IRON MOUNTAIN MINES INSTITUTE - FREEMINERS UNIVERSITY
COLLEGE FOR THE BENEFIT OF AGRICULTURE AND THE MECHANIC ARTS

DISTRICT COURT
the "CENTINEL"

To all to whom these Presents Shall come, Greeting: In Testimony Whereof.
“The duty we owe to the Creator and the manner of discharging it.”
CHRIST OF THE FREEMINERS

Yet have I set my king upon my holy hill of Zion. (psalm 2)


Broad criteria: relevance, inclusiveness, objectivity, transparency and openness, timeliness, and
best available science for proposed covered actions and for use
peer review.
The statutory protection found at CERCLA § 107(r)(l) is self-implementing and the EPA generally will not be involved

"I don't mind pounding heads & twisting arms when I'm NOT running my fenced,  posted, & otherwise indicated unmistakably;

PRIVATE PROPERTY!"  Occupation right-a-way:

Observing Safeguards while Covering all the Bases...taking ownership
Trail Bla
zing in a Wilderness of Conflicting Counsels Venturing out of their League.

"The agency has a very good batting record" - David Doniger, policy director of the National Resources Defense Council's Climate and Clean Air Program (Wiffle Ball)

Solid Waste Facility Cleanup Prospecting Permit - Landfill Violating State Minimum Standards

“It is to protect citizens against … overreaching actions by government bureaucrats that
courts are empowered to prevent arbitrary and capricious interference with property rights.

Long-term Legacy - Disposal Site: Abatement of landfill leaching into valuable watershed habitat.

Notification of Intent: Best Management Practices for timely remediation and for New Redevelopment and accelerating cleanup and restoring site and protecting public health and safety and the environment.

Custom Mill Site:  Public lands which are non-mineral, independent of mining claim.  (43 CFR 3844)

John F. Hutchens, Principal Investigator, Prospector, Headmaster Naturalist, Tenant-in-Chief

Authority: Implementing certain provisions of the MRP on behalf of the Shasta County Flood Control and Water Conservation District. Critical Watershed Habitat & New Enterprise Zone Program.

Overall Mission: Freehold interest in subject Abandoned Disposal site renewable energy waste minerals.

Qualified Application: Persons engaged in cleanup activities needed to protect public health and safety or the environment reducing pollutants entering the county's storm-water system activities including the ownership and use of premises that is source of pollutants, with business enterprise and dwelling units.

Priority: (Public entities bear financial responsibility for remediating public landfill sites in compliance with State regulations and standards and to accelerate the pace of remediation cleanup & restoring sites.)

Special Financial Assurance Management Site Storage Disposal Treatment Assistance Mechanisms Unit

EPA recognizes the uncertainty regarding the potential liability of certain parties under CERCLA.
CERCLA expressly confers upon EPA the ability to provide certain assurances to a certain party who wishes to be treated as exempt from CERCLA liability and meet certain statutory requirements to provide certain parties liability protection. Independent science advisory "innovation ecosystem Prospecting Permit

Taking reasonable steps going forward toward sustainability and factoring for measuring ownership from the time of cleanup best bona fide authority management performance adapted to local conditions exclusion of certain property

    3116(a)        40:258e-1 (less         Feb. 26, 1931, ch. 307, Sec. 
                    last sentence).         6, as added Pub. L. 99-656,

Regarding the Treatment of Tenants : EPA actions effectually obliterate the distinction applicable to certain tenants of some nexus to the act or omission giving rise to the matter of innocent purchasers do need to satisfy the contractual relationship test of the third party defense and to clarify and improve protections "EPA knew or showed reckless disregard for" functions concerning whether its conduct was prohibited" and provided regarding the degree to which the invasion is intended or is the foreseeable result of authorized government action when EPA did not prevent disposal of hazardous waste and failed to act with appropriate care.

“We can’t let sunk costs or past behavior define our path forward,”

When The Landfill Is Full…

FILED UNDER: ,

The Biggest Fish Story Ever Told

Overlying Rights Performance based on what to do in a case of an EMERGENCY! Human rights report finds persistent persecution of the non-religious

Brandon Gatto December 11, 2012

Photo source or
                                            description

[JURIST] A report [text, PDF] by the International Humanist and Ethical Union (IHEU) [advocacy website] has found [press release] that atheists and other non-religious persons suffer persecution and discrimination all over the world, and that prosecutions of blasphemy have risen along with the popularity of social media. The report, "Freedom of Thought 2012: A Global Report on Discrimination Against Humanists, Atheists, and the Non-Religious," was released on Monday [Reuters report] to recognize Human Rights Day [UN backgrounder], and discusses laws and cases in 60 countries where atheists have been prosecuted for their beliefs. It also reports that the laws are used to curb the rights of the non-religious. Specifically, certain decrees are used to suppress expression, restrict the right to marry, obstruct access to public education, criminalize blasphemy, and even execute those who choose to stop practicing the religion of their parents. Additionally, the report notes a drastic increase in blasphemy cases in 2012, as more than a dozen people in 10 counties have been prosecuted for their posts on Facebook and Twitter, as compared to the three cases prosecuted over the last three years. The report was welcomed by the UN Special Rapporteur on freedom of religion or belief [official website], Heiner Bielefeldt, who hopes that the international community will reflect on the IHEU's findings.

In October, Bielefeldt presented his own report [JURIST report] to the UN General Assembly [official website] that urged all member states to protect freedom of belief as it applies to religious conversion. In particular, the report documents the Special Rapporteur's analysis of international patterns of abuse in the area of religious conversion [UN News Centre report], detailing violations in which people are either restricted in their rights to conversion or are forced to convert or reconvert to become more "acceptable" to the society in which they live.

Custodian of Records, MS 5
California Integrated Waste Management Board
P.O. Box 4025 Sacramento, CA 95812-4025

Existing law authorizing or requiring the sale of acquired lands empower any commission, bureau, 

or agency of the Government to make the sale of any acquired land: Provided, That any such sale or 

conveyance of lands shall be made by the agency having jurisdiction thereof, subject to any lease 

theretofore made, covering the mineral deposits underlying such lands: Provided further, That 

nothing in this chapter is intended, or shall be construed to affect in any manner any provision 

of chapter 641 of title 10.
 
Independent establishment having jurisdiction over the land.
 
(Corporation primarily acting as an agency which produces electrical energy for sale to the public 

if such governmental entity is located in the State in which such lands are located.)

Provisions of section 2325 (30 U.S.C. 29) 43 CFR 3861.1

A millsite must be occupied or used in connection with mining activity.

Research, Education, and Economics  - opportunity assessment

Moving Forward to Improve Engineering Education.

"Jury Trial of Right"--

A properly demanded jury trial on the issue of just compensation "is a matter of right,"

("The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate."), with FRCP 38(b) ("Any party may demand a trial by jury of any issue triable of right by a jury by [following specified procedures].").

Time-tested practice of amending: Wrongful Detainer.

E.P.A. TIMES-UP!

"Because the (law) does not contemplate the use of federal funds to support religious activities, plaintiff lacks standing."

Identify agencies that should serve: Instituting structural, procedural, and role changes aimed at the EPA moving sailing away.

EPA Administrator Lisa Jackson abandons the EPA helm!

Historic progress: "I will leave the EPA confident the ship is sailing in the right direction."
Please Provide a comprehensive review of all facets of undertaking this federal enforcement case.

Alternatives For Managing The Nation’s Complex

Unmistakable indications of intent to take and use.

The CFR Title covering environmental protection alone contains at least 88,852 specific regulatory restrictions.

4,995 EPA rules appeared in the Winter Unified Agenda from 1999-2011. Over the same period, 7,161 EPA final rules were published in the Federal Register. Its most recent edition is the one for fall 2011. The spring 2012 edition was never published and the fall 2012 edition is now overdue. In the fall 2011 edition, the EPA had 318 new rules.

"Covenant to Establish a Commonwealth benevolent flexible purpose trust association to assist homeless and for prohibition against discrimination federal joint venture collection of payments due to advisory to assist.

Invasion of a legally protected interest made it impossible to protect entanglement with religion & safety inspections. Standing to bring challenged constitutionality exception action implementing program demonstration order with due respect to individuals freedom regarding the uncertainty applicable to matters of substantive law & procedure to which denial of due process caused injury to their moral principles and aesthetic sensibilities in effect at the time of establishment.

 

Reach and comprehend likewise the exception applicable securing exclusive rights provisions regarding certain matters of substantive law and procedure challenged constitutionality action to bring sovereignty malpractice patently without reasonable foundation or due process and the necessity that springs from the right vested that there inheres value and imports power over government appropriating private property and the duty private in nature of standing that does not foster excessive government.


Noble domain proper exercise to enforce comprehensive federal field preemption cause of action, by proper means the vehicle by which to evaluate exactions not supported by evidence or reasonable justification and compensation remedy for a regulatory taking that continues as long as the government agency endures whether substantive due process or takings, and whether money is "property." useful arts not being readily ascertainable by other persons.

 

Rural Utilities Service high acts over government sovereignty; subordination held with jurisdiction & standing to bring action because federal money was spent wrongfully taking or appropriating and maintain actual or potential occupancy & community welfare efforts that are reasonable protecting value under the circumstances and promoting recognition by name and constitutional provision right.


Relief from certain existing claims.
Implied action for the knowing violation of "important, non-discretionary" rules and implied remedy 
for the violation of "important, non-discretionary" rules whose violation permits aggrieved individuals
to sue in federal court.
Sec. 252. 
administrative practice or enforcement policy of any such agency with respect to the class to which he belongs.

 

“Like a thief in the night” made impossible on the ground “without foundation”.

TRANSFER OF FUNCTIONS                      

      Functions relating to enforcement and administration; applicability of "area of production" regulations.

The constitutional rule that "one man's junk is another's gold,"

 

"The only thing necessary for evil to triumph is for good men to do nothing." –Sir Edmund Burke

 

"My presence here is special. I am here as result of a forced bill of pain and penalty against my Life, Liberty and pursuit of Happiness."

 

I bring charges for violations of 18 USC §§ 242 and 241, and under 42 USC §§ 1988 and 1983.

satisfying the “manifest injustice” standard of Style Rule 16(e).

 

"In times of universal deceit, telling the truth will be a revolutionary act." --George Orwell

 

-CITE- 30 USC Sec. 351 -EXPCITE- TITLE 30 CHAPTER 7 -HEAD- Sec. 351. Definitions -STATUTE- As used in this chapter 'United States' includes Alaska. 'Acquired lands' or 'lands acquired by the United States' include all lands heretofore or hereafter acquired by the United States to which the 'mineral leasing laws' have not been extended, including such lands acquired under the provisions of the Act of March 1, 1911 (36 Stat. 961, 16 U.S.C., sec. 552).

 

A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and he carries his banners openly. But the traitor moves among those within the gate freely, his sly whispers rustling through all the alleys, heard in the very halls of government Itself. For the traitor appears not traitor, he speaks in the accents familiar to his victims and he wears their face and their garments, and he appeals to the baseness that lies deep in the hearts of all men.
He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of a city, he infects the body politic So that it can no longer resist. A murderer is less to be feared."

 

"Debt begins in Admiralty whether on land or navigable waters."
United States v. $5,372.85 United States Coin and Currency, 283 F.Supp. 904, 905-06 (S.D.N.Y. 1968)

42 USC § 1986 - Action for neglect to prevent

Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.

 

Corruptissima re publica plurimae leges
"When the republic is at its most corrupt the laws are most numerous"

--Publius (or Gaius) Cornelius Tacitus (ca. 56 – ca. 117) a senator and a historian of the Roman Empire.

 

'The Judicial Department comes home in its effects to every man's fireside; it passes on his property, his reputation, his life, his all. Is it not, to the last degree important, that he should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience? * * * I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary.' – Chief Justice Marshall, in the course of the debates of the Virginia State Convention of 1829--1830 (pp. 616, 619),

 

Comment

The Ninth Circuit has held the common law test for materiality, as reflected in the

last sentence of this instruction, is the standard to use when false statement statutes

such as 18 U.S.C. § 1001 are charged. United States v. Peterson, __ F.3d ___, 2008 WL

3388737 (9th Cir. Aug.13, 2008) (citing United States v. Gaudin, 515 U.S. 506, 509

(1995)). “The false statement need not have actually influenced the agency, and the

agency need not rely on the information in fact for it to be material.” United States v.

Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998); see also United States v. Matsumaru,

244 F.3d 1092, 1101 (9th Cir. 2001).

No mental state is required with respect to the fact that a matter is within the

jurisdiction of a federal agency, and the false statement need not be made directly to

the government agency. United States v. Green, 745 F.2d 1205, 1208-10 (9th Cir.1984).

There is no requirement that the defendant acted with the intention of influencing the

government agency. United States v. Yermian, 468 U.S. 63, 73 & n. 13 (1984). The initial

determination whether the matter is one within the jurisdiction of a department or

agency of the United States—apart from the issue of materiality—should be made by the

court as a matter of law. United States v. F.J. Vollmer & Co., Inc., 1 F.3d 1511, 1518

(7th Cir. 1993).

To make a false statement “willfully” under Section 1001, the defendant must

have the specific intent to make a false statement. Specific intent does not require evil

intent but only that the defendant act deliberately and with knowledge. United States v.

18 U.S.C. § 1001 read and learn 2 / 2

Heuer, 4 F.3d 723, 732 (9th Cir. 1993).

Materiality must be demonstrated by the government, United States v. Oren, 893

F.2d 1057, 1063 (9th Cir. 1990); United States v. Talkington, 589 F.2d 415, 416 (9th

Cir.1978), and must be submitted to the jury. Gaudin, 515 U.S. at 506. Actual reliance is

not required. Talkington, 589 F.2d at 417. The materiality test applies to each allegedly

false statement submitted to the jury. Id.

Depending on the facts in evidence, it may be appropriate to amend this

instruction with language requiring specific jury unanimity (e.g., “with all of you

agreeing as to which statement was false and material”). See Instruction 7.9 (Specific

Issue Unanimity).

Source:

http://207.41.19.15/web/sdocuments.nsf/dcf4f914455891d4882564b40001f6dc/a403f522ad2c4d3b882

564ba007d8f6b?OpenDocument

"A jury in a federal criminal case cannot convict unless it unanimously finds that

the Government has proved each element." Richardson v. United States, 526 U.S.

813, 817 (1999) (continuing criminal enterprise prosecution).

 

In 1698, Lord Holt recognized “three sorts of damages, any of which would be sufficient

ground to support this action”:

(1) The damage to a man’s fame, as if the matter whereof he is

accused be scandalous. . . . (2) [Damages] done to the person;

as where a man is put in danger to lose his life, or limb, or liberty,

which has been always allowed a good foundation of such

an action . . . . (3) [Damages] to a man’s property, as where he is

forced to expend his money in necessary charges, to acquit himself

of the crime of which he is accused . . . .8

 

“three ‘absolute rights of every Englishman’” were property, liberty,

and personal security, with liberty meaning only freedom of movement, while personal security included “‘reputation.’

 

(“The gravamen of [abuse of process] is not the wrongfulness of the prosecution, but some extortionate perversion of

lawfully initiated process to illegitimate ends.”); Keeton et al., supra note 6, § 121, at 897–98 (“[I]f the defendant prosecutes an innocent plaintiff for a crime without

reasonable grounds to believe him guilty, it is malicious prosecution; if he prosecutes him with such grounds to extort payment of a debt, it is abuse of process.”)

 

In such a case, relief may be available in a federal court

under § 1983, which authorizes “constitutional torts” by creating private

rights of action against any person who, “under color of [state law],”

causes injuries by violating an individual’s federal constitutional or statutory

rights.17 Section 1983, however, “is not itself a source of substantive

rights, but a method for vindicating federal rights elsewhere conferred by

those parts of the United States Constitution and federal statutes that it

describes.”18 Therefore, in order to bring a malicious prosecution claim

under § 1983, malicious prosecution must be deemed a deprivation of a

right “secured by the Constitution.”19 This Note argues that a malicious

prosecution violates the Fourth Amendment right to be free from “unreasonable searches and seizures.”20

 

Monetary damages may be similarly available in a suit against persons acting under

color of federal law. See Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388, 391–97 (1971) (holding that Fourth Amendment includes right of

action against federal officials). But see Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68–70

(2001) (“In 30 years of Bivens jurisprudence we have extended its holding only twice . . . .

[W]e have consistently rejected invitations to extend Bivens . . . .”); id. at 75 (Scalia, J.,

concurring) (characterizing Bivens as “a relic” and limiting it to its precise facts); Erwin

Chemerinsky, Federal Jurisdiction § 9.1.2, at 595–96 (4th ed. 2003) (“[A] reconsideration

of Bivens may occur as the composition of the Court changes.”); Richard H. Fallon, Jr. et

al., Hart & Wechsler’s The Federal Courts and the Federal System 816–21 (5th ed. 2003)

[hereinafter Hart & Wechsler] (discussing “retrenchment” of Bivens doctrine); Matthew G.

Mazefsky, Casenote, Correctional Services Corporation v. Malesko: Unmasking the Implied

Damage Remedy, 37 U. Rich. L. Rev. 639, 654–55 (2003) (discussing whether Bivens is

dead).

18. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). 19. 42

Committee Notes on Rules—2001 Amendment

The final sentence of Rule 82 is amended to delete the reference to 28 U.S.C. §1393, which has been repealed.

