Category: Political

Categories
Political

2016 Election: Why I’m Supporting Clinton

Ms. Squirrel is ready for the rock to roll

When I voted in the Missouri Presidential Primary, my choice was Hillary Clinton.

I have watched this woman fight the good fight for decades. When Bill Clinton was elected President and appointed her the chair of the task force to create a plan for reforming health care, I was delighted. Not only did we hope to finally bring about health care reform, but we saw a First Lady given a position commensurate with her capabilities. No more flowers and china…real work.

She served as chair on the committee that devised the plan. She testified for days in Congress in support of the plan. She traveled around the country talking about healthcare reform. She worked tirelessly on a plan that would have, among other things, instituted a mandate that employers provide healthcare insurance for their employees, that no one could be denied coverage, and lower-income people would not have to pay a dime.

I also watched as Republican vilified the plan, with a little help from the insurance companies. But what was harder to watch was the Democrats, with their incessant demands to have their own plans considered instead. President Clinton’s Democratic support fragmented to the point that we lost our first, best effort at healthcare reform. Democratic Senator Patrick Monyihan went so far as to declare there was no health care crises, as he pushed his own agenda.  Representative McDermott and Senator Wellstone pushed a single-payer plan that hadn’t a chance in hell of succeeding, with only 4 additional Senators and 90 House Members in support—including an independent by the name of Bernie Sanders.

Thank goodness President Obama didn’t have as many difficulties with the Democratic Congress as Clinton had, or we’d still be debating that we don’t have a health care crises, we have a health insurance crises.

I have health insurance for the first time in years because of the Affordable Care Act. It may not be perfect, it may not be the ideal, but when you’ve sweated over the fact of being financially ruined because you get sick, well, perfection is in the eye of the beholder.

Hillary Clinton has promised to continue support for the Affordable Care Act, and improve on it, as she can, and as Congress allows. It’s a realistic promise that builds on what we have. It takes into consideration the very real makeup of Congress that will exist in 2017: a House still controlled by  a rabid bunch of extremist Republicans, and possibly, only possibly, a Democratic controlled Senate.

More importantly, she sees the ACA as a stake in the ground in which to tie new reform to, rather than just dig everything up, and start over.

What Clinton promised on healthcare is what she can, as President, accomplish. There’s no fireworks, no talk of revolution—none of the sexy populism and grandiose schemes that seem to be the byword of this election. It would be so easy to promise the moon, along with everyone else, and then backtrack later by claiming Congress is too difficult and the Republicans have too much control. No, she’s quietly confirmed what she knows she can deliver: no more, no less.

In none of the issues listed at the Clinton web site, do we see promises that can’t be met. She doesn’t talk about “working towards” goals, she talks about actual, real-world efforts that we can see, and judge, ahead of time, and also hold her accountable for. That’s not glamorous, but it is gutsy.

She isn’t promising to free half the prison population, because she knows most prisons are state prisons and a President has no control over them. But Clinton can work to reduce the reliance on  mandatory minimum sentences. She can also work with the Justice Department to ensure equal protection for all under our country’s judicial systems—just like Obama is doing now in places like Ferguson, MO.

Clinton isn’t promising to eliminate all student debt; doing so would take an act of Congress. Instead, she wants to work towards refinancing existing loans so former students have more favorable terms; and that no one ever pays more than 10 percent of their income. She’s not promising free college for all, but easier access to tuition assistance by expanding on the existing Pell Grant system. Free college tuition for all, even if it were a good idea, would not only take an act of Congress, but would also require support from the leadership in all of the states.

Considering that Republican governors have been cutting state funds to colleges in almost all states they control, I doubt that we’ll see them gladly accept the fact that they have to provide even more funds.

Clinton supports the President’s DREAM Act, and she’ll work towards immigration reform. She promises to help families as much as a President can. No magic wand approach, here. No mention of walls, either.

No President has the capability of breaking up the banks, but Clinton has promised to strictly enforce rules against them. And work to strengthen the existing rules, and close loopholes—all actions an Executive can take if Congress resists any other effort.

