Environment

Federal government seeking public comment on listing two bird and one mussel species in NC as threatened

Black-Capped Petrel (Photo taken by Tom Benson, Aug. 25, 2017, in Dare County.)

When the Black-Capped Petrel flies over the sea at night, the wind passes over its wings, creating a sound that those fortunate enough to hear it describe as “flute-like.” Its nighttime calls have been characterized as eerie, like that of a cat hooting. Although the rare bird, with its white rump and collar, and of course, black cap, nests in Haiti and the Dominican Republic, its range includes the North Carolina coast.

Now the US Fish and Wildlife Service is proposing to list the Black-Capped Petrel as threatened, along with the Eastern Blackrail and the Atlantic Pigtoe, whose native habitats include portions of North Carolina. The agency is accepting public comment on the plan through Dec. 10.

A threatened designation means the species is likely to become endangered within the “foreseeable future” — 50 years — throughout all or a significant portion of its range, according to the agency.By designating the species as threatened, USFWS can then extend protections to their habitats, such as triggering environmental reviews and other analysis.

Climate change, with its attendant flooding, temperature increases and projected sea level rise, are threatening the Eastern Blackrail, whose numbers have declined in some areas of the country by as much as 90 percent. The Center for Biological Diversity petitioned USFWS to designate the bird as threatened because it is also losing ground to “continued alteration and loss of wetland habitats, land management practices that result in fire suppression (or inappropriately timed fire application that may cause direct mortalities), grazing, haying and mowing, and impounding of wetlands,” according to USFWS.

If the bird receives threatened status, certain activities, such as grazing on public lands, would be prohibited in its habitat during critical time periods, such as nesting and brooding seasons, and post-breeding flightless molt periods, the agency said.

The Atlantic Pigtoe, a type of freshwater mussel, has been found, albeit in low numbers in the Chowan, Roanoke, Tar, Neuse, Cape Fear and Yadkin-Pee Dee river basins. North Carolina considers the Atlantic Pigtoe endangered/critically imperiled, as its habitat has been damaged by water pollution from sewage treatment plants, road runoff, and private wastewater discharges, as well as disrupted by dams.

While these designations can help prolong the life of the species, the protections aren’t airtight. In the case of the Black-Capped Petrel, its primary breeding habitat is on several Caribbean islands, beyond the reach of US authority to control deforestation there. Here in the US, private landowners aren’t required to protect the species unless they are involved in projects that require federal funding or permits.

And the agency can still issue “incidental take permits” if it determines a certain number of the species can be killed, for example, as the result of a highway or pipeline being built. As part of the Complete 540 toll road project in Wake County, USFWS issued incidental take permits for the endangered Dwarf Wedgemussel and the Yellow Lance Mussel, which live in Swift Creek. The Southern Environmental Law Center has signaled it intends to sue over those permits.

 

 

Courts & the Law, Defending Democracy, News

Report calls for state supreme court reform, including in North Carolina

The Brennan Center for Justice has released a new report calling for reform to state supreme courts, particularly where high-cost elections have become the norm.

“The U.S. Supreme Court isn’t the only institution roiled by a highly politicized judicial selection process,” a news release Thursday stated.

The report from the nonpartisan law and policy institute, “Choosing State Judges: A Plan for Reform,” focuses on the whole country, urging states to abolish elections for state supreme court justices and instead adopt a transparent, publicly accountable appointment process. It also calls for the adoption of a lengthy single term for state supreme court justices, along with other reforms designed to rein in the role of money and politics in state courts.

“At a time when the broken process for confirming justices to the U.S. Supreme Court is in sharp focus, safeguarding state courts from inappropriate political pressure should be urgent business,” said Alicia Bannon, author of the report and deputy director of the Brennan Center’s Democracy Program. “State judicial elections used to be subdued affairs. No more. They are now awash in outside cash, dark money, and special interests that threaten the independence of the judiciary. It’s time to do away with supreme court elections and move toward a more independent, more accountable process.”

North Carolina elects judges in partisan races. Lawmakers considered judicial merit selection plans over the past year, but most were considered “window dressing” for legislative judicial appointment plans. Similarly, there is a constitutional amendment on the ballot in November for a judicial legislative appointment process for judicial vacancies, though it is described as a merit-based process.

“You’ll see that while we believe the NC system needs reform, we believe the current ballot measure up for consideration this November is actually the wrong approach,” a Brennan Center spokesperson said in an email. “As our report outlines, research shows the ballot measure’s suggestion of legislative control over judicial selection actually undermines public accountability and opens the door to backroom deals and corruption.”

