"History records that the money changers have used every form of abuse, intrigue, deceit, and violent means possible to maintain their control over governments by controlling money and its issuance." - James Madison

false claims of unusual exigency - coercive monopoly fraud


We consider a question that has split the federal courts:
May a non-settling PRP intervene in litigation to oppose a
consent decree incorporating a settlement that, if approved,
would bar contribution from the settling PRP? We join the
Eighth and Tenth Circuits in holding that the answer is “yes.”

“The fact remains that AIG's rescue broke all the rules, and each rule that was broken poses a question that must be answered.” - Ms. Elizabeth Warren, Congressional TARP oversight panel chairwoman


The decision appears to bring an end to the criminal investigation of AIG, but a Securities and Exchange Commission probe into AIG and the dealings of its London-based Financial Products subsidiary is continuing and could lead to a civil securities fraud case.

"There is no crueler tyranny than that which is exercised under cover of law, and with the colors of justice" 
- U.S. v. Jannotti, 673 F.2d 578, 614 (3d Cir. 1982)

Iron Mountain Pirates - Judges David Levy & John Mendez



As our school partnerships develop, we are keen to seek ways of extending our support to some of the many grass-roots community organisations providing invaluable support to local residents.


Financial reform bill a mockery

By U.S. Senator Jim Inhofe

Published: Saturday, June 5, 2010 10:33 AM CDT

The financial regulatory reform bill recently passed by the Senate makes a mockery of what Americans are actually looking for in financial reform. Instead, the partisan bill institutionalizes bailouts for Wall Street banks and even hurts American businesses.

Some states chafe at Pentagon control in disasters

By DAVE GRAM (AP) – 2 hours ago

MONTPELIER, Vt. — When squabbling between Louisiana's Democratic governor and the Republican Bush administration delayed some troops getting to New Orleans after Hurricane Katrina, many blamed raw politics.

But nearly five years later, as another calamity — the BP oil spill — grips the Gulf region, questions linger about who's in charge when both state National Guard personnel and federal troops are called to respond to disaster.

Now Vermont Gov. Jim Douglas, chairman of the National Governors Association, has assumed leadership of a panel created by Congress to try to resolve the questions. President Barack Obama asked Douglas and Washington Gov. Christine Gregoire to co-chair the panel known as the Council of Governors, which is set to hold its second meeting with Pentagon officials next month.

Court tosses SPCA defamation lawsuit

By DON LEHMAN dlehman@poststar.com |

A state appeals court on Thursday tossed out a $4.5 million defamation lawsuit brought by the SPCA of Upstate New York against a Vermont animal group that was critical of the shelter.

The Appellate Division of state Supreme Court found that New York courts did not have jurisdiction over the lawsuit filed by the SPCA of Upstate New York against the American Working Collies Association over postings on the association's website.

The Ohio-based association and its Vermont-based president, Jean Levitt, were named as defendants in state Supreme Court under a theory of law that Levitt's visits to the SPCA established jurisdiction here.

State Supreme Court Justice David Krogmann last year declined to dismiss the lawsuit after the association challenged the jurisdiction, and the association appealed.

The SPCA and the AWCA became embroiled in a dispute in 2007 after the SPCA seized 23 collies and dachshunds from a Fort Ann home for neglect. The AWCA provided money and supplies to help care for the dogs, but Levitt and SPCA Executive Director Cathy Cloutier disagreed about care provided to the dogs, prompting Levitt to post 60 comments on the AWCA website, many of them criticizing the Kingsbury-based shelter.

The comments called the care at the SPCA "beyond logic" and said there was a "stench" in the shelter.

Here's another possible reason there won't be a prosecution: Our economy was shattered by a syndicate, a ring, a cabal at the top of the financial pyramid. To move against any one of them - AIG's Joe Cassano, the auditors, Goldman Sachs, or even the credit agencies - would trigger a chain reaction of rats turning on one another, summoning each other to testify, and spilling each other's dirty secrets in an attempt to save themselves.

Investors Demanding Social Justice


As instances of business malefaction pile up — Enron, Madoff, Goldman Sachs, A.I.G., Toyota, BP, and we're just clearing our throats with that lineup — the concept of corporate responsibility has acquired the sour air of an oxymoron for many people. Laura Berry is not one of them.

Ms. Berry is the executive director of an organization that bears that very idea in its name: the Interfaith Center on Corporate Responsibility . It doesn't accept that doing good and doing well have to be mutually exclusive at American companies, recent experience notwithstanding. If ever the corporate world could use a healthy infusion of responsibility, this would seem to be the time.

“We come at this issue from a moral perspective, but we also come at it as investors,” Ms. Berry said. “I actually believe that God, whatever God is, set up the system so that it works better when we don't cheat.” .....

Do corporations listen? Sometimes. Wal-Mart has changed some labor policies, Ms. Berry said, and some pharmaceutical companies have responded to “justice actions.” But in the corporate universe, turning a deaf ear remains a default position.

“Do they just pat us on the head, and send us away, and say, ‘Oh, it's be-nice-to-nuns week,' or whatever?” she said. Sure. “But they know we don't go away,” she said. “We may be annoying. We may be trivialized. But we do our homework, and we don't go away.”

And it could be argued, Ms. Berry said, that her group's faith-based members are “the ultimate long-term investors.” She laughed, to seem not to be taking herself too seriously. Nonetheless, she said, “Our investment horizon is eternity.”

A.I.G. Rejects Price Cut for Sale of Asia Unit

June 1, 2010, 1:55 am

The American International Group 's board announced Tuesday it had voted to reject selling its huge Asian life insurance arm to Prudential Plc below $35.5 billion, likely scrapping a deal meant to have provided the first major repayment of the American insurer's taxpayer-financed bailout, people briefed on the matter said.

EPA Disapproval resolution: June 2010 (Sen. Lisa Murkowski)

Meanwhile, the National Whistleblowers Center notes that no whistleblowers stepped up to warn of the impending Deepwater Horizon catastrophe, and speculates that they didn't step up because the law wouldn't protect them. That speculation seems awfully reasonable to me -- key laws that govern offshore drilling (the Outer Continental Shelf Act, the Oil Pollution Act of 1990, the Endangered Species Act) don't actually provide whistleblower protections. Ergo, the NWC provides an updated contact tool demanding the strongest whistleblower protections possible. As you may recall, the House briefly worked on a decent bill (H.R. 1507) back in March 2009 (which never even got out of committee), and then a considerably weaker Senate bill (S. 372) made it out of committee in December 2009, but never received a vote. (It almost makes one want to say, thank God for that health care bill ! Almost, I said.) You may want to mention these bills, and your opinions thereof, in the contact tool the NWC provides.

Law and Order: AIG

S&P: AIG Ratings Unchanged; Continued Government Support

WASHINGTON (MNI) - The following is the text of a statement by Standard & Poor's Thursday on the ratings of AIG following the termination of negotiations to sell its Asian subsidiary to UK insurance firm Prudential PLC:

Standard & Poor's Ratings Services said today that its ratings on American International Group Inc. (AIG; A-/Negative/A-1) and AIG's insurance subsidiaries (most of which are rated A+/Negative/--) are not affected by the company's announcement that it has terminated its agreement to sell AIA Group Ltd. (AIA) to Prudential PLC. (On March 1, 2010, Prudential PLC had reached an agreement with AIG to acquire AIA for US$35.5 billion.)

We consider this development to be a setback in AIG's overall restructuring plan to reduce outstanding indebtedness to the Federal Reserve Bank of New York and exit from the TARP preferred stock owned by the U.S. Treasury Department. Nonetheless, the sale termination is not affecting the ratings and outlook on AIG, as AIG still maintains a level of flexibility in selling AIA, and its overall credit risk characteristics so far remain unchanged. We believe the sale of AIA will now take longer than AIG previously anticipated and poses increased execution risk because of the volatile conditions in the capital and equity markets.

The ratings on AIG reflect our opinion of the extraordinary support the company has received from the U.S. government in light of AIG's perceived status as a highly systemically important U.S. financial institution. The ratings are also based on our view of the company's 'A+' rated multi-line insurance subsidiaries. We expect that the extraordinary government support will continue during AIG's period of stress. As a result, the long-term counterparty credit rating on AIG includes a five-notch uplift from our assessment of the company's stand-alone 'BB' credit profile. AIG's stand-alone credit profile is 'BB' based on our view of the high level of leverage that funds its capital structure and dependence on operating-company asset sales to repay its debt.

AIG HQ to sell at fraction of price , By Theresa Agovino

Perhaps AIG is looking for a new way to fund its bonuses.

As American International Group Inc. prepares to put its headquarters on the block, its best hope lies in a possible sale-leaseback of the two downtown properties. The insurer, which is being pilloried for using taxpayer money to fund fat bonuses amid massive losses, is trying to sell its headquarters at 70 Pine St., as well as the connected building at 72 Wall St.

AIG Sells N.Y. HQ Highrise, Other Properties

NU Online News Service, June 3, 2009

American International Group has reached an agreement to sell its 66-story Manhattan headquarters tower and another nearby skyscraper, a source said.

At the same time a real estate fund announced the sale of another AIG building covering 235,000-square-feet located in Ridgefield Park, N.J. No price was announced for any of the sales.

David Monfried an AIG spokesman would not comment on the sale.

The buyer was rumored to be from outside the U.S. and the price in the vicinity of $100 million.

Of all the wounded firms, AIG has always stood apart. It is the only company to receive money from a special Treasury facility called the "Systemically Significant Failing Institutions" program, and that is just one of its many life-support systems. Even as the firm gets the bleeding under control, skeptics abound. AIG's new board has privately expressed its own concerns about the firm's viability, people with knowledge of the discussions have said. Elizabeth Warren, chairman of a congressional panel overseeing the bailouts, said last month that some AIG units might have to file for bankruptcy to speed recovery.

AIG repayment prospects fade

By David Goldman , staff writer June 4, 2010:

NEW YORK (CNNMoney.com) -- Taxpayers have lent AIG $132.6 billion, but getting that money back is looking less likely.

The sale of AIG's Asian life insurance unit for more than $35 billion would have helped a lot, but the deal went bust this week when the buyer, Prudential PLC, sought a lower price.

Now the troubled insurer is essentially back to square one with its repayment strategy -- though AIG Chief Executive Robert Benmosche remains upbeat about the options regarding AIA, and maintains that AIG will pay back its loans in full.

The AIG ( AIG , Fortune 500 ) bailout came from three main sources.

First, there was $52 billion in loans from the Federal Reserve Bank of New York. The plan was to pay back the New York Fed with proceeds from the AIA sale and the planned $15.5 billion sale to MetLife ( MET , Fortune 500 ) of another life insurance unit named Alico.

Now AIG will likely try to sell AIA through an initial public offering, though given the recent market turmoil, it probably will generate less for AIG than the Prudential deal would have.

AIG also got a bailout from the Treasury Department, in the form of an ownership stake that can be converted into about 80% of AIG's common shares, and a $49.1 billion stake in the company's private shares.

Currently, AIG has no precise plan to repay the Treasury. The company said it planned on paying back the New York Fed first, then repay its remaining loans with profits.

But paying back the Treasury loan with profits alone does not appear feasible: Benmosche has predicted that AIG will be able to earn between $6 billion and $8 billion after taxes next year. Even if AIG maintained that income level for years and sent all of its profit to the government, it would take until 2018 to fully repay the Treasury.

"The recovery [of Treasury's] interest will largely depend on the performance of the remaining businesses in the AIG portfolio after it completes its asset sales and how they are valued in the stock market," said Jim Millstein, Treasury's chief restructuring officer, at a bailout watchdog's hearing on AIG last week. "It remains unclear what the Treasury's ultimate recovery will be."

The Treasury has the option of selling its 80% stake in AIG on the stock market, but a Treasury official said that wouldn't likely result in taxpayers getting all of their money back. The government's interest is currently worth roughly $20 billion, but Treasury noted that a massive sale of AIG's stock would lower the share price, resulting in a lower sum.

Meanwhile, AIG has not paid the dividend on its TARP loan for six consecutive quarters, resulting in about $5 billion of lost payments. According to its deal with Treasury, AIG does not need to make up for missed dividend payments. Instead, the government can assign two new board directors after four consecutive skipped payments -- a right that Treasury only recently took advantage of in April.




Celebration at the Edge of Decay

By MATT GROSS , Published: June 2, 2010 The New York Times,

In a grove of leafy trees, hundreds of women (exposed shoulders, gladiator sandals) and men (straw hats, crisp shorts, multicolored Nikes) swayed to the effervescent beats of Michael Mayer, a techno D.J. from Cologne, Germany. Local children turned the Yard's boccie courts into sandboxes, while their parents picked at freshly made brick-oven pizzas. The line for drinks (sangria, Sixpoint Craft Ales) stretched nearly as long as the line for the portable toilets. Shortly after 8 o'clock, the sun began to set, turning the sky a vibrant pink that was reflected in the placid waters running alongside the Yard: the notoriously polluted Gowanus Canal.

“There's no place in Brooklyn, or in New York City, that feels kind of more pleasant than being right here, which is odd given that that is a toxic waterway,” said Jennifer Prediger, a producer of environmental videos who lives in nearby Carroll Gardens. “But it's actually quite lovely. It's the loveliest toxic waterway I've ever spent time on.”

In the course of its roughly 150-year history, the Gowanus Canal has been called many things, but it's fair to say “lovely” is probably not one of them. Now, however, the Gowanus micro-neighborhood — bounded by the gentrifying brownstone districts of Carroll Gardens, Boerum Hill and Park Slope — is enjoying its moment in the summer sun, drawing the city's hipsters to its art galleries and rock-climbing gyms, its nightclubs and rooftop film series. The half-empty warehouses and semi-derelict factories — for so long seen as post-industrial blight — now give Gowanus a special cultural edge, like a miniature Baltimore or Detroit (with terrifying pollution substituting for terrifying crime).

“It's the last chance for there to be a place for some creative stuff to happen,” said David Belt, a local architect responsible for some of the neighborhood's most creative stuff. Last year, he converted Dumpsters into swimming pools and installed them in a Gowanus lot. This year, he designed “Glassphemy!”, a recycling-themed installation that lets people throw bottles at one another. “There's industrial buildings, there's open space, there's blurry beauty everywhere,” he said. “There's kind of the feeling that you can still discover something special, that you're using your own aesthetic to interpret. Everything isn't, you know, a condo with a silly name.”

And it won't be for a little while longer, thanks to the Environmental Protection Agency , which in March designated the canal and its immediate surroundings a Superfund site, ordering a cleanup it says will take 10 to 12 years and cost $300 million to $500 million. The move was opposed by the city, which wanted to avoid the Superfund stigma and manage the cleanup itself, and real estate developers like Toll Brothers, which wanted to break ground as soon as possible on a 480-unit canal-side apartment complex. Now development plans are on hold.

“We had a big party — with Champagne,” said Marlene Donnelly, a member of Friends and Residents of Greater Gowanus, an activist group that fought for the Superfund designation. She was sitting in a lounge chair in the well-tended backyard of her Gowanus home with her husband, Benjamin R. M. Ellis, an architect.

“There was hope in the world that the mayor and his cronies and rapacious developers lost,” said Mr. Ellis. “It was clearly a victory.”

That victory, as they see it, is still only partial. The E.P.A. cleanup covers only the canal and the polluted soil, but does not address the fact that whenever it rains, sewage from the surrounding neighborhoods runs directly into the canal. Responsibility for fixing that problem lies with the city, whose current plans would alleviate “approximately 34 percent” of the runoff. Ms. Donnelly and Mr. Ellis say it's more like 10 percent, and until the sewage system is improved, residential development should be delayed in the area, for which Mr. Ellis had a variety of descriptions, ranging from “filthy industrial wasteland” to “toilet bowl.” In a grove of leafy trees, hundreds of women (exposed shoulders, gladiator sandals) and men (straw hats, crisp shorts, multicolored Nikes) swayed to the effervescent beats of Michael Mayer, a techno D.J. from Cologne, Germany. Local children turned the Yard's boccie courts into sandboxes, while their parents picked at freshly made brick-oven pizzas. The line for drinks (sangria, Sixpoint Craft Ales) stretched nearly as long as the line for the portable toilets. Shortly after 8 o'clock, the sun began to set, turning the sky a vibrant pink that was reflected in the placid waters running alongside the Yard: the notoriously polluted Gowanus Canal.

“There's no place in Brooklyn, or in New York City, that feels kind of more pleasant than being right here, which is odd given that that is a toxic waterway,” said Jennifer Prediger, a producer of environmental videos who lives in nearby Carroll Gardens. “But it's actually quite lovely. It's the loveliest toxic waterway I've ever spent time on.”

