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tv   Politics and Public Policy Today  CSPAN  January 29, 2016 11:00am-1:01pm EST

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i think the best you can do is carve out and be intentional about how much time and resources you're going to put into that. i don't think you can ignore them. but you also cannot lose sight of -- seems like you're in a great opportunity for growth now, so you can't lose sight of your core mission and focus. because the businesses that fail at that juncture is because you're just too all over the place. >> i would add, our investment is now 200 people and going from 5 to 200 people, you need to make sure that you pick one partner, two partners, max. and then focus, you know, almost obsessively, we call it maniacal focus and make a really big impact. because trying to have ten partnerships that are running you all over the place that get you nowhere, your core business can't possibly run, much less you're not taking a step forward. it's a great question. it's a really hard one, it doesn't go away.
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but maniacal focus. and the last thing i'll add for entrepreneurs and people in tech and trying to do really hard things, sometimes i think up with -- one of the best things, getting one or two people moving forward, they'll tell you the tough stuff you have to do to get better. give it to me straight, tell me the hard news. don't tell me everything's great. and being less defensive about taking really good feedback has helped me move myself forward as a leader, my business forward. but surrounding yourself with people that are much smarter, and help you evolve your thinking and help evolve all of us trying to do tough things. being an entrepreneur is, i think, as you said beautifully back there. you need tough skin, you need resilience, and i think you need to fight every day. so, good question. >> i want to ask our panelists for brief, closing thoughts either with the conversation or anything they want to leave all of us with as food for thought. so, rachel, you can also feel
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free to use your minute to respond to the last conversation. >> all i was going to say, is decision fatigue is real. it's something i've noticed in my life since every decision i have to make about my daughter seems so weighty and huge. so if you can out-source some of your decision-making, you don't have to review every single one of the 3,000 e-mails in your inbox. i know you want to, but in order to move forward, we have to allow yourself to get away from the feeling that we have to make all the decisions all the time. but more generally, we're talking about how to, you know, how to lift up women leaders in technology and it's -- so i think it's not about -- only about like taking the advice, how can i make myself more of a leader, what can i do for myself? if i leave you with one thing, i really want to leave you with the notion that the rising tide really does lift all boats. so if your mission is not only
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to lift yourself up, but if it's to lift the community up, and the community of women up, amplify the women around you, support them, and start twitter fights with conferences that only have line-ups with all white dudes. all of that. that's important. it's making a difference and i really want to just leave you guys with that -- you ladies with that. >> i think we all know that we don't live in a colorless, genderless society. i think that each of us have a role to play in leveling -- in creating more equality and more equity and more opportunity for women, for people of color, for women of color, and i think you have to be a little bit intentional about creating -- carving out a space for what is your own personal impact going to be. not everyone can create a fabulous network of women that's going to rise the tide for all of us.
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but we all have a role to play, even in our own daily lives. it might just be you bringing one or two more people into this conversation. having a conversation with a male colleague. having a conversation with an investor or with your boss or with an employee. you know, i think the conversation has to get bigger, it has to include not just people who look like us. it has to include people who don't even know this is an issue. and i think that as a very minimum, each of us knows someone who probably has no idea that this is all going on and that is a struggle. so i would say at the very least, we each have a role to play in our daily lives, in bringing more people to the table. >> alexa? >> and so having been one of the people in the audience on so many different occasions listening to a panel like this, one thing that has been tremendous to helping me in my own career was that the big gap is acknowledged. it's belief in guts. it's having the belief in yourself and the guts to take
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the jump. so i'll share with you one thing has changed my life. when i was an undergrad, i worked in the happiness lab -- i won't go there, but it was an interesting experience for me. but we took people who were 90 and had to look back at their life, and they never regretted the person they dated, x, y and z. what they always regretted were the things they didn't do. they were, like, i really wish i had the guts to do this one thing. what i've imparted on myself since going through that is little 9-year-old alexa sits on my shoulder. and i'm like, alexa, when you're 90, and you look back, are you going to regret this? and if the answer is yes, and this is the most amazing time for innovation, i don't think we've seen a decade like this, put your 9-year-old self on your shoulder, do write the plan, you can't jump off the cliff with no parachute, write the plan, have belief and knowledge and then have belief and gults. >> andrew?
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>> my advice is to never let a guy have the last word. [ laughter ] so i'm going to follow -- i'm going to give the remainder of my time to our esteemed moderator. >> thank you, andrew. yes, thank you. your daughters are very lucky to have you. [ laughter ] i want to thank all of you for joining us today. i want to thank joyce for hosting us this afternoon and to thank our panelists for being so remarkably candid, but also clear in their candor and in their advice. in the next months you might say their relationship developed quickly but as hanna said, quote, in the navy it's kind of accelerated. while it is important that we continue to celebrate success
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and to share what has worked for each of us it's also important that we continue to recognize the magnitude and the contours of the challenges we face. there is so much else we could have talked about today. we could have talked about the fact that the united states is one of nine countries in the world that don't have paid timeoff for new infants. we could have talked about our wage gap or any country's wage gap, because even in the celebrated scandinavian countries women do not earn the same as men. and because we at the clinton foundation care so much that each of us is armed with whatever information, we launched the full ceilings of the report that andrew was kind enough to reference, as was joyce, where we brought together the largest aggregation ever on the status of race and opportunities for girls and women here in the u.s. and around the world. we hope you'll go to you can search by your own country if you're not american and kind of find out what is really true and not yet true for
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girls and women in your country. you can search by issue area. we brought that for cocktail hour. hopefully it helps each of you bring others into this conversation because until this is something we're all talking about we won't be able to stop asking questions like the ones that kia and alexa unfortunately received. so helping us move forward is something we all have a vested interest in, and we're so grateful that all of you could join all of us here today. thank you very much. three live road to the white house events all from iowa are coming up this afternoon on the c-span networks. starting at 12:30 p.m. with new jersey governor chris krchristi. he holds a town hall-style event
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in iowa, speaking with area residents of a local brewery. c-span2 will have live coverage. former florida governor jeb bush is in carol, iowa, to meet with voters. the town is located northwest of des moines. and ben carson will meet with voters in iowa city at the university of iowa. he'll be joined by senator chuck grassley, and that's scheduled to start live 3:00 p.m. eastern on c-span2. c-span campaign 2016 is taking you on the road to the white house for the iowa caucuses. monday, february 1st, our live coverage begins at 7:00 p.m. eastern on both c-span and c-span2. we'll bring you live precaucus coverage, taking your phone calls, tweets, and texts. then at 8:00 p.m. eastern we'll take you to a republican caucus on c-span and a democratic caucus on c-span2. see the event live in its entirety.
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be sure to stay with c-span and join in on the conversation on c-span radio and at the state department today will release roughly 2,000 pages of hillary clinton's e-mails but will delay the final batch of messages until after voters go to the polls in early primary states. in a court filing late on thursday evening, the department insisted that it regrets its inability to publish the final 7,000 pages on friday as a federal court ordered it to do last year. according to the department, it simply, quote, missed sending roughly 7,000 pages of e-mails to other agencies and did not notice the oversight until earlier this month. its efforts to correct the problem were further delayed by the snowstorm which closed the federal government through wednesday. now, a discussion about federal land management in western states and the potential
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for the transfer of control of those lands back to the states. it's hosted by the heritage foundation. >> thank you very much, john, and let me add my words of welcome to the group we have here today on behalf of the heritage foundation. you know, the heritage foundation is an organization, a research and education organization that finds its policy roots in the constitution of the united states of america. and i think that's a very important point when it comes to having a discussion such as the one we're going to have today. we think that if you're an originalist, that you don't look to prior court decisions, you look to the constitution. what does the constitution say on how we should behave and act in this country today. we have a great conversation we're going to have today. it's one that we need to have more often these days given the
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challenges that we're facing and given the opportunities that we have. it's certainly a particularly timely and it's my privilege to introduce the person who's going to moderate the discussion today, stan rasmussen from the southerland foundation. stan and i met not only through heritage activities but because southerland has been very active in the policy and discussions and legal background and work done on this very important issue of who should be in charge of the lands in the several states. the southerland institute has hosted a number of conferences on this and also done a lot of the support of the legal work. it also is the face of the battle these days, ken ivy, who is also with us. but stan directs the southerland institute's legislative efforts on utah's capitol hill and
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coordina coordinate's the institute's interactions with the governor's office and other state and local leaders. he has a tall order today because we have a whole table full of wonder. speakers, but let me introduce stan, who will take over from here and introduce our various speakers and then make sure we have a robust discussion. stan rasmussen, welcome to the heritage foundation. ha hair. >> a sincere thanks to john and becky and your heritage foundation colleagues for welcoming us here today and for hoesing this important and timely discussion as you mentioned. america is a land of promise. the american promise exerts the government exists to secure equal opportunity, fundamental fairness, and the inalienable rights of freedom, the right and control of property and the right of individuals to determine their own destiny. to protect life and liberty but to take away the right and control of property, which is
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the fruit and back of that liberty, is to shatter this promise, leaving states and their peoples as second-class citizens. at this point in time in january 2016, the federal government still controls more than 50% of all the lands west of the rocky mountains but less than 5% of the lands east of this continental divide. this inequality and fundamental unfairness breeds political exploitation, harms the environment, depresses western communities, stifles national opportunity, and undermines our constitutional system where self-reliant states provide a double security to the rights of the people. our history attests that until we realign the american promise with the american promise, there will always be dissonance, discord, and frustration. the solution is for congress to transfer to willing states all multiple use of federal lands for more effective local care, management, and leadership.