North Carolina is also one of several states the Brennan Center is watching for dark money expenditures on the state Supreme Court race. This year’s is expected to be contentious with two Republicans, one of whom is an incumbent, and a Democrat on the ballot.

The state saw $5.4 million in spending the 2016 election of now Justice Mike Morgan, which shifted the court’s ideological balance to the left. $4.7 million of that spending was from outside groups that partially or completely conceal their donors.

The Brennan Center’s research has shown that million-dollar campaigns for state supreme court seats are fast becoming the national norm. Dark, untraceable funds are flooding judicial races, and national political groups and business interests regularly pour money into these campaigns.

The research shows that one third of all elected state justices have been through at least one million-dollar race, and 90 percent of voters believe campaign cash affects judicial decision making.

Here are the recommendations from the latest report, which is the culmination of a three-year research project:

• The 38 states that have elections or retention elections for state supreme court justices should eliminate them.
• States should adopt a publicly accountable appointment process where an independent, bipartisan commission vets candidates and creates a shortlist for appointment by the governor.
• Those commissions should have transparent procedures and clear criteria for vetting candidates, and their membership should be bipartisan, appointed by diverse stakeholders, and include non-lawyers.
• State justices should serve for a single, lengthy term rather than face elections or a political reappointment process to retain their seats.

“The voice of the people is crucial in helping determine who sits on our courts,” Bannon said. “But the research is clear: elections and the money that pours through them undermine judges’ ability to perform their constitutional functions. Judges are meant to be independent arbiters of the law. Our proposals help ensure they can do their jobs fairly and equitably.”

Commentary, News

Second thoughts: Now it’s three GOP lawmakers who oppose judicial appointments amendment

As we reported in this space yesterday, Republican Senator Wesley Meredith has done an about-face on the proposed constitutional amendment that would take the power to fill judicial vacancies from the Governor and, for all practical purposes, give it to legislative leaders. Meredith’s explanation was lame and confusing, but he made it clear that he now opposes the amendment that he voted on multiple occasions to place on the ballot.

Now comes word that Meredith has been joined by two additional flip-flopping fellow GOP’ers. Justin Guillory of the advocacy group “Stop the Deceptive Amendments” explains:

Three Republican state legislators come out against the judicial vacancy amendment

RALEIGH—Stop Deceptive Amendments today thanked three Republican state legislators who are now publicly opposed to the judicial vacancy amendment.

  • Sen. Rick Horner (R – Johnston, Nash, Wilson) announced his opposition to the judicial vacancy and elections board amendments at a candidate forum.
  • Rep. Chuck McGrady (R – Henderson) explained his opposition to the judicial vacancy amendment and tax cap amendments on his website.
  • Sen. Wesley Meredith (R – Cumberland) announced his opposition to the judicial vacancy amendment at a candidate forum. (Video here at 23:45).

These three Republican lawmakers join former Republican Governors Pat McCrory and Jim Martin and former Republican Chief Justices Rhoda Billings and I. Beverly Lake in opposition to the judicial vacancy amendment.

In addition to growing Republican opposition, for the first time a poll found the judicial vacancy amendment losing among voters. The new poll from Spectrum News and SurveyUSA found the amendment losing 35%-36%.

“The momentum to defeat this misleading and dangerous amendment is growing by the day,” said Justin Guillory from Stop Deceptive Amendments. “Bipartisan opposition to the judicial vacancy amendment proves this is a bad idea that will permanently alter our constitutional system of checks and balances.”

For more, visit stopdeceptiveamendments.com.

Commentary, News

Today’s “must read”: NC’s death row packed with people convicted under obsolete laws

Be sure to take just a few minutes out of your day today to check out a new, powerful and easy-to-read report from the good people at the Center for Death Penalty Litigation. “Unequal Justice: How Obsolete Laws and Unfair Trials Created North Carolina’s Outsized Death Row” offers a damning assessment of a broken and unjust system that has placed and left dozens of people on death row who were convicted under widely varying laws. This is from the summary:

The death penalty is all but extinct in North Carolina. Juries have recommended only a single new death sentence in the past four years. The state hasn’t carried out an execution since 2006. Yet, North Carolina has the sixth largest death row in the nation, with more than 140 men and women. It is a relic of another era.

More than 100 of N.C.’s death row prisoners — about three-quarters — were sentenced in the 1990s, under wildly different laws. During those years, North Carolina juries sent dozens of people a year to death row, more than Texas. The state’s courtrooms were dominated by prosecutors like Ken Honeycutt in Stanly County, who celebrated new death sentences by handing out noose lapel pins to his assistant prosecutors.

