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OPENING BRIEF
MUTUAL AID SOCIETY OF AMERICA, INC. 103 Methodist St., Cecilia, KY 42724 Cell: 270-307-4857; Office: 270-862-4537 Skype: 270-872-4493; Fax. 270-862-4379 email: jimmiller5417@gmail.com
July 21, 2011
Disputes Decision Official, Marcy Toney,
(toney.marcy@epa.gov) with a cc: to Mike Russ (russ.michael@epa.gov).
Re: Notice of Dispute on behalf of Mutual Aid Society of America, Inc.; Opening Brief. Dear Ms. Toney: On June 27, 2011, I filed, via email, the following Notice of Dispute on behalf Mutual Aid Society of America, Inc, and on my behalf, as instructed by James Schardt:
From: Jim Miller <jimmiller5417@gmail.com>
Date: Mon, Jun 27, 2011 at 11:26 PM
Subject: Dispute pertaining to Grant EPAGLNPO-2011-IS-2-1680-1356
To: toney.marcy@epa.gov
Cc: russ.michael@epa.gov
Disputes Decision Official, Marcy Toney,
(toney.marcy@epa.gov) with a cc: to Mike Russ (russ.michael@epa.gov).
Mutual Aid Society of America, Inc., (Applicant) by James E Miller, its President (Miller) and James E. Miller, individually, hereby dispute the denial of consideration for award and denial of any award in connection with Applicant's application to EPA pertaining to Grant EPAGLNPO-2011-IS-2-1680-1356 Applicant further disputes selection for award consideration of awards and to all awards to all other applicants for Category 2.B of the EPA's 2011 Great Lakes Restoration Initiative Request for Applications Please inform me by return email, the URL for all of the administrative procedures governing the handling of this dispute, including discovery rights, right to appeal to a high agency level, appeal to tribunals and review by a Federal District Court. I further request the citation to Federal Statues and Code of Federal Regulations which govern the procedure and substantive facts upon which EPA relied in denial of the said application by MASA.
James E. Miller, individually and as President of Mutual Aid Society of America, Inc. I have just received from Mike Russ, copies of five of the ten or so applications submitted to EPA for Category I. 2. B. I have asked Mr. Russ to furnish all of the SF 424, SF 424A and Narrative Statements for the remaining applications under I. 2. B. As to the five applications I have reviewed, EPA should reject or rate lower, the five applications identified as follows, in favor of the MASA application: Regents of the University of Minnesota, Sea Grant Program, $400,000: Habitattitude: This part of the grant application mentions a public relations program against Goldfish, Koi, Brazilian eloda, water hyachinth and red swamp crayfish. No program of public relations was listed relative to Asian carp. Public Relations efforts in Minnesota does not depopulate Asian carp in the Mississippi River Basin National Waters (MRBNW), which is the source of the likely invasion into the Great Lakes. Nab the Aquatic Invaders: This part of the grant application mentions climate change several times which is irrelevant to prevention of Asian carp invading the Great Lakes from the MRBNW. There was no action plan relative to Asian carp. Stop Aquatic Invaders. This part of the grant application looks to aquatic gardening and pet aquariums in Minnesota as a potential source of plants and also mentions climate change. Again, there was no action plan to prevent Asian carp from invading the Great Lakes. University of Notre Dame: Invasive Species Bait Trade: $273,309: This grant application proposes surveillance of live bait traders by visual inspection and DNA sampling. It mentions ballast water, although nothing is said how live bait traders have any relationship to ballast water. It mentions sourcing of live bait from producers in the MRBNW and the practice of fisherfolk using live bait to dump the unwanted bait into the waters in which they are fishing. The DNA sampling is one to four hours or more after the sample is taken, hardly a timely effort to prevent the sale of the bait. The application mentions posting signs at the bait dealer locations warning against the use of small Asian carp fish as bait, yet admit that at the small size, it is very difficult for the experts to identify the small Asian carp. The application simply proposes more of the same work it has previously done for USACE and others, only for more money and over a longer period of time. Nothing in the application suggest any action plan to depopulate the Asian carp in the MRBNW. Little Traverse Bay Band of Odawa Indians, Paradise Lake Pilot Boat Washing Station, Harbor Spring, MI, $385,203: This application does not even mention Asian carp. Wisconsin Department of Natural Resources, Reducing Invasive Live Organisms in Trade in the Great Lakes Watershed, $385,307: No Asian carp are mentioned. Nothing is mentioned as to where the boats might have been so as to pickup invasive organisms. Paul Smith's College, Paul Smith, NY, Eastern Lake Ontario Headwaters Watercraft Inspection Program: $332,869: No carp is mentioned. The pattern of these five applications shows that they are from well established government institutions or government supported institutions of higher learning. No action plan is presented as to how the efforts listed will