Department of Interior finally settled the Native American trust case

November 27, 2012

Here’s a headline that shouldn’t be buried in lame duck Congress folderol nor holiday news doldrums:  The U.S. Department of Interior (DOI) and plaintiffs in the Cobell case reached a settlement that the court has approved. This is the end of litigation — parties hope — on the long-running saga of government mismanagement of trust accounts held by the Bureau of Indian Affairs (BIA) for the benefit of Native Americans, over the last century.

Billions of dollars went missing to bad accounting.

Elouise Cobell met with President Barack Obama in the Oval Office, 2010

Elouise Cobell met with President Barack Obama in the Oval Office, in December 2010, after the passage and signing of the Claims Resolution Act of 2010.

Wikipedia has a concise, but thorough enough description of the case and its predecessors:

Cobell v. Salazar (previously Cobell v. Kemp- thorne and Cobell v. Norton and Cobell v. Babbitt) is a class-action lawsuit brought by Native American representatives against two departments of the United States government. The plaintiffs claim that the U.S. government has incorrectly accounted for the income from Indian trust assets, which belong to individual Native Americans (as beneficial owners) but are managed by the Department of the Interior (as the legal owner and fiduciary trustee). The case was filed in the United States District Court for the District of Columbia. The original complaint asserted no claims for mismanagement of the trust assets, since such claims could only properly be asserted in the United States Court of Federal Claims.

Arguments, appeals and deeper investigation strung the case out; lead plaintiff Elouise Cobell, a member of the Blackfoot Tribe, did not live to see the end of the case (she died in 2011).

It’s difficult to judge whether justice has been served in this case, and that judgment may not be ripe for many years.  Ending the litigation should create some hope for better conditions on Indian Reservations, and for Native Americans across the nation.  Especially the education benefits of the law required to settle the case, could provide a foundation for future prosperity of the affected tribes and people.

DOI announced the settlement in a press release November 26 (links in the body of the release added here):

Salazar Announces Final Steps on Cobell Litigation and Implementation of Settlement


Settlement includes land consolidation program to help promote tribal self-determination and strengthen economic development

11/26/2012

WASHINGTON, D.C. – Secretary of the Interior Ken Salazar today lauded the final approval of the Cobell settlement and outlined steps that Interior will take to help implement the historic $3.4 billion settlement. The settlement resolves a long-running class action lawsuit regarding the U.S. government’s trust management and historical accounting of individual American Indian trust accounts. It became final on November 24, 2012, following action by the Supreme Court and expiration of the appeal period.

“With the settlement now final, we can put years of discord behind us and start a new chapter in our nation-to-nation relationship,” said Salazar. “Today marks another historic step forward in President Obama’s agenda of reconciliation and empowerment for Indian Country and begins a new era of trust administration.”

The settlement includes a $1.5 billion fund to be distributed to class members for accounting and potential trust fund and asset mismanagement claims. The settlement also includes a $1.9 billion fund for a land consolidation program that allows for the voluntary sale of individual land interests that have “fractionated,” or split among owners, over successive generations. Fractionated land can have many owners – sometimes hundreds or more – diminishing the land’s value and making it difficult for individuals to use the land for agriculture, business development, or housing from which tribes can benefit. Up to $60 million of the $1.9 billion fund may be set aside to provide scholarships for American Indians and Alaska Natives to attend college or vocational school.

“This marks the historic conclusion of a contentious and long running period of litigation,” said Hilary Tompkins, Solicitor for the Department of the Interior. “Through the hard work and good will of plaintiffs, Interior and Treasury officials and Department of Justice counsel, we are turning a new page and look forward to collaboratively working with Indian country to manage these important funds and assets.”

Payments to Claimants
The Claims Administrator will now begin overseeing disbursement of the $1.5 billion to nearly 500,000 class members. The court previously approved GCG, Inc., as the Claims Administrator. The Department of the Treasury will transfer the $1.5 billion to an account at JP Morgan Chase, a bank approved by the court. Per the terms of the settlement agreement, Interior’s Office of the Special Trustee (OST) has assisted GCG with its database by supplying contact information of individual class members from its records.

