Ken Midkiff of the Sierra Club has a razor tongue when it’s called for and the gift of persistence. He has been applying both to an official at EPA 7 and to a couple of bumbling bureaucrats in the Missouri Department of Natural Resources over their failure to enforce penalties on local officials who have scarred and maimed two of our beautiful Ozark waterways.

This is how Dixon’s Crossing on the headwaters of the Jacks Fork used to look, before Peirce Township, ignoring the permit requirements, brought in a road grader.

And ruined it.

That was in 2004. Once environmentalists noticed the carnage, they contacted EPA7 and eventually a $14,000 fine was levied. Peirce Township had until the end of September of this year, that’s five years, to spend $14 thou mitigating the damage. So all through October, Midkiff has been dashing off e-mails to Howard Bunch at EPA7, asking whether the fines are being enforced and getting wishy washy references to “working with” Peirce Township. He began to suspect the worst:

Did EPA7 grant an extension to Peirce Township?  This is a YES or NO question.

If so, what is the length of the extension?     How many weeks, months, years, decades, millennia?

These questions are not difficult to answer.

Please respond.

He finally faced the maddening truth, that no penalty would be forthcoming and he pointed out that Peirce County Supervisors knew when they broke the law that a permit was required.

I just learned that Peirce Township of Texas County was under a “cease and desist” order for a similar sand-and-gravel operation on a tributary of the Jacks Fork (Pine Creek?) AND the supervisors had attended a class on sand-and-gravel mining at which obtaining a permit was discussed.

They were not, in fact, ignorant of the federal requirement for obtaining a 404 CWA permit.  To the contrary, they were well aware, but flouted the law anyhow.   Just downstream of the illegal work on the Jacks Fork River is the boundary of the Ozark National Scenic Riverway.    If this type of illegal activity is allowed to impact a nationally-protected river, then there is little hope for protection of anything else.

To reiterate:  The Settlement Agreement term expired as of the end of September, for illegal activities in the summer of 2004.  The Peirce Township Board of Supervisors knowingly broke federal law and the lawbreakers had 5 years to make amends, but you have graciously decided not to enforce the law, instead granting an extension.  MDC folks looked for mitigation projects, but found none – so I can only conclude that Peirce Township will submit some “make work” mitigation proposals.

Finally, Linda Garrett of the Texas County Commission informed Tony Orchard of the Shannon County Commission that Shannon County could conduct sand-and-gravel mining on Big Creek (a major tributary of the Current River) without obtaining any federal permit, because all that could be expected would be a slap on the wrist.  Fines, penalties?  Forget about it!

Think about  it. Linda Garrett of Texas County–Peirce Township’s county–advised Shannon County Commissioners not to worry about ignoring permit requirements. She should know. And the Shannon County officials took her advice. On a section of beautiful Big Creek, a tributary of the Current River, they wreaked similar havoc this last year to what Peirce Township did at Dixon’s Crossing in 2004.

Apparently, the Commissioners decided to wave a dismissive hand at those interfering city folk, because, without permission of any kind, they channelized (straightened) about a thousand yards of the creek, built “wing-dams”  to make sure the meandering stream flowed faster, and piled gravel twenty feet high on each side of the creek.

Presumably, the reason they did this was to stop the flooding of a nearby road, which they then rebuilt. Unfortunately, they chose to ignore the fact that the road was on private property owned by the L.A.D. Foundation and that the foundation did not want that road rebuilt. Indeed, the foundation’s board had offered the County an easement to build another road on higher ground. It was a sensible offer, especially considering that federal funds are available for building roads in that area, so doing so would not have cost the county anything–would have provided some jobs, in fact.

Furthermore, Ken Midkiff of the Sierra Club tells me that hydrologists and engineers have informed him that the changes to Big Creek not only won’t stop the flooding in the spot, they are likely to increase it.

And that same Tony Orchard who got advice from the helpful lady in Texas County? He had the gall to flip environmentalists the bird:

Tony Orchard, the presiding commissioner, told the Post-Dispatch that “Some people are just going to get carried away if you move a piece of grass the wrong way.” It’s beyond him to imagine why anyone would care what they did to Big Creek. It’s also beyond the trio of dunces, or so Commissioner Dale Counts claims, to understand all that bureaucratic red tape for permits to breathe and certification before you can cross the road. He didn’t know about all those hoops the commission was supposed to jump through, all right?

