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.

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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.

Editorial: Nevada right to join sanctuary city fight

Protesters in San Francisco (AP pix)

Earlier this month Nevada Attorney General Adam Laxalt joined with nine other attorneys general in filing a friend-of-the-court brief challenging a federal judge’s decision in April to block a President Trump executive order that would deny some federal funding for sanctuary cities.

The judge sided with Santa Clara County, the city of San Francisco and other jurisdictions who argued that taking away federal funds from cities that do not cooperate with federal immigration enforcement could be unconstitutional.

After the order, Trump tweeted: “First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities-both ridiculous rulings. See you in the Supreme Court!”

Laxalt argued that having sanctuary cities near Nevada poses a threat to public safety.

“Sanctuary cities in California endanger Nevadans, especially given their close proximity to us,” said Laxalt in a press release. “In some cases these cities refuse federal requests to temporarily detain illegal aliens with violent criminal histories and instead release these felons into communities that — under federal law — they have no right to be in. Nevada’s Legislature, sheriffs and municipalities have wisely rejected such nonsensical policies, but Nevadans should not be the victims of such policies in other states. Opposition to this extreme form of a ‘sanctuary city’ is pro-immigrant and pro-safety, as safety is a leading concern of our immigrant communities.”

In fact, the brief itself points out that one of the states seeking to overturn the judge’s ruling, West Virginia, is near Baltimore, which has adopted sanctuary city policies and is the source of illegal drugs that spill into West Virginia.

In addition to Nevada and West Virginia, the other states involved include: Alabama, Arkansas, Louisiana, Michigan, Ohio, Oklahoma, South Carolina and Texas.

The brief also shreds the argument that denying federal funds for failing to voluntarily cooperate in immigration law enforcement is unconstitutional by pointing out the case of South Dakota v. Dole.

In that case the Supreme Court held that it is constitutional for Congress to withhold federal funds from states that failed to raise the legal drinking age to 21.

The brief also noted that — unlike another high court case, Printz v. U.S., in which the court said Congress could not force states to conduct gun background checks — the executive order does not require states to assist in enforcing immigration law, but merely prevents states from prohibiting local law enforcement from cooperating voluntarily with the federal government.

Laxalt’s press release notes that all 17 currently elected county sheriffs have consistently opposed sanctuary city policies and that in the vast majority of cases an individual must be arrested for committing a crime and booked into a jail before Nevada lawmen notify immigration authorities.

“So-called ‘sanctuary cities’ have no right — constitutional or otherwise — to enlist the courts in their attempt to subvert lawful federal immigration authority,” added Laxalt. “Especially when sanctuary policies create public-safety threats to neighboring states.”

We applaud the attorney general for sticking up for the rule of law and public safety, at negligible cost to the taxpayers of Nevada.

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: Nevadans welcome review of sage grouse land use plans

Nevada Attorney General Adam Laxalt, who had filed a lawsuit attempting to overturn the Interior Department’s 2015 land use plan to protect greater sage grouse, is praising the recent decision by the Trump administration to review those plans.

Secretary of the Interior Ryan Zinke signed an order establishing an internal review team to evaluate federal and state sage grouse plans and report back to him in 60 days. He specifically called on the review team to consider local economic growth and job creation, as well as protection of the birds.

“While the federal government has a responsibility under the Endangered Species Act to responsibly manage wildlife, destroying local communities and levying onerous regulations on the public lands that they rely on is no way to be a good neighbor,” said Zinke after issuing the order. “State agencies are at the forefront of efforts to maintain healthy fish and wildlife populations, and we need to make sure they are being heard on this issue. As we move forward with implementation of our strategy for sage-grouse conservation, we want to make sure that we do so first and foremost in consultation with state and local governments, and in a manner that allows both wildlife and local economies to thrive. There are a lot of innovative ideas out there. I don’t want to take anything off the table when we talk about a plan.”

Greater sage grouse (BLM pix)

Though Interior decided to not list the sage grouse under the Endangered Species Act, its land use plan essentially barred mineral exploration on 3 million acres in Nevada and locked out most economic activity on 10 million acres in a dozen Western states.

Laxalt was quoted in a press release as saying, “My office remains dedicated to protecting the interests of Nevada and ensuring that federal agencies take our unique needs and concerns into account. We look forward to working with Secretary Zinke to develop a plan that protects the greater sage grouse in ways that recognize Nevada’s expertise and commitment to this important issue, and that also preserves and expands Nevada jobs in sectors like mining and ranching. An intelligent sage grouse plan can do both successfully.”

