MSLF SUES FOR RACE-BASED HIRING PLAN

Winter 2016

FEDS USE PSYCHOBABBLE NOT MERIT

In a shocking story broken by Fox

News Adam Shapiro, the Federal
Aviation Administration (FAA), which
is responsible for maintaining the
safety of the thousands of aircraft that
transverse the United States on a daily
basis, abandoned a carefully developed
process for hiring the nations best and
brightest air traffic controllers (ATCs)
thus endangering the lives of millions of
Americans. The change came following
an all but unnoticed announcement by
President Obamas new FAA Administrator, Michael Huerta, in May of 2013,
to transform the FAA into a more diverse
and inclusive workplace that reflects,
understands, and relates to the diverse
customers we serve. Thereafter, the
FAA scrapped its use of difficult cognitive
assessment tests and then implemented
instead a new and highly debatable
personality testBiographical Questionnaire (BQ)that included such questions
as: The number of high school sports
I participated in was? How would
you describe your ideal job? What has
been the major cause of your failures?
More classmates would remember me as
humble or dominant?
Discarded in the process was a
thoughtful program begun in 1995 in
recognition of the fact that, with the aging
of the nations ATCs, the FAA will need
to hire a thousand ATCs each year to fill
positions around the country. To ensure
a ready pool of qualified applicants, the
FAA worked with colleges and universities to set up accredited degree programs
in Collegiate Training Initiative (CTI)
schools. Eventually 36 such schools were
established in 23 States and Puerto Rico.
Then, the FAA gave a hiring preference to
applicants who: earned a degree from a

CTI program, obtained a recommendation

from the CTI programs administrators,
and achieved the well qualified designation (a score about 85) on the demanding Air Traffic Selection and Training
exam (AT-SAT), an eight-hour computerbased test. On December 30, 2013, the
FAA notified the schools that they no
longer served as the academic pipeline for
those seeking to become ATCs.
When the FAA announced its new
hiring plan it tossed out the AT-SAT scores
and CTI qualifications of some 2,000 to
3,500 CTI graduates as well as military
veterans, each one of whom had been
classified as well qualified to become
an ATC. Each was told to begin anew, but
now the training and military service did
not count. Worse, the CTI graduates must
compete with thousands of what the FAA
calls off the street hires for whom the
FAA requires only: be a U.S. citizen, have
a high school
diploma,
speak English,
and pass the
BQ, whatever
that means.

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

www.mountainstateslegal.org

J. Brigida, who earned two B.S. degrees

from Arizona State University and received a one-hundred percent score on the
AT-SAT examination. In January of 2014,
he received a
Dear Applicant email
from the FAA
advising him
his scores
were no
longer valid
MSLF
and that he
joined with
must reapply
aviation lawafter takyer Michael
ing the BQ,
Pearson, Esq.,
which he like
a retired air
Photo Credit: Tech. Sgt. Peter R. Miller/U.S. Air Force
most of other
traffic controlhighly
qualified
applicants,
failed.
MSLF
ler in Phoenix, Arizona in filing a class
contends
on
his
behalf
and
on
behalf
of
action lawsuit against the FAA, the U.S.
the
class
he
represents
that
the
actions
of
Department of Transportation, the Office
the
Obama
administration
violate
Title
VII
of Civil Rights of the Department of Transof
the
Civil
Rights
Act
of
1964
and
violate
portation, and three high-ranking officials,
the Equal Protection Component of the
for violating the rights of the CTI graduDue Process Clause of the Fifth Amendates. The lawsuit was filed in the Arizona
ment of the Constitution.
federal district court on behalf of Andrew

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Page One

FEDS FIGHT BRANDTS LEGAL FEE RIGHTS

A Wyoming man who won a huge

victory before the Supreme Court of
the United States by reversing rulings
of a Wyoming federal district court and
the U.S. Court of Appeals for the Tenth
Circuit in favor of the U.S. Forest Service in a dispute over whether his land
belongs to the United
States and who recently
got his land back by
federal court order is
now fighting the refusal
of the federal government to pay his attorneys fee and expenses
as required by the Equal
Access to Justice Act
(EAJA). Federal government lawyers assert
that they were substantially justified in
claiming the land and fighting the man
for more than nine years.
Marvin Brandt of Fox Park claims
title to a railroad right-of-way that
bisects his land, was used by a railroad
from 1904 to 1995, and was abandoned;
ties and tracks were removed by 2000.

