Newspaper column: States should not be granted absolute immunity

The U.S. Supreme Court heard arguments in a case this past week that could alter the ability of a private citizen to seek justice in his state’s courts when public employees from another state abuse their powers and step over the line of common decency. The case is titled Franchise Tax Board of California v. Hyatt.

It all started in 1993 when a tax auditor for the Franchise Tax Board of California read a newspaper article about how wealthy California computer chip inventor, Gilbert Hyatt, had recently moved to Nevada, which, unlike California, has no income tax. The auditor investigated and concluded Hyatt had not moved to Nevada as early as he claimed. The tax board said Hyatt owed California nearly $15 million in taxes and penalties.

Hyatt eventually sued the tax board in Nevada courts for invasion of privacy, intentional infliction of emotional distress, fraud, abuse of process and breach of confidential relationship. According to The Wall Street Journal, California’s lead auditor became obsessed with Hyatt and vowed to “get that Jew bastard.” The auditor reportedly traveled to his Nevada home and “peered through his windows and examined his mail and trash,” as well as pressed estranged family members to testify against him.

A Nevada jury found for Hyatt and awarded him $85 million for emotional distress, $52 million for invasion of privacy, $1 million for special damages for fraud and $250 million in punitive damages. Because Nevada has a law limiting the liability of its own state agencies the award was later reduced to $50,000.

In a strange case of role reversal, the argument now before the U.S. Supreme Court being pressed by California is that one of its earlier opinions should be overturned. That case is known as Nevada v. Hall. California residents brought suit in a California court for damages when a state of Nevada-owned vehicle on official business collided with the Californians on a California highway. The California courts assessed damages of more than $1 million against Nevada.

The U.S. Supreme Court in 1979 ruled that while states have sovereign immunity from being sued in their own courts, a state is not constitutionally immune from suit in the courts of another state.

In yet another twist, the attorneys general of 45 states, including Nevada’s then-Attorney General Adam Laxalt, have filed amicus briefs asking that Nevada v. Hall be overturned.

“The time has come for this Court to overrule its decision in Nevada v. Hall … an outlier among this Court’s consistent protection of the States’ sovereign immunity,” the brief argues. “Although this Court has held that States are immune in their own courts, in federal courts, and in federal administrative agencies, Hall allows a State to be haled before the courts of any other State and be forced to pay money judgments issued by those courts. This affront to the States’ sovereign dignity and financial resources is contrary to the Constitution’s structure and history and should be definitively rejected. For this reason, a total of forty-five States have joined briefs arguing that Hall should be overruled.”

During oral arguments this past week, California’s attorney argued that the “writings and speeches given by Hamilton, Marshall, and Madison” supported his view that states should be immune from legal action in the courts of other states.

Again according to the Journal, liberal Justice Sonia Sotomayor responded, “It’s nice that they felt that way, but what we know is they didn’t put it in the Constitution. And so we talk a lot now about not relying on legislative history, but relying on the plain text.”

Conservative Justice Samuel Alito added that “we are all always very vigilant not to read things into the Constitution that can’t be found in the text.” Justice Brett Kavanaugh asked why something the states supposedly regarded as so important would not have been addressed in the constitutional text.

Where is a citizen to turn when public officials flout the law and run amok? Does not state sovereignty include the right and power to protect its own citizens from agencies in other states when they are extorted and defrauded? You know what they say about absolute power.

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.

The rest of the story …

The Las Vegas newspaper carried about a quarter of Scott Sonner’s AP story about the new corral on the California-Nevada border that might allow the Forest Service sell more than 250 wild horses for slaughter.

For the rest of the story, go to the Elko Daily Free  Press.

There you will learn, no surprise, that a couple of self-styled horse hugger groups have already sued to try to prevent any slaughter.

