Can they do that?

Or, to be strictly grammatical,  the doer in this case being a single entity, if composed of several individuals, can it do that?

The “it” is the Executive Branch of the government of the state of Vermont, commonly known as the Douglas Administration. And the thing that it did was fire a state worker after the Legislature specifically told it not to fire that state worker, an instruction that Gov. Jim Douglas seemed to accept.

As with the grammar, the above description is imprecise. The Administration did not officially “fire” Jens Hawkins-Hilke, the scientist who provided expert advice to local planners involved in the Community Wildlife Program.

It just eliminated his position.

It did so even though the budget bill passed in late May stipulates with no apparent ambiguity that “(i)t is the intent of the general assembly that the fiscal year 2011 budget… funds two (2) limited service Fish and Wildlife Scientist II positions… The Scientist II positions shall continue to implement the landowner Incentive Program and Community Wildlife Program. “

A separate “Statement of Legislative Intent” filed by Appropriations Committee chairs Martha Heath (House) and Susan Bartlett (Senate) asserts that “the policy goal” of the provision is “to have continuity…for the wildlife related local municipal and regional planning…assistance these positions provide including wildlife crossing of roads in developed areas to improve planning for sustaining critical habitat for wildlife preservation.”

Douglas signed the bill on June 3. The next day, Jonathan Wood, the Secretary of the Agency of Natural Resources eliminated one (1) of those “two (2) Fish and Wildlife Science II positions, Hawkins-Hilke’s, the one that “implement(s) the…Community Wildlife Program.”

Could he do that?

Obviously he could because he did, though Hawkins-Hilke and the state employees union have filed a grievance. Until the grievance procedure runs its course, then, it’s premature to conclude that the termination (reduction in force, or RIF, in government jargon) was completely on the up and up.

But it isn’t too early to conclude whether the Executive Branch has the power to terminate a position even after it agrees (as at least implied by the Governor’s signature on the bill) not to terminate that position.

Apparently it does.

“The Legislature can put in language that says ‘you shall’ or ‘you shall not,’” said David Coriell, Douglas’s spokesman. “But when they say what the intent of the Legislature is, that’s a little fuzzier. Intent is not a mandate.”

Coriell, of course, works for the Executive Branch, and could be expected to interpret law and constitution in its favor. But Steve Klein, the head of the Legislature’s Joint Fiscal Office, a lawyer as well as a numbers whiz, agreed that in general “I don’t think legislative intent has the force of law,” and Paul Gilles, the Montpelier lawyer who is recognized as one of the state’s leading constitutional lawyers, said statutes are often “not implemented the way (legislators say) they’re supposed to be,” but courts are reluctant to intervene in jurisdictional disputes between the other two branches.

At any rate, the Legislature does not plan to take this case to court.

“We’re just urging the governor to follow the full intent of the law,” said Tom Cheney of Speaker Shap Smith’s office.

When one side in a legal dispute decides not to go to court, it’s usually because it doubts it can win.

So Hawkins-Hilke’s termination, while perhaps less than noble, arguably even dishonorable, appears to be within the Administration’s constitutional discretion.

Whether it violates the state’s contract with the Vermont State Employees Association is yet to be determined, and Hawkins-Hilke, not surprisingly, asserts that it does, and is therefore illegal.

“According to the union contract, (the RIF) has to be on economic grounds and has to be in compliance with the law,” he said. “The budget bill is law. It was signed June 3, and on June 4 administration continued with the RIF. So it is not in compliance with statute. Nor is it an economically driven cut.”

Yes, it is, insists ANR Secretary Wood, even though it saved only $16,000, the state’s half of Hawkins-Hilke’s pay. The other half came from the federal government.

“I would love the people who are saying that to live a little bit in my shoes,” Wood said. “The agency has had to reduce almost 100 positions…in the last couple of years. Unless you’re in state government it’s a little annoying to cavalierly talk about amounts of money as though they’re insignificant. This has been the largest reduction of state government in history. Every dollar is important.”

But Hawkins-Hilke and others suspect that the Administration wants to weaken environmental planning as much as it wants to save money. After all, it increased spending on some of its preferred functions, such as economic development.

