Fox falls all over itself to condemn the EPA…again

I wrote a more recent story on this particular battle, after Johnson filed a lawsuit against the EPA via, who else? Pacific Legal Foundation.

update March 22

A story in a local news station provides both video and photos of the “little pond”.

That’s no pond, it’s a bloody lake. It has a dock. A dock.

This is a contrived controversy.

Earlier coverage

Fox just published a story about a poor blue collar in Wyoming, threatened with horrific fines for building an environmentally friendly little pond on his land.

Wyoming welder faces $75,000 a day in EPA fines for building pond on his property goes the headline, and I’m sure the folks at Pacific Legal Foundation are on a plane, right now, racing to the location in order to represent the family in a lawsuit against the EPA.

According to Fox:

All Andy Johnson wanted to do was build a stock pond on his sprawling eight-acre Wyoming farm. He and his wife Katie spent hours constructing it, filling it with crystal-clear water, and bringing in brook and brown trout, ducks and geese. It was a place where his horses could drink and graze, and a private playground for his three children.

But instead of enjoying the fruits of his labor, the Wyoming welder says he was harangued by the federal government, stuck in what he calls a petty power play by the Environmental Protection Agency. He claims the agency is now threatening him with civil and criminal penalties – including the threat of a $75,000-a-day fine.

That EPA…what a bully. Poor man was only building a little pond, providing water for local wildlife and a place for the kiddies to play.

The only problem is the story is as much fiction as fact. Two minutes is all it took to locate the EPA letter of violation. And the letter tells a different story.

According to the letter, the Army Corps of Engineers knew about this “little pond” in 2012 and contacted the Johnsons. From the violation:

On October 11,2012, the United States Army Corps of Engineers (Corps) conducted an inspection of the Site and confirmed that Respondent or persons acting on his behalf had discharged or allowed the discharge of approximately 12 cubic yards of dredged and fill material below the ordinary high water mark of Six Mile Creek during construction of a darn. The work resulted in filling an approximately 40-foot reach of the creek and inundation of an approximately 745-foot reach.

Dumping 12 cubic yards of fill material into a creek is what we call a “dam” back where I come from. Perhaps they call it something else in Wyoming.

The Corps contacted Johnson several times but received no response back. It turned the case over to the EPA for enforcement.

On May 30,2013, the EPA performed an inspection of the Site and verified that an approximately 40-foot reach of Six Mile Creek had been filled during the construction of a dam, impacting approximately 785 feet of the Six Mile Creek channel. The dam was observed to be composed of sand, gravel, clay, and concrete blocks.

I suspect that the Johnsons effort to fill the pond with “crystal clear waters” consisted primarily of running a backhoe in and dumping cement blocks on the creek.

The EPA also invited Johnson to contact its representatives, multiple times, but he ignored all communications. Eventually, the EPA issued the letter with the violation notice. Now Johnson is crying to his Republican Congressional leaders and Fox news about the sudden appearance of the big bad EPA, dumping down on this poor little land owner.

There’s a reason for laws preventing people from damming water sources such as creeks and rivers on their property—their actions impact on others. I suspect the Army Corps of Engineers found out about the “little pond” when impacted neighbors complained.

And once again, Fox has failed to do its job in its haste to cast the EPA in the worst possible light.

Google Map of the farm:

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Arbitration Fairness Act of 2007

The Consumerist has more on the Arbitration Fairness Act of 2007.

People Over Profits has an email campaign but it also helps to contact your Congressional rep directly. A letter of phone call also works wonders.

How important is this bill? There is no bill pending in Congress that scares Corporate America more than this one. There is no bill pending in Congress that could more help the American people than this one.

Due to rulings in the Supreme Court, mandatory arbitration agreements now trump the Equal Employment Opportunity Commission when it comes to employment discrimination lawsuits. This means that an arbitrator can make decisions based on civil rights, can do so without following the law, can do so without following the arbitration rules themselves, and can do so without any transparency into the decision process.

…after Sherri Warner lost her discrimination and wrongful firing suit in mandatory arbitration, a San Francisco arbitrator not only charged her nearly $16,000 for his time, he ordered her to pay her opponent’s legal fees of more than $207,000.

