Rock The Boat

Posted on September 12, 2015 by Marty Ryan

webeagleSometimes you win; sometimes you lose; and sometimes you win losing. The latter is what happened to Lead Is Poison Coalition (LIP-C) on Tuesday morning, September 8, 2015.

ARC 2087C is a proposed rule (Intended Action) that amends “the season dates, bag limits, possession limits, shooting hours and areas open to hunting for” snipe, woodcock, mourning doves, and a few other avian species. Last month, LIP-C submitted testimony to the Natural Resources Commission (NRC) requesting that it remove “Eurasian collared-dove” from the list. In 2011, the Iowa Legislature passed, and governor enacted Senate File 464, “An Act allowing the establishment of an open season for hunting Mourning Doves.” 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”.

Since the NRC has incorporated Mourning Doves into the rules defining bag limits, shooting hours, etc., it has 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. LIP-C has been struggling for years 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.

On Tuesday, September 8, the Iowa Legislative Rules Review Committee met, and one of the rules reviewed was the controversial ARC 2087C. You know it’s controversial when people entering the room in early September find standing room only and the Department of Natural Resources’ director is in attendance.

The NRC attorney claims 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.

  1. The Anatidae:  such as swans, geese, brant, and ducks.
  2. The Rallidae:  such as rails, coots, mudhens, and gallinules.
  3. The Limicolae:  such as shorebirds, plovers, surfbirds, snipe, woodcock, sandpipers, tattlers, godwits, and curlews.
  4. The Gallinae:  such as wild turkeys, grouse, pheasants, partridges, and quail.
  5. 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”.

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 indentified 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.

Nevertheless, Senator Courtney pushed on: “I want you to understand, I am not opposed to dove hunting, but I am opposed to not following legislation.” Sen. Courtney made our point! But no one seemed to listen.

There was considerable banter between Rep. Rick Olson and the Commission’s attorney about the wild rock dove. Neither the attorney nor Rep. Olson knew what a wild rock dove looked like. A wild Rock Dove is a common pigeon. 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.

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.

So, the Commission and all of its supporters won. Or did they? In the end, the non-protected invasive species (the Eurasian collared-dove) is protected. It’s like having the Iowa Dept. of Agriculture and Land Stewardship adopting a rule to protect the Canadian thistle.

The sad end to this story is the fact that bureaucracy won, and legislators lost authority.

Posted in Fairness, Issues | Tagged , , , , , , , , | 1 Comment

Iowa Made a Costly Mistake

Posted on August 27, 2015 by Marty Ryan

webeagleAs I was leaving the Annual Iowa CURE meeting this past Sunday, I had a brief conversation with the mother of a former inmate at Iowa Correctional Institute for Women at Mitchellville. She correctly identified the impossibility of any inmate paying off their restitution.

I understand a defendant paying off the damages caused to a victim, but the matter of restitution has gone too far. It began in 1998 when the Iowa Constitution was amended because of a suggestion made by Iowa Attorney General Tom Miller. He claimed that the Iowa Constitution should be amended to remove the cap of $100 for a simple misdemeanor fine. He didn’t believe that a C-spot was a big enough deterrent.

Prior to 1998, Article One, Section 11 of Iowa’s Constitution stated:

All offences less than felony and in which the punishment does not exceed a fine of One hundred dollars, or imprisonment for thirty days, shall be tried summarily before a Justice of the Peace, or other officer authorized by law, on information under oath, without indictment, or the intervention of a grand jury, saving to the defendant the right of appeal; and no person shall be held to answer for any higher criminal offence, unless on presentment or indictment by a grand jury, except in cases arising in the army, or navy, or in the militia, when in actual service, in time of war or public danger.

The change makes the amendment read:

All offenses less than felony and in which the maximum permissible imprisonment does not exceed thirty days shall be tried summarily before an officer authorized by law, on information under oath, without indictment, or the intervention of a grand jury, saving to the defendant the right of appeal; and no person shall be held to answer for any higher criminal offense, unless on presentment or indictment by a grand jury, except in cases arising in the army, or navy, or in the militia, when in actual service, in time of war or public danger.

