courthousenews--2020-10-07--2020 Census Fight Likely Heading to Supreme Court

( CN ) — The Ninth Circuit denied the Trump administration ’ s attempt to shut down the 2020 Census early , saying the government did not do enough to justify the appeals court overturning a lower court ’ s preliminary injunction preventing them from ending the process early .
A three-judge panel ruled the Trump administration was unlikely to prevail on its claim that moving up the deadline for collecting census data did not amount to a final agency action .
“ The government has not made a strong showing that it is likely to prevail on appeal on @ @ @ @ @ @ @ ’ s merits ruling , ” the judges wrote in the unanimous 21-page decision .
The ruling means that an appeal to the U.S. Supreme Court is likely , as Sopan Joshi , the U.S. Attorney who argued for the administration during oral argument on Monday asked for an expeditious decision so an appeal could be entered in a timely manner .
While the Ninth Circuit affirmed the decision to prevent the data collection process from concluding prematurely on Sept. 30 instead of Oct. 31. , the panel said the lower court overstepped @ @ @ @ @ @ @ government to ignore the deadline of Dec. 31 for the entire census process .
“ The December 31 , 2020 , deadline is nearly three months away , ” the circuit judges wrote .
“ As we have already stated , predictions as to whether it can still be attained are speculative and unstable .
And any harm from governmental attempts to meet the December 31 date are likely less irreparable than the injury from displacing the October 31 data collection endpoint.
” In other words , if the court were to allow @ @ @ @ @ @ @ the data collection point early , the plaintiffs in the case — a consortium of civil rights groups , cities and counties — would suffer irreparable harm .
That ’ s because once the data processing part of the census process begins , it is difficult to go back in the field and finish data collection for a variety of reasons , including the fact that the field workers are let go as soon as data collection concludes .
However , if the courts later concluded the Dec. 31 was too soon , @ @ @ @ @ @ @ or continue the data collection process .
Despite the panel ’ s refusal to require the U.S. Census Bureau to ignore the Dec. 31 deadline , the plaintiffs prevailed on the central question of whether the bureau should be able to close the data collection period prematurely .
The legal issues come amid a backdrop of political concerns over the way the Trump administration has conducted the 2020 Census .
The census not only serves to give a reliable indication of population levels and demographics but also determines funding allocation for federal dollars @ @ @ @ @ @ @ process .
Apportionment refers to how many Congressional seats are awarded to each state based on their respective populations .
As the Trump administration unsuccessfully attempted to put a citizenship question on the census questionnaire , critics maintain that Trump is committed to undercounting minority communities in places like New York and California , states that are generally hostile to his policy agenda .
If so-called blue states like California and New York saw their congressional delegations reduced , it could help tip the balance of power toward the GOP in the House @ @ @ @ @ @ @ dismissed critics of its census plans and contends it has recorded the data for 99 % of the state population in 43 states and Puerto Rico and the District of Columbia .
The lowest state , Louisiana , is at 97 % , according to Joshi .
The preliminary injunction means that data collection workers will remain in the field until Oct. 31 , unless the appeal to the U.S. Supreme Court is successful .

The Ninth Circuit denied the Trump administration’s attempt to shut down the 2020 Census early, saying the government did not do enough to justify the appeals court overturning a lower court’s preliminary injunction preventing them from ending the process early.
(CN) — The Ninth Circuit denied the Trump administration’s attempt to shut down the 2020 Census early, saying the government did not do enough to justify the appeals court overturning a lower court’s preliminary injunction preventing them from ending the process early.
A three-judge panel ruled the Trump administration was unlikely to prevail on its claim that moving up the deadline for collecting census data did not amount to a final agency action.
“The government has not made a strong showing that it is likely to prevail on appeal on its primary challenge to the district court’s merits ruling,” the judges wrote in the unanimous 21-page decision.
The ruling means that an appeal to the U.S. Supreme Court is likely, as Sopan Joshi, the U.S. Attorney who argued for the administration during oral argument on Monday asked for an expeditious decision so an appeal could be entered in a timely manner.
While the Ninth Circuit affirmed the decision to prevent the data collection process from concluding prematurely on Sept. 30 instead of Oct. 31., the panel said the lower court overstepped its bounds when it also ordered the government to ignore the deadline of Dec. 31 for the entire census process.
“The December 31, 2020, deadline is nearly three months away,” the circuit judges wrote. “As we have already stated, predictions as to whether it can still be attained are speculative and unstable. And any harm from governmental attempts to meet the December 31 date are likely less irreparable than the injury from displacing the October 31 data collection endpoint.”
In other words, if the court were to allow the U.S. Census Bureau to close down the data collection point early, the plaintiffs in the case — a consortium of civil rights groups, cities and counties — would suffer irreparable harm.
That’s because once the data processing part of the census process begins, it is difficult to go back in the field and finish data collection for a variety of reasons, including the fact that the field workers are let go as soon as data collection concludes.
However, if the courts later concluded the Dec. 31 was too soon, it would not be difficult to restart or continue the data collection process.
Despite the panel’s refusal to require the U.S. Census Bureau to ignore the Dec. 31 deadline, the plaintiffs prevailed on the central question of whether the bureau should be able to close the data collection period prematurely.
The legal issues come amid a backdrop of political concerns over the way the Trump administration has conducted the 2020 Census. The census not only serves to give a reliable indication of population levels and demographics but also determines funding allocation for federal dollars and grants as well as the apportionment process.
Apportionment refers to how many Congressional seats are awarded to each state based on their respective populations. As the Trump administration unsuccessfully attempted to put a citizenship question on the census questionnaire, critics maintain that Trump is committed to undercounting minority communities in places like New York and California, states that are generally hostile to his policy agenda.
If so-called blue states like California and New York saw their congressional delegations reduced, it could help tip the balance of power toward the GOP in the House of Representatives.
The Trump administration has dismissed critics of its census plans and contends it has recorded the data for 99% of the state population in 43 states and Puerto Rico and the District of Columbia.
The lowest state, Louisiana, is at 97%, according to Joshi.
The preliminary injunction means that data collection workers will remain in the field until Oct. 31, unless the appeal to the U.S. Supreme Court is successful.


Gun Violence

PHILADELPHIA — Philadelphia sued the commonwealth of Pennsylvania on behalf of gun violence victims , claiming the Legislature refuses to @ @ @ @ @ and prevents local governments from enacting policies shown to save lives .

The technical storage or access that is used exclusively for statistical purposes.
The technical storage or access that is used exclusively for anonymous statistical purposes. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, information stored or retrieved for this purpose alone cannot usually be used to identify you.


courthousenews--2020-10-08--Black Man Sues Texas City After Cops Led Him by Rope Through Streets

GALVESTON , Texas ( CN ) — A Black man whose arrest by Galveston police last year thrust him into the national spotlight because bystanders filmed the horseback-mounted officers leading him with a rope “ as though he was a slave ” sued the city Wednesday .
Then homeless and suffering from mental illness , Donald Neely , 44 , was arrested for trespassing Aug. 3 , 2019 by white Galveston police officers Patrick Brosch and Amanda Lohmann .
“ Brosch and Lohmann handcuffed Neely , tied to a rope to the handcuffs and led him down Market Street in @ @ @ @ @ @ @ horses , ” the lawsuit states .
Galveston , a laid-back island city of 50,000 residents that looks out on the Gulf of Mexico , is the birthplace of Juneteenth .
Each year , Black Americans across the country celebrate June 19 , 1865 , the day Union soldiers came to town , announced the Civil War had ended and ordered the state ’ s 250,000 slaves be freed , news that reached the city more than two years after President Abraham Lincoln ’ s Emancipation Proclamation .
Footage of Neely ’ s @ @ @ @ @ @ @ caused a public relations nightmare for the Galveston Police Department , whose Chief Vernon Hale , a Black man , quickly apologized for the poor judgment he said his officers showed by not waiting for a squad car to take Neely to jail .
Civil rights attorney Ben Crump , who represents the families of Breonna Taylor and George Floyd , whose deaths this year at the hands of white police have fueled the Black Lives Matter movement , took Neely on as a client .
Crump held a press conference in Galveston @ @ @ @ @ @ @ told the police department he would lead a march through the city if it did not immediately release the officers ’ body-cam footage .
City officials tapped the Texas Rangers and Galveston County Sheriff ’ s Office to investigate the arrest and said they would not release the footage until the agencies finished their inquiry .
When Crump led more than 200 protesters down the city ’ s palm tree-lined streets on Sept. 15 , 2019 , Neely was nowhere to be found .
“ He didn ’ t want that to happen @ @ @ @ @ @ @ said in an interview Thursday .
“ He said it was hard enough when people were staring at him when he was being walked down the street , ” she added .
“ Then when he saw when he was on television it just makes him cringe…He doesn ’ t want the protesting .
He doesn ’ t want to raise a ruckus .
He doesn ’ t want any of that.
” Ketterman said a former client who is a friend of Neely ’ s sister put her in touch with the @ @ @ @ @ @ @ of Crump .
The transition went off without a hitch , Ketterman said , because the contract Crump had Neely sign was not done correctly .
“ None of their documents were even legally binding , ” she said .
Once a gainfully employed welder , Neely ’ s struggles with mental illness and homelessness are evident in his numerous arrests for trespassing by Galveston police going back to 1996 .
Ketterman said he is now living with his sister and is on a list for public housing .
“ He ’ s @ @ @ @ @ @ @ criminal case I got dismissed four or five months ago , ” she said .
A city spokeswoman did not reply late Wednesday when asked if the officers who arrested Neely were disciplined , if the city has changed its policies in response to the controversy and for a comment on the lawsuit .
The city has not formally apologized to Neely and no officers were disciplined for how they treated him , according to his attorney , who said he ’ s content to stay out of the spotlight , but he @ @ @ @ @ @ @ and to be the catalyst for Galveston police reforms .
“ You know somebody like Donald Neely could get a decent chunk of money like that and it could last forever , ” Ketterman said .
“ He ’ s just a very simple guy .
It ’ s not like he ’ d take the money and buy a car or anything .
It most likely would not change his lifestyle at all , except not have to worry.
” He seeks mental anguish damages on claims of assault , infliction of @ @ @ @ @ @ @ .
Both the city and its police department are named defendants .
The city released the body-cam footage of the arrest Oct. 2 of last year .

