Sneaking Suspicions
 
Archives-- February 22-28, 2004


This page includes posts from February 22-28, 2004 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

February 28, 2004
Hard to appeal what was never decided in the first place

Sometimes a case looks awfully deserving of consideration, but you just can’t justify keeping it in court. That’s the impression I had after reading a D.C. Circuit decision issued earlier this week.

Several years ago BellSouth decided to install a cell phone tower in the general vicinity of Georgetown, South Carolina.

For those who haven’t been there, this is a pretty place. An inlet leads out to the Atlantic Ocean, and it’s a major sportfishing center. In addition, for thousands of golfers Georgetown marks the southern end of Myrtle Beach, with courses such as Pawley’s Plantation and Caledonia Golf & Fish Club nearby.

It’s also the home of the Hobcaw Barony, a 17,500 acre nature and historic preserve now on the National Register of Historic Places. It was once owned by Bernard Baruch, the 20th Century financier and friend to Presidents. The huge property is also home to research facilities operated by the University of South Carolina and Clemson.

With all these attractions, it’s perfectly understandable why BellSouth would want to make sure that cell phone facilities are in place to handle all the business. What’s not so obvious is why the company arranged to use a portion of the Barony property for the placement of a 185-foot tall tower.

Under Section 106 of the National Historic Preservation Act, putting this tower on Register properties is supposed to trigger an analysis of whether the historic resource is affected in any significant way. The State Historic Preservation Office accepted a letter from BellSouth’s consultants that mentioned the location, but the SHPO concluded that the tower placement would have no effect on the Barony property. Therefore, no one prepared an environmental assessment, and the tower was erected.

A local resident named James Tennant noticed the tower and its location (it’s hard to miss seeing a 185-foot tower in the Low Country). He began a letter-writing campaign, with correspondence to BellSouth and the federal Advisory Council on Historic Preservation complaining about the apparent failure to follow Section 106. He sent copies of his letters to the FCC. The ACHP asked FCC for an explanation, and FCC referred back to the prior SHPO letter.

On the other hand, Tennant never sent any direct correspondence to the FCC asking for any intervention or review of the Section 106 issue. Instead, in February 2002 he filed suit in the D.C. Circuit, demanding a writ of mandamus to force FCC to follow the Preservation Act’s requirements, to confirm that the tower adversely impacted the Barony, an injunction to block any more towers from the site, and related relief.

Last summer, the South Carolina Attorney General’s Office advised the parties that the SHPO tower letter was incorrect. On its own motion, in September 2003 the FCC began a Section 106 review about the current tower and a proposed second tower in the same vicinity.

Under these circumstances, the Circuit Court couldn’t help but notice that there really wasn’t anything appealing about Tennant’s lawsuit:

Because Tennant never initiated a proceeding with the FCC, we do not have authority under the All Writs Act to issue a writ of mandamus ‘‘in aid of’’ prospective jurisdiction to review action the Commission might take. It is one thing to say that we have such authority when…a case is ‘‘ ‘within [our] appellate jurisdiction although no appeal has been perfected.’ ’’ [citations omitted]. It is quite another to claim such power solely on the basis that events might lead to a filing before an agency or lower court, which might lead to an appeal to this court. Once there has been a proceeding of some kind instituted before an agency or court that might lead to an appeal, it makes sense to speak of the matter as being ‘‘within [our] appellate jurisdiction’’ — however prospective or potential that jurisdiction might be. To dispense with even that preliminary requirement would effectively grant us jurisdiction to consider extraordinary writs in any case, because it is easy enough to spin out ‘‘for want of a nail’’ scenarios from any set of facts that could eventually lead to this court. It is not too much to ask that parties seeking mandamus relief take at least the first preliminary step that might lead to appellate jurisdiction in this court in the future [note omitted].

Tennant had no better grounds to support the other relief he sought, and so the Circuit Court dismissed the petition.

Meanwhile, it looks like the original mistake will be corrected. Late last fall the FCC held a public hearing in Georgetown on the issue.

There are no guarantees that this particular tower will be taken down as a result. Nonetheless, at least this time the Preservation Act’s requirement to think about the implications of putting this kind of structure in that kind of property will be followed.

February 26, 2004
Yet another truly remarkably stupid thing to say

Once again a member of the Federal legislative branch managed to align herself with the kind of folks who enjoy hanging out at the shallow end of the gene pool, thus making her a true representative of at least some people.

This time it was U.S. Rep. Corrine Brown of Jacksonville, Florida. Among other racist remarks she used a particularly fascinating choice of phrase in taking off after the State Department’s top person for Latin America:

[Roger] Noriega later told Brown: "As a Mexican-American, I deeply resent being called a racist and branded a white man," according to three participants.

Brown then told him "you all look alike to me," the participants said.

Haven’t heard that one used in polite company in years.

Since I previously noted the similarly (Trott) boneheaded (Moran) remarks (H.Clinton) by other legislators, I felt compelled to note this one after learning about it from Glenn Reynolds.

Nonetheless, I doubt that there will be any outcry in the major media outlets about this one.

Maybe I'm becoming a tad cynical.

February 25, 2004
Alan Greenspan—not exactly Pollyanna, is he?

I respect Alan Greenspan.

He doesn’t seem to care if any particular year is divisible by four.

I like that in a guy whose job it is to tell uncomfortable truths to elected officials.

The old man had some fun in a Congressional hearing today, passing along some predictions about Social Security that shouldn’t have surprised anyone:

Federal Reserve Chairman Alan Greenspan, stepping into the politically charged debate over Social Security, said Wednesday the country can't afford the retirement benefits promised to baby boomers and urged Congress to trim them.

He said that unless Congress acts, soaring budget deficits from out-of-control entitlement programs could lead to a "very debilitating" rise in interest rates in coming years.