The people of Iowa approved the change in constitutional language substantially with 63.9% favoring the ballot measure. By contrast, the amendment adding “women” to the Iowa Equal Rights Act, passed the approval of Iowa voters overwhelmingly with 83.4% of the vote.

Today, a fine for a simple misdemeanor is “a fine of at least sixty-five dollars but not to exceed six hundred twenty-five dollars”. The high end, $650 has become the norm. It starts the spiraling process of people unable to get their head above water. They are unable to pay the fine, the court costs, the surcharges, so they don’t. Next, they are stopped for a minor scheduled violation (fix-it ticket) and find out that there is a warrant for their arrest because they have failed to pay the fine, court costs, etc. So they get slapped with another misdemeanor, or contempt. The financial obligations are piled on. The more judges pile on, the more unrealistic it becomes for the defendant to pay.

The courts, the Iowa Legislature, and county attorneys wonder why we have such a huge figure of unpaid fines, surcharges, etc. The answer is simple. Ever since the thought of “$100 isn’t much anymore” entered minds of exceedingly well-paid public officials, the debt owed to the state, counties and municipalities has increased exponentially. Over $650 million of fines, surcharges, etc. is outstanding. In 1998, the year of the constitutional change, the court debt was $143.4 million.

One hundred dollars is still a lot of money to a large group of Iowans. I knew it back in 1998. But I didn’t do enough to defeat the constitutional amendment. I didn’t think judges would be senseless enough to charge ridiculous amounts in fines to people who couldn’t afford them. I didn’t think prosecutors would be cruel enough to ask for the maximum fine, knowing that they would not be paid. And I didn’t think legislators would be foolish enough to continue their push to increase the add-ons that go with every fine; surcharges, penalties, interest, hiring ruthless, private debt collection companies; and enacting provisions that create more of a hardship for those who can least afford it.

I’m not going to take the blame for allowing the amendment to pass. Someone needs to take the blame for failing to fine the poor a minimum of $65 for a simple misdemeanor. The $650 top end should be reserved for individuals who are capable of paying it; those who earn six-figure salaries, such as the Iowa attorney general.

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Fun With Geography

Posted on May 28, 2015 by Marty Ryan

webeagleIOWA

Iowa can be a state of confusion. Sorry about the bad pun.

Why is the city of Osceola in Clarke County when the county of Osceola is about 250 miles away? Not only should Osceola be in Osceola County, it should be the county seat. After all, Dubuque is in Dubuque County, Clinton is in Clinton County, and Audubon is in Audubon County, and they are all county seats. This is only one example of an Iowa oddity. There are numerous others, such as: Marion County is more than a two-hour drive from the city of Marion.

Des Moines County was one of the first counties in Iowa. But it’s not on the Des Moines River. Go figure! However, as expected, the City of Des Moines is located on the Des Moines River. The river also runs through Wapello County, but the town of Wapello is located on the Iowa River in Louisa County.

Also sited on the Iowa River is Iowa City, but Iowa City is not the county seat of Iowa County. It is the county seat of Johnson County. Iowa County lies west of Johnson County. You expect that there would be a Johnson, Iowa. You would be wrong, unless it’s one of those vanished communities like Buxton. Evidently, Vice President Richard M. Johnson was not popular enough to have a town named after him.

Imagine someone leaving Des Moines to visit someone in Monona, and winding up in Onawa asking directions. That’s because Monona is a city in a county (Clayton) that borders the Mississippi River. The County of Monona borders the Missouri River in Western Iowa. That person was not ‘exactly’ wrong, but they certainly weren’t right.

It’s only natural that Webster City would be in Webster County, or that the Little Sioux River flow through Sioux County. After all, Humboldt is in Humboldt County, and Boone is in Boone County (although the Boone River is not), and the Cedar River flows through Cedar Falls and Cedar Rapids. But you would be wrong. Webster City is in Hamilton County, and the Little Sioux River barely comes close to Sioux County. However, Sioux Center is located in Sioux County, but not Sioux City, which is not on the Sioux River.