Clinton won’t ban all fracking, because no President can ban all fracking.  Only an act of Congress can enforce a fracking ban.

But Clinton has promised to phase out fracking on public land, as well as more strictly enforce safety and environmental regulations. The important thing to remember, though, is we can’t  phase out fracking by dumping us back into a dependency on coal and coal mining. We don’t have an infrastructure in place where we can immediately replace non-renewable energy sources with renewable ones. It’s a complex problem with a lot of dependencies, none of which easily fits into a sound bite. But then, I’m not sure that voting for someone because of their sound bites is representative of good governance.

I have no doubts, though, that Clinton will honor the Paris Agreement, work to have Congress ratify it, and even expand on it, if possible. And that she’ll be a fervent proponent for both solar and wind energy.

Hillary Clinton is also capable of holding her own under pressure and attack. We’ve seen the Republicans mount a campaign to tear Clinton down that exceeds any other in modern history. The only person they’ve gone after more virulently is Obama. He’s only been the target for eight years—she’s been a target for decades.

Case in point is the infamous emails. Clinton establishes her own professionally maintained email server rather than use a popular email service like AOL (Colin Powell’s favorite), and next thing we know, according to our Republican friends, the fate of the country is undermined.

Partisan hyperbole aside, Clinton scrupulously maintained a set of her emails from when she was Secretary of State, turning them over when requested, and asking for all of the emails to be published so that people could see she had nothing to hide. No other person in the White House Administration has had every email they’ve ever received or sent be scrutinized with the level that Clinton’s emails have been scrutinized. They have passed through the Intelligence Community filter, and when consider the agencies involved, it’s almost unbelievable that any of them managed to survive relatively intact. Since the last of the emails have been delivered, we now know, for a fact, that none were classified at the time they were sent or received. We also know that emails Powell received in his private email have also suffered the same retro-classification, symptomatic more of inter-agency squabbling than a real threat to national security.

Yet here is the Republican National Committee, now suing the State Department for even more, trying to get emails from people connected to Hillary Clinton, many in private organizations; all in a desperate attempt to keep the manufactured scandal alive. It would be funny if it didn’t cost tax payers millions of dollars.

Thankfully, most of us see this for the desperate and despicable act it is. Clinton will survive it, as she’s survived so many of these contrived controversies. She survived the emails, she survived the Benghazi never-ending committees, which Republicans foolishly admitted were created to undermine her Presidential candidacy.

There are even those who would hold Clinton accountable for the actions of her husband when he was President, as if she’s nothing more than a faint echo of him. You’d think we’d be beyond considering women to be nothing more than appendages of their mates, but evidently not when it suits certain agendas.

Bluntly, in my opinion, Hillary Clinton will be a better President than Bill. She’s more experienced now than he was when he got the job. She’s also more open to hearing new ideas, more aware of all the factors in play that can cause havoc. As practical as she is, she’s also more idealistic—a little more empathetic to what’s happening to the average person.

I’ve also seen Clinton exercise her considerable intellect, her shrewdness, and her team-building skills in support of the United States and our current, much loved President, Barrack Obama. Team building doesn’t factor into our discussions about being a good President, but it’s an essential element. FDR managed to pull positive results out of disaster because he was able to swear in the majority of his cabinet the very day he was inaugurated. He had the complete backing, not only of Congress, but also most state governments. To hit the ground running, he knew he had to have a good team in place.

Over the years, Clinton has helped raise funds for Democratic candidates in Congress and down ballot races. She knows, as President, she can’t hope to bring about change all on her own. She needs a solid team behind her.

(We all need more Democrats in Congress if we hope to save this country—something we seem to forget every odd year election. We even need some independents. Among those who have received campaign funds directly from Clinton’s PAC is none other than Bernie Sanders, in his Senatorial race.)