A Black man whose arrest by Galveston police last year thrust him into the national spotlight because bystanders filmed the horseback-mounted officers leading him with a rope “as though he was a slave” sued the city Wednesday.
GALVESTON, Texas (CN) — A Black man whose arrest by Galveston police last year thrust him into the national spotlight because bystanders filmed the horseback-mounted officers leading him with a rope “as though he was a slave” sued the city Wednesday.
Then homeless and suffering from mental illness, Donald Neely, 44, was arrested for trespassing Aug. 3, 2019 by white Galveston police officers Patrick Brosch and Amanda Lohmann.
“Brosch and Lohmann handcuffed Neely, tied to a rope to the handcuffs and led him down Market Street in Galveston, Texas, while riding their horses,” the lawsuit states.
Galveston, a laid-back island city of 50,000 residents that looks out on the Gulf of Mexico, is the birthplace of Juneteenth.
Each year, Black Americans across the country celebrate June 19, 1865, the day Union soldiers came to town, announced the Civil War had ended and ordered the state’s 250,000 slaves be freed, news that reached the city more than two years after President Abraham Lincoln’s Emancipation Proclamation.
Footage of Neely’s arrest went viral on social media and caused a public relations nightmare for the Galveston Police Department, whose Chief Vernon Hale, a Black man, quickly apologized for the poor judgment he said his officers showed by not waiting for a squad car to take Neely to jail.
Civil rights attorney Ben Crump, who represents the families of Breonna Taylor and George Floyd, whose deaths this year at the hands of white police have fueled the Black Lives Matter movement, took Neely on as a client.
Crump held a press conference in Galveston shortly after Neely’s arrest and told the police department he would lead a march through the city if it did not immediately release the officers’ body-cam footage.
City officials tapped the Texas Rangers and Galveston County Sheriff’s Office to investigate the arrest and said they would not release the footage until the agencies finished their inquiry.
When Crump led more than 200 protesters down the city’s palm tree-lined streets on Sept. 15, 2019, Neely was nowhere to be found.
“He didn’t want that to happen,” his new attorney Julie Ketterman said in an interview Thursday.
“He said it was hard enough when people were staring at him when he was being walked down the street,” she added. “Then when he saw when he was on television it just makes him cringe…He doesn’t want the protesting. He doesn’t want to raise a ruckus. He doesn’t want any of that.”
Ketterman said a former client who is a friend of Neely’s sister put her in touch with the family and they hired her in place of Crump.
The transition went off without a hitch, Ketterman said, because the contract Crump had Neely sign was not done correctly.
“None of their documents were even legally binding,” she said.
Once a gainfully employed welder, Neely’s struggles with mental illness and homelessness are evident in his numerous arrests for trespassing by Galveston police going back to 1996.
Ketterman said he is now living with his sister and is on a list for public housing.
“He’s taking his meds and everything. The criminal case I got dismissed four or five months ago,” she said.
A city spokeswoman did not reply late Wednesday when asked if the officers who arrested Neely were disciplined, if the city has changed its policies in response to the controversy and for a comment on the lawsuit.
The city has not formally apologized to Neely and no officers were disciplined for how they treated him, according to his attorney, who said he’s content to stay out of the spotlight, but he would like to get a decent settlement and to be the catalyst for Galveston police reforms.
“You know somebody like Donald Neely could get a decent chunk of money like that and it could last forever,” Ketterman said. “He’s just a very simple guy. It’s not like he’d take the money and buy a car or anything. It most likely would not change his lifestyle at all, except not have to worry.”
He seeks mental anguish damages on claims of assault, infliction of emotional distress, malicious prosecution and negligence. Both the city and its police department are named defendants.
A status conference is set for Jan. 7, 2021.
The city released the body-cam footage of the arrest Oct. 2 of last year.


courthousenews--2020-10-08--Feds Seize Over 90 Fake News Sites Belonging to Iran

( CN ) — The U.S. government has seized nearly 100 domain names used by a branch of Iran ’ s armed forces that officials said Wednesday were being used to conduct a disinformation campaign featuring fake news sites targeting the United States and other countries .
Iran ’ s Islamic Revolutionary Guard Corps has long been recognized as a prominent arm of the Iranian government and was officially designated as a terrorist organization by the United States government last year .
It found its online influence diminished Wednesday when U.S. officials took control of 92 domain names previously controlled @ @ @ @ @ @ @ enforcement officials .
In an announcement made in part by U.S. Attorney David Anderson , officials seized the websites after evidence came to light that they were being utilized by IRGC to spread Iranian propaganda .
Seizure documents state that at least four of the captured domain names falsely masqueraded themselves as legitimate news outlets but were in fact being used to target the United States and attempted to influence domestic and foreign policy through misinformation — a direct violation of the Foreign Agents Registration Act .
The remaining sites , according to @ @ @ @ @ @ @ misinformation in other parts of the world , notably around Western Europe , the Middle East and Southeast Asia .
“ Today we are 92 domains closer to shutting down Iran ’ s worldwide disinformation campaign , ” Anderson said in a press release .
“ This important work will continue .
Iran can not be allowed to hide behind fake news sites .
If Iran wants to be heard using U.S. facilities , it must reveal its true colors.
” Central to officials ’ actions on Wednesday is the International Emergency Economic @ @ @ @ @ @ @ prohibits unauthorized exports of goods or services to Iran from the United States or from a United States citizen .
Under this statute another rule , called the Iranian Transactions and Sanctions Regulations , was created to ensure that certain services couldn ’ t be provided to the Iranian government without the proper licenses .
On top of operating websites that sought to spread Iranian propaganda without disclosing to the public who was behind the misinformation , these sites were also operated without the proper licenses , giving officials the ability to seize @ @ @ @ @ @ @ FARA and IEEPA .
Assistant Attorney General John Demers said it was a combination of these laws that allowed the government to take such decisive action .
“ Fake news organizations have become a new outlet for disinformation spread by authoritarian countries as they continue to try to undermine our democracy , ” Demers said .
“ Today ’ s actions show that we can use a variety of laws to vindicate the value of transparency.
” Officials also reported that on top of maintaining the propaganda domains , the IRGC has also @ @ @ @ @ @ @ number of other known terrorist groups , most notably Hizballah , Hamas and the Taliban .
FBI Special Agent John Bennett said given that the investigation into the domains began after officials received information from Google , it has become more critical than ever that law enforcement maintains a close relationship with the private sector to ensure these improperly held websites do not go unnoticed .
“ These relationships enable a quick exchange of information to better protect against threats to the nation ’ s security and our democratic processes .
The FBI @ @ @ @ @ @ @ about the information they find and share on social media , ” Bennett said .
After Wednesday ’ s actions , potential visitors to any of the 92 sites are now met with a straightforward message : a disclaimer that under the terms of warrant , the websites are now inaccessible and have been seized by the FBI .

The U.S. government has seized nearly 100 domain names used by a branch of Iran’s armed forces that officials said Wednesday were being used to conduct a disinformation campaign featuring fake news sites targeting the United States and other countries.
(CN) — The U.S. government has seized nearly 100 domain names used by a branch of Iran’s armed forces that officials said Wednesday were being used to conduct a disinformation campaign featuring fake news sites targeting the United States and other countries.
Iran’s Islamic Revolutionary Guard Corps has long been recognized as a prominent arm of the Iranian government and was officially designated as a terrorist organization by the United States government last year.
It found its online influence diminished Wednesday when U.S. officials took control of 92 domain names previously controlled by the organization, according to law enforcement officials.
In an announcement made in part by U.S. Attorney David Anderson, officials seized the websites after evidence came to light that they were being utilized by IRGC to spread Iranian propaganda.
Seizure documents state that at least four of the captured domain names falsely masqueraded themselves as legitimate news outlets but were in fact being used to target the United States and attempted to influence domestic and foreign policy through misinformation — a direct violation of the Foreign Agents Registration Act.
The remaining sites, according to officials, were focused largely on spreading misinformation in other parts of the world, notably around Western Europe, the Middle East and Southeast Asia.
“Today we are 92 domains closer to shutting down Iran’s worldwide disinformation campaign,” Anderson said in a press release. “This important work will continue. Iran cannot be allowed to hide behind fake news sites. If Iran wants to be heard using U.S. facilities, it must reveal its true colors.”
Central to officials’ actions on Wednesday is the International Emergency Economic Powers Act, a law that specifically prohibits unauthorized exports of goods or services to Iran from the United States or from a United States citizen.
Under this statute another rule, called the Iranian Transactions and Sanctions Regulations, was created to ensure that certain services couldn’t be provided to the Iranian government without the proper licenses.
On top of operating websites that sought to spread Iranian propaganda without disclosing to the public who was behind the misinformation, these sites were also operated without the proper licenses, giving officials the ability to seize the domains under the authority of both FARA and IEEPA.
Assistant Attorney General John Demers said it was a combination of these laws that allowed the government to take such decisive action.
“Fake news organizations have become a new outlet for disinformation spread by authoritarian countries as they continue to try to undermine our democracy,” Demers said. “Today’s actions show that we can use a variety of laws to vindicate the value of transparency.”
Officials also reported that on top of maintaining the propaganda domains, the IRGC has also provided some degree of support to a number of other known terrorist groups, most notably Hizballah, Hamas and the Taliban.
FBI Special Agent John Bennett said given that the investigation into the domains began after officials received information from Google, it has become more critical than ever that law enforcement maintains a close relationship with the private sector to ensure these improperly held websites do not go unnoticed.
“These relationships enable a quick exchange of information to better protect against threats to the nation’s security and our democratic processes. The FBI also urges the public to remain vigilant about the information they find and share on social media,” Bennett said.
After Wednesday’s actions, potential visitors to any of the 92 sites are now met with a straightforward message: a disclaimer that under the terms of warrant, the websites are now inaccessible and have been seized by the FBI.


