Future of dams could pit farms against fish
Irrigation district's federal license to operate water outlets expires in 2014...JONAH OWEN LAMB
The Merced River begins its journey high in the Sierra before rushing down the foothills and crossing the Valley to finally empty into the San Joaquin River.
Most of this scenic river's 122-mile-route runs below two of Merced Irrigation District's dams -- the McSwain and New Exchequer. The very life of the river depends on how much water these dams release and when.
That relationship may change. In 2014 the irrigation district's federal license to operate the dams expires. Most expect the license to be reissued -- but environmentalists hope that the new license will change the way the river has been managed. Much of their concern is about the health of the river's fish.
When the license was first issued in 1964 by the Federal Power Authority, now the Federal Energy Regulatory Commission, the licensing process paid little heed to environmental concerns. But since the 1980s, when environmental groups were given a seat at the licensing table, dam operators have had to realign their operations to include ecological concerns.
What that means for MID, local farmers and their water supply has yet to be seen. What is certain is that this licensing process, like most of the state's water wars, will continue to pit farms against fish.
"The big risk to us is a loss of water supply," says Ken Robbins, MID's legal counsel.
MID's director, Dan Pope, says MID hopes to come to a fair compromise with all parties. He hopes to strike a balance that gives to federal agencies and environmental groups, but still allows continued use of water for farming and electricity.
But that doesn't mean he isn't worried. "One of our largest concerns would be the loss of water supply," said Pope. Another effect of less water could also limit the dam's ability to generate electricity, he said.
Keith Nakatani, director of the California Hydropower Reform Coalition, said that through the licensing process his group hopes to make the river's health a mandatory aspect of MID's dam management.
What this means is simple: more water for fish. "Overall what we are trying to do is to get increased flows," he said.
But, said Nakatani, groups like his only want flows to mimic the natural seasonal nature of the river. That doesn't always have to equal bad news for farmers.
The reason Nakatani wants the Merced River to flow more like the way it did before it was dammed up is because of the sorry health of its fish and California's fisheries.
Today, Merced River's salmon and steelhead are in bad shape, says Chris Shutes of the California Sportsfishing Alliance. "The fish are not in good condition right now," he says.
Last fall's salmon run was dangerously low, he said.
According to the U.S. Fish and Wildlife Service, the salmon and steelhead runs on the Merced River are 10 percent below average.
As the licensing process moves forward, a major sticking point has already arisen -- the size of the area to be considered. MID wants to limit the scope of the license to its reservoirs. Environmentalists want it to encompass as much of the watershed as possible because the extent of the dam's effects are wider than just the reservoirs.
Whatever is agreed upon during the licensing process, by 2014 it's clear there will be changes. Whether those will include both healthy fish and happy farmers or a less comprehensive result remains to be seen.
Sources: Obama putting Bush species rule on hold...DINA CAPPIELLO, Associated Press Writer
President Barack Obama wants agencies, at least for now, to resume full scientific reviews of projects that might harm endangered wildlife and plants.
Officials said Tuesday that the president will sign a presidential memorandum to put on hold a last-minute Bush regulation until the Interior and Commerce departments complete a review of the rule.
The officials spoke on condition of anonymity because they did not want to get ahead of the president's announcement during a visit to the Interior Department.
The Bush-era regulation made optional the consultations federal scientists have performed for 35 years on endangered species decisions. The rule allowed federal agencies to decide for themselves whether projects such as dams and power plants posed risks to endangered species or the places they live.
The existing rule also prohibits a project's contribution to global warming from being part of the evaluation of any threat to endangered species.
The changes, completed in just four months, were described at the time by the Bush administration as minor. But Democrats and environmentalists have argued that the regulations modified long-standing policy.
Democratic leaders in Congress who are attempting to reverse the rule applauded the president's decision.
"I wholeheartedly support the president's proposal to restore the protections for endangered species that the Bush administration spent so many years trying to undermine," said Rep. Nick Rahall, D-W.Va., who chairs the House Natural Resources Committee.
Rahall is pushing to overturn the rule through a congressional resolution. There is also a provision tucked into the $410 billion spending bill the House passed last week that would allow the Interior and Commerce secretaries to withdraw regulations.
Since the Bush rule took effect before Obama was sworn in, a rule overturning it would have to go through a lengthy review process before taking effect.
Pending home sales fell 7.7 pct to new low in Jan...ALAN ZIBEL, AP Real Estate Writer
The number of homebuyers who agreed to purchase an existing home sank to a new low in January as economic woes turned them away from the staggering housing market, the National Association of Realtors said Tuesday.
The group's seasonally adjusted index of pending sales contracts fell 7.7 percent to 80.4 in January from a downwardly revised December reading of 87.1.
January's reading was far worse than the 85.1 economists expected, according to Thomson Reuters, and came in below the previous record low of 83.1 in November.
"It really does all come back to the job market," said Mike Weiss, a real estate analyst with Weiss Research, in a research note. "The latest evidence suggests we're seeing little relief on that front. Jobless claims are rising sharply and layoff announcements are coming fast and furious."
The index, which started in 2001, tracks signed contracts to buy previously owned homes. Typically there is a one- to two-month lag between a contract and a done deal, so the index is a barometer for future home sales.
The stumbling housing market took a steep dive after last fall's dramatic stock market declines. Though sales bounced in December, they fell more than 5 percent in January, diminishing hopes that the worst of the housing recession was over. And Tuesday's report appeared to confirm that.
Pending sales were down in every region but the West, where soaring foreclosures have made prices especially attractive for buyers. The index there was up more than 2 percent from December.
Pending sales in the Northeast, however, were down about 13 percent, while they fell 12 percent in the South and 9 percent in the Midwest.
Many in the real estate industry are counting on an $8,000 tax credit for first-time homebuyers as their best hope for boosting flagging sales. That incentive was included in the economic stimulus package signed by president Barack Obama last month.
