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Letters Patent and Leave for Reprisal Privateering Arrest Warrant: hostis humani generis; pillage, a species of treason.

Formerly this offence was only cognizable by the Admiralty courts, whose proceedings were based upon the civil law, but by the statute 28 Hen. VIII. c. 15 (1536) a new jurisdiction proceeding according to the common law was set up which modified and regulated by subsequent enachments, such as 39 Geo. III. c. 37 (1798-99), 4 & 5 Will. IV. c. 36 (1834), and 7 & 8 to Vict. c. 2 (1844), continues to be the tribunal by which offenders of this description are tried.

At a very early period of English history the law provided for the restitution of property taken by pirates, if found within the realm, whether belonging to strangers or Englishmen; but any foreigner suing for the recovery of his goods was required to prove that at the time of the capture his own sovereign and the sovereign of the captor were in mutual amity, for it was held that piracy could not be committed by the subjects of states at war with each other. In England the crown is, generally speaking, entitled to all bona piratorum; but if any person can establish a title to the goods the claim of the crown thereto ceases by 13 & 14 Vict. c 26 (1850), ships and effects captured from pirates are to be restored on the payment of one-eight of their value (by way of salvage), which is to be distributed among the recaptors.

Cowel (Law Dict., 1727) states that in former times the word pirate was used in a better sense than that of a sea-robber, being attributed to persons to whose care the mole or pier of a haven was entrusted, and, quoting the learned Spelman, he adds, sometimes to a sea soldier: "Robertus vero Comes (Normaniae) attemptavit venire in Anglian cum magno exercitu, sed a pirates Regis qui curam maris a Rege (Willielmo) susceperant repulses est" (Glossarium, 1687, p. 460). ( J. C. W.)

Piracy, being a crime not against any particular state but against all mankind, may be punished in the competent court of any country where the offender may be found or into which he may be carried. But, whilst the law of nations gives to every one the right to pursue and exterminate pirates without any previous declaration of war (pirates holding no commission or delegated authority from any sovereign or state), it is not allowed to kill them without trial except in battle. Those who surrender or are taken prisoners must be brought before the proper tribunal and dealt with according to law.




The standard for an environmental hazard

Litigators clean up while taxpayers are taken to the cleaners


You [should] not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harm it would cause if improperly administered ~ LBJ

EXTORTION: The obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. 18 U.S.C. § 1951(b)(2).

DUE PROCESS: "immutable and fundamental principles of justice." See Rochin v. California, 342 U.S. 165 , 176, 72 S.Ct. 205, 211, 96 L.Ed. 183 (1952) "the conduct of law enforcement agents (may be) so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." 411 U.S. at 431-32, 93 S.Ct. at 1642-43

MANUFACTURED JURISDICTION: "the circumstances relied upon to establish federal jurisdiction over the offenses charged were artificially created by the Government in an attempt to exceed the proper scope of federal law enforcement." 501 F.Supp. at 1205.

In Dalliba v. Riggs, 7 Ida. 779, 82 Pac. 107, it was laid down that while a court of equity can appoint a receiver to perfect and preserve mining property, it “ has no authority to place its receiver in charge of such property and operate the same, carrying on a general mining business, and while it turns out to be at a loss, as is likely to be the result in such cases, charge the same up as a preferred claim and lien against the property, to the prejudice and loss of the holders of prior recorded liens on the same property” (82 Pac. At pp. 108-109). In that case the receiver appeared to have carried on the mining operations without any order of court directing him to do so and with reckless extravagance, and in addition was shown not only not to have kept accurate accounts but also to have made in the account filed “many charges against the estate where no charge whatever should have been made and none in fact existed.” The court accordingly denied the receiver any allowance for his own time or services and any allowance for attorney's fees. - JUSTICE BRANNON

On March 12, 2010, the United States District Court for the Eastern District of California dismissed the entire complaint in Hinds Investments, L.P. v. Team Enterprises, Inc ., 2010 U.S. Dist. LEXIS 23395 ( “Hinds ”), asserting CERCLA liability & federal and state law claims against Kirrberg/Multimatic, the manufacturers of a dry cleaning machine, citing the “arranger” liability holding in Burlington Northern and Santa Fe Railway Co. v. United States , 129 S. Ct. 1870 (May 4, 2009).

May 24, 2010: Deutsche Bank Natl. Trust Co. v Stevens – An Assignee of Such a Mortgage Does Not Have Standing to Foreclose Unless the Assignment is Complete at the Time the Action is Commenced. Posted by Foreclosure Fraud

"Divide et impera, the reprobated axiom of tyranny, is under certain qualifications, the only policy, by which a republic can be administered on just principles." ( James Madison recommends in a letter to Thomas Jefferson of 24 October 1787, summarizing the thesis of The Federalist #10 )

Perpetual Peace: A Philosophical Sketch by Immanuel Kant (1795), Appendix one. divide et impera is the third of three political maxims. The other being Fac et excusa and Si fecisti, nega. Typical elements of this technique are said to involve

The use of this strategy was imputed to administrators of vast empires, including the Roman and British , who were charged with playing one tribe against another to maintain control of their territories with a minimal number of imperial forces. The concept of "Divide and Rule" gained prominence when India was a part of the British Empire, but was also used to account for the strategy used by the Romans to take Britain, and for the Anglo-Normans to take Ireland. It is said that the British used the strategy to gain control of the large territory of India by keeping its people divided along lines of religion, language, or caste, taking control of petty princely states in India piecemeal.

Also mentioned as a strategy for market action in economics , it can be applied to get the most out of the players in a competitive market.

" 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

"I pledqe allegiance to the flag, of the United States of America, and to the Republic for which it stands; One Nation -under God, indivisible, with liberty and justice for all."

An exigent circumstance , in the American law of criminal procedure , allows law enforcement to enter a structure without a warrant , or if they have a " knock and announce " warrant, without knocking and waiting for refusal under certain circumstances. It must be a situation where people are in imminent danger, evidence faces imminent destruction, or a suspect will escape.

In the criminal procedure context, exigent circumstance means:

An emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect, or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the extraordinary situation must be measured by the facts known by officials. [ 1 ]

Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts. [ 2 ]

Exigent circumstances may make a warrantless search constitutional if probable cause exists. The existence of exigent circumstances is a mixed question of law and fact. [ 3 ] There is no absolute test for determining if exigent circumstances exist, but general factors have been identified. These include: clear evidence of probable cause; the seriousness of the offense and likelihood of destruction of evidence ; limitations on the search to minimize the intrusion only to preventing destruction of evidence; and clear indications of exigency.

Exigency may be determined by: degree of urgency involved; amount of time needed to get a warrant ; whether evidence is about to be removed or destroyed; danger at the site; knowledge of the suspect that police are on his or her trail; and/or ready destructibility of the evidence. [ 4 ] In determining the time necessary to obtain a warrant, a telephonic warrant should be considered. As electronic data may be altered or eradicated in seconds, in a factually compelling case the doctrine of exigent circumstances will support a warrantless seizure.

Even in exigent circumstances, while a warrantless seizure may be permitted, a subsequent warrant to search may still be necessary. [ 5 ]


  1. ^ People v. Ramey , 545 P.2d 1333,1341 (Cal. 1976)
  2. ^ United States v. McConney , 728 F.2d 1195, 1199 (9th Cir.), cert. denied, 469 U.S. 824 (1984)
  3. ^ United States v. Anderson , 154 F. 3d 1225 (10th Cir, 1998) cert. denied 119 S. Ct. 2048 (1999) (citations omitted)
  4. ^ United States v. Reed , 935 F. 2d 641 (4th Cir.), cert. denied, 502 U.S. 960 (1991).
  5. ^ See Grosenheider, supra and United States v. David , 756 F. Supp. 1385 (D. Nev. 1991)

Federal Reserve Act

Section 13. Powers of Federal Reserve Banks

5. Limitation on Discount of Paper of One Borrower

The aggregate of notes, drafts, and bills upon which any person, copartnership, association, or corporation is liable as maker, acceptor, indorser, drawer, or guarantor, rediscounted for any member bank, shall at no time exceed the amount for which such person, copartnership, association, or corporation may lawfully become liable to a national banking association under the terms of section 5200 of the Revised Statutes, as amended: Provided, however , That nothing in this paragraph shall be construed to change the character or class of paper now eligible for rediscount by Federal reserve banks.

[12 USC 345. As reenacted without change by act of March 3, 1915 (38 Stat. 958); and amended by act of Sept. 7, 1916 (39 Stat. 752), which completely revised this section; and by act of April 12, 1930 (46 Stat. 162).]






Appendix to Subpart A of Part 215 - Section 5200 of the Revised Statutes Total Loans and Extensions of Credit

   (a)(1) The total loans and extensions of credit by a national banking association to a person outstanding at one time and not fully secured, as determined in a manner consistent with paragraph (2) of this subsection, by collateral having a market value at least equal to the amount of the loan or extension of credit shall not exceed 15 per centum of the unimpaired capital and unimpaired surplus of the association.

   (2) The total loans and extensions of credit by a national banking association to a person outstanding at one time and fully secured by readily marketable collateral having a market value, as determined by reliable and continuously available price quotations, at least equal to the amount of the funds outstanding shall not exceed 10 per centum of the unimpaired capital and unimpaired surplus of the association. This limitation shall be separate from and in addition to the limitations contained in paragraph (1) of this subsection.

Definitions (b) For the purposes of this section (1) The term loans and extensions of credit shall include all direct or indirect advances of funds to a person made on the basis of any obligation of that person to repay the funds or repayable from specific property pledged by or on behalf of the person, and to the extent specified by the Comptroller of the Currency, such term shall also include any liability of a national banking association to advance funds to or on behalf of a person pursuant to a contractual commitment; and (2) The term person shall include an individual, sole proprietorship, partnership, joint venture, association, trust, estate, business trust, corporation, sovereign government, or agency, instrumentality, or political subdivision thereof, or any similar entity or organization.

Exceptions (c) The limitations contained in subsection (a) of this section shall be subject to the following exceptions: (1) Loans or extensions of credit arising from the discount of commercial or business paper evidencing an obligation to the person negotiating it with recourse shall not be subject to any limitation based on capital and surplus.

   (2) The purchase of bankers' acceptances of the kind described in section 372 of this title and issued by other banks shall not be subject to any limitation based on capital and surplus.

   (3) Loans and extensions of credit secured by bills of lading, warehouse receipts, or similar documents transferring or securing title to readily marketable staples shall be subject to a limitation of 35 per centum of capital and surplus in addition to the general limitations if the market value of the staples securing each additional loan or extension of credit at all times equals or exceeds 115 per centum of the outstanding amount of such loan or extension of credit. The staples shall be fully covered by insurance whenever it is customary to insure such staples.

   (4) Loans or extensions of credit secured by bonds, notes, certificates of indebtedness, or Treasury bills of the United States or by other such obligations fully guaranteed as to principal and interest by the United States shall not be subject to any limitation based on capital and surplus.

   (5) Loans or extensions of credit to or secured by unconditional takeout commitments or guarantees of any department, agency, bureau, board, commission, or establishment of the United States or any corporation wholly owned directly or indirectly by the United States shall not be subject to any limitation based on capital and surplus.

   (6) Loans or extensions of credit secured by a segregated deposit account in the lending bank shall not be subject to any limitation based on capital and surplus.

   (7) Loans or extensions of credit to any financial institution or to any receiver, conservator, superintendent of banks, or other agent in charge of the business and property of such financial institution, when such loans or extensions of credit are approved by the Comptroller of the Currency, shall not be subject to any limitation based on capital and surplus.

   (8)(A) Loans and extensions of credit arising from the discount of negotiable or nonnegotiable installment consumer paper which carries a full recourse endorsement or unconditional guarantee by the person transferring the paper shall be subject under this section to a maximum limitation equal to 25 per centum of such capital and surplus, notwithstanding the collateral requirements set forth in subsection (a)(2) of this section.

   (B) If the bank's files or the knowledge of its officers of the financial condition of each maker of such consumer paper is reasonably adequate, and an officer of the bank designated for that purpose by the board of directors of the bank certifies in writing that the bank is relying primarily upon the responsibility of each maker for payment of such loans or extensions of credit and not upon any full or partial recourse endorsement or guarantee by the transferor, the limitations of this section as to the loans or extensions of credit of each such maker shall be the sole applicable loan limitations.

   (9)(A) Loans and extensions of credit secured by shipping documents or instruments transferring or securing title covering livestock or giving a lien on livestock when the market value of the livestock securing the obligation is not at any time less than 115 per centum of the face amount of the note covered, shall be subject under this section notwithstanding the collateral requirements set forth in subsection (a)(2) of this section, to a maximum limitation equal to 25 per centum of such capital and surplus.

   (B) Loans and extensions of credit which arise from the discount by dealers in dairy cattle of paper given in payment for dairy cattle, which paper carries a full recourse endorsement or unconditional guarantee of the seller, and which are secured by the cattle being sold, shall be subject under this section, notwithstanding the collateral requirements set forth in paragraph (a)(2) of this section, to a limitation of 25 per centum of such capital and surplus.

   (10) Loans or extensions of credit to the Student Loan Marketing Association shall not be subject to any limitation based on capital and surplus.

Authority of Comptroller of the Currency (d)(1) The Comptroller of the Currency may prescribe rules and regulations to administer and carry out the purposes of this section, including rules or regulations to define or further define terms used in this section and to establish limits or requirements other than those specified in this section for particular classes or categories of loans or extensions of credit.

   (2) The Comptroller of the Currency also shall have authority to determine when a loan putatively made to a person shall for purposes of this section be attributed to another person.

[48 FR 42806, Sept. 20, 1983]
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May 25th, 2010 ·

One of the key issues that ethical and reasonable foreclosure defense attorneys are fighting is the fact that the slapdash, haphazard foreclosure mill law practice has turned courtrooms into meatgrinders….and that these courtrooms are turning out rotten, maggot infested meat.

The rotten, maggot infested meat of the foreclosure crisis are foreclosure judgments that are either VOID or VOIDABLE based on fatal deficiencies within the court file.  Specific examples such deficiencies are:

1) Affidavits of Amounts Due and Owing that reference “Books and Records” with no evidence of such books or records attached;

2) Original Promissory Notes With Questionable Endorsements (endorsed from bankrupt or dissolved entity);

3) Original Promissory Notes Specially Endorsed to Someone Other Than The Foreclosing Plaintiff;

4) Improper Assignment of Mortgage (Either Facially Fraudulent or No Authority to Assign);

5) Improper Service of Process on Any Party (Virtually All Service By Publication is Improper);

6) Improper or No Notice of Hearings (The Mills Sometimes Don't Bother Noticing Attorneys, Much Less Pro Se)

7) Fraudulently Inducing Defendants Not To Participate in Court Proceedings (Don't Worry, We'll Give you a Modification) ;

Any Kind of Fraud on the Court;

9) Improper Court Procedure or Violation of Rules (Dropping Lost Note, Rule 1.070).

All of these things, and so many, many more are an everyday part of foreclosure judgments across this country.  The result of these, and the other wonders of the foreclosure mill work and the judgments based on their garbage are potentially hundreds of thousands of VOID or VOIDABLE foreclosure judgments.  The good news is that with foreclosures, we can go back and attack these judgments in the years to come. So if you lose summary judgment or your home is sold in foreclosure, don't totally give up hope….but make sure you do assemble a good record for use in later collateral attacks on that judgment.  That means CERTIFIED COPIES of all important documents (ASSIGNMENT OF MORTGAGE, NOTE {front and back}, AFFIDAVITS).  When these documents are all safely copied and certified and when courts finally slow down to look at this garbage that's been dumped in their laps, it will be up to us real estate and title attorneys to file the quiet title suits which will bankrupt the title agencies. So let's have a little look at the legal definitions and case law on Void Judgments and consider how this applies to foreclosure judgments:

Black's Law Dictionary, Sixth Edition, page 1574

Void judgment. One which has has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally. Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, 1092. One which from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of confirmation, ratification, or enforcement in any manner or to any degree. Judgment is a “void judgment” if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process. Klugh v. U.S., D.C.S.C., 610 F.Supp. 892, 901. See also Voidable judgment.

Other Authorities on Void Judgments:

Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties. See:

Wahl v. Round Valley Bank, 38 Ariz. 411, 300 P.955 (1931) Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1914) Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940)

A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court. See Long v. Shorebank Development Corp., 182 F.3d 548 (C.A. 7 Ill. 1999)

A void judgment is one which, from its inception, was a complete nullity and without legal effect. See Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645, 14 A.L.R. Fed. 298 (C.A. 1 Mass. 1972)

A void judgment is one which from the beginning was complete nullity and without any legal effect. See Hobbs v. U.S. Office of Personnel Management, 485 F.Supp. 456 (M.D. Fla. 1980).

Void judgment is one that, from its inception, is complete nullity and without legal effect. Holstein v. City of Chicago, 803 F.Supp. 205, reconsideration denied 149 F.R.D. 147, affirmed 29 F.3d 1145 (N.D. Ill. 1992).

Void judgment is one where court lacked personal or subject matter jurisdiction or entry of order violated due process, U.S.C.A. Const. Amend. 5-Triad Energy Corp. v. McNell, 110 F.R.D. 382 (S.D.N.Y. 1986).

Judgment is a void judgment if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process, Fed Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A.; U.S.C.A. Const Amend. 5. Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985).

A void judgment is one which, from its inception, was a complete nullity and without legal effect, Rubin v. Johns, 109 F.R.D. 174 (D. Virgin Islands 1985).

A void judgment is one which, from its inception, is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatever, and incapable of enforcement in any manner or to any degree. Loyd v. Director, Dept. of Public Safety, 480 So.2d 577 (Ala.Civ.App. 1985). A judgment shown by evidence to be invalid for want of jurisdiction is a void judgment or at all events has all attributes of a void judgment, City of Los Angeles v. Morgan, 234 P.2d 319 (Cal.App. 2 Dist. 1951).

Void judgment which is subject to collateral attack, is simulated judgment devoid of any potency because of jurisdictional defects, Ward. v. Terriere, 386 P.2d 352 (Colo. 1963). A void judgment is a simulated judgment devoid of any potency because of jurisdictional defects only, in the court rendering it and defect of jurisdiction may relate to a party or parties, the subject matter, the cause of action, the question to be determined, or relief to be granted, Davidson Chevrolet, Inc. v. City and County of Denver, 330 P.2d 1116, certiorari denied 79 S.Ct. 609, 359 U.S. 926, 3 L.Ed. 2d 629 (Colo. 1958).

Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to make or enter particular order involved and such a judgment may be attacked at any time, either directly or collaterally, People v. Wade, 506 N.W.2d 954 (Ill. 1987).

Void judgment may be defined as one in which rendering court lacked subject matter jurisdiction, lacked personal jurisdiction, or acted in manner inconsistent with due process of law Eckel v. MacNeal, 628 N.E.2d 741 (Ill. App.Dist. 1993).

Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to make or enter particular order involved; such judgment may be attacked at any time, either directly or collaterally People v. Sales, 551 N.E.2d 1359 (Ill.App. 2 Dist. 1990).

Res judicata consequences will not be applied to a void judgment which is one which, from its inception, is a complete nullity and without legal effect, Allcock v. Allcock, 437 N.E.2d 392 (Ill.App.3 Dist. 1982).

Void judgment is one which, from its inception is complete nullity and without legal effect In re Marriage of Parks, 630 N.E.2d 509 (Ill.App. 5 Dist. 1994).

Void judgment is one entered by court that lacks the inherent power to make or enter the particular order involved, and it may be attacked at any time, either directly or collaterally; such a judgment would be a nullity. People v. Rolland, 581 N.E.2d 907 (Ill.APp. 4 Dist. 1991).

Void judgment under federal law is one in which rendering court lacked subject matter jurisdiction over dispute or jurisdiction over parties or acted in manner inconsistent with due process of law or otherwise acted unconstitutionally in entering judgment, U.S.C.A. Const. Amend. 5, Hays v. Louisiana Dock Co., 452 N.E.2d 1383 (Ill App. 5 Dist. 1983).

A void judgment has no effect whatsoever and is incapable of confirmation or ratification, Lucas v. Estate of Stavos, 609 N.E.2d 1114, rehearing denied, and transfer denied (Ind. App. 1 Dist. 1993).

Void judgment is one that from its inception is a complete nullity and without legal effect Stidham v. Whelchel, 698 N.E.2d 1152 (Ind. 1998).

Relief from void judgment is available when trial court lacked either personal or subject matter jurisdiction, Dusenberry v. Dusenberry, 625 N.E.2d 458 (Ind.App. 1 Dist. 1993).

Void judgment is one rendered by court which lacked personal or subject matter jurisdiction or acted in manner inconsistent with due process, U.S.C.A. Const. Amends. 5, 14, Matter of Marriage of Hampshire, 896 P.2d 58 (Kan.1997)

Judgment is void if court that rendered it lacked personal or subject matter jurisdiction; void judgment is nullity and may be vacated at any time, Matter of Marriage of Welliver, 869 P.2d 653 (Kan. 1994).

A void judgment is one rendered by a a court which lacked personal or subject matter jurisdiction or acted in a manner inconsistent with due process, In re. Estate of Wells, 983 P.2d 279, (Kan.App. 1999).

Void judgment is one rendered in absence of jurisdiction over subject matter or parties, 310 N.W.2d 502, (Minn. 1981).

A void judgment is one rendered in absence of jurisdiction over subject matter or parties, Lange v. Johnson, 204 N.W.2d 205 (Minn. 1973).

A void judgment is one which has merely semblance, without some essential element, as when court purporting to render it has no jurisdiction, Mills v. Richardson, 81S.E.2d 409 (N.C. 1954).

A void judgment is one which has a mere semblance, but is lacking in some of the essential elements which would authorize the court to proceed to judgment, Henderson v. Henderson, 59 S.E.2d 227, (N.C. 1950).

Void judgment is one entered by court without jurisdiction to enter such judgment, State v. Blankenship, 675 N.E.2d 1303, (Ohio App. 9 Dist. 1996).

