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Power of the Bureaucracy to Stop Private Property Access
By Karen Budd-Falen, Attorney, Budd-Falen Law Offices

    What started as an attempt to get access across BLM land in western Colorado for one patented mining claim owner has turned into a full scale war by the federal government to make an example out of a private landowner to “deter [actions regarding access to private property] in the future.”
    Private landowner Andrew VanDenBerg is at the center of the controversy, including now being vilified by a press release issued by the Colorado U.S. Attorney’s Office (part of the U.S. Justice Department).
    The Alaska National Interest Lands Conservation Act (ANILCA) guarantees access to private property across federal lands. Although the private landowner is required to file an application explaining the location of such access, that application cannot be denied under ANILCA. According to the Senate Committee reports regarding ANILCA, Congress intended to eliminate the federal government’s discretion in allowing adequate and feasible access to inholdings by “direct(ing) the Secretary to grant the owner of an inholding such rights as are necessary to assure adequate access to the inholding and is intended to assure a permanent right of access to the concerned land across, through or over these Federal lands by such State or private owners or occupiers and their successors in interest.”
    The problem with the application system however is that the BLM routinely, and many times intentionally and unreasonably, delays processing such applications, thereby denying access to the private property during the processing. It is more common than not to have an application for access delayed for years, all the while denying access to private property. How can a private landowner enjoy and use his property if he cannot get to it?
    So starts the story for VanDenBerg. He cannot access his private property and the federal government refuses to process his application for reasonable access. But that is not the entire story.
    In complete frustration at the bureaucratic delays and denials, VanDenBerg decided to use an existing road to get to his property. This road, noted as an existing road on the 2005 San Juan National Forest map and known as County Road 33A, has been in existence since 1886. The road was clearly visible on the ground as well as noted on the federal government’s maps. VanDenBerg cut dead fall timber from the roadway and moved it out of the way. Although he followed the tracks of the road and he did not get out of the roadway that has existed for over 125 years, the BLM charged him with civil trespass charges in federal district court.
    Not wanting to expend the money on a huge and expensive trial, VanDenBerg decided to settle with the BLM. The settlement agreement states that VanDenBerg does not admit to ANY of the claims or assertions put forward by the government and that he is simply reimbursing the federal government for the reclamation of the dead trees he cut. Although he did not want to settle with the federal government, he recognized that the largest law firm in the world, the U.S. Justice Department, represents the federal government and that he would be buried in litigation costs. He thought a settlement agreement would end the matter and that the BLM would process his application so that he could have the access to his private property that he was promised by Congress.
    Before the ink on the agreement was barely dry, the U.S. Attorney’s Office issued a “press release” that incorrectly labels VanDenBerg as a “trespasser” and claiming his attempt to access his own private property is “unauthorized.” The release also states that VanDenBerg’s actions occurred in a “wilderness.” VanDenBerg had disputed all of those statements. Even the settlement agreement itself noted that these statements are only allegations by the U.S., yet their press release states them as fact.
    When asked about the false and misleading statements in the press release (in addition to noting that VanDenBerg denied all of the allegations in the settlement agreement), the U.S. Attorney noted in an e-mail to VanDenBerg’s attorney, “While I realize that you and your client were disappointed in the press release, . . . it is routine for this office to issue press releases on these kinds of settlements, especially in cases where the conduct is of the kind that we hope to deter in the future.”
    The attitude taken by the federal government reminds me of the EPA Administrator who resigned in April of 2012 after his admission that the EPA enforcement is “like how the Romans used to conquer little villages in the Mediterranean. They’d go into a little Turkish town somewhere, they’d find the first five guys they saw, and they would crucify them. And then you know that town was really easy to manage for the next few years.”
    He then said the same approach could prod companies (and individuals) to obey environmental laws: “You make examples out of people who are not complying with the law.”
    In specifically reviewing the EPA’s tactic, often the “violations of the environmental laws” were not based upon statute or regulation, but based upon an interpretation by EPA personnel. The same holds true in these access cases.
    Congress guaranteed the right of access to private property across federal land. However, the intent of Congress is being completely ignored because individual landowners do not have the time and money to enter into costly legal battles against the massive bureaucracy to enforce their right of access to their private property. Exposing these infringements upon individual rights to the public and to Congress is a way to have these governmental agencies and the individuals within the agencies stop their unlawful coercion, intimidation and strong-arm tactics against individual citizens who have limited resources to defend themselves against these injustices.
