William Perry Pendley, president of the Mountain States Legal Foundation, picked a good time to publish his new book, “Warriors for the West,” a history of some contentious Western legal cases.
Now is a good time for such a volume because so many of the issues in the book not only remain unresolved, most can be found on the front pages of today’s newspapers.
These include immigration, racial preferences, the scope of environmental laws, the limits of eminent domain and the boundaries of the federal commerce clause.
Pendley, along with the Mountain States Legal Foundation, has been in the middle of many of these fights. In his latest book (he has two others) Pendley gives the lion’s share of the credit to a string of clients who, because of their circumstances and principles, were willing to take on what they knew would be protracted and perhaps futile legal battles.
Many of these clients literally stumbled into the legal spotlight. For example, John Shuler found himself crosswise with the government after he killed a grizzly bear that was about to attack his sheep. The case dragged on for eight years, and while Shuler ultimately didn’t have to pay a fine for his acts, he failed in his attempt to get the government to pay his considerable attorney’s fees.
Stories like his are laced throughout the book and illustrate one of Pendley’s main points: Reliance on government agencies and on the federal and state court systems can be a very iffy proposition. Sometimes, there is a sweet victory, but often the result is merely delay or frustration.
One of Pendley’s complaints is that Congress too often writes ambiguous laws which are then twisted by regulatory agencies and later challenged by special interest groups, producing a legal mess that then empowers judges to impose their own rules. The U.S. Supreme Court, he argues, is only of occasional help in that it takes just a few cases each year, and even then is inconsistent in its application of existing case law.
Readers expecting to find a politically conservative tract will be disappointed. Pendley plays no favorites and is as hard on the Bush administration for its dealing with racial set-asides as he is on the Clinton administration for its misuse of the Antiquities Act.
Too many Coloradans are unfamiliar with the work of the Mountain States Legal Foundation. That’s too bad, because the organization has undoubtedly been on the right side of many legal disputes; without its assistance, many of these cases would never have seen the light of day.
The foundation has also assisted in a number of cases in which its clients were not directly involved. For example, it played a role in a case argued yesterday before the U.S. Supreme Court. Pendley’s organization filed a friend-of-the- court brief on behalf of a Michigan couple fined under the federal Clean Water Act for trying to develop private property that the federal government says is a wetland. The couple contends – and Mountain States Legal Foundation agrees – that because the couple’s land is 20 miles from the nearest navigable waterway, the Clean Water Act shouldn’t apply.
Many people, especially those who consider themselves “environmentalists,” might suppose the federal government has an obvious right to tell private property owners what they can and cannot develop when wetlands are involved.
The matter is not quite that simple, however. The language of the law doesn’t seem to include lands that are remote from navigable rivers. A past Supreme Court decision said there must be a “nexus” between the wetland and a waterway. In the prior case, the court was dealing with a pond that was right next to the river. The facts in the Michigan case are quite different. In resolving it, the court has an opportunity to say whether there are any limits on federal regulation and, if so, what they are.
Most of Pendley’s stories are closer to home than the Michigan case, but the theme that unites them is the same. The first step toward a better civil justice system is a good understanding of the way the current system works – or, more accurately, doesn’t work.
Al Knight of Fairplay (alknight@ mindspring.com) is a former member of The Post’s editorial-page staff. His columns appear on Wednesday.