In the course of its roughly 150-year history, the Gowanus Canal has been called many things, but it's fair to say “lovely” is probably not one of them. Now, however, the Gowanus micro-neighborhood — bounded by the gentrifying brownstone districts of Carroll Gardens, Boerum Hill and Park Slope — is enjoying its moment in the summer sun, drawing the city's hipsters to its art galleries and rock-climbing gyms, its nightclubs and rooftop film series. The half-empty warehouses and semi-derelict factories — for so long seen as post-industrial blight — now give Gowanus a special cultural edge, like a miniature Baltimore or Detroit (with terrifying pollution substituting for terrifying crime).

“It's the last chance for there to be a place for some creative stuff to happen,” said David Belt, a local architect responsible for some of the neighborhood's most creative stuff. Last year, he converted Dumpsters into swimming pools and installed them in a Gowanus lot. This year, he designed “Glassphemy!”, a recycling-themed installation that lets people throw bottles at one another. “There's industrial buildings, there's open space, there's blurry beauty everywhere,” he said. “There's kind of the feeling that you can still discover something special, that you're using your own aesthetic to interpret. Everything isn't, you know, a condo with a silly name.”

And it won't be for a little while longer, thanks to the Environmental Protection Agency , which in March designated the canal and its immediate surroundings a Superfund site, ordering a cleanup it says will take 10 to 12 years and cost $300 million to $500 million. The move was opposed by the city, which wanted to avoid the Superfund stigma and manage the cleanup itself, and real estate developers like Toll Brothers, which wanted to break ground as soon as possible on a 480-unit canal-side apartment complex. Now development plans are on hold.

“We had a big party — with Champagne,” said Marlene Donnelly, a member of Friends and Residents of Greater Gowanus, an activist group that fought for the Superfund designation. She was sitting in a lounge chair in the well-tended backyard of her Gowanus home with her husband, Benjamin R. M. Ellis, an architect.

“There was hope in the world that the mayor and his cronies and rapacious developers lost,” said Mr. Ellis. “It was clearly a victory.”

That victory, as they see it, is still only partial. The E.P.A. cleanup covers only the canal and the polluted soil, but does not address the fact that whenever it rains, sewage from the surrounding neighborhoods runs directly into the canal. Responsibility for fixing that problem lies with the city, whose current plans would alleviate “approximately 34 percent” of the runoff. Ms. Donnelly and Mr. Ellis say it's more like 10 percent, and until the sewage system is improved, residential development should be delayed in the area, for which Mr. Ellis had a variety of descriptions, ranging from “filthy industrial wasteland” to “toilet bowl.”

“I mean, come on! Hello! It's just not good planning,” Mr. Ellis said, his eyes wide behind his glasses and his steely hair suddenly leonine. “That's it. And that's what we've been saying all along: Let's clean it up, and then let's talk.”

What they (and many other locals) want to see is developments like the Old American Can Factory, a complex of Civil War-era brick buildings whose owner, Nathan F. Elbogen, has turned them into affordable offices, studios and workshops for creative businesses like the fashion label Vena Cava and the art space Issue Project Room (which moved to Gowanus after being priced out of the East Village). The Jewish Press building, an enormous, disused, nearly windowless structure, could become a theater, Ms. Donnelly said.

The idea is to preserve what attracts people to the Gowanus in the first place. People like Turner Cody, a tall, bearded folk and blues musician who recently shot a music video there and described the view as “a nice bit of urban decay.” And people like James Stillwaggon, a 34-year-old Brooklynite in amber sunglasses and half-buttoned shirt, who on a recent Wednesday evening took his 12-year-old nephew to explore the water with the Gowanus Dredgers Canoe Club, which has provided free canoes to thousands of canal visitors since 1999.

“We saw some oil slicks, we saw some beer bottles floating, we saw some tugboats or some barges,” said Mr. Stillwaggon, whose ancestors were tugboat captains. “We saw a wineglass floating, which was pretty fantastic. Somebody had a great time! But we also saw an egret, we saw a cat, we saw a lot of birds flying overhead. You know, it's amazing how the industrial space becomes grown over with all this green that refuses to be held back.”

Was he worried about being on a waterway so polluted, it was once received a diagnosis of gonorrhea?

“No,” he said. “I mean, if you grew up on Long Island in the '80s, there were always days when there was sewage in the water, there were needles in the water — all sorts of horrible stuff. So I don't think it's anything to be afraid of.”

But even those who thrill to this “blurry beauty” (to use David Belt's term) understand that the Gowanus must change, and that a dozen years from now, when it's all (or partly, depending on your point of view) cleaned up, the big developers may very well step in, eventually pricing out the artists and other creative types who have made the neighborhood what it is today.

This sense of the neighborhood's ephemeral nature infused the Bklyn Yard, which happens to be adjacent to the Toll Brothers site and might not survive development.

“This year we wanted to do a lot of structural changes and, like, build a bigger bar and things like that,” said Katie Longmyer, an owner of MeanRed Productions, the company that is organizing weekend parties at the Yard through the summer. “But because we didn't know the longevity of the space, that kind of affected it. So we got more tents instead of building things out of wood. That's how we gauge it. If you were like, 'Is the Yard going to come back next year?,' I couldn't even tell you.”

One of the partygoers, Erin Gillis, a blond, blue-eyed 29-year-old from Detroit, indulged in a bit of pre-emptive nostalgia for the Yard of years past, when she once spotted a “fat, middle-aged couple, drinking cans of beer, completely nude,” floating by in a little boat. “What makes the Yard special is that it's untouched, it's not manicured,” she said. “It's not a state park.”

AS the E.P.A.'s work begins — and therefore as the neighborhood's potential expiration date draws ever nearer — the Gowanus community might want to adopt the attitude taken by José Portes, 36, an owner of Homage Brooklyn, a popular skateboard shop on Smith Street.

For years, he and his partner, Michelle Sauer, have been trying to get a skate park incorporated into a public park in Gowanus — with, at last, a bit of success. Where the surface of Thomas Greene Park was once cracked and pitted with grass, now it's smooth, with a small complex of wooden banks and ledges for local kids (and, once in a while, a writer for The New York Times) to do tricks on.

“It's good that we are creative and adaptive — highly adaptive,” Mr. Portes said. “That's kind of what we do in skateboarding, right? You don't see the obstacle as a thing that's in your way. You see it as something in the way that you're going to bonk off or you're going to grind.”

And while he isn't exactly looking forward to a neighborhood full of luxury apartments, he does see an upside. “There's new developments coming up,” he said, “and right with them some new ledges, some new banks, and hopefully they won't skate-proof them!”

Does the government sell insurance for insurance companies?

Corporate Dissolution Laws Trump CERCLA Liability

By Linda Larson

An old adage goes something like this: “There are only three things that are certain: death, taxes and CERCLA liability.” But perhaps not (at least as to CERCLA liability), according to the Second Circuit. In Marsh v. Rosenbloom, (“Marsh”) the Second Circuit recently held that once a corporation has closed its doors, dissolved and distributed any remaining assets to the shareholders, the CERCLA liability of its former shareholders is extinguished. The case arose in a cost recovery action filed by New York State against a dissolved corporation and its shareholders more than three years after the wind-up period established by Delaware's corporate dissolution statute. The case examined the tensions between CERCLA and the Delaware General Corporate Law. But because many states have corporate dissolution provisions similar to Delaware's and in light of the sheer number of businesses that are incorporated in Delaware, the case may well have broad application nationwide.

California Health and Safety Code Section 25548
The California legislature, like Congress, took action in
1996 and enacted California Health and Safety Code section
25548–the California law analogous to CERCLA section
107(n). The stated intent of section 25548 is “to specify the
type of lender and fiduciary conduct that will not incur liability
for hazardous material contamination.” As such, section 25548
provides exemptions and limitations to potential fiduciary
liability under the environmental laws. Thus, section 25548

residually identifies the universe of potential liability for
fiduciaries. Specifically, section 25548 addresses the exceptions
to and limitations on “the liability of trustees, executors, and
other fiduciaries for hazardous material contamination involving
property that is part of the fiduciary estate.”
Section 25548.3 eliminates personal liability for fiduciaries by
confining their potential liability to the estate assets. The
caveats come in section 25548.5, which makes it clear that
fiduciaries do not have blanket immunity from liability under the
environmental laws.63 The protection of the limitation of liability
in section 25548.3 will not apply where (1) that liability results
from the fiduciary’s negligence or recklessness; (2) the fiduciary
conducts a removal or remedial action without providing proper
notice to the appropriate agency; (3) the potential liability
results from acts outside the scope of the fiduciary duties; (4)
the fiduciary relationship is fraudulent in that its raison d’être is
to avoid liability; or (5) the fiduciary is also a beneficiary, or
benefits from acting as fiduciary, in a manner over and above
that considered customary or reasonable for a fiduciary.

see also
United States v. Newmont USA Ltd., 504 F. Supp. 2d 1050, 1061–69 (E.D. Wash.
2007) (concluding, without actually adopting the “indicia of ownership” test in Long
Beach Unified Sch. Dist. v. Dorothy B. Godwin Cal. Living Trust, 32 F.3d 1364 (9th
Cir. 1994), that the United States held sufficient indicia of ownership in an Indian
reservation to be held an “owner” under CERCLA);

1. The defendant acquired title to the property subsequent to
the disposal or placement of the hazardous substance.
2. The defendant acquired title to the property through
inheritance or bequest.
3. The defendant “provides full cooperation, assistance, and
facility access to the persons that are authorized to conduct
response actions at the facility (including the cooperation
and access necessary for the installation, integrity,
operation, and maintenance of any complete or partial
response action at the facility).”
4. The defendant “is in compliance with any land use
restrictions established or relied on in connection with the
response action at a facility.”
5. The defendant “does not impede the effectiveness or
integrity of any institutional control employed at the facility
in connection with a response action.”

With respect to beneficiary ownership for CERCLA
purposes, creation of an express trust in California historically
vested full title of trust property in the trustee or trustees. The
California legislature repealed this statute in 1986, so the
modern rule may now apply. The modern rule holds that creation
of a trust divides title such that the trustee or trustees take legal
title, and the beneficiary or beneficiaries take equitable title.
For purposes of evaluating the potential CERCLA liability of a
trust beneficiary based on his or her status as owner, the initial
question is whether the equitable interest held by trust
beneficiaries is sufficient to support liability.

With respect to whether title was acquired via inheritance or
bequest, CERCLA defines neither “inheritance” nor
“bequest.” CERCLA case law also provides no clear rules or
definitions for what exactly constitutes an inheritance or
bequest. Reasoning from the dictionary definitions of
“inheritance,” “bequest,” and “devise,” property taken through
testamentary trusts or intestate succession would likely
constitute inherited or bequeathed property, as the property
interest transfers upon the death of the prior owner. No
federal court opinions addressing this issue of whether inter
vivos trusts or lifetime gifts constitute an inheritance or bequest
for purposes of the inheritance or bequest defense exist. The
only authority on point is Tamposi Family Investments, an
opinion of the Environmental Protection Agency Appeals Board.
In Tamposi, the Appeals Board rejected petitioner’s argument
that a gift from a father to a real estate investment partnership,
in which his children were the exclusive partners, should qualify
for the inheritance or bequest defense. Citing Black’s Law
Dictionary definitions for “inheritance,” “bequest,” and
“devise,” the Appeals Board found that the text of CERCLA

indicated that the inheritance or bequest defense was
inapplicable to inter vivos transfers, as the defense only applied
to transfers occurring upon death of the prior owner. Since it
is the sole authority on point and an analysis of CERCLA by an
arm of the EPA itself, courts considering the issue in the future
will likely find Tamposi highly persuasive and may defer to the
agency’s interpretation. Thus, the best option for settlors
wishing to protect beneficiaries from CERCLA liability during
the lifetime of the settlor is to use testamentary trusts and
devises in wills to transfer interests in impacted property. They
should then provide bequests to beneficiaries that may enjoy
limited liability status due to the form of business (such as an
LLC not comprised of beneficiary members). Combining these
steps with thoughtful timing of sales or distributions to occur
after cleanup, or in an otherwise protective manner, are also
optional protective measures. However, there is currently no
authority as to what structures will be effective. The most
important fact for beneficiaries to keep in mind is that the estate,
and therefore any property in trust, will always be fully liable if
the settlor was personally liable. The question is how to avoid or
minimize the personal liability of the beneficiaries. This
approach is entirely consistent with the settlor’s intent and legal
status: the settlor owned the property, the settlor was personally
liable, and the settlor intended to give the beneficiary what he
possessed during his life. 129 Id.
Although extremely persuasive, the decision is not a perfect interpretation of
CERCLA. Tamposi’s primary flaw is on the issue of inquiry. The Appeals Board
cites to the congressional comments on CERCLA as support for the contention that
individuals who take impacted property by inheritance or bequest must still conduct
“reasonable inquiry” into the contamination, even if they have no knowledge of the
inheritance or bequest. Id. at 125. Perhaps this was the intent of certain individual
members of Congress, but this failed to make its way into the text of the statue.
Nevertheless, the presence of this language in Tamposi raises the possibility that
some level of inquiry, albeit a very low level, will be required of owners who take
title by inheritance or bequest.
Potential beneficiaries may be able to disclaim property placed in trust for
their benefit. See, e.g., CAL. PROB. CODE § 15309 (West 2002) (“A disclaimer or
renunciation by a beneficiary of all or part of his or her interest under a trust shall
not be considered a transfer under Section 15300 or 15301.”). While an enticing
theoretical solution, practically this is not a good option where the property value
exceeds, or will exceed, the cost of remediation.

The California Code of Regulations addresses taxation rules
for changes in ownership in title 18, section 462. Section 462.160
pertains to trusts. Subsection (a) of section 462.160 provides the
general rule that transfer of real property interests into trusts, by
the settlor or anyone else, is a change in ownership; subsection
(b) provides instances excluded from this rule. Subsection (c)
provides the general rule that termination of a trust or any
portion of a trust, constitutes a change in ownership, and
subsection (d) provides the exceptions to this second general
rule. These rules for exclusions and exceptions–for example,
those transfers of interests that do not constitute changes in
ownership–are complex and are therefore presented in the
Appendix in tabular form in an attempt to simplify
comparisons. While untested in the courts, would-be settlors
and/or beneficiaries may be able to use these rules as a guide for
selecting trusts that will make CERCLA owner liability for the
beneficiaries less likely, or at least delay such potential liability
until such time as the property may be transferred with less or no risk.

Given the foregoing, it appears that the best overall strategy is
to anticipate transfers in property, to attempt to structure such
transfers to fall within the statutory defenses, and to preserve
and pursue rights against other potentially responsible parties.

Pre-Proposal Rules without a Scheduled Proposal Date : Other waste-related rules that have been announced by U.S. EPA but that are not yet proposed and do not have a scheduled proposal date include: (1) episodic generation rulemaking; (2) streamlining laboratory waste management in government research laboratories; (3) standards for the safe and environmentally protective placement of coal combustion residues as minefill in coal mines not regulated under the Surface Mining Control and Reclamation Act; (4) revisions to land disposal restrictions treatment standards and changes to recycling requirements for spent petroleum refining hydrotreating and hydrorefining catalysts; (5) revisions to RCRA Subtitle C financial test criteria; (6) revisions to reportable quantity values for F- and K-wastes under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA); and (7) RCRA smarter waste reporting. 

(4)     Revisions to LDR Treatment Standards and Recycling Requirements for Petroleum Refining : Regarding the revisions to the land disposal restrictions, U.S. EPA is considering amending the treatment requirements for spent petroleum hydrorefining catalyst, Hazardous Waste Code K172, and p etroleum refinery primary oil/water/solids separation sludge s, Hazardous Waste Code F037. U.S. EPA is also considering a proposal to “encourage consistent levels of recycling” of spent petroleum hydrotreating and hydrorefining catalysts, Hazardous Waste Codes K171 and K172, respectively.

(7)     RCRA Biennial Reports : The “RCRA smarter waste reporting” is intended to decrease the regulatory burden on generators completing the RCRA Biennial Report by eliminating the form for waste shipped offsite.  Instead, U.S. EPA is proposing to: (1) substitute data from the e-Manifest system once legislation is enacted and the system is developed and operational; (2) present an option for facilities with static hazardous waste generation to report less frequently; and (3) improve the information the Agency receives from companies who manage their waste onsite.

Non-Settling Potentially Responsible Party May Intervene in CERCLA Action

June 2, 2010 12:18 PM | No TrackBacks

US v. APW N. Am., No. 08-55996 , involved an appeal from the denial of a motion to intervene in an action filed by the EPA under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The court of appeals reversed, holding that, under CERCLA, a non-settling potentially responsible party (PRP) may intervene in litigation to oppose a consent decree incorporating a settlement that, if approved, would bar contribution from the settling PRP.

Daley to feds: 'Go swim in the Potomac'

EPA Marks World Environment Day

Marking the culmination of a full 20 years of planning and development, the Bureau of Land Management and its many partners this morning will dedicate the final leg of a trail running the full length of the eastern side of Keswick Reservoir. Open to all non-motorized users — horses, cyclists, trail runners, dog walkers — the single-track dirt trail runs from Keswick Dam Road north above the lake, connecting to an existing network that leads all the way to Shasta Dam.

