California Department of Fish and Game, the Art of the “Take”

November 19, 2010 by Mark Baird, Vice President, Scott Valley Protect Our Water,
Vice President Siskiyou County Water Users Association

Preface: 

California Assemblyman Jim Nielsen, a staunch defender of Property Rights,
hosted a meeting at his Redding headquarters at the request of Water Right
Owners from Siskiyou County.  Water Right Owners were represented by Scott
Valley Protect our Water,   Siskiyou County Water Users Association,  and
two prominent Shasta Valley Ranchers.  The government contingent included
Niel Manji, Northern Region Director of the California Department of Fish
and Game, and additional CDFG officials.  Some individuals present wish
their names be withheld.

 11/19/2010  Meeting between CDFG and Siskiyou County Water Owners

The California Department of Fish and Game, citing the listing of the Coho
Salmon, is attempting to gain control of surface water rights in
California.  The “Watershed Wide Permit Process” is the vehicle for this
attempt to usurp adjudicated water rights.

Mr. Neil Manji, Northern Regional Director, California Department of Fish
and Game, stated that he has been aware of the program since its
inception.  The “Program” was conceptualized in 2001 (four years prior to
the listing of the Coho Salmon). The CDFG claims there was landowner
participation in the initial stages of the program.   Mr. Manji stated, “
initial meetings with landowners in CDFG's Redding office included, Gary
Black (Siskiyou RCD), Don Howell (Siskiyou RCD), Carey Stacy (CDFG  N.
Region Director)”.  The Siskiyou RCD has no legal authority to represent
Water Right Owners in Siskiyou County.  Thomas Pease, a Scott Valley Water
Diverter , addressed landowner participation, with frustration.  He spoke
about the threats that landowners received during informational meetings
as well as threats which were received by mail.

The “Program” was initially intended to protect diverters against
Incidental Take citations.  According to DFG Section 2087a, landowners do
not require this protection.  DFG 2087a provides protection against
accidental take of a listed species during routine and ongoing
agricultural activities (paraphrased).  The CDFG, with help from Cal-Trout
and the Natural Heritage Foundation, has reconstructed the program to
include LSAA and CEQA provisions.  A prominent Shasta Valley Rancher,
formerly of the Shasta RCD said, “We tried to negotiate with Fish and
Game.  No matter what we brought forward to them, the answer was always,
No!”

It was stated that "Private “Projects” with permits dated prior to April 5, 1973 are exempt
from compliance with CEQA (CEQA section 15261).  The vast majority of our
water rights predate CEQA.  CEQA is not retroactive.  The CDFG intends to
force Water Owners into a “Project” because CEQA only applies to
“Projects”.  A “Project” is an activity which requires, public funding
and/or participation with public agencies, (CEQA section 21065).  CEQA
does not apply to individuals, involved in routine and ongoing activities.
The California Department of Fish and Game is well aware of these facts.

DFG Code Section 1600 is the vehicle with which the CDFG intends to coerce
Water Right Owners into a “Project”. The Lake and Stream bed Alteration
Agreement (DFG Code Section 1600) was originally enacted in 1961.  Section
1600, specifically refers to future “Projects” such as  bridge building or
gravel mining.   For the first time in sixty years, “opening a head gate
would be considered a “Project”.  A “Project”, which, if successful,
places The Department of Fish and Game in direct control of Surface Water
Rights in Siskiyou County.

CDFG  manufactured the ”Watershed Wide Permit Process”.   CDFG claims the
“process” is voluntary.  Assemblyman Nielsen said, “Even if you give up
access to the water right, you might as well have given up the water right
itself”.  Assemblyman Nielsen further said, “ I have accumulated a lot of
testimony and this Program does not look voluntary to me”.

Another prominent Shasta Rancher, formerly of the California Cattlemen
Association, said “ Adjudications in the Shasta Valley go back to 1930,
some as far back as 1870.   If we sign, we will be giving up Adjudicated
Water Rights”.  Rights in the Scott Valley date back to 1850s.

The ”Watershed Wide Permit Process” is being imposed only in Siskiyou
County. The “Watershed Wide Permit Process” is illegal and has never been
submitted for APA review.  Water right owners are in full compliance with
the law.  No further permits are required.

One of the Shasta Water Owners, discussed the secret negotiations that
took place between the RCD and CDFG.  These secret negotiations were used
to construct the “Water shed Wide Permit Process”.  The RCD was advised by
Siskiyou County Counsel, not to share details of the negotiations with
diverters.  County Counsel said that sharing with diverters would be like
sharing with the World.   The Shasta Rancher, went further to say that
CDFG was not capable of keeping its word.  He used, as an illustration,
the MOU signed between himself and Gary Stacy, (Mark Stopher's
predecessor). This MOU was promptly rejected by Mr. Stopher, although the
MOU constituted a signed agreement.  This Shasta ranchers opinion is that
the Permit Contract was open ended and vague.   “CDFG would not keep its
promises in any case”.  This gentleman's   Attorney advised him not to
sign the Contract.  He opted to sign only to, “Get the Monkey off my
back”.

