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CapitalPress.com
April 29, 2016
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Opinion
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Editor
Managing Editor
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Joe Beach
Carl Sampson
opinions@capitalpress.com Online: www.capitalpress.com/opinion
O ur V iew
Congress, not president, must fix immigration laws
E
arlier this month the
Supreme Court heard
arguments in a case
challenging President Obama’s
executive actions regarding
illegal immigration.
We believe the court should
find against the president.
Late in 2014, the president
issued executive orders
temporarily lifting the threat of
deportation for as many as 5
million illegal immigrants who
have been in the country for five
years and who have children
born in the United States, and to
children brought by their parents
prior to Jan. 1, 2010.
His orders also granted these
immigrants temporary legal status
and work permits. In that, the
president moved significantly
beyond steps taken by other
presidents on the issue.
Twenty-six states sued,
alleging the action violated the
president’s constitutional duty
to faithfully execute laws passed
by Congress, and had not been
Rik Dalvit/For the Capital Press
carried out in accordance with the
Administrative Procedures Act.
A federal appeals court has
upheld a lower court’s order
blocking implementation of the
order.
Several farm groups have
sided with the administration. We
understand why. Dairies, nurseries,
fruit growers and vegetable
producers across the West need a
source of legal labor willing to do
the work citizens largely reject.
We are also sympathetic to the
plight of the 12 million or more
illegal immigrants living here in
the shadows.
“They’re here whether we
want them or not,” Justice
Sonia Sotomayor noted during
arguments.
Indeed. Driven by crushing
poverty, and often encouraged by
their own governments, illegal
immigrants seeking opportunities
impossible at home have flooded
across the border. They have
placed strains on public education,
healthcare and law enforcement.
Once here and armed with
forged papers they have found
ready employment on farms and
construction sites, and in hotels,
restaurants, processing plants
and other places eager for cheap,
reliable labor.
While they work hard at
jobs “Americans” often don’t
want, by their numbers the
undocumented workers have
changed the dynamics of the
entire U.S. workforce. Their
repatriation would have a sizable
impact on our economy, leaving
many industries without viable
replacements.
While we sympathize with their
situation, we can’t support this
solution.
We concede that the president
has wide discretion in prosecuting
deportation cases, even if
applying such discretion so
Bureau of Reclamation makes offer irrigators can’t refuse
By LAWRENCE KOGAN
For the Capital Press
K
LAMATH
FALLS,
Ore. — Many may
recall how Don Vito
Corleone helped the fading
career of singer godson John-
ny Fontane to secure a film
role he had previously been
denied — by making the film
studio owner “an offer he
(couldn’t) refuse.”
In much the same way,
U.S. Bureau of Reclamation
Mid Pacific Region is seeking
to help the Klamath Irriga-
tion District to undertake the
significant repair of a struc-
turally compromised water
flume integral to the Klamath
Irrigation Project, which the
Bureau recently thrust upon
it — by making the district an
offer to provide a $10 million
low-interest government loan
bearing onerous non-negotia-
ble terms that its board cannot
refuse.
Life imitates art
Indeed, this would seem
to be a clear case where life
imitates art, as the one-sid-
ed C Canal Flume financing
contract is certainly not an
agreement that individual
district farmers and ranch-
ers would be inclined to
sign had they the choice.
Under veiled threat from
the Bureau to reallocate
“limited” agency funds
needed for the repairs and
to suspend water delivery
for the 2016 irrigation sea-
son, the KID Board of Di-
rectors is being compelled
to execute what can best
be described as a Chica-
go-mob-Mexican drug car-
tel-style extortion contract
(i.e., a contract where “the
consideration is a promise
not to hurt someone who
pays up.”)
Any objective review
of this contract reveals the
oppressiveness of its terms
and conditions.
Most importantly, these
contract terms depart sig-
nificantly from the terms of
the 1954 and 1983 contracts
the KID executed with the
BOR; as a result, they fun-
damentally change the busi-
ness relationship between
the parties.
Contract terms
The C Canal Flume fi-
nancing contract, for ex-
ample, does not provide for
the same 12-month period
within which to cure a late
payment or performance
“default,” as do the earli-
er contracts. Were a late
payment or performance
default to occur, the BOR
contracting officer would
have the absolute discretion
to suspend water deliveries
to the KID and to reclaim
control over project works
previously transferred to the
district for operation and
maintenance.
In addition, the contract
provides the KID with a
brief 10-year loan repay-
ment term, which the BOR
contracting officer, in his
discretion, may shorten if
the district’s annual finan-
cials show an ability to pre-
pay the loan, notwithstand-
ing KID protest. Despite the
difficulty the district would
have in satisfying even a
fixed 10-year loan term,
the BOR’s ability to unilat-
erally adjust the contract’s
repayment schedule would
likely place the KID and its
members in substantial fi-
nancial jeopardy.