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today, presenting overviews of the legal, environmental, economic, and tax impacts of this inequality and fundamental unfairness, we'll will hearing from dr. robert untilson, matthew zers, professor ronald rotunda, and from mr. george wentz. speaker of the utah house of representatives gregory hughes will then describe efforts undertaken to date and the remaining necessary work to be done to redress these harms. following speaker hughes, we will take a few minutes for question and answer for those of you who are with us here in allison auditorium. we'll first look at the environmental elements. the federal lands bureaucracy has a long-standing pattern of prioritizing policy over people. as is particularly evident in the state of utah and throughout west. among the most articulate and persistent voices addresses these issues is dr. robert h. nelson, professor of environmental policy in the school of public policy at the university of maryland.
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professor nelson. >> well, i'm pleased to be here. this is an important meeting and seems as though we might be on the verge or hopefully on the verge of some, you know, major new developments on the public lands. i'm going to talk actually more about history than economics even though i'm an economist by training. but i've long had the view that historical perspective is critical to public policymaking. so i'll start with a little personal history and then present some -- a broad picture of overall public lands history. it will have to be very broad given the amount of time i have. anyway, i came to the interior department as a young staff economist in the office of the secretary of interior in 1975.
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and one of my first assignments was to study the field and grazing program. and not having been raised in the rural west, i was surprised to discover that the federal government was deciding the specific pastures where cattle should graze in various specific months of the year over tens of millions of federal acres in the west. as i thought -- as it struck me, it hardly looked like a federal question. i was wondering what we were doing. and then later i looked into another thing that influenced my thinking was the financial aspects of western public land management. i looked at the grazing program -- grazing fees were bringing in about $15 million a year while the cost in the grazing program easily exceeded $100 million a year. this was symptomatic of the whole federal land presence in the west. so by the early 1980s, i was
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arguing still in the interior department, and a surprising number of my economist colleagues even in the interior department agreed with me that we should simply get rid of much of the federal lands in the west, not the national parks but the vast areas of what you might call ordinary public lands or multiple use public lands. since public recreation was the most valuable use of these lands, i proposed to give them away to the states -- this was in the early 1980s -- where easy public access could be maintained. privatization, i came to understand, was a sure loser. at that time westerners complained that saudi sheikhs, then rolling in money, would become their new land lords. and so i was encouraged when ronald reagan declared that he was a sagebrush rebel in 1980. this is when i started learning,
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however, that things could be complicated. i did not interact much personally with james what, but the head of my office did. and so i had access in that way to watt himself. but to my surprise, watt was not interested. he said, based on his information, that the states did not really want the lands. they were concerned that the management costs would be too high, and so the land transfer ideas and privatization proposals of the early 1980s went nowhere. so i decided to take a longer strategy of thinking and writing about the future of the public lands. if any major public land reform was going to happen, a lot more public knowledge and understanding apparently would be necessary. plaublic land i've been workingn this project more than 30 years
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including three books, one in 2000 with the title "a burning issue: a case for abolishing the u.s. forest service." and by then i had moved to the school of public policy at the university of maryland where i'm still based today. besides the books, 20 or 30 articles and other publications, over 30 years are posted at my school website. i would also like to say the recent developments in the west -- this goes back to the old fiscal impact issue of the 1980s -- had brought me back to the old question, the fiscal impacts on the federal government and the states are transferring much of the ordinary public lands to the western states. fortunately, the state of utah issued a 732-page report in november 2014 that made it possible to answer this question with a brand-new degree of
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accuracy. at least for utah. the bottom line is that -- and despite the arguments and even the fears of many people -- assuming all the federal mineral rights are transferred to utah but the federal government continues to pay for wildfire suppression and protection, the fiscal impacts come close to a wash. about a plus $20 million from a comprehensive land transfer for the federal government and a minus $20 million for utah. so there are no major financial obstacles to a comprehensive land transfer. and i think this is a very important point to make clear in the continuing public debate. so the question of federal lands really comes down then to a basic question of american federalism. and i think the answer is pretty
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obvious that the federal government owning 66% of utah is not exactly compatible with traditional american federalism thinking. so i'm going to turn now to the broader issue of the history of the public lands. plands chi've spent a lot of time thinking and writing about in the last 40 years. on the whole i some time ago came to recognize that federal land management over the past 200 years has been a history of failure. the roots of that failure lie in american national ignorance of the real circumstances in the west. time and again, members of congress and the wider american public have projected utopian fantasies on the west and then enacted laws supposedly designed
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to realize these fantasies, then be left to westerners to try to find a way of living with these misguided laws. the first washington fantasy concerns the disposal of federal lands in the 19th century. officials wanted a publicly planned, orderly process of land settlement. another key idea was that since the lands were federal property, their disposal should raise large revenues to fund the federal government. but even then washington was dysfunctional. it's not a new thing. and the whole federal officials were very slow to work out their plans and put them into action. at the same time, millions of americans, many recent immigrants wanted some land of their own. unwilling to wait for a cumbersome federal government to act, they simply moved on to the
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lands in large waves of occupancy. large parts of the midwest and the west in the united states were settled by squatters. congress would then engage in fierce debates about whether illegal acts should be rewarded by granting the squatters a retroactive property right. in the end, they always capitulated to the squatters. with the homestead act, congress effectively gave up. you might call it the legalized squatting act of 1862. but as has so often been the case, official washington got it wrong again. in the aftermath of the homestead act, settlement was moving into the arid wild areas of the west where 160 acres, which was the limitation in the homestead act, was altogether unworkable. westerners in the late 18th and
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early 20th century were left to develop new forms of the invasion of the federal land laws. the next great american utopian fantasy projected on the west was shaped by the progressive movement at the end of the 19th and early 20th century. its guiding theme was the scientific management of american society. displacing the crude interest group politics of the gilded era. a core idea was that american governments could be separated into two distinct domains, one of democratic politics to set the broad directions and another of expert implementation of the politically determined goals. american universities then were gearing up to provide the technical knowledge and professional personnel to put it into practice. the yale school of forestry, for example, was created in 1900 to supply the federal forest with the necessary forestry
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professionals. on the federal lands, all this meant an era of disposal and an arrival of a new era of progressive management. the forest service was created in 1905. the first wildlife refuge was established in 1903. the federal government ceased disposing of oil and gas and coal rights in 1910, and the park service was created in 1916. by the 1950s, however, leading american scholars were describing the progressive governing scheme as unworkable in practice. public land management as a leading example turned out not to be scientific management but political management. the leading land agencies sought to create appealing images designed to maximize their political support. smoky bear was a great public relations success, although prominent scientists even then
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were warning of the problems of total fire suppression. we're now dealing with the consequences, but the forest service itself, as always, finds a way to survive, now spending half its budget on wildlife suppression and prevention. by the 21st century, it was dawning on increasing numbers of americans that federal scientific management really meant dysfunctional management. until his recent grand treatise on the failures of american govern nance, political order and political decay, francis fukuyama offered the forest service as a leading case example. the most recent of the great public land fantasies took shape in the 1960s as reflected in the wilderness act of 1964. instead of the old progressive movement, we now saw the
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emergence of the environmental movement. the core idea was the pristine nature was being trampled by the american headline pursuit of industrialization and other forms of growth and economic progress. the resulting harms were seen as essentially a moral evil committed against nature itself. implicitly, a part of nature little touched by hume nl hand was a remaining part of god's creation. in disturbing the natural areas as environmentalists saw, human beings were stepping into the role of god. divine retribution typically in the form of an environmental calamity was sure to follow. it was all very biblical. a secular deuteronomy, you might say. secular environmental fundamentalism spread across the american society in the late
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20th century with the same power as christian fundamentalism. interestingly, they both agreed on one thing -- the god of economic progress as had won so many convert the 20th century, was a false god. the triumph of environmentalism was symbolized in the 1990s by a fundamental shift in the official management goal of the federal land agencies. for decades, reflecting progressive era thinking, the federal lands had been guided by the utilitarian goal of multiple use and sustained yield. from the 1990s, however, the new purpose would be ecosystem management focused on new objectives such as protecting the intrinsic value of wild nature and biodiversity from human impact or, quote, assaults in the language of the environmental movement.
