Newspaper column: Trump appeals court nominee looks right for the job

This past Friday President Trump nominated former Nevada Solicitor General Lawrence VanDyke to a seat on the 9th U.S. Circuit Court of Appeals, which handles cases for nine Western states and territories in the Pacific.

As solicitor general, VanDyke served in the office of then-Nevada Attorney General Adam Laxalt. He also served as solicitor general in Montana and Texas. 

VanDyke earned bachelor’s and master’s degrees from Montana State University-Bozeman and graduated magna cum laude in 2005 from Harvard Law School, where he was editor of both the Harvard Law Review and Harvard Journal of Law and Public Policy. He is a member of the conservative Federalist Society and currently is a deputy assistant attorney general for the Environment and Natural Resources Division at the Department of Justice.

Nevada’s Democratic U.S. Sens. Catherine Cortez Masto and Jacky Rosen immediately issued a statement sharply critical of the nomination.

Lawrence VanDyke

“We’re frustrated the White House is choosing to ignore the bipartisan work undertaken by our offices in concert with Nevada’s legal community to identify and recommend qualified Nevadans for the Ninth Circuit,” said their statement. “The Administration’s decision to put forward this nominee ignores the broad, consensus-based opinion of Nevadans. Instead, the White House has chosen to move forward on their extreme judicial agenda. While we will review the full record of this nominee, we are disappointed that the White House has chosen to nominate a candidate with a concerning record of ideological legal work.”

Only two days before the two senators had announced the formation of what they called “bipartisan judicial commissions to make recommendations for Nevada’s judicial vacancies,” and said, “We are establishing the commissions to encourage this and future administrations to nominate candidates that reflect the diversity and values of the Silver State.”

Republican President Trump paid no heed whatsoever.

Critics of VanDyke quickly jumped on his record in Montana of advancing friend of the court briefs defending bans on same-sex marriage and abortion, as well as challenges to gun rights. 

The voters of both Montana and Nevada had amended their state constitutions to prohibit same-sex marriage, and in 2014 Montana filed a legal brief defending those amendments before the 9th Circuit. Cortez Masto, then Nevada attorney general, refused to defend the state’s amendment. The 9th Circuit eventually ruled both state’s amendments were unconstitutional.

VanDyke was quoted by a Montana newspaper, while running unsuccessfully for a seat on that state’s Supreme Court, “My job was to represent the interests of the people of Montana and defend our state’s laws. So simply because I worked on a specific case or made a specific recommendation obviously can’t be taken as representative of my personal views. In fact, as Montana’s solicitor general, I worked on cases and took positions that were sometimes at odds with my personal or political views.”

While working under Laxalt, VanDyke was said to be a key figure in securing an injunction staying the Environmental Protection Agencies’s 2015 “Waters of the United States” rule, which unduly expanded federal power over every stream, ditch, seasonal puddle and muddy hoof print as being covered by the restrictions of the Clean Water Act of 1972. 

The conservative National Review also notes that VanDyke’s challenge of the Bureau of Land Management’s over-broad greater sage grouse land plan caused the agency to back off. The plan would have withdrawn more than 10 million acres of federal public land from use for such things as grazing and mineral exploration. He also challenged the Obama-era EPA’s Clean Power Plan that threatened to raise power bills.

“VanDyke also litigated in defense of the Second Amendment and religious freedom,” the National Review article continues. “He filed the multi-state amicus briefs at both the circuit and Supreme Court level in the Trinity Lutheran case. He was also part of the successful multi-state challenge to the Obama administration’s DAPA program, which attempted to legalize and grant numerous benefits to over 4 million illegal aliens without statutory authority. As the lead lawyer for a 22-state coalition, he successfully challenged the Obama administration’s Overtime Rule.”

Sounds like the kind of person who could help change the future rulings of the once uber-liberal 9th Circuit.

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.

Circuit court slaps down judge and rules against rancher

One person’s bias and prejudice is another’s accurate assessment.

On Friday the U.S. 9th Circuit Court of Appeals kicked the decades-old Hage ranch case back to the federal court in Nevada, ordering the court to assess damages for the ranch allowing its cattle to trespass on federal land and kicked the federal judge who sided with the ranch to be removed from the case.

The case involves the estate of E. Wayne Hage and his son Wayne N. Hage and has been going on since 1979.

Federal Judge Robert Jones had ruled in favor of the Hages, whose ranch is near Tonopah and even cited two federal land managers for contempt. The circuit court tossed all that.

This is what the court said about Judge Jones:

A dispassionate observer would conclude that the district judge harbored animus toward the federal agencies. Unfortunately, the judge’s bias and prejudgment are a matter of public record. On the first day of the 21-day trial, the judge stated: “the Bureau of Land Management, you come in with the standard arrogant, arbitrary, capricious attitude that I recognize in many of these cases.”

“[I]t’s my experience that the Forest Service and the BLM is very arbitrary and capricious.” “Your insistence upon a trespass violation, unwillful —your arbitrary determination of unwillfulness [sic: willfulness] is undoubtedly going to fail in this court.”

At a pretrial motions hearing, the judge advised a third-party rancher that he could file a lawsuit against the government and that “[h]opefully you’ll get Judge Jones because I’m very receptive to Mr. Hage’s lawsuit.” Addressing Hage, the judge stated: “You have a court that’s very receptive and sympathetic to your claim.”

At a separate pretrial motions hearing, the judge stated: “In my opinion, not only in this case but in many cases, the government has been all too ready to — in the name of revoking or suspending or limiting grazing licenses, the government has been all too ready in the history of Nevada to impair otherwise suspected and substantiated rights of landowners.”

The judge explained in detail: We all know what that game is about. . . . And the game, just for the record, even though the government in many cases didn’t have the right to insist upon a permit, because asking for a permit would be an additional limitation on the right of use of a property right[], nevertheless, the government in many cases has insisted upon it, and then, when they denied or suspended or revoked the right, they said you no longer have the right. So that’s what that game is all about.

During the contempt hearings, the judge stated: “I don’t like and never have liked the BLM’s or Forest Service’s arrogant presumption that they could assess to people for [animal unit months], for trespass, their own travel costs, office costs, sitting in their big chair already paid for by the American taxpayer.”

Wayne Hage

To many Nevada observers it is Judge Jones who has an accurate view of the events and deeds taking place on federal land here and the circuit court judges who are prejudiced and uninformed.

In 2013, Sen. Dean Heller took the floor of the Senate to agree with Judge Jones.

“The court found that for more than two decades, federal officials entrusted with responsibly managing public lands actively conspired to deprive Wayne Hage, and his father’s estate, of their grazing permits and their water rights,” Heller said. “In its decision, the court ruled that ‘the government had abused its discretion through a series of actions designed to strip the Estate of its grazing permits, and of the ability to use water rights.’”

He added, “The Framers of the Constitution believed that private property rights were sacred. The 5th and 14th Amendments specifically prohibit the government from depriving citizens of ‘Life, Liberty, or Property, without Due Process of law.’ And those amendments are there for a reason.”

The court ordered the Nevada district court to enter a judgment for the government on all claims and to calculate appropriate damages.

The liberal court has once again sided with the bureaucrats over the citizens who are being run over roughshod.

Hage ruling

Hage contempt