I decided to post this article on my blog since I’ve received so much feedback on it. It appears there’s a lot of interest in this topic. This version will stay live after the original story has been archived on the Tribune’s website. – JSA
A controversial bill that would give the Department of Homeland Security unprecedented authority over federal lands within 100 miles of the United States' border is making its way through Congress.
The proposed measure, called the "National Security and Federal Lands Protection Act," would let Homeland Security waive 36 major federal environmental protection laws in order to facilitate border patrol activities on public lands.
Supporters of the bill say it would give U.S. Customs and Border Protection agents more control in securing the nation's borders. Opponents argue that the measure is overly broad and would give Homeland Security unchecked authority to disregard major environmental laws on public lands, including wilderness areas, national parks and wildlife refuges among others.
Congressman Denny Rehberg, one of the 49 50 Republican co-sponsors of the measure, said the bill is aimed at giving border patrol agents the tools they need to secure the border.
"This bill is about ending a dangerous turf war being waged between various federal government agencies - and it's a turf war that is threatening America's national security," Rehberg said. "The simple idea of the bill is to provide the border patrol with the same access on federal land that it currently has on state and private land. There is nothing about this bill that creates any new authority to intrude into the lives of Americans."
Critics, including Democratic Sen. Jon Tester, say House Resolution 1505 is on par with the Patriot Act and REAL ID, in terms of granting the federal government unprecedented and overreaching powers.
"It's a federal land grab at its worst," Tester said. "I just can't see how any lawmaker would think it's a good idea to allow the Department of Homeland Security to make sweeping decisions about our land and ignore our rights without any public accountability."
The bill would give the secretary of homeland security total operational authority over all federal lands within 100 miles of the U.S. international and maritime borders. Under the proposed law, DHS would have immediate access to, and control over, any public land managed by the federal government for "purposes of conducting activities that assist in securing the border (including access to maintain and construct roads, construct a fence, use vehicles to patrol and set up monitoring equipment)."
In Montana, the law would impact nearly the entire northern third of the state, including Glacier National Park; portions of the Kootenai and Flathead national forests; The Flathead, Blackfeet, Rocky Boy's, Fort Belknap and Fort Peck Indian reservations, the Upper Missouri River Breaks National Monument, the Charles M. Russell National Wildlife Refuge, and tens of thousands of acres of Bureau of Land Management lands.
The measure also waives 36 major environmental laws, including the National Environmental Policy Act, the Endangered Species Act, the National Park Service Organic Act, the Federal Water Pollution Control Act, the National Historic Preservation Act and the Clean Air Act.
Homeland Security spokesman Matt Chandler said the agency does not comment on the specifics of pending legislation.
Kim Thorsen, deputy assistant secretary for law enforcement, security and emergency management at the U.S. Department of Interior, testified to the House Subcommittee on National Parks, Forests and Public Lands that the Obama administration opposes the measure.
"We recognize the significant ecological and cultural values of the extensive lands Interior agencies manage near the borders, and we strive to maintain their character and fulfill our mission to protect and preserve these assets on behalf of the American people," Thorsen said in written testimony to the committee. "We also believe that these two objectives - securing our borders and conserving our federal lands - are not mutually exclusive; we are not faced with a choice between the two, instead, we can - and should - do both."
According to Thorsen, HR 1505 would have a significant impact on the Interior Department's ability to carry out its mission to protect natural and cultural resources on federally managed and trust lands.
"As drafted, this bill could impact approximately 54 units of the national park system, 228 national wildlife refuges, 122 units of the National Wilderness Preservation System managed by Interior, and 87 units of BLM's National Landscape Conservation System, resulting in unintended damage to sensitive natural and cultural resources, including endangered species and wilderness," Thorsen wrote.
John Leshy, a University of California - Hastings, law professor and a former committee staffer, told the committee that compared with other legislation he has seen, HR 1505 is "the most breathtakingly extreme legislative proposal of its kind."
"I have grave concerns, not only about its wisdom as a matter of policy, but also its constitutionality as a matter of law," Hastings told the committee.
He also said that under the bill, Homeland Security's actions would be immune from court review, except for constitutional claims.
Supporters of the measure say that's exactly the point.
Zack Taylor, vice chairman of the National Association of Former Border Patrol Officers, said the foundational components of border security are national security and public safety. He said no other laws - including environmental protection laws - should ever supersede those foundational principles.
