DECADES DELAY DECRIED: KAFKAESQUE!

Summer 2015

REAGAN ERA ENERGY LEASE IN COURT

Its Kafkaesque. [I]t really, really is

troubling. Its very troubling, declared
federal district court judge Richard J. Leon
in a Washington, D.C. courtroom after
calling an expedited
hearing in the attempt
by MSLFs client
Sidney Longwell to
be allowed to drill on
the federal lease he obtained in 1982. I think
the people at these
agencies are lucky they
havent been deposed
about their actions in
these in this matter. I think they might
find it very awkward to be under oath
and have to answer questions about the
speed at which they have performed their
tasks here, continued the judge. Then he
turned his attention to the Department of
Justice attorney before him, I think youd
be hard-pressed to defend that conduct.
Mr. Longwell of Baton Rouge, Louisiana, won the lease in 1982, but has been
denied the right to explore his property
since initial approval of an application for
permit to drill (APD) in 1985. On behalf of
his company, Solenex, LLC, he sued Secretary of the Interior Sally Jewell and other
Interior Department and U.S. Department
of Agriculture officials in federal district
court in the District of Columbia. He
charges the United States has unlawfully
withheld and unreasonably delayed the
action necessary to permit him to exercise
the rights granted him under the lease issued by the Bureau of Land Management
(BLM) on 6,247 acres in the Lewis and
Clark National Forest in Glacier County,
Montana in northwestern Montana. A decade was spent obtaining final approval to
drill but, for the next twenty years, federal
officials suspended the lease and barred

all activity.
In 1983, Mr. Longwell assigned the
lease to America Petrofina Company of
Texas, which later became Fina Oil and
Chemical Company.
In October of 1983,
Fina submitted an
application for permit to drill near Hall
Creek, approximately
2 miles south of U.S.
Highway 2 to evaluate the natural gas
potential of that portion of the Overthrust
Belt. After extensive review pursuant to
the National Environmental Policy Act
(NEPA) and the National Historic Preservation Act (NHPA), amidst appeals, and
following a ruling by the Interior Board
of Land Appeals, in consultation with the
U.S. Forest Service, the BLM approved
the APD in 1985, 1987, 1991, and finally in
January of 1993.
Nonetheless, the Clinton administration tried to kill the lease. In 1993,
1994, and 1995, Secretary Bruce Babbitt
suspended lease activity purportedly so
Congress could designate the area as a
wilderness, which was impossible the
tribe has reserved rights to hunt and gather wood there. In 1996, Babbitt continued
the suspension ostensibly to comply
with the NHPA a fifth time, repeated that
suspension in 1997, and in 1998 made it
indefinite.
In 1999, FINA assigned its rights under
the approved APD and lease back to Mr.
Longwell. In July of 2004, he assigned his
rights to Solenex, which, in May of 2013,
asked that the suspension be lifted; the
request was denied.
Meanwhile, the Forest Service concluded that a traditional cultural district

MOUNTAIN
STATES
LEGAL
FOUNDATION
Executive Offices:
2596 South Lewis Way
Lakewood, Colorado 80227
303-292-2021
Fax 303-292-1980

www.mountainstateslegal.org
(TCD) of 90,000 acres existed on federal
lands beyond the APD drill site, which
was designated with the Blackfeet Tribes
concurrence. Later, the tribe demanded
expansion of the TCD. To appease the
tribe, federal officials bankrolled the tribe
and its consultants in generating multiple
studies to expand the TCD to 120,000 and
then 165,000 acres, thereby enveloping the
drilling site.
Federal officials say they are helpless
given the tribes position that no oil and
gas drilling occur in the area due to its
spiritual and religious power, but one
federal official suggested that a $5 million
payment would remove all objections. In
fact, in 2013, the tribe published a slick,
twelve page prospectus, Oil and Gas Development Opportunities on its nearby
tribal lands. For over two decades federal
officials let the tribe have its way despite
a Supreme Court 1988 opinion by Justice
OConnor: Whatever rights the Indians
may have to the use of [a sacred] area
those rights do not divest the Government
of its right to use what is, after all, its land.

