From the June 1999 Idaho Observer:
WDFW enforcing bogus, discriminatory emergency
by Don Harkins
What is it called when you file a false police report? Fraud. What is it called when you purposefully damage property to collect insurance monies? Fraud. What is it called when you falsify financial statements to lower taxes or get a bank loan? Fraud. What is it called when the state declares an emergency that exists only for political reasons while the emergency steals the value of innocent peoples' property? The law.
Why is it that when ordinary citizens commit a fraud it is called fraud but when the government commits fraud the courts interpret the fraud as enforceable law?
In 1982 the State of Washington Department of Game was in litigation with the Colville Indians over fishing rights issues. According to long-time Inchelium resident Ervin Palmer, the state's attorney general's office informed the game department that it would not prevail over the Colvilles in court. Rather than lose, the state agency struck a bargain with the Colvilles that caused it to fraudulently declare a state of emergency.
The state of emergency (WAC 232-28-20501), is the Closure of all lands within the Colville Indian Reservation to the trapping and hunting of all wild animals, blue grouse, ruffed grouse, Franklin grouse, sharp-tailed grouse, sage hen grouse and morning doves.
Because Indians are sovereigns and not necessarily under the jurisdiction of state game laws, the above emergency only applies to the approximately 3,500 non-native Americans who own patented, deed-free lands within the borders of the 380,000-acre reservation.
On August 29, 1982, what is now the Washington State Department of Fish and Wildlife (WDFW), without any raw field data or scientific evidence of any kind and without adhering to its statutory obligations to seek public notification, declared a state of emergency regarding wildlife on the Colville Indian Reservation.
Section 2 of the order, No. 176, even states that it will not publicly announce its intentions to declare the emergency: We, the Game Commission, find that an emergency exists and that the forgoing order is necessary for the preservation of the public health, safety, or general welfare and that observance of the requirements of notice and opportunity to present views on the proposed action would be contrary to the public interest. (Emphasis added)
Agreement discriminates against non-Indians
Section 2 then goes on to state how non-natives who live on the reservation, or the people who must acquiesce to the jurisdiction of the state, are to be discriminated against during the enforcement of the emergency. A statement of facts constituting such an emergency is: There are insufficient populations of the above mentioned wildlife species to allow non-tribal hunting and trapping. Such rule is therefore adopted as an emergency rule.
The August 29, 1982 Agreement Between Confederated Tribes of the Colville Indian Reservation and Department of Game, Sate of Washington, proves that the fishing rights litigation between the two entities were resolved by WDFW's emergency declaration. The agreement recognizes the parties' participation in an action in U.S. District Court over fishing rights and that, ...the parties desire to negotiate a settlement of related hunting and fishing issues...
Under Section 3 of the agreement between the Colville Tribe and the WDFW, and under the heading Non-Applicability to Colville Indian Persons, the discriminatory nature of the emergency and the agreement is further illuminated. This Agreement is applicable only to the activities of persons on the Reservation who are not members of the Tribe and shall not apply to any activity by Tribal members.
Palmer, 81, who has been fighting the emergency since 1983, purchased his 120 acres of land in the wildest, most game-rich land anywhere in the U.S. 39 years ago. My wife and I had planned to subsidize our retirement income by trapping on our own land. This so-called 'emergency' has put a stop to that plan for the last 17 years.
I have no quarrel with the Indians, said Palmer. They are only doing what they feel is in the best interests of the tribe. My beef is with my government because it saw fit to trade away our property rights for political reasons, he said.
The game department kept the emergency alive with at least five new orders and then made amended Washington Code to make the emergency permanent.
The original declared state of emergency has been kept alive year after year even though everybody who lives in the area or who has ever been there can attest that the rugged, richly-forested area is teeming with all of the wildlife populations that the state apparently believes to be dangerously decimated.
Even newspaper articles published in September and October, 1982, boasted the abundance of game on the Colville reservation. There are a lot of excellent general deer hunting areas outside the two refuges. There are some trophy bucks taken throughout the reservation every year by tribal hunters, commented an article in the Tribal Tribune, September 24, 1982.
The front page of the October 21, 1982 edition of Colville's Statesman Examiner pictured an Omak man with 10 deer racks in the back of his truck. The deer had been taken during the October 9 to October 17, 1982 season on the Colville Indian Reservation.
Palmer has contacted everybody involved and has contacted every government agency, state and federal, that is commissioned to investigate fraud and abuse within government. Although not one of them, as tax-paid entities, has decided that this case deserves closer scrutiny, Palmer has accumulated a paper trail that leaves no room for speculation as to the myriad violations of state law, the Constitution, civil rights and due process that have been committed to keep this emergency alive.
Palmer has even unearthed the official documents which prove that the WDFW has been using this fraudulent state of emergency to qualify for federal habitat restoration monies in excess of $120,000,000.
Game commissioners duped by state agency
The WDFW has a five-member commission of lay people that are appointed by the governor. It is the commission that adopts orders that are implemented and enforced by the WDFW. The commission, however, relies upon information supplied by the state agency to make intelligent decisions with regard to agency policy.
