Kautzman’s AP GO PO Blog

Kempthorne seeks compatibility with state laws

Richard Simon and Judy Pasternak
Los Angeles Times
February 23, 2008

WASHINGTON – In a victory for gun rights advocates, the federal government is preparing to relax a decades-old ban on loaded firearms in national parks.

Interior Secretary Dirk Kempthorne said Friday his department would suggest new regulations by the end of April that could bring federal rules into line with state laws concerning guns in parks and public lands. His announcement came in a letter to 51 senators who have written to him about the issue. A near majority of the Senate, including Democrats and Republicans from Western states, has backed a drive to repeal the ban, which has been in place in some parks for 100 years.

The proposed rule change might let visitors carry loaded weapons into national parks in states with few gun restrictions, such as Montana.

Gun rights advocates, notably the National Rifle Association, have said the ban infringes on their Second Amendment right to bear arms and their ability to defend themselves from predators, human and animal.

“If you’re hiking in the backcountry and there is a problem with a criminal or an aggressive animal, there’s no 911 box where you can call police and have a 60-second response time,” said Gary Marbut, president of the Montana Shooting Sports Association. “Here in Montana, we are very used to being able to provide for our own personal protection.”

Kempthorne’s decision to review the ban was hailed by the NRA. “This is an important step in the right direction,” said the organization’s chief lobbyist, Chris W. Cox.

On the other hand, the National Parks Conservation Association called Kempthorne’s action “alarming.” Tom Kiernan, the group’s president, said a loosening of the ban would be “a blow to the national parks and the 300 million visitors who enjoy them every year.”

His view is echoed by gun-control advocates and some rangers who say permitting firearms would be dangerous for visitors and wildlife and alter the national park experience.

“Parks have long been sanctuaries for both animals and people,” said Butch Farabee, a former acting superintendent at Montana’s Glacier National Park who is retired. “There need to be places in this country where people can feel secure without guns and know that the guy in the campground across the way does not have one.”

The federal government would not cede authority over firearms in national parks to the states, said Interior Department spokesman Chris Paolino, but would like to reflect the policies of host states. In drafting proposed new rules, Paolino said, the department also would take into consideration the ban on firearms in federal buildings.

“It’s important to note this is the beginning of the process,” Paolino added.

Weapons originally were prohibited in national parks to prevent “opportunistic poaching” of wildlife, said Frank Buono, a former assistant superintendent of California’s Joshua Tree National Park.

A 1908 Yellowstone National Park regulation, for example, required that visitors “having firearms, traps, nets, seines or explosives” surrender them at the entrance unless they received written permission from the park superintendent.

A similar policy was in effect at most parks for decades. Then the Reagan administration in 1983 required that visitors unload and store their firearms before entering most national parks.

Supporters of the repeal effort note that state gun laws currently apply to federal land managed by the Forest Service and the Bureau of Land Management, and they see no reason why that should not be the case in national parks and wildlife refuges.

So far, half the Senate seems to agree. Nine Democrats and 41 Republicans have signed letters to Kempthorne calling on him to lift the gun ban. “We do not believe that allowing law-abiding citizens to transport and carry firearms – rather than forcing them to disassemble or store them in their trunks – will increase the chances that they will be tempted to violate prohibitions on discharge,” one group of senators wrote.

Advocates believe it is, foremost, an issue of ending an unconstitutional infringement on their right to bear arms. But they also contend that park visitors are “increasingly vulnerable” to crime.

“While park rangers now use bullet-proof vests and automatic weapons to enforce the law, regular Americans in states where conceal-and-carry law exists are denied the opportunity for self-defense,” Coburn said in “talking points” distributed by his office.

The National Park Service says there were 116,588 reported offenses in national parks in 2006, the most recent year data are available, including 11 killings, 35 rapes or attempted rapes, 61 robberies, 16 kidnappings and 261 aggravated assaults.

Supporters also believe that gun owners should be able to protect themselves against dangerous animals, dismissing arguments that firearms would ruin the park experience.

