Sunday, December 13, 2009

Parallel Universe - When Two Worlds Collide: A 2009 three-part article series for the Progressive Rancher

Parallel Universe - When Two Worlds Collide: A 2009 three-part article series for the Progressive Rancher

Parallel Universe, Part One: When Two Worlds Collide – Ranching and litigation

Article citation: "First published in the August/September 2009 issue of Progressive Rancher Magazine."

Parallel Universe, Part Two: When Two Worlds Collide – Justice and ‘equal access to justice’

Article citation: "First published in the October/November 2009 issue of Progressive Rancher Magazine."

Parallel Universe, Part Three: Ranchers ARE Environmentalists

Article citation: "First published in the December 2009 issue of Progressive Rancher Magazine."

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Parallel Universe, Part Three: When Two Worlds Collide - Ranchers ARE Environmentalists

Parallel Universe, Part Three: When Two Worlds Collide - Ranchers ARE Environmentalists

December 11, 2009

By Julie Kay Smithson, property rights researcher, London, Ohio and

Some wise person once said that, before you can know where you’re going, you’ve got to know where you’ve been. Historic ranches garner awards, their roots soaking up the fertility of the soil, the lifeblood of judicious water use and the bounty to be had from an eagerness to try new things. From crops to livestock, new ways to grow both may mean trying entirely new concepts. Ranching in the New West means embracing experience while leaving the door open for new techniques. Ranchers put their all into their ranches, and it shows. The line of distinction -- between optimum habitat for people, livestock and wildlife, and poorly managed, or non-managed, federally controlled land – shows who the real stewards of the land and water are: ranchers.

The Purdy Ranch – Picabo, Idaho

Beavers and the Downcut Riparian: Copper Creek, on the 10,000-acre Purdy Ranch has been in the same family since the mid-nineteenth century. About that time, beavers were trapped out for their pelts. By the 1970s, 150 years later, the creek sported the regular symptoms of watershed disease -- soil compaction, sagebrush invasion, intense storm water downcutting. Rancher and conservationist Bud Purdy began a combined, deferred grazing plan (keeping cows out of the riparian during critical times) with seeding and brush control. At first, he tried constructing dams to reduce channel erosion, but 70 percent of them would not hold against flood peaks. Lew Fence (Wood River Conservation and Development Council) and Dale Roberts (Soil Conservation Service) suggested beavers, because beaver dams hold water better than human equivalents, and a colony of beavers build and re-build dams for free (or, at least, for inner bark). The successful results: The water table rose, 33 beaver dams were built in five years, the pool area exceeded 6 acres with correspondingly more wildlife, riparian area, longer flow seasons and some small trout. Noteworthy is the combination of deferred grazing, beavers and the "Beaver Committee," a unique interagency group that transplants "problem" beavers (beavers that chew up semi-rural apple orchards), relocating them to livestock-raising watersheds. The new co-evolution of ranchers and conservationists usually requires new, less formal public/private institutions like the Beaver Committee. – Source: "Co-Evolution of Ranching & Conservation Communities" (excerpt) by Peter Warshall, Originally published in Whole Earth magazine, Issue 90: Summer 1997, Page 70.,+Idaho%22&cd=5&hl=en&ct=clnk&gl=us&lr=lang_en
On August 20, 2002, Bud Purdy was honored for his efforts to improve grazing land management on privately owned grazing lands by the Natural Resources Conservation Service (NRCS). NRCS State Conservationist Richard Sims recognized Purdy for his contributions as a member of the National Grazing Lands Conservation Initiative Steering Committee. The USDA Honor Award, which Sims presented to Purdy, is the most prestigious honor bestowed by the Secretary of Agriculture. "The honor award is a tribute to Bud for his commitment to meeting conservation needs of private grazing lands," said Sims. "As a member of the national steering committee, he has volunteered hundreds of hours of his personal time to increase public awareness of the values of the nation’s private grazing lands. His ability to work effectively with all levels of public and private organizations has been critical to the success of the Grazing Lands Conservation Initiative. We also value his expertise as a member of the Idaho Grazing Lands Steering Committee." Purdy represents the Society for Range Management on both the national and state Grazing Lands Conservation Initiative steering committees. Source:

Maddux Cattle Company, Chase County, Nebraska

On October 17, 2009, southwestern Nebraska rancher Jack Maddux, of the Maddux Cattle Company in Chase County, received the 32nd annual Golden Spur Award, naming him the nation's top rancher. '"More than bringing prestige to an individual, the award spotlights the humanistic and scientific contributions of the livestock and ranching industries," says Robert D. Josserand, chairman of the National Cattlemen's Foundation, which nominated Maddux for the award.' Source: Nebraska Farmer, October 26, 2009. The ranch, homesteaded in 1886, is very productive, successfully running red Angus 123 years later.

"Great ranches are not made of the dirt, water, wind and grass that comprise their environment. They are formed and sustained by the character of the people attached to them." – Charles P. Schroeder, executive director of the National Cowboy and Western Heritage Museum in Oklahoma City, Oklahoma.

The XXX Ranch, Tarrant County, Texas

“I want to assure you that among the cattlemen, there is a great deal of pride and a little competitive spirit to see who can be the best wildlife manager. ... I just wish, very much, that the working environmentalists -- and I guarantee you there is no more dedicated environmentalist than the farmer or rancher who lives on that land, makes his living from it, works with it all year long, year after year, and wants to leave it better than he found it -- were more recognized by the nominal environmentalists, who would rather talk about it than do it. ... Some have blamed greed of early ranchers for degradation of rangelands, when almost invariably it was lack of knowledge that led to decline. The science and art of rangeland management has been developed only in the past 50 years. With this knowledge -- provided by SCS (Soil Conservation Service) technicians through locally governed Soil and Water Conservation Districts, using information developed by federal and state experiment stations and the ranchers and technicians themselves -- dedicated ranchers voluntarily made tremendous strides in brush suppression, grazing management, and restoration of rangelands during the 1940s, 50s, and 60s. Progress has been slowed in the past 20 years by reduced technical assistance available for grazing lands and by the increase of production costs over prices received that has reduced capital available for needed improvements. During recent years, brush encroachment, especially by juniper, has taken over abandoned cropland fields and continued to invade rangelands. ... it is astonishing that the U.S. Fish & Wildlife Service says that endangered species recovery plans are exempt from the National Environmental Policy Act (NEPA) process. It is hard to believe that anyone would consider a recovery plan not to be a major federal action, and I hope that policy statement will be carefully investigated by congressional staff for legitimacy.” – Source: Excerpted (pages 84, 85, & 218, from a statement by John L. Merrill, Burnett Ranches; Professor, Texas Christian University; Member of the National Steering Committee for the Grazing Lands Conservation Initiative (GLCI). "Full text of 'Department of Agriculture's activities related to the yellow-cheeked warbler: hearing before the Subcommittee on Department Operations and Nutrition of the Committee on Agriculture, House of Representatives, One Hundred Third Congress, second session, September 16, 1994, Cleburne, Texas.'" It should be noted that John L. "Chip" Merrill had, at that time, directed the ranch management program at TCU for the past 33 years, since 1961, as well as being a past president of the International Society for Range Management, a long-time member of the Wildlife Society, professional member of the Society of American Foresters, and a director of the Texas and Southwestern Cattle Raisers Association. Though the Internet mentions many accolades he’s received, he prefers to continue learning rather than rest on his considerable laurels, still at the helm of the XXX Ranch in Tarrant County, Texas.

The Adams Ranch, Meade County, Kansas, and Beaver County, Oklahoma

"Biological Control Demonstration Project: Adams Ranch, Meade County, Kansas. The landowners are demonstrating biological control of tamarisk using goats. Approximately 100 head of goats were confined for feeding in a 10-acre plot infested with tamarisk. The project offered much information on appropriate stocking rates, predation, viability, and feeding habits of the goats." – 10-Year Strategic Plan for the Comprehensive Control of Tamarisk and Other Non-Native Phreatophytes. The project continued for a second year, but the goats didn't consume the tamarisk to the point of its demise, and the trial was halted. Source: (Page 19 of 39 pages; 2.98 MB)

"We've been raising cattle on this land since 1890. We have to be good stewards or we'd go out of business. It's not our livelihood; it's our life! We spend thousands of dollars getting rid of noxious weeds and we have more of the desirable grasses." – Rancher Judy Adams.

The Three Circle (000) Livestock LLC – Carbon and Albany Counties, Wyoming

“The 2nd Annual NACD/NRCS (Natural Resources Conservation Service) Olin Sims Conservation Leadership Award was presented to Wyoming rancher Ralph Brokaw on February 3rd, 2009, during the National Association of Conservation Districts (NACD) annual meeting in New Orleans. Brokaw was chosen for his outstanding leadership and service in conserving natural resources. … The Brokaw family ranch, the Three Circle (000) Livestock LLC, located near Arlington, Wyoming, is a testament to his passion for healthy lands. His commitment to natural resource conservation management makes him a leader and example in his community and throughout Wyoming. Bobbie Frank, Executive Director of WACD (Wyoming Association of Conservation Districts), said, “I am sure I speak for all of our Conservation Districts in congratulating Ralph on receiving the Olin Sims Leadership Award. It is a very deserving award for the work Ralph has done for natural resource conservation efforts in Wyoming, the region and at the national level. This award will hold significant meaning to Ralph I am sure, given that it is in memory and honor of his best friend and longtime mentor, Olin Sims.” Established in tribute to the late NACD President, Olin Sims, the award recognizes outstanding conservation leadership at the state and local level. The award is presented annually to an individual, based upon superior service to the conservation community in promoting conservation on private lands. Sims, a rancher from McFadden, Wyoming, lived a life distinguished by years of volunteer service to conservation. “Olin was a true conservationist who was equally committed to practicing conservation and advocating for it,” said NACD President, John Redding. “This award epitomizes the conservation leadership and integrity that was his life and highlights the leadership of other conservationists who assume the mantle of conservation leadership into the future.” Source: Ralph also received the 2002 Landowner of the Year from the Wyoming Game and Fish Commission for his outstanding commitment to wildlife habitat, including rotational grazing, riparian areas, managed hunting, etc.