courthousenews--2020-10-08--Harris and Pence Face Off in a More Civil Debate

SALT LAKE CITY ( CN ) — Vice President Mike Pence and Senator Kamala Harris tightened their laces for a much anticipated , sole vice-presidential debate that was more civil than last week ’ s presidential face-off .
The sprawling blocks of Salt Lake City , planned by Mormon settlers for family farmers to turn cattle without “ resorting to profanity , ” morphed from a pandemic lull to boisterous buzz in the hours leading to the showdown .
The University of Utah , founded in 1850 and a 2002 Olympic site , was in tight lockdown ahead of the @ @ @ @ @ @ @ edge of the campus , trading barbs and shouting over one another , a scene much like last week ’ s presidential debate in Ohio .
Debate attendees , winners of a ticket lottery , and media surrounding the hall on President ’ s Circle donned salmon-colored surgical masks issued by the host university .
Moderator Susan Page , Washington bureau chief for USA Today , called seats “ the most exclusive tickets ” as she greeted the “ small and socially-distanced ” audience .
Pence invited Ann Marie Dorn , the widow @ @ @ @ @ @ @ Dorn , who was shot to death during protests in June , and the parents of Kayla Mueller , a humanitarian aid worker who was taken captive and killed by Islamic State militants .
Pence and Harris sat 12-feet and 3-inches apart at desks flanked by a duo of plexiglass screens .
“ These are tumultuous times , ” Page said , urging debate civility unlike the melee of President Donald Trump and Joe Biden on Sept. 29 .
Harris , first to speak during the nine-segment event , calmly looked into television @ @ @ @ @ @ @ save our county ” amid ongoing pandemic uncertainties .
Pence , in turn on Covid-19 , the administration ’ s response and death toll , said President Trump “ put the safety of America first.
” “ Literally tens of millions of doses of a vaccine ” will be available “ by the end of this year , ” Pence added .
Neither candidate immediately spoke out of turn or over one another .
Until they did .
“ Mr .
Vice President I ’ m speaking , ” Harris said , hand @ @ @ @ @ @ @ in during her second stint on the mic .
“ I ’ m speaking.
” Page sternly put a stop to the ruckus , which ebbed and flowed through the evening .
Page was largely hushed as moderator over the first half of the debate , which featured topics of race and the justice system , the economy , health care , jobs , taxes and foreign policy .
On a Biden-Harris plan to combat the pandemic , Pence scoffed and called it “ plagiarism.
” “ When you look at the Biden @ @ @ @ @ @ @ it reads an awful lot like what President Trump and I and our task force have been doing every step of the way.
” “ It would be really great to know who the president of the United States and the commander-in-chief owes money to , ” she said .
“ Is he making those decisions in the best interest of the American people or self-interest ?
” The pair continued to spar on climate change .
“ The climate is changing .
But the issue is , what ’ s the cause @ @ @ @ @ @ @ it ?
, ” Pence said .
“ President Trump has made it clear that we ’ re going to continue to listen to the science.
” “ We don ’ t need a massive $ 2 trillion Green New Deal that would impose all new mandates on American businesses and American families , ” he added .
“ We have seen a pattern with this administration , which is they don ’ t believe in science , ” Harris replied .
The candidates appeared practiced , and polished , throughout the event @ @ @ @ @ @ @ the trappings that marred round one of Trump-Biden .
The most heartfelt moment may well have been as Harris , her steely eyes welled with tears , detailed the killing of George Floyd , a Black man , by police in Minnesota .
“ People around our country of every race , of every age , of every gender , perfect strangers to each other marches shoulder-to-shoulder , arm-in-arm fighting for us to finally achieve that ideal of equal justice under law , ” Harris said .
“ We always must fight for @ @ @ @ @ @ @ including the fight to achieve our ideals.
” Pence responded coldly , “ there ’ s no excuse for the rioting and looting that followed , ” citing a Minneapolis hair salon that was “ burned to the ground ” after Floyd ’ s death .
“ We don ’ t have to choose between supporting law enforcement and supporting our African-American community , ” Pence added .
Online commentators made note of a fly that rested on Pence ’ s head for about two minutes , unnoticed by the vice president .
@ @ @ @ @ @ @ campaign took advantage of the moment and offered a flyswatter for sale on its website with “ Truth over flies ” printed on the handle .
Karen Pence joined her husband onstage immediately following the debate .
She did not wear a mask .
In an official release following the debate , Biden said Harris , “ nailed it.
” “ She made a fierce , compelling case in front of the American people and reminded us that , with good governance and respectable leadership , our country ’ s best days still @ @ @ @ @ @ @ President Trump repeatedly took to Twitter , his preferred platform , during the debate .
“ Mike Pence WON BIG !
, ” Trump , who is recovering from a coronavirus infection , tweeted from the White House .
The second presidential debate , and third of four Commission of Presidential Debates events , is slated for Oct. 15 in Miami .

Golden hour sunlight blanketed the columns of Kingsbury Hall on the University of Utah campus Wednesday evening, as Vice President Mike Pence and Senator Kamala Harris tightened their laces for a much anticipated, sole vice-presidential debate.
SALT LAKE CITY (CN) — Vice President Mike Pence and Senator Kamala Harris tightened their laces for a much anticipated, sole vice-presidential debate that was more civil than last week’s presidential face-off.
The sprawling blocks of Salt Lake City, planned by Mormon settlers for family farmers to turn cattle without “resorting to profanity,” morphed from a pandemic lull to boisterous buzz in the hours leading to the showdown.
The University of Utah, founded in 1850 and a 2002 Olympic site, was in tight lockdown ahead of the contest.
Dueling protests camped at the edge of the campus, trading barbs and shouting over one another, a scene much like last week’s presidential debate in Ohio.
Debate attendees, winners of a ticket lottery, and media surrounding the hall on President’s Circle donned salmon-colored surgical masks issued by the host university.
Moderator Susan Page, Washington bureau chief for USA Today, called seats “the most exclusive tickets” as she greeted the “small and socially-distanced” audience.
Harris’ guests included state Rep. Angela Romero and Deborah Gatrell, a 21-year veteran and high school teacher.
Pence invited Ann Marie Dorn, the widow of retired St. Louis police captain David Dorn, who was shot to death during protests in June, and the parents of Kayla Mueller, a humanitarian aid worker who was taken captive and killed by Islamic State militants.
Pence and Harris sat 12-feet and 3-inches apart at desks flanked by a duo of plexiglass screens.
“These are tumultuous times,” Page said, urging debate civility unlike the melee of President Donald Trump and Joe Biden on Sept. 29.
Harris, first to speak during the nine-segment event, calmly looked into television cameras while addressing a need to “save our county” amid ongoing pandemic uncertainties.
Pence, in turn on Covid-19, the administration’s response and death toll, said President Trump “put the safety of America first.”
“Literally tens of millions of doses of a vaccine” will be available “by the end of this year,” Pence added.
Neither candidate immediately spoke out of turn or over one another.
Until they did.
“Mr. Vice President I’m speaking,” Harris said, hand in the air, as Pence chimed in during her second stint on the mic. “I’m speaking.”
Page sternly put a stop to the ruckus, which ebbed and flowed through the evening.
Pence interrupted 10 times to Harris’ five.
Page was largely hushed as moderator over the first half of the debate, which featured topics of race and the justice system, the economy, health care, jobs, taxes and foreign policy.
On a Biden-Harris plan to combat the pandemic, Pence scoffed and called it “plagiarism.”
“When you look at the Biden plan,” he said, "it reads an awful lot like what President Trump and I and our task force have been doing every step of the way.”
Harris later lobbed a return haymaker over Trump’s murky tax records.
“It would be really great to know who the president of the United States and the commander-in-chief owes money to,” she said. “Is he making those decisions in the best interest of the American people or self-interest?”
The pair continued to spar on climate change.
"The climate is changing. But the issue is, what's the cause? And what do we do about it?,” Pence said. “President Trump has made it clear that we're going to continue to listen to the science."
“We don't need a massive $2 trillion Green New Deal that would impose all new mandates on American businesses and American families,” he added.
"We have seen a pattern with this administration, which is they don't believe in science,” Harris replied.
The candidates appeared practiced, and polished, throughout the event, delivering points with ease and avoiding the trappings that marred round one of Trump-Biden.
The most heartfelt moment may well have been as Harris, her steely eyes welled with tears, detailed the killing of George Floyd, a Black man, by police in Minnesota.
“People around our country of every race, of every age, of every gender, perfect strangers to each other marches shoulder-to-shoulder, arm-in-arm fighting for us to finally achieve that ideal of equal justice under law,” Harris said. “We always must fight for the values that we hold dear, including the fight to achieve our ideals.”
Pence responded coldly, “there’s no excuse for the rioting and looting that followed,” citing a Minneapolis hair salon that was “burned to the ground” after Floyd’s death.
“We don't have to choose between supporting law enforcement and supporting our African-American community,” Pence added.
Online commentators made note of a fly that rested on Pence’s head for about two minutes, unnoticed by the vice president.
Immediately following the debate, the Biden campaign took advantage of the moment and offered a flyswatter for sale on its website with “Truth over flies” printed on the handle.
Karen Pence joined her husband onstage immediately following the debate. She did not wear a mask.
Harris’ husband, Doug Emhoff, sported a salmon-colored mask.
In an official release following the debate, Biden said Harris, “nailed it.”
“She made a fierce, compelling case in front of the American people and reminded us that, with good governance and respectable leadership, our country's best days still lie ahead,” Biden added.
President Trump repeatedly took to Twitter, his preferred platform, during the debate.
“Mike Pence WON BIG!,” Trump, who is recovering from a coronavirus infection, tweeted from the White House.
The second presidential debate, and third of four Commission of Presidential Debates events, is slated for Oct. 15 in Miami.


