Badlands Journal
Opinions differ on feds' biological opinion on Central Valley salmon...Badlands Journal editorial board
The California Sportfishing Protection Alliance
For immediate release:
6 June 2009
For information:
Bill Jennings, CSPA Executive Director, 209-464-5067, 209-938-9053 (cell)
Michael Jackson, CSPA Attorney, 530-283-0712, 530-927-7387 (cell)
NMFS Biological Opinion for Salmon Step in the Right Direction but Not Sufficient to Restore Fisheries
(Stockton, CA) Today, the National Marine Fisheries Service (NMFS) released its long awaited Biological Opinion (BO), pursuant to the federal Endangered Species Act, on minimal actions necessary to protect Central Valley salmonid species, green sturgeon and killer whales from extinction.  The 800-plus page BO found that operation of the federal Central Valley Project (CVP) and State Water Project (SWP) was likely to jeopardize the existence of listed species unless substantial alternatives to present operations were implemented.  The BO requires numerous changes in the operation of the water projects, including 5-7% reduction in exports from the Delta.
Bill Jennings, Executive Director of the California Sportfishing Protection Alliance (CSPA), observed that, “the BO is a long overdue but welcome initial step in protecting species hovering on the brink of extinction.  However, it is only a first step.  It is not a recovery plan that will restore seriously degraded fisheries; much more will be required.” 
Jennings added that, Virtually all of the new requirements are measures that environmentalists, fishermen and resources agencies have advocated in numerous proceedings over the last 25 years but were consistently ignored or rejected by the State Water Board, DWR and the Bureau.”  These include measures to eliminate: lethal temperature below rim dams, the problems at Red Bluff Diversion Dam and the Cross-Channel Gates, violation of water quality standards, inadequate flows in both the San Joaquin and Sacramento River systems, excessive predation caused by project facilities and the enormous damage created by reversed flows in Old and Middle Rivers.
CSPA attorney Mike Jackson said, “The BO only evaluates water contributions from the state and federal projects but acknowledges the significant need for contributions from other water users.  Without this additional water, steelhead and salmon will not survive until 2030.  The BO notes that the State Water Board has the authority to require water users to contribute to the restoration of the fishery and urges that the Board take prompt action.”
CSPA urges the State Water Board to take prompt action in implementing the BO's recommendations.
The California Sportfishing Protection Alliance is a public benefit conservation and research organization established in 1983 for the purpose of conserving, restoring, and enhancing the state's water quality and fishery resources and their aquatic ecosystems and associated riparian habitats.  CSPA has actively promoted the protection of water quality and fisheries throughout California before state and federal agencies, the State Legislature and Congress and regularly participates in administrative and judicial proceedings on behalf of its members to protect, enhance, and restore California's water quality and fisheries.
Fresno Bee
Westlands Statement on NMFS Biological Opinion on Salmon
FRESNO, Calif. The following is a statement from the Westlands Water District:
Federal regulators today have imposed an additional, new regime of restrictions, cutbacks and prohibitions on California’s water supplies without performing any environmental analysis of its potentially devastating effects. They have rushed this Biological Opinion into place without bothering to prepare an Environmental Impact Statement, without public hearings or the kind of independent public review that the law requires.
This is a violation of the National Environmental Policy Act and of federal endangered species law.
The Westlands Water District intends to join with other public water agencies in bringing a lawsuit to have this Biological Opinion set aside and to compel the National Marine Fisheries Service to go back and perform the careful analysis it should have done to assess the potential harm this plan could do to public health and safety, communities and the environment.
A partial list of the impacts that the National Environmental Policy Act requires the National Marine Fisheries Service to assess can be found below.
If it were allowed to stand, this Biological Opinion would be a death sentence for large parts of California’s economy. Communities in the San Joaquin Valley are already experiencing 40 percent unemployment rates. This new order is so extreme and far-reaching that its adverse impacts will extend to businesses throughout the state. It will further reduce supplies for homeowners and increase uncertainty for almost everyone who expects to have water when they turn on the tap.