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Page One

FIRST OF FOUR TABOR CASES IS OVER

The Colorado Supreme Court,

over the dissent of one justice and the
abstention of another, declined to hear
an appeal filed by a
Colorado group that
defends the rights
of taxpayers. The
TABOR Foundation
had urged the court to
review the August of
2014 Court of Appeals
ruling in the groups
appeal of a Colorado
state district courts
dismissal of a lawsuit against two
Colorado bodies and their officials for
violating TABOR (Colorado Constitutions Taxpayers Bill of Rights). In its
2012 lawsuit, the TABOR Foundation
alleged its members should have been
allowed to vote on $100 million in new
taxes and $300 million in government
bonds imposed by the Colorado Bridge
Enterprise (CBE), a government-owned
entity created in 2009 by the General
Assembly with the Funding Advancements for Surface Transportation and
Economic Recovery Act (FASTER).

The suit named CBE and the Colorado

Transportation Commission and its
members and sought declaratory and
injunctive relief and
refund of revenues
plus interest. In a
2013 ruling, after a
two-day trial, the
district court held
the CBE an exempt
enterprise and its
assessment a fee not
a tax. In its petition,
the TABOR Foundation urged Colorados highest court to
rule on what is a tax and what is a fee
to ensure the rights of the people are
protected.
In 2009, the Colorado General Assembly passed FASTER, which provides
for creation of the Colorado Bridge
Enterprise, a government-owned entity
chartered to repair and to maintain
bridges in Colorado.
Three other lawsuits defending
TABOR are at various stages in lower
Colorado courts seeking a Colorado
Supreme Court ruling.

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Visitors to MSLFs web site at www.mountainstateslegal.org responded to the

following question: Congress okayed federal land closures of over 5,000 acres,
subject to its veto but the Constitution bars such a veto; is a withdrawal over
5,000 acres legal? Sixty seven percent (67%) said, No: Congress linked land
withdrawal authority to the veto; so both provisions are null and void. Thirty
three percent (33%) said, Yes: The law has a severability clause; therefore, the
veto is removed but the authority remains.
Vote on the new question at MSLFs web site today!
Remember, the best way to keep abreast of MSLFs precedent-setting,
nationally-significant litigation is to check MSLFs highly acclaimed web site.
MSLFs web site is updated at least every week and often daily. In particular,
check for updates on MSLFs Legal Cases and News Releases.

Litigator

The

PENDLEYS VIEW

The Property Clause vests solely

in Congress power to manage federal
lands; for almost 200 years, no single
act delegated that power. Nonetheless,
the president often temporarily withdrew public lands from operation of
federal lands laws, which the Supreme
Court upheld in 1915 as the exercise of
his implied authority given Congresss
acquiescence. Meanwhile, in 1910,
Congress delegated authority to make
some temporary withdrawals, but the
Court declined to rule on whether that
repealed the implied authority.
In 1970, the Public Land Law
Review Commission, a creation of
Congress, reported that withdrawals
were uncontrolled and haphazard,
and demanded Congress assert its
constitutional authority by enacting
legislation reserving unto itself exclusive authority to withdraw or otherwise set aside public land for specified
limited-purpose uses. In 1976, Congress repealed 29 withdrawal statutes,
overruled the Courts 1915 ruling, and
revoked any and all implied withdrawal power. It delegated authority to
make specific and limited withdrawals
of less than 5,000 acres, but all larger
withdrawals required that Congress
be notifiedwith documentation as
to the necessity for and impact of the
withdrawaland that the withdrawal
survive a one-House veto. In 1983,
however, the Court struck down a different one-House veto provision thus
invalidating the check Congress sought
to impose with its 1976 Act.
In challenging a million acres land
withdrawal by the Obama administration, MSLF argues the withdrawal
authority would not have existed but
for the one-House veto and that,
with the vetos unconstitutionality, the
delegation of withdrawal authority is
likewise null and void. That legal issue,
which is now before the U.S. Court of
Appeals for the Ninth Circuit, could
yield one of most decisive constraints
on unlimited Executive power in the
Republics history.

