Sneaking Suspicions
Archives-- August 3-9, 2003

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This page includes posts from August 3-9, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

August 9, 2003
The anticipation of seafood

I have always enjoyed seafood markets.

The sight of whole fish, fillets, crabs, shrimp, oysters, scallops, and clams, resting on beds of ice, almost always brings forth a smile.

A few years ago I spent an hour just watching the folks at the Pike Place Fish Market, as the customers and staff bustled around the huge Seattle store.

A monkfish lay nearly completely buried under the ice shavings, with only its head appearing on top. As two small children stared at it, one of the staff pulled the tail of the fish, hidden from their view. The monkfish’s huge mouth opened wide, and the two kids jumped nearly a foot in the air.

I knew it was coming, and I still twitched a bit.

I know I’m not alone in my enjoyment of seafood markets. I think it has something to do with a sense of anticipation. I find myself thinking about all the different ways to prepare the seafood and wondering what would accompany it, long before I make the final selection.

Earlier this summer the Big Fish Grill, one of the most popular seafood restaurants in the state, opened up an adjoining market. I splurged and bought a pound and a half of red snapper fillets. I grilled them on foil over charcoal, with salt, pepper, butter pats, and a light dusting of Creole seasoning.


Of course, red snapper isn’t native to this area, or even an occasional migratory visitor to the Mid-Atlantic as far as I know. For local fish, I tend to rely upon my father, who often brings over some of what he’s been catching, such as bluefish, croakers, or striped bass.

This distinction about seafood and where folks obtain it is the subject of a fine article by Florence Fabricant in today’s NYT. It’s an interesting discussion about fish fads, fish supplies, and meeting the shifting customer demands.

I was somewhat surprised by one aspect of Fabricant’s report, however:

When it comes to bluefish, most fish market owners say it's an older generation of customer that likes the fish and will ask for it. "Otherwise I can't give it away," said Mr. Lukas of Guilford, Conn.

Those who haven’t tried a well-prepared bluefish are simply missing out on a fine meal.

It’s true that not everyone will like it, especially if their primary experiences with seafood tend toward the quieter flavors, such as flounder or farm-raised catfish. Nonetheless, there are some great ways to prepare this dark meat.

For those interested, I suggest obtaining a copy of John Hersey’s Blues. It’s a well-written natural history of this migrating fish that's fun to catch as well as eat, written from the perspective of a vacationer on Martha’s Vineyard. A bluefish recipe concludes most of the chapters, which should have the effect of making readers pause after each segment.

In this case, the anticipation should prove equal to the event.

August 8, 2003
What were they thinking?

The courts and the general public often hold government agencies to higher standards than similarly situated private parties.

On occasion this added responsibility can chafe a bit. For example, it seems easier for private parties to obtain environmental permits from the Corps of Engineers than it is for state transportation agencies. DOT staff in several states told me that if the Corps held the private sector to the same standards as the public sector, the regulations would soon change.

On the other hand, sometimes an agency's unique responsibilities are accompanied by unique requirements, and for good reason. When an agency fails to meet those requirements, however, the courts tend to notice, as occurred earlier this week.

In 1996 Robert Lewis filed a complaint with the Equal Employment Opportunity Commission, shortly after being laid off by Asplundh Tree Expert Company. Asplundh had a contract with a Florida utility company, and during the contract there was an incident involving Lewis and a utility company inspector. Lewis' primary complaint was against the inspector, but the EEOC investigator also convinced Lewis to revise his complaint to allege a pay disparity claim against Asplundh.

The EEOC investigation took over 32 months, and Asplundh cooperated. Finally, the agency issued a Letter of Determination finding "reasonable cause to believe" Lewis's charges against the utility, but not Asplundh.

Nonetheless, one week later the EEOC sent a "Conciliation Agreement" to Asplundh, with a 12-day deadline for the company's response. The proposal would have given Lewis backpay for a job that hadn't existed for several years, as well as require a nationwide posting about the alleged incident and a nationwide series of anti-discrimination training sessions for all of Asplundh's management and hourly employees.

Asplundh's counsel asked for an extension on the deadline for response, so that they could confer with the EEOC about this understandably confusing situation.

