The Night of the Cross and the Flag

GOING HOME:

Laceyville, Pennsylvania, is a tired, depressing little town in northeast Pennsylvania. The Blue Ridge Mountains, part of the Appalachians, are on one side of it and the Appalachian Trail used by many hikers each year goes right through the area nowadays, but not back then in the 50’s. The Susquehanna River goes right by and floods most years and takes the lives of unsuspecting swimmers every year, at least it seemed to. Not much to do in Laceyville in the 50’s. I didn’t realize how little there was to do there until I left after high school and then came back to visit over the years. “What the Hell did I do while living in that town?”

THE FLAG INCIDENT:

While I was living in Laceyville I was not depressed (at least I didn’t think so) but living life to the fullest with the resources I had available. Not much in material goods but a whole lot of opportunity to be bored and to create things to do. In recalling my time in Laceyville, I will start out with the zaniest experience of my early life. It’s the flag incident. It came out of being bored.

There it was on the wall of the gym, that giant Russian flag, as bright red as anything I had ever seen, with the sickle and hammer in yellow, menacingly dominating the whole place. And, it was closer to the ceiling than the American flag at the other end of the room. Kids streamed in through the doors, as did the teachers from the First Grade through the Twelfth of Laceyville school. Laceyville, Pennsylvania, that is. In the tail end of the Blue Ridge Mountains. My sister, Pat, was the first in the school to see it and rushed back out the door to tell her friends and soon the gym was filled with kids and teachers. Gasps were heard together with laughter as people milled around, seemingly mesmerized by the sight. Finally, Prof Forscht (pronounced forest),as he was called by everyone, who was the Principal, came in and his eyes seemed to bug out of his head and his faced turned about as red as the flag but he couldn’t seem to say anything.

My friend, Ed Whipple, and I stood there without saying a word when we joined the excitement — watching the reactions. It seemed pretty entertaining until we heard some girl start to cry –and then one of the teachers said to Prof that “We better get these kids out of here!!”. Maybe she was thinking of Joe McCarthy. After all, this was 1952 and the “Commie Scare” was running high. Turning angry, Prof Forscht started pushing us out the door of the gym and the teachers hurried us into our rooms.

It was a great school day, of course, because nothing talked about by the teachers was even heard unless it had to do with “the flag”. Every time we got a chance, Ed and I would start a discussion about it. Who do you think did it? And why would they do something like that? Is there a band of “Commies” around here?

The town cop, county sheriff, the head of the local American Legion, the County School Superintendent, and lots of townspeople came and stood around looking at the flag with varying degrees of amazement and anger. None of them laughed when we heard them talking about it. This was turning serious. My stomach was churning, as was Ed’s. My friend, Ed, and our girl friends at the time, Elanor Evans and Francie Davis, hung around together, as we usually did any way, since we were kind of a “mixed clique” of “The kids with the high grades – teacher’s pets, kind of ”. On this day, and those following, however, it was for moral support. The fact is, we were the culprits!!! The “little Bastards”, as we would be referred to by many townspeople once the truth got out.

Well, how did any one find out? Maybe we could have kept our mouths shut. Except for one thing, it was hard to fool Prof. Ed and I had tried to talk up the possibility of “outsiders” having come in to whip up local feelings. But, even that backfired on us when some locals actually began to suspect a new family with foreign accents of maybe being responsible and they even called a special meeting of the American Legion to talk about just that. Prof knew from the beginning that it was students. He gathered the school together and announced that “He knew who it was and when he got the lowdown they would be kicked out of school for good.” The thing is, he suspected the wrong people. He never would have thought it was me or Ed or our girl friends. He thought it was my brother, Bill, and a couple of his friends, who were “always getting into trouble”. Ed and I were Juniors and Bill and his friends were Freshmen but they had been hell-raisers quite a while. At first we weren’t concerned since there couldn’t be any proof since they hadn’t done it. With Prof, though, he usually pronounced judgment and then claimed he had the evidence – and that’s what he did in this case.

The whole town was talking, newspaper reporters were coming, and after a few days this thing was getting out of hand. Ed and I decided we would “come clean” and we would take the rap ourselves since the girls were Seniors and Elanor’s brother was the one we had gotten the flag from. He was a sailor working in D.C. and had been given a bunch of these “Russian” flags which had been confiscated and told to burn them. He had kept a couple and showed them to us one Sunday night when we were sitting around bored (Why not in Laceyville , Pa., population 600 without even a movie theatre). The upshot was that we decided to hang this sucker in the school gym as a joke – it would be easy enough to break in, having done it before. And what an exhilarating experience it was to do this!! Knowing how funny it was going to be to everyone – what a great prank!! It was a real high!! The night was perfect for it and no one could see us anyway. Hearts pounding, laughing to ourselves. We never figured on getting into real trouble for this.