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Page Two

2ND AMENDMENT EARNS SPLIT RULING

A Colorado man and a national gun
rights group suffered a defeat before a
panel of the U.S. Court of Appeals for the
Tenth Circuit in the
appeal of a Colorado
federal district court
ruling on Postal
Service regulations;
however, they were
heartened by a
bold dissent in their
favor. In 2013, the
district court struck
as unconstitutional,
a rule that bars
firearms in Postal Service parking lots.
The court held, openly carrying a firearm
outside the home is a liberty protected by
the Second Amendment [and the] parking
lot adjacent to [a local Post Office] is not
a sensitive place [such that] an absolute
ban on firearms is substantially related
to [Defendants] important public safety
objective. Tab Bonidy, who is licensed to
carry a handgun and carries a handgun
for self-defense, must drive to Avon to

collect his mail, but he is barred by federal

regulation from carrying a firearm, or
parking his vehicle if it contains a firearm
in the lot. Mr.
Bonidy asked that
the regulation be
withdrawn; the
agency refused.
Mr. Bonidy and
the National
Association for
Gun Rights sued
in 2010.
By 2-1, the panel ruled in favor
of the Postal Service, both as to the ban on
guns in the parking lotthus overturning
the district courts rulingand as to the ban
on possession of firearms inside the post office. Judge Timothy Tymkovich dissented
from the former, asserting that he would
have upheld the right of citizens to exercise
their Second Amendment rights outside the
home and would have held the parking lot
ban violated that right because [District of
Columbia v.] Heller demands more.

TAXPAYERS SUE OVER HOSPITAL FEE

A Colorado group that defends the
rights of taxpayers sued two Colorado
entities and their officials for violation
of the Colorado Constitutions
Taxpayers Bill of
Rights (TABOR).
The TABOR
Foundation
alleges in Denver
County Court
that its members
should have been
allowed to vote
on whether a
hospital provider
fee could be imposed on Colorado
hospitals. Since enactment in 2009,
tens of millions of dollars and as much
as a hundred million dollars have been
collected by Colorados Department
of Health Care Policy and Financing.
Although federal law allows States
to impose a healthcare assessment to
pay for Medicaid services, regulations
provide for taxes and not fees as
Litigator

The

Colorado calls them to avoid TABOR.

Also, although the 2009 act provided
that the funds collected would be
kept separate from the general fund,
in fiscal years
2010, 2011, 2012,
and 2013 some of
these tax proceeds
were put in the
general fund. The
Foundation seeks
declaratory and
injunctive relief
and refund of
revenues collected,
with the payment of interest, as
required by TABOR.
Contrary to holdings of the Colorado Supreme Court and the Supreme
Court of the United States that a fee is
for services given, a Jefferson County
hospital paid $2.1 million in taxes for
no services. Ten Colorado hospitals
also paid more in taxes than they received in services from the state.

