Property Rights Foundation of America®
Founded 1994

Defending Freedom in an "Anti-Constitutional Era"

Evening Address

By William Perry Pendley
President and Chief Executive Officer
Mountain States Legal Foundation
Lakewood, Colorado

Twentieth Anniversary Dinner
April 8, 2014
The Century House, Latham, N.Y.


About a month ago today I was rushing to a meeting in Denver and I did that thing that my wife hates for me to do — I turned on my BlackBerry and began to look at my messages. And I saw a message from a reporter, a guy named Jeremy Jacobs with Greenwire, and Jeremy's message said, "Call me right away. I have to talk to you." So, I pressed the link and got him on the phone and he said, "Well, what do you think?" And I said, "Think about what?" And he said, "The court's ruling today." It was the tenth of March so I didn't know about it and, sure enough, the Supreme Court that very morning had issued a ruling. The ruling of the United States Supreme Court was in our favor in a case called Marvin M. Brandt Revocable Trust v. United States.

It's a great victory. It was an eight to one victory. It should have been an unanimous victory. Unfortunately, that wise Latina, Justice Sotomayor decided to file a dissenting opinion that read something like this: "Trails are good. People like trails, and that's good. But if this guy wins today in this opinion by the court then the United States government will have to pay hundreds of millions of dollars to acquire private property for trails, and that's bad." That's a laughable and ludicrous opinion.

And I want to tell you a little bit about the case simply because it's been portrayed as a "rails to trails" case. I think reporters simply say, "Well, what is this all about?" and if you read Linda Greenhouse's article in The New York Times — and she got it totally wrong as she usually does — she said, "Oh, it's a 'rails to trails' case." And she said it goes all the way back to the 1980's when these right-wing groups like Mountain States Legal Foundation challenged the seizure of private property to create trails and lost. So that's what it's all about. It's about the 1980's and the return to those bad old days for private property owners.

But in fact the case went all the way back not to 1980 as Linda Greenhouse so breathlessly announced but all the way back to 1880, 1880 and a statute adopted by Congress in 1875 — the Railroad Right-of-way Act. And what Congress did it was a reform legislation. It said, "From now on we're not going to give railroads every other section as they cross the country. We're going to give discrete 200-foot corridors for railroads to pass through. We're going to give them in the nature of an easement and when the railroads go away, if they ever do go away, that property will revert to the underlying landowner." And those are concepts well known. It was well known in 1875, and I contend it was well known in 2006 when the U.S. Forest Service decided in a little place called Foxpark, Wyoming, west of Laramie, Wyoming to seize private property and create a trail for bikers.

Now, I want to give you a little bit of the location. We're at 9,000 feet elevation. When you get above 8,000 feet you're susceptible to altitude sickness. But at 9,000 feet they put this trail in there and this is an area that's covered by snow from about late October until early in June and it's also a pine forest. And you know what happens with a pine forest when you stop using various parts of it — the trees come back. And so this trail that the government thought a hundred and twenty thousand people a year would use is filled with spikes and is essentially non-used. In fact our clients said over the years that the trail was in place, he probably saw ten bikers — bicyclists — on the trail and most of the time it's horseback riders, ATV's users, or motorcyclists.

So the case really is about the lawlessness of government. And I'd like to say that during Republican administrations that our client faired better but unfortunately this case began in a Republican administration. It began during the administration of George W. Bush. It continued through the administration of President Obama. It began with a U.S. Attorney in the state of Wyoming who happens to be a friend of mine who's a Republican. And what the Forest Service said to our client Marvin Brandt in 2006 when he objected and pointed out the state of the law, and pointed out the fact for about one hundred and thirty years Congress, the Executive, and the Supreme Court of the United States had been of one accord on this issue, the Forest Service said to him, "We don't care. You've got this land but we want it and we're going to take it. And we're going to take it all the way to the Supreme Court of the United States, if we have to, to get a ruling in our favor to allow us to do this all across the country." Well, on the tenth of March of this year it was our client, Marvin Brandt, who came out of that courthouse victorious when the Supreme Court announced the eight-to-one decision.

Now, if you pay attention to the oral arguments on the fourteenth of January and, by the way, I think the ruling in this case is one of the fastest I've ever seen. We argued on the fourteenth of January. I was at counsel's table. It was argued by Steve Lechner, our chief legal officer. But it was argued on the fourteenth of January, decided on the tenth of March and during the argument both Justice Breyer and Justice Kagan, no traditional friends of ours or, I think, property rights, were very strong in their condemnation of the position taken by the United States government. As Justice Breyer said, "No attorney worth his salt will conclude other than that our client receive the railroad right-of-way when the railroad went away." Justice Kagan said, "It's a mystery to me why anybody would think that he didn't get the whole ball of wax" — meaning the former railroad right-of-way.