Officials at Glacier – which recorded 10 deaths from grizzly bear attacks between 1967 and 1998 – said the last attack was in 2005, when a bear mauled two hikers. One of the victims, Johan Otter, of Escondido, Calif., said the idea that a gun could have stopped the 400-pound bear that charged him is naive. “We only had, like, half a second between seeing the bear and the impact,” Otter said.

Organizations that represent current and retired park workers oppose a repeal, saying it not only would endanger visitors, rangers and wildlife but would change the character of the parks.

Bill Wade, executive council chairman of the Coalition of National Park Service Retirees, said, “How many of you would want to go out there if you knew that people were running up and down the Appalachian Trail with guns?”

Candidates’ spending proposals aren’t matched by funding sources

Kevin G. Hall and Margaret Talev
McClatchy
February 24, 2008

HOUSTON – Hillary Clinton and Barack Obama champion fiscal responsibility on the campaign trail, but both Democratic presidential hopefuls are promising massive new spending without providing details on how they’d pay for it.

The nation already will face unprecedented fiscal challenges as the baby-boom generation – about 76 million Americans born from 1946 to 1964 – reaches retirement age and begins straining the federal budget as never before.

The federal budget deficit is projected to exceed $400 billion next year. Deficits are paid for by borrowing. The gross federal debt, the sum of what our government owes, is in the neighborhood of $9 trillion.

That means there’s less room to borrow to deal with the growing budget pressure as boomers retire.

By 2017, Social Security is expected to begin paying more out in benefits to retirees than it collects from workers. And the number of Medicare recipients will grow from 44 million last year to 58 million over the next decade.

Increased spending on health and welfare programs for the boomers will start to crowd out other federal spending. That’s why the two Democrats’ mounting campaign promises raise concern among budget experts, who aren’t hearing much about where the money would come from.

Clinton has proposed new spending in excess of $200 billion, much of it annual. Obama has surpassed her, promising annual spending of at least $210 billion.

Both have offered expensive plans to get to universal health-care coverage, either through incentives or by government mandate. They’ve proposed spending big money to help avert housing foreclosures nationwide and to help refinance mortgages for borrowers in trouble.

Both are counting on savings from reducing the U.S. presence in Iraq and rolling back some of President Bush’s tax cuts, which are scheduled to expire after 2010, to pay for their new programs. Both expect that expanded use of electronic health records and other advances in medical information technology will defray some of the cost of moving to a universal health-care system.

Neither, however, has proposed a fix for the biggest near-term strain on the federal budget, the alternative minimum tax, or explained how they propose to balance the cost of their campaign promises with the looming expense of the aging baby boomers.

During a speech Tuesday night in Houston, Obama rattled off a list of promises: lower insurance premiums for all families, subsidized premiums for those who can’t afford them, tax cuts for Americans who earn less than $75,000, no income tax for retirees who earn less than $50,000, inflation-linked increases in the minimum wage, a $4,000 tuition credit for every college student and unspecified investment in early childhood education, roads, buildings and hospitals.

To pay for it, he cited without specifics higher taxes on the wealthy and corporations, billions of dollars from “polluters” to pay for alternative energy and ending the Iraq war, which is costing an estimated $9 billion a month.

“We can invest that money in rebuilding roads and bridges and hospitals right here in Houston – building schools, laying broadband lines, putting people back to work, employing young men and women in our inner cities, in our rural communities,” he said to cheers.

That $9 billion in war spending, however, is largely borrowed money, much of it from China and Japan. If Obama intends to redirect war spending to domestic needs, it still would be deficit spending.

“That’s sort of a problem: switching priorities rather than fixing the budget problem,” said Robert Bixby, the executive director of the nonpartisan Concord Coalition, a budget watchdog organization. “I couldn’t help but think, ‘Where is he going to get the money to pay for these things?’ ”

And the U.S. military can’t just pack up, turn off the lights and head home. There’ll be a troop presence in Iraq for some years, and the nation will be paying to replace worn equipment and heal the bodies and minds of returning service members for years.

