Part I: The Source of Authority Found in Four Founding Documents – The Declaration of Independence, The Articles of Confederation, the Northwest Ordinance, and the Constitution of the United States of America
Guest Opinion by David Erlanson Sr. of Bonneville County
Today folks, let’s discuss who really has authority, control, and jurisdiction over the Waters of the United Status (WOTUS).
When one observes the actions of the Federal Government through enforcement procedures of its agencies, one would conclude that the federal agencies enjoy the power to control, meaning they have a legal Constitutional-basis for their actions.
In today’s media outlets, the phrase “federal overreach” is a common term denoting the power extended over the States and its citizens, or the inhabitants of its territorial holdings, whereby the state and its citizens feel the Federal Government encroaches into their affairs in an extreme, possibly unwarranted, fashion. This fashion, so to speak, may be unlawful in consideration of federal laws, Supreme Court rulings on the particular subject, or state law.
Considering one of the most essential resources, water, the federal government’s unconstitutional, therefore unlawful, overreach is a fact, not fiction. This is especially true when considering the individual States that are located on or westward of the 98th meridian, which bisects the contiguous landmass we know as the United States.
So, please bear with me and let me explain the facts as they stand today in 2024, regarding control over the WOTUS and the relationship which exists between the States, its citizens, and the Federal Government. Furthermore, we will consider the agencies of the Federal Government and their exercise of jurisdiction and authority over the Waters of the United States.
When one begins to investigate a topic, it is prudent to start at the source, the beginning, so one doesn’t skip over important details which may alter the narrative; therefore altering the outcome. Keeping this in mind, we need to go over four founding documents: the Declaration of Independence, the Articles of Confederation, the Northwest Ordinance, and the present-day Constitution of the United States.
First, within the Declaration, we find this familiar iconic phrase, “In part, we have certain unalienable rights, and among these are life, liberty, and the pursuit of happiness.” It goes without saying that without the ability for a human being to obtain the daily amount of water needed to sustain one’s life this phrase is meaningless. So I ask you, how then does a local, State, or Federal Government entity control such a resource? That answer is to be found in the Preamble of our Constitution, under the phrase “General Welfare.” The problem that has arisen from the ideological concept of “General Welfare” is to what extent does each governing body have authority to control water usage and to what degree over the other governmental bodies.
Secondly, we have our nation’s first Constitution, the Articles of Confederation, which was enforced from 1781-1789, being written in 1777. Nowhere in this document is the five letter word “water” ever addressed. Notably however, two articles deserve consideration in dealing with the water issue. First is Article II, “Each state retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” Folks, under our first Constitution, since water is not mentioned, the matter resides under State Authority.
Additionally, we the citizens and our elected representatives must be made aware of Article XIII, where it is unambiguously stated, “nor shall any alteration at any time hereafter be made to any of them [the Articles]; unless such alteration be agreed to in a Congress of the United States and be afterwards confirmed by the legislators of every State.” For decades, the Congress of the United States has not entertained this provision. Therefore, in passing the Federal Water Pollution Control Act of 1948, as well as the Clean Water Act of 1972, Congress, in my opinion, stole the water resources from the States. Why? I say this, because under Article VI of our present-day Constitution, the actions that took place during the period of 1781-1789 were accepted and acknowledged under the word “engagements,” remembering that the Constitution was written so the common man could understand it.
Third, we have the Northwest Ordinance; on July 13, 1787, Congress passed this document to form a new territorial government designed to promote westward expansion of our infant nation. This program continued through the territory known as the Louisiana Purchase. This resulted in two separate governments, one being territorial and the other under the Union of States, the Confederation. For further information on this subject, one should read Mr. Ron Neilsen’s book entitled The History of Federal Lands in the United States and the Violence of Faction for a more detailed account. Within the Northwest Ordinance (NWO), one Article stands paramount to our discussion here. Article IV of the NWO states, in part, “The navigable waterways leading to the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well as to the inhabitants of said territory as to the citizens of the United States.”
Folks, this is a monumental statement. Why? Because almost 200 years after this declaration about navigable waters, unelected officials within the United States Environmental Protection Agency (EPA) and the Army Corps of Engineers engaged in defining WOTUS, creating a National Rule with compelling interest. This definition would inevitably be changed dozens of times since the enactment of the Clean Water Act in 1972, making it a vague, if not useless, non-defined definition. The Clean Water Act (CWA) exceeded its authority over the States by defining WOTUS under CWA section 502 (7).
Fourth, under the 10th Amendment of our present-day Constitution is the ideological concept of State Sovereignty. The EPA inclusion of all waters regardless of navigational servitude, which is the ability to conduct commerce, violates not only the 10th Amendment, but the Articles of Confederation and the Northwest Ordinance as well. Please remember that our present Constitution, in Article VI, reaffirms the actions of Congress and their validity between 1781-1789. Water is not addressed in our present-day Constitution, therefore the 10th Amendment should reign supreme.
In Part II, we will discuss laws passed by Congress concerning water control authorities.
Readers are welcome to gain additional information by following my two cases:
- Dave Erlanson vs. USFS and BLM, #4:24-CV-00023 BLW.
- David Erlanson Sr. vs. Environment Protection Agency, writ of mandamus to SCOTUS, case number 23-949, in the Ninth Circuit Court of Appeals, case number 22-35894.
As I am a pro se litigant in both actions listed above, any involvement via a pro bono attorney would be much appreciated, as with any comments or factual information. You can contact me through this media outlet.