For all the good it is doing, Midkiff is complaining bitterly to Tim Duggan and Jack McManus at the MDNR:

I was distressed to hear that you are “working with” lawbreakers.   The Shannon County commissioners knew full well that they were required to obtain a federal 404 permit and that DNR must issue a 401 Certification.  Shannon County Commission knowingly – perhaps willfully – violated the law.

A representative of the US Army Corps of Engineers (responsible for issuing 404 permits) told me they would never have granted permission for the blatant travesty that occurred.

And, yet, you work with those who perpetrated the mess and violated state and federal law in doing so.

Midkiff is disgusted with Duggan and McManus, as well as with AG Chris Koster, for letting Shannon County off the hook. Not to mention Howard Bunch at EPA7. He’s concluded that sometimes “the agencies and individuals that are to protect our natural resources are asleep at the wheel.” And they refuse to wake up even when he jabs them in the ribs.

When Ken Midkiff of the Sierra Club learned that the Shannon County Commissioners’ had scarred Big Creek, he immediately filed formal complaints with the Army Corps of Engineers, the EPA Region 7, the Missouri Department of Natural Resources, and God Almighty. Ken gets peeved when elected officials flout the law, deface Mother Nature, and then get all smug about it.

The Corps of Engineers indicates that it plans to act on Midkiff’s request that Shannon County be fined and required to restore the section of Big Creek that it disfigured. Good.

But then the story took an interesting twist: Midkiff (shown at left fishing Tavern Creek) got word from an attorney at the National Park Service that Representative Jo Ann Emerson had been laying down covering fire at the Park Service before the Shannon County Commissioners’ assault on Big Creek–giving the lie to all that “who knew we needed permits?” nonsense they’d been spouting.

Immediately, Ken filed a Sunshine Act request with the Shannon County Commission. Since he knew Emerson had made phone calls to the National Park Service, his request carefully defined “communication” as ” any and all formats – for example: electronic, telephone logs, letters.”  

Noting in his request that the law requires them to respond within three working days, Midkiff asked for:

1.  Any and all copies of communication* to or from US Representative Joann Emerson during the period January 1, 2004 to present;

2. Any and all copies of communication* to or from the National Park Service, Ozark National Scenic Riverways during the period January 1, 2007 to present;

3. Any and all copies of communication* to or from the Missouri Department of Natural Resources, Division of State Parks during the period January 1, 2007 to present ;

4. Any and all copies of communication* to or from the Missouri Department of Conservation during the period January 1, 2007 to present;

5. Any and all copies of communication* to or from the United States Forest Service during the period January 1, 2007 to present;

6. Any and all copies of communication* to or from the L-A-D Foundation during the period January 1, 2007 to present; and,

7. Any and all copies of communication* to or from the Missouri Department of Natural Resources during the period January 1, 2004 to present.

That was February 4th.

There’s been naught but silence from the Commission.

Once it became obvious that the commissioners intended to smirk at the law–again–Midkiff contacted the Attorney General’s office. That was almost as frustrating as dealing with Shannon County. Every time he called, he was told to leave his name and phone number and someone would get back to him. When some dweeboid gave him the same song and dance on the fifth phone call, Ken said, “Forget it, my next move will be to contact the press.” And he e-mailed me.

That threat did get a little bit of action. It got him a phone call from Jane Gummels (he wasn’t sure of the spelling). She informed him that the Sunshine Division of the AGO has no lawyers. They what? That’s right. NO lawyers.

The subject line of Ken’s e-mail to me about his … dare we call it “communication”?… with the AGO was, “Now they tell me.”

So, why don’t they have any lawyers, he wanted to know. Well, it seems that all the attorneys from that division left with Nixon, and Koster hasn’t replaced any of them. Not one. Not yet. Here’s Ken’s take on it:

This is very frustrating.  Many people depend upon the AGO to make sure that our government is open, accessible, and transparent.  BUT, the very entity mandated with that responsibility is not doing it.   As far as openness is concerned, we may as well be living in a dictatorship.