actually prevent the invasion of Asian carp into the Great Lakes. There is no quantification even suggested. Mutual Aid Society of America, Inc. (MASA), quantified the depopulation, based on 4,000 pounds an hour, 12 hours a day, five days a week, 50 weeks a year for a total of about 12 million pounds of fish of which about 90% would be Asian carp. MASA sought by its application $300,000 to carry the design criteria already established into scaled, working drawings and specifications and the submission of such to the chief regulatory authority, the U. S. Coast Guard. The funding would also produce the working drawings and specifications for the location and construction of the Carp Catchers Cooperative Commercial Fishery shipyard. The amount requested, $300,000 is clearly in line with the funds requested by the five applications. The application listed the existing team of James E. Miller, (BS in Agricultural Operations Technology); J. Garrett Smith, PE, mechanical engineer; and Shams Rehman, BS and MS in Computer Science. Scopes of work, hours, rates of pay and a cap for these professionals as well as for an electrical engineer, fish biologist, purchasing agent, and marketing team were provided. All of the other matters required for the Narrative Statement were as well if not better covered than were covered by the five applications. The MASA application was focused on the Big Head and Silver carp which are the almost the exclusive fish threats to the Great Lakes. The competing five applications are not worthy of the funding requested in that none of the focuses are on the largest and most urgent threat, that of the Asian carp invasion into the Great Lakes and their tributaries, including international waters. Most of the AIS (other than carp) have been in the Great Lakes for many years and while efforts are continuing, nevertheless are not as much a threat to the 7 billion dollar Great Lakes fishery nor to the 6 billion dollar tourist trade, as are the Asian carp. The MASA application for the Carp Catchers Cooperative Commercial Fisher was the only one submitted which dealt with the depopulation of the Asian carp, and it did so in significant quantities. Mention was also made that as many as four fleets of three ships each would likely be needed to cover the Mississippi River all of its tributaries, resulting in capture of 48 million pounds of fish with the proviso that all fish be sorted onboard the Carp Avengers (the fish harvesters), with all of the native fish being returned immediately to the river, alive and unharmed. This process would likely change the ratio of Asian carp to native fish from 20:1 in the Illinois River to 1:1 or less. That effort would greatly reduce the threat of invasion to the Great Lakes. It is estimated that 95% of the fish biomass in the Illinois River are Asian carp. With so many prolifically breeding Asian carp so close to the Great Lakes, and given that they can breach the USACE DC electrical barrier, the most prudent method of depopulation of Asian carp in the MRBNW is by way of supporting commercial carp fisheries. This recommendation was the major one made by over 200 scientists and fish biologists who rendered the Task Force report quoted in the MASA application. Since no other application was made for the harvesting of Asian carp, the MASA application should be granted the next review stage rather than summarily dismissed. It appears, at this point in time, that the EPA does not want an effective solution to the threat of Asian carp invading the Great Lakes. It is also interesting to note that the State of Illinois, which has thus far won the two Supreme Court decisions, appropriated two million dollars to enhance the commercial carp fisheries and processing plants in Illinois. The Obama Administration set-aside 78.5 million dollars to fight the Asian carp invasion from the 475 million appropriated for the restoration of the entire Great Lakes. Consider this: should the Asian carp establish a breeding population in the Great Lakes and its tributaries in the U.S. and in Canada, Canada could easily win its case against the United States government in an international tribunal and collect damages for the harm done to the Canadian fisheries and eco-systems. By then, the cost of removing the Asian carp from U.S. and Canadian waters will amount to untold billions of dollars. If EPA lacks the wisdom and foresight to make awards to companies like MASA which has as its mission the depopulation of Asian carp in the MRDNW, the EPA should withdraw from the field of battle and let some other agency take the lead and do the job right the first time. When I receive the balance of the FOIA disclosures, I will file a supplement to this “brief”. Please acknowledge receipt of the Notice of Dispute previously emailed to you, this email, and advise me of the procedures to be following at this level of review and my additional appeal rights so I may exhaust all administrative remedies. Respectfully submitted, James E. Miller, individually and as President of Mutual Aid Society of America, Inc. July 21, 2011
July 21, 2011
Disputes Decision Official, Marcy Toney,
(toney.marcy@epa.gov) with a cc: to Mike Russ (russ.michael@epa.gov).
