Jerry Brown

A scar is born

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› johnny@sfbg.com

What does Gary Indiana think of Obamamania? I have to ask, because Indiana is a peerless dissector of contemporary American political symptoms. The evidence includes his blistering appraisal of Jerry Brown’s blank gaze and sun-scorched face and other facets of the 1992 presidential campaign in Let it Bleed: Essays 1985-1995. Or more recently, the combination of laugh-out-loud descriptive power and pointed investigative fact (as opposed to typical journalistic trivia) in 2005’s The Schwarzenegger Syndrome: Politics and Celebrity in the Age of Contempt, a petite volume that somehow manages to depict the 2004 Republican National Convention, for the record, in words that do full justice to that historical event’s baleful hilarity and bottomless horror.

Indiana might be best known today as a novelist whose inspirations have ranged from pre-Disney Manhattan junkies and hustlers to jaundiced, post-In Cold Blood original fakes such as Andrew Cunanan and homicidal con artist and subconscious Liz Taylor impersonator Sante Kimes. Clearly this is a man who has something to say about American delusion, and the new Utopia’s Debris: Selected Essays (Basic Books, 320 pages, $28.95) includes a few brief but scathing riffs on the theme. "Kindergarten Governor" renders the 2003 California gubernatorial recall with great flair — the "aptly named" Gray Davis is likened to an "an especially depressive funeral director"; Arianna Huffington is tagged "inestimable" — while tracing the effort’s birth back to criminal business dealings in an office behind a Krispy Kreme in Sacramento. "The Excremental Republic" provides a sensible, revealing, and thus utterly unique reading of Bush vs. Gore and its impact.

Organized into five parts, beginning with the Nico-quoting "Desertshore" and ending with the title section, Utopia’s Debris collects Indiana’s journalistic writings, which are reliably several flights above almost all prose found in newspapers and magazines today, while never once stiff or pretentious. Quite the contrary: Indiana’s ever-active bullshit detector makes for the opposite of PR pablum, even when he flirts with the sin of log-rolling by sending a little textual love his to his frequent book jacket contributor Barbara Kruger (a better writer than artist, in my opinion), paying tribute to actress (and friend) Bulle Ogier, or eulogizing another close ally, Susan Sontag. To say Indiana is a writer who welcomes argument is an understatement. When he refers to one published eulogy as a "fulminating, hateful dismissal of Sontag’s entire lifework," his own hateful dismissal of the late Pauline Kael in Artforum — complete with a memory of himself and Sontag raiding a newsstand for a fresh opportunity to mock Kael’s writing does spring to mind.

As its name suggests, the pleasures and the value of Utopia’s Debris stem partly from the manner in which Indiana organizes these short examples of writing for a paycheck. In a one-two punch, an assessment of presidential election thievery ("The Excremental Republic") is followed by a look at the cultural relevance and role of Jacqueline Susann’s Valley of the Dolls ("Uberdolls"). A posthumous look at Leni Riefenstahl and her last years (checkout this whiplash truth: "[She’s] relaxed, genial, reflective in an undefensive way, and genuinely likable. Rather like the giant toad who has, at last, eaten its fill of flies and can’t see any buzzing in her immediate vicinity") arrives shortly before his tribute to Sontag, who famously attacked Riefenstahl’s fascist aesthetics. The book’s final roll call of subjects — Robert Bresson, Georges Simenon, Brecht, and Weill as filtered through Harry Smith — is vital and dramatically potent.

A lifetime of sharpening sentences like so many knives means that Indiana knows how to write an intro: "You could infer from the production notes that Ang Lee’s Brokeback Mountain would be useful if it came in a spray can. Spritz a little on a fundamentalist and change him into a liberal, or neutralize a whole church of basement of rednecks with a full-strength tolerance bomb." When he detonates explosives by pious pop culture it makes for entertaining reading. But the peak stretches of Utopia’s Debris occur within assessments of a wide variety — Gavin Lambert, Mary Wornov, Caroline Blackwood, Rudolph Wurlitzer, Witold Gombrowicz, Thomas Bernhard, Curzio Malaparte, Jean Echenoz, Emmanul Carrère — of anti-canonical novelists. Through them, Indiana wrestles with his own ideas about life and chosen calling in a manner that is revelatory.

AG Brown’s flip flop will help pro-Prop 8 forces

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AG Jerry Brown’s decision to oppose Prop 8 in the Supreme Court will,
ironically, only help the pro-Prop 8 forces

By Peter Scheer

(Peter Scheer is executive director of the California First Amendment Coalition, a non profit advocacy group.)

The California Supreme Court, in one of its most important cases, is
weighing a challenge to Prop 8, the constitutional amendment banning
gay marriage. If the Court upholds Prop 8, one of the people you can
blame is Attorney General Jerry Brown.

But wait a minute. Didn’t Brown make headlines recently by filing a
brief in the Supreme Court arguing that Prop 8 should be overturned?
Yes, he did. And that’s the problem.

In cases before the Supreme Court, it is the Attorney General’s job
to defend California’s laws unless they are so plainly invalid that
no plausible defense can be offered. However objectionable on moral
grounds, Prop 8 is not legally indefensible. Brown knows that. By
switching sides in the Supreme Court, the Attorney General ripped up
his job description–a political gambit that no doubt pleases his
supporters but, ironically, only makes it harder for the Court to
overturn Prop 8.

The California Supreme Court is in a tough spot in the Prop 8 case.
It went out on a limb a year ago to strike down a state statute
forbidding same sex marriage, ruling that the law violated
California’s constitution. Prop 8, which voters enacted by a margin
of 52% to 48%, responds directly to that controversial decision by
amending the state constitution, thereby removing–or attempting to
remove– the basis for the Court’s prior ruling.

The current Prop 8 case poses a test of the Court’s legitimacy, its
most valuable asset, at a crucial moment in its history. The Court is
the only institution of California government that is seen as able to
take on hard issues, to decide them in the public interest, and to
act decisively. Although its authority has never been greater, that
authority derives from the public perception that the Court is above
the political fray.

Should the Court strike down Prop 8–overriding an electoral majority
for the second time on the issue of same sex marriage–it must do so
for reasons that are seen as legitimate and legally convincing, even
though most Californians may disagree with the outcome. The Court
must avoid the appearance that it is asserting a political preference
disguised in legal principles. That is a tall order.

In this context the last thing supporters of gay marriage need
is a grandstanding attorney general who, by abandoning his assigned
institutional role, creates doubts about the fairness of the Supreme
Court proceeding and provides an opening for Prop 8 supporters to
argue that the case has been transformed from a legal to a political
contest in which victory goes to the most powerful interest groups.

Can the Court still overturn Prop 8 in a way that will not compromise
its legitimacy? I think so, although the best course at this stage
may be a ruling grounded in the US Constitution instead of the
California Constitution. Under a federal approach, Prop 8’s
problematic status as a state constitutional amendment loses
relevance: vis a vis the US Constitution’s equal protection
guarantee, Prop 8 is no different than any state statute or city
ordinance.

Deciding the case on the basis of the federal constitution also would
legitimize the Court’s ruling because application and interpretation
of federal law is part of its essential function in the original
federal judicial scheme. Legitimacy also comes from the fact that the
Court’s decision, if based on the federal Constitution, would not be
the last word, but would be subject to review by the US Supreme Court.

Of course, the availability of federal Supreme Court review is also
the main disadvantage of this strategy. Still, the US Supreme Court
might decline to review the case, leaving in place a ruling blocking
Prop 8. Or it could review it and surprise everyone with a decision
overturning Prop 8. (Don’t underestimate the influence of the Supreme
Court’s mostly liberal clerks on the gay marriage issue.)

Let’s just hope Jerry Brown keeps his distance from any further judicial
proceedings. With friends like Brown, Prop 8’s opponents don’t need
adversaries.
——
Peter Scheer is executive director of the California First Amendment
Coalition, a nonprofit advocacy group. www.cfac.org

Politically courageous act of the year

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jerry brown.jpg

By Steven T. Jones

As the year winds down, I’d like to note what I consider to be the most politically courageous act of 2008: Attorney General Jerry Brown’s decision to reverse his position and urge the California Supreme Court to overturn Prop. 8.
This was a deeply principled decision that went against Brown’s political self-interest considering the fact that he’s planning to run governor in a state where a majority has approved Prop. 8. And that political danger was exacerbated by Brown’s post-election statement saying he would defend Prop. 8, as attorneys general are generally required to do, opening him up to the dreaded flip-flopper label.
But his new position is consistent with important constitutional principles (as I outlined in the Guardian almost a month before Brown adopted his new stance) and well-worth taking a gamble to do what’s right, the kind of act that is all too rare in modern American politics.
We’ve seen lots of different Jerry Browns through the years, from Governor Moonbeam to the We The People presidential populist to the tough-on-criminals, easy-on-developers Oakland mayor. Perhaps this act heralds Jerry Brown as the kind of governor California desperately needs right now: someone willing to tell the people “no,” that we can’t have everything we want, that some sacrifice and selflessness and tolerance are needed, that this nation was founded on principles more important than majority rule.

Tap dreams

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› amanda@sfbg.com

On Dec. 2 two water conferences were held in San Francisco, attended by very different groups of people.

Downtown, in a room deep within the Hyatt Regency hotel, executives from PepsiCo, Dean Foods, GE, ConAgra, and other major companies gathered for the Corporate Water Footprinting Conference. The agenda that the conference made public included a presentation by Nestlé on assessing water-related risks in communities, Coca-Cola’s aggressive environmental water-neutrality goal, and MillerCoors plan to use less water to make more beer.

But what these giant corporations, which are seeking to control more and more of the world’s water, really discussed the public will never know. Only four media representatives were permitted to attend — all from obscure trade journals not trafficked by the typical reader — and both the Guardian and the San Francisco Chronicle were denied media passes.

The event was sponsored by IBM, and tickets were $1,500 — out of reach for many citizens and environmentalists who might have liked to attend.

And why might people take such a keen interest in the kind of corporate conference that probably occurs routinely in cities throughout the world?

Because there’s almost universal agreement that the world is in a water crisis — and that big businesses see a huge opportunity in the privatization of water.

Only one half of 1 percent of all the water in the world is freshwater. Of that, about half is already polluted. Although water is a $425 billion industry worldwide — ranking just behind electricity and oil — one in six people still don’t have access to a clean, safe glass of it. If the pace of use and abuse remains, the 1.2 billion people living in water-stressed areas will balloon to more than 3 billion by 2030.

That includes California. On June 4, Gov. Arnold Schwarzenegger declared a statewide drought after two lackluster seasons of Sierra snowfall. Scientists are predicting the same this winter. You can see how the state is mishandling the issue by looking at some recent legislation. Schwarzenegger and Sen. Dianne Feinstein have proposed a $9.3 billion bond to build more dams, canals, and infrastructure. At the same time, the governor vetoed a bill that would have required bottled water companies to report how much water they’re actually drawing out of the ground.

In that context, while the big privatizers were hobnobbing at the Hyatt, activists were attending a very different event, the "Anti-Corporate Water Conference," held at the Mission Cultural Center. It was free and open to the public and the media. More than 100 people gathered to hear a cadre of international organizations share information on how to keep this basic human right — water — in the hands of people.

Speakers included Wenonah Hauter, director of Washington, DC-based Food and Water Watch; Amit Srivastava of Global Resistance, a group that works to expose international injustices by Coca-Cola; Mark Franco, head of the Winnemem Wintu Tribe, which lives among water bottling plants near Mount Shasta; and Mateo Nube, a native of La Paz, Bolivia, and the director of Movement Generation Justice and Ecology Project.

Nube spoke about water as a commons, requiring stewardship, justice, and democracy. "We’re literally running out of water. Unless we change the way we manage, distribute, and consume water, we’re going to have a real crisis on our hands," he said. Nube’s remarks tied together the tensions of control and revolt, democracy and privatization, ecological balance and human need — all enormous issues, all related to water and water scarcity, which the Worldwatch Institute has called "the most under-appreciated global environmental challenge of our time."

BASIC NEED, INFINITE MARKET


Water is a basic human need, perhaps even more important than clean air, food, and shelter. People will never strike against water and stop drinking.

And that means, from a capitalistic point of view, it’s a perfect, nearly infinite market. "As water analysts note, water is hot not only because of the growing need for clean water but because demand is never affected by inflation, recession, interest rates or changing tastes," wrote Maude Barlow in her 2007 book Blue Covenant.

If scarcity drives price, anyone with a stake in the water industry stands to gain from an increasingly water-stressed world. As Barlow also reported, "In 1990, about 51 million people got their water from private companies, according to water analysts. That figure is now more than 300 million." By controlling the resource and choosing when and if they engage with the public it allows some of the biggest water abusers to set the terms of a critical ongoing debate.

The fact that humans need water raises important questions: should water be classified as a basic human right available to everyone? Is water part of the commons? If so, should corporations be allowed to control the taps or bottle it, mark up the price, and sell it for profit?

Not much polling has been done on people’s opinions of water, but during 35 informal on-the-street interviews conducted by the Guardian, 31 people said it is a basic human right. The other four said it was subject to the laws of supply and demand.

This week marks the 60th anniversary of the United Nations Universal Declaration on Human Rights, and Barlow, who has been appointed special advisor on water to the UN, will be addressing the General Assembly on the fact that water is still missing from the original 30 Articles.

"The reason that water was not included in the original 30 Articles in the Universal Declaration of Human Rights is that no one at that time could conceive there would be a problem with water," Barlow told the Guardian. "It’s only in the last 10 years that the concept of water as a human right has come to the fore."

The problem has its roots in the inherent conflict between conservation and profit. Saving water is relatively cheap, but there’s no money to be made by eliminating waste. Developing expensive new water sources, though, is a potential private gold mine.

As Barlow points out in her book, technology is becoming an integrated part of the solution to the water crisis. Desalination plants, water recycling facilities, and nanotechnology are all being thrown at the problem — in some cases before a full assessment of use and abuse has occurred.

While technological solutions may be warranted in some places, Barlow worries that relying on them bypasses any true attempts at efficiency and conservation. "I’m not going to say there’s no place for water cleanup," she told the Guardian. "What I’m concerned about is we’re going to put all the eggs in the cleanup basket and not nearly enough in the conservation and source protection basket. What I’m concerned about is the idea that technology will fix it. Meanwhile, don’t stop polluting, don’t stop the over-extraction, allow the commercial abuse of water, allow the agricultural abuse of water because what the heck, there’s tons of money to be made cleaning it up. I think that’s the wrong way of coming at it."

The technological fix is one way the state’s water crisis may slowly seep into private sector control, and a couple of examples show what can happen when private companies don’t play nice with the public, how citizens constantly battle with state agencies to enforce regulations, and how the public process could and should be honored.

GET THE SALT OUT


In theory, California has plenty of water — its 700 miles of coastline border the giant reservoir known as the Pacific Ocean. But humans can’t drink salt water — and some companies see a nice industrial niche in that dilemma. Build a plant that takes out the salt, and suddenly there’s plenty for all.

Several small desalination facilities already exist throughout the state, mostly cleaning water reservoirs brined by agriculture. But another 30 desalination plants have been proposed for the coast as a way to deal with future water shortages.

One is in Carlsbad, near San Diego, where Poseidon Resources is constructing the only large-scale desalination plant that the state has permitted to date. It’s a 10-year-old project that, so far, doesn’t even have a pipe in the ground.

Despite Poseidon’s ability to grease the wheels with local officials, the facility is controversial. It sits next to a fossil-fuel burning peaker power plant, and will be desalinating the power plant’s discharge water, thus shielding its negative environmental impacts by claiming its the power plant that’s sucking up seawater and damaging marine life — the desalination plant is just making use of the wasted water.

That argument doesn’t sit well with Joe Geever of the Surfrider Foundation, who pointed out that part of the power plant is scheduled for a retrofit to air-cooling, and talk is of a potential state ban on using water for this type of cooling system. There are other more environmentally benign seawater extractions, he said, like drilling and capturing subsurface sources, that the desalination plant could have used.

Mostly, he contends, the plant subverts conservation. "Per capita consumption of water in San Diego is much higher than other places," he said. "In southern California we waste an enormous amount of water on growing grass. There’s a lot to be saved."

Poseidon, a private company, is footing the bill for the plant’s construction, but the financing scheme is predicated on a future increase in the cost of water. As Poseidon’s Scott Maloni explained to the Guardian, the contract with the San Diego Water Authority states that the cost of desalinated water can never be more than the cost of imported water. It can, however, walk in lock-step with it — and by all accounts the price to pipe water to sunny southern California is going to increase. Maloni said his company was taking an initial loss but would start paying itself back as imported water costs increase. Eventually rates will be set halfway between the real cost of desalinated water and the higher cost of imported water.

What kinds of guarantees are there that this will happen? Nobody knows. "They’ll say anything, but when it comes to showing you a contract, we’ve never seen anything," said Adam Scow of Food and Water Watch. "There’s a lack of regulation with a private company controlling the water."

The plant now has no less than three lawsuits hanging over it, all filed with state agencies in charge of permitting and oversight — the Coastal Commission, the State Lands Commission, and the San Diego Regional Water Quality Control Board. All basically contend that the state didn’t do enough to require Poseidon to implement the most environmentally sound technology that’s least harmful to marine organisms, as required by state law.

Geever stresses that desalination is an energy-intensive way to get water. "Every gallon of water you conserve is energy conserved," he said. "Not only could San Diego do more conservation, but they don’t recycle any wastewater to potable water standards. That’s much less energy intensive."

