Newspaper column: Appellate court nominee falsely accused

The confirmation process for federal judicial nominees has turned into a scorched earth battle fueled by character assassination and innuendo coming from faceless, nameless partisan critics who can never be held accountable.

This was evident once again this past week as former Nevada Solicitor General Lawrence VanDyke, who has been nominated for a seat on the 9th U.S. Circuit Court of Appeals by President Trump, was excoriated and maligned by Democrats on the Senate Judiciary Committee hell bent to derail his confirmation.

The committee members were aided and abetted by the left-wing lawyers at the American Bar Association, which rated VanDyke “not qualified” based on 60 anonymous interviews with lawyers and judges. The scathing ABA letter accused VanDyke of being arrogant, lazy and an ideologue, questioning whether he would be fair to members of the “the LGBTQ community.”

The letter said, “Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.”

VanDyke uncategorically denied this, telling senators, “No, I did not say that. I do not believe that,” adding that he would “absolutely” commit to treating everyone with dignity and respect.

The letter did not deign to mention the ABA chief evaluator was a Montana trial lawyer who had contributed to VanDyke’s opponent when he ran for a seat on the Montana Supreme Court in 2014. Bias?

As solicitor general VanDyke worked in the office of then-Attorney General Adam Laxalt, who in a recent interview bristled at the baseless allegations thrown at VanDyke.

Laxalt countered, “He is the most humble, hardworking, intelligent lawyer we could possibly have nominated for this seat. He is tremendous in every way, both personally and professionally. He is a great human being and his legal acumen was unprecedented in our 400-person office.”

Of the accusation that VanDyke refused to say he would be fair to everyone appearing before him, Laxalt seethed, “It makes no sense that, as she says in that letter, that she asked whether he would basically discriminate against this group and he refused to answer. That doesn’t make any sense. That’s impossible. Of course, we don’t know the notes. We don’t know the question. We don’t know the context, but there is no way he would not affirm that he would treat all persons fairly under the law.”

Ironically, the former attorney general noted, it is the other side that lets their personal opinions and philosophy dictate their written opinions rather than legal precedent and the law, noting that 90 percent of lawyers coming out of law school today are liberals.

As for VanDyke’s qualifications, Laxalt said he has practiced before the 9th Circuit and the Nevada Supreme Court more than any nominee he is aware of. Of the cases handled by VanDyke, Laxalt said his agency almost never lost.

VanDyke has successfully challenged the Obama administration’s overtime and “waters of the U.S.” rules, as well as DACA, overly restrictive land use plans to protect sage grouse and cases involving religious rights.

“I’m telling you 1,000 percent that he is a humble, brilliant, hardworking man. I think those three in a string because obviously they said the exact opposite, that he was lazy, lacks humility, et cetera, but he is the polar opposite,” Laxalt said. “If you sat down with this guy you’d walk away … I always call him the gentle giant. He is 6-7 and he is the most non-imposing, kind, seriously sweet 6-foot-7 man you’ll ever meet.”

Laxalt predicts, “Lawrence VanDyke will be confirmed to the 9th Circuit. I am not concerned, and the Republican senators that I have spoken to on Judiciary were appalled by this. They were incredibly upset and there’s no movement on his nomination. People are going to support him and he will be confirmed. We can expect everything on the planet to be attempted in a (Brett) Kavanaugh-like smear. I mean a non-me-too-like Kavanaugh smear. They’re going to do everything they can to kill this guy.”

It is all about power, Laxalt said, noting that Trump’s two recent 9th Circuit picks would change the court from being very liberal to being more conservative.

According to Ballotpedia, an ABA “not qualified” rating is not necessarily an impediment. Of 21 nominees thus rated since 1989, 13 were confirmed, six withdrew and two are pending, including VanDyke.

Both of Nevada’s Democratic senators, Catherine Cortez Masto and Jacky Rosen, appeared on the Senate floor to oppose VanDyke’s nomination, saying he is unqualified, but really meaning that he doesn’t fit their ideological mold.

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.

Lawrence VanDyke before Senate Judiciary Committee.

