Does the Tenth Amendment Trump the Third Amendment?

“A Bill of Rights is what the people are entitled to against every government, and what no just government should refuse, or rest on inference.” — Thomas Jefferson

In April I wrote an essay about the Bill of Rights. In the essay I wrote:

“The Third Amendment: Quartering Troops:

“No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”

This is no doubt the least talked about or challenged amendment forbidding Congress to station soldiers in private houses without the householders’ permission in time of peace, or without proper authorization in time of war. The amendment was bound up with memories of British soldiers who were quartered in American houses during the War of Independence. It is an indication of a desire, in 1789, to protect civilians from military bullying. This is the least-invoked provision of the Bill of Rights, and the Supreme Court has never had occasion to interpret or apply it.”

Well it looks like I was wrong. I should have added the caveat “not yet.”

It’s been called the “forgotten amendment,” “an insignificant legal fossil,” and an “oft-forgotten relic” of the American Revolution.

But the Third Amendment made a rare appearance in federal court, figuring in a lawsuit filed this month by a Nevada man against the city of Henderson and its police chief.

The Third Amendment reads, in full:

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

How rare are Third Amendment cases? It’s been 30 years since a federal court handed down a significant Third Amendment decision.

Henderson resident Anthony Mitchell claims that Henderson police officers violated his Third Amendment rights when they “conspired among themselves to force him out of his residence and to occupy his home for their own use.”

Responding to a domestic violence call at a neighbor’s residence in July 2011, officers told Mr. Mitchell that they needed to come into his home to gain a “tactical advantage,” according to the suit, which the Volokh Conspiracy wrote about here.

When Mr. Mitchell refused, police officers came to his home, banged on his door, and then smashed it open with a metal ram, he alleges.

He claims they then aimed their weapons, commanding him to lie down on the floor and crawl toward them. When he didn’t move, they allegedly fired pepper-spray balls at him, striking him three times at close range and causing him to “experience uncontrollable coughing and difficulty breathing,” the suit says.

Police then arrested Mr. Mitchell for “obstructing a police officer” before “swarming” into his home. He also claims they fired pepper-balls at his cowering dog named Sam.

The city attorney of Henderson wasn’t immediately available for comment. A spokesman for the Henderson Police Department declined comment.

It’s been a long time since a federal court has interpreted the meaning of the Third Amendment. In 1983, the Second Circuit ruled that the State of New York violated the Third Amendment rights of striking correction officers who were booted from staff housing by National Guard troops.

More recently, in 2001, the U.S. Court of Appeals for the Tenth Circuit considered whether the military could fly planes above a private property without the owner’s permission. “Judicial interpretation of the Third Amendment is nearly nonexistent,” the court conceded, but ultimately sided with the government:

“We simply do not believe the Framers intended the Third Amendment to be used to prevent the military from regulated, lawful use of airspace above private property without the property owners’ consent.”

Scholars, though, have tried to make the case for the amendment’s relevance. For example, Nicholas Quinn Rosenkranz, who teaches constitutional law at Georgetown University Law Center, thinks the Third Amendment is the “Rosetta Stone” of the Bill of Rights, offering insights into how the Framers designed the Constitution to constrain governmental power.

“The Third Amendment can reveal the structure of the Bill of Rights, and its objects,” the professor wrote.

It’s been 226 years since the Third Amendment was written to keep the federal government from quartering troops in American homes without consent and compensation, but a lawsuit just filed in Nevada suggests it’s as relevant as ever.

The framers of the Constitution ratified the Third Amendment to ensure citizens would never again have to accommodate soldiers, but a few centuries later it’s become more-or-less an antiquated law that’s rarely referenced in federal court. That changed recently when a family from Henderson, Nevada accused the local police department of constitutional violations after officers of the law allegedly took residence in two neighborhood homes.

According to a legal filing first obtained by Courthouse News Service, a handful of Henderson Police Department officers and the city itself are being sued for an array of charges — including Third Amendment and Fourth Amendment violations — over an incident that mirrors the making of the American Revolution.