In 2009, a Wyoming federal district

court ruled the United States kept a
reversionary interest in the right-ofway that could be used for a trail and
not an easement in which the United
States has no interest. In 2012, the Tenth
Circuit agreed. In 2014, by 8-1, the
Supreme Court struck both
rulings: [N]othing in the
text of the 1875 Act supports [the federal governments] improbable (and
self-serving) reading [of the
law]. MSLF argues that
the federal governments
position conflicted with a
legal precedent it won in
1942 and the argument it
made then, an argument
it hid from the courts for
seven years; thus, the
federal governments litigation was not
substantially justified.
Mr. Brandt owns 83 acres of private
land patented to him on February 18,
1976, as part of an exchange with the
Forest Service, once encumbered by the
railroad right-of-way.

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Visitors to MSLFs website at www.mountainstateslegal.org responded to the

following question: Idahos Constitution bars the gift of taxpayer funds to pay
subsidies, but Boise School District pays the salary of the union president. Is that
legal? One-hundred percent (100%) said, No: Gift clauses make clear that the
pay and benefits to the union are unconstitutional. Zero percent (0%) said, Yes:
The district benefit[s] from a longstanding collaborative relationship with the
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Vote on the new question at MSLFs website today!
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updates on MSLFs Legal Cases and News Releases.

PENDLEYS VIEW

Westerners cheered the Obama

administrations decision not to put
the greater sage-grouseacross 165
million acres in eleven stateson
the Endangered Species Act list. The
sigh of relief had barely left their lips
before federal officials closed tens of
millions of acres of western land to
mining and imposed an illegal rule
that kills economic activity.
Beginning in 1999, environmental
groups petitioned the U.S. Fish and
Wildlife Service to list the sagegrouse. In early 2010, the agency
found that listing of the sage-grouse
was warranted, but precluded by
higher listing priorities. That led to
unprecedented conservation efforts
by states across the West, undertakings so successful that, on September
22, 2015, citing the collaborative
efforts, Secretary of the Interior Sally
Jewell declared the sage-grouse no
longer warranted listing and would
be withdrawn as a candidate species.
That same day, however, the federal government announced, without
required prior notice and public comment, adoption of a net conservation
gain rule whereby any use of federal
land that degrades the land, even
if by necessity, requires the user to
improve the land. The policy violates
federal law, which gives federal authority to prevent only unnecessary
or undue, not any and all, degradation. Then, the government ordered
the withdrawal from mining of over
ten million acres in the Westkilling
current and future mining in these
mineral rich states.
Idaho Governor Butch Otter and
the Idaho State Legislature sued in
Washington, D.C.; Nevadas Elko
County and Eureka County, with
two small mining companies, sued in
Reno; they were joined by Nevada Attorney General Adam Laxalt. Finally,
the Wyoming Stock Growers Association sued in Cheyenne. Little wonder
that westerners believe they have been
hoodwinked.

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Page Two

USPSS DEFIANCE OF 2ND AMENDMENT AT SUPREME COURT

A Colorado man and a national gun
rights group asked the Supreme Court of
the United States to review a 2-1 ruling
from the U.S. Court of Appeals for the
Tenth Circuit reversing the ruling
of a Colorado federal district
court striking down U.S.
Postal Service regulations restricting Second
Amendment rights. In
2013, the district court
struck as unconstitutional
a rule that bars firearms
in Postal Service parking
lots: [O]penly carrying a firearm outside the home is a liberty protected
by the Second Amendment [and a] parking
lot adjacent to [a Post Office] is not a sensitive place [such that] an absolute ban on
firearms is substantially related to [Defendants] important public safety objective.
Tab Bonidy, who is licensed to carry a
handgun and carries a handgun for selfdefense, must drive to Avon to get his mail,
but he is barred by federal regulation from