“It is getting a little bit discouraging that promises that are on the wrong side of the ledger … are starting to add up. It gets more and more difficult to see how any of the candidates can meet the full portfolio of promises” they’ve made, said Maya Macguineas, the president of the Committee for a Responsible Federal Budget, a bipartisan group that advocates balanced budgets.

The most obvious problem, which Clinton and Obama have acknowledged – but which neither has addressed – is the unpopular alternative minimum tax.

The AMT wasn’t indexed to inflation decades ago, when it was targeted at income levels then considered wealthy, so it now threatens to ensnare millions of American families with annual incomes of $75,000 to $200,000.

Abolishing it could cost the Treasury as much as $2 trillion over the next 10 years, just when the government will need more money to pay for programs for boomers. Expanding the AMT, however, could allow it to hit as many as 52 million taxpayers by 2018.

Neither choice is attractive, and because the tax still affects a limited number of Americans, the candidates can duck the issue.

“If you were to repeal the AMT, it would just add to the deficit. It is a serious problem, and none of the candidates is talking about it very seriously,” said Len Burman, the director of the Tax Policy Center, a policy-research group run jointly by the centrist Urban Institute and the center-left Brookings Institution.

New York senator says opponent sent false mailings

Sen. Hillary Clinton, D-N.Y., campaigns Saturday in Huber Heights, Ohio. Associated Press (Associated Press )

Perry Bacon Jr. and Alec Macgillis
Washington Post
February 24, 2008

HUBER HEIGHTS, Ohio – In perhaps her sharpest attack of the 2008 presidential campaign, Sen. Hillary Rodham Clinton accused her Democratic rival Saturday of “using tactics that are right out of Karl Rove’s playbook,” declaring at one point, “Shame on you, Barack Obama.”

Clinton’s comments represented a marked shift from just two days ago, when she and Obama engaged in a generally good-natured debate in Austin, Texas. The Illinois senator responded by noting “the sudden change in tone” and questioning Clinton’s timing, ahead of Sunday newspaper deadlines and with another debate three days away.

“It makes me think there’s something tactical about her getting so exercised this morning,” he said in Columbus, Ohio.

Clinton took strong exception to Obama mailings that criticized her views on health care and trade. Both mailings have been sent before by the Obama campaign, and her aides had expressed frustration about them, but the senator from New York had not previously addressed them in such a pointed way.

“I have to express my deep disappointment that he is continuing to send false and discredited mailings,” Clinton said, holding the fliers in her hand. “He says one thing in his speeches, and then he turns around and does this. It is not the new politics the speeches are about. It is not hopeful. It is destructive.”

She added, “Enough with the speeches and the big rallies and then using tactics right out of Karl Rove’s playbook. This is wrong, and every Democrat should be outraged. … Shame on you, Barack Obama.”

One mailing says that Clinton’s health care plan would force people to purchase insurance, even if they could not afford it. The other quotes a Newsday article that says Clinton regarded the North American Free Trade Agreement as a “boon” to the economy. The Long Island newspaper has acknowledged that was the word it chose to describe her view of the controversial agreement.

Obama defended the accuracy of the mailings, though he granted that it is “fair” to question that Clinton used the word “boon.” He said the mailing was produced before Newsday clarified that Clinton herself had not used the word.

But he added that the overall thrust of the publication stands.

“Senator Clinton, as part of the Clinton administration, supported NAFTA. In her book, she called it one of the administration’s successes,” he said. “We’re pointing that out in a state that’s been devastated by trade and is deeply concerned about the position of the candidates on trade.”

It is indisputable, Obama added, that Clinton’s plan would require people to buy health insurance even if they did not think they could afford it. She may not want the plan described that way, he said, just as he does not like her characterizing his plan, which does not include a mandate, as leaving out 15 million people.

“We have been subject to constant attack from the Clinton campaign except when we were down 20 points. They need to take a look at what they’ve been doing,” Obama said.

Clinton and Obama have agreed to a debate Tuesday in Cleveland, and Clinton hinted that she will use the opportunity to press her point.

“Meet me in Ohio, and let’s have a debate about your tactics and your behavior in this campaign,” she said.

