10-4-09
10-4-09
Badlands Journal
Fresno federal judge drinks the Kool Aid...Badlands Journal editorial board
http://www.badlandsjournal.com/2009-10-04/007445
"How could this not affect the human environment?" Wanger asked of the smelt rules, which are known as a biological opinion. "It has had catastrophic effects."
Following the judge's logic, there could be separate environments for all God's critturs, from the nematode to the elephant. In fact there is only one environment and human technology in the employ of the human political economic system is destroying it. Although global warming is a crisis that could exterminate a million species and make life on earth a living hell for humanity, it is still denied by the national Chamber of Commerce,
Westside agriculture has had catastrophic effects on the San Joaquin-Sacramento Delta, the San Joaquin River, migratory waterfowl, land subsidence, the salt content of its soils, lately the entire Pacific commercial salmon fishery, and for more than half a century it has corrupted federal resource agencies, state and local government and the courts with few exceptions. This year it employed the "crisis-management" international PR firm, Burston-Marsteller, which created a sophisticated propaganda campaign that included two main false claims: that 40,000-80,000 farmworkers would be unemployed as a result of a "man-made drought" and that Westlands Water District would received only 10 percent of its water.
The San Luis & Delta-Mendota Water Authority itself refuted the first claim:
9-21-09
Hanford Sentinel
Water officials: Pumping restrictions cost Westside agriculture 2,000 jobs...Seth Nidever...9-19-09
http://hanfordsentinel.com/articles/2009/09/19/news/
doc4ab5679f27c3f041959766.txt
Officials at the San Luis & Delta-Mendota Water Authority issued a statement Friday claiming100,000 acres went unplanted and 2,000 jobs have been lost on the Westside because of federal pumping cutbacks to protect the endangered Delta smelt fish...
One westside water manager, who did not wish to be identified, told Badlands last week that, as a result of a emergency water transfers at no doubt emergency prices throughout the growing season, Westlands Water District ended up with "80 to 85 percent" of its water. Even if the rumors are somewhat exaggerated, we figure, from periodic press reports of transfers, in the end Westlands got a great deal more than the official propaganda figure of 10 percent.
The only "catastrophe" in this situation is that the third year of the California drought is cutting into agribusiness profits.
All the public is seeing, just following press reports, is the real estate drama -- the westside landowners' dilemma facing serious restrictions on water from the Delta's crashing ecology, rising salt and sinking land. Behind that show lies the front end of FIRE, the finance and insurance industries that jerk the chains of the landowners, the water districts, the layers of government and the courts. They already see the alkali future of the west side; they're more concerned about drinking water in Southern California. How could existing -- not to mention potential future residents of Southern California -- be expected to pay their mortgages if they cannot be provided an adequate supply of drinking water?
Wanger isn't talking about the environment. He's just talking about business as usual.
Badlands Journal editorial board
10-3-09
Fresno Bee
Judge: Smelt plan lacked critical analysis...John Ellis
http://www.fresnobee.com/updates/v-print/story/1660695.html
The federal government failed to conduct a critical environmental analysis before approving a controversial set of rules for the endangered delta smelt, a Fresno judge said Friday, providing an encouraging legal win for farmers.
The analysis was required under the National Environmental Policy Act -- and it should have taken into account the environmental effect on humans, U.S. District Judge Oliver W. Wanger said.
Wanger did not order any immediate changes in the smelt plan or the resulting water cutbacks for west-side agriculture and users in the Bay Area and Southern California. But that could happen during a critical hearing in December, when Wanger could order the federal government to rework the smelt plan -- and possibly suspend it while that revision is performed.
The decision does not open the door to considering economic effects of the plan, which have stirred widespread anguish. But a rewritten plan that takes into account the environmental effect on humans could result in more water for west-side agriculture.
In a nod to the complicated water law and legal issues at play, Wanger said he probably will bring in an outside expert -- someone who is neutral and "super qualified" -- to help him wade through the case.
Still, Wanger appears to already have concluded that the smelt plan has hurt the environment. He said it has caused dust to rise from dry fields, possibly reducing air quality. And increased ground-water pumping has caused land to sink, he said.
