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CapitalPress.com
June 5, 2015
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Opinion
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Editor
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Mike O’Brien
Joe Beach
Carl Sampson
opinions@capitalpress.com Online: www.capitalpress.com/opinion
O ur V iew
It’s time for Congress to act on immigration reform
C
ongress has the sole
authority under the
Constitution to change
immigration laws, and it’s time for
it to address the issues created by 12
million illegal immigrants.
A three-judge panel of the 5th
U.S. Circuit Court of Appeals
has upheld a lower court’s order
blocking President Obama’s
executive action that would delay
deportation and grant temporary
legal status to as many as 5 million
illegal immigrants.
After last November’s election
handed the Senate back to
Republicans, the president urged
Congress to reform immigration laws.
Unwilling to wait, and perhaps as
bait, he announced executive actions
to extend and expand a program
that delays deportation for illegal
immigrants brought to the U.S.
as children — “Deferred Action
for Childhood Arrivals.” He also
initiated a program — “Deferred
Action for Parents of Americans
and Lawful Permanent Residents”
— to delay the deportation of illegal
immigrants who are parents of
children born in the U.S.
The president said he was
exercising prosecutorial discretion
in not pressing deportation cases
for those qualifying. It’s a power he
has, though not generally practiced
wholesale. But then he went a step
further, extending work permits —
in effect, lawful status — to those
allowed the temporary reprieve.
Twenty-six states, all Republican-
led, sued. Though the merits of their
case have yet to be decided, the
trial and appellate rulings to date
on the injunction are clear that the
president has gone too far.
In upholding the injunction, the
appeals court said the action goes
beyond discretion by taking the
affirmative action of conferring
“lawful presence.”
“Declining to prosecute does
not convert an act deemed unlawful
by Congress into a lawful one and
confer eligibility for benefits based
on that new classification.”
As we said when the president
announced his executive actions,
only Congress can change
immigration law. That it has
consistently refused to take action
does not change the Constitution and
allow the president to do so by fiat.
Still, the law needs to be changed
and the fate of 12 million illegal
immigrants must be decided.
We recognize that immigration
is a sticky bit of politics that has
been difficult for both parties. While
business interests want reform,
Republicans looking towards the
next election are wary. Democrats
are no better. When they held
Congress and the White House they
took no bold action, lest they offend
the electorate.
O ur V iew
Waters of the U.S. rule needs rewrite
I
t happens a lot in Washington,
D.C. An agency sets out to
clarify regulations and the
outcome is worse than the starting
point.
Think of the Food Safety
Modernization Act. Once the
folks at the U.S. Food and Drug
Administration began to put their
heads together, the simple intent of
Congress to make sure food is safe
to eat turned into a Frankenstein
monster of what-ifs. Ask onion
growers, who were forced to prove
to the FDA that their crop had
never been linked to a food-borne
illness. And ask breweries, which
had for thousands of years fed their
spent grain to cattle without ever
creating a food safety problem.
Only after members of Congress
interceded and researchers proved
what experience had already
demonstrated did the FDA decide
to reverse itself on those issues.
And think of the new Waters
of the United States rule. A
simple effort on the part of the
Environmental Protection Agency
and the U.S. Army Corps of
Engineers to reconcile conflicting
court decisions turned into another
Frankenstein rule. Actually,
we would characterize it as
Frankenstein on steroids. It’s 297
pages of bureaucratese.
“It leaves all the previously
ill-defined terms in place,
like ‘adjacent,’ ‘wetland’ and
‘discharge,’ while adding
equally malleable terms such
as ‘floodplain,’ ‘tributary’
and ‘significant nexus,’” said
M. Reed Hopper, the Pacific
Legal Foundation attorney who
I am a seventh-gener-
ation Lancaster County,
Pennsylvania, dairy farmer
and member of Land-O-
Lakes cooperative, market-
ing Grade A milk in Feder-
al Order 1 throughout the
entirety of the time period
covered by the proposed
Northeast dairy settlement.
