Page One

TheLitigatorHard-Hitting Argument Forces Delay and Briefs

MSLF SAveS DAy At SupreMe CourtWinter 2013The Litigatoris published quarterly byMountain States Legal Foundation, a nonprofit, public-interest legal foundationdedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.

MOUNTAINSTATESLEGALFOUNDATION

Executive Offices:2596 South Lewis WayLakewood, Colorado 80227

303-292-2021Fax 303-292-1980

www.mountainstateslegal.org

sultation under the ESA. The Ninth Circuit panel issued its ruling over a scathing dissent—by four judges—that charged the panel, specifically, with issuing a ruling that departed from Ninth Circuit precedents and charged the Ninth Circuit, generally, with disregarding the rule of law in envi-ronmental regulation cases. In August 2012, the miners sought Supreme Court review. MSLF’s client, a Spokane, Wash-ington based, 118-year-old nonprofit, non-partisan trade association with thousands of members, asked the Supreme Court to hear and reverse the Ninth Circuit’s ruling because it failed to recognize the statutory right of miners to mine, failed to apply U.S. Forest Service’s regulations, and conflicts with the Supreme Court’s interpretation of “discretionary agency action” and arbitrarily expands the definition of “agency action” to include agency inaction.

In October 2012, the Supreme Court of the United States was prepared to meet and dismiss a stack of petitions for writ of certiorari, including one from miners in California. Then a brief by MSLF, on behalf of the Northwest Mining Association, arrived urging the Court to hear the crucial case and correct another terrible ruling by the U.S. Court of Appeals for the Ninth Circuit. The min-ing case was removed from conference and more briefs requested. Late last year, yet an-other brief was requested by the Court. MSLF had “saved the day!” The case is a complex one, but it boils down to the rights of Americans to use their property. Imagine a person owns a cabin on private property in a national forest. The Forest Service can not stop him from using his cabin; how-ever, he has to tell the Forest Service when he is coming. But what if, when the Forest Service gets his notice, it has to tell the Fish & Wildlife Service (FWS), which has the right to stop him if the FWS decides his use of his cabin might harm endangered species! That is what the Ninth Circuit ruled in this important case. Already environmental groups are using this ruling to stop people from using their private property. Fortunately, when the Supreme Court got MSLF’s brief, it asked the Obama Administration to file a brief. Obama’s Solicitor General filed a brief and said the case was not worth review by the Court. Then, the miners told

the Court that the Ninth Circuit’s rul-ing was being used to kill economic activity. The Court delayed the matter further and said it wants to hear from the people who started the case in the first place, an American Indian tribe. The Karuk Tribe of California is

a federally-recognized Indian Tribe that pursues en-vironmental litigation

opportunities in-volving streams

and rivers in the Klamath National Forest. In October 2004, the Karuk

filed a lawsuit in Califor-nia federal district court charging that the process used by the Forest Service to review Notices of Intent (NOIs) by miners to use suction drilling to mine their own claims is “agency action” un-der Section 7 of the Endangered Spe-cies Act (ESA) and triggers the Forest Service’s duty to engage in interagency consultation. Miners intervened in the lawsuit to protect their rights. In July 2005, the district court rejected the Karuk’s contention that the Forest Service’s receipt and review of a NOI triggered the ESA’s consulta-tion requirement; the Karuk appealed. In April 2011, a divided panel of the Ninth Circuit upheld the district court’s decision. After granting the petition for rehearing filed by the Karuk, a divided en banc panel held that the Forest Service’s NOI process, even when it results in a determina-tion that a plan of operations is not required, constitutes “agency action” under the ESA, and thus compels con-