"Even with many serious potential home buyers on the sidelines waiting for passage of the stimulus bill, job losses and weak consumer confidence were a natural drag on home sales," Lawrence Yun, the Realtors chief economist, said in a statement.
Court makes it harder to challenge forest rules...The Associated Press
WASHINGTON The Supreme Court has made it harder to challenge federal regulations governing timber sales and other policies in national forests.
In a 5-4 decision Tuesday, the court says environmental groups cannot pursue a lawsuit against forest regulations that limit public input when environmental impact on a U.S. Forest Service project is expected to be small.
The case concerned a proposal to salvage timber from 238 acres in the Sequoia National Forest in California. A fire in the summer of 2002 burned 150,000 acres. Even though the Forest Service withdrew the proposal, the federal appeals court in San Francisco upheld a nationwide injunction against the regulations.
The government argued that a challenge to the regulations must be tied to a specific project and the court agreed in an opinion written by Justice Antonin Scalia.
The case is Summers v. Earth Island Institute, 07-463.
Local briefs: Environmentalists lose in fight over Valley air...The Fresno Bee
The 9th U.S. Circuit Court of Appeals in San Francisco sided Monday with federal officials who say the San Joa- quin Valley has met the federal standard for dust and other particles known as PM-10.
The court ruled against environmentalists who sued in 2006. The environmentalists said air authorities inaccurately claimed some PM-10 violations didn't count because of high wind conditions.
But the court Monday agreed with the U.S. Environmental Protection Agency, which decided the San Joaquin Valley Air Pollution Control District had met the federal standard for dust and other PM-10 particles.
Earthjustice, an Oakland-based legal watchdog, last month filed a second lawsuit against the EPA's PM-10 approval. The suit challenges whether the improvement came from permanent pollution reductions or just a "fortunate weather pattern."
It also questions whether there also is a plan to maintain the PM-10 standard in the future.
EPA drills wells in Visalia, hunts toxic chemical...Lewis Griswold
The federal Environmental Protection Agency will begin drilling monitoring wells around downtown Visalia today to look for the source of a dry cleaning chemical that has contaminated drinking water supplies.
The six wells will allow the EPA and the state Department of Toxic Substances Control to search for perchloroethylene, or "perc." The chemical is used in dry cleaning, and has shown up in drinking water in Visalia.
Exposure to the man-made substance, especially through breathing vapors, can cause liver and kidney damage, and is believed to increase cancer risk.
California Water Service said it has four wells in Visalia that have water contaminated with perc.
District manager Phil Mirwald said Monday that the water from the wells is treated with activated carbon to remove the chemical. Perc was first detected by Cal Water in one of its wells in 1991, Mirwald said.
All drinking water in Visalia comes from wells. But an EPA spokeswoman said that the drinking water in Visalia meets federal and state standards for safety.
The EPA is paying for the $207,000 cost of drilling.
But after the drilling is done and water and soil samples are collected and analyzed, it's up to the state to identify owners of property where the contamination occurred and ask them to pay for the cleanup, said Mike Vivas, a Department of Toxic Substances Control project manager.
"By the end of the summer, we expect to identify some responsible parties," Vivas said.
Vivas said the most common cleanup method is to drill a hole in the soil and vacuum out the vapors. Contaminated water is run through carbon filters to clean it.
Visalia was chosen to look for sources of perc because the contamination has been spreading and city residents get all of their water from wells, state officials said. Over the last quarter century, contamination has been detected in 25 water wells, including some owned by private operators or small companies, and more recently buried monitors have found vapors.
The state Air Resources Board has banned dry cleaners from buying new machines that use perc, but existing machines can continue using the chemical until 2023.
Incentives spur visitors to Valley housing tracts, builders say...Sanford Nax
Special financing rates, combined with higher loan limits and new federal and state tax credits, are prompting more people to visit new homes, local builders said Monday.
"Of the people who walked into our model homes this weekend, about 90% inquired about how they can benefit from these new tax credits," said Paula De Young of De Young Properties in Fresno.
Effective Sunday, many homebuyers can take advantage of two new tax credits: a $10,000 state program available to any purchaser of a new house and an $8,000 federal incentive for first-time buyers.
Taken together, some prospective buyers are eligible for tax credits totaling $18,000.
The McCaffrey Group, a Fresno builder, said the tax credits, combined with the increase in Federal Housing Administration loan limits and special financing of 2.5% the first year, 3.5% the second year and 4.5% for years three through 30, have helped sustain a spike in traffic in its tracts that started in January.
"We've experienced sustained momentum," said Karen McCaffrey, vice president. "It is not just one or two isolated weekends of shoppers and buyers."
The homebuilding industry has been suffering. Statewide, December sales were off 55% year-over-year and 16% month-to-month.
Thousands of construction jobs have been lost as builders grapple with one of their worst years on record.
That is why they lobbied for the new $10,000 statewide tax credit, which is similar to an incentive in 1975 that boosted sales almost immediately.
Mike Miller, division president of Lennar Homes in Fresno, reported selling 14 houses last week and expects more as people take advantage of the $10,000 credit. With $100 million available, the tax credit expires after 10,000 houses are sold using the credit.
"The wave is coming," Miller said. "There are a bunch of fence sitters who will be moving pretty fast."
Cutting down on Fresno's water use
Residents, businesses must conserve more as drought enters its third year...Editorial
Mandatory reductions in water use are in Fresno's future unless March delivers another miracle like the one in 1991. That's when the skies opened and dumped 7.24 inches of rain -- more than three times the normal for March -- on Fresno and the Valley.
That sort of reprieve from Mother Nature is unlikely this year, which means residents and businesses in Fresno should get used to the notion of using less water -- 25% less, to be precise.