courthousenews--2020-10-08--Biden Leads Trump in Decisive Battleground State, Polls Show

( CN ) — New polling released Wednesday shows Joe Biden continues to put the pressure on President Donald Trump in crucial battleground states as the president remains sidelined from the coronavirus .
The polls , conducted by The New York Times/Siena College , were taken after Trump announced he tested positive for Covid-19 but before he returned to the White House from the Walter Reed Medical Center for treatment .
In Nevada , where Democratic candidate Hillary Clinton won by two percentage points in 2016 , Biden leads Trump 48 % to 42 % .
Biden remains in a @ @ @ @ @ @ @ , holding a slim one point advantage over the incumbent , well within the poll ’ s margin of error .
President Trump won the Buckeye State in 2016 by about eight percentage points , but the pandemic continues to influence the minds and lives of voters .
Six percent of Nevada voters and 7 % of Ohio voters remain undecided .
The margin of error for the polls was plus or minus 4.3 percentage points .
Trump ’ s handling of the pandemic has had an impact on voters .
About 20 @ @ @ @ @ @ @ and Ohio admitted the president did not take adequate precautions to protect himself from Covid-19 .
In Nevada , voters trust Biden to confront the pandemic better by a 10-point margin and by an 8-point difference in Ohio .
Among all voters , 62 % from Nevada and 58 % from Ohio said President Trump failed to take the necessary measures to protect himself from the coronavirus .
But one-third of those polled from each state maintained he did what he could .
Some of those Trump supporters polled , 37 % in @ @ @ @ @ @ @ conceded his large rallies where people congregated closely without masks were not the best idea in the Covid era .
When voters were asked how a candidate should campaign in the age of Covid-19 , 20 % of Ohio voters and 28 % of Nevadans said it would be fine to appear in person before large crowds .
A decisive 65 % of Ohioans and 58 % of Nevada voters said candidates should campaign only in front of reduced groups that practice social distancing .
Reflecting the stance projected from the president that @ @ @ @ @ @ @ quickly , Trump supporters still have faith their leader will get better soon .
Republicans , by a margin of 79-10 % in Ohio , and 84-10 % in Nevada , are convinced he will rapidly recover from the virus that has killed more than 211,000 and infected more than 7.5 million Americans since March .
Biden is attracting a lot of support from those in 2016 who cast ballots for third-party candidates or who simply did not vote .
In Ohio , 51 % of third-party voters are backing the former vice @ @ @ @ @ @ @ President Trump .
Biden has the support of Nevada third-party voters by a 19-point margin , 45 % to 26 % .
Biden is doing well with women voters overall where he holds an 11-point edge in Ohio and a 14-point advantage in Nevada .
Suburban voters from both states are flocking to him by a wide margin .
He leads Trump by 22 points in Ohio and 32 points in Nevada .

New polling released Wednesday shows Joe Biden continues to put the pressure on President Donald Trump in crucial battleground states as the president remains sidelined from the coronavirus.
(CN) — New polling released Wednesday shows Joe Biden continues to put the pressure on President Donald Trump in crucial battleground states as the president remains sidelined from the coronavirus.
The polls, conducted by The New York Times/Siena College, were taken after Trump announced he tested positive for Covid-19 but before he returned to the White House from the Walter Reed Medical Center for treatment.
In Nevada, where Democratic candidate Hillary Clinton won by two percentage points in 2016, Biden leads Trump 48% to 42%. Biden remains in a fierce fight with the president in Ohio, holding a slim one point advantage over the incumbent, well within the poll’s margin of error.
President Trump won the Buckeye State in 2016 by about eight percentage points, but the pandemic continues to influence the minds and lives of voters. Six percent of Nevada voters and 7% of Ohio voters remain undecided. The margin of error for the polls was plus or minus 4.3 percentage points.
Trump’s handling of the pandemic has had an impact on voters. About 20% of Trump supporters from both Nevada and Ohio admitted the president did not take adequate precautions to protect himself from Covid-19. In Nevada, voters trust Biden to confront the pandemic better by a 10-point margin and by an 8-point difference in Ohio.
Robert Alexander, professor of political science at Ohio Northern University, thinks Trump is not confronting reality.
“President Trump has not forcefully argued for mask wearing and his rallies have not adhered to the social distancing guidelines suggested by the CDC. Yet, polls consistently show that more than 7 in 10 Americans report supporting mask mandates in these unprecedented times,” he wrote in an email.
Among all voters, 62% from Nevada and 58% from Ohio said President Trump failed to take the necessary measures to protect himself from the coronavirus. But one-third of those polled from each state maintained he did what he could.
Some of those Trump supporters polled, 37% in Ohio and 22% in Nevada, conceded his large rallies where people congregated closely without masks were not the best idea in the Covid era.
When voters were asked how a candidate should campaign in the age of Covid-19, 20% of Ohio voters and 28% of Nevadans said it would be fine to appear in person before large crowds.
A decisive 65% of Ohioans and 58% of Nevada voters said candidates should campaign only in front of reduced groups that practice social distancing.
Alexander believes that Trump downplaying the virus has caused an erosion of support.
“It is difficult to square the president telling Americans to not let coronavirus dominate our lives when in fact, signs of the pandemic are everywhere,” the professor said. “This can be seen in many ways, from disruptions in schools, in sports--from little league to the professional ranks--with great economic uncertainty, and of course with our public health. Most all Americans know someone who has been affected by the toll of Covid-19.”
Reflecting the stance projected from the president that he would bounce back from his illness quickly, Trump supporters still have faith their leader will get better soon.
Republicans, by a margin of 79-10% in Ohio, and 84-10% in Nevada, are convinced he will rapidly recover from the virus that has killed more than 211,000 and infected more than 7.5 million Americans since March.
Alexander said that is a sign of the times.
“Partisanship is an awfully strong filter these days,” he said. “One's partisanship is really dictating how they are viewing most all events in the public sphere. Democrats and Republicans look at the same event and see very different things.”
Biden is attracting a lot of support from those in 2016 who cast ballots for third-party candidates or who simply did not vote.
In Ohio, 51% of third-party voters are backing the former vice president, compared to 16% for President Trump. Biden has the support of Nevada third-party voters by a 19-point margin, 45% to 26%.
Biden is doing well with women voters overall where he holds an 11-point edge in Ohio and a 14-point advantage in Nevada. Suburban voters from both states are flocking to him by a wide margin. He leads Trump by 22 points in Ohio and 32 points in Nevada.
Alexander said the writing is on the wall.
“President Trump's numbers have been particularly poor among women and older voters,” the professor said. “You also see that far fewer Americans are considering voting third party compared to 2016. It would take quite a turnaround for Trump to earn a second term.”


Predator Kills

ALBUQUERQUE — The conservation group Wildearth Guardians sued the U.S. Department of Agriculture on Thursday , claiming the agency approved @ @ @ @ @ numerous wildlife species in New Mexico using decades-old science and without environmental review .


Ballot Drop Boxes

CLEVELAND — The Ohio Secretary of State can not enforce a directive that prohibits county boards of elections from installing @ @ @ @ @ other than the board ’ s office , a federal court in the state ruled @ @ @ @ @ to “ vindicate a vital constitutional right.
” The secretary also can not prohibit a @ @ @ @ @ staff for off-site ballot delivery , ” the court ruled .

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courthousenews--2020-10-09--California Courts Covid Update

California Courts Covid Update

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courthousenews--2020-10-09--Former GOP Fundraiser Charged With Acting as Foreign Agent

( CN ) — Federal authorities charged former top fundraiser for the Republican National Committee Elliott Broidy with conspiring to act as an unregistered foreign agent over his alleged involvement in a secretive effort to lobby the Trump administration .
In court filings unsealed on Thursday , prosecutors say Broidy did not register as a foreign agent when he unsuccessfully lobbied the Justice Department to drop its probe into the $ 4.5 billion embezzlement scandal involving 1MDB — Malaysia ’ s state-owned investment fund .
The Foreign Agents Registration Act requires lobbyists to disclose work for foreign entities .
The @ @ @ @ @ @ @ public integrity branch alleged that Broidy had leveraged his influence and access to President Donald Trump in order to secure payments from a Malaysian businessman .
The businessman , Jho Low , who is not named in the indictment , was previously charged with “ orchestrating and executing a multi-billion-dollar embezzlement scheme from 1MDB.
” The documents claim that the businessman paid Broidy $ 6 million and promised another $ 75 million if he was successful in urging the Justice Department to stop the investigation into the alleged 1MDB scheme .
Nickie Mali @ @ @ @ @ @ @ George Higginbotham , who were also named in court documents , have already entered guilty pleas for their participation .
Higginbotham ’ s plea came in 2018 , while Davis ’ plea was entered in federal court in Hawaii this August .
In the filing in federal court in Washington D.C. on Thursday , Broidy is said to have unsuccessfully lobbied Trump and the Justice Department to arrange for the “ removal and return ” of a high-profile Chinese dissident .
The filing states that Broidy attempted to have the Chinese national , @ @ @ @ @ @ @ Bannon , deported from the U.S .
Accused by federal authorities of violating lobbying laws , Broidy is the latest 2016 Trump campaign associate to face criminal charges .
Among those are former campaign chairman Paul Manafort , deputy chairman Rick Gates , chief executive Steve Bannon , Roger Stone , adviser Michael Flynn and deputy finance chairman Michael Cohen .
Broidy , who raised funds for Trump ’ s 2016 campaign , was working as the RNC ’ s deputy finance chairman in 2018 when he stepped down due to claims that @ @ @ @ @ @ @ he had allegedly impregnated .