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instead of new ski resorts, we would now have high mountain wilderness. instead of timber harvests, we would now dedicate millions of acres to protecting endangered species such as the spotted owl. instead of new recreational roads easily accessible to most americans, the clinton administration would commit itself to doubling the size of roadless areas in the forest -- national forests. secular environmental religion never had enough public support to win official approval from congress. instead, ecosystem management was put into practice in both the clinton and obama administrations by aggressive executive action. but even more influential was the american judiciary which in the 1970s effectively replaced the forest service as the leading driver of public policy.
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it will clash of environmentalism with scientific knowledge is now increasingly recognized even by many american environmentalists themselves. we live in what is increasingly being recognized as an anthropocene age. there is nothing to protect from human impacts. so this has all been something of a very happy delusion. the obama administration sees itself as the virtueous spokesperson for higher mrp values. the rest of us, in essence, are country bump kins. but fst the obama administration that fails to recognize that the grounds of its supposed high ideals have been crumbling in the 21st century. but projecting fantasies on the west is admittedly nothing new as i've been describing.
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the most recent example of all this was the announcement just last week by the obama administration that it's suspending federal coal leasing. it was under pressure from many current environmentalists who increasingly demanded america must soon become fossil fuel free. and they were also pressing to keep it in the ground in the west. hauling coal leasing is a symbolic incremental step towards the realization of that goal. as always, the public lands in the west are a guinea pig for projection of the latest idealistic fantasies of a truly natural world. such projections are easier to make when the land is public and is subject to federal decisions in washington. it would be much more difficult to try to put these fantasies into effect if the land is privately owned.
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but in the west, i don't see any prospect for privatization. so the state transfer is what we have to look for. in conclusion, i remain an optimist that a new dose of reality can be introduced into federal land management. about 30% of federal lands are now being managed for the protection of their supposed wild character. it may be a fiction, but a lot of people still believe it. as a political compromise, i would be willing to accept their continued federal ownership. and, in fact, the utah proposals essentially do, that exempting the national parks and wilderness areas. for the rest of the land, itq, seems to me quite compelling -- of course i've been saying this civil liberties t since the early 1980s, so it's not exactly -- i've give youn the rationales of how i came to the conclusions but it seems obvious if we were to apply any
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normal understanding of american federalism principles we would simply transfer the ordinary or the multiple use public lands to the state. [ applause ]. >> thank you, dr. nelson. next, examining the revenues and expenditure s associated with federal land management and comparing them with state trust land managements in several states, mr. matthew anderson, a policy analyst with the coalition of self-government in the west, an organization based in salt lake city. he will briefly describe the experience of western states that abundantly illustrates the great differences in outcomes when the performance of absentee bureaucrats is compared with that of people whose livelihoods depend on the effective care and management of their lands. mr. anderson. fan
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. >> hi, everyone. it's an honor to be here at the heritage foundation and our nation's capital. i'm charged to talk about the economic impacts federal lands have on western states in five minutes. that's a pretty tall order, but i'll do my best. 90% of all federal lands are located in the western united states with one out of every two acres being managed and controlled by the federal government. that's one out of every two acres being controlled by bureaucrats nearly 2,000 mile ace way from people who know the land. dr. nelson talked about the environmental impacts that has. certainly we see that every day as westerners. polluted skies, smoke, decimated wildlife and dying forests are reali reality. but the economic ramifications are just as real. we see that our oil and gas industry as well as our other development oil industries are languishing under heavy federal
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regulati regulation. what's this doing? well, those in our rural communities are experiencing a mass exodus out of our state to other community where is jobs are abundant and they can provide livelihoods for their family. clearly, federal lands impact westerners, especially in their pocketbooks. so to begin with, want to make sure this works, there we go, from 2008 to 2014 pennsylvania experienced a 2,000% increase in the production of natural gas. my home state of utah, 1%. now, this isn't a matter of geology or the amount of natural gas that's in pennsylvania compared to utah. we have plenty of that in eastern utah. what it is is federal management. the federal government only controls 2% of the state of pennsylvania. my home state of utah, 66%. huge difference. when we consider, that we also need to consider how long it takes for these oil and gas
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wells to -- their permits to be approved. in 2011 the blm reported it took an average of 307 days to approve a new oil or gas well permit. 307 days. almost an entire year. that's when permits do get approved. the obama administration has put a cease and desist on all new permits for coal. so that's just when it actually happens. so when we combine this backlog with all the federal lands that are considered off-limits by the federal government, is it any surprise that states like utah are languishing under this federal regulation and not producing as much as eastern states. so we must ask ourself the question, what if the federal government loosened its grip and we had the opportunity to use these lands? well, an economics professor at the university of wyoming has the answer to this. in his 2013 study, he proposed three scenarios based on the amount of oil and gas well lease
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permits that are up as well as the economic impacts it would have if the federal government were to approve these. he gives a high, a medium, and a low scenario as you can see over there on the powerpoint. underneath the medium scenario, the approval of permits would go back to the original level they were at before 2008. 2008 saw a huge shift in the amount of permits that were being approved. under that, we would see a huge increase to the economic benefit to states in the rocky mountain region. over 600 more gas and oil wells would be drilled every year. that would be $10.6 billion in increased revenue from oil and gas, 87,000 jobs, and more than $3 billion in tax and royalty payments to state and local governments. that is an exhorbitant amount of money going unused and being backlogged by the federal government. the problem is this is unlikely
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to happen under federal management. we're unlikely to see this become a reality. last march the property environmental research center released a study of state land management on state trust lands versus that of federal. the four states that were examined were new mexico, arizona, montana, and -- pardon me -- montana, idaho, new mexico, and arizona. these states were a great comparison for the property environmental research center because they have very different economies, very different state management agencies as well as natural resources. it came as no surprise that states managed their lands much more effectively than the federal government did. in fact, the federal government lost $2 billion every year on their land management in the western united states. when states, on the other hand, were producing substantial amounts of revenue. now, as you can see on my powerpoint over here, for every
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dollar that the state spent on -- the state spent on land management they produced $14.51, whereas the federal government, well, they were losing 27 cents on every dollar, only producing 73 cents. that's amazing. the federal government does not have the same incentives that states do to produce economic benefits when they don't control for costs the way states do, they don't produce the revenue. the reason for this is they cannot keep the revenues generally they produce. in addition to, this you can see that the federal government spends nearly six times as much per acre as states do for their management. so there's huge economic ramifications that occur here. oftentimes in the federal lands debate we hear the question, if these lands were transferred over the state, how would you manage them? how could you afford to do it? i think the real question should be asked, how are the feds managing to do this?
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the simple answer, taxes. this isn't just a western problem. this is a problem that impacts all of us. utah is paying for this. arizona and colorado, sure. but maryland, florida, new york, and other eastern states are as well. the simple fact is these land need to be transferred to the states. the states have the capability, know-how, and desire to manage these lands responsibly and economically. thank you. [ applause ]. >> thank you, matt. focusing now on the legal dimensions, on december 9th, 2015, an acclaimed team of constitutional scholars and legal experts presented a landmark legal analysis on utah's claims to compel the federal government to transfer certain multiple-use federal lands to the state. the exhaustive 150-page analysis of the history, constitutional construction, course of dealing, and jurisprudence concluded that the intent of the property clause of the u.s. constitution was to dispose of public lands,
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not to forever retain them. we will now view a brief videotaped message by a member of that legal team, ronald d. rotunda, j.d., eminent constitutional scholar and the henley chair and distinguished professor of jurisprudence at the chapman university school of law. immediately following professor rotunda's remarks, we will be pleased to hear from mr. robert -- excuse me -- mr. george r. wentz, a partner in a law group, and the leader of the legal team commission ld by the utah legislature. we'll now view the videotape. commissi commission. >> i want to thank the good people at heritage for inviting me. ms i can't be there in person. i've been involved in constitutional law since i graduated from law school 1970 in the prior century. and this is one of the most exciting cases i've worked on because it relates to a basic principle of state's rights. in a way, it's not to give
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rights to the states. it's to give rights to us, the people. when the 13 states got together, they understood that some states had a lot of land, you know, virginia, some states had very little land, rhode island. virginia claimed land from the eastern shore all the way to the west coast. in fact, part of california was originally part of virginia according to the title from the king. well, people didn't want that to happen. and they didn't want some states to be unequal to others. they should be equal in what we call sovereign powers. they should have the same powers over their land that other states had. and so they had the principle, what the supreme courts called the equal footing doctrine. all states come in on equal footing. we knew how to acquire land, but they wanted to make sure that there was this power, indeed obligation, to dispose of the land in the way of developing
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the nation. the idea was that they would turn over the land to the federal government. the so-called public land to the federal government was so that it could give clear title. there wouldn't be dispute about who owned the land, federal government, state government. no. everyone understood that the federal government would engage in the regular disposition of the land. and they did that at first. they did this for 38 states -- maine, texas, tennessee, vermont, kentucky, hawaii. in all of though, the federal government turned over to the states the public land when they became states. not so for utah, oregon, and other states. 12 are in an orphan-like position. they're less equal than others. if you drew a longitudinal line roughly through denver, you'd find to the right of that line facing the map the federal government owns hardly anything. and to the left of that line the
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federal government owns at least half or substantially more than that in many of the states. and if you subtract from all that land the federal parks, you know, the grand canyon and so on, that's minuscule compared to all the rest that the federal government owns, and it lies fallow. for example, in utah, the federal government owns more land than the entire state of new york in just one of the counties that owns an amount of land greater than the entire state of connecticut. over two-third of the state is owned by the federal government. the legislature and people of utah and the governor, they all agree could not string a fiber-optic cable across the state without getting permission from a bunch of faceless federal bureaucrats in washington, d.c. that's not what the framers intended. it's not the way it was in this country until about 1976. people don't seem to understand
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it. now, what the federal land policy management act tells us in 1976 is that 12 of the 50 states are going to be treated second rate, not on equal footing. we didn't know that at first in the way it was phrased. but the way it's been interpreted we have figured out that the federal government is not about to allow these 12 states to be like all of the others. we have this problem. what is to be done? well, what we don't have to do is what they'ring to in oregon now. that is take over federal build gts. no. the constitution hatz given us a remedy for the power to sue the federal government for violation of their rights. i'm really pleased to be working with a great team of lawyers. there's john howard, who's a lawyer in california, working on land problems for years, has a tremendous knowledge of both the early history and all the case law in this area. jim jardine, a respected practitioner in salt lake city.