Beginning in 2001, after investigations and DNA testing began to reveal innocent people on death row, a wave of reforms transformed the landscape. New laws guaranteed capital defendants such basic rights as trained defense attorneys and the right to see all the evidence in their cases. A court mandate requiring prosecutors to seek death for virtually every first-degree murder — the only such requirement in the nation — was ended.

Today, the death penalty is seen as a tool to be used sparingly, instead of a bludgeon to be wielded in virtually every first-degree murder case. Yet, new laws and shifting public opinion have had little impact on prisoners sentenced in another era. The bulk of North Carolina’s death row is now made up of people who were tried 15, 20, even 25 years ago. They are prisoners of a state that has moved on, but has refused to reckon with its past.

DPL’s report, Unequal Justice, finds that out of 142 death row prisoners in North Carolina:

92% (131) were tried before a 2008 package of reforms intended to prevent false confessions and mistaken eyewitness identifications, which have been leading causes of wrongful convictions across the country. The new laws require interrogations and confessions to be recorded in homicide cases and set strict guidelines for eyewitness line-up procedures.

84% (119) were tried before a law granting defendants the right to see all the evidence in the prosecutor’s file — including information that might help reduce their sentence or prove their innocence.

73% (104) were sentenced before laws barring the execution of people with intellectual disabilities. Despite a promise of relief for these less culpable defendants, disabled prisoners remain on death row.

 73% (103) were sentenced before the creation of a statewide indigent defense agency that drastically improved the quality of representation for poor people facing the death penalty, and a law ending an unprecedented requirement that prosecutors pursue the death penalty in every aggravated first-degree murder. Before these changes, prosecutors did not have the ability to seek life sentences in these cases and poor people often received a sub-standard defense.

The bottom line: North Carolina’s death penalty is hopelessly obsolete and broken, and it continues to generate tremendous injustices. Click here to read the entire report and to watch a powerful video summary.

Commentary, News

GOP state senator opposes constitutional amendment that he voted to place on the ballot

There are a lot of strange and confusing aspects to the story surrounding the slate of constitutional amendments that Republican legislators have placed on the November ballot. Here, however, is an especially weird and perplexing one: It turns out that Wesley Meredith, a Republican senator from Fayetteville opposes the Republican-driven amendment to alter how North Carolina would fill judicial vacancies. The amendment, as you will recall, shifts the lion’s share of the power in such matters from the Governor to the General Assembly.

As reported by the Fayetteville Observer Meredith made public his opposition to the amendment during a community forum the other day. He did it again earlier today in an interview with Policy Watch. In the interview, Meredith expressed the strong belief that the current system for electing judges and filling judicial vacancies via gubernatorial appointment works well and has worked well for years under both Republican and Democratic governors.

What’s especially noteworthy about Meredith’s stance on the issue, of course, is that he is a Republican and the amendment (which is widely recognized and derided by many as a Republican Party power grab) was passed by both houses of the General Assembly with almost exclusively Republican votes.

What’s even stranger is that one of those Republican votes was Meredith himself.

On June 25, Meredith voted “aye” on both second and third reading on the Senate floor to send the original version of the amendment (a measure misleadingly dubbed the “Judicial Vacancy Sunshine Amendment”) to the ballot.

Sen. Wesley Meredith

That amendment was later declared unconstitutional by the state courts and rewritten during a hastily convened August special session that was held just weeks before the start of absentee voting. During the special session, Meredith again voted twice in favor of the new version of the proposal and three times in opposition to proposed Democratic efforts to amend the measure.

When pressed this morning for an explanation of the rather striking contradiction involved in publicly opposing an amendment that he himself had helped to place on the ballot, Meredith seemed to struggle. First, he observed that he had refused to sign onto the resolution in which the General Assembly called itself back into special session to rewrite the unconstitutional amendment. When asked however why he voted for the new and revised amendment once the session had been convened, Meredith claimed, that it was his (erroneous) understanding that if he had not done so, the original unconstitutional amendment would have somehow gone back on the ballot. He also claimed that he had sought to speak out on the matter in debate, but was not recognized by the presiding officer.

Meredith had less of an explanation and seemed flummoxed when asked about the original June vote. Instead of addressing the question directly, he instead observed that there had been a lot of confusing votes and discussions on judicial selection issues, reiterated his general support for the status quo and offered an apology if he had gotten any of the “dates” surrounding the matter mixed up.

The bottom line: If ever there was powerful indictment of all six constitutional amendments that appear on the ballot this fall, Meredith is it.  Simply put, if a veteran state senator — a man who cast numerous critical votes to place the amendments on the ballot — is so deeply confused about the action he has taken that he both a) didn’t understand the impact of his own action and/or b) has done a 180 degree flip flop on one critically important amendment in just a matter of weeks, something is decidedly rotten in the state of Denmark.