Friday, October 22, 2010

Powerhouse environmental legal boutiques ravaging US taxpayer funds outside public limelight. Polar bears merely props in a mafia-like scandal

Most US taxpayers are unaware this is going on. The so-called Center for Biological Diversity filed 565 lawsuits from 2000-2009 and offers secrecy to its donors, ie rich donors need not be disclosed.
"During harsh economic times, rancher Karen Budd-Falen reached the breaking point on a day last fall. Falen had read about a huge court settlement the
  • Federal Government paid out to a non-profit environmental group and after talking to the ranchers in the Western Legacy Alliance, it set her off.
Falen channeled the frustration into a quest; she wanted to know how much money the Federal Government had paid out in lawsuit legal fees over the past decade and what she found is astounding.
In just six years non-profit environmental groups filed more than 15-hundred lawsuits and in turn the
  • Federal Government paid out more than $4.7 billion in taxpayer dollars in settlements and legal fees in cases against the U.S. government.
Between 2000 and 2009, Idaho's Western Watersheds Project out of Hailey filed at least 91 lawsuits in federal district court with 31 appeals in federal appellate court according to Falen, who not only is a rancher but a former Department of Interior law clerk. She and husband Frank represent cattlemen in range issues throughout the west.
  • Falen often wondered how tiny non-profit organizations like Western Watersheds could afford an attorney like the famed Laird Lucas of Boise who is known as one of the best natural resource attorneys in the country.
"We tried to track the fees paid to environmental groups in certain federal courts. These guys are charging between $350 and $450 an hour in legal fees." Falen says the Federal government is picking up the tab and adds: "In Federal District Court in Boise, over the last ten years, WWP received a total of $999,190 in tax dollars for 'reimbursement' for attorney fees and costs."
  • "We've had a lot of litigation with WWP," said Assistant U.S. Attorney Mark Haws of Boise. "We've had a lot of cases with them and they have prevailed on cases and been awarded Equal Access to Justice Attorney fees. I don't have a total, but that amount wouldn't surprise me."
"It's atrocious, as a private operator I can't gather that kind of money to fight anything like that," said rancher Ted Higley of Malta, Idaho. "If they're going to fight personal causes it should be with their personal money,
  • not government money."
Falen's research shows that of the cases filed by Western Watersheds in Idaho's Federal Court, 19 went before Judge Lynn Winmill; eight resulted in decisions on merit with WWP prevailing with total attorney fees awarded to the tune of $746,184; six of the cases were settled by the feds paying of $118,000.
WWP lost six cases but still managed a payday in two cases, but the payment amount is confidential. Falen's findings show a pattern:
  • there's a payday in court, win or lose or draw.
"I'm not going to point fingers at WWP but there are organizations out there that are just sitting there scrutinizing, watching every decision an agency makes waiting for that 'low hanging fruit' to jump on - just to get fees," said U.S. Attorney Mark Haws.
"Nonprofit, tax exempt groups are making billions of dollars in funding," said Falen. She says
the majority of this legal fee money is not going into programs to protect people, jobs, wildlife, or endangered species but
  • to fund more lawsuits from non-profit environmental groups.
Farmers and ranchers that struggle to make a living off the land are forced to spend money out of their pocket to defend themselves; that's what happened to ranchers Tim Lowry and Paul Nettleton of Owyhee County.
The ranchers successfully defended a decade-long fight for water rights on their land against the BLM.
  • The Idaho Supreme Court ruled on their side in a precedent setting case but the
U.S. Supreme Court denied them attorney fees under EAJA from the government because the decision came in state court.
That left the ranchers with a $1.5 million legal bill from a case in which
  • the Federal Government dragged them into court.
"There's a lot of a things wrong with this picture," said Falen. "The federal government is spending billions in taxpayer dollars
without any accounting of where the money is going or to whom it is going.
There is no oversight in spending this money, especially the money that's coming out of agency budgets that