Style Comment

The recommendation that the change be made without publication carries with it a recommendation that style changes not be made. Styling would carry considerable risks. The first sentence of Rule 82, for example, states that the Civil Rules do not “extend or limit the jurisdiction of the United States district courts.” That sentence is a flat lie if “jurisdiction” includes personal or quasi-in rem jurisdiction. The styling project on this rule requires publication and comment.

 Jurisdiction, once challenged, is to be proven, not by the court, but by the party attempting to assert jurisdiction. The burden of proof of jurisdiction lies with the asserter. The court is only to rule on the sufficiency of the proof tendered. See McNutt v. GMAC, 298 US 178. The origins of this doctrine of law may be found in Maxfield's Lessee v Levy, 4 US 308.

 

“It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.” Cohens v. Virginia, 19 U.S. 264, 404, 5 L.Ed. 257, 6 Wheat. 264 (1821)

 

“However late this objection has been made, or may be made in any cause, in an inferior or appellate court of the United States, it must be considered and decided, before any court can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.” Rhode Island v. Massachussetts, 37 U.S. 657, 718, 9 L.Ed. 1233 (1838)

 

Where there is no jurisdiction over the subject matter, there is, as well, no discretion to ignore that lack of jurisdiction. [John J. Joyce v. United States of America, 474 F.2d 215, 219] Joyce v. U.S., 474 F.2d 215, 219 (C.A.3 (Pa.), 1973)

 

transfusio unius creditoris in alium.

 

"A departure by a court from those recognized and established requirements of law, however close apparent adherence to mere form in method of procedure, which has the effect of depriving one of a constitutional right, is an excess of jurisdiction." Wuest v. Wuest, 127 P2d 934, 937.

 

"Agency, or party sitting for the agency, (which would be the magistrate of a municipal court) has no authority to enforce as to any licensee unless he is acting for compensation. Such an act is highly penal in nature, and should not be construed to include anything which is not embraced within its terms. (Where) there is no charge within a complaint that the accused was employed for compensation to do the act complained of, or that the act constituted part of a contract." Schomig v. Kaiser, 189 Cal 596.

 

"When acting to enforce a statute and its subsequent amendments to the present date, the judge of the municipal court is acting as an administrative officer and not in a judicial capacity; courts in administering or enforcing statutes do not act judicially, but merely ministerially". Thompson v. Smith, 154 SE 583.

 

"A judge ceases to sit as a judicial officer because the governing principle of administrative law provides that courts are prohibited from substituting their evidence, testimony, record, arguments, and rationale for that of the agency. Additionally, courts are prohibited from substituting their judgment for that of the agency. Courts in administrative issues are prohibited from even listening to or hearing arguments, presentation, or rational." ASIS v. US, 568 F2d 284.

 

"The elementary doctrine that the constitutionality of a legislative act is open to attack only by persons whose rights are affected thereby, applies to statute relating to administrative agencies, the validity of which may not be called into question in the absence of a showing of substantial harm, actual or impending, to a legally protected interest directly resulting from the enforcement of the statute." Board of Trade v. Olson, 262 US 1; 29 ALR 2d 1051.

 

 “Congress shall have Power . . . to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. CONST. art. I, § 8, cl. 2.

 

See United States v. 80.5 Acres of Land, 448 F.2d 980, 983 (9th Cir.1971) ( “[T]he necessity of taking or appropriating private property for public use is legislative in nature and one over which the courts lack jurisdiction.”).

 

the Uniform Trade Secrets Act defines a “trade secret” as:

[I]nformation . . . that: (i) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

 

"[t]he government may not take property like a thief in the night; rather, it must announce its intentions and give the property owner a chance to argue against the taking." Clement v. City of Glendale, 518 F.3d 1090, 1093 (9th Cir. 2008).

 

[I]n every political sovereign community there inheres necessarily the right and

the duty of guarding its own existence, and of protecting and promoting the

interests and welfare of the community at large. This power and this duty are

to be exerted not only in the highest acts of sovereignty, and in the external

relations of governments; they reach and comprehend likewise the interior

polity and relations of social life, which should be regulated with reference to

the advantage of the whole society. This power, denominated the eminent

domain of the state, is, as its name imports, paramount to all private rights

vested under the government, and these last are, by necessary implication, held

in subordination to this power, and must yield in every instance to its proper

exercise.

West River Bridge Co. v. Dix, 47 U.S. 507, 531–32 (1848). See also 1A-3 JULIUS L.

SACKMAN, NICHOLS ON EMINENT DOMAIN ' 3.01[1–2] (Matthew Bender & Company,

Inc., 3rd ed. 2006) (1982).

Eminent domain is the power of the sovereign to take property for public use,

without the owner's consent, and upon making just compensation. This

authority “springs from . . . a necessity of government,” and is considered to be

an essential attribute of sovereignty. Eminent domain authority is predicated

upon the superior right of the state over private property. It comes into being

with the establishment of the government and continues as long as the

government endures. Eminent domain authority does not require recognition

by constitutional provision, but exists in absolute and unlimited form.

(Footnotes omitted).

 

"Section 302 of the Department of Agriculture

Reorganization Act of 1994, P.L. 103-354, created the Rural Utilities Service with jurisdiction over the

rural electric, telephone, waste, and water programs formerly under REA and the Farmers Home

Administration." Id. at n.28.2.

 

The police power is reserved to the states through the Tenth Amendment to

the United States Constitution which reads, "The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the

people." U.S. CONST. amend. X.

 

"The courts should not assume the role which our system assigns to Congress".

 

we do “not substitute [our] judgment for a legislature's judgment as to what constitutes a public use ‘unless the use be palpably without Midkiff, 467 U.S. at 241, 104 S.Ct. 2321reasonable foundation.’  (quoting United States v. Gettysburg Elec. Ry. Co., 160 U.S. 668, 680, 16 S.Ct. 427, 40 L.Ed. 576 (1896)).

 

The arbitrary and capricious standard15 appears to derive from

both statutory and constitutional roots, although it does not appear

in the United States Constitution or most state constitutional texts.

 

Mr. Justice Brandeis' classic statement of the proposition merits reiteration ... "We

may strike down the statute ... on the ground that, in our opinion, the measure is

arbitrary, capricious or unreasonable. We have power to do this, because the due

process clause has been held by the Court applicable to matters of substantive law

as well as to matters of procedure."

 

The terms "arbitrary" and "capricious" embrace a concept which emerges from the

due process clauses of the Fifth and Fourteenth Amendments of the United States

Constitution and operates to guarantee that the acts of government will be grounded

on established legal principles and have a rational factual basis. A decision is arbitrary

or capricious when it is not supported by evidence or when there is no reasonable

justification for the decision.

Canty v. Board of Educ., 312 F. Supp. 254, 256 (S.D.N.Y. 1970) (footnote omitted and

emphasis added); see also Richardson v. Belcher, 404 U.S. 78, 84 (1971); cJ. J. NOWAK, R.

ROTUNDA & J. YOUNG, CONSTITUTIONAL LAW 490 n.57 (3d ed. 1986) (citing Van Alstyne,

Cracks in "the New Property": Adjudicative Due Process in the Administrative State, 62

CORNELL L. REV. 445, 487 (1977) (asserting that the Court has not clearly accepted the

constitutional status of the arbitrariness test».

17 "[T]here is no place in our Constitutional system for the exercise of arbitrary power."

Garfield v. United States, 211 U.S. 249, 262 (1908). This assertion is given eloquent lip service

in many cases involving judicial review of legislative administrative decision making. See, e.g.,

General Protective Comm. v. Securities & Exchange Comm'n, 346 U.S. 521 (1954); Jones v.

City of Portland, 245 U.S. 217 (1917); Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803);

Bush v. Martin, 251 F. Supp. 484 (S.D. Tex. 1966).

 

On administrative "questions of law," the judicial review is far more likely to be phrased

in terms of the appropriateness of judicial substitution of judgment than in terms of arbitrariness,

raising issues that similarly turn on degrees of deference.


federal preemption can be of four types: express, conflict, obstacle, and field.  Express preemption is found where there is a statement of preemption.  Conflict preemption is present where compliance with both federal and state or local law is impossible.  Obstacle preemption occurs where the state or local law is an obstacle to the execution of federal law.  Lastly, field preemption arises where the federal government has manifested an intent, through comprehensive regulation, to occupy an entire subject matter of law.


Mar 26 2013 8:00AM to Mar 27 2013 5:00PM Marquette University, Milwaukee, WI

This is a bi-annual meeting of the industry advisory board and center members to assess ongoing research and set priorities for new research directions.

Implication Doctrine's Implications for the Nature and Role of the Federal Courts, divining from silence an intent to create or foreclose private actions, or for that matter an intent to do anything, is admittedly an inexact science.

In addition to the security measures described below, the property owner has posted the property to discourage trespassers.

 "substantial burden,"

When a law is decided through a system of "individualized assessments," strict scrutiny applies. Id. at 884. Strict scrutiny requires the government to prove its law rests on a "compelling interest" and is narrowly tailored. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993).

Through the Looking Glass of Eminent Domain:
Exploring the "Arbitrary and Capricious" Test and Substantive Rationality Review of Governmental Decisions

The establishment, after 30 years is not even willing to correct an essential test that caused the failure of the Clean Water Act.

Scientists are increasingly finding evidence that everyday chemicals, pharmaceuticals and human hormones pass right through the treatment plants and into waterways across the country.

Fixing a problem that’s a century in the making

How did we get here?

told you so

"it’s just a lot harder to make progress after you’ve eaten that low lying fruit."

Watershed Based Permitting

Getting Paid for Stewardship: An Agricultural Community Water Quality Trading Guide (PDF) (59 pp, 3.3MB,

No More 'next several years'.

No good deed goes unpunished: the CERCLA BFPP defense in the wake of Ashley II

Amy
                                    L. Edwards Author page »

In 2002 the U.S. Congress enacted the Small Business Liability Relief and Brownfields Revitalization Act (the 2002 Brownfields Amendments), offering property owners the specter of relief from the joint, strict and several liability scheme of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund). It did so by adding certain Landowner Liability Protections (LLPs) under the Act: the bona fide prospective purchaser (BFPP) defense (42 U.S.C. §§ 9601(40) and 9607(r)) and the contiguous property owner (CPO) defense (42 U.S.C. § 9607(q)), and a modified “innocent landowner” defense (42 U.S.C. § 9601(35)(B)(i)(II)). The BFPP defense is particularly noteworthy because it explicitly allows a purchaser to buy land with knowledge that it is contaminated, yet have a potential defense to federal Superfund liability.1

In the intervening eight years, neither EPA nor the courts have done much to clarify the scope of the LLPs or to provide a roadmap regarding how to maximize the likelihood of qualifying for any of these protections. Now, at least one trial court has offered some guidance on the BFPP defense and, in the process, probably made these protections even more ephemeral than ever.2 In fact, the most likely outcome is more litigation between the parties as they have even more issues about which to argue.

Background of the Case

Ashley II of Charleston, LLC vs. PCS Nitrogen, Inc. et al., 2010 U.S. Dist. LEXIS 104772 (Civ. Action No. 2:05-cv-2782-MBS) (D.S.C. Oct. 13, 2010), decided by the U.S. District Court for the District of South Carolina on October 13, 2010, involved a number of cost recovery and contribution actions by current and former owners and operators of 43 acres of industrial land in Charleston, South Carolina. Phosphate fertilizer plants had operated on and near the site since the late 1880s and had caused extensive contamination, including lead, arsenic, polyaromatic hydrocarbons (PAHs) and acidic (low pH) conditions. The Environmental Protection Agency (EPA) determined that the site met the requirements for initiating a Non-Time-Critical Removal Action under the National Contingency Plan (NCP). While there are a number of interesting CERCLA issues in the case, the case is particularly noteworthy for its analysis of what might be required to qualify for the BFPP defense under the 2002 Brownfields Amendments.

Ashley II of Charleston, LLC (Ashley) was a sophisticated brownfields redevelopment company that had purchased the site shortly after passage of the 2002 Brownfields Amendments. Ashley intended to redevelop the site into a mixed-use project. It conducted a Phase I Environmental Site Assessment (ESA) prior to purchasing the Holcombe and Fair Parties’ (27.62 acres) portion of the site in 2003. Ashley promptly contacted EPA to determine whether EPA needed any “specific cooperation, assistance, access or the undertaking of any reasonable steps” on the site. EPA sent Ashley an information request in 2004, to which Ashley promptly responded. Ashley collected over 450 soil samples to characterize and delineate known environmental conditions on the site. Ashley secured the site by providing access controls (fencing, gates and “no trespassing” signs) and periodic inspections. A contractor for EPA had conducted Phase I and Phase II Remedial Investigations between 1999 and 2001, and EPA had published an initial remediation plan in October of 2005. Ashley provided access to EPA in 2007 and submitted revised remediation plans in March and October of 2008.

Ashley conducted a Phase I Environmental ESA prior to purchasing the Allwaste (2.99 acres) portion of the site in 2008. This Phase I ESA identified the concrete pads and sumps on the site as “Recognized Environmental Conditions” and observed that there was evidence of staining and cracks, prior spillage, and elevated levels of contaminants in the soil and ground water. In total, Ashley spent approximately $195,000 assessing the environmental conditions on the site and estimated that cleanup would cost approximately $8-9 million.

In June of 2008, shortly after taking title, Ashley retained a consulting firm to demolish the remaining structures on the Allwaste parcel, but did not remove the underground structures, including cement pads, sumps, trenches and underground pipes. Runoff was able to collect in these structures and, according to the court, overflow with some degree of regularity. Ashley did not retain its own consultant to evaluate the sumps until September of 2009, and that consultant concluded that the sumps were not leaking. Ashley also did not assess the contents of a debris pile that it had been aware of since 2006, or remove this debris pile which contained hazardous substances, until 2008.

As part of its agreement to acquire the site, Ashley had also agreed to release and indemnify the prior owners, the Holcombe and Fair Parties, from all environmental claims, including response costs under the Environmental Laws.3 Upon learning that EPA was considering bringing cost reimbursement claims against the Holcombe and Fair Parties, Ashley contacted EPA, saying such an action would discourage Ashley’s future development activities.

In September 2005 Ashley had sued PCS Nitrogen, Inc.,4 a prior owner/operator of the site, seeking a declaratory judgment that PCS was liable for the expected remediation costs and for Ashley’s previously incurred costs. PCS, in turn, brought contribution claims against Ashley and several former owners and operators of the site,5 claiming that they were Potentially Responsible Parties (PRPs) and had liability for the environmental conditions on the site. Several of those parties filed counterclaims or cross-claims against the other parties. The court bifurcated the case into liability and allocation phases.

The court rejected PCS’s argument that the harm was divisible or that there was a reasonable basis for apportionment of those costs under the Supreme Court’s Burlington Northern6 decision. Instead, the court used equitable factors in the contribution action to allocate those costs among the parties. The court ultimately concluded that the following parties had liability for the listed percentages of the cleanup costs at the site:

Ross (fertilizer plant owner for 60 years, 1906-1966) 45%

PCS (conducted manufacturing operations for six years)7 30%

Holcombe and Fair Parties (former owners who engaged in earthmoving) 16%

RHCE (current tenant) 1%

Allwaste (former owner) 3%

Ashley8 (current owner) 5%

City of Charleston (former right-of-way holder) 0%

Key Holdings Relating to the BFPP Defense

The court analyzed in detail whether Ashley qualified as a BFPP under the 2002 Brownfields Amendments. It concluded that Ashley had satisfied five of the eight elements9 of the defense, but had failed to satisfy the remaining three. A number of the court’s conclusions are troubling for parties hoping to qualify for the BFPP defense in the future.

Whether All Disposals Occurred Before Taking Title. The District Court concluded that “disposals” were likely to have occurred after Ashley tore down the structures on the Allwaste parcel, leaving the sumps in place and allowing them to fill with rainwater. The court appeared to be particularly troubled by the fact that Ashley did not test under the concrete pads, sumps or trench to determine if the soil beneath these structures was contaminated. Ashley attempted to offer expert testimony that no disposals had occurred, but this testimony was stricken at trial. Accordingly, the court found that Ashley had not met its burden of proof10 that no disposals had occurred after it acquired the site. In other words, the new property owner must be prepared to prove a negative – that “no disposals” occurred.

It is particularly noteworthy that the court appeared to interpret “disposals” and “releases” differently. On a separate element of the defense – whether Ashley had provided all legally required notices – Ashley’s position was that no releases of hazardous substances had occurred that would have required notice to EPA or the state environmental agency. The court agreed that the record did not establish that any releases had occurred subsequent to Ashley’s acquisition of title. Accordingly, the court concluded that Ashley had satisfied its burden of proof on this element of the defense.

Whether the Purchaser Exercised Appropriate Care. Pointing to EPA’s Common Elements Guide11 and existing case law on “due care,” the court concluded that Ashley had not satisfied the “appropriate care” element of the BFPP defense. The court appeared to be particularly troubled by the fact that Ashley had not cleaned out and filled the sumps on the Allwaste parcel when it demolished the above-ground structures, but had instead left them exposed to the elements. Ashley’s decision to test, clean and fill the sumps in 2009 came too late, according to the court, to prevent possible releases. The court was also troubled by Ashley’s failure to prevent a debris pile from accumulating, to investigate the contents of that debris pile, or to remove the debris pile for over a year. The court considered these failures to be a lack of “appropriate care.” Ashley’s failure to maintain the crushed rock on the site, which was serving as a “cap” over much of the arsenic and lead contamination, was additional evidence of the lack of “appropriate care” in the court’s view.

