Andy Johnson EPA Consent Decree

Picture of Andy Johnson's dam

Previous coverage here and here

Andy Johnson created a “stockpond” by building a dam on a creek that is covered under the Clean Water Act. The EPA issued a violation to him for not getting a permit for unauthorized dumping in said creek. The solution outlined in the violation was to work with the agency to remediate the damage. If he didn’t comply, he could face significant fines.

Rather than work with the EPA, Johnson sued, to the accompaniment of press conferences, news storiesCongressional hearings, op-ed pieces by Paul Ryan, and videos featuring a plethora of American flags and small children.

March 22, lawyers with the US Department of Justice and representing Andy Johnson filed a consent decree in court to resolve the court case of Andy Johnson V EPA. The consent decree outlines steps that Johnson must take in order to settle the matter. These are:

  1. Plant dormant willows partially around the pond he created, and ensure they live until September of 2017.
  2. The site must be monitored for invasive species until September of 2017.
  3. Fence the north side of the pond to keep livestock away from the planted areas. The fence must be maintained until September 2017.

That’s it.

I obtained the Administrative Records for this case from the EPA. These are records the EPA maintains for any violation or possible violation, which are then submitted to the courts if the violation results in a court case. In the Administrative Records we discover:

  • That a neighbor warned Johnson he needed a permit to build the dam he was building. He was warned before he started, and again during the work. The same neighbor also asked to be notified when Johnson was informed of the complaint, as the neighbor wanted to notify the Sheriff’s office ahead of time because of other unspecified actions Johnson had taken against the neighbor.
  • That same neighbor, or neighbors, had significant problems with the work, detailed in photos showing potential points of erosion and problems with shared driveways, and silt contamination of surrounding areas.
  • Wyoming gave Johnson a stockpond permit, even though the State knew Johnson was really building a fish pond, “with the understanding that the local official could use it”. Which “local offical”? This isn’t given, but if I lived in that area, I sure would like to know which “local official”.
  • Regardless of the “local official” who would also benefit from the pond, the general feeling in the  local community was that they did not like the pond and felt “if this type of project is allowed to happen“, it would set a precedent that would then be followed by others in the area.
  • Johnson had one single horse, which is sufficient for Wyoming to give a stockpond permit, but the neighbor never saw the horse actually use the “stockpond”.
  • The construction of the simple “stockpond” required a heavy construction plow, and what looked like a whole lot of rock and concrete.
  • The resulting pond easily exceeded the State mandated 20 acre feet as maximum size for a “stockpond”.
  • The “stockpond” is an “ongoing source of irritation between neighbors“. Yeah, we caught that.
  • The County was concerned about the “stockpond”: that it was misrepresented, that it would cause problems with neighbors and an adjacent county road, and that the public wasn’t given an opportunity to comment. “It would appear from the permit that this reservoir has been constructed under the pretense of providing waters to livestock or wildlife although this is an eight (8) acre, residential subdivision.”
  • It’s necessary to maintain the same flow of water for downstream fisheries, even in low-flow times. A dam with a spillway can adversely impact this flow.
  • Though the dam doesn’t look it might blow and take out the roadways (knock on wood) it did puzzle the State engineers as to why it didn’t match the permit request to the State.
  • Andy feels entitled

Well, then. Seems there is much more to this “stockpond” than Mr. Paul Ryan mentioned in his opinion piece, or reflected in the video with all those American flags.

I’m disappointed in the consent decree. Johnson’s actions were an egregious violation of the CWA. I have received documents from the Justice Department in response to a FOIA about the communications leading to this decree, and will post an update.

 

 

 

Nest: Don’t toss it on the Smart Home dead pile just yet

Nest thermostat set to cool 74 degrees

Having heavily invested in Nest products, it’s disconcerting to read articles with titles such as Nest, Google’s $3 billion Bet, May Be in Trouble, or With $340 million in revenue, Nest is underperforming, and its future at Google is at risk. If Google dumps Nest, then who is going to maintain my Nest Protects (smoke and carbon monoxide detectors), thermostat, and Dropcam/NestCams?