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richard semens, former assistant to the attorney general. he's argued over a dozen cases, 15 or more cases before the u.s. supreme court and expert on supreme court practice. george wentz, who has his law firm in louisiana, very knowledgeable about the areas. and then there's little old me. this is a good, solid case, and what the federal government is doing is wrong and the western states uniformly object to the federal control. they know how to take care of the land and they can do a better job than people several thousand miles away. >> so i think they went back to my high school yearbook for that picture. so, i'm george wentz, and if i can get this to work i'll start rocking and rolling here. there we -- oh, there we go.
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okay. >> from 1970. >> all right. they gave me 15 minutes to cover 400 years of history and jurisprudence, so i'm off to the races, guys. here we go. so i think professor rotunda has shown us what's going on here very well. and when it comes to dpin i don't know over land within its borders, utah is treated very, very differently than 38 other states. today we're going to talk a lot about the equality of the states, the sovereignty of the states, and the way the states' governments interact with the federal government, the federal government that the states themselves created. but we all know that nobody ever went fishing with a state or nobody ever sat down to dinner with a state. when it comes down it to, what we're talking about is the issue of kids, their future. this is my son, rob. so when we talk about these legal theories, i want you to understand that all of these legal theorys that we're going
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to discuss are designed to protect the life, liberty, and property of kids like my son rob. over the course of my lifetime, the biggest change i've seen is the progressive growth of the federal government and at this point i think the concentration of power in washington, d.c., is probably the largest threat to my son's future. so when i talk about federalism, the structure of the constitution, a lot of thought went into that by the founders to protect that kid's future. so let's talk about equal sovereignty principle. according to an unbroken line of supreme court cases, the states of the union -- you can see the states there -- they created the federal government in order for the system that i tried to depict in this picture to work, the states have to be equal in sovereign power. now, here's how chief justice roberts put it in 2013 in shelby county v. holder.
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"not only do states retain sovereignty under the constitution, there is also a fundamental principle of equal sovereignty among the states. over 100 years explained this nation was a unity of states. week wall in power. the constitutional equality of the states is essential to the scheme of which the republic was organized. it remains highly pertinent in subsequent disparate treatment of states. it makes perfect sense when you consider we are a federal republic. we are a federation of states. the central government was created by independent sovereign states that had fought long and hard and defeated the most
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powerful military in the world to get their independence and their sovereignty. they were not about to go into a union where they had to give that up. they were going to be equal. now, the government takes the position that dominion over land within the borders of a state has absolutely nothing to do with state sovereignty. nothing to do whatsoever. so let me show you where this thing all started, where the states started first arguing about equal sovereignty. you got it. dominion over land. under its 1609 charter, virginia claimed a massive swath of land all the way out to california. and maryland was this little land bound locked state over to the right. maryland said, we're not joining a state where we're going to be swallowed up by this behemoth
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virginia. we're also not willing to join a union of states where virginia can create subsequent vessel states. you vote the way i tell you to vote. they could stack the deck in congress. so maryland was extremely worried about this. they held out in joining the union over this. six states had western land claims. not just virginia. they were conflicted. they were all over the place. france was standing by to join the fight against the british, but they were not going to join until the united states got their act together and formed an effective government. so maryland insisted that the states with western land claims give those up. the question rose, give them up to whom, to what. the only answer out there was to give them up to the new central government they were formed to be divided out into new states
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that would become equal members of the union. so in 1780, maryland held out long enough to get congress to pass this resolution. that the unappropriated lands that may be relinquished to the united states shall be disposed off for the common benefit of the united states and be settled and formed into distinct republican states and have the same rights of sovereignty, freedom, and independence as the other states. maryland finally relented in march of 1781 after virginia and the other states with western land claims agreed to this resolution. almost immediately after that, france sent over 20,000 troops. they sent over their fleet. and within five months of maryland signing the articles of
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confederation, guess what. the war was over. i don't know how many men died while maryland held out for the principle of equal sovereignty, but it is a fundamental funding principle of our nation. it's in the fabric of the way we were constructed. equal equality of the states. in addition to the rulings of the supreme court that i read to you, history also dictates that the states must be equal in sovereign power and the states from the beginning have seen that equality as having an awful lot to do with dominion over the land within their borders. so as a matter of history, the government's position that dominion over the land within our borders has nothing to do with sovereignty is wrong, but i believe they're also wrong as a matter of constitutional law. in a federal system, as you can see on the screen, the states create the central powers i've said. it only works if each one of those states when they're bargaining with each other can protect their interests.
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and that only works if they have equal sovereignty. if you have weak states that can't protect their interests, they would be ganged up by the stronger states who control their votes and once again the deck gets stacked in congress. it would be exactly the situation that maryland held out for during the revolutionary war. so is utah weaker than new york because utah does not have dominion over its land when new york does? the answer is absolutely. absolutely. let's talk about two rights the supreme court has recognized as fundamental sovereign state rights. taxes and self-governance. taxes are the fuel of self-governance, but utah can't tax 66.5% of its land, so it gets sort of a welfare check that you've heard about here, pilt, payment in lieu of taxes. do you think there's any political pressure in congress
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associated with congress issuing those welfare checks to utah? that may be some strong arming goes on? here's what he said. here's the beginning of the quote. congress lauds its power over western communities to extort political concessions from them like some two-bit racket. that's a nice fire department you got there, congress says to western communities, nice school your kids have. would be a shame if anything happened to it. these states and communities are looking for nothing more than certainty and equality under the law. yet congress treats these not as rights to be protected, but as vulnerabilities to be exploited. closed quote. this is not what the framers had in mind. our federal system simply can't work as designed where some states are weak and their votes in congress can be controlled by the strong states.
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the citizens of the weak states will never be equal to the citizens of the strong states. and this is happening now throughout the west. so second, the federal system is based on a concept called dual sovereignty. you see the federal government up top. the states down below. there's a duality in this system. what's that all about? that's all about protecting the citizens of the states from tyranny and protecting their individual liberty. once again, it comes down to people. here's how the roberts court put it in the first obamacare case. i'm sorry for the density of that slide. but if you can read it with me, state sovereignty is not just an end of itself. rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power. because the police power is controlled by 50 different states instead of one national sovereign the facets of governing that touch on
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citizens' daily lives are administered by smaller governments closer to the governed. the framers thus insured that powers which, during the ordinary course of affairs concerning the people were held by governments more local and accountable than a distant federal bureaucracy. the independent power of the states also serves as a check on the power of the federal government. by denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. so how does that work when you've got the federal government owning 66.5% of your state? well, you know what? it doesn't work. the dual sovereignty is swept away. unelected federal bureaucrats
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thousands of miles away exercise police power over far more of utah than governor herbert. and the citizens of utah can't vote out unelected federal bureaucrats if they don't like what they're doing, so utah citizens do not have the same protection from arbitrary sovereign power that new york citizens do. it's a huge problem. utah is also denied the same sovereign power to take lands. you've heard of condemnation proceedings. you want to build a road. well, you know, utah is 66.5% is federal land. you can't throw a stone without hitting federal land. you can't condemn it. try to build a highway. try to string a broadband system. you can't do it. you can do it in new york. you cannot do it over here in utah, so that's another sovereign right taken away, but think about that right. commerce attracts industry,
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population growth, okay? highways and broadbands make commerce. now let's ask this. how is federal political power doled out among the states? the way it's doled out among the states is through the census every ten years on the basis of population. so we increase our population, we get more house seats and we get more votes for the president in the electoral college. but because we have no sovereign power and we can't create highways and broadband and other things to attract commerce and industry, we can't increase our population. no population. no political power. no dominion over land. no ability to develop commerce. no commerce, no population. no population, no political power. so it's a vicious cycle. you know, if you look at this map, if you wanted to gerrymander the nation so that the west would be permanently denied political power in washington, d.c., you'd do exactly this.
