mean that each of us who becomes a plaintiff would have to show up at every legal proceeding in Washington DC? And that we would NOT be able to invite organizations to join our lawsuit because legal entities are required to be represented by counsel?

43. Do any of us have friends who are attorneys admitted to practice in Washington and who might be willing to serve as “attorney of record” in our lawsuit?

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These questions appear to have provoked an immediate reaction.

A mere 3 days after our Short Quiz was posted, Fox News Channel 13 in SLC interviewed Todd Adams, Deputy Director of the State of Utah Division of Water Resources, in which THE FOX NEWS INTERVIEWER CLAIMED that the Division was halting the Bear River Pipeline Project because they had determined that it will not be needed before 2035 or 2040 at the earliest.

[The second attachment to this e-mail is a transcript of the interview, as well as a summary of the interview, both posted on fox13now.com/2017/01/23/state-postpones-billon-dollar-bear-river-project.]

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THE REASONS FOR RE-ACTIVATING OUR WORKING GROUP (AND RE-INVITING EACH OF YOU TO JOIN IT)

Yes, it is nice that The Mormon Church appears, after a delay of 3 months, to have reacted immediately to the prospect of a lawsuit against the U.S. Government in a Washington DC Federal Court for a Writ of Mandamus ordering the Federal Government “to do its duty” in calling a halt to the Bear River Pipeline Project.

[Though it is possible that the State of Utah Division of Water Resources had a “sudden epiphany on The Road to Damascus” and, on their own motion, called a halt to the Bear River Pipeline Project.]

The problem, of course, is that the funds for construction of the Bear River Pipeline continue to pour in from the Utah State Sales Tax.

And, of course, the State of Utah Division of Water Resources still has the legal authority to begin construction of the Bear River Pipeline AT ANY TIME, INCLUDING TONIGHT.

And practicing law for 50 years in NYC and London has taught Yours Truly NEVER to accept an assurance from someone who “in legalese” may NOT have “authority to go to the bathroom”!!!

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SCOPE OF AUTHORITY OF OUR WORKING GROUP

As set forth in the proposal contained in Part II of the Discussion Outline for our Feb 8 meeting, our Working Group has been authorized to proceed with “exploring the feasibility of (and, if possible, the institution of) a lawsuit against the U.S. Government for a Writ of Mandamus.”

Accordingly, if you would like to join the Working Group, please press your Reply Button, and type “Please Add Me to the Working Group.”

And if you have any friends or acquaintances who would make good additions to the Working Group, please feel free to forward this e-mail to them.

Your friend,

John K.


PS Vis-à-vis Research Subsequently to Our Feb 8 Meeting --


It turns out that water from the Bear River and its delta flow into Great Salt Lake through the U.S. Bear River Migratory Bird Refuge which is a 74,000-acre (299 square kilometer) National Wildlife Refuge established in 1928 by Presidential Proclamation and administered by the U.S. Fish and Wildlife Service.

Accordingly, the Federal Government appears to already have “riparian rights” ownership of all of the water flowing into Great Salt Lake.

And appears to have been “derelict in its duty” to us citizens for its failure to oppose the threatened theft of that water by the State of Utah via the Bear River Pipeline Project.

Incidentally, such a theft by the State of Utah might be thought to come within its “eminent domain” power.

There does NOT appear to be any U.S. Supreme Court case directly on point with regard to whether a state can take federal property through “eminent domain.”

However, a landmark U.S. Supreme Court case in 1819 taught in every law school course on Constitutional Law, McCulloch v. Maryland (17 U.S. 316), held that a state cannot tax an instrument of the federal government (in that case “The Bank of the United States”) by stating at 17 U.S. 395-396: “If congress has the power to do a particular act [RL editorial note - to create “The Bank of the United States], no state can impede, retard, or burden it.”

Accordingly, it would appear that current Utah Governor Gary Herbert was acting unconstitutionally when he (per archive.sltrib.com/story.php?ref=/news/ci_14773533) signed a law in 2010 authorizing the taking of federal property by “eminent domain” in order to “spark a U.S. Supreme Court battle that legislators’ own attorneys acknowledge has little chance of success. But Utah Attorney General Mark Shurtleff and other Republicans say the case is worth fighting, since the state could reap millions of dollars for state schools each year if it wins.”

It would appear from a 2010 NBC News Report (nbcnews.com/id/35548796/ns/us_news-environment/t/fightin-words-national-monuments/#.WKE6CDsrLIU) that the “back story” was that the Utah legislation resulted from displeasure over the ability of a U.S. President to designate “national monuments” without congressional approval pursuant to the U.S. Antiquities Act, and from displeasure with an internal U.S. Department of Interior document that listed 17 sites in 11 states that could be designated as national monuments, putting them “out of bounds” for development of natural resources such as coal, oil & gas, etc., on which the State of Utah would receive income taxes.

The NBC Report says that President Obama’s Interior Secretary, Ken Salazar, had met with Western Governors to assure them that the Obama Administration had no intention to designate any new National Monuments.

