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Richard Glen Colter
P.O. Box 11312
Pleasanton, CA 94588
925.202.7776 – This e-mail address is being protected from spambots. You need JavaScript enabled to view it.
UNITED STATES DISTRICT COURT
District of Nevada – Las Vegas
________________________________________
RICHARD GLEN COLTER, Petitioner/Plaintiff;
v.
Ray LaHood; Brian Sandoval; State of Nevada;
United States of America
Respondents/Defendants

Case No. 2:11-cv-00630 Memorandum of Points and Authorities
Introduction
In consideration that Nevada has already argued that the setting of speed limits is a traditional state function, we cite the following 9th Circuit Appellate Court ruling:
Skinner v Nevada 884F.2d 445 (1989):
/9/ Petitioner cites two sources in support of its contention that regulation of highways is a "traditional State function." Its reliance on both is misplaced. Far from recognizing an exclusive state power over maximum rates of speed, the statute petitioner cites -- 23 U.S.C. 145 -- simply expresses Congress's decision to permit the States to determine which highway projects shall be federally funded. The statute thus emphasizes precisely the cooperative federal and state control over the highways on which the court of appeals relied; it is entirely consistent with Congress's determination in 23 U.S.C. 154 that federal funding would be available to a State only if it conformed to the 55/65 mph speed limits. See Pet. 11-12. Nor do the cases cited by petitioner (Pet. 12-13) that have adverted to the power of the States to regulate their own highways support petitioner's contention that States have exclusive constitutional power over their highways. Both cases cited
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by petitioner, Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 523 (1959), and Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 444 (1978), struck down state highway regulations under the dormant Commerce Clause. They thus necessarily establish that there is a substantial federal interest – exercisable by Congress if it chooses to do so -- in regulation of the nation's highways. See Pet. App. 24a. 1
We cite Skinner vs. Nevada because it established that R2-1 safety devices (speed limit sign) are subject to ―substantial federal interest‖. Unfortunately, Skinner vs. Nevada left open all questions related to the US Constitutional rights of motorists. Apart from Skinner vs. Nevada, this case makes the distinction that Nevada‘s use, enforcement, and adjudication of traffic control devices was preempted by the Highway Safety Act of 1966.2 Therefore, this case may be considered a continuation of the Skinner vs. Nevada case, in that today we are asking this court to weigh the US Constitutional rights of motorists against Congress‘ intent under the highway safety act, with determination of the governmental duties for states and the US DOT. In consideration that this is a field occupied by Congress, making state‘ rights subordinate, there are two primary issues for review.
#1) Petitioner will show that Respondents have nullified regulatory standards mandated under the Highway Safety Act of 1966, by comparing and contrasting the applicable legal doctrines, codes, and laws for R2-1 (speed limit sign) safety devices. Petitioner‘ Amended Complaint listed specific examples where Respondents have preempted the regulatory standards enacted by Congress:
1. As promulgated, NRS 484.361(1)(c)&(d) nullifies Uniform Vehicle Code (UVC) 11-801.
2. NRS 484.361(1)(c)&(d) nullified the administrative requirements (circa 1995 – 1997) of Federal Regulation 1988 MUTCD 2B-10.
1 Nevada v. Skinner 884 F.2d 445(1989)
2 The Highway Safety Act of 1966 (P.L. 89-564, 80 Stat. 731)
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3. Federal Regulation 2009 MUTCD 2B-13 nullifies UVC 11-801.
4. The fine schedule under NRS 484.361(1)(c)&(d) nullifies the fine schedule set under the Uniform Vehicle Code 17-101(a)...(b).
5. Federal Regulation 2003/2009 MUTCD 2B-13 nullifies Congress‘ intent, in the context of the administrative duties imposed by 5 USC 706, under the Highway Safety Act.
#2) The second issue for review concerns rights secured under the U.S. Constitution, namely the 1st, 4th, 5th, 6th, 8th, and 14th Amendments; and whether sovereign states, in concert with an officer acting under the executive branch of the U.S. Government, can enact and enforce a regulation(s) that nullifies these rights. Petitioner‘ Amended Complaint outlined the regulatory codes that are responsible for nullifying rights secured under the U.S. constitution:
1. NRS 484.361(1)(c)&(d) nullifies the 1st, 4th, 5th, 6th, 8th, and 14th Amendments of the US Constitution.
2. Federal Regulation 2003/2009 MUTCD 2B-13 nullifies the 1st, 4th, 5th, 6th, and 14th Amendments of the US Constitution.
Points and Authorities
1. Highway Safety Act 1966: All traffic control devices, vehicle codes, regulatory standards, and laws shall be uniform in application, expectation, and adjudication; and in accord with the intent of Congress regardless of state lines, type, class, or the public agency having jurisdiction:
Each State shall have a highway safety program approved by the Secretary, designed to reduce traffic accidents and deaths, injuries, and property damage resulting therefrom. Such programs shall be in accordance with uniform standards promulgated by the Secretary.... Such uniform standards shall be promulgated by the Secretary so as to improve driver performance ... and to improve pedestrian performance. In addition such uniform standards shall include ... provisions for an effective record system of accidents ...
