IRON MOUNTAIN MINES INSTITUTE
IRON MOUNTAIN MINES INSTITUTE
BREAKTHROUGH DICOVERY! IRON MOUNTAIN MINE CATALYST BREAKSDOWN PESTICIDE, HERBICIDE, & FUNGICIDE RESIDUES IN SOIL, BIODEGRADATION OF ECONOMIC POISONS FROM INDUSTRIAL AGRICULTURE
"HEMATITAN" SOIL MINERALS - $1,200 per ton/ $45 per 5 gal. plus shipping 'ARMAN' solution $55 per 5 gal. plus shipping: fax orders to 530-275-4559
Christ Statue and Spiritual Sanctuary
MR. T.W. "TED" ARMAN, OWNER OF IRON MOUNTAIN MINE, LTD., PRESIDENT, CHAIRMAN, CEO OF IRON MOUNTAIN MINES, INC. OWNER OF IRON MOUNTAIN MINE, IRON MOUNTAIN, THE COPPER MOUNTAIN MINING CO., MOUNTAIN COPPER CO., IRON MOUNTAIN INVESTMENT CO., THE ARMAN CONSOLIDATED MINES, THE ARMAN CONSOLIDATED MINING CLAIMS, THE ARMAN MINES EQUITABLE TRUSTS, THE ARMAN SOVEREIGN WAR ON POVERTY FUND, THE ARMAN MINES CHARITABLE FOUNDATION, THE ARMAN MINES MINISTRY OF NATURAL RESOURCES FEDERATION, THE ARMAN LOST CONFIDENCE MINE, THE ARMAN AGRICULTURAL COLLEGE, THE ARMAN MINES HAZARD AND REMEDIATION DIRECTORATE, THE ARMAN MINES DISASTER ASSISTANCE DIRECTORATE, AND THE ARMAN MINES HUMMINGBIRD INSTITUTE COLLEGE OF THE HUMMINGBIRD CENTER FOR HEALTH INSTITUTE FOR LIBERTY AND INDEPENDENCE.
THE HUMMINGBIRD INSTITUTE IS ESTABLISHED AS A FOUNDATION FOR THE CARE OF THE IRON MOUNTAIN CHRIST STATUE AND SPIRITUAL RETREAT.
OLD WORLD MIX - MINERALS & METALS, PAINTS & STAINS, CATALYSTS & NANOMATERIALS, GRANITE & PORPHYRY, AGGREGATES & BUILDING STONE, COPPER, ZINC, SILVER, & GOLD
CALIFORNIA - EPA DELISTING IRON MOUNTAIN MINE!
COPPER, CADMIUM, AND ZINC; QAPP Information: QA Info Missing; Keswick dam to Cottonwood creek; Final Listing Decision: Delist from 303(d) list. JUNE 15, 2010;
EPA has not yet implemented ICs (Institutional Controls) as required at the IMM Superfund Site in the five signed RODs
(EPA, 1986; EPA, 1992; EPA, 1993; EPA, 1997; EPA, 2004) IRON MOUNTAIN MINE GOING ROUGE, COMING TOGETHER
There is overwhelming evidence that replenishment of minerals to croplands has reached a critical point in history. Our foods are nearly empty of nutrients dependent on minerals for synthesis in food. The fields we have grown our foods in for 150 years are depleted of micro nutrient mineral elements. The rate of depletion from 1900 to 1940 is almost 85% and this is evidenced by the rate of mineral deficient diseases increasing in the population as minerals were removed from the soil.
Simply put, nutrient deficient fields are producing a product of low value. The research conducted at major Universities and government agencies offer compelling findings that indicate an overall mineral deficiency condition in the soil of the nation's croplands. In recent years a growing number of reports have appeared which conclude that today's foods are not as nutritious as those eaten in the past.
1936. United States Senate document 264 documented the issue of depleted soil borne micro nutrient trace minerals and concluded that a national crisis was looming in the near future with the outcome a dramatic increase in mineral deficiency disease. To quote from this study: "Countless human ills stem from the fact that impoverished soil of America no longer provides plant foods with the mineral elements essential to human nourishment and health!"
1997. The US Department of Agriculture confirmed this prediction with the graphic depiction of the reduction of soil borne micro nutrient trace minerals coincidental with the increase in mineral deficiency disease.
2008. The Society of Chemical Industry's (SCI) Journal of the Science of Food and Agriculture. It reported that there is no significant difference in nutrient value in organically grown food compared to non organically grown food. [2] Both methods produce remarkably low nutrient values deficient in critical minerals due to past over harvesting practices.
University of Texas. Donald Davis, a senior researcher at the University of Texas, performed research into the disappearing nutrients in food. He compared Agriculture Department figures on nutrient content for 43 common fruits and vegetables. Davis says historical data spanning 50 to 70 years show apparent declines of 5 percent to 40 percent or more in minerals, vitamins and proteins in vegetables.
Washington State University professor Stephen Jones and researcher Kevin Murphy. Research showed that today's modern wheat has less nutritional value concluding that grains have been developed for baking qualities that are related to protein, not related to iron and zinc and selenium and other essential vitamins and minerals. "You would have to eat twice as many slices of modern bread as you would of the older variety to get the same nutritional value."
2001. The Journal of Complimentary Medicine pointed out that US and UK Government statistics show a decline in trace minerals of up to 76% in fruit and vegetables over the period 1940 to 1991.
2003. News Canada reported that today's fruit and vegetables contain far fewer nutrients than they did 50 years ago. Potatoes, for example, had lost 100 % of vitamin A content, 57% of vitamin C and iron, and 28% of calcium. The report examined data from the US Department of Agriculture involving vegetable quality. Over the entire 20th century the average mineral content in cabbage, lettuce, spinach and tomatoes, declined from 400mg to less than 50mg.
2004. The Journal of the American College of Nutrition examined food composition changes from 1950 to 1999 recorded in the USDA food composition tables. Forty-three crops were examined showing statistically reliable declines for 6 nutrients. The declines were observed in protein, calcium, phosphorous, iron, riboflavin and ascorbic acid; 6% in the case of protein and 38% for riboflavin.
2008. The UK publication Food Magazine. Analysis of food quality changes in the UK over the period 1940-2002. In an analysis of milk: iron content had fallen 62%; magnesium was down 21%; copper content had disappeared completely. Parmesan cheese; 70% decrease in magnesium. The calcium and iron content of all the foods examined was reduced dramatically. Beef rump steak iron content fell 55%.
One thing is certain, mineral deficiency is a root cause of multiple medical conditions that are abated by mineral replenishment. It is likely that plant disease can also be reduced by mineral replenishment.
By JOHN R. WILKE and SUSAN WARREN
Staff Reporters of THE WALL STREET JOURNAL
WASHINGTON -- The world's two biggest vitamin makers agreed to pay a total of $725 million to settle Justice Department charges that they and other manufacturers engaged in a massive price-fixing conspiracy that inflated the cost of everything from breakfast cereal to hamburgers over the past decade.
Hoffmann-La Roche Ltd., a unit of the Swiss drug giant Roche Holding AG that has 40% of the global human and animal vitamin market, agreed in U.S. District Court in Dallas to pay a record $500 million fine and plead guilty as part of the settlement. BASF AG, a major German chemical maker that has 20% of the market, will pay $225 million and enter a guilty plea as well.
Rhone-Poulenc SA of France, the world's third-biggest vitamin maker with 15% market share, also participated in the price-fixing ring. But the company began cooperating with federal investigators a few months ago under an amnesty program and helped make the case against its co-conspirators, U.S. officials said.
Members of the ring, including Rhone-Poulenc, also face potentially massive damage claims in 25 private lawsuits now pending in four federal courts. The suits were brought by livestock farmers and other purchasers of bulk vitamins who allege they were forced to pay illegally inflated prices. The first of these cases was filed in U.S. District Court in Washington, D.C., in March 1998.
Wide Effect Cited
The cartel "is the most pervasive and harmful criminal antitrust conspiracy ever uncovered," declared Joel Klein, chief of the Justice Department's antitrust division. The price-fixing ring "hurt the pocketbook of virtually every American consumer, anyone who took a vitamin, drank a glass of milk, or had a bowl of cereal," he said.
10 largest fines secured by the U.S. Justice Department in antitrust cases. |
Company |
Fine (millions) |
Year |
Industry |
| Roche Holding | $500 | 1999 | Vitamins |
| BASF | 225 | 1999 | Vitamins |
| SGL Carbon | 135 | 1999 | Electricity conductors |
| Ucar International | 110 | 1998 | Electricity conductors |
| Archers Daniels Midland | 100 | 1996 | Feed supplements, food additives |
| Bayer | 50 | 1997 | Food additives |
| HeereMac | 49 | 1997 | Offshore oil and gas construction services |
| Showa Denko Carbon | 33 | 1998 | Electricity conductors |
| Fujisawa Pharmaceutical | 20 | 1998 | Industrial cleaners |
| Dockwise | 16 | 1997 | Offshore oil and gas construction, transportation |
David Gutierrez
NaturalNews
September 7, 2010
Emerging research increasingly indicates that the U.S. water supply is widely contaminated with the endocrine disrupting chemical atrazine, but that the Environmental Protection Agency (EPA) is taking almost no action on the threat.
Atrazine is an herbicide widely sprayed on corn fields in the Midwest, and one of the most widely detected groundwater contaminants in the country. According to an analysis of state and federal records by the Chicago Tribune , atrazine has been detected in the drinking water of a million people in 60 Illinois communities over the past four years. Yet the EPA requires testing for the chemical only four times a year, meaning that short-term spikes of the toxin go undetected — and unregulated.
Special agreements between the EPA and Syngenta, the top manufacturer of the atrazine used in the U.S., have led to limited weekly or biweekly testing for the chemical by 130 water utilities in 10 different states. In 2008, nearly half of these communities in the Midwest alone experienced atrazine levels in their water above the federally imposed limit of 3 ppb (parts per billion) at least once. In Flora, Illinois, levels spiked as high as 30 ppb at one point.
In nine Midwestern communities, atrazine levels averaged higher than 3 ppb for the full year. Yet unless levels higher than 3 ppb are detected during one of the EPA's four official yearly tests, the agency is helpless to take action. Likewise, contamination detected at other times need not, under the Safe Water Drinking Act, be reported to the public. This has led to a situation where citizens are not only unaware that their water is contaminated, they are never told that an inexpensive home filter could remove the toxin from their water.
Even the EPA's “safe” level of 3 ppb, however, may be far too high; studies suggest that atrazine is biologically active in levels as low as 0.1 ppb, mimicking the action of hormones in the body. A recent meta-analysis of 125 studies by researchers from the University of South Florida found that the chemical causes developmental and reproductive defects in amphibians and fish. Another study, conducted by University of California-Berkeley researchers and published in the Proceedings of the National Academy of Sciences , found that small amounts of atrazine lowered testosterone levels and fertility in male frogs . Many of the frogs were chemically castrated or even turned into females.
Prenatal exposure to low levels of atrazine has also been shown to predispose rats to cancer as adults. And according to a 2009 study by researchers from Indiana University, human children conceived between the months of April and July, when atrazine levels in water are highest, were more likely to suffer from nine different kinds of birth defects than children conceived in other months.
“ Atrazine … appears to have effects during critical stages of fetal development,” said Suzanne Fenton of the National Institute of Environmental Health Sciences, a former EPA researcher.
Atrazine has been banned in Europe for its contaminating effects on groundwater , and a handful of U.S. states prohibit spraying in certain contamination-prone areas. Yet the EPA's most recent ruling on the chemical, issued in 2006, endorses its use. The Bush-era ruling was based on a 2003 review heavily funded by Syngenta. Bush administration officials are known to have met with officials from the company at least 50 times before issuing their ruling, including at two industry-dominated panels.
The EPA's position has drawn the ire of states that have been stuck with regulating the atrazine problem on their own. In 2009, 44 water utilities in the states of Illinois, Indiana, Iowa, Kansas, Mississippi and Ohio sued the federal government to reimburse them for the costs of atrazine cleanup.
Since the 2003 EPA review, a further 100 studies have been published showing health risks from atrazine exposure. The Obama administration is now conducting a review of the EPA's stance on the chemical.
ADVERSE CLAIMS - DEFAMATION OF CHARACTER - STIGMATIC INJURY - ILLEGITIMATE ANIMUS - LIBEL & SLANDER
CONCURRENT JURISDICTIONS & CLASS ACTION FAIRNESS ACTION -"TWO MINERS (A HUNDRED MEMBERS) & 8000 ACRES OF LAND"
The office of reformer of the superstitions of a nation, is ever dangerous. Jesus had to walk on the perilous confines of reason and religion; and a step to the right or left might place him within the grasp of the priests of the superstition, a bloodthirsty race, as cruel and remorseless as the being whom they represented as the family God of Abraham, of Isaac and of Jacob, and the local God of Israel. They were constantly laying snares, too, to entangle him in the web of the law. He was justifiable, therefore, in avoiding these by evasions, by sophisms, by misconstructions and misapplications of scraps of the prophets, and in defending himself with these their own weapons, as sufficient ad homines, at least. That Jesus did not mean to impose himself on mankind as the son of God, physically speaking, I have been convinced by the writings of men more learned than myself in that lore. But that he might conscientiously believe himself inspired from above, is very possible. The whole religion of the Jew, inculcated in him from his infancy, was founded in the belief of divine inspiration. The fumes of the most disordered imaginations were recorded in their religious code, as special communications of the Deity . . . Elevated by the enthusiasm of a warm and pure heart, conscious of the high strains of an eloquence which had not been taught him, he might readily mistake the coruscations of his own fine genius for inspirations of an higher order. This belief carried, therefore, no more personal imputation, than the belief of Socrates, that himself was under the care and admonitions of a guardian Daemon. - Thomas Jefferson
The confessions of Fed Chairman Ben Bernanke before the Financial Crisis Inquiry Commission were a startling wake-up call about his previous lack of absolute candor. Chairman Ben admitted he knew Lehman Bros. was likely insolvent in 2008– but was not “straightforward” with the public, because it might have triggered selling pressure in the markets.
Is he kidding? The failure of Lehman triggered one of the most disastrous chain of wealth destruction the nation has ever endured. The panic that ensued require trillions to bail out and make safe money market mutual funds, the commercial paper market, AIG, Citigroup, Bank of America, Fannie Mae, Freddie Mac, and a capital injection for a host of other financial institutions like Goldman Sachs and Morgan Stanley. It was only going to be the end of the world, as we know it.
But, there's more mea culpa. The Fed, the Chairman admitted, was mistaken in not using its “existing”– (I repeat)… “existing authority” to regulate mortgage lending practices. Folks; the Fed had “existing authority” to do something about the rank speculation and greed in housing markets– and did nothing.
So, Bernanke wasn't “straightforward” in his public statements of Lehman's condition. So, why should we take his word that nothing was done because “Lehman didn't have enough collateral to support a loan from the central bank.” Collateral. Schmateral. Helicopter Ben could have staunched the capital problem, and changed the law later, if it was that threatening a general crisis. That nothing was done, admits Bernanke “is my own fault, in a sense.”
This incredible confession never made the headlines or became an issue taken up by the cable bigmouths. Incredibly, it was played on page A6 of the WSJ first section and page B3 of the NY Times Business Section.(Thank you John M. Mason of iStockAnalyst for pointing this out in you Sept. 3 blog. In other words, it was nearly forgotten.
And ,when you might ask, will we hear from the former President of the New York Federal Reserve Bank, Treasury Secretary Tim Geithner, whose job, ahem, responsibility it was, to monitor, well regulate the money center banks like Citigroup. Waiting for Godot.
We have heard the fantastic admission of former Fed chairman Alan Greenspan about his inabiity veer off from a total belief in the free market ideology of his former guru Ayn Rand. In 2008, testifying before the House Committee on Oversight and Government Reform, Greenspan recanted; “those of us who have looked to the self-interest of lending institutions to protect shareholders equity, myself included, are in a state of shocked disbelief. The modern (free market) paradigm held sway for decades. The whole intellectual edifice, however, collapsed in the summer of last year.”
What unbearable pap! Here's Greenspan defending his obstruction to a 1994 bill to regulate derivatives by installing capital requirements at banks, disclosure and tight accounting regulations.. In 1994– almost a decade and a half before the collapse of finance, Greenspan intoned that the “risk in financial markets, including derivatives markets, are being regulated by private parties… There is nothing involved in federal regulation per se which makes it superior to market regulation.” That's why he did nothing to stem the dot.com bubble in the late 1990s despite muscular prodding by Larry Tisch, chairman, Loews Corp. and John Whitehead, former managing partner, Goldman Sachs.
Another admission of guilt came this year from former President Bill Clinton who bared his terrible mistake in listening to former Treasury Secretaries Rubin and Summers about NOT regulating the derivatives markets. Just a year ago Clinton told me in a videotaped interview(see forbes.com, Streettalk) that he couldn't see that the creation of derivatives had added $1.00 to the nation's economic growth.
On other matters Chairman Bernanke was most vague about his responsibility. He could not define “systemic risk” in any precise manner, suggesting that the conditions for “systemic risk” will “remain subjective.” Boy, there was nothing “subjective” about the crisis we just went through. I recall it being painfully “objective.”
Most incredulously, Bernanke refused to say the immanent collapse of AIG was due to its financial connections to counter-parties like Goldman Sachs and a raft of European banks. The $180 billion bailout was “based on intuition” not a steady of AIG's credit exposure.
In fact, get set for this whopper; Our central bank chairman, two years later, claims he still doesn't know the net exposures that AIG had with Goldman, Societe Generale, Deutsche Bank or anyone else for that matter. Do you believe him? Please let me know. Because, if he's telling the truth then we are in a great deal more trouble than I ever supposed.
Cmon, Mr. President. Order your man Geithner to get to the bottom of this. What were the net exposures of AIG to the world's financial community?
Institutional controls are non-engineered instruments, such as administrative and legal controls, that help minimize the potential for human exposure to contamination and/or protect the integrity of the remedy. Although it is EPA's expectation that treatment or engineering controls will be used to address principal threat wastes and that groundwater will be returned to its beneficial use whenever practicable, ICs play an important role in site remedies because they reduce exposure to contamination by limiting land or resource use and guide human behavior at a site. For instance, zoning restrictions prevent site land uses, like residential uses, that are not consistent with the level of cleanup.
Often, ICs are a critical component of the cleanup process and are used by the site manager to ensure both the short- and long-term protection of human health and the environment. For this reason it is important to understand what constitutes an IC. Specifically for EPA, ICs:
. are non-engineered instruments such as administrative and/or legal controls that minimize the potential for human exposure to contamination by limiting land or resource use;
. are generally to be used in conjunction with, rather than in lieu of, engineering measures such as waste treatment or containment;
. can be used during all stages of the cleanup process to accomplish various cleanup-related objectives; and,
. should be “layered” (i.e., use multiple ICs) or implemented in a series to provide overlapping assurances of protection from contamination.
ICs are vital elements of response alternatives because they simultaneously influence and supplement the physical component of the remedy to be implemented. On the one hand, the right mix of ICs can help ensure the protectiveness of the remedy; on the other, limitations in ICs may lead to reevaluation and adjustment of the remedy components, including the proposed ICs. At some sites, remedy contingencies may protect against uncertainties in the ability of the ICs to provide the required long-term protectiveness. These points illustrate how important it is for site managers to evaluate ICs as thoroughly as the other remedy components in the Feasibility Study (FS) or Corrective Measures Study (CMS), when looking for the best ICs for addressing site-specific circumstances. Adding ICs on as an afterthought without carefully thinking about their objectives, how the ICs fit into the overall remedy, and whether the ICs can be realistically implemented in a reliable and enforceable manner, could jeopardize the effectiveness of the entire remedy.
Often ICs are more effective if they are layered or implemented in series. Layering means using different types of ICs at the same time to enhance the protectiveness of the remedy. For example, to restrict land use, the site manager may issue an enforcement tool [e.g., Unilateral Administrative Order (UAO)]; obtain an easement; initiate discussions with local governments about a potential zoning change; and enhance future awareness of the restrictions by recording them in a deed notice and in a state registry of contaminated sites. Also, the effectiveness of a remedy may be enhanced when ICs are used in conjunction with physical barriers, such as fences, to limit access to contaminated areas.
ICs may also be applied in series to ensure both the short- and long-term effectiveness of the remedy. For example, the site manager may use an enforcement tool to require the land owner to obtain an easement from an adjacent property owner in order to conduct ground water sampling or implement a portion of the active remedy. This easement may not be needed for the long-term effectiveness of the remedy and is terminated when the construction is complete. At another site, the site manager may use an Administrative Order on Consent (AOC) or permit condition to prohibit the land owner from developing the site during the investigation. Later, the site manager may add a provision to the Consent Decree (CD) or the permit requiring the land owner to notify EPA if the property is to be sold and to work with the local government to implement zoning restrictions on the property.
CERCLA as amended by SARA, the NCP and RCRA support the use of ICs in remediation of a site:
CERCLA—Section 121(d)(2)(B)(ii)(III) refers to the use of enforceable measures (e.g., ICs) as part of the remedial alternative at sites. EPA can enforce the implementation of ICs, but not necessarily their long term maintenance. For example, the local government with zoning jurisdiction may agree to change the zoning of the site to prohibit residential land uses as part of the remedy, but the local government retains the authority to change the zoning designation in the future. EPA is authorized, under CERCLA section 104(j), to acquire (by purchase, lease or otherwise) real property interests, such as easements, needed to conduct a remedial action provided that the state in which the interest is to be acquired is willing to accept transfer of the interest following the remedial action. Transfers of contaminated Federal property are subject to special deed requirements under CERCLA sections 120(h)(3)(A)(iii) and 120(h)(3)(C)(ii)(I) and (II).
NCP—the NCP provides EPA’s expectations for developing appropriate remedial alternatives, including ICs under CERCLA. In particular, it states that EPA expects to use treatment to address the principal threats posed by sites; engineering controls for wastes that pose relatively low risk or where treatment is impracticable; and a combination of the two to protect human health and the environment [40 CFR 300.430(a)(1)(iii)(A), (B), and (C)]. In appropriate situations, a combination of treatment, containment, and ICs may be necessary. The NCP also emphasizes the use of ICs to supplement engineering controls during all phases of cleanup and as a component of the completed remedy, but cautions against their use as the sole remedy unless active response measures are determined to be impracticable [40 CFR 300.430(a)(1)(iii)(D)]. In the case where ICs are the entire remedy, the response to comments section of the preamble to the NCP states that special precautions must be made to ensure the controls are reliable (55 Federal Register, March 8, 1990, page 8706). Recognizing that EPA may not have the authority to implement such controls, the NCP requires that (for fund financed sites) the state assure that the ICs implemented as part of the remedial action are in place, reliable, and will remain in place after the initiation of operation and maintenance [40 CFR 300.510(c)(1)]. Lastly, for Superfund financed and private sites, the NCP also requires the state to hold any interest in property that is acquired (once the site goes into O&M) to ensure the reliability of ICs [40 CFR 300.510(f)].
RCRA—RCRA requirements are imposed through legal mechanisms different from those used under CERCLA. In RCRA, authorized states are the primary decision makers, this results in a wide variety of state-specific mechanisms being available. This fact sheet does not attempt to list all of the state and local IC mechanisms, but to identify key principles for the use of ICs. If the IC is being imposed through a RCRA permit, steps should be taken to ensure that long-term enforcement is not lost through property transfer or permit expiration. Cleanups under RCRA are conducted in connection with the closure of regulated units and facility-wide corrective action either under a permit [RCRA sections 3004(u) and (v)], interim status order [RCRA section 3008(h)] or imminent hazard order [RCRA section 7003] or other authorities. It should also be noted that landfill closure requirements under 40 CFR 264.119 require deed notices that the land has been used to manage hazardous waste, although the notice itself does not restrict future use. EPA expects to use a combination of methods (e.g., treatment, engineering, and institutional controls) under RCRA, as appropriate, to achieve protection of human health and the environment. EPA also expects to use ICs, such as water and land use restrictions, primarily to supplement engineering controls, as appropriate, for short- and long-term management to prevent or limit exposure to hazardous wastes and constituents. ICs are not generally expected to be the sole remedial action.
Proprietary Controls—These controls, such as easements and covenants, have their basis in real property law and are unique in that they generally create legal property interests. In other words, proprietary controls involve legal instruments placed in the chain of title of the site or property. The instrument may include the conveyance of a property interest from the owner (grantor) to a second party (grantee) for the purpose of restricting land or resource use. An example of this type of control is an easement that provides access rights to a property so the Potentially Responsible Party (PRP), facility owner/operator, or regulatory agency may inspect and monitor a groundwater pump-and-treat system or cover system. The benefit of these types of controls is that they can be binding on subsequent purchasers of the property (successors in title) and transferable, which may make them more reliable in the long-term than other types of ICs.
However, proprietary controls also have their drawbacks. Property law can be complicated because a property owner has many individual rights with respect to his or her property. To illustrate this point, property rights can be thought of as a bundle of sticks, with each stick representing a single right (e.g., the right to collect rents). The terminology, enforceability, and effect of each of these rights is largely dependent upon real property common law and the state where the site is located. A property owner can convey certain rights to other entities (either voluntarily or involuntarily through condemnation) and keep other rights. For example, if it is determined that a long-term easement is required to ensure remedy protectiveness, this “right” would need to be transferred by the property owner to another entity. For the easement to bind subsequent purchasers, some states require that the entity be an adjacent property owner. This may complicate long-term monitoring and enforcement since the party receiving the right (the grantee) is often not an adjacent property owner. To eliminate this problem, a proprietary control may be established “in gross.” This means that the holder of the control (the grantee) does not need to be the owner of the adjacent property. However, it should be noted that easements in gross may not be enforceable under the laws of some states. State property laws governing easements should therefore be researched before this type of IC is selected in order to determine its enforceability in that jurisdiction.
