Todd Macfarlane is running for Millard County Commission. Todd is a rancher, writer, attorney and entrepreneur, and has lived in Millard County for approximately 15 years. He and his family own and operate the Turkey Track Ranch near Kanosh. (If you want to know more about Todd, SEE Todd Macfarlane in a Nutshell and/or The Whole Story; If you want to know why Macfarlanes moved to Millard County, SEE Why We Moved to Millard County.
But WHY is Todd running for Millard County Commission?
According to Todd, if he didn’t think there were serious accountability issues in Millard County Government, at a fundamental level — that no one else seems to be willing to address and do anything about — he wouldn’t be running for office. These issues relate primarily to transparency, even-handedness, due process, property rights, and fiscal responsibility.
But cutting right to the chase, after local attorney Jim Slavens was killed in a car accident in 2012, in an effort to help out as an attorney, Todd agreed to step in and take over 4-5 of Slavens’ pending cases — primarily including federal civil rights cases. At least three of those cases were against Millard County for civil rights and due process violations. Prior to that, Todd had never handled a civil rights case, anywhere, and was completely oblivious to what was going on in that aspect of Millard County government. But that situation gave Todd new and unique opportunities to see the ugly underbelly of Millard County government, including policies, practices, and plain old good ol’ boy politics — stuff that most people never have an opportunity to see, and probably aren’t even aware of.
TRANSPARENCY. The public policy of the State of Utah is that all government operations are supposed to be conducted openly and transparently. Unfortunately, Millard County’s record for transparency is quite bleak. Millard County government routinely violates the provisions and requirements of the Utah Open & Public Meetings Act, and ignores notice and transparency requirements. As a result, there is an entire side of the Millard County Government equation that most people are completely unaware of, and our elected officials don’t want the public to know anything about.
But once Todd’s eyes were opened, and he became aware of what was really going on, he has now had multiple opportunities to observe that side of the equation ever since then. As it turns out, part of that equation is that Millard County also has a lengthy history of civil rights and due process violations. In 2008 Millard County had a civil rights violation case go all the way to the U.S. Supreme Court. According to Todd, however, Millard County officials don’t really seem to care, and don’t seem to learn much from their mistakes. In fact, they act as if they are entitled to apply double standards — as if the law doesn’t apply to them. Consequently, they just keep doing the same thing over and over again, particularly when it comes to transparency and Due Process violations. This condition is known as “deliberate indifference” — a deliberate lack of caring about applicable constitutional standards and requirements. And the vast majority of people are completely in the dark about what is going on.
DUE PROCESS is the Golden Rule of Principled Government. It is a universal concept/process/procedure applicable to many governmental actions. Due Process serves two basic goals. One is to produce, through the use of fair procedures, more accurate results: to prevent the wrongful deprivation of protected interests, including life, liberty, and property interests. The other goal is to treat people fairly, give them their “due” and help people feel that the government has treated them fairly by listening to their side of the story. Due Process is essentially a guarantee of basic, fundamental fairness, including even-handedness and a level playing field. Among other things, procedural due process requires fair and reasonable notice and a meaningful opportunity to be heard by an impartial tribunal before action is taken that impacts any kind of protected interest (life, liberty & property interests — and property interests is a concept that covers a broad spectrum of interests), and a decision supported by a legitimate basis, including substantial evidence, etc. The U.S. Supreme Court has stated that when protected interests are at issue, actual (personal) notice is required, as opposed to simply posting a public agenda. In general, the more important the individual right in question, the more process that must be afforded. No one can be deprived of their life, for example, without the rigorous protections of a criminal trial and special determinations about aggravating factors justifying death. On the other hand, suspension of a driver’s license may occur without quite the same level of protection.