Baker Ranches, Inc. – Nevada and Utah

Dean Baker, eastern Nevada rancher and longtime Nevada Cattlemen's Association member -- as well as being on the Board of Directors, the Executive Committee, a Second Vice President, and on various other boards & committees -- was named Nevada’s Outstanding Rancher of the Year in 2003, as well Cattleman of the Year the previous year. Baker Ranches, Inc., run by Dean, his wife, Barbara, and sons Craig, David and Tom, plus veteran buckaroo Lee Whitrock, straddle the Nevada-Utah border. Of its 12,000 acres, 2,000 are in barley, alfalfa and corn, and the ranch also runs about 2,000 head of cattle, and sells high-quality alfalfa hay to California dairies and Las Vegas area horse owners. " ... Nominees for Outstanding Rancher of the Year are evaluated on their conservation planning and resource management objectives, as well as any innovative or unique management practices." Sources: (Page 1 of 7 pages; 80.06 KB) "The U.S. Bureau of Land Management agencies in both Nevada and Utah have honored Dean for his management of grazing allotments on the public domain." – Baker Ranch: A Success Story, March 28, 2005. The Nevada Agricultural Foundation

Multi-generational ranch families have always hit the ground running, their dedication helping to feed the world. Ranchers already walk the walk, as evidenced by countless hours of physical and mental work. To talk the talk and explain what they already know so well, is difficult for an independent, self-reliant people, but learning to do so will build a communication bridge that will keep them and their world alive and well for another two hundred years.

“And to protect and care for all His creations, God made ranchers.” – Beverly Merritt, Merritt Ranch, Lincoln County, New Mexico.

1,997 words.


Article citation: "First published in the December 2009 issue of Progressive Rancher Magazine."

Thursday, December 10, 2009

Depressurizing this time of year

Depressurizing this time of year

November 28, 2009

By Julie Kay Smithson

This kind of depressurizing isn't about wetsuits and water, but has the same healthful effect.

Many readers are feeling pressured to SSS and SSS -- shop, shop, shop and spend, spend, spend -- at this time of year. It's nice to be able to visit stores and other businesses and give them our business, but do we need to spend simply for spending's sake? How many people do we know that are "hard to shop for" because they already have everything they need?

Here are a few suggestions to help make this Christmas season one you will remember for other reasons besides pressure to spend:

Meet friends/family and take a walk in a nearby park or other relaxing location. Take time to enjoy the beauty of the changing seasons and even bestow random acts of kindness that last a lifetime -- from lying in a pile of leaves to holding gloved or mittened hands and from a friendly hug to a pat on the back for just being able to share such times with others!

Is there a friend or family member that you've not visited with in quite awhile? Consider inviting him/her/them out for a nice meal. The location need not be fancy or high-priced as much as it should be warm and friendly. There are many places to gather and dine that are in Madison County. Go out to eat to a place you can all enjoy, a place you'll be able to hear one another's voices and revel in the retelling of special times while making a new memory. At meal's end, there are no dishes to wash or kitchen cleanup.

A simple phone call to 'visit' -- when an in-person visit isn't possible -- is comforting and comfortable, especially if you can do it at a time that's good for both caller and callee.

The local thrift store is a fine place to go for great items at terrific prices, and the benefits are far-reaching. Some thrift stores' revenues benefit others in your community, and the recipients of your 'thrifting' can range from shared smiles and conversation with others to simply browsing without the pressure of feeling that you must buy something. If you do make a purchase, spending a few dollars on an item that you are certain a special person will love has several benefits, including the recycling of quality, usable items.

Take a nice evening drive and look at the Christmas garlands and lights that are being added to the nighttime scenery this time of year. There are so many displays 'on display' that you needn't go far afield. For those in your vehicle that may feel the cold more, bring a toasty afghan or other warm snuggly for them, and keep in mind that hot beverages are on hand in many places to warm the hands and innards!

Consider the time-honored things to do, like sit down with a pen and paper or cards (and yes! you can make homemade cards that will be cherished) and simply write a little note or letter to someone to tell them how much they mean to you. Just a heartfelt note like "I miss the good times we've had and relive them with you in memory" or "We need to get together in January; let's set a date, and a 'snow date,' now and make plans to share an afternoon or evening" or "My Scrabble game misses your quick wit" -- there are so many ways to tell others that you care!

Our loved ones whose remains rest in local cemeteries are worthy of a visit, even if you simply sit in your car and remember the good times you had with them. Cemeteries need not be places of sadness, but can be places of solace. Deciding to celebrate the good -- and shed the rest -- is a decision that helps everyone feel better.

Take the time to pause and offer yourself to those that need you. This may be done in many forms and can take the form of Christmas caroling, a warm meal delivered, a plate of warm cookies shared with neighbors, a helping hand lent to a local animal shelter, senior center, rec center, local library, historical center -- the possibilities are many, the results, tremendously uplifting. Animals in need of a walk or a meal -- whether they are our pets, lost/abandoned dogs and cats at the shelter, or the backyard birds/wildlife -- will benefit from a little time, a kind voice and your caring.

Do you know someone who needs to get out and run some errands, but doesn't have transportation? Perhaps you could offer your afternoon and take them to places like the grocery store, Post Office, to visit a loved one at a nursing home or cemetery, etc. You'll both be so glad you did!

Do something as simple as sweeping or shoveling a neighbor's sidewalk or driveway. You needn't do it all, but if you are blessed with energy and a bit of steam, it's a great way to expend both and do a wonderful thing at the same time. People become friends over kindnesses. What better time to stretch out our hands and hearts?

869 words.

Thursday, November 19, 2009

Thank God for farmers and ranchers

Thank God for farmers and ranchers

Thank God for farmers and ranchers, who raise the good food I eat;

May He continue to bless them, through life's bitter and life's sweet;

The best food is that grown locally, of that we can be sure;

And we will learn about that, if we visit our farms & ranches, and take a learning tour!

- Julie Kay Smithson, November 18, 2009 (appreciating America's farmers and ranchers every day of the year!)

FromUsToYou: Meandering

FromUsToYou: Meandering

By Julie Kay Smithson

Meander is something streams and rivers do naturally. Hunting dogs tracking a scent also meander, as the quarry's scent wanders to and fro.

Meandering also seems to be something I tend to do this time of year when out for a walk with Wiggles Blue Heeler. Both of us are so immersed in 'the moment' – from the sights, sounds, smells, textures, and colors, to the rarefied atmosphere that comes to Ohio for a short time in October and November: low humidity – that we just drift back and forth across the paths and trails, tarrying in the sun and reveling in the season.

One spectacular day in early September, Wiggles and I went with friends to Indian Lake and took a ride on a pontoon boat (our very first boat ride!), then had a fine afternoon playing virtual badminton (no net) and cooking out. We all meandered that day, on land and water!

On your path in life – but please, not on the road! – may there be just enough meander to bring you smiles and a full heart!

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Saturday, November 14, 2009

No Trouble with Christmas

No Trouble with Christmas

By Julie Kay Smithson

I have no trouble with this time of year being called Christmas or the Christmas Season. After all, this Christian nation in which I was born and bred, celebrates December 25th as the day Jesus was born to the Virgin Mary and her husband Joseph in a humble stable in Bethlehem.
On the surface, much of the Reason for this Holy Season seems to have been usurped by advertising agencies that have invented other names for Christmas trees, Christmas vacations, Christmas break, Christmas cookies, Christmas presents.

Harried store "associates" -- once known as cashiers -- dutifully recite, "Happy holidays," which provides the perfect opportunity for me to ask meekly, "Which holidays? The 4th of July? Valentine's Day? Which holidays?" The quick, grateful and joyful reply is often, "Christmas!" and we both smile!

Young parents, struggling to make the most basic of ends meet, may be overwhelmed by the advertising blitz that stresses spending over the nativity's sweet innocence. Christmas need not be a financially depleting holiday. Sharing food, Christmas caroling, and random acts of kindness all get gold stars for simplicity and heartwarming goodwill. Simple popcorn, strung together to make outside tree decorations for birds, need not become an obsolete family tradition. In fact, the blending of new traditions -- like LED Christmas lights, which use almost no electricity -- with old can make us smile without the next-month sticker shock of the credit card invoice.

Nearby are Nativity scenes, some with real people and supporting animal cast, at churches, some gracing the front lawns of private homes. Christmas carols, sung by people with hearts full of love and Christian charity, lighten hearts and brighten spirits. Kindnesses bestowed upon friends, family and strangers alike, surge to the forefront at this time of year. From gifting the gas station attendant in need of one or more of the following: warm gloves, hat, ear muffs, coffee, hot chocolate -- to the simple kindness of a 'grocery cart gathering' to help save store employees a little time outside, such actions will warm both the giver and receiver.

