June 17, 2015

Water Rights and the Data Quality Act

Editor’s Note: The following is an excerpt from “Visiting With Lawrence Kogan, Esq: An Initial Consultation.” The complete hyperlinked article is attached here.

The Water Compact (Treaty) entered into by the Confederated Salish and Kootenai Tribes (CSKT), the State of Montana, and the U.S. Department of Interior is a complex first-of-its-kind agreement that will seriously impair citizen rights. The Compact also will reshape, for the worse, future water compacts currently being contemplated by other U.S. states and regions (including in Alaska, Arizona, California, Hawaii, Oklahoma, the Midwest and the East).


Science used in Compact not evidence based

Just like they are employing a new form of property rights, they are employing a new form of science. This new form of science is not based on empirical science from the Enlightenment era. It is not based on observation. It is not based on causal evidence of harm. It is not based on foreseeable harm. It’s based on precaution. The ‘precautionary principle’ is a European legal concept that is at the fulcrum – i.e., the basis of the sustainable development socialism doctrine that we are talking about. And when they do that, essentially a new lower threshold/standard of evidence is permitted, which is correlation; it is no longer causation. We are no longer looking at the risks that certain activities pose upon the wildlife. Rather, we are looking at the hazards, the intrinsic hazards of fishing in the abstract. We are looking at the intrinsic hazards of hunting in the abstract, without any evidence of the way the hunting is done, without looking at how the habitat is affected by your activities. So one thing we are looking closely at are the science studies that served as the basis for the Compact, and those science studies, unfortunately, do not show the causal evidence. The record doesn’t even show that the science studies themselves were peer-reviewed properly.

This brings up another Federal statute, the Information Quality Act with which these studies failed to comply. So when we roll all of this together, the facts reveal that science evidence has been reduced under this new paradigm and doesn’t require the Federal agencies to prove anything. They can just cite the possibility of something happening based on correlation not on causation. The fact that a reduced threshold of evidence now governs will allow the agencies to regulate more frequently and strictly, and will also change the burden of proof. The agency no longer has to prove anything. It is you, the hunter, the fisherman and the economic actor that has to prove no (zero) risk. So with that, I leave you with a summary of the approach that we have to offer.”


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