Sneaking Suspicions

Archives-- September 22-28, 2002

Commentary from a practical perspective

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This page includes posts from September 22-28, 2002 in the usual reverse order. Each week's postings on the home page are perma-linked to these pages.

September 28, 2002

Five foreign policy Claudes

I have some trouble thinking that anyone on God’s green earth would have been surprised to read this headline today:

Iraq Rejects Proposed UN Resolution on Inspections

Wow. You could have knocked me over with a feather with that one.

This beauty earns five foreign policy Claudes.

Now, of course, there may be those who will express their concern that the recent Gore speech to the Commonwealth Club and similar remarks by others have only emboldened the Hussein regime.

There may even be those who suggest that politics may be playing a role in the calculations of some opposing the administration. They may express doubts that those who seek to avoid supporting the administration's Iraq policy are acting on any other impulse than personal ambition.

In response, I suggest using a phrase that someone else reportedly used recently:

"I have not raised those doubts, but many have.''

September 27, 2002

Fly Like An Eagle—or maybe not*

When many folks hear about the Endangered Species Act, they tend to think about bald eagles and other handsome animals who need protection from the ravages of mankind.

Fortunately, after years of work, the symbol of America is no longer considered “endangered”, at least in the continental United States.

On other occasions, the memory of snail darters or other controversial designations come to mind.

The mayor of Colton, California is now trying to de-list another of God’s little creatures, who unfortunately can’t rely on either good looks or patriotism to garner some countervailing public support.

It’s a fly.

The Delhi Sands insect, reportedly about the size of a straight pin, is the first and only fly ever to make the Endangered Species List. The Delhi Sand Dunes east of Los Angeles, built up over the centuries by prevailing winds carrying fine particles into the desert valley, is the only place where these critters live.

That is, if you can call it living:

The flies only emerge for eight weeks a year - between August and September - to lay eggs, and then die off until the next year. There are believed to be several thousand left.

Even if we humans might not think that’s much of a way to exist, the bug met the requirements of the ESA regulations. Now, however, its protected status is allegedly having a negative effect on the local infrastructure and economy:

Mayor Deirdre H. Bennett said the city would no longer participate in efforts to create a habitat for the fly and would work to get the fly off the endangered list.

"Our region has lost its ability to provide safety improvements and jobs to its residents because of a fly."

For years, the fly has held up private development and public improvement projects in Colton, a community of 49,000, and other nearby cities. Those projects include plans to install street lights at the dunes, which have become an illegal dumping ground.

More recently, the fly stopped the development of a $10 million sports complex in Colton and a multimillion-dollar county project to improve a freeway interchange that was supposed to be a main artery between Interstate 10 and Interstate 210, Bennett said.

The mayor said the U.S. Fish and Wildlife Service would allow the projects if the city bought, set aside and maintained additional land.

"Why for the sake of a fly do we have to spend more than $3.5 million of taxpayer money for a $10 million project?" said Kathy A. Kivley, the assistant city manager.

The Fish and Wildlife Service responded with some thoughtful, yet pointed comments:

"The Endangered Species Act does not differentiate between a species that is cute and fuzzy with a species that may not have the charisma but has a value. The intent of the act was conserve our natural, native fish, wildlife and plants," said spokeswoman Jane Herndon….

"The city of Colton is not unique in having an endangered species. All across this country, we have cities that have endangered species ... and we've worked together in partnership to develop a plan that makes biological sense and balance the conservation needs of the species and opportunity for economic development."

The Wildlife Service has the better argument, at least under the current statutory and regulatory scheme.

My clients and literally thousands of other government agencies have dealt with compliance requirements of the ESA many times since the law’s creation. There have been more than a few occasions where the cost of protecting a species’ habitat or taking other steps to avoid harm became truly impressive. For example, I recall one instance in Delaware where the need to provide a passage for turtle migration caused a design change from the original $200,000 culvert to a $2 million bridge.

Even so, there is a long history in this country of trying to meet potentially conflicting policy goals, often with a measure of success.  The ability to bring economic development efforts to an area is rarely completely stymied by the requirement to avoid causing damage to already endangered species. On the other hand, the price tag for environmental conformity may not always seem worth it.