The most recent attack against Clinton is that she’s not publishing transcripts for all her speeches given when she was a private citizen—something that’s never been asked of any Presidential candidate. Why do people want the transcripts? So they can cherry pick through the text, taking bits and pieces out of context in order to misrepresent who she is and what she believes. They did the same thing with her emails.

This isn’t transparency…this is fresh fodder for the  anti-Clinton machine, necessary because no matter how much she’s been bashed, she’s survived. The only difference now is that she’s being bashed from the left—an act that has caused deep fissures among those who have long fought in solidarity.

I don’t fault those on the left who don’t support Clinton because they believe Bernie Sanders has a better plan for the country. We each have our own interests and beliefs. I do, however, fault those on the left who repeat the GOP talking points, because they’re so obsessed over Sanders winning that they’ll burn anything in his path—and that includes the future of the country, because they’ll toss this next election to the GOP rather than work with the rest of us to keep what would be a complete disaster from happening.

Bernie or Bust is a shout from the privileged class, because they’re not a minority, or gay, or poor, or a woman who demands the freedom of choice, or Muslim, or an immigrant. They can call for a revolution, safe in the knowledge that they have nothing to lose.

The rest of us live in the real world. We know what’s at stake. I don’t believe Bernie Sanders has a chance for the nomination, but if he were to get it, I would support him.

I feel confident, though, that the Democratic nominee will be Hillary Clinton. She’s our best choice, as President, and our best chance at winning the election. She’ll be a good leader, building on what Obama started, but also adding her own personal touch, and achievements.

We’ll progress under a President Hillary Clinton presidency, and isn’t that what being a progressive is all about?

Ms. Squirrel is hiding in tree, until this is all over.

 

 

Categories
Political

Hillary Clinton: You’ve got Mail

Line of mail boxes

update

And then there’s this.

Earlier

There was a great deal of noise about the State Department’s release of Hillary Clinton emails yesterday, including the fact that 22 were kept back because they’re now deemed “Top Secret”.The timing couldn’t be worse because of the Iowa caucus on Monday, but in defense of the State Department, much of that is because of a schedule demanded by the Judge presiding over the FOIA request.

I find it unlikely this will have an impact on Clinton’s chances. One day later, the story has dropped from the headlines, probably because there’s been so many email releases, so many exclamations about “confidential information”, yet most of the “confidential” information has been so much ado about nothing.

As an example of that faux confidentiality, the Daily Caller posted an article yesterday about four emails that, rather than undermining Clinton’s credibility, actually provides some of the best evidence supporting Clinton’s claims that she never divulged classified or secret information. In its article, Four Sid Blumenthal Emails in Latest Clinton Release are COMPLETELY Classified, they breathlessly write.

The email is redacted in full, save for the names “Hillary” and “Sid.” The emails are classified as confidential and redacted in full because they contain foreign government information and information related to foreign relations and foreign activities.

When we look at the emails, what we find in each is that Blumenthal sent information to Clinton’s attention. Unless Blumenthal had a higher security clearance than Clinton, we can assume that Blumenthal discovered whatever information he found using either his own sources, or various publications of the day, and he then passed the information on to Clinton.

At no time, did Clinton respond with information back. In fact, other than forwarding a couple of the emails, her only response was to ask a State Department employee when a 100 meters finale was going to be.

I decided to take a look through the other released emails. What I discovered is a) Clinton doesn’t communicate much via email, and b) she really doesn’t know email etiquette. Frequently, someone would send her an email and CC Jacob Sullivan, in the State Department. Clinton would get the email, and then forward it on to Sullivan.

Even more humorous, many of the so-called “classified” emails Clinton received, were sent by the very departments who, I suspect, newly classified them in the recent releases.

In his writing for Politico Magazine, Matthew Miller, a former Department of Justice official, writes:

As a former Department of Justice official who regularly dealt with classified information, I am glad a team of officials from the FBI, the intelligence community and other agencies is not currently reviewing every email I sent and received while I worked in government. If they did, they would likely find arguably classified information that was transmitted over unclassified networks—and the same thing is undoubtedly true for other senior officials at the White House, the State Department and other top national security agencies.