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so the government, i believe, when it says dominion over land has nothing to do with sovereign rights, i believe they're simply incorrect. it was only designed to work if they had that within their borders. there's another doctrine that we rely on called the equal footing doctrine. it stems from the equal sovereignty principle that the court emphasized in the shelby case that i discussed earlier. it's only logical if everybody in the club has to be equal, if you bring a new member into the club, they've got to be equal too, right? that's a pretty simple concept i think we can all agree. those western states, do they look equal? okay. let's go through the equal footing doctrine. let's talk about it with relationship to dominion over land. let's go through a logical progression. one, we know historically in
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every instance ownership of the unappropriated lands are an inherent right of sovereignty that they get. sovereign gets the unappropriated lands. the crown and all the unappropriated lands in the 13 colonies is an inherent incident of sovereignty. upon independence the original 13 states succeeded the ownership of the unappropriated lands within their borders as an inherent incident of sovereignty. new state are admitted as equal sovereigns. i can quit right now. utah gets its land, right? we all agree. there's no way utah didn't get its land, but uh-oh. utah didn't get its land. so what happened? what went wrong? what we're missing is a little piece of history called the compact theory. the deal was that the federal government was holding the land in order to dispose of it and dole it out into states, right?
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so the new states were brought in with the explicit understanding that they would get the land over time through the disposal of the land and grow to become equal. here's what the supreme court said. whenever the united states shall have fully executed these trusts -- they were holding it in trusts. they were holding the land they had in trust to create new states. that's the trust the supreme court is talking about -- the municipal sovereignty of the new states will be complete throughout their respective borders and they and the original states will be upon equal footing. that is exactly what happened from 1785 until about 1913. do you know what happened in 1913? we passed the 16th amendment and we created income tax. we gave the feds a new source of revenue and suddenly they last all interest in liberating western lands. but not only did they lose interest in liberating western
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lands, congress somehow discovered instead of holding the land in trust it was really theirs and congress owned it and they were going to keep it and not give it out. the admission compact they made with the 12 western states went out the window and the mechanism for doing it, the compact clause, was breached. now we talk about three different -- here's what we have now. we have now united states will never fully execute these trusts. the sovereignty of these 12 states will never be complete throughout their respective borders. and they and the original states will never be upon an equal footing in all respects. whatever. we talk about three theories, but it's really one theory. you've got the base equal sovereignty. if they're equal, they've got to be equal and they come in. the compact theory is at the top. it means we're going to allow the new states to grow into equality. if you breach the compact, then you have violated two bedrock constitutional principles, the
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equal footing doctrine and the equal sovereignty doctrine. utah deserves to allow this compact to go forward and to grow into an equal sovereignty. [ applause ] >> thank you, mr. wince. as they have explained, there is no constitutional authority for the federal government to treat western lands like second-class citizens. the legal analysis makes clear that congress lacked the authority to halt the disposing of the lands. the framers of the constitution intended to grant the power to regulate public lands only in the context of their disposal, not to permanently retain the majority of the land within a state. in terms of the environmental and legal dimensions, in a moment we'll have the opportunity to listen as
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gregory h. hughes, speaker of the utah house of representatives, explains what has been done and where do we go from here. under the leadership of speaker hughes, the utah legislature has led the way in addressing lands-related issues of equal opportunity and fundamental unfairness. in the interest of time, we will forego the introduction by his colleague and acknowledge his persons here today. ken was the sponsor of the utah transfer public lands act enacted in 2012 and has continued to be the champion of it. we're pleased to welcome speaker greg hughes. [ applause ] >> thank you, stan. thanks for -- i want to thank the heritage foundation for formats like this and the opportunity for us from utah come out here from the beltway and talk about things that impact this whole country. i have to admit i'm not originally from utah. i grew up in pittsburgh, pennsylvania. my mother is a single mother and went out west to go to college.
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i met my wife from utah and that made me a utahan. i only bring that up to give you the perspective that i'm a city boy. utah, our issue are about lands and land sovereignty that have come from our rural folks. these are the guys that are out there trying to interact with the bureau of federal land management. i'm here to tell you the impact of a growing federal government in our states, particularly as you saw that map, the western states, it hits us and impacts our communities down to our urban districts of house districts and your suburban districts. i bring it up for another reason. there's a guy in here from mt. lebanon high school. when i was a little kid, mt. lebanon high school was like the swanky high school. they were the first high school to have artificial turf for their football field. we're all playing on dirt in the middle of the 50-yard line.
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mt. lebanon had artificial turf. why was that the case? it was because the property tax in the mt. lebanon school district afforded them the ability to have football fields with artificial turf. if you look at this country, most of education funding is from our property tax. it's the fuel that drives the classrooms and these teachers' salaries. when you get to a state like u ut and you look at a map that shows there's very little property that is available to be taxed, how does a state like ours fund our public education system in the throes of the depression because there wasn't a lot of available funds the state legislature enacted a state income tax. our state income tax is dedicated to our state education.
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so we see -- we feel the impacts of not being able to access the land or use some of the other practices and other policies that other states are able to use to fund something as critical as our public schools. if the environment is something that you care passionately about, and i believe much of the stewardship or the idea we would stop disposing of land, like the country had done, up to 38 states, i think the 76th legislation was done in regards in trying to improve or protect the environment. today we can show you that the state management of lands protects the environment, makes sure that those forest fires don't rage beyond innumerable acres that are damaged. on environmental concerns, you can make an absolute verifiable
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argument that we can be better stewards of the land when the local states are able to control and manage those lands. you can show for our case, at least in utah, our education system would be turned around overnight with the ability to do what 38 states in our country have already done. why does this matter to anyone here that doesn't live necessarily in utah or even live in a western state? it was mentioned in here we have these payment in lieu of taxes. when they decided we're going to stop these rules, we're going to stop doing it the way we've always done it, we'll give you some money for your trouble. there's an acknowledgment that we shouldn't, but we're not. they're pennies on the dollar. the question becomes, the reason why you saw a lot of that disposal of land over the time is because the treasury in the federal government needed those dollars. you see at some point with a new federal income tax that came on
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the books and other sources the need for the treasury to see those lands disposed of in the pace and in the way that they were had become not so urgent. with $19 trillion of debt, i think this treasury might not need to send p.i.l.t. payments to states any longer. taxpayers across this country no longer need to send to states what they're sending in payments in law of taxes. there's a way for the states that manage their lands to see resources from those lands and revenue. $14 per every dollar managing it. we're losing -- the federal government loses dollars as they attempt to manage our lands. my point today -- and i'll try to be brief -- is that i think we're all in this together. i was elected in 2002 into a state legislature. i served as a public education
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standing committee chair for two terms. i was our majority whip for two terms. last year i became the speaker of the house. i will put my money on the states and their legislatures of this country every single time and i'm not just talking the republican states. i'm talking every state, republican majorities, democrat majorities, they balance their budgets. they manage the tasks, the policies in front of them, and we, as a nation, need to look at our states wherever we live and say we know those dually elected representatives, assembly members, senators, they can do this job. they do do the job. i look at the 38 states and i see in the state that i grew up in a great opportunity, tools in the tool box, to be able to do
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the job of representing the people and letting the people enjoy those things that an organized government would provide, public education, public transportation infrastructure. we have worked with other states that have been impacted this way, but this is a conversation that has to be much broader. you heard from mr. rotunda on the video. you've heard from george. what we did as a state, we said we've had this political discussion for a long time, before i ever arrived in the legislature. we needed to do something different. we did it through an rfp.
