Sneaking Suspicions
 
Archives-- June 27-July 10, 2004


This page includes posts from June 27-July 10, 2004 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

July 9, 2004
A simple explanation

On the first day of older daughter’s freshman year at college, she met another young lady in her dorm. They hit it off immediately, especially when the conversation turned to favorite movies.  

A chance use of a snippet of dialogue from So I Married An Axe Murderer (“We have a piper down!”) caused a sudden flood of additional quotations from that Mike Myers classic. These bits were quickly followed by a highly animated, choice selection of quotes from similarly silly comedies, such as Tommy Boy, Wayne’s World I and II, Dumb & Dumber, and Ferris Bueller’s Day Off.

The two girls have been good buddies ever since, and the young lady was among the visitors to our house this week. 

Her visit and the memory of that first contact reminded me that we should buy the DVD version of Axe Murderer, so I clicked over to Amazon.com.

At the page offering this movie for sale I immediately learned how much our family’s love for certain comedies is shared by others. Take a look at this direct quote:

Customers who bought this DVD also bought:

There’s a straightforward explanation for this coincidence, of course—great minds think alike.

July 8, 2004
Nice while it lasts

For well over a century Delaware has used some clever methods to export a significant part of its revenue sources. 

By that I mean the state’s fee and tax structure is designed to have folks from other states give the First State a little something, depending on a series of relatively tiny individual transactions to generate a large, pleasant cash flow to my little state’s coffers.

Examples are all over the place. They range from the I-95 toll barriers at the Maryland line (the ones that The New Republic’s Jon Chait loves so much), to the franchise taxes paid by the thousands of corporations who appreciate the Delaware corporate laws and courts.

For a state with a $2.6 billion operating budget, these cash sources aren’t chicken feed. They add up to at least half of Delaware’s total revenue.

For example, annual toll revenues from I-95 total about 70 million dollars. Because of the location of the toll barrier, not a lot of that cash comes from us locals. The franchise tax brings in about a half-billion, most of which doesn’t come from corporations with an active business operation in Delaware. Abandoned property that escheats to Delaware produces a startling $245 million or so, largely from uncollected stock dividends and similar sources.

Then, of course, there’s the money from gambling. The slot machines (video lottery terminals are what they’re called here, in a nod toward constitutional limitations on what kind of sins will be permitted here), and the state lotteries are predicted to produce over $230 million in state revenue.

Our neighbors to the north and west certainly have noticed, and after much fussing and feuding among themselves they are making determined efforts to keep some of this cash at home. The new Pennsylvania law permitting 61,000 slot machines in the Keystone State is the most recent attempt, and the folks pushing for the law made no bones about their intentions (excuse the pun):

Proponents said the law would allow the state to recapture much of the money Pennsylvanians pour into slot machines in neighboring states and help revive the state's horse racing industry.

There’s no denying the logic behind that argument. If gamblers in the Philadelphia area only have to travel a few miles to pull the levers and lose their Susan Bs, they’re far less likely to travel forty miles to lose their money here.

A News-Journal article recently reported that Delaware budget folks estimated that if both Pennsylvania and Maryland enact gambling laws, this revenue source would be cut by about half. Even if Maryland fails to follow Pennsylvania’s example, it’s still a potentially large hit.

Naturally, the news that a significant source of export revenue might soon shrink managed to enliven the recent debates in the General Assembly, although no solution was adopted to blunt the impact.

The details of the Pennsylvania law may just postpone Delaware’s day of reckoning, however, especially this part:

A new gambling commission would issue slots licenses to racetracks, resorts and other sites for fees ranging up to $50 million apiece.

The more that commission sets these license fees at the high end, the more likely that Delaware’s revenue losses will be diminished. A $50 million tab can be quite the barrier to entry into a marketplace, after all.

Nonetheless, I expect the Minner Administration will continue to monitor the events just north of here and come back to the new General Assembly next January with an idea on how to adjust for the new reality. Legislators this year weren’t keen on the concept of setting up a reserve account out of abandoned property proceeds, but that doesn’t mean they won’t be amenable to some other concepts.