So, it was lawlessness on the part of the government. It was a planned lawlessness that the federal government said, "We don't care what the law is. We're going to change the law." And the major sticking point for the federal government was that this issue had come before the Supreme Court in 1942. In 1942 the Supreme Court was asked to decide the question that we took to the court again this year. And in 1942 the Supreme Court unanimously ruled in favor of the United States that it was an easement and not some special fee that the federal government could seize and take back. And so, when the federal government came before the Supreme Court on the fourteenth of January, this year, the Solicitor General's representative got two sentences into his opening argument and Justice Alito interrupted and said, "Counsel, I think you deserve an award for audaciousness when you say that Marvin Brandt can draw some support from the brief you filed in 1942." So I thought we saw the writing on the wall in that case. I want to pay tribute to our client, Marvin Brandt. You people who defend property rights know how much courage it does take to go up against the United States government, to go up against the biggest law firm in the world — the Justice Department — and to ultimately prevail.

I got a call from a reporter who said, "Well, what's Marvin Brandt want to do with this property?" I said, "He didn't want to do anything with his property. He just wants it for himself." "Well, why does he object to bikers?" "Because," I said, "It's not their land. He owns it." This is a hard concept for people to understand.

Well, we live today in very challenging times. As a lawyer, of course, I'm a bit of a historian. I've followed these issues. I've written about them and I've written most recently about President Reagan and the uniqueness of his presidency. I was at a conference at the Heritage Foundation in New Orleans recently, and I heard a wonderful speaker, a man by the name of Jeremy Boreing, which is a wonderful name, Jeremy Boreing. And he's anything but boring. He's a very interesting conservative young man, movie producer, screenwriter, Evangelical, and also pastor of a church. If you have heard of that small group in Los Angeles of conservative filmmakers that wants to meet secretly and just recently got their 501(c)(4) so they could do so, Jeremy is one of the leaders of the group.

And one of the topics he addressed was the uniqueness of Reagan. And he said, "What modern historians tried to say about Reagan was, Reagan was successful because he was so nice. He was just nice." And whenever I hear something like that I just think he's just a nice old guy and that's why he was successful. In fact I'm having a debate right now with a professor who is doing a documentary on Ronald Reagan. And his documentary involves telling stories about Reagan's interaction with people. And the professor's thesis is that Ronald Reagan was successful because he got a sense of who people were. He sensed their emotions and their needs and he responded to them in that way. Who does that sound like? It sounds like Bill Clinton. Right? And to some members of the audience more than others, I think, it sounds like Bill Clinton.

But Reagan was popular and Regan was successful because he studied and knew what he was talking about. He was clear in his expression of his ideas and his beliefs and he was steadfast in his implementation of what he believed. Unlike most politicians he really did what he said.

But we live in challenging times, unlike those times. And I'll make comparisons about them in a minute but we live in a time of the most lawless administration in the history of the Republic. The most lawless administration in the history of the Republic. I think we need to recognize that. The most lawless administration in the history of the Republic and that's just not me talking. Last December, the U.S. House of Representatives Committee on the Judiciary had a hearing. They brought in four professors — two conservatives and two liberals — four law professors. I don't know how they found the conservatives. But they brought them in and, to the professor, the professors contended that we live in dangerous times with the President misbehaving as he is.

Congressman Tom Cotton who represents the 4th Congressional District of Arkansas, and I hope next January will represent all of Arkansas as a U.S. senator instead of Mark Pryor, goes even further. He says that President Obama is not just unconstitutional in his behavior, he is anti-constitutional. Anti-constitutional. And he chose the word carefully because he simply believes that President Obama, by his nature, by what he believes, by what he says, by what he wrote or what some ghost writer wrote for him, is in opposition to the elements of the documents of our founding fathers. He does not faithfully execute the laws as the president is required to do. And from executive orders and tsars to unconstitutional recess appointments, from failing to implement and enforce laws that were passed, to making up laws out of whole cloth, and finally to going into the White House press room on an almost daily basis and rewriting federal laws and federal regulations just on a whim and a caprice.

As George Will said almost every day President Obama steps into the White House press room and announces that Obamacare provisions don't really apply. The regulations don't say what they're required to say. And I must say it's positively Orwellian. It's Nixonian or even Saul Alinsky-ish in the approach Obama has to the federal government and his obligations. It really is a Bizarro World in which we live. And I think it goes much further than this. It's just not the President, it's throughout his administration.

I worked for a president and I know the way policy is sought to be implemented through the various presidential appointees, the cabinet officers and the sub-cabinet officers, and I believe it goes obviously much further. It didn't start, it didn't stop with Benghazi and the State Department and notwithstanding what Secretary of State Hillary Clinton says, we do care, and we do need to know, and it does make a difference. As a Marine, I was told that we didn't leave people behind, we brought them out. And that's not the operative premise for Hillary. It didn't begin, it didn't end with the IRS and its refusal to authorize 501(c)(3)'s. And in fact, they turned around and targeted 501(c)(3) organizations for abuse from other federal agencies like OSHA (Occupational Safety and Health Administration) and others. And, of course, it didn't stop, it didn't start, with NSA (National Security Agency) and its surveillance of us. Did you hear the amazing story that Mark Steyn pointed out somewhat recently about the mistake that NSA made over telephone area codes. It got the telephone area code, for Washington, DC, which is 202 confused with Egypt which is 20 and improperly surveilled a bunch of people in Washington, DC when they thought they were doing Cairo. I would think they probably don't know the difference between Cairo, Egypt and Cairo, Illinois.

