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by Ken Ward Jr., Mountain State Spotlight, and Alex Mierjeski, ProPublica, with data analysis by Scott Pham for ProPublica

This article was produced for ProPublica’s Local Reporting Network in partnership with Mountain State Spotlight. Sign up for Dispatches to get stories like this one as soon as they are published.

Whenever a hard rain fell on Harlan County, Kentucky, the mud, rocks and debris from the Foresters No. 25 mine pounded down the hillside into the community of Wallins Creek.

Local residents repeatedly complained about washed-out culverts and mud in their yards. Time after time, county work crews came out after a heavy rain to repair Camp Creek Road, a water line that runs alongside it and a local bridge. The strip mine’s owner, Blackjewel, fixed some problems, but when the rains came again, so did the muddy flooding.

Amber Combs, who lived down the hill from Foresters, recalled a day in August 2017 when "the water was rushing down and the yard was a muddy slush pond. It was literally like a river around my house." Combs complained to Kentucky regulators, who fined Blackjewel $1,300, which it never paid. Overall, under Blackjewel’s ownership, Foresters would run up 17 violations and more than $600,000 in unpaid fines.

Runoff from Blackjewel’s Foresters No. 25 mine damaged a road in Wallins Creek, Kentucky, in 2020. (Silas Walker/Lexington Herald-Leader)

Founded in 2008 by West Virginia native Jeff Hoops, Blackjewel grew in just a decade to become the sixth-largest coal producer in the U.S., partly by accumulating mines like Foresters that had gone bankrupt. By 2018, it boasted more than 500 mining permits in Kentucky, Virginia, West Virginia and Wyoming. Then, in July 2019, Blackjewel stunned the industry by declaring bankruptcy, with claims against it later estimated at $7.5 billion.

That December, environmental groups where Blackjewel operated warned the bankruptcy judge that, while he was focusing on what they called the company’s “significant financial mismanagement,” he should also be aware of “severe environmental mismanagement problems.”

“Reclamation work, water treatment, and other expenses related to environmental compliance should be approved and prioritized” in the bankruptcy case, the environmental advocates wrote.

Kentucky regulators agreed. But, citing longstanding case law, the judge rejected their request. Instead, bankruptcy trustees began divvying up the company’s assets among preferred creditors such as banks and hedge funds. Problems at Foresters and other Blackjewel sites persisted. By mid-2020, there were more than 600 outstanding violations of state mining and reclamation standards at the company’s mines in Kentucky, including 450 since the bankruptcy filing. On top of that, regulators had cited Blackjewel mines for more than 13,000 violations of Kentucky water quality rules, mostly for failing to monitor pollution discharges.

The Blackjewel case, still unresolved and nearing its fourth anniversary this July, highlights the environmental toll of what has become a central feature of the coal industry’s business strategy: bankruptcy. Over the past decade, Blackjewel and other coal companies have found two ways to use bankruptcy to their advantage. First, they expanded their holdings by acquiring other companies’ bankrupt mines, which they hoped would turn a temporary profit during upticks in coal prices and production within the industry’s long-term decline.

Then they declared bankruptcy themselves, entering an arena where they didn’t have to pay all of their debts, and where environmental liabilities took a back seat to banks and other financial creditors. As more coal companies busted, hundreds of mines cycled through repeated bankruptcies. Some, like Foresters, are no longer producing coal, yet they continue to pollute their communities.

Mounds of coal from a Harlan County strip mine stand along Route 119 in Totz, Kentucky, on Nov. 7, 2013. (Luke Sharett/Bloomberg via Getty Images)

A first-of-its-kind analysis by ProPublica and Mountain State Spotlight has documented that mines that have gone through multiple bankruptcies also tend to create more environmental damage. By combining data from federal bankruptcy court filings and state regulatory records, we identified mining permits that have been through more than one bankruptcy and compared the number of environmental violations they’d accrued to violations for mines that had not been through bankruptcy.

We found that the median number of environmental violations for surface and underground mines that had been through multiple bankruptcies between 2012 and 2022 in Kentucky was almost twice the median number for mines that had not, and 40% higher in West Virginia. Blackjewel mines in Kentucky that have gone through multiple bankruptcies had more than twice as many violations as the state median for nonbankrupt mines. Our analysis could not determine if bankruptcy caused the environmental violations or was simply associated with them. Read about our methodology here.

The analysis suggests that the bankruptcy system is “keeping mines alive that are not viable and that are struggling to remain in compliance with environmental laws,” said University of Chicago law professor Josh Macey, co-author of a 2019 study on coal bankruptcies.

Blackjewel’s founder, Hoops, epitomizes how the story of the coal industry and its barons has become inseparable from bankruptcy. He built his empire on bankrupt mines. Then, as Blackjewel’s liabilities mounted, he began seeking new vistas. In the months before Blackjewel’s bankruptcy, according to court records, he transferred tens of millions of dollars into another company that is building a resort in his native West Virginia, part of a broader effort he has described as a noncoal empire he can leave to his children.

Hoops, who declined requests for an in-person or phone interview, said in emailed answers to questions that he didn’t intend for Blackjewel to go bankrupt and that creditors forced him into it. “The model was never to bankrupt the company,” he wrote. “In no way have I benefited from the system.” He added, “I will not recover a cent of my valid claims.” Hoops said that Blackjewel complied with environmental laws and that when violations were issued, it took steps to address them.

Before his bankrupt company left a legacy of mud-shrouded roads and polluted streams, Jeff Hoops was a local hero. He rose from a dysfunctional family and a menial job in the West Virginia coalfields to create a regional economic engine and become a philanthropic pillar of his community.

He and his wife, Patricia Hoops, were all smiles on the front page of the Herald-Dispatch of Huntington, West Virginia, in April 2014 when the newspaper named him its “Citizen of the Year.” The article recounted Hoops’ charity work close to home — a residence hall at Appalachian Bible College in Mount Hope, an indoor football practice facility at the University of Pikeville in Kentucky — and halfway around the world: distributing Bibles in Russia, financing construction of an orphanage in India, running a hotel for missionaries in the Dominican Republic. The children’s hospital in Huntington was named for him, thanks to a $3 million gift. So was a local soccer facility, after what the paper called a “generous donation.”

Jeff Hoops receives the Huntington Herald-Dispatch’s Citizen of the Year award in June 2014, at the Huntington Museum of Art in West Virginia. (Bishop Nash/The Herald-Dispatch via AP)

Despite his wealth and success, Hoops remained the modest and deeply religious man that his friends and neighbors had always known. As a major donor to Marshall University’s Thundering Herd athletic program, he would rate a perch in a luxury box at the stadium. But he said he prefers to sit in the stands, where he can feel the crowd’s energy and be closer to the action.

“I’ve invited him into the box but he says, ‘No, I’m okay,'” said John Sutherland, executive director of Marshall's Big Green Scholarship Foundation.

When Sutherland wants to talk Marshall sports with Hoops, they meet at Shonet’s Country Cafe, a family diner in Milton, West Virginia, for scrambled eggs and sausage, and sometimes a slice of pie.

Born in 1956, Hoops grew up in Bluefield, deep in southern West Virginia along the Virginia border. Bluefield then had 20,000 residents; it counts less than half that many today. Historically, it was a financial hub and railroad center for the coal industry. Now, it promotes itself as “Nature's Air-Conditioned City” (elevation 2,611), and the local chamber of commerce gives away cold lemonade whenever a summer day hits 90 degrees.

Hoops was the second oldest of five children of Roy Hoops, who worked as a clerk for the Norfolk & Southern Railroad, and Lucy Walker. Roy’s drinking, infidelity and physical abuse of Lucy strained the family, according to court records. Lucy filed for protective orders and divorce several times. When Roy promised to change his behavior, they reconciled.

“Certainly my childhood had its challenges, as my father’s life was controlled by alcohol,” Hoops said.

Hoops was a striver. He sang in the youth chorus at church and made the Bluefield High basketball team as a sophomore despite standing 5-feet-1-inch tall. He sprouted to what he called “a towering 5-8” by 1974, when he graduated from Bluefield and married his high school sweetheart, Patricia Johnson, a week later. He wanted to work right away, but he was only 17, and the minimum age in the coal industry was 18. So he altered his birth certificate and found a job running parts in an underground mine, he said.

Hoops in his 1973 high school yearbook (Bluefield High School via Ancestry.com)

In 1975, Hoops joined the engineering department of a mining company, doing surveying and designing ventilation plans. He began going to college at night, eventually earning associate’s and master’s degrees and an executive MBA. Within a decade of high school, he became a top corporate engineer and then vice president of operations for United Coal, which became part of Arch Coal. After leaving Arch in the late 1990s, Hoops established and sold a series of coal companies. A former associate described Hoops as a workaholic driven by a competitive streak. “The joy of his life is coming out on top of a business deal,” the former associate said.

Hoops’ parents divorced in 1985, remarried in 1986 and divorced again in 1991. Roy retired from the railroad and owned an Exxon gas station from 1983 to 2002. On his deathbed in 2014, he called his son to apologize. “I forgave him, told him I loved him, and told him the most important thing was for him to make peace with God,” Jeff Hoops recalled.

When Hoops was growing up, coal was the most powerful business and political player in places like southern West Virginia and eastern Kentucky. But then, buffeted by skyrocketing natural gas production, cheaper renewable energy prices and efforts to reduce greenhouse gas emissions, the industry began to founder.

Makers of everything from asbestos to opioids have used bankruptcy to avoid paying for damage they caused, but the sheer volume of coal bankruptcies outpaced any other sector. At least 60 coal companies went bankrupt between 2012 and 2022, including some of the biggest in the country. The environmental group Appalachian Voices warned in July 2021 that a wave of bankruptcies could leave 633,000 acres of coal mines in the eastern U.S. in need of cleanup, eroding the ability of communities to rebuild economically.

In theory, bankruptcy doesn’t exempt a company from its responsibility to preserve the environment. The 1977 Surface Mining Control and Reclamation Act requires coal companies to clean up damage as they mine. When mining is over, the land must be put back to “a condition capable of supporting the uses which it was capable of supporting prior to any mining.”

That’s not how it generally works in practice. Coal companies often fall behind on so-called mine reclamation and, with obligations also mounting for worker pensions and health benefits, file for bankruptcy protection. They lay off employees at mines that are no longer productive or profitable, ditch pension and health care liabilities and avoid paying for environmental damages.

For example, coal giants Peabody Energy and Arch Coal created a third company, Patriot Coal, and spun off their mines with environmental problems and pension obligations into it. All three companies eventually went bankrupt, ducking a combined $2.6 billion in liabilities, according to Macey, the University of Chicago law professor. Many of these mines have changed hands since then but still have not been reclaimed.

“Bankrupt coal companies dump their mine cleanup obligations onto communities and taxpayers who simply don’t have the money to pick up the tab,” said Peter Morgan, a Sierra Club lawyer who has tracked coal bankruptcies around the country.

The purpose of bankruptcy is to give desperate people and companies time and relief from creditors so they can get back on their feet. But not all creditors are treated equally. Bankruptcy law gives secured creditors such as banks, law firms, the Internal Revenue Service and equipment suppliers — but not environmental costs or fines — priority for payment.

“Bankruptcy courts are not doing enough to stop conduct that allows coal companies to get out of their environmental responsibilities,” Macey said.

There’s a potential backstop to pay for environmental cleanup: reclamation bonds. Federal law requires coal companies to post these bonds to receive mining permits, as a sort of insurance. The amount that companies are required to put up varies from state to state; in West Virginia, it can be as much as $5,000 per acre of the permit. To secure the bonds, companies pay a surety firm a one-time fee — typically 20% to 50% of the face value, according to Hoops. If a mining company goes belly up, state regulators can revoke its permits and use the bond money to clean up whatever mess is left. Money from forfeited bonds, sometimes along with other revenue such as environmental penalties or coal production fees, goes into state reclamation funds to restore abandoned mine sites.

But the required bond amounts often aren’t enough to cover all potential costs. Cleanup costs have soared, partly due to larger surface mines that blew up or chopped off entire mountaintops, and partly because modern studies have increasingly identified water pollutants requiring lengthy and expensive treatment. According to a 2021 legislative audit, West Virginia’s reclamation bonds have covered only one-tenth of cleanup costs. Separately, the Appalachian Voices analysis projected cleanup costs in West Virginia alone as high as $3.5 billion.

As a result, state officials are reluctant to revoke permits and take on the financial responsibility for cleanup. What often ensues instead is a game of musical mines. Knowing that they won’t end up on the hook for reclamation, other coal companies buy mines out of bankruptcy — and then often go bankrupt themselves.

The ProPublica analysis identified 2,030 mines in Kentucky and West Virginia that have been through bankruptcy since 2012 — more than a third of all coal mines in those states. Of the bankrupt mines, 491, or 24%, have gone through more than one bankruptcy.

Of the 210 bankrupt Blackjewel mines in our database, including 197 in Kentucky and 13 in West Virginia, almost half have gone through at least one other bankruptcy. The vast majority of those — 101 of 103 — are in Kentucky and had a median of 16 environmental violations, more than twice the median for nonbankrupt mines in that state.

Since Blackjewel went bust in 2019, more than 100 of its Kentucky permits have been sold out of bankruptcy — many for the second time, according to court filings. Lawyers jokingly call the second round of bankruptcy “Chapter 22,” or Chapter 11 twice over.

In 1999, Hoops went out on his own with just one mine, the Hunts Branch Mine in Phelps, Kentucky. In 2008, he founded Revelation Energy. It grew, and Hoops changed the name to Blackjewel in 2017 as part of what he called “a strategic restructuring.” The plan was to shift away from providing steam coal for power plants and toward producing more metallurgical coal for steel mills, a market where prices were increasing.

Blackjewel assembled mines from the bankruptcies of James River Coal, Alpha Natural Resources, Arch Coal and others. Alpha paid Hoops $200 million in cash and more than $100 million in installments to take about 250 of its mining permits. Every acquisition “was based on a detailed economic model that demonstrated the mines could make money even in a down market,” Hoops said.

Arch Coal strip mines in Letcher County, Kentucky, in 2013 (Charles Bertram/Lexington Herald-Leader/Tribune News Service via Getty Images)

The strategy, Hoops said, was working. Blackjewel expanded from central Appalachia to Wyoming’s Powder River Basin. It employed 1,700 miners and boasted 1.2 billion tons of coal available for mining, enough to keep going for many decades.

But in April 2019, two bankruptcy experts questioned whether Hoops would be able to honor his companies’ environmental obligations.

“Rather, his businesses have begun to exhibit a pattern,” Macey and Jackson Salovaara wrote in “Bankruptcy as Bailout,” an article in the Stanford Law Review. “Hoops takes over abandoned mines, receives cash from the company that wants to get rid of them, and then fails to actually remediate the environmental problems.”

Three months later, Blackjewel declared bankruptcy. It cited a roof collapse at a Virginia mine, a spike in workers’ compensation costs and flooding that prevented railroads from moving coal out of Wyoming. It also blamed adverse market conditions, including the rise of cheap natural gas, greater use of renewable energy and increased regulatory pressures.

Energy industry researcher Clark Williams-Derry pointed instead to questionable business decisions, such as Blackjewel locking in prices for steel-making coal just before prices increased sharply. “The signs of financial distress have been evident to anyone who cared to look,” he wrote in a blog post titled, “Seven Bombshells in the Blackjewel Bankruptcy.” Hoops said that lenders forced the timing of the price locks on Blackjewel, costing the company millions of dollars.

Hoops said that key lenders — United Bank and the investment firm Riverstone Holdings — cut off credit for Blackjewel, forcing the firm into Chapter 11. “They had managed to get my funds put on hold before and during the bankruptcy, as I would have never allowed the company to file but for their actions,” Hoops said. United and Riverstone declined comment.

In a press release, Hoops portrayed the bankruptcy as part of an effort to “position the company for long-term success.” But it didn’t feel that way to many Blackjewel miners. Some mines closed, sending workers home without any notice, and without their most recent paychecks. A mine in Wyoming was on fire, and Blackjewel was scrambling to pay employees to put it out.

Joseph Fox, who worked at a Blackjewel coal preparation plant in Virginia, had just taken his family on vacation to Myrtle Beach, South Carolina. Then, his paycheck bounced. Fox, his wife and their son and two daughters cut their beach trip short.

“They’re kids. All they wanted was a vacation,” Fox recalled. “They didn’t understand, and you don’t want to be telling them your paycheck bounced.”

In Kentucky, a group of miners who missed paychecks blocked a Blackjewel coal train in Harlan County. Hoops said that all of the miners have been paid. Still, they filed claims and lawsuits alleging that they were laid off without due notice.

Unpaid Blackjewel coal miners, who lost their jobs because of the bankruptcy, block the railroad tracks that lead to the mine where they used to work in Cumberland, Kentucky, in 2019. (Photo by Scott Olson/Getty Images)

The bankruptcy trustee settled the lawsuits with a promise that miners would be bumped up in the ranking of creditors. But court documents suggest there will be little money to go around, maybe only enough to pay the lawyers, accountants and consultants managing the liquidation, lawyers monitoring the case said.

By the time of the bankruptcy, Hoops was already preparing for a future outside coal. He set up a family holding company, Clearwater Investments, with his three sons as trustees. Its purpose was to “leave a financial dynasty to Jeff and Patricia’s heirs by investing in several businesses as well as by collecting royalties on various investment properties,” said an internal “executive overview” filed in the bankruptcy case.

Some of the listed holdings retain a connection to coal, including a trucking firm and a mining equipment sales service. Others don’t, like a wheelchair and brace sales firm with sales in 2018 of $8.7 million.

In January 2019, Hoops sent the Clearwater overview to his sons, Jeffrey Jr., Jeremy and Joshua. “I hope by the end of this year to have a nice package together that shows everything we own as it is a vast company now,” he wrote. “Love you guys …. Dad.”

It didn’t take long for Clearwater to surface in the Blackjewel case.

Creditors discovered that in the six months prior to Blackjewel’s bankruptcy filing, as the company was becoming increasingly insolvent, Hoops had transferred at least $34 million from Blackjewel to Clearwater.

Hoops said that these transfers were appropriate because they represented partial repayment of $51.5 million in loans that he and his family had made to Blackjewel since January 2019 via a revolving line of credit. But this explanation didn’t satisfy creditors, who accused him of violating bankruptcy rules by putting himself at the head of the line.

It was a “sweetheart deal,” then-bankruptcy trustee David Bissett told the judge during a July 2019 hearing. Hoops was “protecting his own self-interest” rather than Blackjewel’s employees or creditors, Bissett said.

Lenders were so outraged at Hoops’ money transfer that, as a condition for providing Blackjewel with emergency financing, they forced Hoops to step down as an officer of the company. They also blocked any Hoops family members from taking a management role.

In a farewell email to employees, Hoops defended himself. “No one is hurting more than me over what has occurred,” he wrote. “There has not been one cent taken out of the mining company, the exact opposite I have loaned more money to try to get this company through these difficult times.”

The email continued: “I accept responsibility for being unable to lead this company through these difficult times.” Hoops wrote, “I know in my heart how hard I fought for each of you and this company and to have people threaten me and say I took money out of this company for other projects hurts more than words can express.”

The liquidation trustee sued Hoops and seven family companies, including Clearwater, over the money he shifted from Blackjewel to them in the months before the bankruptcy.

Last August, the trustee settled these cases. Few details were made public, except that as part of the deal Hoops dropped a $2.6 million claim for money he argued Blackjewel owed him.

Hoops said only that the lawsuit was “resolved amicably.” The liquidation trustee declined comment.

Another bankruptcy court fight focused on the Foresters mine.

This wasn’t the mine’s first brush with bankruptcy. U.S. Coal, its original owner, went bankrupt in June 2014. By the time Hoops took over the permit in 2016, the mine was down to fewer than 20 workers, and production was a third of its 2013 peak of 550,000 tons. In 2018, it stopped producing coal altogether, and had only three employees, according to the federal Mine Safety and Health Administration.

A year into Blackjewel’s bankruptcy, a flood from Foresters eroded part of a local road and damaged a drinking water line. The rest of Blackjewel’s now-idled operations across Kentucky were also polluting their surroundings. Alarmed by the worsening conditions, the state’s Energy and Environment Cabinet sought the court’s help. In June 2020, the environmental regulator asked the judge to order Blackjewel’strustee to bring all of the company’s permits into compliance with mining standards and pollution rules.

In a court filing, agency officials warned that Blackjewel sites not only weren’t being restored to pre-mining conditions but weren’t even being maintained to prevent contaminated water from pouring downstream into water supplies. The agency warned of flooded holding ponds being at high risk of “discharging metals and suspended solids into adjacent rivers and streams” and of landslides “that could endanger the lives and the property of residences below.”

In September 2020, a week after state inspectors again cited Foresters for erosion and drainage, U.S. Bankruptcy Judge Benjamin A. Kahn held a hearing on the regulators’ complaints. But the concerns about environmental fallout ran smack into a wall of decades-old law. While noting that crews were already responding at Foresters and other sites, the bankruptcy trustee argued that legal precedent gave the judge little scope to intervene. The judge agreed. Citing U.S. Supreme Court and federal appeals court decisions, Kahn instructed the trustee to clean up only "imminent” threats to public safety, not “speculative” threats.

Some problems at Foresters met this standard, and Kahn ordered them fixed. Still, violations for muddy runoff and sediment from holding ponds have persisted there.

Kahn deferred action at dozens of other Blackjewel sites with hundreds of environmental violations that he deemed less severe. Kahn’s analysis didn’t address the risk that if bankrupt mining companies can avoid routine maintenance and reclamation, speculative threats can turn imminent in a hurry. Once the judge’s criteria are met, “it’s too late,” said Lena Seward, lawyer for the Kentucky state regulatory agency. “The road is washed out.”

An unreclaimed strip mine on a mountaintop along the Kentucky-Virginia border in October 2014 (David Goldman/AP)

Kentucky also tried to forfeit bonds for some Blackjewel mines so that the state could begin cleanup. But that’s tied up in a legal challenge by the surety company, which contends that it has the right to restore the sites itself instead of losing the bond money. For other mines, the state and the bond company are still working out terms for cleanup.

Meanwhile, the companies that bought most of the mines haven’t gotten very far with cleanup, sometimes because the state blocked final approval of the purchases due to unresolved violations at mines they already owned. Kentucky regulators acknowledged in an email that they “would like to have seen a faster transfer applications/reclamation process.”

As it acquired mines, Blackjewel posted a total of more than $500 million in reclamation bonds in four states. But that sum may not be enough. State regulators warned the bankruptcy judge in late 2020 that, for the 32 Blackjewel mines without buyers, conditions had deteriorated so much that cleanup costs were estimated at $20 million more than the bonds would cover.

Hoops disputed that the bond amounts were inadequate. The regulators were “wrong,” he said, but he did not elaborate.

In February 2021, the Kentucky cabinet went back to the judge. A Blackjewel mine was showing severe erosion, with sediment ponds so full that they posed what an inspector called “an immediate danger to the public and environment downstream.”

Kahn ruled against the regulator again.

“The violations just continue to mount,” said Kentucky attorney Mary Varson Cromer, who represents coalfield residents in the Blackjewel case. “The whole system is not functioning, and it ends up costing more to reclaim, and it’s the residents and the community that are at risk.”

The game of musical mines is slowing down. Across Appalachia, coal production is forecast to drop more than 20 percent over the next decade. In a market where coal production and prices continue to drop, there’s little demand for Blackjewel’s coal. Almost all its mines in Kentucky, including Foresters, have been sitting idle for four years.

Blackjewel’s case has also bogged down in paperwork, or the lack of it. “The books and records inherited by the trust were woefully incomplete (and largely nonexistent in some instances),” the trustee complained in March 2023, explaining yet another delay.

With Blackjewel behind him, Hoops is looking to the future. Clearwater is building a resort in Milton, where Hoops lives. The project is meant to invoke the splendor of ancient Rome. Hoops named it the Grand Patrician Resort. Patrician has a double meaning: It refers to the ruling class of ancient Rome and also honors Hoops’ wife, Patricia.

Patricia and Jeff Hoops speak at a press conference announcing the Grand Patrician Resort in Milton, West Virginia. (Sholten Singer/The Herald-Dispatch via AP)

Hoops wept as he announced the resort project, which is located on the site of a former children’s hospital. His aunt and his brother-in-law had both been patients there, he told a local newspaper. “I get emotional,” he said. “To see God take something that was used to treat kids that were hurting, a lot of them crippled for life, he always takes something bad and turns it for good.”

The resort’s golf course had a soft opening last August. Construction of a luxury hotel continues. Local press accounts say the site will include a 400-seat steakhouse, a wedding chapel and ballroom and two indoor pools. A second phase is expected to feature another hotel, equestrian trails and a 3,500-seat outdoor arena modeled on the Roman Colosseum. This month, Hoops hosted a ribbon-cutting ceremony for a new hiking trail at the resort.

Even though Hoops left Blackjewel four years ago, one of his family-run businesses is still connected to its mines. The insurance company holding the reclamation bonds for the Blackjewel mines that weren’t bought out of bankruptcy has hired Lexington Coal to reclaim them. Its manager is one of Hoops’ sons. Lexington Coal “has not benefited in any way economically” from the reclamation contract, Hoops said.

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Joel Jacobs and John Templon contributed data reporting.

by Ryan Gabrielson

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One morning in September 2017, Judge Christopher Plourd opened an unusual hearing at the Imperial County Superior Courthouse, a half-hour north of the California-Mexico border. It involved three illegal drug possession cases that were unrelated to one another.

Each of the cases had relied on the results of chemical field test kits used by corrections officers at nearby state prisons. The kits indicated crumbs and shreds of paper that guards found on the inmates contained heroin and amphetamine. But a state forensic laboratory later analyzed the debris utilizing a far more reliable test and found no trace of illegal drugs. The defendants were factually innocent.

Rather than simply close the cases, defense attorneys asked the court to determine whether the NIK Public Safety brand field tests used in California’s prisons were too unreliable to show to grand jurors. In effect, they put on trial the evidence most commonly used to secure convictions in drug cases in the U.S.

Plourd ruled in early 2018 that the test kit “does not meet a scientific admissibility standard” and therefore “does not support the grand jury indictment.”

In other words, the tests were guilty.

The Imperial County cases are believed to be the first time a judge blocked field tests from contributing to indictments. In the years since, defendants and inmates in multiple states have scored additional legal victories against agencies using the kits and the companies selling them.

“For years, these tests have had this unjustified scientific veneer,” said Des Walsh, founder of the Roadside Drug Test Innocence Alliance, which advocates for the use of more accurate testing technology. “Finally, we believe the tide is turning with this dawning awareness of the unacceptably high rate of false positives.”

In a 2016 series of stories, ProPublica documented law enforcement’s widespread use of field tests to make arrests and secure convictions despite serious flaws. No government agency regulates their use. The officers who perform the tests to make arrests on the street often have little or no training in their use.

Since then, the new court rulings have contributed to a growing movement to change the way drug cases are prosecuted in America. Courts across the country have long known that field tests are error prone and require forensic laboratories to confirm the results for jury trials. However, nearly all drug convictions in the U.S. come by plea deals during initial hearings, where chemical kits are the primary evidence of guilt.

Courts have overturned 131 drug convictions in the past 10 years after laboratory analysis determined the alleged drugs were legal substances, according to a database maintained by the National Registry of Exonerations. A large majority of those wrongful convictions originated in Harris County, Texas, where the crime lab analyzed its backlog of suspected drugs from closed cases and discovered the evidence in hundreds of convictions did not contain drugs. The defendants in those cases had pleaded guilty at preliminary hearings.

The tests are small plastic pouches holding vials of chemicals. They’re cheap, roughly $2 apiece, and easy to use. Officers open the pouch and add the substance to be tested. The tests are designed to produce specific colors when mixed with drugs like heroin, cocaine or methamphetamine. But dozens of items, including foods and household cleaners, trigger similar reactions.

