The U.S. Department of Westlands

We were deeply gratified that on the same day it announced a truly rotten federal court decision on the Delta pumps, one that will cause more damage to the endangered spring run of salmon and more economic damage to residents of the Delta and the Pacific Coast commercial fishery, the McClatchy Company’s Fresno outlet chose to run the long piece on revolving doors in resource regulatory agencies. We replied below to this act of self-righteous, hypocritical publication that becomes blatant propaganda considering its timing and place.
 
Badlands Journal editorial board
 
 
5-25-10
Fresno Bee
INFLUENCE GAME: Govt regulators hired by companies...FREDERIC J. FROMMER, Associated Press Writer
http://www.fresnobee.com/2010/05/26/v-print/1946711/influence-game-govt-regulators.html
WASHINGTON At a 2005 workshop, a senior official in the U.S. government's Minerals Management Service raised concerns about ultra-deepwater drilling and included the bullet point, "Few or no regulations or standards." Within two years, Jim Grant left his post as chief of staff of the government's Gulf of Mexico region to take a job with BP PLC - one of the companies his former agency regulated in its oversight of offshore drilling.
Grant's change is one example of the revolving door between the Interior Department's MMS and the oil industry, which increasingly has the attention of Congress, the Obama administration and watchdog groups after the disastrous BP oil spill at an ultra-deepwater rig in the Gulf of Mexico.
Just this week, a government report said drilling regulators have been so close to the industry they've been accepting gifts from oil and gas companies and even negotiating to go work for them.
As BP's regulatory compliance and environmental manager for the Gulf of Mexico strategic performance unit, Grant has weighed in on several offshore drilling proposals by his former federal employer and other government agencies.
Last fall, speaking at a U.S. ocean policy task force, Grant cautioned the group to "carefully weigh policies that may establish exclusionary zones, disrupt the MMS leasing program or affect opportunities for economic growth," according to a statement posted at WhiteHouse.gov. He said BP supports access to areas previously off-limits to leasing, such as the eastern Gulf of Mexico.
"It is our opinion that economic development of ocean resources is compatible with responsible ocean stewardship," he said.
President Barack Obama made pledges during the campaign to limit the influence of special interests and promises now to end the "cozy relationship" between the oil industry and federal regulators, which he said had existed for years and into his own administration. Interior Secretary Ken Salazar acknowledged at a Senate hearing last week that there has been a revolving door problem at his agency.
The new report by Interior's inspector general flagged the issue, too.
"Of greatest concern to me is the environment in which these inspectors operate - particularly the ease with which they move between industry and government," wrote Acting Inspector General Mary Kendall. Kendall said the investigation found that even after starting job negotiations with Island Operating Co., an MMS inspector conducted four inspections of the same company's platforms - and found no problems. Soon after, the unidentified inspector resigned to work for the company.
The revolving door can undermine government regulation in several ways.
Former government workers who move to industries they once regulated can take advantage of personal relationships at their former agencies on behalf of their new companies. They can exploit loopholes in regulations based on their knowledge of the federal bureaucracy. And even before leaving, government employees hoping to one day land high-paying jobs with companies they regulate might be tempted to ease off.
MMS has long been targeted by government investigators, lawmakers and watchdog groups. In 2008, an investigation by Interior's inspector general described a "culture of substance abuse and promiscuity" at the minerals agency, finding that workers at the MMS royalty collection office in Denver partied, had sex and used drugs with energy company representatives. Employees also accepted gifts, ski trips and golf outings. Then-Inspector General Earl E. Devaney assailed "a culture of ethical failure" and an agency rife with conflicts of interest.
"To say that MMS has had a revolving door problem doesn't even begin to describe how profoundly this agency has entangled itself with industry," said Mandy Smithberger, an investigator with the Washington-based Project on Government Oversight, a private watchdog group. "The revolving door has spun so readily in this case that the lines between the regulators and the regulated are now virtually nonexistent."
The government restricts certain practices by federal workers. Government employees who participate in contracts, grants or lawsuits generally are barred forever from representing anyone before a federal department or court on that matter. For employees who supervised such matters in the final year of their government service, that ban lasts for two years.
"Very senior" employees - such as Cabinet officers, the vice president and some high-level White House officials - are subject to a two-year cooling-off period, during which they are banned from contacting their former agencies or certain high-level executive branch employees in any federal agency. "Senior employees" - who include other presidential appointees - are subject to a one-year cooling-off period, although Obama made these people sign a pledge agreeing to extend it to two years as a condition of employment.
Grant's name surfaced at a congressional hearing when Rep. Kathy Castor, D-Fla., asked BP America President Lamar McKay about former Interior officials who worked at his company and about former BP officials who work for the Interior Department. Grant did not return telephone and e-mail messages seeking comment, and BP declined to discuss his employment.
McKay also cited Sylvia Baca as someone who went from BP to Interior. She made the switch twice. In the Clinton administration, she served as the Interior Department's assistant secretary for land and minerals management and worked as the department's acting director of the Bureau of Land Management.
In 2001, Baca joined BP, where she worked in several senior management positions. Last June, Salazar brought her back to Interior, tapping her for the position of deputy assistant secretary for land and minerals management.
He cited her "professionalism and detailed knowledge of Interior's land and energy responsibilities."
Responding to questions from The Associated Press about the hiring, Salazar spokeswoman Kendra Barkoff said Baca is and has been recused from all matters involving BP and the Gulf spill.
"There is no requirement under ethics rules that she be recused from all oil issues," Barkoff added. "However, she is not and has not been involved in offshore energy development issues."
More generally, the offshore drilling industry has tapped the government's expertise and connections. The National Ocean Industries Association, an offshore energy trade group, has plucked its last two presidents from the ranks of former MMS directors. In March, Randall Luthi, who was MMS director from July 2007 through January of last year, took over the industry post, replacing Tom Fry, who had been president of the group since December 2000.
Through a spokeswoman, Luthi declined an interview request. Fry did not return a message left through the National Marine Sanctuaries Foundation, where he serves as a trustee.
 