The short version of the stories is that Nest is under-performing, it’s having problems with management, and talent is jumping ship. Well, Google, oh, sorry, Alphabet, can fix all of these problems: solve the management problems and work on keeping the necessary staff onboard. Alphabet/Nest also needs to roll out new products and integrate the Nest products with OnHub, which, from a smart home perspective, is dumb as a stump. Both efforts would be an interesting challenge to employees and engineer fresh interest in the brand.

I like my Nest products. I like the softly glowing green ring from my Protects when I turn out the light, letting me know they’re watching out for me. I also like that I can see how their battery is holding up just by using my smartphone. No more battery-low beeping in the middle of the night.

My one Dropcam, and a second NestCam are terrific. They’re the only video cameras I know that you can install indoors, point outdoors through windows, and get a good picture—whether daylight, or illuminated by outdoor lights. They adjust beautifully to changing light conditions, are quite responsive, and you can turn them off when you don’t need them.

My Nest thermostat is very useful…other than the one time the software glitch drained all the battery, leading to some very embarrassing moments for Nest and Alphabet. But my energy use has dropped because of the thermostat, and I have more finite control over what happens, and when.

I also have an IFTTT recipe where my Netatmo  triggers my Nest thermostat to turn on the fan, when it detects carbon monoxide levels exceeding 1500ppm. No more groggy, sleepy days working at the computer.

This IFTTT capability isn’t the only new integration. I can now control the thermostat using Amazon’s Echo, and in case of a fire, the Protects trigger my Philips Hue lights to briefly turn on bright red, to wake us up, and then dim red, which is better for seeing in smoke. They also flash yellow when there’s a warning.

What’s been missing from Nest in the past was smart home integration with other products. The division is now getting its act together in this regard. It would be a shame to cut it loose when it’s just now starting to get interesting.

Come on Alphabet, if you’re going to be a multi-headed hydra, then you have to know when to step back and when to step in. If the head of Nest, Tony Fadell, is as bad as people are saying, then toss his butt into the void and bring in fresh talent. If he isn’t that bad, then defend him. Either way, demonstrate your commitment to the company. No one is going to buy your products, no matter how shiny, if people think you’re going to cut both the products and the customers, loose to fend on our own.

A good place to start showing commitment is demonstrating some new smart home magic: Nest, meet OnHub. OnHub…OnHub…wake up, OnHub…meet Nest.

Excerpts from Court Documents for the 2012 Cliven Bundy Court Case

Bundy's cows

Today, a Judge ordered that Cliven Bundy be held pending trial. In the request to hold Bundy, the prosecutor, Charles Groder, wrote:

Bundy is lawless and violent. He does not recognize federal courts – claiming they are illegitimate – does not recognize federal law, refuses to obey federal court orders, has already used force and violence against federal law enforcement officers while they were enforcing federal court orders, nearly causing catastrophic loss of life or injury to others. He has pledged to do so again in the future to keep federal law enforcement officers from enforcing the law against him.

The document also details one experience that BLM agents had with Bundy’s family—details that read more like Deliverance than reality.

On June 5, 2015, three civilians working on behalf of the BLM traveled to the Gold Butte region for an overnight assignment involving site surveys, which included surveying cattle troughs and other cattle-related sites. At the final site a truck came up the road at around 6:30 p.m. and parked behind the civilians’ truck, blocking them in. One female employee approached the truck and observed a man who appeared to be 50-65 and who was subsequently identified by her as Cliven Bundy, and a younger man (18-25), subsequently identified by her as Arden Bundy, in the truck. Bundy said to her in a joking manner that they had been chasing these BLM employees all day. He asked why they were there and she said they were there to camp. Bundy said they were welcome to stay and that he was there to fix a leaky pipe and then feed the cattle.

At approximately 9:00 pm that night, the employees heard a vehicle coming up the road and stop approximately 500 meters from their camp. Three gunshots or popping noises were fired in fairly rapid succession. The vehicle then drove away. At approximately 10:00 pm, a vehicle came to the same spot and again three gunshots were fired in rapid succession, which one employee understood is sometimes meant to signal danger. The employees also heard several male voices but could not make out what was being said. They could see headlights in the direction of their camp. After a few minutes, the vehicle drove away. The employees immediately packed up their camp and left Gold Butte, returning to Las Vegas after 1:30 in the morning.