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accident investigations ... vehicle registration, operation, and inspection, highway design and maintenance ... traffic control, vehicle codes and laws, surveillance of traffic for detection and correction of high or potentially high accident locations, and emergency services.3
The Preemption Doctrine applies to the Highway Safety Act of 1966 because of the Supremacy Clause. The US Supreme Court unambiguously defined the scope of ―The Supremacy Clause‖ when Congress occupies an entire field:
"Pre-emption may be either [458 U.S. 141, 153] express or implied, and is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." … “A pre-emptive regulation's force does not depend on express congressional authorization to displace state law”4
Although Nevada certifies compliance with the Highway Safety Act every year, as a condition of Federal highway fund disbursements5, Petitioner will now show that Respondent‘s have created a regulatory standard that indisputably impeaches, nullifies, and preempts elements of Congress‘ Highway Safety Act of 1966.
2. Manual for Uniform Traffic Control Devices: Congress adopted the MUTCD as the standard for all states to follow. 6
MUTCD: (Standards are in Bold, a ―shall‖ in federal regulations)
Introduction
Standard: Traffic control devices shall be defined as all signs, signals, markings, and other devices used to regulate, warn, or guide traffic, placed on, over, or adjacent to a street, highway, pedestrian facility, or bikeway by authority of a public agency having jurisdiction.
3 The Highway Safety Act of 1966 (P.L. 89-564, 80 Stat. 731)
4 Fidelity Federal Sav &Loan Assn. V. De La Cuesta, 458 U.S. 141 (1982)
5 US 23 CFR 630.112(a)
6 23 USC 402 (a,7); 23 CFR 655.603; 23 USC 109(d);
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The Manual on Uniform Traffic Control Devices (MUTCD) is incorporated by reference in 23 Code of Federal Regulations (CFR), Part 655, Subpart F and shall be recognized as the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel in accordance with 23 U.S.C. 109(d) and 402(a).
Nevada adopted the MUTCD in perpetuity as follows:
NRS 484.781 Adoption of manual and specifications for devices for control of traffic by department of transportation.
1. The department of transportation shall adopt a manual and specifications for a uniform system of traffic-control devices consistent with the provisions of this chapter for use upon highways within this state. The uniform system must correlate with and so far as possible conform to the system then current and approved by the American Association of State Highway Officials and the National Joint Committee on Uniform Traffic Control Devices.
2. All devices used by local authorities or by the department of transportation shall conform with the manual and specifications adopted by the department.
(Added to NRS by 1969, 1488; A 1979, 1814)
Commencing with the 1988 edition, the MUTCD required engineering studies for the use and application of all R2-1 safety devices:
1988 MUTCD:
"2b-10 Speed Limit Sign
The Speed Limit sign shall display the limit established by law, or by regulation, after an engineering and traffic investigation has been made in accordance with established traffic engineering practices. The speed limits shown shall be in multiples of 5 miles per hour.‖7
In defiance of the Federal regulatory requirement predicating the use of R2-1 safety devices on a documented traffic engineering study, Nevada circumvented this Federal Law circa 1995 when they created their own regulatory standard NRS 484.361(c)&(d)
7 1988 Manual for Uniform Traffic Control Devices, section 2B-10
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sans engineering studies. If Nevada‘s Motion to Dismiss had any merit, they would offer proof that they complied with this Federal law.
3. Uniform Vehicle Code 11-801: The ―Basic Speed Rule‖ of Federal law Uniform Vehicle Code (UVC) 11-801 has been the preeminent legal doctrine and guidance for motorists since 1926, when a committee under Commerce Secretary Herbert Hoover compiled the first national Uniform Vehicle Code, thus providing a model for traffic laws in all states:
No person shall drive a vehicle greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.8
The UVC was adopted by Congress under the Highway Safety Act 1966, for the purpose of establishing safety standards for all states to follow, and it has the force and effect of LAW:
2003 MUTCD § 1A.07 Responsibility for Traffic Control Devices
Standard: The responsibility for the design, placement, operation, maintenance, and uniformity of traffic control devices shall rest with the public agency or the official having jurisdiction. 23 CFR 655.603 adopts the Manual on Uniform Traffic Control Devices as the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. When a State or other Federal agency manual or supplement is required, that manual or supplement shall be in substantial conformance with the national Manual on Uniform Traffic Control Devices.
23 CFR 655.603 also states that traffic control devices on all streets and highways open to public travel in each State shall be in substantial conformance with standards issued or endorsed by the Federal Highway Administrator.
Support: The "Uniform Vehicle Code" (see Section 1A.11) has the following provision in Section 15-104 for the adoption of a uniform Manual:
8 Uniform Vehicle Code 11-801
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"(a)The [State Highway Agency] shall adopt a manual and specification for a uniform system of traffic control devices consistent with the provisions of this code for use upon highways within this State. Such uniform system shall correlate with and so far as possible conform to the system set forth in the most recent edition of the Manual on Uniform Traffic Control Devices for Streets and Highways, and other standards issued or endorsed by the Federal Highway Administrator."
"(b) The Manual adopted pursuant to subsection (a) shall have the force and effect of law."9
Petitioner will show that Respondent‘s have violated UVC 11-801, by developing the record on how Respondents have created and are policing regulatory standards, vehicle codes, and laws that indisputably target motorists who are otherwise driving in a ―reasonable and prudent‖ manner. More importantly, Respondent‘s will have no evidence to show that their regulatory standards {NRS 484.361(c)&(d)}, vehicle codes, and laws do not target motorists who are driving ―reasonable and prudent‖. If Nevada‘s Motion to Dismiss had any merit, they would articulate and offer proof that their regulatory standard does not violate the standard imposed by Congress under UVC 11-801, i.e. that NRS 484.361(c)&(d) does not target motorists who are driving ―reasonable and prudent under the conditions‖.