And one email released by Administration Secretary Neale F. Lunderville’s office indicated that at least one Administration official, Human Resources Commissioner Caroline Earle, was “very concerned about this move in the light of the legislative language.”

Other officials, though, were confident that Wood had the authority to terminate the position.

Hawkins-Hilke pointed out that he is not the only environmental planner whose job has been eliminated.

“The only planner in Forest, Parks, and Recreation was RIFFED last year,” he said. The head planner for the Agency of Natural Resources was RIFFED  last year. The Basin Planning Program (part of the Water Quality Division) has taken a substantial hit.”

Dana Farley, president of the Vermont Planners Association, had a similar assessment.

“The planning community’s a little bit perplexed by it all,” she said. “Resources for planning have been cut for many years. We aren’t getting the kind of technical and funding support we used to. The loss of this position really tipped over the cart.”

Wood insisted that ANR would continue to help localities plan for wildlife conservation, though he acknowledged that the service “may not be quite as robust without having an individual dedicated to it.”

Evidence as to whether the position was terminated solely to save money might be found in the emails the VSEA is seeking from the Department under a Freedom of Information Act filing. According to Hawkins-Hilke, Lunderville’s office has complied with the request, and the Agency of Commerce and Community Development replied that it has “no communications whatsoever” on the matter, an assertion Hawkins-Hilke does not doubt.

But ANR is balking, arguing that though the VSEA does not want copies of the emails, only the opportunity to look at them, it must pay for the staff time required for the search.

This, too, could simply be because the hard-pressed agency needs to find all the money it can. On the other hand, just as a decision not to go to court usually indicates a weak case, a reluctance to turn over documents often means that the reluctant party does not want the documents in question to see the light of day.

Talk about a slam-dunk no-brainer.

Here’s a gift, worth millions in plain money, and more in measures money can’t match.

It’s for everyone. First for residents of the Northeast Kingdom, but also for all Vermonters, every American, even anyone in the world.

Not to mention the world itself.

Who could turn it down?

Maybe we could.

“We,” here, is technically the United States of America, or to be precise the Fish and Wildlife Service of its Interior Department, which now has 62 days to accept the gift of  more than 400 acres of land, including 1.4 miles of shoreline along Lake Memphremagog and 228 acres of wetlands.

Or it will turn into a pumpkin.

No, worse. Or it will be sold to whoever will pay the most for it, likely to be someone who will build immense and nearly identical McMansions.

Such are the terms of the will of Michael Dunn, who died on September 1, 2007, and who bequeathed his more than 800 acres on both sides of the U.S.-Canadian border to governments, hoping to preserve the land’s “open state” and recreational potential.

But only if those governments agreed to accept the donations within three years of Dunn’s death. Otherwise, the land is to be sold to provide the maximum benefit to another passion of Dunn’s life – the Modern Museum of Art in New York. That doesn’t give Fish and Wildlife much time.

(The federal government of Canada actually rejected the offer, but Quebec Province accepted, so the Canadian portion is saved. For whatever reason, Dunn did not offer a similar option to the state on this side of the border).

It isn’t that Fish and Wildlife is against accepting the gift. At an afternoon tour of the site yesterday afternoon, and later at a public hearing in Newport, Agency officials left little doubt that they wanted to preserve the land and that “we are aware of the deadline,” in the words of Janet Kennedy, the Massachusetts-based regional supervisor of the Service’s Wildlife Refuge System.

So what’s the problem?

Actually, there are two problems, and though right now it looks as though the deadline will be met, both problems illustrate how difficult it often is to get anything done these days in America, and perhaps especially in Vermont.

The first problem is that there is actually some opposition to accepting Dunn’s bequest. Not from the town of Derby, which considers saving the land “a real asset,” Selectboard member Karen Jenne told the hearing. Not from the State Legislature, which overwhelmingly passed a resolution urging the feds to take the deal. And not from the owners of neighboring lakeside cottages, several of whom came to the hearing to urge acceptance.

But Sherb Lang is against it, and so is Hunters, Anglers, Trappers of Vermont (HAT), of which Lang is the president. Lang raised no specific objections to federal ownership of the Dunn land. In fact, he called it “a wonderful piece of property.” But he and his associates are angry at the State Fish and Wildlife Department over other issues, and they remain furious about the 12-year-old sale of what were once called the Champion Lands to the state and federal governments.