Poseidon counters by saying that it invested $60 million in energy efficiency measures for the plant and will be installing solar panels on the roof. Perhaps most telling is that the company sees itself as vending reliability. "It’s not the current cost of water the San Diego Water Authority is concerned about, but the future cost for an acre-foot," Maloni said. "There’s a dollar figure you can put on reliability. Public agencies are willing to pay us a little more for that."

Which gets back to a comment Barlow made about capitalizing on crisis. "We are frightened half to death and everyone who looks at it, right-wing or left-wing, sees that. … They use the crisis to say we have no alternative except to go into massive desalination plants."

And, as Peter Gleick, president of the Pacific Institute pointed out, San Diego wasn’t calling for proposals to bring it more water. "Poseidon wanted to build a desalination plant and it came to San Diego. That’s one way to do it. The other way is for a municipality to say we want a desalination plant, we’re opening it up to bids, let’s have a competition. That didn’t happen, and instead we have one contractor."

Geever added, "Poseidon has been really successful at lobbying politicians and convincing regulators to give them permits."

Which points to one of the chronic ills of managing water systems, particularly in California where water has always been political. "In the 20th century decisions about water were made by white males in back rooms," said Gleick. "It solved a lot of problems, but it led to a lot of environmental problems. The days when water decisions made in back rooms should be over. And they aren’t over, and that’s part of the problem."

DELTA BLUES


Nowhere is that more obvious than the delta, where the state’s two most prominent rivers — the Sacramento and the San Joaquin — meet the Pacific Ocean just north of San Francisco. It’s ground zero for one of the most charged political fights in the state.

Two-thirds of California’s water comes from the delta. About 80 percent of it goes to cropland, watering about half of the state’s $35 billion agricultural industry, much of it through historic water rights that have been granted to a small lobby of powerful growers who sell their surplus rights for profit. Another 18 percent goes to urban water needs, and — in spite of the fact that this is the largest estuary on the west coast of North and South America — only 2 percent of the water remains for natural environmental flows.

Delta issues are legion and begin at the headwaters of the Sacramento River, near Mount Shasta, a land Mark Franco describes as an Eden. "The deer, salmon, and acorns that we eat — everything that we need is there," Franco told the Guardian. "It’s such a beautiful place. Now they’re drying it, that Eden."

Franco is head of the Winnemem Wintu, or "little water people" tribe, and is fighting the first phase of water diversions from the Sacramento River, 200 miles north of the capitol where companies like Coca-Cola, Crystal Geyser, and now, potentially, Nestlé, pump millions of gallons a year into small plastic bottles and ship it around the country to sell in groceries and convenience stores.

"Here in the US, people have become soft. They’ve become so used to just having things directly handed to them that they no longer understand where their water comes from," he said at the anti-corporate water conference. "Realize this: those springs on Mount Shasta are not an infinite supply of water."

After the Sacramento feeds the bottled-water companies, what remains wends its way south, with more diverted directly to farmers and into the State Water Project, which pipes it to drier southern regions. What’s left empties into the delta.

A lack of fresh water, flagging environmental preservation, increasing agricultural needs, and leveed island communities that are seismically unsafe and sinking, all mean the delta is failing as an ecosystem, and has been for some time. Chinook salmon and delta smelt populations are collapsing to such an extent that court orders have halted a percentage of water diversions and salmon fisherman were forced to dock their boats this year. Levees are crumbling, causing islands to flood and raising ire among landowners. Farmers with historic water rights are fiercely protective of them, while environmentalists are lobbying them to use more conservation and efficiency.

Nearly all stakeholders agree that the status quo won’t hold.

The challenge is finding a solution. Ending exports seems impossible, limiting them means massive investments in other resources. No one agrees on what will really save the endangered salmon and smelt or improve conditions for the 700 other native plants and animals.

In 2006, the governor convened a seven-member Delta Vision Blue Ribbon Task Force, which released a strategic plan in October calling for balancing co-equal goals of ecological restoration and water reliability.

The plan also specifically recommended a dual conveyance system similar to what was proposed in a study by the Public Policy Institute of California. It combines some through-delta pumping with a peripheral canal around the delta. PPIC crunched the numbers and determined that the canal was economically better than any of the four options they had weighed.

The peripheral canal idea isn’t new, but it’s been controversial since it was first proposed almost three decades ago. The plan was ushered by then-Gov. Jerry Brown, but defeated by voters in 1982 after a major organizing effort by environmentalists. (Whether voters will cast ballots on it this time remains to be seen, though the Attorney General’s Office, now headed by Brown, has counseled the Department of Water Resources, which is charged with implementing whatever plan is decided upon, that a vote of the people isn’t required.)

Shortly after its release in July, the PPIC report was criticized by five elected Congressional Democrats — Reps. George Miller, Ellen Tauscher, Doris Matsui, Mike Thompson, and Jerry McNerney. "The PPIC report should not be used to ignore the many things that can be done today to restore Delta health, including providing necessary fish flows, undertaking critical ecosystem restoration projects, and making major investments in water recycling and improved conservation measures," Miller said.

Numbers used by the PPIC report have also been criticized by Jeffrey Michael, a business professor at the University of the Pacific in Stockton. In an analysis of PPIC’s work, Michael said the group had used inflated population figures, as well as high costs for desalinated and recycled water, therefore resulting in a report that made it look like it was too expensive to end delta exports altogether and replace them with other water sources.

The PPIC said the state’s population would be 65 million by 2050, that desalinated water costs $2,072 per acre-foot, and recycled water goes for $1,480 per acre-foot — numbers that were scaled to 2008 dollars from 1995 figures. Michael contends that if the numbers were adjusted to reflect actual costs, the peripheral canal wouldn’t look like such a sweet deal.

Maloni, of Poseidon Resources, said the desalinated water cost would be $950 per acre-foot for San Diego, including a $250 subsidy. A similar plant the company is hoping to construct in Huntington Beach will be about $50 more per acre foot.

When asked if $2,100 per acre-foot was a reasonable figure for desalinated water in California, Maloni said, "That’s nuts."

What does all this illustrate? That even among a small cast of purported experts there’s little consensus on several fundamental issues.

Adding more fuel to the fires of public skepticism is that a third of the funding for the PPIC report came from Stephen D. Bechtel Jr. — heir to the Bechtel Corp., which has come under tremendous criticism for its moves to privatize water around the world.

"That is very upsetting to us. They would stand to gain a lot with a contract to build a peripheral canal," said Barbara Barrigan-Parrilla of Restore the Delta.

PPIC’s Ellen Hanak said the funding didn’t affect their findings. "It’s really much more linked to the fact that the foundation is really interested in the environment and water is a part of that."

Linda Strean, the PPIC’s public affairs officer, told the Guardian that it was Bechtel himself who wrote the check, not the foundation. It’s the first time Bechtel has given to PPIC.

But considering Bechtel’s past performance managing water, it doesn’t inspire much confidence.

BECHTEL’S BIG ADVENTURES


In April, Cesar Cardenas Ramirez and César Augusto Parada, traveled from Guayaquil, Ecuador, to San Francisco. The two men were on a fact-finding mission: they wanted to know more about the company that owns Interagua, the company that is supposed to deliver the drinking water that only occasionally comes out of the taps in their homes.

One of the first things they discovered is that 50 Beale St. doesn’t necessarily advertise itself as the home of Bechtel — one of the world’s largest private corporations, with global construction and infrastructure contracts amounting to billions of dollars annually.

In Guayaquil, water service has been problematic for decades. During the 1990s the country received a loan from the Inter-American Development Bank to improve basic infrastructure. The money was given directly to the government, but like many World Bank and International Monetary Fund loans granted throughout Latin America at the time, it was predicated on an eventual privatization of the water service contract.

The money helped — water conditions improved, and the city seemed to be on track to bring service to outlying areas. But in 2000, the city, abiding by the loan conditions, requested bids to run the water and sewage systems. No bids were received. Leaders scaled back provisions that kept some control in the hands of the government, and they got one response. In 2001, Interagua, a company owned by Bechtel, took over water service.

"Since the contract, nobody has been able to drink the tap water," Cardenas, who represents the Citizen’s Observatory for Public Services, a watchdog group formed in Guayaquil to monitor the water contract between the government and Interagua, told the Guardian. "Prior to the contract you could drink the tap water, although there were some sections of the city where the plumbing was old and inadequate."

Even though Interagua is managing a public service, because it’s a private company, information about its exact responsibilities have been elusive. The Observatory does know that Interagua pays nothing for the water it draws from the local river, is guaranteed a 17 percent rate of return, and that it has a minimum mandate to expand service. What’s also known is its citizens’ experience — during the first six months of the contract, some rates were increased 180 percent.

Bechtel’s SF office refused to meet with the two men or answer their phone calls, e-mails, and letters, which highlights the inherent problem with corporate control of water — a lack of accountability. Bechtel didn’t answer any of the Guardian‘s detailed questions regarding the Interagua contract, and only provided a three-page letter originally drafted to the World Bank in December 2007, that paints a rosy scene of productivity and accomplishment in Guayaquil.

"At present, over 2.1 million residents of Guayaquil (84 percent of the population) are connected to the municipal potable water system, and more than 90 percent of the customers have 24-hour per day, uninterrupted service." The letter goes on to state that coverage is expanding with new connections, water quality meets public health standards, prices have decreased, and procedures are in place to help customers who have higher than average bills.

"There are things that have improved, yes," said Emily Joiner, who spent last summer in Ecuador and is author of the book Murky Waters, a history of water issues in Guayaquil published by the Observatory in 2007. But the bottom line is that citizens pay for the service, but they can’t drink the water.

"You still don’t drink the water anywhere in the city at any time," said Joiner. People buy bottled water or boil it. "Bottled water is expensive, as a percentage of income," she said.

Whereas water service was previously priced more like a progressive income tax, with the lowest consumers paying the lowest rates, Interagua has flattened out the rate structure and now big water consuming businesses are paying the same as residents. "It’s pricing some families out of the market," Joiner said. "It’s great for business. It’s not great for people who don’t have enough water to bathe or wash their clothes."

The Observatory would like the water system turned back over to the government. The local authority, which once ran the water service and is now charged with overseeing Interagua, fined the company $1.5 million for not meeting goals for expanding service. According to Joiner, there’s been no follow-up on whether the company is meeting those goals now.

The Observatory also filed complaints with the World Bank, which attempted a settlement, but, according to Joiner, representatives from Interagua refused to sit down at the same table as Cardenas. "The process stalled," Joiner said. "Interagua said the issue had become too politicized. César [Cardenas] has a reputation for rabble-rousing, and at the time he was lobbying for constitutional amendments outlawing privatization. Interagua considered it negotiating with a hostile party."

A new constitution was passed in September that does, in fact, outlaw privatization, but still allows existing contracts to be honored if they pass a government audit.

In the meantime, the local rumor is that Bechtel is arranging to sell Interagua to another company. Bechtel wouldn’t confirm this, and no one could say more beyond what was reported in speculative articles in Guayaquil’s local newspapers.

It wouldn’t be the first time Bechtel bailed on an international water contract. In what was part of a massive privatization of a variety of Bolivia’s national services, in 1996 the World Bank granted the city of Cochabamba a $14 million loan to improve water service for its 600,000 citizens. Like Ecuador, there were strings attached: a future privatization of the city’s water service. It was sold to Aguas del Tunari, the sole bidder — also a subsidiary of Bechtel. Almost immediately rates increased by nearly 200 percent for some families. In January 2000, people stopped paying, started rallying, and the water war began.

Led by La Coordinadora for the Defense of Water and Life, organizers shut down the city, physically blockading roads and demanding the regional governor review the contract. The battle went on into February, resulting in injuries to 175 people and the death of one. Originally the government announced a rate rollback for six months, but the Bechtel contract remained. "The [Bechtel] contract was very hard to get a hold of," Omar Fernandez of the Coordinadora told Jim Schulz of the Democracy Center. "It was like a state secret." Once they did examine a copy of it, Bechtel’s sweetheart deal for a guaranteed 16 percent profit was exposed and people demanded a full repeal.

Eventually, the residents got it, and though decent water service in Cochabamba is still elusive, the water war has become the poster child for successful grassroots activism.

"One of the most inspiring struggles around community control of water happened in Cochabamba, Bolivia, in the year 2000, when international corporation Bechtel — based here in San Francisco — privatized the municipal water system and hiked the water rates for citizens by 30 to 40 percent. Thankfully, there was a popular upsurge. It was a very bitter struggle and people succeeded in turning control back to public hands.

"This success changed the public debate in Bolivia," said Mateo Nube, a native of La Paz, Bolivia, who spoke at the anti-corporate water conference. "People said ‘enough’ to privatization, enough to corporate control. We need to seize control of our government."

You don’t have to go to Bolivia to find water-privatization battles. In 2002, catching wind that the city of Stockton was on the brink of privatizing its water services, the Concerned Citizens Coalition rallied signatures for a ballot measure against the idea. Weeks before the vote, the Stockton City Council narrowly approved one of the west’s largest water privatization deals — a 20-year, $600 million contract with OMI-Thames. The ballot measure still received 60 percent approval, and activists took the issue to court arguing there hadn’t been a proper CEQA process. In January 2004, according to the Concerned Citizens Coalition Web site, "San Joaquin County Superior Court Judge Bob McNatt ruled in our favor — we won on all points. The judge ruled that privatizing, in and of itself, needed environmental review." The city appealed, but eventually dropped the suit and OMI walked away in March 2008.

PUBLIC AGENCY, PUBLIC PROCESS


Bechtel also failed to hold on to a more local contract, a $45 million deal with the SFPUC to manage the first phase of its multibillion dollar Water System Improvement Project. After a 2001 story by the Guardian exposed Bechtel’s exorbitant billing for services that resulted in few gains (see "Bechtel’s $45 million screw job," 9/12/01), the contract was revoked by the Board of Supervisors and granted to Parsons, which runs it now.

Years later, in 2007, when the SFPUC released a draft of the Environmental Impact Report for the $4.4 billion project, massive public outcry arose against it. The plan outlined major seismic upgrades for miles of aging water infrastructure between San Francisco and Yosemite National Park, where the headwaters of the Tuolumne River are captured by a giant dam in Hetch Hetchy Valley and gravity-fed to the city. While the EIR projected little additional water use for San Franciscans, it called for diverting an additional 25 million gallons of water per day from the Tuolumne to meet the needs of 23 wholesale customers in San Mateo, Santa Clara, and Alameda counties.

The Pacific Institute and Tuolumne River Trust collaborated on a study showing that 100 percent of the anticipated water increases were for those wholesale customers — most of it for outdoor water use. The SFPUC hadn’t factored in any increased conservation, efficiency, or recycling measures, nor had it independently questioned the growth numbers.

The EIR received upwards of 1,000 public comments, more than any other document ever generated by the SFPUC. Environmental groups rallied, writing editorials, flooding public meetings, and asserting a different vision of the Bay Area’s water future and stewardship of its primary, pristine water resource.

And it worked. "We got about 95 percent of everything we wanted out of the WSIP process," said Jessie Raeder of the Tuolumne River Trust. "We do consider the WSIP a huge win for the environmental community … because we were able to organize and get a seat at the table and discuss this with the PUC." She said the Bay Area Water Stewards, a coalition of environmental groups, met with the PUC nearly every month and slowly the initial additional river diversions were pared down to a possible 2 million gallons. Also, a cap has been placed on any diversions until 2018, which gives agencies time to implement conservation and efficiency measures.

The SFPUC feels positive about it, too. "We are really thrilled that the program EIR was approved by the Planning Commission, approved by the PUC, and not appealed," said spokesperson Tony Winnicker. He said there were really controversial elements and the trick was balancing the competing interests of wholesale customers and environmental groups. "It took a really hard-nosed look at our demand projections and what we could really do for conservation." He concedes there are still controversies, in particular over the Calaveras Dam, which the Alameda Creek Alliance opposes. "It would be hubris for us to say it’s been a complete success."

"This is a process that would only occur through a public agency," Winnicker added.

"What we saw with the WSIP was a solution where everything was fully transparent," Raider added. "It was all a public process, and there was plenty of opportunity for public input."

Which is really what a public water utility should be doing. "When you’re talking about public water, it isn’t them, it’s us," said Wenonah Hauter, director of Food and Water Watch. "A public water system is only as good as the people involved with it."

DRINK LOCALLY


"This conference isn’t a public event," organizer Andrew Slavin told the Guardian when we tried to gain admittance to the Corporate Water Footprinting Conference. While water activists rallied outside deriding the corporations inside for greenwashing their images, Slavin said that the fact that the conference wasn’t open to the public proved that the corporations weren’t trying to do environmental PR. "If they’re trying to do greenwashing this isn’t the place to do it. The aim is to try to share information."

Slavin pointed to representatives speaking from the Environmental Protection Agency, the SFPUC, and NGOs like the World Wildlife Fund. From an environmental perspective, if these companies are going to be using water, isn’t it worth working with them to reduce their impacts?

"There are companies I call water hunters," explained Maude Barlow. "They destroy water to make their products and profit. Unfortunately, some of the companies that are leading this conference are bottled water companies. I don’t know how you can become ‘water neutral’ if your life’s work is draining aquifers."

Many water activists consider bottled water the low-hanging fruit as far as getting people to change behaviors. San Francisco banned the use of tax dollars to buy it, and the SFPUC has been promoting its pristine Hetch Hetchy tap water, gravity-fed from Yosemite National Park. "Bottled water companies are basically engaged in a multiyear campaign. Their marketing approach is you can’t trust the tap, your public water isn’t safe," Winnicker said.

Slavin said he thought it was weird to protest the conference, because the corporations are genuinely trying to avoid conflicts. He pointed to a company called Future 500 that has created a business out of mediating between corporations and communities. "It’s hard for companies to speak to people so they use other companies to do it," Slavin said.

