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Archive for February, 2006

CAFO Ordinances

Tuesday, February 28th, 2006

With the state level agriculture officials intent on growing Indiana’s confinement farming operations, and the state level environmental officials only mildly interested in enforcing what little regulation already in place on CAFO’s, many rural residents are looking to their local government to provide some means of controlling the growth of these farms.
 
Of course, controlling growth is what local governments are supposed to do, so it makes sense for local governmental bodies to address CAFO’s in detail.  The agra business is pushing back against local ordinances, either directly by threatening economic loss, or from the top, by getting the legislature to block local CAFO ordinances.
 
The problem with relying on the water permitting process through IDEM as the sole means of regulating CAFO’s is that these regulations only deal with a limited range of issues, primarily dealing with direct discharge of manure into waterways. Appropriate management of a mega-farm requires attention to the soil structure, proximity to dwellings, aquifer and watershed protection, and some way of  mitigating the loss of property values suffered by neighboring property owners.
 
Through a local correspondent, I have a a example of a proposed local ordinance from Elmore County, Idaho that addresses the issues in a comprehensive way: CAFO Draft Ordinance (PDF).
 
Despite the push to get local governments to step in, the business interests behind the push to confinement operations is very well organized and financed. Our own Indiana Farm Bureau recently formed a legal defense fund to provide support for farmers facing legal issues: Farm Bureau’s Ag Law Foundation receives major contributions. Up in Michigan, the Farm Bureau is pushing a band of new legislation that would let CAFO operators avoid the water permitting process as well as force people who file complaints about CAFO’s to give their name and address, and potentially pay the costs of the investigation if the complaint is not substantiated:

Farmers who participate would be exempt from obtaining water pollution permits and get a booklet that guides on environmental law. The package intends to make environmental laws consistent between the state’s Department of Agriculture and Department of Environmental Quality.

“The MAEAP teaches (farmers) to be good stewards of their land and use chemicals properly and properly dispose of animal waste,” said Rep. Leslie Mortimer, R-Horton, who outlined the booklet.

Environmentalists worry these bills will relax Concentrated Animal Feeding Operations, or CAFOs, regulations and lead to more pollution in Michigan’s water systems. CAFOs are factories where animals are confined for at least 45 days in an area, usually a pole barn, without vegetation, said Sierra Club state director Anne Woiwode.

The legislation would exempt polluted run-off water from CAFOs from state water quality laws unless the farmer contaminated ground water intentionally, Woiwode said.

“These facilities have potential to cause serious public health problems with an enormous amount of bacteria in the water and air,” Woiwode said.

The bills require people making more than three complaints against a farm to give personal information and pay for the investigation of the complaint if no infractions are found, Woiwode said. She said people would be scared to file complaints because it could lead to harassment or paying fines. The names of complainants would be released to the CAFO operators.

Link (MSU’s State News).

environment | Comments (0)

Porter County’s Land Use Planning on CAFO’s

Tuesday, February 28th, 2006

Porter County’s planning process has produced a unified development ordinance which would replace its existing zoning and subdivision code. There will be community forums to discuss the proposed plan before it is put before the commissioners for approval. (Story Northwest Indiana Times). This plan was developed in the context of the recent CAFO fights.
 
You can read the entire thing here: Unified Development Ordinance (PDF). Not much in the way of detail for CAFO’s.  The ordinance creates a separate zoning classification for “intense agriculture,” and makes it clear that proposed CAFO’s would have to apply for a special exception.  generally, the ordinance requires:
Recognize the need for quality time, place and manner development standards to minimize impacts on adjacent residential properties while encouraging economic vitality.

Should use this zoning district for existing intense agricultural operations and cautiously for new intense agricultural operations.

[The] Board of Zoning Appeals [shall] require significant buffering and separation from adjacent uses and environmental features, and be very sensitive to the potential for water pollution and impacts to nearby residential and commercial uses.

environment | Comments (0)

Pig Fight

Tuesday, February 28th, 2006

A Delaware County hog farmer, in trouble with IDEM since 1999 over allegations that his manure lagoon violates state environmental law is fighting criminal charges:

Jacobus “John” Tielen is fighting felony charges that claim he knowingly, intentionally or recklessly violate an environmental management law, rule, standard, permit or order in operating his farm near Eaton, about 10 miles north of Muncie.