Let me give you some specific examples as well. We've got the Attorney General of the United States, often referred to as the most important, top law enforcement officer in the country. And it's a job most attorneys general take seriously. I'm afraid that Eric Holder does not. A friend of mine, Hans von Spakovsky with the Heritage Foundation has a new book coming out later this year along with John Fund called Obama's Enforcer and if it's anything like the other books John and Hans have written it's well worth reading.

Let me give you a couple of examples. The Supreme Court decided the Shelby County, Alabama case, (Shelby County, Alabama v. Holder). This was a case that involved the Voting Rights Act of 1964. You remember when the Voting Rights Act was passed. The Supreme Court said it was the most extreme reach of Congressional, Constitutional powers when the Congress passed the law and the President signed the law, the Supreme Court upheld the law that allowed the Attorney General of the United States to tell local jurisdictions in the South that before they could make a decision with regard to voting they had to come to the Attorney General of the United States and ask permission. So, before a local jurisdiction could move the voting poll from the fire station across the street to the elementary school they had to go to the Attorney General of the United States. And in 1965 we had to do that because the lawlessness that was underway in Jim Crow South. But 2006 is not 1965. And notwithstanding that difference, Congress pell-mell passed the law again and Shelby County, Alabama, which had changed markedly over the several decades came to the Supreme Court and said, "Does this law make sense today?" And the Supreme Court ruled five to four not surprisingly that it does not make sense and declared a portion of it unconstitutional. This deprived the Attorney General of the United States the power to go into local jurisdictions and prevent them from engaging in those activities that are traditionally those of local jurisdictions. What did Eric Holder do? He immediately sued Texas under a cockamamie scheme regarding the Voting Rights Act.

Let me mention another case. The issue of strict liability. Traditionally, under the law in this country we say you need two things. As Justice Jackson said famously decades ago, he said, "You need an evil-thinking mind and an evil-doing hand." If you don't have that evil-thinking mind, what the lawyers call mens rea, then you can't convict anybody of a crime. And notwithstanding that, Eric Holder has pushed the envelope on his efforts to make almost every crime a strict liability crime. Now, there are some strict liability crimes. Carrying a live hand grenade on the streets of Albany is a strict liability crime. If you are carrying a live hand grenade on the streets of Albany you can't say, "Oh, is that what that is? I thought it was a paperweight." That's so inherently dangerous we're not going to let you do it. But doing what Gibson Guitar did, for example, buying wood to put in its guitars from foreign exotic locations is not a strict liability crime. Nonetheless, if you followed what happened in The Wall Street Journal about Gibson Guitar and how they were raided by a SWAT team, a couple of SWAT teams, how their materials were seized by the federal government and held for ransom and unfortunately forcing Gibson Guitar to thus settle the case out of court.

Speaking about settling cases, the third phenomenon of Eric Holder is the sue and settle phenomenon where environmental groups, or left wing groups come in, sue the United States government and the United States quickly settles the lawsuit. And not just settles the lawsuit but settles the lawsuit under advantageous terms as far as that environmental or left wing group is concerned. And moreover, writes a big check for their legal fees. Thus emboldening them to file yet more lawsuits.

Let me speak for a while also about yet another agency beyond the Justice Department and that is the Environmental Protection Agency (EPA). Truly, if there is an agency in Washington without adult supervision, it is the EPA. And let me give you a couple of examples. An example I'm saddened to tell you, did not get Supreme Court review notwithstanding the amicae briefs filed by twenty-seven attorneys general. It is the case involving the Mingo Logan Mine in West Virginia. Now this is a mine seven years in preparation. They filed a permit. They got a permit from the Army Corpse of Engineers, as President Obama says. I take that "corpse" thing kind of personally, you know. And they got a permit after seven years and thousands of pages of paper. They prepared the environmental impact statement. It was the most studied coal mine in the history of the country. They got a permit. They were going to go forward when the Obama Administration came in and the EPA vetoed the permit given by the Army Corps of Engineers. Never in history has a permit issued by the Army Corps of Engineers been vetoed by the EPA. EPA claimed the authority to do it and unfortunately its position was upheld by the Supreme Court.

You remember "cap and trade?" Cap and trade was Obama's plan. We're going to force cap and trade to the Senate, to the House of Representatives, it's going to regulate us, regulate CO2, but the Senate refused to do it. Even when he had a lopsided majority in the United States Senate, the United States Senate refused to do it. And what did EPA do? EPA now is engaged in its "war on coal" by adopting these regulations to achieve cap and trade.