Attorneys for the plaintiffs say police officers demanded they be allowed to occupy two homes owned by their clients on the city’s Eveningside Avenue in 2011 in order to conduct an investigation involving a neighbor’s residence. When the owners refused to comply with the request, they were reportedly arrested for obstruction and brought to jail.

As mentioned above police were investigating an incident at 363 Eveningside Avenue that July when Officer Christopher Worley called up the occupant of a neighboring property, Anthony Mitchell, and said he’d need to use his house in order to gain a 'tactical advantage' over the neighbor’s residence. Mitchell reportedly made it clear that he did not want to get involved in the probe and told Worley he would not be able to offer assistance. According to the lawsuit, Officer David Cawthorn, Sgt. Michael Waller and Worley all then "conspired among themselves to force Anthony Mitchell out of his residence and to occupy his home for their own use."

“It was determined to move to 367 Eveningside and attempt to contact Mitchell. If Mitchell answered the door he would be asked to leave. If he refused to leave he would be arrested for Obstructing a Police Officer. If Mitchell refused to answer the door, force entry would be made and Mitchell would be arrested,” the report determined.

Moments later, the officers "arrayed themselves in front of plaintiff Anthony Mitchell's house and prepared to execute their plan," after which they “loudly commanded” they be let inside. Seconds later, Mitchell’s door was knocked down with a metal battering ram and the police entered his home.

"As plaintiff Anthony Mitchell stood in shock, the officers aimed their weapons at Anthony Mitchell and shouted obscenities at him and ordered him to lie down on the floor,” the suit alleges.

As the police moved into the home, Mitchell was reportedly called an “asshole” by the cops, ordered to crawl on the floor and then shot several times with non-lethal ‘pepper ball rounds’ from close range. He was then arrested for obstructing an officer while the cops combed through his house without permission, but not before they also opened fire at the plaintiff’s dog, prompting it to howl “in fear and pain.”

At the same time, officers approached Anthony’s parents down the block at 362 Eveningside and asked father Michael Mitchell if he’d accompany them back to a local ‘command center’ to assist with negotiating the surrender of the neighbor suspected of domestic violence. When he got there, though, he became concerned that the cops had tricked him into leaving so they could try to gain access to yet another home. Michael Mitchell then tried to head back home, but when he left the command center he was arrested, handcuffed and placed in the back of a cop car.

Attorney for the family say there was no reasonable grounds to detain Michael Mitchell, nor probable cause to suspect him of committing any crime. That didn’t keep officers from holding both him and his son Anthony for nine hours, however, before they were ultimately released after posting bond.

All criminal counts against the Mitchells were later dismissed with prejudiced, but the family has now lobbed charges of their own. Their attorney is asking for a trial by jury to hear the case and ideally award his clients punitive damages for violations of the Third, Fourth and Fourteenth Amendments, assault and battery, conspiracy, defamation, abuse of process, malicious prosecution, negligence and emotional distress. [Read more here]

Now we have the conundrum of which Amendment applies here. Discounting the violation of the Fourth Amendment violation we have to ask two questions. Firstly; do police officers fall under the definition of “soldiers? Secondly; does the State of Nevada have the right to occupy a house without the consent of the homeowner?

The case raises a number of fascinating issues that will likely stir the passion of liberty lovers, particularly the question of whether police officers count as “soldiers.” One can certainly make that case in this day and age of military style SWAT teams.

Reading accounts of events that day, it seems pretty clear the Henderson police violated Mitchell’s rights. Police officers should not have the power to commandeer private property whenever it suits them, and they certainly shouldn’t have the authority to terrorize a man at gunpoint in his own home because he doesn’t want to get involved in their police actions. These goons should face punishment. So, many will track the case with anticipation, holding their breaths while federal employees debate the definition of their rights.

Most won’t even realize the risk they place themselves in.

This case represents yet another attempt to “incorporate” a provision of the Bill of Rights and enforce it on the states. The law blog Volokh Conspiracy makes this very point:

“A second possible impediment to winning a Third Amendment claim in this case is that the Amendment is one of the few parts of the Bill of Rights that the Supreme Court still has not against state governments. For incorporation purposes, claims against local governments (like this one) are treated the same way as claims against states. On the other hand, the Supreme Court has never ruled that the Third Amendment does not apply to the states. If, as the Court has previously decided, virtually all the rest of the Bill of Rights applies to state governments, there is no good reason to exclude the Third Amendment. If the Third Amendment part of the case is not dismissed on other grounds, the federal district court may have to address the issue of incorporation.”

