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.

 

Media object to sweeping Bundy secrecy order

Bundy standoff. (Reuters photo)

Three media organizations have filed an objection to a federal judge’s order to veil in sweeping secrecy documents and evidence in the Bundy case. Intervenor objects

Earlier, U.S. Magistrate Judge Peggy Leen ordered all materials produced by the government in discovery in the case — grand jury transcripts, agency reports, witness statements, memoranda of interviews, documents and objects produced by the government — are to be confidential and anything filed court relating to these are to be automatically filed under seal.

She said this was being done to protect witnesses, victims, law enforcement, prosecutors and other government officials from being intimidated — mostly based on vague 2-year-old Internet postings that suggested certain people might come to harm.

Attorney Maggie McLetchie — who represents the Las Vegas Review-Journal newspaper, The Associated Press and Battle Born Media, which publishes a half dozen weekly newspapers across the state — on Friday filed the 22-page objection, saying the secrecy order is excessive and unnecessary.

The Bundy case grows out of the April 2014 standoff between Bureau of Land Management law enforcement and armed supporters of Bunkerville rancher Cliven Bundy. Bundy had failed to pay grazing fees for 20 years and the BLM was attempting to roundup his cattle. The 19 defendants face felony charges that include conspiracy, obstruction, extortion and assault, which carry penalties of up to 50 years in prison.

The BLM eventually released the cattle rather than risk bloodshed.

McLetchie argues (specific cites omitted):

The Magistrate Judge noted that public access to discovery materials is more limited than to court proceedings. … However, in allowing the materials deemed “Confidential” to be automatically filed under seal, the Court’s Protective Order essentially misapplied the lesser standard for access to criminal discovery to judicial filing. The law of this circuit and the common law “start with a strong presumption in favor of access to court records.” … Given this presumption of public access, the Ninth Circuit “requires a party to make a particularized showing of good cause for each document it seeks to file under seal.”

McLetchie notes that the rambling and ranting social media postings cited by the government as a rationale for secrecy are free speech, protected expression of frustration and not actual threats.

These included: “EVERYONE PLEASE CALL … They need to know that they are doing is NOT right and that we notices [sic] it and we are a shamed [sic] of them!” and “Sounds like to solve the problem a lqnd [sic] owner will, have to take out an AR 10 and put a bullet in -head to save the other land owners to stop this, if I had land. i will now, kniw [sic] who to shoot first….”

Rather than close off everything, the attorney suggests identifying information could be redacted.

McLetchie concludes:

Indeed, the magistrate judge’s protective order subverts longstanding presumptions that (1) court records are presumptively public, and (2) depriving the public of access to public records requires a careful balancing of the private and public interests at stake. Instead, with little in the way of good cause to support a protective order, the magistrate judge has mandated that all confidential documents attached to motions and pleadings must be filed under seal without requiring the filing party to show why sealing is necessary. This runs contrary to the Ninth Circuit and this Court’s law, and should not be the standard for filing documents and supporting discovery in this case. Instead, this Court should follow the guidance of the Ninth Circuit and require parties to establish that submitting discovery documents in a public filing will result in a specific, particularized harm. In addition, the party seeking to file discovery documents under seal should be required to demonstrate that alternatives to sealing such as redacting identifying information would not suffice to address the government and the magistrate judge’s concerns.

She also notes that in a recent Nevada case Magistrate Judge George Foley recently ruled that the party seeking a protective order in a criminal case must bear the burden of showing good cause and a showing of specific harm.

The public has a right to see whether justice is done from now until and through the trial scheduled for next February. Meanwhile, all the defendants are being held without bail.

Editorial: Judge rules Bundy case evidence will be cloaked in secrecy

That was a futile gesture.

A federal judge has rejected efforts by the Las Vegas Review-Journal, Battle Born Media and The Associated Press to be privy to evidence provided to the defense attorneys for the 19 defendants accused in the armed standoff at the Bundy ranch in Bunkerville in April 2014, meaning that most evidence will remain veiled in secrecy until the trial next February.

The judge did state that information already in the public domain — such as Facebook, Twitter and YouTube postings — could not be declared secret. The cat may not be put back in the bag, as one wag argued.

Bundy ranch standoff. (Reuters photo)

U.S. Magistrate Judge Peggy Leen wrote in her order this week, “All materials produced by the government in discovery in this case, including, but not limited to: grand jury transcripts, agency reports, witness statements, memoranda of interviews, and any documents and tangible objects produced by the government shall be treated as confidential documents. Information and documents in the public domain are not confidential documents.” Protective order 7-15

The judge warned that defense attorneys may not even share notes relating to the contents of discovery with anyone not employed to assist the defense, and anything filed in court relating to the discovery must be filed under seal.

