Author: Lindsey Welfley

By Catherine O. Danley

Northwest of Challis, in the Salmon River Mountains, an Australian mining company is opening a new cobalt mine in Idaho.[i] Jervois Global Ltd.’s mine sits along the Idaho Cobalt Belt – a 64 kilometer long stretch of cobalt and copper-bearing deposits in the historic Blackbird Mine area.[ii] It is the largest cobalt resource in the United States and Jervois is the first cobalt mine the U.S. has seen operating on its shores in decades.[iii] In fact, Jervois is one of only two mines in the world where cobalt is the principal product.[iv] The other is in Morocco.[v]

Interest in cobalt mining is rising alongside demand for clean energy infrastructure and consumer electronics, particularly as governments seek ways to secure renewable energy resources and reduce their carbon emissions impact. The rising demand for electric vehicles has been a major catalyst under the Biden administration to push for cobalt specifically. The Salmon River Mountains, however, aren’t the only source of cobalt deposits that are attracting mining interests. Minerals in the seabed have been considered a potential source of mining sites since the 1970s and 1980s when depressed metal prices had companies and countries looking to sea for new deposits. Deep sea technology just wasn’t up to the task to make mining economical, much less truly feasible.[vi]

The search for cobalt, and other minerals crucial to modern technology, may be changing that. This article will briefly discuss the rising demand for cobalt, the minerals of the seabed, and new developments unfolding in deep sea mining, international laws governing seabed resources, and the ongoing balancing act between environmental protections and the need for minerals in green energy markets.

Why Cobalt?

Cobalt is a key ingredient in lithium-ion batteries that powers much of our modern technology, including laptops, cell phones, and electric vehicles.[vii] Using cobalt stabilizes the battery’s chemistry, prevents fires, and allows the battery to hold a longer charge.[viii] Cobalt also allows manufacturers to add other materials – such as nickel – to help battery performance.[ix]

Electric vehicles and other forms of renewable energy technology have been on the rise for years, but recent legislation and modern drives towards green energy have been powerful catalysts to mineral demand.[x]

For example, the Inflation Reduction Act of 2022, passed last August, includes tax credit provisions for electric vehicle purchasers.[xi] These tax credits are part of the Biden administration’s goal to hit a 50% electric vehicle target of sales shares in the U.S. by 2030, and to cut U.S. vehicle emissions in half within the same time frame.[xii] It’s an ambitious goal dependent, at least in part, on the manufacturers’ ability to source cobalt and other minerals essential for electric vehicle production.

The Department of Energy also announced $3.16 billion from the Infrastructure Investment and Jobs Act will be used “to make more batteries and components in America, bolster domestic supply chains, create good-paying jobs, and help lower costs for families.”[xiii]

All of this manifests at a time where nations are looking for renewable energy solutions. Transitions to clean energy technology are expected to increase global demand for critical minerals by 400-600%, while battery minerals will increase as much as 4,000%.[xiv] Most of the world’s cobalt supply, however, is controlled abroad, which has raised national security concerns.[xv]

The Congo (Kinshasa) continues to be the leading source of cobalt production, accounting for 70% of the world’s production, while China remains the world’s leading producer of refined cobalt. [xvi] China is the world’s leading consumer as well.[xvii] Other key minerals are controlled overseas too. The U.S. imports most of its rare earth metals, with 74% coming from China, 8% from Malaysia, 5% from Estonia and Japan, and the remainder from a mix of nations.[xviii]

Rare earths serve diverse and highly specialized uses, such as construction of mobile phones, advanced motors, generators, oil-refinery catalysts, and superstrong magnets.[xix] Like cobalt, demand for rare earths is rising too: the estimated value of imported rare-earth compounds increased by 25% from 2021 to 2022 alone, and global mine production is estimated to have increased to 300,000 tons of rare earth oxide equivalent.[xx]

Idaho is beginning a new chapter in its mining history as “the world faces a myriad of challenges in transitioning to clean energy.” [xxi] The ocean floor just may be another source of minerals that “will help meet a massive new demand for electric vehicle (EV) battery metals.”[xxii]

Minerals of the Seabed

According to the U.S. Geological Survey, “[m]ore than 120 million tons of cobalt resources have been identified in polymetallic nodules and crusts on the floor of the Atlantic, Indian, and Pacific Oceans.”[xxiii] There are two types of mineral deposits mentioned in that data (nodules and crusts), which are located in different regions of the seabed. Polymetallic nodules are what they sound to be: varying sized “rocks” sitting scattered across the sediment of abyssal plains – a cold, dark, and flat expanse of seabed in the central Pacific.[xxiv]

Each nodule tends to contain “at least 27 percent manganese, about 1 percent each of copper and nickel, and 0.2 percent cobalt.”[xxv] Whereas cobalt crusts “grow on hard-rock substrates of volcanic origin by the precipitation of metals dissolved in seawater in areas of seamounts, ridges, [and] plateaus.”[xxvi] These deposits are found in international waters but sometimes fall into areas known as a country’s “Exclusive Economic Zone,” or EEZ. An EEZ is a zone of water that extends 200 nautical miles from a nation’s coast.[xxvii] Importantly, resources within a nation’s EEZ fall within that nation’s jurisdiction.

Just how much money is in seabed minerals? Some reports have estimated deep-sea minerals to be worth $150 trillion, or about “nine pounds of gold for every person on earth.”[xxviii] The trouble is access – technology simply hasn’t advanced yet to a degree that makes mining the deep sea economical.

It’s only been over the last few years that major technological developments have led to the possibility of commercially exploiting seabed minerals. One of the more recent milestones happened just last year. In May of 2022, The Metals Company, Inc. (Canada), and Allseas (a Swiss contractor) successfully completed deep-water tests with the Hidden Gem, “the world’s first fully operational deep-sea mineral production vessel.”[xxix]

Six months later, in November 2022, the Hidden Gem reached another milestone. Engineers drove a pilot collector across 80 kilometers of the Pacific seafloor and collected 4,500 tons of polymetallic nodules through a riser system to the surface production vessel.[xxx] The nodules were transported up 4.3 kilometers (2.6 miles) of riser pipe to the sea surface.[xxxi] The Hidden Gem’s pilot trials are the first integrated nodule collection tests since the 1970s to be conducted in the Clarion Clipperton Zone, a nodule-rich area of the central Pacific Ocean.[xxxii]

Uniform Rules Governing Deep Sea Mining

Deep sea mining doesn’t just require the technology and engineers to reach deep-sea minerals; there are layers of international rules and regulations governing seabed mineral rights. The United Nations Convention on the Law of the Sea (“UNCLOS”) governs deep sea mining of the “Area” – “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.”[xxxiii] Under UNCLOS, the international seabed and its resources are considered the common heritage of mankind.[xxxiv] This is a legal concept that dates back to ancient times, when the Roman jurist Marcianus wrote that the sea, its fish, and even coastal waters were “communis omnium naturali jure” or “common or open to all men by the operation of natural law.”[xxxv]  Because the oceans belonged to everyone, they could be appropriated by no one.[xxxvi]

Today, all Area activities are conducted for the benefit of all humanity. When a state mines the deep seabed it must distribute economic shares to developing nations, encourage and complete marine scientific research, take measures to protect the marine environment, promote the transfer of technology and scientific knowledge among other states, and promote the participation of developing states in activities within the Area.[xxxvii] The International Seabed Authority (“ISA”) is the governing authority charged with implementing each of these requirements, in addition to establishing rules and procedures for mining and mineral rights.[xxxviii]

In short, nations cannot lay direct claims to seabed resources outside of their jurisdiction, i.e. beyond the 200 nautical miles of their EEZ. They must seek mining claims through the ISA’s regulatory framework and the “Mining Code” – comprehensive mining rules, regulations, and procedures that apply to each type of mineral deposit in the seabed: polymetallic nodules, polymetallic sulfide deposits, and cobalt crusts.[xxxix] Coastal states can also seek to demonstrate an outer continental shelf that extends more than 200 nautical miles from its shores (again, an area traditionally beyond its jurisdiction) to obtain sovereign rights for exploration and exploitation of its natural resources.[xl]

To date, the ISA has entered into five exploration contracts for cobalt, including JOGMEC (Japan), COMRA (China), Russia, the Republic of Korea, and CPRM (Brazil).[xli] The ISA has entered into an additional 26 exploration contracts for polymetallic nodules (in the Clarion Clipperton Zone of the central Pacific Ocean) and polymetallic sulphides (deposits that build up beneath hydrothermal vents or “black smokers”).

You might notice that there’s a mix of private companies and foreign nations contracting with the ISA. Since 2010, both national agencies and private companies have been involved in exploration activities and contracting.[xlii] Sometimes international efforts overlap. The Metals Company, for example, is operating through its subsidiaries that hold exploration contracts and commercial rights to three areas within the Pacific’s Clarion Clipperton Zone. [xliii] It’s also sponsored by the governments of Nauru, Kiribati, and the Kingdom of Tonga.[xliv]

Where does the U.S. fall into all this deep-sea mineral exploration? The short answer is, we don’t. The United States has never ratified the United Nations Convention on the Law of the Sea, nor is it a member state of the ISA.[xlv] While the United States remains a consistent and official observer at ISA proceedings, we have yet to establish a legal regime or foundation to participate in seabed mineral extraction. Whether we can participate without being a party to UNCLOS remains to be seen.[xlvi] Where American companies have wanted to participate in deep-sea mining interests, they’ve gone through foreign subsidiaries to gain legal access to the Area.[xlvii]

The Balance

Whether in Idaho or in international waters, mining becomes a balancing act between environmental protections and harvesting crucial minerals. Environmental and social concerns abound. Here are just a few examples to consider:

• In Idaho, the Jervois cobalt mine is close to the Frank Church River of No Return Wilderness and connects by a creek to steelhead and Chinook salmon runs. Concerns of water contamination run high, especially since the Blackbird Mine remains a Superfund site where contaminated runoff entered water bodies during high flows.
• Terrestrial mining has historically demonstrated the potential for incredible environmental destruction. How much worse could the effects be deep in our oceans, which we depend on for resources, food, navigation, trade, and even climate?
• The effects of deep-sea mining are as unknown as the environments we’re diving into. Will the noise and sediment plumes of mining operations disrupt sensitive ecosystems? Will industrial mining alter marine landscapes in ways that affect species, habitat, and nutrient flow?
• Historically, mining has occurred in remote areas near indigenous peoples and minorities. How will they be affected with future mining opportunities?

Prudence is undoubtedly needed as mining efforts push forward at sea and on land, and balance between conservation and resource extraction is needed more than ever. Jervois has partnered with the Idaho Conservation League to address some of our more local environmental concerns. For the last three years, Jervois has funded projects that protect and restore fish habitats near the Upper Salmon River and protect crucial salmon species and spawning grounds. It has made $150,000 available each year for such conservation projects and plans to partner with the Idaho Conservation League throughout its 30 to 40 years of mining operations.[xlviii]

Ultimately, transitioning away from a carbon economy means transitioning towards a mineral one.[xlix] Clean energy technologies simply require more minerals. “A typical electric car requires six times the mineral inputs of a conventional car and an onshore wind plant requires nine times more mineral resources than a gas-fired plant.”[l] Since 2010, the average demand for “minerals needed for a new unit of power generation capacity has increased by 50%.”[li] Mining cobalt and similar resources has the potential to help develop our renewable energy infrastructure and spur economic growth. Not to mention supply the key minerals needed in items as common and crucial as batteries. While many questions and issues remain to be solved, just as many opportunities lie ahead.

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[i] Ian Max Stevenson and Kevin Fixler, Cobalt Mining excavations return amid electric vehicle push. They’re coming to Idaho, Idaho Statesman (Dec. 27, 2022), https://www.idahostatesman.com/news/northwest/idaho/article266874121.html;

[ii] Idaho Cobalt Belt, Jervois: Idaho Cobalt Operations, https://jervoisidahocobalt.com/idaho-cobalt-operations/idaho-cobalt-belt/ (last visited Feb. 16, 2023).

[iii] Jervois: Idaho Cobalt Operations, https://jervoisidahocobalt.com/ (last visited February 16, 2023); Stevenson and Fixler, supra note 1.

[iv] U.S. Geological Survey, Cobalt: Mineral Commodity Summary (Jan. 2023), https://pubs.usgs.gov/periodicals/mcs2023/mcs2023-cobalt.pdf.

[v] Id.  

[vi] “Mining for polymetallic nodules is an enormous challenge that has been compared to standing on top of a skyscraper on a windy day and trying to suck marbles off the street with a vacuum cleaner hose.” Jason C. Nelson, The Contemporary Seabed Mining Regime: A Critical Analysis of the Mining Regulations Promulgated by the International Seabed Authority, 16 Colo. J. Int’l Envtl. L. & Pol’y 27, 40 (2005).

[vii] Stevenson and Fixler, supra note 1.

[viii] Id.

[ix] Id.

[x] See The White House, Fact Sheet: Securing a Made in America Supply Chain for Critical Minerals (Feb. 22, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/22/fact-sheet-securing-a-made-in-america-supply-chain-for-critical-minerals/.

[xi] See generally Inflation Reduction Act of 2022, PL 117-169, August 16, 2022, 136 Stat 1818.

[xii] U.S. Dep’t of Trans., Historic Step: All Fifty States Plus D.C. and Puerto Rico Greenlit to Move EV Charging Networks Forward, Covering 75,000 Miles of Highway (Sept. 27, 2022), https://www.transportation.gov/briefing-room/historic-step-all-fifty-states-plus-dc-and-puerto-rico-greenlit-move-ev-charging.

[xiii] U.S. Dep’t of Energy, Biden Administration Announces $3.16 Billion from Bipartisan Infrastructure Law to Boost Domestic Battery Manufacturing and Supply Chains (May 2, 2022), https://www.energy.gov/articles/biden-administration-announces-316-billion-bipartisan-infrastructure-law-boost-domestic.

[xiv] Securing a Made in America Supply Chain for Critical Minerals, supra note 10.

[xv] Stevenson and Fixler, supra note 1; Keith Bradsher, Amid Tension, China Blocks Vital Exports to Japan, N.Y. Times (Sept. 22, 2010), https://www.nytimes.com/2010/09/23/business/global/23rare.html.

[xvi] U.S.G.S., Cobalt, supra note 4.

[xvii] Id.  

[xviii] U.S. Geological Survey, Rare Earths: Mineral Commodity Summary (Jan. 2023), https://pubs.usgs.gov/periodicals/mcs2023/mcs2023-rare-earths.pdf.

[xix] Catherine Danley, Diving to New Depths: How Green Energy Markets Can Push Mining Companies into the Deep Sea, and Why Nations Must Balance Mineral Exploitation with Marine Conservation, 44 Wm. & Mary Envtl. L. & Pol’y Rev. 219, 223 (2019).

[xx] U.S.G.S., Rare Earths, supra note 17.

[xxi] Deep-sea polymetallic nodule collection, Allseas, https://allseas.com/activities/deep-seapolymetallicnodulecollection/ (last visited Feb. 16, 2023).

[xxii] Id.

[xxiii] U.S.G.S., Cobalt, supra note 4.

[xxiv] Danley, supra note 19 at 225.

[xxv] Id.

[xxvi] Minerals: Cobalt-rich Ferromanganese Crusts, Int’l Seabed Auth., https://www.isa.org.jm/exploration-contracts/cobalt-rich-ferromanganese (last visited Feb. 16, 2023).

[xxvii] Id. See also North Sea Continental Shelf Cases (Ger./Neth.; Ger./Den.), Judgment, 1969 I.C.J. 3, ¶ 19 (Feb. 20) (“the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right.”).

[xxviii] Danley, supra note 19 at 219.

[xxix] Hidden Gem, Allseas, https://allseas.com/equipment/hidden-gem/ (last visited Feb. 16, 2023); The Metals Company, The Metals Company and Allseas Announce Successful Deep-Water Test of Polymetallic Nodule Collector Vehicle in the Atlantic Ocean at a Depth of Nearly 2,500 Meters,The Metals Company (May 5, 2022),  https://investors.metals.co/news-releases/news-release-details/metals-company-and-allseas-announce-successful-deep-water-test. Videos highlighting the pilot nodule collection and other tests are available to watch on the Allseas website.

[xxx] The Metals Company, NORI and Allseas Lift Over 3,000 Tonnes of Polymetallic Nodules to Surface from Planet’s Largest Deposit of Battery Metals, as Leading Scientists and Marine Experts Continue Gathering Environmental Data,The Metals Company (Nov. 14, 2022),  https://investors.metals.co/news-releases/news-release-details/nori-and-allseas-lift-over-3000-tonnes-polymetallic-nodules.

[xxxi] Id.

[xxxii] The Metals Company, TMC and Allseas Achieve Historic Milestone: Nodules Collected from the Seafloor and Lifted to the Production Vessel Using 4 km Riser During Pilot Trials in the Clarion Clipperton Zone for First Time Since the 1970s, The Metals Company (Oct. 12, 2022), https://investors.metals.co/news-releases/news-release-details/tmc-and-allseas-achieve-historic-milestone-nodules-collected.