“A hearing is scheduled Jan. 31 in federal court in San Francisco on a motion filed by the Animal Legal Defense Fund and American Wild Horse Campaign seeking an injunction to block the sale of the horses captured in the Modoc National Forest in October and November for possible slaughter. The new pen is in the forest, about 170 miles northwest of Reno,” AP relates

Wild horses being warehoused at Palomino Valley near Reno. (Photo by Jo Mitchell)

Horse slaughterhouses are prohibited in the U.S. but are legal in Mexico and Canada.
The 1971 Wild Free-Roaming Horse and Burro Act states: “The Secretary shall cause additional excess wild free-roaming horses and burros for which an adoption demand by qualified individuals does not exist to be destroyed in the most humane and cost efficient manner possible.”

But every federal budget since 2009, has stated, “Appropriations herein made shall not be available for the destruction of healthy, unadopted, wild horses and burros in the care of the Bureau or its contractors or for the sale of wild horses and burros that results in their destruction for processing into commercial products.”

The Forest Service has argued that the new pen in the Modoc National Forest allows it to bypass such restrictions at existing federal holding pens.
“The agency denies claims by horse advocates it has made up its mind to sell the more than 250 horses for slaughter,” Sonner writes. “But it also says it may have no choice because of the high cost of housing the animals and continued ecological impacts it claims overpopulated herds are having on federal rangeland.”
Justice Department lawyers were quoted as saying, “What has changed is that the Modoc now has its own short-term holding facility … which is not subject to congressional restrictions.”
The range is overpopulated and the market for wild horse adoptions is dwindling, but the horse huggers continue to litigate while the horses starve on the range and cost $50 million a year to warehouse.

Newspaper column: Green New Deal would cost a lot of ‘green’

If you liked FDR’s New Deal — which imposed federal regulations, restrictions and spending in virtually ever aspect of American endeavor — you’ll love the Democrats’ Green New Deal.

Some elements of the vague and nebulous proposition were finally revealed in a draft resolution this past week. All except the price tag.

The “green” part of the proposal is audacious, to say the least: To replace all existing power sources in the country with 100 percent renewable power in the next 10 years, thus eliminating all greenhouse gas emissions in the country.

Oh, but not just this country. The resolutions calls for “funding massive investment in the drawdown of greenhouse gases; making ‘green’ technology, industry, expertise, products and services a major export of the United States, with the aim of becoming the undisputed international leader in helping other countries transition to completely greenhouse gas neutral economies and bringing about a global Green New Deal.” Pie in the sky.

The plan also calls for “upgrading every residential and industrial building for state-of-the-art energy efficiency, comfort and safety …”

How much “green” will that cost?

California’s Energy Commission recently mandated such efficiency measures for every new home being built in the state starting next year. The commission estimated the cost to be $9,500 per home.

Since there are more than 130 million residential housing units in the U.S., that alone would cost more than $1.2 trillion. There are at least 5.6 million commercial buildings in the country, most much larger than residences and therefore more expensive to remodel to “state-of-the-art energy efficiency” levels, much less comfort and safety.

But the Green New Deal does much, much more than clear the air. It also would “include additional measures such as basic income programs, universal health care programs and any others as the select committee may deem appropriate to promote economic security, labor market flexibility and entrepreneurism …”

Medicare for All, being pushed by socialist Bernie Sanders and others on the left, is estimated to cost $32 trillion over the next 10 years. Who knows what a “basic income program” would cost.

How to pay for it all? you ask. In the frequently asked questions section of the resolution there is a solution: Print money.

Actually it says, “The answer is: in the same ways that we paid for the 2008 bank bailout and extended quantitative easing programs, the same ways we paid for World War II and many other wars. The Federal Reserve can extend credit to power these projects and investments, new public banks can be created (as in WWII) to extend credit and a combination of various taxation tools (including taxes on carbon and other emissions and progressive wealth taxes) can be employed.” Read: Print money.

Recently on “60 Minutes” one of the chief proponents of the Green New Deal floated the idea of imposing a 70 percent income tax on the “wealthy.” Unrepentant socialist and New York Democratic Rep. Alexandria Ocasio-Cortez said that, as in the 1960s, tax rates for those with incomes up to $75,000 could be as low as 10 or 15 percent, but much higher for those earning millions.