4. UVC 17-101(a): Contrary to the $200 fine limit imposed by Congress under UVC 17-101(a)10, Nevada again circumvented the law when they implemented a fugitive fine schedule for violations of NRS 484.361(c)&(d) {Example: Petitioner was fined $482}. The fine schedule for each state is published on the National Highway Traffic Safety Administration‘s (NHTSA) website.11 On the website, you can see that Nevada is one
9 2003 MUTCD § 1A.07
10 Uniform Vehicle Code 17-101(a)
11 http://www.nhtsa.gov/people/injury/enforce/speedlaws501/summary_table.htm
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of the worst offenders of the several states, but is one of at least 19 states with a fugitive fine schedule.
The NHTSA website also confirms that Nevada further violates Federal law by imposing incarceration under NRS 484.361(c)&(d). If Nevada‘s Motion to Dismiss had any merit, Nevada would explain why they impose fines and penalties that are otherwise prohibited by Federal law.12
5. Interstate Commerce: There are numerous cases where the US Supreme Court has ruled that all regulations affecting interstate commerce must have a factual foundation (see NLRB v. Jones & Laughlin Steel Corp.13; Kassel v. Consolidated Freightways Corp.)14 Nevada‘s regulatory standard under NRS 484.361(c)&(d) has no factual foundation. If Nevada‘s Motion to Dismiss had any merit, they would offer a plain statement explaining the type of regulatory standard they have created (safety, environmental, fuel saving, etc), its intended purpose (reduce accidents, reduce carbon emissions, reduce fuel consumption, etc), and the evidence that supports the standard (engineering documentation, scientific evidence, peer reviewed studies, etc). But the regulatory standard that Nevada has created has no factual foundation, and must be reviewed pursuant to the US Supreme Courts interstate commerce rulings, notwithstanding all other Rule of Law requirements governing the use of R2-1 safety devices.
6. 1st Amendment: We argue that travel is an inextricable part of our expression. After all, we express ourselves directly and indirectly by our locomotion, so we cannot truly
12 Uniform Vehicle Code 17-101(a)
13 National Labor Relations Board v. Jones & Laughlin Steel Corp. (No. 419) 83 F.2d 998, reversed
14 Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981)
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express much of anything if we do not have the freedom to travel and move about. Respondents have created regulatory standards that infringe on the inalienable right to travel (by automobile), and we argue that this infringes on freedom of expression/speech, a fundamental right protected by the 1st Amendment.
7. 4th Amendment: The US Supreme Court decided in Whren vs. U.S. that probable cause is a necessary prerequisite for any traffic stop:
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the meaning of this provision. See Delaware v. Prouse, 440 U.S. 648, 653 (1979); United States v. Martinez Fuerte, 428 U.S. 543, 556 (1976); United States v. Brignoni Ponce, 422 U.S. 873, 878 (1975). An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. See Prouse, supra, at 659; Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (per curiam)15
In the context of a speeding violation, we assert that the legal test for probable cause turns on the adjudication standard set by Congress i.e. the Basic Speed Rule of UVC 11-801. Simply stated, if a motorist is driving in a ―reasonable and prudent‖ manner, there is no probable cause to arrest them. Nevada cannot prove that their regulatory standard does not target ―reasonable and prudent‖ drivers, because their regulatory standard has no probative factual, legal, or engineering foundation; therefore, the regulatory standard enforced by Nevada results in an unknown number of arrests that are made in the absence of probable cause: A clear violation of the 4th Amendment of the US Constitution (emphasis).
15 Whren vs United States, 517 U.S. 806, (1996)
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More importantly, we argue that any stop that is made solely for violating a statutory speed limit (sic), in the absence of any probative empirical, scientific, or engineering evidence that justifies the statutory speed limit, is necessarily pretextual. Numerous US Supreme Court cases, including Whren vs. U.S., have made it clear that pretextual arrests violate the 4th Amendment requirement of ―probable cause‖.
The essence of our argument here is that if the numeric limit (and/or its enforcement threshold16) are “spurious”, then the “probable cause” to arrest is also “spurious”. When we say ―spurious‖, we mean there is no probative empirical, scientific, or engineering justification.
As to any argument that the wholesale violation of 4th Amendment protections from illegal seizure should continue in the interest of custom, established practice, or stare decisis, we turn to the Supreme Court decision of Arizona v Gant; where the unconstitutional search powers granted to police officers vis-à-vis New York v Belton was overturned:
The doctrine of stare decisis is of course ―essential to the respect accorded to the judgments of the Court and to the stability of the law,‖ but it does not compel us to follow a past decision when its rationale no longer withstands “careful analysis.” Lawrence v. Texas, 539 U.S. 558, 577 (2003). We have never relied on stare decisis to justify the continuance of an unconstitutional police practice. And we would be particularly loath to uphold an unconstitutional result in a case that is so easily distinguished from the decisions that arguably compel it.17
If we compare the statutory enforcement thresholds of the several states, we find some states using 55 MPH on interstates (Oregon), and some states using thresholds as high as 85 MPH (Texas). And there is no probative empirical, scientific, or engineering justification for any of them, because none of the several states set their highway and interstate speed limits based on the ―reasonable and prudent‖ standard of UVC 11-801.
16 Enforcement Threshold: A predetermined number added to the speed limit whereupon a motorist is presumptively violating the law. Generally = 1 MPH.