Defense attorney Scott Shockley has asked a judge to dismiss the charges, arguing that the law was “hopelessly broad” and vague. Shockley also argued that the state Legislature - not state agencies - needed to define criminal acts.

A hearing on the motion was scheduled for Monday, but was delayed by Delaware Circuit Court Judge John Feick until April 12 at the request of prosecutors.

 
The Muncie Star Press has more:

The law he questions “purports to criminalize” hundreds of pages of regulations promulgated by the Indiana Water Pollution Control Board, Shockley complains.

As a result, it’s difficult, if not impossible, for citizens like Tielen to understand what conduct is a crime, Shockley said. The law doesn’t give “fair notice” to citizens, who are “entitled to statutes that specifically identify prohibited conduct,” he said.

The Star Press also points out that the law under challenge is the same provision that Johannes De Groot was charged under earlier this week, as well as the Gruppe brothers over the Muncie tire fire.
 
The statute in question in Indiana Code 13-30-6-1, which reads, in pertinent part:
§ 13-30-6-1. Felony offenses 
(a) A person who intentionally, knowingly, or recklessly violates:

(1) environmental management laws;
(2) air pollution control laws;
(3) water pollution control laws;
(4) a rule or standard adopted by one (1) of the boards; or
(5) a determination, a permit, or an order made or issued by the commissioner under environmental management laws or IC 13-7 (before its repeal);
 
commits a Class D felony.

I would like to get a copy of the brief Shockley filed in support of his motion to dismiss last week. I do not think that the constitutional challenge will get very far. Indiana has had a lot of experience dealing with crimes that are determined by reference to regulations passed by boards or bodies under state law. Think about the tax regulations. In this context, the Court of Appeals once said: “An administrative agency may adopt rules and regulations to enable it to put into effect the purposes of the law, but it may not by its rules and regulations add to or detract from the law as enacted.” Johnson County Farm Bureau Cooperative Ass’n v. Indiana Dep’t of State Revenue, 568 N.E.2d 578, 587 (Ind. Tax 1991), aff’d, 585 N.E.2d 1336 (Ind. 1992).

environment | Comments (3)

Trial Court Questions Appropriateness of Medical Non-Compete Agreement

Monday, February 27th, 2006

Non-compete provisions are fairly standard in employment contracts for many professionals. These contracts typically impose restrictions on where and for for whom a departing employee can work. Despite the fact that such contract provision can significantly limit an employees ability to find another job in their field without relocating, Indiana generally enforces these contracts so long as they are reasonable in their scope.
 
So when 2 Evansville cardiologists recently parted ways with Ohio Valley HeartCare, Inc., and tried to get a court to rule that the non-compete clause in their employment contracts should not be enforced, the trial court upheld the agreements, at least to some extent:
 
 Though finding for Ohio Valley, [Vanderburgh Superior Court Judge Wayne] Trockman significantly rolled back the noncompete restrictions, finding that Millsaps and Morera will be prohibited from practicing cardiology only in Vanderburgh, Posey, Gibson and Warrick counties, and in Henderson County, Ky., for two years.
 
Noting that Indiana law has long upheld the validity of such non-compete agreements, he also noted that other states have raised concerns, at least in the medical field, about whether such provisions are in the public interest:
 
 In his 17-page decision, Trockman noted that the American Medical Association opposes such noncompete agreements. “When restrictive covenants are enforced, they force discontinuity of care, and physician-patient relationships are involuntarily terminated,” Trockman wrote. “The implications that flow from the disruption caused by enforcing covenants include increased costs of care, decreased quality of care and decreased patient satisfaction.”
 The doctors attorney said they are taking their fight to the court of appeals, and are requesting that the trial court stay the enforcement of the provision pending that appeal.
 
I doubt that they will have much luck with the court of appeals. A change in the existing law of such magnitude based on public policy should come from the legislature. Invalidating such provisions would make building a medical provider rather difficult, as the high profile employee doctors could split off and likely take most of their patients with them.
 