AND THEN THERE WAS the CROSS INCIDENT:

What we thought we would get into trouble for was burning the cross the very same night on the front lawn of our favorite teachers, the Bennetts, and their 4 kids who were also our friends, Bob, Sue, Jack and Jim, 3 of whom were our age and the youngest, my sister Pat’s age. You see, the flag hanging took only part of the evening and, it was such great fun that we just had to do some other great thing. I don’t know whose idea it was but we all soon owned it. We built this cross about 10 feet high and wrapped it in cloth. Then we took a can of gas from Ed’s garage which his dad kept for his boat and drove 10 miles to the country home. Parking about a half mile away, we sneaked up to the house and, even with the dogs barking, managed to get this cross to stand up after we had soaked it in gas — and just when the house doors were opening we lit it and ran like Hell. About a quarter mile away we stopped behind some bushes and watched it burn. It caught a tree on fire in the front yard and we could hear Mr. Bennett hollering to the kids to “get the hose and get my gun”. It scared the Hell out of us as did the sight of the cross burning. It was still exhilarating as we raced to the car and sped back to town with lumps in our throats even as we bragged to each other about our great acts of Hell-Raising. When we got back to town we then all went home immediately with admonitions to each other to “act normal”.

CONFESSION and RETRIBUTION:

As I said, we had decided to ‘fess up, Ed and me that is, to keep my brother’s ass out of trouble as well as Eleanor’s brother. We figured my older brother, John, being a long way away in the Marines would not suffer any consequences. We first went to Ed’s parents and told the whole thing. They were pretty sophisticated about a lot of stuff, had a lot of money, with his Dad being one of the “brothers” in Whipple Brothers Lumber Co., which my Dad had worked for most of his life and only recently making a break away from it for halfway decent pay.. On top of that, Ed’s mother was on the school board. We took quite a tongue-lashing but I knew it was nothing compared to what I would get when I faced things at my house. But before I went to confession there we decided to go see Prof Forscht who was dumfounded it turned out to be us, class leaders, straight “A” students, all that jazz. The upshot was that Prof didn’t want to kick us out of school and said he wasn’t going to and would have to think of something else for us. Maybe if Ed hadn’t been in on it things would have been different, so it turned out good for me to have a friend well connected.

When I went home and told my mother it was received far less graciously than at the Whipples and the only thing worse would have been if my Dad had not been working out of town. There was a lot of screaming, swearing, and being pissed off that they were going to blame Bill just because he was easy to blame. My mother also didn’t like it that we had covered for the brother in the Navy and the girls. If that counted for something how about the fact that my brother was now in the Marine Corps. Boy, I didn’t have an answer for that one, especially when she didn’t care that it was Elanor’s brother who had given us the flag and would really get his “ass in a sling” if the Navy ever found out. She screamed that he should “get his ass in a sling” for it. My younger brothers and sisters were freaking out as was my sister-in-law, Ann, who was staying with us while John was on tour with the Marines. My mother’s reactions to crisis got us into a “stew” every time as she seemed to hyperventilate and teetered on the verge of collapse. Needless to say, it was a traumatic night at the Jayne place, which happened to be, that year, in an apartment on Main Street above Sheldon’s Furniture Store/ Funeral Parlor. My Dad wasn’t called but I was told “YOU just wait until your father gets home”.

A couple of days after confession, a black car drives into the school parking lot and a guy with a suit about as dark as the car gets out. Any strangers always got our full attention at school. When he got out all eyes turned on us – Ed and me, the only confessed culprits. The reason being that Prof had let it be known not only to us but the whole world the day before that he had been contacted by the F.B. I. who would be coming to investigate. My God, we had hoped he was just trying to put the fear of God in us – and it worked, especially now that we could see THE MAN in the flesh. This guy in the black suit sure as Hell looked like an image of J. Edgar Hoover.