17 Arizona v Gant, 556 U.S. (2009)
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Therefore, we argue that these statutory speed limits must be declared arbitrary and capricious, pretextual, and unconstitutional after a “careful analysis”.
It is time for Nevada to articulate how/why the ―spurious‖ numbers of 70/75 MPH establishes ―probable cause‖ that motorists are violating the ―reasonable and prudent‖ adjudication standard set by Congress under UVC 11-801. There are limited ways that Nevada can prove that their 70/75 MPH numeric thresholds are not spurious, such as empirical data, scientific studies, and engineering covenants that support their contention. But this is where things become ―sticky‖.
Assuming arguendo that Nevada can show that its regulatory standard of 70/75 MPH is THE threshold that properly establishes violations of the ―reasonable and prudent‖ standard, ―probable cause‖ for arrest, no rebuttable defenses, etc.: In that scenario, the US DOT must explain why the other 49 states are not using the 70/75 MPH thresholds. After all, the Highway Safety Act requires uniformity of application, expectation, and adjudication (ibid #2).
8. 5th Amendment: At a minimum, substantive due process for adjudication of speeding offenses requires: 1) Proper and legal use of an R2-1 safety device. 2) Reasonable fines and penalties. 3) Compliance with all regulations and laws. Although Nevada certifies compliance with the Federal regulatory requirements for the use of traffic control devices in exchange for Federal highway funding, at no time did Nevada meet the compulsory factual, legal, and traffic engineering milestones for their use of R2-1 safety devices. If Nevada‘s motion to dismiss this case had any merit, they would have listed the factual, legal, and traffic engineering milestones, with an offer of proof demonstrating substantial compliance with those milestones.
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9. 6th Amendment: If a citizen is charged with a crime, the 6th Amendment guarantees them the right to confront their accuser(s), as held in the US Supreme Court case of Bullcoming vs. New Mexico.18 In that case, Bullcoming was convicted for DUI based on lab tests that confirmed his blood alcohol content; absent the opportunity to cross examine the analyst who performed the actual gas chromatograph test on his blood sample. Writing for the majority, Justice Ginsburg gave an example that is directly relevant to the instant case:
The potential ramifications of the New Mexico Supreme Court‘s reasoning, furthermore, raise red flags. Most witnesses, after all, testify to their observations of factual conditions or events, e.g., ―the light was green,‖ ―the hour was noon.‖ Such witnesses may record, on the spot, what they observed. Suppose a police report recorded an objective fact—Bullcoming‘s counsel posited the address above the front door of a house or the read-out of a radar gun. See Brief for Petitioner 35. Could an officer other than the one who saw the number on the house or gun present the information in court—so long as that officer was equipped to testify about any technology the observing officer deployed and the police department‘s standard operating procedures? As our precedent makes plain, the answer is emphatically ―No.‖ See Davis v. Washington, 547 U. S. 813, 826 (2006) (Confrontation Clause may not be ―evaded by having a note-taking police[ officer] recite the . . . testimony of the declarant‖ (emphasis deleted)); Melendez-Diaz, 557 U. S., at ___ (slip op., at 6) (KENNEDY, J., dissenting) (―The Court made clear in Davis that it will not permit the testimonial statement of one witness to enter into evidence through the in-court testimony of a second.‖).
In the context of a speeding violation, the ―accuser‖ is the licensed traffic engineer who set the speed limit, because Federal regulations require that only licensed traffic engineers set speed limits (emphasis). But the ―accuser‖ also includes the officer who witnessed the violation of the Basic Speed Rule under UVC 11-801. Here, Nevada fails on two counts: 1) Nevada did not, and cannot, produce the licensed traffic engineer
18 Bullcoming vs. New Mexico, 564 U.S No. 09-10876 (2011)
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who set the speed limit; along with the relevant comprehensive19 engineering documentation proving Nevada complied with all applicable laws, regulations, and engineering standards. 2) Nevada did not, and cannot, produce the officer who can articulate a violation of UVC 11-801, because Nevada police officers do not have the proper training for the enforcement of UVC 11-801; but more importantly, because the engineering documentation that Nevada police officers would refer to in determining the range of ―reasonable and prudent‖ speeds for any given section of roadway simply does not exist (emphasis). Therefore, in both instances, Nevada fails to meet the evidentiary and testimonial requirements pursuant to the confrontation clause of the 6th Amendment. If Nevada‘s motion to dismiss this case had any merit, Nevada would list the ―accusers‖ (witnesses) who stand ready to testify that motorists charged under NRS 484.361(c)&(d) have violated the national adjudication standard of UVC 11-801.
10. 8th Amendment: We argue that because the fines and penalties imposed under NRS 484.361(c)&(d) exceeds the fines and penalties allowed by Congress under UVC 11-701(a), Nevada‘s fine and incarceration schedule violates protections pursuant to the 8th Amendment.
11. 10th Amendment: With every Federal highway fund disbursement, Nevada waives any 10th Amendment claim to independence from the Highway Safety Act 1966.20
19 MUTCD Section 1A.13 Definitions:
26. Engineering Study—the comprehensive analysis and evaluation of available pertinent information, and the application of appropriate principles, Standards, Guidance, and practices as contained in this Manual and other sources, for the purpose of deciding upon the applicability, design, operation, or installation of a traffic control device. An engineering study shall be performed by an engineer, or by an individual working under the supervision of an engineer, through the application of procedures and criteria established by the engineer. An engineering study shall be documented.
