The federal land management agencies in Utah have embarked upon a statewide initiative to designate certain rivers, streams and dry washes under the federal "Wild and Scenic Rivers Act of 1968."
Once a channel or channel segment is designated by Congress as either "wild," "scenic" or "recreational," all activities of man that may alter the characteristics of the designated area will be subject to review and approval by the federal agency. This includes activities on adjacent, private land. In the words of one agency representative, "we'll have a seat at the table" when water or land development potentially altering a designated segment is considered.
What is wrong with this picture? What is wrong is that the federal agency brings the constitutional Supremacy Clause to the table with it. The agency is not just another "seat at the table." Under a presumption of supremacy the agency becomes the controller of water and land development in the State where designated channels might be concerned. Most people seem to see no problem with this federal role.
At the same time most people would also say that it is important to protect and defend our Constitution. Trouble is, in this instance we can't have it both ways. The federal government was established under the Constitution with certain specific powers. Alexander Hamilton said the proposed Constitution "leaves in (state) possession certain exclusive and very important portions of sovereign power."
James Madison said: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce .... The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state."
Relative to water and state control over it, the United States Supreme Court has said "Obviously, and it may be said primarily, among the incidents of that equality, is the right to make improvements in the rivers, water-courses, and highways situated within the State." Withers v. Buckley, 61 US 84, 1857.
There are those who would sophisticate the words of the framers of the Constitution and early court opinion. They would say that new societal values and "modern" court precedent have changed the roles and powers of the Congress and the states. They would say that we have a "living" constitution that recognizes these changes so it can be rewritten practically on a moments notice to meet modern needs. The fact is, if we have a "living" constitution, we have no constitution at all. We have only the rules set by the power brokers of the moment.
If the Constitution should prove outdated, a means was provided for its amendment by the people in conventions of their states. No amendment was made whereby Congress might expropriate the waters of a state for wilderness, scenic or recreational purposes. Under the Constitution, if it is to be properly construed, Congress may command the waters of a state only by the consent of the legislature of that state. If a state cannot command its waters against the demands of special interest factions working their will in Congress, then state internal sovereignty means nothing. If state internal sovereignty means nothing, then Constitutional limitations on the exercise of federal power also mean nothing. If limitations on federal power set down in the Constitution means nothing then the Constitution means nothing. At this point, the Constitution becomes no more than a fluid set of discretionary guidelines that Congress may obey or not, depending upon the will of its power brokers.
The question underlying the federal Wild and Scenic River initiative is not which streams or dry washes to designate and place under centralized, federal command but whether Congress has the authority under the Constitution to engage in such a program in the first place?
The answer to this question will tell us one of two things. Either the framers and early court opinions deceived us with regard to the sovereignty of states and the limitations on federal power or the federal Wild and Scenic River initiative now before us is a Constitution and liberty destroying fraud with the federal government acting well beyond the limits placed on it by the people.
Some may take offense at the harshness of these two alternatives. The truth is, however, that there are no other alternative answers. People who value the liberties they possess under original and unaltered constitutional principles, and particularly those who have sworn solemn oath to "support and defend' the Constitution as it is written, should closely consider this question.