The same would probably be true for most, if not all, of Congress.  I suspect many of our tweets on Twitter, and posts on Facebook, would also fail the intelligence community‘s interpretation of what is classified, secret, and even top-secret.

Yesterday’s top story on the emails has died out today, because you can’t keep crying “wolf” without people demanding  to see some actual teeth, and this story is toothless.

Now, let’s get back to discussing the issues.

Photo by Sam Javanrouth, used under CC License, modified by cropping

Categories
Environment Legal, Laws, and Regs Political

Cato: Neither the Bundys Nor the Hammonds are Poster Children for Land Use

Montage of photos of Malheur

During a Twitter exchange with Jonathan Wood, from the Pacific Legal Foundation, Jonathan sent me a link to a Cato Institute article on the armed takeover of the Malheur National Wildlife Refuge.  The Cato article condemns the Bundy actions, even as it deplores what it views as an overly harsh penalty for the ranchers (Dwight and Steven Hammond) at the center of the dispute.

The article notes that neither the Bundys nor the Hammonds are exactly poster children for the land use movement:

Property rights advocates who want to change public views need to find ranchers more appealing than the Bundys, who want to overgraze other people’s land without paying for the right to do so, or the Hammonds, whose unauthorized fire on federal lands threatened firefighters’ lives. Without better representatives–preferably ones willing to pay their own way and not rely on taxpayer subsidies–they won’t be able to capture the hearts and minds of the American people, which means the future of ranchers who depend on federal lands is dim.

The article also mentions Section 8 of the Constitution, which property and states rights people continually use to demand that the federal government turn over land to state control.

I can agree with the author, Randal O’Toole in his assessment of the Bundys and Hammonds, but disagree with him about the severity of the punishment the Hammonds received. And I disagree with his reference to Section 8, without mentioning the Property Clause, which does give the government right to own land:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.

However, even without mentioning the Property Clause, O’Toole does note that the only way to battle federal land ownership is via Congressional action:

The Supreme Court has heard hundreds of cases involving federal land and has never ruled that the Constitution does not allow the federal government to own land in the West. So any battle against federal ownership would have to be fought politically, not in the courts.

Supreme Court decisions have upheld the federal government’s right to own and maintain land, until and unless, Congress revokes this right. And even attempts by President Reagan to sell off all federal land failed. Why? As a Washington Post article notes, private ownership of the land didn’t suit ranchers because they would lose the free ride they’ve had from the government. In addition, environmentalists rose in one body to demand the government stop its actions. And it wasn’t just environmentalists who were alarmed: something about paving over Yellowstone, and putting McDs in the Grand Canyon just doesn’t quite suit the majority of people in this country.

Returning to O’Toole’s criticism of the sentence the Hammonds received,  was the punishment unjust?

It’s unfortunate that the law the Hammonds were charged under is named The Antiterrorism and Effective Death Penalty Act, because everyone focused on “terrorism” in defense of the Hammonds. The Hammonds aren’t terrorists, the critics scoffed.

Of course they aren’t terrorists. To call them terrorists is to lessen acts such as the recent shootings in California and Paris. But the Hammonds were tried and convicted, by a jury of their peers, for the following:

Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.

Dwight and Steven Hammond were convicted of deliberately setting a fire on federal land in 2001 that burned 139 acres. In addition, Steven Hammond was convicted of setting fire to federal land in 2006. They both claimed to be burning invasive species, or in the latter fire, protecting a crop of winter wheat. However, it was not their call to make—not only to set fire to federal land, but to their neighbor’s land, when the fire spread; particularly when it comes to a wildlife refuge, where incorrectly set fires could prove detrimental to not individual birds, but an entire species if endangered birds are threatened.

