Newspaper column: Trump administration settles suit over habitat rules

The Trump administration has settled a lawsuit filed by Nevada and 19 other states over Obama administration rules that sweepingly redefined what constituted critical habitat for endangered species and has agreed to rewrite those rules.

The suit, filed in November 2016 against various federal land agencies, accused the federal bureaucrats of essentially rewriting the Endangered Species Act of 1973 (ESA) to give themselves potential veto power over any use whatsoever on every square foot of rural land, public or private, in the country.

Though the ESA gives the U.S. Fish and Wildlife Service authority to protect “critical habitat” occupied by endangered or threatened species, the rewritten rules redefined “critical habitat” to include land currently unoccupied by those species but just might someday, in someway, somehow — as a result of global warming or a meteor strike, perhaps — later become “critical habitat.”

Those rules gave federal agents the power to block or alter any activity — grazing, farming, buildings, mining, recreation, roads, fences, pipelines, ditches, power lines, irrigation, oil and gas exploration — that might somehow adversely affect a potential habitat for certain protected rodents, minnows, bugs, birds, reptiles, beasts and weeds.

The settlement, reached this past week, requires the federal land agencies to submit revised rules for public review within 60 days. The states reserve the right to file another lawsuit if the new rules are unsatisfactory.

“I commend the federal government for agreeing to reconsider rules created in the previous administration that could have severely restricted property owners’ use of their own land,” said Nevada Attorney General Adam Laxalt, who joined the suit, which was filed in Alabama. “If this federal land grab had been implemented, the federal government could have expanded critical habitat designations to include entire states. I am proud of the result of our joint efforts to protect Nevada land from burdensome and unconstitutional federal overreach.” (Critical habitat)

That overreach flew in the face of the ESA’s requirement that “critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species,” except in a circumstance determined by the secretary of the Interior.

Opponents of the rules said they impermissibly relied on hope and base speculation.

The lawsuit also said the rules create huge costs for private landowners and small businesses who must go to the expense of obtaining federal permits in order to make even minor modifications to their own property. Permits could be denied under rules that were obviously arbitrary, capricious and onerous.

Arkansas Attorney General Leslie Rutledge commented on the settlement and said, “Our wildlife must be protected for future generations, but it is completely unreasonable to give the federal government broad authority to restrict land usage just because bureaucrats in D.C. think an animal might, possibly, one day inhabit that land — even if that land does not have features necessary for its survival. These rules are a clear example of an Obama-era overreach that must be changed to protect the rights of land owners and the States.”

Alabama Attorney General Steve Marshall noted Congress had purposefully set a stricter standard for land not occupied by endangered species, saying the Obama administration rules violated the intent of Congress and defied common sense.

“These rules even allowed the federal government to prevent activities it decided could adversely affect habitat features that do not actually exist,” Marshall said. “For example, as the States noted in their complaint, the federal government ‘could declare desert as critical habitat for fish and then prevent the construction of a highway through desert lands, under the theory that it would prevent the future formation of a stream that might one day support the species.’”

Of course, the self-styled environmentalists don’t want any changes. An attorney for the Center for Biological Diversity told E&E News in an email, “We’ll be taking a close look at the revised rules and are likely to challenge them if we identify any departure from the Endangered Species Act’s requirement that the agencies protect habitats essential for species recovery.”

In addition to Nevada, other states participating in this settlement include: Alabama, Alaska, Arkansas, Arizona, Colorado, Idaho, Kansas, Louisiana, Michigan, Missouri, Montana, Nebraska, New Mexico, North Dakota, South Carolina, Texas, West Virginia, Wisconsin and Wyoming.

Over the 45 years since the passage of the Endangered Species Act the return on investment has been practically nil. Only 1 percent of listed species have ever recovered sufficiently to be delisted, despite the law’s huge impact on economic endeavors. Hopefully, the rewritten rules will lessen the impact.