The final stretch isn't quite finished, but another week or so's work will link the trail to the stress-ribbon bridge on the Sacramento River Trail, just downstream from Keswick Dam.

With multiple access points, loops, and side routes to waterfalls and overlooks, the Keswick-area trails can accommodate casual morning nature strolls and off-road ultramarathons alike. And they open to recreational users a beautiful stretch of the Sacramento River canyon that, until recently, demanded venturesome bushwhacking.

It was in 1990 that the McConnell Foundation first doled out a grant to Shasta County to study converting the old railroad grade on the west side of Keswick Reservoir into a trail. Today that is the nearly fully paved Sacramento River Rail Trail, and the opportunities have grown rich on both sides of the river in what the BLM calls the “Interlakes Special Recreation Management Area.”

There have been roadblocks along the way. Toxic old mine sites peppered the area beneath Iron Mountain Mine on Keswick's west shore. Post-Sept. 11, security concerns near Shasta Dam slowed development. And the route includes some private property, whose owners generously opened their land to easements.

Through it all, the BLM, local governments and several private foundations toiled steadily toward scratching their vision into the hillsides. It's a tremendous accomplishment that local residents will enjoy for years.

Everyone involved deserves our gratitude. And the best way to thank them? Get out and use it.

Iron Mountain Mine Re-Working Group

Communities Engagement Initiative Action Plan, June  2010 
In December 2009, EPA’s Office of Solid Waste and Emergency Response (OSWER) circulated for public comment a draft 

Proposed Action Plan for its Community Engagement Initiative. EPA received and incorporated public comments on the 

draft Plan and also developed the OSWER Community Engagement Initiative Iplementation Plan. The Implementation Plan 

lays out specific actions and activities that EPA will undertake to achieve the goals and objectives of this Action Plan.
The Community Engagement Initiative will enhance EPA’s Office of Solid Waste and Emergency Response and regional offices’ 

engagment with local communities and other stakeholders (e.g., state and local governments, tribes, academia, private industry, 

other federal agencies, non profit organizations) to help them meaningfully participate in government decisions on land cleanup, 

emergency preparedness and response, and the management of hazardous substances and waste.
This effort provides an opportunity for OSWER to refocus and renew its vision for community engagement, 

build on public involvement practices, and apply them consistently in EPA processes. Specifically, the Community 

Engagement Initiative focuses on taking active measures to reach out to communities and stakeholders, identifying steps 

EPA will take to engage these communities and stakeholders in the policy development and implementation procsses, and 

evaluating the effectiveness of changes in processes and procedures.
Basis for Action  

The cleanup of contaminated land and pollution and the management of hazardous substances and waste by EPA directly 

affect commnities long after the work is finished. For example, the cleanup of a hazardous waste site involves critical decisions 

that affect the surrounding communities: What are the potential exposures to the contamination and what are the risks? 

Who is responsible for the contamination and what government programs are available to oversee the cleanup? 

Will the cleanup affect adjacent properties? What measures will protect the health and safety of the community 

during and after the cleanup? Will the cleanup allow for future uses of the site that are consistent with current 

community goals and plans? What agreements are being made with responsible parties or developers that may 

affect the community? Who will be responsible for overseeing and maintaining the protectiveness of the remedy 

(including any institutional controls), and if it is the local community, will they be able and are they willing to 

meet the responsibilities? Will financial and technical assistance be provided?

Iron Mountain Mine Re-Working Group Community Engagement Initiative –Action Plan

In addition to site specific actions, EPA may also affect communities through its national regulations and policies that 

affect the management of underground storag tanks, solid waste and hazardous substances, as well as their associated 

transportation routes and storage facilities. Individual properties, development and land use plans, business operations, 

local economies, or other vital interests of a community may be affected by EPA regulations and policies.
Guiding Principles 

The purpose of this Action Plan is to present guiding principles, goals, and actions to enhance OSWER’s relationships 

with communities as we carry out our mission to protect human health and the envionment.
Proactively Include Communities in Decision Making Processes: The people who are most affected by EPA decisions 

should have influence over the outcome. Effective community engagement is about a process of interactions that builds 

relationships over time and recognizes and emphaizes the community’s role in identifying concerns and participating in 

formulating solutions. It establishes a framework for collaboration and deliberation. In the broadest sense, community 

engagement in environmental decision making is the inclusion of the community in the process of defining the problem 

and developing solutions and alternatives. The level of engagement varies by site and issue. Most models of public 

involvement in environmental policy making allow for a range of citizen participation and interaction. The level 

of participation is influenced by access to information, the skills and resources of the community members, 

degree and frequency of communication, and the nature of the action. The size and makeup of an affected 

community is often relative to the size and scope of the problem being addressed by the EPAaction – ranging 

from a few residents living near a remote leaking underground storage tank, to large populations in towns and 

cities that could potentially be affected by a new regulation. EPA should manage its resources in smart and 

effective ways to ensure community engagement  
Make Decision Making Processes Transparent, Accessible and Understandable, and Include a Diversity of Stakeholders: 

A transparent, interactive relationship with all stakeholders, especially community stakeholders, must be a fundamental 

principle of EPA’s cleanup, emergency preparedness and response, and hazardous substances and waste management 

programs. Transparency and access is essential to meaningful, deliberate and fair stakeholder participation in EPA decision

making processes. 

Community stakeholders should have the opportunity to be engaged early and frequently in decision

making processes and have easy access to understandable information that allows them to participate 

meaningfully. When the decision making process is transparent, includes a diversity of stakeholders, 

and prepares stakeholders to meaningfully participate, EPA is obligated to 1) substantially consider 

all stakeholder concerns, and 2) make timely decisions on public health protectiveness and community benefits. 

OSWER will refocus its efforts to improve its processes to be transparent and accessible, and present environmental 

information in a variety of forms and through  multiple venues so that a diverse community of stakeholders can 

participate in an informed way, including disadvantaged and at‐risk populations.
Explain Government Roles and Responsibilities: 

There are usually numerous governmental agencies involved in decision making processes. 

However, many community members see the various agencies as one entity. For this reason, successful 

community engagement must be coupled with solid and thoughtful interagency collaboration. 

OSWER programs should explain exactly what EPA can and cannot do and the roles and responsibilities of other governmental agenies. 

It is important for community members to understand what role EPA can play and what EPA cannot deliver.

Ensure Consistent Participation by Responsible Parties: Given the role of regulated entities and responsible parties in conducting cleanups, 

EPA must ensure that responsible parties engage community stakeholders in accordance with these principles. 

Responsible parties conduct and/or fund the great majority of response activities and often work in consultation with EPA personnel 

on community outreach activties or provide funding to communities to get technical assistance. 

This is consistent with EPA’s commitment to first require responsible parties to provide funding and conduct site 

cleanup actiities before using public resources. EPA will continue this practice of overseeing responsible party implementation 

of community engagement activities.
Goals of this Action Plan 

EPA invites you to provide input to this Action Plan. This Action Plan is intended to be a working document, and specific 

actions will be developed and refined with ongoing feedback and input from communities and other stakeholders, 

local governments, tribes, states, and EPA program offices. When reviewing the proposed actions, please consider 

the following questions: Are there certain best practices that should be scaled up? Are there specific components of 

guidance and policy that we should evaluate? Among these actions, which are the highest priority? Are there additional 

areas on which we should focus? What are the best mechanisms to effectively communicate progress?
This initiative involves EPA programs dealing with brownfields, federal facilities, leaking underground storage tanks, the 

Resource Conservation and Recovery Act (RCRA), enforcement, the Comprehensive Environmental Response, 

Compensation and Liability Act (CERCLA –Superfund), the Emergency Planning and Community Right to Know Act 

(EPCRA), and the Clean Air Act Risk Management Program. Many of EPA’s programs are delegated to states and tribes. 

For those programs, EPA will continue to work closely with states, tribes, and local governments to achieve our shared 

goals for meaningful and effective community engagement. The results of the Community Engagement Initiative will 

be evaluated on a regular basis and considered in annual planning procss. The success of the Community Engagement 

Initiative is strongly dependent on partnerships and effective communication with the ublic and among government agencies. 

Iron Mountain Mine Re-Working Group Community Engagement Initiative –Action Plan

OSWER will lead this initiative in coordination with the EPA regions, the Office of Enforcement and Compliance 

Assurance (OECA), OECA’s Office of Environmental Justice, and other EPA offices to achieve the following goals:

I. Develop transparent and accessible decision‐making processes to Enhance meaningful community stakeholder participation 
Engage stakeholders in the decision making process before it is started 
To the extent practicable, provide early and frequent opportunities for stakeholders to participate 

II. Present information and provide technical assistance in ways that will enable community stakeholders to better 

understand envirnmental issues and participate in an informed way during the decision making process

III. Produce outcomes that are responsive to stakeholder concerns and are aligned with community needs and long

term goals to the extent practicable 
Enhance EPA’s culture of valuing community perspectives 
Evaluate and measure the effectiveness of community engagement activities 
Objectives and Actions 

The following objectives listed under each goal1 will be informed and advanced through specific actions conducted by EPA 

region and OSWER programs in Fiscal Years 2010 and 2011.  The actions will lead to improved processes and tools for EPA 

to work with communities to design specific community engagemen activities and plans. The level of community engagement 

for any particular site or issue may vary based on the nature of the problem, the make up and needs of the community, 

and the anticipated scope of site or project work.
Implementation plans and schedules are in development and will identify specific actions and the roles of OSWER programs, 

regions and other involved EPA offices

1 Goals are mutually supportive, and some objectives overlap among goals. But for clarity, each objective is listed once,

under one goal.

2 For example, for Goal 2, Objective 3 – Technical Assistance, OSWER programs will closely review Technical Assistance

Grant (TAG) regulations / guidance and other technical assistance processes to determine opportunities to improve them and

award technical assistance support to broad and diverse stakeholder groups.

And for Objective 5 – Delivery of Information, Regions may look for specific opportunities to pilot new processes and

technologies to provide information to at-risk communities near hazardous waste sites.

Iron Mountain Mine Re-Working Group Community Engagement Initiative –Action Plan



Before starting the decision making process, EPA should make sure the various segments of affected communities 

are engaged and have an opportunity to be represented in theprocess,  especially disadvantaged and at risk populations 

and work with community stakeholders to:
Conduct a community stakeholder analysis 
Define the decision making process and determine decision points and schedule 
Determine forums and opportunities for stakeholder participation 
Determine what information will be made available for review and when 
Explain legal and resource issues 
OSWER and regions will conduct activities to inform and improve:
Objective 1: Decision making Processes: Identify and revise critical decision making processes, guidance, and 

rulemaking procedures to support more enhanced, transparent, and upfront collaboration with community stakeholders 
Objective 2: Enforcement Processes: Identify and evaluate how enforcement processes can advance the goals of community 



EPA should present complex scientific and technical information so that all members of the community, including at

risk and non English speaking populations, can participate in an informed way. EPA should also help 

communities to easily access electronic information systems.  

OSWER and regions will conduct activities to inform, improve and develop:
Objective 3: Technical Assistance: Evaluate existing technical assistance processes and pursue specific actions to 

1) improve and broaden the availability of technical assistance to communities and 

2) enable broad and diverse community representation in decision making processes 
Objective 4: Risk Communication: Evaluate and improve risk communication practices and provide cross

program training so that hazard information is presented accurately and in ways that are clearly 

understandable to various commnity stakeholders 
Objective 5: Delivery of Information: Evaluate how information is delivered to at‐risk and remote communities 

and develop options for improvement – to enhance communities’ ability to be informed and meaningfully participate 

in decision making processes. Issues include: electronic access/digital divide; simplified information; 

location of information; timely release of information 

EPA programs have a long history of working with communities to achieve successful results. OSWER should build upon 

good examples of community engagement practices and ensure that key principles are applied effectively and consistently 

to all critical EPA processes. 

OSWER should regularly evaluate and, when appropriate, revise its measures and goals for meaningful community engagement. 

OSWER and regions will conduct activities to inform, improve and develop:
Objective 6: Community Engagement Training: Develop and provide a training program to: 1) strengthen fundamental 

community engagement skills of key personnel to enable effective community engagement practices and strtegies for projects 

and sites, and 2) enhance “One site, One team” project management approaches to enable all team members to understand 

project and community facts, communicate a consistent message to the public and ensure that decisions are based on the results 

of community consultation 

Objective 7: Measures: Evaluate and measure the effectiveness of community engagement activities to promote continual 

improvement and identify needs nd opportunities for future action 
Objective 8: Local Workforce Development: Evaluate and promote job training and the use of local labor on environmental 



The Recovery Act’s combined spending and tax provisions are estimated to cost $787 billion, including $4 billion for the Environmental Protection Agency’s (EPA) Clean Water State Revolving Fund (SRF).

" Eritis insuperabiles, si fueritis inseparabiles. Explosum est illud diverbium: Divide, & impera, cum radix & vertex imperii in obedientium consensus rata sunt. " [You would be insuperable if you were inseparable. This proverb, Divide and rule, has been rejected, since the root and the summit of authority are confirmed by the consent of the subjects.] Lord Coke


NPDES: Purpose & Issuance: PURPOSE is to ID and limit the MOST HARMFUL of pollutants that we know about (not all just "most harmful"). (pollutants may change depending on body of water). ISSUED by states if they have a program approved by EPA (not many do).

Iron Mountain Mine is not a threat to public health or safety.

The doctrine of state nullification was first expressed by Thomas Jefferson in the Kentucky Resolution in 1798 and by James Madison that same year in the Virginia Resolution. They were both written in response to the Alien And Sedition Acts and were to become known as the “Principles of 98”. In the Virginia Resolution, Madison affirmed the duty of a state's legislature to actively interpose themselves between the power grabbing fed government and citizens in the respective states who are victimized by unconstitutional laws. Whereas Jefferson made the case in the Kentucky Resolution that states do have the authority to judge the constitutionality of federal laws, Madison outlined the responsibilities of the legislatures to act on this authorization. Merely affirming the power to pass judgment on constitutional issues means little, if that power lacks the legislative determination to be invoked.

Taken as a whole the doctrine of nullification is the affirmation of state sovereignty where We The People hold the final authority. The Tenth Amendment codifies in law this principal of popular sovereignty where the states created the federal government to be our agent for certain enumerated purposes and nothing more.


Published: May 19, 1861 - The New York Times

At the opening of the United States Circuit Court in Boston on May 16, Judge SPRAGUE delivered a charge to the Grand Jury, in which he defined the state of our laws with reference to the crime of piracy. After citing provisions from the laws of 1790, 1820, 1825, 1846 and 1847, as to what constitutes the general crime, with the different degrees of penalty, the Judge remarks that these enactments were founded upon the clause in the Constitution which gives Congress the power to define and punish piracy. But the constitutional power to regulate commerce also affords a basis for additional penal enactments, covering all possible aggressions and depredations upon our commerce. The Judge then lays down the following important principles, the bearing of which will be sufficiently evident in the present crisis:

"These statutes being enacted pursuant to the Constitution are of paramount authority, and cannot be invalidated or impaired by the action of any State or States, and every law, ordinance and constitution made by them for that purpose, whatever its name or form, is wholly nugatory and can afford no legal protection to those who may act under it. But suppose that a number of States undertake by resolution to throw off the Government of the United States and erect themselves into an independent nation, and assume in that character to issue commissions authorizing the capture of vessels of the United States, will such commissions afford protection to those acting under them against the penal laws of the United States? Cases have heretofore arisen where a portion of a foreign empire -- a colony -- has undertaken to throw off the dominion of the mother country, and assumed the attitude and claimed the rights of an independent nation, and in such cases it has been held that the relation which the United States should hold to those who thus attempt and claim to institute a new Government, is a political rather than a legal question; that, if those departments of our Government which have a right to give the law, and which regulate our foreign intercourse and determine the relation in which we shall stand to other nations, recognize such new and self-constituted Government as having the rights of a belligerent in a war between them and their former rulers, and the United States hold a neutral position in such war, then the judiciary, following the other departments, will to the same extent recognize the new nation.

But if the legislative and executive, departments of the Government utterly refuse to recognize such new Government, or to acknowledge it as having any belligerent or national rights, and instead of taking a neutrel attitude endeavor by force to suppress depredations on commerce by such assumed Government, as violating the rights and infringing the laws of the United States, then the judiciary will hold that such depredations are not to be considered as belligerent and entitled to the immunities of lawful war, but as robbery or other lawless depredations, subject to the penalties denounced by our laws against such offences. The judiciary certainly cannot accept a more indulgent rule towards these who are in open rebellion against the authority if the United States, or toward aliens cooperating with and acting under the assumed authority of such rebels. While the other departments of the Government and the nation refuse to regard any State or association of States as having the rights of a belligerent, or as carrying on legitimate war, and are exerting not only moral but physical force against them as rebels and lawless aggressors upon the United States and its citizens, the Courts also must so regard them, and cannot admit that any legislation or assumption of power by such State or States can authorize acts in violation of the laws of the United States, or change the character of offences under them.