Editorial: Judge blocks state sage grouse protection plans

A greater sage grouse male struts for a female. (Pix by Jeannie Stafford for U.S. Fish and Wildlife Service)

A federal judge in Idaho has pulled the rug out from under the Western states that had worked with the federal public land agencies to create separate plans to preserve sage grouse habitat and yet still allow fruitful economic activity such as mining, oil and gas exploration, farming and grazing.

U.S. District Court Judge B. Lynn Winmill granted an injunction blocking those plans in a lawsuit brought by several self-styled environmental groups. The judge agreed that the Bureau of Land Management plans announced this past spring failed to make a one-size-fits all, range-wide analysis, failed to evaluate climate change and removed protections for the birds unjustified by science and conditions on the ground. Never mind that the colorful fowl best known for its strutting mating ritual has never been added to the Endangered Species list, though its population in recent years has declined from millions to about half a million.

The suit — brought by the Western Watersheds Project, the Wildearth Guardians, Center for Biological Diversity and the Prairie Hills Audubon Society — opposed the regionalized plans for grouse protection in Nevada, Colorado, Idaho, Utah, Wyoming, Oregon and California.

The state-by-state plans announced in March backed off Obama administration plans that would have largely blocked most economic activity near grouse habitat.

“The State of Nevada thanks the Bureau of Land Management for incorporating our concerns and respecting the Greater Sage-Grouse habitat plan developed cooperatively by Nevada state agencies and local stakeholders,” Nevada’s Democratic Gov. Steve Sisolak was quoted as saying at the time in a statement conveyed by the BLM. “In particular, Nevada appreciates the BLM’s commitment to compensatory mitigation as an integral part of the success of Nevada’s habitat management plan. We look forward to working closely with the BLM Nevada Office and the Department of Interior leadership to ensure the revised habitat plans are fully successful.”

A year earlier, as the Nevada Plan was being finalized then-Republican Gov. Brian Sandoval also praised the cooperation the state was getting from the Trump administration land agencies. “I look forward to reviewing the draft Environmental Impact Statement and I trust that the Department of the Interior will continue to engage with and value the opinions of the impacted western governors,” Sandoval was quoted as saying. “I am confident we can find success by working together.”

Nevada’s Republican Sen. Dean Heller and Republican Congressman Mark Amodei also thanked the Interior Department for respecting the work of Nevada stakeholders.

But the judge has prevented those regional plans from being used.

Courthouse News quoted an attorney representing the plaintiffs as saying of the ruling, “The Bureau of Land Management deliberately undermined protections for the sage grouse, then had the audacity to claim these rollbacks would not impact the species. The law demands more. This injunction is critical to protecting the sagebrush steppe and this icon of the American West.”

What most people forget is that this icon of the American West never was seen by early explorers of the American West in the 1820s and 1830s, nor by the first wagon trains in the 1840s. Not until settlers brought in horses, cattle, oxen and sheep, which fertilized the soil and ground the vegetation into the ground, while ranchers also improved water sources, did the sage grouse population grow into the millions. Human activity actually caused the birds to thrive. Fires and the lack of predator control have caused the grouse population to dwindle somewhat, not mining, exploration, grazing and farming.

Local common sense management of the lands — not one-size-fits-none central planning — will preserve the sage grouse and jobs.

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.

Newspaper column: Judge’s dismisses states’ tax reform challenge

A federal judge in New York made short work of the lawsuit filed by New York, New Jersey, Connecticut and Maryland seeking to block one aspect of the Tax Cuts and Jobs Act signed by President Trump in 2017.

The states challenged the law because it capped at $10,000 the amount of state and local taxes (dubbed SALT) that could be deducted from IRS filings. Previously the wealthy in high-tax states could deduct most state and local taxes, meaning the taxpayers in lower-taxed states, such as Nevada, were paying a disproportionate share of federal taxes.

New York, for example, points out in its filings in the lawsuit that prior to the $10,000 cap its taxpayers who itemized deductions claimed an average SALT deduction of nearly $22,000. The other three states estimated their taxpayers in 2018 paid $7.5 billion more to the IRS than they had prior to the cap.

The Democrat-dominated states argued that since the tax law passed without a single Democrat in Congress voting for it and was signed by a Republican president that its true purpose was “to coerce a handful of States with relatively high taxpayer-funded public investments — States that are primarily Democratic leaning — to change their tax policies.”