“But once you get to the tippie tops, on your ten millionth, sometimes you see tax rates as high as 60 percent or 70 percent,” she added. “That doesn’t mean all $10 million are taxed at an extremely high rate. But it means that as you climb up this ladder, you should be contributing more.”

She fails to realize that there were enough deductions and loopholes that no one ever actually paid a 70 percent income tax rate.

Since the plan would eliminate a lot of jobs related to the fossil fuel industry, everything from gasoline stations to car manufacturers to power plant operators, it also benignly promises to “provide all members of our society, across all regions and all communities, the opportunity, training and education to be a full and equal participant in the transition, including through a job guarantee program to assure a living wage job to every person who wants one …”

It just comes so easy when you assign an army of federal bureaucrats to fix the problem. You know, the ones who run the Veterans Administration, the Post Office, the Internal Revenue Service, Immigration and Customs Enforcement, the Environmental Protection Agency, the Bureau of Land Management, the National Endowment for the Arts, Congress, etc., etc.

This poppycock reportedly is backed by 40 duly elected House Democrats.

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.

Newspaper column: Ending net neutrality speeded up Internet

It has been a year since the Federal Communication Commission repealed net neutrality rules created by Obama’s FCC in 2015. Yet, the Internet miraculously survives. In fact, it is running 36 percent faster now that the meddlesome feds have been removed from the equation and the free market has been allowed to compete and innovate.

Net neutrality resurrected 1930s-style Ma Bell regulations to prohibit Internet service providers from charging anyone different rates, even the bandwidth gluttons such as Netflix and Google.

Back in May the Senate even passed a resolution seeking to bring back net neutrality. Though the effort fortunately stalled, Nevada’s Democratic delegation to D.C. was all for putting the Internet under the heavy hand of the central planners.

Sen. Catherine Cortez Masto took to the Senate floor in support of the resolution, saying, “Net neutrality has leveled the playing field for every American consumer, allowing everyone to access and enjoy an open Internet. … We can’t afford to repeal net neutrality. (FCC) Chairman (Ajit) Pai’s misguided decision to repeal net neutrality protections threatens to change the Internet as we know it. It threatens our small businesses, access to online education, job growth and innovation by giving those who can afford to pay more the ability to set their own rules.”

Rep. Dina Titus declared, “I agree with the vast majority of Americans who want the internet to promote innovation, access to information, and a competitive economy. All of that is at risk without strong net neutrality protections.”

Getty Image via WSJ

Then-Rep., now-Sen. Jacky Rosen stated, “This administration’s reckless decision to repeal net neutrality gives internet service providers the ability to stack the deck against Nevada’s hardworking families and small businesses who could be forced to pay more to connect to an internet with slower speeds. This resolution would reverse the FCC’s misguided ruling, which places large corporate profits ahead of people, and restore access to a free and open internet for Nevadans.”

Sen. Dean Heller at the time reasonably argued for the free market approach. “I do not want the federal government to determine content. …” Heller said. “I also don’t want the federal government to tax the Internet. I believe the Internet is the last bastion of freedom in America, frankly both good and bad, but it’s freedom. … Access to free and open internet service providers is especially important for Nevadans living in rural communities.”

Heller was right. Rosen was wrong.

According to Speedtest, fixed broadband speeds in the United States are rapidly increasing. Data for 2018 revealed a 36 percent increase in mean download speed and a 22 percent increase in upload speed. This meant the U.S. ranked seventh in the world for download speed and Nevada ranked seventh in the nation.

Back when the net neutrality rules were jettisoned many in the news media predicted doom and gloom. CNN declared it was “the end of the internet as we know it.”

But The Wall Street Journal correctly stated at the time that net neutrality created uncertainty about what the FCC would allow and thus throttled investment in new technology, because it prohibited paid prioritization — under which bandwidth hogs, such as video streaming companies, could have opted out of heavy traffic and switched to a toll road — which could increase profits to pay for innovation and greater speed.