From the offerings of warm water, nuts, corn, bread crusts and crumbs and more to the birds and other animals we love to stay wild -- but still revere the directive of Genesis to have dominion o'er them all -- to the special treats we make and gather for our beloved pets, family and friends, the simplest things can become the most cherished memories. From the unused coats we donate to those whose needs outstrip our blessings, to the myriad ways in which we can make a difference just by being a friend, Christmas shines through with Son Light from our souls.

Those of us who have no trouble with Christmas should be saying it out, strong and clear, celebrating the birth of our Lord, Jesus Christ: We have no trouble with Christmas!

477 words.

Thursday, November 12, 2009

Your cravings will tell you ...

Your cravings will tell you ...

that the seasons are changing, sometimes weeks before the calendar.

When you crave a bowl of hot soup, stew or a potpie, it's a sure sign that summer's fled, to be replaced by autumn. When the last of the garden tomatoes have been nipped by frost, it's fall.

We mourn the passing of this season of homegrown fruits and vegetables, farmers markets, and ice cream stands. When cider replaces ice-chilled drinks, the ninety-degree days of this year are history.

As we get "way down in the fall," the taste of Popsicles and Icees gives way to the desire for "something hot." We pore through the pantry to see what soups and hot drink mixes may await us there.

A sign that winter's at our doorstep is the comforting feel of a hot coffee mug in our fingers, its steaming fragrance wafting into our very soul. Candles with scents of bayberry, cinnamon & clove and pine, meld with hot chocolate and spiced teas. Suddenly, the thought of a casserole or a slow-cooked meal means the home will be warmed and "aromatized" in a most pleasing way!
Enjoy this coming snuggle-season by sharing your warm thoughts, and maybe an extra hot meal, with someone who sorely needs the nourishment both offer. Twill make next spring and summer that much more appreciated! Warm up those snow shovels and blowers and think Thanksgiving and Christmas!

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Sunday, November 8, 2009

What if the HSUS actually wanted Ohio's Issue 2 to pass?

What if the HSUS actually wanted Ohio's Issue 2 to pass?

November 8, 2009

By Julie Kay Smithson, researcher

The Humane Society of the United States' President and Chief Executive Officer Wayne Pacelle came to Columbus, Ohio, November 2, 2009, on the evening before Election Day, to restlessly pace a stage in one of the Ohio Historical Society's meeting rooms.

It should be noted that the HSUS has no connection to most local humane societies.

Pacelle began by explaining the HSUS' role as "Celebrating animals and confronting cruelty." A visit to the HSUS website shows this statement to be oft-repeated. The predictable "shock power point presentation" -- showing 'downer' cows in what appeared to be slaughterhouse confines and crowded quarters for hogs -- was flanked by a talk that involved almost half the ninety minutes allotted for the "Columbus Town Hall" meeting.

Wearing what appeared to be expensive leather shoes, in apparent contradiction by his mini-rant about "wearing fur" and mention of having been a "strict vegetarian" for the past 25 years, Pacelle incurred the wrath of more than one HSUS supporter in the 250-person audience -- taking up just half the seats in the meeting room theater venue -- by failing to commit to a ballot initiative.

Pacelle became president and CEO of the HSUS midway through 2004, "... after serving for nearly 10 years as the organization's chief lobbyist and spokesperson." Source: HSUS "About Us" Almost a decade of being steeped in the ways of the professional lobbyist gave Pacelle an education in agendas and being an agent of change. Few, if any, of his Columbus audience, seemed cognizant of the web his talk spun. Knowing the power of molding phrases like "battery cages" and "gestation crates" to a mostly urban group of listeners, Pacelle spoke carefully, statements like "Climate change is a threat to all animals" garnering placid support from those nodding agreement to almost his every word.

Michael Vick and his horrific actions, which led to the torture and death of many dogs -- but only "about 19 months" in prison -- was a sore topic for several in the audience, more than one of whom expressed their disagreement with Pacelle's handling of the case.

Pacelle doggedly stuck to his steering of Vick's milquetoast punishment to a "proactive" meaning of "educating" children, with Vick having the "power to effect change" by speaking out against something for which Vick never expressed remorse. In August 2009, Pacelle stated that Vick "has pledged to make a long-term commitment to participate in our community-based outreach programs to steer inner-city youth away from dog fighting." Source: San Jose Mercury News, October 18, 2009, "Animal rights activists dog Michael Vick":

The Capital Area Humane Society -- an organization with questionable practices -- was lauded at length by Pacelle, while the HSUS boss ignored the tireless work and results achieved by Ohio's dog wardens, animal control officers, and animal shelters.

A real contradiction was stated several times during Pacelle's forty-minute talk. He mentioned the power of strong laws and that many laws not enforced cannot take the place of a few strong laws that are -- then listed the "117 new laws" that HSUS had been instrumental in drafting (writing) and passing in the last year; the "93 new laws" the prior year; the "84 new laws" the year before, and the "65 new laws" the year before. A total of 359 HSUS-influenced laws in four years is anything but "a few" strong laws being enforced.

In a post-election statement, Pacelle said: "We decided to spend nearly no money against Issue 2 and to reserve our energy and resources for [a future] effort." Source: Cleveland Plain Dealer, November 8, 2009, Editorial:

It appears to this writer that Pacelle was imitating Brer Rabbit, asking that, whatever voters did, they should not throw him in the briar patch ... when that is precisely what he and his organization wanted. Pacelle's statement was clear and bears repeating: "We decided to spend nearly no money against Issue 2 and to reserve our energy and resources for [a future] effort."

By passing Issue 2, a stake has been driven straight into the heart of Ohio's Constitution, one which inserts an appointed -- not elected -- board of 13 that are given political power to do as they will. All the HSUS, concentrated animal feeding operations (CAFOs), and other politically and economically-motivated groups need do is get their lobbyists appointed to that board. Ohio voters will then be helpless to remove the proverbial camel from the tent.

Outside the meeting room, refreshments were offered to attendees, including dairy products in the form of "Mini-Moos" half and half creamers. One could only wonder if the creamers came from "free-range" dairy cattle ...

Related definitions:

Concentrated Animal Feeding Operation (CAFO) – An AFO (Animal Feeding Operation) that is defined as a Large CAFO or as a Medium CAFO..., or that is designated as a CAFO... Two or more AFOs under common ownership are considered to be a single AFO for the purposes of determining the number of animals at an operation, if they adjoin each other or if they use a common area or system for the disposal of wastes. [40 CFR 122.23(b)(2)] – U.S. Environmental Protection Agency National Pollutant Discharge Elimination System (NPDES) Glossary

Farm – Land under one operating arrangement on which there were, or are, expected sales of at least $1,000 worth of crops, livestock, poultry, or other agricultural products during the year. – Modified Agricultural Weighted Estimators, By Robert G. Pontius, Jr. Research and Applications Division, National Agricultural Statistics Service (NASS), U.S. Department of Agriculture (USDA), July 1990. Staff Report No. SSB-90-05, Appendix 1: Glossary (page 11 of 14 pages; 1.01 MB)

776 words. With related definitions: 936 words.

Wednesday, October 14, 2009

Parallel Universe, Part Two: When Two Worlds Collide – Justice and ‘equal access to justice’

Parallel Universe, Part Two: When Two Worlds Collide – Justice and ‘equal access to justice’

By Julie Kay Smithson, property rights researcher, London, Ohio and

Today’s atmosphere of seemingly endless litigation, whose outcomes often shut down resource utilization, requires some study to understand. Are the litigants actually “against” the use of resources on, or access to, federal land, or have they other reasons for filing lawsuits? The answer may surprise some readers. It is important to understand why certain actions are being taken that require property owners and resource users to defend their established, proven practices and methods.

Enabling legislation is defined as legislation that authorizes the State to assess, levy, charge, or otherwise mandate payment from external parties and includes a legally enforceable requirement that those resources be used only for the specific purposes stipulated in the legislation.

The methods by which the federal system and other states initially select and then elect or retain judges are varied, yet the explicit or implicit goal of the constitutional provisions and enabling legislation is the same: to create and maintain an independent judiciary as free from political, economic and social pressure as possible so judges can decide cases without those influences. – United States Court of Appeals for the Eighth Circuit, No. 99-4021 (Page 21 of 89 pages)

Enabling legislation also creates an legal environment in which litigation may be filed in order to correct a wrong or wronged party, clarify a statute that was not easily understood or interpreted, set precedent, etc.

The Equal Access to Justice Act (EAJA) Summary (5 U.S.C. § 504; 28 U.S.C. § 2412) provides for the award of attorney fees (up to $125 per hour) and other expenses to eligible individuals and small entities that are parties to litigation against the government. An eligible party may receive an award when it prevails over the government, unless the government’s position was "substantially justified" or special circumstances make an award unjust. To recover “fees and other expenses” under the EAJA, a claimant must show that it is a "prevailing party." Parties are considered to be prevailing parties when they have been successful on any significant issue in litigation that achieves some of the benefit the parties sought. A party must also show that the lawsuit was a material factor in bringing about the desired result and the outcome was required by law and was not a gratuitous act by the government. Finally, whether a party is a small entity for purposes of EAJA is determined by a unique size standard included in the act. Compliance with the size standard is a threshold requirement for an award of fees under the act. – Small Business Administration Office of Advocacy

In 1980, Congress enacted the Paperwork Reduction Act (PRA) in response to the federal government's growing demand for data from small businesses, individuals, and state and local governments, and attempted to institute controls over government requests for data. – 44 U.S.C. § 3501.