Any county decision or action that impacts life, liberty or property interests requires due process. Unfortunately, Millard County has a long-established habit of routinely violating due process in a variety of ways, leaving people feeling like they haven’t been heard, and haven’t been treated fairly. As one example of how this works, after Millard County recently accepted applications for a contract to prepare a county-wide Resource Management Plan, and awarded the contract, it didn’t bother to give other applicants notice of the decision that had been made, or their right of appeal. When one of the applicants sought to appeal the decision based on the county’s failure to follow its procurement policy, the county then attempted to claim that it was too late to appeal, even though it had never given notice of the decision. And the county also attempted to claim that it was not obligated to follow it’s own policies and ordinances — the law. Even more recently, in land-use regulation decisions, the county repeatedly failed to provide neighboring property owners who’s property interests and uses could be jeopardized by the county’s decisions with any notice or opportunity to be heard regarding the pending decisions. Substantive due process requires that there must be at least a reasonable and rational basis for all decisions and actions (rather than arbitrary and capricious), and often that there must be specific findings of the grounds in support of actions and decisions. That is the law. Under substantive due process scrutiny, in Todd’s view, both the new Millard County Land-use Ordinance(s) and the Millard County Purchase Policy are so vague, ambiguous and fundamentally lacking that it is highly doubtful that they would survive a good constitutional challenge in litigation. In a recent case, Sessions v. Dimaya, he U.S. Supreme Court lowered the boom on such vague, ambiguous and imprecise laws See Gorsuch Delivers the Hammer on Imprecise Legislation. Yet, even though county leaders know that there are serious problems with these ordinances, they have done nothing to correct them. The record speaks for itself.
Although due process violations are a regular occurrence, in the hierarchy of protected interests, it is not as often that the county engages in actions that deliberately deprive Life without due process, but even that may happen. In 2012, a Millard County sheriff deputy shot and killed Corey Kanosh, an unarmed Native American man. The deputy claimed that despite the fact that Corey was unarmed, he was still afraid for his life, so he claimed to be justified. But that isn’t the whole story. Having created the circumstances that jeopardized Corey’s life, the Millard County Sheriff’s Department was under an affirmative constitutional obligation to undertake reasonable measures to save his life. Although they were under a constitutional obligation to provide medical care, however, the question is, what, if any, attempt did they make to save Corey’s life? Did they allow first responders to treat him, or did they insure that he would die by failing and refusing to provide any medical attention, and refusing to allow first responders to treat him, or even look at him until they were certain that he was dead? Was Corey Kanosh afforded Due Process in the conscious deprival of his life?
PROPERTY RIGHTS. Todd has also witnessed and written extensively about the challenges with Millard County land-use ordinances and administration, including how the unreasonable, boilerplate, one-size-fits-all ordinances were adopted with little, if any, public input, and little, if any, understanding by the county commissioners, and the challenges of balancing property rights and economic development in Millard County. SEE the latest The Current Status of Property Rights in Millard County — the Struggle Continues and/or Due Process & Equal Protection in Millard The County — a Case Study.
Fundamental property rights are based on the concept that a person should have an inherent, inalienable right to use his/her property as he/she sees fit, as long as such use does not injure or directly interfere with someone else’s corresponding right to use their own property. But according to the Millard County Land Use Ordinance, “It shall be unlawful . . . to engage in any . . . use . . . or activity of any nature upon the land and improvements without the required land use application approvals and building permits.
How does this square with the following fundamental principles:
“All men have the inherent and inalienable right to acquire, possess, [use, enjoy] and protect property,” and “The function of government is not to grant rights, but to protect the unalienable, God-given rights of life, liberty, property, and the pursuit of happiness.”
The thing to understand about Millard County Land-use ordinances is that they only apply to property outside the incorporated municipalities. So the vast majority of Millard County residents are not affected by them, and know little if anything about the ordinances and never have to deal with them.