The newspaper predicted both content providers and consumers would benefit from increased investment in faster wireless and fiber technology in the free market.

The invisible hand of the free market has again proven itself superior to the heavy hand of the central planners.

As economist Milton Friedman once said: “When government — in pursuit of good intentions tries to rearrange the economy, legislate morality, or help special interests, the cost come in inefficiency, lack of motivation, and loss of freedom. Government should be a referee, not an active player.”

Be forewarned, when Democrats take control of the House, expect another ill-advised attempt to resurrect net neutrality, despite empirical evidence to the contrary.

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.

Newspaper column: Federal sports betting bill usurps state powers

Now, precisely where in the U.S. Constitution is Congress given the power to “maintain a distinct Federal interest in the integrity and character of professional and amateur sporting contests”?

But this is what a bill introduced this past week by Republican Sen. Orrin Hatch of Utah and Democratic Sen. Chuck Schumer of New York — dubbed the Sports Wagering Market Integrity Act of 2018 — claim is grounds for imposing federal suzerainty over the eight states that currently allow sports wagering.

“This bill is the first step toward ensuring that sports betting is done right in the states that choose to legalize it,” Hatch said in a press release announcing the introduction of the bill.

“As a lifelong sports fan I treasure the purity of the game, and after Murphy v. NCAA, I knew that Congress had an obligation to ensure that the integrity of the games we love was never compromised,” Schumer was quoted as saying.

Murphy v. NCAA was the case in which the Supreme Court struck down the Professional Amateur Sports Protection Act (PASPA) of 1992, which outlawed sports gambling, though Nevada and a couple of other states were grandfathered. Hatch was one of the authors of that overturned law, which dictated how states should regulate sports betting.

Justice Samuel Alito’s opinion stated, “Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution. PASPA is not. PASPA ‘regulate[s] state governments’ regulation’ of their citizens … The Constitu­tion gives Congress no such power.”

This is because the 10th Amendment states that powers not delegated to the federal government are retained by the states and the people.

But Hatch and Schumer appear to be overreaching on Alito’s contention that Congress can regulate sports gambling directly, presumably under the Interstate Commerce Clause. But Nevada and the other states are regulating the intrastate commerce of sports betting, and doing just fine without federal meddling, thank you.

The bill would prohibit sports wagers on amateur sporting events, except the Olympics and college sports; prohibit sports wagering by anyone under 21, as well as athletes, coaches, officials and others associated with sports organizations; and would require sports betting operations to buy their data from sports organizations.

That latter requirement is one reason the various professional sports leagues are in favor of the bill. It lets them tap into the lucrative proceeds of legal sports betting.

The bill also dictates that sports wagering operators allocate an “appropriate percentage of the revenue from sports wagering” to treat gambling addiction and educate on responsible gaming. Might appropriate become confiscatory?

There is already a federal excise tax on sports betting that nets an estimated $12 million a year, which presumably would increase as legal sports betting spreads and the percentage rake is increased by revenue hungry lawmakers in D.C.

Of course, at some point the feds will want to take their cut from the state taxes on sports betting.

“This bill is the epitome of a solution in search of a problem, representing an unprecedented and inappropriate expansion of federal involvement in the gaming industry, which is currently one of the most strictly regulated in the country,” the Nevada Independent quoted Sara Slane, American Gaming Association’s senior vice president of public affairs, as saying. “Across the country, nearly 4,000 dedicated public servants already regulate all forms of gaming, including sports wagering, with more than $500 million committed to ensuring the integrity of commercial casinos’ operations and $822 million spent on regulation of tribal gaming in 2015 alone.”