Federal authorities charged former top fundraiser for the Republican National Committee Elliott Broidy with conspiring to act as an unregistered foreign agent over his alleged involvement in a secretive effort to lobby the Trump administration.
(CN) — Federal authorities charged former top fundraiser for the Republican National Committee Elliott Broidy with conspiring to act as an unregistered foreign agent over his alleged involvement in a secretive effort to lobby the Trump administration.
In court filings unsealed on Thursday, prosecutors say Broidy did not register as a foreign agent when he unsuccessfully lobbied the Justice Department to drop its probe into the $4.5 billion embezzlement scandal involving 1MDB — Malaysia's state-owned investment fund.
The Foreign Agents Registration Act requires lobbyists to disclose work for foreign entities.
The prosecutors from the Justice Department’s public integrity branch alleged that Broidy had leveraged his influence and access to President Donald Trump in order to secure payments from a Malaysian businessman.
The businessman, Jho Low, who is not named in the indictment, was previously charged with "orchestrating and executing a multi-billion-dollar embezzlement scheme from 1MDB."
Low has denied any wrongdoing.
The documents claim that the businessman paid Broidy $6 million and promised another $75 million if he was successful in urging the Justice Department to stop the investigation into the alleged 1MDB scheme.
Nickie Mali Lum Davis and former Justice Department official George Higginbotham, who were also named in court documents, have already entered guilty pleas for their participation.
Higginbotham's plea came in 2018, while Davis’ plea was entered in federal court in Hawaii this August.
In the filing in federal court in Washington D.C. on Thursday, Broidy is said to have unsuccessfully lobbied Trump and the Justice Department to arrange for the “removal and return” of a high-profile Chinese dissident.
The filing states that Broidy attempted to have the Chinese national, Guo Wengui, an associate of Steve Bannon, deported from the U.S.
Accused by federal authorities of violating lobbying laws, Broidy is the latest 2016 Trump campaign associate to face criminal charges.
Among those are former campaign chairman Paul Manafort, deputy chairman Rick Gates, chief executive Steve Bannon, Roger Stone, adviser Michael Flynn and deputy finance chairman Michael Cohen.
Broidy, who raised funds for Trump’s 2016 campaign, was working as the RNC’s deputy finance chairman in 2018 when he stepped down due to claims that he paid off a Playboy Playmate who he had allegedly impregnated.


Rent Control

SAN FRANCISCO — The Ninth Circuit upheld the dismissal of a mobile home park ’ s suit against the city @ @ @ @ @ rent control ordinance .
The mobile home park argued the ordinance constitutes an unlawful taking @ @ @ @ @ are precluded as they were dismissed in state court .


CNN

WEST PALM BEACH , Fla. — A Florida appeals court upheld an order compelling the production of email and texts @ @ @ @ @ its journalists in a defamation case brought against them by a physician relating to statements @ @ @ @ @ s reporting on a hospital ’ s infant mortality rate .


Bank of Internet

SAN FRANCISCO — The Ninth Circuit revived a securities fraud class action brought by shareholders who claim BofI Holdings falsely @ @ @ @ @ — which operated the “ Bank of Internet ” — as being a safer investment @ @ @ @ @ company ’ s stock price fell by more than 30 % after the market learned @ @ @ @ @ allegations , which the shareholders can rely on as a corrective disclosure to prove loss @ @


Voter Registration

HOUSTON — A Texas appeals court ruled that the Public Interest Legal Foundation , a conservative legal group based in @ @ @ @ @ County voter lack standing to obtain mandamus relief on their claims that the county ’ @ @ @ @ @ to perform her duty to “ reject and challenge all voter registration applications that do @ @ @ @ @ ’ answer to the question ‘ Are you a United States citizen ?
’ ”


courthousenews--2020-10-08--Canadian High Court Urged to Find Native Americans in US Have Rights in Canada

( CN ) — On a cloudy morning a decade ago , Rick Desautel turned himself in for illegally killing an elk that roamed his ancestral hunting grounds .
That day , he intentionally launched a decade of legal wrangling that on Thursday landed him in the Supreme Court of Canada .
Desautel , whose Sinixt homelands straddle Canada ’ s border with the United States , hopes the case will establish Sinixt rights in British Columbia .
In video footage documenting the 2010 hunt , Desautel explains the plan .
“ We ’ re going up north , we @ @ @ @ @ @ @ on our ancestral hunting grounds , ” Desautel , who lives in Washington state , tells the passenger in his truck .
High mountains and pine forests whir by in the background .
“ Up to what is called ‘ above the border.
’ ” The boundaries of Sinixt territory predated Canada and the United States by thousands of years .
“ I call it the north-north half , ” he adds with a laugh .
Desautel ’ s strategic hunting trip , planned in advance as a test case by Desautel and @ @ @ @ @ @ @ in Canada to determine whether the constitutional term “ aboriginal people of Canada ” includes indigenous groups that lived in what is now Canada before European contact , but now live in the United States .
The Sinixt are not alone in this category , because of widespread policies like forced relocation to reservations , mandatory residential boarding schools and laws against the collective holding of land and communal feasting .
The Sinixt are one of the 12 tribes the Canadian and U.S. governments forced onto the Colville Reservation in northeastern Washington state @ @ @ @ @ @ @ Eighty-four years later , after requiring their move to a reservation on the other side of the U.S.-Canada border , the Canadian government declared the Sinixt “ extinct ” in Canada .
And in 1982 , the Constitution Act laid out which indigenous groups Canada would recognize .
The Sinixt were not on the list .
Desautel , a designated ceremonial hunter who , according to Sinixt tradition , is authorized to collect food for the group , was acquitted in 2017 on charges of hunting as a “ non-resident.
” The government @ @ @ @ @ @ @ , claiming the Sinixt had voluntarily left Canada in order to “ enthusiastically embrace farming ” in Washington state .
But Justice Lisa Mrozinski of the provincial court in Nelson , British Columbia , found persuasive Desautel ’ s description of the importance of hunting where his ancestors are buried and that doing so fit with the history of the Sinixt people in the area .
The government has since lost appeals in both the B.C .
Supreme Court and the B.C .
Court of Appeal .
On Thursday , it argued its @ @ @ @ @ @ @ .
Despite restrictions due to the Covid-19 pandemic , Desautel was in Ottowa for Thursday ’ s hearing , having quarantined for weeks to travel there .
The border between the U.S and Canada remains closed .
Because of the restrictions , many other Sinixt and supporters who wanted to attend were not able to go .
Desautel ’ s attorney Mark Underhill told the justices the Sinixt never agreed to leave their ancestral homeland and that they never gave up their right to hunt there .
“ They did not leave voluntarily @ @ @ @ @ @ @ was a move that was the best out of a variety of bad choices .
It was , to be blunt , dark times for aboriginal peoples.
” Arguing for the Crown , attorney Glen Thompson called Desautel a “ foreign national , ” and said , therefore , that his hunt had been illegal .
“ Here , we have a group wholly located in a foreign country claiming to be an aboriginal group , ” Thompson said .
“ If you say , as he does , that aboriginal peoples of @ @ @ @ @ @ @ say that Canada ’ s borders don ’ t matter .
The sovereignty of Canada gets erased.
” Several of the nine justices questioned that approach , noting overwhelming evidence the Sinixt had lived in British Columbia for thousands of years .
“ What we ’ re reconciling is the prior occupation of Canadian aboriginal peoples with Canadian sovereignty , ” Justice Russell Brown told Thompson .
“ The point where I ’ m struggling to accept your interpretation is that the source of their right is prior occupation .
It predates the @ @ @ @ @ @ @ are presumed to have survived Canadian sovereignty.
” Thompson and other attorneys for the Crown and the Canadian provinces warned that a ruling in favor of Desautel would mean a maelstrom of difficulty for the government , which would then be required to consult with other tribes that straddle Canada ’ s border over issues pertaining to their land in Canada .
Underhill said such fears were overblown .
“ Those practical problems of who to consult and where are problems we face every day , ” Underhill said .
“ We already @ @ @ @ @ @ @ not any reason to say these are not aboriginal peoples and they don ’ t have rights.
” The court took the arguments under advisement and did not say when it would issue a ruling .
Desautel has been fighting for the rights of the Sinixt for decades .
In 1989 , he was part of a blockade that tried to halt construction of a highway through Sinixt territory that disturbed their 4,000-year-old burial ground .
Construction crews had unearthed the remains of six adults and one child , which the government then @ @ @ @ @ @ @ Desautel and other Sinixt activists were able to reclaim and rebury the bones of their ancestors .
They were not able to stop construction of the highway .
In 2015 , Prime Minister Justin Trudeau accepted the final reportof Canada ’ s Truth and Reconciliation Commission , as part of the Indian Residential Schools Settlement Agreement .
Among its 94 recommendations , the report called upon the government to accept indigenous land claims when the “ claimant has established occupation over a particular territory at a particular point in time , ” rather @ @ @ @ @ @ @ they have occupied an area continuously since before European contact .
“ The government of Canada is committed to walking a path of partnership and friendship with indigenous peoples , ” Trudeau said at the time .
And in 2016 , Canada adopted the United Nations declaration on the rights of indigenous peoples , which , among other things , says indigenous peoples have the right to protect their culture and traditions and prohibits nation-states from preventing the preservation of indigenous heritage .
Regardless , all levels of the Canadian government have fought @ @ @ @ @ @ @ over the last decade .
Though the final outcome of the case has not yet been determined , Sinixt descendant Rodney Cawston , chairman of the Confederated Tribes of Colville , said in the 2019 documentary “ Older Than the Crown ” that it has already restored the sense that what Desautel called “ the north-north half ” — the land now called British Columbia — is home .
“ No matter what the outcome of this case is , I think we ’ re there , ” Cawston said .
“ Our @ @ @ @ @ @ @ again , and I don ’ t see us ever leaving that country again .
I think our presence is there and it will continue to be there for many generations to come .
”

