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William Perry Pendley

William Perry Pendley: Backing The Blue+

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By William Perry Pendley, columnist
Mr. Pendley, an attorney, led the Bureau of Land Management for the final 18 months of the Trump administration. He is on Twitter @Sagebrush_Rebel.

On a sunny, spring day in May of 2018, Bureau of Land Management (BLM) Law Enforcement Rangers Bryce Stewart and Karl Hilderbrand approached a van on a mesa on public land near Grand Junction, Colorado. 

Suddenly, their welfare check turned into a shootout when the driver unholstered a .357 magnum revolver and opened fire.  Their superior training, instantaneous response—heightened given they were returning from the shooting range—and a ballistic vest ensured a successful conclusion to the firefight.

Less than fourteen months later, they were at the U.S. Department of the Interior in Washington, D.C. to receive the Department’s Valor Award, its highest, from Secretary of the Interior David L. Bernhardt. 

Prior to the ceremony, I met with them, viewed their body-cam footage, and heard what happened on that mesa.  That was my introduction to the BLM and convinced me of three things. 

First, the BLM’s nearly 300 Rangers and Special Agents, responsible for 245 million acres of federal land, mostly in the 11 western States and Alaska, cannot protect visitors, public servants, and valuable resources alone. 

Second, Rangers must wear state-of-the-art body cams and the agency must be able to archive and retrieve the footage. 

Third, because of their often-dangerous work, alone in the field, in the middle of nowhere, Rangers must know they have the support of leaders who are knowledgeable, experienced, and up to date.

One of the first actions of the Trump administration was to reinstate the law enforcement agreements with county sheriffs across the West that had been abrogated by Obama officials. 

These contracts between the BLM and local law enforcement agencies demonstrate support for local sheriffs, prevent duplication of effort, and ensure that all law enforcement entities operate efficiently, effectively, and cooperatively.  Their value was demonstrated to me often while I was with the BLM.

Early on, the Colorado Highway Patrol sought assistance in the pursuit of two felons near the Four Corners. 

A BLM Ranger joined the chase and the pair were arrested by a Cortez police officer.  Later, the sheriff in Mohave County, Arizona got a call for help for a family whose car was trapped in deep snow after following a GPS on a winter-closed road. 

The sheriff summoned a National Park Service and BLM Ranger.  The latter, a veteran of two overseas tours, knew the area well and, with local law enforcement, rescued everyone.  Then in December of 2019, an alert went out in Billings, Montana for an American Indian teenager gone missing. 

I called the BLM State Director and ordered “all hands-on deck” in the search, which was joined by federal, tribal, state, and local law enforcement officers.  Sadly, it ended tragically.

Because I kept remembering the body-cam footage of the Colorado shootout and because I knew that the local district attorney was able to declare it “justifiable” in less than two weeks based on that footage, I pushed the notoriously slow government procurement process to get all Rangers bodycams, the agency a sophisticated storage system, and the bureau a mandate to wear them on duty.  Minutes before the fiscal year expired, we got it done.

As riots swept across the country in the late spring of 2020, I feared the worst, but I did not anticipate what would befall our country. 

I gathered all bureau law enforcement officers in a virtual meeting, told them of my concerns, urged that they follow their superior training, including deescalating conflict, and assured them that, at the end of the day, “I have your back.” 

I heard from many that no director had ever told them that, but it was not just me.  President Trump’s support for law enforcement was well known and was reflected by leaders throughout his administration. 

It is a far cry from today where, for example, President Biden threatens the career of officers in U.S. Customs and Border Protection for doing their jobs.

Throughout that long summer, I worried as Rangers backed up local law enforcement in small towns across the West, as Rangers flew to Washington, D.C. to support their National Park Service brothers and sisters in law enforcement, and as Rangers patrolled alone across vast stretches of public land experiencing double the visitors due to COVID. 

If we believe in law and order, in a civil society, and civilization itself, we must support law enforcement, we must back the blue, and we must fund the vital role they play in our society.  One way for me to do that at the BLM was to ensure they had the leadership they deserved.

In 2002, the Inspector General of the Department of the Interior, in response to a request from Secretary Gale Norton after the terrorists’ attack of 9/11, issued scores of recommendations to reform the Department’s law enforcement agencies, not just the BLM, but also the Park Service, Bureau of Reclamation, and Fish & Wildlife Service. 

Most of them were implemented over the years, but not the most critical, which required LEOs to report up the chain-of-command to other LEOs. 

Instead, the decades old system of state directors and district and field managers with a scant 24-hours of law enforcement training supervising Rangers and Special Agents, remained in place, despite the recommendation of all outside law enforcement agencies.  With the support of the Western States Sheriffs’ Association (WSSA), we accomplished it.

Last year, when President Joe Biden nominated as a BLM director someone whose ethically challenged and criminal encounters with federal law enforcement made her unqualified, the WSSA was one of two national outfits to oppose her confirmation. 

Good for you.  My advice to you is to keep it up.  Speak up for the men and women who put you in office and all who live, work, and recreate in your community.  Speak up for your deputies and their families.  Speak up finally for your country and its enduring, extraordinary, and exacting principles.