A distinction at Federal sites being transferred to the private sector is that CERCLA sections 120(h)(3)(A)(iii) and 120(h)(3)(c)(ii) and (iii) require that property interests be retained by the Federal government. At active Federal sites, proprietary controls may not be an option because a deed does not exist or the landholding Federal agency lacks the authority to encumber the property. However, the landholding Agency may be willing to enter a Memorandum of Understanding (MOU) with EPA and/or state regulators providing for specific IC implementation plans, periodic inspections and other activities which it will undertake (in lieu of deed restrictions) to assure that ICs for the active site will remain effective.
Enforcement and Permit Tools with IC Components—Under sections 104 and 106(a) of CERCLA, UAOs and AOCs can be issued or negotiated to compel the land owner (usually a PRP) to limit certain site activities at both Federal and private sites; CDS can also be negotiated at private sites under 122(d). Similarly, EPA can enforce permits, conditions and/or issue orders under RCRA sections 3004(a), 3004(u) and (v), 3008(h), or 7003. These tools are frequently used by site managers, but may also have significant shortcomings that should be thoroughly evaluated. For example, most enforcement agreements are only binding on the signatories, and the property restrictions are not transferred through a property transaction. For example, if a PRP under CERCLA signs a CD or receives a UAO and then sells his or her property, many types of ICs would not be enforceable against the next owner. This could jeopardize the protectiveness of the remedy. One possible solution to this problem is to ensure that the enforcement tool contains provisions requiring EPA or state notification and/or approval prior to a property transfer. In this instance, EPA could negotiate an agreement with the new owner. Another solution is to require signatories of an enforcement document to implement additional long-term institutional controls such as information devices or proprietary controls (i.e., layering).
Informational Devices—Informational tools provide information or notification that residual or capped contamination may remain on site. Common examples include state registries of contaminated properties, deed notices, and advisories. Due to the nature of some informational devices (e.g., deed or hazard notices) and their potential non-enforceability, it is important to carefully consider the objective of this category of ICs. Informational devices are most likely to be used as a secondary “layer” to help ensure the overall reliability of other ICs.
ICs at Federal Facilities
Because of Federal ownership, there are significant differences in the way ICs are applied at Federal facilities. Some proprietary or governmental controls cannot be applied on active Federal facilities. However, for properties being transferred as part of a base closure, the Department of Defense does have the authority to restrict property by retaining a property interest (i.e., an easement intended to assure the protectiveness of the remedy). For active bases, ICs are commonly addressed through remedy selection documents, base master plans, and separate MOUs. More detailed information on ICs and Federal facilities is contained in “Institutional Controls: A Reference Manual (Workgroup Draft - March 1998)” and in the FFRRO IC guidance ("Institutional Controls and Transfer of Real Property under CERCLA Section 120(h)(3)(A), (B), or (C)," January, 2000).
Legal Mechanisms for Imposing ICs Under CERCLA and RCRA
CERCLA and RCRA employ the same types of ICs to reduce exposure to residual contamination. However, as explained below, EPA’s legal authority to establish, monitor and enforce ICs varies significantly between the two programs. As a result, officials involved in cleanups need to appreciate the range of options available under each program before determining whether, and to what extent, ICs should be incorporated into a remedial decision.
At CERCLA sites, EPA often imposes ICs via enforcement tools (e.g., UAOs, AOCs, and CDs). Since these enforcement tools only bind the parties named in the enforcement document, it may be necessary to require the parties to implement ICs that “run with the land” (i.e., applied to the property itself) in order to bind subsequent land owners. For Fund-lead CERCLA sites, the lead agency has the responsibility for ensuring ICs are implemented. Legal mechanisms such as UAOs, AOCs and CDS should also require reporting to EPA and/or the state of any sale of the property.
Under RCRA, ICs are typically imposed through permit conditions or by orders issued under section 3008(h). In certain circumstances cleanup may also be required under the imminent hazard order authority of section 7003. In the case where an IC is meant to continue beyond the expiration of a permit, an order may be required to ensure the IC remains in effect for the long term RCRA permit writers should incorporate ICs as specific permit conditions, where appropriate. By doing so, such conditions would be enforceable through the permit. At the same time, permit writers should consider whether additional ICs are available (e.g., governmental and/or proprietary controls) to ensure that subsequent property owners will be aware of, and bound by, the same types of restrictions. Similar factors should be considered when preparing RCRA corrective action orders to ensure that both the current facility owner/operator and any subsequent property owners are subject to effective and enforceable ICs that will minimize exposure to any residual contamination.
One significant difference between RCRA and CERCLA is that RCRA generally does not authorize EPA to acquire any interests in property. Therefore, many proprietary controls (such as easements) will require the involvement of third parties (e.g., states or local governments) under RCRA.
ICs and Future Land Use
Land use and ICs are usually linked. As a site moves through the Superfund Remedial Investigation/Feasibility Study (RI/FS) or RCRA Facility Investigation/Corrective Measures Study (RFI/CMS), site managers should develop assumptions about reasonably anticipated future land uses and consider whether ICs will be needed to maintain these uses over time. EPA’s land use guidance (Land Use in CERCLA Remedy Selection Process, OSWER Directive No. 9355.7-04, May 25, 1995) states that the site manager should discuss reasonably anticipated future uses of the site with local land use planning authorities, local officials, and the public, as appropriate, as early as possible during the scoping phase of the RI/FS or RFI/CMS. Where there is a possibility that the land will not be cleaned up to a level that supports unlimited use and unrestricted exposure, the site manager should also discuss potential ICs that may be appropriate, including legal implementation issues, jurisdictional questions, the impact of layering ICs and reliability and enforceability concerns. It is also important for the site manager to recognize that, in addition to land uses, ICs can be used to affect specific activities at sites (e.g., fishing prohibitions).
Screening ICs
The need for ICs can be driven by both the need to guard against potential exposure and to protect a remedy. If any remedial options being evaluated in the FS or CMS leave waste in place that would not result in unrestricted use and unlimited exposure, ICs should be considered to ensure that unacceptable exposure from residual contamination does not occur. However, ICs may not be necessary if the waste that is left at the site allows for unrestricted use and unlimited exposure. Remedy options that typically leave residual wastes on site and necessitate ICs include capping waste in place, construction of containment facilities, natural attenuation and long-term pumping-and-treatment of groundwater.
ICs should be evaluated in the same level of detail as other remedy components. ICs are considered response actions under CERCLA and RCRA. ICs must meet all statutory requirements, and are subject to the nine evaluation criteria outlined in the NCP (40 CFR 300.430 (e)(9)(i)) for CERCLA cleanups. The balancing criteria recommended for corrective actions should generally be used in evaluating ICs under RCRA. However, before applying these criteria, the site manager should first make several determinations: *&%#@^$_jf FASCISTS AND COMMUNISTS!
Determining the Role of Local Governments
CERCLA, RCRA, and the NCP do not specify a role for local governments in implementing the selected remedy. However, a local government is often the only entity that has the legal authority to implement, monitor and enforce certain types of ICs (e.g., zoning changes). While EPA and the states take the lead on CERCLA and RCRA response activities, local governments have an important role to play in at least three areas: (1) determining future land use; (2) helping engage the public and assisting in public involvement activities; and (3) implementation and long-term monitoring and enforcement of ICs. Therefore, it is critical that the site manager and his or her state counterpart involve the appropriate local government agency in discussions on the types of controls that are being considered. The capability and willingness of the local government to implement and ensure the short- or long-term effectiveness of the proposed ICs should be considered during the RI/FS or RFI/CMS. In certain cases, cooperative agreements may be considered to assist local governments in the implementation, monitoring and enforcement of required ICs.
ICs in CERCLA Removal Actions
ICs will rarely be a component of true emergencies where a time critical action serves as the only response at a site. It is more likely that a site manager will choose ICs as a component of a non-time critical removal action or during a follow-up remedial action. A post-removal site control agreement must be completed before commencing a fund-financed removal action where ICs are included in post-removal site control (OSWER Directive No. 9360.22-02). As in the remedial process, begin considering ICs when conducting an analysis of land use assumptions during the removal decision-making process. Where a final, site-wide, non-time critical removal remedy decision will be made, ICs should be thoroughly and rigorously evaluated with all other response actions in the Engineering Evaluation/Cost Analysis (EE/CA). In short, because ICs are considered to be actions, apply the full criteria required by
the NCP for EE/CA evaluations. It is anticipated that ICs would not be chosen as the sole action for a removal.
It is fundamental that a remedy under RCRA or CERCLA that includes ICs meet the following threshold criteria:
• protect human health and the environment; and • for CERCLA sites, comply with Applicable or Relevant and Appropriate Requirements (ARARs).
The site manager for RCRA facilities should also consider whether remedies that include ICs:
• attain media cleanup standards or comply with applicable standards for waste management; and
• control the source(s) of releases so as to reduce or eliminate, to the extent practicable, further releases of hazardous waste that might cause threats to human health and the environment.
Balancing Criteria
The site manager evaluates the individual, layered or series of ICs to determine their respective strengths and weaknesses. ICs are also evaluated in combination with engineered controls to identify the key tradeoffs that should be balanced for the site. Following are balancing criteria required by CERCLA and the NCP and recommended by the RCRA program in guidance.
Long-term effectiveness and permanence (CERCLA) or reliability (RCRA)—Under both CERCLA and RCRA, this factor assesses the permanence/reliability and effectiveness of ICs that may be used to manage treatment residuals or untreated wastes that remain at the site over time. When evaluating whether an IC will be effective over the long-term, the site manager should consider factors such as: whether the property is a government-owned site or a privately-owned site that is likely to change hands; the applicability of ICs to multiple property owners; the size of the area to be managed; the number of parcels; the contaminated media to be addressed; the persistence of the contamination; whether site contamination is well-defined; and whether local governments or other governing bodies are willing and able to monitor and enforce long-term ICs. The site manager should also consider the contaminated media to be addressed by the ICs. Different ICs may be required for different media.
Where ICs must be effective for a long period, either proprietary or governmental controls should be considered because they generally run with the land and are enforceable. However, both proprietary and governmental controls have weaknesses in terms of long-term reliability. For example, with proprietary controls, common law doctrines may restrict enforcement by parties who do not own adjoining land. This can render proprietary controls ineffective if EPA or another party capable of enforcing the control is not the owner of the adjacent property. To eliminate this problem, proprietary controls may be established "in gross," signifying that the holder of the control does not need to be the owner of the adjacent property. However, some courts do not recognize in gross proprietary controls.
At some sites, governmental controls may be preferable to proprietary controls. For example, the site manager might work with a local government to pass an ordinance to restrict construction or invasive digging that might disturb or cause exposure to covered residual lead contamination in a large residential area. The implementation of government controls might be considered a beneficial addition to information tools that may be forgotten over the long term or an enforcement action that would be binding only on certain parties.
Proprietary controls would likely be deemed impractical at such a site
due to the complex and uncertain task of obtaining easements from
multiple property owners.
Like proprietary controls, the use of governmental controls may not
be effective over the long term. Of primary concern are the political
and fiscal constraints that may affect the ability of a state or local
government to enforce the controls. Similarly, governmental controls
may be problematic when the local or state government is or may
become the site owner or operator because of the appearance of a
conflict of interest. Regardless of the control selected, its viability
over the long term needs to be closely evaluated.
Reduction of toxicity, mobility, or volume through treatment—
This CERCLA and RCRA criterion does not apply since ICs are not
treatment measures.
Short-term Effectiveness—Short-term effectiveness of ICs at
CERCLA and RCRA sites should be evaluated with respect to
potential effects on human health and the environment during
construction and implementation of the remedy. In order to satisfy
this criterion, the remedy might entail the use of an IC through an
enforcement order to compel the PRP to restrict certain uses of the
groundwater at or down gradient from the site during remediation.
After remediation is complete, other ICs might be implemented if
residual contamination remains on site (i.e., implementing ICs in
series).
Implementability—This CERCLA and RCRA criterion evaluates the
administrative feasibility of an action and/or the activities that need to
be coordinated with other offices and agencies. Implementation
factors that generally should be considered for ICs include whether the
entity responsible for implementation possesses the jurisdiction,
authority, willingness and capability to establish, monitor and enforce
ICs. A proper analysis of implementability can be complex,
considering such diverse factors as the extent to which land being
restricted is owned by liable parties and the willingness and capability
of the local government or other authority responsible for establishing
controls for land or resource use.
Cost—This CERCLA and RCRA criterion includes estimated capital
and O&M costs. In CERCLA, estimated costs for implementing,
monitoring, and enforcing ICs should be developed. For example, cost
estimates for ICs might include legal fees associated with obtaining
easements restricting land use, the costs of purchasing property rights
(e.g.., groundwater rights, easements), or the wages of the state or local
government personnel that will regularly monitor the IC to ensure that
it has not been violated. It is interesting to note that once the total
life-cycle costs of implementing, monitoring and enforcing an IC –
which may exceed 30 years – are fully calculated, it may actually be
less costly in the long term to implement a remedy that requires
treatment of the waste. For more information on estimating response
costs, see “A Guide to Developing and Documenting Cost Estimates
During the Feasibility Study,” EPA 540-R-00-002, OSWER 9355.0-
075. In RCRA, costs historically have played a less prominent role in
remediation selection. Typically cost estimates are expected to be
developed at the discretion of the owner/operator, although implementors should take into account sites where ICs are inappropriately costly.
Modifying Criteria
Typically the site manager presents the proposed remedy, including
ICs to the state, local government, and community for comment prior to
implementation. The issues and concerns of these stakeholders may
result in modifications to the remedy and are addressed by the site
manager in the remedy decision document. Following is a discussion of
these modifying criteria (note: these criteria are only
recommended in RCRA guidance).
State Acceptance—The site manager should make the appropriate
state authorities aware of the basis and scope of the ICs to be
implemented under CERCLA or RCRA, and what role, if any, the state
is expected to play to make ICs an effective part of the remedy. The
state can formally express its concerns about the use of ICs, in general,
and its role, in particular, or indicate its willingness to take on the
responsibility for implementing and enforcing the proposed ICs.
If the state’s position is uncertain at the time the remedy is selected
(e.g., for CERCLA sites, when the ROD is signed or, for RCRA
facilities, when the permit/order is issued or modified), it may be
necessary to outline contingent remedial approaches in the decision
documents. Specifically, remedies that require long-term ICs to remain
protective may require alternative actions (e.g., additional soil removal)
if the ICs are later determined to be unenforceable or cannot meet the
remedial objectives. Alternatively, at a RCRA site, it may be necessary
to leave a facility under a permit or other mechanism enforceable by the
regulating agency. If the state’s willingness or ability to implement or
enforce an IC changes after remedy selection, the protectiveness of the
remedy should generally be re-evaluated and, when necessary, remedial
decisions revised. Under CERCLA, this may require an Explanation of
Significant Differences (ESD), or even a ROD amendment. Under
RCRA, a permit modification or change to a corrective action order may
be necessary. It is important to note that under no circumstances can a
Fund-financed CERCLA remedial action be initiated without receiving
state assurances on ICs and property transfer.
Local Government and Community Acceptance—Involving the
community and local government early during the remedy decision
process will enable the site manager to more fully evaluate IC options.
Discussions with the local government and community give the site
manager the opportunity to:
• gather local government and community input on the proposed ICs;
• identify whether a particular stakeholder group may be harmed as a result of a proposed IC (for example, will a ban on fishing cause an economic hardship in the community);
• receive comment on the impacts of the potential ICs on religious or cultural customs and beliefs (e.g., preventing access to property which grows the plants that are used in a tribal ceremony); and
• determine if the community has special needs in regards to the
IC (for example, will it be necessary to publish informational
devices in multiple languages).
In addition, the local government and community’s response to certain types of ICs and the willingness and capability of the local government to monitor ICs will help the site manager determine whether the ICs will be effective overall. This is especially important if nearby property owners will need to agree to implement proprietary controls or if other governmental ICs (e.g., zoning changes) will have an impact on the community. Early involvement will also enable the community to work with the local government to develop innovative approaches to using ICs, especially in light of any future land use plans.
As with other aspects of the proposed remedy, the community should have the opportunity to comment on the proposed IC component of the remedy during the public comment period. It may be necessary to educate the community about ICs so that its members understand how the different ICs may impact their property and activities. Under CERCLA, it may also be possible, as long as all appropriate requirements are met, to provide a Technical Assistance Grant to the community so they can hire a technical expert to assist them in evaluating ICs and the overall remedy.
In some cases, it may be appropriate not to identify the exact IC required at the time of the remedy decision. In these instances the critical evaluation of the available ICs should still be conducted and the specific objective(s) of the ICs should be clearly stated in the ROD or other decision document. Examples of when this flexibility may be appropriate are contingent remedies based on pilot studies or if a remedy would not be implemented for several years and the state is developing enabling language for Conservation Easements authority.
Conclusion
The ICs outlined in this fact sheet can be important elements of environmental cleanups. ICs play an important role in limiting risk and are often needed to ensure that engineered remedies are not affected by future site activities. When selecting ICs, the site manager needs to evaluate the situation at the site, define the needs that ICs are intended to address, identify the kinds of legal and other tools available to meet these needs, and ensure the ICs are implemented effectively. All of this requires up-front planning and working closely with the Regional office attorneys, the state, community, and PRPs or facility owner/operators. Key concepts to keep in mind when implementing ICs are provided in the text box below.
If you have questions regarding the material covered in this fact sheet, consult the draft document, “Institutional Controls: A Reference Manual” or contact your Regional Coordinator in the OERR Technical Regional Response Center. For information on model language for enforcement or legal documents used to implement ICs, consult your Regional Counsel, OSRE or the Office of General Counsel.
Last Update: July 24, 2010 This page compares maximum contaminant levels (MCLs) and public health goals (PHGs).
Posted by the EPA on August 20th, 2010 - 11:58 AM
SITE INSPECTION SUMMARY
IRON MOUNTAIN MINE FIVE-YEAR REVIEW
Workshop planned on suicide prevention
A free suicide prevention training workshop will be held from 10:30 a.m. to 1:30 p.m. Friday at the Redding library.
The “Question, Persuade, Refer” training is provided by the Shasta County Health and Human Services Agency and the National Alliance on Mental Illness (NAMI) Shasta County.
The workshop is open to the public, and those in positions of leadership or authority are especially encouraged to attend. Refreshments will be provided.
Registration is required.
To register or learn more, call Katie Cassidy at 229-8426 or NAMI Shasta County at 605-1647.
| The Colbert Report | Mon - Thurs 11:30pm / 10:30c | |||
| The Word - Control-Self-Delete | ||||
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SOMEBODY MISSING A DEBRIS DAM?
T.W. ARMAN & IRON MOUNTAIN MINES, INC. INTERVENE - "TWO MINERS"
8/24/10 Herger: Federal Policies and Radical Environmentalists Kill More Northern California Jobs
Washington, D.C. – Congressman Wally Herger (R-CA) issued the following statement in response to the announcement that Sierra Pacific Industries (SPI) will close its biomass power plant in Loyalton, CA:
“I was deeply saddened to learn that SPI will be forced to suspend operations of its biomass power plant in Loyalton. It is outrageous that SPI and other forest products companies are being continually forced to make decisions like these in large part because federal policies and litigation by radical environmental groups are virtually shutting down access to our national forests. I thank and applaud SPI for its continued investment in our communities and for pursuing other opportunities to operate its power plant.
“This was another facility constructed with the hope that sufficient forest material would have been made available from our dense and overgrown forests after passage of the Herger-Feinstein Quincy Library Group Forest Recovery Act. Despite being a monumental, collaborative and bipartisan effort to get past the timber wars and restore commonsense forest management to our federal lands, the HFQLG pilot project has become the victim of extreme activist groups that abuse the regulatory and judicial processes to needlessly stall and derail implementation of this law and other forest management projects designed to protect rural communities from wildfires. Our rural areas continue to suffer as a result of this no-holds-barred assault from the radical environmental community.
“Absurdly enough, their efforts in this case have caused us to lose yet another source of clean, renewable power that serves multiple purposes: generating electricity while thinning our overstocked forests and reducing the threat of catastrophic wildfire. Renewable biomass power is widely-considered to be a win-win, yet it continues to be opposed by a hypocritical minority of ideologues who do not want to see trees cut from our California forests, despite the obvious benefits for our communities and the environment.
“This tragic news serves as further testament of the dire need to make our environmental laws work for us and not against us. While this fight has been going on for a long time, it is far from over. I will continue working for the needed reforms that will prevent continued abuses of the law and allow for balanced forest management that will create jobs and protect public health and safety by reducing the threat of catastrophic wildfire.”
DALLAS--(BUSINESS WIRE)--July 8, 2002--The Gold Anti-Trust Action Committee (GATA) urges House Representatives on the Financial Services Committee to join Congressmen Ron Paul (R-Texas) and John Larson (D-Conn.) as co-sponsors of the Monetary Reform and Accountability Act (H.R. 3732).
The bill simply requires the president and Treasury secretary to get the approval of Congress before intervening in the gold market.
» read more | email this storyMANCHESTER, Conn.--(BUSINESS WIRE)--Nov. 6, 2001--The following statement was released today by Chris Powell, Secretary/Treasurer, Gold Anti-Trust Action Committee Inc.:
"The case of Howe vs. Bank for International Settlements et al. -- I like to call it Howe vs. All the Money in the World -- was roughed up a little today but survived its first day of hearing in federal court in Boston.
"During 2 1/2 hours of oral argument, U.S. District Judge Reginald C. Lindsay dismissed two counts of the lawsuit involving securities fraud charges against defendant J.P. Morgan/Chase, and ruled that the plaintiff's method of serving lawsuit notice papers against the BIS -- by mail in English instead of by personal service in German -- was insufficient.
» read more | email this storyFor Release at 8 a.m. EDT Monday, December 11, 2000
A lawsuit filed in U.S. District Court in Boston with the support of the Gold Anti-Trust Action Committee accuses five investment houses, the Bank for International Settlements, and top officials of the U.S. Treasury Department and U.S. Federal Reserve Board of conspiring to suppress the price of gold.
The lawsuit, Docket No. 00-CV-12485-RCL, charges the defendants with price fixing, securities fraud, and breach of fiduciary duty. The U.S. government officials are also accused of exceeding their constitutional authority.
» read more | email this storyIt is time to wake up to what has been going on in the gold market. I can understand some initial reticence about grasping what The Gold Anti-Trust Action Committee has been telling you: that the gold market is being manipulated. No one wants to believe that, but enough is enough. It is time to start asking some hard questions of your traditional sources of information who have been feeding you disinformation to keep you off guard about what certain bullion dealers have been doing with " a little help from their friends."
» read more | email this storyDear Friend of GATA and Gold:
Here's the text of GATA's two-page advertisement to be published Thursday, December 9, in Roll Call, the weekly newspaper that covers the Congress of the United States and is considered the best-read publication at the U.S. Capitol.
We're very excited about this, hopeful of making a big impact and mobilizing the gold industry and gold's friends, and deeply grateful to those whose financial contributions have helped to make this possible.
» read more | email this story | 1 attachmentRYE, N.H., April 20 /PRNewswire/ -- Noted antitrust and securities law firm specialist, Berger & Montague of Philadelphia, has been retained by the Gold Anti-Trust Action Committee (GATA) in order to assist in its investigation into the alleged manipulation of the gold market. The law firm is best known for its successes in recovering billions of dollars in damages in the Drexel Burnham/Michael Milken junk bond case, The Exxon Valdez case, and recent tobacco and Holocaust cases, and many others.
» read more | email this storyLe Metropole members,
GATA is pleased to announce that we are now ready to make an all out effort to mobilize the gold community to confront those that we believe may have colluded to hold down the price of gold.
Our web site www.gata.org can be viewed on the internet and explains what the Gold Anti-Trust Action Committee is about. As the construction of our internet site has been completed, we are ready to accelerate the contribution phase of our campaign.
» read more | email this storyContact: Bill Murphy, GATA Chairman ( 214-522-3411)
RYE, NEW HAMPSHIRE, U.S.A., Monday, Feb. 8, 1999 -- The Gold Anti-Trust Action Committee has formally incorporated itself in Delaware and has begun negotiating with law firms interested in undertaking its lawsuit against the Wall Street investment houses it accuses of illegal collusion to control the price and supply of gold, other commodities, and certain related financial securities.
» read more | email this storyContact: Bill Murphy, 214-522-3411 Email: LePatron@LeMetropoleCafe.com -
RYE, NEW HAMPSHIRE, U.S.A., Monday, Jan. 25, 1999 -- An international committee has been formed to prepare an antitrust lawsuit against Wall Street investment houses and Federal Reserve officials it accuses of conspiring to suppress the price of gold.
The committee, Gold Anti-Trust Action (GATA), will solicit support from mining companies, their shareholders, political figures, and people with a philosophical interest in sustaining gold's traditional monetary function, according to the committee's chairman, Bill Murphy.