    VanDenBerg has continually tried to gain access approval to his private property that he has owned since 2007; the BLM refused to grant him adequate access, and he still has no access to his private property. Even though the BLM and VanDenBerg settled their legal dispute with neither party proving their case and VanDenBerg specifically stating that he did not admit liability for any fact or legal conclusion, the U.S. Attorney’s Office still issued a press release to make an example out him like the Romans did to conquer Turkish towns.
    Given the magnitude of the number of private individuals harmed by these illegal types of actions, it is no wonder that so many injured individuals mistrust the federal government.
Wyoming’s Water Situation Impacts Lands
Water and Land Division Coordinator Mahonri Williams, Sandy Hoard, Wyoming Area Manager Coleman Smith, Bureau of Reclamation

    In the June 30th edition of the Wyoming Livestock Roundup, Dallas Mount, the Southeast Wyoming Extension educator, commented, “We are thick in the throes of another drought this year. Many of the old timers I speak with say this one is the worst they have seen.” Well, Dallas and the old timers are pretty much spot on.
    The water supply conditions in the spring and early summer of 2012 present a stark contrast to the record-setting conditions we saw last year. In 2011 Seminoe Reservoir in the North Platte River basin had an all-time record April-July inflow of 1,969,400 acre-feet (an acre-foot is about 326,000 gallons). Compared to last year’s record and a 30-year average of 769,600 acre-feet, the April-July inflow so far this year has been only approximately 250,000 acre-feet, with relatively little additional runoff expected for the rest of July. Though we won’t know until the end of the month, this year may end up having the second lowest April-July Seminoe inflow in the last 30 years. The dry spring and early summer have also resulted in a high irrigation demand. Fortunately, the North Platte River reservoir system had good carry-over storage from last year’s record inflows, and a full irrigation supply is expected this year.
    Similarly, Boysen Reservoir on the Wind River had a 2011 April-July inflow of 994,700 acre-feet, which was well above the 30-year average of 574,400 acre-feet. To date, the April-July Boysen inflow has only been approximately 200,000 acre-feet, with relatively little additional runoff expected. However, the good carry-over storage in Boysen Reservoir from last year will help provide a full water supply for irrigators downstream of Boysen this summer.
    Buffalo Bill Reservoir also had a record inflow in 2011 of 1,230,400 acre-feet, compared to an average April-July inflow of 679,300 acre-feet. This year the April-July inflow has been trending below average (approximately 539,000 acre-feet so far), but it has been much closer to average than Boysen and the North Platte system. Buffalo Bill Reservoir is currently near full, and a full water supply is expected for water users downstream.
    In all three river basins described above, there will continue to be heavy irrigation demands relying on reservoir storage for the rest of the summer. Carry-over storage this fall is expected to be lower than last year. Should the dry conditions persist into subsequent years (as they have a tendency to do), water users are encouraged to implement measures that will conserve available water supplies.
    With hot and dry conditions throughout the state of Wyoming, wildfire season has come early this summer. A wildfire near Guernsey Reservoir in June burned almost 2,700 acres, most of which is Bureau of Reclamation (BuRec) land managed by Wyoming State Parks as part of Guernsey State Park. BuRec recreation management partners have instituted fire restrictions. For information on fire restrictions at state parks associated with BuRec Reservoirs, please see the State Parks website at wyoparks.state.wy.us.
    Natrona County manages recreation on BuRec lands at Gray Reef, Alcova and Pathfinder Reservoirs. County fire restrictions are provided at wy.blm.gov/wy_fire_restrictions/state_county.htm. County fire restrictions also apply at the BuRec managed recreation areas, which include Miracle Mile, Pilot Butte Reservoir, and Deaver Reservoir. No open fires are allowed on BuRec managed lands at the upstream end of Glendo Reservoir. Use or possession of fireworks is prohibited on all BuRec lands per 43 CFR Part 423.30. Considering the high danger of wildfire throughout the state, recreationists are encouraged to be responsible in their recreational activities and follow all fire restrictions.
    BuRec is also committed to maintaining safe and reliable facilities, and BuRec’s evaluation of the hydrology of extreme flood events for Glendo Reservoir resulted in the design of a new auxiliary spillway at Glendo Dam and additional modifications to Glendo Dam and Dikes. Construction work on this project began in the fall of 2010 and is ongoing. The construction of the spillway is expected to be completed at the end of this summer. Additional construction will follow with work on Glendo Dam this fall and winter and later work on the Glendo Dikes.