It is certainly not in the best interest of the United States or the Obama Administration to do this kind of damage to California. The implementation of these restrictions will prolong the recession, delay economic recovery, impact the supply of fresh fruits and vegetables as well as other goods and services, and adversely affect consumers throughout the country.
How much more water would this Biological Opinion take away from farms and cities and other environmental needs? The state estimates this new order may cut an additional 500,000 acre feet out of the system every year. But these additional cutbacks would come on top of existing federal restrictions that have reduced California’s water supplies this year by nearly one-third.
In the midst of the current drought, those existing federal restrictions have caused nearly 370,000 acre feet of fresh water to be wasted into the ocean in just the first five months of this year. That’s enough water to meet all the needs of 1.2 million people for a year. Now NMFS proposes to take another 500,000 acre feet out of the supplies that 25 million Californians rely on.
The good news is that because of existing water conditions, the most damaging aspects of the Biological Opinion are not likely to take effect until much later in the year. That means there will be time to ask the federal court to suspend this Biological Opinion and compel the federal fisheries agencies to comply with the law that requires the preparation of a proper environmental impact statement.
As a public agency, we have an obligation to do everything we can to minimize the damage that these new restrictions could do to humans, communities and the environment. The defects of the Biological Opinion demonstrate the folly of pursuing a piecemeal, species-by-species approach to the environmental needs of a complex ecosystem such as the Delta. We need to complete the Bay Delta Conservation Plan (BDCP) as quickly as possible so that we can replace this kind of patchwork with a fully integrated, comprehensive program for repairing the environmental health of the Delta and making the long-term improvements that are need to restore the reliability of California’s water system.
Environmental Impacts that NMFS Failed to Assess--Why an Environmental Impact Statement Is Required
(The National Environmental Policy Act (NEPA) requires that federal agencies undertaking any major action must analyze the environmental effects of that action. (42 U.S.C. § 4332(2)(C).) Thus, it is imperative that the National Marine Fisheries Service (NMFS) first perform an appropriate environmental review of all the changes that the Biological Opinion (BiOp) would impose on the Central Valley Project (CVP), the State Water Project (SWP), and the resulting direct and indirect environmental impacts of curtailing water deliveries throughout most of Central and Southern California, including parts of the San Francisco Bay Area.
Depending on the level of export curtailment, the environmental effects from restriction under the NMFS BiOp would likely include impacts to aesthetics and agriculture from abandoned and fallowed agricultural fields, to air quality from the increased dust and particulate matter from those fields, to biological resources from the lack of water for use for wetlands and species outside the Delta, to geology and soils from the use of lower quality and higher salinity water, to hazards due to land subsidence from overpumping groundwater and lack of water for wildfires, to hydrology and water quality due to lack of imported water for replenishment, and to land use from the curtailment of drinking water supplies throughout California.
Human impacts resulting from chronic and severe water supply shortages are already evident throughout the Central Valley. Unemployment rates through many parts of the Westside exceed Depression era levels. Food lines are becoming all too common in several rural Westside communities and the demand can outstrip the ability of the food banks to provide. Demand for social services is peaking at a time when the ability of local and state government to respond is also severely depressed due to the broader global economic downturn.
The physical environment is also being impacted. In areas of the Central Valley where groundwater is available, concern is focused upon the future effects that salt buildup and subsidence will have upon the soil. Wildlife refuges rely on transfers for up to one-quarter of their water supply, which is now both less plentiful and far more expensive. Non-irrigated fields can often produce dust during the frequent wind events that occur throughout the region, compounding the already significant number of respiratory ailments associated with the San Joaquin Valley, such as asthma. Non-cultivated fallow fields can also provide excellent habitat for non-native plant species such as Russian thistle (aka tumbleweed), which, upon maturity, breaks from the soil and is transported with the wind. This migration can threaten remaining native plant ecosystems, impact crops and infrastructure such as highways and canals, and produce rashes and allergic reactions among people exposed to the noxious weed.