If district members suf-
fer several successive bad
years of agricultural pro-
duction or lower commodity
prices, the combination of a
less than 10-year repayment
term and the lack of a de-
fault cure provision would
very likely result in KID
contractual default.
A default, in turn, would
trigger the BOR’s suspen-
sion of water deliveries to
the district and the BOR’s
Guest
comment
Lawrence Kogan
take-back of KID project
transferred works. A default
under this new contract also
would prevent KID irriga-
tors from exercising their
1954 contract right to buy
back their portion of the
project from the BOR, leav-
ing them at the mercy of the
government for future water
deliveries.
Take it or leave it
Furthermore, beyond im-
posing this take-it-or-leave-
it contract, the BOR has
failed, since 2001, to honor
repeated KID requests to
provide an annual account-
ing of the status of the dis-
trict’s 40-year repayment
and water service contracts
to the U.S. government, as
required by the Reclamation
project Act of 1939.
By failing to provide the
annual Statements of proj-
ect Construction Cost and
Repayment required under
the reclamation law, the
BOR has intentionally pre-
vented the KID from accu-
rately assessing its project
debt and from accurately
budgeting for potential fu-
ture buy-back of its project
transferred works.
To add insult to injury,
BOR Mid-Pacific Region
officials and managers
have, for many years, free-
ly interfered in and intruded
upon daily KID operation
and maintenance activi-
ties, including the planning
and design of the C Canal
Flume replacement, imposing
unnecessary additional finan-
cial and other burdens on KID
employees and contractors.
Local BOR officials have
convened selective private
meetings with KID employ-
ees and independent contrac-
tors without first contacting
KID management or board
members, despite being in-
structed to first seek man-
agement authorization. Local
BOR officials also have dil-
igently worked to shape and
manipulate public opinion
in their favor to ensure the
KID acts consistent with the
BOR’s policy agenda. These
mob-cartel-like
behaviors
have unsettled KID employ-
ment and contractor relation-
ships and harmed the new
KID board’s relationship with
district members.
Real agenda
It is not difficult to see the
BOR’s true policy agenda:
to convert the Klamath Ba-
sin’s once highly productive
farmlands into nonproductive
“wildlands” in favor of en-
vironmental and aboriginal
tribal water rights preserva-
tion. The most efficient way
of achieving this goal is to
suspend water deliveries to
the basin’s farms and ranches
through means of federal-state
deception, financial extortion,
Endangered Species Act and
tribal water rights edicts and
dam removal.
It’s high time the U.S.
Congress involves itself in
these matters because they
have implications far beyond
the Klamath River Basin
in Northern California and
Southern Oregon.
Should the Obama admin-
istration successfully curtail
and ultimately shut down ag-
ricultural production in these
valleys, they are certain to do
the same elsewhere in the ru-
ral West and Midwest.
Lower U.S. agricultural
production can lead to only
one result: higher food prices
or more imported foods from
less regulated Third World
countries. Now, is that a leg-
acy that Americans wish to
leave to their children and
grandchildren?
Lawrence Kogan serves
as counsel to the Klamath
Irrigation district. He is man-
aging principal of the Kogan
Law Group P.C. in New York.
Readers’ views
What’s Upstream
educates public
Regarding What’s Up-
stream. People who no lon-
ger live close to the land
have difficulty learning
how their food is produced.
They need to know. Adver-
tising is one way to share
that information.
The Swinomish bill-
boards depict what is hap-
pening across Washington
state and the nation, not
literally but symbolically.
There are few cows wading
in streams. Most milk cows
live out their short lives in
crowded barns and cor-
rals walking in and sleep-
ing on their own waste
products.
Managing the waste is
such a big problem that
Washington has a state run
program for that purpose
alone. And it is not work-
ing.
Make no mistake about
it, every time we buy a
quart of milk we pay for in-
dustry approved billboards
that show happy cows
grazing on green grass.
This is not reality. Crit-
ics of the Swinomish out-
reach do not argue with
the truth in the message,
only with how it was fund-
ed. Concentrated Animal
Feeding Operations (CA-
FOs) pollute the water-
ways. There is simply too
much manure.
Fishing and shellfish
harvest are agriculture,
too. The rivers and the
oceans feed the world. And
they are in trouble, in part
due to pollution from in-
dustrial agriculture.
The only river that ben-
efits from suppressing this
message is “De Nile.”
Now a farmer in What-
com or Skagit County does
not store or over apply ma-
nure with the intention of
killing shellfish in Puget
Sound or salmon in the wa-
tersheds.