The Information Quality Act (IQA), called the Data Quality Act (DQA) by the Government Accountability Office (GAO), is an attempt by Congress to ensure that federal agencies use and disseminate accurate information. The DQA requires federal agencies to issue information quality guidelines ensuring the quality, utility, objectivity and integrity of information that they disseminate and provide mechanisms for affected persons to correct such information. … Questions that remain unanswered about the Data Quality Act are whether agency information quality guidelines apply to rulemaking and whether an agency's denial of a petition to correct information is reviewable by the courts. … Purpose of the Data Quality Act: Congress enacted the DQA primarily in response to increased use of the Internet, which gives agencies the ability to communicate information easily and quickly to a large audience. Under the DQA, federal agencies must ensure that the information it disseminates meets certain quality standards. Congress' intent was to prevent the harm that can occur when government websites, which are easily and often accessed by the public, disseminate inaccurate information. … Quality of Information: First, the agencies were to adopt a basic standard of quality of information as a performance goal, as well as specific standards of quality appropriate for the various categories of information they disseminate. 67 F.R. at 8459. Each agency was required to publish its own guidelines in the Federal Register as well as on the agency's website. Id. In addition, each agency promulgated guidelines that can be found on OMB's website. See and (103 pages; 735.20 KB)

31 U.S.C.§ 1304 – US CODE, Title 31, 1304: Judgments, awards, and compromise settlements. (a) Necessary amounts are appropriated to pay final judgments, awards, compromise settlements, and interest and costs specified in the judgments or otherwise authorized by law when— (1) payment is not otherwise provided for; (2) payment is certified by the Secretary of the Treasury; and (3) the judgment, award, or settlement is payable— (A) under section 2414, 2517, 2672, or 2677 of title 28; (B) under section 3723 of this title; (C) under a decision of a board of contract appeals; or (D) in excess of an amount payable from the appropriations of an agency for a meritorious claim under section 2733 or 2734 of title 10, section 715 of title 32, or section 203 of the National Aeronautics and Space Act of 1958 (42 U.S.C. 2473). (b) (1) Interest may be paid from the appropriation made by this section— (A) on a judgment of a district court, only when the judgment becomes final after review on appeal or petition by the United States Government, and then only from the date of filing of the transcript of the judgment with the Secretary of the Treasury through the day before the date of the mandate of affirmance; or (B) on a judgment of the Court of Appeals for the Federal Circuit or the United States Court of Federal Claims under section 2516 (b) of title 28, only from the date of filing of the transcript of the judgment with the Secretary of the Treasury through the day before the date of the mandate of affirmance.

The Financial Management Service (FMS) is a bureau of the U.S. Department of the Treasury. Treasury’s role is to “oversee” the use of this appropriation. "The Judgment Fund is available for court judgments and Justice Department compromise settlements of actual or imminent lawsuits against the government." – Overview: Judgment Fund: Programs and Systems: Financial Management Service or 866-277-1046

Because Congress has not articulated a specific standard of adequacy to support a fee application, but has noted that reimbursement of fees and expenses is made in lieu of the Equal Access to Justice Act (EAJA), the Financial Management Service (FMS) will use EAJA as a guideline for determining the adequacy of applications for reimbursement under this legislation. Generally, applicants should submit an affidavit establishing (1) the attorney's hourly fee rate and how it was determined; and (2) include an itemized statement containing the amount of time spent working on specific tasks and (3) and itemized list of other expenses or costs.

The basic policy of FOIA is one of disclosure. Accordingly, FMS will assume that any information submitted as part of an application for fees and expenses is subject to disclosure. However, FMS will consider an applicant's request that certain material not be disclosed.

The Western Watersheds Project, a self-described “non-profit conservation group,” is but one example of those organizations engaged in what, at first blush, appear to be valid “environmental” concerns. The WWP and a bevy of like-mined partners -- “ … the Oregon Natural Desert Association in Oregon, Forest Guardians in New Mexico, the Center for Biological Diversity in Arizona, the American Lands Alliance in Washington, D.C.; and the Larch Company in Ashland, Oregon” -- operates what seems to be a selfless campaign for good. “With these groups WWP co-founded the National Public Lands Grazing Campaign that supports federal legislation for a generous and voluntary federal grazing permit buyout program to compensate ranchers and restore public lands. Congressman Raul Grijalva of Arizona sponsors that legislation. WWP’s long-term partner in our efforts to bring the Bureau of Land Management and the Forest Service into compliance with national environmental laws is the non-profit environmental law firm Advocates For The West in Boise, Idaho.”

The WWP makes statements like: "Through vigorous litigation under the Endangered Species Act, Clean Water Act and Federal Land Policy Management Act, WWP has successfully challenged public-lands grazing practices that threaten watersheds and endangered species such as salmon, steelhead and bull trout."

In the past decade alone, WWP has received, through Equal Access to Justice Act provisions, just short of one million dollars. Source: Budd-Falen Law Offices, LLC, Cheyenne, Wyoming.

The commissioners of Owyhee County, Idaho, bravely stood up and questioned U.S. Fish and Wildlife Service in 2004. After more than a year, their reply seemed to put to rest any need to list the sage grouse or protect its habitat from grazing:

"Mr. Hal Tolmie, Chairman of the Board, Owyhee County Board of Commissioners, P.O. Box 128, Murphy, Idaho 83650-0128. Dear Chairman Tolmie: On June 21, 2004, the Owyhee County Board of Commissioners filed a request for correction of information (RFC) [emphasis added] under Section 5 15 of Public Law 106-554, commonly referred to as the Information Quality Act (IQA), with our Wyoming Ecological Services Field Office in regards to a U.S. Fish and Wildlife Service (Service) 90-day Finding for Petitions to list the greater sage grouse as threatened or endangered under the Endangered Species Act (ESA), published April 21, 2003 (69 FR, No. 77). In that notice, we announced that there was substantial information available to initiate a status review of the species and asked the public to submit any pertinent information concerning the status of or threats to this species. On December 2, 2004, you were notified that the Service needed additional time to respond to your request. Subsequently, the service published a final rule in the Federal Register (70 FR 2279), that the petitioned action to list the greater sage-grouse was not warranted, that the species is not in danger of extinction, nor is it likely to become endangered in the foreseeable future. [Emphasis added] The data quality issues you raised in your IQA resulted in additional review and we believe our response addressed them affirmatively. We believe the issues you raised were addressed in the final rule, and unless you feel that they were not adequately addressed, we will not be providing a separate response.” Sincerely, Thomas O. Melius, Assistant Director, External Affairs" – July 18, 2005, [U.S. Fish & Wildlife] Service response on letterhead with Washington, D.C., address. (1 page; 86.66 KB)

Oftentimes, litigious parties seem more interested in what amounts to the “litigate free” sections of the Equal Access to Justice Act than the actual stated purpose of the lawsuits. If it were as costly for the plaintiffs as it was for the defendants in these cases, most such arbitrary and capricious litigation would come to an abrupt halt. Change in or repeal of this act would bring much-needed relief to American taxpayers without harm to any species.

After reading Part One of this article series, Ohioan G.L. Kronk observed of ranchers: “They have the common sense to rotate their crop, because cattle are a crop.” This is a powerful comment, coming from someone who neither farms nor ranches. The public, every member of which is a consumer, needs to see itself as the direct and active beneficiary of the responsible utilization of natural resources. An educated consumer does not advocate locking up natural resources, but supports production of resources for the mutual benefit of people, animals that are grown for human consumption and those that benefit from the presence of people. “The environment,” deprived of human touch, stewardship and ingenuity, loses its vibrancy, its ability to benefit others and its “reason for being.”

Part Three unites positive change, public action and ranchers.


Article citation: "First published in the October/November 2009 issue of Progressive Rancher Magazine."

Sunday, August 16, 2009

Generational harmony, eternal gift

Generational harmony, eternal gift

August 16, 2009

By Julie Kay Smithson

April swirls about me as the hill falls beneath my feet toward the creek. In some places the ground is still cold; in others, it is being warmed by a tender spring sun. Trees are transitioning from bud to leaf; winter-dormant grass is flirting with gamut of green. A young blue heeler cattle dog frolics, still busy learning from my actions whether he should join the herd or observe from a polite distance. He chooses to observe. Good dog! Greatness dipped from the gene pool has been provided to me in spades. If only I can always remain cognizant of that.

Muzzles dripping from their morning thirst-quencher, a clot of horses watches my approach. They've come down from the barn, tummies full of third cutting alfalfa. Ears up, gentle souls survey this person they know well. No flies have come yet to make them stomp or swish. Morning eases into day as the night before retreats.

No grain required

One young lady is first to nicker hello, closely followed by her father's more throaty welcome. The bay filly and her father look so alike -- their color only a tiny part of the equation. They share so much more. Strong bones and hooves, short backs, tulip-shaped ears, black-tipped, well laid back shoulders, musculature built upon generational DNA, minds ever-learning and curious, eager to please, full of playfulness but with no dearth of heart.

