Law

Who bulldozed the Torres farm labor camp and why?

Submitted: Feb 06, 2006

Felix Torres CEQA Scoping Request to Agencies
Feb. 6, 2006

From:

Lydia Miller, President
San Joaquin Raptor/Wildlife Rescue Center
(209) 723-9283, ph. & fax
raptorctr@bigvalley.net
P.O. Box 778
Merced, CA 95341

Steve Burke
Protect Our Water (POW)
(209) 523-1391, ph. & fax
sburke5@sbcglobal.net
3105 Yorkshire Lane
Modesto, CA 95350

Bryant Owens
Planada Association and Planada Community Development Corporation
(209) 769-0832
recall@mercednet.com
2683 South Plainsburg Road
Merced CA 95340-9550

To:

Robert Lewis Director
Merced County Planning and Economic Development
2222 M Street
Merced CA 95340
Phone:(209) 385-7654
via Fax (209) 726-1710

Board of Supervisors Merced County
2222 M Street
Merced CA 95340
Phone:(209) 385-7366
via Fax (209) 726-7977

Board of Commissioners
Housing Authority of Merced County
405 U Street
Merced CA 95340
Phone:(209) 722-3501
Fax (209) 722-0106

Sunne Wright McPeak Secretary
Business, Transportation & Housing Agency
980 9th Street, Suite 2450
Sacramento, CA 95814-2719
Phone (916) 323-5400
Fax: 916-323-5440

Judy Nevis Director
Housing & Community Development
1800 Third Street
Sacramento, CA 95814
Phone (916) 445-4775
Fax (916) 324-5107

Richard L. Friedman Acting Deputy Dir.
Division of Financial Assistance
Phone (916) 322-1560
Fax (916) 327-6660

Kim Dunbar Assistant Division Chief
Phone (916) 322-1560
Fax (916) 327-6660

Janet Marzolf, Section Chief

Asset Management & Compliance Section
Phone (916) 327-2896
Fax (916) 327-6660

Patrick Dyas Program Manager
Office of Migrant Services
Phone (916) 327-0942
Fax (916) 327-6660

Monday, February 06, 2006

Re: CEQA review of proposed new migrant housing in Planada (Merced County), Scope of Project, Analysis of alternatives to project, irregularity in NEPA analysis of environmental impacts; project incompatibility with current County General Plan; misappropriation of federal funding for migrant housing to construct low-income housing. Environmental Justice Abuse.

Ladies and Gentlemen:

We are greatly dissatisfied with and concerned over the actions of the Housing Authority of Merced, especially concerning the demolition of the Felix Torres Migrant Camp, and a documented agreement made with certain Merced county officials by Housing Authority Executive Director, Nick Benjamin in which the County of Merced purportedly required Housing Authority to relocate Planada Village in collaboration with SUDP zoning changes proposed by the County of Merced during the environmental review of Planada’s Community Specific Plan Update (Dec 2003).

As you all may certainly verify, the funding for the proposed renovation of the Felix Torres Camp, and funding for the demolition and replacement of Planada Village (asbestos) was individually encumbered in two separate OMS grant in year 2003. There was also a third grant awarded to the Housing Authority bringing the aggregated total for renovation of Planada Migrant camps to just over $10 million dollars.

Planada citizens were delighted with the concept of renovation of the existing camps, but were solidly in opposition to the idea of moving either camp further away from the community. .

The decision to combine these grants into a single ‘project’ seems to have been solely at the discretion of Mr. Nick Benjamin. [1] No satisfactory explanation was ever given to date as to why the Felix Torres camp could not be rebuilt on its original site. It is clear that Department of Housing and Community Development owns the structures of the Planada Village Camp and contracts with Housing Authority of Merced for the maintenance thereof, and it is also clear the Housing Authority owns the land, and both parcels were and are still zoned for the use of Migrant Housing.

Our contention is that CEQA review should have begun at that point at which Mr. Benjamin decided to move the existing camps to new locations, back in 2003. As a semi-autonomous State Agency, Housing Authority has lead agency status with regard to NEPA review of this proposed project, however, that autonomy does not supercede land use authority in Merced County when a proposed project requires a zoning change, or as in this case, a conditional use permit. (Migrant Housing is not an automatically granted land use on land zoned A-1 Agricultural, there are specific requirements of the County General Plan that must be met and approved, and that process requires public review and opportunity to comment under CEQA).

Mr. Benjamin’s decision to relocate the camp(s), was facilitated by the Central Valley Coalition for Affordable Housing (a non-profit organization formed by the Housing Authority of Merced in 1987), which secured a loan from (or through) Housing Authority to purchase alternate land for the construction of a proposed ‘combined’ migrant and year round camp.

Mr. Nick Benjamin at that time was both the Executive Director of Housing Authority, and the Secretary of Central Valley Coalition for Affordable Housing and it is believed that he had full authority to act on behalf of both organization’s boards with regard to the procurement of the specific 24-acre parcel on Gerard Avenue (the originally intended location to which Felix Torres camp was to be moved).

Public outcry and written opposition to the change in location of Felix Torres Camp presented to the County Board of Supervisors, stalled the project and lead to an elaborate ‘shell game’ of deed transfers and money laundering that culminated in Jan. with the recording of the sale of that parcel to Merced County C.E.O. Demetrios Tatum and his wife. This land sale and all its intermediary steps are currently under the investigation of the Merced County Grand Jury.

Mr. Benjamin is a person who wears many hats in Merced County. Beside those previously mentioned, he also holds a position on the board of the Community Action Agency (a quasi-governmental non-profit agency whose funding, such as Community Development Block grants, is directly controlled by the Merced County Board of Supervisors). Mr. Benjamin also sits on the Workforce Investment Board, (established by statute in 2001 and whose members are appointed by the Merced County Board of Supervisors).

Mr. Benjamin has collaborated extensively with Mr. Rudy Buendia, the director of FirmBuild, (a non-profit corporation involved with other projects in Planada such as the Bear Creek Village) for many years. Mr. Buendia currently is appointed as a Commissioner of the Housing Authority of Merced’s Board of Commissioners (appointed by the District Supervisor for district 1 which includes Planada.) Mr. Buendia also hold an appointed position on the Merced County Planning Commission as a Commissioner (also appointed by the District 1 Supervisor)

Mr. Buendia seems to be in the enviable position of sitting as a voting member of the ‘lead agency’ for the NEPA approval of the proposed new Felix Torres Project, and as an advisor to the ‘lead agency’ for the CEQA review of this same project. Additionally FirmBuild may be involved in the eventual reconstruction of the Felix Torres Camp. Consequently the public has no clear or speedy means of determining whether or not any other inappropriate financial aggrandizement may occur through the eventual release of these encumbered OMS grant funds.

