Category: Legal, Laws, and Regs

Categories
Government Legal, Laws, and Regs

Before you sign that petition

The USDA has been busy approving genetically modified crops for cultivation, including a potato and alfalfa. I’ll have much more to say on GMO later, but I wanted to focus on one aspect of the approval process—the submittal of public comments.

Before the USDA approves a new GMO crop, it opens the approval for public comments. The USDA has to address all of the comments, in one way or another, before the approval. The same holds true for all of the government agencies, and most decisions made by those agencies: the decision goes through a period of public commentary, and the agency has to read each comment and ensure any concerns in the comment are addressed. An example is the recent invitation for the public to comment on the USDA’s proposed changes to the Conservation Stewardship Program.

The GMO potato approval received exactly 308 comments. Considering how controversial genetic modification of food crops is, you might be surprised that there were so few comments, but no there were only 308 comments that the USDA addressed.

Of course, one of the comments was a consolidated document consisting of “identical or nearly identical letters, for a total of 41,475 comments.” What effect did all those 41,475 separate letters have on the USDA decision? They had the effect of one, single, submitted comment.

Frequently when a government decision is opened for public commentary, one site or another will start up a petition for people to add copy and paste comments that the organization will submit to the agency on their behalf. And in every single case, the entire collection of signatures becomes exactly one comment. For the most part, it doesn’t matter how many signatures are attached to the comment, it’s still treated like one comment. It doesn’t matter how many letters are attached if they’re identical, or nearly identical: they’re treated as one comment.

The only time the number of signatures matters, is when there’s enough publicity associated with the signatures to generate interest from the White House or Congress who will then intervene on behalf of the group of people. For the most part, you might as well spend your time knitting socks or tweeting what you had for lunch, for all the impact it will have to submit a comment through a petition.

However, if you submit a comment directly to the agency, it gets counted as one comment. The concerns you thoughtfully detail do have to be addressed. The comment does have an impact. The impact might be small, but it isn’t negligible. Signing your name to a petition is, for the most part, negligible. You’re not doing a damn thing. Not when it comes to federal rulemaking and decisions.

You’re better off focusing on issues that really matter to you and taking the time to write a detailed, thoughtful comment related to those specific issues, than you are blindly signing every petition that comes your way in Facebook, Twitter, or Google+.

Categories
Legal, Laws, and Regs

Judge tosses suit leaving Koster with egg over face

broken egg on red paper

Photo courtesy dfinnecy licensed cc by sa 2.0

Judge Kimberly J. Mueller tossed the multi-state lawsuit instigated by Missouri’s own AG, Chris Koster, against California’s new egg laws.

As the decision notes, the plaintiffs had no standing. Koster may claim that the lawsuit was brought about to help all of the citizens of Missouri but, as the judge rightfully noted, the lawsuit would benefit only a tiny minority of large egg producers, and therefore the states don’t have standing to sue.

It is patently clear plaintiffs are bringing this action on behalf of a subset of each state’s egg farmers and their purported right to participate in the laws that govern them, not on behalf of each state’s population generally.

It is patently clear that Koster brought about this lawsuit in order to pander to the large agricultural business interests in this state. And he used taxpayer money for this purpose. Thankfully we have a Judge in California stopping all this nonsense before more public money was wasted.

Previous stories on this lawsuit:

Koster’s Right to…collect large campaign contributions from big Agribusiness Interests

Koster’s Missouri Egg Challenge

Categories
Legal, Laws, and Regs Political

Missouri Dives into the Rabbit Hole with Amendments 1 and 5

person standing in doorway to castle ramparts

Photo by Stefano Corso, used without edits, CC BY-NC-ND 2.0

Missouri’s “Right to Farm” Amendment 1, and the gun support measure, Amendment 5, both won last night. The vote on Amendment 1 was so close that we’ll have an automatic recount, but I think the result will be the same: a win for Amendment 1 by a very narrow margin.

Both results are disappointing. Newspapers across the state noted before the election that our Constitution is already bloated beyond recognition, and all the amendments were either unnecessary, or should have been handled by an increasingly chaotic and under-performing state legislature. And Amendments 1 and 5 were the worst of a bad lot

Amendment 5 just creates confusion about enforcement of existing gun laws, and will take tax payer money for the court challenges the language will generate. But the court costs associated with Amendment 5 are nothing compared to the costs associated with Amendment 1. The very wording of the ballot measure is going to be used to challenge attempts to “enforce” this incredibly vague amendment. The proponents added the word “citizen” to the ballot, but the word “citizen” isn’t included in the amendment, leaving the protections open for foreign-owned farms and ranches. That Secretary of State Kander allowed this insertion was disturbing. That he eventually came out in support of the Amendment was a shocker—especially to the many people who supported him in the last election.

