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"COMMISSIONER REPORT"
JOSEPHINE COUNTY, OREGON
DECEMBER 2007

 


By Commissioner, Jim Raffenburg

December 26, 2007

NewsWithViews.com

Introduction

Hello again everyone. Last month I told you to expect a "Facts" Section this month that would include both October and November's Board of Commissioners actions and decisions.

I must apologize for not being able to provide that information. I write these "Reports" at home, on my own time. When I sat down on December 22 to write this months "Report," I realized I did not have all the necessary information for either month.

The Board of Commissioners Office has been in a bit of disarray of late. Our staff has been subjected to significant stress in recent weeks, above and beyond the "normal," daily stress. There are two major reasons for this situation.

The County's Chief Operating Officer resigned as of December 6th, and your Board of Commissioners have been involved in an internal disagreement over how we should respond to that resignation. I detailed this brewing problem in last months Commentary. The COO disagreement eventually spilled over into how the Boards Office and staff will operate in the future, leading to frayed nerves and confusion.

As of this moment, I'm not sure if I'll even be able to continue to offer the detailed update information to all of you in the future due to some of the changes being implemented by the Board majority.

As a result, my Commentary this month will actually cover two issues instead of one. The first issue will offer more information on what is happening in the Boards Office and how it is likely to affect you in the future and the second issue will deal with a very important United States Supreme Court decision last June that holds out hope for the future of federal timber revenues for Josephine County.

However, the new audio record of the regular meetings of the Board of Commissioners are now available on line at: www.co.josephine.or.us

You'll be able to hear what is actually said and decided in these meetings, as long as the Board majority allows it to continue. I hope you take the time to listen. It may not be "high theater" but it is your future being discussed, so I think it's worth some of your time. Give it try at least once and let me know what you think.

Commentary

The Commissioner's Office

Last month I told you about the two options being discussed regarding how Josephine County could respond to the resignation of our COO. My idea would have saved up to $150,000 per year by utilizing the current Commissioner Liaison system to temporarily replace the COO position until the County's financial situation becomes clearer. It was rejected by the Board majority.

Here is what Commissioners Toler and Ellis have decided to do instead:

1) The County will now have a Chief Administrative Officer instead of a Chief Operating Officer. In the case of this position, that one word change in the title carries long term implications for all of us.
Salary negotiations will start at $85,000 per year, plus benefits and will cap-out at whatever salary the Board majority decides to offer.
This decision is also already taking on the very characteristics I warned about last month. The CAO position is clearly being created to pave the way for a County Manager form of Government, which Commissioners Toler and Ellis are "On Record" as being committed to, without apparent concern for the will of the people, as expressed in the 2002 election when that very idea was defeated at the ballot box, by a 2-to-1 margin.

2) The Chief Financial Officer will now report to the CAO instead of to the Board of Commissioners.
See last months Commentary for why I think this is such a bad idea.

3) The staff of the Board of Commissioners will no longer report to the Board. They will now report to the CAO.
This is new. This represents a shift of new duties to the CAO position that have never been delegated before. I believe this decision further violates the County Charter.

4) The Board majority is also considering hiring an interim CAO until an permanent person is found.
This would cause extra expense and will likely create more confusion than it will resolve.

5) The Board majority has reversed a very important spending restraint implemented in 2005. On Friday, December 21st, the Board majority gave $25,000 signing authority (per contract) to all management employees, on their signature alone, to obligate the County to any purchase contract. There is no limit on the number of contracts they can sign. Some thirty plus employees can now sign where only two had that Board delegated authority before. The Board will now only be briefed on what contracts are signed once per month, by the CFO, after the fact.
In 2005, after the spending restraint had been implemented, only Elected Officials and four Department heads could sign for those amounts. In 2006, prior to Commissioner Toler's term began, the Board tightened that restriction to just two non-elected positions, the COO and the CFO.

These are very troubling events, from any fiscally conservative point of view. At a time when Josephine County government faces what could amount to practical insolvency next year, the Board majority has decided to liberalize the county's spending habits and eliminate the very controls we had enacted a few years earlier that have helped us save five million dollars in just two years.

