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.
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BEN: Fair point about the purposes of the Antiquities Act.

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 New York Times’ creepy crush on Communism: Global Warming edition.

The New York Times has struck again in its strange gushes of infatuation with communism. Its latest is a vacuous reflection titled The Climate Crisis? It’s Capitalism, Stupid. Before digging into the sterile soil of this small plot of desert of logic, it is useful for context to recall the Times’ recent valentines to the bloodiest, most brutal ideology yet known on earth.
 
The Gray Lady apparently has slipped into nostalgic dementia for the days when its erstwhile Pulitzer scribe Walter Duranty wrote home about the glories of communism and scientific state planning even while, right under his nose, there were mass famines and slaughters that were exterminating tens of millions. What else would explain its recent paean 100 years of Communism, a series of columns airbrushing and romanticizing Marx’s spawn in the 20th century?
 
The various columns have to be seen and savored to be fully appreciated. There’s the heartwarming When Communism Inspired Americans. Too, there’s the heart wrenching What Killed the Promise of Muslim Communism? If you’re looking for something upbeat and racy, the Times is eager to explain Why Women Had Better Sex Under Socialism. Continuing the theme of doing right by the ladies, the Times also analyzes how Mao’s China lifted and empowered women.
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There’s much more. The series includes primers on Bolshevism’s lessons for parenting as well as how early communists were models for future environmental activists. Which brings us up to November 2017 and capitalism’s sins against the mother planet.
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In declaring that capitalism is the fire that will burn us all, one Benjamin Fong, a lecturer at Arizona State University offers no intelligent argument on global warming. He presents no substantive discussion of warming trends, warming causes, or warming consequences. He offers no explanation of how capitalism—free exchange really—is the driver of those trends. And he offers no description of the political-economic system he believes will cool the fire we face. He simply quotes a single scientist who reports global carbon emissions are on the rise. Fong doesn’t bother to invoke the proverbial 97%, Al Gore, or Michael Mann. He simply takes it for granted that invoking the C word makes his case. Readers will accept the reality of our coming doom and pine for solutions.
 
Fong’s omissions are not surprising in light of his light credentials to address his heated topic. Fong is not a climate scientist. Fong is not a political scientist. He’s not any kind of scientist. Fong is not an economist either. What is this lecturer from ASU, to whom the nation’s most arrogant newspaper leased a prized piece of opinion real estate?
 
Well, Fong’s bio on the university website informs us:”[Fong was at Princeton] Affiliate Scholar at the Center for Psychoanalytic Training and Research. His interests lie at the intersections of philosophy, psychology, critical social theory, and the study of religion.”
 
It further informs that Fong’s first book is: “Death and Mastery: Psychoanalytic Drive Theory and the Subject of Late Capitalism, which seeks to strengthen the psychoanalytic dimension of first generation critical theory in the hopes of rejuvenating its conception of subjection in late capitalism.” I don’t know what any of that means. I fed it through Google translate, but it came back word for word, verbatim verbatim the same. So, there we have it. Benjamin Fong is a non-professor who is interested in the intersection of religion and psychology and who hates capitalism. Sounds perfect for the New York Times. It’s a wonder NPR or PBS didn’t gobble him up first.
 
In any event, Fong’s thesis comes at an inconvenient time for the religion of warming hysteria. Temperatures aren’t keeping up with the doctored models. Consumers of popular American media like the Times wouldn’t know it, but, in light of step backed IPCC observations and hedged projections, even the oracle of mainstream scientific thought Scientific American recently reported: “Climate Change Will Not Be Dangerous for a Long Time.
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That was no coldflash in the pan. The journal Nature GeoScience reported a recent study by several eminent climate scientists that concluded prominent models over-estimate the heat retaining effect of CO2 and underestimate the responsive dynamics of earth’s skies and oceans. Bottom line: Global warming is crawling to catch up with activists’ alarmism.
 