What helped pass both amendments was placement in a primary, rather than general election, and poor voter turn out in the cities. In addition, when Attorney General Koster decided that big agribusiness interests and the NRA benefited his personal ambitions more than environmental, animal, gun safety, or food safety interests, his actions in support of both amendments just added to the confusion about what they were really about.

So both Amendment 1 and Amendment 5 passed.

OK, the pity party is over. Now, it’s time to move on, and see these votes as a win, rather than a loss.

We have had a state legislature (and leadership) that is increasingly in the pockets of both the NRA and large agribusiness interests. Our cities are grossly underrepresented, real work isn’t being accomplished, and it seems every legislative session is focused either on undermining every single environmental, consumer, and animal welfare law related (even remotely) to farming, or to increasing gun interests. The legislature even tried to redefine deer as livestock in order to undermine the Department of Conservation’s efforts to add essential safety restrictions to captive deer hunt businesses.

Now the supporters of these two amendments have successfully embedded extreme and vague measures into the Constitution, and they’re probably indulging in a fit of self-congratulation. However, they haven’t realized that the aggressors have now become the defenders.

Take Amendment 1, the “Right to Farm” bill. Or as we’ve come to know it, the Right to Harm bill.

Previously, those who fought against this Amendment have also had to fight to defend our water, our air, our animals, and the safety of our food. We’ve always been in positions of being the defender, except when we pulled together enough people to pass Proposition B, the puppy mill bill. Even then, we had to defend the sanctity of our vote, and suffer disappointment when its necessary restrictions were undermined.

Now, we’re no longer in positions of defending against the bad laws, the bad laws have been passed. Now we can turn our attention to the fight. Now we can be the aggressors. We can be the challengers in the courts, the watchful eye on every state decision related to farms, the ones who scrutinize every back room deal. Now we can be the ones who chip away, day by day, year by year, at the platform on which those who would profit from these bad laws now stand.

AG Koster believes that two years from now when he runs for Governor, we’ll forget his actions, or no longer care about them. He assumes that most environmentalists, animal welfare folks, and food safety and sustainable agriculture people are Democrat, and Democrats will vote Democrat no matter what.

He is in error.

Every foolish act, and there will be many, resulting from the passage of Amendment 1 will be brought to light and documented in intimate detail. Every connection to elected politicians will be traced and exposed. We will follow the money down to the penny, and every drop of water contaminated, every fluffy puppy harmed, every person made sick by contaminated food, and every necessary law that is undermined, will be used against those who brought about such actions.

We’ll keep a tally of the costs to tax payers for every court case arising from the Amendment, and paint this tally in big, bold letters. We’ll read every court document, and make sure the best bits are disseminated in weblog and newspaper, and in Facebook, Twitter, and the other social media engines. By passing Amendment 1, the backers have forged disparate groups concerned about the environment, food safety and sustainability, public accountability, and animal welfare into one single, solid unified force with but one focus: stopping the “Right to Farm” supporters from causing harm.

Enjoy your day of victory, Amendment 1 supporters. Tomorrow is a new day, and you’re no longer the ones setting the rules of the fight.

Categories
Legal, Laws, and Regs

Who keeps e-mails?

fishing expedition

If you’re following the BPI vs. ABC “pinkslime” lawsuit, than you might be aware that the company is attempting to subpoena emails from several journalists and food safety experts.

The subpoenas to Food Safety News reporters are a bit tricky, because the publisher for the online site is Bill Marler, who is providing pro bono legal defense for the two former USDA workers who are also being sued in this lawsuit. I’m not a lawyer, but this means attorney-client privilege to me. I’m surprised that the Judge would allow such a fishing expedition so close to this privilege, but maybe this is the way they do things in South Dakota’s courts.

