(Thomas Mitchell/4TH ST8) I thought it was a telling sign of our times when Las Vegas casino owners expressed greater regard and respect for the Chinese communist government of Macau than the one in D.C., but, when a Cuban immigrant compares a federal agency to the government of Fidel Castro, it is the last nail in the coffin of liberty and private property rights.
On Monday NPRI’s Center for Justice and Constitutional Litigation filed a claim with the U.S. Fish and Wildlife Service for $86,000 in actual damages, claiming “negligent and lawless actions” by the agency caused flooding damage to a church camp in Amargosa Valley. (As first reported here.)
The private camp is owned by the Ministero Roco Solida Church (Sold Rock). The pastor of the church and operator of the camp is Victor Fuentes, a Cuban immigrant, who compared the federal government's actions to Castro's confiscation of the private property of the Bacardi rum-making family.
The camp was flooded in December 2010, shortly after Fish and Wildlife completed a project to reroute a stream that ran through the church camp. Fuentes said he had been warned by an agency ranger that flooding might occur during heavy rains because of how the rechanneling was done. Fuentes noted the new channel was on higher ground and he did not know how they could expect water to flow uphill.
Asked why the federal agency rerouted the stream in the first place, Joseph Becker, director and chief legal officer of CJCL, replied, “We’re not exactly sure. I mean there’s talk about preservation of some kind of fish, but we believe that the idea is for there not to be any private land owners out there and this was one of the ways of making that happen.”
Asked at an NPRI luncheon today about why Fish and Wildlife acted in the way it did, Becker replied, “I think their assumption is that the water's theirs. I mean that's the first problem. When you look at the facts of what they've done in the context of what they've done to other people. It seems to me they wanted the land. They didn't have the money at the time to buy it. They're frustrated by the fact that the people who bought it bought it, and they don't like the fact there are a bunch of people out there. …
“Our theory is that they just did what they needed to do to make people leave, so there are no longer what we call in-holders, people who private land surrounded by the wildlife refuge.”
The 40-acre camp, dubbed Patch of Heaven, is surrounded by the Ash Meadows National Wildlife Refuge. Fish and Wildlife has purchased a number of privately held parcels of land over the years to consolidate the refuge.
In an article in the Pahrump Valley Times in December 2009 Fuentes and his wife Annette expressed concerns about whether the rerouting would completely dry up the stream through the camp, which is a major attraction for visitors.
“Our stream that flows through there, they're going to take the water off of there, divert it above us and take it off our property, and it's been there for years. They're redoing stuff on the refuge. We're very upset about it,” Annette Fuentes was quoted as saying. “That's why we bought the property, because the water flowed through there. It's beautiful, peaceful, and it's a property value as well.”
The story quoted a federal agent as saying the plan was to put the stream back on its original path and reintroduce speckled dace, an endangered minnow, which needed faster flowing, cooler water.
Original path? Streams and rivers through flat lands, like the Amargosa and Mississippi valleys, change paths frequently due to flooding and silting. There is no original path.
Becker said there are maps showing the stream running through the Patch of Heaven property in the late 1800s.
Though Becker did not commit to any further litigation, he conceded, whatever happens with the damage claim, there is potential for a federal lawsuit under the Fifth Amendment Takings Clause and/or a case before the state engineer, who under Nevada water law can determine who gets water rights.
As a mining state, Nevada uses the Appropriation Doctrine for water rights — first in time of use for a beneficial purpose is first in rights.
“What’s happened at Patch of Heaven is the sort of tyrannical actions that emerge when you have a government agency — in this case the U.S. Fish and Wildlife Service — not only making the rules, but also administering them and then adjudicating the resultant disputes,” Becker said. “There's little-to-no accountability, and that must stop.”