The Washington Post covered the Nature study with the headline: New climate change calculations could buy the Earth some time — if they’re right. The New York Times–America’s paper of record, that prints all the news that’s fit to print–evidently deems this study unfit to print. Instead, it cedes column inches to a religion/psychology-studying, capitalism-hating lecturer to inform us that the catastrophe of global warming is the fault of capitalism.
 
It’s a shame Fong’s enlightened thesis wasn’t available until after the Times ran its tribute to Red redistribution, tyranny, and massacre. It would have been a fitting addition.

More good news: Trump’s triumphs the media tries to hide and some conservatives try to ignore.

 
 
It is fashionable for some conservatives and libertarians to point out dumb things Congress or President Trump does, and to huff it makes no real difference which party controls the federal government. I feel that way myself sometimes. The impression is reinforced by a media that, in its most recent hostile self-embarrassment frenzied wrongly over how Trump tossed too much fish food into a koi pond, while largely ignoring his substantive and successful visits with a number of heads of state. Herewith, some recent reasons I’m pleased that Donald Trump won last November.
 

On the domestic front, At Trump’s direction, cabinet heads are overseeing a historic slowdown and rollback of intrusive regulations. Business confidence and consumer confidence are surging as a result. A Democrat administration would never take this direction. It’s doubtful whether any of the other Republican candidates from 2016 would have, either.

 

Singling out one of the stars, EPA administrator Scott Pruitt is bring law and order to an agency with a history of overreaching lawless disorder. On a matter of substance, Pruitt is unraveling the EPA’s power grab over electricity generation via its sweeping rewrite of pollution laws. The war on coal is over, Pruitt declares.
 
On a huge matter of process, Pruitt declared an end to collusion between radical environmentalists and sympathetic bureaucrats, the so called sue and settle strategy. For decades, it’s been a dirty little open secret that activists achieve regulation through litigation. They would bring a lawsuit against the EPA arguing for more aggressive enforcement of various policies. They agency would settle, and gleefully put the screws to business and property owners, because it “had to.” No more, Pruitt says:
The days of regulation through litigation are over. We will no longer go behind closed doors and use consent decrees and settlement agreements to resolve lawsuits filed against the Agency by special interest groups where doing so would circumvent the regulatory process set forth by Congress. Additionally, gone are the days of routinely paying tens of thousands of dollars in attorney’s fees to these groups with which we swiftly settle.
 
 
On foreign policy, I’m pleased to have a president who puts American interests first and does not seem embarrassed by American strength and prosperity. Consumers of American media wouldn’t know it, but Trump’s Asia tour was a resounding success. He was received with respect, he schmoozed ably with world leaders, and reached a number of favorable understandings and agreements. This includes a little reported pact with China, in which China agrred to invest an eye-popping $84 billion in petrochemical projects in West Virginia.
None other than Piers Morgan formerly of CNN wrote that Trump’s trip was a triumph the media tried to hide.
 
Undoubtedly, they’ll keep trying.
 
 
 
 
 
 
 

A few random reasons I’m pleased Donald Trump won on November 8, 2016.

Let us count some ways…
 
Ambassador Nikki Haley speaks bold truth to the shameful and corrupt United Nations. They aren’t used to that.
 
Secretary James Mattis and US forces have refocused military priorities on effectively defending America and fighting its enemies. The conflict with ISIS has turned in a big way.
 
Secretary Rex Tillerson is not trotting the globe trying to surrender American interests to dictators and global terror leaders.
 
Secretary Scott Pruitt is working hard to bring reason and law to the pursuits of the out-of-control, lawless bureaucrats of the EPA.
 
Secretary Betsy DeVos is working to restore due process to accused students in universities, and working to retract micromanaging regulations in K-12 education.
 
Donald Trump withdrew America’s submission to the Paris Accord, forced unilaterally by Obama and Kerry.
 
Donald Trump is moving to withdraw Obama’s illegal subsidies to insurance companies to make Obamacare appear to work.
 
Donald Trump withdrew America’s participation in the globalist Trans-Pacific Partnership.
 
Donald Trump withdrew Obama’s unilateral bans on drilling in Gulf waters and in the Arctic.
 