This is, in short, a policy position founded on resentment, not an unusual phenomenon in rural Vermont.

The other, more influential, dissenter at the hearing was Duncan Kilmartin, the Republican State Representative from Newport. Kilmartin contended that the plan under consideration by state and federal officials didn’t really honor Dunn’s will, which specified that the land should remain available for “hikes and campers.”

Instead, Kilmartin said, the draft Environmental Assessment (the official subject of the public hearing) gives priority to conserving resources and wildlife habitat rather than human uses such as hiking and camping.

It’s unlikely that Kimartin has a better grasp of what Dunn wanted than does Michael Hickcox, the long-time family friend of Dunn’s who flew to Europe to bring Dunn’s remains home and who flew to Vermont from his San Francisco home for last evening’s hearing.

The proposed plan for the land is “in terms of spirit, exactly what (Dunn) would want,” Hickox said.

Besides, the draft EA does specify that under federal ownership the land will be open to hunting, fishing, and camping. But the proposed new owner is the Fish and Wildlife Service, whose basic mission concerns…fish and wildlife and their habitats. The Service can’t very well take ownership of land primarily for another purpose. Still, people fish, hunt, and camp on its lands all over the country.

The other problem has to do with bureaucratic sclerosis, some of it created by environmental law, which, in this case at least, might end up making it harder to protect the environment.

The National Environmental Policy Act of 1969 creates a complex and elaborate system of processes that have to be followed before a federal agency can acquire property, even for free.

As Janet Kennedy explained it last night, the first step was a “preliminary project proposal,” which started the NEPA process, leading to the draft EA examining whether the proposal “would significantly affect the environment” and proposing alternatives (in this case just two: take it or leave it).

What is happening now is the legally required comment period, after which a final EA will be issued and the regional supervisor will or will not issue a Fonsi, which is not a character in an old sitcom but a Finding of No Significant Impact, after which the Acting Fish and Wildlife Director in Washington may grant “permission to expand the boundary” of the existing Missisquoi National Wildlife Refuge, which will include the Dunn land, non-contiguous though it may be.

Got all that?

There is also the possibility that the whole process didn’t start soon enough. The trustees of the Dunn estate seemed to have had trouble navigating the political shoals in Washington until they turned to the Vermont Land Trust for help.

“You would think that giving away this land would take a ten-minute meeting and a handshake,” said Mark Frederick of the Community Financial Services Group, which is handling the Dunn trust. “But some said it wasn’t their jurisdiction, others said the property was too small for them, or they didn’t have the funding.”

When the VLT came into the picture, Frederick said, so did Vermont’s Congressional delegation, and then the process began to move.

In time? Jonathan Wood, the Vermont Agency of Natural Resources Secretary who conducted last night’s hearing with a booming voice and a soft touch, said he thought so. The state’s Fish and Game Department (part of Wood’s agency) will probably end up managing the new addition to the federal system, but it won’t cost much. The basic management plan is to leave it alone, and anyway the feds will pay for most of what has to be done.

See? A no-brainer slam-dunk.

Unless it isn’t.

USA Today came to Vermont last week to write about the Vermont Yankee squabble, and in Friday’s paper the reporter quoted Yankee spokesman Larry Smith describing the nuclear power plant’s opponents as “hippies from the ’60s who want to be against something, and it’s nuclear power.”

Not a very smart thing to say, at least not in the judgment of one Larry Smith, who said Tuesday, “not the smartest thing I ever said.”

Not what he meant, either, said Smith, who didn’t deny saying it. But he was referring, he said, only to some of those who oppose relicensing the plant for another 20 year run, “many of the same people who attended those (anti-nuclear) hearings” 40 years ago.

“The people who moved up here in the 60s, sort of counter-culture folks,” he said. “But it was not a general characterization. I would never characterize all our opponents that way.”

Good enough. But here’s the interesting thing. If he had meant it as a serious description of those against the relicensing (and we take him at his word that he did not), he would have had a point.

Not literally, of course. If the latest polls are accurate, most Vermonters don’t want the plant licensed to run past March of 2012, and surely most Vermonters do not fit the definition of “hippie”: “a person who opposes and rejects many of the conventional standards and customs of society” (American Heritage Dictionary, Second College Edition).

