as at no other time in decades, on themeaning of the Commerce Clause (Art. I,§ 8, cl. 3) and whether Congress may useits power “to regulate commerce . . .among the several states” to impose an“individual mandate” on Americans tobuy health insurance or pay a fine.

At the time of its passage, then-Speaker Nancy Pelosi (D-8th CA) thoughtthe question laughable (“Are you seri-ous?”), but Speaker John Boehner (R-8thOH) disagreed (“ObamaCare is [an]unprecedented, unconstitutional powergrab by the federal government.”). Thefinal decision rests, of course, with theSupreme Court of the United States.

Noting that, for the first time inAmerican history, Congress has orderedevery American to make a specific pur-chase, that is, health insurance, simplybecause Congress says it is in the nationalinterest, MSLF argues that, if theCommerce Clause permits Congress toissue this individual mandate, there are nolimits to what Congress may do.

Page One

Spring 2011The 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 303-292-1980www.mountainstateslegal.org

TheLitigatorunconstitutional and that the landmark

case makes its way to the SupremeCourt of the United States. MSLFfiled an amicus curiae brief withthe U.S. Court of Appeals for the

Sixth Circuit, which encom-passes Michigan, Ohio,Kentucky, and Tennessee, argu-

ing that an October 2010 ruling bythe U.S. District Court for theEastern District of Michigan thatnot buying health insurance is an

“economic decision,” whichCongress may regulate, is in

error. In so doing, MSLF supportsa challenge to ObamaCare filed by

the Thomas More Law Centerand others. MSLF also filed afriend of the court brief with

the U.S. Court of Appeals for the FourthCircuit, which includes Maryland, NorthCarolina, South Carolina, Virginia, andWest Virginia, arguing that a November2010 ruling by the U.S. District Court forthe Western District of Virginia, in a law-suit filed by Liberty University, thatObamaCare is constitutional, is in error.

In addition, MSLF will file a brief withthe U.S. Court of Appeals for the EleventhCircuit, which includes Alabama, Florida,and Georgia, to support the ruling of theFlorida federal district court. The constitu-tionality of ObamaCare will be decided,ultimately, by the Supreme Court. GivenMSLF’s victories there and the regard inwhich MSLF is held by the Court and liti-gants before the Court, MSLF is dutybound to file when a petition for certiorariis filed and after the Court agrees to hearthe case and accepts briefs on the merits.

Ever since ObamaCare became lawon March 23, 2010—and the filing of law-suits that very day to challenge its consti-tutionality—the public has been focused,

MSLF’s Win Cited; MSLF Briefs Appeals Courts

OBAMACARE RULED UNCONSTITUTIONALIn a powerful ruling, the U.S. District

Court for the Northern District of Florida,Pensacola Division, declared the individ-ual mandate set forth in the “PatientProtection and Affordable Care Act,”often called ObamaCare, unconstitu-tional. The ruling follows a similarruling by the U.S. District Courtfor the Northern District ofVirginia; however, unlike theVirginia federal district court,the Florida federal district courtheld that the entire statutemust be stricken because the lawdoes not contain a “severabilityclause,” which allows other parts toremain in effect when anunconstitutional provisionis struck down.

The Florida federal district court rul-ing came in a case in which twenty-six(26) States, along with a handful of otherplaintiffs, challenged the constitutionalityof the law. No friend of the court briefswere accepted by the Florida federal dis-trict court; therefore, MSLF did not havethe opportunity to provide the court withthe benefit of its legal scholarship demon-strating that America’s embrace of limitedgovernment of specific enumerated pow-ers, as set forth in the Commerce Clause,began in the pre-Revolutionary Days,continued through the Declaration ofIndependence, the Constitution, and theBill of Rights, and has been upheld by thefederal judiciary, including the U.S.Supreme Court. Nevertheless, MSLF wasall but present in the courtroom given thatthe Florida federal district court, as thebasis for one of its holdings, relied on anMSLF federal court of appeals’ victory.

Meanwhile, MSLF made appearancesbefore two U.S. Courts of Appeals in itseffort to ensure rulings that ObamaCare is

©2010 by National Review, Inc. Reprinted by permission.