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: PERS should stop trying to hide public records

The Public Employees’ Retirement System should stop wasting taxpayer money and release the records of Nevada public employee retiree payments as the courts previously ordered them to do.
The Reno Gazette-Journal sued for these records in 2013 and won in the state Supreme Court, which found the records are clearly covered under the state public records law. The records were released, but the very next year PERS changed how their files are maintained in an obvious ruse to dodge the clear meaning of the court ruling. PERS now says their files do not contain names of retirees, but only Social Security numbers, which are confidential. They also say the law does not require them to create a new document from existing computer files, even though a past state Supreme Court in another case required just such a document creation.
Nevada Policy Research Institute sued PERS​ and the Supreme Court heard the case this past week.
​This past summer District Court Judge James Wilson spelled out clearly his rationale for requiring the records to be released: “Considering the purpose of the NPRA (Nevada Public Records Act), to foster democratic principles by providing member of the public with access to public books and records; the legislative mandate that courts construe the NPRA liberally to carry out this important purpose; the legislative mandate that any exemption, exception or balancing of interests which limits or restricts access to public books and records by members of the public must be construed narrowly; the lack of evidence that producing the requested information, retiree name, years of service credit, gross pension benefit amount, year of retirement, and last employer would require unreasonable demands or costs on PERS; the fact that PERS altered its procedure in providing information to its actuary to eliminate the names of retirees in part because of the Reno Newspapers decision, the court concludes that PERS does have a duty to create a document that contains the requested information.​”
​During this past week’s hearing Chief Justice Michael Douglas suggested that PERS had “gone out of its way to violate the spirit of the law.” Indeed it has.
All NPRI is seeking is ​ retiree name, payroll amount, date of retirement, years of service, last employer, retirement type, original retirement amount, and cost of living increases.
PERS argues there is some vague possibility of identity theft or fraud if this information is released, though the courts have ruled such supposition cannot outweigh the public’s right to know how their tax dollars are spent.
In fact, the Supreme Court has all ready addressed and adjudicated this in the Reno newspaper suit in 2013, saying, “Because PERS failed to present evidence to support its position that disclosure of the requested information would actually cause harm to retired employees or even increase the risk of harm, the record indicates that their concerns were merely hypothetical and speculative. Therefore, because the government’s interests in nondisclosure in this instance do not clearly outweigh the public’s presumed right to access, we conclude that the district court did not err in balancing the interests involved in favor of disclosure.”
NPRI’s attorney Joseph Becker argued in a brief filed with the court that the law “states that the purpose of PERS is to, ‘provide a reasonable base income to those whose earning capacity has been removed or substantially reduced,’ previously released records indicate that there are retirees in their 40’s collecting six figure disbursements from PERS while still earning income from other sources. … Only through the publication of name, pension payout and related data can the public better understand how the system works and the legislative purpose be effectuated. … Additionally, because lawmakers can directly profit from decisions they make pertaining to PERS, there is an overwhelming need for the public to have comprehensive access to this information.” Seems persuasive to us.
PERS should stop stalling and release the records.
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: Two different approaches to Internet access

When boiled down to its essence, the key difference between the two major political parties is this: Democrats believe government is the solution. Republicans believe government is the problem.
This difference is on display with bills being pushed by two Nevada senatorial candidates — incumbent Republican Dean Heller and challenger Jacky Rosen, currently a freshman congresswoman.
Rosen recently introduced legislation that would reinstate the Obama administration’s 2015 net neutrality rule, which gave the Federal Communications Commission sweeping powers to micromanage the internet. The FCC recently voted 3-2 to remove that rule, saying itwas stifling internet innovation.
“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,” Rosen said in a press release following the introduction of her bill. “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.”