Conservatives and liberals alike love turning the federal courts into a liberty enforcement squad because it allows one stop shopping as they jockey to define our rights for us. Incorporation is a very bad and very dangerous idea. Much mischief has been carried out under this doctrine.

By turning to federal courts, they ultimately empower five federal employees to define their rights. And when the federal courts ultimately decide the issue, that decision doesn’t just bind one county or state, it extends to all 330 million-plus Americans.

If the judges happen to issue the “right” opinion, things move along nicely. But how often do federal judges actually rule in a way that preserves individual liberty? Almost never!

Consider this case. If the federal courts ultimately hold that police officers do qualify as soldiers and the officers’ actions fit the definition of “quartering,” we have a “win” for liberty (in the short run). But if they don’t, the issue will be considered final. Not just for Mitchell. Not just for citizens of Nevada. But for all 330 million-plus Americans!

This issue should certainly have its day in court, but in the Nevada state court system not the Ninth Circuit Court, where no doubt it will eventually land. You see, the Nevada Constitution features a very similar provision in its Declaration of Rights.

“Sec: 12. Quartering soldier in private house. No soldier shall, in time of Peace be quartered in any house without the consent of the owner, nor in time of War, except in the manner to be prescribed by law.”

Since local and state police fall under the authority of the state. The state constitution governs their actions. It delegates authority to the state government and its agents, and its Declaration of Rights restricts their actions to protect the rights of the people of the state. The U.S. Constitution delegates authority to the federal government. The Bill of Rights was only intended to operate on the government created by the Constitution — not the state government, as the Preamble makes clear.

“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

Of course, Mitchell could easily lose his case in state court. But at least the ruling would only bind people in Nevada, leaving the door open for other states to make their own determinations. A loss in federal court means a narrowing of liberty for all Americans. True, civil libertarians won’t get the sweeping nation-wide win they might like with a victory in state court, but it would set a precedent and make the battle easier as it moves to other states.

Incorporation shreds the fabric of the American system. It is a double edged sword. It distorts the proper delegation of powers, and it places the federal government in a position of supremacy never intended by the founders. They feared centralized systems and monopolized decision making. They would shudder at the notion of five federal judges defining the rights and liberties of every man, woman and child in America with absolute and final authority.

Those who fight for liberty risk losing the war as they clamor for a chance to win the occasional battle. We have to resist the temptation to run and grovel at the feet of federal employees in Washington D.C. every time some state or local functionary tramples our rights.

Sure, we might win some protection for gun rights at the federal level. We might win some restrictions on police powers. We might win some privacy rights. But more often than not, we walk out from between those grand marble pillars at the Supreme Court building with diminished rights “incorporated” across the Fruited Plain. And in the process, we’ve further centralized power in one place.

Power monopolies never work out well for the people.

The only hope for liberty lies in decentralizing our system. That will never happen as long as we insist on making the feds our liberty enforcement squad. We merely empower them, to our detriment.

As I stated above this case will be a battle between the Third, Tenth, and Fourteenth Amendments to the Constitution. Over the years the Fourteenth Amendment has won out in many cases. It is the “Due Process and Equal Protection Clause that has created all of the mischief:

“SECTION 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

On the other hand “The Privileges and Immunities Clause” of Article IV, Section 2 of the Constitution states that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." This clause protects fundamental rights of individual citizens and restrains state efforts to discriminate against out-of-state citizens. However, the Privileges and Immunities Clause extends not to all commercial activity, but only to fundamental rights. I don't believe his would apply in this case. It is the Fourteenth that has and is presenting the problem with the Tenth.