 
 
 
U.S. Department of Westlands
 
The recent appointment of H. Craig Manson as general counsel for Westlands Water District is the second hire Boss Tom Birmingham has made through the Department of Interior’s revolving door. The first, a few months before the Bush regime shuffled off was Jason Peltier, deputy assistant secretary for water and science, former long-time lobbyist for federal water contractors with the Central Valley Project before going to Washington DC in 2001. Birmingham picked Peltier for assistant general manager of Westlands. Peltier’s work at Interior to influence federal water policy on behalf of
Westlands, his largest client in his previous lobbying position, did not harm his resume for the Westlands job.
 
Manson, a graduate of the U. S. Air Force Academy, got his law degree from Pacific McGeorge Law School, where future Supreme Court Justice Anthony Kennedy was teaching constitutional law, and fulfilled his military service in several legal positions with the Air Force in the US, Korea and Outer Space (he is credited with being the founding director of the Air Force Academic’s “Air and Space Law Program”).  After a stint in private practice with the Sacramento firm of Downey Brand (“Lawyers who see possibilities ®”), Manson moved on into state government service during the Pete Wilson administration as general counsel for the state Department of Fish and Game, working on the state and federal Endangered Species acts, wetlands and water-law issues, the California Environmental Quality Act and other natural resource issues. Revolving through that door as the Wilson administration wound down in 1998, Manson was appointed a municipal court judge and later a superior court judge in Sacramento County before revolving back into Republican service at Department of the Interior under the Bush administration.
 
 In addition to graduating in the top ranks of the Academy and in law school (editor-in-chief of Pacific Law Review), he is reportedly  “a highly decorated military officer” and the first African-American to serve as assistant secretary of the Interior for Fish, Wildlife and Parks. He will be the first African-American general counsel for Westlands, too, whose growers’prior relations with African-Americans have tended to be with cotton and melon-picking crews from the ghettoes of Hanford and Bakersfield.
 
Although Manson left his position as assistant secretary of the Interior for Fish, Wildlife and Parks in 2005, he left in place Julia McDonald, subject of two Interior Department inspector general investigations before the end of the Bush administration. In this move, Manson recapitulated what Bennett Raley, Peltier’s superior at Interior did in late 2004, leaving Peltier in place to support overpumping of San Joaquin Delta water after Raley, Colorado’s top water lawyer got what his state wanted, with the help of Interior Secretary Gail Norton, another Colorado lawyer and politician – a reduction in the amount of water California could take from the Colorado River. Manson and McDonald’s number one target was Northern California environmentalists’ attempts to protect seasonal wetlands and vernal pools during the speculative housing boom, which has subsequently busted, leaving the areas with the greatest concentration of this type of wetlands – San Joaquin, Stanislaus and Merced counties – at the top of the national ranking for foreclosure rates.
 
Manson, Peltier, Raley and McDonald, three of the four from California and all having major influence on environmentally destructive decisions by the Department of Interior, particularly the Fish and Wildlife Service, were all examples of how the revolving door worked during the Bush administration. It is beginning to emerge in the wake of the BP oil spill that things aren’t any better in the Obama administration. One would also have to add failure to enforce safety regulations on Massey Mining, one of whose West Virginia mines blew up several months ago, killing 29 miners.
 
When Manson left Interior in 2005, he went to teach at Pacific McGeorge Law School in Sacramento. The faculty of McGeorge, which has flourished far, far beyond its humble origins as a night law school for business people and state Capitol staff and legislators (for example, state Treasurer and former state Attorney General Bill Lockyer), included until his elevation, U.S. Supreme Court Justice Anthony Kennedy, author of the Citizens United decision, which weakened the definition of political corruption.
 
Nathaniel Persily, professor of law and political science and director of the Center for Law and Politics at Columbia Law School, wrote for Slate.com in January that Citizen United was in a lengthening line of decisions that increase corporate political influence:
 
… Citizens United changed the very definition of corruption. In the case it overruled, Austin v. Michigan Chamber of Commerce, corruption included "the corrosive and distorting effects of immense aggregations of wealth [amassed] through the corporate form." No longer. Even the garden variety definition of corruption as signaling "undue influence on officeholders' judgment" or special access is under attack. As the court said in Citizens United, "The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt. ... Ingratiation and access, in any event, are not corruption."
Because corruption of the quid pro quo variety is notoriously difficult to prove (after all, how many politicians admit they voted a particular way because of a campaign donation?), defendants historically relied on assurances from the court that states could target the appearance of corruption. Although still standing, that concept also teeters from the decision, as the court reinforced that "[t]he appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy." -- Nathaniel Persily, Slate,  Jan. 25, 2010.
 