EVEN-HANDEDNESS. Although many people may not even be aware of this, it has been Todd’s observation that as a routine practice, Millard County governmental decisions and policies are routinely driven by the WHO rather that the what and/or why. The outcome depends entirely on Who is involved. The Who focuses on personality factors and considerations such as one’s last name, who they know, and which side of the tracks (or the county) they live on, rather than sound principle. In Todd’s experience and observation, Millard County routinely engages in the kind of arbitrary and capricious actions found to be unlawful in Sessions vs. Dimaya. See Gorsuch Delivers the Hammer.
A good example of what we are talking about here — and of Millard County’s oppressive land-use regulation involved some of Todd’s acquaintances — an elderly couple — who owned agricultural property, with a home, where they lived, in unincorporated Millard County. Because they wanted one of their children with a large young family to be able to return to Millard County, and enjoy the use of their beautiful, large, three-story home, they wanted to build a smaller one-level home on their property that would be better suited to their stage of life. They sought the necessary approvals and building permits to construct a new home under Millard County’s applicable zoning and land-use ordinance. But they got a total run-around for over six months, with a myriad of obstacles. Eventually, after jumping through endless hoops, but still unable to get the necessary approvals and permit(s), in frustration, the elderly gentleman demanded to know what the problem was. He was told that it was nothing personal — Millard County simply didn’t want them to build a home on their outlying property, because, as a matter of policy, the county wanted everyone “to live in town, where they could be taken care of.” Finally, at wits end, and not knowing what else to do, the elderly gentleman went to a MIlard County Commission meeting to redress his grievances with his elected representatives. When he was done expressing his frustration and complaints, one of the county commissioners, in seeming good faith, said: “stick around, and let me help you out.” After the meeting, the commissioner patronizingly took the gentleman around to visit and talk to all applicable county departments and personnel. By the end of the day, with the county commissioner along to help cut corners and smooth the way, the gentleman had all necessary approvals and permits. Although he was thrilled to finally be able to move forward, he was more disgusted than ever about the realization that the entire process of getting the necessary approvals and permits boiled down to a matter of personality rather than principle — or law. Rather than any applicable principle or policy, it all depended on “who” was doing the asking. This is just one of many such examples. Another good example is The Latest Saga — Millard County Land-use Ordinances Continue to Haunt Property Owners.
Millard County government has a long-standing history — involving everything from property zoning and building permits, to office leases and county contracts — of allowing personality — the WHO — rather than principle — the what and why — to be the tail that wags the dog.
The epitome of this personality vs. principle issue came boiling to a head in 2014 when the corrupt realities of Millard County’s election practices were exposed to the point that, contrary to the conventional narrative, both a district court judge and the Utah Supreme Court expressly found that the results of the Republican primary election involving one of Millard County’s incumbent county commissioners had to be thrown out, based on personality-based election irregularities intended to benefit the incumbent. SEE Utah takes “Highly Flawed Election” to State Supreme Court. Applicable county officials were or should have been well-aware of the applicable principles and state-mandated policies governing the handling of the election and “provisional ballots,” based on applicable Utah state law, not to mention universal principles of fundamental fairness and integrity, but they ignored those fundamental principles in an effort to favor and protect the “insider” personalities involved. Another telling consideration is that one of the single biggest financial contributors to one of the other incumbent county commissioner’s political campaign was the law firm that represented Millard County in a multitude of civil rights litigation. The record speaks for itself.
DOUBLE STANDARDS. As a property rights advocate, based on his experience and observations, Todd has also come to the conclusion that Millard County officials routinely deprive residents of fundamental rights, including due process, equal protection, and property rights. What does that mean? Todd’s recent article about Due Process and Equal Protection in Millard County — a Case Study, is a good example. Or, for a broader perspective regarding double standards, check out his article about the Differences between the Malheur Occupation and a Rainbow Gathering. But, according to Todd, under the double standards that apply in Millard County, depending on who you are, it is not at all uncommon for some people to get special treatment, including expedited approvals and an immediate text or email, from commissioners, right during a meeting, while decisions regarding others who are identically situated drag on forever, and they are left completely in the dark, with no communication at all. According to Todd, in addition to fundamental inequality, based on personality factors and considerations, there is also a long history of retaliation against political adversaries, and those who stand up and speak out. Although he doesn’t go into detail, he claims that if anyone knows this from personal, first-hand experience, he does. Although many people seem to be oblivious to these realities, once again, the record does speak for itself; the pattern should be fairly clear, and has become part of Millard County’s governmental legacy.