Jane Whoever also told me (and I already knew this) that they needed to fill 75 vacancies.  Wasn’t there a Transition Period in which filling positions was supposed to have occurred?   This is Feb. 20, Koster took office on Jan. 12 – apparently enforcing the law is a low priority for him.

Am I frustrated?  Damned right.

As of today, Ken has heard from Daryl Hilton, who identifies himself as “Assistant Attorney General.”

[Hilton] stated that he contacted the Shannon County Clerk and she assured him that the records will be provided.  HOWEVER, she didn’t say when nor did she give any explanation of why I have been stonewalled to this date.  Besides which, I sent the letter to the Commission, not to the County Clerk.

Midkiff’s attempts to get some truth are limping along, and his take on it is that there ain’t no sunshine in Shannon County or the AG’s office.

Photo courtesy of sierrasportsmen’s photos on Flickr

Molly Ivins once wrote of a local politician that “if his IQ slips any lower, we’ll have to water him twice a day.” Apparently Texas had at least one elected official as thick-witted as Missouri’s Shannon County Commissioners. I don’t know whether the victim of Molly’s prose was arrogant into the bargain, but trust me that the three commissioners are.

They’ve wreaked havoc on a section of beautiful Big Creek, a tributary of the Current River. Both streams are part of the Ozark National Scenic Riverways and thus protected by the National Park Service. Any in-stream activity requires a permit from the federal government and a water quality certification from the Missouri Department of Natural Resources. Apparently, the Commissioners decided to wave a dismissive hand at those interfering city folk, because, without permission of any kind, they channelized (straightened) about a thousand yards of the creek, built “wing-dams”  to make sure the meandering stream flowed faster, and piled gravel twenty feet high on each side of the creek.

Generally, I oppose the death penalty, but in this case ….

Presumably, the reason they did this was to stop the flooding of a nearby road, which they then rebuilt. Unfortunately, they chose to ignore the fact that the road was on private property owned by the L.A.D. Foundation and that the foundation did not want that road rebuilt. Indeed, the foundation’s board had offered the County an easement to build another road on higher ground. It was a sensible offer, especially considering that federal funds are available for building roads in that area, so doing so would not have cost the county anything–would have provided some jobs, in fact.

Furthermore, Ken Midkiff of the Sierra Club tells me that hydrologists and engineers have informed him that the changes to Big Creek not only won’t stop the flooding in the spot, they are likely to increase it.

So. Let’s tally up the stupidity. The Commissioners broke federal law in order to damage a beautiful waterway. After they defiled that, they built a road on private property without permission when they already had an offer to build a flood-free road at no expense to themselves. The road they rebuilt will flood again, probably sooner than it would have if they’d left the lovely creek undamaged.

As for the arrogance of the Commissioners, how’s this? Tony Orchard, the presiding commissioner, told the Post-Dispatch that “Some people are just going to get carried away if you move a piece of grass the wrong way.” It’s beyond him to imagine why anyone would care what they did to Big Creek. It’s also beyond the trio of dunces, or so Commissioner Dale Counts claims, to understand all that bureaucratic red tape for permits to breathe and certification before you can cross the road. He didn’t know about all those hoops the commission was supposed to jump through, all right?

Really? Commissioners who don’t need to be watered twice a day would know that. Ken Midkiff observed:

[I]f you get pulled over by a state trooper for tooling along at 90 mph on one of our state highways or interstates, it is highly unlikely that claiming, “Gee, I didn’t know there was a speed limit” will get you off the hook. You were speeding; ignorance of the law is no excuse, and you’d be issued a ticket.

But the pretense of ignorance evaporates anyway in light of the fact that the Commissioners had their Congresswoman, Jo Ann Emerson, calling the Parks Service–before it moved a blade of grass–telling the Service not to bother them about it after they did. Midkiff says a Park Service attorney told him that Emerson had called the D.C. office to communicate that message.

Midkiff has been pursuing that story through Freedom of Information requests. It’s a good thing he’s persisting, because the paper of record in Shannon County is the Current Wave in Eminence–which hasn’t printed so much as a peep on this story. Check here for the next installment in this unfolding story, the one where you find out how Midkiff has been stonewalled so far by Shannon County and the AG’s office.