Susan Combs Texas Czar

Liberty Matters | Dan Byfield | December 16, 2011

State Comptroller Susan Combs will soon become our state’s first self-appointed Czar.

During the last Special Session in June of 2011, Comptroller Combs had state Representative Warren Chisum from Pampa, Texas add Amendment No. 119 to SB 1.

Amendment No. 119 was very curious because during the waning hours of the Special Session, the Comptroller of Public Accounts was specifically designated as having the authority to “apply for and hold a federal permit issued in connection with a habitat conservation plan or candidate conservation plan developed by the comptroller…”  

This now means whoever becomes our state Comptroller, including Susan Combs, will have the power to act as proponent, creator, holder, arbiter, fee-setter and implementer of any or all federal habitat conservation plans in the state of Texas.  

Having this type of power smacks of what happened in Washington, D.C. when our current president took office and by fiat appointed dozens of czars to implement his radical agenda.  Why in the world did our state Legislature give Susan Combs this power?  She asked for it!  But, why?

This all came into sharp focus over one issue American Stewards of Liberty (ASL) finds itself right in the middle of in West Texas.  The U.S. Fish and Wildlife issued a proposed rule on December 14, 2010 to designate the Dunes Sagebrush Lizard (DSL) as endangered under the Endangered Species Act.  In May of this year, ASL was contacted by the oil and gas industry in West Texas to help fight the listing through coordination.

We quickly came to realize there were two distinct factions within the oil and gas industry falling on opposite sides concerning the proposed listing.  There were those who ascribe to the “pay-to-play” concept where certain companies are willing to play the political game of paying the federal government the extortion demanded rather than risk a fine or waiting years to obtain a legal permit.  And, there are those producers who are willing to take a stand and fight.

It was those producers who decided to stand and fight that came to us and asked if we could help the ranchers, counties and other local government entities fight the listing using our coordination strategy.  We organized four counties in Texas and four in New Mexico, along with the Sandhills Soil and Water District and the City of Monahans to fight for the property rights of their citizens and landowners.  As an aside, the Permian Basin provides 20 percent of our nation’s domestic oil and gas production.  This issue is critical to our nation’s economic future.

We’ve now had two coordination meetings in Chaves and Lea Counties in New Mexico and one private meeting in Midland, Texas with both Dan Ashe, Director of the U.S. Fish and Wildlife Service and Dr. Benjamin Tuggle, the Southwest Regional Director of Fish and Wildlife.  Lea County’s coordination meeting was with the Bureau of Land Management and Chaves’ was with Mr. Wallie Murphy from the SW Regional office out of Albuquerque.  

Because the Endangered Species Act is very specific during the proposed listing process, we had to totally concentrate on the “best scientific and commercial data available” to not only discredit the federal government’s science, but come up with the “best” scientific and commercial data” available to prove the lizard is not endangered and does not deserve to be listed as endangered.

So, while all this was going on, Combs was behind the scenes working with the federal government and multiple “stakeholders” to come up with a state-wide initiative known as the Texas Conservation Plan to deal with the DSL listing and others that are on the horizon.

On Thursday, October 6, 2011, the U.S. Fish and Wildlife published Comb’s Texas Conservation Plan in the Federal Register on page 62087 referred to as Permit number T-55322A-0, CFR Doc. # 2011-25759 asking for public comments.  In the mean time, she is set to publish her own state-wide rules under the legislation passed under SB 1 last June and it’s these state rules that will give her czar-like powers in the state of Texas.

When read carefully, it’s hard to understand who the rules were written for and why because they appear to facilitate the federal government’s agenda to gain control over as much private property as possible.  It appears that Combs doesn’t think we can fight the Endangered Species Act and her Texas Conservation Plan is “our” solution. 

According to her own rules, the Comptroller can cause a habitat plan to be instigated if “a species of plant or wildlife that the comptroller has learned has been or may be listed by a Federal species agency as threatened or endangered pursuant to the ESA where such action may have an adverse impact on economic activity in the state.”

The state statute and her proposed rules give the Comptroller power to:

1) Develop and submit an application for a federal permit;
2) Create and coordinate workgroups comprised of “stakeholders” like property owners, cities, counties, state agencies, federal agencies, universities, individuals, associations, and municipal districts.  Many in these stakeholder groups are unelected individuals who are like the fox guarding the henhouse because they are affiliated with environmental groups who are very supportive of these types of conservation plans;
3) Create a funding mechanism to charge fees to participants of a conservation plan in Texas;
4) Implement a permit or plan;
5) Take any “reasonable and necessary” actions to obtain a federal permit;
6) Coordinate and perform actions in compliance with the terms of the permit and plan;
7) Enter into an interagency contract, MOU, or other appropriate agreement to be performed by the Comptroller;
8) Enforce compliance of all parties with this Act; and
9) Terminate any party to an agreement for non-compliance (at the sole discretion of the Comptroller)

One of the most unbelievable aspects of these rules is the Comptroller’s ability to assess fees associated with any plan developed.  Combs and the proponents of this scheme will say it’s all “voluntary” and fees can only be assessed if the “stakeholders” develop the fee structure during the formation of the plan.  But, the rules go onto say “The Plan may allow the comptroller or designated permit holder the flexibility to adjust the fees as necessary.”  