AZ RANCHERS WIN

Two ranching organizations, an Arizona

ranch, and an Arizona rancher won a major
victory at the U.S. Court of Appeals for the
Ninth Circuit when a three-judge panel,
after cancelling the oral argument, affirmed
a ruling by an Arizona federal district court
that granted them summary judgment
over a demand by environmental groups
that grazing permits be revoked and then
subjected to lengthy federal environmental review. The groups claimed the U.S.
Forest Service violated federal law when it
reauthorized permits that allow ranchers
to graze their livestock on nearby federal
lands as they have done for generations
by not issuing full environmental impact
statements (EISs) pursuant to the National
Environmental Policy Act (NEPA) prior to
reissuing the permits. The Arizona Cattle
Growers Association, the Public Lands
Council, Orme Ranch, Inc., and Bert Teskey,
all represented by MSLF, maintained that
Congress made clear that no EISs are
required. After the two groups dropped
challenges to seven Forest Service decisions, the matter was briefed and argued.
The district court upheld the agencys ruling as to seven of the eight decisions.
In fiscal years 2005 through 2007,
the Forest Service, without conducting
environmental reviews pursuant to NEPA,
reauthorized several grazing permits on
lands managed by the Forest Service. In
August of 2011, the Western Watersheds
Project and the Center For Biological
Diversity filed a lawsuit alleging that 17 of
the reauthorizationsseven in the Coconino National Forest in Arizona, three in
the Kaibab National Forest in Arizona, six
in the Prescott National Forest in Arizona,
and one in the Coronado National Forest
in New Mexicoviolated NEPA. The
lawsuit was filed despite the clear intent
of Congress that the Forest Service is not
required to do the reviews.
Beginning in 1995, Congress enacted
legislation to address its concern that the
inability of the Forest Service to complete
NEPA analyses on expiring term grazing
permits would delay renewal of the permits to the detriment of the western ranchers involved. Specifically, Congress sought
to reduce the amount of documentation
and expense required to conduct NEPA.

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Page Three

RONALD REAGAN, SAGEBRUSH REBEL - HIS UNTOLD HISTORY

Sagebrush Rebel: Reagans Battle
with Environmental Extremists and
Why It Matters Today (Regnery 2013),
by William Perry Pendley, tells what
Reagan did, how those who followed
diverted from his vision, and what
America must do to restore its economy,
its strength against its enemies, and its
exceptionalism.

Reagan believed uniquely in Americas

future and its young people; his policies
on energy and the environment ensured
prosperity for decades.
Ron Robinson, Young Americas
Foundation and The Reagan Ranch

[Americas] energy boom ... would soon

be bursting out all over if Obama would just
do the nation a little favor. Repeat some
Reagan history. [E]xcuse me, President
Barack Obama, but please visit this book.

Sagebrush Rebel is one of the most

important, insightful, and inspirational
books about Ronald Reagans domestic
policies since An American Life by President
Reagan himself. It is a must read for
those interested in all that the President
accomplished.

Jay Ambrose
Scripps Howard News Service

Edwin Meese, III

Reagans Attorney General

[T]argets of the new environmental

religion will find lessons [including] how
one principled man and his confidence in the
power of American potential could flip the
radical environmentalist narrative and make
daily life better for all Americans.

The story of Ronald Reagans policies

on natural resources and the environment
has never been told, or has been distorted
by his political enemies. Sagebrush Rebel
corrects the record for the first time, with
relevant insights for our policy debates over
resource management today.

J. Christian Adams, Esq.

Author, Injustice, Exposing the Racial
Agenda of the Obama Justice Department
[Pendley] understands the goal of
environmental extremists: gain control of
policy in order to force Americans to reduce
their standard of living by shrinking the
nations economy. [These] zealots have
turned many [federal laws] into tools of
social control.
Peter Hannaford
Reagan associate and biographer

NOW AN AUDIOBOOK!

Sagebrush Rebel becomes even
more relevant with each passing day
and the news from across the country.
No need to miss out on this amazing
untold history of Ronald Reagan; it is
now available as an audiobook read by
the author himself. FREE with a $25
contribution to MSLF.

Warriors for the West

Steven F. Hayward
Reagan biographer and author,
The Age of Reagan: The Conservative
Counterrevolution: 1980-1989
Ronald Reagana life-long
conservationist and environmentalist
believed people are part of the ecosystem.
That was heresy to those who Reagan called
environmental extremists, so they lie
about his record. The truth is in Sagebrush
Rebel.
Mark R. Levin
Radio talk show host and author,
The Liberty Amendments

If you liked Reagan, you will love

Sagebrush Rebel. It is the perfect
gift! Contact MSLF for pricing of
copies bought in large quantity.

Prominently displayed at the Ronald

Reagan Presidential Foundation & Library

The obsession of environmentalists

is regulating private property, controlling
growthboth human and economicand
trying to predict and alter the future.
Sagebrush Rebel reveals President Reagan
would have none of that.
Linda Chavez, syndicated columnist and
Fox News contributor
The progressive war on western civilization is never-ending. We must take up
Reagans fight to preserve the American way
of life. Sagebrush Rebel shows us how. Buy
it now!
Michelle Malkin, syndicated
columnist, best-selling author, and Fox
News contributor

KEEP READING!