"What has happened is the importance on the environment has come to rule everything else," Taylor said in an interview last week. "In our view, the people are more important than the porcupine or the wolverine or the wolf or the grizzly bear."
Jane Danowitz, director of U.S. Public Lands for the Pew Environment Group, said the measure is part of a "disturbing trend" in Congress to undo environmental regulations in the name of public safety or national security.
"Anti-environmental bills that would never pass under their own merits are now being recast as solutions to some of the country's most pressing problems," Danowitz said. "We all care about national security and protecting our borders, but waiving core conservation measures is not the way to do it."
Supporters say the criticisms of the bill are overblown.
"HR 1505 isn't about creating new enforcement authority. Rather, it's about making existing laws actually work as intended by alleviating the regulatory burden of certain environmental laws," Rehberg said.
Rehberg said the bill is not just about preventing terrorists from entering this country, it also is about stemming the flow of illegal immigrants, drug smuggling and the abuse of public lands by criminals and drug cartels.
"At the end of the day, I never want to have to tell a Montana family that their loved one was killed by someone on drugs that got into our state because some federal bureaucrats couldn't work together to control the border," Rehberg said.
Tester said the bill has far greater implications than its supporters acknowledge.
"This is a whole lot worse than just granting agents access to certain federal lands. It gives one federal department the ability to run roughshod over the rights of law-abiding Americans and seize vast swaths of land we all own and use - with no public accountability," Tester said. "This nation is very capable of fighting terrorism without turning into a government police state, but that's exactly what this unpopular plan would do."
According to the bill's sponsor, Utah Republican Rep. Rob Bishop, the measure could see a mark-up before the end of the year.
Actress and activist Margot Kidder, of Livingston, was reportedly arrested on the steps of the White House today. Kidder, dressed in black in the photo above, was in Washington as part of a two-week protest to push the Obama Administration to deny Canadian oil giant TransCanada’s permit to build the Keystone XL pipeline. Kidder is active in the group Montana Women For. She was photographed holding a sign that said “Montana Women For An Oil Free Future.”
Kidder, best known for her role as Lois Lane in the Superman movies, was arrested fellow actress Tantoo Cardinal (in orange), who starred in Legends of the Fall and Dances with Wolves.
According to the Canadian Press:
Canadian actress Margot Kidder was among the latest slate of environmentalists to be arrested outside the White House on Tuesday, handcuffed and sent to jail on the fourth day of a two-week civil disobedience campaign against TransCanada's Keystone XL pipeline.
Kidder, born in Yellowknife but now living in Montana as an American citizen, was arrested alongside fellow Canadian actress Tantoo Cardinal by U.S. Park Police for refusing to vacate a White House sidewalk.
Just as dozens of others have since Saturday, Kidder and Cardinal were charged with failing to obey an order governing protests on the sidewalk, police said. They were expected to be released later Tuesday.
"We're the first state the pipeline goes through," Kidder, 62, best known for playing Lois Lane in four "Superman" movies, said before her arrest.
She marched from Lafayette Square, directly north of the White House, to the sidewalk lining the northern edge of the presidential residence along with three other women who described themselves as "Montana grandmothers."
"It's bound to leak, there's no way it's not going to ... they always assure us these things are safe, and they never are safe," Kidder said.
Associated Press statehouse correspondent Matt Gouras is reporting Gov. Brian Schweitzer asked MDT Director Jim Lynch to resign after discovering that Lynch’s daughter was hired by the department.
From the AP article:
Schweitzer confirmed to The Associated Press on Friday that the abrupt resignation was over concerns that the hiring of Lynch's daughter, Emily Rask, could violate state nepotism laws. Rask holds a post in the agency's human resources department.
"I became aware that he had hired his daughter. I spoke to him about it and said, 'Jim, this is a clear violation of the nepotism law,'" Schweitzer said. "On that basis, I asked for his resignation. He had an interpretation that it is acceptable. I said, 'Look, this is not acceptable.'"
Lynch had a somewhat different explanation of events:
Lynch told the AP on Friday that he is the one who offered his resignation. He also said that both he and Schweitzer agreed the hiring did not amount to nepotism under the state law.
---
Lynch said he did not get personally involved in the hiring that took place about four years ago, and he said he made sure it was all done correctly.
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Lynch said he was surprised the hiring became an issue after such a long time. He said he stayed out of the decision-making process, and said his daughter was hired on merit in a normal hiring process.