Drought Impacts
Any decrease in water supplies conveyed through and from the Delta that are the result of the NMFS BiOp would greatly exacerbate existing water shortages, as well as the drought’s environmental and economic impacts, and would generate cumulative impacts in conjunction with other recently implemented constraints upon the projects’ operations. Because of the dire water situation in California, these impacts could not be ameliorated by additional conservation measures, since aggressive integrated regional water management, including water conservation and use efficiency, is already being implemented throughout the affected regions, including mandatory water rationing in some areas. It is important that a NEPA review be performed to determine the least environmentally damaging way of meeting the NMFS BiOp’s protection goals.
Impacts on Groundwater
Between the years of 1985 and 2004, even with the use of imported water, groundwater production grew five percent faster than groundwater recharge throughout the extensive service area of the Metropolitan Water District. Reductions in deliveries from SWP have led to increased pumping, reduced groundwater recharge and dropping groundwater levels in many groundwater basins in the San Joaquin Valley and Southern California. Thus, total groundwater storage in the SWP service area, which was already declining, will suffer additional losses if the NMFS BiOp includes increased restrictions on project operations, and such restrictions will almost certainly widen the existing disparity between the recharge and production of groundwater.
Metropolitan annually delivers 200,000 acre-feet of imported water on average to groundwater basins for dry-year storage and to prevent groundwater overdraft and its concomitant environmental impacts. If the NMFS BiOp includes additional restrictions on SWP operations, very few years will have Northern California water available for storage and overdraft prevention, effectively eliminating this tool and thus exacerbating future droughts.
Groundwater basins in Southern California that are routinely recharged with imported water are generally able to maintain groundwater production levels for two years after recharge has ceased. Thereafter, local groundwater production declines, and retail water demand then shifts to the local agency for full water service delivery. The rebounded demand on Metropolitan and its member agencies associated with the new NMFS BiOp will compound imported water shortages and substantially increase the potential for water supply rationing and its associated economic and environmental impacts within Southern California.
Impacts on Water Storage
Metropolitan is illustrative of the kinds of impacts the NMFS BiOp will have on water agencies throughout California. Following the 1987-1992 drought, Metropolitan’s Integrated Water Resources Plan established regularly updated strategies for managing shortages. Measures in the Metropolitan plan include contractual groundwater storage programs for SWP water. As of January 2008, Metropolitan had 773,000 acre-feet stored in these programs but, due to shortages caused by drought and court-ordered curtailments, Metropolitan has been drawing down this storage to maintain reliable water deliveries. As of October 2008, storage had been reduced to 664,000 acre-feet, indicating that the emergency supplies of water available to Southern California are rapidly declining even without the anticipated restrictions of the new NMFS BiOp.
Further restrictions on SWP operations would eliminate surplus imported water supplies in almost all years, likely making it impossible to recharge the groundwater storage used to maintain water supply reliability in dry years. Loss of this water management tool would have significant adverse impacts on water supply reliability in Southern California.
Impacts on Recycling
Groundwater basins within the service areas of many water agencies are recharged with recycled water, thereby reducing the demand for imported water. However, each cycle of urban use of recycled water typically adds 250 to 400 milligrams per liter of total dissolved solids. When wastewater flows already have high salinity concentrations, the use of recycled water becomes more limited or will require much more expensive treatment. Consequently, higher quality blend water is required to render this recycled water usable for groundwater recharge and other activities.
Some Regional Water Quality Control Boards have adopted water quality control plans for groundwater basins within their jurisdictions that include water quality objectives for maximum amounts of TDS. When inadequate amounts of high-quality SWP or CVP blend water are available to meet the water quality requirements of these orders for recycled water recharge, recycled water cannot be used for recharge and member agencies must consequently defer or abandon water recharge efforts. Loss of high quality water to blend with recycled water for recharge thus contributes to additional groundwater recharge losses and the growing overdraft of groundwater basins in Southern California and the San Joaquin Valley.