Whether the Purchaser Was a Potentially Responsible Party or Affiliated With a Potentially Liable Party. In the aspect of the decision that is probably most troubling, the court concluded that Ashley had not met its burden of proof that it was not a PRP or affiliated with PRPs. First, apparently ignoring the language in section 9607(r) of the statute,12 it pointed to the fact that current owners and operators of a facility are liable for response costs, and that Ashley was the current owner of a majority of the site where hazardous materials were still leaching through the soils. Second, the court determined that Ashley’s efforts to dissuade EPA from recovering response costs from the Holcombe and Fair Parties, the prior owners whom Ashley had indemnified, revealed “just the sort of affiliation Congress intended to discourage.” Ashley II, slip op., at 103. This so-called affiliation precluded application of the BFPP defense.

What the Case May Mean for Future Brownfields Transactions

While Ashley II is binding case law only in the state of South Carolina, this decision is likely to have a significant chilling effect on future brownfields transactions throughout the country. If a sophisticated brownfields developer, which cooperated fully with the EPA and state environmental agency and which responsibly investigated the condition of the property, cannot qualify for the BFPP defense, then who can? Among other things, a number of determinations made by the court need to be clarified in future decisions, EPA guidance or congressional amendments to CERCLA if the BFPP defense is ever going to provide meaningful protection to brownfields redevelopers.

“Disposal.” The Ashley II court interpreted the phrase “disposal” to mean something more than “releases” or “threatened releases” that must be reported to regulatory officials.13 Pointing to the Fourth Circuit’s decision in Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837 (4th Cir. 1992), the court suggested that “disposal” does not have to include active involvement in dumping or placement of hazardous waste on a site, but could include spillage or leakage of the waste, or movement or dispersal of the waste. So, is passive migration of existing contamination through soil or groundwater enough to constitute “disposal”? If a broad interpretation of this phrase is upheld, in which the continued leakage or passive migration of contamination is sufficient to constitute “disposal,” then virtually no owner of a brownfields site will ever qualify for the BFPP defense. Surely, this cannot be what Congress intended when it enacted the BFPP defense.

Appropriate Care/Due Care. Despite finding earlier that no “releases” had occurred on the site after Ashley had acquired title, the court then determined that Ashley had not complied with the “appropriate care” elements of the defense. The “appropriate care” element of the defense is focused on stopping any continuing releases, preventing any threatened future releases, and preventing or limiting human, environmental or natural resource exposure to any previously released hazardous substance. In this regard, the court appears to have used the terms “disposals” and “releases” interchangeably. The court was influenced in part by the fact that Ashley’s consultant had identified the sumps and concrete pads as recognized environmental conditions (RECs). Is the REC designation (which simply means the presence or likely presence of hazardous substances or petroleum products under conditions that indicate an existing release, a past release, or a material threat of a release) now going to be enough to trigger heightened appropriate care requirements? What if the consultant had discussed these features but not designated them as a REC?

In light of the court’s broad interpretation of Ashley’s “appropriate care” obligation, it will behoove every brownfields redeveloper to examine its site carefully to determine whether there are any existing structures, waste piles or other areas of concern that may be contributing to continuing releases, threatened future releases, leakage or passive migration on the site and to address those threats promptly. While the site in question had been contaminated for more than 100 years, the court seemed particularly troubled by the fact that Ashley took a couple of years to sample, clean and fill underground sumps and to remove a debris waste pile, and that it failed to maintain the crushed rock as an adequate cover or cap on portions of the site.

The court also found that the former owners, the Holcombe and Fair Parties, had failed to exercise “due care” by waiting to put crushed stone on various parcels until those parcels had been leased, by failing to inform environmental authorities about the contamination and by failing to properly maintain certain stormwater detention ponds. Ashley II, slip op., at 88-89.

Affiliation Issue. Prospective purchasers will need to consider seriously whether they should release and indemnify a party who is clearly a PRP under CERCLA. It is not clear from the Ashley II decision whether every environmental indemnification might be considered to be proof of “affiliation” in future cases. Assuming that the mere existence of an environmental indemnity does not defeat the defense, the new owner should certainly refrain from taking any action with the regulators that might be construed as discouraging them from taking enforcement action against a PRP, even if that means that the new owner will be forced to honor an environmental indemnity that it has entered into in order to facilitate the sale.

Grading/Soil Movement. While not discussed in the sections of the opinion dealing with the BFPP defense, the court discusses elsewhere whether grading, excavating and proof rolling of contaminated soil could be sufficient to constitute “disposal,” thereby making the party engaging in those activities a PRP. The court concluded that it could. Ashley II, slip op., at 68-69. Most brownfields redevelopers will need to move potentially contaminated dirt around a site. If they do so responsibly, will this simple action be enough to void the BFPP defense? If so, virtually no one will ever qualify for the BFPP defense.

LURs/Institutional Controls. While the court concluded that Ashley had met its burden of proof on this element of the defense, it left open the question of what it means to be “in compliance with any land use restrictions” and to not impede “the effectiveness or integrity of any institutional controls.” Ashley’s environmental representative argued that there were no land use restrictions or unusual institutional controls in place on the site, and that it was in compliance with any controls that were being used. The court concluded that Ashley had met its burden of proof on this issue. This element of the defense could be more troublesome in future cases. For example, over the past couple of years, there has been a heated debate among the regulated community about the meaning of the term “land use restrictions,” and it seems reasonable to suggest that the court’s conclusion is consistent with the “narrow view” on this issue. In particular, the court did not consider the crushed stone, which constituted an engineering control on the site, to be a land use restriction.

Conclusion

Ashley II has now made it much more difficult to redevelop contaminated brownfields sites. It is clear that there are many potential pitfalls in trying to qualify for the defense, and that other PRPs and the court will probe every potential weakness in the defense. Congress, EPA and the courts should strongly consider what further guidance may be necessary to give the BFPP defense real teeth in order to satisfy its intended purpose. In the meantime, for anyone considering redevelopment of a seriously contaminated site, it would be prudent to obtain a “reasonable steps” letter from the EPA and to avoid incurring significant assessment and cleanup costs unless you are prepared to spend substantial sums litigating your entitlement to recoup those costs from the truly responsible parties.

Strategic Sourcing: Improved and expanded use (could save billions).

28. Precious Metals Primary Forms

43. Maintenance, Repair or Alteration of Real Property: Miscellaneous Buildings

45. Other Research and Development: Applied Research and Exploratory Development

49. Other Research and Development: Basic Research

50. Maintenance Repair and Rebuilding of Equipment: Communication, Detection and Coherent Radiation Equipment

Consent decree is unfair, inadequate, & unreasonable. Unmistakable existence of collusion, fraud, & tortious conduct aimed to injure the interests of non-settling defendants, and compounding the injury to the nation and the environment.

Stimulating Research Related to the Science of Broadening Participation

Jurisdictional Failings

Ed Rivera  on Article III courts

United States District Court = Administrative Article I (legislative)
or
Article IV (territorial) court

District Court of the United States = Article III (judicial) court

Brief on jurisdiction located  HERE

Federal vs. National  Federal vs. National

Jurisdiction Over Federal  Areas Within the States

Howard FreemanJURISDICTION

Seven Elements Of Jurisdiction

40 U.S.C.A.
                                  3112 Federal jurisdiction:  40 U.S.C.A. § 3112
(Formerly cited as 40 USCA § 255)

FEDERAL JURISDICTION    (alternative site)
JURISDICTION CASES:
SUPREME COURT
CIRCUIT COURT
STATE

Unmistakable indications of intent to take site & intent to use site & intent to take agency & site authority
Otherwise indicated appropriate overwhelming overlying priority emergent rights. Factor's objective:

Greater Stakeholder Involvement

Many stakeholders know how the current process for developing and applying risk assessments lacks credibility and transparency. That is because of failure to involve stakeholders adequately as active participants at appropriate points in the risk-assessment and decision-making process rather than as passive recipients of the results. Risk assessment has become the dominant public policy tool for making choices based on limited resources to protect public health and the environment.

We all know how important it is to not just know what your local hazards and risks are but to also practice what to do in the event of an emergency....


Nearly 11 million children in the developing world will have died this year from causes related to malnutrition. Hunger is the world's number one health risk, killing more people every year than AIDS, malaria and tuberculosis combined.

Merry Christmas, Happy New Year.

"The alarm bells are going off all over the place," "We are in a crisis and treating it like a process where we can dither away forever." Alden Meyer, the Union of Concerned Scientists

The U.S. National Science and Technology Council Subcommittee on Disaster Reduction (SDR) publication Grand Challenges for Disaster Reduction includes a set of Implementation Plans for various natural hazards, which provide further definitions and descriptions of these hazards. Research projects related to these hazards are among, but not limited to, those that would fit in the scope of Hazards SEES:

Coastal Inundation (http://www.sdr.gov/docs/185820_Coastal_FINAL.pdf)

Drought (http://www.sdr.gov/docs/185820_Drought_FINAL.pdf)

Earthquake (http://www.sdr.gov/docs/185820_Earthquake_FINAL.pdf)

Flood (http://www.sdr.gov/docs/185820_Flood_FINAL.pdf)

Heat Wave (http://www.sdr.gov/docs/185820_Heatwave_FINAL.pdf)

Hurricane (http://www.sdr.gov/docs/185820_Hurricane_FINAL.pdf)

Landslide and Debris Flow (http://www.sdr.gov/docs/185820_Landslide_FINAL.pdf)

Space Weather (http://www.sdr.gov/docs/185820_Space_FINAL.pdf)

Tornado (http://www.sdr.gov/docs/185820_Tornado_FINAL.pdf)

Tsunami (http://www.sdr.gov/docs/185820_Tsunami_FINAL.pdf)

Volcano (http://www.sdr.gov/docs/185820_Volcano_FINAL.pdf)

Wildland Fire (http://www.sdr.gov/docs/185820_Wildfire_FINAL.pdf)

Winter Storm (http://www.sdr.gov/docs/185820_Winter_FINAL.pdf)

severe
                                                          storm


Tributary named in honor of the “offerings of Christ.”

The only entry missing from Spanish army officer Jose Gabriel Maraga’s diary, which was kept from Sept. 25 through Oct. 23, 1808, was the entry for Oct. 8 – the day that he "discovered" the Sacramento River.

Notwithstanding any provision of the SOW, the United States and the State retain all of their access authorities and rights, as well as all of their rights to require land/water use restrictions, including enforcement authorities related thereto, under CERCLA, RCRA, and any other applicable federal or State law, statutes, or regulations.  (NONE!)

Iron Mountain Mines is currently seeking an earthen dam hazardous waste containment expert on the siting of class A and B disposal cells in FEMA zone D,E,F, seismic locations within 1 mile to directly upon known active faults.
With a particular focus on the arranger liability FAILING Applicable or Relevant and Appropriate Requirements 
(Void for vagueness & illegitimate animus; bill of attainder crime of infamy ex post facto law. abolish CERCLA.)
If there were ever a time for Congress to step in and resolve this issue once and for all, it is now.

The term "United States", when used in its territorial meaning, encompasses the areas of land defined in Article I, Section 8, Clause 17 (1:8:17) and 4:3:2, nothing more. In this respect, the "United States" is a separate Nation which is foreign with respect to the States united by and under the Constitution, because the "United States" as such has never applied for admission to the Union of States known as the "United States of America". Accordingly, statutory "citizens of the United States" who are "subject to the jurisdiction thereof" are defined in the wording of the so called 14th Amendment and of The Civil Rights Acts. At best, this so-called Amendment is a "private Act" rather than a public act which designates a class of people who are unique to the territorial jurisdiction of the District of Columbia, the Federal Territories and Possessions, and the land which has been ceded by the Legislatures of the 50 States to the foreign nation-state of the "United States" for forts, magazines, arsenals, dock-yards and "other needful buildings" (see 1:8:17 and 4:3:2)

CHAPTER 62, 1871
16 United States Statutes at Large 419
FORTY FIRST CONGRESS SESSION III.
CHAPTER 62, 1871 CHAP. LXII. --
An act to provide a Government for the District of Columbia.

Be it enacted by the Senate and House of Representatives of the United States in Congress assembled, That all that part of the territory of the United States included within the limits of the District of Columbia be, and the same is hereby, created into a government by the name of the District of Columbia, by which name it is hereby constituted a body corporate for municipal purposes, and may contract and be contracted with, sue and be sued, plead and be impleaded, have a seal, and exercise all other powers of a municipal corporation not inconsistent with the Constitution and laws of the United States and the provisions of this act.

Title 5 U.S.C. §556(d)
"When jurisdiction is challenged the burden of proof is on the government."

"No sanction can be imposed absent proof of jurisdiction."
"Once challenged, jurisdiction cannot be ´assumed´, it must be proved to exist!"
Stanard v. Olesen, 74 S.Ct. 768

"The law requires PROOF OF JURISDICTION to appear on the Record of the administrative agency and all administrative proceedings." Hagans v. Lavine, 415 U.S. 533

Setting targets: Senior leadership to facilitate change “in the light of the character and value of the property involved.”

Suppose you were an idiot – and suppose you were a member of Congress. But I repeat myself –Will Rogers

Ripening Across the Country

Prohibition times-up!
Is there buzz in your community?

Taking a little bit too much time to stand up and "take responsibility as arranger of this mess." 

It's not easy to manage a Superfund site, but it's also not a piece of cake to own or lease

Suggestions for other defendants with expectations for the elusive benefits of CERCLA.

sure?
Liability under CERCLA, (otherwise known as the Superfund statute) is strict. Divisibility offered hope,
but the lower courts have been reluctant to adopt it. Both defendants and their insurers are wondering why?
(REQUEST FOR A ROLL OF COMMON SENSE ISSUE?)
Justice Thomas in U.S. v. Atlantic Research Corp. stated "[w]e assume without deciding that § 107(a) provides for joint and several liability.” The Supreme Court and many other judicial bodies have repeatedly stated that if Congress has deleted a proposal for a particular rule or remedy, and did so as a part of a legislative compromise, that deletion should be recognized and given effect by the courts. So far this rule of statutory construction has been disregarded.

River wrangles unresolved: Leadership Disaster


“[t]he Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”

Every time water washes over hard surfaces, it picks up pollutants. Even an area the size of the average homeowner’s roof contributes about 35,000 gallons of runoff each year in the Northwest. And that runoff ends up in the nearest waterway — not the nearest water treatment facility.

“Approximately 50 percent of the region believes that stormwater is treated, is captured and conveyed to a treatment plant of some type. When in fact, this doesn’t take place. Nearly all of this water goes off totally untreated,” says Giles Pettifor, who is part of the municipal stormwater permit team for King County’s Department of Natural Resources and Parks.

How did we get here?

Pettifor explains that we have to remember that governments didn’t require effective stormwater controls on development until 1990, after amendments were made in 1987 to the Clean Water Act.

“If you look at regional development, about two thirds of the region was developed prior to that time period,” Pettifor says. “So the vast majority of the land surface around here has no controls on it.”

Clean Water: The Next Act - A Radio Special

Dec. 27, 2012 | EarthFix

Meet Colin Bailey. He is the executive director of Environmental Justice Coalition for Water. He took EarthFix’s Ashley Ahearn to the confluence of the Sacramento and American Rivers to talk about the Clean Water Act and environmental justice. “Without the Clean Water Act there’s no doubt that we would not be as effective in our work,” he says. “It is an important tool for the communities that we serve.”

Clean Water Act’s Anti-Pollution Goals Prove Elusive

July 18, 2012 | EarthFix/InvestigateWest

For at least the last four years, this automobile shredder and metal recycler has dumped more pollutants into the river than allowed under the federal Clean Water Act, government records show. The levels have ranged higher than 250 times above what’s known to harm salmon that migrate through the river.

The Seattle Iron & Metals story is emblematic of widespread failures in the nation’s efforts to end the toxic pollution that modern life has unleashed on America’s rivers, lakes and bays. The Clean Water Act, passed by a large bipartisan majority of Congress 40 years ago, was intended to eliminate water pollution by 1985. Congress declared: “It is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited.” 

Yet in the Pacific Northwest, as across the nation, the Clean Water Act has fallen far short of its goals. A majority of Northwest waterways fail to meet federally approved water-quality standards. An investigation by EarthFix and InvestigateWest reveals: 

  • Whole categories of polluters are effectively exempt from penalties when they dump pollutants illegally. This affects thousands of facilities. 

  • Violations of the Clean Water Act in the Northwest occur routinely, yet citations and financial penalties are relatively rare.  

  • Government bodies are among the most prolific violators, especially those that manage aging sewage-treatment plants and stormwater pipes that dump polluted rainwater runoff directly into waterways. 

IMPAIRED WATERS

Partially as a result of lax enforcement, large proportions of Pacific Northwest waterways violate water quality standards set under the Clean Water Act. These waterways, deemed “impaired,” are unfit for their intended uses, including swimming, fishing, drinking, boating and giving a place to live to fish and wild animals.  In Washington, about 80 percent of tested rivers and streams are impaired. That figure is 67 percent in Oregon and 55 percent in Idaho. Nationwide the figure is estimated at nearly 40 percent.

And these are the only the waters that have been tested. None of the states in the Pacific Northwest has fully checked out all their waterways. 

