Bunkerville standoff case likely to be determined by the 9th Circuit

Cliven Bundy released from jail. (Photo by R-J’s K.M. Cannon via AP)

As Yogi Berra said, “It ain’t over till the fat lady sings.”

In the matter of the Bunkerville standoff case, the fat lady may be the 9th U.S. Circuit Court of Appeals. Though the judge on Monday dismissed the case against Cliven Bundy, two of his sons and a Montana militia man “with prejudice,” meaning the charges can’t simply be refiled and another trial scheduled, according to the Reuters account, The Associated Press notes that the U.S. attorney, Dayle Elieson, released a one-sentence statement saying she will make a determination about whether to challenge the ruling before the appellate court.

Four years after the standoff, in which armed protesters faced off with heavily armed BLM agents attempting to impound Bundy’s cattle for failure to pay $1 million in grazing fees and fines for two decades, and millions of tax dollars spent by the prosecution, what are the chances the feds will not appeal to the reliably liberal and prosecution-sympathetic 9th Circuit?

Witness the court’s pro-government rulings in both the Walker River Irrigation District and the Wayne Hage ranch cases. On both cases the court found that a federal judge’s hard-earned, keen-eyed determination that the federal land agencies were running rough shod over the defendants amounted to bias on the judge’s part rather than accurate judgment.

In the Walker River case the court found evidence of bias in the fact that the judge had stated, “I believe in constitutional rights. I believe in protecting the rights of the Native Americans and in property rights that have been recognized over time, I believe in that and that’s my agenda.”

Another factor may be that nearly all the disclosure evidence that the prosecution failed to turn over to the defense, which resulted in a mistrial and the dismissal of charges, were deemed not admissible in earlier trials. Could that be grounds for appeals in the handful of convictions in those trials, since the discovery was not available then? One man was sentenced to 68 years in prison.

For example, the judge noted that the prosecution failed to give to the defense log entries that said “snipers were inserted” outside the Bundy home, though prosecutors previously denied any snipers were posted and now say they were unaware of the FBI log showing otherwise. Ignorance is no excuse, the judge chided.

In an earlier trial, the same judge kicked defendant Erik Parker off the witness stand for trying to mention where a BLM sniper was positioned. He was not allowed to continue his defense. The judge had ruled that evidence of provocation was not admissible.

Also, according to AP, the judge has set a Feb. 26 trial date for four defendants still awaiting trial, including two more Bundy sons, Mel and David. What will they be allowed to argue in their defense, if the trial goes forward?

 

 

Advertisements

Will remaining Bundy defendants face a new trial?

Bunkerville standoff (Reuters pix)

On Monday federal Judge Gloria Navarro will hear arguments as to whether Cliven Bundy, two of his sons and a Montana militia man should again face trial on charges growing out of the Bunkerville standoff with BLM agents attempting to impound Bundy’s cattle in 2014.

The judge declared a mistrial in December when she ruled the prosecution had failed to timely turn over evidence to the defendants.

Now she must decide whether that mistrial is with prejudice, meaning no retrial, or without prejudice, meaning still another trial.

The first trial also ended in a mistrial for four of six defendants when the jury could not reach unanimous verdicts. Of the remaining four, two were acquitted during retrial and two others pleaded guilty to misdeamnors and were released on time served after the jurors again could not reach unanimous verdicts.

One of those convicted was sentenced to 68 years in prison. In doing so Navarro called the man and other protesters “playground bullies,” adding, “You don’t just go to the tax office and threaten them to not collect taxes.”

During the sentencing to seven years in prison of a protester who copped a plea, Navarro called him “a bully vigilante, threatening peacekeepers of the community.”

What are the chances of Navarro declaring the mistrial is with prejudice?

All the remaining defendants, except Cliven Bundy, have been released on what amounts to house arrest. Bundy refused to agree to the conditions of release and remains jailed for almost two years now.

Six more defendants, including two more Bundy sons, Dave and Mel Bundy, are scheduled to be tried 30 days after the end of the current trial, if there is one. What will become of that trial if this one does not go on?

Millions have been spent prosecuting this case. What are the odds?

 

 

Editorial: BLM moving forward with fire prevention effort

The Bureau of Land Management posted on the Federal Register a couple of weeks ago a notice that it is beginning the tedious paperwork process to finally do something to prevent the devastating wildfires that have plagued the Great Basin region in recent years.

