Sedona AZ (August 25, 2015) – On October 18, 2012, Angela LeFevre, current City of Sedona Councilor and a very vocal supporter of KSB, had released in her behalf by Steve DeVol, owner and publisher of Sedonadotbiz and a former President of KSB, a campaign video of her failed 2012 run for Arizona Legislative District 6 House of Representatives. (The link to this video is here.) The video was a plea for the defeat of Arizona State Proposition 120, which this writer also opposed, but for different reasons than LeFevre. In the midst of the current debate over the proposed Sedona-Verde Valley Red Rock National Monument designation (hereinafter referred to as the “SVVRRNM”), Councilor LeFevre and KSB, the Sierra Club, Sedonadotbiz, Congressperson Ann Kirkpatrick, House candidate and current KSB President Tom O’Halleran, and the advocates for the passage of the SVVRRNM designation tend to mimic one another. Councilor LeFevre also gives the appearance of speaking for the entirety of the SVVRRNM advocacy group. In other words, it seems they all speak with one voice for support of the subject national monument designation proposal. So, if any of her (LeFevre) spoken advocacy of federal land stewardship is faulty, and no other advocates disagree with her, then it has to be assumed that the entirety of the official advocacy group agree with her statements.
During the taping of this video, however, LeFevre made two interesting comments, mimicked by KSB, that caught my attention and should catch the attention of every citizen of Sedona and the Verde Valley. I do not recite these two statements in the context of Prop 120, or its fortunate demise, but rather in the context of the related belief-system(s) of the majority of supporters of the Sedona-Verde Valley Red Rock National Monument designation, for whom she unofficially speaks and whom they parrot, including Keep Sedona Beautiful, the Sierra Club, Rob Adams, Tom O’Halleran and Ann Kirkpatrick. The two videotaped public statements I refer to occur at the 4:42 mark and again at the 5:05 mark. Beginning at the 4:42 mark, candidate LeFevre remarks “…our federal government does an awful lot of work to keep this place the way it is. They are stewards. There are hundreds and hundreds of instances where our federal government does an amazing job of protecting our lands…” and at the 5:05 mark she launches into this “…Sovereignty [of states] is a misnomer when it comes to one state which is a part of the United States of America and I don’t think that trying to create a sovereign state of Arizona does us any good whatsoever.”
These statements evidence a complete and utter ignorance of the Constitution of the United States, its Amendments (especially the Tenth), the interpretive rulings of the Supreme Court of the United States relative to state’s rights and sovereignty, the interpretive rulings of the Supreme Court of the United States and U.S. federal Appellate Court’s rulings concerning the Property Clause of the U.S. Constitution, U.S. CONST., Art. IV, § 3, d. 2., and the National Park Service Organic Act, 16 U.S.C. § 1 (1994), and of our Founding Father’s Federalist Papers, not to mention the repeatedly and overwhelmingly demonstrated incompetence of the various federal bureaucratic agencies charged with the duty of federal land, resources, and antiquities management that I have pointed out in my two articles here at the SedonaEye.com entitled “Is there a National Monument designation downside? Parts I & II.“
The latest example of incompetent and dangerous federal stewardship subject to the Antiquities Act of 1906 is the environmental catastrophe that has devastated gorgeous Durango, Colorado and Monument Valley, Arizona which is immediately downstream from Durango’s Animas River. Or, as Arizonans, you might want to think back to the June 2002 Rodeo-Chediski Fire which began near Cibique, Arizona—that fire burned over 462,000 acres, caused evacuation of over 8,000 people, destroyed 426 residences and cost approximately $153 million taxpayer dollars to fight. Four Type I Incident Management Teams and an Area Command Management Team were involved to fight the largest fire in Arizona history. The Rodeo-Chediski Fire was human-caused, but its massive devastation was exacerbated by the failure, for decades, of the USFS failure to clear underbrush from the forest floor and failure to cut-in access roads for future fire equipment to use, not to mention federal misallocation of aerial assets in a timely manner.
And then, there is the story of one of the most beautiful of all National Monuments…the Organ Pipe National Monument in southern Arizona, which has been almost irreparably damaged from decades of unrestricted illegal immigrant traffic and commandeering by highly armed Mexican drug cartel operatives. Several years ago I sent pictorial evidence of this heart-wrenching damage on a massive scale (and that is not a grossly overstated adjective to prejudice the readers of this article) to Marlene Rayner of the Sierra Club who chose to ignore the issue to my knowledge and certainly won’t acknowledge this fiasco now. So much for the politically motivated support for KSB and the Sierra Club whose belief systems, relative to the proposed SVVRRNM designation, are borne of a Marxist utopian concept of federal land, resources, and antiquities stewardship which hasn’t performed well in nearly 40 years. Rethink this paragraph in light of Angela LeFevre’s aforementioned public statement “…our federal government does an awful lot of work to keep this place the way it is. They are stewards.” If this statement is true, then why do we need a new and different Red Rock Country federal stewardship designation and why does it need to be fast-tracked to yet another egregious Presidential Executive Order without any public input from you?