TheLitigator Page Two

MSLF BAttLeS poStAL ServICe oN GuNS

DouBLe your MSLF GIFt! teLL tHe BoSS

WeB pAGe poLL Visitors to MSLF’s web site at www.mountainstateslegal.org responded to the following question: “A union requires its members to pay dues it uses to fund liberal causes; a member may ‘opt-out’ but the union keeps all funds. Is that constitutional?” One hundred percent (100%) said, “No: The Supreme Court ruled recently that the speech rights of union members beat those of the union.” Zero percent (0%) said, “Yes: The Supreme Court’s ruling is narrow and allows a union to use members’ dues to serve its interests.” Vote on the new question at MSLF’s web site today! Remember, the best way to keep abreast of MSLF’s precedent-setting, nationally-significant litigation is to check MSLF’s highly acclaimed web site. MSLF’s web site is updated at least every week and often daily. In particular, check for updates on MSLF’s “Legal Cases” and “Press Releases.”

Did you know that you might be able to double your gift for free? Thousands of companies match their employee’s charitable contributions. Matching gifts play a key role in help-ing MSLF fight its court battles. Please ask if your employer has a matching

gift program. Contact your human re-sources or personnel department to see if your company will match your gift to MSLF. Then, each time you mail your gift, please include a matching gift form from your employer. MSLF will do the rest!

peNDLey’S vIeW A Nebraska attorney seeks to apply a landmark ruling by the Supreme Court of the United States to his battle with a “union,” his bar association, that uses his dues for lob-bying activity. In Knox v. Service Em-ployees International Union, Local 1000, Justice Alito, for the 5-4 majority, held that the Court’s past rulings on the right of unions to use the dues of their members, “approach, if they do not cross, the limit of what the First Amendment can tolerate.” Members who object, wrote Alito, “should not be compelled to subsidize private groups or private speech.” Last year, Scott Lautenbaugh, an Omaha, Nebraska attorney and a Nebraska State Senator, filed a lawsuit against the Nebraska State Bar As-sociation in federal district court in Omaha. He believes that, because he is required to be a member of the State Bar Association, its partisan use of his dues constitutes government-com-pelled speech and violates his First and Fourteenth Amendment rights. Meanwhile, he filed a petition with the Nebraska Supreme Court asking that it “de-integrate the bar,” that is, make membership in the bar voluntary. Currently, membership in the Nebraska State Bar Association is mandatory for all attorneys practic-ing law in the State. The $345 annual dues is used, not only to regulate, discipline, and educate attorneys, but also to support a “Legislative Pro-gram,” which includes “the initiation, support, opposition, or comment on legislative matters,” at both state and local levels. In the last two years, for example, that program has lobbied on over 100 bills, including its opposition to legislation: expanding concealed carry permit rights, restricting emi-nent domain, and eliminating stat-utes of limitations for some felonies. The Nebraska State Bar Association moved to dismiss the lawsuit.

A rural Colorado man and a national gun rights group, both rep-resented by MSLF, filed final briefs seeking a ruling against the U.S. Postal Service in their lawsuit charging that the Postal Service’s ban on possession of firearms on its property vio-lates their right to “keep and bear arms” under the Constitu-tion. A Colo-rado federal district court twice denied the Postal Service’s motion to dismiss the case and required the agency to respond to the complaint. Tab Bonidy, who is licensed to carry a handgun and regularly carries a handgun for self-defense, drives 10 miles roundtrip from his home, where mail delivery is not available, to Avon, Colorado, to collect his mail. On his arrival in Avon, however, he is barred by federal regulation from carrying

a firearm, or parking his vehicle if it contains a firearm, on Postal Service property. In a July 2010 letter, Mr.

Bonidy asked that the regula-tion be withdrawn; the

Postal Service refused. Mr. Bonidy and the

National Asso-ciation for Gun Rights filed

their lawsuit in October 2010.

MSLF argues that the Second

Amendment protects the right in case of con-

frontation, that the Postal Service property at issue is

not “sensitive,” that the ban is so broad as to require heightened judicial scrutiny, and that the ban is not nar-rowly tailor to achieve a compelling governmental interest. In 2007, the Postal Service renewed its total ban on firearms on Postal Ser-vice property, which is broader than federal law and carries a $50 fine or imprisonment for 30 days, or both.