CHALLENGING THE NARRATIVE. Todd has often found himself challenging popular, conventional narratives, both locally, and throughout the West. SEE Welcome to the New Normal, Seven Realities Nobody Wants to Talk About and/or A Realistic Assessment of Utah’s Role in the Public Lands Debate. While most people seem to think and just assume that all is well in Millard County, one of Todd’s favorite sayings is “there is virtually always more to the equation than meets the eye.” In 2014, he stood up, challenged the popular, conventional local narratives in Millard County, and saw peoples’ eyes beginning to open. For the past 10 years, Todd has had ongoing and evolving concerns about what he considers to be a fairly narrow, single-dimensional narrative that has typically been presented about the operation of Millard County Government and county policy actions. Recognizing that there are always at least two sides to every story, as much as anyone in the county, Todd has strived to challenge and balance-out the conventional narrative, by telling the other side of the story. To that end, over the past 10 years, in getting proactively involved, Todd has probably written more letters to the editor and submitted more comments to the Millard County Commission and Planning Commission than any two (or three) other people. And he collaborated with a dozen or so other Millard County residents and property owners on The Pahvant Post to challenge the single-dimensional, popular conventional narrative. He has written extensively about some of the thorniest issues that vex Millard County. Why? For the money? What money? For the fame? What fame? He does it because he cares deeply about how we are governed as a people, with little regard for popularity considerations. Again, the record speaks for itself.
At this point, in giving credit where credit is due in Millard County, Todd acknowledges that there have been some improvements in the past three years, but he can also see that despite changes of names, faces and personalities in office, in terms of the fundamental narrative — driven more by personality factors and considerations, rather than by sound principles — not much has really changed. Consequently, he has been persuaded that it might be time to start trying to change that narrative from the inside, rather than just from the outside.
Knowing how some people feel about him, however, and about this particular county commission seat, before finally deciding to run for the position, Todd first approached several people in the Delta area and encouraged them to run. One of them said he might seriously consider doing that down the road sometime — perhaps once some of the problems are dealt with. But none of them were willing to run this year, so Todd decided to throw his own hat in the ring.FUNDAMENTAL PRINCIPLES.
“We believe government properly exists by the consent of the governed and must be restrained from intruding into the freedoms of its citizens. The function of government is not to grant rights, but to protect the unalienable, God-given rights of life, liberty, property, and the pursuit of happiness.“
According to the Utah State Constitution:
All men have the inherent and inalienable right to enjoy and defend their lives and liberties; to acquire, possess and protect property; to worship according to the dictates of their consciences; to assemble peaceably, protest against wrongs, and petition for redress of grievances; to communicate freely their thoughts and opinions. . . No person shall be deprived of life, liberty or property, without due process of law. . . All laws shall have uniform operation . . . [and] Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.
In terms of protecting the unalienable, inherent, God-given individual rights of life, liberty, property, and the pursuit of happiness, how would you rate Millard County government?
Although there is plenty of work to be done in Millard County government, protecting fundamental, inalienable individual rights is Todd’s single highest priority. In Todd’s experience and observation, fundamental rights can only be protected and preserved if they are exercised. The principle of “use it or lose it” always applies. The essential concept of fundamental property rights is that people have a natural, inherent, inalienable right to use their property as they see fit — as long as that use does not directly interfere with someone else’s equal right to use and do the same thing — do as they see fit — on their own property. Where competing interests and uses are in legitimate conflict, those conflicts should generally be resolved in favor of pre-existing uses (first in time, first in right).