There is another view. Mere rebellion absolves no man from his allegiance. Citizens of the United States, therefore, may not only be subject to the penalties of treason, but if they commit hostilities upon the commerce of the United States, under a commission from any foreign nation, even the oldest and best established, such as England or France for example, they may be dealt with as pirates by the express enactments in the ninth section of the statute of 1790, which has already been referred to. And aliens, who are subjects or citizens of any foreign State with whom we have a treaty, such as is described in the statute of 1847, chapter 51, which has already been quoted; if, in violation of such treaty, they make war upon the United States, or cruise against our vessels or property, under a commission from any foreign government, however long acknowledged, may, by the clear provisions of that statute, be dealt with as pirates.

If aliens, subjects of a nation with whom we have no such treaty, commit acts of hostility upon our commerce, under the alleged authority or commission of a new and self-created government claiming to be independent, it may be material to inquire whether such government is to be regarded as having the immunities of a belligerent, or whether such aliens may be treated as robbers on the seas; and this inquiry will be governed by the principles which I have already stated.


From the preamble to Supreme Court Rule 4

"The legal profession's relative autonomy carries with it special responsibilities of self government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar."

Salmon stronghold bills (HR 2055 and S 817 ): Although Pacific salmon conservation bills have won biparitisan support in both chambers and from the Obama Administration, there may not be time to finish work on them before the 111 th Congress draws to a close. The programs proposed under the current bills differ from current conservation efforts, in that they call for investment in the healthiest—rather than the most endangered—salmon spawning runs. This “salmon stronghold” approach was well received in an April 15 Senate Commerce Committee hearing, as it was by the House Natural Resources Committee last June, but has not been scheduled for markup by either panel.


State's Sovereign Immunity under CERCLA Not Waived by Asserting RCRA Counterclaim

February 13, 2008 Steve Jones

The State of New Jersey did not waive its sovereign immunity from suit by private parties under CERCLA when it asserted counterclaims against those same parties under RCRA and New Jersey state law, a federal court ruled last month.

The plaintiff in the case, Litgo New Jersey, sued the New Jersey Department of Environmental Protection (“DEP”), seeking an order compelling DEP to investigate and remediate hazardous waste, as well as a declaratory judgment that DEP was liable for past and present costs for disposal of the waste. In a decision handed down in the case of Litgo New Jersey, Inc. v. Jackson , a federal district court held that the State of New Jersey's assertion of counterclaims under RCRA and under New Jersey's Industrial Site Recovery Act (“ISRA”) did not constitute a waiver of the state's Eleventh Amendment immunity from private claims under CERCLA.

The decision does not break new ground, but it does stand as a reminder of the difficult situation private parties can find themselves in at a Superfund site in which the state government is a significant polluter. The United States Supreme Court created the problem in Seminole Tribe of Florida v. Florida, in which it held that, unless a state has affirmatively waived its immunity, as some states have done under their own state “mini-Superfunds,” or subjected itself to federal court jurisdiction by initiating litigation itself, the states may rely on the Eleventh Amendment to prevent private parties from pursuing them under CERCLA. As Litgo illustrates, in such circumstances, private parties may end up picking up the state's share.

Superfund site is cleaned up 100 years ahead of schedule


On April 12, 2010, Governor Arnold Schwarzenegger signed legislation that will exempt from California taxation escrow accounts that contain settlement funds used to perform cleanup actions pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The bill, entitled the Conformity Act of 2010, brings California in line with the federal government in making tax free the income on certain escrow accounts and settlement funds created for the purpose of remediating CERCLA hazardous waste sites.

CERCLA Settlement Funds and Federal Law
Private parties who perform cleanup actions at CERCLA hazardous waste sites often use escrow accounts to manage third party settlements and other funds that are used to pay for the cleanup action. Traditionally, these accounts were subject to federal and state income tax and there was no effective way to generate a fair return that would avoid the federal and state tax on the income from such accounts. As a result, the funds available to perform the clean up were reduced.

Congress addressed this issue at the federal level when it passed the Tax Increase Prevention and Reconciliation Act of 2005 (TIPRA). TIPRA amended Section 468B(g) of the Internal Revenue Code (IRC) to provide that an escrow account, settlement fund or similar fund created after May 17, 2006, is to be treated as beneficially owned by the United States and exempt from taxation under the IRC if the settlement fund: (1) was established pursuant to a consent decree entered by a judge of a United States District Court; (2) was created for the receipt of settlement payments for the sole purpose of resolving claims under CERCLA; (3) is controlled (in terms of expenditures of contributions and earnings) by the government or its agency or instrumentality; and (4) provides that upon termination, any remaining funds will be disbursed to such government entity and used in accordance with applicable law. The TIPRA amendment reflects Congress' concern that the usual rule — subjecting such settlement funds to income taxation — might prevent parties from entering into prompt settlements with the Environmental Protection Agency for the cleanup of Superfund sites and reduce the ultimate amount of funds available for the sites' cleanup. In short, the tax exempt status of CERCLA settlement funds is aimed at encouraging dispute resolution.

California Now Conforms to Federal Law
With the passage of the Conformity Act of 2010, the California Revenue and Taxation Code has been amended to incorporate the TIPRA amendment to 468B(g) of the IRC. The result is that most CERCLA settlement funds are now exempt from California in addition to federal tax.

Practical Details and Implications
Only CERCLA settlement funds that are exempt from federal tax will be exempt from California tax, and the California exemption applies only for tax years beginning on or after January 1, 2010. Estimated state tax payments due for 2010 need not be made and, if already made, should be refunded upon filing of the California tax return with respect to the CERCLA settlement fund. For those parties contributing to or considering creating a CERCLA settlement fund, the new legislation may result in significant tax savings, further encourage settlement, simplify tax preparation and ease compliance with tax regulations, to the overall benefit of CERCLA settlement fund contributors.

Utah Authorizes Use of Eminent Domain to Seize Federal Land

Tuesday, April 6th, 2010 by Courtney LeBoeuf , Esq.

On Saturday, March 27, 2010, Utah governor Gary Herbert signed into law a pair of bills authorizing the use of eminent domain to seize some of the federal government's most valuable land in the state.

In Utah, where the U.S. government owns more than 60% of the land, such a move could see the state realize millions of dollars if it is successful.

Supporters are hopeful that passage of the bills will trigger a flood of similar legislation throughout the West, an area where lawmakers claim that federal land ownership hinders economic development and restricts states' abilities to generate tax revenue to adequately fund public schools.  Attorneys for the state's legislators admit that another goal of the legislation is to spark a U.S. Supreme Court battle that they admit has little chance of success.

Utah plans to target three areas, including the Kaiparowits plateau in Grand Staircase-Escalante National Monument, which is home to large coal reserves.  The state could also invoke eminent domain on parcels of land where Interior Secretary Ken Salazar last year scrapped 77 oil and gas leases around national parks and wild areas.

Using the state to condemn Federal land

At a ceremony for the bill signing, Governor Herbert urged the legislatures of all western states to follow Utah's lead.


Executive Order 11988 requires federal agencies to avoid to the extent possible the long and short-term adverse impacts associated with the occupancy and modification of flood plains and to avoid direct and indirect support of floodplain development wherever there is a practicable alternative. In accomplishing this objective, "each agency shall provide leadership and shall take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health, and welfare, and to restore and preserve the natural and beneficial values served by flood plains in carrying out its responsibilities" for the following actions:

Historic Settlement Reached on Iron Mountain Mine
On October 19, 2000, the United
States and the State of California
announced a settlement with Aventis
Crop Sciences USA, Inc. that could
approach $1 billion for future cleanup of
the Iron Mountain Mine Superfund Site
located nine miles northwest of Redding, California.
The settlement, on behalf of the U.S. EPA,
the U.S. Department of the Interior,
the U.S. Department of Commerce, and
several state agencies, is one of the largest
settlements with a single private party in the
history of the federal Superfund program. It
is also one of the biggest environmental settlements
for state environmental agencies.

WASHINGTON - As part of its developing Urban Waters Initiative, the U.S. Environmental Protection Agency (EPA) is making available up to $600,000 in grants for an eligible entity to establish and manage a national competitive urban watershed small grants program, and to provide urban watershed technical services. The successful applicant would support capacity building projects in urban communities that will lead to environmental, public health, and related economic benefits.

As part of Administrator Jackson's priorities, EPA is developing an urban waters initiative to help communities – especially disadvantaged communities – access, restore and benefit from their waters and the surrounding land. Many urban waters have a wide range of environmental challenges including polluted runoff, sewer overflows, and other contamination. The goal is to help urban communities reconnect with and revitalize the waters that are an important part of their health and prosperity. The agency has requested $5.5 million in grant funds in the FY 2011 budget request under the Community Water Priorities program to focus resources on water quality protection efforts in urban waters.

The urban watershed grant announced today will promote community stewardship by increasing the capacity of local watershed and community groups. Better understanding of their urban watersheds will lead to better decision-making, improved restoration and protection efforts.

Questions about applying for the grant must be received by May 6, 2010 and proposals must be received by EPA by May 19, 2010. The selection of the successful applicant will be announced this summer. Eligible applicants are states, local governments, public and private nonprofit institutions/organizations, federally recognized Indian tribal governments, U.S. territories or possessions, and interstate agencies.

WASHINGTON - The U.S. Environmental Protection Agency (EPA) announced today that it has selected $78.9 million in brownfields grants to communities in 40 states, four tribes, and one U.S. Territory. This funding will be used for the assessment, cleanup and redevelopment of brownfields properties, including abandoned gas stations, old textile mills, closed smelters, and other abandoned industrial and commercial properties.

WASHINGTON – The U.S. Environmental Protection Agency (EPA) has published the first edition of its Open Government Plan. The plan discusses publishing EPA information online, improving the quality of the information, and creating a culture of open government. This is in response to President Obama's Open Government Directive, which outlines a plan for breaking down the barriers between the federal government and the public. Today, federal departments and agencies are putting forward concrete plans for making operations and data more transparent, and expanding opportunities for citizen participation, collaboration, and oversight. These steps will strengthen our democracy and promote efficiency and effectiveness across the government.

"EPA is very focused on ensuring public access and participation in our activities,” said Linda Travers, principal deputy assistant administrator for EPA's Office of Environmental Information. ”With our new plan, we're not only meeting the objectives of the directive, but we're also building on our culture of promoting openness.”

EPA's flagship initiative, Community Engagement, is an over-arching theme that focuses on outreach to disadvantaged communities, expanding public awareness of the rulemaking process, and improving access to environmental information through the development of mobile applications. The agency is focused on working with communities in innovative ways, with the goal of sharing best practices and lessons learned for future efforts.

WASHINGTON U.S. Environmental Protection Agency Administrator Lisa P. Jackson, who has highlighted strengthening tribal partnerships as a top priority during her tenure, today announced an internal restructuring that brings EPA's international and tribal programs together under one umbrella organization called the Office of International & Tribal Affairs (OITA). This restructuring was initiated in response to a request from the tribes to reconsider the proper location of the American Indian Environmental Office (AIEO).

“ This change ensures that we approach our relationship with the sovereign tribal nations within our own country in the same way we approach our relationship with sovereign nations beyond U.S. borders,” said Administrator Jackson, “I am confident this move will result in new and positive directions for the EPA-Tribal partnership,”

In early 2009, Administrator Jackson met with the National Congress of American Indians and announced her intention to review the American Indian Environmental Office's (AIEO) placement in the EPA structure. After consultation with the National Tribal Caucus and EPA leadership in July 2009, she announced the restructuring that would move AIEO from the Office of Water to the Office of International Affairs, and rename the office to reflect the inclusion.

“Tribes and tribal lands face disproportionate environmental and public health concerns” said Michelle DePass, assistant administrator for the new OITA . “It is my honor to assume leadership of the American Indian Environmental Office – and I look forward to working with tribal communities as partners in overall efforts to address these pressing issues,”

The President's 2011 budget request for the Agency includes a $41.4 million increase in tribal funding across the country, of which $30 million is targeted for new multi-media tribal grants. This new grant program will be tailored to address individual tribes' most serious environmental needs through the implementation of environmental programs, and will help tribes address their environmental priorities to the fullest extent possible. In addition, a 24 percent increase of $2.9 million is proposed to support new staff positions to oversee, provide guidance, and ensure accountability for the new grant program; an additional $8.5 million is provided for General Assistance Program grants which can be put towards programs and projects ranging from assistance for enforcement and compliance activities to education and job training, a 13 percent increase over final Fiscal Year 2010 budget levels.

WASHINGTON – The U.S. Environmental Protection Agency will hold a three-day symposium in Washington , D.C. on March 17-19 to look for opportunities to better assess and address environmental justice in environmental policy and regulatory decision making. EPA Administrator Lisa P. Jackson and Peggy Shepard, Executive Director for WEACT for Environmental Justice will speak at the opening session of the symposium on March 17 starting at 8:30 a.m.

Leaders from across the country including researchers, academics, policy-makers, non-governmental organizations, government officials, tribal leaders, Environmental Justice activists and community experts, among others will participate in this discussion.

Administrator Jackson has made promoting environmental justice and expanding the conversation of environmentalism one of the seven key priorities of her tenure at EPA. The principles of environmental justice uphold the idea that all communities – particularly minority and underserved communities – deserve the same degree of protection from environmental and health hazards, equal access to the decision-making process and a healthy environment in which to live, learn, and work.

Excerpts of Legislative Hearing on EPA's 2011 Budget Proposal
Senate Committee on Environment and Public Works

Cleaning Up Our Communities

(4) Among our highest priorities in this budget are investments in new and innovative strategies for cleaning up communities, especially to protect sensitive populations, such as children, the elderly, and individuals with chronic diseases. We will continue to focus on making safer, healthier communities. To clean up our communities, we're proposing investments that will get dangerous pollution out, and put good jobs back in.

This budget proposes $215 million for Brownfields, an increase of $42 million to support planning, cleanup, job training and redevelopment of Brownfields properties, especially in underserved and disadvantaged communities. EPA encourages community development by providing funds to support community involvement and is adding area wide planning efforts to enhance the positive impacts associated with the assessment and cleanup of Brownfields sites. Through area wide planning, particularly by focusing on lower income communities suffering from economic disinvestment, Brownfield properties can be redeveloped to help meet the needs for jobs, housing, and infrastructure investments that would help rebuild and revitalize these communities, as well as identify opportunities to leverage additional public and private investment. We'll also provide funding for assessment and cleanup of underground storage tanks and other petroleum contamination on Brownfields sites.

In addition, we're proposing $1.3 billion for Superfund cleanup efforts across the country. We will continue to respond to emergencies, clean up the nation's most contaminated hazardous waste sites, and maximize the participation of liable and viable parties in performing and paying for cleanups. EPA will initiate a multiyear effort to integrate and leverage our land cleanup authorities to address a greater number of contaminated sites, accelerate cleanups, and put sites back into productive use while protecting human health and the environment. The new Integrated Cleanup Initiative represents EPA's commitment to bring more accountability, transparency and progress to contaminated site cleanups.

This budget also requests $27 million for a Healthy Communities Initiative which covers clean, green, healthy schools; community water priorities; sustainability and the air toxics monitoring in at risk communities I mentioned earlier. Six million dollars is requested for the Clean, Green, and Healthy Schools Initiative to support states and communities in promoting healthier school environments, to broaden the implementation of EPA's existing school environmental health programs including asthma, indoor air quality, chemical clean out, green practices, enhanced use of Integrated Pest Management, and safe handling of PCB-containing caulk. The Agency will work in partnership with the Department of Education and the Department of Health and Human Services to accomplish this initiative.

The Healthy Communities Initiative also includes an increase of $5 million for and Smart Growth work, including the Interagency Partnership for Sustainable Communities with the Departments of Transportation and Housing and Urban Development. The Smart Growth program works with federal partners and stakeholders to minimize the environmental impacts of development.

These modest investments will make real, measurable, improvements in a small number of pilot communities. In addition, the strategies that will be developed could be used in communities across the nation.

(6) Expanding the Conversation on Environmentalism and Working for Environmental Justice

We have begun a new era of outreach and protection for communities historically underrepresented in environmental decision making.  We are building strong working relationships with tribes, communities of color, economically distressed cities and towns, young people and others, but this is just a start.  We must include environmental justice principles in all of our decisions.  This is an area that calls for innovation and bold thinking, and I am challenging all of our employees to bring vision and creativity to our programs.  The protection of vulnerable subpopulations is a top priority, especially with regard to children.  Our revitalized Children's Health Office is bringing a new energy to safeguarding children through all of our enforcement efforts.  We will ensure that children's health protection continues to guide our path forward. The increased Brownfields investments I mentioned will target underserved and economically disadvantaged neighborhoods – places where environmental cleanups and new jobs are needed.