So, do we simply sit back and allow state governments to trample our right to keep and bear arms? Of course not. We wield the Second Amendment to keep the federal government at bay, and we work through our state Constitutions to protect our rights within the borders of our state. Every state Constitution in the U.S. has some provision protecting the right to bear arms — except New Jersey. (You folks in the Garden State should get busy remedying that.) Many utilize the exact same language as the Second Amendment. Other feature restrictive stipulations delegating some regulatory power to the state legislature. But that simply means the people of the states must work diligently to ensure their representatives respect and protect their rights, and abide by their state constitutions.

Ultimately, we should not leave the protection of our rights to any judge or government, particularly some large, centralized power structure. We shoulder the responsibility for protecting our rights. We simply cannot depend on a judge’s ruling — especially when that ruling bastardizes the entire system. We must focus our effort through the proper authority based on the constitutional delegation of power. A pragmatic appeal to centralized authority to “protect us” might yield a victory. But remember, Japan won Pearl Harbor, but it lost the war.

As Thomas Jefferson stated:

“Who will govern the governors? There is only one force in the nation that can be depended upon to keep the government pure and the governors honest, and that is the people themselves. They alone, if well informed, are capable of preventing the corruption of power, and of restoring the nation to its rightful course if it should go astray. They alone are the safest depository of the ultimate powers of government.”

The Train to Nowhere, Part Deux

"Government is instituted for the common good; for the protection, safety, prosperity, and happiness of the people; and not for profit, honor, or private interest of any one man, family, or class of men." — John Adams

May 10^th was the 143^rd anniversary of the completion of the Transcontinental Railroad. On this day in 1869, the presidents of the Union Pacific and Central Pacific railroads meet in Promontory, Utah, and drive a ceremonial last spike into a rail line that connects their railroads. This made transcontinental railroad travel possible for the first time in U.S. history. No longer would western-bound travelers need to take the long and dangerous journey by wagon train, and the West would surely lose some of its wild charm with the new connection to the civilized East. Nor would goods have to travel by ship on the odious journey around the Cape Horn and the Straits of Magellan to reach San Francisco.

Since at least 1832, both Eastern and frontier statesmen realized a need to connect the two coasts. It was not until 1853, though, that Congress appropriated funds to survey several routes for the transcontinental railroad. The actual building of the railroad would have to wait even longer, as North-South tensions prevented Congress from reaching an agreement on where the line would begin.

One year into the Civil War, a Republican-controlled Congress passed the Pacific Railroad Act (1862), guaranteeing public land grants and loans to the two railroads it chose to build the transcontinental line, the Union Pacific and the Central Pacific. With these in hand, the railroads began work in 1866 from Omaha and Sacramento, forging a northern route across the country. In their eagerness for land, the two lines built right past each other, and the final meeting place had to be renegotiated.

The original Act's long title was “An Act to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific Ocean, and to secure to the government the use of the same for postal, military, and other purposes”. It was based largely on a proposed bill originally reported six years earlier on August 16, 1856, to the 34th Congress by the Select Committee on the Pacific Railroad and Telegraph. Signed into law by the President Abraham Lincoln on July 1, 1862, the 1862 Act authorized extensive land grants in the Western United States and the issuance of 30-year government bonds (at 6 percent) to the Union Pacific Railroad and Central Pacific Railroad (later the Southern Pacific Railroad) companies in order to construct a transcontinental railroad. Section 2 of the Act granted each Company contiguous rights of way for their rail lines as well as all public lands within 200 feet on either side of the track.

Section 3 granted an additional 10 square miles of public land for every mile of grade except where railroads ran through cities or crossed rivers. The method of apportioning these additional land grants was specified in the Act as being in the form of "five alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten miles on each side" which thus provided the companies with a total of 6,400 acres for each mile of their railroad. (The interspersed non-granted area remained as public lands under the custody and control of the U.S. General Land Office.) The U.S. Government Pacific Railroad Bonds were authorized by Section 5 to be issued to the companies at the rate of $16,000 per mile of tracked grade completed west of the designated base of the Sierra Nevadas and east of the designated base of the Rocky Mountains. Section 11 of the Act provided that the issuance of bonds "shall be treble the number per mile" (to $48,000) for tracked grade completed over and within the two mountain ranges (but limited to a total of 300 miles at this rate), and doubled (to $32,000) per mile of completed grade laid between the two mountain ranges.