I am seeing non-compete clauses in more and more employment agreements as companies try to limit even low-level employees from turning into competitors. Generally, you should understand what you are getting into when you sign one of these things.

Indianalaw | Comments (1)

IDEM: Still Enforcing the Law

Saturday, February 25th, 2006

Maybe an Indiana dairyman took IDEM Commissioner Tom Easterly a little too seriously when the official said they would not be enforcing CAFO permits:
Huntington Dairy Farmer Faces Felonies (Story in the Fort Wayne Journal Gazette).
 
Of course, the farmer in question is IDEM’s favorite whipping boy: Johannes De Groot:
Johannes De Groot is charged with two Class D felonies for building confined feeding structures on his property without obtaining required approval from the Indiana Department of Environmental Management. De Groot owns De Groot Dairy, a 1,400-cow operation at 8631 W. County Road 200 S., near Andrews. Each count is punishable by up to five years in prison and monetary fines.

According to documents filed in Huntington Superior Court, De Groot built a dry cow barn of 120 feet by 60 feet with a cement floor.

A dry cow barn houses cows that are not producing milk. He also constructed a silage pad, used for feeding livestock, of about 150 feet by 80 feet with 3-foot cement walls.

The structures were noticed by an IDEM staff member who was doing an inspection of the farm Sept. 13.

Five years? last I heard D felonies still carried maximum penalties of 3 years. Anyway, De Groot got into a tangle with IDEM a few years back over a manure spill.  That was resolved by an agreement that had the farmer paying $45k and not admitting any wrongdoing. De Groot’s attorney says the farmer had applied for permits for the new structures, and they have never been used. He has no idea where IDEM is getting off filing criminal charges.
 
Maybe IDEM felt like they needed to get rough with someone after appearing to have given up on enforcing CAFO regulations earlier this year.  

environment | Comments (0)

Open and Shut Case

Wednesday, February 22nd, 2006

From the Courier Press, a moment a trial attorney can only dream of (unless it was your client):
The jury had been picked for Terry W. Grossman’s trial, but as soon as the prosecutor finished her opening argument, Grossman abruptly pleaded guilty as charged.Link.

I wonder what it was in prosecutor Donita Farr’s opening that caught Mr. Grossman by surprise.

Criminal Times | Comments (0)

Muncie Tire Fire Cleanup

Wednesday, February 22nd, 2006
2 years after a fire consumed an illegal store of about 55,000 waste tires in Muncie, the operators have pled guilty:
Former tire recyclers Michael and William Gruppe III each pleaded guilty Tuesday to one misdemeanor count of making a false statement about their disposal of waste tire material.

The brothers’ corporation, CR3, represented in court by William, also pleaded guilty to one felony charge of illegally storing waste tires in 55 semi tractor-trailers, each capable of holding up to 1,000 tires, in the 4500 block of Sun Air Drive. Link (Muncie Star Press)

Of course, it was not the illegal dumping of tires on the Gruppe’s farm that attracted IDEM’s attention, nor the fact that 55 trailers were parked, stuffed with tires. No the investigation of the brothers and their company only started once the tires burned. Nevertheless, the prosecution of a company for environmental crimes brought out the state’s regulatory elite:

http://www.kemplog.com/images/Carter_Easterly.jpg

That’s now deputy attorney general Cynthia Crispin (former school teacher turned prosecutor in Fayette County), the AG himself, Steve Carter, and Tom Easterly, head of IDEM. The rarity of the event was not lost on Carter: “Environmental crimes are not frequently prosecuted in Indiana, Carter said”

Now that the 2 year investigation and prosecution is done, we can finally get to the cleaning up of the tires:

In an interview, defense lawyer Linda Pence said: “This is a very complicated matter. We’re trying to resolve civil and criminal and a whole host of things so we can get on with the cleanup, which should’ve been done a few years ago. I think everyone will be pleased if the matter is resolved. We hope the judge accepts the plea agreement.”

Before the plea agreement, the Gruppes were facing six felony charges each of creating a fire hazard, open dumping, and storing waste tires without a permit.

environment | Comments (0)

Wary of Monsanto, Farmers Sue USDA

Monday, February 20th, 2006

Citing fears that Monsanto’s newly approved GMO  alfalfa seed would overrun the existing conventional seed stock, farmers have banded together to sue the USDA over the approval.