Impacts on Recycled Water Use
Recycled water is also frequently used for landscape and agricultural irrigation and industrial applications. However, such reuse becomes problematic at TDS concentrations of more than 1,000 mg/L. Some crops are also particularly sensitive to high TDS concentrations, and the use of high salinity recycled water may reduce the yields of these crops. In addition, concern for water quality in groundwater basins may lead to restrictions on the use of recycled water for irrigation on lands overlying those basins.
For example, diminished SWP supplies have already resulted in increased TDS concentrations in Metropolitan’s blends, in some instances, and this is impacting the ability to recycle the resulting wastewater. Further reductions in delivered SWP and CVP supplies would result in even greater impacts of this type in other areas as well.
Impacts on Subsidence
The most far-reaching and potentially destructive impacts due to increased groundwater overdraft are land subsidence and earth fissures. Land subsidence is the sinking of the Earth’s surface due to subsurface movement of earth materials. The major cause of subsidence in the southwestern United States is the over-drafting of aquifers. The negative effects of land subsidence include the permanent loss of groundwater storage space and changes in elevation and the slope of streams, canals, and drains.
Additionally, in some areas where groundwater levels have declined, surface streams lose flow to adjacent groundwater systems. These losses entail significant impacts to hydrology, as well as the biological systems that depend on those groundwater or surface flows. Land subsidence can lead to cracks and fissures at the land surface, which may damage bridges, roads, railroads, storm drains, sanitary sewers, canals, levees, and private and public buildings.
Impacts on Agriculture and Food Production
Agricultural operations in Fresno County, Tulare County, Kern County, San Diego County, and other areas of the State rely on Delta water, and this supply of water is already being impaired, with concomitant environmental effects. For example, effective January 1, 2008, Metropolitan called on participants in its Interim Agricultural Water Program to reduce their water use by 30 percent. Major citrus and avocado growers have had to stump or remove trees from their groves in order to comply with the water use reductions. The decreases in water availability for San Diego County agricultural operations as a result of the operational constraints due to delta smelt restrictions resulted in the loss of nearly 2,000 acres of avocados, as just one example.
To the extent the NMFS BiOp imposes further restrictions, even more fallowing and crop destruction will almost certainly occur. Fallowing, in turn, leads to losses in farm jobs, public health impacts, and other effects that must be evaluated before the NMFS BiOp takes effect. Curtailing the imported water supply would reduce crop availability and create economic impacts as farmers idle crops and fallow land.
Impacts on Soil and Air Quality
Land clearing and fallowing would have obvious attendant environmental impacts. Such actions may result in substantial soil erosion and loss of topsoil and additional dust and air pollutions emissions, including in those areas and counties, such as Merced, Fresno, Kern, and Kings Counties, where air quality is already in noncompliance with federal Clean Air Act standards. Additional fallowing and under-irrigation of agricultural lands that could result along the Westside due to further restrictions on project operations could add hundreds of tons per year of wind-borne particulates in the air in the San Joaquin air basin. In addition, the loss of significant amount of agricultural land would be a significant land use change.
Impacts on the Quality of Drinking Water
Because of varying levels of quality in their water sources, some water agencies must manage the salinity of the water they provide in order to maximize water use and meet the demands for drinking water of the citizens they serve.
Metropolitan’s blending practices provide an example of the necessity for high quality Northern California water. Metropolitan has adopted a policy to achieve blends of these source waters that do not exceed TDS concentrations of 500 mg/L. Metropolitan adopted this standard because salinities higher than this level would increase service costs, decrease the amount of water available, and reduce operating flexibility. For example, high salinity water has a residential impact resulting from the increased degradation of water heaters and other plumbing fixtures. Further, direct treatment of saline water without blending is costly and typically results in losses of up to 15 percent of the water processed. In addition, water with a high salinity content results in more saline wastewater, which lowers its usefulness and increases the costs of treating and utilizing recycled water.