"How could this not affect the human environment?" Wanger asked of the smelt rules, which are known as a biological opinion. "It has had catastrophic effects."
His oral ruling -- which attorneys from both sides were still trying to understand late Friday -- wasn't unexpected. In May, he agreed with a claim in a lawsuit filed by the Westlands Water District and the San Luis & Delta-Mendota Water Authority that the new smelt plan lacked an assessment on the environmental effect on humans.
Terry Erlewine, general manager of the State Water Contractors, praised Wanger's latest decision.
"We strongly believe these other human impacts should be reviewed before you make a decision," he said.
Westlands spokeswoman Sarah Woolf said Wanger "was very fair on all fronts in trying to find a solution."
"Unfortunately," she added, "this doesn't result in any new water tomorrow, but it is a step in the right direction."
Friday's four-hour hearing stemmed from a March lawsuit filed by Westlands and the San Luis & Delta-Mendota Water Authority, which sought to stop the federal government from enforcing the new smelt-management plan.
Several other agencies -- including the State Water Contractors and the Metropolitan Water District of Southern California -- filed almost identical lawsuits.
All have now been combined into one legal action, which marks a major pushback by agriculture and urban water users to challenge the new federal rules that protect the smelt. The U.S. Fish and Wildlife Service released the rules in March.
The updated rules were drafted after Wanger had invalidated earlier regulations because they did not comply with the federal Endangered Species Act. They have been under fire ever since.
Wanger also dismissed arguments made in a related lawsuit filed by the Pacific Legal Foundation on behalf of three San Joaquin Valley farming operations.
The foundation claimed the federal government has no constitutional authority to oversee the endangered smelt, because it has no commercial value and is not involved in interstate commerce.
Because of that, managing the smelt and placing it under the protection of the Endangered Species Act violates the U.S. Constitution, which limits federal domestic authority to things involved in interstate commerce, the suit claimed.
Wanger rejected that argument.
Modesto Bee
Not everyone agrees on state water package...Dan Walters, The Sacramento Bee
http://www.modbee.com/opinion/walters/v-print/story/880369.html
Last week, in response to a reporter's question, Arnold Schwarzenegger said he and legislators are so close to an historic deal on California's water crisis that it could be done in hours.
Superficially, that appears to be true. A multiyear drought, a federal judge's crackdown on pumping water out of the Sacramento- San Joaquin Delta to protect fish, national media attention on San Joaquin Valley farmers, and pressure from the governor and even the White House have created more political activity on water than we've seen in three decades.
"Everyone agrees that we are close and that we have made a decade's worth of progress in just a few weeks," Senate President Pro Tem Darrell Steinberg of Sacramento said after deciding not to move a package of water legislation shortly before midnight Sept. 11.
Some very powerful interest groups, such as the huge Westlands Water District, the Metropolitan Water District of Southern California, the Natural Resources Defense Council and the Environmental Defense Fund, have agreed on provisions that had been in dispute for decades.
Seemingly, everything could be done quickly if only Schwarzenegger would call a special legislative session, as the White House is urging. But appearances may be deceiving. Negotiations on the intertwined issues of improving the delta's environment and improving reliability of water supply have also revealed political microfissures.
Latino Democrats want more water for poor farm communities, while urban Democrats are attuned to the Sierra Club. And Democrats are being pressured by powerful public employee unions to resist big bond issues, perhaps $12 billion, that would suck money from a deficit-ridden state budget.
San Joaquin Valley Republicans back a big bond issue to finance new reservoirs and perhaps a canal to carry water around the delta. Southern California Republicans are leery of massive spending for environmental fixes.
So yes, there's more activity than we've seen in decades. But without virtual stakeholder unanimity, all that political churning could just be treading water.
Sacramento Bee
Editorial: Klamath pact could be a start toward peace
http://www.sacbee.com/opinion/v-print/story/2227491.html
This week's draft settlement on Klamath River water doesn't mark the end of an epic battle, but it does mark a milestone.