20 Pennhurst v. Halderman, 451 U.S. 1, 17 (1981); Federal Power Commission v. Colorado Interstate Gas, 348 U.S. 492 (1955)
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12. 11th Amendment: Ostensibly, Nevada believes they are the primary party in this action: Such a belief would be misplaced. The primary parties here are the United States and the US DOT (Secretary LaHood), for allowing the several states, including Nevada, to operate fugitive traffic control devices, vehicle codes, and laws. Petitioner has the necessary locus standi to bring Nevada into the fold of this 5 USC 706 action; as necessary for addressing the US DOT‘s administrative misfeasance, malfeasance, or nonfeasance in their duties under the Highway Safety Act of 1966. Relative to the 5 USC 706 action, it is clear that Petitioner‘ constitutional challenge of NRS 484.361 is not the primary action here.
With the 5 USC 706 action in mind, we mention that the 11th Amendment does not bar complaints, requests for review of state compliance with both federal laws and the US Constitution; or requests for injunctive relief where there are conflicts between state and Federal/Constitutional law. More importantly, the US Supreme Court has ruled that Federal courts have the power to enjoin state officials from violating Federal law.21 In consideration of Petitioners locus standi, a 5 USC 706 cause of action and complaint was filed requesting review and injunctive relief, as remedy for the harm inflicted by Nevada‘s fugitive and unconstitutional laws. We list the constitutional issues under a separate cause of action, for the purpose of distinction, and because we chose a deductive approach. With these points in mind, Nevada is a proper party to the 5 USC 706 cause of action, and separately for the constitutional challenge of NRS 484.361; as their example, participation, and resources are essential for an expeditious adjudication of the issues raised.
21 Ex parte Young, 209 U.S. 123 (1908)
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13. 14th Amendment: By enacting the Highway Safety Act of 1966, Congress occupied the entire field of traffic control, vehicle codes, and laws related to transportation. As such, Nevada‘s use of R2-1 safety devices is under the color of Federal law. The foregoing points and authorities make it clear that Nevada, notwithstanding the other 49 states and the US DOT, has not complied with the Federal laws that provide ―equal protections‖ guaranteed by the 14th Amendment. On grounds of the 14th Amendment, Petitioner seeks review of the foregoing matters of law and constitutional issues presented.
14. Empirical, Scientific, and Engineering Evidence: There is a scientific method and calculus for determining the presumptive range of ―reasonable and prudent‖ speeds for any given section of roadway. The authorities for this method are expansive. We list some of them on the References page, noting that nearly all of these authorities are certainly part of the US DOT archives.
If Nevada‘s Motion to Dismiss had any merit, they would cite the empirical, scientific, and engineering authorities that supports and proves that their regulatory standard only targets drivers who are not driving in accord with the ―reasonable and prudent‖ standard under UVC 11-801.
15. General Points & Authorities: Nevada and the US DOT have sponsored and/or created regulatory standards and laws that impeach elements of the Highway Safety Act of 1966, as succinctly illustrated in the following table:
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National Safety Standard Respondents’ Standard
Uniform Vehicle Code 11-801
NRS 484.361(1)(c)
Genesis
1926
1995
Companion Statutes
NRS 484.361(1)(a)…(b)
NRS 484.361(1)(d)
USDOT Analogue
1988 MUTCD 2B-10; 2000 MUTCD 2B.11
2003/2009 MUTCD 2B-13
Legal Doctrine
Basic Speed Rule
Police Powers
Engineering Standard
85th Percentile
None
NV Analogue
NRS 484.369(1) Factual Foundation
None
Legal Implication
Driving is a Conditional Right
Safe Driving is a Crime
Affect on Safety
Minimizes Accidents & Fatalities
Increases Accidents & Fatalities
Conforming States
50*
1
Freedom to Travel (1st)
No Interference
Nullifies 1st Amendment
Right to Privacy (4th)
No Interference
Nullifies 4th Amendment
Due Process (5th)
Provides Due Process
Nullifies Due Process
Confrontation (6th)
Allows Cross-examination
Nullifies Confrontation
Equal Protection (14th)
Uniform National Safety Standard
Arbitrary & Capricious
*The ―basic speed rule‖ language appears in the vehicle code statutes of all 50 states.
Table X
Although Congress passed the Highway Safety Act of 1966 to prevent local authorities from using rogue regulatory standards on our nation‘s transportation network, we can see in Table X one of the unfortunate consequences of Nevada‘s fugitive regulatory standard: Higher accident and fatality rates have been implicated with spurious numerical values posted on R2-1 safety devices.22 Petitioner will prove, using empirical data provided by the state of Nevada, that the regulatory standard put on by Nevada creates precisely the conditions necessary for higher accidents and fatalities described in the Parker study.
22 Martin R. Parker & Associates, Inc., October 1992; Report No. FHWA-RD-92-084: “Accidents at the 58 experimental sites where speed limits were lowered increased by 5.4 percent.”
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From Table X, we can see that MUTCD 2B-10 conflicts with its progeny MUTCD 2B-13, and while we hold this issue for future briefing, we will touch on a few points here. Nevada should acknowledge that MUTCD 2B-10 was controlling law when Congress repealed the National Maximum Speed Limit23 in 1995, and that was when the non conforming sections of NRS 484.361(3)(4) were passed. NRS 484.361(c)&(d) had the effect of circumventing the engineering studies that 2B-10 required. But Nevada could simply update their legislative record today, and say they are in compliance with 2B-13, and this understanding brings us closer to the crux of this case.