During the Imperial County hearing, an executive at the Safariland Group, the nation’s largest field test manufacturer, testified the company keeps a list of more than 50 legal substances that cause positive results. Court records show chocolate sometimes turns the liquid a similar shade of green as heroin in the NIK kits.

Safariland Group did not respond to a request for comment.

More evidence of the tests’ inaccuracy came in October 2021, when former inmates filed a class-action lawsuit against the Massachusetts Department of Correction. The prisons used test kits on all incoming mail, including letters from attorneys. When correspondence tested positive, inmates were sometimes put in solitary confinement and lost eligibility for parole. The lawsuit alleged that the prison system’s use of field tests violated the inmates’ right to due process.

Court records show that between August 2019 and August 2020, lab analysis found that 38% of the inmate mail that tested positive did not contain the alleged drug. Shortly after the inmates filed their lawsuit, Suffolk County Superior Court Judge Brian David ordered the Correction Department to immediately stop using the chemical kits until the litigation was finished.

In the order, David characterized the NARK II brand kits used in Massachusetts’ prisons as “arbitrary and unlawful guesswork.”

The inmates are also suing Sirchie Acquisition Co., manufacturer of the NARK II kits, and Premier Biotech, a retailer that sells them, in federal court for negligence, alleging the companies misrepresented the kits’ risk of false positives and provided inaccurate instructions to the state prisons. In September, a federal judge ruled that field test sellers can potentially be held liable for harm caused by erroneous results. Both of the lawsuits are ongoing.

Sirchie did not respond to ProPublica’s request for comment. Sirchie, Premier Biotech and the Massachusetts Correction Department have denied the inmates’ claims in court records.

Compounding field tests’ inherent flaws, police officers and prison guards rarely understand how the kits work, according to court records and interviews.

During the hearing in Imperial County, multiple guards testified about the training they received on the field tests and how they described the results to grand jurors. David Eustaquio, an officer with the California Department of Corrections and Rehabilitation, told the court he had used the chemical kits more than 200 times during his career, according to transcripts. He said he’d never had to explain the results beyond saying the color change meant the test was positive for an illegal drug.

“Do you know what the accuracy rate is for these NIK tests?” Kelly Jafine, an Imperial County deputy public defender, asked Eustaquio.

“No, I do not,” he said.

Jafine then asked if the prison had taught him about false positive results during training on the chemical kits.

“No,” Eustaquio answered, “I was not.”

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by Kathleen Sharp for ProPublica

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Stepping into the Metropolitan Museum of Art, Shyanne Beatty was eager to view the Native American works that art collectors Charles and Valerie Diker had been accumulating for nearly half a century. But as she entered the museum’s American Wing that day in 2018, her excitement turned to shock as two wooden masks came into view.

Beatty, an Alaska Native, had worked on a radio documentary about the two Alutiiq objects and how they and others like them had been plundered from tribal land about 150 years ago. Now, the masks were on display in the biggest and most esteemed art museum in the Western Hemisphere. “It was super shocking to me,” she said.

The Met’s ownership history for the masks, also known as provenance, omits more than a century of their whereabouts. Historians say the masks were taken in 1871. But the museum’s timeline doesn’t start until 2003, when the Dikers bought them from a collector. Ownership was transferred to the Met in 2017.

The Dikers, who have amassed one of the most significant private collections of Native American works, have been donating or lending objects to the Met since 1993. In 2017, as other institutions grappled with returning colonial-era spoils, the Met announced the Dikers’ gift of another 91 Native American works.

A ProPublica review of records the museum has posted online found that only 15% of the 139 works donated or loaned by the Dikers over the years have solid or complete ownership histories, with some lacking any provenance at all. Most either have no histories listed, leave gaps in ownership ranging from 200 to 2,000 years or identify previous owners in such vague terms as an “English gentleman” and “a family in Scotland.”

Charles and Valerie Diker attend the 2017 Guggenheim International Gala in New York City. (Evan Agostini/Invision/AP)

Experts say a lack of documented histories is a red flag that objects could have been stolen or may be fake.

“That’s a lot of missing documentation, which is a problem,” said Kelley Hays-Gilpin, a curator at the Museum of Northern Arizona. The Arizona museum has documented about 80% of its collection, as has the Brooklyn Museum and other institutions that are considered less prestigious than the Met but that have substantial Native American collections. Some museums, such as one at the University of Denver, decline gifts that have poor provenance.

For centuries, Native Americans have decried the looting of the graves of their ancestors by pothunters and scientists and the display of their remains and belongings in museums. In 1990, Congress passed the Native American Graves Protection and Repatriation Act to facilitate the return of such items and human remains to the appropriate tribes, which the law declares are their rightful owners.

NAGPRA requires federally funded museums to notify a tribe within six months of receiving their holdings by contacting and consulting with that tribe’s chosen representative, often known as a Tribal Historic Preservation Officer, and giving them an opportunity to reclaim their objects. The law also mandates that museums file a copy of those notices with the National Park Service.

These interactions provide an opportunity for institutions to learn more about the history of objects, whether they are authentic or might have been stolen and if it’s appropriate to display them. But as ProPublica has reported this year, museums have often delayed such discussions while keeping human remains and objects that the law says should be returned.

Some pieces in the Diker Collection are sacred, such as a shaman’s rattle made of human or horse hair; some are funereal and were buried with the dead. (The Met recently returned the rattle to the Dikers, and there are “ongoing consultations” related to some other items, according to the museum.)

“Most of these items could only have ended up in private hands through trafficking and looting,” said Shannon O’Loughlin, director of the Association on American Indian Affairs, which advocates for tribal sovereignty and the protection of Native American cultures.

“The way that so many of these things wound up in museums is horrible,” said Rosita Worl, president of Sealaska Heritage and a Tlingit citizen. New York law goes by the principle of once stolen, always stolen, and she said the pieces are tainted. “The rightful thing is for these things to be returned home.”

Initially, many of the objects were loans; due to a loophole in NAGPRA, this meant the museum did not have to report them to tribes or to the NPS. To date, the museum has accepted the transfer of 77 of the promised gifts from the Diker Collection, according to the Met.

But ProPublica found that after assuming ownership the Met for years failed to consult the necessary tribal officials in a timely and consistent manner about objects in its collections. A year passed before the museum contacted someone at the Alutiiq tribe to inform them that it had their masks. (The Met declined to name the person it contacted.) Four years later, the NPS posted summaries that the Met had sent in September 2022 to 63 tribes connected to objects in the Diker Collection. The Met did so after ProPublica asked the museum about the masks and other sacred and culturally sensitive items.

All the while, the museum displayed some items with incorrect descriptions and omitted or minimized the wars, occupations, massacres and exploitation that dominated the tribes’ past.

The Met’s descriptions in its displays “are in the land of make-believe,” said Wendy Teeter, the former curator at the Fowler Museum at the University of California, Los Angeles. “The public won’t have a clue as to what a piece really is or how it got there.” This, Teeter said, “perpetuates stereotypes and bias against Native people.”

The Metropolitan Museum of Art’s land acknowledgement plaque

Dan Monroe, who helped draft NAGPRA and is a former director of the Association of Art Museum Directors, said the long delays in notifying tribal representatives and the NPS are a violation of the law: “They have a responsibility to follow the law and are subject to fines if they don’t.”

In a written statement, the museum said: “Although some progress has been made in updating the online catalog information and providing more complete provenance information, we recognize there is still much work to do and that this is an ongoing process that requires relationship building, patience, and great care. This is important work, and it is precisely one of the intentions of the Dikers to have a large, well-resourced institution such as The Met devote the time and scholarship to these Native items.”

The museum also stated that it is misleading to use “complete ownership histories as a standard for judging a collection,” noting that much of the Diker collection has previously been exhibited and researched by other major U.S. museums. “When new information about collection items comes to light, we openly share it (if advised by Indigenous leaders to do so), or remove culturally sensitive items from view as requested.”

Get updates about ProPublica’s investigation into the delayed return of Native American human remains.

During its investigation, ProPublica asked the Met to comment on statements about the collection. Some sources who had made on-the-record statements that were shared with the museum by ProPublica later asked to withdraw their statements. One indicated that they’d been contacted by a Met employee. (The Met said it constantly engages with a wide range of professionals and did not exert any pressure on sources for this story.)

The Dikers declined interview requests. In a written statement to ProPublica, they said: “For nearly 50 years, inspiring appreciation for the arts of Native America has been our greatest passion.” The couple also said that they had assessed “all available information relating to provenance” before acquiring the works.

If a museum can prove it has legal title, meaning that the object’s creator, their descendents or a tribal representative willingly transferred the piece, the museum doesn’t have to return an item. But if a tribal officer requests the return of an item, a museum must comply, unless it can prove it’s part of the chain of ownership, ideally going back to its origin. Complicating matters, thousands of Native American pieces at the Met have been in its collection since 1889, an era when many museums didn’t track the ownership histories of such works.

Questions about the legitimacy of the Met’s ownership of artwork extend beyond its American Wing. As part of a sweeping investigation into the trafficking of antiquities, the Manhattan District Attorney’s office has issued nine warrants over the past five years to seize about three dozen looted artifacts at the Met, as well as computers, memos and other material related to the objects.

Matthew Bogdanos, an assistant district attorney in Manhattan who leads the office’s antiquities trafficking unit, said he and his team found the sales histories of the seized antiquities were either fraudulent, incomplete or nonexistent. The D.A.’s office looked at filing charges for criminal possession of stolen property. “But their actions didn’t cross the threshold of ‘beyond a reasonable doubt,’” Bogdanos told ProPublica, so no charges were filed.

Patricia Marroquin Norby was hired in 2020 as the Met’s first full-time curator of Native American art. (Jeremy Dennis/The New York Times via Redux)

The Met said in its statement that it drafted a new Native American Arts Initiative in 2021 under the guidance of its “first-ever” curator of Native American Art Patricia Marroquin Norby (Purépecha, an indigenous community in Mexico). The initiative, said the museum, includes “creating an advisory committee and hiring a full-time staff position that will collaboratively focus on NAGPRA responsibilities and further prioritize the building of ongoing partnerships as well as the strengthening of community collaborations.” In March, the Met said it was also hiring a Native American art researcher whose responsibilities will include “some provenance research.”

What follows are the stories behind several Indigenous pieces that the Dikers have loaned or given to the Met. ProPublica interviewed experts and cultural officers at the affiliated tribes to learn how some of the Diker Collection objects survived brutality, theft and exploitation, little of which the visitors who pay to see them learn about from the museum.

Alutiiq Masks, 1870

Given to the Met in 2017

Alutiiq triba representatives told ProPublica it is appropriate to show an image of a mask. (The Charles and Valerie Diker Collection of Native American Art)

The two carved masks that Beatty was shocked to see at the exhibit’s opening still hang in the museum. A description of them on the Met’s website says that “spirits communicate with people through whistling: these masks may be the faces of such supernatural beings.”

They may be sacred. But that’s only part of the story.

The Alutiit have lived on the Aleutian Islands in southwest Alaska for 7,500 years. In winter, people would once huddle indoors and create utensils, clothes and ceremonial objects. Using beaver-tooth tools, they would carve wood faces, painting them blue, green and red and adorning them with feathers and fur.

At a preordained time, the Alutiit would don their masks and dance and sing in ritual, said April G.L. Counceller, director of the Alutiiq Museum & Archaeological Repository in Kodiak, Alaska. A lot of the masks’ power was tied to those who had passed, she said: “For other ceremonies, the masks were a way to communicate with spirit helpers.” After the ceremony, people would hide the masks in caves to let the “sky creatures'' rest until the next rite.

In 1740, Russians invaded the area for its sea otter fur. They forced Alutiiq males as young as 12 to hunt and held Alutiiq women as ransom. People died of starvation, disease and abuse. After a century, the sea otter population had nearly collapsed, and the Russians left. The U.S. then arrived and set up schools that punished Native children for speaking their language. By the 1890s, the population of the Alutiit had dropped by 90% to 1,500.

Museums rushed to grab what was left of Alaskan cultures. When a Western Union expedition headed north, the Smithsonian Institution’s assistant manager, Spencer Baird, made sure that 20-year-old William Dall was on board to “salvage” tribal objects. Baird paid Dall $200 a year ($7,000 in today’s dollars) to ship his hoard to the museum. Baird also used “salvagers” on Army expeditions, Navy cutters and other quests, acquiring tens of thousands of pieces. The Met obtained Tsimshian rattles and Tlingit reed pipes from donors around this time.

A reburial ceremony in the Kodiak City Cemetery, where the Sun'aq tribe choose to lay to rest their ancestors. The remains being reburied were repatriated from Michigan State University, returned by the Alaska State Museum or collected from private land where they were unearthed during recent construction. (Courtesy of the Alutiiq Museum)

“Almost everything that wasn’t nailed down or hidden was taken away,” said Worl, the Sealaska Heritage president.

The Met said it has provided “updated summaries to Alaskan Native communities” and “the Tsimshian and other Northwest Coast communities are on our list to receive new collection NAGPRA summaries.”

Alphonse Pinart (National Library of France)

In 1871, 19-year-old Alphonse Pinart of France arrived. He spent months paddling a skin-covered kayak along the 600-mile Kodiak archipelago, stopping at islands where he found caves. Inside those caves, Pinart unearthed graves and helped himself to human remains, funeral items and masks, according to his journals.

That November, he stayed on Kodiak Island and learned the masks were used in Alutiiq rituals; he got to watch some ceremonies and published a paper about his findings.

After six months, he shipped the masks home to Pas-de-Calais and left. Before he died in 1911, he donated 87 artifacts to a small museum in a castle near Calais. They sat forgotten by the Alutiit for seven generations.

The Met’s provenance only lists owners from the past 20 years. The Dikers purchased the two masks in 2003 and donated them to the Met in 2017. The museum filed a summary with the NPS listing them in 2022, five years after the deadline.

The museum stated that in 2023, “it was recommended that the masks remain on view to provide community access.” Tribal members who live where the masks were made must travel 3,500 miles to reach the New York museum.

Apache Quiver and Arrows, 1875

Loaned to the Met in 2018

A White Mountain Apache tribal official told ProPublica the quiver and arrows might be funereal. Out of respect, the full image is not depicted.

In 2019, the Met displayed this bag of arrows with a placard reading: “The painted and beaded patterns on this quiver symbolizes protective sacred powers.”

This description indicates the object is holy and, out of respect, should not be displayed, said Ramon Riley, the cultural resource and NAGPRA representative for the White Mountain Apache Tribe in Arizona. “But I need to see the documents showing how they escaped from their home,” he said, meaning their provenance.

The Met lists no such history. And because the Dikers loaned the quiver set to the Met in 2017 and didn’t transfer title to the museum, the Met wasn’t required to inform tribes that it possessed the item.

For the Met to list the piece merely as “Apache” shows a lack of due diligence, as there are more than 10 Apache tribes. If Met curators had contacted any of those tribes, they might have learned which group created the items. These pieces have a history that should be respected, said Riley: “The set could have been looted or taken at gunpoint.”

After U.S. Army Gen. William Tecumseh Sherman recommended slaughtering buffalo to deny Native Americans a food supply, the number of buffalo killings skyrocketed. Here, buffalo skulls are piled up at a glueworks in Rougeville, Michigan, in 1892. (Burton Historical Collection, Detroit Public Library)

In the 1870s, one of the more ruthless leaders in U.S. military history, Gen. William Tecumseh Sherman, was pursuing the Apaches. During the Civil War, he had burned Atlanta. As commanding general of the Army and director of the Indian Wars, he was using similar scorched-earth methods, including devising the slaughter of 5 million buffalo to starve Native Americans.

Sherman (Mathew Brady Photographs of Civil War-Era Personalities and Scenes/National Archives Catalog)

At the time, the U.S. was planning its first world’s fair: the Centennial International Exhibition of 1876 in Philadelphia. The Smithsonian was asked to create an Indian “artifact” gallery to rival the antiquities in European museums.

In 1873, the Smithsonian’s director, Joseph Henry, wrote Sherman: “We are desirous of procuring large numbers” of Native American “dress, ornament, weapons.” He asked Sherman to tell his soldiers to send “specimens” from the battlefield. At Sherman’s request, Henry paid each uniformed “picker” up to $500 (the equivalent of $14,000 today).

The plan helped produce one of the fair’s more popular exhibits, which included Apache arrows. When the expo closed, Henry’s deputy packedthe collection onto 48 rail cars bound for Washington, D.C.

By 1878, the demand for “Indian” items had grown so large that the Smithsonian asked the public to unearth “American Aboriginal” artifacts from mounds, caves and cemeteries. Soon, the spoils of war and grave robbing filled America’s new museums like the Met, but few items had documentation or provenance.

Ramon Riley, the cultural resource and NAGPRA representative for the White Mountain Apache Tribe (Tomás Karmelo Amaya, special to ProPublica)

Riley learned this while searching for the remains of his clan relative. His ancestor worked as an Army scout, carrying a government-issued rifle and his own bow and arrows. But during a massacre he was arrested for mutiny and hung, said Riley. The scout was buried with his possessions. Days later, his body was dug up and displayed in a cabinet inside Fort Grant, in what was then the Arizona Territory. Eventually, his remains were shipped to the Smithsonian.

Riley doesn’t think his relative’s quiver set was displayed by the Met; he believes that the set in the Diker Collection is a funerary item. “But to people like the Dikers, it’s all art,” he said. “It’s crazy.”

In March, after ProPublica had asked about it, the Met said it had been made aware that the quiver-and-arrow set was “potentially culturally sensitive” and had removed it from public display. The loaned item has not yet been returned to the Dikers.

Lakota "Model Tipi Cover," 1875

Given to the Met in 2018

Rosebud Sioux tribal officials told ProPublica it is appropriate to show an image of the tipi. (The Charles and Valerie Diker Collection of Native American Art)

When the Met displayed this item in 2019, the placard read: “During early reservation life, Plains people created objects such as this for sale to visiting military personnel, government officials” and “missionaries.”

“Sale?” said Peter Gibbs, an archivist in the Rosebud Sioux tribe’s historic preservation office. “The museum has got it wrong.”

Smithsonian Institution assistant manager Spencer Baird paid for the “salvage” of tens of thousands of items. (William Bell/Smithsonian Institution Archives)

What really occurred is that an “Indian Ring” of agents and politicians were taking bribes from people who wanted to do business on reservations. In 1886, the government hired a bankrupt 52-year-old from New York, L.F. Spencer, as an Indian agent.

Spencer arrived during hard times at the Rosebud reservation in what is now South Dakota. The U.S. sought to control the tribe by sending its children to the notorious Carlisle Indian Industrial School in Pennsylvania, where they endured harsh labor and abuse, sometimes leading to their death. The government stopped providing rations to parents who refused to give up their children.

Spencer befriended Spotted Tail Jr., son of Chief Spotted Tail, who held some of the tribe’s communal items, including the painted tipi. After Spotted Tail died in 1888, Spencer claimed the chief had signed an undated will giving Spencer many items, including the “great medicine pipe of the Sioux nation.”

Gibbs believes the will is a fraud. The pipe had been handed down to Spotted Tail by his father and his grandfather. “Junior would never have passed this pipe on to Spencer, nor the tipi,” Gibbs said. Spencer’s dishonesty was so well known that the Indian Rights Association urged the Army to fire him.

Chief Spotted Tail, center, with his sons, enrolled at the Carlisle Indian Industrial School in Pennsylvania (Carlisle Indian School Digital Resource Center)

In 1889, Spencer gathered his haul and left. Back in New York, he lectured to parlor clubs about his “Wild West” exploits, showing off the tipi and other items.

After Spencer died, his daughter, Harriet Lund, bequeathed some of his spoils to relatives and to an unspecified museum. In 1963, Spencer’s granddaughter Vivian Backen sold Spotted Tail’s will and other items to a Denver art dealer, according to Spencer’s descendant Dick Miller. Correspondence between Backen and the Denver art dealer supports that history.

But the Met’s provenance doesn’t list these names. The art dealer sold a tipi from Spencer’s cache to the Denver Art Museum for $500, or about $5,000 today, even though it had mildew rot and patched holes.

In 1965, a curator at the museum sold the tipi. The Met’s record says the buyer was Larry Frank of New Mexico. After Frank died, the Dikers bought it in 1989. In 2018, they gave it to the Met, where it was displayed in pristine condition.

The Met has described it as a souvenir. But Ben Rhodd, the Rosebud Sioux tribe’s then-cultural officer, said it had another purpose entirely. The tipi shows triumphant warriors on horseback, holding up shields that represent their male societies. It was an educational tool meant to instill pride in Lakota children for their relatives’ achievements — and to teach them how to erect a tipi, he said.

“This inaccuracy is the result of a lack of consultation,” Rhodd told ProPublica. “And I think the piece has been looted.”

It’s been five years since the Met accepted this gift, and tribal officials say they still haven’t heard from the museum. The item is no longer on display; the Met said it intends to contact the tribe and file a summary as part of “our ongoing NAGPRA work.”

Hopi “Polacca Polychrome Water Jar” by Nampeyo, 1895

Given to the Met in 2017

Hopi tribal officials told ProPublica it is appropriate to show an image of the jar. (The Charles and Valerie Diker Collection of Native American Art)

“Nampeyo was the first Southwest potter to become recognized by name outside her Hopi community and is renowned for her technical skills and aesthetic sensibility,” states the Met’s website. She was also one of the first Native American women to control her own work by selling directly to buyers.

The Met’s history of the jar is missing dates, but there’s enough documentation to show it was probably obtained legally. It’s an example of a commercial work of art in the Diker Collection that is appropriate to display. (In its statement, the Met said it “recognizes the sensitivity of some items in its historical Native American collection” and as a result is prioritizing the acquisition of “more modern and contemporary works by Indigenous artists.”)

In 1874, Nampeyo was a shy 15-year-old who sometimes wore a traditional manta, a type of shawl. A surveyor snapped her picture, which wound up on ads to lure tourists to the Arizona Territory. Unwittingly, Nampeyo became an iconic image of the Southwest.

Hopi artist Nampeyo holds one of her works of pottery. (Carl Moon/The Miriam and Ira D. Wallach Division of Art, Prints and Photographs: Photography Collection, The New York Public Library.)

It was a mixed blessing, said Leigh Kuwanwisiwma, a former Hopi Tribal Historic Preservation Officer. For centuries, the Hopi have lived on remote mesas that tower more than a mile over the surrounding landscape, allowing them to freely practice their language, religion and culture.

In the 1880s, however, a flood of dignitaries, artifact “pickers” and scholars arrived to glimpse the Hopi’s “exotic” culture. Seeing an opportunity, an old soldier from Kit Carson’s Army brigade, Thomas Keam, set up a trading post near the mesas. He plundered graves and ruins for pots and jars to sell.

In 1889, Keam sold 3,000 Hopi pieces to the Smithsonian for $10,000 — or $350,000 today. When Keam ran out of plundered pots, he turned to Hopi women, including Nampeyo, to produce them. Her mother was a Tewa, her father a Hopi, and she’d grown up near an abandoned ancient village. Playing with designs, Nampeyo made pots with yellow-orange clay and painted figures on them using black, red and white mineral pigments. Then, she polished the surface to a high sheen.

Keam sent some of her pieces to the World's Columbian Exposition held in Chicago in 1893. Collectors took notice, and Keam sold them her work. According to some scholars, Nampeyo received a fraction of the profits. By the late 1890s, she was selling directly to customers.

An ex-mayor of Chicago, Carter Harrison Jr., acquired one of Nampeyo’s works. The burnt-amber pot had a stylized face of a dancing kachina. In the 1930s, Harrison gave the object to his men’s club named the Cliff Dwellers. It sat in the foyer for decades.

The Met’s provenance description of the Nampeyo jar (Screenshot from The Met’s website)

The Met’s provenance says the piece was sold in 2010 by Bonhams auction house. Bidding was intense. When the gavel came down, the Dikers had bought it for $350,000, a record for Southwest American Indian pottery.

The Dikers gave the jar in 2017 to the Met, where it is currently on display. Since it’s not a sacred or funerary item and was made for commercial use, the museum is not required to file a NAGPRA summary.

“The Objects are Not Well Documented”

Midway through the Diker exhibit’s setup and development, the Met hired some advisers. But this group did not have time to contact the appropriate tribal officers, said one of the advisers, Brian Vallo, the then-director of the Indian Arts Research Center at the School for Advanced Research in Santa Fe and a former governor of Acoma Pueblo in New Mexico. Vallo stressed that he was not a tribal leader at the time but said it was important to educate the Met “on issues of cultural sensitivities and representation.”

(ProPublica spoke to Vallo several times for this story. The Met also invited the news organization to interview him, describing Vallo as an expert in “Native arts and culture” and “familiar with the field.”)

This advisory group learned the Met didn’t have a procedure for properly curating, consulting, documenting and displaying Native American objects. They insisted that the museum hire an indigenous curator.

“The Diker collection is quite beautiful, but many of the objects are not well documented.,” Vallo said. “There needs to be an informed process that should be followed so the museum doesn’t take in items protected by federal laws, including NAGPRA.”

Soon after the Diker exhibit opened at the Met in 2018, O’Loughlin, the Association of American Indian Affairs director, heard complaints about the show from members of her organization. She contacted the curator of the Met’s American Wing, Sylvia Yount, hoping to connect her with cultural officers of the tribes that had made the objects in the collection.

“I offered to bring them to New York so they could give their perspective on the display,” O’Loughlin said, but Yount declined.

Yount said publicly that she had consulted with tribal “leaders.” The museum had hired Indigenous and nonnative academics and consultants — advisers who were not chosen by the tribes to represent them, as required by NAGPRA.

Of the meeting with O’Loughlin, Yount said in a statement that they had a “productive” session in which they discussed the Met’s “ongoing NAGPRA efforts and potential future collaborations.”

As a nonprofit with $5.58 billion in assets, the Met should have hired the staff needed to provide accurate information about its works years ago, experts said. “It could set an example about the importance of combating illegal trade and the need to protect cultural heritage,” said Tess Davis, director of Antiquities Coalition, which fights cultural trafficking. “But it seems they are doing the opposite.”

Tribal members are skeptical of many museums’ willingness to consult with them. As a result, the Department of Interior in January announced proposals to improve NAGPRA by, among other things, emphasizing that museums consult with tribes at every step of the process and defer to the customs and knowledge of tribes and their lineal descendants.

When Riley, of the White Mountain Apache Tribe, learned the Met was displaying the quiver set, he grew upset. “I wanted the museum to take it down, but I didn’t know who to ask,” he recalled.

He understood the limits of NAGPRA, having been rebuffed in a previous attempt to reclaim “four of our sacred objects” held by another East Coast museum. “We had to prove that it belongs to us, that it was stolen and that it should be returned. And the museum didn’t have to prove a thing,” he said.

And those looted masks? In 2002, Sven Haakanson Jr., then-director of the Alutiiq Museum, stumbled upon some of his people’s carvings at the Château-Musée de Boulogne-Sur-Mer in Pas-de-Calais. The French looter Pinart had given the masks to the museum a century earlier. Stunned, Haakanson met the facility’s then-director and spent the next six years cultivating a relationship with the museum. Finally, in 2008 the French shipped 34 masks to the Aluttiq Museum as a temporary loan.

Haakanson mounted a groundbreaking exhibition. “We wanted people to see that the masks were not only striking, but part of an Alutiiq tradition of sharing 7,000 years of history,” he told ProPublica. The exhibit brought some people to tears. “It helped heal the unspoken wounds of the tribe,” he said.

Now, the Alutiit are relearning how to make masks as their ancestors once did.

Such successes inspire Gibbs and the Rosebud Sioux tribe. “There should be a Cultural Repatriation Day when it’s safe for everybody and anybody who has something to give it back to tribes, no questions asked,” he said.

That includes the Dikers, he said, and the Metropolitan Museum of Art.

by Lulu Ramadan and Mike Reicher, The Seattle Times

This article was produced for ProPublica’s Local Reporting Network in partnership with The Seattle Times. Sign up for Dispatches to get stories like this one as soon as they are published.