The farmers claim the USDA failed to adequately consider the impact of the new seed, citing general concerns over GMO products in foreign markets (Germany, Japan), the potential environmental impact of the seed if it supplants the existing seed, and finally, the impact on farmers, who would be forced to pay Monsanto a high price for using the seed if conventional seeds are supplanted by the "super-seed:"

South Dakota alfalfa farmer Pat Trask, one of the plaintiffs, said Monsanto’s biotech alfalfa would ruin his conventional alfalfa seed business because it was certain his 9,000 acres would be contaminated by the biotech genes.

Alfalfa is very easily cross-pollinated by bees and by wind. The plant is also perennial, meaning GMO plants could live on for years.

"The way this spreads so far and wide, it will eliminate the conventional alfalfa industry," said Trask. "Monsanto will own the entire alfalfa industry."

Monsanto has a policy of filing lawsuits or taking other legal actions against farmers who harvest crops that show the presence of the company’s patented gene technology. It has sued farmers even when they have tried to keep their own fields free from contamination by biotech plants on neighboring farms.

Link  (Environmental News Network)

More:

Feds sued over approval of genetically engineered alfalfa

Farmers, others sue USDA over Monsanto GMO alfalfa

environment | Comments (1)

Your Neighbors in Control

Monday, February 20th, 2006

Every so often, the news will pick up on a dispute between neighbors about the enforcement of covenants in a subdivision. From putting up a fence to parking an RV on the property, these disputes pit neighbor against neighbor and can get pretty nasty.
 
Restrictive covenants are rules for a development that are typically recorded right along with the subdivision plat map. Although a surprising number of folks are truly shocked that they can be forced to follow these rules, as they are part of the recorded record for your property, the law holds that you take the property with knowledge of the restrictions.  In the law, this is called “constructive knowledge.”
 
Most folks do not read over the covenants before buying property.  This is not a good thing, as there are some pretty odd-ball restrictions floating around out there.  A friend of mine lives in a nice, but older neighborhood outside of Chicago, and under a covenant that prohibits trucks and vans from being parked in front of his house over night.  Obviously, this restriction was put into place long before just about everyone started driving SUV’s, minivans and pickups, but it is there, and some of his neighbors are keen on enforcing it, so he is stuck with it.
 
Today the Indy Star picks up a story about a couple in Mooresville who are getting sued by their housing association because they refused to follow the prohibition against above ground pools.  The couple bought one of those (okay tacky) $80.00 pools with the inflated top ring (I admit it, I got one of these last year and became an instant hero to my kids. It was worth every penny). The couple is upset because they were only trying to give their kids something to do, but the housing association is not budging.
Juanita Rael said she is still surprised that disputes over things such as children’s play equipment in covenants can end up being decided in a courtroom.
“I feel like they’re saying kids aren’t welcome here,” she said. “We didn’t know this could happen.”
 
These cases always bring up the debate about whether the enforcement of restrictive covenants is a good thing or not. Many of the arguments focus on the pettiness of the restrictions (like not being able to park an RV on the property) while other critiques focus on public policy concerns (like prohibitions against hanging out your laundry to save energy).  But the courts generally favor the covenants to the extent they simply limit the use to which property can be put.
 
At their heart, the covenants are private agreements: The property owner made a choice to be bound by the restrictions when they purchased the property.  If you do not like the rules, do not buy property in the subdivision.
 
The Star article also talks about the housing associations fees which can range from next to nothing, to several hundreds of dollars per year. Again, if you do not like to fees, don’t buy the property.
 
My biggest concern in these covenants is the ability of the existing property owners to modify the rules by majority vote.  This could mean that a property owner in the minority vote would be subject to rules not in place when they originally purchased their property.  That seems to be to be a bit too much, almost like the government.

Real Estate | Comments (2)

Indiana Campaign Finance Law Under Fire

Saturday, February 18th, 2006

In federal elections, campaign contributions are limited to $2,000 (per individual, per race$2k for the primaries and $2K for the main). Obviously, there are many ways around this limit, but at least you have to try.
 
