November 10, 2016
RE: Owyhee Canyon monument
Dear Senator Wyden and Senator Merkley,
We are aware that PEW is pushing you to pursue their agenda to make Owyhee Canyon a National Monument area. As good intentioned as they think they are, there are legal issues that must be followed.
In the Jurisdictional Status of Federal Land Areas manual, the Owyhee Project, which covers 53,697.8 acres of land area, is listed as a Jurisdictional Code 4.
The Type of Legislative Jurisdiction defines Code 4 – Proprietorial Interest only. This term is applied to those instances wherein the Federal Government has acquired some right or title to an area in a State, but has not obtained any measure of the State’s authority over the area. In applying this definition, recognition should be given to the fact that the United States, by virtue of its functions and authority under various provisions of the Constitution, has many powers and immunities not possessed by ordinary interest, and of the further fact that all its properties and functions are held or performed in a governmental rather than a proprietary capacity.
The Constitution limits federal ownership of land, and when acquiring land from a state for those limited purposes, it must be approved by the state legislature (Article I, Section 8, Clause 17).
Any other lands must have legislative jurisdiction by a Statue at Large where legislative jurisdiction was obtained by a reservation in the enabling act authorizing statehood.
In order for the Senate or Congress to propose a bill for a monument of this area, an acceptance recordation must exist under the Code 4 identification. Without such authority, the Owyhee Canyon remains in the state’s authority and must lawfully be ceded by the Oregon State Legislature prior to any proposed federal bill to establish the monument. (Please see Oregon Revised Statute 272.)
In this circumstance, I am sure you are aware of the process: Congress requests the parcel to the Governor. The Governor recommends the parcel to the Oregon Legislature. The Oregon Legislature send the recommendation to the U.S. Attorney General for Qualification, and if it qualifies, Congress accepts cessions, payment is made and title issued.
In light of case 3:16-cv-02583-L-BLM, Complaint for Declaratory and Injunctive Relief, it would be advisable to request an NEPA from the President on economic effect on ranchers and property owners, business’ and others affected by forcing this land into a monument. This suit (Case 3:16-cv-02583-L-BLM filed 10/17/16 US District Court Southern District of California) was recently filed in Arizona against the head of DHS for not preparing the required NEPA based on all the illegal’s entering and destroying the land and the economic impact on the landowners.
Oregon has two cases in which Josephine County is suing the Federal Government alleging that federal officials have failed to follow federal laws challenging the BLM’s adoption of a new resource management plan and insufficient payments, which would cause a negative economic impact. The case in Linn County is similar.
I’m sure you are aware of the speech Representative Walden gave on the House floor outlining how agreements were made in Malheur and Harney counties with BLM and bills were passed and signed by the President, but BLM still refused to abide by the federal laws crafted. There are lives and homesteads at stack that would be greatly impact by the monument.
It is an aggressive move against Oregonians to remove our land to federal ownership, through unlawful procedures. Oregonians care about our state and are proven to be better managers of our land, more so than federal agencies that let our state burn from mismanagement. The federal government was not created to be the owner of land; it was created expressly to get the “right of soil” out of the hands of government. The 10th Amendment declares that powers not explicitly granted to the federal government are retained by the states and the people. Any action taken by you will be looked at for proper title and ceding. If you plan to move forward with the monument, please provide evidence of title to all the land within the Presidents described monument, and the NEPA’s therein.