According to the latest figures available from EPA, Washington has fully assessed only 3 percent of its rivers and streams. Oregon has evaluated 40 percent of its rivers and streams, and Idaho has appraised 60 percent.  (Because the states have different systems for judging what constitutes a full assessment of a waterway, those numbers are not directly comparable.)

Failure to assess waterways matters. The quality of a body of water is used to determine how much pollution it can handle: the cleaner a body of water, the more likely additional pollution can be allowed. 

These pollution assessments are used to set the discharge limits for companies like Seattle Iron & Metals, and for cities and others holding permits permit to discharge pollution.

In a recent interview with EarthFix, the EPA’s top administrator, Lisa Jackson, said lack of assessment remains an issue nationally. One-third of the nation’s waterways that are supposed to be “fishable and swimmable” are not, she said. 

“And that’s just a third of the ones we know about,” Jackson said. “We don’t assess all our waters.”

Cities And Towns Still Struggle To Control Sewage 40 Years After The Clean Water Act

Oct. 2, 2012 | EarthFix

To help communities build and upgrade wastewater collection and treatment systems in the years after the Clean Water Act’s passage, the federal government handed out billions of dollars in grants. But most of those federal grants are gone, replaced by loans. At the same time, those federally subsidized municipal wastewater systems have aged.

When wastewater treatment plants fail, the environment takes the hit, and so do the people who want to use public waters for drinking water, food or recreation. 

These days, local governments’ budgets won’t cover the improvements needed to control pollution discharges. Many are coping with: 

  • Aging sewer lines
  • Aging or under-capacity wastewater treatment plants
  • Proper plant operation and maintenance
  • New water quality regulations
  • A lack of financial resources

State and federal records show that Washington’s 223 cities racked up more than 1,500 pollution discharge violations in the past two years. Idaho’s 124 cities tallied more than 1,700 in the past three years. Comparable data are not readily available for Oregon, but its 49 largest cities had at least 150 discharge violations during the past three years. 

Big city issues

Over the past several decades, metro areas like Portland and Seattle have spent billions of dollars trying to get their sewage under control. Many of their problems have been linked to combined sewer overflows, or CSOs

The overflows are a function of sewers built decades ago to carry both sewage and stormwater. When heavy rains fall, the sudden surge of water can overpower the system and send raw sewage directly into the surface water. That worked well until about the 1950s, when people decided it wasn’t a good idea to send raw sewage into their rivers and streams.

Fixing CSOs has been an expensive undertaking.

Federal level realities

The federal government recognized the problems small communities were having meeting their wastewater pollution permits long ago. In 1992, the U.S. General Accounting Office reviewed the outcomes of making the federal grant program a revolving loan program. The GAO report concluded that the loan program:

  • “will not generate nearly enough funds to close the tremendous gap between wastewater treatment needs and available resources.”
  • will pose particular problems for small communities, many of whom cannot repay loans at any interest rate and have difficulty competing with larger communities for loans.

In 2009, the U.S. Environmental Protection Agency estimated the gap between future needs and current spending on wastewater infrastructure of $150 billion to $400 billion for the entire country. The same year, the American Society of Civil Engineers gave the nation a “D-“ for its wastewater infrastructure.

Polluting The Water With Toothpaste, Shampoo, And Drugs

Sept. 12, 2012 | OPB

There are 126 toxic chemicals on the Clean Water Act priority pollutant list. But not a single pollutant has been added to that list since 1977.

So there are no legal limits for most of the household chemicals that are showing up in the water today. Most of them haven’t been studied enough to know how much is too much to put in a waterway.

EPA is actually required to regulate all pollutants under the Clean Water Act – even the ones that aren’t on the priority pollutant list. But the agency has been slow to act on that part of the law.

How We Got Into Such A Mess With Stormwater

Oct. 17, 2012 | KCTS9

Stormwater is a toxic cocktail of sediment, grease, road grime, tire wear and any litter small enough to slip into storm drains.

And that’s just what can be seen. There’s much more.

Microscopic particles of heavy metals like zinc and copper are commonly found in urban runoff. There’s also oil and petroleum-based hydrocarbons. Fertilizers and pesticides also wash off lawns and into waterways. Even pet excrement contributes a significant amount of bacteria to urban creeks and streams.

Thursday marks the 40th anniversary of the Clean Water Act. When it first took effect, stormwater pollution was not the top priority. What’s known as “point source pollution” — dumping of toxic pollutants from a particular, often industrial site — was the first focus. But in the decades since, stormwater pollution, also known as “non-point source pollution,” has taken the lead when it comes to carrying the most contaminants to U.S. waterways.

Stormwater is a toxic cocktail of sediment, grease, road grime, tire wear and any litter small enough to slip into storm drains.

And that’s just what can be seen. There’s much more.

Microscopic particles of heavy metals like zinc and copper are commonly found in urban runoff. There’s also oil and petroleum-based hydrocarbons. Fertilizers and pesticides also wash off lawns and into waterways. Even pet excrement contributes a significant amount of bacteria to urban creeks and streams.

Thursday marks the 40th anniversary of the Clean Water Act. When it first took effect, stormwater pollution was not the top priority. What’s known as “point source pollution” — dumping of toxic pollutants from a particular, often industrial site — was the first focus. But in the decades since, stormwater pollution, also known as “non-point source pollution,” has taken the lead when it comes to carrying the most contaminants to U.S. waterways.

Clean Water Act’s Anti-Pollution Goals Prove Elusive

July 18, 2012 | EarthFix/InvestigateWest
Much of the pollution on Seattle's Duwamish River comes from decades ago, but Seattle Iron and Metal, a metal recycler, is one of the ongoing present-day polluters of the river. | credit: Katie Campbell | rollover image for more

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Beside Seattle’s notoriously polluted Duwamish River, an excavator scoops up small pieces of waste metal and slings them onto a rusty mountain at Seattle Iron & Metals Corp.  A pile of flattened cars and trucks squats nearby amid vast sheets of scrap metal.

For at least the last four years, this automobile shredder and metal recycler has dumped more pollutants into the river than allowed under the federal Clean Water Act, government records show. The levels have ranged higher than 250 times above what’s known to harm salmon that migrate through the river. 

The company, which declined to comment for this story, has reported its violations to the government, as required by law. But instead of punishing the metal recycler, the Washington Department of Ecology encouraged the company to reduce its pollution levels.  The agency also searched for a legal way to make Seattle Iron & Metals’ pollution limits more lenient, and says it plans to relax them soon.

The Seattle Iron & Metals story is emblematic of widespread failures in the nation’s efforts to end the toxic pollution that modern life has unleashed on America’s rivers, lakes and bays. The Clean Water Act, passed by a large bipartisan majority of Congress 40 years ago, was intended to eliminate water pollution by 1985. Congress declared: “It is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited.” 

Yet in the Pacific Northwest, as across the nation, the Clean Water Act has fallen far short of its goals. A majority of Northwest waterways fail to meet federally approved water-quality standards. An investigation by EarthFix and InvestigateWest reveals: 

  • Whole categories of polluters are effectively exempt from penalties when they dump pollutants illegally. This affects thousands of facilities. 

  • Violations of the Clean Water Act in the Northwest occur routinely, yet citations and financial penalties are relatively rare.  

  • Government bodies are among the most prolific violators, especially those that manage aging sewage-treatment plants and stormwater pipes that dump polluted rainwater runoff directly into waterways. 

The U.S. Environmental Protection Agency, which is ultimately responsible for enforcing the Clean Water Act, has handed over that responsibility to 46 of the 50 states, including Washington and Oregon. In Idaho, the EPA handles that job. 

(Ashley Ahearn from EarthFix/KUOW reports from the Duwamish River.)

IMPAIRED WATERS

Partially as a result of lax enforcement, large proportions of Pacific Northwest waterways violate water quality standards set under the Clean Water Act. These waterways, deemed “impaired,” are unfit for their intended uses, including swimming, fishing, drinking, boating and giving a place to live to fish and wild animals.  In Washington, about 80 percent of tested rivers and streams are impaired. That figure is 67 percent in Oregon and 55 percent in Idaho. Nationwide the figure is estimated at nearly 40 percent.

And these are the only the waters that have been tested. None of the states in the Pacific Northwest has fully checked out all their waterways. 

According to the latest figures available from EPA, Washington has fully assessed only 3 percent of its rivers and streams. Oregon has evaluated 40 percent of its rivers and streams, and Idaho has appraised 60 percent.  (Because the states have different systems for judging what constitutes a full assessment of a waterway, those numbers are not directly comparable.)

Failure to assess waterways matters. The quality of a body of water is used to determine how much pollution it can handle: the cleaner a body of water, the more likely additional pollution can be allowed. 

These pollution assessments are used to set the discharge limits for companies like Seattle Iron & Metals, and for cities and others holding permits permit to discharge pollution.

In a recent interview with EarthFix, the EPA’s top administrator, Lisa Jackson, said lack of assessment remains an issue nationally. One-third of the nation’s waterways that are supposed to be “fishable and swimmable” are not, she said. 

“And that’s just a third of the ones we know about,” Jackson said. “We don’t assess all our waters.” 


(EPA Administrator Lisa Jackson in a May 4 interview with Bonnie Stewart of EarthFix/OPB.)

LICENSES TO POLLUTE

Ecotrope

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OPB’s Cassandra Profita is busy this summer blogging about water in the Northwest. Keep up with her and all her findings at Ecotrope’s Clean Water: The Next Act.

Instead of ending pollution by 1985, as Congress envisioned, the Clean Water Act has evolved into a system that makes it legal to pollute. 

It didn’t start out that way. In the two decades that followed the law’s passage, it curtailed the worst toxic pollution of industry and government. “The water quality in Idaho – and this is true nationally – is way better,” said Justin Hayes, program director of the Idaho Conservation League.  “The Clean Water Act has had amazing beneficial impacts.”

In Oregon, regulators point to extensive water quality improvements for the Willamette and Tualatin rivers. The Willamette, once so fouled by industrial wastes that it became a Superfund site, has been cleaned up enough that this weekend it will be the site of the annual Portland Bridge Swim, a race that passes under all 11 bridges over the river in the city.

“Do we have fishable and swimmable waters everywhere that was set in the goal? Well, not everywhere. But we certainly have improved our water bodies a lot,” said Dick Pedersen, director of Oregon’s Department of Environmental Quality. “… But we still have a long way to go.”

Here’s how the Clean Water Act was supposed to work: Each polluter gets a permit – a legal right to dump wastewater with set concentrations of pollutants. Then, every five years when the permit has to be renewed, lower pollution limits made possible by updated technologies were supposed to kick in. Eventually, pollution would be eliminated. 

“Well, that turned out to be not feasible, or possible or practical,” Pedersen said.   Four decades later, Pedersen’s department and regulators in other states are having trouble simply keeping up with permit renewal cycles, which means dischargers continue to pollute based on out-of-date permits. 

According to an Oregon DEQ report, for example, more than two-fifths of polluters were operating on out-of-date permits at the end of 2011.

Clean Water Act Violators: 2009-2012

CWA violators map legend

POLLUTERS ESCAPE SCRUTINY

Not only are hundreds of permits out of date in the Pacific Northwest, some categories of polluters aren’t even monitored for violations. 

Regulators in Oregon have stopped reviewing some reports that companies and institutions have to file detailing the levels of pollution in their discharges. These reports are supposed to alert regulators to violations.

A lack of resources has affected the ability of regulators to adequately review all discharge reports, DEQ’s Pedersen said. “So we have to triage and prioritize what we do with the fewer staff that we have.” 

EarthFix Poll: Does Clean Water Matter?

A new public opinion poll finds that water quality ranks as Northwesterners’ top environmental concern. Davis, Hibbitts & Midghall Research asked 1,200 residents in Washington, Idaho and Oregon about their environmental concerns. Sixty percent said they worried about drinking water. Continue reading…

In the agency’s northwest office, the loss of one worker left the equivalent of 3.5 full-time employees to review the discharge reports for more than 1,600 pollution permits. The same 3.5 employees also have to develop new permits, renew expiring permits, conduct on-site inspections and write and follow through on enforcement actions. 

As a result of the staff loss, regulators in that office quit reviewing the discharge reports filed by 163 permit holders. Those included vineyards, fisheries and the sewage treatment plants of a few small cities. 

Similar staffing issues have stymied Washington’s Ecology Department enforcement efforts. Two years ago it stopped pursuing violations that come to light in discharge reports covered by certain classes of pollution permits, said Nancy Kmet, an Ecology environmental engineer.  

The polluters who are getting a free pass include boatyards, gravel miners, fruit packers and industrial facilities of various stripes – more than 4,400 companies, Ecology records indicate. 

“We don’t have the staff to address thousands of violations,” Kmet said. “We do the best we can.” 

PERMIT VIOLATIONS

Even when regulators do flag polluters who are violating their permits, government databases indicate they seldom face fines or enforcement action.  Over the last 3½ years in Washington, only 55, or about 10 percent, of the 572 polluters who reported dumping in excess of legal limits faced formal enforcement action, and just 6 percent faced fines, records show. In Idaho, the figures were 20 percent and 11 percent.

Comparable figures aren’t readily available in Oregon because of the state’s lack of computerized records.  However, information is available about how polluters classified as “major” compare in the three states. According to the EPA’s Environmental Compliance History Online database and Washington’s Permit and Reporting Information System:

  • In Oregon, 64 percent of the facilities reported violating limits on how much they could dump, but no more than 18 percent faced formal enforcement action such as an administrative order or a fine. 

  • In Idaho, 52 percent of the polluters violated their permits, but no more than 22 percent faced binding enforcement action. 

  • In Washington, 74 percent violated the permits but only 18 percent faced binding enforcement action.

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State regulators say they are too short-staffed to go after every violation – and that they don’t want to move immediately to punitive measures when a more collaborative approach can bring many polluters into line.

“You can fine them a whole bunch of money. Another way is you can work with them and try to bring them into compliance,” Pedersen said. 

VIOLATIONS IGNORED

The EPA has called states out for poor enforcement.  The federal agency’s inspector general reported in December, 2011 that state enforcement programs for the Clean Water Act and two other environmental laws “are underperforming,” remarking “performance is low across the board.”

“Noncompliance is high and the level of enforcement is low,” inspectors reported. “EPA does not consistently hold states accountable for meeting enforcement standards, has not set clear and consistent national benchmarks, and does not act effectively to curtail weak and inconsistent enforcement by states.”

It’s a nationwide problem, affecting even major polluters classified as being “significant non-compliers.”  In a 2007 report, EPA auditors who reviewed 44 of the approximately 3,600 major factories, sewage-treatment plants and other facilities regulated under the Clean Water Act nationwide found long delays in enforcement over a three-year period. That tiny fraction of the nation’s polluters dumped 51 million pounds more pollutants than allowed under the law over the three-year period, the EPA Inspector General reported

In the Northwest, “We are having no trouble finding people in gross violation of their permits,” said Chris Wilke, executive director of the Puget Soundkeeper Alliance. “You pull 20 files and you may easily find five or ten that are in violation.”

Chris Wilke
Chris Wilke (credit: Katie Campbell)

Wilke’s Seattle-based environmental group files lawsuits against polluters alleging violations of the Clean Water Act. Last week it sued Seattle Iron & Metals Corp. 

Beyond these suits to enforce the Clean Water Act on specific polluters, environmentalists also have  repeatedly and successfully filed broader lawsuits in all three states claiming that the government is failing to carry out the law. Such suits have forced states to adopt stricter water-quality standards and to mandate clean-up plans, for example. But even those changes have not been enough to bring pollution under control.

State regulators know there are problems. 

Over the last two decades Washington’s Department of Ecology has been getting more money and staff for its water-quality division, with its budget nearly tripling since 1994. However, over the same period, the number of permits under its watch has greatly increased.

Those budget increases also came with additional responsibilities, including a lot of emphasis on controlling polluted rainwater runoff, said Don Seeberger, deputy program manager of Ecology’s water-quality division. Yet the agency is partly dependent on the very businesses that it regulates.  Permit fees help fund government oversight, and those fees drop when recessions hit. 

“We know that the more inspections you do, the better the compliance with the regulations,” Seeberger said. “It’s not whether we have the work. It’s whether we have the money.”   Understaffing is not the only factor driving the underenforcement noted by EPA inspectors, though.

Even with all the staffers he could want, “I think it would be a mistake to go after every single violation, at least until you understand the violation,” said Kelly Susewind, manager of the Washington Ecology Department’s clean-water program.

Susewind said the agency will start going after violations of dumping permits identified in the discharge reports at some point. When? “I can’t give you a date, but it’s not far in the future,” he said. Pressed for a time frame, Susewind said, “The next few years.”

THE TOLERANT APPROACH

Instead of using their punitive enforcement tools right away, both Oregon and Washington have chosen a friendlier path.

Susewind said the reason relatively few Clean Water Act violators face fines or other enforcement actions is that regulators have opted to first offer violators technical assistance.  Next comes what the agency calls education. And if that doesn’t work, a lawbreaker may get a nasty letter from the agency, classified as an “informal enforcement action.” 

Only a small number of facilities require formal enforcement efforts, Susewind said. That means issuing a citation, and possibly a fine.  But Ecology really doesn’t want to see that happen, he said, because most polluters want to do the right thing.

While a violation is ongoing, Ecology tries to “understand the circumstances that led to that (violation),” Susewind said. “Sometimes it’s something that’s beyond someone’s control.  Is it something they’ve corrected that we’re confident won’t happen again? 