"When I heard that she was applying, I reviewed it with the legal department and human resources and they said it was acceptable for her to apply for the job," Lynch said. "Quite frankly, that was the end of it for me.
"I don't think there is anything wrong with what we did, we followed the process."
Montana Department of Transportation Director Jim Lynch abruptly resigned Thursday after 6 1/2 years as head of the agency.
Gov. Brian Schweitzer appointed Lynch shortly after taking office in January 2005.
Lynch said he gave his resignation letter to Schweitzer Thursday morning. The three-sentence letter said little, only that Lynch decided to resign to "pursue other opportunities."
Schweitzer appointed the department's chief legal counsel, Tim Reardon, to take over as director effective immediately.
"The time was always going to come," Lynch said in an interview Thursday. "When you work for the governor there always comes that time when you can leave, and when it is a good time to leave."
Lynch said he wasn't able to make plans for life after his term as director while still serving in that role.
"There were a lot of questions of me while I was director about what I was going to do next. You can't answer those, and you can talk about them, and you can't plan them while you're still a state employee," Lynch said.
Lynch, a former Kalispell businessman, is rumored to be considering a run for governor. Lynch didn't close the door on that possibility.
"I think this gives me an opportunity to evaluate (a possible gubernatorial campaign) and evaluate what opportunities are out there both in the public and private sector," Lynch said. "I'm just going to take a deep breath and sit back and take my time. I'm not in a hurry to make any decisions one way or the other."
In an e-mail press release announcing the resignation Schweitzer thanked Lynch for his "service and commitment to the state and the people of Montana."
“I wish him well as he moves back to the private sector," Schweitzer said. "Jim was always one of the first people on the scene to any road incident; he was always willing to lend a hand in our towns and communities with snow removal or gravel roads and was a great advocate for highway safety.”
Schweitzer did not comment on why Lynch resigned.
MDT has come under scrutiny over the past year for the agency's handling of ExxonMobil's controversial proposal to haul hundreds of massive Korean-built tar sands processing modules from Lewistown, Idaho, along the Rocky Mountain Front and on to the Kearl oil fields in northern Alberta.
Lynch told the Interim Revenue and Transportation Committee in a 2009 hearing that the company was proposing a "permanent high and wide corridor" across the state to service the Canadian tar sands. Lynch later backed off that statement saying that current project is a one-time only proposal.
Critics of the project say MDT failed to adequately study the potential cultural, environmental and economic impacts of such a project.
Last month District Judge Ray Dayton of Anaconda upheld a request by Missoula County and three conservation groups to stop Imperial Oil/ExxonMobil from transporting the megaloads through the state.
Lynch said the Kearl Module Transportation Project had nothing to do with his decision to resign.
"That's what's nice about Montana, we have the (Montana Environmental Policy Act) process in place to deal with these kinds of projects," Lynch said. "That issue will continued to be played out and it won't be over anytime soon, but that's just one of many aspects that we deal with at MDT."
Lynch said this is a "great time" for him to leave the department.
"There was always going to have to be a time that I have to walk away," Lynch said. "We're delivering a great program. We're sound, we have a fund balance in our program and a great staff at MDT that work hard for the people of Montana."
Reardon, an Anaconda native, has been MDT's chief legal counsel since June 1994.
Gov. Ted Schwinden in 1981 appointed Reardon to serve as a workers' compensation judge, a position he held for 10 years. Prior to that appointment Reardon worked as an attorney in the division of workers compensation and worked in the Department of Health and Environmental Sciences. He received his bachelor’s degree from Carroll College and his juris doctorate from the University of Montana.
Reardon will continue to make $99,984, the same salary he is currently making. Reardon is married and has four kids and four grandkids.
“I am honored to have Tim on the team as the director of the Department of Transportation,” Schweitzer said. “I have every confidence in his ability and know he will serve the people of Montana well.”
| Fergus County Judge Wayne Phillips |
Beach is the 49-year-old Poplar man convicted of the 1979 killing schoolmate Kim Nees. Beach has long maintained that his confession to investigators in Louisiana — the only evidence tying him to the crime — was coerced.
Over the years Beach offered a theory that a gang of jealous females killed Nees in an assault that got out of hand. This week his legal team — for the first time — got a chance to present that theory to a judge. Beach hopes that Phillips will find the evidence convincing enough to order a new trial.