[xxxiii] United Nation Convention on the Law of the Sea, Preamble, Dec. 10, 1982, 1833 U.N.T.S. 397, 445-77 (hereinafter UNCLOS).

[xxxiv] UNCLOS, Part XI, § 2, art. 136, 137, 140. 

[xxxv] Peter Prows, Tough Love: The Dramatic Birth and Looming Demise of UNCLOS Property Law (and What Is to Be Done About It), 42 Tex. Int’l L.J. 241, 249 (2007)

[xxxvi] Id.

[xxxvii] UNCLOS, Part XI, § 2, art. 140, 142–44, 148. 

[xxxviii] Id. at art. 137, ¶ 2; Id. at art. 140, ¶ 2.

[xxxix] The Mining Code, Int’l Seabed Auth., https://www.isa.org.jm/mining-code.

[xl] UNCLOS,  art. 77, ¶ 1.

[xli] Cobalt-rich Ferromanganese Crusts, note 24.

[xlii] Exploration Contracts, Int’l Seabed Auth., https://www.isa.org.jm/exploration-contracts (last visited Feb. 16, 2023).

[xliii] NORI and Allseas Lift Over 3,000 Tonnes of Polymetallic Nodules to Surface, note 28.

[xliv] Id.

[xlv] Status of Treaties: Law of the Sea, United Nations Treaty Collection, https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en (last visited Feb. 16, 2023); Member States, Int’l Seabed Auth.,

Member States

[xlvi] See Signe Veierud Busch, Establishing Continental Shelf Limits Beyond 200 Nautical Miles by the Coastal State: A Right of Involvement for Other States? 266, 286 (2016); Chapter 2 Resource Rights in the Continental Shelf and Beyond: Why the Law of the Sea Convention Matters to Mineral Law, 64 RMMLF-INST 2, 2-6 (2018).

[xlvii] Danley, supra note 19 at 256 (citing Daisy R. Khalifa, Law of the Sea Goes Public, 55 SEAPOWER 16, 17-18 (2012)).

[xlviii] Eric Tegethoff, Mining Co., ID Conservation Group Partner to Fund Salmon Restoration, Public News Service (Feb. 8, 2023), https://www.publicnewsservice.org/2023-02-08/environment/mining-co-id-conservation-group-partner-to-fund-salmon-restoration/a82811-1; Stevenson and Fixler, supra note 1.

[xlix] Executive Summary: The Role of Critical Minerals in Clean Energy Transitions, Int’l Energy Agency, https://www.iea.org/reports/the-role-of-critical-minerals-in-clean-energy-transitions/executive-summary (last visited Feb. 16, 2023).

[l] Id.

[li] Id.

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 [LE1]Pull quote

By Adam P. Karp

Editor’s Note: This article is an excerpt that is reprinted with the publisher’s permission from American Jurisprudent Trials (© 2023 Thomson Reuters). Further reproduction of any kind is strictly prohibited. For further information about this publication, please visit https://legal.thomsonreuters.com/en/products/law-books, or call 800-328-9352.

According to the APPA National Pet Owners Survey (2023-2024), 66% of all U.S. households have a companion animal, with 65.1 million households sharing a home with a dog and 46.5 million households with a cat.[i] Idaho boasts the nation’s highest percentage of dog owners (58%), eighth highest percentage of cat owners (33%), and fifth highest percentage of companion animal owners (70%).[ii] Over six million companion animals enter the approximately 3,500 animal shelters in the United States every year. Best Friends Animal Society[iii] found that homeless animals surrendered to, or impounded by, American shelters die at a rate of at least 350,000 lives per year. In 2016, the year before California became the first state to ban puppy and kitten retail sales, the kill rate was over 1.5 million.[iv]

While some of these millions of animals who have been picked up as strays are reunited to their owners, large numbers are housed in overcrowded facilities at prodigious municipal expense until forcing shelter workers to face the excruciating task of ending lives, not for ailing health, but due to finite resources and out of concern for long-term effects of confinement. Breeding new animals into existence inevitably comes at the expense of those already here and desirous of finding lifetime homes. While Americans have, in some cities, more dogs and cats than human children, there is only so much residential capacity. With a glut of homeless animals, the inexorable march to euthanasia continues.

The Rise in Pet Retail Sales Bans

Municipalities and states who wish to be goal-oriented in staunching this unyielding flow of canine and feline life impose regulatory restrictions, or premiums, on those who harness their reproductive potential rather than curtail it. This is accomplished through mandatory spay/neuter laws, as well as by enacting animal care conditions that seek to ameliorate the oppressive conditions of extensive breeding. Financing impediments also achieve this goal by prohibiting or penalizing predatory solicitations and legal instruments binding consumers to retail installment contracts, leases, loans, and purchase money security interests in the animals. By far the most common legislative tactic is to restrict avenues by which the public may readily acquire bred puppies and kittens, instead incentivizing rescue from a nonprofit or adopting from a shelter.

By cutting off retail supply lines, legislatures reasonably seek to redirect the public to the inventory of homeless pets, thereby lowering animal control and sheltering expenses and furthering the humane goal of stewardship toward animals that society has intentionally or negligently allowed to breed in excessive number. As most consumers shop at pet stores, legislatures naturally look to ban those point of sale transactions at brick-and-mortar storefronts. However, this leaves unaffected direct sales between breeders, whether they occur at the kennel or in a parking lot, advertised via online yard sale sites like Facebook Marketplace or Craigslist, or through website presence.

Yet shutting down pet store sales simply to drive citizens to adopt has been met with repeated constitutional challenges. This is why another rationale surfaced – that the vast majority of animals sold at pet stores come from Commercial Breeding Enterprises (“CBE”) or “puppy mills.” CBEs or puppy mills are large-scale breeding operations notorious for neglectful and abusive conditions related to the factory-type farming of dogs and cats to produce units for filial consumption.

To cripple CBEs and their use of out-of-state municipalities to unload large numbers of puppies and kittens, legislatures have successfully argued that halting retail sales serves to deprive puppy mills of market opportunities, since, after all, puppy mills do not sell directly to the public but, rather, through a series of intermediaries including wholesalers, distributors, dealers, resellers, transporters, and retailers. In so doing, CBEs mask from public view the deplorable conditions of production.

That puppy frolicking in the window of a clean, well-lit, and warm pet store does not faithfully reflect its genesis nor the mistreatment and neglect that follows its parents at an undisclosed location. Aside from cities and counties being moved to take action due to the perfectly understandable considerations for the inhumane treatment of dams and sires, yet another reason for legislative involvement beckons: due to intensive breeding, a number of the milled offspring suffer from congenital abnormalities and behavioral problems not apparent until after sale.

Those maladies may result in unexpected and extreme veterinary expenses to the hoodwinked buyer, or, as is more often the case, surrender of these ailing creatures to municipal shelters, foisting the burden of caring for such hapless beings on taxpayers, and saddling shelter workers with the terrible choice of euthanizing or impounding an animal for a potentially long and costly period, eager for an adoption that is, statistically, unlikely to occur.

Albeit a somewhat circuitous route, the plausible pipeline from puppy mill to pet store to buyer to shelter forges the nexus that supports such bans by shrinking the market in which milled pets may be sold.

Naturally, pet stores have not gone down without a fight, which explains the legal challenges that ensued in the 21^st Century, most commonly in the last decade, as pet store bans have taken off like wildfire.

California, Maine, Maryland, Washington, and New York lead, and hundreds of counties and cities all throughout the United States have followed. Indeed, states without a statewide prohibition may as well be regarded as possessing one, such as New Jersey, with 137 municipal bans.[v]

Yet, by and large, except in the case of Arizona, which enacted a law preemptive of Phoenix’s ban,[vi] not a single court has stricken a retail pet sale ban; although a federal district court judge in 2011 did grant a temporary restraining order to enjoin enforcement of the City of El Paso’s law capping the sale price of kittens and puppies at $50 for unaltered and $150 for altered dogs and cats older than eight weeks of age – which suit was later dismissed by a settlement and no further adjudication.[vii] It is extremely dubious that any future court will do so, as nearly every variant of argument has been meticulously fly-specked.[viii]

The predominant challenge to any such law highlights the undeniable discrimination between pet shops, on the one hand, and breeders, animal rescues, and shelters, on the other, taking the form of claims invoking the U.S. Constitution’s Commerce Clause, Equal Protection Clause, Contract Clause, Due Process Clause, and Takings Clause. Federal preemption by the federal Animal Welfare Act (“AWA”) provides yet more grist for dispute, as well as claims of preemption by state law and home rule overreaches. In many respects, litigation over pet retail sales bans read as a redux of the cases upholding state equine slaughterhouse bans.[ix] That said, some permutations have yet to be tested, and if municipalities or states become more emboldened, familiarity with prior cases will prove invaluable.

The Animal Welfare Act

To understand why retail pet sale bans are critical in spite of the federal AWA,[x] one must first understand that retail pet stores are exempt from regulation thereunder. Congress enacted the AWA to insure that pets are provided humane care and treatment, finding it “essential to regulate […] the transportation, purchase, sale, housing, care, handling, and treatment of animals by carriers or by persons or organizations engaged in using them for research or experimental purposes or for exhibition purposes or holding them for sale as pets or for any such purpose of use.”[xi]

To that end, it regulates animal “dealers.”[xii] The AWA definition of dealer excludes retail pet stores.[xiii] Breeders who sell by means where the purchaser has no chance before sale to determine health, such as via the internet, are nonetheless bound to the licensing, inspection, and care standards. This means that breeders selling puppies to consumers in person, such as at flea markets, by the side of the road, or by Craigslist or Facebook yard sale sites, are exempt from the AWA regardless of the size of their breeding operation. Additionally, the AWA does not apply to businesses of de minimis size, such as businesses with four or less breeding female animals.

In response to audits of the federal government’s enforcement of the AWA which demonstrated widespread issues and ineffectiveness,[xiv] APHIS implemented a final rule in September 2013,[xv] which amended 9 CFR Pts. 1 and 2, revised the definition of “retail pet store” to require licensing by breeders in “sight unseen” transactions that do not involve “face-to-face” delivery to customers but typically occur over the internet. Brick and mortar stores remained exempt from licensing and inspection under the AWA. Photos, Skype, webcam, and other electronic methods of communication do not suffice to avoid licensing by such entities.

The rule raised the maximum number of female breeding dogs, cats, or certain species a person could maintain from three to four to be exempt from licensing, provided they sold only offspring from those animals born and raised on their premises for pets or exhibition. 80 FR 3463 (2015) corrected an oversight in the 2013 final rule that neglected to raise the number in one provision of the regulations related to animal purchases by dealers and exhibitors.[xvi] In 2020, APHIS again amended these regulations, but without substantive change to 9 CFR 2.1(a)(3)(iii) [exempting persons with four or fewer breeding female pet animals] or 9 CFR 2.132 [concerning dealer procurement of animals].[xvii]

As of December 2022, APHIS’s Animal Care Program enforces the AWA for 13,200 licensees and registrants. The Animal Care division enforces the AWA and Horse Protection Act (prohibiting soring only).[xviii] In FY 2020, APHRE initiated 1,129 new cases. In FY 2021, the Animal Care program initiated 118 cases for AWA violations, issued 58 official warnings, issued three pre-litigation settlements, and obtained eight administrative orders.[xix] See also USDA FY 2022 Budget Summary, pages 88-91.[xx]

USDA Regulations

The United States Department of Agriculture (“USDA”) and its Animal & Plant Health Inspection Service (“APHIS”)’s implementing regulations[xxi] set the minimum standards for the treatment of certain species in various contexts. Civil and criminal penalties apply.

The USDA created three licensing categories for retail pet sellers:[xxii] a “Class ‘A’ licensee (breeder)” – a dealer subject to AWA licensure “whose business involving animals consists only of animals that are bred or raised on the premises,” a “Class ‘B’ licensee” – a regulated dealer “whose business includes the purchase and/or resale of any animal” including “brokers [… who] negotiate or arrange for the purchase, sale, or transport of animals in commerce,” and “Class ‘C’ licensee” – an exhibitor whose business involves the showing or displaying of animals to the public. Breeders with four or fewer breeding females who sell only offspring from those females need not obtain an AWA license.[xxiii] Businesses covered by the AWA include: “dealers,” typically animal breeders and brokers, auction operators, or those who sell domesticated, laboratory, exotic, or wild animals. Dealers are defined as:

“Any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of: Any dog or other animal whether alive or dead (including unborn animals, organs, limbs, blood, serum, or other parts) for research, teaching, testing, experimentation, exhibition, or use as a pet; or any dog at the wholesale level for hunting, security, or breeding purposes. This term does not include: A retail pet store, as defined in this section; and any retail outlet where dogs are sold for hunting, breeding, or security purposes.”[xxiv]

Therefore, Class A dealers deal only in animals they breed and raise; the rest are Class B. Retail pet stores who sell directly to owners, hobbyists, animal shelters, and boarding kennels are not regulated by the federal government. Animal transporters or carriers, such as airlines, railroads, and truck drivers, require a Class T registration, but no license. If registered or licensed, the business or individual must comply with all federal regulations, including recordkeeping and standards of care. Licensing records may be accessed through Animal Care Public Search Tool.[xxv]

The AWA expressly contemplates local regulation[xxvi] and provides that USDA regulations regarding “humane handling, care, treatment, and transportation of animals by dealers” shall not bar any state or locality from promulgating their own additional standards.[xxvii] The USDA has come under criticism for lax enforcement and insufficient standards leading to the proliferation of puppy mills.

The Humane Society of the United States, for instance, has stated: “[the] AWA allows dogs to be kept in cramped, wire-floored cages for their entire lives, churning out litter after litter of puppies for the commercial pet trade.”[xxviii] The Inspector General has found that dogs cared for by USDA-licensed breeders were observed “walking on injured legs, suffering from tick-infestations, eating contaminated food, and living in unsanitary conditions.”[xxix] As a result, many states and localities have imposed restraints on breeders and pet stores.

State Retail Sales Bans

Most pet sale bans originate at the local level, but statewide prohibitions are increasing in prevalence.[xxx] As of March 2022, six states have enacted statewide prohibitions banning retail pet sales. The statewide bans include the following:

In 2017, California became the first state to enact a retail pet sale ban with AB 485, creating Cal. Health & Safety Code 122354.5. This code was subsequently amended in 2020 by AB 2152, known as Bella’s Act, which made it illegal for a pet store not only to sell, or offer to sell, a dog, cat, or rabbit, but from also adopting out such animals. Pet stores wanting to offer live animals would need to put aside space for a public animal control agency, shelter, or 501(c)(3) tax-exempted nonprofit rescue to showcase adoptable animals and the animal must be sterilized prior to adoption and adopted for no more than $500.

In 2022, California passed AB 2380, which prohibited online pet retailers from offering, brokering, referring, or otherwise facilitating a loan or other financing option for adoption or sale of a dog, cat, or rabbit, though it did not apply to a service animal.[xxxi]

California provided a template for other States, such as Maryland in 2018 (Maryland Bus. Reg. Code 19-701 – 703); Maine in 2020 (MRSA 4153); Illinois in 2021 (225 ILCS 605/3.8, 605/3.9), Washington in 2021 (RCW 16.52.360); and New York in 2023 (35-D NYS Agr. & Markets 753-F). The latest state laws make efforts to circumvent bans by “puppy laundering,” the practice of funneling puppies through fake animal rescues with hidden payments, often across state lines, to provide pet stores dogs labeled as “rescues” who are, in fact, bred for sale. The laws do so by prohibiting the shelter or rescue from serving as an affiliative conduit for breeders and brokers.[xxxii]

Boise City Council Ordinance

Most germane to this article is the passage of Ord. 20-21 by the Boise City Council in May 2021. BCC 5-1-22 states:

5-1-22: SALE OF COMMERCIALLY BRED DOGS AND CATS IN RETAIL STORES PROHIBITED:

A. Prohibition: It shall be unlawful for any person to offer for sale any live dog or cat in a retail business within the City, except for dogs and cats obtained from an animal care and control agency, animal care facility, animal shelter, or non-profit rescue that does not breed dogs or cats, or obtain dogs or cats from a person who breeds or resells such animals for payment or compensations.

B. Breeder Exemption: This section shall not prohibit the private breeding of dogs and cats for direct sales between the breeder and the consumer. (Ord. 20-21, 5-11-2021)

Violation of BCC 5-1-22 is a misdemeanor pursuant to BCC 5-1-25(B). Based on the abysmal track record of those challenging such retail pet sale bans, Boise’s laudable ban is virtually guaranteed to be impervious to legal challenge. Thankfully, it helps to close the loophole that allows “rescues” to front for breeders by reselling them under the guise of an exempt nonprofit.[xxxiii]

Conclusion

Laws that ban sales of dogs and cats, and that prohibit breeding altogether, are vital to government operations, public safety, and social equanimity hallmarked by humane stewardship. They will remain needed so long as public consciousness has failed to recognize the hard truth that, by domestication of the canid and felid, and centuries of unbridled animal husbandry, our society has given birth to wholly dependent individuals numbering in the millions of lives to whom we stand in loco parentis. And they, in turn, take millions more lives who have been canned or processed as pet food. We have forsaken our artificially selected companions and thrust upon shelter workers the abhorrent task of what would appear to an objective observer to be “taking out the trash,” except instead of true garbage, the barrels are filled with euthanized, homeless beings.