The third one I want to tell you about is kind of a weird one and it's kind of obscure and maybe you've heard of it? I hope you have with Fox News. But it's the decision by the EPA last December to designate a million acres in my home state of Wyoming as land within the Indian reservation. This is the Wind River Indian Reservation, home to the Arapaho and the Shoshone peoples and the town of Riverton is on the edge of that reservation. And back in 1895 there was an agreement made with the tribes. It was an agreement put in writing in 1904. It passed an act of Congress in 1905 and then subsequently the land was settled and became the town of Riverton, Wyoming. Well, a couple of years ago the Indian tribes went to the EPA and said, "We want jurisdiction over air quality." And so what the EPA said was, "Not only do you have jurisdiction over air quality but you now have jurisdiction over a million acres of Wyoming that includes the town of Riverton." I can't imagine anything more lawless than what EPA has done and a little surprised that Mountain States Legal Foundation filed a lawsuit.

I want to talk specifically and get into the weeds a little bit on some of these laws that are vexing us as much as they do. I want to talk about three specific ones. First: Endangered Species Act. Environmental groups refer to the Endangered Species Act as the pit bull of environmental laws. And they do so for a good reason. The reason is, unlike most federal statutes that involve some balancing, some decision making, some cost-benefit analysis, there is none with regard to the Endangered Species Act. As the Supreme Court said in its famous TVA v. Hill decision in 1982, "No one of a species may be allowed to go out of existence, regardless of the cost." Imagine that. Regardless of the cost. And that's why we have the mess we have today.

We were made three promises when the Endangered Species Act was passed into law. Number one: There would only be about a hundred of species on the list. Today there's two thousand and going north.

Number two: It would only take place on federal land. Only federal land would be involved and today we have species on private land from coast to coast, from California to Maryland, from Texas to the Canadian border, which leads many rural folks to the famous expression: "Shoot, shovel and shut up." That's not legal advice but... And a lot of people think that the Endangered Species Act as managed by the Fish and Wildlife Service is a scientific agency, that it's a scientific institution and nothing could be further from the truth. My good friend Dr. Rob Roy Ramey has pointed out that if the Fish and Wildlife Service used the same standard that it uses for deciding mouse species and populations to human beings there would be scores of distinct population segments and different kinds of species among us Homo Sapiens. The agency is the subject of group think and confirmation bias and a common desire for prestige and power and privilege. Do you know the Endangered Species Act is no longer the law of the land? It sunset in 1992. It was supposed to go out of existence and be re-authorized in 1992 but it's so controversial Congress refuses to re-authorize it. Instead it passes an annual appropriation to allow it to continue to be enforced. And enforced it is. And it's causing major, major, major headaches in the United States including here, of course, in New York.

The second statute I want to mention is the National Environmental Policy Act or NEPA. Now this is a very simple statute. The workshop equivalent of it is "measure twice, cut once." You'd think that's prudent, right? If you're going to do something, you want to make sure you've got it right. And instead the National Environmental Policy Act or NEPA is today the vehicle of choice for bureaucrats and liberal judges and radical organizations to shut down activity they don't like. All you have to think about is the Keystone XL Pipeline, for example.

And so what we have is slow-walking, endless talking, interminably blocking of all these projects that we'd like to go forward with. What was the first thing that the Congressional delegation from California demanded when the so-called stimulus was passed in 2009? Exempt us Californians from NEPA because we simply will not be able to go forward with these shovel-ready projects — even as laughable as that is — if we're not exempt from NEPA.

And Carol LaGrasse (a former speaker) alluded to yet another thing with regard to NEPA and that is the way environmental groups use it. And that came to a head here down near Erie in the Allegheny National Forest. It's a 500,000-acre forest. It's not like a Western forest. Most of the Western forests have always been in the public domain. But what happened in the Allegheny after 1920 was that the Forest Service went out and purchased private property to make a forest. But because they wanted the biggest forest they could have, they only bought the surface. They did not buy the mineral state. The oil, gas, and minerals were retained in private hands. Today in the Allegheny National Forest ninety-five percent of the oil and gas mineral rights beneath the Allegheny are in private hands. And under Pennsylvania law, under the laws of many jurisdictions, if someone wants access to his mineral estate he has the right to go on the surface estate and get it. Now, he's going to have to pay reparations if he does damage to the surface but the surface owner has no ability to say "no."

But what the Forest Service wanted to do was demand that these oil and gas mineral owners in the Allegheny go through the NEPA process. It was clearly illegal. Unfortunately the Forest Service agreed to make that demand of them and so Mountain States Legal Foundation represented PIOGA (Pennsylvania Independent Oil and Gas Association) and filed a lawsuit against the Obama Administration. It was the very first major lawsuit against the Obama Administration and I contend the most successful. We won a temporary restraining order in December of 2009. We've been upheld twice by the Third Circuit Court of Appeals in Philadelphia by six different judges. And the environmental groups have refused to appeal to the Supreme Court of the United States.