The online news website also quoted Nevada Democratic Rep. Dina Titus, whose district includes the Las Vegas Strip, as saying, “This bill undermines Nevada’s expertise and experience in establishing a successful, regulated sports betting market. It would inject uncertainty into an established and regulated industry, weaken Nevada’s ability to promptly adapt to maintain its gold standard, and risk causing bettors and operators to leave the regulated market.”

As for integrity, who uncovered that 1994 point-shaving scheme at Arizona State? Oh yes, it was bookmakers.

This bill is a federal power grab that usurps the rights and powers of the states and does nothing for the “integrity” of sports.

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.

 

Newspaper column: Laxalt reflects on term as attorney general

As Adam Laxalt closes out his term as attorney general and transitions the office to his successor in January, he took the time to reflect on what his team has accomplished for Nevada.

“My vision for the office was to be more than an office that just represents state agencies and boards and commissions in areas that we thought we wanted to find ways to lead. The title of top law enforcement officer comes with the attorney general’s office but we really wanted to lead law enforcement, which is why we created the Law Enforcement Summit concept.”

One of the cases in which the office assisted law enforcement that Laxalt cited was out of Elko. In 2008 an Elko police officer stopped a California man named Ralph Torres for suspicion of underage drinking. Torres produced an ID showing he was 29, but the officer detained Torres while dispatch verified the ID and it turned out Torres had a felony warrant.

His conviction was overturned in 2015 by the Nevada Supreme Court, which said his detention violated the Fourth Amendment prohibition against unreasonable searches and seizures.

Laxalt’s office took the case to the U.S. Supreme Court and the arrest validity eventually was upheld.

Attorney General Adam Laxalt, with three children under 5, says he plans to get some sleep once he leaves office.

“That’s just one example among many of things that came out of our coordination and cooperation with rural law enforcement,” Laxalt said, adding that the office also helped cut the backlog in sex offender registry.

Laxalt’s office also filed a lawsuit challenging the Obama administration’s restrictive land use plans intended to protect sage grouse that hurt mining and ranching.

Though the Trump administration lifted many of those restrictions, Laxalt contends that had his office not fought the Obama rules in court they might have been implemented. “We made sure we slowed that train down. Fortunately, the current administration has a more cooperative approach to working with our state,” Laxalt said.

He noted that creating a federalism unit in the attorney general’s office was also important, because, “In the years prior to my taking office you really saw federal overreach. You really saw the expansive interpretation of federal powers.”

Asked to define federalism, Laxalt explained, “I think people misinterpret it a lot. Federalism is, of course, to make sure that we keep as much power at the state level as we possibly can as the Framers intended. We don’t want people 3,000 miles away trying to decide minutiae of how we should be running our state.”

One example of this was the effort by the Environmental Protection Agency and the Army Corps of Engineers to redefine the waters of the U.S. under the Clean Water Act.

“They were going to redefine that ‘navigable waters’ phrase more broadly than Congress intended or, so we argued, as anyone intended. That would have really hampered our own state and own local ability to be able to take charge of our own water,” the attorney general said, noting that a coalition of states won an injunction that slowed the implementation until the current administration could issue more rational rules.

Since 85 percent of the state of Nevada is controlled by various federal land agencies, the highest percentage of any state, Nevada is more strongly impacted by federal restrictions on land use.

“Right now we think we’re in a better situation in this state,” Laxalt said. “The current administration certainly (Interior) Secretary (Ryan) Zinke and the head of the EPA have a more federalism approach to working with states.”

He expressed a level of satisfaction with his office’s efforts to include rural Nevada counties in the decision making process and fending off federal regulations that could have been an economic death knell for rural counties.

When asked about any future plans, Laxalt said he and the 400 employees in his office are currently working to transition to the next attorney general, Democrat Aaron Ford. He said he’ll think about his future next January and February.

He joked that he is looking forward to getting some sleep. Not only has he been running the attorney general’s office, seeking unsuccessfully to be elected governor, but also raising three children under the age of 5.

Asked whether he might run for public office again in the future, Laxalt said, “You know I care deeply about this state and I certainly hope — you know it is something I’ve talked about a lot this year — that I don’t want our state to turn into California. … I really hope we hold onto our values, such as small government, individual liberties.”