“We will continue to work with GCG to ensure it has the information it needs to make expeditious and accurate payments,” Deputy Secretary of the Interior David J. Hayes said. “At the same time, we’re focused on making meaningful improvements to our trust administration so that we’re more transparent, responsive and accountable in managing these substantial funds and assets.”

Trust Land Consolidation Program
The Department of the Interior will use $1.9 billion from the Trust Land Consolidation Fund to acquire interests in trust and restricted lands that have “fractionated” over successive generations since the 1880s.

Individual owners will be paid fair market value for such interests with the understanding that the acquired interests will remain in trust and be consolidated for beneficial use by tribal communities. Interested sellers may convey their fractional interests on a voluntary basis. Currently, there are over 2.9 million fractional interests owned by approximately 260,000 individuals.

While the settlement was pending, Interior held a series of consultation meetings with tribes in 2011 to ensure that this landmark program incorporates tribal priorities and promotes tribal participation in reducing land fractionation in a timely and efficient way. These discussions informed a draft land consolidation plan released in February of 2012. Interior is incorporating public comments and expects to release an updated plan by the end of the year for additional consultation.

“The land consolidation program is our chance to begin to solve a fractionation problem that has plagued Indian country for decades,” said Interior Assistant Secretary of Indian Affairs Kevin K. Washburn. “We are anxious to get started. We know that Interior’s continued outreach through consultations with Indian Country is a crucial component to accomplishing truly open government-to-government communication”

Congress approved the Cobell settlement on November 30, 2010 as part of the Claims Resolution Act of 2010. President Obama signed the legislation on December 8, 2010. The district court approved the Cobell settlement on August 4, 2011 and it has been upheld through the appeals process.

For additional information about the individual class-action payments, please contact GCG, Inc. at 1-800-961-6109 or via email at Info@IndianTrust.com

For additional information on the Trust Land Consolidation Program, please visit http://www.doi.gov/cobell/index.cfm

More:

  • Page in memory of Elouise Cobell, the lead plaintiff in the case — who died in 2011; President Obama described Ms. Cobell, and the litigation, in remembering her:  ¶”As treasurer of the Blackfeet Nation, Elouise spoke out when she saw that the federal government had failed to account for billions of dollars that it owed to hundreds of thousands of her fellow Native Americans. In 1996, she filed suit, and for 15 years, tirelessly led a legal battle, with seven trials, 10 appeals, and dozens of published decisions. She fought her battle not just in the courts, but in the halls of Congress before finally securing justice for more than 300,000 American Indians and Alaska Natives in the form of a $3.4 billion settlement.  ¶”The agreement reached in Cobell v. Salazar marked the largest government class-action settlement in our nation’s history. The scholarship fund this settlement established will give more Native Americans access to higher education. Tribes will have more control over their own lands. Elouise’s tireless efforts strengthened the government-to-government relationship with Indian country, and a generation of Native Americans and all Americans has seen the promise of justice realized.  ¶”Last December, I had the privilege to meet with Elouise in the Oval Office prior to signing into law a bill to make things right. The Claims Resolution Act of 2010 is a direct result of the settlement that bears her name. It is proof of an enduring American idea – that change is always possible.”

Gilbert and Near, Woody’s “Pastures of Plenty”

October 20, 2012

Woody Guthrie wrote of freedom . . . when was this written? 1930-something?  [1941, it turns out.]

Ronnie Gilbert and Holly Near combine on one of my favorite arrangements of the song.

This film must be at least ten years old, maybe more.  The song is more than 60 years old [71 years -- from 1941].

It’s still a powerful indictment of corporate greed, heartless and oppressive immigration policies, and it’s a case for a strong labor movement.

Be sure you vote in the November 6 elections.  Sing this song on the way to the polls.

More:


July 19, 2012

Ed Darrell:

Found this at Under the Lobsterscope — our incarceration rates form a testament to one of the greatest failures of the U.S. over the past two decades. Live links added here for your convenience.