Washington lawmakers voted nearly unanimously Friday to strengthen oversight of private special education schools that serve some of the state’s most vulnerable public school students.

These schools, called nonpublic agencies, received more than $50 million in public funding last school year to serve roughly 500 public school students with complex disabilities. But an investigation by The Seattle Times and ProPublica revealed that weak state oversight had allowed serious problems to fester for years at the largest of the schools in Washington state.

A wide-ranging bill, proposed in response to the stories, passed on Friday and is expected to be signed by Gov. Jay Inslee. It would expand the Office of the Superintendent of Public Instruction’s responsibility to investigate complaints and ensure programs have qualified staff.

The schools are meant to provide individualized curricula to students whose needs are too great to be met in traditional public schools.

The Times and ProPublica reported last year that the Northwest School of Innovative Learning — which operates a network of campuses in Tacoma, Redmond and Tumwater — had faced a steady stream of complaints alleging abuse, misuse of locked isolation rooms to manage student behavior and classes led by unqualified aides instead of certified teachers.

The legislation addresses “a travesty that has occurred” at Northwest SOIL, which served dozens of public school students, Rep. Sharon Tomiko Santos, D-Seattle, who chairs the House Education Committee and authored portions of the bill, said Thursday on the House floor. Students “were not only not receiving special education services, but they were also not receiving their basic constitutional right to an education,” she said.

The legislation would create a centralized repository of complaints against these schools.

For years, school districts across western Washington fielded alarming reports about Northwest SOIL. Though some of these complaints made it to state education officials, many stayed at the school district level, making it difficult for regulators to spot widespread issues.

Fairfax Hospital, the largest private psychiatric facility in Washington, owns Northwest SOIL and defended its program, denying allegations that it misused restraint holds or skimped on staffing.

Following The Times and ProPublica’s reporting, OSPI launched an investigation into Northwest SOIL in January. The state requested a trove of records and set deadlines in February and March. As of April, however, the inquiry is ongoing, and the state is still collecting documents from the private school, according to OSPI.

In a statement to the news organizations last week, the agency noted that the information it requested covers several years through the present and that the probe may include interviews and on-site visits. “It is our priority to fully understand the scope of the concerns being raised and assess the responses from the three NW SOIL campuses in order to identify appropriate next steps,” the agency said in a statement.

The bill, SB 5315, also requires these private schools to report police incidents to school districts and OSPI. Currently, there is no explicit requirement that the schools report police investigations. State officials said they were unaware of several police investigations at Northwest SOIL until The Times and ProPublica reported on allegations that one teacher choked students and another dragged a boy across a classroom.

“We all agree that there needs to be a tighter rein and more accountability for these schools, for vulnerable students,” said Sen. Claire Wilson, D-Auburn, who filed the legislation at the request of OSPI. The House passed the bill unanimously, while the Senate passed the bill with just one vote against it.

Currently, these private schools are subject to few state requirements. OSPI reviews annual applications that include staff lists and certification details. But the programs do not have to provide a specific curriculum or employ more than one special education teacher.

The legislation would tighten oversight, requiring annual visits and contracts with school districts that detail education plans and curriculum. It would also require more staff training at the private schools.

Some school districts accused Northwest SOIL of billing for services it never provided, including one-on-one aides. In 2021, the school’s top administrator reported to a school district that Northwest SOIL skimped on qualified staff, curriculum and basic education tools so Fairfax Hospital’s multibillion-dollar parent company, Universal Health Services, could increase profits.

Fairfax Hospital denied the allegations that it cut corners on education and staffing in a past statement to The Times and ProPublica. UHS said it had no comment beyond Fairfax’s statement.

Fairfax also did not respond to a request for comment on the legislation when it was first filed in January.

“We want to make sure we can get that public money back if schools are accused of overbilling and not providing services,” said Rep. Travis Couture, R-Allyn, who said his caucus pushed for the financial accountability provisions in response to The Times and ProPublica’s reporting.

Wilson said there was broad agreement over the need to strengthen oversight and accountability, but the House and Senate versions contained some small differences that had to be worked out. The bill passed with just two days left in the legislative session after a last-minute debate among lawmakers and ultimately included provisions suggested by both bodies.

For instance, the original Senate version did not include state auditor oversight, and the House version did not call for a centralized tracking system for complaints. The bill also renames nonpublic agencies as “authorized entities.”

The Washington Federation of Independent Schools, a nonprofit that represents private schools, worked with Wilson’s office on the legislative language. Many of the private programs are certified by the state Board of Education, though some are not. Northwest SOIL is among the programs that is not formally certified as a private school.

Suzie Hanson, the federation’s executive director, noted that many certified private schools already offer comprehensive programs. The group supports “whatever the law can do to make sure there is accountability, responsibility and recognition that the work being done is difficult and good and needs to be done by experts and by people who care a lot about making sure students get what they need,” she said.

by Patrick Lohmann, Source New Mexico

This article was produced for ProPublica’s Local Reporting Network in partnership with Source New Mexico. Sign up for ProPublica’s Dispatches and Source New Mexico’s newsletter to get stories like this one as soon as they are published.

The wildfire had already burned 160 square miles of northern New Mexico forest last spring when it suddenly surged ahead, reducing to ash the cozy cabin David Martinez had built for himself more than two decades earlier.

Martinez, now 64, had fled days before, one of 15,000 people ordered to leave as the fire spread.

He spent the next three months sleeping near the edge of the fire in his pickup truck, his physical and mental health declining from the smoke, stress and lack of sleep.

Desperate for shelter, he spent $5,000 or so of the emergency aid he’d received from the Federal Emergency Management Agency on a down payment for a late-’90s Vacationaire travel trailer. He placed it on the site of his old cabin in Monte Aplanado, about 35 miles northeast of Santa Fe.

Martinez used aid from the Federal Emergency Management Agency to make a down payment on this late-’90s trailer. The blue truck that he slept in for months is parked out front. (Adria Malcolm, special to ProPublica)

He calls it the “tin can.” Its heater is broken. The cold creeps through its thin walls. Wind rattles the wooden cabinets. But it’s all he could afford.

A year ago, two runaway fires set by the U.S. Forest Service converged to become the Hermits Peak-Calf Canyon wildfire. It rode 74 mph wind gusts, engulfing dozens of homes in a single day as it tore through canyons and over mountains.

The blaze became the biggest wildfire in the continental United States in 2022 and the biggest in New Mexico history. And it was the federal government’s fault: An ill-prepared and understaffed crew didn’t properly account for dry conditions and high winds when it ignited prescribed burns meant to limit the fuel for a potential wildfire.

The U.S. Forest Service uses controlled burns to reduce the threat of wildfires, but two of those planned burns escaped in New Mexico and merged, creating a massive blaze that lasted for months in 2022. (Eddie Moore/The Albuquerque Journal via AP)

By the time the blaze was fully contained in August, it had destroyed about 430 homes, according to the Forest Service. Monsoons helped extinguish the fire, but they spurred floods that caused more damage.

FEMA stepped in to help, offering cash for short-term expenses and, after the state requested it, temporary housing to 140 households. But the federal government has acted so slowly and maintained such strict rules that only about a tenth of them have moved in, an investigation by Source New Mexico and ProPublica has found.

A year after the fire began, FEMA says most of the 140 households it deemed eligible for travel trailers or mobile homes — essentially, people whose uninsured primary residences sustained severe damage — have found “another housing resource.”

What the agency doesn’t say: For some, that resource is a vehicle, a tent or a rickety camper. It’s a friend or relative’s couch, sometimes far from home. It’s a mobile home paid for with retirement funds or meager savings.

The fire upended a constellation of largely Hispanic, rural communities that have cultivated their land and culture in the shadows of the Sangre de Cristo Mountains for hundreds of years. Many residents can find their family names on land grants issued by Mexican governors in the 1830s.

Now they’re dispersed across the region, even out of state. Source New Mexico and ProPublica obtained records from local officials and volunteer groups and eventually interviewed more than 50 people who between them lost 45 homes.

Many of them said FEMA’s trailers were offered too late, cost too much to get hooked up or came with too many strings attached. Several said they went through multiple inspections, only to learn weeks later that one rule or another made it impossible to get a trailer on their land. In some cases, FEMA officials told people that their only option was a commercial mobile home park, miles down winding, damaged mountain roads from the homes they were trying to rebuild.

FEMA placed the trailers on the left in the El Aguila Mobile Park, but the first fire survivor didn’t move in until early November, three months after the program was announced. Several of the FEMA trailers in the park were still vacant as of April 14, 2023. (Adria Malcolm, special to ProPublica)

People who between them lost 17 homes said they withdrew from the housing program because of those problems.

As of April 19, just 13 of the 140 eligible households had received FEMA housing. Only two of them are on their own land.

Martinez said he got a call from FEMA in mid-October, seemingly out of the blue. By then, he had been living in the tin can for a couple of months. As temperatures dropped, he had started sleeping on the couch, closer to the space heater.

A FEMA representative asked if he needed a trailer to live in.

“I told them it was too late,” he said. “Way too late.”

FEMA said terrain and weather, among other factors, presented challenges in providing housing to survivors. But the agency said it made an exception to its rules by providing trailers and mobile homes in the first place — normally such programs are reserved for disasters that displace a large number of residents.

The agency said it tries to place temporary housing on people’s property, but couldn’t in many cases because of federal laws and its own requirement that trailers be hooked up to utilities. State and local officials have asked the agency to loosen its rules, but it hasn’t.

FEMA knows it has a problem with its response to wildfires. A 2019 Government Accountability Office report said FEMA’s housing programs are better suited to help those displaced by hurricanes and floods because some victims can remain in their damaged homes, there’s often more rental housing in those areas and there’s more space for large mobile home parks than there is in the rugged mountains scorched by wildfires.

FEMA agreed with the findings and said it would explore providing housing funding to states because they’re better positioned to guide recovery. That didn’t happen after the Hermits Peak-Calf Canyon fire.

Last month, Martinez woke up on the couch in severe pain from a swollen bladder. Now he needs frequent medical appointments to check his catheter and figure out what’s causing the pain. His sister has been trying to get him a FEMA trailer in a commercial park closer to a clinic in the town of Mora. It’s just 8 miles away, but it can take 45 minutes to drive there.

David Martinez now regularly visits the Mora Valley Community Health Services clinic in Mora, New Mexico, as his health has declined since the fire destroyed his home. (Adria Malcolm, special to ProPublica)

What neither of them knew when he bought that old trailer last summer is that doing so made him ineligible for a FEMA trailer.

Martinez wants to stay on his property if he can. His great-grandfather once owned the land where he built that cabin. He raised his hands to show his stiff, swollen fingers. “They ain’t worth shit now,” he said. “But a man builds his own castle, right?”

The Cost of Free Housing

By mid-June, firefighters had finally started to get the blaze under control, and people were being allowed back into communities in the area known as the burn scar. New Mexico officials turned their attention to those who had nothing to return to.

Kelly Hamilton, deputy secretary for the state Department of Homeland Security and Emergency Management, told FEMA in a letter that people were living in their cars, at work and in churches, in campers and even in tents.

He asked FEMA to provide travel trailers or mobile homes. “If the housing situation is not immediately addressed, the survival of each community is bleak,” he wrote.

A stone chimney is all that remains of a home near Cleveland, New Mexico, after a wildfire set by the U.S. Forest Service burned it down. Many people who lost everything due to the errors of one federal agency have become tangled up in the bureaucracy of another when seeking help from FEMA. (Megan Gleason/Source New Mexico)

He cited an analysis showing there was just one rental apartment available in Mora and San Miguel counties, the two hardest hit by the fire. He noted that roughly 20% of residents in those counties were below the poverty line and that one-third of Mora County residents were disabled, according to U.S. Census Bureau figures.

It took FEMA a month to approve Hamilton’s request and about two weeks more to tell the public. On Aug. 2, the agency announced it would launch a small housing program, which “will likely entail placing a manufactured home on the resident’s property for the length of time it takes to rebuild.”

But there were strict rules for where those trailers could go. Recipients would need to have electrical service, septic tanks and drinking water close to the housing site. The agency’s draft contract for the housing program specified details down to the width of straps that were required to secure trailers against wind.

Blackened metal frames are all that’s left of the solar panels that powered water pumps serving Max Garcia’s farm in Rociada, New Mexico. Garcia stayed behind the fire line and teamed up with neighbors to protect their properties from the wildfire. He and several others saved their houses. (Patrick Lohmann/Source New Mexico)

Local and state officials and disaster survivors told Source and ProPublica that the utility requirements were unreasonable, especially in this area. It’s common for homes to be heated with wood stoves fed with timber harvested from the surrounding land. Some people didn’t have running water or septic tanks even before the fire. Electrical outages were common in remote areas.

Martinez’s cabin never had running water; he got it from his neighbor’s well. So even if FEMA had offered him a trailer earlier, he would have had to pay thousands of dollars to build a well — if he could’ve found someone to do it.

“I’m trying to put this diplomatically,” said David Lienemann, spokesperson for New Mexico’s emergency management department. FEMA is “very efficient in deeming people ineligible.”

The effect of those rules is clear. As of April 19, FEMA said 140 households were eligible for trailers, as determined by the agency’s own inspections and policies. Of those, 123 had “voluntarily withdrawn.”

People dropped out because they “opted to live in their damaged homes, located another housing resource or declined all Direct Housing options,” said FEMA spokesperson Angela Byrd in an email. “However, those households remain eligible for the program should their situation change.”

FEMA wouldn’t allow Vicki Garland to connect a trailer to her solar panels, which weren’t touched by the flames. Instead, the agency insisted that she connect to the power grid, which would’ve cost her about $20,000. She’s now moving to the outskirts of Albuquerque, about 140 miles away.

Six individuals and families said they left the program because it would’ve cost too much to hook a trailer up to electricity, restore their wells or meet other utility rules.

Emilio Aragon was living in his office when he was told he was third on the list for a FEMA trailer. After waiting six months, he gave up and spent his retirement savings on a mobile home. He was among six individuals and families who said they were offered housing too late or faced delays that forced them to find housing on their own.

In response to those accounts, FEMA said in a written statement that it must ensure housing is safe and secure. “Generally, this is not a fast process because it requires us to be so thorough and meticulous. Working during the monsoon season meant it took additional time to make sure these sites were safe.”

FEMA has had a hard time getting people into temporary housing quickly after disasters. After Hurricane Ida struck Louisiana in 2021, FEMA said its housing program “is not an immediate solution for a survivor’s interim and longer-term housing needs” because it takes months to get sites ready. The agency praised Louisiana’s decision to launch its own federally funded housing program alongside FEMA’s.

A few months after the storm, The New York Times reported, the state’s program had housed around 1,200 people in about the same time it had taken for FEMA’s program to house 126.

Because FEMA’s housing programs end 18 months after a disaster declaration, every delay runs down the clock. Unless the Hermits Peak housing program is extended, it will expire in November, when the next winter is approaching.

The Sangre De Cristo mountains are covered in trees that were charred by the Hermits Peak-Calf Canyon fire, which burned an area the size of Los Angeles. (Adria Malcolm, special to ProPublica)

FEMA declined to say whether it would extend the program, saying it would work with the state to meet survivors’ needs.

Wesley Bennett and his wife, JoDean Williams Cooper, said they went through three inspections to see where a trailer could be placed on their property. No spot was suitable, and they were instead offered a site at a mobile home park. Five other individuals and families said they pulled out of the housing program because of the red tape.

FEMA has noted that nine households declined to live in a mobile home park. Several of the trailers it has installed at those sites stand empty.

Some survivors, including Bennett and Cooper, said it wasn’t feasible to live in a trailer park an hour away from the homes they were rebuilding, especially with so many roads washed out by the flooding that followed the fire. They needed to stay on their land to take care of crops and deter theft.

“People who have largely lived in a rural setting are not going to be as comfortable in a trailer park. It’s just their whole way of life,” said Antonia Roybal-Mack, a lawyer who’s from the area and is assisting hundreds of victims in filing administrative claims for damage with the federal government.

“Here’s Hoping It’s a Paperwork Issue” Erika Larsen, seated, and Tyler White on the mountain behind their property. (Adria Malcolm, special to ProPublica)

Erika Larsen and her partner, Tyler White, were living in a camper van after losing their home in the village of San Ignacio when they learned FEMA was offering temporary housing.

Their livelihoods depended on being on their land, they said. Larsen is an herbalist who before the fire made tinctures and elixirs with ambrosia, hops and nettle she grew in gardens dotting the property. White works in construction and gets a lot of her work from neighbors who know where to find her.

Early on, White was feeling optimistic. She posted to a private Facebook group of disaster survivors on Aug. 23, a day after a FEMA inspection.

“Amazingly enough, yesterday we were approved for a trailer to live in. There is only one place to put anything on our property because of flooding. Our well and septic are shot because of fire and floods so we didn’t think we’d qualify. But we did. We should get it in a couple months,” she wrote.

“All this is to say as much as it stinks dealing with FEMA,” she wrote, “as hard of a fight as it can be, you might just get something out of it.”

First image: White looks at a photo of the camper van she and Larsen lived in after the fire. Second image: Larsen transports tree seedlings to their property for planting. Third image: White digs through items she kept after the fire. She says she is not ready to part with certain remnants of their life before the fire, which still carry emotional weight for her. (Adria Malcolm, special to ProPublica)

Two days later, she added something.

Their case manager had “asked us if we wanted to live in a FEMA trailer park. We told him we’d been approved for a trailer at home and he said there was no record of that. Here’s hoping it’s a paperwork issue!”

She and Larsen waited for word while living nearby in their camper van. By late August, afternoon storm clouds often formed over the mountains, bringing monsoons that seeped through the roof and flooded their land. They worried about further damage to their property while they were away.

Two weeks after her first post, White offered another update. FEMA said the proposed site was in a floodplain, so the couple wasn’t allowed to put a trailer there.

“Our case manager said lots of people have been saying they were told they were approved for a trailer just to be declined,” she wrote. “So the moral of my story is: If a bunch of FEMA people come and tell you you are getting a trailer you still might not be eligible.”

They appealed the decision, but more inspections over the next two months determined that other sites on their property were too far from a septic tank, well or electricity hookup.

The agency also apparently made an error in its denial: Inspection records provided by Larsen showed the proposed trailer site isn’t actually in the floodplain on the map that FEMA says it uses for such decisions.

First image: The fire and flooding destroyed the well on White and Larsen’s property. Second image: FEMA officials said that potential trailer sites were too far away from the electrical hookup on the couple’s land. Third image: White and Larsen propped their mailbox up on some of the sandbags they placed in an attempt to prevent further flooding. (Adria Malcolm, special to ProPublica) White collects water from the Sapello River for her garden. FEMA told White and her partner they couldn’t place a trailer on a proposed site because it was in a floodplain, though that’s contradicted by the local flood map. (Adria Malcolm, special to ProPublica)

FEMA officials declined to comment on particular cases without written permission from the people who’d filed the claims.

By early November, as temperatures dropped and a long winter loomed, they’d had enough and decided to move into a dilapidated mobile home on a neighbor’s property. The landowner used it for storage, but at least it had a wood stove.

Larsen likened dealing with FEMA to an abusive relationship. “It really has been the worst part of this whole experience for me,” she said. “I feel capable of doing the work of processing this trauma. But having to keep talking to these people that are just fucking with my mind is pretty intense.”

The Flood That Never Came

It wasn’t just residents who saw that the program wasn’t working. State and local officials asked FEMA to relax its requirements or make accommodations, but the agency didn’t budge.

After FEMA announced in early August that it would provide trailers, officials met with Amanda Salas, the planning and zoning director for San Miguel County, and told her inspections and approvals could take 10 weeks.

Across the burn scar, survivors were arranging inspections with caravans of contractors and FEMA employees who poked around their properties to evaluate possible sites.

In late-September, Salas cleared her desk, expecting a flood of building permit requests from residents seeking permission to place FEMA trailers on their land.

Getting people back was “number one,” she said in an interview. “I need them to be in a warm place, you know?”

The flood of permit requests never came. About 35 people expressed interest in FEMA’s housing program when she told them about it after they showed up in her office to ask questions about cleanup and rebuilding. Most withdrew due to bureaucratic hurdles and delays, she said. Her counterpart in Mora County said he observed the same thing.

FEMA spokesperson Aissha Flores Cruz said in an email that the agency respects survivors’ decisions not to apply.

In mid-October, Salas attended a meeting of local and federal officials. It was her first opportunity to talk to high-ranking FEMA officials in person, and she spoke up.

She told them it didn’t make sense to require electricity, wells or septic systems in a rugged area where people didn’t rely on those services before the fire. She asked FEMA to provide gas generators.

“It seemed like they heard us,” Salas said of the meeting. “But they didn’t do anything about it.”

Community members filled a classroom during a town hall meeting with FEMA and the Forest Service. (Adria Malcolm, special to ProPublica)

Meanwhile, state officials sought waivers for the utility requirements and urged FEMA to outfit homes with portable water tanks or composting toilets. The state wanted “to at least get people back in a safe, warm home, on their property,” said Lienemann, the state emergency department spokesperson.

On Dec. 19, as temperatures dropped to single digits in parts of the burn scar, the state had not heard back from FEMA about its request. Ali Rye, an official with the state Department of Homeland Security and Emergency Management, asked for a response and again requested that FEMA approve waivers for high-need cases.

Lienemann said FEMA told the state that it would make decisions on waiving rules on a case-by-case basis. The agency never made any exceptions.

FEMA said federal law doesn’t allow it to waive the rules for its housing programs. And Flores Cruz said FEMA funds cannot pay to reconnect or rebuild utilities because that would be “permanent work” funded through a program intended to be temporary.

Payment for permanent repairs falls to a special FEMA claims office created in January, but it hasn’t cut any checks to survivors yet. Congress set aside about $4 billion in compensation funds in acknowledgement of the federal government’s role in starting the fire.

Sheltered but Not Home

Daniel Encinias is one of the two people who got trailers on their own land. Each month, a FEMA representative stops by and asks for proof that he’s trying to find permanent housing — one of the conditions of living in the agency’s trailers.

He tells them he’s waiting for a check from the $4 billion compensation fund. “The minute FEMA releases the money and gives me enough money to build my home back,” he said, “that’s when things are gonna get done.”

The claims office will handle such requests. It was supposed to start sending out money in early 2023, but the agency is behind schedule.

“I have to tell you, opening an office is hard,” claims office Director Angela Gladwell told a packed lecture hall of frustrated fire survivors at Mora High School on April 19.

FEMA said it now expects to open three field offices to the public this month and it is trying to make partial payments while it finalizes its rules. Case navigators — who are locals who know the communities, the agency pointed out — are reaching out to those who have filed claims for damages.

The throngs of FEMA employees who swarmed into the area last summer to offer short-term aid have moved on. Some survivors are in limbo, running low on disaster aid and lacking the money to rebuild.

Angela Gladwell, left, director of the FEMA claims office for the Hermits Peak-Calf Canyon fire, addresses community members during a town hall meeting in March. (Adria Malcolm, special to ProPublica)

For Rex “Buzzard” Haver, a disabled veteran, the first disaster has split into a tangle of smaller ones. After his home burned in May, his family spent nearly $64,000 on a mobile home — more than the roughly $48,000 he’s gotten from FEMA so far. He doesn’t have the money to install a wheelchair ramp.

The company that delivered his replacement home broke its windows, tore the siding and ripped off lights during delivery. But they won’t come and fix it until the county repairs the road to his house. Haver has no washer or dryer, and for months, his satellite TV provider kept calling to collect a dish that had melted into black goo.

Haver didn’t learn that FEMA was offering trailers until several months after his new mobile home arrived in July, according to his daughter, Brandy Brogan. Now he’s in hospice, and he’s struggling.

“He doesn’t feel that he has a purpose anymore,” Brogan said. “There’s nothing for him to do. There’s nowhere for him to go.”

On a recent snowy afternoon, just down the road from Haver, strong winds rushed past blackened trees and through gaps in David Martinez’s trailer. He raised his voice to be heard over the wind.

“I’ve never been a sick man,” he said, wincing. “Till lately.”

David Martinez (Adria Malcolm, special to ProPublica)

Martinez can hardly walk due to his medical problems. The once-avid outdoorsman spends most days sitting in the kitchenette, the space heater on full blast, watching hunting shows on a 16-inch television. He ultimately got $34,000 from FEMA in short-term aid, but he’s down to a few grand.

On a recent afternoon, his sister, Bercy Martinez, and her grand-nephew drove up the washed-out driveway to deliver groceries and bottled water, which she does a few times a week. She loaded her brother’s fridge. “This is very good,” she said in Spanish of the meatloaf she bought. “It’s not too spicy.”

She’d been asking FEMA for weeks about getting her brother a spot in a mobile home park so he doesn’t have to navigate the bumpy road that makes drives to the clinic so painful.

Two weeks ago, she reached a FEMA employee on the phone and asked if the housing program that had arrived too late for her brother could help him now. The answer, she said, was no. He’s no longer eligible because he has a place to live.

Bercy Martinez drops off groceries for David, her brother, in the trailer he calls the “tin can.” (Adria Malcolm, special to ProPublica)

Were You Affected by the Massive Wildfire in Northern New Mexico? We Want to Hear From You.

Byard Duncan contributed reporting.

Correction

April 26, 2023: This story originally referred incorrectly to a deputy secretary in New Mexico’s Department of Homeland Security and Emergency Management. Kelly Hamilton uses male pronouns, not female pronouns.

by Anita Lee, Sun Herald

This article was produced by the Sun Herald, which was a partner in the Local Reporting Network in 2022. Sign up for Dispatches to get stories like this one as soon as they are published.

Mississippi has pumped millions of dollars into its declining oyster industry, hoping to revive what was once a dominant trade. But in a nod to reality, the state is about to move in a decidedly different direction: scaling back government efforts and leasing to private industry water bottoms where oysters grow.

The Mississippi Department of Marine Resources currently manages and maintains most of those water bottoms, opening them to the public only when enough oysters are available for harvest. But there has been no such harvest on public reefs since 2018 because oysters are too scarce. Under a new law recently signed by Gov. Tate Reeves, Marine Resources will maintain only about 20% of permitted reef acreage for potential public harvest. The rest will be available for private lease.

The shift comes after a series of natural disasters, beginning with Hurricane Katrina in 2005, decimated Mississippi Sound reefs where oysters settle and grow to adulthood. The reefs are ecologically important to the Mississippi Sound and also once contributed millions of dollars a year in sales to the state’s economy.A recent investigation by

ProPublica and the Sun Herald, however, showed that the state’s efforts to address the crisis have fallen short. It found that Mississippi has spent more than $55 million to rebuild reefs since 2005, but did so in ways that did not respond to changing conditions.

The Department of Marine Resources, which regulates and oversees the state’s oysters and has advocated for more private leasing of reefs, has said it doesn’t have the money or staffing to maintain more than 8,112 acres of public reefs in today’s climate.

State Sen. Mike Thompson, of Pass Christian, who authored the bill, said he hopes private industry is able to replenish reefs in a commercially viable way, while also improving the overall health of the Mississippi Sound. “My hope is that water quality and habitat issues in the Sound will start getting right,” he said.

Thompson said he used the state of Louisiana’s more extensive private leasing program as a model for the Mississippi legislation. In Louisiana, private oyster grounds have rebounded from disasters because leaseholders can act quickly to restore damage and spend more time maintaining their investments.

Mississippi previously had a private leasing program for oyster farming, but most of the leased water bottoms were not being maintained. The approved legislation mandates that farmers work their leases or risk losing them. But it also gives oyster farmers more time to build up reefs, with 15-year leases as opposed to the current five-year lease terms. Leaseholders also will have first right of renewal on their water bottoms.

Thompson said Marine Resources has already mapped out lease areas where it will keep control and maintain established reefs. And it will put the revenue it receives from the leases toward oyster restoration projects. The law also sets out a process for Marine Resources to enter into and enforce the leases.