On a cloudy morning a decade ago, Rick Desautel turned himself in for illegally killing an elk that roamed his ancestral hunting grounds. That day, he intentionally launched a decade of legal wrangling that on Thursday landed him in the Supreme Court of Canada.
(CN) — On a cloudy morning a decade ago, Rick Desautel turned himself in for illegally killing an elk that roamed his ancestral hunting grounds. That day, he intentionally launched a decade of legal wrangling that on Thursday landed him in the Supreme Court of Canada.
Desautel, whose Sinixt homelands straddle Canada’s border with the United States, hopes the case will establish Sinixt rights in British Columbia.
In video footage documenting the 2010 hunt, Desautel explains the plan.
“We’re going up north, we’re going to hunt some game on our ancestral hunting grounds,” Desautel, who lives in Washington state, tells the passenger in his truck. High mountains and pine forests whir by in the background. “Up to what is called ‘above the border.’”
The boundaries of Sinixt territory predated Canada and the United States by thousands of years.
“I call it the north-north half,” he adds with a laugh.
Desautel’s strategic hunting trip, planned in advance as a test case by Desautel and other Sinixt leaders, has forced courts in Canada to determine whether the constitutional term “aboriginal people of Canada” includes indigenous groups that lived in what is now Canada before European contact, but now live in the United States. The Sinixt are not alone in this category, because of widespread policies like forced relocation to reservations, mandatory residential boarding schools and laws against the collective holding of land and communal feasting.
The Sinixt are one of the 12 tribes the Canadian and U.S. governments forced onto the Colville Reservation in northeastern Washington state, after creating it in 1872. Eighty-four years later, after requiring their move to a reservation on the other side of the U.S.-Canada border, the Canadian government declared the Sinixt “extinct” in Canada. And in 1982, the Constitution Act laid out which indigenous groups Canada would recognize. The Sinixt were not on the list.
Desautel, a designated ceremonial hunter who, according to Sinixt tradition, is authorized to collect food for the group, was acquitted in 2017 on charges of hunting as a “non-resident.” The government argued Desautel had no indigenous hunting rights, claiming the Sinixt had voluntarily left Canada in order to “enthusiastically embrace farming” in Washington state. But Justice Lisa Mrozinski of the provincial court in Nelson, British Columbia, found persuasive Desautel’s description of the importance of hunting where his ancestors are buried and that doing so fit with the history of the Sinixt people in the area.
The government has since lost appeals in both the B.C. Supreme Court and the B.C. Court of Appeal. On Thursday, it argued its case before the Supreme Court of Canada.
Despite restrictions due to the Covid-19 pandemic, Desautel was in Ottowa for Thursday’s hearing, having quarantined for weeks to travel there. The border between the U.S and Canada remains closed. Because of the restrictions, many other Sinixt and supporters who wanted to attend were not able to go.
Desautel’s attorney Mark Underhill told the justices the Sinixt never agreed to leave their ancestral homeland and that they never gave up their right to hunt there.
“They did not leave voluntarily,” Underhill said. “It was a move that was the best out of a variety of bad choices. It was, to be blunt, dark times for aboriginal peoples.”
Arguing for the Crown, attorney Glen Thompson called Desautel a “foreign national,” and said, therefore, that his hunt had been illegal.
“Here, we have a group wholly located in a foreign country claiming to be an aboriginal group,” Thompson said. “If you say, as he does, that aboriginal peoples of Canada can live anywhere, you effectively say that Canada’s borders don’t matter. The sovereignty of Canada gets erased.”
Several of the nine justices questioned that approach, noting overwhelming evidence the Sinixt had lived in British Columbia for thousands of years.
“What we’re reconciling is the prior occupation of Canadian aboriginal peoples with Canadian sovereignty,” Justice Russell Brown told Thompson. “The point where I’m struggling to accept your interpretation is that the source of their right is prior occupation. It predates the existence of Canadian legal order and they are presumed to have survived Canadian sovereignty.”
Thompson and other attorneys for the Crown and the Canadian provinces warned that a ruling in favor of Desautel would mean a maelstrom of difficulty for the government, which would then be required to consult with other tribes that straddle Canada’s border over issues pertaining to their land in Canada.
Underhill said such fears were overblown.
“Those practical problems of who to consult and where are problems we face every day,” Underhill said. “We already deal with those issues. They are not any reason to say these are not aboriginal peoples and they don’t have rights.”
The court took the arguments under advisement and did not say when it would issue a ruling.
Desautel has been fighting for the rights of the Sinixt for decades. In 1989, he was part of a blockade that tried to halt construction of a highway through Sinixt territory that disturbed their 4,000-year-old burial ground. Construction crews had unearthed the remains of six adults and one child, which the government then held in a museum in Victoria. Desautel and other Sinixt activists were able to reclaim and rebury the bones of their ancestors. They were not able to stop construction of the highway.
In 2015, Prime Minister Justin Trudeau accepted the final reportof Canada’s Truth and Reconciliation Commission, as part of the Indian Residential Schools Settlement Agreement. Among its 94 recommendations, the report called upon the government to accept indigenous land claims when the “claimant has established occupation over a particular territory at a particular point in time,” rather than requiring indigenous groups to show that they have occupied an area continuously since before European contact.
“The government of Canada is committed to walking a path of partnership and friendship with indigenous peoples,” Trudeau said at the time.
And in 2016, Canada adopted the United Nations declaration on the rights of indigenous peoples, which, among other things, says indigenous peoples have the right to protect their culture and traditions and prohibits nation-states from preventing the preservation of indigenous heritage.
Regardless, all levels of the Canadian government have fought Desautel’s case through multiple appeals over the last decade.
Though the final outcome of the case has not yet been determined, Sinixt descendant Rodney Cawston, chairman of the Confederated Tribes of Colville, said in the 2019 documentary “Older Than the Crown” that it has already restored the sense that what Desautel called “the north-north half” — the land now called British Columbia — is home.
“No matter what the outcome of this case is, I think we’re there,” Cawston said. “Our people got that taste of being home again, and I don’t see us ever leaving that country again. I think our presence is there and it will continue to be there for many generations to come.”


courthousenews--2020-10-08--California Argues Trump Can’t Discount Undocumented From Census

( CN ) — Attorneys for the city of San Jose , California argued during a remote hearing Thursday that the Trump administration should not be able to exclude undocumented individuals from the 2020 Census process , in a case that figures to go all the way to the U.S. Supreme Court .
“ There is not a single instance of the framers or anyone since referring to inhabitants as only citizens of the state , ” said Attorney Richard Bress , arguing on behalf of the plaintiffs .
Bress said that because the laws regarding the Congressionally-mandated decadal census @ @ @ @ @ @ @ then it is crucial that undocumented persons in the United States are included in the count .
The stakes are high as the census not only reveals population levels and demographic information but also influences federal spending allocation and the distribution of federal grants to states .
More important still , it guides the apportionment process or the process by which congressional seats are divided among the state , which in turn affects the fundamental balance of power in the House of Representatives .
Because the case directly deals with apportionment , U.S. @ @ @ @ @ @ @ and Senior U.S .
Circuit Judge Richard Clifton presided over the remote hearing .
The judges ’ questions mostly centered on the question of timing , whether they should rule now or wait until after the apportionment process is complete before deciding whether to include the undocumented .
“ The course the Supreme Court has charted indicates we should wait until after the apportionment process is complete , ” said Sopan Joshi , arguing on behalf of the Trump administration .
The Trump administration isn ’ t sure which categories of undocumented it @ @ @ @ @ @ @ as Joshi argued the statute gives U.S. Secretary of Commerce Wilbur Ross considerable latitude to decide .
For instance , the administration may seek only to exclude individuals who have received their final deportation papers with an exhausted appeals process .
Another possibility , Joshi said , was that the administration may only seek to exclude those currently in ICE detention facilities .
Matthew Wise , arguing on behalf of plaintiffs , said there is “ no ambiguity ” as it relates to the Trump administration ’ s efforts to exclude as many @ @ @ @ @ @ @ is not an administration that is in the process of pondering what is feasible in the presidential memo , ” Wise said .
The memo refers to an order given by President Donald Trump instructing the Commerce Department to make every effort to exclusively count those with current citizenship status .
While Joshi made it appear as though the administration was in the process of carefully weighing different factors when trying to decide who and who not to count , Wise said that was only a posture made for the purposes of the @ @ @ @ @ @ @ it is in press briefings or court filings , has repeatedly doubled down on their intention to implement this memo , ” Wise said .
The plaintiffs include the state of California , which has a material interest in the outcome of the case as a Trump administration victory would almost ensure it would lose one seat in the House of Representatives , potentially eroding the power of the California delegation .
California Attorney General Xavier Beccera , who filed the lawsuit in July said Trump ’ s action would strip California cities @ @ @ @ @ @ @ , transportation infrastructure , public parks and more .
“ It would deny California what it has a right to and what it has earned , ” Becerra said in July .
On Thursday , Bress pressed the judges to decide before the apportionment process was complete .
“ If we postpone this review , we risk a constitutional crisis , ” he said .
Wise argued that state redistricting and other important actions predicated on an accurate census count will be unnecessarily delayed by waiting until after apportionment is complete .
Joshi @ @ @ @ @ @ @ either way , as challenges are likely to come from both sides and the Supreme Court may be the ultimate arbiter .
It has already taken up another census-related case in federal court in California .
The other case presided over by Koh , has to do with the census timeline .
The Commerce Department attempted to compress the window in which enumerators collect census data , trying to end that period on Sept. 30 .
Koh enjoined the department from doing so and made the new deadline Oct. 31 .
The Trump @ @ @ @ @ @ @ Supreme Court .
The state of California is not the only jurisdiction to try and thwart Trump ’ s census plans as it relates to counting illegal immigrants .
A coalition of nearly 30 states and local governments including New York , Colorado , Chicago and Phoenix filed a similar legal challenge last week to the Trump administration ’ s move .
The coalition wants a federal judge to block the change because it violates the Constitution ’ s enumeration clause , the Fifth Amendment ’ s due process clause , the 10th @ @ @ @ @ @ @ rights , the 14th Amendment and the Administrative Procedure Act .
The city of Atlanta filed its own legal challenge of the memorandum shortly after Trump announced it .
San Jose , California , King County , Washington state and Arlington County , Virginia , have also piled on .