For nearly three days, Beach’s lawyers examined witnesses who gave testimony that bolstered Beach’s claim of innocence. One woman testified that she heard the “horrific” screams of multiple girls the night Nees was murdered. Other witnesses told the court that, over the years, three women admitted to playing a role in the crime.
| Beach’s attorney Peter Camiel |
At one point, Beach’s lawyers won a series of arguments related to the admission of evidence. 
| Assistant Attorney General Tammy Plubell |
Beach’s legal team had their share of frustrating moments, too. Time and time again they tried to convince the judge to allow testimony from University of San Francisco professor Dr. Richard Leo, an expert on false confessions. However, the judge rebuffed those efforts and Leo was not allowed to testify. The judge also denied Beach’s request to recall a witness after later learning new information stemming from his testimony. The judge refused, on the grounds that the defense had ample opportunity to ask the questions during cross-examination of the witness.
“All we can hope for is that he listens to all of the evidence and considers it carefully,” said Bobbi Clincher, Beach’s mother, before the hearing.
| Left: Beach’s mother, Bobbi Clincher |
Phillips was the third judge assigned to hear Beach’s petition for post-conviction relief, and he scheduled this week’s hearing more than a year after he was assigned the case. Prior to the hearing no one knew going into Monday if Phillips would allow witnesses from Beach’s amended petition to testify. Some people, including members of Beach’s legal team, were concerned that Phillips might refuse to hear the new evidence.
However, Phillips heard from nearly all of Beach’s witnesses over the course of 2½ days.
“I was very satisfied with the way this hearing was conducted and I am thankful to Judge Phillips,” Beach said in a jailhouse interview after the hearing concluded. “I thought he was patient and open to letting both sides present their very best case. Judge Phillips turned out to be everything I had been informed he was: fair, patient, and open minded to everything both parties presented.”
Robert “Bobby” Atkinson is the brother of Sissy Atkinson, one of the women Beach’s witnesses accused of playing a key role in Nees’ murder. Robert Atkinson, who was on the Poplar Police Department at the time of the murder, sat quietly in the courtroom gallery all three days. He was one of the few of the 30 or so people in the audience who was not there to support Beach, though Atkinson doesn’t appear to have any harsh feelings toward the man who has repeatedly accused his sister of murder.
During a break in the hearing Wednesday Robert Atkinson told The Associated Press he agreed that evidence in the murder case was mishandled . He also said Beach may not have had a fair shake at his original trial, and that Beach probably has served enough time in prison for the crime.
Robert Atkinson also said he believes Beach killed Nees largely on Beach's confession.
Robert Atkinson said he also does not believe his sister, Sissy Atkinson, who lived a rough life as a drug abuser, was involved. However, he speculated, that she might have taken credit over for the killing over the years as a way to bolster her credentials among a tough crowd.
"She likes that reputation," he said.
Sissy Atkinson told the AP that she never took credit for Nees’ murder.
Glenna Nees Lockman, Kim Nees’ older cousin, spent two days at the hearing, at times sitting next to Clincher. After the hearing Lockman said she came to Lewistown to support Beach, whom she said she believes is innocent. Lockman was adamant that she was speaking only for herself, and not for the Nees family.
“I was very satisfied with how this hearing went,” Lockman said. “I guess the only disappointment was that (former Roosevelt County Undersheriff) Dean Mahlum remembered every detail that might have helped the state, but couldn’t seem to remember anything for the defense.”
Peter Camiel, Beach’s lead defense attorney, said he also was pleased with how the hearing went.
“Going in we didn’t know if he (Phillips) would let us present any of our new witnesses,” Camiel said. “We’ve got a very hard-working judge who has taken this case super seriously.”
| McCloskey consults with Beach |
“I think our witnesses were believable, credible and they all had the opportunity to present their story to the court that shows that Barry is completely innocent of this crime, and played no role in it,” McCloskey said. “We look forward to the judge’s ultimate decision down the road.”
Both sides will present briefs to the court on or before Oct. 14. Phillips said he hopes that by Thanksgiving he will make a ruling on whether to grant Beach a new trial, or call for another hearing to hear Beach’s constitutional claims.
Light called this week's hearing "very, very unusual."
"We may not see another hearing this is many years," Light said. "Now this part is over, but we believe there will be another hearing."
Contributing: The Associated Press
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