Joe Spraggins, executive director of Marine Resources, hopes the lease program will be in place by August. The agency will advertise for lease proposals and evaluate them with names of applicants removed, so the process will be fair, he said.

The state has traditionally used fresh shell or limestone to replenish the reefs created by oysters. But farmers put more effort into their reefs, planting shell or rock and raking or turning the material at intervals so that oyster larvae have clean surfaces to settle on.

Ryan Bradley of the nonprofit organization Mississippi Commercial Fisheries United expects interest in leasing to be high. He said he hopes Marine Resources will be transparent in setting up the lease program by notifying the public that it is available and posting information on its website.

by Mary Hudetz, ProPublica, and Graham Lee Brewer, NBC News

More than a dozen senators are pressing for the museums and universities that hold the most Native American remains to explain why they’ve failed for decades to return thousands of them to tribes as required by federal law.

Members of the Senate Committee on Indian Affairs and other senators singled out for scrutiny the five institutions identified in a recent ProPublica and NBC News investigation as having the largest collections of Indigenous remains — including powerful and prestigious universities with long legacies of delaying repatriation requests.

“It’s inexcusable, it’s immoral, it’s hypocritical, and it has to stop,” said committee chair Brian Schatz, D-Hawaii.

In letters sent Thursday to the University of California, Berkeley, Harvard University, the Ohio History Connection, the Illinois State Museum and Indiana University, the senators called the slow pace of repatriations of Native American remains and belongings under the 1990 federal law “unacceptable.”

“For too long, Native ancestral remains and cultural items have been unconscionably denied their journey home by institutions, desecrated by scientific study, publicly displayed as specimens, left to collect dust on a shelf, or simply thrown in a box and forgotten in a museum storeroom,” the senators wrote.

More than 30 years ago, Congress passed the Native American Graves Protection and Repatriation Act, or NAGPRA, requiring federally funded museums, universities and government agencies to identify human remains they believe to be Native American and then work with tribal nations to repatriate them.

Lawmakers expected the process would be completed or nearly completed within five years, the senators said in the letter, yet “a daunting amount of work remains.”

Hundreds of institutions nationwide still hold a total of more than 100,000 ancestral remains, according to the news organizations’ analysis of federal data. None has more than UC Berkeley, with 9,000, followed by the Illinois State Museum and the Ohio History Connection.

The senators wrote that Congress “continues to receive troubling testimony” about institutions’ poor compliance with the law, including insufficient consultation with tribes, poor tracking and misidentification of items, disrespect for traditional knowledge and allegations of avoiding or slowing repatriation efforts.

In response to the news organizations’ request for comment on the senators’ letter, UC Berkeley said in a statement that it will cooperate in a “fully transparent manner” with the Senate’s requests. It apologized for the harm caused by its inaction and said repatriation is now a top priority.

“We accept responsibility and accountability for the university’s past failings and errors in so far as repatriation and tribal relations are concerned,” it added.

A spokesperson for the Ohio History Connection said it welcomed the senators’ attention to NAGPRA, adding in a statement: “This work requires many resources and time commitments — for both institutions like ours and the federally recognized Tribes — to undertake repatriation on such a large scale.”

Fred Cate, Indiana University’s vice president for research, said the school had assigned six staff members in recent years to work on NAGPRA compliance. “The whole point is to get to a consensus point with the tribes we’re working with,” which takes time, he said.

Harvard and the Illinois State Museum did not comment Thursday; Harvard has previously issued an apology for past collection practices, and the Illinois museum said it developed plans to speed compliance with NAGPRA.

In the letters, the senators asked the universities and museums to respond to a list of written questions within two months, including how they decide whether to grant or deny tribes' requests and how long they take to make decisions.

The senators cited an expert’s recent estimate that it could take 70 more years for institutions to complete the repatriation process. “This is simply unacceptable,” they wrote of the estimate by Chip Colwell, who as curator of the Denver Museum of Nature & Science oversaw its repatriation efforts.

Meanwhile, the Interior Department recently estimated the process could take 26 more years, based on institutions' progress in the past decade. Schatz said he wants it done much sooner. “It can’t take another decade or two for this to get fixed,” he said.

The Interior Department this year is reviewing proposed regulations that would push museums and universities to finish the work within three years, which some institutions have argued is not feasible.

Edward Halealoha Ayau, the chair of the NAGPRA Review Committee, said museums have too often skirted the mandate to consult with Indigenous people. Many institutions rely only on their own records and do not review evidence rooted in tribal traditions and knowledge when they decide on claims, he added.

“You can’t just sit in the corner twiddling your thumbs, saying, ‘Oh, we don’t know whose ancestors these are,’” he said.

Ayau said the senators’ letter sends a message to the hundreds of other institutions that also must comply with NAGPRA.

The senators also asked the institutions what actions the government has taken against them under the law and the steps they took in response. Penalties are rare, federal data shows. Only 20 institutions have been fined under the law — for an average of $2,955 per institution. Of the five institutions that received a letter from the Senate, only Harvard and UC Berkeley have been cited, and they were not required to pay fines.

Schatz said he hoped the letter would encourage the institutions to speed up their compliance with the law.

“If there are deans and presidents and boards of trustees who are sitting around, trying to figure out how to live their values, this is a very practical, immediate way to start,” he said.

Schatz added that he expects the institutions will respond to the senators’ questions but that if they do not, the committee has the power to subpoena them.

Logan Jaffe contributed reporting.

by Kyle Hopkins, Anchorage Daily News

This article was produced for ProPublica’s Local Reporting Network in partnership with the Anchorage Daily News. Sign up for Dispatches to get stories like this one as soon as they are published.

Alaska governors and mayors have at various times appointed Judy Eledge to the state Board of Education, the Anchorage Health and Human Services Commission and the Alaska Juvenile Justice Advisory Committee. She stood at the side of Gov. Mike Dunleavy, a personal friend, on the night of his 2018 Republican primary victory.

When it was time for the state to cast its Electoral College votes in the 2020 presidential election, Eledge was one of the three people representing Alaska. And in his annual State of the State speech earlier that year, Dunleavy asked her to stand for an ovation because she exemplified “the heart of Alaska.”

But on March 14, 2022, in a surreptitiously taped conversation with a co-worker in her office on the top floor of one of Alaska’s largest public libraries, a different side of Eledge came out. As visitors waited in the lobby for a meeting with the city of Anchorage’s deputy library director, she lowered her voice to a whisper.

“They Got a Bunch of Woke, Liberal, I Consider Racist, Native People”

Watch video ➜

Eledge said she had spotted one of the workers she supervised removing books that contained the word “Eskimo,” a term that is now seen by many as unacceptable. This was exactly the kind of behavior, Eledge has repeatedly told her city underlings, that Anchorage Mayor Dave Bronson hired her to stamp out.

“I happened to live in Barrow,” she said, referring to the mostly Inupiat city that residents in 2016 renamed Utqiagvik. “They consider themselves Inupiat Eskimos but they got a bunch of woke, liberal, I consider racist Native people, young people. … It’s all about, ‘We stole their land.’ Which is bullshit!”

Eledge, 76, seamlessly moved from topic to topic, sharing her disgust with the use of Indigenous land acknowledgements and the sharing of pronouns. She called transgender people “very troubled” and said she was surprised that her recent public testimony against transgender girls participating in girls school sports had not made the front page of the Anchorage Daily News.

“Equitable, to me, is a racist word,” she said to her subordinate, who recorded the conversation because she feared no one would believe her about how Eledge interacted with her colleagues. At one point, Eledge noted that library employees were working to “wipe out everything white in the world.”

“Equitable, to Me, is a Racist Word”

Watch video ➜

It’s not the first time Eledge has made controversial remarks. She lost a 2021 campaign for the Anchorage School Board after images of her social media posts criticizing people of color, transgender people, Alaska Natives and Muslims circulated online. Eledge at the time claimed some posts had been edited or taken out of context, although she never offered proof or specified which posts she alleged had been altered.

Eledge continues to hold an active role in Alaska conservative politics. Once described by a columnist as “one of the Alaska GOP’s grande dames,” Eledge has been a friend to and fundraiser for some of the state’s most powerful elected officials. She personally donated more than $40,000 to Republican candidates and groups over the past decade and serves as president of the Anchorage Republican Women’s Club, which hosts debates and fundraisers.

Despite Eledge’s sometimes-inflammatory comments, social media posts and public testimony, Dunleavy and Bronson have awarded her power and public money. What’s more, the Daily News and ProPublica found that the city and state agencies meant to protect Alaskans' civil rights have been hamstrung.

Mike Dunleavy watches results come in for the 2018 Republican primary for governor. Judy Eledge stands beside him, giving a double thumbs-up. (Marc Lester/ADN)

When the same library worker who recorded the chat tried to file a complaint against Eledge with the Alaska State Commission for Human Rights, an investigator told her in January that because some of Eledge’s discriminatory remarks were directed against LGBTQ+ people, the agency would not investigate. “It’s a very sensitive issue for Dunleavy’s office,” the investigator told the library worker, who recorded the exchange.

The city agency tasked with investigating civil rights violations has also received complaints about Eledge, employees said, but has taken no action. The newsrooms found the agency is plagued by a backlog of open complaints, a problem that stands to grow worse as three of its four investigators have quit since the beginning of the year.

When library employees complained about Eledge to the city’s human resources department, the mayor’s then-director of human resources wore an “I’m with Judy” T-shirt to a library advisory board meeting. The director of the city Office of Equal Opportunity has filed lawsuits in state and federal court saying the mayor fired her after she began to investigate complaints against Eledge.

Veri di Suvero, executive director of the Alaska Public Interest Research Group, a nonprofit watchdog that has filed public records requests related to the state’s rollback of LGBTQ+ civil rights protections, said that the nullification of Alaska’s civil rights agencies allows abuses of power to go unchecked.

“When people aren’t able to report these issues, they go unaddressed and signal to the agencies causing harm that these things are OK,” di Suvero said.

In a brief phone conversation, Eledge said she could not comment on accusations involving her statements at the library because they are the subject of a lawsuit. Asked about her social media posts, which are not included in the lawsuit, Eledge said, “I’ve already commented on those when I was running for school board.” She did not respond to specific questions sent by email and hand delivered to her office.

Bronson did not respond to detailed questions but, through his spokesperson, he sent a statement to the newsrooms. “The Mayor has no comment on these matters due to pending litigation. The Mayor denounces all hateful, racist, and derogatory remarks made by any Municipal employee, and expects those who work for the city to uphold the law and protect the rights of all,” the statement said. (A few hours later, the mayor’s spokesperson sent a revised statement that did not include the sentence denouncing “hateful, racist and derogatory remarks.”)

At a city Assembly hearing in April 2022 when Eledge came under fire from an LGBTQ+ advocacy group, the mayor forcefully defended his friend.

“I’ve known her for 25 years. She is certainly energetic and outspoken, but she’s a dedicated employee,” he said. “She’s doing a great job, and she continues to have my undying and unquestioned support.”

For his part, Dunleavy in March appointed Eledge to a national education commission.

The governor refused an interview request and did not answer questions about Eledge’s public record of discriminatory remarks, his friendship with her or their fundraising relationship. He also did not answer questions about whether his administration’s decisions to award a no-bid contract to Eledge and appoint her to a national committee signaled that he saw no problem with her statements.

In an email, a spokesperson wrote: “Governor Dunleavy appointed Ms. Eledge to the Education Commission due to her long and distinguished career in public education.”

A Voice Against LGBTQ+ Protections

Eledge moved to Alaska in the 1980s and worked as a teacher and principal until 2004, according to her resume. After her retirement, under Republican governors Sarah Palin and Sean Parnell, the state Department of Education and Early Development paid Eledge at least $189,000 for consulting work and related expenses between 2007 and 2012.

The payments appeared to stop when Bill Walker, an independent, became governor, but they resumed shortly after Dunleavy’s election. The education department has paid Eledge $79,970 since 2019. Dunleavy also added a direct payment of $30,000 from the governor’s office for a no-bid contract during his first year in office.

According to Dunleavy’s spokesperson, since 2003, Eledge “has owned an education consulting business that specializes in assisting public schools in the areas of math and reading.”

Eledge’s more public roles have been as president of the Alaska Republican Women’s Club and in publicly testifying on behalf of Republican candidates and causes. In 2015, Bronson and Eledge testified before the Anchorage Assembly on consecutive nights, saying they opposed adding LGBTQ+ protections to the city civil rights law. They said laws protecting people from discrimination on the basis of their gender identity and sexual orientation posed a threat to religious freedoms and vowed to force a repeal of any such protections through voter petitions.

Bronson, who had not yet held public office at the time of that meeting, testified as a board member of the Alaska Family Council. The council is a conservative Christian organization that has opposed gay marriage and civil rights protections based on gender identity and sexual orientation.

“Transgender People Are Very Troubled”

Watch video ➜

Eledge made no secret of her beliefs. Over a one-month span in September 2020, for example, the following posts appeared on her Facebook page:

• “How sad that people of color seem to have no self esteem! If so why all the focus on color?”
• “This is a slippery slope we began with gay marriage. Next was transgender so of course pedophile is next.”
• “I wonder if [actress] Cynthia Nixon, who I believe is gay really has a son who is transgender or just confused on male/female role models. Does she feel bad about encouraging her son into something that has a very high rate of suicide? Does she feel bad when she gave her son puberty blockers to ensure her son became a ‘woman?’ Does she feel bad about telling her son a lie? Final question. Does she feel bad for the child abuse she is doing to her son?”

On Nov. 9, 2020, as Alaska’s COVID-19 hospitalizations and deaths hit then-record highs, Eledge urged parents to “get on the phone and call your doc and local hospitals and tell them to tell the truth about hospital capacity! Bullcrap on overwhelmed!” The same week, she suggested Alaska should “stop the damn testing” for the virus.

In December of 2020, Eledge put out a call to action. “If Joe Biden succeeds in becoming president it is going to be VERY important for all of us to get elected to something,” she wrote.

“There is going to be bad crap coming down and we need to fight at state and local level. None will be worse than school boards. I can’t even imagine the transgender, racist and revisionary history that will be taught!”

(Obtained from Judy Eledge’s Facebook page)

A Daily News and ProPublica review verified that the posts included in this story were posted to Eledge’s Facebook page and remained there as of this week.

An Unsuccessful School Board Campaign, Then a New Job

In January 2021, Eledge filed to run for the Anchorage School Board, announcing she would campaign along with three other conservative candidates in hopes of sweeping the open seats. But as screenshots of her Facebook posts began to circulate on Twitter and Facebook, the group abandoned its combined campaign, though Eledge claimed some of the screenshots had been altered and others were taken out of context.

Eledge, right, watches as municipal election workers tally results in the 2021 school board race that she ultimately lost. (Bill Roth/ADN)

Dunleavy and Bronson each donated to Eledge’s campaign. The mayor’s wife, Deb Bronson, also donated.

The longtime director of Anchorage city libraries retired on the first day of April 2021, creating a vacancy for the next mayor to fill. A few days later, Eledge lost her school board campaign while Bronson won the mayor’s race. In July, when he was sworn in, he named one of the conservatives who had been running for school board alongside Eledge, former principal Sami Graham, as the city’s new library director.

The city Assembly rejected Graham’s nomination because she had no library science degree, a requisite for the job. Bronson responded by making Graham his chief of staff and placing her office in the library. Three days later, on Aug. 27, Bronson named Eledge as his new head of libraries.

Eledge didn’t have a library science degree either. The Alaska Library Association raised concerns in a letter to the Anchorage Assembly, saying that appointing someone who is not a librarian and does not meet the qualifications for library director would be like appointing a fire chief who’d never fought a fire.

The mayor made her deputy director instead — a role that does not require nomination hearings or approval by the Assembly. Eledge would run the library for the next year in the absence of a permanent director.

Eledge, second from right, stands with Anchorage Public Library employees at a city Assembly meeting. Although Eledge does not have a library science degree, Mayor Dave Bronson tried to give her power over the city library system. (Bill Roth/ADN)

Jacob Cole, a longtime library employee who had served as acting director, said the deputy director job was created specifically for Eledge. Cole said he had unsuccessfully applied for the library director position, a process that included a one-on-one interview with the mayor.

“He wanted to know how to kick the homeless out of the library,” Cole said. “He’s like, ‘The homeless is a real problem in the library and Judy is telling me how much of a situation this is, and what do you think we can do to lessen them coming to the library?’”

Bronson also asked about the presence of social workers in the library and whether they should be removed to avoid encouraging homeless people to visit the building.

“I said, ‘The homeless are there no matter what. This is just meeting them where their needs are,’” Cole said.

Cole said he doesn’t know why he didn’t get the library director job. In the recorded March 14, 2022, conversation with a colleague, Eledge said that she believed Cole was “on the spectrum.”

“He’s got, like, Asperger’s,” she said in her office, using an outdated term for a type of autism.

Asked about that comment, Cole laughed. “For the record, I am in no way on the spectrum,” he said.

Cole said that over the months they worked together, Eledge would sometimes come into his office and make discriminatory remarks. She believed that librarians were conspiring to remove conservative books from shelves and that parents who allowed children to read books about gender were harming their children, and she said she didn’t trust women to select books for the collection that would appeal to boys and men.

Some of her most inflammatory remarks involved Alaska Natives, according to Cole. “She said, ‘I worked in an Alaska Native village. If it wasn’t for the white man and his oil money, they’d still be raping their daughters in caves.’” (A reporter for Alaska Public Media asked Eledge about this comment in May 2022. Eledge replied that she wouldn’t “honor the request by responding” to the question.)

On other workdays, Eledge talked about the medical profession, which she said was ruining the lives of people who did not want to take COVID-19 vaccines.

“She would go on rants about the vaccine and how she thought the vaccine wasn’t safe for children and how the vaccine was going to mess with your DNA,” said Cole, who at the time served as Eledge’s second in command.

“I would turn and say, ‘Judy, I have work to do,’” he said.

Cole is one of at least three library employees who quit while Eledge served as the de facto director, and who later filed complaints with the city. The exchanges that Cole says he had with Eledge, along with many of the alleged statements described by the library employee who made the recordings, appear in the lawsuits pending against the city in state and federal court.

“You Can’t Say That”

The woman who recorded Eledge said she began making recordings after their first meeting, at the library’s flagship location in midtown Anchorage, on her first day on the job.

She later described that day in a letter to the Anchorage ombudsman: “During our meeting Judy said, ‘I don’t have the same views about Eskimos as other people at the library. I worked in Barrow; I know they diddle their kids. It’s a well-known secret, people just don’t talk about it. I knew a 2nd grader that had gonorrhea. They send their FAS [fetal alcohol syndrome] babies to Anchorage because they don’t want to take care of them.’”

The woman provided the Daily News and ProPublica with a recording of a 74-minute conversation that she and Eledge had on March 14, 2022. She asked that she not be named because she is worried about retaliation from Eledge, the mayor or their allies.

The employee wrote the ombudsman on March 17, 2022. On March 31, the ombudsman suggested she take her complaints about Eledge to the city Office of Equal Opportunity. The office is charged with helping employees who complain about discrimination or a hostile work environment.

The employee first spoke to Heather MacAlpine, the director of the equal opportunity office, on April 1, according to a lawsuit that MacAlpine later filed against the city. (MacAlpine’s attorney said neither she nor MacAlpine could comment on the details of the case while the lawsuit is still pending.)

MacAlpine asked to talk to city human resources employees about the allegations against Eledge, the lawsuit says. One of the HR workers told MacAlpine that he had in the past “also felt compelled to tell Eledge, ‘You can’t say that’ in response to certain of her discriminatory comments,” the suit says.

The HR officials told MacAlpine that employees should bring their concerns directly to the human resources department. But the department was at the time run by Niki Tshibaka, a political ally of the mayor and the spouse of conservative U.S. Senate candidate Kelly Tshibaka, whom Eledge supported with campaign donations.

The problems at the library continued, according to MacAlpine’s lawsuit, with several employees resigning under Eledge’s leadership. At least five employees brought complaints directly to the human resources department, which refused to begin an investigation, according to the suit and interviews with library workers.

On May 3, 2022, MacAlpine visited the library and spoke to several employees who complained about Eledge’s statements and behavior. According to her lawsuit, the employees said Eledge had threatened to retaliate against any workers who repeated her comments. The employees said Eledge told library security to selectively enforce a policy that allowed visitors to bring only one bag into the building. According to the employees, Eledge told security they should “not enforce the policy against ‘mothers with diaper bags,’ but to enforce it strictly against individuals who appeared homeless, many of whom appeared to be Alaska Native.”

MacAlpine again scheduled a meeting with the human resources department. She prepared to summarize employees’ specific complaints. “By this point, multiple Loussac employees had made complaints to HR, so Ms. MacAlpine expected that the additional information she had learned would be helpful to HR’s investigation,” the suit said. (Loussac is the city’s main library.)

But when she arrived at City Hall for the meeting on May 11, 2022, she was fired.

Cole resigned May 23. Alaska Public Media reported later that month that 12 then-current or recently departed employees described a toxic and chaotic work environment under Eledge.

When the Anchorage Library Advisory Board next met, on June 15, 2022, Human Resources Director Tshibaka sat beside Eledge wearing a T-shirt that said “I’m with Judy.” Tshibaka has declined interview requests and did not respond to emailed questions for this story.

MacAlpine’s lawsuit, filed June 23, claimed that Bronson had made it clear he would not fire or discipline Eledge no matter what she did at the library. It says MacAlpine was fired for investigating complaints against Eledge, in violation of city whistleblower protections.

The city answered that lawsuit in July, denying claims that Eledge made racist statements and saying MacAlpine was not fired in retaliation for acting as a whistleblower. Eledge co-hosted a Dunleavy fundraiser the next month.

In February 2023, MacAlpine filed a lawsuit in federal court involving the same claims. The city has not yet answered that lawsuit. Both suits are pending.

“A Very Sensitive Issue for Dunleavy’s Office”

Library employees had two other bodies with which they could file complaints against Eledge.

Both are tasked with enforcing anti-discrimination laws. One is operated by the state: the Alaska State Commission for Human Rights. The other is run by the city: the Anchorage Equal Rights Commission.

But when one of the library employees attempted to make formal complaints about Eledge to the state commission, an investigator said she had been told she cannot investigate.

“I just think that’s wrong,” the investigator said, according to a recording of a phone call obtained by the Daily News and ProPublica.

The employee replied: “So I can’t even file a complaint about it? They won’t … not saying you personally, but the commission won’t take a formal complaint on it?”

“Nope,” the investigator said. “And now it’s nixed completely because a lot of what’s happening at the library has to do with LGBTQ stuff.”

“This is a very sensitive issue for Dunleavy’s office,” the investigator said.

“We Cannot Take This Case Because of the Political Implications”

The library employee said she was unable to file a formal complaint with the commission because the investigator told her she did not meet the criteria for a protected class of worker, such as a gay or transgender person, who was directly discriminated against by Eledge’s remarks.

The investigator said in an email that she could not speak to the media on behalf of the commission and could not talk about the case because complaints and investigations are confidential.

Commission director Robert Corbisier provided a written statement in response to the recording. He said the investigator misspoke and that the commission can’t pursue a discrimination case if the complainant is not a member of the protected class of people being discriminated against.

“At no time did I, or any manager or supervisor at ASCHR, or any ASCHR Commissioner during my tenure, state that this agency would not take a valid complaint due to political implications,” Corbisier said. “Since my first day here, I made it my personal mission to ensure the agency’s discrimination investigations and prosecutions avoid political influence.”

Eledge’s husband, Randy Eledge, is a former commissioner for the agency.

In March, the Daily News and ProPublica reported that the state civil rights agency had stopped accepting most categories of complaints about anti-LGBTQ+ discrimination based on advice from state Attorney General Treg Taylor. The newsrooms found the decision had been requested by a conservative Christian group and was made the week of the Republican primary for governor, in which Dunleavy was criticized for not being conservative enough.

The issue arose after the U.S. Supreme Court ruled in June 2020 that workplace discrimination against people based on their sexual orientation or gender identity was illegal. After that case, known as Bostock v. Clayton County, the state human rights commission began accepting all categories of complaints about anti-LGBTQ+ discrimination. Taylor later advised the agency to interpret the Bostock ruling more narrowly and to only accept complaints related to discrimination in the workplace.

Library employees complained to the city agency as well.

According to attorney Caitlin Shortell, who said she represents five current and former library employees, the Anchorage Equal Rights Commission has not investigated complaints of harassment and bullying within the library.

Over the past three years, fewer people have been bringing their questions and complaints about discrimination to the city agency. Yet the backlog of open cases is growing. At the end of 2021, the agency had 70 open cases. Today there are 81. It’s unclear if the library complaints are part of the backlog.

Commission director Keoki Kim said in an email that the agency is “fully enforcing” the city’s LGBTQ+ protections. Kim said that the commission plans to fill the vacant investigator positions and that reducing the backlog is a top priority.

Eledge remains deputy director of the library today. The Assembly confirmed a new library director, Virginia McClure, in December. But McClure took a leave of absence the next month, putting Eledge back in charge of library operations until March 13.

Eledge will represent Alaska’s educators as a member of the national Education Commission of the States. Dunleavy in March appointed her to the commission, where she joins governors, state legislators and heads of state education boards tasked with steering U.S. education policy.

In the meantime, Eledge has continued her advocacy against LGBTQ+ protections. Just last week she testified before the Alaska Legislature in support of a “parental rights” bill, proposed by Dunleavy, that would restrict the rights of transgender students.

by Ilya Marritz

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

An atmosphere of conviviality greeted Republican attorneys general arriving in New Orleans for their recent winter conference. It was Mardi Gras, and tourists traipsed through the lobby of the historic Roosevelt Hotel wearing colorful beaded necklaces and clutching cocktails.

A few feet from the check-in desk, if any of the attorneys general stopped to notice it, stood a replica of former U.S. Sen. and Louisiana Gov. Huey Long’s “deduct box,” which reportedly contained more than $1 million in cash donations from businesses and wealthy individuals when the notoriously corrupt Long was assassinated in 1935. The attorneys general were in New Orleans on their own fundraising mission, albeit aboveboard. That evening, in a ballroom one flight up, the Republican Attorneys General Association hosted an invite-only Super Bowl party, where they mixed and mingled with donors, and alcohol flowed freely. There was reason to celebrate. Having endured its worst crisis since it became a standalone entity in 2014, RAGA was thriving again.

RAGA, a tax-exempt political group representing more than half of the states’ chief legal officers, had come in for particularly harsh criticism for its support of Trump’s election fraud claims in the wake of the riot at the U.S. Capitol on Jan. 6, 2021. A RAGA sister organization had sent a robocall urging “patriots” to join Trump’s Jan. 6 rally on the Ellipse in Washington. Then the fuzzy recorded voice went one step further, saying, “We will march to the Capitol building and call on Congress to stop the steal.”

Only a few weeks earlier, Texas’ Republican attorney general, Kenneth Paxton, had brought an emergency motion to the Supreme Court to invalidate the results of the vote in four states Joe Biden had won. Seventeen Republican attorneys general, all RAGA members, supported the motion.

Texas Attorney General Ken Paxton waves to the crowd during a rally featuring former President Donald Trump on Oct. 22, 2022, in Robstown, Texas. (Photo: Nick Wagner/AP)

The response from corporate America was swift. A Comcast spokesperson told The New York Times, “We are appalled and condemn these actions in the strongest possible terms and have communicated that to R.A.G.A.” The University of Phoenix demanded RAGA return recent contributions. Regular five-figure supporters like Microsoft and Coca-Cola abruptly cut RAGA off, cold turkey. Contributions to the group dropped 36% in 2021 compared with 2020.