Falen's research shows that between 2000 and 2009, Forest Guardians (NKA as WildEarth Guardians) filed 180 lawsuits in federal district courts with at least 61 appeals in the federal appellate courts; during the same time frame the
  • Center for Biological Diversity filed at least 409 lawsuits in the federal district courts with at least
  • 165 appeals in the federal appellate courts.
In addition she found over the past 15 years that the Wilderness Society filed 149 federal court lawsuits, the Idaho Conservation League filed 69 lawsuits, the Oregon Natural Desert Association filed 58 lawsuits, the Southern Utah Wilderness Association filed 88 lawsuits and the National Wildlife Federation filed an astonishing 427 federal court lawsuits.
  • Falen says she found cases in which the Federal Government paid legal fees for both sides of a case -
  • just so they could turn around and sue the federal government
  • who in turn will force ranchers off the range.
In 2001 the Western Watersheds Project sued Verl Jones of Challis
  • claiming that the rancher violated the Endangered Species Act by
diverting water from a creek on his ranch to irrigate an alfalfa field, killing endangered bull trout. Federal District Court Judge Winmill ordered Jones to stop diverting water, which cut into the family's hay production and
  • nearly bankrupted the ranch.
But the harshest blow came when Jones was ordered to pay $36,000.00 to Watershed's attorney Laird Lucas. In the end the 9th Circuit Court of Appeal overturned Winmill's decision and the order to pay Lucas, but the
  • family was left with a $50,000 bill from their attorney.
Falen also documented numerous cases in which the federal government agreed to pay attorney fees,
  • but hid the exact amount from public view.
"Somewhere this has to stop and the government has to be held accountable for the money it's spending," adds Falen.
"If you just look at the raw number and say 'why in the world is the United States paying a million dollars bankrolling them to sue us,' well that's what
  • congress set up through EAJA. That's the law,
  • we're bound by it," said Mark Haws.
"My firm did this because it makes me so mad," said Falen. She agrees with Haws, these
  • groups have mastered the art of filing suits and
collecting taxpayer money from the Federal Government by "prevailing" in litigation.
They can prevail either by winning the case on the merits
  • or
by the Justice Department agreeing that the group "prevailed" in a settlement.
The main funding source is called the "Judgment Fund." It's a Congressional line-item appropriation that's
  • used for Endangered Species Act cases,
Clean Water Act cases, and with other statutes that directly allow plaintiffs like Western Watersheds to
  • recover attorney fees just by filing, even if there's no hope in winning.
"I wish we could get a payday just for showing up," said rancher Ted Higley. Falen uncovered six years of paydays for 'non-profit' lawyers, she found:
In fiscal year 2003, the federal government made 10,595 individual payments from the Judgment Fund to federal court plaintiffs for a price tag of $1,081,328,420.00.
In 2004, the federal government made 8,161 payments from the Judgment Fund for $800,450,029.00.
In 2005, 7,794 payments were made from the Judgment Fund for a total of $1,074,131,007.00.
In 2006, the federal government made 8,736 payments from the Judgment Fund for $697,968,132.00.
In just the first half of fiscal year 2007, the federal government made 6,595 payments
  • from the Judgment Fund for $1,062,387,142.00.
In total, $4,716,264,730.00 (that is billion with a "b") in total payments were paid in taxpayer dollars from the Judgment Fund from 2003 through July 2007 for
  • attorney fees and costs in cases against the federal government.
Falen says another major source of payments to "winning" litigants against the federal government is the Equal Access to Justice Act.
Equal Access funds are taken from the "losing" federal agencies' budget. So if the BLM loses a case in Federal District Court attorney fees are paid from the "losing" BLM office's budget.
"That's money that could be used for range improvement, habitat enhancement, timber projects, and archeology and cultural clearances and other agency programs," adds Falen.
Between 2003 to 2005, Region 1 of the Forest Service (Montana, North Dakota, northern Idaho) paid $383,094 in Equal Access to Judgment fees.
Between 2003 to 2005, Region 2 of the Forest Service (Wyoming, South Dakota, Colorado, Nebraska, Oklahoma) paid $97,750 in EAJA fees.
Between 2003 to 2005, Region 3 of the Forest Service (Arizona, New Mexico) paid $261,289.85 in EAJA fees.
Between 2003 to 2005, Region 4 of the Forest Service (southern Idaho, Utah, Nevada) paid $297,705 in EAJA fees.
Between 2003 to 2005, Region 5 (California) of the Forest Service paid $357, 023 in EAJA fees.
Between 2003 to 2005, Region 6 (Washington State, Oregon) of the Forest Service paid $282,302 in EAJA fees.
Out of the 44 total cases in which the Forest Service paid EAJA fees between 2003 and 2005,
35 payments went to ‘nonprofit' environmental group plaintiffs."


Saturday, October 09, 2010

SatelliteGate: 'US agency faces courtroom climate showdown.' By 'US Agency' that could mean the Postal Service as well as NOAA...