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[i] American Pet Products Association, Pet Industry Market Size, Trends, & Ownership Statistics, https://www.americanpetproducts.org/press_industrytrends.asp.

[ii] Nicole Blanchard, Idaho’s Dog Ownership is the Highest in the U.S.,The Spokesman-Review (Dec. 23, 2018), https://www.spokesman.com/stories/2018/dec/23/idahos-dog-ownership-is-the-highest-in-the-us/; Craig Northrup, Idaho is Top Dog, Coeur d’Alene/Post Falls Press (Jan. 13, 2020), https://cdapress.com/news/2020/jan/13/idaho-is-top-dog-5/.

[iii] Best Friends Animal Society, www.bestfriends.org.

[iv] 2021-2022 APPA National Pet Owners Survey, American Pet Products Association, available at: www.americanpetproducts.org/pubs_survey.asp; The State of Animal Welfare Today, Best Friends Animal Society, https://bestfriends.org/no-kill-2025/animal-welfare-statistics (last visited April 5, 2023). 

[v] States with Humane Pet Sales Laws, Best Friends Animal Society, https://bestfriends.org/advocacy/ending-puppy-mills/states-humane-pet-sales-laws (last visited April 5, 2023).

[vi] Puppies ‘N Love v. City of Phoenix, 283 F. Supp. 3d 815 (D. Ariz. 2017).

[vii] Six Kingdoms Enters., LLC v. City of El Paso, No. EP-10-CV-485-KC, 2011 WL 65864 (W.D. Tex. Jan. 10, 2011).

[viii] See, e.g., Just Puppies, Inc. v. Frosh, 565 F. Supp. 3d 665, 687-688 (D. Md. 2021); Park Pet Shop, Inc. v. City of Chicago, 872 F.3d 495, 502-503 (7th Cir. 2017); Perfect Puppy, Inc. v. City of East Providence, 98 F. Supp. 3d 408, 415 (D.R.I. 2015), aff’d in part, appeal dismissed in part, 807 F.3d 415 (1st Cir. 2015); New York Pet Welfare Association, Inc. v. City of New York, 850 F.3d 79, 83 (2d Cir. 2017).

[ix] See, e.g., Empacadora de Carnes de Fresnillo, S.A. de C.V., v. Curry, 476 F.3d 326, 336-37 (5th Cir. 2007) and Cavel Intern., Inc. v. Madigan, 500 F.3d 551 (7th Cir. 2007).

[x] Animal Welfare Act, 7 U.S.C. § 2131 et seq.

[xi] 7 USC § 2131.

[xii] 7 USC § 2132(f).

[xiii] See 9 CFR § 1.1.

[xiv] : See Audit Report 33002-4-SF, USDA and OIG APHIS Animal Care Program Inspections of Problematic Dealers (May 2010), and  OIG Audit Report No. 33600-1-CH, USDA (January 1995).

[xv] 78 FR 57227-57250. Docket No. APHIS-2011-0003), Nov. 18, 2013.

[xvi] 9 CFR § 2.132(2).

[xvii] 85 FR 28772, Docket No. APHIS-2017-0062, Nov. 9, 2020.

[xviii] Horse Protection Act, U.S.D.A,  https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/hpa (last modified Aug. 4, 2020).

[xix] Enforcement Summaries, U.S.D.A., https://www.aphis.usda.gov/aphis/ourfocus/business-services/ies/ies_performance_metrics/ies-panels/enforcement-summaries (last modified Feb. 14, 2023).

[xx] FY 2022 Budget Summary, U.S.D.A., available at: https://www.usda.gov/sites/default/files/documents/2022-budget-summary.pdf.

[xxi] 9 CFR § 1.1 – 12.1.

[xxii] 9 CFR § 1.1.

[xxiii] 9 CFR § 2.1(a)(3)(iii).

[xxiv] 9 CFR § 1.1.

[xxv] USDA Animal Care Search Tool, U.S.D.A., https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/SA_Access_Animal_Care_Search_Tool (last modified Sep. 22, 2020).

[xxvi] 7 USC § 2145(b).

[xxvii] 7 USC § 2143(a)(8).

[xxviii] Puppies ‘N Love v. City of Phoenix, 116 F. Supp. 3d 971, 977-978 (D. Ariz. 2015), judgment vacated, 283 F. Supp. 3d 815 (D. Ariz. 2017).

[xxix] Puppies ‘N Love v. City of Phoenix, 116 F. Supp. 3d 971, at 978.

[xxx] States with Humane Pet Sales Laws, Best Friends Animal Society, https://bestfriends.org/advocacy/ending-puppy-mills/states-humane-pet-sales-laws (last visited April 5, 2023).

[xxxi] Cal. Health & Safety Code § 122191.

[xxxii] Rebecca Carey and Cody Latzer alleged that puppy mill broker J.A.K.’s Puppies and its owners used front “rescue organizations” Rescue Pets Iowa, Bark Adoptions, and Pet Connect Rescue to transport puppy milled dogs to California pet stores and bypass the State ban. The same defendants were sued by the Iowa Attorney General’s Office in 2019. See Carey v. J.A.K.’s Puppies, Inc., et al, Docket No. 5:2021cv02095 (U.S. Dist. (C.D.Cal.) 2021). The suit raised claims under the Racketeer Influenced and Corrupt Organizations Statute (“RICO”), the California Unfair Competition Law, the California Consumer Legal Remedies Act, and other state laws.

[xxxiii] To learn more, see Krysten Kenny, A Local Approach to a National Problem: Local Ordinances as a Means of Curbing Puppy Mill Production and Pet Overpopulation, 75 Alb. L. Rev. 379 (2012). See also: An Advocate’s Guide to Stopping Puppy Mills, The Humane Society of the United States, available at: https://www.humanesociety.org/sites/default/files/docs/HSUS_Advocate-Guide_Stopping-Puppy-Mills.pdf; Puppy Mills by State, Bailing Out Benji, https://bailingoutbenji.com/puppy-mill-maps/ (last modified 2020); About Petland and Puppy Mills, The Humane Society of the United States, https://www.humanesociety.org/petland (last visited April 5, 2023); and, The Horrible Hundred, The Humane Society of the United States, https://www.humanesociety.org/horriblehundred (last visited April 5, 2023).

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By Marie Callaway Kellner, with insights from and appreciation to Jeffrey C. Fereday

The Idaho Conservation League (“ICL”) is Idaho’s oldest and largest state-based, non-profit natural resource conservation organization. Its mission is to create a conservation community with pragmatic, enduring solutions that protect the air we breathe, the water we drink, and the lands and wildlife we love. Founded in 1973, ICL membership has grown from dozens of people to almost 30,000 and includes current members and supporters in all 44 Idaho counties. ICL has 30 staff working from four offices (Sandpoint, McCall, Ketchum, and Boise), and a volunteer Board of Directors who provide geographical representation for all regions of Idaho.

Practitioners of natural resource and environmental law owe a debt of gratitude to those individuals and organizations – including far-sighted political leaders – in the 1960s and 70s who advocated for, and helped pass, the federal statutes that established much of our nation’s legal framework for managing, protecting, and harvesting public natural resources. Yet, just as we see in today’s political and cultural landscape, what was happening at the federal level was in many ways an outgrowth of local sentiments by citizens who were willing to put in the work to make change. The creation of the Idaho Conservation League (“ICL”) in 1973 is Idaho’s homegrown example.

While the lore surrounding ICL’s origins varies regionally, the stories from around the state have a common thread. Whether Coeur d’Alene, Idaho Falls, Boise, Caribou County, Twin Falls, or the Wood River Valley, and whether it was at lunch, a coffee shop, or over a potluck dinner, there was a small group of Idahoans back then with the common desire to do something about protecting Idaho’s environment and its quality of life. Lucky for us today, these folks found each other. They were concerned that Idaho’s Legislature was anti-conservation; they watched growth without safeguards impair open space and wildlife habitat, degrade water and air quality, and threaten the wild places that so greatly contribute to quality of life. They recognized that together their voices would be more effective. But most importantly, they were willing to try. That spirit launched the Idaho Conservation League in 1973.

For 50 years, ICL staff, Board, members, and volunteers have endeavored to carry that commitment forward, providing facts and a consistent voice at the Statehouse, and advocating for things that don’t have a literal voice.

Legends in the Movement

When I joined ICL’s staff as its first ever Water Associate more than a decade ago, I was thrilled to put my relatively recently earned law license to work on behalf of rivers and fish. I have always loved rivers for their inherent beauty and what I deem an analogy for life: serene at times, turbulent at others, yet always flowing and carrying you to places you may not yet know. While my role has evolved and I now work on much more than river conservation, some aspects of working at ICL remain constant, including the opportunity to learn from and continually meet Idahoans who value a healthy environment and our wildest, most pristine places.

Some of the most special work moments I have involve meeting people who were part of the organization’s founding. To realize that 40, 45, or even 50 years on they are still engaged and passionate about ICL’s mission inspires me. ICL is only as strong as its staff, members, and active volunteers, and its earliest ones were legends of Idaho’s environmental protection movement.

After helping found Coeur d’Alene’s Kootenai Environmental Alliance, civic icons, former state senator Mary Lou Reed, and her husband, the late attorney Scott Reed, also anchored the formation of ICL. In late 1973, the Reeds were in the room when what was known as the Boise Lunch Bunch “got down to brass tacks, formed the organization and decided on a name.”[i] Conservation was intentionally chosen over the terms preservation or environmental, and the term league was an acknowledgment that, while there was a staff and board, ICL was actually a league of chapters from around the state. An incomplete list of the people there that day includes photographer Ernie Day, attorney Bruce Bowler, dentist Ken Cameron, and journalist Ken Robison, who is said to have suggested ICL’s initial motto: “[a] non-partisan voice for conservation legislation.”[ii]

ICL’s first Executive Director was Boisean Marcia Pursley, and her first hire was Belle Heffner. Marcia and Belle were organizers extraordinaire who directed the growing volume of ICL volunteers to meaningful work.

Other early leaders who left a mark on ICL via their volunteerism, board, or staff service, legal representation, policy advocacy, or as organizational allies include (among many others) Bruce Bowler, Franklin Jones, John Peavey, Ken Pursley, Nelle Tobias, Matt Mullaney, Tom Davis, Doli Obie, Renee Quick, Jeff Fereday, and Pat Ford.

Notably, two Idaho political stalwarts were in office during ICL’s early years: Gov. Cecil Andrus and Sen. Frank Church. Aptly described by Fereday as “two, once-in-a-lifetime politicians,” they were lions in the environmental movement who had “a bones-deep appreciation for clean air, wildlife, wild places, and free-flowing rivers.”[iii] They provided inspiration and focus for ICL early on just as their legacy continues to inspire ICL today.

Advocacy From the Beginning

ICL is not a law firm; it’s an advocacy organization. That being said, several ICL staff are attorneys who practice primarily in state administrative fora. If ICL litigates in federal court, it typically works with outside – often pro bono – legal counsel. ICL’s advocacy also comes in the form of lobbying, education, public engagement, and policy development with state and federal agencies. Each of these tools is used strategically and, ideally, at the right time. ICL’s long-time Executive Director Rick Johnson (now retired) once said, “[c]onservation success is based on windows of opportunity. These openings are sometimes rare and fleeting. The art of conservation is recognizing the opening and getting through it, usually in some policy forum, where achievement can be made.”[iv]

Two of ICL’s earliest windows of opportunity were advocating for thoughtful growth through land use planning and mandating public disclosure by lobbyists. In his recent essay, “Memories of ICL, 1973-77”[v] Jeff Fereday – who in addition to being a longtime Idaho attorney was an early ICL volunteer and its second Executive Director – shared Marcia Pursley’s recollections about the land use planning fight:

“When the first ICL Board met in November 1973, rampant and unregulated growth were hammering Idaho communities. Land use planning and zoning were local options, not statewide requirements. In 1970 or so, Boise City had hired planning staff to oversee ‘planned growth,’ but backlash against these efforts was immediate and personal. Boise planning staff were being threatened by people who contended they could do anything, anytime, with their property, that land planning and zoning was a communist plot, and that the Boise City planners should, in so many words, ‘get the hell out of town.’”

Governor Cecil Andrus recognized that Idaho’s growth needed safeguards, and a commission he created to study solutions proposed the Local Planning Act in the 1974 legislative session, an early version of our current Land Use Planning Act.[vi] What happened next is recollected by Fereday:

“With such widespread support, one might assume the measure would be odds-on to pass, and ICL and its allies worked hard to achieve that. But there were obstacles. The bill stalled in the Idaho Senate. A filibuster by then Minority Leader and later Idaho governor, John Evans, broke the logjam. ICL staff and volunteers sat in the gallery lending moral support. Another challenge was that a Senate committee chair used Idaho state letterhead for a letter addressed to all ‘Fellow Realtors’ urging opposition to the bill. To counter that, ICL volunteers packed his committee room, standing body to body behind the members. However, late in the session, a group of companies (including Idaho Power, Morrison Knudsen, and the realtors and homebuilders’ associations) sent in a brigade of lobbyists, many of them on a stealth basis, who persuaded legislators to kill the bill.

Frustrated and alarmed, ICL staff now felt the sting of a situation that undermined representative democracy: the fact that a business or other entity could work completely behind the scenes at the Legislature while disclosing nothing about backers and financial supporters. Marcia, Belle, and the ICL Board understood that this problem would continue to frustrate citizen action on every issue unless something were done. Marcia’s response was immediate, and aimed directly at using democracy itself.

As soon as the 1974 legislative session ended, Marcia and Senator John Peavey created a volunteer committee to launch a citizens’ initiative to put on the November 1974 ballot a proposed new statute, dubbed the Sunshine Law,[vii] that would require lobbyists to register and reveal their employers, and would mandate financial disclosures for both lobbying efforts and election campaigns. Ken Pursley wrote the proposed new statute, John Peavey chaired the statewide effort, and Mary Mech of the League of Women Voters staffed signature gathering. Boise legislator Bill Onweiler (R) enthusiastically supported the initiative, and his wife, Corki Onweiler, chaired the Ada County signature gathering effort. In those days, before the Legislature made the initiative process as vexingly difficult as it is today, signatures in a small number of counties could put a measure on the ballot. Despite the short timeframe, the proponents succeeded, and, once it was on the ballot, Governor Andrus supported it. As did Idaho voters in the November 5, 1974 election – by 77.56%.”[viii]

Keeping Coal Out of Idaho

Idaho’s Sunshine Law exemplifies ICL as a champion for good ideas and a fulcrum for volunteer citizen effort. Another early priority, preventing the Pioneer Coal Plant from being built on the desert between Boise and Mountain Home, exemplifies ICL’s commitment to oppose bad ones.

Proposed by Idaho Power to address what it projected would be necessary to meet growth, Pioneer was a proposed 1,000 mega-watt coal fired power plant to be located about 20 miles south of Boise. Organizing against what would have been Idaho’s first coal fired power plant required the fledgling conservation organization to grow up fast. As recalled by Fereday, “[c]ountering Idaho Power’s message required hard-nosed, tireless work; fact-finding, self-education, work at the Legislature, a vigorous presence in the news, and persuasion at the state agencies. It required consulting experts and researching federal clean air matters, utility regulation, electrical transmission, the northwest energy system, and the economics of power sales and consumption.”[ix]

ICL staff and volunteers raised funds to host energy awareness workshops around the state. They wrote Letters to the Editor and created petitions opposing the coal fired plant. They pitched stories to Idaho newspapers and the regionally acclaimed High Country News. They organized with allies like the League of Women Voters and the Idaho Medical Association. There was even a TV debate between then-ICL Executive Director Fereday and Idaho Power’s CEO Albert Carlsen. Much as still happens today, ICL used as many tools in the toolbox as it could. And luckily for Idaho, its air quality, and its energy economy, these efforts were successful. In September 1976, the Idaho Public Utilities Commission denied Idaho Power’s application to build Pioneer. To this day, Idaho still has no instate coal fired power.

Protecting For Perpetuity

In the almost 50 years since, ICL has been at the table when natural resource issues are on the menu. The Owyhee Canyonlands Wilderness and its attendant Wild & Scenic Rivers reaches;[x] the Cecil D. Andrus White Clouds Wilderness;[xi] the Central Idaho Dark Sky Reserve;[xii] the Frank Church-River of No Return Wilderness;[xiii] the preservation of Box Canyon in the mid-Snake River;[xiv] citizens suits under the Clean Water Act[xv] and the Endangered Species Act;[xvi] and much more. And beyond all this, of course, is ICL’s day-to-day attention to and dissemination of information to the public about environmental issues facing Idaho.

Onward!

As ICL enters its second 50 years, much remains to be accomplished. People like me, with the good fortune to work here now, do our best to embody the goals of ICL’s founders, early staff, and volunteers. If we are successful, 50 years from now those who come after us will have the opportunity to reflect on the relevance and importance of this organization and all it has done to shine a light on good governance, protect in perpetuity the most worthy of places, fight for public and environmental health by protecting air and water, and be a voice for the fish and wildlife that don’t otherwise have one.

