Exclusive Opinion: The Real Reason for Piping the Ashland Canal

Piping the Ashland Canal – A Reason You’ve Never Heard Of

by Craig Anderson

In order to gain a relatively quick appreciation for the City of Ashland’s inimitable form of governance, there is no better way than to volunteer for one of the multitudinous committees and commissions that the City has on offer. The last time I checked, Ashland had three times as many committees and commissions as any other comparably-sized Oregon city. Although that might seem to be a testament to participatory democracy, it is actually a carefully- orchestrated strategy to, at once, dupe an unsuspecting populace and allow for the execution of pre-determined decisions.

The mindset behind this strategy is best summed up in an anecdote shared with me by Kelly Madding, Ashland’s current City Administrator and my former supervisor at Jackson County, where we both worked together for several years. While casually discussing Ashland’s politics one day, Kelly told me about how things were when she was a planner for Ashland in the ’90’s. This was during the period that Ashland’s long-time City Administrator Brian Almquist was at the helm. Kelly told me that, when during staff meetings some thorny issue would arise, Almquist would sweep it away with two simple words: “Committee it.” The word “committee” does not appear in Webster’s as a verb, but I think we all know what he meant. It’s safe to say that his legacy of passive-aggressive cynicism is well-intact, although perhaps not overseen by City staff as much as it is by mayor John Stromberg, his political cronies, and a cast of well- connected wannabe oligarchs.

Back in 2012 when Kelly and I were at the County together I told her that I had been appointed to Ashland’s Transportation Commission. She said something like, “That’s great!”, but the look she gave me said something entirely different. It seemed like a strange mix of amusement, pity and concern. Looking back, maybe she was amused at the idea that someone indoctrinated in the ways of government would be so naive as to play along with such a silly game. Maybe she took pity at the knowledge that my naivety would be thrown on the rocks of political expediency. Perhaps she was concerned that my reaction to the former might cause some trouble for both of us. If those were indeed the thoughts behind her expression, they proved prophetic.

I first publicly expressed my displeasure in February of 2014, my second year on the Transportation Commission. The City – most visibly through John Stromberg, Rich Rosenthal and Mike Faught – was aggressively pursuing the East Nevada Street Bridge project in the North Mountain Plan area. After failing to win any support on the Transportation Commission for taking a second look at the project, I vented my concerns to a grant funding agency in an email from my personal email account and as an individual. Nevertheless, Kelly called me into her office and informed me that Mayor Stromberg had contacted her supervisor, County Administrator Danny Jordan, requesting that I be fired. Unlike former Ashland Public Works employee Pieter Smeenk and his wife, former Ashland Parks and Recreation employee Christine Dodson, who were both unjustifiably fired from the City for daring to speak out, I was out of reach of Stromberg’s totalitarian tentacles and I managed to keep my job.

I found out years later that, after speaking out against one of the City’s pet projects, Stromberg, Rosenthal and Faught secretly met with the chair of the Transportation Commission and thought up ways to isolate and neutralize me on the Commission. Well, their strategy worked and I resigned from the Commission mid-meeting later that year. But thanks to a great deal of effort by activists in the neighborhood where the bridge was proposed, the project was later unanimously rejected by the Transportation Commission and then put on the back burner while

the City pursued another fraudulent road-building scheme with the grant money they were going to use for the bridge.

Even after this episode, Kelly, to her credit, gave me her trust and I continued to assume a fairly high-level of responsibility over transportation-related issues in our department. This was partially because of my background, which involves an understanding of an arcane maze of rules and regulations. Kelly also entrusted me to handle a good deal of the County’s water quality responsibilities, where a similar maze of regulations apply and where I acquired the knowledge that’s lead me to write the rest of this.

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Jackson County, and all of the cities within the County, are what’s known as “designated management agencies” (or “DMAs”) in something called the Rogue River Basin TMDL (Total Daily Maximum Load). TMDL is a federally-mandated (EPA) program that is managed in Oregon by the Oregon Department of Environmental Quality (DEQ). It has ostensibly been put into place in order to bring polluted water bodies up to standards in the Clean Water Act (CWA). I was one of two representatives from Jackson County who served on the Rogue Basin TMDL committee with other staff from Jackson and Josephine Counties. In this capacity I was responsible for compiling Jackson County’s annual report for DEQ showing compliance with the TMDL. Since the 5,000 square mile Rogue River basin and its tributaries contain threatened salmonid habitat, there is some overlap between the requirements in the Clean Water Act and the Endangered Species Act, and many of the activities prescribed in TMDLs are there to protect fish. Migrating salmonid species are particularly sensitive to high water temperatures and so many activities prescribed in TMDLs address this key “pollutant.”