In addition, the 2001 fire was created not to burn invasive species, as the Hammonds imply, but to cover up an illegal deer hunt, according to a relative of the Hammonds who testified against them. They also endangered a three-person fire crew during the 2006 fire, almost trapping them behind a fire line. All of the Hammond fires, not just the two related to the criminal case, ended up costing the government over $600,000. The government sued the pair after the fires, and was able to recover $200,000, but we tax payers ended up footing the bill for the rest. The Oregonian noted the Hammonds paid $200,000 in 2014, and the rest, recently. That still leaves at least $200,000, or more, firefighting costs and damages to the tax payers.

The judge who originally sentenced them claimed that the mandatory five year sentence shouldn’t apply, because the fire was a “wilderness” fire, and in his opinion, that wasn’t what Congress intended for this law. However, I think we’ve all seen enough of “wilderness” fires this last year to know they are deadly, they are dangerous, they destroy homes, pets, people…they can even destroy entire towns. The appeals courts, rightfully, dismissed the unlawful sentencing and imposed the five year minimum.

Here, we need not progress beyond the first step.
Congress has “broad authority” to determine the appropriate
sentence for a crime and may justifiably consider arson,
regardless of where it occurs, to be a serious crime. Solem v.
Helm, 463 U.S. 277, 290 (1983). Even a fire in a remote area
has the potential to spread to more populated areas, threaten
local property and residents, or endanger the firefighters
called to battle the blaze. The September 2001 fire here,
which nearly burned a teenager and damaged grazing land,
illustrates this very point.
Given the seriousness of arson, a five-year sentence is not
grossly disproportionate to the offense.

This wasn’t the Hammonds’ first act of arrogant disregard for the welfare or concerns of others, either. When FWS attempted to build a fence to keep the Hammonds’ cattle out of the Refuge land around a watering spot, Steven Hammond parked a 25-ton Caterpillar earth mover on the fence line and refused to move it. Not only refused to move it, forcibly dropped the earth mover’s shovel near one of the federal employees in an act of intimidation.

The Hammonds were arrested for their actions,  but pressure from land-use groups, and Representative Wes Cooley, most likely kept them from being prosecuted.

arrest photo of Dwight Hammond

Cooley would later testify in a budget hearing for the Fish & Wildlife Service that the Hammonds had a successful injunction against the FWS, which would then allow them access to the land, but I can find no record in PACER to corroborate this statement. However, I did find an agreement between the Hammonds and various other organizations, including FWS, related to water rights in the region. This agreement did not specify that the Hammonds had the right to drive their cattle into the FWS land, only that they may divert water during the spring to another reservoir.

The Hammonds also refused to allow federal firefighting crews access to their land so they could fight fires, and tried to get the local Sheriff to arrest the crew for doing so.

As part of the sentencing deal the Hammonds made with the government, they agreed to give FWS first rights to purchase a parcel of Hammond property, but only if the Hammonds had to sell it in order to pay their fines. The Hammonds were able to pay their fines without selling the land, so the new adherence to the minimum sentence had nothing to do with a government attempt to get the Hammond land, contrary to what the land-use fanatics are proclaiming.

Misdirection and misinformation is a hallmark of any of the activities associated with the Hammonds. It is difficult to find the truth, among all the misrepresentations. Enforcing laws against people like the Hammonds isn’t all peaches and cream, either. In the article, Peril in the West: Enforcing Environment Laws Gets Scary, the author begins with:

Someone has threatened to kill Forrest Cameron, and to harm his wife and children.

Cameron, the manager of the Malheur National Wildlife Refuge, knows who threatened to kill him, and why. He doesn’t know who called his home in Princeton, Ore., to harass his wife and daughters. But he assumes it’s for the same reason he says Dwight Hammond threatened to shoot him: because Cameron was enforcing the law.

At least Hammond is consistent, he also threatened refuge managers in 1986 and 1988. No, I don’t find a sentence of five years to be disproportionate, at all.

As for Bundy boys, rather than piss in their own pond, they went to Oregon to piss in someone else’s. And that’s the least negative thing I can say about them.