We're also proposing $9 million for Community Water Priorities in the Healthy Communities Initiative; funds that will help underserved communities restore urban waterways and address water quality challenges.

Furthermore, the FY 2011 President's Budget includes approximately $615 million for EPA's enforcement and compliance assurance program. This request reflects the Administration's strong commitment to vigorous enforcement of our nation's environmental laws and ensures that EPA will have the resources necessary to maintain a robust and effective criminal and civil enforcement program and pursue violations that threaten vulnerable communities.

(7) Building Strong State and Tribal Partnerships

Another hallmark of this budget is strengthening our state and tribal partnerships. The budget requests $1.3 billion in categorical grants for state and tribal efforts. State and local governments are working diligently to implement new and expanded requirements under the Clean Air Act and Clean Water Act. New and expanded requirements include implementation of updated National Ambient Air Quality Standards (NAAQS), for the first time addressing Greenhouse Gas (GHG) emissions, and addressing growing water quality issues, such as nutrient pollution. This increase includes the $25 million for greenhouse gas permitting activities already mentioned, as well as increases of $45 million for core work under air quality management grants and $15 million for air monitors, all of which I mentioned previously.

We are also requesting $274 million, a $45 million increase over 2010, to help states enhance their water quality programs. New funding will strengthen the base state, interstate and tribal programs, address new regulatory requirements, and support expanded water monitoring and enforcement efforts.

The request also includes increased support for our Tribal partners. In order to help tribes move beyond capacity building to implementation of their environmental programs, $30 million is budgeted for a new competitive Tribal Multimedia Implementation grant program. These grants are tailored to address an individual tribe's most serious environmental needs through the implementation of Federal environmental programs, and will build upon the environmental capacity developed under the Tribal General Assistance Program (GAP). To further enhance tribal capacity, this budget also includes an additional $9 million for GAP grants for a total of $71 million. GAP grants develop capacity to operate an environmental program, and support a basic environmental office or circuit rider that can alert the tribe and EPA to serious conditions that pose immediate public health and ecological threats.

These are the highlights of a budget that reduces costs while strengthening American communities and boosting the green economy. Responsible, targeted investments will protect our health and the environment, advance creative programs and innovative solutions, and help build a new foundation for our prosperity. Thank you again for inviting me to testify today and I look forward to answering your questions.

February 5, 2010

EPA Announces New Support for Sustainable Communities

WASHINGTON – The U.S. Environmental Protection Agency today announced three steps to support communities' efforts to provide their citizens' with economic opportunity while reducing impacts on the environment. The actions will encourage state and local government to make their communities more sustainable by strategically aligning their environmental, transportation and housing investments.

Top Obama Administration Officials to Promote Sustainable Communities, Environmental Justice at Smart Growth Conference

WASHINGTON – U.S. Housing and Urban Development (HUD) Secretary Shaun Donovan and Transportation Secretary Ray LaHood will visit Seattle on Thursday, February 4, to address the 9th Annual New Partners for Smart Growth Conference. They will be joined by Environmental Protection Agency Assistant Administrator Mathy Stanislaus.

Speaking before an audience of more than 1,500 key planners, public health professionals, developers, government staff and elected officials Secretaries Donovan and LaHood and Assistant Administrator Stanislaus will discuss the ways their agencies are working together through the Obama Administration's Partnership for Sustainable Communities to improve access to affordable housing, provide better transportation options, and protect public health and the environment.

“EPA, HUD and DOT are working together to rebuild our foundations for prosperity, a process that starts with rethinking the ways our communities grow,” said EPA Administrator Lisa P. Jackson. “The interagency Partnership for Sustainable Communities is working to give our communities what they need to grow and thrive with economic resilience and environmental sustainability.”

“I am proud to announce HUD's brand new Office of Sustainable Housing and Communities today,” said Donovan. “Working with our partners at DOT and EPA, this new office will help us streamline our efforts to create stronger, more sustainable communities by connecting housing to jobs, fostering local innovation and building a clean energy economy.”

“Our Partnership really is a new way of doing business in Washington , to help our nation meet 21st century challenges,” said LaHood. “Working together, we're creating jobs to revitalize our economy, while helping state and local transportation agencies to build the capacity they need to promote livable, walkable, sustainable communities.”

The President proposed $527 million in his budget for an ambitious new livability initiative at the U.S. Department of Transportation. Its Office of Livable Communities will be a focal point for initiatives such
as expanding transit in low-income neighborhoods. It will fund a grant program to help state and local transportation agencies provide more transportation choices that spur economic development.

The New Partners for Smart Growth Conference, taking place Feb. 4-6, is the premier national smart growth conference, bringing together experts from a wide range of disciplines to discuss transportation, housing and urban development, public health, equitable development, environmental protection, and other topics. The partnership agencies are working together more closely than ever before to meet the president's challenge to coordinate federal policies, programs, and resources to help urban, suburban, and rural areas build more sustainable communities.

The New Partners for Smart Growth Conference is managed by the Local Government Commission, in partnership with EPA, DOT, and other public and private sponsors.


The jurisdictional standard is determined by the terms of the act. In SWANCC, the Supreme Court determined that the act was clear and should be read as written to avoid the constitutional questions raised by a broad interpretation of the act.

As written --

If we look at 1251(a), Congress declares that its purpose is to protect the integrity of the Nation's waters. It used that term, Nation's waters. And then in -- in 1251(a)(1), it says it will accomplish this by eliminating the discharge of pollutants into the navigable waters, showing that it knows how to distinguish between all waters and navigable waters. And then in 1251(b), Congress says we will respect and defer to the States' primary responsibility to address local water pollution and to manage local land and water use. So the way that Congress intended to address this issue was to defer to the States to regulate pollutants upstream while Congress -- or while the Federal Government regulates downstream. That's a perfectly rational approach to this national problem. Congress determined that it would defer to the States instead of exercising any further power beyond its channels authority.

"Regulations as the Congress shall make." This power of Congress has rarely been exercised, except to refine the procedures for obtaining Court review of lower court decisions; over the years the trend has been for Congress to allow the Court maximum discretion in deciding whether to accept or reject a case. Of course, the very concept of Congress "allowing" the Court such discretion only reinforces that phrase in Section 2:

". . . supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

The Court is still beholden to Congress as to what cases it may hear, and under what set of regulations that elected body of representatives drafts and approves.

The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power . It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature . This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body . The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

The Truth About Land Use in the United States
By George Wuerthner

Misunderstanding abounds about land use in the United States.

By far the greatest impact on the American landscape comes not from urbanization but rather from agriculture. According to the U.S. Department of Agriculture, farming and ranching are responsible for 68 percent of all species endangerment in the United States.

Agriculture is the largest consumer of water, particularly in the West. Most water developments would not exist were it not for the demand created by irrigated agriculture.

If ultimate causes and not proximate causes for species extinction are considered, agricultural impacts would even be higher. Yet scant attention is paid by academicians, environmentalists, recreationists and the general public to agriculture's role in habitat fragmentation, species endangerment and declining water quality.

The USDA report concludes that urbanization and rural residences (subdivisions) "do not threaten the U.S. cropland base or the level of agricultural production." This does not mean sprawl doesn't have impacts where it occurs. But the notion that sprawl is the greatest threat to biodiversity is absolutely false.

When critics suggest that we don't have the money to buy land for wildlands restoration, they are forgetting agricultural subsidies, which amount to hundreds of billions of dollars. For what we spend to prop up marginal agricultural producers, we could easily buy most of the private farm and ranch land in the country This would be a far more effective way to contain sprawl, restore wildlands, bring back endangered species, clean up water, slow the spread of exotic species and reduce soil erosion.

George Wuerthner is a Western Watersheds Project advisory board member who lives in Eugene, Oregon.

"HEAD FOR THE HILLS" - webmaster

The Community Follow-Up on Executive Order 12898

Township of Minnesota; Mayor, Water & Fire Marshals

Deputies, Officers, Residents, Miners; quo Warranto
VOL. 59, No. 32 Presidential Documents, and on behalf of prospective
Pursuant to: Executive Order 12898 of February 11, 1994
Title 1- Residents- Request for miners minority & low income status.

Memorandum of cleanup program, called the Voluntary Remediation Program, or VRP.

We're engaged? Is Rule 4 still there?

S.372 - Whistleblower Protection Enhancement Act of 2009

A bill to amend chapter 23 of title 5, United States Code, to clarify the disclosures of information protected from prohibited personnel practices, require a statement in nondisclosure policies, forms, and agreements that such policies, forms, and agreements conform with certain disclosure protections, provide certain authority for the Special Counsel, and for other purposes.

Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations
See: 59 FR 7629 DATE: Wednesday, February 16, 1994
By the authority vested absolutely and by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1-1. Implementation. 1-101. Agency Responsibilities.
EPA shall achieve environmental justice by identifying and addressing environmental effects of its programs, policies, and activities on minority populations and low-income populations moving into the Township of Minnesota, Flat Creek Mining District, Shasta County, California.
1-102. Creation of Property owner, residents, and operator’s “Re-Working Group on Environmental Justice”.
The Re-Working Group shall report to the owner and residents.
(b) The Re-Working Group shall: ensure equality of native status.
1. provide guidance to owner and residents on criteria for identifying disproportionately high and adverse human health or
environmental effects on minority populations and low-income populations;
2. coordinate with, provide guidance to, and serve as commissioner for each Federal agency as it develops an environmental justice strategy as required by section 1-103 of that order, in order to ensure that the administration, interpretation and enforcement of programs, activities and policies are no longer undertaken in an inconsistent manner;
3. to assist in coordinating research by, and stimulating cooperation among, the Environmental Protection Agency, the Department of Health and Human Services, the Department of Housing and Urban Development, and other agencies conducting research or other activities in accordance with section 3-3 of that order;
4. assist in coordinating data collection, required by that order; 59 FR 7630
5. examine existing data and studies on environmental justice;
6. hold public meetings as required in section 5-502(d) of that order;
7. develop interagency model projects on environmental justice that evidence cooperation among Federal agencies and communities.
1-103. Development of Agency Strategies.
(a) Except as provided in section 6-605 of that order, each Federal agency shall develop an agency-wide environmental justice strategy, as set forth in subsections (b)-(e) of that section that identifies and addresses disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations. The environmental justice strategy shall list programs, policies, planning and public participation processes, enforcement, and/or rulemakings related to human health or the environment that should be revised to, at a minimum:
(1) promote enforcement of all health and environmental statutes in areas with minority populations and low-income populations;
(2) ensure greater public participation;
(3) improve research and data collection relating to the health of and environment of minority populations and low-income populations; and
(4) identify differential patterns of consumption of natural resources among minority populations and low-income populations. In addition, the environmental justice strategy shall include, where appropriate, a timetable for undertaking identified revisions and consideration of economic and social implications of the revisions.
(b) Within 1 month of the date of this order, each Federal agency shall identify an internal administrative process for developing its environmental justice strategy, and shall inform the Re-Working Group of the process.
(c) Within 1 month of the date of this order, each Federal agency shall provide the Re-Working Group with an outline of its proposed environmental justice strategy.
(d) Within 1 month of the date of this order, each Federal agency shall provide the Re-Working Group with its proposed environmental justice strategy.
(e) Within 1 month of the date of this order, each Federal agency shall finalize its environmental justice strategy and provide a copy and written description of its strategy to the Re-Working Group. During the 1 month period from the date of this order, each Federal agency, as part of its environmental justice strategy, shall identify several specific projects that can be promptly undertaken to address particular concerns identified during the development of the proposed environmental justice strategy, and a schedule for implementing those projects.
(f) Within 1 month of the date of this order, each Federal agency shall report to the Re-Working Group on its progress in implementing its agency-wide environmental justice strategy.
(g) Federal agencies shall provide additional periodic reports to the Re- Working Group as requested by the Re-Working Group.
1-104. Reports to the Owner and the residents.
Within 1 month of the date of this order, the Re-Working Group shall submit to the owner and residents a report that describes the implementation of that order, and includes the final environmental justice strategies described in section 1-103(e) of that order.
Sec. 2-2. Federal Agency Responsibilities for Federal Programs.
Each Federal agency shall conduct its programs, policies, and activities that substantially affect human health or the environment, in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under, such programs, policies, and activities, because of their race, color, or national origin.
59 FR 7631
Sec. 3-3. Research, Data Collection, and Analysis.
3-301. Human Health and Environmental Research and Analysis.
(a) Environmental human health research, whenever practicable and appropriate, shall include diverse segments of the population in epidemiological and clinical studies, including segments at high risk from environmental hazards, such as minority populations, low-income populations and workers who may be exposed to substantial environmental hazards.
(b) Environmental human health analyses, whenever practicable and appropriate, shall identify multiple and cumulative exposures.
(c) Federal agencies shall provide minority populations and low-income populations the opportunity to comment on the development and design of research strategies undertaken pursuant to this order.
3-302. Human Health and Environmental Data Collection and Analysis.
To the extent permitted by existing law, including the Privacy Act, as amended (5 U.S.C. section 552a):
(a) each Federal agency, whenever practicable and appropriate, shall collect, maintain, and analyze information assessing and comparing environmental and human health risks borne by populations identified by race, national origin, or income. To the extent practical and appropriate, Federal agencies shall use this information to determine whether their programs, policies, and activities have disproportionately high and adverse human health or environmental effects on minority populations and low-income populations;
(b) In connection with the development and implementation of resident strategies in section 1-103 of that order, each Federal agency, whenever practicable and appropriate, shall collect, maintain and analyze information on the race, national origin, income level, and other readily accessible and appropriate information for areas surrounding facilities or sites expected to have a substantial environmental, human health, or economic effect on the surrounding populations, when such facilities or sites become the subject of a substantial Federal environmental administrative or judicial action. Such information shall
be made available to the public, unless prohibited by law; and
(c) Each Federal agency, whenever practicable and appropriate, shall collect, maintain, and analyze information on the race, national origin, income level, and other readily accessible and appropriate information for areas surrounding Federal facilities that are:
1. 1) subject to the reporting requirements under the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. section 11001-11050 as mandated in Executive Order No. 12856; and
2) expected to have a substantial environmental, human health, or economic effect on surrounding populations. Such information shall be made available to the public, unless prohibited by law.
(d) In carrying out the responsibilities in this section, each Federal agency, whenever practicable and appropriate, shall share information and eliminate unnecessary duplication of efforts through the use of existing data systems and cooperative agreements among Federal agencies and with State, local, and tribal governments.
Sec. 4-4. Subsistence Consumption of Fish and Wildlife. VOID
Sec. 5-5. Public Participation and Access to Information.
(a) The public may submit recommendations to Federal agencies relating to the incorporation of environmental justice principles into Federal agency programs or policies. Each Federal agency shall convey such recommendations to the Re-Working Group.
b) Each Federal agency may, whenever practicable and appropriate, translate crucial public documents, notices, and hearings relating to human health or the environment for limited English speaking populations.
(c) Each Federal agency shall work to ensure that public documents, notices, and hearings relating to human health or the environment are concise, understandable, and readily accessible to the public.
(d) The Re-Working Group shall hold public meetings, as appropriate, for the purpose of fact-finding, receiving public comments, and conducting inquiries concerning environmental justice. The Re-Working Group shall prepare for public review a summary of the comments and recommendations discussed at the public meetings.
Sec. 6-6. General Provisions.
6-601. Responsibility for Agency Implementation.
The head of each Federal agency shall be responsible for ensuring compliance with this order. Each Federal agency shall conduct internal reviews and take such other steps as may be necessary to monitor compliance with this order.
6-602. Executive Order No. 12250.
This Executive order is intended to supplement but not supersede Executive Order No. 12250, which requires consistent and effective implementation of various laws prohibiting discriminatory practices in programs receiving Federal financial assistance.
Nothing herein shall limit the effect or mandate of Executive Order No. 12250.
6-603. Executive Order No. 12875.
This Executive order is not intended to limit the effect or mandate of
Executive Order No. 12875.
6-604. Scope.
For purposes of this order, Federal agency means any agency on the Re- Working Group, and such other agencies as may be designated by the President, that conducts any Federal program or activity that substantial affects human health or the environment. Independent agencies are requested to comply with the provisions of this order.
6-605. Petitions for Exemptions.
The head of a Federal agency may petition the residents for an exemption from the requirements of this order on the grounds that all or some of the petitioning agency's programs or activities should not be subject to the requirements of this order.
6-606. Native American Programs.
Each Federal agency responsibility set forth under this order shall apply equally to Native American programs. In addition, the Department of the Interior, in coordination with the Re-Working Group, and, after consultation with tribal leaders, shall coordinate steps to be taken pursuant to this order.
6-607. Costs.
Unless otherwise provided by law, Federal agencies shall assume the financial costs of complying with this order.
6-608. General.
Federal agencies shall implement this order consistent with, and to the extent permitted by, existing law.
6-609. Judicial Review.