Page TwoTheLitigator

PENDLEY’S VIEWLong before the Supreme Court of

the United States rules on the constitu-tionality of ObamaCare, it may have anopportunity to opine on a federal lawthat has caused property owners toquestion the scope of the CommerceClause for decades: the EndangeredSpecies Act (ESA). On February 15,2010, with MSLF’s brief before it, the U.S.Court of Appeals for the Ninth Circuitheard oral arguments on whetherCongress has the power to authorize afederal agency—the U.S. Fish andWildlife Service (FWS)—to regulate athree-inch fish, the delta smelt, to thedetriment of the economic well-beingand property rights of tens of thousandsof central California residents.

In March 1993, the FWS, saying thedelta smelt “is the only smelt endemicto California” and “has no commercialvalue,” put it on the ESA list. InDecember 2008, the FWS issued a rul-ing that the Central Valley Project jeop-ardizes the smelt’s existence andrestricted water flows into the SanJoaquin Valley. The Wall Street Journalreported, “tens of billions of gallons ofwater” are sent into the ocean, “leavinghundreds of thousands of acres ofarable land fallow or scorched.”

Represented by Pacific LegalFoundation, water users sued allegingthat the Commerce Clause does notprovide Congress authority to regulatethe delta smelt. In October 2009, theDistrict Court for the Eastern District ofCalifornia upheld the constitutionalityof the ESA as to the delta smelt. Thewater users appealed.

Because rulings by the NinthCircuit are reviewed and reversed fre-quently by the Supreme Court, thethree-judge panel’s ruling on the deltasmelt is unlikely to end the case. Toensure that the Commerce Clausemeans what the Founders intended,the Supreme Court should hear thecase and hold that Congress lacksauthority to regulate intrastate species.

WEB PAGE POLLVisitors to MSLF’s web site at www.mountainstateslegal.org responded to the

following question: “A federal judge agreed with the Obama Administration thatCongress may pass ObamaCare with its individual mandates under the Consti-tution. Is that correct?” One hundred percent (100%) said, “No: If the CommerceClause lets Congress mandate that citizens make specific purchases, it has no mean-ing.” Zero percent (0%) said, “Yes: The decision not to purchase health care insur-ance is an ‘economic decision’ Congress may regulate.”

Vote on the new question at MSLF’s web site today!Remember, the best way to keep abreast of MSLF’s precedent-setting, national-

ly-significant litigation is to check MSLF’s highly acclaimed web site. MSLF’s website is updated at least every week and often daily. In particular, check for updateson MSLF’s “Legal Cases” and “Press Releases.”

FCC REVOKES UNCONSTITUTIONAL RULEIn 1995, when MSLF won its land-

mark ruling before the Supreme Courtof the United Statesin AdarandConstructors, Inc. v.Peña—holding thatany citizen deniedequal treatment as aresult of race or eth-nicity, by any unit ofgovernment, maydemand that federalcourts determinewhether the government’s action sur-vives “strict [often fatal] scrutiny”—theCourt reversed a ruling that it hadissued just five years earlier. In MetroBroadcasting, Inc. v. Federal Commun-ications Commission, the Court upheldthe authority of the FCC to awardbroadcast licenses on the basis of racein order to achieve program diversity.In Adarand, the Supreme Court over-turned that ruling and thus withdrewany authority for the FCC, or any otherfederal agency, to use race in such anodius manner.

Therefore, it came as a shock tolegal scholars and to MSLF when, in

August 2008, theFCC, in approvingthe merger of XMSatellite RadioHoldings, Inc. andSirius SatelliteRadio, Inc., orderedthe companies to setaside a certain num-ber of stations to beawarded to minori-

ty businesses. Although the FCC mayhave arguably had such authorityunder Metro Broadcasting, with the rul-ing in Adarand, Metro Broadcasting wasgone and so too was the FCC’s authori-ty to award licenses or to mandatetheir award on the basis of race. As aresult, MSLF wrote to the FCC anddemanded that it withdraw its patentlyunconstitutional order.