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newsletter, is the indispensable tool for
staying informed regarding the latest in
MSLFs precedent-setting, nationallysignificant, public-interest litigation. The
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MSLF; supplies are limited; see the COUPON on page 5.
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The

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Page Four

MSLF receives no government funds (except when it wins in court and the judge
orders the federal government to pay attorneys fees and expenses).

Mountain States Legal

Foundation (MSLF) Is A
Nonprofit, Public-Interest
Legal Foundation, That Is
A 501(c)(3) Organization,
Since Its 1977 Founding.

MSLFs sole source of support is the tax-deductible contributions of those who

support its aggressive litigation program.

MSLF is a nonprofit, public-interest I.R.C. 501(c)(3) corporation, which makes the

contributions it receives tax deductible.
MSLF is committed to the vision of the Founding Fathers: individual liberty,
the right to own and use property, limited and ethical government, and the free
enterprise system.

Therefore, Your Generous

Contributions To MSLF Are
Tax Deductible!

MSLF CANNOT REST;

ITS ROLE ESSENTIAL
TO REMAINING FREE
In 2015, MSLF will have been going
to court for 38 years, fighting to compel
compliance with the commands of the
Constitution and federal law to ensure
that America remains a nation of laws. At
no time during these nearly four decades
has the need for MSLF to go to court on
behalf of those who could not afford legal
representation been lessened. In fact, as
the federal bureaucracy has grown and as
federal laws have become more far-reaching and intrusive, MSLFs caseload has
increased dramatically. That is obvious
from a review of the scores of MSLF cases
all across America.

Your Support Is Vital

If there is one lesson MSLF has learned
over the past 38 years, it is that, regardless of which party occupies the White
House or controls Congress, the threat to
liberty remains and MSLF must be ready,
willing, and able to go to court to defend
freedom. As Thomas Jefferson once said,
Eternal vigilance is the price of liberty.
One of the prices that must be paid for
MSLF to remain vigilant is the price that
tens of thousands of Americans pay
annually by making their tax-deductible
contributions to MSLF and its aggressive
litigation in defense of freedom.
The support of MSLF by tens of thousands of Americans committed to freedom could not be more important. Your
support will ensure that MSLF remains
IN THE COURTS FOR GOOD!
Litigator

The

MSLFs commitment to the Constitution ensures that America remains a nation

of laws and not of men and that the rich liberty legacy of this nation continues.

MSLF does only one thing: it goes to court in defense of the Constitution, strict
adherence to the laws of the land, and those who cannot afford to hire legal counsel to protect their rights.
Only YOU can ensure that MSLF may continue its vital work.

Federal, state, and local taxes take an ever-increasing share of ones

hard-earned income.
Solution u Gift giving decreases taxes while advancing charitable goals.
u Although many mechanisms for legally lowering taxes have been elimiReason
nated, the opportunities for reducing taxes by charitable giving remain!

The Means u Income Tax A person may deduct up to 50 percent of his or her adjusted
gross income (AGI) for gifts of cash to a qualified charity; that limit is 30 percent for gifts
of appreciated property. Itemized deductions made during 2015, including charitable
deductions, are reduced for individuals earning $258,250 (married couples earning
$309,900) or more. Please consult your tax adviser.

