4th Biennial Business and the Law Conference Tuesday, March 22, Helena, Montana Keynote Address: Montana Chief Deputy Attorney General Alan Joscelyn “We do the right thing for the right reasons.” That was my introduction to the Attorney General’s office. The first thing told me in the executive team meeting on my first day in the office. I liked hearing that, it made me relax a bit about what I’d got myself into in agreeing to join my former law partner, Tim Fox, in his first foray into elected public service. In my few minutes today I’d like to talk just a little about what that means to me, doing the right thing for the right reasons, and some of the tough issues that creed leads to in the issues we deal with regularly in the Attorney General’s office. To start with, how do you know what is the right thing? How do you know what is the right reason? In my view, that requires perspective. And just how do you get perspective? It’s not easy. It’s a struggle. If it’s not a struggle, you’re probably not doing it right. But there are some things that help. One is age. I have that one covered. 1 Another is experience. One of my former law partners, Jock Anderson, has a saying. “Good judgment comes from experience. Experience comes from bad judgment.” I’ve done at least my share of dumb things, so you can draw your own conclusions. But perspective is more than anything, a function of dimensionality. Being able to look at an issue from different viewpoints. Different points in time and different points of view in our own time. That means part of getting perspective is taking the time to know and appreciate our own history, to try and understand the experiences of those who came before us. What were the issues they struggled with, how did they resolve them? What did they want for us, their descendants? My grandpa Archie was a writer. He grew up in Belt, went to college in Helena and then lived most of his life in Missoula. In ways, he was an early day Louis L’amour, but probably more prolific, publishing more than 230 novels, mostly westerns, with the big publishing houses in New York and London. He drew on his experiences growing up on a Hereford ranch at Armington, near Belt, in early‐day Montana. One of the things Grandpa wrote, just for his grandchildren, was a nonfiction manuscript which he titled Papa Was a Pioneer. The flyleaf of the manuscript he gave me has the following in his own hand: “Alan, Something from your Grandfather that you may know your Great‐grandfather better.” That manuscript is a wonderful time travel machine, and one of the things that has helped construct my perspective. I’m going to read you a couple excerpts from the first chapter of Papa Was a Pioneer, because I believe it is never a waste of time to think a bit about where we’ve come from as Montanans. Papa lived during the century of transition in which the country moved from the horse and buggy era into the mechanical and scientific age. He saw much of the second half of the nineteenth century and the first half of the twentieth. Though he crossed the continent by train instead of by covered wagon, he had his full part as a pioneer, in the building of the nation. . . . Papa lived to see the age of communication ‐‐‐ of great newspapers, the development of the telegraph and the telephone, and such totally undreamed of miracles as the radio and television. Anyone brash enough to predict networks of paved highways, filled with rushing vehicles with no visible means of locomotion would have been called not a dreamer, but plain crazy. While as for flying ‐‐‐! And writing more specifically as to the time when my Great Grandpa was born: Woods and streams were usually within easy walking distance. Hunting and fishing was not only good sport but helped provide for the larder, as well as affording variety. Game laws were either unheard‐of or nearly so. There were nuts to gather, fruit to pick. The list of tasks was almost endless. Children had little idle time, for wanting something to do. The human tendency is to look back in a spirit of nostalgia, clothing the past with a never‐never land atmosphere. But in these good old days a foreboding wind blew across the land. For 2 decades it had been gathering force, building toward a hurricane. Human slavery, in all its ramifications, moral, economic, and social, was everywhere of increasing concern. Even the most eminent statesmen seemed unable to solve the issue, or to sweep it under the rug. Despite all sorts of proposed solutions, it refused to go away, casting a thickening shadow of oncoming storm. A lanky lawyer from Illinois was beginning to achieve national stature for his pronouncements. As I said, revisiting the experiences of those who came before us allows us to better understand what’s happening now, what’s likely to happen from here. Yes, we have big problems to deal with today. But those who were here before us also had big problems. They found a way to deal with those problems. Just knowing that, remembering that, helps us figure out what is right, today, for us, who live now, and also for those who will follow us. So let me pass along a couple observations I, with my perspective, have formed as the result of representing the legal interests of the State of Montana. My first observation: Our cases often involve tension between the Tenth Amendment and the Commerce Clause. Depending on the case we may like the Tenth Amendment and dislike the Commerce Clause, or vice versa. The foundation of States’ rights is the Tenth Amendment to the U.S. Constitution, part of the Bill of Rights, ratified in 1791. It implements the principle of federalism, under which the United States (the Federal Government, a/k/a the Feds) possesses only those powers delegated to it in the constitution, with all other powers reserved to the States, or the people. We find ourselves asserting the Tenth Amendment on the part of the State of Montana all the time. The U.S. Constitution’s Commerce Clause, Article I Section 8, says that Congress has the power to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes. The Supreme Court has interpreted this clause to mean that, unless Congress has manifested a contrary intent, a state cannot unreasonably discriminate against or unduly burden interstate commerce. Where