In October 2010, the FCC did justthat, citing to MSLF’s victory inAdarand in its documentation for thedecision. It is better late than never!

DOUBLE YOUR MSLF GIFT! TELL THE BOSSDid you know that you might be

able to double your gift for free?Thousands of companies match theiremployee’s charitable contributions.Matching gifts play a key role in help-ing MSLF fight its court battles. Pleaseask if your employer has a matching

gift program. Contact your humanresources or personnel department tosee if your company will match yourgift to MSLF. Then, each time you mailyour gift, please include a matchinggift form from your employer. MSLFwill do the rest!

MSLF PRESSES ITS FIGHT FOR RIGHT TO KEEP AND BEAR ARMSGiven its presence in the American

West and its defense of the right to usedeadly force against grizzly bears, it is nosurprise that MSLF was at the U.S.Supreme Court in 2008 when the Courtheard District of Columbiav. Heller or that MSLF’sbrief was the basis for ajustice’s questioning ofWashington’s attorney.Nor is it a surprise thatMSLF was before theCourt in 2010, when thebattle shifted to the States after anti-gunzealots said the Second Amendmentapplied only to the federal government.In McDonald v. Chicago, the SupremeCourt rejected that argument and, in hisopinion, Justice Alito cited MSLF’s brief tosupport his ruling.

MSLF knows the battle for gun rightsis not over; therefore, all across the coun-try, MSLF is fighting those who refuse to

admit that the Second Amendment, Heller,and McDonald are the law of the land.

In Illinois, MSLF represents an Ohiowoman who is barred by state law frompurchasing a firearm or ammunition

while she visits friends inthe Land of Lincoln.Only Illinois residentswho possess a validIllinois driver’s licensemay do so assert statebureaucrats. The attemptby state lawyers to dis-

miss the case was rejected.In Colorado, MSLF represents a cou-

ple that does not have home mail deliv-ery; thus, they must drive to the U.S.Postal Service facility. But when theyarrive, they may not drive into the park-ing lot if they have a firearm in their car.Because the husband and wife have con-cealed carry permits and because they livein a remote, rural area, they have firearms

in their car. The attempt by federallawyers to dismiss the case was rejected.

In Nevada, MSLF represents anIdaho man who travels to Nevada torecreate in a state park there. Despite theisolation and his need to protect himselffrom criminals and animals, he may nothave a functional firearm, not even forself-defense. After MSLF filed its lawsuit,Nevada conceded defeat and amendedits regulations. VICTORY!

In Colorado, MSLF fights for therights of those with valid concealed carrypermits to possess firearms when on theUniversity of Colorado (CU) campuses inBoulder, Denver, and Colorado Springs.State law provides that permits are validthroughout Colorado and may not bebarred by local governments like CU.MSLF’s victory in the case is now beforethe Colorado Supreme Court.

MSLF believes the right to “keep andbears arms” is a fundamental liberty!

Page Three TheLitigator

In an anxiously awaited opinion, athree-judge panel of the U.S. Court ofAppeals for the Ninth Circuit declared thatS.B. 1070, Arizona’s attempt to address theimpact of illegal immigration on its citi-zens, is unconstitutional. The panel’s 2-1ruling upholds a July 2010 decision by anArizona federal district court thatportions of the Arizona law areunconstitutional and may notbe enforced. In so ruling, thepanel rejected the argumentsmade in MSLF’s friend of thecourt brief and insteadagreed with federal lawyersthat the Arizona law conflictswith federal law and therefore ispreempted.

Judge Carlos T. Bea, however, dis-sented, declaring that the majority opin-ion ignored the mandate of Congress,deferred impermissibly to federal agen-cies and foreign countries, and, in adopt-ing a position rejected by federal lawyers,stripped Arizona law enforcement of itsability to protect its citizens. Judge Bea’spowerful dissent will provide a strongbasis for the planned appeal, either direct-

ly to the Supreme Court of the UnitedStates or via an en banc panel of the NinthCircuit.

