Paltry fines, little deterrent in grain bin deaths

NPR has been reporting this week on grain bin deaths, with a particular focus on OSHA penalties and the trend to diminish these penalties and fines on appeal.  Here the lede from one of Howard Berkes's stories:

Nearly 500 farmers and workers have suffocated in grain storage bins in the past 40 years. The worst year on record was 2010, with 26 people dying. Hefty fines and criminal charges are possible for negligent employers. But NPR and The Center for Public Integrity found that enforcement is weak, even as workers continue to die.

NPR presents thorough documentation of these grain bin deaths here, searchable by state and including details of initial fines imposed and any subsequent reductions to those fines.  And here is a discussion of those reductions: 

OSHA says companies have a legal right to challenge and negotiate fines and citations. 

"We do everything we can within the current regulatory framework," says OSHA administrator David Michaels. "We issue large fines. We go after companies we think are scofflaws. We do repeat visits to the worst companies." 

Michaels also says OSHA has urged both state and federal prosecutors to file criminal charges. "We don't have criminal prosecution powers," he says. 

Even in the most egregious cases of employer misconduct, in which workers as young as 14 were endangered or killed, no one has gone to jail. In fact, Department of Labor criminal referral records obtained under the Freedom of Information Act show that criminal prosecutions are rare in grain deaths. 

At issue regarding many of the violations is whether or not the silo owners were "willful" in violating safety laws.  In one grain bin accident that took the lives of two minors in Mount Carroll, Illinois, in 2010, the following violations were identified--in addition to the employment of under-age workers:

• required the boys to walk down the grain
• didn't provide required grain bin safety training
• didn't require the use of federally mandated safety harnesses, which were hanging in a shed near the bin, dusty and unused
• didn't provide a trained observer to respond to trouble
• and kept the conveyor system running while the boys were in the bin, which created the quicksand effect that trapped them.

The owner of the storage in that case, Haasbach LLC, asserted it was not subject to OSHA jurisdiction or regulation. Haasbach's lawyers "claimed it was a farm operation exempt from the rules that apply to commercial grain facilities and the violations cited by OSHA."  That argument apparently failed.

This discussion reminds me of Anne Marie Lofaso's "What We Owe Our Coal Miners," in which she seeks to answer the question: "What do citizens of a “just” society owe workers, such as coal miners, who daily risk their lives for our collective comfort?"  Perhaps grain bin workers are (at least somewhat) similarly situated:  they do important work that contributes to our collective comfort, inasmuch as lower grain prices do that.  So, what do we owe them?   More specifically, I suppose, the question is whether we owe them greater safety precautions and, in the absence of such (reasonable) precautions, whether the federal government should impose fines to create a greater deterrent to the sort of (apparently common) behavior that puts grain bin workers at risk.

Coincidentally, as I was drafting this post, the New York Times posted this story regarding how OSHA fails to address "fester[ing]" long-term health risks in another industry, furniture manufacturing.  That story, too, quotes OSHA administrator David Michaels.  Here's an excerpt from Ian Urbina's story:

OSHA, the watchdog agency that many Americans love to hate and industry often faults as overzealous, has largely ignored long-term threats. Partly out of pragmatism, the agency created by President Richard M. Nixon to give greater attention to health issues has largely done the opposite. 

OSHA devotes most of its budget and attention to responding to here-and-now dangers rather than preventing the silent, slow killers that, in the end, take far more lives. Over the past four decades, the agency has written new standards with exposure limits for 16 of the most deadly workplace hazards, including lead, asbestos and arsenic. But for the tens of thousands of other dangerous substances American workers handle each day, employers are largely left to decide what exposure level is safe. 

By contrast, OSHA has two dozen pages of regulations just on ladders and stairs. 

“I’m the first to admit this is broken,” said David Michaels, the OSHA director, referring to the agency’s record on dealing with workplace health threats. “Meanwhile, tens of thousands of people end up on the gurney.”

The furniture manufacturing discussed in the story, and the injured worker on which it focuses, are in nonmetropolitan western North Carolina.  The dateline is Taylorsville, North Carolina, population 1,799.  Taylorsville is the county seat of Alexander County, population 37,193.  The county has a poverty rate higher than 16%, and only 11.3% of its population have at least a bachelor's degree.   In other words, a lot of Alexander County's workforce has little bargaining power with employers.

An earlier post about federal failures to protect extraction industry workers is here.       

Imploring the Ivy League to attend to rural strivers

One of the most e-mailed items in the New York Times for the past day or so has been Claire Vaye Watkins "The Ivy League Was Another Planet." (The alternative headline is "Elite Colleges Are As Foreign as Mars.") In her op-ed, Watkins recounts her journey from nonmetropolitan Pahrump, Nevada to college at the University of Nevada, Reno. Her story is that of a kid from a working class family in "rural" Nevada (her description; technically, Pahrump is not rural because, though unincorporated, its 2010 population is more than 35,000) who didn't know about colleges or how to pick one.  Lucky for her, Watkins went on to get an MFA from Ohio State and is now an assistant professor of English at Bucknell.

Watkins writes of getting her wake-up call about dramatic variations in educational resources when she was a high school senior, vying for a prestigious state-funded scholarship. That's when she met a peer from a Las Vegas high school who attended a magnet school, took college prep courses, had a tutor, and had spent time abroad.  The variations in resources, she realized, were based on geography:  he was an urban kid and she was a rural one.  But they were also based on class.  She doesn't specify the background of the Vegas teen, but she mentions that her mother and step-father had not gone to college.  I note that Pahrump's poverty rate is a fairly steep 21.1%.  Just 10.1% of residents there have a bachelor's degree or better, compared to about 30% nationwide.

Even after meeting the privileged teen from Vegas, however, Watkins didn't know what she didn't know.  She remained ignorant of the world of elite colleges, a sector that represented the "other planet" or "Mars" of the headline.  Instead, Watkins applied to UN Reno, she explains, because she had once taken a Greyhound bus to visit friends there. As Watkins expresses it, when poor rural kids apply to college (which, I might add, is altogether too rare), they typically apply to those institutions to which they have been "incidentally exposed."

Commenting on what admissions deans at elite schools might do to reach out to high-achieving, poor rural kids--whom they purport to be interested in for reasons of diversity and excellence--Watkins suggests, tongue in cheek, that they do "anything." More specifically, Watkins cleverly contrasts Ivy League efforts to recruit rural kids, which might be characterized by the terms "zip" and "nada," with military efforts to recruit the same kids, which might be characterized as "fulsome" and "robust." Guess who's winning that contest? The military, of course.  Here are just a few of the points Watkins makes:

• No college rep ever showed up at Pahrump Valley High school, while the military brought a stream of alums through there on a regular basis.
• The school devoted half a day each year to ensuring that every junior took the Armed Services Vocational Aptitude Battery (ASVAB); that test was free, while taking the ACT and SAT was  not.  
• "But the most important thing the military did was walk kids and their families through the enlistment process."

Watkins closes by noting that elite colleges need to do more to reach those she calls "the rural poor," concluding that, until they do, "is it any wonder that students in Pahrump and throughout rural America are more likely to end up in Afghanistan than at N.Y.U.?"