(This may be the last time we use the reblog feature — it’s very clunky!)

Originally posted on Under The LobsterScope:

 

Here are the facts… you make your own conclusion. Personally, I think making prisons a private industry sucks— I wonder when they’ll be exporting the prisoners to China.

 

View original


Heart of Atlanta Motel and civil rights

December 28, 2011

PG posted this photo in one of his collections at Chamblee54:

Heart of Atlanta Motel, 1956 - Special Collections and Archives,Georgia State University Library

Heart of Atlanta Motel, 1956 - Special Collections and Archives,Georgia State University Library

I wondered whether this is the motel in the case testing the 1964 Civil Rights Act — and sure enough, it is.  The case was decided, finally, by the U.S. Supreme Court in 1964, Heart of Atlanta Motel, Inc., v. United States, 379 U.S. 241 (1964) .

This important case represented an immediate challenge to the Civil Rights Act of 1964, the landmark piece of civil rights legislation which represented the first comprehensive act by Congress on civil rights and race relations since the Civil Rights Act of 1875. For much of the 100 years preceding 1964, race relations in the United States had been dominated by segregation, a system of racial separation which, while in name providing for “separate but equal” treatment of both white and black Americans, in truth perpetuated inferior accommodation, services, and treatment for black Americans.

During the mid-20th century, partly as a result of cases such as Powell v. Alabama, 287 U.S. 45 (1932); Smith v. Allwright, 321 U.S. 649 (1944); Shelley v. Kraemer, 334 U.S. 1 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950); NAACP v. Alabama, 357 U.S. 449 (1958); Boynton v. Virginia, 364 U.S. 454 (1960) and probably the most famous, Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), the tide against segregation began to turn. However, segregation remained in full effect into the 1960s in parts of the southern United States, where the Heart of Atlanta Motel was located, despite these decisions.

The Atlanta Time Machine, a great collection of photos in the history of Atlanta and Georgia, has more photos, and this description of the site:

The Heart of Atlanta motel, located at 255 Courtland Street NE, was owned by Atlanta attorney Moreton Rolleston Jr.  Rolleston, a committed segregationist, refused to rent rooms at his hotel to black customers.  Upon passage of the Civil Rights Act of 1964, Rolleston immediately filed suit in federal court to assert that the law was the result of an overly broad interpretation of the U.S. Constitution’s commerce clause.  Rolleston represented himself in the case, HEART OF ATLANTA MOTEL, INC. v. UNITED STATES ET AL., which  went all the way to the United States Supreme Court.  Rolleston lost when the Supreme Court ruled that Congress was well within its powers to regulate interstate commerce in such a manner.  The Hilton Hotel now stands on the former site of the Heart of Atlanta Motel.

Texts in law school rarely have illustrations.  I know the motel mostly as a citation on pages of text, great grey oceans of somnambulent text.  This case is important in civil rights, though it is mentioned almost never in history texts.  What are these cases really about?  These photos offer us insight.

The Heart of Atlanta Motel aspired to greatness in the late 1950s and 1960s — evidenced by this publicity flyer photo from the Atlanta Time Machine; notice the flag flying for the motel’s Seahorse Lounge (Atlanta is landlocked):

Heart of Atlanta Motel publicity photo - Atlanta Time Machine

Heart of Atlanta Motel publicity photo - Atlanta Time Machine; not just a podunk "motor lodge," but a "resort motel." Click for larger image.

For the 1960s, this place offered great amenities, including two swimming pools and in-room breakfast service.

Flyer for the Heart of Atlanta Motel, circa 1960 - Atlanta Time Machine image

Flyer for the Heart of Atlanta Motel, circa 1960 - Atlanta Time Machine image

This photo is amusing — I can just imagine the difficulties of launching a motor boat of this size in one of the swimming pools, obviously for a publicity stunt.  The photo is dated February 27, 1960, in the Pullen Library Collection.

