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FEC fines Sierra Club

By Jim Snyder
The Hill


A Federal Election Commission settlement with the Sierra Club will likely put new limits on how explicit outside groups may be when trying to influence voters.

The environmental group agreed to pay a $28,000 fine to settle charges that it had paid for a brochure that expressly advocated the election or defeat of candidates in the 2004 presidential and Senate races from its corporate treasury.

Because the Sierra Club brochure was found to contain express advocacy, it was determined to be an independent expenditure.

Campaign finance laws prohibit money from a corporate treasury to pay for independent expenditures.

FEC Chairman Michael Toner described the settlement as “one of the most important express advocacy cases the commission has resolved in recent years.”

The settlement provides a bit more clarity to a Supreme Court decision, McConnell v. FEC, that found that the definition of what constitutes express advocacy goes beyond so-called “magic words,” such as “vote for” or “vote against.” That had been the previous standard used.

By Chris Thew
The Chronicle staff


     State Senator Bob Morton, R-Orient; Rep. Joel Kretz, R-Wauconda, and Rep. Bob Sump, R-Republic, called on NOAA Fisheries to extend the comment period on the federal agency's revised version of the upper Columbia salmon recovery plan Nov. 8.
     The plan is being prepared by the Upper Columbia Salmon Recovery Board and NOAA Fisheries to address recovery of the endangered spring run Chinook, endangered steelhead and threatened bull trout.
     In 2001, the state Legislature authorized regional salmon recovery planning as a means of involving residents and policy makers in the recovery of salmonid species listed under the federal Endangered Species Act.
     The completed plan will apply to the Moses Coulee, Wenatchee, Entiat, Methow, Okanogan and Foster Creek sub-basins.
     During a NOAA meeting in Okanogan, the legislators asked that the comment period be extended at least until Jan. 30, 2007. Bonnie Lawrence, Okanogan Resource Council chairwoman, also called for a 60-day extension on the comment period, which ends Nov. 28.
     "Forgive us if it doesn't set our minds at ease to know that NOAA Fisheries chose to co-author our plan," wrote the legislators. "All we know is that your staff has now hijacked our 'local plan,' and if allowed to stand, (it) will be to the detriment of our local economy, private property and way of life.
     "We have a much different take on 'encouragement' when one agency like yours holds all the cards - it's called blackmail and third-party lawsuits," wrote the legislators.
     UCSRB-contracted biologists Tracy Hillman and Chuck Peven talked about the history of the plan and talked about the logistics of how any progress would be monitored.
     "The plan cannot work without considering people and fish," said Pevin. "It's got to be biologically and technically sound but it's got to consider the regional and local culture's social and economic values of the people.
     "It cannot be accomplished just through legislation in rules or even money," he continued. "It's got to have local support, in other words. It's got to share the burden and that doesn't mean share the burdens just within this valley. It means share the burden everywhere the fish are affected."
     Peven explained how the scientists came up with figures for salmon recovery.
     They used facts, based on empirical science "when we had it, but we didn't always have empirical science."
     Otherwise, they tried to get by local knowledge and professional judgment."
     Hillman, Peven and NOAA Fisheries assistant regional administrator Rob Walton balked at questions of whether the plan would be regulatory and gave personal opinions, but gave no confirmation from NOAA that landowners would not be required to submit to actions and would be allowed to say no once the plan is finalized.
     Morton was upset with the representatives from the recovery board and NOAA.
     Morton questioned why actions were needed if fish return numbers for each of the past five years were higher than counts in the 1930s. Morton also questioned how biologists could consider fish different, based on when they showed up at the spawning ground.
     "We count them on the spawning grounds on the appropriate timing period," said Peven.
     Morton asked when counts were done on salmon.
     "Senator, if you're asking me, I can't tell you, but it's all in the plan," said Walton, whose comment was followed by laughter from the crowd.
     Morton then asked the dates of just Columbia River spring Chinook.
     "It doesn't matter what date we set that they pass the dam, because that's not what we base all of our analysis on," said Peven. "We base our analysis on going to the spawning grounds and observing the fish in the appropriate areas where the fish spawn during the appropriate time. It's arbitrary when the fish pass the dam."
     Morton pulled out a letter he received from the state Department of Fish and Wildlife that said spring Chinook counts at Bonneville Dam begin Jan. 1 and run to June 15, summer Chinook run from June 16 to July 31 and fall Chinook run from August to Dec. 31.
     "When we count our calves, we count them the whole year," said Morton. "This is what they refuse to recognize."
     Morton said the biologists needed to consider all Chinook salmon as Chinook salmon no matter the date they show up to spawn.
     "We can't comment on these sort of shenanigans that are going on up here, we just can't," said Morton. "The foxes are in the hen coop and they're telling us how they're going to monitor for more chicks. I don't buy it."
     Morton again called on Walton to ask NOAA regional administrator Bob Lohn for additional time to review the 1,400-page document.
     Rep. Joel Kretz, R-Wauconda, said he was upset with the way the NOAA officials are treating the concerns of landowners.
     Hillman, one of the plan's writers, smirked when many members of the audience challenged the agency's stance that the plan was written with the best available science.