The jumping off point for Watkins' op-ed is a recent paper by two profs (from Harvard and Stanford, no less), Caroline Hoxby and Christopher Avery, "The Missing 'One-Offs':  The Hidden Supply of High-Achieving, Low Income Students."  That paper was publicized in the Times last week-end in David Leonhardt's story, "Better Colleges Failing to Lure Talented Poor."  The summary and conclusions of the Hoxby and Avery paper do not talk about rural-urban difference in relation to these missing "one-offs."  (They do, however, employ a tiny bit of geographical nuance in Table 9, listing two categories of "rural" students, those near an urban area and those far from one). Instead, Hoxby and Avery focus on the benefits to students of being in "geographic concentrations of high achievers."  They write in their abstract, for example, that these high-achieving students who fail to apply to elite schools

come from districts too small to support selective public high schools, are not in a critical mass of fellow high achievers, and are unlikely to encounter a teacher or schoolmate from an older cohort who attended a selective college.  

And where might those students be?  mostly in rural schools.  For folks like Watkins, it isn't hard to read between the lines and see that the high achievers most likely to slip between the cracks are kids in rural schools.  

All of this brings to me my own experience.  Like Watkins, I can see that many of the "missing" students Hoxby and Avery are talking about are rural.  My own K-12 school in rural Arkansas had an enrollment of about 400--and no counselor whatsoever to advise on college admissions. The first Ivy League graduates I ever met were professors at the University of Arkansas. I was there because, like many who Hoxby and Avery studied, I assumed it was the best bargain for me.  I didn't apply elsewhere.

I have to trust that the numerous people reading Watkins' tale will believe her revelations of her naiveté regarding college.  I certainly hope so, though I have been struck over the years at how many people are incredulous at my similar tale.  How, they marvel, disbelief in their voices, could you not have known to go to a "good school"?  People of privilege can find it remarkably difficult to believe that other people could really not know the things that are the very intellectual and emotional wall-paper of a life of privilege.

But there is another, related problem:  poor rural kids and the diversity they represent often go unvalued by educational decision makers.  Because these rural kids Watkins is talking about are often white, they don't appear, at first blush, to represent diversity.  Plus, I find privileged whites are just as uncomfortable around working class whites as they are around people of color--maybe more so in this day and age.  That discomfort--unmitigated by the need be politically correct because no PC imperative exists regarding poor whites--may deter the privileged from reaching out to recruit poor whites.  After all, as Watkins points out, it's not like these elite colleges are hurting for applicants.

Finally, privileged metropolitan and cosmopolitan types tend to hold the limitations of rural education against those who are products of it, discounting what these kids have achieved because of the absence of AP classes, the right extracurricular activities, and such.  (Read more here and here).  I recall being on the selection committee for the first round of elite Sturgis Fellows at the University of Arkansas in the late 1980s.  When I spoke up for a candidate with what I considered to have stellar credentials, a professor on the selection committee quickly countered by noting that the student was from a rural school, suggesting that the student's achievements had to be kept in proper perspective--namely that s/he had not been subjected to true intellectual rigor.  I recall meekly pointing out that I, too (then the University of Arkansas's undergraduate valedictorian) was the product of a rural school.  What was I?  chopped liver?  or just an anomaly?  I'll never know how the selection committee saw me.  But perhaps because I protested so meekly, my comment--and the outstanding rural candidate--got no traction.  All of that inaugural group of Sturgis Fellows, as I recall it, were from sizable high schools.    

Cross-posted to ClassCrits, UC Davis Faculty Blog, and SALTLaw Blog.    

The law and hunting, never shall the two meet

So a little while ago one of the directors of California's Fish and Game Department went up to Idaho for a hunting trip. He paid for all of his tags and licenses. He followed the rules and hunted in season. And he got fired for it. Why did he get fired for hunting by the rules?

He killed a mountain lion.

Commissioner Richards was fired because he hunted where he was allowed to hunt and kill an animal he was allowed to kill.

Now mountain lions, or cougars, are not endangered. They are doing rather well in fact. But for a period of time in California, their numbers did dip a bit. So California banned the hunting of mountain lions, except for those that have become a risk to people and domesticated animals.

Now a Fish and Game director has to be a bit of a scientist, a bit of a legal stickler, and a bit of a backwoods kinda guy or gal. You want a commissioner that is a concerned outdoors person, who understands game management and wants to keep populations healthy. These kinds of people tend to be hunters themselves.

Hunters want one of their own to manage game populations because true hunters tend to want healthy game populations to hunt for perpetuity.

So when the hunter in Commissioner Roberts wanted to go after a mountain lion, he went and applied for a tag in Idaho and was selected to hunt there. All by the book. He had a successful hunt and killed a lion.

His down fall was the picture he took of his kill went public. The anti-hunting community went wild. Richards avoid fines that some tried to levy at him, but he was pushed out of his position as President of the Fish and Game Commission.

Why was a person nearly fined by California for a non-illegal action carried out in another state? Why did a person lose his job because he did a perfectly legal activity? Because of emotion. I have to admit that I'm writing this blog post with a bit of emotion too, but it seems crazy that a person loses their job and faces sanctions for something that is not wrong in the eyes of the law.

Some states have seen the writing on the wall and passed amendments to their constitutions to protect hunting and fishing. I don't think California could ever garner enough votes for that. Public officials in California that hunt may wish we could.

New Mexico water wars pit rural against urban, sorta'

Felicity Barringer openly discussed the rural-urban contest over water in her report for the New York Times yesterday. The headline is "New Mexico Farmers Seek 'Priority Call' as Drought Persists," and the dateline is Carlsbad, population 26,296, along the Pecos River, in the southeastern part of the state.  There, alfalfa farmers and cattle ranchers are considering exercising a rarely used "priority call," which basically reflects the first-in-time, first-in-right principle.  They would be invoking the priority call for water from the Pecos against Roswell, a city of only about 50,000, 75 miles to the north.

The "northerners" of Roswell have long pumped groundwater from the Roswell-Artesia aquifer, and those farther south around Carlsbad have taken surface water.  But the current drought, which left parts of the Pecos River dry for 77 days in 2012, means there's too little water left in the river to meet the needs of those around Carslbad, which are mostly agricultural.  Barringer explains the legal move that Carlsbad is now considering:

A priority call, an exceedingly rare maneuver, is the nuclear option in the world of water. Such a call would try to force the state to return to what had been the basic principle of water distribution in the West: the lands whose owners first used the water — in most cases farmland — get first call on it in times of scarcity. Big industries can be losers; small farmers winners.

Barringer quotes Dudley Jones, manager of the Carlsbad Immigration District, for the proposition that law and practice have long diverged.

We have it in the state Constitution: First in time, first in right. But that’s not how it’s practiced.

In the "political pecking order," Carlsbad's alfalfa farmers, despite their first-in-time right, "have little clout," Jones comments, predicting that the state water authorities will not "cut out the city.”

They’re not going to cut out the dairy industry.  They’re not going to cut off the oil and gas industry, because that’s economic development. So we’re left with a dilemma — the New Mexico water dilemma.

As this quote makes clear, not all of Roswell's interests are typically urban. They include ag and extraction enterprises typically associated with rural economies, but also industrial aspects of those enterprises, including an oil refinery and the state's largest cheese factory.  Indeed, most would not consider a city of 50,000 to be urban.  But Barringer closes with a quote from Dr. Daniel McCool, a University of Utah political scientist and author of River Republic: The Fall and Rise of America’s Rivers.  He frames the conundrum in somewhat starker rural-urban terms and makes clear that more is at stake than little ol' Roswell in the West's water wars.