The EEOC didn't respond, except by sending another letter ending its conciliation efforts, and by filing a lawsuit shortly thereafter.

EEOC staff also contacted the New York Times about the utility company incident. In an article published July 10, 2000, the NYT managed to

 inaccurately suggest[] that an Asplundh employee placed a noose around ... Lewis' neck.

Eventually, both the District Court and the Eleventh Circuit ruled that the bum's rush of Asplundh failed miserably to comply with the EEOC's statutory mandate to engage in good faith conciliation efforts.

The appellate panel held that under these circumstances, the EEOC's conduct

"smacks more of coercion than of conciliation." [citation omitted.]

After recounting this odd procedural history, the Court also noted,

[S]uch an "all or nothing" approach on the part of a government agency, one of whose most essential functions is to attempt conciliation with the private party, will not do.

The panel then upheld the District Court's decision to dismiss the lawsuit and award attorney's fees against the EEOC.

Sometimes one has to wonder what those folks at the EEOC were thinking. Mostly one tends to conclude that they simply weren't.

This kind of screw-up certainly doesn't do the agency any good, and in fact impairs achieving the goal of eliminating illegal discrimination.

Perhaps management will take the hint given to it in this decision, and take some steps to reduce the chance of similar screw-ups in the future.

There's always hope, no matter how dim the prospects.

August 7, 2003
A statistical explanation for all those blinking left turn signals

The Census Bureau confirmed this week what anecdotal evidence has told residents of my county for some time--it's now officially a retirement mecca.

The government report detailed the domestic migration statistics between 1995 and 2000. Two parts of the study stood out:

Census Bureau figures released Wednesday show that Delaware is No. 5 in the nation when it comes to drawing residents 65 and older....Nevada was No. 1 by far, with Arizona, Florida and South Carolina above Delaware.

In overall terms, Delaware ranked 11th nationally in rate of growth by relocation....

The county-by-county data were even more startling. Within Delaware, the northernmost county actually experienced a net out-migration of seniors. Sussex County, which includes Rehoboth Beach and other beach resorts, was among the leading destinations in the entire country, by a large margin.

This information is not a surprise to those of us living there, but it's interesting to see the actual numbers. If anything, the data since the 2000 Census will show an even larger increase in the older population here.

My clients and others responsible for basic infrastructure services are now dealing with these impacts. For example, road signs are being constructed with larger, more readable font styles. Traffic lights are now a bit brighter than they used to be, thanks to new LED technology.

Not everyone is pleased about this influx, of course. A few years ago the State's traffic analysis of a 55+-restricted community came under legal attack by local anti-growth advocates. Part of the challenge related to the fact that there is relatively little information about the travel habits of those living in senior-oriented developments, compared to the usual non-age-restricted subdivisions. The court upheld DelDOT's analysis.

Personally, I couldn't help noticing that most of the leading participants in this anti-growth coalition were themselves folks who had moved to Sussex County. I don't think that fact was lost on the judge, either.

The new Sussex County residents bring with them a combination of shared and different views about their new home. One good example appeared in the News-Journal story about the Census report, in a quote from a retiree from Bowie, Maryland:

[Frank J.] Mirenzi sees some need for improvement in Sussex County.

"It's slower, lower Delaware," he said. "We need more police. We need more people supervising construction. ... It's like the wide-open range. And some roads need major upgrading."

But still, he said, it's a great place to retire. About 60 percent of his neighbors in the Villages of Old Landing are retirees who moved from somewhere else, said Mirenzi, who is treasurer for the residents' board of directors.

"I would say for price of housing, taxes and the beach - they'd all be 10s," he said.

And the summertime traffic in Rehoboth?

"I'm used to Washington, D.C., traffic," he said. "This is nothing."

He's right, at least by comparison. His comment also confirms my sense that tolerance for traffic congestion is essentially elastic, and highly dependent on routine experience.

August 7, 2003
Traffic report

August 6 marked the 19-month anniversary of this site. As of that date, 138,984 visitors have viewed 178,738 pages.

Thanks very much for your patronage. Stop by again soon.

August 6, 2003
When it comes to crimes under the Clean Water Act, there are wetlands and then there are wetlands.

When an appellate court opinion makes a point of describing your efforts to destroy evidence, that’s a sure sign your appeal is probably not going to be successful. 