A favorite game involves me morphing into a sort of two-legged cutting horse. The first to be worked with has already sensed that he's "it," and he is filled with excited delight, knowing that we're going to do things this morning that will stretch our minds and our muscles. He fairly dances with joy, blowing rollers and tossing that black flag of a tail o'er his back, his hooves cadenced in the poetry of motion, whisking air neath them as they carry him to me. We're close enough to blow our own breath into one another's nostrils ... then he does a perfect rollback and canters up the hill, saying clearly, "Catch me if you can!" I know full well how effortless this is, because he will soon put his nose through a halter, eager to be the chosen one this day. In the interim, I ignore him, smiling as my herd cavorts 'round me, darting this way and that, feigning a charge, only to stretch out my hand to meet an outstretched prehensile equine lip. A touch, then we both whirl and "flee." A fleabitten grey mare with the "bloody shoulder" roan patch, the bottom of the pecking order, has patiently waited for "her turn." Now she accompanies me up the hill, my hand in her mane so she can help me up the steeper part. The others wait "up top," watching us proceed with eyes of utmost fondness. No grain is required to "catch" any of my horses.

We work a bit. He takes the first bit he's ever known into his mouth, tastes it and considers the possibilities. It's a rubber bit, large rings on either side and snaps attach it to his halter. Like many others before him, all training is done with respect, gentleness, praise, and firmness. When this colt moves on in life to another person -- often another family, complete with children he will carry, as he will carry their parents -- he will do so with confidence, knowing that bits, like saddles, are a part of sharing life with people. He will bugle a "Hello!" to people and will come running to meet them.

The fuzzy brown rectangle

Often I have dreamt of how my horses view the world and this puny human that they trust for their health and very lives. They must trust that I will provide them with clean, fresh water -- cool in summer and not frozen in winter. They must trust that I will keep their pastures and hay of the best possible quality, that I will keep them vaccinated against disease and wormed against parasites. They trust me to keep their strong hooves rasped and smoothed at the correct angle to maximize their ability to defy gravity and leave nothing but my gasp of wonder at their fleetness of foot. They trust. I, in turn, strive to be trustworthy.

Through the chocolate-colored rectangular window of their eye, fringed with lashes that have to shelter against sun, wind, and more, they look upon this world. May they always see people as kind, protective, yet also with the call to adventure that may be found when sitting upon their back, our eyes focused between their ears.

Our dogs share their wisdom through their joy, patience, work ethic, and loyalty. Wiggles grants me his life that I may better learn to live my own. He asks only for kind words, a gentle hand, food and water and a place to sleep that is within reach of his "mom."

The present embraces the past

Horses that are now gone back to the earth, hold our hearts hostage. Our favorite dogs do the same. Through our memories, they leave hoof and footprints on our souls and mold the people we have become. They gift us with the knowledge that wisdom is eternal, and all we need do to know this is to look deeply into their eyes, their souls. A glimpse of this eternity may be found there. What we do with these gifts is our thank you to them for having graced our lives, no matter how many days/weeks/months/years. We choke back a sob as we recall the most special times with them. This is our private paradise, out of which we cannot be driven. We pray that we will be reunited with them, to know them without aging or infirmities or earthly bonds.

My babies. With quiet humility to be so blessed with this time in my life, I walk amongst these wondrous horses, at an utter loss to describe their greatness, a lump rising in my throat as I consider the horses and people of a faraway desert on the other side of a distant ocean.

In that far-off place, an olive-complected man appraises his wealth with a loving eye as one drinks deeply at a rare oasis. His mare carries an old spear scar on her hip, but has never limped. She has carried him for many years, and still he draws a ragged breath, thinking of her courage and strength. So like her granddam is this one, her tenth foal suckling her milk as she sips water. Her lips sound like they are pulling air and water through her teeth, and so they are, as she sifts sand from water. Her eyes close in pleasure at his touch, her trust in him complete to the point where he can handle her foals with never a worry. He is a king, a sheikh, his wealth born from oil; yet ... his dearest treasure is an Arabian mare.

Harmony through the generations: Man and horse and dog. God spoke to the south wind, His breath creating the horse. We, who love horses and dogs for their beauty, functionality, grace, speed, kindness, and more -- thank God for this gift.

1,204 words.


Julie Kay Smithson was blessed to have wondrous horses for 34 of her 57 years. Wiggles blue heeler remains still her companion, though the horses were dispersed in order to help her keep her home in the country. She has become a decent property rights researcher and champion of responsible resource providing. She is certain that Heaven holds horses and dogs, for how could God not love these manifestations of His Greatness?

Thursday, August 13, 2009

Get the Picture?

Get the Picture?

Who stands to gain when orchards of fruit and nut trees, vineyards groaning 'neath the weight of plumping grapes and fields ripening with summer crops, are all rendered EXTINCT due to water shutoff?

August 14, 2009

By Julie Kay Smithson, researcher and consumer

Remember when you were a kid in school and were shown a picture and asked to pick out what didn't belong in the picture? It might have been a picture of a house, with a yard, porch, driveway, kids, and ... a giraffe sticking its head up from the back yard.

That was easy.

Here's another picture: spotted owls, tiger salamanders, Preble's Meadow jumping mice, Canadian gray wolves, Indiana bats, black-footed ferrets, polar bears, delta smelt, sage grouse, and ... the Endangered Species Act.

Not so easy, you say?

Once the truth emerges, it's actually even easier to decipher than the first picture. The answer is: the Endangered Species Act. It doesn't belong in the second picture because, truth be told, none of the species mentioned are in actual danger of "extinction." Entire communities of people -- including the Inuit of the Arctic -- are shoved toward actual extinction with this ruse.

Come ON, you say! The polar bear, surely! Didn't "they" prove the icecaps are disappearing?

What about the spotted owl? Wasn't logging to blame for "loss of critical habitat"?

Consider this axiom: When the emotions are twanged, the intellect is paralyzed. Many people -- otherwise intelligent and rational -- can be deceived if the ploy is delivered in such as way that it appears plausible.

What if the truth was that the polar bear was actually thriving in virtually all of its "historic range" and that icecaps, overall, were not disappearing worldwide?

What if the real threat to the spotted owl turned out to be the larger barred owl, which views spotted owls as menu items?

What if ... things were not as most people have believed?

What it means

Disinformation - False information deliberately and often covertly spread (as by the planting of rumors) in order to influence public opinion or obscure the truth. - Definition from the Merriam-Webster Online Dictionary, May 2009. Function: noun. Date: 1939.

Should people remain in a constant state of "Chicken Little / sky is falling" over whichever "poster species" has been trotted out for effect in order to exterminate responsible resource utilization in America?

What if loggers were never a threat to owls?

What if farmers, irrigators and ranchers were never a threat to smelt, salamanders and sage grouse?

What if beachgoers were never a threat to piping plovers?

What if the black-footed ferret had actually been imported from Russia and was not even a native species?

What if the "Preble's Meadow jumping mouse" was not even a distinct species, but merely an emotion-plucking name given to mice that are anything but endangered?

Who stands to gain when orchards of fruit and nut trees, vineyards groaning 'neath the weight of plumping grapes and fields ripening with summer crops, are all rendered EXTINCT due to water shutoff?

Consider the possibilities. Some call it 'conspiracy theory' when thoughtful people voice the probability that America's natural resources are being shut down in order to maintain them as collateral for bankers holding loans on our tanking economy.

Others wonder how litigious "environmental" and "conservation" organization groups seem to have figured out how to milk the apparent cash cow of the "Equal Access to Justice Act" in order to litigate endlessly. Certainly, many of "experts" in Washington, D.C., and other political hotbeds, may not be as "expert" as they'd have us believe. When cattle are plastered in the public consciousness as being somehow dangerous to our rangelands, how are they different from any other grazing animal? Is their domestic status somehow grounds for blacklisting them from eating and being raised / harvested for food? How is the raising of cattle in Brazil, Argentina, etc., less "harmful" to "the environment" than raising cattle in America and saving all that "fossil fuel" shipping food from thousands of miles to "nurture" our health? Locally grown food has been proven healthier for people, yet America's health is being drained in the form of her ability to be "food and fiber self-sufficient."

Will the salmon/suckerfish/smelt actually go extinct unless farming/irrigation/ranching go extinct?


The "Endangered Species Act" appears to be the playbook for restricting/forbidding "activities" that have the "potential" to "adversely" impact any poster species. Substitute any "endangered," "threatened" or "candidate" species, change the location, and repeat as needed until there are no activities left that could be construed as AEI -- American Economic Independence.

Wherever we turn, we are expected to believe that, if we just use a little less, a little more less, and even more less -- Nirvana awaits. The truth is, no matter how little water farmers/irrigators use, it will always be "too much."

The truth is, no matter how few trees are grown and harvested in America, using the most efficient methods, it will always be "too many." "Old-growth" differs by tree species, and no trees live forever. Pines have shorter lifespans than redwoods. Oaks live longer than poplars. Once past their prime, decay and weather damage erode trees. Litigating forest harvest to a grinding halt is not "good for trees." It is good for someone wanting the public to believe that song and dance, but it is not "good" for trees, animals, birds, people, and the local and national economy. Perhaps the smoke inhalation factor benefits the "health care industry," but that is a left-handed "benefit."