In implementing TMDLs, DEQ is put under conflicting pressures which, in my observation, results in a sort of schizophrenic agency. DEQ staff are expected to ensure regulatory compliance. At the same time, they are pressured from above, often by legislators, to not be too regulatory. Cities like Ashland, who operate their own waste water treatment facilities – a “point source” of hot water – and must secure special permits from DEQ (NPDES or National Pollution Discharge Elimination System permits) sometimes bully agency staff by using their political muscle and going over their heads in order to make the permitting process go more smoothly. Going “smoothly” usually means keeping things quiet. And, in contrast to land use decisions in Oregon which require local governments to comply with an extensive publicly- noticed decision-making process, DEQ requires nothing of the sort. This lack of public oversight suits most public works directors just fine, particularly those like Ashland’s Paula Brown, whose autocratic arrogance is legendary. And this is part of the reason why the City of Ashland can get away with the complete con job that they’re pulling on the Ashland Canal.

Between 2003 and 2010 I lived a few blocks below the Ashland Canal. The trail along its banks is one of Ashland’s treasures. I used to strap my infant son into a backpack and walk along its length, bumping into friends and neighbors along the way, shaded under magnificent Douglas Firs and Ponderosa Pines, and enjoying the amazing views from the trail. The idea that the City wants to bulldoze a pipeline here is disturbing to say the least. Greg Carey, an acquaintance of mine and one of the biologists who analyzed the potential impacts of the piping project, told me that there is no way to know for sure how many trees along the canal will die once their source of water is cut off. He seemed surprised that the City was pushing the project so hard given the likely impacts associated with perhaps hundreds of dead and dying mature firs along the length of the canal. But, I dunno, maybe there are very good reasons why this needs to happen?

Like many of the Chronicle’s readers, after reviewing the City’s arguments for the canal piping, I had yet to discover those good reasons. While I concede that saving water is a good thing and

that there may be some liability issues involved in a leaky canal, these are not reasons enough for a City like Ashland to embark on such a costly and disruptive project. What about the liability created by dead trees perched over million dollar houses?

Because of my water quality background, as well as my many years of experience in seeing how public works projects are typically implemented, I had many doubts about the City’s arguments for and methods of advancing the canal project. Of all the arguments the City was making, the one about addressing E. coli contamination seemed the most disingenuous. E. coli is in just about every major tributary in the Rogue River basin, and the studies the City cites are hardly rigorous. I doubt whether the samplings that have been done – partly by volunteers – have any statistical validity. As far as I can tell, there’s no evidence that DEQ has requested that the City address E. coli through this project. And after speaking to several experts on water quality, they all agreed that the City is not doing this project because of E. coli contamination.

So what is the real reason for piping the Ashland Canal? To understand the answer, we need to consider the other water quality projects that Ashland has been pursuing lately, some of which are included in the City’s April 2, 2019 Capital Improvement Program (CIP). On pages 60-61 of the CIP there are two such projects which are associated with the City’s Wastewater Treatment Plant (WWTP). The first is a 25-year riparian restoration/shading program with a cost of nearly $3 million in the first five years. The second is a roughly $2 million relocation of the City’s WWTP outfall, from Ashland Creek to below the confluence of Ashland and Bear Creeks. Not listed in the CIP is the City’s recent purchase of the 21-acre Hardesty property directly below the WWTP for $1.2 million, partially with the intention of building wetlands for an as yet undetermined cost. The City also has plans to do cold water releases from Reeder Reservoir with additional associated costs. All of these projects have one thing in common: They are intended to address water quality impacts associated high temperature water releases from the WWTP. Although this has never been acknowledged by the City or DEQ, I’ll explain why I believe that the Ashland Canal piping project is another such project. But I also need to tell you about yet another project that belongs on this list. And it will not cost Ashland residents a dime. You will not find it in any documents. It doesn’t have an official name. Let’s just call it the “Helman Ditch Heist.”

