Working for Rights Pendley looks at challenges facing landowners

Casper – “We are living during an incredibly challenging time,” said William Perry Pendley, president and chief legal office of Mountain States Legal Foundation, during the Opening General Session of the 2014 Wyoming Stock Growers Association Winter Roundup on Dec. 2. 

Pendley added, “I think this country is in trouble, and we have great challenges ahead.”
During his presentation, Pendley looked at several of the challenges impacting Americans and landowners and his work through Mountain States Legal Foundation to curb today’s overbearing government. 

State of affairs

“We are living during the time of the most lawless administration in the history of the republic,” Pendley noted.

Senator Ted Cruz (R-Texas) has identified 76 instances of violations of constitutional mandates by President Obama, according to Pendley, who added, “I’ll cite Jonathan Adler, a liberal professor of law. He says he agrees with Obama’s policies, but doesn’t like the way he is doing it.”

“We are, today in America, at a constitutional tipping point,” Pendley continued. “One of the three branches of government has grown more powerful than the other two.”

In particular, Pendley cited three laws that are affecting landowners across the West that reflect the growth of power of the government.

Endangered species

“Environmental groups describe the Endangered Species Act (ESA) as the pit bull of environmental laws,” says Pendley. “Unlike almost every other statute on the books, the policy is implemented regardless of economic impact.”

When the law first passed in 1976, the bill passed unanimously.  

“Senator Cliff Hanson of Wyoming voted for it because they were told only about 100 species would be on the list, and species would only be on federal land,” he continued. “If species were on private property, there would be just compensation. I know of no instance in which just compensation has been paid.”

Species coast-to-coast are impacted, but Pendley noted that listing petitions are often attempts by environmental groups to drive multiple use off public lands. 

“ A lot of people believe the ESA is based in science,” he said. “It is not about biology. Science is supposed to be about reproducible findings. That is what science is all about. Instead the agencies have models that they use.”

As an example, Pendley noted that the polar bear was listed as endangered because models showed that polar ice caps would melt in the next century, causing the polar bears to die. 

The practice, he said, is flawed, and needs to be fixed. 

NEPA

The National Environmental Policy Act (NEPA) is another problematic act, according to Pendley.

“NEPA is the workshop equivalent of measure twice cut once,” he described. “It was supposed to be for the federal government to make informed decisions and move on.”

“Today, NEPA is one of the most effective tools for bureaucrats and groups to stop everything in its tracks,” Pendley continued.

He noted that environmental groups are now trying to impose NEPA on actions that occur on private property, describing a lawsuit in northwest Pennsylvania in 2009. 

“One of our first victories over the Obama Administration was in 2009 when a lawsuit was settled over attempts to apply NEPA to private oil and gas operators,” he said.

“We have slow walking, endless talking and eternal blocking in federal agencies,” Pendley added, mentioning that NEPA further slows the pace of business.

Clean waters

Rounding out his list of top-priority federal policies, Pendley cited the Clean Water Act (CWA). 

“The Clean Water Act was a relatively slender statute passed in 1972,” he said. “Senator Edmund Muskie from Maine proposed the 88-page piece of legislation.”

The five most important words in the Act – waters of the U.S. – have been a source of controversy, he added. 

“It was an attempt by Congress to define its jurisdictional limits,” Pendley continued. 

The definition was originally proposed to have commerce implications, and Pendley explained that navigable waters were those that are important for commerce. 

“Over time, the Supreme Court has ruled on how far the federal government can go,” he said, also mentioning that they have taken the stance of, “I can’t define it, but I know it when I see it.”

The stance is problematic and makes any decision-making for landowners very difficult. 

Taking action

As these three Acts create problems for many across the U.S., Pendley noted that he has fought in court in many situations to find justice for those impacted, representing ranchers, landowners and others. 

The challenges that Americans are facing currently, he said, aren’t going to go away, and they must be dealt with to maintain property rights. 

“I’m reminded of the song, ‘The Living Years,’ by Mike and the Mechanics,” Pendley added. “‘Every generation blames the one before and all of the frustrations come pounding on their door.’”

“As we face these challenges on the ESA, NEPA, the Clean Water Act or whatever it may be, remember that there will be troubles, but it will be worth it,” he continued. “I say, fight on, always aware of the fact that if not, you, then who? If not now, then when?”

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at saige@wylr.net.