That's the mandatory reduction called for in the city's so-called Stage 2 rules for times of drought. We're already in Stage 1, under which homes and businesses are asked to voluntarily cut back water use by 10%
With Stage 2, stricter rules and tighter enforcement come into play. Watering times for lawns and landscaping will be cut back, perhaps to one day a week, as is the rule in winter time.
The city will also have to find the resources to do more enforcement, which won't be easy in these tight budget times.
The biggest problem in trying to cut back water use is the long legacy of waste in Fresno. We're still not using residential water meters everywhere to help control the amount we use. For decades we've fooled ourselves into thinking that water was an inexhaustible resource, ours to use and misuse as we liked.
More people practice the wiser ethic of conservation these days, but it would be hard to find a neighborhood that doesn't have at least one atavistic household whose occupants believe it's their birthright to run water into the gutter and down the street. That sort of waste must stop.
City plans call for educating water wasters first, before resorting to fines and other penalties. That's good, but it must be clear that there are steps beyond just asking nicely if residents or businesses resist making voluntary changes.
The situation is serious. Fresno gets around 40% of its water -- some 60,000 acre-feet -- from Millerton Lake each year. The lake is so low right now that we may get only about 15,000 acre-feet. That adds up to a severe shortage.
In addition to stricter rules and stepped-up enforcement, the city ought to be looking at ways of accelerating the installation and use of residential water meters. It may be that some portion of any federal stimulus money that finds its way to the city could be used for that purpose, if it means hiring more people to do the work of installing meters.
We've lived so long with our profligate water ways that it will be hard for many to adjust. Paying low flat rates, which don't vary no matter how much water we use -- or waste -- is a luxury we can no longer afford. The debate over new storage facilities now under way statewide is one we should all be a part of, but it is in conservation right here at home that all of us can have the most direct impact.
We need to dump old habits and start forming new ones, and fast.
Pacific Ethanol's capacity slashed...Dale Kasler
With the shutdown of two more plants, Sacramento's Pacific Ethanol Inc. is operating at about one-quarter capacity in an industry struggling with depressed profit margins.
The company still boasts it's the "largest West Coast-based marketer and producer of ethanol," but lately it's been in retreat. Last week, it announced it is suspending production at plants in Stockton and Burley, Idaho. A month earlier, it halted operations in Madera.
That leaves just one wholly owned plant in operation, in Boardman, Ore., plus a 42 percent share in a still-operating Colorado plant. The company has effectively slashed its annual production capacity to 60 million from 220 million gallons, said vice president Paul Koehler.
Meanwhile, the company has obtained forbearance agreements with two major lenders. The agreements will prevent any loan defaults through March 31 while the company attempts to negotiate new loan terms.
"We're negotiating with our debt holders and trying to operate the (plants) so when the margins return we're poised to turn them back on," Koehler said.
Producers got squeezed between falling ethanol prices and the rising cost of corn, the raw material used to make the fuel additive. One of the largest ethanol producers, VeraSun Energy of Sioux Falls, S.D., filed for Chapter 11 bankruptcy protection in October.
Ethanol prices have stabilized and corn has dropped, but the margins are still too weak for many producers, said analyst Rick Kment of the DTN commodities news service in Omaha. Ethanol prices tend to rise and fall with the price of gasoline.
"Things are not bouncing back," he said.
Pacific Ethanol's stock closed Monday at 29 cents a share, down 5 cents, on the Nasdaq market.
The continuing drama of Pacific Ethanol…Dale Kasler, Home Front
It's a long way from AIG and the Dow's meltdown, but Sacramento's own Pacific Ethanol Inc. is continuing to go through some very tough times.
In case you missed it, our colleague Bobby Caina Calvan had this report last week about Pacific Ethanol suspending operations at two more plants, including one in Stockton.
Along with an earlier shutdown, the ailing company is now operating at about one third capacity, vice president Paul Koehler told me today.
Analysts say things won't improve until ethanol profit margins recover. Of course, that probably won't happen until gasoline prices go up a lot more.
Court says Valley meets air standard...The Record
FRESNO - A federal court ruled Monday that the San Joaquin Valley has met a standard for particulate matter, pushing aside a legal challenge by environmentalists, air officials said.
The 9th Circuit Court of Appeals decision supported the Environmental Protection Agency, which found in 2006 that the Valley had met the federal standard for dust, soot and smoke known as PM10.
Environmental law firm Earthjustice challenged the EPA's original decision, citing dates on which particulate standards were violated because of blowing dust.
But the court found that two spikes were natural events that were beyond anyone's control, the air district said.
"Each time the district is taken to court by a group challenging our progress, we are vindicated at the highest legal levels," said Seyed Sadredin, the air district's director.
Earthjustice fired back, saying the decision was a "victory for polluters and a sad day for the Valley's breathing public."
San Francisco Chronicle
Wet February helps water supply, but not enough...Peter Fimrite
(03-03) 04:00 PST Phillips, El Dorado County -- The storms pounding the Bay Area and blanketing the Sierra Nevada with snow have brought California back from the brink of the worst drought in state history, but the drenching is not enough to assure adequate water supplies this summer, state water officials said Monday.
The water content of the Sierra Nevada snowpack - the backbone of the state's water supply - is about 80 percent of normal for this time of year, according to measurements of water content at several backcountry spots.
That's a turnaround from a month ago, when the water content measured just 61 percent of normal after the eighth-driest January on record had the state teetering on a the edge of its worst-ever water crisis.
"While the storms that we had in February have certainly improved our circumstances over the first of last month, we still have a long way to go," said Frank Gehrke, chief of snow surveys for the California Department of Water Resources. "Reservoir storage is still way below average, and the likelihood of large-enough storms to have significant recovery drops way off as we move into March."
Elissa Lynn, a meteorologist for the Department of Water Resources, said the water content in the snow would have to be between 120 to 130 percent of normal by April 1 to replenish the state's reservoirs, the largest of which are less than half full.