“The success of democracy depends on the existence of an educated electorate,” -- Alexander Hamilton
HABEAS CORPUS
Actual Innocence Exception to Procedural Bar—Supreme Court Cases
A state petitioner seeking federal habeas review of his or her conviction or sentence must satisfy certain procedural requirements before obtaining such review. To obtain federal habeas review of a procedurally defaulted constitutional claim, the petitioner must establish either cause for the default and actual prejudice resulting from the alleged constitutional error, or that a fundamental miscarriage of justice will result if the claim is not reviewed. The fundamental miscarriage of justice exception requires a showing of “actual innocence.” This annotation will collect and analyze the decisions of the United States Supreme Court discussing the purpose, elements, and application of the actual innocence exception as applied to applications for federal habeas review of a procedurally defaulted challenge to a conviction or a death sentence, or as a freestanding claim of actual innocence without an underlying constitutional claim. 23 A.L.R. Fed. 2d 93
INTERSTATE COMMERCE
Hobbs Act—Extortion as Affecting Interstate Commerce 24 A.L.R. Fed. 2d
The Anti-Racketeering Act, or Hobbs Act, 18 U.S.C.A. § 1951, is a broadly drawn statute designed to protect interstate commerce against a wide range of interference
by racketeering, blackmail, extortion, violence, and threats. This statute provides that acts of robbery or extortion, which are ordinarily punishable under state criminal laws, become federal offenses if they obstruct, delay, or affect interstate commerce. The courts interpreting the interstate commerce element have generally held that Congress, in accordance with the broad use of its powers, intended that the government need proof that a defendant's acts had only a slight, subtle, or de minimis effect on interstate commerce in order to satisfy this jurisdictional element.
This annotation collects and discusses the cases that have considered under what particular circumstances a crime of extortion obstructs, delays, or affects interstate commerce, for purposes of the Hobbs Act jurisdiction under, 18 U.S.C.A. § 1951.
ENVIRONMENTAL LAW
CERCLA—Public Cost Recovery Actions
Pursuant to § 107(a) of the Comprehensive Environmental Response Compensation, and Liability Act (CERCLA), 42 U.S.C.A. § 9607, a potentially responsible party (PRP) is liable for all costs of removal or remedial action incurred by the United
States Government, a State, or an Indian tribe, not inconsistent with the National Contingency Plan (NCP). A PRP bears the burden of proving such inconsistency.
The right of the government to recover response costs has been challenged in various ways for alleged inconsistency with the NCP. This annotation collects and analyzes the cases in which the courts have discussed the application of 42 U.S.C.A. § 9607 (a)(4)(A), requiring that, in public actions to recover the costs of responding to the release or threat of release of hazardous substances from a site, the response costs must not be inconsistent with the NCP. 24 A.L.R. Fed. 2d
FEDERAL TORT CLAIMS ACT
Federal Tort Claims Act—United States Supreme Court Case
The Federal Tort Claims Act (FTCA) waives sovereign immunity in suits for personal injury caused by the negligent or wrongful act or omission of any government
employee while acting within the scope of his or her office or employment (28 U.S.C.A. § 1346(b)(1)). In addition to the rules of application and exceptions
set forth in the Act itself, the United States Supreme Court has defined various rules for the application of the FTCA. This annotation collects and discusses all of the United States Supreme Court cases that have construed and applied the Federal Tort Claims Act. 24 A.L.R. Fed. 2d
HABEAS CORPUS
Actual Innocence Exception to Procedural Bar—Supreme Court Cases
A state petitioner seeking federal habeas review of his or her conviction or sentence must satisfy certain procedural requirements before obtaining such review. To obtain federal habeas review of a procedurally defaulted constitutional claim, the petitioner must establish either cause for the default and actual prejudice resulting from the alleged constitutional error, or that a fundamental miscarriage of justice will result if the claim is not reviewed. The fundamental miscarriage of justice exception requires a showing of “actual innocence.” This annotation will collect and analyze the decisions of the United States Supreme Court discussing the purpose, elements, and application of the actual innocence exception as applied to applications for federal habeas review of a procedurally defaulted challenge to a conviction or a death sentence, or as a freestanding claim of actual innocence without an underlying constitutional claim. 23 A.L.R. Fed. 2d 93
INTERSTATE COMMERCE
Hobbs Act—Extortion as Affecting Interstate Commerce 24 A.L.R. Fed. 2d
The Anti-Racketeering Act, or Hobbs Act, 18 U.S.C.A. § 1951, is a broadly drawn statute designed to protect interstate commerce against a wide range of interference
by racketeering, blackmail, extortion, violence, and threats. This statute provides that acts of robbery or extortion, which are ordinarily punishable under state criminal laws, become federal offenses if they obstruct, delay, or affect interstate commerce. The courts interpreting the interstate commerce element have generally held that Congress, in accordance with the broad use of its powers, intended that the government need proof that a defendant's acts had only a slight, subtle, or de minimis effect on interstate commerce in order to satisfy this jurisdictional element.
This annotation collects and discusses the cases that have considered under what particular circumstances a crime of extortion obstructs, delays, or affects interstate commerce, for purposes of the Hobbs Act jurisdiction under, 18 U.S.C.A. § 1951.
ENVIRONMENTAL LAW
CERCLA—Public Cost Recovery Actions
Pursuant to § 107(a) of the Comprehensive Environmental Response Compensation, and Liability Act (CERCLA), 42 U.S.C.A. § 9607, a potentially responsible party (PRP) is liable for all costs of removal or remedial action incurred by the United
States Government, a State, or an Indian tribe, not inconsistent with the National Contingency Plan (NCP). A PRP bears the burden of proving such inconsistency.
The right of the government to recover response costs has been challenged in various ways for alleged inconsistency with the NCP. This annotation collects and analyzes the cases in which the courts have discussed the application of 42 U.S.C.A. § 9607 (a)(4)(A), requiring that, in public actions to recover the costs of responding to the release or threat of release of hazardous substances from a site, the response costs must not be inconsistent with the NCP. 24 A.L.R. Fed. 2d
FEDERAL TORT CLAIMS ACT
Federal Tort Claims Act—United States Supreme Court Case
The Federal Tort Claims Act (FTCA) waives sovereign immunity in suits for personal injury caused by the negligent or wrongful act or omission of any government
employee while acting within the scope of his or her office or employment (28 U.S.C.A. § 1346(b)(1)). In addition to the rules of application and exceptions
set forth in the Act itself, the United States Supreme Court has defined various rules for the application of the FTCA. This annotation collects and discusses all of the United States Supreme Court cases that have construed and applied the Federal Tort Claims Act. 24 A.L.R. Fed. 2d
BANKS AND BANKING
Construction and Application of Resolution Trust Corporation
Whistleblower Act, 12 U.S.C.A. § 1441a(q).
24 A.L.R. Fed. 2d
BANKRUPTCY AND INSOLVENCY
What Constitutes “Willful Violation” of Automatic
Stay Provisions of Bankruptcy Code (11 U.S.C.A.
§ 362(k)) Sufficient to Award Damages—Chapter 7
Cases. 23 A.L.R. Fed. 2d 339
What Constitutes “Moneyed, Business, or Commercial
Corporation” Subject to Involuntary Bankruptcy
or Reorganization Upon Creditors' Petition Under
11 U.S.C.A. § 303(a) and Predecessor Statutes. 24
A.L.R. Fed. 2d
CIVIL RIGHTS AND
DISCRIMINATION
What Constitutes Substantial Limitation
on Major Life Activity of Lifting for
Purposes of Americans with Disabilities
Act (42 U.S.C.A. §§12101 to 12213). 23
A.L.R. Fed. 2d 197
Statute of Limitations Applicable to, and Accrual of,
Actions for Attorney's Fees Brought Under Individuals
with Disabilities Education Act § 615(i)(3)(B),
as amended, 20 U.S.C.A. § 1415(i)(3)(B). 23 A.L.R.
Fed. 2d 553
Tolling of the Time Period for Bringing Title VII
Action Under § 706 of Civil Rights Act of 1964 (42
U.S.C.A. § 2000e-5(f)(1))—Based on Neglect or Misconduct
of Third Party. 24 A.L.R. Fed. 2d
Requirement That Employees Speak English in
Workplace as Violative of Federal Constitutional and
Statutory Law. 24 A.L.R. Fed. 2d
COMMODITY FUTURES AND
EXCHANGES
Construction and Application of Limitations Provision
of Commodity Exchange Act, 7 U.S.C.A. § 25(c). 23
A.L.R. Fed. 2d 467
CRIMINAL LAW
What Constitutes Obstruction, Delay, or Effect on
Commerce for Purposes of Hobbs Act (18 U.S.C.A.
§ 1951)—Robbery Cases. 23 A.L.R. Fed. 2d 1
Actual Innocence Exception to Procedural Bars in
Federal Habeas Cases—Supreme Court Cases. 23
A.L.R. Fed. 2d 93
What Constitutes Obstruction, Delay, or Effect on
Commerce for Purposes of Hobbs Act (18 U.S.C.A.
§ 1951)—Extortion Cases. 24 A.L.R. Fed. 2d
ENVIRONMENTAL LAW
Application of Requirement in §107(a) of Comprehensive
Environmental Response, Compensation,
and Liability Act (42 USCA § 9607) that Public Costrecovery
Actions not be Inconsistent with National
Contingency Plan. 24 A.L.R. Fed. 2d
FIRST AMENDMENT
First Amendment Protection for Accountants Subjected
to Discharge, Transfer, or Discipline Because
of Speech. 24 A.L.R. Fed. 2d
FEDERAL TORT CLAIMS ACT
Construction and Application of Combatant Activities
Exception to Federal Tort Claims Act, 28 U.S.C.A.
§ 2680(j). 23 A.L.R. Fed. 2d 489
Construction and Application of Federal Tort Claims
Act— United States Supreme Court Cases. 24 A.L.R.
Fed. 2d
HABEAS CORPUS
Actual Innocence Exception to Procedural Bars in
Federal Habeas Cases—Supreme Court Cases. 23
A.L.R. Fed. 2d 93
HOBBS ACT
What Constitutes Obstruction, Delay, or Effect on
Commerce for Purposes of Hobbs Act (18 U.S.C.A.
§ 1951)—Robbery Cases. 23 A.L.R. Fed. 2d 1
What Constitutes Obstruction, Delay, or Effect on
Commerce for Purposes of Hobbs Act (18 U.S.C.A.
§ 1951)—Extortion Cases. 24 A.L.R. Fed. 2d
IMMIGRATION AND NATURALIZATION
Validity, Construction, and Application of 8 U.S.C.A.
§ 1182(a)(3)(B), Providing for Inadmissibility of
Persons Engaged in Terroristic Activity. 23 A.L.R.
Fed. 2d 171
LIMITATION OF ACTIONS
Construction and Application of Limitations Provision
of Commodity Exchange Act, 7 U.S.C.A. § 25(c). 23
A.L.R. Fed. 2d 467
Statute of Limitations Applicable to, and Accrual of,
Actions for Attorney's Fees Brought Under Individuals
with Disabilities Education Act § 615(i)(3)(B),
as amended, 20 U.S.C.A. § 1415(i)(3)(B). 23 A.L.R.
Fed. 2d 553
Tolling of the Time Period for Bringing Title VII
Action Under § 706 of Civil Rights Act of 1964 (42
U.S.C.A. § 2000e-5(f)(1))—Based on Neglect or Misconduct
of Third Party. 24 A.L.R. Fed. 2d
PUBLIC OFFICERS AND EMPLOYEES
Construction and Application of Public Safety Officers'
Benefits Act (PSOBA), 42 U.S.C.A. §§3796 to
3796d-7. 23 A.L.R. Fed. 2d 129
Merit Systems Protection Board Jurisdiction Over
Individual Right of Action (IRA) Appeal. 24 A.L.R.
Fed. 2d
SEARCH AND SEIZURE
Construction and Application of Common Law and
Statutory Knock and Announce Rule and No-Knock
Exception—Supreme Court Cases. 23 A.L.R. Fed.
2d 537
TERRORISM
Validity, Construction, and Application of 8 U.S.C.A.
§ 1182(a)(3)(B), Providing for Inadmissibility of
Persons Engaged in Terroristic Activity. 23 A.L.R.
Fed. 2d 171
WAR
Construction and Application of Combatant Activities
Exception to Federal Tort Claims Act, 28 U.S.C.A.
§ 2680(j). 23 A.L.R. Fed. 2d 489
Liability of Civilian Contractors Engaged in Providing
Security or Operational Support Services Under Contract
to Department of Defense, Department of State,
or Coalition Provisional Authority for Injuries to Their
Employees, Members of Armed Forces, Foreign Nationals,
and Their Survivors. 24 A.L.R. Fed. 2d
John Driscoll/The Times-Standard
Posted: 09/04/2010
A suite of regulations for the Klamath River could be adopted by the state on Tuesday, but the owner of four dams on the river is going into that hearing fighting against strict provisions proposed to clean up the polluted waterway.
The State Water Resources Control Board will consider a package meant to address excessive nutrients, algae and overly warm water. The limits have been in the works for years, and the state is under court order to have them in place and approved by the U.S. Environmental Protection Agency by year's end.
Pacificorp, the owner of the four dams, has attacked the science used in the process as based on flawed assumptions, and complained that the standards being set are unrealistic. The company has signed agreements with more than two dozen tribes, agencies and fishing and environmental groups to tear out the four dams -- Iron Gate , J.C. Boyle, Copco 1 and Copco 2 -- but appears to be covering its bases in case the dam removal process collapses.
Just this week, the Humboldt County Department of Environmental Health posted warnings along the lower river about the presence of toxic blue-green algae blooms, cautioning people and pets against contact with the water.
Among the water quality problems that exist, according to the guidelines -- called Total Maximum Daily Load, or TMDL -- drafted by the North Coast Regional Water Quality Control Board, are water too warm for salmon migration and spawning and conditions not beneficial to sport and commercial fishing or to American Indian cultural uses and subsistence fishing.
Bill Kier of Kier Associates, Fisheries and Watershed Professionals, said that the science used in writing the regulations has been supported by nearly everyone involved in the complex process except Pacificorp.
”The TMDL that's before the state board at this point is the very best product that could be produced,” Kier said.
The multi-party agreement to take out the dams is being studied by the federal government, and the U.S. Secretary of the Interior must decide by 2012 whether the massive effort is in the public's interest. While a fund is currently being built through rate increases to Pacificorp's Oregon customers to pay for that state's share of the project, California 's share is currently in question. A water bond floated by California was originally slated for the November ballot, but its huge cost, the wet spring and a lack of support in the polls prompted lawmakers to pull it. That bond had $250 million in it for the Klamath dams.
As part of a parallel agreement, about $1 billion would be spent on a variety of restoration projects, including wetland restoration efforts upstream believed to be an essential part of improving water quality on the river.
Kier said that a strong TMDL adopted now could make it difficult for Pacificorp to get state certification to continue operation of its dams if the dam removal process doesn't go through.
The demand for TMDLs on a number of Northern California rivers stretches back to a 1995 lawsuit brought by the Pacific Coast Federation of Fishermen's Associations, which asked the U.S. District Court in the region to force their development. The regional water board adopted regulations for the other rivers. But it wasn't until 2006 that the EPA listed the river as impaired under the federal Clean Water Act that the regional water board tackled the Klamath. The court allowed a delay in the schedule, but that timeline runs out in December.
The regional board determined that the Klamath's water is too warm due to the condition of the water crossing the state line from Oregon , heating of water in Pacificorp reservoirs and the Iron Gate Hatchery, and warming of water in major tributaries. Excess nutrients, organic matter and algae, and reduced dissolved oxygen -- harmful to fish and aquatic life -- are due to wetland conversion, agriculture, logging, roads, Pacificorp's reservoirs, the hatchery and suction dredging, the water board determined.
In comments lodged with the regional water board, Pacificorp holds that the water quality problems start in Upper Klamath Lake , and that measures taken downstream can't possibly meet the TMDL objectives. Pacificorp can't control the sources that contribute to poor water quality upstream of its facilities, it has argued, making the regulations inappropriate and not feasible.
Pacificorp spokesman Art Sasse wrote in an e-mail that the company would like to see good science, not “quick science” as imposed by the EPA.
”Through the settlement process Pacificorp is collaboratively (working) with basin stakeholders to implement key provisions of the Klamath Hydroelectric Settlement Agreement that will improve water quality prior to potential removal of the dams, if that is the ultimate decision of the Secretary of the Interior, and that will improve water quality if the dams are not removed,” Sasse wrote.
The company will bring its case to the State Water Board hearing in Sacramento on Tuesday.
Karuk Tribe Klamath Campaign Coordinator Craig Tucker said that Pacificorp has been a good partner during dam removal talks, but said it was disappointing that the company is fighting the TMDLs while the water quality in the river continues to degrade.
”There are ceremonial leaders (from the tribe) bathing in the river today,” Tucker said, in the midst of algae blooms.
He said that the TMDL is fair and scientifically sound, and will make a dramatic improvement in water quality.
John Driscoll covers natural resources/industry. He can be reached at 441-0504 or jdriscoll@times-standard.comAnimal rescue group to hold flea market
Rescued Animals in Need (RAIN) will hold its first flea market from 10 a.m. to 4 p.m. Sept. 12 in the vacant lot next to the RAIN Thrift Store, 7355 Black Butte Road in the Black Butte Plaza, in Shingletown.
Booths are $15 to rent, and the proceeds go directly to RAIN.
The flea market will include food and music and will be held on the second weekend of every month until the rainy season begins.
RAIN is a nonprofit, no-kill animal rescue organization based in Shingletown. Contact Paul Harmon at 474-5885 for more information.
Beginning in August 2010 the DOC's Statewide Watershed Program will once again offer grants for watershed coordination assistance. With a new source of funding from Proposition 84 – Safe Drinking Water, Water Quality and Supply, Flood Control, River and Coastal Protection Act of 2006, the effort will be expanded. Grants will be available using a competitive process, to special districts, nonprofit groups, and local governments throughout the State, to assist in developing and implementing community based watershed programs.
GO GREEN!
EPA News You Can Use - August 2010
http://www.epa.gov/gogreen
IN THIS ISSUE:
Enviro-Tip of the Month
What You Can Do, What You Can Use
Upcoming Events and Opportunities
About This Newsletter
-----------------------------------------------------
ENVIRO-TIP OF THE MONTH
Prepare for emergencies. Find out what you can do to reduce risks from environmental hazards before, during, and after if a natural disaster strikes. September is National Preparedness Month and also the peak of hurricane activity.
http://www.epa.gov/naturalevents
-----------------------------------------------------
WHAT YOU CAN DO, WHAT YOU CAN USE
Share your thoughts online! There are several new opportunities how you can let us know what you think and discuss with others online:
-Comment on a new fuel economy label. Either of two new label designs feature a letter grade for fuel economy and performance; or keep the current label's focus on miles per gallon. Share what information you need to make the best economic and environmental decisions for buying a new car. Fuel Economy Web site: http://www.epa.gov/fueleconomy/
http://yosemite.epa.gov/opa/admpress.nsf/names/hq_2010-8-30_Fuel_Economy_Label
-Tell us how the agency can improve protection of drinking water.
http://yosemite.epa.gov/opa/admpress.nsf/names/hq_2010-8-17_water_online_forum
-Comment on a draft strategy to protect our nation's lakes, streams and coastal waters.
http://yosemite.epa.gov/opa/admpress.nsf/names/hq_2010-8-20_Draft_Water_Strategy
Vote in the Carson Contest. Pick your favorite submissions in the fourth annual Rachel Carson Sense of Wonder Contest, among finalists in five categories: photography, essay, poetry, dance and mixed media. The deadline for voting is November 1.
http://www.epa.gov/aging/resources/thesenseofwonder/2010/vote.htm
Indian student artwork contest. Native American students can submit artwork for a poster contest aimed at protecting the environment by encouraging the reporting of possible environmental crimes. The contest is open to middle and high school students members of a federally recognized Indian tribe. Entries are due October 8.
http://yosemite.epa.gov/opa/admpress.nsf/names/hq_2010-8-30_artwork
Control bed bugs carefully. Beware of individuals or companies who offer to control bedbugs with unrealistic promises of effectiveness or low cost. Never use, or allow anyone else to use, a pesticide indoors that is intended for outdoor use, as indicated on the label. Using the wrong pesticide or using it incorrectly to treat for bedbugs can make you, your family, and your pets sick. It can also make your home unsafe to live in - and may not solve the bed bug problem.
http://epa.gov/pesticides/bedbugs/
Coal ash public hearings. EPA is hosting six public hearings in September about a proposal to regulate disposal and management of coal ash from coal-fired power plants. The need for national management was emphasized by the December 2008 Kingston, TN, spill of coal ash.
http://yosemite.epa.gov/opa/admpress.nsf/names/hq_2010-8-19_coal_ash
Share your thoughts online or attend an upcoming public listening session under President Obama's national dialogue about conservation in America.
Share ideas online: http://ideas.usda.gov/ago/ideas.nsf/
Listening sessions: http://www.doi.gov/americasgreatoutdoors/
Join the Greenversation - share your thoughts with EPA employees and other readers, on the daily EPA employee blog.
http://blog.epa.gov/blog
Sneak peek for September: Help the environment by shopping for back-to-school clothes and supplies at retail stores that have earned the Energy Star label. Find a store near you:
http://www.energystar.gov/labeledstores
Seven Revolutions is an ambitious effort at the Center for Strategic and International Studies to answer these questions: What will the world look like in 2025? What are the driving forces that will transform our world, and what will changes mean for decision-makers?
September 7-10, 2010
California and the World
Ocean 2010 Conference
Hyatt Regency, San
Francisco, CA
http://www.cce.csus.edu/cwo
(916) 278-4433 or (800) 858-7743
RUSKIN DEVELOPMENTS ORIGINAL MINING PLANS
NEW JOINT VENTURE OPERATING AGREEMENT FOR IRON MOUNTAIN MINE
AUGUST 31 - ADMINISTRATIVE REVIEW OF IRON MOUNTAIN MINE REMEDIATION BEGINS IN NINTH CIRCUIT COURT
Bayer Chief Says Company Continues to Work to Restore Trust
The Environmental Law Section is No Longer Available
"DON'T JUST TAKE THE PUNCH BOWL AWAY, POUR IT OUT"
FINANCIAL CRISIS ENQUIRY COMMISSION HON. CONGRESSMAN BILL THOMAS TO FED
Fictitious names are particularly useful when the client just brought you the case, the statute of limitations is about to run, and you've had time to identify only one of several potentially liable defendants. California law does not give plaintiffs unlimited "leisure" to substitute the true name for the fictitious name, but the unique California "Doe" procedure certainly justifies the outcome in McAtee — even applying what the Seventh Circuit calls the "majority view." That is because, in McAtee , the plaintiff appears to have acted diligently in naming the "Doe" defendant.
In Springman , the Seventh Circuit held that amending the complaint to substitute one named defendant for another "commenced" a new action for CAFA purposes because, under either federal or state law (there, Illinois law), the amendment would not "relate back" to the original filing date. Id. at 4-10. The "relation back" doctrine would not apply because of the plaintiff's "protracted and inexplicable delay" — he waited three years after learning he had sued the wrong entity — "in changing defendants." Id. at 6-7. Hence, the new defendant may remove the action to federal court under CAFA and the district court correctly denied the remand motion. Id. , passim .
Posted by Kimberly A. Kralowec in Class Action "Fairness" Act |
RELATED REPORTS
Special Publication 103 (Revised 1999): Mines and Mineral Producers Active in California (1997-
1998); by Department of Conservation, Division of Mines and Geology in cooperation with
Department of Conservation, Office of Mine Reclamation
August 31, 2010 Corps Suspends Mining General Permit
NCP, 40 CFR§300.435(f)(2), states, “A remedy becomes ‘operational and functional’ either one year after construction is complete, or when the remedy is determined concurrently by EPA and the State to be functioning properly and is performing as designed, whichever is earlier.
Mining industry representatives are attacking research by the Environmental Protection Agency (EPA) underpinning the movement to ban the practice of “mountaintop mining,” in which heavy explosives are used to access coal seams in the Appalachian region.
A new study commissioned by the National Mining Association released Thursday represents a more forceful, full-fledged assault by industry on a key EPA study cited by the agency in recent moves to strictly regulate the practice.
At issue is the extent to which rainwater runoff hits debris leftover by mountaintop mining and then pollutes nearby rivers and streams.
Environmentalists and local activists in Appalachia have long sought to ban the practice, focusing on the blight of whole mountaintops removed in the pursuit of coal. But the legal issues before EPA bureaucrats primarily involve water pollution issues related to the practice, which is permitted under federal mining law.
Meanwhile, given the dismal economy, the issue remains especially sensitive for politicians in Appalachia, particularly in West Virginia, where the economic impact of strictly regulating mining practices is more keenly felt by workers in that industry.
The study released Thursday by the National Mining Association (NMA), a powerful trade association representing the mining industry , argues EPA researchers in West Virginia did not prove environmental harm was caused by mountaintop mining and relied on the study of too few organisms.
The EPA study primarily studied the impact of mountaintop mining on a type of mayfly.
The NMA's research is important because it could play a role in possible litigation regarding strict EPA regulations of mountaintop mining. Under the Administrative Procedure Act, the EPA and other federal agencies must prove their regulations are not “arbitrary and capricious.”
A Cu-Zn-Fe-Pt-Ti mine located in secs. 26, 27, 34 & 35, T33N, R6W, MDM, about 4 miles NNW of Keswick and 9½ miles NW of Redding.