In fact, representatives from Future 500 appeared to be the only conference attendees who stepped outside to watch the protest.

"I think it’s great," Erik Wohlgemuth of Future 500, said of the protest. "I think press should have been there. I think more of these voices should have been there. My personal view is they need to come up with some sort of reduced rate to allow these nonprofits to attend these kinds of conferences."

Jeremy Shute, a representative from global infrastructure company AECOM who was standing with Wohlgemuth, said, "There’s a tremendous amount of research and thought going into these questions and it would be great if that knowledge could be shared."

But is that going to happen when private companies cite "proprietary interest" as a reason for not sharing more information about their businesses? Or when they don’t have to abide by public records laws, leaving their contracts shielded from public scrutiny? Or when they refuse to answer calls from their constituencies and the media? In which case, should those advocates be in the same room as some of the biggest water users in the world? When pressed with the question, Slavin seemed stumped. "Why didn’t we invite them?" he asked. Then, after a long, thoughtful pause, he said, "I don’t know."

————————

WATER, BY THE NUMBERS

One-half of 1 percent of the world’s water is fresh. [1]

Of that .5 percent, about 50 percent is polluted. [2]

One in 6 people don’t have access to clean, safe water. [3]

Five food and beverage giants — Nestlé, Unilever, Coca-Cola, Anheuser Busch, and Groupe Danone — consume almost 575 billion liters of water per year, enough to satisfy the daily water needs of every person on the planet. [4]

The average human needs about 13 gallons of water each day for drinking, cooking, and sanitation. [5]

An average North American uses about 150 gallons of water each day. [6]

An average African: 1.5 gallons. [7]

An average San Franciscan: 72 gallons. [8]

The average Los Angeles resident: 122 gallons. [9]

About half the water used by a typical home goes for lawns, gardens, and pools. [10]

50 percent of US water comes from non-renewable groundwater. [11]

86 percent of Americans get their water from public water systems. [12]

80 percent of California’s homes get water from public systems. [13]

The 20 percent of CA households receiving water from privately-owned systems pay an average of 20 percent more for it. [14]

Of the 4.5 billion people with access to clean drinking water worldwide, 15 percent are buying it from private water companies. [15]

It takes 3 liters of water to produce 1 liter of bottled water. [16]

Tests of 1,000 bottles of water spanning 103 brands revealed that about one-third contained some level of contamination. [17]

The bottled water industry is worth $60 billion a year. [18]

Water is the third biggest industry in the world, worth $425 billion, ranking just behind electricity and oil. [19]

About 70 percent of CA’s water lies north of Sacramento, but 80 percent of the demand is from the southern two-thirds of the state. [20]

[1] www.gwb.com.au/gwb/news/mai/water12.htm

[2] Maude Barlow, interview with SFBG

[3] foodandwaterwatch.org/world/utf8-america/water-privatization/ecuador/bechtel-in-guayaquil-ecuador

[4] The Economist magazine

[5] www.ens-newswire.com/ens/mar2002/2002-03-22-01.asp

[6] www.canadians.org/water/publications/water%20commons/section4.html; environment.about.com/od/greenlivinginyourhome/a/laundry_soaps.htm

[7] montessori-amman-imman-project.blogspot.com/2008/01/in-news-interview-with-ariane-kirtley.html; answers.yahoo.com/question/index?qid=20080304195801AAnrv4Y

[8] sfwater.org/mto_main.cfm/MC_ID/13/MSC_ID/168/MTO_ID/355

[9] www.nwf.org/nationalwildlife/article.cfm?articleId=928&issueId=68

[10] American Water Works Association

[11] www.canadians.org/integratethis/water/2008/May-28.html

[12] www.foodandwaterwatch.org/water/private-vs-public

[13] California Public Utilities Commission

[14] Black and Veatch’s 2006 California Water Rate Survey

[15] www.canadians.org/water/publications/water%20commons/section2.html

[16] www.pacinst.org/topics/water_and_sustainability/bottled_water/bottled_water_and_energy.html

[17] Natural Resources Defense Council study, "Pure water or pure hype?" (1999)

[18] www.bottlemania.net/excerpt.html

[19] www.timesonline.co.uk/tol/money/article4086457.ece; thegreenblog.leedphilly.com

[20] www.energy.ca.gov/2005publications/CEC-700-2005-011/CEC-700-2005-011-SF.PDF

Ricky Angel and Katie Baker assisted with research.

Tyranny of the majority

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› steve@sfbg.com

When the California Supreme Court agreed last week to decide the legality of Proposition 8 — which a slim majority of Californians passed Nov. 4, taking from same-sex couples the marriage rights that the court had established in May — the debate shifted to a concept far older than that of gay rights.

Essentially, it will decide whether this is a case of the "tyranny of the majority," a phrase Alexis de Tocqueville coined in his classic 1835 book Democracy in America, drawing on a concept from the ancient Greeks that was the philosophical underpinning of the US Bill of Rights and the central paradigm of constitutional democracy.

The founding principle is that basic rights — such as the freedoms of speech, religion, and association — are not subject to majority approval and can’t be taken away by a simple popular vote. So the question now before the judges is whether the right to marry, which the court ruled had been unconstitutionally withheld from same-sex couples, is among those core rights.

"The whole notion of equal protection is to protect minority interests from the periodic discriminatory impulse of the majority," Robert Rubin, legal director for the Bay Area chapter of the Lawyers Committee for Civil Rights, told the Guardian. "And [upholding Prop. 8] would turn that on its head."

‘CONSTITUTIONAL CRISIS’


Even before the votes were counted election night, the San Francisco City Attorney’s Office and its counterparts in Santa Clara County and the city of Los Angeles were developing their challenge to the legality of Prop. 8, which they filed Nov. 5.

Both Prop. 8 proponents and the California Attorney General’s Office agreed that the high court should immediately take the case rather than let it rattle around the lower courts for months or years. "Review by this Court is necessary to ensure uniformity of decision, finality and certainty for the citizens of California," Attorney General Jerry Brown wrote to the court.

Brown had previously ruled that the roughly 18,000 marriages performed since May were legal and that Prop. 8 is not retroactive, something proponents of the measure dispute and which the Supreme Court also has agreed to decide in this case. But two of the three "issues to be briefed and argued," as the high court ruled Nov. 19, were more fundamental: "1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (see Cal. Const., art. XVIII, 1-4) 2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?"

Narrowly framed, the first question asks whether the process of banning same-sex marriage in the constitution should have gone through the more cumbersome revision process, which involves winning a two-thirds vote in the California Legislature before submitting the measure to voters. And the second concerns whether the legislative branch of government (in this case, through a direct vote of the people) can legally override this decision by the judicial branch.

But more broadly framed, both questions go to the same basic issue: can a simple majority of voters take away rights from a protected minority group, one the judicial branch has already ruled is entitled to the same marriage rights as heterosexual couples? The implications of that answer are so profound that City Attorney Dennis Herrera, in a City Hall press conference after the court announced its decision, cast the matter as no less than a "constitutional crisis."

"The cases before the Supreme Court today are no simple rematch. To be candid, the principles implicated here are of far greater consequence than marriage alone," Herrera said. "In short, this case has gone beyond the simple issue of marriage equality. And no matter what your view of same-sex marriage is, it’s important to understand that the passage of Proposition 8 has pushed California to the brink of a constitutional crisis."

He then explained why.

"This measure sought to do something that no other constitutional amendment has ever done here in the state of California, and that is to strip a fundamental right from a protected class of citizens and in doing so, it did not merely undo a narrowly disfavored Supreme Court ruling. Its legal effect is nowhere [near that] simple or elegant. Rather, it upended a separation of powers doctrine deeply rooted in our system of governance. It trounced upon the independence of the state’s judicial branch and it eviscerated the most fundamental principle of our state’s constitution. And if allowed to stand, Proposition 8 so devastates the principle of equal protection that it would endanger fundamental rights of any potential electoral minority, even for protected classes based on gender, race, or religion. And it would mean a bare majority of voters could enshrine any manner of discrimination against any unpopular group, and our state constitution would be powerless to disallow it," Herrera said.

That’s why he said 12 cities and counties have joined this suit — including Los Angeles and Alameda counties, which were not part of the original same-sex marriage case — along with supporting roles being played by the NAACP, the Mexican-American Legal Defense Fund, the Asia Pacific American Legal Center, and California Council of Churches.

There is some irony to the Council of Churches’ involvement given that religious groups, particularly the Catholics and Mormons, provided the backbone of financial and volunteer support for the Yes on 8 campaign. Yet the council argues that Prop. 8 is an attack on religious freedom.

"It is kind of ironic, and I don’t they they’re paying attention to the big picture, to be honest with you," Eric Isaacson, attorney for the Council of Churches, told the Guardian. "But history tells us that religious groups are often the victims of such persecution."

He cited laws that have taken rights from Jews in many countries and instances of majorities in the United States going after Jehovah’s Witnesses and the Mormons, a group driven from state to state by discriminatory mobs until they finally settled in Utah to enjoy religious freedom.

Beyond the historical and precedent-setting nature of the case, the council’s executive director Rick Schlosser told the Guardian that Prop. 8 discriminates against Episcopal, Unitarian, and other churches that believe all people have the right to marry.

"We work on a lot of religious freedom issues and there’s a huge number of churches that support the right of people to marry," Schlosser said. "There are a lot of churches that think it’s their religious duty to perform same-sex marriages."

CONFLICTING TRADITIONS


Frank Schubert, who managed the Yes on 8 campaign, scoffs at attempts to frame this debate around larger constitutional issues: "This is simply about marriage and what the definition of marriage will be."

He called the chances of overturning the measure "minuscule," and said, "the constitution belongs to the people." Rather than an initiative upsetting constitutional traditions, Schubert blamed the Supreme Court for reinterpreting marriage: "It’s the first time in California that rights that did not exist were granted on a narrow court decision and the people corrected that."

Yet the traditional gender structure of marriage is now in conflict with traditions of equal protection and separation of powers, something same-sex marriage advocates say needs to be the subject of a concerted public education campaign.

"There is a major civics education to be undertaken," Rubin said, recalling how he was also criticized publicly in 1994 for his role in winning a restraining order against Proposition 187, which sought to withhold government services from undocumented immigrants. "Yet the notion that protecting minority interests is not subject to popular will is not that hard to understand."

Maybe, but some constitutional law scholars say the formulation is not quite that simple. "The notion that a majority can’t take away a minority group’s rights, that just isn’t true," said UC Berkeley’s Boalt School of Law professor Jesse Choper. He takes a less philosophical view of the case, noting that California law explicitly allows the constitution to be amended, essentially however the people see fit, a process far easier than the one to change the federal constitution.

Choper said the specific question before the court is whether voters can remove same-sex marriage rights from the constitution. "And the answer is yes, if they do it properly," he said. That determination will come down to whether the judges believe this change is a mere amendment, or a more serious revision. Choper said the case law on that question isn’t well-established, but his reading of it is that plaintiffs face a real challenge in arguing that a simple change to the constitution — albeit a weighty one — requires the revision process. "It’s uphill," he said. "They’ll have to cut a new cloth."

But Herrera and his fellow plaintiffs don’t agree. While he characterized the coming legal battle as difficult and complicated, he expressed confidence in their ability to show that Prop. 8 changes core constitutional principles.

"That’s why I think this is a revision rather than amendment, because it would so radically change the balance of power and responsibility between our branches of government," Herrera said.

Santa Clara County Attorney Ann Ravel, who joined Herrera’s press conference, agreed, stepping up the podium to say, "Let me just add something to that. If this is not a case of revision, it’s hard to imagine any case that the court might find there to have been a revision, and there have been some."

While Choper may not agree with the plaintiffs on how the court will decide the equal protection questions, he does agree that the outcome could have serious implications for minority rights and the ability of voters to target disfavored groups. "If they can do it to this minority, they can do it to other minorities," Choper said.

Rubin said the religious groups pushing Prop. 8 are being short-sighted: "What they may like today when they have 51 percent of the vote, tomorrow they may be on the 49 percent side and may not like that basic rights come down to majority rule."

And that’s why the issue gets elevated to the larger question of whether this is a case of tyranny of the majority, something that could become an issue for the federal courts, which is likely to see cases challenging whether lax California standards on precedent-setting initiatives might run afoul of bedrock principles in the US Constitution.

"Yes of course you could challenge it in the federal court," Choper said. "If Prop. 8 stands, someone will bring a case about whether discrimination against gay marriages violates the equal protection clause of the federal constitution."

Herrera said he doesn’t want to go there yet, but he left that door open in response to a question from the Guardian: "Are there potential federal issues down the road that could be raised or discussed? It’s no secret that’s potentially there, but at this point, I don’t think that’s something that we’re going to focus on."

THE LONG VIEW


While the judges and lawyers in this case may focus on narrow legal concepts and definitions, Herrera is seeking to present the case in a far grander context.

"Equal protection under the law is what separates constitutional democracy from mob rule tyranny and it is a principle that reaches back eight centuries to the Magna Carta and it has guided the founding of our nation and our state," he said. "So I understand that on same-sex marriage, the emotions on both sides run high, but it’s important to understand the legal stakes are even higher. The cases before the high court today are no longer about marriage rights alone. They are about the foundations of our constitution. And as citizens we share the blessing of a common jurisprudence, and I refuse to accept that it is beyond us to find common ground in its enduring and deeply American principles: equality under the law, separation of powers, and an independent judiciary."

Ravel reinforced Herrera’s perspective, telling reporters, "The Supreme Court is going to decide, as Dennis said, a question that goes to the very foundation of our democracy and that will also impact every city and county in the state. The court has held, previously, that all couples have to be treated equally when it comes to the important institution of marriage. A majority of voters can’t undercut the court’s role in protecting minorities in our society."

Essentially, this is no longer a case about same-sex marriage.

"The merits of the case are different than they were back in May. The fact of the matter is the California Supreme Court found there was a fundamental right to marry and that LGBT couples are entitled to that right. The issue here is should Prop. 8 be struck down because it was an improper amendment versus a revision," Herrera said. "So I think everybody is focused on the right issues." *

AG urges Supreme Court to review Prop 8

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California Attorney General Jerry Brown has urged the California Supreme Court to accept review of the legal challenges to Proposition 8 and promptly resolve “this matter of widespread concern.”

“Review by this Court is necessary to ensure uniformity of decision, finality and certainty for the citizens of California,” Brown wrote in a set of briefs that were filed with the Court today.

The AG’s recommendation comes on the heels of a weekend of anti-Prop. 8 protests nationwide, and less than two weeks after the City and County of San Francisco, the County of Santa Clara and the City of Los Angeles sued to invalidate Proposition 8, arguing that it“ intends to deprive gay and lesbian citizens of their fundamental right to marry in California.”

The speed of the AG’s response is further evidence that Prop. 8’s passage has brought the state to the brink of a constitutional crisis.

Typically, such matters are brought to lower courts before the Supreme Court hears the case. But as Brown argues, a stay, “would increase uncertainty related to marriages performed in California.”

“The constitutionality of the change created by Proposition 8 impacts whether same-sex marriages may issue in California and whether same-sex marriages from other states will be recognized here,” Brown wrote. “There is significant public interest in prompt resolution of the legality of Proposition 8.”

Brown also continues to maintain that “same-sex marriages performed between June 17 and November 4, 2008, remain valid and will be upheld by the Court,” according to a press release issued by his office today.

Brown’s request means the Supreme Court will consider taking up the matter at its Nov.19 closed session.

Legal insiders predict good news for same-sex marriage proponents if the Supreme Court decides to review Prop. 8, since this is the same Court that ruled on May 15, 2008 that banning same-sex marriage is unconstitutional.

If the state Supreme Court decides not to review the case, same-sex marriage supporters could pursue the case with the U.S. Supreme Court, or head back to the ballot box.

But, for now, all eyes are focused on the State Supreme Court and SF City Attorney Dennis Herrera.

As Herrera wrote the day after the November election, “If allowed to stand, Prop 8 so devastates the principle of equal protection that it endangers the fundamental rights of any potential electoral minority — even for protected classes based on race, religion, national origin and gender.”

With only 52 percent of voters supporting Prop. 8, Herrera further argued that the state Constitution’s equal protection provisions, “do not allow a bare majority of voters to use the amendment process to divest politically disfavored groups of constitutional rights.”

Why we waited — too long

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OPINION The California Supreme Court’s landmark ruling in May finally allowed same-sex couples their constitutional rights to marry. This was justice for the 4,000 same-sex couples issued marriage licenses in San Francisco from Feb. 12 to March 11, 2004. We were lucky to be one of those couples — but within five months the courts had voided all 4,000 licenses. I marched with hundreds to City Hall that day and angrily waved my nullified marriage license in the air. Del Martin and Phyllis Lyon provided a balm, saying with a laugh, "Oh well, guess we have to go back to living in sin."

Over the past four years, we’ve continued to wear our rings and celebrate our wedding anniversary. When the County Clerk’s office offered us a refund for our marriage license, we requested the refund go toward the city’s legal battle over same-sex marriage. It appeared that San Francisco had won that battle on May 20, 2008.

But we decided not to remarry until after the November election, when we would know if California agreed with the state Supreme Court. Attorney General Jerry Brown assured us that these wedding licenses could not be voided, but the memory of seeing couples in tears on March 12, 2004, when we had just been married the day before, was reason enough to wait.

In our hearts, we knew that Proposition 8 was likely to pass; since 1980 we have witnessed California consistently shoot itself in the foot by voting for petition-driven propositions.