+Excerpted from a keynote address earlier this year to the Western States Sheriffs’ Association (WSSA) Convention. The WSSA is headquartered in Laramie, Wyoming.

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Bureau of Land Management Yesterday and Today: Energy Independence

in William Perry Pendley/Column
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By William Perry Pendley, guest columnist*

What happened?  Only yesterday, the United States was energy independent with low priced, reliable energy supplies, which came from our country thus freeing us from sending our young men to war or making geopolitical decisions because of our need for foreign energy. 

Today, we are no longer energy independent, we are suffering the highest energy prices ever, the president is going hat-in-hand to foreign energy producers begging for oil, and we are dumping oil out of the strategic petroleum reserve as if we were at war, at which we might soon find ourselves.

President Reagan, after the economic disaster that was the Carter administration, knew energy independence was key to a strong America.  It would ensure reliable, low-cost energy vital to economic activity; it would create high-paying domestic jobs, and it would free us of our dependence on unstable or evil intentioned foreign sources.  Reagan’s basis was not his well-known optimistic outlook. 

It was the result of his careful study of the matter and his conclusion that government predictions of dwindling petroleum resources were always wrong. 

Thus, he faulted Carter, not just for his prediction that we would run out of natural gas by 1990, but also for his refusal to drill for oil and gas in the American West.  What are you afraid of Reagan taunted, that “more strikes [discoveries] will be made?”

Reagan was right, of course, as revealed for example when the late Mick McMurry searched for natural gas on worked-over Bureau of Land Management (BLM) leases in Sublette County. 

Using fracking technology, which has been around since the 1860s, but in regular use since 1947 (hardly new and controversial, it is tried and true), in 1993, he made the biggest natural gas discovery in history—the Jonah Field. 

At the same time, fracking used on private and state lands across the country led to the discovery of more vast shale deposits—the Barnett, Haynesville, Fayetteville, and the Marcellus in Pennsylvania.  So vast was the Marcellus in the Keystone State that, at one time, seven out of every ten new jobs there were in the oil patch.

Of course, the Marcellus also underlays New York to the north.  In fact, because thirteen of the state’s highest producing gas wells are in Susquehanna County in northeastern Pennsylvania, Broome County across the state line in New York has great natural gas potential. 

Unfortunately, in 2014, Governor Cuomo outlawed fracking and barred 70,000 property owners across a million acres in fourteen counties from using their property and denied the region clean burning natural gas.

Meanwhile, President Obama was doing the same thing on federal lands, including the 245 million acres managed by the BLM, mostly in the eleven western states and Alaska.  Why became clear in 2012 in a meeting Obama held with a few industry leaders. 

Harold Hamm, who unlocked another rich shale play, the Bakken in North Dakota, and was eager to tell Obama of “the revolution in the oil and gas industry and how we have the capacity to produce enough oil to enable America to replace OPEC.” 

Obama dismissed him with a wave of his hand.  “Oil and gas will be important for the next few years,” said Obama. “But we need to go on to green and alternative energy” and then predicted a battery that would all but replace the internal combustion engine by 2017. 

Not surprisingly, Obama refused to issue oil and gas leases on federal lands as mandated by the Mineral Leasing Act of 1920 to permit the West to join in the fracking revolution.  Westerners sued.

When President Trump took office, like Reagan, he believed in energy independence, put in place policies to achieve it, and aggressively pursued what he called “energy dominance.” 

In November 2018, the BLM held its largest oil and gas lease sale in history in New Mexico’s Permian Basin, netting $1B in bids, which is nothing compared to the royalties to be paid to the government and shared with state and local governments once production begins. 

It is not surprising that, by July 2019, America, for the first time since 1957, achieved energy independence.

Sadly, it did not last long.  President Biden began on his first day in office by killing the Keystone XL Pipeline, cancelling all federal oil and gas lease sales, and initiating imposition of Draconian rules and regulations to rendered oil and gas production less economical. 

Thereafter, his administration took steps to end investment in the oil and gas industry, including that needed by wildcatters—independent oil and gas operators who find hydrocarbons where no one thinks they exist. 

After Biden’s BLM officially halted the quarterly oil and gas lease sales required by federal law, westerners and others sued and a Louisiana federal judge ruled the “pause” illegal and issued a nationwide injunction. 

Nonetheless, the Biden administration refused to comply with that order. 

As a result, Wyoming, for example, now enters its sixth quarter without a BLM lease sale hampering the Equality State’s ability to discover, develop, and deliver desperately needed oil and gas resources.  

What a difference a BLM makes.

*Mr. Pendley, a Wyoming attorney, led the Bureau of Land Management for the last 18 months of the Trump administration and is author of Sagebrush Rebel:  Reagan’s Battle With Environmental Extremists and Why It Matters Today.

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William Perry Pendley: Governors and Attorneys General Are Suing, And That’s A Good Thing

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By William Perry Pendley, guest columnist

In 1994, my pro bono clients—the American Farm Bureau Federation and the farm bureaus of Idaho, Montana, and Wyoming—were in Wyoming federal district court challenging—as a violation of the Endangered Species Act—the plan by President Bill Clinton’s Secretary of the Interior Bruce Babbitt to import wolves from Canada and introduce them throughout the tri-state area. 