Problem

Estate Tax A person who dies in 2015 is entitled to an exclusion of up to $5,430,000;

however, estates in excess of that amount may deduct charitable gifts, by will or trust.
Because 2015 federal estate taxes over $5,430,000 range from 15 percent to 40 percent, for
every charitable gift of $1,000, the estate saves up to $400 in federal taxes. Please consult
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Page Five

MORA COUNTY ANNULS ITS ORDINANCE FRUIT = PROPERTY

A New Mexico woman, two New
Mexico landowners, and a New Mexico
trade association welcomed
the repeal by Mora County
of its 2013 ordinance that
violated their constitutional
rights by barring energy
development and the
resultant order by a New
Mexico federal district
court dismissing their lawsuit. Mary L. Vermillion,
JAY Land Ltd. Co., Yates
Ranch Property LLC, and
the Independent Petroleum Association of New
Mexico (IPANM) filed a
lawsuit in November of 2013 charging that
Mora Countys ordinance violated their
rights under the First, Fifth, and Fourteenth
Amendments to the U.S. Constitution and
corresponding rights under New Mexicos
Constitution. The ordinance also denied
them their right to invoke state laws that
preempt the countys ability to enact or
enforce its ordinance. The plaintiffs sought

declaratory and permanent injunctive relief

from the unconstitutional actions. In November of 2014, on behalf of
its clients, MSLF filed a motion
arguing there were no factual
issues and that they should
prevail as a matter of law.
In 1978, New Mexico
passed the New Mexico Oil
and Gas Act, which created
the Oil Conservation Commission and Oil Conservation
Division that are vested with
complete jurisdiction, authority and control regarding
the development of oil or gas.
The Division regulates oil and
natural gas activity so as to protect, among
other things, fresh water, public health,
safety and the environment and issues
rules for safety procedures for drilling and
production of oil and gas wells.
Asserting a local bill of rights, despite
the preeminence of State law as to oil and
gas, Mora County passed its ordinance on
April 29, 2013.

TRIBES WATER LAWSUIT IS DISMISSED

Two families sued by Montana
Indian Tribes in Montana federal
district court prevailed in their efforts
to have the lawsuit filed against them
dismissed when
the district court
granted their motion. Robert and
Judy Harms of Hot
Springs and Wayne
and Betty Stickel of
Lonepine in northwestern Montana,
whose property
is in the Flathead
Indian Reservation, were sued by the
Confederated Salish and Kootenai
Tribes in February of 2014; both are
represented by MSLF.
In their lawsuit, the Tribes claim all
water and land within the boundaries
of the Reservation and thus challenge
the validity of the original homesteaders patentssigned by the Presidentand seek to acquire those lands
Litigator

The

and their water rights. The Tribes also

challenge a federal law that assigns
primary responsibility for adjudicating and administrating water rights
to State and not
federal courts
the McCarran
Amendment of
1952. The families
urged the lawsuit
be dismissed.
Federal defendants, who delayed a response
to the lawsuit for
months, moved for an indefinite stay
but they failed.
The 1.3 million acre Flathead Indian
Reservation is home to the Confederated Salish and Kootenai Tribes, which
include the Salish, Pend dOreille, and
Kootenai. Established by the Treaty of
Hellgate in 1855, the Reservation is in
Lake County, Sanders, Missoula, and
Flathead counties.

In a victory for all Americans, the Supreme Court of the United States reversed
a decision by the U.S. Court of Appeals for
the Ninth Circuit and held that a regulatory program adopted in the Great Depression caused the taking of a California
familys crops. MSLF had filed friend of
the court briefs urging review and disputing a panels ruling that Marvin and Laura
Horne, husband and wife, who produce
raisins as Raisin Valley Farms of Kerman,
California, may not receive just compensation. Thus, the family made a second
successful appearance at the high court.
In 2013, the Supreme Court ruled
unanimously that the family could raise
a constitutional defense against federal
agency action. On remand, the Ninth
Circuit held there was not a taking of the
familys raisins because real property was
not involved, the family did not lose all
the value of its property, and the family
received a public benefit. The Court, by
8-1, reversed that ruling and held that neither the history nor the text of the Takings
Clause was limited to real property; it was
meant to protect all property from governmental interference. By 5-3, the Court held
that the amount of just compensation
had been determined by the fine assessed
by the federal government; therefore,
there was no need to remand the case for
any further proceedings to determine the
amount of compensation.
Under the Agricultural Marketing
Agreement Act of 1937, the U.S. Department of Agriculture (USDA) issues a
Raisin Marketing Order (RMO), which
restricts the amount of raisins from a crop
year that raisin handlers in California may
sell on the open market. Handlers must
separate raisins into free tonnage, which
they may sell, and reserve tonnage,
which they then transfer to the Raisin Administrative Committee (RAC) for it to sell
in secondary and non-competitive markets
to fund its administration.
The Hornes have farmed raisins in
California since 1969. In addition to handling raisins produced by their farm, they
processed raisins for other local growers,
but did not comply with the RMO and did
not transfer title to a portion of their crops
to the RAC and were fined $695,226.

