Archives for January 2013

The Hill: Watchdog slams DNC, Sebelius in FEC complaint

Watchdog slams DNC, Sebelius in FEC complaint

By Elise Viebeck – 01/30/13 04:30 PM ET

A government watchdog group is claiming that the Democratic National Committee (DNC) failed to properly disclose its support for a 2011 trip in which Kathleen Sebelius violated the Hatch Act.
The DNC classified its payment to the Health and Human Services (HHS) Department, which Sebelius leads, as an “operating” rather than an “independent” expenditure, Cause of Action said.
The group filed a complaint with the Federal Election Commission (FEC) on Wednesday.

“What has come to light in our investigation is that the reimbursement for [Sebelius’s] campaigning wasn’t properly filed by the DNC,” said Cause of Action Executive Director Dan Epstein. “The FEC has an obligation to investigate and take appropriate measures to enforce their own rules.”

In September, federal investigators found Sebelius guilty of making “extemporaneous partisan remarks” during a speech at a Human Rights Campaign gala last February. The comments amounted to a violation of the Hatch Act, which bans some political activity by government employees, the Office of Special Counsel said.
The White House responded by saying that the U.S. Treasury was repaid and Sebelius “met with ethics experts to ensure this never happens again.”
The incident prompted criticism from Republicans, and Cause of Action slammed President Obama on Wednesday for giving Sebelius “a pass on the most high-profile Hatch Act violation in history.”
The group called on federal investigators to probe the actions of a Sebelius aide, A.J. Pearlman, for whom the DNC also reimbursed some expenses.

Washington Examiner: Complaint: Sebelius’ illegal campaign trip for Obama worse than we thought

Read the full story here. Washington Examiner

“Not only is it that the DNC is not being transparent about what it’s using its funds for reimbursement of, but it’s also violating the intent and letter of the Federal Elections Campaign Act,” Cause of Action’s Dan Epstein said in a phone interview with The Washington Examiner. “Whether it’s to cover up the Hatch Act violation or to just not properly report it, it’s very clear that it’s not properly reported — [for] the reason why, one would have to look into the minds of the lawyers at the DNC.”

Epstein floated the idea that the DNC reimbursed HHS (rather than the Treasury Department) and classified it as travel, rather than as a reimbursement for an independent expenditure in order to avoid the appearance that the Treasury Department had effectively loaned money to the Obama campaign for the trip (which would be another violation of federal law, he said).

Cause of Action also noted another wrinkle: HHS’ reclassification of the trip as a campaign trip means that A.J. Pearlman, the adviser who traveled to the event with Sebelius, also violated the Hatch Act.

“That assistant’s participation in the event in North Carolina would in fact be a Hatch Act violation,” Cause of Action said in another complaint to the Office of Special Counsel.

Cause of Action blamed Obama and Sebelius for compromising Pearlman. “The consequence here is that A.J. Pearlman is thrown under the bus by Sebelius. Sebelius asked the DNC to reimburse HHS for A.J. Pearlman’s activities, which basically [means] A.J. Pearlman violated the Hatch Act, which means A.J. Pearlman needs to be disciplined, most likely fired,” Epstein explained. “Even though she didn’t intend to engage in any political activity, she was just doing what she was told.”

An OSC spokesperson said it could not comment on the Hatch Act complaint, due to privacy laws.


The Press Democrat: Federal judge to rule on oyster farm’s bid to stay open

Federal judge to rule on oyster farm’s bid to stay open


Published: Friday, January 25, 2013

OAKLAND — A federal judge Friday heard arguments but delayed a decision on a bid by Drakes Bay Oyster Co. to avert a government-ordered shutdown while the company’s legal challenge is resolved.

U.S. District Judge Yvonne Gonzalez Rogers conducted the hearing before a packed courtroom while a crowd of more than 50 people was left standing in front of the federal courthouse in downtown Oakland.

Kevin Lunny, operator of the embattled oyster farm in the 2,500-acre Drakes Estero in Point Reyes National Seashore, is fighting Interior Secretary Ken Salazar’s decision Nov. 29 denying renewal of the operation’s federal permit.