"All compromise is based on give and take, but there can be no give and take on fundamentals. Any compromise on mere fundamentals is a surrender, for it is all give and no take." - Mohandas Ghandi

Compromise, collaboration, cooperation -- result in eventual capitulation. Man is not the bane of Earth's existence. People are often very good for the earth. It's time they relearned that fact and stopped being reactionaries to "the Great Oz." Getting the picture is easy once the curtain is pulled back and the fellow with the megaphone is exposed!

976 words.

Providing carefully researched information since 1999. Websites: and

Wednesday, August 12, 2009



June 13, 2009

By Julie Kay Smithson

If this question were posed to most Americans today: Would you embrace the concept of losing your property rights and entire region's economy? The answer would be a resounding "No!"

Worded differently -- say, in the form of "protecting" and/or "restoring" a posted "endangered" or "threatened" species of flora or fauna (whether or not any actual proof exists that said poster species is in any danger of harm to its numbers) -- twenty-first century Americans seem unable to register any red flags to themselves.

The "Endangered Species Act," touted as being the best thing since sliced bread for "saving," "protecting" and/or "restoring" things, has actually done very little. It has, however, wreaked utter havoc on America's former economic independence. Were people to take a long, hard look at the things over the past thirty years that have reduced this nation to paper tiger "status" and massive dependence on other countries for its food and fiber, its energy sources and now even its "tech support" and call centers -- they might rethink their view of such legislation.

Is canned salmon still available on the shelves of your local grocery store for a reasonable price?

Those in charge of "policy" are only too happy to make a far larger profit on their investment in distant lands where "human resources," like natural resources, are shamelessly exploited without the checks and balances and better working conditions and benefits once enjoyed in America. The thought of a "middle" class of people that actually dare to believe they should own property and know life without abject poverty, is apparently abhorrent to those who are busy collateralizing our every resource in order to skim the power and make our middle, property-owning class go extinct. Since the last quarter of the eighteenth century, America has been the place people could go to become free, own property and be independent. Should our steps forward be negated without a whimper as the Albert Gores of the world seek to make us -- but never themselves -- little more than serfs and peasants in service to their masters?

I ask people to unpack and stop taking those wholesale guilt trips they've been conditioned to take at the drop of a hat. Consider that what's actually happening is the undermining of our economic health and independence, while food and fiber is produced in countries with far less stringent growing conditions and regulations than ours. Would Americans ever knowingly produce pet or human food "salted" with deadly melamine? Why shouldn't we raise our own food, grow our own trees -- to be harvested, because they are, after all, a renewable resource -- and utilize our own manpower once again? We owe it to future generations to unpack!

Julie Kay Smithson is a property rights researcher in rural west-central Ohio.
Please visit a place to learn about your property rights and how to protect them.

If Wolves Had Coattails

If Wolves Had Coattails

May 7, 2007

By Julie Kay Smithson

Focus should be redirected from wolves to those behind their 're' introduction and that of other large predators. Such Endangered Species Act (ESA) abuse provides sublime job security. Consider that the real predators may be walking on two legs and "interpreting" the Endangered Species Act for their own benefit and not that of the actual species.

Keeping factions like ranchers, sportsmen and miseducated folk at one another's throats, merely enhances the smokescreen.

Large predators -- and other species of flora and fauna -- have no say in such matters. They are manipulated and volunteered to be de facto real estate agents for The Wildlands Project (TWP). They become "poster species" for the driving forces bent upon gaining control over property.

TWP is not about "rewilding," but rather controlling all resources and wiping out property rights.

If a wolf could tell us, it would not choose to be trapped, moved to a warmer / different climate, bred in captivity, radio-collared, poked, prodded, and turned loose in places where the wolf density is already so high that there's simply not enough food to go around and lots of infighting between the now-crowded large predator population.

Think of an inner city with two gangs. Suddenly, someone drops off ten more gangs in an area where the turf is already claimed. All Hell is SURE to break loose!

If wolves had coattails, the number of two-legged "human" predators riding on them would be amazing. Closer scrutiny will peel the onion's layers.

The Many Facets of the Endangered Species Act

The Many Facets of the Endangered Species Act

Updated version published September 6, 2005 (Original version published May 2002)

By Julie Kay Smithson .htm

While we are familiar with the enforcement of the ESA in America, the Act and its enforcement have expanded to include species found anywhere on the planet. By specific exclusion as a species, human populations have become victims of the ESA.

Treaties, International Agreements and the Origins of the ESA

Congress passed the Endangered Species Preservation Act (ESPA) in 1966. This law allowed listing of only native animal species as endangered, and provided limited means for the protection of species so listed. The Departments of Interior, Agriculture, and Defense were to seek to protect listed species, and insofar as consistent with their primary purposes, preserve (protect) the habitats of such species. Land acquisition for protection of endangered species was also authorized.

The Endangered Species Conservation Act of 1969 (ESCA) was passed to provide additional protection to species in danger of "worldwide extinction." Import of such species was prohibited, as was their subsequent sale within the U.S. This Act called for an international ministerial meeting to adopt a convention on the conservation of endangered species.

A 1973 United Nations conference in Washington D.C. led to the signing of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which restricted international commerce in plant and animal species believed to be actually or potentially harmed by trade.

The Endangered Species Act of 1973 (ESA) signed by the United States on March 3, 1973, which combined and considerably strengthened the provisions of its predecessors.

The ESA is arguably one of the most recognized acronyms in rural America. First written in 1973 using its current title, it has undergone numerous revisions. This "law of the land" contains more facets than the Hope Diamond and may have its purported curse as well. Mere mention of a landowner having "possible habitat" for a protected, threatened, or endangered species wreaks immediate havoc, both emotionally and economically.

The ESA was amended in 1976-1982, 1984 and 1988, and actually expired in the early 1990s, but has been kept alive through Congressional funding on an annual basis.

The United States' international commitment of America's resources under treaties and "other international agreements" has its roots in 16 U.S.C. 1351. An Executive "international agreement" is not ratified by the Senate.

The ESA began with the Migratory Bird Treaty Act of 1918* between the United States, Great Britain and Canada. This treaty usurped powers reserved to the States. The Migratory Bird Treaty has even been expanded several times.

Some treaties, such as the Western Hemisphere Treaty (Treaty of Tordesillas), have no enforcement clause and are merely good faith treaties that impose no obligation or burden upon anyone.

U.S. v. Pink 315 US 203 (1942), which used treaties to undermine constitutional safeguards, should raise significant, related issues.

If international matters are raised and held to, the matter of which treaty or International Agreement is being applied, comes into play. Legal arguments can and should arise from the implementation and enforcement of the ESA against private property owners.

The Ute Mountain Ute Nation did an excellent job of challenging and defeating the ESA. The Ute Mountain Ute Nation did not sign any of treaties or international agreements -- thus, the ESA does not apply to their lands in the southwest quarter of Colorado.

Many definitions contained in the ESA come directly from UN and IUCN (International Union for the Conservation of Nature) glossaries, including but not limited to CITES definitions.

A few definitions from the ESA are necessary in order to understand the complexities of the Act itself:

The ESA definition of an endangered species is "Any species which is in danger of extinction within the foreseeable future throughout all or a significant portion of its range."

The terms ''conserve'', ''conserving'', and ''conservation'' mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

The term ''critical habitat'' for a threatened or endangered species means -

(i) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, on which are found those physical or biological features

(I) Essential to the conservation of the species and

(II) Which may require special management considerations or protection; and

(ii) Specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species.

A "threatened" classification is provided to those animals and plants likely to become endangered within the foreseeable future throughout all or a significant portion of their ranges [Section 3].

A "species" includes any species or subspecies of fish, wildlife, or plant; any variety of plant; and any distinct population segment of any vertebrate species that interbreeds when mature. Excluded is any species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of the Act would present an overwhelming and overriding risk to man [Section 3].

The term ''fish or wildlife'' means any member of the animal kingdom, including without limitation any mammal, fish, bird (including any migratory, nonmigratory, or endangered bird for which protection is also afforded by treaty or other international agreement), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof. ["any mammal" could this be expanded to include humans?]

The term ''take'' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. [This definition is especially meaningful from the context of those human species who have been "harassed, harmed, pursued, wounded, etc." by the implementation of the ESA.]

While we are familiar with the enforcement of the ESA in America, the Act and its enforcement have expanded to include species found anywhere on the planet. By specific exclusion as a species, human populations have become victims of the ESA.

The full 49-page text of the Act may be found at

* - 9%20%20AND


The listing process was originally planned to protect both species and their habitat. U.S. and foreign species lists were combined, with uniform provisions applied to both (Section 4).

Categories of "endangered" and "threatened" were defined (Section 3).

Broad taking prohibitions were applied to all endangered animal species, which could apply to threatened animals by special regulation [Section 9].

Authority was provided to acquire land for listed animals and for plants listed under CITES [Section 5]; and U.S. implementation of CITES was provided [Section 8].

All Federal agencies were required to undertake programs for the conservation of endangered and threatened species, and were prohibited from authorizing, funding, or carrying out any action that would jeopardize a listed species or destroy or modify its "critical habitat" [Section 7].

Significant amendments were enacted in 1978, 1982, and 1988 although the overall framework of the 1973 Act remained basically unchanged.

As with most other Federal regulations, a species is proposed for addition to the lists (50 CFR Part 17) in the Federal Register. The public is offered an opportunity to comment, and the rule is finalized (or withdrawn). Species are selected by the United States Fish & Wildlife Service (FWS) for proposed rules from a list of 'candidates.'