I think they should start considering half of the state’s current gambling revenue as one-time money. Under the traditional Delaware approach, any such cash source is usually dedicated to capital project needs. This helps reduce the risk of a serious disruption in the money set aside for the general operating budget, by tying recurring needs to recurring revenues.

The money from slots players from our neighboring states is nice while it lasts, but it’s well past time to keep counting on it.

July 7, 2004
A chance to correct a mistake

It’s been my experience that most government agency employees instinctively prefer to ask for permission rather than ask for forgiveness. 

This attitude usually translates into a fairly conscientious adherence to procedure, in the hope that nothing too controversial will happen that challenges the normal way of doing the people’s business.

On the other hand, sometimes an agency will exhibit a certain, shall we say, playful attitude toward following its own rules. When that happens and someone sues the government as a result, most folks would be happy to see the agency quickly confess error and seek to return to the regulatory straight and narrow. 

But not always, as the Federal Highway Administration recently learned. 

Several years ago the Tennessee Transportation Department (TDOT) was keen on extending the Pellissippi Parkway near Knoxville. The proposed 4.5 mile limited access highway is intended to alleviate congestion near Maryville and Alcoa, and has been high on TDOT’s list of things to do for a long time. It would use about 155 acres of land on new right-of-way acquired for the purpose. 

Like all Federally-assisted highway projects, this one is subject to the pre-construction analysis of potential alternatives, environmental risks, and other complex studies required by the National Environmental Policy Act (NEPA). Under the usual rules, this kind of project would probably require a full-blown Environmental Impact Statement (EIS). Nonetheless, for reasons not fully explained in the Sixth Circuit decision issued today, the FHWA instead issued a Finding of No Significant Impact (the fabled FONSI, among transportation geeks). Furthermore, the FONSI didn’t address why this project didn’t require an EIS. 

A local group that opposed the Parkway idea called them on it, and sued TDOT and the FHWA in District Court to block the project. 

The FHWA quickly saw the error of its ways, and told TDOT it was going to withdraw its prior FONSI ruling. It also informed the District Court, which by then had enjoined the state and the Feds from doing any more work on the project until they could show they were in compliance with the NEPA rules. Even so, the Court refused the FHWA’s request to remand the matter back to the agency so that it could do this time what it should have done the first time. 

On appeal, the Sixth Circuit reversed:

The district court in this case articulated no tenable reason for continuing injunctive relief against the FHWA. In the absence of any such reason, it is an abuse of discretion to prevent an agency from acting to cure the very legal defects asserted by plaintiffs challenging federal action. This court has recognized the inherent authority of an agency to reconsider a prior decision [citations omitted]…. Accordingly, when an agency seeks a remand to take further action consistent with correct legal standards, courts should permit such a remand in the absence of apparent or clearly articulated countervailing reasons. Otherwise judicial review is turned into a game in which an agency is “punished” for procedural omissions by being forced to defend them well after the agency has decided to reconsider.

The plaintiffs had no good reason to try to block FHWA from doing the right thing, either:

Indeed, the only apparent advantage to [the plaintiffs] in preventing the remand is the delay involved in forcing the agency to litigate on a concededly insufficient record. Instead, undelayed agency reconsideration of the potential environmental impacts of a project furthers the purpose of NEPA, which seeks to ensure that federal agencies take a “hard look” at the environmental consequences of significant federal actions. Thus, the public interest as well as the purpose of NEPA would permit an agency to reconsider a FONSI.

The appellate panel rightly understood that NEPA compliance is procedural, and should not be used as a substantive device to block projects that some might consider undesirable. The FHWA rightly understood that for some reason it hadn’t quite followed NEPA’s rules, and deserved a chance to go back and do it right.

Works for me.

July 4, 2004
Ask The Tax Man

While checking web site statistics this morning I came across an unexpected referrer. Someone found this site by typing the following query into one of the search engines:

does pga golfers pay state income tax in each state

It makes sense that he or she would be given a referral here with that kind of question, since I’ve occasionally written about the income tax and the PGA--but not in the same post.