As a matter of principle, does Millard County need and deserve a strong champion for fundamental rights, principles and values, including fundamental property rights?
What is the most pressing issue in this year’s county election? In 2014, there is no question that property rights and recently enacted Millard County Land-use Ordinances were the defining issue of the election. It doesn’t look like anything has really changed in that regard. Although Millard County’s land-use ordinances only directly affect property outside the incorporated municipalities, in January 2017 Commissioner Wayne Jackson said that when he had been out campaigning the year before the single biggest issue people wanted to talk about was protection of property rights and the right to use their property. The vast, vast majority of private property in Millard county is owned and operated by agricultural users. At this point, land-use issues, from Magnum Gas to Smithfield Hog Farms increasingly dominate county policy discussions and decisions, as more and more producers are looking for new ways to productively use their property, and new places to relocate and/or expand. And Millard County faces increasing economic development challenges as the local economy stagnates, and the county is forced to seek ways to balance competing interests. Are fundamental rights, including due process, equal protection, as well as property rights, still a pressing issue in Millard County?
Counties are fundamentally different than municipalities, and to a large extent, face significantly different issues. Because the vast majority of Millard County residents live and operate within incorporated municipalities (so they are not affected by county land-use ordinances), and most have never sought to contract or do business with Millard County, the primary ways that most Millard County residents have direct contact with Millard County Government and/or services on a regular basis is only through collection of property taxes, disposal of solid wastes, and use of county roads. Counties, are, by nature, intended to prioritize essential services, like public safety, transportation, solid waste disposal, administration of justice, land-use, and property tax assessment and collection, as opposed to non-essential services, like parks and recreation, cultural programs and events, tourism, and even economic development, etc. Just to be clear, there is nothing wrong with such non-essential programs, but there is something fundamentally wrong with neglecting the protection of fundamental rights and essential services, while prioritizing non-essential programs that only consume rather than produce. It all boils down to priorities. What are the proper priority roles of county government?
Economic Development. In Millard County, by dollar volume, by far the vast majority of productive economic development and commercial activity (think IPP, Magnum Gas, First Wind, Graymont, Materion, Liquadry, etc.) occurs outside the incorporated municipalities. As someone who has extensive experience in the trenches of private sector land-use, business, economic development and productive real estate development, Todd has learned that governmental micro-management chokes and/or kills business. Todd has learned that the single most important incentive to productive economic development and job growth is healthy respect for property rights, resulting in reasonable zoning and land-use ordinances, and user-friendly regulation and administration. Todd is also well-acquainted with the Factor of 7, and the multiplier effect of money spent in the local economy. He understands that when the county supports local businesses and spends money in the local economy, that money turns over repeatedly and is multiplied by a factor of seven. For an extensive discussion of Millard County’s economic development issues, SEE Lessons from the California Gold Rush — Realistic Prospects for Economic Development in Millard County.
Policy Priorities? As a matter of principle, what should Millard County’s policy priorities be? How sound are Millard County’s fiscal policies, practices and management? What about the landfills? What about the golf course? Although Millard County’s local economy has been quite blessed for the past 40 years, there has been minimal job growth on the east side in the last 15-20 years. What does the future hold? If, with the proposed conversion from coal to natural gas, IPP loses two-thirds of its work force, what does the future hold for Millard County, economically? In an even worse case scenario, what if IPP completely goes away? Are other businesses, industries and enterprises waiting in the wings to fill the void? How do you feel about making up the difference on your property tax bill? Preparing for these eventualities isn’t something that can just happen overnight. It needs to be happening NOW. What is being done now to prevent a local economic crisis? And what is being done to encourage job growth to so less Millard County young people are left with no choice but to leave the county in search of employment capable of providing a living wage and supporting a family?
FISCAL RESPONSIBILITY. How sound are Millard County’s fiscal policies, practices and management? What about the landfills? How about the golf course? How sound are county procurement practices?
