Friday, August 15, 2008

Where's the law?

That's the questioned posed by a couple of stories on the Daily Yonder this week.

Here is the link to the first story about regulatory failures in the Crandall Canyon Utah mine disaster a year ago, and here is an excerpt:

The federal Mine Safety and Health Administration (MSHA) does some things badly, but one thing it does well is investigate tragedies after the fact. MSHA has a long tradition of issuing reports that are models of thoroughness and objectivity. The report issued by the agency on July 24 is in that tradition. In painstaking detail, it pins the blame for the disaster on fatally flawed engineering and a company determined to pull more coal than even its deficient plan called for. Moreover, MSHA does not absolve itself of blame. Although Murray Energy failed to report three outbursts prior to August 6 that might have prompted diligent regulators to halt production, regulators of that kind were conspicuous by their absence. MSHA shouldn’t have signed off on Murray’s mining plan in the first place. Delinquency, not diligence, marked every step that led to a preventable tragedy.

MSHA’S official report is valuable – but it’s a second report, written by independent investigators Joe Pavlovich and Ernie Teaster, that should be required reading for policymakers if there’s to be any hope of putting MSHA back on track when the Bush years finally grind to an end. Two weeks after the disaster, with the Labor Department taking flak for the way MSHA deferred to Murray during the rescue attempt, Secretary Elaine Chao (who hadn’t troubled to go to Utah) acceded to demands for an independent review of MSHA’s actions before and after August 6. The investigators chosen were both veteran MSHA district managers, since retired: Pavlovich, a Kentuckian, investigated the Sago Mine disaster in 2006, and anyone who has had the privilege of working with him can testify that he’s tops.. But no one knew whether he and Teaster would really be free to conduct an unfettered investigation. They did. And their wide-ranging review makes it clear that the years 2001-2008 have been bad ones for an agency which – like FEMA – has life-and-death responsibilities and should be assured of commensurate resources.

The report depicts an agency hobbled by lax management, especially but not exclusively at the district level; reduced staffing at a time when coal production has been climbing and inspection activities should have been keeping pace; and a misguided strategy to get around staffing problems by emphasizing “compliance assistance” and “special emphasis activities” instead of law enforcement.

The story picked up in the Daily Yonder was initially published in The Mountain Eagle, in Whitesburg, Kentucky.

And here is a link to the second law story, titled "A Fraction of Justice in an Indian Trust Case."

Here's an excerpt:

Last week, federal Judge James Robertson ruled that plaintiffs in the Cobell case are due $455.6 million for the historical mismanagement of Indian trust funds. This is a fraction (less than 1/100th ) of the $46 billion sought in the latest suit.

The Cobell case is the outcome of a class action lawsuit filed 12 years ago; it has sought redress for gross breaches of trust by the U. S. Department of the Interior, Bureau of Indian Affairs and U. S. Treasury with respect to the management of over 500,000 individual Indians' money collected for use of their lands. In 2001, the U. S. Court of Appeals upheld an earlier federal judge’s opinion that the U. S. government had breached its trust responsibilities to Indians.

* * *

[E]xplaining the Indian trust fund story does requires journeying into ancient history.

In response to white settlers' and entrepreneurs' never ending hunger for land, the U. S. government enacted the Dawes Act in 1887. This policy sought to break up Indian land holdings by allotting small parcels of land, 80-160 acres, to individual Indians who had already been pushed from their land onto reservations through treaties. The government as trustee then took legal charge of the parcels and established the Individual Indian Money Trust to manage and collect revenues generated by mining, oil, timber, grazing and other interests. The money was then to be have been distributed to the allottees and their heirs.

There was trouble from the very start. The Trust was handled in a sloppy and criminal manner. There have been numerous allegations over the years that large oil, gas and coal interests may have received special deals from the Bureau of Indian Affairs for use of Indian lands. Some revenues were not collected, or if collected were distributed spuriously. Despite several court-ordered attempts at reform, the system continues to be hopelessly incompetent. In the words of Judge Lamberth's opinion finding the government guilty of mismanagement, “the Interior Department's handling of the Indian Individual Money Trust has served as the gold standard for mismanagement by the federal government for more than a century."

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