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we asked for requests for proposals to propose a way to review in a dispassionate and scholarly way. if these issues that we've brought up today is something we should pursue. you've seen the product of that in our discussions today that we have an exhaustive body of work and a case to be made that in fact there is something we should be doing as a country on this front. so our commission -- let me get to the name. the commission for the stewardship of public lands is a -- it has republicans and democrats that serve on this commission in our state legislature. there was an rfp that was done. i think it's a dream team. i think this is one of the strongest cases legal cases you'll ever hear about why 12 states in this country are not on equal footing and are not having the opportunity and citizenry are not having the same opportunities afforded them as 38 other states and that's just not the way it was designed. so we're moving forward in that case -- and this is broad. i'll just say this. you don't know what you don't know. i am absolutely convinced that the stakeholders in this issue are a lot more than we realize. i really believe that if you're an advocate for good and quality
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public education, you should be paying attention to this issue. if you care about the stewardship and being good stewards of our environment, you should care about this issue. if you believe in the transportation -- we've got to get fiber. we have to get these technology natives, kids born where they don't know a world without technology. we have to be able to get the information technology infrastructure to these schools. that's something the federal lands keep us from doing. simply letting commerce occur or being ae being able to access these lands. there's so many different stakeholders in this that i don't see this as a partisan issue. i think this is bipartisan. i think any state in this country, regardless of the makeup of their state legislatures would do well to have this kind of autonomy and be a state on equal footing, and that's why i'm here today. and truly as you go back, wherever you're from, i think a robust discussion about this even in the questions and
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answers we've had today challenging what we've spoke about today, let's do that because i think there's critical issues that face all of us and i thank you for your time. [ applause ] >> thank you, speaker hughes. in just a moment we'll talk the opportunity for those of you here in the auditorium to pose some questions, but join me in thanking our panelists. [ applause ] >> becky, you can indicate how long we can go here, but we'll open it up to some questions. questions anyone here might want to pose to members of our panel. right here. >> you mentioned on the federal lands of oil and gas [ inaudible ] 306 days or something. what would be the average day
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on, say, utah lands, state lands in utah? >> could you clarify? you mean, average day if it was changed over or as it currently sits? >> yeah. you were saying how long that was with the feds to get a simple permit through. how long would it take on your lands today? >> i don't know that. that study didn't break it down. it just had that 307 days total for all permits regardless of which state it was in, so i don't know the answer for utah specific. >> got a question right here. >> i read your legal report. it's great and it's very convincing. i would like to ask you another legal aspect about the federal lands, which is the assertion by the federal land managers that
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they have police power on the federal lands. this seems to me to be a huge problem and it's a growing problem, and their police power to me seems to be -- their claim seems to me to be illegitimate. i wonder if you can discuss that and perhaps discuss how the state of utah might somehow reassert its own police powers on the federal lands through the state legislature and the governorship. >> that's probably in my court. okay. good question. you know, the case the federal government is always going to for property clause issues -- justice thurgood marshall wrote there was a plenary power to regulate. they've never addressed our issue, but even in that case justice marshall recognized the extent of the property clause has not been fully supported by
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the court. he also said that there was an overlap of jurisdiction and that the states had co-terminus jurisdiction in some instances over federal lands as well as the federal government. so if i look at the case law, there is an indication that the power that you've discussed is not legitimately exercised. if i look at the case law discussing the federal system and the way it works for the protection of individual liberty that the roberts court has emphasized to frequently, then i don't see how in the world the federal government exercises police power. it's the dual sovereignty issue that i discussed. it's an illegitimate exercise. we're not supposed to be -- you go to mexico city. you'll see federal police. they carry guns and they're policing. their system is very, very different from ours. we have never had federal police. show us your papers, mr. vince?
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that's not how we do it. but now you go in -- when i moved from louisiana out to idaho after katrina and i went to the west, you see vehicles on the side and it says federal police. never had i seen that. i don't believe that power should exist. i don't know it's been challenged, but the exercise of the police powers has always been reserved to the states. why? so we can vote them out if we don't like what they're doing. every bureaucrat i've met has a face, but unelected bureaucrats should not be exercising police powers within the borders of a state. a territory, another issue. in a sovereign state, no can do. >> thank you. another question back here.
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>> hi. so i guess the question is you've got this great legal analysis, this document, what are the next steps either legally and/or legislatively? where is this going? >> i'm going to continue to refer to our council, but i will say that there is a legal path that needs to be pursued. there is a legal path. i'll let george talk about that, but the critical thing for us is we absolutely have to have that game plan. not just speaking about how important this issue is, but how do we get something different than what we've already had. let me give you the opportunity to describe that. >> this matter is current -- >> do you have a live mike?
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thank you. >> this matter has basically been referred to the attorney general by the legislature and the attorney general and the governor of the state of utah are the executive officers that would make the decision as to whether a suit is filed. the ball is in their court. the recommendation has been made that they seriously consider this by the legislature. now, if they were to do it, what would they do? if the attorney general was to say, yeah, i'm for it, it's a go, the path that would make sense is to file a motion for leave. that would be the fastest route. it would probably be referred to a special master.
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it could take several years. it's not an easy clean shot, but that's probably the way that the state would move were it to move forward with litigation. >> i think as a legislative body we think the ball is in our court. this is a responsibility for legislators and the house and the senate to come together. we think it's our duty to do this. we would love some friends. we would love to have other states and others that are interested in this issue and understand its broader ramifications to join our efforts in going to the supreme court and making this case. >> at this point in time we're working with members of other states. i was in boise on friday meeting with state legislators as well as our senators in idaho and our state representatives in idaho. we have some folks here from idaho today.
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but it really needs to a coalition of western states to bring this to the attention of the nation, but when the federal system isn't working, you've got a problem. it needs to be corrected. it impacts the entire country. not just the west. if you want to do a study of the last farm bill, that's not how we want to see things go. that's not the way it was designed to work. and we need to fix it. it's a national problem. >> thank you. another question right here down toward the front. >> my name is bob weidner. i came back to washington. my name is bob wider. i came to washington in 1982 with utah senator jake garn, one of the original supporters of the heritage foundation, i should say. i now represent 35 counties in five western states all of whom are the recipients of this disconnect between the federal government and local governments all of whom are dependent upon
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p.i.l.t. payments. what i'm hearing here is that this issue is not ripe yet for congress to weigh in and act with legislation. we haven't educated congress. we haven't had these kinds of discussions with each member of congress. we need to do that in order to succeed in something this complicated. however, i think there are things that congress can be doing in the meantime while this new legal strategy plays out. one of the ideas that i've had that's received some good feedback and would be interested in your take on it, i have learned the united states government has never done a formal audit of its land holdings in a comprehensive way. we have oil and gas figures offshore and onshore and those numbers are pretty good, but we
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don't have all of the comprehensive information that comes from national park entrance fees, from grazing fees, from power line corridor fees, from all these remote places that the federal lands are supposed to produce. i'm a believer that if you paint a picture of the situation, the next questions will automatically come forward. for example, i think this audit, if done in a comprehensive bipartisan way and conducted by the general accounting administration, could paint the picture of lands that are grossly underutilized, mismanaged, and those eastern friends of ours who always say they have ownership of the western lands, they would have a dog in the fight in the mismanagement, the lack of management, would all of a
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sudden become an important thing for them to weigh into. i think that's something we do over the next couple of years while we're waiting for the legal strategy to play out. i think we can confidently assume that the results, if we do it in a bipartisan request, will paint that picture of the disconnect between federal land management and private land management. anyway, i think that's an idea to set the table for the political debate that ultimately has to occur here in the congress. just throw that out. >> thank you for the question. speaker hughes or mr. wince, would you like to respond? >> i have one question. what planet did you want this bipartisan coordination -- i was just curious. was this in d.c.? >> i think, for example -- >> that was a joke. it wasn't a serious question. you don't see bipartisanship very often going on right now.
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>> jason chavetz, to his credit, took his democratic counterpart to utah and then he returned the favor in baltimore. there are guys that get along. >> we need more of it, you know. >> in that spirit if you upfront were to get a bipartisan request in to do this audit, then you could argue after the audit results come in what to do about it. >> yeah. i actually think it's a great idea. i think the evidence would show, as you say -- i live out west. i couldn't ride my bike in the mountains this summer. my kids couldn't play football outside or swim because the lake we live on was so filled with smoke from the mismanagement of federal lands. so i think that the results of such a study would be supportive and it would be a good idea. if you could build -- this should not at all be a partisan
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issue. it's just a lack of bipartisan -- i think we all see. i think we all want to see more people working together for common ends. >> can i say, too, that i will promise you that most of us when we talk about the lands, our minds can't get around the expanse of land that we're talking about. when we talk about the environmental impacts or whether there could be revenue generated from this land versus protecting it, there's this image that you have these oil rigs under beautiful natural arches or you're taking away or scalping the land cape. we have as policymakers been in national guard helicopters and gone to the states different armories which take you around the state in a very unique way. when you're driving on a road,
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your eye can see the horizon. when you're in a commercial plane, you can't make out what anything is. when you're at that unique height and you're going around the entire state, you can take new york and drop it as a whole state inside this federal land. you can't imagine how much land. if i hated the environment and just wanted to pave the world, you could start in utah and you wouldn't be seen in 300 years because there's that much out there. the idea you can be good stewards of the environment, work and manage this land in responsible ways, see revenue it that would arrive many critical areas that we face every day, it can happen. it can absolutely happen. that bipartisan -- i just think people don't appreciate some of those things that are out there that are opportunities for all of us. >> i can see the headlines, speaker hughes makes the proposal to pave all the lands of utah.