The judge did not indicate when she would rule on the request for an injunction but seemed to cast doubt on the oyster company’s case when she questioned whether the court has jurisdiction in the matter.

“Now, it’s waiting time,” Lunny said in the federal building courtyard after the hearing.

Drakes Bay Oyster Co. plants and harvests 8 million oysters — worth about $1.5 million a year — from the estero, a five-fingered estuary in the national seashore in Marin County.

The judge did not say when she would issue a decision, said Lunny and his attorney, Amber Abbasi, of the Washington, D.C.-based nonprofit group Cause of Action.

Lunny, who was born and raised on a ranch next to the estero, said he was “absolutely hopeful” of a favorable decision. “This is a matter of law. Our attorneys did a beautiful job.”

Sen. Dianne Feinstein’s legislation in 2009 gave Salazar sole discretion to renew the oyster farm’s permit, issued 40 years ago to a previous owner of the oyster farm, which Lunny acquired in 2004.

Four days after Salazar’s decision, Lunny filed the lawsuit alleging it violated federal environmental rules and was based on faulty science.

But without a stay of the Feb. 28 deadline to shut down, Lunny said his enterprise, which employs 31 full-time workers, will be lost.

If he is forced to lay off the staff, remove their housing and kill 19 million oysters in the estero, “there’s no recovering this business,” he said.

Lunny said he is already scaling back the operation, harvesting oysters but no longer planting oyster larvae in the estero’s clear, cold water.

“It’s hard to look at what could happen here,” Lunny said. “It could devastate a small community.”

The prolonged battle over Drakes Bay Oyster Co. pits supporters of West Marin County agriculture, who fear that Salazar’s decision foretells the loss of permits for onshore ranches in the national seashore, versus wilderness advocates who insist that all human activity must be removed from the estero based on its congressional designation as a wilderness area.

Abbasi said she thought the judge “seemed very interested in the irreparable harm,” referring to Lunny’s claim that an ultimate victory in court would do no good if he has to shut down in a matter of weeks.

Abbasi said Judge Rogers’ decision on Lunny’s request to stay in business could be appealed.

Lawyers for Salazar said in court papers that his decision was not subject to environmental rules and that the “allegations of scientific misconduct are baseless.”

Salazar’s decision was “based on the incompatibility of commercial activities in wilderness and not on … data that was asserted to be flawed.”

Lunny’s loss of business was “a foreseeable consequence” of buying the oyster farm in 2004.

Lunny noted Friday that oysters have been harvested from Drakes Estero since 1934.


The Recorder: Passions Run High in Bivalve Battle

Read the full story here. The Recorder

“Leading the legal fistfight is Cause of Action, a libertarian advocacy group with ties to Tea Party politics. The Washington, D.C., group represents the oyster company pro bono and has also been leading an aggressive public relations campaign.

A preliminary hurdle for the lawyers will be persuading Gonzalez Rogers she can take up the case under the Administrative Procedure Act, which provides an avenue for judicial review of some executive decisions. Also at issue is a provision of the Interior Department’s 2010 appropriations bill, authorizing a new 10-year permit to be issued to Drakes Bay Oyster Co. “notwithstanding any other provision of law.”

The government claims in court filings that since Interior Secretary Kenneth Salazar took no action and simply allowed an existing lease to expire, the decision is unreviewable. For the same reason, Justice Department lawyers argue the Interior Department was exempt from compliance with the National Environmental Policy Act, or NEPA.

Amber Abbasi, the company’s lead lawyer at Cause of Action, calls those assertions “ridiculous.” Salazar took action when he denied the oyster farm’s application for a new permit, Abbasi said. What’s more, Abbasi adds, the Interior Department and National Park Service did not follow mandated standards under NEPA, which requires an environmental impact study and public comment prior to federal action.

