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March 8, 2006 Bureau of Land Management Upper Missouri River Breaks Monument Manager 920 NE Main Street P.O. Box 1160 Lewistown, MT 59457 Re: Comment, Missouri Breaks Dear Sirs: This is comment upon the UPPER MISSOURI RIVER BREAKS NATIONAL MONUMENT DRAFT RESOURCE MANAGEMENT PLAN and ENVIRONMENTAL IMPACT STATEMENT of SEPTEMBER 2005. The Draft Resource Management Plan (Plan) and Environmental Impact Statement Of September 2005 (EIS) for the Upper Missouri River Breaks National Monument ("monument") are silent about the impact of laws and regulations available to govern the "monument" insofar as any such laws and regulations might be interpreted to allow infringement on the rights of Montana citizens to keep and bear arms - to possess and use firearms in the designated "monument" area. N.B., The Montana Shooting Sports Association (MSSA) is currently a plaintiff in a lawsuit in federal courts, of which the Bureau of Land Management (BLM ) is the defendant, because BLM arbitrarily published a notice in the Federal Register prohibiting the discharge of firearms in and on about 40 sections of public land in the south half of Phillips County, Montana. MSSA asserts that BLM published this notice, improperly imposing possible fines and jail time on MSSA members, without proper authority and without following procedures required under federal laws and regulations. Given this history by BLM, and given the absence of any dialog about the right to keep and bear arms of Montana citizens in the Plan and EIS, we must presume that BLM leaves the door open to current or future attempts to restrict the right to keep and bear arms in the public lands covered by the Plan and EIS as the "monument". Because this option is left open by BLM, we challenge the Plan and EIS. We assert that the Plan and EIS are impermissibly vague and incomplete. We insist that BLM either rewrite the Plan and EIS, including new comment period, to address these issues, or that BLM rewrite the Plan and EIS to declare that neither the Plan, the EIS, nor any supporting laws or regulations convey any authority by BLM to infringe on the right to keep and bear arms that the citizens of Montana have reserved to themselves in the federal and state constitutions. Listed below are numbered items that MSSA insists that BLM must address before either the Plan or the EIS may be considered complete or adequate. Any administrative authority over the "monument" that allows restriction of or actually restricts the prerogative of Montana citizens to shoot on public land is in conflict with the Second Amendment to the United States Constitution. It is a principle of law that a grant of right includes the essentials. This principle is articulated in Montana law at 1-3-213, M.C.A. "Grant includes essentials. One who grants a thing is presumed to grant also whatever is essential to its use." It is axiomatic that the right to keep and bear arms, which the people secured to themselves from government interference in both the Second Amendment to the United States constitution, and Article II, Section 12 of the Montana Constitution, necessarily includes the right to carry and to shoot firearms. There is no question but what the Montana Constitution secures an individual and "personal" right in this respect. So, there is no question that the people of Montana have secured to themselves an individual right to carry and use firearms, that Congress has approved this right (see the discussion later about the Compact with the United States), and that this right is intended to extend to use on public lands. That Congress has the authority to interdict this right with a "monument" designation over public lands is challenged and denied, as is the theory that Congress has the authority to confer such power to BLM. It may be supposed that Congress seeks power to possess and establish such a "monument" as that intended in the Missouri Breaks from the Commerce Clause, that enumerated power in the United States Constitution, in Article I, Section 8, that gives Congress the power to "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes". However, there is nothing associated with the proposed "monument" that affects commerce among the several states. The theory that Congress has the power to possess vast tracts of undeveloped public land, and to declare and regulate any such tracts separately as a "monument", under the guise of regulating interstate commerce, is challenged and denied. Any administrative authority over the Monument that allows restriction of or actually restricts the prerogative of Montana citizens to shoot on public land is in conflict with Article II, Section 12 of the Montana Constitution. Congress may only assert authority that is drawn from empowerment found in the United States Constitution. Especially, Congress is specifically prohibited by the Ninth and Tenth Amendments from usurping rights that belong to individual people and to states. One ramification of this is that if a power assumed by Congress is in conflict with a right people have reserved to themselves in a state constitution, and the power assumed by Congress is not properly derived from the United States Constitution, then any laws enacted by Congress pursuant to that erroneously assumed power must yield to the constitutionally-protected right people have reserved to themselves in a state constitution. Thus, since the assumed power of Congress to possess, designate and regulate what it calls a "monument" is not founded in clear constitutional authority, and since the people have clearly reserved to themselves, individually, the right to possess and use firearms, any attempt to prohibit Montana citizens from using firearms on public lands designated by Congress as a "monument" must fail. That Congress has the power to abridge rights the people of Montana have reserved to themselves in the Montana Constitution, with an asserted "monument" designation, and any regulations developed thereunder, is challenged, and denied. Any administrative authority over the proposed "monument" that allows restriction of or actually restricts the prerogative of Montana citizens to hunt on public land is in conflict with the right to hunt and fish in the Montana Constitution. All of the assertions made in 1 and 2 above are repeated here in respect to the right to hunt and fish that the people of Montana have reserved to themselves in Article IX, Section 7 of the Montana Constitution. Any administrative authority over the "monument" that allows restriction of or actually restricts the prerogative of Montana citizens to shoot on public land is in conflict with the Compact with the United States (Compact), and thereby offends the implications for our right to keep and bear arms. In 1889, Congress, acting as agent for the several states, approved the Compact, which included a guarantee at that time of the benefit of the provisions of the federal constitution to the people of Montana, and also approved what is now Article II, Section 12 of the Montana