It is estimated that Clinton’s health care plan would cover more people than Obama’s in part because it would require people to purchase insurance, although it stipulates that Americans would have to pay only a certain percentage of their income for health care costs. If government subsidies are large enough, Clinton’s plan is not likely to force people to pay excessive amounts for health care, although it is difficult to define what is “affordable.”

Clinton has sought to distance herself from NAFTA throughout the campaign. In Cincinnati, she said that George H.W. Bush’s administration, not Bill Clinton’s, had “negotiated” the agreement. But her husband was an enthusiastic backer of NAFTA in the 1990s, helping get it passed despite opposition from some Democrats in Congress. Obama’s campaign on Saturday put out a long list of statements from the 1990s in which Hillary Clinton expressed enthusiasm about NAFTA.

Obama has won 11 straight contests in the Democratic campaign, heading into March 4 primaries in four states, including Ohio and Texas.

Tugboats pull the crippled tanker Exxon Valdez toward Naked Island in Prince William Sound, Alaska, on April 5, 1989. Associated Press (File Associated Press )

Robert Barnes
Washington Post
February 24, 2008

WASHINGTON – When a federal jury in Alaska in 1994 ordered Exxon to pay $5 billion to thousands of people who had their lives disrupted by the massive Exxon Valdez oil spill, an appeal of the nation’s largest punitive damages award was inevitable.

But few could have predicted the incredible round of legal ping-pong that only this month lands at the Supreme Court.

In the time span of the battle – 14 years after the verdict, nearly two decades since the spill itself – claimants’ lawyers say there is a new statistic to add to the grim legacy of the disaster in Prince William Sound: Nearly 20 percent of the 33,000 fishermen, Native Alaskans, cannery workers and others who triumphed in court that day are dead.

“That’s the most upsetting thing, that more than 6,000 people have passed and this still isn’t finished,” said Mike Webber, a Native Alaskan artistic carver and former fisherman in the Prince William Sound community of Cordova. “Our sound is not healthy, and neither are the people. Everything is still on the surface, just as it was.”

“The bottom line,” said Tim Joyce, the mayor of Cordova, where half the town’s 2,400 full-time residents are parties to the suit, “is that there is still oil on the beaches. And this lawsuit still isn’t finished.”

The high court is scheduled to hear arguments Wednesday on whether punishment is excessive or even permitted under maritime law. The case, Exxon Shipping v. Baker, may turn, in the eyes of the justices, on a nearly 200-year-old precedent set when privateer ships sailed the oceans, or on the more recent provisions of the Clean Water Act.

An epic event
In Alaska, the lawsuit is seen as a test of justice and corporate responsibility, and its resolution is seen as critical to healing the scars left by an epic event that defines the state’s modern history, Republican Gov. Sarah Palin said in an interview.

“Every Alaskan life was affected by this,” said Palin, elected in 2006. “When I got in here, that was one of the first orders of business: to find out how in the world can this administration speak on behalf of all Alaskans who have been so adversely affected by this spill.”

Exxon officials contend that such sentiments ignore the facts of the case and note that the company already has spent more than $3.4 billion in compensation for losses, cleanup and fines.

“This case is about whether further punishment is warranted,” Exxon spokesman Tony Cudmore said. “We’ve spent $3.5 billion, which is a significant sum of money we think is adequate to deter anyone” from future wrongdoing.

But that figure no longer impresses Palin and others. When the jury awarded $5 billion in 1994, that represented a year of Exxon profits. An appeals court subsequently reduced the damages to $2.5 billion – “about three weeks of Exxon’s current net profits,” the plaintiffs told the Supreme Court in their brief.

“I’m a capitalist, I’m a conservative Republican, I am pro-development and pro-industry,” said Palin, who is herself a former commercial fisherman once party to the suit. “But consider what Exxon has made in terms of profits in all these years. The American judicial system came down with this judgment, and they’ve appealed and they’ve appealed and they’ve appealed.”

The award has been reviewed three times by a district judge and twice by the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, with more than four years elapsing between one appeal and a decision.