Signed into law in April 2010 byArizona Governor Janice K. Brewer, S.B.1070 seeks, through “cooperative enforce-ment of federal immigration laws” “to

make attrition throughenforcement the public policyof all state and local govern-ment agencies in Arizona” and“to discourage and deter theunlawful entry and presence ofaliens and economic activity bypersons unlawfully present inthe United States.” Shortly afterits enactment, seven lawsuitswere filed by various groups,including the ACLU, the

NAACP, and the Mexican AmericanLegal Defense and Educational Fund(MALDEF), challenging its constitutional-ity. Then, in July 2010, Attorney GeneralEric Holder sued Arizona to obtain a rul-ing that S.B. 1070 is unconstitutionalbecause it is preempted by federal law.

After the district ruled in favor of theObama Administration, Governor Brewer

appealed to the Ninth Circuit. MSLF, atthe request of Governor Brewer, filed ahard-hitting amicus curiae brief in supportof S.B. 1070 at the Ninth Circuit. MSLFtook aim at the Obama Administration’sargument at the district court that, indeciding whether the Arizona law violatesthe Supremacy Clause—which requirespreemption of a state law that conflictswith federal law—the question is not doesArizona’s law conflict with federal law,but is it consistent with White House poli-cy, including Obama’s “foreign relations []and humanitarian concerns….”

NINTH CIRCUIT: ARIZONA’S S.B. 1070 “UNCONSTITUTIONAL”

KEEP READING!The Litigator, MSLF’s quarterly

newsletter, is the indispensable toolfor staying informed regarding thelatest in MSLF’s precedent-setting,nationally-significant, public-interestlitigation. The Litigator is mailed onthe first of February, May, August,and November. Ensure that youkeep receiving The Litigator by contributing $25 annually.

Page FourTheLitigator

HELP MSLF FIGHT FOR FREEDOM: JOIN THE LEGACY SOCIETYName ___________________________________________________________________________________________________________

Address _________________________________________________________________________________________________________

City_______________________________________State __________________________Zip ___________________________________

Home Phone ________________________Cell Phone___________________________E-Mail ________________________________

oSend me FREE information on Planned Giving.

oCall me! I have planned giving questions.

oI have added MSLF to my estate plans. Put my name on the plaque.

oSend me the MSLF E–Newsletter.

Mail to: MSLF, 2596 SOUTH LEWIS WAY, LAKEWOOD, CO 80227

!

IRA CHARITABLE ROLLOVER IS NOW LAWGreat news: on December 17, 2010, the IRA Charitable Rollover became the law of

the land again! If you are 70 1/2 years or older, you may give up to $100,000 from yourtraditional or Roth IRA directly to MSLF during 2011!

If you instruct your IRA custodian to make a direct gift to MSLF, your gift will: (a)support MSLF’s courageous courtroom battles for constitutional liberties and the ruleof law; (b) count toward your mandatory IRA withdrawal; and, (c) not be part of yourfederal taxable income for 2011.

You should consult your personal financial advisor to get more specifics.To make a gift from your IRA: (1) Contact your IRA custodian; it may take up to 2

or 3 weeks for your custodian to make a distribution; and (2) Tell your IRA custodianto make a direct gift to MSLF (tax identification number 84-0736725).

Please call MSLF at (303) 292-2021 to tell us your IRA contribution is on its way.Thank you!

Suggest this bequest language to your attorney:

“I [name], of [city, state, ZIP] give, devise and bequeath to Mountain StatesLegal Foundation (MSLF), (tax identification number 84-0736725) 2596 SouthLewis Way, Lakewood, Colorado 80227, [written dollar amount or percentage ofthe estate or description of the property] to continue its mission to protect andpreserve individual liberty, the right to own and use property, limited and ethicalgovernment, and the free enterprise system.”

When you add MSLF to your will, be sure to tell us! We want to thank you byadding your name to MSLF’s Legacy Society wall plaque.

ACT NOW: REMEMBER MSLF IN YOUR WILL

More than 60 percent of adults livingin households with children do NOT havewills. You need one if:

• You are married;• You have minor children or ailing par-

ents;• Your entire estate is valued at more

than $50,000;• You own real estate:• You own a business; or• You support MSLF!