    Similarly, BuRec identified the need to modify Guernsey Dam and its south spillway. Construction at Guernsey Dam is expected to begin this fall and continue into the spring of 2014. This planned construction will result in reduced reservoir levels at Guernsey Reservoir during the summer of 2013.
    At Fremont Canyon Powerplant, BuRec is completing the installation of a new turbine for one of the generating units. The second turbine will be replaced starting this fall. These new turbines will provide more efficient and reliable operation for both units.
    The Wyoming Area Office (WYAO) of the BuRec operates reservoirs on the North Platte, Wind and Shoshone Rivers. There are seven BuRec reservoirs on the North Platte River: Seminoe, Kortes, Pathfinder, Alcova, Gray Reef, Glendo and Guernsey. Boysen Reservoir is on the Wind River, and Buffalo Bill Reservoir is on the Shoshone River. Other BuRec constructed reservoirs and irrigation facilities are operated by irrigation districts. Collectively, the BuRec reservoirs provide irrigation water to approximately a half million acres of farm land in northern, central and eastern Wyoming and western Nebraska. WYAO operates 12 hydroelectric power plants with a combined capacity of approximately 290 megawatts. Additional benefits provided by BuRec’s reservoirs include flood control, recreation, fish and wildlife and municipal and industrial water supply.


Potential Dangers of Dry Rangelands
By Rachel Mealor, UW Extension Range Specialist

    It seems as though many parts of Wyoming have seen very little rain these past few months. Off course, the rain is known for showing up right after many have cut their hay! This May and June have seemed unseasonably dry, especially compared to last year. These dry conditions can impact reservoir’s levels and the amount of water available for irrigation and diminish growth of many native grass species that make up plant communities on our rangelands. However, a less obvious consequence can be livestock poisoning from animals consuming plants they may not normally eat, or at least consume very little of, when there are other plants to choose from. This year there has been some concern regarding plant toxicity, especially in areas known for experiencing selenium and sodium accumulation.
    A number of plants accumulate selenium in sufficient amounts to be toxic if livestock consume them. Many of these plants are found in selenium rich areas and often require selenium for growth. Plants that are probably familiar to many that fit this description are certain Astragalus species, prince’s plume and some woody asters. These species are described as indicator plants and may accumulate up to 3,000 parts per million (ppm) selenium. Plants that do not require selenium to grow, but still accumulate selenium, are called secondary selenium absorbers. Secondary selenium absorbers include native range and crop plants such as western wheatgrass, barley, alfalfa and wheat.
    Two-grooved milkvetch (Astragalus bisulcatus), is a selenium-accumulating plant and although it is not palatable to most livestock, it has been found in a few cases of selenium toxicosis. Some suggest that even though selenium-accumulating plants are not readily eaten, they can contribute to selenium toxicosis by making selenium in the soil available to neighboring secondary selenium-accumulating plants that may be more palatable to animals.
    Selenium is actually required for most animals and concentrations of 0.3 ppm are recommended for most livestock that are meat- or food-producing animals. When livestock ingest large amounts of selenium (>400 ppm) it can lead to acute selenosis. Oral selenium doses between one and five milligrams per kilogram body weight are considered toxic levels. Chronic poisoning, oftentimes called alkali disease, results when between five and 40 ppm of selenium are in the diet for several weeks or months. Some symptoms of acute poisoning include lethargy, abnormal posture or unsteady gait, diarrhea or death. Some signs of chronic poisoning are rough hair coat, emaciation, lameness or joint stiffness, overgrown or deformed hooves or reproductive losses in cattle.
    Greasewood is another plant that has the potential to become a concern. The plant toxins, sodium and potassium oxalates, are found in the leaves with lower concentrations in the other plant parts. The toxin amount varies quite a bit depending on where the greasewood is growing (from 10 to 22 percent of plant dry weight). Toxicity increases as the growing season progresses. Greasewood is a woody perennial shrub that livestock can generally consume in moderate amounts with other forage and is actually fairly palatable. Death occurs when livestock consume large amounts of greasewood in a short amount of time. This year is of particular interest as the drought has resulted in limited growth of other forage in areas where greasewood is found. However, livestock losses usually occur in the fall and winter when cattle and sheep eat large amounts of leaves that have fallen off the plant from early spring growth. Signs of poisoning may develop four to six hours after a toxic amount is consumed by livestock. One gram oxalate per kilogram body weight is lethal in sheep or 1.5 to 2.0 kilograms for a cow. For the plant to be lethal, it must be consumed rapidly without other forages to dilute the toxin. Animals can be conditioned to oxalate toxins by feeding oxalates at low doses for several days. Conditioned animals must consume from 30 to 50 percent more than animals that have not been conditioned. Signs of poisoning include depression, weakness or reluctance to move, rapid breathing, drooling or coma.       