Until now.

This question inspired a new occasional feature we'll be presenting at Sneaking Suspicions—Ask The Tax Man.

And just to start us off, here’s the quick answer to this reader’s question: Yes. PGA golfers pay income tax in each state.

In fact, you might be surprised to learn how many people don’t know that any paid sports professional who appears on network television is considered to have been engaged in his or her chosen profession in each state in which their activity is televised.

Say, for example, Tiger Woods picks up a six-figure check for coming in second or third in the PGA Tour’s Players Championship, held at the TPC course near Jacksonville, Florida. That part of his income is reported to each state. It's apportioned to each of the 50 jurisdictions according to the Nielsen ratings data for the final round, showing the percentage of viewers in each state during that tournament.

A Memorandum of Agreement signed by the chief revenue officers for each state allows them to share the information about each player’s tournament history and earnings, so that much of the record-keeping burden is on the states. Accepting this responsibility cuts down on the complaining by the golf pros, who it's been said will bitch about anything at the drop of a hat.

On the other hand, the non-tournament income from PGA Tour golfers’ non activities, such as endorsements for cars and golf equipment, is considered to be earned in the golfer’s home state. That’s one big reason why Tiger and many of his competitors live in Florida and other states that don’t have an income tax

I’m really glad I could help this person with their question.

This new service also deserves its own slogan, perhaps something like this:

Ask the Tax Man—where the advice is quick, easy, and every bit as useful as you might think, considering what you paid for it.

July 2, 2004
Update on being Number 50

The Delaware General Assembly enacted a few surprises during the waning hours of this year's legislative session.

Among other unexpected activities, these folks joined the other 49 state legislatures and enacted a law to lower the DUI blood alcohol content standard from .10 to .08.

In other words, my little state provided the most recent proof that the first shall be last.

Nonetheless, the local MADD chapter was happy:

"We're really ecstatic that they passed it," said Rosalie Walls, president of the Delaware chapter of Mothers Against Drunk Driving. "If it can save some lives, that's what we're striving for."

I could be wrong, but I tend to think that several legislators had a different goal in mind, as suggested in the lede paragraph in today's News-Journal:

Faced with the loss of nearly $2 million in federal highway money, Delaware lawmakers finally approved a bill lowering the blood-alcohol level for drunken driving from .10 to .08.

The new law was passed just in time for the holiday weekend.

So let's be careful out there, shall we?

July 1, 2004
The (three-mile) limits of state sovereignty

In the search for energy sources, tradeoffs are inevitable—even for windmills.

As noted in a prior post, energy companies are trying to locate wind farms at several spots along the East Coast, including one place not far from my home.

The folks at Cape Wind Associates in Massachusetts are a bit further along than some of their competition. They recently installed a data-collecting tower a few miles offshore on Horseshoe Shoals, in Nantucket Sound. 

It’s designed to gather information about wind speed, direction, and water currents and conditions for five years, as part of the planning for a wind farm of 130 or more turbines. The company claims these new-tech windmills will meet the electrical energy needs of a substantial portion of Cape Cod, if they can overcome a long list of hurdles.

You’d think that environmentalists would support these kinds of projects, but at least in Massachusetts, you’d be wrong. A group sued to block the construction of this data tower as part of their ongoing fight to block any such use of Nantucket Sound.

Earlier this week, however, the First Circuit turned back one of the groups’ primary claims.

The plaintiffs argued that the Commonwealth of Massachusetts retained regulatory authority over Nantucket Sound, despite the fact that the Federal Submerged Lands Act (SLA) and the Outer Continental Shelf Lands Act (OCSLA) confirmed the outer limits of state control as three miles offshore, reserving Federal authority to the Outer Shelf beyond that boundary.

The unusual geographic feature of Nantucket Sound is that it’s so wide that its center lies more than three miles from any shoreline feature of the Bay State (think doughnut hole). That's where this tower sits.

The state government didn’t agree with the plaintiffs on this issue, admitting that their jurisdiction didn’t extend to granting permits for this tower. Undaunted, the plaintiffs pressed their case, but lost in the District Court.

