Civil Debate about Bears Ears National Monument

I recently had this exchange with Ben Schneider, a former teacher and current author and publisher of climbing guidebooks.

SHAWN MITCHELL: Barack Obama unilaterally land-grabbed millions of acres of public lands at the end of his term under a strange law originally intended to preserve historic artifacts. Trump unilaterally whacked big chunks off of Obama’s grab.
Suddenly, America is restored to the land situation that existed in 2015. The horror.
All hell breaks loose. Trump hates wilderness!!! Trump wants to destroy national parks and monuments!!!
There is a way to preserve wilderness and open lands. All those beautiful acres are still out there. No golf courses or movie theaters or uranium mines erected or dug or drilled yet. But, presidential seizure under the antiquated Antiquities Act, especially against the wishes of the people who live there, is not the way a free society does it.

What Obama did by whim really can’t be the apocalypse when Trump later undoes half the whim. Right?

 

BEN SCHNEIDER: Obama’s designation here was far from a whim. Local republican lawmakers had tried for years to pass a federal bill protecting part of Bears Ears and also opening up large parts of it to mining development, oil & gas extraction, etc. it also would have permanently banned future antiquities act designations in a handful of Utah counties permanently. Those Utah lawmakers, Chaffetz and Bishop, failed to move that bill past committee. No democrats supported it but, but not all republicans supported it either. Chaffetz and Bishop couldn’t get it together, and alienated a coalition of 5 tribal nations with cultural claims to the area (who eventually walked away when they felt compromise was impossible). Their bill died. Meanwhile, because of the attention these lawmakers brought to the area, looting skyrocketed. There were 6 incidents of confirmed looting of Bears Ears native burial grounds in 2016 alone. At least 24 occurred in the five years previous. Can you imagine how many more actually occurred? Meanwhile the BLM did not increase law enforcement activity in the Bears Ears area.
 
So in summary the Utah lawmakers whose failed bill drew attention to the cultural richness of the area actually ended up in all likelihood increasing incidents of cultural looting AND the existing federal agency charged with protecting the area failed to respond. So what did Obama do, he used the Antiquities Act for exactly what it was meant for- to protect cultural resources from destruction. Local lawmakers were given a chance and they only made things worse.
 
Furthermore, I don’t know what you mean about the locals not supporting the designation. The five tribes with documented cultural claims to the area have long supported increased protections, and have a long record of lobbying and advocating for said protections. Frankly, given the generations of genocide (I use that word intentionally) the American government perpetrated against indigenous peoples, Obama’s rational designation of Bears Ears Natl. Monument is a drop in the proverbial bucket when it comes to making amends for the atrocities our forefathers committed against native peoples. And yeah, I give them a little more weight than some white locals who want to use the area for ATV fun or than I give to corporations who want to make a quick buck while they temporarily boost the local economy in a paltry way.
 
SHAWN: One question on the merits, the federal land managers you mention are, of course, part of the Department of the Interior. If this was about protecting antiquities, wouldn’t the reasonable course have been for Obama to order Secretary Salazar or Jewell to order the agency to do its job?
 
BEN: That’s a valid question Shawn. I’ve no idea what the answer to that is. But listen, I understand the argument I’m reading here about Federal overreach etc. I think there is probably some validity to that complaint. I guess at the end of the day I’m just not swayed by it, primarily because of the desire of Native Americans with cultural claims to Bears Ears to preserve the area. Historically, this country committed cultural genocide against the native inhabitants as we sought to expand and settle. We exterminated their cultures and peoples. American has never atoned for this, and we have never offered any significant reparations. Today most Native American populations are impoverished and struggling, which I think is directly attributable to the damage and havoc we created in their populations historically and never sought to repair. America has already benefited in significant, immeasurable and incalculable ways from the expansion of our geography that involved the theft of Native American lands and the exile of the native populations. Do we really need to continue to squeeze that lemon? Isn’t it time to start respecting the few indigenous voices left in this country? America has a tremendous debt here, and preserving and protecting Bears Ears in the ways the native populations desire is I think a small way to begin repaying that debt.
 
SHAWN: You make a moving argument, Ben. But I don’t know if addressing wrongs to Indians is a legal purpose of the Antiquities Act. Nor should the scope of atonement be committed to the president’s sole discretion.
.
BEN: Fair point about the purposes of the Antiquities Act.

A Few Thoughts on the Supreme Court Permitting Trump’s Travel Embargo to Go Forward.

 

There is something irksome about vehement Democrat resistance to stronger vetting of travel from a handful of select nations with terrorist networks and inadequate government functions to trust local records…

A. There are popularly circulating videos of Bill Clinton, Barack Obama, and most recently Diane Feinstein warning of the plague and cost of illegal immigration. Like within the last decade or so. Suddenly, though, Big Democrat Brother decided Oceana has never been at war with illegal immigration, and it is a racist thing to oppose.