In the past three months, one of us has devoted nearly 60 hours in an effort to defeat Prop. 8. The irony is that back in January, Troy was precinct captain for Obama in the California primary. He most likely talked to a good portion of voters out in the Sunset District who voted in favor of Prop. 8. And while the Mormon Church funded most of the Yes on 8 campaign, it is now clear that their message got through to many of California’s minorities, who turned out in record numbers to vote for Barack Obama. The No on 8 campaign should have targeted those communities; instead it only showed white people in its television ads. Now we are the ones with a dream deferred.

Marriage was not something we always believed in. When you’re used to outsider status, sometimes you learn to roll with the injustices perpetrated upon you. When Mayor Gavin Newsom and the city offered us a taste of it back in 2004, it didn’t take much to realize how much we were missing. The marriage itself was one of the best days of our lives, and having it voided was a very, very bitter feeling I won’t soon forget.

To those of you so motivated to vote for Prop. 8, we can simply tell you this: in a world of massive problems, of great economic and environmental woes we are only now beginning to feel acutely, can we bring it upon ourselves to actually join together with all of our brothers and sisters and confront all hatred with an idea of a greater social good? Can we imagine a world where our children aren’t judged by the gender of the ones they love, but by the content of their character?

Yes we can.

Victor Krummenacher is a musician and contributing designer for Wired magazine. Troy Gaspard is a surly activist and frugal trader.

Prop 8: Through the big gay window

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If you liked it, then you should have put a ring on it …

So. All my gay friends, even the “radical” ones, it appears, are getting married — before Nov. 4, when Prop 8 just might pass, and the window may close for good on same-sex marriage. AG Jerry Brown has indicated that the marriages performed before then would still be considered valid, as the Chron reported. Hey, Matier & Ross, I’m expecting your penis-lily-embossed announcement any minute.

I’ve received no less than 12 frantic invites to hastily assembled same-sex weddings (although one couple took the time to register at Barney’s — Vera Wang crystalware, pshaw!). Is this the real case for how Prop 8 actually destroysl marriage — forcing people, shotgun-style, into perhaps-unthought-through unions? I jest, maybe. But the trend appears also a bit, er, defeatist in my book. Although of course I wish the happy couples, and their makeshift receptions at the Powerhouse, all the best!

Still, despite all the blackmail, violence, foaming at the mouth, Blackwater connections and rampant Mormonism, we can still beat this thing. Please give to or volunteer for No on 8 today — before I have to shoulder the costs of another seafoam and salmon crinoline-encrusted bridesmaid dress! No one makes me wear crinoline in October ….

Editor’s Notes

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› tredmond@sfbg.com

They’re tearing up Bernal Heights. I came back from vacation and all the streets around my house were blocked off with "no parking" signs and the heavy equipment was ripping the pavement open. We’re getting new sewer pipes, which is a fine thing. Your neighborhood will be in the queue pretty soon; it’s a citywide project, and in the end it will cost $4 billion.

A lot of that money will go for digging trenches in the streets. Trenching and backfilling is pricey, tens of thousands of dollars a block. And it’s making me crazy that we’re spending all that money on excavation contractors and we’re not taking advantage of the opportunity.

Every ditch I see, every detour sign, every annoyed resident who can’t find a place to park, makes me want to scream. We’re doing all this work for the sewer lines, which are a crucial part of the civic infrastructure. Why aren’t we using the same money, the same equipment, the same holes in the streets to lay electrical and fiber optic cable?

Fiber’s cheap — compared to the cost of bringing all the gear out, hiring the people to operate it, putting the dirt back in the holes, and pouring new blacktop. The thin wires that could carry the world’s information system directly and cheaply to every house in the city is on the order of what Sup. Ross Mirkarimi likes to call "decimal dust." Electrical conduit, which will one day be the backbone of a city-owned power system, costs a little more, but not that much.

Face it: we’re going to do all this at some point anyway. I’m an optimist (about San Francisco, anyway), and before long Gavin Newsom will be gone, and we’ll have a mayor who believes in the public sector, and public power and public broadband will be the order of the day. And running those utilities underground makes perfect sense in a city where earthquakes make elevated electrical wires a visible hazard.

But since nobody at City Hall is putting up a modest amount of cash to do this now, in a few years we’re going to have to spend a whole lot of cash to dig up all the streets all over again.

Am I the only person who thinks this is insane?

I was way off on the St. Lawrence River, in a place that had no Internet access and only spotty cell phone reception, so I missed the news that Sen. Dianne Feinstein was sorta, maybe, kinda thinking about running for governor of California. It was a chilling little welcome-home message for me. Anyone who lived through the days when Feinstein was mayor of San Francisco ought to share my revulsion at the idea of her running the entire state. She’s a Democrat only in name; on economic issues, she’d be as bad as Gov. Schwarzenegger. She’s also an autocrat — and with term limits, there’s nobody in the Legislature who could stand up to her.

The deals are already in the air; Willie Brown just floated out a key one in the Chron. Maybe Gavin Newsom would drop out of the governor’s race, and Feinstein would give him her US Senate seat if she wins.

What a rotten concept. If Feinstein runs, she needs real competition. Feinstein vs. Jerry Brown would be fascinating, and Newsom ought to stay in too. I’m not terribly impressed with the way he’s run the city either, but in the end, I think she was a lot better at being bad than he is.

It’s good to be home.

Bureaucrats blow $375k reading Matier & Ross

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Employees working for the city and county of San Francisco have squandered $375,000 in salaried work hours over the last 12 months reading San Francisco Chronicle columnists Matier & Ross, time that could have been spent finding cheaper ways to provide a police presence at political demonstrations and repaint parking garages located at far-flung BART stations, according to a new report by Controller Ed Harrington.

“Our analysis shows that City Hall staffers spent precious work time reading about how wasteful they are when they could have been figuring out how to make the board’s chambers ADA compliant for less money or more quickly dispatch frivolous and costly lawsuits against the city,” Harrington said.

The report shows that overpaid City Hall staffers in particular devoted seemingly endless salaried hours reading about how they and their colleagues have burdened San Francisco’s already bloated $338 million budget deficit and how Jerry Brown’s recent office redo in Sacramento cost a whole lot of taxpayer money.

“Dude, I’m totally expensive,” said one City Hall insider after reading about how much it cost for him to have a big title but few actual tasks. “And holy shit, did Don Perata’s new taxpayer-subsidized car really cost that much? No wonder we’re laying off teachers.”

Freedom of Information: 2007 James Madison Award winners

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Click here for details on the First Amendment Awards Dinner.

Norwin S. Yoffie Career Achievement Award

DAN NOYES (COFOUNDER, CENTER FOR INVESTIGATIVE JOURNALISM)


If journalists were the subjects of trading cards like baseball players, the Dan Noyes rookie card would be just as impressive as a 2008 career highlights card. Think Reggie Jackson: a long, impressive career, spanning multiple organizations and a propensity to come out swinging big at the end of a hard-fought battle.

Over a career spanning 30 years, Noyes has pursued serious investigations, some lasting as long as a year, into everything from questionable Liberian timber imports to illicit gun trafficking from United States suppliers to the Nuestra family gang. Journalism first interested Noyes during the crucial investigative reporting that sparked Watergate scandal in the early 1970s.

In 1977 Noyes cofounded the Berkeley-based Center for Investigative Reporting (CIR), an independent news organization which produces in-depth stories and documentaries for all major news outlets. In 1979, reporting for the ABC News program 20/20, CIR broke a story on a swindling United Nations charity organization and its connections to international drug trafficking.

More recently, Noyes has done a series of print and broadcast pieces concerning gang violence in California and its effect on the lives of those surrounding the lifestyle. Noyes still holds an executive position at the CIR and continues to contribute to the world of investigative journalism.

Beverly Kees Educator Award

CLIFF MAYOTTE


Cliff Mayotte sees his Advanced Acting Class at Lick-Wilmerding High School as one that merges students’ "consciousness and awareness as young adults with their skills and energies as performance artists."

The subtitle of the course is "Theatre as Civic Dialogue," and the eight students enrolled during the 2007 spring semester used all their abilities to pull off a notable show.

After an introduction to Documentary Theatre — a form he described as "oral history turned into performance" — the group selected a topic that was important to them, giving birth to the "Censorship Project."

The students interviewed their peers, teachers, and administrators to gather perspectives on the ways in which expression and opinion can be muted or altered, both voluntarily and involuntarily. They reached out to organizations such as Project Censored, the First Amendment Project, and the Ella Baker Center for Human Rights. They transcribed interviews and studied subjects in order to capture statements, word patterns, and mannerisms of interviewees, then shaped the themes into a 60-minute performance.

Professional Journalists

WILL DEBOARD


"Being a high school sports guy, I don’t get to do this very often," the Modesto Bee‘s Will DeBoard said of his first major foray into investigative reporting. He had gotten a tip that the California Interscholastic Federation was investigating recruiting violations by the football program at Franklin High School in Stockton, which competed with schools in his area. DeBoard asked the school and CIF about recruiting violations, but the football coach flatly denied the allegations and the CIF wasn’t much more helpful.

So DeBoard decided to make formal requests for public records with the help of business reporter Joanne Sbranti, and after fighting through some initial denials, he obtained hundreds of pages of investigatory documents from CIF showing how the school was recruiting players from American Samoa. "It really was a treasure trove of great stuff. We got two weeks’ worth of stories out of these documents," DeBoard said. "It really showed us that what the school was telling us just wasn’t true."

The documents detailed the recruiting scheme and gave DeBoard tons of leads for follow-up stories, including the address of "a home owned by the coach where there were all these gigantic Samoan linemen living there." DeBoard called the effort an "adrenaline rush" better than that caused by the best game he’s covered and a high point of his journalism career.

THOMAS PEELE


Contra Costa Times investigative reporter Thomas Peele has a long history of battling for public records access on behalf of both reporters and private citizens. Peele, who helps with projects for all the newspapers under the Bay Area News Group-East Bay ownership, helped ensure the recovery of thousands of e-mails from the Oakland mayoral tenure of Jerry Brown when he left office to become the state’s attorney general in 2006. Peele also helped conduct a statewide audit of Public Records Act compliance by law enforcement agencies with the nonprofit Californians Aware, which revealed glaring inconsistencies in how police across the state make information about their activity available to the public. And he’s been a major figure in helping the Chauncey Bailey Project pry out new information about Bailey’s murder last year and it’s connection to Your Black Muslim Bakery. He began his career in 1983 at a small weekly in Bridgehampton, N.Y., and moved from there in 1988 to the Ocean County Observer in New Jersey before joining the CCT in 2000.

ROLAND DE WOLK


KTVU-TV producer Roland De Wolk is leading the investigative team of photographer Tony Hedrick and video editor Ron Acker in a quest to get the names of drivers who regularly use FasTrak lanes but don’t pay anything. But to date, says De Volk, the Metropolitan Transportation Commission has been blocking his team’s quest.

De Wolk told the Guardian that his team filed a California Public Records request when the MTC wouldn’t provide information on the amount of money it was losing thanks to drivers who don’t pay tolls when they use FasTrak lanes.

"We asked MTC for specific numbers last summer and got little information. That makes a reporter’s antennae quiver," said De Wolk.

But when he and his team asked for the numbers of people obstructing their plates, the MTC started acting squirrelly, De Wolk said.

"Finally, after six to eight weeks of asking we got an answer: a photo of a car whose plate was blank," fumed De Wolk, whose team continues to push for the names of the 10 most frequent FasTrak violators.

Broadcast News Outlet

KGO-TV


When KGO-TV reporter Dan Noyes and producer Steve Fyffe asked Muni to turn over records of public complaints against its drivers, they were ready for some bureaucratic foot dragging. But they never expected the yearlong grudge match that followed. First, the union representing Muni drivers sued to keep the records sealed. Then Muni’s parent department, the Municipal Transportation Agency, made a backroom deal with the union and released a blizzard of confusing and heavily redacted paperwork that would have made the Pentagon blush.

"It was essentially a big document dump," Fyffe told us. "There was no way to tell one form from another or which driver was which."

Noyes and Fyffe convinced their bosses at KGO-TV to file a lawsuit for full access to the records. The station prevailed, after which Noyes and Fyffe received over 1,200 pages of public complaints about 25 drivers. Recently, the station went back to court after Muni refused to release surveillance tapes of the drivers. As in the previous case, the judge ruled that the public had a right to the materials and forced the transit agency to hand the tapes over.

Fyffe said he sees KGO’s legal successes as small victories in a much larger fight. "I hope in the future that this case will make Muni and other city departments more [responsive] to records requests … these kinds of incremental victories hopefully lead, little by little, to a more open government."

Print News Outlet

SACRAMENTO BEE


The Sacramento Bee operates in a city run by top-tier politicians and their spinmeisters, so the editors and reporters there have placed increasingly high value on using documents to support their stories.

"We’ve always used public records here. Being in a state capital, we’re a little more aware of the necessarily of that," managing editor Joyce Terhaar said. "You just need to be able to tell a story about what’s really happening."

Yet she said that in recent years, the Bee has made a concerted effort to hire public-records experts and to have them share their knowledge with the paper’s staff through regular workshops. And last year, those efforts paid off with a string of big, impactful investigative stories.

Among them was Andy Furillo’s look at how much the state was spending to fight inmate care lawsuits, Andrew McIntosh’s exposé on the lack of oversight for paramedics and emergency medical technicians, and stories by John Hill and Kevin Yamamura on misconduct by the state’s Board of Chiropractic Examiners.

In selecting the Bee, Society of Professional Journalists judges recognized these individual efforts as well as the Bee‘s "institutional support of reporters and their use of public records for numerous stories."

Community Media

THE BERKELEY DAILY PLANET


One of the only ways to uncover corporate wrongdoing is to dig through court records, and it’s the job of the press to report what it discovers, said Becky O’Malley, executive editor for the Berkeley Daily Planet. She was convinced that a prior court order violated the public’s constitutional rights to see court documents, so the small daily newspaper sued and won in a California appeals court last year, making public 15,000 pages of records from a class-action suit filed against Wal-Mart in 2001.

The documents included allegations that the company had denied rest breaks to its workers and deleted hours from paychecks. In the Planet‘s freedom of information suit, the appeals court judges agreed with the paper’s attorneys that the case could set a dangerous precedent where the public would have to prove its right to access court records. "It’s becoming more of a trend for judges to grant permanent seals on court records," said O’Malley. That’s unfortunate, she added, since "the only way the public finds out about bad things going on in society is through court records."

Special Citation Award

CHAUNCEY BAILEY PROJECT


After Oakland journalist Chauncey Bailey was murdered last August, a large group of Bay Area media organizations formed a rare coalition to investigate his death and the activities of Your Black Muslim Bakery, a long-time East Bay institution believed by police to be involved in the killing. Since then, the group has produced several stories complete with audio, video, and photo presentations, the most recent of which is a series by retired Santa Rosa Press-Democrat reporter Mary Fricker detailing the sexual assault allegations made by young women once in the custody of Yusuf Bey Sr., founder of the bakery. Fricker received help from independent radio journalist Bob Butler, investigative reporter A.C. Thompson, and MediaNews staff writers Cecily Burt, Thomas Peele and Josh Richman. Other stories have reported allegations of real estate fraud against bakery associates, explored potential coconspirators in Bailey’s death, and examined the bakery’s ties to several prominent politicians. More about the project — the first of its kind since a group of journalists investigated the murder of Don Bolles more than 30 years ago in Arizona — can be found at chaunceybaileyproject.org, or at www.sfbg.com/news/chaunceybailey.

Public Official

MARK LENO


It was a staff member, Kathryn Dresslar, who told Assemblymember Mark Leno how horrible state agencies had become at complying with the California Public Records Act. Dresslar served on the board of Californians Aware, a group that advocates for open government, and she described to her boss how a 1986 audit by the organization had given every one of the 33 agencies in California government a failing grade.

Ryan McKee, then a high-school student and the son of CalAware board president Rich McKee, had visited each agency and asked for a few simple things. He wanted to see each agency’s guidelines for public access, and he requested some basic information, including the salary of the agency director. Agency after agency refused to follow the law.

So Leno introduced legislation that would have mandated that every agency post its access guidelines on the Web — and included stiff fines for agencies that violated the Public Records Act. "It put some teeth into the law," Leno told us. "And I got 120 of 120 members of the state Legislature to vote for it.

That wasn’t enough for Gov. Arnold Schwarzenegger, who vetoed the bill, saying it wasn’t needed. The governor insisted that he had already ordered state agencies to fix the problem.

"It was a great eye-opener for me, and showed me the resistance this administration has to allowing public access to state government," Leno said. "Without that access the public is at a great disadvantage."

Library

UC BERKELEY’S BANCROFT LIBRARY LOYALTY OATH PROJECT


It might be hard to believe, but in 1949 the University of California Regents, a bastion of higher education, rode the wave of anticommunist fervor and McCarthyism, forcing all UC employees to take a loyalty oath. The Board of Regents adopted the rule that UC administrators pushed forth: denounce communism and swear loyalty to the state, or face losing your job.

As could be expected, people resisted and 31 faculty, workers, and student employees lost their jobs. They appealed the case to the California Supreme Court and eventually were reinstated in 1952, but the controversy cast a pall over the UC’s reputation and divided campuses. With the help of a grant from UC President Emeritus David Gardner, archivists from UC Berkeley’s Bancroft Library and other researchers painstakingly compiled 3500 pages of text, many audio statements, and photos from four UC collections.

The online collection, which went live in December 2007, serves as primary source material for students and researchers who want to understand how UC administrators got embroiled in and came to terms with the McCarthy-era tensions that rocked the country.

Legal Counsel

RACHEL MATTEO-BOEHM


Electronic data is the new frontier for public-records law, and Rachel Matteo-Boehm, a lawyer with Holme, Roberts and Owen, last year won a key case preserving the public’s right to access to what some public agencies have tried to claim was proprietary data.