At least, not yet. If the prior litigation history involving John Rapanos’ development efforts is any indication, the Supreme Court may again be asked to deal with the impact of yesterday's Sixth Circuit ruling on wetlands and the Clean Water Act. 

Rapanos owned 175 acres in Bay County, Michigan, several miles from Saginaw Bay and Lake Huron. He decided to sell it to developers, and had some preliminary work done to delineate any wetlands on the property. The consultant determined that between 49 and 59 acres of the property qualified under the accepted legal definitions at the time.

These findings had an immediate impact on Rapanos’ thinking about what he could obtain for the property. The news also affected his reaction to the consultant’s work:

After receiving the report, Rapanos asked the consultant to destroy any paper evidence of the wetlands on his property and then threatened to fire him and sue if he did not comply. Despite warnings from the Michigan Department of Natural Resources and the United States Environmental Protection Agency, Rapanos began destroying the wetlands on his property by filling them with earth and sand.

A subsequent search warrant revealed that only 29 acres of wetlands remained on the parcel, leading to criminal charges for destroying the other wetlands on his property.

During the trial, however, Rapanos argued that his wetlands were not adjacent to the “waters of the United States” under the Clean Water Act, a jurisdictional requirement for liability.

The prosecution was hotly contested. Over the course of at least seven years it included two trials, two appeals to the Sixth Circuit, an appeal to the Supreme Court, and a eventual remand back to the District Court for reconsideration in light of a separate Clean Water Act case called Solid Waste Agency of North Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001). The United States then appealed the District Court’s dismissal of Rapanos’ conviction based on the Solid Waste decision, thus returning the case to the Sixth Circuit.

The government’s latest appeal concerned the appropriate application of the Supreme Court holding in Solid Waste. That case involved a search for a new landfill location, and an eventual decision to use an old sand and gravel mining area for that purpose. Migratory birds used the seasonal ponds that dotted the property, but these wet areas weren’t connected to any other bodies of water. Under those facts, the Supreme Court held that the wetlands simply didn’t fit the statutory definition of waters of the United States, tied as the law was to the navigability requirement.

As the government noted, however, Rapanos’ wetlands were hydrologically connected to navigable waters, in a “knee bone connected to the thigh bone” kind of way: 

The wetlands are connected to the Labozinski Drain (a one hundred year-old man-made drain) which flows into Hoppler Creek which, in turn, flows into the Kawkawlin River, which is navigable. The Kawkawlin eventually flows into Saginaw Bay and Lake Huron.

In adopting the government’s interpretation, the Sixth Circuit followed a recent Fourth Circuit decision with a similar fact pattern as in Rapanos’ case. That circuit also distinguished the Supreme Court’s Solid Waste decision, based on the relevant facts about the fundamental character of the wetlands’ connection to navigable waters.

The Sixth Circuit therefore reversed the trial court, reinstated Rapanos’ conviction, and remanded for re-sentencing.

Nonetheless, I expect Rapanos to file yet another petition for a writ of certiorari to the Supreme Court, where this issue may be addressed yet again.

Most wetlands in Delaware fit well within the statutory definition of the Clean Water Act, as construed by the Sixth Circuit in this case.

So-called pothole wetlands are more common in other areas, such as in the Prairies of the Midwest.

In Rapanos’ case, his wetlands were admittedly on the outer edges of the required hydrological connection to the navigable waters of the United States--but they were connected.

And that’s enough, at least until either Congress says differently, or the Supreme Court rules otherwise.

August 5, 2003
What if you held a California bond sale and no one came?

The state of California leads the nation yet again, while setting a new record unmatched by any prior California state government.

Unfortunately, this is not a source of pride.

Y'see, Wall Street has a tendency to be remarkably clear-eyed about state government, even if others are not so inclined. The financial folks reacted in predictable fashion to the latest gimmickry adopted in the Golden State's latest budget:

Criticizing the Legislature for postponing most of the pain until next year, Standard & Poor's says the state will be saddled with its BBB bond rating, the worst in the nation, "for the immediate future." The rating is two notches above junk status and is the lowest in California's history.

That's shameful, and I don't blame S&P.