We shall see.

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.

Newspaper column: Whither renewable power after wind farm rejected?

Wee Thump Joshua Tree Wilderness Area, with Crescent Peak in the background. (Basin and Range Watch pix)

The Bureau of Land Management has rejected a bid by a Swedish firm to construct a mammoth wind turbine project on the Nevada side of the border with California near Searchlight.

The Crescent Peak Wind Project was to have covered 32,000 acres of public land with as many as 220 wind turbines standing 400 to 600 feet tall and generating 500 megawatts of power. The proposed site is adjacent to the Mojave National Preserve and the Castle Mountain National Monument in California and the Wee Thump Joshua Tree Wilderness and the South McCullough Wilderness in Nevada.

While the vast majority of the arguments against the project were based on probable environmental and ecosystem damages, some of the reasons given by the Nevada office of the BLM for denial were actually ones about economics and, perhaps most importantly, air traffic safety.

While the land agency said the project did not conform with the area resource management plan, it also cited other concerns. “These issues include that access to the turbines would potentially affect the development of more than 300 mining claims; the turbines could interfere with radar at two regional air facilities — one military and one civilian; and impacts to the visual landscape,” said Nevada BLM in a statement obtained by Basin and Range Watch.

Such air facilities include McCarran International Airport, a gateway to Clark County’s profitable, job-generating gambling resorts, and Nellis Air Force Base, a key element in the nation’s air defense training that includes air combat and bombing practice ranges that cover a vast swath of central Nevada.

The original denial letter, from the assistant secretary of the Interior Department, also obtained by Basin and Range, mentioned the potential for “a significant threat to military operations” at China Lake Naval Air base 150 miles away in California.

If such turbines can’t be located within 150 miles of such air facilities, where in Nevada, with all its commercial and military aircraft activity, can they be sited?

Dr. Donald Deever of Searchlight warned of just this problem in his 43-page public comment submitted to the BLM in June. He wrote: “As further proof of the devastating frequencies emitted by industrial wind turbines, something that isn’t common knowledge is that in the early years of the first term of President Obama, a feasibility study was commissioned to look into the possibility of transforming the Nevada Testing Site into the world’s largest photovoltaic solar energy plant. Unfortunately, the proposed project was diverted by Senator Harry Reid, who replaced the idea of solar panels with industrial wind turbines. Although Congress approved the project, it was immediately shut down when government engineers and researchers at Area 51 let the President and Pentagon know that the frequencies emitted by industrial wind turbines would completely interfere with America’s advanced stealth technology tests. If the frequencies of industrial wind turbines could overwhelm the circuitry of our country’s most modern stealth circuitry, one can only imagine how much damage it can do to the even more delicate biological systems of all migrating birds, whom scientists now know rely on magnetic fields to accomplish their annual migrations.”

Such limitations on the siting of wind farms near air traffic corridors might have an impact on the implementation of Question 6, should voters approve the proposition again in two years. In November, 59 percent of the Nevada voters approved a change in the state law that currently requires 25 percent of the state’s electric power to come from renewable generation sources such as wind and solar by 2025. Question 6 upped the ratio to 50 percent by 2030, no matter the cost and practicality or whether carbon emissions are actually reduced.

It should be noted that Question 6 passed in only three counties — Clark, Washoe and Mineral. It failed in every other county by wide margins.

Wind and solar eyesores gobble huge tracts of land and the most likely candidates for such projects are generally cheap federal public land, primarily found in rural counties.

Only 22 percent of voters in Lincoln County approved of Question 6, only 26 percent in Eureka, 29 percent in White Pine and Esmeralda and 32 percent in Elko, for example.

Clark County, the site of the rejected Crescent Peak Wind Project, saw 64 percent voter approval.

It will be hard to generate 50 percent of the state’s electricity with solar power, since the sun shines only half the day.

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.