Void judgment, such as may be vacated at any time is one whose invalidity appears on face of judgment roll, Graff v. Kelly, 814 P.2d 489 (Okl. 1991).

A void judgment is one that is void on face of judgment roll, Capital Federal Savings Bank v. Bewley, 795 P.2d 1051 (Okl. 1990).

Where condition of bail bond was that defendant would appear at present term of court, judgment forfeiting bond for defendant's bail to appear at subsequent term was a void judgment within rule that laches does not run against a void judgment, Com. V. Miller, 150 A.2d 585 (Pa.Super. 1959).

A void judgment is one in which the judgment is facially invalid because the court lacked jurisdiction or authority to render the judgment, State v. Richie, 20 S.W.3d 624 (Tenn. 2000).

Void judgment is one which shows upon face of record want of jurisdiction in court assuming to render judgment, and want of jurisdiction may be either of persons, subject matter generally, particular question to be decided or relief assumed to be given, State ex re. Dawson v. Bomar, 354 S.W.2d 763, certiorari denied, (Tenn. 1962).

A void judgment is one which shows upon face of record a want of jurisdiction in court assuming to render judgment, Underwood v. Brown, 244 S.W.2d 168 (Tenn. 1951).

Void judgment is one which has no legal force or effect whatever, it is an absolute nullity, its invalidity may be asserted by any person whose rights are affected at any time and at any place and it need not be attacked directly but may be attacked collaterally whenever and wherever it is interposed, City of Lufkin v. McVicker, 510 S.X.2d 141 (Twx.Civ.App.-Beaumone 1973).

A void judgment, insofar as it purports to be pronouncement of court, is an absolute nullity, Thompson v. Thompson, 238 S.W.2d 218 (Tex.Civ.App.-Waco 1951).

A void judgment is one that has bee procured by extrinsic or collateral fraud, or entered by court that did not have jurisdiction over subject matter or the parties, Rook v. Rook, 353 S.E. 2d 756 (Va. 1987).

A void judgment is a judgment, decree, or order entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved, State ex re. Turner v. Briggs, 971 P.2d 581 (Wash.App.Div. 1999).

A void judgment or order is one that is entered by a court lacking jurisdiction over the parties or the subject matter, or lacking the inherent power to enter the particular order or judgment, or where the order was procured by fraud, In re Adoption of E.L., 733 N.E.2d 846, (Ill. APp. 1 Dist. 2000).

Void judgments are those rendered by court which lacked jurisdiction, either of subject matter or parties, Cockerham. v. Zikratch, 619 P.2d 739 (Ariz. 1980).

Void judgments generally fall into two classifications, that is, judgments where there is want of jurisdiction of person or subject matter, and judgments procured through fraud, and such judgments may be attacked directly or collaterially, Irving v. Rodriquez, 169 N.E.2d 145, (Ill. app. 2 Dis. 1960).

Invalidity needs to appear on face of judgment alone that judgment or order may be said to be intrinsically void or void on its face, if lack of jurisdiction appears from the record, Cockett Oil Co. v. Effie, 374 S.W.2d 154 (Mo.App. 1964).

Decision is void on the face of the judgment roll when form four corners of that roll, it may be determined that at least on of three elements of jurisdiction was absent: (1) jurisdiction over parties, (2) jurisdiction over subject matter, or (3) jurisdictional power to pronounce particular judgment hat was rendered, B & C Investments, INc. v. F & M Nat. Bank & Trust, 903 P.2d 339 (Okla.App.Div 3, 1995).

Void order may be attacked, either directly or collaterally, at any time, In Re Estate of Steinfield, 630 N.E.2d 801, certiorari denied, See also Steinfeld v. Hoddick, 513 U.S. 809 (Ill. 1994).

Void order which is one entered by court which lacks jurisdiction over parties or subject matter, or lacks inherent power to enter judgment, or order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that party is properly before court, People ex. re. Brzica v. Village of Lake Barrington, 644 N.E.2d 66 (Ill.App.2 Dist. 1994).

While voidable orders are readily appealable and must be attacked directly, void order may be circumvented by collateral attack or remedied by mandamus, Sachez v. Hester, 911 S.W.2d 173, (Tex.App. -Corpus Christi 1995).

Arizona courts give great weight to federal courts' interpretations of Federal Rule of Civil Procedure governing motion for releif from judgment in interpreting identical text of Arizona Rule of Civil Procedure, Estate of Page v. Litzenburg, 852 P.2d 128, review denied (Ariz.App.Div. 1, 1998).

When rule providing for relief from void judgments is applicable, relief is not discretionary matter, but is mandatory, Orner. V. Shalala, 30 F.3d 1307 (Colo. 1994).

Judgments entered where court lacked either subject matter or personal jurisdiction, or that were otherwise entered in violation of due process of law, must be set aside, Jaffe and Asher v. Van Brunt, S.D.N.Y.1994, 158 F.R.D. 278.

A “void” judgment, as we all know, grounds no rights, forms no defense to actions taken thereunder, and is vulnerable to any manner of collateral attack (thus here, by). No statute of limitations or repose runs on its holdings, the matters thought to be settled thereby are not res judicata, and years later, when the memories may have grown dim and rights long been regarded as vested, any disgruntled litigant may reopen old wound and once more probe its depths. And it is then as though trial and adjudication had never been. Fritts v. Krugh, Supreme Court of Michigan, 92 N.W.2d 604, 354 Mich. 97 (10/13/58).

On certiorari this Court may not review questions of fact. Brown v. Blanchard, 39 Mich. 790. It is not at liberty to determine disputed facts (Hyde v. Nelson, 11 Mich 353), nor to review the weight of the evidence. Linn v. Roberts, 5 Mich 443; Lunch v. People, 16 Mich 472. Certiorari is an appropriate remedy to get rid of a void judgment, one which there is no evidence to sustain. Lake Shore & Michigan Southern Railway Co. v. Hunt, 39 Mich 469.

Committee on Oversight and Government Reform

Deterioration of the Clean Water Act Enforcement Program

Oversight and Government Reform Committee Chairman Henry A. Waxman and Transportation and Infrastructure Committee Chairman James L. Oberstar wrote to President-elect Obama regarding their investigation into the drastic deterioration of the Clean Water Act enforcement program.

“One of the legacies of the Bush Administration is its failure to protect the safety and health of the nation's waters,” said Chairman Waxman. “Our investigation reveals that the clean water program has been decimated as hundreds of enforcement cases have been dropped, downgraded, delayed, or never brought in the first place. We need to work with the new Administration to restore the effectiveness and integrity to this vital program.”

New internal documents obtained by the Committees show that hundreds of Clean Water Act violations have not been pursued with enforcement actions. Dozens of existing enforcement cases have become informal responses, have had civil penalties reduced, and have experienced significant delays. Many violations are not even being detected because of the substantial reduction in investigations. Violations involving oil spills make up nearly half of the Clean Water Act violations that have been detected but are not being addressed.

EPA refused to produce hundreds of documents to the Committees and redacted many of the documents it did produce. EPA concealed the identity of corporations and individuals accused of polluting waters and the specific waters that may have been affected.

In addition, the Committees' investigation revealed that the Assistant Secretary for the Army for Civil Works placed the interests of corporate lobbyists over the scientific determinations of career officials in making Clean Water Act decisions about the Santa Cruz River in Arizona.

“This Administration has only exacerbated a series of bad Supreme Court decisions by not enforcing the Clean Water Act and by placing development interests above those of the public,” said Chairman Oberstar. “By withholding relevant information and misleading Congress our nation's waters have gone unprotected for too long. Only through congressional action can we restore necessary Clean Water Act protections to our nation's waters.”

BP's Ties to Agency Are Long and Complex

WASHINGTON — Three years ago, the national laboratory then headed by Steven Chu received the bulk of a $500 million grant from the British oil giant BP to develop alternative energy sources through a new Energy Biosciences Institute .

Dr. Chu received the grant from BP's chief scientist at the time, Steven E. Koonin, a fellow theoretical physicist whom Dr. Chu jocularly described as “my twin brother.” Dr. Koonin had selected the Lawrence Berkeley National Laboratory at the University of California, Berkeley , over other universities in the United States and Britain in part because of Dr. Chu's pioneering work in alternative fuels.

Today, Dr. Chu is President Obama 's energy secretary, and he spent Tuesday in Houston working with BP officials to try to find a way to stop the unabated flow of oil from a ruptured well a mile beneath the Gulf of Mexico.

AIG's $4 billion of 8.175 percent bonds due 2058 and rated two steps below investment grade by Moody's Investors Service at Ba2 fell 4.5 cents to 67 cents on the dollar, and have declined this month from 87.125 cents, according to Trace, the bond-price reporting system of the Financial Industry Regulatory Authority.

By David Goldman , staff writer May 26, 2010: 11:48 AM ET

NEW YORK ( -- An overseer of the $700 billion financial sector bailout said Wednesday that insurer AIG defied regulation, leading to a taxpayer-funded rescue that "broke all the rules."

"The company was a corporate Frankenstein, a conglomeration of banking and insurance and investment interests that defied regulatory oversight," said Congressional Oversight Panel Chairwoman Elizabeth Warren at a hearing on American International Group's bailout held by the watchdog.

* AIG credit derivatives exposure down to $136 bln

* Full taxpayer recovery remains unclear - U.S. Treasury

* Treasury to seek sale after AIG earns "A" credit rating

* Fed officials defend actions to unwind AIG CDS deals

By David Lawder

WASHINGTON, May 26 (Reuters) - Bailed-out insurance giant American International Group ( AIG.N ) has slashed its exposure to credit derivatives by nearly two-thirds under government ownership, but a full recovery for taxpayers remains uncertain, a senior U.S. Treasury official said on Wednesday.

Jim Millstein, the Treasury's chief restructuring officer, told the Congressional Oversight Panel that the Treasury would seek to sell its stake "as soon as practicable" after AIG boosts its credit rating to single-A status.

Standard and Poor's rates AIG one notch lower at A-minus, with a negative outlook.

Millstein, in prepared testimony, said AIG's credit default swaps exposure was now down to $136 billion from about $400 billion -- with about $109 billion of the remaining exposure tied to transactions with European banks.

The Treasury Department holds about 80 percent of AIG's common equity as a result of government bailout actions in late 2008 and early 2009 as the company became unable to pay out insurance policies on investments tied to defaulting mortgages.


Call for Justice at Superfund Sites

EPA staff forced to ignore science

EPA Signs Agreement for State Voluntary Cleanup Program

EPA Said to Have Suppressed, Misclassified Records

Internal Audit Suggests EPA Complicit in Environmental Racism

Why the Environmental Protection Agency must be abolished

A Constitutional Convention Can Rein in Washington


The U.S. Congress is in a state of serious disrepair and cannot fix itself. It has reached this point over the course of many years—in fact over many decades. Regardless of the party in power, Congress has demonstrated a growing inability to effectively address the major issues of our time, including soaring federal debt and the extension of federal authority to states and localities.

The only effective remedy is constitutional reform to rein in congressional excesses and abuses. But Congress can't be expected to propose amendments to fix itself, as it has an inherent conflict of interest.

The remedy is in Article V of the Constitution, which permits a convention to be called for the purpose of proposing constitutional amendments. Any proposed amendment then would have to be ratified by both houses of 38 state legislatures (three-fourths of the states). This entails 76 separate votes in the affirmative by two houses of the 38 state legislatures. (Nebraska, with its unicameral legislature, would be an exception.)

Interest in calling a first-ever Article V convention is growing at the state level. A petition for such a convention passed the Florida Senate last month, to propose amendments requiring a balanced budget and to restrain the growth of the national government. If approved by the House, Florida would be the 20th state with an active call to do so. In the Virginia House of Delegates, I introduced a resolution (H.J. 183) calling for a constitutional convention to restrain the national government as well. Requests by two-thirds or 34 states are required for a convention to be called.

Under the U.S. Constitution, Congress has the power to make criminal only four types of conduct: treason, counterfeiting, piracies and felonies on the high seas, and offenses against the laws of nations.

The U.S. Declaration of Independence states that "when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty , to throw off such Government"

"When the people fear their government, there is tyranny; when the government fears the people, there is liberty". - Thomas Jefferson

“I believe that banking institutions are more dangerous to our liberties than standing armies.  Already they have raised up a moneyed aristocracy that has set the government at defiance. The issuing power should be taken from the banks and restored to the people, to whom it properly belongs.”   – Thomas Jefferson 


Congress has the right to make any law that is ‘necessary and proper' for the execution of its enumerated powers (Art. I, Sec. 8, Cl. 18).     

CERCLA is a coercive intolerable act, "impolitic, unjust, and cruel,"

We are entitled to life, liberty, and property, and we have never ceded to any sovereign power whatever, a right to dispose of either without our consent.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

You have obstructed the Administration of Justice, by refusing your Assent to the constitutional limitations of Federal Judiciary Powers.

You have erected a multitude of New Offices, and sent hither swarms of Officers to harrass our People, and eat out our substance.

You have kept among us, in times of peace, a Standing Army without our Consent.

You have combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving your Assent to their Acts of pretended Legislation:

You have abdicated Government here, by declaring us out of your Protection and waging War against us.

For depriving us of the benefits of Trial by Jury:

You have plundered our Trusts, ravaged our Lands, burnt our Township, and destroyed the lives of our people.

In every stage of these Oppressions we have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Judge, whose character is thus marked by every act which may define a Tyrant, is unfit to be the Judge of a free people.

The sole excuse for 30 years of piracy, extortion, despotism, tyranny, and oppression against Mr. T.W. Arman is the cost of dilution water from Shasta dam during droughts for the protection of the juvenile fish hatched and propogated in the artificial (i.e. manmade) Keswick lake.

Rather than allow the naturally occuring minerals to dissolve in stormwater runoff as it has for hundreds of thousands of years, the EPA chose to make an acutely toxic sludge and dispose it in a shoddily constructed disposal pit on top of the old brick flat open pit mine at Iron Mountain. The disposal pit has failed and the drainage is no longer recovered for treatment. It is unknown exactly where it drains to now.

Iron Mountain has accumulated over a billion pounds of this sludge. Despite constant efforts to initiate a recycling and reclamation plan, the EPA has defied every effort to implement an appropriate common sense approach to a remedy for this problem.

Superfund at 30 - toxic waste cleanups drag on

“Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of juris.” Merritt v. Hunter, C.A. Kansas 170 F2d 739.

“Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action.” Melo v. US, 505 F2d 1026.

Excercising your constitutional right cannot be converted into a crime or have sanctions levered against it: The state cannot diminish rights of the people. [Hertado v. California, 100 US 516.]

Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. [Miranda v. Arizona, 384 US 436, 491.]

There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights. [Sherer v. Cullen, 481 F 946.]

"judges of courts of limited jurisdiction are entitled to absolute immunity for their judicial acts unless they act in the clear absence of all jurisdiction." King v. Love, 766 F.2d 962, 966 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985).

Thus, for example, a criminal court judge would be immune from liability for convicting a defendant of a nonexistent crime, an act taken in excess of his jurisdiction, whereas a probate court judge would not be immune from liability if he tried a criminal case because he clearly lacked all subject matter jurisdiction. Id. (citing Bradley, 80 U.S. (13 Wall.) at 352).

Excerpt from page 974 F.2d 1329, 1992 WL 214444 (1st Cir.(Mass.)) Federal courts "have proceeded on the assumption that common-law principles of legislative and judicial immunity were incorporated into our judicial system and that they should not be abrogated absent clear legislative intent to do so." Pulliam v. Allen, 466 U.S. 522, 529 (1984). Under the common law, judges are generally immune from civil liability for judicial acts, subject to the conditions described above, but they do not enjoy immunity from criminal liability. See O'Shea v. Littleton, 414 U.S. 488, 503 (1974).

In the following cases, courts have found that the judges acted outside of their judicial capacity and were not entitled to immunity: Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)(state court judge did not have absolute immunity from damages suit under S 1983 for his decision to demote and dismiss a probation officer); Morrison v. Lipscomb, 877 F.2d 463 (6th Cir.1989)(state court judge was not entitled to judicial immunity in connection with order declaring moratorium on issuance of writs of restitution from December 15 through January 2, as judge was acting in administrative and not judicial capacity); King v. Love, 766 F.2d 962, 968 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985)(although setting bond on an arrest warrant is a judicial act, the act of deliberately misleading the police officer who was to execute the warrant about the identity of the person sought was nonjudicial); Sevier v. Turner, 742 F.2d 262 (6th Cir.1984)(juvenile court judge's initiation of criminal prosecution and civil contempt proceeding against father for child support in arrears constituted nonjudicial acts); New Alaska Development Corporation v. Guetschow, 869 F.2d 1298 (9th Cir.1988)(receiver appointed by state court to manage business assets of an estate was entitled to absolute derivative judicial immunity, but receiver was not absolutely immune from allegations that he stole assets or slandered parties, as such alleged acts were not judicial); Harper v. Merckle, 638 F.2d 848 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981)(holding a contempt proceeding and ordering plaintiff incarcerated were not judicial acts where controversy that led to incarceration did not center around any matter pending before the judge, but around domestic problems of plaintiff former wife who worked at the courthouse); Harris v. Harvey, 605 F.2d 330 (7th Cir.1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980)(allegedly repeated communications to the press and city officials which were critical of police lieutenant, and the improper instigation of criminal proceedings against the lieutenant by judge as part of a racial campaign to discredit lieutenant were not judicial acts).

33 US Military Generals, Admirals: "Climate Change is Threatening America's Security" TREEHUGGERS JOIN MILITARY ..."that the tender branch thereof will not cease".

"peine forte et dure" - the Contrarients.


Letters Patent and Leave for Reprisal Privateering Arrest Warrant: TREASON

AIG's Six Year Saga Of Alleged Fraud 

The recent outcry over $165 million in post-bailout bonus payments has put AIG on the hot seat. But, in fact, the bonus disbursement is perhaps the least serious in a string of actions by the insurance giant that span six years and involve several cases of alleged fraud.

"AIG has a culture of complicity. "You don't get into these kinds of problems by having a good corporate culture," said Peter Morici, a professor at the University of Maryland School of Business and the former chief economist at the US International Trade Commission. "Clearly this company has had endemic problems and it'd be best if we broke it up and sold it off so others can run its parts."

February 2006:

-AIG agreed to pay more than $1.6 billion -- the biggest regulatory settlement by a single company in U.S. history, according to Reuters -- to settle claims related to the 2000 case involving General Re and AIG. The settlement was for improper accounting, bid rigging and practices involving workers' compensation funds. Then-New York Attorney General Eliot Spitzer said at the time that AIG "finds itself in this position solely because some senior managers thought it was acceptable to deceive the investing public and regulators."

hostis humani generis; pillage, a species of treason.






Congress trusts that the executive agencies will be good stewards of every taxpayer dollar. Clearly Administrator Jackson is not," Blackburn said.


US Senate climate bill would end EPA/state programs

Keith Takata - EPA
Thomas A. Bloomfield - EPA Region 9
As the assistant regional counsel for Region 9 of the U.S. Environmental Protection Agency (EPA), Thomas A. Bloomfield brokered a $1 billion settlement with the former owner of Iron Mountain Mine near Redding. The settlement is one of the largest in the history of both federal and California environmental protection programs and was made possible by an innovative insurance-based financing program.

In 1983 the EPA placed Iron Mountain on its Superfund list of the nation's most dangerous toxic sites. Litigation was brought by state and federal officials against the owner of the mine, formerly Rhone-Poulenc, now Aventis CropSciences USA, a chemical, pharmaceutical, and biotechnology company, for past and future cleanup costs.

The final settlement negotiated by Bloomfield sets up a finance program to fund a treatment plant that will process the contaminated runoff. The key piece of the deal is an insurance policy that will be purchased by the former owner of the mine and will pay out an estimated $200 million over 30 years for cleanup costs and will cover an additional $100 million if necessary, along with additional payouts to the EPA and state and federal trustee agencies. In 2030 the policy will pay a lump sum of $514 million to the state and federal government to continue the cleanup.

Michael Hingerty, deputy branch chief for Region 9, worked on the case from 1987
until turning it over to Bloomfield in 1996. Tim Gallagher of Gallagher & Gallagher in Los Angeles also contributed significantly to the settlement.


EPA Cleanup Tactic to Face GE Challenge in D.C. Circuit

GE loves government regulation. I am not being facetious. All giant businesses love regulation because they have the money to buy influence.
Regulation is their best bludgeon against smaller competitors.

Regulation can provide the highest return on investment that a corporation achieves, dwarfing R&D, efficiency, advertising, training or any of the myriad of tools in the manager's toolbox.
Returns from lobbying on the order of 1000:1 are not uncommon.

But should it not be in their financial interest to back a regulator they will fight with every weapon they can buy.
Witness the monumental battle to get GE to clean up their PCB filth in the Hudson river, 30 years of delays and dissimulation.

I am bemused watching the eco-hypocrisy of GE, when their attorneys or P.R. flaks speak I always hear Richard Ward's

gravelly voice say "And son, don't never, ever trust whitey".

From Greenwire via the New York Times :
Attorneys for General Electric Co. and U.S. EPA will debate the constitutionality in federal appeals court next week of a legal weapon often used by the agency to force the cleanup of the nation's most contaminated sites.

The case, General Electric Co. v. Jackson , focuses on "unilateral administrative orders," a privilege given to EPA by the Comprehensive Environmental Response, Compensation and Liability Act, more commonly known as Superfund.

Experts say EPA's ability to issue unilateral orders is the Superfund statute's heavy artillery, a deterrent allowing officials to reach settlements with companies that might otherwise resist moving forward with cleanup. If a company balks at the order, the agency can levy penalties or treble damages -- in which case the agency remediates the toxic site itself and bills the company for three times the cost.

Companies such as GE feel that the agency has used the authority as a negotiating tool, threatening to issue orders even when their sites do not pose an imminent threat to public health or the environment, said Barry Hartman, a former Justice Department attorney now working as an environmental litigator at K&L Gates in Washington, D.C.

