Deadbeat Dico cuts a good deal on bad land as the Feds let polluter off a $6 million hook.

9/30/2020

It pays to be a scofflaw.

The proposed consent decree between the federal government and Dico — a decree in which the City of Des Moines would end up owning those 43 acres of polluted wasteland at the corner of MLK Parkway and 16th Street — is a great deal for Dico.

It’s a lousy deal for the federal taxpayers.

And it’s a — who knows yet — deal for Des Moines.

At the least, the wasteland at the western entrance to downtown might no longer be an eyesore, if the deal is approved by the court. At the best, the city can find some safe use for the land, which is a hazard to man and beast and apparently will stay that way. It’s not going to be a place where you’d want your children to frolic or your grandparents to stroll.

The only thing that’s clear is that the Environmental Protection Agency wants to reward Dico for being a polluter, for being a deadbeat, and for thumbing its nose at the federal court system.

Background: In 1993, Dico’s parent, Titan Tire Corp., bought a company called Di-Chem, which ran a chemical business on the site and which Titan rechristened as Dico. In 1974, the government had detected a dangerous chemical, TCE, in water coming from wells near the site, and in 1994 part of the site was cleaned up by Dico and five large corporations that were customers of Di-Chem. Dico closed the facility in 1995.

Subsequently, the Environmental Protection Agency sued Dico for costs the government incurred in further cleanup of the site. In 2000, Dico lost. Then, years later, the EPA sued again, alleging Dico had sold off some building materials that it knew were contaminated by dangerous PCBs in another attempt to sidestep the cleanup of the property. The unknowing buyer had moved the materials to his property in Ottumwa. In 2017, Dico lost that suit, too.

Dico “chose to disregard the risks to human health and the environment” in breaking the law, Federal Judge Robert Pratt ruled.

All told, Dico has lost judgments totaling $16,658,166.27, plus interest that totaled about $675,000 as of the other day.

Now, Dico and the federal government are proposing settling everything — taking Dico and Titan off the hook for the judgments and interest and relieving it of all further clean-up responsibility — for about $11.5 million, most of which will go to the EPA to pay for past clean-ups in Ottumwa and Des Moines. That’s about $6 million less than it owes.

What’s more, the government says that Dico — nothing if not a deadbeat — can pay on the installment plan.

The deal, approved in a unanimous vote with little discussion by the City Council the other day, is subject to the approval of Pratt. If the deal goes through, Des Moines ends up with title to the land, which is a gateway to downtown, a site that would look to be a prize for developers who have been marching up MLK with apartments and condos and businesses for the past few years. Except: The site isn’t good for much.

The proposed consent decree bars the use of the property for “first-floor residential occupancy, such as single-family homes or duplexes, or day-care facilities, elder-care facilities, nursing homes, or hospitals.” The property may be used “for commercial or recreational” purposes, and developers could put up apartment buildings — though, again, without first-floor residences.

[Question: If you can’t live on the first floor, why is it safe to bank on the first floor, or play sports on the ground, or work or eat at a cafe at street level?]

And “groundwater at the property shall not be consumed or otherwise used for any purpose, except as approved by the EPA.”

And the asphalt cap, which covers much of the area, can be breached only in specific circumstances, making construction difficult.

And if a building is built, “to prevent or minimize exposures to soil gas vapors, any building or structure planned for human occupancy…shall include an appropriate vapor barrier or vapor mitigation system.”

So Des Moines gets a big chunk of polluted land that can be prettied up but that is of limited use. The city estimates it will have to spend $500,000 to demolish two of the dilapidated buildings and $250,000 annually to operate, maintain and secure the property. That’s not much in relation to the city’s budget. But the key word there is “estimates,” and the EPA can demand that the city do more if the EPA deems more work is needed.

If the city sells any of the land, the EPA gets first dibs on the proceeds to cover any of its costs in the reclamation. The city then gets second dibs to cover its costs. If anything is left over, the city and the EPA share in the proceeds.

Why would the federal government make such a deal? One reason, apparently, is because Dico is broke. But its parent, Titan, isn’t — Titan International reported 2019 sales of $1.45 billion — and there’s a legal concept called “piercing the corporate veil” that, if approved by a court, would hold Titan liable for the judgments. Titan also claims that it has a lien on the Dico property, and that its lien supersedes any government claims. That’s arguable.

At any rate, the deal now has been signed, sealed and delivered — delivered to the federal court. To approve, Judge Pratt, according to an EPA website, must “independently review the adequacy of [the] proposed consent” decree.

