WHICH STORM IS NEXT?

Last week, I visited the Black Hills of South Dakota. It was a few days after the great Blizzard of 2013, which buried the area with up to 55 inches of heavy, wet snow. THe snow, of course, was water in the form of partial liquid and partial solid.

The blizzard had a huge impact on human activity throughout the Hills. Residents and tourists became homebound or snowbound. Due to the amount and weight of the snow, clearing went slowly. Thousands of cattle died in the storm, to ranchers economic dismay.

Of course, we have witnessed before the serious impacts water can have due to hurricanes, floods and the like. But what particularly was revealing to me was the blizzard's impact on the natural environment. Throughout the Hills, the countless tons of wet snow snapped tall pine trees, leaving long severed trunks with jagged tops pointing to the sky like arrows defending the earth. In addition, the snow burden bent aspen and birch, still dressed in autumnal golden leaves, as well as young pines, bent 180 degrees to the ground creating arches, never to spring erect again.

What a paradox, I mused! These trees all need water to grow and live, but water destroyed them.

I had just finished reading a book on the impacts on life in Central and Eastern Europe under the nazi and later communist eras.* Looking at the landscape, I saw history in those broken trees. During those over 60 totalitarian years, people--like the aspen, birch and young pines-- were bent to the ground in subjugation by their authoritarian regimes. And, many people, like the tall pines, were snapped in the entirety.

But, there is a big difference in the two situations. The bent and broken trees were caused by Nature creating benefits to thin the forests, create meadows and provide much needed water for new growth. Bent and broken people were caused by man's inhumanity to mankind.

_____________________________________________________________________________

*"Border Crossings", by Charles Novacek, Ten21 Press (2012)

HALLOWEEN LEGALITIES

I brake from water topics for holidays. So, I was wondering what the case law may have said about some of the traditions surrounding Halloween.

VLAD, THE IMPALED

A drama club at a Texas university decided to produce the play "Dracula". In one of the final scenes of the play, Harker is to impale Vlad Dracula with a knife. Because a real knife was being used, the actor portraying Dracula wore a stab pad with a visible target strapped to his chest. In the performance, the actor portraying Harker missed the stab pad and stabbed the actor portraying Dracula in his chest. Dracula did not realize he had been stabbed. He entered into a coffin, which then was closed. In the darkness of the coffin, he discovered he was bleeding. The play continued, and Dracula emerged from the coffin with the bloody knife. However, he began to feel weak. The script called for Dracula to die in the arms of his love, Mina the Maiden. Instead of saying goodbye to Mina, he whispered to her to go call an ambulance. Mina ran off to call paramedics. Dracula "cut the final act short by giving a short ad-libbed soliloquy and quickly exiting the stage", according to a lower court. The actor portraying Dracula sued several parties, including the university. The Texas Supreme Court reversed a judgment against the university. (1)

WHICH WITCH?

The maker of a craft witch design sued the maker of a witch figure for alleged copyright infringement. Plaintiff sold a design to consumers who then were to make a witch figure which looked like it had just crashed into a tree. The design called for consumers to use plywood for the figure's body/clothing, hat, socks and boots; a mop for the hair; and a black plastic trash bag for the cape. The design further suggested how consumers should paint the plywood..." Defendant produced a witch figure on a broom that appeared to crash into a tree. "The figures are finished products made from refined materials, with detailed features such as molded plastic hands, socks and boots; silk-like hair; molded-foam arms, legs and body; and fabric hat, clothing, and cape." The court held that there was no infringement. (2)

HOLDING THE BAG

Plaintiff sued, alleging infringement of its patent for a pumpkin leaf bag. "The products in dispute are oversize orange plastic bags which are tucked at the bottom and imprinted with black graphics; when stuffed with dry leaves or crumpled newspapers, the products simulate giant jack-o-lanterns suitable for decorating a lawn during the Halloween season." According to the court, plaintiff's bag had a scary face on one side and a happy face on the other, whereas defendant's bag had a face on only one side, had a different bottom closure and lacked vertical black lines. The court held for plaintiff. (3)

SPIDERS, BATS, GHOSTS AND BLACK CATS

An importer of women's sweaters challenged federal Custom's classification of the sweaters as "sweaters" rather than as "festive articles." The spider sweater depicted webs around the collar and sleeves with a spider dangling from the collar. The court held that it was a festive article because it "is sold exclusively during the festive occasion for Halloween and that it is used principally during Halloween." The court made similar rulings as to sweaters depicting bats and ghosts. However, the court held that sweaters showing black cats were not festive articles, because black cats are not so intrinsically linked to Halloween. (4)

HE'S ALIVE!