"Their original purpose was that if there's a dangerous situation, you want to be able to clean it up and fight about the money later," Hartman said. "It's devolved into EPA using them in a way where you could argue if this is what Congress really intended."

Justice Department attorneys are representing EPA Administrator Lisa Jackson, the defendant in the case.

More than 1,700 unilateral orders have been issued since the Superfund statute became law in 1980, according to court documents, and GE -- which is responsible for about 75 Superfund sites -- has been a frequent target. The company filed suit to challenge the orders in 2000, claiming that they violate the constitutional right to due process by forcing companies to incur expenses without being able to make their case in court.... MORE

I'm thinking it might be time to revisit the whole "Corporate Personhood" question.

Looting ( Hindi lu, akin to Sanskrit luhati, [he] steals; also Latin latro , latronis [Sp. ladrón], "thief"), to rob , sacking , plundering , despoiling , despoliation or pillaging is the indiscriminate taking of goods by force as part of a military or political victory, or during a catastrophe or riot, such as during war , natural disaster, or rioting . The term is also used in a broader (some would argue metaphorical sense, to describe egregious instances of theft and embezzlement, such as the "plundering" of private or public assets by corrupt or greedy authorities). Looting is loosely distinguished from scavenging by the objects taken, scavenging implies taking of essential items such as food , water, shelter , or other material needed for survival while looting implies items of luxury or not necessary for survival such as war trophies , art work, or other valuables. The proceeds of all these activities can be described as loot , plunder , or pillage. - Wikipedia

Formerly this offence was only cognizable by the Admiralty courts, whose proceedings were based upon the civil law, but by the statute 28 Hen. VIII. c. 15 (1536) a new jurisdiction proceeding according to the common law was set up which modified and regulated by subsequent enachments, such as 39 Geo. III. c. 37 (1798-99), 4 & 5 Will. IV. c. 36 (1834), and 7 & 8 to Vict. c. 2 (1844), continues to be the tribunal by which offenders of this description are tried.

At a very early period of English history the law provided for the restitution of property taken by pirates, if found within the realm, whether belonging to strangers or Englishmen; but any foreigner suing for the recovery of his goods was required to prove that at the time of the capture his own sovereign and the sovereign of the captor were in mutual amity, for it was held that piracy could not be committed by the subjects of states at war with each other. In England the crown is, generally speaking, entitled to all bona piratorum; but if any person can establish a title to the goods the claim of the crown thereto ceases by 13 & 14 Vict. c 26 (1850), ships and effects captured from pirates are to be restored on the payment of one-eight of their value (by way of salvage), which is to be distributed among the recaptors.

Cowel (Law Dict., 1727) states that in former times the word pirate was used in a better sense than that of a sea-robber, being attributed to persons to whose care the mole or pier of a haven was entrusted, and, quoting the learned Spelman, he adds, sometimes to a sea soldier: "Robertus vero Comes (Normaniae) attemptavit venire in Anglian cum magno exercitu, sed a pirates Regis qui curam maris a Rege (Willielmo) susceperant repulses est" (Glossarium, 1687, p. 460). ( J. C. W.)

Piracy, being a crime not against any particular state but against all mankind, may be punished in the competent court of any country where the offender may be found or into which he may be carried. But, whilst the law of nations gives to every one the right to pursue and exterminate pirates without any previous declaration of war (pirates holding no commission or delegated authority from any sovereign or state), it is not allowed to kill them without trial except in battle. Those who surrender or are taken prisoners must be brought before the proper tribunal and dealt with according to law.

the act of Congress of July 2, 1890, c. 647, 26 Stat. 209,

That act declares illegal "every contract, combination in form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States, or with foreign nations" —

every person making any such contract or engaging in any such conspiracy being subject to a fine not exceeding $5000, or to imprisonment not exceeding one year, or to both punishments in the discretion of the court.

§ 1. So, every person monopolizing or attempting to monopolize, or combining or conspiring with any other person or persons to monopolize, any part of the trade or commerce among the several States or with foreign nations, is liable by that act to the like penalties in the discretion of the court.

§ 2. The several Circuit Courts of the United States are invested with jurisdiction to prevent and restrain violations of its provisions.

§ 4. Any property owned under any contract or by any combination or pursuant to any conspiracy (and being the subject thereof), and being in the course of transportation from one State to another, or to a foreign country, is subject to be forfeited, seized and condemned.

§ 6. By another section it is declared: "Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any Circuit Court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee."

Under the Clayton Act, only civil suits could be brought to the court's attention and a provision "permits a suit in the federal courts for three times the actual damages caused by anything forbidden in the antitrust laws"including court costs and attorney's fees.

Procedurally, the Act empowers private parties injured by violations of the Act to sue for treble damages under Section 4 and injunctive relief under Section 16.

The Act is enforced by the Federal Trade Commission which was also created and empowered during the Wilson Presidency by the Federal Trade Commission Act, and also the Antitrust Division of the U.S. Department of Justice .

The Sarbanes–Oxley Act of 2002 ( Pub.L. 107-204 , 116  Stat.  745, enacted July 30, 2002), also known as the 'Public Company Accounting Reform and Investor Protection Act' (in the Senate ) and 'Corporate and Auditing Accountability and Responsibility Act' (in the House ) and commonly called Sarbanes–Oxley

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any federal offense, shall be fined under this title, imprisoned not more than 10 years, or both.

NACWA Calls For Water Adaptation Program In Climate Bill

May 14, 2010

The National Association of Clean Water (NACWA) calls on Senate leaders to add a "Blue Bank for Water System Mitigation and Adaptation" to comprehensive climate change legislation introduced by Senators John Kerry and Joe Lieberman.

We're disappointed to see that the ‘American Power Act' does not contain any relief for communities faced with the daunting challenges of managing their water resources in the face of climate change," said Ken Kirk, NACWA's Executive Director. "Climate change is all about water – either there will be too much where we don't want it or not enough where we do. And while it's certainly important to ensure our natural ecosystems adjust to the changing climate, telling communities they are on their own when it comes to ensuring adequate drinking water supplies and avoiding sewage in their streets and rivers is not going to cut it."

A study completed last year by NACWA and the Association of Metropolitan Water Agencies (AMWA) estimated that the climate adaptation costs faced by water and wastewater systems in the U.S. could approach $1 trillion through 2050.

"Recent floods in the Northeast that shut down local sewage treatment plants and forced people to not use area restrooms should have sent a loud message that global climate change is a public health issue of the first order. Any comprehensive climate change legislation must recognize that our local water and wastewater infrastructure will need help in adapting to the challenge. Communities are already facing severe financial burdens in meeting their water and wastewater treatment needs, let's not leave them alone to foot the climate change bill," Kirk added.

Last year, Senate Majority Leader Harry Reid introduced legislation (S. 1712) that would create a "Blue Bank for Water System Mitigation and Adaptation." The program would offer local water and wastewater utilities matching grants to fund climate adaptation efforts and studies. Rep. Lois Capps introduced similar legislation in the House (H.R. 2969).

Kirk concluded, "Many wastewater treatment utilities will need to comply with the greenhouse gas reduction targets established in the bill, at a significant cost to ratepayers. Is it asking too much to receive some relief for the enormous adaptation bill coming due?"



Senate gets tough on Ratings Agencies

May 14 (Bloomberg) -- The U.S. Senate approved a proposal to let regulators decide who rates asset-backed securities after investors, including public pensions, said Standard & Poor's and Moody's Investors Service assigned inflated assessments to mortgage bonds because the companies were paid by Wall Street firms selling the debt.

The Senate in a 64-35 vote yesterday approved an amendment to the financial overhaul legislation that would create a ratings board overseen by the Securities and Exchange Commission. The panel would assign a credit-rating company to rank an offering.

Senator Al Franken, a Minnesota Democrat who introduced the amendment, said the credit-rating industry is affected by “a staggering conflict of interest,” and issuers of securities “shop around” for the credit ratings.

Lawmakers and regulators have been debating for three years how to reduce conflicts at the companies. Under Franken's amendment, the SEC would determine the size of the board. The majority of members would be investors, at least one member would be from a credit-rating company and at least one member would be from an investment bank.

Banks, Rating Agencies Said to Be Subpoenaed by Cuomo

Goldman Sachs Group Inc., Morgan Stanley, UBS AG and five other banks were subpoenaed by New York Attorney General Andrew Cuomo over whether they misled rating companies about mortgage- backed securities, according to a person familiar with the investigation.

Cuomo is probing the relationships between the banks and the major companies, which also were subpoenaed, said the person, who declined to be identified because the investigation is continuing.

The subpoenas were sent yesterday, the person said.

State and federal regulators since at least 2008 have been looking into why Moody's Investors Service, Standard & Poor's and Fitch Ratings gave top grades to subprime-mortgage backed securities and collateralized debt obligations that later plummeted in value.

Subpoenas also went to Credit Suisse Group AG, Deutsche Bank AG, Citigroup Inc., Credit Agricole SA and Merrill Lynch & Co., which was acquired by Bank of America Corp., the person said.

UBS received a subpoena from the New York attorney general and will comply, said Doug Morris, a spokesman.

Michael Duvally, a Goldman Sachs spokesman, and Morgan Stanley's Mark Lake declined to comment.

State scolded over rain runoff , sued over sewage pollution of rivers, district judge says he will visit sites to verify compliance

In an unusually sharp rebuke, a US District Court judge said he will personally drive by worksites to make sure officials abide by a two-year-old order to control a soup of contaminants that can pour from highways into rivers and streams during storms.

At Bonneville Dam, the sea lions continue to munch endangered salmon, despite hazing -- and a lethal injection program

By Scott Learn, The Oregonian, May 13, 2010, 8:44PM

California sea lions have found plentiful salmon -- and easy to catch -- at the foot of the Bonneville Dam. A lethal injection program seems to have made little difference. BONNEVILLE DAM -- Despite a flurry of shotgun-fired firecrackers, rubber buckshot and lethal injections that have killed 10 California sea lions this year, the amount of salmon eaten by sea lions at the first dam along the Columbia River is approaching record levels.

That's the word from Robert Stansell,  a fish biologist with the U.S. Army Corps of Engineers who has monitored the sea lion's often surprising behavior since he started at Bonneville in 1982.

"These animals do learn over time," Stansell says. "Every time I think I know something, the next year they throw me a curveball."

The lethal-take program, requested by Oregon, Washington and Idaho, is the first in the nation to kill marine mammals to save threatened or endangered salmon and steelhead since Congress passed the Marine Mammal Protection Act in 1972. The Columbia is home to a multibillion-dollar salmon restoration effort.

But it's not easy to rebalance nature at the base of a mammoth hydropower dam, even with observers on the dam from dawn to dusk to track the sea lion dietary preferences, shotgun-armed hazers on boats and along the dam, and four sea lion traps on shore below the dam's north powerhouse.

Nearly three years in, the results of the lethal-take effort are murky, in large part because of those curveballs.

  Salmon eaten by California sea lions at the hydropower dam -- 140 miles upstream but a prime spot for catching salmon before they swim up the fish ladders -- are down this year. But the 73 spotted so far are up from last year and newcomers have spiked, signs opportunistic colleagues may be replacing animals trapped and killed at the dam.

 Steller sea lions , safe from lethal injection because they're also listed as threatened under the Endangered Species Act , unexpectedly doubled this year to at least 53 at the dam. This year, the Stellers dined on salmon as well as sturgeon, in large part by stealing salmon from the mouths of smaller California sea lions.

  Overall, the estimated spring chinook and steelhead munched by sea lions this year tops 4,000 -- about 2 percent of the run -- with sea lions now departing for their coastal breeding grounds. If the consumption continues at a similar clip through May, it will be close to the record set in 2009.

Stansell says it's too early for conclusions. He'll crunch the numbers this summer, before a three-year review of the program by the same pinniped task force that recommended the lethal take program back in November 2007.

Brief history of sea lions at Bonneville Dam 1937: President Franklin D. Roosevelt dedicates the first federal dam on the Columbia and Snake river system.
1972: Marine Mammal Protection Act bars killing sea lions and other marine mammals. Until the late 1960s, Oregon had a bounty on sea lions.
1990: Steller sea lions on the West Coast listed as threatened under the Endangered Species Act.
1991: First Columbia River salmon run listed under the ESA (13 runs now listed).
1994: Amended law allows killing mammals not ESA-listed if they significantly impact threatened or endangered salmon or steelhead.
2000: Federal fish managers order Corps to address sea lion consuming salmon at Bonneville.
2002: Sea lion monitoring begins.
2006: Gates with bars installed to keep sea lions out of fish ladders. Oregon, Washington and Idaho apply to the federal government to kill certain California sea lions. Fishery managers haze sea lions with shotgun-fired firecrackers and rubber bullets.
2007: Pinniped task force recommends killing California sea lions seen eating salmon at the dam. Federal officials approve lethal take of up to 85 a year. Report says California sea lions have recovered from about 1,000 in the 1930s to about 238,000, the population's "carrying capacity."
2008: Six California sea lions trapped, relocated to Sea World; one dies under anesthetic and four (along with two Steller sea lions) die from heat exhaustion after being stuck in traps, stopping the program for the year.
2009: 10 California sea lions killed and four relocated to a Chicago aquarium and a Texas zoo.
2010: 10 California sea lions killed so far. Typically, sea lions leave to breed by the end of May, shortly before the spring chinook run ends. At this point, nobody's happy.

DECEMBER 4, 2009 Sarbanes-Oxley on Trial

The hasty 2002 law gets a potent constitutional challenge. THE WALL STREET JOURNAL

Congress wants to wallop business with even more regulation in the wake of the financial panic, but perhaps the Members should pause on Monday and visit the Supreme Court. The Justices will hear arguments on whether major portions of the last great Congressional overreaction, the 2002 Sarbanes-Oxley Act, are constitutional.

Free Enterprise Fund v. Public Company Accounting Oversight Board was brought in 2006 by Brad Beckstead, whose small Nevada accounting firm endured a costly examination under Sarbox rules. At issue is whether the Public Company Accounting Oversight Board, or PCAOB, which supervises compliance with the law, violates the Constitution's separation of powers. Under the Appointments Clause, all "officers" of the United States must be appointed by the President and accountable to him—a condition PCAOB members do not meet.

The board's five members are instead hired by the commissioners of the Securities and Exchange Commission, who are appointed by the President. This arrangement passed muster in a 2-1 decision by the D.C. Circuit Court of Appeals, on the dubious grounds that the members were "inferior officers" and accountable to the President through the SEC. Never mind that they are not "directed and supervised" by the SEC, the traditional requirement for inferior officers.

The dissenter on the D.C. Circuit panel, Judge Brett Kavanaugh, called the case the most important separation of powers case in 20 years and said the appeals court had created a constitutional hash. Though the PCAOB "performs numerous regulatory and law enforcement functions at the core of the executive power," he wrote, for the first time in U.S. history we have "an independent agency whose heads are appointed by and removable only for cause by another independent agency."

The PCAOB has indeed grown as a politically unaccountable entity with vast power to regulate business. Texas Senator Phil Gramm warned at its creation that Congress was setting up a board with "massive unchecked power" to "make decisions that affect all accountants and everybody they work for, which directly or indirectly is every breathing person in the country."

Massive is the right word. The accounting board's wide-open mandate—to make whatever rules "may be necessary or appropriate in the public interest or for the protection of investors"—has cost the economy nearly $1 trillion, according to a study by AEI and the Brookings Institution. The benefit is supposed to be investor protection. But despite these costs, the law did nothing to warn about the meltdown of mortgage-backed securities, much less expose Bernie Madoff or other fraudsters.

These realities contributed to the welcome 37-32 November vote in the House Financial Services Committee to exempt small businesses from section 404b of Sarbox, which governs audit requirements. Sponsored by Democrat John Adler and Republican Scott Garrett, both of New Jersey, the provision was supported by the Obama Administration and 10 Democrats joined Republicans in support.

As the Supremes now take their turn, the case has implications the regulation-loving press corps hasn't noticed. A decision to uphold the PCAOB would open the door for Congress to create any number of equally unaccountable regulators across the economy. However, a ruling against the PCAOB could bring down the whole law because Sarbox does not have a "severability clause," which means that if one part goes down the entire law may be invalidated.

Debates over the Appointments Clause haven't typically divided the Supreme Court along liberal and conservative lines, so the outcome is hard to handicap. As Hans Bader and John Berlau of the Competitive Enterprise Institute point out, in the 1995 case Ryder v. United States, the High Court ruled unanimously that "an individual or firm disciplined by a government agency can challenge that discipline if agency officials were improperly appointed."

At stake here isn't merely a poorly written law that has done great economic harm. The issue is whether Congress, in its haste, can ignore the Constitutional order that has ensured accountable government for 230 years.

Judicial Watch Files Lawsuit Against Federal Reserve to Obtain AIG and Lehman Brothers Documents

Lawsuit Filed on Behalf of Former Federal Reserve Employee Seeks Information Regarding Government's Legal Basis for Financial Bailouts

History of the clean Water Act and What Caused Its Failure

By Peter Maier, PhD, PE

August 2008

Prior to 1972, states had their own water pollution regulations, but since they were different, industries in ‘clean' states moved to ‘dirty' states. This led to employment loses in the ‘clean' states and Congress was asked to set national water pollution standards.

When reading the historical discussions prior to the actual CWA, it becomes clear that the Act was not yet able to set sewage treatment standards, but instead established a principle in order to achieve a goal that when somebody uses water, it should be returned at least in the same or better conditions, hence the ultimate goal of the Act to eliminate all water pollution, by 1985. 

It was also realized that such a goal was not yet achievable, since the only technical term used in the legislation was demanding ‘secondary treatment', without any further definition, but which was supposed to be 85% treatment. 

The legislation also selected a ‘technology-based' program, in stead of a ‘water quality-based' program, as it was felt that this would allow local politicians to manipulate local treatment requirements, thus avoiding the purpose and goal of the Act itself.

A technological-based program meant that everybody treating wastewater has to do so with the best treatment available, while a water-quality based program means that treatment standards could be determined by the water quality of the receiving water bodies.

The Act also acknowledged that ‘secondary treatment' would not any longer be acceptable if better treatment would become available and incorporated special legislation to allow EPA to set stricter treatment standards to achieve the ultimate goal of 100% treatment. The Act also provided funding for R&D to achieve better treatment than the initial required ‘secondary treatment'.

When EPA implemented the CWA, it established the NPDES (National Pollution Discharge Elimination System) permit system and established 85% treatment of two commonly used pollution tests, the TSS (Total Suspended Solids) and the BOD5 (Biochemical Oxygen Demand test after 5 days) test.

The BOD5 test was widely used worldwide, but what was forgotten was the fact that the 5-day test was mainly used as a timesaver and only measured the pollution caused by fecal waste. When EPA assumed that the BOD5 of raw sewage is 200 mg/l to establish the ‘secondary treatment' standards, it only addressed 40% of the ultimate BOD, which is 500 mg/l.

By setting 85% BOD5 treatment standards, EPA ignored all the water pollution caused by nitrogenous (urine and protein) waste. For those interested in how the BOD test should be applied, visit www.petermaier,net and look in the Technical PDF file.

Using the BOD5 test without any nitrogen data does not allow the real performance evaluation of sewage treatment plants nordetermine the real waste loadings on receiving water bodies.

Although EPA acknowledged the problems with the test in 1984, in stead of correcting the test, it allowed an alternative test and officially ignored the water pollution caused by nitrogenous waste, while this waste, like fecal waste, not only exerts an oxygen demand, but also in all its forms is a nutrient for algae and other aquatic plant life. Utah States' Science Council in 1984, recommended correcting this essential test, but their recommendation was rejected.

Nitrogenous waste, called a nutrient, according to EPA's 1992 “National Water Quality Inventory Report to Congress” is now causing mayor problems in the nation's rivers, lakes and estuaries.

The sad conclusion is that; solely due a lack of understanding of an essential pollution test, the Clean Water Act, the second largest federally funded public works program, was a failure and nobody seems to either care or can be held accountable.

Peter Maier, PhD, PE

COPPER, CADMIUM, AND ZINC; QAPP Information: QA Info Missing

Final Listing Decision: Delist from 303(d) list

(being addressed by USEPA approved TMDL)

Factors Leading to Failures in Predicting Post-Mine Water Quality and Acid Mine Drainage 

In the report comparing predicted and actual water

quality at hard rock mines (Kuipers et al. 2006), the

authors identified two types of characterization failures

that led to differences between predicted water quality as

speculated in EIS documents and the actual water quality

either during or after mining began. The two characterization

failure types were: 1) insufficient or inaccurate characterization

of the hydrology, and 2) insufficient or inaccurate geochemical

characterization of the proposed mine. Inaccurate pre-mining

characterization and interpretation can, therefore, result in a

failure to recognize or predict water quality impacts. The

authors reported primary causes of hydrologic characterization

failures as follows: overestimations of dilution, lack of hydrological

characterization, overestimations of discharge volumes, and

underestimations of storm size. The primary causes of

geochemical characterization failures were identified as:

lack of adequate geochemical characterization, in terms of sample

representativeness and sample adequacy.

In the 25 case study mines, the authors identified mitigation failures

with the following primary causes: mitigation measures were not

identified or they were inadequate, or not implemented; waste rock

mixing and segregation was not effective, liners leaked, tailings

were spilled, or embankments failed, and land application

discharge was not effective. The authors provided a table

summarizing these failures (Table 1) for the 25 case study mines.

Table 1. Water Quality Predictions Failure Modes, Root Causes

and Examples from Case Study Mines (Kuipers, 2006).