Is Millard County prepared to tighten its belt? How do you feel about making up the difference on your property tax bill? Preparing for these eventualities isn’t something that can just happen overnight. It needs to be happening NOW. It should have been happening yesterday. But what is being done even now to prevent a local economic crisis?
As a matter of principle, does Millard County need and deserve a leader with personal experience in and understanding of big-picture economic development, and responsible fiscal planning and management? Someone who also understands the need to balance competing interests, and understands that often the most important thing local government can do is to simply respect fundamental property rights, and not choke private business with red tape and over-regulation?
Agriculture & Water Issues. According to some reports, in terms of dollar volume, Millard County is the second highest-producing agricultural county in the state. And agriculture in Millard County is completely dependent on water rights — both surface and groundwater rights. Farming in Millard County requires irrigation, and ranching requires stockwater. In terms of agricultural water use, only Box Elder County, with the Bear River, competes with Millard County in terms of volume.
As a matter of principle, does Millard County need and deserve a strong agricultural voice, from someone who thoroughly understands agricultural issues, including land-use, water rights, as well as productive economic development, etc.?
The original vision of the Founding Fathers was something called “Balanced Federalism.” It represented the concept of a federation—a union—of separate, individual, autonomous states acting together as a union of united states, with neither any individual state nor the union of states having dominion over any other states. The whole notion was based on the twin concepts of division of power and balance between and among competing entities. It was the idea that an effective system of separation of powers and checks and balances, state and local governments – and the people – would hold the Federal Government in check. Is it time for state and local governments – including Millard County — to start taking that responsibility more seriously, and doing a better job of holding the federal government in check?
Given Millard County’s situation, as a matter of principle, does Millard County need and deserve a strong voice on Public Lands issues, from someone who thoroughly understands the critical issues, including valid, prior existing rights (like RS-2477 access rights, water rights, and grazing rights), the FLPMA mandates of Multiple Use and Sustained Yield, and the important role of Coordination, not to mention other pressing issues like endangered species, wildlife, wild horses, and wildfire management?
Second Amendment. Todd likes to think, and often says, that the Second Amendment is alive and well in Millard County. But the reality is, the Second Amendment is under attack everywhere. When a retired U.S. Supreme Court Justice proposes repeal of the Second Amendment, it’s a serious issue. Todd recognizes that the reality is, for the liberal agenda, reversing the District of Columbia v. Heller, and doing away with the Second Amendment is as big or bigger goal than reversing Roe v. Wade, and doing away with abortion rights is for conservatives. Fundamental gun rights are under serious attack, and Todd has played an active role in high-profile federal cases in Nevada and Oregon that have helped continue to protect fundamental Second Amendment rights.
Keeping it Local. A fundamental and well-recognized principle of government is that essentially all politics boil down to local politics. Todd Macfarlane believes that local government is the most important level, and is important enough that, as a matter of principle, it should be taken more seriously than a high school popularity contest, where personality considerations, including which side of the tracks one lives on, are the tail that wags the dog. Is it time for Millard County to choose leaders who put principle over personality?
Like each and every other county official, Millard County Commissioners represent the ENTIRE county. Unlike the school district, and legislative and congressional districts, there are no representation districts or precincts in Millard County Government. Consequently, county commissioners are not elected by district, area or precinct. Millard County Commissioners are elected by the entire county, to represent the entire county, and all its residents – wherever they may live. That is the law, and that is what makes sense. Otherwise, county residents would be disenfranchised, and ulawfully deprived of fair, equal and equitable representation.
Under the legitimate rule of law, like the Pledge of Allegiance says, Todd believes there should be “Liberty and Justice for All.”
In conclusion, just a couple relevant questions: Are local government and the foundational stewardship of fundamental freedom important enough to treat differently than a high school popularity contest?
Would you rather have representation based on principle . . . . or personality? WHY?