Just as proceedings began, the U.S. Department of Justice attorney representing the United States rose and intoned, “Your honor, I ask the court to take judicial notice of who is not sitting at the plaintiff’s table, specifically the governors of Idaho, Montana, and Wyoming.  They are not there because they support the administration’s plan.”

The lawsuit continued for another decade when it ended with an unfavorable ruling for my clients before the U.S. Court of Appeals for the Tenth Circuit, but it was dead on arrival after that opening pronouncement by the federal government.

That governors affected by Babbitt’s Canadian wolf plan eschewed litigation was pretty much the norm at that time. 

Earlier, the governors of California, Oregon, and Washington were on the sidelines while lawsuits over the northern spotted owl killed thousands of logging jobs, shut down mills, and devastated tiny towns. 

Later, despite the pleas of elected officials in the San Joaquin Valley, including many Latinos, Gov. Arnold Schwarzenegger declined to battle federal officials’ demand that water supplies to farmers be shut off to save the delta smelt.

That appears to have changed dramatically. 

Just last week, for example, North Dakota sued federal agencies and officials in federal district court in Bismarck alleging that President Biden’s moratorium on statutorily mandated federal oil and gas lease sales has cost the state nearly 100 million dollars and, if continued for another year, will cost $5 billion in revenue. 

Meanwhile, half a billion barrels of oil will remain in the ground.

Thus, North Dakota joined fourteen other states that sued over President Joe Biden’s Executive Order, as implemented by the U.S. Department of the Interior and the Bureau of Land Management. 

On March 24, Louisiana and twelve other states filed their lawsuit in the Western District of Louisiana, targeting not just the onshore impact, but also that affecting leasing on the Outer Continental Shelf. 

The same day, Wyoming sued in Wyoming federal district court.  A month ago, as has been reported widely, the Louisiana federal district court judge ruled Biden’s so-called Pause on oil and gas leasing violated federal law and issued a nationwide injunction.

After noting that “States are not normal litigants for purposes of invoking federal [court] jurisdiction,” the judge explained that a state is granted “special solicitude” in meeting the constitutional test for Article III standing if it alleges that a federal defendant violated a “congressionally accorded procedure right” affecting that state’s “quasi-sovereign” interest, such as “its physical territory or lawmaking function.” 

Louisiana and the other states sought that “special solicitude” but also alleged they satisfied the normal standing inquiry because of harm done by President Biden to their “sovereign, proprietary and parens patriae interests.” 

Given the “alleged loss of proceeds [on] new oil and gas leases on federal lands and waters, from bonuses, land rents, royalties, and other income [as well as the] loss of jobs and economic damage,” the judge found the injuries suffered by the States “are concrete, particularized, and imminent.”

If, as the district court judge noted, “States are not normal litigants,” how is it that so many of them on this issue—and more on other matters—are “invoking federal [court] jurisdiction?” 

Part of the answer comes from Interior Secretary Deb Haaland’s justification for the Pause, which is that the federal oil and gas program is “fundamentally broken.” 

That is certainly her opinion; however, it is not shared by Congress, which requires quarterly onshore oil and gas lease sales.  Moreover, the Constitution entrusts solely to Congress all responsibility for public lands.

That Biden has moved so abruptly, unilaterally, and often lawlessly across so many fronts that directly affect the lives, livelihoods, and futures of American citizens—without any effective response from Congress itself—explains why governors and attorneys general are rushing to the federal courthouse. 

We who love liberty and the rule of law only hope they continue to do so.

Mr. Pendley, a Wyoming native, led the Bureau of Land Management during the Trump administration.  Follow him @Sagebrush_Rebel.

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Pendley: American Rescue Plan Is Unconstitutional! Certainly, The Part Dividing Americans By Race

in William Perry Pendley/Column
Photo credit: Kevin J. Beaty/Denverite
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By William Perry Pendley, columnist
Mr. Pendley, a Wyoming attorney, led the Bureau of Land Management in the Trump administration

Antonio Vitolo is the owner, with his wife, of Jake’s Bar and Grill in Harriman, Tennessee, a town of fewer than 7,000 in Roane County, west of Knoxville.  Like all restaurants, but especially small ones, Jake’s suffered mightily following government-imposed lockdowns in response to the COVID-19 Pandemic. 

Therefore, when the American Rescue Plan Act passed with promised relief— the Restaurant Revitalization Fund—Mr. Vitolo applied to the Small Business Administration, which runs the program, on the first day.  After all, time was of the essence.  Awards are made first come, first served, and the funds will soon run out.  Mr. Vitolo was not eligible, however; he is white!

Represented pro bono by the Wisconsin Institute for Law & Liberty, Mr. Vitolo sued in federal district court in Tennessee, which ruled against him, but he sought expedited action before the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Ohio.  Last week, by 2-1, the panel ruled in his favor and held the race-based provisions Congress included in the statute unconstitutional.

This is welcomed news for all Americans, a setback for Congress, which included racial preferences in legislation for decades, and an advisory that President Biden should end his shameful, hateful, and disturbing racially divisive rhetoric. 