Fiber optic cables. (AP pix)

Actually, according to The Wall Street Journal, the rule 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, just as occurs on congested highways. The newspaper said both content providers and consumers would benefit from increased investment in faster wireless and fiber technology in the free market.
The Journal noted that the new FCC rules “would require that broadband providers disclose discriminatory practices. Thus cable companies would have to be transparent if they throttle content when users reach a data cap or if they speed up live sports programming. Consumers can choose broadband providers and plans accordingly.” Additionally, the Federal Trade Commission would still have authority to police predatory and monopolistic practices as it had prior to the net neutrality power grab.
In an opinion article penned for the online news service The Nevada Independent, Rosen made the specious argument, “Nevada families should not be forced to pay more for slower Internet because big telecommunications corporations want to increase their profits,” showing the customary Democratic disdain for profits. She also claimed, “Without net neutrality, rural communities, who are often limited to only one Internet service provider, could find themselves at the mercy of a single provider,” ignoring the fact that curbing profits ensures the continuation of such monopolies.
As for rural communities, Heller has offered a bill that would help cut through the thicket of government bureaucracy to actually speed up private internet investment, innovation and construction. Noting 85 percent of the land in Nevada is controlled by various federal land agencies, Heller’s bill would create a 270-day clock for the Interior Department and the Forest Service to approve or deny applications for easements or rights-of-way across federal land for broadband infrastructure projects. If the federal agencies miss the deadline, the application is deemed approved. If the application is denied, the agency must explain the reason for denial.
The bill further requires the federal agencies to establish regulations within one year that reflect a streamlined, consistent, and standardized process for application review.
“Access to high-speed broadband is a pillar of economic growth in the U.S., yet Nevada’s rural communities continue to lag behind because bureaucratic red tape prevents expansion of broadband infrastructure,” Heller said in a press release. “Given that nearly 85 percent of Nevada is owned by the federal government, many applications to deploy broadband on federal lands remain stalled in a lengthy interagency approval process. From Ely to Pahrump, I continue to hear that this bureaucratic hurdle is stifling innovation and job creation in our rural communities.”
Asked via email for comment on this topic, Heller’s Republican primary challenger Danny Tarkanian replied, “Overall, I believe in the most freedom-centered version of the internet possible. Technology, on the whole and more specifically the internet, are a boon to democracy and have done more to lend a voice to the people than just about any modern invention. Keeping the internet as an instrument of free-communication as well as of commerce are essential to the cause of liberty.”
Tarkanian added that he opposes any regulation that allows carriers to restrict access or create false tiers with which to charge customers increased rates for service.
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.

Case law did not create a public records balancing test for bureaucrats

The morning newspaper today began a series of articles marking Sunshine Week, which was created to shine a light on the need for governmental transparency.

That is a laudatory endeavor. The lede story quotes  attorney Maggie McLetchie, who has represented the paper in a number of lawsuits seeking public records, as saying, “We could file one of these lawsuits everyday (sic) … But, fundamentally, you shouldn’t have to pay a lawyer to get access to records of taxpayer-funded agencies. The whole point is that the government works for us, the people, and we should be able to evaluate the work of the government.”

Or as I wrote in this past week’s newspaper column: “The point is that for the public to be able to perform its democratic role in voting into or out of office the most suitable personages, they must be kept informed as to how well or ill the current office holders and their minions are doing their jobs.”

But today’s story contained a fundamental misstatement of case law.

It said the case of Donrey v. Bradshaw “allowed governments to withhold records not deemed confidential if officials decide secrecy is in the best interest of the public.”

No, as I wrote in 2013, Donrey v. Bradshaw was a victory for the media.

A Reno television station, which was then owned by the same company that owned the Las Vegas newspaper, requested a police investigative report on brothel owner Joe Conforte. The Reno city attorney had dismissed charges of contributing to the delinquency of a minor against Conforte even though police opposed the dismissal. Such reports are by law confidential.

The Nevada Supreme Court applied a balancing test and found that “weighing the absence of any privacy or law enforcement policy justifications for nondisclosure against the general policy in favor of open government” that the scales tipped in favor of release of the records.

But, ever since then local governments have been applying the balancing test to argue that records clearly public should be confidential, even though there is no specific law saying so. That argument has been used to deny access to everything from employee evaluations and salaries to cell phone records of county commissioners.

Judges, not  bureaucrats with vested interests, should be the only ones who may apply a balancing test to determine whether a record is open for inspection.

The case of Donrey v. Bradshaw did not allow government bureaucrats to do so. The courts or lawmakers should make this clear, though we suspect lawmakers would opt for less transparency.