Photo compilation:

Photos of Malheur National Wildlife Refuge
Sandhill Crane: Roger Baker, USFWS
Mule Deer: Barbara Wheeler, USFWS
Prescribed Burn: Carla Burnside, USFWS
Owl: Jim Maloney, USFWS

Arrest photo of Dwight Hammond from article about the arrest in the Burns Times-Herald, August 10, 1994.

Categories
Documents Political

Put that FOIA down and back away slowly

Latest last update

My friend Karoli wrote an excellent article on all this fooflah. She has more reach than I do, so hopefully this information will eventually work its way around to the original publications.

There’s enough BS about the Clinton emails without additional false associations.

Because we’re all damn tired of hearing about the Clinton emails.

last update

Confirmed. The documents were issued by the State Department in 2014, in response to a FOIA request by The Telegraph’s Philip Sherwell. They have absolutely nothing to do with Clinton, and were not on Clinton’s email server.

Update:

I believe the Philip Sherwell, who instigated the FOIA request, also is the author of this piece, in the Telegraph. I’ve asked him if this was so, and whether he was familiar with the recent stories. Will update when I hear back from him.

earlier

I noticed a story claiming to be about a “smoking gun” proving that Hilary Clinton knew she had top secret information on her server. They got the information from a Daily Mail story. The story has since been picked up by Newsmax, the Telegraph, the BBC, and many other publications too numerous to list.

Five minutes is all it took to discover the FOIA request that produced these documents from the State Department. The request is completely unrelated to Clinton or her email server. The request was initiated by a Philip Sherwell, in August of 2012, and the request was for “references concerning a meeting Saturday April 6, 2002 in Crawford, TX between George W Bush and Tony Blair.”

It has nothing to do with Clinton, and was not among the documents turned over related to the Clinton FOIA requests. We know this for a fact because the FOIA case number and release date are printed at the bottom of the documents. And it seems that the publications weren’t aware that this story was told previously…in 2006. That smoking gun is looking more like a cap gun right about now.

Categories
Government

That Wyoming Pond: newest battle between PLF and the EPA

EPA logo

update: 11/30/15

The EPA has responded to the lawsuit, asking the judge to refer the case for Alternative Dispute Resolution, rather than an extensive and costly litigation. As they note in the request:

  • Johnson did dam the creek without permit
  • There is no doubt this is in violation of CWA
  • The reason for the permit process was so the Army Corps of Engineers could evaluate the risk to the environment for a project
  • Both the Corps and the EPA attempted to discuss the dam with Johnson before issuing the letter of violation
  • The EPA did have a discussion with Johnson after the letter was issued is unsure why he suddenly broke off discussions (PLF comes to mind)
  • The EPA has not issued fines and believes there is a solution equitable to all parties, and asked for third-party assistance in ADR

Reasonable, and not the fire breathing over-reaching agency as portrayed by extremist libertarians, who believe everyone can do anything they want to the water and the air.

Much ado about nothing.

earlier

Last year I wrote about a Wyoming family and the big, bad EPA huffing and puffing at their door. Seemingly, the Andy Johnson family was being threatened with outrageous fines, just for putting in a simple stock pond. A little digging, though, showed that the story was far more nuanced. For one, the family had basically blown off any previous attempts at communication from both the Army Corps of Engineers and the EPA. It wasn’t until the EPA sent a notice of violation did they respond to the communications—by contacting the press and their congressional representatives.

In the story, I foretold of the likelihood of our friends at Pacific Legal Foundation (PLF) being on their way to the Andrew Johnson family’s side. This last week, my fortune telling skills were vindicated, when PLF filed suit in federal court on behalf of the Johnsons. And, as is typical for a PLF court case, the (primarily conservative) media has been inundated with videos and photos of family members, little children, and lots and lots of American flags. An example, complete with strategic American flag placement:

Now the refrain is that the Johnsons are being threatened with millions of dollars of fines, all because they put in a small dam, to create a little pond to water their livestock.

Not.

Let’s revisit the Johnson home, courtesy of Google Maps. The Johnson property boundaries are marked by lines in the satellite image, most likely fences. The first thing we’ll notice is that the satellite image of the area shows that the “little pond” is over an acre in size.