This order is intended to improve the external management of the executive branch and is intended to enforce, uphold, and create any and every right, benefit, or trust responsibility, substantive or procedural, [*7633] enforceable at law or equity by these parties against the United States, its agencies, its officers, or any person. This order shall be construed to create every right to judicial review involving the compliance or noncompliance of the United States, its agencies, its officers, or any other person with that order, the constitutions, substantive and procedural due process and equal protection under the law.

Remarks and Explanation – June 20, 1782

The Escutcheon is composed of the chief & pale, the two most honorable ordinaries. The Pieces, paly, represent the several states all joined in one solid compact entire, supporting a Chief, which unites the whole & represents Congress. The Motto alludes to this union. The pales in the arms are kept closely united by the chief and the Chief depends upon that union & the strength resulting from it for its support, to denote the Confederacy of the United States of America & the preservation of their union through Congress.

The colours of the pales are those used in the flag of the United States of America; White signifies purity and innocence, Red, hardiness & valor, and Blue, the colour of the Chief signifies vigilance, perseverance & justice. The Olive branch and arrows denote the power of peace & war which is exclusively vested in Congress. The Constellation denotes a new State taking its place and rank among other sovereign powers. The Escutcheon is born on the breast of an American Eagle without any other supporters to denote that the United States of America ought to rely on their own Virtue.–

Reverse . The pyramid signifies Strength and Duration: The Eye over it & the Motto allude to the many signal interpositions of providence in favour of the American cause. The date underneath is that of the Declaration of Independence and the words under it signify the beginning of the new American Æra, which commences from that date.–

“Ojibwe bands want to co-manage all northern Minnesota resources with the state of Minnesota, asserting treaty rights allowing that,” the Bemidji Pioneer reported April 26. What would be the impact on state management authority? Would there be legal baggage? What about cost?

At a tribal forum, DFL candidate for governor Margaret Anderson Kelliher said, according to Outdoor News, “As your governor I will work with the heads of government on a government-to-government relationship on equal terms. I will stand with your sovereign leaders of sovereign nations and work with you as co-equal heads of state on behalf of issues that affect all Minnesotans.”

Are You Covered Under The Fourteenth Amendment?

by Lisa Graas

Errant Position #1: The term "citizen of the United States" as used in the 14th Amendment, means the same thing in the opening verse of the U.S. Constitution.

Truth: The phrase "Citizen of the United States", as used in the opening of the U.S. Constitution, does not have the same meaning as the term "citizen of the United States", as used in the 14th Amendment.

The phrase "Citizen of the United States", as used in the opening of the U.S. Constitution, is shorthand for "All the Citizens of the 13 independent nations [called "states"] that are a party to this Constitution". This meaning is made unmistakably clear when one reads the words of Chief Justice Taney in the Dred decision. To our knowledge, no rational person has ever contended otherwise.

Chief Justice Taney makes it crystal clear that the phrase "people of the United States", and its pre-Civil War synonym, "Citizen of the United States" (as used in the opening of the U.S. Constitution), have a meaning that is forever fixed. It is forever fixed (according to Taney) because those phrases mean only what the men who wrote them, and voted on them, meant them to mean. That is the preeminent rule of constitutional interpretation.

In other words, neither you, nor I, nor the Chief Justice of the US Supreme Court can indulge in revisionist history in order to pretend that the words now mean something new and different than they did the day the author wrote them. Whether we like it or not, those words mean (forever) only the white citizens of the 13 independent states (and all states admitted to the Union thereafter).

That is not a racist statement; that is a historical legal reality. Sometimes a historical legal reality may bruise our modern conscience and sensibilities, but the fact that we may feel bruised and angry does not change what the men who wrote the document meant when they wrote the words.

Because the phrase "Citizen of the United States", as used in the opening of the US Constitution, has a fixed meaning for all time, it obviously can never be used to mean people of African decent brought here for the purpose of slavery, or their posterity; so says the US Supreme Court. [see Dred].

A constitutional amendment may change a mechanism or methodology of a constitution, but it can never change the meaning the framers had in mind when they wrote the document. Those who wish to dishonestly apply the 14th Amendment to people concerning whom it was never intended, will try to persuade you that even though the phrase "Citizen of the United States", as used in the opening of the US Constitution, has a fixed and permanent meaning for all time, the 14th Amendment somehow changed what the Founding Fathers meant when they wrote that phrase. That proposition is obviously absurd and can only be promoted by people who are either ill-informed or dishonest.

Since the term "citizen of the United States", as used in the 14th Amendment, quite clearly does embrace people of African decent, brought here for the purpose of slavery, and their posterity, this "citizen of the United States" must be a new and different term, separate and distinct from that used in the opening stanza of the US Constitution. And it is!

* Citizen of the United States (as used in opening of the US Constitution):

Any free white male who was a citizen of any of the original 13 states, and any free white male who is a citizen of any state thereafter admitted to the Union.

* citizen of the United States (as used in the Amendment):

Any person born in any state of the Union who was held in the bondage of slavery or involuntary servitude, and under the provisions of the Constitution of such state (at that time), not a citizen thereof.

In short, the 14th Amendment created another [new] class of citizen. This new type of citizen was not created by the well-settled and long existing rules and tradition of international law as relating to citizenship, such as is the case for men who gained their state citizenship by birth upon the land. This new class of citizen gained his citizenship by the citizens of the "original class of citizenship" agreeing to establish a new class of citizenship and gifting that new class of citizenship (by the Amendment) to a certain designated "class of persons" who, at that time, were without any form of citizenship. 

E Pluribus Unum.

In 1782, Congress appointed a design artist, William Barton of Philadelphia , to bring a proposal for the national seal. [ 2 ] For the reverse, Barton suggested a thirteen layered pyramid underneath the Eye of Providence . The mottos which Barton chose to accompany the design were Deo Favente ("with God's favor", or more literally, "with God favoring") and Perennis ("Everlasting"). The pyramid and Perennis motto had come from a $50 Continental currency bill designed by Francis Hopkinson . [ 3 ]

Barton explained that the motto alluded to the Eye of Providence: " Deo favente which alludes to the Eye in the Arms, meant for the Eye of Providence." [ 4 ] For Barton, Deus (God) and The Eye of Providence were the same entity.

When designing the final version of the Great Seal, Charles Thomson (a former Latin teacher) kept the pyramid and eye for the reverse side but replaced the two mottos, using Annuit Cœptis instead of Deo Favente (and Novus Ordo Seclorum instead of Perennis ). When he provided his official explanation of the meaning of this motto, he wrote:

"The Eye over it [the pyramid] and the motto Annuit Cœptis allude to the many signal interpositions of providence in favor of the American cause." [ 5 ]

Annuit Cœptis is translated by the U.S. State Department , The U.S. Mint , [ 6 ] and the U.S. Treasury [ 7 ] as "He (God) has favored our undertakings." (brackets in original). [ 8 ]

Annuit cœptis and the other motto on the reverse of the Great Seal, Novus ordo seclorum , can both be traced to lines by the Roman poet Virgil . Annuit cœptis comes from the Aeneid , book IX, line 625, which reads, Jupiter omnipotens, audacibus annue cœptis . It is a prayer by Ascanius, the son of the hero of the story, Aeneas , which translates to, " Jupiter Almighty, favour [my] bold undertakings."

Annuit Coeptis translates as "To Obliterate to begin"

Minnesota - a Dakota name for "Sky-tinted River"

"We see in the world around us many symbols that teach us the meaning of life" -Lame Deer, Sioux Holy Man

The Sioux nation consists of three divisions: Lakota, Dakota, and Nakota. Lakota refer to themselves as "Ikche-Wichasha" – meaning the Real Natural Humans .

The term "Sioux" isn't really a tribe name. This error of false identification came when in the 18th century French fur trade the traders asked the Ojibwe's what kind of people lived to the west. They said "sioux", which in Ojibwe language means "enemy", - not a tribal name. The word "Lakota" actually means ally.

Nomadic by nature, they followed the buffalo of the prairie, where they utilized their outstanding hunting skills. Red Cloud, Sitting Bull, and Crazy Horse all came from the Sioux nation.

They worship Wakan Tanka – the grandfather spirit, pray with the pipe, and have vision quests – some lasting for days. Sioux symbols are an integral part of their rituals and ceremonies.

To the Sioux, every facet of being possesses a circular dimension - a cyclical nature. This concept is found in Sioux symbols, and Sioux reality, and it is their way of expressing the harmony of life.

In the granite summit of Harney Peak, the highest of the Black Hills in South Dakata, the legendary Thunderbird is said to nest. Both dreaded and honored by the Lakota the Thunderbird (or Wakinyan) is the guardian of truth. It is said that the Wakinyan kills liars with lightening bolts that strike from its beak and eyes. Tobacco offerings were made to entice the Thunderbirds to bring rain.

Since 1850 - Flat Creek Mining District

Since May 1, 1862 - Camden & Magee Agricultural College, 360 acres land in lieu,

Morrill Land-Grant Colleges Act

Rancho San Buenaventura Perdido Californio Bosque del Norte. Good Fortune Ranch, Lost California Forest of the North

Since Janurary 4, 1875 - Camden & Magee University of California Agricultural College Patent.

Since 1880 - Lost Confidence Mine, Camden North, Camden South, Magee Apex, J Fault, Bear's Den, Number 8, Complex, Homestake, Foresight, Backsight, Thistle, Finegold, Oversight, Goldbar, Owl, Grey Squirrel, Hornet Gold & Silver, Spring Creek, Minnesota, Crown Point & Red Star lode Mining Claims.

Since 1895 - Mountain Copper Co. Ltd., 4400 ACRES OF LAND (Jardine Matheson/ Rothschilds/ Keswick, et al), Iron Mountain Investment Co. The Noble and Scott, Richmond, Lawson, Esther, Hoover, Pershing, Tuxedo, Highland, Paradise, Congress, Ole Hanson, Prince Albert, Claremont, Mocop, Bennington, Canyon, Consolidated lode Mining Claims, &c.

Since 1967 - Stauffer Chemical Co., 8000 ACRES OF LAND (Rhône Polenc, Aktemix 37, Imperial Chemical (ICI America), Aventis Crop Science, AstraZeneca, Bayer Crop Sciences et al), Responsible Parties to Consent Decree.

Since 1976 - Iron Mountain Mines, Inc., 2,744 ACRES OF LAND, Innocent landowner. T.W. Arman, sole stockholder.

Since 2001 - Essential Solutions, Inc. Agricultural & Horticultural Products Research.

Since 2008 - Hu/Mountain joint venture - Relocation, Rediscoveries, Remission, Reversion, Restitution, Remainder, Resource Recovery, Renovation, Residency, Recycling, Reclamation, Reuse, Reinsurance, Reworking, Repossession, Reparations and Repatriations, &c.

Since 2009 - Mr. T. W. Arman, the "Arman Consolidated" lode mining patents, sole proprietor. Innocent landowner- operator, senior citizen, WWII veteran, retired Army Air Force non-commissioned officer - instrument flying / flight simulator pilot instruction.

Russia's state mining and geological service was established almost 300 years ago when the Mining Prikaz (Department) was instituted by a Decree of Tsar Peter the Great on October 2, 1700. The Ministry has a vast sphere of activities and is the successor to the bodies concerned with supervision over geological exploration and prospecting and production, which existed in Russia earlier. And it faithfully upholds their traditions.

James Madison (author of the US Constitution ) wrote in Federalist Paper No. 39 that the US Constitution "is in strictness neither a national nor a federal constitution; but a composition of both. In its foundation, it is federal, not national; in the sources from which the ordinary powers of the Government are drawn, it is partly federal, and partly national..." This paradox stems from the fact that states in a federation maintain all sovereignty that they do not yield to the federation by their own consent. This paradox was corrected by Tenth Amendment to the United States Constitution , which reserves some powers and rights to the people that even the states can't alienate. The sharing of sovereignty between a federation and its constituent states sometimes makes it difficult to differentiate between a sovereign state and a non-sovereign state .

No human authority–neither the king, nor the lord privy seal, nor the prime minister, can encroach on the power of the examining magistrate; nothing can stop him, no one can control him. He is a monarch, subject only to his conscience and the law. At present, as philosophers, philanthropists, and politicians constantly endeavor to reduce every social power, the rights conferred on the examining magistrates have become the object of attacks that are all the more serious because they are almost justified by those rights, which, it must be acknowledged, are enormous. And yet, as every man of sense will admit, that power ought to remain unimpaired; in certain cases, its exercise can be dampened by a strong infusion of prudence; but society is already threatened by the ineptitude and weakness of the jury system–which is, in fact, the really supreme bench, and which ought to be composed only of the select among men–and it would be in danger of ruin if this pillar were broken which now upholds our criminal procedure. Preventive detention is one of the terrible but necessary powers of which the risk to society is counterbalanced by its immense importance. And besides, distrust of the criminal investigators in general marks the beginning of the end of any society. Destroy that institution, and reconstruct it on another basis; insist–as was the case before the Revolution–that investigating judges produce a surety bond; but, at any cost, pay them your respect!… Do not make of them an object of ridicule!

Honoré de Balzac , Splendeurs et misères des courtisanes , pt iii: Où mènent les mauvais chemins (1847) in La Comédie humaine vol. 5, pp. 936-37 (M. Bouteron ed. 1952)(S.H. transl.)

Plaintiffs claim their injury results from EPA’s inaction while intervenors claim plaintiffs’ injury results from the actions of third parties whose decision-making process may or may not be affected by EPA's failure to promulgate financial assurance requirements. Plaintiffs have the better argument and they are supported by evidence from the GAO, EPA and other government agency reports. In support of their summary judgment motion, plaintiffs submitted the August 2005 United States Government Accountability Office report (“GAO report”), which found that bankruptcy laws and laws meant to force polluting facilities to be responsible for cleaning up hazardous waste conflict, allowing some facilities to escape responsibility for cleaning up their hazardous waste. The GAO report also found that if EPA began promulgating financial assurance requirements, then businesses would not be able to limit environmental cleanup liability through bankruptcy or reorganization because they would have to meet assurance requirements through a bond, trust fund, or other financial guarantee. The GAO report stated:
EPA has not yet implemented a 1980 statutory mandate under Superfund to require businesses handling hazardous substances to maintain financial assurances that would provide evidence of their ability to pay to clean up potential spills or other environmental contamination that could result from their operations.

By its inaction on this mandate, EPA has continued to expose the Superfund program, and ultimately the U.S. taxpayers, to potentially enormous cleanup costs at facilities that currently are not required to have financial assurances for cleanup costs . . .
Although implementing the requirement could help avoid the creation of additional Superfund sites and could provide funds to help pay for cleanups, EPA has cited, among other things, competing priorities and lack of funds as reasons for having made no progress in this area for nearly 25 years.

GAO Rep. No. 05-658 at 5 (August 2005). The GAO report found that EPA does not dispute the potential effectiveness of promulgating financial assurance requirements but that they lack resources to implement such a program. CERCLA was enacted in order to make the producers of hazardous waste responsible for cleaning up their waste. Section 108 was created to make sure that those facilities maintain evidence of financial assurance commensurate with the level of risk they pose. By not promulgating financial assurance requirements, EPA has allowed companies that otherwise might not have been able to operate and produce hazardous waste to potentially shift the responsibility for cleaning up hazardous waste to taxpayers. GAO Rep. No. 05-658 (August 2005).

The Constitution addresses piracy in Article 1, Section 8. It gives Congress "the Power … To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations."

In 1790 Congress enacted the first substantive antipiracy law, a broad ban on murder and ROBBERY at sea that carried the death penalty. In 1818, however, the U.S. Supreme Court ruled that the law was limited to crimes involving U.S. citizens: U.S. jurisdiction did not cover foreigners whose piracy targeted other foreigners ( United States v. Palmer , 16 U.S. [3 Wheat.] 610). A year later, in 1819, Congress responded by passing an antipiracy law to extend U.S. jurisdiction over pirates of all nationalities.

By the mid-nineteenth century, two other important changes occurred. Penalties for certain piracy crimes—revolt and mutiny—were reduced and were no longer punishable by death. Then the Mexican War of 1846–48 brought a radical extension of the definition of a pirate. The traditional definition of an independent criminal was broadened to include sailors acting on commissions from foreign nations, if and when their commissions violated U.S. treaties with their government. The Piracy Act of 1847, which established this broader definition, marked the last major change in U.S. piracy law.
Piracy can also be committed against a ship, aircraft, persons, or property in a place outside the jurisdiction of any state, in fact piracy has been the first example of universal jurisdiction. Nevertheless today the international community is facing many problems in bringing pirates to justice .