For me, it was vindication.  The panel frequently cited my 1995 victory at the Supreme Court of the United States.  At that time, legal commentators predicted the ruling doomed government race-based decision making, which did not occur, but now, once this case or one like it reaches the Supreme Court, that will happen.

Judge Amul Thapar joined by Judge Alan Norris dealt first with jurisdictional issues, specifically the federal government’s attempts to throw Mr. Vitolo’s case out of court.  Governor lawyers argued he might not win a grant; moreover, his case was moot.  The panel rejected both arguments handily.

Judge Thapar explored the federal government’s decades-old presumption that certain racial and ethnic groups are entitled to preferences over fellow Americans. 

He called that “racial gerrymandering,” for example, “individuals who trace their ancestry to Pakistan and India qualify for special treatment.  But those from Afghanistan, Iran, and Iraq do not.  Those from China, Japan, and Hong Kong all qualify.  But those from Tunisia, Libya, and Morocco do not.” 

Judge Thapar: Imagine two childhood friends—one Indian, one Afghan.  Both own restaurants, and both have suffered devastating losses during the pandemic.  If both apply to the Restaurant Revitalization Fund, the Indian applicant will presumptively receive priority consideration over his Afghan friend.  Why?  Because of his ethnic heritage.

Quoting Chief Justice Roberts, he concludes, “It is indeed ‘a sordid business’ to divide ‘us up by race.’”

It not just sordid; it is unconstitutional.  Federal government “policies that classify people by race” have been “presumptively invalid,” wrote Judge Thapar, since the Supreme Court ruled in Adarand Constructors, Inc. v. Peña in 1995 and subject to “strict (usually fatal) scrutiny.” 

To survive scrutiny, the federal government must demonstrate that it seeks to achieve a “compelling government interest” and that it “narrowly tailored” relief to advance that interest.  Asked Judge Thapar, does the federal government have a compelling interest in “presumptively sending men from non-favored racial groups (including whites, some Asians, and most Middle Easterners) to the back of the line[?]  We hold that it does not.”

As for the federal government’s argument that its compelling interest is “remedying past society discrimination against minority business owners,” the panel addressed three requirements: 1) specific episodes of past discrimination; 2) evidence of intentional discrimination; and 3) government involvement in that discrimination. 

The government met none.  Societal discrimination is not proof of discrimination; there was no evidence of past intentional discrimination against the groups granted preferences; and—other than vague congressional testimony—there was no evidence of government involvement in racial discrimination.

Next, the panel addressed narrow tailoring, which requires the federal government to demonstrate “serious, good faith consideration of workable race-neutral alternatives.”  It concluded, in response to the government’s arguments, that “race-neutral alternatives exist,” which Congress failed to adopt; moreover, its use of “racial preferences is both overbroad and underinclusive.  This is also fatal to the policy.”

Further, the panel struck down the statute’s preference for “women-owned restaurants” after federal lawyers failed to provide the “exceedingly persuasive justification” required by the Constitution.

The panel concluded.  “It has been twenty-five years since the Supreme Court struck down the race-conscious policies in Adarand….  As today’s case shows once again, the ‘way to stop discrimination on the basis of race is to stop discriminating on the basis of race’.”  Amen!

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William Perry Pendley: Junk Science From The Government? Wyoming Has Heard It Before

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By William Perry Pendley, columnist
Mr. Pendley, a Wyoming attorney, led the Bureau of Land Management in the Trump administration.

As of last weekend, Wyoming ranked 39th in percentage of population to receive the COVID-19 vaccine developed by President Trump’s Operation Warp Speed.  Everyone has his reasons, but if there is one rationale, it may be that we have been down this road in the past.

When Dr. Anthony S. Fauci and other “experts” appeared on the national scene, it was the first time for most Americans to be ordered what to do, how to behave, and the way to live by government bureaucrats.  

Thus, when Dr. Fauci said, early on, they should not wear masks and then weeks later said they had to wear masks, and even later recommended two or even three masks, if accompanied by goggles or eye shields, it made peoples’ heads spin.  

They all longed for the day when they would be vaccinated and could throw away masks, but Fauci kept it up, saying—even after being vaccinated—they had to wear masks, including when outside exercising—alone!  At some point, many concluded Fauci, et al. were making it all up and stopped listening.

We westerners got inoculated, if you will, to such nonsense from government “scientists” long ago, that is, when federal agencies and radical environmental groups started using the Endangered Species Act (ESA) to kill economic activity.  

Those with long memories recall how the snail darter nearly derailed the Tellico Dam in Tennessee, but Congress stepped in, carved out an exemption, and the project went forward.  Later, plenty of snail darters were found nearby and predicted ecological chaos was avoided.  There were no further exemptions, however, and westerners, as usual, paid the price.

Radical environmental groups, admitting their desire to stop timber harvesting in California, Oregon, and Washington, alleged that logging threatened the northern spotted owl’s survival and sued to stop harvesting.  

I faulted the U.S. Fish & Wildlife Service (FWS) for its failure to use science for its policy recommendations.  The highest-ranking agency official on the west coast responded he was using, not biological science, but political science.  