Boat in the pool at the Heart of Atlanta Motel, 1960 - Atlanta Time Machine image

Boat in the pool at the Heart of Atlanta Motel, 1960 - Atlanta Time Machine image

To compare how times have changed, you may want to look at this aerial photo of the area, including the Heart of Atlanta Hotel, and compare it with modern photos which show the Hilton Hotel that replaced the property.

Rolleston appears to have had a big ego.  As noted above, he represented himself in this case, and he argued it in the Supreme Court.  Here’s a picture from about that time, from the University of Missouri-Kansas City Law School “Famous Trials” site:

Moreton Rolleston, Jr., owner of the Heart of Atlanta Motel and the attorney who argued the case at the Supreme Court - UMKC Law School image

Moreton Rolleston, Jr., owner of the Heart of Atlanta Motel and the attorney who argued the case at the Supreme Court - UMKC Law School image; photo: Wayne Wilson/Leviton-Atlanta

You may decide for yourself whether this fits the old legal aphorism that a lawyer who represents himself in a case has a fool for a client.  The Oyez site at the University of Chicago provides access to the audio of the oral arguments.  Did Rolleston argue ably?  Rolleston argued against Archibald Cox, who went on to fame in the Watergate scandals.  This appears to have been Rolleston’s only appearance before the Supreme Court; it was Cox’s ninth appearance (he argued 20 cases before the Court in his career, several well known and notable ones).

Heart of Atlanta vs. United States was argued on October 5, 1964.  The opinion was issued on December 14, 1964, a 9-0 decision against Rolleston and segregation authored by Justice Tom C. Clark (one of Dallas’s earliest Eagle Scouts).

This was a fight Mr. Rolleston picked.  He was not cited nor indicted for violation of the Civil Rights Act, but instead asked for an injunction to prevent the law’s enforcement; according to the published decision,

Appellant, the owner of a large motel in Atlanta, Georgia, which restricts its clientele to white persons, three-fourths of whom are transient interstate travelers, sued for declaratory relief and to enjoin enforcement of the Civil Rights Act of 1964, contending that the prohibition of racial discrimination in places of public accommodation affecting commerce exceeded Congress’ powers under the Commerce Clause and violated other parts of the Constitution. A three-judge District Court upheld the constitutionality of Title II, §§ 201(a), (b)(1) and (c)(1), the provisions attacked, and, on appellees’ counterclaim, permanently enjoined appellant from refusing to accommodate Negro guests for racial reasons.

Oyez summarizes the case question:

Facts of the Case 

Title II of the Civil Rights Act of 1964 forbade racial discrimination by places of public accommodation if their operations affected commerce. The Heart of Atlanta Motel in Atlanta, Georgia, refused to accept Black Americans and was charged with violating Title II.

Question 

Did Congress, in passing Title II of the 1964 Civil Rights Act, exceed its Commerce Clause powers by depriving motels, such as the Heart of Atlanta, of the right to choose their own customers?

The decision turned on the commerce clause, and the reach of Congressional power to regulate interstate commerce.

Decision: 9 votes for U.S., 0 vote(s) against
Legal provision: Civil Rights Act of 1964, Title II

The Court held that the Commerce Clause allowed Congress to regulate local incidents of commerce, and that the Civil Right Act of 1964 passed constitutional muster. The Court noted that the applicability of Title II was “carefully limited to enterprises having a direct and substantial relation to the interstate flow of goods and people. . .” The Court thus concluded that places of public accommodation had no “right” to select guests as they saw fit, free from governmental regulation.

Good decision.

Heart of Atlanta Motel is gone.  The site is occupied by the Hilton Atlanta, today.


“It Takes Balls To Execute An Innocent Man”

August 4, 2011

Occasionally I stumble into a discussion of whether anywhere in the U.S. a government may have executed an innocent person.  Generally I note the horrible Texas case in which Texas fought for years for the point that a convicted murderer whose three allowed appeals had been exhausted should not be allowed to reopen his case simply because new evidence of his innocence had emerged.  In Herrera v. Collins (506 US 390, 1993), Texas won the right to not allow evidence of innocence to get a review of the case, and the man was executed.