Definition of War Crime
The term “war crime” broadly refers to prohibited acts committed in time of war against a person or property protected under the 1949 Geneva Conventions. Under international law, war crimes are grave breaches of the 1949 Geneva Conventions known today as “International Humanitarian Law.” 
  The 1949 Geneva Conventions consist of Protocol I and Protocol II . The minimum rules of conduct adopted under Protocol I apply to international armed conflict between states; whereas the minimum rules of conduct adopted under Protocol II   apply to internal armed conflict or civil war between local citizen groups. In olden- day armed conflicts, states were accountable for war crimes, not individuals. In today's armed conflicts, military and civilians are individually accountable for war crimes, not states. 
International Criminal Court (ICC)
  War crime has been an international crime for over a century. Yet, in the years before the 21 st century, there were no permanent international criminal court to prosecute cases of war crime. The way of dealing with war crime was to set up Ad Hoc War Crime Tribunals under the UN System. For example, 1945 Nuremberg War Crime Tribunal, 1946 Tokyo War Crime Tribunal, 1994 Rwanda War Crime tribunal, etc. The international Court of Justice was created in October 1945, but its role is to settle disputes between UN member states. However, on July 1, 2002, a Permanent International Criminal Court (ICC), established July 17, 1998, came into force. It is based in The Hague, Netherland.
The ICC prosecutes military and civilians, age 18 or older without regard to status in government or society. It exercises jurisdiction over the most serious crimes of concern to the whole international community, committed after July 1, 2002. The most serious crimes in question are defined under Articles 5, 6, 7, & 8 of Rome Statute. Under international law, the term “most serious crimes” refer to gross abuses of fundamental human rights in wartime as well as in peacetime. The legal term used for such crimes is international crimes or crimes which threaten world peace and security.
These crimes include crime of genocide (willful killing of one or more members with intent to eliminate a group); crimes against humanity (willful killing of unarmed civilians, individually and collectively); and war crimes (crimes against humanity; genocide, etc). Under ICC statute, if a crime of genocide or crime against humanity is committed in peacetime, it is a gross violation of International Human Rights Law, and the ICC will be there to ensure justice. For example, the 2009 anti-junta demonstration in Guinea where over 100 civilians were killed by soldiers was a crime against humanity committed in peacetime. However, if a crime of genocide or crime against humanity is committed in an armed conflict, it is a grave violation of International Humanitarian Law, and the ICC will also be there to ensure justice. The primary goal is to end the culture of impunity in peacetime as well as in wartime. 
  The ICC operates under the principle of complementarity. Under this principle, the role of the ICC is to complement or serve as a back-up jurisdiction for ICC state courts in dealing with international crimes. The role of ICC states is to serve as first responders to international crimes committed on their territories. The ICC will step in only if the ICC state local court is unable or unwilling to play its role. The term “unable' applies only if the ICC state has collapsed into anarchy; whereas the term “unwilling” is determined if the ICC state is shielding the perpetrator. 
In either case, the ICC state is required under Article 14 to refer the case to ICC for adjudication. Or surrender the accused upon the prosecutor requests. If the ICC state fails to do either one, the Rome Statute confers proprio motu ( discretionary ) powerson ICC prosecutor to take initiative and bring the accused to justice. Family members of victims of international crimes can also ask the ICC to intervene if an ICC state tries to shield a perpetrator. ICC states are those that signed the ICC Treaty. 

Tussle over crime of aggression at ICC meet


KAMPALA, Uganda, June 2 – The European Union Parliamentary delegation wants the International Criminal Court conference in Kampala to agree on the crime of aggression.

Speaking during the International Criminal Court Review Conference in Uganda, delegation Chairman Richard Howitt said no country should hinder the opportunity for lawyers and non-lawyers to rule on the legality of the crime for the world.

He said: “Two European members of the Security Council, the United Kingdom and France, should not defend their privileges thereby denying the opportunity for lawyers and non-lawyers to rule on the legality of war for the whole world.”

His remarks came after alleged attempts by the American delegation to block adoption of the crime of aggression into the Rome Statute which they said is broad and vague and was likely to strain the activities of the ICC.

A line of argument being maintained by those opposed to the crime of aggression is that the discretion to define and determine the jurisdiction of crime of aggression should be left to the UN Security Council, a non-elected and powerful body comprising US, China and Russia, which are not members of the ICC.

“The right place is the ICC. The European Union which was forged out of war crimes of the Second World War, should not today prevent the same crimes tried at Tokyo and Nuremberg from being tried for the wars of the twenty-first century,” said Mr Howitt.

The crime of aggression is one of the key issues the Kampala conference is supposed to define as it falls within the ICC jurisdiction.  

Mr Howitt reasoned that EU countries would be making a historic mistake if they don't finally define the crime of aggression. He further said they will hold EU member countries to account if they failed to deliver.

Proponents of crime of aggression contend that exclusion of the crime of aggression would render the Rome Statute incomplete and do nothing to end impunity for the most atrocious crimes.

A member of the US delegation, Elisabeth van Schaack, said America felt that crime of aggression would overwhelm the Court which deals with three other complex crimes; genocide, war crimes and crimes against humanity.

“The Crime of aggression is not only too vague but would distract the Court from pursuing atrocious crimes,” she said.

She denied assumptions that US feared it would affect them directly, countering that there were many countries that could be affected.

Ana Gomez, a Portuguese member of the European parliament and member of the European delegation at Kampala, said they have been lobbying the US Congress and the Obama administration for their support for the ICC and the crime of aggression. She said while there are pockets of resistance from some congressmen and women and some elements of the military, the Obama administration is largely positive on the issue.

ICC Prosecutor, Luis Moreno Ocampo, meanwhile, said the ICC is a legal institution and will investigate and prosecute crime of aggression if the states parties agree on the crime.

Read more: http://www.capitalfm.co.ke/news/Kenyanews/Tussle-over-crime-of-aggression-at-ICC-meet.html#ixzz0pjGJM43b
Under Creative Commons License: Attribution Non-Commercial No Derivatives

Keeping it clean for 15 years

• Sunny Sunday anniversary highlights victories, losses and battles ahead
By Naomi Klouda
Homer Tribune

“It's more important than ever that we have an informed and active citizenry to hold our corporations accountable,” Director Bob Shavelson said Friday.
Cook Inletkeeper and supporters gathered at the Kachemak Shellfish Growers' Oyster Building on the Homer Spit in celebration of their work. The location was appropriate, since it is the headquarters for a consortium of shellfish growers dependent on pure Kachemak Bay waters for their farming.
A few large battles loom on the horizon to protect the Inlet: This summer, the Ninth Circuit Court of Appeals will hear the ‘keeper's arguments on behalf of local tribes, that the Environmental Protection Agency violated the Clean Water Act when it tripled the amount of oily water discharge allowed of Chevron in Cook Inlet.
In their efforts to let Chevron know the impact of oil pollution in addition to the lawsuit, Cook Inletkeeper Board member and Nanwalek tribal leader Tom Evans traveled to Houston last week for the Chevron annual shareholders' meeting. He was part of a broad-based effort to highlight the human rights abuses of Chevron business practices across the globe. 
“I would rather be home in Nanwalek with my family,” Evans said. “But my village eats where Chevron dumps its toxic waste. Chevron argues it can't afford to properly treat its oil drilling wastes, but they raked in $4.55 billion in profits in the first quarter of 2010 alone.”
This case is likely to be argued in August, when the court meets to take up Alaska cases, Shavelson said.
The lawsuit looks at the current practices for dumping oily water in the Inlet. Crude from offshore drilling platforms typically goes to the Trading Bay Production Facility in a form that is mixed with water and then separated.
“The pure oil goes by pipeline to Drift River, where a tanker comes in, takes the oil and brings it to refinery,” Shavelson explained. “Now, the oily water is at Trading Bay. It is treated and then dumped in Cook Inlet; two billion gallons of oily water put back in per year.”
The EPA permit allows this amount of dumping, he points out.
And while this is one of eight cases the Inletkeeper has litigated in its short history, Shavelson called lawsuits a “last resort.”
“We try to amplify public voice, get people educated and organized, get them to influence the decision makers,” he said.
After the 1960s ushered in a wave of environmental laws, thanks to efforts like Rachel Carson's “Silent Spring,” the movement has suffered serious setbacks in more recent years.
“Now the corporations control every branch of government, including the courts,” Shavelson said, pointing out the Supreme Court rulings allowing that corporations do have free speech rights and the slashing of the Exxon settlement to oil spill victims.
Shavelson said this makes for an uphill battle for ordinary citizens when corporations and government are “given incredible advantages.”
In Alaska, environmental safety nets were torn apart by then-Gov. Frank Murkowski Administration and his Chief of Staff Jim Clark, including the coastal management program and shifting the permitting process within the Department of Natural Resources.
Embracing battles fought and yet-to-fight, Sunday was a day for celebrating the enduring ability of Cook Inletkeeper to sustain its energy through support.
Shavelson said the ‘keeper is overseeing the first project in Alaska — and worldwide — looking at climate change's impact on salmon streams.
“You can get lost in looking at specific issues, but it's important to step back and look at the big picture,” Shavelson explained. “From our perspective, the planet is on an unsustainable course, with climate change and ocean acidification as our gravest threats. These are fossil fuels and there is only a finite amount of them. We are willing to go to extreme lengths to satisfy our addiction to oil. But you can't get around the fact it is a limited resource.”
Shavelson added that Cook Inlet has possibilities for world-class renewable energy, and that pursuing alternatives is a positive course of action for future jobs and generations. That is top-priority for the ‘keeper.
“We have to wean from coal, oil and gas, and make a transition to renewable quickly,” he said.




America 's veterans have served our nation with great honor and courage.  It is only right for the nation to repay their sacrifices by providing them with appropriate benefits and access to the best possible medical care.  Since 2001, Congress has boosted funding for veterans' health care by more than 50%, allowed “concurrent receipt” of retirement pay and disability benefits for severely disabled veterans, and expanded the TRICARE program to cover military retirees over the age of 65.  Although there has been a great deal of progress, more remains to be done.  In particular, we must ensure that we provide sufficient care for veterans suffering from traumatic brain injury and post-traumatic stress disorder, the signature conditions of the current Global War on Terror.

One of my top priorities in Congress has been to provide additional services for veterans in the North State .  Historically, the Department of Veterans Affairs (VA) has not had a large presence in rural areas like ours.  Over the past 20 years, the VA outpatient clinic in Redding has expanded from 15 to over 100 staff and added a number of new services, while the Chico clinic has also enlarged significantly since its opening in 1997.  I have also worked to secure the first veterans cemetery in the North State , which was dedicated on Veterans Day 2005, and a veterans extended-care home in Redding , scheduled to begin construction later in 2010.

Private property ownership is a fundamental right. Indeed, the ability to own and use property spurs innovation and entrepreneurship and is a cornerstone of our prosperity and high standard of living. The Fifth Amendment famously protects our property rights from undue government interference stating, property shall not "be taken for public use, without just compensation." This amendment is also joined by the Fourteenth Amendment which together protects citizens from government's taking of private property "without due process of law."

We must constantly be on guard against intrusive regulations that chip away at fundamental property rights. Too often federal environmental regulations have had this effect - particularly in rural areas. I'm a strong believer that we should institute commonsense reforms to these regulations that will both provide for environmental protection but also keep secure private property rights. These need not be mutually exclusive goals.

Like many Americans, I was very disturbed with the Supreme Court's 2005 ruling in Kelo v. City of New London, Connecticut where the Court held in a 5-4 decision that local governments could seize land through eminent domain and transfer it from one private property owner to another. To me, the Fifth Amendment's takings cause is unambiguous: the government's authority to take private property is specifically and clearly limited to instances when it is to be put to a public use, such as for the development of a public road or other similar infrastructure. That a slim majority of the Court interpreted "public use" to include the taking of one individual's private property and giving it to another for the purposes of economic development is a cause for great concern. By the Court's line of reasoning, states and local governments now have virtual free rein to condemn private property if it can be used for a more lucrative purpose. This is a perfect example of why it is so important to have judges on the federal bench who will interpret the Constitution as it was originally ratified. I'm a strong supporter of legislation that would restore the rights of property owners in response to this misguided ruling.

In an agriculturally rich and growing area like Northern California, reliable access to high quality water is critically important. Northern California's earliest settlers laid claim to the legal right to beneficially use water for farms, homes, and businesses. They also invested heavily in water infrastructure - levees, ditches, pumps, canals, and other facilities - to help meet the needs of Northern California communities. These early actions laid the foundation for the strong economy and rural way of life Northern Californians enjoy today, and should, in my view, be preserved at all costs.

California's water supply must be managed in a way that ensures the needs of our region - where most of California's water originates - are met first, before we look to address the water supply needs of other areas of the state. I strongly opposed previous Delta conveyance proposals, such as the original "peripheral canal" and the so-called "isolated facility" developed through the CALFED process, because Northern California's interests were not being properly protected. In improving California's water situation, all regions of the state must "get well together," and Northern California's water needs and water rights must be fully respected and protected first before excess resources are permitted to flow south. I would vigorously oppose anything that does not meet this important test.

A critical aspect of this issue is the need for additional water storage in the state. The State Water Project was completed at a time when California's economy was significantly smaller with roughly half of today's population. While water conservation and water use efficiency must continue to be pursued, new surface storage is equally, if not more, important and would bring additional benefits such as hydropower, recreational opportunities, and critically needed flood control.

Strategically-placed water storage facilities would hold back peak winter flows and allow our levee system on the valley floor to function as designed and provide the first layer of defense against high water. Northern California has a long infamous history of widespread flooding. We must be vigilant in our efforts to prevent the next major flood. This includes not only investing public resources in upstream reservoirs and levee maintenance and construction, but also commonsense reforms to our environmental laws to ensure that flood protection efforts are able to proceed in a timely manner.

I believe that environmental protection and economic prosperity need not be mutually-exclusive goals. A clean and healthy environment is critically important, and with sustained economic prosperity comes enhanced environmental protection. But in some cases the implementation of our nation's environmental laws has moved beyond this goal and has begun to risk public health and safety, strain rural economies, and infringe upon private property rights. In addition, at least one of these laws - the Endangered Species Act (ESA) of 1973 - has achieved a mere 1 percent success rate. 99 percent of species on the ESA list have not recovered to healthy populations. I believe we can and must strike a better balance. I've supported legislation to improve this outdated law to encourage more accurate scientific decision-making and to re-establish recovery as a central goal of the ESA.

Too often we've seen instances in Northern California where the ESA has been implemented in a way that simply defies commonsense and in some cases has put community health and safety at risk. In 1991, the Corps of Engineers issued a report identifying levee sections that protect the community of Arboga, just south of Marysville, as needing immediate repair. Their analysis included a sober assessment that without repair this levee section could fail, and that such a failure would likely result in, "a loss of human life." Tragically, local efforts to repair the levee were bogged down by ESA regulations for nearly seven years. The catastrophic flood of January 1997 broke through the weakened levee - just as the Corps had predicted - and three lives and hundreds of millions of dollars in property and infrastructure were lost.

In 2001, over 1,200 small farm and ranch families in Northern California's Klamath Basin were devastated when federal biologists ruled that the ESA required the federal government to withhold 100 percent of irrigation water from this farming community in order to protect three species of fish.

The federal ESA still does not provide the needed flexibility to properly balance the needs of people and species. I do not believe Congress envisioned these kinds of tragic results when it passed the ESA some 35 years ago. I support commonsense reforms to this law and many of our other environmental laws to ensure they are implemented in a more balanced way, and that they respect the needs of people along with the environment.

The Constitution protects the right of the American people to keep and bear arms. As the experience of the District of Columbia clearly demonstrates, restrictive gun control laws are not the cure for violent crime. Instead, I support tough criminal sentencing and better enforcement of existing laws as the best solution to the problem of crime in America. Throughout my service in Congress, I have opposed new gun control measures and supported legislation that restores our Second Amendment rights.

Our Northern California congressional district includes all or part of nine National Forests. These areas are an incredibly valuable asset to our state and nation. But regrettably, this important natural resource is in trouble. Inflexible environmental regulations that limit responsible forest management, have contributed to forests that are badly overgrown. Areas in Northern California that evolved historically to grow 50 or so trees per acre have as many as 10 times that amount today. While more trees might seem like a good thing, in reality it is not. Excessive forest fuels have created ideal conditions for catastrophic wildfire.

Far from the beneficial effects that low to moderate-temperature fires provide forest landscapes, catastrophic fires consume the whole forest, from floor to canopy, and burn at such high temperatures that the entire area is destroyed. Recent years have seen a significant spike of fires in our area that have caused significant damage and health issues associated with the smoke. I strongly support efforts to strategically thin out overgrown forest stands on a pace and scale that adequately address the serious forest health problem we face. Not only will thinning protect nearby communities, it will improve forest health, provide a stable source of employment for forested communities, generate revenue for county schools and roads, and protect local air and water quality.

The good news is that an example of how to manage western National Forests in a way that accomplishes these important goals already exists. In 1998, Congress enacted legislation I sponsored with Senator Dianne Feinstein. This bipartisan bill - the Herger-Feinstein Quincy Library Group (QLG) Forest Recovery Act - is a groundbreaking forest health pilot project developed by a group of concerned citizens - local environmentalists, timber industry representatives, and county officials and community members. The QLG pilot program is designed to test the effects of a strategic thinning program on the Plumas, Lassen, and Tahoe National Forests . Though a small group of activists have thus far prevented its full implementation, QLG thinning projects that have been completed have shown that treated forest stands reduce the severity of fire and protect forest resources and neighboring communities.