The fee award would probably not have been allowed in court, and it forced Warner into bankruptcy. But after her lawyer, Stephen Gorski, asked the arbitrator to explain his decision, the arbitrator refused when reminded no rules required him to do so.

Arbitrators rarely issue written opinions, making requests for review virtually impossible.

What’s scarier is that this case was ten years ago, and since then, the Supreme Court has given even more power to arbitration, including giving it power overruling on employment discrimination that now supersedes that of the EEOC. The Supremes have even given it power over the law, itself. I a recent case, one of my favorites, Buckeye Check Cashing vs. Cardenga, a man sued a check cashing company claiming that the conditions of the loan were illegal. The company, which had a mandatory arbitration clause, demanded that the claim be taken to arbitration. The state of Florida disagreed, saying that an arbitration clause that was in a contract deemed to be illegal is not enforceable.

However, our Scalia controlled Supreme Court doesn’t allow a little thing like an illegal contract deter it. It decided that it wasn’t up to the courts to determine the validity of an arbitration clause just because it happened to be in an illegal contract — the only item the courts could determine is whether the arbitration clause is, in and of itself, legal. The rest of the contract was then up to the arbitrator.

Question

Under the Federal Arbitration Act, may a party avoid arbitration by arguing that the contract in which the arbitration clause is contained is illegal?

Conclusion

No. The 7-1 majority (Justice Samuel Alito not participating) ruled that challenges to the legality of a contract as a whole must be argued before the arbitrator rather than a court. The opinion by Justice Antonin Scalia explained that “unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.” The Court held that the Florida Supreme Court had been wrong to rely on a distinction between void and merely voidable contracts, because the word “contract” in the Federal Arbitration Act includes contracts later found to be void. Justice Clarence Thomas dissented due to his long-held view that the FAA does not apply in state courts.

This is a frustrating topic for me, because I’ve watched over the years now as arbitration has eroded all of our judicial rights, as granted by the Seventh Amendment to the Constitution. It’s frustrating because I can’t seem to convey, in this weblog, how serious this can get.

A legal expert in Texas once said that he felt in ten years, there would no longer be a civil court system because of how much it is being eroded by an act that was basically put into law in 1925, as a way for businesses to come to ‘gentlemanly agreements’ in regards to a dispute. It was never intended to be used by corporations against the common citizen.

This is also a case of the breakdown of the system of checks and balances built into our government. The Supreme Court has empowered arbitration and supported mandatory arbitration to the point that it now is undermining the very nature of civil rights in our country, and was allowed to do so, unchecked, in the Republican controlled Congress.

Now we have a Democratic controlled congress. More than that, we have a congress where even many Republicans are beginning to look askance at the miscarriage of justice that occurs under the auspices of ‘arbitration’.

American Corporations do not want this Bill. American Corporations, who have delivered shoddy equipment, surly service, and bad faith consumerism.

Who supports this bill?

The Feingold-Johnson bill is supported by a host of consumer advocate organizations including Consumers Union, Public Citizen, American Association for Justice, Center for Responsible Lending, Consumer Federation of America, Homeowners Against Deficient Dwellings, Home Owners for Better Building, National Association of Consumer Advocates, National Consumer Law Center (on behalf of its low income clients), National Consumer Coalition for Nursing Home Reform, the National Employment Lawyers Association and Public Justice.

The list is only growing, as word of this Bill slowly trickles out.

Support the Arbitration Fairness Act of 2007. Please.

Tyson Valley, a Lone Elk, and the Bomb

Christmas Eve, I spent at a local place, Lone Elk park, just outside of St. Louis. It’s a large animal preserve and outdoor facility, with a 3.2 mile hike around the perimeter. My hiking book described the hike as ‘easy’ but the park labeled it difficult. I tend to side with the park–though the trail was very well marked and in decent shape (meaning no rocks to trip over), there was some pretty stiff climbs at times.

The park has some old buildings left over from World War II, and a nice small man-made lake in what’s called ‘Elk Hollow’. However, the stars of the park are the animals: the herds of bison, deer, and elk. Especially the elk.