Just a few years ago, farmers, Indian tribes, environmentalists and power users were at one another's throats. It was hard to imagine they would ever sit down and negotiate a pact that would simultaneously help fish and farmers while also protecting ratepayers who depend on Klamath River hydropower.
Yet it happened. After years of painstaking talks, a settlement to the Klamath wars is within sight. The trick now will be to unite diverse groups to secure needed funding from Congress and other sources.
The core of this deal is the removal of four dams on the Klamath. Removing those four could restore many miles of spawning habitat on a river that once was a mighty salmon factory.
PacifiCorp, the utility that owns the dams, balked at first. But eventually, its executives confronted reality: Getting a new license for their hydropower plants could likely cost more than letting the dams go.
Dam removal, however, is just one aspect of the deal. If the dams come down, farmers could lose electricity needed to move water around the Klamath Project, a federal irrigation project that staddles the California and Oregon borders. Irrigators needed a source of substitute power, as well more secure water supplies and assurances they wouldn't become the target of endangered species regulations in the future.
The Klamath settlement has all those provisions, and not everyone is happy about it.
Some environmentalists think the Bush administration, followed by the Obama administration, is giving up too much to farmers, with only vague assurances that the dams will come down.
There are uncertainties in the pact. Funding is one of them. The disposition of potentially toxic sediment behind the dams is another.
Yet the critics are missing the big picture. The Klamath negotiations have created a broad-based consitutency for getting the settlement implemented and resolving unsettled issues over time.
And it's so much better than the alternative.
Five years ago, the Klamath combatants were heading down the road to endless litigation, confrontation, name-calling and bitterness.
No one wins in these kinds of protracted water fights.
Need evidence? Just look at the Sacramento-San Joaquin Delta.
New York Times
End to the Klamath War…Editorial
http://www.nytimes.com/2009/10/04/opinion/04sun3.html?_r=1&sq=endangered species&st=cse&scp=2&pagewanted=print
The announcement that four dams on the Klamath River will be removed to restore imperiled salmon runs is a victory for fish, farmers, Indian tribes and the much-maligned Endangered Species Act.
The dams in Oregon and California will not come down until 2020. In the meantime, PacifiCorp, the Portland utility that owns them, has promised to improve water quality and salmon habitat. The cost could run as high as $200 million, which is roughly what the company would have been obliged to pay anyway to construct fish passage around the dams to increase the salmon’s chances of survival.
All sides will also benefit from a separate agreement that will divvy up scarce water flows in the Klamath. Taken together, the two agreements mean that we can finally see the end of a dispute that grabbed national headlines in 2001, when federal water managers cut irrigation deliveries to farmers to preserve water flows for two threatened or endangered fish species — coho salmon and a less majestic critter known as the suckerfish.
Cries that farmers were being sacrificed to the lowly suckerfish drew Karl Rove and other Bush politicos into the fray. More water was released to the farmers, at which point 33,000 fish died downstream. At which point, too, wiser heads began to see that what was needed was a water-sharing plan that — coupled with federal aid to farmers who agreed to let their land go fallow in dry seasons — would guarantee everyone enough to survive.
Neither the restoration plan nor the plan to remove the dams would have been possible without the Endangered Species Act. The act requires the federal government to identify species at severe risk and then devise ways to shape human behavior to give these species a chance to survive. In this case it has worked brilliantly.
Anti Corruption Republican
USA v. Kevin Ring: Jury Instructions (Part I)
Influence, Access and Quid pro Quo
http://anticorruptionrepublican.blogspot.com/2009/10/usa-v-kevin-ring-jury-instructions-part.html
U.S. District Judge Ellen S. Huvelle has reviewed multiple versions of proposed jury instructions from the prosecution and defense. She has considered the legal arguments of both sides. Now she has issued the instructions she will give to the jury in USA v. Kevin A. Ring. Fortunately for all of us, Beth Sussman at National Journal has posted Judge Huvelle's jury instructions for us to examine. Let's take a close look at a few:
Jury Instruction No. 42 is found on pages 53-54 of 72 of the .pdf. These pages are labeled pages 49-50.