Whereas MUTCD 2B-10 required licensed traffic engineers to determine the numerical value to be posted on R2-1 safety devices, MUTCD 2B-13 inexplicably allows non-engineers to determine the numerical value that is posted on R2-1 safety devices, in effect circumventing decades of empirical evidence, scientific studies, and traffic engineering covenants. We argue that MUTDC 2B-13 violates the administrative standards imposed under 5 USC 706; and as previously stated, 5 USC 706 is the primary action in this case. That 2B-13 nullifies the need for engineering studies, given that engineering studies are the only way to establish the range of ―reasonable and prudent‖ speeds, means that the US DOT has effectively nullified Congress‘ unimpeachable safety standard under UVC 11-801 (emphasis). So the crux of this case is to decide the ―legal‖ methods for determining the ―reasonable and prudent‖ range of speeds for any given section of roadway.
From their actions, we can see that Nevada and the US DOT support ―statutory‖ speed limits that are determined by non-engineers, and we have already described how
23 National Highway System Act of 1995, section 205(d)
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this creates conflicts of law: It is indisputable that the foregoing empirical studies, engineering covenants, and data that will be provided by Nevada, all prove that ―statutory‖ speed limits violate the unimpeachable ―reasonable and prudent‖ standard of UVC 11-801. But the actual burden of proof is on Respondent‘s to show that statutory speed limits, adjudicated as a maximum threshold, does not target drivers who are otherwise driving in accord with the ―reasonable and prudent‖ standard. We are very curious to see how Respondent‘s intend to argue this, in consideration that engineering studies are the only way to establish the range of ―reasonable and prudent‖ speeds for any given section of roadway, and given that Respondent‘s have no such engineering studies (emphasis).
CONCLUSION
Petitioner has given specific examples where the law has been violated by Respondent‘s, and these violations of law will continue, resulting in irreparable harms and injuries to citizen motorists (including Petitioner). As such, we pray that Respondents Motion to Dismiss be denied, followed by Respondents giving an answer to the Amended Complaint, with the same degree of specificity. Therefore, respondent Nevada‘s answer to Petitioner‘s Amended Complaint must certify the following:
A) Compliance with all milestones and sections of the MUTCD, including 1988 2B-10 through 2003 2B-13.
B) Compliance with all sections of the Uniform Vehicle Code, especially 11-701a and 11-801.
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C) That all Nevada officers who enforce R2-1 safety devices have proper training specific to the enforcement of UVC 11-801, with specificity as to the individual who is in charge of that training.
D) That enforcement of R2-1 safety devices complies with the 1st, 4th, 5th, 6th, 8th, and 14th Amendments of the US Constitution.
E) That the numerical value posted on R2-1 safety devices is never less than the 85th percentile (safest speed).
Because respondent‘s US DOT and the United States have oversight duties over the several states, they must certify the same as Nevada, but in the context of the several states:
A) That the several states are in compliance with all milestones and sections of the MUTCD, including 1988 2B-10 through 2003 2B-13, along with details of their audit findings.
B) That all states are in compliance with the Uniform Vehicle Code, especially 11-701a and 11-801.
C) That all police officers in the several states who enforce R2-1 safety devices have proper training that is specific to the enforcement of UVC 11-801.
D) That enforcement of R2-1 safety devices in the several states complies with the US Constitution, especially the 1st, 4th, 5th, 6th, 8th, and 14th Amendments.
E) That the numerical value posted on R2-1 safety devices is never less than the 85th percentile (safest speed): This also applies to statutory speed limits.
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If Respondents cannot certify, articulate, offer evidence, and prove that their regulatory standard has always been in compliance with all mandates of the Highway Safety Act of 1966, and that it does not infringe on the 1st, 4th, 5th, 6th, 8th, and 14th Amendment rights of motorists, then Petitioner prays that this Federal court exercise its authority to uphold the Law of the Land.
/s/Richard Colter
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References
FEDERAL REGULATIONS, CODES, WEBSITES:
1988 MUTCD: 2b-10 (Speed limit Sign) and progeny (pg. 5)
2000 MUTCD: Section 1A.13 and progeny (pg. 13)
2003 MUTCD § 1A.07 (pg. 7)
5 USC 706
23 U.S.C. 655.655, Subpart F (1995)
http://www.nhtsa.gov/people/injury/enforce/speedlaws501/summary_table.htm (pg. 7)
Manual on Uniform Traffic Control Devices (MUTCD), 23 U.S.C. 109(d) and 402(a)
US 23 CFR 655.603(b)(d)
US 23 CFR 630.112(a) (pg. 4)
Uniform Vehicle Code (UVC): § 11-801 AND 17-101(A) (pg. 6, 7, 8)
LAW CITES:
1st, 4th, 5th, 6th, 8th, 10th, 11th, and 14th Amendments
Arizona v Gant, 556 U.S. (2009) (pg. 10)
Bullcoming vs. New Mexico, 564 U.S No. 09-10876 (2011) (pg. 12)
Ex parte Young, 209 U.S. 123 (1908) (pg. 14)
Federal Power Commission v. Colorado Interstate Gas, 348 U.S. 492 (1955) (pg. 13)
Fidelity Federal Sav. & Loan Assn. V. De La Cuesta, 458 U.S. 141 (1982) (pg. 4)
Highway Safety Act of 1966 (P.L. 89-564, 80 Stat. 731) (pg. 2, 4)
Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981) (pg. 8)
National Labor Relations Board v. Jones & Laughlin Steel Corp. (No. 419) 83 F.2d 998, reversed (pg. 8)
National Highway System Act of 1995, section 205(d) (pg. 17)
Nevada v. Skinner 884 F.2d 445(1989) (pg. 2)
Pennhurst v. Halderman, 451 U.S. 1, 17 (1981) (pg. 13)
US Constitution - Article 1, Section 8 - (1),(3),(7),(18)
Whren et al. v. United States, 517 U.S. 806 (1996). (pg. 9)
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NEVADA STATUTES:
NRS 484.781
NRS 484.361
NRS 484.362 (1995)
NRS 484.369(1)
NRS 484.373
EMPIRICAL AND PEER REVIEWED SCIENTIFIC STUDIES:
1. Kent B. Joscelyn and Patricia A. Elston, Maximum Speed Limits - Volume II: The Development of Speed Limits: A Review of the Literature, Institute for Research in Public Safety, Indiana University, Bloomington, Indiana, October 1970.