Water agencies in the Central Valley must meet similar requirements and face similar costs. For example, unless higher salinity water is treated or blended, it will affect agricultural use and degrade the quality of soils in their service areas.
Impacts on Protected Species
Although a biological opinion’s purpose is to aid the recovery of listed species, if the NMFS BiOp decreases water agency imports, there will be a significant impact on other protected species. For example, the northwestern portion of Kern County is home to 14,000 acres of flooded water habitat, including the Kern National Wildlife Refuge, where migratory birds, including protected and listed species, nest and feed during the fall and winter. An additional 11,000 acres of recharge ponds are located in the Kern River fan area, which provides seasonal habitat during recharge cycles. These complexes depend on the fall and winter delivery of surface water to provide for migratory bird habitat.
If the NMFS BiOp significantly decreases importation of water beyond the limitations in the existing biological opinion, no Northern California water will be available to fill these ponds. Because local surface water supplies to fill the ponds are only available in locally wet years, curtailment of water for the purported benefit of the salmonid species would result in the destruction of this habitat for other protected species.
Another example of protected and listed species that could be harmed by any new restrictions imposed by the NMFS BiOp is found within the boundaries of the Santa Clara Valley Water District, which receives water from both the SWP and CVP. Of the 163 miles of local streams used by Santa Clara for instream groundwater recharge, 129 miles are considered to be habitat for threatened or endangered species, including 32 species of plants, 50 species of wildlife, six amphibians, and three aquatic species listed as special status species under State or federal law.
Local reservoirs, streams, and artificial recharge ponds provide habitat for 11 native species and 19 nonnative species of fish. Populations of protected steelhead trout are known to exist in Coyote Creek, Guadalupe River, Stevens Creek, and San Francisquito Creek and their tributaries.
Santa Clara’s average in-stream flow releases for groundwater recharge are normally about 104,000 acre-feet. If dry hydrologic conditions continue, total groundwater recharge will be limited to approximately 84,000 acre-feet. Any new import restrictions in the NMFS BiOp would reduce this amount still further, significantly impacting these species.
Impact on Wildfires and Public Safety
As aquifers are depleted and imports are further curtailed, affected water districts will be forced to increasingly rely on their remaining water resources. One of the few remaining sources is emergency storage supplies, which water agencies and local districts will be compelled to tap in order to meet their constituencies’ demands. This will put the state at risk because of the compromised ability to ensure adequate flows in the event of large wildfire outbreaks, a large seismic event, major Delta levee failure or other catastrophic occurrence.
The on-going drought conditions have already created a situation of extreme fire danger and have resulted in destructive fires in many areas of the state. Such fires have had, and future fires will continue to have, devastating economic and environmental impacts, including air quality impacts, structure and crop destruction, and landslides.
Water ruling is troubling for ag
President Obama should convene 'God Squad' to override opinion's finding...Editorial
The biological opinion issued Thursday by the National Marine Fisheries Service is troubling for the many things that it does not say.
The rushed opinion will have a huge impact on San Joaquin Valley agriculture, yet the Fisheries Service did not take the time to consider all the factors that are jeopardizing fish populations. That's shoddy work.
This decision plays into the arguments of those who claim the federal government would rather protect fish than humans. We believe endangered species must be protected, but we also think there should be a balance struck when issuing opinions that will cause economic turmoil.
The federal opinion says salmon, sturgeon, killer whale and steelhead are jeopardized by the federal and state water projects. The practical effect of that conclusion would limit water pumped to Valley farmers and Southern California residents. Farmers on the west side of the Valley already are contending with decreased water deliveries because of previous rulings.
Both Democratic and Republicans members of the Valley congressional delegation have condemned the latest opinion.
They have good reason. While the Fisheries Service is blaming the federal and state water pumping for the decline in the fish populations, the agency does not take into account documented factors such as sewage dumping from Sacramento and Stockton, the private pumps that divert water without screens, other pollution from nearby urban areas and the impact of striped bass and other invasive species on the protected species.