We talk a lot about this amazing thing happening in America, everywhere but New York, unfortunately, of the use of hydraulic fracturing. You know a story is headed in the wrong direction when the writer of the story says, "The controversial technology known as hydraulic fracturing." You know what my modifier is? The "six-decades-old" technology. The six-decades-old technology known as hydraulic fracturing, it could not be any less controversial. But nevertheless the environmentalists try to convince us that it's controversial. And the thing is it's amazing. Everywhere people have looked they've been able to find energy resources and develop them. Except on federal land. It's happening everywhere in the country on state and private lands but not on federal lands simply because of the opposition of environmental groups and the Obama Administration.

Let me give you an example. Most of the fields are gas-rich but some are oil-rich. The Bakken(1) is oil-rich. Eagle Ford in Texas is oil-rich. Now imagine this. Try and get your head around this. This is almost incomprehensible to me. If you took the Bakken and you took Eagle Ford and you added them together, doubled them and added a billion, that's still less than what's in the Monterey/Santos field in California. You'd probably say why haven't I heard about the Monterey/Santos field in California? Simply because it's federally owned. It's federal land and environmental groups have filed lawsuits, activist judges have stopped the development of the property, and the Obama Administration has pulled back and stopped the leasing. That's the kind of abuse that goes on today under NEPA and little wonder that we're having the problems that we're having.

The other statute I want to mention and mention quickly is the Clean Water Act. The Clean Water Act was passed so we'd have better water. Here, back in the day when Lake Erie caught on fire, it probably was not a good thing. Fish swam upside-down. Shouldn't do it, wouldn't be prudent. And so we have the Clean Water Act. And the Clean Water Act does not have the word "wetland" in it. I wrote a book, War on the West: Government Tyranny on America's Great Frontier in which I commented on the Clean Water Act and my editor struck out the phrase where I said, "The term 'wetland' is not defined in the act. Because you found it so incomprehensible that a term as commonly used by the government, the Corps of Engineers, and the EPA and other land management agencies, that the term 'wetland' would not be in statute." And it is not. It leaves the decision up to bureaucrats. Justice Potter Stewart several decades ago in a case involving pornography said famously, "I can't define it, but I know it when I see it." And that's the way wetlands are. It's totally up to the bureaucrats to decide what is a wetland and that's why you have the problems that you have.

We had a client several years ago who sought to use his property. The EPA came in and shut him down. He lived in a place called Hobbs, New Mexico. Anybody ever been near Hobbs on purpose? It's negative wet. They get about thirteen inches of precipitation a year. The evaporation rate is about 120 and he's got dry sinkholes all over his property and he wanted to dispose of waters produced in the oil and gas operation in these sinkholes. So he contacted the hydrologist and the hydrologist said, "Well, you've got about three hundred feet of impermeable clay beneath each of these sinkholes. You've got no ground water here and you're forty miles away from the nearest stream. Pretty safe to do what you're planning to do." And so, he commenced to do it and then (knock, knock, knock) got that famous knock on the door. As Reagan used to say, "The government come to help you." And the EPA concluded that he could no longer use his land because his dry sinkholes were waters of the United States, that is wetlands. You're probably wondering what was their theory. Here's their theory. Bear with me on this. Every one hundred or two hundred years it rains hard enough in the area that the water collects temporarily in these dry sinkholes. Bird flying over — birds engaged in interstate commerce — and see those sinkholes and they land in those sinkholes and magically convert those sinkholes into waters of the United States. That's the government's theory.

And so we went to Federal Court challenging that. The EPA came in and said, "Well, it's not really a final decision. You can't sue over it." Well, it was final for our client because our client was facing a $150.00 a day fine. And so we made that argument. The District Court rejected it. The Court of Appeals rejected it. We asked the Supreme Court to decide and the Supreme Court declined to grant to hear the case. Now if that sounds familiar to you, and it should, you're thinking about Mike and Chantell Sackett. Because Mike and Chantell Sackett of Priest Lake, Idaho, that happened to them. And fortunately for them, represented by Pacific Legal foundation, they made it all the way to the Supreme Court of the United States. And in an unanimous opinion, the Supreme Court said, "Of course, if the EPA comes onto your property and tells you you can't use it because it's wetland, you have the right to go to a judge and say, 'Judge, is it really? Does it meet the Constitutional, the statutory, and the regulatory test for being a wetland?'" Because before they could not. And do you know what the government's argument during that oral argument for the Sacketts was? The federal government said, "Well, Your Honors, the Sacketts can challenge our designation. All they have to do is violate our Cease and Desist order, get indicted criminally and on their way to the courthouse and jail stop by and say, 'Judge, is it really?'" The Supreme Court unanimously rejected that theory in a marvelous decision by Justice Scalia and in a concurring opinion by Justice Alito. Justice Alito did a shout-out across the street to the Congress, essentially telling Congress, "Do your job. You want to declare a wetland, declare a wetland. Do not leave it up to these bureaucrats to do this."