Among other reasons for dismissing their appeal, the Circuit Panel gave a short lesson in relative sovereignty:

In our view, the OCSLA leaves no room for states to require licenses or permits for the erection of structures on the seabed on the outer Continental Shelf. Congress retained for the federal government the exclusive power to authorize or prohibit specific uses of the seabed beyond three miles from shore. See § 1333(a)(3) ("The provisions of this section for adoption of State law as the law of the United States shall never be interpreted as a basis for claiming any interest in or jurisdiction on behalf of any State for any purpose over the seabed and subsoil of the outer Continental Shelf . . . ."). If adopted and enforced on the outer Continental Shelf, statutes like Mass. Gen. Laws chs. 91 and 132A, which require the approval of state agencies prior to construction, would effectively grant state governments a veto power over the disposition of the national seabed. That result is fundamentally inconsistent with the OCSLA. See id. § 1332(3) (declaring it to be the policy of the United States that "the outer Continental Shelf is a vital national reserve held by the Federal Government for the public, which should be made available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs" (emphasis added)).

Those fighting the windmill project aren’t done yet. A separate appeal before the First Circuit challenges the U.S. Army Corps of Engineers permit given to Cape Wind for this same tower.

Nonetheless, this decision reaffirms a basic distinction between state and Federal authority—once you’re three miles offshore, the state’s interest in what you’re doing mostly just disappears.

June 30, 2004
Win a battle, but probably lose the war

The Eleventh Circuit issued an opinion earlier this week that included a reasonable interpretation of the Wilderness Act, no doubt pleasing the plaintiffs with their victory. This also looks like the kind of win that will result in a legislative response.

Cumberland Island National Seashore is one of the larger, well-preserved barrier islands off Georgia’s Atlantic Coast. It can only be reached by boat, most often from the nearby town of St. Mary’s. 

There are several historic structures dating back to the 19th and early 2oth centuries on this spit of sand, marsh, and maritime forest. In 1982, most of the island was placed under the significant protections of the Wilderness Act, 16 U.S.C. §§ 1131-36. Among other requirements, this law places significant use restrictions on the acreage it covers.

For example, wilderness areas aren’t supposed to have any roads, but this one did. The National Park Service used the single unpaved lane primarily for maintenance access and similar island management purposes, but also began taking the occasional small groups of tourists along with NPS staff. As the interest in seeing the island increased (roughly 40,000 visitors each year), NPS switched from four-passenger vehicles to fifteen-passenger vans.

From the Service’s perspective, this wasn’t a big problem, since the total number of trips was still limited to three times a week to one site, and a monthly trip to the other location (the Service ended vehicular access to the more popular site after they made it accessible by boat, not long after this suit was filed).  A group of environmentalists weren’t pleased at these modest amenities, however, and sued.

Reversing the District Court’s decision in favor of the Park Service, the Eleventh Circuit panel applied a straightforward treatment of the law’s requirements:

The Wilderness Act defines wilderness as “undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation.” 16 U.S.C. § 1131(c)…. Another section of the Act explicitly states that, except as necessary for minimal administrative needs that require occasional vehicle use, “there shall be . . . no structure or installation within any such [wilderness] area.” 16 U.S.C. § 1133(c)….

The Wilderness Act bars the use of motor vehicles in these areas “except as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter [the Wilderness Act].” 16 U.S.C. § 1133(c). The Park Service’s decision to “administer” the Settlement using a fifteen-passenger van filled with tourists simply cannot be construed as “necessary” to meet the “minimum requirements” for administering the area “for the purpose of [the Wilderness Act].” 16 U.S.C. § 1133(c)…. 

Of course, there is nothing wrong with appreciating natural beauty from inside a passenger van, and many other categories of public land administered by the federal government appropriately offer this opportunity. It simply is not the type of “use and enjoyment” promoted by the Wilderness Act.