It appears this opinion was targeted at agricultural uses only, and that is wrong.
The Obama administration must reconsider this ill-conceived action. One way is to convene the so-called "God Squad." The Endangered Species Act has a provision that would allow a panel of seven Cabinet officials to intervene. They could rule that the economic hardship from reduced water flows overrides protecting the threatened species.
The panel, which is informally called the "God Squad," was added to the ESA in 1978. It has only been used sparingly, but we believe this is exactly the occasion that the provision was intended for.
Officials from the Westlands Water District say they will go to court to overturn the Fisheries Service ruling.
We hope the Obama administration realizes how narrowly drawn this opinion is and how devastating it will be to the small communities that rely on farm water to survive. The president should not ignore the impact that his administration is having on some of the nation's poorest people.
Merced Sun-Star
Merced construction workers depend on the rare small job...JONAH OWEN LAMB
The wood frames of a half-completed garage on East 21st Street stand out not just because of the bright two-by-fours shining in the June sun, but because most other construction in the county has all but ceased.
While little new construction has sprung up in Merced during the past year, small contractors like Warren Murdock's Lynn Douglas Design & Construction, which is building the garage, have kept busy.
Lynn Douglas Design and Construction specializes in smaller jobs like remodeling -- jobs that developers and custom builders had little interest in.
"I'm fortunate that I've got customers that keep us steady," said Murdock as he looked over the job site Thursday afternoon.
But business isn't booming and now contractors of all stripes are scrambling to get any work they can, Murdock said.
Less work and increased competition has meant tough times for everyone.
Mat Harding, who works for Murdock, was building custom homes in Oakdale before the slowdown. Now most of the guys he knows in the building industry are out of work.
He even knows an electrician who has had to take a job at The Home Depot.
For Michael Carter, who runs Carter Construction, work has simply dried up.
His industrial and commercial contracting company in Merced used to have up to eight workers on his crew and two or three jobs at a time, he said.
Now he's had to lay off his crew and feels lucky if something comes along every other month.
Carter's competition increasingly includes contractors who used to build houses, he said.
"We're seeing a lot of the people who would specialize in residential," he said, "now looking for anything they can get."
Carter recently went to a prospective job site and there were more than 40 other contractors there when there used to be only three or four.
New Vision Builders, from Merced, which used to do mainly framing work for local developers, has seen its core business dry up, said Doris Fleitz, a bookkeeper for her son Greg Fleitz's business.
That loss of work has forced them into desperation mode-- and the competition has been fierce, Doris Fleitz said.
That competition has meant everyone is willing to work for less.
"There's no profit margin hardly at all," said Fleitz. "You have to cut the cost to the bare minimum to be able to just pay your bills and keep you from going under."
New construction numbers in the city and county of Merced don't tell a much rosier story.
For the month of May, there was not one building permit issued by the county for a new home.
The city of Merced expects only 25 single-family homes will be built this year. Likewise, it's not expecting to issue any building permits for office, commercial, light industrial or multi-family homes.
Last year, 21 single-family home permits and 12 commercial building permits were pulled.
In a flat-lining industry, Murdock may be one of the few lucky ones.
And that half-completed garage, and smaller jobs like it: his saving grace.
Washington Post
Supreme Court Says Judges Must Avoid Appearance of Bias...Robert Barnes
The Supreme Court ruled today that elected judges must recuse themselves in "extreme" cases where huge campaign contributions create the perception that they will be biased in favor of their campaign benefactors.
A five-member majority of the court decided a West Virginia Supreme Court justice erred in participating in a case overturning a $50 million verdict against a company headed by a man who spent $3 million on the justice's election.
The court today said the perception of bias was so great that it violated the constitutional rights of the man who brought the suit.
"Not every campaign contribution by a litigant of attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case," wrote Justice Anthony M. Kennedy.