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[i]  Jeffrey C. Fereday, Memories of ICL, 1973-77 (January 2023), with contributions from Marcia Pursley, at 2 (forthcoming in an ICL commemorative publication summer 2023) [hereinafter “Memories”].

[ii] Memories at 2.

[iii] Id. at 6.

[iv] Rick Johnson, Ken Robison, One of Idaho’s Passionate Defenders (Oct. 21, 2016), https://www.idahoconservation.org/blog/ken-robison/ (last visited April 4, 2023).

[v] Memories at 9-10.

[vi] Idaho Code § 67-6501 et seq.

[vii] Idaho Code § 67-6601 et seq.

[viii] Memories at 10. See also https://sos.idaho.gov/elect/inits/inithist.htm (last visited April 4, 2023).

[ix] Id. at 12.

[x] Owyhee Initiative, https://owyhee-initiative.squarespace.com (last visited April 4, 2023).

[xi] Rick Johnson, Endless Pressure, Endlessly Applied: Idaho’s Boulder-White Clouds Wilderness Bill (June 20, 2016),  https://law.utah.edu/endless-pressure-endlessly-applied-idahos-boulder-white-clouds-wilderness-bill (las visited April 4, 2023).

[xii] Central Idaho Dark Sky Reserve, https://idahodarksky.org (last visited April 4, 2023).

[xiii] Rick Johnson, Knowing Frank, https://www.boisestate.edu/sps-frankchurchinstitute/knowing-frank/ (last visited April 4, 2023).

[xiv] Morgan v. Walter, 728 F. Supp. 1483 (D. Idaho 1989).

[xv] Idaho Conservation League v. Atlanta Gold Corp, 879 F. Supp. 2d 1148(D. Idaho 2012); Idaho Conservation League v. Poe, 1:18-cv-353-REP (D. Idaho Sept. 28, 2022).

[xvi] Jonathan Oppenheimer, Court Ruling: Wolverines Deserve Protections (April 3, 2016), https://www.idahoconservation.org/blog/court-ruling-wolverines-deserve-protections (last visited April 4, 2023); Brad Smith, Keep Hope Alive for Caribou, https://www.idahoconservation.org/blog/keep-hope-alive-for-caribou (last visited April 4, 2023).

By Wade C. Foster and Krista K. McIntyre

Defining Environmental Justice

Consider these three statements: I experience odor or discoloration in my tap water, English is not the primary language spoken in my home, and I live near industrial activity.

Now, consider these statements: The organization that I work for can access environmental subject matter experts, the organization that I work for has influence in the regulatory review of projects that I care about, and the organization that I work for can access regulators and leaders of agencies.

Responses to these and similar prompts may highlight the persistent disparities among communities and reveal the varying levels of involvement in regulatory processes among stakeholders in communities across America. The refreshed focus on Environmental Justice (“EJ”) in regulatory and commercial activities is targeted at narrowing the gaps in lived experiences across American neighborhoods.

EJ is defined by the U.S. Environmental Protection Agency (“EPA”) as the “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”[i] EJ aims to combat the disparate impact of environmental and health hazards on low-income neighborhoods and communities of color through distributive, procedural, corrective, and social justice.[ii] EJ is no longer only a subject of activism and academia; it is at the forefront of minds in the White House, state legislatures, and even board rooms.

EJ touches nearly all aspects of society today: pollution, food security, energy equity, disaster relief, housing access, internet access, tribal sovereignty, urban planning, socioeconomic growth, political representation, transportation, education, climate change, and resiliency. EJ targets every facet of the lived experience and an individual’s ability to enjoy a safe, healthy community and to access opportunity. EJ impacts nearly every commercial and industrial sector. Unpacking the definitions of “environmental,” “justice,” and “community” reveals meanings that are broader and more complex than generally understood, even by experienced environmental lawyers.[iii]

The term “environmental justice” emerged during the civil rights movement of the 1960s, when Rev. Dr. Martin Luther King, Jr. brought attention to environmental injustices borne by predominately black garbage workers at a Memphis, Tennessee sanitation facility. Later, a national study found a positive correlation between subjects’ race and their proximity to hazardous waste sites. [iv] Empirical evidence of environmental injustice sprouted.[v] Overburdened communities are not only in black and brown or urban neighborhoods. Following an Executive Order signed by President Clinton in 1994, federal agencies began work to identify and address impacts in communities of color and among low-income areas.

Refreshed Emphasis on EJ

Current events impacting overburdened communities, like the Flint, Michigan water crisis (2014), the Dakota Access Pipeline protests (2016), and the disproportionate rates of COVID-19 hospitalization and death in communities of color,[vi] punctuate the urgency for new EJ conversations. On January 3, 2023, for example, the EPA published its final Strategic Plan 2022-2026. It declares an imperative for the agency to embed EJ and civil rights into its core mission and day-to-day work.[vii] National and regional offices within the EPA are directed to develop plans to achieve specific EJ goals and will be accountable for performance against those goals.

EPA Administrator Michael Regan directed all EPA offices to integrate EJ considerations into their plans and policies, noting EJ was one of his “top priorities as administrator.”[viii] Among Regan’s EJ focuses are strengthening environmental enforcement in and improving engagement with EJ communities and incorporating EJ into regulatory processes, including impact assessments and rulemaking. A recent EPA Enforcement and Compliance Assurance memo directs staff to protect EJ communities by boosting inspections and enforcement while increasing engagement with community members about enforcement efforts.[ix]

Other federal agency plans are required by President Biden’s Executive Orders 13985 and 14008. For example, the U.S. Department of Transportation committed to ensuring opportunities for minority and low-income communities to influence the transportation planning and decision-making processes through enhanced engagement and meaningful input and actively preventing disproportionately high and adverse effects of transportation projects on minority and low-income communities.

The U.S. Department of Housing and Urban Development (“HUD”) committed to a variety of actions to empower communities to achieve climate resilience, facilitate economic opportunities, and eliminate health risks caused by environmental injustices. HUD has established EJ as a budget priority, ensuring that both HUD staff and its external stakeholders are aware of the significance of avoiding and reversing environmental inequities. As goes federal government priorities, also go state government obligations.

Tools for identifying overburdened communities where EJ may be relevant conversation include EPA’s ECHO database, EPA’s EJSCREEN, the Climate and Environmental Justice Screening Tool (“CJEST”), and the U.S. Census. None of these tools is perfect or complete. These tools provide only indicators, not determinations, of disparity or lack of meaningful involvement. Beyond the more obvious metrics, data collected on health outcomes, education levels, access to healthy food and the internet, and language proficiency can inform identification of EJ opportunities.

Companies are implementing EJ strategies to confront the refreshed EJ emphasis proactively. Strategic EJ implementation can yield real benefits and complement investments in Environment, Social, and Governance (“ESG”) objectives. Businesses that hesitate to incorporate EJ principles into their corporate sustainability strategies open themselves up to stakeholder (e.g., regulatory, community, and employee) scrutiny.

The Business Case for EJ

Implementing an EJ strategy is good for long-term business durability and sustainability.[x] Stakeholders, including shareholders, employees, supply (or value) chain partners, customers, and community members are increasingly demanding that companies be good corporate citizens. Ahead of regulatory mandates, businesses are confronting growing pressures to articulate corporate sustainability principles and execute on them. Social impact assessments are emerging in transaction due diligence and influencing commercial dynamics; these can include EJ evaluations. Employees are demanding that employers not only demonstrate commitment to diversity, inclusion, and equity internally, but walk the talk externally to advance EJ in impacted communities as well.

Environmental injustice is bad for business. Adverse outcomes ripple. Companies do not operate in a vacuum. In today’s tight labor market, for example, the very communities that could be a local workforce and offer innovative ways of operating and impacting the surrounding area are experiencing real barriers to advancement in today’s economy. Implementing an effective strategy for meaningful engagement with EJ communities can not only lead to diversity of a company’s workforce but can also reveal durable, community-driven improvements.

Neglecting investment in disproportionately impacted communities deters growth of economic power, diminishes community welfare, and slows advancement of the next generation of contributors, consumers, and leaders. Ignoring the environmental impacts on underserved communities perpetuates an un-virtuous cycle where poor health outcomes, poverty, and societal conditions repeat for generations – a cycle that is very much not consistent with corporate sustainability.

Proactively weaving meaningful EJ objectives into business strategy can better position a company for success when regulatory and policy changes inevitably emerge.

Focusing on EJ complements ESG objectives, aligning environmental impacts, social and racial equity, and governance with community-centric metrics can enhance collaborations between businesses and the communities impacted by their operations.

Projects in Peril and Reviews by Regulators

Local opposition and the related uncertainty over project postponements create real challenges for businesses. In one example, an international petrochemical company, Formosa Group, proposed to build a $9.4 billion chemical and marine shipping facility in St. James Parish, Louisiana. The project faced strong community opposition due to environmental and EJ concerns that the new plant would adversely impact the area EJ activists call “cancer alley.”

The U.S. Army Corps of Engineers (“USACE”) initially issued a dredge and fill permit to the company in 2019. After EJ advocates challenged the permit on behalf of the predominantly black fence-line communities, the USACE suspended the permit in 2020. In August 2021, the Acting Assistant Secretary of the Army announced that a full environmental impact assessment was warranted, stating: “[t]he EIS process will provide opportunities for voices to be heard in an open, transparent, and public way.”[xi] The average time to complete an EIS is approximately four and a half years.

In another example, Acting Regional Administrator for EPA Region 5, Cheryl L. Newton, urged the Michigan Department of Environment, Great Lakes, and Energy to perform a cumulative impacts analysis before issuing an air quality permit to Ajax Materials, Corp., for construction of an asphalt plant. The Region recommended analyses of ambient air impacts on the community and evaluation of whether the proposed construction will cause “adverse and disproportionate impacts for nearby residents.”[xii]

In the letter dated September 16, 2021, the EPA also encouraged the company to consider an alternative site to avoid potential impacts uncovered by the additional review, and, if the plant is permitted, encouraged the company to generate data regularly on an easily accessible website for the community. The EPA also nudged the company to “engage with the local community to address community concerns that may not be within the scope of the air permit.”[xiii] These messages are consistent with the explicit EJ priorities and objectives outlined in the EPA’s draft Strategic Plan and are likely to be repeated by other EPA Regional Administrators.

The EPA is increasing personnel in its regional offices to focus on its EJ strategy. Recent publications outline the authorities and activities relevant to increasing scrutiny on permitting, enforcement, and other processes in support of EJ for EPA managers and staff. These include Principles for Addressing Environmental Justice in Air Permitting dated December 22, 2022, EJ Action Plan dated September 2022, EPA Legal Tools to Advance Environmental Justice dated May 2022, and EPA Legal Tools to Advance Environmental Justice: Cumulative Impacts Addendum dated January 2023.[xiv] More guidance for regulators and the regulated community is expected this year.

In Idaho, the U.S. Attorney for the District of Idaho launched an EJ reporting hotline to “protect the community from harmful violations of federal health and safety laws.”[xv] The EPA is also including EJ in enforcement actions against Idaho companies using existing statutory authorities.

EJ as a Key to Corporate Sustainability

The ESG framework can facilitate risk management to ensure long-term corporate sustainability and can highlight opportunities to create value for long-term success. ESG derives from notions of corporate sustainability and the enterprise leadership that stakeholders expect will confront risks and identify opportunities that increase value. The guiding principles of ESG are rooted in the United Nations Global Compact(2000) and subsequent report Who Cares Wins (2004).[xvi]

ESG factors selected by companies as material priorities are unique to each organization. Environmental factors address the business’ long-term ability to secure raw materials and to produce goods and may include pollution, packaging, climate change resiliency, biodiversity, soil health, or energy use. Social factors address the business’s long-term relationships with people and society and may include workforce and workplace priorities, supply (value) chain impacts, economic opportunities in impacted communities, or education. Governance factors address the leadership and accountability of the business amid uncertain and complex commercial realities and may include compliance, business ethics, transparency, board diversity and leadership pipeline, internal controls, or reporting and accountability practices.

Much is written and debated about the implementation of ESG and the lack of standardized methods to determine material risks, institute adequate controls, and clearly communicate progress toward desired outcomes. The most well recognized and widely employed standards for implementing ESG strategies are developed by the Global Reporting Initiative (“GRI”),[xvii] an international standards organization that helps businesses quantify and communicate on ESG impacts.

In 2022, 78% of global 250 companies used the GRI framework.[xviii] Overall, the standards create a continuous improvement cycle that places measurable ESG goals at the center of corporate decision-making and action. ESG standards encourage systems that monitor, report, and reevaluate relevant metrics, creating a holistic picture of current operations, material risks, and possible opportunities. The holistic, stakeholder influenced framework that informs the E, S, and G factors can incorporate the lived experiences in fence-line communities – where EJ is ripe.

A successful ESG program begins with a materiality assessment, a candid and stakeholder-driven review of risk factors that threaten the long-term sustainability of a business. Identifying risks to mitigate and opportunities for investment future-proof an enterprise and create value. To apply ESG principles to EJ needs, companies meaningfully engage with impacted communities in an assessment to understand the lived experiences in the communities. To be effective, businesses must acknowledge and overcome the cultural, language, and power barriers that might stifle the exchange. Materiality assessments are recalibrated routinely to reevaluate topics that are material, as topics will change with time.

Conclusion

Leading corporate sustainability efforts using ESG as a tool to identify risks and opportunities is a journey and certainly more encompassing than just EJ. As government and other stakeholders express more concrete expectations for narrowing the disparities among communities in America, a commitment to EJ can be a key to ensuring a business’s future and to creating value that endures.

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[i] See U.S. EPA, Learn About Environmental Justice (last visited Mar. 27, 2023), https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.

[ii] See Robert R. Kuehn, A Taxonomy of Environmental Justice, 30 Envt’l L. Rptr. 10681 (2000), https://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1137&context=aprci.

[iii] Seema Kakade, Defining Environmental Justice Communities, American Bar Association (Mar. 3, 2023),  https://www.americanbar.org/groups/environment_energy_resources/publications/trends/2022-2023/march-april-2023/defining-environmental-justice/.

[iv] See United Church of Christ, Commission for Racial Justice, Toxic Wastes and Race in the United States (1987), https://www.ucc.org/wp-content/uploads/2020/12/ToxicWastesRace.pdf.

[v] See Clare E.B. Cannon, Intersectional and Entangled Risks: An Empirical Analysis of Disasters and Landfills, Front. Clim. 3 (Dec. 13, 2021) (collecting sources), https://www.frontiersin.org/articles/10.3389/fclim.2021.709439/full.

[vi] Centers for Disease Control and Prevention, Hospitalization and Death by Race/Ethnicity (Dec. 28, 2022), https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalization-death-by-race-ethnicity.html.

[vii] U.S. EPA, FY 2022-2026 EPA Strategic Plan (Mar. 2022), https://www.epa.gov/system/files/documents/2022-03/fy-2022-2026-epa-strategic-plan.pdf.

[viii] U.S. EPA, EPA Administrator Announces Agency Actions to Advance Environmental Justice (Apr. 7, 2021), https://www.epa.gov/newsreleases/epa-administrator-announces-agency-actions-advance-environmental-justice.

[ix] Lawrence E. Starfield, Acting Assistant Administrator, Strengthening Enforcement in Communities with Environmental Justice Concerns, U.S. EPA (Apr. 30, 2021). https://www.epa.gov/sites/default/files/2021-04/documents/strengtheningenforcementincommunitieswithejconcerns.pdf.

[x] See Richard L. Harris, Environmental Justice is Good Business, American Bar Association(Oct. 1, 2003),https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/human_rights_vol30_2003/fall2003/irr_hr_fall03_business/; Thomas P. Lyon & John W. Maxwell, Corporate Social Responsibility and the Environment: A Theoretical Perspective (Oct. 2007), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1011793; Lucy Perez et al., Does ESG Really Matter—and Why?, McKinsey Quarterly (Aug. 10, 2022), https://www.mckinsey.com/capabilities/sustainability/our-insights/does-esg-really-matter-and-why; Robert G. Eccles, From “Who Cares Wins” to Pernicious Progressivism: 18 Years of ESG, Forbes (Nov. 5, 2022), https://www.forbes.com/sites/bobeccles/2022/11/05/from-who-cares-wins-to-pernicious-progressivism-18-years-of-esg/?sh=159b631379fe.

[xi] Memorandum for Commanding General, U.S. Army Corps of Engineers, Formosa Group Chemical Plant Environmental Impact Statement (EIS) and Referral for Decision, Department of the Army at 1 (Aug. 18, 2021), https://www.biologicaldiversity.org/campaigns/ocean_plastics/pdfs/Formosa-Memo-Signed-18-Aug-2021.pdf.

[xii] U.S. EPA, Letter to Mary Ann Dolehanty at 2 (Sept. 16, 2021), https://www.epa.gov/system/files/documents/2022-03/ajax-egle-permit-comment-letter-9-16-2021.pdf.