"That's just the snowpack," Lynn said. "We need to have rainfall in the mountains continuing through the spring, contributing to the total water supply. That's what we had hardly any of last year."
Rain and snow would have to fall virtually every day this month to get back to normal, a highly unlikely scenario, according to Steve Anderson, meteorologist for the National Weather Service.
Couple of feet of snow
He said rain is expected to continue until Thursday. A couple of feet of snow probably will fall above 7,000 feet in the coming days. The weekend and the first half of next week should be dry, and precipitation is expected to be about average for the next two months, he said.
So far, 25 California water agencies have imposed mandatory water restrictions, including the East Bay Municipal Utility District; 66 others - including San Francisco - have voluntary restrictions in place.
Gov. Arnold Schwarzenegger declared a statewide drought emergency last week and urged cities to reduce water use by 20 percent as experts predicted that snowmelt runoff this spring will be just 57 percent of normal. The latest snow survey does not change the dire predictions, Gehrke said Monday.
Still, the measurements of snow depth and water content at Phillips Station, a state measuring site next to the Sierra-at-Tahoe resort, left Gehrke and his colleagues at least moderately optimistic, especially after meager results earlier in the year.
The snowpack was 101 percent of normal at the station, a privately owned cabin off Highway 50. Most of the other surveys came in a bit below normal for an overall average of 80 percent, Gehrke said.
Such measurements are a key indicator of how much water will be available during the dry summer months because as much as 60 percent of the state's water is contained in its snow-covered mountains during the wet season.
When the snow melts in the spring and summer, the water is used to irrigate 775,000 acres of farmland and quench the thirst of California's 36 million people. About one-fourth of the state's power comes from hydroelectric plants that count on heavy mountain runoff.
The measurement at Phillips Station is considered the key measure of water availability in the state. If snowpack is abundant, chances are there won't be a drought.
But nature rules
But nature showed last year that it makes it's own rules. On March 1 the snowpack was 136 percent of normal. Then it stopped snowing, and the state ended up the year with water supplies far below average, Gehrke said. Runoff last year was 58 percent of normal.
January was the Achilles heel of 2009. Lynn said January storms usually douse California, accounting for 18 to 20 percent of the state's annual precipitation. Instead, the month delivered a string of dry, sunny days this year.
The recent storms have left San Francisco at 88 percent of its normal amount of rainfall for this time of year; Oakland is 91 percent of normal. San Jose is just behind, at 86 percent of normal and Santa Rosa is 69 percent of normal.
Two - and maybe three - consecutive dry years come at a difficult time for the state's water supply system. Also hampering water distribution has been aging infrastructure and court-ordered reductions in water pumped through the Sacramento-San Joaquin River Delta - and the state's population continues to grow.
"We can look at this storm and say 'this is good,' but it doesn't mean we can count on it to alleviate the drought conditions," Lynn said. "Last year the rain shut off March 1. We don't want to see that happen again."
Los Angeles Times
Endangered Species Act change under review
Obama may reverse a Bush-era revision that loosened environmental rules for federal projects...Jim Tankersley
Reporting from Washington — The White House will announce today that it is reconsidering another controversial last-minute environmental rule by President George W. Bush, an Obama administration official said Monday night.
The Bush-era rule loosened the way the Endangered Species Act guides federal projects, such as roads and dams. The change, finalized in December, eliminated a requirement that federal agencies consult with experts about potential effects on endangered plants and wildlife before allowing projects to go ahead. Instead, federal agencies can determine on their own whether their projects would harm protected species.
A major spending bill speeding through Congress includes language that would empower President Obama to reverse the rule. Without congressional action, the administration would need to undertake a lengthy process to roll back the rule.
The move is Obama's latest step toward reversing Bush's environmental policies. Shortly after his inauguration, Obama ordered all pending Bush regulations to be frozen, including the loosening of some air quality standards and the removal of the gray wolf from the endangered species list. Obama's Interior Department has canceled oil and gas drilling leases near national parks and paused efforts to open coastal areas for drilling and Mountain West oil shale for development.
Obama also directed the Environmental Protection Agency to reconsider its denial of California's request to regulate greenhouse gas emissions from automobiles. The EPA will hold a public hearing this week, which could result in the state imposing stricter regulations on automakers.
The chairman of the House Natural Resources Committee, Rep. Nick J. Rahall II (D-W. Va.), lauded Obama on Monday night for moving "to restore the protections for endangered species that the Bush administration spent so many years trying to undermine."
Environmentalists said Bush's decision removed a crucial layer of protection for endangered species. Business and industry lobbyists countered that it eliminated unnecessary delays in projects without harming species.
Then-Interior Secretary Dirk Kempthorne admitted that the move divided Interior officials. The new Interior secretary, Ken Salazar, said in a January interview that he wanted to reconsider the rule.
Aiming for trouble in our national parks
A rule allowing concealed weapons in the wilderness areas is loaded with dangers and should be suspended...Editorial
Absolutely no good can come from a late-term Bush administration rule change allowing concealed weapons in national parks, a move that endangers the lives of park employees and visitors, encourages poaching and will probably worsen damage to archaeological treasures. The only justification we can imagine for this politically motivated breach of the public trust is that if campers are as careless with their guns as they are with their picnic baskets, it will finally guarantee the right to arm bears.
After a lawsuit from retired park workers, gun-control activists and conservationists, Interior Secretary Ken Salazar ordered an internal review of the rule change to determine whether the Bush administration followed proper procedures in approving it. That's a fine start, but not enough, especially given that the new administration's Justice Department is seeking to block a preliminary injunction of the rule.
