Wayne Heimer: Eagle Pass, Texas, and how it relates to Alaska lands issues and federal overreach

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Texas National Guard stand by razor wire at Shelby Park, City of Eagle Pass, Texas. Photo credit: Gov. Greg Abbott

By WAYNE HEIMER

The federal government owns lots of Alaska land. It is in Federal Conservation System Units, also known as FCU lands. Management of these FCU lands is vested in U. S. Department of the Interior agencies, specifically the National Park Service, U.S. Fish and Wildlife Service, U.S. Forest Service and Bureau of Land Management.

The Department of Interior is so crazy-zealous about protecting these lands, it has argued that navigable water, which is owned and managed by the State of Alaska but flowing between FCU lands, is actually federal public land. 

The United States Supreme Court has twice ruled – unanimously — that Alaska’s owned navigable water is not federal public land. Still, the feds claim expansive administrative rights that are not provided for in law.

In Texas, the City of Eagle Pass owns a city park called Shelby Park. Perhaps you’ve heard of it. Shelby Park is located along the Rio Grande River and is a common crossing point for undocumented wading/swimming immigrants.

The State of Texas and the City of Eagle Pass argue that non-credentialed immigrants (those without passports or entry visas) and those federal employees “processing them” should not use Eagle Pass’s Shelby Park as a staging area for undocumented immigrants before turning them to go anywhere in the USA.

The Dity of Eagle Pass, with support from the State of Texas, asserted its ownership/management rights to Shelby Park by moving to stop (via physical barriers) what it considers inappropriate use of the park by undocumented immigrants. It also moved to disincentivize undocumented immigrant use of its park by banning those Executive Branch officials “processing” undocumented immigrants from its park.

In response, the U. S. government took Texas directly to the U.S. Supreme Court over Texas’s (Eagle Pass’s) allegation of a “sovereign ownership right” to manage use of Shelby Park. The results of the feds “direct action” are confusing for everyone because sovereignty issues (a gray area between states and the feds) frame the basis of the case. So far, the Supreme Court has granted the feds a temporary restraining order “restraining” Texas (the City of Eagle Pass) from “restraining” immigrant use, and also “restraining” federal agent “immigrant processing” use of Shelby Park.

State v. federal sovereignty issues are legally very sexy and complex because the Constitution is not crystal clear about boundary protection, jurisdiction, and responsibility. Lawyers love this sort of thing.  

However, the more precipitating action or “root cause” with Shelby Park (and here in Alaska) is that the executive branch is using executive orders to go beyond the enumerated powers of Congress. Abuse of executive power should be the larger issue.

If the enumerated powers of Congress are restrictive (as I assume they are), there’s only so much Congress can do. Telling the City of Eagle Pass how to manage access to and use of Shelby Park isn’t one of the “enumerated powers” of Congress. 

So, I wonder, “How can the executive branch do stuff by executive order that Congress can’t do (and hasn’t done) by passing federal law?”

Alaska’s long-standing disagreement with the executive branch over wildlife management is strikingly similar. The executive branch (where the Interior Department lives) has moved beyond what Congress did (or even could do) in taking over management of subsistence use/allocation of wildlife on FCU (public) lands in Alaska. Interior has accomplished this by selecting some vaguely idealistic Alaska National Interest Lands Conservation Act (ANILCA) intent language reflexively passed 45 years ago.

In Eagle Pass, the feds claim they can tell the city what it must do with its city park. In Alaska, the executive branch tells us what we must not do in management/allocation of Alaska’s, owned wildlife resources.  

Granted, there are some “incentives” in ANILCA to get Alaska to discriminate between Alaskans in use of Alaskan resources.  They do not, however, include federal takeover. Alaska tried to satisfy the feds insistence on discrimination with our Alaskan subsistence law. Remember, ANILCA contains no language about federal management takeover. That was just an administrative threat, and should be recognized as the bluff it was because it remains outside of Congress’s “enumerated powers.” 

In summary, the Eagle Pass situation is homologous to Alaska’s differences with the feds. The only difference is, the executive branch is telling Eagle Pass/Texas what it must do while telling Alaska what it must not doBoth are overreaches beyond federal law by executive branch minions.

