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.

 

 

Sandoval seeks to end controversy over lawyers’ taped talk about lawsuit

Well that should settle that piece of politically inspired legislation.

According to the morning newspaper, Gov. Brian Sandoval told a Reno radio station Monday he does not support creating a general counsel to legally represent agencies such as the Gaming Control Board and remove the office of attorney general from that role. Sounds like a promise to veto.

The proposal is contained in Assembly Bill 513, which was put forward by Democratic Assemblywoman Maggie Carlton of Las Vegas in response to learning that the head of the Gaming Control Board, A.G. Burnett, had secretly recorded a conversation with Attorney General Adam Laxalt, in which Laxalt asked Burnett to consider filing an amicus brief in a private civil lawsuit involving casino and newspaper owner Sheldon Adelson.

Burnett declined Laxalt’s request, and the lawsuit has since been settled.

A transcript of the conversion given to the Legislature shows Laxalt, a Republican who is contemplating running for governor, arguing his purpose was to protect the confidentiality of state gaming records.

When the matter first surfaced as a political issue, Fox News reported that Carlton and another assemblywoman released a joint statement saying, “Attorney General Adam Laxalt’s attempt to pressure the Nevada Gaming Control Board to interfere in a private civil lawsuit involving a gaming licensee, with whom he has longstanding connections, is unsettling. … Records obtained by legislative subpoena suggest that the Attorney General has created a conflict of interest and that he should not continue to serve as counsel to the Gaming Control Board.”

Laxalt and Burnett (R-J pix)

Laxalt quickly responded in kind.

“Nearly every outside independent analyst has recognized how partisan this Legislature has become,” the office said in a statement obtained by Fox News.  “Today’s news proves the point — Nevada’s Democrat politicians will stop at nothing — including twisting and politicizing a routine action that previous attorneys general, including Catherine Cortez Masto, have taken. We look forward to exposing this for what it is: a political attack designed to distract from the Democrats’ radical agenda that harms Nevada’s working families.”

Both Laxalt and Burnett were asked about their conversation during a joint legislative committee meeting this past week and both talked about protecting confidential gaming records. Burnett said he thought the matter was settled. He had turned the recording over to the FBI, which found no criminal wrongdoing.

Sandoval told the Las Vegas newspaper, which is owned by Adelson, “I think everybody agrees that this is an isolated incident and that there’s no need to provide for independent counsel.”
Adelson is a major contributor to Republican campaigns, including those of Laxalt and Sandoval.
Sandoval went on to add, “It was important to have that hearing. It was important to get the facts out there. But now that all the facts are out there, I think everybody understands that it’s time to move on. And as I said, having spoken with regulators, they’re comfortable with the representation they’re getting.”

There are still some lingering question about the behavior of both Laxalt and Burnett — Laxalt’s appearing to seek to gain legal footing for a contributor and Burnett’s secretly recording the conversation.

Laxalt issued a statement earlier in an attempt to explain his reason for the meeting, “The Attorney General’s Office was approached by the Sands Corporation asking us to file an amicus brief about NRS 463 — a statute that protects the confidentiality of documents submitted to the Gaming Control Board. I’ve made it a practice to personally advise and meet with my clients on a regular basis. As a Nevada statewide elected official, I also meet with constituents all the time on issues that are important to the State and our clients.”

As for Burnett, the state’s rules for professional conduct of attorneys state, “It is professional misconduct for a lawyer to: …  (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation …”

But an online discussion by two law professors as to whether it is ethical for a lawyer to secretly record another appears to cloud issue and leave the matter as a state-by-state question:

The ethics of secret recording. Ethics codes, such as the ABA Model Rules of Professional Conduct, do not specifically address covert recording by lawyers. The secret recording of conversations potentially implicates a number of general ethical standards, however. Model Rule 8.4 states that it is “professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

In 1974 the ABA Standing Committee on Ethics and Professional Responsibility in Formal Opinion 337 prohibited secret recordings, reasoning that secret recordings would be tantamount to dishonesty or misrepresentation. The ABA affirmed this position a year later and stated that a lawyer was also ethically prohibited from directing an investigator to tape- record a conversation without the knowledge of the other party.