In the end, the late Jack Ward Thomas—the Dr. Fauci of northern spotted owls—was put in charge.  The question for those seeking to save jobs, local economies, and small towns was:  “How many owls assured the species’ survival?”  Dr. Thomas said there was no “magic number” so he made “moral judgments between the needs of owls and the needs of mankind.”

Long after tens of thousands of jobs were lost, communities all but abandoned, and services like local law enforcement ended throughout the region, the FWS admitted the northern spotted owl was at risk, not because of logging, but because of the barred owl, which preyed on its cousin.  The agency then set about killing the barred owl to save the northern spotted owl.

Likewise, grazing was shut down in Clark County, Nevada to save the desert tortoise, despite that the FWS knew the greatest threat to the desert tortoise was not slow-moving cattle whose use of the land symbiotically served the needs of the tortoise, but instead ravens that were exterminating the tortoise.  The agency had no stomach for killing ravens; therefore, cattle grazing had to go.

Meanwhile, in Wyoming, because of conservation efforts, the grizzly bear population expanded exponentially as did its range.  

Despite that it has a 99 percent likelihood of surviving for at least another 100 years—better odds than a motorist on I-80 in a blizzard between Laramie and Rawlins—radical green groups fight its removal from the ESA list disregarding the harm imposed on stockmen, hunters, and an occasional unfortunate backpacker.

Despite abundant science to the contrary regarding the uniqueness and vulnerability of the so-called Preble’s meadow jumping mouse, which all but shut down the I-25 corridor from Casper to Colorado Springs, the rodent remains on the ESA list.  

Furthermore, in Sublette County, notwithstanding robust conservation efforts and evidence of the greater sage-grouse’s resiliency, experts argued ongoing ranching and oil and gas operations had to stop to protect it.  Lawyering on my part, aided by expert testimony, helped prevent that disastrous outcome.

Knowledgeable observers argue persuasively that the FWS’s greatest deficiency is conflict of interest.  Its work is the product of “species cartels” afflicted with group think, confirmation bias, and a common desire to preserve the prestige, power, and appropriations of the agency that pays or employs them.  

For example, in one sage-grouse monograph, 41 percent of the authors were federal workers and the editor—a federal bureaucrat—authored one-third of the papers.  

Finally, too often the peer-reviewed, published “science” the FWS uses to make decisions has neither data nor computer codes available to the public.  When its data is available publicly but the agency’s results are not reproducible, at least the FWS and activist scientists can maintain the study was “peer reviewed” even though peer reviewers never saw the data either!

Although we pray the COVID-19 pandemic will soon be behind us and we can get back to normal—vaccinated or unvaccinated—Wyoming will continue to suffer at the hands of Dr. Fauci’s ilk in the FWS who try to tell us how to live our lives.

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Opinion: Not The Color Of Our Skin; Congress & Presidents (except Trump) Abdicated, So Only Hope Is SCOTUS

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By William Perry Pendley, columnist
Mr. Pendley, a Wyoming attorney, led the Bureau of Land Management for the Trump administration.

A few years ago in Casper, I sat in the memento-filled office of the late Mick McMurry, Vietnam Veteran, Midas-touch entrepreneur, and magnanimous philanthropist. 

As everyone in the “oil patch” knows, Mick discovered the Jonah Field—one of the largest gas province in the country—near Pinedale when he applied the decades old but not fully in its prime technology—hydraulic fracturing or fracking. 

He took some Bureau of Land Management (BLM) leases that had been worked over without promising results, hired the “best men I could find who knew a lot more about fracking than I did,” and set about—often operating a bulldozer himself—to change the world. 

The rest is history.  In 2019, for the first time since 1957, America became energy independent, which all the smartest people said was “impossible.”

Earlier, however, Mick and his father were in the highway construction business, albeit separately.  There was not a stretch of Wyoming highway that did not bear their imprint.  I asked Mick why he got out of that business; after all, he knew nothing about oil and gas.

“It was because of the issues involved in the case you took to the Supreme Court,” he said.  “The federal government was making it impossible for me to win contracts.”

The case was Adarand Constructors, Inc., which involved a family-owned business operated by Randy Pech out of Colorado Springs, challenging the constitutionality of the U.S. Department of Transportation’s awarding of federal highway contracts based on race. 

What made Mick McMurry an oilman, angered Randy Pech, and took me, first member of my family to finish elementary school, to the Supreme Court three times was long in coming.  Sadly, it is not over yet; in fact, it has gotten worse.

In 1964, Congress enacted the Civil Rights Act, but with a pledge.  The statute that sought to pay up on what Reverend Dr. Martin Luther King, Jr. called the “promissory note” that was the Declaration of Independence would not result in racial quotas. 

Regrettably, thirteen years later, Congress enacted quotas in funding a public works act.  That was challenged, but in 1980, the Court, in a bifurcated opinion, upheld the law due to its limited scope and duration. 

That ruling opened the floodgates and federal, state, and local entities across the land adopted the same race-based quotas.  In 1989, a challenge to one such action by Richmond, Virginia, reach the Court, which ruled the quota unconstitutional.  Unfortunately, in 1990, the Court approved a federal agency using race to award radio broadcasting licenses.

In 1995, Adarand Constructors, Inc. reached the Court where the Department of Justice argued the Constitution’s equal protection guarantee did not apply to Congress. 