No surprise that the Judge denied Cliven Bundy’s request for release pending trial.

I’ve followed the Bundy case for years. Reading through the criminal documents reminded me of the hundreds of pages of exhibits and sworn statement (now accessible at Burningbird Docs) filed in the Government’s 2012 case against Bundy. I thought I’d pick out some of the interesting bits to share.

One of the exhibits contains a map outlining the range that Bundy’s cattle roamed. Looking at it, I’m surprised they haven’t shown up in Las Vegas. They have shown up in the Lake Mead National Recreation Area (NRA), at one point forcing a closure

Trespass and stray cattle have damaged or destroyed natural and cultural resources within Lake Mead NRA. In addition, trespass and stray cattle present a serious threat to public safety by roaming on public roads, causing traffic accidents, and threatening people in the Park. In the past, parts of the Park were closed because of attacks of trespass or stray cattle on people in the park. Because responding to trespass and stray cattle requires the NPS to re-direct staff and resources from other needed functions in the Park, the cattle have a significant adverse affect on Park operations. Because Cliven Bundy is the only person to have cattle within Lake Mead, I believe that damage to natural and cultural resources, the threats to public safety, and the affect on Park operations can be attributed to Mr. Bundy’s cattle.

The prosecutor’s document noted that Bundy may call himself a rancher, but is anything but.

While Bundy claims he is a cattle rancher, his ranching operation – to the extent it can be called that – is unconventional if not bizarre. Rather than manage and control his cattle, he lets them run wild on the public lands with little, if any, human interaction until such time when he traps them and hauls them off to be sold or slaughtered for his own consumption. He does not vaccinate or treat his cattle for disease; does not employ cowboys to control and herd them; does not manage or control breeding; has no knowledge of where all the cattle are located at any given time; rarely brands them before he captures them; and has to bait them into traps in order to gather them.

In the 2012 court case documents,  there are many photos of trespassing cows, including several of dead and dying cows. A Parks ranger investigation report wrote about finding a group of dead cows, the state of which contradicts the claims of a loving caretaker that Bundy and his minions have claimed to the press.

On July 09, 2008 I received a telephone call from my supervisor, U.S. Ranger Lisa Wilson. She informed me she had been advised there was a bunch of dead horses off of Gold Butte Rd., near a powerline road, on the opposite side of Gold Butte Rd. from some farms, uphill from an abandoned trailer.

I investigated and found myself on public lands, up a wash directly across the road from the Bundy Ranch, at GPS coordinates N36 42′ 55.6″ and W114 13′ 53.9″. I observed at least eleven dead cattle, including one calf and one horse. The animals were in an advanced state of decomposition; however, of the cattle, only the calf had its ears intact. Two of the cattle had colored nylon rope still around their necks.

Bundy did put in some minimal caretaking, but always on government land, which leads one to wonder whether he was caring for the cows, or making modifications that he thought would allow him some claim to the land.

He would build corrals of rusty metal and bring in tankers of water, setting them up on in protected areas. He’d leave garbage about, and also fence the areas in with barbed wire, and post No Trespassing signs. When we hear about the damage the marauders inflicted on Malheur, and compare that to the damage Bundy did to the Lake Meade area, we’re seeing a trend—a gross disrespect for anything publicly owned. A disrespect to we, the people. The occupation of Malheur was less a protest against government overreach, and more an homage to Daddy Bundy, and his megalomania. And the idiots who called themselves “militia” followed blindly along, still unaware of how badly they’ve been duped.

But to return to the documents, Bundy defended himself in the civil case. You can see his peculiar interpretation of the law in documents labeled 9, 30-32,  and 34. The government also deposed him, and he admitted he would do “whatever it takes” to prevent the government from removing the cattle.

Q. Now, let’s go back to the question. Let’s assume the federal authorities have the authorization to present themselves on land, whether you call it your ranch or the former Bunkerville Allotment, or for that matter the new trespass lands, and they’ve got the authorization in hand to remove cattle that belongs to you and they literally, physically, take the steps necessary to accomplish that right there and you’re standing by. Are you going to undertake any effort to physically stop that?