Put another way… You were arrested for speeding in 2000 and fined $60. You simply ignored the fine, and the government didn’t seem to care. It let you renew your driver’s license and get new plates annually. The sheriff never came knocking on your door. You were arrested a second time, in 2017, and, this time, fined $100. You ignored the fine, kept getting your license and plates. No sign of the sheriff. But it was the same car, and it was getting pretty old and dangerous to drive. So, this year, you go the feds and the city and say, “let’s make a deal. I’ll pay you about two-thirds of what I owe you, and you take this junky car. But you have to fix it up. This surely will cost you more than the $105 I’m giving you, but, hey, it’s a deal. And let’s forget about the interest on those fines.” And, by the way, “when you get the car fixed up, it can’t be driven on weekends, and you can’t let anyone ride in the front seat.” Also, “two other things: Even though my dad is a millionaire, I’m broke, but I’ll pay you on the installment plan. And, also, you’ll need to be on the hook to my neighbor to clean up all the oil and transmission fluid that has been leaking and running off into her yard.” That’s the Dico deal. ♦

The day Frank Pierce killed Elijah Wishart

Frank Pierce was a well-connected and vicious thug in the Des Moines of the 1880s and 1890s. Born in Maine in 1855 and trained as a blacksmith, he found his way to Iowa in the mid-1880s and began dabbling in everything from garbage-collecting to politics to murder.
Elijah Wishart, who was raised in northeast Iowa, was a Civil War veteran — he enlisted less than a month after the first shot was fired at Fort Sumter in 1861 and served until three months after the war ended with the surrender of General Robert E. Lee at Appomattox in 1865. Sometime in the 1870s, he and his wife settled in Des Moines. At first, he was a wood turner, but in April 1890, hampered by maladies and not long after applying for his Civil War pension, he signed on as superintendent of the town dump and a special agent with the Des Moines police.

The paths of Pierce and Wishart would cross on June 30, 1891.

Des Moines was booming by 1890. In the past decade, the population had more than doubled, to a bit over 50,000, thanks in part to the recent annexation of seven surrounding communities, from Greenwood Park on the West to the City of North Des Moines to Easton Place to Sevastopol in the South. It suddenly was a city of 55 square miles.

Fifty-five square miles where it was illegal to buy a drink.

Prohibition had been in force in Iowa since 1884, and liquor was the dominant issue of the day. (In 1890, the town’s baseball team in the old Western Association was The Des Moines Prohibitionists.) The Republicans were divided about prohibition, but the Democrats were of one mind — they didn’t like it. In the gubernatorial election of 1889, Republican-turned-Democrat Horace Boies won the Governorship, the only Democrat to hold the office between 1854 and 1933, and he won on the issue of liquor. (Boies was re-elected to a second two-year term in 1891 and was a real contender for the Democratic nomination for President in 1892.)

While prohibition was deplored by some and applauded by others, it provided a foolproof and handsome living for a handful of unscrupulous men dubbed Whiskey Searchers. Appointed by the sheriff as special constables, they had the power to raid any establishment, from saloons to churches, in search of liquor. They apparently were paid by the county for each raid — irrespective of whether any liquor was found — and paid double for each conviction handed down by a justice of the peace who would hear the complaint. Since the justices of the peace also apparently were paid for each conviction, the cards were stacked against the accused.

As a sideline, some Whiskey Searchers extorted money from saloons rather than turning them in.

The most notorious of the Searchers was Pierce, a bully with a gun, a man whose career entailed “reckless use of revolvers, clubbing and shooting men at every opportunity until the event became so frequent as hardly to excite the comments of the passer-by,” the Cedar Rapids Gazette reported. More than once he’d been threatened by mobs.

Besides being a Searcher, Pierce ran Capital City Scavanger Co. Scavengers were, in effect, the first garbagemen of many cities, extracting anything valuable before taking it to the dump. Des Moines didn’t start a garbage-collecting department until well after 1900, and by the 1890s the dumping of garbage had become a health and environmental problem for the city. The city owned a dump at the foot of Ninth Street, near the Raccoon River — and near the old fairgrounds and the town’s baseball park — and there were private dumps in the area as well, according to indefatigable Des Moines historians John Zeller and Steve Nelson-Vaux. Some scavengers and other citizens simply dumped their garbage into the Raccoon.

On the afternoon of Tuesday, June 30, 1891, a pleasant afternoon with mild temperatures, the 36-year-old Pierce got in his buggy and had his men drive two wagons full of garbage down to Ninth Street, where they planned to dump them on a private dumping grounds managed by Augustus C. Becker, a well-known local man who had a running feud with Pierce (and who died in 1904 of a duty-related illness while serving a stint as a Des Moines police officer). That morning, Becker had put a fence around the dump, so Pierce then told his workers to dig a hole in the street and bury the garbage there.

But Special Agent Wishart was on duty there, having been appointed by the mayor a year earlier with instructions to “allow no dumping at the foot of Ninth.” Wishart told the Pierce men to stop. He pointed to his badge, which didn’t impress Pierce.