But broadening the definition a little (well, OK; a lot), the description fits. At least the leaders of the anti-Yankee forces tend to be political liberals, environmentalists who are suspicious of all large corporations, who might go out of their way to eat locally grown, organic food, who listen to public radio.

To a corporate executive at a nuclear power plant, these people would be not only wrong on the issue, but also…not my kind of people. Conversely, on the other side of the debate, those executives would be not only wrong on the issue, but…not our kind of people.

At some point this political tribalism becomes as significant, if not more so, than the differences over the issues, real though they are. On both sides, beating those other guys (not our kind of people) becomes the real goal.

This is not a phenomenon unique to Vermont. Take the dispute over drilling for oil in Alaska’s Arctic National Wildlife Refuge. The oil industry does not support drilling as fervently as do conservative commentators and operatives (the industry isn’t sure there’s that much oil there). The conservative commentariate has no economic vested interest. They just want to “stick it to the hippies,” or, more accurately, defeat environmentalists, who are not their kind of people (and who in turn delight in the conservative discomfort about continuing to lose this battle).

Something similar is going on in Vermont with regard to “permit reform,” which apparently isn’t going to happen again this year. But it’s a perennial. It will be back, promoted by the business community (especially the building contractors) and supported by most Republicans.

Their argument is that the hoops through which developers must jump before they are allowed to begin construction projects suppress economic growth in the state. Were it easier, quicker, and cheaper to get permits, they say, there would be more construction projects, hence more jobs and faster economic growth.

The argument is not provably false. But it is almost surely not true, raising the possibility that another motive is at work here, that what the “permit reform” advocates really want to do is “stick it to the hippies.”

Or to put it more responsibly, some Vermonters are still so bitter about losing the fight over the passage of Act 250, 40 years ago, and some other environmental laws since, that they want revenge. If not to repeal the law (a political impossibility) at least to weaken it.

This is not a sentiment confined to the right side of the ideological spectrum. Some feminists still (metaphorically speaking) froth at the mouth when reminded of the failure of the Equal Right Amendment 30 years ago.

But what is the foundation for concluding that Act 250 and the other environmental rules have not suppressed Vermont’s economy?

A good question with a simple answer: Vermont’s economy has not been suppressed.

By almost every measurement, the state’s economy has grown as fast as or faster than the economies of its neighboring states.  In the last 40 years, Vermont’s per capita income, once far behind the national median, has almost caught up with it.  The state now ranks 23^rd in personal income per capita.

The most recent statistics from the Bureau of Economic Analysis show that Vermont’s economy grew by 1.7 percent in 2008, faster than the country as a whole, faster than the New England region, faster than the rest of the Northeast, faster than the South or the Great Lakes, and just as fast as the Southwest.

And they got oil.

Furthermore, there are no data – none – indicating that Vermont’s permitting process prevents or even much delays development projects not likely to harm the environment.

According to a recent report by the Natural Resources Board, last year 82 percent of 380 Act 250 applications were approved without a hearing. Decisions on almost two thirds of all applications were issued within 60 days, and 81 percent were issued within 120 days.

Five, or 1.2 percent of the applications, were denied a permit.

But what about the applications that never get filed because the developer finds the process daunting or distasteful or expensive?

Well, one cannot prove a negative. But look at it this way: a smart developer seeing an opportunity to make a profit will file the application even if filing it is a pain in the neck.

Unless, of course, the developer is not sure the project will meet the guidelines. In that case, the law is working exactly as intended, stopping the environmentally damaging projects while allowing the vast majority of proposals to proceed.

This doesn’t mean that a developer has never given up on a project because of the permitting process. No doubt a few have. But it makes no difference. The site the developer was considering is still there.  Another developer will come along with another project.

None of this means that the permitting system can’t be improved. Anything can be improved, especially government bureaucracies, which often move at all deliberate dawdling. Nor is it intended to absolve  the other side of this discussion–the environmentalists–of their own tribal hostilities.

But next time someone says Vermont will go broke unless it does something about its environmental permitting system, remember that some folks have been saying this for the last 40 years, during which Vermont has gotten richer. Whoever spreads that message probably is less interested in prosperity than in sticking it to the hippies.