Ladies and gentlemen I ask you:  Why would a state fight for the right to execute an innocent man, to the Supreme Court, if it did not intend to use that right?

The question rises more frequently these days as Texas Gov. Rick Perry steams toward announcing he will run for the presidency.

I point out that Herrera came down nearly eight years before Perry stumbled into the governor’s chair, his having been standing outside the door as Lieutenant Governor when George W. Bush persuaded the Supreme Court — most of the same justices — to stop both the popular vote and change the electoral vote to give him the presidency.  So we can’t blame that one on Perry.

But we can blame the execution of Todd Willingham on Rick Perry, even understanding that he was relying on what he assumed to be good evidence in his naturally uncurious waltz of destruction across Texas.   Perry could claim he got bad advice.  Though Texas’s governer really has little more than ceremonial power and some appointments, for someone like Perry it is a big job he can barely handle.  People would cut him slack on letting an innocent man die, convicted of a capital crime that as the evidence showed at the time probably did not occur, if he’d just confess it.

Instead, Perry engaged in a four-year campaign to cover up the affair — a cover up that is so far successful.

Jonathan Chait blogging at New Republic cites Politico and The New Yorker on the way to painting all Texans as morally bankrupt for allowing the coverup to go on — justifiably, I think.  While the newspapers cover the story, outrage does not rise from the drought-stricken populace.  New Republic’s blog explained the cover-up, and Texas’s blase attitude:

Alexander Burns and Maggie Haberman have a story for Politico about Rick Perry’s limitations as a general election candidate. It’s a really excellent piece on its own terms, but at the same time, it’s a bit of a parody of a Politico story in that it takes a vital moral question, drains it of all its moral significance, and presents it in purely electoral terms. The thesis of the piece is that Perry appeals to very conservative white southerners, but not to anybody else, making him a questionable choice to head the Republican ticket. The piece bears out that thesis pretty well. In the middle it includes a glancing reference to one episode of Perry’s gubernatorial tenure:

Perry would also have to answer for parts of his record that have either never been fully scrutinized in Texas, or that might be far more problematic before a national audience.

Veterans of Sen. Kay Bailey Hutchison’s unsuccessful 2010 primary challenge to Perry recalled being stunned at the way attacks bounced off the governor in a strongly conservative state gripped by tea party fever. Multiple former Hutchison advisers recalled asking a focus group about the charge that Perry may have presided over the execution of an innocent man – Cameron Todd Willingham – and got this response from a primary voter: “It takes balls to execute an innocent man.”

The Willingham case is just one episode in Perry’s gubernatorial tenure that could be revived against him in the very different context of a national race, potentially compromising him in a general election.

If you’re not familiar with this episode, David Grann wrote about in for the New Yorker in 2009 in what may be the single greatest piece of journalism I have ever read in my life. (I am biased, as David is a friend and former colleague.) The upshot is that Perry is essentially an accessory to murder. He executed an innocent man, displaying zero interest in the man’s innocence. When a commission subsequently investigated the episode, Perry fired its members.

I’m a Texan, and I’m appalled.  Dear Reader, what can a Texan do?  Please advise.

Surely the rest of America would be concerned and shocked, no?  We can excuse goofs in the histories of our presidential candidates.  Especially since Nixon, we should be doubly wary of those who work hard to cover up their errors, rather than learn from them.

By the way, in the latest action, the office of the Texas Attorney General issued a report on the duties of the commission established to investigate Texas justice to make it more fair — the commission whose members Perry fired when they got close to the Willingham case.  The report says that that Willingham case is water under the bridge, that the commission may not investigatet cases that predate the commission’s creation.

It’s a gross miscarriage of justice, and an attack on the democratic form of government which relies very much on continuous improvement of governmental processes, especially the due processes of criminal justice.