You need to revise your will if therehave been changes in any of the following:

• Marital status;• Desired executor or guardian;• Finances;• Beneficiaries;• Place of residence;• Tax laws;• Children’s financial needs; or• Degree of support for MSLF!

NEED TO DRAFT ORREVISE YOUR WILL?

A great gift to MSLF that does notoften come to mind is the contribution ofa donor’s personal residence or farmwhile retaining a right to live on the prop-erty for the donor’s lifetime; that is, a“retained life estate.”

The donor receives an instant incometax deduction for the value of the remain-der interest in the real property that wascontributed to MSLF; however, the donorcontinues to be responsible for routineexpenses regarding the property.

GIVING: LIFE ESTATE

The Wall Street Journal reports that all Series E and Series H bonds, as well assome Series EE and Series HH bonds, have stopped earning interest. You may usethese bonds to fund a Charitable Gift Annuity (CGA), which will yield an incomefor your life.

Call 303-292-2021 and ask for William Perry Pendley.Income tax regulations and estate tax laws are complex and vary state to state.

PLEASE consult a tax advisor before making any decisions.

NON-EARNING ASSETS? CONSIDER A CGA

Page FiveTheLitigator

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

MSLF’s sole source of support is the tax-deductible contributions of thosewho support its aggressive litigation program.

MSLF is a nonprofit, public-interest I.R.C. 501(c)(3) corporation, which makesthe 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 thefree enterprise system.

MSLF’s commitment to the Constitution ensures that America remains a nationof 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 hirelegal 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 ofone’s income.

Gift giving decreases taxes while advancing charitable goals.

At a time when many mechanisms for legally lowering taxeshave been eliminated, the opportunities for reducing taxes byplanned charitable giving have been increased!

Income Tax – Each year a person may deduct as much as 50percent of his or her adjusted gross income (AGI) for gifts ofcash to a qualified charity; that limit is only 30 percent for giftsof appreciated property.Estate Tax – A person who died in 2009 is entitled to an exclu-sion of up to $1,000,000; however, estates in excess of thatamount may deduct charitable gifts, by will or trust. Becausefederal estate taxes over $1,000,000 range from 37 percent to 50percent, for every charitable gift of $1,000, the estate saves upto $500 in taxes. Please consult your tax adviser.

Contributions of stock can be made electronically to MSLF's brokerage account DTC 0164. When transferring stock, indicateacct. #7080-3528, Charles Schwab & Co., 518 17th St., Suite 100;Denver, CO 80202. (Derek Tuz 303-260-5916; Fax: 303-260-5911).Please notify MSLF BEFORE making the transfer; there is noway to identify a stock donor without prior notification.

Problemk

SolutionkReasonk

The Meansk

StockkTransfer

Information

MSLF CANNOT REST;ITS ROLE ESSENTIALTO REMAINING FREE

In 2011, MSLF will have been going to court for 34 years, fighting to compelcompliance with the commands of theConstitution and federal law to ensurethat America remains a nation of laws.At no time during these three decadeshas the need for MSLF to go to court onbehalf of those who could not affordlegal representation been lessened. Infact, as the federal bureaucracy hasgrown and as federal laws havebecome more far-reaching and intru-sive, MSLF’s caseload has increaseddramatically. That is obvious from areview of the scores of MSLF cases.

Your Support Is VitalIf there is one lesson MSLF has

learned over the past 34 years, it is that,regardless of which party occupies theWhite House or controls Congress, thethreat to liberty remains and MSLF mustbe ready, willing, and able to go to courtto defend freedom. As Thomas Jeffersononce said, “Eternal vigilance is the priceof liberty.” One of the prices that mustbe paid for MSLF to remain vigilant isthe price that tens of thousands ofAmericans pay annually by makingtheir tax-deductible contributions toMSLF and its litigation.

The support of MSLF by tens ofthousands of Americans committed tofreedom could not be more important.Your support will ensure that MSLFremains IN THE COURTS FOR GOOD!