He just wants to make a
profit. How can the people
who depend on the fisher-
ies, and there are many, pro-
tect their own livelihoods
and thrive as well? One an-
swer is to educate the pub-
lic. Sure it hurts, but peo-
ple need to know that there
are consequences to our
actions.
Jean Mendoza
White Swan, Wash.
broadly stretches the common
exercise of the authority.
But in granting illegal
immigrants temporary legal status
and work permits, the president
has exceeded his constitutional
authority. The Constitution
(Article 1, section 8) gives
Congress sole power to “establish
a uniform rule of naturalization.”
Congress has enacted laws that
outline the process for immigrants
to be granted legal status in the
United States, and the president
cannot change that by fiat.
“It’s as if the president is
defining the policy and the
Congress is executing it,” Justice
Anthony Kennedy said. “That’s
just upside down.”
Exactly. Only Congress can
change the law.
The law should be changed
to provide deserving illegal
immigrants living and working
in the United States who meet
strict requirements a pathway to
permanent residency. But, this is
not the way.
BLM Resource
Management Plan
fails Western Oregon
By NICK SMITH
For the Capital Press
I
t would be nice if groups
could sit at the table with
the Bureau of Land Man-
agement and hammer out
differences over future man-
agement of Western Oregon’s
O&C forests, as the Capital
Press recently suggested.
Unfortunately, that’s not
how the agency operates these
days, especially considering
how the BLM developed its
proposed Resource Manage-
ment Plans over the past three
years. With the agency pro-
posing to lock up 75 percent
of its forest lands from active
management, it’s difficult to
see how the BLM is achieving
any level of balance.
O&C mandate
Unlike national forests, the
O&C Act clearly requires the
BLM to manage its Western
Oregon lands for the benefit
of host counties. For years the
agency honored this unique
mandate. Not only did this
partnership support jobs and
prosperity in our rural, for-
ested communities, it enabled
counties dominated by these
federal lands to provide es-
sential services to its citizens.
Under this partnership,
counties have also voluntari-
ly contributed a portion of
their timber receipts back to
the lands, investing in proj-
ects that help keep our forests
healthy and accessible.
A cinderblock
Today, timber harvests on
O&C lands have dropped over
80 percent, and timber receipt
revenues are 35 percent of the
historic average. Our forested
communities suffer from high
unemployment and poverty.
County budgets, already cut
to the bone, will now face tru-
ly draconian reductions as the
so-called “timber payment”
program expires.
Federal forest lands, espe-
cially drier forests of South-
west Oregon, are succumbing
to catastrophic wildfire, which
are also threatening adjacent
private timberlands within the
O&C checkerboard. Rather
than providing our counties
and communities a lifeline by
following the law and honor-
ing the principles of the exist-
ing Northwest Forest Plan, the
agency threw us a cinderblock.
The proposed plan leaves
just 19 percent of the land base
for sustained yield timber pro-
duction. A portion of the har-
vest volume offered under the
plan would come from light-
touch thinning on its reserve
land, which is not a sustain-
Guest
comment
Nick Smith
able source of timber over the
long-term.
Harvest reductions
Even worse, the plan
would reduce timber harvests
in the southern and coastal
BLM districts by 52 percent.
If the plan is ever implement-
ed, it will cost jobs where
BLM forest ownership is
highest, and further decimate
the forest products infrastruc-
ture where it’s most vulnera-
ble. The plan will also offer
no relief to threatened species
like the spotted owl, whose
population will continue to
decline due to the barred owl
and whose “critical habitat”
will continue to be destroyed
by stand-replacing fire.
The new resource manage-
ment plan falls short of the
promises made to Oregonians
under the Northwest Forest
Plan. Regrettably, there’s no
reason to believe the BLM
will be any better at imple-
menting this new plan. That’s
because the plan doesn’t ad-
dress any of the fundamental
problems, including litiga-
tion, appeals, and interagen-
cy consultation, which have
prevented the agency from
implementing forest projects
in the past.
Counties ignored
The counties, in particular,
participated in good faith in
the BLM’s planning process.
Throughout 2015, many tried
to convince the agency to of-
fer planning alternatives that
upheld federal law. Those ef-
forts were repeatedly ignored,
so it’s no surprise the coun-
ties have no alternative but to
challenge the BLM in court.
This fiasco demonstrates, once
again, why we need Congress
to provide a permanent solu-
tion for the management of
O&C lands.
Many of us recognize that
we will never return to past
harvest levels. But it’s possi-
ble to honor the O&C Act and
sustainably increase timber
harvests while assuring rec-
reational opportunities, clean
water, wildlife habitat and oth-
er values.
It’s too bad the BLM never
offered that chance.
Nick Smith is executive
director of Healthy Forests,
Healthy Communities, a
nonprofit, nonpartisan orga-
nization that advocates active
management of federal forest
lands.