I hold in my hand a 2003
milk check, with a mailbox
price of $10.80 to show
the effect this Dairy Farm-
ers Of America, Inc., and
Dairy Marketing Services,
behavior has caused.
In the interest of the
ability of future genera-
tions to continue my fam-
ily’s dairy farming tradi-
tion, I strongly object to
New EPA rule muddies the
water for farmers, ranchers
and property owners
By GREG WALDEN
For the Capital Press
A
Rik Dalvit/For the Capital Press
successfully argued one of the
cases before the U.S. Supreme
Court that caused the EPA to
rewrite its rule. “And it provides
that federal officials can decide on
a case-by-case basis whether any
‘other waters’ should be regulated.”
Another major objection that
we editorialized on in the past
is the EPA and Corps provide no
path for appealing an agency’s
decision other than going through a
jurisdictional review by the Corps.
According to Hopper, rulings
from the 5th, 8th and 9th U.S.
Circuit Courts of Appeals differ on
whether landowners’ due process
rights are protected in similar
cases.
If the EPA wanted to clarify
something, it could have
guaranteed a citizen the right to
challenge an agency determination
in court after a jurisdiction review.
Because of its bulk and unclear
language the rule created or
left open as many questions as
it answered. That is what made
farmers and ranchers — and other
landowners — most nervous.
There’s on old term we like a
lot: Cowboy talk. It’s a synonym
for plain language. Instead of
trying to impress each other with
their command of obscure and
unclear terms, the folks at the EPA
and Corps should have written a
rule that reads something like this:
We promise to leave farmers and
ranchers alone unless we can prove
scientifically and beyond a shadow
of a doubt that runoff from a farm
or ranch is polluting a navigable
stream, river or lake protected
under the Clean Water Act. Any of
our determinations can be appealed
in federal court.
They would have saved 296
pages of vagueness and gibberish
and done a better job.
Readers’ views
Dairy farmers
deserve larger
settlement
We continue to believe the
answer is to offer illegal immigrants
temporary legal status and a path to
permanent residency after 10 years if
they meet strict requirements — no
prior felony convictions, no violations
while awaiting residency, learning to
speak English and pay a fine and back
taxes. We think the border should
be secured. A viable guestworker
program must be established, and
employers must verify the work status
of their employees.
Whether taken piecemeal or in
a comprehensive measure, it’s time
Congress moved forward.
The alternatives are clear: Let
them stay, or make them go. The
devil is in the details.
the proposed settlement in
this case.
My objection is based
on the following reasons.
First, the amount of the
proposed settlement is $50
million, or approximate-
ly $4,000 per farmer. This
insignificant amount falls
way short of the actual al-
leged damages caused by
DFA/DMS’s anticompet-
itive behavior. The dam-
age amounts calculated
by Drs. Kalt and Rausser
range from 41 cents to 69
cents per hundredweight.
By nature of the scrutiny
expected, these calcula-
tions are themselves very
conservative, and could be
considered a “settlement.”
The same defendants in
the recent Southeast dairy
case paid their members
roughly $300 million as
compensation for the same
anticompetitive behavior.
Second, and more im-
portant than the dollar
amount, is the accountabil-
ity for or exoneration from
the behavior alleged in the
suit that will only occur if
the case goes to trial. As
dairy farmers, we need to
have confidence that our
farmer-owned
coopera-
tives truly act in our best
interests. The information
that would come out in a
trial, or be buried in a set-
tlement, is vital to this con-
fidence. It should not be an
option for the defendants
to pay a relatively small
settlement fee for the privi-
lege of continuing business
as usual.
The National Dairy Pro-
ducers Organization’s mis-
sion is to seek a profitable
price for the quality milk
produced by USA dairy
farmers. The USA dairy
farmer produces the quali-
ty milk, but due to the al-
leged anti-trust allegations,
the dairy producer was not
rightfully compensated for
his quality product.
The NDPO board is
made up of only dairy pro-
ducers, and only represents
the dairy producer as to not
have a conflict of interest
unlike our processing co-
ops.
NDPO represents the
interest all USA farmers
regardless of size. When
the Northeast dairymen are
affected by anti-competi-
tive behavior we come to
their aid to help in ways
the board sees fit.