By 5-4, with Justice O’Connor writing the opinion, the Court disagreed, overturned its 1980 and 1990 precedents permitting racial discrimination, and declared “strict (often fatal) scrutiny” the standard for reviewing even purportedly benign racial discrimination, including by Congress. 

Justice Scalia wanted to declare what Congress was doing unconstitutional, but O’Connor—having changed the “ground rules”—wanted more fact-finding in the lower courts.

Congress had the opportunity in 1997 and 1998 to codify the Adarand ruling, but by bi-partisan agreement, both sides of the Hill “left it up to the courts.” 

In 2001, Adarand reached the Court its third and final time.  Clinton’s lawyers argued the case was ready for a ruling, but incoming Bush lawyers cleverly maintained it had outlived itself and was moot.  The Court agreed. 

It was the beginning of the end of applying the Court’s brave 1995 ruling in Adarand, although the precedent remains binding on all governments, including Congress.

In 2003, O’Connor demonstrated she had lost her way.  She switched sides at the urging of major corporations, bigwig retired generals, and university poohbahs and held that universities could grant admission based on race for another 25 years! 

Early the next term, over the dissent of Scalia and Chief Justice Rehnquist, the Court declined to hear a challenge by my client to a Denver program just like the Richmond one struck down in 1989.

Bush sought no changes in how race-based programs were enforced or challenged, but Obama went whole hog, most egregiously mandating using race to hire air traffic controllers, which I challenged.

President Trump saw all that differently; in fact, he ordered the settling of the air traffic controller lawsuit, but more importantly, he demanded his Justice Department join with Asian Americans in their challenge to decades of abuse by Harvard University of the Constitution’s equal protection guarantee.

Biden/Harris, of course, abandoned the Harvard case, but that was just the beginning of their government-wide effort—in response to systemic racism, they claim—to make race the determinative factor in every appointment, policy, and decision. 

Even that was not enough for radicals in Congress.  Two U.S. Senators declared they would vote for no more white males until more people of their preferred racial, gender, and sexual orientation groups are nominated for high positions. 

It goes without saying that, like the City of Richmond following the Court’s 1980 ruling, state and local governments, major corporations, and colleges and universities are following suit.  For example, doctors at Harvard, as part of their own mini-reparation effort, now provide health care based on race.

It is not just an east coast phenomenon.  The NBA’s Utah Jazz in Salt Lake City is awarding high school scholarships, not based on need, but on race—with the Governor’s full approval. 

Coca-Cola, whose products are ubiquitous, trained its employees to be “less white” and ordered its executives to work only with outside law firms that guarantee 15 percent of their billed hours are from African American attorneys. 

Meanwhile, United Airlines, Wyoming’s primary air carrier, proudly announced that it will hire pilots, not for their skills at aviating the “Friendly Skies,” but due to their race and gender.

None of this is legal, of course, but with Biden/Harris running things it will only get worse.  That is, unless and until the Supreme Court of the United States puts a stop to it.

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Pendley: You Can Keep Firefighters Out Of Harm’s Way As 80% Of All Wildfires Are Caused By Humans

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By William Perry Pendley*, columnist

It seems strange that, having emerged from a record-setting snowstorm and then a record-setting warm spell and now entering February-like temperatures in what passes for springtime in the Rocky Mountains, we are talking about wildfire. 

We must, however; after all, wildfire has become a near year-round feature of the West.  For example, a fire accidentally set by teenagers threatened homes in Gillette two weeks ago and at the same time three wildfires broke out in South Dakota’s Black Hills. 

Some of the West’s biggest wildfires are caused by lightning, like last year’s Pine Gulch fire north of the Bureau of Land Management’s (BLM’s) Robert F. Burford Headquarters in Grand Junction, which for a time was the largest in the Centennial State’s history. 

Regrettably, a full 80 percent of wildfires are human caused, including 2020’s Cameron Peak, at 208,663 acres, the largest ever in Colorado, and the subsequent Mullen fire that began in Wyoming and swept into Colorado consuming 176,878 acres.

Elsewhere in the West, there were more human-caused blazes on BLM lands in Nevada’s Clark County in 2020 than in the last four years combined!  Glenwood Canyon made national news last summer when Colorado shut down I-70 and all cross-country access through the state as a result of the human-caused Grizzly Creek fire.  Yet another human-caused blaze—the Indian Creek—in eastern Oregon consumed 50,000 acres and cost $3.4 million! 

It is not just that every human-caused fire is costly, dangerous, and inflicts damage that can last for years, it means fewer federal, state, tribal, and local firefighters are available to battle huge, naturally occurring fires.  Worst of all, they simply need not happen.  We westerners must both take care ourselves and urge visitors to do likewise.  It is basic stuff, but obviously, some of us are not paying attention.  

•           Vehicles – Ensure your engine, catalytic converter, and brakes and oil systems are in good working order; failures in these systems may emit sparks or fluids that burn.  Check your tires for undue wear; the metal rim of a blown tire might start a fire.  Ensure metal chains are secure; they will spark if dragged on the highway.  Finally, only pull off the side of the road onto a paved or hardpacked dirt surface, never onto dry weeds or grass.

