Newspaper column: Constitution stretched to the breaking point

A Utah prairie dog peeks out of an artificial burrow after arriving at a remote site in the desert, some 25 miles away from Cedar City, Utah. (AP pix via WSJ)

If words can mean anything anyone says they mean, then words are meaningless. That is what the 10th U.S. Circuit Court of Appeals has done with the Commerce Clause of the Constitution.

The appellate court overturned a federal judge who found that the Commerce Clause does not give Congress the power under the Endangered Species Act (ESA) to regulate a species that exists only within the boundaries of one state and has no commercial value whatsoever — specifically the Utah prairie dog.

Nevada has joined with Utah and 21 other states to ask the U.S. Supreme Court to strike the circuit court ruling, saying that if the ruling stands “then Congress has virtually limitless authority, and the Tenth Amendment is a dead letter,” as well as the concept of federalism. (prairiedogamicusbrief)

If Nevada is to have any control over any economic activity within its borders, which include numerous endangered and threatened species, it is vital that the high court reverse this Constitution-rendering exercise in legerdemain.

The circuit court judges stretched the meaning of the Commerce Clause — which gives Congress the power to regulate interstate commerce in order to promote commerce by preventing interstate tariffs — to include anything Congress could imagine in its wildest flights of fantasy.

“We conclude that Congress had a rational basis to believe that regulation of the take of the Utah prairie dog on nonfederal land is an essential part of the ESA’s broader regulatory scheme which, in the aggregate, substantially affects interstate commerce,” the circuit court ruled, without any hint as whether that conclusion was at all rational rather than delusional sophistry.

The judges dived further into base speculation by stating, “‘ESA’s drafters were concerned by the “incalculable” value of the genetic heritage that might be lost absent regulation,’ as well as observing that the majority of takes of species ‘result from economic activity …’” Might that incalculable value be zero? Species became extinct before mankind arrived on the scene.

The amicus brief filed by the attorneys general of 23 states paraphrased the 10th Amendment in the Bill of Rights by stating, “The Framers correctly concluded that both restraints – separation of powers and federalism – are necessary to preserve individual liberty and avoid tyranny. So powers not given to the federal government are reserved for the States and the people. But federalism serves its purposes only if the federal-state interplay remains properly balanced. That means courts must ensure that the federal government operates only within its enumerated powers so the States can function within their proper spheres.”

Adding insult to constitutional injury is the fact the state of Utah was actually doing a better job of protecting the prairie dog population than the U.S. Fish and Wildlife Service.

The Fish and Wildlife rules made it a federal crime to “take” the Utah prairie dog — which means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect — without first obtaining time-consuming and expensive federal permits. Meanwhile, the burrowing prairie dogs were damaging parks, sports fields, airports and cemeteries and preventing the construction of homes and businesses. Especially hard hit is the small college town Cedar City.

During the time after the federal judge blocked the Fish and Wildlife rules the state of Utah spent a considerable amount of money to move the prairie dogs from population centers to remote and safer conservation areas, allowing the population to boom from a low of 24,000 in 1984 to an estimated 80,000 today.

The original lawsuit was brought by 200 private property owners calling themselves People for the Ethical Treatment of Property Owners. They were represented by the Pacific Legal Foundation (PLF), which litigates on behalf of personal liberty and property rights.

“For decades, the federal government’s harmful Utah prairie dog regulation has prohibited residents of Cedar City from doing things that most of us take for granted in our own communities,” PLF attorney Jonathan Wood is quoted as saying in a press release. “They have been blocked from building homes, starting small businesses, even protecting playgrounds, an airport, and the local cemetery from the disruptive, tunneling rodent.

“The Commerce Clause has long been a source of federal mischief, but the Supreme Court has never allowed it to be stretched this far,” Wood noted. “With their prairie dog regulation, federal bureaucrats have asserted control over local activities that are not interstate commerce, do not affect interstate commerce, and are not necessary to any federal regulation of interstate commerce.”

If the words of the Constitution are so malleable, it has no meaning and Congress is our dictator.

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.

Advertisements

Newspaper column: Gun law backers too wily for their own good

The backers of a 2016 ballot initiative to create a state law requiring criminal background checks for all private party gun sales — something not required by federal law — are asking the courts to fix a fatal flaw that they themselves created.

Failure to comply with the Background Check Act requirement would carry a penalty of up to a year in jail and a $2,000 fine — if it were enforceable.

The measure, Question 1 on the November ballot, passed with a mere 50.45 percent of the vote, failing in every county except Clark.