TheLitigator

Property owners in Juneau and Seward, for themselves and others facing the same situation throughout Alaska, sued State of Alaska Depart-ment of Natural Resources officials to block the State’s claim to the beds of small streams that cross private prop-erty. MSLF’s clients, Lacano Investments, Inc., Nowell Avenue Development, and Ava L. Eads, filed the class-action lawsuit claiming that land sought by the State was patented and sold as homesteads, mining claims, or townsites beginning over 100 years ago and continuing until statehood in 1959. When the lands were surveyed, federal surveyors set aside navigable rivers—“highways of com-merce”’—for the future State of Alaska. Small streams, which were not navigable, were included in the property that land-owners bought from the government. Since that time, the landowners treated these streams as their private property. In some location, they have been princi-ple sources of sand and gravel for several

cities; in other places they were filled in and are now the sites of commercial and residential development. Recently, Alaska’s Department of Natural Resources instituted a “Navigability Policy” that revisits these decade-old determinations by federal surveyors. Alaska says, if a recreational rubber raft can float down a stream, it is “navigable!” Then it uses air photos from 1959 to redraw property lines from the old survey plats, and when a landowner seeks a permit to use his land, Alaska says it owns the land and wants payment for a “lease.” In Juneau, Lacano Investments filed suit because, after it sought to mine gravel from a portion of Lemon Creek that was patented in 1913 and has been mined for gravel for 70 years, the State produced air photographic maps with new property lines and demanded a lease and royalty payments. In Seward, Alaska demanded leases and royalties from the owners of private property

as well as from the Kenai Peninsula Borough for removal of gravel from small streams that it now says are “navigable.” The dispute hinders flood mitigation efforts and added to the extensive damage Seward suffered in recent flooding. The lawsuit maintains that the landowners’ predecessors bought and paid for the land, that they and cur-rent owners paid taxes on it, and that they now own it. Moreover, Congress specifically confirmed their ownership in the Submerged Lands Act and the Alaska Statehood Act.

A controversial case in which MSLF has been involved since 2006, defend-ing Arizona voters who pro-posed and then prevailed with a ballot initiative to protect the sanctity of the ballot box, is before the Supreme Court. When oral arguments take place in mid-March 2013, a strong and authoritative legal brief by MSLF will be before each justice. MSLF argues that States have a constitutional right and duty to protect the sanctity of the ballot box and a ruling by the U.S. Court of Appeals for the Ninth Circuit that interferes with that right must be reversed. Proposition 200, which contained voter citizenship verification provi-sions, was adopted by Arizona voters overwhelmingly in November 2004. In May 2006, the Mexican American Legal Defense and Educational Fund (MAL-DEF) and others challenged those provi-sions. In October 2006, the Ninth Circuit

enjoined those provisions; however, the U.S. Supreme Court subsequently

reversed. An Arizona fed-eral district court, after 1.5 years of discovery, a six-day trial, and post-trial briefing, upheld the law in 2008. Then a three-judge panel overturned the district court by a 2-1 ruling, which was then heard by a Ninth Circuit en banc panel. In April 2012, the badly split panel held that Arizo-na’s law did not violate either the Voting Rights Act or the

Equal Protection Clause but conflicted with the National Voting Rights Act. In July 2012, Arizona asked the Court to hear the case; MSLF joined in supporting Arizona’s petition in August 2012 and in October 2012, the Court agreed to hear the case. MSLF argued that the en banc ruling conflicts with fundamental principles of federalism, rulings of the Supreme Court, and hold-ings by other federal courts of appeals.