The notice states the BLM will create two Environmental Impact Statements (EIS)— one will analyze the effects of constructing fuel breaks that clear flammable material along a swath of land to curb the spread of wildfire and another to study the effectiveness of restoring rangeland to counteract the spread of invasive species such as cheatgrass and conifers that burn too easily. The states involved include portions of Nevada, Idaho, Oregon, California, Utah and Washington.

According to the National Interagency Fire Center, wildfires consumed nearly 10 million acres in 2017.

In September Interior Secretary Ryan Zinke, whose responsibilities include the BLM, promised, “This Administration will take a serious turn from the past and will proactively work to prevent forest fires through aggressive and scientific fuels reduction management to save lives, homes, and wildlife habitat. It is well settled that the steady accumulation and thickening of vegetation in areas that have historically burned at frequent intervals exacerbates fuel conditions and often leads to larger and higher-intensity fires.”

The EISs, which are required by federal law, mark the beginning of fulfilling that promise. Comments may be submitted in writing until Feb. 20. Those comments may be submitted via:

* Website: https://go.usa.gov/ xnQcG.

* Email: GRSG_PEIS@blm.gov.

* Fax: 208-373-3805.

* Mail: Jonathan Beck, 1387 S. Vinnell Way, Boise, ID 83709

Meetings to discuss the proposed fire prevention efforts will be scheduled throughout the region and will be announced 15 days in advance in the local media and on the BLM website.

One of the reasons for the current initiative, according to the Federal Register notice, is that wildfires tend to increase the the risk of still more wildfires — a positive feedback loop.

“In warm, dry settings, sagebrush-steppe usually takes, at a minimum, many decades to recover, even where invasive annual grasses or other invasive plant species do not become dominant,” the notice states. “Invasive species and conifer encroachment can be exacerbated as a result of wildfires in sagebrush ecosystems, resulting in an increased risk of wildfires …”

Among the concerns that will need to be addressed and evaluated during the comment period and subsequent meetings is that fuel breaks and the accompanying road improvements, by their very nature, improve access for firefighters but also for the general public, which might lead to an increase in the number of human-caused fires. Also, such breaks reduce the cover for small wildlife to avoid predators.

The Associated Press quoted Matt Germino, a research ecologist with the U.S. Geological Survey, as saying fuel breaks are a bit of a paradox. “Fires, especially large fires, are so unambiguously damaging to wildlife habitat in general — that is the motivating factor for getting these fuel breaks out,” he said. “At this point, it’s really difficult to predict which animal species will benefit and which ones won’t. Sometimes you have to just act in light of the uncertainty.”

That cautionary note aside, we strongly endorse this effort by the current administration to protect not only the environment but also those who earn their living from the land by ranching, farming, logging and mining and those who use the public lands for hunting and recreation. We encourage our readers to submit comments and attend meetings to counter the likely resistance by self-styled environmentalists.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Firefighters battle blaze near Wells this past summer. (Photo submitted to Elko Daily News)

Newspaper column: Why Nevada must hit the brakes on taxes

WSJ illustration

It’s called voting with your feet.

A remarkable number of well-heeled Americans are doing just that, and it should serve as a warning to Nevada voters and candidates as we enter an election year. Though Republican governors in recent years have shepherded through the Legislature record-high tax increases, Nevada still fares fairly well in comparison to other states when it comes to the tax burden borne by citizens of the Silver State.

According to the Tax Foundation’s analysis of state and local tax burdens per capita for fiscal year 2012 — which is after Gov. Kenny Guinn’s billion-dollar tax hike but before the $1.5 billion tax hike pushed by Gov. Brian Sandoval — Nevada ranked 43rd lowest in the nation, while neighboring Taxafornia ranked sixth highest.

Nevada tax collectors grabbed 8.1 percent of the state income through state and local taxes or $3,349 per capita. Meanwhile, California snatched 11 percent of state income or $5,237 per capita.

Perhaps that explains why, according to Internal Revenue Service data on taxpayer migration, from 2014 to 2015 about 10,500 Nevada taxpayers moved to California, while 17,700 California taxpayers moved to Nevada. Even more telling is the fact that the Californians fleeing to lower-taxed Nevada averaged $91,000 in gross adjusted income, while the Nevadans heading to California averaged only $47,400 in adjusted gross income.