Detailed Mineral List:
| Antlerite | |
| Formula: | Cu 3 [(OH) 4 |SO 4 ] |
| Description: | Occurs as coatings on fractures. |
| Reference: | Kinkel, Arthur Rudolph, Jr., Wayne E. Hall & J.P. Albers (1956) Geology and base metal deposits of west Shasta copper-zinc district, Shasta County, California: USGS PP 285, 156 pp.: 89; Murdoch, Joseph & Robert W. Webb (1966), Minerals of California, Centennial Volume (1866-1966): California Division Mines & Geology Bulletin 189: 78; Pemberton, H. Earl (1983), Minerals of California; Van Nostrand Reinholt Press: 298. |
| Chalcocite | |
| Formula: | Cu 2 S |
| Reference: | Aubury, Lewis E. (1902), The copper resources of California: California Mining Bureau Bulletin 23: 65; Laizure, Clyde McK (1921), Redding field division: California Mining Bureau. Report 17: 528; Tucker, W. Burling (1924b), Copper resources of Shasta County: California Mining Bureau. Report 20: 427, 445; Averill, Charles V. (1939), Mineral resources of Shasta County: California Journal of Mines and Geology, California Division of Mines (Report 35): 35: 127; Pemberton, H. Earl (1983), Minerals of California; Van Nostrand Reinholt Press: 98. |
| Chalcopyrite | |
| Formula: | CuFeS 2 |
| Reference: | Diller, J.S. (1903), Copper deposits of the Redding region, California: USGS Bulletin 213: 126; Kinkel, Arthur Rudolph, Jr. & J.P. Albers (1951), Geology of the massive sulphide deposits at Iron Mountain, Shasta County, California: California Division Mines Special Report 14: 9; Murdoch, Joseph & Robert W. Webb (1966), Minerals of California, Centennial Volume (1866-1966): California Division Mines & Geology Bulletin 189: 134, 302. |
| Chalcopyrite var: Blister Copper | |
| Reference: | Logan, Clarence August (1918), Platinum and allied metals in California: California Mining Bureau. Bulletin 85, 120 pp.: 93; Pemberton, H. Earl (1983), Minerals of California; Van Nostrand Reinholt Press: 43. |
| Copiapite ? | |
| Formula: | Fe 2+ Fe 3+ 4 [OH|(SO 4 ) 3 ] 2 · 20H 2 O |
| Description: | Probable occurrence in gossan. |
| Reference: | Kinkel, Arthur Rudolph, Jr., Wayne E. Hall & J.P. Albers (1956) Geology and base metal deposits of west Shasta copper-zinc district, Shasta County, California: USGS PP 285, 156 pp.: 89; Pemberton, H. Earl (1983), Minerals of California; Van Nostrand Reinholt Press: 274. |
| Coquimbite | |
| Formula: | Fe 2-x Al x (SO 4 ) 3 · 9H 2 O, x ~0.5 |
| Reference: | Mineralogical Record 22:381-382 |
| Hematite | |
| Formula: | Fe 2 O 3 |
| Reference: | Hanks, Henry Garber (1884), Fourth report of the State Mineralogist: California Mining Bureau. Report 4, 410 pp.: 229; Murdoch, Joseph & Robert W. Webb (1966), Minerals of California, Centennial Volume (1866-1966): California Division Mines & Geology Bulletin 189: 217. |
| Hematite var: Specularite | |
| Reference: | Kinkel, Arthur Rudolph, Jr. & J.P. Albers (1951), Geology of the massive sulphide deposits at Iron Mountain, Shasta County, California: California Division Mines Special Report 14: 9; Pemberton, H. Earl (1983), Minerals of California; Van Nostrand Reinholt Press: 162. |
| Ilmenite | |
| Formula: | Fe 2+ TiO 3 |
| Habit: | Platy |
| Description: | Occurs as tiny, irregular plates intergrown with magnetite. |
| Reference: | Kinkel, Arthur Rudolph, Jr., Wayne E. Hall & J.P. Albers (1956) Geology and base metal deposits of west Shasta copper-zinc district, Shasta County, California: USGS PP 285, 156 pp.: 86; Pemberton, H. Earl (1983), Minerals of California; Van Nostrand Reinholt Press: 174. |
| Lepidocrocite | |
| Formula: | ?-Fe 3+ O(OH) |
| Reference: | Palache, C., Berman, H. & Frondel, C. (1944), The System of Mineralogy of James Dwight Dana and Edward Salisbury Dana, Yale University 1837-1892, Volume I. John Wiley and Sons, Inc., New York. 7th edition, revised and enlarged, 834pp.: 644; Pemberton, H. Earl (1983), Minerals of California; Van Nostrand Reinholt Press: 163. |
| Limonite | |
| Formula: | FeO(OH) · nH 2 O |
| Colour: | Iridescent |
| Description: | Occurs as stalactites up to 4 inches (10 cm) long and 1 inch (2.5 cm) diameter; also as gossan. |
| Reference: | Lang, Herbert (1899), Copper resources of California: Engineering & Mining Journal: 67: 561; Murdoch, Joseph & Robert W. Webb (1966), Minerals of California, Centennial Volume (1866-1966): California Division Mines & Geology Bulletin 189: 244. |
| Maghemite | |
| Formula: | Fe 2 O 3 |
| Description: | Occurs in gossan. |
| Reference: | Sosman, Robert Browning & E. Posnjak (1925), Ferromagnetic ferric oxide, artificial and natural: Journal of the Washington Academy of Science: 15: 332; Newhouse, Walter Harry & J.P. Glass (1936), Some physical properties of certain iron oxides: Economic Geology: 31: 701; Kinkel, Arthur Rudolph, Jr. & J.P. Albers (1951), Geology of the massive sulphide deposits at Iron Mountain, Shasta County, California: California Division Mines Special Report 14: 9; Kinkel, Arthur Rudolph, Jr., Wayne E. Hall & J.P. Albers (1956) Geology and base metal deposits of west Shasta copper-zinc district, Shasta County, California: USGS PP 285, 156 pp.: 119. |
| Magnetite | |
| Formula: | Fe 2+ Fe 3+ 2 O 4 |
| Reference: | Hanks, Henry Garber (1882a), Second report of the State Mineralogist: California Mining Bureau. Report 2, 226 pp.: 195; Kinkel, Arthur Rudolph, Jr., Wayne E. Hall & J.P. Albers (1956) Geology and base metal deposits of west Shasta copper-zinc district, Shasta County, California: USGS PP 285, 156 pp.: 86; Lydon, Philip Andrew and O'Brien, J.C. (1974) Mines and mineral resources of Shasta County, California. California Division of Mines and Geology County Report 6, 154 pp.: 152; Pemberton, H. Earl (1983), Minerals of California; Van Nostrand Reinholt Press: 152, 162, 174. |
| Melanterite | |
| Formula: | FeSO 4 · 7H 2 O |
| Reference: | Mineralogical Record 22:381-382 |
| Platinum | |
| Formula: | Pt |
| Description: | Occurs in blister copper. |
| Reference: | Logan, Clarence August (1918), Platinum and allied metals in California: California Mining Bureau. Bulletin 85, 120 pp.: 93; Pemberton, H. Earl (1983), Minerals of California; Van Nostrand Reinholt Press: 43. |
| Pyrite | |
| Formula: | FeS 2 |
| Description: | Occurs as massive deposits to several million tons at 90-95% pyrite. |
| Reference: | Kinkel, Arthur Rudolph, Jr. & J.P. Albers (1951), Geology of the massive sulphide deposits at Iron Mountain, Shasta County, California: California Division Mines Special Report 14: 9; Lydon, Philip Andrew and O'Brien, J.C. (1974) Mines and mineral resources of Shasta County, California. California Division of Mines and Geology County Report 6, 154 pp.: 69; Pemberton, H. Earl (1983), Minerals of California; Van Nostrand Reinholt Press: 73. |
| Rhomboclase | |
| Formula: | (H 5 O 2 )Fe 3+ (SO 4 ) 2 · 2H 2 O |
| Reference: | MinRec 22:382; Mineralogical Record 22:381-382 |
| Sphalerite | |
| Formula: | ZnS |
| Reference: | Kinkel, Arthur Rudolph, Jr. & J.P. Albers (1951), Geology of the massive sulphide deposits at Iron Mountain, Shasta County, California: California Division Mines Special Report 14: 9; Murdoch, Joseph & Robert W. Webb (1966), Minerals of California, Centennial Volume (1866-1966): California Division Mines & Geology Bulletin 189: 302. |
| Voltaite | |
| Formula: | K 2 Fe 2+ 5 Fe 3+ 3 Al[SO 4 ] 12 · 18H 2 O |
| Reference: | Mineralogical Record 22:381-382 |
Hanks, Henry Garber (1882a), Second report of the State Mineralogist: California Mining Bureau. Report 2, 226 pp.: 195.
Hanks, Henry Garber (1884), Fourth report of the State Mineralogist: California Mining Bureau. Report 4, 410 pp. (includes catalog of minerals of California pp. 63-410), and miscellaneous observations on mineral products): 229.
Lang, Herbert (1899), Copper resources of California: Engineering & Mining Journal: 67: 561.
Aubury, Lewis E. (1902), The copper resources of California: California Mining Bureau Bulletin 23: 65.
Diller, J.S. (1903), Copper deposits of the Redding region, California: USGS Bulletin 213: 123-132; […(abstract): Geol. Zentralbl., Band 5: 394-395 (1904); …Engineering & Mining Journal: 77: 729 (1904)]: 126.
Logan, Clarence August (1918), Platinum and allied metals in California: California Mining Bureau. Bulletin 85, 120 pp.: 93.
Laizure, Clyde McK (1921), Redding field division: California Mining Bureau. Report 17: 528.
Tucker, W. Burling (1924b), Copper resources of Shasta County: California Mining Bureau. Report 20: 427, 445.
Sosman, Robert Browning & E. Posnjak (1925), Ferromagnetic ferric oxide, artificial and natural: Journal of the Washington Academy of Science: 15: 332.
Newhouse, Walter Harry & J.P. Glass (1936), Some physical properties of certain iron oxides: Economic Geology: 31: 701.
Averill, Charles V. (1939), Mineral resources of Shasta County: California Journal of Mines and Geology, California Division of Mines (Report 35): 35: 127.
Palache, C., Berman, H. & Frondel, C. (1944), The System of Mineralogy of James Dwight Dana and Edward Salisbury Dana, Yale University 1837-1892, Volume I: Elements, Sulfides, Sulfosalts, Oxides. John Wiley and Sons, Inc., New York. 7th edition, revised and enlarged, 834pp.: 644.
Kinkel, Arthur Rudolph, Jr. & J.P. Albers (1951), Geology of the massive sulphide deposits at Iron Mountain, Shasta County, California: California Division Mines Special Report 14: 9.
Kinkel, Arthur Rudolph, Jr., Wayne E. Hall & J.P. Albers (1956) Geology and base metal deposits of west Shasta copper-zinc district, Shasta County, California: USGS PP 285, 156 pp.: 86, 89, 119.
Murdoch, Joseph & Robert W. Webb (1966), Minerals of California, Centennial Volume (1866-1966): California Division Mines & Geology Bulletin 189: 130, 134, 156, 217, 241, 244, 247, 252, 302.
Clark, Wm. B. (1970a) Gold districts of California: California Division Mines & Geology Bulletin 193.
Lydon, Philip Andrew and O'Brien, J.C. (1974) Mines and mineral resources of Shasta County, California. California Division of Mines and Geology County Report 6, 154 pp.: 69, 152.
Pemberton, H. Earl (1983), Minerals of California; Van Nostrand Reinholt Press: 43, 73, 92, 98, 152, 162, 163, 174, 274.
THE FOLLOWING INFORMATION IS FROM THE USGS WEBSITE (FORMERLY THE U.S. BUREAU OF MINES RECORDS)
Producer in Shasta county in California, United States with commodity Iron
Ownership information
| Owner-Operator | Iron Mountain Mine, Ltd. | 1989 |
| Deposit | CALIF. DIV. MINES AND GEOL. SPECIAL PUBL. 103, 1990. |
| Deposit | IRON MINED USED IN CEMENT |
| 23-NOV-1994 | U.S. Bureau of Mines |
| 2010-08-18 13:14:48 |
Mineral Resources > Online Spatial Data > Mineral Resource Data System (MRDS)
Past Producer in Shasta county in California, United States with commodities Copper, Zinc, Iron, Gold, Silver, Platinum
[ View location using Google Earth ]
Sections of this page: [ Geologic ] - [ Economic ] - [ Reference ]
| 10077593 |
| W025295 |
| Site |
| 10189961 |
| -122.52667, 40.67556 (NAD27) |
| 945 |
| 17 MI NORTHWEST OF REDDING |
Political divisions (FIPS codes) Shasta (county) California (state) United States (country) North America (continent) Land (continent) USGS map quadrangles Whiskeytown (quadrangle 1:24,000 scale) Redding (quadrangle 1:100,000 scale) Redding (quadrangle 1:250,000 scale) Hydrologic units (watersheds) Sacramento-Upper Clear (hydrologic unit) Lower Sacramento (hydrologic accounting unit) Sacramento (hydrologic subregion) California (hydrologic region) |
| United States | California | Shasta |
| Mount Diablo | 033N | 006W | 34,35 | California |
| Copper | Primary |
| Zinc | Primary |
| Iron | Secondary |
| Gold | Secondary |
| Silver | Secondary |
| Platinum | Secondary |
| Antlerite | Ore |
| Chalcocite | Ore |
| Chalcopyrite | Ore |
| Covellite | Ore |
| Galena | Ore |
| Greenockite | Ore |
| Hematite | Ore |
| Ilmenite | Ore |
| Magnetite | Ore |
| Malachite | Ore |
| Pyrite | Ore |
| Pyrrhotite | Ore |
| Sphalerite | Ore |
| Sulfur | Ore |
| Calcite | Gangue |
| Quartz | Gangue |
| Mineralization | Early Devonian |
| Local |
| Hydrothermal Pyritization, Silicification |
| 184 |
| 28a |
| Massive sulfide, kuroko |
| 93 |
| Associated | |||
| Sedimentary Rock > Clastic Sedimentary Rock > Shale (Shale) | |||
|
|||
| Host | |||
| Volcanic Rock (Aphanitic) > Felsic Volcanic Rock > Rhyolite (Rhyolite) | |||
| Balaklala Rhyolite | |||
| Balaklala Rhyolite |
| Paleozoic metavolcanic rocks, unit 1 (Eastern Klamath Mountains) |
| Regional | Folds | |
| Local | Major Post-Mineral Faults Are Scott, Camden, And J Faults; The Camden Also Had Premineral Movement. Scott Fault Zone Is 3-5 Ft Wide With Many Anastomosing Slickensides And Dark-Gray To White Gouge. Scott Is A Normal Fault, Dipping 50ne, With 250 Ft Dip-Slip Displacement. Camden Fault Zone Is 50 Ft Wide At 2,600 Ft Level. |
| HORNET |
| LENTICULAR |
| }}} |
| 60.96M |
| 60.96M |
| 381M |
| MATTIE |
| LENTICULAR |
| }}} |
| 53.34M |
| 45.72M |
| 114.3M |
| RICHMOND |
| LENTICULAR |
| }}} |
| 60.96M |
| 121.92M |
| 411.48M |
| BRICK FLAT |
| LENTICULAR |
| }}} |
| 30.48M |
| 121.92M |
| 335.28M |
| Folds, Thick Cover Of Shale, Premineral Faulting May Have Provided Channelways For Mineralizing Fluids |
| Past Producer |
| Metallic |
| Large |
| No |
| 1865 |
| 1897 |
| 1962 |
| 1897-1919, 1925, 1928-1930, 1943-1947 |
| West Shasta Copper-Zinc District |
| Private |
| Owner | Iron Mountain Mines, Inc. | 1985 |
| 1947 | ||||||||||||||||||||||||||||
| 1897-1947 | ||||||||||||||||||||||||||||
| CU | ||||||||||||||||||||||||||||
| Accurate | ||||||||||||||||||||||||||||
| Cp_Grade: ^3.5% Zn, 2% Cu, 1 Oz/Ton Ag, 0.02 Oz/Ton Au | ||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||
| 1947 | ||||||||||||||||||||||||||||
| 1897-1947 | ||||||||||||||||||||||||||||
| CU | ||||||||||||||||||||||||||||
| Accurate | ||||||||||||||||||||||||||||
| Cp_Grade: ^2-5% Zn, 7.5% Cu, 1 Oz/Ton Ag, 0.04 Oz/Ton Au | ||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||
| 1947 | ||||||||||||||||||||||||||||
| 1897-1947 | ||||||||||||||||||||||||||||
| CU | ||||||||||||||||||||||||||||
| Accurate | ||||||||||||||||||||||||||||
| Cp_Grade: ^3.5% Cu, 0.04 Oz/Ton Ag, 0.001 Oz/Ton Au | ||||||||||||||||||||||||||||
|
Past Producer in Shasta county in California, United States with commodities Copper, Gold, Sulfur-Pyrite, Silver, Sulfur, Zinc
[ View location using Google Earth ]
Sections of this page: [ Geologic ] - [ Economic ] - [ Reference ]
Geologic Information Identification information| 10189961 |
| W025295 |
| 0060890368 |
| Site |
| Number 8 , Richmond , Brick Flat , Mattie , Hornet Mine , Confidence , Old Mine |
| 10077593 |
| Main Entrance |
| -122.53030, 40.68810 (NAD27) |
| 1000 |
| 10 (meters) |
Political divisions (FIPS codes) Shasta (county) California (state) United States (country) North America (continent) Land (continent) USGS map quadrangles Whiskeytown (quadrangle 1:24,000 scale) Redding (quadrangle 1:100,000 scale) Redding (quadrangle 1:250,000 scale) Hydrologic units (watersheds) Sacramento-Upper Clear (hydrologic unit) Lower Sacramento (hydrologic accounting unit) Sacramento (hydrologic subregion) California (hydrologic region) |
| United States | California | Shasta |
| Mount Diablo | 033 N | 006 W | 34 | California |
| Copper | Primary |
| Gold | Secondary |
| Sulfur-Pyrite | Tertiary |
| Silver | Secondary |
| Sulfur | Tertiary |
| Zinc | Secondary |
| Calcite | Unknown |
| Chalcopyrite | Unknown |
| Inyoite | Unknown |
| Pyrite | Unknown |
| Quartz | Unknown |
| Silver | Unknown |
| Sphalerite | Unknown |
| Paleozoic metavolcanic rocks, unit 1 (Eastern Klamath Mountains) |
| 30W | ||||||||||||||||||||
| 15M | ||||||||||||||||||||
| 40M | ||||||||||||||||||||
| 125M | ||||||||||||||||||||
| 350M | ||||||||||||||||||||
| 15HA | ||||||||||||||||||||
|
| Underground |
| Past Producer |
| Both metallic and non-metallic |
| Large |
| No |
| 1865 |
| 1879 |
| Shasta District |
| Mixed |
| Owner-Operator | Stauffer Chemical Co. And Iron Mountain Mines 1956-1977 | 100.00 | California | 1978 |
| Deposit | CLAWSON R.F., 1969, SQUAW CR. CU INV., CAL. DEP. WAT. RES. |
| Deposit | MEM. REPORT 29P. |
| Deposit | ERIC J.H., 1948, TABULATION OF CU, DEP. OF CAL., PART 3 IN C |
| Deposit | U IN CAL., CAL. DIV. MINES BULL 144, P197-387. |
| Deposit | KINKLE A.R., HALL W.E., ALBERS J.P., 1956, GEO. AND BASE MET |
| Deposit | AL DEPOSITS OF WEST SHASTA CO-ZN DISTRICT, SHASTA CO. CAL., |
| Deposit | USGS PROF. PAPER 285, 156P. |
| Deposit | MOORE L., 1970, CU RES. AND PRODUCTION OF WEST SHASTA MINING |
| Deposit | DISTRICT, USMB REP 85 |
| Deposit | HILLMAN C.T., SCHUMACHER, GOSLING, 1977, THE WEST SHASTA DIS |
| Deposit | TRICT, SHASTA COUNTY CAL., USBM MAS REPORT, 40P. |
| Deposit | HUTTL J.B., 1946, DIAMOND DRILLING FEATURES MT CUIS MINING, |
| Deposit | ENGINEERING AND MINING JOURNAL, VOL. 147, NO. 9, P64-68. |
| Deposit | KINKLE A.R., ALBEERS J.P., 1951, GEOL. OF THE MASSIVE SULFID |
| Deposit | E DEPOSITS AT IRON MT CAL., CAL. DIV. OF MINES SPECIAL REPOR |
| Deposit | T 14, 19P. |
| Reporter | 27-FEB-1984 | Hillman | U.S. Bureau of Mines |
| 2010-08-18 13:14:48 |
Acid mine drainage biogeochemistry at Iron Mountain, California
The Richmond Mine at Iron Mountain, Shasta County, California, USA provides an excellent opportunity to study the chemical and biological controls on acid mine drainage (AMD) generation in situ , and to identify key factors controlling solution chemistry.
ORGANIC BASE SILICATES
Since silica dissolves above about pH 10.7-11.0, silicates can ber prepared with organic bases. Merrill and Spencer reported the preparation of a number of water-soluble quaternary ammonium silicates by grinding silica gel with a solution of the free base. However, the compounds all appear to have a ratio of 2:1 when expressed by analogy with the alkali metal system.
COMPLEX METAL ION SILICATES
Numerous metal polyamine silicate compositions can be formed with amines including copper, iron, zinc, magnesium, manganese, and molybdenum.
HUMIC ACIDS
Humic acid from decaying vegetation is believed to have a structure related to fulvic acid, which has adjacent hydroxyl groups on an unsaturated six-membered carbon ring and forms chelates with silicon. The soluble chelate with ammonium humate has been used to supply silicon as a nutrient to rice plants, which require silicon for their structure.
Can a healthy diet be sufficient in today's world?
Gone are the days in our so called advanced western society when healthy living meant simply getting the right nutrients from our foods. Nowadays our foods are jam packed with an array of harmful chemicals not to mention mainstream personal care products that we absorb through our skin many of which are carcinogenic. Nearly all of today's diseases stem from what we absorb, our bodies simply cannot deal with this overload of toxins exceeding the body's capacity to detoxify itself. A staggering 1 in 3 people are now falling to cancer. Experts predict that if we do not do anything to rectify this situation now, in the next 30 years cancer will just about affect 100% of us. The UK alone get through every year a staggering quarter of a million tonnes of food chemicals, 50,000 chemicals are released into the environment by industry and 400 million litres of pesticides and herbicides are sprayed onto to foods and pastures. All of this we of course absorbs into our bodies.
SOIL MINERAL DEPLETION:
Studies By Dr Linus Pauling on Soil Mineral Depletion: Studies By Dr Linus Pauling, twice noble prize winner, said "you can trace every sickness, every disease and every ailment to a mineral deficiency". Yet, all over the world, minerals are disappearing from agricultural soils at an alarming rate. In 1992, the official report of the Rio Earth Summit concluded "there is deep concern over continuing major declines in the mineral values in farm and range soils throughout the world". This statement was based on data showing that over the last 100 years, average mineral levels in agricultural soils had fallen worldwide - by 72% in Europe, 76% in Asia and 85% in North America. What has caused this staggering decline?
Most of the blame lies with artificial chemical fertilisers. We now know that plants absorb 70 to 80 different minerals from the soil, while the number returned to it by plants grown with commercial fertilisers can be counted on the fingers of one hand. Every crop that is cut or animal that is sent to market marks a further depletion in the mineral status of the soil on which it was raised. Organic wastes that in former times would have been composted and returned to the land are nowadays mostly consigned to landfill sites or incineration.
There are many other ways in which the move to chemical farming prevents crops from taking up even the sparse amounts of trace minerals left in the soil. Soil contains bacteria, fungi, plant and animal life, in a state of constant interaction and balance. Every one of these organisms needs dozens of different minerals to survive and play its part in the ecosystem. Some bacteria have a vital role in converting soil minerals into chemical forms that plants can use. NPK fertilisers (fertilisers used in modern farming that only contain nitrogen, phosphorous and potassium) gradually change the soil pH towards acidic conditions in which these bacteria can not survive. To combat soil acidification farmers lay lime on the land adding back calcium and magnesium to raise the soil pH, but it also converts manganese and some other trace minerals into chemical forms that plants are unable to absorb.
Pesticides and herbicides also reduce the uptake of trace minerals by plants. Plants have an important relationship with certain fungi that can form networks covering several acres. The fungus obtains carbohydrates from the plant root, at the same time supplying the plant with nutrients it draws from the soil. This gives the plant access to a vastly greater mineral extraction system than is possible by their roots alone. Chemical fungicide sprays destroy these beneficial fungi and so again reduce the ability of plants to absorb soil minerals. Insecticides can also reduce trace mineral uptake by inactivating choline-containing enzymes in plants, essential for the absorption of manganese and other minerals.
The combined effect of soil mineral depletion and the reduced availability of those minerals that remain is that most of the food that we eat is mineral deficient. The table below summarizes the reductions in the average mineral content of 27 vegetables and 17 fruits, between 1940 and 1991. The results of the latest research are expected to show mineral values in continual decline.