Black Hawk Lake is located in Sac County, not Black Hawk County. Crawfordsville is on the opposite side of the state from Crawford County. The Floyd River flows into the Missouri River, but rain falling in Floyd County reaches the Mississippi. Greene County is just less than 40 miles west of Interstate 35, and the community of Greene is approximately 30 miles east of Interstate 35. Speaking of Greene County, its county seat is Jefferson, but – you guessed it – Jefferson County is in Southeast Iowa.

Keokuk is in Lee County, not Keokuk County; Monroe is in Jasper County, not Monroe County; but Polk City is in Polk County, and Story City is in Story County.

There is no Lincoln County in Iowa. All counties were named before Lincoln became President. There is, however, The Lincoln Highway, which runs from Clinton to beyond Missouri Valley, river to river; and the town of Lincoln was once called Berlin. Berlin’s name changed to Lincoln after World War I.

And finally, the Iowa city of Washington is actually the county seat of Washington County. Hey! What’s up with that?

No wonder people get confused crisscrossing Iowa. They’re probably in a state of confusion! Sorry.

 

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Control the Issue

Posted on November 5, 2014 by Marty Ryan

webeagleI rediscovered a valuable lesson after Tuesday’s election.  Don’t let the opposition determine the issue.

Bruce Braley’s campaign for the U.S. Senate was poorly run.  That’s my opinion.  It began when he spoke to a group of trial attorneys in Texas, stating that if the Democrats lost the majority in the U.S. Senate, “a farmer from Iowa who never went to law school” would become the next Chair of the Senate Judiciary Committee.  He apologized within a day of the tape being aired on television.  That was his first big mistake.  He didn’t need to apologize; he stated a fact.

At that point, he allowed the Republicans and media to define the issue.

Twenty years ago, I was studying to become a legal assistant.  The class in Advanced Legal Research and Writing was given an assignment.  I can’t recall the specific assignment, but I do recall the case associated with the assignment – State v. Lake.  Kathy Lake, from Muscatine, took her case to the Iowa Supreme Court defending herself (pro se).  Here are the facts in the case:

On June 23, 1990, defendant, Kathy Lake, was a passenger in an automobile being driven on a public street in West Liberty. A police officer stopped the vehicle based on his belief that the driver was operating while intoxicated. The validity of that stop is not challenged. The driver brought the vehicle to a stop in a public parking lot. The officer ordered the driver out of the car.

At or near the time that the driver exited the vehicle, the defendant also stepped out of the vehicle and spoke to the officer. The officer directed defendant to re-enter the vehicle and, when she did not, told her to stay in the vicinity. Based on the officer’s observations of defendant, she was charged with public intoxication in violation of Iowa Code section 123.46 (1989).

Notice that Lake was “outside” of the vehicle when she was charged with public intoxication.  The issue in the case was whether “defendant [Lake] was in a “public place” even while she remained within the automobile.”  Evidently, without knowing any more information other than provided in the written opinion, it appears as though Kathy Lake controlled the issue.  There was an alternative question for the court to answer – “that she entered a public place when she exited the car.”

If you read this case, you will realize that Lake determined the issue.  When I read this case almost 20 years ago, I had to read it more than once.  It came in handy for two reasons.  First, the State attempted for years to change the law so that “the interior of a motor vehicle is public place for the purposes of public intoxication”.  Imagine how detrimental that law would have been if it were enacted?  I did everything I could to stop that legislation from becoming law, and it seems like I had to do that for six or eight straight years. In the end, a couple of government entities quit introducing it – I won!  Second, it taught me that I should be able to decide what the issue is for discussion, not someone else.  That’s how I try to lobby.

Braley did not insult Grassley; he stated a fact.  Yet, he succumbed to what the opposition considered to be an insult.  Or, was that the game all along?  Make it appear as though he insulted the senior senator from Iowa.

The media rose again to condemn a statement made by Senator Tom Harkin.  Harkin said “that Ernst wasn’t fit to be Iowa’s senator just because she’s ‘really attractive and she sounds nice.’”