carrying a firearm, or parking his vehicle if

it contains a firearm in the lot. Mr. Bonidy
and the National Association for Gun
Rights sued in 2010. MSLF argued that the
ruling of the Tenth Circuit,
contrary to holdings of
the Supreme Court
and lower federal
courts, made the right
to keep and bear arms a
second-class right.
In 2007, the Postal
Service renewed its total
ban on firearms on Postal
Service property, first promulgated in 1972:
Notwithstanding the provisions of
any other law, rule or regulation, no person
while on Postal property may carry firearms, other dangerous or deadly weapons,
or explosives, either openly or concealed,
or store the same on Postal property, except
for official purposes.
39 C.F.R. 232.1(l). This regulation carries a $50 fine or imprisonment for 30 days,

or both, is broader than the federal statute,

which prohibits private possession of
firearms in federal facilities, except firearms
carried incident to hunting or other lawful
purposes. 18 U.S.C. 930(d)(3).
The Postal Services total ban on firearms possession impairs the right to keep
and bear arms as protected by the Second
Amendment even when individuals are
traveling to, from, or through Postal property because the Postal Service does not
allow people to store a firearm safely in vehicles. Anyone with a hunting rifle or shotgun in his car, or a handgun in his glove
compartment for self-defense, violates the
Postal Service ban by driving onto Postal
Service property. Thus, the ban denies the
right to keep and bear arms everywhere a
law-abiding gun owner travels before and
after visiting Postal Service property. On
June 26, 2015, by 2-1, a Tenth Circuit panel
ruled for the federal defendants as to the
parking lot and the interior of the building.
The dissent argued the parking lot ban is
unconstitutional.

MINERS TEST ILLICIT WATERS OF THE UNITED STATES RULE

A 120-year-old nonprofit, nonpartisan mining trade association
with thousands of members filed a
lawsuit in the federal district court for
the District of Columbia, which was
transferred subsequently to the U.S.
Court of Appeals for the Sixth Circuit,
against the Environmental Protection
Agency (EPA), the U.S. Army Corps of
Engineers, and their top officials over
their newly released final rules that
purport to define waters of the United
States as set forth in the Clean Water
Act (CWA). The American Exploration
& Mining Association (AEMA) (once
Northwest Mining Association) of Spokane, Washington asserts that the rules
published on June 29, 2015, violate both
the Regulatory Flexibility Act and the
Administrative Procedure Act. AEMA
is represented by MSLF, which commented on the draft rules by arguing
that they illegally: extend to all waters
(not just wetlands) and all waters adjacent to non-navigable interstate waters;
create a new jurisdictional concept

similarly situated waters by misquoting the Supreme Court; and ignore

the Courts demand regarding alleged
wetlands adjacent to non-navigable
tributaries. MSLF earlier
won a landmark ruling for
the association on the Regulatory Flexibility Act.
Over the years, landowners challenging federal
wetland determinations
reached the Supreme Court
of the United States. In
1985, deciding at which
point water ends and
land begins, the Supreme
Court upheld a definition that included
wetlands that actually abut[] on traditional navigable waters. In 2001, the
Court held that non-navigable, isolated, intrastate waters, even those used
by migratory birds, were not within
the CWA. In 2006, ruling on whether
the CWA included intrastate wetlands
adjacent to non-navigable tributaries of
navigable waters, the Court vacated the

Corps rules. On behalf of a four judge

plurality, Justice Scalia required a continuous surface connection to bodies
that are waters of the United States in
their own right, but Justice
Kennedy, while concurring
in striking down the rules,
demanded a significant
nexus to waters that are or
were navigable in fact or
that could reasonably be so
made.
In 2007, the EPA and
the Corps responded to the
Courts rulings and in late
2008, after the receipt of
66,000 comments, issued new guidance on identifying waters of the
United States. Then, in 2011, the two
agencies proposed new guidance that
expanded significantly the reach of
the CWA, including over vernal pools,
prairie potholes, natural ponds, and
playa lakes. In response, 230,000 filed
comments, many demanding a formal
rule-making by the agencies.