It seems people with higher income have a tendency to find ways to keep more of it for themselves.

From 2014 to 2015 Nevada netted an increase in total adjusted gross income reported to the IRS of $1.43 billion. Of that, $1.1 billion came due to the influx of Californians changing residencies.

An analysis of a sampling of that IRS data shows the California-Nevada migration pattern is no anomaly.

In that one year, the state of New York, which has the highest state and local tax burden of any state at 12.7 percent of income and $6,993 per capita, lost $4.4 billion in income.

No. 2 highest Connecticut lost $1.3 billion in income. No. 3 highest New Jersey lost $2.46 billion. No. 5 Illinois lost $3.47 billion. No. 6 California lost $2.09 billion.

Meanwhile, state income tax-free Texas, ranked 46th lowest, added $3.61 billion, and state income tax-free Florida, though only 34th lowest, added $11.65 billion. The latter might have something to do with weather as well, since $2.62 billion of that came in from former New Yorkers, $1.49 billion from former New Jersey residents and $1.47 billion from former Illinoisans.

The New Jersey residents who moved to Florida had an average income of $121,000, while Floridians moving to New Jersey averaged $72,500.

This is hardly surprising nor a new phenomenon. In an article in The Wall Street Journal in 2009 under the headline, “Soak the Rich, Lose the Rich,” economist Arthur Laffer and WSJ economics writer Stephen Moore updated previous studies and found that from 1998 to 2007, more than 1,100 people every day of the year relocated from the nine highest income-tax states — such as California, New Jersey, New York and Ohio — mostly to the nine tax-haven states with no income tax — including Florida, Nevada, New Hampshire and Texas.

Laffer and Moore determined that over that period of time the no-income tax states created 89 percent more jobs and had 32 percent faster personal income growth than the high-tax states.

“Did the greater prosperity in low-tax states happen by chance? Is it coincidence that the two highest tax-rate states in the nation, California and New York, have the biggest fiscal holes to repair?” they asked. “No. Dozens of academic studies — old and new — have found clear and irrefutable statistical evidence that high state and local taxes repel jobs and businesses.”

A recent WSJ editorial noted that billions in income are still flowing out of New York, New Jersey and Connecticut and into Florida.

“As these state laboratories of Democratic governance show, dunning the rich ultimately hurts people of all incomes by repressing the growth needed to create jobs, boost wages and raise government revenues that fund public services,” the editorial concluded.

Voting with the feet is sure to increase since the recent tax reform limits federal income tax deductions for state and local taxes.

Let this be a lesson for Nevada. Chase the rich, they’ll run away.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

New opioid law restrictions creating pain for docs

Well, that didn’t take long.

Only three days after a new law dictating to doctors how to handle opioid prescriptions took effect, doctors are complaining about the excessive paperwork and the potential risk to their licenses for simple mistakes, according to the Las Vegas newspaper.

Doctors at a Wednesday meeting complained that regulations are vague as to what actually constitutes a violation.

The law attempts to prevent oversubscribing of opioids, though every patient is different and causes of pain are difficult to pinpoint and levels of pain are relative.

Here is an example of how the law is being explained to doctors:

  1. Rules for First-Time Prescriptions of Controlled Substances For The Treatment Of Pain: AB 474 includes guidelines that prescribers must follow prior to writing an initial prescription, which include having a bona fide relationship with the patient; establishing a preliminary diagnosis and treatment plan; obtaining and reviewing the patient’s Prescription Drug Monitoring Report; and discussing non-controlled substance treatment options with the patient. The practitioner must also perform a patient risk assessment, which consists of reviewing the patient’s medical history, conducting a physical examination and assessing the patient’s mental health and risk of abuse, addiction and dependency.If after review and assessment of the patient, the prescriber writes a prescription it can be for no more than 14 days for acute pain, and no more than 90 morphine mili-equivalent for opiate-naïve patients. Also, the patient must complete a written informed consent form stating that, among other things, they understand the potential risks and benefits of using the controlled substance.

  2. Prescribing After 30 Days: A practitioner who prescribes a controlled substance to treat pain for more than 30 days must enter into a Prescription Medication Agreement with the patient. The agreement must be part of the patient’s record and must include goals of the treatment. Patients also must agree to use the controlled substance as prescribed, not to share the medication, and to inform the practitioner of other prescriptions or substance uses that may affect the prescription.