In addressing fellow Democrats in Ames, Harkin said:  “I don’t care if she’s as good looking as Taylor Swift or as nice as Mr. Rogers, but if she votes like Michele Bachmann, she’s wrong for the state of Iowa.”  Within a day Senator Harkin is saying that he regretted those remarks.  Why?

In politics, the opposition always says unflattering things about you.  How ironic that Senator-elect Ernst wouldn’t talk to media outlets in Iowa because they wrote negative editorials about her, but she used CNN to express her distaste for what Harkin said.  She controlled the issue.

Besides, the double standard was very obvious in this campaign. Why is it that Joni Ernst did not apologize for her husband’s remarks on Facebook about Hillary Clinton being a hag? Or that he posted a supposed joke that displayed violence against women?  Neither the campaign nor Joni apologized.  These are instances in which an apology is appropriate. Again, she controlled the issue and the media allowed it.

What will happen now that Braley has been defeated and the Republicans take control of the U.S. Senate?  A “farmer from Iowa who never went to law school” will probably become the next Chair of the Senate Judiciary Committee.  It’s a fact.

I’m taking control of this issue. I will not apologize!

 

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Dennis Barnum 1934-2014

Posted on September 10, 2014 by Marty Ryan

webeagleDennis Barnum: Dennis, as in “Dennis the Menace”, and Barnum, as in “Barnum and Bailey Circus” (he purposefully left off the Ringling Brothers association); that’s how he introduced himself to me, and how I have heard him introduce himself to others. It worked. I can often miss someone’s name in an introduction. But I didn’t miss his.

I remember well the first and last time I spoke with Dennis.

Last June, he came to our home to take us out to lunch. Stephanie and I were just heading out the door to speak at an organization that is one of our clients. Had we known it was the last time we would see Dennis, we would have canceled the speaking engagement. Yes, he meant that much to us.

We live a mere two to three blocks from the Central Iowa Health Care System, known to most people as the Veterans Hospital in Des Moines. He was at the Hospital to have some treatment and decided to drop by and take us out to lunch – his treat. He looked pretty good. We were sure we would see him again. However, hindsight tells us that he was there to say goodbye. We didn’t get the hint, even though he told us what was wrong with him – Stage 4 cancer. Stephanie and I learned an extremely valuable lesson from this: friends are more important than events. Besides, one of us could have handled the speaking engagement while the other went to lunch with Dennis. But he understood. He was a proud man; but was humble in an altruistic way. He hugged each of us in our front yard as we parted. Stephanie got three hugs.

I originally met Dennis over the phone. I was working for the Iowa Civil Liberties Union in the mid-1990s when the executive director came up with a plan to find a new breed of directors for the board. We would advertise in the newsletter to see if any ACLU members in Iowa would like to come forward and be considered for nomination to the state affiliate’s board of directors. We received a few inquiries, but only one followed through – Dennis. I called to find his level of interest. Interesting, indeed.

We became good friends the minute he showed up for his first board meeting. He told me that he wanted to be the President of the ICLU someday; that he wanted to be the state affiliate’s representative on the ACLU National Board; and that he wanted to be appointed to the Iowa Civil Rights Commission. Dennis was a man who got things done. He accomplished all but the latter. And he wasn’t finished. After a few years, he wanted to be the President of Iowans Against the Death Penalty. He did that and recruited most of the board members.

But Dennis was more than an overachiever. He was a prolific fundraiser. Unlike most people, he enjoyed it. He traveled the state raising funds for the operation of the Iowa Civil Liberties Union. And put an emphasis on raise. He could take a $500-a-year donor and make them a $1500-a-year donor in a matter of minutes. I witnessed him raising a yearly contribution of $500 to a whopping $10,000 two-year commitment. He didn’t ask for money and head out the door. No, he visited, and he talked about civil liberties, the board, the staff, and a touch of politics. He was interested in the donor’s family. He provided feedback to the organization, which was always significant to establishing a close relationship between benefactor and recipient.