Until Jan. 9, firearms were allowed in national parks and monuments only if they were kept unloaded and out of easy reach, such as in a car's trunk. Under the new rule, those with permits to carry concealed weapons can do so in parks, if the state in which the park is located allows it. The impact of this rule change should have been obvious to those who drafted it; ancient petroglyphs that are already used by some for target practice will become even more bullet-scarred, rangers will have to cope with armed and dangerous visitors, wildlife will come under fire and campers will have to worry that the rude guy in the Winnebago next door is packing heat.
The Bush administration changed the rule under pressure from the National Rifle Assn., which is determined to abolish even the most common-sense restrictions on gun rights. The NRA disingenuously argued that park visitors needed concealed weapons for self-defense, even though before the rule change, national parks were among the safest places in the country.
Because the rule change was published in the Federal Register, overturning it could take years. Salazar will have to start the entire rule-making process over, this time carrying out a proper environmental review, a detail that his predecessor omitted in his headlong rush to placate the gun lobby. Meanwhile, though, Salazar can and should suspend implementation of the rule until the process is complete. That would allow national parks to remain the refuges they were intended to be.
Teamsters seeking to organize port truckers
The union protests what it calls the wrongful termination of some drivers as firms at the L.A. harbor move to a new employee model...Evelyn Larrubia
About 50 protesters marched into the offices of a Port of Los Angeles freight hauler today and demanded the reinstatement of four truckers who they said were wrongfully terminated.
The small demonstration at Swift Transportation in Wilmington is part of a new effort by the Teamsters to organize some port drivers, less than six months after they were hired as employees under new city requirements for drayage firms.
Among those who attended the demonstration Monday was City Councilwoman Janice Hahn, who is running for reelection today.
In October, the port implemented its Clean Trucks Program, which requires the phaseout of older, polluting diesel trucks and, more controversially, elimination of the decades-old practice of hauling freight containers by so-called owner-operators -- drivers who owned their rigs and were paid by the job.
Under the new concessionaire agreements, shipping companies that do port drays will have to employ 20% of their drivers by the end of the year and 100% by 2012.
In the face of these changes, the Teamsters and labor and community activists staged work actions at Swift and port drayage company Southern Counties Express, which have purchased hundreds of new, clean trucks under subsidies for use in the port.
"As they move to this employee model, they want to have these drivers do exactly the same thing -- violate the law -- as they did as independent contractors," said Chuck Mack, ports division director of the International Brotherhood of Teamsters. "No breaks. No lunches. Haul the overloads. Drive excessive hours."
Bismark Sanchez Jr., 21, of Gardena, said he was among the first group of truckers hired by Swift when it began its L.A. port drayage operation last fall. He was fired Feb. 9.
Sanchez said the company accused him of damaging the tires on a manager's Dodge Charger, but he said he was fired for encouraging co-workers to speak up when they were mistreated and because he was involved with the union.
Sanchez said drivers were asked to stay late but weren't paid overtime. He said many drivers were told to take loads that exceeded weight limits. "They've been mistreated for so many years they don't know what right is," Sanchez said.
A Swift spokesman declined to comment, saying it would be improper to discuss personnel matters.
The Teamsters filed a complaint against the firm with the National Labor Relations Board, saying Sanchez and the others were fired in retaliation for union involvement.
The Swift protest came one week after a similar demonstration at Southern Counties Express. There, workers and activists tried to deliver a petition that demanded that the company stop using employment agencies and hire drivers directly. They also claimed that a worker was fired improperly.
"I'm not going to accept anything from a mob," owner Brian Griley said. He was miffed that he was being singled out and insisted the truckers were getting a better deal through the labor brokers, because they had the support staff to handle complicated scheduling and human resource matters.
"We're not playing games with the guys. We're trying to give the guys things they didn't have before," he said.
But port officials say that using employment agencies doesn't meet the program's requirement that companies employ staff drivers.
The Teamsters' Mack said many of the truckers who had become involved with the union had participated in the Clean Trucks campaign, and testified at hearings about poor working conditions.
Port truckers were unionized before deregulation allowed the industry to move to independent contractors, Mack said. Later efforts to unionize the drivers failed because, as independent contractors, they had no employer with which to bargain. What's worse, Mack said, is that if drivers discussed higher pay rates among themselves, they could be considered in violation of antitrust laws.
The switch to an employee-driver system makes union membership possible for the drivers, in the same way that a switch to third-party payers of home health aides made that group eligible for union representation years ago.
But Mack said that did not mean all of the truckers would necessarily join unions.
"This is not the campaign that you say: 'All you guys run down and organize workers,' " he said. "It's one more step on a long path."
Case May Define When a Judge Must Recuse Self
W.Va. Justice Ruled for a Man Who Spent Millions to Elect Him...Robert Barnes...3-2-09
BECKLEY, W.Va. -- Hugh Caperton was born into the coal business, but for more than a decade he has spent more time in a courthouse than in a mine. The complex, intrigue-filled legal tale he will present to the Supreme Court this week was literally enough to spawn a suspense novel, but it boils down to this:
Caperton and his little coal company sued a huge coal company on claims that it unlawfully drove him out of business, and a jury agreed, awarding him $50 million.
That company's chief executive vowed an appeal to the West Virginia Supreme Court -- but first, he spent an unprecedented $3 million to persuade voters to get rid of a justice he didn't like and elect one he did.
That justice provided the decisive vote in overturning Caperton's multimillion-dollar award.
And the case raises profound questions about the way Americans elect their judges, the duty of judges to recuse themselves when the people who bankrolled their campaigns come before them and, even, the very meaning of judicial impartiality.
The facts are so compelling that John Grisham used them as a basis for his bestseller "The Appeal." On opposing sides during oral arguments Tuesday will be two of the court's most prolific and persuasive practitioners, former solicitor general Theodore B. Olson and Andrew L. Frey.
But the implications go far beyond West Virginia, energizing critics of the multimillion-dollar political campaigns that are now the norm in many of the 39 states that elect judges, where no-holds-barred television advertising has replaced the staid and polite debates of the past. Among the outpouring of supporters for Caperton are a number of unlikely compatriots -- Wal-Mart siding with the Brennan Center for Justice at the New York University School of Law, for instance.