The initiative backers — in order to avoid having a fiscal note saying what the mandatory background checks would cost taxpayers, something that might cost votes — wrote the new law to say that those in involved in a private gun sale must contact a licensed gun dealer to conduct a background check and: “The licensed dealer must contact the National Instant Criminal Background Check System [NICS], as described in 18 U.S.C. § 922(t), and not the Central Repository, to determine whether the buyer or transferee is eligible to purchase and possess firearms under state and federal law …”

The Central Repository is handled by the Nevada Department of Public Safety and uses NICS data as well as state and local data to run background checks required by federal law and those sought voluntarily by private gun sellers.

After the initiative passed the FBI was twice asked if would conduct the private sale background checks for the state, but refused, saying state law “cannot dictate how federal resources are applied.”

Attorney General Adam Laxalt’s office issued an opinion saying the law is unenforceable since the state could not force the federal government to perform the background checks and the law specifically prohibits the state from doing so.

The lawsuit filed earlier this month on behalf of three individuals names Gov. Brian Sandoval and Laxalt as defendants. The suit asks the court to force Sandoval to enforce the background check law or, in the alternative, to sever any portion of the law that is invalid or unenforceable. In other words, rewrite the law that the voters so narrowly approved.

Like most laws the Background Check Act contains a severability clause that states if any portion of the law is found invalid or unconstitutional that should not affect the law as a whole because that part could be excised. But the section that the suit seeks to remove was placed there specifically to avoid incurring cost to the taxpaying voters. Without that section the election outcome might well have been different.

On the day the suit was filed Laxalt sent an opinion to the governor telling him that he has the authority to again ask the FBI to conduct private sale backgrounds, but that the request would be “unique and unprecedented” and might jeopardize the state’s current status in which it conducts all federally required and voluntary private sale background checks.

In the December opinion declaring the Background Check Act unenforceable, Bureau Chief Gregory Zunino pointed out that the state-run background checks are in fact superior to those run through just the federal database.

“Because background checks run through Nevada as the Point of Contact incorporate data from both NICS and Nevada’s own state records, the process as currently administered by the Department ensures that persons legally barred from firearms possession do not circumvent the bar simply because the FBI may lack records that Nevada possesses, like mental-health records, records of domestic violence, misdemeanor criminal records, arrest reports, and restraining orders,” Zunino noted. “By having Nevada serve as the Point of Contract, a wide net is cast. The FBI recently suggested, for instance, that the lack of Point of Contact program in South Carolina played a role in Dylan Roof acquiring a gun before murdering nine congregants at a church in Charleston, South Carolina.”

It should be noted that the gunman who fired into a country music concert from the 32-second floor of the Mandalay Bay killing 58 and injuring about 500, obtained his dozens of weapons legally, passing all required background checks in Nevada and several other states.

The initiative was a futile gesture at best, but the backers outsmarted themselves by trying to hide its true cost from the voters.

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: Commerce tax is unnecessary and burdensome

Gov. Brian Sandoval has been crying about a paper cut as though it were an amputation.

Ever since Attorney General Adam Laxalt stated that he would run for governor next year and one of his platform positions would be the repeal of the 2015 commerce tax, Sandoval has been lobbing brickbats, even though Laxalt suspended his campaign announcement just hours after the Mandalay Bay shooting massacre that left 58 dead and about 500 injured at an outdoor country music concert.

“Anyone supporting a repeal of the Commerce Tax must explain to Nevada’s children, families and businesses which education initiatives will be cut if it is eliminated,” Sandoval wailed in a statement reported by the website Nevada Independent. “Will they cut gifted and talented programs, end all-day kindergarten, eliminate special education resources, decrease literacy programs that help students read by third grade, cut autism funding, stop career and technical education, and get rid of technology in schools grants? Any discussion of eliminating this revenue source must include answers about where in the budget they will cut.”

The commerce tax is a tax on gross receipts on all businesses grossing more than $4 million a year. It has different tax tables for 27 different industries — ranging from a low of 0.056 percent for mining to a high of 0.362 percent for rail transportation — and there are 67 different tax brackets. It is costing businesses untold millions to comply with all the paperwork needed to enforce and collect the tax and the state must spend millions to enforce tax compliance.

Lawmakers passed the commerce tax at Sandoval’s urging as part of his $1.5 billion tax increase, even though the voters in November 2014 rejected a commerce tax at the ballot box by 79 percent to 21 percent.