To become a candidate, FWS relies largely upon petitions, FWS and other agencies' surveys, and other substantiated reports on field studies.

The Act provides very specific procedures on how species are to be placed on the list (e.g., listing criteria, public comment periods, hearings, notifications, time limit for final action) and may be found at 50 CFR Part 424. Selection from the list of candidates for a proposed rule is based upon a priority system (September 23, 1983, Federal Register).

Species may be active candidates from a number of sources. FWS has its own biologists who are monitoring the status of some species. Other agencies [The Nature Conservancy, The Center for Biological Diversity -- formerly known as the Southwest Center for Biological Diversity -- and others] have similar staffs that can report when a species seems to be at some risk to its continued existence. Informal letters and various reports are also submitted to FWS from the States and private groups and individuals. There is also a formal petition process available under the Act.

Anyone can petition to have any species -- as defined in the ESA -- listed.

In the years since its inception, this process has expanded to include "possible habitat?" and has often used the "critical habitat" designation to halt human use of large blocks of land. In a 1998 memo, Donna Darm, the acting regional administrator of the National Marine Fisheries Service (NMFS / NOAA agency) wrote: "When we make critical habitat designations, we just designate everything as critical without analysis of how much habitat a (population) needs, what areas might be key, etc. We just say we need it all."

"This has been our assumption of their attitude all along," said Chuck Garner, manager of the Kennewick Irrigation District in the mid-Columbia Basin of Washington State. He gave district directors copies of the comments at a board meeting. "They just go in without showing any scientific evidence of what habitat is critical; they just list everything," Garner said.

Some species have been "emergency listed" in order to stop road improvements. For example, the bull trout near South Canyon Road at Jarbidge, Nevada, was the "sacrificial lamb" used to close the only road for miles in a remote part of northeast Nevada. The bull trout was "emergency listed" for this reason alone: to close a road. Concerned citizens reopened the road on the fourth of July in 2000 in the face of threats of lawsuits and jail time.

Plant species are the special province of the Smithsonian Institution, as directed by the Secretary of Agriculture. The Smithsonian is to review plant species that are or may become threatened or endangered, and recommend methods adequate to conserve the species.


Much of what has given the ESA its "black eye" with those impacted by it is the methodology involved.

Federal environmental policy surrounding this law is often seen to pit one species against others, or speciesism.

Lake Koocanusa is in northwestern Montana and straddles the American-Canadian border. A manmade lake built in the 1970s by the Army Corps of Engineers, Koocanusa was promoted to increase fishing and tourism. A "protected species" of salmon listed in 1992 has put another protected species, the White Sturgeon, at risk.

The United States Fish & Wildlife Service working with the National Marine Fisheries Service, is conducting a "50-year experiment," using the lake levels to discover if decreased lake levels in the spring will help the salmon in the Columbia River, 800 miles downstream. This effectively puts the spawning grounds of the sturgeon in eminent danger by reducing lake levels at a time when the sturgeon most needs higher levels. This is a prime, but far from isolated, example of the Endangered Species Act violating the Endangered Species Act.

In other highly publicized stories, lynx fur and grizzly bear hair have been used to falsify the boundaries of "critical habitat" for both species, leading to the question: How many other "science-based statistics" have been invented in order to "create" critical habitat?

The Endangered Species Act has been selectively used to protect species other than human and domestic. Many rural producers are descendants of war veterans who settled and improved their lands after government promises of land and water. Indeed, many veterans had deeds -- signed by various U.S. presidents -- granting them and their "heirs and assigns" land and water rights in perpetuity.

As prospects for rural economic survival dwindle, a federal government or environmental group buyout is touted as the only alternative. Resource providing and resource extraction -- farming, ranching, logging, mining, and commercial fishing -- are presented to the general public as hurtful "to the environment" and obsolete careers. Tourism and recreation are promoted as being better for all concerned.

Left out of the equation are the facts: people, like any other species, need food and shelter for survival. In order to have both, resource providing and extraction must continue. Sending both to other countries does not bode well for their economies or their environment.

Think there's no such thing as RURAL/CULTURAL terrorism?

A 2000 ESA hearing, sponsored by the Senate Committee on Environment and Public Works, actively excluded testimony from landowners that have seen their property values reduced or completely negated by regulations.

Victim stories are legend. Thousands -- perhaps tens of thousands of families and businesses -- have been forced to relocate and/or go out of business due to this single statute. Here are but a few:

*Dave Fisher, third generation cattle rancher and owner of the Shield "F" Ranch near Barstow, California

Dave Fisher has become both the endangered species and the victim. His story is the tip of the iceberg, as there are 1,400 ranch families who fell victim to the ESA along with him.

In late 2001 the Bureau of Land Management (BLM) sent Dave a notice that if his 307 head of cattle were not removed from the 154,848-acre Ord Mountain allotment in the California Desert within 5 days, they would be impounded by the BLM. The BLM declared its lands and those under private ownership in the affected area to be "critical habitat" for the desert tortoise. It did not notify the 1,400 affected families in the area of its intent until after the ink was dry.

Dave and his neighbors tried to cooperate with the BLM. They appealed the original BLM May 15, 2001 decision to the Office of Hearings and Appeals (OHA) and won. That original decision was remanded back to the BLM because it had failed to consult, cooperate and coordinate (CCC) with the permittees as required by Section 8 of the Public Rangelands Improvement Act and as required by the BLM's own regulations.

Dozens of appeals were filed, protesting the BLM's September 7, 2001, decision.

The BLM did not respond to even one of those appeals.

The desert tortoise "protections" arose from a negotiated California Desert Conservation Area (CDCA) lawsuit settlement between the BLM, The Center for Biological Diversity (CBD), Public Employees for Environmental Responsibility (PEER) and the Sierra Club. This agreement empowered the BLM to partially implement the U.S. Fish & Wildlife Service's 1994 Desert Tortoise Recovery Plan recommendations for livestock reduction and removal from critical habitat. Proven help for the desert tortoise from cattle droppings (providing moisture and shade) were not factors included in this decision. Dave suggested to the California state BLM director that the director exchange Fisher's ranch for another ranch. That offered solution was never acted upon.

Ironically, it was rancher stewardship of the land that attracted the desert tortoise in the first place.

Not until the Fisher family drilled water wells on its own land did the desert tortoise became prevalent in the California Desert Conservation Area. The tortoise, in moving into a new habitat provided by ranchers grazing cattle, attracted the attention of the environmental groups. It was used it to pressure federal officials to push Fisher and his 1,400 ranching neighbors off the land.

This is an example of ranchers who stayed within the system, cooperated fully with all agencies involved and still -- without court order or decision -- became its victims. Threats of lawsuits against the Department of Interior (DOI) by three powerful environmental groups seem to have provided the directives for DOI/BLM actions.

*Anita Cragg, Florida builder

In 1992, Anita Cragg, president of Space Coast Management Services, bought a housing subdivision in Country Cove, Florida with the goal of building new homes next to existing ones. She had the necessary building permits and interested buyers lined up when FWS ordered her to stop all development because it allegedly posed a hazard to the Florida scrub-jay, a bird which is listed as threatened under the Endangered Species Act.

What Cragg didn't understand was how her planned development threatened the scrub jay when there were no scrub-jay nests on the property.

Both the FWS and an independent environmental engineer hired by Cragg could not find any nests on her land.

However, when FWS officials were surveying her land in 1993, they saw two scrub jays fly onto her lots. Because Cragg's property had the potential to be suitable scrub-jay habitat, the agency suspended construction for 18 months.

To get construction resumed, FWS forced Cragg to purchase four acres of land off-site to compensate for the loss of every acre of potential habitat on her property. That cost her $100,000. Cragg says her deal with the government "didn't really help the scrub-jay because we weren't hurting it in the first place."

*A Sovereign Nation's border

The U.S. Border Patrol's aggressive efforts to stem illegal immigration and cut crime along the Texas-Mexican border have been a resounding success. In just two years, Operation Rio Grande, the agency's high-tech interdiction effort, cut the number of illegal aliens attempting to cross the border from 216,000 in 1996 to less than 160,000 in 1999 along a 200-mile stretch of the Rio Grande River. If it weren't for the operation, Border Patrol officials estimate that there would have been 350,000 illegal aliens attempting to cross the border in 1999. In addition, in just one year, crime in Brownsville dropped 45 percent.

If "environmentalists" have their way, all these gains will be negated.

The Sierra Club, Defenders of Wildlife and the Audubon Society plan to file a lawsuit to put a halt to the Border Patrol's use of critical interdiction technology, which the groups claim pose a "threat" to "endangered species." These groups argue that the agency's use of high-powered lights, which prevent border crossings under the cover of night, also disrupts the habits of the ocelot and jaguarondi, two nocturnal-oriented wildcats on the endangered species list.

"We feel the Immigration and Naturalization Service can accomplish its job without the floodlight and fences and with far less intrusive technologies that have no impact on wildlife," says Jim Chapman of the Sierra Club.

Not so, Border Patrol. Border Patrol assistant chief Rey Garza says. "Taking away the lights will negate everything."

The Rio Grande River is pitch-black, making it an obvious haven for illegal aliens and drug criminals. Garza says that Border Patrol officers have been stabbed and shot trying to do their job on its murky banks.