RAGA’s embrace of Stop the Steal also caused an organizational exodus. RAGA’s executive director resigned days after news of the robocall became public. Georgia’s Republican attorney general, Chris Carr, who was chairman of RAGA at the time, decided by April 2021 that he could no longer lead the group, citing a “fundamental difference of opinion” about “the significance of the events of January 6.” At least seven staffers left in the wake of the riot, with one writing a resignation note that said: “The direction is not one I can honestly stand behind.”

At the conference in New Orleans, there was little sign of such chaos. And those corporations that expressed such outrage? While some companies, like Microsoft and Coke, are still staying away, Comcast is more typical. The company resumed giving barely a month after condemning RAGA, and has since contributed close to half a million dollars. Many others are back in the fold as well, including Amazon, Walmart, Visa, Capital One, MasterCard, Intuit, Walgreens, General Motors, Altria, Home Depot and JPMorgan Chase’s PAC. Even the University of Phoenix, having pulled its donation, is filling RAGA’s coffers once again.

One might imagine that the corporate largesse reflects RAGA having distanced itself from the extremes of its party. Hardly. Since the Jan. 6 controversy, Republican attorneys generals have even more tightly embraced Trumpism and the movement that sows doubt about the legitimacy of elections.

Powered by returning companies, RAGA revenues in 2022 jumped 68%, reaching $21.6 million. The group used some of its funds to boost midterm candidates who pushed the lies that Trump won in 2020 and that the voting system is rife with fraud.

RAGA’s rapid return to health demonstrates that some corporations are willing to look past even the most extreme views because access to states’ top law officers is just too valuable. Ethics watchdogs have long been concerned that fundraising shindigs like the one in New Orleans, or at regular retreats at ski and golf resorts, allow corporate donors to buy access to RAGA and its opposite number, the Democratic Attorneys General Association. A 2014 series in The New York Times detailed how corporate lobbyists and lawyers used such access to advocate for lighter regulation and favorable legal settlements.

ProPublica reached out to all the companies mentioned in this story. Few returning donors responded to requests for comment. Others, like AT&T, emphasized that they give equally to Democratic attorneys general. An Intuit spokesperson wrote: “We believe engagement with policymakers is essential to a robust democracy.”

RAGA did not answer ProPublica’s specific questions but offered this written response from executive director Peter Bisbee: “Our nation’s Republican attorneys general are the most effective group of elected officials in combating federal overreach, protecting the Constitution, and stopping the left’s woke agenda that targets everything from the innocence of school children to the retirement accounts of hundreds of millions of Americans. I do not believe violence has any place in the political discourse of our country.”

“Jan. 6 was a gut punch to our democracy,” said Chris Toth, the former executive director of the National Association of Attorneys General, a bipartisan group. “And the fact remains that many of these contributors who said that they were going to cut off RAGA are now contributing money.”

The comeback is the product of assiduous courtship.

In the summer of 2021, South Carolina Attorney General Alan Wilson and RAGA’s executive director scheduled a virtual meeting with four representatives of the pharma and medical devices giant Johnson & Johnson. Wilson had recently become leader of the organization’s effort to rebuild relationships with donors: He had taken over as RAGA’s chairman after Georgia’s Carr, who unambiguously said that Trump lost the election, resigned.

South Carolina Attorney General Alan Wilson (Photo: Meg Kinnard / AP)

At the time, Johnson & Johnson was on the record as “reviewing” its political giving. The company’s then-CEO, Alex Gorsky, said in a statement shortly after the Capitol riot: “As a U.S. military veteran who served overseas to protect our democracy, I’m devastated by this assault on what our country has stood for since its founding: free, fair and peaceful elections.”

But Johnson & Johnson was also facing threats to its bottom line. More than 40 attorneys general were investigating the company’s marketing of talc, a mineral that has been linked to cancer. Separately, Wilson was one of 47 state attorneys general actively pursuing a settlement with a Johnson & Johnson subsidiary, Janssen, for its sales and marketing of opioids.

The calendar invite to the meeting, on Aug. 26, 2021, included two of Johnson & Johnson’s top executives handling opioid lawsuits: worldwide vice president for litigation Erik Haas and senior counsel Marc Larkins. The initial email to set up the meeting proposed “a RAGA call with J&J.” RAGA executive director Bisbee was invited as well, according to the records, which were obtained by American Oversight, a nonpartisan watchdog focused on transparency in government.

It’s not clear what was discussed, but Wilson’s consultation appeared to have an effect. Within a month, J&J sent a $285 check to RAGA, followed by a $50,000 donation in November 2021. The law firm that set up the meeting is a longtime RAGA supporter and contributed to Wilson’s 2022 reelection campaign.

Legal experts said that attorneys general should not take meetings where active litigation could be discussed alongside appeals for political donations.“There’s an incredible conflict of interest there, and there’s certainly an appearance of impropriety,” said Toth. “It’s not rocket science to stay on the right side of the ethical line here.”

In February 2022, Wilson announced an opioid settlement with Johnson & Johnson and three opioid distributors, worth $361 million to the state. Larkins’ name appeared on the consent judgment. South Carolina’s settlement with Johnson & Johnson followed a formula negotiated jointly by dozens of states. There is no indication that the drug company received preferable treatment because of its support for RAGA.

Wilson did not respond to an extensive list of questions from ProPublica.

Johnson & Johnson did not comment, but provided a link to its “Political Engagement” webpage, which states, in part: “Interactions with any government candidate or official must be conducted in a legal and ethical manner consistent with Our Credo, Company policies, and applicable laws.”

In the summer of 2021, Wilson courted United Parcel Service as well. After the Capitol riot, UPS had said it “believes the democratic process is a fundamental and sacred cornerstone for America” and that “since our founding, our country has stood for free, fair and peaceful elections.” The calendar entry for Wilson’s July 16, 2021 virtual meeting with two UPS lobbyists was titled, simply, “Call - RAGA.”

RAGA laid Wilson’s task out for him clearly in a pre-meeting fact sheet on UPS: “Please remind them that their membership lapsed in February and ask that they renew this quarter,” it said, noting that the company had donated at the Committee Club level, $15,000.

RAGA also itemized past UPS donations to RAGA and DAGA and identified some of UPS’ “policy interests.” They included labor issues, the interstate shipment of illegal or illicit goods and a Securities and Exchange Commission proposal to require companies to report on greenhouse gas emissions.

Three days after the Wilson-UPS meeting, UPS rejoined RAGA with a $15,000 donation, records show.

It’s not clear what was discussed at the meeting. Michelle Polk, a UPS spokesperson, wrote in an email, “We support elected officials in both parties with whom we engage on issues relevant to our business.”

Jeff Modisett, a former Democratic Indiana attorney general who now teaches a unit on attorneys general and ethics at UCLA Law School, said both RAGA and DAGA encourage officials to be attentive to donors’ priorities.

“RAGA is a little more blatant about it, but I think both of these organizations try to find areas of concern for the companies,” Modisett said. “The whole idea of avoiding the appearance of impropriety seems to have been forgotten by an awful lot of attorneys general.”

Republican Attorneys General Association executive director Peter Bisbee (LinkedIn)

At the same time it’s been winning back donors, RAGA has stayed loyal to MAGA. In April 2021, RAGA selected Bisbee as its new executive director. Previously, Bisbee led the Rule of Law Defense Fund, the sister organization to RAGA that commissioned the Jan. 6 robocall. After refusing to concede that Joe Biden won the 2020 election fairly, Alabama Attorney General Steve Marshall was elevated to RAGA chairman in late 2022. The vice chairman is Montana Attorney General Austin Knudsen. His office in 2021 hosted election denier Mike Lindell, the MyPillow CEO, who was then looking for a plaintiff to sign on to a lawsuit to overturn the 2020 election. Knudsen’s office did not say whether Knudsen attended the meeting.

Over the past two years, some of the attorneys general have signed legal actions aimed at helping Trump in his current legal travails, including an amicus brief objecting to the investigation into the former president’s possession of classified documents, which they labeled a “ransacking” by the Biden administration. And they filed a brief arguing that Sen. Lindsey Graham should not be forced to testify before the Georgia grand jury probing Trump’s election meddling. And even before the Manhattan district attorney’s indictment of Trump was unsealed, a number of attorneys general assailed the case, with West Virginia’s Patrick Morrisey calling it “political” and “a travesty.”

In the 2022 midterms, RAGA funded candidates who baselessly cast doubt on the legitimacy of elections. The group spent more than $3 million in Arizona to boost the attorney general campaign of Abe Hamadeh, who said the 2020 election was “rigged”; following his general election loss in 2022, Hamadeh continued to insist he won, despite a recount that confirmed his opponent was the victor. Another RAGA-backed candidate, Matthew DePerno, is under criminal investigation for possibly tampering with voting machines in Michigan. (He also lost.) DePerno told ProPublica “I did not tamper with any voting equipment.” Election denialism was not a losing proposition in all races: Kris Kobach, a longtime proponent of the idea that cheating is rampant in elections, was elected attorney general in Kansas, with RAGA spending over $500,000 to support his campaign. In all, RAGA spent at least $8 million to support eight candidates who denied or questioned the outcome of the 2020 presidential race, according to data from AdImpact.

Candidates for attorney general funded by RAGA in the 2022 midterm elections. First image: Kris Kobach of Kansas. Second image: Abraham Hamadeh of Arizona. Third image: Matthew DePerno of Michigan. (First image: Reed Hoffmann/AP. Second image: Brandon Bell/Getty Images. Third image: Brittany Greeson/The New York Times via Redux)

Rejoining RAGA hasn’t stopped some companies from publicly celebrating their civic engagement. UPS has continued to connect its image with democracy. In 2022, it was listed as the presenter of a “Democracy Game Show” hosted by TV personality Terrence J at Democracy Fest in Atlanta. The Sept. 20 event, on Voter Registration Day, aimed to boost civic awareness among high schoolers.

RAGA owes its returning health to corporations like J&J and UPS, but its life force comes from another source entirely: the nonprofits around conservative judicial activist and longtime Federalist Society executive Leonard Leo, including the Judicial Crisis Network and its parent organization, the Concord Fund.

The Judicial Crisis Network was one of RAGA’s very first donors in 2014, and the first to give five figures. In 2021, when many corporations paused their giving, the Concord Fund stepped in with gifts totaling $2.5 million, amounting to nearly 20% of RAGA’s income that year, compared with contributing just 15% a year earlier. In 2022, as companies came back, Concord’s contribution share dipped only slightly, to 19%.

The money has gone both ways. A for-profit political strategy company partly owned by Leo, CRC Advisors, has collected payments from RAGA worth about $250,000 since 2020. Expense reports describe its work simply as “consulting.”

Leo has not spoken publicly about the unfounded narrative that the 2020 election was fraudulent. But the Concord Fund gave a quarter of a million dollars to the Republican attorneys general as they petitioned the Supreme Court to invalidate the vote in four states in late 2020. And in 2022, Leo wrote a check to support Raúl Labrador, a primary challenger to the incumbent Republican attorney general of Idaho, Lawrence Wasden, who had criticized Texas’s effort to challenge the election results of other states. Wasden lost, and Labrador, who said he would have supported the Texas suit, won the primary and then the general election (with support from RAGA) to become attorney general and a RAGA member.

Federalist Society co-chair Leonard Leo speaks at the National Catholic Prayer Breakfast in Washington, D.C., on April 23, 2019. (Photo: Michael Robinson Chavez/The Washington Post via Getty Images)

Leo’s influence has been felt in other ways, too. In recent months, an obscure controversy has flared up, as some Republican attorneys general have quit the organization that supports bipartisan multistate settlements, the National Association of Attorneys General. In January, a group called the Alliance for Consumers Action Fund ran TV adsassailing NAAG as a “left wing racket” and accusing Ohio’s Republican Attorney General Dave Yost, who is the group’s chairman, of “protecting NAAG’s cash stash.” The Alliance for Consumers is a trade name for the Concord Fund.

Neither Leonard Leo nor the Concord Fund commented.

With a solid 6-3 conservative majority on the Supreme Court, state attorneys general are able to play the role of batting practice pitcher, lobbing the justices the kinds of cases they need to make precedent-setting rulings on all kinds of matters of law. Paul Nolette, chair of the political science department at Marquette University, notes that state attorneys general are the second most common Supreme Court litigator, behind the federal government itself.

“They are a perfect vanguard for a bunch of these doctrines and arguments that had been sitting around in law review articles and now you can actually put this into reality,” Nolette said. “The Leonard Leo-linked groups or other conservative libertarian ideological groups are realizing the time is right.”

A case decided in 2022, West Virginia v. EPA, demonstrates that synergy. The Supreme Court endorsed West Virginia Attorney General Patrick Morrisey’s argument that the Clean Air Act did not give the Environmental Protection Agency broad authority to regulate emissions of gases that cause climate change. The ruling could hobble regulators writing rules at other agencies, too.

Leo has particularly strong ties to RAGA’s new executive director. Unlike his predecessor, whose background was in political strategy, Bisbee came to the job as someone steeped in the conservative judicial movement. He worked for more than seven years at the Federalist Society, as membership director and director for state courts.

Last year, Bisbee was a candidate for school board in East Grand Rapids, Michigan. Records show that about half of the $6,350 he raised for his campaign came from staffers at CRC Advisors, the Leo-owned consultancy. (Bisbee lost.)

Bisbee has never publicly spoken about his role in the robocall. The fact that he was even considered for the RAGA job caused the organization’s then-finance director to resign, writing: “Pete Bisbee approved the robocall expenditure, and was the only other person accountable for RLDF involvement in the January 6 events. Over the last few months, I have fielded, reassured and assuaged concerns from our core donor base on the future direction of our organization. The result of the executive committee vote to nominate Pete as RAGA’s Executive Director is a decision I cannot defend.”

The day after the Super Bowl, the conference at Roosevelt Hotel in New Orleans got down to business. The first panel after breakfast was entitled “Election Law.” The moderator was Indiana Attorney General Todd Rokita, who has cast doubt on the result of the 2020 presidential election. The panelists, including a state legislator, a lawyer and a policy specialist, agreed that there is rampant cheating in elections, and that Democrats want to make it even easier to commit voter fraud. One panelist, North Carolina Speaker of the House Tim Moore, was the plaintiff in Moore v. Harper, a closely watched recent Supreme Court case built around the once-fringe doctrine that state legislatures, rather than the courts, should have the last word on how votes are counted. (Many Republican attorneys general joined an amicus brief in favor of Moore’s arguments; the case has yet to be decided.) Another speaker was Jason Snead of the Honest Elections Project, a nonprofit that is part of the Leo-linked Concord Fund, who spoke about the need for more restrictive voting rules as a means to restore public trust.

More than 200 people sat in the ballroom, many of them lobbyists and lawyers representing some of the best-known corporations in America. After about half an hour, the panel ended, and the room was filled with sustained polite applause.

by Irena Hwang

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For years, U.S. pharmaceutical companies have relied on drugs produced overseas to meet Americans’ medical needs. And for years, it’s been clear that federal drug regulators couldn’t keep up with inspections of the plants that made those drugs.

But a series of recent deaths linked to eyedrops produced overseas that were tainted with bacteria points to just how seriously behind the Food and Drug Administration is. Three people died and eight others were blinded in the United States from the drops, which were made in a plant in the Indian state of Tamil Nadu that the agency had never inspected prior to the outbreak. Worse, public health officials say they have detected the drug-resistant bacterial strain, which had never been seen in the U.S., among patients who never used the eyedrops, meaning it has likely achieved community spread.

A ProPublica analysis of FDA inspection data as of April shows that the agency’s inspections of overseas drug manufacturers, located mostly in India and China, has dropped precipitously even as the number of manufacturers has remained relatively steady. In fiscal year 2019, the year before the COVID-19 pandemic limited travel and movement, the FDA inspected 37% of the nearly 2,500 overseas manufacturers; in 2022, the agency only inspected 6% of around 2,800. And in India, where the contaminated eyedrops originated, the FDA inspected only 3% of manufacturers in 2022 — significantly less than in 2019, when 45% of plants were inspected.

The FDA, which is tasked with ensuring the safety and efficacy of both prescription and over-the-counter drugs, has acknowledged that limited resources make it impossible to inspect every plant, whether in the U.S. or not, that makes drugs or their ingredients. But the agency has been slow to make improvements.

This is not the first time that American consumers have been injured or killed as a result of contaminated drugs produced overseas. In the 1980s, drugs manufactured in Italy intended to prevent seizures resulted in epileptic seizures and two deaths. In 2007 and 2008, hundreds had allergic reactions, some fatal, to a commonly used blood thinner, prompting an FDA investigation. Some of the cases were later linked to an ingredient produced in a facility in China that had never been inspected by the FDA.

The Government Accountability Office, a federal watchdog agency, has warned for decades that the number of overseas inspections was worryingly low. Just weeks before the first cluster of COVID-19 patients was reported in China at the end of 2019, the GAO reported that despite some improvements in how the FDA tracked and prioritized its efforts, inspections of both foreign and domestic drug plants were on the decline, due in large part to challenges retaining staff and filling vacancies.

“While our drug supply is generally safe, problems do occur, as evidenced by contaminated eye drops in the last few months,” said Mary Denigan-Macauley, director of public health at the GAO. “No one wants to lose their vision or an eye simply from taking eyedrops to alleviate dry eyes.”

Without a doubt, the COVID-19 pandemic slowed inspections to a trickle — in fiscal year 2021, according to the data, the agency inspected a mere 99 overseas sites, less than 4% of eligible foreign manufacturers. By comparison, 15% of domestic manufacturers were inspected that year. (Nearly three-quarters of manufacturers of U.S. drug ingredients, and more than half of producers of finished drugs, are located overseas.)

During the pandemic, the FDA began announcing domestic visits beforehand and paused surveillance visits overseas except for those deemed “mission critical,” conducting most preapprovals of new drugs without visiting foreign manufacturing sites.

The FDA defended this decision in an email statement to ProPublica, saying it used “alternative inspectional tools such as remote interactive evaluations, record requests, and leveraging information from trusted regulatory partners.”

Both the GAO and Rep. Sanford J. Bishop, a Georgia Democrat, say these remote interactions do not offer the same insight that in-person, unannounced inspections do. The FDA itself affirmed the utility of inspections in its latest annual report on pharmaceutical quality: “In the absence of inspections, many of these situations” that could result in defective products, “and possible public harm, could have gone undetected.”

But three years after the pandemic started, the FDA has been slow to return to pre-pandemic inspection rates. The pandemic heightened the urgency surrounding the FDA’s drug inspection process, as the need for more equipment, vaccines and antiviral medications, many of which are produced overseas, increased. Though routine domestic surveillance inspections resumed in July 2021, routine foreign inspections remained on hold until February 2022.

In December, President Joe Biden signed a year-end spending package that allocated $10 million for a pilot program to “increase unannounced foreign inspections” of drug makers. But that was just a tiny fraction of the $3.5 billion earmarked for all FDA drug quality oversight programs.

“We have got to be protective of the health, safety and welfare of the American people,” said Bishop, who pushed for funding for overseas inspections in the House. “That is the job of the FDA.”

Experts hope the pilot program will address standards surrounding those visits, which have drawn criticism for being too permissive. Unlike domestic inspections, foreign manufacturers were routinely given a heads-up before an inspection and allowed to provide their own translators, practices that FDA inspectors have admitted could make information gathered unreliable. The FDA said that it planned to use the additional $10 million to increase staffing for foreign inspections and to work on prioritizing inspections that the agency was unable to perform during the pandemic.

Among the foreign establishments never inspected was a Global Pharma Healthcare factory in Tamil Nadu that produced artificial tears sold by U.S. companies EzriCare and Delsam Pharma. As an over-the-counter product that does not require FDA approval, the eyedrops fell into another FDA regulatory blind spot. Though the FDA has the authority to inspect manufacturers of over-the-counter products before they are sold to consumers, there is no requirement that an inspection must occur prior to the sale — unlike for prescription drugs.

The FDA is asking Congress to require that manufacturers notify the FDA of their intent to distribute over-the-counter drugs well in advance of selling them, potentially providing the FDA a “feasible opportunity” to conduct inspections.

But even that requirement might not have made much of a difference. According to the GAO’s 2022 report on FDA foreign inspections, a growing backlog of manufacturers slated for routine surveillance inspections is skewing in a concerning direction. The percentage of overseas manufacturers that hadn’t been inspected within five years, or which have never once been inspected, has grown from 30% in 2020 to more than 80% in 2022. And if the FDA prioritizes sites that have not been inspected recently, that might come at the expense of inspecting sites identified by the FDA as posing the highest public health risk.

Preventing future public health risks, like the ongoing eyedrop outbreak, has to be a priority, said Denigan-Macauley of the GAO.

“These problems are not hypothetical. They are real,” she said.

In the case of the imported tainted eyedrops, in January, the FDA and the Centers for Disease Control and Prevention traced back the Pseudomonas aeruginosa outbreak to the Global Pharma Healthcare-produced EzriCare Artificial Tears. That same month, the FDA requested records from the manufacturer regarding an unrelated issue and, concerned by Global Pharma’s “inadequate response,” placed it on an import alert, preventing its products, including the eyedrops, from entering the U.S. In early February, the FDA recommended a recall of the EzriCare and Delsam Pharma eyedrops, though it waited weeks to finally conduct an on-site inspection, only to find multiple sanitary and safety issues. The companies did not respond to a request for comment, though in a February press release EzriCare said that it was cooperating with the CDC and FDA. Global Pharma has said to The New York Times it is “fully cooperating with U.S. federal authorities.”

by Will Sennott and Anastasia Lennon, The New Bedford Light

This article was produced for ProPublica’s Local Reporting Network in partnership with The New Bedford Light. Sign up for Dispatches to get stories like this one as soon as they are published.

Last May, Tommy Beaudreau touted the potential of renewable energy sources like offshore wind to an audience that included some of his government colleagues and former industry clients.

“This industry, this group of people in the room today, really are the key to unlocking that clean energy future,” Beaudreau, the deputy secretary of the U.S. Department of the Interior, proclaimed at a conference hosted by the American Clean Power Association, a lobbying group largely funded by offshore wind developers.

Just one year earlier, Beaudreau had been a corporate lawyer, earning part of his $2.4 million income from offshore wind developers. Then he was appointed to regulate the industry he was previously paid to represent. During Beaudreau’s tenure, developers including several of his former clients have gained preliminary or final approvals for an unprecedented expansion of offshore wind, despite repeated warnings from federal scientists about potential harms to marine life and the fishing industry.

While the Trump administration put roadblocks in the path of offshore wind development, the Biden administration is fast-tracking clean alternatives like wind and solar to expand domestic energy production and slow the pace of climate change. In the next decade, 3,411 turbines and 9,874 miles of cable are slated to be built across 2.4 million acres of federally managed ocean.

Beaudreau is part of a revolving door between the government and offshore wind. Much as the Trump administration had a pipeline to and from oil and natural gas companies, in recent years at least 90 people have shuttled between federal, state or local government and the offshore wind industry, a ProPublica/New Bedford Light investigation has found. They range from rank-and-file bureaucrats to top policymakers like Beaudreau.

Deputy Secretary of the Interior Tommy Beaudreau (Hyoung Chang/The Denver Post/Getty Images)

“It’s not uncommon, but it’s not good government,” said Brett Hartl, director of government affairs for the Center for Biological Diversity, a conservation group. “Wind is better than oil and gas, but that doesn’t mean we should cut corners. Giving them an easier path than they deserve means that someone else is going to pay the price.”

Apparently left out of this cozy relationship is one keenly affected group: more than 1 million people in the U.S. who work in the seafood industry, including 158,811 commercial fishermen. Fishermen have been shouldering longer hours and more expenses as private equity takes over their industry. Now, they are grappling with the prospect that offshore wind farms will box them out of fishing areas and further imperil their livelihoods.

For generations, East Coast fishermen have plied the same waters where turbines the height of 70-story skyscrapers will soon be spinning. The Atlantic’s Outer Continental Shelf is comparatively shallow, making it easier to anchor turbines deep in the ocean floor. Steady winds blow through the entire year. But it’s also along the shelf’s ridges that currents mix and sunlight penetrates, allowing microorganisms and fish to flourish in a complex ocean ecosystem.

Federal scientists, the commercial fishing industry and industry regulators each have sounded the alarm about potential harm to fish spawning habits and about the lack of compensation for losses suffered by fishermen who will be displaced by the offshore wind industry. The Interior Department has ignored or downplayed those warnings.

The U.S. Bureau of Ocean Energy Management, which is part of the Interior Department, and the U.S. National Marine Fisheries Service, which is part of the Commerce Department, have conflicting authority over the same stretches of federal waters. BOEM oversees permitting and leasing for offshore wind development, from which the federal government reaped more than $5 billion last year. NMFS is supposed to protect marine habitat and ensure that the fishing industry is both sustainable and economically viable.

“We are very concerned about the cumulative impacts of multiple wind energy projects on the fisheries we manage,” directors of three federally established regional councils that advise NMFS wrote last fall to Amanda Lefton, then the head of BOEM.

Lefton said last October that she wants to ensure that “not only can the commercial fishing industry and offshore wind coexist but that both industries can thrive.” The American Clean Power Association has run advertisements with a similar message.

Yet on paper, BOEM has been less sanguine. A May 2021 decision published by BOEM greenlighting the 800-megawatt Vineyard Wind project south of Martha’s Vineyard, which will be the first large-scale offshore wind farm approved for construction, conceded that there will be “negative economic impacts to commercial fisheries” and that, while fishermen will be allowed to fish within the boundaries of the wind farm, “it is likely that the entire 75,614 acre area will be abandoned by commercial fisheries.” The document was signed jointly by BOEM, NOAA and the Army Corps of Engineers. Eight months later, in response to federal lawsuits accusing it of circumventing environmental protection, the agencies walked back their prediction that fishermen would abandon the area.

In January, Lefton left BOEM to join Foley Hoag, a law firm that has represented Vineyard Wind. There, she said in a press release, she will “leverage” her “experience in policy and regulation at the state and federal levels with the private sector to help businesses get projects built.”

Beaudreau and an Interior Department spokesperson, Tyler Cherry, declined to comment. Mike Moses, a spokesperson for Foley Hoag, said that Lefton complied with all ethics rules as a government official and that she has “an unwavering commitment to continue to do so moving forward.”

The future of wind power and the plight of fishermen are colliding in New Bedford, Massachusetts, an industrial city an hour south of Boston. The components to build turbines for Vineyard Wind, which started offshore construction last November, will be shipped from the Port of New Bedford, which is also the top-earning commercial fishing port in the nation. It supports almost 15,000 jobs and moves between 390 and 544 million pounds of seafood a year from its waterfront to consumers around the world.

“The great majority of the people who rely on going out to fish will be squeezed out of the industry,” said Scott Lang, a former mayor of New Bedford and an attorney who for four decades has represented many of the city’s commercial fishermen. “This is going to be the final nail.”

A groundfish vessel docked at New Bedford harbor (Tony Luong for ProPublica)

The year was 2008, and U.S. Sen. Ted Kennedy was sharing a drink with Alan Solomont, then a health care executive and former national finance chair for the Democratic National Committee, at the senator’s vacation retreat on Cape Cod. It was a calm night, barely a breeze, Solomont recalled. As they looked out at the inky blackness of the Nantucket Sound, where developers were seeking permission to build the first wind farm off the East Coast, Kennedy told Solomont disdainfully, “And they want to build a factory out there.”

Though Cape Wind was a relatively small project by today’s standards, the Kennedys and other prominent families who didn’t want their scenic vista disturbed succeeded in quashing it. At the time, “the climate was not seen as the crisis we understand it to be today,” Solomont recalled.

Since then, the political winds, so to speak, have shifted. Offshore wind has evolved from a novelty opposed by powerful insiders to a political juggernaut that enjoys widespread support. Solomont himself is betting on its future. After serving as U.S. ambassador to Spain, he now sits on the board of Avangrid — a subsidiary of a Spanish renewable energy company that owns half of the Vineyard Wind development. He owns about $380,000 worth of Avangrid shares.