Reduction in average mineral content of fruit and vegetables between 1940 and 1991 shown in graph below:
| MINERALS | VEGETABLE | FRUIT |
| Sodium | -49% | -29% |
| Potassium | -16% | -19% |
| Magnesium | -24% | -16% |
| Calcium | -46% | -16% |
| Iron | -27% | -24% |
| Copper | -76% | -20% |
| Zinc | -59% | -27% |
A new study published earlier this year shows that, as might be expected, mineral levels in animal products reflect the picture in plant foods. Comparing levels measured in 2002 with those present in 1940, the iron content of milk was found to be 62% less, calcium and magnesium in parmesan cheese had each fallen by 70% and copper in dairy produce had plummeted by a remarkable 90%.
In the UK and Ireland government are putting resources into improving health by encouraging people to eat a healthy diet, including 5 portions of fruit and vegetables per day, but you scarcely hear a word about the problem of soil mineral depletion. Food seems to be considered as something quite separate from its source and means of production. But this is not rocket science - the foundation of human health is the quality of the food we eat, which relies ultimately on the vitality of the soil on which it is raised.
What happens to us if we are mineral deficient? Minerals are an essential part of our natural diet and a lack of them may in part account for our increasing susceptibility to diseases - such as heart disease (magnesium), cancer (selenium), diabetes (chromium) and mental illnesses (zinc). Zinc is perhaps the most commonly deficient mineral and the most critical mineral for metal health. The average intake is around 7.5mg, which is half the RDA of 15mg. Every one of us should take care to get the minerals we need, for the good of our health.
A few Signs and a few mild to extreme Symptoms of Mineral deficiency :
Potassium deficiency: Dry skin, poor reflexes, apathy, weakness, confusion, and extreme thirst.
Magnesium deficiency: Apathy, weakness, cramps and muscle tremors (tetany) which leads to convulsions, insomnia, headaches, high blood pressure, depression, constipation, hyperactivity, Irregular heart rhythms.
Calcium deficiency: Muscle weakness or cramps, Brittle bones, rickets, osteoporosis.
Iron deficiency: Shortness of breathe, Fatigue, Iron deficiency anaemia, reduced resistance to infections, poor appetite.
Zinc deficiency: Hair loss, skin changes, diarrhoea, wasting of body tissue, loss of taste and smell, thin fingernails with white spots, acne, fatigue, memory loss, depression, schizophrenia, anxiety, poor immunity, dandruff, psoriasis, hyperactivity,
What functions do mineral have in our bodies?
Minerals are needed for the proper formation of blood and bone, the maintenance of healthy nerve function, heartbeat regulation, reproduction and foetal development. They are essential to the process of growth, healing and energy release. And it is not just the presence of the mineral in the body that is important - they must be in the correct ratio to each other. The level of each mineral has an effect, directly or indirectly, on every other, so if one is out of kilter the whole system is affected. Calcium, magnesium and phosphorous help make up the bones and teeth. Nerve signals, vital for the brain and muscles, depend on calcium, magnesium, sodium and potassium. Oxygen is carried in the blood by an iron compound also essential for oxygenation of and carbon dioxide extraction from the body. Chromium helps control blood sugar levels. Zinc is vital for body repairs, renewal and development. Selenium and zinc help boost the immune system. Brain function depends on adequate magnesium, manganese, zinc and other essential minerals. These are a few out of a thousand key roles minerals play our health.
What can you do to ensure that you are getting the minerals that you need in your diet?
Eat Organic: The first thing you can do is to eat organic. Organic foods have a higher mineral content than those grown with chemicals, plus by eating organic you are supporting the environment.
Take supplements: It is very important nowadays to supplement your diet with good quality supplements that are easily absorbed by your body. There are a lot of supplements out there that are a waste of money because they are manufactured with synthetic ingredients. These should be avoided as your body will not absorb them. We at purenewyou.com offer a complete range of mineral and vitamin supplements. For information go to our section: Vitamins and Minerals.
Campaign: Get in touch with the Soil Association or Food Commission to get further information to raise awareness to the problem of nutrient depletion or write to your local TD. or MP.
The Function of Soil Minerals and Trace Elements in Soil, Plant, Animal, and Human Nutrition and Health
Copper and Zinc
Copper (Cu) is element number 29 on the Mendeleeyev chart, the Periodic Table of the Elements.
The other elements in Copper's specific group (group 1B, directly below it on the table) are Silver (Ag) and Gold (Au), which puts it in some racy company.
Copper is the key to elasticity in the plant. It is an important constituent of many proteins like ascorbic acid oxidase, cytochrome oxidase, diamine oxidase, and polyphenol oxidase. Copper is an important nutrient for many microbes, such as Aspergillis niger. It controls molds and often alleviates perceived zinc deficiencies. Copper interacts with iron and manganese. Andersen Science In Agriculture p236
Bordeaux mixture and Burgundy mixture are two famous sprays used to control fungus in vineyards. Developed in their eponymous provinces of France, Bordeaux mix is copper sulfate, mason's lime (calcium hydroxide), and water; Burgundy mix is copper sulfate, sodium carbonate (washing soda), and water. The full recipes and instructions for using Bordeaux and Burgundy mixtures are given below in the section borrowed from the Copper Development Association's web site.
The story goes that Bordeaux mixture was discovered by accident. During a wet fall in the province of Bordeaux in the 1880s the grapes were being severely attacked by downy mildew. Along a road that ran past one vineyard, the owners had sprayed a mixture of copper and lime on the vines, which turned the grapes a blue green color and was meant to dissuade the passersby from picking the grapes. The French scientist Millardet, while walking along, noticed that those vines were not being attacked by the fungus, and Bordeaux mixture was born.
As a part of of Bordeaux mixture in grape arbors, it functions as a nutrient and not as an insecticide as is often believed. Walters, Eco-Farm p136 [Copper's use in Bordeaux mixture is actually as a fungicide, not an insecticide, but we'll allow Charles Walters the occasional typo. This observation should actually be credited to William Albrecht, who theorized that the copper in the mixture was stimulating the plant's immune system.]
Copper, vitally important to root metabolism, helps form compounds and proteins, amino acids and a host of organic compounds. It acts as a catalyst or part of the enzyme systems. It helps produce dry matter through stimulation of growth, prevents development of chlorosis, rosetting and dieback. Walters Eco-Farm p 197
The role of organic matter in Cu chemistry is also indicated by analysis of the soil solution. More than 99% of the Cu in the soil solution is complexed by organic matter. This complexing is of great importance in maintaining adequate Cu in solution for plant use. Foth and Ellis Soil Fertility p141
Because Cu is not translocated in the plant, the deficiency symptoms appear on the new growth. In small grains and corn the leaves appear olive or yellowish green in color, and often the leaves fail to unroll as they emerge. Often the leaf tips will appear as though the plants have been frost-damaged, and there will be some flags. A flag is is a wilted or dead leaf or a branch with such leaves on an otherwise healthy appearing plant. Soil Fertility p157
Sul-po-mag, [also known as K-Mag and Langbeinite] applied between July 15 and September 15 up to 200 lbs per acre, seems to help in copper availability. Science in Agriculture p236 [K-Mag is available from SoilMinerals.com HERE ]
Copper in Human and Animal Health
An excess of copper results in degeneration of the liver. It causes blood in urine and poor utilization of nitrogen.
A deficiency of copper is created by excess of molybdenum and cobalt. It produces anemia due to poor iron utilization. It depresses growth. Other symptoms...depigmentation of hair and abnormal hair growth; impaired reproductive performance and heat failure; scouring, fragile bones; retained placenta and difficulty in calving; and muscular incoordination in young lambs, and stringy wool. Walters Eco-Farm p367
...a largely vegetarian diet lacks the fat-soluble catalysts needed for mineral absorption. Furthermore, phytates in grains block absorption of calcium, iron, zinc, copper and magnesium. Unless grains are properly prepared to neutralize phytates, the body may be unable to assimilate these minerals. Fallon and Enig Nourishing Traditions p27
Ragweed, for example, is generally indicative of a phosphate/potash imbalance, but, more specifically, it indicates a copper problem. Copper is important in the use of manganese and iron, as well as in many metabolic reactions, Copper also seems to be important in controlling fungal disorders. Many people have allergic reactions to ragweed pollen. This reaction seems to be related to a copper deficiency in the mucous membranes. Andersen Science In Agriculture P.192
Copper: Needed for the formation of bone, hemoglobin and red blood cells, copper also promotes healthy nerves, a healthy immune system and collagen formation. Copper works in balance with zinc and vitamin C. Along with manganese, magnesium and iodine, copper plays an important role in memory and brain function. Nuts, molasses and oats contain copper but liver is the best and most easily assimilated source. Copper deficiency is widespread in America. Animal experiments indicate that copper deficiency combined with high fructose consumption has particularly deleterious effects on infants and growing children. Nourishing Traditions p43
Many enzymes incorporate a single molecule of a trace mineral-- such as manganese, copper, iron or zinc-- without which the enzyme cannot function. Nourishing Traditions p46
Graeme Sait: Can you revert grey hair with copper supplements? I've had grey hair since I was twenty-five.
Joel Wallach: It's definitely a Copper deficiency, and you could revert to your former hair color if you addressed the problem. I see it every day with my clients. It can be quite humorous when a seventy year old grey-haired man returns to his former redheaded glory. Sait, Nutrition Rules p297
In Australia it was discovered that black sheep grazing on copper-deficient pastures turned gray.
In humans copper is stored in the liver. In cases of fever and infection, the level of iron in the bloodstream drops and the blood copper level rises as the copper reserves in the liver are mobilized to aid the immune system in fighting off invaders. This tidbit is from Andre Voison's classic Soil, Grass, and Cancer , in which the French bio-chemist and veterinarian devoted several chapters to the role of copper in human and animal health.
In the 1930s Dr. Weston A. Price investigated the traditional diets of isolated peoples around the world. High in the Andes mountains of South America he discovered the native peoples relied on dried fish eggs and seaweed brought from the ocean to supply trace minerals and other factors lacking in their diet. He writes "The kelp provided a very rich source of iodine as well as copper, which is very important to them in the utilization of iron for building an exceptionally efficient quality of blood for carrying oxygen liberally at those high altitudes. W. A. Price, Nutrition and Physical Degeneration p 265
Copper functions in the body as an enzyme co-factor, formation of hemoglobin and red blood cells, protein metabolism, synthesis of phospholipids, vitamin C oxidation, production of elastin, and formation of RNA. Signs of possible deficiency are white hair, liver cirrhosis, allergies, parasites, hernia, anemia, hyper/hypo thyroidism, arthritis, ruptured disc and iron storage disease. Walters, Minerals for the Genetic Code p122.
Zinc and copper have a seesaw relationship in the body, competing with each other for absorption in the gut. Both zinc deficiency and copper toxicity have increased since the switch from zinc (galvanized) to copper water pipes. We can avoid this problem by not drinking tap water. Haas, Staying Healthy with Nutrition p191
The following wealth of information is from the Copper Development Association's web site at CDA Web Site
| Uses of Copper Compounds: Copper Sulphate's Role in Agriculture |
Copper sulphate has many agricultural uses but the following are the more important ones:
Preparation of Bordeaux and Burgundy Mixtures on the Farm Because of their importance to farmers, instructions concerning the dissolving of copper sulphate and the preparation of both Bordeaux and Burgundy mixtures have been included in the text. Dissolving Copper Sulphate Iron or galvanized vessels must not be used for the preparation of copper sulphate solutions. Plastic vessels, now freely available, are light and very convenient. To make a strong solution, hang a jute sack of copper sulphate so that the bottom of it dips a few inches only in the water. The copper sulphate will dissolve overnight. Copper sulphate dissolves in cold water to the extent of about 3 kg per 10 litres. If more than this is placed in the sack described above, then a saturated solution will be obtained and it may be used without serious error on the basis that it contains 3 kg copper sulphate per 10 litres. Preparation of Bordeaux Mixture Bordeaux mixture is prepared in various strengths from copper sulphate, hydrated lime (calcium hydroxide) and water. The conventional method of describing its composition is to give the weight of copper sulphate, the weight of hydrated lime and the volume of water in that order. The percentage of the weight of copper sulphate to the weight of water employed determines the concentration of the Bordeaux mixture. Thus a 1% Bordeaux mixture, which is the normal, would have the formula 1 :1:100the first 1 representing 1 kg copper sulphate, the second representing 1 kg hydrated lime, and the 100 representing 100 litres (100 kg) water. As copper sulphate contains 25% copper metal, the copper content of a 1% Bordeaux mixture would be 0-25 % copper. The quantity of lime used can be reduced considerably. Actually 1 kg copper sulphate requires only 0.225 kg of chemically pure hydrated lime to precipitate all the copper. Good proprietary brands of hydrated lime are now freely available but, as even these deteriorate on storage, it is safest not to exceed a ratio of 2:1. i.e. a 1:0.5:100 mixture. In preparing Bordeaux mixture, the copper sulphate is dissolved in half the required amount of water in a wooden or plastic vessel. The hydrated lime is mixed with the balance of the water in another vessel. The two "solutions" are then poured together through a strainer into a third vessel or spray tank. [Note from soilminerals.com: It appears from the above that one doesn't want to mix the lime solution with the copper solution until one is ready to spray, as the lime precipitates the copper. Well, that makes sense; copper sulfate is acid, calcium hydroxide is alkaline, mix them together and what happens? You probably get calcium sulfate (gypsum) and copper oxide. Copper oxide is not water soluble.] Preparation of a 1% Burgundy Mixture Dissolve separately 1 kg copper sulphate in 50 litres water and 125 kg washing soda (or 0.475 kg soda ash) in 50 litres water and slowly add the soda solution to the copper sulphate solution with stirring. Control of fungus diseases Bordeaux and Burgundy mixtures have been found effective in controlling a whole host of fungus diseases of plants. Normally a 0.5 % to 1 % Bordeaux or Burgundy mixture applied at 2 to 3 week intervals suffices to control most copper-susceptible fungi. Generally once the fungus spores have alighted on the host plant and penetrated the tissues it is difficult to control them. The principle of control must in most cases depend on protection, ie preventing the fungus spores from entering the host tissues. Copper fungicides are noted for their tenacity and for this reason are much to be preferred in areas of high rainfall. The simplest method of control is to apply a protective coating of Bordeaux or Burgundy mixture (or other copper fungicide) to the susceptible parts of the plant, so that spores alighting on them come in contact with the protective film of copper and are killed instantly. It is thus important to remember that the first spraying must ideally be made just before the disease is expected and continued at intervals throughout the susceptible period. For this reason it is important to take advantage of the early warning schemes which are in operation to ensure greater accuracy of the timing of the first spraying. It must also be remembered that fungi are plants and that control measures that will kill them may not always leave the host plant unaffected. The use of too concentrated a fungicide mixture must therefore be guarded against, particularly for the early sprays. Copper fungicides have been reported effective against numerous plant diseases. A list, by no means exhaustive, of some 300 diseases that have been found amenable to control by copper fungicides. [ note: the list is at the CDA web site ] Correction of Copper Deficiency in Soils Where copper deficiency has been confirmed by soil analysis or field diagnosis, whether in plants or animals, it can be corrected very simply either by applying 50 kg copper sulphate per hectare in the form of a fertiliser before sowing or by spraying the foliage of the young cereal plants, when they are about 150 mm high, with 750 grams copper sulphate (dissolved in from 400 to 2,000 litres water) per hectare. The soil application has generally given the better results and has the advantage that it may have a residual effect for more than ten years. The foliar application has to be given annually to each crop. An alternative is to add a copper containing slag (normally about 1% to 2 % copper) at a rate of a tonne to the hectare. [Note from soilminerals.com: 50kg per hectare of copper sulfate works out to about 5-6 ppm of elemental copper] Correction of Copper Deficiency in Animals A method of correcting copper deficiency in livestock is to treat the soil on which animals graze. For example, in Australia and New Zealand swayback in lambs is being prevented by top dressing copper deficient pastures with 5 to 10 kg copper sulphate per hectare some time before lambing begins. Other methods include drenching periodically with a copper sulphate solution; incorporating copper sulphate in salt and other animal licks; or by what is probably the most general method, incorporating copper sulphate along with other minerals and vitamins in the form of carefully blended supplements in the feeding stuffs. Stimulation of Growth for Fattening Pigs and Broiler Chickens The inclusion of up to as much as 0.1% copper sulphate in the diet of bacon and pork pigs and broiler chickens stimulates appetite and produces increased growth rate with a marked improvement in feed conversion. A molluscicide for the destruction of slugs and snails, particularly the snail host of the liver fluke. All likely habitats of the liver fluke snail should be treated with copper sulphate at the rate of 25 kg to the hectare at least twice a year in June and August (northern hemisphere) or December and February (southern hemisphere). End of info from CDA web site |
SoilMinerals.com carries Copper in the form of Copper Sulfate , containing 25% Cu. It is highly water soluble for use as a soil amendment, a foliar spray, a fertilizer ingredient, or for making Bordeaux or Burgundy mixtures as described above.
Zinc First we hear from Arden Andersen, who thinks zinc is overused in agriculture:
Zinc is an essential component of many enzymes in the dehydrogenase, proteinase, and peptidase groups. It is a minor catalyst for sul-po-mag and copper and is correlated closely with copper and active nutrient systems. Zinc helps to make acetic acid in the root to prevent rotting; it is used to control blight and allows dead twigs on trees to shed off. Perceived zinc deficiency is often only symptomatic. Research has indicated that known soil-zinc deficiencies result in symptoms of plant-zinc deficiency only about 50% of the time. Zinc is much overused and promotes the growth of many weed species. Andersen Science in Agriculture p238
And next from Gary Zimmer, who appears to be a big fan of Zinc, particularly for corn/maize:
Zinc-- contributes to test weight, increased corn ear size, promotes corn silking, hastens maturity, chlorophyll formation, enzyme functions, regulates plant growth. Zimmer The Biological Farmer p109 [Zimmer also writes that zinc is "essential for corn starters" and recommends 5lbs/acre of 35% zinc to supply a corn crop and build soil levels.]
And a few more experts weigh in on zinc:
Charles Walters says that zinc "may act in the formation of chlorophyll.[....]It certainly stimulates plant growth and prevents the occurrence of mottled leaf in citrus, white bud in corn, and other disorders." He further states that "Plants do require it in the 3-100ppm range." and regarding animal health that "An excess of zinc means decreased copper availability and interference with utilization of copper and iron, bringing about anemia. A zinc excess also shows up as bald patches and skin disorders (rough skin), a deficiency is created by excess of calcium. Zinc is absolutely essential for production of sperm. It also increases the need for vitamin A." Walters Eco-Farm p366.
Now a word from the more mainstream guys: " ...zinc uptake by plants declines as pH increases.[....] High levels of phosphorus in soils has been known to intensify zinc deficiency in a number of crops. The exact cause of the zinc-phosphorus antagonism has been difficult to determine....the zinc-phosphorus antagonism occurs on calcareous [high calcium] soils and may be related to iron availability." Foth and Ellis Soil Fertility p142 They also show an increase from 4.2 to 19.9 bushels per acre of pea beans on one field after the addition of 25lbs/acre of zinc, quite the boost.
Here's a fun one from an interview with Klaas Martens in Graeme Sait's Nutrition rules. "...we need to lift our zinc levels as our phosphorus levels increase. We always need to use zinc with our starter fertilizers. At one time, our consultant suggested that we had a zinc deficiency, simply by driving past one of our fields. He didn't need a soil test, because the presence of milkweed was an indicator of a zinc shortage. We've actually seen the milkweed disappear as we have slowly corrected the zinc."
The area of South-central Washington state known as the Palouse is one of the world's great wheat growing regions. When it was first broken to the plow the production was tremendous, but by the 1920s it had fallen dramatically. The problem turned out to be zinc insufficiency. Zinc is easily water soluble, and this fact combined with low initial reserves of zinc in many soils has made zinc deficiency common. It was also one of the earliest trace mineral deficiencies discovered, and its sometimes dramatic effect on crop yields has led to some overuse; one book in front of me lists the results from application of 122lbs/acre of zinc! The results were quite disappointing, understandably.
Both zinc and copper are well known for their need in animal nutrition, and most commercial livestock producers supplement animal feed with these minerals. For that reason, manures from commercial livestock operations are frequently very good sources of zinc and copper (and sometimes boron). The problem with these manure sources of minerals is that one doesn't know how much they are getting, or what else they may be getting that they don't want. See the article Minerals and Manure .
Moving on to the human nutrition aspect, the adult human body contains about 2400 milligrams of zinc. Zinc is most concentrated in the male prostate and semen. The next most concentrated tissues are the retina of the eye, the heart, spleen, lungs, brain, and adrenal glands. Because of zinc's role in RNA and DNA synthesis and in the formation of many enzymes, zinc deficiency leads to slow healing of wounds. In some hospital tests zinc supplements led to surgical incisions healing in one-half the "normal" time. Zinc is important to normal insulin activity, the functions of taste and smell, normal immune function, protein digestion, and the formation of bones and teeth as it is a co-factor of alkaline phosphatase. Fallon and Enig, in Nourishing Traditions , call zinc the "intelligence mineral". It is generally more easily absorbed from animal products than from plants and although grains may contain significant zinc, that zinc may be bound up by the phytates in the grain's outer portion. Many traditional peoples soaked and sprouted seeds and grains before cooking them, a practice that reduces or eliminates this mineral-binding by phytates. Fallon and Enig add "Even a minor zinc deficiency in pregnant animals results in offspring with deformities, such as club feet, cleft palates, domed skulls and fused and missing ribs. In humans, zinc deficiency can cause learning disabilities and mental retardation."
Some of the other human nutritional and health problems associated with zinc deficiency are acne, boils, psoriasis, gastric ulcers (zinc is needed to form digestive acids), cataracts, hypertension, infertility, loss of or poor functioning of the senses of hearing, taste, and smell, weak muscles, and fatigue.
The brilliant British researcher Mark Purdey, in his groundbreaking work with mad cow disease and chronic wasting disease, found in a worldwide survey that both mad cow and CWD were strongly associated with soils that had very low levels of zinc and copper, combined with high levels of manganese and sometimes high levels of strontium and silver. In those conditions copper in the melanin granules, which are transmitters of outside information to the brain, may be replaced by manganese with disastrous results. In other words, neither mad cow disease nor chronic wasting disease are caused by infectious microbes, but are the result of a mineral imbalance. For more info on Mark Purdey's important work see his web site www.madcowpurdey.com .
SoilMinerals.com carries Zinc in the form of Zinc sulfate , a purified soil amendment containing 35.5% Zinc and 17% Sulfur. It is water soluble and is easily used for soil applications, fertilizer mixes, or foliar feeding.
Iron and Manganese
Iron Iron is second only to aluminum in the list of abundant metals. It makes up about 5% of the earth's crust, so it is rarely absent from soils, although it may not be present in an available form.
For garden soil we like to see 50-200ppm of iron on a standard soil test. Above 250 ppm usually indicates something out of balance.
What does iron do in the plant? Paraphrasing Arden Andersen, "Iron draws energy to the leaf by absorbing heat from the sun; it makes the leaf darker, thus absorbing more energy. It will increase the waxy sheen of the crop. Iron is necessary for the maintenance and synthesis of chlorophyll and RNA metabolism in the chloroplasts. It increases the thickness of the leaf, [which] increases nutrient flow geometrically, resulting in a production increase geometrically." Science in Agriculture p236
Iron is needed by nitrogen fixing bacteria.
So iron is a good thing, in most cases. Below we have a couple of different views on just how good it is and how much we want:
Both iron and manganese become less available at pH 7 and above and in the absence of organic matter and water. These conditions are found in some arid parts of the western United States. High calcium soils also tend to have low available iron, particularly if they are also low in organic matter. In a calcareous soil, most of the potentially available iron is tightly bound to organic matter. Some plant roots have been shown to have the ability to obtain iron from these sources by chemically reducing ferric iron (Fe+++) to ferrous iron (Fe++). High phosphorus soils may also have low available iron, as any free iron will chemically bind to from iron phosphate....Correcting an iron deficiency may be difficult because the problem is not a lack of iron in the soil, but that it is chemically bound. Lowering the pH, if practical, is the surest method. Foliar iron sprays are also effective. Foth and Ellis Soil Fertility pp146-147
Here's an excerpt from an interview with Gary Zimmer "In our dairy work we are looking at phosphorus as a key element. We want phosphate uptake for sugars and energy and digestibility and plant health. If I have high iron in my soils, usually from over-tillage, excessive use of caustic materials or too much nitrogen use, I'm not happy. On a dairy farm, I scream and holler if they buy a single pound of commercial nitrogen. If they buy nitrogen, I want to know why. They had better use their manures and alfalfa and rotation, because I don't want iron buildups. Iron binds with phosphate within the plant . Many people who don't feed cattle don't notice this difference. You see, the phosphorus may be in the plant, but when you bind it to iron, it becomes unavailable. Iron has a triple-positive charge and phosphorus has a triple-negative charge, so they will bond very easily. If your feed is high in iron, then the cow is starved for phosphorus. We are fanatical about trying to get our iron down, just so we have better phosphate availability . In high iron soils I don't think our soil tests give an accurate idea of phosphate availability to the plant." [emphasis added] Graeme Sait Nutrition Rules pp187-188. Gary Zimmer works mostly with neutral or alkaline pH soils in the upper Midwestern US, and we don't know offhand what he considers high iron.