Johnson pond via satellite photo

The dock is still there. That’s that white rectangle next to the pond.

It’s a curious thing, this dock. In the court documents, PLF provides a copy of the permit application the Johnson’s filed with the state of Wyoming. In it, the state declares that the permit is “…for stock watering purposes only.” So if the water is for stock watering purposes only, why a dock? Come to that, why does the pond, whose only purpose is to water livestock, need to be stocked with different kinds of trout, ducks, and geese?

As for the livestock, returning once again to Google maps, I checked for the herds of cow, horses, and/or pigs that would necessitate a stock pond over an acre in size.

image of Johnson property

And I found what looks to be a pen with five animals, either cows, horses, or some other animal about that size.

image of stock pen

It is true that cows and horses are thirsty creatures; they need approximately 12 gallons of water a day. But a stock pond with over 5.07-acre feet of water? This is equivalent to 1,652,066.74 gallons. Via a Google search, I found an Army Corps of Engineers document that notes 50 head of cattle only need a stock pond of 3/4 acre. There is absolutely no way that Johnson will have 50 head of cattle on that small 8-acre plot of land.

In their complaint, the PLF lawyers stated the work was exempt as a “construction or maintenance of farm or stock ponds.” But what the lawyers left out is the line that proceeded the listed exemptions, ” Except as provided in paragraph (2) of this subsection, the discharge of dredged or fill material.” In paragraph 2, we find:

(2) Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section

In other words, if you’re maintaining an existing pond, no permit is necessary. If you’re building a new one, however, you need that permit. More importantly, the Army Corps of Engineers needs to ascertain whether the work being done is going to have an adverse effect on the water system.

Now, according to the folks at PLF, the Johnson pond isn’t having an adverse effect on the water system. In fact, according to their court documents (press releases, YouTube video, and so on), as well as an environmental assessment provided by Kagel Environmental LLC, the Johnsons have actually improved the area. But then, the Kagel report also mentions that, in their understanding, any stock pond is exempt from the CWA permit process. Well, we already know this isn’t true, and we’re not experts. But, let’s continue with the report.

In the report, the Kagels noted in their observation that Six Mile Creek terminates in an irrigation channel, and hence does not connect with any water system that would be considered covered under Section 404 permitting. What’s interesting, though, is when you read the permit application the Johnsons made to the state, it does note that Six Mile Creek is a tributary to Black’s Fork River, which is, in turn, a tributary to Green River—a river that transcends state borders and is most definitely under Section 404 permitting.

The Kagels also note that the pond captures the water, but then releases the same volume of water through a spillway. Therefore, they conclude, the pond doesn’t restrict the flow of the water. But artificially inserting spillways and dams into a water can have an extreme impact on the vitality of the water system, as well as an impact on the wild life dependent on it. And it doesn’t change the facts of the case: the Johnsons did dump 12 cubic yards of fill and concrete into the Six Mile Creek without first having such actions vetted by the Army Corps of Engineers.

That 12 cubic yards of material was the amount estimated by the Army Corps of Engineers/EPA. It doesn’t match the 10 cubic yards the Kagels noted in their report. By coincidence, the Kagel estimate places the Johnson discharge just under the limits for Nationwide Permit #18, which allows minor discharges of 25 cubic yards or less, but does require that a pre-construction notification be given to the Army Corps of Engineers for any discharge over 10 cubic yards of material.