By installing permanent and mobile light fixtures along targeted sections of the river, the Border Patrol's ability to catch criminals and illegal aliens has increased dramatically. Says officer Garza, "The lights have proven to be a powerful deterrent."

The environmentalists' planned lawsuit especially frustrates Border Patrol officials. They had already agreed to not place their high-tech equipment in U.S. Fish and Wildlife sanctuaries in an attempt to address environmental concerns -- even though those sanctuaries have become refuges for illegal aliens.

*Jay Monfort, New York businessman with 300-year family history

Jay Monfort of Fishkill, New York, began the permitting process in 1990 of trying to expand a gravel mine on his own land. Jay owns a company that manufactures concrete block. He also owns property that could largely supply the gravel needed for his business. Fishkill, New York judged Jay to be in compliance with its zoning regulations and approved the expansion of his Sour Mountain gravel company.

After filing his permit application with the state Department of Environmental Conservation (DEC) Jay became ensnared in a process that continues today. His Draft Environmental Impact Statement (EIS) was rejected as "incomplete" in April 1993, almost six months after the state was required by law to issue its opinion. After resubmitting his EIS, the DEC finally approved it in 1995.

Then the DEC, in collusion with local environmental groups, devised new and costly reasons to further delay the project. At what should have been the end of the process, Jay was told that he would have to start over again because a den of rattlesnakes had been "discovered" on an adjoining property owned by -- surprise! -- a conservation group. The protected species of snakes were not even on Mr. Monfort's property, and his previous EISs had already addressed potential impacts on the snakes by his mine.

The DEC informed Jay that he would have to spend several additional years studying the snakes before a decision could be rendered on his proposed mine expansion.

Monfort declares, "The motivation for such abusive tactics appears to be a desire of the state" and the local conservation group, Scenic Hudson, to acquire his property for a land trust.

Jay has not given up. In January 1998 he filed a lawsuit demanding that the state issue a final decision based on his original permit application. The permit process alone has cost him more than $3 million.

A better way to protect wildlife

Federal "management" of both endangered species and other wildlife has led to a delicate balancing act. A major reason for this, according to Howard Hutchinson, executive director for the Coalition of Arizona/New Mexico Counties, is that critical-habitat designations for endangered species are often determined by "citizen" lawsuits rather than being formulated by people who understand the needs of the species. As a result, he says that decisions are made by Justice Department lawyers based on agreements reflecting political purposes.

Hutchinson cites an example. As the result of a much-publicized "citizen" ESA lawsuit filed by some of the same environmental groups involved in the Klamath Basin crisis, protection of the Mexican spotted owl virtually eliminated the timber industry in Arizona and New Mexico several years ago.

Hutchinson, who serves on the spotted-owl recovery team, says the "resulting growth of underbrush in the forests has not only led to this summer's devastating wildfires, but has also had a negative effect on several other species that have been declared endangered." And, says Hutchinson, research has shown that because of the increase in timber density the forests are retaining more water, thus decreasing the amount of water in Southwestern streams by 30 percent. As a result, he says, the Gila trout, Apache trout, spiked ace and loach minnow -- all of which live in the streams and also were subjects of "citizen" ESA lawsuits -- are suffering.

Even more bizarre than this pitting of one species against another, say critics, is the pitting of a species against itself. This is happening in the case of the Coho salmon, one of the allegedly threatened fish that was the subject of several of the lawsuits that forced the government to turn off the irrigation water in the Klamath Basin.

According to the National Marine Fisheries Service (NMFS / NOAA agency) the government agency that administers the ESA for marine and anadromous (fish that migrate from the ocean to freshwater to spawn) species, the salmon being protected in the Klamath River do not constitute a species as properly defined. The NMFS says they are just one of 52 "distinct population segments" -- DPSs -- or " evolutionarily significant units" (ESU) of salmon that are found in Oregon, Washington state, Idaho and California. But one-half of the 52 ESUs are protected under the ESA. The Klamath River fish belong to an ESU called the Southern Oregon/ Northern California Coasts Coho salmon. It was listed as threatened under the ESA in 1997.

So what distinguishes one ESU of salmon from another? A genetic difference? No. A difference in the taste of the fillet on the dining-room table? Not even that. According to a regulation promulgated in 1996 by Bruce Babbitt, Clinton's secretary of the interior, a group of vertebrates qualifies as an ESU if it "is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological or behavioral factors."

According to NMFS spokesman Brian Gorman, geography is the primary distinguishing factor.

Gorman says the hatchery fish were not counted because, although they have been released into rivers for at least 100 years, NMFS biologists recently have concluded that the hatchery fish have different "behaviors" and actually are a threat to the "wild" fish. He claims the hatchery fish "diminish the vigor" of the wild fish and make them easier for fishermen to catch. He also says hatchery salmon reproduce less successfully in the wild than "wild" salmon.

In 1998, Oregon Department of Fish and Wildlife personnel were videotaped using baseball bats to kill thousands of Oregon coastal Coho salmon at a hatchery in the Alsea River basin. "There is a rationale for killing the salmon," says Gorman. "Each hatchery can only handle so many fish, so when the hatchery's capacity is reached, the excess fish must be killed."

A similar parallel could be drawn between bovine excreta and that of wild elk or antelope. The head of the Tucson, Arizona-based Center for Biological Diversity, Kieran Suckling, rages about domestic cattle defecating in streams -- yet patently refuses to acknowledge that all wild animals produce and drop scat on land and in streams.

Wildlife has been existing, mostly in harmony, with private citizens for many years. The partnership has benefited both: deer and many other avian and animal species forage on the edges of land planted in grain. Species that are of different successions -- early, mid and late -- are needed by wildlife in order to flourish. Driving a species such as the American Bison almost to extinction was a profound learning experience. The passenger pigeon's demise was another. The twentieth century found stewardship and land/water use progressing wisely in private hands.

It is certainly possible for most species to have "possible habitat" in many areas where they are not found. That theory holds true for both endangered and healthy populations of humans, flora and fauna. The ability to adapt -- stronger in some species than in others -- has perhaps encouraged diversity more than hindered it, since it dictates progression or extinction.

The continuing educational process that humans are undergoing to better care for and harvest renewable resources -- including timber, sustainable harvest of game birds and animals as well as domestic -- points the way toward a far different scenario than environmental extremists have painted. Freedom of choice made possible by private ownership is a viable alternative to today's ESA restrictions. Truly free enterprise offers healthy, threatened and endangered species ways to partner, which over-regulation and the locking up of millions of acres can never accomplish.

"Envisioning" the future of the ESA

Non-governmental organizations and unelected bureaucrats are using the ESA as a leverage tool to end resource providing in America. This arbitrary and capricious agenda is a self-fulfilling prophecy. If all grazing permits are purchased by such as the Nature Conservancy -- thus ending grazing on all Federally owned lands -- families will feel the loss in their pocketbooks and on their dinner tables. A much larger percentage of disposable income will go for food as prices go up and availability goes down.

With the remainder of arable land and its water resources being placed off-limits to resource production and extraction -- and human habitation -- food and water will soon achieve a place in the American psyche that they have not held for two hundred years. The standard of living that we take for granted will evaporate.

Protection of some species at the expense of others is an artificial scenario, neither practicable nor scientific. Past precedent shows beyond reasonable doubt that the future of the ESA as currently structured and enforced is bleak.


This Act is a property rights destroying monster. It has wreaked havoc throughout America and beyond, and cannot honestly claim even one "success story." What the Endangered Species Act can claim is the demise of thousands of rural communities and billions of taxpayer dollars. It can claim many shattered lives, whether through the stoppage of logging, farming, mining, ranching, or commercial fishing in many areas, or the many recreational pursuits (including hunting and fishing) that have been placed off-limits. It has been the secondary reason for many destroyed families -- through stress, divorce, suicide, ruined health or nerves, and even early death. Rural and urban people alike must put this law where it belongs: in the wastebasket. Not only has the ESA failed species miserably; it has also failed the American people.

As an economic and cultural change agent, it has no parallel.

Landowners who once provided abundant species habitat have been and are being forced off their land in record numbers. One need look no further than the Klamath Basin of Oregon and California for proof. Property values are gutted, families are wrecked, and once-thriving communities are turned into rural ghettos. Species have not recovered anywhere. The ESA has failed to "protect" any species, and has, in fact, been a substantial contributing factor to actually making some species become endangered that once enjoyed healthy populations.

There is currently a move afoot to "reform" and "strengthen" the ESA -- even to the point of codifying "invasive species" by inclusion of language.

Current ESA draft "reform" legislation even dovetails a version of Kelo v. New London, Connecticut, by use of a "50 percent clause" -- more than half of one's property must be removed from use before any compensation is considered or applicable.

How many people are content with losing half their property rights before any property compensation even comes into play?

Far from needing reform or strengthening -- either of which further decimates property rights -- this expired 'piece of work' that has Draconian and unconstitutional roots must be uprooted and finished off, to never again make victims of honest folk.


Julie Kay Smithson lives in rural Ohio. She has become a property rights researcher by default, due to the assault on prime farmland in her part of Ohio by an agency of the Department of Interior, the U.S. Fish & Wildlife Service. Please visit to learn more about property rights, resource providers, consumers, and recapturing freedom.

Thanks to the National Center for Public Policy Research for its Victim Directories, which were of priceless help in the writing of this article.

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