Let’s see, we could dry up some hay farms or we could dry up Las Vegas. Which one is it going to be? It’s going to be the new economy of the West with the focus on recreation and tourism and hunting.  There will be farming ghost towns.

Rising disability as a rural phenomenon

Chana Joffe-Walt reported this week as part of NPR's week-long series on disability in America.  Her piece was called "Unfit for Work," and in it she explored the concept of disability that garners for the designee a monthly payment from the federal government.  As Joffe-Walt explains, 14 million people now get a disability check from the federal government, adding up to more than the federal government spends annually on food stamps and welfare combined.  Joffe-Walt notes that people "on disability"--as the status is often expressed--"are often overlooked in discussions of the social safety net." But, she asserts, even though those on disability are not counted among the unemployed, the who, what and why of those "on disability" is very much a story about the economy.  What Joffe-Walt makes less clear is that it is a story about local economies as much as it is a story about the national economy.  Joffe-Walt sites her story in Hale County, Alabama, population 15,388, and her investigation takes her to consideration of that county's limited labor market and how those very limitations contribute to adjudications of disability because of the candidates' inability to find the sort of job that will accommodate their physical limitations.  Yet Joffe-Walt never talks about the ways that rural economies differ from more robust and diverse metropolitan labor markets, which may feature more jobs that are less physically taxing.  Thus Joffe-Walt never expressly discusses disability as a rural phenomenon.

Here's more from Joffe-Walt's "Unfit for Work" report:

There's no diagnosis called disability. You don't go to the doctor and the doctor says, "We've run the tests and it looks like you have disability." It's squishy enough that you can end up with one person with high blood pressure who is labeled disabled and another who is not.

I talked to lots of people in Hale County who were on disability. Sometimes, the disability seemed unambiguous.

* * * 

Other stories seemed less clear. I sat with lots of women in Hale County who told me how their backs kept them up at night and made it hard for them to stand on the job. "I used to cry to try to work," one woman told me. "It was so painful." 

People don't seem to be faking this pain, but it gets confusing. I have back pain. My editor has a herniated disc, and he works harder than anyone I know. There must be millions of people with asthma and diabetes who go to work every day.

* * * 

As far as the federal government is concerned, you're disabled if you have a medical condition that makes it impossible to work. In practice, it's a judgment call made in doctors' offices and courtrooms around the country.

Joffe-Walt goes on to interview a Hale County physician, Perry Timberlake, who is associated with many of the determinations of disability there.  She puzzles about the fact that, when making a disability determination, Dr. Timberlake always asks his patient, "what grade [in school] did you finish?"

Joffe-Walt continues:

What grade did you finish, of course, is not really a medical question. But Dr. Timberlake believes he needs this information in disability cases because people who have only a high school education aren't going to be able to get a sit-down job. 

Dr. Timberlake is making a judgment call that if you have a particular back problem and a college degree, you're not disabled. Without the degree, you are.  

Over and over again, I'd listen to someone's story of how back pain meant they could no longer work, or how a shoulder injury had put them out of a job. Then I would ask: What about a job where you don't have to lift things, or a job where you don't have to use your shoulder, or a job where you can sit down? They would look at me as if I were asking, "How come you didn't consider becoming an astronaut?"

Later in the story, Joffe-Walt illustrates the point by referencing job openings in Hale County:

Occupational Therapist, McDonald's, McDonald's, Truck Driver (heavy lifting), KFC, Registered Nurse, McDonald's.

In other words, there aren't many desk jobs in this corner of Alabama, especially for those who are poorly educated. Joffe-Walt discusses the impact of education level and the changing labor economics landscape on this disability phenomenon, but she fails to grasp--or at least does not articulate--the difference that geographic context makes. (I note this oversight, even as she references one of her earlier stories about rural restructuring, featuring the closure of a lumber mill in Aberdeen, Washington, in micropolitan Grays Harbor County). 

In any event, this entire story is worth a listen, not only for what it (and the rest of the week-long series) reveals about the disability phenomenon, but for what it reveals about various aspects of rural disadvantage, most specifically education levels and job markets.

I have noted elsewhere that courts considering applications for benefits such as unemployment sometimes expect claimants to move from rural to urban areas because they are more likely to be employable in the latter.  Some cases adjudicating this and related issues include Parsons v. Employment Sec. Comm’n, 379 P.2d 57, 59, 61 (N.M. 1963) (finding that if no “labor market” exists for petitioner’s job skills in rural area, she may collect unemployment and is not required to move to an area with more work opportunities) and Mohler v. Department of Labor et al., 97 N.E.2d 762 (Ill. 1951) (holding that several elderly women in rural Illinois were not "available for employment" as required by the state's unemployment benefits scheme; court found women "detached from the labor market ... because there are no labor opportunities where they reside, but in addition there are no transportation facilities to a place of employment where opportunities exist"; the women had previously worked at a cannery in their town, but only seasonally because the cannery operated only seasonally).

I wonder if judges adjudicating claims for federal disability ever go down the path of holding the limited nature of an applicant's labor market against the applicant, implying that s/he should move to where jobs are available.  I have not seen that in a case yet ... but then I haven't gone looking for it either.

Another story linking drunk driving to rural living

I covered this story out of Montana last spring, and now a similar story has appeared in the New York Times, dateline Kilgarvan, Ireland.  Douglas Dalby reports from County Kerry that it "became the center of an international media frenzy this winter when the local council voted to legalize drunken driving."  Dalby then clarifies:

What the Kerry County Council actually did was to pass a motion calling for people who live in country areas to be allowed to have a few beers before driving home. 

The measure was proposed by Danny Healy-Rae, a local pub owner and politician, with an eye to addressing two issues at once: the decline of pub culture and the isolation of rural life, particularly for older residents. 

Mr. Healy-Rae’s motion called on the minister for justice to allow the police the discretion “to issue permits to people living in rural isolated areas to allow them to drive home from their nearest pub after having two or three drinks on little-used roads driving at very low speeds.” 

He argued that this would help combat isolation and even lower the risk of suicide.

Dalby quotes Healy-Rae's further clarification:

I am talking about mainly elderly people who live in very remote places who come to town to get a bit of shopping, enjoy a couple of pints and a chat with friends and then drive home at less than 30 miles an hour. ... These are not the ones causing accidents. What is the alternative for them where no public or other transport is available? Staying at home lonely, staring at the four walls?

Another member of the Kerry County Council, Toireasa Ferris, indicated that she, too, saw rural isolation as a serious issue. She did not, however, agree that this measure was the appropriate solution.  Dalby quotes her:

This is not the way to address this problem. Some in an older generation who were used to having a few pints and driving home may still think it acceptable, and they may be lost to us. But we have to break the link between socializing and drinking for the generations following.

Law and Order in the Ozarks (CXIV): Criminal cases dismissed

The March 13, 2013 issue of the Newton County Times features two front-page headlines about criminal law and law enforcement.  The first is "Criminal cases dismissed" and the second, below the fold, is "Slape: Sheriff's Office operating day to day."