Congress has specifically acted pursuant to this power, its action pre‐empts state laws that are contrary to what Congress has done. However, even in the absence of Congress taking specific action, the Commerce Clause has an effect on what a state can or can’t do insofar as affecting interstate commerce. This negative implication of the Commerce Clause is known as the “Dormant Commerce Clause.” Let’s consider a couple cases. First let’s look at the Waters of the U.S. rule. A little background. The Clean Water Act (CWA) was enacted in 1972. Among other things, it requires a permit from U.S. Army Corps of Engineers for any discharge of dredged or fill materials into "navigable waters." "Navigable waters" is defined as "waters of the United States." Initially, right after enactment of the CWA, the Corps of Engineers (COE) construed these provisions of the CWA to cover only waters navigable in fact. 3 In 1975‐76, the Corps issued interim final regulations redefining "waters of the United States" to include not only actually navigable waters but also tributaries of such waters, interstate waters and their tributaries, and nonnavigable intrastate waters whose use or mission could affect interstate commerce. The rules also extended the Corps’ CWA jurisdiction to cover all "freshwater wetlands", defined as an area that is "periodically inundated" and is "normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction." Against that regulatory backdrop, since 1985, the federal executive branch has been sparring with the judicial branch of the government over the reach of the CWA, generating three landmark decisions of the US. Supreme Court, the first in 1985 (Riverside Bayview Homes), the second in 2001 (SWANCC) and the most recent, the Rapanos case, in 2006. In a nutshell, the Supreme Court, in these three decisions, has said Congress intended the Clean Water Act to cover more than traditional navigable waters, but has been unwilling to give EPA and the Corps of Engineers authority to reach into states to the furthest extent allowable by the Commerce Clause. In April of 2014, EPA and the Corps of Engineers published a proposed rulemaking to again modify the definition of “Waters of the U.S.” My own take on the rule is that the agencies’ intention in adopting this rule was to push the envelope as far as possible under the last decision of the Supreme Court, hoping to exploit the almost even split in the Court in that case. Of course with Justice Scalia’s seat now empty and to be filled, it is anyone’s guess what the Court’s next take on this issue will be. In joining the litigation challenging this rule, one of our big motivations was to make the Tenth Amendment argument that, by adopting a definition of waters of the U.S. which extends the jurisdiction of the federal agencies’ far upstream from traditional navigable waters, the rule infringes on the powers reserved to the States. Recognize that the unspoken import of this argument is that the Tenth Amendment trumps the Commerce Clause. Specifically, we’re saying that interpreting Congress’ words “waters of the U.S.” the way the agencies want to interpret it would exceed the powers given to Congress under the Commerce Clause and therefor infringe on states’ rights under the Tenth Amendment. As a side note, we are also heavily involved in the ongoing challenge by a coalition of states to the so‐
called Clean Power Plan, which is the subject of Prof. Johnstone’s remarks at this conference. That case also involves a Tenth Amendment argument, but doesn’t involve the same Commerce Clause tension as the Waters of the U.S. rule case, because the main argument there is that EPA clearly is beyond the authority Congress gave it. We’re saying Congress clearly did not intend to exercise the full extent of power granted by the Commerce Clause and clearly limited what the agency can do, and that the agency ignored the limits Congress placed on the agency. EPA wants to exercise Congress’ full powers under the Commerce Clause without Congress ever having done so itself. In some cases, we want to argue in favor of Congress’ powers under the Commerce Clause and against State’s rights reserved by the Tenth Amendment. 4 The Coyote Island matter is the case in which a company with coal interests in Montana and Wyoming is seeking federal and state permits to construct a commodity transshipping facility at the Port of Morrow, on the Columbia River, at Boardman, Oregon. That is roughly due south of the Tri‐Cities just across the Washington‐Oregon line. In mid‐2014, the company had acquired all the permits it needed from the State of Oregon, including three from the Oregon Department of Environmental Quality, and needed just one permit from the Oregon Department of State Lands under Oregon’s removal‐fill law, which regulates removal and fill of material within waters of the state. The project is proposed within an existing industrial port facility, with existing structures immediately upstream and downstream, all of which had received the fill permits. In August of 2014, the Oregon DSL issued its decision denying the permit on the basis the new dock was not consistent with the protection, conservation and best use of the water resources of the state, and would interfere with a small but important and long‐standing fishery at the project site. Our attention was drawn to this case because, with all the other dock facilities on either side having been permitted, the decision did not seem to be supported by the facts, but instead seemed to be driven by politics. Montana is a landlocked state which produces lots of bulky commodities. Grains, timber, coal, oil and gas. But our population is only about a million people, so those commodities have to be exported from our state to places elsewhere in the U.S. and the world. If one of the states that lies between Montana and the markets for our products decides to interfere with transit of our goods, we have a problem. And where do we go for a remedy? To the constitution. We have intervened in the appeal of the agency decision in this case. We want to argue, and will argue, have argued, that powers granted to Congress under the Commerce Clause properly curtail the rights of the State of Oregon to conduct affairs in its state a way that unreasonably