[xiii] Id.

[xiv] U.S. EPA, EJ in Air Permitting – Principles for Addressing Environmental Justice Concerns in Air Permitting (Dec. 22, 2022), https://www.epa.gov/caa-permitting/ej-air-permitting-principles-addressing-environmental-justice-concerns-air; U.S. EPA, EJ Action Plan (Sept. 2022), https://www.epa.gov/system/files/documents/2022-09/OLEM-EJ-Action-Plan_9.2022_FINAL-508.pdf; U.S. EPA, EPA Legal Tools to Advance Environmental Justice (May 2022), https://www.epa.gov/system/files/documents/2022-05/EJ%20Legal%20Tools%20May%202022%20FINAL.pdf; U.S. EPA, EPA Legal Tools to Advance Environmental Justice: Cumulative Impacts Addendum (Jan. 2023), https://www.epa.gov/system/files/documents/2022-12/bh508-Cumulative%20Impacts%20Addendum%20Final%202022-11-28.pdf.

[xv] U.S. Attorney’s Office, District of Idaho, Environmental Justice & Public Health (last visited Mar. 27, 2023), https://www.justice.gov/usao-id/Environmental%20Justice.

[xvi] See United Nations Global Compact (last visited Mar. 27, 2023), https://unglobalcompact.org/; Who Cares Wins: Connecting Financial Markets to a Changing World, Swiss Federal Department of Foreign Affairs and United Nations (Dec. 2004), https://www.ifc.org/wps/wcm/connect/de954acc-504f-4140-91dc-d46cf063b1ec/WhoCaresWins_2004.pdf?MOD=AJPERES&CVID=jqeE.mD.

[xvii] See Global Reporting Initiative (last visited Mar. 27, 2023), https://www.globalreporting.org/.

[xviii] KPMG, Big Shifts, Small Steps – Survey of Sustainability Reporting 2022 at 24 (Oct. 2022), https://assets.kpmg.com/content/dam/kpmg/xx/pdf/2022/10/ssr-small-steps-big-shifts.pdf.

Tenielle Fordyce-Ruff

Some of my early essays in this column covered ways to make paragraphs better.[i] But it’s been a while since I returned to the idea of constructing good paragraphs.  If you’ve been a long-time reader of The Advocate, you know tips for making strong paragraphs like sentence length, transitions, cohesion, and unity.

But what about balance? Or style?  How do all these concepts come together?

Legal writing needs to function well, but it doesn’t need to be boring or so utilitarian that the reader can’t enjoy reading at times.  So, let’s look at some way we can balance the need for function but also add occasional panache to our paragraphs.

Size Matters

My favorite analogy that describes the legal reader is that she is a juggler.[ii]  It goes like this: “Most competent jugglers can juggle two and three balls with little effort. Likewise, most legal readers processing a sentence can keep two or three ideas aloft in their minds before the period cues that the sentence has ended and the ideas presented can finally be integrated. But things get risky from there.”[iii]

Trying to juggle too many balls, like trying to process a sentence with too many ideas packed into it, is taxing.[iv]  And eventually both the juggler and the reader will drop something.  Now for jugglers this isn’t bad, but when we are trying to convince our readers that our position is sound, causing them to drop an idea is bad.  Indeed, “the reader will hate you for making her work so hard.”[v]

So, using shorter sentences with fewer ideas packed into them ensures that the reader can comprehend the ideas and still have the brain power to do the critical legal reasoning we are asking of her.[vi]

But Variety Does, Too

Prose sings when it has “variety in sentence length and structure, not adhering to strict medium-length-sentence-only rules.”[vii]  To harken back to a favorite example I shared years ago: “This sentence has five words. Here are five more words. Five-word sentences are fine. But several strung together become monotonous. Listen to what is happening. The writing is getting boring. The sound of it drones. It’s like a stuck record. The ear demands some variety.”[viii]

Did your mind start to drift because the sentences sounded so staccato?  Again, not so critical when perusing this column, but using all short sentences is another sure-fire way to make your legal reader hate you.

So, how do you build paragraphs that allow the reader mental space to do legal reasoning yet keep her interested in the prose?  By creating a balance.

Start Small

First, the best paragraphs start with both a short word and a short sentence.  Changing from heavy, long transitions to short ones “can lighten your writing overnight, almost as if you were oxygenating your style.”[ix]

One-word transitions followed by an easy-to-grasp assertion in the topic sentence help the reader for two reasons.  One-syllable transitions (but, yet, and, nor, so) create a tempo that quickly shows the logical link between the last and current paragraph without creating an overload for the reader.[x]  And short topic sentences quickly give the reader the context that will help her see the logic and reasoning in the paragraph.

Grow Out

While legal readers prefer short sentences, paragraphs can build.[xi]  Longer sentences can add elegance, eloquence, and style to writing.[xii]  That’s not to say that you should strive to simply add words to the sentence in the middle of a paragraph.  In fact, sentences full of excessive adjective and adverbs, clichés, overdeveloped metaphors, or pretentious vocabulary can lead the reader to pay attention to the writing itself instead of the ideas and reasoning the writing needs to convey.[xiii]

So, if extra words don’t help, what does? First, never lose sight of the function of legal writing: to be clear, competent, readable, and precise.[xiv]  When in doubt about whether writing is too much, simply don’t.  Always err on the side of function.  But, some subtle techniques used sparingly can add a touch of style.

Alliteration & Assonance: the repetition of vowel or consonant sounds.[xv]

Cadence: the rhythmic flow, like the beat of music.[xvi]

Parallelism: the use of similar grammatical structures in pairs or series of related words, phrases, or clauses.[xvii]

Onomatopoeia: words that represent sounds (these can make writing pop!).[xviii]

Metaphor & Simile: direct and indirect comparisons (but only if they are fresh or insightful).[xix]

And, occasionally joining two closely related sentences into a single, longer sentence can add some sophistication to your writing.[xx]  When two sentences are about the same person (party or court), shift the one to a dependent clause to add some elegance.

Consider this example from a recent Idaho Supreme Court opinion:[xxi]

On intermediate appeal, the district court affirmed the magistrate court’s valuation of the BSA shares. It concluded that substantial and competent evidence supported the magistrate court’s determinations on valuing the BSA shares.

A simple shift could help the flow and eloquence:

On intermediate appeal, the district court affirmed the magistrate court’s valuation of the BSA shares, concluding substantial and competent evidence supported the magistrate court’s determinations on valuing the BSA shares.

Or look at this possibility:

Concluding substantial and competent evidence supported the magistrate court’s determinations on valuing the BSA shares, the district court affirmed the magistrate court’s valuation of the BSA share on intermediate appeal.

End with Pith

Finally, end the paragraph with another short, easy-to-read sentence.  Not only does this sum up the ideas in the sentence, it allows the reader an opportunity to check her understanding of the content in the paragraph.  And, as an added bonus, you can exploit a position of emphasis with a strong sentence.[xxii]

Connect the Branches

We all want our writing to interest the reader. So perhaps take this image as the parting message.  Make your paragraphs shaped like Idaho’s state tree: The Western White Pine. These trees are small at the top, grow wider as they descend toward the forest floor, then narrow again as the trunk and the ground meet.

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[i] Tenielle Fordyce-Ruff, Ten Steps to Build Better Briefs Part I, 56-Sep Advoc 58 (2013); Tenielle Fordyce-Ruff, Ten Steps to Build Better Briefs Part II, 56-Oct Advoc 62 (2013).

[ii] Andrew M. Carter, The Reader’s Limited Capacity, 11 LJALWD 31, 31 (2014).

[iii] Id.

[iv] Id.

[v] Id. at 32.

[vi] Id. at 50.

[vii] Id. at 227.

[viii] Tenielle Fordyce-Ruff, Robust Writing: Crafting Better Sentences, 58-May Advoc 60, 61 (2015).

[ix] Ross Guberman, Point Made 226 (2d ed. 2014).

[x] Id. at 227.  For more on transitions see Tenielle Fordyce-Ruff, Connections Count Part I: Generic Transitions, 60-Aug Advoc 46 (2017) and Tenielle Fordyce-Ruff, Connections Count Part II: Orienting & Substantive Transitions, 60-Sep Advoc 48 (2017). 

[xi] See, Tenielle Fordyce-Ruff, Robust Writing; Crafting Better Sentences, 58-May Advoc 60, 66 (2015).

[xii] Ross Guberman, Point Made 235 (2d ed. 2014).

[xiii] Ann Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation & Style for the Legal Writer 149 (3d ed. 2009).  For tips to help reduce excessive words see Tenielle Fordyce-Ruff, 5 Tips to Combat Verbosity, 56-Jan Advoc 48 (2013) and Tenielle Fordyce-Ruff, Three Tips for Concise Writing 60-Oct Advoc 56 (2017).

[xiv] Ann Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation & Style for the Legal Writer 148-49 (3d ed. 2009).

[xv] Id. at 150-51.

[xvi] Id. at 151-52.

[xvii] Tenielle Fordyce-Ruff, 5 Tips to Combat Verbosity, 56-Jan Advoc 48, 49 (2013).

[xviii] Ann Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation & Style for the Legal Writer 158-59 (3d ed. 2009).

[xix] Tenielle Fordyce-Ruff, Adding Eloquence to Your Legal Writing with Figures of Speech, 56-May Advoc 48, 48 (2013)

[xx] Want more on joining independent clause correctly? See Tenielle Fordyce-Ruff, Creating Separation & Emphasis in Your Writing Part I: Joining Independent Clauses, 54-Feb Advoc 44 (2011) and Tenielle Fordyce-Ruff, Creating Separation & Emphasis in Your Writing Part II: Using Punctuation within Sentences, 54-Apr Advoc 43 (2011)

[xxi] Lamm v. Preston, 2023 WL 125250 at *4 (Idaho January 9, 2023).

[xxii] Readers pay more attention to information just before or just after a break in the text.  Mary Beth Beazly, A Practical Guide to Appellate Advocacy 229 (5th ed. 2019).

Chief Justice G. Richard Bevan

Delivered to the Idaho Senate and Idaho House of Representatives on January 18, 2023.

Introductory Remarks

Have you ever considered that Idaho’s courtrooms are the only places in the state where our citizens can witness all three branches of government in action at the same time? From the application of the laws passed by you, to the enforcement of our state’s laws by the executive branch, to the courts’ administration and interpretation of the laws, these proceedings affect Idaho’s people in profound ways.

I am so grateful for how Idaho’s judges manage these important moments in people’s lives. They, together with the attorneys and staff who labor there, ensure that the promise of justice for people is not merely a slogan, but a reality.

There may be some here who have never visited an Idaho courtroom. I also recognize that a few of you are attorneys. Some of you may have served as jurors or had cases before the courts yourselves. As the people’s representatives, I invite and encourage you to visit the courthouses in your own districts, to see the amazing work that takes place in these government buildings every day.

Idaho’s Judicial Branch fulfills specific duties secured by Idaho’s Constitution, most prominently Article I, Section 18: “Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice.” Our courts fulfill these responsibilities in a variety of circumstances: hearing prosecutions for crimes from petit theft to murder, giving children new hope through adoptions, resolving multimillion-dollar business or probate disputes, and managing contentious breakups of families. Many of these are very demanding and stress-filled events.

A participant in Idaho’s constitutional convention in 1889 observed: “[I]f there is any place in our whole system where politics should be left out of an office, it is in that of the supreme court of the state.” For this system to work correctly, our judges cannot make decisions based on politics, popularity or the public’s wishes, no matter how forceful the drumbeat of the populist band. We construe the law as written. As Chief Justice Roberts has said, the role of a judge is to call balls and strikes; we are not to pitch or bat. Judges simply must follow the rule of law — which applies to us in the Judicial Branch the same as to anyone else in this state. Sometimes this means we reach unpopular conclusions that raise questions. But this is what our Constitution demands and what our judges provide: justice based on the rule of law, no matter the judge’s personal views of the legal principle being applied.

The Idaho Supreme Court’s rulings sometimes draw the most attention, but nearly all the courts’ work is done in Idaho’s local courtrooms — in places like Bonners Ferry, Soda Springs, Driggs, and Weiser. Our 150 magistrate and district judges toil across more than 120 courtrooms in Idaho, rendering decisions based on an evenhanded application of the law. Each of them makes sacrifices for a career in public service.

A judge and court staff must keep the thousands of cases moving while treating all parties without favoritism. And their work does not stop at the courtroom door: Judges volunteer to lead treatment courts and provide education in their communities.

For judges to deliver on all that I have described is no simple task. The job of a judge has become increasingly fraught. The need to remain impartial means it can be isolating work. And personal safety is a topic increasingly on our minds.

President Dwight D. Eisenhower said, “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.” Unfortunately, we live in an age when those who object to the balance in our fair and democratic republic seem increasingly disposed to tearing it down. You see it in your own communities. This climate affects the judiciary in increasingly direct and dangerous ways.

We judges understand that disagreement with our decisions is part of the landscape in which we operate. But when disagreement becomes personal, to the point of threats against personal safety and security, with individuals publishing our private information online, or coming to our homes for face-to-face confrontation, which I and other Idaho judges have experienced, a line has been crossed that must be reinforced — and reinforced convincingly.

We now see protests at judges’ homes meant to, I suppose, disturb their peace, to scare them into submission or to sway their rulings. Some may see this as a means to undermine the core of the rule of law. In some circles the hue and cry has escalated to threats against the lives of judges, including justices on our nation’s highest court. In Idaho, we see veiled threats made online against the courts.

The judges to whom these threats are directed are simply doing their difficult job of making decisions within an established framework of law, regardless of their personal feelings about those laws. These interactions at their homes, at their places of respite and peace, are not just an affront to the rule of law, but also a danger that we ask you to address. Indeed, we have become sadly aware in the recent past of a judge in Wisconsin who was murdered, and judge’s family members in New Jersey and Illinois being killed.

These circumstances deter otherwise talented individuals from becoming judges. Last spring, we surveyed members of the Idaho State Bar about judicial service as a career. Among their most common concerns about becoming a judge was our increasingly polarized political environment. Among all the bills you consider this session, please support any legislation that says two things: (1) the independence of the judiciary must remain inviolable, and (2) judges’ safety is paramount.

Judicial work goes beyond hearings and trials. The job description is about resolving people’s disagreements, while also supporting growth in the people we serve, and developing healthier communities.

One of our deputy trial court administrators recently picked up a lunch order. The manager at the restaurant identified herself as a former drug court participant and said how grateful she was for our judges who gave her a second chance. Her life change wasn’t from a one-and-done hearing before a busy judge. It involved attention and investment by a judge who volunteered to work extended hours, in addition to her or his standard caseload, toiling in early mornings or late nights, to intervene directly in that person’s life and improve her outcomes.

With all this in mind, one of the most important requests I bring you this year is for a salary increase for our judges. Judicial compensation by law is set separately from that of other state employees, and thus requires both substantive legislation and an allocation from the General Fund. Money for a judicial salary increase was appropriated last year, but the substantive statute was not updated to allow it to be paid. This left judges the only state employees not to receive a change in salary in 2022.

Only attorneys who have held a license to practice law for at least five years can seek to become judges in this state — the requirement is at least 10 years to become a district or appellate judge. In all cases, they must have also been a legal resident of Idaho and a member of the Idaho Bar for at least two years. This means our pool of potential new judges comes exclusively from Idaho.

Compensation — particularly, compensation that is more competitive with what an experienced Idaho attorney can earn in today’s market — was also among the important concerns raised in our survey of the Bar. For district court openings in 2022 we averaged just five attorneys per opening. With no disrespect to those who applied, this is simply inadequate. Indeed, our neighbor Utah’s judicial compensation commission is recommending a 10% pay raise for Utah judges based on the limited number of lawyers applying for judgeships, where the applicant pool has shrunk by more than half since 2011.

Further complicating the situation is the economic backdrop. After the workforce uncertainties of the past three years, our branch is not the only part of government grappling with how to keep positions competitive. In some counties that have granted pay increases, certain attorneys are paid as much as or more than the district judge in whose courtroom they appear. This discrepancy affects our ability to recruit highly qualified attorneys to the judiciary.

I ask that this session you consider legislation on judicial compensation that helps maintain a highly qualified and experienced judiciary.

As the third branch of government, Idaho’s judges must be independent, but we believe strongly in collaboration to serve the public. One example is the work of the Idaho Behavioral Health Council, which I will speak to later. Another example is our partnership with each of Idaho’s 44 county governments to conduct the day-to-day work of the courts. Behind each of our access to justice services, you will find dedicated court staff who process filings, develop the record, offer translation, provide security, and perform too many other duties for me to list. Increasingly, we see challenges in filling court positions, and in keeping experienced staff who find less stressful, more lucrative opportunities elsewhere.

Though our courts are a “unified and integrated judicial system for administration and supervision by the Supreme Court” (Idaho Const. art. V, § 2), we strive daily to support our county partners who have to provide court facilities. For example, when counties upgrade or renovate courtrooms, the Supreme Court provides certain equipment to ensure all courtrooms have consistent and appropriate technology to preserve the official court record, to present evidence and to manage remote proceedings when needed.