About a long, really long, half hour later, Prof came to the classroom door and motioned the two of us out. Instead of red I believe we were white with fear and I sure needed to go to the John. I don’t remember much about that meeting except for seeing the guy sitting on the edge of Prof’s desk in the tiny office and motioning the two of us to sit in the only two chairs in front of him. I only remember his first question, “Why the Hell did you do it fella’s?” Who knows what we said . It must have been stupid, so much so that he had to have figured right off that we were mostly a danger to ourselves. I do remember something about how it could have gotten some innocent people killed since there was a real fear of “Communists, who are out to destroy our country”, as he put it. Then he tried to find out where we got the flag and we told him the story about finding it down by the train depot as if it had been thrown off a train in a bag. After a while he seemed to buy this. We were close to tears several times. By the time we got back to class everybody else was gone and they didn’t get to witness our whipped look. What a relief because we were no longer thinking this had been such a hot idea and our smug looks from Monday were completely gone.

But, maybe we were going to get past this fairly unscathed. Or so we thought. Ed and I showed up at school on Thursday — and everyone is really pissed to see us. The teachers knew and the kids had all found out that we weren’t getting the boot even though that’s what Prof had promised. Special privilege, that’s what we were getting and everybody knew it. The telephone lines had been burning up with all the talk about it. The school was abuzz with angry conversations and us being given dirty looks and shunned. Before noon every student had left the building and those with cars had started driving up and down the street in front and all around town shouting that we should be kicked out of school. Adults made no effort to stop them and many even called the school and told Prof they agreed with the kids. We got sent home for the day and when I got to my place the street was clogged with angry kids and cars honking their horns and general bedlam, which may have been o.k. as no one was throwing anything (this wasn’t yet the Sixties). However, upstairs in our apartment my mother was, by now, completely hysterical and about to have another “breakdown” as were all the other kids in the house, except Bill, who seemed to enjoy the fact that someone was causing more misery than he for a change. My mother apparently thought the apartment was going to be stormed. And my Father had been called (during the work week) to come home from 125 miles away!!! That’s what scared the Hell out of me!!! Finally the cars and kids left when it got to be time when school would ordinarily let out anyway. Some of them had to catch school buses to their homes in the country.

I was on pins and needles, as if waiting for the executioner until I could hear my father come in the door. I guess I don’t need to go into a lot of detail about my father/son encounter. There was never any discussion with my Dad. His mind was always made up about evidence, justice and judgment in the discipline of the family. But this time I did not get any corporal punishment. Just the possibility of it was enough to turn my stomach upside down. My father was a great negative role model for all seven of his kids on this relational stuff, especially the 4 boys. My later parental practices were obviously based on my childhood experiences. No excuse, just fact. Anyway, what I got, in addition to a one-sided shouting conversation, and another dose of esteem-busting, was grounding for at least a couple of months — only it wasn’t called “grounding”in those days, just,”You’re not going to leave this house for a god-damned thing for the rest of the school year as far as I’m concerned”. School and work and that’s it. “And those damned friends of yours, I   don’t want to see you anywhere around them, do you hear me?” Of course, what made it worse for me was that Ed Whipple didn’t get any punishment. Seems like his parents figured that going through the last few days was punishment enough. My folks didn’t think that way. As I think back, I believe they thought it was all about them and how I was trying to make their lives miserable. Yep, sure as Hell, I remember thinking the same way when I was parenting, at times. Like father, like son, I guess. No breaks from the home front but another from the school! That same night, as my father finished with me and went to the local bar to assure his drinking buddies that he had straightened me out, Ed and I were called to Prof Forscht’s home and he told us he did not want to suspend us but that he was telling us to stay home the next day, Friday, and all of the next two weeks. We could make up all our work and it would not go on our record or affect our grades. He didn’t want us to spread this around, however. As far as the town was concerned we were suspended.

Well, when word got out about the suspension school went back to routine, minus the president of the Junior class, me, and it’s local “rich kid”, Ed Whipple. The town started to simmer down after a few days even though the talk continued about the whole thing and how people were so disappointed in me and Ed and “What’s the younger generation coming to anyway?” I heard all the talk because I worked at the local A&P Store and also cleaned up at George’s Restaurant. I got a lot of hours in, actually, and it meant less time to be stuck at home and more money for me as I got no allowance (who did, except my friend Ed?) and, in fact, bought all my own clothes and anything else that I needed or wanted , outside of the food on the table.

You might wonder what happened as a consequence of the cross burning which we had assumed to be the worst of the two things we had done. Well, on the weekend when we were suspended Ed and I came clean to the Bennett family about that by going to their house and apologizing to the teachers and their kids. By that time all the stuff had come down on us for the “flag incident” and they must have figured we had had enough. Besides, they knew us well enough to realize that pushing the KKK agenda was not part of our motivation – we were just bored, temporarily stupid, high school kids. It’s not to say it was easy going to their house and confessing and apologizing but I guess we were getting good at it by this time in the ordeal. And nothing was as bad as the fear-ridden reception and anticipation at my house which I had faced alone since bringing along my fellow conspirator would not have helped my case at all, only increased the wrath once he left.