The U.S. has a “willing public sector that understands the importance” of offshore wind, “both to the environment and also to the economy,” Solomont said. “There is very little downside to this, and huge upside. Massachusetts is positioned to be a hub for the offshore wind industry. That means jobs. It is, in many respects, reminiscent of the early stages of biotech.”

BOEM has fostered this transformation. Following the Deepwater Horizon oil spill in 2010, the Obama administration established BOEM to handle energy leasing and development across federally managed oceans. Its first director was Tommy Beaudreau, who oversaw the early framework for offshore wind regulation and leasing. BOEM also redrew development zones to move them farther offshore, which prevented residents from seeing the turbines, but also drove development into a different backyard — that of the commercial fishing industry.

In contrast to Kennedy, another Democratic senator from Massachusetts, Ed Markey, emerged as a key proponent of offshore wind as a way to boost the state’s economy and reduce U.S. dependence on fossil fuels. He supported what he regarded as the Biden administration’s efforts to make up for time lost when the Trump administration stalled permits for offshore wind. He crafted tax incentives for offshore wind manufacturers, which were a priority for the industry’s lobbying group, and which were ultimately adopted in the 2022 Inflation Reduction Act. Markey was a featured speaker at an American Clean Power conference on offshore wind in 2021.

Watch video ➜

Offshore wind was becoming more popular not just in Washington but also at the state level. Developers in Massachusetts began securing electricity contracts with state utilities in 2018 — locking project commitments into the Massachusetts power grid long before the developments had cleared environmental reviews or permitting.

Wind’s supporters in government flocked to join the burgeoning industry. Matt Beaton headed the Massachusetts Executive Office of Energy and Environmental Affairs when it approved a power purchase agreement with Vineyard Wind to distribute 800 megawatts of offshore wind energy. Beaton then joined consulting firm TRC Companies in 2019. According to its website, TRC provided “environmental siting and permitting support” for Vineyard Wind.

In a 2021 interview, Beaton said there’s an inevitable trade-off between energy production and environmental impact. “At the end of the day, I’m a natural resource guy. I’m a conservationist,” he said. “We don’t want to harm our environment.” At the same time, he added, “there is going to be some need for development.”

Beaton’s successor at the state energy office, Katie Theoharides, oversaw agreements with Vineyard Wind and SouthCoast Wind. Last year, she left government to head East Coast offshore development for international energy company RWE.

Beaton and Theoharides did not respond to requests for comment.

In late February, a 393-foot barge chugged around the eastern tip of Martha’s Vineyard. It was laying heavy cables into two 50-mile-long trenches, which will plug Vineyard Wind’s turbines into the state’s power grid.

Dug up to 8 feet into the ocean floor, the trenches mark the first ocean ground broken on a large-scale offshore wind farm. Starting this year, 62 turbines will be raised, slightly more than a mile apart, each as high as 837 feet, taller than the John Hancock Tower, the tallest building in Boston. Below the surface, each turbine will be supported by 197- to 312-foot-tall steel piles, each up to 34 feet wide, according to Vineyard Wind’s approved construction plans.

Vineyard Wind was the first of two wind farms on the East Coast to gain final approval from BOEM for construction. The second is South Fork Wind, located about 35 miles east of Montauk, New York.

BOEM approved the projects despite repeated warnings from the National Marine Fisheries Service about damage to the environment and the fishing industry.

Environmental laws require BOEM to consult with the fisheries service on projects taking place in “essential fish habitat,” which encompasses all offshore wind projects within 200 miles of the coast.

Fisheries regulators have been warning BOEM since 2018 about the impact of offshore wind projects. “The multiple wind energy projects planned along the east coast will have cumulative and compounding effects on our fisheries,” the three regional fishery councils on the East Coast wrote in last summer’s letter to the head of BOEM. They added that the “effects will increase in magnitude as more projects are built.”

For Vineyard Wind, fisheries scientists outlined how repeated blasts from pile driving into the ocean floor can cause “fish kills.” The sound wave impact, which can be felt underwater from as far as 50 miles away, can cause a “cumulative stress response” that disrupts the ability of fish to feed or spawn. Suspended sediment on the ocean floor kicked up by construction could also harm fish, and digging long and deep trenches to connect turbines to shore by cable would result in “permanent loss of juvenile cod” habitat.

But BOEM has the final say. It doesn’t have to heed the service’s recommendations, and it has largely ignored them.

Tensions over Vineyard Wind culminated in 2019, when NMFS disagreed with a key step in BOEM’s permitting. NMFS said BOEM’s environmental review “does not analyze the stated concerns raised by NMFS and the fishing industry.”

In response, BOEM’s chief environmental officer, William Yancey Brown, wrote that the concerns “do not rise to the level that would justify the likely extensive project delays and potential failure of the project.” Those delays, he added, “might prevent Vineyard Wind from qualifying for a federal investment tax credit.” He threatened to issue the environmental permit without NMFS support.

By the time BOEM approved Vineyard Wind for construction in July 2021, BOEM had downplayed the urgent concerns raised by the fisheries service. Its final environmental impact statement said that pile driving would cause “short-term, minor impacts,” effects of laying cables would “likely be negligible,” and the harm to marine life would be “minor.”

Twenty miles west of Vineyard Wind, South Fork Wind wants to undertake a smaller project, with 12 turbines generating about one-sixth the overall power. But the impact on fisheries habitats there is expected to be far worse, according to NMFS scientists.

South Fork Wind spans Cox Ledge, a spawning ground for Atlantic cod and 25 other species vital to the marine ecosystem and commercial fishing. Turbine locations for the project “may result in cascading long term to permanent effects to species that rely on this area for spawning,” a fisheries administrator cautioned BOEM. He added that the habitats “may take years to decades to recover.”

South Fork developers were more explicit than BOEM about the risks of turbine construction. “Intense sound pressure waves” may result in “injury or mortality caused by rupturing swim bladders or by internal hemorrhaging,” the developers wrote in their approved construction plans. Pile driving has the “potential to interrupt migration patterns” for fish.

Nevertheless, BOEM concluded that “considerable uncertainty remains” about the project’s impact. The “available evidence to date suggests that the effects of long-term habit alteration from wind development on finfish are generally beneficial,” BOEM stated in August 2021, writing that the construction on Cox Ledge “could result in beneficial, neutral, or potentially negative effects.” In January 2022, BOEM approved South Fork Wind to begin construction.

“It’s frustrating that there aren’t clear requirements to avoid an impact to these habitats,” said Michelle Bachman, a fishery analyst studying habitat and offshore wind, who led the research on South Fork Wind for the NMFS regional office. “There isn’t much we have the ability to do.”

General Electric's Haliade-X wind turbine at Rotterdam Harbor in the Netherlands, 2020. The Haliade-X is the same model that will be installed at Vineyard Wind. (Ilvy Njiokiktjien/The New York Times/Redux)

Both Vineyard Wind and South Fork Wind have enjoyed a key advocate: Beaudreau.

After leaving government during the Trump administration, Beaudreau became a partner at the law firm Latham & Watkins. He represented major offshore wind firms, including Vineyard Wind and Ørsted, the developer behind South Fork Wind. Beaudreau also worked with Avangrid Renewables — one of two partners behind Vineyard Wind — on “environmental and permitting matters” for another offshore wind project, The Washington Post reported.

Beaudreau’s potential conflicts of interest dwarf those of David Bernhardt, a former fossil fuels lobbyist who served as deputy secretary and secretary of the Interior Department in the Trump administration. Bernhardt has said he carried a list of 22 former clients with him so he could avoid conflicts. In Beaudreau’s financial disclosures, he reported working for 35 clients during the Trump administration, including 10 companies with offshore wind developments.

Beaudreau “has very deep conflicts,” said Hartl, of the Center for Biological Diversity. The Interior Department, he said, “is under enormous political pressure to accelerate this industry. He is driving that.”

Nevertheless, Beaudreau sailed through. The U.S. Senate confirmed him in June 2021 by an 88-9 vote. In a letter read aloud by Sen. Joe Manchin, the West Virginia Democrat who chairs the Senate Committee on Energy and Natural Resources, former Obama administration interior secretary Sally Jewell lauded Beaudreau’s “pragmatic knowledge of how to get things done.”

Beaudreau promised to recuse himself from decisions directly affecting former clients for two years. Still, emails show he and Lefton, who as head of BOEM reported to him, scheduled joint meetings with executives of offshore wind companies — including one with the then-head of the American Clean Power Association and another with a past chief executive of Avangrid.

The Interior Department did not respond to questions about what was discussed at the meetings.

“There is nothing that leaves the Interior Department that doesn’t have to first cross the desk of the deputy secretary,” said a former high ranking Interior official, who requested anonymity to avoid jeopardizing his career prospects. “It is a position that makes it very difficult to avoid any conflicts of interest.”

In Denmark, where the first offshore wind farm was built in 1991, a law mandates that fishermen be compensated for loss of income when other ocean users take up fishing grounds. According to the Danish Energy Agency, an offshore wind project will “necessarily” have an impact on fisheries in the area, and so it is essential to have a legal framework to address it.

By contrast, the U.S. hasn’t figured out how to compensate fishermen whose livelihood may be damaged. So far, the federal government has left the issue of compensation to developers. Some have offered one-time payments to the fishing industry. Vineyard Wind has committed about $21 million for Massachusetts fishermen, and South Fork Wind $2.6 million. But developers say they are financially squeezed by supply chain issues and proposed limits on turbine locations for the protection of whales. They don’t want their contracts with the government to build in additional payments for damages that may be attributed to their projects: the loss of historic fishing grounds, lost or wrecked gear and increased risk of accidents as vessel radar systems are disrupted.

In 2020, commercial lobsterman Vincent Damm made two trips to sea to bait his traps and discovered that more than a dozen were missing. Checking a vessel tracking chart, he saw that a survey vessel working with wind developer Ørsted had traveled directly over his gear.

He applied to Ørsted for compensation for his loss, which he valued at $3,900 and an independent consultant put at $1,800. Under Ørsted’s procedures, three people review fishermen’s claims: Two are Ørsted employees, and the third is a paid consultant for the company.

Ørsted concluded that its survey vessels were not at fault. On one occasion, the panel said, Ørsted’s vessel came no closer than half a mile from Damm’s traps. The other survey vessel followed the same track as Damm’s trawl, but equipment that could have snagged his gear wasn’t deployed. Ørsted also said other fishing vessels traveled near or over Damm’s gear.

Damm was never compensated and had to pay for new lobster pots. “I’m not going to lose sleep over it,” he said. “But if they do it now, they’re just going to keep doing it to someone else.”

Ørsted spokesperson Meaghan Wims said that the company does not comment on individual claims. It has received “very few claims for lost or damaged gear,” she said.

While the federal government has required oil and natural gas companies to compensate fishermen for damages for decades, BOEM lacks regulatory authority to do the same for damages from offshore wind projects. It has signaled off and on since 2014 that it will consider offering guidelines for compensation, but they have yet to be officially released.

A working group convened by BOEM early in 2022 discussed how to quantify economic losses for fishermen from offshore wind development. Notes of early meetings, obtained through a public records request, warned that habitat losses “would have direct impact on fishing.” But after BOEM’s lead biologist recommended toning down the language, the group’s final report said that offshore wind development “could” impact commercial fishermen and their revenue.

Last August, the New Bedford Port Authority wrote to BOEM, challenging what it described as “equivocal” language in the draft guidelines: “There is not one single entity, including BOEM, that reasonably thinks that such payments will not be necessary, so why is BOEM still using uncertain language in that instance?

“We strongly believe that the ‘burden of proof’ must lie with developers to prove to the fishing community that they are not causing environmental or economic harm.”

Markey has announced a plan to use funds from wind lease sales to establish a national compensation fund, though the legislation has not yet been filed. Markey’s office has received technical assistance from BOEM and NOAA in drafting the bill. “The long-term success of the offshore wind industry will depend on its ability to coexist not only with marine life but with the economic life of our commonwealth, including ports, fisheries, eco-tourism, and more,” Rosemary Boeglin, spokesperson for Markey, said in a statement.

Even if a national fund is authorized, it won’t be easy to calculate the cumulative economic loss for commercial fisheries. The task is complicated by inconsistent research methods used by developers, a lack of long-term studies and BOEM’s failure to conduct a comprehensive analysis of offshore wind lease areas off the New England coast.

“We’re building this ship as we’re sailing it,” NMFS scientist Andrew Lipsky said last October at a conference on wind power. “When we don’t think through the science, we often get ourselves in trouble.”

This month, a nearly 400-page report released by BOEM, NMFS and a fishing industry group said that the proliferation of wind farms is likely to impede regulators from collecting on-site data on the health of fish stocks. The lack of such information will result in “greater uncertainty” and “lost revenue to commercial and recreational fishermen,” the report said.

Fishermen worry that the lack of information on economic impact will favor developers in future negotiations over compensation. They also say the potential losses are a sum they never wanted to calculate in the first place.

“Fishing is my way of life. How do you put a price on somebody’s way of life?” Maine lobsterman Matt Gilley told wind developers, state and federal officials during a Zoom meeting in December. “There is no monetary compensation that will ever make it right.”

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Gabriel Sandoval contributed research.

Correction

April 21, 2023: This story originally omitted the names of two agencies that also signed on to a report conceding there would be negative economic impacts to fisheries. The document was produced with the Army Corps of Engineers and NOAA Fisheries, not solely by the Bureau of Ocean Energy Management.

by Brett Murphy

Leer en español.

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This story was co-published with El Diario.

Senior prosecutors in one of New York’s largest counties have known for years that drunk driving convictions of Spanish-speaking motorists may have been tainted by faulty evidence. But the Westchester District Attorney’s Office failed to investigate until defense attorneys contacted the unit that reviews wrongful convictions.

From at least 2014 to 2018, records show, New York State Police troopers gave some drivers mistranslated instructions about what it means to refuse a blood alcohol test. Legal experts, including three former prosecutors in Westchester, told ProPublica that those incorrect directions could, at a minimum, confuse or mislead drivers and may have pressured some into a decision that resulted in severe consequences.

Westchester prosecutors were alerted to the issue at least three times, in 2018, 2019 and 2021, records show.

“These are folks that are wrongfully convicted,” said Joseph Margulies, a government and law professor at Cornell University. He and others said the district attorney’s office — currently led by Miriam Rocah, who was elected in 2020 — should have been investigating every case that may have included the forms since its prosecutors became aware of the faulty instructions.

Rocah declined requests to discuss what steps she’s taking to address the issue. Spokesperson Jin Whang said the office’s conviction review unit received a list of 263 DWI arrests from the police in February 2022. “We’re still combing through paper,” she said, acknowledging progress has been slow due to the unit’s small staff and more urgent priorities, compounded by tangled police records. Whang added that prosecutors recently decided, amid questions from ProPublica, that they will consider moving to vacate sentences.

When a driver suspected of being drunk refuses a chemical test for alcohol in their system, police in New York, like in many other places, are required by law to explain that the motorist’s license will be suspended, whether or not they are found guilty, and that their refusal can be used as evidence against them. A chemical test typically measures blood alcohol content in someone’s breath, blood or urine.

But some state police troopers in Westchester told Spanish-speaking drivers something different. Officers in Troop K gave those motorists a sheet of paper that described a refusal as tantamount to being found guilty for driving drunk. It told drivers that authorities “will punish you as being guilty” for not taking the test — which is a significant departure from the actual law, which only states the refusal can be used as evidence against them. The warning also falsely stated that officers “are going to examine your blood,” instead of requesting that drivers take the test, which is often a Breathalyzer.

ProPublica consulted with Spanish-language and legal authorities at five universities, who said the mistranslated warning had several deeply flawed passages.

Counterclockwise from top: An accurately phrased warning given to motorists about the consequences of refusing a blood alcohol test; an English translation of the Spanish version that was given to drivers who didn’t speak English; and the mistranslated Spanish version that drivers received, which included several confusing and incorrect passages that do not exist in the original English warning. (Highlighted by ProPublica)

“It looks like they’re really coercing a ‘yes,’” said Amber Baylor, a law professor at Columbia University who reviewed some of the records. She said immigrant drivers may feel especially susceptible to that kind of pressure given the potential consequences: “your job going up in flames, losing your livelihood, being separated from your family or losing your ability to stay in the country.”

In an email statement, Beau Duffy, a state police spokesperson, said the form “was not an official document that was created, distributed or approved” by the agency, which means it cannot easily be tracked in department records. He said he didn’t know when the Spanish warning was first used or where it had come from but said it is no longer in circulation.

“We believe they were used only in Westchester County,” Duffy said, adding that the state police do not currently issue written refusal warnings in Spanish. The agency tells troopers who don’t speak Spanish to use a telephone translation service contracted by the department.

It’s unclear how many drivers have been impacted. For context, state police troopers arrested at least 56 Hispanic motorists on drunk driving charges in Westchester last year and 79 in 2021, according to state court data. (The state does not maintain local court records from previous years.) The data does not indicate whether or not those drivers spoke only Spanish. Around 65,000 adults in Westchester speak Spanish and limited or no English, according to U.S. Census Bureau estimates.

Whang said prosecutors didn’t believe that it was fair to cast all convictions involving the mistranslated form as wrongful.

But blood alcohol content is typically the linchpin of successful prosecutions. Legal experts compared the pre-test warning to a Miranda warning, which allows suspects to make informed decisions. “That’s why we have a process,” said Cornell’s Margulies.

Whang said the conviction review unit, which Rocah created shortly after she took office, first learned about the translation issue in late October 2021, when defense attorneys with the Legal Aid Society asked for help getting a list of potentially affected DWI cases from Troop K.

The unit received information on about 260 arrests made between 2010 and 2019 and has so far reviewed 44 of them, according to Whang, all of which resulted in a conviction. Five of those 44 cases involved the mistranslated form. Prosecutors have not yet notified the attorneys in those cases. But Whang said the DA’s office intends to do that and to come up with a “remedial course of action” once the conviction review unit has gone through the remaining cases.

She noted that there are only three attorneys in the unit, which is independent from the rest of the office and typically focus on cases of egregious misconduct and those where someone may be exonerated by new evidence, including DNA.

In November 2018, a defense attorney for a Hispanic motorist accused of drunk driving discovered the mistranslated warnings and brought them to the attention of Livia Rodriguez, who was a senior assistant district attorney at the time and still holds that role. Rodriguez told a judge she thought the issues were valid and offered reduced charges, according to a transcript of the hearing.

It’s unclear if Rodriguez alerted her superiors or the state police at that time. She declined ProPublica’s request for an interview and referred questions to Whang, who said she had no comment about how Rodriguez handled the situation at the time.

The faulty forms appeared during a hearing in 2019 as part of another of Rodriguez’s prosecutions. Defense attorney James Timko noticed the incorrect language and told the court that his client’s refusal should be inadmissible. “The police have ‘muddied the waters’ by providing a defendant a woefully inartful, inaccurate and affirmatively misleading statement,” he wrote in a court filing.

In an interview with ProPublica, Timko said, “It was a disaster.”

Still, the judge allowed the driver’s refusal into evidence because, she said, he understood English well enough during his 2017 arrest that it didn’t matter whether the Spanish warning was defective.

Timko wrote an email to Michael Borrelli, the DWI coordinator for the district attorney at the time, and said the judge’s ruling would likely be reversed on appeal because the refusal warnings were so badly mistranslated. Borelli agreed and offered less serious charges.

“It wasn’t even close,” Borrelli said in an interview. “Even someone with a fourth grade Spanish would have been like, ‘What?’”

Borrelli said he told state police personnel there that he never wanted to see those forms used again. (Duffy, at the state police, said the department had no documentation of that conversation and could not find anyone who recalled it.) “I’m sure I reported it up the chain of command and I’m sure I got orders,” Borrelli added, but he did not remember any internal effort at the DA’s office to look at past cases that may have been affected.

Whang was also not aware of any such effort at the time. “We cannot speak for the decision making — the why or the how — prior to this administration,” she said, noting that Rocah took office in early 2021.

Two years went by before the issue surfaced a third time. Katie Wasserman, a defense attorney with Legal Aid in Westchester, told the court in July 2021 that the state police had given the wrong translation to another driver in a case that dated back years. Duffy told ProPublica that by then the forms were no longer in use.

“The District Attorney’s Office is aware of the improper warning as it had been brought to their attention on at least two documented occasions in 2018 and then again in 2019,” Wasserman wrote in the filing. The driver didn’t have correct information when he decided to refuse the test, Wasserman argued, so his refusal should not have been allowed to be used against him during the plea negotiations.

“I would never have made the decision to plead guilty to a misdemeanor,” the driver, who has other drunk driving convictions, wrote in an affidavit. He wrote that he feared he may get deported and be permanently separated from his family as a result of the conviction.

In the months that followed, senior officials in the DA’s office held a series of meetings about how to handle the problem. Whang said the conviction review unit didn’t learn of the issue until Wasserman called the division’s chief, Anastasia Heeger, in late October to ask for help getting information from the state police about other cases impacted by the faulty forms. “After [Heeger] got the call, she immediately said, ‘Yes I’ll join you,’” Whang said.

Wasserman said in an interview that too much time has elapsed since then and something substantive should have happened by now. “It’s just not a priority,” she said. “Truth is, they've been sitting on it.”

Public Defenders and Defense Attorneys: Help ProPublica Report on Criminal Justice

by Anna Clark

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

As bright green plumes of toxic algae spread over Lake Erie in the summer of 2014, suffocating one of the largest lakes on earth, reporter Dan Egan was there. He had arrived in Toledo, Ohio, to investigate what had sickened the water — and how treatment plants might not be able to purify it.

Indeed, that’s exactly what happened. The day after he returned home to Wisconsin, Toledo warned people to stop drinking, boiling or bathing in tap water. Ohio’s governor declared a state of emergency. And Egan soon published an expansive report in the Milwaukee Journal Sentinel about how we got to a place where people living by such an abundant source of life-giving freshwater could not drink it or even touch it.

As the Journal Sentinel’s Great Lakes reporter for nearly 20 years, where he was twice a finalist for the Pulitzer Prize, and now writing magazine stories, Egan has long explored the tension between people and place. From invasive species to the multibillion-dollar recreational fishing industry to Chicago’s fraught relationship with Lake Michigan, he serves as a watchdog for the massive inland seas. The narrative power of his first book, “The Death and Life of the Great Lakes,” helped it reach a wide audience. A New York Times bestseller, it won both the Los Angeles Times Book Prize and the J. Anthony Lukas Award.

Egan’s new book, “The Devil’s Element: Phosphorus and a World Out of Balance,” tells the urgent story of the 13th element to be discovered. (It’s the 15th element on the periodic table.) The unchecked flow of phosphorus into our waterways — often from farm runoff — contributes to “dead zones” and toxic algae blooms. At the same time, as an essential ingredient in fertilizer, phosphorus turns vast swaths of land green, nourishing crops and animals. It makes life possible for billions of people.

Phosphorus, he writes, isn’t only essential to us; it is us. It’s found in our bones, teeth, even our DNA. In the naturally replenishing cycle, animals eat phosphorus-rich plants and then return the element to the soil when they defecate or die and decay. The soil then grows the next generation of plant life. Thanks to the remnants of long-dead organisms, phosphorus is also found in rare caches of sedimentary rocks on ancient seabeds. But in the 19th century, humans figured out how to break the cycle — systematically taking rocks, guano and even bones from one place to fertilize the soil of another place. Today, the world’s food supply depends on diminishing phosphorus reserves in places like Bone Valley, Florida, and the Western Sahara. At the same time, excess phosphorus from both plant and animal farms spills into our water and spoils it.

Dan Egan (Mike De Sisti/Milwaukee Journal Sentinel)

Egan’s reporting takes him not only to the Great Lakes, which hold about a fifth of all the freshwater on the face of the planet, but also to Germany, where an alchemist first isolated the combustible element and where traces of phosphorus cast down by World War II firebombers still wash ashore — with alarming results. We follow him to the saltwater beaches of the Mississippi Gulf Coast, once thought safe from the telltale shock of green, and to Ontario’s Experimental Lakes Area, where scientists discovered the connection between phosphorus and algae, much to the chagrin of detergent makers of the era. Along the way, Egan explores the Clean Water Act’s “yawning exemption” for agriculture and how some scientists fear we’ll hit “peak phosphorus” in a few decades.

Egan, now the Brico journalist in residence at the Center for Water Policy in the University of Wisconsin-Milwaukee’s School of Freshwater Sciences, spoke with ProPublica about phosphorus, algae and the perils and possibilities of book-length journalism. This interview was edited for length and clarity.

You’ve spent nearly 30 years covering environmental stories, first in Idaho and Utah and then at the Milwaukee Journal Sentinel. What are the earliest stories you remember writing about toxic algae blooms?

I come at this without a background in science or environmental studies. But being out in Idaho, I was thrown to the wolves, literally, because wolf reintroduction was a huge issue. I also covered salmon recovery and grizzly bear recovery. That was a crash course in environmental journalism.

But I don’t remember writing about algae until 2014. I was in Toledo the week before they lost their water, doing a story on what would happen if Toledo lost their water.

What did you come across in your reporting that surprised you?

When I was writing about the algae blooms in Lake Erie, I was mostly reading about the algae blooms. I was just introduced to phosphorus along the way. I didn’t put much of it in my first book. But the idea that we need rocks to sustain modern agriculture — somebody was saying, “Yeah, it comes out of Florida, it comes up on trains to the various fertilizer factories.” “Rocks? Any rocks?” “No, special rocks.”

And then, the whole stuff about grinding bones and spreading them on crops. I wasn’t bored writing this book, I will tell you that.

Can you share more about how phosphorus is uniquely lethal and life-giving?

What really caught my eye was how phosphorus doesn’t exist on its own in the environment. It’s always bound with oxygen atoms to make phosphates, which are stable, or noncombustible. But when they first isolated pure phosphorus in the late 1600s, it was magical stuff. It got above 80 Fahrenheit, and it just burst into flames and will not stop. Nothing will stop it. I guess you saw this in the book — a guy that’s burned goes into the water, and then he comes out of the water, and it flares up again.

And then you see that it was used as a weapon. But it’s also this essential fertilizer. Of the three big [elements in] fertilizers — nitrogen, potassium and phosphorus — phosphorus is the limiting [or least available] element.

There’s this paradox of how we’re just squandering these relatively scarce deposits and at the same time we’re overdosing our waters to the point where sometimes you can’t drink them, you can’t swim in them, it kills dogs, it threatens people.

How does the nuance here compare to our relationship with other materials that have proved vexing, such as lead, or PFAS, or even the vinyl chloride recently unleashed on East Palestine, Ohio?

With any toxin or element that we exploit and pollute the environment, there was a reason we did it. But phosphorus is so essential and also just so potentially harmful. Managing this stuff was hard enough when we had a billion people, but now we’re zooming toward 9 billion.

We need to change the way we’re using this, or there’s two consequences, and they’re not exclusive. We’re going to poison the crap out of our waters, or we’re going to run out of easily accessible deposits and have food shortages.

That’s the story. There’s a lot unfolding fast here. And I think it’s only going to accelerate.

What is slowing people down in restoring what you call “the virtuous cycle” of phosphorus?

It’s probably the agriculture lobby. They know there’s a problem, but it’s not being adequately addressed or we wouldn’t have these chronic blooms in every state in the union.

As far as slowing down people, I don’t know. It’s just not something people talk about. People would ask, “Are you writing another book?” I’d say, “Yep.” “What’s it about?” “Phosphorus.” And they’d look at me like I just told them I was diagnosed with something really bad.

And these are your book fans, asking what you’re writing next!

That alone is daunting. On the other hand, when you start telling people about how we mined the battlefield of Waterloo for all the [human] bones to grind them up to throw them on crops to grow turnips in England? That gets people’s attention.

There’s so much that goes into modern food production that we’re just divorced from. There’s been books written about this, and very good books, but I don’t think anybody has written a book for popular consumption that connects the dots between the food on a table and the poisoned waters. And also the lengths we’ve gone to find this precious substance that nobody thinks about.