The county of Santa Clara produced a digital map showing property lines, assessors parcels and other key real-estate data, and that became the basis for a geographic information system tool. The GIS would allow users to plot everything from property taxes to street repairs, public investment, political party registration, school test scores and other trends. But Santa Clara wasn’t giving it out to the public: The database cost more than $100,000, which meant only big businesses could use it.

Boehm went to court on behalf of the California First Amendment Coalition to argue that the data was public, and must be made available without high charges. "As information begins to be collected in electronic form, and governments choose to put information in sophisticated electronic formats, you can run into real public-access problems," Boehn told us.

Boehm convinced a Santa Clara Superior Court judge that the data was indeed covered under the California Public Records Act. Now Santa Clara must make the map available to the public — and other counties with similar data, seeing the results of the suit, are following that rule.

The decision was a key one, Boehm said: "One day we’re going to wake up and all there will be is electronic records," she noted. And if governments can apply different rules to those documents, "you can kiss the Public Records Act goodbye."

Whistleblower

DAN COOKE


When Dan Cooke shared details of an alleged sewage spill on Alcatraz Island with the Guardian, the health of the national park — where he’d been working as an historical interpreter for over a decade — was foremost on his mind. But he lost his job after the story was published — apparently for taking a proactive role in noting details of the spill in the island’s log book and speaking candidly to the press about what he’d seen. Wanting nothing more than a return to his job leading educational tours of the island, he filed an administrative claim with the US Department of Labor against the Golden Gate National Park Conservancy and the National Park Service. And he called the Guardian. We reported his firing. The next time Cooke called, it was to happily report he was back on the job.

Citizen

SUPERBOLD (BERKELEYANS ORGANIZED FOR LIBRARY DEFENSE)


SuperBOLD has accomplished something entirely different from what it set out to do. Originally, the small group of devoted Berkeley public library users organized to oppose the installation of RFID tags in books. "In the process of going to library board of trustees meetings, we discovered they were vioutf8g the Brown Act," said Gene Bernardi, who heads SuperBOLD’s steering committee with Jane Welford, Jim Fisher, and Peter Warfield. They found, among other things, that certain documents were only made available to trustees and a lottery system was employed in selecting speakers during public comment. They took their complaints to the Berkeley city attorney and joined up with the First Amendment Project, which threatened a lawsuit. Things have changed, though it’s still not perfect — city council meetings only allow 10 speakers and the library trustees still play the lottery for public comment, but marginal improvements portend better days.

"Now you can speak more than once," said Bernardi. "Now you can speak on consent calendar and agenda items. So there are more opportunities to speak … if the Mayor [Tom Bates] remembers to call public comment."

Electronic Access

CARL MALAMUD, PUBLIC.RESOURCE.ORG


For years, web pioneer Carl Malamud has sought ways to use the Internet to connect average citizens with their government. His new Web site public.resource.org helps that cause by excavating buried public domain information and posting it online. Though still in its early stages, the site already allows users to tap into hard-to-find records from places like the Smithsonian, Congress, and the federal courts system.

Even though most government records are part of the public domain, fishing them out from the bureaucratic depths can be a daunting and expensive task, even for someone like Malamud. During a lecture at UC Berkeley last year, he related his recent difficulties in acquiring a simple database from the Library of Congress. Instead of turning over the materials, officials at the Library cited dubious copyright protections and presented Malamud with a bill for over $85,000 — all for access to supposedly public information.

Thanks to Malamud’s Web site, that database and millions of other documents are now available with the click of a mouse. Ultimately, Malamud hopes public.resource.org will help bring about an age of "Internet governance," in which every last byte of public data winds up online for all to see, free of charge.

THE SOCIETY OF PROFESSIONAL JOURNALISTS
NORTHERN CALIFORNIA CHAPTER presents the 23RD ANNUAL JAMES MADISON FREEDOM OF INFORMATION AWARDS DINNER

MARCH 18, 2008
NEW DELHI RESTAURANT
160 ELLIS STREET
SAN FRANCISCO
No-host bar @ 5:30 p.m.
Dinner/Awards @ 6:30 p.m.

TICKETS:
$50 SPJ members & students
$70 General public
For more information, contact David Greene (dgreene@thefirstamendment.org)

>

Chemicals and quarantines

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› sarah@sfbg.com

As the California Department of Food and Agriculture (CDFA) pushes ahead with plans to aerially spray the Bay Area with pheromones to eradicate the light brown apple moth (LBAM), the San Francisco Board of Supervisors has signed onto state senator Carole Migden’s efforts to ask CDFA to put a moratorium on the spraying.

"We haven’t seen this level of concern and debate since the medfly days of then governor Jerry Brown," Sup. Ross Mirkarimi told the Guardian. "At this point, spraying sounds premature and reckless, even though I understand this is a nasty invasive pest."

Meanwhile, four members of the California State Assembly, including San Francisco’s Mark Leno, are working collaboratively on a group of LBAM-related measures to address health, scientific, and efficacy issues that remain unresolved since the agency’s multimillion-dollar eradication campaign began last year.

Leno’s part in this collaboration with fellow assembly members John Laird, Loni Hancock, and Jared Huffman involves demanding that CDFA complete an environmental impact report (EIR) before being able to apply pesticide in an urban area for LBAM eradication, which can be a lengthy process.

"By making this an urgency measure, it would take immediate effect," Leno told the Guardian. "We recognize that urban areas are concerned about health and safety, that LBAM is a real threat to the agricultural industry, and that the other side must be considered."

Last year, the United States Department of Agriculture (USDA) and CDFA both gave LBAM emergency status after the tiny, leaf-rolling Australian native was found in a Berkeley backyard, the first time it was confirmed in the continental United States.

As the USDA’s Larry Hawkins told the Guardian, the federal declaration of emergency allowed his department to access the Commodity Credit Corporation, a federally owned and operated entity within the USDA that supports and protects farm income and prices.

So far, the USDA has allocated $90 million to cover the costs of what Hawkins called "an expensive regulatory program," along with those of developing suitable pesticides and a nationwide survey to see if the moth has spread beyond California.

Hawkins claims the state separately declared an LBAM emergency — a move that allowed CDFA to go ahead and abate the pest — and that impacted the state’s normal EIR process.

"Emergency status doesn’t relieve [CDFA] of EIR requirements, but it allows them to do it simultaneously," Hawkins explained.

Since then some citizen activists have challenged the moth’s emergency status, claiming that there is no evidence that LBAM has severely damaged or infested local crops. But Hawkins says this purported lack of evidence proves that the government’s eradication program is working.

"We know the insect exists, that it destroys crops in other countries, and now you find the same insect here," said Hawkins, whose department has predicted that LBAM could inhabit 80 percent of the United States and nibble on 2,000 plant species.

"So, we can logically conclude it will cause damage here. The reason you haven’t seen major damage here is because we’ve found it early enough to deal with it before it becomes substantial. And the reason you won’t find reports of major LBAM damage in New Zealand or Australia is because they are constantly using pesticides," Hawkins said.

Asked if the USDA will fully disclose the ingredients of any product the state plans to use aerially, Hawkins said, "We cannot force a private company to reveal all their ingredients. But we have told all those companies that hope to provide products that they should expect to reveal them all."

Critics of the state’s pheromone spraying program observe that Suterra LLC, which manufactured the spray used over Santa Cruz and Monterey counties, refused to release the full ingredients until it was sued — and Gov. Arnold Schwarzenegger demanded immediate full disclosure.

These same critics also note that Schwarzenegger, who continues to support CDFA’s LBAM-eradication program, received $144,600 in campaign contributions from Los Angeles–based Roll International owners Stewart and Lynda Resnick, who control Suterra, Fiji Water, Paramount Agribusiness, and the Franklin Mint.

Records show the Resnicks donate broadly, mostly to Democrats — including the gubernatorial campaigns of Steve Westly and Phil Angelides, and US Sens. Hillary Clinton, John Edwards, and Barack Obama — with a lesser-size donation to Republican presidential front-runner John McCain, proving they play both sides of the fence.

With researchers testing a variety of LBAM-related products in New Zealand, Hawkins hopes to have a product formulated for California by June 1, which is when spraying is scheduled to resume in Santa Cruz and Monterey; spraying in the Bay Area is set for Aug. 1.

"We would like to give communities maximum notice, but we’re also working towards a beginning-of-June date, and as much as we’d like to insert artificial time frames, the insect couldn’t care less. It’s on a biological time table and is multiplying every day," Hawkins said.

David Dilworth of the Monterey nonprofit group Helping Our Peninsula’s Environment, which advocates the use of targeted pheromone-baited sticky traps, conceded that even if CDFA was forced to stop the aerial spraying, the USDA could spray anyway.

"But it would take them several months to organize, and we don’t believe they have the constitutional power," claimed Dilworth, whose organization is preparing a 60-day notice of intent to sue the USDA and the United States Environmental Protection Agency.

Meanwhile, organic farmers find themselves in an uncomfortable limbo that continues to shift. Take the Santa Cruz–based California Certified Organic Farmers (CCOF). Last fall, CCOF supported the aerial pheromone spray after the National Organics Program approved it, meaning sprayed farmers didn’t lose organic certification

But March 4, CCOF spokesperson Viella Shipley told the Guardian that the group is about to release a revised position on the spraying, and could not comment further "because CCOF’s government affairs committee has not yet approved this revised position."

"We lobbied for an organically approved product and supported it last fall when lots of our members were suffering because they were in quarantine and couldn’t sell beyond county lines," was all Shipley would say.

Meanwhile, organic farmers who spoke on condition of anonymity largely supported aerial spraying for economic and environmental reasons.

"If the moth isn’t dealt with now, it’ll become a bigger problem, from both an environmental and toxic perspective," one farmer told us, citing the already high costs of controlling such bugs as coddling moths and medflies.

"This is somebody else’s pest at the moment, a nonnative pest," he said. "If farmers have to start dealing with LBAM as well, they’ll be ruined."

He also cited his belief that there aren’t 40 million pheromone-soaked twist ties on the market, which is what the CDFA claims is needed to blanket infested counties from the ground up with female pheromones to confuse the males.

Nigel Walker, an organic farmer in Dixon, recalled the devastating costs of quarantine thanks to a medfly-infested mango that someone brought back from Hawaii.

"Their vacation cost me $60,000 because of lost sales," Walker said. "So, for God’s sake, don’t bring, mail, or FedEx fruit and vegetables into California, because border inspectors are looking for bombs and terrorists, not produce and moths.

"We live in a global economy, and we have trade agreements that say if one person gets a pest, you have to do something about it," Walker added. "Nobody wants to be sprayed. Even when I spray organic seaweed on my fruit trees, I wear a mask. So I understand the gut reaction. But by refusing to be sprayed, you’re punishing the wrong person — the farmer — who already has to deal with the vagaries of the weather, the marketplace, and pests like the medfly."

Chris Mittelstaedt, who lives in San Francisco with his family and runs Fruitguys, a small business that delivers organic fruit to offices, said he’s personally against the spraying. "But as a company, we are going to wait a few weeks before letting people know what we officially think or endorse as a plan of action," Mittelstaedt told us.

Other city dwellers are less ambivalent. Frank Eggers, a former Fairfax mayor who is organizing a group called Stop the Spray, said, "[World Trade Organization] stuff is driving this so-called moth emergency.

"We’re allowing other countries to quarantine our produce. And with the global economy, climate change, and travel, we’re going be facing this issue continuously. But we can’t keep putting poison on our land, or say we’ll put you in quarantine if you don’t accept our aerial bombardment," he said.

Paul Schramski, state director of Pesticide Watch, worries that the state and federal agencies are still not listening to the people of California.

"If this is not being driven by trade agreements, then I’m not sure what is the driver. We don’t have all the facts. But it’s not being driven by actual crop damage," Schramski said. "We agree that this invasive moth should be controlled, but it’s a false premise to believe that the choice is between aerial spraying or nothing. The state has known since August that the public was opposed to spraying, so why aren’t we producing more twist ties?"

CDFA, which used $500,000 in USDA funds to hire PR agency Porter Novelli last November at the height of public outcry, is currently researching pheromone products that last up to 90 days and is also planning to use pheromone-loaded twist ties, sticky traps, and stingerless parasitic wasps in its LBAM program.

"We believe this to be a biological emergency," CDFA public affairs supervisor Steve Lyle told us. "If we waited a year or two, so we could first do an EIR, we would lose the battle and become generally infested."

Ironically, California’s best hope for not being sprayed ad infinitum may lie in the discovery that the moth has spread to other states.

"It would make a significant impact if we were to find the insect established in other places," the USDA’s Hawkins told us. "It doesn’t mean we would throw up our hands and walk away, but it would remove some of the argument that the rest of America is at risk from California if other states already have it."

But until that time, Hawkins warned that if state legislators demand a moratorium, forced spraying won’t be the federal government’s only option: "Maybe California would have to be quarantined. And now we are talking about hundreds of millions of dollars."

Editor’s Notes

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› tredmond@sfbg.com

When Jerry Brown was governor of California, he was almost done in by the Mediterranean fruit fly. So he knows a thing or two about bug infestations and aerial spraying.

It was 1981, and Brown, approaching the end of his second and final term, was running for a spot in the United States Senate. He was the odds-on favorite to win the seat being vacated by the Republican S.I. Hayakawa; his chief Republican rival was a mild-mannered and hardly charismatic San Diego mayor named Pete Wilson.

But that summer, the fruit flies, known as medflies, started showing up in residential areas, mostly in gardens and fruit trees outside of San Francisco. Farmers worried that the pest could spread to the central valley and points south — and experts warned that the state stood to lose $1 billion per year if the agricultural industry got hit.

The flies breed rapidly and turn fresh fruit to mush. That would have been bad for growers. Even worse, the rest of the country was so worried about the tiny creatures that any sign of a commercial crop infestation might have led to a nationwide boycott of California produce.

Brown, still the staunch environmentalist, ordered the California Conservation Corps to strip the fruit off trees in the affected areas, and he ordered the release of millions of sterile flies to interrupt the mating cycles. As it turns out, the shipment of supposedly sterile flies from a Peruvian lab included at least some that were fertile; Brown argued that the error prevented the ecologically sound alternative from working.

But for whatever reason, the flies continued to spread — so the chorus from agribusiness got louder and louder. They wanted aerial saturation spraying of the pesticide malathion.

But Brown resisted. "All I could think about," he told me 10 years later, "was poison raining down from the sky."

That’s all a lot of environmentalists could think about too. The governor was knocked around like a ping-pong ball, to the delight of a mainstream media that never much liked or respected Jerry Brown. And in the end, he caved: helicopters, flying five abreast in military-style formation, began carpet bombing hundreds of square miles of mostly residential areas, dumping a chemical that a lot of critics argued could have untold long-term health effects.

The indecision pissed off the conservatives. The final outcome pissed off the environmentalists. Brown lost the Senate race.

When I talked to him about the decision, it was 1991 and I was writing a book — and Brown was mounting a surprisingly strong run for president. In retrospect, Brown thought the spraying was wrong. He thought he had to do it, but he felt horrible about it. Back then, he was a progressive populist.

And now he’s California’s attorney general, and he’s defending the state’s plans to bombard San Francisco, Marin, and the East Bay with an artificial pheromone wrapped in tiny plastic bubbles to eradicate the light brown apple moth (see page 10). I know all the arguments, but please: I have two little kids now. It’s a nasty chemical, raining down on us from the sky.

The medflies came back. So will the moths. Brown wants to come back to his old job too. You wonder if he’s learned anything.

No aerial spraying

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EDITORIAL The tiny light brown apple moth has become a huge environmental deal in Northern California. Ever since a retired entomologist found one in his Berkeley back yard a year ago, state and federal agencies have been in full attack mode. Now they’re preparing to send a fleet of airplanes to dump thousands of gallons of pest-control spray over San Francisco and the East Bay this summer. The aerial bombardment is likely to be ineffective — and it may have serious health impacts on humans. It’s a bad idea, and it needs to be stopped.

As Sarah Phelan, who first broke this story, reports on page 10, that won’t be easy: the California Department of Food and Agriculture is holding public hearings on the spraying but has insisted it will go forward no matter how much opposition emerges. State Sen. Carole Migden is trying to block the plan in the Legislature, but the governor will likely veto any bill she can get passed. So it may be that the only way to prevent San Franciscans from facing a pesticide carpet-bombing the first week in August is for somebody to file a lawsuit.

The moth frightens farmers because its larvae eat a wide variety of plants. The tiny caterpillars could do more than $600 million worth of damage to the state’s crops every year, the CDFA says.

The pest is native to Australia and had never before been reported on the United States mainland. So the authorities decided that the best solution was to eradicate it — and that the most effective way to do that was to drown the affected regions in a chemical called Checkmate.

Checkmate isn’t a poison, the way some of the nastier pesticides are. It contains an artificial version of a pheromone that female moths release to attract males during mating season. The idea is that if the pheromones are floating around in the air, the boy moths will get confused and never find the girls, and eventually the population will die out.

The mating scent is delivered in tiny bubbles of a plastic-type substance. Over time, the little capsules melt and the pheromone is released into the air. The way the state describes the spray, it can take up to 70 days for all of the active ingredients to become airborne. One application is supposed to last throughout the moth’s mating season.

But this theory has never been tested on a large scale, and some critics say it’s unlikely the pheromone assault will actually wipe out the brown apple moth population. If even just a few of the creatures manage to mate and produce offspring, the whole effort could be a failure.