So, why did I choose to entitle this article “Damn All of You Who Want All the Facts!” anyway? Well, it’s obvious! How dare any of you question the authority-status of KSB, the Sierra Club and our would-be “always truthful” politicians who are running for office or in the midst of creation of their own legacies (at least in their own minds!) as to their self-anointed status as our only credible spokespersons concerning federal stewardship? And, this presumed fact, of course, justifies their tactical method of circumventing the 109 year old “tried and true” practice of Congressional debate over the designation of National Parks and National Monuments, subject to the 1906 Antiquities Act, promulgated by fast-tracking the use of the vaunted Presidential Executive Order, so often used by President Obama in order to prevent public discourse vetted through Congress. Right?
OK, I’ve written this last paragraph tongue-in-cheek to underscore the absurdity of permitting the KSB and the Sierra Club and their respective SVRRNM designation supporters to style themselves as authorities and benevolent caretakers rather than propaganda outlets with political motives.
How can I be so audacious as to make this statement? Because, as I’ve already done in my aforementioned articles published here at The Eye, I can easily prove the commission of the sin of omission of relative and detrimental facts left out of the multitude of pro-SVVRRNM presentations that may cause massive loss of support for the proposed Sedona Verde Valley Red Rock National Monument if they were known.
For instance, as I stated in a comment to one of my aforementioned articles, from a thorough reading of the Natural Resources Journal (Vol. 39), report entitled “Not So Helpless: Application of the U.S. Constitution Property Clause to Protect Federal Parklands from External Threats” authored by Harry R. Bader, I feel it necessary to address the following again as an absolutely critical matter of concern relative to the proposed Sedona Verde Valley Red Rock National Monument designation:
[For the record, I am not a licensed attorney. Anything I’ve written in this commentary should be reviewed by legal counsel for Keep Sedona Beautiful and our district’s Congressional delegation who intend to request of President Obama that he sign an Executive Order creating the SVVRRNM designation.]
Many conservationists worry that National Parks and Monuments may be threatened by development activities occurring outside established park or monument boundaries, thereby threatening preservation objectives.
Currently, the extra-territorial reach of the federal Constitution’s Property Clause enables park and monument managers to address perceived external threats to park and monument integrity. The Property Clause is available, and has been successfully relied upon, to control activities adjacent to, or within the perimeter area of, a federal conservation unit which significantly interferes with the primary purposes for which the federal land is designated.
The U.S. Supreme Court and Appellate Courts have consistently ruled that under the Property Clause of the U.S. Constitution, U.S. CONST., Art. IV, § 3, d. 2., and the the National Park Service Organic Act, 16 U.S.C. § 1 (1994), that the power of Congress over the public lands is without limitation.
However, these cases only address threats to federal land management objectives resulting from state and private conduct occurring upon the federal lands. The issue soon arose, however, as to whether federal agencies may use the Property Clause, and their enabling statutes, to protect public lands from extra-territorial threats. A federal court first addressed this issue in U.S. v. Brown, 552 F.2d 817,817 (8th Cir. 1977) just one year after Kleppe v. New Mexico ruling, 426 U.S. 529 (1976), and Kleppe, 426 U.S. at 540.
In the Brown case, the Court ruled that the Property Clause is broad enough to reach beyond territorial limits. Applying this rule to the facts presented in the case, the court stated that Congressional power over federal lands includes the authority to regulate activities on Non-Federal public land/waters in order to protect wildlife and visitors on the federal park land. The Court, relied solely on the Property Clause, requiring no additional statutory authorization from Congress to permit the Park Service to regulate conduct on non-federal property.
The next important case addressing extra-territorial application of the Property Clause was Minnesota v. Block wherein the Court upheld the a state statute finding that “Congress’ power must extend to regulation of conduct on or off the public land that would threaten the designated purpose of the federal lands,” 660 F.2d 1240,1249 (1981). Almost any state activity, even the most traditional of police powers endeavors, fall before the Property Clause if the activity poses a significant impediment to federal land management objectives.