Failure Mode
Root Cause
Hydrologic Characterization
Lack of hydrologic characterization
Royal Mountain King, CA; Black Pine, MT
Dilution overestimated
Greens Creek, AK; Jerritt Canyon, NV
Amount of discharge underestimated
Mineral Hill, MT
Size of storms underestimated
Zortman and Landusky, MT
Geochemical Characterization
Lack of adequate geochemical characterization
Jamestown, CA; Royal Mountain King, CA; Grouse Creek, ID; Black Pine, MT
Sample size and/or representation
Greens Creek, AK; McLaughlin, CA; Thompson Creek, ID; Golden Sunlight, MT; Mineral Hill, MT; Zortman and Landusky, MT; Jerritt Canyon, NV
Mitigation not identified, inadequate, or not installed
Bagdad, AZ; Royal Mountain King, CA; Grouse Creek, ID
Waste rock mixing and segregation not effective
Greens Creek, AK; McLaughlin, CA; Thompson Creek, ID; Jerritt Canyon, NV
Liner leak, embankment failure or tailings spill
Jamestown, CA; Golden Sunlight, MT; Mineral Hill, MT; Stillwater, MT; Florida Canyon, NV; Jerritt Canyon, NV; Lone Tree, NV; Rochester, NV
Land application ineffective
Beal Mountain, MT 
Acid Mine Drainage and Effects on Fish Health and Ecology: A Review 

U.S. Fish and Wildlife Service, Anchorage Fish and Wildlife Field Office,
Anchorage, Alaska, 99501
Prepared by:
Reclamation Research Group, LLC, Bozeman, Montana
June 2008
Suggested Citation: Jennings, S.R., Neuman, D.R. and Blicker, P.S. (2008). “Acid Mine Drainage and Effects on Fish Health and Ecology: A Review”. Reclamation Research Group Publication, Bozeman, MT.

Table of Contents 
Purpose ............................................................................................................................... 1 
Acid Mine Drainage Overview ........................................................................................... 1 
Chemistry of Acid Rock Drainage .................................................................................. 1 
Acid Mine Drainage ........................................................................................................ 3 
Effect of Acid Mine Drainage on Aquatic Resources ........................................................ 5 
Major Environmental Incidents Caused by Acid Mine Drainage ....................................... 7 
Prediction of Acid Mine Drainage ...................................................................................... 7 
Assessment of Acid Rock Drainage and Metals Release ................................................. 11 
Water Quality and Acid Mine Drainage: Pre-mine Predictions and Post-mine Comparisons ....... 13 
Factors Leading to Failures in Predicting Post-Mine Water Quality and Acid Mine Drainage .....14 
Treatment of Acid Mine Drainage .................................................................................... 16 
Recommendations for Acidic Drainage Minimization ..................................................... 16 
Summary ........................................................................................................................... 19 
References and Literature Cited ........................................................................................ 20