•           Equipment – Clear a wide area around any welding, cutting, or grinding equipment that could throw a spark and perhaps restrict these activities to cooler morning hours.

•           Campfires – The U.S. Forest Service spent decades telling us how to enjoy campfires safely; follow its “Smokey the Bear” advice and, most importantly, ensure your fire is OUT. 

•           Outdoor burning – Obey restrictions—likely to be put in place this summer; get a local permit, if needed, and follow common sense precautions, such as having a water supply and shovel available.  

•           Fireworks – Recognize that fireworks, which are illegal to use on all public lands, cause hundreds of wildfires every year.  Use them safely elsewhere. 

•           Shooting – The BLM in the Trump administration supported the exercise of Second Amendment rights on land it manages, but we advised:  Place targets on dirt or gravel; shoot in areas free of dry vegetation; avoid shooting on hot, windy days; and never use steel core and solid copper ammunition or exploding targets.  

I was proud to lead the men and women of the BLM’s firefighting force.  Last year, they courageously fought, not just one of the most challenging wildfire years in the West’s history, but also the COVID-19 pandemic.  Fortunately, as a result of new protocols, they were able to do both without the loss of life to the virus. 

Sadly, we lost some firefighters while saving lives, property, and valuable natural resources.  After all, fighting wildfires is dangerous work.  Little wonder, across the West, on churches, in front yards, and along highways and roads, signs read: “Thank you firefighters,” “God bless our firefighters, and “Pray for our firefighters.”   

Given all that these brave men and women do for us, it is a small thing that we do something for them.  Ensuring our careless, heedless, or inattentive actions will not send them into harm’s way.    

Mr. Pendley, a Wyoming native, was deputy director for policy and programs of the Bureau of Land Management in the Trump administration. Follow him @Sagebrush_Rebel

Author, Sagebrush Rebel:  Reagan’s Battle With Environmental Extremists and Why It Matters Today (Regnery, 2013)

“Sagebrush Rebel is one of the most important, insightful, and inspirational books about Ronald Reagan’s domestic policies since An American Life by President Reagan himself.” — Edwin Meese, III, Reagan Attorney General

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William Perry Pendley: BLM Law Enforcement Officers Are Part of West’s ‘Thin Blue Line’

in William Perry Pendley/Column
9453

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By William Perry Pendley, guest columnist
Mr. Pendley, a Wyoming native, was Deputy Director, Policy and Programs, of the Bureau of Land Management during the Trump administration.

With rioting continuing in cities across the country, dangerous criminals and coyotes flooding across our southern border, and the Biden administration and Democrats questioning the loyalty of those who make up the thin blue line between anarchy and a civil society, I think daily of the law enforcement officers (LEOs) I led at the Bureau of Land Management (BLM).

Within days of arriving in July of 2019, I got an introduction to their often-dangerous jobs as I watched Secretary of the Interior David Bernhardt honor two Rangers for their brave and by-the-numbers response to a deadly encounter on a deserted mesa in western Colorado. Later, I saw their body-cam footage and marveled at their situational awareness, instantaneous response, and consummate professionalism.  

In my travels to BLM state, district, and field offices across the West, I got to know many of the BLM’s 212 Law Enforcement Rangers and 76 Special Agents, the men and women who protect visitors to, employees upon, and the valuable resources of the 245 million acres of surface estate for which they are responsible—one million acres each! 

Thus, they must keep in touch, work closely, and coordinate with fellow federal, state, and local law enforcement officers.  I watched as they joined state and local law enforcement in arresting dangerous suspects in Cortez, Colorado; responded to a request from a rural sheriff in Arizona to rescue a family stuck in freezing temperatures on a road to nowhere; and, teamed up in an all-hands-on-deck effort to locate a missing American Indian teenager in rural Montana. 

In early 2020, I addressed the Western States Sheriffs Association in Reno and closeted for hours with BLM Senior Agents in Charge to learn how to improve the professionalism, morale, and mutual trust and respect of the BLM law enforcement community.  I was eager for more one-on-one meetings with individual LEOs, but then COVID-19 hit our shores.

After the tragic death of George Floyd and the peaceful protests and then anarchist riots that followed, I knew I had to speak with them and answer their questions.  We did so in one of the BLM’s first “Town Hall” Zoom Meetings.  In part, I said:

We are experiencing a troubling time for our country and for our republican form of government.  The ability to freely and peacefully express our views is fundamental in our society, and our law enforcement officers play a huge role in protecting this right.  While many seek to exercise their rights peacefully, others are turning to unlawful activity.

We worry today, not just about the future of our country, which, over 200 years ago, replaced rule by men and tyrants with liberty and justice for all. 

We worry too about our families, friends, and loved ones, in cities large and small across this great country.  And, let us be candid, in your private moments, despite your training, wealth of muscle memory, and justified self-confidence, you may have your own worries as you watch the news every night.

Finally, I sought to put their minds at ease.  “Rest assured; I have your back.”

I was gratified by the responses I received.  One wrote, “‘I have your back.’  We have never heard that from a deputy director.”

Afterward, BLM’s LEOs distinguished themselves:  guarding COVID-19 quarantine sites, protecting monuments during the Fourth of July in Washington, D.C., and responding to calls for assistance from sheriffs across the West. 