“Congress doesn’t want the federal agencies to be able to get away with something like this,” Abbasi said. What her group wants is to preserve the status quo so the oyster farm can survive to fight its case in court. If Lunny doesn’t win his injunction, the farm is done, Abbasi said. “That’s the kind of injury that can’t possibly be compensated…”

Washington Free Beacon: Hoping for Relief – Embattled oyster company heads to court hoping for stay on government’s decision to kill it

Read the full story here. The Washington Free Beacon

The Drakes Bay Oyster Company produces about 40 percent of California’s oysters, said Amber Abbasi, chief counsel of Regulatory Affairs for Cause of Action.

Cause of Action, a government watchdog group, is representing Drakes Bay Oyster Company in the lawsuit. Abbasi also noted that the company is the last oyster cannery left in California, which means that the employees who lose their jobs would have difficulty finding employment due to their specialized skill set. The company has provided housing for many employees who would lose not only their jobs but also their homes if the government succeeds in shutting down the business.

“If the judge doesn’t grant this injunction, the business will be lost,” regardless of the outcome, said Abbasi….

CoA Takes Action Against DNC, Sebelius Aide for breaking the law

Cause of Action filed a complaint before the Federal Election Commission (FEC) today alleging that the Democratic National Committee (DNC) and Andrew Tobias, treasurer of the DNC,  violated the Federal Election Campaign Act (FECA) and FEC regulations when they reimbursed the Department of Health and Human Services for Secretary Kathleen Sebelius’ 2012 Hatch Act violation.

In September, the Office of Special Counsel (OSC) found Sebelius guilty of violating the Hatch Act, but claimed that the DNC’s reimbursement meant that the “issue had been resolved.”  Cause of Action has found that the DNC failed to properly disclose its reimbursements as independent expenditures, therefore violating FECA.

Cause of Action’s investigation also raises the question as to whether Sebelius’ use of her official capacity to support President Obama’s re-election was paid for by a loan from the United States, later reimbursed by the DNC, but nevertheless in potential violation of 18 U.S.C. § 595.

Cause of Action is also filing a complaint with OSC requesting an investigation into Sebelius’s aide, AJ Pearlman. The complaint states that though Pearlman’s expenses were reimbursed, she was never investigated for potential violations of the law – including a violation of the Hatch Act.

Please see these important documents below:

FEC complaint against the DNC 

FEC complaint exhibits

OSC complaint against AJ Pearlman

 Full Press Release

Wednesday, January 30, 2013 Morning News

Coverage of our Drakes Bay Oyster Company lawsuit against the Department of the Interior and National Park Service continues. Listen as Owner Kevin Lunny details the fight on KALW San Francisco:

Drakes Bay Oyster Company, an oyster farm in the Point Reyes National Seashore, is at the center of a nationwide debate over what it means to preserve wilderness. When the national seashore was created, the oyster farm got a 40 year lease to operate on the park land. That lease expired at the end of 2012, and Interior Secretary Ken Salazar refused to renew it.

There is more trouble at the Department of the Interior this week. Assistant Secretary Tony Babauta, an Obama Appointee, has resigned following an investigation into his official travel. More from the Washington Post:

A Department of Interior official whose official travel and other conduct was being investigated has resigned. Tony Babauta, the Assistant Interior Secretary for Insular Areas, is leaving the agency Feb. 1, a spokesman tells the Loop, though Babauta has been on administrative leave since Nov. 17 while the investigation was pending. President Obama named Babauta, a native of Guam, to the position in 2009. He was tasked with overseeing U.S. territories including Guam, American Samoa, and the Northern Mariana Islands. 

Ray LaHood announced that he will vacate his position as Secretary of the Department of Transportation after four years in the position. The Washington Times has this story:

President Obama is losing another trusted member of his Cabinet with the announcement Tuesday that Transportation Secretary Ray LaHood is leaving the administration. Mr. LaHood, 67, the last Republican still serving in Mr. Obama’s Cabinet, said he will stay on until a successor is confirmed by the Senate. The president has not yet announced a nominee.

There’s a new watchdog in town this week as the SEC names a new Inspector General.

More interesting reads:

Federal Computer Week – Groups call for stronger FOIA