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he did not make that comment. >> if i could make a comment, utah has actually done something very similar. they didn't call it an audit, but they produced a 732-page report examining the impacts on utah in which they went through the things you just mentioned. they're the only western state so far that's done it, but a number of western states have been debating in the legislature whether they're going to authorize similar kinds of studies. some of them are getting close to it. i'm not sure whether any of them have actually gone ahead and authorized what you would call a comprehensive study. the first thing to do would be to take this utah study, because you can do a great analysis of the whole public land situation in utah that was impossible to
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do until that study was released in november of 2014. so an alternative to your vision was actually a series of state-sponsored studies, and that might be more appropriate than a federally-sponsored audit of the whole west. it would also be part of the political process within each state where they started moving forward towards thinking more seriously about all these questions. >> let me suggest with that we'll conclude now. i'm sure our panelists will be pleased to stay and respond to questions privately after our event. becky, we thank you very much for your hospitality and with that, we'll conclude today. thank you for being with us. [ applause ] c-span will probably discontinue their taping, but if you have any other questions you'd like to present, we'd be happy to do that for the next
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few moments. anything else? anyone like to pose a question here? looks like we covered it well. thank you very much. former florida governor jeb bush is in iowa to meet with voters. we'll have that event live today at 1:45 p.m. eastern on c-span. and ben carson will meet with voters in iowa city at the university of iowa. he'll be joined by senator chuck grassley and that's scheduled to start live 3:00 p.m. eastern time on c-span 2. sunday on newsmakers, iowa governor talks about monday's iowa caucuses and their impact on the election process. how this year compares to previous ones and the future of the republican party.
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10:00 and 6 clm on c-span. earlier this month the supreme court heard oral argument. the case is about when the city officials violated the rights of a police officer who was demoted after his superiors assumed he supported a challenger in the local mayor's race. in 2006, a patterson, new jersey detective was picking up a lawn sign for the challenger in the mayor's race and he was demoted to a beat cop. he did not support the other candidate, but picking up the sign for his veteran mother. here's the oral argument. first this morning in case 141280. >> may it please the court,
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public employees have a right not to be demoted on patronage grounds. it does not matter if you are afilled with a specific party or nonaffiliated. it does not matter if you are mistakenly perceived by your employer or supervisor that you're engaged in political association to be protected by the first amendment. >> how would you define the right at issue in this case? >> the issue here -- >> how would you define the right that your client wishes this court to vindicate? >> defining the right in that pursuing elrod and his prodigy in that there is not necessary to have affirmative acts of being a public employee, he has the right not to engage in association. >> that's just a restatement of
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elrod. would it be fair to the proposition that you are putting before the court to say that you are asserting the right to be free from government inquiry into an oversight of your views? would that be a fair statement? >> it would be a fair statement, justice kennedy. >> because it sounds to me from the way you began your argument, that we take this case on the assumption that if he had picked up the sign, that if he had been supporting the candidate for chief of police who was challenging the incumbent, if he had been engaged, that would be protected and he could not have been demoted. do you want to take the case? do we have to take that? >> you do not have to accept that proposition. the proposition is clearly as a public employee he has a right
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to associate or not associate. in this case of the mayor's opponent which was the chief. >> but the first amendment talks about engaging speech. he was not engaging in an association and trying to convey a message. he was picking up a sign for his mother. if that's the basis, i'm not sure how he can say freedom of speech has been abridged. >> in this case, mr. chief justice, the case comes to us with respect to association with respect to speech, speech is governed by a different doctrine. there's no need to do a pickering analysis in this case. >> he wasn't associated with anybody any more than he was speaking. he was doing neither one. he was associating with his
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mother, i suppose, in picking up the sign for her. but he was not expressing any political view, he was not associated with a political party. what case of ours vindicates the right that justice kennedy describe to you in which you ready agreed with? what case of ours vindicates that -- >> elrod would stand for that proposition. >> elrod says you have a first amendment right to favor a political party or not favor a political party and you cannot be fired for doing so. that's not what happened here. >> but she he was not favoring a political party. >> exactly. he was not expressing a first amendment view or whatever. he was fired for the wrong reason but the's no constitutional right to be fired for the wrong reason. if he was fired was his
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government employer thought he had committed a felony and he hadn't, he might have a cause of action under a statute. but there's no constitutional right not to be fired for the wrong reason. and that's what happened here. >> there's a constitutional right, justice scalia, to be able to be free from pay tree naj, decisions -- >> where do we say that? we never said that. elrod and brantly are cases decided under the first amendment. the first amendment guarantees the right to freedom of speech and freedom of association. your client was neither speaking nor associating. how can he have a cause of action under the first amendment? >> he doesn't need to speak and he doesn't need to take a position. the rueton plaintiffs, they didn't take a position with
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respect to promotion or transfers. the fact of the matter is since they were not affiliated with the republican party or supporting the republican party or endorsed by the republican party, none of those individuals would have been promoted or transferred. they didn't take any affirmative acts. >> i don't understand your answer. what expressive activity did he engage in? he was not allegedly demoted for failing to support the mayor. he was allegedly demoted for seemingly supporting the mayor's opponent. >> in waters this court looked at the motive of the employer. the motive of government. if government perceives that you
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are engaging in a political activity and the motive is to suppress one's beliefs and associations or non-associations, then you look at it through government's analysis, and it's the basis of their facts that you're evaluating. he was engaged in campaigning. the officer went to a political gathering. he went and picked up a sign. what was misperceived by his employer was the fact of his intent. he said i'm not intending to support pal no la, but he's doing all of those activities that are core activities. >> let me clarify how i thought the case was presented. let's say the employer comes in saying smith, i saw you getting a plipt call sign and you're fired. and smith says it wasn't me.
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i was off in a different town then. in other words, it's a pure mistake of fact. your answers, it seems to me you're trying to get advantage of the fact that you could perhaps have argued this was expressive activities, he was at a meeting, a political event, he was getting a sign. but your theory, i thought, didn't depend on that at all. it's simply a mistake of fact. now can the person who wasn't even there, can he bring a first amendment challenge to his dismissal? >> yes, mr. chief justice. the point that i was making -- >> again, it's still not clear to me what is the right that he's asserting? and i'll back up while you're thinking about that. can a local government say that all of our employees must be neutral in campaigns and must not take part in campaigns, they can vote but they can't take part in campaigns? >> there is no provision here.
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>> can the government insist on neutrality? >> i think the government can have a policy after balancing the interest between that of the employer and that of the position. >> is that an issue in this case? is there any allegation that there was such a policy of neutrality, that no employee could engage in political activity? >> justice ginsburg, there was no such policy in this case involving -- >> i'm sorry. i thought there was an unwritten policy. >> there was a policy that the chief said existed with respect to members of his staff only. however, with respect to that policy, there's no testimony regarding that policy. in other words, the people who worked in the chief's office,
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there were four individuals who were officers. none of them ever heard of that policy. also, that policy was never raised in any of the motions for summary judgment or the motion before the third circuit twice. we believe that motion is away. but to answer your question, your honor, is the fact that no one knew of this policy. you can say he had a policy and make reference to it, but i's not supported by any evidence in this case. >> is there a remedy for your client apart from this action under the first amendment? does he have civil service protections of any kind, i don't know, collective bargaining? what would happen if the boss comes in and says, you know, you didn't turn off the loiths last night, you're fired. is there a way for him to say i was on leave yesterday. it wasn't me? >> that's not a constitutional
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violation. >> my point is maybe this shouldn't a constitutional violation if there are adequate remedies to address what may or may not be an issue tlnchs were no owe remedies. this is a state -- new jersey has a state civil rights acts which mimics 1983 just because there's such a right doesn't mean that you can diminish the first amendment and give up your first amendment rights. clearly we proceeded with the fact that there was a violation of the first amendment. >> that's a strange act. it protects state employment only against first amendment violations? >> no. >> i can't think imagine that. it must have other protections for state employees. >> with respect to the new jersey statute, it's just identical to a 1983 cause of
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action. it doesn't give you any additional rights. >> does it mean you have to violate the federal constitution to get relief under new jersey law? >> do you have to in. >> yes. what does new jersey law say. >> he proceeded in -- >> what does the new jersey law? you brought it up. i didn't bring it up. what does it say? >> it just mimics a 1938 cause of action. >> it says you can't fire a state employee in violation of the federal constitution. that's what the new jersey law says. strange law. >> you don't have the text of it, do you? >> i'm sorry >> the text of the new jersey law so we know what we're talking about. >> new jersey law can't create the rights.