Page Three

MSLF: prove CItIZeNSHIp tHeN vote

ALASKA LANDoWNerS FIGHt StAte over property rIGHtS

DISSeNtS FroM epA Two federal appellate court judges dissented from the refusal of the U.S. Court of Appeals for the District of Colum-bia to rehear en banc the decision of a three-judge panel upholding the December 2009 decision of the Environmental Protection Agency (EPA) regarding climate change. MSLF had urged the panel, in a friend of the court brief, to vacate and remand the decision to the EPA because it violates a host of statutory provisions and is based on selective, unreasonable readings of the administrative record. Nonetheless, the panel held EPA’s actions to be neither arbitrary nor capricious and based on a correct legal interpretation. The two strong dissents increase the possibility that the U.S. Supreme Court will hear the case. MSLF argues that the EPA issued its rule hastily to honor political commit-ments prior to an international climate change conference and that there is no evidence to support its rule. The EPA announced that it has “95% confidence” that green-house gas emis-sions (GHG) pose a high risk of extreme harm to the American public, the so-called Endangerment Rule. The EPA’s 2009 findings follow a 2007 Supreme Court decision that the EPA has author-ity to regulate GHG emissions using the Clean Air Act. MSLF became involved in this important matter in February 2010. The test of the EPA’s actions ques-tions the 2009 decision and a subsequent refusal by the EPA to reconsider the deci-sion based on new evidence.

TheLitigator

ArIZoNA StoCKMeN Get GrAZING WIN

No WyoMING GrouSe reStrICtIoNS

An attempt by two environmental groups to require the U.S. Forest Service to engage in full-blown environmental impact studies each time it reauthorizes a grazing permit was defeated late last year when an Arizona federal district court granted summary judgment in favor of MSLF and its clients. The Arizona Cattle Growers’ Association, the Public Lands Council, Orme Ranch, Inc., and Bert Teskey, which were all represented by MSLF, maintained that Congress made clear that no EISs under the National Environmental Policy Act (NEPA) are required. Prior to briefing and oral arguments in the lawsuit, the two environmental groups dropped challenges to seven of the Forest Service decisions. In its December 2012 ruling, the court up-held the Forest Service as to seven of the remaining eight decisions. As to one other allotment, which contained significant archeological resources, the district court held the Forest Service did

not conduct any analysis. In fiscal years 2005 through 2007, the Forest Service, without conduct-ing environmental reviews pursuant to NEPA, reauthorized several grazing permits on lands managed by the Forest Service. In August 2011, the Western Watersheds Project and the Center For Biological Diversity filed a lawsuit alleging that 17 of the reauthoriza-tions—seven 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 Mexico—violated NEPA. The lawsuit was filed despite the clear intent of Congress that the Forest Service is not required to do the reviews. In 2005, Congress directed that reauthorization of grazing permits is “categorically excluded” from NEPA if the Forest Service makes certain deter-minations. Up to 900 allotments are thus reauthorized.

Page Four

Late last year, two Wyoming as-sociations celebrated a ruling by an Idaho federal district court that rejected demands by an environmental group to restrict federal land use as part of the court’s 2011 ruling that the Bureau of Land Management (BLM) violated federal law in preparing a Resource Management Plan (RMP). In so ruling, the district court agreed with the Wyoming Stock Growers As-sociation and the Petroleum Association of Wyoming, which after days of hear-ings in April 2012, filed a brief advising the court that the environmental group may not tell the BLM how to perform its job nor is the group entitled to “in-terim measures” while the BLM acts. On behalf of its clients, MSLF advised the district court that the group had not demonstrated there was a likelihood of irreparable harm or that it would suffer any hardship.

The lawsuit contends that 16 RMPs, which involve tens of millions of acres of federal land in six western States, are de-

fective as they relate to the sage-grouse. By court order, the parties briefed two test cases, the Pinedale (Wyoming) RMP and the Craters of the Moon National Monument (Idaho) RMP.

Since 2006, the BLM has issued 16 RMPs, as to tens of millions of acres

of purported greater sage-grouse habitat in California, Idaho, Montana, Nevada, Utah, and Wyoming, which set out the permissible uses of the lands and outline the conditions under which each use will be allowed. Each RMP permits, under certain conditions and with various limi-tations, extractive uses such as oil and gas development and livestock grazing.