“If it’s an ongoing violation, are they taking all the steps necessary to eliminate it? And if they aren’t complying and aren’t on a path to comply, then we step to our next resort, which is formal penalties.”

Oregon regulators have adopted a similar philosophy, first working with permit holders to help them comply with their limits. But in cases where the permit holders know what to do, that changes.

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“If it’s just poor operation and not meeting conditions, then I don’t think we should have a whole lot of patience on that at all,” Pedersen said. 

John Ledger, vice president of Associated Oregon Industries, said Oregon’s enforcement process is not unreasonable. Regulators go through a long series of decisions before taking action, he said.

“Willful violations are looked at askance by everybody,” he said. “It’s just like driving a car, he said. No one likes a reckless driver.” 

GOVERNMENT IS PART OF THE PROBLEM

While many of the worst industrial polluters were brought under control decades ago, it’s government-run facilities that turn up more and more as the worst water polluters. 

The North Idaho Correctional Institution, for example, racked up 4,048 violations of the Clean Water Act in just 4 ½ years, according to EPA records. 

The violations are largely the result of the prison’s antiquated sewage treatment system. The facility, built on Radar Road, started life as a Cold War-inspired radar installation built by the U.S. Air Force in 1956. It was finished in 1959, but deemed obsolete by the mid-60s. Then in 1974 the state grabbed it for a minimum-security prison.

Today, the facility’s sewage treatment system is in such disrepair that state officials say they may have to spend up to $6 million to fix it.  

The prison near Cottonwood, Idaho, houses up to 414 lawbreakers, while breaking the law itself by dumping sewage into an unnamed stream that flows into Lawyer Creek. 

To satisfy the EPA, the Idaho Department of Corrections in April agreed to study the system to figure out what’s wrong. 

“EPA has been great to work with,” said Josh Tewalt, deputy director of the Idaho Department of Corrections. 

Although required to get a permit under the 1972 Clean Water Act to dump sewage, the prison did not do so until 2004. Tewalt said that permit – still in effect even though it was to have expired in 2009 – set pollution limits that were too strict.

“No one is killing fish. Are we in violation of our permit? Yes,” Tewalt said. “Are we talking about severe environmental degradation and killing fish? Absolutely not.”

Lawyer Creek, where the prison’s discharge ends up, violates Clean Water Act standards for fecal coliform, ammonia and nutrients, according to EPA records. Those pollutants often come from sewage and are harmful to coldwater fish. The EPA classified the creek as “impaired” for swimming and other direct contact by people. 

“The bottom line for exceeding a permit is, it’s against the law,” said Sara Arkle of the Idaho Conservation League. “If everybody were allowed to exceed their limits, we’d have really dirty water.”   In May the state signed a consent agreement that obligates the prison to study the situation and submit a plan to fix the problems by April 1, 2014.

Robert Grandinetti, a U.S. EPA compliance official, said his agency cannot explain why this facility is only now addressing problems that presumably date back many years. 

“I can’t give you a great reason why it took so long other than they weren’t a priority,” Grandinetti said.    A recent count of facilities with a double-digit number of dumping violations in Idaho since January 2009 showed that 20 of the 25 were government-run.

In Seattle, the government-run King County International Airport, also known as Boeing Field, dumps its stormwater runoff into the Duwamish just upstream from Seattle Iron & Metal. It’s also one of the latest targets of lawsuits by the Puget Soundkeeper organization. The pipe carries stormwater, the foul rainwater runoff that flows off hard surfaces such as streets, parking lots – and in this case, tarmac – that regulators and others agree is one of the most widespread and intractable of the nation’s water-pollution problems.

“We‘ve seen it puking muddy water. We’ve seen it discharging orange water,” says Wilke of Soundkeeper.

Rochelle Ogershok, a spokeswoman for King County, wrote in response:

“King County Airport staff work diligently to comply with all requirements of the Clean Water Act … Even before the lawsuit was filed, the airport was already in the process of installing over $2 million in additional capital improvements to address stormwater runoff.”

ENDING POLLUTION BY PERMITTING IT

Environmentalists contend there are several legal loopholes in the way the Clean Water Act is being enforced that have hampered their efforts to make waterways more pristine. One of those loopholes is pertinent to the Seattle Iron & Metals case. 

The company has been dumping zinc and copper — two highly toxic heavy metals – into a stream already so polluted that it’s been declared a Superfund site.

Both metals are harmful to fish.  Even at trace concentrations, copper stuns salmon, causing them to lose their crucial sense of smell. Zinc leads to altered behavior, changes in body chemistry, impaired reproduction and reduced growth. The amount of copper the company reported dumping into the Duwamish was up to 18 times the level that affects salmon. For zinc, it was more than 260 times what’s known to harm the fish. 

Washington’s Ecology Department issued a violation notice to Seattle Iron & Metal in August 2008 – eight months after the company first reported violating its permit, records show. That was nearly four years ago. Time passed, and the violations continued.

Now Ecology is proposing a solution: The agency plans to grant the company what’s known as a “mixing zone,” said Ecology’s Ed Abbasi, the staffer assigned to the case. 

Basically, that means that materials can be dumped in toxic amounts, as long as regulators are convinced the effects of dilution will make it non-toxic by the time it reaches a specified distance from the dump site. Mixing zones are controversial, since they are not explicitly permitted in the Clean Water Act, but rather by an interpretation of the law by EPA. 

Records show the company asked for a mixing zone in 2002, but it was not granted. 

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In more recent years the company’s pollution levels have remained high, Abbasi acknowledged. However, the company worked to reduce pollution in accordance with Abbasi’s recommendations. That, he said, explains why he did not level any fines. It also made the company eligible for a mixing zone. 

“They have been improving their discharge,” Abbasi said. “They are under an order to make improvements.”  

He said the new permit, which he expects to issue later this year, would reduce the company’s zinc discharges to about one-sixth the highs the company was seeing in the past. Under the zinc limit Abbasi said he plans to impose, the company’s zinc discharge would still be 45 times higher than levels studies show harm fish.

Seattle Iron & Metals is only one of about 6,000 facilities permitted to dump pollution into Washington’s waters.  

Just as Puget Soundkeeper Association has sued Seattle Iron & Metals and numerous other businesses in the Puget Sound area, Columbia Riverkeeper filed lawsuits against a number of firms on both sides of the Columbia River. The Hood River, Ore.,-based environmental group has used the citizen’s suit provisions of the Clean Water act to go after log yards, scrap yards, plastics manufacturers, truck yards and, memorably, a shipping terminal where lots of bulk chemicals including petroleum coke and potash were stored in the open so that pollutants were carried away in rainwater runoff.

Columbia Riverkeeper’s director, Brett VandenHeuvel, said lawsuits like these are a measure of how much progress remains for the Clean Water Act to work as it was intended.    “In 1972 we were going to stop using our rivers as dumping grounds and we’re nowhere near there,” VandenHeuvel said.  “State and federal regulators don’t even try to meet that goal any more and that’s a problem.

“That’s a colossal failure.” 

Clarification: July 25, 2012. This story was updated to reflect that the states have different criteria for considering a waterway fully assessed.

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InvestigateWest is a non-profit newsroom based in Seattle that covers the Pacific Northwest. EarthFix is a public media project of seven NPR and PBS stations in Washington, Oregon, and Idaho.

There’s more to come in our series, “Clean Water: The Next Act:”

  • Development-related pollution in the form of rainwater runoff poses an increasing threat to water quality.

  • Clean water isn’t just under threat from big facilities, urban development, and runoff from suburban sprawl. In the rural Northwest, logging and farming practices are degrading our rivers and streams.

  • Waterways increasingly contain potentially dangerous residues of the lotions, potions and pills that keep us well and clean and smelling nice – a threat the Clean Water Act was never intended to stem.

  • Sewage treatment remains a major source of water pollution, with increasing numbers of governments struggling financially and beset by aging wastewaster treatment facilities. 

(This story was reported and written by Robert McClure with Bonnie Stewart. The map was produced by Jason Alcorn with Bonnie Stewart. Audio report by Ashley Ahearn. Photos and video by Katie Campbell.)

© 2012 EarthFix/InvestigateWest

GRAND PRIZE FOR SMALL PROJECTS: INNOVATIVE PHYTOREMEDIATION PROCESS UTILIZES LANDFILL LEACHATE AS A RESOURCE IN LIEU OF TRADITIONAL DISPOSAL AS A WASTE
American Academy of Environmental Engineers (AAEE), Excellence in Environmental Engineering Awards, 2012

The AAEE recognized Leggette, Brashears & Graham, Inc. for the first-ever use of vetiver plants for landfill leachate treatment in the western hemisphere. The standard for leachate disposal (load, haul, and dump) has been expanded by the concept of utilizing leachate as a resource. The use of vetiver for leachate phytoremediation was further advanced by incorporating a specialized subsurface drip-irrigation system to distribute leachate year-round. Details at http://www.aaee.net/E32012GPSmallProjects.php.

AIR FORCE STANDS UP SINGLE UNIT TO EXECUTE GLOBAL CE OPERATIONS
Briggs, M.
Air Force Civil Engineer Center Public Affairs News Release, 2 Oct 2012

Effective 1 October 2012, the Air Force Center for Engineering and the Environment (AFCEE) and Air Force Real Property Agency merged with the Air Force Civil Engineer Support Agency to form the Air Force Civil Engineer Center (AFCEC), a new civil engineering field operating agency. AFCEC functions encompass the areas of construction, energy, environment, housing, operations, planning, real property, and readiness and emergency management. The Environmental Center of Excellence will operate in the Kelly Annex at Joint Base San Antonio-Lackland. http://www.af.mil/news/story.asp?id=123320540
Additionally, the Environment Operations and Services (EOS) effort, which addresses environmental needs at Air Force installations, is on hold as a result of the AFCEC standup, pending further review by the government. https://www.fbo.gov/notices/d3b225c8b8319c37655ac16b911d6996

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Microscopic particles of heavy metals like zinc and copper are commonly found in urban runoff.

Hatching Salmon in the Classroom For Hands-on Learning

the chance to learn about biology through an observation-based approach.

Ensure Free Movement of People and Commerce. 

Joint & Several Trespassers Ejectment

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"Dam failures are still concerns". former EPA Project Manager Rick Sugarek
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$7,074,500,000 – treble damages = $21,223,500,000 U.S.A. liability

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For the heads of executive departments and agencies; another hard look essential to facilitating:
EPA begins new review of Superfund cleanup required in cases where wastes are managed on-site.

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The U.S. Environmental Protection Agency is kicking off, stymied by a lack of reliable data.

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Next-Generation National Nanotechnology Infrastructure Network (NG NNIN)


Program Solicitation
NSF 13-521

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National Science Foundation

Directorate for Engineering

Directorate for Mathematical & Physical Sciences

Directorate for Computer & Information Science & Engineering

Directorate for Biological Sciences

Directorate for Geosciences

Directorate for Social, Behavioral & Economic Sciences

Directorate for Education & Human Resources

Office of International Science and Engineering

Letter of Intent Due Date(s) (required) (due by 5 p.m. proposer's local time):

April 01, 2013

Full Proposal Deadline(s) (due by 5 p.m. proposer's local time):

May 13, 2013

IMPORTANT INFORMATION AND REVISION NOTES

A revised version of the NSF Proposal & Award Policies & Procedures Guide (PAPPG), NSF 13-1, was issued on October 4, 2012 and is effective for proposals submitted, or due, on or after January 14, 2013. Please be advised that the guidelines contained in NSF 13-1 apply to proposals submitted in response to this funding opportunity. Proposers who opt to submit prior to January 14, 2013, must also follow the guidelines contained in NSF 13-1.

Please be aware that significant changes have been made to the PAPPG to implement revised merit review criteria based on the National Science Board (NSB) report, National Science Foundation's Merit Review Criteria: Review and Revisions. While the two merit review criteria remain unchanged (Intellectual Merit and Broader Impacts), guidance has been provided to clarify and improve the function of the criteria. Changes will affect the project summary and project description sections of proposals. Annual and final reports also will be affected.

A by-chapter summary of this and other significant changes is provided at the beginning of both the Grant Proposal Guide and the Award & Administration Guide.

Please note that this program solicitation may contain supplemental proposal preparation guidance and/or guidance that deviates from the guidelines established in the Grant Proposal Guide.

SUMMARY OF PROGRAM REQUIREMENTS

General Information

Program Title:

Next-Generation National Nanotechnology Infrastructure Network (NG NNIN)

Synopsis of Program:

The National Nanotechnology Infrastructure Network (NNIN) will reach its ten year authorized award life at the end of Fiscal Year 2013. The National Science Foundation is announcing in this solicitation an open competition to establish a Next-Generation National Nanotechnology Infrastructure Network (NG NNIN) for Fiscal Years 2014-2018.

NNIN has enabled major discoveries, innovations, and contributions to education and commerce within all disciplines of nanoscale science, engineering, and technology through NSF support of a national network of university-based user facilities. These facilities have provided open access to leading-edge nanotechnology fabrication and characterization tools, instrumentation, and expertise for users across the nation from academia, small and large industry, and government. The core mission of NNIN has included national-level education and outreach programs to enable a diverse science and engineering workforce, the study of societal and ethical implications of nanotechnology including issues of environment, health, and safety, as well as important modeling and simulation capabilities.

The new competition for the NG NNIN will build on the concept of NNIN with a much broadened scope and user base. Support is being provided by all NSF Directorates and the Office of International Science and Engineering as an integral part of the NSF investment in Nanoscale Science and Engineering.


The Federal Constitution for the United States of America, at Article 1, Section 8, Clause 17, states, in pertinent part, that the Congress can exercise exclusive Legislation "over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, . . ."

40 USCS 255 contains the following, clearly stated requirement:

"Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such lands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted." [emphasis added]

And the second paragraph of interpretive note 14 of 40 USCS 255 states:

"In view of 40 USCS § 255, no jurisdiction exists in United States to enforce federal criminal laws, unless and until consent to accept jurisdiction over lands acquired by United States has been filed in behalf of United States as provided in said section, and fact that state has authorized government to take jurisdiction is immaterial. Adams v. United States (1943) 319 US 312, 87 L Ed 1421, 63 S Ct 1122." [emphasis added, case copy attached]

Please send the requested copies as soon as possible to the exact location shown above in the "From:" section.

How Sites are Deleted from the NPL


EPA may delete a final NPL site if it determines that no further response is required to protect human health or the environment. Under Section 300.425(e) of the National Contingency Plan (55 FR 8845, March 8, 1990), a site may be deleted where no further response is appropriate if EPA determines that one of the following criteria has been met:

  • EPA, in conjunction with the State, has determined that responsible or other parties have implemented all appropriate response action required.

  • EPA, in consultation with the State, has determined that all appropriate Superfund-financed responses under CERCLA have been implemented and that no further response by responsible parties is appropriate.

  • A Remedial Investigation/Feasibility Study has shown that the release poses no significant threat to public health or the environment and, therefore, remedial measures are not appropriate.

Since 1986, EPA has followed these procedures for deleting a site from the NPL:

  • The Regional Administrator approves a "close-out report" that establishes that all appropriate response actions have been taken or that no action is required.

  • The Regional Office obtains State concurrence.

  • EPA publishes a notice of intent to delete in the Federal Register and in a major newspaper near the community involved. A public comment period is provided.

  • EPA responds to the comments and, if the site continues to warrant deletion, publishes a deletion notice in the Federal Register.

Sites that have been deleted from the NPL remain eligible for further Superfund-financed remedial action in the unlikely event that conditions in the future warrant such action. Partial deletions can also be conducted at NPL sites.

Guidance for Deleting Sites from the National Priorities List

Deleting Resource Conservation and Recovery Act (RCRA) Facilities

US EPA Revises Guidance to Encourage Renewable Energy on Contaminated Land

On December 5, 2012, US EPA issued a “Revised Enforcement Guidance Regarding the Treatment of Tenants under the CERCLA Bona Fide Prospective Purchaser Provision.”  US EPA undertook this effort to encourage reuse of contaminated properties for renewable energy development. However, the updated guidance is broad enough to apply to other tenant situations and may justify consideration of "all appropriate inquiries" in more lease situations.

The problem that US EPA is trying to address with this guidance is that a key Superfund 'landowner liability protection' (think limited and conditioned defense to liability) – for bona fide prospective purchasers (42 USC §§ 9601(40), 9607(q)(1)(C) and 9607(r)(1)), which provides a defense even where an acquirer knows of the existence of contamination at the time of acquisition – is not available to those who lease contaminated property unless the tenant’s landlord meets the requirements of the defense. In other words, according to the language of CERCLA itself, a tenant’s bona fide prospective purchaser defense must be derived from the defense of an eligible landowner.

 

This can be an obstacle to attracting renewable energy projects to contaminated properties. Most renewable energy project developers do not want to buy contaminated land. They do, however, need sufficient rights in the property developed to justify and secure the significant financial investment that will be needed, for example, to put a solar farm on a closed and capped landfill. A lease with a term tailored to the project’s horizon may provide the right balance and allow the developer to ensure that it is not stuck owning unwanted land and potential liability when the project has run its course. 

 

Under the revised policy issued last week, US EPA indicates that it will use its enforcement discretion not to pursue a tenant that meets the criteria of the bona fide prospective purchaser defense (including for example, conducting a pre-lease Phase I) even though the tenant is not a itself a “purchaser,” and even where the tenant’s landlord is not eligible for the defense, for example, because he or she owned the property when disposal occurred there.