interferes with our ability to get our goods to market. So, with respect to the Waters of the U.S. case we want to argue to curtail the rights given the federal government under the commerce clause in favor of the rights reserved to the states under the Tenth Amendment. In the Coyote Island case, we want to argue that the powers delegated to Congress by the Commerce Clause curtail the rights reserved to the states. The fact we make different arguments depending on the case means we always have to be mindful about the position we are taking, and how it may affect our legal assertions in other cases. The lawyers in the room will tell you that if you make a statement in a brief that goes against your interests in another case, there is a pretty good chance someone will take note and try to embarrass you with it. Let’s look at a situation that has required us to balance competing considerations, sage grouse. For several years, the federal government has been evaluating whether the sage grouse should be listed as endangered under the federal Endangered Species Act. To try and get ahead of this, and influence the decision in favor of not finding endangerment, the State of Montana, along with other western states, has invested a lot of time and money in state‐implemented plans to protect the species. In September of last year, the Department of the Interior decided against listing partly on the strength of the various states’ plans. So that would represent a good example of cooperative federalism, where the feds and the states actively work to balance the exercise of power delegated to Congress by the Commerce Clause and powers reserved to the states by the Tenth Amendment. 5 But in addition to relying on the states’ plans, the Department of the Interior implemented other restrictions on federal lands within the western states, using powers delegated to the Department by Congress in the Federal Land Policy Management Act (FLPMA). Specifically, amendment of BLM and US Forest Service land use plans, to create new restrictions for protection of sage grouse, and withdrawal of large acreages of federal lands from the operation of the mining laws. In other circumstances, Montana might well be inclined to ask the federal courts to take a really hard and critical look at the authority of the Department of the Interior and Department of Agriculture, under FLPMA, to create the sort of restrictions created by the land use plan amendments. And at the authority of the Secretary of the Interior to withdraw large acreages of land from operation of the mining law. But now there are other considerations. It is widely expected that environmental conservation groups will be suing the federal government, challenging the decision not to list the sage grouse. To the extent the land use plan amendments and the withdrawal aren’t in place to justify the decision not to list, that decision would be in jeopardy, so the State has an interest to hold off on those challenges. In fact, we often are simultaneously suing the federal government in one or more cases while supporting the feds in other litigation. At the same time we are in court arguing against lawyers of the U.S. Department of Justice in the Clean Air Act and Waters of the U.S. cases, we are standing shoulder to shoulder with them in litigation in which they have been sued by environmental conservation groups seeking to throw obstacles in the way of agency decisions that allow what we believe to be reasonable use and regulation of federal lands in our State. We intervened in litigation in which two environmental groups challenged the U.S. Office of Surface Mining decision approving an amendment of the Spring Creek Mine’s operating plan. Our participation helped, in my opinion, educate the Court about Montana’s stake and participation in coal mine permitting, and to achieve a resolution that kept the mine operating while the federal agency does an additional review of points raised by the environmental groups. We have participated in several cases in which management decisions of the U.S. Forest Service have been challenged by environmental groups seeking to stop timber management activities. One was the project on the Ten Mile watershed west of Helena, in which the judge recognized the critical importance of the thinning activities in protection of the City of Helena’s water supply. We are currently involved in two other similar cases, one near Libby the other near Deer Lodge. Another situation in which perspective becomes very important is the public lands issue. There are no simple answers to the issues raised about federal lands. Our state is 30% federal. In other western states, the percentage of federal land ranges from 28% to 81%. In the past few years, there has been a lot of attention focused on this fact by interests dissatisfied with the notion that many western states have, in essence, a large federal state within the states’ borders. On the one hand, some people contend the federal government has no right to continue to own and manage these vast tracts of land, and are obligated to, or should in any event, transfer those lands to the states. On the other hand are people who fear this would result in loss of those lands for public recreation and wildlife habitat. 6 Let’s look at just a little history on public lands and how the western states ended up with large percentages of federal lands within their state borders. When our nation was first founded, the notion was that lands acquired by the federal government by treaty with foreign governments, cession by any of the original thirteen states, or by treaties with Indians, would be formed into, or included in, new states to be recognized by and accepted into the union, and then disposed of by the federal government. And initially, a multitude of laws were enacted by Congress pursuant to the U.S. Constitution’s Property Clause for disposition of those lands. Laws providing land to veterans as payment for services rendered, homestead laws, railroad grants, grazing laws. So in the first part of our country’s lifespan, public land law consisted mostly of laws for disposition. But it wasn’t long before that started to change. Problems with misuse and abuse of the laws, and disposition of the most productive lands, resulted in a