I hope you saw over the weekend or last week the announcement by the EPA about brand new regulations out on seizing private property. There was a big Fox News article involving a man in Wyoming whose pond on his private property was designated "waters of the United States" by the EPA. He was told he was going to go to jail because he'd actually built a pond and wanted fish in it. So there's a lawlessness going on all through this administration that should surprise no one that with the lawlessness emanating from Washington, D.C. That lawlessness is being continued by state and local governments and environmental groups all across the country. I commend this to your attention because it's so close to home. I refer, of course, to Gov. Cuomo's behavior regarding the simple issue of your ability to use your land. I don't need to tell you the mischief that's going on. We are privileged to represent 70,000 of your friends and neighbors in court seeking three simple things.

One: Finish the job that was begun some six years ago. Get that final environmental impact statement out. The second thing is we want full transparency. We want to see what Gov. Cuomo's been telling his agencies. We think we ought to have some transparency on that. And finally, we contend the Department of Health should never been involved in this process. It's totally beyond its jurisdiction. And that's our simple, straightforward argument.

I want to give you another example to let you know that you're not alone. We also represent landowners in a little wide spot in the road called Mora County, New Mexico. Mora County has traditionally not been thought of a scenario where there's oil and gas potential but with all the changes in hydraulic fracturing more recently, all of a sudden it looks like it might really be an area where we could produce some very serious natural gas. And there is no more important industry to the state of New Mexico than the oil and gas industry. It employs more than anybody else and contributes significantly to the state's economy. Unfortunately, Mora County fell under the sway of a left-wing organization out of Pennsylvania called the Community Environmental Legal Defense Fund, an organization supported by Teresa Heinz Kerry that takes a very strange view of private property rights and especially a very odd view with regard to the ability of corporations to go into court and defend the interest of their shareholders. And so Mora County passed an ordinance written by this outfit out of Pennsylvania that declares corporate entities to be persona non grata in Mora County. It also says there'll be no hydraulic fracturing in Mora County and finally, there'll be, in fact, no oil and gas drilling whatsoever in Mora County. And on behalf of three Mora County private property owners and the Independent Petroleum Association of New Mexico we filed a lawsuit last November.

I wish I could tell you that Mora County is an outlier. Unfortunately, 149 other local jurisdictions have passed a similar ordinance, including Pittsburgh, Pennsylvania. And this is the nonsense that is out there. We sued simply because we were afraid that major oil and gas companies would not challenge this activity and we had to challenge on the fact on behalf of the private property owners. I will tell you in my experience working on these issues from some three decades that typically when the going gets tough the corporations move on down the road because there's always some other place to drill, some other place to mine, some other place to cut logs. And left behind are the people who desperately need those economic activities for their own well-being, to maintain their hospitals and their schools.

So, the question becomes in light of all this lawlessness that's going on and the challenges to our Constitutional republic, what would Reagan do? Fortunately, we have the answer because I wrote a book about it. And, you know, you don't really realize books are made from trees until you try to throw thirty of them in the overhead compartment. So, I hope you'll take some off my hands. Let me tell you…

Audience member: Is that book for sale?

Mr. Pendley: It absolutely is. Thank you, sir. Your check's in the mail. Let me tell you why I wrote this book. I was privileged to work in the Reagan Administration. I've worked on Capitol Hill. I've worked on the House side. I've worked on the Senate side and I got a call to come down and work for the Reagan Administration. I was honored to do it. I had the great privilege of working on policies that I cared a lot about and I made some changes that are still in place and, unfortunately, some changes that got overturned. And I wrote this for several reasons. Number one: This issue of energy, the environment, and natural resources was hugely important to Ronald Reagan. But why was it so important? Well, first of all, he'd been governor of California and, you know, when we think about California, what do you think about? You know, the City by the Bay, Hollywood, maybe Napa Valley if you're a wine drinker, but the fact of the matter is that half of California is owned by the federal government. It's a public land state just as my home state of Wyoming is a public land state. And so, Ronald Reagan is governor of California. He had experience dealing with the federal government. Not just when he wears the hat of the sovereign, but when he wears the hat of a neighbor, of a landowner. And, in fact, all too often the federal government was a bad neighbor.

The second thing that happened is Ronald Reagan prepared to be president in a very unusual fashion. He had the opportunity to go back to television. You know, he'd been in television a lot before he was governor and he was given an invitation to appear on the Walter Cronkite Show a couple of times a week where he would appear opposed to some commun… some liberal and he concluded, "People will get tired of me on television but they'll never get tired of me on the radio." And so, he commenced to do a weekly radio address, a tradition that he continued when he was President of the United States that's still being continued by presidents today. And Reagan hand wrote out and researched every one of his radio addresses.

There's two wonderful books I commend to your attention. One called Reagan, In His Own Hand and Reagan's Path to Victory which have these wonderful, wonderful addresses that Reagan wrote. And a vast majority of them dealt with energy, environmental and natural resource issues, and environmentalists. And why was that? Well, think about the times. In those times we were challenged by the Middle East, the energy hammerlock they had us in. We were facing the problem with the big ugly bear, the Soviet Union, and we had a terrible economy. And Reagan's philosophy was, the way to solve all three problems is to develop our own energy. He knew that a third of the country is owned by the federal government. He said, "We own a billion acres on the outer continental shelf. We need to develop those resources." And in his acceptance speech at the Republican convention in 1980 he did a shout-out to Jimmy Carter. And he said, "President Carter, what are you afraid of? Why are you afraid of drilling? Do you think you'll make a discovery?" And sure enough, it was true.