2. John W. English and Steven H. Levin, ―Traffic Speed Limit Laws in the United States,‖ Traffic Laws Commentary, Vol. 7, No. 1, National Committee on Uniform Traffic Laws and Ordinances, Washington, DC, January 1978.
3. M. R. Parker, Jr., Synthesis of Speed Zoning Procedures, Publication No. FHWA- RD-85-096, Federal Highway Administration, Washington, DC, July 1985.
4. David Solomon, Accidents on Main Rural Highways Related to Speed, Driver, and Vehicle, Federal Highway Administration, Washington, DC, 1964 (Reprinted 1974).
5. J. M. Munden, ―The Relation Between a Driver‘s Speed and His Accident Rate,‖ Road Research Laboratory Report LR88, Road and Research Laboratory, Crowthorne, United Kingdom, 1967.
6. L. B. West, Jr. and W. J. Dunn, ―‗Accidents, Speed Deviation, and Speed Limits,‖ Traffic Engineering, Institute of Traffic Engineers, Washington, DC, July 1971.
7. D. L. Harkey, H. D. Robertson, and S. E. Davis, ―Assessment of Current Speed Zoning Criteria,‖ Transportation Research Record 7287, Transportation Research Board, Washington, DC, 1990.
8. Institute of Transportation Engineers, Transportation and Traffic Engineering Handbook, Second Edition, Washington, DC, 1982.
9. Davey L. Warren, ―Chapter 17 - Speed Zoning and Control,‖ Synthesis of Safety Research Related to Traffic Control and Roadway Elements, Volume 2, Publication No. FHWA-TS-82-233, Federal Highway Administration, Washington, DC, December 1982.
10. M. R. Parker, Jr., Fundamental Studies on Speed Zoning and Control - Task C Experimental Plan, Federal Highway Administration, Washington, DC, April 1986.
11. Transportation Research Board, Highway Capacity Manual, Special Report 209, Washington, DC, 1985.
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12. Joseph W. Guyton and A. K. Stonecipher, ‗Sampling Procedures for Determining Speed Characteristics at Rural Locations: A Progress Report, ‖Highway Research Board Bulletin 208, Washington, DC, 1959.
13. Marvin Fields, ―Speed Regulation, ‖Traffic Engineering Handbook, Institute of Traffic Engineers, Washington, DC, 1965.
14. Fred R. Hanscom, Improved Techniques for Collecting Speed Data-Final Report, Federal Highway Administration, Washington, DC, November 1984.
15. M.RossPalmer,―TheDevelopmentofTrafficCongestion,‖QualityandTheoryof Traffic Flow, Bureau of Highway Traffic, New Haven, Connecticut, 1961.
16. Sarasota Automation, Inc., VC1900 Operators Handbook, Software Issue V8, Sarasota, Florida, undated.
17. Dominic Zaal, Traffic Law Enforcement: A Review of the Literature, Report Number 53, Monash University Accident Research Centre, Clayton, Victoria, Australia, April 1994.
18. Federal Highway Administration, FHWA Study Tour for Speed Management and Enforcement Technology, Washington, DC, February 1996.
19. R.F. Crowther and R.P. Shumate, Sampling Design for Fixed-Point Speed Measurements, Project No. R-l 8, Traffic Institute, Northwestern University, Evanston, Illinois, 1960.
20. Fred R. Hanscom, An Assessment of Speed Measurement Techniques and Practices: A Literature Review, Federal Highway Administration, Washington, DC, 1983.
21. M. R. Parker, Jr., Comparison of Speed Zoning Procedures and Their Effective-ness, Final Report, prepared for the Michigan Department of Transportation, Lansing, Michigan, September 1992.
22. EugeneV.Avery,―EffectofRaisingSpeedLimitsonUrbanArterialStreets,‖ Highway Research Board Bulletin 244, Washington, DC, 1960.
23 Curt M. Elmberg, Effects of Speed Zoning in Suburban Areas, Report No. 9, Joint Highway Research Project, Purdue University, Lafayette, Indiana, June 1960.
24. T. Ogawa, E. S. Fisher, and J. C. Oppenlander, ―Driver Behavior Study-Influence of Speed Limits on Spot Speed Characteristics in a Series of Contiguous Rural and Urban Areas, ‖Highway Research Board Bulletin 347, Washington, DC, 1962.
25. Robert R. Roberts,―The Influence of Speed Limits on Urban Speed Distribution Parameters‖ Traffic Engineering, Vol. 38, No. 3, Institute of Traffic Engineers, Washington, DC, December 1967.