"It's about the fundamental responsibility of the judiciary: a fair hearing before an impartial arbiter," said James Sample of the Brennan Center. "This is a fact-bound, multi-factor, worst-of-the-worst scenario; if any sort of floor exists for due process, this is the best case to plumb those depths."
But the facts, according to Caperton's nemesis, Don Blankenship, chief executive of A.T. Massey Coal Co., are these: Blankenship made lawful contributions to and on behalf of now-Justice Brent Benjamin. As in other political causes he has supported, he has a right to his political views about who is best to serve on the West Virginia Supreme Court.
And there is no evidence that Benjamin had anything to gain financially from the dispute between Caperton and Blankenship, the only reason for recusal the Supreme Court until now has recognized.
Blankenship attorney Frey, in his brief to the court, rejects arguments from Caperton that Benjamin had an obligation to recuse himself because of bias or "the probability of bias" or because he owed Blankenship a "debt of gratitude."
"Such a theory . . . would have no limiting principle, would be entirely unworkable and would create serious administrative problems for courts," Frey wrote.
He spins an intriguing set of conflicts. Should a judge sit on a case involving a newspaper that endorsed his campaign? Is recusal necessary when one party is an interest group that worked for the judge's election? If the justice Blankenship worked so hard to oust had been reelected, would he harbor such animus that he should recuse himself from the case?
"If 'probability of bias' were the constitutional standard," Frey wrote to the justices, "many members of this court would quite likely have been acting unconstitutionally by participating in numerous cases decided over the past 200 years."
Caperton attorney Olson dismisses such a "slippery-slope/parade-of-horrible argument" as a distraction.
"The thing I ask people is: 'If you had an important case coming up and your opponent gave $3 million to elect the judge who was going to decide it, would you think that was fair?'" Olson said. "I haven't met a person yet who thinks that's fair."
Caperton said that certainly was his thought in 2006, the first time he entered the ornate chambers of the West Virginia Supreme Court.
His legal battles had been largely successful to that point, despite what he said was an early warning from Blankenship. "He said, 'I spend a million dollars a month on attorneys, and I'll tie you up for years in court,' " Caperton said. " 'Every expert you get, I'll find three.' "
Blankenship and Benjamin declined to be interviewed.
Nevertheless, Caperton convinced juries in Virginia and West Virginia that Massey Coal's business tactics -- including buying Caperton's coal purchaser and canceling contracts -- had unlawfully driven Caperton out of business.
Blankenship appealed to the West Virginia high court, but not before he got heavily involved in its 2004 elections. Although he gave only the allowed maximum $1,000 to Benjamin's campaign, he formed a political fundraising organization to "beat Warren McGraw," a longtime state politician and justice who was up for reelection and would be Benjamin's opponent.
The $3 million Blankenship spent on the race was more than all of Benjamin's other contributors combined. Blankenship and business groups supported Benjamin, labor unions and defense lawyers supported McGraw, and the result was one of the nastiest races in state history.
"I'd been in some of the meanest campaigns in West Virginia," said McGraw, who has served in many state political offices and is now a judge in tiny Pineville. "But this campaign for the Supreme Court was without honor."
Though Blankenship's dispute with Caperton was in the background of the race, the ads portrayed McGraw as voting to release a child molester: "Letting a child rapist go free? To work in our schools? That's radical Justice Warren McGraw."
Benjamin, the first non-incumbent Republican elected to the court since the 1920s, declined to recuse himself when Blankenship's appeal reached the court. "No objective information is advanced to show that this justice has a bias for or against any litigant . . . or that this justice will be anything but fair and impartial," he wrote.
So when Caperton entered the court that day and looked at the five justices who would decide his case, he saw one whose campaign was financed by Blankenship and another rumored to be one of Blankenship's best friends.
"I'm not thinking due process and I'm not thinking 14th Amendment; as a citizen I'm sitting there saying, 'How in the world? I've got two votes against me and we haven't even started yet,' " Caperton said.
The court reversed the award, 3 to 2, saying among other things that the suit was not filed in the proper jurisdiction.
But that was only the beginning of what became something of a meltdown on the West Virginia Supreme Court.
Caperton's attorney received photos of Blankenship and Justice Elliott "Spike" Maynard, the one with whom he was rumored to be friendly, at a dinner on vacation on the French Riviera. And Justice Larry Starcher was quoted in the New York Times saying Blankenship's bankrolling of Benjamin's campaign made him want to "puke."
A rehearing was scheduled, with two circuit judges taking the places of Maynard and Starcher. The vote again was 3-2, with Benjamin again casting the decisive vote.
"I just want a hearing in front of an impartial court of justices," Caperton said, and his petition asks for a remand to the West Virginia Supreme Court, without Benjamin.
Caperton has drawn lopsided support in the case from legal and business groups, as well as those who worry about the role money now plays in judicial elections.
Wal-Mart joined with Lockheed Martin, Pepsi and other corporations on Caperton's side, telling the court in a brief that requiring Benjamin's recusal "would signal to businesses and the general public that judicial decisions cannot be bought and sold."
Justice at Stake, a judicial reform group that has been sounding the alarm about the role of money in judges' races, notes that the amount of money raised by state supreme court candidates from 2000 to 2007 was almost $168 million, nearly double that raised during the 1990s. Former Supreme Court justice Sandra Day O'Connor is among those sharply critical of those elections.
The Justice at Stake brief, joined by Common Cause, the League of Women Voters and a host of others, warns the court that it would "weaken state reform efforts" to find no "constitutionally significant threat to equal justice" in the case.
Frey said the real goal of those lined up against his client is their desire that judges be appointed, not elected. "I'm no fan of judicial elections either, but it's not the job of the Supreme Court" to decide that, Frey said.