In Alaska, several large mine projects are currently proposed, ranging from open-pit, hard rock mines to strip mines for extracting coal. These large-scale projects have the potential to impact fish and wildlife resources through alteration or removal of vast areas of habitat. The U.S. Fish and Wildlife Service (Service) is responsible for managing fish and wildlife resources for the American public and in carrying out its mission, participates in pre-development activities for industrial projects. This report was commissioned to provide information to the Conservation Planning Assistance branch of the Anchorage Fish and Wildlife Field Office to aid in review of documents required as part of the permit process with the U.S. Environmental Protection Agency (EPA), U.S. Army Corps of Engineers and the State of Alaska.
Acid Mine Drainage Overview 
Acid rock drainage (ARD) is produced by the oxidation of sulfide minerals, chiefly iron pyrite or iron disulfide (FeS2). This is a natural chemical reaction which can proceed when minerals are exposed to air and water. Acidic drainage is found around the world both as a result of naturally occurring processes and activities associated with land disturbances, such as highway construction and mining where acid-forming minerals are exposed at the surface of the earth. These acidic conditions can cause metals in geologic materials to dissolve, which can lead to impairment of water quality when acidic and used by terrestrial or aquatic organisms.
metal laden discharges enter watersChemistry of Acid Rock Drainage 
The reaction of pyrite with oxygen and water produces a solution of ferrous sulfate and sulfuric acid. Ferrous iron can further be oxidized producing additional acidity. Iron and sulfur oxidizing bacteria are known to catalyze these reactions at low pH thereby increasing the rate of reaction by several orders of magnitude (Nordstrom and Southam 1997). In undisturbed natural systems, this oxidation process occurs at slow rates over geologic time periods. When pyrite is exposed to oxygen and water it is oxidized, resulting in hydrogen ion release - acidity, sulfate ions, and soluble metal ions as shown in equation 1. The acidity of water is typically expressed as pH or the logarithmic concentration of hydrogen ion concentration in water such that a pH of 6 has ten times the hydrogen ion content of neutral pH 7 water.
2FeS2 (s) + 7O2 + 2H2O –> 2Fe+2 + 4SO4-2 + 4H+ (1)
Further oxidation of Fe+2 (ferrous iron) to Fe+3 (ferric iron) occurs when sufficient oxygen is dissolved in the water or when the water is exposed to sufficient atmospheric oxygen (equation 2).
2Fe+2 + ½ O2 + 2H+ –> 2Fe+3 + H2O (2)
Ferric iron can either precipitate as Fe(OH)3 , a red-orange precipitate seen in waters affected by acid rock drainage, or it can react directly with pyrite to produce more ferrous iron and acidity as shown in equations 3 and 4.
2Fe+3 + 6H2O <–> 2Fe(OH)3 (s) + 6H+ (3)
14Fe+3 + FeS2 (s) + 8H2O –> 2SO4 -2 + 15Fe+2 + 16H+ (4)
When ferrous iron is produced (equation 4) and sufficient dissolved oxygen is present the cycle of reactions 2 and 3 is perpetuated (Younger, et al., 2002). Without dissolved oxygen equation 4 will continue to completion and water will show elevated levels of ferrous iron (Younger, et al., 2002). The rates of chemical reactions (equations 2, 3, and 4) can be significantly accelerated by bacteria, specifically Thiobacillus ferrooxidans. Another microbe, Ferroplasma Acidarmanus, has been identified in the production of acidity in mine waters (McGuire et al. 2001)
Hydrolysis reactions of many common metals also form precipitates and in doing so generate H+. These reactions commonly occur where mixing of acidic waters with
substantial dissolved metals blend with cleaner waters resulting in precipitation of metal hydroxides on stream channel substrates (Equations 5 through 8).
Al+3 + 3H2O <–> Al(OH)3(s) + 3H+ (5)
Fe+3 + 3H2O <–> Fe(OH)3(s) + 3H+ (6)
Fe+2 + 0.25 O2 + 2.5 H2O <–> Fe(OH)3(s) + 2H+ (7)
Mn+2 + 0.25 O2 + 2.5 H2O <–> Mn(OH)3(s) + 2H+ (8)
Metal sulfide minerals in addition to pyrite may be associated with economic mineral deposits and some of these minerals may also produce acidity and SO4-2. Oxidation and hydrolysis of metal sulfide minerals pyrrhotite (Fe1-xS), chalcopyrite (CuFeS2), sphalerite ((Zn, Fe)S) and others release metals such as zinc, lead, nickel, and copper into solution n addition to acidity and SO4-2 (Jennings et al., 2000; Younger et al., 2002).
  Acid Mine Drainage 
Acid rock drainage occurs when sulfide ores are exposed to the atmosphere, which can be enhanced through mining and milling processes where oxidation reactions are initiated. Mining increases the exposed surface area of sulfur-bearing rocks allowing for excess acid generation beyond natural buffering capabilities found in host rock and water resources. Collectively the generation of acidity from sulfide weathering is termed Acid Mine Drainage (AMD).1 Mine tailings and waste rock, having much greater surface area than in-place geologic material due to their smaller grain size, are more prone to
1 As this literature review is focused on mining, the term AMD will be used in the text, yet rocks found in undisturbed environments are similarly able to generate acidity (or ARD) without the anthropogenic influence of mining. The term Mine Influence Water is also synonymous.
generating AMD. Since large masses of sulfide minerals are exposed quickly during the mining and milling processes, the surrounding environment can often not attenuate the resulting low pH conditions. Metals that were once part of the host rock are solubilized and exacerbate the deleterious effect of low pH on terrestrial and aquatic receptors. Concentrations of common elements such as Cu, Zn, Al, Fe and Mn all dramatically increase in waters with low pH. Logarithmic increases in metal levels in waters from sulfide-rich mining environments are common where surface or groundwater pH is depressed by acid generation from sulfide minerals.2 These environmental, human health, and fiscal consequences, if not mitigated, can have long-lasting effects. Acid mine drainage continues to emanate from mines in Europe established during the Roman Empire prior to 467 AD (CSS, 2002). Georgius Agricola's De Re Metallica (1556), the first and seminal treatise on mining exhibits detailed woodcut illustrations not only of the known mechanics of 16th Century mining, but also depictions of the devastation of streams. The cost of mitigation of environmental damage from acid mine drainage is great. The U.S. Forest Service (USFS) estimates that between 20,000 to 50,000 mines are currently generating acid on lands managed by that agency; with negative impacts from these mines affecting some 8,000 to 16,000 km of streams (USDA, Forest Service 1993). Many of these mines are small abandoned facilities located in remote areas of the western United States and originating prior to modern environmental controls. However, several large scale mines developed in the latter half of the twentieth century have declared bankruptcy and left tax payers with the responsibility of treating acid waters in perpetuity. Examples include the Zortman Landusky Mine in Montana, the Summitville Mine in Colorado, and the Brohm Mine in South Dakota. The largest and most expensive sites that EPA has listed under the Comprehensive Environmental Resource Compensation and Liability ACT (CERCLA; aka Superfund) are mining sites in the West, including Iron Mountain Mine in California, Bunker Hill in Idaho, and the Butte-Clark Fork River complex in Southwestern Montana. Human health risks and ecological injury, chiefly from elevated metals, have been identified by EPA and natural resource trustees at many of these mega-mining Superfund sites.
Acidic drainage has been identified as the largest environmental liability facing the Canadian mining industry and is estimated at $2 to $5 billion dollars (MEND 2001). In response to the challenge presented by mitigation of AMD, 200 technology-based reports were generated to evaluate sampling, prediction, prevention, treatment and monitoring of potentially acid-generating materials and locations. A 1986 estimate for Canada suggests
2 Note: The authors recognize that AMD and elevated metal levels in water are inextricably linked, however the purpose of this report is to assess the effect of acidity on fisheries independent from elevated metals.
that acid-generating tailings cover 12,000 hectares plus an additional 350 million tons of mine waste rock were noted (MEND 2001).
Effect of Acid Mine Drainage on Aquatic Resources 
Once acid drainage is created, metals are released into the surrounding environment, and become readily available to biological organisms. In water, for example, when fish are exposed directly to metals and H+ ions through their gills, impaired respiration may result from chronic and acute toxicity. Fish are also exposed indirectly to metals through ingestion of contaminated sediments and food items. A common weathering product of sulfide oxidation is the formation of iron hydroxide (Fe(OH)3), a red/orange colored precipitate found in thousands of miles of streams affected by AMD. Iron hydroxides and oxyhydroxides may physically coat the surface of stream sediments and streambeds destroying habitat, diminishing availability of clean gravels used for spawning, and reducing fish food items such as benthic macroinvertebrates. Acid mine drainage, characterized by acidic metalliferous conditions in water, is responsible for physical, chemical, and biological degradation of stream habitat.
Water contaminated by AMD, often containing elevated concentrations of metals, can be toxic to aquatic organisms, leaving receiving streams devoid of most living creatures (Kimmel 1983). Receiving waters may have pH as low as 2.0 to 4.5, levels toxic to most forms of aquatic life (Hill 1974). Data relating to specific effects of low pH on growth and reproduction (Fromm 1980) may be related to calcium metabolism and protein synthesis. Fromm (1980) suggested that a “no effects” level of pH for successful reproduction is near 6.5, while most fish species are not affected when the pH is in a range from 5.5 to 10.5. Howells et al. (1983) reported interactions of pH, calcium, and aluminum may be important to understanding the overall effects on fish survival and productivity. Several reports indicate low pH conditions alter gill membranes or change gill mucus resulting in death due to hypoxia. Hatchery raised salmonids can tolerate pH 5.0, but below this level hemeostatic electrolyte and osmotic mechanisms become impaired (Fromm 1980).
A study of the distribution of fish in Pennsylvania streams affected by acid mine drainage (Cooper and Wagner 1973) found fish severely impacted at pH 4.5 to 5.5. Ten species revealed some tolerance to the acid conditions of pH 5.5 and below; 38 species were found living in waters with pH values ranging from 5.6 to 6.4; while 68 species were found only at pH levels greater than 6.4. Further, these investigators reported complete loss of fish in 90% of streams with waters of pH 4.5 and total acidity of 15 mg/L. Healthy, unpolluted streams generally support several species and moderate abundance of
individuals; whereas impacted streams are dominated by fewer species and often low to moderate numbers of only a few organisms. Streams affected by acid mine drainage are poor in taxa richness and abundance. In older studies (Warner 1971), more species of insects and algae were found in unpolluted West Virginia streams (pH > 4.5) compared to those streams polluted by acid (pH 2.8 to 3.8). Reductions of benthic fauna in a West Virginia stream severely affected by acid mine water were reported by Menendez (1978). In more recent studies (Farag et al. 2003), some streams in the Boulder River watershed in Montana impacted by nearly 300 abandoned metal mines are devoid of all fish near mine sources. Populations of brook trout (Salvelinus fontinalis), rainbow trout (Oncorhynchus mykiss), and cutthroat trout (O. clarki) were found further downstream and away from sources of acid mine drainage. In a 2003 study evaluating the effect of localized habitat degradation from a gold mine near the Yukon River (in AK?) on population structure of salmon, it was suggested that coho salmon (O. kisutch) may be at risk of losing genetic diversity due to localized habitat degradation (Olsen et al. 2004). The abandoned Britannia copper mine in British Columbia has been releasing acid mine drainage into local waters for many years. Investigators compared fish abundance, distribution and survival at contaminated and non-contaminated areas (Barry et al. 2000). Chum salmon (O. keta) fry abundance was significantly lower near the impacted waters (pH < 6 and dissolved copper > 1 mg/L) than the reference area. The investigators also reported that laboratory bioassays confirmed acid mine drainage from the Britannia Mine was toxic to juvenile chinook (O. tshawytscha) and chum salmon. Chinook salmon smolt transplanted to surface cages near Britannia Creek experienced 100% mortality within 2 days (Barry 2000).
The scientific literature is replete with studies designed to quantify the adverse environmental effects of acid mine drainage on aquatic resources. Most recent investigations focus on multiple bioassessments of large watersheds. These assessments include water and sediment chemistry, benthic macroinvertebrate sampling for taxa richness and abundance, laboratory acute water column evaluations, laboratory chronic sediment testing, caged fish within impacted streams, and development of models to explain and predict impacts of acid mine drainage on various aquatic species (Soucek et al. 2000, Woodward et al. 1997, Maret and MacCoy 2002, Hansen et al. 2002, Kaeser and Sharpe 2001, Baldigo and Lawrence 2000, Johnson et al. 1987, Griffith et al. 2004, Schmidt et al. 2002, Martin and Goldblatt 2007, Beltman et al. 1999, Hansen et al. 1999, Boudou et al. 2005).
Major Environmental Incidents Caused by Acid Mine Drainage 
Releases of acid mine waters containing elevated metal and cyanide concentrations with resulting impacts to landscapes and waterways have been documented by several organizations (UNEP 2002). Fish kills resulting from the uncontrolled release of acid and metals from mine wastes into receiving streams have been reported from world wide areas in which hard rock mining, milling, and smelting activities have occurred. In 1998, a mine flood incident in Spain deposited some 6 million m3 of acid water over the banks of the Guadiamar River with metal and sulfide rich sediments. The U.S. EPA described 66 incidents in which environmental injuries from mining activities are detailed (EPA 1995). Nordstrom and Alpers (1999) reported that millions, perhaps billions, of fish have been killed from mining activities in the U.S. during the past century.
In 1989, a large fish kill (> 5000 salmonids) in Montana's Clark Fork River resulted when acid, metalliferous tailings and efflorescent metal salts were flushed into the river during a thunderstorm event. Within 20 minutes, the acidity of the river water was reduced by several orders of magnitude, and copper concentrations rose dramatically. Fish gill tissue copper levels indicated acute toxicity (Munshower et al. 1997). The Sacramento River in California has experienced several fish kills due to sudden releases of acid water from upstream mine areas; more than 20 fish kills were reported since 1963, and in 1967, at least 47,000 fish died (Nordstrom et al. 1977).
Prediction of Acid Mine Drainage 
Accurate prediction of acidic drainage from proposed mines is recognized by both industry and government as a critical requirement of mine permitting and long-term operation. Substantial emphasis has been placed on prediction of acid drainage associated with coal development in the Eastern U.S. (Pennsylvania DEP 1998; Skousen and Ziemkiewicz, 1996), and metal mining in the Western U.S. and in Canada (MEND 2001). The standard protocols for evaluating geologic materials for their ability to produce AMD are generally agreed upon within the scientific community, yet much uncertainty remains in the ability of scientists and engineers to predict the ultimate drainage quality years in the future, as many complex variables influence acid generation and neutralization.
The backbone of predicting acid generating potential from any geologic formation is the ability to characterize the presence and quantity of both acid-forming minerals and
neutralizing minerals in the geologic materials to be unearthed during mining operations. Typically samples are collected by drilling during exploration, analyzed and interpreted with respect to their risk of acid formation. Methods for characterizing acid-forming minerals were developed during the 1970's in areas of the eastern U.S. mined for coal (Smith et al., 1974). Ultimately, these techniques lead to a standardized EPA protocol for characterization of mine soil and overburden (Sobek et al., 1978). In these analytical approaches, the amount of sulfur present in geologic materials is measured and attributed to being either an acid-forming mineral such as pyrite (FeS2) or non-acid-forming mineral such as gypsum (CaSO4?2H2O). The relative amount of acid-forming minerals is then contrasted to the amount of neutralizing minerals such as calcite (CaCO3) to develop a prediction of the probability of acid generation. The ratio of neutralization potential (NP) to acid potential (AP) is commonly presented in graphical interpretations with the inference that geologic materials with an abundance of NP are unlikely to generate acidic drainage. In Eastern coal mines NP:AP ratios <1 commonly produce acidic drainage, NP:AP ratios between 1 and 2 may produce either acidic or neutral drainage and NP:AP ratios >2 should produce alkaline water (Skousen et al., 2002). However, this index does not always accurately predict the resultant acid generation from a mine. Of 56 mines evaluated by Skousen and others (2002) 11% did not conform to the expected results based on NP:AP ratios, including four sites with ratios > 2: these sites eventually produced acidic drainage. Furthermore, the applicability of the experimental findings from West Virginia coal deposits hosted in sedimentary rock to metal mines developed in igneous parent material is unknown. Sedimentary sulfide mineralization is caused by diagenetic interaction between microbes, Fe and S in a low temperature saturated environment resulting in formation of poorly crystallized pyrite while igneous pyrite is formed by high temperature magmatic fluids or molten rock cooling slowly to form well developed crystalline structure. Mineralogical variation between each geologic domain causes dissimilar reactivity to weathering conditions and leads to laboratory variability in assessment. Recurrence of inaccurate interpretations between laboratory and field data has caused investigators to reexamine the adequacy of the analytical methods. Because of the challenges inherent in interpreting laboratory data and predictive models, forecasting future water quality impacts from AMD should not be considered routine and robust, rather they should be considered an area of uncertainty and on-going research.
If the rates of weathering and availability of acid-forming and neutralizing minerals are dissimilar the potential exists that acid-generation may overwhelm the pool of resident NP. Slowly reacting neutralizing minerals may lead to generation of acidic water. Sherlock and others (1995) evaluated the rates of weathering of sulfides, carbonates and silicates and determined that sulfide minerals reacted fastest and cautioned that conventional methods of prediction do not consider the specific mineralogy and reaction kinetics are at risk of erroneous interpretations and predictions.
Research has also focused on the presence of minerals which are detected by the NP analytical method, yet do not contribute to production of alkalinity. Siderite (FeCO3) has been found in mining environments and while contributing to the measured NP, no actual neutralization has been observed in the field (Frisbee and Hossner, 1989). In an evaluation of 31 overburden3 samples containing siderite, pyrite, calcite and quartz using 4 dissimilar methods for NP determination, siderite-containing samples showed wide variation in NP between three laboratories (Skousen et al., 1997). Using the standard Sobek (1978) test for NP, Weber and others (2004) showed that up to 432 hours may be required for complete hydrolysis of siderite-containing samples in laboratory testing, implying that inaccurate interpretations of NP are common for rock containing this siderite since routine laboratory tests would not be run for such a great length of time. The limitations of laboratory testing for NP without supporting mineralogical characterization can often lead to overestimation of NP (Lawrence and Scheske, 1997; Paktunc, 1999). Conventional laboratory methods for determination of NP employ wet chemical methods where the presence of carbonates in soil is made based on titration of a sample with acid followed by back titration with a base. No determination of the mineralogical source of carbonate is made by the NP test. Similarly, quantification of acid-forming minerals is challenging in a laboratory setting. Analysis of total sulfur levels is routinely accomplished using standardized laboratory equipment, however the typical Sobek method employs subsequent acid extractions to distinguish between acid-forming minerals containing sulfur and non-acid sulfur minerals. In research using pure mineral samples, Jennings and Dollhopf (1995) showed that conventional analytical methods failed to accurately characterize acid-forming minerals. Incomplete recovery of sulfur-bearing minerals has been observed using the Sobek method since a residual sulfur fraction is commonly observed in laboratory testing implying the standard method of dissolution failed to solubilize or dissolve the sulfide found in the sample. Regional variation is observed in the interpretation of residual sulfur leading to non-standardized findings. The residual sulfur component is commonly characterized as non-acid forming organic sulfur in sedimentary rock and as acid-forming sulfide in metal mining samples. Collectively, the static tests described have significant limitations in accurately predicting whether acidic drainage will form.
Kinetic4 tests are commonly run as a companion to static5 testing to measure the weathering behavior of geologic material when exposed to field conditions. Kinetic tests
3 Overburden is defined as geologic material overlying a resource of interest. In surface mining overburden is typically removed as waste material.
4 Kinetic tests of mine waste are typically accomplished by monitoring the chemical constituents in water resulting from simulated laboratory weathering or actual field site weathering of mine waste materials over a period of months to years. Water is leached through the geologic material and recovered as drainage.
may be run in a laboratory column or in the field in large containers. The quality and quantity of leachate is subsequently evaluated to offer a supporting interpretation to static testing. Six large columns each containing 1.6 tons of waste rock were evaluated over a period of 3 years showing two pH controls: 1) sulfide oxidation with calcite dissolution sustaining a neutral pH, and 2) simultaneous silicate and sulfide weathering occurring at an equilibrium pH of 3-4 (Stromberg and Banwart, 1999). During the period of investigation the columns either remained at near-neutral pH or became acidic after 0.5 to 3 years lag time. The lag time in appearance of low pH was caused by mineralogical reactions occurring in the waste rock that either neutralized the acidity formed until exhausted or rendered non-reactive, or the acid reactions required a period of time to initiate. In a companion study Stromberg and Banwart (1999) showed there was a large difference in weathering rates based on particle size. In the columns particles smaller than 0.25 mm were responsible for approximately 80% of both the sulfide oxidation and silicate dissolution. Calcite particles larger than 5-10 mm were found to react too slowly to neutralize acid produced by sulfide oxidation. Similar unique reaction kinetics has been observed at the Bingham Canyon Mine in Utah where fresh waste rock exhibits a paste pH6 of 7.0. Within 6 years the pH of the waste rock dumps declines to 4.7 further decreasing to pH 3.7 after 50 years of weathering (Borden 2001). Scharer and others (2000) observed that NP was strongly related to particle size and particles greater than ¼ inch (6.4 mm) were only 20% consumed at the onset of acid conditions. Kinetic data on the depletion rate of NP supplemented by geochemical modeling suggests that waste rock with NP/AP ratios as high as 5 may turn acidic in the long term: this is much different than the results mentioned above by Skousen (2002) who identified 2 as the ratio below which NP/AP ratios would generally not become acidic. If neutralizing minerals are depleted or non-reactive long-term generation of acidic drainage may be initiated with potentially dire ecological consequences if untreated.
Notable uncertainty exists in the long-term predictions of acid generation from geologic materials found in mining environments. Evaluation of Environmental Impact Statements from 25 mines performed by Kuipers and others (2006) showed 15 of 25 mines (60%) exceeded surface water quality standards for metals and pH after permitting.
5 Static testing is the laboratory analysis of geologic materials for chemical characteristics such as total metal levels, pH or total S. Static testing is the analysis of the bulk concentrations in rock or soil material.
6 Paste pH or saturated paste pH is the measurement of pH in a slurry of soil or rock with deionized water after allowing time for reaction of the slurry. Paste pH is a measure of the soil solution indicative of the acidity of soil water in the context of plant growth or leaching to groundwater.
Similarly, kinetic tests performed using humidity cells7 over a 3 to 7 year period showed that rates of acid generation have a 50% chance of stabilizing within one year while the remainder of the humidity cells fluctuated significantly throughout the test periods (Morin and Hutt, 2000).
Assessment of Acid Rock Drainage and Metals Release 
Canada's Mine Environment Neutral Drainage (MEND) Program was implemented to develop and apply new technologies to prevent and control acid drainage. Recognizing acid drainage as the greatest environmental problem facing the mining industry and the regulatory agencies' responsibility to protect the environment and safeguard human health, the MEND Program was funded jointly by Natural Resources Canada and The Mining Association of Canada. In 2005, MEND released a report titled List of Potential Information Requirements in Metal Leaching/Acid Rock Drainage Assessment (ML/ARD) and Mitigation Work (Price 2005). The purpose of this document is to improve the assessment and mitigation of metal leaching/acid rock drainage. It achieves this goal by providing a comprehensive list of information and data necessary to assess the potential for ML/ARD, and multiple strategies for mitigation. The document is intended to be used as a general guide for the mining industry, regulators, environmental advocacy groups, and other stakeholders. The MEND program uses the term ‘Acid Rock Drainage' to describe the acidic water drainage from mines.
The MEND report (Price 2005) recommends a set of informational variables and data that should be generated and developed so that informed decisions can be made with respect to the potential for acid drainage and toxic metal release. These recommendations were intended to mitigate the consequences of sulfide mineral oxidation caused by mining, milling, and other process involved in metal resource development. These information requirements are summarized in the following statements:
General site characteristics: location, access, climate, ecology, history of previous mining, waste materials, geology, hydrology, mineralogy, descriptions of all materials that will be excavated or exposed, soils, reclamation objectives, end land uses, data tables, relevant figures, and other pertinent information. This is not exhaustive and site-specific information and data will be required.
7 Humidity cells are laboratory equipment to simulate weathering of rock in a small benchtop enclosure where soil or rock is repeatedly wetted and dried over a period of months to years to monitor changes in drainage water quality. A humidity cell is a specialized type of kinetic testing.
Specific material characterization and predictions of ML/ARD: The ability to accurately predict the potential for ML/ARD requires a careful and complete characterization of all materials and waste types under the probable weathering (oxygen, bacteria, moisture, volumes of materials, etc.) conditions. Representativeness and adequacy of samples collected, measures of variability and uncertainty, and analytical procedures selected need to be appropriate. Industry-regulatory quality assurance and quality control procedures need to be followed. To be complete, predictions and assessments are to be made pre-mining (baseline data), during the operational phase, post-mining, and long-term. The document defines specific tests to define the geological and mineralogical properties of materials.
Static and kinetic tests: Static tests require appropriate sampling intensity, sample preparation, determinations of elemental concentrations (total and water soluble), and full acid-base accounting. Kinetic tests are recommended to evaluate reaction rates and to predict and measure drainage chemistry. Humidity cell, column test and actual field verification tests should be conducted. Monitoring of site drainage (seeps, mine drainage, pit lakes, etc.) should include parameters to be evaluated and the frequency of monitoring during and post-mining.
Assessments of waste materials: Waste materials may include waste rock, tailings, treatment wastes, low grade ore and overburden materials. All media require assessments and predictions for acid drainage and releases of metals. Post-disposal weathering of waste piles, including changes in pH, carbonate content, soluble weathering products (acid water and metals). Thermal properties, pore gas composition, and oxygen concentrations may be significant parameters in the assessments of long-term water quality degradation.
The MEND document (Price 2005), also provides an approach to interpretation and display of the above characterization data. Identification of ARD generating materials is important, but toxicity from metals with neutral pH can be significant factors and are not to be overlooked. Predicting drainage chemistry is based on data and information gathered and their proper interpretation. Factors include the weathering environment and climate, data predicting ARD/ML potential, anticipated rates of leaching from mine wastes and mine workings, metal releases based on kinetic tests and geochemical modeling. Additional issues are in stream alkalinity, dilution, and natural attenuation.
Estimating environmental and ecological impacts should be based on identifying potential receptors, endangered species, sensitivity and distributions of selected species and forms of exposure. A conceptual site model can be useful in determining mechanisms of contaminant release, contaminant pathways and receptors of concern. Acute and
chronic toxicity testing of identified aquatic and terrestrial receptors and pre- and post-mining monitoring programs are recommended.
In the United States, the National Research Council (1999) took up the issue of metal mining recognizing the controversy associated with permitting and compliance of hardrock mining. The committee was well versed on the potential deleterious impacts of mining and spent most of their deliberations contemplating the weaknesses of the existing regulatory framework. Recommendations were put forward for the Federal agencies consideration suggesting greater coordination and use of the best available scientific practices. This report did not explore technical topics such as AMD in detail, rather the recommendations were policy oriented.
Water Quality and Acid Mine Drainage: Premine Predictions and Postmine Comparisons 
A major and unique study (Kuipers et al. 2006) was conducted comparing predicted and actual water quality at several mines in the United States. The overall purpose of this study was to examine the reliability of pre-mining water quality predictions at hard rock mining operations. The approach included reviews of the history and accuracy of water quality predictions in Environmental Impact Statements (EISs) for major hard rock mines and then examined and compared actual water quality to the predictions postulated in the EISs. A total of 183 mines were identified, with 71 having reviewed EISs. The investigation focused on 25 mines for in-depth analysis. Nearly all of the EISs reviewed reported that they expected acceptable water quality (concentrations lower than relevant standards) after mitigation was taken into account. Data analyses in this report, in general, refuted these EIS predictions. The following are major findings of the investigation:
Surface water: Sixty percent of the case study mines (15/25) exceeded surface water quality standards due to mining-related activities. Of these, four (17%) noted a low potential to exceed standards, seven (47%) a moderate potential, two a high potential, and three had no information in their EISs for surface water quality impacts in the absence of mitigation measures. The specific water quality parameters exceeding standards varied between sites and were not specifically identified in the report.
Ground water: The majority (64% or 16/25) of the case study mines also exceeded drinking water standards in groundwater. At three of the mines, all in Nevada, the elevated concentrations of metals that did not meet the standards may be related to baseline conditions. However, due to mining activities, 52% of the case study mines
clearly exceeded standards in surface water. In terms of post-mitigation groundwater quality impacts, 77% (10/13) of the mines that predicted low groundwater quality impacts in their EISs were above the water quality standards. Most mines predicted no impacts to groundwater quality after mitigation were in place, but in the majority of case study mines, impacts have occurred.
Metals of Concern: Elements that most often exceeded standards or that had increasing concentrations in groundwater or surface water included toxic heavy metals such as copper, cadmium, lead, mercury, nickel, or zinc (12/19 or 63% of mines), arsenic and sulfate (11/19 or 58% of mines for each) and cyanide (10/19 or 53% of mines).
Acid mine drainage: The majority of the case study mines (18/25 or 72%) predicted low potential for acid drainage in one or more EISs. Of the 25 case study mines, 36% have developed acid drainage on site to date. Of these 9 mines, 8 (89%) predicted low acid drainage potential initially or had no information on acid drainage potential. The Greens Creek Mine in Alaska initially predicted moderate acid drainage potential but later predicted low potential for acid drainage for an additional waste rock disposal facility. Therefore, nearly all the mines that developed acid drainage either underestimated or ignored the potential for acid drainage in their EISs.
Factors Leading to Failures in Predicting PostMine Water Quality and Acid Mine Drainage 
In the report comparing predicted and actual water quality at hard rock mines (Kuipers et al. 2006), the authors identified two types of characterization failures that led to differences between predicted water quality as speculated in EIS documents and the actual water quality either during or after mining began. The two characterization failure types were: 1) insufficient or inaccurate characterization of the hydrology, and 2) insufficient or inaccurate geochemical characterization of the proposed mine. Inaccurate pre-mining characterization and interpretation can, therefore, result in a failure to recognize or predict water quality impacts. The authors reported primary causes of hydrologic characterization failures as follows: overestimations of dilution, lack of hydrological characterization, overestimations of discharge volumes, and underestimations of storm size. The primary causes of geochemical characterization failures were identified as: lack of adequate geochemical characterization, in terms of sample representativeness and sample adequacy.
In the 25 case study mines, the authors identified mitigation failures with the following primary causes: mitigation measures were not identified or they were inadequate, or not
implemented; waste rock mixing and segregation was not effective, liners leaked, tailings were spilled, or embankments failed, and land application discharge was not effective. The authors provided a table summarizing these failures (Table 1) for the 25 case study mines.
Table 1. Water Quality Predictions Failure Modes, Root Causes and Examples from Case Study Mines (Kuipers, 2006).
Failure Mode
Root Cause
Hydrologic Characterization
Lack of hydrologic characterization
Royal Mountain King, CA; Black Pine, MT
Dilution overestimated
Greens Creek, AK; Jerritt Canyon, NV
Amount of discharge underestimated
Mineral Hill, MT
Size of storms underestimated
Zortman and Landusky, MT
Geochemical Characterization
Lack of adequate geochemical characterization
Jamestown, CA; Royal Mountain King, CA; Grouse Creek, ID; Black Pine, MT
Sample size and/or representation
Greens Creek, AK; McLaughlin, CA; Thompson Creek, ID; Golden Sunlight, MT; Mineral Hill, MT; Zortman and Landusky, MT; Jerritt Canyon, NV
Mitigation not identified, inadequate, or not installed
Bagdad, AZ; Royal Mountain King, CA; Grouse Creek, ID
Waste rock mixing and segregation not effective
Greens Creek, AK; McLaughlin, CA; Thompson Creek, ID; Jerritt Canyon, NV
Liner leak, embankment failure or tailings spill
Jamestown, CA; Golden Sunlight, MT; Mineral Hill, MT; Stillwater, MT; Florida Canyon, NV; Jerritt Canyon, NV; Lone Tree, NV; Rochester, NV
Land application ineffective
Beal Mountain, MT
Treatment of Acid Mine Drainage 
Water treatment for elevated metal levels and acidity is a common outcome of acid mine drainage. The effectiveness and feasibility of water treatment is highly variable depending on the treatments employed and unique site characteristics. Water treatment installations may include both passive and active systems. Passive water treatment systems, typically wetlands, operate without chemical amendments and without motorized or mechanized assistance. In contrast active water treatment systems are highly engineered water treatment facilities commonly employing chemical amendment of acid mine water to achieve a water quality standard specified in a discharge permit. In-depth evaluation of AMD treatment options was not performed as part of this literature review; rather emphasis was placed on prevention of AMD formation. Active treatment systems are operational at the Berkeley Pit, Butte, Montana; Britannia Beach, British Columbia; Iron Mountain Mine, Shasta County, California; and, Idaho Springs/Clear Creek, Colorado. Passive treatment systems are most frequently employed in Appalachian coal mining regions for control of acidic drainage. Semi-passive treatment systems are also in use where alkaline amendments are added to surface water at remote sites such as the Summitville Superfund site, Colorado.
Recommendations for Acidic Drainage Minimization 
Acidic drainage from mines is observed at many mine sites and the undesirable consequences of acidification are well known. Every effort should be employed to minimize the causes of acid generation. Because mineralogy and other factors (particle size, reactivity of NP and presence of oxidizers) that influence AMD formation are highly variable from one mine to another, and among different geologic materials within a proposed mine site, accurate prediction of future acid generation is difficult at best. Predicting the potential for AMD formation is costly, and of questionable reliability (Kuipers et al. 2006). In addition, concern has arisen over the lag time between waste emplacement and observation of an acid drainage problem. With acid generation, there is no general method to predict its long-term duration or to predict when acidic drainage will commence. There are historical, and now modern mining examples of long-term AMD generation requiring active treatment in perpetuity. There are two primary approaches to addressing AMD: circumvent mining sulfide rich ore deposits with high AMD potential, and implementing mitigation measures to limit potential AMD impacts. It is noted that avoiding mining of sulfide ores with the potential to form AMD may be difficult because they are most often associated with the mineral resource of interest.
Selective handling and avoidance of sulfide ore and overburden is a strategy for minimizing the risk of future acid generation (Skousen et al., 1998). In a review of selective handling of acid-forming materials in coal mining in the Eastern U.S., Perry and others (1997) found that selective handling had not eliminated acid formation due in part to the inherent difficulty in segregating benign overburden from acid-forming waste. In some mining operations acid-forming minerals can be avoided through the mine planning process or through using underground mining rather than surface mining.
Mine waste isolation and avoidance of oxidizing conditions can be performed using several methods that keep sulfides isolated from oxygen. Subaqeous disposal of tailings and waste rock below the water table is commonly practiced in Canada as a protocol for mine reclamation (Samad and Yanful, 2004). Paste backfill is a mining methodology for minimization of acid formation by backfilling mine workings using a mixture of mine tailings, Portland cement and other binders to create a waste disposal option that is both geotechnically stable and geochemically non-reactive since sufficient NP can be added to neutralize any future acidity (Benzaazoua, T.B. and B. Bussiere, 2002). Depyritization of tailings can be accomplished to remove sulfide minerals from waste products to create a benign sand fraction suitable to use as a general backfill and a companion low-volume sulfide concentrate requiring careful disposal. Most mine tailings contain small amounts of sulfide minerals that can be readily separated from non-acid forming silicate minerals using conventional mineral processing equipment to create a cleaned material with sufficient NP to ameliorate any future acidity (Benzaazoua, B. et al., 2000).
In many cases, the measures described above are most effective when used in combination and adapted to the situation at a specific site. For the most part, only limited data are available to document the long-term effectiveness of any of these controls. The Kuipers Report (2006) provides a unique view of the failure to predict the formation of AMD at many hardrock mines. There are many research investigations being conducted by university, government, and industrial entities to develop new treatment strategies for AMD. The transfer of laboratory data to site-specific conditions (climate, geology, physical properties of ores, etc.) can be problematic and significantly impact their feasibility and performance in the field.
Thorough baselines studies of the biological, hydrologic, and geochemical conditions characteristic of the unique site are required to provide a basis for long-term monitoring and provide an insight into mechanistic processes involved in AMD evolution (Edwards et al., 2000). Associated financial assurances for resource mitigation in the event of default of a mine property are also required (NRC, 1999) to ensure both short-term and long-term mitigation of AMD and the associated impacts to water quality and fisheries.
Based on review of the acid mine drainage literature it is clear that severe world-wide ecological consequences, especially for aquatic resources, have resulted from mining ore deposits with acid-forming minerals. Accurate prediction of the onset and aggressiveness of low-quality acidic water discharge is perilously difficult using the best available science. Multiple complex geochemical, biological and hydrologic factors create a daunting task for mining engineers to profitably recover mineral resources while preventing discharges of metals and acidity to surface and ground water. The deleterious effects of elevated metals levels and acidity to salmonids are clearly reported in the scientific literature. The inevitability of impacts to fisheries from AMD caused by mining is an open question and dependent on the outcome of complex geochemical reactions and human attempts to understand and mitigate their consequences. The track record of industry is replete with problems, thus little comfort is afforded by extensive pre-mine studies.
Acid mine drainage commonly forms as a result of natural geochemical processes that oxidize metal sulfides exposed at the earth's surface by mining. Oxidation of sulfur and hydrolysis of iron result in acid-sulfate waters which have been observed at thousands of historic mine sites and at operational mines where mitigation measures have failed to prevent the release of acid mine drainage to down-gradient surface waters. Resultant low pH conditions mobilize metals from waste materials resulting in degradation of water quality and impairment of aquatic health. Acid mine drainage and associated weathering products commonly result in physical, chemical and biological impairment of surface water. Pre-mine characterization of the risk of AMD formation is often inaccurate leading to notable post-mine risk to fisheries. Fisheries have been impaired world-wide by releases of AMD from mining areas. The mining industry has spent large amounts of money to prevent, mitigate, control and otherwise stop the release of AMD using the best available technologies, yet AMD remains as one the greatest environmental liabilities associated with mining, especially in pristine environments with economically and ecologically valuable natural resources. Problematic to the long-term operation of large scale metal mines is recognition that no hard rock surface mines exist today that can demonstrate that AMD can be stopped once it occurs on a large scale. Evidence from literature and field observations suggests that permitting large scale surface mining in sulfide-hosted rock with the expectation that no degradation of surface water will result due to acid generation imparts a substantial and unquantifiable risk to water quality and fisheries.
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Nordstrom, D. K., and C. N. Alpers (1999). "Negative pH, efflorescent mineralogy, and consequences for environmental restoration at the Iron Mountain Superfund site, California." Proc. Natl. Acad. Sci. USA 96(7): 3455-3462.
Nordstrom, D. K., and C. N. Alpers (1999). “Negative pH, efflorescent mineralogy, and consequences for environmental restoration at the Iron Mountain Superfund site, California.” National Academy of Science. 96 (7): 3455-3462.
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Patunc, A. D. (1999). "Mineralogical constraints on the determination of neutralization potential and prediction of acid mine drainage." Environmental Geology 39(2): 103-112.
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Perry, E. F., M.D. Gardner, and R.S. Evans (1997). “Effect of acid material handling and disposal on coal mine drainage quality.” Fourth International Conference on Acid Rock Drainage, Vancouver, B.C.
Price, W. A. (2005). MEND. “List of potential information requirements in metal assessment and mitigation work.” CANMET Mining and Mineral Sciences Laboratories, Natural Resources Canada. Division Report MMSL 04-040 (TR); MEND Report 5.10E.
Samad, M. A., and E.K. Yanful. (2005). "A design approach for selection the optimum water cover depth for subaqueous disposal of sulfide mine tailings." From http:
Scharer, J. M., L. Bolduc, C.M. Pettit, and B.E. Halbert (2000). “Limitations of Acid-base Accounting for Predicting Acid Rock Drainage”. Fifth International Conference on Acid Rock Drainage, Denver, CO, Society for Mining, Metallurgy and Exploration (SME).
Schmidt, T. S., D. J. Soucek, and D. S. Cherry (2002). "Modification of an ecotoxicological rating to bioassess small acid mine drainage-impacted watersheds exclusive of benthic macroinvertebrate analysis." Environmental Toxicology and Chemistry 21(5): 1091-1097.
Sherlock, E. J., R.W. Lawrence, and R. Poulin (1995). "On the neutralization of acid rock drainage by carbonate and silicate minerals." Environmental Geology 25(1): 43-54.
Skousen, J., J. Renton, H. Brown, P. Evans, B. Leavitt, K. Brady, L. Dohen, and P. Ziemkiewicz (1997). "Neutralization potential of overburden samples containing siderite." Journal of Environmental Quality 26(3): 673-681.
Skousen, J., A. Rose, G. Geidel, J. Foreman, R. Evans, and W. Hellier. (1998). "Handbook of Technologies for Avoidance and Remediation of Acid Mine Drainage Acid - Technology Initiative (ADTI)." From http:
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Marc Beauchamp: Redding's 'Taj Mahal' quietly turns 10


Holy war looming over Iron Mountain



OTIS v . PARKER, 187 U.S. 606 (1903) 23 S.Ct. 168 OTIS v . PARKER. ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA. No. 4. Argued December 11, 12, 1902. Decided January 5, 1903. The provision in article IV , section 26 of the constitution of California... held semper ubique et ab omnibus... not to have been justified by the circumstances locally existing in California at the time when it was passed, it is shown by its adoption to have expressed a deep-seated conviction on the part of the people concerned as to what that policy required. Such a deep-seated conviction is entitled to great respect. If the State thinks that an admitted evil cannot be prevented except by prohibiting a calling or transaction not in itself necessarily objectionable, the courts cannot interfere, unless, in looking at the substance of the matter, they can see that it "is a clear, unmistakable infringement of rights secured by the fundamental law." Booth v. Illinois , 184 U.S. 425 , 429 . ne would have questioned it, and it would be hard to take a distinction solely on the ground of its more permanent form. Inserting the provision in the constitution showed, as we have said, the conviction of the people at large that prohibition was a proper means of stopping the evil. And as was said with regard to a prohibition of option contracts in Booth v. Illinois , 184 U.S. 425 , 431 , we are unwilling not to declare the judgment to have been wholly without foundation. California is a mining State... Mines generally are represented by stocks. Stock is convenient for purposes of speculation, because of the ease with which it is transferred from hand to hand, as well as for other reasons. ... subject to special restrictions was unjust discrimination or the denial of the equal protection of the laws. Judgment affirmed . MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissented.