Included in these technological advances is a new system we are offering to counties that will allow courts to oversee the summoning and managing of juries more efficiently. Historically, counties have selected, purchased, and managed their own jury systems. The result is that Idaho’s citizens who are summoned to be on juries have disparate experiences and services depending on what their county can fund. Some counties have been able to provide simpler online and phone systems for jurors; others have not. Some counties have been able to text status updates to jurors; most have not. The Court’s jury management system, offered to all counties, can provide efficiencies, and simplify the process for all Idahoans called as jurors.

Many counties are now interested in using our solution as their own systems are being decommissioned, and we are offering this solution to the counties at no charge. You have a request before you this session to fund added services that will improve the options available to our counties through this advancement.

Smooth trial management helps us continue to address our case backlog. In calendar year 2022, we held over 20% more jury trials than in 2021, and over 30% more jury trials than in 2020. We have made particular headway on felony criminal cases. Statewide, we closed 12,700 felony criminal cases in 2022, more than 1,000 more than we closed in 2020.

I advised when I last spoke to you that it could take a couple of years to fully address the effects of the pandemic. I’m pleased to share that our courts are diligently addressing these circumstances. Our courthouses hosted as many trials in 2022 as they could arrange with the resources available. Mediation has been in high demand to resolve both civil and criminal cases. Some courts have found more success than others, and some had little backlog, putting them in a better place to start with. All are making noble efforts to resolve these pending cases.

Modern technology helps us move cases along, and it brings continued benefits for court users. “Access to justice” means three things for every person facing a legal issue. First, they are able to secure their rights under the law; second, they can be part of a fair process to resolve claims; and third, they receive a timely and impartial resolution of their case.

In the past, when we’ve talked about access to justice we’ve talked often about actions at a physical courthouse: ADA accommodations, language services, and on-site assistance for people representing themselves in court. Technology now offers more ways to make court access easier and less disruptive — and the people of Idaho expect us to use it.

A quick example are remote hearings done over video. Consider a single parent who may need to secure a babysitter or miss work for a 15-minute hearing — or a farmer in the field whose day is interrupted by that short court appearance. In both cases, thoughtful use of videoconferencing makes court more convenient while maintaining each person’s rights and options.

With video, interpreters can now help litigants from afar. Self-represented people get help from our court assistance offices who review their legal documents over email. And our Guide & File service helps those self-represented parties understand and submit certain filings without ever having to enter a courthouse.

The Supreme Court is rescinding the last of our emergency orders from the pandemic, but remote proceedings as a courtroom tool are here to stay. Earlier this month, we issued an order extending our current directives on remote proceedings while we study long-term rules and procedures. I look forward to updating you on what those become.

With these technological innovations, security for the courts’ digital court records is a constant concern. Cybersecurity requires vigilance to protect the courts from threats both local and international, as conflict in other parts of the world can lead to an increase in cyberattacks against governments within the U.S. Online tools to impersonate people, to steal their identities and cause chaos are only becoming more refined and accessible.

Our Information Technology Division stays hard at work installing better protections for our computer-dependent court system and its electronic records. Our digital security applications have successfully rejected the threats so far, maintaining the steady operation of the courts and the safety of our data. But cybersecurity risks are ever-changing, and the resources required to fight them are ongoing.

The primary way we pay for all our technology needs, including the advances just mentioned, is through the Court Technology Fund. It is financed through fees this body has imposed in criminal and civil court cases. But as the evidence now shows, and as my predecessors have noted through the years, running a court department with a user-funded system is unworkable. As a result, the Court Technology Fund now faces unprecedented challenges. Technology costs in the past five years have risen an average of 9% each year. That’s nearly 50%. Meanwhile, in the last three years in particular, the court fines and fees that support this fund have declined an average of 5% each year. That’s over 15%.

These increased expenses are not limited to those associated with holding court remotely. They include cybersecurity protection and computer equipment for our local clerks and judges, not to mention cost increases of as much as 30% in software licenses and credit card processing fees. The technology fund also pays the salaries for our court technology employees, which have increased in the recent past as well.

The Idaho Supreme Court is working with a third-party consultant to reassess our technology costs and develop a stable, efficient method to fund them. I look forward to when I can bring you that long-term plan. Until then, we seek your help to provide short-term support for the Court Technology Fund and its important essentials. This includes a request for one-time dollars to supplement our current technology needs, and a request to move three key information technology positions from the Court Technology Fund to the General Fund.

One other funding change is already in the making: When parties submit documents for filing, our e-filing software provider charges a fee for processing each civil filing through what are called “electronic envelopes.” We have covered the charges for these envelope fees through the Court Technology Fund. Now, the fund cannot continue to pay for these expenses as a subsidy for civil litigants. Last year the Legislature provided one-time funding for these fees while we determined a solution. Beginning in July this year, civil filers will pay this fee at a cost of no more than $5 per envelope. This fee will be a recoverable cost of litigation through court rules, and there will be no such fee associated with criminal filings.

While I have focused on our challenges thus far, I am also pleased to report on our successes.

Treatment courts provide support, supervision and accountability for people in the justice system with significant substance abuse and mental health issues. Beyond just imposing consequences, these courts help participants achieve stability, sobriety, and become valuable members of their communities.

Idaho is a national leader in the treatment court space. In what is now our twenty-fifth year since our first treatment court was launched in Kootenai County, we continue to evolve and improve them.

Various drug, veterans, DUI and mental health courts are now available in 86% of Idaho’s local courthouses. Lives change and continue to change, as nearly 500 people graduated from treatment courts in the 2022 fiscal year, and 36 drug-free babies were born to mothers participating in those treatment courts — statistics that I find delight in reporting. The ripple effect of these transformations goes well beyond the literal cost savings in corrections or to our societies from reduced drugs and crime. These benefits are profound and immeasurable for these graduates, their families, friends and communities. I invite you to attend a graduation in one of these courts to witness for yourselves the impact these courts have.

This past year, the Supreme Court adopted rules to support these courts. The rules provide uniformity for our adult treatment courts while still allowing for local variations in practice. This exercise was truly a community effort, with input from judges, our Treatment Court Committee, local stakeholders and members of the public. We hope the rules will lead to even greater success in these courts – providing good options to avoid incarceration when feasible.

In addition, the judiciary continues to support the mission of the Idaho Behavioral Health Council, our collaboration across the three branches of government focused on better solutions for those in this state who live with mental illness and addiction.

One piece of the Council’s work that the Judicial Branch directs is an exercise that brings together stakeholders from across a community’s behavioral health and justice systems to better understand how those systems overlap. These discussions lead to solutions that address gaps in behavioral health services.

We have previously relied on national facilitators to lead these exercises. In an important development, we now have skilled Idaho facilitators who can conduct this work, leaving us more flexible and capable of deeper conversations on potential gaps. As this continues, we’ll be able to see the overlap in what communities need for behavioral health training and resources — data that I hope will also aid your own decisions on funding and policy.

As you’ve seen, the work of the courts is wide-ranging and weighty. President Andrew Jackson once expressed: “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous judiciary.” I wholeheartedly agree and ask your support of that objective. I hope today I have helped each of you better understand the work of our branch. With your support, we will continue to accomplish our duty of delivering fair and reasoned justice every day.

Thank you.

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Sarah E. Tompkins

In recent years, the Idaho Supreme Court has been tasked with deciding issues that have a wide-ranging impact on the law in Idaho – many of these resolving issues of first impression. In doing so, their decisions reflect a deliberative, intentional approach to the manner in which the Court approaches cases and issues. It seems, at least to me, that this is a historic moment for the Idaho Supreme Court, marking a time where clearly defining the scope of appellate review, remaining mindful of the importance of preservation of the issues, and providing a clear understanding of the full rationale behind the results in every case has clear primacy.

As someone who tries to follow trends in appellate law – both from the United States Supreme Court and from Idaho’s appellate decisions – I had seen articles, interviews, and read portions of the speeches that united States Supreme Court justices had given. Some of those pieces gave me a changed perspective that caused me to revisit my own practices on both the appellate and the trial level. Selfishly, I was hoping that there might be a chance to pose some of those same large, overarching questions of jurisprudence to a member of the Idaho Supreme Court. I was both surprised and delighted when Idaho Supreme Court Justice Robyn Brody agreed to sit down with me and answer some of those questions.

Justice Robyn Brody is presently the Idaho Supreme Court’s longest serving Justice on the Court and is currently the only Justice who was seated on the Court after being elected by the people of Idaho.  Prior to joining the Idaho Supreme Court, Justice Brody practiced law in the Twin Falls area for almost 20 years.  When Justice Brody was elected to the Idaho Supreme Court, she became only the third woman to ever sit on Idaho’s highest court.

During her election campaign, Justice Brody focused on the desire to bring a tenor to the Court that emphasized objectivity and restraint in its dealings with the lawyers who argue before Idaho’s appellate courts.  This mission likely came as no surprise to those who knew her as an advocate in the Magic Valley.  Prior to her service on the Idaho Supreme Court, Justice Brody had a reputation within the legal community for her civility and collegiality.  As a result, in 2014, Justice Brody was the recipient of the Idaho State Bar Professionalism Award for her district.

In her role as Justice on Idaho’s highest court of last resort, Justice Brody has authored nearly 150 majority opinions in her six years as an Idaho Supreme Court Justice.  She recently sat for a conversation with me and shared her insights about the law, appellate practice, the role of the courts, and what she hopes her own legacy might be someday as an Idaho Supreme Court Justice.

If you could give three pieces of advice to someone who was preparing for their first oral argument on appeal, what would those be?

The first piece of advice is to make sure the advocate understands what an appeal is.  An appeal is all about legal error and an appellant has to be able to identify what the error is.  The second thing they have to be able to identify is the lens through which the appellate court actually looks at and reviews that error – this is the standard of review on appeal.  In connection with understanding and applying the standard of review, a litigant also has to ask, “What am I asking the appellate court to do about the error, and can the court do something about this error?”  If you start with these initial considerations, you are off to a great start.

Another thing I would advise attorneys to do, especially if they have never done an appeal before, is to watch other oral arguments – particularly the State Appellate Public Defenders and the Deputies Attorney General who appear frequently before the appellate courts.  They really understand what appellate advocacy is and have a rhythm with the court.  I think their arguments are very well done and would help any attorney navigate an appellate argument.

Finally, I would say that you can’t overprepare.  Really understanding your record, especially if you didn’t handle the trial proceedings in the first instance, you need to be intimately familiar with what happened.  On appeal, we are picking up the cases much like we are picking up a banker’s box never having seen its contents before.  As a Justice, I know that I don’t know the case like the attorneys do because I have argued as a practitioner and as a Justice I can’t know the record like the attorneys do.  Sometimes we wonder or have questions about what happened or why something happened.  I love it when an attorney can stand up and say, “I’ll tell you why it happened.  I’ll tell you why the judge did such-and-such,” and can really give a practical viewpoint to the record and explain why things happened the way that they did.

Related to that, what are some common mistakes that appellate attorneys make?

Approaching an appellate argument like you would a jury trial or like you would arguing in the first instance with a trial judge.  This is especially true with issues like expert witness testimony or other evidentiary decisions.  So many evidentiary issues at trial are discretionary calls for the trial court.  Our lens, when the Supreme Court looks at the issue, is very focused.  We are not going to jump in and change an evidentiary ruling very often.  If you are going to argue that a trial ruling is an abuse of discretion, you really need to ask yourself, “Under the Lunneborg[i] factors, where did the trial court go wrong?”  If it was the legal analysis prong, you need to start there.  That is where most successful abuse of discretion arguments are going to rest.  That is where you should spend your time.

Sometimes tone is an issue, too.  At times, great trial attorneys will come in and approach our bench like a trial.  It’s not the same thing at all in terms of substance or even style.

What about advice for trial judges?

I would pass along a piece of advice that Justice Stegner gave me at one point.  You can’t worry about being wrong.  Sometimes it is easy as a trial judge to think of an appeal as a scorecard or report card on your work, and it really isn’t.  There are a lot of really sticky legal issues that quite frankly could reasonably be decided either way – or in any number of ways.  At the end of the day, the judge has to make the call.

The beauty of the appellate system is there are five of us.  I think the constitution envisions that five heads are going to do a better job parsing a decision for a system, rather than just one. But those appellate decisions aren’t report cards.

What is your view of the importance of unanimity in appellate decisions, as well as the role of concurring and dissenting opinions?

I think the most powerful tool that any appellate jurist has is the unpublished dissent.  What I am talking about are those cases where someone will pen a dissent and will actually flip the entire decision.  The public never sees it.  Often with these decisions, the justice can explain in a few paragraphs what is wrong with the majority opinion and why it is that it shouldn’t stand.  There is enormous value in that tool.

As far as the value of unanimity, it brings a level of certainty for the bench and the bar.  It hopefully settles an issue for the cases to come.  Most of our decisions are unanimous.  Well over 90% of our decisions.  We are not the Supreme Court of the United States; we take up a lot of different issues than the Supreme Court of the United States and I think our function is much different.  We have an error-correcting component to our work that the Supreme Court of the United States really doesn’t have.  Outside of the federal statutory realm, they don’t fix errors.  They pronounce constitutional judgments.  You can’t bounce around from a legal perspective – you need steady, even-handed decisions.

There is also value to concurring opinions.  They can clarify points of law, add nuance, or give another perspective that can be valuable.  Dissenting opinions and partial concurrences can sometimes lay the groundwork for future opinions or additional arguments – especially where the arguments didn’t get made within the present case.  Because we have kept pretty tightly to the party-presentation principle, these opinions may keep the door open to another path.

On the issue of stare decisis, how important is consistency to Idaho appellate decisions?

When it comes to state law, especially as we are the keepers of the common law, it is important to keep the law predictable, steady, and knowable.  At the same time, there is a tension in making sure that you decide the issues correctly.  This tension also presents itself in decisions such as whether to overturn precedent.  Keeping the law predictable can sometimes be at odds with our party-presentation principle.  Our court, particularly in the last six years, has sounded a drum beat that we will not take up new issues or arguments that were not presented to the trial court.  At the same time, sometimes that doctrine gets to be challenging.  We want to get the law right.

Is it a frustrating experience as an appellate jurist to see what you think is the best or a better argument and no one seems to be making it?

It can be, although I don’t know that “frustrating” is the right word.  We walk a delicate line between staying true to the issues that the parties have brought to us but at the same time making sure that we are deciding the law in the best way possible.  As a practitioner, I can think of a footnote that appeared in a case and feeling that it wasn’t right.  I thought the Court took up an issue and decided it wrong when nobody invited them to weigh in on it.  As a Justice, that footnote weighs on me.  That experience factors into my decision making and is one of the reasons why you won’t find footnotes in my opinions.

There seems to be a trend with the current composition of the Idaho Supreme Court to provide more of an explanation of the principles behind its decisions.  Is that a deliberate plan or focus of this Supreme Court?

Speaking for myself, it is important for any legal decision to walk through all of the steps that any lawyer would need to walk through when analyzing a legal issue.  We have used this phrase in a recent opinion: “You have to show your work.”  Just like a math problem.  Contrary to what some might think, there really is a methodology and logic behind the rule of law.

Dean Don Burnett from the University of Idaho College of Law teaches courses to journalists and teachers about how to read legal opinions, as well as how to understand what’s going on in a courtroom.  He tells people to pretend they have a rule-of-law magnet in their hand that attracts statements of the rule of law – if you put that magnet down on the article or writing, what would be attracted to it and what do those statements show about the legal issues?  Is there any rule of law that is being explained or is it just someone expressing outrage at the result without any discussion of what the issue was, what the rule of law was, and how the judge analyzed the facts as they relate to that rule of law?

What Dean Burnett is telling those teachers and journalists is that there is a process.  I agree with Dean Burnett that there is a process; that’s what we went to law school to learn.  Our opinions should reflect that process.  That being said, sometimes an opinion can go too far and show too much work to reach the result.  It’s all about balance.  It’s important to explain to people why.

My freshman sociology professor in college gave us a bumper sticker that said, “Why is that?”  I know that, for myself, I try to answer that question in every opinion that I write.  I am quite sure that the opinion is going to be unpalatable for at least half of the parties, and maybe all of the parties.  Knowing that at least one side of the legal dispute will likely be disappointed in the outcome, these opinions need to answer the question of why we reached a particular decision for both that case and for future cases.

What would you hope to be the legacy that you leave behind as an Idaho Supreme Court Justice and the qualities that you would hope to be known for?

I hope I am a Justice who follows the law, wherever that takes us.  I hope I am a Justice that people recognize as being willing to set aside personal views or preferences, and who makes a decision that is in accord with the law.  When I say, “the law,” I mean statutes and the constitution.  I have a very definite viewpoint about the role of the courts, and I believe strongly in the separation of powers.  Our system works best when every branch of government stays in its lane of travel.

That requires respecting legislative prerogatives to legislate and make policy decisions.  For me, it means to read a statute plainly, with its ordinary meaning, as an average person would.  It’s not about what I think.  It’s about what the law says and what the law is.  I hope that people recognize, over time and through my work, my writing, and my decision making, that this is my philosophy.