The CDFA insists that Checkmate is totally safe for humans and pets, that it contains nothing toxic, and that the moth pheromone has no impact on anything other than this one type of insect. But the advisory label on Checkmate cans warns people who are applying the stuff to wear protective clothing and masks. The tiny capsules (which are not biodegradable) can’t be good for people with respiratory issues. Some residents of Santa Cruz and Monterey counties, where a first batch was sprayed last summer, reported health effects.

And we’ve been around long enough to distrust officials who tell us that chemicals sprayed into the air are perfectly safe. As one Vietnam veteran testified at a public hearing last week, the government used to say that Agent Orange was harmless too.

San Francisco and the East Bay are dense urban areas with millions of people — hundreds of thousands of them children. If the health impacts of massive aerial spraying of moth pheromones are not definitively known, it’s a bad idea to go forward.

We recognize that the moth is a threat to agriculture; so are thousands of other pests. Organic farmers manage to produce crops every year without dumping chemicals on them.

There was a time when a governor named Jerry Brown stood his ground and refused to allow aerial spraying of a toxic chemical called malathion to kill Mediterranean fruit flies. Ultimately he backed down and allowed the spraying — and in retrospect he admits that was a mistake. Brown is now the state’s attorney general, and there’s talk that he’d like his old job back. If he wants to demonstrate that he’s a real environmentalist, he ought to file suit to block the spraying.

Since that’s unlikely, it’s going to require an environmental group with the resources and legal support to take this to court. San Francisco’s full of them; someone needs to step forward.

Jerry Brown gives City green light to sue Jew

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Photo by Charles Russo

The sun may be shining, but it’s raining legal cats and dogs for suspended Sup. Ed Jew.

On the eve of a preliminary hearing by the City’s Ethics Commission into charges of official misconduct by Supervisor Jew, California Attorney General Edmund G. Brown Jr. has granted City Attorney Dennis Herrera’s application for leave to sue in quo warranto to remove Jew from the Board of Supervisors for failure to comply with the City Charter’s residency requirements .

The ruling comes a little more than three weeks after Mayor Gavin Newsom initiated official misconduct proceedings against Jew and suspended the District 4 supervisor, replacing him, at least for now, with political rookie Carmen Chu.

City Attorney Herrera says that in llight of the Ethics Commission’s preliminary hearing tomorrow, he intends, “to carefully evaluate” the legal options.
“In the coming days, I will decide how best to represent the City’s interest in concluding a crisis that has clouded the legitimacy of San Francisco’s representative government for too long,” Herrera said in a press release.

Tomorrow’s preliminary Ethics Commission hearing takes place at 1:30 p.m. in Room 416, City Hall.

Get your “No more nukes” on

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photo courtesy of wolf.like.me on flickr

That’s right, break out the picket signs — your favorite apocalypse is on the reprise. Irvine Rep. Assemblyman Chuck DeVore has introduced legislation to repeal the 31-year ban on new nuclear power plants and launched a ballot initiative. On Sept. 12, the state’s Republican party unanimously voted to support the bill for more nuclear power, which is being touted as safe, clean, reliable, and affordable — all adjectives the industry has yet to merit.

It’s also being called “emissions-free,” a handy moniker for a power source in our globally-warmed future. It’s being promoted by pro-clearcutting, pro-GMO “environmentalists” that happen to pull paychecks from the nuclear industry.

Pro-nukes fans are now gathering the 433,000 signatures needed to put the bill on California’s June 2008 ballot.

A 1976 California state law banned new nuclear plants until a permanent storage facility for the radioactive waste was established. Meanwhile, said permanent facility – Nevada’s Yucca Mt. — suffered another setback on Sept. 4 when a federal judge ruled the state could suspend water permits for drilling at the site – further delaying a project that is already seven years overdue.

Spent-fuel nuclear waste is currently stored on the sites of nuclear power plants – which has raised concerns about safety from terrorist attacks. CA Attorney General Jerry Brown recently filed a petition with the Nuclear Regulatory Commission, arguing that its waste confidence ruling is inadequate – meaning, we don’t have much faith in your determination that the pools of water where used up nuclear fuel rods bob like swimming pool toys are safe.

Importing injustice

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› news@sfbg.com

More than 100 tractor trailers were lined up at 6:30 a.m., inching toward the Port of Oakland’s Terminal 7, waiting for their next load. Against the backdrop of the San Francisco skyline, a mammoth freight ship emblazoned with the name Hyundai glided toward the port, pregnant with multicolor shipping containers.

A driver told the Guardian that he expected to be in line for at least two hours waiting to drop off the empty container attached to his big rig. His 1989 truck lacks air-conditioning, so the windows were rolled down, allowing diesel exhaust to pollute the air he was breathing.

It’s the same scene at many of the port’s other terminals: long lines of ancient trucks slowly snaking toward their destinations, their primarily immigrant drivers performing the essential and thankless task of transporting cheap clothes from Asia to the nation’s big-box retailers or helping to export California’s agricultural goods to Hawaii.

The fourth-busiest container port in the nation, the Port of Oakland is the economic engine of the region, providing thousands of jobs and more than $1 billion in revenue. But activists say that the port system has also led to sweatshoplike conditions for truckers and created a health crisis for the surrounding community.

On their poverty-level wages, truckers are usually able to buy only the oldest, most polluting trucks. Their diesel pollution is a major factor driving asthma rates through the roof in the neighboring, primarily African American neighborhood of West Oakland, where, the American Lung Association says, one in every five kids has asthma.

A new national coalition of labor, environmental, and community activists has advanced a proposal that would make all drivers employees with benefits, radically changing the way work is done on the waterfront and possibly heralding the return of the Teamsters to the ports for the first time in more than 20 years. In the process, the proposal would make the port’s biggest customers responsible for its environmental problems.

The coalition places the blame for the current situation squarely on giant retail shippers such as Wal-Mart and Target and is calling for them to be held accountable for the full environmental and labor costs of the cheap goods they sell — a call the corporations are strenuously resisting. The American Trucking Association, whose members contract directly with the corporation, has threatened a lawsuit if the change is adopted. But port officials have voiced a willingness to seriously consider implementing the proposal.

Having long claimed that the trucking industry is outside its control, the Port of Oakland could embrace the proposal as a means of satisfying community, environmental, political, and business concerns. With impending directives to clean the air coming from Sacramento, trade planned to almost double by 2020, two new Port Commission appointees representing labor and environmental concerns, and a federal antiterrorism tracking plan slated for this fall, the port is poised to play a leadership role that could reverberate up and down the West Coast and across the country.

THE TRUCKER’S LIFE


The Port of Oakland’s estimated 1,500 to 2,500 drivers are a far cry from the middle-class, long-haul Teamsters and the Smokey and the Bandit–<\d>style freewheeling rebels who have long been engrained in the American imagination. Instead, they are at the bottom of the port’s food chain and are the most exploited trucking sector in the country, consisting primarily of recent immigrants struggling to make ends meet.

Dawit Fre, 39, immigrated to Oakland from the small nation of Eritrea two years ago. "I wanted to see a better life," he told us. Fre was a driver in Africa and went to work for the Port of Oakland after his cousin told him people start their trucking careers there. He said he works up to 60 hours a week for one company, making the equivalent of about $8 an hour after expenses.

Fre arrives at work every day no later than 6:30 a.m., waits for dispatches from his company, and spends a minimum of two hours in line for each container he picks up or drops off. He is paid $42 for each load by the company. He doesn’t know how much the trucking companies make but has heard that some get $200 per load. He returns home around 6:30 at night.

"The whole time I’m at the port, I’m thinking about my family," he said. "I got children. The only thing I’m thinking inside the terminal is, how many moves am I going to do? Am I going to do four or five or three or two?"

On a good day he can get four, on a bad day as few as one, depending on the length of the lines and the generosity of the dispatcher. Then there are his expenses. As an independent operator, Fre is solely responsible for a tankful of diesel that costs him up to $250 a pop. DMV registration is $178 a month, and 12 percent of his weekly earnings goes to his boss for insurance on his truck, not to mention annual federal income tax.

He receives no benefits, no overtime pay, and no health care coverage at a time when his wife, a diabetic, is suffering from severe stomach complications. "I’m taking her to Highland Hospital," he told us. "If it’s easy for them to fix, they can do it. But if she has a big problem, they can’t do it."

Fre has his own health problems. "Most of the drivers, we have old trucks," he said. "You don’t have AC, your windows are down, and you get sick in the truck" from the diesel. Fre’s remedy for his persistent coughing and the burning in his throat is several glasses of milk after each day of work.

A 1998 study published in the Journal of Independent Medicine found that truck drivers face a risk of cancer 10 times greater than Occupational Safety and Health Administration–acceptable levels, and a 1990 study published in the American Journal of Public Health showed that truckers face nearly double the average lifetime lung cancer risk.

Fre has little money to invest in his truck, a ragged 1987 model that he said needs $5,000 in repairs. He doesn’t trust it on the freeway, so he’s asked his dispatcher to send him only from pier to pier, not outside the port, further dipping into his earnings. "I came here to see a better life," he said. "When I got here, I found it is different. Here we don’t get paid for the overtime. We don’t get benefits. When I get into the terminal, there is no respect."

His experience is typical of those of port truckers across the country. A study by the East Bay Alliance for a Sustainable Economy, a labor-affiliated think tank, found that the average Port of Oakland trucker makes as little as $8 an hour after expenses, works 11 hours a day, and spends two and a half hours in line per load. Almost none of the truckers reported receiving benefits on the job, and 66 percent don’t have health insurance.

This is consistent with data from a 2004 survey of port truckers in Los Angeles and Long Beach, conducted by a professor of economics at California State University Long Beach. That report found they had a median income of $25,000 a year after expenses and an average workday of 11.2 hours, with up to 33 percent of their time spent waiting in line.

Port truckers generally drive only the oldest, most polluting trucks because that’s all they can afford. An industry adage is that ports are "the place trucks go to die," a reality that has dire impacts on the surrounding communities.

POLLUTING THE COMMUNITY


West Oakland has long been a dumping ground for the Bay Area’s toxic waste. The community has one of the five highest asthma hospitalization rates in California, with an estimated 20 percent of its K–<\d>12 students suffering from the disorder, according to the ALA. Researchers at the University of Southern California have found that children living within a few hundred meters of freeways leading out of ports not only are more likely to suffer from asthma but also actually develop smaller lungs.

Margaret Gordon, a 60-year-old community health activist who has lived just blocks from the Port of Oakland for 15 years, told us that she and four of her grandchildren living with her all suffer from asthma. When one grandchild was born with severe asthma and her own asthma worsened after she moved to West Oakland, Gordon, then a housekeeper, started reading about the causes of asthma and made the connection to the port. Like many in the low-income neighborhood, she cannot afford to move elsewhere in the Bay Area.

Gordon has been fighting for clean air for more than a decade, and in April she was inducted into the Alameda County Women’s Hall of Fame for her work. In 2001, Gordon formed the West Oakland Environmental Indicators Project, which she now cochairs. The project has released more than half a dozen studies related to air quality. A 2003 report showed that trucks traveling through West Oakland in one day produce the same amount of toxic soot as 127,677 cars, leading to indoor air in some neighborhood homes that is five times more toxic than that in other parts of the city.

Still, Gordon told us that port officials are "only starting paying attention." Last year the California Air Resources Board passed a resolution related to air quality at ports and announced that it was developing a regulatory mechanism. A 2006 CARB report found that truck diesel exhaust accounts for the majority of the estimated 2,400 deaths related to freight transport each year and 70 percent of the state’s air pollution–<\d>related cancer risk. Freight transport will cost California residents $200 billion in health costs over the next 15 years. Most of this is borne by low-income communities of color near freight transport hubs.

The combination of state mandates and local community concerns is starting to spark a change. "They would sit down and talk with us before that, but there was not anything concrete done," Gordon told us. The port is now in the early planning stages of an air-quality-improvement program, working with Gordon and other activists.

That movement is getting vigorous new support from the Coalition for Clean and Safe Ports, a national partnership of labor, environmental, and community activists organizing at the country’s major container ports: Los Angeles, Long Beach, Miami, Oakland, New York–New Jersey, and Seattle.

"Every one of those ports has the same environmental and labor problems we have in Oakland," Doug Bloch, the coordinator for the coalition in Oakland, told us during a tour of the port’s heavy industrial landscape. Virtually all of its 900 maritime acres are covered by concrete and asphalt, monster cranes that inspired Star Wars‘ Imperial Walkers, and 20-foot steel containers stacked up like Legos behind chain-link fences.

The Port of Oakland has no direct relationship with its truckers at the present. Shippers take price bids from among roughly 100 trucking companies at the port, then contract the work to the independent-contractor truckers. The CCSP says bidding wars lead to poverty wages for truckers, older trucks and more pollution, and a chaotic port full of inefficiencies like long pickup waits.

Under the proposed system, ports would call on their ability as landlords to set standards for the trucking and shipping companies. They would require trucking companies to hire drivers as employees, shifting maintenance costs from the drivers to the companies, which would retrofit or replace all port trucks with more environmentally friendly rigs. The ports would allow only new, cleaner trucks to enter. The companies could then, in theory, pass the costs on to shippers and end users.

If drivers were paid as employees by the hour instead of by the trip, the coalition expects the market would reduce inefficient truck wait times and air pollution.

"When you rent an apartment you sign a lease," Bloch told us. "If you trash the place, you get evicted. Corporations are trashing this community, but they’re not being evicted."

A test case could soon be under way at the ports of Los Angeles and Long Beach, the two largest in the United States, and the situation is being closely watched by ports and industries across the country. Port commissioners there had hoped by the end of this month to approve the coalition’s program, which they expect to reduce diesel truck emissions by as much as 80 percent over the next five years. But growing opposition and the threat of lawsuits by groups like the California Trucking Association, which represents the owners of truck companies, and the Waterfront Coalition, a consortium of major retailers, led the ports to delay their decision. The commissioners now expect to vote in September after completing an economic impact survey.

At the center of the storm is the fact that as employees, truckers would be able to organize and form a union. As independent contractors, they are barred from doing so because of antitrust laws originally created to oppose vast enterprises that dominated industries. (A further irony is that giant retail steamship companies have experienced incredible consolidation and enjoy a limited antitrust immunity.)

If passed by LA port officials, the plan would be implemented there starting Jan. 1, 2008, and could result in a domino effect at the other, smaller ports across the country. "The industry is fighting like hell in LA," Bloch told us. "They know that if they’re going to have to pay, the party’s over."

Meanwhile, Bloch told us that more than 1,000 truckers have signed a petition asking the Port of Oakland to pass a version of the coalition’s proposal, and it will be presented to the Port Commission, the seven-member body that would eventually vote on the proposal. Spokesperson Libby Schaff told us that the port "agrees with the coalition that the port can and should have a more direct relationship with its truckers" and is "very seriously considering the coalition’s proposal."

Because the proposal "constitutes a major overhaul of the way trucking is done today," Schaff said the port is currently holding stakeholder meetings with residents, truckers, terminal operators, elected officials, the business community, and labor to consider it in the context of a more comprehensive port plan. Schaff said a comprehensive plan could be crafted in less than a year.

The port has not taken a position on granting truckers employee status. It is also looking into other funding mechanisms for a clean-truck program, including money from a pending state bill that would impose a $30 fee on every 20-foot-equivalent unit passing through the Los Angeles, Long Beach, and Oakland port complexes, to be used for improvements in road and rail infrastructure and for clean-air programs.

The legislation, Senate Bill 974, by Alan Lowenthal (D–Long Beach), would generate more than $525 million annually. But it faces tough opposition from some very powerful interests.

RESISTING CHANGE


Bill Aboudi, president of Oakland’s AB Trucking and a member of the CTA, told us truckers are "treated like second-class citizens," and he believes long lines and trucker asthma are serious problems. But he strongly opposes the coalition’s proposal. Instead, he told us, state regulations like those forthcoming from CARB and other piecemeal reforms are the answer.

"The coalition’s main goal is to unionize the drivers," Aboudi said. He was wearing a baseball cap emblazoned with two American flags and the words "Oakland Trucker." An immigrant from Israel, he has been at the Port of Oakland since 1992. "If these guys choose to be owner-operators, why are you rocking the boat? You can’t be playing with my livelihood just because you want to get union dues," Aboudi said. "Truckers want to own a piece of the American dream. They want to own their own truck."

It’s an appealing image to many. Kevin Leonard, an owner-operator trucker who contracts with Aboudi and others, told us he doesn’t want to give up his independent status. "I have the freedom to work when I want," he said. "I don’t see how the Teamsters can represent me better than I can."

The trucking industry as a whole says the coalition plan will force away trade and drive out small trucking companies, which will have to maintain the trucks and start paying benefits such as health insurance and workers’ compensation.

Yet Assemblymember Sandré Swanson (D–Oakland) brushed aside those arguments. "I’ve been involved in Bay Area politics for more than 30 years," he told us. "I’ve seen these same claims made against farmworkers as they were organizing for better conditions. I’ve seen these arguments made when we were raising the minimum wage. I think the opposite is true. If you have a workforce with a livable wage, it’s a more productive workforce, and I think everyone benefits. Truckers deserve more, and we’re going to do what we can to help them."

Oakland City Council president Ignacio de la Fuente, who drafted and helped pass a minimum-wage law for port employees, told us he supports the right of truckers to unionize but labor and environmental concerns must be balanced with economic growth. "You can’t ignore the fact that you have the port of Oakland competing with other ports," he said. "I support the fact that the Teamsters are going to bargain collectively on a national level. This port competes with other ports, and you cannot be put at a disadvantage."