Out walking, I saw a few deer and the geese on the frozen surface of the lake, but the only elk I saw were a couple of females at a distance, partially obscured by trees. When I got back to the car, though, I saw two young bucks by the side of the road, not ten feet away, browsing on the winter dried grass. I grabbed my camera and had just started taking photos, when I noticed out of the corner of my eye, across the lot in another clearing, a mature male, with a beautiful rack, sun reflecting on his gold/brown fur. He was stunning. Absolutely stunning.

I moved closer to him, but not too close to be a threat, and started taking more photos. After a few minutes of me dancing about, taking shot after shot, he stopped eating and looked at me. He started to step to the parking lot, and I backed up to the car, not sure if I had antagonized him. But when I moved back, he moved back. I moved forward, and he started moving forward. We danced back and forth for a few minutes, until I got the point and just stood still. He carefully stepped into the lot, and then walked in front of the cars that were now stopped to enjoy his (and I have a feeling my) antics.

The other two elk, in turn, followed him toward the lake — keeping an eye on me, but not particularly worried at my presence (they’re used to people). I followed them to the lake, trying not to crowd them, snapping all the way.

All in all, I have a lot of elk photos. You knew this was coming, didn’t you? I thought then that rather than just dump them in the page, I would tell you the story about Tyson Valley, its history, and the reason that the park I walked in is named Lone Elk Park. It’s a story of war and peace, and war and peace, again. It’s also a story of perseverance and deep loneliness.

And the atom bomb.

The Lone Elk

No one knows for sure how old the lone elk was; they didn’t even know he still existed, much less the year he was born. When he was finally discovered in the hollow of the old Tyson Valley Powder Farm by the surprised park worker, he was a full grown male, …standing over seven feet tall.

At a minimum, he had to be at least seven years old, because elk are dependent on their mothers for their first year; and his mother, along with every other member of his herd, had been rounded up by members of the US Army and shot within a three month period, exactly six years before his discovery. But I’m getting ahead of my story.

From Peace to War

Tyson Valley is the area framed by the Meramec River and old Route 66, what is now Interstate 44. Prior to the 1940’s, the area served primarily for mining by whatever people were dominate at the time. Before Europeans appeared, the native American people would mine the area’s chert deposits, and trade the high quality material with other tribes. After the 1800’s, the area served as a limestone mine and quarry, generating enough business to start a town, which eventually attracted it’s own railway line. However, the mine played out in 1927, and aside from some planned lumber operation, the land lay fallow.

All this changed when the US was suddenly drawn into World War II. In 1941, the government bought the land under the concept of imminent domain, purchasing over 2600 acres of hilly country pocketed with the remains of shallow mines. It turned the old town and the rest of the space into the Tyson Valley Powder Farm: an ammunition dump, chemical storage center, and weapon test site. The Army built concrete storage shelters, vaults, and several buildings, along with several miles of road, and enclosed all but a few hundred acres of it with a strong, wire fence. Patrols in jeeps carrying machine guns, or on mules with rifles, rode the parameter keeping intruders out.

There were no elk in the area at that time, and chances are, none of the white-tailed deer that are so ubiquitous now. However, even if there were larger animals trapped within the military fence, its unlikely that animals would have been allowed among the firing ranges, and near the buildings, where the TNT and PETN were stored. They especially wouldn’t be allowed near the building that stored the uranium refined by Mallinckrodt Chemical for the Manhattan Project.

From War to More War

In 1942, several members of the Manhattan Project paid a visit to Edward Mallinckrodt of the Mallinckrodt Chemical Works, in St. Louis. They had a problem and wanted to know if he could help them. Their problem was that they needed uranium refined to a higher degree of purity than had ever been produced before.

Following a procedure designed by the University of Chicago, the people at Mallinckrodt were able to meet the needs of the project; the company re-tooled a plant in St. Louis specifically to produce this refined uranium.

Most of the workers had no idea what they were working on.

An operator working for Walter Schmidt read an article in the newspaper about uranium-235–the story was about some work the Austrians were doing at the time. Later that day, as an Army official watched the men work, the man quite innocently asked if the material was similar to U-235. Shocked speechless, the Army man literally ran from the scene and soon returned with three more officials. A barrage of questions followed and they were stunned to learn that the operator had read the very small article and connected it with the work Mallinckrodt was doing.