 

This may help get more solar farms on more closed landfills (or other renewable energy projects at contaminated sites), which is a very good idea for a number of reasons, including the long term security and operation and management of the property. First, though, the basic economics of the project must be strong enough to overcome the inherent complications and associated additional time and costs, as well as lingering risks, involved in building on land where significant contamination remains. With strong fundamental project economics, the additional costs and lingering risks can be managed. US EPA’s sincere, though much conditioned, message in this revised guidance that it will be reluctant to pursue such developers will help.  For more on US EPA’s encouragement of the development of renewable energy projects on contaminated sites see Re-Powering America’s Land

 

Of course, any potential liability under Pennsylvania’s or other state’s law would also need to be sorted through as well.    In that regard, it is worth noting that Act 2 releases of liability can extend to a person “who develops or otherwise occupies the identified site.” See 35 P.S. §6026.501(a)(2).



Court finds personal jurisdiction over foreign business under a conspiracy theory

The Delaware Supreme Court recently held that a foreign business entity was subject to personal jurisdiction in the state of Delaware under a conspiracy theory. The foreign defendant allegedly conspired with other defendants to divest the plaintiff of his interest in a joint venture, which plan was accomplished, in part, by causing the dissolution of a Delaware limited liability company (LLC) co-founded by the plaintiff. The Delaware Supreme Court held that in order to establish personal jurisdiction over a foreign entity under a civil conspiracy theory, facts must be alleged from which the court can infer that the foreign defendant knew or should have known that the conspiracy would have a Delaware nexus. The lower court found this requirement lacking, and held that the foreign defendant did not know about the Delaware connection until after the Delaware LLC had been dissolved. The Delaware Supreme Court disagreed with the trial court’s analysis as to both the foreign defendant’s knowledge and the overall scope of the conspiracy, reasoning that even if there was no direct evidence that the foreign defendant knew about the dissolution before it occurred, the facts established that the defendant should have known it was dealing with a Delaware company. Further, the Delaware Supreme Court found that the conspiracy did not begin or end with the dissolution of the Delaware company and that the foreign defendant knew that its business partner had been a Delaware entity shortly after the dissolution, while the conspiracy was still ongoing. On these bases, the Delaware Supreme Court reversed the lower court’s dismissal of the action for lack of personal jurisdiction.

Matthew v. Flakt Woods Group SA, C.A. No. 5957-VCN (Del. Supr. Nov. 20, 2012).


California Court of Appeal applies three-year limitation under Delaware law to claim against dissolved Delaware corporation

In Greb v. Diamond Int’l Corp., 2010 Cal. App. LEXIS 566 (Cal. App. 1st Dist. Apr. 26, 2010), the California Court of Appeal for the First District affirmed the trial court’s dismissal of a personal injury claim against a dissolved Delaware corporation, holding that the claim was filed more than three years after dissolution of the corporation in violation of Delaware General Corporation Law Section 278. In doing so, the Court made it clear that, for purposes of lawsuits filed in California against dissolved non-California corporations, the law of the state of incorporation controls whether claims are timely filed.  

Plaintiffs alleged that Mr. Greb had suffered injury from exposure to asbestos and asbestos-containing products. They filed a complaint in California state court against Diamond International Corporation on December 22, 2008. Diamond International, however, was dissolved on July 1, 2005. Section 278 of the Delaware General Corporation Law bars suits against dissolved Delaware corporations filed more than three years after the dissolution. To avoid this bar, plaintiffs argued that they were entitled to file a lawsuit in California under Section 2010 of the California Corporations Code section 2010, which permits lawsuits to be filed against a dissolved corporation irrespective of the date of dissolution.

The Court of Appeal ultimately concluded that Delaware law is applicable and controlling. The Court noted that Section 299(1) of the Restatement (Second) of Conflict Laws states that whether a corporation continues its existence after it has been dissolved or suspended is decided by the state of incorporation. The Supreme Court of the United States, in Oklahoma Gas Co. v. Oklahoma, 273 U.S. 257, 259-60 (1927), recognized this principle, stating that the existence of a corporation after dissolution “concerns the fundamental law of the corporation enacted by the State which brought the corporation into being.” Courts in other jurisdictions, including the federal courts in New York, have followed this by enforcing Delaware’s three-year bar on lawsuits filed against dissolved Delaware corporations.

The Court of Appeal also considered California authority. Although California courts have held generally that the law of the state of incorporation determines the consequence of corporate dissolution, the court in North American Asbestos Corp. v. Superior Court, 180 Cal. App. 3d 902 (1986), held that Section 2010 of the California Corporations Code prevails over foreign corporation laws that limit survival periods of dissolved corporations. The Court in Greb, however, held that the ruling in North American Asbestos erroneously attempted to apply legislative intent where statutory authority clearly establishes that Section 2010 should not apply to foreign corporations. The Court also noted that the holding in North American failed to address Riley v. Fitzgerald, 178 Cal. App. 3d 871 (1986), which held to the contrary and was issued only two months earlier. Ultimately, the Court found North American to be unpersuasive.

The ruling in Greb reinforces the trend in California courts to apply the law of the state of incorporation to claims involving foreign corporations, a trend that adds to certainty for all parties embroiled in corporate litigation in California.


storm cloud

Whether or not the United States has jurisdiction is a Federal question. See Mason Co. v. Tax Commission, 302 U.S. at 197.

For there to be any real progress toward changing the culture and restoring accountability, there must be new leadership.
(Suspicions that foundation-supported non-government organizations have exerted an inordinate and improper influence.)

TERMINATION OF WAR AND EMERGENCIES Joint Res. July 25, 1947, ch. 327, Sec. 3, 61 Stat. 451, provided that in the interpretation of former 40 U.S.C. 276a-5, the date July 25, 1947, was to be deemed to be the date of termination of any state of war theretofore declared by Congress and of the national emergencies proclaimed by the President on September 8, 1939, and May 27, 1941. -End- -CITE- 40 USC Sec. 3148 01/03/2012 (112-90)

But if state law provides for trying an issue by jury—or for trying the issue of compensation by jury or commission or both—that law governs.

The Challenge of Citing Nonprecedential Decisions and Specific Passages

¶14 Citation reform, prompted by the shift to electronic media and urged upon the nation’s courts in the late 1990s, found little support among federal judges. Despite strong recommendations and blueprints from the American Bar Association (ABA) and American Association of Law Libraries (AALL) augmented by advocacy on the part of the Justice Department’s Antitrust Division, the proposal moved nowhere with the federal courts.[26] Rule 32.1 ought to reopen the matter. Strong as the arguments are for using court-applied sequence and paragraph numbers instead of volume and page numbers drawn from the commercially produced Federal Reporter as the core citation elements for precedential decisions, they become even more compelling when applied to the more numerous nonprecedential ones. Consider the following example. On January 4, 2007, the Federal Circuit released an eleven-page nonprecedential decision in the case of DESA IP, LLC. v. EML Technologies, LLC. With a system of non-proprietary and medium neutral citation of the sort that nearly one-quarter of the states have now adopted, one could cite to the court’s discussion of the weight to be given expert testimony in that case as follows:

DESA IP, LLC. v. EML Techs., LLC., 2007 USApp (Fed) 1 NP, ¶17.

New report, by an independent council of Presidentially-appointed experts, prioritizes the top scientific challenges facing agriculture and offers recommendations on how best to meet those challenges in the years ahead, with an emphasis on current practices within research universities and the USDA.

The DOJ’s police authority:
664 Territorial Jurisdiction
Of the several categories listed in 18 U.S.C. § 7, Section 7(3) is the most significant, and provides:
The term "special maritime and territorial jurisdiction of the United States," as used in this title, includes: . . .
(3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or
any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.

The police power is vested in the States and not the federal government. See Wilkerson v.
Rahrer , 140 U.S. 545, 554, 11 S.Ct. 865, 866 (1891) (the police power "is a power originally
and always belonging to the States, not surrendered to them by the general government, nor
directly restrained by the constitution of the United States, and essentially exclusive"); Union
National Bank v. Brown, 101 Ky. 354, 41 S.W. 273 (1897); John Woods &Sons v. Carl, 75 Ark.
328, 87 S.W. 621, 623 (1905); Southern Express Co. v. Whittle, 194 Ala. 406, 69 So.2d 652, 655
(1915); Shealey v. Southern Ry. Co. , 127 S.C. 15, 120 S.E. 561, 562 (1924) ("The police power
under the American constitutional system has been left to the states. It has always belonged to
them and was not surrendered by them to the general government, nor directly restrained by the
constitution of the United States … Congress has no general power to enact police regulations
operative within the territorial limits of a state"); and McInerney v. Ervin, 46 So.2d 458, 463
(Fla. 1950)
"No sanction can be imposed absent proof of jurisdiction." Standard v Olson, 74 S.Ct.
768. "It has also been held that jurisdiction must be affirmatively shown and will not be
presumed." Special Indem. Fund v Prewitt, 205 F2d 306, 201 OK. 308

The Supreme Court says the government has an obligation to ascertain bona fide authority:
“Anyone entering into an arrangement with the government takes the risk of having accurately
ascertained that he who purports to act for the government stays within the bounds of this
authority.” Federal Crop Insurance v. Merrill, 33 U.S. 380 at 384 (1947).
The Federal Rules of Civil Procedure even states there is no jurisdiction inside the States:
“ ‘Act of Congress’ includes any act of Congress locally applicable to and in force in the
District of Columbia, in Puerto Rico, in a territory or in an insular possession.” See 18 USC,
Rule 54 of the Federal Rules of Criminal Procedure. Note: There is NO reference to the 50
“states.”
The IRS must establish jurisdiction or it will be sanctioning FRAUD: “Silence is a species
of conduct, and constitutes an implied representation of the existence of facts in question. When
silence is of such character and under such circumstances that it would become a fraud, it will
operate as an Estoppel.” Carmine v. Bowen, 64 U.S. 932
“Silence can only be equated with fraud where there is a legal or moral duty to speak or
where an inquiry left unanswered would be intentionally misleading. ... We cannot condone this
shocking conduct by the IRS. Our revenue system is based upon the good faith
of the taxpayers and the taxpayers should be able to expect the same from government in its
enforcement and collection activities .... This sort of deception will not be tolerated and if this is
the ‘routine’ it should be corrected immediately.” [U. S. v. Tweel, 550 F.2d 297, 299
(1977)][quoting U.S. v. Prudden, 424 F.2d 1021, 1032 (1970)]
The USC codifies the Constitutional requirement at Article I, Section 8, Clause 17 and
proscribes the procedure and required documentation for the federal government to successfully
assert jurisdiction inside one of the fifty states. To wit: 40 USCS § 255 (now 3111 and 3112)
clearly and specifically requires that a "notice of acceptance" is to be filed "with the Governor of
such State or in such manner as may be prescribed by the laws of the State where such lands are
situated." "Such lands," of course, referring to those lands that the federal government, through
its agents, is claiming exclusive or concurrent jurisdiction over the people living thereon.
The text of § 255 concludes with the statement "Unless and until the United States has
accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively
presumed that no such jurisdiction has been accepted." [Emphasis added]
Obviously, if the requirements of Article 1, Section 8, Clause 17 of the Constitution of the
United States are not complied with, and/or if the procedural requirements of 40 USCS § 255 are
not complied with, then no public servant who is acting as an agent of the United States, i.e. the
federal government, has any bona fide authority whatsoever to attempt to force compliance with
any federal law, rule, code, statute, etc. on anyone living in such an area that is not subject to any
bona fide jurisdiction of the federal government.
In support of this rather obvious conclusion, the second paragraph of interpretive note 14 of
40 USCS § 255 says: "In view of 40 USCS § 255, no jurisdiction exists in United States to
enforce federal criminal laws, unless and until consent to accept jurisdiction over lands
acquired by United States has been filed in behalf of United States as provided in said
section, and fact that state has authorized government to take jurisdiction is immaterial. Adams
v. United States (1943) 319 US 312, 87 L Ed 1421, 63 S Ct 1122." (plaintiff’s emphasis).
[Federal jurisdiction] " ...must be considered in the light of our dual system of government
and may not be extended. . .in view of our complex society, would effectually obliterate the
distinction between what is national and what is local and create a completely centralized
government." United States v. Lopez, 514 U.S. 549, 115 S.Ct.1624 (1995

If it quacks...

carpe anas (The law of natural selection. A lame duck is usually a dead duck.)

An emphasis on current practices within research universities and the USDA.

Report to the President on Agricultural Preparedness & the Agriculture Research Enterprise, by the Council

TROLLING

The President’s Council of Advisors on Science and Technology (PCAST) today presented a report on the importance of USDA’s leadership in agricultural research. The Council is a diverse group of individuals appointed by the President from across the basic and applied scientific community to advise the President and the Executive Office of the President on key scientific issues.

Report to the President on Agricultural Preparedness & the Agriculture Research Enterprise, by the Council, concludes that the United States is the undisputed world leader in agricultural production today, but also cautions that U.S. agriculture also faces a number of challenges that are poised to become much more serious in the years ahead.

There is no question that the report recognizes American agriculture and USDA’s leadership in agricultural science and research as critical to the efforts to ensure greater food security and a better future for everyone.

As to conditions in state laws which affect the substantial rights of a litigant, the district courts would be bound to give them effect without any rule on the subject. Accordingly we present two alternative revisions. One suggestion supported by a majority of the Advisory Committee is as follows:

(k) Condemnation Under a State's Power of Eminent Domain. The practice herein prescribed governs in actions involving the exercise of the power of eminent domain under the law of a state, provided that if the state law makes provision for trial of any issue by jury, or for trial of the issue of compensation by jury or commission or both, that provision shall be followed.

We call attention to the fact that the proposed rule does not contain a provision for the procedure to be followed in order to exercise the right of the United States to take immediate possession or title, when the condemnation proceeding is begun. There are several statutes conferring such a right which are cited in the original notes to the May 1948 draft * * *. The existence of this right is taken into account in the rule. In paragraph (c)(2), * * * it is stated: “Upon the commencement of the action, the plaintiff need join as defendants only the persons having or claiming an interest in the property whose names are then known.” That is to enable the United States to exercise the right to immediate title or possession without the delay involved in ascertaining the names of all interested parties. The right is also taken into account in the provision relating to dismissal (paragraph (i) subdivisions (1), (2), and (3), * * *); also in paragraph (j) relating to deposits and their distribution.

The power of eminent domain under the law of a state. See Boom Co. v. Patterson, 1878, 98 U.S. 403, 25 L.Ed. 206; Searl v. School District No. 2, 1888, 8 S.Ct. 460, 124 U.S. 197, 31 L.Ed. 415; Madisonville Traction Co. v. Saint Bernard Mining Co., 1905, 25 S.Ct. 251, 196 U.S. 239, 49 L.Ed. 462. In the Madisonville case, and in cases cited therein, it has been held that condemnation actions brought by state corporations in the exercise of a power delegated by the state might be governed by procedure prescribed by the laws of the United States, whether the cases were begun in or removed to the federal court. See also Franzen v. Chicago, M. & St. P. Ry. Co., C.C.A.7th, 1921, 278 F. 370, 372.

Rule 70. Enforcing a Judgment for a Specific Act

(a) Party's Failure to Act; Ordering Another to Act. If a judgment requires a party to convey land, to deliver a deed or other document, or to perform any other specific act and the party fails to comply within the time specified, the court may order the act to be done—at the disobedient party's expense—by another person appointed by the court. When done, the act has the same effect as if done by the party.

(b) Vesting Title. If the real or personal property is within the district, the court—instead of ordering a conveyance—may enter a judgment divesting any party's title and vesting it in others. That judgment has the effect of a legally executed conveyance.

(c) Obtaining a Writ of Attachment or Sequestration. On application by a party entitled to performance of an act, the clerk must issue a writ of attachment or sequestration against the disobedient party's property to compel obedience.

(d) Obtaining a Writ of Execution or Assistance. On application by a party who obtains a judgment or order for possession, the clerk must issue a writ of execution or assistance.

(e) Holding in Contempt. The court may also hold the disobedient party in contempt.

Notes

(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Notes of Advisory Committee on Rules—1937

Compare [former] Equity Rules 7 (Process, Mesne and Final), 8 (Enforcement of Final Decrees), and 9 (Writ of Assistance). To avoid possible confusion, both old and new denominations for attachment (sequestration) and execution (assistance) are used in this rule. Compare with the provision in this rule that the judgment may itself vest title, 6 Tenn.Ann.Code (Williams, 1934), §10594; 2 Conn.Gen.Stat. (1930), §5455; N.M.Stat.Ann. (Courtright, 1929), §117–117; 2 Ohio Gen.Code Ann. (Page, 1926), §11590; and England, Supreme Court of Judicature Act (1925), §47.

§122 [now 1656] (Creation of new district or transfer of territory; lien)


Why comply with ARARs?

Section 121(d) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), requires attainment of federal and state applicable or relevant and appropriate requirements (ARARs). Subpart E, Section 300.400(g) "Identification of applicable or relevant and appropriate requirements," of the National Oil and Hazardous Substance Pollution Contingency Plan (NCP) (55 FR 8666) describes the process for attaining these ARAR requirements.

What difference does it make whether a requirement is "applicable" or "relevant and appropriate"?