It is undoubtedly the general rule that a contract made in violation of a statute is void, and no recovery can be had upon it; as in Embrey v. Johnson , 131 U.S. 336 , 348 . That was an action upon a promissory note given in execution of a contract for the purchase of "future delivery" cotton, neither the purchase or delivery of actual cotton being contemplated by the parties, but the settlement in respect to which was to be on the basis of the "difference" between the contract price and the market price of cotton futures, according to the fluctuations in the market. The contract was held to be a wagering contract, and therefore illegal and void.

The party having such a patent has a right to bring suit on it, not only against a manufacturer who infringes, but against dealers and users of the patented article, if he believes the patent is being infringed; and the motive which prompts him to sue is not open to judicial inquiry, because, having a legal right to sue, it is immaterial whether his motives are good or bad, and he is not required to give his reasons for the attempt to assert his legal rights. `The exercise of the legal right cannot be affected by the motive which controls it.' Kiff v. Youmans , 86 N.Y. 329."

As there could be no recovery upon the original agreement without disclosing the fact that it was illegal and one that could not, for that reason, be enforced or made the basis of a judgment, it was held, that attention could not be withdrawn from the illegality of the contract by the device of taking notes for the amount claimed under that contract. So, in Miller v. Ammon , 145 U.S. 421 , 427 . That was an action to recover the value of 1125 gallons of wines sold in Chicago by one who had not obtained a license to sell liquors at all — an ordinance of that city expressly declaring that no person, firm, or corporation should sell or offer for sale "any spirituous or vinous liquors in quantities of one gallon or more at a time, within the city, without having first obtained a license therefor," under a penalty of not less than $50 or more than $200 for each offence. It was held that the action could not be maintained, because "an act done in disobedience to the law creates no right of action which a court of justice will enforce." In that case the sale from which it was attempted to imply the promise of the buyer to pay for what he received, was itself expressly forbidden by law under a penalty. The action there was upon the sale, and there was a direct connection between it and the purchase of the wines. So, again, in McMullen v. Hoffman , 174 U.S. 639 , 654 , after an extended review of the cases, American and English, the court said: "The authorities from the earliest time to the present unanimously held that no court will lend its assistance in any way toward carrying out the terms of an illegal contract."

What may be regarded as a denial of the equal protection of the laws is a question not always easily determined, as the decisions of this court and of the highest courts of the States will show. It is sometimes difficult to show that a state enactment, having its source in a power not controverted, infringes rights protected by the National Constitution. No rule can be formulated that will cover every case. But upon this general question we have said that the guarantee of the equal protection of the laws means "that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and in like circumstances." Missouri v. Lewis , 101 U.S. 22 , 31 . We have also said: "The Fourteenth Amendment, in declaring that no State `shall deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,' undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and theenforcement of contracts; that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offences." Barbier v. Connolly , 113 U.S. 27 , 31 . This language was cited with approval in Yick Wo v. Hopkins , 118 U.S. 356 , 369 , in which it was also said that "the equal protection of the laws is a pledge of the protection of equal laws." In Hayes v. Missouri , 120 U.S. 68 , 71 , we said that the Fourteenth Amendment required that all persons subject to legislation limited as to the objects to which it is directed, or by the territory within which it is to operate, "shall be treated alike, under like circumstances and considerations, both in the privileges conferred, and in the limitations imposed." "Due process of law and the equal protection of the laws," this court has said, "are secured, if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government." Duncan v. Missouri , 152 U.S. 377 , 382 .

Many other cases in this court are to the like effect.


Section 2 of the Act forbade monopoly . In Section 2 cases, the court has, again on its own initiative, drawn a distinction between coercive and innocent monopoly. The act is not meant to punish businesses that come to dominate their market passively or on their own merit, only those that intentionally dominate the market through misconduct, which generally consists of conspiratorial conduct of the kind forbidden by Section 1 of the Sherman Act, or Section 3 of the Clayton Act.



The trillion-dollar fraud

Why is the Fed so opposed to being audited, and what does it have to hide?

AIG Legal Team Studying CDOs, AIG eyes action on Goldman


NEW YORK—American International Group Inc.'s legal staff is studying complex bond deals the company insured, and would take action if the deals harmed AIG, Chief Executive Robert Benmosche said at the company's annual meeting.

"We are looking at all activities from that period," Mr. Benmosche said. "To the extent we find something wrong that harmed AIG inappropriately, our legal staff will take appropriate action."

Mr. Benmosche made his remarks in response to a question about Goldman Sachs Group Inc., which is facing ...

AIG Cover-Up: SIGTARP Barofsky Hints At Criminal Charges Against The New York Fed

Barofsky says the question of whether the New York Fed engaged in a coverup will result in some sort of action.

“We're either going to have criminal or civil charges against individuals or we're going to have a report,” Barofsky says. “This is too important for us not to share our findings.”

He won't say whether the investigation is targeting Geithner personally.

I contacted Barofsky's office yesterday morning to ask about a timeline for charges, and they had no comment.  When I asked if something would happen in 2010, I was told "yes."

How real is the possibility that NY Fed Chairman Stephen Friedman or NY Fed President Tim Geithner will be charged?

It's not out of the question.  Barofsky has a history of fearless prosecution.  He was the target of a kidnapping/assassination attempt by Colombian druglords in 2005 -- detailed in the Bloomberg story.  So if he's got a case against either, he will probably file.  That said, insider trading charges against Friedman would normally be an SEC investigation.  Maybe that's why he said the following to Bloomberg:

“I've been in contact with the SEC,” he told the committee. “We're going to coordinate with them, but we're going to lead the charge. We're going to review these transactions.”

Don't forget that Barofsky has criticized Geithner by name in multiple SIGTARP reports as well as in Congressional testimony regarding his handling of the AIG bailout while at the FRBNY.  So again, it would not shock me to see charges filed. 

The Bloomberg story is highly recommended reading.  It's full of great quotes and anecdotes not mentioned here.   Such as the following:

A Democrat named by a Republican president, Barofsky says missteps by both the George W. Bush and Barack Obama administrations are to blame for TARP's failures.

“There's a reason there are Tea Partiers out there, and when you look at it, anger at the bailout is one of the first things they talk about,” says Barofsky, referring to the anti- Obama political movement. “This Treasury Department and the previous Treasury Department bear some of the responsibility for not being straightforward with the American people.”

Barofsky criticized Geithner's predecessor, Paulson, in an October 2009 report, saying Paulson publicly described the initial nine TARP bank recipients as healthy when he knew that at least one of them risked failure.

MAC: Mines and Communities, Up against the Red Shield 2/3/2003

This summer's re-organisation will be an attempt to further "beef up" Rothschild's competency as a cross-border financial wheeler-dealer, a role which had been slipping during the nineties [FT 8-9/1/2000] - though there were highlights along the route.

A major coup of the French arm was to effect a merger between Havas, the French media company, and Compagnie Generale des Eaux. The resulting Vivendi Universal is one of the world's biggest media empires. However, it nearly collapsed in 2002, soon after the merger, [FT 2/3/2003].

Sir Evelyn himself is credited with "growing" the London Bank's capital from a modest 160 million in 1970 to around seven billion pounds today (about enough to give a quid to every child, woman and man on the planet).

Margaret Thatcher loves Evelyn Rothschild (true!)

It was also Evelyn who, in 1983, bought up the brokers Smith Brothers and transformed the company into Smith New Court (New Court in London City having been the Rothschild headquarters for around two hundred years)

Smith New Court (ie Rothshild) played the leading role in effecting Margaret Thatcher's ignominious privatisation programme in the 1980s, - a period when BP, British Airways, British Telecom, British Rail, and all the gas and electricity utilities, were ripped from (at least nominal) public ownership [The Business, February 16- 17 2003], with disastrous consequences for services and people. .

In 1984, Rothschild financed Rio Tinto's bid to take control of the Thatcher government's oil "privatisation flagship", Enterprise Oil, (nearly confounding her plan to offer it to the great British public),. The audacious gambit came to nought [see "Plunder!" Partizans and Cafca, London and Christchurch, 1991, page 159]

Striving to stay relevant

The new Anglo-French partnership is a strategy born partly of necessity as the Rothschild clan has experienced a number of personal misfortunes over the past decade. The heir apparent to the London Bank committed suicide in 1996; then Sir Evelyn's cousin, Jacob (now Lord Rothschild) - after trying to effect a merger with the family's chief rival, SG Warburg - took off on his own to form J Rothschild Holdings. Another prospective candidate politely declined Sir Evelyn's offer, instead joining Cazenove, a prominent London-based private bank.

Despite its impressive capital base, Rothschild 's currently available finance (liquidity) is only US$1.3 billion - a pittance compared (say) with Credit Suisse First Boston's US$295 billion, or the US$49 billion with which Goldman Sachs can play around. How can the Rothschilds begin to challenge the commanding position of what the energetic Baron David de Rothshild (he looks 45 but is actually 72) calls "powerhouse firms"?'

What they offer

Essentially the Rothshilds offer the benefits of hands-on personal service, grouping their clients by industry [The Business op cit], rather than country; and gathering valuable intelligence so as to advise on mergers and acquisition in each sector. They engender a personal relationship with their clients, assuring them of courtesy, confidentiality and consistency. The secrets - where there are any - are safely locked up in Switzerland. While much larger investment banks have lately been rocked by scandal (think of Merrill Lynch, Morgan Stanley, Citigroup) the Rothschild boat blissfully sails on.

MAY 12, 2010 -Board Panel at AIG Hires Rothschild


A special board committee of American International Group Inc. recently hired its own financial adviser, the latest sign that the insurance giant is readying plans to repay still-massive debts owed U.S. taxpayers.

The four-member committee, which includes AIG directors with experience in restructuring and workout situations, has engaged investment-banking firm Rothschild as its independent adviser, a person familiar with the matter said. A Rothschild spokesman couldn't immediately be reached for comment.

Prosecutor in Virginia Steps It Up on Finance Cases


WASHINGTON—With Wall Street on its doorstep, the U.S. attorney's office in Manhattan has long been associated with the nation's highest-profile securities-fraud cases. Now others closer to Washington are looking to give that office a run for its money.

Neil MacBride, U.S. attorney for the Eastern District of Virginia, is assembling a new, investigative task force of federal, state and local entities to crack down on financial crime and securities fraud. He has hired several new prosecutors to focus on white-collar crime—and is targeting high-profile cases.

The Act of 1487 (3 Hen. VII.) created a court composed of seven persons, the Chancellor, the Treasurer, the Keeper of the Privy Seal, or any two of them, with a bishop, a temporal lord and the two chief justices, or in their absence two other justices. It was to deal with cases of "unlawful maintainance, giving of licences, signs and tokens, great riots, unlawful assemblies"; in short with all offences against the law which were too serious to be dealt with by the ordinary courts. The jurisdiction thus entrusted to this committee of the council was not supplementary, therefore, like that granted in 1453, but it superseded the ordinary courts of law in cases where these were too weak to act. The act simply supplied machinery for the exercise, under special circumstances, of that extraordinary penal jurisdiction which the council had never ceased to possess. By an act of 1529 an eighth member, the President of the Council, was added to the Star Chamber, the jurisdiction of which was at the same time confirmed. At this time the court performed a very necessary and valuable work in punishing powerful offenders who could not be reached by the ordinary courts of law. It was found very useful by Cardinal Wolsey , and a little later Sir Thomas Smith says its object was "to bridle such stout noblemen or gentlemen who would offer wrong by force to any manner of men, and cannot be content to demand or defend the right by order of the law."

EPA Ordered to Consult with NMFS Regarding Water Quality Exemptions for Salmon Farms

On April 28, 2010, the U.S. District Court for the Western District of Washington granted a motion for summary judgment filed by  Wild Fish Conservancy , holding that EPA and NMFS failed to use the best scientific and commercial data available in their informal consultation regarding EPA's approval of water-quality standards that exempted salmon farms from various state water quality standards.  Wild Fish Conservancy v. U.S.E.P.A. , No. C08-0156, 2010 WL 1734850 (W.D. Wash April 28, 2010).

Walden opposes 'federal takeover of water'

WASHINGTON - Rep. Greg Walden (R-Ore.) and the Congressional Western Caucus have joined in opposition to legislation introduced by Rep. James Oberstar (D-Minn.) that seeks to provide the federal government with jurisdictional authority over all water across the entire United States.

The legislation, titled "America's Commitment to Clean Water Act," seeks to expand the federal government's control of U.S. water under the Clean Water Act by removing the existing requirement that regulated waterways be "navigable," Walden's office said in a news release Under the proposed legislation, all inland waters, on both public and private lands, would be controlled and regulated by the federal government.

"Oregon's farmers and ranchers depend on the land and the water for their livelihood," Walden said. "There's already enough concern in certain areas of our state that there may not be enough water to get through the growing season. And now this bill proposes an unprecedented federal government takeover of water in Oregon, from ponds to irrigation ditches that would put the federal government in charge."

"I have long supported just the opposite: a ground-up effort to land management and regulation. This is top-down Washington, D.C.-driven federal takeover of our water rights," Walden said.

"It amounts to an unprecedented attack on state water rights and water law by the federal government. We already have too many difficulties dealing with federal agencies on water issues in our part of the world. The last thing we need is to cede more jurisdiction to the feds. Oregon has strong water and environmental laws and Oregonians have a greater ability to work positively to resolve issues with state regulators than they'll ever have with federal agencies."

EPA proposes sweeping rule for nonconstruction-grade coal ash

May 6, 2010 Sources: Environmental Protection Agency , Washington, D.C.; CP staff

EPA officials are set to open a 90-day public comment period for proposed rules that address disposal and management of coal-fired power plants' ash and residue, while exempting higher-grade, lower-carbon fly ash suited to concrete mix designs, cement mill feed, and wallboard production.  

“EPA supports the legitimate beneficial use of coal combustion residuals,” affirms Office of Solid Waste and Emergency Response Assistant Administrator Mathy Stanislaus. “Environmentally sound, beneficial uses of ash conserve resources , reduce greenhouse gas emissions, lessen the need for waste disposal units, and provide significant domestic economic benefits. This proposal will clearly differentiate these uses from coal ash disposal and assure that safe beneficial uses are not restricted and, in fact, are encouraged.”

Residuals the agency's proposed rules target are power plant coal-combustion by-products, disposed of in liquid form at large surface impoundments and in solid form at landfills. They contain contaminants like mercury, cadmium and arsenic, which are associated with cancer and various other serious health effects. EPA's risk assessment and damage cases demonstrate that, lacking proper protections, these contaminants can leach into groundwater and migrate to drinking water sources, posing significant health public concerns.

The agency is calling for protective controls, such as liners and groundwater monitoring, at coal ash impoundments and landfills. Existing surface impoundments also will require liners, with strong incentives to shutter and transition to safer landfills that store coal ash in dry form. The proposed regulations will ensure stronger oversight of impoundments' structural integrity to prevent accidents like the December 2008 failure of a TVA facility in Kingston, Tenn. There, a massive spill from a failed impoundment unleashed millions of cubic yards of residue to surrounding land and rivers.

EPA clean air rule challeged by mining company

Call for Justice at Superfund Sites

This year marks the 30 th Anniversary of the Federal Superfund toxic site cleanup program.  It also is the beginning of a new administration at the Environmental Protection Agency (EPA) with EPA Administrator Lisa Jackson committing to address environmental injustices.  CHEJ is working with grassroots groups across the country to urge the federal agency to correct environmental injustices at toxic sites that occurred under the Bush-era EPA. 

Over 110 organizations have sent letters to EPA asking them to take action. EPA did not meet the intent of the Federal Superfund law which prioritizes permanent cleanup remedies and treatment technologies, and instead selected cheap, unsafe “cleanup” methods.

Senate Report: Bush Administration Let Osama Escape

Washington - As President Obama vows to “finish the job” in Afghanistan by sending more troops, the Senate Foreign Relations Committee has completed a detailed look back at a crucial failure early in the battle against Al Qaeda: the escape of Osama bin Laden from American forces in the Afghan mountains of Tora Bora in December 2001.

The report says Osama bin Laden was unquestionably within reach of U.S. troops in the mountains of Tora Bora, when American military leaders decided not to pursue him with massive force.

The report says the U.S. had the means to mount a rapid assault with several thousands troops at least. Instead, fewer than 100 U.S. commandos, working with Afghan militias and backed by air strikes tried to hunt down the al-Qaida leader.

It says its review "removes any lingering doubts and makes it clear that Osama bin Laden was within our grasp at Tora Bora."

The report, ordered by Senate Foreign Relations Committee Chairman John Kerry, says the actions in Tora Bora "opened the door for his escape to Pakistan" and allowed him to become a "potent symbolic figure" for extremists worldwide.

It says Bin Laden's escape has laid the foundation for today's reinvigorated Afghan insurgency and inflamed the internal strife now endangering Pakistan.

Effect of Salmon Farms Under Review By Christopher Dunagan May 3, 2010

Federal agencies need to take a new look at the effects of salmon farms on wild chinook salmon and killer whales — both listed as “threatened” under the Endangered Species Act, according to a federal judge.

U.S. District Judge John Coughenour ruled last week that the Environmental Protection Agency failed to consider recovery plans for Puget Sound chinook and killer whales when updating sediment standards under the Clean Water Act.

Technically, Washington state writes the standards under which permits are issued for various on-the-water activities. But the EPA must approve the state standards, which triggers actions under the Endangered Species Act. For example, the law requires the EPA to consult with other agencies, including the National Marine Fisheries Service. The law also requires the agencies to use “best available science” in their decisions.

EPA Signs Agreement for State Voluntary Cleanup Program
Posted Friday, April 30, 2010

The federal Environmental Protection Agency has signed a memorandum of agreement with the West Virginia Department of Environmental Protection for the state's voluntary, risk-based cleanup program, called the Voluntary Remediation Program, or VRP.

Because it offers liability protection against enforcement actions under the federal Superfund program, the agreement is significant for those having interests in real property that is contaminated or is perceived to be contaminated. The agreement also is significant because it documents EPA's recognition and approval of West Virginia's program and the DEP's capabilities and authorities for addressing cleanups under the state program.

Superfund is the federal program for solid waste emergency and long-term removal and remedial activities.

AIG Approves $380 Million of Awards for Managers in 2010 Plan

By Hugh Son

May 11 (Bloomberg) -- American International Group Inc. approved a plan to award executives $380 million, based on their performance, as part of an overhaul of pay practices following the insurer's taxpayer-funded bailout.

The payouts are earmarked for as many as 3,000 managers in a long-term incentive plan, for an average of more than $125,000 per recipient, said two people with knowledge of the program. Board members approved the 2010 program in March, New York-based AIG said in a filing last week. That is the same month employees got the final payments from a previous retention bonus program.

Published on Tuesday, May 11, 2010 by Reuters

Senate OKs Fed Audit as Part of Bank Overhaul

by Kevin Drawbaugh and Andy Sullivan

WASHINGTON - The Senate challenged the Federal Reserve's tradition of secrecy on Tuesday by unanimously approving a measure to expose the details of the central bank's emergency lending during the financial crisis.

As it sought to stabilize the banking sector and economies worldwide, the Fed pumped hundreds of billions of dollars into markets, expanding its balance sheet to more than $2 trillion.

Under a measure approved by a vote of 96 to 0, the investigative arm of Congress would conduct a one-time audit of the central bank's emergency lending since December 2007.

In addition, the Fed would be required to publicly disclose by December 1 of this year detailed information about which financial institutions it assisted with its lending.

The measure, offered by independent Senator Bernie Sanders, was approved as an amendment to a sweeping Wall Street reform bill expected to win final Senate approval within weeks. It is a high priority for President Barack Obama and Democrats.

Lawmakers are undertaking a major rewrite of financial regulation to try to make banks and capital markets less prone to periodic crises, which academics say have become more common since a wave of deregulation took hold in the 1980s.

The future profitability, risk capacity and growth potential of financial firms hang in the balance.

The Federal Reserve's role in the run-up and the response to the crisis has come under particular scrutiny, with some lawmakers members of Congress accusing the Fed of regulatory lapses and some questioning its assertive rescue actions.

On April 14, the House Science Committee held the second of three subcommittee markups on the reauthorization of the 2007 America COMPETES Act. 

The Research and Science Education Subcommittee approved by voice vote a bill that would authorize $47.5 billion for research and development programs at the National Science Foundation (NSF) over the next five years. Of the agency's research budget, at least 5 percent would go toward high-risk, high-reward basic research proposals.

ILFC founder Hazy plans comeback with new venture

(Reuters) - The dethroned godfather of aircraft lease finance is planning a comeback.