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it's not proekted i -- >> new jersey law provides the statutory right of act for an attempt to violate an individual's civil rights. is he wrong? >> an attempt to violate? >> yeah. >> it is included in there but it doesn't give you an exclusive right. >> the question is not whether the new jersey law somehow abbro gates first amendment rights. the question is whether he has an independent remedy under state law. that's the question i think that's being asked. >> he could have a remedy understated. but in this instance he asserted his first amendment rights -- >> how could he? if we say no first amendment rights, what civil law has he violated? is the state of the law
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attempting to violate civil rights. >> the right not to associate. >> well if we say it doesn't exist. if you lose this case. >> if what doesn't against, ms. soed meyer. >> the right you're making. >> he might have brought substantive lights under new jersey law. i would be somehow surprised if that were not the case. civil rights to which the new jersey statute may refer to rights around the constitution or other new jersey law. >> just because it doesn't abbro gait your first amendment rights. it doesn't matter whether or not -- there could have been a violation of any type of new jersey student. it wasn't alenged in this case. it was never brought up by respondents in the case during any of the organizations or the briefs. and therefore it's our position that he has ever right to
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maintain this litigation with respect to violation of his first amendment right. and here he is alemging that he has to right not to associate. and that right really stems from the fact that this court has considered, in elrod and its prodigy. furthermore, the third circuit makes it mistake in requiri i's not necessary. additionally, the third circuit's decision in this case actually lacks common sense. i mean if you take a hypothetical with two police officers going to pick up a sign, and when they go to pick up the sign, they're at a
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campaign gathers and one gig states to his employer, yeah, i was supporting spag no la. mr. huffer would say should make no difference. the outcome is still the same in the sense that they're both engaged in that activity. the only difference is is that the employer perceived mr. heffernan as engaging in protected activity. they went to stifle and squash his rights of association or nonassociation. their motive was to suppress that. and clearly that has a chilling effect on other employees. i mean, it's just very clear from the testimony in this case. and if you go to the appendix page 50, what is very telling about this case is the fact that when he went to pick up the sign there was a councilman there who was a chairperson of the election. and he says to heffernan, says,
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boy, you better be careful. maybe you should come back later because we're hanging up these signs. and that clearly shows the chilling effect it would have not only in this police department or in the city of paterson, but other employees in different jurisdictions and different areas would have the same issues. you would have to think twice before you did something. if you went to a political gathering or a campaign, if you went to hear a speaker speak and you picked up a pamphlet and put it on your desk, if your employer saw that and they didn't like that candidate, and they took action against you, you would see that that is action based on a motive to suppress one's rights. >> all of those things would be true if the mayor gave a speech saying, i am going to fire anybody who's not a republican. all of those things would be true. it would chill people. would there be a cause of
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action? would anybody have a cause of action because of that speech? >> because of the speech itself? >> yeah, because of the speech. he hasn't fired anybody. he's just said i am going to fire anybody who's not a republican, or anybody who's not a republican will not get promoted. does anybody have a cause of action for that? >> there would be no claim because no action was taken. so part you have the perception that -- >> exactly. so what counts is whether action was taken for a particular reason, not whether you chilled, whether you chilled people. what you're arguing to us is this is unconstitutional because it chills other people. that just doesn't carry water. >> justice scalia, what carries water is the fact in this instance heffernan was denoted on the employer's mistaken perception he was engaged in activity. and you don't need to engage in that activity. >> would you say he was demoted because he gave the appearance
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of exercising his first amendment rights? >> yes. because they perceived it that he was exercising his rights. and the fact that he actually was not engaged in any political activity should make no difference with respect to the motivation outcome of what took place with mr. heffernan. the issue is clearly that it was ill will, it was because it was against the administration. and they took that action to suppress that belief. and it chills other. mr. chief justice, may i reserve the remaining time? >> you may. >> thank you. >> mr. chief justice, may it please the court, i would like to start with justice kennedy's question about how do we define the right here. we think the defendant has first
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amendment right to not have adverse action taken against him by his employer for the unconstitutional preference of -- >> what's your best case for that proposition? >> there are two aspects of this case. i'd like to get back to your concern of proving beliefs. we think the way the court defined in ru tan and o'hare an employee doesn't have to demonstrate his first amendment rights first. so in those cases the court said that the plaintiff can show a constitutional violation of the first amendmentply by showing the employer acted -- >> those case, ms. anders, i missed what you said. those cases were? >> that was brandty, this is 445 u.s. 517 again in rue tan and in o'hare. >> you're saying all those cases no first amendment right was being exercised, right?
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>> no -- >> is that your point? >> well, i think actually in the rueten case there were three plaintiffs and it wasn't clear if they engaged in any affirmative -- >> was it clear that they hadn't? >> it was not clear whether they had or hadn't. and the court didn't inquire into that. so what happened there was that the plaintiffs had been -- had adverse action taken against them because they had lacked the support of the correct republican party officials. that's all the court says about their allegations. there are any number of reasons they could have lacked that support. they could have affirmatively refused, obviously, to seek the support. which would be an exercise of first amendment rights. but on the other hand they may simply have not had the time to seek the right support or may have been ignorant of the requirement in the first place. those wouldn't have -- >> i thought in all of these cases up to now whenever anybody's fired, demoted or even not promoted, it hurts. and you want to bring lawsuits sometimes. up to now those lawsuits would
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have to show i was asserting first amendment right. and it's for that reason that i was not promoted. but what you're saying is you don't have to show that at all. all you have to assert is that the reason i was not promoted was that the employer believed that i was thus and sor or not thus and so. you don't have to show any assertion of a first amendment right. you just show that the employer liked republicans, and that's enough. >> well, i think in the employment context there's no question that the plaintiff was directly injured by the unconstitutional condition. but to respond directly to your point, i think -- i don't think there's a serious concern here that there will be a flood of meritless lawsuits or anything like that. that's primarily for two reasons. i take your point that this will expand the universe of litigation somewhat, but we already know in the statutory
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context the courts have recognized suits based on mistaken perception. and in that context we haven't seen any flood of meritless lawsuits. and with respect to claim specifically i think it's always been fairly easy for plaintiffs to allege particular affiliation of belief. i was in the republican party -- >> how do you know we haven't seen a flood of meritless lawsuits in that context? >> well, we haven't in the statutory context -- >> yeah, the one you were just referring to. >> well, we looked at it this, it doesn't come up very much, and when it does it -- >> you're looking at the reported decisions rather than -- you haven't done any see how many complaints have been filed in this type of case? >> no, but when you look reported decisions you're able to see courts look and some rejudgment in order to get rid of claims where the allegations aren't plausible or no evidence. i also think if the plaintiffs are going to have to allege that they actually held the beliefs in question, this is going to raise exactly the concern that justice kennedy mentioned earlier about oversight of
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beliefs, probing into beliefs. so this will affect all el rod cases. every time an el rod case is brought the defendant will have thein sent toif say -- >> are you saying there's a right to be secure from government oversight of your beliefs? >> well, i think the court recognized in o'hare that that is a particular concern in the affiliation context. we don't want courts to have to examine the nature and extent of the plaintiffs' beliefs or associations. >> i mean, that's a good idea maybe. and maybe it should be in some civil service act. but where do you find it in the first amendment? >> well, i think the right in question is the right not to be subject to a test of political affiliation -- >> that's not what you're concerned with the chill, or is there some other right that is somehow that's a first amendment right of the individual. you turn around and say the government cannot act for unconstitutional purpose but when you ask how is the defendant hurt, what is his right? that's still a little bit unclear to me.
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>> well, we think the defendant has been hurt in a constitutional sense because the way that the court has defined the right in question is the right not to be subject to a test of political affiliation when it's not a reasonable job requirement. i do think what the court said -- >> please. >> -- what the court said in o'hare essentially not necessarily talking about a separate right not to be subject to probing of police, but i think the court was suggesting we shouldn't have first amendment tests if we can help it that lead the court to have to probe into a plaintiff's beliefs. and that is exactly what will happen. >> i don't know why the right isn't the right to be free from arbitrary employment action based on a mistake. that's his objection here. you made a mistake. i thought i was being politically active, i wasn't. is there such a right under new jersey law? you can't be fired for an arbitrary reason? or you can't be fired for a mistaken reason? >> i think at least with respect to some job actions there would be such right in new jersey law. i'm not sure whether it would apply here. but i think the government of
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plaintiff's complaint here is not that he was fired for inaccurate reason. it's that he was demoted because for an improper purpose. the perception that he was engaging in protected first amendment activity. >> you brought up in your brief, i think, that the employer might have had a policy, i think you said we should re-man to determine whether this employer said nobody engages in political activity. >> well, i think if you for the petitioner here there would be a remand any way. >> is it based in the facts up to now did you think there was such a policy? >> well, so there is i think a factual dispute about this. so if you look at the summary judgment filings, this is document number 189 on pacer, there are in the respondent statement of undisputed facts some assertion that this was in fact a neutrality policy. you definitely have a dispute coming back from the other side petitioneys


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