Bloch says the coalition’s target is the shipping companies, not the trucking companies. "The shippers are hiding behind the trucking companies," he told us. "On the one side there are the giant shipping companies, like Wal-Mart and Target, huge global companies that demand low prices from trucking companies. On the other side are tiny trucking companies, immigrant truckers, and communities of color. Wal-Mart’s slogan is ‘always low prices,’ but ‘always low prices’ means one out of five children in West Oakland with asthma and drivers making $8 an hour who can’t support their families."

Oakland mayor Ron Dellums may be signaling his support for reform with two new appointees to the Port Commission. Even before he took office, Dellums was working to influence the Port Commission; as mayor-elect, he requested that outgoing mayor Jerry Brown hold off on appointing a new nominee so Dellums could appoint someone working on environmental and community impacts. He lost this battle when a majority of the city council voted to appoint Mark McClure, the director of marketing at a business technology company focused on security.

Dellums’s latest appointees, announced earlier this month, are a marked contrast to the business-oriented appointees of the Brown era: Victor Uno, a financial secretary with the International Brotherhood of Electrical Workers, and Gordon, the longtime resident and environmental activist in West Oakland.

"The port’s policy has been all about business and not about the people," Gordon told us. "The mayor really wants someone there to talk about health issues. I have never known a mayor to put someone on the commission and one of their engagements is to talk about health." She would also like to see a public participatory-process policy built into the port. "This is about sharing the power," Gordon said. "I don’t think West Oakland residents know they have power." She has "no problem" with truckers unionizing but also wants to find a way for drivers to remain independent contractors if they prefer.

Uno told the Guardian that he is highly supportive of the proposal. "I think that if the whole commission takes the lead of Mayor Dellums that this proposal will be very seriously considered," he said. "I’m very optimistic." Asked if he thought a proposal could succeed without requiring trucking companies to hire truckers as employees, he said, "I do not see how that is possible, given the lack of regulations in the trucking industry. It’s a dog-eat-dog world among independent truckers."

DEREGULATION HISTORY


The ports were not always structured as they are now. Before the 1980s the Interstate Commerce Commission regulated trucking, and most truckers at California ports were members of the Teamsters. They had health care, pensions, and workers’ compensation insurance and were paid a middle-class wage.

As part of a national push toward deregulation in the late 1970s, Congress, spurred by President Jimmy Carter, deregulated the trucking industry in 1980. In the following few years, a flood of new trucking companies entered the ports, with shippers choosing between a growing number of companies for each job. As small trucking companies undercut one another in bidding wars, the falling rates translated into declining driver pay, the bankruptcy of Teamster-organized companies, and increasing reliance on independent contractors whom companies could hire without spending money on payroll taxes, health care costs, or other benefits that unions might try to extract.

Trucking expert Michael Belzer, an economics professor at Wayne State University, has shown that long-haul truckers now earn less than half of prederegulation wages and work an average of more than 60 hours a week, while retailers like Wal-Mart have thrived. "The low rates paid to truckers in this global-trade game acts as a subsidy for increasing the amount of trade," Belzer told us. "Pollution and safety hazards are the negative externalities." If all ports on the West Coast required employee drivers, he said, "the market result would be that cost and safety would go up, and pollution would go down."

There have been a handful of Teamsters-related or trucker-led rallies and work stoppages at the Port of Oakland since deregulation, including a technically illegal strike in 2004 protesting the soaring price of diesel fuel, which virtually shut down the port for eight days. Many of the same complaints of today’s port truckers were aired at that time — long waits in lines, poor pay, long hours, and no benefits.

"This business is like the Mafia," Lorenzo Fernandez, 36, said, standing in front of two metal taco trucks glinting in the noon sun, along with about a half dozen other truckers on their lunch break. "They’re doing whatever they want with us, between the [truck companies] and the shippers. There is so much competition between the companies, and they know that we need the job. They know that our kids will go hungry."

Muhammad Khan, 33, said he’s sometimes forced to make up for long wait times by driving dangerously fast on the freeways. "We have our families. We have to take care of them. We all risk our lives because we have to. We don’t make enough money if we don’t make a load," Khan told us.

"We’re all immigrants here," Fernandez said. "We make it possible for the economy to grow up, but they’re stepping on our faces…. We have to work together. Otherwise we are going to be slaves for life."

A sign on a chain-link fence near the taco trucks reads, "Got an old truck? The Port of Oakland can help! Replace your old truck today!" Call the number at the bottom of the sign, and a recorded message issues an invitation to an informational barbecue that took place four months ago. The message explains that the port will provide qualifying owners with up to $40,000 to replace trucks dating from 1993 or before with a 1999-model truck. But Schaff told us, "Due to overwhelming demand, new applicants are currently not being accepted."

Money for the program came from a $9 million settlement of a lawsuit West Oakland residents filed against the Port of Oakland in 1998, alleging that their health was being harmed by port operations. The port says it will replace a total of 80 of the estimated 2,500 port trucks with those funds. When asked if the port had a responsibility to truckers, Schaff said it was "consistent with the port’s commitment to social responsibility…. We’ve done a lot, and we’re going to do more."

But the only specific programs the port could point to were the truck replacement program, a trucker access committee and working group started after the 2004 strike, and new GPS cell phone technology that is being touted as a solution for bottlenecks. Chuck Mack, the Teamsters’ Western Region vice president, isn’t impressed. "They’re a joke," he said of the programs. "Very few independent contractors have utilized them."

The recent purchase of the GPS system particularly irritates Mack. "Here is a quasi-governmental agency supplying services to the trucking companies," he told us. "It’s bizarre that we’re using taxpayer money for this. Any other industry would buy the devices themselves."

"We don’t disagree with using this money" for truck replacement, Mack said, "but what you’re doing is blowing $2 million in taxpayer money. Years down the road they’re going to need a new truck and another million in taxpayer money. For Wal-Mart and Target it’s great because they can have the taxpayer pick up the bill. Without changing the model, it’s just a short-term fix at the expense of the taxpayer."

EMPLOYEE BENEFITS


Beyond the environmental and economic benefits of making truckers employees of the companies, the change also might improve port security. The federal Transportation Worker Identification Credential program, expected to be implemented in the fall, will check the identities of the nation’s 750,000 port employees, 110,000 of whom work as truckers. Under the present system, there is no way to track the independent port truckers.

Employees are easier to track, and they are also better for port security in other ways. Among low-paid port truckers, turnover rate is extremely high, according to the ATA. "We all know that having a stable, well-trained, reliable workforce only leads to more security," Bloch said. "If they’re trained, they can be the eyes and ears of the port."

Well-paid truckers also would lead to safer ports. In a 2005 report, Belzer showed that "a substantial fraction" of independent operators actually loses money each year, resulting in "a high risk of unsafe operations among those earning the least money." The low compensation also "presents a national security risk," his report read, "since those who desperately work to break even might be at risk to engage in activities that put the nation at risk, whether intentionally or unintentionally, just trying to find a way from not going under."

Driving past another long line of trucks idling outside a gate after lunch break, Bloch pointed out one truck. A placard on the back of the rig read, "End sweatshops on wheels."

The current port system "just heaps abuse and abuse on these truck drivers and this community," Bloch told us. "The big businesses like Wal-Mart don’t pay the cost of polluting Oakland. It’s the truck drivers and the community that pay the cost. People pay with their lives."

"You can’t fix the environmental problems without fixing the problems of the driver," he said. "And now you have labor and the community coming together, and that’s powerful."*

The City College loophole

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EDITORIAL The 2000 law that made it easier for schools and college districts to sell bonds for capital improvements requires every agency raising money this way to create a citizens’ oversight committee to monitor spending. It also mandates regular audits.

But it’s a bit unclear what the audit requirement actually means — and as G.W. Schulz reports on page 15, that’s allowed some outfits, including San Francisco’s Community College District, to get away with spending hundreds of millions of dollars without proper accountability.

Some lawyers argue that school districts need only undergo perfunctory financial audits. Others say the law mandates detailed performance audits. This sounds like a minor point, but it’s not: financial audits only look at what was spent. Performance audits look at how and why — and whether the money was spent in accordance with what the voters were promised.

The City College administration is only now, reluctantly, agreeing to a performance audit, something that should have been done five years ago. The school’s lawyers say bond money can be freely shuffled from project to project, at any time, and there’s no need for regular performance audits.

There’s a simple way to clear this up: Attorney General Jerry Brown needs to issue an opinion on the intent of the law. And if he won’t do that or comes down on the side of unaccountable government, then the state Legislature needs to pass a bill mandating performance audits and requiring that bond proceeds actually go where the voters were told they would.

More Ed Jew fireworks

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By Sarah Phelan

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City Attorney Dennis Herrera issued a statement at about 7 PM tonight, concerning Sup. Jew’s reply brief
to the Attorney General’s in Quo Warranto Action–and Herrera sounded none too pleased.

Maybe it was because Jew’s attorneys filed the beleagured supervisor’s reply brief just moments before the close of business today, (when most of the City had already left early in preparation for July 4.) Or maybe Herrera was incensed by Jew’s attorneys, who are arguing that City Attorney Dennis Herrera’s quo warranto petition, which seeks permission to sue for Jew’s removal from elective office, should be denied.

In a nutshell, Jew’s attorneys say that the City Attorney’s civil case should be stayed pending the adjudication of criminal charges against the District Four supervisor, which means, until the feds are done with him.

All of which got City Attorney Dennis Herrera issuing the following statement, which should be read while drinking beer, watching the fireworks and reminiscing on your favorite Ed Jew story:

“The citizens of San Francisco have a right to legitimate representation in their democracy that clearly outweighs the right of one politician to remain in office in violation of the law. The evidence is overwhelming that Supervisor Jew failed to meet the basic residency requirements to seek or continue to hold his office. It would be a terrible injustice if the legitimacy of our Board of Supervisors were to remain in doubt for the duration of a criminal process, which could take years.”

Herrera’s response brief is due to Attorney General Jerry Brown by July 13, 2007. Thirteen, Huh? That should be interesting. In the meantime, to review all the materials the City Attorney’ has collected as part of this investigation check out www.sfgov.org/cityattorney/ .

Remove Jew now

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EDITORIAL Sup. Ed Jew should have resigned from the Board of Supervisors immediately after admitting to reporters that a May 18 FBI raid of his homes and offices recovered $40,000 in cash that he demanded from a constituent with regulatory issues.

Even if one believes his implausible story about intending to give the money to a playground project, Jew’s actions are still unethical, unseemly, and illegal. Politicians must never, under any circumstances, accept cash payments in exchange for services, and those who do belong in prison.

But he didn’t resign, choosing instead to put his personal ambition and stubborn refusal to take responsibility for his actions ahead of what’s best for the city and his constituents. Then, when public records and testimony from neighbors made it clear that Jew didn’t really live in District 4, as the law requires and as he declared in sworn statements under penalty of perjury, Jew should have been honest with the public instead of spinning still more elaborate and unbelievable lies. Again, he should have done the honorable thing and resigned.

But if the surreal rally his supporters staged June 15 at City Hall is any indication, Jew intends to keep fighting this until someone drags him from the building.

That’s what needs to happen now. It’s no longer about Jew but about whether a system designed to prevent these kinds of abuses works. People need to have their confidence in city government restored, and that requires immediate action by Mayor Gavin Newsom, Attorney General Jerry Brown, and the courts.

District Attorney Kamala Harris did her job when she investigated the residency issue and filed nine felony charges against Jew on June 12. City Attorney Dennis Herrera did his job when he set reasonable deadlines for Jew to prove his residency, then announced June 18 that he was pursuing action to remove Jew from office.

Now it’s Newsom’s turn. The time has come for him to do his job, and that means doing everything in his power to ensure that Jew is ejected from City Hall as soon as possible.

Same thing for Brown, who should immediately certify Herrera’s request to file a quo warranto lawsuit that would deem Jew unqualified for the office he holds and remove him. Whatever Superior Court judge gets the case should put this on the fast track and help give District 4 residents a qualified, reputable representative.

They don’t have that now. And until they do, there is a dark cloud hanging over City Hall that affects everyone inside. It’s time for Jew or the system to remove that cloud. *

How to remove Jew

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Jewsmall.jpg
Photo by Charles Russo

By Steven T. Jones
Why can’t all of Ed Jew’s persecutors just get along? And who is going to finally force the hopelessly tarnished supervisor from office: City Attorney Dennis Herrera, District Attorney Kamala Harris, Attorney General Jerry Brown, the FBI and U.S. Attorney’s Office, Mayor Gavin Newsom, the Ethics Commission, or the Board of Supervisors? Those are just a couple of the many questions that I’ve been seeking answers to over the last few days as I interviewed people close to the case and read the relevant documents, including the voluminous criminal complaint.

What I’ve discovered is that while Harris may have leapfrogged past Herrera (whose deadline for Jew to comply with his requests for information and an interview is tomorrow) and the feds into the lead role, it’s an open question whether her criminal case will convince a jury to convict on most counts, and if there is a conviction, whether Jew will still be a sitting supervisor by then.

Holdin’ the weight of the Bay

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› a&eletters@sfbg.com

Still looks like slavery

But it’s the black legacy

Mistah FAB, "100 Bars"

One night last September, I hitch a ride with G-Stack of the Delinquents and Dotrix of Tha Mekanix to Dem Hoodstarz’s album release party in San Francisco. As we park outside the club, Mistah FAB rolls up with a modest posse. In contrast to his usual iced-out Technicolor clubwear, the man also known as Fabby Davis Jr. is low-key, dressed all in black, a pair of designer stunna shades supplying the main clue to his identity. He hops in Stack’s car to hear a newly laid track for the latter’s upcoming Purple Hood, then we set out for the club, a less than half block journey whose distance is lengthened interminably by a series of well-wishers and business consultations. It’s like following two CEOs across the floor of the stock exchange: Stack is on two cell phones, trying to shake hands with someone. FAB, meanwhile, handles minor transactions, poses for a photo, and takes a call, all while briefing me on the deal he had just signed with Atlantic Records for Da Yellow Bus Rydah, the much-anticipated follow-up to his 2005 disc, Son of a Pimp (Thizz Ent.).

Near the door, a man takes FAB aside. "FAB, you gotta do something about the violence," he says, meaning specifically the 141 homicides in Oakland in 2006 under former mayor and present attorney general Jerry Brown. FAB nods at what is clearly an unreasonable request, albeit one that reflects the disproportionate political burden borne by black entertainers in America. No one would turn to, say, Justin Timberlake to stop violence. Then again, I imagine no one asks Keak Da Sneak either. FAB’s position, in other words, is unique.

Though he made his early reputation as a freestyle battle rhymer and owes his success to hyphy hits like "Super Sic Wit It," FAB’s lyrics seldom stray into gangsta or pimp terrain — the title of his last album is simply literal. Yet he can get down on a track with the most thugged-out MCs. Aside from the giants Too $hort and E-40 and on par with the perpetually hot Keak, FAB is the rapper all Bay Area rappers want on their albums, because he has the biggest buzz on the radio and in the streets. His popularity gives him influence, but FAB commands respect in the hood because he’s from the hood: his compass-based hit "N.E.W. Oakland" was the first major rap recognition of his native North Oakland as a hood. This rapport with the alienated and isolated ghetto youth who constitute hyphy’s core audience separates him from the vast majority of MCs to whom the label "conscious" may be applied.

"You go up to someone in the hood and be, like, ‘Dick Cheney had a heart attack,’ they be, like, ‘Who the fuck is Dick Cheney?’" FAB says later. "But you tell him, ‘Jay-Z donated a million dollars to improve water in Africa,’ they be, like, ‘For real?’ That’s something of their world. Being a Bay Area artist, I’m of their world. So you have the opportunity to teach without them knowing."

"People who have influence," FAB continues, "have an obligation to tell people, ‘Preserve life. Save lives. Help lives.’ But it’s hard to reach people if you’re not giving them something they relate to. The hyphy movement is something they relate to. Hyphy gets you in the door, to open their ears to what I’m saying. It’s up to them to digest it."

That night at the club, FAB exerts his influence. When things get salty between security and Dem Hoodstarz’s East Palo Alto associates, the group calls FAB to the stage to perform their collaboration "Ugh." Things chill out. FAB issues an impromptu plea against violence and murders. These are problems no single person can solve, but FAB is doing his part. Yet by the show’s finale — the "Getz Ya Grown Man On" remix, on which he has a verse — Fabby Davis has left the building. Being Mistah FAB, I realize, can be exhausting.

FOLLOW THE YELLOW BUS ROAD


Mistah FAB’s deal with Atlantic is a landmark in a scene long neglected by the majors. Along with Clyde Carson’s signing with Capitol, FAB’s arrangement — including distribution for his Faeva Afta Entertainment — is the first serious acknowledgment of the renaissance Bay Area rap has undergone in the past three years. Unlike E-40, a regional star who’d already achieved putf8um sales on Jive before his push last year by Warner Bros., FAB’s an unknown quantity outside the Bay. And in contrast to Frontline or the Federation — whose deals came through the respective backing of nationally known producers E-A-Ski and Rick Rock — FAB is the first evidence for a new generation of local rappers that enough talent and dedication can get you signed. It’s another weight on the shoulders of the man born Stanley Cox Jr.

"Lots of people are putting their hopes into the album," he acknowledges. "They’re, like, ‘I hope FAB do it, because it’ll kick in the door for all of us.’ I realized when I was creating this album it’s not just something I want to do. It’s something my whole region depends on."