I  asked Lt. Larry Harris, CDFG Mt. Shasta Enforcement, if he was familiar with the Penal Code which addresses the threat of prosecution to gain signatures on a contract?  Lt. Harris was also asked if he was familiar with PC 146b which says, “ Every person who,
with intent, to lead another to believe that a request for information is
being made by the State, a county or other governmental agency, when such
is not the case …...is a misdemeanor”.  Lt Harris did not seem familiar
with PC 146b.

Assemblyman Nielsen asked Director Manji whether there was some mechanism
through which the landowner's objections could be examined by the CDFG.
Mr. Manji replied that “the Department would explain why it is doing this,
but would not alter the Program.”  Manji went on to say,  “Its the fourth
quarter and we are at the goal line and the time for negotiation is past.”
“We have a plan, right or wrong”.

I pointed out that this program had never received APA review.

Assemblyman Nielsen expressed dismay that CDFG did not  attempt to receive
APA review.  Assemblyman Nielsen further stated that, “the Program would
possibly constitute an underground regulation”.

Another one of our Shasta Valley ranchers, asked Mr. Manji, if “Fish and
Game was going to pay for the water they were planning on taking”.  Mr.
Manji replied, “I don't know”. Director Manji, was reminded that there was
no money in the water trust to pay for confiscated water.

I reminded Director Manji of the California Constitution and its
prohibition from taking private property with out its value being first
ascertained by jury and the sum paid.  Manji replied, “ Where we are going
is to protect the fish.”  Mr. Manji went on to say,  “when you have a
listed species, the rules change.”  I sincerely doubt the framers of the
Constitution would agree.

David Reade said, “ Fish and Game should return to the time when
cooperation with landowners was the norm. You were cooperating (with
landowners) well into the listing”.

Mr. Manji replied, “Holding off on enforcement is cooperating”.

Additional items discussed, included,  site visits by armed teams of game
wardens to coerce Water Right Owners into signing the contract.  There
were no telephone contacts prior to the visits.  There were no warrants.
There was no probable cause for these visits.  The Officers did not inform
the Water Owners of their option to gain permits outside of the “Program”.
The Officers simply threatened or implied prosecution if the Water Right
Owner failed to sign up for the “Water Shed Wide Permit Program”.  This is
Extortion.  The participation in this Extortion by a sworn peace officer
constitutes a Color of Authority Violation.

Mr. Manji has stated that the CDFG will "take" what water “they feel the
fish need”, without regard for the Constitution of the United States or
the Constitution of California. I said  this is Extortion.  This is a violation of
CEQA.  This is willful negligence by a state official with financial harm
to the Water Right Owners of Siskiyou County.  This is nothing less than
State sponsored confiscation of real property in the form of pre and
post1914 Appropriative, and Adjudicated Water Rights.  One of the Shasta
Ranchers said, “You are taking water, for gain, from one person and giving
it to another”.

My Conclusions:

The Department of Fish and Game has constructed a project.  This project
will continue regardless of, and in spite of, serious legal and moral
violations.  The department  has no regard for the law and no regard for
the Constitutional rights to property.  Mr. Neil Manji, as well as CDFG
enforcement branch, intend to continue to prosecute this project.  CDFG
intends to continue in spite of the Liability it brings upon the
Department, the State, the  taxpayers or to themselves.  Mr. Manji says, “
The fish don't have time to wait for the Constitution.”

Director Manji, after the expenditure of almost 100  million in taxpayers
dollars, cannot define, one, single, positive impact upon the Coho Salmon.
 NOAA Fisheries, has spent 140 million dollars in the Klamath Watershed,
and cannot point out one, single, positive impact to the Coho.  The CDFG
has invented a “Project”, in order to save a species, which they are
clearly, not saving.  Are the citizens of this state, expected to pour
billions of dollars down the dry hole of environmentalism?  When and how
can this insanity be stopped?  Are the citizens of Siskiyou County
expected to look the other way while the CDFG burns the Constitution,
ignores the law, and terrorizes our families?

I am appalled, but not surprised, by this behavior.  It is propagated by
an environment where bureaucrats are left to impose fees and projects,
upon the taxpayers with out regard to the law.   The outside interference
by Environmental groups adds to the problem.

I was  not encouraged by what I heard at this meeting, nor was I
surprised by the attitudes of the California Department of Fish and Game.
We must remember that the citizens of this country are not the playthings
of the government.  We do not surrender our sovereignty to agencies which
are supposed to serve us.   We need not submit to every social and
environmental experiment which is imposed upon us.

We live under the rule of law.   When the rule of law no longer applies to
the government, then, at that very moment, the covenant between government
and the people,  has been broken.  We are free to resort to self help.  We
will take the course of action which preserves our Liberty and our
Property.

Assemblyman Nielsen, I wish to personally thank you and your staff for
your integrity and your willingness to help us to right this wrong.  The
Founders counted on men of high moral character, to protect our country
from attack by well meaning despots.   In you, Sir, Liberty has a friend.
Please, keep up the good work and know that, we the people, will stand
with you, for Liberty and the Constitution, no matter where that road
leads.

Thank You,

Mark Baird
Vice President, Scott Valley Protect Our Water
Vice President Siskiyou County Water Users Association