Yes! I want to help MSLF in its brave fight to ensure the guarantees of theU.S. Constitution and to preserve the rule of law throughout the land!

o Enclosed is a tax-deductible contribution of $25. Please keep sending me The Litigator!

o Enclosed is a tax-deductible contribution of $ _______to help MSLF in its courtroom battles.

o Enclosed is a tax-deductible contribution of $_______ for MSLF’s Endowment Fund.

o PLEASE send me information on planned giving.

Name ____________________________________________________________________________

Street ____________________________________________________________________________

City ___________________________State ________________________Zip _________________

Day Phone ( ______) ________________E-mail Address _________________________________

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!

Page SixTheLitigator

In an appearance before the U.S.Court of Appeals for the Tenth Circuit inDenver, MSLF, on behalf of FremontCounty, Wyoming and its commission-ers, challenged a ruling by a Wyomingfederal district court that FremontCounty must adopt a redistricting plandrafted by the American Civil LibertiesUnion (ACLU) instead of one developedby elected officials

In April 2010, in a 102-page opinion,the district court ruled that the manner

in which FremontCounty

elected itscommis-sionerspursuant

to state law violated thefederal Voting Rights

Act (VRA). Inresponse, FremontCounty submitteda redistricting plan

to comply with fed-eral law; however, following

briefing and oral arguments in July 2010,the district court, in August 2010, man-dated use of a plan created by theACLU.

Fremont County, whose populationconsists of 75 percent non-HispanicWhites and 20 percent AmericanIndians, elects its commissioners at largein partisan races pursuant to state law.Historically, all five commissioners wereRepublicans given that 60 percent of reg-istered voters are Republicans; however,in 2006, an American Indian woman, aDemocrat, was elected commissioner.

In October 2005, the ACLU filed itslawsuit on behalf of five EasternShoshone and Northern Arapahoe tribalmembers, demanding that the court create single-member commissioner districts and that at least one district con-tain an effective voting majority ofAmerican Indian voters, thus ensuringthe perpetual election of an AmericanIndian to the Fremont County Board ofCommissioners. After a long period ofdiscovery, a lengthy trial was held inFebruary 2007. All briefing in the casewas complete in May 2007.

MSLF BATTLES ACLU

In a case likely destined for the U.S.Supreme Court, MSLF urged the U.S.Court of Appeals for the Fifth Circuit tohear and reverse a ruling by a three-judgepanel upholding the right of theUniversity of Texas at Austin todeny admission to two Texascoeds because of their race. Inan amicus curiae brief filed insupport of the coeds whoasked the Fifth Circuit to rehear the caseen banc, MSLF argued that the panelfailed to use “strict scrutiny” as theSupreme Court requires, but insteaddeferred to the university by the panel’suse of a “serious good faith test.”

On January 18, 2011, the panel upheldan earlier ruling by a Texas federal districtcourt that the University of Texas coulduse race to admit students. Both the dis-trict court and the three-judge panel reliedon a controversial 2003 ruling by the U.S.Supreme Court; however, Judge Emilio M.Garza, in his concurring opinion, argued

that the 2003 ruling was flawed andshould be abandoned.

Abigail Noel Fisher of Sugar Land,who graduated in the top 12 percent ofher class, and Rachel Multer Michalewicz

of Buda, who graduated in thetop 11 percent of her class,

applied for but were deniedadmission. In April 2008, theysued the University and its

officials in the U.S. District Court for theWestern District of Texas in Austin,alleging that they were denied the

right to compete for admission on anequal footing with minority students inviolation of the U.S. Constitution’s equalprotection guarantee. In August 2009, thedistrict court ruled in favor of theUniversity of Texas based upon theSupreme Court’s 2003 opinion in Grutter v.Bollinger, which held that racial diversity isa compelling interest that allows theUniversity of Michigan School of Law toadmit students on the basis of race.