The first is the typical log of the disposition of various criminal matters.  Of some interest are the following:

• John William Bass, 46, faced numerous charges stemming from a routine traffic stop in September, 2007.  Those included possession of a controlled substance (methamphetamine); possession of drug paraphernalia; battery in the second degree; resisting arrest; driving on a suspended license; fleeing on foot; obstructing governmental operations; failure to pay regisrtation fee; driving left of center; no proof of liability insurance; no seat belt; no turn signal; DWI, drugs and "being a habitual offender."  A bench warrant was issued for his arrest in January, 2008.  Because Bass resided in Missouri, he had to be extradited to Newton County, where charges were formally filed only in February, 2013.  In spite of the laundry list of offenses and the five year wait, the court docket indicates that a motion to dismiss the case has been granted. 
• Preston Lee Campbell, 50, was charged with second degree battery for allegedly cutting a man on the neck with a utility knife.  Campbell was reportedly responding to something the man said about Campbell's deceased sister.  A jury trial was scheduled for February 8, but the state's motion to dismiss the matter was granted.
• Ryan Lessley Campbell was charged with "various domestic related charges" including theft of property, domestic battery in the third degree, four counts of aggravated assault, two counts of endangering the welfare of a minor, and criminal mischief.  Court records include a hand-written statement from the victim asking that the charges be dropped.  The judge granted the victim's request. 
• Donnie Kolb, 48, and Sheila Kolb, 50, both of Marble Falls, were charged in Nov. 2011 as co-defendants along with another individual and with manufacturing a controlled substance, marijuana, and with possession of a firearm.  The contraband was discovered when officers arrived to conduct a parole visit with the third person, who was living in the Kolb home.  The officers saw two marijuana plants growing in plain view, "next to a mowed area."  The firearms were found hanging on a wall in the bedroom the couple shared.  The state moved on Feb. 19 to dismiss the charges against the Kolbs because the third co-defendant had admitted his culpability in the commission of these crimes.  
• Buddy Truelove, 45, of Jasper was charged in Nov., 2011, with possession of a controlled substance, methamphetamine, and with possession of drug paraphernalia.  The charges stem from incidents on April 7, 2011, when law enforcement officers and a bondsman went to Truelove's residence to pick him up on a warrant.  Officers found two spoons, one with suspected meth residue and the other with suspected "meth rock" on it.  The officers found a smoking pipe in Truelove's pants.  They also found a light bulb that had been broken and cut to be used as a smoking device; it contained a residue believed to be meth.  The officers also took a bag containing five syringes.  Truelove subsequently entered a guilty plea and was sentenced to a year of probation and a suspended imposition of sentence.  He was find $1000 and ordered to pay court costs.      
• Roger Campbell, 51, of Hasty, was charged in June, 2011, with forgery in the first degree.  Campbell later pleaded no contest and was given a sentence of 8 years in the Arkansas Dept. of Corrections, followed by a two-year suspended sentence.  He must pay $550 in restitution in addition to court costs. The sentence will run concurrent with other cases against Campbell in Newton and Boone counties.  

The second story, about the Sheriff's Department, is hardly news.  I have reported previously on the difficult circumstances under which the office is operating, specifically with warrants not being served since the county has no jail in which to house prisoners and it must pay neighboring counties when inmates must be housed.  Here's an excerpt from the story:

Sheriff Keith Slape said his main concern is his aging fleet of patrol vehicles, the newest of which has 92,000 miles on its odometer.  Last year the sheriff was able to lease two used parol cars from Washington County.   

In addition to the costs of keeping vehicles on the road mechanically, there is the continuing rise in the cost of fuel, he lamented. 

The county has been experiencing a rash of break-ins and in particular the theft of recyclable metals, the sheriff said.  One tool in fighting this type of crime are surveillance camera, primary [sic] the outdoor type used to spot game animals.  This has been one security measure property owners have employed that has helped people.   

Similar surveillance methods were put to use last year when there were a number of suspected arson fires that destroyed older and unoccupied houses.  While there were not any arrests made in those investigations, some suspects were identified and the fires stopped occurring, Slape said.  

Related stories are here and here.

Liking the idea of liking the countryside

“It’s very pretty and suits urban people who don’t particularly like the countryside but like the idea of liking it,” James Hanning, a co-author of “Cameron: Practically a Conservative,” said of the Cotswolds, the hills that include Chipping Norton.

That quote is from Amy Chozick's piece in today's New York Times about Chipping Norton in Oxfordshire, the area that includes David Cameron's constituency in Witney.  Chozick begins her piece, which appears in the Fashion & Style section, with this:

The power centers of British politics and media may reside in London, but their tentacles extend to a tiny working-class market town with rows of glistening stone buildings, 17th-century pubs and a medieval church. 

This politically conservative Tory stronghold in rural Oxfordshire, with its green hills dotted with sheep and cottages with slate roofs, is in some ways London’s amped-up version of the Hamptons — if President Obama, David Axelrod and Rupert Murdochwere neighbors and went horseback riding and ate suppers together.

Chozick also quotes Alastair Campbell, communications director for former (Labour Party) Prime Minister Tony Blair:

If you go to Chipping Norton, there are farm laborers and miners. But if you really breathe in the essence of the place, it’s what you imagine David Cameron being.

I don't think of the Hamptons as rural, but this story reminds me of the ways in which rich Americans consume the countryside--at least certain amenity-rich segments of it--as in New England and the West.  They seem often to be attracted to a faux rural, one with picturesque main streets associated with rural gentrification .... but without, ahem, some of the downsides of agriculture and "unenlightened" neighbors.  I am reminded of this quote from a 1991 Maryland case, County Commissioners of Carroll County v. Zent:

Circumstances which are accepted as natural and normal incidents of a rural society by those who are nurtured by an agrarian environment do not always match the expectations of bucolic life anticipated by suburbanites as they move out to the countryside. While new residents may well expect, and accept, vistas of fields of waving grain, pastural [sic] scenes of dairy cattle on the hillside and the rustic ambiance of the pond and wetlands area in the meadows, they sometimes belatedly discover that the plow precedes the grain, manure accompanies the cattle, mosquitoes infest the ponds, and the products of the fields and animal husbandry must go to market.

587 A2d 1205 (Md. Ct. of Special Appeals 1991).  At issue in the case was rural residents’ operation of a junkyard, contrary to zoning laws, which the court held legal as a long-standing, non-conforming use.

This set who "like the idea of liking the countryside" have been called "nouveaux rustiques" by Brian Donahue (2001).  They also remind me of the work of Greg Fulkerson and colleagues at SUNY Oneonta who have written of the rural simulacra, using nearby Cooperstown, New York as an illustration.  See more here and here.

CAFO approved after use of dodgy notice procedure

I wrote a couple of weeks ago about the State of Arkansas's approval of a CAFO (Concentrated Animal Feeding Operation) in the Buffalo National River watershed--an approval that came after notice of the permit application was made only in the state-wide paper, the Arkansas Democrat-Gazette, but not in either the Newton County Times or the Harrison Daily Times, the latter two papers having far greater circulation in the relevant area:  Newton County.

I have since had an opportunity to review the relevant Arkansas law on notice.  Arkansas Code Section   8-4-203, under the Water and Air Pollution Control Act and labeled "Permits generally."  It states in relevant part:

(d)(1) When an application for the issuance of a new permit or a major modification of an existing permit is filed with the department, the department shall cause notice of the application to be published in a newspaper of general circulation in the county in which the proposed facility is to be located.