Your book discusses a number of 20th century wins, such as the revival of Lake Erie after it was virtually declared dead and the pushback against the detergent industry’s overuse of phosphorus. Do you see a blueprint here for how to tackle problems with phosphorus today?

It’s useful to look at when we first tangled with phosphorus as a pollutant in the 1960s and ’70s and solved the problem, largely by banning phosphates in detergents. But it’s not entirely applicable. Today it’s a much bigger problem. It’s more diffuse. When we could plug a pipe or cap a smokestack to stop the pollutants, that’s easy. But now that it’s spread on the landscape, we’ve got these legacy phosphorus deposits. They’re going to be leaching into the water for decades. Even if we clamp down on CAFOs [concentrated animal feeding operations] tomorrow, there’s so much inertia in the system. It’s like climate: Things are going to get worse before they get better.

But it’s also important that we do look back and see that we have been successful. And we also have an obligation to just try. We have a chance to make things better for future generations. We should take advantage of it.

Before we leave off, is there any part of the book that you’d like to underline? Water or fertilizer, mining or politics, what would you like to make sure gets through to the public?

It’s a deep question and requires something of a deeper answer. But I think it’s the circle of life. It’s not just “The Lion King.” It’s real. And the thing that stitches it together in this case is phosphorus. We’ve got to learn that you don’t use it and chuck it. You use it again and use it again and use it again and use it again, if we’re going to stay fed and have waters that are safe enough to fish in and swim in and drink from and have your pets play in. This book is about the circle of life, manifested in phosphorus.

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by Ken Armstrong

This article was produced for ProPublica’s Local Reporting Network in partnership with the South Bend Tribune. Sign up for Dispatches to get stories like this one as soon as they are published.

A second police officer has pleaded guilty to a federal civil rights charge filed in response to a 2018 investigation of the criminal justice system in Elkhart, Indiana, by the South Bend Tribune and ProPublica. His conviction is the latest development in the extensive fallout from the news organizations’ reporting on the city’s policing.

Joshua Titus had been scheduled to stand trial next week. But he instead entered a plea of guilty late last month to a felony charge of violating the civil rights of a man in police custody. Both Titus and fellow officer Cory Newland had been captured on video repeatedly punching the man, who was handcuffed to a chair in the police station’s detention area, as other officers stood nearby.

The two news organizations exposed the 2018 beating after the Tribune filed a records request for the video. Newland pleaded guilty to a federal civil rights charge last year and was sentenced to 15 months in prison. Titus is scheduled to be sentenced in July, according to court records.

Titus, reached by phone Thursday, said when asked about the case, “You’ll have to speak with my attorney about that, bud.” Titus’ attorney declined to comment. Newland’s attorneys wrote in an email: “Cory long ago accepted full responsibility for his conduct. His statement to the court at sentencing was perhaps one of the most reflective, thoughtful, and compelling statements ever provided under such circumstances. It is clear to us and to all who know Cory, that his conduct was not representative of his true heart and character as a person.”

As part of ProPublica’s Local Reporting Network, the Tribune and ProPublica investigated wrongful convictions, questionable convictions, dubious investigative practices and a lack of police accountability in Elkhart, a city best known nationally for the manufacture of recreational vehicles. The investigation revealed that of the police department’s 34 supervisors, 28 had disciplinary records and seven had opened fire in at least one fatal shooting. (“That’s high. That’s high,” one criminal justice expert said of the number of fatal shootings by Elkhart police. “I don’t know what kind of place this Elkhart is.”)

In the wake of the newsrooms’ joint investigation:

The city’s police chief was suspended for 30 days. Then he resigned.

The city’s mayor abandoned his reelection campaign.

The city commissioned an outside study of its police force, which found that officers were viewed in the community as “cowboys” who engage in “rough treatment of civilians.” The 97-page study criticized the department’s lack of accountability and its “vague and non-descriptive” use-of-force reports. The study also said the department suffered from a “trust deficit,” fueled by reports of officers driving or firing guns while intoxicated; being abusive to residents; and blaming camera malfunctions for critical police interactions going unrecorded.

Keith Cooper, a man wrongly convicted of an armed robbery in Elkhart, received $7.5 million in a record settlement with the city, which apologized for its handling of his case. (The settlement was reached in 2022; the two news organizations profiled the troubling police work in Cooper’s case in 2018.)

The main investigator in Cooper’s case was a police detective who had been forced to resign because of sexual misconduct with an informant. But the city had failed to disclose the details of his misconduct for more than 10 years. After the city disclosed the long-missing records in 2019, the former detective died in an apparent suicide.

After the news organizations published the video of Titus and Newland beating the handcuffed man, the U.S. Department of Justice, in 2019, secured indictments against the two officers. Those indictments, an FBI special agent said in a statement, “send a clear message that the FBI won’t tolerate the abuse of power or victimization of citizens by anyone in law enforcement. The alleged actions by these individuals went against everything in the oath they took to serve and protect.” The Justice Department declined to comment on their convictions.

by Caleb Bedillion and Taylor Vance, Northeast Mississippi Daily Journal

This article was produced for ProPublica’s Local Reporting Network in partnership with the Northeast Mississippi Daily Journal and co-published with The Marshall Project. Sign up for Dispatches to get stories like this one as soon as they are published.

Poor defendants in Mississippi are routinely jailed for months, and sometimes even years, without being appointed an attorney due to the state’s notoriously dysfunctional public defender system. The Mississippi Supreme Court now says this practice must end.

The state’s highest court approved a mandate on Thursday that criminal defendants who can’t afford their own attorney must always have one before an indictment.

Across the state, defendants facing felony charges lose their appointed attorneys after their initial court appearances, where a judge rules whether they can be released from jail before trial. In many counties, defendants aren’t appointed new lawyers until they’re indicted, a process that can take years. Justice system reformers call this gap the “dead zone.”

In the Mississippi Delta’s Coahoma County, Duane Lake spent almost two years behind bars without bond and without an attorney while waiting to be indicted on triple murder charges following a brutal killing. After he was indicted, he spent four more years in jail before he was acquitted at trial in November 2021.

There are others like him, trapped in a system that leaves defendants who can’t afford their own attorneys with no advocate to ask a judge to reduce their bonds or dismiss their cases as they wait in jail to be indicted. Meanwhile, prosecutors face no deadlines to bring cases before a grand jury.

“There is no other state where a defendant can be sitting in jail without an attorney for months or years while charging decisions are made,” said David Carroll, executive director of the Sixth Amendment Center, which studies how states provide indigent criminal defense.

Several years ago, at the request of a task force appointed by the Mississippi Legislature, the Sixth Amendment Center evaluated the state’s indigent defense services. In a highly critical report, the group proposed a number of reforms, including stronger state oversight of how local governments provide public defenders.

The Legislature shelved the report and the task force’s recommendations, even as criminal justice reformers identified defendants like Lake who sat in jail for years facing charges that didn’t hold up.

But in February, a three-member committee of the Mississippi Supreme Court requested public comments on a proposed change to the state’s rules of criminal procedure. It would require that defendants who can’t afford their own attorneys be represented the entire time they’re awaiting indictment.

The Supreme Court approved the rule change Thursday. It takes effect in July.

“This landmark change in Mississippi’s public defense system marks the end of the dead zone and is a huge step toward a criminal legal system that doesn’t unfairly punish people who are unable to afford an attorney,” said Cliff Johnson, who as director of the MacArthur Justice Center’s Mississippi office has long argued for such a change.

But researchers like Pam Metzger, director of the Deason Criminal Justice Reform Center at Southern Methodist University in Texas, say simply requiring the assignment of an attorney will do little to improve legal representation for poor defendants.

“It’s giving you a warm body and briefcase,” she said of the rule. “But it doesn’t deal with what in my view is the real problem,” which is that people spend too long in jail before they’re indicted.

Current and former public defenders have also cautioned that Mississippi’s decentralized justice system will make it hard to implement the Supreme Court’s new rule.

The amended rule prevents an appointed attorney representing an indigent client at any stage of criminal proceedings from withdrawing until another attorney is appointed. Right now, this provision applies only after an indictment.

It was proposed in May by Russ Latino, who was then executive director of the conservative think tank Empower Mississippi. His request sat for nearly 10 months until the Supreme Court’s criminal procedure committee invited feedback and set a March 15 deadline for responses.

A raft of ideologically diverse legal activists, attorneys and policy advocates responded by urging the court to adopt the amendment.

“No just or useful purpose is served by allowing such incarceration without benefit of legal counsel,” wrote Brad Pigott, who served in the 1990s as one of Mississippi’s U.S. attorneys. “Certainly no legitimate law enforcement purpose is thereby served.”

”We’ve Got People Languishing in Jail”

Across Mississippi, some people without attorneys have spent months or longer in jail waiting for an indictment.

After prisoners in eastern Mississippi’s Lauderdale County jail filed complaints, a federal judge ordered the county in 2016 to provide him with a list of all people held in jail without indictments and without lawyers.

“Something needs to be put in place to make sure someone doesn’t fall through the cracks in this way,” said U.S. District Judge Carlton Reeves, according to an Associated Press story.

On the state’s Gulf Coast, an autistic teenager was arrested in 2018 on burglary charges and spent more than 270 days in jail because his family didn’t post a $10,000 bond. The charges were ultimately dropped after a grand jury declined to indict him.

The Wayne County Sheriff’s Office, in southeast Mississippi’s Pine Belt region, reported that 24 of 31 prisoners in the jail as of the end of September had not been indicted, including 13 who had been in jail 90 days or longer. Only six of these 13 had lawyers as of September, according to the report.

One person without a lawyer had been jailed for about six months awaiting indictment on a drug possession charge, according to the report.

Of those 13, only one is still in jail and hasn’t been indicted as of this week, said Kassie Coleman, the district attorney for Wayne County.

Gregory J. Weber, a part-time public defender in Madison County, said he sees delays with many cases, particularly drug charges.

“We’ve got people languishing in jail and nothing is being done,” Weber said in an interview before the Supreme Court acted. For defendants with a private attorney, “something usually is done about it. There is a bond reduction, or they get into drug court and they plead. So we’ve definitely got a problem with people falling through the cracks.”

Lawyers Aren’t Only Factor in Long Jail Stays

Even as Carroll, of the Sixth Amendment Center, called the change an important first step, he cautioned that because indigent defense is handled by local court systems, “the state still has no oversight function to make sure that the court rule gets implemented.”

The Sixth Amendment Center has found that in counties without full-time public defender’s offices — which is most of them — the payment structure discourages public defenders from doing extensive work on behalf of their clients.

In most counties, attorneys are paid a flat fee, no matter how many indigent clients they are assigned. That incentivizes attorneys to spend little time on indigent clients so they can take on those who can pay, the center argued.

Nor does the new rule spell out how defendants will be transferred between appointed counsel working for different court systems and different local government bodies. “I think it needs to be delineated much more clearly about when the handoff occurs and who is responsible for that person,” Weber said.

But better payment structures and effective administrative procedures won’t change a key factor in long jail terms: Prosecutors have unlimited time to indict and prosecute someone after they’ve been arrested.

“We’re really focused in Mississippi on the charging time,” said Metzger, who has studied this phase of criminal proceedings in courts across the country.

She said it would be more effective to institute deadlines for indictment, mandatory bail hearings and early disclosure of evidence.

Even when lawyers are appointed early on, such as in Yazoo County, defendants still spend months or years in jail.

Defense attorneys in the county have filed almost 100 motions since 2019 seeking to reduce bonds or dismiss charges. Many of those defendants had spent a year or more in jail while waiting to be indicted.

John Paul Thornton was arrested by Yazoo City police on Dec. 3, 2018, and charged with two counts of commercial burglary involving a local dollar store. Over a year later, Thornton was still in jail and had not been indicted.

Belinda Stevens, an attorney who works part-time as a public defender in Yazoo County, filed a motion on Thornton’s behalf in January 2020, seeking a dismissal of the case and claiming that his constitutional right to a speedy trial had been denied. Stevens didn’t respond to requests for comment.

A month later, prosecutors dropped the case. A judge signed an order, and Thornton walked free the next day after 436 days in jail.

Agnel Philip contributed reporting.

by Alec MacGillis

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

In the hallway outside the public advocate’s office in New York, on the 15th floor of the monumental David N. Dinkins Manhattan Municipal Building, a metal sign on the wall states that the office has walk-in hours from 10 a.m. to 4 p.m., Monday to Thursday. But the door is locked, and a paper sign on it has a contradictory message: “The Office of the Public Advocate is operating on a hybrid schedule and is only receiving constituents with an appointment.” Visitors are instructed to send an email or call a number if they want assistance.

The sign on the door is not a holdover from some earlier stage of the coronavirus pandemic. It reflects the ongoing practice of the office, a 55-person agency with a budget just under $5 million that serves as a sort of ombudsman for residents seeking assistance with city services or regulations. Public Advocate Jumaane Williams, first elected to the office in 2019, has decided for the foreseeable future to require employees to work in-person only two days per week, and the agency is therefore limiting public access to the actual office. “We’re modeling the hybrid,” said Kevin Fagan, its deputy communications director. “We’ve been calling on the city to adopt hybrid models where possible, to do remote work for health purposes and because that’s the way of the workforce right now, so that’s how we’re operating here at this point.”

The constriction of public access is especially striking for an agency that has “public” in its title, and it has drawn some criticism locally, but it is hardly unique at government offices and other public buildings around the country. Three years after the arrival of the pandemic led to widespread shutdowns, as daily activity has returned to pre-pandemic norms in most realms — from travel to schools to retail to the arts — the provision of government services and access to public spaces remains limited in many places.

In some instances, government offices and public agencies simply have taken their time in lifting pandemic-era provisions. For instance, the Chicago Transit Authority, like some other agencies, still asserts that freedom of information requests will take longer than usual to complete because of the health emergency. The Oakland City Hall only last month reopened itself to the public. And the Philadelphia library system only recently restored weekend hours at some branches.

But in other cases, as with the New York public advocate’s office, the reduction of direct interface between members of the public and the people being paid to work on their behalf represents a new normal. The diminishment of access isn’t driven by budget cuts; many agencies are in fact flush with funding as a result of the federal government’s pandemic recovery spending.

Rather, the shift is being driven by government officials seeking to accommodate a workforce that is as reluctant to give up the remote-work option as are many counterparts in the private sector. Elizabeth Whitehouse, chief public policy officer at the Council of State Governments, said that government officials are grappling with a labor shortage caused by an aging workforce, a skills gap and uncompetitive pay levels that the temporary surge of federal funds does little to address. As a result, she said, government supervisors feel they have little choice but to offer flexible work arrangements as an inducement to hire and retain. “The overall state workforce shortages are a significant barrier as states grapple with how to provide access to services and public spaces,” she said.

The result is that some public buildings that citizens used to be able to enter to seek help or resolve a problem now present a locked door or security desk requiring an appointment. For government workers, it can be easier not to have to deal with the public in an unmediated way, with all the unexpected demands and drama that can come with that.

But with less direct interaction, provision of services can suffer, warns Paul Light, a professor of public service at New York University. “You’ve got to have human contact for a lot of these positions,” he said. “This is not a time for shutting down access. It’s when you want state and local governments to show they’re ready and open for business.”

“Lots of people want that contact, and it’s not good for the body politic to lose it,” Light added. “State and local government need to think about what they’re doing for their future base of support by cutting off direct contact.”

The cutbacks are impeding important functions. Take, for example, the process for obtaining a license as a building contractor in Maryland. The Maryland Home Improvement Commission, which oversees that process, has shifted its activities mostly online. Contractors report monthslong delays in renewing licenses, putting them at risk of liability for working without a valid license.

Seeking assistance in person is easier said than done. Some information online still lists the commission’s address as being on Calvert Street in Baltimore, but a handwritten sign at the locked door at that address directs people to the Maryland Department of Labor building on Eutaw Street, a mile away. At that building, a sign states that visitors need an appointment to enter, and a security guard rebuffs anyone who tries to come in otherwise.

One contractor, who spoke on the condition of anonymity because he feared putting his license at risk, said that after he finally managed to make an appointment online, the MHIC employee was late in arriving for it and wouldn’t let the contractor into the building, making him wait in the lobby while the employee took the application upstairs.

A department spokesperson, Maria Robalino, said that the appointment requirement “ensures the appropriate staff is available to assist the customer in a timely manner” at a time when the department is requiring employees to work in-person only part time, on average three days per week. MHIC, she added, is “fully staffed, but we believe the demand for services is greater than the staff we have in place, which may be the reason why we have service delays. We are diligently working to find solutions to this staffing issue.”

Similarly, the Baltimore Department of Housing and Community Development shifted during the pandemic to an online system for building permits, but that system has been experiencing frequent technical troubles and is being revamped. When contractors go to the permit office downtown, they encounter a much different scenario than before the pandemic, when more than a dozen employees received applicants at a series of booths. On a recent Thursday, only three of the permit office’s 18 employees were working there, and the big “Permit Information” desk where visitors used to start the process was completely empty, with a dozen stacks of paper spread out on a counter with instructions on how to file an application online.

One electrician, who did not want to give his name, said that the experience had gotten much worse since before the pandemic, and that he now often waited two to three hours at the building. “Before,” he said, “they had more employees, so there were more chances of being helped.” The online system is “very tough, very slow,” he said. “And if you try to call them, to coordinate an application or speed up an application, it’s not going to happen; you’re not going to talk to anyone.”

Tammy Hawley, a spokesperson for the department, said it was aware of the problems with the online system and hoped to roll out a new one early next year. “We own the system functionality issues that we ourselves want improved,” she said. “We want a system that is more user-friendly for everyone and are well on our way to accomplishing that.” As for the long waits for those who come for in-person assistance, she said, “The permit office is open every day, but we do have a large portion of our workforce teleworking.”

In some cases, the reduction of access at public buildings is a product of both the pandemic and security concerns that grew out of the rise in civil unrest in recent years. In Richmond, Virginia, it was possible before the pandemic for the public to walk into City Hall through doors on all four sides of the building. There was a deli on the ground floor and an observation deck on the top of the building, 18 floors up, where anyone could go for a sweeping view of the city, and where city agencies and civic groups sometimes held events.

But in 2020, as protests swirled over the murder of George Floyd by a Minneapolis police officer and over Richmond’s decision to remove Confederate monuments, Mayor Levar Stoney started receiving threats. The city decided to give him a security detail. And as Richmond started to reopen access to City Hall as the threat of the pandemic ebbed, it was on much different terms. Today, members of the public can come in only through one of the four entrances; they have to go through a metal detector; and they need an appointment to go to any offices other than the ground-floor counter for paying tax bills. “It’s a more procedural sort of access,” said a city spokesperson, Petula Burks. She declined to specify what the in-person work requirement was for city employees. “We’re still working through our policies,” she said.

And with access to the building restricted, the observation deck remains off-limits to the public. This is unfortunate, said Justin Doyle, a member of the city’s Urban Design Committee, who used to bring visitors up to the deck or simply meet his wife there for occasional lunches at one of the picnic tables. “It really was a public space,” he said. “There was nothing else like it in Richmond.”

Security issues have also played a role in further limiting access to the public advocate’s office in New York. Several weeks ago, the Department of Citywide Administrative Services, which manages the building, locked the door leading from the elevators on the 15th floor to the hallway that includes the office. According to a DCAS employee, this decision was made after an intern with another agency was attacked by a member of the public who became agitated after finding the public advocate’s office closed. Around the same time, she said, another frustrated member of the public had a screaming tantrum in the bathroom. Sealing off the whole floor is a move intended “to keep our employees safe,” the DCAS employee said.

Fagan, the public advocate’s office spokesperson, said that if citizens do manage to reach the locked door of the office, they can ring the buzzer in the hallway, and if there are staff members available, they may offer assistance, despite the sign on the door requiring an appointment.

If citizens do succeed in entering the office, they will discover an environment that feels frozen in time, reflecting how little now happens there. On a recent Thursday afternoon, the desks sat mostly empty. In the waiting area stood a large hand-sanitizer dispenser and an air purifier. On the small table in the waiting area sat some reading material: New York magazine’s “Reasons to Love New York” issue from December 2019.

by Justin Elliott, Joshua Kaplan and Alex Mierjeski

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In 2014, one of Texas billionaire Harlan Crow’s companies purchased a string of properties on a quiet residential street in Savannah, Georgia. It wasn’t a marquee acquisition for the real estate magnate, just an old single-story home and two vacant lots down the road. What made it noteworthy were the people on the other side of the deal: Supreme Court Justice Clarence Thomas and his relatives.

The transaction marks the first known instance of money flowing from the Republican megadonor to the Supreme Court justice. The Crow company bought the properties for $133,363 from three co-owners — Thomas, his mother and the family of Thomas’ late brother, according to a state tax document and a deed dated Oct. 15, 2014, filed at the Chatham County courthouse.

The purchase put Crow in an unusual position: He now owned the house where the justice’s elderly mother was living. Soon after the sale was completed, contractors began work on tens of thousands of dollars of improvements on the two-bedroom, one-bathroom home, which looks out onto a patch of orange trees. The renovations included a carport, a repaired roof and a new fence and gates, according to city permit records and blueprints.

A federal disclosure law passed after Watergate requires justices and other officials to disclose the details of most real estate sales over $1,000. Thomas never disclosed his sale of the Savannah properties. That appears to be a violation of the law, four ethics law experts told ProPublica.

The disclosure form Thomas filed for that year also had a space to report the identity of the buyer in any private transaction, such as a real estate deal. That space is blank.

“He needed to report his interest in the sale,” said Virginia Canter, a former government ethics lawyer now at the watchdog group CREW. “Given the role Crow has played in subsidizing the lifestyle of Thomas and his wife, you have to wonder if this was an effort to put cash in their pockets.”

Thomas did not respond to detailed questions for this story.

In a statement, Crow said he purchased Thomas’ mother’s house, where Thomas spent part of his childhood, to preserve it for posterity. “My intention is to one day create a public museum at the Thomas home dedicated to telling the story of our nation’s second black Supreme Court Justice,” he said. “I approached the Thomas family about my desire to maintain this historic site so future generations could learn about the inspiring life of one of our greatest Americans.”

Crow’s statement did not directly address why he also bought two vacant lots from Thomas down the street. But he wrote that “the other lots were later sold to a vetted builder who was committed to improving the quality of the neighborhood and preserving its historical integrity.”

ProPublica also asked Crow about the additions on Thomas’ mother’s house, like the new carport. “Improvements were also made to the Thomas property to preserve its long-term viability and accessibility to the public,” Crow said.

Ethics law experts said Crow’s intentions had no bearing on Thomas’ legal obligation to disclose the sale.

The justice’s failure to report the transaction suggests “Thomas was hiding a financial relationship with Crow,” said Kathleen Clark, a legal ethics expert at Washington University in St. Louis who reviewed years of Thomas’ disclosure filings.

There are a handful of carve-outs in the disclosure law. For example, if someone sells “property used solely as a personal residence of the reporting individual or the individual’s spouse,” they don’t need to report it. Experts said the exemptions clearly did not apply to Thomas’ sale.

The revelation of a direct financial transaction between Thomas and Crow casts their relationship in a new light. ProPublica reported last week that Thomas has accepted luxury travel from Crow virtually every year for decades, including private jet flights, international cruises on the businessman’s superyacht and regular stays at his private resort in the Adirondacks. Crow has long been influential in conservative politics and has spent millions on efforts to shape the law and the judiciary. The story prompted outcry and calls for investigations from Democratic lawmakers.

In response to that reporting, both Thomas and Crow released statements downplaying the significance of the gifts. Thomas also maintained that he wasn’t required to disclose the trips.

“Harlan and Kathy Crow are among our dearest friends,” Thomas wrote. “As friends do, we have joined them on a number of family trips.” Crow told ProPublica that his gifts to Thomas were “no different from the hospitality we have extended to our many other dear friends.”

It’s unclear if Crow paid fair market value for the Thomas properties. Crow also bought several other properties on the street and paid significantly less than his deal with the Thomases. One example: In 2013, he bought a pair of properties on the same block — a vacant lot and a small house — for a total of $40,000.

The block in Savannah, Georgia, where Texas billionaire Harlan Crow bought property from Supreme Court Justice Clarence Thomas. Today, the vacant lots Thomas sold to Crow have been replaced by two-story homes. (Octavio Jones for ProPublica)

In his statement, Crow said his company purchased the properties “at market rate based on many factors including the size, quality, and livability of the dwellings.”

He did not respond to requests to provide documentation or details of how he arrived at the price.

Thomas was born in the coastal hamlet of Pin Point, outside Savannah. He later moved to the city, where he spent part of his childhood in his grandfather’s home on East 32nd Street.

“It had hardwood floors, handsome furniture, and an indoor bathroom, and we knew better than to touch anything,” Thomas wrote of the house in his memoir, “My Grandfather’s Son.”

He inherited his stake in that house and two other properties on the block following the death of his grandfather in 1983, according to records on file at the Chatham County courthouse. He shared ownership with his brother and his mother, Leola Williams. In the late 1980s, when Thomas was an official in the George H.W. Bush administration, he listed the addresses of the three properties in a disclosure filing. He reported that he had a one-third interest in them.

Thomas was confirmed to the Supreme Court in 1991. By the early 2000s, he had stopped listing specific addresses of property he owned in his disclosures. But he continued to report holding a one-third interest in what he described as “rental property at ## 1, 2, & 3” in Savannah. He valued his stake in the properties at $15,000 or less.

Two of the houses were torn down around 2010, according to property records and a footnote in Thomas’ annual disclosure archived by Free Law Project.

In 2014, the Thomas family sold the vacant lots and the remaining East 32nd Street house to one of Crow’s companies. The justice signed the paperwork personally. His signature was notarized by an administrator at the Supreme Court, ​​Perry Thompson, who did not respond to a request for comment. (The deed was signed on the 23rd anniversary of Thomas’ Oct. 15 confirmation to the Supreme Court. Crow has a Senate roll call sheet from the confirmation vote in his private library.)

Thomas’ financial disclosure for that year is detailed, listing everything from a “stained glass medallion” he received from Yale to a life insurance policy. But he failed to report his sale to Crow.

First image: Thomas’ signature on the deed for his deal with Crow. Second image: A 2014 photograph shows the vacant lots that Crow bought from Thomas. (First image: Chatham County Superior Court. Second image: Chatham County Metropolitan Planning Commission.)

Crow purchased the properties through a recently formed Texas company called Savannah Historic Developments LLC. The company shares an address in Dallas with Crow Holdings, the centerpiece of his real estate empire. Its formation documents were signed by Crow Holdings’ general counsel. Business records filed with the Texas secretary of state say Savannah Historic Developments is managed by a Delaware LLC, HRC Family Branch GP, an umbrella company that also covers other Crow assets like his private jet. The Delaware company’s CEO is Harlan Crow.

A Crow Holdings company soon began paying the roughly $1,500 in annual property taxes on Thomas’ mother’s house, according to county tax records. The taxes had previously been paid by Clarence and Ginni Thomas.

Crow still owns Thomas’ mother’s home, which the now-94-year-old continued to live in through at least 2020, according to public records and social media. Two neighbors told ProPublica she still lives there. Crow did not respond to questions about whether he has charged her rent. Soon after Crow purchased the house, an award-winning local architecture firm received permits to begin $36,000 of improvements.

Drawings illustrate some of the improvements made to Thomas’ mother’s home after Crow bought it. (Obtained by ProPublica)

Crow’s purchases seem to have played a role in transforming the block. The billionaire eventually sold most of the other properties he bought to new owners who built upscale modern homes, including the two vacant lots he purchased from Thomas.

Crow also bought the house immediately next door to Thomas’ mother, which was owned by somebody else and had been known for parties and noise, according to property records and W. John Mitchell, former president of a nearby neighborhood association. Soon the house was torn down. “It was an eyesore,” Mitchell said. “One day miraculously all of them were put out of there and they scraped it off the earth.”