The case -- the plot of a John Grisham novel -- has drawn a spotlight on the skyrocketing costs of judicial elections, especially state Supreme Court races. Justice at Stake, a judicial reform group, notes that state Supreme Court candidates -- 39 states elect judges -- raised almost $168 million from 2000 to 2007, nearly double the amount raised during the 1990s.
Among the most prominent critics of the campaign spending is former justice Sandra Day O'Connor, who was in the packed courtroom during oral arguments in the case in March.
Today's decision reinforced the pivotal role of Kennedy, who often is in position to decide controversial cases that divide the court ideologically. In this case, he sided with the court's liberal wing: Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
Kennedy diminished the impact of the decision, saying that state codes of judicial conduct already provide judges with guidelines on recusal, and that "most disputes over disqualification will be resolved without resort to the Constitution."
But the dissenting conservative justices said the decision will cause a flood of lawsuits by the losing litigants in a case, and do "far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case," in the words of Chief Justice John G. Roberts Jr.
He criticized the "inherently boundless nature" of the court's decision, and the list of 40 questions he said the decision did not answer stretched for seven pages of his dissent.
"Today's opinion requires state and federal judges simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratitude?)," Roberts wrote. He was joined by Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.
The case was brought by Hugh Caperton, the owner of a small coal company who convinced a jury that the business tactics of A.T. Massey Coal and its chief executive, Don Blankenship, drove Caperton's company into bankruptcy. The jury awarded $50 million.
In the next statewide election, Blankenship spent $3 million to oppose a state Supreme Court justice he disliked, and to elect newcomer Brent Benjamin. When Massey's appeal of the award came to the high court, Benjamin refused to recuse himself, and twice cast the decisive vote in 3 to 2 decisions overturning the verdict.
Caperton asked the court to send the case back to the West Virginia high court for a hearing without Benjamin. The award at stake is now worth more than $80 million because of interest.
The majority agreed with Caperton. "Just as no man is allowed to be a judge in his own case, similar fears of bias can arise when -- without the consent of the other parties -- a man chooses the judge in his own cause," Kennedy wrote. "And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin's recusal."
The majority did not question Benjamin's own findings of his impartiality or determine whether he fostered actual bias, saying that was not necessary.
AP analysis shows recession's impact moderating...MIKE SCHNEIDER and JEANNINE AVERSA, The Associated Press
-- The recession's grip loosened slightly this spring as seasonal hiring picked up and helped offset rising bankruptcies and foreclosures, according to the Associated Press' monthly analysis of the economic pain in more than 3,100 U.S. counties.
The latest results of the AP's Economic Stress Index show the free fall that marked the autumn of 2008 and winter of 2009 gave way in April to a more controlled descent, possibly even a bottom. Still, the analysis found that pain remains high compared with year-ago levels.
The AP calculates a score from 1 to 100 based on each county's rate of unemployment, foreclosure and bankruptcy, with lower numbers indicating less economic pain. The average Stress score dipped to 9.7 in April, from 10.3 in March. In April 2008, the national average was 5.9.
April's results "are saying we are very close to the low point in this recession," said Mark Vitner, an economist at Wachovia. "The worst is past, but that doesn't mean the troubles are over."
A county is considered stressed when its score jumps past 11. In February, nearly 40 percent of the nation's counties were at or above that threshold. In April, 34 percent scored 11 or higher.
The five highest Stress scores in April were in California's inland valleys, which were the hotbed of the housing bubble and bust. Imperial County, east of San Diego, tops the national list with a score of 30.16, followed by Merced County (26.35), Stanislaus County (23.63), San Joaquin County (22.84) and Yuba County (22.82).
And three out of the five biggest increases in stress from April 2008 to April 2009 were northern Indiana counties that have been devastated by manufacturing cutbacks. LaGrange and Elkhart counties both saw 12.8 point increases as unemployment soared by double digits. Neighboring Noble County saw its Stress score jump by 11.1 points.
Though the economy shed hundreds of thousands of jobs in April, seasonal hiring in some counties helped lower the average Stress score.