While I have been unable to find any case interpreting "newspaper of general circulation in the county," a Westlaw search of Arkansas case law reveals that many sections of the Arkansas Code use similar language regarding necessary notice, whether the issue is selling foreclosed property or the annexation of land into a city.  Regarding the latter, the relevant statute, Arkansas Code Section 19-101, prescribes the following notice after a city votes to annex land:    

and thereupon the petitioners or their agent shall cause a notice to be published in some newspaper of general circulation in the county, not less than three (3) consecutive weeks; and, if there be no newspaper of general circulation in the county, a notice shall be posted at some public place within the limits of said proposed incorporated town for at least three (3) weeks before the time of such hearing which notice shall contain the substance of said petition, and state the time and place appointed for the hearing thereof.’

This law provides an alternative for the situation when there is no newspaper of general circulation in a county:  another form of local notice. Just holding out the very possibility that there might be no such newspaper of general circulation in a county implies that a statewide newspaper, such as the Arkansas Democrat-Gazette, will not satisfy the requirement of a newspaper of general circulation in a county.   This is because it is extremely unlikely that there would be no such state newspaper to satisfy the requirement of a "newspaper of general circulation in the county," if in fact a statewide newspaper would do the trick.  Further, the statute is instructive regarding what notice is adequate if that newspaper of general circulation is lacking:  the notice must be posted "at some public place within the limits of said proposed incorporated town."  In other words, notice must be local. Posting the notice in Little Rock, for example, would not be sufficient when the land being annexed is in Crossett.  (See City of Crossett v. Anthony, 250 Ark. 660 (1971)).  In a 2001 case, notice regarding a proposed annexation was provided under an apparent successor to Section 19-101, Arkansas Code Section 14-40-601 et seq.  That notice, related to property in Crittenden County, was provided in the local West Memphis-based Evening Times, not in the Arkansas Democrat-Gazette.  (City of Marion v. Guaranty Loan and Real Estate Co., 75 Ark. App. 427 (2001)).

In the foreclosure context, Arkansas Code Section 18-49-104 (Supp. 1997) stipulates:  

(c)(1) The mortgagee, trustee, or vendor shall publish a notice of the sale in a newspaper published and having a general circulation in the county in which the property is situated or, if this is not available, then in a newspaper of general statewide daily publication one (1) time.

This statute also suggests that notice in a newspaper "having general circulation the county" requires notice in a local paper.  After all, it contrasts the "newspaper published and having a general circulation in the county" with a less desirable option if such a paper is not available:  "a newspaper of general statewide daily publication."  The latter would be the Arkansas Democrat-Gazette.  

All of these statutes refer to "newspaper of general circulation in the county," stipulating "county" and thereby implying that notice in a statewide newspaper is not adequate. Whether read individually or collectively, these provisions suggest that the Arkansas environment code notice provision required meaningful notice in Newton County, to Newton County residents.  Surely no in the Arkansas Department of Environmental Quality in Little Rock thought notice in the Arkansas Democrat-Gazette would be meaningful or effective.    

Meanwhile, I would love to see the Newton County circulation stats on the Newton County Times vs. the Arkansas Democrat-Gazette.  Those challenging the CAFO permit for the Big Creek hog farm need to track down that information.  They also need to think carefully about the purpose of the notice provision:  presumably to provide notice to those who have a more direct stake in the process and its outcome.

I close with some other data about Newton County, to paint a picture of the socio-economic milieu where this is happening because I think that milieu sheds light on who these people are, as well as their sources of news and information.  Newton County is a persistent poverty county in the Arkansas Ozarks, with a population of about 8,000 and a poverty rate of 21.6%.  The median household income there is just under $30K, and the median value of an owner-occupied home is about $76,000.  Jobs are scarce, to say the least. 

News out of "rural" states

I have often objected to media labeling entire states "rural," but I couldn't help think in those terms upon seeing several recent news reports out of the Dakotas and Arkansas.  State legislatures in all of the states are making decisions that reflect what might be commonly thought of as "rural culture." Specifically, I am thinking about stasis, religion, and guns.

Both North Dakota and Arkansas have recently passed extremely restrictive abortion laws--laws that almost certainly run afoul of the U. S. Constitution.  In the case of North Dakota, which passed its law just yesterday, the law could ban abortions after just six weeks of gestation.  The law bans abortions after a fetal heart beat is detectable, and that mark is at about six weeks if a vaginal ultrasound is used.  To avoid the controversy related to the timing of fetal heartbeat, the new Arkansas law bans abortions after the 12-week mark and does not reference fetal heartbeat.  As for the South Dakota law, that state legislature recently authorized school employees to have guns, though the ultimate decision is left to the school district.

The NYTimes articles reporting on these laws tend to invoke rural culture in explaining their passage.  Regarding the South Dakota law, John Eligon writes:

South Dakota is a state with deep roots in hunting, where children start learning how to shoot BB guns when they are 8, skeet shoot with shotguns by age 14 and enter target shooting contests with .22-caliber semiautomatic rifles. 

“Our kids start hunting here when they’re preteens,” said Kevin Jensen, who supports the bill and is the vice president of the Canton School Board in South Dakota. “We know guns. We respect guns.”

The story about the Arkansas abortion law, which had been in the news for weeks when it finally passed, in part because the governor kept using his veto to stop it, has focused a great deal on the role of religion.  Here's an excerpt on the most recent story, focusing on Jason Rapert, the bill's sponsor:

Mr. Rapert, who runs an investment firm and a Christian missionary society, preached at local churches before the election, sometimes entertaining worshipers by playing “Amazing Grace” on his fiddle.

An earlier story about the Arkansas law closed with this, focusing on how these developments make Arkansas look on the national stage:

“It sets Arkansas back several decades in the eyes of the nation and the world,” said Rita Sklar, director of the American Civil Liberties Union of Arkansas. “It shows an utter disregard for women and their ability to make important personal decisions about their own reproductive health.”

 The story about the North Dakota law does not mention rural culture, but it does note how limited access to abortion already is in the state:

In 2011, according to state data, 1,247 abortions were performed in North Dakota. If the ban becomes law, more than 75 percent of the procedures could be outlawed, according to Elizabeth Nash, a state issues manager with the Guttmacher Institute in Washington, a research group that supports abortion rights.

I have done extensive analysis of abortion access in rural places here, also critiquing how the U.S. Supreme Court has viewed rural women in relation to abortion access.

For the record, using the U.S. Census Bureau definition, 45% of North Dakota's population is rural, while the figure for South Dakota is 48%, and the figure for Arkansas is 46%.

Small state=rural state?

Adam Liptak's lengthy feature in yesterday's New York Times is headlined "Smaller States Find Outsize Clout Growing in the Senate," but I'm not sure the story is really "news."  It's more of an update on the long-time argument that the structure of the U.S. Senate and the Electoral College give small states--a/k/a rural states, too much power.  Here are some relevant quotes:  

Behind the growth of the [small-state] advantage is an increase in population gap between large and small states, with large states adding many more people than small ones in the last half-century. There is a widening demographic split, too, with the larger states becoming more urban and liberal, and the smaller ones remaining rural and conservative, which lends a new significance to the disparity in their political power.

* * *

Beyond influencing government spending, these shifts generally benefit conservative causes and hurt liberal ones. When small states block or shape legislation backed by senators representing a majority of Americans, most of the senators on the winning side tend to be Republicans, because Republicans disproportionately live in small states and Democrats, especially African-Americans and Latinos, are more likely to live in large states like California, New York, Florida and Illinois. Among the nation’s five smallest states, only Vermont tilts liberal, while Alaska, Wyoming and the Dakotas have each voted Republican in every presidential electionsince 1968.