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Page Six

LEGAL
ACTION
n The Supreme Court of the United
States, consistent with a friend of the
court brief filed by MSLF, which won
a landmark civil rights case before the
Court, agreed to review a ruling by
the U.S. Court of Appeals for the Fifth
Circuit that upheld the right of the
University of Texas Austin to grant
admission on the basis of race.
n Contrary to a friend of the court
brief by MSLF, the Supreme Court of
the United States ruled that express
language adopted by Congress did
not mean what it said, but meant
something else entirely, which led
Justice Scalia to declare ObamaCare
should be called SCOTUScare.
n Wyoming ranchers express their
dismay with the ruling of a Wyoming
federal district court dismissing the

NOTABLE

Thank you for the awesome work you

guys do.
Michael Yukich
Homewood, IL

QUOTES
Im glad you are helping people who are
being hurt by some of the rules[;] some people
or organizations in our U.S. government have
been overstepping their authority.
Eva R. Johnson
Harrold, SD
I enjoy reading your summary judgments each month.
Paige Peterson
Winslow, AZ
We appreciate all you do in these
diminishing days of freedom.
Eldon Buck Buchner
Baker City, OR

Litigator

The

States lawsuit to compel federal

officials to comply with the wild
horse statute; the Wyoming Stock
Growers Association had filed a brief
in support of Wyoming.
n MSLF filed a friend of the court brief
with the U.S. Court of Appeals for
the Ninth Circuit urging that it reject
the use of race in awarding highway
construction contracts.
n Consistent with MSLFs amicus
curiae brief, the Supreme Court of
the United States agreed to review
a case brought by two Texans
challenging the manner in which
state senate districts are apportioned.
MSLF argued that Texas created
voting districts that under represent
eligible voters but over represent
non-eligible voters in violation of the
constitutional principle of one man,
one vote.
n The U.S. Court of Appeals for the
Fifth Circuit upheld a preliminary
injunction granted by a Texas federal
district court barring federal officials
from implementing President

Thank you for all your hard work to

support agriculture.
Katie Minkler
Ignacio, CO
And a big battle it is. Thank you all
for waging it.
Chard P. Smith, Jr.
Highlands Ranch, CO
[Sagebrush Rebel] is a great insight
into government. The current times make
this book important because we are suffering the same economic malaise today under
this president that we did in the 70s under
Carter.
Preston Drew
Carnation, WA

Obamas illegal immigration edict.

MSLF filed a friend of the court brief
arguing that the United States had
failed to comply with federal law and
that the States that filed the lawsuit
would prevail.
n MSLF filed a friend of the court
brief in support of Utah property
owners who prevailed in a lawsuit
challenging abuse of the Endangered
Species Act regarding the prairie dog.
Pacific Legal Foundation represents
the Utah families who filed the
precedent-setting lawsuit.

Pendley Is In WSJ

Shawn Regan didnt need an apocryphal script of a John Wayne film to

describe the showdown brewing in the
American West . . . between the states
and the feds (The U.S. Department of
Land-Hogging, op-ed, April 3). Ronald
Reagan said it better: From the Rockies,
across the deserts and all the way to the
Pacific the western states are voicing their
angry resentment of a powerful absentee
landlordthe Federal government, which
has overlaid the West with controls and
regulations as irksome as barb wire was
in an earlier day. Reagan called himself a
sagebrush rebel.
There was no less federal land, but
there was less acrimony because Reagan
sought to restore the division of governmental responsibilities between the national government and the States that was
intended by the Framers of the Constitution and to reverse the extreme environmental policies of President Carter. The
rebellion is back today because President
Obama governs as President Carter did.
To cite one example, the presidents Interior Secretary Sally Jewell travels the West
threatening westerners that if they dont
embrace federal legislation locking up
more land from multiple [economic and
recreational] use, President Obama will
issue more national monument decrees to
close such lands by fiat. No wonder there
is a new sagebrush rebellion.
William Perry Pendley, President
Mountain States Legal Foundation
Letters to the Editor