EPILOGUE:

But, I did live through this whole thing. A couple of weeks later we were back in school and by the end of the school year I didn’t notice any difference with classmates. In fact, they elected me class president for the next year ( all 25 members of the class voted for me, including myself).

I don’t know why I started out with this story except that it was the most exciting incident of my school years. It got reported in the Tunknannock and Wilkes-Barre newspapers. I used it as a basis for papers in my college years. It nearly cost my friend, Ed, a security clearance when he went in the service and needed it for some job. I have often wondered what would have happened if this had been the sixties. By then maybe we kids would have really started to give a damn about the implications of McCarthyism and the Ku Klux Klan. The 50’s seemed to be “in between realities”. It was between the Korean War and Viet Nam War. And it was between the white man’s successful years of Post WW II and the Civil Rights Movement when blacks got sick of riding in the back of the bus and taking the leftovers.

The flag and cross incidents and the ensuing series of responses and consequences represented my first brush with the law. I could actually have been sent to juvenile court, and probably would have, if today’s Hellbent “lock ‘em up” attitude had been prevalent.

 

 

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The Earth Always Wins

Most of the time, I live about 2100 feet from the Des Moines River. Right now, a levee keeps me approximately 375 feet away from the river. However, I received a notice earlier this year that about 10 square feet of the northeast corner of my living room is in a flood plain. It wasn’t that way when I bought the house. Lines are moving.

Before I bought the house, the basement had been flooded. That was in 1993. Of course, that was a 500-year flood. So, what did I have to worry about? In 2008, I had just shy of three feet of water in the basement. Since then, the levee has been raised. To be accurate, the government (I assume city, but it could have been the county) raised the levee while the water was rising at a pace faster than heavy equipment could add to the top. The brave construction workers won.

Before it was removed by the graffiti police, a piece of wisdom on a pole near my home said: “The earth always wins!” I don’t think I should take any chances this time around. I am required to buy flood insurance because I have a mortgage on the house.

I don’t understand. I’m confused. Can’t I just expect the federal government to jump in and make me whole again after the waters have subsided? Isn’t that the way it works?

Several farmers in the western part of the state along the Missouri River have sued the U.S. Army Corps of Engineers (USACE), claiming “flood control is no longer the U.S. Army Corps of Engineers’ top priority,” that “the agency is focused on slowing the river and restoring habitat that protects the endangered pallid sturgeon and shorebirds like the piping plover and interior least tern.”

Residents of western Fremont County are blaming the U.S. Corps of Engineers for mismanaging the Missouri River. U.S. Senator Charles Grassley (R-Iowa) also has chimed in. Both are accusing the Corps of directing most of its attention to wildlife, and not enough focus on its top priority – flood control.

How quickly some people forget. Many Iowans, if old enough, will remember the floods of 1993. The community of Hamburg was flooded that year, along with many other communities throughout Iowa that are situated by a river. Cedar Rapids, Des Moines, Davenport, and numerous other cities, large and small, were affected by catastrophic flooding that year.

In 1993, Hamburg wasn’t flooded by the waters of the Missouri River, but because of a “drainage ditch [that] carried water from a large area north of the Hamburg area.” That water “backed up behind levees at the confluence of the Missouri and Nishnabotna Rivers, where Hamburg is located. The water from the drainage ditch could not escape into the river when the gates were closed to keep the river water out of the area.”

Former Congressman Neal Smith personally looked into the situation and did what he could to help the residents of Hamburg and the surrounding area. He spoke with General Geneva, the top general in the corps, and found out that the corps had “made a complete study of the area in 1986 and developed plans to install two large pumps, which would be used to pump water back over the levees and into the Missouri River. “However, under procedures the Reagan and Bush administrations had adopted to prevent such projects from being federally funded, those plans had not made it through the bureaucracy to the top office in Washington, D.C., for action.”

Congressman Smith sought and gained immediate approval for an appropriation of about $800,000 in federal funds to get those pumps Hamburg and Fremont County needed. “To qualify such a project, there must be a local sponsor such as the county or city. That local sponsor in this case would need to spend a comparatively minuscule sum to launch the project. [Congressman Smith believed] it was $60,000. In 1994 there was no flood threat, and the local sponsors then chose to not even do their small part to get the pumps into place quickly.”