Liptak, in addition to discussing current proposals to curb small-state power, quotes Chief Justice Earl Warren's decision in Reynolds v. Sims (1964):

Legislators represent people, not trees or acres.  Legislators are elected by voters, not farms or cities or economic interests.

In that decision, the Court rejected Alabama's argument that state senators, like federal ones, could represent geographic areas with varying population sizes.  

Here is a link to a terrific graphic depicting the small-state advantage. 

 

Roadkill consumption laws as a reflection of rural culture

"Doubling back for roadkill" was the headline of a New York Times editorial this past week-end.  It began:

Squirrel gravy is such a delicacy in Appalachia that there is a RoadKill Cook-off each year in the hollows of West Virginia. Lawmakers in Montana get the drift. The lower house of the Montana Legislature recently approved a measure that would allow citizens to salvage fresh roadkill and take it home for dinner.

The editors go on to explain that the Montana vote was 95-to-3.  If the Montana senate agrees, Montana will join five other states (Florida, Colorado, Georgia, Illinois and West Virginia) which permit the salvaging of roadkill under relevant health and safety regulations.  The editorial features some rich detail, including this quote from the Montana state trooper/legislator, Steve Lavin, who introduced the bill:

There's a lot of good meat being wasted out there.  

The editorial estimates that 6,000 deer were killed by vehicles in Montana (not to mention about 500 elk, moose, antelope, bears and mountain lions) in 2011, and it ends with this blurb about a Durango, Colorado "lawyer, hunter and roadkill connoisseur," Matt Kenna, who spoke to Bloomberg News for their recent story about these roadkill laws. Kenna says he  

carries game-dressing equipment in his car and takes home about $1,800 worth of fresh meat each year. His favorite roadside treat, he said, is elk steak marinated in Italian dressing.

The Bloomberg story, which is quite lengthy and detailed, notes that, in many states--even where the practice of salvaging road kill is not legally sanctioned--law enforcement officers often invite food banks to pick up the animals if, that is, they don't offer it to the folks who turned it into roadkill.   

I'm not clear on the extent to which the Times editors are poking fun at the practice of salvaging roadkill, but another roadkill story from 1999, dateline Nashville, Tennessee, played up the laws' potential for humor. The story, "Statehouse Journal; A Road-Kill Proposal is Food for Jokesters" begins:

If only the bill had contained the word ''deer,'' then perhaps the possum jokes could have been stopped flat. If the bill had just made it clear that someone who hits a deer on the highway can take home the carcass and eat it, then maybe Tennessee would have been spared all the raccoon cookbooks, the dead-skunk songs, the bumper stickers, the sniggering headlines, the laughter that has lighted up the Legislature for the last few weeks. 

But no. With an unerring genius for the kind of thing that makes many Tennesseans squirm, the author of the bill decided to phrase it this way: ''Wild animals accidentally killed by a motor vehicle may be possessed by any person for personal use and consumption.''

Sarcasm or the lack thereof aside, one thing seems clear from this week-end's editorial:  Saturday must have been a very slow news day.  

Call for Papers: ClassCrits VI

The 2013 ClassCrits meeting will be at Southwestern Law School in Los Angeles, November 15-16. The deadline for abstracts and panel proposals is fast approaching: March 20, 2013.

The call follows, and you can get more details here. Send proposals to classcrits@gmail.com.

The theme of this year’s workshop--the sixth meeting of ClassCrits--is debt, austerity and the possibilities of the political. The economic crisis of 2008 was a referendum on the failures of deregulation and neoliberal ideology all over the world. Far from being a sophisticated mechanism to absorb and diffuse systemic economic risk, the crisis exposed a fragile global financial system characterized by dysfunctional imbalances of increasingly precarious and largely unregulated risk societies. In the United States, the social contract of class mobility and the “American Dream” financed with “easy” credit was exposed as an empty promise. In the European context, the sovereign debt crisis resulted in the imposition of draconian austerity measures in several nation-states, like Greece, undermining social safety nets and wage structures, rupturing traditional alliances, and driving down individual standards of living. At the same time, the Occupy Movement—and similar movements across the globe—refocused attention on socio-economic inequality for the first time in decades. The old ways of seeing things proved inadequate for framing the changing realities of the new post-recession world. But whatever the initial shock to the social order, political and financial elites everywhere have since doubled down on the failed neoliberal project with a mania for balancing budgets in the name of discredited austerity policies which have only accelerated neoliberalism’s upward transfer and concentration of wealth and intensified the class stratification in contemporary global societies. Stuck in the grip of austerity groupthink and faced with nation states captured by elite interests─a trend only made worse in the United States by Citizens United─any movement forward will require creatively leveraging national political and legal systems as instruments for progressive economic change and deleveraging social class divides. 

What are the possibilities and alternatives for a genuinely progressive economic project in an age of resurgent neoliberal policies and politics, worldwide shifts in population and demographics, and hegemonic economics? How can we address the challenges of our age including, but not limited to: globalization; shifting power relationships between the developed world and formerly “third world” countries; massive intergenerational and upward transfers of wealth; abject poverty; staggering debt; wage stagnation; a declining middle class; an increasingly dysfunctional food system; and environmental and climate risks that will require concerted national and international efforts. Stuck in Forward? Debt, Austerity and the Possibilities of the Political will address these questions by bringing together scholars, economists, activists, policymakers, and others to critically examine and take stock of who wins, who loses, how the law facilitates the hierarchical and spatial distribution of winners and losers, and how we may use law and politics to develop both real and utopian interstitial spaces of classlessness within the new post-recession global order.

State and fed officials tangle over industrial hog farm in Buffalo National River watershed

In August, 2012, the Arkansas Department of Environmental Quality (ADEQ) approved a 670-acre, 6,500 hog farm along a tributary of Big Creek, just five miles from the Buffalo National River (BNR)--and it did so without input from the National Park Service.  Now, according to the Feb. 27, 2013, issue of the Newton County Times, the Park Service has joined local conservation groups in objecting to the corporate farm, which is locally owned but will operate under a contract with Cargill.

Big Creek Valley, Newton County, Arkansas, area
of proposed industrial farm.  April, 2011.

Officials with the National Park Service say they didn't learn about the plan until after the permit was issued last August.  The Times quotes Buffalo National River superintendent Kevin Cheri,

We are key stakeholders in any decision.  ... We didn't find out until the permit had been taken out and a loan given for the farming operation. ... Why didn't they notify the first national river about this?  We're only five miles from the facility.  

Cheri reported that his agency learned of the proposed farm when local property owners and members of the Ozark Society asked his office about it.  The paper further quotes Cheri:

We're behind the curve and trying to get more information ... so we can articulate our concerns, and take it to the next level, if that is what is needed.  We want to be assured this is not going to cause any contamination of water and affect public health.

What I find shocking about how ADEQ handled this matter is that they published public notices of hearings about the farm only in the Arkansas Democrat-Gazette, in February and April of 2012.  ADEQ did not publish any notices in either the Newton County Times or the newspaper for neighboring Boone County.  I would guess that the number of Newton County residents who regularly read the Arkansas Democrat-Gazette is very low.  (See more about Newton County demographics here; 79% are high school graduates and only 12% have a bachelor's degree or more).  ADEQ reports that it held six public meetings received comments from 13 individuals, organizations and corporations.  It does not specify, however, whether any of those offering comment were residents of Newton County, or of neighboring Searcy County, which the Buffalo River runs through not far downstream from Big Creek.