They argued, each drew his gun, and Pierce shot Wishart. One shot hit him in the arm, another in his stomach. (“By the heavenly father, he said he would kill me, and he has done it,” Wishart uttered.)

Wishart was taken to the hospital, but Pierce brazenly hung around and had his men tear down the fence around the private lot and dump the garbage. Police then arrived, arrested Pierce and took him to jail.

“The news of what was believed to have been a brutal murder spread with rapidity and the jail was soon surrounded by an angry mob clamoring for the life of the criminal, who crouched in terror behind the bars,” the Davenport Daily Times reported. “The police acted with great firmness, and as the mob had no recognized leader it was dispersed.”

Wishart died overnight, in the early hours of July 1, but not before telling the story to his fellow police. He was 54 years old.

Pierce was charged with first-degree murder. He was jailed for several months and ultimately was freed on bail. He asked for a change in venue, so a trial was set for Indianola. The courtroom was packed that April as witness after witness told of the killing. (“He laughed at times during the hearing and smiled often,” the Iowa State Register reported.)

One witness was Becker. “Asked if he had ever raised his rifle against Pierce, he said no,” the newspaper reported. “But when I do, I’ll pull the trigger. (Applause).”

[“Pierce’s wife, a stout, buxom looking woman dressed in black, sat near him all day. She hasn’t a bad face, but she seemed rather bored than intensely interested in the proceedings,” the Register noted.]

In late April, the jury found Pierce guilty of manslaughter, and he was sentenced to four years at the state penitentiary in Fort Madison. He remained free while appealing to the Iowa Supreme Court, but that court upheld the verdict. He entered Fort Madison on May 12, 1894. He listed himself as a carpenter and an “evangelical,” and prison records say he had a “temperate” manner. He apparently was given credit for time he spent in Polk County jail; records say he was due to be released on Oct. 27, 1897.

But Republican Governor Francis Marion Drake (the eponym of Drake University), who took office in January of 1896, paroled Pierce after three years, and he was released from Fort Madison on Nov. 27 of 1896.

He apparently returned to Des Moines and sold insurance for a while, but he left town not long afterward and settled for a time around Norfolk, Nebraska, where, the Register reported in 1909 (“Frank Pierce Has Grown Wealthy”); he apparently made a killing, as it were, in oil. When and where and how he died are unclear.

Wishart was buried in an unmarked grave at Woodland Cemetery, but Mike Rowley and his volunteers have just placed a government-provided stone on the grave. It notes that he was a veteran of the Civil War.

Soon it will add that he also was the first Des Moines police officer to die in the line of duty.

The fallen Twenty-five Des Moines police officers — 24 men and one woman — have died in the line of duty since June 30, 1891, when Special Officer Elijah Wishart was murdered by Frank Pierce. They are: Sgt. Augustus C. Becker, Feb. 19,1904, from a duty-related illness. Detective Frank Delmege, Sept. 20, 1909, gunfire. Officer George William Mattern, April 12, 1918, gunfire. Chief of Police Charles Chester Jackson, Dec. 16, 1918, gunfire. Detective Cornelius J. McCarthy, Sept. 27, 1919, gunfire. Patrolman Ollie D. Thomas, Aug. 20, 1925, gunfire. Patrolman Gerald D. Pickett, Sept. 24, 1925, motorcycle crash. Patrolman James A. Staggs, April 20, 1928, vehicular assault. Patrolman Harry Ogilvie, July 12, 1930, gunfire. Sgt. Rupert L. Shepherd, Aug. 1, 1930, motorcycle crash. Sgt. James Joshua Cowart, Dec. 7, 1931, gunfire. Sgt. Harry Linn Booton, Dec. 11, 1932, gunfire. Capt. Steven Tabor Howard, March 2,1935, gunfire. Patrolman George Wesley Shane, May 4, 1942, gunfire. Capt. Charles T. Andreano, July 30, 1964, automobile crash. Patrolman James Emery Rodine, Aug. 13,1968, gunfire (inadvertent). Patrolman Brian Charles Melton, April 21, 1977, gunfire. Officer Dennis Earl Hill, Aug. 28, 1977, gunfire. Officer Sean Wissink, Feb. 11, 2007, automobile crash. Officer Roger Ray Hildreth, Feb. 21, 2008, heart attack. Lt. David Allen Bowen, Sept. 29, 2008, related illness. Officer Carlos Bernabe Puente-Morales, March 26, 2016, vehicular assault. Officer Susan Louise Farrell, March 26, 2016, vehicular assault. Sgt. Anthony David Beminio, Nov. 2, 2016, gunfire. ♦

Vision Iowa, 20 years later: It wasn’t about the money.