Constitution, as they were both understood and accepted at that time. At that time, the right to keep and bear arms expressed in both the U.S. and Montana Constitutions was viewed differently than it might be today, but any change of view notwithstanding, there has been no amendment of the Compact, and no contract may be changed without the consent of the parties thereto. The Compact specifically says that it remains "in full force and effect until revoked by the consent of the United States and the people of Montana." Further, an essential element of the Compact is Ordinance 1, which says, "That the ordinances in this article shall be irrevocable without the consent of the United States and the people of said state of Montana." Neither Congress nor the people of Montana have adopted any amendments to either the Compact or Ordinance 1, much less have both Congress and Montana done so. The Compact and Ordinance 1, by contract law, freeze in time both the United States Constitution, the Second Amendment thereof, and the Montana Constitution, Article II, Section 12, both of which are unaltered since adoption of the compact and Ordinance 1 in 1889, as both the Second Amendment and Article II, Section 12 were viewed, interpreted, understood and effectuated in 1889. There is no evidence whatsoever that in 1889 either the people of Montana expected, or the Congress intended, that Congress would seek to prohibit or regulate the use of firearms by Montana Citizens on public lands in Montana. Therefore, any effort now for Congress to assert authority, via or as a part of any "monument" designation or subsquent BLM regulation, to prohibit or regulate the prerogative of Montana citizens to possess or use firearms, or to delegate any authority to federal agencies to do so, is in clear violation of the Compact. Any such assumed power by Congress to violate the Compact is challenged and denied. Congress has no power to possess and regulate vast tracts of lands in the West, including by presidential decree or otherwise, under a "monument" designation. Article I, Section 8 of the United States Constitution lists some of the "enumerated powers" of Congress. Included there is a stipulation for Congress to exercise "authority over all places purchased by the consent of the legislature of the states in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings ." There is nothing in this provision that appears to authorize "monuments", especially those that include no monument buildings, no monument statues, but only vast tracts of undeveloped land. It may be supposed that Congress seeks power to possess and establish such a "monument" as that intended in the Missouri Breaks from the Commerce Clause, that enumerated power in the United States Constitution, Article I, Section 8, that gives Congress the power "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." However, there is nothing associated with the proposed "monument" that affects commerce among the several states. The public lands that are not required for the specifically enumerated purposes iterated in Article I, Section 8 of the United States Constitution are held in trust by Congress for the people of the United States, and ought to long since have been transferred to individual citizens through mechanisms such as homesteads. The theory that Congress has the power to possess vast tracts of undeveloped public land, and to declare and regulate any such tracts separately as a "monument", under the guise of regulating interstate commerce, is challenged and denied. Prohibiting the exercise of a constitutional right on the theory that people not so prevented will abuse the right is called "prior restraint." The case law about prior restraint is most well developed concerning exercise of First Amendment rights. For example, it is sometimes said, "You can't shout 'Fire' in a crowded theater." This statement is flat wrong. Anyone can shout "fire" in a crowded theater, but may also be punished afterwards for abuse of his or her First Amendment freedom of speech that injures others. Said differently, it is not an acceptable abridgment of the freedom of speech to put duct tape over the mouths of every theater-goer, operating on the assumption that if duct tape is not applied and maintained to control any possible outbursts somebody will surely abuse their rights and shout "fire." The same rationale clearly applies to abridgment of rights under the Second Amendment to the U.S. Constitution, and Article II, Section 12 of the Montana Constitution. To prevent a citizen from exercising his or her right to keep and bear arms in advance with some sort of general prohibition is as offensive to the concept of a free society as the same tactic would be if applied to First Amendment activities. Therefore, any law or regulation that would allow the prevention of use of firearms in the "monument" would be an unacceptable prior restraint on a constitutionally protected right, and any such laws are challenged and denied. We do not find any, or at least adequate, representations in the Plan or EIS about what authority, ability or long-term intentions BLM will have about introduction, reintroduction or management of large predators, such as lions, bears, and wolves. We are especially concerned that others could be silently planning to introduce wolves into the "monument" at some future date, allowing them to propagate and spread without control. We are concerned that there will be plans to introduce bison into the "monument", the bison will propagate out of control, and the solution proposed will be to introduce wolves to control bison. The fact that the Plan and EIS appear to be silent about this issue is beyond worrisome. The impact of wolf introduction has become a highly controversial subject. If there are plans associated with the "monument" to either introduce wolves there, or to leave the door open to wolf introduction later, these plans must be detailed in the Plan, the EIS, and any Alternatives offered. Any introduction of currently not indigenous species such as wolves or bison must require a comprehensive EIS. Failure to address this issue causes the Plan and EIS to be fatally flawed. We object. The Plan and EIS do not specify whether or not the "monument" will be subject to 36CFR2.4 or if there will be any exceptions in 36CFR7. We find that this omission causes the Plan and EIS to be fatally flawed. We object and insist on advance notice and opportunity to comment upon any intent to make 36CFR2.4 applicable to the "monument", or to bring the "monument" under application of 36CFR2.4. In summary, not addressing these issues in the Plan and EIS causes the Plan and EIS for the "monument" to be impermissibly vague, flawed and inadequate. We challenge both the laws that allow designation of the Missouri River Breaks area as a "monument", and any regulations adopted pursuant to those laws which could allow infringement on the right to keep and bear arms of the citizens of Montana. Please respond to these concerns in a timely manner. Sincerely yours,       Gary Marbut President