But the distrust of Utah politicians was what caused them to enact the law authorizing the attempt to negate by eminent domain any Presidential Proclamation of new National Monuments in Utah.

Ironically, if we move forward with a lawsuit in U.S. District Court in Washington DC against the U.S. Government for a Writ of Mandamus with regard to what appears to be the U.S. Government’s failure to oppose an attempt by the State of Utah to take by eminent domain Bear River Water belonging to the U.S. Bear River Migratory Bird Refuge, Gov. Herbert may get his wish to litigate in the U.S. Supreme Court whether Utah has the right to take Federal Property by eminent domain.

[Though Gov. Herbert would be confined to filing an Amicus Curiae ("friend of the court") Brief with the possibility that as a mere "friend of the court" he would not be permitted to participate in the oral argument.]

[johnkarls]

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NY Times – 5/6/1981


MORMON CHURCH OPPOSES PLACING MX MISSILE IN UTAH AND NEVADA


SALT LAKE CITY, May 5— The Mormon Church, saying church pioneers had chosen Utah as a ''base from which to carry the gospel of peace to the peoples of the earth,'' today announced its opposition to deployment of the MX missile system here and in Nevada.

The message was wired to the Utah and Nevada Congressional delegations and to President Reagan, whose Administration is reviewing options on how to deploy the multibillion-dollar nuclear weapons system. The statement was issued by the church's president, Spencer W. Kimball, and his two counsellors, N. Eldon Tanner and Marion G. Romney, at the headquarters here of the Church of Jesus Christ of Latter-day Saints.

The decision is expected to have profound influence on public opinion in predominantly Mormon Utah as well as in Nevada and among the Mormon population at large. There are one million Mormons in Utah, which has a population of 1,460,000, and 56,000 Mormons in Nevada, which has a population of about 800,000.

'Denial of Essence of Gospel'

''Our fathers came to the Western area to establish a base from which to carry the gospel of peace to the peoples of the earth,'' the statement said in part. ''It is ironic, and a denial of the very essence of that gospel, that in this same general area there should be constructed a mammoth weapons system potentially capable of destroying much of civilization.''

The church did not oppose the missile itself. ''With the most serious concern over the pressing moral question of possible nuclear conflict,'' the statement said, ''we plead with our national leaders to marshal the genius of the nation to find viable alternatives which will secure at an earlier date and with fewer hazards the protection from possible enemy aggression which is our common concern.''

In messages to church members last Christmas and at Easter, the church leadership foreshadowed the position it took today, saying that it deplored the building of vast arsenals of nuclear weaponry. However, the church would not then confirm that those were references to the MX system, which the Pentagon has proposed placing in a network of shelters in the Great Basin Desert of Utah and Nevada.

Today's announcement was not issued as ''a revelation,'' the method through which church presidents announce policy changes, but as a 780-word statement of opposition to the basing plan.

The system would involve 210 missiles carrying nuclear warheads that would move among 4,600 shelters on public land roughly the size of Pennsylvania. The system, with a cost estimated at $33 billion by the Air Force and at $56 billion by the General Accounting Office, would be deployed by 1990.

Gov. Scott M. Matheson of Utah, who opposes the basing plan, said he was gratified that the church had interpreted the MX system as a moral issue. ''I think it will sway public opinion more into the realm of opposition than was previously the case,'' said the Governor. According to polls, the state's population is about evenly divided between welcoming and opposing the system.

Statement Viewed as Influential

Governor Matheson predicted that the church's statement would have ''a very strong influence'' on Senator Jake Garn, Republican of Utah, and Senator Paul Laxalt, Republican of Nevada, ''and tremendous impact on President Reagan because the President has a lot of respect for the Mormon church and its leadership.''

The church, with more than 4 million members worldwide, has in the past interpreted public issues as moral questions, resulting in splits within the church. In 1976, the church leaders announced opposition to the proposed equal rights amendment to the United States Constitution, giving rise to ''Mormons for ERA'' and other dissident groups.

A former church president, Heber J. Grant, alienated some church members when he came out in favor of Prohibition and the League of Nations. In the 1936 Presidential campaign, he wrote a front-page editorial for the church-owned Deseret News here urging Mormons not to vote for Franklin D. Roosevelt. They did, by a large majority.

''Scholars see that at the point at which it became very clear that the church could not depend on being able to control the vote,'' said Dr. Jan Shipps of Bloomington, Ind., the non-Mormon president of the Mormon History Association.

''The statement is so direct that it will make people think very carefully to still support the MX system,'' said Dr. Shipps. ''Just as it is very difficult for persons now to support the E.R.A., because the church has come out against it, and that's your parallel.'' Reaction of Delegation in Congress

''The public reaction will be, however, 'Here we go into politics again,' '' she added. The members of the Utah Congressional delegation, all of whom are Republicans and active Mormons, reacted with caution to the statement. Senator Garn, Senator Orrin Hatch and Representatives James V. Hansen and Dan Marriott all support the MX system but have stopped short of endorsing the basing plan, which was approved by President Carter in 1979. The four said they would have to study the statement further.