I can look out my front door and see two pumps on top of the levee across the street from me. But is it enough?

The U.S. Army Corps of Engineers Levee Portfolio Report for 2018 says: “No levee is flood-proof. Levees reduce the risk of flooding, but no levee system can eliminate all flood risk. A levee is generally designed to exclude floodwater from the leveed area over a limited range of flood events.”

This isn’t by far the first flood to hit the southwestern corner of the state. Residents must be ignoring the USACE’s reports. “Levees that experience long duration flood events are more likely to develop performance issues associated with breach prior to overtopping failure modes such as embankment and foundation seepage and piping.” [Piping is a “system of fissures through which water can travel inside the levee. Piping can be created by animal burrows or the gradual flow of water over time, thereby eroding tunnels inside the levee.”]

The USACE is not solely responsible for everything on both sides of the levee. It’s a partnership, like the estimated 11 million people who work or live behind levees in the United States. Stakeholders have a responsibility, too. “Levees in the USACE levee portfolio vary widely in age, design and construction practices, and flood regimes (e.g., coastal, river, flashy or long duration). The average age of levees in the USACE portfolio is roughly 50 years.” The levees along the Missouri River have been in place without much change for longer than the normal lifespan.

As a youngster, I remember the old men around town talking about the changes the USACE made to the Missouri River. “Made it a funnel,” one guy said. “You can’t harness all that water to go straight down the river without having some area that can allow it to sit for a while.” These old timers were talking around me and all of us lived just about two counties away from the Missouri and had the Loess Hills in between. Those old-timers, who are most likely dead now, predicted this over 50 years ago.

I don’t get it. The lawsuit by farmers in southwest Iowa claim that the USACE are slowing the river. I’m not an engineer, but as I see it, moving levees back from the edge of the river to make it shallower and slower would appear to make the river more capable of accommodating fluctuations.

No matter what some flooding victims may think, earth, wind and fire are impossible to tame under circumstances in which any of the three can get out of hand.

I will be purchasing some flood insurance in the near future, as much as I hate to do it. It’s not to protect me as much as it is to protect the mortgage holder. I’ll never be able to be whole again. I will try to be prepared and move things out when I see signs of high water. After all, the earth always wins!

 

Sources:

Smith, Neal, Mr. Smith Went to Washington. Ames, Iowa. Iowa State University Press. 1996. Pp 288-290.

Eller, Donnelle. Iowa farmers: Corps prioritizes endangered species. The Des Moines Sunday Register. March 31, 2019. Pp 1A & 14A.

https://usace.contentdm.oclc.org/utils/getfile/collection/p266001coll1/id/6922 United States Army Corps of Engineers Levee Portfolio Report. March 2018. Pp. 8, 16-17,

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The Ins and Outs of Baseball

Okay, read carefully. You got nine guys in and nine guys out.

The nine guys out try to get the nine guys in out three times.

The nine guys in send guys up to get on so that they can get in, without getting out.

Once the nine guys out get the nine guys in out three times, the nine guys out come in and the nine guys in go out to get the nine guys in, who were out, out three times.

The nine guys in, who were out, also send guys up to try to get on so that they can get in without getting out. Sometimes, one of the guys in will hit one out. If it stays in without going out, all the guys on at that time, including the guy who hit it out, get to come in without getting out.

After the nine guys out and the nine guys in go in and out nine times the guys with the most guys in after getting on without getting out are the winners.

 

 

 

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“Thank you, sir”

Vail is a small community in west-central Iowa. It’s also a ski resort in Colorado. But I grew up in the Iowa version. One thing both communities have in common is a swimming pool. However, Vail, Colorado has ten times more residents than Vail, Iowa.

Vail, Iowa, has a population of about 430 residents, mostly Irish-Catholic, but with a few people of Protestant-English origin and a handful of folks from German descent. It has maintained a community swimming pool since sometime in the 1960s. It is not owned by the city, but rather an association of interested parents and other residents.

Prior to the establishment of the Vail Community Swimming Pool Association, and the creation of the swimming pool, children in Vail had to make their way to nearby Denison to swim in that city’s municipal pool, or take their chances swimming in Tracy’s pond about a mile out of town. We often had to share the pond with cattle. You can imagine which facility we favored. So every chance we got we tried to catch a ride to Denison.