Michele Simon responded to the subpoena, but as she noted, she doesn’t keep emails. Come to think of it, I don’t keep emails, either. Nowadays, when you have corporations shotgunning subpoenas under indifferent judicial eyes, perhaps none of us should keep emails. Not unless we primarily write about cats or JavaScript. Or the latest squabble between the WhatWG and the W3C HTML working groups (because no one would ever want any of these emails).

If BPI, Inc doesn’t have what it needs to to win its case, or can’t get it from those directly involved in the lawsuit, maybe it should focus on how to explain away both the pinkness and the slimy feel of its product when the defendant lawyers bring a mess in for the jury to fondle. And spend some time contemplating the fact that, yes, people in this country really do want to know what’s in the food we’re eating.

Update: ABC has also covered the subpoena story. Must have been a bit cathartic for them.

Categories
Documents Legal, Laws, and Regs

Who owns the law?

I follow several legal cases, most related to animal welfare, climate, the environment, or agriculture and food. Like others, I have a PACER account, which gives me access to most court documents at the federal level, but at a price. I’m not overfond of the cost, as I’ve noted in the past, but I am, at least, grateful for such simple access to the documents.

I also re-publish the documents for access by all, and that includes discovery material and and evidence exposed during a trial. If it’s posted by PACER, it’s public domain. When I pay for PACER I’m paying for access to the system, not the documents. So far, no cease and desist letters, knock on wood.

I also re-publish other interesting government produced documents I find. Most are from US agencies, but some are from states. So I was surprised when reading about the experiences of Carl Malamud, creator of Public.Resource.Org, when he was attempting to access statutes for several states. He recounts his experiences in the excellent article, Who owns the law? Technology reignites the war over just how public documents should be, in the June edition of the ABA Journal:

During the January hearing, Malamud spoke about how, during the past year, he has been targeted by opponents that have blurred the distinction between government entity and private organization. For example, state and local governments often contract private publishers like West or LexisNexis to produce and publish their official codes. In 2013, Georgia, Idaho and Mississippi asserted copyright protection after Malamud posted their laws on his website. “While it is clear that the law has no copyright, a few states have evidently not received the memo,” he says.

Idaho, for instance, claimed in its cease-and-desist letter that it owned a copyright in the “analyses, summaries and reference materials” contained in the annotated code. However, the state went one step further and claimed copyright protection for the native statutory content itself, stating that Malamud needed a license (which could be provided free of charge) if he wanted to use it on his website. Georgia also claimed copyright infringement, writing in its takedown letter that while “the state asserts no copyright in the statutory text itself,” Malamud allegedly copied annotated text, which the state claimed was copyrighted. Mississippi made a similar claim, noting that LexisNexis, which published the code, had provided a clean, unannotated copy of the code that was available for free.

To Malamud, that’s a false distinction. He says the codes are not independent endeavors by private companies but are, instead, clearly labeled as official state laws.

A copyright on state code? Impossible.

Sure enough, when I tried to pull up the Georgia state code, as linked from the official George state web site I get this—an assertion that I can access a free copy of the code, only if I acknowledge that the material is copyright the state of Georgia.

A copyright on state code? Oh, hell no.

If the state wants to allow a private entity to annotate the state code, then the private entity can provide a link to the annotated copy. It’s the state’s responsibility to provide direct access to the code without asserting any form of copyright that must be agreed to before the individual can access. The material is prepared with tax payer funds and therefore is public domain. More importantly, as Malamud notes, laws that impact on citizens must be freely available to the citizens.

Not just state laws, though. Malamud also posts standard organization regulations, and is currently involved in lawsuits related to the standards organizations’ claims of copyright. It brings up an interesting question: we can consider that a private entity has rights to material it produces, but what happens when the material it produces is referenced in laws?

The organizations claim that they shouldn’t lose their copyright just because the regulation is referenced in law, but Malamud notes that “Access to justice should not require a gold card.”

Or even a plain old bank debit card, which is what I use with PACER.

The ABA Journal article is a fascinating and informative read, especially for those interested in open document access.

For more on Malamud’s legal cases, the Electronic Frontier Foundation provides access to the court documents for the Sheet Metal and Air Conditional Contractors court case, and Archives.org provides access to the documents for the most recent American Educational Research Association case, uploaded via RECAP. I’m rummaging around for the court documents related to the American Society For Testing and Materials court case and counterclaim. Recent filings in both show them being reassigned from Judge Emmet Sullivan, a judge I’m very familiar with, to Judge Tanya S. Chutkan.