The normal checks and balances, which would preclude such conflicts of interest, are demonstrably absent in a rural setting such as Merced County where one person can wear so many hats simultaneously.

There seems to be a great deal of overlap in the funding streams coming into Merced County through the Department of Financial Assistance of the Department of Housing and Community Development. It is clear to these commentators that the restrictions on the beneficiaries of grant funding through specific programs such as Joseph C. Serna Farmworker housing (which represents about one third of the grant funding for this proposed project) may be effectively circumvented under the aegis of Mr. Benjamin’s proposal.

The Predevelopment Loan Program used to demolish the Felix Torres Camp may have been used in violation of CEQA in that no environmental review was even contemplated for that aspect of the project until during the actual demolition when the commentators did a site inspection and discovered evidence of endangered and/or protected species on site, and brought such information to the attention of Housing Authority. The public will never know whether or not there was illegal ‘take’ of endangered/protected species during the demolition of the Felix Torres Camp buildings, but what is clear from written communications with the Housing Authority is their stated contention was that the contractor would have been liable for the illegal ‘take’.

This demonstrably limited understanding of the Housing Authority’s responsibility for complying with the laws of the State of California and those of the United States does not inspire confidence that this project is proceeding according to established standards of environmental review.

Having brought this situation to the attention of the grantors, it should not remain incumbent upon the public to force an internal audit of this morass; it would seem incumbent on the director of the Department of Financial Assistance or his superiors to follow up on a complaint such as this.

We clearly see and understand the financial incentive Housing Authority has in cooperating with the parties financially interested in securing the zoning changes proposed in the 2003 Planada Community Plan Update; the Planada Village was to be replaced with a zone for commercial development along Hwy 140, and the Felix Torres Camp is directly adjacent to a riparian waterway (Miles Creek) and is being actively sought for the residential development capabilities afforded by the proposed change to low density residential zoning.

Both parcels would appreciate multiple orders of magnitude in value and would represent an irresistible temptation to seek less valuable real estate on which to build replacement migrant housing with the already encumbered grant funding.

While we can appreciate the considerable potential financial benefit of this collaboration to Housing Authority, we can also clearly see conflicts with other applicable land use authorities of the State of California including tenets of the Cortese-Knox- Hertzberg Act of 2000, as it would apply to the provision of municipal services outside of an established SUDP; specific proscriptions under CEQA disallowing a public entity to select a preferred alternative based solely upon the affordability of the land in question; the ongoing environmental injustice being inflicted upon the displaced population; not to mention the near impossibility of evaluating the compliance of this proposed project or any like it with the hopelessly outdated Merced County General Plan.

The community has already suffered the deprivation of the 88 Felix Torres Camp units and has born for three years the added congestion of accommodating those returning migrants in the sparsely available low and very low-income housing. The local economy has suffered commensurately lack of workforce during crucial times of harvest during the last three years.

The public was informed by Housing Authority representatives that the decision to close and demolish Felix Torres Camp was a directive of the State of California, and under the Public Records Act we wish to inspect any written document corroborating that assertion, if such could be identified in the files of any of the above parties to whom this letter is addressed. It is our belief that the decision to close and then demolish Felix Torres Camp was rather retaliatory and punitive of the public who voiced opposition to the political and residential development interests who were clearly the intended beneficiaries of this collaboration.

The citizens of Planada participated in the federal NEPA review of this proposed project. Written comments regarding the draft EA (Environmental Assessment) have not been acknowledged or answered and the Housing Authority acting as its own lead agency has approved their NEPA review. We attach a copy[2] of the submitted comments to assist you in determining whether substantive information has been overlooked in the EA by the ‘Lead Agency’(Housing Authority of Merced County).

Irrespective of the relative weight given to public comment during the NEPA environmental review process, the Housing Authority has now contacted the Merced County Planning Department seeking CEQA review and approval of this disputed project.

CEQA requires that the Lead Agency (Merced County) examine all feasible alternatives to the proposed project, and that the scope of that analysis include all issues identified in the earliest initial study, including, in particular, the intent of the original funding source, and the setting in which those particular funds were encumbered. By completing the NEPA analysis of this project independently from the CEQA review, the Housing Authority has sought to limit the analysis of the environmental impact solely to their preferred alternative. This is both subtle and inappropriate.

Plaintiffs who sued Merced County over the inadequacy of the 2003 Planada Community Plan on behalf of those migrants displaced by the actions of the Housing Authority (closing the Felix Torres Camp in 2003 and demolishing it in 2005) have not abandoned their suit. In fact that suit is currently in 5th Appellate Court in Fresno.

Merced County’s recently disclosed plans to radically expand the SUDP boundary of Planada as part of a County General Plan Update, seek to circumvent and moot the efforts of the appellants.

There is clearly a nexus of growth pressures, lack of sewer capacity, declining economic opportunity, and poverty in Planada that demand a comprehensive environmental analysis. The migrant housing to be built with this funding (encumbered since 2003) is certainly a seminal component of Planada’s housing supply, and crucial in that it will be supportive of the actual agricultural labor force indigenous to the community.

Unfortunately, though, it has come to light that the Housing Authority has no intention of limiting residents of the proposed new Felix Torres Camp to farm workers and their dependents. The overarching intent of providing low-income housing in Merced County on which so many other government subsidized funding streams reaching Merced County tend to depend, would seem to provide an incentive for County Planning to limit the CEQA review of this project. We hope this scrutiny will persuade Housing Authority Executive Director Nick Benjamin and County Planning to honor the actual legislative intent of the OMS grant funding. We wish to somehow ensure that the proposed housing is actually going to replace both the structures and the context that were demolished at the original Felix Torres site. The conclusions presented to the public in the Housing Authority’s draft EA do not inspire confidence that the public’s expectations for this project will be realized.

It seems clear that more specific guidance from the State Agency with direct control over the expenditure of these funds is necessary. Without intending to jeopardize the funding for migrant housing in Planada, may we suggest that Housing Authority is within their authority to rebuild the Felix Torres Camp on its original site, and can do so without abusing Merced County’s land use authority or the public’s trust.