Often, many of us boys would wait downtown to see if Tracy North was going to stop for coffee at the local café before going to the Denison Sale Barn. He may not stop for coffee, but he was a weekly regular at the Sale Barn. He did, as you might suspect, own the pond and just about 50% of all other real estate in town and west of town. Everyone knew Tracy. It was never evident that he knew anyone. But Tracy was a kind-hearted man, and was always good for a free ride.

On one particular Saturday morning, a small group of Vail boys, me included, asked Tracy for a ride to Denison. Without saying something like, “is it okay with your parents?” or a question of other concern, he would smile and say: “Sure! Get in the car!” And roughly 6 to 10 young boys would scramble in, trying to be the one that sat by the window. He always had an adult male passenger in front who rode with him to watch the sales of cattle, hay, straw, hens, and other farm implements and livestock. I can’t remember who it was on this nice sunny Saturday morning; it doesn’t make any difference, that adult got the shotgun seat.

With the back seat filled with half-naked boys clad only in swim trunks and a towel, off we sped to Denison. The small boys sat on the laps of the larger ones. This was in the day before seat belts (or, safety belts as we called ‘em back then) were required. I can’t recall who was all in Tracy’s Cadillac that morning, but I can safely say that besides me, there was at least one Malloy boy and a McCoid boy.

We were almost to Denison on Highway 30 when a few of us began telling Tracy that there was a Highway Patrolman behind us with his lights flashing. “I think he wants you to pull over on the shoulder, Tracy.” Someone would say. Tracy smiled and kept driving. After about a mile, Tracy finally pulled over.

The patrolman walked up to Tracy’s window and asked, “Sir, did you know you were speeding?” Tracy said, “No, sir.  I didn’t know that.  Thank you.” He rolled the window up as he drove off leaving the trooper standing alone along the shoulder of the road.

I’m going to bet fifty-cents that one of us kids yelled, “Holy shit!”

The trooper never chased us down. We arrived at the pool safely, and we talked about it for days (years later, too).

We never worried about how to get home. Someone’s mom would grudgingly accept a collect call and come get us. 90% of the time it was Kate Malloy. She was the nice mother who didn’t cuss us out. When my mom would yell at us Ryan boys for riding to Denison without telling her, we would suggest that maybe we should just walk out to Tracy’s pond. That swimming pool in Vail couldn’t be built fast enough.

 

 

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Flaws in the Laws: Part II – Mourning Dove Hunting

This is the second in the series: Flaws in the Laws.

Most of the articles in this series will focus on the Iowa Code. However, this particular flaw is noticeable in the Code and in the Administrative Rules.

The Eurasian-collared dove is similar to the mourning dove. Both doves are members of the family Columbidae: “a family of game birds comprising of doves and pigeons.” The small distinct difference appears to be the black ring around the neck of the Eurasian-collared dove, which the mourning dove lacks.

In 2011, the Iowa Legislature passed, and the governor enacted Senate File 464, “An Act allowing the establishment of an open season for hunting mourning doves.” (Emphasis supplied.) The law does not say “doves”; it does not say “Eurasian collared-doves”; it does not say “rock dove”; it does not say “turtle dove”; it specifically and unequivocally says “mourning dove”.

The Iowa Natural Resources Commission was charged with incorporating the mourning dove into a rule that defines “the season dates, bag limits, possession limits, shooting hours and areas open to hunting for” snipe, woodcock, and a few other avian species.

In the process of incorporating mourning doves into the rules, it included the Eurasian collared-dove as if the legislature had passed a law establishing the open season for mourning doves AND Eurasian collared-doves. It did not. For years we represented an organization that worked to have the Eurasian collared-dove removed from the rules because of one reason only – the NRC does not have authority to add anything beyond the statutory authority given it by the law that was enacted. “‘An agency shall have only that authority or discretion delegated to or conferred upon the agency by law and shall not expand or enlarge its authority or discretion beyond the powers delegated to or conferred upon the agency.’ Iowa Code § 17A.23(3).” Auen v. Alcoholic Beverages Div., 679 NW2d 586, 590 (Iowa 2004)(Emphasis added).

“An agency shall not implement or enforce any standard, requirement, or threshold, including any term or condition of a permit or license issued by the agency, unless that standard, requirement, or threshold is clearly required or clearly permitted by a state statute, rule adopted pursuant to this chapter, or a federal statute or regulation, or is required by a court ruling, a state or federal executive order, a state or federal directive that would result in the gain or loss of specific funding, or a federal waiver. Iowa Code § 17A.23(4).” No federal funding, waiver, court ruling, or other action is associated with this rule.