The info above brings up some interesting questions about iron supplements in general, don't you think? I wonder what connection there might be between the high iron intake recommended for women and high incidences of osteoporosis? Fallon and Enig have this to say about one type of iron supplementation "Recently, researchers have warned against inorganic iron used to supplement white flour. In this form, iron cannot be utilized by the body and its buildup in the blood and tissues is essentially a buildup of toxins. Elevated levels or inorganic iron have been linked to heart disease and cancer." Nourishing Traditions p44.
Charles Walters has this to say about signs of iron deficiency in plants "When iron deficiency is serious, the entire leaf will turn yellow, leaving only the veins to stand out like road maps....Chlorosis (white leaves that should be green) is possible even in the presence of iron. Lime can complex iron, and yet in the human being calcium and copper must be present for iron to function properly. In order to free iron, the farmer must complex calcium in this case, and this means using either iron sulfates or iron chelates, or substituting a proper foliar blend." Eco-Farm p196.
At soil minerals.com we have seldom seen a soil test that showed a lack of iron. and as we usually are working with gardens and fields of a few acres and smaller, our approach is to bring the pH down below 7 which will make iron (as well as the other cations) more easily available. The alternative, if one cannot lower the pH with minerals because of size, expense, highly calcareous soils, or other constraints, is to increase the biological activity in the soil. As noted above in the excerpt from Foth and Ellis' Soil Fertility, in a calcareous soil most of the iron is tied up with organic matter. Increasing the organic matter content of such soils will provide more holding points for iron, and increasing the biological activity, through the addition or seeding of beneficial bacteria and fungi, should make more Fe available to the plants.
SoilMinerals.com carries Iron in the form of Iron sulfate , a purified soil amendment containing 30% Iron and 17% Sulfur . It is water soluble and is easily used for soil applications, fertilizer mixes, or foliar feeding.
Manganese is synergistic with iron; they work together in biology in ways that are not well understood, but we do know that they need each other. Good steel must have some manganese in it to impart toughness, and that manganese in the steel also absorbs oxygen during the steel making process. Perhaps this is a clue to the biological relationships of Mn and Fe, in that the manganese may slow the oxidation rate of iron in living things.
We at SoilMinerals.com like to see about 1 part manganese to 2 parts iron on soil test results, up to about 50 ppm manganese. Levels above 50 ppm may be too high, particularly if the soil is deficient in copper and zinc. In wet, acid soils below pH 5 or so that naturally contain high amounts of manganese, soluble manganese can reach levels that are toxic to plant roots. The remedy for these conditions would be to drain the soil better, or, if the crop requires a wet, acid soil (e.g. cranberries), the remedy would be to increase water flow through the soil, as more water will bring more oxygen, which will precipitate the excess manganese in an insoluble state.
Arden Andersen calls manganese "the element of life", and says that manganese "brings the electrical charge into the seed, creating the magnetic force to draw the other elements into the seed." (Science in Agriculture p236.) In Eco-Farm , Walters credits manganese with with aiding the oxidase enzyme in carrying oxygen, and entering into the oxidation and reduction reactions needed in carbohydrate metabolism and in seed formation; more clues that manganese has a strong connection with oxygen. Regarding manganese in animal nutrition, Walters tells us that an excess of manganese increases the need for iron, while a manganese deficiency results in leg deformities in calves, eggs not formed correctly, degeneration of testicles, offspring born dead, and delayed heat periods, and also says that an excess of calcium and phosphorus may lead to a manganese deficiency. (Eco-Farm p366)
We definitely know that manganese is necessary for the development of viable seeds. The most common and obvious sign of manganese deficiency is in the almond family. Peaches, nectarines and apricots with split-open pits containing a shriveled seed are the prime example. Dan Skow has some interesting insights on this from the Carey Reams school of thought: "If there is no Manganese in the seed, it will swell up and rot [rather than sprouting]. Manganese has a high atomic weight, 54.9380, meaning it has more power than nutrients in the surrounding soil. [Manganese] puts into play the magnetism necessary to draw nutrients into the seed to feed it and its emerging root system. When there is a shortfall for manganese, the entire fertility program has to be adjusted to create enough energy to pull more manganese." ( Mainline Farming for Century 21p59.) Skow recommends a foliar spray of manganese mixed with phosphoric acid to easily correct manganese deficiency problems, and tells us that manganese is what is needed to ensure regular pecan crops with filled hulls.
Moving on to human nutrition, Elson Haas tells us that manganese is an essential part of the superoxide dismutase enzyme found in the mitochondria, the energy factories in the cells. Manganese also activates the enzymes necessary for the body to use biotin, thiamine (B 1 ), vitamin C, and choline. (Staying Healthy with Nutrition p207). Sally Fallon writes that manganese is "..needed for healthy nerves, a healthy immune system and blood sugar regulation....also plays a part in the formation of mother's milk and in the growth of healthy bones. Deficiency may lead to trembling hands, seizures, and lack of coordination. Excessive milk consumption may cause manganese deficiency as calcium can interfere with manganese absorption...phosphorus antagonizes manganese as well. (Nourishing Traditions p44).
Manganese can also be quite toxic. It has been (likely still is) used as a flux or anti-oxidant coating on arc-welding rods, and some long-time welders have ended up with chronic and acute symptoms much like those listed above for manganese deficiency: trembling hands and other indications that appear identical to Parkinson's disease.
Manganese, we see,as well as being necessary, can be toxic, especially in diets or soils that are deficient in copper, zinc, and perhaps iron. The paragraph below was already posted above under copper and zinc, but bears repeating:
The brilliant British researcher Mark Purdey, in his groundbreaking work with mad cow disease and chronic wasting disease, found in a worldwide survey that both mad cow and CWD were strongly associated with soils that had very low levels of zinc and copper, combined with high levels of manganese and sometimes high levels of strontium and silver. In those conditions copper in the melanin granules, which are transmitters of outside information to the brain, may be replaced by manganese with disastrous results. In other words, neither mad cow disease nor chronic wasting disease are caused by infectious microbes, but are the result of a mineral imbalance. For more info on Mark Purdey's important work see his website www.madcowpurdey.com .
SoilMinerals.com carries Manganese in the form of Manganese sulfate , a purified soil amendment containing 32% Manganese and 19% Sulfur. It is water soluble and is easily used for soil applications, fertilizer mixes, or foliar feeding.
BORON
Boron is one of the rarest elements, and one of the most mysterious. It is absolutely essential for calcium metabolism, but no one seems to know its method of action. An often heard phrase in the eco-agriculture field is "Calcium is the truck, but boron is the driver". This refers to the concept that calcium is the transporter of nutrients into and out of the cells, but it can't do its job unless boron is present.
There are apparently only two commercially viable boron deposits in the world, one in Turkey and one in the Mojave desert of Southern California. Boron is easily leached out of soils, so higher rainfall areas are often deficient. In front of me is a map of the USA showing boron deficiency areas. Essentially it shows everything east of the Mississippi River as boron deficient, as well as the Pacific NW as far south as the San Francisco Bay and as far east as central Montana.
Here's Charles Walters on boron: "Plants must have boron, again in the trace range. Texts quote 2 to 75 parts per million as being essential, but note that plants vary in their required amounts according to species. Boron is quite lethal to seeds when used in the salt form." ( Eco-Farm p136). 2 to 75 parts per million is a huge range. At soilminerals.com we would be very concerned to see available boron above 5ppm. Our general rule is 1 part of boron to 1000 parts calcium.
More on boron from Walters' Eco-Farm : "Boron is required so that calcium can perform its metabolic chore. It is essential in several other metabolic processes...it prevents such abnormalities as cracked stem in celery, internal cork in apples, black heart in beets and turnips, yellowing of alfalfa leaves. When boron deficiency is a problem, death of the terminal bud is a common symptom. Lateral buds continue to produce side shoots, but terminal buds on these side shoots fade away. Rebranching may occur, but the multi-branched plant will take on the appearance of a rosette.
In cauliflower, heads fail to mature properly and remain small. Reddish-brown areas become evident. Terminal buds take on a light green color.....root crops are affected by brown heart, dark spots, or by splintering and cracking at the middle in....spuds [potatoes], sweet potatoes, radishes, carrots.
Boron is required for translocation of sugar, and this means boron deficiency can be spotted as a sugar deficiency. Important as it is, a 100 bushel crop of corn requires only 4 ounces of boron.......a ton of alfalfa requires only a single ounce...boron regulates flowering and fruiting, cell division, salt absorption, hormone movement and pollen germination, carbohydrate metabolism, water use, and nitrogen assimilation.
In most soils boron is [found] as highly insoluble tourmaline, the supply being somewhere between 20 and 200 pounds per acre. It takes life in the soil to draw on this bank account, and the Creator has supplied this life in the form of microorganism species which simply have to have boron to live. By using the nutrient themselves and then contributing their bodies to the soil's fertility load, microorganisms change boron into an organic form.
When dry weather hits, microorganisms in soil without tilth and structure go dormant. This means the boron supply is cut off. Generally speaking there is more boron in the subsoil...and roots...dig deeper...for both moisture and for this very essential nutrient.
Too much boron will...restrict growth, cause plants to exhibit that sickly pale green color sometimes mistaken for nitrogen deficiency, preside over root deterioration and poor yield. In short, either a shortage or marked imbalance of boron will set up a plant for insect and fungal attack."
Important stuff, boron. It also has several more esoteric uses and connections, such as remediation of radiation poisoning. According to another Charles Walters book, Minerals for the Genetic Code (based on the work of Dr. Richard Olree), boron controls all the +3 charges in the human body, and it is easily displaced by aluminum, losing three boron molecules to every one aluminum molecule. Furthermore "Boron has the ability to absorb radiation and release it without changing the neutron. The heart is the most active part of the body for which reason boron defends the heart. The story has been told that Soviet truck drivers were offered bonuses to deliver boron to the Chernobyl site, this with the knowledge that their trip would be fatal, but families would be paid. None realized that, fortified with boron [themselves], they could have made their decision with impunity. Boron stopped the "China Syndrome" from occurring in Russia." [ed. note: as is often the case, Walters is being a bit obscure here. He appears to be stating that large quantities of boron were dumped on the nuclear pile at Chernobyl to stop the out-of-control nuclear reaction, and that if the truck drivers had swallowed some of that boron they would have been protected from radiation exposure.]
Continuing the quote on boron from Minerals for the Genetic Code : "Boron is known as the calcium helper and for the metabolism of calcium, magnesium and phosphorus. Boron improves retention of both calcium and magnesium and elevates circulation of serum concentrations of testosterone.
Boron works in the body toward brain function, activates vitamin D, promotes electrical brain activity, enhances memory, and promotes alertness. Signs of possible deficiency include ADD/ADHD, osteoporosis, arthritis, fatigue, decreased motor function, decreased short-term memory, decreased brain function, and increased loss of calcium and magnesium in the urine."
As if all that wasn't enough, boron in the form of boric acid is our safest and most effective ant control, and is used in many areas to treat wood in ground contact from ant and termite damage, as well as being used to fire-proof cellulose insulation and as a flux for soldering and brazing metal. 20 Mule Team Borax, available in the laundry soap section of most grocery stores, is a pure and natural mined product containing about 10% boron. It is quite suitable for garden use in small quantities. 7 ounces of 20 Mule Team Borax per 1000 square feet equals approximately 1 part per million of boron. Take it easy. As noted above, a boron deficiency can be induced simply by dry soil. Don't add boron without a soil test that indicates a need for it. 1-2 ppm per year is maximum.
SoilMinerals.com carries the Solubor brand of agricultural boron, which is standardized to 20% Boron. It is water soluble and is easily used for soil applications, fertilizer mixes, or foliar feeding.
References Cited and/or Used for the above:
(In No Particular Order)
Eco-Farm by Charles Walters and C. J. Fenzau Acres USA 1996
Soil Chemistry 2nd Edition by Bohn, McNeal, O'Connor Wiley-Interscience 1985
Science in Agriculture by Arden Andersen Acres USA 2000
Mainline Farming for Century 21 by Skow and Walters Acres USA 1995
Staying Healthy with Nutrition by Elson Haas Celestial Arts 1992
Nutrition and Physical Degeneration by Weston A. Price Price-Pottenger Nutrition Foundation 1939/2004
Biological Farmer, the by Gary F. Zimmer Acres USA 2000
Soil Fertility by Foth and Ellis John Wiley and Sons 1988
Nutrition Rules by Graeme Sait Soil Therapy Pty Ltd 2003
Chemistry Made Simple by Hess (rev. by Thomas) Doubleday 1984
Minerals for the Genetic Code by Charles Walters with Dr. Richard Olree Acres USA 2006
Nourishing Traditions by Sally Fallon with Mary Enig New Trends 2001
Random House Dictionary of the English Language 2nd Edition Unabridged Flexner and Hauck ed. Random House 1987
OLD WORLD MIX - MINERALS & METALS, PAINTS & STAINS, CATALYSTS & NANOMATERIALS, GRANITE & PORPHYRY, AGGREGATES & BUILDING STONE, COPPER, ZINC, SILVER, & GOLD
CALIFORNIA - EPA DELISTING IRON MOUNTAIN MINE!
COPPER, CADMIUM, AND ZINC; QAPP Information: QA Info Missing; Keswick dam to Cottonwood creek; Final Listing Decision: Delist from 303(d) list. JUNE 15, 2010;
Last Update: July 24, 2010 This page compares maximum contaminant levels (MCLs) and public health goals (PHGs).
Posted by the EPA on August 20th, 2010 - 11:58 AM
PAHOMAKI FERTILIZER ADDS IMMI MINERALS SLOW RELEASE ESSENTIAL MICRONUTRIENTS
SULFUR COATED IBDU/UREA & ARMAN MIX OFFERED FOR NURSERYMANS SPECIALTY BLEND
HUMATE RICH CORN GLUTEN MICROBIAL INNOCULANT FOR HU/MOUNTAIN COMPOST
SAFE AND NATURAL MINERALS FOR HEALTHY SOIL
(not for marijuana cultivation) no smoking
Symptoms of mineral deficiency in soil
| Element | Deficiency symptoms | Probable cause and ordinary remedy |
| Nitrogen | Growth is poor; shoots are short; leaves are small; and yellow brassicas turn pink then orange. Fruit or tubers are small. |
As an immediate booster, spray with diluted liquid seaweed or fish fertiliser. Incorporate as much compost and manure as possible. |
Phosphorus |
Root development and flower bud formation are poor, and plants sometimes also show symptoms similar to that of nitrogen deficiency. Brown spots may appear on leaves, or leaf edges may turn brown. Fruit has an acid flavour. | Bonemeal is rich in phosphorus. Incorporate 120 g per square metre before planting. The deficiency appears more often in acid soils. |
| Potassium | Growth becomes stunted, and leaves turn a dull bluegreen, with browning at the leaf tips or leaf margins, or showing as blotches. Leaves of broad-leaved plants curl downwards. |
Most often seen on light, sandy soils. Comfrey tea is high in potassium; dilute 1 part tea to 15 parts water and apply to soil. Wood ash is high in potassium. |
| Magnesium | Magnesium deficiency shows either as a loss of colour or as a mottling of red, orange, brown and purple tints. | Excessive potash application may be responsible. Spray with a solution of Epsom salts (250 g in 12 litres water). If liming soil, apply dolomite, which is rich in magnesium as well as calcium, or green sand. |
| Manganese | Manganese deficiency occurs in sandy and alkaline soils, frequently in combination with iron defi ciency. Chlorosis (loss of colour) begins on older leaves. The leaves of green peas develop brown patches. Beetroot leaves have red-brown speckling. | This is most evident in poorly drained soils. Lift beds to improve drainage. Overliming can also be responsible. Never apply manganese to soils with a pH below 6. |
Iron |
Chlorosis (loss of colour) occurs on young shoot tips and leaves, while the veins remain green. Eventually, shoots die back. This condition usually occurs in alkaline soils, which prevent plants from absorbing iron. |
Sequestered iron (iron EDTA) used as a foliar spray produces rapid results. Check soil pH and acidify with sulphur and regular compost additions. |
| Boron | The roots of beetroots, swedes and turnips turn brown. Cauliflower curds also turn brown. Brown cracks appear across the stalks of celery. Apple cores become ‘corky'. The growing points of plants die off. | Mix 30 g borax with sand and disperse evenly over 18 square metres of soil. Or spray crops fortnightly with liquid seaweed fertiliser. Overliming can cause this problem. |
Molybdenum |
Leaves, particularly of broccoli and cauliflowers, develop a disorder known as whiptail. Leaves become distorted and shrink back to the midrib, giving a tail-like appearance. On tomatoes, leaves become mottled and roll forward. | Apply ground dolomite to acidic soils. Add kelp meal to soil. For a short-term remedy, apply sodium molybdate at 30 g per 8 litres water. This will treat 8 square metres of soil. |
| Calcium | This shows most commonly in tomatoes and capsicums as a darkened, shrivelled end on fruit. It also causes bitter pit in apples. | Uneven soil moisture causes a failure of calcium uptake from the soil. This is particularly evident in pot-grown plants and in light soils. Water regularly. To add calcium, incorporate crushed eggshells into compost. |
TRY AG-GEL!
Ag-Gel micronutrient with soluble silicate offers growers these performance benefits in agricultural applications:
Reduces disease pressure.
Provides resistance to mineral stress.
Decreases climate stress.
Improves plant strength.
Increases growth and yeild.
Ag-Gel micronutrient with silicate reduces the stress from diseases including powdery mildew, pythium root rot, and rice blast. It resists or prevents toxicity from phosphorous, manganese, aluminum, and iron, and increases plant tolerance to salt.
Application of Ag-Gel micronutrient with soluble silicate improves leaf erectness, reduces susceptibility to lodging in grasses, and improves photosynthesis efficiency.
Crops that have demonstrated benificial responses to Ag-Gel micronutrient with soluble silicate application include rice, wheat, barley, sugar cane, tomatoes, beans, cucurbits, strawberries, grapes, roses, apples, grass, and ornamental plants.
Ag-Gel micronutrient with soluble silicate can increase growth and yield by providing micronutrients and by reducing susceptibility to diseases and pests.
Iron in Plants
Iron is a absorbed by plant roots as Fe²+ and Fe³+. The chemical properties of iron making it an important part of oxidation-reduction reactions in both soils and plants. Because iron can exist in more than one oxidation state, it accepts or donates electrons according to the oxidation potential of the reactants. The transfer of electrons between the organic molecule and iron provides the potential for many of the enzymatic transformations. Several of these enzymes are involved in chlorophyll synthesis, and when iron is deficient chlorophyll production is reduced, which results in the characteristic chlorosis symptoms of iron stress.
Iron is a structural component of porphyrin molecules. These substances are involved in band oxidation-reduction reactions in respiration and photosynthesis. As much as 75% of the total cell iron is associated with chloroplast, and up to 90 percent of the iron in the leaves occurs with lipoprotein of the chloroplast and the mitochindria membranes.
The sufficiency range of time in plant tissue is normally between 50 and 250 ppm. and in general, when iron contents are 50 ppm or less in the dry matter, deficiency is likely to occur. Iron deficiency symptoms show up in the young leaves of plants, first because iron does not readily translocate from older tissues to the tip meristem; as a result, growth ceises. The young leaves develop an interveinal chlorosis, which progresses rapidly over the entire leaf. In severe cases the leaves turn entirely white. Iron toxicity can be observed under certain conditions. For example, in rice grown on poorly drained or submerge soils, a condition known as a bronzing is associated with greater than 300 ppm iron levels in rice leaves at telling.
Iron in soil
Mineral Fe. Iron comprises 5% of the earth's crust and is the fourth most abundant element in the lithosphere. Common primary and secondary iron minerals are olivene, siderite, hematite, goethite, magnetite, and limonite. Iron can be either concentrated or depleted during soil development; thus, iron concentrations in soil vary widely, from 0.7 to 55%. Most of the soil iron is found in primary minerals, clays, oxides, and hydroxides.
Forms and functions of Calcium in plants.
Ca is absorbed by plants as Ca²+ from the soil solution and is supplied to the root surface by mass flow and root interception. Ca deficiency is uncommon but can occur in highly leached and unlimed acidic soils. In soils abundant in Ca²+, excessive accumulation in the vicinity of roots can occur.
Ca²+ concentration in plants range from 0.2 to 1.0%. Ca is important in the structure and permeability of cell membranes. Lack of Ca²+ causes a breakdown of membrane structure, with resultant loss in retention of cellular diffusible compounds. Ca enhances uptake of NO3 and therefore is interrelated with N metabolism. Ca²+ provides some regulation in cation uptake. For example, studies have shown that K+ and Na+ uptake are about equal in the absence of Ca²+, but in its presence, K+ uptakes greatly exceeds Na+ uptake.
Ca is essential for cell elongation and division, and Ca²+ deficiency manifests itself in the failure of terminal buds of shoots and apical tips of roots to develop, which causes plant growth to cease. In corn Ca²+ deficiency prevents the emergence and unfolding of new leaves, the tips are almost colorless and are covered with sticky gelatinous material that causes them to adhere to one another. In fruits and vegetables, the most frequent indicator of Ca²+ deficiency consists of disorders in the storage tissues. Examples of Ca²+ disorders are bloom-end rot in tomato and bitter pit of apples. Finally, Ca²+ is generally immobile in the plant. There is very little translocation of Ca²+ in the phloem, and for this reason there is often a poor supply of Ca²+ to fruits and storage organs. Downward translocation of Ca²+ is also limited in roots, which usually prevents them from entering low-Ca soils.
Conditions impairing the growth of new roots will reduce root access to Ca²+ and induce deficiency. Problems related to inadequate Ca²+ uptake are more likely to occur with plants that have smaller root systems than with those possessing more highly developed root systems.
Special attention must be given to the Ca²+ requirements of certain crops, including peanuts, tomatoes, and celery, which are often unable to obtain sufficient Ca²+ from soils supplying adequate Ca²+ for most other crops. Proper Ca²+ supply is important for tree fruits and other crops such as alfalfa, cabbage, potatoes, and sugar beets, which are known to have high Ca²+ requirements.
Ca in Soil
The Ca concentration in the earth's crust is about 3.5%; however, the Ca²+ content in soils varies widely. Sandy soils of humid regions contain very low amounts of Ca²+, whereas Ca²+ normally ranges from 0.7 to 1.5% in noncalcareous soils of humid temperate regions; however, highly weathered soils of the humid tropics may contain as little as 0.1 to 0.3% Ca. Ca levels in calcareous soils vary from less than 1% to more than 25%.
Calcium concentrations in the soil higher than necessary for proper plant growth normally have low affect on the Ca²+ uptake, because Ca²+ uptake, is genetically controlled. Although the concentration of the soil solution is about 10 times greater than that of potassium, it's a uptake is usually lower than that a potassium. Plants capacity for uptake is limited because it can be absorbed only by young root tips in which the cell walls of the in the endodermis are still unsuberized.
As a general rule, course-textured, humid-region soils formed from rocks low in calcium minerals are low in calcium. The fine-textured soils formed from rocks high in calcium are much higher in both exchangeable and total calcium. However, in humid regions, even soils formed from limestone are frequently acetic in the surface layers because of the removal of calcium and other cations by excess leaching. As water containing dissolved CO2 percolates through the soil, the H + forms displaces Ca²+ (and other basic cations) on the exchange complex. If there is considerable percolation of such water through the soil profile, soils gradually become acidic. When leaching occurs, Na+ is lost more readily than Ca²+, however, since exchangeable and solution Ca²+ is much greater than Na+ in most soils, the quantity of Ca²+ lost is also much greater. Calcium is often the dominant cation in drainage waters, springs, streams, and lakes. Leaching of calcium ranges from 75 to 200 lbs. per acre per year. Since Ca²+ is absorbed on the cation exchange capacity (CEC), losses by erosion may be considerable in some soils.
Copper in plants.
Cu is absorbed by plants as the cupric ion, Cu²+, and may be absorbed as a component of either natural or synthetic organic complexes. It's normal concentration in plant tissue ranges from 5 to 20 ppm. Deficiencies are probable when Cu levels in plants fall below 4 ppm in the dry matter.
Symptoms of Cu deficiency vary with crop. In corn the youngest leaves become stunted, and as the deficiency becomes more severe, the young leaves pale and the older leaves die back. In advanced stages, dead tissue appears along the tips and edges of the leaves in a pattern similar to that of K deficiency. Cu-deficient small-grain plants lose color in young leaves, which eventually break, and the tips die. Stem melanosis and take-al root rot disease occur in certain wheat varieties when Cu is deficient. Also ergot infection is associated with Cu deficiency in some wheat and barley varieties. In many vegetables crops the leaves lack turgor. They develop a bluish-green cast, become chlorotic, and curl, and flower production fails to take place.
Cu in it's reduced form readily binds and reduces O2. In the oxidized form the metal is readily reduced, and protein-complexed Cu has a high redox potential. Enzymes that create complex polymers such as lignin and melanin exploit these properties of Cu. Cu is unique in its involvement in enzymes, and its cannot be replaced by any other metal ion.
Toxicity symptoms include reduced shoot vigor, poorly developed and discolored root systems, and leaf chlorosis. The chlorotic condition in shoots superficially resembles Fe deficiency. Toxicities are uncommon, occurring in limited areas of high Cu availability; after additions of high-Cu materials such as sewage sludge, municipal composts, pig and poultry manure's, and mine wastes; and from repeated use of Cu-containing pesticides.
Copper in soil.
Cu concentration in the earth's crust average about 55 t0 70 ppm. Igneous rocks contain 10 to 100 ppm Cu, while sedimentary rocks contain between 4 and 45 ppm Cu. Cu concentration in soils ranges from 1 to 40 ppm and averages about 9 ppm. Total soil Cu may be 1 or 2 ppm in deficient soils.