In his 37-page opinion U.S. District Court Judge J. Paul Oetken dismissed the state’s contention that the tax reform unconstitutionally coerces the sovereign states to lower their taxes. In fact he cited a Supreme Court opinion in the case of South Dakota v. Dole, in which the court said it is permissible for Congress to withhold federal highway funds from states that failed to raise the legal drinking age to 21. Sounds like the definition of coercion.

Judge Oetken wrote, “To be sure, the SALT cap, like any other feature of federal law, makes certain state and local policies more attractive than others as a practical matter. But the bare fact that an otherwise valid federal law necessarily affects the decisional landscape within which states must choose how to exercise their own sovereign authority hardly renders the law an unconstitutional infringement of state power.”

He later wrote that he declined to speculate on Congress’ motives for passing the SALT deduction cap.

“So even if, as the States contend, Congress enacted the SALT cap in order to exert downward pressure on state and local tax rates, such a motive poses no constitutional problem as long as the states remain free ‘not merely in theory but in fact’ to set their own tax policies,” the judge concluded.

While the four high-tax states view the tax reform as coercive, the rest of the states tend to view the SALT cap as rectifying a long-standing inequity.

Nevadans — along with residents of New Hampshire, Florida, Wyoming, Texas, South Dakota and Alaska — used to be able to deduct about 1 percent or less of their adjusted gross income, while those who live in New York, Maryland, D.C. and California could deduct more than 5 percent. Nearly one-third of the additional federal tax dollars generated by the SALT cap comes from Californians and New Yorkers.

Using 2010 statistical data from the IRS, you find Californians who filed for state and local income tax deductions claimed deductions of $10,700 per return. Nevadans who filed for the state and local sales tax deduction claimed only $1,430 per return. Calculated on a per capita basis, Californians claimed $2,116 in federal income tax deductions, while Nevadans claimed only $166 per person for SALT deductions.

“The cap, like any federal tax provision, will affect some taxpayers more than others and, by extension, will affect some states more than others,” Judge Oetken wrote. “But the cap, again like every other feature of the federal Tax Code, is a part of the landscape of federal law within which states make their decisions as to how they will exercise their own sovereign tax powers.”

The tax reform is far more fair to a majority of the states that maintain at least some modicum of tax restraint.

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.

Editorial: Presidents and courts should not overturn laws

The Supreme Court in June agreed to decide whether the Trump administration lawfully canceled a program created by executive fiat by President Obama in 2012 that protected immigrants brought into the country illegally as children — popularly dubbed Dreamers — from deportation and be provided work permits.

Prior to that, such persons were subject to deportation by law.

The program is called the Deferred Action for Childhood Arrivals (DACA) and is the subject of a case titled Department of Homeland Security v. Regents of University of California, et. al. This past week Nevada Attorney General Aaron Ford filed a friend of the court brief in the case on behalf of Nevada, Michigan, Wisconsin and the governors of Kansas and Montana.

“DACA recipients are members of the Nevada family, and we take care of our family,” Ford is quoted as saying in a press release announcing the filing. “By ending DACA, the Trump Administration turned its back on hundreds of thousands of young people who want nothing more than to continue living and working in the country they call home. Dreamers make America, and Nevada, great. I will continue to fight for them and for our Nevada family.”

The press release also quotes Gov. Steve Sisolak as saying, “Nevada’s 12,000 DACA recipients are hard-working members of our communities who contribute to our state every day. As Governor, I’m proud that Nevada is fighting back to defend our DREAMers against any attempts to undermine their protected status.”

In 2017 Trump announced his decision to cancel DACA, but several lower courts have blocked the move, saying the decision was arbitrary and capricious, because the administration failed to offer a sound rationale for changing course. Currently, the administration isn’t accepting new DACA applications, but continues to process renewals from Dreamers already in the program.

The attorney general’s court brief makes several compassionate arguments for why DACA should remain in force.

The brief notes that there are currently more than 669,000 DACA recipients in the United States who are able to work or attend school without fear of deportation. In Nevada, DACA recipients accounted for an estimated $261.8 million in spending power in 2015 and paid an estimated $19.9 million in state and local taxes, the brief states.