Quote of the moment: 1971, U.S. Court of Appeals for the District of Columbia orders a review of the safety of DDT

November 23, 2010

Excerpted from ENVIRONMENTAL DEFENSE FUND, INCORPORATED et al., Petitioners, v. William D. RUCKELSHAUS, Administrator of the Environmental Protection Agency & Environmental Protection Agency, Respondents, Izaak Walton League of America, Montrose Chemical Corporation of California, State of New York, Intervenors, 439 F.2d 584 (1971); Chief Judge David L. Bazelon wrote the decision.

This is a petition for review of an order of the Secretary of Agriculture,1 refusing to suspend the federal registration of the pesticide DDT or to commence the formal administrative procedures that could terminate that registration.

Judge David L. Bazelon, Chief Judge, U.S. Court of Appeals, District of Columbia Circuit

Born in Wisconsin, David L. Bazelon grew up in Chicago and practiced law there. In 1949, President Truman named him to the United States Court of Appeals for the District of Columbia Circuit, often described as the country's most influential court, next to the Supreme Court. At 40, he was the youngest judge ever appointed to that court. From 1962-1978 he served as chief judge, retiring in 1986 as a senior judge.

*      *      *      *      *

We conclude that the order was based on an incorrect interpretation of the controlling statute, and accordingly remand the case for further proceedings.  In this case the Secretary has made a number of findings with respect to DDT. On the basis of the available scientific evidence he has concluded that (1) DDT in large doses has produced cancer in test animals and various injuries in man, but in small doses its effect on man is unknown; (2) DDT is toxic to certain birds, bees, and fish, but there is no evidence of harm to the vast majority of species of nontarget organisms; (3) DDT has important beneficial uses in connection with disease control and protection of various crops. These and other findings led the Secretary to conclude ‘that the use of DDT should continue to be reduced in an orderly, practicable manner which will not deprive mankind of uses which are essential to the public health and welfare. To this end there should be continuation of the comprehensive study of essentiality of particular uses and evaluations of potential substitutes.’38

There is no reason, however, for that study to be conducted outside the procedures provided by statute. The Secretary may, of course, conduct a reasonable preliminary investigation before taking action under the statute. Indeed, the statute expressly authorizes him to consult a scientific advisory committee, apart from the committee that may be appointed after the issuance of a cancellation notice.39 But when, as in this case, he reaches the conclusion that there is a substantial question about the safety of a registered item, he is obliged to initiate the statutory procedure that results in referring the matter first to a scientific advisory committee and then to a public hearing. We recognize, of course, that one important function of that procedure is to afford the registrant an opportunity to challenge the initial decision of the Secretary. But the hearing, in particular, serves other functions as well. Public hearings bring the public into the decision-making process, and create a record that facilitates judicial review.40 If hearings are held only after the Secretary is convinced beyond a doubt that cancellation is necessary, then they will be held too seldom and too late in the process to serve either of those functions effectively.

The Secretary’s statement in this case makes it plain that he found a substantial question concerning the safety of DDT, which in his view warranted further study. Since we have concluded that that is the standard for the issuance of cancellation notices under the FIFRA, the case must be remanded to the Secretary with instructions to issue notices with respect to the remaining uses of DDT, and thereby commence the administrative process.

*        *        *        *        *

We stand on the threshold of a new era in the history of the long and fruitful collaboration of administrative agencies and reviewing courts. For many years, courts have treated administrative policy decisions with great deference, confining judicial attention primarily to matters of procedure.48 On matters of substance, the courts regularly upheld agency action, with a nod in the direction of the ‘substantial evidence’ test,49 and a bow to the mysteries of administrative expertise.50 Courts occasionally asserted, but less often exercised, the power to set aside agency action on the ground that an impermissible factor had entered into the decision, or a crucial factor had not been considered. Gradually, however, that power has come into more frequent use, and with it, the requirement that administrators articulate the factors on which they base their decisions.51

Strict adherence to that requirement is especially important now that the character of administrative litigation is changing. As a result of expanding doctrines of standing and reviewability,52 and new statutory causes of action,53 courts are increasingly asked to review administrative action that touches on fundamental personal interests in life, health, and liberty. These interests have always had a special claim to judicial protection, in comparison with the economic interests at stake in a ratemaking or licensing proceeding.