The Act also specified that the gauge of the track (the distance between the inside flange of opposing rails) be standardized at 4 feet, 8.5 inches. This is the standard gauge used for all railroads and urban rail today. Until the approval of the Transcontinental Railroad there were tracks of varying gauges throughout the United States. This caused a lack of standards in rolling stock and the inability to connect various lines with one another.

The U.S. Government Bonds constituted a lien upon the railroads and all their fixtures, and all were repaid in full (with interest) by the companies as and when they became due. Section 10 of the 1864 amending Act Statutes at Large, additionally authorized the two companies to issue their own "First Mortgage Bonds" in total amounts up to (but not exceeding) that of the bonds issued by the United States, and that such company issued securities would have priority over the original Government Bonds.

From 1850-1871, the railroads received more than 175 million acres of public land — an area more than one tenth of the whole United States and larger in area than Texas.

Railroad expansion provided new avenues of migration into the American interior. The railroads sold portions of their land to arriving settlers at a handsome profit. Lands closest to the tracks drew the highest prices, because farmers and ranchers wanted to locate near railway stations.

Harsh winters, staggering summer heat, Indian raids and the lawless, rough-and-tumble conditions of newly settled western towns made conditions for the Union Pacific laborers — mainly Civil War veterans of Irish descent--miserable. The overwhelmingly immigrant Chinese work force of the Central Pacific also had its fair share of problems, including brutal 12-hour work days laying tracks over the Sierra Nevada Mountains. On more than one occasion, whole crews would be lost to avalanches, or mishaps with explosives would leave several dead.

For all the adversity they suffered, the Union Pacific and Central Pacific workers were able to finish the railroad — laying nearly 2,000 miles of track — by 1869, ahead of schedule and under budget. Journeys that had taken months by wagon train or weeks by boat now took only days. Their work had an immediate impact: The years following the construction of the railway were years of rapid growth and expansion for the United States, due in large part to the speed and ease of travel that the railroad provided.

The completion of the Transcontinental Railroad was not only a great feat of engineering; it was also needed for the economic expansion of the United States. It connected the Atlantic and Pacific Oceans and made us one country. We now had a unified nation connected by a ribbon of steel and the telegraph lines that ran alongside of the railroad.

For years the nation traveled and shipped on rails. It was the primary means of intercontinental transportation and communication. There were high profile trains like the New York Central’s Empire State and the Santa Fe’s Super Chief. A passenger could travel from New York City to Los Angeles, via Chicago, in comfort and elegance while enjoying the scenery of the great southwest from the glass-domed observation cars.

Two things brought an end to passenger rail travel in the United States — the interstate highway system and the growth and safety of air travel. Rather than taking four days to travel from New York City to Los Angeles you could fly the same distance in eight hours. With the explosion of the auto industry in the 1950’s Americans were now seeing the USA in the personal automobile where they had the freedom to go where they pleased when the pleased. With the completion of the interstate highway system in 1978 rail passenger service was about dead and the railroads knew it. This is why they gave up on transcontinental passenger service and devoted their resources and money to freight service.

Now we have a new resurgence in passenger rail service, a resurgence the railway companies want no part of. We have AMTACK, a government owned corporation, that runs passenger trains at a billion dollar loss each year — money out of the taxpayer’s pocket. We also have a federal government that wants to push passenger rail service at the expense of the taxpayers — spending money we don’t have to finance something called High-Speed Rail. (See: Does California Really Need High Speed Rail? And Why High Speed Rail is Obama's Fantasy.)

The latest example of this fantasy is something called the DesertXpress, a proposal to build a privately funded high-speed rail passenger train from Victorville, California, to Las Vegas, Nevada.

The proposal would provide an alternative to automobile travel between the Los Angeles area to Las Vegas along Interstate 15 as well as an alternative to airline travel. Interstate Highway 15 is a direct automobile route between the two regions and carries heavy traffic. Greyhound buses cover the route in between five and seven hours, while automobiles take around four hours. Currently, there is no passenger train service to Las Vegas. Amtrak last operated passenger train service to Las Vegas in 1997 on its Desert Wind route, which was cancelled due to budget cuts.