A. Yes.

Q. What efforts would that be?

A. Whatever it takes.

Q. Okay. Would that include — when you say “whatever it takes,” would that include the soliciting, the assistance of neighbors, friends, family, supporters of yours to do whatever it takes in the scenario I just described?

A. Yes.

The government captured hundreds of photos of damage and cows. The documents labeled 20 through 26 contain most of the photos, as well as the sworn statements.

The documents also detail the costs. There’s been some discussion among the media that the government hasn’t provided a detailed cost accounting for the million dollars frequently quoted. Even a casual look through the civil case documents shows us that a million dollars doesn’t even begin to cover the damages—that’s just for grazing fees and fines.

One document lists damages in one area at over $47,000. Another detailed the costs to track where the cattle were located at $91,000. (And this was only one of several investigations over the years.) Another document had a bill submitted to Bundy for unauthorized grazing and fines of close to $300,000. Yet another provided a table of costs totaling over $30,000. The one million dollars of fees and fines talked about with Bundy doesn’t even begin to approach how much this man has cost the government. And yet he wants the tax payers to pay for his lawyer, too.

The ongoing conservation work at Malheur was interrupted because of the Bundy invasion. There were  interruptions in important restoration work in the Lake Meade area, too, because of his cattle.

The implementation of this $1,000,000 restoration project in FY 2013/2014 was dependent on the removal of all unauthorized livestock from the Virgin River ACEC and adjoining areas within the Gold Butte ACECs. Smaller restoration pilot projects have shown that even when an area has been fenced to keep the cattle out of a site, the cattle still get in and destroy the restoration work. For this reason, the BLM and other outside partners are not able to invest this kind of money on a restoration project that has a high probability of being damaged or destroyed by cattle. Because of the continuing presence of trespass cattle on the public lands, this funding was reallocated to lower priority restoration areas that do not benefit the endangered SWFL, and where unauthorized livestock grazing is not an impediment to restoration activities. Those lower priority project sites will not be eligible for the Walton foundation matching funds since none of those areas are within SWFL habitat and therefore do not directly benefit the endangered SWFL.

The cows, themselves, were dangerous.  The civil case documents detail a truck/cow collision, and Bundy was sued when another  driver hit one of his cows, and was seriously hurt. Bundy tried to push the blame for that one on to the state. Due to lack of care, the cows have turned feral. Contrary to the fluffy images of cows from dairy companies, feral cows are large, can be aggressive, and have wicked horns. The cows threatened people, to the point where national park areas had to be closed to the public, for their own safety.

In all of the sworn statements by government employees attached to the civil care, we see evidence of the Bundy family’s intimidation tactics. Employees were warned, repeatedly, never to confront Bundy.  In one instance in the 2012 court documents:

While we were finishing gathering our equipment, a truck approached us from the east (we were coming from the west), stopped and parked facing our vehicle on the narrow backcountry road, leaving no room for either vehicle to get by.

An older white male stepped out of the vehicle and began to express his displeasure about the construction of the fence. Although we were on federal land and there were no private lands nearby, he referred to the Gold Butte area as his ranch and complained that the fence would interfere with feeding his cows.

He asked for our names, told us to contact the sheriff before coming to his “property” and indicated he might file a lawsuit against us. We attempted to explain, without success, that he should contact the BLM Los Vegas Field Office and that we were simply field personnel.

He abruptly ended the conversation after approximately 5 minutes then turned and headed back to the back of his pickup truck. He returned with a square box in hand that resembled salt licks we had seen at other areas in Gold Butte. He stepped over the fence and walked through the closed area where he was soon behind a small knoll and out of sight. At this point another vehicle pulled up behind us and was also waiting to get by, but neither of us could pass due to the vehicle in front of us.

For over twenty years Bundy and his family and his bully boys have destroyed critical habitat, degraded land, damaged cultural sites, and harassed and intimidated federal employees. His cows have been in car collisions, have threatened people, and have forced the government to shut down recreational areas that were supposed to be open for all. The charges against Bundy and his sons don’t even begin to cover the extent of the harm they have wrought.