The White House had no immediate comment. In Las Vegas, Dr. Samuel Davis, the regional representative of the Mormon church, said: ''When you have a significant decision to make, first you turn to the Lord with prayer and second you turn to his prophet on earth for direction and guidance. I hope the statement of the prophet will have an effect on our thinking and our plan.''


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Air Force Responds to Statement

WASHINGTON, May 5 (UPI) - A top Air Force official, responding to the Mormon statement today, said the complex MX missile system should be the least attractive target for the Soviet Union in comparison with other American instllations.

Lieut. Gen. Kelly Burke, who heads research and development for the Air Force, said at a news conference that no final decision had been made on where to place the missiles. A 15-member panel studying how and where to put the missiles is to report by July 1 to Defense Secretary Caspar W. Weinberger.

''Until that recommendation is made and until the concerns of all groups, including the Mormons, are taken into consideration, there will be no basing decision,'' General Burke said, adding that the Mormons were incorrect ''to imply that the states of Utah and Nevada would be bearing a unique burden'' if the missiles were based there.

Defense Secretary Weinberger, in Chicago to address a luncheon sponsored by United Press International, was given a copy of the Mormon statement. ''This is very interesting,'' he said. ''Of course, we will consider viable alternatives as well as the MX program.''

Later, in replying to a question at a meeting of the American Newspapers Publishing Association, he said: ''The missile is vital. I am convinced it has to be deployed someplace. I think we are all agreed that we do need the missile. The question is where do we put it?''

[johnkarls]

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fox13now.com/2017/01/23/state-postpones-billon-dollar-bear-river-project/


State postpones $2 billion dollar Bear River Project

POSTED 8:07 PM, JANUARY 23, 2017, BY MAX ROTH, UPDATED AT 04:18PM, JANUARY 24, 2017


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There follow --

(1) A summary of the 1/23/2017 interview by Fox News Channel 13 in SLC of Todd Adams, Deputy Director of the State of Utah Division of Water Resources. It was prepared by Max Roth who conducted the interview for Fox News Channel 13 in SLC.

(2) A transcript of the actual interview.

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SALT LAKE CITY -- A $2 billion water project is unnecessary for now, thanks to conservation efforts, according to the Utah Division of Water Resources.

The Bear River Project was originally approved by the Utah legislature in 1991. It was intended to dam the bear, creating one to three lakes in order to retain 220 thousand acre feet of water for residents of Northern Utah.

"When we originally started on the project it was needed in 2015. That was two years ago," said Todd Adams, deputy director of the Division.

Adams credits new meters that measure secondary water systems in Weber and Davis Counties, and said that new developments replacing agriculture tend to use less water.

Currently, he said the Division anticipates the date that such a project would be necessary will likely be after 2040.

"As we get new population projections, new water goals, new technology happens, potentially it will delay the project even further," said Adams.

Utah Rivers Council's Zach Frankel takes issue with the idea that the project will ever be necessary.

"They have spent at least $23 million on Bear River Development in the last 16 years, but they have only spent $4 million on water conservation,” Frankel said in a written statement.


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[Transcript of the actual interview by Fox News Channel 13 in SLC of Todd Adams, Deputy Director of the State of Utah Division of Water Resources.]

Fox News --

“The Bear River Project would cost an estimated $2 billion but the Division of Water Resources did something that you’re just not used to seeing from any organization. They said today despite having a green light, they’re going to stop for now.”

Todd Adams, Deputy Director --

“When we originally started the project, it was needed in 2015, that was 2 years ago.”

Fox News --

“The Bear River starts in the high Uintas and flows north through Wyoming into Idaho before looping back to The Great Salt Lake, the last untapped vein of water in Northern Utah. The Bear River Project would build reservoirs costing about $2 billion. Fox 13 produced an in-depth report featuring the project in 2014, conservationists and scientists telling us it would lower the Great Salt Lake, hurting the air and the snow pack along the Wasatch Front. But conservation has pushed the need for the project away, at least through 2035 or 2040.”

Todd Adams, Deputy Director --

“As we get new population projections, new water-conservation goals, as new technology happens, potentially it’ll delay the project even further.”

Fox News --

“The state credits metering water in Weber and Davis counties. They have secondary water for irrigation that has been a flat-fee free-for-all for generations.”

Todd Adams, Deputy Director --

“On the meters that have been installed, they’ve saved a lot of water and that will help us into the future.”

Fox News --

“Another factor seems counter-intuitive, but population growth helps conserve water when housing replaces farm land.”

Todd Adams, Deputy Director --

“As that gets converted to homes, that water is converted for municipal industrial purposes. Now that could be culinary water if it’s clean to drinking-water standards, or it could be put in a secondary water system.”

Fox News --

“So the Utah Rivers Council released a statement later tonight. They, they said that it’s time for the state to really pull the plug on the project permanently. They say the state has spent five times more money planning the Bear River Project already than they have paid encouraging conservation. Either way, we’re not going to see those dams on the Bear River for quite some time, if ever. Live in studio, Max Roth, Fox 13 News, Utah.”