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Until just recently, the Helman Ditch, or a portion of it, ran through a pipe in my front yard. Some Chronicle readers may be familiar with the Helman Ditch through a cover story that appeared in the March 2019 edition of Ashland’s Sneak Preview, written by Sneak Preview editor Curtis Hayden. As Mr. Hayden reported, the Helman Ditch was built by one of Ashland’s founders and is one of the oldest irrigation ditches in Oregon. It has a profound effect on Ashland Creek’s water quality during irrigation season, sometimes diverting over 1/2 the flow of the creek. The main water right holders on the ditch (at approx. 80%) are the Billings, whose family have owned the large farm at the very end of the ditch located on the north edge of Ashland since the mid 1800’s. Their 1850’s era water rights to the Helman Ditch are some of the oldest in the entire State of Oregon. Another 10% or so of the water rights along the ditch were, until recently, held by the Cowan Family for their 5-acre pasture that is immediately behind my house. This property is now owned by Kyle Taylor, a developer whose subdivision was just recently approved by the City. The other 10% or so of the water rights on the ditch mostly belong to the Reynolds Family who own farm property near the bottom of Helman Street. The users of the Helman Ditch water are a loose assemblage of folks known as the Helman Ditch Users Group (HDUG). I happen to be one of them. Or, I was one of them.

I moved into my house on Elizabeth Avenue in April of 2010. Within a month or so of moving in, I met my next-door neighbor, current Ashland City Council member Steve Jensen. Steve notified me that we both lived on property that had water rights to the Helman Ditch going

back to the 1850’s and that our rights to Ashland Creek water via Helman Ditch pre-dated the City of Ashland’s rights and were therefore senior to theirs. We could essentially irrigate our yards from Ashland Creek – for free – before anyone in the City could have a drop to drink (or so it was explained to me). Even though I was renting at the time, I thought, “that’s pretty cool.” Steve then told me that my property didn’t have any direct access to water from the ditch, but for $25/month (to offset his pumping costs) he would supply me with pressurized water from his access point. That sounded good to me as I had a fair amount of yard to water and it was cheaper than paying for City water. Steve also indicated that he was the person in charge of the managing the Helman Ditch and that a portion of the $25 fee covered those activities. “Fair enough,” I thought.

A couple of years later I bought the property I had been renting. Before I signed the papers, I went over to the Watermaster’s office, upstairs from the office where I worked at the County Courthouse. I wanted to make sure that I had documentation on the water right that Steve had told me about. Sure enough, Travis Kelly, the assistant Watermaster at the time, provided me with documentation confirming that Steve and I shared the same water right which dated back to 1858. Super cool.

Unfortunately, my relationship with Steve soured over the next couple of years and he decided that he would no longer provide me with ditch water through his property. So I got permits from the City to dig up the pipe holding the ditch water in front of my house and thereby secured my own access to Helman Ditch water.

Fast forward to the Ashland City Council meeting of May 1, 2018. I happened to be there for an agenda item dealing with that fraudulent transportation project I mentioned earlier. By coincidence it was also the meeting where Steve was appointed to the Council. It was interesting to watch the political maneuvering involved in appointing a replacement for Traci Darrow, a council member who had recently moved out of town. Two weeks prior to the May 1st meeting Rich Rosenthal made an (unprecedented?) motion to re-open the application process for the vacant council seat for an additional week “due to a lack of applicants,” even though four applications, including those from Tonya Graham and George Kramer, had been received by the deadline. Soon after the Council’s decision to allow the extension, Steve’s application came in.

While waiting for the agenda item I came for, I carefully watched the Council make their decision on the replacement for the vacant seat. John Stromberg had a look of complete disinterest. Knowing what I do about Mayor Stromberg, this was fishy. He would micro-manage the appointment of someone to the City’s Band Board. I was curious how my neighbor Steve would fare in the Council’s vote. Dennis Slattery was still not pleased with the fact that Rich Rosenthal had re-opened the application process. I’ve seen enough votes being cast over my 25 years in government to know that this one was rigged. Steve won the replacement position on the council and Stromberg never had to cast a vote. My neighbor was a shoo-in.