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Page Three

SUMMARY JUDGMENT - WILLIAM PERRY PENDLEYS LATEST

For 25 years, MSLF president William
Perry Pendley has written a hard-hitting
monthly column decrying breaches of the
rule of law, abridgment of constitutional
liberties, and unwise public policies.
Over the years, his writings have appeared in the New York Times, Wall Street
Journal, Washington Post, New York Post,
Washington Times, USA Today, Cow Country, Landman, Loggers World, Miners News,
and many other publications across the
country. He has assembled his favorite
columns into an impressive, fact-filled,
strong opinions-laced, paperback volume
entitled, Summary Judgment: 25 Years of
Condemning Treachery, Tyranny, and Injustice. It is a great read.
William Perry Pendleys first two
booksIt Takes A Hero: The Grassroots
Battle Against Environmental Oppression
(Free Enterprise Press, 1994) and War on
the West: Government Tyranny on Americas Great Frontier (Regnery, 1995)drew
high praise. Likewise his recent books:

Warriors for the West: Fighting Bureaucrats, Radical Groups, and Liberal Judges on
Americas Frontier (Regnery, 2006):
Perry is a skilled legal advocate [and] a
master storyteller; however, the tales he tells
are not for the faint of heartprepare to be
infuriated!
Linda Chavez

Sagebrush Rebel: Reagans Battle

Against Environmental Extremists and
Why It Matters Today (Regnery, 2013):
The truth is in Sagebrush Rebel.

Mark R. Levin

We must take up Reagans fight to

preserve the American way of life. Sagebrush
Rebel shows us how.
Michelle Malkin

Paul Kengor, author of The Crusader: Ronald Reagan and the Fall of Communism
The columns began with January of
1990, Mr. Pendleys first full year with
MSLF, and were called Summary Judgment. (In the law, summary judgment
may be granted when no genuine issues
of material facts are in dispute and it is
mandated as a matter of law.) Chapter
titles include:
An Environmental President
Nonsense Runs Through It

Bush Goes Green and Loses

A Shift to the Right

Edwin Meese, III

This is indeed a call to action.

Hugh Hewitt

Victory Before the Supreme Court

Clinton Escalates His War on the West

Crimes Against Nature

Grizzly Bears and Self-Defense

U.S. GovernmentLike Nobodys

Business
Life, Liberty, and Property

Whither the War on the West

NOW AN AUDIOBOOK!

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

25 Years of
Condemning
Treachery,
Tyranny, and
Injustice

Sagebrush Rebel illuminates a forgotten Reagan warnot with the Soviets but
environmental extremists.

Clintons War on the West

William Perry Pendley, who has litigated

these issues, has performed an extremely
valuable service by making the academic
accessible.

Summary
Judgment

Clintons Justice Departments Tenth Year

Government Lawyers and Justice

Ronald Reagan, Sagebrush Rebel,

Rest in Peace
America at War

A Color-Blind Constitution

Bureaucrats Behaving Badly

WILLIAM PERRY PENDLEY

Author of Sagebrush Rebel

The Right to Keep and Bear Arms

Sue and SettleUnconstitutional Tactic

The Threat of Domestic Terrorism

The Commerce Clause and Freedom

Equal Access to Justice

President Obamas Department of

the Interior

If one truth emerges from all of these

essays over the years, it is that expressed
by Ronald Reagan in 1961: Freedom is
never more than one generation away
from extinction. We didnt pass it on to
our children in the bloodstream. It must
be fought for, protected, and handed
on for them to do the same, or one day
we will spend our sunset years telling
our children and our childrens children
what it was once like in the United States
where men were free.

KEEP READING!

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newsletter, is the indispensable tool for
staying informed regarding the latest in
MSLFs precedent-setting, nationallysignificant, public-interest litigation. The
Litigator is mailed on the first of February,
May, August, and November. Ensure
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Summary Judgment is FREE with a $25.00 contribution to MSLF.

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Page Four

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

Mountain States Legal

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

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

support its aggressive litigation program.

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

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

Therefore, Your Generous

Contributions To MSLF Are
Tax Deductible!

MSLF CANNOT REST;

ITS ROLE ESSENTIAL
TO REMAINING FREE
In 2016, MSLF will have been going
to court for 39 years, fighting to compel
compliance with the commands of the
Constitution and federal law to ensure
that America remains a nation of laws. At
no time during these nearly four decades
has the need for MSLF to go to court on
behalf of those who could not afford legal
representation been lessened. In fact, as
the federal bureaucracy has grown and as
federal laws have become more far-reaching and intrusive, MSLFs caseload has
increased dramatically. That is obvious
from a review of the scores of MSLF cases
all across America.