B. There is an ideology with a declared hatred for Westerners and all infidels, and a current track record of shedding much blood to prove their sincerity. It doesn’t matter what percent of the population the nations feels this way. What matters is that in the aggregate there are thousands, and more importantly, that certain subcultures–whether they come radicalized or not–tend to self segregate and become radicalized.

C. The nations that are the target the selective travel embargo were not identified by Trump. They were identified by the Obama administration as having terrorist networks and inadequate government information judge non-violence. Moreover they comprise a tiny portion of 60 Arab or Muslim nations, giving the lie to the claim that the Order targets an entire religion. It targets failed and near-failed states with extremist networks.

D. Coming to the US is a globally prized privilege, not a basic civil right. Opponents of stricter vetting invoke abuses like the Japanese internment, when US citizens were stripped of rights and property and herded into encampments. I’m sorry, but anyone who thinks not inviting entrance to foreigners from declared hostile regions is similar to raiding and warehousing US citizens behind barbed wire is arguing from a brain made of warm pudding.

 

Can a River Identify as a Person?

This should be a stupid question, but, can a river identify as a person? Can it assert its personal rights in a court of law? What might those rights be? Freedom of speech? Freedom from unreasonable search and seizure or maybe from cruel and unusual punishment?
 
These and other questions come to mind in light of the spectacle transpiring in U.S. District Court in Denver as green loonies press their case to have the Colorado River declared a person with enforceable rights. It’s necessary to protect the essence of nature, they argue. People have rights. Corporations have rights. Natural resources need rights too, to balance the consumptive rights of people and to protect the earth.
 
Here’s the problem with that exotic thinking: Trees, mountains, rivers, and other gem components of nature don’t have minds to reason or mouths to speak. Any purported recognition of rights in nature necessarily creates a power struggle over which humans will define and advocate those “rights.” That reality highlights another reality: Nature is not comprised of moral actors with assertable feelings. It is a vast and diverse non-sentient resource of which humans are inhabitants and stewards.
 
Different societies in history have had varying understandings of utilization, consumption, preservation, and conservation. Varying systems of custom and law developed to embody the societies’ values and conclusions.
 
Here in the United States, for example, there is a complex web of different entities, groups, and authorities with an interest in human activity along major rivers such as the Colorado. There are property owners, cities, counties, and states. Land managers. Environmental regulators.
 
The latter groups in particular enforce various standards of cleanliness and orderliness, including laws addressing clean air, clean water, solid waste, development and construction, recreational activity and more. Societies come together politically—in the sense of civics and government—to set standards and priorities and to balance the array of human interests in natural resources.
 
Further, concerned citizens who believe property owners or government officials are falling short of agreed environmental standards usually have private standing to enforce those standards. They may bring citizen lawsuits to enforce laws about clean air, clean water, endangered species and more. The values that society has recognized all have advocates with the interest to protect those values.
 
The mystical invention of personhood for a river would simply invite one more voice clamoring for the interests that voice holds—and a power struggle over who that voice will be. Do rivers like fishing? Or rafting? Or do they want all people to be excluded from their banks and tributaries. Has the Colorado River weighed in on this? Perhaps Colorado’s recently stained Animas River has taken a recent intense dislike to bungling EPA bureaucrats and contractors and wants to banish them from the state.
 
Alas, since no one we know speaks River, we’ll probably have settle for the old system of muddling through based on accepted rights, interests, and laws.

The Unshakable faith of the Trump-colluded conspiricists.

It is astonishing the degree to which seemingly intelligent people hold an unshakable belief the Trump campaign colluded with Russia to win the election. Blind to the trumped up narrative unraveling all around them, oblivious to the absence of any evidence or substantive claim of a deal between Trump and Russians, unmoved by every scandal and error the media makes trying to ram the story into public acceptance, they simply know it’s true. They smugly sneer and disdain anyone who points out the holes in the story.
Last week’s guilty plea by Trump’s short lived national security advisor Michael Flynn is a prime exhibit of the critics’ unshakable faith in The Narrative. Michael Flynn pled guilty to a single count of lying to the FBI. Instantly the Never Trump lynch mob was high fiving and laying bets how soon the trail would lead to Trump and cause his exit.
 
ABC’s Brian Ross breathlessly blurted that Flynn was cooperating with Muller, and would testify that, during the campaign, Candidate Trump had directed him to contact the Russians. The mob went wild. Smoking gun! Collusion! Treason!
 
By the next day, Ross and ABC had to backpedal in disgrace: The direction to Flynn came after the election, not before. That is, it was about transitional diplomacy on behalf of an incoming administration, not about hacking emails or rigging the vote for a candidate in an upcoming election.
 