26. S.Spitz,―SpeedVersusSpeedLimitsinCaliforniaCities,‖ITEJournal,Vol.54, No. 4, Institute of Transportation Engineers, Washington, DC, May 1984.
27. Conrad L. Dudek and Gerald L. Ullman, Speed Zoning and Control, Research Report 334-l F, Texas Transportation Institute, College Station, Texas, September 1986.
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28. W. L. Kessler, ―The Effect of Speed Zone Modifications Occasioned by the Illinois Speed Law, ‖Traffic Engineering, Vol. 29, No. 10, Institute of Traffic Engineers, Washington, DC, July 1959.
29. Neilon J. Rowan and Charles J. Keese, ―A Study of Factors Influencing Traffic Speed, ‖Highway Research Board Bulletin 347, Washington, DC, 1962.
30. Traffic Engineering Operations and Safety Unit, Special Speed Study, Publication No. 2053, Massachusetts Department of Public Works, Boston, Massachusetts, 1966.
31. Minnesota Department of Transportation, ―Experimental Studies,‖ Attachment 9, Transmittal Letter from R. J. McDonald to Jim Barnett, St. Paul, Minnesota, May 17, 1984.
32. Washington State Department of Transportation, ―Speed Zoning Before and After Study,‖ Transmittal Letter from Wayne T. Gruen to Jim Barnett, Olympia, Washington, July 11, 1984.
33. Michigan Department of Transportation, ―Before and After Speed Studies,‖ Exhibit 9 enclosed with the AASHTO Survey of Speed Zoning Practices, Lansing, Michigan, June 1984.
34. James O‘Day, ―Accident Data Quality,‖ NCHRP Synthesis 792, Transportation Research Board, Washington, DC, 1993.
35. L. I. Griffin, Three Procedures for Evaluating Highway Safety Improvement Programs, Texas Transportation Institute, College Station, Texas, October 29, 1982.
36. L. I. Griffin, A Systematic Framework for Analyzing Categorical, Before-and-After Data, Texas Transportation Institute, College Station, Texas, April 1989.
37. L. I. Griffin, Using the Before and After Design With Yoked Comparisons to Estimate the Effectiveness of Accident Countermeasures Implemented at Multiple Treatment Locations, Texas Transportation Institute, College Station, Texas, May 1990.
38. 0. J. Pendleton, Application of New Accident Analysis Methodologies-Volume 7 - Genera/ Methodology, Publication No. FHWA-RD-90-091, Federal Highway Administration, Washington, DC, September 1991.
39. L. I. Griffin, Using Before and After Data to Estimate the Effectiveness of Accident Countermeasures Implemented at Several Treatment Sites, Texas Transportation Institute, College Station, Texas, December 1989.
40. Ezra Hauer, ―Should Stop Yield? Matters of Method in Safety Research,‖ ITE Journal, Vol. 61, No. 9, Institute of Transportation Engineers, Washington, DC, September 1991.
41. D. M. Wenger, Effects of Revising Urban Speed Limits, St. Paul Department of Public Works, St. Paul, Minnesota, June 1960.
42. P. T. McCoy, B. A. Moen, G. Pesti, and M. Moussavi, Evaluation of Lower Speed Limits on Urban Highways, Research Report TRP-02-26-92, University of Nebraska, Lincoln, Nebraska, May 1993.
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43. J. A. McKnight and T. M. Klein, ―Relationship of 65-mph Limit to Speeds and Fatal Accidents,‖ Transportation Research Record 7287, Transportation Research Board, Washington, DC, 1990.
44. M. Freedman and J. R. Esterlitz, ―Effect of the 65-mph Speed Limit on Speeds in Three States,‖ Transportation Research Record 7287, Transportation Reearch Board, Washington, DC, 1990.
45. G. Chang and J. F. Paniati, ―Effects of 65-mph Speed Limit on Traffic Safety,‖ Journal of Transportation Engineering, Vol. 116, No. 2, American Society of Civil Engineers, New York, New York, March/April 1990.
46. Cirillo, J.A. (1968). Interstate System Accident Research Study II, Interim Report II, Bureau of Public Roads
47. Dornsife, C. – (July 2009): ―Speed Limits – When and Why the 85th Percentile‖; Institute of Transportation Engineers, annual meeting presentation.
48. Dornsife, C. – (2001) "Montana Paradox – The Effects of No Daytime Speed Limits on Safety", National Motorists Association
49. Tigner, Samuel; Warren, Davey (August 1990): ―Driver Speed Behavior on US Streets and Highways‖; Institute of Transportation Engineers, annual meeting presentation.
50. Martin R. Parker & Associates, Inc., October 1992; Report No. FHWA-RD-92-084: “Accidents at the 58 experimental sites where speed limits were lowered increased by 5.4 percent.‖ (pg. 16)
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Richard Glen Colter
P.O. Box 11312
Pleasanton, CA 94588
925.202.7776 – This e-mail address is being protected from spambots. You need JavaScript enabled to view it.
UNITED STATES DISTRICT COURT
District of Nevada – Las Vegas
________________________________________
RICHARD GLEN COLTER, Petitioner/Plaintiff;
v.
Ray LaHood; Brian Sandoval; State of Nevada;
United States of America
Respondents/Defendants
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Case No. 2:11-cv-00630 Declaration Statement
The undersigned swears, affirms, and declares under penalty of perjury that the facts and statements made in the Memorandum of Points and Authorities are true and correct to the best of his abilities.
/s/RICHARD COLTER

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