And the final thing about Ronald Reagan was after he became president, you know, these presidents, they come in and they hear the siren song of foreign affairs. They stop watching the domestic issues. That never happened to Ronald Reagan. He picked three Secretaries of the Interior he knew would implement his policies. He backed them relentlessly. And whenever there came a need that something got really controversial Ronald Reagan sat down and wrote a weekly radio address on the issue of his government's policies with regard to the environment, natural resources and energy issues and he'd deliver those addresses. So that story of Reagan has never been told. It was tremendously important to him. I thought my old friend Jim Watt,(2) whom I worked with, would write it. I thought Don Hodel,(3) whom I worked with would write it. I thought my good friend Jim, Judge Clarke,(4) would write it, but he passed away last year. It never got written. And so it fell to me to write the book.

The second reason I wrote the book was because of the environmental groups. And they continue to lie about Ronald Reagan. Remember when George W. Bush appointed my good friend Gale Norton(5) to be Secretary of the Interior. Do you remember what the environmental groups said of her, "Jim Watt in a skirt." See, because the environmental groups figured they had so destroyed Reagan's credibility on environmental issues that all they had to do with regard to George W. Bush and his appointees was say, "Well, they're just like Reagan and Watt." And I wanted to point out the truth. And there are three lessons and I hope you'll still buy the book even though I'm giving you some of the lessons but there are three lessons regarding environmentalists that you need to know.

Number one: They're not concerned about humans. They're not concerned about humans. Now, this wasn't the way it started. Environmental groups back in the 1800's, in the early 1900's, they were passionate about human need, but human need for different things. The preservationists, the ones who wanted the national parks to be just like they always were, to go see and to visit, the preservationists, guys like John Muir, their passion was humans' need for spiritual, emotional, and psychological restoration by going to these wonderful places. The conservationists, people like Gifford Pinchot, who established the National Forest system, they were equally passionate about human need, the human need for food and fiber and water. And the clash that happened with the environmental groups happened over the Hetch Hetchy in California when the battle was whether or not the people of San Francisco needed that valley left untouched so they could go there for spiritual restoration or they needed that valley flooded with water so they could provide for their needs for food, fiber, and water.

By the 1970's, however, what happened was the environmental groups were no longer concerned about human need. It wasn't about human need for food and fiber and water. And it wasn't about human need for spiritual, emotional, and psychological restoration, it was about Gaia. It was about the planet. And what were the environmentalists saying? They were saying, "Mankind is a cancer on the planet." I used to think the worst thing Yoko Ono ever did was destroy the Beatles. Now, I will tell you I was a Johnny Cash, Roy Orbison and Marty Robbins kind of guy and I guess I couldn't have cared what happened to the Beatles. But that's what I thought until I saw what Yoko Ono was doing here in New York. Condemning the people of Upstate New York to poverty simply because of her misplaced views.

The second thing you need to understand about the environmentalists today — and it happened with Reagan — environmental groups today are an arm of the Democratic Party. Now, this happened with Reagan when Reagan ran for office they knew the environmentalists lied about Reagan. They said, "Oh, we didn't know what he was going to do. His record was well established. And they went out and they endorsed Jimmy Carter. They excoriated Ronald Reagan and they've been tools, arms of the Democratic Party ever since. John O'Sullivan, the former editor of the National Review once said, "Any organization not avowedly conservative becomes more liberal over time."(6)

And the third thing that I need to point out is environmental groups don't care about the facts. They simply do not care about the facts. And we need to understand that. It's all about emotions. And you know famously the Gasland story. The guy who did the Gasland movie was approached by filmmakers who knew that water has burned for centuries in North America and asked him, "Why didn't you put that in your movie?" And he said, "It wasn't relevant." Well, of course, it's not relevant, he's trying to tell us that hydraulic fracturing is dangerous.

And the third reason I wrote the book was because of Barack Obama. I got tired of hearing Barack Obama evoke the name of Ronald Reagan and claim that he's an inheritor of Reagan's legacy and that he's doing things that Ronald Reagan would do. Nothing could be further from the truth. And so, what I did with every chapter, when I get to the end of the chapter then I'd say, "What happened after Reagan left? And what's Obama up to?" And it's not a pretty picture.

And so, I tell you it's an inspiring story because it relates to what we're going through today and nothing could be more illustrative of what's going on in Europe with Putin. Reagan would understand all of that. And Reagan would understand hydraulic fracturing. What Reagan said was the oil and gas industry is not a monopoly. That the discoveries are being made by the independents not by the majors. And you're seeing that happening in Pennsylvania. And number three: The discoveries will be made by unconventional technologies.

Well, I'm a lawyer, I could talk all day about this but let me close because I've been asked me to answer questions and I'd love to answer questions.