These decisions, taken one at a time, are bad enough, but taken as a collective package, they are a prelude to disaster. For all practical matters, the Board majority has abandoned the very concept of fiscal restraint.

I have used the term "Board majority" several times in the paragraphs above, so let me explain exactly what I mean by that term.

Commissioner Toler brought a unique approach to county government that is not concerned with building consensus or the consent of the entire Board on important decisions. As I've already told you, he is "On Record" as saying he is not concerned with what the vast majority of voters want. He said, after last years May Levy ballot defeat, that all he needed was fifty percent, plus one vote, to get what he wants.

Accordingly, there is no longer any effort in Board meetings to find some type of common ground on which each Commissioner has some part of what they believe is an important point being included in final decisions. Riddle, Ellis and I did not always agree, but the decisions where one of us was frozen out entirely were a rare exception. On this Board, with Toler replacing Riddle, it has become the rule. When it comes to spending decisions, I seem to be in constant dissent with the final vote to spend more.

Commissioner Toler takes exception to my use of the term "Board majority", saying there is no such thing, only the "Board". It would appear the only reason he could object to my separating myself from the poor fiscal decisions he and Commissioner Ellis are making is that he hopes all of you to think all three of your Commissioners have gone along with those poor decisions. I want to make sure everyone in Josephine County know who actually made these terrible fiscal decisions, and who opposed them.

Here's why I'm so worried about this resurgence of uncontrolled County spending:

1) Congress adjourned for the Christmas recess without reauthorizing the Safety-Net funding. According to Congressman Peter DeFazio and Senator Ron Wyden, the subject of Safety-Net funding will not be seriously discussed again until March or April 2008.

2) There will be only one more emergency spending bill next Spring where a one year extension of our funding might be added. Other options for a four year extension will be few and far between because there are not enough "offsets" in other Federal spending to pay for the full cost of the currently proposed versions of the Safety-Net extension.

3) The President considers this spending to be discretionary to the Federal budget and has vowed to veto any spending that requires new money. Our funding is considered "pork" to those who do not understand the failed obligation of the federal government to harvest timber and share the revenues from those harvest with county governments.

4) Accordingly, prospects for continued Safety-Net revenue this year look even worse then last year.

5) It appears right now that both Commissioners Toler and Ellis will support putting two permanent Sheriff's Office Taxing Districts on the November 2008 ballot. The current dollar figure being kicked around is between $2.50 and $3.00 per thousand for affected property owners, but that number is subject to change in either direction. It is unclear if that dollar amount would include money for the District Attorney's Office or for Juvenile Shelter and Detention.

6) Commissioners Toler and Ellis have both indicated they will also be putting a permanent Taxing (Fire) District on the November, 2008 ballot. The last number I heard for this Tax Rate was over $3.00 per thousand dollars value on real property.

7) Even with all these new taxes, the County will be hard pressed to continue to operate the remaining Program services with current revenues and there will still be no money to reopen the Library System. If the Sheriff's Taxing Districts don't include funding for the District Attorney's Office or Juvenile Shelter and Detention, then new money will be needed for those services also.

Given recent current decisions by my fellow commissioners, I would not be surprised to see "other revenue" measures (new tax proposals) placed before the voters on an ongoing, ever increasing manner in the years ahead.

The Recent U.S. Supreme Court Decision

In December I attended the Annual Meeting of all the Commissioners from the 18 O&C Counties of Oregon, held in Eugene. There I was re-elected to the Board of Directors of the Association of O&C Counties by vote of my fellow statewide Commissioners.

While that was important to me and to Josephine County because it assures our strong representation in the Association, there was another, overwhelmingly important event that occurred at that meeting.

Kevin Davis, the Attorney for the Association of O&C Counties briefed everyone on a vitally important United States Supreme Court Decision that was handed down on June 25, 2007. Kevin explained that this decision had slipped under everyone's radar until recently. It represents a breathtakingly, refreshing change in direction for everyone in this country who believes in the rule of Law and the fair and accurate enforcement of those Laws.