     "I'm seeing arrogance, I'm seeing no interest in answering our questions," said Kretz. "How bad do they want you guys to know what's going on? I don't think very bad. It's pretty unacceptable I think."
     Kretz asked Walton, Hillman and Peven if the plan was really voluntary and non-regulatory.
     "Will this plan put us out of jeopardy? My opinion is no," said Kretz.
     Kretz noted a line in the recent Federal Register in which NOAA writes: "Upon approval of a final plan, (National Marine Fisheries Service) will make a commitment to implement the actions in this plan for which it has authority to work cooperatively on implementation of other actions and to encourage other federal agencies to implement plan action for which they have responsibility and authority. NMFS will also encourage the State of Washington to seek similar implementations and commitments from state agencies and local government."
     "What do you think that means?" asked Kretz. "They're going to encourage anything they don't have the regulatory ability to regulate. They're going to encourage state and local."
     "Land use actions on the local level are supposed to be controlled locally," said Kretz. "In my opinion what we're looking at here is the federal government coming through the back door through blackmail, just to be blunt.
     "It's a threat," he continued. "If you don't do it, we'll be forced to do something worse. Or if you're not participating and giving away your rights, you'll see something worse.
     "I don't see that as a reason to go ahead with something. I don't think this is voluntary," he said. "It's clearly regulatory and it's the step of getting local government to give away the protections for your private property rights that have to remain local and you're going to be looking for permits in Okanogan County and you're going to be asking the feds for them."
     Kretz questioned why the Colville Confederated Tribes, Yakama Nation and Douglas County were being included in the salmon recovery board when no recovery will be required of the three groups.
     "It's not going to be enforced on the tribes," said Kretz, noting the plan would be enforced on Okanogan and Chelan counties.
     Kretz called for more time, but then said it was probably too late to fix problems with the proposed plan.
     "I just think its time to say no to this thing," said Kretz, which brought applause. "I've tried to be civil the last five or six years, but I'm right at the end of my rope. I don't think there's any reason to be nice about this any longer.
     "If it goes forward, let it be their plan, but don't call it ours," said Kretz. "I think it's real critical. I think there's ways to oppose a federal plan, but if it's our plan and our local government signs off on this, the horse is out of the barn at that point and I don't think there's any way of getting it back."
     Walton said he would ask Lohn for a document describing the implications to landowners and provide it to the recovery board.
     "When we went down there last time, he wouldn't answer that to our face. What's changed now?" asked Kretz, referring to a visit by the three legislators last year.
     Walton, who has worked for NOAA Fisheries for three years, said his personal opinion was that the federal government would not trample on landowner rights.
     "The federal agencies are not in a position to come in and take your land in this situation," said Walton. "It's inconceivable to me personally, in my own opinion, that the federal government would come in and use anything like eminent domain or something like that to take private land. That's just not in their equations for endangered species."
     "It is in your document," shouted Shelly Short, Kretz's legislative assistant. "It says that if you don't accept these things that you want implemented, then you will go to (the Endangered Species Act) and force it."
     "I'm not sure there's anything I could say that would comfort you that we're not going to come in and do the things you're worried we're going to do," said Walton. "I don't personally think that the federal agencies under this administration for sure are going to come in and take your private property. I just don't see it."
     Okanogan County commissioner Bud Hover asked if Walton could say that landowners could decline actions.
     "If you're asking about a voluntary portion of this plan, the answer is yes," said Walton. "Absolutely, they can decline."
     Walton's comment drew calls from the audience on what part of the plan was voluntary and which was not.
     "This plan is supposed to be a roadmap to recovery. It's not going to force you, in my opinion, to do something as a private landowner," said Walton.
     Hover again asked for Walton to say whether landowners would be forced into actions.
     "Can the landowner decline to participate?" asked Hover.
     "Yes," said Peven.
     Walton told the crowd that the group probably should get together again to discuss concerns with the plan.
     "I understand that's your concern, your suspicion, your worry," said Walton. "We've been telling you for months that this is not enforceable. Our lawyer says it, our boss says it; you don't believe us."
     No decisions have been made on whether NOAA will allow for additional time for comments.
     Written comments and materials can be sent to Lynn Hatcher, National Marine Fisheries Service, 304 S. Water St., Ellensburg 98926. Comments can be submitted by e-mail to UpperColumbiaPlan.nwr@noaa.gov with a subject line of "Comments on Upper Columbia Salmon Plan" or by fax to (503) 872-2737.
     Copies of the plan are available online at www.nwr.noaa.gov/Salmon-Recovery-Planning/ESA-Recovery-Plans/Draft-Plans.cfm or okanogancounty.org/planning/salmonlrecovery.htm.
     Copies on disc can also be requested by calling Carol Joyce, (503) 230-5408, or by e-mailing carol.joyce@noaa.gov.
     More information is available from Lynn Hatcher, NMFS interior Columbia salmon recovery coordinator, (509) 962-8911 Ext. 223, or Elizabeth Gaar, NMFS salmon recovery division, (503) 230-5434.




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