Judge Leen based her ruling on the belief that, “The victims and witnesses in this case are vulnerable to cyberbullying, threatening communications, and intimidation from Bundy supporters who have demonstrated their ability to rapidly disseminate images and private information about victims and witnesses and encourage people to contact victims and witnesses. These tactics ‘have the potential to disrupt and prejudice the truth finding function of a trial by influencing potential witnesses or chilling their willingness to testify.’” Order 7-15

She determined this even though almost all of the 22 allegations of intimidation are two years old and nothing substantive has come of any of them.

The defendants face felony charges that include conspiracy, obstruction, extortion and assault, which carry penalties of up to 50 years in prison. The standoff occurred after armed Bureau of Land Management law enforcement agents attempted to roundup Cliven Bundy’s cattle after he had refused for 20 years to pay grazing fees in the Gold Butte area. The BLM said he owed $1 million in fees and penalties.

Armed Bundy supporters outnumbered the BLM agents 4-to-1, the court claims, and the agents eventually released the cattle and left to avoid potential bloodshed.

Attorney Maggie McLetchie, who represents the media in this case, told the Las Vegas newspaper after the recent ruling, “From the media’s perspective, the order still cloaks much of the information about this case in secrecy despite the heightened need for transparency the judge recognized when allowing the media to intervene. It is deeply troubling that so many documents will be automatically hidden from public view.”

The lack of public scrutiny means that any extenuating or mitigating circumstances that the public might shed light on will not come until the time of trial, when it might be too late.

One glaring example of this is the court’s continued referencing to the fact that a couple, Jared and Amanda Miller, who were at the Bundy ranch during the standoff latter ambushed and killed two Las Vegas police officers in a restaurant and “draped a Gadsen (sic) flag over one of the officers, and shouted to patrons that this was the start of ‘a revolution.’”

Never mind that it was a Gadsden flag, the court makes no mention of the fact the Bundy’s say they kicked the Millers off the ranch due to their left-wing radicalism.

In a motion filed in support of opening up discovery to the press and the public, McLetchie argued, “One of the most critical aspects of news reporting is to inform the public of justice being carried out in the courts. In this regard, the press is vital to the health of a democracy. … This right is anchored in the value of keeping ‘a watchful eye on the workings of public agencies,’ and in publishing ‘information concerning the operation of government.’ … ‘In short, justice must not only be done, it must be seen to be done.’”

The attorney for at least one of the defendants plans to appeal the secrecy decision.

A version of this editorial appears this past 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: Press fights for your right to observe justice while it happens

Cliven Bundy at his ranch near Bunkerville (Getty Images via Politico)

The Las Vegas Review-Journal, Battle Born Media newspapers and The Associated Press are continuing to push for public access to evidence in the federal case against Bunkerville rancher Cliven Bundy, four of his sons and 14 others.

This past week attorney Maggie McLetchie, who represents the press as intervenors, filed another motion seeking to overturn an overly broad protective order that places everything being provided by government prosecutors in the discovery process to defense attorneys under a veil of secrecy. The reason given for the secrecy is some vague fear of intimidation. The government cites some threatening Internet posting, without any measure of confidence that the threat is anything more than some crackpot bloviating, but with no intention or capability to carry out a threat. (Motion to Intervene)

The 19 defendants are jailed without bail on charges that include obstruction of justice, conspiracy, extortion, assault and impeding federal officers growing out of the armed standoff in April 2014 between Bundy supporters and Bureau of Land Management agents attempting to roundup cattle Bundy had been grazing on public land for 20 years without benefit of a permit or the accompanying grazing fees. Fees and interest and penalties were said to top $1 million. Most of those defendants also oppose the protective order.

The Constitution guarantees a right to a public trial and the right to confront witnesses, and that includes during the procedures leading up to the trial, which is scheduled for nearly a year from now.

One of the more specious claims supporting sweeping secrecy is the fact Jerad and Amanda Miller, who later ambushed and killed two Las Vegas police officers and a civilian, were present at the standoff. No mention is made of the fact the Millers were told to leave the ranch because they were lunatic radical leftists involved in the Occupy Movement.

Prosecutors seeking the blanket secrecy wrote, “The Government has a reasonable fear that the defendants, or other supporters will further disseminate this information into the public domain for the purpose of harassing and intimidating these third parties, including victims and witnesses.” (Request for protective order)

McLetchie points out in her motion, “Intervenors are concerned about the First Amendment implications of the government’s proposed protective order … Intervenors have reported and will continue to provide members of the public with information about this case, which is a small part of a larger national dialogue about the ongoing competition for natural resources between ranchers, environmental groups, and the federal government. Given these concerns, as well as the controlling case law, it is imperative that the Court consider the First Amendment implications of the government’s proposed protective order in determining whether the government has established good cause.”