It goes on to point out that nationwide 73 percent of DACA grantees live with an American citizen spouse, child or sibling. “In Nevada, 27,600 individuals live in mixed-status households with an estimated 4,600 United States-born children of DACA recipients,” the brief relates. “Losing DACA status threatens to throw families into financial chaos, because many depend on the incomes and health insurance of the DACA recipients in their families. It also threatens to tear families apart, as native-born children of DACA recipients could be separated from their parents if removal proceedings are instituted against them.”

It also notes that residents who live in fear of deportation are less likely to report crimes or to seek proper medical care.

All true enough, but under our Constitution Congress writes laws, not the president or the courts. The Trump administration has expressed sympathy for the Dreamers, but four different bills to address immigration and the border wall failed this past year, according to The Wall Street Journal.

Rather than press litigation the governor and the attorney general should demand our congressional delegation get off the impeachment bandwagon and pass immigration reform legislation the proper way — or else uphold the law as written by Congress.

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.

Newspaper column: Trump appeals court nominee looks right for the job

This past Friday President Trump nominated former Nevada Solicitor General Lawrence VanDyke to a seat on the 9th U.S. Circuit Court of Appeals, which handles cases for nine Western states and territories in the Pacific.

As solicitor general, VanDyke served in the office of then-Nevada Attorney General Adam Laxalt. He also served as solicitor general in Montana and Texas. 

VanDyke earned bachelor’s and master’s degrees from Montana State University-Bozeman and graduated magna cum laude in 2005 from Harvard Law School, where he was editor of both the Harvard Law Review and Harvard Journal of Law and Public Policy. He is a member of the conservative Federalist Society and currently is a deputy assistant attorney general for the Environment and Natural Resources Division at the Department of Justice.

Nevada’s Democratic U.S. Sens. Catherine Cortez Masto and Jacky Rosen immediately issued a statement sharply critical of the nomination.

Lawrence VanDyke

“We’re frustrated the White House is choosing to ignore the bipartisan work undertaken by our offices in concert with Nevada’s legal community to identify and recommend qualified Nevadans for the Ninth Circuit,” said their statement. “The Administration’s decision to put forward this nominee ignores the broad, consensus-based opinion of Nevadans. Instead, the White House has chosen to move forward on their extreme judicial agenda. While we will review the full record of this nominee, we are disappointed that the White House has chosen to nominate a candidate with a concerning record of ideological legal work.”

Only two days before the two senators had announced the formation of what they called “bipartisan judicial commissions to make recommendations for Nevada’s judicial vacancies,” and said, “We are establishing the commissions to encourage this and future administrations to nominate candidates that reflect the diversity and values of the Silver State.”

Republican President Trump paid no heed whatsoever.

Critics of VanDyke quickly jumped on his record in Montana of advancing friend of the court briefs defending bans on same-sex marriage and abortion, as well as challenges to gun rights. 

The voters of both Montana and Nevada had amended their state constitutions to prohibit same-sex marriage, and in 2014 Montana filed a legal brief defending those amendments before the 9th Circuit. Cortez Masto, then Nevada attorney general, refused to defend the state’s amendment. The 9th Circuit eventually ruled both state’s amendments were unconstitutional.

VanDyke was quoted by a Montana newspaper, while running unsuccessfully for a seat on that state’s Supreme Court, “My job was to represent the interests of the people of Montana and defend our state’s laws. So simply because I worked on a specific case or made a specific recommendation obviously can’t be taken as representative of my personal views. In fact, as Montana’s solicitor general, I worked on cases and took positions that were sometimes at odds with my personal or political views.”

While working under Laxalt, VanDyke was said to be a key figure in securing an injunction staying the Environmental Protection Agencies’s 2015 “Waters of the United States” rule, which unduly expanded federal power over every stream, ditch, seasonal puddle and muddy hoof print as being covered by the restrictions of the Clean Water Act of 1972. 

The conservative National Review also notes that VanDyke’s challenge of the Bureau of Land Management’s over-broad greater sage grouse land plan caused the agency to back off. The plan would have withdrawn more than 10 million acres of federal public land from use for such things as grazing and mineral exploration. He also challenged the Obama-era EPA’s Clean Power Plan that threatened to raise power bills.