Not until that day in August, 1945 did the men of Mallinckrodt know how vital their work had been to the winning of the war. A holiday was declared for the people of the uranium project — a brief respite for relaxing and celebrating. Then, on with the job, because there was still much work to do.

Mallinckrodt ended up providing uranium fuel for weapons and for nuclear plants. In the process, due to the contamination of the Weldon Springs area, it also helped create one of St. Louis major superfund site (see here).

During the production of the uranium, an issue of where to store the material arose. It had to be stored in an isolated place, with good security, and already set up for storing hazardous material. It didn’t take the powers that be all that long before turning their eyes to Tyson Valley. From documents released by the DoE, Tyson was used to store refined uranium, consisting of 0.7% u-235, from 1942 to 1947. Just a few years later, when the guns of war stilled yet again, the same area that housed uranium was used to house mushrooms.

From War back to Peace

In 1947, at the end of World War II, the government no longer needed the ammo dump and started looking around for a buyer. One of the first and most interested was the St. Louis County, which sought to turn the area into a park, with hiking trails and horseback riding. Tyson Valley Park officially opened in 1948, and included among its attractions a miniature railway. It also served as a wildlife refuge, as elk from Yellowstone, Bison from South Dakota, and white-tailed deer from Grant’s Farm were brought in.

The Park thrived, attracting a number of visitors, and the park management made good use of the roads and facilities left by the government. Buildings were turned into restaurants and hot dog stands, and shelters were used to store animal feed. Even the concrete storage ‘igloos’ were put to use, leased out to mushroom farmers who found the dark, damp interiors ideal mushroom growing conditions. The animals imported into the park also thrived, and the elk numbers especially started to grow. However, Tyson Valley and the animals peaceful existence was short-lived, because following on the heels of World War II, the United States was about to embark on another war, this time with Korea.

From Peace back to War

In 1951, invoking provisions written into the original contract of sale, the government decided to re-instate the Tyson Valley Powder Farm, and return buildings and the land to their former uses. At first the Army leased the space, but eventually they bought it back from the county–all but a small portion outside of the fence, which ended up becoming West Tyson County Park.

The County tried to find homes for all the animals it brought in, and finally moved the Bison to the zoo at Kansas City. However, no one wanted the elk or the deer so the county left them; they co-existed for years with the military.

It’s into this environment that the lone elk was born, somewhere in the late 1950’s. By now, the original herd of ten elk had grown hugely, and now numbered 108 members; too many for the area to support. It must have been tough for the little elk and his mother to survive; since all the elk were penned within the military fence, they couldn’t migrate to find food, and had to scavenge for what green they could find–even to pulling up grass edging around the ammo dumps and the chemical storage. The scents must have been confusing: faint shadows of mushroom and hot dogs overlaid by that of TNT.

One fall day, a bull elk in the midst of rutting behavior attacked and damaged one of the Army’s cars. An officer at the time decided that the animals were no longer safe to have about — especially since there was now no longer any vegetation for the animals to live on, and the military did not ‘have the funds’ to feed the animals.

The officer gave the order to gather all the elk together and shoot them, donating the meat to the local Pantry, as food for the poor. From October 1958 to March 1959, soldiers shot any elk they discovered, until no more could be found. They left the deer be, which may have been the saving grace for our young, and now very much alone elk.

It’s that old peace thing again

The Korean War ended, or faded to an end is more realistic. For a while, the land was used by the government for storage of odds and ends, such as the storage of surplus corn and wheat. However, in 1961 the government decided it no longer needed the Tyson Valley Powder Farm and put the land up for sale. The County wanted to re-claim as much land as they could, but Washington University also wanted as much as possible for biological and medical research. The government sold 2000 acres to Washington University, with an odd stipulation that it must conduct research for twenty years. Of the rest, the County was able to buy back an additional 465 acres to add to the West Tyson County Park.