Returning to the subject of vernal pools and the legality of their removal by urban and agricultural developers, it would be interesting to know if, after Citizens United, Justice Kennedy would have had to recuse himself from the decision on a case involving a friend and benefactor, Borden Ranch Partnership  v. U.S. Army Corps of Engineers. His recusal on this pivotal wetlands case precipitating a tie vote among the justices, which had the practical effect of a victory for the Corps and the federal Clean Water Act and defeat for Angelo Tsakopoulos and developers. After Citizens United, would it even matter any more, as it once did, if Tsakopoulos bragged inside the Beltway of his influence on a hometown Supreme Court justice?
 
 
It  is the kind of situation that lies under the surface of the whole political process these days and it is frustrating to ordinary people, whose only effective recourse against corporate special interests are politicians and judges with a sense of the Common Good and the Public Trust. That describes a class of officials whose numbers have been dwindling for 30 years. When we look at special interest peddling, revolving doors, and corruption in offices, the ordinary person’s natural temptation is to get cynical and quit either thinking about it or trying to do anything. There is a theory, for example, that the fall in voter registration and participation is not so much the result of political apathy as of muted, perhaps even unconscious forms of political disgust. People concerned with the drastic environmental problems of the San Joaquin Valley see, decade after decade, its largest and least environmentally defensible water district  – farming alkali flats with surface water politically heisted from the richest farmland in the state and draining its fields with selenium-laced ag tailings.. They watch Westlands consistently select new generations of slick, elite political hustlers to keep the destructive game going for the economic benefit mostly of very few, very large agribusinesses. But there is nothing the people can do about the wholesale pollution of drinking water and habitat for migratory waterfowl along the Pacific Flyway caused by Westlands, its growers and corrupted elected officials and state and federal regulators.  Five congressional seats cover the large part of the San Joaquin Valley. Sheldon Wolin accurately describes the management of electoral politics here, there and everywhere in the land of the free:
 
At issue is more than crude bribery. Campaign contributions are a vital tool of political management. They create a pecking order that calibrates, in strictly quantitative and objective terms, whose interests have priority. The amount of corruption that regularly takes place before elections means that corruption is not an anomaly but an essential element in the fuctioning of managed democracy. The entrenched system of bribery and corruption involves no physical violence, no brown-shirted storm troopers, no coercion of the political opposition. While the tactics are not those of the Nazis, the end result is the inverted equivalent. Opposition has not been liquidated but rendered feckless. – Wolin, Democracy Inc. pp. 140-141.
 
Fecklessly, we note that all five of those congressional seats are of interest to Westlands, which gathers water from many rivers by hook and crook to slake its immense, alkaline thirst. Not only can Westlands be counted on to continue its self-righteous and aggressive corruption of politicians (who self-righteously and aggressively compete with one another to be corrupted), but it is constantly running a string of lawsuits. One of them might make its way eventually to the US Supreme Court, where Manson might argue Westlands’ case before the most distinguished faculty member of his law school, Justice Kennedy. The issue would inevitably involve the aggressive and self-righteous claims of capitalism against the Common Good and the Public Trust, probably in terms of some mixture of private property rights versus environmental law and regulation and  the further commodification of fresh surface water.
 
Manson is a member of three elites, perhaps not so separate: military, legal and political. The dominant theme of his career has been to attack environmental law and regulation. He put teaching law and the bench behind him to become the top legal advocate for a huge, environmentally destructive, scofflaw water district that to survive must corrupt land and government. He gets $185,000, unlimited fly-fishing rights to the old Hills Bros. Bollibokka club on the McCloud until Westlands can buy enough of Congress to get the public funds to raise the Shasta Dam to flood the historic club, invitations to any Los Banos duck club he wants, and no doubt much, much more. All he has to do is lie – consistently. smoothly and grammatically -- in opposition to all environmental law and regulation that stands between Westlands and more water.
 
Out there on the west side of the San Joaquin Valley where Westlands Water District lies, they’ll tell you what happens to people who don’t get along with their unique worldview. “We send them to Bakersfield,” they say. It means somebody shoots them in the head and drives their car into one of the two great canals on the west side: the Edmund G. “Pat” Brown State Water Project Canal or the federal San Luis and Delta-Mendota Canal. I once interviewed a former sheriff’s deputy who had scuba-dived among seatbelted skeletons dancing in the current behind the wheels, “sorta waving at you, you know.” Not really suitable material for a family newspaper.  
 
Speaking of the family newspaper business, one of the better things about reporting for one of them is meeting retired U.S. Air Force officers. Most of them have spent enough time in the air to have seen the rapid rate of environmental destruction. Secondly, they take oaths not to lie.