It will be a shame if an “unsupervised” executive branch (because Congress pays little attention to monitoring the executive Bbranch) gains more power-through-precedent in Texas. The issue cries for definition/restriction of executive power on a larger stage. That’s in Alaska.

Wayne E. Heimer has been involved in state/federal relations ever since ANILCA got misinterpreted by the feds before it was even passed. It still makes his head hurt.

28 COMMENTS

  1. Yes, this centralized federal (executive branch) government is notorious for pushing the limits of authority past its respect for the states that created it. It has become a routine based on ideological differences rather than liberty. This pattern of abuse started after reconstruction and with the dummying down of our education system has continued to now. Since then, the question of executive powers has only been partially addressed by SCOTUS.

    Why the current 26 Republican states have not sued over this for various violations of the enumerated powers clause, executive authority and republican form of government seems to be no better time?

  2. ” the Constitution is not crystal clear about boundary protection, jurisdiction, and responsibility”
    Let’s start here- Article 4, Section 4 ” The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion”… As opposed to enabling an invasion.

  3. I don’t believe SCOTUS can interfere. Cohen v Virginia. Not subject to judicial review. sua Sponte no jurisdiction. Texas V White answered that question. mIlitary is outside courts and this was established long and antecedent to the defects of articles of incorporation. Texas can go to Congress and ask for a declaration of war under Congress Powers under Section 8 fo define offences against the law if Nations, land and water issues, providing for repelling invasions Ar.1Sec,10. They must do this in writing which they have done three times praying for relief so Congress can comprehend first then understand and as employees if we the people as our servants they have a duty to perform for their employer . We the People.

  4. Everyone submit affidavits to your Congress person saying who, what, where when to be attached according to rules of federal evidence so they may act lawfully as a body politic on our behalf. aAso, support Military Accountability Act which our representatives are not telling us about.

  5. The authors either willful ignorance of Title VIII of ANILCA or his purposeful misrepresentation of it are laughable. It was originally going to be a native preference instead of a rural one. The latter ensures that anyone living in a rural community can hunt, trap and fish on Federal public lands (which are owned by the people and not the government by the way) and therefore benefit from the often more liberal harvest provisions. Somebody like myself living in a city has no real need to live a subsistence lifestyle for obvious reasons. Someone living in the bush has a very real need to do so. To equate subsistence with what’s going on at the border is ludicrous. Ludicrous but sadly, not surprising.

    The author also seems to imply that the fedral agencies should have zero say over how they manage their conservation units on behalf of the American people. Most of the closures to non-rural people are due to biological/conservation concerns, not because the Feds just feel like “overreaching”. Anyone that takes the time to do an even cursory search of the public record concerning this would no how true this is and even in cases where closures are in place for other reasons, they are based on provisions provided for in ANILCA itself.

    • C(ommunist)man, stalwart supporter of the status-quo power establishment, rushes to the ramparts yet again in defense of coercive authority!

      Keep licking those boots, cman! Maybe one day your masters will actually give you the reward that you feel that you deserve for being their lickspittle and quisling.

      Oh, but that’s right, you are a “libertarian”!
      That was one of the funniest (and most absurd) claims that I’ve ever read on MRAK, and I’ve read some real doozies.

      • Jefferson,

        Do you want to refute anything cman wrote, or do you just want to attack him?

        Personal attacks are only used when one cannot rationally argue a point. They are used to deflect from the topic at hand to make the argument about the person, not the topic

        Suzanne, why do you allow personal attacks against posters here? What are the rules for posting here? Aren’t we supposed to be respectful of others on these comments?

          • Thanks for the response Suzanne.

            I just see a few commenters on your site who constantly attack people and not their points.

            I see these comments as a way to communicate and discuss topics with differing views from around our community. I see many people here who want to make Alaska and our country better. We may disagree on how to get there, but we all want our country and state to be as good as it can be. But when some commenters make personal attacks on every post, no discussion can be had

            We all have more in common than we think.

        • Pablo, Suzanne may or may not allow such comments, but personally I feel very little qualms about being uncivil towards clear and obvious traitors, and towards those who advocate evil.

        • It’s ok Pablo. It’s all Jefferson has. He doesn’t have a working relationship with facts. Plus, he lives to attack people and I would’t want to deprive him that which gives him joy.