If, as we believe the County of Merced is the land use authority and Lead Agency for the CEQA review of the Housing Authority proposed project on newly acquired property, then we request and require that the Scope of this project be broadened to include the original site of the Felix Torres Camp and all of the previous public involvement and comment on this proposal.

Sincerely,

Lydia M. Miller – President Steve Burke,

San Joaquin Raptor/Wildlife Rescue Center Protect Our Water

Bryant Owens- Chairman

Planada Community Development Co.

Attachment: Draft EA Comments-2005

--------------------------------------------------------------------------------

[1] Housing Authority Board of Commissioner minutes

[2] Comments on Draft Environmental Assessment 2005

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The politics of death in Merced

Submitted: Jan 29, 2006

The newspaper coverage of the tragic death of Greg Gomez, 20, of Merced, has from the beginning raised more questions than it has answered. With each succeeding article, the story gets more obscene.

A Badlands reader suggested that without putting all the official reports of the matter together, end-to-end, it is impossible to tell what actually happened. However, in politically sensitive matters including large private or public institutions, police reports do not always make things clearer.

The best we can do it put the timeline of newspaper coverage of the event in some kind of order and raise questions we believe ought to be asked.

The Modesto Bee reported at 4:15 a.m. on Dec. 20 that Gomez was hit by a car driven by UC Merced student, Antony Jay Ducray, 18, of Los Angeles, about 11:30 p.m., according to a California Highway Patrol report. He was taken to Mercy Medical Center Merced.

CHP Sgt. Sam Samra said the accident happened about 2,500 feet west of Lake Road, near the UC Merced campus. Gomez was wearing dark clothes and walking in the road; there are no streetlights in the area, according to the CHP. Though it wasn't raining, it was cloudy and the streets were wet, Samra said.

Ducray, who was driving about 50 miles per hour, did not see Gomez walking in the road before his car struck him, the CHP reported.

Gomez was thrown into Ducray's windshield, and suffered major injuries. Ducray was not hurt, and a passenger in his car, 18-year-old Daniel Joseph Wilson of Rancho Bernardo, suffered minor cuts to his left hand, the CHP reported.
No one was arrested and the CHP said speeding and alcohol do not appear to have been factors in the accident. The collision remains under investigation.

On Dec. 21, Merced Sun-Star writer Rosalio Ahumada reported that Gomez died about 23 hours after he was struck by Ducray’s car. We got more details of the case.

The UC Merced student was not arrested.

Speeding and driving under the influence do not appear to be factors, the report stated, but the car accident is still under investigation, Ahumada wrote.

Evidently Ducray was tested clean for alcohol and drugs.

Ducray, a UC Merced student from Los Angeles, was driving a 2000 Toyota Corolla westbound on Bellevue Road at an approximate speed of 50 mph when the car struck Gomez.

Gomez was reported to have been wearing dark clothing and walking “on a small paved portion of the shoulder of the road. The road has a larger dirt and gravel portion of the road shoulder.” There are no streetlights on that country road.

Samra, the CHP officer on the scene, told Ahumada, “the road was wet and it was cloudy, but officers reported it was not raining when the accident occurred and there was not any fog or other visual impairments.”

The coroner’s office said it would do an autopsy to establish the cause of death on Thursday of that week. We saw no follow-up on that story but the Christmas weekend was coming and the cause of death could not have been more than the listing of injuries sustained from being hit by a car.

The first question that arises is why isn’t this story being covered by the Sun-Star’s veteran police reporter, Mike De La Cruz? The first report from the Modesto Bee has no byline. The second story was covered by the reporter on the UC Merced beat, at least until shortly after this story. Since January 16, another reporter seems to have taken over UC Merced coverage.

How could the CHP officer know the students were driving about 50 miles an hour? Was he on the scene before the accident? Were there witnesses? Is there electronic speed monitoring equipment on that stretch of road?

The story disappeared for a month only to return this week.

On Tuesday, Ahumada’s apparent successor on the UC Merced beat, Janet Pak, informed us:

University of California, Merced, students who want to stay downtown or enjoy a movie late at night won't have to worry about transportation.

A new shuttle service called "Nite Cat" will run every hour from 10 p.m. to 2 a.m. on Friday and Saturday, said UC Merced spokeswoman Ana Nelson Shaw.

"It helps them be more connected with the community," she said. "A lot of students don't have a car.

"It provides them with a new option to go see a movie that ends late at night or to go eat out at one of the dining locations or see friends who live off campus."

Riggs Ambulance Service, presumably the same ambulance service that took Gomez to the hospital (there is no other in Merced), sponsored the shuttle, “paying $20,000 for the van, fuel and labor costs.” Sounds pretty cheap to me. I wondered if a farm labor contractor could get a van, driver, fuel and maintenance at that price for eight, 20-mile roundtrips a week.

Nite Cat would also prevent people from driving back in poor weather conditions.

"It's not exactly a great drive," he said. "It's dark, narrow and foggy."

There is no evidence Pak even asked if the shuttle might also be connected to Gomez’ death, which would have raised the issue protecting the public against UC Merced students rather than simply protecting UC Merced students from themselves.

At this point, the Badlands editorial board began to study a few UC Merced police reports.

Police Calls...UC Merced calls...Last Updated: January 27, 2006, 07:45:32 AM PST
http://www.mercedsunstar.com/local/policecalls/story/11736459p-12459406c.html
The UC Merced Police Department responded to three calls on Wednesday.
WEDNESDAY
12:35 a.m. -- Officer took student report of a possible burglary.
12:34 a.m. -- Officer checked a suspicious vehicle parked in the staff parking lot.
5:20 a.m. -- Driver verbally warned at a traffic stop at Bellevue and Lake roads.

Police Calls...UC Merced calls
Last Updated: January 24, 2006, 08:05:33 AM PST
http://www.mercedsunstar.com/local/policecalls/story/11724321p-12448098c.html

Saturday
11:05 p.m. -- Driver issued a citation for failing to stop at a crosswalk in the student parking lot by Tulare Hall
10:08 p.m. -- Driver given a verbal warning for failing to stop at a crosswalk on Scholars Lane and Emigrant Pass.
12:49 a.m. -- Driver given a verbal warning for failure to stop at a crossing walk on Scholars Lane and Mammoth Lakes Road.

