Capitol Reflections: 2020 Session Issue 2
“It is axiomatic that the Fifth Amendment's just compensation provision is "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."
US Supreme Court Chief Justice William Rehnquist - First Lutheran Church v. Los Angeles County, 482 US 304 (1987)
Are Property Rights Protected?
BOISE - Secure property rights are the one thing that made America great, and different from every other nation at the time of its birth. The founders, mindful of this fact, did all they could to guarantee protection within the Constitution to ensure that the government could not erode the foundational principle which would allow our citizens to prosper. If we are to truly make America great again, we must re-enshrine property rights as inalienable, sacred rights that cannot be diminished by anyone.
Most folks believe that in America our property rights are guaranteed by both the U.S. Constitution and the state constitution. These rights were diligently upheld by the courts for more than 100 years. Unfortunately, over the past 100 years, property rights have been consistently eroded by governments and courts to the point that they are a pale shadow of what they once were. Progressive Era courts were notorious for stretching the meaning of the law to the breaking point to find some nuance or loophole within which they could find justification to grant authority for the government to restrict property owner’s legitimate rights.
The good news is that the pendulum is finally swinging back in the right direction. The US Supreme Court has had several cases in recent years which have been more favorable to restoring property rights. President Trump has also been successful in placing more conservative judges on the 9th Circuit and in many other posts around the country. However, taking back rights that have been lost is not an easy task.
What can we do to reclaim and reassert the importance of property rights? One thing is to encourage your legislators to strongly support property rights in every instance, no excuses. We cannot allow rights to be further eroded for any property owners, even in those situations that may not directly affect us now. You may soon find that your operation is the next one to be targeted.
A good example currently is a rule that the Idaho Department of Lands (IDL) enforces, which is lovingly called the shade rule. The shade rule prohibits private landowners from commercially harvesting trees on their private property within 75 feet of either side of a fish-bearing stream. The purported purpose of the rule is to ensure there is adequate shade on the stream to keep the water cool for fish. While no landowner wants to purposefully harm fish, the Constitution requires that compensation be paid to landowners when their property is taken for public use. Despite courts stretching the meaning of the law to the contrary, even a 5th grader can understand that prohibiting a landowner from managing his land as he sees fit is a taking of his property rights.
Farm Bureau has had a policy for many years supporting the Forest Practices Act, except where it infringes upon property rights. Specifically, the policy opposes the shade rule unless landowners are compensated for the loss of ability to harvest trees upon their personal property.
Over the last seven months, Farm Bureau has been working with IDL, the House and Senate Resources Committees, and landowners across the state in an attempt to amend the rule so that it either no longer applies to private landowners, or else provides compensation for the loss of property rights. Unfortunately, IDL has so far rejected our requests. However, recently they have come back to the table assuring Farm Bureau that they will enter into negotiated rulemaking this summer to “simplify the language of the rule” and to provide more flexibility for landowners. While this is a positive development, IDL also rejected requests to implement studies to determine if state water quality standards could continue to be met without requiring the shade rule on private lands. Curiously, IDL would not even entertain that idea.
Based upon Idaho land ownership statistics, there are 21.5 million acres of forestland in Idaho. 86% of this is managed by either the state or federal governments, which would continue to be fully covered by the shade rule. Of the remaining 14%, 1.6 million acres are owned by large, industrial timber companies such as Stimpson and Potlatch. These firms say they will continue to manage their lands the same, even if the shade rule is no longer required on private lands since they can receive an industry certification demonstrating they are a “green” timber company and they can then receive a premium for their timber on the market.
Therefore, only 1.4 million acres or 6.6% of all Idaho forest land is owned by non-industrial (family) owners. When you divide this 6.6% of Idaho forestland by a thirty-year harvest cycle, there would only be 0.22% of Idaho forest land harvested on average in any one year which would not be required to follow the shade rule, if it no longer applied to private lands. Furthermore, willow, alder and other brush would fully shade any segments of a stream where harvest did occur within a year or two post-harvest. This is why we are confident in asserting that Idaho could continue to meet state water quality standards while removing this unconstitutional burden from landowners.
The Senate and House Resources committees will consider this rule in a joint hearing on Monday, January 27. Farm Bureau will be encouraging these committees to reject the specific portion of the rule which requires landowners to provide shade to streams while leaving in place all other portions of the rule which ensure sediment and other pollutants are not negatively affecting water quality. Anyone interested in potentially coming to Boise to speak about this rule, please contact the Farm Bureau office at 208-342-2688.
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Wolf Snare Rule Passes the House Resources Committee
BOISE - On Tuesday, the House Resources and Conservation Committee unanimously approved a change in a rule dealing with wolf snares. Paul Kline, Deputy Director of Programs and Policy at the Idaho Fish and Game presented the rule before the committee, stating that the new change would remove the requirement of wolf snares to include a diverter device. The goal is to make snares more effective and increase wolf trapping success.
