VIROQUA - The Viroqua City Council met as a committee of the whole on Wednesday, May 30 for a presentation and discussion about community rights. Paul Cienfuegos of ‘Community Rights’ spoke to council members and almost 50 concerned citizens about the work he does and the history of community rights or local control in the United States.
“Federal and state government, government agencies, the courts, and corporations have all worked together over the course of generations to create the legal building blocks of erosion of local control,” Cienfuegos explained. “The same legal process that is open to them is open to local governments, to enact local ordinances, face the legal challenges, and win some and lose some.”
Cienfuegos explained that the only way to reassert the ability of local municipalities is to start at the local level, where government is closest to the citizens that elect them, and to elect representatives with vision who are not afraid to be sued.
“In just the same way that corporations used the constitution, and federal and state laws and administrative rules to challenge local control, winning some and losing some, and gradually creating legal precedents for the cornerstone arguments of their case for corporate personhood, so too must local governments pursue the same course,” Cienfuegos explained. “Local governments have got to find ways to ensure they have the authority to protect the health, safety and welfare of the local people they represent.”
Cienfuegos has come to the four-state Driftless Region at the behest of local governments and citizens 29 times since 2013, always by invitation.
He reported that many local and county governments are contemplating enactment of a variety of ordinances to regulate things like frac sand mining, livestock facility siting, cell phone tower siting, creation of publicly owned utilities or internet service providers, withdrawal of groundwater for bottling, aerial spraying of herbicides, and more.
Cienfuegos described the creeping problem of growth in the notion of corporate personhood, and contrasted it with the place in the American democracy that the American founding fathers had envisioned for corporations.
“Originally, just after the American Revolution, corporations were not considered to have the rights that people or citizens have,” Cienfuegos explained. “The constitution we have now is actually America’s second constitution which was passed ten years after the original Articles of Confederation and Perpetual Union.”
Cienfuegos explained that the Articles of Confederation were replaced because they were considered to have created a weak federal government, and privileged local control or community rights. Under the Articles of Confederation, citizens were considered the source of all political power, with the government working to represent their interests, and corporations being chartered by the government to work for the greater good of society.
“The current constitution, the Bill of Rights, the constitutional amendments, and various laws all contain rights and protections for citizens that the founding fathers never envisioned being extended to corporations,” Cienfuegos said. “What has happened since, that has reinforced the preferment of property over people, and allowed the erosion of local control, is the gradual legal extension of the rights of citizens to corporations.”
Cienfuegos was quick to say, “corporations don’t need to be the enemy of the people, they just need to occupy the place the founders of our nation envisioned as subordinate to the laws of the government of the people, and agents of the greater common good.” Cienfuegos said, “I’m not a person who is prone to ‘deep state’ conspiracy theories – the history of creeping suppression of local control is a matter of public record and in plain view for any who care to look.”
Cienfuegos explained that the first crack in the wall extending the rights and protections of citizens to corporations or “corporate citzens” came in 1886, in a case Santa Clara v. Southern Pacific Railroad. One of the issues in the case was whether railroads should enjoy the same taxation as citizens.
The court reporter, Bancroft Davis, the former president of Newburgh and New York Railway, wrote the following:
One of the points made and discussed at length in the brief of counsel for defendants in error was that 'corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.' Before argument, Mr. Chief Justice Morrison Waite said: The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.
When Bancroft verified the content of his headnote prior to publication with Justice Waite, he wrote:
I think your mem[orandum] in the California Railroad Tax cases expresses with sufficient accuracy what was said before the argument began. I leave it with you to determine whether anything need be said about it in the report inasmuch as we avoided meeting the constitutional question in the decision.
So the headnote was a reporting by the Court Reporter of the Chief Justice's interpretation of the Justices' opinions. But the issue of applicability of "Equal Protection to any persons" to the railroads was not addressed in the decision of the Court in the case.
Thus, the Supreme Court's actual decision never hinged on the equal protection claims. Nevertheless, the case has been allowed to have clear constitutional consequences, as it has been subsequently taken to affirm the protection of corporations under the Fourteenth Amendment.
