New attorney general needs to hit the ground running on issues involving federal land agencies

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Newly elected Attorney General Adam Laxalt has promised to make a priority of defending the state and its businesses and residents against overzealous federal encroachment on rights to use public and private land within the state of Nevada. He says he is already talking to Gov. Brian Sandoval about this topic.

He may find more ammunition and allies in this fight than he is aware.

On the very day Laxalt and Sandoval were elected, a federal judge in Utah was slapping down the U.S. Fish and Wildlife Service for overstepping its constitutional authority.

In a 16-page ruling, U.S. District Court Judge Dee Benson ruled that Fish and Wildlife has no authority to regulate what happens to the endangered Utah prairie dog on private land, because the Commerce Clause does not give Congress the ability to create laws regulating “a purely intrastate species that has no substantial effect on interstate commerce.”

The Endangered Species Act prohibits the “taking” of endangered or threatened species, which means to “harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect.” Harm includes any “significant habitat modification or degradation where it actually kills or injures wildlife by
significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”

Presumably that includes plowing or irrigating one’s own land.

Fish and Wildlife is currently seeking to list the greater sage grouse as threatened or endangered under the Endangered Species Act. Though the range of the grouse includes Nevada and 10 other Western states, is there any substantial interstate commerce involved?

The courts have been overly generous in interpreting the Commerce Clause, including in the New Deal era allowing a farmer to be fined for growing more than his quota of wheat even though he fed it to his cattle and never tried to sell it in interstate commerce. The fact he did not have to buy wheat affected interstate commerce the court deduced.

But that classic convoluted rationale may be waning on the halls of justice.

Take for example the comments of Chief Justice John Roberts in the ObamaCare case: “The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to ‘regulate’ something included the power to create it, many of the provisions of the Constitution would be superfluous.”

That’s why one can be “taxed” for failing to buy health insurance, because Congress has the power to tax. But Congress does not have the power to coerce people into engaging in commerce with a “fine.” A distinction without a difference.

Laxalt, who has promised to “aggressively file lawsuits against Fish and Wildlife and the EPA regarding the sage grouse,” may also have an ally in Oklahoma Attorney General Scott Pruitt, who earlier this year sued Fish and Wildlife over its “sue and settle” ruse involving the listing of the Lesser Prairie Chicken.

“Increasingly, federal agencies are colluding with like-minded special interest groups by using ‘sue and settle’ tactics to reach ‘friendly settlements’ of lawsuits filed by the interest groups. These settlements, which often impose tougher regulations and shorter timelines than those imposed by Congress, are having a crippling effect on the U.S. economy,” Pruitt said.

That is precisely what happened with the greater sage grouse, the agency entered into a consent decree with environmental groups who had sued the agency with a wink and a nod.

We call on Attorney General Adam Laxalt to come out of the chute with both spurs high on the shoulders of the federal land bureaucrats. — TM

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