APPEALS COURT WRONG ON USE OF RACE

WYOMING SEEKS END TO LAND LOCKUPThe State of Wyoming and two

Wyoming associations sought to dismissthe Wyoming portions of a lawsuit by anenvironmentalgroup to lock upmore than 25 mil-lion acres of fed-eral land in sixwestern States.Wyoming, alongwith theWyoming StockGrowers Association and the PetroleumAssociation of Wyoming, filed a motionto dismiss the Wyoming portion of thecase or to set it aside pending new actionby the Bureau of Land Management(BLM). The Western Watersheds Project,in a lawsuit filed in Idaho federal districtcourt, argues that 18 Resource Manage-ment Plans (RMPs) prepared by theBLM, as they relate to the greater sage-grouse, are procedurally defective, mustbe redone, and may not serve as the basisfor uses of the federal land involved.Four of those RMPs are in Wyoming andare being amended by the BLM. The

greater sage-grouse, the largest grousespecies in North America, is found in 12States and 3 Canadian provinces; seven

times since 1999, environmentalgroups have tried to put it on theEndangered Species Act list.

Since 2006, the BLM hasissued 18 RMPs, as to more than25 million acres of purportedgreater sage-grouse habitat inCalifornia, Idaho, Montana,Nevada, Utah, and Wyoming,

which set out the permissible uses of thelands and outline the conditions underwhich each use will be allowed. EachRMP permits, under certain conditionsand with various limitations, extractiveuses such as oil and gas development andlivestock grazing.

In December 2008, the WesternWatersheds Project challenged the 18RMPs alleging that the BLM had failed toprotect various sage-grouse populations.In May 2009, the federal district courtgranted the motion to intervene of theWyoming Petroleum Association andWyoming Stock Growers Association.

Page SevenTheLitigator

“I will pray for all of you.”Mark VorceMelbourne, FL

“Keep up the good fight [in defendingArizona].”Robert R. SmutneyLibertyville, IL

“Good on you, as they say in Australia.”Violet HannaStudio City, CA

“Thank you []for daring to write thetruth….”Martha R. LichGypsum, CO

“MSLF is essential to remaining free.”Ms. Alberta KanyaFlushing, NY

“Your letters bring results.”Robert S. RogersSeattle, WA

NOTABLE

QUOTES

“I am glad to know [MSLF is] workingso hard and diligently to preserve the ruleof [] law and our freedoms….”Richard F. ZehrungHolbrook, AZ

“We who support you well know [] thefantastic job you do.”Dale BungeeDearborn, MI

“I really do appreciate your GREATefforts.”Richard J. Hogan, M.D.Sturgeon Lake, MN

“Your work is essential and very muchappreciated.”Mike & Betty MorganBurns, OR

“Thank you so much for what you are,have been, and plan to be.”Margaret E. MerrittPinon, NM

“Thanks so much for all you do for ourcountry. I admire your dedication!”Patricia J. BeanBellbrook, OH

“My admiration for your never-say-dieattitude. Keep Fighting!”Len HoltzFeasterville Trevose, PA

“May you stay strong, resolute, andcontinue your so able work.”Thelma LehmanLittle Rock, AR

“Thank you for your diligence andhard work and successes….”John M. LucasVienna, VA

“Keep up the fight!”Frank Haughton, Jr.Billings, MT

“Keep up the good fight!”Bill HeiseMinden, NV

“We so appreciate the valuable servicethat you are performing.”Richard EkstrumKimball, SD

“Appreciate your courage to fight thefight! The Constitution must be protected!”Robert S. CafarelliGreenville, TN

“Please continue your good works toprotect the private rights to property and tochampion the causes of private enterprise,individual and economic freedoms.”C. Richard TurnbowDallas, Texas

n MSLF’s amicus curiae brief was beforethe U.S. Supreme Court when it heardoral arguments on whether Statescould file common law nuisance law-suits claiming that they were injuredby climate change or greenhousegases (GHG); MSLF argues the Stateslack the constitutional right to file thelawsuits (“standing”).

n MSLF voluntarily dismissed (“withoutprejudice”) its lawsuit challenging criti-cal habitat designation in Colorado forthe Prebles Meadow Jumping Mouse(PMJM), which it may refile if the des-ignation harms any landowner inColorado; meanwhile, MSLF continuesits fight against the attempt by environ-mental groups to overturn the de-list-ing of the PMJM in Wyoming.