Compared month-to-month, the unemployment rate dipped in more than 80 percent of the nation's 3,141 counties from March to April. But the figures aren't seasonally adjusted, so month-to-month comparisons are volatile. Hiring, for instance, typically picks up in the spring with longer days and better weather.
Employment improved the most in communities with seasonal tourism. They include Dare County, N.C., home to Nags Head; Cheboygan, Mich. on Lake Huron; and Taney County, Mo., home to the country-music mecca of Branson.
"More and more of the hotels are opening, and other businesses are picking up, so the unemployment decreases," said Jerry Adams, a city official in Branson, where the jobless rate sank from 15.6 percent in March to 10.1 percent in April.
In fact, all but 23 counties endured higher unemployment in April 2009 than a year earlier. Job losses in manufacturing, construction, retail and financial activities led the deterioration.
Foreclosure rates inched up in April from the previous year in half the counties nationwide. And from March to April, they rose in 42 percent of the counties, particularly in Florida, California, Nevada and Arizona.
The biggest jumps occurred on the outskirts of cities where affordable new housing had driven up growth in the past decade: Pinal County, Ariz., near Phoenix; Nye County, Nev., near Las Vegas; Osceola County, Fla., south of Orlando; and Madera County, Calif., north of Fresno.
In April, bankruptcy rates rose in more than four-fifths of the nation's counties, from both the previous year and the previous month. The largest gains were in areas of Alabama, Georgia and Tennessee, as well as California's Riverside County and Nevada's Nye County.
Unemployment appears to be showing greater influence on foreclosures and bankruptcies, according to the AP's analysis.
In Nevada, layoffs in the gaming industry appear to be contributing to rising foreclosures, said Mary Greenspan, a mortgage broker in Nye County, Nev. The outer suburb of Las Vegas saw the nation's largest percentage increase in foreclosures from March to April: More than four-fifths of a percentage point, to nearly 6.3 percent.
In areas of the Southeast - South Carolina, Georgia and parts of North Carolina - "manufacturing industries are hurting pretty badly," said Steven Cochrane, managing director of Moody's Economy.com. Chemicals, plastics and some autos are made there and shipped overseas. But demand has slid as foreign buyers have endured their own economic troubles, he said.
Over the next three to six months, Cochrane predicts more economic stress in Michigan and Ohio "as we see a lot of auto-related jobs disappear."
CNN Money
Unemployment numbers may be worse than you think...Posted by Two Cents Editors
Friday’s news that the official unemployment rate is now at a 26-year high of 9.4% is actually a rosy spin on what is really happening.
The official unemployment stat that gets the headline treatment, the BLS’ U-3 data set, doesn’t count all sorts of folks who are unemployed and underemployed.
To get a more comprehensive snapshot of the labor picture you need to focus on the less well-known U-6 data set known as “alternative measures of labor utilization.” The U-6 includes folks counted in U-3 plus “ all marginally attached workers” as well as people who aren’t working full-time but wish they were (i.e., the underemployed.) Marginally employed covers “persons who currently are neither working nor looking for work but indicate that they want and are available for a job and have looked for work sometime in the recent past.”
And when you add up U-3 and all the underutilized workers the official U-6 rate for May 2009 is 16.4%. That’s an official BLS-generated stat that no one really wants to talk about: One out of every six members of the civilian labor force is either out of work or not fully employed. (And that doesn’t even account for the rising ranks of workers coping with furloughs.)
Okay, so exactly how bad is that from a historical perspective? Pretty bad. The BLS began reporting U-6 in 1994; in January 1994 the U-6 rate was 11.8% and then steadily declined before reaching an all-time low in October 2000 of 6.8%. During the ensuing recession/bear market U-6 peaked at 10.4% (Sept 2003) until the credit crisis took hold in 2008. The U-6 rate hit 10.9% in August 2008 and has been on a rapid climb ever since; over the past year it has shot from 9.8% to today’s 16.4%. It sure makes it hard to buy into the green shoots theory just yet.
–Carla Fried