Federal ability to reach beyond the confines of public land and regulate activity on adjacent state and private lands has startled many states, particularly in the West, where federal lands are extensive. When deciding whether it is appropriate for federal agencies to regulate private and state property to protect federal lands from external threats, the federal courts have consistently ruled that several rules must be developed to determine the availability of the Property Clause for extra-territorial application. The rules that may be gleaned from case law can be generalized as relating to three primary subject areas: (1) the location of lands to be regulated in proximity to federal land, (2) the purpose which the regulation is to serve, and (3) the nature of the federal interest to be protected.
In order for the Property Clause to bestow its enormous extra-territorial power, each rule must be satisfied.
Private and state lands subject to regulations under statutes pursuant to the extra-territorial application of the Property Clause must be within the perimeter area of a designated conservation unit or ENTIRELY SURROUNDED by federal lands (as would be Sedona and the Village of Oak Creek) under various management agencies. This is known as the “inholders rule.” Under the “inholders rule” a property owner within federal unit perimeters falls subject to potential regulation automatically. The “inholding rule” gives reasonable notice to potentially regulated parties that the application of agency rules may be extended “extra-territorially” towards them, but it does place an absolute limit on the extra-territorial extension of the Property Clause.
Thus, this question, from an ethical if not legal perspective, should be addressed in the Keep Sedona Beautiful, The Sierra Club, and the pro-SVVRRNM designation websites, as follows:
Is it possible, that it could be interpreted under the above mentioned “inholding rule” that the federal jurisdiction of the Sedona-Verde Valley Red Rock National Monument would extend into the Village of Oak Creek and the unincorporated environs of the Verde Valley and possibly into the incorporated municipalities of Sedona, Camp Verde, Cottonwood and Clarkdale that would be immediately adjacent to the proposed SVVRRNM designated boundaries? If the inholding rule can be applied to the extra-territorial areas just mentioned, the fact of local self-governance could be impaired and we could find the place we live and love under indirect federal authority. At the minimum, if the inholding rule does apply in our case if the subject National Monument designation is accomplished, this could give the Feds a choke-hold on our local economy.
Have the hard-charging proponents of the subject National Monument designation obtained a legal opinion from an attorney thoroughly acquainted with the current case law regarding the inholding rule of the U.S. Constitution’s Property Clause as it would, or would not apply, to the proposed SVVRRNM designation? I doubt it, and this is why I question all commenters who rabidly imply or state that Keep Sedona Beautiful is an authority rather than a purveyor of propaganda motivated by a political purpose.
The 10th Amendment Movement has spread to 32 state legislatures...
Finally, as to the sovereignty of the State of Arizona the Tenth Amendment says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Apart from the Supremacy Clause, limitation of state authority is an issue that is left to the people of those respective states… and that fact does define “sovereignty.“
The enforcement provision of the Tenth Amendment is known as the Nullification Clause which more generally falls under the law of agency wherein the principals (the states) may revoke the agent’s (the federal government’s) authority at will. It would be unreasonable to force the principals to honor promises of an agent that has acted outside the limits of its authority as set out in the document that created the agency in the first place…the U.S. Constitution. Can the National Monument proponents find a Constitutional lawyer to dispute this? Of course, but then the issue is debatable, isn’t it?
And that’s the point…if the issue is debatable, then it should be in front of Congress, not on the President’s desk!
So notwithstanding, subject to the intent and provisions of the Tenth Amendment which I just stated, namely, the Nullification Clause, Arizona voters approved Prop 122, in the General election last November, a state constitutional amendment that enshrines the anti-commandeering doctrine in the state constitution. Arizona will now have the ability to “exercise its sovereign authority to restrict the actions of its personnel and the use of its financial resources to purposes that are [only] consistent with the [U.S.] Constitution.”
In other words, the people of the Arizona now have the power to prohibit their state’s cooperation with the federal government in the implementation or enforcement of federal acts or regulations they deem unconstitutional. That includes Presidential decrees by un-legislated Executive Orders. As the Tenth Amendment Center says, “Despite what federal supremacists tell you, there is absolutely nothing that says the states have to help the feds with any federal program. The constitutionality issue doesn’t even come into play.”
So, if you feel that you need to expressly oppose the Sedona-Verde Valley Red Rock designation, let your Congressional representatives know, and rest assured that if President Obama tries to create the designation as a matter of law by Executive Order, it can and will be challenged in the next Congress in 2016-2018 or by the state’s legislatures subject to the Tenth Amendment.
It is very EASY to send your vote against the subject “Sedona-Verde Valley Red Rock National Monument” designation to your Congressional Representatives in Washington, D.C. Just go to the link below, open it, fill out the requested information fields and hit the big red…VOTE NO. That’s it, and your vote and your voice will be sent to your Arizona Congressional delegation in Washington.