About 20 years ago, I was sitting in my office at the ballpark when Gov. Tom Vilsack called. He said he was forming — with bipartisan support from the Legislature — a board that would distribute money to Iowa’s towns and cities to improve the quality of life.

“Would you be on the board?” he asked. “Sure,” I said. “Would you be chairman?” he asked. “I’d like to think about that,” I said. OK, he said, “I’m not announcing it for another 10 minutes.”

I quickly assumed that the board would be saying “no” to communities a lot more often than saying “yes.” I called my wife, who had lived through the years when I was aggressively editing The Des Moines Register.

“I just agreed to do something for Vilsack that will probably please 500 people in the state and make 50,000 mad at me,” I said.

“Fifty-thousand more,” she replied.

As it turned out, I probably had the numbers reversed. Vision Iowa was armed with about $225 million from the sale of bonds backed by the state’s gambling revenues, bonds that were paid off last month, and the board used that as seed money to change the state — from spurring the almost unbelievable renaissance in downtown Des Moines, to changing the Mississippi riverfront at Dubuque, to providing money for a hockey arena in Sioux Center to building hundreds of miles of trails throughout the state to — my favorite — helping finance a fantastic museum in Gladbrook, population 861, where huge models of the world’s marvels have been constructed out of matchsticks by a
local man named Pat Acton.

The 13-member Vision Iowa board wrote its own rules, and there were two that were vital to the success. The first was that no project would be approved unless it had city and county and private money in it (and when we discovered how rich some municipal-owned utilities
are, we added those to the list). The second was that no project could be scaled back because the town didn’t get all the state money it was requesting. It was all or nothing.

We steeped ourselves in the details of each town’s finances — board member Greg Connell, then the mayor of Shenandoah, was an expert on municipal finance — so we wouldn’t be bamboozled. We grilled the townsfolk and drilled into the numbers, trying to figure out the very least we could give to make a project work — saving money for the next town in line. We ended up financing about 15 percent of most projects — far less than the towns asked for.

We had some hellacious arguments (or spirited discussions, depending on which side of the table you were on), and some folks went running to Vilsack to complain about us, but he never, ever interfered.

The town fathers and mothers of Des Moines and Polk County were especially furious. They wanted $70 million to help finance the new events center and sports arena. That’s not visionary, the board said, it’s just a real-estate deal. We want something visionary, something transformative, we said. In the end, that $70 million was used to help build not only the arena and events center but also the new
downtown library, the Pappajohn Building, the Science Center, and the renovation of the old library into the beautiful headquarters of the World Food Prize. Those developments then led to the continuing development of downtown Des Moines.

In all, we ended up leveraging that $225 million into more than $3 billion in projects. We turned some down because we thought the finances were shaky or the leadership weak, but no project failed. Attorney General Tom Miller lent us an assistant attorney general, first
Mark Thompson and then Andy Anderson, and the Department of Economic Development gave us two fantastic women — Susan Judkins and then Nichole Warren (now Nichole Hansen) — who could analyze the projects and provide advice to and hold the hands of nervous applicants.

It was a lean operation with a working board of people who loved Iowa.

But Vision Iowa succeeded not because the board was tough but rather because it spurred townsfolk to come up with great ideas, to spot leaders, and — especially — to work together. At first, I’m sure, they thought the program would be a nifty handout, but word soon got out that Vilsack envisioned — and the board implemented — a different kind of program.

And it worked.

But, looking back, the program changed the state not because of the money but rather because it prompted towns to come up with great ideas and find the person in town who could lead and forge coalitions — the town clerk, a young teacher, an old farmer, the druggist, the
school-bus driver, anyone who loved his or her town and who had the respect of the community and the will to work hard and think hard and never give up.

In the end, I came to believe Vision Iowa was about ideas, not money. It was about, a Marshall County farmer told me one afternoon, “building memories.” I came to believe then — and I do now — that the money was the draw but, in the end, it wasn’t that important.
Vision Iowa was totally about people and ideas. The most important person was Tom Vilsack, and the best idea was his.

He showed that a single idea can change a state forever. ♦

— Michael Gartner

Latest college rankings: Drake beats Iowa, ISU The Wall Street Journal has come out with its annual rankings of U.S. colleges and universities. Drake, at number 144, outranks the three state universities — U of Iowa (162), Iowa State University (264) and the University of Northern Iowa (between 500 and 600). The top-ranked Iowa school is Grinnell, at number 68. Luther is number 243, Cornell College 285, Coe College 306. Dordt College is considered No. 1 in “engagement” — “how engaged students feel they are with their professors, their peers and their education.” Harvard was No. 1 overall, followed by MIT, Yale, Stanford and Brown. The rankings are based on outcomes, resources, engagement and environment. ♦