During the public comment section of the Administrative Rules Review Committee (the legislative oversight committee assigned to reviewing proposed rules) the NRC attorney claimed the “Commission has the authority to include Eurasian collared-doves because the definition of “Columbidae” in section 481A broadens the scope of game birds with the definition’s introduction of ‘such as’.” “‘Such as’ is legally considered to be an expander”, she said. What she failed to mention is that the definition ends with the word “only”.

“Game” means all of the animals specified in this subsection except those designated as not protected, and includes the heads, skins, and any other parts, and the nests and eggs of birds and their plumage.

a.  The Anatidae:  such as swans, geese, brant, and ducks

b.  The Rallidae:  such as rails, coots, mudhens, and gallinules.

c.  The Limicolae:  such as shorebirds, plovers, surfbirds, snipe, woodcock, sandpipers, tattlers, godwits, and curlews

d.  The Gallinae:  such as wild turkeys, grouse, pheasants, partridges, and quail.

e.  The Columbidae:  such as mourning doves and wild rock doves only.

Iowa Code § 481A.1(21)(2015)(Emphasis added). Notice that the Columbidae is the only species that ends with the qualifier “only”. Does “expander” negate “only”?

The Eurasian collared dove is not a protected bird. The only members of the Columbidae family that are protected species are:

DOVE, Inca, Columbina inca
Mourning, Zenaida macroura
White-tipped, Leptotila verreauxi
White-winged, Zenaida asiatica
Zenaida, Zenaida aurita

Title 50, section 10.13, Code of Federal Regulations (50 CFR 10.13).

The Eurasian collared-dove, Streptopelia decaocto, falls into a category of non-protected “Family Columbidae”, which includes the Rock Pigeon, the Island collared-dove, and many more.

The Commission’s attorney has said that, since the Commission may protect a bird that is considered protected, it may also protect a bird that is not protected. Possibly so, but that doesn’t mean that the Commission can include what it wants to include when the law is narrowly tailored to one specifically identified bird – the mourning dove.

Now here’s the crazy part. “There is justifiable concern, that over time,” the Commission’s lawyer said, “there is a possibility that the Eurasian collared-dove could push Mourning Doves and other native birds out of their native habitat, which could impact their (sic) population of birds”. We don’t disagree, if we understand her babble correctly. But then, why would you want to protect them? From that point on, the protection of Eurasian collared-doves became the theme rather than disrespect for the law.

At the hearing, there was considerable banter between Rep. Rick Olsen (D-Des Moines) and the Commission’s attorney about the wild rock dove. Neither the attorney nor Rep. Olson knew what a wild rock dove looked like. Later, during testimony, a self-described wildlife biologist, and a deputy director, claimed that there were no rock doves in Iowa; that they were very limited. Rep. Olson asked which answer was it – there are no rock doves in Iowa, or they are very limited? He received an identical response. The meeting over this rule was getting almost comical. By the way, a wild rock dove is a common pigeon.

Rep. Olson asked if there were any other doves in Iowa besides the mourning dove, the Eurasian collared-dove and the very limited non-existent rock doves. No one knew the answer. The deputy director, relying upon information from staff, claimed that the mourning dove and the Eurasian collared-dove are the only two doves hunted in Iowa. That still doesn’t answer the question of why the bureaucrats cannot see beyond the very narrowly-tailored law that establishes a hunting season for mourning doves only.

Let’s put this into simple terms. The Legislature passed a law allowing for the legal hunting of mourning doves. The NRC added the Eurasian-collared dove to the rule without authority, but only because it looks like a mourning dove from a distance. The Eurasian-collared dove is an invasive species. It could wipe out the native habitat of mourning doves. Yet, the NRC gave it protective status along with the mourning dove. A sportsman could shoot 15 Eurasian-collared doves (the bag limit is 15) and no mourning doves, and that would be all the he could get for the day. Theoretically, the sportsman should be able to continue until she shot 15 mourning doves: the Eurasian-collared doves would be bonuses.

No one seemed to understand our argument. Almost. The director of the Department of Natural Resources at that time, Chuck Gipp, understood it perfectly. He smiled as I attempted to explain the (illegal) loophole. Talking with him after the meeting, he iterated what was explained. But his boss was the governor, and like most sportsmen, the governor (Terry E. Branstad) didn’t get it.

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How much does it cost to buy a constitutional amendment?

How much do you think it would cost to amend the Iowa Constitution? To fund an amendment to the U.S. Constitution? Or, the constitutions of all 50 states? What staggering amount would you have to cough up to amend all fifty-one constitutions? We’re about to find out.