FRIDAY
10:34 p.m. -- Citation issued for failure to stop at crosswalk on Lake Road south of main entrance.
10:08 p.m. -- Citation issued for failure to stop at crosswalk on Scholars Road.

Last Updated: January 10, 2006, 06:45:36 AM PST
http://www.mercedsunstar.com/local/policecalls/story/11672477p-12400494c.html

SATURDAY
3:33 p.m. --Verbal warning issued for failure to stop at a posted stop sign at Scholars and Emigrants Pass.

UC MERCED CALLS
The UC Merced Police Department responded to 9 calls Friday, Saturday, and Sunday.

SUNDAY
1:22 p.m. -- Driver issued a verbal warning near front entrance to Lake Yosemite.
11:42 a.m. -- Officers assist two male adults stuck in an elevator.

SATURDAY
11:50 p.m. -- Driver of a suspicious vehicle parked in the residential parking lot given a verbal warning.
3:33 p.m. --Verbal warning issued for failure to stop at a posted stop sign at Scholars and Emigrants Pass.
3:01 p.m. --Driver issued a verbal warning during a traffic stop at Bellevue and Lake roads.
2:31 p.m. -- Driver issued a verbal warning during a traffic stop on Scholars Lane at the dining hall.
Driver issued a verbal warning during a traffic stop at Lane and Trovare roads.

FRIDAY
7:37 p.m. -- An electrical fire smell in the east wing of the library determined no fire risk.
8:16 a.m. -- Driver of a vehicle blocking the emergency exit found and vehicle removed.

Last Updated: December 10, 2005, 07:21:14 AM PST
http://www.mercedsun-star.com/local/policecalls/story/11576675p-12309523c.html

UC MERCED CALLS
The UC Merced Police Department responded to 6 calls Thursday and Wednesday

Thursday
5:08 p.m. -- Report of a noninjury hit-and-run accident that occurred sometime in the day in the Lake parking lot.

Thursday
6:33 p.m. -- Assisted a disabled motorist with a flat tire.
5:08 p.m. -- Report of a noninjury hit-and-run accident that occurred sometime in the day in the Lake parking lot.

Wednesday
11:32 p.m. -- Two students in the construction area given a verbal warning.
9:53 p.m. -- Assisted a UC resident assistant in student housing.
6:29 p.m. -- Escorted a staff member to the parking lot.
6:27 p.m. -- Conducted a student welfare check at the request of a family member.

Last Updated: November 24, 2005, 06:50:36 AM PST
http://www.mercedsun-star.com/local/policecalls/story/11517885p-12254904c.html

5:08 p.m. -- Report of a noninjury hit-and-run accident that occurred sometime in the day in the Lake parking lot.

UC MERCED CALLS

The UC Merced Police Department responded to 3 calls on Tuesday.
10:53 a.m. -- Traffic stop on Lake Road at Bellevue Road. Driver was warned.
4:53 p.m. -- Noninjury accident reported at Ranchers and Lake Road.
4:18 p.m. -- Reports of students barbecuing on campus next to dining commons.

Last Updated: October 20, 2005, 06:45:34 AM PDT
http://www.mercedsun-star.com/local/policecalls/story/11373686p-12120637c.html

9 a.m. -- A hit-and-run accident reported in the Lake parking lot. The responsible party returned to the scene.

Badlands editors, after daring to post this police description of the vehicular situation out at the UC Merced campus, got their money down on the question of whether the public would ever see another UC Merced police log.

Lulu from the Badlands Religion desk, who tipples, complained that UC Merced had never offered to pick her up and take her downtown for Blues night and bring her back home all safe and sound, soul full of throbbing bass guitar.

D.A. May Have Served Alcohol to Underage Drinker Who Died
The Novel and The Tape
http://www.mercedsunstar.com/local/story/11741563p-12463552c.htm

Saturday Sun-Star readers encountered a novel of 3,288 words in their newspapers and an accompanying audiotape on the newspaper’s website, concerning a political tangent associated with this tragedy. The story would not have suffered at all if a regular police reporter had done it in a few hundred words, something like:

Merced County District Attorney Gordon Spencer served drinks at the Merced Country Club for an employee Christmas party attended by Greg Gomez. Gomez, 20, later died as the result of being hit by a car driven by UC Merced student Antony Jay Ducray, 18, of Los Angeles. Three hours after Gomez was admitted to Mercy Medical Center, a test revealed a .245 blood alcohol content, about three times the legal limit for driving a car. Gomez was on foot when Ducray’s vehicle hit him.

Spencer said he tended bar at the party for about an hour until the employee-guests went to dinner. He added that he left the party four hours before Gomez was struck by the UC Merced student’s car as he was walking on the side of Bellevue Road .

Spencer explained he had an agreement with three managers at the country club that they were responsible for checking IDs. He said it is possible he served Gomez but did not serve anyone as drunk as Gomez was reported to have been three hours after he was hit.

Chris Collins, one of the Sun-Star’s political reporters, wrote the 3,288-word novel. Collins appears to believe that good district attorneys grow on grape vines or almond trees (the same place they grow good cops) or are as rapidly multiplying in Merced County as his celebrity-of-the-week Greg Hostetler’s housing products. This indescribable travesty of journalism, complete with tape selections, is available at http://www.mercedsunstar.com/local/story/11741563p-12463552c.html. It comes off, whether intentionally or not, as one of the most blatant political hatchet jobs in the paper’s dismal history of political coverage. But it is also, fundamentally, something else: a distraction from who killed whom.

UC bobcatflaksters must have danced on their monitors when this novel was published. People will be thinking about Spencer for days, weeks, forgetting who killed whom, all those fraudulent pay packages for top UC administrators and the new generation of nuclear weapons to be built at UC’s two national laboratories of WMDs.

Other evidence that it was some kind of political hatchet job or a PR diversion is that Collins never shares with his readers who it was who told him Spencer was serving drinks at a private country club employees' party. Nor, in the midst of nothing but a political story around manslaughter, does he ever mention that Spencer has announced his retirement. Nor does he ever list, in this political story about manslaughter, either Spencer’s political friends or his enemies.

Jonathan Arons, a San Francisco attorney who specializes in legal ethics, said Spencer had entered a "very gray" area ethically., Collins wrote, 2,500 words into his masterpiece.

Who might the deep, terribly obscure Arons be?