Attorneys for the city of San Jose, California argued during a remote hearing Thursday that the Trump administration should not be able to exclude undocumented individuals from the 2020 Census process, in a case that figures to go all the way to the U.S. Supreme Court.
(CN) — Attorneys for the city of San Jose, California argued during a remote hearing Thursday that the Trump administration should not be able to exclude undocumented individuals from the 2020 Census process, in a case that figures to go all the way to the U.S. Supreme Court.
“There is not a single instance of the framers or anyone since referring to inhabitants as only citizens of the state,” said Attorney Richard Bress, arguing on behalf of the plaintiffs.
Bress said that because the laws regarding the Congressionally-mandated decadal census refer to inhabitants and not citizens, then it is crucial that undocumented persons in the United States are included in the count.
The stakes are high as the census not only reveals population levels and demographic information but also influences federal spending allocation and the distribution of federal grants to states.
More important still, it guides the apportionment process or the process by which congressional seats are divided among the state, which in turn affects the fundamental balance of power in the House of Representatives.
Because the case directly deals with apportionment, U.S. District Judges Lucy Koh and Edward Chen and Senior U.S. Circuit Judge Richard Clifton presided over the remote hearing.
The judges’ questions mostly centered on the question of timing, whether they should rule now or wait until after the apportionment process is complete before deciding whether to include the undocumented.
“The course the Supreme Court has charted indicates we should wait until after the apportionment process is complete,” said Sopan Joshi, arguing on behalf of the Trump administration.
The Trump administration isn’t sure which categories of undocumented it will seek to include or discount, as Joshi argued the statute gives U.S. Secretary of Commerce Wilbur Ross considerable latitude to decide.
For instance, the administration may seek only to exclude individuals who have received their final deportation papers with an exhausted appeals process. Another possibility, Joshi said, was that the administration may only seek to exclude those currently in ICE detention facilities.
Matthew Wise, arguing on behalf of plaintiffs, said there is “no ambiguity” as it relates to the Trump administration's efforts to exclude as many undocumented people as possible.
“This is not an administration that is in the process of pondering what is feasible in the presidential memo,” Wise said.
The memo refers to an order given by President Donald Trump instructing the Commerce Department to make every effort to exclusively count those with current citizenship status.
While Joshi made it appear as though the administration was in the process of carefully weighing different factors when trying to decide who and who not to count, Wise said that was only a posture made for the purposes of the hearing.
“The administration, whether it is in press briefings or court filings, has repeatedly doubled down on their intention to implement this memo,” Wise said.
The plaintiffs include the state of California, which has a material interest in the outcome of the case as a Trump administration victory would almost ensure it would lose one seat in the House of Representatives, potentially eroding the power of the California delegation.
California Attorney General Xavier Beccera, who filed the lawsuit in July said Trump’s action would strip California cities and counties of critical funding for schools, transportation infrastructure, public parks and more.
“It would deny California what it has a right to and what it has earned,” Becerra said in July.
On Thursday, Bress pressed the judges to decide before the apportionment process was complete.
“If we postpone this review, we risk a constitutional crisis,” he said.
Wise argued that state redistricting and other important actions predicated on an accurate census count will be unnecessarily delayed by waiting until after apportionment is complete.
Joshi said states will likely have to wait either way, as challenges are likely to come from both sides and the Supreme Court may be the ultimate arbiter.
It has already taken up another census-related case in federal court in California. The other case presided over by Koh, has to do with the census timeline. The Commerce Department attempted to compress the window in which enumerators collect census data, trying to end that period on Sept. 30. Koh enjoined the department from doing so and made the new deadline Oct. 31.
The Trump administration has appealed the decision to the Supreme Court.
The state of California is not the only jurisdiction to try and thwart Trump’s census plans as it relates to counting illegal immigrants.
A coalition of nearly 30 states and local governments including New York, Colorado, Chicago and Phoenix filed a similar legal challenge last week to the Trump administration’s move. The coalition wants a federal judge to block the change because it violates the Constitution’s enumeration clause, the Fifth Amendment’s due process clause, the 10th Amendment’s protections of states’ rights, the 14th Amendment and the Administrative Procedure Act.
The city of Atlanta filed its own legal challenge of the memorandum shortly after Trump announced it. San Jose, California, King County, Washington state and Arlington County, Virginia, have also piled on.


courthousenews--2020-10-09--Supreme Court Rejects Trump Request to Restrict Medication Abortions

( CN ) — The Supreme Court on Thursday decided to continue allowing women seeking medication abortions to procure abortion pills through the mail during the coronavirus pandemic .
In an unsigned 5-page order released Thursday evening , the high court upheld a federal judge ’ s decision to block a federal requirement that women pick up such pills in person .
The Trump administration had requested the court reinstate it .
“ Without indicating this Court ’ s views on the merits of the District Court ’ s order or injunction , a more comprehensive record would aid this @ @ @ @ @ @ @ order states .
The court effectively punts the issue back to the federal court , asking the district judge to reexamine the topic and issue a ruling within 40 days .
Justices Samuel Alito Jr. and Clarence Thomas dissented , with Alito saying the court was inconsistent in rulings related to the pandemic and that he would have granted the Trump administration ’ s request .
“ Under the approach recently taken by the Court in cases involving restrictions on First Amendment rights , the proper disposition of the Government ’ s stay @ @ @ @ @ @ @ ” Alito wrote .
“ But the Court is not willing to do that .
Nor is it willing to deny the application .
I see no reason for refusing to rule.
” Alito said the court ’ s failure to issue a ruling in the six weeks since the administration ’ s request effectively served as a denial .
“ For all practical purposes , there is little difference between what the court has done and an express denial of the government ’ s application , ” he wrote .
Medication abortions @ @ @ @ @ @ @ of pregnancy and roughly 60 % of abortions performed during that time use drugs rather than surgery .
A federal judge in July ruled that health care providers can mail the drug mifepristone to their patients .
Mifepristone is used in combination with the drug misoprostol to end pregnancy .

The Supreme Court on Thursday decided to continue allowing women seeking medication abortions to procure abortion pills through the mail during the coronavirus pandemic.
(CN) — The Supreme Court on Thursday decided to continue allowing women seeking medication abortions to procure abortion pills through the mail during the coronavirus pandemic.
In an unsigned 5-page order released Thursday evening, the high court upheld a federal judge's decision to block a federal requirement that women pick up such pills in person. The Trump administration had requested the court reinstate it.
"Without indicating this Court’s views on the merits of the District Court’s order or injunction, a more comprehensive record would aid this Court’s review," the order states.
The court effectively punts the issue back to the federal court, asking the district judge to reexamine the topic and issue a ruling within 40 days.
Justices Samuel Alito Jr. and Clarence Thomas dissented, with Alito saying the court was inconsistent in rulings related to the pandemic and that he would have granted the Trump administration's request.
"Under the approach recently taken by the Court in cases involving restrictions on First Amendment rights, the proper disposition of the Government’s stay application should be clear: grant," Alito wrote. "But the Court is not willing to do that. Nor is it willing to deny the application. I see no reason for refusing to rule."
Alito said the court's failure to issue a ruling in the six weeks since the administration's request effectively served as a denial.
“For all practical purposes, there is little difference between what the court has done and an express denial of the government’s application,” he wrote.
Medication abortions are allowed in the first 10 weeks of pregnancy and roughly 60% of abortions performed during that time use drugs rather than surgery.
A federal judge in July ruled that health care providers can mail the drug mifepristone to their patients. Mifepristone is used in combination with the drug misoprostol to end pregnancy.


courthousenews--2020-10-09--D.C. Circuit Unpacks Trump’s Pollution Plan Supplanting Obama Rules