To protect these interests from administrative arbitrariness, it is necessary, but not sufficient, to insist on strict judicial scrutiny of administrative action. For judicial review alone can correct only the most egregious abuses. Judicial review must operate to ensure that the administrative process itself will confine and control the exercise of discretion.54 Courts should require administrative officers to articulate the standards and principles that govern their discretionary decisions in as much detail as possible.55 Rules and regulations should be freely formulated by administrators, and revised when necessary.56 Discretionary decisions should more often be supported with findings of fact and reasoned opinions.57 When administrators provide a framework for principled decision-making, the result will be to diminish the importance of judicial review by enhancing the integrity of the administrative process, and to improve the quality of judicial review in those cases where judicial review is sought.

Remanded for further proceedings consistent with this opinion.

(President Nixon’s Secretary of Agriculture Clifford M. Hardin reviewed DDT regulations and decided no further action was required — since 1958, USDA had been reducing and eliminating DDT from use on USDA lands, as was the Department of the Interior.  Environmental Defense Fund sued, arguing more action should have been required.  In a complex decision, the U.S. Court of Appeals for the District of Columbia ordered more study of the issue.  By the time of the decision, the Environmental Protection Agency (EPA) had been established, and EPA Director William D. Ruckelshaus took Hardin’s place as defendant, with EPA assuming USDA’s position as defendant agency.  EPA’s review resulted in a ban on use of DDT on crops in the U.S.)

Some historians and many critics of EPA’s decision to ban DDT from agricultural use in the U.S. fail to acknowledge the importance of this ruling.  Judge Bazelon said that great caution alone is not sufficient on the part of administrators, and he ordered that the evidence against DDT be placed on the public record for public scrutiny.  “Public scrutiny” in this case would mean analysis by scientists, pesticide manufacturers, farming and farm support organizations, health workers, policy makers, and reporters.

On one hand, this decision tends to favor DDT advocates.  Judge Bazelon said the administrator in charge of carrying out FIFRA, the Federal Insecticide, Fungicide and Rodenticide Act, must give advocates of DDT the basis for the ruling: “On the basis of the available scientific evidence he has concluded that (1) DDT in large doses has produced cancer in test animals and various injuries in man, but in small doses its effect on man is unknown; (2) DDT is toxic to certain birds, bees, and fish, but there is no evidence of harm to the vast majority of species of nontarget organisms; (3) DDT has important beneficial uses in connection with disease control and protection of various crops.”

On the other hand, Bazelon’s order means that the significant harms of DDT must  be spelled out in public — so that the administrator’s ruling can be contested if it does not do what FIFRA requires.  In other places in the decision, Judge Bazelon notes that Congress had required, through FIFRA, that a pesticide determined to be uncontrollably dangerous must be taken off the market, under the justification that it was “mislabeled.”  Lower courts had already made that determination on DDT.  Bazelon’s order set the stage to require the administrator to ban DDT as a matter of law — the administrator being  the Secretary of Agriculture originally, or the Director of EPA under the reorganization of the government that created EPA .

Critics of William Ruckelshaus’s decision to ban DDT miss this point of the law.  Under the findings of the nearly year-long hearing in EPA’s administrative law courts, DDT was found to be an uncontrollable poison in the wild.  FIFRA required such a pesticide to have its registration cancelled, with very little wiggle room to make a case for any continued use of the stuff.  Ruckelshaus’s action stopped the immediate shutdown of DDT manufacturing in the U.S.   This proved to be a mixed benefit decision.  While the U.S. benefited financially from export of DDT, that the U.S. exported a chemical banned for most uses inside the U.S. proved to be a sore point in foreign relations with other nations; also most of the manufacturing sites were highly contaminated, so much so that the manufacturers declared bankruptcy rather than stick around to clean them up under the rules of the Superfund which took effect in 1984.  Taxpayer dollars now pay for massive cleanup operations of DDT manufacturing sites in California, Michigan, and Alabama, and other places.