Note: Ms. Tompkins wishes to give her sincere thanks to Tresha Griffiths, Judicial Assistant to Justice Brody, for her patience and invaluable assistance in making this article possible.

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[i] Lunneborg v. My Fun Life, 163 Idaho 856 (2018).

Jonah J. Horwitz

Most of the time, the lawyers who specialize in representing habeas petitioners in federal court are treated as curiosities by the rest of the criminal defense bar.  That is for good reason, as habeas law is complex, convoluted, and usually irrelevant to the day-to-day practice of anyone outside the tribe.  Sometimes, however, developments in federal habeas law significantly impact the long-term consequences of decisions made by defense attorneys years earlier.  Such a development took place in 2022, when the United States Supreme Court handed down its decision in Shinn v. Ramirez.

My goal here is to outline the major implications of Ramirez for Idaho defense lawyers who handle cases in state court, either at the trial, appellate, or post-conviction levels.  In particular, I will focus on the broad lessons of Ramirez in terms of what they suggest about how a state court lawyer can best situate her client for prevailing in federal habeas, should the case get that far.[i]  By way of caveat, the article will not speak to the separate question of what strategies lead to the best outcomes in state court proceedings themselves.  That is something for a skilled and experienced state court practitioner to comment on – not federal habeas lawyers, whose focus is always on the remedy of last resort.

The Pre-Ramirez Safety Net

First, some background is necessary, though I will try to avoid driving away the reader with too much habeas[ii] arcana.  In 1991, the Supreme Court decided Coleman v. Thompson.  Coleman addressed the question of whether ineffective assistance of counsel at the state post-conviction stage could serve as an excuse for a federal habeas court to reach the merits of a constitutional claim.  That is, when a state post-conviction lawyer should have asserted a particular issue and failed to do so without any good reason, is her mistake a basis for the inmate to have the claim heard in federal court?  Coleman’s answer was no.[iii]

The Supreme Court radically altered course in 2012, when it changed the answer to yes.  In Martinez v. Ryan, the Court held that ineffective assistance of post-conviction counsel provided cause for federal courts to reach one important set of claims.  Those claims were limited to ineffective assistance of trial counsel.[iv]  The rule from Martinez applied to most state systems in which trial-ineffectiveness is typically asserted in post-conviction proceedings, rather than on direct appeal.[v]  That made it the rule in Idaho.[vi]

After Martinez, in states like Idaho, a safety net existed for federal constitutional claims that had been wrongly left out of state court litigation.  For the many claims that could be framed in terms of ineffective assistance of trial counsel, the doors to the federal courthouse were now open.  It became a significant exception for a couple of reasons.  One is that, for any claim that has been assessed on the merits in state court, federal habeas review is hamstrung by an extremely demanding standard.[vii] But Martinez claims were by definition not considered on the merits in state courts, as they were missed by initial post-conviction counsel, so they received de novo review in federal habeas.[viii]  The second key aspect of Martinez for present purposes was that it allowed, at least in the Ninth Circuit, substantial expansion of the record in federal court beyond what was presented in state proceedings.[ix]

The Net Removed

That brings us to Ramirez, which appears to have closed much of the window opened by Martinez.  The upshot of Ramirez is that, with limited exceptions most likely applicable in few cases, petitioners whose post-conviction attorneys overlooked claims are now prevented from expanding the record in federal court.[x]  That is a serious problem for the average ineffectiveness claim.  If the claim was missed by post-conviction counsel, the facts supporting the claim were probably left out of the state court record as well.  And if habeas counsel cannot bring the facts out in federal court, they will be off the table altogether.

It is a particularly concerning predicament when it comes to establishing prejudice.  When a trial attorney is faulted for an omission, precedent requires a showing of a reasonable probability of a different result had the action been taken.[xi]  Evidence of how things would have turned out differently is almost invariably outside of the trial record.  And if it is outside the initial post-conviction record as well, it is likely barred from federal review, and the claim will meet a swift death in habeas.[xii]

Prepping for Habeas Post-Ramirez

It is time, then, to turn to how state counsel should react to Ramirez.  The upshot is that no one is entitled to assume federal court will continue to serve as a reliable backstop.  If counsel fail to spot an issue while the case is progressing through the state court system, it might never see the light of day.  That reality gives rise to a number of imperatives for state counsel.

First, preserve any potentially meritorious constitutional claim at every phase of the state court proceedings.  What is more, keep in mind that to preserve these issues for habeas, they must not only be raised as constitutional arguments but as federal constitutional arguments.  Imagine, for example, that you are a trial attorney and you are alleging a violation of Idaho’s rule against hearsay.  Give serious thought to whether it might make sense to assert that your client’s rights under the Sixth Amendment’s Confrontation Clause were violated along with his rights under the hearsay rule.  There is, after all, obvious overlap between hearsay principles and Confrontation Clause law.[xiii]

Or take a situation in which the judge is refusing to allow you to put in evidence you feel is pivotal to your case.  You will almost certainly have points to make with reference to state evidentiary rules.  How about simultaneously invoking your client’s due process right to present a defense?[xiv]  The same right is a candidate for other situations as well.  Even as routine a matter as the denial of a continuance could, under the right circumstances, violate the right to present a defense.

Similar approaches are called for at the appellate level.  If you are, say, an appellate attorney who is arguing to the Idaho Supreme Court that the evidence was insufficient to convict your client, the claim can easily be framed so that it encompasses, in addition to state law, the related federal due process right against conviction based on inadequate evidence.  It is presumably an identical argument, as the tests are the same.[xv]

Just remember that best practice is to cite both the constitutional provision and a case on point from the federal courts, to ensure you are adequately exhausting the issue.[xvi]  In an ideal world, you would delve into the federal constitutional claim in some detail.  Assuming you don’t have the time for that degree of thoroughness, at least include the federal citations.  Don’t forget that complete exhaustion means presentation to the Idaho Supreme Court in a petition for review, even if the Court of Appeals has taken up the claim.[xvii]

State Court Claims Are Essential

Ramirez has notable ramifications for attorneys who handle post-conviction matters in state court, as well.  To begin with, it is more essential than ever to diligently pursue any colorable claim of ineffective assistance of counsel.  In the Martinez era, there was considerable leeway for such claims in a federal court in the Ninth Circuit.  No more.  If your client has a potential ineffectiveness claim, it must be raised in state court.  In searching for ineffectiveness claims, keep in mind that post-conviction attorneys are in many ways in the same position as trial counsel: they have an obligation to investigate matters beyond the record to see if their predecessors should have done anything differently.[xviii]

There is a tendency among some post-conviction practitioners to view their work through appellate lenses because a record already exists when they enter the stage.  The tendency is perhaps more prevalent in places, like Idaho, where many attorneys do the occasional post-conviction case without specializing in the area.  But the tendency is mistaken.  A post-conviction attorney has an opportunity to find evidence that escaped the original lawyer’s attention.  Now that traction in federal court will be more difficult to get, a robust post-conviction investigation is key.

Drafting Ineffectiveness Claims

A special word on drafting ineffectiveness claims is in order, too.  Some scenarios obviously present ineffectiveness concerns.  An objectionable statement on the record at trial that draws no objection is an easy call.  But one of the upshots of Ramirez is a renewed need to think imaginatively and expansively about what exactly qualifies as ineffectiveness.  The Fourth Amendment is a good example.  Substantive Fourth Amendment issues are almost always beyond the reach of federal habeas proceedings because the exclusionary rule generally does not apply there.[xix]  Nevertheless, an inmate may still get habeas relief in federal court on a Sixth Amendment claim that trial counsel was ineffective for failing to bring a suppression motion.[xx]  This is yet another reason to cast a wide net in framing issues with reference to trial-counsel ineffectiveness.

Post-conviction attorneys ought not to forget another category of ineffectiveness claims: those pertaining to direct-appeal-counsel’s performance.  Appellate ineffectiveness remains a legitimate basis for a federal habeas court to reach a claim that would otherwise be procedurally barred.  For the avenue to work, the appellate-ineffectiveness claim itself has to be exhausted in state court.[xxi]  As the road to federal habeas review becomes even more challenging, the paths still standing are especially deserving of attention, and appellate-ineffectiveness is one of them.  The mindset for crafting such claims, unlike when they are directed at trial counsel, is that of an appellate attorney.  That is to say, when you are pursuing an appellate-ineffectiveness claim, you are almost always limited to issues presented by the existing trial record.[xxii]

Your task is to review the trial record and determine what challenges could have been articulated on appeal that were not, much as a direct-appeal attorney herself would do.  Thus, taking into account your responsibility of formulating ineffectiveness claims geared toward both trial and appellate counsel, the best way of conceiving your role is that you yourself are wearing both a trial and appellate hat.  You are searching for fruitful facts to investigate, as a trial lawyer would, but also scouring the established record for issues it supports, as an appellate lawyer would.

Challenge Restrictions on Post-conviction Review

Finally, post-conviction counsel have renewed reason to zealously litigate unreasonable procedural limitations being placed on them by the state courts.  Is your post-conviction judge refusing you resources you need to litigate the case, by preventing you from hiring experts or taking other essential steps?  Is she rejecting well-founded motions for continuances?  Is she imposing unfair page limitations?  Is she denying an evidentiary hearing even though one is called for by state law?  Is she imposing unwarranted limitations on the scope of an evidentiary hearing?  Is she declining to order the State to provide you documentary discovery or authorize depositions despite your entitlement to these fact-finding tools?

Your client will be well-served by you making a clear record of any such restraints and your opposition to them.  In federal court, even after Ramirez, there is still good law that unjustified procedural constraints in state post-conviction open the way to more meaningful federal habeas review.[xxiii]

The bottom line is that Ramirez calls upon state-court practitioners to be careful, comprehensive, and creative in litigating claims with an eye to preserving them for potential federal habeas review.  Although it has gotten more difficult to prevail in federal habeas, you owe it to your clients to give them as much of a chance as you can.

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[i] The suggestions made here are designed for non-capital cases.  Death-penalty matters are unique in many respects and fall outside the scope of the article.  The views expressed here are solely the author’s.

[ii] For convenience, I will use the term “habeas” as shorthand to refer to federal judicial review of state-court judgments.

[iii] 501 U.S. 722, 753 (1991).

[iv] Martinez v. Ryan, 566 U.S. 1, 9 (2012).

[v] Id. at 11.

[vi] See, e.g., Johnson v. State, 162 Idaho 213, 228, 395 P.3d 1246, 1261 (2017) (recognizing that “Martinez applies in Idaho”).

[vii] See, e.g., Harrington v. Richter, 562 U.S. 86, 101 (2011) (“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court’s decision.” (internal quotation marks omitted)). 

[viii] See, e.g., Rodney v. Filson, 916 F.3d 1254, 1262 (9th Cir. 2019).

[ix] See Dickens v. Ryan, 740 F.3d 1302, 1319–21 (2014).  

[x] See 142 S. Ct. 1718, 1735 (2022).

[xi] Strickland v. Washington, 466 U.S. 668, 695 (1984).

[xii] There are exceptions to all of the general habeas rules mentioned here, which are too involved to get into in such a short space.  The article s instead written to capture with a broad brush the general principles at play in habeas practice that apply to the lion’s share of cases.

[xiii] See, e.g., Davis v. Washington, 547 U.S. 813, 821 (2006) (“It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.”). 

[xiv] See Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (“The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.”).   

[xv] Compare Jackson v. Virginia, 443 U.S. 307, 318 (1979) (articulating the federal constitutional test as “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”), with State v. Schiermeier, 165 Idaho 447, 451, 447 P.3d 895, 899 (2019) (reiterating the same standard for state-law challenges to the sufficiency of the evidence on appeal).

[xvi] See, e.g., Galvan v. Alaska Dep’t of Corrs., 397 F.3d 1198, 1202–03 (9th Cir. 2005) (finding a claim unexhausted where the petitioner cited only state authorities on appeal).

[xvii] See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

[xviii] See, e.g., Trevino v. Davis, 829 F.3d 328, 347 (5th Cir. 2016) (holding post-conviction counsel to the same standards applicable to trial attorneys).

[xix] Stone v. Powell, 428 U.S. 465, 494 (1976).

[xx] See, e.g., Grumbley v. Burt, 591 F. App’x 488, 499–501 (6th Cir. 2015).

[xxi] See Edwards v. Carpenter, 529 U.S. 446, 453 (2000).

[xxii] See, e.g., Dumas v. Long, No. 5:14-cv-328, 2015 WL 4720583, at *7 n.12 (C.D. Cal. June 5, 2015) (“[T]o the extent petitioner’s ineffective assistance of trial counsel claims rely on evidence not in the trial record . . . , his appellate counsel cannot be faulted for failing to raise the claims as appellate counsel was limited to what was in the trial record.”), adopted by, 2015 WL 4722216 (C.D. Cal. Aug. 6, 2015).

[xxiii] See, e.g., Panetti v. Quarterman, 551 U.S. 930, 954 (2007) (reiterating that federal merits review of a habeas claim is conducted de novo when “the factfinding procedures upon which the [state] court relied were not adequate for reaching reasonably correct results or, at a minimum, resulted in a process that appeared to be seriously inadequate for the ascertainment of the truth” (internal quotation marks omitted)). 

Benjamin M. Onosko

Introduction

This article examines the modern police practice of conducting pretextual stops on the motoring public to initiate criminal investigations without reasonable suspicion or prior judicial approval; and its comparison to the British practice of using general writs of assistance in colonial times.  Perhaps the biggest impetus to this article was the author’s own experience with being profiled by police, and then being seized solely so officers could run their drug dog around my vehicle.

In 2013, I was driving home on Highway 95 when I was pulled over for speeding.  Throughout the course of the stop, the officer questioned and accused me of transporting drugs, and sought consent to search my vehicle or bring a drug dog to scene.  When I declined his invitations – realizing no K-9 officer was in the area – the officer was forced to let me go.  But that was not the end of his investigation.

As soon as I set out on my way again, the officer radioed to another officer several miles up the road.  The officer told him to be ready for me, and this time, to have a K-9 respond.  Sure enough, several minutes after my speeding stop, I was pulled over by a K-9 officer; this time for allegedly driving too slow.  After running his dog on my vehicle, I was eventually allowed to be on my way.  And while my ticket for driving too slow would eventually be dropped by the prosecutor without explanation, the indignity was done.  I, like many Idahoans before me, had my personal liberty and autonomy stepped on for no good reason.

The Founding and the Fourth Amendment

The Founders who ratified the Fourth Amendment most certainly had recent controversies on their minds at the time of its passage.  While delving into the history of each controversy of the time is not possible, the debate over Writs of Assistance in Paxton’s case is particularly significant in understanding the context in the minds of these Founders.  For example, the Supreme Court of the United States would later describe the debate in the case as “perhaps the most prominent event which inaugurated the resistance of the colonies.”[1]

Writs of Assistance were one type of general warrant issued by courts to customs officials.[ii]  General warrants had a long history in England and were often used as “little more than a ‘blank check’ to harass people who didn’t fit in.”[iii]  As used in the Colonies, these writs allowed customs officials to seize and search any ships or vessels for contraband goods.[iv]  These writs did not require any showing of particularized (or even unparticularized) suspicion, were good against any citizen, could be executed by any petty officer, and were valid for the life of the King under whose reign they were issued.[v]  The writs also allowed customs officials to share in any profits from the seized contraband.[vi]  The Crown found these writs to be a useful tool in enforcing its customs laws[vii] and customs officials themselves benefited financially.[viii]

King George II died in 1760, signaling the end of any writs issued during his reign.[ix]  When customs officials in Massachusetts sought a court order allowing for the renewal of these general writs, James Otis agreed to argue against their issuance on behalf of the merchants of Boston.[x]  Otis was so opposed to these writs that he resigned his position as deputy advocate general so that he could take the side of the Boston merchants and argue against the writs renewal pro bono.[xi]  In 1761, Otis delivered his famous argument in Paxton’s case.[xii]

A young John Adams was in the courtroom and would later recall that every person in the courtroom who heard Otis’ address went away “ready to take arms against Writs of Assistance.  Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain.”[xiii]

Otis decried the writs as “the worst instrument of arbitrary power” found in English law.[xiv]  While accepting the legality of “special writs” (what we would recognize today as a warrant complying with the Fourth Amendment), he argued against the legality of these general, suspicion-less writs which “place[d] the liberty of every man in the hands of every petty officer.”[xv]

Otis raised several specific objections to the writs.  First, that they were general, requiring no showing of suspicion prior to their execution – “bare suspicion without oath is sufficient.”[xvi]  In fact, Otis pointed out that the writs could be executed for “revenge, ill humor, or wantonness.”[xvii]  Otis decried the writ’s “universal” and “perpetual” nature, granting the power to seize and search to every official and allowing them to be “petty tyrants.”[xviii]  The writs were of unlimited geographical origin, were good for the life of the King, and no return on the writ was required.[xix]

To illustrate these problems, Otis cited the example of the case of Mr. Ware.  Mr. Ware was a customs official who was unhappy that a magistrate had hailed him into court to inquire about his violations of the law.[xx]  Upon conclusion of the inquiry, Mr. Ware told the magistrate, “I will show you a little of my power” and proceeded to execute a retaliatory writ upon the magistrate’s property.[xxi]  This case highlighted the colonists’ fears that these writs gave officials unbridled power to conduct discretionary searches and seizures.