“It’s a scandal how long it’s gone on,” said David Lebedoff, a Minneapolis lawyer and author who wrote a book about the five-month trial that led to the punitive damages award. He blames the 9th Circuit for not moving faster. “It’s absolutely inexcusable.”

PR, legal tactics
The passage of time is a worry for claimants, and they have responded with public relations and legal tactics unusual for Supreme Court cases. A newly created Web site details the continuing environmental damage to Prince William Sound and a commercial fishing industry that has not fully recovered.

News conferences and a vigil are planned before the arguments. The “ridicule pole” Webber carved from yellow cedar, depicting an Exxon executive with oil flowing from his mouth, is crated and on its way to Washington, D.C.

Jeffrey Fisher, a Stanford law professor who will argue the case for plaintiffs, has sent the court a DVD containing photos and footage taken at the time of the spill, video of Exxon executives acknowledging fault and an audiotape of the distress call made by what plaintiffs claim to be a clearly drunk Capt. Joseph Hazelwood reporting that the Exxon Valdez had hit Bligh Reef.

Fisher said it is important to remind the justices of the events of 19 years ago, and that the jury was punishing Exxon for “socially outrageous behavior.”

“One of the dangers for us is that outrage dissipates over time, and it is hard to get back to the place where the country was at that time,” he said.

Justices have extended the allotted time for oral arguments, and the briefs filed on both sides indicate that the events of the grounding might yet be explored again.

‘Relapsed alcoholic’
Some things are not in dispute. The Exxon Valdez left port late on the evening of March 23, 1989, loaded with 53 million gallons of crude oil. It strayed out of the shipping lane to avoid ice. Hazelwood instructed the third mate on when to make the turn back into the lane, and then left the bridge of the ship, a violation of regulations. Just after midnight, the crewman ran the nearly 1,000-foot tanker aground on the reef, and 11 million gallons of oil oozed into Prince William Sound.

The oil eventually spread more than 600 miles, an area plaintiffs contend would stretch from Cape Cod, Mass., to Cape Lookout, N.C.

They also charge that Hazelwood, an alcoholic, was drunk. They argue that he consumed at least five double-vodkas in waterfront bars before boarding the ship. They say Exxon knew that Hazelwood, once treated for his disease, had resumed drinking.

Courts have agreed. “Spilling the oil was an accident, but putting a relapsed alcoholic in charge of a supertanker was not,” the appeals court ruled in upholding the punitive damages.

Exxon’s lawyer in the case, Walter Dellinger, told the court in his brief that it is “hotly disputed” whether Hazelwood was drunk at the time of the accident, and points out that Hazelwood was acquitted by a state court jury of operating a vessel under the influence.

Whatever misdeeds were committed by Hazelwood, Dellinger argues, they were not the misdeeds of Exxon. “Imposing vicarious punitive liability on a ship owner, without requiring the jury to find that the ship owner directed, countenanced or participated in the conduct, was in conflict with almost 200 years of unbroken maritime law,” the brief argues.

The reference is to the court’s 1818 decision in “The Amiable Nancy,” in which it held a ship’s owner could not be held responsible for the plundering of its crew when it was miles out at sea.

Exxon also argues that the punishment for discharges of oil and other hazardous substances is governed by the Clean Water Act, and it does not provide for private punitive damages. Alternately, the company says punitive damages should not be allowed because of what Exxon already has paid, or they should at least be reduced.

Not surprisingly, the claimants reject all of those arguments. Exxon itself stipulated that Hazelwood was a “managerial agent” of the company, they argue, and that the jury found that both Hazelwood and the company had acted recklessly. They contend that the Clean Water Act claim is baseless, and that the award is justified.

Final judgment
Justice Samuel Alito Jr. owns Exxon stock and has recused himself from the case. That leaves eight justices to hear it, and an even split would mean that the award stands.

Around Prince William Sound, residents wait for a final judgment on the $2.5 billion award, which plaintiff lawyers say now stands at about $4.8 billion because of the interest earned while the suit proceeds.

“It’s painful for people to talk about this,” said Jennifer Gibbons, executive director of the environmental group Prince William Soundkeeper, “but they want closure.”