- Associated Press - Tuesday, October 13, 2015

Here are excerpts from recent editorials in Oklahoma newspapers:

The Journal Record, Oct. 12, 2015

Ignore the amateur referees

Sports officials have a saying: There are no bad calls, just close calls that didn’t go your way. But that’s of little consolation to the 18,000 amateur referees - also known as fans - sitting in the stands. They are ubiquitous and vociferous when the call doesn’t go their way.

Likewise, judicial rulings on contentious topics produce abundant amateur legal scholars. And few issues have produced more would-be lawyers than placement of the Ten Commandments monument.

After the rock was removed from Capitol grounds, the pro-monument crowd called immediately for a state constitutional amendment. That would require a vote of the people, but whipping Oklahomans into a pro-Christian frenzy isn’t exactly the challenge of the century. If it goes to a ballot, the granite slab bearing one Protestant version of the commandments will go back to the statehouse.

That’s understandable; the majority of Oklahomans do not think all religious references should be completely separated from public institutions. They sometimes point to the preamble of the state’s constitution, which cites the guidance of Almighty God, to shore up the case that it’s always been so. Or at least since 1907.

Christianity is clearly the dominant faith in Oklahoma, but it’s not the only one. Our national concern about the separation of church and state didn’t originate as a means to protect the state; rather, it was a path to protect freedom of religion. Fresh from a country that had plenty of experience with a national church, our forefathers didn’t want a similar institution here. They created a barrier between the government and religious institutions to ensure Americans could worship their god of choice.

Forget for a moment the second-guessing of the Oklahoma Supreme Court, the intently watching professionals with a much better view than the amateurs in the stands. It is imprudent to try to make Oklahoma a Christian state. As our early federal lawmakers knew, lack of religious freedom is a sure recipe for trouble, and Christian sects have their differences, too.

Like all Oklahomans, our elected officials may be dedicated adherents to their discipline of choice. They may attend services where and when they’d like. But at the Capitol, all Oklahomans must be represented equally, no matter their religion. And the only practical way to do that is to keep monuments to particular faiths on private ground.

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The Oklahoman, Oct. 13, 2015

Federal court panel bottles up administration’s water rules

Oklahoma officials have been among the most aggressive in fighting the Obama administration’s regulatory overreach through legal challenges. Not all those efforts have succeeded, which has led some to question whether the fights are worth the taxpayer cost. But a recent court victory proves the legal arguments against the Obama’s administration’s actions aren’t mere political posturing.

Last week, the Sixth U.S. Circuit Court of Appeals issued a nationwide stay that prevents the Environmental Protection Agency’s proposed “Waters of the United States” rule from taking effect. Oklahoma is among the states challenging the rule, which has the potential to treat ditches and normally dry land as navigable waters under federal regulation - with severe economic consequences.

The stay from the Cincinnati-based court doesn’t mean this fight is over, but it strongly indicates that appeals court judges believe those challenging the EPA regulations have a strong case. Indeed, in their 2-1 decision, the court majority concluded Oklahoma and other states challenging the EPA rule “have demonstrated a substantial possibility of success on the merits of their claims.”

Among other things, the states argue the EPA’s water rule is at odds with U.S. Supreme Court precedent in a case where wetlands regulation was overturned. The appeals majority effectively agreed, saying it “is far from clear that the new Rule’s distance limitations are harmonious” with the Supreme Court’s prior guidance.

But that’s not all. The appeals court also found “the rulemaking process by which the distance limitations were adopted is facially suspect.”

The states challenging the water rule note that when the proposed rule was published and submitted for public comment, it didn’t include any proposed distance limitations in its use of terms like “adjacent waters” and “significant nexus.” This effectively reduced citizens’ ability to provide feedback on those provisions.

Also, those challenging the rule argue that no specific scientific support was given for the rule’s distance limitations, making it “arbitrary or capricious” under federal law.

The Sixth Circuit majority found that the EPA had “not persuasively rebutted” those claims, and “failed to identify anything in the record that would substantiate a finding that the public had reasonably specific notice that the distance-based limitations adopted in the Rule were among the range of alternatives being considered.”

“Nor have respondents identified specific scientific support substantiating the reasonableness of the bright-line standards they ultimately chose,” the judges concluded.

The EPA’s own estimates indicate the proposed regulations will expand federal jurisdictional stream miles from 3.5 million to around 8.1 million. And that’s probably a conservative estimate. The language of the proposed rule indicates even prairie potholes may be declared “waters of the United States.” Federal water regulations could be imposed on normally dry land based on “physical indicators” of water flow, such as high-water marks. And those indicators can be “established” through computer programs. So even if no high-water mark exists, the government may still declare a property a “tributary” based on a computer simulation.

The appeals court judges wrote that the “sheer breadth of the ripple effects” that would be created by the water rule “counsels strongly in favor of maintaining the status quo for the time being.”

That’s charitable. A regulation this broad, this destructive and this nonsensical in its intellectual foundations should be overturned in full. For now, this stay is a welcome start.

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Tulsa World, Oct. 12, 2015

Federal government resolves huge lawsuit with Choctaws and Chickasaws.

The U.S. Department of Interior and the Choctaw and Chickasaw nations announced a $186 million settlement Tuesday, resolving decades of federal mismanagement of tribal assets.

The tribes filed suit in 2005, alleging the Interior Department failed to protect the tribes’ interests when it sold more than 1.3 million acres of southeastern Oklahoma timber land between 1908 and 1940.

Timber companies earned billions from the land, money attorneys for the Choctaws and Chickasaws argued belonged to the tribes.

Under the terms of the settlement, the Ada-based Chickasaw Nation will receive $46.5 million, and the Durant-based Choctaw Nation will receive $139.5 million. The settlement falls in line with other efforts by the federal government in recent years. In 2009, the Interior Department agreed to a $3.4 billion settlement to a case of alleged mismanagement of American Indian trust assets. The so-called Cobell case has been described as one of the largest class-action action cases in U.S. legal history. Tuesday’s agreement is the fifth largest tribal trust settlement to date.

Corrupt mismanagement of assets is part of the sordid history of decades of federal Indian policy.

At a Tuesday signing ceremony, Interior Secretary Sally Jewell said the latest settlement is an opportunity for the federal government to wipe “a black mark of history” from the record.

While the settlement doesn’t undo the wrong, it is important action and an opportunity for the tribes and the federal government to begin a new, healthier relationship.


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