While ruling in favor of the environmentalists, the Circuit also showed a real appreciation for the balancing act that the Park Service attempted:

Faced with competing demands from different constituencies in both Congress and the general public, the agency attempted to find a compromise that would satisfy all interested parties and potentially stave off legislative changes to the status of the Cumberland Island wilderness area. Although this goal is laudable, the statute limits motor vehicle use and transport to what is “necessary to meet minimum requirements for the administration of the area.” The compromise on public transportation reached in this case cannot be squared with the language of the Wilderness Act.

I think that Congress might soon step in to dictate a different result.

For one thing, the remaining historic site for which vehicle access is still desired just happens to be the remnants of an area occupied by a group of freed slaves after the Civil War….” For another thing, the Service was only making this trip one time each month, not exactly a significant burden to the adjoining wilderness area.

This situation looks like a prime candidate for a short sentence or two to be added to an appropriations bill, creating an exception to the otherwise broad restrictions of the Wilderness Act.


Cumberland Island

June 29, 2004
Photoblogging

This is White Oak Creek. It runs near my house down to the northern edge of Rehoboth Bay. The opening in the marsh grass in the center of the picture will easily accept an kayaker or two.

White Oak Creek, Sussex County, DE, June 27 2004

June 28, 2004
Placard parkers

Any social system that expresses a generosity of spirit toward some will inevitably be the target of abuse by others.

Some honest members of the disabled community in Delaware were recently reminded of this unfortunate fact of life.

Until a year or so ago, state law prohibited towns and cities from requiring any handicapped driver to pay for any metered parking spaces. In beach towns like Rehoboth Beach, this was a significant benefit for the disabled, at some modest cost to the city (The Feds are not the only ones who know how to pass down an unfunded mandate, y’see).

Like many resort communities, Rehoboth depends on the summer’s meter revenue for a large portion of its total revenue. Most of the business district streets and other blocks close to the Boardwalk are metered from May through September. The free parking law was a very pleasant break for those who qualified for handicap license plates, or who were issued the handicap placards that can be transferred from car to car and hung from rear-view mirrors.

Eventually, some folks began to game the system. Somehow they gained access to a handicap placard, and repeatedly parked their vehicles in prime spots at no charge.

A Rehoboth businessman recently described to me how a placard-using local business operator took advantage of the state law (I’m paraphrasing here):

"This guy would drive into town and park his car in a metered spot in front of [his business], where he’d stand all day. Then he’d close up shop and walk over to the Blue Moon, where he’d stand and drink with his friends for a couple more hours. Then he’d walk back to his car and drive home. I don’t know what he told his doctor to get that placard, but anyone who can remain standing that long every day doesn’t seem too disabled to me.”

To be fair, the doctor might have not made a mistaken diagnosis. After all, the law requires that the person who obtained the placard be the person actually using the car, but enforcement is difficult at best. The hang-down tag could have just as easily been issued to a husband, wife, partner, roommate, or friend.

The misuse of the parking placards wasn’t limited to local business owners, as noted in today’s News-Journal:

Mayor Sam Cooper and others said for years they have seen or heard of people coming to the resort, placing a handicapped parking pass on their dashboards and then sauntering off to the beach with coolers, chairs and children in tow. Others would park in 30-minute limit spaces for hours, even days, at a time.

Not anymore. The state law was changed so that Rehoboth and any other city with the same problem can now require the disabled to pay for parking at the metered spots, the same as everyone else. Rehoboth amended its parking ordinance accordingly, and naturally some folks aren’t happy about the change:

"Why did they have to put this little bit of extra burden on the handicapped? I don't know," said [John] Ciarlo, 63, a retired electrician with acute arthritis who also has an artificial knee. "It's not fair."

On the other hand, designated handicapped parking in the non-metered spots remains available, and free.

Rehoboth Beach wasn’t required to start charging the disabled community for using its metered spots. The town doesn’t really need the money. On the other hand, the commissioners clearly felt they needed to make a point about those who abused the privilege.

Life’s not fair. And thanks to the self-centered among us, in some ways it’s not as generous as it could be, either.

June 27, 2004
Fahrenheit 9/11

We went to see F9/11 last night at the Movies at Midway.