In October 2015 Laxalt filed suit on behalf of the state and was joined by nine Nevada counties, several mining companies and a ranch. The suit repeatedly stated that the various federal land agencies ignored state and local input on the land use plan.

Nevada’s senior Sen. Dean Heller also welcomed the Zinke review.

“I am pleased that Secretary Zinke is initiating a review of the previous administration’s sage-grouse land use plans and committing to work with those who know how to best protect threatened species: states and localities,”
Heller stated. “As I have consistently maintained, allowing states like Nevada to have a seat at the table as an active participant in the discussion surrounding conservation efforts is central to the viability of the sage-grouse. Moving forward, I am hopeful that the Department of the Interior will partner with Governor Sandoval and the Nevada Sagebrush Ecosystem Council to begin targeting the real threats to sage-grouse and their habitat: invasive species, wildfire, and wild horse overpopulation.”

News accounts quoted Zinke as saying the Republican governors of Nevada, Utah and Idaho all prefer that the sage grouse plans give them more flexibility and rely less on habitat preservation “and more on numbers” of birds in a given state.

Gov. Brian Sandoval has complained in the past about Nevada’s input being ignored. In one letter he stated, “I believe the proposed land withdrawal will not be able to show any measurable results except for the demise of the mineral exploration industry in Nevada. The urgency to implement the withdrawal proposal prior to conducting the proper analysis needed to evaluate the efficacy of the action and socio-economic impact of the action is unclear,” adding that the agencies involved have “provided no science or analysis at any level to support the rationale” for excluding mining operations.

Interior’s draft environmental impact statement estimated its grouse restrictions would reduce economic output in Nevada each year by $373.5 million, cost $11.3 million in lost state and local tax revenue and reduce employment by 739 jobs every year for the next 20 years.

And it all may be for naught. According to a 2015 Western Association of Fish and Wildlife Agencies survey, the population of greater sage grouse had grown by nearly two-thirds in the previous two years — before the implementation of strict land use plans.

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.

Adelson’s fingerprints are everywhere … well, almost

Sheldon Adelson speaks with Secretary of State Rex Tillerson before a speech by President Trump at the Israel Museum on Tuesday in Jerusalem. (AP pix via Haaretz)

The Las Vegas newspaper may have to add a couple of pages just to handle the disclaimers if its owner gets his fingerprints on any more news items.

Today there were, count them, four separate disclaimers.

In the front page story about President Trump being at a museum in Israel there was a mention that the paper’s owner Sheldon Adelson and his wife were in the audience. So at the end of the piece there was the obligatory disclaimer: “The Review-Journal is owned by the family of Las Vegas Sands Corp. Chairman and CEO Sheldon Adelson.”

The disclaimer also appeared at the end of a story about what it would cost to remove the attorney general as legal counsel for various agencies, including the Gaming Control Board. A bill was introduced to do this after the head of GCB secretly taped a conversation with Attorney General Adam Laxalt in which Laxalt asked the GBC to file a brief in a civil court case involving Adelson.

At the end of a story about a languishing bill that would have created an inspector general’s office to audit spending by government agencies there were two disclaimers. The bill was prompted by the newspaper’s reporting of lavish spending by the Las Vegas Convention and Visitors Authority.

The first one notes: “The Review-Journal is owned by the family of Las Vegas Sands Corp. Chairman and CEO Sheldon Adelson. Las Vegas Sands Corp. operates the Sands Expo and Convention Center, which competes with the LVCVA-operated Las Vegas Convention Center.”

The second adds: “The Review-Journal owns the domain lasvegas.com, which is subleased to the Las Vegas Convention and Visitors Authority. The sublease terminates Aug. 2.”

Frankly, the story and its front page placement smelled distinctly of editorializing that would benefit Adelson’s convention business at the expense of his competition.

Oddly enough there were two stories in the sports section about the NFL’s Raiders moving to Las Vegas, but neither mentioned Adelson’s key role as catalyst for the move since he walked away from the deal — keeping his money but still getting the stadium “amenity” largely at taxpayer expense while still being able to put bods in his beds. No mention, no backgrounding, no disclaimers.

Also, pay no heed the fact the legislation that created the stadium funding also created a special oversight committee to monitor the expansion of the LVCVA facilities. Adelson has long opposed the expansion of the publicly funded convention center, contending it unfairly competes with his Sands Convention Center.

The redundant oversight panel could scale back the expansion, which might have been Adelson’s real Machiavellian objective all the time.

 

Guess his fingerprints have been wiped clean from that one, but who knows where they will turn up next.