An attempt to amend all state constitutions as well as the federal constitution to include the rights of victims is a goal of billionaire Dr. Henry T. Nicholas.

Known as Marsy’s Law, the proposal is named for a California resident, Nicholas’ sister Marsalee (Marsy) Nicholas, who was stalked and murdered by her ex-boyfriend and neighbor. Marsy’s mother and brother walked into a grocery store one week after the slaying and were confronted by the accused murderer. The family had no idea that the accused, Kerry Michael Conley had been released on $100,000 bail. [Subsequently convicted of 2nd degree murder, he died in prison of natural causes at the age of 53.]

Amending the Iowa Constitution, or any constitution for that matter, is serious business. Changing a constitution should not be taken lightly. An amendment to a constitution should not be controversial, or at the least, it should have minimal or token opposition. Adopting Marsy’s Law as a constitutional amendment is highly controversial.

Governor Kim Reynolds has indicated in her Condition of the State address that she will call “for a constitutional amendment enshrining victims’ right in the state’s constitution”.

Currently, voters in a dozen states have approved constitutional amendments to adopt some form of Marsy’s Law. However, the Montana Supreme Court has struck down its version of Marsy’s Law as “void in its entirety” because when “voters were required to vote ‘yes’ or ‘no’ for (the amendment) in its entirety, they were forced to vote for or against multiple, not closely related, changes to the Montana Constitution with one vote”. It’s that statement that has many organizations, including the ACLU, the Iowa Coalition Against Sexual Assault, the Iowa Coalition Against Domestic Violence, and dozens of newspaper editorial boards (including the NY Times), strongly opposing the enactment of this measure.

The Marsy’s Law movement originated in California with Proposition 33 in 2008. The California initiative includes 17 rights in the judicial process, “including the right to legal standing, protection from the defendant, notification of all court proceedings, and restitution, as well as granting parole boards far greater powers to deny inmates parole.” Those rights are codified in Iowa Code Chapter 915. However, the proposed amendment goes far beyond that.

Proponents in Iowa cite a couple reasons for their support of this proposal. First, they claim that those rights in Chapter 915 can go away, easily. They envision a gutting of victims’ rights provisions in Chapter 915 and therefore the need to enshrine the rights into the constitution. That’s a nonexistent probability. What group of legislators would commit political suicide by denying victims the rights already statutorily provided? Next, proponents say victims should have rights equal to those guaranteed to defendants. But that’s not what they are seeking. The current proposals give victims the right not to be deposed (among other amenities). Rights no criminal defendant has, nor should have.

Consider this: Every constitutional right is available to all citizens, and those rights protect the citizenry from the government and the government alone. Marsy’s Law protects one citizen from another. Further, the concept of equating rights to protect one from the government as compared/opposed to protecting one from another crosses the line between civil and criminal laws. Due process is a right proffered by constitutional law. Due process is not a component of civil law.

A Montana county attorney explained that Marsy’s Law was well-intended, but aside from depriving Montana voters “of the ability to consider the many, separate ways it changed Montana’s constitution” it failed to “explain the significant administrative, financial, and compliance burdens its unfunded mandates imposed upon state, county and local governments while jeopardizing the existing rights of everyone involved with the criminal judicial system.”

As a matter-of-fact, the administrative, financial and compliance burdens are exactly what has led some South Dakota legislators to consider repealing the constitutional amendment. South Dakota, the first state to enact Marsy’s Law after California, has experienced high costs in administering the provisions of the law, and in some cases, the law intended to protect victims has actually hampered investigations. Legislators are promising to add statutory rights for victims before calling for a total repeal. Those statutory rights offered are the same as Iowa has provided for years.

There is also the problem with the word “victim”. Who is and who is not a victim? A former Iowa prosecutor training coordinator once said that “there are no victimless crimes.” That can be interpreted as saying that when an Iowa county attorney prosecutes a defendant, that county attorney is prosecuting on behalf of the state. The State is the people of Iowa. We are all victims of the crime. The court heading in a criminal matter is always: “State v. ____”.

A good Democrat wanted a representative of Marsy’s Law to speak at a county central committee meeting. He insisted that the issue was non-partisan. It is. That’s why it shouldn’t be discussed at a partisan party function. It shouldn’t be discussed by Iowa legislators, either. Money should not be able to buy constitutional amendments.

This article was originally published in the Prairie Progressive – Winter, 2019 issue.

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