Re: Notice of Dispute on behalf of Mutual Aid Society of America, Inc.; Opening Brief. Dear Ms. Toney: On June 27, 2011, I filed, via email, the following Notice of Dispute on behalf Mutual Aid Society of America, Inc, and on my behalf, as instructed by James Schardt:
From: Jim Miller <jimmiller5417@gmail.com>
Date: Mon, Jun 27, 2011 at 11:26 PM
Subject: Dispute pertaining to Grant EPAGLNPO-2011-IS-2-1680-1356
To: toney.marcy@epa.gov
Cc: russ.michael@epa.gov
Disputes Decision Official, Marcy Toney,
(toney.marcy@epa.gov) with a cc: to Mike Russ (russ.michael@epa.gov).
Mutual Aid Society of America, Inc., (Applicant) by James E Miller, its President (Miller) and James E. Miller, individually, hereby dispute the denial of consideration for award and denial of any award in connection with Applicant's application to EPA pertaining to Grant EPAGLNPO-2011-IS-2-1680-1356 Applicant further disputes selection for award consideration of awards and to all awards to all other applicants for Category 2.B of the EPA's 2011 Great Lakes Restoration Initiative Request for Applications Please inform me by return email, the URL for all of the administrative procedures governing the handling of this dispute, including discovery rights, right to appeal to a high agency level, appeal to tribunals and review by a Federal District Court. I further request the citation to Federal Statues and Code of Federal Regulations which govern the procedure and substantive facts upon which EPA relied in denial of the said application by MASA.
James E. Miller, individually and as President of Mutual Aid Society of America, Inc. I have just received from Mike Russ, copies of five of the ten or so applications submitted to EPA for Category I. 2. B. I have asked Mr. Russ to furnish all of the SF 424, SF 424A and Narrative Statements for the remaining applications under I. 2. B. As to the five applications I have reviewed, EPA should reject or rate lower, the five applications identified as follows, in favor of the MASA application: Regents of the University of Minnesota, Sea Grant Program, $400,000: Habitattitude: This part of the grant application mentions a public relations program against Goldfish, Koi, Brazilian eloda, water hyachinth and red swamp crayfish. No program of public relations was listed relative to Asian carp. Public Relations efforts in Minnesota does not depopulate Asian carp in the Mississippi River Basin National Waters (MRBNW), which is the source of the likely invasion into the Great Lakes. Nab the Aquatic Invaders: This part of the grant application mentions climate change several times which is irrelevant to prevention of Asian carp invading the Great Lakes from the MRBNW. There was no action plan relative to Asian carp. Stop Aquatic Invaders. This part of the grant application looks to aquatic gardening and pet aquariums in Minnesota as a potential source of plants and also mentions climate change. Again, there was no action plan to prevent Asian carp from invading the Great Lakes. University of Notre Dame: Invasive Species Bait Trade: $273,309: This grant application proposes surveillance of live bait traders by visual inspection and DNA sampling. It mentions ballast water, although nothing is said how live bait traders have any relationship to ballast water. It mentions sourcing of live bait from producers in the MRBNW and the practice of fisherfolk using live bait to dump the unwanted bait into the waters in which they are fishing. The DNA sampling is one to four hours or more after the sample is taken, hardly a timely effort to prevent the sale of the bait. The application mentions posting signs at the bait dealer locations warning against the use of small Asian carp fish as bait, yet admit that at the small size, it is very difficult for the experts to identify the small Asian carp. The application simply proposes more of the same work it has previously done for USACE and others, only for more money and over a longer period of time. Nothing in the application suggest any action plan to depopulate the Asian carp in the MRBNW. Little Traverse Bay Band of Odawa Indians, Paradise Lake Pilot Boat Washing Station, Harbor Spring, MI, $385,203: This application does not even mention Asian carp. Wisconsin Department of Natural Resources, Reducing Invasive Live Organisms in Trade in the Great Lakes Watershed, $385,307: No Asian carp are mentioned. Nothing is mentioned as to where the boats might have been so as to pickup invasive organisms. Paul Smith's College, Paul Smith, NY, Eastern Lake Ontario Headwaters Watercraft Inspection Program: $332,869: No carp is mentioned. The pattern of these five applications shows that they are from well established government institutions or government supported institutions of higher learning. No action plan is presented as to how the efforts listed will actually prevent the invasion of Asian carp into the Great Lakes. There is no quantification even suggested. Mutual Aid Society of America, Inc. (MASA), quantified