WASHINGTON ( CN ) — In a marathon day of oral arguments on the Trump administration ’ s rollback of an Obama-era rule on power plant emissions , more than a dozen health and environmental groups argued new regulations brazenly fail to combat climate change .
The American Lung Association and the American Public Health Association first sued to challenge Trump ’ s Affordable Clean Energy , or ACE , rule in 2019 .
Dozens of parties jumped on the case and over 170 others filed amicus briefs in the legal showdown that came to a head in the Washington @ @ @ @ @ @ @ s like choosing a squirt gun to put out a five alarm fire .
EPA provides no reasoned explanation of how such a paltry remedy is appropriate given a record showing such an urgent problem , ” Sean Donahue argued for the health and environmental petitioners .
In a more than nine-hour hearing , challengers blasted the new ACE rule for failing to protect public health under the Clean Air Act .
They argued the EPA abdicated its duty to regulate carbon dioxide pollution from coal-fired power plants with the lenient regulations unveiled @ @ @ @ @ @ @ difference in net cumulative emissions between the new rule and the Obama-era Clean Power Plan is “ slight , ” telling the three-judge panel the energy industry has been effectively self-regulating and already exceeded the prior regulatory scheme ’ s 2030 goals .
But the lineup of parties urging the appeals court to hold the Trump administration to its regulatory duty to reduce carbon dioxide emissions warned the pollutant is a major contributor to climate change .
The Trump administration ’ s replacement rule drops all statewide emissions caps , giving state regulators @ @ @ @ @ @ @ pollution .
“ Without a minimum required level of reduction , EPA does open the door for states to set very lenient standards , contradicting the statutory design that all states must do their share to limit pollution that ’ s endangering public health and welfare , ” attorney Michael J. Myers argued for 30 city and state petitioners , among them California , Florida and New York .
Myers warned that ACE also prohibits states from trading emissions credits to meet reduction requirements , a practice with “ long-standing roots in the @ @ @ @ @ @ @ proven track record , ACE precludes trading because sources would comply to increasingly use a lower or zero carbon generation , not upgrading coal plants , ” he said .
The so-called generation shifting allows for plants to take advantage of more efficient energy generation by other sources on the power grid through trading .
“ The reason that sources have preferred generation shifting in similar schemes in the past is because it ’ s often cheaper to take advantage of another source ’ s more efficient generation than to be compelled to @ @ @ @ @ @ @ ” attorney Steven Wu argued for the city and state petitions .
In fact , the energy industry had asked the EPA before the Clean Power Plan was rolled out to incorporate trading into a regulatory scheme , as the agency eventually did under President Barack Obama .
Weighing in , energy companies hailing from coast to coast said generation shifting is an “ inescapable physical and operational reality ” on the power grid .
“ They [ EPA ] never grappled with the facts in the record as to what would be @ @ @ @ @ @ @ Poloncarz argued for the power companies .
Repealing the Obama rule , based on a statutory interpretation that it “ handcuffed the agency , ” the EPA considered a limited set of emissions reduction measures .
If the D.C .
Circuit finds the EPA wrongly interpreted the Clean Air Act , the challengers argued that would be enough to warrant remanding Trump ’ s rule to the agency to be rewritten .
Reinstating the Obama rule is no longer feasible because emission reductions deadlines have passed .
Arguing Obama ’ s plan was @ @ @ @ @ @ @ court the new rule allows states greater flexibility to implement regulatory plans , focused on plants installing new technology to decrease emissions .
Faced with sharp questioning from the judges , the Justice Department boldly defended the new rule .
“ It may be the case that the best system of emissions reduction is one that , once you consider all of the statutory factors , that there actually is not a best system of emissions reduction , that for a particular category of sources may actually move the needle , ” DOJ @ @ @ @ @ @ @ coal energy sources .
The new Trump rule , the American Lung Association has argued , “ will result in some fossil fuel plants running more often and delaying their retirement , which would mean increased emissions of dangerous pollution as compared to the Clean Power Plan.
” Along the line of that concern , U.S .
Circuit Judge Patricia Millett probed at the lifespan of a coal-fired plant .
While Brightbill could not answer the Obama appointee ’ s question , another attorney later informed the panel the fossil fuel plants typically @ @ @ @ @ @ @ a hypothetical where a coal-fired plant — “ hanging on by a shoestring ” facing rising competition from cleaner energy sources — can ’ t meet set emission reductions .
“ There ’ s no real standard here to violate , ” the judge said .
The Justice Department responded that the coal plant ’ s “ remaining useful life ” would be a factor .
“ But clearly that is a very broad discretionary branch of authority to states , your honor .
I would agree with that and that was Congress @ @ @ @ @ @ @ .
As the panel drilled the government for nearly an hour on the hypothetical , U.S .
Circuit Judge Justin Walker said the plan leaves it up to the EPA to approve or disapprove states ’ emission reduction plans , rather than setting nation-wide guidelines .
“ The EPA is going to have enormous discretion to do that — which is a lot of power to invest in the EPA to just say thumbs up or thumbs down , ” the judge said .
Trump ’ s newest appointee to the D.C .
@ @ @ @ @ @ @ this approach is defensible , but I haven ’ t heard the defense.
” Revealing equal concern with the ACE rule , Millett repeatedly said EPA seemed to be “ gilding the lily.
” U.S .
Circuit Judge Cornelia T.L .
Pillard , an Obama appointee , rounded out Thursday ’ s panel .
Millett closed out saying that after nine hours of oral arguments an opinion in American Lung Association et al v. EPA et al would be at least one month in coming .

In a marathon day of oral arguments on the Trump administration’s rollback of an Obama-era rule on power plant emissions, more than a dozen health and environmental groups argued new regulations brazenly fail to combat climate change.
WASHINGTON (CN) — In a marathon day of oral arguments on the Trump administration’s rollback of an Obama-era rule on power plant emissions, more than a dozen health and environmental groups argued new regulations brazenly fail to combat climate change.
The American Lung Association and the American Public Health Association first sued to challenge Trump’s Affordable Clean Energy, or ACE, rule in 2019. Dozens of parties jumped on the case and over 170 others filed amicus briefs in the legal showdown that came to a head in the Washington appeals court Thursday.
“It’s like choosing a squirt gun to put out a five alarm fire. EPA provides no reasoned explanation of how such a paltry remedy is appropriate given a record showing such an urgent problem,” Sean Donahue argued for the health and environmental petitioners.
In a more than nine-hour hearing, challengers blasted the new ACE rule for failing to protect public health under the Clean Air Act.
They argued the EPA abdicated its duty to regulate carbon dioxide pollution from coal-fired power plants with the lenient regulations unveiled last year.
The EPA argued the difference in net cumulative emissions between the new rule and the Obama-era Clean Power Plan is “slight,” telling the three-judge panel the energy industry has been effectively self-regulating and already exceeded the prior regulatory scheme’s 2030 goals.
But the lineup of parties urging the appeals court to hold the Trump administration to its regulatory duty to reduce carbon dioxide emissions warned the pollutant is a major contributor to climate change.
The Trump administration’s replacement rule drops all statewide emissions caps, giving state regulators greater autonomy and more time to reduce pollution.
“Without a minimum required level of reduction, EPA does open the door for states to set very lenient standards, contradicting the statutory design that all states must do their share to limit pollution that’s endangering public health and welfare,” attorney Michael J. Myers argued for 30 city and state petitioners, among them California, Florida and New York.
Myers warned that ACE also prohibits states from trading emissions credits to meet reduction requirements, a practice with “long-standing roots in the Clean Air Act.”
“Despite this proven track record, ACE precludes trading because sources would comply to increasingly use a lower or zero carbon generation, not upgrading coal plants,” he said.
The so-called generation shifting allows for plants to take advantage of more efficient energy generation by other sources on the power grid through trading.
“The reason that sources have preferred generation shifting in similar schemes in the past is because it’s often cheaper to take advantage of another source’s more efficient generation than to be compelled to install technology at your own plant,” attorney Steven Wu argued for the city and state petitions.
In fact, the energy industry had asked the EPA before the Clean Power Plan was rolled out to incorporate trading into a regulatory scheme, as the agency eventually did under President Barack Obama.
Weighing in, energy companies hailing from coast to coast said generation shifting is an “inescapable physical and operational reality” on the power grid.
“They [EPA] never grappled with the facts in the record as to what would be the best system,” attorney Kevin Poloncarz argued for the power companies.
Repealing the Obama rule, based on a statutory interpretation that it “handcuffed the agency,” the EPA considered a limited set of emissions reduction measures.
If the D.C. Circuit finds the EPA wrongly interpreted the Clean Air Act, the challengers argued that would be enough to warrant remanding Trump’s rule to the agency to be rewritten. Reinstating the Obama rule is no longer feasible because emission reductions deadlines have passed.
Arguing Obama’s plan was too aggressive, the EPA told the court the new rule allows states greater flexibility to implement regulatory plans, focused on plants installing new technology to decrease emissions.
Faced with sharp questioning from the judges, the Justice Department boldly defended the new rule.
“It may be the case that the best system of emissions reduction is one that, once you consider all of the statutory factors, that there actually is not a best system of emissions reduction, that for a particular category of sources may actually move the needle,” DOJ attorney Jonathan Brightbill said, referring to coal energy sources.
The new Trump rule, the American Lung Association has argued, “will result in some fossil fuel plants running more often and delaying their retirement, which would mean increased emissions of dangerous pollution as compared to the Clean Power Plan.”
Along the line of that concern, U.S. Circuit Judge Patricia Millett probed at the lifespan of a coal-fired plant.
While Brightbill could not answer the Obama appointee’s question, another attorney later informed the panel the fossil fuel plants typically operate around 40 years.
Millett posed a hypothetical where a coal-fired plant — “hanging on by a shoestring” facing rising competition from cleaner energy sources — can’t meet set emission reductions.
“There's no real standard here to violate,” the judge said.
The Justice Department responded that the coal plant’s “remaining useful life” would be a factor.
“But clearly that is a very broad discretionary branch of authority to states, your honor. I would agree with that and that was Congress’ policy choice,” Brightbill said.
As the panel drilled the government for nearly an hour on the hypothetical, U.S. Circuit Judge Justin Walker said the plan leaves it up to the EPA to approve or disapprove states’ emission reduction plans, rather than setting nation-wide guidelines.
“The EPA is going to have enormous discretion to do that — which is a lot of power to invest in the EPA to just say thumbs up or thumbs down,” the judge said.
Trump’s newest appointee to the D.C. Circuit, Walker added: “Maybe this approach is defensible, but I haven’t heard the defense.”
Revealing equal concern with the ACE rule, Millett repeatedly said EPA seemed to be “gilding the lily.”
U.S. Circuit Judge Cornelia T.L. Pillard, an Obama appointee, rounded out Thursday’s panel. Millett closed out saying that after nine hours of oral arguments an opinion in American Lung Association et al v. EPA et al would be at least one month in coming.