Indiana has its own campaign contribution limits (IC 3-9-2-4, 5 & 6). These regulations provide for a number of limitations, like a corporation may not contribute more than $2,000.00 towards a candidate for state office, or to a political party.
 
Indiana’s limits come into ridicule today in a column by Kevin Leininger in the Forte Wayne News-Sentinel.  Mr. Leininger follows the plight of a businessman who gave $5,000.00 to the Allen County GOP in 2004. As he used his corporation to make the contribution, this was a violation of the law.  The GOP gave the money back, but the county Democrats want blood.
 
The column points out the lunacy in the law: If the businessman had just made the contribution out of his personal money, it would have been legal, as there is no limit on individual’s contributions to campaings for state office.
 
Not only that, but if the businessman had simply chosen to form his business as an LLC (limited liability company), the contribution would have been legal, as the Indiana statute limits contributions from “corporations,” not from other business types.  The craziness  in the law can be seen by the following:
Mike Gouloff, whose architectural firm just won a $1.3 million city contract to design the police/fire training academy at the former Southtown Mall site, donated about $29,000 to Mayor Graham Richard’s campaign. And the TM1 LLC, for which Gouloff acts as agent, donated another $23,000 in office space and other in-kind services.
So $5,000 from a corporation an illegal violation, but a total of $52,000 to 1 candidate for mayor from essentially the same source is completely above board. I agree with Mr. Leininger, this is ridiculous.
 

Indianalaw | Comments (0)

Something New in the Air

Thursday, February 16th, 2006

Over at the Indiana Law Blog, Marcia posts today about IDEM’s new online air permit search page. I read the story she cites yesterday, and had intended to post about it, but trials and what have you have left me too busy this week.
Anyway, Marcia took the announcement of a new ethanol plant in Cass County receiving its permit yesterday to take the new system out for a test drive. Check her posts for the results.
The new search option gave IDEM Commissioner Easterly a chance to crow about how IDEM is opening up its regulatory process. This view of IDEM’s web presence is different from my own: to my observation, IDEM provided much more in the way of documents, records and other information sources on the web 2 years ago than it does now. Many of the reports listed on their site go up to 2003, or 2004 at the latest, with nothing for 2005. We’ll see.
Running a search on just your county gives you an idea of the industrial activities going on locally. Almost a guide to the county’s economic strength.

environment | Comments (0)

CAFO Face Off: St. Joseph County

Thursday, February 16th, 2006

Well, what was billed as a chance for community dialogue, turned into a predictable face-off last night, at least as reported by Jeff Parrott in the the South Bend Tribune:
 
St. Joseph County Commissioner Steve Ross billed it as an attempt to promote “dialogue” between opponents and developers of a proposed dairy operation east of town, but it seemed few minds were changed Wednesday night in the LaVille High School gymnasium.Link
Purdue professor Darrell Leap voiced his concerns about the soil under the proposed 3,500 head cattle operation:
 
“There are many places in northern Indiana that are much safer to put an operation of this kind, places with better soils, less run-off and more protected aquifers,” Leap said, prompting hearty applause. “I hope there is a lot more investigation of this site.”
But, of course, that’s precisely the issue: there is no additional investigation of the proposed site required. All the facility need do is apply to IDEM for a permit, and if the permit is issued, the only further limitation would be found in the local county’s zoning code.  Few counties in Indiana have any type of requirements for soil and drainage studies prior to placement of a CAFO (I actually do not know of any).
 
IDEM also made an appearance, through David Russell, its agricultural liaison, and he caught some heat from the recent comments from IDEM’s head:
 
An official with IDEM tried to reassure the crowd that the agency remains committed to enforcing water quality standards when it comes to CAFOs. Environmental advocates across the state were incensed recently when IDEM Commissioner Tom Easterly, addressing the annual Indiana Pork Producers convention, appeared to say IDEM would cease enforcement of CAFO permits for three years while the EPA decides how to handle the issue.