Your Support Is Vital

If there is one lesson MSLF has learned
over the past 39 years, it is that, regardless of which party occupies the White
House or controls Congress, the threat to
liberty remains and MSLF must be ready,
willing, and able to go to court to defend
freedom. As Thomas Jefferson once said,
Eternal vigilance is the price of liberty.
One of the prices that must be paid for
MSLF to remain vigilant is the price that
tens of thousands of Americans pay
annually by making their tax-deductible
contributions to MSLF and its aggressive
litigation in defense of freedom.
The support of MSLF by tens of thousands of Americans committed to freedom could not be more important. Your
support will ensure that MSLF remains
IN THE COURTS FOR GOOD!

MSLFs commitment to the Constitution ensures that America remains a nation

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

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

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

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

The Means u Income Tax A person may deduct up to 50 percent of his or her adjusted
gross income (AGI) for gifts of cash to a qualified charity; that limit is 30 percent for gifts of
appreciated property. Itemized deductions made during 2016, including charitable deductions, are reduced for individuals earning $259,400 (married couples earning $311,300) or
more. Please consult your tax adviser.

Problem

Estate Tax A person who dies in 2016 is entitled to an exclusion of up to $5,430,000; however, estates in excess of that amount may deduct charitable gifts, by will or trust. Because
2016 federal estate taxes over $5,450,000 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.

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Page Five

WYOMING FARM BUREAU IN COURT ON VAST EPA LAND GRAB

On behalf of its client, the Wyoming
Farm Bureau Federation, MSLF recently appeared before a federal appeals court in its
battle to reverse a decision
of the U.S. Environmental
Protection Agency (EPA)
that granted the Northern
Arapahoe Tribe and the
Eastern Shoshone Tribeof
the Wind River Indian
Reservation in Fremont and
Hot Springs Counties in
west central Wyomingjurisdiction over 1.48 million
acres of Wyoming. Days
after the argument, MSLF
filed a supplemental brief
with the three-judge panel
arguing that the EPAs
decision is not moot and that the court must
rule that the land is not Indian Country.
In February of 2014, the group petitioned the U.S. Court of Appeals for the
Tenth Circuit contesting the EPAs December of 2013 decision to grant Tribe-asState status under the federal Clean Air

Act. The Farm Bureau, some of whose

members live, work, and own property in
and near Riverton, argues that the EPAs decision ignores more than one
hundred years of actions by
Congress, Wyoming, the
Tribes, and various rulings
by a host of federal and state
courts including the Supreme Court of the United
States. The Farm Bureaus
February petition follows a
similar action by the State of
Wyoming.
In December of 2008,
both Tribes sought Tribe-asState status under 301(d)(2)
of the Clean Air Act, which
provides an express congressional delegation to tribes of the EPAs
authority to regulate air quality on fee
lands located within the exterior boundaries of a reservation. The Tribes expended
82 of their 87-page application arguing that
they possessed jurisdiction over Riverton.
Because their application ignored a host of

federal statutes and federal and state court

rulings, in 2009, the State of Wyoming, the
Wyoming Farm Bureau, and other entities
filed comments opposing the application.
The Reservation, which is shared by the
Tribes, was established in 1868. In 1904, the
Tribes signed an agreement with the federal
government ceding 1,480,000 acres of land,
which were to be opened for sale under
the homestead, townsite, coal, and mineral
land laws, which was entered into with the
United States Indian Inspector in exchange
for per capita payments to tribal members
and capital improvement projects inside
the diminished reserve or Reservation.
In 1905, Congress ratified the agreement.
In 1906, the ceded lands were opened
for settlement by a Presidential Proclamation and allotments were sold to
non-Indians in an area that today makes
up Riverton. In 1939, some unsold ceded
lands were restored to the Reservation,
but a significant portion was not. Riverton is located wholly on lands ceded in
the 1904 agreement and never restored to
the Tribes.