So, not only does the comptroller have the ability to formulate a plan, she has the ability to adjust the fees at her sole discretion.  She can terminate anyone from the plan for non-compliance, charge and adjust fees, decide if a habitat conservation plan or a candidate conservation plan is best for you and your local community, and she can instigate legal remedies if she determines someone is in non-compliance.

In fact, legal remedies in her proposed rules include notifying “the Attorney General’s Office, the Comptroller’s Criminal Investigation Division, the Comptroller’s Internal Audit Division, the State Auditor’s office or a federal species agency regarding issues related to non-compliance.”

For years, the citizens of the great State of Texas have stood firm against the federal government and their attempt to regulate private property through the Endangered Species Act.  For some fights, the federal government has won, but for many, we’ve stood, fought and beat back the government’s attempt to control millions of acres of private property.  

But, when a state-wide elected officer starts negotiating and appears to yield to the federal government by devising the Texas Conservation Plan, you have to wonder why.  She has always claimed to be a proponent of private property, but the private property owners I know didn’t ask her for this plan.

Many landowners in West Texas feel like Combs has thrown in the towel before ever putting up a good old Texas fight.  Unfortunately, in some circles, she’s been called “Surrender Susan” for the work she’s done to create this Plan.  Perhaps she believes she is saving our state from “big” government, but all she’s doing is playing into their hands and allowing their agenda to grow and spread in our state.  She’s now invited the whole camel inside the tent and I’m afraid there’s no getting rid of it.

Under her rules, the Comptroller appears to try and control the circumstances surrounding these habitat conservation plans, but she can’t control the federal government.  If she thinks she can do that, she’s playing with fire.  Someone will get burned and it will more than likely be the individual landowners who will fall under one of her plans.

So, what’s the purpose of this?  It appears to be about who is going to control private property when an endangered species is present.  Combs has now placed herself in a position of the elite who think they know what’s best for Texas and what’s best for private property and landowners.  

Rather than fighting the good fight, she is hastening the demise of many landowners’ rights in Texas.  She will claim these plans are “voluntary,” but read the fine print.  Yes, as a landowner you can agree to participate or not.  If you agree to participate, she alone can determine the amount of fee you will pay to participate.  If you don’t like the rules, the fees, or the plans, she can terminate your agreement.   

To nudge those who don’t wish to participate into one of these plans, proponents will say: “then, you’re on your own and good luck obtaining a federal permit.  That will take you 18 months to two years.”  These “voluntary” plans make you believe you have to participate or else you’re doomed and it’s the federal government who’s to blame. 

Remember, each plan must be approved by the federal government.  But, to obtain that approval, the federal government has the sole discretion as to how many private acres will be needed for the permit.  Because there are over 100 species about to be listed as endangered in the state of Texas, the federal government will now have a state structure in place that will help create plans to encompass massive amounts of private acres to satisfy their greed for power and control.  And, you won’t have a say unless you’re one of the “stakeholders” appointed by the Comptroller.

This is where the term “voluntary” no longer applies.  These conservation plans will encompass thousands, if not millions of private acres in order for the federal government to be satisfied the Endangered Species Act is being complied with.  

Each plan will determine how many acres will be needed to “protect” an endangered species.  The plans will come with maps that determine who will be required to participate.  Participation includes a term called “mitigation.”  Mitigation is a fancy term for extortion to the government for the “benefit” of using their plan should you have the misfortune of having endangered species.  Mitigation comes in several forms – a per acre fee, set-aside acres of your own land, or purchase of other acres (normally 3 to 1).

If your land falls within one of these plan maps, your land has just become encumbered, but do you think they will pay you for what amounts to inverse condemnation?  Of course not!  You have to pay them.  Remember, this is a federal plan and the federal government has figured out how to take private property without paying just compensation as required by the Fifth Amendment to the Constitution.  Why would Combs, who supports private property, enable this type of theft by our federal government?  

The federal government is basically a coward that bullies local governments and citizens into compliance.  Good examples include the City of Austin and Travis County, Round Rock and Williamson County, Bastrop County, and now Comal County where they’ve all created “stakeholder” conservation plans because their elected officials would not stand up to the federal thugs.  

Because they all went along with the federal government, they are all now regulated by them.  I guess Combs thinks she can out maneuver and entice the feds to be her friend, but that’s precisely what they want her to think.  She’s played right into their hands and it’s the landowners who are going to pay the price.  Why do we in Texas wish to make the federal government’s ability to control private property easier?

And why in Texas would we want someone to have powers that resemble those of a Czar?