Federals Act Like Mafia Dons;
Offers That Can’t Be Refused

By William Perry Pendley

(Editor’s note: William Perry Pendley is president and chief legal officer for Mountain States Legal Foundation, a public interest law firm specializing in issues of private property and individual liberty.)

In Michigan's Upper Peninsula, near the tiny town of Watersmeet, Kathy Stupak-Thrall owns a tiny cabin her grandfather built next to Crooked Lake in 1939. Although the U.S. Forest Service owns the land adjoining the southern portion of Crooked Lake, Michigan law guarantees Stupak-Thrall the right to use the surface of the lake. Even though the USFS land is wilderness, Stupak-Thrall's rights are guaranteed by the 1987 Michigan Wilderness Act.

All that is irrelevant to the USFS. The federal agency and its lawyers argue that Stupak-Thrall has no right to use Crooked Lake. They have used every possible legal rationale to deny Stupak-Thrall rights guaranteed her by 161 years of Michigan law and a 1987 federal law. Despite the willingness of federal lawyers to say anything to win, Stupak-Thrall has fought the government to a standstill; better yet, she has started to win. There's more.

For years the USFS and its lawyers told federal courts that they know where the wilderness boundary is and that it includes Stupak-Thrall's property. However, the USFS now admits there is no official map or boundary! Caught in a lie, and on the losing side of federal litigation, the USFS offered to put an end to years of litigation by buying Stupak-Thrall's property. While she has no intention of selling — or selling out — not everyone has her courage.

Half a continent away in the State of Utah, Governor Mike Leavitt inked a deal with Secretary of the Interior Bruce Babbitt under which Utah's complaints over President Clinton's unprecedented 1996 federal land grab would be resolved.

Leavitt was furious over Clinton's surprise decision to lock up 1.7 million acres of southern Utah, placing off-limits a trillion-dollar coal deposit, of which $200 million worth of coal belongs to Utah. So livid was Leavitt that he filed a lawsuit against Clinton, alleging violations of the Constitution and several federal statutes.

All that has now been forgiven since Leavitt, at the request of the Clinton Administration, vetoed an appropriation of several hundred thousand dollars for Utah to litigate the case and instructed his lawyers to take no further action.

Whether the deal under which Utah turns over all state lands in the vast Grand Staircase-Escalante National Monument to the federal government in exchange for $50 million and federal lands elsewhere in Utah is a good deal is not the point. (Rural Utahans, especially those in Kane and Garfield counties, say it is a terrible deal.)

The point is the deal happened for one reason. Clinton made an unprecedented and many legal scholars say unconstitutional and illegal use of the Antiquities Act of 1906, giving Utah a Hobson's Choice: either endure years of costly litigation against the world's largest law firm — the federal government — or take whatever deal Babbitt offered. Utah took the deal.

Meanwhile, in Augusta, Maine, the Edwards Manufacturing Company announced its plans to demolish the nation's first hydroelectric facility ordered destroyed by the federal government. That agreement follows the stunning decision in November 1997 by the Federal Energy Regulatory Commission ordering the destruction of the 161 year-old dam to assuage environmental groups.

One FERC commissioner dissented, saying that the FERC has no legal authority to order a hydroelectric facility demolished. That was irrelevant to Clinton's FERC, whose radical environmental agenda was advocated by Babbitt in 1992. The owners of the Edwards Dam faced the Hobson's Choice faced by Stupak-Thrall and Utah: commit to years of delay and expensive litigation or take whatever the government offers.

There is something wrong with a government filled with officials who engage in endless illegal, even unconstitutional, action so as to drive its citizens, corporations and sovereign states to the bargaining table to accept in the words of Mario Puzo's The Godfather, "an offer they can't refuse."

We expect such things from fictitious mobsters. We deserve better of a "government of the people, by the people and for the people."