ARKANSAS FAMILY PREVAILS AGAINST U.S. FOREST SERVICE

An Arkansas family, the forebearers
of which settled in the Ozark Mountains
in 1808, prevailed in its decades-long
efforts to get the U.S. Forest Service to
stop trashing its land and to pay for the
damage the agency has done over the
years. Days before its lawsuit against
the United States was to be tried before
an Arkansas federal district court in the
familys tort lawsuit against the United
States, a settlement was announced.
Matthew McIlroy and his father William L. McIlroy, who own a farm near
Van Buren, filed their lawsuit in 2014
pursuant to the Federal Tort Claims Act
(FTCA), which allows lawsuits against
federal agencies for the actions of their
employees after the federal government
refused to respond to the administrative claim filed by the family in 2013.
The McIlroy farm is comprised of three
parcels in Franklin County in Arkansas
northeast of Fort Smith that abuts the
Ozark National Forest, which was decreed in 1908. The McIlroys claim that,

for years, U.S. Forest Service employees

knowingly and unlawfully trespassed
upon and negligently damaged, and
created a nuisance on their private
property.
In the late 1960s, the
family complained that
Job Corps students were
trespassing on and littering its property, damaging
its fences, and destroying
its hay. In 1971, the family
discovered the Forest Service had drilled a well on
its property. Forest Service
officials claimed the water
well was on federal land.
For years, top officials repeated that statement over
the familys protestations.
In 1973, the Job Corps tore down a
100-year old levee built upstream of
the farm at the confluence of Mulberry
River and Fanes Creek to protect the
farm and the site of the Job Corps facil-

ity, which caused flooding and erosion

downstream, alteration of the river bed
due to silting and deposits of eroded
rock, and destruction of 10 acres of
the farm. Further illegal
actions widened a water
channel across the farm.
In 1998, the family discovered part of its
fence had been flattened,
a sewage effluent line installed over the fence and
across 50-60 yards of the
farm, and sewage effluent
discharged into Mulberry
River. Then the Forest
Service installed a temporary water line across
the farm that blocked
entry, used heavy equipment to blade
dirt and drag drainage ditches, built a
service road across the farm, poured
concrete on the road, caused serious
erosion, destroyed fences, and loosed
family livestock.

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Page Six

LEGAL
ACTION
n On behalf of the TABOR Foundation,
which defends the Taxpayers Bill of
Rights (TABOR), MSLF filed a reply
brief at the Court of Appeals seeking
to reverse a state district court ruling
in support of new taxes imposed by
the Regional Transportation District
of Denver and Boulder.
n The Wyoming Stock Growers
Association, represented by MSLF,
urged the U.S. Court of Appeals for
the Tenth Circuit to annul a Wyoming
district court ruling dismissing a lawsuit filed by Wyoming demanding
the Secretary of the Interior fulfill
her legal duty to remove excess wild
horses on public lands, including in
one of the nations largest counties, in
Wyoming along the Colorado border.

NOTABLE
QUOTES
Proud of you as always [for suing the
FAA.]
Jim McCully
Vacaville, CA
Thank you for taking on this VERY
important [FAA] case.
Geri Zahner Heasly
Aurora, CO
A great lawsuit [against the FAA].
NEVER SURRENDER!!!!!
William M. Conner
Bellevue, WA

n MSLF filed a friend of the court

brief urging the Supreme Court
of the United States to review an
appeals court decision regarding
the constitutionality of ObamaCare.
On behalf of its client, Pacific Legal
Foundation argues that ObamaCares
tax on those who decline to purchase
health insurance is unconstitutional
because the bill that provided for the
tax did not originate in the U.S. House
of Representatives as required by the
Constitutions Origination Clause.
n On behalf of the Colorado Union
of Taxpayers Foundation (CUT),
MSLF urged the Colorado Court of
Appeals to rehear its challenge to the
constitutionality of a grocery bag tax
imposed by Aspen, Colorado; CUT
argues that the tax violates TABOR.
n MSLF filed a friend of the court
brief urging the Supreme Court of
the United States to grant a petition
filed by Pacific Legal Foundation
(PLF) on behalf of its client who was
discriminated against by the U.S.