Steven Udvar-Hazy, the former chief of American International Group Inc's ( AIG.N ) International Lease Finance Corp, is raising several billion dollars for a new venture, sources familiar with the situation said.

Udvar-Hazy is looking for equity commitments of about $1 billion and debt financing of $1.5 billion to $2 billion for the venture, according to these sources, who declined to be named because talks are not public.

Udvar-Hazy's move comes as competitors owned by large companies like AIG, CIT Group Inc ( CIT.N ) and Royal Bank of Scotland Group Plc ( RBS.L ) are dealing with problems faced by their parents due to the financial crisis.

Their problems also mean lessors who are in the market to buy planes can get better deals from manufacturers like EADS ( EAD.PA ) unit Airbus and Boeing Co ( BA.N ).

"Anyone who steps up to the plate wanting to order planes is going to have an advantage," said Richard Aboulafia, an analyst with the Teal Group. "It's a great time to buy planes."

Moreover, having a large portfolio of legacy aircraft is becoming a drag, as older planes are fast losing value. The devaluation of older planes also creates an opportunity to buy on the cheap.

ILFC recently sold 53 jets to Macquarie Group Ltd ( MQG.AX ) at a discount to their book value.

"The logic of this business has been turned on its head, where size is a disadvantage because you have a lot of older planes that are losing their value faster," Aboulafia said. "Affiliation with a large financial institution is a disadvantage too. The rules have totally changed, and he (Udvar-Hazy) is doing his best to adapt to the new reality."

Udvar-Hazy declined to comment, citing a quiet period under U.S. Securities and Exchange Commission rules.


Udvar-Hazy started his plane leasing business in 1973 with his college roommate and only $500,000 in the bank. The benefits of leasing rather than buying planes appealed to start-ups and traditional airlines alike, and he built up and sold the company to AIG in 1990 for about $1.3 billion.

The insurer's stellar credit ratings over the years that followed kept ILFC's cost of capital low, allowing Udvar-Hazy to turn the Los Angeles-based company into one of the largest aircraft lessors, with a portfolio of more than 1,000 aircraft.

Barofsky Says Criminal Charges Possible in Alleged AIG Coverup

Barofsky's most recent broadside came on April 20, when a SIGTARP report labeled a housing-loan modification program funded with $50 billion of TARP money as ineffectual.

230,000 Homeowners

Treasury spokesman Andrew Williams counters that the program has resulted in modifications for more than 230,000 homeowners.

The TARP watchdog has also criticized Treasury Secretary Timothy F. Geithner in reports and in congressional testimony for his handling of the process by which insurance giant American International Group Inc. was saved from insolvency in 2008, when Geithner was head of the Federal Reserve Bank of New York.

The secrecy that enveloped the deal was unwarranted, Barofsky says, adding that his probe of an alleged New York Fed coverup in the AIG case could result in criminal or civil charges.

In Senate Finance Committee testimony on April 20, Barofsky said SIGTARP would investigate seven AIG-linked mortgage-related securities similar to Abacus 2007-AC1, the instrument underwritten by Goldman Sachs Group Inc. that is at the center of a U.S. Securities and Exchange Commission lawsuit filed against the investment bank on April 16.

Leading the Charge

"I've been in contact with the SEC," he told the committee. "We're going to coordinate with them, but we're going to lead the charge. We're going to review these transactions."

Barofsky and Geithner's offices have gone toe-to-toe over AIG, alleged lax oversight of TARP funds and even over the question of whom Barofsky reports to.

Barofsky, a former federal prosecutor who was once the target of a kidnapping plot by Colombian drug traffickers, says he's also looking into possible insider trading connected to TARP. He says his agency would want to know if bankers bought stock in their companies before it was made public that their institutions would get TARP money, for example.

"There was a time when, if you got that word the stock price would go up, and if you were to trade on that information prior to the public announcement, that would be classic insider trading," Barofsky says.

'Tea Partiers'

A Democrat named by a Republican president, Barofsky says missteps by both the George W. Bush and Barack Obama administrations are to blame for TARP's failures.

"There's a reason there are Tea Partiers out there, and when you look at it, anger at the bailout is one of the first things they talk about," says Barofsky, referring to the anti- Obama political movement. "This Treasury Department and the previous Treasury Department bear some of the responsibility for not being straightforward with the American people."

Barofsky criticized Geithner's predecessor, Paulson, in an October 2009 report, saying Paulson publicly described the initial nine TARP bank recipients as healthy when he knew that at least one of them risked failure.

In a letter responding to Barofsky, Assistant Treasury Secretary Herbert Allison wrote: "Any review of such announcements must be considered in light of the unprecedented circumstances in which they were made."

Geithner and Paulson both declined to comment for this story.

GAO says AIG insurance operations showing signs of recovery
Jacob Geiger

The U.S. Government Accountability Office said in a report that premiums written in AIG's P&C businesses appeared to stabilize during 2009, especially late in the year.

The U.S. Government Accountability Office said in an April 27 report that American International Group Inc.'s financial condition has stayed "relatively stable" during the past six months.

The company's various insurance operations "are showing signs of recovery, but federal assistance has been a critical factor," according to the report. For the first time since the second quarter of 2008, AIG's life and retirement policyholder contracts have seen deposits exceed withdrawals.

In AIG's P&C companies, premiums written volume appears to be stabilizing, the GAO said. During the third quarter of 2009, these companies' commercial insurance premiums written were more than $5 billion for the first time since the third quarter of 2008, when they wrote $5.63 billion in direct premiums.

The GAO found that AIG's financial products unit has continued to unwind credit default swap positions, but progress in reducing multisector CDOs has been slow.

Despite the progress, the GAO warned that the government's ability to recoup its full investment will still be determined by AIG's long-term health, its success in selling certain units and market factors such as the performance of the insurance sector. The GAO found that AIG had $129.12 billion in outstanding assistance from the federal government.
May 4, 2010

AIG Shareholder Meeting: Live Blog Preview

By Lauren Tara LaCapra 05/11/10

NEW YORK ( TheStreet ) -- There's sure to be a stir on Maiden Lane Wednesday morning as American International Group ( AIG ) holds its annual shareholder meeting.

Though AIG has made great strides toward restructuring its operations and starting to repay bailout funds, the insurance giant still embodies taxpayer scorn. AIG management ought to prepare for hostile questions and insult-hurling, if last week's meeting of Goldman Sachs ( GS ) investors is any indication. Shareholders had little sympathy for CEO Lloyd Blankfein and his managerial counterparts, although their votes didn't speak to the apparent anger and dismay.

Nonetheless, AIG has a prepared agenda for the event. Among the issues shareholders will vote upon are board composition and compensation at both the executive and employee levels. will be covering the event live from AIG headquarters in Lower Manhattan, starting at 10 a.m. EDT.

Recent additions up for election are CEO Robert Benmosche, who is also president of the board, as well as Harvey Golub, Laurette Koellner, Christopher Lynch, Arthur Martinez, Robert Miller, Doug Steenland, and Henry Miller, all of whom joined the board or were nominated within the last year. Morris Offit, Suzanne Nora Johnson, and George Miles are also up for re-election, having joined AIG in 2008 or earlier. In addition, the government helped selected Donald Layton and Ronald Rittenmeyer as special director nominees. Taxpayers still hold an 80% stake in the firm through a $70 billion preferred stock investment .

Shareholders will also vote on a resolution that would give them a say on executive pay -- albeit nonbinding -- as well as AIG's 2010 stock incentive plan for employees. Bonuses became a touchstone issue in the great Wall Street vs. Main Street debate. AIG's compensation plans must now be approved by a special "czar" designated by the Obama administration to right-size the pay at bailed-out financial firms.

Anastasia Kelly, a top lawyer at AIG, recently resigned because she found her mandated pay cap to be insufficient. Kelly's departure came months after another high-profile kerfuffle involving employees from AIG's financial-products unit. The unit led to the firm's collapse, but its employees were needed for the massive derivatives unwind the firm has been undergoing since September 2008. After word got out about their post-bailout bonuses, citizens began protesting and even sending death threats to some employees

U.S. Sen. James Inhofe will keynote the Fourth International Conference on Climate Change next month in Chicago.

The Oklahoma Republican and members of his family built an igloo near the U.S. Capitol in February as Washington lay paralyzed under stupendous snowfall and cold weather, ridiculing assertions by some climate scientists that Earth faces a crisis from warming temperatures.

Inhofe, for years the scourge of climate change alarmists, will join more than 70 of the world's elite scientists and economists in a three-day climate conference built around the theme "Reconsidering the Science and Economics."

EPA staff forced to ignore science May 3rd, 2010

*EPA Staffers Were Forced to Ignore Science, Investigation Finds* *By Sheila Kaplan, Investigative Fund at The Nation Institute Posted on April 30, 2010, Printed on May 2, 2010 *** Environmental Protection Agency staffers have been forced to ignore relevant science, have lacked key monitoring data on human health and environmental impacts, and have worked without crucial information needed to protect the public, according to the preliminary findings of a scientific advisory board.

The Committee on Science Integration for Decision Making is still working on its investigation, but has quietly posted draft summaries on the agency's Web site of 73 interviews with 450 EPA employees — an unusual bottom-up examination that could bring sweeping changes to the 40-year-old federal agency. Some staffers traced the problems in the agency to the Bush administration, while others said the obstacles are longstanding and continue to this day.

EPA Said to Have Suppressed, Misclassified Records

May 5th, 2010 by Steven Aftergood

Officials of the Environmental Protection Agency intentionally stopped keeping records concerning potentially hazardous landfills in New Mexico in order to circumvent the disclosure requirements of the Freedom of Information Act.  They also marked unclassified records as “confidential” in order to restrict their dissemination, a report (pdf) from the EPA Inspector General found.

One EPA official told the IG that “her section discontinued record keeping in favor of undocumented phone calls and conversations … to prevent the production of documents…. [She] informed us that her section had discontinued record keeping… because of … requests for information under the Freedom of Information Act” that had been filed by Citizens Action New Mexico, a public interest group investigating potential contamination of Albuquerque's groundwater.

The Inspector General report said that failure to document agency activities is a violation of EPA policy and federal law, which require the preparation and preservation of “adequate and proper” records of agency functions, decisions and transactions.

EPA implements new restrictions on pesticides to protect salmon

By Danielle Koagel May 5, 2010

Pacific salmon will no longer be swimming in harmful chemicals due to new EPA restrictions barring the use of several pesticides near salmon habitats.

The Environmental Protection Agency has given the producers of three pesticides two weeks to implement new restrictions on their use. The pesticides under scrutiny have been found by federal biologists to interfere with salmon's sense of smell, making it harder for them to find food, avoid predators and return to native waters to spawn. They are used on farms where they find their way into rivers and streams, but studies suggest their use has the potential to completely destroy valuable salmon habitat.

Environmental groups sued the EPA to implement restrictions after a 2008 National Oceanic Atmospheric Administration National Marine Fisheries Service analysis concluded that the effects of diazinon, malathion and chlorpyrifos pesticides threaten as many as 27 species of Pacific salmon and steelhead.

“For nearly a decade now, we have been urging and prompting the government to take appropriate steps to protect salmon and steelhead," said Aimee Code, of the Northwest Coalition Against Pesticides, to Business Week. "Pretty much every step in this confrontation we had to file a lawsuit. Now we are seeing EPA taking a step to finally get the long-term protections prescribed by (NOAA Fisheries) on the ground."

The new restrictions will require a buffer zone of up to 1,000 feet between pesticide application areas and waterways that connect to salmon habitats. The EPA has said it will take corrective action if pesticide manufacturers do not implement the new restrictions.

Internal Audit Suggests EPA Complicit in Environmental Racism

by Catherine Komp

Environmentalists, civil rights advocates and even federal auditors say the US government is ignoring its duty to protect low-income people and people of color from harmful pollution in their communities.

Last month, the Environmental Protection Agency's Office of the Inspector General found the Agency does not know if its policies and programs are negatively affecting poor people because it has not conducted proper "environmental justice" reviews.

"The term of ‘environmental justice' is kind of a cleaned-up term," said Felicia Eaves, campaign organizer with the grassroots group Women's Voices for the Earth. "[The term] actually started out as ‘environmental racism.'"

Tempers Flare at Environmental Justice Conference
Fair Use Statement Source: ENS

Tempers Flare at Environmental Justice Conference, By Brian Hansen

ARLINGTON, Virginia, December 12, 2000 (ENS) - Members of a federal government advisory panel today lambasted President Bill Clinton, Vice President Al Gore and the U.S. Environmental Protection Agency for failing to aggressively combat the scourge of "environmental racism" that they maintain is afflicting many poor communities and communities of color.

District Court Finds Non-Settling PRP Can Intervene in CERCLA Consent Decree
On January 15, 2010, the U.S. District Court for the Northern District of West Virginia held that a PRP’s right to contribution under CERCLA is a significantly protectable interest permitting a non-settling PRP to intervene as of right to challenge a
consent decree between the federal government and a settling PRP.
United States v. Exxon Mobil Corp., No. 08-124

District Court Allows PRP to Amend Claim 2 Years after Atlantic Research

On January 20, 2010, the United States District Court for the Southern District of Illinois granted a CERCLA PRP’s motion for leave to file an amended pleading seeking cost recovery under CERCLA § 107(a),

Second Circuit Affirms CERCLA Veil-Piercing to Impose Liability on Former Parent
In an unpublished opinion issued on December 10, 2009, the U.S. Court of Appeals for the Second Circuit affirmed a plaintiff corporation’s recovery of CERCLA response costs from a company whose predecessor had once been the plaintiff’s parent. Rochester Gas and Elec. Corp. v. GPU, Inc., No. 09-0482-cv, 2009 WL 4673916 (2d Cir. Dec. 10, 2009).

Tenth Circuit Upholds Remand of Class Action Involving “CERCLA Quality Cleanup”
On September 4, 2009, the U.S. Court of Appeals for the Tenth Circuit affirmed a lower court’s remand to state court of a state law class action involving injuries allegedly arising out of contamination at a state-remediated site, holding that neither the Class Action Fairness Act (“CAFA”) nor CERCLA provided a basis for federal jurisdiction. Coffey v. Freeport McMoran Copper & Gold, 2009 U.S. App. LEXIS 19996 (10th Cir. Sep. 4, 2009).

Natural Resource Damage Claims Insufficient for Federal

On August 21, 2009, the U.S. District Court for the District of the Virgin Islands held that a territory’s common law claims for natural recourse damages against manufacturers of dry cleaning chemicals for a site on the National Priorities List are not subject to federal jurisdiction. Mathes v. Vulcan Materials Co., 2009 U.S. Dist. LEXIS 74736 (D.V.I. Aug. 21, 2009).

Destruction of Samples Leads to Preclusion of Contamination Evidence
On May 21, 2009, the U.S. District Court for the District of Connecticut held that when a consulting firm hired by a CERCLA plaintiff to take soil samples did not preserve the samples or the analytical data, and the property was remediated before other parties could sample, plaintiff is precluded from offering any evidence based on the destroyed samples. Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist. LEXIS 43588 (D. Conn. May 21, 2009).

RCRA Default Judgment Ordered as Sanction for Discovery Violations
On June 5, 2009, the U.S. District Court for the Southern District of Indiana, in response to what it determined were extraordinary discovery abuses by the defendant in a RCRA citizen suit case, entered a default judgment against the
defendant. 1100 West, L.L.C. v. Red Spot Paint & Varnish Co., 2009 U.S. Dist LEXIS 47439 (S.D. Ind. Jun. 5, 2009).

Pennsylvania: Third Circuit Says Future Cleanup Cost Request is Too Speculative
On May 5, 2009, a federal appeals court applying Pennsylvania law, held that a prevailing party in a hazardous waste lawsuit is not entitled to a monetary award for future cleanup costs that environmental regulators have not required or found to be
necessary. F.P. Woll & Co. v. Fifth & Mitchell Street Corp., 2009 U.S. App. LEXIS 9754 (3d Cir. May 5, 2009)

PRP Attempts to Depose, Claim Against U.S. EPA Officials for Response Strategy
In two of what may begin a series of rulings, the U.S. District Court for the District of New Jersey held, on January 28, 2009, that a defendant to a cost recovery action could not depose a former U.S. EPA Administrator or Regional Administrator but could depose a U.S. EPA On-Scene Coordinator regarding these individuals’ alleged wrongdoing relating to a response action at a site where the defendant is a PRP. United States v. Sensient Colors, Inc., 2009 U.S. Dist LEXIS 6964 (D.N.J. Jan. 28, 2009)

Congressmen Ask EPA To Rethink Water Quality Rule

CHARLESTON, W.Va. (AP) ? Three coal-state congressmen are asking the Environmental Protection Agency to rethink tight new water quality standards for Appalachian surface coal mining permits.

West Virginia Democrats Nick Rahall and Alan Mollohan and Virginia Democrat Rick Boucher made the request Thursday in a letter to EPA Administrator Lisa Jackson.

EPA set strict limits on salt levels in waterways downstream from surface mines April 1. The agency argues that burying streams with mine wastes increases salt levels in waterways downstream, hurting fish and other aquatic life.

The congressmen say the EPA acted without considering the policy's implications and treats Appalachia differently under federal law than other parts of the country.

Lawsuits rip feds' air-cleanup efforts in Valley

Posted Thursday, May. 06, 2010

By Mark Grossi / The Fresno Bee

Activists filed three lawsuits Thursday against the U.S. Environmental Protection Agency, claiming federal officials are neglecting cleanup plans for the San Joaquin Valley.

Two suits were filed in the 9th U.S. Circuit Court of Appeals in San Francisco, challenging EPA's approval of the Valley's cleanup plan for the one-hour ozone standard. Such appeals of approved air plans go directly to the appellate court.

Activists say officials failed to analyze the vehicle rules accounting for the biggest ozone reductions. Now the Valley, one of the nation's most-polluted air basins, is on the verge of missing the Nov. 15 cleanup deadline for the standard.

"We are suing EPA today because EPA has approved a plan that has failed," said Salvador Partida of the Committee for a Better Arvin, representing a city that frequently violates the ozone threshold. "The Valley will not meet the 2010 deadline."

The third activist lawsuit asks U.S. District Court in Oakland to force EPA to make a decision on the Valley's plan to stop violations of the eight-hour or daylong ozone standard. Activists say EPA should have accepted or rejected the plan a year ago.

Congressmen to EPA: New Guidance for Permits is 'Wrong Approach'

CHARLESTON, W.Va. , May 7 /PRNewswire-USNewswire/ -- U.S. Representatives Nick J. Rahall (D-WV), Alan B. Mollohan (D-WV) and Rick Boucher (D-VA) have called upon  the U.S. Environmental Protection Agency (EPA) to withdraw the Guidance it issued on April 1 regarding coal mining permits in Appalachia.  The lawmakers expressed their concern with EPA's use of a conductivity standard and the inequitable treatment of Appalachian coal mining in the Guidance in a May 5 letter to EPA Administrator Lisa Jackson .  

"We applaud the members of Congress for publicly identifying the same faults with the EPA's new Guidance on water quality standards that most residents of the affected states see," said Bryan Brown , West Virginia state coordinator for the FACES of Coal campaign. "There are serious scientific doubts about using conductivity as a water quality standard but beyond that, only enforcing those standards in 6 states of a 50 state country is prejudicial, economically devastating and just plain wrong."

CERCLA/Bankruptcy Claims Issue M. Murray

“Solvent potential responsible parties (PRP) and PRP working groups left holding the bag with inflated shares at hazardous waste sites had reason to rejoice after the Supreme Court resurrected CERCLA Section 107 direct claims as a remedy for in­nocent and liable private parties alike,” said Murray, because direct claims are not subject to the Bankruptcy Code's bar on contingent contribution claims of entities co-liable with the Debtor to a creditor. “The elation was short-lived, however, as a result of the recent Second Circuit decision in  Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc ., and the Third Circuit decision in Agere Systems, Inc. v. Advanced Environmental Tech­nology Corp ., each of which has largely and once again eliminated direct claims for PRPs thought to have been acknowledged — indeed supported — by the Supreme Court in  Atlantic Research .”

A well known quote from Josiah Stamp (He was a director of the Bank of England and chairman of the London, Midland and Scottish Railway) (often referred to as Stamp's Law) is:

"The government are very keen on amassing statistics. They collect them, add them, raise them to the nth power, take the cube root and prepare wonderful diagrams. But you must never forget that every one of these figures comes in the first instance from the chowty dar (village watchman), who just puts down what he damn pleases." (Stamp recounting a story from Harold Cox who quotes an anonymous English judge).

Another quote often attributed to Stamp is:

"Banking was conceived in iniquity and was born in sin. The bankers own the earth. Take it away from them, but leave them the power to create money, and with the flick of the pen they will create enough deposits to buy it back again. However, take away from them the power to create money and all the great fortunes like mine will disappear and they ought to disappear, for this would be a happier and better world to live in. But, if you wish to remain the slaves of bankers and pay the cost of your own slavery, let them continue to create money." (Said to be from an informal talk at the University of Texas in the 1920s, but as yet unverified.)


Superfund at 30 - toxic waste cleanups drag on, May 3, 2010 the Baltimore Sun

Amid the uproar over the massive oil leak in the Gulf of Mexico, the federal government's Superfund hazardous-waste cleanup program marked its 30th birthday last week virtually unnoticed.


Judge warns EPA of contempt in Everglades case April 26th, 2010 by admin google

A federal judge threatened the U.S. Environmental Protection Agency with contempt of court in a ruling Wednesday that accuses the agency of ignoring Clean Water Act requirements in Florida's Everglades.

Gold wrote Wednesday that the EPA and Florida have ignored his previous order.

U.S. District Judge Alan S. Gold ruled in 2008 that the EPA had turned a “blind eye” to Florida's Everglades cleanup efforts, while the state continued to violate its own commitment to restore the vast ecosystem. He ordered the EPA to review water pollution standards and timelines set for cleanup.