In December 2008, the Western Wa-tersheds Project challenged the RMPs al-leging that the BLM had failed to protect various sage-grouse populations.

The Montana Farm Bureau Federa-tion, the Idaho Farm Bureau Federation, along with MSLF, which acted as their attorney, won a key victory when the U.S. Court of Appeals for the Ninth Circuit granted their motion to moot appeals filed by environmental groups to put wolves in Idaho and Montana on the Endangered Species Act (ESA) list and to vacate a ruling by a Montana federal district court.

MSLF and the two ranching as-sociations had intervened in a June 2009 lawsuit by environmental groups in which the Montana court, in July 2009, struck the April 2009 decision of the U.S. Fish and Wildlife Service (FWS) to remove the northern Rocky Mountain gray wolf from ESA protec-tion in Idaho and Montana. After the Montana district court’s ruling, which was appealed, Congress passed and President Obama signed a law that re-quired delisting of the wolf. The groups challenged the law’s constitutionality but the district court upheld the law; then, the groups appealed to the Ninth Circuit. In March 2012, a three-judge panel of the Ninth Circuit rejected the appeal and ruled Congress amended the ESA, which the Supreme Court has held Congress may do. Subsequently, however, environ-mental groups sought to make use of the Montana federal district court’s July 2009 opinion as a legal precedent in other cases. The ruling by the Ninth Circuit panel, mooting the appeals and vacating the ruling, make that impossible.

WoLF CASe vACAteD

TheLitigator Page Five

Mountain States Legal Foundation (MSLF) Is A Nonprofit, public-Interest Legal Foundation, that Is A 501(c)(3) organization,Since Its 1977 Founding.

therefore, your GenerousContributions to MSLF Are tax Deductible!

MSLF CANNot reSt; ItS roLe eSSeNtIAL to reMAINING Free In 2013, MSLF will have been going to court for 36 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 less-ened. In fact, as the federal bureaucracy has grown and as federal laws have become more far-reaching and intrusive, MSLF’s caseload has increased dramati-cally. That is obvious from a review of the scores of MSLF cases.

your Support Is vital If there is one lesson MSLF has learned over the past 36 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 isthe price that tens of thousands of Amer-icans pay annually by making their tax-deductible contributions to MSLF and its litigation. 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!

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

MSLF’s 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.

MSLF’s 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 one’shard-earned income.

Gift giving decreases taxes while advancing charitable goals.

Although many mechanisms for legally lowering taxes have been eliminated, the opportunities for reducing taxes by charitable giving remain!

Income Tax – A person may deduct up to 50 percent of his or her ad-justed 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 2013, including charitable deductions, are reduced for individuals earning $250,000 (married couples earning $300,000) or more. Please consult your tax adviser.Estate Tax – A person who dies in 2013 is entitled to an exclusion of up to $5,250,000; however, estates in excess of that amount may deduct charitable gifts, by will or trust. Because 2013 federal estate taxes over $5,250,000 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 your tax adviser. MSLF does not provide tax advice.

Contributions of stock can be made electronically to MSLF’s brokerageaccount DTC 0164. When transferring stock, indicate acct. #7080-3528, Charles Schwab & Co., 518 17th St., Suite 100; Denver, CO 80202.

(Adam J. Rehmer 303-260-5916; Fax: 303-260-5095).

Please notify MSLF BEFORE making the transfer; there is no way to identify a stock donor without prior notification.

problem u

Solution u

reason u

the Means u

Stock u

transferInformation

GIFT: $ ____________ o $1000 o $500 o $250 o $100 o $50 o $25o Check Payable to Mountain States Legal Foundation (MSLF)o Credit Card ___MC ___Visa ___Discover ___AmEx

Credit Card # _________________________________________________________________

CVV# (3 digit code on back of card) ___________________ Exp. Date _______________

Signature _____________________________________________________________________

NAME (Please print) _______________________________________________________________

ADDRESS ________________________________________________________________________

CITY ______________________________________STATE ____________ ZIP _______________

PHONE __________________________________________________________________________

EMAIL ___________________________________________________________________________o Yes, I want to help MSLF in its defense of constitutional liberties and the rule of law.