The city of Victorville was selected as the location for the westernmost terminal since extending the train line farther into the Los Angeles basin through the Cajon Pass would be prohibitively expensive. Victorville is about 40 mi from Riverside, where a station was proposed for the California high-speed rail line. The station would include free parking and through-checking of baggage straight to the Las Vegas Strip resorts. A future extension would include a new link to the California High-Speed Rail station in Palmdale.

The train would travel at speeds of up to 150 mph and would make the 186 mile trip from Victorville to Las Vegas in about 1 hour 30 minutes, shaving about two hours off the travel time. The backers of the project are currently in the process of raising funds for its construction, estimated at between 4 to 5 billion dollars. The cost would be about $21 million per mile, typical of European HSR construction. The project is planned to begin construction in early 2012 and start full service by early 2016.The problem is that no private investors are interested and the planners are looking to the Federal Railroad Administration for a 5 billion dollar loan — similar to Solyndra, and we know how well that went. The question is: would you drive to Victorville, park your car, and take a train to Las Vegas to save two and a half hours and have no car in Las Vegas?

Richard N. Velotta writes in the Las Vegas Desert Sun in February, 2011:

“Ever since plans to build a high-speed train from Las Vegas to Victorville, Calif., were unveiled, developers have been adamant about one point — they wouldn’t ask taxpayers to fund it.

But DesertXpress Enterprises has no qualms about borrowing from taxpayers — and borrowing big — for a project that skeptics say has little chance of gaining the ridership needed to pay for it.

The company has applied for a $4.9 billion loan through a federal program to construct what is billed as a $6 billion project. Since the plan was presented nearly two years ago, the cost estimate has ballooned from $4 billion.

The Federal Railroad Administration will hire an independent analyst to determine if ridership estimates, $50 one-way fares and other related revenue will be enough to repay the loan and prevent taxpayers from getting stuck with the bill.

The company, which is waiting for environmental clearances before it can begin preliminary design and engineering on the 185-mile route, requested the loan through the federal Railroad Rehabilitation & Improvement Financing program.

Under the program, funding may be used to develop or establish new railroad facilities, and direct loans can finance up to 100 percent of a railroad project with repayment periods of up to 35 years and interest rates the same as what the government is charged.

If approved, the loan would be more than four times the amount the program has lent to 28 railroad projects since 2002.

Since then, it has loaned $1.02 billion with the largest loan, $233 million, going to the Dakota, Minnesota & Eastern Railroad in 2003.”

……

“Developers chose Victorville because most passenger traffic in cars pass through the high-desert community en route to Las Vegas on I-15.

After critics ripped the Victorville end point, the company announced plans to build an extension west to Palmdale, where a station for the California high-speed rail project is planned.

The project also has been criticized because Sen. Harry Reid, D-Nev., a longtime supporter of a magnetic levitation system between Las Vegas and Los Angeles, withdrew his support and began backing DesertXpress in 2009. Reid said he was frustrated by the lack of progress on the maglev project, but critics said the switch was because DesertXpress investor Sig Rogich formed a campaign support group for Reid’s re-election months before the change in support.

DesertXpress officials have said a maglev is too expensive, but boosters of the technology say long-term costs are about the same because of the higher maintenance expense for traditional rail compared with the frictionless maglev, which is propelled on a magnetic field.”

Again Mr. Velotta writes on March 26, 2012 in the Desert Sun:

“I want to know if Sen. Harry Reid is getting frustrated with your lack of progress the way he did with the backers of a proposed maglev project.

You know the one I mean — the project that would have gone all the way to Los Angeles and Anaheim and better served Nevadans wanting to go to Southern California as well as Californians looking to come to Las Vegas.

The one with the technology capable of scaling Cajon Pass, unlike your technology.

The one embraced by several communities that viewed the line as a high-speed link between airports that could be used by commuters catching planes.

The senator pulled the financial rug from under the maglev project. Sure, he said he was frustrated that nothing had been accomplished in 30 years of maglev planning. But once the federal government passed legislation in 2008 to finance the engineering for a demonstration project, the senator managed to hijack that $45 million to other transportation projects a year later.”