Department of State due to his race.

n In a return to one of its first lawsuits,
MSLF filed a friend of the court
brief at the U.S. Court of Appeals
for the Tenth Circuit on behalf
of itself and the Wyoming Stock
Growers Association to support the
Rock Springs Grazing Association
regarding wild horses on public and
private land in southcentral Wyoming
along the Colorado border.
n On behalf of the Colorado Mining
Association and the American
Exploration & Mining Association,
MSLF filed a friend of court brief
at the U.S. Court of Appeals for
the Tenth Circuit arguing that the
United States may not avoid liability
under the Superfund statute
for mine waste disposal on land it
owned at the time of disposal merely
because those lands were subject to
unpatented mining claims under the
federal mining law.

Yall do good work. Everything you

do is rational [and] reasonable.
George Daniel Bennett
Tallahassee, FL

You are doing a great, important

work.
Carl Vargo
College Station, TX

Thank you for all your work.

Charlotte H. Harbs
Middle Village, NY

The causes you are fighting for are

urgent.
Onafaye Armstrong
Shawnee, OK

I love your newsletters. Actually, it is

about the only positive news these days.
Cathi Townsend
Millersville, MD
[T]he Lord bless your labors to push
back big government and all its abuses.
Sally L. Arias
Portland, OR
The cases you defend are more important now than ever before. Our government
is out of control.
Donald R. Strube
Riverton, WY

Thanks for what you do!

Rosemarie Neuman
Stevensville, MT
Thank you for all you do.
Nellia S. Young
Tucson, AZ
Thank you for yourconcern for the
safety of the nation.
John M. Lucas
Vienna, VA

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Page Seven

MOUNTAIN
STATES
LEGAL
FOUNDATION

Non Profit Organization

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

2596 South Lewis Way

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

William Perry Pendley

VICE PRESIDENT AND CHIEF LEGAL OFFICER

Steven J. Lechner

VICE PRESIDENTADMINISTRATION

Janice K. Alvarado

EXECUTIVE COMMITTEE

John J. Blomstrom, WY; Chairman

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

WYOMING MAN BESET BY EPA HAS MSLF AS HIS ATTORNEY

In March of 2014, a Wyoming welder came under attack

from the Environmental Protection Agency (EPA) for building a stock pond on his private property near Fort Bridger
(population 345) in the Equality States southwestern corner. The EPA threatened to fine Andy
Johnson $75,000 a day unless he restored
a wetland he altered, purportedly without a permit and, thus, contrary to federal
law. Mr. Johnson, who owns eight acres in
Uinta County on which he runs horses and
watches his three daughters play, responded that the stock pond he builtfilled with
crystal-clear water and used to create a
habitat for brook and brown trout, ducks,
and geesewas permitted by the Wyoming
State Engineers Office.
That story was followed by yet another, a television
story that noted the outrage of the Wyoming congressional
delegation, and included an interview on EPAs outrageous
conduct in front of MSLFs national headquarters. Then,
the Washington Times carried a devastating op-ed by MSLFs
president, William Perry Pendley, entitled, EPA out of touch,
out of control in WyomingFar-out regulations ignore the
real story in Wyoming. It comes as no surprise to MSLFs
supporters around that country that, when Mr. Johnson chose
to fight back by suing the EPA, MSLF stood with him.

Andrew and Katie Johnson own a small farm where they

grow hay and raise horses and cattle. In 2010, Mr. Johnson
applied for and received a permit from the Wyoming State
Engineer to build a stock pond to water his horses. From
2010 to 2013, he built a 1,275-foot by 170-foot
pond by damming Six Mile Creek, which
now flows through his stock pond.
In 2013, the Johnsons were visited by two
Army Corps of Engineers compliance officers
who took measurements of the stock pond,
asserted that the creek was within federal
jurisdiction as waters of the United States,
and said Mr. Johnson was required to apply
for a permit before building the pond. The
officers did not take water samples, measure
the amount of dredged or fill material discharged into Six
Mile Creek, or provide Mr. Johnson with any information
regarding permit requirements or the application process.
In May of 2013, the EPA sent Mr. Johnson a letter asserting that he may have violated the Clean Water Act (CWA).
On January 30, 2014, the EPA issued a Compliance Order
against Mr. Johnson. On August 27, 2015, assisted by local
counsel in Cheyenne, Wyoming, Mr. Johnson sued the EPA.
MSLF and Pacific Legal Foundation of Sacramento, California
serve as co-counsels to Mr. Johnson in his most courageous
battle against the EPA..

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