MSLF is a 501(c)(3) nonprofit legal foundation; contributions are tax-deductible pursuant to law.o I/We put MSLF in my/our will; (print name) _______________________________________.

TheLitigator

February 6, 1911 was Ronald Wil-son Reagan’s birthday. Although much is known about the 40th President of the United States, one thing is little known: he was a big fan of MSLF and its defense of constitutional liberty and the rule of law. That may be surpris-ing. What should not be surprising is that President Reagan was very knowl-edgeable regarding natural resources, environmental, and western federal lands issues.

After all, he was Governor of Cali-fornia and, despite that most Americans think of the Golden State only in the context of Hollywood, Los Angeles, and San Francisco, it is a vast public lands State akin to States in the Mountain West. Nearly half of Califor-nia is owned by the federal government and managed by vari-ous departments and agencies including the Bureau of Land Man-agement, the Bureau of Reclamation, the U.S. Army Corps of Engi-neers, the U.S. Forest Service, the National Park Service, and others. From 1967 to 1975, Governor Reagan dealt often with the federal government, not just when it acted as a sovereign as did other gover-nors, but also when it was a California landowner and a neighbor.

That was not all. In January 1975, shortly after he left office, Governor Reagan completed writing a first set of planned radio commentaries, recorded 13 future radio addresses, and awaited publication of his first newspaper col-umn. For almost five years—with only a break from November 1975 through August 1976 when he ran for the Repub-lican nomination for president—Reagan drafted and then delivered 1,027 radio commentaries of which 673 were writ-ten in his own hand. Over two-thirds of the radio addresses discussed domestic issues, such as energy and the environ-ment, which Reagan covered frequently. Governor Reagan discussed, in signifi-

cant and painstaking but thoroughly understandable detail, subjects such as oil and gas, gasoline shortages, nuclear power, endangered species, federal land use planning, coastal zone management, DDT, seal hunting, Alaska lands, federal lands, private property rights, conserva-tion, the environmental movement, pol-lution, redwoods, wilderness, grazing, lumbering, mining, outdoor recreation, coal, irrigation projects, solar power, the Sagebrush Rebellion, and much more.

It was not just the breadth of the is-sues that Reagan covered, it was also the depth of his analysis and the degree to which he demonstrated his understand-

ing of the subject matter and the federal agencies involved. The ease with which he slipped from de-partment to department and bureau to bureau, often delving into archaic minutia that only federal bureaucrats would have reason to know, reflected not someone who spent past lives in Hollywood, on the “rubber chicken circuit,” or in Sacramento, but a well-read scholar, keen observer, and

thoughtful analyst who knew his way up and down Pennsylvania Avenue.

In his final radio address before he ran for president, Governor Reagan delivered remarks he entitled “Miscel-laneous and Goodbye.” “The first item is, in my opinion, very serious for all of us and another indication of how far we are straying from the very basics of our system. The Mountain States Legal Foundation has filed a suit with the federal government claiming that the constitutional rights of several states are being violated….” Governor Reagan then described another landmark case by MSLF and the shocking response of the federal government.

It is little wonder that Ronald Rea-gan called himself a “Sagebrush Rebel,” campaigned as one, and ended a War on the West that was condemned by western leaders of both political parties. Happy Birthday, Mr. President!