The Case decided on June 25th was the:

National Association of Homebuilders v. Defenders of Wildlife

Using primarily Kevin's own words, here is a summary of the positive implications of this decision for the O&C Counties.

Background:

  • Clean Water Act requires Environmental Protection Agency (EPA) to transfer discharge permitting program authority to a State if that State satisfies nine criteria.
  • Arizona applied for said transfer and satisfied the nine criteria.
  • EPA consulted with Fish and Wildlife Service (FWS) under Section 7 (a)(2) of the Endangered Species Act (ESA), and FWS offered a "no Jeopardy" decision and the EPA prepared to grant the transfer.
  • Defenders of Wildlife sought review of the EPA decision to transfer permitting authority to Arizona.
  • Section 7 (a)(2) of the Endangered Species Act says, "Agencies shall consult with the USF&W and the NMFS to "insure" that agency actions will not jeopardize listed species, or adversely modify designated critical habitat."

Relevant Issue in this case:

  • Does the ESA "trump" prior, conflicting statutes?

Homebuilders is a major change in how the Law, under Section 7 (a)(2) of the Endangered Species Act, is applied. Quoted below, in part, is what the U.S. Supreme Court decisions says:

"Section 7 (a)(2)'s no-jeopardy duty covers only discretionary agency actions and does not attach to actions….that an agency is required by statute to undertake once certain specific triggering events have occurred. This reading is not only reasonable, inasmuch as it give effect to ESA's provision, but it also comports with the canon against implied repeals [of conflicting legislation] because it stays Section 7 (a)(2)'s mandate where it would override otherwise mandatory statutory duties."

In other words:

  • If an earlier statute tells an agency to do something, Section 7 (a)(2) does not modify that mandate.
  • An agency is only allowed to use its discretionary authority to avoid jeopardy.
  • EPA did not need to consult with FWS, because FWS had no authority to add conditions (R&P alternatives) designed to avoid jeopardy that might result.

The O&C Counties expectations have changed because the Law has changed:

  • Everyone assumed that ESA Section 7 (a)(2) "trumped" the O&C Act mandate to manage for sustained yield timber production.
  • The original assumption that BLM could create wildlife reserves, if necessary to avoid jeopardy, is no longer valid.
  • The ESA does not trump mandatory duties under the O&C Act.
    • The O&C Act says timberlands, "shall be managed…for permanent timber production, and the timber thereon shall be sold, cut and removed in conformity with the principle [sic] of sustained yield." 43 USC Section 1181a
    • If it is timberland, then it must be managed for sustainable yield.
  • The Ninth Circuit Court of Appeals ruled in Headwaters v BLM , 914.F.2d at 1183 that the BLM lacks the discretion to create wildlife reserves. This new decision confirms the Appeals Court decision which said in part:
    • "Exempting certain timber resources from harvesting to serve as wildlife habitat is inconsistent with the principle of sustained yield."
    • "Nowhere does the legislative history suggest that wildlife habitat conservation or conservation of old growth is a goal on par with timber production, or indeed that it is a goal of the O&C Act at all."
  • The Ninth Circuit Court of Appeals went on to clarify that the purposes of the O&C Act were twofold:
    • "First, the O&C Act was intended to provide the counties with a stream of revenue which had been promised but not delivered…because the lands in question were not managed so as to provide a significant revenue stream; the O&C Act sought to change this."
    • "Second, the O&C Act intended to halt the practice of clearcutting without reforestation, which was leading to depletion of forest resources."

Now what?

  • LSMA's in the BLM's Western Oregon Plan Revision Alternatives 1 and 2 would not be managed for sustained yield as required by the O&C Act.
    • Josephine County had already commented on the WOPR, informing BLM we believed these areas should be managed for sustained yield instead of being set aside as reserves.
    • LSMA's can no longer be justified as necessary to comply with Section 7 (a)(2 of the ESA. The same applies to LSR's under the NWFP.
    • The BLM must apply sustained yield management within the areas currently proposed for designation as LSMA's.
  • Whatever final management plan that is implemented for the O&C Lands, it must be in compliance with the mandates of the O&C Act of 1937, without exceeding the discretionary limits defined by the purposes of the that Act.