In the years after ABA Formal Opinion 337, many state ethics authorities followed it. Others did not, concluding that when done legally, a lawyer is ethically permitted to secretly record conversations. For example, the State Bar of Arizona Ethics Committee considered whether an investigator retained by a public defender could surreptitiously tape an interview with a potential witness “to obtain impeachment material on the witness should the testimony of the witness be different at the trial than in the interview.” In reversing an earlier opinion prohibiting secret recordings, the ethics committee in Arizona Opinion 90-02 stated, “The practicalities of the present day criminal justice system seem to be inconsistent with any continued prohibition against surreptitious recordation of a witness.”

The ABA withdrew Opinion 337 in 2001. Its current position, set forth in Formal Opinion 01-422, is that “[a] lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily violate the Model Rules.” As do ethics opinions from several states, the ABA opinion advises that a lawyer may not make secret recordings in violation of the law “nor falsely represent that a conversation is not being recorded.” In reaching this new position, the ABA noted that its prior position relied in part on the prohibition against the appearance of impropriety, which does not appear in the Model Rules. Further, Model Rule 4.4, dealing with “respect for rights of third persons,” proscribes “means that have no substantial purpose other than to embarrass, delay or burden a third person,” and “methods of obtaining evidence that violate the legal rights of such a person.” By implication, the ABA sees conduct that has a valid purpose and does not violate a person’s legal rights as permitted by Model Rule 4.4. Thus, prior Opinion 337 was at odds with the Model Rules. The ABA’s new position on secret recording is consistent with a growing number of state ethics opinions.

On the other hand, shouldn’t the gaming industry be squeaky clean and not have to hide behind confidentiality?

Transcript provides insight in lawyers covering their asses

Someone must be spoon-feeding The Nevada Independent like a baby in a highchair.

First, the online, contribution-funded news site first posted Control Board Chairman A.G. Burnett’s affidavit about his secretly recorded conservation with Attorney General Adam Laxalt concerning casino and newspaper owner Sheldon Adelson’s request for the gaming board to file an amicus brief in a civil lawsuit asking that certain records be kept confidential.

Now, at 8 a.m., after a columnist in the morning paper called for the recording to be made public, the NVIndy posts the transcript of the recording.

The transcript is a rambling discussion of whether the gaming board should become involved in the civil case by invoking NRS463.120, which makes gaming records confidential. Burnett had turned the recording over to the FBI, who determined Laxalt did nothing criminal.

The NVIndy previously had reported that back in 2008 then-Attorney General Catherine Cortez Masto, now a U.S. senator, had tried to invoke the confidentiality of records:

In 2008, amid a yearslong legal battle between former Las Vegas Review-Journal columnist John L. Smith and Adelson, who sued Smith over an allegedly defamatory passage in his book, Smith’s lawyers sought to compel the Gaming Control Board to release records relating to Adelson’s gaming license as part of the discovery process. Cortez Masto, on the board’s behalf, opposed the release on the grounds that it would impinge on the board’s ability to thoroughly vet gaming license applicants.

A Review-Journal editorial at the time noted:

As a part of the discovery process while preparing for a scheduled trial in December, Smith’s attorney, Don Campbell, managed to gain access to confidential Gaming Control Board records relating to Adelson’s gaming license. That was a feat of legal skill and audacity accomplished only one other time in history.

Since the trial has been called off, those records remain confidential.

Campbell said in court that Adelson would have pursued the case “to the end of the Earth” but that since he obtained those gaming records Adelson now “wants to call it off and walk away.”

Adelson now owns the newspaper and Smith resigned after being told he could no longer write anything about anyone who had unsuccessfully sued him.

This case was also raised in the Burnett-Laxal conversation:

In his affidavit, Burnett said he recorded the conversation with Laxalt because Adelson had reporters follow the judge in the case and he feared he might be monitored by reporters. This too came up in the discussion:

The bottomline is that both men were trying to cover their asses:

Adelson eventually settled the lawsuit.

 

 

Newspaper fails to uncover name of ‘mystery’ gaming licensee

Sheldon Adelson, owner of casinos and newspaper. (Reuters pix via NY Times)

Often the most significant aspect of a news story is what it doesn’t report.