  6. Stop calling them migrants. Stop calling them immigrants. Stop calling them undocumented. They’re illegal aliens. Illegal aliens is a legal term with criminal consequences. The associated press declared that illegal aliens isn’t supposed to be used anymore because of “negative connotations”. We don’t call thieves amateur property collectors. We don’t call rapists sexual explorers. We don’t call drug dealers aspiring pharmacists. Since the 1980s over 100,000,000 illegal aliens have entered the country and the children they gave birth to inside America are also illegal aliens. Inb4 Greg Fockner comes in screaming about birthright citizenship and how wanting air conditioning and cell phones is a human right

  7. Could it be possible for SCOTUS and it’s coming CHEVRON decision fix this? Preventing the creation of law by the administrative state? We think so. But will SCOTUS have the balls?

  8. The US Constitution Article IV, promises that the federal government “shall protect each [State] against invasion,” No other than Trump himself declared the borders aer being invaded. Eagle Pass has exactly zero to do with conflicts between the Alaska Constitution and Federal Law

  9. I’m somewhat amazed that the Sturgeon decisions were glossed over and not expounded upon here. To say “The United States Supreme Court has twice ruled – unanimously — that Alaska’s owned navigable water is not federal public land” doesn’t quite do justice to the similarities and potential precedents.

    Navigable water is not federal public land, the twice unanimous Sturgeon decisions reinforce this and the Submerged Lands Act states land under navigable waters is owned by the states. Much of the US Mexico border through Texas is made up of navigable waters, the floating barriers were placed in navigable waters belonging to the State of Texas, not The United States of America. Borders between cities, counties/boroughs, states, and Countries are along rivers and lakes, both sides do not own the other side and everything in between. The actual border on much of the Mexico Texas border clearly belongs to Texas, not the US Federal Government since the border is on submerged land under navigable water that belongs to Texas.

    • The Sturgeon case was not glossed over, its just not related to subsistence. The reason that Katie John remains the law of the land is that the Federal government has a “reserved water right” on navigable waters within federal reservations (like parks, refuges, etc.), even though the State owns the submerged land. In those areas the federal subsistence priority applies.

      Now, don’t shoot the messenger here; I’m merely stating what SCOTUS said in its Katie John decision and what current case law is. That’s why it mentioned that Katie John remain untouched in Sturgeon because the latter was about access, not subsistence fishing.

      • Cman,

        The third paragraph in this article says “The United States Supreme Court has twice ruled – unanimously — that Alaska’s owned navigable water is not federal public land. Still, the feds claim expansive administrative rights that are not provided for in law.” That is referencing the Sturgeon decisions. Katie John and subsistence don’t have anything to do with the subject at hand. The “reserved water right” does not give the Federal Government the authority over water that belongs to the States, in fact the Federal “reserved water right” is subordinate to any rights claimed by the states, and in no way has anything to do with a state placing barriers in their water.

  10. Public land for American inhabitants to go upon is public lands when it is designated Tidelands and given at statehood to the people to rely upon for ever. The US S when it gives title can not go back and take it back ever again for ownership to require some other interests and the federal government did not do that after 1959 Statehood regardless of spurious claims to the contrary and this falsehood published lovingly in print media for the people to lovingly cherish to the harm of private property delivered from the US Homestead Actm. at one time under Governor Murkowski the Alaska Attorney General understood the “forever” concept.. What a detriment lies are to the people. But if that your thing all your hopes are ephemeral.

  11. I find Jefferson’s comments to be rock solid and I tend to agree with his incisive statements. Alaskans are in left field and tend to not know the law, their rights or how to articulate them, claim them and tell how they got them. The time capsule under General Lee’s Statue contained a time capsule which had enclosed a Fourth Grade Curriculum where American children were taught the Law of all the founding documents. This teaching has purposefully been removed from the current approved curricula in well funded Alaska education materials and is the fundamental America is poised to be subsumed by foreign forms of governments per Saul Alinsky styles. More is the pity. it is offensive to hear that to speak up for the founding documents is characterized as “the worst” but even when our countrymen are wrong we are obliged to love them but they don’t get to take our God-given rights and hand them over to foreign powers. If they are relying on unenforceable treaties they may learn treason is unenforceable. Bad educations are bad and yield results of a great nation losing its righteous liberties.

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