Otis was also disturbed that custom officials were allowed to share in the gains from seizures of the contraband, asking, “what reason can there be, that a free people should be exposed to all the insult and abuse. . .which may arise from the execution of a writ of assistance, only to put fortunes into private pockets.”[xxii]  Otis asked the colonists, “Can a community be safe with an uncontroul’d power lodg’d in the hands of such officers, some of whom have given abundant proof of the danger there is in trusting them with any?”[xxiii]

Otis’ argument was not limited to the specifics of Mr. Paxton’s case; his point was much loftier.  These writs “destroyed all our security of property, liberty, and life.”[xxiv]  Otis’ solution to this problem will no doubt be familiar to anyone who has read the Fourth Amendment: “that an officer should show probable ground; should take his oath of it; should do this before a magistrate; and that such magistrate, if he think proper, should issue a special warrant to a constable to search the places.”[xxv]

Otis lost the case and the general writs were renewed by the court.[xxvi]  But despite losing the battle, Otis ultimately won the war when America gained its independence and the Fourth Amendment was adopted, all but extinguishing the general writ of assistance. With such a strong historical basis for our objections to general warrants and writs, a reader might be lulled into a sense of security that no modern court would permit such a power to ever again be given to any officer.

However, the very evils the Fourth Amendment was designed to guard against has not disappeared, it has only changed form.  Now, modern police officers, may seize and search anyone they suspect of any crime so long as they can find one violation of the traffic code.

Pretextual Traffic Stops as Modern Writs

Pretextual traffic stops have many similarities with the general writs of assistance.  While pretextual stops come in many flavors, when I use the term I will be referring to traffic stops initiated by officers for the purpose of investigating the vehicle’s occupants for evidence of some criminal offense, aside from the traffic code violation.[xxvii]  In a pretextual stop, the traffic code violation is not the reason for the stop, it is merely the justification for the seizure of the vehicle.

The true reason for the stop is often the officer’s hunch that a violation of some other law may be uncovered during the seizure.[xxviii]  As any defense attorney could tell you, pretextual stops are most commonly associated with traffic stops made for the purpose of discovering contraband; precisely what impermissible writs of assistance were designed to find. This practice usually plays out in the following way, using an example from one of my cases.

The Probable Cause Affidavit described the stop as follows: “I observed a white Chevrolet with a windshield crack which clearly obscured the driver’s view and made it unsafe to operate the vehicle.  Based on the condition of the windshield I turned around and caught up to the vehicle to initiate a traffic stop for the violation.”  This description would not raise any real concerns, but here is additional detail of what happened in the case.

Two police officers were driving down the road and saw a truck driven by someone they deemed suspicious looking.  The officers made a U-turn and began following the truck.  The following conversation between the officers was then surreptitiously captured on video:

Officer 1:  “Dude with no plate on this truck up here.  And has an interesting looking dude.”
The officers then caught up to the truck:
Officer 1:  “Aw, maybe he has a plate, yeah, Montana.”
Then, after a pregnant pause:
Officer 2:  “Got a crack in the windshield.  I would say it’s obscuring his vision if you want to go that route.”
Officer 1:  “Yeah, why not.  I just got to figure out where I want to stop him.”

Officer 1 then radioed to another officer with a drug detection dog and told that officer where to meet them for the stop.

In that case, as in most pretextual stop cases, the traffic code violation is not what caused the citizen to be stopped, it was his mere “interesting” (read “suspicious”) look.

In this modern version of a writ of assistance, an officer needs only two things before a person is subjected to a seizure and search.  First, a general suspicion of any type of criminal conduct, however strong or weak.  Second, a violation of the traffic code.  Neither of these requirements place any serious restraint on an officer’s unfettered power to seize citizens; just as the requirement that a customs official first obtain a writ of assistance placed no serious restraint on officials.

To begin, the first requirement – a suspicion of some crime – sets no burden at all.  Under current precedent, an officer need not justify or support his suspicion. In fact, this underlying suspicion is not subject to judicial review, having been declared irrelevant by the Supreme Court.[xxix]

While modern supporters of pretextual stops argue that the second requirement – a traffic violation – is what makes this practice “reasonable” under the Fourth Amendment, that argument lacks substance.[xxx]  The requirement that an officer observe a traffic violation prior to conducting a pretext stop is barely a requirement at all given the breadth and scope of traffic regulation laws.

For example, in Idaho there are over 163 statutes regulating driving, equipment, and registration for motor vehicles.  On top of this, there are at least 179 additional ways to violate different subparts of these statutes.  Thus, at any given time you are driving a motor vehicle, there will be around 342 different traffic violations an officer could point to in justifying a stop. ^[xxxi]   And this does not even include city ordinances which give additional justifications for traffic stops.

While supporters of pretextual stops might argue “just don’t break the law while you’re driving,” this is much easier said than done.  On top of these 342 plus traffic violations that allow officers to initiate stops, some of these statutes give officers almost complete discretion to decide what conduct violates the law.  For example, Idaho prohibits drivers from driving in an “inattentive, careless, or imprudent” manner, with the decision of whether conduct is “imprudent” left up to the officer to decide.[xxxii]  To make matters all the more difficult for drivers, courts have been willing to defer to an officer’s subjective belief that a violation may have occurred, without requiring the officer to possess objective facts to support that belief.[xxxiii]

The sheer volume of regulations also makes it essentially impossible for trained attorneys to know what conduct is prohibited, much less laypeople.  For example, did you know that it is illegal in Idaho to shift gears while crossing a railroad track?[xxxiv]  While researching for this article, the author learned that his factory stock Toyota 4Runner is technically in violation of Idaho law because my running-board has two small lamps on it rather than just one.[xxxv]

Upon learning this, I had considered simply disconnecting one of those stock lamps; however, doing so would have automatically put me in violation of a separate traffic code provision.[xxxvi]  Our own Supreme Court and one Deputy Attorney General even poked fun at themselves for not knowing what the traffic code prohibits.[xxxvii]

This demonstrates that it is impossible for any driver to travel any appreciable distance without violating at least one traffic law.[xxxviii]  This has caused some scholars and courts to note, “virtually the entire driving population is in violation of some regulation as soon as they get in their cars, or shortly thereafter.”[xxxix]  When traffic laws have become so pervasive that every one of us violates them every day and so voluminous that even our Supreme Court makes jokes about trying to keep track of them all, surely James Otis’ fear that “the liberty of every man” has been placed “in the hands of every petty officer” has again become a reality.[xl]

Given all of this, it becomes plain that this second requirement for pretextual stops is no real requirement at all.  When properly understood this way, the similarities between pretextual traffic stops and the dreaded general writs come into focus.  Both were or are conducted on persons and vessels in transit, with the usual object of the seizure being the discovery of contraband.  Both involved unlimited duration[xli] and geographic scope.  Neither the writs nor pretextual stops require officers to justify or support their suspicion of criminal activity.  Neither required any specific prior judicial approval.  Both gave officials complete discretion to determine the target and object of the seizure and search.  And just as the writs gave officials a share in the bounty of any contraband found, pretextual stops allow police departments to share in the spoils of any asset forfeiture.

Courts Asleep at the Wheel

The practice of pretextual stops took off in the mid-eighties with the creation of Operation Pipeline by the DEA.  According to the DEA, the program was started after noticing that police officers in several states who were using pretextual stops saw “[t]heir drug and money seizures gr[o]w immediately.”^[xlii]

The program is used to train officers across the nation how to conduct pretextual stops and how to “lengthen a routine traffic stop and leverage it into a search…by extorting consent or manufacturing probable cause.”^[xliii]  The program has been quite lucrative for local law enforcement, who are given an 80-20 split of all seized property.^[xliv]

However, the success of the program necessarily depends upon the violation of a huge number of citizens’ Fourth Amendment rights.  As one California patrol officer put it, “It’s sheer numbers.  You kiss a lot of frogs before you find a prince.”^[xlv]  Of course in this context, the “prince” is a criminal, the “frogs” are every single law-abiding citizen of this State, and “kissing” refers to making a traffic stop to interrogate and search a citizen.

Given our Founders’ distain for the use of general writs, one might assume that any practice by officers which even begins to tread in the same realm as these writs would receive a swift and premature death at the hands of the judiciary.^[xlvi]  Yet that has not happened to these modern-day equivalents.  Pretextual stops have not only not been prohibited by most courts, the Supreme Court has actually embraced the practice with open arms; although often with closed eyes.^[xlvii]

The Court accomplished this feat by simply declaring that an officer’s subjective beliefs are irrelevant when determining the Fourth Amendment validity of a traffic stop.  Not only does this statement contradict prior case law in numerous areas of the Fourth Amendment,[xlviii] the Court would go on to directly contradict itself 18 years later when its goal was to uphold a traffic stop based upon an officer’s subjective beliefs.[xlix]

I imagine Mr. Otis would have something to say in response to the Court’s claim that an officer’s subjective intent is irrelevant to this issue, given that he specifically decried seizures that were “arbitrary,” carried out for “revenge,” “ill humor,” and “wantonness.”[l]  Sadly, it appears the Supreme Court today would give Mr. Ware’s search the thumbs up since his subjective motivation for the search (revenge against the magistrate) is apparently of no concern to the Courts’ interpretation of the Fourth Amendment.

The current arguments in support of pretextual stops ring similar to the arguments made by the Crown in support of its writs of assistance.  British attorney general William DeGrey argued that if not for the writs, colonists could evade their obligations to the Crown without detection because obtaining a specific warrant against citizens would take too much time.[li]

In Paxton’s case, the government argued that allowing these writs was “no greater infringement of our liberty than the method of collecting taxes in this Providence.”[lii]  While these arguments were certainly repulsive to the colonists, the Supreme Court seems to have now fully embraced them.[liii]  And while it is true now, just as it was in 1761, that these practices generate huge slush funds for officials,[liv] that fact should not justify a program that so clearly subjects all of us to unwarranted invasions of our liberty and privacy.

Hope for the Future

Despite the sorry state of the federal judiciary’s view on pretextual stops, hope remains for the citizens of Idaho.  Several states have held that pretextual stops violate their own State Constitutional protections against unreasonable searches and seizures.[lv]

While Idaho Courts have recognized and followed Whren’s command in the Fourth Amendment context, they have not yet squarely addressed the issue of whether our own Constitutional prohibition on unreasonable searches and seizures[lvi] protects us from pretextual traffic stops.

Whether our Courts heed James Otis’ warnings remains to be seen, but for the time being, some hope remains that all Idahoans may be protected against this modern writ of assistance.  Until that time, in the words of Mr. Otis, “I take this opportunity to declare, that whether under a fee or not (for in such a cause as this I despise a fee) I will to my dying day oppose with all the powers and faculties God has given me, all such instruments of slavery on the one hand, and villainy on the other, as this writ of assistance is.”[lvii]

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[1] Boyd v. U.S., 116 U.S. 616, 625 (1886).

[ii] Scott Lewis, An Historical Review of the Fourth Amendment, Wis. B. Bull., August 1987, at 15, 15.

[iii] Id.

[iv] Id. 

[v] The Honorable M. Blane Michael, Reading the Fourth Amendment: Guidance from the Mischief That Gave It Birth, 85 N.Y.U. L. Rev. 905, 907-908 (2010).

[vi] Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. Mem. L. Rev. 483, 501 (1995)

[vii] Michael, supra note 5, at 908.

[viii] Clancy, supra note 6, at 501.

[ix] Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1248 (2016).

[x] Id. at 1249.

[xi] Id.

[xii] Otis, James. Collected Political Writings of James Otis. Liberty Fund, 2015. https://oll.libertyfund.org/title/collected-political-writings.

[xiii] Id.

[xiv] Id.

[xv] Id. 

[xvi] Id.

[xvii] Id.

[xviii] Id.

[xix] Michael, supra note 5, at 907-908.

[xx] Otis, supra note 12.

[xxi] Id.

[xxii] Id. 

[xxiii] Id.

[xxiv] Id.

[xxv] Id.

[xxvi] Id.

[xxvii] This is not to suggest that violations of the traffic code are always criminal offenses.  Most are only civil offenses.

[xxviii] Although there are also numerous examples of these stops being used simply in a racist fashion against minorities.  See Ricardo Bascuas, Fourth Amendment Lessons from the Highway and the Subway: A Principled Approach to Suspicionless Searches, 38 Rutgers L.J. 719, 761-762 (2007) (Black people being twice as likely as white people to be stopped for traffic offenses, while Hispanic individuals are three times as likely).

[xxix] Whren v. U.S., 517 U.S. 806 (1996).

[xxx] See id. at 811-813 (holding that as long as an officer has observed a traffic violation, no ulterior motive—not even a racist ulterior motive—can make the stop unreasonable under the Fourth Amendment).

[xxxi] See Idaho Code Title 49.

[xxxii] Idaho Code § 49-1401(3).

[xxxiii] See e.g. State v. Kinser, 141 Idaho 557, 112 P.3d 845 (Ct. App. 2005) (upholding a stop for a cracked windshield, despite no statute prohibiting cracks in windshields, based upon an officer’s belief that a windshield crack could potentially inhibit a driver’s vision and potentially cause an unsafe driving condition); State v. Meyer, 158 Idaho 953, 354 P.3d 515 (Ct. App. 2015) (holding that an officer need not show a muffler’s noise actually exceeded the statutory 92 decibel maximum and finding a stop to be reasonable when the officer testified that in his opinion the muffler sounded “louder-than-normal”).

[xxxiv] Idaho Code § 49-649.

[xxxv] See Idaho Code § 49-920.

[xxxvi] Idaho Code § 49-902 (prohibiting equipment not in proper working order); See also State v. Evans, 134 Idaho 560, 6 P.3d 416 (Ct. App. 2000) (allowing for the stop of a vehicle that had one non-working headlight, even though the vehicle was being driven during the day when headlights were not required to be on).

[xxxvii] State v. Randall, Supreme Court Oral Argument, June 17, 2021, available at: https://isc.idaho.gov/appeals-court/archive.

[xxxviii] Although as has already been pointed out, a driver need not even violate a law, an officer’s unsubstantiated claim that a violation occurred is all that is truly required.

[xxxix] Peter Shakow, Let He Who Never Has Turned Without Signaling Cast the First Stone: An Analysis of Whren v. United States, 24 Am. J. Crim. L. 627, 633 (1997).

[xl] Otis, supra note 12.

[xli] Duration, as used here, is in reference to when the seizure may be made, not the length of the seizure itself which still finds some protection under the Fourth Amendment.

[xlii] Operations Pipeline and Convoy, available at: https://web.archive.org/web/20040301202815/http://www.usdoj.gov/dea/programs/pipecon.htm

[xliii] Bascuas, supra note 28, at 761.                        

[xliv] Id. at 762.

[xlv] Id. 

[xlvi] Boyd, 116 U.S. at 635 (“It is the duty of courts to be watchful for the constitutional rights of the citizen, and against stealthy encroachments thereon.  Their motto should be obsta principiis.”).

[xlvii] Bascuas, supra note 28, at 764-765 (observing that no member of the Whren or Robinette Court appeared even aware of the existence of Operation Pipeline).

[xlviii] See e.g. Brower v. County of Inyo, 489 U.S. 593 (1989); Florida v. Wells, 495 U.S. 1 (1990); Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990); Minnesota v. Dickerson, 508 U.S. 366 (1993).

[xlix] Compare Whren, 517 U.S. at 813, with Heien v. North Carolina, 574 U.S. 54, 60 (2014)(holding that an officer’s subjective understanding of what the law is plays a critical role in a Fourth Amendment analysis of whether a traffic stop is reasonable).

[l] Otis, supra note 12.

[li] Neal Nusholtz, The Prompt and Certain Collection of Delinquent Taxes, 95-Sep Mich. B.J. 20, 22 (2016).

[lii] Otis, supra note 12.

[liii] See Carroll v. U.S., 267 U.S. 132, 153 (1925) (accepting argument that not allowing police to act without a warrant would allow criminals to avoid their obligations to the government); and Whren, 517 U.S. at 813 (not finding a pretext stop to be any greater infringement on the Fourth Amendment than a legitimate traffic stop).

[liv] Bascuas, supra note 28 at 762 (noting that police in a town of 2,600 residents seized over $2 million in cash and cars in a two-year period).

[lv] See e.g. Minnesota v. Varnado, 582 N.W.2d 886 (Minn. 1998); New Mexico v. Ochoa, 206 P.3d 143 (N. M. Ct. App. 2008); New York v. Dickson, 690 N.Y.S.2d 390 (N.Y. App. Div. 1998); Washington v. Ladson, 979 P.2d 833 (Wa. 1999). See also State v. Arreola-Botello, 451 P.3d 939 (Or. 2019) (solving some of the problems related to pretext stops by recognizing both a temporal and a scope limitation on officers’ actions during traffic stops).

[lvi] Idaho Const. art. I, § 17.

[lvii] Otis, supra note 12.