Copper interaction with other nutrients.
There are numerous interactions involving Cu. Applications of N-P-K fertilization can induce Cu deficiencies. Furthermore, increased growth resulting from the application of N or other nutrients may be proportionally greater than Cu uptake, which dilutes Cu concentration in plants. Increasing the N supply to crops can reduce mobility of Cu in plants, since large amounts of N in plants impede translocation of Cu from older leaves to new growth. High concentration of Zn, Fe, and P in soil solution can also depress Cu absorption by plant roots and may intensify Cu deficiency.
Plant Factors.
Crops vary greatly in response to Cu. Among small-grain species, rye has exceptional tolerance to low levels of soil Cu and will be healthy, whereas wheat fails completely without the application of Cu. Rye can extract up to twice as much Cu as wheat under the same conditions. The usual order of sensitivity of the small grains to Cu deficiency in the field is wheat > barley > oats > rye. Varietal differences in tolerance to low Cu are important, and sometimes they can be as large as those among crop species.
Severe Cu deficiency in crops planted in soils with high C/N residues is related to (1) reactions of Cu with organic compounds originating from decomposing straw, (2) competition for available Cu by stimulated microbial populations, and (3) inhibition of root development and the ability to absorb Cu. If the soil-available Cu is low, manure added to a field may accentuate the problems. Organic material from manure, straws, or hay can tie up Cu, making it unavailable to plants.
Copper - Functions in the plant or soil
Essential for chlorophyll formation
Essential in many plant enzymes (oxidases in particular)
It is involved in electron transfer
Essential in enzyme systems associated with grain, seed, and fruit formation
It has a marked effect on the formation and chemical composition of cell walls - Very distinct on stem tissue
Copper - Special considerations
Copper can be used as a fungicide on plants
Excessive amounts of copper can cause iron deficiency
It is rather immobile in plants, therefore deficiency symptoms usually occur on new growth
Copper - The conditions associated with deficiencies
Sandy soils
High organic soils
Overlimed soils
High pH soils
Soils with high concentrations of phosphate and nitrogen
Copper - Deficiency Symptoms
Corn
General chlorosis of younger leaves
Leaf tips die and curl like pig tails
Interveinal chlorosis toward lower end of leaves
Small Grains
High organic matter soils - Yellowing of plant
Leaf tip dieback and twisting of leaf tips
Alfalfa
Youngest tissue turns faded green with grayish cast
Plants appear bushy and drought-stricken
Forms and Functions of Magnesium (Mg) in Plants
Mg is absorbed by plants as Mg²+ from the soil solution and, like Ca²+, is supplied to plant roots by mass flow and diffusion. Root interception contributes much less Mg²+ to uptake than Ca²+. The amount of Mg²+ taken up by plants is usually less than that of Ca²+ or K+.
Mg²+ concentration in crops varies between 0.1 to 0.4%. Mg²+ is a primary constituent of chlorophyll, and without chlorophyll the autotrophic green plant would fail to carry on photosynthesis. Chlorophyll usually accounts for about 15 to 20% of the total Mg²+ content of plants.
Mg also serves as a structural component to ribosomes, stabilizing them in the configuration necessary for protein synthesis. As a consequence of Mg²+ deficiency, the proportion of protein N decreases and that of non proteins N generally increases in plants.
Mg is associated with transfer reactions involving phosphate-reactive groups. Mg is required for maximum activity of most every phosphorylating enzyme in carbohydrate metabolism. Most reactions involving phosphates transfer from bad adenosine triphosphate (ATP) require Mg²+. Since the fundamental process of energy transfer occurs in photosynthesis, glycolysis, the citric or acid cycle, and respiration, Mg²+ is important throughout plant metabolism.
Because of the mobility of plant Mg²+ and it's ready transportation from older to younger plant parts, deficiency symptoms often appear first on the lower leaves. In many species, shortage of Mg²+ results in interveinal chlorosis of the leaf, in which only the veins remain green. In more advance stages the leaf tissue becomes uniformly pale yellow, then brown and necrotic. In other species, notably cotton, the lower leaves may develop a reddish-purple cast, gradually turning brown and finally necrotic.
Mg in Soil
Mg constitutes 1.93% of the earth's crust; however, the Mg²+ content of soils ranges from 0.1% in course, sandy soils in humid regions to 4% in fine-textured, arid, or semiarid soils formed from high-Mg parent materials.
The Mg concentration of soil solutions is typically 5 to 50 ppm in temperate- region soils, although Mg²+ concentrations between 120 and 2,400 ppm have been observed. Mg²+, like Ca²+, can be leached from soils, and Mg losses of 5 to 60 lbs./acre have been observed. The amounts lost depend on the interaction of several factors, including the Mg content of soil, rate of weathering, intensity of leaching, and the uptake by plants. Leaching of Mg²+ is often a problem in sandy soils, particularly following the addition of fertilizer such as KCL and K2SO4. Very little Mg displacement occurs when equivalent amounts of K are applied as either CO3²-, HCO3, or H2PO4-. Apparently, Mg²+ desorption and leaching in coarse-texture soils are enhanced by the presence of soluble Cl- and SO4²-. As with Ca²+, erosion losses can be considerable in some soils.
Mg in clay minerals is slowly weathered out by leaching and exhaustive cropping. Conditions in which Mg is likely to be deficient include acidic, sandy, highly leached soils with low CEC; calcareous soils with inherently lower Mg levels; acidic soils receiving high rates of lining materials low in Mg; higher rates of NH4+ or K+ fertilization; and crops with Mg demand.
Mg Sources
In contrast to calcium, the primary nutrient fertilizers contain magnesium, with the exception of K2SO4 · MgSO4. Dolomite is commonly applied to low-Mg acidic soils. K2SO4 · MgSO4 and MgSO4 (Epsom salts) are the most widely used materials in dry fertilizer formulation. Other materials containing Magnesium are magnesia (MgO, 55% Mg), magnesium nitrate [Mg(NO3)2. 16% Mg], magnesium silicate (basic slag, 3 to 4 % Mg; serpentine, 26% Mg), magnesium chloride solution (MgCl2 ( 10 H20, 8 to 9% Mg), synthetic chelates (2 to 4% Mg), and natural organic complexing substances (4 to 9% Mg). MgSO4, MgCl2, Mg(NO3)2, and synthetic and natural magnesium chelates are well-suited for application in clear liquids and foliar sprays. Magnesium deficiency of citrus trees in California is frequently corrected by foliar applications of Mg(NO3)2. In some tree-fruit growing areas, MgSO4 solutions are applied to maintain levels, and in seriously deficient orchards several annual applications are necessary. K2SO4 ¸ MgSO4 are the most widely used magnesium additives in suspensions. Special suspension grade [100% passing through a 20-mesh screen] of this material is available commercially. Magnesium content in animal and municipal waste is similar to S content and can therefore be used to supply sufficient magnesium.
Manganese in Soil
Mineral manganese. Manganese concentration in the earth's crust average 1000 ppm, and manganese is found in most iron-magnesium rocks. Manganese, when released through weathering of primary rocks, will combine with O2 to form secondary minerals, including pyrolusite (MnO2), hausmannite (Mn3O4), and manganite (MnOOH). Pyrolusite and manganite are the most abundant.
Total manganese in soils generally range between 20 and 3,000 ppm and averages about 600 ppm. Manganese in soils occurs as various oxides and hydroxide coated on soil particles, deposited in cracks and veins, and mixed with iron oxides and other soil constituents.
Soil solution manganese. The principal species in solution is Mn²+ , which decreases 100-fold for each unit increase in pH, similar to the behavior of other divalent metal cations. The concentration of Mn²+, in solution is predominately controlled by MnO2. Concentration of Mn²+ in the soil solution of the acidic and neutral soils is commonly in the range of 0.01 to 1 ppm, with organically complexed Mn²+ comprising about 90 percent of solution Mn²+. Plants take up Mn²+, which moves to their root surface by diffusion.
Manganese in soil solutions is greatly increased under acidic, low-redox conditions. In extremely acidic soils, Mn²+ solubility can be sufficiently great to cause toxicity problems in sensitive plant species.
Interaction with other nutrients
High levels of copper, iron, or zinc, can reduce manganese uptake by plants. Addition of acid-forming NH4+ to soil will enhance manganese uptake.
Plant Factors
Several plant species exhibit differences in sensitivity to manganese deficiency. These differences in the response of manganese deficient and manganese inefficient plants are due to internal factors rather than to the facts of the plants on the soil. Reductive capacity at the root may be the factor restricting manganese uptake and translocation. There may also be significant differences in the amounts and properties of root exudates generated by plants, which can influence Mn²+ availability. It is possible that plant characteristics possessed by irony fission plants may similarly influence manganese uptake in plants and their tolerance to manganese stress.
Manganese sources
Organic manganese. The manganese concentration in most animal wastes is similar to zinc, ranging between 0.01 and 0.05% (0.2and 1 lb. / t). Thus, with most manures, average application rates will provide sufficient plant available manganese. As with iron, zinc, and copper, the primary benefits of organic waste application is increased organic material and associated natural chelation properties that increased manganese concentration in soil solution and plant availability. As with the other micronutrients, manganese content in municipal waste varies greatly depending on the stores. On average, manganese content is about half the copper content (0.05%, or one pound per ton).
Organic manganese. Manganese sulfate is widely used for correction of manganese deficiency and may be soil or foliar applied. In addition to organic manganese fertilizers, natural organic complexes and chelated manganese are available and are usually foliar applied.
Manganese oxide (MnO) is only slightly water soluble, but it is usually a satisfactory source of manganese. Manganese oxide must be finely ground to be affected. Rates of manganese applications range from 1 to 25 lbs. per acre; higher rates are recommended for broadcast application, while lower rates are foliar applied. Band-applied manganese is generally more effective than broadcast manganese, and band treatments are usually about one-half of the broadcast rates. Oxidation to less available forms of manganese is apparently delayed with band-applied manganese. Applications at the higher rates may be required on organic soils. Band application of manganese in combination with N-P-K fertilizers is commonly practiced.
Broadcast application of manganese chelates and natural organic complexes is not normally advised because soil calcium or iron can replace manganese in these chelates, and the freed manganese is usually converted to unavailable forms. Meanwhile, the more available chelated calcium or iron probably accentuates the manganese deficiency. Limestone or high-pH-induced manganese deficiency can be rectified by acidification resulting from the use of sulfur or other assets-forming materials.
Manganese - Functions in plant or soil
It has a role in production of chlorophyll but is not a component
It is involved in electron transfer reactions
Involved in enzyme systems, arginase and phosphotransferase
Involved in enzyme systems of sugar metabolism
Participates in oxygen-evolving system of photosynthesis
Involved in electron transport in chloroplasts
Involved in transfer of electrons from water to the photosynthetic II protein fraction
It accelerates germination and maturity
Manganese - Special considerations
Its solubility increases 100 fold per unit drop in pH - can be toxic in low pH soils
Manganese concentrated in leaves and stems - seeds contain only small amounts
High concentration of Mn in soil can lead to poor iron absorption
Manganese - The conditions associated with deficiencies
High soil pH
High organic soils
Cool wet soil conditions
Overlimed soils - High calcium levels
Manganese - Deficiency symptoms
Corn & Grain Sorghum
Interveinal chlorosis with general stunting similar to iron deficiency except iron is seldom short on high organic matter soils
Small Grains
Marginal gray and brown necrotic spots and streaks appearing on basal portion of leaves
Ends of affected leaves may stay green for an extended time
On older affected leaves the spots are oval and gray brown
Soybeans
Interveinal chlorosis
As deficiency becomes more severe, leaves become pale green, then yellow
Brown necrotic spots develop as deficiency becomes more pronounced
Veins remain darker as compared to iron deficiency
Zinc (Zn)
Zinc is involved in many enzymatic activities, but it is not known whether it acts as a functional, structural, or regulatory cofactor.
Zinc - Functions in plant or soil
Involved in large number of enzymes - including dehydrogenases, aldolases, isomerases, transphosphorylases, RNA and DNA polymerases
Involved in carbohydrate metabolism
Involved in the rate of protein synthesis
Zinc - Special considerations
Availability enhanced significantly by presence of mycorrhizal fungi in the soil
It is not subject to oxidation-reduction reactions in soil-plant system
It is quite immobile in the soil
It will bond strongly with sulfide formed from decomposing humus under anaerobic conditions
Solubility increases 100 fold for each pH unit lowered
Zinc - The conditions associated with deficiencies
High pH soils
Calcareous soils
Overlimed soils
Sandy soils
Soils where anaerobic decomposition is present
High soil phosphorus levels - Varies by crop
Cold wet soils
Zinc - Deficiency symptoms
Corn
Appear within first 2 weeks after emergence
Broad band of chloritic tissue on one or both sides of leaf midrib - most pronounced towards base of leaf
Young leaves most severely affected
Delayed maturity and reduced yields
Grain Sorghum
Similar to corn
Small Grain
Similar to corn
Soybeans
Chlorosis of younger leaves
Chlorosis may extend to all leaves on plant
Total chlorosis without green veins
Silica (Si)
Silica is one of the most abundant elements on the surface of the earth. Silica contributes to the structure of cell walls. Concentrations of up to 10% occur in silica rich plants. Silica primarily impregnates the walls of epidermis and vascular tissues, where it appears to strengthen the cell wall, reduce water loss, and retard fungal infection.
The involvement of silica in root functions is believed to be its contribution to the drought tolerance of crops. Although no biochemical role for silica in plant development has been positively identified, it has been proposed that in enzyme-silicon complexes they act as protectors or regulators of photosynthesis and enzyme activity.
The beneficial effects of silicon have been attributed to corrections of soil toxicity arising from high levels of available manganese, iron, and aluminum; plant disease resistance; increased availability of phosphorus; and reduced transpiration.
Silica - Functions in plant or cell
In epidermal cell walls silica reduces water loss by cuticular transpiration
Silica acts as a barrier against invasion of parasites and pathogens in endodermis cells of roots
Silica increases epidermal layer of leaves resistance to fungal attacks.
Silica is associated with incorporation of inorganic phosphate into ATP, ADP, and sugar phosphates
Silica - Special considerations
Because of the abundance of silica in the soil, it is difficult to prove it is an essential micronutrient for higher plants
Silica reduced manganese and iron toxicity where soil levels are excessive
Silica - The conditions associated with deficiencies
Undefined
Silica - Deficiency symptoms
Wetland Rice
Reduced vegetative growth and grain production
Sugarcane
Drastic reduction in growth
Leaf freckling on leaf blades directly exposed to full sunlight
Sulfur (S)
Although more than 95% of soil sulfur is bonded in organic forms and present in the upper layers of most soils, these reserves are not readily available to the plant.
Forms of Sulfur in Plants:
Sulfur is absorption by plant roots almost exclusively as sulfate, SO4-². Small quantities of SO2 can be absorbed through plant leaves and utilized within plants, but high concentrations are toxic. Typically concentrations of sulfur in plants range between 0.1 and 0.5%. Among the families of crop plants sulfur content increases in order Gramineae < Leguminosae < Cruciferae and is reflected in the differences in sulfur content of their seeds: 0.18-0.19%, 0.25-0.3%, and 1.1-1.7%, respectively.
Functions of Sulfur in Plants
Sulfur is required for synthesis of the S-containing amino acids, which are essential components of protein. Approximately 90% of the sulfur in plants is found in these amino acids. Increasing sulfur availability increase sulfur content in leaves, which increases sulfur containing amino acids.
Plants suffering sulfur deficiency accumulate non-protein nitrogen in the form of NH2 and NH3. It is apparent that sulfur fertilization improves the quality of this forage by narrowing the nitrogen to sulfur ratio. A Nitrogen to sulfur ratio of between 9:1 and 12: 1 is needed for effective use of nitrogen by rumen and microorganisms. This beneficial effect of sulfur fertilization on improving crop quality through reductions in the nitrogen to sulfur ratio is important in animal nutrition.
Ag-Gel is a naturally occurring micronutrient plant fertilizer concentrated into a soluble silicate gel. Produced from naturally occurring micronutrient mineral sources, Ag-Gel is a semi-permeable gel membrane that absorbs and holds over 700% its dry weight in water. When applied to the soil it creates a nutrient rich moisture barrier which helps reduce evaporation from the soil while providing plants essential nutrients they need to thrive.
FCC Federal Communications Commission free nationwide wireless broadband M2Z Networks National Broadband Plan wireless broadband
by James Plafke | 11:20 am, September 2nd, 2010
The Federal Communications Commission has denied a plan which would've brought free wireless broadband to the entire nation. In related news: :(.
Four years after a company named M2Z Networks proposed a plan to bring free wireless broadband access to the entire nation, the FCC shot it down. Considering the FCC spent about four years sprucing the plan up to their standards, people are wondering exactly why they'd go through all that trouble and then shoot it down. Some speculate that the plan directly conflicts with the FCC's own National Broadband Plan , while others assume that M2Z's plan would make wireless providers very unhappy.
The Shasta County Resource Advisory Committee (RAC) met at the USDA Service Center in Redding, California, on September 1, 2010 at 8:30 a.m. The meeting consisted of an update on Shasta County projects, RAC recommended project progress, as well as changes made to projects to meet RAC funding 2010/2011 allocations.
§ 48A Qualifying advanced coal project credit.
(5) Greenhouse gas capture capability.
The term “greenhouse gas capture capability” means an integrated
gasification combined cycle technology facility capable of adding
components which can capture, separate on a long-term basis, isolate,
remove, and sequester greenhouse gases which result from the generation
of electricity.
(6) Electric generation unit.
The term “electric generation unit” means any facility at least 50 percent
of the total annual net output of which is electrical power, including an
otherwise eligible facility which is used in an industrial application.
(7) Integrated gasification combined cycle.
The term “integrated gasification combined cycle” means an electric
generation unit which produces electricity by converting coal to synthesis
gas which is used to fuel a combined-cycle plant which produces electricity
from both a combustion turbine (including a combustion turbine/fuel cell
hybrid) and a steam turbine.
(2) Requirements for certification.
For the purpose of subsection (d)(2)(D), a project shall be eligible for
certification only if the Secretary determines that—
(A) the applicant for certification has received all Federal and State
environmental authorizations or reviews necessary to commence
construction of the project; and
(B) the applicant for certification, except in the case of a retrofit or
repower of an existing electric generation unit, has purchased or
entered into a binding contract for the purchase of the main steam
turbine or turbines for the project, except that such contract may
be contingent upon receipt of a certification under subsection
(d)(2) .
(3) Priority for certain projects.
In determining which qualifying advanced coal projects to certify under
subsection (d)(2), the Secretary shall—
(A) certify capacity, in accordance with the procedures set forth in
subsection (d), in relatively equal amounts to—
(i) projects using bituminous coal as a primary feedstock,
(ii) projects using subbituminous coal as a primary
feedstock, and
(iii) projects using lignite as a primary feedstock,
(B) give high priority to projects which include, as determined by
the Secretary—
(i) greenhouse gas capture capability,
(ii) increased by-product utilization,
(iii) applicant participants who have a research partnership
with an eligible educational institution (as defined in section
529(e)(5)), and
(iv) other benefits , and
(C) give highest priority to projects with the greatest separation
and sequestration percentage of total carbon dioxide emissions.
Shays’s Rebellion, the Anti-Federalists,
and the Consolidating Constitution
By Geoffrey Plauché
POLI 7998
April 12, 2004
The Federalist Papers, letters written by Alexander Hamilton, James Madison, and John Jay in support of the newly proposed Constitution, are well known and well read even over two hundred years after they were written.1 Collectively, these letters are considered a milestone in American political science. While they present a systematic defense of the Constitution, this fundamental document did not yet include the Bill of Rights we are so familiar with today. It is the less well known and less well studied writings of the opponents of the Constitution, the so-called Anti-Federalists, that we have to thank for this much needed addition. The opponents of the Constitution were as diverse in their reasons for opposing it as were the supporters of the proposed new system. However, one can find common themes that run through many of the Anti-Federalists’ writings. Among these is a distrust of the elites, the aristocratic class, who were promoting the new system of government and no doubt would assume a prominent role within it. The Anti-Federalists also feared, and rightly so, what they perceived as features of the new Constitution that would inevitably lead to a consolidation of power in the national government. The state governments would be abolished, or at the very least be so subordinated to the national government as to have been stripped of sovereignty. Such a government would be tyrannical. As it turns out, history has proven the Anti-Federalists right in many respects, wrong in others. Ultimately, they failed in preventing the ratification of the Constitution, though they were instrumental in forcing the Federalists to add the Bill of Rights. Why did they oppose the Constitution? And what did they find so objectionable about it? I will attempt to answer these questions in the remainder of this essay.
1 The Federalist Papers, Clinton Rossiter, ed., with an introduction and notes by Charles R Kesler, (Penguin Putnam Inc., 1999). 1
But first, in order to gain perspective on the arguments of the Anti-Federalists and the Federalists, it would be fruitful to delve briefly into the background history that led to the framing of the Constitution in the first place. The United States were at the time a federal republic.2 The word federal was used differently at the time, our current form of government not having been invented yet. A federal government, or confederation, consists of a very weak central government that serves certain delegated functions for, and whose powers are delegated by, a number of sovereign. In this sense, The Impartial Examiner was correct when he argued that the Anti-Federalists were the true Federalists.3 The term confederation is now used solely to identify this form of government, while federation or federalism has shifted in meaning to identify a form of government that is structurally similar to that of a confederation but with a significantly stronger central government that shares sovereignty with its component regions.
The United States were governed by the Articles of Confederation. The men who would become known as Federalists saw three principal deficiencies in the current form of government. It became apparent, in the wake of the Revolution, that Congress was unable to pay off the national debt that had been taken on in order to fight the war for independence; Congress was unable to raise revenue by taxation or force the states to pay up. It also did not have sufficient power to regulate relations between the states and foreign nations. Congress could not force the states to abide by treaties or prevent them from signing their own at cross-purposes with each other. Thus it was recognized by
2 See the “Letters of Agrippa,” particularly VIII (December 25, 1787), in The Anti-Federalist: Writings by the Opponents of the Constitution, Herbert J. Storing, ed., selected from The Complete Anti-Federalist by Murray Dry (Chicago: University of Chicago Press, 1985).
3 The Anti-Federalist, p. 276; cf. The Complete Anti-Federalist, 5.14.25-26.
2
many that the Articles of Confederation had to be strengthened. But these were not sufficient reasons to jettison the old system of government entirely.
The third principal deficiency of the Articles of Confederation was the perceived weakness of the national and state governments in the face of civil unrest and insurgencies. The immediate catalyst of the Constitutional Convention of 1787 was an event in Massachusetts called Shays’s Rebellion. This event was used by the ruling elites as an impetus for improving the system of government and, later, as a justification for the dire need of ratifying the new Constitution. Most importantly, it was this event, as it was reported to him by his friends, that stirred George Washington out of his retirement and convinced him to preside over the Constitutional Convention. His presence was pivotal, as it gave the convention and the controversial Constitution a special air of legitimacy, for though the “other delegates…were men of great prestige,…none as yet had been deemed demigods. Washington, in contrast, was already a towering figure, larger than life, the nation’s most influential citizen. With Washington as presiding officer, everyone in the country had to take notice.”4
Of the rebellion that occurred in Massachusetts in 1786-87, Washington was informed by his former aide, Daniel Humphreys, that the uprising was due to the “licentious spirit prevailing among the people”; that the malcontents were “levellers” determined to “annihilate all debts public & private.”5 The rebels had shut down courts, allegedly to suspend debt suits, and had attempted to seize the national arsenal at Springfield to do…what? The arsenal would have made the rebels better armed than the
4 Leonard L. Richards, Shays’s Rebellion: The American Revolution’s Final Battle (Philadelphia: University of Pennsylvania Press, 2002), p. 133. The following discussion on Shays’s Rebellion is drawn form this work.
5 Quoted in Richards, p. 2.
3
state of Massachusetts had they been successful.6 Reports from Humphreys, Henry Knox, and others instilled in Washington a fear that the political fabric of the nation was unraveling and that something drastic had to be done to save it.
This popular account of Shays’s Rebellion is a highly distorted one, however. Far from being a mob of destitute farmers, Shays and his approximately 4,000 fellow rebels ranged from the heavily indebted and poor to the wealthy and well-to-do. Moreover, there is absolutely no correlation between debt and the backcountry towns of Massachusetts that rebelled. A large number of the rebels were veterans of the Revolutionary War, including Daniel Shays. The rebellion had popular support in western Massachusetts. Event those who did not actively take up arms were sympathetic to the rebel cause. Indeed, nearly all of the citizen militia either refused to suppress the rebellion or joined forces with the rebels. And the authorities in Boston were well aware of this.
If it was not to suspend debt suits and eradicate “all debt, public and private,” why did the farmers of the Massachusetts backcountry rebel? In their eyes, they were fighting an unjust government. They were the victims of a regressive tax system, an overly expensive and complicated judicial system, and were not adequately represented in the Massachusetts government, which was dominated by the Boston gentry and unresponsive to their needs. In short, their rebellion was in the spirit of the Revolution; they saw themselves as “Regulators…for the Suppressing of tyrannical government in the Massachusetts State,”7 a state that was no better than the British colonial rule they had so recently fought to throw off.