Conviction in Massachusetts church arson — hate crimes laws at work

November 4, 2010

Did you see this press release from the U.S. Department of Justice?  Prosecutors got a conviction in a 2008 arson of a church in Massachusetts.

Here’s the press release:

For Immediate Release
November 1, 2010

U.S. Department of Justice
Office of Public Affairs

Massachusetts Man Sentenced to Federal Prison for Burning African-American Church
WASHINGTON—Benjamin Haskell was sentenced by U.S. District Judge Michael A. Ponsor in Springfield, Massachusetts to nine years in prison and three years of supervised release for his role in the 2008 burning of the Macedonia Church of God in Christ, a predominately African-American Church, on the morning after President Barack Obama was elected as the first African-American president of the United States. In addition, Haskell will pay more than $1.7 million in restitution, including $123,570.25 to the Macedonia Church.

On June 16, 2010, Haskell, 24, of Springfield, pled guilty to conspiring to injure, oppress, threaten, and intimidate the mostly African-American parishioners of the Macedonia Church in the free exercise of the right to hold and use their new church building, which was under construction, and to damaging the parishioners’ new church building through arson and obstructing their free exercise of religion because of their race, color, and ethnic characteristics.

At the earlier plea hearing, a prosecutor told the court that had the case proceeded to trial, the government’s evidence would have proven that in the early morning hours of Nov. 5, 2008, within hours of President Barack Obama being elected, Haskell and his co-conspirators agreed to burn down, and did burn down, the Macedonia Church’s newly constructed building where religious services were to be held. The building was 75 percent completed at the time of the fire, which destroyed nearly the entire structure, leaving only the metal superstructure and a small portion of the front corner intact. Investigators determined that the fire was caused by arsonists who poured and ignited gasoline on the interior and exterior of the building.

Haskell confessed to the crime and admitted that prior to the presidential election, he and his co-conspirators used racial slurs against African-Americans and expressed anger at the possible election of Barack Obama as the first African-American president. Haskell admitted that after Obama was declared the winner of the election, he and his co-conspirators walked through the woods behind the Macedonia Church to scout out burning it down. Then, in the early morning hours of Nov. 5, 2008, Haskell and his co-conspirators went back to the church, poured gasoline inside and outside of the church, and ignited the gasoline.

“The freedom to practice the religion that we choose without discrimination or hateful acts is among our nation’s most cherished rights,” said Thomas E. Perez, Assistant Attorney General in charge of the Justice Department’s Civil Rights Division. “As seen here today, the Department will prosecute anyone who violates that right to the fullest extent of the law.”

“The burning of the Macedonia Church because of racial hatred and intolerance was a vicious attack on one of our most cherished freedoms—to worship in the religion of our choice safely and without fear of discrimination,” said U.S. Attorney for the District of Massachusetts Carmen Ortiz. “The successful investigation, prosecution, and punishment of those who committed this hateful act is a clear statement that law enforcement will do all in its power to protect our citizens’ civil rights.”

“While the Bureau of Alcohol, Tobacco and Firearms (ATF) is charged with investigating some of the most violent crimes, I consider the arson to be one of the most serious and dangerous offenses. Not only was this case about the burning of a house of worship, it cut to the very heart of our most valued rights, that of religious freedom. I want to acknowledge all of our partners who assisted in bringing the individuals responsible for this fire to justice,” said ATF Special Agent in Charge Guy Thomas.

“Today’s sentencing represents just one more step toward closure and healing, not only for the victims of this hate crime, but for the Springfield community as a whole. The FBI, along with its federal, state, and local law enforcement partners, remains committed to protecting each and every citizen’s civil rights, and will aggressively investigate any violation of those rights, bringing the perpetrators to justice,” said Richard DesLauriers, Special Agent in Charge of the FBI.

The case was prosecuted by Assistant U.S. Attorneys Paul H. Smyth and Kevin O’Regan of the U.S. Attorney’s Springfield Office, and Nicole Lee Ndumele, Trial Attorney in the Department of Justice’s Civil Rights Division.


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