Meanwhile, they safeguarded and rescued visitors, spotted and nabbed wrongdoers, and helped bring criminals to justice, all while being good neighbors to westerners and visitors.

As fiscal year 2020 drew to a close, I bulldogged a contract across the finish line to provide body-cameras for all BLM LEOs and a state-of-the-art system to store and access the data.  As the year ended, I had to stand up for the LEOs on one final, major, decades-old issue.

In 2002, the Inspector General (IG) for the Department of the Interior made a series of Department-wide recommendations regarding law enforcement, which the Secretary ordered adopted. 

Over the years, most were implemented.  One remained undone however:  placing all BLM LEOs in an exclusively law enforcement chain of command. 

This was not just the IG’s recommendation, but also the urging of law enforcement professionals for decades.  In fact, in 2020, the Department’s top LEO urged its application. 

BLM leadership stonewalled, adhering to a haphazard system where LEOs reported to non-LEO superiors with expertise in other fields—range management or petroleum engineering, e.g.—with only 24-hours of law enforcement study. 

Obviously, those managers lack a comprehensive understanding of law enforcement issues—constitutional, legal, and tactical.

Thus, in our final days, Bernhardt ordered and I implemented the IG’s recommendation.  Of course, leadership heads exploded; they were furious with their loss of authority, not to mention FTEs and budgets. 

Nonetheless, it was best for the LEOs, best for the BLM, and best for westerners who want those who make life and death decisions to be the best trained, best equipped, and reporting via a professional, expert, and knowledgeable chain of command.

That we had done the right thing became clear in the days before I left.  Four sheriffs from Utah drove to Grand Junction to thank me for ensuring their confidence in entering into law enforcement agreements with the BLM.  They said they spoke for sheriffs across the West.

Meanwhile, given the attacks on law enforcement by the media, the Biden administration, and Democrat politicians, I ask that, next time you see a Ranger, say “Howdy and thanks!”

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Wyoming Native in Charge of BLM: Can He Transfer Federal Lands to States?

in News/wildlife/Agriculture
Wyoming public lands transfer
2084

By Laura Hancock, Cowboy State Daily

The transfer of federal lands to Western states, once championed by President Donald Trump’s Bureau of Land Management acting director, would be a challenge as tall as Gannett Peak, say natural resource experts who have looked at the issue. 

Cheyenne native William Perry Pendley, who earned his law degree from the University of Wyoming and once worked for U.S. Sen. Cliff Hansen, has represented ranchers and others in lawsuits against the federal government’s land and water policies. He’s argued that the federal government needs to transfer its lands to the states — a position he’s recently walked back as he serves the Trump as the helm of the BLM. 

Regardless of where he stands, an act of Congress or a lawsuit would precipitate a land transfer, experts say. 

Act of Congress

Drumming up support in Congress for a land transfer law would be difficult, said Shannon Anderson, an attorney for the Powder River Basin Resource Council, a Wyoming group that opposes transfer.

Roughly half the revenue from federal mineral production goes to the U.S. Treasury. Saying goodbye to the revenue would be a tough sell for many members of Congress. 

“Look at the Midwest – Michigan and Minnesota,” she said. “They say to come to Wyoming to go hunting…. There would be constituent backlash to that kind of idea. People see these lands as a shared national treasure.”

Anderson believes the end goal for the land transfer movement is selling the lands the private landowners, but people who support the movement dispute that conclusion.

Derek Monson, vice president of policy at the Utah-based Sutherland Institute, a conservative think tank, doesn’t agree that members of Congress from outside the West want the federal government to hold onto the public lands. They’d be interested in disposing the lands if they studied the cost of fighting wildfires and other projects, he said. 

The group considers the transfer of public lands just one option to solving perceived problems with public land management.

However, during the first two years of the Trump administration, both the U.S. House and Senate were under Republican control, and no privatization bill passed, he noted. 

Lawsuits

If Congress fails to act, states or individuals could always try litigation. The problem with a state-initiated lawsuit – at least with Trump as president – is the risk of alienating the administration, Monson said. 

“If a court rules it has to be done, what does it mean?” Monson asked. “Does the federal government dump it on the states, all at once?”

Utah has spent over $1 million in legal analysis and public relations associated with a potential lawsuit, but the state’s attorney general hasn’t yet filed a complaint. 

State Rep. David Miller, R-Riverton, a proponent of land transfer, is watching Wyoming’s westerly neighbor. 

“Utah is the lead on this,” he said. “If they get traction, maybe other states will join.”

Has the movement died down?

During the President Barack Obama years, the Wyoming Legislature discussed federal land transfer, and even paid a consulting company $75,000 to look at the issue.

Since then, there’s been less talk. Anderson believes it’s because environmental regulations have relaxed.

“They have the Trump administration in their corner, rewriting the rules,” she said. 

Miller, however, said that proponents of land transfer lost the public relations battle in Wyoming, since sportsmen groups and their mostly Republican members were among the most vocal against it. 

“The outdoor people got into the hands of keeping the lands in the swamp,” Miller said. “It makes no sense to me but the PR people did a good job.”

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