Let the sun shine in.




Editorial: How schools must handle diverse gender identities

In 2017 Nevada legislators passed a bill requiring schools in the state to establish policies for “addressing the rights and needs of persons with diverse gender identities or expressions.”

A month ago the state Department of Education published a draft spelling out changes to the Nevada Administrative Code to comply with the law. As written, the policy requires all school personnel and students to not only accommodate but support those born with one gender but who “identify” as the opposite gender.

“Each school or school district shall address the rights and needs of persons with diverse gender identities or expressions on an individualized basis to foster the safe and healthy development of the gender identity and expression of each pupil,” the policy states.

It also requires schools to create measures that “ensure that each person governed by the policy, including, without limitation, each employee, volunteer and pupil, does not use names and pronouns other than the names and pronouns identified by the parent or guardian of a pupil, as recorded through the registration and enrollment process of the school or school district, in reference to or in any verbal or written communication with the pupil …” Even students are required to toe the politically correct line.

It also requires all school board members and all school employees to under go “annual training concerning the requirements and needs of persons with diverse gender identities or expressions.”

Though the changes in the law are often described as an effort to counter school bullying, the requirement that schools “prevent discrimination, harassment, bullying and cyber-bullying based on the gender identity or expression of a person” takes up two lines out of the 57-line policy.

Of course, the aspect that will be of a greatest concern to parents and students is the use of facilities such as restrooms, locker rooms and showers that have long been customarily segregated by biological gender. In that regard the policy does not allow schools to “discriminate or segregate according to gender identity or expression …” referring specifically to physical education, assemblies, dances, ceremonies and other school activities.

The policy also states that sports participation should be “in accordance with the regulations and policies of the Nevada Interscholastic Activities Association …”

Four years ago the NIAA published a little-noticed “position paper” on gender identity participation.

“A transgender student athlete at the high school level shall be allowed to participate in a NIAA sanctioned sport in accordance with his or her gender identity irrespective of the gender listed on the student’s birth certificate or other student records, and regardless of whether the student has undergone any medical treatment,” the paper declares. “This policy shall not prevent a transgender student athlete from electing to participate in a sanctioned sport according to his or her assigned birth gender.”

The paper is silent as to the use of the aforementioned facilities.

The new administrative code appears to leaves little room for school districts to establish any other accommodations for the gender diverse.

Though it sweepingly demands that schools create methods “to ensure the protection of the privacy of each person governed by the policy …” it is silent on how to protect the privacy of those who identify with the gender with which they were born. How much will it cost to build private restrooms, locker rooms and showers for everybody?

All females are born with a pair of XX chromosomes and all males with an XY pair. No amount of wardrobe changes, makeup, hairstyling or surgical mutilation will alter that. Nor will laws and policies designed to accommodate the delusion.

We thought you ought to know what is coming to a school house near you.

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.


Editorial: Second Amendment is not a second-class right

Do the courts treat the Second Amendment like a second-class right?

Supreme Court Justice Clarence believes they do and makes a compelling argument.

This past week the U.S. Supreme Court refused to hear an appeal of a 9th U.S. Circuit Court of Appeals ruling upholding a California law requiring a 10-day waiting period for the purchase of any firearm. Justice Thomas penned a scathing 14-page dissent.

“The Second Amendment protects ‘the right of the people to keep and bear Arms,’ and the Fourteenth Amendment requires the States to respect that right …” Thomas writes. “Because the right to keep and bear arms is enumerated in the Constitution, courts cannot subject laws that burden it to mere rational-basis review.”

Thomas says the 9th Circuit upheld the 10-day waiting law based solely on its own determination that it was “common sense,” without requiring any supporting evidence and without acknowledging a lower court’s factual findings that caused it to agree with plaintiffs that the law was unconstitutional when it was applied to people who already own guns, because it would not serve as a “cooling off” period for those who might use a firearm to harm themselves or others.