…..

“I also want to know, DesertXpress, if you’re still confident in the Las Vegas-Victorville transportation model after all the scorn you’ve endured in the past four years. Aren’t you tired of hearing people say, “Victorville?” in disbelief when you explain that you’re asking Southern Californians to drive there, park their cars and board a train to take them on what would be the easier leg of the journey to Las Vegas? Let’s not forget, either, that our California visitors would have no car once they arrived in Nevada and would have to rely on public transportation, taxis or a rental. Never mind that there’s virtually no upside to Las Vegans looking to go to Southern California, either.

I’d like to know if you’ve rethought the maglev technology since the commercially operating line in Shanghai is maintaining a more than 99 percent on-time efficiency rating after eight years in service. Isn’t it about time we stop calling maglev “unproven?”

I know, your suppliers are all friends and steel-wheel-on-rail guys, the same ones who dominate policy at the Federal Railroad Administration. There’s virtually no hope that this is going to change with that good ol’ boy network in place, despite President Barack Obama’s urging to get the fastest train in the world deployed in the United States. I don’t think he was talking about a 150 mph system that most don’t consider to be high-speed rail anymore.”

As Mr. Mr. Velotta so eloquently points out folks in Nevada have no need for the DesertXpress. Suppose they want to go to Disneyland. What do they do? Take the train from Las Vegas to Victorville than rent a car to journey the next 70 or so miles to Anaheim. I don’t think so. In essence the DesertXpress is a one way train to take folks from Los Angeles, Riverside, and orange counties to Las Vegas and back for $100 dollars each way.

In 1991 I was involved with the proposed Maglev line from Anaheim to Las Vegas. This was to be a cooperative venture between Transrapid (the German consortium pushing their Maglev technology), The California High Speed Rail Corporation, Bechtel to design, build and operated a Maglev lain from Disneyland to Las Vegas. The technology seemed sound but there were two major problems. One is that they could not get a permit from Caltrans to use any right of way along the I-15 corridor and two; they could not find any investors. Eventually the right of way issue was solved by an act of the California Legislature, but there still was no money coming forth.

At the time there were no revenue generating Maglev lines anywhere in the world, not even in Germany. There were many nations interested, but no one wanted to pony up any bucks. Eventually, in January 2001, the Chinese signed an agreement with the German maglev consortium Transrapid to build an EMS high-speed maglev line to link Pudong International Airport with Longyang Road Metro station on the eastern edge of Shanghai. This Shanghai Maglev Train demonstration line, or Initial Operating Segment (IOS), has been in commercial operations since April 2004 and now operates 115 (up from 110 daily trips in 2010) daily trips that traverse the 19 miles between the two stations in just 7 minutes, achieving a top speed of 431 km/h (268 mph), averaging 266 km/h (165 mph). On a 12 November 2003 system commissioning test run, the Shanghai maglev achieved a speed of 501 km/h (311 mph), which is its designed top cruising speed for longer intercity routes. Unlike the old Birmingham maglev technology, the Shanghai maglev is extremely fast and comes with on time – to the second – reliability of greater than 99.97% The cost of this 19 mile line was 1.3 billion dollars — all paid by the Chinese government or about 68.4 million per mile. The line is totally subsidized by the Chinese government. The Birmingham line was closed before it ever opened.

In 1990, while working with the German Federal Railway (Deutsche Bundesbahn), I had the opportunity to ride the maglev Transrapid 07 on the 31.5 kilometer (19.5 mile) near Emsland, Germany. The line is a figure-8 loop running between Dörpen and Lathen with turning loops at each end. The train achieved 420 km/h (260 mph).with little or no vibration or noise. I was convinced that this was the future or rail transportation until our host, an executive with the DB cast his doubts on the future of Transrapid. He as doubtful that a maglev line would ever be built in Germany due to the present rail infrastructure in the country. He also said, that because there was no real example of a revenue generating line private investment would be hard to come by and it would take government to finance such a project and subsidize it forever.