When I got to the Department of the Interior under Ronald Reagan there was something on my desk. It was an EIS (Environmental Impact Statement) or more formally an Environmental Assessment done with regard to a proposal to drill an oil and gas well south of Jackson, Wyoming. Now the great thing, as many of my friends say, about Jackson… How many have been to Jackson? All right. Well. OK. You couldn't find a prettier place and the great thing about it is it's so close to Wyoming, if you get my meaning. And so the proposal in this EA that was on my desk was to drill an oil and gas well, primarily a gas well, south of Jackson. And I thought that was super. I thought that was super because I knew the people of Jackson were using propane to heat their homes. And I knew that propane was brought in on dangerous two-lane roads. They were also using hydroelectric power to heat their homes and I thought wouldn't it be great if we made a major gas discovery in what's called the overthrust belt that runs through that area.

And so I went to my boss, Jim Watt, and I said, "Jim, I'm going to sign off on this. This looks great to me." And he said, "You'd better go up and see the Wyoming Congressional delegation." So I said, "All right. I'll go see them." And I knew all those guys. Senator Malcolm Wallop, hero to many of us, Senator Alan Simpson and my good friend Congressman Dick Cheney. And so, I went up the Hill and met with them and Malcolm was there. The other two members sent staff people. And I had my wonderful U.S. Geological Survey charts up and I was showing them where we're going to do this and how a road would go in. I got done with my explanation and Malcolm said, "Perry, I'm already getting calls from oil company executives in Casper in opposition to this." And the previous year there'd been a very interesting battle over much the same issue. And there was an issue involving the Bob Marshall Wilderness Area in Montana. And what was at issue in the Bob Marshall Wilderness Area in Montana was we could still go in and do seismic work in there and the oil and gas industry wanted to go in the middle of winter when the ground was frozen solid and there was an eight-foot layer of snow on the ground, go in and do their thumping exercises and see if there's something there. And, of course, reminiscent of Reagan's comment to Jimmy Carter, "What do you do? You're afraid you're going to find something?"

The environmentalists had a fit and because they didn't want to find something there. They don't want us to drill there. And so I threw that back at Malcolm. And I said, "Well, Senator, how did those oil executives feel about doing the seismic work in the Bob Marshall Wilderness last year?" And he said, "Perry, they don't have summer homes in the Bob Marshall Wilderness Area." By implication, of course, they had the summer homes up in Jackson. So, before I got back to my office Jim Watt had received a phone call from Wallop, Simpson, and Cheney and they all told him that he couldn't let Perry drill. "Stop that crazy man."

A few days later Jim Watt was walking at the White House and Jim Baker, Chief of Staff, came along side. Jim Baker had just come back from a fishing trip with Dick Cheney and Dick Cheney had bent his ear about an issue, what's called the Cache Creek Drill Project, and Jim Baker said, "Well, Jim Watt, what are you going to do about this?" And Watt said, "Well, I guess I have to tell him 'no.'" And Baker said, "You'd better go see the boss. If you're going to say 'no,' you'd better go see the boss." And so Watt went in to see Ronald Reagan and Reagan asked what it was about. And Jim told him what it was about and Reagan said, "Look, the people who oppose us on this are always going to oppose us. We can never do anything that will please them. We've got to do the right thing." And then he concluded, for the first time to my knowledge, with an expression that became a famous comment by Ronald Reagan, and in fact he put it in his second inaugural address. And what he said was, as I tell my cabinet officers and staff all the time, "Jim, if not you, who? If not now, when?" And Jim Watt was incredibly inspired by that comment from the President and he said, "Well, Mr. President, since you're feeling so magnanimous about giving advice, I've got a few other issues I'd like to talk to you about." And a meeting that was suppose to take ten minutes took forty-five minutes. And as I say in my book, and as Jim Watt told me, he says, "I walked out if the meeting with a stainless steel backbone." Stainless steel backbone. And that's the nature, that's the nature of the man that was Ronald Reagan. He knew what he believed. He said what he believed and he did what he believed. He was unwavering in doing that. And I believe that is something that we must follow and I know the challenges are difficult. And no one knows that more than you in this room who fought on these issues for twenty years against all incredible opposition and you know that "if not us, who, and if not now, when" and that should be our guiding principle.

I thank you for coming out tonight.

Notes:
1. The Bakken Formation is in western North Dakota, northeastern Montana and Saskatchewan
2. James G. Watt was President Reagan's first Secretary of the Interior from January 23, 1981 until November 8, 1983
3. Don Hodel was Secretary of Energy from 1982 to 1985, and the Secretary of the Interior from 1985 to 1989 under President Reagan
4. William Patrick Clark, Jr. was a judge, and public servant who served under Reagan from 1981 to 1982, National Security Advisor from 1982 to 1983, and the Secretary of the Interior from 1983 to 1985
5. Gale Ann Norton served as the 48th United States Secretary of the Interior from 2001 to 2006
6. O'Sullivan's First Law: "All organizations that are not actually right-wing will over time become left-wing."

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