Other clauses in the Constitution and Amendments, as well as federal law and administrative code have been used by corporate attorneys to pursue their ‘corporate personhood’ agenda. Most recently, perhaps the best know of these was the Citizens United decision which established corporate money as free speech protected under the Constitution’s First Amendment. This decision opened the floodgates to corporate donations to political candidates.
Cienfuegos explained that states can enact legislation more stringent than federal standards in a variety of cases, but they have to meet the federal minimum or more. He argued that local governments should have the same authority to set standards more stringent than the state’s as long as they meet the state minimum.
“Wisconsin is a Dillon’s Rule state,” Cienfuegos explained. “What that means is that local government is viewed as the ‘child’ of state government, and exists only insofar as the state government allows it.”
Dillon’s Rule is the cornerstone of American municipal law. Under Dillon's Rule, a municipal government has authority to act only when power is expressly granted via statute; when power is implied via statute; and when it is neither granted nor implied, but is otherwise implied as essential.
The Dillon rule is used in interpreting state law when there is a question of whether or not a local government has a certain power. Judge Forest Dillon, the Chief Justice of the Iowa Supreme Court expounded this famous rule, which was quickly adopted by state supreme courts around the nation, including Wisconsin.
Regulation as permission
Cienfuegos made the point that, going back to the adoption of the Interstate Commerce Act (ICA) in 1887, at the behest of an assembly of railroad corporation owners and attorneys, regulation of commerce has always been presented to average, sometimes irate, citizens as protection of their interests. In fact, Cienfuegos argues, the American people have been sold a bill of goods.
“Regulations and permits ‘allow’ and ‘permit,’” Cienfuegos explained. “What that means is that regulations essentially define the level of safe harm, and local governments can’t prohibit what is ‘regulated and permitted’ by the state.”
When the railroad barons succeded in fostering the enactment of ICA, what they actually succeeded in, no matter how it was sold to citizens in the states and municipalities engaged in local efforts to counter their sometimes predatory activities, was elimination of state and local barriers to their legislative and judicial agenda.
Health and safety
Cienfuegos explained that in the current climate of regulation of local control, one of the only mechanisms left to local governments like Wisconsin is to craft ordinances designed to protect the ‘health, safety and welfare’ of local people. More often than not, this is only made permissible when there is already a crisis versus proactively. An example of this would be Kewaunee County, where 60 percent of private well water is undrinkable due to eColi contamination. In many cases, the water literally runs brown out of the taps.
This loophole in the general prohibition on local government’s creating more stringent livestock facility siting standards than the state’s standards is contained in Wisconsin Statute 93.90, Section 3a, 9a,b., and reads as follows: The proposed new or expanded livestock facility will have fewer than 500 animal units but will exceed a size threshold for requiring a special exception or conditional use permit that was incorporated into the political subdivision's ordinances before July 19, 2003, and the proposed new or expanded livestock facility violates a requirement that is more stringent than the state standards under sub. (2) (a) if the political subdivision does all of the following:
a. Adopts the requirement by ordinance before the applicant files the application for approval.
b. Bases the requirement on reasonable and scientifically defensible findings of fact, adopted by the political subdivision, that clearly show that the requirement is necessary to protect public health or safety.
In order for the standards to survive legal challenge, they must be adopted prior to the livestock facility applying for and obtaining a permit from the state, be based in scientific fact and data, and not be in conflict with the state rule itself.
For this reason, many of the kinds of ordinances that have been created by local governments focus on either additional regulations of permitted CAFOs, or on “protecting health and safety.”
Cienfuegos explained that what his group does is to assist local governments to pass local ordinances that help them to protect local health and safety.
“There have been more than 200 of these type of ordinances passed in nine states in mostly rural communities,” Cienfuegos explained. “Of those 200 ordinances, only five have been challenged.”