It was a late summer day, a few months after Steve’s appointment to the Council and a couple of months before the November election. If Steve was to hold his Council seat he would need to win an actual election and there was some pretty good competition for his seat. I was working on a piece of irrigation line immediately adjacent to the large hedge that separates Steve’s yard from mine when I heard a familiar voice coming from Steve’s speakerphone. It was John Stromberg. Steve had no idea I was there. I kept working on my irrigation project with a curiosity about what Steve and John might be up to. John wanted Steve to send out a letter or email to a group of people. Steve wanted to wait to send it out until after the November election. John kept pushing Steve to do it before November and made it clear that Steve owed him this. Steve was acknowledging that he agreed to do it but he was equally firm that it happen after November. They went back and forth for a few minutes like this. Based on what I

heard, whatever they were talking about seemed to be related to Steve’s appointment to the City Council back in May and it was a big deal for both of them. I remember telling my wife about it afterwards and joking around that it might have something to do with the Helman Ditch.

On November 27, 2018, a few months after I’d overheard the conversation between John and Steve, and three weeks after Steve was elected to the Council, I, along with the other members of the HDUG received an email from Steve. Attached to his email was an odd invoice – reading more like a contract – from Paula Brown, the City’s Public Works Director. The “invoice,” for a piddly $738.80, was for road repairs to Glenn Street that were apparently needed as a result of a leaky section of pipe carrying Helman Ditch water. It was dated October 23rd.

There were a few alarm bells that started going off for me after looking at Paula Brown’s invoice. First, why was there over a one month gap in time between the date of the invoice and Steve’s email? Second, in the invoice Steve is identified as HDUG’s “representative,” who, in that role, apparently made agreements with the City on our behalf. Third, these agreements stipulate future actions with regard to maintenance of the Helman Ditch that are entirely contradictory to past maintenance practices. And fourth, the invoice stipulated that if HDUG didn’t follow through with the agreements made by our “representative,” the City would “fill the pipe,” i.e., terminate the Helman Ditch.

As the self-described “manager” of HDUG, Steve occupies no officially-recognized authority with respect to the ditch, either by the Watermaster’s office or by the City of Ashland. Nevertheless, Paula Brown decided that Steve, as an acting City Council member, was the right person to legally represent HDUG and effectively enter into a contract on behalf of the water rights holders on the Helman Ditch. According to the terms described in the “invoice,” HDUG would be responsible for maintaining the City’s infrastructure in locations where the ditch had been piped by the City.

In addition to the obvious potential for a conflict of interest to exist where a person sits on a city council while negotiating with that same city on behalf of another group, Steve Jensen is not our legal representative. There are several other problems with such an arrangement. For starters, the City has no legal basis to charge water rights holders on the Helman Ditch for a single thing. The ditch was there in the 1850’s before the City of Ashland even existed as an entity. Additionally, if HDUG took responsibility for maintaining pipes installed by the City, along with the roads that sit on top of those pipes, it could potentially take a single maintenance event to make our water rights worthless. Obviously we wouldn’t be able to afford to pay the exorbitant cost of a large maintenance project. This would leave only one option for HDUG – the end of the Helman Ditch.

Within an hour of Steve’s email, Betty Jo Reynolds, one of the long-time HDUG members and water rights holders on the ditch, was the first to question the rationale behind Paula Brown’s invoice. Betty Jo cited a letter written by a former Watermaster to her husband dating from 1996 that referenced an Oregon Statute (ORS 540.730) explaining that it was the City who was responsible for maintaining portions of the ditch that had been piped by the City. The strange thing is that Steve knew all about the City’s legal responsibilities for maintaining the piped sections of the ditch and he had been using this knowledge to get the City to maintain those pipes for many years.

I remembered back to the conversation I overheard between John and Steve a couple of months earlier and kept staring at the date on Paula’s invoice. I started to feel queasy. For reasons I won’t go into, I had some serious trust issues with Steve. But this was on a different level. I didn’t want to believe what I was thinking.

After deciding that I didn’t have enough evidence to accuse Steve of anything so scandalous at this point, I emailed Paula suggesting that, because of his position on the City Council, Steve might not have been the right person to represent us. I also asked her for the legal basis of her invoice. Paula took offense at my suggestion that Steve might have had a conflict of interest and copied Steve in her response to me, providing no legal basis for billing us whatsoever. Over the course of the next two weeks, emails went back and forth between various HDUG members and Paula Brown. And even though I emailed him twice over the course of that timeframe, Steve had not been heard from since his original email. On December 16th Steve finally got back to us, offering to pass off his management responsibilities of the ditch to anyone who wanted it and singling me out for suggesting any potential conflict of interest.