Thomas’ dissent notes that the 9th Circuit ignored the testimony previously given despite the legal requirement to weigh its validity. “California’s expert identified only one anecdotal example of a subsequent purchaser who had committed an act of gun violence, and the expert conceded that a waiting period would not have deterred that individual,” the justice observes, noting the appellate court allowed California to justify its waiting period with mere “rational speculation unsupported by evidence or empirical data …”

The courts are picking and choosing what constitutional rights to favor and which to ignore, Thomas argues, calling it “emblematic of a larger trend.” For example, the 9th Circuit struck an Arizona law that established a “cooling off” period for a woman seeking an abortion. It also invalidated a county ordinance requiring a five-day waiting period to obtain a nude-dancing license because it interfered with the First Amendment right of free expression. In another case, the 9th held that laws embracing traditional marriage failed because they were based on no evidence other than speculation, though such law reflects “thousands of years of human history in every society known to have populated the planet.”

Thomas does not let his own court off without a few verbal wrist slaps. He notes, “We have not heard argument in a Second Amendment case for nearly eight years. … And we have not clarified the standard for assessing Second Amendment claims for almost 10. Meanwhile, in this Term alone, we have granted review in at least five cases involving the First Amendment and four cases involving the Fourth Amendment — even though our jurisprudence is much more developed for those rights. If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari.”

The four liberal members of the court are singled out for chiding by Thomas. He says those four would have agreed to hear a case involving a 10-day cooling off period for abortion or a case involving a 10-day cooling off period for publication of racist articles or a case involving even a 10-minute delay at a traffic stop while a dog sniffed the vehicle.

“The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights,” Thomas writes. “The right to keep and bear arms is apparently this Court’s constitutional orphan.”

All enumerated rights in the Constitution should be accorded their proper respect and none relegated to a second-class status, subject to different standards.

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.


Editorial: Wild horse issue needs a compromise solution

Let the caterwauling continue.

The headline over a press release by a group calling itself the American Wild Horse Campaign reads, “80+ Organizations Oppose Trump Administration Plan to Slaughter America’s Mustangs.”

The trigger for the press release — more a fundraising appeal than legitimate polemic — was the release of the Interior Department’s FY2019 budget.

The budget includes this language: “The 2019 budget continues to propose the elimination of appropriations language restricting BLM’s use of all of the management options authorized in the Wild Free-Roaming Horse and Burro Act. This change will provide BLM with the full suite of tools to manage the unsustainable growth of wild horse and burro herds.”

Similar language was in the FY2018 budget, which has yet to be approved.

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

You see, 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.”

Suzanne Roy, executive director of the American Wild Horse Campaign, was quoted as saying in the press release: “Americans want our wild horses and burros protected, not brutally killed and slaughtered.”

Roy was further quoted as saying the horse advocacy groups support a humane and scientific path for wild horse management.

Yet when the Elko district of the Bureau of Land Management submitted a plan to control the wild horse population with fertility control and gathers without ever mentioning euthanizing excess horses, one of those advocacy groups sued saying such action upset the “social organization, band integrity, and expression of a natural behavior repertoire.”

Though wild horses are dying of starvation and thirst on the depleted and drought-stricken range, the self-styled advocates offer only litigation and wild claims. Letting the status quo continue is hardly humane.

When this issue came up in the House Appropriations Committee a year ago Nevada Republican Rep. Mark Amodei, who supported a return to the language in the 1971 law, said during debate, “First let me say I hate this issue and I think everybody here hates this issue. The reality is we have a problem. We have to face it and we have to deal with it. … You think you’re being kind to horses? You’re not. Letting them starve out on the range? … Nobody’s adopting these things — these horses. Not very many people anyway.”

According to the BLM, if nothing is done, by 2020 there will be 130,000 wild horses and burros on BLM-controlled lands, though the range can sustain only 27,000.

That doesn’t count the 45,000 formerly wild horses and burros currently being kept in off-range pens and pastures at a cost of $50 million a year.

In is unlikely Congress will ever approve the wholesale slaughter of wild horses, but there should be a middle ground compromise that handles horses humanely, saves taxpayers money and protects the range, wildlife and agricultural interests.

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.