The County had plans to make the park into a winter playground, with skiing and sledding and support for other winter sports. It was while work was underway for both sections of land–the Tyson Research Center and the now expanded Tyson Valley Park, including building fences between the two–that the park worker stumbled on to the large elk, trying to stay hidden in among the trees.

The elk had been hiding for six years (I’ve read reports of ten, but this longer length doesn’t match other records), keeping out of way of any humans, and living off of whatever green it could find in the enclosed area. It’s discovery was to soon change everything. As Conor Watkins wrote:

At the same time, the county was busy constructing a chain-link fence between the park and Washington University’s Tyson Research Center. The park Superintendent, Wayne Kennedy, ordered that a gap be left in the fence until the elk was on the park side of the fence. Kennedy told the park Supervisor, Gene McGillis, to oversee this task. McGillis was an American Indian and familiar with tracking animals. He dumped a truckload of sand at the gap in the fence and waited a few days. When a set of elk tracks was seen entering the park with none leaving, McGillis called Kennedy to have the gap in the fence closed. The gap was closed when Kennedy spotted the elk in the park from a helicopter.

St. Louis County originally planned to turn the hilly park into a winter recreation area with ski slopes, sled and toboggan tracks, camping, and an archery range. Once the elk was in the park, it was decided that the area be used for hiking and picnicking, activities more friendly for an elk. Soon the park was re-named to Lone Elk. The public became involved and students from elementary schools in the Rockwood School District collectively donated $300 to transport more elk from Yellowstone National Park. Students were encouraged to bring dimes to school to help the cause. Any student contributing a dime or more earned a certificate for a share of ‘Elk Stock’. The truckload of elk stopped at Ellisville Elementary and was viewed by exited students. The Fred Weber Corporation donated a $50,000 dam to build a lake within the park. The elk story even gained enough national attention for Walter Cronkite to cover the event.

When the five female and one male elk were brought into the now newly renamed Lone Elk park, the lone elk, formerly so shy, showed up within 20 minutes of their being released. He stayed with the herd until he was found dead a little over a year later. However, several of the elk in the park I was able to appreciate on Christmas eve were descended from the lone elk; perhaps even the beauty I photographed at the start of this story.

Speaking of which, does this Story have an Ending

There is no statue to the lone elk, and no burial mound to stand at with bowed head. His story is a testament to the will to survive, and no memorial is more fitting than to take a moment and stand at the banks of the frozen lake in Elk Hollow and watch the geese walk carefully across the ice; or to watch two buck males casually lock antlers, as they work through hierarchy and dominance. Life is, itself, a memorial, and perhaps the only truly worthwhile one at that.

As for Tyson Valley, the marks of war are mostly gone in the park area, though the old Army buildings are still being used in the Tyson Research Center. The government did find buried metal and discarded ammunition in the park, which had to be cleaned up. However, a specially trained medical team from Washington University investigated both the park and the Center and reported in 1988 that they could find no traces of radioactive contamination from the stored uranium.

Who is to say if this is always so, and wouldn’t there be irony, as there was in the last set of links, and perhaps even some justice if there was some radioactive contamination in the meat taken from the elks gathered up and hunted? Or in the grain stored for so long, the mushrooms grown in the dark, or the hot dogs served those many years ago?

Most likely not. However, if there’s ever a blackout in St. Louis and those in Illinois still see a dim glow out our way, listen for the faint bugle of a triumphant lone elk in the wind.

What’s next

I have been sending emails to groups that have and still are organizing marches for peace, basically posing to them the question: what’s next. Specifically, I sent emails to MoveOn and a more local organization Instead of War. The only email I’ve gotten in return from both is group emails for new actions.

Instead of War sent an email listing several new peace marches, some focused around the anniversary of the assassination of Martin Luther King Jr. According to the note, one of the marches is sponsored by the Martin Luther King Jr Holiday Committee. I’ll be honest that even if I were still marching to protest the war in Iraq, I would not march in a protest sponsored by a committee that considers the assassination of Martin Luther King Jr a ‘holiday’. I’m sorry, but I only commemorate Dr. King’s life. This march has a very confused message.