  • US taxpayer supported public employees at NOAA operate under the same structure as those of the post office. Which is at best, no accountability.
10/6/10, Climate Realists guest contributor John O'Sullivan: "The controversy over ‘Satellitegate’ hots up as NOAA faces a court appearance for refusing to release evidence that would show whether one or more US satellites exagerrated global warming temperatures.

The National Oceanic and Atmospheric Administration (NOAA) is a federal agency focused on reporting the condition of the oceans and the atmosphere. When the story first broke NOAA bizarrely announced it would withdraw satellite ‘images’ from its archives but
  • failed to state whether reams of cooked data had also been withdrawn.
An official US Government statement last July confirmed that the NOAA-16 earth orbiting satellite used to measure surface temperatures suffered failure due to a “degraded” sensor system. But skeptics now fear that because government climate scientists won’t answer any more questions or reveal the discredited data archives they may be guilty of fraudulently cooking the books to show super boiling temperatures.

The story broke after an anonymous member of the public contacted a skeptic blog when he stumbled across thousands of alarming readings on a government website. The website showed thousands of surface temperatures of over 400 degrees fahrenheit. Dubbed Satellitegate the shocking revelations proved that all such bogus data had been fed automatically into data banks that the US Government then sold all over the world.

As proprietary temperature data products the junk numbers were used by domestic and international weather and climate researchers. Fears are growing that the junk data may have contaminated scores of climate models worldwide and
  • artificially increased average global warming records by several degrees.
In the three months since the story hit the news NOAA still hasn’t come clean as to the true extent of the data contamination. Now it may be necessary for lawyers to file an official Freedom of Information request (FOIA) to compel the government, under federal legislation, to stop the cover up and reveal the truth.

US Government Has History of Breaking Law over Satellite Failures

This won’t the first time NOAA has cynically broken the law to hide embarrasing satellite problems. In 2008 became embroiled in a similar FOIA confrontation- see ‘NOAA Stonewalls on DCSOVR Documents.’ It is believed that the DCSOVR satellite costing over $100 million may be cannabalised to destroy incriminating evidence that NOAA and NASA were conspiring to prevent the launch of that satellite because it would prove the numbers from other such sources were fake.

As reports, “DSCOVR is designed to view the planet from the unique vantage point of one million miles distant, and according to leading researchers would immediately settle any remaining debate on the origins or seriousness of global warming.”

Degraded Climate Data Knowingly Sold for Over Five Years

Among the questions NOAA still hasn’t answered are: (1.) how long did NOAA knowingly sell to its network of international customers (mostly government weather and climate researchers) ‘degraded’ data and, (2.) why was no action taken until the story caused a public outcry five years after prominent climate researchers first made the faults known?

Sadly, some commentators on this issue omit to consider that it is common practice in corruption cases for conspirators to shroud their malevolence in the cloak of incompetence. To be fair to the commentator in question he has since publicly conceded, “But, I don’t know the full story.”

How the Law Addresses Corruption

Too often, those with little or no legal experience fail to address whether the alleged perpetrators have the means, motive and opportunity to engage in such conspiratorial acts. Willful ignorance of the facts and/or the law are recurrent themes in government corruption cases on which I’ve worked in both the UK and New York.

Courts must look for the mens rea (guilty mind) component of the wrongful act in conjunction with the actus reus (the rotten deed itself) otherwise, quite rightly, they will never convict.

Lawyers defending the indefensible will often resort to that hoary old chestnut of applying the “merely negligent” gambit to get government workers off serious charges. I have heard endlessly over the years from defense attorneys that we should “never presume malice where simple incompetence will do.” To the raw, untrained eye it often works.

Indeed, there is no prerequisite to doubt such an affirmative defense when there is the absence of any pattern of “error” because it is that pattern of repeated errors that leads to the guilty. What becomes apparent in good fraud cases is that the evidence always displays a pattern- a predictable sequence-
  • of “errors” that go way beyond mere chance.
The Question that NOAA Still Won’t Answer

What makes the Satellitegate controversy so intriguing are three simple questions:
  • 2.Why were such “errors” only acknowledged by the US government when the story became big news?
  • 3.Why won’t NOAA answer my follow on questions and release all the facts?
Invariably, apologists for science fraud often refer to systemic “errors” as nothing more serious than simple laboratory “selection bias” - and it sure is! Those involved only see what suits them.
  • However, as we have seen in correspondingly substantial frauds (e.g. multi-billion dollar Madoff scandal and sub-prime mortgages) such “error” bias profits the individual or the organisation that crunched the numbers.
When that link between conscious act and subsequent gain becomes clear then it constitutes criminal fraud. Often when such cases are proved you’ll hear those same sanctimonious words uttered by apologists, “lessons will be learned” and they sure are - particularly lessons as to how best to mitigate being caught in the future!