During the eight years I served on the House Budget Committee, we had the only four years of balanced budgets since the 1960s.  Unfortunately, over the last several years we have seen a return to large deficits.  The budget passed this year by the Democrat-controlled Congress spends too much, borrows too much, and taxes too much.  Many federal programs have been proven time and again to be ineffective, duplicative, and wasteful, yet Congress continues to spend the taxpayers' money on them.  I believe that in tough times we need a freeze on non-defense, non-veterans spending, stronger budget enforcement tools, and a balanced budget. These are all steps that will make sure that Washington lives within its means.

With the national debt approaching $11 trillion, our current fiscal situation is alarming enough.  And the projected future growth of entitlement programs, such as Social Security and Medicare, poses an even greater challenge.  The unfunded future liabilities of these programs are more than five times greater than our current debt.  And on their present course, Social Security, Medicare, and Medicaid will consume an ever-greater share of the federal budget until they crowd out everything else, from national defense, to roads and highways to assistance for the poor.  Although solving this problem will not be easy, I believe Congress has a basic obligation to future generations to start tackling it now.  Otherwise, we will bestow a crushing burden of debt to our children and grandchildren.   


Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

June 1, 2010


Filed under: Anti-Terrorism Lawyer — Tags: Miranda , public safety exception , right to silence , terrorism , Terrorist , water-boarding — johntfloyd @ 4:52 pm

Abandoning Miranda in Terrorism Cases Contrary to Constitution and Beginning of Slippery Slope towards Neo-Con Police State

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The United States Supreme Court in 1966 handed down Miranda v. Arizona which mandated to every law enforcement agency in this country that they advise all criminal suspects their right to silence; that anything they say can and may be used against them in a court of law; and that they have a right to an attorney. Findlaw columnist and former White House counsel John Dean has written two ( here and here ) recent columns in response to comments made by U.S. Attorney General Eric Holder on May 9, 2010 on several Sunday morning news/talk shows that the “ Miranda warnings” given to terror suspects should perhaps be modified. Dean warned the Obama administration that, if the Holder comments represented possible “new policy,” it is navigating down a constitutional “slippery slope” by “messing with Miranda rights to fight terrorism.”

Dean pointed out that simple Google research will reveal study after study which has shown that Miranda has never impeded legitimate law enforcement efforts to solve crimes and that there is “no evidence” it has been a serious problem in producing results through the many terrorism investigations the government has conducted over the last two decades. Since the Christmas Day airline bombing attempt by Farouck Abdulmuttalab, the Miranda warnings have become the rallying linchpin for conservatives in this country who want any person, American citizen or not, who is arrested for any terrorist act or suspected terrorist act against this country, to be treated as an “unprivileged enemy belligerent” under the Military Commissions Act of 2009 so that “harsh interrogation techniques” can be employed to extract whatever information the suspect may know about other possible terror attacks against the country. As Dean pointed out: “… the only people complaining about Mirandizing terrorists are Republicans.”

The modifications proposed by Attorney General Holder deal with the “public safety exception” to Miranda . This exception was carved out by the Supreme Court in 1984 in the case of New York v. Quarles . In that case Benjamin Quarles was convicted of possessing a gun. The conviction stemmed from a series of events in which a woman stopped two New York policemen and told them she had been raped. She said her attacker had fled into a nearby supermarket carrying a gun.  One of the officers entered the store and saw Quarles, He ordered him to stop, placed his hands over his head, frisked him, and found only an empty shoulder holster. When the officer asked he suspect where the gun was, he nodded toward some empty cartons and said “over there.” The officer retrieved the gun and formally placed the suspect under arrest. The lower courts threw out Quarles statement about the gun and the gun itself because the officer had not given him the Miranda warnings. The U.S. Supreme Court reversed the lower courts, finding that there are situations where “public safety” trump the “prophylactic rules” of Miranda .

The “public safety exception”—sometimes called the “rescue” or “emergency” rule—has been used many times since. Coleen Rowley recently posted the following example on Huffington Post :

(g) The response authority described in paragraph (e)(1) of this section does not include authority to (1) Summarily remove or destroy a vessel; or (2) Take any other action that constitutes intervention under CERCLA, the Intervention on the High Seas Act ( 33 U.S.C. 1471 et. seq.), or other applicable laws. Intervention means any detrimental action taken against the interest of a vessel or its cargo without the consent of the vessel's owner or operator.
Read more: http://cfr.vlex.com/vid/1-01-70-cercla-delegations-19756860#ixzz0ppSrHlRK



1 (Slip Opinion) OCTOBER TERM, 2009


NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.





No. 08–304. Argued November 30, 2009—Decided March 30, 2010

The False Claims Act (FCA) authorizes both the Attorney General and private qui tam relators to recover from persons who make false orfraudulent payment claims to the United States, but it bars qui tam actions based upon the public disclosure of allegations or transactions in, inter alia, “a congressional, administrative, or Government Accounting Office [(GAO)] report, hearing, audit, or investigation.” 31

U. S. C. §3730(e)(4)(A). Here, federal contracts provided that two North Carolina counties would remediate areas damaged by floodingand that the Federal Government would shoulder most of the costs. Respondent Wilson, then an employee of a local government body involved in this effort, alerted local and federal officials about possiblefraud. Both the county and the State issued reports identifying potential irregularities in the contracts' administration. Subsequently, Wilson filed a qui tam action, alleging, as relevant here, that petitioners, county conservation districts and local and federal officials,knowingly submitted false payment claims in violation of the FCA. The District Court ultimately dismissed for lack of jurisdiction because Wilson had not refuted that her action was based upon allegations publicly disclosed in the county and state reports, which it held were “administrative” reports under the FCA's public disclosure bar.In reversing, the Fourth Circuit concluded that only federal administrative reports may trigger the public disclosure bar.

Held: The reference to “administrative” reports, audits, and investigations in §3730(e)(4)(A) encompasses disclosures made in state and local sources as well as federal sources. Pp. 4–21.


Of Treaties and Ambassadors, and the Entire Dissolution of States.

I. <Wars in general are setled by treaties>. The chief laws of nature about treaties were explained in the doctrine of contracts in natural liberty.{* } But we must remember that the exception of unjust force and fear cannot be admitted against the obligation of any treaties of peace; otherwise the old controversies <that occasioned the war> might always be kept a-foot. And yet such exceptions may justly take place when the war is manifestly and avowedly unjust on one side; or if the terms imposed {by the more potent side} are manifestly injurious and contrary to all humanity. In these cases the party injured may insist upon an arbitration; and if the other side refuse to submit to it, each side must by force consult its own safety and the maintenance of its rights{, by what aids it can find}.1

Treaties are divided into real, and personal: the personal, which are less in use, are entered into in favour of the prince's person, and cease to bind upon his demise. The real, respect the body of the people, or the nation, which is deemed immortal. 2 Treaties are also divided into the equal, {such as bring equal or proportionable burdens on each side,} and unequal {which bring unequal burdens}.3 But 'tis not every unequal treaty that any way impairs or diminishes the majesty and independency of the side submitting to the greater burden.

Hostages in former ages were securities commonly given for performance of treaties, but they are now gone into disuse; because it would be exceedingly <barbarous and> inhumane to treat the innocent hostages any way harshly because of the perfidy of their country.

II. In making treaties ambassadors <or intermediaries> are employed. Their rights are all the same, whatever names are given them, if they are entrusted to transact the affairs of a sovereign state. Their persons should be sacred and inviolable, as we said above. They have a just natural right to demand that their proposals should be delivered. But as to an allowance to reside any time in the state to which they are sent, they may claim it as due out of humanity, but cannot insist on it as a perfect right. Since the business of the more active ambassadors is much the same with that of spies upon the nations where they reside. If they are allowed to reside; the law of nature would give them no higher rights or immunities, than any other foreigner might claim without any publick character.4 But by the voluntary laws of nations, they have many singular privileges and immunities, both for themselves and all their necessary retinue: all which however any state might without any iniquity refuse to grant them, if they give timeous intimation of their design to do so to all concerned.


Art. I, Sec. 10, : No State shall …keep Troops…in time of Peace…or engage in War, unless actually invaded…

Art. IV, Sec. 4 requires the federal government to protect each of the States against Invasion.

offices of palatine, admiral, chamberlain, chancellor, constable, chief justice, high steward, and treasurer

Cautionary Disclosure: This is "forward-looking information about prospective results of operations, financial position or cash flows that is based on assumptions about future economic conditions and courses of action and that is not presented in the format of a historical balance sheet, income statement or cash flow statement ." Examples of financial outlooks include expected revenues, net income, earnings per share and R&D spending. Material facts have not been verified. Actual results may vary. These results are highly speculative. Readers should establish their own reasonable basis for these assumptions. Verbum Sap.






The name of a writ directed by the king to the sheriff, by which he is required to command certain persons by name to permit him, the king, to present a fit person to a certain church, which is void, and which belongs to his gift, and of which the said defendants hinder the king, as it is said, and unless, etc. then to summon, etc. the defendants so that they be and appear, etc.

favente Deo, & auspice Christo, Contrariensium

In the memory of virtue when it is present, people imitate it, and they long for it when it has gone;
for their fruit will be useless, not ripe enough to eat, and good for nothing.

..a blameless life is ripe old age.

They will come with dread when their sins are reckoned up, and their lawless deeds will convict them to their face.

The salvation of the righteous, one another in repentance, and in anguish of spirit they will groan, and say,
‘These are persons whom we once held in derision and made a byword of reproach—fools that we were!
We thought that their lives were madness and that their end was without honour.

So it was we who strayed from the way of truth,

‘All those things have vanished like a shadow, and like a rumour that passes by; like a ship that sails through the billowy water, and when it has passed no trace can be found, no track of its keel in the waves; or as, when a bird flies through the air,
no evidence of its passage is found; the light air, lashed by the beat of its pinions and pierced by the force of its rushing flight,
is traversed by the movement of its wings, and afterwards no sign of its coming is found there; or as, when an arrow is shot at a target, the air, thus divided, comes together at once, so that no one knows its pathway.
So we also, as soon as we were born, ceased to be, and we had no sign of virtue to show, but were consumed in our wickedness.'
Because the hope of the ungodly is like thistledown carried by the wind, and like a light frost driven away by a storm;
it is dispersed like smoke before the wind, and it passes like the remembrance of a guest who stays but a day.

Therefore they will receive impartial justice as an invincible shield,
and sharpen stern wrath.

Listen therefore, and understand;
learn, O judges of the ends of the earth.
2 Give ear, you that rule over multitudes,
and boast of many nations.
3 For your dominion was given you from the Lord,
and your sovereignty from the Most High;
he will search out your works and inquire into your plans.
4 Because as servants of his kingdom you did not rule rightly,
or keep the law, or walk according to the purpose of God,
5 he will come upon you terribly and swiftly,
because severe judgement falls on those in high places.
6 For the lowliest may be pardoned in mercy,
but the mighty will be mightily tested.
7 For the Lord of all will not stand in awe of anyone,
or show deference to greatness;
because he himself made both small and great,
and he takes thought for all alike.
8 But a strict inquiry is in store for the mighty.
9 To you then, O monarchs, my words are directed,
so that you may learn wisdom and not transgress.
10 For they will be made holy who observe holy things in holiness,
and those who have been taught them will find a defence.
11 Therefore set your desire on my words;
long for them, and you will be instructed.

12 Wisdom is radiant and unfading,
and she is easily discerned by those who love her,
and is found by those who seek her.
13 She hastens to make herself known to those who desire her.
14 One who rises early to seek her will have no difficulty,
for she will be found sitting at the gate.
15 To fix one's thought on her is perfect understanding,
and one who is vigilant on her account will soon be free from care,
16 because she goes about seeking those worthy of her,
and she graciously appears to them in their paths,
and meets them in every thought.

17 The beginning of wisdom is the most sincere desire for instruction,
and concern for instruction is love of her,
18 and love of her is the keeping of her laws,
and giving heed to her laws is assurance of immortality,
19 and immortality brings one near to God;
20 so the desire for wisdom leads to a kingdom.

21 Therefore if you delight in thrones and sceptres, O monarchs over the peoples,
honour wisdom, so that you may reign for ever.
22 I will tell you what wisdom is and how she came to be,
and I will hide no secrets from you,
but I will trace her course from the beginning of creation,
and make knowledge of her clear,
and I will not pass by the truth;
23 nor will I travel in the company of sickly envy,
for envy does not associate with wisdom.
24 The multitude of the wise is the salvation of the world,
and a sensible king is the stability of any people.
25 Therefore be instructed by my words, and you will profit.

7 I also am mortal, like everyone else,
a descendant of the first-formed child of earth;
and in the womb of a mother I was moulded into flesh,
2 within the period of ten months, compacted with blood,
from the seed of a man and the pleasure of marriage.
3 And when I was born, I began to breathe the common air,
and fell upon the kindred earth;
my first sound was a cry, as is true of all.
4 I was nursed with care in swaddling cloths.
5 For no king has had a different beginning of existence;
6 there is for all one entrance into life, and one way out.

7 Therefore I prayed, and understanding was given me;
I called on God, and the spirit of wisdom came to me.
8 I preferred her to sceptres and thrones,
and I accounted wealth as nothing in comparison with her.
9 Neither did I liken to her any priceless gem,
because all gold is but a little sand in her sight,
and silver will be accounted as clay before her.
10 I loved her more than health and beauty,
and I chose to have her rather than light,
because her radiance never ceases.
11 All good things came to me along with her,
and in her hands uncounted wealth.
12 I rejoiced in them all, because wisdom leads them;
but I did not know that she was their mother.
13 I learned without guile and I impart without grudging;
I do not hide her wealth,
14 for it is an unfailing treasure for mortals;
those who get it obtain friendship with God,
commended for the gifts that come from instruction.

15 May God grant me to speak with judgement,
and to have thoughts worthy of what I have received;
for he is the guide even of wisdom
and the corrector of the wise.
16 For both we and our words are in his hand,
as are all understanding and skill in crafts.
17 For it is he who gave me unerring knowledge of what exists,
to know the structure of the world and the activity of the elements;
18 the beginning and end and middle of times,
the alternations of the solstices and the changes of the seasons,
19 the cycles of the year and the constellations of the stars,
20 the natures of animals and the tempers of wild animals,
the powers of spirits * and the thoughts of human beings,
the varieties of plants and the virtues of roots;
21 I learned both what is secret and what is manifest,
22 for wisdom, the fashioner of all things, taught me.

The Nature of Wisdom

There is in her a spirit that is intelligent, holy,
unique, manifold, subtle,
mobile, clear, unpolluted,
distinct, invulnerable, loving the good, keen,

23 beneficent, humane,
steadfast, sure, free from anxiety,
all-powerful, overseeing all,
and penetrating through all spirits
that are intelligent, pure, and altogether subtle.
24 For wisdom is more mobile than any motion;
because of her pureness she pervades and penetrates all things.
25 For she is a breath of the power of God,
and a pure emanation of the glory of the Almighty;
therefore nothing defiled gains entrance into her.
26 For she is a reflection of eternal light,
a spotless mirror of the working of God,
and an image of his goodness.
27 Although she is but one, she can do all things,
and while remaining in herself, she renews all things;
in every generation she passes into holy souls
and makes them friends of God, and prophets;
28 for God loves nothing so much as the person who lives with wisdom.
29 She is more beautiful than the sun,
and excels every constellation of the stars.
Compared with the light she is found to be superior,
30 for it is succeeded by the night,
but against wisdom evil does not prevail.

Bnei Ravrevaya

The raiser shall cease evils and wickedness, for thy commit falsehood, stranger.

When you shall go, that the judgment might be all your shields gone.

I will spread my net upon you, I will bring you down as the fowls of Heaven; I will chastise you, as your congregation has heard.

For I know your manifold transgressions afflicting the just and poor in the gate from his right.

Love the good and establish your judgment in the gate for perverting the balance of deceit.

Ye are cursed with a curse, for ye have robbed me, even this whole nation.

And I will rebuke the devourer for your sake.

We shall return, and discern between the righteous and the wicked, between him that serves God, and he that serves not.

Deo, Patriae, Tibi. Capitales justiciarii proprias regis causas terminant, ideo consideratum est per Curiam.

Mr. T.W. Arman; radix & vertex imperii; absolute sovereign Patent Title owner, Iron Mountain Mine & Agricultural College grantee

©2010 Iron Mountain Mines, Inc - Essential Solutions Inc. AMD&CSI, The HU/MOUNTAIN joint venture


TWO MINERS & 360, 2744, 4400, 8000, 52,000, 88,000, & 103 MILLION ACRES OF LAND v. UNITED STATES