The plan that ADEQ approved includes two "shallow-pit confinement barns" and "collecting states [sic] in two story ponds, then spreading it on a 670-acre farm." The Ozark Society, which reviewed the permit, reports that it approves "17 separate hog waste application fields, 11 of these [  ] adjacent to Big Creek."  The permit specifies:

a buffer zone of approximately 100 feet between Big Creek and the hog waste application fields.  The facility's treatment facility consists of in house shallow pits with a capacity of 759,542 gallons, a settling basin with capacity of 831,193 gallons and a holding pond with capacity of 1,904,730. 

This amounts to 2,090,181 gallons of manure, litter and wastewater generated per year.  This is approximately 5,727 gallons per day spread on fields (630.7 acres).  On average, 9.1 gallons per day would be spread on each acre or 75 pounds per day per acre. 

The permit does not allow discharge of the waste, but rather it must be applied to the owner's fields.  If an overflow occurs, the permittee must test the pond, but has 30 days in which to report the overflow and likely run-off.  All of the fields and facilities are above the 100 year flood level.  The fields will be used for hay and pasture.    

The permit states that "land application areas will receive application at rates consistent with infiltration capabilities of the native soil so that there is no runoff."

Buffalo National River near Ponca

The Ozark Society stated on its website that it "has no desire for this farmer to lose the right to develop his land" and noted that he has operated a successful hog farm near Jasper for a decade with no citations or permit violations.  Nevertheless, the Society asserted that "the water quality of our rivers is at stake" and that it ADEQ should have the "long-term goal" of "deny[ing] permits for any animal or poultry factory farms in the watersheds of major rivers and streams, especially the Buffalo National River, our first National River and a designated Extraordinary Resource Water stream." The website notes the "significant economic issue" given that the BNR "attracts more than a million visitors each year, contributing millions of dollars to the economy of Arkansas."

At the end of its story, the Newton County Times notes that one of the farm's co-owners and its vice president, Richard Campbell, is a justice of the peace/member of the Newton County Quorum Court (the Arkansas equivalent of a Board of Supervisors).  The Newton County Wildlife Association, which also opposes the factory farm, has suggested that the Quorum Court consider this controversy.

No timeline for the opening of the farm is indicated, though the story makes a mention of the farm seeking funding, presumably for start-up costs.

The feminization of farming

That is the title of Professor Olivier De Schutter's op-ed in the New York Times today, but it reminds me of another catchy (if depressing) phrase feminists coined a few decades ago:  the feminization of poverty.

As it turns out, De Schutter, the UN special rapporteur on the the right to food, brings together issues of gender equality and food security in his op-ed in a way that shows the link of both to, you guessed it, poverty.  As most of us know, women are more likely than men to be living in poverty, wherever they are in the world.  Turns out, according to De Shutter, as women get more and more responsibility for growing food in the developing world--partly as a result of male migration for work--women's poverty and hunger, along with that of their families, is exacerbated, not eliminated.

Specifically, De Schutter discusses a report released today to the United Nations Human Rights Council in which he calls for a "comprehensive, rights-based approach focused on removing legal discrimination and on improving public services — child care, water supplies, sanitation and energy sources — to reduce the burden on women who farm."

Noting women's increasing roles "on the front lines of the fight to sustain family farms," De Schutter asserts that gender discrimination and stereotyping lead to pervasive discrimination against women, hindering their ability to overcome poverty and hunger.  Some manifestations of this discrimination "den[y] small-scale female farmers the same access men have to fertilizer, seeds, credit membership in cooperatives and unions, and technical assistance."  Just as problematic, if not more so according to De Schutter, are the burdens associated with traditional gender roles that leave women expected to do "unremunerated household chores like cooking, cleaning, fetching water, collecting firewood and caring for the very young and the elderly." De Schutter notes that these activities are the equivalent "to as much as 63 percent of gross domestic product in India and Tanzania," and that these endless tasks  keep women from having the time they need to "attend classes, travel to markets to sell produce or do other activities to improve their economic prospects."

De Schutter provides success stories from Bangladesh, the Philippines and China, all about programs that look at first blush unrelated to farming.  These programs have, among other things, provided obstetric and other health services, educated women about domestic violence, enhanced education for children, supplied clean water and latrines, and employed women on rural road maintenance crews.  Yet as apparently unrelated to farming as these programs are, all of these have had the knock on effect of enhancing women's farm productivity and helping to alleviate hunger.

De Schutter does not mention the role that CEDAW--which includes specific rights for rural women--can play in all of this, but that is a topic I have written about extensively here, here, and here.  This article is about empowerment of India's rural populations in particular.

Kudos to De Schutter--and the United Nations--for seeing food security as part of a much wider web that implicates women's and children's agency and well-being.  

Cross-posted to Agricultural Law Blog.

Medicaid expansion critical for rural Nebraskans

Before discussing the proposed legislation in Nebraska, it might help to know a little background regarding the Patient Protection and Affordable Care Act (known better as the Affordable Care Act, ACA, or Obamacare).  The Affordable Care Act is a 700 page tomb that is unbearably difficult to understand. The subsequent litigation around it makes it even more difficult. Last year, the Supreme Court found most of the Affordable Care Act constitutional in the landmark case National Federation of Independent Business (NFIB) v. Sebelius. Note that I said most of the ACA was upheld, not all. The intracies of the ruling confused even news organizations such as CNN and Fox.  The one portion of the health care reform was struck down was federal government’s role in cutting states’ Medicaid funds. Chief Justice John Roberts said as part of the 5-4 decision that states can't be penalized for refusing to join the law's expansion of Medicaid eligibility.  The federal government will initially cover all the expenses for the expanded coverage, until ultimately cutting back to 90 percent. The would mean states would have to cover the extra 10 percent. The ruling allows states to decline to do so.

Enter Nebraska legislation LB577. Nebraska lawmakers have proposed the legislation to expand Medicaid coverage as part of federal health care law.  The bill is said to extend coverage to more than 54,000 uninsured Nebraskans. Without the expansion, individuals who make too much to be covered by Medicaid, but cannot afford the insurance offered in the market place will be left out in the cold. However, that 10% additional cost is more than some Nebraskans are unwilling to take on. Governor Dave Heineman and other opponents have argued that the plan is simply unaffordable.

Expansion of Medicaid is crucial for rural Nebraskans. Nebraska’s rural counties have lower health insurance coverage rates than more urban counties for residents under 65 and most recent Census Bureau data show that Nebraska’s rural counties have a 15.5 percent uninsured rate, higher than any other county type in the state. As county population decreases uninsured rates increase. Counties with “high” uninsured rates (21 percent or greater) exist only in non-metropolitan (rural) Nebraska.

The bill is also important for the rural Nebraska’s health-care infrastructure. Medicaid is a crucial source of revenue for rural physicians, hospitals, and long-term care providers. But a rural health insurance market that leaves more rural people without insurance or without adequate insurance also leaves rural providers without payment for the services provided to many of their patient.