HAppy BIrtHDAy preSIDeNt reAGAN! MINerS StAy ALIveAn attempt by the Obama Admin-

istration to dismiss a lawsuit filed by MSLF, on behalf of the Northwest Min-ing Association (NWMA), failed. The group, a 118-year-old nonprofit, non-par-tisan mining trade asso-ciation with thousands of members will now con-tinue with its challenge to an illegal lock-up of a mil-lion acres of federal land in northwestern Arizona. In its March 2012 complaint, the NWMA, of Spokane, Washington, asserted that Interior Secretary Salazar’s January 2012 order withdrawing the land from entry under the General Mining Law, to block all access to hundreds of millions of pounds of the highest-grade uranium ore in the nation, violates many federal laws.

In early January 2013, an Arizona federal district court rejected a motion filed by Salazar to dismiss the NWMA on various grounds; the district court did hold that the NWMA could not sue under the National Environmental Policy Act (NEPA). The NWMA’s other claims regarding the “Arizona Strip,” which is federal land managed by the U.S. Forest Service and the Bureau of Land Man-agement (BLM), including violation of the National Forest Management Act (NFMA), and the Federal Land Policy and Management Act (FLPMA), remain.

In January 2012, Secretary Salazar withdrew from operation of the General Mining Law 633,547 acres of BLM lands and 360,002 acres of National Forest lands in the Arizona Strip for up to 20 years allegedly to “protect the Grand Canyon watershed from adverse effects of locatable hardrock mineral explora-tion and mining.”

Page Six

Keep reADING! The Litigator, MSLF’s quarterly newsletter, is the indispensable tool for staying informed regarding the latest in MSLF’s precedent-setting, nationally-significant, public-interest litigation. The Litigator is mailed on the first of February, May, August, and November. Ensure that you keep receiving The Litigator by contributing $25 annually.

TheLitigator Page Seven

LeGAL

ACtIoN

NotABLe

QuoteS

n The U.S. Court of Appeals for the Tenth Circuit denied a petition by a Wyoming man to rehear en banc his challenge to the federal seizure of private property for a high-altitude bicycle trail.

n The Supreme Court of the United States denied a petition by a New Mexico woman who was barred the right to put a gate on her fence; the Tenth Circuit ruled the lawsuit untimely: the Code of Federal Regulations put her predecessors on notice of the expansive regulatory authority of the U.S. Forest Service.

n MSLF joined with other liberty-based public interest legal foundations and think tanks to urge the Supreme Court to hear an egregious “taking” without “just compensation” case from Guam that may be the case to reverse the infamous Kelo v City of New London decision.

“Keep up the good work!”Charles A. Fowler, IIIAnnapolis, MD

“[Y]ou folks…are the firewall.”Robert H. PetersenSusanville, CA

“Keep up the good work.”Vincent G. RobinsonRochester Hills, MI

“I know you are a good organization and doing a worthy, honorable work.”Libbie R. Den HartogShelley, ID

“God Bless you in all you can do for us here in America..”Gene SchreibeisWorland, WY

“Keep up the good work.”Richard V. WinderPolk City, FL

“Thanks so much for keeping so many people and companies out of trouble.”W.H. VromanBuffalo, SD

“Protect us from government take-over. May you have great support from all areas.”Clifford N. HallWinnebago, IL

“[K]eep up the good work and keep up the pressure on the [] liberals.”Bill HowardTucson, AZ

“I’m so glad that you…fight so hard for our rights, individual liberties, and what is right in protecting our freedoms.”Robert D. WagnerCasper, WY

“Keep up the good work!”Carl C. SteelSt. Louis, MO

“Thank you for all you are doing.”William A. LowryJordan Valley, OR

“Thank you for all you do. There are so many fires to put out.”Irene DuBoisCorona, CA

“Keep up the good work and good luck.”Michael G. GibsonWalnut, CA

“Keep up the good work. God bless.”Tex FreemanPueblo West, CO

“[Y]ou are right—freedom is not free! Please continue the good work you do—with vigor!”James A. BowmanKiowa, CO