The only guy in the Badlands organization who took the bet Gomez v. Spencer would be studied in Torts courses by future law students pondering the mysteries of causality was Bobo. Bobo’s in sports.

Compared to the fact of his death, did it matter at all that Gomez was 20 instead of 21? If a 90-year-old senile escapee from a rest home in a dark housecoat on a black walker had been in that place at that time, would she have fared any better than Gomez or a Labrador Retriever? Did it matter that the district attorney, doing a volunteer stint as a bartender for his club’s employee Christmas party, said he wouldn’t deny he might have served Gomez a drink four hours before he was struck by the UC Merced student’s car?

No.

Spencer’s suggestion that there was something called personal responsibility poured gasoline on Collins’ passion to play the political blame game with a tragic mystery that could not be reduced to gotcha without violating common decency.

Why was Gomez, drunk, on foot, two miles from the country club at 11:30 p.m.? It must have been the DA’s fault.

Wrong.

There is another, grimmer possibility that would not have come to light without Collins’ reckless novel. With perhaps better information than the public has, Spencer seemed to suggest at one point on the tape that Gomez had thrown himself into the car. If Collins had not been so intent on lynching Spencer, he might have heard that warning. Having done this stupid thing, he raised the issue of suicide – more doubt and misery for the family he describes with such saccharine bathos in the last several hundred words of his opus. Adn what of the misery of the driver and his passenger?

Forget them: we must have the novel of blame, which will soothe all wounds.

Wrong.

Do Collins’ editors have a shred of common sense?

Bill Hatch

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Wobbly three-legged stool

Submitted: Jan 20, 2006

The three-legged stool

Viewed from an ecological perspective, rooted in the environment of the San Joaquin Valley of California, politically affairs this week seem to be perched on a very wobbly three-legged stool.

The short, skinny leg

When (funded) “value-free facilitators” begin showing up in your community, it is probably time to count the silverware or, from an ecological perspective, inventory the environmental quality of your neighborhood. We have an area called “South” Merced, where, traditionally, minority groups have lived south of the tracks and the highway. Through the years, the city has done a pretty decent job of hustling federal funds to repair and restore old single-family houses and build some multi-family apartment complexes. The county housing authority is located there. However, the area has almost no business, at least business useful to the residents, like a decent shopping center with a supermarket. In recent months, the city has proposed the development of a specific urban development plan for the neighborhood, appointed a citizen’s advisory commission and has engaging consultants to draw up a land-use plan.

What the area needs is development that pays its way for the schools it overcrowds, a decent shopping center with a supermarket, and more employment. A dark thought is that it will the area in which the city will fulfill its low-income housing quotient required to keep its general plan correct. Several new low-income complexes have already been built and more are already in the planning pipeline.

“We’re just glad to be here to facilitate this process,” said the value-free facilitator with a Crash Davis (“Bull Durham”) grasp of cliché, before a group of about 40 at a meeting two weeks ago. A number in the audience were government officials, including three city council members (including the mayor) and two supervisors. A city planner led a significant portion of the meeting.

An elderly resident complained about the governing vocabulary. “My tax bill doesn’t tell me I live in North or South Merced,” she said. “It says Merced. All we want is to have the same facilities throughout Merced.” She described 24 empty streetlights on her street. Later, an officious city councilman told the group those streetlights were in the county, not the city, so the city wasn’t responsible.

“There is something ignorant about this whole thing,” the resident commented. “Let’s use our intelligence and forget this North/South Merced.”

The value-free facilitator and the city planner went right on calling it South Merced, referring to my neighborhood as “Middle Merced.” North Merced is where the growth, induced by the arrival of UC Merced, is rapidly doubling the size of the city.

One of the neighborhood’s present dilemmas is what to do with Carl Pollard, an African-American resident of the neighborhood who, after losing six campaigns for the city council, was recently appointed to it. Less than a month after the appointment, he was charged with driving a car without insurance, with an open container of alcohol and some amount of marijuana in it. He has been fired from his realtor job. If convicted, presumably he would lose his council seat. Pollard led an invocation at the beginning of the meeting.

There are better people than Pollard, a political accident that has happened, trying to work for a decent level of services (at least one supermarket south of the tracks, for example), as development that does not pay its way rages to the north and more “low-income” housing development – horribly impacting schools in the south – is planned for the neighborhood. Perhaps, if they organize themselves, beginning by believing almost nothing of what city and county officials tell them, they will have a prayer the Rev. Pollard shall not lead.

“Value-free community organizing” facilitated from the top down by University of California personnel is illusory. What has worked in a modest way in the neighborhood has been volunteer crime watches that have existed for years. What will make things more miserable is crowding in more low-income residents to satisfy regional low-income housing mandates into an area with a chronically low level of services and usable commercial enterprises.

The fat, middle leg

A year ago, the Sacramento Bee did a series of articles exposing a classic situation of corporate power in diary processing. Hilmar Cheese had been polluting surface and groundwater near its site for years. The San Joaquin Regional Water Quality Control Board had been effectively bought off by the corporation. Publicly embarrassed, the board levied a $4-million fine against Hilmar.

After the state Water Resources Board in November refused Hilmar Cheese’s proposal to pay a fraction of the fine the regional water quality board had levied against it for polluting its area with huge quantities of wastewater, the federal EPA approved a test deep-injection well this week. Presumably, if the engineers on this project are more skillful than on the plant’s last techno-fix, the test will be successful, paving the way for injection of Hilmar Cheese’s 2-to-3 million gallons a day of waste water more than 3,000 feet below the Valley surface.

Meanwhile Hilmar’s corporate lawyers and water board lawyers continue to negotiate a settlement of the fine. The board should hear a new proposal by March, Catherine George, water board attorney, said today.

Vance Kennedy, a retired hydrologist from Modesto, told me yesterday it was as “done deal:” EPA has the power to override the state water board’s decision, on the grounds that deep injection is out of the state board’s jurisdiction over surface and ground water.” George confirmed Kennedy’s report.

“Ground water” refers to the aquifers several hundred feet down from which well water is drawn for domestic and agricultural use.

Kennedy said the EPA is using the analogy of water injection into oil and gas wells to force the products to the surface from beneath impenetrable layers. Hilmar, he said, is supposed to have a 100-foot thick layer of shale deep down, presumably impermeable.

He repeated the point he made in several hearings on the project: that water is incompressible and will move laterally, for miles, until it begins to push salty water up into groundwater aquifers lying above “impenetrable” layers.