The other side, Frey said, would erase the "presumption that a judge really will be impartial." And he said that in all the briefs filed on behalf of his opponent, no one proposes a clear line for what level of support -- be it financial or editorial or even gratitude to the chief executive who appointed a judge -- to call that presumption of impartiality into question.
When should judges step aside? Justices weigh case...MARK SHERMAN, The Associated Press
WASHINGTON -- Concerned about dwindling confidence in the impartiality of judges, the Supreme Court leaned Tuesday toward forcing elected judges to step aside from cases that would raise an appearance of bias if they took part.
"Our whole system is designed to ensure confidence in our judgments," said Justice Anthony Kennedy, often the crucial vote on the divided court. Large campaign contributions in judicial elections are undermining faith in judges, several justices said.
During lively arguments in a closely watched case from West Virginia, the court's four liberal justices and Kennedy all expressed support for a ruling that the Constitution's guarantee of a fair trial could require judges not to participate in a case in which there was a likelihood of bias.
The West Virginia case involved more than $3 million spent by the chief executive of Massey Energy Co. to help elect state Supreme Court Justice Brent Benjamin at the same time his company was appealing a verdict, which now totals $82.7 million with interest. Benjamin refused to step aside from the case, despite repeated requests, and was part of a 3-2 decision to overturn the verdict.
Even as the high court struggled to find the right standard that would trigger recusal, the term for a decision to step aside, Justice John Paul Stevens indicated that the facts made the decision easy in Benjamin's case.
"We have never confronted a case as extreme as this before," Stevens said, invoking former colleague Potter Stewart's line about pornography. "This fits the standard that Potter Stewart articulated when he said 'I know it when I see it.'"
Arguing strenuously against that view were Chief Justice John Roberts and Justice Antonin Scalia.
Former Solicitor General Theodore Olson was three sentences into his argument Tuesday representing the other party in the Massey lawsuit, Harman Mining Co., and its president, Hugh Caperton, when Scalia cut in.
The Constitution's right to a fair trial, Olson said, includes "a guarantee against even the probability of an unfair tribunal."
"Who says?" Scalia said.
Scalia wrote at length five years ago to explain why he would participate in a case involving then-Vice President Dick Cheney, rejecting calls that he step aside because the two had gone duck hunting together. "My recusal is required if ... my impartiality might reasonably be questioned," Scalia said then, dismissing the possibility because he spent little time with Cheney on their trip to Louisiana.
Federal judges are guided by a law that leaves recusals up to them, just as Benjamin made his decision on his own. Financial conflicts leave no room for discretion; judges can't sit on a case involving a company in which they own shares, for example.
Scalia said the court should not invoke the Constitution when there is no actual bias _ a financial interest, say _ requiring a judge to get off a case.
"We're being urged to adopt out of nowhere a new standard of probability of bias. It's not in the Constitution," Scalia said.
Financial holdings in a company appearing before the court are the most frequent reasons that cause justices to stay out of cases. Roberts and Justices Samuel Alito and Stephen Breyer have had to sit out cases in recent terms because of their investments.
The court's decision could have widespread significance. Judges are elected in 39 states and candidates for the highest state courts have raised more than $168 million since 2000, according to Justice at Stake, which tracks campaign spending in judicial elections.
The Conference of Chief Justices, representing the top judges in every state, set out seven factors for the Supreme Court to consider, include the size of the contribution and its timing.
Andrew Frey, a veteran Supreme Court advocate who represented Massey, asked the justices to put themselves in Benjamin's shoes in an argument that also noted the justices decide for themselves whether to participate in cases.
"Do you really think you'd be incapable of rendering an unbiased decision?" Frey said.
The highly experienced Olson said Frey posed the wrong question. The justices should consider whether they would want to be judged by someone who was "selected with a $3 million subsidy by your opponent," Olson said.
Olson argued that several factors combine to create an "overwhelming probability" that Benjamin would not be impartial, including the size of the campaign support and the fact that it represented more than half the money spent on his behalf. The money mostly went to an independent group that ran television ads against Benjamin's opponent.
Massey rejects assertions that Benjamin owed a debt of gratitude to chief executive Don Blankenship or that Benjamin displayed any bias in his ruling. Benjamin has ruled against Massey at least four times, including in a unanimous refusal to hear the company's appeal of a $260 million judgment won in another contract dispute.
Former judges and interest groups on both sides of the debate over campaign contributions have weighed in on the dispute. Wal-Mart and Pepsico were part of a brief of businesses asking for a ruling that Benjamin should have removed himself from the Massey case. Alabama, Colorado, Delaware, Florida, Louisiana, Michigan and Utah urged the justices to let the states work out their own rules.
A decision is expected before July.
The case is Caperton v. Massey, 08-22.
Obama Reverses Bush Rule on Protection of Endangered Species...Juliet Eilperin
In a move that will subject an number of government projects to enhanced environmental and scientific scrutiny, President Obama is restoring a requirement that U.S. agencies consult with independent federal experts to determine whether their actions might harm threatened and endangered species.
The presidential memorandum issued yesterday, which marks yet another reversal of President Bush's environmental legacy, will revive a decades-old practice under the Endangered Species Act that calls for agencies to consult with either the Fish and Wildlife Service or the National Oceanic and Atmospheric Administration on whether their projects could affect imperiled species. On Dec. 16, the Bush administration allowed agencies to waive such reviews if they decided, on their own, that the actions would not harm vulnerable plants and animals.
Obama, who visited the Interior Department to commemorate its 160th anniversary, said he had instructed Interior and Commerce Department officials to review the Bush rules. In the meantime, according to the memorandum, officials should "follow the prior longstanding consultation and concurrence practices" that call for independent reviews. "The work of scientists and experts in my administration, including here at the Interior Department, will be respected," Obama said. "With smart, sustainable policies, we can grow our economy today and preserve the environment."