The problem is that what passes for leadership in California doesn't seem to be capable of experiencing any shame for their failure to act responsibly for the sake of the citizenry.

I suppose the governor and the general assembly must continue to believe that the financial community will always bail them out by buying California bonds, leaving it to the next generation of Californians to pay off the increasingly onerous interest and principal.

What's missing from that equation is the possibility of default prior to payment, if future legislatures and governors up the ante by continuing the same policy of postponement.

It's been done before. Several states defaulted on their bonds in 1842, during one of the frequent financial crises that rocked the country during the nineteenth century.

Among the many differences between 1842 and now, however, is the fact that the typical government bond underwriters are now publicly-held entities. These organizations have a fiduciary responsibility to their own stockholders to avoid making significant investments in junk, even for potential resale.

At what point will these publicly-traded investment firms decide that they simply won't buy California bonds, no matter how attractive the promised yield? Wouldn't that decision be reached before California actually defaults?

After all, a bond sale is just a promise to pay. With the California government's current sorry record of evading responsibility, there is an increasing risk that someday the promise will be broken.

Perhaps the folks owning stock in Merrill Lynch and similar firms could intervene for the sake of their own self-interest, by suggesting to management that no further investments in California debt will be tolerated.

Short of cutting off this source of supply, there doesn't seem to be any other way to bring that government out of its adolescent frenzy.

August 4, 2003
Annals of Crime

William King managed to dig himself into a hole when he was caught dealing crack.

On the other hand, the fact that his illegal business was relatively small scale gave him a chance to recover. He was sentenced to serve his time at a minimum security prison operated by the Federal Bureau of Prisons (FBOP) near Marion, Illinois.

Unfortunately, King then dug himself a bigger hole. On December 14, 2001, he scaled the three-foot fences surrounding the prison. King also apparently ignored the hard-to-miss FBOP signs warning the prisoners not to go past the perimeter of the property.

Seven hours later, King reached a spot along a road about two miles away from the Marion facility.

King’s luck changed at that point, in the form of Tim Rodgers, an off-duty FBOP correctional officer, who just happened to drive by in his own truck on a personal errand. As noted by Circuit Judge Diane P. Wood, Rodgers couldn’t help notice something unusual: 

Two legs clothed in prison garb poking out from behind a roadside sign….

After passing by this bucolic scene, Rodgers turned his vehicle around for a second look. He again saw King, this time

in an inmate’s uniform walking along the side of the road heading away from the camp.

Rodgers drove up to King and asked him if he needed a ride:

King initially accepted the offer and moved to enter the vehicle, but then he noticed Rodgers’s uniform. At that point, Rodgers informed King that the jig was up: King had the choice of trying to run and almost certainly being caught by U.S. marshals, or he could get into the truck and be transported back to the camp.

King sensibly chose the latter option.

This incident led to a criminal charge of escape, but during the trial King showed that he hadn’t yet finished digging. He told the jury that he went into the woods near the prison in order to pray, became lost, and was trying to return when he met Rodgers.

The jury didn’t buy it. 

King’s testimony also failed to impress the trial judge, and his last bit of hole-digging earned him an additional penalty. During sentencing the trial judge not only gave King a two-point enhancement for perjury, but also refused King’s request for a seven-point reduction in sentence. With more hubris than good sense, King claimed he actually volunteered to return to the comfortable surroundings of Marion’s minimum security prison.

King’s argument fared no better before the Seventh Circuit. The panel noted that the federal sentencing guidelines permitted some credit for a voluntary return to the prison, under certain conditions.

On the other hand, King didn’t exactly fit the forgiving mold:

King thinks that the district court clearly erred by refusing to interpret [the] sequence of events with emphasis on his willingness to get into Rodgers’s truck and return to the camp. We disagree…. It was only after Rodgers warned King that King could either return with Rodgers to the camp or be chased down by U.S. marshals that King became cooperative. It was therefore eminently reasonable for the district court to conclude that King’s “willingness” to cooperate was not the type that [the guidelines] had in mind.

Whenever one finds oneself in a hole of one’s creation, one’s first reaction should be to stop digging. Perhaps someday Mr. King will learn that lesson.


Contact Information:

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


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© Frederick H. Schranck 2002-2003