“The sad thing is that salty water elsewhere may not show up for years or decades,” he said. He added it might not ever be possible to trace salt-water intrusion into wells back to the lateral pressure caused by Hilmar’s deep injection system.

Worse, Kennedy said, it’s a precedent for the San Joaquin Valley. Every wastewater facility from Redding to Bakersfield will be looking at this technology. EPA approved a number of wastewater deep-injection wells in Florida, providing another decade of rapid growth. The Sierra Club sued in February 2005, citing massive ecological damage. Kennedy said he’d been told Miami effluent has been traced as far away as Bermuda.

This middle leg is overweening corporate power to dominate surrounding communities and destroy their environments. Merced, the second largest dairy county in the nation, is afflicted with Big Dairy, an extremely powerful lobby from county to country devoted to the propositions: Bigger and More. The best comment I’ve heard on the economic philosophy of Big Dairy was from a small dairyman who said: when someday milk is so over-produced it isn’t worth a penny, some dairyman will say it’s a good day to buy cows.

The Hilmar Cheese deal reveals a tendency in our economy toward outright corporate ownership of government. In the lexicon of American politics exists the phrase, which covers the situation so well a book about the political career of a former Merced congressman, Tony Coelho, is titled, “Honest Graft.”

This sort of corruption tends to spiral out of control, as in the present case of the Abramoff affair. Some economists argue that eventually, the power of special interests devours the nation’s substance for the gains of very few, if gigantic firms. In the case of US transnational corporations, the approach has been to cause deep structural unemployment of domestic industrial workers and devour other nations’ substance at very low wages. The process is well advanced in the US, particularly in California, where the state budget is beginning to resemble the budget of Third World nations like Argentina and Chile, raped by utility and development corporations and thrown into the tender claws of Wall Street for the foreseeable future.

The impact of the EPA decision may go far beyond Hilmar.

The housing development industry is a radical example of the domination of sheer financial interest over the construction of subdivisions containing rows of three or four “housing products.” Everything about the structure of this “industry,” from the elaborate system of subcontracting to the pittance the state requires it pay for the schools it overcrowds, is designed to protect the developer investor from any public liability. In employs mobs of illegal aliens, heretofore always called “unskilled farmworkers,” to do highly skilled construction work for well below union wages. It has bought wholesale political and legal attacks on state and federal environmental law. It is pricing out farmers on agricultural land while making large rural landowners who sell for development rich. Development in states like California and Florida has made a mockery of any concept of urban planning.

If the deep-injection fix takes off in the Central Valley, residents and farmers will be the losers but the corporations will be the winners in the near term, which is their only time frame. Meanwhile, laws that haven’t already been written will be written to limit or exempt them from liability. But, one might object, wastewater facilities likely to jump on this fix are public entities. They are public entities driven every step of the way into surface and groundwater pollution by private development corporations. The system to protect the genuinely public interest is broken, corrupted, for sale, less and less often these days with even a pretence of being other than for sale. Growing numbers of rightwing politicians aggressively promote the ideology that public policy ought to be for sale to the highest bidder. Up and down the ranks of the Republican Party, this is considered to be “the hard, right decision.”

The local glaring, daily example is the loss of rights of existing residents of a region to the same quality of life they had before a UC campus was located in their county and development took off, running roughshod over law, regulation and resources. Against the local land-use authorities’ power to reject projects under the California Environmental Quality Act is the constant drum of developer propaganda: “Growth is inevitable.” You hear it on street corners out of the mouths of people who were once citizens but now passively accept the role of being mere subjects of alien, hostile government. It makes you wonder what else could have been done with all the money it took to convince Californians of this suicidal proposition that has, in 30 years, distorted this state out of all self-recognition, that has replaced, for private gain, a state composed of cities, towns, communities with abundant natural resources and rural economies of hope, with a slurbocracy of mere subjects.

Hilmar Cheese, “largest cheese plant in the world,” is using demonstrably bad Florida technology because its industry largely owns its regulators. Not that the EPA needed much encouragement to worsen the environment of the San Joaquin Valley. Its present administrator started his scientific career at Litton Bionetics, one of the nation’s leading developers of chemical and biological weapons: he is the perfect Bush fox for the EPA henhouse.

But, in our terribly contemporary political culture here in the 18th Congressional District, in Rep. Dennis Cardoza, Shrimp Slayer-Merced, we have the epitome of the emerging one-party state, under the relentless pressure of special interest corruption. Cardoza is referred to locally simply as the south end of O Pomboza, the northern end being Rep. RichPAC Pombo, Buffalo Slayer-Tracy. Pombo is an exemplary modern American fascist, complete with his corruption problems linked to Abramoff, who he denies knowing, and his strong penchant for breaking laws he can’t change, like the Endangered Species Act.

The EPA decision leaves people to believe – and they are definitely meant to believe – they are powerless to stop this level of pollution, corporate irresponsibility and corruption, because the corporations, the Pomboza and the regulating agencies don’t give a damn about the people and believe they exist to do the bidding of the least responsible whim of the corporations who effectively own their own regulating agencies. Some political theorists call this form of government corporatist and describe it as a precursor to fascism. We will content ourselves with the homey old American expression, “honest graft,” well established in government during the McKinley administration, apparently the guide to all domestic politics in the W. administration.

There are residual American political tactics against such corruption. People concerned about this well and its implications for the future of groundwater in the Central Valley ought to consider starting a national boycott against Hilmar Cheese products. A boycott has the old-fashioned charm of asserting the dignity of human communities in the face of inhuman corporate power. People might find it a refreshing diversion from being oppressed and depressed by decisions affecting their lives over which they have no control.