While the cost may be difficult in the short-term, it is likely to be cost-effective in the long term. After all, those individuals will continue to live in your state. As opposed to getting preventative care and managed care, they will getting sicker and ultimately increase the cost to manage their illness. Further, they are going to utilize emergency rooms, which are both costly and already overcrowded.   Either way, the state will have to pay for it. It is hard to see how a state would say thanks but no thanks to the Medicaid expansion option. Not only do you get a significant amount of federal aid, but you are able to help your residents live healthy lives, bolster medical infrastructure, minimize long-term costs, AND help vulnerable rural communities. It seems like a foolish option to leave on the table.

Bloody Sunday: the Supreme Court's ahistorical approach to voting rights

March 3rd marks the anniversary of “Bloody Sunday,” the date in 1965 on which proponents of voting rights marched from Selma, Alabama towards Montgomery, in protest of the recent killing of a voting rights activist by an Alabama State Trooper. The marchers were then beaten and teargassed by police.

Five months later, the Voting Rights Act of 1965 was passed. Section Five of the Act requires that states and some municipalities with a history of discrimination in voting rights get “pre-clearance” from the Department of Justice prior to enacting any change affecting citizens' voting rights. This means that potential infringement on minority’s voting rights are curbed before the harm occurs. The burden is on the state entity to disprove infringement, rather than on the individuals to seek remedy afterwards.

That section is now being challenged in the Supreme Court, in Shelby County v. Holder. To hear the conservative Justices question Donald Verrilli, the solicitor general defending the law in Wednesay’s oral arguments, Section 5 is archaic and discounts the progress made in the arena of racial justice. Although Congress reapproved this law in 2006, the conservative half (+1) of the Court pressed hard on what they saw as the inadequacy of the evidence supporting an ongoing need for this act.

In an editorial published today by Washington Post columnist George F. Will, a similar strain is heard: the election of Barack Obama and his capture of a larger percentage of the white vote than either John Kerry or Al Gore, plus the sheer number of black elected officials in Mississippi, tell the true story of racial equality in voting rights in this country. He scorns progressives for being "remarkably uninterested in progress" (citing Medicare as an example of a similar rigidity). Frank C. Ellis, attorney for Shelby County, has said: "I think we’ve proven that the south has changed. We’re not the same South we were in 1964; we don’t have the blatant discrimination that we had in 1964."

But the insistence that racial equality has rendered excessive Section Five’s dictate that the state, not individuals, bear the responsibility for disproving a presumption of racial impact of voting laws, is undermined by ample evidence: attempts to restrict the rights of minority voters have ramped up, not down, in recent years. The Brennan Center for Justice in 2012 released a large scale voting rights report detailing the disparate impact on minority groups by various states’ voter ID laws.

The voter ID laws require documents which one in ten eligible voters do not have. The Brennan Center’s report focuses on the prohibitive difficulty faced by voters in poor and rural (often both) areas in obtaining the required documents.

In the real world, poor voters find shuttered offices, long drives without cars, and with spotty or no bus service, and sometimes prohibitive costs. For these Americans, the promise of our democracy is tangibly distant. It can be measured in miles.

In Alabama, Mississippi and and Georgia, “in the areas with the greatest concentrations of rural black voters, no state driver’s license offices are open more than two days per week…. [M]any of these states’ part-time offices are located in the areas with the highest concentrations of black voters.” In Texas, areas “with high concentrations of Hispanic voters, [have] few or no ID-issuing offices.” All four of these states are currently subject to the pre-clearance requirement under the Voting Rights Act.



In Calera, Alabama (in Shelby County), Councilman Ernest Montgomery serves as the only black Council member. In recent years, he watched as the city of Calera redrew his district, severely reducing the black vote. Per Section 5, the DOJ intervened, the redistricting was blocked, and Councilman Montgomery was reelected. It has been pointed out in recent days, too, that the Hispanic population of Shelby County has increased by nearly 150% since the last Census.

To define the progress of voting rights through the narrow lens of the number of black officials, or the access to that office by a single black man, is to deny the adaptive skill of those seeking to suppress voting rights. Shelby County’s history makes its actions in the realm of voting rights presumptively suspect – and this should include the very legal challenge the Court now addresses. The hope of the petitioners in Shelby County v. Holder is to dismantle the most protective portion of the Act. The recent redistricting should not be divorced from the history of black voter suppression; and nor should Shelby County v. Holder be considered as apart from the recent slew of restrictive voter ID laws. It is another tactic in the larger battle, and should be treated skeptically.

Far-flung and near: the Arctic and climate change

In the last issue of the New York Review of Books, Ian Frazier reviews Subhankar Banerjee’s anthology Arctic Voices: Resistance at the Tipping Point. Banerjee is a photographer and activist who has been recording the changing Arctic for the past decade or so.  Arctic Voices is an anthology composed of writing and photography documenting climate change and fossil fuel exploitation in the Arctic. 

The Arctic is a particular place of interest, because like the rural, it tends to exist outside of our everyday mainframe.  It seems that the Arctic is not only spatially isolated, but temporality is experienced differently as well, the lived experience there is appropriate for the longue duree.  NYRB contributor Ian Frazier quotes environmentalist and activist Bill McKibben describing the Arctic environment as nestled “deep in geological time.”

The Arctic is a site for exploitation of fossil fuels and rare minerals, and so, despite its far-flung positionality, the harms experienced by Arctic peoples directly implicates the larger political economy surrounding extractive industries and energy production.  The particular industry of resource extraction concerns all of us, the cost and question of energy pervades so much of our everyday life, and must be contended with, brought into our everyday consciousness. 

I have been thinking a lot about the Arctic. Not only do residents of the Arctic directly experience the negative externalities that coincide with fossil fuel and mineral extraction, the Arctic is now warming at twice the rate as the rest of the world. The paradox of the Arctic is this: due to their traditional lifeways, native Arctic communities  do not consume energy as ravenously as compared to the average city dweller, let's say, and so by extension, their carbon footprint is much lighter than modern societies.  And yet, and yet, they are experiencing warming at twice the rate as the rest of the world. 

In the age of climate change where it is difficult to experience the “impact” of climate change as specific discrete events, despite Hurricane Sandy, despite record droughts, despite 2012 being the hottest year in US history, despite warnings from some of the leading scientists of our time that going forward with the regulatory status quo will quite literally lead to apocalyptic disaster, we must cast our attention to the most far-flung, least considered spaces.  Because there, in the Arctic, for example, we witness the most rapid effects of climate change occurring in real time, with real consequences, and real harms, to the most vulnerable populations. 

Kivalina v. ExxonMobil, a case recently decided before the Ninth Circuit, articulates the harm experienced by a traditional Inupiat village located on the tip of a barrier reef on the Chukchi Sea in Alaska.  Due to increasing coastal erosion and melting sea ice, the Native Village of Kivalina will have to be relocated from their ancestral home at the cost of anywhere between $95 million to $400 million. The language of law is instructive.  The Government Accountability Office calls it relocation.  The Ninth Circuit ruled that Kivalina’s claim is precluded by federal regulatory displacement of common law claims.  I like this word displacement, some ironic catachresis. It highlights the disjuncture, this gap between legal language and the descriptive language of what is actually occurring in Kivalina: because common law claims are being displaced by federal regulations, the residents of Kivalina’s actual physical displacement from their land cannot be redressed by the court. 

Consider some other descriptive possibilities: rootshock and genocide.  I have been thinking a lot about the Arctic.  Give a thing a name and find the law to let the narrative develop or give a thing a name and find the law to squash it.  Welcome to the Anthropocene age, welcome to climate change and the law.