The best way to encourage a real debate about social policy choices is to follow the current legal requirements that express those choices as religiously as possible. At the same time, make sure everyone knows about the resulting compliance costs, in dollars or otherwise.

If people come to believe that the effort to meet a particular goal should either be achieved in some other way or that a competing consideration should win out instead, they will eventually make that call with reform legislation.

The point is to be clear-eyed about the true costs and benefits of the decisions that were actually made in adopting the original goals.

*I’ve never been a huge fan of the Steve Miller band, but this old song title just fit the story so well I had to put aside my aesthetic misgivings.

The Delhi Sand Dunes Fly--An Endangered Species
Delhi Sand Dune Fly

September 27, 2002

Somebody likes me!

Here’s a special thank you to C.D. Harris for selecting my entry as the winner of this week’s caption contest. It was a pleasant surprise!

September 26, 2002

Railroads Reap Real Relief with 4-R Act*

A new 2d Circuit Court of Appeals decision issued September 25 probably won’t be considered a hot news item. Nonetheless, it should have an impact worth many millions of dollars, affecting thousands of property owners.

It’s also an interesting example of current legal interpretations of 11th Amendment immunity.

CSX Corporation obtained some of Conrail’s assets after the Surface Transportation Board approved a kind of split acquisition, in which Norfolk Southern also bought a similar vast collection of property owned by the federal railroad corporation.

The scale of CSX’s new holdings is impressive. In New York State alone, for example, the properties extend into 28 of the Empire State’s 62 counties, and the lands and improvements are subject to 167 separate New York taxing districts .

The State Office of Real Property Services (ORPS) oversees the property tax assessment procedures used by each county.

Apparently the tax assessors deserved to be watched.

CSX sued ORPS and county and state officials for injunctive property tax relief in Federal Court, alleging that it had been subjected to discriminatory treatment. They based their claim for Federal jurisdiction for the lawsuit on a unique piece of federal legislation designed to protect railroads from exactly this kind of, shall we say, special consideration.

After 15 years of hearings and negotiations, Congress enacted the Railroad Revitalization and Regulatory Reform Act of 1976 (the "4-R Act"), 49 U.S.C. § 11501. The legislative history included these highlights:

  • “[R]ailroads are over-taxed by at least $50 million each year") (quoting H.R. Rep. No. 94-725, at 78 (1975);
  • These companies “’are easy prey for State and local tax assessors' in that they are `nonvoting, often nonresident, targets for local taxation,' who cannot easily remove themselves from the locality.") (quoting S. Rep. No 91-630, at 3 (1969); and
  • The new law was "designed to put an end to the widespread practice of treating for tax purposes the property of common and contract carriers on a different basis than other property in the same taxing district. . . . [D]espite State laws requiring uniform tax treatment, railroads . . . are discriminated against as compared to other property taxpayers in the same jurisdiction.") (quoting S. Rep. No. 91-630, at 1-2 (1969)) (emphasis deleted).

The new law’s remedy provisions had its own intriguing limitations:

  • Only railroads could take advantage of it;
  • The triggering event for potential state and local government liability took place only when the amount by which the railroads were discriminated against exceeded 5% of the ratio of assessed value to true market value of other commercial and industrial property in the same jurisdictions; and
  • The injunctive relief could only reduce the discriminatory assessment to match the 5% threshold.

The legal argument concerned whether the powers granted to Congress under Section 5 of the 14th Amendment abrogated the state’s sovereign immunity that would be otherwise recognized by the 11th Amendment.  

The Second Circuit’s opinion accepted the logic of three prior decisions by the 3rd, 9th, and 10th Circuit Courts on this issue. It ruled that CSX could go forward with its suit, against the state’s strong arguments that the 4-R Act was primarily a piece of Commerce Clause legislation:

To be sure, much of the legislative history of the 4-R Act points to Congress' Commerce Clause powers as the triggering authority. …[I]f the 4-R Act were passed solely pursuant to Congress' Commerce Clause powers it would not be a valid abrogation of the states' Eleventh Amendment immunity. However, the 4-R Act explicitly prohibits certain acts that "unreasonably burden and discriminate against interstate commerce." 49 U.S.C. 11501(b) (emphasis added). More importantly, the discriminatory conduct that the 4-R Act attempts to regulate can be easily associated with Section 5 powers. In short, the legislative history of the 4-R Act, coupled with the clear intent of Congress to alleviate allegedly discriminatory taxing schemes is sufficient to demonstrate that the 4-R Act was passed pursuant to Congress' Section 5 powers.