"Applicable requirements mean those cleanup standards, standards of control, or other substantive environmental protection requirements, criteria, or limitations promulgated under Federal environmental or State environmental or facility siting law that specifically address a hazardous substance, pollutant, contaminant, remedial action, location, or other circumstance found at a CERCLA site" (55 FR 8814). Therefore, an applicable requirement is a requirement that a private party would have to comply with by law if the same action were being undertaken apart from CERCLA authority. all jurisdictional prerequisites of the requirement must be met in order for the requirement to be applicable.

If a requirement is not applicable, it still may be relevant and appropriate. "Relevant and appropriate requirements mean those cleanup standards [that] . . . address problems or situations sufficiently similar to those encountered at the CERCLA site that their use is well suited to the particular site" (55 FR 8817). A requirement that is relevant and appropriate may not meet one or more jurisdictional prerequisites for applicability but still make sense at the site, given the circumstances of the site and the release. In evaluating the relevance and appropriateness of a requirement, the eight comparison factors in 40 CFR 300.400(g)(2) should be carefully considered.

Once a requirement is relevant and appropriate, it must be complied with as if it were applicable. However, there are significant differences between the identification and analysis of the two types of requirements. "Applicability" is a legal and jurisdictional determination, while the determination of "relevant and appropriate" relies on professional judgment, considering environmental and technical factors at the site. Moreover, there is more flexibility when determining relevant and appropriate: a requirement may be "relevant," in that it covers situations similar to those at the site, but may not be "appropriate" and, therefore, may not be well suited to the site. In some situations, only portions of a requirement or regulation may be judged relevant and appropriate; if a requirement is applicable, however, all substantive parts must be followed.

Are there different types of ARARs?

EPA classified (this is not a regulatory requirement) ARARs into three categories: (1) chemical-specific, (2) location-specific, and (3) action-specific, depending on whether the requirement is triggered by the presence or emission of a chemical, by a vulnerable or protected location, or by a particular action.

  • Chemical-specific ARARs are typically health- or risk-based numerical values or methodologies which, when applied to site-specific conditions, are expressed as numerical values that represent cleanup standards (i.e., the acceptable concentration of a chemical at the site). Examples of chemical-specific ARARs include non-zero maximum contaminant level goals (MCLGs) and maximum contaminant levels (MCLs) established under the Safe Drinking Water Act, and federal water quality criteria (FWQC) established under the Clean Water Act. As a general rule, if more than one chemical-specific ARAR exists for a particular contaminant, the most stringent should be applied.
  • Location-specific ARARs are restrictions on the concentration of hazardous substances or the conduct of activities in environmentally sensitive areas. An example of a location-specific restriction on the concentration of hazardous substances is the RCRA land disposal restrictions (LDR) prohibiting hazardous waste placement into or onto the land (e.g., landfills and salt domes) until waste-specific treatment standards are met. Examples of restrictions on the conduct of activities in environmentally sensitive areas include floodplains, wetlands, and locations where endangered species or historically significant cultural resources are present.
  • Action-specific ARARs are usually technology- or activity-based requirements or limitations on actions or conditions taken with respect to specific hazardous substances. An example is the LDR requirement to recover mercury from high inorganic mercury nonwastewaters using roasting or retorting. Action-specific ARARs do not determine the remedial alternative; rather, they indicate how a selected alternative must be achieved. RCRA and the Clean Water Act provide the majority of action-specific ARARs.

CERCLA Section 121, "Cleanup Standards," applies to remedial actions that the Agency determines should be taken under CERCLA Sections 104 and 106 authority.

last week, Judge Griesbach wrote the sentence that most CERCLA defendants have been waiting 30 years to hear:  “It … seems doubtful that a defendant can ever be found to be an arranger if he did not know the substance in question is hazardous.”  For a statute in which liability has always been held to be strict and without fault, a judicial pronouncement that liability hinges on the defendant’s knowledge is nothing short of stunning.

Settling CERCLA litigation is a minefield, but armed with a carefully developed and executed strategy, a CERCLA plaintiff can successfully bring finality to the government’s claims without hindering its ability to seek contribution from other PRPs for an equitable share of remediation costs.


Chief Justice Marshall’s sage observation that “general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected,but ought not to control the judgment in a subsequent suit when the very point is presented for decision.” Cohens v. Virginia, 6 Wheat. 264, 399 (1821).

The rule is that a permanent physical occupation of property authorized by government is a taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982). So, too, is a regulation that permanently requires a property owner to sacrifice all economically beneficial uses of his or her land. Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1019 (1992).

“Where real estate is actually invaded by super induced additions of water, earth, sand, or other material . . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” Id., at 181.

Once the government’s actions have worked a taking of property, “no subsequent action by the government can re- lieve it of the duty to provide compensation for the period during which the taking was effective.” First English, 482 U. S., at 321. See also Tahoe-Sierra, 535 U. S., at 337

The determination whether a taking has occurred includes consideration of the property owner’s distinct investment­ backed expectations, a matter often informed by the law in force in the State in which the property is located. Lucas, 505 U. S., at 1027–1029; Phillips v. Washington Legal Foundation, 524 U. S. 156, 164 (1998).

 

Flooding cases, like other takings cases, should be assessed with reference to the “particular circumstances of each case,” and not by resorting to blanket exclusionary rules. United States v. Central Eureka Mining Co., 357 U. S. 155, 168 (1958)

 

When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking. See Loretto, 458 U. S., at 435, n. 12 (temporary physical invasions should be assessed by case-specific factual inquiry); Tahoe-Sierra, 535

U. S., at 342 (duration of regulatory restriction is a factor for court to consider); National Bd. of YMCA v. United States, 395 U. S. 85, 93 (1969)

 

(c) When regulation or temporary physical invasion by government interferes with private property, time is a factor in determining the existence vel non of a compensable taking. See, e.g., Loretto v. Tele­prompter Manhattan CATV Corp., 458 U. S. 419, 435, n. 12. Also rel­evant to the takings inquiry is the degree to which the invasion is in­tended or is the foreseeable result of authorized government action. See, e.g., John Horstmann Co. v. United States, 257 U. S. 138, 146. So, too, are the character of the land at issue and the owner’s “rea­sonable investment-backed expectations” regarding the land’s use, Palazzolo v. Rhode Island, 533 U. S. 606, 618, as well as the severity of the interference, see, e.g., Penn Central, 438 U. S., at 130–131.

 

The Takings Clause is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960).

 

See also First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 318–319 (1987); Penn Central Transp. Co. v. New York City, 438 U. S. 104, 123–125 (1978). And “[w]hen the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner.” Tahoe-Sierra Preserva­tion Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 322 (2002) (citing United States v. Pewee Coal Co., 341 U. S. 114, 115 (1951)).

 

Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action. See supra, at 9; John Horstmann Co. v. United States, 257 U. S. 138, 146 (1921)

 

The char­acter of the land at issue and the owner’s “reasonable investment-backed expectations” regarding the land’s use. Palazzolo v. Rhode Island, 533 U. S. 606, 618 (2001).

 

We are endeavoring to reclaim the land through a resto­ration program. The prospect of reclamation, however, does not dis­qualify a landowner from receipt of just compensation for a taking. United States v. Dickinson, 331 U. S. 745, 751(1947)


11-597 Arkansas Game and Fish Comm’n v. United States (12/4/2012)
Cabacera del Rio Buenaventura ex jure naturæ status quo ante bellum
Earthquake Hazards Reduction Act. The National Earthquake Hazards Reduction Program (NEHRP) was established by the U.S. Congress when it passed the Earthquake Hazards Reduction Act of 1977, Public Law (PL) 95?124. [ [ At the time of its creation, Congress' stated purpose for NEHRP was "to reduce the risks of life and property from future earthquakes in the United States through the establishment and maintenance of an effective earthquake hazards reduction program. www.agiweb.org/gap/legis106/nehrp.html ] Innovations de novo

FEMA Urges Residents to Follow Directions of Local Officials


By arming themselves with this knowledge

Category: Environment

From Futile to Fertile: Midwest Farmers; Federal Partners


Research, Education, and Economics


 'To raise awareness about the severity of this situation' concerning state & federal frauds,
corruption, and actual malice in the confiscatory takings of Iron Mountain Mines

"mineral springs & reclaimed water"

24.  The standard miner's inch of water is equivalent to one and one-half cubic feet of water per minute, 
measured through any aperture or orifice.

The United States will, therefore, under the ninth section, maintain and protect such water rights as have vested and accrued by priority of possession, and which at the time of such disposal are recognized and acknowledged by local customs, laws, and decisions of Courts, by which those rights are primarily regulated.


"A PARDON FOR MR. T.W. ARMAN" Curia Regis v. Superfund "Maximum Milt" EPA DOJ-ENRD

"projected to fall short", “capable of repetition”,  "no longer be needed or wanted",

"Taking A Little Bit Too Much Time Doing A Lot Of Arm Twisting"


Standing to challenge the constitutionality of the statute. 


over-correct, overcompensate - make excessive corrections for fear of making an error
Prayer for our manifold sins & transgressions & quality impairments
“for the signal blessings of Divine Providence that we have witnessed during the War.”

Cabacera del Rio Buenaventura ex jure naturæ status quo ante bellum
Headwaters of the River Buenaventura in its natural state as was before the war. (1844, 1862, 1914, 1941, 1963)
Absolute Original Paramount Agriculture College Land Grant Military Warrant Freehold University Perfect Patent Title

California – “fiscal hellhole”

“Two factors determine whether a state makes this elite list of fiscal hellholes,” William Baldwin recently wrote in Forbes. “The first is whether it has more takers than makers. A taker is someone who draws money from the government, as an employee, pensioner or welfare recipient. A maker is someone gainfully employed in the private sector.”

“Let us give those takers the benefit of our sympathy and assume that every single one of them is a deserving soul. This person is either genuinely needy or a dedicated public servant or the recipient of a well-earned pension.

But what happens when these needy types outnumber the providers? Taxes get too high. Prosperous citizens decamp. Employers decamp. That just makes matters worse for the taxpayers left behind.”

Baldwin explained that the second element in the death spiral list is a scorecard of state credit-worthiness done by Conning & Co., a money manager known for its measures of risk in insurance company portfolios. “Conning’s analysis focuses more on dollars than body counts. Its formula downgrades states for large debts, an uncompetitive business climate, weak home prices and bad trends in employment.”

Baldwin explained California’s place on the list: “It’s easy to see how California got on our list. It has pampered a large army of civil servants while using every imaginable trick to chase private-sector jobs away, the latest being a quixotic scheme to reduce the globe’s atmospheric carbon.  A City Journal essay by Victor Davis Hanson notes that the state spends $10 billion a year on entitlements for illegal aliens.”

Numbers don’t lie — people lie

What economic recovery? The numbers don’t lie. But the lies are adding up to more and more reasons to move to right-to-work states, low tax states, and states that celebrate economic freedom. California is a fiscal hellhole, ya sure, you betcha.

The real unemployment rate would be closer to 11 percent if it weren’t for all of the people who have stopped looking for work and completely dropped out of the labor force. And the really real unemployment rate is a separate government number called the “U-6,” rarely reported, which provides an accurate look at how many people are really unemployed.

According to the U-6, California has a 20.3 percent real unemployment rate.

The national results of the last four years are a tough pill to swallow: 23 million Americans are struggling to look for any work, nearly one in six are living in poverty, 47 percent of Americans do not pay any income tax, and 47 million people are dependent on food stamps to feed themselves and their families.

And California’s real debt is 10 times what Brown and the state Democrats report.

California’s real debt is not just the measly $16 billion that Gov. Jerry Brown and state Democrats bandy about; California’s real debt is $617 billion.

“California again trumped other states with a $617 billion debt,”  State Budget Solution reported in August. “California’s debt is more than twice the size of New York’s state debt, and New York has the second largest total debt burden in the nation.”

The reason for the disparity in numbers? “Unfunded public pension liabilities make up more than half of all state debt,”according to State Budget Solutions. The pension liabilities of the total debt represent the $2.8 trillion owed to public pension systems “as a result of years of skipped payments, borrowed funds, and inaccurate discount rate assumptions.”

Rights assessment is your responsibility.
Rghts?

National Days of Humiliation, Fasting, & Prayer

Costly rules held up for the election are about to roll over the economy. “regulatory flood”
HUNDRED OF THE FREEMINERS
IRON MOUNTAIN MINES LTD
100 MINER'S
INCHES @ HIGHEST CONCENTRATION
(1000 TONS PER HOUR SINCE 1913) OVER 100 YEARS CALIFORNIA'S LARGEST COPPER MINE)
Making sure our solutions are safe and sustainable.

"REVISITING  RULES" OF LEAD & COPPER

nano-particle ‘Solar steam’ so effective it can make steam from icy cold water

"THE RAILROAD STOPS HERE!" (Ask not for whom the whistle tolls. It blows for thee.)

Two orders of magnitude damages

In determining whether a settlement agreement has been made in good faith, California courts consider “

(1) a rough approximation of plaintiffs’ total recovery and the settlor’s proportionate liability;

(2) the amount paid in settlement;

(3) the allocation of settlement proceeds among plaintiffs; and

(4) a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial.”

“Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of non-settling defendants.”


“So far ‘out of the ballpark’ that the equitable objectives of § 877 are not satisfied.”

Section 6 of the UCFA is adopted as the law in this case for the purpose of determining the legal effect of the settlement agreement on the liability of the non-settling defendants. DATED: November 8, 2012, E.D.Cal. U.S. district judge William B. Shubb

(CERCLA) should reduce other defendants’ liability by the amount ultimately determined to be the settling defendant’s share, rather than by the amount of the settlement. Lewis v. Russell, No. 03-2646 (E.D. Cal. 11/9/12).


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).

International Law – Piracy jure gentium – Actual Robbery not an essential element.

Actual robbery is not an essential element of the crime of piracy jure gentium. A frustrated attempt to commit a piratical robbery is equally piracy jure gentium.

Quo Warranto assumption of Responsibility & Administrative Authority: Private Project Site Manager - John Hutchens.

Implicating Environmentalism -Becoming an Expert Witness

“(Nanotechnology) is a new science that is going to change our economy,” said Andre Nel, professor of medicine at UCLA. “It’s going to change how we can take care of the environment, it’s going to change healthcare, it’s going to make safer energy.”

The University of California Center for Environmental Implications of Nanotechnology aims to ensure the safe use of nanotechnology so the world can benefit from the science both economically and socially.

“Nanotechnology is here and it is the future,” EPA 's Lisa P. Jackson said.

"they’re actually only finding problems because then they turn around and find the solution at the same time.”


Dilbert


An obvious interest in avoiding being “saddled" with any of the

'settling defendant’s proportionate share'.

(the amount we ultimately determined to be the settling defendant’s share?)

(122% of the infamous billion dollar settlement final consent decree joint memorandum in support)

100% of a patently unfair and unreasonable reallocation of the settling responsible parties’ liability to innocent landowner under CERCLA.


The Supreme Court ruled that executive privilege is not ironclad.

"Maybe in the future you could let us know when something as definite as that comes"



Article 4. General Provisions.
§ 5018. Just Compensation.
The provisions in this Chapter are not intended and shall not be construed as authorizing the Delta
Stewardship Council or any entity to exercise its power in a manner that will take or damage private
property for public use without the payment of just compensation.
NOTE: Authority cited: Section 85210(i), Water Code.
§ 5019. Property Owner Rights.
The provisions in this Chapter are not intended to affect the rights of any owner of property under the
Constitution of the State of California or the United States.
NOTE: Authority cited: Section 85210(i), Water Code.

§ 5003. Covered Action Defined.
(a) “Covered action” means a plan, program, or project that meets all of the following criteria
(which are collectively referred to as covered action screening criteria):
(1) Is a “project,” as defined pursuant to Section 21065 of the Public Resources Code;


(2) Will occur, in whole or in part, within the boundaries of the Delta or Suisun Marsh;
(3) Will be carried out, approved, or funded by the state or a local public agency;
(4) Will have a significant impact on achievement of one or both of the coequal goals or the
implementation of government-sponsored flood control programs to reduce risks to people, property,
and state interests in the Delta; and,
(5) Is covered by one or more provisions of the Delta Plan, which for these purposes, means
one or more of the regulatory policies contained in Article 3.
(b) "Covered action" does not include any of the following:
(1) A plan, program, or project that is exempted pursuant to Water Code Section
85057.5(b);
(2) A plan, program, or project that is exempted pursuant to one or more of the following
administrative exemptions, as listed in Chapter 2 of the Delta Plan, because they will not have a
significant impact under Water Code Section 85057.5(a)(4), as further defined by Section 5001(s) of this
Chapter :
(A) “Ministerial” projects exempted from CEQA, pursuant to Public Resources Code
Section 21080(b)(1);
(B) “Emergency” projects exempted from CEQA, pursuant to Public Resources Code
Section 21080(b)(2)-(4);
(C) Temporary water transfers of up to one-year in duration. This exemption shall
remain in effect only through December 31, 2014, and as of January 1, 2015, is repealed, unless the
Council acts to extend the exemption prior to that date. The Council contemplates that any extension
would be based upon the Department of Water Resources and the State Water Resources Control
Board’s participation with stakeholders to identify and implement transfer measures, as recommended
in the Delta Plan’s Water Resources Recommendation Number 15;
(D) Other projects that are exempt under CEQA statutes or guidelines, unless there
are unusual circumstances indicating that the project may have a significant impact under Water Code
Section 85057.5(a)(4), as further defined by Section 5001(n) of this Chapter. Examples of unusual
circumstances could arise in connection with, among other things:
(i) Local government general plan amendments for the purpose of achieving
consistency with the Delta Protection Commission’s Land Use and Resource Management Plan; and,
(ii) Small-scale habitat restoration projects proposed in important restoration
areas, but which are inconsistent with the Delta Plan’s policy related to appropriate habitat restoration
for a given land elevation (Section 5008 of this Chapter).
(c) A state or local public agency that proposes to carry out, approve, or fund a plan, program, or
project that may be subject to this chapter must determine whether that proposed plan, program, or
project is a covered action. That determination, which is subject to judicial review, must be reasonable,
made in good faith, and consistent with the Delta Reform Act and this chapter.
(d) Nothing in the application of the definition of a “covered action” shall be interpreted to
authorize the abrogation of any vested right whether created by statute or by common law.