It was at about that point that I started thinking about other things the City was doing with respect to water. I had lately seen Paula in the offices where I worked and I knew that she was working on getting some approvals from the County for the Hardesty property that the City had recently purchased. The timing and pace of Paula’s actions with respect to this property seemed urgent. This impression was confirmed by my co-worker who was handling Paula’s application. It prompted me to think more about the canal project and, in the back of my mind, I remembered hearing something about the City’s waste water treatment plant (WWTP).

I called up Jennie Morgan, who works for Rogue Valley Sewer Services (RVSS) and was on the TMDL committee with me. Jennie told me the little bit she knew about what was going on with Ashland’s WWTP, mentioning the City’s looming deadline for their NPDES permit. My eyebrows raised about three feet.

Then I called up my friend Bill Meyers, who is the Rogue Basin Coordinator for DEQ and someone I’ve known for 20 years. I first asked him about the E. coli argument, knowing that E. coli is almost everywhere and that it’s difficult to pinpoint a source for it. I knew that the Rogue Riverkeeper had done a study but not one with the level of rigor ordinarily required before a city like Ashland would embark on a project of such significant expense, not to mention political controversy. And I was curious if there was some DEQ enforcement action I didn’t hear about, knowing that a city would not undertake a project like the piping of Ashland Canal to address E. coli out of the goodness of their hearts.

Bill immediately went on the defensive saying something like, “Well, DEQ could do an enforcement action against the City if we chose to.” That was weird. I then asked whether the piping of the canal had anything to do with the City’s NPDES permit for their WWTP, knowing that the City’s plans for addressing temperature-related water quality issues in Ashland Creek included something called “flow augmentation,” which is a fancy term for putting (or keeping) more water in the creek. “Does the City want to take the water they’re saving by piping the canal and put that toward the re-issuance of their NPDES permit?” Seeming unusually agitated, Bill told me that the City would need to have water rights and that issue was very complicated and, basically, ‘I don’t want to talk about this anymore.’

Next up: Jim Pendleton at the Talent Irrigation District. Jim told me that the City had, if I wrote it down correctly, 1369 acre feet of water rights through TID which are conveyed through the Ashland Canal.

Things were seeming a bit Chinatown-ish and I was becoming more convinced that the City’s piping project was really more about the renewal of their long-expired (2008) NPDES permit than it was about water conservation, E. coli, liability issues, or any of the other excuses they were giving the public. And knowing how much of Ashland Creek is diverted to the Helman Ditch, it only made sense that Paula’s invoice was really a water grab in disguise. Certainly, preventing half of Ashland Creek’s water from going down some ancient irrigation ditch – while

causing the City numerous maintenance headaches in the process – would help with the “flow augmentation” section of their NPDES permit.

I then called up Jennifer Wigal, Deputy Administrator for DEQ’s water quality program. I told her everything I knew about the canal project and the Helman Ditch and asked her if she knew anything about what the City was up to. There was silence on the other end for a few moments and then, “There is a 30-day public comment period after the draft NPDES permit is released.” Ok, thanks Jennifer.

Not long after calling Jennifer I got a call from Zach Loboy, a water quality manager at DEQ and someone who occasionally attended the TMDL meetings with me. Zach did not seem happy. He asked if I was contacting DEQ as a representative of the County or as a private individual. He was not at all concerned about whether or not Ashland might be lying to the public about why they wanted to pipe the canal, nor was he concerned at the possibility that Ashland might be trying to steal water rights on the Helman Ditch in order to meet DEQ permit requirements. His concern was me asking questions. Zach offered to set up a meeting with me in order to educate me about DEQ’s TMDL program. I told him that I would welcome a meeting with he and Paula Brown. He declined.

I switched gears and called up a private sector water quality guy. This time, Dennis Reich, who, at the time was Southern Oregon Program Director for The Freshwater Trust and who was working with Ashland on their $3+ million riparian planting program. Dennis told me all about how the WWTP was blocking fish passage by creating a thermal barrier even during the winter, how the City was having a very hard time coming up with enough projects to meet the rigorous temperature requirements that were part of the re-issuance of their NPDES permit, how the City’s “no herbicide application” policy would have to be scrapped for the work they were doing, and how the public wasn’t being told a whole lot about the program because it might be “bad optics” for them to know that their money was being used to plant trees far outside the city limits.