“Easterly never said we’re not going to take enforcement actions against CAFOs for the next three years,” said Dave Russell, IDEM’s agricultural liason. “We’re going to continue to hold all farms accountable and protect the waters of the state.”

environment | Comments (6)

CAFO Community Meeting in St. Joseph County

Monday, February 13th, 2006

Mark your calendars, in advance of the expected move to install a 3,500 head dairy CAFO in St. Jospeh County, which I discussed over here, the County Commissioners have organized a community meeting. From a member of the St. Joe County Quality of Life group:
 
St. Joseph County Commissioners are very engaged on this dairy CAFO issue.  They have organized a community meeting this Weds., Feb. 15th at 6:30pm at LaVille High School.  (U.S. 31 South between Lakeville and LaPaz).  The dairy proponents will present their project, IDEM officials will give a brief overview of the permitting process, and we as citizens and neighbors of the proposed facility, will present our concerns.  We have invited our County Councilmen, County Health Department, and Area Plan Representatives.  We would like to extend this invitation to all of the readers of kemplog.com.  Everyone who is involved in the CAFO discussion across Indiana is welcome to come.
 

Sounds like they have all the ingredients for CAFO meeting: producers ready to give slick presentations, government officials there to assure that they will be there to oversee the operation and assure compliance, and several neighbors wondering “Why us?” Even if you do not live in St. Joseph County, you should head over if you can.  These presentations tend to be fairly well organized, and you can expect the same script to be playing in a county near you in the future.  It’s good to know what to expect.

environment | Comments (1)

CAFO Sunday: Jackson County Update

Sunday, February 12th, 2006

Remember when Jackson County Reshuffled its BZA in the middle of a fight over an 8,000 hog CAFO? County council replaced a 3 term BZA member who had voiced support for the CAFO with member of FAIR, a community group opposing the CAFO.  Well the removed BZA member is not done yet: Ousted BZA member files suit against council - Seymour Daily Tribune:
 
The lawsuit, filed in Jackson Circuit Court by Carroll “Gene” Speaker, names the members of the county council as defendants and asks the court to reinstate him on the board of zoning appeals.

environment | Comments (0)

IDEM’s Disdain for Enforcement of CAFO Regs gets Coverage

Friday, February 10th, 2006

Well, it only took a couple of weeks, but the remarks of IDEM commissioner Tom Easterly to Indiana pork producers have finally received coverage in the main stream press:
At the annual Indiana Pork Producers convention, Tom Easterly, commissioner of IDEM, pandered to the audience by telling them he would suspend enforcement of CAFO regulations for at least the next three years. His excuse for not doing his job was that he wanted to wait until the EPA cleared up confusion over federal laws regulating CAFOs.Link (Fort Wayne Journal Gazette)
The piece goes on to cover Easterly’s hasty clarification of his remarks, but notes:
It appears the state legislature has turned down a prime opportunity to discuss needed improvements to CAFO regulations this legislative session, a daft move given the state’s agricultural-expansion objectives. At the very least, Indiana residents need assurances that the person Gov. Daniels has charged with protecting the state’s environment is going to do his job. Easterly’s statements give the public reason for concern.
 

environment | Comments (0)

From the CAFO Front: St. Joseph County

Thursday, February 9th, 2006

Be sure to check out Bremen resident, Kathleen Neal’s opinion piece in the South Bend Tribune:
 
Time is of the essence. There are plans underway for an enormous CAFO dairy with 3,500 cows and a 16-acre open-air sewage lagoon in southern St. Joseph County. There are neighbors right next door; 16 households within one-half mile of this site; 45 within one mile; and 120 within two miles. More CAFOs will soon follow in other parts of the county. These enormous factory farms are headed our way, and we must have the protections in place to make our own county-specific determination on the desirability and preferred placement of such facilities. Therefore, it is imperative that we address the potential impact of new CAFOs on property values, private wells, local roads and bridges and air quality at the county level before it is too late. If factory farms represent 21st century agriculture, then we must bring our zoning ordinances up to 21st century standards to accommodate them.
 