NOTE: Authority cited: Section 85210(i), Water Code.
Reference: Section 85057.5, Water Code.
Article 2. Certifications of Consistency
§ 5004. Contents of Certifications of Consistency.
(a) This policy specifies what must be addressed in a certification of consistency filed by a state or
local public agency with regard to a covered action. This policy only applies after a “proposed action”
has been determined by a state or local public agency to be a covered action because it is covered by
one or more of the regulatory policies contained in Article 3. Inconsistency with this policy may be the
basis for an appeal.
(b) Certifications of consistency must include detailed findings that address each of the following
requirements:
(1) Covered actions must be consistent with the coequal goals, as well as with each of the
regulatory policies contained in Article 3 implicated by the covered action. The Delta Stewardship
Council acknowledges that in some cases, based upon the nature of the covered action, full consistency
with all relevant policies may not be feasible. In those cases, the agency that files the certification of
consistency may determine that the covered action is consistent with the Delta Plan. That determination
must include a clear identification of areas where consistency is not feasible, an explanation of the
reasons why it is not feasible, and an explanation of how the covered action nevertheless, on whole, is
consistent with the coequal goals. That determination is subject to review by the Delta Stewardship
Council on appeal;
(2) Covered actions not exempt from CEQA must include applicable feasible mitigation
measures identified in the Delta Plan’s Program Environmental Impact Report (unless the measure(s)
are within the exclusive jurisdiction of an agency other than the agency that files the certification of
consistency), or substitute mitigation measures that the agency that files the certification of consistency
finds are equally or more effective;
(3) As relevant to the purpose and nature of the project, all covered actions must document
use of best available science (as described in Appendix
(4) Ecosystem restoration and water management covered actions must include adequate
provisions, appropriate to the scope of the covered action, to assure continued implementation of
adaptive management. This requirement shall be satisfied through both of the following:
1A);
(A) An adaptive management plan that describes the approach to be taken
consistent with the adaptive management framework in Appendix
(B) Documentation of access to adequate resources and delineated authority by the
entity responsible for the implementation of the proposed adaptive management process.
1B; and
(5) If the agency that files the certification of consistency will carry out the covered action,
the certification of consistency must also include a certification from that agency that the covered action
complies with all applicable laws pertaining to water resources, biological resources, flood risk, and land
use and planning. If the agency that files the certification of consistency will not carry out the covered
action (but will approve or fund the action), the certification of consistency must include a certification

from that agency that the covered action complies with all applicable laws of the type listed above over
which that agency has enforcement authority or with which that agency can require compliance.
NOTE: Authority cited: Sections 85210(i), Water Code.
Reference: Sections 85225, 85020, 85054, 85302(g) and 85308, Water Code.

Appendix 1A
Best Available Science

Guidelines and Criteria
There have been several efforts to develop criteria for defining and assessing best available science. In
2004, the National Research Council Committee on Defining the Best Scientific Information Available for
Fisheries Management prepared a report (National Research Council Report) that concluded guidelines and
criteria must be defined in order to apply best available science in natural resource management (National
Research Council 2004). Major findings and recommendations included establishing procedural and
implementation guidelines to govern the production and use of scientific information. The guidelines were
based on six broad criteria: relevance, inclusiveness, objectivity, transparency and openness, timeliness, and
peer review.
1A-2
Best available science for proposed covered actions and for use in the Delta Plan should be consistent
with the guidelines and criteria in Table 1A-1. These criteria were adapted from criteria developed by the
National Research Council. Proponents of covered actions should document their scientific rationale for
applying the criteria in Table 1A-1 (i.e., the format used in a scientific grant proposal).

Best available science for proposed covered actions and for use in the Delta Plan should be consistent
with the guidelines and criteria in Table 1A-1. These criteria were adapted from criteria developed by the
National Research Council. Proponents of covered actions should document their scientific rationale for
applying the criteria in Table 1A-1 (i.e., the format used in a scientific grant proposal).
Table 1A-1
Criteria for Best Available Science
Criteria Description
Relevance Scientific information used should be germane to the Delta ecosystem and/or biological and
physical components (and/or process) affected by the proposed decisions. Analogous information
from a different region but applicable to the Delta ecosystem and/or biological and physical
components may be the most relevant when Delta-specific scientific information is nonexistent or
insufficient. The quality and relevance of the data and information used shall be clearly addressed.
Inclusiveness Scientific information used shall incorporate a thorough review of relevant information and
analyses across relevant disciplines. Many analysis tools are available to the scientific community
(e.g., search engines and citation indices).a
Objectivity Data collection and analyses considered shall meet the standards of the scientific method and be
void of nonscientific influences and considerations.
Transparency
and openness
The sources and methods used for analyzing the science (including scientific and engineering
models) used shall be clearly identified. The opportunity for public comment on the use of science
in proposed covered actions is recommended. Limitations of research used shall be clearly
identified and explained. If a range of uncertainty is associated with the data and information used,
a mechanism for communicating uncertainty shall be employed.
Timeliness Timeliness has two main elements: (1) data collection shall occur in a manner sufficient for
adequate analyses before a management decision is needed, and (2) scientific information used
shall be applicable to current situations. Timeliness also means that results from scientific studies
and monitoring may be brought forward before the study is complete to address management
needsc. In these instances, it is necessary that the uncertainties, limitations, and risks associated
with preliminary results are clearly documented.
Peer review The quality of the science used will be measured by the extent and quality of the review process.
Independent external scientific review of the science is most important because it ensures
scientific objectivity and validity. The following criteria represent a desirable peer review processe.
Coordination of Peer Review. Independent peer review shall be coordinated by entities and/or
individuals that (1) are not a member of the independent external review team/panel and (2) have
had no direct involvement in the particular actions under review.
Independent External Reviewers. A qualified independent external reviewer embodies the
following qualities: (1) has no conflict of interest with the outcome of the decision being made,
(2) can perform the review free of persuasion by others, (3) has demonstrable competence in the
subject as evidenced by formal training or experience, (4) is willing to utilize his or her scientific
expertise to reach objective conclusions that may be incongruent with his or her personal biases,
and (5) is willing to identify the costs and benefits of ecological and social alternative decisions.
When to Conduct Peer Review. Independent scientific peer review shall be applied formally to
proposed projects and initial draft plans, in writing after official draft plans or policies are released
to the public, and to final released plans. Formal peer review should also be applied to outcomes
and products of projects as appropriate.
a. McGarvey 2007
b. National Research Council 2004, Sullivan et al. 2006
c. National Research Council 2004
d. Meffe et al. 1998
e. Adapted from Meffe et al. 1998
It is recognized that differences exist among the accepted standards of peer review for various fields of
study and professional communities. When applying the criteria for best available science in Table 1A-1,
the Council recognizes that the level of peer review for supporting materials and technical information

Appendix 1B
Adaptive Management

Dilbert

Risky Business

Best Practices in Counterparty Credit Risk Management

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Showdown at the EPA corral


Administrator testified before the Senate Environment and Public Works Committee.

If Eisenhower’s military-industrial complex was bad, what are we to make of today’s political-scientific-university-bureaucratic-military-industrial-media-environmentalist complex? Funded and driven by tens of billions of dollars annually for research grants, renewable energy programs and regulatory regimes, it has far too much at stake.

EPA to Hold Public Meeting on Liberty

Finishing Superfund

"AGGRAVATING CIRCUMSTANCES"

“Superfund has been such a stigma, and has contributed to an economically depressed community,” “We believe this community can thrive again.” “We didn’t have the bare bones before. This brings us up to speed,”


NSF 13-025

Dear Colleague Letter - Designing Materials to Revolutionize and Engineer our Future (DMREF)

Making sure our solutions are safe and sustainable.

Iron Mountain Laboratory of Nanophotonics
The Iced Road Map

Critical Water Use Principles & Priorities.

The United States must reconsider and realign its energy production policy and water management practices in order to avoid certain shortages of water and shortfalls in energy.
U.S. energy policy encouraging construction of more coal-fired and nuclear power plants, which use millions of gallons of water an hour, without considering where they would be built in order to have available the water they will require. The thermo-electric generating sector currently accounts for half of the 400 billion gallons of water withdrawn daily from the nation’s rivers and lakes, principally to cool the plants. The same power plants consume more than 3 billion gallons of water a day, principally through evaporation.
The Department of Energy forecasts a 50 percent increase in the demand for electricity by 2030.

The Advanced Energy Initiative is to replace 30 percent of the nation’s current gasoline needs with domestically grown and refined biofuels by 2030. This will require production of about 60 billion gallons of ethanol per year by 2030, with over two-thirds needing to come from cellulosic-based feedstocks like switchgrass and wood wastes.

Solar steam is about two-and-a-half times more efficient than existing distillation columns.

Sunlight-illuminated particles can also drive H2O - ethanol distillation, yielding fractions significantly richer in ethanol content than simple thermal distillation.

“We all have a stake in the quality of our water,” said EPA Regional Administrator Richard E. Greene. “Ensuring the sustainability of our nation's waters is not just an EPA challenge -- it is everyone's challenge.

$57,139,669.53.

OUTLAWRY!

Case 2:91-cv-00768-JAM-JFM Document 1300 Filed 12/18/2009 Page 4 of 11

EXACTIONS § 2680. EXCEPTIONS, ESTOPPEL OF SUMMARY JUDGMENTS, HEARING

Factoring for poor air quality impairment may cause headaches, fatigue, exhaustion.

WhistleStop¡© Class Action -  Hundred Freeminers & Armed Bands of the Arm Twisting & Head Pounding.

LANDLORD & AGENT & FIRE FIGHTERS & STAKEHOLDERS & BENEFICIAL USERS

Courageous deletion, "Anything that remedies or heals or soothes should be recognized and given effect by the courts."
"Internal Mine Management Decisions Officer for the Region." "Occupation” wanted by site owners. No-risk
  EPA-DOE-DOI-DOJ-OIG NASA/NOAA superfund category. High Potential site. Bio-phobic agency assessment.

The Oversight Agency will secure permission for the Site Operator to enter and perform Work at the property owned by Iron Mountain Mines, Inc., Mr. T.W. Arman

Overlying rights apply to landowners who use their groundwater for beneficial use. 

Standing; Going Forward: Apprehension.

Private Proponent's Aspirations, Expectations & Innovations


Water Resources Management and Policy in a Changing World: Where Do We Go From Here?

Stewardship of the Head Master Naturalist

Community Involvement at Removals. The NCP requirements for community involvement apply to all Superfund removals.

The world is a dangerous place to live; not because of the people who are evil, but because of the people who don't do anything about it. --   Albert Einstein:

EPA's entrenched bureaucratic institutionalized incompetence, neglect, & failure causing unacceptable adverse effects including:

1. Community-based capacity as stakeholders to develop projects for asthma and other effects of toxic contaminants exposures.

2. Community-based health strategy for detecting and treating elevated lead levels in our blood.

3. Community-based local Environmental Justice Problem Solving and access to Environmental Justice grants and awards.

4. Community-based local stakeholders tools to improve environmental and public health outcomes.

5. Community-based redevelopment of neighborhoods to improve human health, storm-water management and urban agriculture. 

6. Community-based organization implementing a comprehensive project to look at the cumulative effects of multiple environmental impacts.

7. Community-based leaders to prioritize neighborhood concerns.and risk factors, fix poor housing conditions and homelessness exposures.

8. Community-based tools to achieve Children's Environmental Health and Environmental Justice from children's exposure to contaminants.

9. Community-based local agency to focus efforts on heavily affected priority areas of the communities environmental problems and concerns.

10. Community-based local effort providing ‘treatment at the tap' mitigation, assessing home health and testing of drinking water sources.

The defining aspect of ecological Big Data is not raw size but another dimension: complexity.

“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.


"where landowners fence or post "no trespassing" signs on their property or otherwise indicate unmistakably that entry is not allowed, their "expectation that their privacy rights will be respected and that they will be free from unwanted intrusions is reasonable".


The Oversight Agency will secure permission for the Site Operator to enter and perform Work at the property owned by Iron Mountain Mines, Inc., T.W. Arman

Proof of the absence of jurisdiction
Rough Justice: 

The clear errors of Judge Milton L. Schwartz
'You can't file any more cases in my court. I'm drowning,' and that's tough." (must be a Lame Duck)

 U.S. Supreme Court Liberalizes Use of Apportionment Instead of Joint and Several Liability in Superfund Litigation and Clarifies Conditions for Imposing ‘Arranger’ Liability Under CERCLA

Environmental Regulation 2011: Managing in the Face of Rapid Change, 587 PLI/Real 307
Megan Low, Peter Hsiao, and Joshua Simon, 2/9/2011, Article 

join the
                                                          revolution

That whooshing sound you hear is half of America,

"Maximum Milt"

Milton Lewis Schwartz (January 20, 1920 – October 3, 2005) was a United States federal judge.

Born in Oakland, California, Schwartz received an A.B. from the University of California, Berkeley in 1941 and was a Major in the United States Army from 1942 to 1945. He received a J.D. from the University of California, Berkeley, Boalt Hall School of Law in 1948 and was a law clerk to Rolfe L. Thompson of the California Court of Appeal from 1948 to 1949. He was a deputy district attorney of Sacramento County, California from 1949 to 1951, and was then in private practice in Sacramento, California from 1951 to 1979.

On September 28, 1979, Schwartz was nominated by President Jimmy Carter to a new seat on the United States District Court for the Eastern District of California created by 92 Stat. 1629. He was confirmed by the United States Senate on November 26, 1979, and received his commission on November 27, 1979. He assumed senior status on January 20, 1990, serving in that capacity until his death, in Sacramento.(Expiration of Jurisdiction.)

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Government liabilities arising out of errors, omissions and negligent acts

$7,074,500,000 – treble damages = $21,248,500,000 U.S.A. liability



"EPA requires Site access over the next several years to conduct the remedy and should not be forced to come into Court each time it is unable to obtain an agreement with the defendants that entry will be allowed." 8/29/1988

Moreover, he must spend the vast majority of his time on the bench coping with the criminal cases. "That means that this great mass of civil cases has to be done on Friday (his law-and-motion day) or nights and weekends because there's no other time to address the civil....

"Once in a while I get civil cases to trial, but not very many," the judge continued. "I bet I haven't had five civil jury trials since I've been here in almost four years." He added that he has tried a number of nonjury civil cases, however.

The biggest contributor to his problem, Schwartz noted, is that the Sacramento branch of the Eastern District has had a vacancy on its bench for nearly a year, leaving Schwartz and the court's two other active judges to pick up the load. "That really hurts," he said.

Nevertheless, lawyers say Schwartz is fully capable of managing his calendar and of trimming issues from civil cases, in the way federal judges are famous. "He may be farther behind (than some other judges)," said a trial lawyer in Sacramento. "But he's the kind of judge who's very organized. . .. It may take longer to get to trial before him, but his calendar's not messed up."

Settlement Weakest (If you don't care about the right to a "Speedy" trial)

Still, the judge said he does not "feel comfortable doing a lot of arm-twisting" to make lawyers settle civil cases. Settlement may well be his weakest area on the bench, Schwartz conceded. "I don't really know why. I felt, without any false modesty, that that was a strong suit that I had as a lawyer. I felt I could negotiate well."

On the other hand, he added, "I think I'm the only judge I know who doesn't have mandatory settlement conferences.. . .

"I'm somewhat reluctant to pound heads. I don't mind pounding heads when I'm running my courtroom and I think somebody has misbehaved. But to try to squeeze or force a lawyer or a client into settling a case because I think it ought to be settled just seems to me to be beyond the scope of what I think a judge ought to be doing, and I don't feel comfortable doing it."

Some lawyers, on the other hand, suggest that Schwartz' problem may stem in small part from his thorough and conscientious approach to deciding cases. "He tends to take a little bit too much time," said a federal prosecutor.

President Jimmy Carter named Schwartz to the federal bench in November 1979, and the judge says he is glad for the change. "I had reached a point where I was tired of the problems, of getting yanked around, of being told that I had to be in three different courts on the same day... .

"Here, the only thing that controls you is your own stomach and your own conscience"

(Taking a little bit too much time?)

Suppose someone has scrap copper lying around, which is of no value to him but is valued by others.  To him it is scrap, but to others it is useful and therefore valuable.  When he sells the scrap to a dealer, he might have some general inkling that the copper could be used in wire or tubing or any number of other applications, but as far as he is concerned his purpose is simply to make a little money.  And, although he wants to get the scrap off of his property, there is nothing harmful or toxic about the scrap that would give him extra motivation to have it disposed of or to cause him to think about its final destination.  He is simply indifferent to the final destination of the copper.”  Slip Op. at 14-15.



Deck chair management on the Titanic

You have to ask whether there isn’t something wrong with a