“The surrounding properties had fallen into disrepair and needed to be demolished for health and safety reasons,” Crow said in his statement. He added that his company built one new house on the block “and made it available to a local police officer.”

Today, the block is composed of a dwindling number of longtime elderly homeowners and a growing population of young newcomers. The vacant lots that the Thomas family once owned have been replaced by pristine two-story homes. An artisanal coffee shop and a Mediterranean bistro are within walking distance. Down the street, a multicolored pride flag blows in the wind.

Do you have any tips on the courts? Justin Elliott can be reached by email at justin@propublica.org or by Signal or WhatsApp at 774-826-6240. Josh Kaplan can be reached by email at joshua.kaplan@propublica.org and by Signal or WhatsApp at 734-834-9383.

by Lisa Song, Kiah Collier and Maya Miller

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The Environmental Protection Agency proposed a series of major reforms this past week to slash toxic air pollution at chemical plants and facilities that sterilize medical equipment, nearly 18 months after ProPublica reported how an estimated 74 million Americans were exposed to elevated cancer risk from these businesses.

The first set of rules place stricter limits on roughly 80 air pollutants, according to EPA Administrator Michael S. Regan. The list includes potent cancer-causing chemicals such as ethylene oxide, which is used to sterilize medical equipment, and chloroprene, an ingredient in synthetic rubber. The proposal, which would affect more than 200 manufacturers, requires routine air monitoring around these chemical plants, something local communities have long requested.

Regan announced the first wave of changes last Thursday at a press conference in St. John the Baptist Parish, Louisiana. The area falls within an 85-mile stretch along the Mississippi River known as “Cancer Alley” due to its concentration of industrial polluters, many of which are located near communities of color.

“For generations, our most vulnerable communities have unjustly borne the burden of breathing unsafe, polluted air,” Regan said in a statement. “Every child in this country deserves clean air to breathe, and EPA will use every available tool to make that vision a reality.”

The EPA declined to make any agency employees available for an interview.

Environmental experts said the proposal is a huge step forward. The updated rules impose stricter health standards for emissions of chloroprene and ethylene oxide to reduce the risk of cancer residents face when they breathe pollution from chemical plants. The proposal also would require facilities to fix leaks and install devices to limit emissions from smokestacks, storage tanks and other equipment. If the new rules are adopted, the number of residents near these facilities who would be exposed to unacceptable cancer risk ultimately would drop by 96%, the EPA said.

“This is a very big announcement” that targets the largest and most hazardous chemical manufacturers, said Adam Kron, an attorney at Earthjustice. The group sued the EPA years ago to force them to update these rules in a more timely manner.

Beverly Wright, executive director of the Deep South Center for Environmental Justice, said in a statement that this was “the most significant rule I have seen in my 30 years of experience working in Cancer Alley.”

The American Chemistry Council, an industry trade group, said that it was reviewing the proposed new rules but signaled it was concerned about aspects related to ethylene oxide. “Overly conservative regulations on ethylene oxide could threaten access to products ranging from electric vehicle batteries to sterilized medical equipment,” the group wrote on its website. “We support strong, science-based regulations for our industry. But we are concerned that EPA may be rushing its work on significant rulemaking packages,” it added. “We will be engaging closely throughout the comment and review process.”

In 2021, ProPublica published a unique analysis of cumulative cancer risk from industrial air pollution nationwide. Using emissions data reported by the companies, we found that in some parts of Louisiana’s Cancer Alley, the added lifetime cancer risk from these chemicals was up to 47 times what the EPA considers acceptable. Many residents who live near multiple facilities face unacceptable cancer risks from combined emissions, yet the EPA rarely considers cumulative risk. Out of all the pollutants that the EPA regulates, ProPublica's analysis found, ethylene oxide is the most toxic, contributing to the majority of the excess cancer risk created by industrial air pollution in the United States.

Our work spurred reform, including additional air monitoring, two state cancer studies and the EPA’s rejection of a less stringent health standard for ethylene oxide. Weeks after we published our series, Regan said the agency would conduct a series of unannounced EPA inspections of major polluters. The EPA’s new proposed rules, though, go even further.

The agency’s proposal also requires many facilities to conduct air monitoring and make the resulting data publicly available. On top of limiting emissions of 80 pollutants, chemical plants for the first time would monitor for six chemicals — benzene, ethylene oxide, chloroprene, vinyl chloride, ethylene dichloride and 1,3-butadiene — at the fence line, or perimeter, of their facilities. If annual averages exceeded EPA guidelines, the companies would need to find and repair any leaks that were likely to have caused the excessive emissions.

Scott Throwe, a former EPA air pollution expert who now works as a consultant, said the EPA could have gone further by requiring direct, continuous monitoring of toxic air pollutants at the vents, smokestacks and other outlets where emissions are released.

Fence line monitoring only tells you that something is leaking, he said, and doesn’t help you identify the exact piece of equipment responsible. These facilities are so large that each plant may have thousands of potential leaky spots. “They’re not going to find it in five minutes and slap some Silly Putty on the leak and call it a day,” he said. If the EPA required direct monitoring at the source, he added, it would be much easier to pinpoint the culprit.

Despite the drawbacks, fence line monitoring could give regulators a new, straightforward tool to crack down on polluters. A neoprene manufacturer in LaPlace, Louisiana, has faced years of enforcement action from state and federal agencies, yet continues to emit high levels of chloroprene. The chemical can cause liver or lung cancer. Local emissions are so high that the EPA urged state regulators to evacuate students from the nearby Fifth Ward Elementary School last fall. The students have not been moved.

The plant, owned by Denka Performance Elastomer, already has chloroprene monitors at more than 20 locations along its perimeter. The new EPA proposal would regulate chloroprene concentrations at the fence line for the first time, using 0.3 micrograms per cubic meter as a limit. When annual concentrations exceed that, companies would need to reduce their emissions.

The data around the Denka plant from January 2022 to January 2023 shows that nearly all of the monitors exceeded this new proposed threshold. Monitors close to the school showed levels up to five times the limit. Denka didn’t respond to a request for comment. In February, the U.S. Department of Justice sued the company on behalf of the EPA to compel Denka to cut chloroprene emissions. Denka has denied many of the allegations and in a counterclaim said the EPA’s conclusions about the high cancer risks posed by chloroprene are “dead wrong.”

The new EPA rules don’t just apply to facilities that make chemicals. A second EPA proposal, announced Tuesday, would require 86 facilities across the country that use ethylene oxide for sterilizing medical supplies or fumigating spices to install equipment to reduce emissions of the cancer-causing gas. The EPA estimated the rule would reduce ethylene oxide emissions from the facilities by 80%. Both EPA proposals are open for public comment and could be finalized by next year.

Tuesday’s proposal is based on the latest EPA science on ethylene oxide. In 2016, the agency concluded the chemical was 30 times more carcinogenic to people who continuously inhale it as adults and 50 times more carcinogenic for those who are exposed since birth than the agency previously thought. Industry representatives have described the EPA’s conclusion as extreme and overly protective.

The prior regulations for sterilizing facilities were based on outdated scientific studies. The agency was supposed to review the rule for possible revision in 2014 and 2022, but missed both deadlines. A coalition of environmental groups, including the Laredo, Texas-based Rio Grande International Study Center, sued the EPA in December to speed up the timeline. The lawsuit is still pending. Laredo, a border city of 250,000, has been home to the most toxic commercial sterilizer in the country, according to the 2021 ProPublica analysis.

“Today, residents of Laredo are a step closer to breathing cleaner air,” said Laredo City Council member Vanessa Perez, who co-founded the Clean Air Laredo Coalition in 2021. “It’s the EPA’s mission to ensure our air is safe to breathe. We are relying on the EPA’s ruling to move the country in the right direction for environmental protection and justice.”

Owned by Missouri-based Midwest Sterilization Corporation, the Laredo plant released far more ethylene oxide on average than any plant of its kind in the country during the five-year period covered by ProPublica’s analysis.

In a statement, Midwest Sterilization said the company “sterilizes life-saving medical devices used in everyday medical procedures and surgeries.” The company said it “has been anticipating the proposed EPA rule and working hard to make changes ahead of its release to the public.” It added: “It’s important to note that most of the changes proposed by the EPA, have already been achieved by Midwest, or are currently being implemented.”

Environmental groups celebrated the release of the long-overdue proposal but also said it should be strengthened before it is finalized. They want the EPA to require fence line monitoring of ethylene oxide at sterilizing facilities (like the agency is proposing for chemical plants) and to expand the rule to cover emissions from off-site warehouses that also are a significant source of emissions. They also called for the EPA to phase out the use of ethylene oxide.

Last year, studies published by the Texas Department of State Health Services found that rates of three types of cancer associated with ethylene oxide exposure — breast cancer, all-age acute lymphocytic leukemia and extranodal non-Hodgkin lymphoma — were “significantly greater than expected” in Laredo given the population.

The ProPublica analysis found that the Laredo facility elevates the estimated lifetime cancer risk for nearly half of the city’s residents, including 37,000 children, to a level experts say is not sufficiently protective of public health. Among them is Yaneli Ortiz, who was diagnosed with acute lymphocytic leukemia in 2019. She had just turned 13 years old. Ethylene oxide should not be ruled out as a factor in Yaneli’s diagnosis given her proximity to the facility and its history of emissions, environmental health experts said, but it is impossible to definitively say whether exposure to the chemical caused her cancer.

After Yaneli underwent years of treatment that included a harrowing near-death experience, doctors recently told her and her parents that there are no signs of cancer in her body.

Still, Yaneli is dealing with the fallout from the side effects of her treatment, particularly from the havoc that the steroids wreaked on her hips, shoulders and knees. She underwent replacement surgery for her hip and left shoulder. Recently, her right shoulder has been hurting so much that the pain keeps her awake at night. Her mother anticipates that Yaneli will need at least two more surgeries to address the injuries. Nevertheless, she recently attended prom at Driscoll Children’s Hospital in Corpus Christi, where her cancer was treated. Now 16 years old, Yaneli spent a good part of the night dancing.

“It’s, like, a little bit of a relief,” Yaneli’s mother, Karla Ortiz, said when she heard the news about the proposed EPA rules. “It’s less risky for everyone else as well, so hopefully they won’t have to go through what we went through or other families went through.”

by Becca Savransky, Idaho Statesman, and Asia Fields, ProPublica

Leer en español.

In Idaho’s aging schools, students often wear jackets in the winter to keep warm in the classroom. In late spring, they sweat, struggling to concentrate. At some schools, bathrooms are regularly closed because of deteriorating pipes. At others, staff spend hours blowing snow off the roof to prevent its collapse.

State officials aren’t fully aware of the extent of the schools’ problems — the last full review of school buildings was done in 1993. It’s hard to repair even the problems that have been logged because in order to get funding for facilities, school districts in Idaho have to clear a higher bar than those in almost any other state.

The Idaho Statesman and ProPublica looked at the conditions inside one school, which has been in disrepair for decades. Now we want to report on school building conditions across the state and how they affect you. Photos and videos of issues in your school are especially helpful and will guide our reporting.

You can fill out our brief form below or send an email to idahoschools@propublica.org.

We may not be able to respond to everyone, but we read each submission. All of your contributions help fuel our work.

by Becca Savransky, Idaho Statesman, photography by Sarah A. Miller, Idaho Statesman

This article was produced for ProPublica’s Local Reporting Network in partnership with the Idaho Statesman. Sign up for Dispatches to get stories like this one as soon as they are published.

Do you have experience with Idaho’s public schools? Please get in touch.

Jan Bayer sank into the couch in the family room of her Bonners Ferry, Idaho, home and stared at her phone, nervously awaiting a call. Her twin teenage daughters were nearby, equally anxious.

It was election night in March 2022, and Bayer, the superintendent of the Boundary County School District in a remote part of Idaho on the Canadian border, had spent months educating voters about a bond that would raise property taxes to replace one of her district’s oldest and most dangerous buildings: Valley View Elementary School. Built just after World War II, the school was falling apart.

The walls were cracked. The pipes were disintegrating. The ceilings were water-stained. The electrical system was maxed out and the insulation was nearly nonexistent. Classrooms froze in the winter and baked in the summer. The roof, part of which had already collapsed once, was nearing the end of its lifespan. Outside, potholes pocked the parking lot and deep splits formed in warped sidewalks. The kindergarten playground, weathered from decades of brutal winters, had turned hazardous; at times, sharp screws protruded from some of the equipment, and kids routinely got splinters from the wooden crossbeams.

Most worrisome to Bayer and her staff: Kindergarten students had to cross a street multiple times a day just to navigate the sprawling six-building campus, a piecemeal attempt to add much-needed classroom space.

The bond promised to fix all that — if voters approved it.

“You’re just honestly praying for a miracle,” Bayer said. “I said a lot of prayers all day long, saying, ‘OK, we can do this. We can do this.’”

At about 8:30 p.m., a call came in from the county clerk. More than 2,000 people voted, and about 54% of them supported the bond, the clerk said. Bayer’s heart sank and she broke into tears. In Idaho, a majority wasn’t enough. The state is one of just two in the nation that require support from two-thirds of voters to pass a bond.

Bayer shared the results with the school board, school staff and the facilities committee. Over the next several hours, she received calls and messages from community members. They told her to keep fighting. So she did. The district put another bond on the ballot in August, and students rallied to support it. On Election Day, the high school football team even stood on the bridge over the Kootenai River and held yellow signs that read “Vote Yes for Kids,” hoping to persuade voters as they drove to the Boundary County Fairgrounds to cast their votes. But the second bond fared worse. Just over 40% of voters backed the new measure, which hit the ballot as residents received a notice that their property assessments were going to rise and voters were worried about tax increases. “It went down in a ball of flames,” Bayer wrote to the school board.

Boundary County School District Superintendent Jan Bayer points out that part of an exterior wall of a school building is made of glass blocks painted blue, which are not efficient for heating and cooling. The rest of the building is made of cinder blocks that came from a naval training station that was decommissioned in the 1940s.

No other state spends less on education per student than Idaho, according to a recent report from the U.S. Census Bureau, which surveys and ranks school finance systems. It also ranks last in the nation in terms of school infrastructure spending per pupil, a state report shows. So over the past several decades, rural districts across the state have faced the same challenge as Bayer: To improve or replace aging — and sometimes dangerous — facilities, they must appeal to local taxpayers and clear some of the nation’s most restrictive thresholds for school funding. Despite urgent needs, most of these efforts fail, an investigation by the Idaho Statesman and ProPublica has found. As a result, students across the state must learn amid dire conditions.

In one Idaho school, the foundation is crumbling. In another, so few bathrooms serve hundreds of kids that students have soiled themselves, according to school officials and local media. And in yet another, a portion of a roof recently failed during off-hours, sending water flooding into a classroom and bathrooms, destroying books and temporarily limiting learning space.

Since 2006, districts have mounted 217 bond attempts to remedy these types of problems and accommodate growing student populations. Had Idaho required only a majority of voters to support the measures — the threshold in most states — 83% of them would have passed. Instead, just 44% were approved, according to an analysis of bond measures and election data by the news organizations.

Like Boundary County, more than two dozen districts have tried to pass bonds and failed at least twice since 2006. Nine of those districts never succeeded during that time.

All of this matters not only for the safety and comfort of students but for their academic success. Research has shown that young people who learn in deteriorating or substandard facilities have worse educational outcomes than peers who learn in newer and functional buildings.

Superintendents say they have little choice but to patch up the issues they can see and hope it’s enough for now. But others fear that by trying to maintain buildings that need to be replaced, at best they’re wasting taxpayer dollars and at worst they’re risking an accident. “Do we keep putting a Band-Aid on something that’s broken?” said Troy Easterday, superintendent of the Salmon School District, which has tried and failed to pass a bond nearly a dozen times since 2005 in an effort to secure funding to build a new school. The district’s elementary school building, which is plagued by aging plumbing, uneven floors and a cracked foundation, is around 70 years old.

Education advocates and some lawmakers argue that the bond threshold should be lower.

By requiring support from two-thirds of voters, “you essentially allow the government to be operated through the tyranny of the minority,” said Mat Erpelding, a Democrat and former House minority leader who unsuccessfully tried to pass legislation in 2017 to start the process of lowering the threshold for passing bonds to 60%. Under that metric, about 62% of all bonds placed on the ballot since 2006 would have passed, compared to the actual passage rate of 44%, according to the Statesman-ProPublica analysis.

Some current legislative leaders, however, disagree with Erpelding’s assessment. “I think it needs to remain in place,” said state House Speaker Mike Moyle, a Republican who pointed out that the provision has been in the state’s constitution since its earliest days. “I think it’s a protection for the taxpayer.” And practically speaking, lowering the threshold would be difficult, requiring a constitutional amendment that would have to be approved by two-thirds of legislators and a majority of voters.

Gov. Brad Little has said he wants to invest more in education, and last year he signed a bill to allot $330 million to public education across Idaho. But much of that money will go toward increasing teacher pay and benefits as opposed to upgrading and replacing school facilities.

As a result, under the current system, rural districts like Boundary County continue to face a heavy fundraising burden; their communities are often poorer, smaller and less able to support tax increases than urban centers. At Valley View Elementary, for example, most students are from low-income families and about 10% are homeless, according to the State Department of Education. About three-quarters of the state’s districts are rural.

Boundary County covers a rural area at the top of the Idaho panhandle, along the Canadian border.

“If local taxpayers can’t afford to pay for those facilities, then those students have to do without and that does not meet the obligations put forward in the Idaho Constitution,” said Mike Journee, spokesperson for the state teachers union.

Connie Perez, who has taught at Valley View for more than three decades, said she does her best to adjust to the circumstances. But on some days, her mind drifts to the crack in the wall outside her fourth grade classroom. “That’s what scares me,” she said, “the big things that are going to happen.”

Decades of Legislative Neglect

As far back as 30 years ago, Idaho legislators were confronted with the state’s deteriorating schools. A statewide assessment funded by the Legislature found that districts needed nearly $700 million in repairs, expansions and upgrades. Seventy-one buildings were either deemed dangerous or had serious problems that needed immediate attention. In 1993, a member of the state facilities committee presented the findings to lawmakers. The Legislature, however, did little to address the issues.

A maintenance worker at Valley View Elementary points out a crack in a classroom support beam.

Valley View Elementary in Boundary County was one of those schools that were labeled as needing immediate attention. And without an influx of funds, things got worse.

Three years after the state assessment, the school’s gym roof collapsed during winter break, when students were home. The region had gotten slammed with a major snowstorm, and the building couldn’t handle the additional weight. No one was injured, but the staff was shaken. “It’s something you don’t want to ever see again, especially when you have kids,” said Bob Overman, the former maintenance director for the district, who had just walked out of the gym when the roof caved in. “It used to worry me all the time.”

Meanwhile, elsewhere in Boundary County, administrators struggled with overcrowded schools. Voters had previously rejected three bond measures for new facilities, so students temporarily had to go to school in shifts: high school in the mornings and middle school in the afternoons and evenings. It was a strain on parents, especially those who had kids in different grade levels.

In 1999, six years after the statewide facilities assessment, then-Gov. Dirk Kempthorne took another look at the schools. Of the 71 buildings in the worst shape, 18 had been shuttered and 53 remained in service. At the facilities still in use, the “average building condition score” had declined, meaning they still had problems that needed immediate attention, according to an update to the facilities report. Even some buildings that underwent renovations, like Valley View, which had to replace the portion of the building that collapsed, did not see changes in their overall scores.

Two buckets hang inside the ceiling at Valley View to collect water from leaking pipes.

Although the Legislature made some funding changes in the 1990s, in 2001 a judge presiding over a school funding case took issue with the state’s reliance on bonds, finding that a “system based upon loans alone is not adequate to meet the constitutional mandate to establish and maintain a general, uniform, and thorough system of public, free common schools.” Citing prior rulings, the court said that mandate includes providing a “safe environment conducive to learning.”

The following year, Kempthorne advocated improving school building safety and lowering the threshold for passing bonds, according to Idaho Statesman reporting. “It’s time to solve this problem,” he said.

In 2005, the state Supreme Court weighed in, agreeing with the lower court’s finding that the state’s funding system for school facilities was unconstitutional. It noted the struggles of several districts that had failed to clear the two-thirds bar to pass a bond, despite making multiple attempts.

While the court did not prescribe specific remedies, it told the Legislature that it was lawmakers’ responsibility to ensure that school facilities are properly funded.

Over the next two decades, the cycle would repeat itself: State leaders would recommend major changes to address school facilities — including lowering the bond threshold to 60% — and the Legislature would push back, offering instead modest investments. At least two bills to make it easier for districts to pass bonds went nowhere.

As recently as last year, a state report estimated that school facilities’ needs now stand at more than $800 million, a figure that researchers acknowledged was likely on the low end of the actual need.

“The Legislature never did fulfill its responsibility,” said Jim Jones, a former state Supreme Court justice who concurred, in part, on its 2005 decision. “They nipped around the edges here and there. But they never set up a system whereby the state took responsibility, or the primary responsibility, for funding, construction and maintenance. And that’s where we are now.”

Republican state Rep. Jason Monks disagreed, saying the Legislature had fulfilled its constitutional obligation but was still working to improve public education. “Are we doing the minimum? Yes,” said Monks, the former assistant House majority leader. “Can we do better? Yes. And should we do better? Yes. But I think we are providing at least a minimum that we’re required to.”

This year, in a nod to the struggles of school districts, lawmakers passed a property tax bill that allocated funds for districts to pay off bonds and levies. Districts will receive $65 million this fiscal year and about $79 million in the next fiscal year, according to estimates from the governor’s office. But, critics note, the legislation also eliminated an election day in March, one of the four dates on which districts could hold bond votes — and the one where districts have historically seen the most success.

State Rep. Julie Yamamoto, a Republican and the chair of the House Education Committee, said that the bill was a start but that lawmakers needed to do more to live up to their constitutional obligation to adequately fund school facilities. “We recognize that you can’t pass a bond to build, nor can you pass one to keep your buildings up,” she said in an interview. “We need to act.”

Meanwhile, in Boundary County, after two failed bonds, teachers and administrators are forced to deal with the conditions at Valley View Elementary, worrying about whether they can keep students safe in a building they can’t afford to change.

Conditions Affect Learning Drea Leach teaches her fifth grade students about fractions at Valley View.

Every September, at the beginning of the school year, Drea Leach gets to her fifth grade Valley View classroom by 6 a.m. Hoping to beat the heat, the teacher opens the windows and lets in the outside air. But with Idaho increasingly facing record-high temperatures, it’s rarely enough to keep the room bearable for the day ahead.

By 10 a.m., the classroom can reach 85 degrees, she said. Students start to sweat, fan themselves and shut down. “To try to get kids to sit in here and learn and focus when it’s 85 degrees is almost impossible,” said Leach, who used her own money to provide a water cooler for students.

Boundary County teachers and administrators say there is little they can do with scant resources. Unlike schools in wealthier, urban communities like Boise, Valley View has no air conditioning, and bringing in AC units for the classrooms — like schools in the city of Nampa did last fall when its old units failed — isn’t an option. It would overload the electrical system, which is at capacity.

First image: Students arriving early for breakfast on a January morning keep their winter coats on even after they get inside. Second image: A third grader wears snow pants during a lesson.

Winters present similar challenges. Aging cinder block walls provide little buffer against the cold, and the heating is inefficient and expensive to run. Leach has tripped the breaker by plugging in a space heater, so students are often forced to bundle up for instruction. Indeed, on a 36-degree January day, the Statesman and ProPublica observed students wearing their jackets and snow pants during class. The classroom can get so cold, Leach said, that she simply places her lunch on the floor near the outside wall to keep it cool. “It actually refrigerates itself,” she said.

Teachers often turn to Steve Bortz, Valley View’s head of maintenance. For the past seven years, he’s spent his days fielding calls from staff members about leaking ceilings, clogged drains and cracked walls. When the area gets big snowstorms, he spends hours blowing snow off the roof to prevent collapse. On a recent tour, he removed a hallway ceiling tile to reveal how he deals with leaks: buckets attached with tape to catch water. When he sees new cracks in the walls, he fills them, hoping to block drafts. “All I’m able to do is just try to take care of the situation as best as we can,” he said in an interview. “Most of the stuff I end up doing now is cosmetic.”

Steve Bortz is in charge of maintenance at Valley View. First image: ​​A Valley View maintenance worker removes ceiling tiles to look at a crack in a support beam above a classroom. Second image: Bortz makes notes of maintenance that needs to be done in one of the school’s bathrooms, which often need work because of an outdated plumbing system.

These kinds of conditions can impact learning. In 2017, researchers from the Harvard T.H. Chan School of Public Health, after reviewing more than 200 scientific studies, reported that temperatures can affect test scores and that poor ventilation is linked to fatigue and shorter attention spans. In interviews with the news organizations, seven teachers and staff members at Valley View complained about losing teaching time each month due to the school’s age and layout.

Notably, in addition to the climate challenges, students must travel between six buildings throughout the day — an unusual design implemented decades ago to deal with overcrowding. The distance between buildings is particularly hard on kindergarten students, who cross a street at least four times a day to get to lunch, to gym class and to the library.

Kindergarteners cross the road between their classroom building and the main campus multiple times each day.

Traveling back and forth during winters when the ground is covered with snow and ice can be dangerous. Administrators say a boy who uses a walker has tripped on the broken sidewalk and was injured.

Administrators say it’s only a matter of time before the school will experience another crisis. Valley View’s plumbing system, for instance, is made up of clay and galvanized pipes, which are collapsing after more than seven decades of use. A “catastrophic failure” could render the bathrooms inoperable, Bayer said. If that happens, the main school building would have to shut down. To many teachers, the solution is clear: a new building.

“All we would have to worry about are the students. That would be our sole job,” said Teresa Smith, a second grade teacher. “We wouldn’t have to worry about the cracks or the ceilings or the bathrooms or them going in and out without supervision. We wouldn’t have to worry about any of that, just their education.”

A Call for State Intervention

On a cold night in January, Bayer faced the Boundary County school board. On the agenda was Valley View Elementary.

Bayer, second from right, told the school board that the district’s facilities committee recommended asking the state for help repairing Valley View Elementary.

The district had done what it could by pitching bonds to voters, Bayer said. But twice, too many taxpayers said no. “I don’t know what else to do to convince the public that we need a new school,” Bayer told the board.

First image: Water seeps across the floor in the boiler room. Second image: Kindergarteners use a playground next to their building, which is located across the street from the rest of the campus.

She then summarized the findings of the district’s facilities committee, which considered four potential courses of action, all of them grim: Do nothing while the conditions at Valley View deteriorate more; start making repairs, knowing they would be throwing money at a crumbling building; put another bond on the ballot; or ask voters to approve funds through a different kind of measure, known as a plant facilities levy. But even that levy would present challenges — while it could pass with less overall support than a bond, it could also result in much higher taxes for property owners right away and fewer funds for the school up front, meaning the district would need to attempt to build a new school in phases.

The group chose none of them. Instead, it recommended that the school board bring in the state.

As Bayer relayed this information to the room that night, board members shook their heads and covered their faces with their hands. Since 2006, Idaho has stepped in only twice to help school districts repair their schools. That help came at a price: a state loan, which was paid back by local residents through tax increases they didn’t agree to. Even then, in one case, the state covered only certain repairs and wouldn’t fund a new school, leaving the district with many of its problems still unresolved, The Associated Press reported.

That night, seeing no other choice, the Boundary County school board approved a plan to ask the state to intervene.

A state inspector will now determine the severity of Valley View’s issues, Teresa Rae, the board’s vice chair, told the Statesman and ProPublica. If the school is deemed unsafe, the district could ultimately apply for a state loan. Local leaders, however, are asking for more guidance from the state.

“Just tell us what to do. You created this mess,” Rae said at the board meeting. “You make it so difficult that you can’t pass a bond, yet you don’t fund facilities. … You tell us what to do.”

Had they just needed a simple majority to pass a bond, she said, “we’d already be building.”

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