JURY INSTRUCTION NO. 42
HONEST SERVICES WIRE FRAUD - FIRST ELEMENT: SCHEME OR ARTIFICE TO DEFRAUD
...
The thing of value must be given with the intent to influence the public official in the performance of his or her official actions. This requires some specific quid pro quo (a Latin phrase meaning "this for that" or "these for those"), that is, a defendant must intend to receive an official action in return for the receipt by the public official of a thing of value. The defendant must intend that the public official realize or know that he or she is expected, as a result of receiving this thing of value, to exercise particular kinds of influence[1] or decision-making to benefit the giver as specific opportunities to do so arise.
Furthermore, it is not necessary for the government to prove that the defendant intended to induce the public official to perform a set number of official actions in return for the things of value. The quid pro quo requirement is satisfied so long as the evidence shows a course of conduct of giving things of value to a public official in exchange for a pattern of official actions favorable to the giver. Thus all that must be shown is that things of value were given with the intent of securing official action(s) in return[2]. For example, things of value may be given with the intent to retain the official's services on an "as needed" basis, so that whenever the opportunity presents itself, the official will take an offical action on the giver's behalf.
However, as I previously instructed, a scheme or artifice to deprive the United States and its citizens of a public official's honest services is not proved if the thing of value is given only in order to buy favor or generalized goodwill[3] from a public official who either has been, is, or may at some unknown, unspecified later time, be in a position to act favorable to a giver's interests.[4]
Emphasis in original
1 Notice that the purchase of "influence" is illegal.
2 The government must only prove that things of value were given with the "intent of securing official action[s] in return". Notice that there is no need to show that a specific thing of value was given in exchange for a specific official action and that such an agreement was made at the onset of the exchange. Our understanding is that the government must identify which official actions were purchased even though the defendant may not have identified the official action prior to the exchange.
3 In other words, the purchase of "access" is not illegal.
4 If a thing or things of value are given to a public official merely because the public official in "in a position to act favorable to a giver's interests", there is no crime. Judge Huvelle is giving this instruction to the jury in order to inform the jury of case law created by USA v. Sun-Diamond Growers of California. The defense relies heavily on this 1999 Supreme Court case in its claim that there must be a specific thing of value given in exchange for a specific official actions for a crime to exist. As we shall see in our promised post on relevant case law later this weekend, Judge Huvelle has interpreted Sun-Diamond correctly, and the defense has misinterpreted it.
USA v. Kevin Ring: Jury Instructions (Part II)
John Doolittle and a Quid pro Quo
http://anticorruptionrepublican.blogspot.com/2009/10/usa-v-kevin-ring-jury-instructions-part_02.html
We're still reviewing the jury instructions provided by U.S. District Judge Ellen S. Huvelle in the case of USA v. Kevin A. Ring.
Let's look at:
JURY INSTRUCTION NO. 54
COUNT VIII: HONEST SERVICES WIRE FRAUD - CO-CONSPIRATOR LIABILITY
In this instruction, Judge Huvelle gives the jury a list of items it must find in order to find Kevin Ring guilty of this specific count. We're most interested in the second item on the list:
In order to find the defendant guilty of honest services wire fraud in Count VIII ... you must find find beyond a reasonable doubt the following:
(2) that one of the co-conspirators committed honest services wire fraud by compensating Julie Doolittle as a means to provide a quid pro quo to Congressman John Doolittle.
If my reading comprehension and logic are right, in order to find Kevin Ring guilty of Count VIII, the jury must first find that someone engaged in a quid pro quo arrangement involving former Rep. John Doolittle (R-Calif.). Judging from the jury instruction, the thing of value Mr. Doolittle likely received was the compensation his wife Julie received from her "job" with Jack Abramoff. It isn't clear what, if any, official action performed by Mr. Doolittle that the jury may find.
Suffice it to say that if the jury finds Mr. Ring guilty of Count VIII, both Mr. and Mrs. Doolittle are in serious danger.