I was surprised Bundy made the trip to Portland. True, it was obvious that he wasn’t happy about his sons stealing his fame, and the temptation to get in from the camera must have been great, but his own native caution should have outweighed all. This is a man who likes to lead from behind—to trigger others to do his dirty work for him when he can, preferring to leave his own particular brand of intimidation for smaller, unarmed groups. But he did travel to Portland, and he was busted. Frankly, I hope he rots in jail for the rest of his life.

In the meantime, there are over 900 cattle on government land, still causing damage, still suffering from lack of care. The BLM is hesitant to send people back into potential danger, so right now, there’s no oversight in the Gold Butte area. When the BLM does move, it will cost the government over $100,000 to remove all the cattle. I suspect, though, that the next time someone tries to stop this effort, the very capable FBI agents who handled the Malheur take-over will be nearby.

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

Smart Home, Older House, Cold House

Update:

Several publications have come out today, including one from the New York Times, about a software update being responsible for the battery drain. That’s one bad bug, and Nest is going to take a major credibility hit because of it.

We also had problems with our Nest Protects (smoke/carbon monoxide detection) a few weeks prior, with none of them being able to access the cloud. However, they work without wireless access, including the ability to connect and communicate with each other, so it was more of a nuisance than a problem. I do wonder, though, if the same bug didn’t get introduced into all Nest products.

In the meantime, adding a C wire didn’t work for us. It would have required too many holes being drilled, and damage to floor and wall. We’re going with the add-a-wire feature, instead.

Earlier:

Our home was built in 1986, which means it’s on the border between modern, new standards and the old way of doing things.

When we tried to add new GE smart light switches, we found that most of the switches don’t have a neutral wire needed to power the switches. The old, unintelligent switches didn’t need power—they’re just on or off. The new ones, need power to communicate with the controlling hub and other compatible devices.

The same applies to our thermostat: we don’t have a ‘C’ or common wire that runs from the heating/cooling system to the thermostat.

We have a second generation Nest thermostat, and not having a ‘C’ wire is supposed to not be an issue with this thermostat—at least with most HVAC systems. The device gets its power from the “red” wire (the power line) by “power stealing” a little bit of the power that comes through the line. The problem with this approach is if the system is very active, the device doesn’t have a chance to charge the battery as frequently and you can lose thermostat functionality, or even drain the battery.

The other issue is if the HVAC equipment isn’t running, at all, and the device needs power. What the Nest thermostat does is “pulse” the equipment to get a bit of juice, but supposedly very quickly, so that the equipment doesn’t come on. If this doesn’t sound like something you would want to do,  you’ll get agreement from many HVAC manufacturers.

Then there’s the situation that happened last night. It was very cold, so the system was running intermittently  through the night. In addition, I suspect from chatter in the Nest forum, the thermostat received a software update in the night. I also suspect that the software update drained what little power the battery had, to the point where I was faced with a completely black device this morning. I couldn’t even run it manually.

When the temperatures are below freezing, you don’t want a thermostat that doesn’t work. At this point, you’d settle for a dumb thermostat, as long as it turns on the heat.

I knew I could power the device using a micro-USB cord, connected to my computer. I connected it for about a half hour, charging the battery enough that I could connect it to the wall plate and turn on the heat. Of course, while the heat is running, the device isn’t charging, but it should have enough juice to take the chill edge off the house.

If we weren’t at home, I’m not sure if the device would have even been able to start charging without my assistance. Normally, the Nest thermostat shows a blinking red light when the battery is very low and charging, but it wasn’t showing this light this morning. It was completely drained.  We could have come home to frozen pipes and damaged walls.

Assurances from Nest aside, it’s time to update our wiring. We have a couple of options. One is we could attach a Venstar Add-a-Wire Adapter, which turns a 4-wire setup into the 5-wire setup needed for smart thermostats. Or we can run a ‘C’ wire from the HVAC to the thermostat. Though the latter approach is more expensive, we decided if we were going to fix the problem, we’d do so without a hack and we’d fix it once and for all.

Tomorrow morning our HVAC company is coming out to run the new ‘C’ wire to the thermostat, and hopefully we’ll never again wake up to a freezing cold house. If we do, than the Nest thermostat is being replaced by an Ecobee.