How Self-preservation instinct leads to Conspiracy to Commit Fraud

As I have seen in courtrooms, many middle ranking officers, those loyal lieutenants, often rally behind the misdeeds of their superiors because they are clearly motivated by misplaced self-preservation in a process of ‘CYA.’ You “cover your ass” and concomitantly, by such a survival strategy you also cover the behinds of colleagues by wagon circling as a group. You know full well that your undoubted strength in numbers increases your own personal chances of avoiding censure/prosecution.

So how do anti-corruption specialists prove malfeasance/fraud under the civil burden of “the preponderance of the evidence?” Well, ultimately we need to demonstrate a good probability that X , Y or Z are unlikely to be merely incompetent time after time when their repeated errors favor only one outcome as opposed to a random one.
  • When it becomes statistically improbable that such “errors” could be down to chance alone, that’s when a jury convicts.
What those without legal training also often fail to grasp are two key concepts that courts must address that may be fatal for those implicated parties:
  • (i)Omission-conscious failure to positively remedy a known error is malfeasance and may thus constitute conspiracy to commit fraud;
  • (ii)Loss or destruction of evidence by any party subject to an FOIA constitutes evidence abuse which is dealt with by the spoliation doctrine (i.e. the offending party is sanctioned under law because the law states that a party shall be punished when it ought to anticipate legal proceedings-thus securing conviction by default judgment).[1.]
The worst evidence of hyper-inflated global warming data that I found was on a web page entitled, ‘Michigan State University Remote Sensing & GIS Research and Outreach Services.’ When I contacted NOAA for further information I was denied by their lawyers. Is this necessary if we are talking about a non-problem over trivial errors of data no one uses? Does that smell of negligence or more of fraud?
  • Taxpayers have a right to know what evidence has now become conveniently “lost” or destroyed.
NOAA and MSU have effectively blocked further access to all associated data preventing my associates and me from analyzing it to identify if there is any case to answer. We merely want NOAA to address the following:
  • 1.Since removing ‘images’ from their archives has NOAA or its Sea Watch partners taken steps to also remove infected ‘data’ from their archives?
  • 2.When did NOAA/Sea Watch Partners first know of this problem?
  • 3.Has NOAA and/or Sea Watch partners ascertained the scope and extent of this data error and what action (i) has been (ii) will be taken to avoid any further recurrence?
  • 4.Has NOAA/Sea Watch partners identified whether satellite data temperature anomalies impact other data sets and findings including global climate models?
  • 5.Why has NOAA sinisterly removed all entries for the NOAA-16 subsystem log about the satellite’s health and performance from 2005 onwards when such entries were cleared displayed online up to the date of my first ‘Satellitegate’ article?
  • 6.Were there errors also made in the NOAA-16 subsystem log that is a totally unconnected process to that of the degraded sensor.
  • 7.Will NOAA preserve/provide my investigators and me with the details of all the aforementioned data no longer displayed online, plus all associated data that may be relevant to investigations into the ‘Satellitegate’ controversy?
  • 8.Does NOAA continue to feed automated ‘degraded’ satellite data into its proprietary products that are bought by weather and climate researchers around the world?
  • 9.Why has NOAA not given any official notifications to (i) it’s paying customers and (ii) the public via its website/publications of the NOAA-16 faults despite Drs. Roy Spencer and John Curry making it known since 2005 that data was no longer reliable?
What Are the Public Left to Think Now?
As any competent government corruption attorney will tell you, repeated errors constitute malfeasance when a continuous and unrelenting omission to address a known sequence of data ‘degradations’ can be judged to be nothing short of a conscious and willful act.

Moreover, when there is also the intentional failure to divulge the evidence that would prove conscious intent not to correct a fault in your favor then that is also proof of fraud. Thus, a group of those who knew of the errors and collectively and consciously failed to act are as guilty of conspiracy to defraud as those who perpetrated the original wrong.

Bankers have been jailed for less, why aren’t climate scientists?

[1.] Koesel, MM; Turnbull, TL; Gourash, DF; ’Spoliation of evidence: sanctions and remedies for destruction of evidence,’(2006), American Bar Association. "

via Climate Depot