In May the Economic Forum, which is tasked with estimating state general fund revenues so lawmakers can dodge blame for overestimating, found the state would rake in $140 million more than anticipated this year. The commerce tax raised a mere $190 million, meaning that with just a $50 million nip and tuck in the budget the tax could be eliminated and the budget balanced.

It should be further noted that the general fund budget grew 12.3 percent over the previous two years, while inflation amounted to 2.5 percent. Since 2011 the state general fund budget has grown by 32.3 percent, while inflation amounted to 7.9 percent.

Sandoval, who is term-limited and may not seek re-election, continued his tirade at a meeting in Las Vegas this past week where he told reporters, “I think if somebody’s going to make a proposal like that, they’ve got to stand in a schoolroom with a room full of parents and teachers and be able to explain who they’re going to cut.”

He asked rhetorically whether the cuts would be special education, gifted and talented, technology or something else.

Apparently no one pointed out to him that Nevada has increased K-12 public school funding by 80 percent per pupil, adjusted for inflation, over the past four decades, during which student test scores have actually fallen slightly.

Might other things besides education be trimmed? Might the growth in overall state spending ever be curbed?

Didn’t lawmakers just agree to spending $750 million in tax money to build a domed football stadium? Hasn’t the state doled out $1.7 billion in tax credits to Tesla, Amazon, Switch and other billion-dollar companies?

If Sandoval is so concerned about priorities, he could look at the total budget.

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: Federal judge dismisses overtime rule change

A Texas federal court judge has struck down a rule change by Obama’s Labor Department that would have cost employers $1.2 billion a year by requiring overtime for an additional 4.2 million workers — or in reality, however many workers actually still had jobs after the costs were imposed.

The legal challenge was spearheaded by Nevada Attorney General Adam Laxalt on behalf of 21 states and a number of business entities.

The overtime rule change would have increased the minimum salary level for employees exempt from overtime — due to being engaged in executive, administrative or professional duties, so-called EAP workers — from $23,660 a year to $47,476.

U.S. District Judge Amos Mazzant of Sherman, Texas, this past week ruled the salary qualification increase violated the clear intent of Congress when it passed the Fair Labor and Practices Act in 1938, which established minimum wages and required time-and-a-half overtime pay for hourly workers who work more than 40 hours a week. EAP employees were exempted from overtime requirements.

Judge Mazzant wrote, “This is not what Congress intended with the EAP exemption. Congress unambiguously directed the Department to exempt from overtime pay employees who perform ‘bona fide executive, administrative, or professional capacity’ duties. However, the Department creates a Final Rule that makes overtime status depend predominately on a minimum salary level, thereby supplanting an analysis of an employee’s job duties.”

He said nothing in the law allows the Labor Department to make salary rather than an employee’s duties determinative of whether an employee should be exempt from overtime pay.

“I applaud Judge Mazzant’s decision to permanently invalidate this Obama-era overtime rule that would have imposed millions of dollars of unfunded liabilities on the States and resulted in a loss of private sector jobs as well as onerous financial and regulatory burdens on small businesses in Nevada and around the country,” said Laxalt in a press release. “My office is proud to have led the charge towards a final ruling that brings clarity, certainty and closure to the business community and government alike.”

Additionally, Nevada’s senior Sen. Dean Heller, who has been challenging the overtime rule since it was proposed, put out a press release stating, “The former Obama Administration’s expansion of the federal overtime rule would have devastated Nevada’s business owners and job creators. Since the rule was issued last year, I have been strongly concerned about its impact because it would fundamentally change how employers compensate their workers, reducing Nevadans’ work hours and benefits. I’m pleased to see that a federal judge acknowledged the regulation’s harmful consequences and ruled it invalid today.”

Heller also commended Laxalt for leading the fight against the overtime rule change.

In addition to Nevada, the other states challenging the overtime rules were Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, New Mexico, Ohio, Oklahoma, South Carolina, Texas, Utah and Wisconsin. Missouri, Colorado, Montana and Wyoming filed friend of the court briefs backing the challenge.

In June, Trump’s Labor Department announced that it too wants salary level to count in deciding who is eligible for overtime pay, but it did not endorse the Obama administration’s salary level. The Labor secretary should heed Mazzant’s reasoning and the clear language of the law as it is currently written. If any changes are contemplated, they must be voted on by Congress.

This effort on behalf of Nevada’s state and local government employers, as well as countless businesses was well worth the time, effort and expense to save jobs and businesses.