In deed, the information released by Muller the next day was explicit: Flynn was to engage the Russians about improved relations, about considering opposing a UN resolution, and about cooperating to fight ISIS. There was simply nothing untoward about those contacts. Why Flynn would have lied to FBI investigators about having them is something of a mystery. But he pled to lying about things that were right and proper, not wrong and collusive
 
That didn’t stop CNN’s Errol Lewis from bleating: It’s time to start talking about impeachment.
 
What Lewis either didn’t understand or deliberately withheld from CNN’s readers is that Flynn’s plea had nothing to do with pre-election collusion. They probably wouldn’t believe him anyway. In the fever swamps of the Never Trump Zealots, there is no fact or information that shakes their conviction. Trump and Putin stole the election from Hillary Clinton.
 
They’re actually missing quite a bit of interesting news. They have probably forgotten that CNN had to fire three reporters for fabricating a Trump-Russia story. They probably have not heard that Muller had to fire one of his top aids from the investigation because the aide had exchanged anti-Trump and pro-Clinton texts with another FBI agent.
 
They almost certainly haven’t heard that the FBI is stonewalling Congress’s attempts to learn more about the aide’s involvement in the case, as well as the FBI’s role in procuring and distributing the infamous Russia Dossier, and that Committee Chair Devin Nunes is threatening to pursue contempt charges.
 
 
None of the drip drip drip of The Narrative leaking away soaks their sweet dreams of perp walks and impeachment and an orange president in an orange jumpsuit.They should probably pay a little more attention to the news.
 
 

Shootout at the Bureaucrat Corral

 
 
Western Gothic might be one way to describe the confrontation stretching out this week as two federal employees test the question: Who is the boss of us and this agency? The president or our own independent selves? The issue encompasses a duel between a presidential appointee to serve as acting head of the Consumer Financial Protection Bureau following the resignation of its Director, Richard Cordray, and the internal staffer Cordray presumed to tap as his temporary successor. It also involves competing interpretations of federal statues and constitutional provisions. It’s a perfect shootout for political geeks.
 

The clash is formally over who has authority to choose an acting director until a permanent replacement can be nominated and confirmed, which could take months. But, the context is more fraught. In designing the CFPB, Congress deliberately stretched, and some experts say broke, the limits of its power to create a truly independent regulator, free from direction of the president, and outside accountability to the purses strings and oversight of Congress.

 

How and why did we get here? Following the financial crash of 2008, the overwhelmingly Democrat Congress with Obama in the White House passed the sweeping Dodd Frank Act, ostensibly to prevent the kinds of errors, abuses, and conditions that precipitated the crisis. A key cog in the Act’s gears was the CFPB , intended to be an expert and aggressive financial regulator. The thinking of Chris Dodd, Barney Frank, and Elizabeth Warren was aimed at two problems. First, they believed financial hustlers are too clever, innovative, and quick for traditional regulation based on statutory direction. An agile, aggressive watchdog is needed to spot risky practices and danger signs and take action faster than Congress could come up to speed outlaw bad acts. Second, the big banks, the drafter felt, exercised too much influence with Congress and would, with lobbying and contributions, thwart necessary legislation.
 
Thus, Congress created the CFPB to operate free of presidential control and with an extremely long and flimsy statutory leash. Congress’s mandate to the agency essentially is: spot bad, risky, or unfair financial practices and stop them. Further, Congress freed the agency from traditional accountability based on Congress’s power of the purse. It made the agency self-funding from the fees and fines it collects from regulated financial institutions. The CFPB is truly the energizer financial regulator.
 

Setting up Monday’s clash was an extra bit of president-repellent: In the event of a vacancy in the director position, rather than a traditional nomination of an acting director pending confirmation of the replacement, the Dodd Frank Act provides that the deputy director becomes the acting director.

 

However, another federal statute, the Federal Vacancies Act, provides that the president has power to appoint a temporary head until a permanent nominee is replaced. Adding one more wrinkle, outgoing head Cordray’s choice to be his successor, Leandra English was his chief of staff, not the deputy director. So, the week before he exited, Cordray named English the Deputy Director, intending to plug her into the succession process outlined in the Dodd Frank law. Not so fast, said president Trump, who nominated his Budget Chief Mick Mulvaney to serve as acting director.
 
And so the showdown is shaping up. One imagines both “nominees” approaching the bureau office Monday with hands at the ready near their hips, poised for the fast draw. English was first to fire, filing a lawsuit in federal court arguing she is the rightful acting director. A judge rejected her motion and took the case under advisement. He is reading the parties’ briefs and preparing to issue a ruling. For now, the president’s choice is riding shotgun in this strange clash in a unique federal agency.
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