“VanDyke also litigated in defense of the Second Amendment and religious freedom,” the National Review article continues. “He filed the multi-state amicus briefs at both the circuit and Supreme Court level in the Trinity Lutheran case. He was also part of the successful multi-state challenge to the Obama administration’s DAPA program, which attempted to legalize and grant numerous benefits to over 4 million illegal aliens without statutory authority. As the lead lawyer for a 22-state coalition, he successfully challenged the Obama administration’s Overtime Rule.”

Sounds like the kind of person who could help change the future rulings of the once uber-liberal 9th Circuit.

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.

Both Trump and Biden apparently tried to extort the Ukraine

It now looks like both President Trump and then-Vice President Joe Biden used the threat of withholding money to get Ukrainian officials to do their bidding.

Trump now admits he ordered millions of dollars in military aid for Ukraine to be withheld a few days before he called the Ukrainian president and asked him to investigate Biden for corruption.

Biden threatened to withhold $1 billion in loan guarantees from Ukraine unless a prosecutor, who was looking into a company in which Biden’s son was involved, was fired. He was fired.

Pot calls kettle black.

Newspaper column: EPA Repeals Obama-Era Land Use Restrictions

Trump’s EPA rolls back Obama-era Clean Water Act rules. (AP pix via WSJ)

The Trump administration’s Environmental Protection Agency has finalized the repeal of yet another Obama-era regulatory overreach, specifically rules that defined every stream, ditch, seasonal puddle and muddy hoof print as being covered by the restrictions of the Clean Water Act of 1972 that was intended to prohibit pollutants being dumped into navigable waters — known as the waters of the United States or WOTUS.

First announced in December but finalized this past week, EPA Administrator Andrew Wheeler said, “Our revised and more precise definition will mean that farmers, property owners and businesses will spend less time and money determining whether they need a federal permit.”

When the change was first proposed, Wheeler said, “Property owners will be able to stand on their property and determine what is federal water without having to hire outside professionals.”

National Cattlemen’s Beef Association President Jennifer Houston issued a statement applauding the change.

“The 2015 WOTUS Rule was an illegal effort by the federal government to assert control over both land and water, significantly impacting our ability to implement vital conservation practices,” Houston said. “After years spent fighting the 2015 WOTUS Rule in the halls of Congress, in the Courts, and at the EPA, cattle producers will sleep a little easier tonight knowing that the nightmare is over.”

American Farm Bureau Federation President Zippy Duvall released a statement saying, “No regulation is perfect, and no rule can accommodate every concern, but the 2015 rule was especially egregious. We are relieved to put it behind us. We are now working to ensure a fair and reasonable substitute that protects our water and our ability to work and care for the land. Farm Bureau’s multi-year effort to raise awareness of overreaching provisions was powered by thousands of our members who joined with an array of allies to achieve this victory for clear rules to ensure clean water.”

The National Association of Home Builders and the National Association of Manufacturers also praised the repeal of the WOTUS overreach, according to The Wall Street Journal, which noted that roughly 25 percent of every dollar spent on a new home in this country is due to regulatory-compliance costs.

The change brings the EPA more in line with what the U.S. Supreme Court has said is appropriate. In 2010 the Hawkes Co., which mines peat for use on golf courses among other things, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Army Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000. The Corps said the wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. Failure to comply carried a threat of fines amounting to $37,000 a day and criminal prosecution.

In a concurring opinion in that case, Supreme Court Justices Anthony Kennedy, Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Chief Justice John Roberts during arguments noted the arduousness of compliance. He said a specialized individual permit, such as the one sought by Hawkes, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required. He said the permitting process can be “arduous, expensive, and long.” He failed to mention that is also often futile.

Then-Nevada Attorney General Adam Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded the judgment at that time, saying, “The Obama administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

Nevada’s current Democratic Attorney General is being quoted by the press as saying, “At this time, Nevada believes it would be in its best interest to remain under the pre-2015 WOTUS rule,” and the Nevada Department of Environmental Protection is said to agree.

Though this change in the rules used by the EPA is welcome, some future administration could easily overturn them. Congress needs to act to clarify the Clean Water Act. Previously, the House and Senate passed resolutions that would have blocked the EPA water rules, but in January 2016 the Senate failed to override Obama’s veto.

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.