I as chairman planned
to be in Vermont federal
court on June 1 to witness
the judge’s decision of the
plaintiffs’ request to re-
move class counsel.
Mike Eby
Gordonville, Pa.
ll across Oregon and
the rural West, farm-
ers, ranchers and oth-
er property owners have been
wondering: What will Wash-
ington, D.C. try to unnecessar-
ily regulate next? Where will a
federal agency again attempt to
curtail private property rights?
How will this uncertainty affect
already struggling rural econo-
mies?
Last week we got that answer
when the Environmental Protec-
tion Agency finalized their rule
to massively and unilaterally
expand federal jurisdiction over
water and private property. With
the stroke of a pen, the admin-
istration has pushed aside the
“navigable waters” limitations
of the Clean Water Act, leaving
in its wake vague definitions that
potentially open up intermittent
streams, vernal pools, irrigation
ditches, or ponds to even more
federal regulations.
The EPA first proposed this
rule under the guise of “clarify-
ing” the scope of the Clean Water
Act. But I’ve heard throughout
Oregon that the vague language
in their proposal actually creates
more uncertainty, not less. More
red tape, not less. For farmers,
ranchers, Oregonians and others
that utilize our water resources,
it is a huge threat.
Ranchers are wondering
when the EPA will come after
their stock ponds. Wheat grow-
ers worry about an intermittent
stream adjacent to a field. Fruit
and vegetable growers are con-
cerned about their irrigation
ditches. As one Eastern Oregon
rancher told me, the rule is “an
overreach by the federal govern-
ment that threatens to eliminate
conservation practices currently
implemented by farmers and
ranchers across Oregon.”
I have long opposed expan-
sion of this authority, whether
through legislation or admin-
istrative rulemaking. This reg-
ulatory overreach by the EPA
blatantly ignores Congress’
repeated rejection of similar
legislative efforts to expand ju-
risdiction of the Clean Water
Act in the past. Of course, we
shouldn’t be that surprised. The
EPA has tried this before, and
they have twice been rebuked
by the Supreme Court.
Even the Small Business
Administration has said that the
proposed rule would have “di-
rect, significant effects” on small
businesses, and recommended
that the EPA withdraw their rule.
Guest
comment
Greg Walden
But the agency went full steam
ahead last week.
The economies of rural Or-
egon and other communities
around the country face enough
obstacles already. Broken fed-
eral land policies and unnec-
essary red tape have strangled
communities, often leaving only
agriculture to grow jobs and
combat unemployment rates in
the double digits. We don’t need
agencies in Washington, D.C.,
erecting more hurdles and cre-
ating more uncertainty as our
farmers and ranchers work to
feed the world and create jobs in
rural communities.
That’s why I worked hard to
pass a bill in the House to require
the EPA to withdraw the rule.
The Regulatory Integrity Pro-
tection Act (HR 1732) passed
the House on a bipartisan vote in
May. Twenty-four House Dem-
ocrats (including my Oregon
colleague Kurt Schrader) joined
every Republican in supporting
this common-sense measure.
As one Oregon farmer told
me when a similar bill passed
the House last year, “This at-
tempt to control private lands
using the Clean Water Act
must be stopped. It is import-
ant that farms be able to focus
on raising fresh, healthy and
necessary food and feed for this
world without unnecessary reg-
ulations. Congress has taken an
important step to help ensure
farmers can continue to farm
their land without federal per-
mission and allows landowners
to meaningfully improve water
quality through existing state
programs.”
The House has also passed
legislation that would prohibit
funding from being used on this
rule (this is on top of our suc-
cessful efforts to cut the EPA’s
budget by 21 percent — $2.2
billion — over the past five
years).
The Senate should take up
and pass these bills right away
and send the EPA back to the
drawing board. Our farmers,
ranchers and rural communities
deserve better than federal agen-
cies strangling them with more
red tape. It’s time to ditch this
rule.
Greg Walden represents
Oregon’s second congressional
district, which covers 20 coun-
ties in southern, central and
eastern Oregon.
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