    It is important to note the danger of allowing thirsty or hungry animals to graze areas that are heavily infested with toxic plants. Special attention should be given to animals that have been trailed and then placed in a pasture with toxic plants. In areas where toxic plants are found, assure adequate levels of desirable forage for grazing prior to turning animals out. Animals that have a choice of other palatable or nutritious plants are less likely to consume toxic plants. However, this year cool season grasses may have grown very little due to such dry conditions! This could be an issue if one of the only palatable plants for livestock to eat contains toxic compounds. Having supplemental feed and water available to animals upon arrival after being trailed or transported to new ranges can also help prevent losses that could occur due to plant toxicity.
    For more information on toxic plants please visit the Agricultural Research Service website at ars.usda.gov/Main/site_main.htm?modecode=54-28-20-00.
      Rachel Mealor is the UW Extension Range Specialist and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..


A Fuel Tax is a Good Tax
By Erin Taylor, Executive Director, Wyoming Taxpayers Association

    News media has recently focused on the need to increase funding for Wyoming’s highways and, indeed, a Legislative super committee met in June to discuss options. The bottom line is that the Wyoming Department of Transportation is short $135 million per year, and by 2030, 82 percent of Wyoming roads will be in poor condition without increased funding. Poor roads equate to more wear-and-tear on our vehicles – and then we are forced to reach for the pocketbook. Ask yourself, what is the cost of doing nothing?
    The governor and lawmakers suggest that all options are on the table to bring in more revenue, and the super committee moved a few of these options forward for consideration in August, including a fuel tax increase (amount not specified), increases in registration and driver license fees and the possible addition of a state sales tax on fuel. Realistically, it’s one of these options – increasing the fuel tax – that really makes good sense. It’s not because our fuel tax is the second lowest in the nation, and it’s not even because that tax hasn’t been increased since 1998. It’s because it simply meets the test of good old-fashioned economics. A fuel tax is a good tax, and here’s why:
    Fuel taxes, in their simplest form, are often touted as being one of the most efficient forms of taxation, adhering to sound economic principles such as equity, stability and transparency. The concept really is simple - Wyoming’s fuel tax is a user fee. As a user fee, a fuel tax provides a system of road funding by simply charging road users when they fill up their tanks. So everyone who uses the road pays the tax, and no one enjoys an advantage over another user.
    Here in Wyoming, we pay two taxes on gasoline - federal and state. The federal tax is currently 18.4 cents per gallon for gasoline, which amounts to $4.23 on a 23-gallon tank. In a like manner, diesel is taxed at 24.4 cents per gallon. On the state side, we are paying a total of 14 cents per gallon for both gasoline and diesel. This includes a base rate of 13 cents per gallon plus one cent per gallon that is directed toward environmental cleanup costs for leaking underground storage tanks.
    Almost 60 percent of Wyoming’s gasoline taxes are directed to the Wyoming Department of Transportation to use for reconstruction, operation and maintenance, while the remainder is directed to cities and counties. Diesel taxes overwhelmingly go to highways (75 percent), and the rest is directed to county roads (20 percent) and municipal roads (five percent).
    Will we feel it at the pump? It’s likely, but not for long. Wyoming’s combined state and federal fuel tax (cents per gallon) is, at the lowest amount, eight cents less than our neighbors to the south, and at the most, more than thirteen cents less than our neighbors to the north. Yet prices at the pump are not that much different when you cross the border – distributors will have to adjust to keep themselves competitive, and prices will even out.
    Ultimately, it’s going to be a long road this summer to educate Wyoming citizens about this important issue, and with elections facing lawmakers this fall, it should be an important talking point for all candidates. The Wyoming Taxpayers Association is just one group that supports the fuel tax. Others include truckers, contractors, miners, fuel distributors, agriculture producers, hospitality and tourism, and the list goes on. If we take care of our Wyoming roads, they will take care of us.
    Erin Taylor is the executive director of the Wyoming Taxpayers Association. The Wyoming Taxpayers Association has been Wyoming’s leading tax policy and research organization since 1937 and is made up of members from all industry sectors, business, agriculture and individual taxpayers.