The attorney adds that Cliven Bundy himself has said, “(W)e want the press to shine the light of truth on this case so that the government cannot hide its misdeeds by burying those deeds …” — clearly a First Amendment concern.

“This case in part involves the fine line the government must walk when criminalizing speech — especially when the speech at issue is critical of the very government that is prosecuting the case,” the motion states. “The public has a right to evaluate the nature of the government’s case for itself. The need for transparency is especially important in light of the fact that this case involves government critics.”

Under the prosecution’s free-wheeling presumptions, every case would necessarily have to be conducted in secrecy because someone somewhere for some unknown reason might try to do something that might intimidate someone somewhere.

McLetchie cites case law that clearly requires something a little more specific than such vagaries. “Good cause is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing,” she quotes.

The very purpose of providing discovery to defense attorneys is so they might be able to form a proper rebuttal to charges, which requires them to be able to talk to people about the evidence and witness statements and perhaps seek input from the public via the press.

If there are specific examples of real endangerment, prosecutors can redact that specifically and not keep everything under seal.

A version of this editorial appears this past 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.

Obama wages war on fossil fuel while taking credit for lower gasoline prices

A version of this editorial appears this week in 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:

The price of gasoline in parts of the country has dropped below $2 a gallon after hovering near $4 for so long.

In fact, in the most basic terms, the price of gasoline is the lowest it has ever been. According to the American Enterprise Institute, the average American only has to work for 24 minutes to afford enough fuel to drive 100 miles. Back in 1980 it took nearly an hour, but wages are higher, mileage is better and prices are lower.

The fundamental reason for lower prices is increased supply as technology — horizontal drilling and hydraulic fracturing — has allowed domestic production of crude oil to soar.

In his State of the Union speech President Obama this week stated, “We believed we could reduce our dependence on foreign oil and protect our planet. And today, America is number one in oil and gas. …  And thanks to lower gas prices and higher fuel standards, the typical family this year should save about $750 at the pump.”

He has being saying this for some time. In one of his weekend radio speeches Obama told us with a straight face, “Under my administration, we’re producing more oil here at home than at any time in the last eight years, that’s a fact.”

Oil pump jacks dot the oil field in Railroad Valley, southwest of Ely. (BLM photo)

According to a Congressional Research Service report that came out shortly after Obama’s comments, that is indeed a fact. The research service reported that U.S. crude oil production increased 38 percent from 2009 to 2013. Breaking that down further, the report said this was due to production on private land increasing by 61 percent, while production on federal public land actually fell — yes, fell — by 6 percent.

Under Obama’s administration the backlog of drilling permits at the Bureau of Land Management alone has topped 3,500 and the time it takes to obtain a permit has doubled. BLM recently has cut the acreage available in some oil and gas lease auctions by half to reduce the impact on sage grouse habitat.

The BLM’s own stats show in fiscal year 2014 the number of new drilling permits issued was one third of the number in 2006, both nationally and in Nevada. Also the number of acres of new oil and gas leases in 2014 was a quarter of the acreage leased in 2006, also both nationally and in Nevada.

In that radio address Obama called for attacking high gasoline prices by demanding Congress vote to repeal what he called $4 billion in subsidies — really the same tax breaks every other industry gets — for big oil companies.

“In the next few weeks, I expect Congress to vote on ending these subsidies,” Obama said. “And when they do, we’re going to put every single member of Congress on record: They can either stand up for oil companies, or they can stand up for the American people. They can either place their bets on a fossil fuel from the last century, or they can place their bets on America’s future. So make your voice heard. Send your representative an email. Give them a call. Tell them to stand with you.”

Congress ignored him, but that $4 billion would have been added on at the pump and come out of our wallets, not the pockets of fat cat oil barons.

Just this past week Obama continued his war on fossil fuels by announcing by fiat new standards for the release of methane during oil and gas production, demanding that methane emissions be cut by 45 percent in the coming decade.

The cost of doing that is unknown. It is not known whether the technology to do so even exists. And some scientists argue that methane’s impact on climate change — of which there has been none for 18 years — is negligible, if any.

Landfills and agriculture emit more methane than the oil and gas industry, according to the EPA, but Obama has not targeted those at all.

In the war on high fuel prices, Obama is not a conscientious objector, he is the enemy.

Enjoy the price at the pump while you can, your president is doing everything he can to make it short-lived.