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: Court ruling puts state water rights in jeopardy

Nevada is taking the lead in challenging a recent 9th U.S. Circuit Court of Appeals opinion that has the potential to obliterate more than a century of state water rights law.

The office of Nevada Attorney General Adam Laxalt this past week filed an amicus brief with the U.S. Supreme Court, in conjunction with nine other states, asking the court to hear the case on appeal.

The 9th Circuit ruling granted groundwater rights to the Agua Caliente Band of Cahuilla Indians, whose reservation is in California’s arid Coachella Valley, though the local water district had held those rights for years and sold water to the reservation and other communities. The court held that state water rights are preempted by federal reserved rights, implying that water under any federally controlled land could be wrested from existing water rights holders.

Agua Caliente reservation

“As the driest state in the nation, Nevada has a paramount interest in the rules governing the management and allocation of the scarce water resources within its borders,” the 19-page amicus brief notes. “Nevada has the highest percentage in the nation of land under federal ownership or control, with a large portion of that land subject to possible claims of federal reserved water rights.”

The other states signing onto the legal action are Arizona, Arkansas, Idaho, Nebraska, North Dakota, South Dakota, Texas, Wisconsin and Wyoming.

Among other things the brief argues that under the Tenth Amendment states retain substantial sovereign powers with which Congress may not easily interfere. In fact, the Supreme Court itself has stated that if Congress attempts to preempt a traditional and essential power exercised by a state that “it must make its intention to do so ‘unmistakably clear in the language of the statute.’”

Laxalt was quoted in a press release as saying, “By filing this brief, my office encourages the Supreme Court to take the necessary steps to clarify the States’ groundwater rights and to ensure Nevada’s best interests are being protected from unnecessary and unwarranted federal interference. As I have consistently demonstrated throughout my tenure as Nevada’s attorney general, my office stands ready to defend our state from unlawful federal overreach regardless of the source.”

Compounding the problem created by the 9th Circuit water usurpation is the fact that in Nevada, as in other Western states, many of the groundwater aquifers are already fully appropriated and have been for nearly 100 years. Any new claim for water under federal land would result in an overallocation, possibly requiring the relinquishing of long-held water rights used by ranches, farms, manufacturing, mining and communities — in some cases depriving families of their livelihoods.

“Current rights holders may see their investment backed decisions evaporate,” the court document relates.

Another argument is that groundwater rights could not have been assumed to be part and parcel of any federal land holding since at the time of its acquisition the technology to economically access groundwater was virtually nonexistent.

But somehow the 9th Circuit judges managed to contort a 1908 Supreme Court ruling that barred the damming of a river that flowed through a Montana Indian reservation as also bestowing groundwater rights. The judges asked whether the water was “envisioned as necessary for the reservation’s purpose at the time the reservation was created,” and answered with a totally implausible affirmative.

The Agua Caliente case has already been wielded in federal court as an argument against Nevada’s longstanding practice of allocating groundwater through the state engineer’s office.

During a hearing a couple of weeks ago on lawsuits over the Southern Nevada Water Authority’s attempt to tap groundwater in valleys in White Pine, Lincoln and Nye counties, an attorney representing various Shosone tribes cited the 9th Circuit ruling as giving the reservations priority groundwater rights despite the state engineer’s granting of water rights to SNWA.

The states’ amicus brief challenging the presumptive federal water rights argument concludes: “Courts cannot simply presume that Congress considered, let alone intended, to displace the States’ traditional authority over groundwater when (1) not only is the enabling act creating the reservation silent about water rights, but also (2) it was not even feasible, much less contemplated, that groundwater would be used.”

Much is at stake in this case, especially here in Nevada, where the federal government already controls 85 percent of the land and also would control much of the water underneath that land if this ruling is not reversed.

The lives and livelihoods of thousands of Nevadans, especially rural Nevadans, could be in jeopardy.

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.

Interior Department orders relaxing of sage grouse habitat restrictions

This week Interior Secretary Ryan Zinke ordered the implementation of recommendations from a team that reviewed the previous administration’s draconian land use restrictions under the guise of protecting sage grouse. The team — which included officials from Interior, Fish and Wildlife Service, Bureau of Land Management, U.S. Geological Survey, the U.S. Forest Service and representatives from the 11 affected states — called for lifting certain restrictions that impacted economic activity without actually affecting sage grouse populations.