the depopulation, based on 4,000 pounds an hour, 12 hours a day, five days a week, 50 weeks a year for a total of about 12 million pounds of fish of which about 90% would be Asian carp. MASA sought by its application $300,000 to carry the design criteria already established into scaled, working drawings and specifications and the submission of such to the chief regulatory authority, the U. S. Coast Guard. The funding would also produce the working drawings and specifications for the location and construction of the Carp Catchers Cooperative Commercial Fishery shipyard. The amount requested, $300,000 is clearly in line with the funds requested by the five applications. The application listed the existing team of James E. Miller, (BS in Agricultural Operations Technology); J. Garrett Smith, PE, mechanical engineer; and Shams Rehman, BS and MS in Computer Science. Scopes of work, hours, rates of pay and a cap for these professionals as well as for an electrical engineer, fish biologist, purchasing agent, and marketing team were provided. All of the other matters required for the Narrative Statement were as well if not better covered than were covered by the five applications. The MASA application was focused on the Big Head and Silver carp which are the almost the exclusive fish threats to the Great Lakes. The competing five applications are not worthy of the funding requested in that none of the focuses are on the largest and most urgent threat, that of the Asian carp invasion into the Great Lakes and their tributaries, including international waters. Most of the AIS (other than carp) have been in the Great Lakes for many years and while efforts are continuing, nevertheless are not as much a threat to the 7 billion dollar Great Lakes fishery nor to the 6 billion dollar tourist trade, as are the Asian carp. The MASA application for the Carp Catchers Cooperative Commercial Fisher was the only one submitted which dealt with the depopulation of the Asian carp, and it did so in significant quantities. Mention was also made that as many as four fleets of three ships each would likely be needed to cover the Mississippi River all of its tributaries, resulting in capture of 48 million pounds of fish with the proviso that all fish be sorted onboard the Carp Avengers (the fish harvesters), with all of the native fish being returned immediately to the river, alive and unharmed. This process would likely change the ratio of Asian carp to native fish from 20:1 in the Illinois River to 1:1 or less. That effort would greatly reduce the threat of invasion to the Great Lakes. It is estimated that 95% of the fish biomass in the Illinois River are Asian carp. With so many prolifically breeding Asian carp so close to the Great Lakes, and given that they can breach the USACE DC electrical barrier, the most prudent method of depopulation of Asian carp in the MRBNW is by way of supporting commercial carp fisheries. This recommendation was the major one made by over 200 scientists and fish biologists who rendered the Task Force report quoted in the MASA application. Since no other application was made for the harvesting of Asian carp, the MASA application should be granted the next review stage rather than summarily dismissed. It appears, at this point in time, that the EPA does not want an effective solution to the threat of Asian carp invading the Great Lakes. It is also interesting to note that the State of Illinois, which has thus far won the two Supreme Court decisions, appropriated two million dollars to enhance the commercial carp fisheries and processing plants in Illinois. The Obama Administration set-aside 78.5 million dollars to fight the Asian carp invasion from the 475 million appropriated for the restoration of the entire Great Lakes. Consider this: should the Asian carp establish a breeding population in the Great Lakes and its tributaries in the U.S. and in Canada, Canada could easily win its case against the United States government in an international tribunal and collect damages for the harm done to the Canadian fisheries and eco-systems. By then, the cost of removing the Asian carp from U.S. and Canadian waters will amount to untold billions of dollars. If EPA lacks the wisdom and foresight to make awards to companies like MASA which has as its mission the depopulation of Asian carp in the MRDNW, the EPA should withdraw from the field of battle and let some other agency take the lead and do the job right the first time. When I receive the balance of the FOIA disclosures, I will file a supplement to this “brief”. Please acknowledge receipt of the Notice of Dispute previously emailed to you, this email, and advise me of the procedures to be following at this level of review and my additional appeal rights so I may exhaust all administrative remedies. Respectfully submitted, James E. Miller, individually and as President of Mutual Aid Society of America, Inc. July 21, 2011
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