But it was when I spoke with Nina Bell, attorney for Portland-based North West Environmental Advocates (NWEA), that everything completely fell into place. Nina and her organization are making life difficult for people like Paula Brown and the staff at DEQ. Along with a couple of other lawyers, they are taking DEQ’s permittees to task by calling out the glaring deficiencies in their NPDES permit compliance efforts, especially with regard to temperature. If you read through some of the documents on NWEA’s website, you will begin to get the picture that DEQ’s TMDL program is little more than an acquiescence to polluters. For example, the riparian shading programs being managed by The Freshwater Trust for the cities of Medford and Ashland are, according to NWEA, little more than a scam. They rely on all kinds of bait- and-switch schemes, ridiculous assumptions, and, worst of all, they allow Medford and Ashland to take thermal credits for doing projects that were already part of baseline assumptions in the approved TMDL. Essentially, DEQ is double (perhaps triple)-counting the benefits of these riparian planting projects in order to give Medford and Ashland’s wastewater facilities a pass. And according to a recent court decision that found in favor of NWEA, so- called “zombie” NPDES permit-holders, such as the City of Ashland, are not going to be able to delay bringing their facilities into compliance any longer.

Finally, I reluctantly went to talk with ultra nice guy Shavon Haynes, the current Watermaster and someone I’ve worked with over the years on water quality issues. I told him about my suspicions regarding the invoice from Paula and what the City might be up to with their NPDES permit. He neither confirmed nor denied my suspicions. But the conversation turned to my Helman Ditch water right. Shavon showed me a copy of a June 6, 1996 letter from Don Cowan, then-owner of the 5 acres behind my house as well as Steve’s. This property was formerly known as the “Buckles Farm.” The letter, addressed to Steve, said the following:

I have been told that you have apparently entered this property and interrupted the flow of the irrigation water which was directed toward the western part of the property designated by the Watermaster to be irrigated…. and redirected it toward your property for your personal use.

I suggest that you again review the information on irrigation which I gave you earlier this year…

The lateral leading from the Helman Ditch to the Buckles Farm was built for and is limited to delivering the Buckles Farm water quota exclusively to the Buckles Farm. Under no circumstances is it permitted to deliver water to a third party.

I read the letter over and over again. Steve had knowingly been stealing Helman Ditch water from the Cowans since at least 1996 and he lied to me about us having a water right. The earlier information I got from the Watermaster’s office showing that we had water rights was apparently doctored by a previous Watermaster who didn’t want to deal with the hassle of trying to police people like Steve and his buddy Mike Gardiner, who had also been taking water out of the Helman Ditch without a water right.

It was early January and it felt like rats were scurrying all around me. I decided to go directly to the source and email Kelly Madding. Kelly initially got back to me right away and agreed to a phone call. I emailed back and asked to meet with her. To this day I have not heard back from her. I emailed John Stromberg telling him about the conversation I overheard. Never heard back from him. I finally emailed every member of the City Council and all the members of HDUG. I haven’t had a single reply from anyone.

Last week (October 22nd) Paula Brown organized a meeting to officially notify everyone who may even potentially have a water right to the Helman Ditch that the City would henceforth put all maintenance responsibility on their backs. She also wanted her $738.80. Curiously, the only legal basis that Paula offered for her demand was the very same statute that the Watermaster’s office had interpreted as meaning the exact opposite in 1996. And when asked about that fact by Betty Jo Reynolds at the meeting, Paula’s reply was telling. She said, “Well, the Watermaster shouldn’t have given his opinion like that.”

You see, it’s not that the Watermaster was wrong. It’s that he didn’t know his place. And, if you’ve been in government in Oregon for a while, you’ll know that State employees have long since learned their place. We need not fear that they will give us their opinion on much of anything.

On reflection of the above, I’m not really concerned about the Helman Ditch, wastewater treatment plants, canals or NPDES permits. I’m concerned about what is happening to my friends in government. I’m concerned that not enough people care to do anything about it. And I’m concerned that we are rapidly approaching a time when dissenting opinions will never be heard again.

//inserted by Sharon