This changes everything.

The U.S. Supreme Court has ruled that the simple language of an existing law, including the O&C Act, are not and cannot be repealed by another law by "implied repeal."

To review the Courts decision, click here:

To review the power point presentation from Kevin Davis, attorney for the Association of O&C Counties contact me by email. My email address is: jraffenburg@co.josephine.or.us

The O&C Counties have always maintained the "O&C Act" trumped the limiting language of the "Endangered Species Act" (and several other environmental laws which have been used as excuses to halt timber harvests over the past twenty years). We are extremely grateful the United States Supreme Court has now ruled that indeed the O&C Acts mandatory language trumps the limiting language of the "Endangered Species Act."


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But this is not a time to sit back and believe we're finished, because we will never be finished. Rights must be defended constantly by those who cherish them.

The Environmentalist Industry will still sue to stop future harvests, but they have lost the legal basis to prevail and they can no longer claim the law is on their side.

Yet, a local Environmentalist Industry leader has been quoted recently in the news as saying they (the Environmentalist Industry) must still act to "protect us from ourselves."

Those who believe they have to "protect us from ourselves" are the worse type of elitists, who think their views of the "common good" and their need for control, trump our natural Rights and the clear language of our national, state and local Laws.

As I have said in the past, you cannot negotiate with people who will not negotiate in good faith. The Environmentalist Industry is entirely committed to the concept of no more harvesting of commercially viable timber from anywhere on federal lands.

That commitment has become their "meal ticket," their "gravy train" for donations from well meaning (and not-so well meaning) people and interests from around the world. They cannot afford to compromise their hard line commitment, because it would expose the underlying, basic unreasonableness of their entire Industry's arguments and seriously jeopardize their meal ticket.

My principles and position as your Commissioner requires me to be clear and open about how I see the events that are shaping the future of our County. That is why I have no choice but to speak out on these issues.

The current revenue crisis facing all of us can be dealt with one of two ways:
1) We can all support the return to reasonable use of our O&C timber lands, which would provide timber revenues instead of Safety-Nets money.
2) We can all vote to double or triple our tax burdens.

It really comes down to cutting timber or raising taxes.

Which ever way we go, I still believe we must further reduce the size, complexity and cost of County government. If the timber revenues return, that does not mean we have to spend it all like we did in the past. If taxes end up being the only alternative (to shutting down county government) then we owe it to ourselves to be sure we have no more government than we can all afford to paid for with local money. That will require significant changes in the shape and operations of the existing county government, and that will be painful, for everyone.

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One final word of caution. Don't be mislead by radical Environmentalist Industry propaganda that is already misleading people about a "return" to the days of unchecked clear-cutting of every tree in the Pacific Northwest. The Western Oregon Plan Revision, the new management plan of the BLM, would not create vast clear-cut areas. It would in fact protect vast areas from anything other than commercial thinning, to reduce fire dangers and promote good forest health.

Once again, thank you for taking the time to read this Report.

Jim Raffenburg

© 2007 Jim Raffenburg - All Rights Reserved

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Commissioner Jim Raffenburg is serving in his first term as Josephine County Commissioner (Oregon). He was elected in November, 2004. He is married and lives with his wife in the North Valley area. Jim served eight years as either Chair or Vice-Chair of the Josephine County Rural Planning Commission and served two years as a Josephine County reserve Deputy Sheriff. He is a trained, Court mediator. Previous work experience is in both the private and public sectors. He has worked in heavy, commercial construction and construction management most of his life, including serving as Construction Administrator for NASA.

E-Mail: jraffenburg@co.josephine.or.us

Web site:
www.co.josephine.or.us, then click on the County Commissioners, then Jim Raffenburg


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These decisions, taken one at a time, are bad enough, but taken as a collective package, they are a prelude to disaster. For all practical matters, the Board majority has abandoned the very concept of fiscal restraint.