A Ohio court recently held that a man who appeared in court is legally dead and cannot become legally alive again. Allegedly, the man became legally dead eight years after he disappeared and the time limit for reversing that death ruling had expired. The man sought to reverse his death ruling to reinstate social security and driver's license benefits. The judge is quoted as saying "I don't know where this leaves you, but you're still deceased as far as the law is concerned." Unclear is whether the man must pay income taxes and comply with the Obamacare mandate. At any rate, he appears to be one of the living dead! (5)

Have a Happy and Legal Halloween!

_____________________________________________________________________________

(1) Texas A & M University v. Bishop, 156 S.W.2d 580 (Tex.2005)

(2) Winfield Collection v. Gemmy Industries, US Ct. App. 6th Cir. (2005)

(3) Sun Hill v Easter Unlimited, 831 F.Supp.1024 (E.D.N.Y.1993)

(4) Michael Simon Design v. United States, 452 F.Supp.2d 1316 (Ct.Int.Trade 2006)

(5) Dunn, Courier.com, Findlay, Ohio, October 8, 2013

MANAGEMENT BY COMMON SENSE

According to Thomas Jefferson, "the art of governing consists simply of being honest, exercising common sense, following principle, and doing what is right and just." It is good advice for all levels of management, from the office of U.S. President to the president of the smallest water utility.

Emphasis can be on the element of "common sense." As Jefferson also said, +common sense is the foundation of all authorities, of the laws themselves, and of their construction." So, exactly what is "common sense?" Can it be defined? How does it play in management of a water utility, for example?

Recently, I attended a lecture by Yale Professor John Gaddis on the decision-making strategy of "common sense". In particular, he discussed the importance of using common sense to achieve ultimate goals by explaining the classic comparison of foxes and hedgehogs. A fox tends to run in several different directions, without ever reaching a specific goal or objective. On the other hand, a hedgehog tends to stubbornly pursue a goal but cannot change direction when confronted with an obstacle to that goal.

Professor Gaddis cited Lincoln as using common sense to achieve the end to slavery in the United States. Like a hedgehog, Lincoln's single-minded goal, often disguised, was to end slavery. But he was as a fox in pursing that goal by employing smaller steps and necessary modifications of direction.

Professor Gaddis also pointed out that common sense in management, whether on the Presidential level or otherwise, is to have a goal or objective, and to have a plan which anticipates likely obstacles to that goal and provides proposed actions to circumvent those obstacles. Part of such a strategy will include the employment of compromise.

Clearly, common sense is relevant to water utility management. I will give an example. Years ago, a water utility initiated a rate case with the regulatory agency. The utility had not sought a rate increase for many years. In the meantime, inflation had caused a substantial increase in operating expenses and the utility had made a large addition to its infrastructure. As a result, the utility sought a 100% increase in its rates. Customers and agency staff objected to such an increase and attacked the quality of service. Even though the 100% rate increase could be justified by the numbers, a negative perception of the utility resulted in the regulatory agency denying any increase in rates. Common sense should have dictated that the delay in seeking rate relief was a mistake; that a much lower increase should have been requested; and the utility should have offered to compromise by proposing steps such as a phase-in of higher rates or a lesser increase.

In contrast, another water utility annually performed a review of its revenue requirements and filed a rate case with the regulatory agency every two years. As a result, despite the effects of inflation and increased plant, rate relief requested generally was in the 5% to 10% levels. The utility's goal was to recover revenue requirements and its plan was to avoid rate shock and customer objections. The utility also met with media, public officials and customer groups in advance of a rate filing to explain the reasons for a rate increase. Consequently, the perception of that utility by both the regulatory agency and the customers was positive.

So, what is common sense in management? It seems to be: to have a goal; to have a plan that anticipates obstacles to that goal and provides steps to overcome those obstacles to the goal; to employ compromise as part of that plan; and to be aware of how others perceive management as a potential obstacle or aid to reaching the goal.