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Page Seven

MOUNTAIN
STATES
LEGAL
FOUNDATION

Non Profit Organization

U.S. Postage
PAID
Denver, CO
Permit No. 847

2596 South Lewis Way

Lakewood, Colorado 80227
ADDRESS SERVICE REQUESTED
PRESIDENT AND CHIEF OPERATING OFFICER

William Perry Pendley

VICE PRESIDENT AND CHIEF LEGAL OFFICER

Steven J. Lechner

VICE PRESIDENTADMINISTRATION

Janice K. Alvarado

EXECUTIVE COMMITTEE

John J. Blomstrom, WY; Chairman

Don Sparks, TX; Vice Chairman
Frank S. Priestley, ID; Secretary
Roy G. Cohee, WY; Treasurer
Ernest Angelo, TX
Stephen M. Brophy, AZ
Roger Cymbaluk, ND
John R. Gibson, NV
Samuel D. Haas, NM
L. Jerald Sheffels, WA

WYOMING RANCHERS SECURE HOSPITALS AID VERSUS EPA

The Wyoming Farm Bureau Federation won the support
of Riverton Memorial Hospital in its federal appeals court
battle to reverse a decision by the U.S. Environmental Protection Agency (EPA) that
granted the Northern Arapahoe Tribe and
the Eastern Shoshone Tribeof the Wind
River Indian Reservation in Fremont and Hot
Springs Counties in west central Wyoming
jurisdiction over the City of Riverton and
its residents. In February of 2014, the Farm
Bureau, some of whose members live, work,
and own property in and near Riverton, petitioned the U.S. Court of Appeals for the Tenth
Circuit contesting the EPAs December of 2013
decision to grant Tribe-as-State status under
the federal Clean Air Act, which followed a
similar action by the State of Wyoming.
In its motion to file an amicus curiae brief,
Riverton Memorial Hospital states that it is
a non-Indian entity, organized under the laws of the State of
Delaware, but nonetheless, on February 18, 2015, was sued by
a member of the Northern Arapaho Tribe for medical malpractice in the Shoshone and Arapaho Tribal Court. According to
its twenty-one page brief, which includes 261 pages of appendices, the hospital must spend tens of thousands of dollars
and years to extricate itself from a court that has few rules and

statutes and no published case law, which renders everything

from basic procedural matters, to substantive law, to legal
exposure unascertainable. Worse, because the
tribal court impermissibly interprets its jurisdiction
very broadly and imposes strict and onerous tribal
exhaustion requirements, the hospital will have to
litigate the medical malpractice case on the merits
and appeal to the tribal appellate court. Only then
will it be able to appeal to a federal district court.
In December of 2008, both Tribes sought Tribeas-State status under 301(d)(2) of the Clean Air
Act, which provides an express congressional delegation to tribes of the EPAs authority to regulate
air quality on fee lands located within the exterior
boundaries of a reservation. The tribes expended
82 of their 87-page application arguing that they
possessed jurisdiction over Riverton.
More recently, the Farm Bureau filed its reply
brief and urged the appeals court to invalidate the
EPAs ruling, arguing that, in 1905, Congress made crystal
clear its intent to diminish the Reservation and nothing can
change the plain meaning of those words. In its opening brief
in December of 2014, the Farm Bureau argued that the EPAs
decision ignores more than one hundred years of actions by
Congress, Wyoming, the Tribes, and rulings by federal and
state courts including the Supreme Court of the United States.

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