Ms. Neal is urging the county to put regulations in place to give local residents a venue to assure that their concerns are address in the permitting of a CAFO.  She complains that the permitting process through IDEM offers no consideration to the impact on surrounding property owners of the installation of a CAFO, so local communities need to take action.

environment | Comments (0)

Advocates call Change in tax law “Fiscal Intimidation”

Wednesday, February 8th, 2006

When the state acts to protect a child from abuse or neglect, the current system puts the child’s fate into an odd position between 2 government budgets: The state’s and the local county’s. The agency responsible for protecting children in Indiana from abuse and neglect in the Indiana Indiana Department of Child Services (AKA the Division of Children and Family Services, AKA the Welfare Department, or what ever it is called this week).
 
This agency takes legal action through the local county juvenile court, and the judge makes the final determination as to what will happen with the child. The trouble is that frequently the child will need services that cost money, and the issue becomes who is going to pay for those services, the state or the county.
 
A provision inserted in the mammoth tax bill, House Bill 1001, would determine whose budget takes the hit based on whether the judge follows the Department’s recommendation or cuts his or her own path:
 

Under the current system, the child welfare case worker, parents or other family members and a volunteer appointed to speak for the child can all make suggestions on what should happen in a case before a juvenile judge.

The judge then makes his decision and the costs are paid from the child welfare levy. Under (Rep. Jeff] Espich’s bill, if the judge accepts any plan of action other than that offered by the state child welfare worker, the county property taxpayers would have to cover the difference in costs between the state’s recommendation and the final action.

 

This has child advocates upset, and they descended on the legislature yesterday to voice their concern:

 

 ”That’s fiscal intimidation,” said St. Joseph County Judge Peter J. Nemeth. “I have to start thinking about money when I’m looking at this case. Is that what I’m supposed to be doing? Or am I supposed to be protecting that child?” Link (Courier Press).

 

Head of the department, (former Marion County juvenile Judge) James Payne says that to achieve “uniformity,” the judges should be encouraged to listen to the recommendatioons of the Department. I wonder what we are paying judges to do in this system if they are to be forced by fiscal circumstances to simply impose the remedy called for by the Department. At that point, we should just save the money and cut the judges out of the process, leaving the Department to do what it thinks is right.  Of course, that would deprive families of their basic rights to due process before the state steps in and rips them apart, but what kind of due process would they receive if the judge cannot afford to do anything other than accept the Department’s position?

Domestic Relations | Comments (1)

An end of Sorts for the Schwab Foundation Investigation

Wednesday, February 8th, 2006

Attorney Richard Blaich, the director of the Schwab Foundation, a former Indiana charitable foundation that had recently pulled up stakes and booked to Nevada, has died:
 
An autopsy today determined Richard H. Blaich, 59, of Roanoke, died of carbon monoxide poisoning, according to the Allen County coroner’s office. The manner of death has not yet been established.Link (News-Sentinel)
The Foundation is facing a cooperative effort by the Nevada and Indiana attorneys general to freeze its remaining assets and determine if any wrongdoing was involved in the transfer of the foundation from its roots in Indiana to Nevada, where Blaich had purchased a $1.5 million dollar home, allegedly with the foundation’s assets:
 

In December the attorney general’s office sued directors of the $7.5 million Olin B. and Desta Schwab foundation for what it called an illegal merger of Indiana and Nevada foundations.

In January the state seized a $1.5 million home in Henderson, Nev., near Las Vegas, which Blaich, “publicly indicated was his residence,” Carter said in December.

 
Previously on Kemplog:
 
 
 
 

Criminal Times | Comments (1)

IDEM “Clarifies” Statement on no CAFO Enforcement

Tuesday, February 7th, 2006

Well, many folks on both sides of the CAFO debate locally were quite surprised when Brownfields reported that Tom Easterly, commissioner of IDEM told Indiana pork producers that “IDEM will suspend enforcement of Confined Animal Feeding Operation (CARO) permits until the EPA has cleared up the confusion surrounding CAFOs.” (See earlier post: CAFO’s: No State level Enforcement?).
 
Well the reported statement came across as being a broad abandonment of CAFO permit enforcement and this caused IDEM to get a bunch of excited contacts. Brownfields is now reporting that Easterly has clarified his earlier remarks:
A quote attributed to me in a February 2, 2006, Brownfield Agriculture Today news article has caused a significant public stir about the agency and its oversight of concentrated animal feeding operations (CAFOs). Please allow me to clarify the meaning of comments made during the Indiana Pork Producers annual meeting.