In a footnote, the Court noted that some elected officials apparently woke up to this situation, at least in part:

[A]fter oral argument of this appeal, the New York State legislature passed a bill affecting assessments of railroad property in a manner favorable to CSX. These changes would not apply to railroad ceiling assessments until January 1, 2003. The legislation awaits the Governor's signature. In any event, it does not affect the tax year at issue in this case.

Even if Governor Pataki signs this legislation, therefore, as noted above the CSX lawsuit will likely create tax effects worth millions of dollars, affecting thousands of New York taxpayers.

After all, who do you think really benefits from discriminatory assessments?

*Sometimes headline creating can be a huge steaming pile of alliterative amusement, don't you think?

September 25, 2002

Striking a blow for women

Ralph Peters is right:

American women kick ass.

The local newspaper today gave a very good example.

An 84-year-old woman called the Wilmington police to report a suspicious man checking out parked cars in her neighborhood. She met the officers when they arrived at the scene, and pointed the man out in one of the cars. According to police, the man then left the car and pushed the old woman to the ground, breaking her nose.

This less than respectful attitude toward a senior citizen caused an immediate reaction:

Lt. Carolyn Henry wrestled with [Omar] Torres[, 24] and his jaw was broken in two places when his face struck a curb during his arrest. Torres was treated at Wilmington Hospital and taken to Gander Hill prison after failing to post bail. He is charged with assault on an elderly victim, attempted theft, resisting arrest and other offenses. The woman was treated at St. Francis Hospital and released. Henry was not injured.

Some people need to learn a painful lesson that it's just not right to hit women, especially when they're old enough to be your grandmother.

Sometimes that lesson is even more painful when it's administered by a female.

At least, one can hope that it is.

September 23, 2002

Book Update and Blog Break

Today the publisher sent more material for the mock-up pages for the golf fashion book. Accordingly, with a hard deadline approaching, I need to take a break from blogging for a while. There are only so many hours in the day, and it's not like the demands of my normal professional employment are slacking off, either.

In the meantime, take a glance through the contents page and pick out a favorite or two to read again.

I'll be back soon.

September 23, 2002

Chutzpah Alert

Several years ago Bob Geldof and the Boomtown Rats composed and performed a great song called “I Don’t Like Mondays”. Geldof and the group were inspired by the heinous crime committed by a then-16-year-old girl. She shot up a school playground near her home, killing 2 and wounding 9 others. During the siege, she used that phrase while talking to a reporter.

A similar, deeply offensive choice of excuse appeared in this AP story today:

A woman caught on videotape beating her child in a department store parking lot said Sunday she lost her temper because she was having a bad day.

… On a surveillance videotape of the Sept. 13 incident, which has been televised nationally, [Madelyne Gorman] Toogood appears to make punching motions toward her daughter, who is mostly hidden within the sport utility vehicle.

… Toogood was charged with felony battery to a child, which carries a maximum penalty of three years in prison.

There may be some other precedents for those seeking to rationalize the indefensible.

For example, I believe I read somewhere that Lee Harvey Oswald was feeling a bit “out of sorts” on November 22, 1963.

In addition, it’s entirely possible that O. J. Simpson had that “not so fresh feeling” on June 12, 1994.

In fact, it’s probably only a matter of time before an accused person appears on the network morning news programs, and in a matter of fact tone tells us that the multiple murders of her family were simply the predictable result of “being just a tiny bit irritable, really.”


September 23, 2002

A Near-Classic Headline

The following true headline is about as close as I’ve ever seen one come to matching the old standby of journalistic wit, Man Bites Dog:

Man Arrested for Harassing Dog

As someone else might say, I am not making this up.

September 22, 2002

Testing, Testing.

Let's see if this sucker is working now.

UPDATE: It's working, but some of the composition techniques that worked in FP98 are not at all what works with FP5.0. This change is not going to be as simple as I thought. Perhaps reading the bloody manual would help.

Contact Information:

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


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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