The Kagels also claim that the Johnson pond improved the health and vitality of the water system. Returning again to Google Earth, the following are satellite images taken in 2002, 2006, and 2009. Seems to me that creek has always a viable ecosystem that’s natural for the area. No trout, true; but natural.

creek in 2002

creek in 2006

creek in 2009

One other bit in the Kagel report, was a rather odd paragraph in the cover letter for the report:

Before summarizing our site inspection, findings, and conclusions, etc., we’d like to clarify that despite the contention by EPA that they believe the alleged violation site is located in Utah, Mr. Johnson has assured us his farm is located in the state of Wyoming. In a “Letter of Potential Violation” dated May 22, 2013 addressed to Mr. Johnson and signed by James H. Eppers, Supervisory Attorney and Arturo Palomarers, Director, EPA’s Office of Enforcement, Compliance, and Environmental Justice, EPA stated that the alleged violation site is in the state of Utah. It’s therefore reasonable to assume that there may be another alleged Clean Water Act violation in Utah by someone with the same name, or in the alternative, that the EPA simply was unable to accurately identify or determine in which state Mr. Johnson’s farm is located.

This writing is both petty and unnecessarily snarky. That a simple typo would draw forth this paragraph leads one to suspect that there is a degree of personal animosity between Ray and Susan Kagel and either the EPA/the Army Corps of Engineers, or both. A simple Google search proves this to be true: Ron Kagel had sued the Corps, his former boss, related to its actions regarding what it perceived to be conflicts of interest, and what he claims is whistleblower retaliation. In addition, Kagel also claims that the Corps is targeting him in retaliation because of his work with another PLF court case, Sackett v EPA. We don’t know, though, the impact of his work on the case, because it was put on hold for a time. The case was only recently re-opened, and without the same fanfare as the Johnson Pond.

Nothing is ever as simple, or as black and white, as portrayed in press releases and media stories. PLF portrays the EPA as a bully, and Andy Johnson, an innocent farmer. Yet Johnson is a welder, by trade, who stated the pond was for the purpose of livestock watering but then builds a dock and stocks the pond with trout. In addition, in all of the press releases, PLF doesn’t once mention the fact that the EPA and the Army Corps of Engineers actually reached out to Johnson, several times, trying to open a dialog about his dam, and what he could do to mitigate any violation of the CWA.

The EPA has already remarked that it rarely issues the fines mentioned in its violations. It has to mention the applicable fines, though, as part of the legal document process. I’ve followed several EPA cases and even with large corporations, the EPA rarely issues the maximum fines it could assess. Most of the time with smaller cases, it just wants corrective action. But saying things like fines of $37,000 a day, or Johnson is facing millions in fines from the federal government, plays well to those who do little more than skim headlines before getting ready to pull out the pitchforks.

A simple pond is less so if you consider the ramifications to the rest of society. If everyone who had a creek, stream, or river flowing through their property decided to dam it up, what would be the overall impact? Rather than majestic rivers, and crystal clear creeks and streams we can all benefit from, we’d have a succession of stock ponds, geared specifically to each owner’s use, regardless of the impact on others. We’d have court fights, and gun fights, and a great deal of animosity between neighbors.

The Kagels map of the pond shows it stopping at the border of Johnson’s property:

map in Kramer report

Returning to the Google satellite view of the property, taken in 2014, we can see for ourselves that the water is backing up on to the neighbor’s property. And one thing the satellite images can’t show is how much the creek’s ecosystem has been impacted by having the dam in its path. Or what exactly happens to that flow of water in a dryer year.

Johnson pond via satellite photo

I’m not a lawyer, but in my opinion, the court case will be a slam dunk. The Johnsons dumped 12 cubic yards of material into a creek, which ultimately feeds into a river that crosses state borders. They did so without a permit. Rather than work with the EPA or Corps, they turned to the Tea Party Press and exclaimed about the little guy and the big bad federal government. As it is, their pond seems to also be a violation of Wyoming state law, since the Johnson’s are, in my opinion, using it for purposes other than watering their stock. I imagine, though, that Wyoming would just as soon be left out of this bramble broth.

We need to take a moment to remember exactly what the Clean Water Act is for, and why the EPA is enforcing it: both exist to ensure clear, clean water and healthy ecosystems that benefit all of us, not just a few. We can’t continue to get caught up in this David vs Goliath romance, manufactured by libertarian interests who would like nothing more than to see our rivers reduced to a series of privately owned, barb-wire fenced ponds, each with their Stars and Stripes flag, flying high.