The morning newspaper today reports that Democratic Assemblywoman Maggie Carlton of Las Vegas is seeking to conduct a hearing on a surreptitious recording made by Gaming Control Board Chairman A.G. Burnett of a conversation with Attorney General Adam Laxalt concerning “a certain licensee” — in other words, a casino owner.

Near the end, the news account informs readers that neither Carlton nor the AG’s office would name that “certain licensee.”

Now who on earth could that “certain licensee” be?

Back in February an online news operation called The Nevada Independent reported that Burnett had secretly recorded a meeting with Laxalt in which the AG asked that the gaming board file an affidavit in a civil lawsuit in Las Vegas demanding that certain records concerning the Las Vegas Sands be kept confidential. The Sands is owned by Sheldon Adelson, whose family owns the Las Vegas Review-Journal. Adelson is also a major contributor to Laxalt’s political campaigns.

The Nevada Independent is funded by contributions, a large portion of which come from Sands competitors, and is headed up by former Review-Journal, Las Vegas Sun and television commentator Jon Ralston.

Both the Independent and Battle Born Media newspaper sought a copy of the recording under the state public records law but were turned down. “Even if the requested material was a public record,” the gaming board custodian stated, “it is declared confidential and privileged by law and, therefore, exempt from disclosure.”

Laxalt issued a statement at the time in an attempt to explain his meeting with Burnett on behalf of Adleson, “The Attorney General’s Office was approached by the Sands Corporation asking us to file an amicus brief about NRS 463 — a statute that protects the confidentiality of documents submitted to the Gaming Control Board. I’ve made it a practice to personally advise and meet with my clients on a regular basis. As a Nevada statewide elected official, I also meet with constituents all the time on issues that are important to the State and our clients.”

In the story first filed online Tuesday evening, the morning paper quoted Carlton as saying in a statement, “Last week I issued a subpoena for information regarding actions Attorney General Laxalt took to interfere with the Gaming Control Board’s oversight of a certain licensee. … The information is unsettling and warrants a hearing. We will work with the Chairman of the Gaming Control Board to bring more light to this situation.”

At about 4 a.m. today The Nevada Independent, which bills itself in social media as @TheNVIndy, posted a lengthy story recapping its previous reporting on the topic and attaching a 14-page notarized affidavit filed by Burnett on April 27. Why he created the affidavit is unclear.

That affidavit explained for the first time why Burnett, who was appointed by Gov. Brian Sandoval, decided to record the conversation. “Further, because said licensee had in recent months been part of the purchase of the Las Vegas Review-Journal, and as previously noted, there were news articles implying that agents or employees of the newspaper had sent reporters around to monitor particular judges, including the judge presiding over the wrongful termination case, I was concerned reporters might be monitoring me, as well.”

Burnett also said, “I was shocked and in disbelief due to the nature of these unusual circumstances. I was also extremely worried about what the conversation might entail. Based on my knowledge of Nevada statutes, including past discussions with federal authorities, I determined it was in my best interest, and those of the state and the GCB, to record the upcoming oral conversation.”

Burnett reportedly turned over a copy of the recording to the FBI, which found no criminal behavior.

The Independent reported that Laxalt sent this statement to the news outlet: “Today’s news proves the point — Nevada democratic (sic) politicians will stop at nothing — including twisting and politicizing a routine action that previous attorneys general, including Catherine Cortez Masto, have taken. … We look forward to exposing this for what it is: a political attack designed to distract from the Democrats’ radical agenda that harms Nevada’s working families.”

Laxalt is said to be planning to run for governor. In March the Sun reported that Democrats filed public records request seeking copies of Laxalt’s official communications with Adelson and his representatives. The Sun story also mentioned the secretly recorded conversation that remains a mystery to the newspaper into which it is inserted.

The Sun reported, “Laxalt has faced criticism over an April 2016 meeting with Gaming Control Board Chairman A.G. Burnett. Democrats have asked the FBI to release any audio recordings and documents related to the case and called for a state ethics investigation, saying Laxalt was attempting to push Burnett into supporting Adelson in a lawsuit.”

A year ago the Gaming Control Board fined the Sands $2 million for failing to maintain the reputation of the gaming industry. This was based on the company settling with the Securities and Exchange Commission for a $9 million civil penalty, which follow on a $47.4 million settlement with Treasury a couple of year earlier.