In an answer to a 1991 interrogatory posed to former Commissioner Tom Nelson which asked that, since he is already on record as being in disagreement with WAC 232-12-24401 which he did not sign, why did he sign WAC 232-12-20501 that is worded the same way?
Nelson could not remember how he voted without looking it up in Olympia. However, he did say that, If I did vote for it, it would not have been based on biologist data but on the request of the game department.
According to former state game commission chairman Verne Ziegler (Ziegler Plumbing and Electric stores) in several conversations with Palmer over the years and a letter to then WDFW Director Bern Shanks dated September 27, 1997, Ziegler and the other commissioners were finally convinced [by the state attorney general's office and WDFW officials]....that at least temporarily, the trade off [the emergency] would avert further litigation [with the Colvilles regarding fishing issues].
Ziegler's letter to Shanks was a plea for him to undo the wrong that had been done to Palmer and other non-Indian reservation residents. He told Shanks that, In reality, there was never a conservation issue established by the department or the tribe. In fact, the closure was a mitigation with the tribe on other unrelated issues, including a lawsuit that the tribe had against the department regarding the authority over a lake also established within the bounds of the reservation.
Ziegler, who has apologized repeatedly to Palmer over the years for what happened, told Director Shanks that he felt that it was grossly unfair to restrict one user group from the privilege of hunting lands that fell under state jurisdiction only to appease another user group...[I]n this case, one particular user group, not only the land owner but other legal hunters, are discriminated against for the perceived benefit of the tribe that is not a user group under the jurisdiction of the state.
Regarding how Palmer and 3,500 other people have had the use of their property taken without just compensation so that the state could avoid an embarrassing jurisdiction defeat in court, Ziegler told Shanks that litigation mitigation ...was a terrible reason for restricting fee owners the privilege of hunting on their own lands.
Ziegler had previously stated his belief that the emergency was declared out of political expediency rather than environmental necessity in an answer to a 1991 interrogatory. Ziegler stated that Conservation was never an issue in the formation of this WAC...the WAC was, in fact, passed for political purposes. It was explained by the Department's staff to the Commission that not only did the Department not have funds to fight the Colville tribe's fish related dispute, but in all probability the Department would lose.
Palmer, whose land is patented and carries an allodial title, still pays property taxes that have not been reduced to parallel land use potential that has been arbitrarily diminished by WDFW policy. Palmer has affidavits from property owners who have declared that their property values have been diminished by as much as 50 percent since the WDFW declared the emergency.
In 1984, Ferry County Assessor John Sweetman submitted the statement that, Yes, this restriction (the emergency) does affect property values.
Palmer also has an active tort claim that identifies state takings as costing him $1,100 per month. The meter is ticking and the longer the state refuses to rescind the fraudulent emergency, the more it is going to cost state (and federal) taxpayers to pay for this politically motivated emergency.
Finally, Ziegler wrote Shanks, in my eyes, the ultimate misuse of government authority is condemnation, in this case loss of privilege, without just compensation. Under the condemnation without compensation scenario there is also the fact that I am sure can be proven in some, if not all cases, the actual dollar value of the fee owners lands are reduced because of the loss of hunting privileges certainly understood to exist when the lands were patented and, in fact, these privileges exercised by the land owners for nearly a century before being eliminated by the grossly incorrect, unfair, misuse of commission authority.
Brummett interrogatories further prove conspiracy
Retired Seattle-area resident James Brummett heard about Palmer's apparently futile attempts to find justice and attempted to prosecute the issue civilly in Thurston County Superior Court. After spending nearly $50,000 and eight years of his life, Brummett was unable to get the court to recognize the obvious -- that WDFW was committing a fraud that resulted in the unconstitutional taking of private property without just compensation.
However, he supplied questions (interrogatories) to Commissioner Ziegler and Commissioner Nelson in October, 1991. The answers to his questions are very enlightening.
Question #6 for Nelson asked, Was it (the emergency) for 'conservation' or was this a 'sham' for political reasons?
Nelson's answers were all submitted in his own handwriting. His answer to #6 was, Political reason! White man trying to make it up to the (super citizens).
Interrogatory #4 asked whether or not the emergency was declared in the interest of public health and safety or was it just a cover. Nelson's response was, as I remember there was no emergency but some kind of agreement between Indians and game and this is what it took to wrap up loose ends.
In response to the question, What was the emergency in the closing of the hunting and trapping of the named wildlife species for insufficient populations? Nelson answered, To my knowledge no emergency existed here as the Indians, as I remember, were hunting and trapping all alone & just wanted it all to themselves.
Commissioner Ziegler's answers to the interrogatories were just as forceful as the statements he made to WDFW Director Shanks. I felt then, and still do, that it is not correct to tell a man he cannot hunt on his own property if he has fulfilled the requirements of the law in that regard and if conservation or safety reasons do not prevent it.