The Miccosukee Indians, who live in the Everglades, and Friends of the Everglades sued the EPA over phosphorous pollution in 2004. They claimed the agency was allowing Florida to delay Everglades restoration while failing to meet pollution requirements in the Clean Water Act.

“I express in the strongest possible terms my frustration and disappointment,” Gold wrote.

The state and federal governments been entrenched in a decades-long effort to fix the problem, but have been stymied by funding shortfalls, political bickering and lawsuits.

The phosphorous pollution comes largely from fertilizer runoff from farms and development. The nutrient has long suffocated life in the ecosystem, driving out native species and poisoning the water.

A telephone message left for the EPA was not immediately returned Wednesday. The Florida Department of Environmental Protection was not immediately prepared to comment.

Gold ordered EPA's administrator to appear at an Oct. 7 hearing to report on compliance with his latest ruling.

The state Supreme Court is set to rule soon on whether Florida can move forward with the deal.

Gold also questioned how the state's plan to spend $536 million for 73,000 acres of U.S. Sugar Corp. farmland in the Everglades would help with restoration efforts. The deal has already faced numerous obstacles and has been lambasted by critics as a waste of taxpayer money that will only further delay Everglades restoration.

“No scientific analysis has been conducted to determine if such a purchase, and related postponement of construction projects to finance it, would either further or hinder achievement of the now mandatory phosphorous criteria,” Gold wrote.

Veterans: They Deserve No Less

April 24, 2010 posted by Robert ODowd ·

Veterans disabled by environmental hazards are routinely denied compensation and medical care by the Department of Veterans Affairs.  The latency of onset of disease from exposure to environmental hazards and the government's requirement for medical evidence of service connection results in the denial of benefits to thousands of those harmed.

(WASHINGTON, DC)  – The Department of Veterans Affairs' mantra of “Deny, deny, deny until the die” is familiar to many veterans. It is also a national disgrace to those who served honorably and are now disabled from their service. 

Courtesy: CNN, Camp Lejeune Male Breast Cancer Veteran

Military service incurs many risks that men and women willingly accept to serve their country, and most Americans agree that medical care, disability coverage, survivor benefits and other benefits are necessary when they are harmed. Our government often takes a different view. 

The long-standing practices of the Department of Veterans Affairs is to routinely deny or unnecessarily delay essential benefits for those harmed as a result of their military service.  Whether it's driven by budget concerns or a “way of doing business” passed from one generation of bureaucrats to another, I don't know.  I do know from emails from many veterans and horror stories in the media that this happens more often than not.  

Did Goldman gain AIG insight from Timberwolf?  

(Reuters) - The blow-up of a $1 billion subprime mortgage-linked security called Timberwolf 1 may have provided Goldman Sachs Group with an early clue about trouble to come at insurance giant American International Group. 'HUGE RED FLAGS', a former executive summed up the transaction as "one shitty deal.""They had a huge red flag on deals that were protected by AIG,"

RCRA: federal court allows citizen suit to proceed

A federal judge in Tennessee has ruled that a RCRA citizen suit aimed at cleaning up a state landfill may proceed, rejecting an argument that a state order is an ongoing CERCLA action that may not be challenged.

They're Still Blowing Up Our Mountains...

A month ago, before the nation's concentration was drawn to the tragedies at the High Huge Branch Mine in West Virginia and the oil rig off the Louisiana coast, the EPA issued a blockbuster announcement about a strict new guidance for the permitting of mountaintop removal mines in Appalachia. The announcement left many people – reporters, politicians and the general public alike – confused whether or not the EPA had just place an end to mountaintop removal. The announcement generated headlines ranging from a honestly modest “E.P.A. to Limit Water Pollution From Mining” in the New York Times to “New regulations will place an end to mountaintop mining?” in the Guardian .

Certainly at the press conference EPA Administrator Lisa Jackson used some strong language: “Coal communities must not have to sacrifice their environment or their health or their fiscal future to mountaintop mining. They deserve the full protection of our clean water laws.”

One of the most under-reported elements of the EPA's announcement was that Administrator Jackson specifically mentioned the EPA had worked with Senator Byrd to develop their new guidelines. She would not have said that without explicit approval from Senator Byrd. While Byrd has not explicitly called for an end to mountaintop removal or co-sponsored legislation to do that, his leadership in promoting a more thoughtful and reasonable view on climate and the future of coal in his state represents a sea change from the public statements of statewide elected officials over the past few decades. Rahall and Rockefeller would supply their constituents and their people far better if they followed Byrd's lead.

Is Passing a Law in this Polarized Congress Realistic?

More vital than the enormous number of cosponsors that legislation to stop mountaintop removal enjoys is the fact that the help is bipartisan. At once following the EPA's announcement, Senator Lamar Alexander, Republican of Tennessee, said in a press release :

“The new EPA guidelines are helpful in stopping some inappropriate coal mining in Appalachia but Congress still needs to pass the Cardin-Alexander legislation that would effectively end mountaintop removal mining.”

Alexander, together with Senator Ben Cardin of Maryland , introduced the Appalachia Restoration Act (S. 696) last year, a Senate companion to the Clean Water Protection Act calculated to eliminate mountaintop removal (or at least everlastingly curtail it – we'll see what the final language says after mark-up). That bill got a boost the same week of the EPA announcement when coal-state Senator Sherrod Brown of Ohio announced he would be converted into the 11th co-sponsor of the bill.

Whether the Senate bill can survive the committee mark-up process in a form that Appalachian citizens groups can help remains to be seen, but. The Nashville Tennessean recently published an editorial that gave accent to the concerns many coalfield citizens have about forms of mining that may not be covered by the Senate bill, particularly cross-ridge mining. Cross-ridge is a type of mountaintop removal mining that requires small or no valley fill and is based on the assumption that a mountain can be place back more or less how it was after it's been blown up – kind of like putting Humpty Dumpty back together again .

Simpson says clean water bill threatens states' rights

Submitted by Dan Popkey on Thu, 04/22/2010 - 9:33am.

U.S. Rep. Mike Simpson, R-Idaho, says he will fight H.R. 5088, the America's Commitment to Clean Water Act.

In a news release, Simpson said the bill cedes authority over all U.S. waters to the federal government, including water currently regulated by states, and makes it subject to regulation by the Environmental Protection Agency under the Clean Water Act.

The bill was introduced Wednesday by Rep. James Oberstar, D-Minn., and co-sponsored by Michigan Democrats John Dingell and Vernon Ehlers.

“We in the West know just how valuable water is to our way of life," Simpson said in the release. "By giving the federal government jurisdiction over Idaho's water, this bill could have a devastating impact on our economy, food supply, and the livelihoods of those in rural communities across our state. There is no way around it--this is big government asserting that it knows better than states, local governments, and farmers and ranchers how to manage the water supply in Idaho.”

The release adds:

"The term 'navigable waters' has long been the term which limits federal intrusion with regards to the Clean Water Act's authority. The Clean Water Restoration Act would remove 'navigable waters' from the law and replace it with the phrase 'waters of the United States,' effectively resulting in a massive expansion of the federal government's authority by increasing the number of waters subject to water quality standards."

“I am also deeply concerned about the ramifications of this legislation on states' rights,” continued Simpson. “Under this bill, the reach of federal jurisdiction over water in Idaho would be so broad that it could significantly restrict the ability of landowners' to make decisions about their property and the right of state and local governments to plan for their own development.”

Simpson is the Ranking Member on the House appropriations subcommittee that funds EPA. Last year, he filed an amendment to the Interior and Environment Appropriations bill to block EPA from implementing any attempt to expand the federal government's jurisdiction under the Clean Water Act. Democratic leadership blocked the Simpson amendment from being debated on the House floor, but Simpson said he will introduce a similar amendment this year.

Read more:

WASHINGTON (April 23, 10:30 a.m. ET) -- It is uncertain, and probably unlikely, that legislation to reform how chemicals are regulated at the federal level will emerge this year.

But, after a year of posturing by all sides, the first concrete step toward reforming the 34-year-old Toxic Substances Control Act is now a reality with the introduction of bills in both the Senate and the House to reform TSCA. TSCA governs how the U.S. Environmental Protection Agency regulates chemicals.

There are differences between the Safe Chemicals Act introduced April 15 by Sen. Frank Lautenberg, D-N.J, and the TSCA reform measure proposed by Rep. Henry Waxman, D-Calif., and Rep. Bobby Rush, D-Ill. But essentially, the bills would shift the burden of proof to industry to show that chemicals are safe, rather than the current approach which requires EPA to show that chemicals would cause “unreasonable risk.”

Asarco Sues EPA To Nix $34M Superfund Claims

Law360, New York (April 19, 2010) -- Asarco LLC is suing the U.S. government to scratch $33.6 million in claims the reorganized mining giant maintains have been wrongly and tardily imposed in connection with the cleanup of a Superfund site in California.

The complaint, lodged April 5 in the U.S. District Court for the Eastern District of California, claims Asarco doesn't owe a penny for vast contamination at the Blue Ledge Mine.

Clean Water Legislation or Slight of Hand?

Author: Reed Hopper

Today, politicians in the House of Representatives introduced H.R.5808 , euphemistically named, "America's Commitment to Clean Water Act." This is a redo of the "Clean Water Restoration Act" which has languished in committee for years and purportedly addresses concerns that the "Clean Water Restoration Act" went too far and authorized federal control of virtually all waters in the United States.

But, in fact, it does not address those concerns. This is the same extreme bill dressed up in different clothes.

Although the new version of the bill does not say it covers all interstate and intrastate waters, like the old version did, H.R. 5808 does so in other words. The bill expressly authorizes federal regulation of interstate and "all other waters, including [but not limited to] intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds" as well as all impoundments and tributaries of these waters, including all waters adjacent to these waters.

In response to arguments that the "Clean Water Restoration Act" would have raised a constitutional conflict because that bill purported to allow federal control of all waters to the fullest extent of the Constitution, including activities affecting those waters, the authors of H.R.5808 employ a transparent slight of hand. First, they claim to be doing nothing more than adopting the existing federal regulatory definition of jurisdictional waters and, second, they cite the specific constitutional provisions on which they rely, such as the commerce power. But this is no answer.

The reason the Supreme Court limited federal jurisdiction under the Clean Water Act in SWANCC (2001) and Rapanos (2006) is because the Corps and EPA interpreted their own federal regulations too broadly–potentially exceeding the commerce power. Those overly broad regulatory interpretations would have resulted in a constitutional conflict if the Supreme Court had not placed some limits on federal authority by narrowly reading the language used in the Clean Water Act.

Expanding the statutory language to encompass the regulatory interpretations the Supreme Court found objectionable in SWANCC and Rapanos does not remove the constitutional conflict. Rather, it heightens the conflict.

Mr. T.W. Arman Motions the Court:

to commutate the policies as provided in the Consent Decree, to make him Trustee.

to reverse the Findings Lodged February 19, 2002, violating due process; strike the lien.

to certify for review of Conflict of Interest, Prohibition; the STIPULATION AND NOTICE OF SUBSTITUTION OF SITE OPERATOR PURSUANT TO CONSENT DECREE ENTERED DECEMBER 13, 2000. Filed July 29, 2004, November 15, 2000 Memorandum of Points and Authorities in Support of Joint Motion for Entry of Consent Decree, and the Consent Decree of December 8, 2000.

to certify for review of Wrongful Taking Prohibition Corrupt Practices & Fraud Upon The Court,

the Order of October 1, 2004.

April 21 (Bloomberg) — New York's case against American International Group Inc. ex-Chief Executive Officer Maurice “Hank” Greenberg is “devastating,” State Supreme Court Justice Charles Ramos said yesterday during a court hearing.

The judge is presiding over a lawsuit filed in 2005 by then-New York Attorney General Eliot Spitzer that accused Greenberg, 84, and former AIG Chief Financial Officer Howard Smith of using sham reinsurance deals and other transactions to distort the reported financial condition of the company. The judge didn't issue a ruling yesterday.

Assistant Attorney General David Ellenhorn yesterday told Ramos Greenberg had directed or participated in fraudulent transactions. David Boies, a lawyer for Greenberg, said the state had “failed” and was relying on hearsay and inadmissible evidence from a federal case in which Greenberg wasn't a defendant.

“I can see big problems with establishing a defense” to the state's claims about securities fraud, Ramos told Boies during the hearing. “Mr. Ellenhorn has put together a devastating case, a strong case, and we both know it.”

Greenberg's lawyers and attorneys from New York Attorney General Andrew Cuomo's office each asked the Manhattan judge to grant their motions for summary judgment, or a decision before trial. Greenberg has asked, in the alternative, for Ramos to dismiss the lawsuit.

Ellenhorn argued Greenberg should be held liable for a fraudulent transaction involving AIG and General Re Corp., the reinsurer owned by Warren Buffett's Berkshire Hathaway Inc.

Greenberg ‘Legendary'

“Hank Greenberg is legendary for his control, for his micro-managing,” Ellenhorn said. “Mr. Greenberg is in charge of this transaction, it's his baby, his deal. He created it.”

When Greenberg was asked about the deal in pretrial interviews with the state last month, he answered “I don't remember” or “I don't know” about details concerning the transaction, Ellenhorn said.

“Here is a man who drills down to deals so deep he could have gotten down to the Arctic ice and yet he would have us believe that he doesn't know about the deal?” Ellenhorn said.

“It's ridiculous, it's preposterous. It's embarrassing for him to say he didn't know such a thing.”

Greenberg has said in court filings he relied on professional advisers for transactions that are the basis of claims in Spitzer's lawsuit.

Greenberg, who wasn't in court yesterday, has accused Spitzer of using the case to promote his political career, according to a court filing. Spitzer resigned as governor in March 2008 after he was identified as a client of a high-priced prostitution ring.

‘Disputed' Evidence

Boies, of Boies, Schiller & Flexner LLP, yesterday argued that Cuomo's office relies upon “disputed and inadmissible evidence.”

“The New York Attorney General's Office fails to establish the essential elements of its case,” he said.

Robert Morvillo, another lawyer for Greenberg, told Ramos that if the claims against Greenberg aren't thrown out, they should go to a jury.

“Mr. Greenberg in his depositions denied any knowledge of any riskless transaction, he's done it under oath and in detail, page, after page, after page of deposition pages,” Morvillo said. “Any argument that Mr. Greenberg initiated a sham transaction is totally belied by the proof here.”

“There is no independent non-hearsay evidence that demonstrates Mr. Greenberg was a member of a conspiracy,” Morvillo said.

AIG Restated Earnings

AIG, once the world's largest insurer, ousted Greenberg in March 2005, two months before Spitzer sued him and Smith, alleging they misled regulators and investors. Spitzer dropped portions of the suit in 2006 that included four allegations tied to his investigation. Greenberg seeks to dismiss the claims that are still pending without a trial.

AIG, based in New York, eventually restated its earnings, lowering them by $3.4 billion, and agreed to pay $1.64 billion to settle claims by Spitzer and other regulators, without admitting or denying wrongdoing. In court papers filed in July 2006, Greenberg argued AIG's 2005 restatement was unnecessary and designed to force him to retire.

Gen Re Transaction

Como's office has argued it should win a partial summary judgment because “an adverse inference” should be drawn from Mr. Greenberg's citing of his constitutional right against self- incrimination.

Both Greenberg and Smith “knew, and certainly easily could have known, that the Gen Re deal involved no risk,” according to Cuomo's filing. “At the very least, they had absolutely no basis for concluding that there was risk.”

Greenberg and Smith also certified financial statements for four years that reflected the $500 million in reserves, Ellenhorn said yesterday.

Lawyers for the state said in court papers that when Greenberg testified in a pretrial interview in March that he had no role in the Gen Re reinsurance transaction, his testimony was “both incredible and irrelevant.”

Greenberg in 2008 asserted his Fifth Amendment right against self-incrimination in pretrial testimony in the civil fraud suit when questioned about Gen Re, citing the threat of criminal prosecution.

He agreed to be questioned under oath by the state last month, saying in court papers that the statute of limitations had expired.

Greenberg said he told the state's lawyers in his recent deposition that “he asked for a legitimate reinsurance transaction from Gen Re, and his testimony is corroborated by substantial independent evidence,” according to his filing.

Federal Trial

Four former Gen Re executives, including ex-CEO Ronald Ferguson, and one from AIG, Christian Milton, were convicted in 2008 at a fraud trial focusing on the transaction. The fraud cost AIG shareholders $544 million to $597 million, according to the ruling by a federal judge in Hartford, Connecticut. Two other Gen Re executives pleaded guilty.

Greenberg agreed in August to pay $15 million and Smith consented to pay $1.5 million to resolve a suit brought by the U.S. Securities and Exchange Commission.

The transaction preceded the 2008 financial crisis at AIG, which got a bailout of $182.3 billion from U.S. taxpayers.

AIG said on Oct. 26, 2000, that premiums increased in the third quarter of that year as loss reserves for claims fell. Five days later, Greenberg asked Ferguson to help with AIG's reserves, a key measure of an insurer's health.

Sham Transfers

AIG and Gen Re, based in Stamford, Connecticut, engaged in sham transfers of policies and premiums between them that allowed AIG to inflate its loss reserves by $500 million, the government said in that federal fraud trial. Prosecutors said the transaction was phony because it involved no transfer of risk between the two companies.

Ramos closely questioned Boies about those convictions yesterday after Boies argued that the Gen Re transaction wasn't relevant to the state's suit against Greenberg.

“This is what troubles me,” Ramos said. “I don't think anyone contests that the Gen Re transaction was a fraud. Four people went to prison for it, Gen Re paid $92 million to settle claims, and we have Mr. Greenberg's testimony that he didn't discuss the deal with Mr. Ferguson, the CEO of Gen Re. Why can't Mr. Ellenhorn rest on that?”

“Re the four people going to jail,” Boies said, “That's not this case, that's not relevant, and that case is still being appealed.”

The case is New York v. Maurice Greenberg, 401720/2005, New York Supreme Court, New York County (Manhattan).

–With assistance from David Voreacos in Newark, New Jersey. Editors: John Pickering, Peter Blumberg.

To contact the reporter on this story: Patricia Hurtado in New York State Supreme Court at

To contact the editor responsible for this story: David E. Rovella at

Ex-AIG Chief Greenberg Faces Devastating Case, Judge Says

Brown Accuses Moody's of Refusing To Explain Its Role in Financial Crisis

LOS ANGELES - Accusing giant bond-rating firm Moody's Investors Service of withholding evidence documenting its role in the housing and Wall Street meltdown, Attorney General Edmund G. Brown Jr. today announced court action to force Moody's to explain why it gave its highest ratings to "risky and toxic" mortgage-backed securities that ultimately cost investors and taxpayers billions of dollars.

Brown's action comes seven months after the Attorney General subpoenaed Moody's, but the firm has refused to comply with the subpoena.

"The need for court action to enforce a state subpoena is highly unusual," Brown said, "because companies almost always comply without such a drastic step being necessary." But he said Moody's, which played a central role in the run-up to the collapse of housing prices, has refused to explain its ratings practices to the state. Moody's said responding to the state subpoena would be a "waste of time."

"The state's subpoena seeks information regarding Moody's decision to give its highest credit ratings to securities backed by risky and toxic mortgage-backed securities," Brown said.

"By taking this step, I intend to stop Moody's from ignoring the state's subpoena," Brown said. "The people of California have the right to know how this credit rating agency got it so wrong and whether it violated California law in the process."

Moody's and other credit rating agencies ignored red flags in the run-up to the collapse in housing prices and gave stellar ratings to shaky securities, which made those investments appear as safe as government-issued Treasury bonds, Brown explained.

"But investors swiftly learned that the ratings were as worthless as the securities themselves," he said.

Brown said Moody's and other ratings agencies worked behind the scenes with the same Wall Street firms that created the securities, earning billions of dollars in revenue from those firms at a rate nearly double what they earned for rating other securities.

"A central question in the aftermath of the financial meltdown is whether Moody's gave investment banks and other securities packagers unwarranted high ratings at the expense of investors, who depended upon the integrity and independence of Moody's ratings," Brown said.

The subpoena issued by Brown's office on Sept. 17, 2009, seeks to determine:

- Whether Moody's knew that the AAA ratings it gave to high-risk securities weren't warranted
- Whether Moody's made fraudulent representations about the quality of its ratings
- Whether Moody's made fraudulent representations concerning the independence of its ratings
- Whether Moody's conspired with companies it rated to the detriment of investors
- Whether Moody's profited from giving inaccurate ratings to some securities
- Whether Moody's compromised its own standards and safeguards in order to increase its own profits.

Moody's and other Wall Street ratings agencies grade the credit worthiness of the bonds and securities that corporations and municipalities issue. Investors depend on these ratings to gauge risk in making investments. At the peak of the housing boom, these agencies gave their highest ratings to complicated, high-risk financial instruments that soon accelerated the financial collapse.

Brown said banks, pension funds and other investors, in California and elsewhere, relied on these ratings when they purchased trillions of dollars of securities backed by risky mortgages, seeking high returns and reassured by ratings indicating the issues were low-risk. Those purchases helped inflate the housing bubble by enabling ever-riskier mortgages.

When the speculative bubble burst, those risky mortgages defaulted in record numbers and investors were left unable to sell now-worthless securities. The agencies then downgraded the credit ratings of more than $1.9 trillion in residential mortgage-backed securities, a tacit acknowledgement they had ignored or did not understand the risks of the debt they rated, Brown said.

Moody's is one of the most profitable companies in the country. It had the highest profit margin of any company in the S&P 500 in the years leading up to 2008 - higher than Google or Microsoft, according to U.S. Representative Henry Waxman, Chairman of the House Committee on Oversight and Government Reform.

Brown's investigation of Moody's is one of many actions by his office to fight financial abuses relating to the mortgage meltdown, including his 2008 lawsuit that resulted in an $8.68 billion settlement with Countrywide Home Loans over its fraudulent lending practices, as well as recent crackdowns by the Attorney General on foreclosure consultants and loan-modification scammers.











not even a danger to hikers and fish liver eaters.pdf,


Army officers benefits prior rights

Admiralty jurisdiction?

















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