  3. Prescribing After 90 Days: A practitioner who prescribes a controlled substance to treat pain for more than 90 consecutive days must now determine an evidence-based diagnosis for the cause of the pain; complete a risk of abuse assessment; continue an ongoing discussion about the plan with the patient; and obtain and review the patient’s Prescription Drug Monitoring Program report at least every 90 days during treatment.

  4. Prescribing After 365 Days: A practitioner should not prescribe a controlled substance to a patient who has already received 365 days’ worth of that controlled substance for a particular diagnosis in any given 365-day rolling period. The practitioner may choose to prescribe a larger quantity than the patient needs for the treatment period, so long as the practitioner documents their rationale in the patient’s medical record.

Clear as mud?

One doctor complained that it now takes an extra 10 minutes per patient just to fill out forms. Time is money.  And that is in the first week. Wait till the 30-, 90- and 365-day rules kick in.

In an op-ed in USA Today six months ago, a doctor offered this suggestion to lawmakers:

If we are really interested in addressing the opioid overdose problem, we should get government out of the way and let doctors be doctors. Trust health care providers to follow their best judgment, use “harm reduction” strategies and abide by their oath to ease pain and suffering and “do no harm.”

He also said aggressive laws drive patients into the illegal market, where drugs may be laced with dangerous additives.

In fact, the Las Vegas paper quoted a Reno doctor as saying, “Just the other day, I had a patient tell me point-blank they’re not going to sign the forms, they don’t want to do initial testing, and they would just go to the street to get their narcotics.”

Lawmakers, heal thy selves.

Doctors complain about new law restricting opioid prescriptions. (R-J pix)

 

 

 

 

Public safety project delayed over petty prevailing wage law dispute

Workers installing bollards along the Strip. (R-J pix)

Talk about the tail waging the dog.

The geniuses at the Clark County Commission postponed approving a $2.5 million contract to install 500 steel post barriers along the Strip to protect pedestrians from vehicles veering onto sidewalks, because three construction workers might have been shorted a couple of hundred dollars for work performed on a previous contract, according to the Las Vegas newspaper today.

It is all because of the state’s prevailing wage law that mandates public works projects pay workers what amounts to union scale, inflating the cost of such projects by millions of dollars and now delaying a public safety project by at least a few weeks over a petty dispute.

According the paper, the Nevada Foundation for Fair Contracting, whatever that is, complained that three, just three, concrete finishers performed jobs that under the law should have been paid at a higher scale — $6 to $7 an hour more. Of course, Tuesday was the first the company heard of the claim.

At $5,000 per post, called bollards, apparently the job is not as simple as digging a post hole and cementing in a steel pipe, but what government job ever is?

Local police would prefer there be no delay, but have no control over the situation, Metropolitan Police Department spokesman Larry Hadfield said.

“Although it would be optimal for these to be installed on time the LVMPD is not part of the construction of the bollards,” he said.

Commission Chairman Steve Sisolak was quoted as saying of the delayed contract, “That’s just the beginning, the next 500. We’ve got thousands coming after that, and I want to make sure the company is doing the right thing by paying their workers at the appropriate rates.”

Why should a dispute over a past contract delay a future one, especially over such a petty amount. In fact the head of the complaining organization was quoted as saying, “They basically got cheated who knows how many hundreds of dollars.”

Where are the liberals shouting: If it saves one life, it is worth it?

Newspaper insert takes its lead from the previous day’s editorial page

At least we know there is one person at the Las Vegas Sun insert in the morning newspaper that is reading the editorial page of the Review-Journal and taking it to heart.

It can’t be a coincidence can it?

Back on the 20th of December, the R-J published an editorial referencing an article in The New York Times from four days earlier about Harry Reid ramrodding through $22 million in secret funds for the purpose of researching UFOs. The next day the Sun published that week-old NYT story on its cover.

On Monday the R-J published an editorial referencing an NYT article from the previous Saturday about the regulatory burden being heaped on apple growers by federal agencies. Today the Sun printed that same story on the cover. Perhaps they have finally found their niche — being a helpful supplement to the actual newspaper.

Or, once Pavlov rang the bell his dogs salivated.