“Keep fighting!”Paula L. JohannesRochester, WA

“Restore our Republic.”Marilyn S. SoissonLakewood, CO

“Keep up the good work.”Franklin AndersonIgnacio, CO

“You’re doing very important work. Thank you!”Joseph LevineFlushing, NY

“Keep up the good work!”H.K. Henry, Jr.Coronado, CA

“Keep up your outstanding work.”William HendrixRed Bluff, CA

“Your Amicus to SCOTUS [on the] individual mandate is a constitutional tuto-rial regarding individual and State’s rights and limited powers.”Neil W. BottingFlorissant, CO

“Take back our liberty and freedom!”Emil C. CaburaoSan Antonio, TX

“I very much appreciate your updates, and most of all for defending our Constitution!”John HawksBerthoud, CO

“Difficult times … make your advocacy all the more indispensable.”James H. PorterCastle Rock, CO

“Thank God for MSLF.”Billy StanfordWaterford, CA

FIFty yeArS oF FeDerAL SupervISIoN uNCoNStItutIoNAL Late last year, MSLF filed its scholarly brief urging the Supreme Court of the United States to reverse a ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia that upheld the constitutionality of a federal law that places a southern county under the direct supervision of the Attorney General of the United States 48 years after the law’s enactment. Earlier, MSLF had urged the Court to review the important constitutional case, which the Court agreed to do in November 2012. Under Section 5 of the Voting Rights Act (VRA) Shelby County, Alabama, as a “covered” jurisdiction, must get approval from Attorney General Eric Holder or from a federal court before making any change in a voting “standard, practice, or procedure.” Shelby County challenged the provision’s constitutionality, but, in a 2-1 rul-ing, the panel upheld Section 5 over MSLF’s objections, which included that, while application of Section 5 of the VRA to Shelby County was proper in 1965, it is no longer required and Congress’s 2006 reauthorization of the VRA is unconstitutional. MSLF urged the Supreme Court to review the matter under its heightened standard of review. MSLF asserted in its brief that the Supreme Court has ruled that there is only one test to be applied to determine the constitutionality of the use of

Congress’s Enforcement Clause power; that test is the “congruency and proportionality” standard. Applying it, Section 5 is unconstitutional. Section 5, Congress’s most intrusive involvement in State sovereignty, bars a “covered jurisdiction” from “enact[ing] or

seek[ing] to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting, different from that in force or effect on November 1, 1964” unless it submits that request for preclearance to the Attorney General or the District Court for the District of Columbia, and it is determined that such proposed enactment does not have “the purpose . . . [or] effect of diminishing the ability of any citizens of the United States, on account

of race or color, or [language minority status], to elect their preferred candidates of choice[.]” Section 5 still applies to the entire State of Alabama, includ-ing Shelby County, and was left unchanged when, in 2006, Congress reauthorized the VRA for another 25 years. In the last ten years, Shelby County has filed for preclearance numerous times, expended significant taxpayer dollars, time, and energy to meet its obligations, and has had at least one election delayed in order to ensure compliance with the preclearance obligation of Section 5. Shelby County filed its lawsuit in April 2010.

Non Profit Organization

U.S. Postage

PAID

Denver, CO

Permit No. 847

MOUNTAINSTATESLEGALFOUNDATION

2596 South Lewis WayLakewood, Colorado 80227ADDRESS SERVICE REqUESTED

preSIDeNt AND CHIeF operAtING oFFICerWilliam Perry Pendley

vICe preSIDeNt AND CHIeF LeGAL oFFICerSteven J. Lechner

vICe preSIDeNt–ADMINIStrAtIoNJanice K. Alvarado

eXeCutIve CoMMIttee

John R. Gibson, NV: ChairmanJohn J. Blomstrom, WY: Vice ChairmanFrank S. Priestley, ID; SecretaryPeter K. Ellison, UT; TreasurerStephen M. Brophy, AZDavid Allen New, IDL. Jerald Sheffels, WADon Sparks, TX