n An Alaska mining family, whose valu-able claims were invalidated by theBureau of Land Management (BLM),filed their briefs in federal court aftertheir challenge to the BLM’s illegalaction was dismissed by the InteriorBoard of Land Appeals (IBLA).

n The Obama Administration and fiveenvironmental groups voluntarily dis-missed a lawsuit by the groups chal-lenging the manner in which grazingon federal lands in the West is man-aged, which followed a settlementagreement under which the federalgovernment agreed to pay the groups’attorneys’ fees.

n In its litigation to prevent environ-mental groups from forcing federalagencies to write lengthy, costly, anduseless environmental studies about“global warming” before issuing oiland gas leases, MSLF is in administra-tive battles over the documents thecourt may use.

LEGAL

ACTION

A young, rural New Jersey family,sued by the National Park Service(NPS) for trespassing on a road thatcrosses the family’s property, must nowappear in New Jersey federal districtcourt to defend themselves against theNPS’s lawsuit and to attempt to gainsole title to the road. Fortunately, MSLFis defending the family.

Matthew and Aaron Hull andMatthew’s wife, Michelle, of Layton,New Jersey, were sued by the NPS afterthe family erected gates across Old Mine Road, which bisects theHulls’ property for 300 yards and passes within 20 feet of theirhouse, to keep trespassers off their land. In a lawsuit filed inMarch 2009, seeking damages and injunctive relief, the NPSalleged that the road, which lies within the Delaware Water GapNational Recreation Area (NRA), is property of the United States.The Hulls contend that the United States has never owned ormaintained the road and that it reverted to them after it wasabandoned by the local township. In a filing by MSLF, the Hullscounterclaim that they, not the NPS, own the road and the courtshould vest permanent title in them.

In the 1950s, the United States proposed creation of the TocksIsland Dam Project on the Delaware River in Sandyston

Township, Sussex County, New Jersey,which would have created a 37-mile-longlake between New Jersey and Pennsylvaniaand would have been the biggest dam pro-ject east of the Mississippi. In the 1960s, theU.S. Army Corps of Engineers acquired72,000 acres of private land; many landown-ers complained about insufficient compen-sation and heavy-handed tactics. In theend, the project failed due to local opposi-tion and lack of funds, yet the land wasnever returned. In 1978, it was transferred

to the NPS and managed as the NRA.One of the most persistent opponents of the project was

Enos “Cy” Harker, a World War II veteran who refused to sell theland on which he lived for almost 50 years until he died—whiletilling a hillside—in October 2006 at age 93. By then, he was theonly landowner along Old Mine Road who had not sold hisproperty to the federal government. In fact, he included a deedrestriction barring his property from ever being sold to theUnited States.

In September 2007, the Hulls bought the property, which isabutted on three sides by the NRA and on one side by theDelaware River. Old Mine Road was abandoned by theSandyston Township in 1988.

MOUNTAINSTATESLEGALFOUNDATION

2596 South Lewis WayLakewood, Colorado 80227

ADDRESS SERVICE REQUESTED

Non Profit OrganizationU.S. Postage

PAIDDenver, CO

Permit No. 847

MSLF BATTLES NATIONAL PARK SERVICE FOR YOUNG FAMILY

PRESIDENT AND CHIEF OPERATING OFFICERWilliam Perry Pendley

VICE PRESIDENT AND CHIEF LEGAL OFFICERSteven J. Lechner

VICE PRESIDENT–ADMINISTRATIONJanice K. Alvarado

EXECUTIVE COMMITTEE

Stephen M. Brophy, AZ: ChairmanJohn R. Gibson, UT: Vice ChairmanPeter K. Ellison, UT; TreasurerJames V. Taranik, NV; SecretaryJohn J. Blomstrom, WYKaren Kennedy, WYRon Krump, NVL. Jerald Sheffels, WADon Sparks, TX

Photo courtesy of Joel Spector