The long, weird leg

A preface is required to begin to describe the last leg of the current stool. I’ve chosen a passage from Douglas Dowd’s book on Thorstein Veblen, an American economist who wrote this during the McKinley administration, at the turn of the 20th century:

“Business interests urge an aggressive national policy and businessmen direct it. Such a policy is warlike as well as patriotic. The direct cultural value of a warlike business policy is unequivocal. It makes for a conservative animus on the part of the populace. During war time, and within the military organization at all times, under martial law, civil rights are in abeyance; and the more warfare and armament the more abeyance … a military organization is a servile organization. Insubordination is the deadly sin. (The Theory of Business Enterprise, Thorstein Veblen, 1904, p. 391)

What is true of those directly involved in the military applies also to the civilian population in significant degree:

“They learn to think in warlike terms of rank, authority, and subordination, and so grow progressively more patient of encroachments upon their civil rights … At the same stroke they (patriotic ideals) direct the popular interest to other, nobler institutionally less hazardous matters than the unequal distribution of wealth or of creature comfort. (Ibid. p. 393)

But for those who might see this as a triumph of business enterprise over the threat of social change led by workers, it is turned by Veblen into a hollow triumph. For, if the discipline and values of the warlike and patriotic society may “correct” the institutionally disintegrative trend of the machine process, it is just as probable that, for the same reasons there would be “a rehabilitation of the ancient patriotic animosity and dynastic loyalty, to the relative neglect of business interests. This may easily be carried so far as to sacrifice the profits of the businessman to the exigencies of the higher politics (Ibid. 395).

Thus, Veblen sees the system of business enterprise caught in a terrible historical dilemma: If, to offset the institutional and threatening imperative of industrialism, it encourages, or acquiesces in, developments that will cause social unrest to “sink in the broad sands of patriotism,” it is faced with the equal probability that what is quicksand for one will sooner or later pull down the other.

The last paragraph of the Theory might be Veblen’s epitaph for the system of business enterprise:

“It seems possible to say this much, that the full domination of business enterprise is necessarily a transitory dominion. It stands to lose in the end whether the one or the other of the two divergent cultural tendencies wins, because it is incompatible with the ascendancy of either. (Ibid. p. 400)

(Thus, in the late 1930s, German industrialists who had supported Nazism as a “corrective discipline” for the political and economic troubles of the early 1930’s found themselves increasingly harassed by regulation, taxation, and general interference in their affairs by Nazi Party and Wehrmacht functionaries.) – Thorstein Veblen, by Douglas Dowd, 1964, pp. 52-53.

In our suddenly radical contemporary experience in Merced, we now host UC, a university whose two national laboratories of mass destruction are now competing for the design award for new nuclear weapons. Therefore, we must ask, for what end, the Cold War having ended some years ago? Our current, neo-McKinley imperial administration cum dynastic, monarchal pretensions, aims at nothing less than world domination. Like the Nazis, the neocons didn’t come to power just to regulate, tax and interfere with business. They came with a plan for world domination. Read all about it at the Project for the New American Century (http://www.newamericancentury.org).

The details of the vision really don’t matter nearly as much as the absurd fact of the vision itself “for the spread of American ideals.” For the neocons, the vision is the only fact that matters. One observes the tendency daily in the president. In fact, as opposed to vision, America cannot even fight successfully in two war theaters, let alone the many anticipated by the PNAC. And their he-man, Ariel Sharon, is in a coma.

On the other hand, they have our UC to build new nuclear weapons.

The fat leg should be called by its name: totalitarian ambition. It has not happened yet. The Alito confirmation hearing was held up for a week. Investigations of scandals mount. The drums for impeachment tap, if inaudibly to the ears of American subjects. However, “yet” is a highly ambiguous term in such a moment, because, although we are aware of the velocity of change, we aren’t able to measure it accurately, in large part for lack of honest media. The totalitarian ambition has been an old dream of American industrialists and financiers, evident to Veblen in 1904, far more overt before the two world wars, and the Bush family has been heavily involved in it since before WWI.

The only question of any importance today is whether the American people have the intelligence to see it and the energy left, in this rapidly decaying economy, to resist it, particularly without an effective opposition political party. Appeals to the ideals of the US Constitution and Bill of Rights fall on largely deaf ears. The fundamental right for which American subjects of the British crown fought was the right of political participation. After a century of fraudulent commercial advertising and government propaganda, is there enough citizenship left in the subject population to resist the neocon plan to make the Mideast safe for Israel, US oil companies, conduct an eternal Indian War against Arabs, and subject the US population to enough terror so that it doesn’t notice the absurdity of the neocon vision and the destruction of both the domestic economy and its environment.

The question is important, however, as a preliminary to the larger, more dangerous problem of how we confront global warming and lesser forms of environmental destruction. We haven’t a prayer of avoiding the global tipping point without strong state regulation of corporate environmental destruction. It also leads one to wonder just how many UC-built nuclear bomb blasts it would take to tip the planet over the edge. It is hard to imagine anything more destructive to the environment than a nuclear bomb. But, UC Merced is an environmentally conscious campus.

And they ask why the public mind is boggled so often these days.

Veblen’s prognosis for American business is a useful anchor:

“It seems possible to say this much, that the full domination of business enterprise is necessarily a transitory dominion. It stands to lose in the end whether the one or the other of the two divergent cultural tendencies wins, because it is incompatible with the ascendancy of either.” (Ibid. p. 400)

“Full domination” has been achieved all too successfully. The rule of law is rapidly crumbling before this full domination. Law was the arena in which the divergent tendencies met and argued. Without law effectively protecting the rights of citizens, the United States of America ceases to be itself and the voice of reason is drowned by the screaming antinomy between privileged and desperate subjects in a rapidly deteriorating environment. The reasonable solution would appear to be something less than “full domination of business enterprise,” beginning with regulatory agencies that are permitted to perform their necessary public function, uninfluenced by either political pressure or foxes in henhouses. The political irony is that business enterprise would have to call for a rapid, perhaps radical reduction of its domination in order to save the system of government that nurtured its rise to power. That would require an act of reason probably beyond the capacity of corporate attitudes today and equally beyond the capacities of its bought and sold political class. The real road to Hell has been paved with done deals between special interests and government.

But that’s just how things look from the middle of the San Joaquin Valley in California.

Bill Hatch

Notes:

Hannah Arendt: Origins of Totalitarianism, On Revolution

Douglas Dowd: Thorstein Veblen

Hilmar Cheese Permitted to Drill Test Well
http://www.mercedsunstar.com/local/story/11676192p-12403995c.html

Mancur Olson, The Rise and Decline of Nations

Brooks Jackson, Honest Graft: Big Money and the American Political Process

Upgrades planned for U.S. nuclear stockpile. Agency leader expects significant warhead redesigns...James Sterngold
http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/01/15/MNGTTGNL5P1.DTL&type=printable

Kevin Phillips, American Dynasty: Aristocracy, Fortune, and the Politics of Deceit in the House of Bush

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Novel legal theory

Submitted: Dec 02, 2005
Nakayama also forgot to mention that the Bush administration has rewritten the very rules used to prosecute those companies. The Bush version of the rules, which would let power companies off the hook, is being challenged in court by numerous state attorneys general, as well as environmental groups.