Because of proposed deadline extensions in the CAFO National Pollutant Discharge Elimination System (NPDES) rule currently being considered by the Water Pollution Control Board, IDEM will not be enforcing the original deadlines for existing farms to file storm water plans, soil conservation plans, nutrient management plans and NPDES applications. It would not make sense for IDEM compliance staff to cite farms for violating deadlines that may change. But we will continue to hold all farms accountable to protect waters of the state. No variance will be given to farms for violating water quality standards. And my staff and I will continue working to educate, guide, assist and oversee confined feeding operations, statewide.Link (Brownfields story)
Okay, from not enforcing CAFO permits, to not enforcing deadlines on filing management plans.  What a difference a week can make, although I am sure the news sound much better to the pig farmers last week.
 
(thanks to Ed Feigenbaum for the pointer)

environment | Comments (0)

National Crime Database

Sunday, February 5th, 2006
On of the great aspects of this county is the freedom to roam about it at will. With the advent of the interstates, the ability to roam free from interference by local authorities has greatly increased. This creates a sense of freedom for most of us, but it comes with a cost for local authorities: It is all too easy for someone to disappear when they get into trouble. Local miscreants once consigned to life under the watchful eye of the local constabulary, found new lives in distant locals.
The database had been in existence since 1967, but in 1973, Congress took formal action to cause the FBI to initiate and maintain a central database where local police could feed information about wanted criminals, and also assure that the police around the country knew the past misdeeds of people coming in to their region. Thus the National Crime Information Center was born. Known as the NCIC, it is managed by the Criminal Justice Information Systems Division (CJIS) of the FBI.
In 1999, the NCIC got a big upgrade, and as you can imagine, everything is on a secure computer network. The data in the NCIC comes primarily from state and local police who note identification information and criminal histories for people they are dealing with. Early on, the information in the database was limited, as few local jurisdictions had the equipment needed to access it.
Obviously, times have changed, and the database has experienced exponential growth. In fact, on January 6, 2006, it set a new one-day record, processing 5,623,838 transactions (Link. FBI press release). With this growth comes controversy. Some have complained that the database is full of inaccurate records, and does not have a clear method for people to complain if their own records are those with errors. It does not help that the Attorney General took action in 2003:
The Department of Justice (DOJ), Federal Bureau of Investigation (FBI), is exempting the FBI’s National Crime Information Center (NCIC) (JUSTICE/FBI_001), Central Records System (CRS) (JUSTICE/FBI_002), and National Center for the Analysis of Violent Crime (NCAVC)(JUSTICE/FBI_015) systems of records from the Privacy Act.
Most people do not have access to the database. It is limited to those in law enforcement. I get to see NCIC reports when one of my client’s is charged with a felony offense. Over the last five years, in my observation, the system has become increasingly unreliable. Part of the problem is that the system has a flexible method of identifying people. This is due to the fact that people often attempt to escape their prior records by altering their personal information like date of birth, social security number, etc. The system attempts to see through these ruses by bringing up records with similar information, and keeping track of peoples’ aliases.
Unfortunately this flexibility means that we frequently see lots of garbage on these reports. Often a report will indicate that a client has a lengthy criminal record in some distant state where they have never been, and we have to scramble to show the state that my client is not the criminal they system says he or she is.
Most folks do not worry about this much, it does not impact their lives. But that may change. Michael E. Miller found out about the consequences of inaccurate information in the NCIC recently. He was arrested in Ocala, Florida on the authority of an NCIC record that said he was wanted for burglary and theft in Madison County, Indiana. He was held on the charges in Florida until deputies from Indiana could get down and retrieve him. The problem? He was not wanted on burglary or theft charges. Just a mess up, sorry for your inconvenience:
“Someone made a mistake somewhere,” [Prosecutor Rodney Cummings] said. “They put the wrong information into the NCIC (National Crime Information Center). This is not the first time something was entered wrong, but it probably is the first time we brought someone back to the county.”
The lack of accuracy and the inability to challenge the information in the system reminds me of our nations “Do Not fly” list. Will we begin to see more mistaken arrests of people as they move about the country because of the NCIC?

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