Klaus was right. The Transrapid/Bechtel Anaheim to Las Vegas maglev died a quick death and Bechtel lost several million dollars before pulling out of the venture. It was not until the Chinese decided to build an EMS line to show off for the 2004 Sumer Olympics and the benefits of their socialist state that any semblance of a revenue generating maglev line was constructed.

Now a private concern wants to build a steel-wheel train from Victorville to Las Vegas with a loan from the taxpayers. On May 10, 2012 Ainsley Earhardt of Fox News gave a good report on the status and hurdles facing DesertXpress Enterprises and the Victorville to Las Vegas train. (Click here to see her report)

While the city fathers in Victorville would like to see business generated in their high desert city the DesertXpress is not the way to go, To this day they have not been able to make the Southern California Logistic Airport (the old George AFB) a success. The only way this rail scheme can be built is for the federal government to pony up the taxpayer money. There is nothing in Article I, Section 8 of the Constitution allowing them to do so. Why should a taxpayer in Montana or Arkansas be on the hook for 5 billion dollars for something they will never use nor achieve any benefit from? To me this is just another Solyndra project that the masterminds in Washington and Nevada want. If it’s that great why don’t the big hotel-casinos in Vegas pony up the bucks? I doubt that businessmen like Steve Wynn will make such an investment if he cannot see a good return.

Lake Tahoe Trip — Day Three

“Tourists don't know where they've been, travelers don't know where they're going.” — Paul Theroux

May 14, 2011 was the third day of our Tahoe trip and our 51^st wedding anniversary. As we had a big celebration with family and friends for our 50^th anniversary last year we had planned nothing special for this day except a nice dinner at Harrah’s Casino.

The day was cloudy and overcast not like the two previous days and the temperature had dropped about 10 degrees. It did not look like it was going to be a good day for tourist things and taking pictures. But, with that in mind we headed out for Carson City to see what we could find to do. One thing I wanted to do was to locate an original Lincoln Highway marker that I had read about. I figured the marker would probably be along historic Hwy 50 in the center of the city.

Laboring under this assumption we drove up and down North Carson Street (Hwy 50) looking for the marker. Having no luck finding it we decided to stop in the Nevada State Museum and ask if they knew where the marker was. After parking the car we walked towards the museum and right on the Corner of North Cason and West Robinson sat the marker — what luck!

We spent about two hours in the museum visiting the various galleries and a complete mock-up of a mine under the museum. The museum is located in the old Carson City Mint building and several years ago the acquired an adjacent bank building and with the abandonment of the road between the Mint and the bank the museum was able to grow to its present size. It is well worth your time if you ever get to Carson City.

One exhibit in the museum is a gallery of black and white photos taken over the years by one photographer. There are photos of Boulder Dam when it was under construction, Las Vegas in 1953 and other Nevada scenes. The photos have been enlarged to at least 40x40 inches and they are crystal clear and sharp as a tack. There is something about black and white that makes history come alive.

After the museum we ventured east on U.S. 50 to see if could fine some remnants of the Lincoln Highway, but no such luck. As the weather was turning colder and more gloomy we decided to head back to the hotel and get warm.

For dinner we went to Harrah’s and decided on the buffet on the 18^th floor. The buffet was great and offered everything for crab and Chinese food to filet mignon and Italian dishes. There was also a great variety of deserts including ice cream, pies and cakes. Kathy had the crab, turkey, ribs and baked potato while settled for the filet, vegetables and mashed potatoes with gravy. The meal was great, but a bit on the pricy side for a buffet at $28 per person.

After dinner we both ventured into the casino where I lost $5.00 and Kathy won $28. She always wins while I always lose. That’s why I get bored so quickly playing the machines. I am not a gambler.

Tomorrow is the big day for the bike race so we have to clear out of the hotel by no later than 10:30 or we will get stuck here for the afternoon. There are over 1,000 cyclists in his 128 mile race around Lake Tahoe and the roads are all signed with warning and directional signs for the cyclists — the roads will belong to them.

All in all, weather excepting, it was a pretty good day for touring the area. Tomorrow the weatherman is predicting snow showers so we are looking for some indoor event away from Stateline.