"It is the height of hypocrisy for the Bush administration to try to take credit today for enforcing the Clean Air Act's new source review provisions,” notes Rep. Henry Waxman, D-Calif. “The Bush EPA has been working overtime to change the underlying clean air rules and prevent such enforcement actions from being brought against dirty power plants in the future."

Nakayama also failed to note that the Bush administration is not only trying to change the rules, but that it recently declared that it would not even enforce the law against the power industry—a move the administration euphemistically described as an effort to “refocus” its activities.

Some big polluters have become so encouraged that they’ve gone to court to seek dismissal of pending charges. It’s as if someone awaiting trial for murder sought freedom on the grounds that prosecutors were going to look the other way in future murder cases. – Frank O’Donnell, TomPaine.com – Dec. 2, 2005

Big polluters and environment destroyers are operating under a new legal theory: if legislation weakening environmental law and regulation might have been pending when they committed their illegal acts under existing law, they might be able to skate. For people interested in rural excursions in Merced County, a trip down White Rock Road in Le Grand from the entrance to the Jaxon Mine all the way to the Madera County line at the Chowchilla River would reveal interesting examples of projects that assume this new legal theory. The idea behind the deep ripping of thousands of acres of seasonal pasture containing protected wildlife habitat seems to be that the Gut-the-Endangered Species Act bill by Congressman R.D. Pomboza, Species Slayer-Tracy/Merced, could get through the Senate, so “let her rip.”

Bill Hatch
---------------------------------------------

Polluter Playtime (1)
Frank O'Donnell
December 02, 2005

Frank O'Donnell is president of Clean Air Watch, a 501 (c) 3 non-partisan, non-profit organization aimed at educating the public about clean air and the need for an effective Clean Air Act.

In a move virtually unnoticed by the press corps, the Bush administration this week quietly dropped a lawsuit against a big electric power company.

The suit against Duke Power Company was brought by the Clinton administration, which accused Duke of illegally spewing too much pollution into the air. The Bush team initially gave lip service to continuing the suit, but it shelved the case after a setback in a lower court.

In the process, the administration demonstrated a phenomenon that is becoming increasingly apparent: For a government seemingly obsessed with promoting the “rule of law” everywhere from Iraq to Mongolia, the Bush administration can be pretty loose when it comes to enforcing the law back home.

Especially when it comes to enforcing environmental laws such as the Clean Air Act.

Whether it’s dealing with coal-burning electric plants in the Midwest or auto emission inspections in Ohio and Kentucky, the administration has decided it won’t even attempt to enforce the law if it seems inconvenient to big polluters or to Republican-controlled state governments.

This isn’t a trivial matter. Hundreds—perhaps thousands—of Americans are dying unnecessarily each year as a direct result of the administration’s cavalier disregard for the law.

The administration’s negligence is perhaps topped only by its brazenly false claims about its enforcement prowess. Consider, for example, the hypocritical assertions made last month by Granta Nakayama, the Environmental Protection Agency’s head of enforcement, as the agency issued a status report on its enforcement efforts.

Nakayama (who, until recently, was a corporate lawyer-lobbyist paid to undermine clean air controls) contended that “EPA's enforcement strategy and accomplishments demonstrate our commitment to achieving cleaner air, cleaner water and healthier communities."

To back his claim, Nakayama cited 10 recently resolved air pollution cases against corporate polluters. Those 10 cases would eliminate 620 million pounds of pollution and bring more than $4.6 billion in public health benefits, including “reductions in premature mortality, bronchitis, hospitalizations and work days lost.”

What Nakayama left out was that half of the results came from cases brought by the Clinton administration. These were prosecutions of electric power companies that violated the law’s “new source review” provisions, which require smokestack industries to modernize pollution controls when they increase emissions.

Nakayama also forgot to mention that the Bush administration has rewritten the very rules used to prosecute those companies. The Bush version of the rules, which would let power companies off the hook, is being challenged in court by numerous state attorneys general, as well as environmental groups.

"It is the height of hypocrisy for the Bush administration to try to take credit today for enforcing the Clean Air Act's new source review provisions,” notes Rep. Henry Waxman, D-Calif. “The Bush EPA has been working overtime to change the underlying clean air rules and prevent such enforcement actions from being brought against dirty power plants in the future."

Nakayama also failed to note that the Bush administration is not only trying to change the rules, but that it recently declared that it would not even enforce the law against the power industry—a move the administration euphemistically described as an effort to “refocus” its activities.

Some big polluters have become so encouraged that they’ve gone to court to seek dismissal of pending charges. It’s as if someone awaiting trial for murder sought freedom on the grounds that prosecutors were going to look the other way in future murder cases.

Take, for example, Cinergy, the conglomerate that provides electric power in Ohio and Indiana. Five years ago—in December 2000—Cinergy reached an agreement in principle with the Clinton administration, which had accused it of violating new source review. Cinergy pledged at the time to reduce 1 billion pounds of pollution—more, in other words—than all the “top 10” cases combined that Nakayama boasted about.

But after the 2000 elections, the company refused to sign the deal. Now, Cinergy is asking a court to dismiss the charges because of the Bush administration’s decision not to enforce the law against other companies. Cinergy no doubt will be encouraged by the administration’s change of heart in the Duke case.

The “refocused” Bush policy of non-enforcement unfortunately is spreading like the avian flu to other sources of pollution.

For instance, the states of Kentucky and Ohio recently decided to abolish auto emission inspections in the Cincinnati metropolitan area even though an American Lung Association report documented the area had 19 days this summer with unhealthful air quality.

Auto inspections do help reduce pollution, and EPA rules stipulate that smoggy states such as Ohio and Kentucky can’t just scrap pollution control programs that they don’t like. Except that, once again, the EPA says it’s not going to enforce the law.

“Illegal and irresponsible,” is how the American Lung Association describes the situation.

So you do have to marvel at the chutzpah of an EPA spokeswoman, who recently declared that, “We will continue to rigorously enforce any violations of the nation’s clean air laws.”

Except, that is, when the Bush administration doesn’t feel like it.

Notes

(1) http://www.tompaine.com/articles/20051202/polluter_playtime.php

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