Cienfuegos pointed out that every local community rights ordinance that is enacted into law helps to establish new legal precedents, and to rein in state governments prohibition of local communities to protect local health and safety. The central point that community rights proponents make is that state laws, like federal laws, should merely reflect the minimum standards, leaving local communities free to set higher standards.
“Article One of the Wisconsin State Constitution states that people have the right to life, liberty and the pursuit of happiness,” Cienfuegos points out. “What that means is that the role of government is to protect these right, not to limit them.”
Cienfuegos believes that in the Driftless Region, there are many communities such as Viroqua, Holmen/Onalaska, and Decorah that have potential to enact community rights legislation.
“Decorah, Iowa was the first community in the Driftless Region to invite me to speak,” Cienfuegos said. “The citizens of Decorah organized to put a referendum on the ballot to replace Alliant Energy and create a publicly-owned utility. Alliant spent $160,000 to defeat the referendum - $58 per vote. The referendum was defeated by just three votes.”
Cienfuegos thinks that the City Council, which stayed on the sidelines and didn’t take an official position on the referendum, may have become frustrated enough to take the step of enacting an ordinance, which would support fair elections in their community by banning corporate money in elections.
In Holmen and Onalaska, where unsafe levels of nitrates have been found in many private wells, the LaCrosse County Public Health Department has convened a ‘Nitrate Task Force.’ The Task Force is tasked with taking steps to identify the source(s) of nitrate pollution and making recommendations to the La Crosse County Board and Holland Township about potential legislative actions designed to protect local health and safety.
The situation there was allowed to go on for a decade, where the Wisconsin Department of Natural Resources (WDNR) was in possession of results from monitoring wells around Babcock Genetics which showed unsafe levels of nitrates. Under state law WDNR was not obligated to alert the county or township of these results. The unsafe nitrate levels only came to light when the Environmental Protection Agency intervened in the state’s administration of the Clean Water Act after the pollution situation in Kewaunee came to light and the state was judged to be “not competent” to administer the CWA in the state.
In Viroqua, their recent experience with fending off Premium Iowa Pork from opening a large hog slaughtering facility, projected to bring more CAFOs into the area in a 50-mile radius of Viroqua, has got that community talking about community rights.
At least three Vernon County Townships – Whitestown, Webster and Harmony – have recently enacted moratoriums on approval of new large livestock facilities for a year while a committee studies the situation, gathers citizen input, and makes recommendations to the town board.
In Crawford County, the Town of Clayton has signed on to a statewide call for a CAFO moratorium.
Newly elected Viroqua Mayor Karen Mischel was very happy to see that the City was open to having a forum on the topic of local control, and heartened to see that the suggestion came from City Hall.
“I thought, why not be one of the first municipalities to make some positive changes, and try to keep it local,” Mischel said. “Exploring this avenue is a way for us to try to protect what we have.”
Tanja Birke, newly elected to the Viroqua City Council from Ward Four, was instrumental in bringing Cienfuegos to the city.
“I asked Paul to speak because the council, prior to my election, had taken up and passed a ‘home rule’ resolution,” Birke said. “Six months ago, there was also a lot of discussion about lack of local control in decisions about siting of cell phone towers as well.”
Birke said that because of those two situations, inviting Cienfuegos to speak to the Council and interested citizens seemed like the logical next step.
“The meeting was better attended than anticipated,” Birke said. “Most members of the Council were there, the conversation was enlightening and exciting, and many have expressed gratitude to the Council for having the meeting.”
Birke said the next step for the City is to identify what their common values are, and ultimately to pass an ordinance that asserts local authority over the quality of life in the City, and protects the things that are important such as clean air and water, healthy soil, democratic rights, and more.
Jeff Gohlke, City Council member representing Ward Nine, said that he was pleased with the tournout at the event, and thought that the next steps depended on whether citizens are upset enough about loss of local control to take action.
“Overall the struggle that Cienfuegos describes was a long time in the making, and will probably take a long time to fix,” Gohlke said. “We need to take a balanced approach and expect to be on the path for the long haul.”