Zinke’s 55-page order echoed criticisms that were included in various lawsuits brought by several states, including Nevada. Zinke’s order says the changes are not one-size-fits-all, the very words used by Nevada Attorney General Adam Laxalt a year ago about litigation he had filed to block the land use restrictions.

Shortly after Zinke announced the changes, Laxalt lauded the move, saying, “I am glad to see this progress on an issue important to so many Nevadans. I agree with Secretary Zinke that the federal government and Nevada can protect the sage-grouse and its habitat, while also ensuring that conservation efforts do not undermine job growth and local communities.”

Nevada’s lawsuit accused the various federal land agencies of violating the law and ignoring scientific evidence when it concocted a 341-page pronouncement in 2015 that 10 million acres of public land in 16 Western states — nearly a third of that in Nevada — would be taken out of consideration for future mining claims, as well as oil and gas drilling near breeding grounds and that there would be additional reviews on grazing permits. The plan envisioned restrictions on grazing, resource development, solar and wind energy, and public access on more than 16 million acres of public land in Nevada altogether. This was being done even though the government declined to list the sage grouse under the Endangered Species Act.

Specifics in Zinke’s order include recognizing that “proper livestock grazing is compatible with enhancing or maintaining Greater Sage-Grouse (GRSG) habitat” and orders incentives be used to encourage grazing practices that improve conditions conducive to grouse habitat.

While the previous administration failed to even consider predator control as a means of protecting grouse, the Interior Department order calls for research into both lethal and non-lethal predator control. In 1989, the Nevada Department of Wildlife planted 1,400 chicken eggs in 200 simulated grouse nests during the 15-day period when sage hens lay their eggs. All the eggs were destroyed by predators, mostly ravens.

The order also recognizes the need to reduce the overpopulation of wild horses and burros that eat and trample sage grouse habitat, something the previous administrations have been lax about.

It also discusses the need to fund fire fuel reduction and fighting invasive species. It also anticipates flexibility to allow the development of both fluid and solid minerals.

It even calls for experimenting with captive breeding of grouse to enhance the population.

 

 

Editorial: Return authority over intrastate water to the states

The Environmental Protection Agency announced this past week that it is moving to rescind the Obama administration’s 2015 rules that defined the “waters of the United States” (WOTUS) under the Clean Water Act of 1972 as every stream, ditch, wetland or mud puddle that might eventually after a deluge spill a few drops into any rivulet that might occasionally be navigable with an inner tube.

As the courts have noted, the Clean Water Act was intended to give the EPA and the Army Corps of Engineers and other federal agencies authority over “navigable waters” only.

President Trump signed an order in February instructing the EPA to consider repeal and replacement of Obama’s EPA water rules.

Now the EPA is beginning the process of rewriting the rules, hopefully to take into account the role and authority of the states over intrastate water resources.

“We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses,” said EPA administrator Scott Pruitt in a press release. “This is the first step in the two-step process to redefine ‘waters of the U.S.’ and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public.”

As it now stands with this order and several court rulings, including one from the U.S. 6th Circuit Court of Appeals, the EPA is enforcing clean water rules that were in place prior to the 2015 attempted usurpation of power.

Pruitt would do well to lift heavily from a June 19 letter to him from the attorneys general of 20 states, including Nevada’s AG Adam Laxalt, which offers suggestions on how to include input from the states and retain state jurisdiction over intrastate waters.

Laxalt was one of 23 attorneys general who backed a lawsuit that went all the way to the Supreme Court and resulted in the court saying property owners have a right to sue in court over EPA permitting determinations under WOTUS rules. The federal agencies had circuitously contended that property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

The attorneys general letter notes the burden the Obama era rules were on land owners, because the discharge of any pollutant — be it mere soil, rocks or sand — required obtaining a permit that is excessively expensive and takes years to obtain.

In that Supreme Court case Chief Justice John Roberts noted that a specialized individual permit, such as the one sought by the plaintiffs, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required.

Further, discharging into “waters of the United States” without a permit can subject a farmer or private homeowner to fines of up to $51,570 per violation, per day.

The attorneys general noted that the Obama water rules violated the Constitution by intruding on the states’ reserved authority under the 10th Amendment and usurped Congress’s authority under the Commerce Clause. They called for an approach that would allow the states the flexibility to design state law in order to protect the water resources within their borders. “It also would provide any state for which EPA attempts to designate certain waters an opportunity to explain to EPA why its regulatory program is sufficient to protect those waters and contest EPA’s determination that those waters significantly affect navigable waters,” they wrote.

It is time to return those 10th Amendment rights to the states.

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.