The snare diverter is a wire attached to a snare so that it extends out from the top of the snare loop. The purpose is when a non-target species meets the diverter wire it redirects them around the snare to prevent unwanted bycatch. No other state requires the use of diverters. Idaho Farm Bureau worked closely with trapping groups to reform the rule in Idaho to remove the diverter requirement.
While working with the trapping community it was found that the diverters were causing more problems than solutions. It was providing more surface area for snow to weigh the snare down, below the ideal height wanted to trap a wolf. It was also serving as a visual cue for the wolves to notice and go around the snares. Not only was there the issue of it causing difficulties in trapping wolves effectively, but it was also causing more bycatch. It was found that the diverter wire, instead of causing the nontarget species to go around the snare, would encourage the animal to duck its head to avoid the diverter, sending them right into the snare.
The negotiated rulemaking was held over the summer concerning this rule and the department concluded that it would be best to remove the requirement that a wolf snare must have the diverter. Snares still must have either a breakaway device or a loop stop to help with preventing bycatch. The removal from rules now allows trappers to better assess where they are trapping and pick the best device to use in that area. This will hopefully lower the amount of bycatch and increase efficiency in trapping wolves in the state to help with population control.
IFPF Policy 80 supports all methods of year-round wolf control and population management statewide.
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Examining other States' Approach to Legalize Industrial Hemp
BOISE - As attempts are made to legalize industrial hemp in Idaho, it can be informative to examine the approaches to legalization that other states have already taken. A careful policy is important, especially for Idaho, to ensure that our farmers can grow hemp legally without effecting the State’s zero-tolerance policy for that infamous cousin marijuana. As such, we have been examining other states that have legalized industrial hemp that have also not loosened their drug policy to allow marijuana.
As a brief background, it is our understanding that the cleanest and most legally-sound policy to legalize hemp is to remove it from Idaho’s Schedule I drug policy. Unfortunately, this is easier said than done. Since Idaho law does not currently distinguish between hemp and marijuana, a removal from Schedule I must be carefully worded to ensure the maintenance of the zero-tolerance policy while clearly legalizing hemp for our farmers.
In examining other states, it becomes apparent that there are almost as many ways to address this as there are states. One of the possible methods is to exempt substances that contain less than 0.3% THC (the federal definition of hemp) in the Schedule. An alternative method that has been used is to prohibit THC, except when such substances may be found in “hemp and hemp products”, and to then define those terms in the hemp production statute. This is the route Georgia, for example, took to legalize the production of industrial hemp in its state. Another method that has been utilized is to simply list marijuana on the schedule and then define marijuana through either administrative rule, or another section of the statute. This is the approach that Nebraska, Kansas, and Oklahoma have taken.
While these methods all remove hemp from the Schedule through different methods, the important result is that hemp is removed from Schedule I and the distinction is clearly identified. It is clear that whichever way this is accomplished, we must allow the legal production of industrial hemp in Idaho. We are committed to ensuring this is accomplished for our members while respecting our State’s tight drug policy. Please make sure to contact your Representatives, Senators, and the Governor’s office to show your strong support for removing industrial hemp for production and processing from Schedule I.
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2020 Legislative and Commodity Conference
BOSIE - The Idaho Farm Bureau is looking forward to hosting the 2020 Legislative and Commodity Conference on February 11-12 at the Riverside Hotel in Boise, ID. We are continuing to do some things the same such as our Annual Legislative Dinner where members can connect with their legislators, but we are also adding some new activities to the conference.
After lunch on February 11th, we are loading up onto buses and heading to the capitol building. While at the capitol members will hear from House and Senate Leadership, House and Senate Committee Chairman, and attend afternoon committee hearings to learn more about the legislative process. We believe this will be an exciting and beneficial addition to the conference for our members.
During the Legislative dinner members will be able to connect with their legislators and share with them experiences of how proposals affect their operations. This one on one encounter leaves an impact on the legislators and allows having a more personal relationship.
The Commodity Conference is where General Ag becomes specific. Committee members from throughout the state meet to discuss issues and receive education regarding their specific areas of interest and production. Committees of Potato, Wheat & Grains, Forestry, Beef, Dry Beans & Lentils, Dairy, Hay & Forage, and Sugar each meet to review Farm Bureau policy, receive market updates as well as pertinent education about their crops and livestock. All Farm Bureau members are welcome and encouraged to attend and participate in the meetings of the Commodity Committees and to help all receive as much insight and information as possible.
Each committee will have its agenda attached to the Legislative Commodity Conference agenda so that participants can choose which committee they would like to attend. As most of our producers are involved in multiple crop productions it is encouraged to move about the many committees to listen to the speakers and topics that are the most constructive to each individual. The Wednesday lunch will highlight a roundtable discussion of fellow growers discussing their progress, failures, and insights learned from marketing their crops and using Farm Bureau’s RAMP (Risk Analysis Management Program.)
The success of the Idaho Farm Bureau implementing our policy is a direct reflection of member engagement, so we are hoping to increase member involvement with these processes.
The link below will direct you to the registration page for the Legislative and Commodity Conference.
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