Both Ziegler and Nelson stated for the record that they would not vote for the implementation of the emergency if faced with that decision today. Nelson stated that ...now only the governor has the power [to declare such an emergency]."
That is interesting because Palmer recently wrote a letter to Washington Governor Gary Locke who claimed impotence in this matter and that he is powerless to do anything due to constitutionally-mandated separation of powers.
WAC 232-12-24401 stipulates that there be yearly reviews of the Colville agreement. There is no evidence to suggest that an annual, scientifically-credible review has ever been conducted as per the agreement. Brummett asked Ziegler if he had participated in any yearly reviews while he was on the commission. Ziegler stated that, I did not participate in any yearly reviews of the Colville agreement as there was really nothing to review. The Colville nation never brought further information or data that substantiated any reason for a conservation closure.
Washington State Senator Bob Morton has submitted his condemnation of WDFW's actions in this matter as has another former commissioner, Norman Richardson.
Nobody has ever seen any data that would support the original declaration of an emergency. Nobody, not the state, not the Colville Tribe nor the federal government has ever submitted any data that would support the continuation of this declared state of emergency.
Janet Reno's office and the federal justice system
Palmer has recently gotten the attention of 7th District Washington State Representative Bob Sump.
On April 23, 1998, Sump attempted to communicate Palmer's case to Assistant U.S. Attorney James Connelly and submitted the evidence to his office. Aside from assigning the case to another assistant U.S. attorney with professional ties to the Colville Indians that a reasonable person would see as presenting a conflict of interest, there was no indication that the Department of Justice was planning to investigate this matter.
Unable to get Connelly to move forward with an investigation, Sump wrote a letter dated May 18, 1998, to Janet Reno. The letter stated, You will find enclosed materials that should prove to you, without a shadow of a doubt that the Washington State Fish & Wildlife Agency and certain of its employees have conspired to defraud and deny the civil rights of a number of my constituents. I have presented this information to Mr. James Connelly, the federal prosecutor for eastern Washington. Mr. Connelly has assigned this case to Assistant U.S. Attorney Bruce Didesch. Mr. Didesch has a strong affiliation of over 15 years of employment with the Colville Confederated Indian Tribes.
Sump concluded his letter by stating that I protest in the most strenuous form of this obvious conflict of interest and ask you to personally look into this matter and, at the very least, assign this investigation to a person who can review these materials with a neutral point of view.
The letter was answered by Connelly in a letter dated June 1, 1998. Connelly's one-line letter to Sump simply stated, Please be advised that I have transferred the above-captioned matter to Chief Civil Attorney James R. Shively for further handling.
Both Sump and Palmer met with Shively in July, 1998. We spent two hours with him in Colville and walked him through all of the documentation. He has been sitting on all of the evidence -- including all of the statements made under oath by Ziegler and Nelson, and we have heard nothing from him in almost a year, said Palmer.
So far, The U.S. Department of Justice and the Washington State Attorney General refuse to do anything more than acknowledge receipt of the evidence. Supreme Court Judge Gerry Alexander, who 13 years ago ruled in favor of the state in the 1983 case Palmer vs. Washington Department of Game, also refused to do anything but acknowledge receipt of the evidence. Palmer even attempted to give the judge an out by explaining that state agencies, in conspiracy, blind-sided you and your court into the fraud.
Palmer has also contacted the U.S. Department of the Interior Office of Equal Opportunity and the American Civil Liberties Union--neither entity has expressed an interest in his case
Editor's note: The documents tell a story that is so simple to understand that a sixth grader could see the violations of civil and constitutional rights that have been committed in this matter.
This is the most blatant vilation of property rights I have ever seen. Palmer has done a magnificent job of accumulating particular pieces of evidence that prove, unquestionably, exactly what you have read: That the state fraudulently and without any scientific or conservation-oriented reasoning, declared an emergency that discriminates against non-Indians to avoid an embarrassing defeat in court over unrelated issues. Although Palmer has mountains of paperwork to prove his case, the evidence that it took to convince me all fits in a manila envelope. It is the same packet of information that convinced Ziegler, Sump, Nelson and Morton -- people who can be objective and introspective. It is the same packet of information that has been given to government attorneys and bureaucrats who are apparently too obsessed with their own careers to see fraudulently criminal and discriminatorial behavior when it leaps off of the page at them.
This case has all of the necessary pieces. It has the admissions of a majority of the commissioners who were errantly convinced to approve the order for political reasons. It has newspaper articles published by the tribe's own newspaper that boast the abundance of game in the area declared by the state to have insufficient populations.
It also has the insistence of government to avoid the issue -- which in itself is a powerful indication that Palmer is right.
We also have perhaps the most compelling reason of all as to why no one will admit the wrong and simply rescind the order until such time as it can be proven that there are insufficient populations of game animals in the Colville Indian Reservation: The state has used the fraudulent declaration to justify taking advantage of federal monies earmarked for wildlife habitat restoration to the tune of $120,000,000 over the last 17 years.
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