Environmentalists and scientists welcomed the move, but business officials said it could delay federally-funded projects that could help revive the nation's economy: all of them agreed it would prompt a second look at several initiatives adopted by the Bush administration in its final months in office.
Earthjustice lawyer Jeanette Brimmer, whose law firm had challenging the Bush rule in federal district court in California, said she expected the new administration would reexamine two pending projects: a Bureau of Land Management plan for overseeing Oregon's forests, which was finalized on Dec. 30 and could affect protected species such as the northern spotted owl; and construction of the White Pine coal-fired power plant in Nevada.
"I think the Obama administration now is going to take a step back on these projects. It needs to bring science back into the equation," Brimmer said, adding that her group will not drop its lawsuit until it can assess how the new policy is working.
Francesca Grifo of the Union of Concerned Scientists, an activist group, said the switch would help guard against the potential conflicts of interest and lack of expertise that could color decision making by any agency hoping to press ahead with a particular project. "After years of scientific scandal, the Interior Department and its partner agencies need desperately to regain credibility by making decisions with honesty, clarity, and transparency," Grifo said.
But Bill Kovacs, the U.S. Chamber of Commerce's vice president of environment, technology and regulatory affairs, said reviving another layer of review "will result in even greater delays to projects -- including stimulus-backed, job-creating projects -- as agencies now grapple with the prospect of lengthy inter-agency consultations to determine, for instance, if a bridge project in Florida contributes to the melting of Arctic ice. This is such a departure from the spirit and the letter of the Endangered Species Act that we wonder if the law's drafters would even recognize it today."
The latest policy shift follows several other administration actions revamping environmental policies, including a reexamination of federal fuel economy standards and offshore oil drilling; a new review of whether to grant California and other states the right to regulate greenhouse gas emissions from vehicles; and the endorsement of a new international treaty negotiation on global mercury emissions.
House Natural Resources Committee Chairman Nick J. Rahall (D-WV), who had been seeking to overturn Bush's endangered species rule through legislation, called the announcement "one more indication that the new administration truly represents change for the better and is committed to the protection of our natural resources and our environment."
Administration officials said the move is not likely to trigger broad use of the Endangered Species Act to regulate greenhouse gas emissions. While the Bush rule specifically prohibited endangered species consultations on the basis of "global processes" such as climate change, an Interior official who asked not to be identified said under the new policy such a review would only be triggered if scientific evidence suggested "a causal connection" between emissions from a federal project and its effect on specific imperiled species or an identifiable part of its habitat.
New York Times
Justice Not for Sale...Editorial
The Supreme Court hears arguments Tuesday in a case that goes to the heart of the nation’s justice system and the rule of law: the right to a fair hearing before an impartial judge, untainted by money or special interests.
The case involves a brazen — and so far successful — attempt by the chief executive of a large coal company to overturn a major damage award against his firm. A West Virginia jury decided that the coal company, Massey Energy, had fraudulently driven a small competitor, the Harman Mining Corporation, into bankruptcy proceedings. Massey’s chief executive, Don Blankenship, decided to appeal. But before that, he spent an extraordinary $3 million to help elect a member of West Virginia’s State Supreme Court, Brent Benjamin.
When Massey’s case came before the West Virginia court, Mr. Benjamin declined to do the right thing and recuse himself. “No objective information is advanced to show that this justice has a bias for or against any litigant,” he wrote. Mr. Benjamin subsequently cast the deciding vote to toss out the award against Massey.
This case offers the nation’s top court the opportunity to make clear that judges who receive outsize campaign contributions have a duty to recuse themselves. Although not all contributions implicate due process, Mr. Blankenship’s multimillion-dollar quest to tilt the scales of justice surely does. It is vitally important for the Supreme Court to say so.
Sadly, the West Virginia case, while extreme, points to an alarming trend. It comes at a moment when judicial neutrality — and the appearance of neutrality — basic to due process are under a growing threat from big-money state judicial campaigns and the special-interest contributions that fuel them.
Thirty-nine states elect at least some of their judges. Recent years have seen a proliferation of multimillion-dollar judicial races, replete with nasty attack ads and all of the other accoutrements of sleazy partisan politics. This sort of low politics is bad enough in campaigns for legislatures and statehouses. But it must be kept as far away as possible from the nation’s courthouses.
This case has drawn an unusual array of friend-of-court briefs from lawyers, jurists and business groups, including the Brennan Center for Justice, the Committee for Economic Development and the Conference of Chief Justices. A wise decision would recognize the threat posed by record-breaking fund-raising for judicial elections — and make clear that judges and justice are not for sale.
Obama Suspends Bush Rule on Endangered Species...Kate Galbraith, Green Inc.
President Obama today asked federal agencies to consult with wildlife biologists over decisions that may affect threatened or endangered species.
The memorandum effectively suspends a December 2008 rule issued by the Bush administration, which waived requirements that agencies like the Army Corps of Engineers consult with experts at the Fish and Wildlife Service or the National Marine Fisheries Service when undertaking projects like building dams.
Today’s decision did not throw out the Bush administration rule, which had prompted lawsuits from California and a number of environmental groups. Instead, Mr. Obama asked that the secretaries of commerce and the interior “review” the Bush regulation and determine whether new rules are needed.
“Until such a review is completed,” Mr. Obama wrote, “I request the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices” involving the Fish and Wildlife Services and the National Marine Fisheries Service.
The Sierra Club reacted with unmitigated joy.
“These midnight regulations represented all the disdain for science and political trumping of expertise that characterized the Bush administration’s efforts to dismantle fundamental environmental laws,” said Carl Pope, the Club’s executive director, in a statement.
“Our wildlife are clearly in much better hands now,” he continued. “President Obama is bringing science back into decision-making.”