gradual change from a policy of disposal to a policy of retention. Most of the laws providing for disposal were repealed by 1920. At the same time laws for disposition of federal lands were gradually being repealed, new laws were being enacted by Congress for management and regulation of those lands. And as the federal government asserted more management and ownership prerogatives, the U.S. Supreme Court had more opportunities to decide just what was the extent and sort of authority given Congress by the Constitution. The Constitution contains two principal provisions regarding public lands, the Enclaves Clause and the Property Clause. During the time following the end of the Revolutionary War and before ratification of the Constitution, the newly‐minted federal government had two problems with ownership of lands not owned by the various states. The first was that it needed a legal means to own and control lands required for important governmental functions such as forts, prisons, seats of government, etc. The second was that, as the result of negotiations among the various States leading up to ratification of the Constitution, tracts of land, generally to the west of the original thirteen states, were ceded to the federal government by several of the states, and the federal government needed a legal basis to own and deal with those lands. The first need was addressed in the Constitution by the Article I Enclave Clause. The second was addressed by the Article IV Property Clause. By far and away, the great majority of federal lands within the western states are not lands subject to the Enclaves Clause, because they are not lands needed by or held by the federal government for sovereign government functions. Rather, these big blocks of land are public domain lands, subject to Congress’ powers under the Property Clause rather than the Enclaves Clause. 7 So what are Congress’ powers under the Property Clause? Well, the United States Supreme Court has had lots of chances to weigh in on that question, and from early on to the present, has given a broader and broader reading to Congress’ power. In Kleppe v. New Mexico, in 1976, the Court said: And while the furthest reaches of the power granted by the Property Clause have not yet been definitely resolved, we have repeatedly observed that “[t]he power over the public land thus entrusted to Congress is without limitations.” United States v. San Francisco, supra, [310 U.S.] at 29. In Ventura County v. Gulf Oil Corp., in 1979, the 9th Circuit Court of Appeals said that arguments to limit the scope of the Property Clause, were, in light of Kleppe, legally frivolous. So, while there certainly are people who contend the federal government has no right to do anything other than transfer the large blocks of federal lands out of federal ownership, the Supreme Court has said Congress can do whatever it wants with them. It isn’t likely in our view the Supreme Court is going to change its views on this in the foreseeable future. What about Congress deciding to do something different, for instance enact legislation for transfer of these lands? There is no question it has the authority to do so, but will it? You can all answer that one as well as I. So where does that leave us as a state, and more specifically, where does it leave us who currently populate the Montana Attorney General’s office? We’re trying to exercise some of that perspective I spoke of, making the best of the situation as it is, and pointing out to federal agencies when we believe they are acting beyond their authority, but supporting them when they are managing the federal lands in the best interests of the people of our state. We’re trying to educate the federal judiciary about the need to recognize when the United States has to do better as a manager and owner. We filed an amicus brief recently with the U.S. Court of Appeals for the Tenth Circuit in a case in which the United States has asked the courts to find that it, the federal government, is not an owner of lands, for purposes of CERCLA, the Superfund law, with respect to federal public domain lands which are covered by unpatented mining claims. We asked the Court to overturn the District Court decision finding the federal government is not an owner in those circumstances because we believe the federal government has to acknowledge and live up to the responsibilities which go along with retaining ownership of those large tracts of lands in the western states. Essentially our message to the federal government in that brief is, fine, if you want to be the owner for all purposes, then be the owner, but you can’t be the owner for some purposes and not for others. Some commentators call the current relationship between the U.S. and the western states, with respect to the federal public lands, cooperative federalism. If cooperative federalism is the way it’s going to be, then let’s do the best we can to make it work. Let me conclude this discussion with a bit more reflection. Our country’s first constitution, the Articles of Confederation, was drafted in 1776, at the same time the Declaration of Independence was drafted. Our current constitution followed in 1789, thirteen years later, meaning our government has been in place, and working, for 217 years. 8 Because our country is more than two centuries old, and those of us sitting in this room today have experienced nothing else during our lives, not to mention the lives of our parents, grandparents and so on, we tend to think, when we think about it at all, that our government is well settled, has stood the test of time, and that the big questions have all been dealt with. So that all we have to do is take our turn in the driver’s seat, keep the wheels pointed straight, and everything will be all right. I don’t think that. Big challenges are being presented to us every day, year in and year out. This being a Presidential election year makes that point for me. We have to do what those who lived here before us did. Keep things in perspective. Try to do the right thing for the right reasons. If we can do that, I am confident we can deal with today’s big problems just as our predecessors dealt with their big problems, and can pass along a vibrant, functioning, well governed society to those who come after us. 9