I’m not surprised that I haven’t received any response from Instead of War in regards to “What’s Next?” From my previous experience with protests against the Vietnam war and transporting nuclear waste across Washington state as well as several other environmentally and politically related issues, I have found that protest organizations are very conservative.

The MoveOn organization, though, sent an email that started with the following:

The war with Iraq continues. No one knows if it will last weeks, months, or years. Even after the fighting stops in Iraq, the fallout from this war could span decades. We can only hope that it ends quickly, with an absolute minimum loss of life.

The email addresses the question of What next? by starting a letter to the editor campaign focusing specifically on the issues that I find myself focused on — working against a US controlled occupation of Iraq:

Even as the troops march towards Baghdad, a big controversy is brewing over what will happen when the war does end. The neoconservatives like Donald Rumsfeld, Paul Wolfowitz, and Richard Perle envision a longer U.S. occupation of Iraq, directed entirely by the Pentagon and with only minimal participation by other countries and the U.N. Their scheme calls for setting up a provisional government in which Americans head each of the 23 ministries. In essence, they want to win the peace the way the U.S. has pushed for war: alone.

The U.S. State Department, the C.I.A., Prime Minister Tony Blair, the major humanitarian relief organizations, France, Germany, and most of the rest of the countries in the world disagree with this plan. They’d like to see the reconstruction of Iraq as a collaborative, international effort lead by the U.N. And many of them believe the Pentagon plan is a recipe for disaster.

The decision on how post-war Iraq is to be managed will be made in the next several days, and the Administration is split. The consequences will play out in Iraq and around the world for generations. By writing a letter to the editor of your local newspaper, you can help to sway the balance away from the unilateralism that has done so much damage and toward a collective rebuilding process.

I’m not sure that a letter to the editor campaign will help sway the balance away from the unilateralism but it will start the conversation in that direction, and this is not a bad thing. In fact, the same letter should be sent to congressional members and local politicians, in addition to those who are campaigning for political positions in upcoming elections. Start the letters with, “I am a registered voter…”.

Not saying stop is not the same as saying go

In some ways I regret my Peaceblog no more writing, not because I don’t believe what I wrote — I do. And not because I feel like I’m selling out — I’m not. It seems to me this issue is on the minds of other people who marched and worked for peace. And it’s not an easy issue to discuss either.

I am aware that there are some people who are unhappy that I’m not continuing to protest the armed conflict in Iraq. That doesn’t bother me, as I knew that there will be people protesting the war until the end and that some will understand where I’m coming from, others won’t. I can accept this.

No, what does bother me is that others see this as a form of support for the war, as some sort of right-thinking move. (I hate that term with a passion, almost as much as I dislike neo-con.)

Let me be blunter: I am still against this war in Iraq. I believe, strongly, that the United States has no right to make what amounts to a unilateral invasion of Iraq. People are suffering and dying because of super inflated egos who have worked out a ‘strategy’ on paper and who refuse to acknowledge that they don’t have all the answers; in most cases, they don’t even know what the questions are. No, I believe the US screwed up.

However, I am also most interested in focusing my energy on what we can do to help the people of Iraq as soon as possible, as well as minimize the anger in the rest of the Arab world. In my opinion, this means establishing an interim government that will be acceptable to the Iraqi people and the majority of countries in the Middle East. At least until the Iraqi feel comfortable enough, as a whole, for everyone to “please just leave now”.

To me, this interim government should be overseen by more neutral parties, in my opinion, something joint between the Arab League and the UN.

I think the worst possible thing will be for the United States to continue in any form of controlling position in this country. Not only will this increase the stress and the anger in the Middle East, quite bluntly, I don’t trust the current leadership of this country not to screw up.

I also want to ensure that the US does not invade any other countries without cause. Not on my watch at least.

Now, taking all that, and borrowing from Jonathon’s upcoming “‘How to Respond to Idiots’ for Dummies” book, I don’t know how one gets from being sadly resigned to the belief that pulling troops out at this time would do more harm than good to the Iraqi people to I am now behind this war to give freedom and human rights to the Iraqi people.

However, there may be some confusion because of a mixed message I’m sending. After all, I am behind a war for freedom and human rights; it’s just that this war is being fought within the United States, not Iraq.

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