Donald Trump refused to lie to certify that Iran is complying with the nuclear deal.
 
Secretary Rick Perry is working to allow energy production, not to choke it.
 
Trump and Pruitt withdrew Obama’s so-called clean power plan, a sweeping takeover of the electric grid and an assault on coal energy.
 
Donald Trump talks about enterprise, business, and profit like they are good for America, not like they are suspect, selfish pursuits that deserve scrutiny and a tight leash.

The Left’s Brazen Claim: What Obama Has Written, Trump Cannot Unwrite.

 
After Americans wearied of “fundamental transformation” and gave Republicans decisive Congressional majorities in the 2014 midterm elections, Barack Obama famously sniffed that he didn’t really need Congress. By the power of his pen and phone alone, he could implement his agenda. He meant it. In the last years and months of his term, without new legislation from Congress, the Obama administration adopted sweeping new regulations on oil and gas mining, electricity generation, federal control of the internet, rewrote federal immigration law, and shoehorned America into a one-sided nuclear pact with Iran without seeking Senate ratification.
 

It was an impressive list of policy ticks. Of course, one problem with ruling by presidential edict is that the next president might decide to reverse course on all those unilateral decisions. At least, that is how it used to work. But, a radical movement of lawyers and judges is trying to turn basic civics and government upside down.

 

Every student learns in grade school that a bill becomes a law only after it’s voted on by both houses of the legislature and signed by the president. Then the president oversees enforcing the law. The new breed of progressive leftist resistance is trying to scrap that historic formula into a one-way liberal ratchet. A new policy becomes law by means of an executive order or regulation, whether Congress acts or not. It gains permanent status when a later president tries to change it, liberal supporters of the prior policy sue to block the change, and activist courts protect it and slap down efforts by later presidents to exercise their own executive power.
 
The new civics is gaining cachet on the Left, which is counting on the judiciary to preserve liberal policy gains from harm by a Republican president and a Republican Congress. Thus, we have such intrusions as an appellate order ruling that the EPA may not postpone enforcing extreme and costly new regulations on oil and gas drilling while it reconsiders the regulation for possible repeal.
 
Similarly, after President Trump announced his intention to withdraw President Obama’s policy on Deferred Action for Child Arrivals, a policy that not only spared “dreamers” deportation, but granted them eligibility for work and benefits, former Homeland Security Head Janet Napolitano announced a legal challenge. There is something blithely and literally lawless about her justification. Napolitano argues that Dreamers are good people in a tough situation, and that DACA was a legitimate exercise in prosecutorial discretion. Well, first, a tough situation doesn’t authorize the president to re-write the law; and second, if the executive branch can use its discretion to alter a statute, Napolitano can offer no reason the same branch is barred from using the same discretion to return to the plain meaning of the law.
 
 
Similarly, after Trump announced plans to end a illegal subsidy that President Obama had engineered to cover insurance losses in Obamacare exchanges, several states have announced plans to sue the administration to keep the subsidies flowing. This case is especially egregious, as Andrew McCarthy explains. A federal judge has already ruled that Congress did not appropriate the funds for the insurance companies and therefore Obama had no authority to give them the money. Trump’s action is simply reverting to the plain language of Obamacare. But, states and Obamacare’s cheerleaders in the national media are excoriating Trump and hoping the courts will save the illegal bacon.
 

The pattern continues in energy development. Obama banned drilling in certain areas of the Arctic and the Atlantic. Trump announced a lifting of the ban, and now environmental groups have filed suit to prevent Trump from exercising independent judgment and going his own way.
 
 
 
In all cases, the litigants are unconcerned and unembarrassed that they are asking courts to rule president number 45 does not have exactly complementary powers to decide and act on the same issues as president number 44. Their attitude is, we won it under Obama, and we are entitled to keep it under anyone else. Thanks to Harry Reid doing away with the filibuster for lower courts, the appellate courts are stacked with fresh Obama appointees eager to protect his legacy. Thanks to Mitch McConnell taking the next step and abolishing the filibuster for Supreme Court nominees, the high court might have something to say about that.