He held a session in which he taught the rest of the board members how to compete with him, and he began with Maslow’s triangle of hierarchy. It was weird, but effective. Under his leadership, goals were set thousands of dollars above what anyone thought was realistic. Yet, he managed to achieve each and every goal that was set while he was in a position of leadership. He just couldn’t get appointed to the Iowa Civil Rights Commission.

He gave me a letter to edit once. It took two days, a thesaurus and dictionary to get the job done. I sent him a letter once, not to edit, but to read. He returned it with editorial remarks. One thing that solidified our friendship was the fact that neither of us left a dangling participle or ended a sentence with a preposition.

I will miss him.

Dennis Barnum died on Wednesday, September 3, 2014 at Trinity Regional Medical Center in Fort Dodge, IA. He was 80 years-old. He got things done!

 

 

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Where Have All The Fireflies Gone?

Posted on August 22, 2014 by Marty Ryan

webeagleIt began with a simple question: Where did all the lightning bugs go? Some people call them fireflies. Anyway, I have yet to see one this year. Looking back, it’s been quite some time since I’ve seen one.

The answer will come later. But the simple question led to research, of course. As with some research we conduct, we got off on a tangent. One website led to another and before you know it we were at the National Wildlife Federation’s site. The NWF was founded by Iowan Jay “Ding” Darling in 1936. Our recent knowledge of the fragility of the environment drew our attention closer.

Stephanie read Silent Spring by Rachel Carson last spring. I began reading it earlier this summer. It has been instrumental in our commitment to not using chemicals on our yard and garden. Another catalyst in not using chemicals has been the loss of tomatoes, apples, green and wax bean plants, strawberries and several other fruits and vegetables eaten by deer, birds, squirrels, raccoons, opossums, woodchucks and other species of birds and mammals. Nothing touches the zucchini.

Since we have refrained from chemical activity we have noticed an influx of bees and butterflies (especially Monarchs) in our yard. Refraining from chemicals (maintaining sustainable gardening) is one of the criteria necessary to be designated as a Certified Wildlife Habitat. Other requirements are providing food and water for wildlife. Thanks to a thoughtful FL&R subscriber, we already have a few native prairie plants, many different types of berries, and several trees that provide food for animals.

We lacked a water source on the premises, but that didn’t stop Stephanie from creating a handmade birdbath and puddling areas for butterflies. A project we’ve had in mind for the past few years is a combination butterfly/rain garden. We’re going to begin working on that project this fall and through the winter.

We laughed when we saw the requirement that you have to provide cover for wildlife. We never intended to have that amenity for wildlife, but this spring a rabbit produced two litters of bunnies in our bean patch. Our bean patch is actually located in a 2×8 box of treated 2×12’s, and a nesting box is a qualifier for the certificate. We have a pile of branches that is also housing some creatures – probably woodchucks; or, quite possibly, another family of rabbits. The dog knows there is something in there.

We applied to be a Certified Wildlife Habitat through the NWF and have received our certification:

HabCert
In a few weeks are to receive a sign that designates the backyard as a certified wildlife habitat. We can hardly wait. If your yard or apartment meets the qualifications, you can get one, too. Go to: http://www.nwf.org/pdf/Certified-Wildlife-Habitat/CWH-application_0810.pdfhttp://

We do have some amazing photo opportunities. However, most of what we see remains in our memories. I never knew what a hummingbird looked like. Now, it’s a weekly occurrence. Once a year I will see a blue marten or more, and there isn’t a marten house in the neighborhood. When I first moved to this house, an owl flew onto a branch of a dead apple tree not far from where I stood on my deck. Cardinals are permanent residents of our backyard. I’m beginning to learn the names of birds I have never seen before, or more correctly, never noticed before.

With all the wildlife in this neighborhood, I’m still missing lightning bugs. Lightning bugs don’t exist in urban areas. They’re fading away from rural areas as well. There is too much light pollution, chemical application, and development. After living most of my life in small town Iowa, I saw my share of fireflies. It took a long time to realize I wasn’t seeing them, and hadn’t seen any in a very long time.

They say you can’t go home again. Heavy sigh!

http://www.examiner.com/article/lightning-bugs-and-fireflies-where-have-they-gone-1

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