Greenspan repeated some old suggestions to alleviate the problem, including stretching the full benefits retirement age and adjusting the CPI device used to establish annual increases.

Not at all surprisingly, neither Democrats nor Republicans wanted to hear this. As reported by AP Economics writer Martin Crutsinger, Greenspan’s remarks led to the usual expressions of shock and dismay from Democrats such as Kerry, Edwards, and Kucinich. In addition, Republican leaders such as Congressman Clay Shaw, who heads a House Ways and Means committee on Social Security, rushed to reassure their constituents:

"My message to seniors and those nearing retirement: You will receive nothing less than 100 percent of what you've been promised. Your benefits are safe and secure," Shaw said.

Geez.

Pandering is such an ugly thing, don’t you think?

February 24, 2004
Wonking around

Here are links to two pieces I saw today, both of which appeal to my inner policy wonk.

The Census Bureau issued These Old Houses: 2001, a new study on American housing. It compared the still-existing housing stock built before 1920 to the new houses built since 1990.  

The Bureau’s press release headline would have earned a Claude award if it had been used by a for-profit media entity:

Old Houses Cost Less But Tend to Lack Amenities, Census Bureau Says

Well, sure, but only by today’s standards. Most homes built before 1920 didn’t have a garage because most folks didn’t have a car. Most homes built before 1920 didn’t have central air conditioning because residential cooling systems were extremely rare at the time. Besides, most heating systems then in place didn’t use warm air ducts that could be used to convey cooler air in the summer.

On the other hand, compared to the late 1800s and early 1900s, many homes built just after World War I were considered to be modern marvels of the new age. For example, new immigrants and the growing middle class justifiably considered the Sears Craftsman bungalows in the new suburbs to be a major improvement over their former inner-city housing alternatives.

In addition, homes built before 1920 were likely to be only recently electrified. My grandfather wired up many of these homes in Delaware with their first electric lights, as a member of the new electrician trade at the time. Meanwhile, indoor plumbing was still considered a luxury for a significant number of American citizens.

The Census report is about 22 pages long, accompanied by a lengthy table-filled appendix. For those interested in American domestic history, it’s a very handy guide to the changes in what were considered basic housing elements over the last eighty years.

I also really enjoyed reading Marc Fisher’s column in the WaPo Metro section about a smart growth mixed-use development project in Bethesda, Maryland and the continuing fight by NIMBYs against it.

Fisher is clearly on the side of those who support the project:

The planning board has approved this project five times already. Still, opponents fight on.

Amazingly, the Federal Realty project that so offends them is more than 300 feet from the nearest house and is surrounded by commercial development.

John Freeman, a supporter of the project who lives among its most vociferous opponents, told the board that the NIMBYs could be assuaged only if the county promised them a gated entrance to their community, private rush-hour express lanes on Arlington Road and guaranteed table reservations at local restaurants on weekend evenings.

I’m sure there’s just a little bit of an overstatement there, but not much.

The column’s well worth reading, even for those who don’t know anything about Bethesda. The fundamental issues raised by this controversy go well beyond the particulars of this one development proposal.

February 23, 2004
A fake crime in interstate commerce remains a crime nonetheless

You might think no one needed to be reminded that there is no honor among thieves.

Rafael Rodriguez must have thought he would be the one doing the reminding. Instead, he turned out to be the one that needed a lesson.

Along with two other fellow miscreants, Rodriguez met up with a man who suggested that they work together to separate a group of drug traffickers from their ill-gotten gains.

The men agreed that they would dress up as police officers and conduct a “raid” on a stash house. While some of the fake cops would force the traffickers to the floor at gunpoint, the others that were in on the scam would confiscate about 25 kilograms of cocaine.

Rodriguez and his buddies agreed to meet again with their fellow conspirators. This time, they came to the meeting with LAPD t-shirts, guard badges, and those standard issue windbreakers so familiar to those of us who watch the police video shows.

Unfortunately for Rodriguez, the joke was on him.

The guy who told them all about the scheme was in fact an undercover ATF agent. Rodriguez and his friends were the “victims” of an official sting operation.

Rodriguez eventually pled guilty to the Federal offense of conspiracy to interfere with commerce. After being sentenced to over 5 years in prison, Rodriguez appealed to the Ninth Circuit.

Among other complaints, he suggested that his alleged crime had no real connection to interstate commerce. After all, it was a fake crime against fake drug traffickers. With no real interstate commerce involved, therefore, he couldn’t possibly have been guilty of a real Federal crime.

The unanimous appellate panel disagreed:

Because the trafficking of narcotics is a federally-regulated activity implicating interstate commerce, we conclude that federal jurisdiction exists to apply the Hobbs Act to conspiracies involving the theft of cocaine from narcotics traffickers.

***

[T]he non-existent status of the target drug traffickers is inapposite. Impossibility is not a defense to the conspiracy charge….this court has previously upheld convictions stemming from law enforcement sting operations, finding that the jurisdictional nexus is not frustrated by the impossibility of the actual robbery. [citations omitted].

In affirming the conviction and sentence, the Circuit Court’s concluding paragraph also reminded Rodriguez of some other basic truths:

In the wonderland of drug enforcement stings, though only the grin may be seen, the cat still remains. Federal jurisdiction is not lost merely because Rodriguez’s intentions of robbing a narcotics trafficker could not have come true. Even in the dreamlike world of federal sting operations, when you drink from the bottle marked poison, it will disagree with you sooner or later.

Yup.


   

Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969
USA

fschranck-at-
sneakingsuspicions.com


Home Page
Table of Essays
Table of Essays 2002
Links to the Weekly Archives



Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.

That fact may become obvious later on, but it needs to be said here anyway.


© Frederick H. Schranck 2002-2004