The 7:10 showing sold out so quickly (tickets go on sale at noon for any performance that day) that the theater manager opened up another theater in the 14-screen complex for a second, sold-out show at the same time.

Parts of this film were very funny, sometimes painfully so (who knew that tightly edited lead-in video of various officials preparing for on-camera appearances could be so crudely amusing?) Nonetheless, for the most part I’m still angry about this film. Here are a few reasons:

Immediately after the movie finished, I started thinking that maybe Moore was correct in his description of the American people, as quoted by a British newspaper noted by David Brooks in yesterday’s NYT:  

"They are possibly the dumbest people on the planet . . . in thrall to conniving, thieving smug [pieces of the human anatomy]," Moore intoned.

How else to describe his fundamentally boorish, blunderbuss approach to the tendentious propaganda he’s just foisted on the rest of us with this film? Does this smug conniver really think his audience is so stupid that they’ll actually buy into his storyline for more than a few minutes?

My initial reaction was that a filmmaker who supported the Administration's war on terror needed to make a similarly unsophisticated film taking the other side, with the same disdain for balance and nuance that F 9/11 displays throughout. After all, when someone brews up a heady stew of half-truths and outright lies, the best way to reach the same intended audience with a counter-position is to use the same tactic, isn’t it?

Thankfully, it didn’t take long to lose this attitude.

However infuriating it is to see how easily a clever person can distort a complex matter of national security into a steaming pile of dung, throwing the same kind of stuff back at them just won’t do.

Moore is one of the folks about whom a particularly apt lesson applies: you can’t make an a**hole feel like one. Fortunately, not many people fit that description. And just because he’s immune to logic and any notion of fair discourse doesn’t mean that the American people won’t eventually understand the error of Moore’s ways—especially the means by which he created this mockumentary.

Sometimes it’s also helpful to figure out which dogs didn’t bark in a movie like this. For example, there’s not even a trace mention of the State of Israel in this film. That’s a pretty damning omission, especially when Moore spends so much time slamming the Saudis.

As I see it, one of the major US foreign policy goals in the Middle East is to blunt or block the efforts of Iran’s mullahs to make their country a nuclear power, with all the risk that status would entail for Israel. Installing a truly democratic, independent Iraq can destabilize the mullahs to the east, presenting them with a problem with the Iranian people they won’t be able to solve. After all, when the folks next door are living and prospering in freedom, your own subjects might just start wondering why they’re not enjoying the same way of life. And when they act on those thoughts, grand plans for wiping out the Jews a few hundred miles away will be way down the list of things to do, as the mullahs will be focused instead on the festering fight for freedom in their own country.

From what I saw in this movie, however, the idea that we are in this war for our own defense and in part for the defense of one of our closest allies is completely foreign to Mike Moore. Either that, or he simply chose to ignore anything that might conflict with his all-about-the-oilll argument.

Moore’s attitude about his former fellow Flint residents is one of the most annoying aspects of this film. As Moore describes them, those who decide to enlist are essentially lower-class sheep, incapable of making up their own minds without falling prey to the blandishments of a pair of Marine recruiters. How insulting is that?

One of the minor stunts he pulls off in this film also helps illustrate how fast and loose Moore is with the underlying facts.

He goes to Washington, allegedly in an attempt to entice Members of Congress to enlist their own children into the armed services. At one point, you can hear him call out to Delaware’s lone representative, Mike Castle, as Castle walks past.

Here’s a tip—if you want a Congressman to enlist his children in the Marines, you might first want to make sure he has some.

Castle has no children, a simple, easy-to-confirm fact which Moore conveniently ignores for the sake of this shtick. 

This is now the third Michael Moore film we’ve watched, and whatever appeal he ever had as a filmmaker is now gone completely. That’s it. No more Mike Moore for me. He can spend his millions preaching to his own choir if he wants, but it’s obvious Moore has no interest in engaging those with whom he disagrees into anything like an honest debate of the issues.

Life’s too short to spend any more of it with a man like that.


   

Contact Information:

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

fschranck-at-
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