Da Yellow Bus Rydah‘s journey has been anything but smooth, however. Bottom line: Atlantic has postponed the album’s tentatively scheduled spring release, due to controversy surrounding the Ghostbusters-themed advance single, "Ghost Ride It." A tribute to the hood-invented practice of throwing your car in neutral as you walk alongside and steer, "Ghost Ride It" was generating a buzz through its a video on YouTube and the minor-league MTVs when a Dec. 29, 2006, Associated Press story ("Hip-Hop Car Stunt Leaves 2 Dead") linked the song with a pair of unrelated deaths: Davender Gulley, 18, of Stockton, who "died after his head slammed into a parked car while he was hanging out the window of an SUV," and an unnamed "36-year-old man dancing on top of a moving car [who] fell off, hit his head and died in what authorities said was Canada’s first ghost riding fatality." While the scant details obscure whether these incidents stemmed from ghost riding or more traditional automotive horseplay, Fox News’s Hannity and Colmes found the trend alarming enough to call FAB on the carpet in January.

"You understand that a lot of kids look up to you?" Sean Hannity accused rather than asked FAB. "They sing your songs. They dress like you. They talk like you — they wanna be you!" Aside from displaying an oversimplified sense of the relationship between artist and audience, Hannity’s remark reveals a comic lack of familiarity with hip-hop and their guest in particular: what part of "Super Sic Wit It" do you sing? Moreover, while rap fans undoubtedly draw from the same well of slang, the idea that they all talk the same — or even like FAB, for that matter — is a stereotype.

"I don’t think they expected me to be so articulate," FAB recalls with a laugh. Yet among MCs, FAB is singular interview subject. While he has a clear sense of his talent and importance, he’s more apt to discuss his personal relationship with God or how his lonely childhood as a latchkey kid inspired him to create rather than brag about how real he is. His power to articulate the struggle of urban youth — to explain the rage that motivates, say, ghost riding — is the very reason he’s often labeled the spokesperson for a hyphy movement otherwise devoted to "going dumb."

Hannity treated FAB like he’s dumb, but FAB turned the tables. Hannity’s denunciation of his effect on the "kids" prompted the rapper to question whether his influence rightly extends to a Canadian 11 years his senior, which Hannity countered by accusing FAB of wanting as much "money and controversy" as he can get. When FAB speculated on the influence of turning on the TV and seeing 3,000 soldiers die in Iraq, Alan Colmes was sent in as a balm, ending the segment.

"Both those people were adults," FAB says later of the ghost-riding deaths. "I feel bad for the families, but at the end of the day, an adult has to take responsibility for his actions."

GHOSTBUSTED


The next pothole for Yellow Bus was a late March cease and desist letter from Columbia Pictures for copyright infringement in the "Ghost Ride It" video — just as it was about to debut on MTV’s 106 and Park. "We had permission [to use the Ghostbusters van] from the man who built it and owns it," FAB explains. "But Columbia owns the logo." The video was immediately pulled from all media outlets, impairing Atlantic’s ability to market the single nationally. As a result, the Yellow Bus has been parked. The official explanation, from Atlantic VP Mike Carin, is that the label is focusing on FAB’s "artistic development." Despite the inevitable rumor that the rapper was dropped, Carin confirms that "the deal is still in place."

Still, such delays have silenced many MCs’ buzz: witness how the delay of Raekwon’s album on Aftermath has converted excitement into skepticism, or how the Team’s World Premiere (Moedoe/Koch, 2006) dropped too long after its singles had peaked, leading to lower-than-expected sales. Fortunately, the structure of FAB’s distribution deal allows him an unusual degree of freedom.

"They were willing to sacrifice certain things," he says of his initial decision to sign with Atlantic among competing offers. "They allowed me to do what I want to do — if I want to drop an independent album, I can."

ENTER DA BAYDESTRIAN


This flexibility has allowed the prolific FAB to immediately walk out another new album, Da Baydestrian, on May 15, through SMC/Fontana. Although, according to SMC cofounder Will Bronson, Atlantic has options to include as many as five of its songs on Yellow Bus, Baydestrian is an otherwise distinct project intended to satisfy the demand for a follow-up to Son of a Pimp. FAB’s also preparing a series of summer releases, including a second installment of the all-freestyle Tonite Show with DJ Fresh. (Fresh, incidentally, edited FAB’s 2005 DVD, The Freestyle King, now packaged with Baydestrian as a bonus.) With Beeda Weeda and J-Stalin, representing the East and West respectively, FAB’s formed the multihood group N.E.W. Oakland, whose mixtape is nearing completion. Prince of Da Bay (In Yo Face/Hooker Boy Filmz), a documentary on FAB by local hip-hop director Dame Hooker, should be out by press time, while FAB’s next DVD, Shoobalaboobie TV, is in the works.

"You do what you have to do to keep the buzz going," FAB says. "Also sales — on the independent level, your numbers are what’s important [to major labels]." Da Baydestrian thus has Atlantic’s blessing, but its commercial success will determine the fate of his deal.

Yet the need to appeal to the marketplace hasn’t inhibited FAB’s creativity, and Da Baydestrian refuses to play it safe. Rather than exploit the hyphy sound he helped establish, FAB only sprinkles it in, most obviously on the remix of the Traxamillion-produced "Sideshow" and the opening title track, one of six bangers produced by FAB protégé Rob-E. The young Martinez-born producer proves his versatility on tracks like the triumphant "Get This Together" and the melancholy "Life on Track," featuring Faeva Afta vocalist J-Nash, whose Hyphy Love drops in August. Another four productions by Son of a Pimp collaborator Genessee contribute to Baydestrian‘s in-house feel even as the family breaks new ground: "Can’t Wait," say, evokes Andre 3000’s explorations of go-go, filtered through FAB’s hyphy sensibility, while "Shorty Tryin’ 2 Get By" is a contemporary "Keep Ya Head Up" spiced with Bay Area R&B. The album is refreshingly free of skits, and guest stars are kept to a minimum, but Too $hort blesses the disc three times, an unambiguous stamp of approval from Bay rap’s founder.

What makes Da Baydestrian one of the most extraordinary albums since hyphy’s inception, however, is its social consciousness. "Deepest Thoughts," for example, hits out at President George W. Bush, but even more pointedly at Gov. Arnold Schwarzenegger for expanding the prison system instead of aiding the poor. The Sean T–produced "Crack Baby Anthem" addresses teen dope dealers, seeking to uplift without castigating or glorifying their activities — for the nonghetto audience, the song connects the dots between poverty, crime, and the present political climate. FAB describes his approach as "hip-hyphy," presenting an alternative to hip-hop fans who consider hyphy juvenile or incomprehensible. Granted, the disc’s school bus and helmet imagery — referring to the hyphy concept of acting "retarded" — is hardly p.c. Nonetheless, FAB’s lunchbox-wielding Baydestrian is a welcome change from the exaltation of guns and dope adorning your average rap album.

"In no way am I trying to say I’m like Martin Luther King or Malcolm X," FAB explains. "But I realized I could create nonsense and seem to support ignorance, or I can get people to start looking at the reality of it, and the reality of it is that young blacks are dying, not only in the Bay; they’re dying everywhere. We’ve been raised in a warlike civilization. We’ve been brainwashed to accept war as the proper thing to do when things don’t go right."

"Tupac [Shakur] said it himself," FAB concludes. "He said, ‘I’m not going to be the one to change the world. But I guarantee I’ll plant a seed in the mind of someone who does.’ We’re all the Tupac generation. Pac was hyphy."

While I don’t think it’s my place to declare FAB the next Tupac, I can’t fail to be struck by his invocation of the Bay Area icon. On a superficial level, of course, with all his non-thugged-out, cartoonish imagery, FAB is nothing like Pac, just as the hyphy movement differs from the Bay’s mid-’90s sound. Yet locally, if not nationally, the two rappers occupy the same position on the map of hip-hop: like Pac, FAB has cred with nearly everyone, he has a positive message within an utterly street aesthetic, and he makes tunes everyone wants to hear. No rapper has embodied all three attributes since Pac, and that combination makes FAB extraordinary. *

Beyond the Reilly settlement

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> gwschulz@sfbg.com

Click here to read the Guardian editorial on the Reilly victory

Shortly before Clint Reilly began a press conference April 25 announcing that he’d settled his federal antitrust suit against the Bay Area’s two largest newspaper companies, Cheryl Hurd of NBC affiliate KNTV, channel 11, loudly complained to the pack of reporters that she just didn’t quite get the story.

"Why does anybody care about this?" she asked, sounding annoyed as she waved the press release listing the terms of the settlement in the air. "I don’t even understand any of this. What’s this mean?"

She wasn’t the only confused reporter. In the week since the settlement was announced, the local media have downplayed or mangled what is actually a huge story: Reilly, acting on his own, with no support from federal or state regulators, managed to scuttle a deal that would have ended all newspaper competition in the Bay Area.

"Would I have liked to see it go further? Yeah," said Bruce Cain, director of UC Berkeley’s Institute of Governmental Studies, who penned a declaration supporting Reilly’s case. "But at least he was able to stop more collaboration between those two companies, and he was able to establish the legal point that this has more than just economic consequences. It has consequences for the vitality of political news coverage in the Bay Area."

The settlement involved a lot of peripheral terms, but the essence was this: the Hearst Corp., which owns the San Francisco Chronicle, can no longer consider combining printing, distribution, and ad sales with MediaNews Group, which owns almost every other major local daily in the Bay Area.

Reilly announced that the deal prevents the supposed competitors from unfairly or illegally negotiating any major joint operating arrangement in the near future. The trial was scheduled to begin just days after the agreement was reached.

"Newspapers are the intellectual bridge between citizens and their government," Reilly told reporters. "To me, one Bay Area newspaper company owning every paid circulation daily newspaper would be a very bad thing for Bay Area newspaper readers and for public discourse."

The deal nixes a plan outlined in a letter unearthed during an early phase of the trial. The letter showed that Hearst and MediaNews wanted to consolidate distribution and advertising operations among their local papers to create additional revenue and save on expenses.

Hearst enabled MediaNews to complete the purchase of several major local dailies last year by investing $300 million in the company’s stock. To survive antitrust scrutiny, the deal was crafted to make the stock’s value hinge entirely on non-Bay Area assets. But documents revealed during the suit clearly show that Hearst had planned to convert the stock so that it included MediaNews papers here as well. The settlement also prevents that from happening.

According to the terms, Reilly will recommend private citizens for appointment to the editorial boards of every California Newspapers Partnership publication in the region, including the San Jose Mercury News, the Contra Costa Times, and the Oakland Tribune.

He will also get access to advertising space in the pages of the papers for a regular column.

Reilly had originally sought to force MediaNews to divest itself of the San Jose Mercury News and other papers, but that was a long shot at best. What’s remarkable is that he accomplished as much as he did when no government agency was willing to help.

"I see in a lot of places what’s happening is owners are trying to make as much money as possible," Cain told us. "I see this in local TV, I see this in print media. I’m sure there’s an element of survival sometimes, but I think a lot of it is just trying to get profit margins up."

The US Justice Department never made a serious effort to stop the deal. The Guardian recently confirmed that the state Attorney General’s Office under the newly elected Jerry Brown has dropped its probe into the transactions. Spokesperson David Kravets refused to explain why.

The state’s treasurer and former AG, Bill Lockyer, began the investigation, and when we asked for a comment on Brown’s decision, he declined, saying he had "moved on."

Gina Talamona, spokesperson for the federal Justice Department, said its examination of Hearst’s substantial investment in MediaNews continues. But MediaNews CEO Dean Singleton told us that he expects it will not only close soon but will also clear the companies to move ahead.

Singleton said his meetings with Reilly, a Bay Area native and former mayoral candidate, were civil and there were no terms of the settlement he was displeased with. But he still doesn’t believe Reilly had grounds to bring the suit.

"A lot of wild statements have been thrown out that are simply not true," Singleton said. "There’s no evidence whatsoever that we had any discussions with Hearst about doing anything with the Chronicle that would have been improper. In fact, we’ve had few discussions about anything with the Chronicle."

Perhaps there was nothing "improper" as far as justice officials were concerned. But a March 2006 letter from Hearst vice president James Asher to MediaNews president Joseph Lodovic that surfaced during the case shows Hearst required an agreement on consolidated distribution networks with MediaNews before the company would proceed with its side of the transaction.

So let’s go back to Hurd’s question: why should anyone care about newspaper mergers in an era when there are so many other sources of information?

John McManus is a part-time journalism professor at San Jose State University and director of GradeTheNews.org, a consumer Web site on Bay Area news quality. He was hired as a consultant by Clint Reilly’s legal team to provide analysis of how consolidated or noncompetitive media outlets might fail to provide the best, most valuable news stories possible to local consumers.

His answer is simple. "Everyone is affected by the quality of newspapers because they form the bottom of the food chain for news," McManus told us. "Probably about 85 percent of the original news reporting in the Bay Area comes from newspapers, because they have much larger staffs than television stations or radio stations or Web-only operations."

McManus did his Stanford PhD dissertation in 1987 on four television news stations scattered around California, spending a month at each of them. At one of the stations, he said, what appeared in the local newspaper was so important, a station producer would clip stories directly from it and attach them to the assignments reporters were expected to have prepared by that evening’s newscast.

"The situation has gotten worse since then," McManus told us, "because local TV news staffs have shrunk."

The settlement also did not include an agreement on what would happen to the mountain of records produced in the case leading up to the trial.

Hundreds of pages previously sealed by the newspaper companies were opened to the public after the Guardian and the East Bay nonprofit Media Alliance intervened in the case. Reilly’s lawyer, Joe Alioto, recently insisted that he would petition the judge to unveil more documents, such as full depositions of company executives and additional memos and e-mails.

The settlement comes with some caveats for critics of consolidation. McManus believes that Reilly ultimately "got a quarter of the loaf." Reilly, he said, may have protected the independence of the Chronicle, but MediaNews isn’t being forced to unload any of its Bay Area properties to balance the field.

"Without [Reilly] having liberated the Mercury News and the Contra Costa Times and the smaller papers from the grip of MediaNews," McManus said, "the Chronicle‘s fate may be sealed." *

Editors note: The daily papers in the Bay Area treated the news of the settlement as a one-day story, and not a terribly big one. The San Francisco Chronicle ran it below the fold in the business section with a one-column head. But over the next few days, there were a lot of development and arguments over the deal; the trade journal Editor and Publisher was all over it. But none of that made it into the supposedly competitive local daily press.

A lot of the back and forth appeared on chainlinks.org, a Web site run by the Newspaper Guild. A selection:

Hearst-MediaNews deal scuttled: Former Chronicle City Editor Alan Mutter on the Reilly settlement

Editor and Publisher on the disagreement over the settlement

Jerry Ceppos, former executive editor of the San Jose Mercury News, whines about the deal

Romanseko links to some of the first-day stories

Reilly’s victory

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EDITORIAL In the days following the historic settlement of Clint Reilly’s lawsuit against the Bay Area’s newspaper barons, the local dailies, the media blogs, and the trade publications such as Editor and Publisher were buzzing with debate and speculation over a few of the agreement’s terms.

Would Reilly actually get space in the local papers to make his political points every month? Where would that space go? Would it be paid ad space, or would he get it free? Would he be able to appoint a citizen member to the editorial boards of Dean Singleton’s dailies (including the San Jose Mercury News and the Contra Costa Times)? Or could the papers’ managers reject his nominations?

Back and forth, back and forth. And all of it entirely missed the point.

This was the fine print of the deal, the stuff that, a few months from now, nobody will remember or care about. You could get the real news from the headline in a blog post by former Chronicle city editor Alan Mutter: "Hearst-MediaNews deal scuttled."

That’s what happened here: Reilly, acting with his own money, with no support from the federal or state regulators, broke up a deal that would have put the owners of the Chronicle directly in business with Singleton’s MediaNews Group, the owner of almost every other major daily in the region. It would have been the end of daily newspaper competition in the Bay Area.

The Hearst Corp., documents that came out during the suit showed, wanted to combine some printing, distribution, and sales efforts with MediaNews Group. And Hearst wanted to convert an investment in MediaNews into direct stock in the company’s local papers. That would have, in effect, made one of the last non-MediaNews papers in the area part of the same business group.

As G.W. Schulz reports in "Beyond the Reilly Settlement," on page 11, if Reilly hadn’t intervened, nobody would have known about it until it was over and too late to stop. That’s the point here, and that’s what journalists, political scientists, and critics ought to be talking about.

Instead, we’ve heard outrage from some editors over the fact that Reilly might get some space in the papers. It’s really a nonissue; he could have bought ad space for his opinions anyway, and all that the settlement did was give him that space free. And a lot of papers ask citizens to serve on advisory boards; Reilly’s nominees are very unlikely to change anyone’s editorial policies.

Meanwhile, where is the outrage over the original Hearst-MediaNews deal, which would have ended editorial competition the same way the 1965 joint operating agreement between the Chronicle and San Francisco Examiner did? Where is the outrage, for that matter, over the fact that the Chronicle is now putting ads not from Clint Reilly but from Pacific Gas and Electric Co. – greenwashing ads that are demonstrable lies – on the front page of the paper, without even a tagline that says "paid advertisement"? Where is the outrage over the fact that Democrats Bill Lockyer (the former attorney general) and Jerry Brown (who now holds the job) were ready to stand back and let all this happen?

And where is the concern among all these civic-minded types about the fact that despite Reilly’s best efforts, it’s entirely possible Hearst will wind up trying to sell the Chron to Singleton anyway – and none of the federal or state authorities seem to care?

Remember, if Reilly hadn’t sued, one of the most dangerous, rotten tricks in newspaper history might have gone unchallenged.

As it is, the full information only came to light because the Guardian and Media Alliance went into court to force it open – and now Reilly and his attorney, Joe Alioto, have the right under the settlement to seek federal Judge Susan Illston’s permission to make the remainder of the key records – including the settlement agreement – public. They should do so, immediately, and Illston should grant their request. The public interest in the newspaper barons’ schemes couldn’t possibly be greater. *

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