6 Ibid.
7 Ibid., p. 63. 4
Shays’s Rebellion was sparked by a sharp rise in regressive taxes. The taxes themselves were increased as part of the plan to pay off the state debt in less than ten years, and enrich the few at the expense of the many in the process. During and after the Revolutionary War, the states had issued notes to the soldiers as payment for their services. Few of them could afford to wait until their state was able to pay off its debts, particularly in the face of depreciating paper money, so they often sold them at a fraction of their value to speculators in order to receive payment that was more immediately useful for paying expenses. Large portions of these notes ended up in the hands of a relative few, many of whom had political connections. The mercantile-dominated legislature managed to get the state debt consolidated at twice the value necessary and intended to have it paid off quickly. Thus, taxes were raised to an oppressive level. Especially hard hit were the backcountry farmers, particularly those with grown sons. To make matters worse, payment had to be made in hard money.
The Massachusetts elite were able to put a negative spin on Shays’s Rebellion. Their version of the event not only served as the catalyst for the Constitutional Convention and got Washington out of retirement, but intensified the distrust felt among the elite about the ability of the common people to govern themselves. “The general conviction was that ordinary people, especially in Rhode Island and Massachusetts, were out of control and that there were “combustibles,” as Washington term them, in every state.”8 Madison proclaimed, “The insurrections in Massachusetts admonished all the States of the danger to which they were exposed.”9 Even Elbridge Gerry, who would later oppose the Constitution, declared, “The evils we experience flow from the excess of
8 Ibid., p. 134.
9 Ibid.
5
democracy.”10 Indeed, the new Constitution was decidedly aristocratic, especially the Senate – elected indirectly by the people through their state legislatures and designed with strong powers to counter the more popularly elected House of Representatives – and the President, who would be elected indirectly by the people through the Electoral College. Also, property requirements were included not only for suffrage but for eligibility for public office.
Though not recognizing the justness of Shays’s Rebellion, The Federal Farmer nevertheless percipiently identifies the aristocratic elite pushing for the adoption of the Constitution.
Though I have long apprehended that fraudulent debtors, and embarrassed men, on the one hand, and men, on the other, unfriendly to republican equality, would produce an uneasiness among the people, and prepare the way, not for cool and deliberate reforms in the governments, but for changes calculated to promote the interests of particular orders of men.11
The latter party, in reaction to the former (Shays & Co.), “in 1787, has taken the political field, and with its fashionable dependents, and the tongue and the pen, is endeavoring to establish in great haste, a politer kind of government.”12 Though he does not necessarily identify the Convention delegates as all being part of this group, he nevertheless holds that this group of “aristocrats support and hasten the adoption of the proposed constitution, merely because they think it is a stepping stone to their favorite object.”13
Though the tactics used in other states were not as underhanded, it will be instructive to have a look at the ratification process in the first state to take action on the Constitution: Pennsylvania. Samuel Bannister Harding informs us:
10 Ibid.
11 The Anti-Federalist, p. 33.
12 Ibid., p. 62.
13 Ibid.
6
In the State were two parties, embittered by a dozen years of violent struggle. On the one side, and for the moment in power, stood the greater proportion of the men of property, of education, of large ideas, and federal views; six of the eight delegates sent by the State to the Federal convention had come from their number, and the other two – Franklin and Ingersoll – if not neutral, were at most but moderate Constitutionalists. On the other side [the Constitutionalists] the leadership had been assumed by men of obscure birth, of little education or property, and of the narrowest views. Small wonder, then, that the cause espoused by the first met with the violent condemnation of the second, and that the contest which ensued was unprecedented in virulence and animosity.14
The Republican-controlled legislature moved quickly to call a ratifying convention before the opposition could get organized or obtain thorough information. Sixteen of the Anti-Federalist legislators attempted to prevent a quorum by fleeing the assembly. Two were rounded up and forcibly detained, so that a quorum was established; a vote was eventually taken and the Constitution was ratified. Though each article was debated, the dissenting opinion of the minority was kept out of the official record and no amendments were allowed to be proposed. Moreover, the delegates that made up the quorum, sixty-nine delegates, represented a mere ten percent of eligible voters. Less than a week later, an open letter was published by a person or group claiming to be the Pennsylvania Minority.15
After criticizing the lack of a Bill of Rights in the Constitution, a sticking point for the Anti-Federalists, and recommending fourteen, the Pennsylvania Minority goes on two raise three general objections. The first raises the point that, “the most celebrated writers on government, and…uniform experience, [tell us] that a very extensive territory cannot be governed on the principles of freedom, otherwise than by a confederation of republics, possessing all the powers of internal government; but united in the
14 Ibid., p. 199.
15 Ibid., p. 204-206; cf. Richards, p. 141. 7
management of their general, and foreign concerns.”16 The only other way to govern such a vast territory is through despotism. This position echoes that of the Federal Farmer, who elaborated further “that one government and general legislation alone, never can extend equal benefits to all parts of the United States: Different laws, customs, and opinions exist in the different states, which by a uniform system of laws would be unreasonably invaded.”17 Well aware of how large a territory the United States were and how fast they were expanding, he notes:
the laws of a free government rest on the confidence of the people, and operate gently – and never can extend their influence very far – if they are executed on free principles, about the centre, where the benefits of the government induce people to support it voluntarily; yet they must be executed on the principles of fear and force in the extremes – This has been the case of every extensive republic of which we have any accurate account.18
Agrippa, too, argues that no extensive empire can or has been “governed upon republican principles, and that such a government will degenerate to a despotism, unless it be made up of a confederacy of smaller states, each having the full powers of internal regulation.”19
The Anti-Federalists feared that the Constitution, at least partly due to the large territory of the United States but also on its own merits (or demerits), would lead to a consolidated government and the abolition of the states, in fact if not in name. Brutus acknowledges that “although the government reported by the convention does not go to a perfect and entire consolidation, yet it approaches so near to it, that it must, if executed,
16 Ibid., p. 209.
17 Ibid., p. 39.
18 Ibid., p. 40.
19 Ibid., p. 235; cf. Pennsylvania Minority, p. 213.
8
certainly and infallibly terminate in it.”20 The Federal Farmer,21 Pennsylvania Minority, and Agrippa agree. Brutus goes further, arguing that such is the very object of the Constitution itself. The preamble of the Constitution established the United States as “a union of the people…considered as one body” and does not secure the existence of the state governments.22 Its stated purpose is “To form a more perfect union” but a more perfect union of this kind would necessitate the abolition of “all inferior governments, and to give the general one compleat legislative, executive and judicial powers to every purpose.”23 So too with its professed purposes of establishing justice and ensuring domestic tranquillity. The Pennsylvania Minority echo this argument, pointing out that “We the people of the United States” is “the style of a compact between individuals entering into a state of society, and not that of a confederation of states.”24
The Pennsylvania Minority conclude that “consolidation pervades the whole constitution”25 and Brutus agrees that the declared intention of the preamble “proceeds in the different parts”26 of the Constitution. A very important issue to the Anti-Federalists, relating to the size and diversity of the United States, were “full and equal representation of the people in the legislature, and the jury trial of the vicinage in the administration of justice.”27 The Federal Farmer defines full and equal representation as
that which possesses the same interests, feelings, opinions, and views the people themselves would were they all assembled – a fair representation, therefore, should be so regulated, that every order of men in the community, according to the common course of elections, can have a share in it – in order to allow professional men, merchants, traders,
20 Ibid., p. 110.
21 Ibid., p. 37.
22 Ibid., p. 170.
23 Ibid.
24 Ibid., p. 213.
25 Ibid.
26 Ibid., p. 170.
27 Ibid., p. 39. 9
farmers, mechanics, etc. to bring a just proportion of their best informed men respectively into the legislature, the representation must be considerably numerous.28
The number of legislators allotted to the House of Representatives and the Senate was far too few to effect full and equal representation. In an era without the automobile or the train, this deficiency was aggravated by the extensive territory of the United States; “it would be impossible to collect a representation of the parts of the country five, six, and seven hundred miles from the seat of government”29; only the wealthy would be able to afford being elected. But, as I have previously noted, full and equal representation is precisely what the framers of the Constitution did not want. A jury trial of the vicinage, or vicinity, meant a jury trial of your peers from the nearby area in which you lived. The Anti-Federalists were afraid that this vital tradition would be obviated by the single supreme judiciary under the new Constitution, even with its inferior courts.30
Brutus argues that the general welfare clause in Section 8 of Article 1 grants Congress the authority to do anything “which in their judgment will tend to provide for the general welfare, and this amounts to the same thing as general and unlimited powers of legislation in all cases.”31 The Federal Farmer agrees that the powers lodged in the general government under the new Constitution are “very extensive powers – powers nearly, if not altogether, complete and unlimited, over the purse and the sword.”32 Brutus fears, however, that:
In a republic of such vast extent as the United States, the legislature cannot attend to the various concerns and wants of its different parts. It cannot be sufficiently numerous to be acquainted with the local condition and wants
28 Ibid.
29 Ibid.
30 See “Letter of The Federal Farmer,” p 40.
31 Ibid., p. 170.
32 Ibid., p. 41. 10
of the different districts, and if it could, it is impossible it should have sufficient time to attend to and provide for all the variety of cases of this nature, that would be continually arising.
In so extensive a republic, the great officers of government would soon become above the controul of the people, and abuse their power to the purpose of aggrandizing themselves, and oppressing them. The trust committed to the executive offices, in a country of the extent of the United States, must be various and of magnitude. The command of all the troops and navy of the republic, the appointment of officers, the power of pardoning offences, the collecting of all the public revenues, and the power of expending them, with a number of other powers, must be lodged and exercised in every state, in the hands of a few. When these are attended with great honor and emolument, as they will be in large states, so as greatly to interest men to pursue them, and to be proper objects for ambitious and designing men, such men will be ever restless in their pursuit after them. They will use the power, when they have acquired it, to the purposes of gratifying their own interest and ambition, and it is scarcely possible, in a very large republic, to call them to account for their misconduct, or to prevent their abuse of power.33
Something like this has indeed come to pass in the United States and, although the potential power of the executive branch was one to be feared, the Anti-Federalists were far more concerned at the moment with the consolidating powers of the legislative and judicial branches.
Among the powers of Congress that most disturbed the Anti-Federalists were its powers of internal taxation, its expansive power to maintain a standing army and regulate militias, its powers to regulate commerce and trade, and its treaty-making power. All of these would tend toward a consolidation of power in the national government. Internal taxation was disliked by the American people in general and the first two together, internal taxation and the power over the military, left room for an alarming degree of discretionary power. The two year limit on appropriations would hardly prevent Congress from simply renewing them every two years. In light of the discussion on Shays’s
33 Ibid., p. 116. 11
Rebellion, it is interesting to point out that the Constitution gave the national government the power not merely to repel invasions but also to suppress insurrections. Such a provision could be used to prevent secession or rebellion, by states or within states, be it just or unjust. Standing armies were widely recognized by Federalists and Anti-Federalists alike as a bane to free republics; they are a tool of repression and a vehicle for conformity and uniformity, of social engineering. Anti-federalists were also afraid that the concurrent powers of taxation, held by both the national and state governments, would eventually lead to the national government crowding the state governments out and depriving them of revenue. With power over commerce and trade and over the making of treaties, and with the laws and treaties passed and ratified by Congress as the supreme law of the land, there was also the danger that the national government could by way of these whittle away at the sovereignty of the several states. These fears too have to a great extent been realized, albeit largely a century after the Constitution was ratified.
The judiciary was also seen as a major feature of the Constitution that would tend to abolish the state governments or at least greatly emasculate them. Brutus complains that the power of judging the constitutionality of the laws is best left up to the people, who can decide to whether or not to re-elect legislators. Instead, in the Constitution, the unelected Supreme Court is given the sole authority of judging the constitutionality of the laws, and neither the “people, nor state legislatures, nor the general legislature can remove [the Supreme Court Justices] or reverse their decrees.”34 He also was concerned that the national judiciary would contribute to the “entire subversion of the legislative, executive and judicial powers of the individual states.”35 This would be accomplished
34 Ibid., pp. 186-187..
35 Ibid., p. 165. 12
through its original jurisdiction in cases between states and between states and citizens of other states, and through its appellate jurisdiction and its power to judge the constitutionality of state laws. As a final indignity in the eyes of the Anti-Federalists, the nail in the coffin so to speak, Articles Six of the Constitution stipulates: “The senators and representatives before-mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States, and of the several states, shall be bound, by oath or affirmation, to support this constitution.” Brutus exclaims: “It is therefore not only necessarily implied thereby, but positively expressed, that the different state constitutions are repealed and entirely done away, so far as they are inconsistent with this, with the laws which shall be made in pursuance thereof, or with treaties made, or which shall be made, under the authority of the United States[.]”36
Over two centuries after the ratification of the Constitution, many of the fears of the Anti-Federalists have been realized, though not necessarily in the way that they or even the Federalists would have expected. It is also true that most of these transformations took place over a century after they wrote. It is my opinion that the Bill of Rights and the tradition of republicanism and liberty prevailing among the people helped to slow this process down. Ultimately, the greatest instances of consolidation into the hands of the national government (and the executive in particular) has occurred during times of crisis, such as the Civil War, the Great Depression, and World Wars I & II.37 The seeds were sown in the Constitution, however. And the road was embarked upon right in the beginning. Alexander Hamilton sought, as Secretary of the Treasury, and succeeded in, tying the interests of wealthy and well-born to the national government by
36 Ibid., p. 121. 13
14
consolidating the debts of all the states into the hands of the national government and paying off the notes at face value, thus enriching the wealthy speculators such as those in Massachusetts. He rightly recognized that the wealthy were a threat to any government that got in their way, but with political connections and the expansive power of the new government at their disposal they would also prove to be a threat to liberty.38 The Massachusetts towns that produced Shays’s Rebellion had much in common with the Anti-Federalists. Most of the former voted against the new Constitution. Both distrusted a powerful, unrepresentative government in the hands of a wealthy and aristocratic elite.
37 For details, see Robert Higgs, Crisis and Leviathan: Critical Episodes in the Growth of American Government (New York: Oxford University Press, 1987).
38 Richards, pp. 152-158.
The Constitutional Thought of the Anti-
Federalists
Murray Dry, Middlebury College
Although they claimed to be the true federalists and the true
republicans, the men who opposed the Constitution's
unconditional ratification in 1787-1788 were called Anti-
Federalists. The leading opponents from the major states included
Patrick Henry, George Mason, and Richard Henry Lee from
Virginia, George Clinton, Robert Yates, and Melanchton Smith
from New York, John Winthrop' and Elbridge Gerry from
Massachusetts and Robert Whitehill, William Findley, and John
Smilie from Pennsylvania. They all agreed that the document
produced by the Convention in Philadelphia was unacceptable
without some amendments. Since most state constitutions contained bills of rights, the need
for a similar feature for the national constitution formed the Anti-Federalists' most effective
argument against unconditional ratification. The national Bill of Rights is the result of that
dialogue.
Nevertheless, the Anti-Federalists' major contribution to the Amer can founding lay more in
their critical examination of the new form of federalism and the new form of republican
government than in their successful campaign for a bill of rights. The Anti-Federalists sought
substantial restrictions on federal power, which the amendments subsequently adopted did not
provide. Suspicious of a strong national government, these opponents nevertheless failed to
agree on an alternative constitutional arrangement. Still, the legacy of the Anti-Federalists
persists in our constitutional debates over federalism and republican government.
Anti-Federal constitutionalism finds its most thoughtful and comprehensive expression in the
Letters of the Federal Fann and the Essays of Brutus, attributed to Richard Henry Lee and
Robert Yates, respectively. Although authorship remains uncertain, these writers covered all
major constitutional questions in a manner that required, and received, the attention of
"Publius," the penname adopted by Alexander Hamilton, James Madison, and John Jay,
authors of the famous Federalist papers.
This essay will discuss Anti-Federal constitutionalism in three parts: federalism; the separation
of powers; and the bill of rights.
Republican Government and Federalism The Anti-Federalists claimed to be the
true federalists because they were the true republicans. Consequently, we begin with their
account of republican government and its relation to federalism.
The Anti-Federalists believed that to maintain the spirit of republican government, which was
the best defense against tyranny, individuals needed to know one another, be familiar with
their governments, and have some direct experience in government. Only then would the
citizenry possess a genuine love of country, which is the essence of republican, or civic, virtue.
The Anti-Federalists espoused the then traditional view of republican government, reflected in
the first state constitutions, which emphasized the legislative branch of government. With the
first federal constitution, the Articles of Confederation, the states, through their legislatures,
retained effective control of federal men and federal measures. The delegates to Congress
were chosen by the state legislatures and were subject to being recalled. The federal power to
raise taxes and armies not only required a vote of nine states, but, even after such a vote, it
ABOUT THE
AUTHOR
Murray Dry, is professor
of political science at
Middlebury College. He can
be reached via email at
murray.p.dry@
mail.middlebury.edu
depended on state requisitions, which meant that the federal government depended on the
good will of the states to execute the law.
In stark contrast, the Constitution proposed by the Federal Convention in 1787 provided the
basis for a strong national government. Elections to the House of Representatives were by the
people directly, not the states, and the federal powers over taxes and the raising of armies
were completely independent dent of the state governments. This new form of federalism
necessarily produced a new form of republicanism, the "large republic." Furthermore, Publius
did not shrink from providing a positive argument in support of it." Federalist 10 justified the
new form of republicanism, not only as the price of union but as the republican remedy to the
disease of majority faction, or majority tyranny.
Because the Federalists saw a major danger not from the aggrandizing of the ruling few, but
from the tyranny of the majority, they sought to restrain the influence of that majority in
order to secure individual rights and the permanent and aggregate interests of the
community. Such restraint was to be achieved through a large extended sphere, i.e. the
constituencies of the federal government. These would be larger and more diverse than the
constituencies of the states, and so would make majority tyranny more difficult, since more
negotiation and compromise would be needed for any single faction to become part of a
majority. In addition, the increased competition for office would produce better
representatives and a more effective administration throughout the government.
Perhaps because he took republican government for granted, as a given in America, Publius
understood it to require only that offices of government be filled directly or indirectly by
popular vote. Furthermore, the representation of the people was satisfied by the fact of
election, regardless of the contrast between the wealth and influence of the elected and the
electorate.
To the Anti-Federalists, the people would not be free for long if all they could do was vote for a
representative whom they would not know and who would be very different from them.
Because the Anti-Federalists emphasized participation in government, they argued that a
small territory and a basically homogeneous population were necessary for a notion of the
"public good" to be agreed upon. The Anti- Federalists did not insist that every citizen exercise
legislative power. But they did emphasize representation of the people in the legislatures and
on juries. By "representation" they meant that the number of people in a legislative district
must be small enough and the number of districts large enough so that the citizens will know
the people they are voting for and be able to elect one of their own-one of the "middling
class." This latter phrase referred to the large number of farmers of modest means. A
substantial representation of this agricultural middle class was possible even in the large
states and necessary for the character of the governors to reflect the governed. Under the
proposed constitution, argued the Anti-Federalists, this kind of representation would be
impossible at the federal level, where the districts would contain at least 30,000 people.
Likewise, by participating in local jury trials, in civil as well as criminal cases, the people in
their states acquired a knowledge of the laws and the operation of government, and thereby,
argued the Anti-Federalists, they become more responsible citizens. It was feared that this
responsibility would be lost when cases were appealed to the proposed national supreme
court, which had jurisdiction on appeal over all questions of law and fact.
Since the Anti-Federalists believed that republican government was possible in the states but
not in one single government for the entire country, only a confederacy, that is, a federal
republic, could safeguard the nation's freedom. They understood such a form of government
to have a limited purpose, primarily common defense. Hence, those who became Anti-
Federalists originally favored limited amendments to the Articles of Confederation, rather than
an entirely new constitution. When a new constitution became inevitable, they hoped to limit
the transfer of political power from the states to the national government. They claimed to be
the true republicans and the true federalists because they understood republican government
to require a closely knit people attached to their government. They sought to grant only so
much power to the federal government as was absolutely necessary to provide for defense. In
this way, the distribution of governmental power, as between the nation and the states, would
correspond to the distribution of representation. And while the Anti-Federalists did argue for
an increase in the federal representation, that by itself would not have satisfied the
requirement of republican government, as they saw it, since the people would always be more
substantially represented in their state governments. According to the Anti-Federalists, the
Federalists were not federalists but consolidationists; and the ultimate effect of the
Constitution would be to reduce the states to mere administrative units, thereby eliminating
republican liberty.
Federalism and the Constitution: The Legislative Powers Already fearful of
the Constitution's threat to republican liberty, the Anti- Federalists vehemently objected to the
large number of specific powers granted to Congress, especially the taxing power and the
power to raise armies. They found the undefined grants of power in the "necessary and
proper" and the "supremacy" clauses (1,8,18 and VI,2) alarming as well. The government,
Brutus claimed, "so far as it extends, is a complete one, and not a confederation," and "all
that is reserved to the states must very soon be annihilated, except so far as they are barely
necessary to the organization of the general government." With the power to tax virtually
unchecked, Brutus lamented that "the idea of confederation is totally lost, and that of one
entire republic is embraced." The Anti-Federalists attempted to draw a line between federal
and state powers, conceding to the federal government only those powers which were
necessary for security and defense. Their most common tax proposal would have limited the
federal government to a tax on foreign imports, leaving internal taxes, both on individuals and
on commodities, to the states. This limitation would guarantee the states a source of revenue
out of reach of the national government. If this federal tax source proved insufficient, the
AntiFederalists proposed turning to the states for requisitions, as was the case under the
Articles of Confederation.
Brutus warned, as well, that the power "to raise and support armies at pleasure . tend[s] not
only to a consolidation of the government, but the destruction of liberty." The Anti-Federalists
generally took the position that there should be no standing armies in time of peace. Brutus
proposed a limited power to raise armies to defend frontier posts and guard arsenals to
respond to threats of attack or invasion. Otherwise, he maintained, standing armies should
only be raised on the vote of two-thirds of both houses.
Publius' rejection of this position was complete and uncompromising. The "radical vice" of the
Confederation had been precisely the dependence of the federal power on the states. The
universal axiom that the means must be proportional to the end required that the national
government's powers be adequate to the preservation of the union. (Federalist 15,23)
The Separation of Powers and Republican Government The separation of
powers refers primarily to the division of power among the legislative, executive, and judicial
branches of government, but it also includes bicameralism, or the division of the legislature
into a house of representatives and a senate. In this part, we begin with the Anti-Federalists'
general approach to the separation of powers, which will be followed by accounts of their
views on the senate, the presidency, and the judiciary.
The Anti-Federalists attacked the Constitution's separation of powers from two different
perspectives. Some, such as Centinel (a Pennsylvania Anti-Federalist), alleged that there was
too much mixing and not enough separation; others, like Patrick Henry and the Maryland
Farmer, asserted that there were no genuine "checks" at all. The first position opposed the
special powers given to the senate and the executive. The second argued that a true
separation of powers depended upon social divisions not available in the United States, such
as an hereditary nobility as distinct from the common people. The English Constitution drew
on such divisions; social class checked social class in a bicameral legislature, and each was
checked, in turn, by an hereditary monarch. While the Federalists celebrated the filling of all
offices by election directly or indirectly, some Anti-Federalists, including Patrick Henry, argued
that such elections would result in the domination of the natural, or elected, aristocracy in all
branches of government, not a true "checks and balances" system.
The Senate The Anti-Federalists feared that an aristocracy would emerge from the senate,
taking more than its share of power. A small number of individuals, elected by the state
legislatures for six years, and eligible for reelection, shared in the appointment and treatymaking
powers with the executive, as well as in the law-making process with the house of
representatives. In order to prevent senators from becoming an entrenched aristocracy, the
Anti- Federalists favored an amendment requiring rotation in office and permitting recall votes
by the state legislatures. They also favored a separately elected executive council, which
would have relieved the senate of its share in the appointment power. None of these proposals
was adopted.
The Executive Anti-Federal opposition to the office of president was surprisingly limited.
While Patrick Henry asserted that the constitution "squints toward monarchy," most of the
Anti-Federalists accepted the unitary office and the "electoral college" mode of election.
The eligibility of the president to run repeatedly for office, however, did provoke substantial
opposition, as did the absence of a special executive council, which would have shared the
appointment power. Whereas Publius had argued that re-eligibility provides a constructive use
for ambition, Federal Farmer replied that once elected a man will spend all his time and
exercise all his influence to stay in office. The executive council would have weakened the
power of the Senate, which concerned the AntiFederalists even more than the president's
power.
No Anti-Federalist expressed concern about the general phrase "the executive power," perhaps
because it was unclear whether this was a grant of power or merely the name of the office.
Some questioned the "commander-in-chief' clause, the pardoning power, and the authority to
call either of both houses into special session. But in light of the difficulties of governing
without an independent executive, which the country experienced under the Articles of
Confederation, and the common expectation that George Washington would become the first
president, the Anti-Federalists let their objections go.
The Judiciary While many Anti-Federalists failed to discuss it, Brutus' account of the
judicial power anticipated the full development of judicial review as well as the importance of
the judicial branch as a vehicle for the development of the federal government's powers, both
of which he opposed. By extending the judicial power "to all cases, in. law and equity, arising
under this Constitution," Article III permitted the courts "to give the constitution a legal
construction." Moreover, extending the judicial power to equity as well as law (a division made
originally in English law) gave the courts power "to explain the consti tution according to the
reasoning spirit of it, without being confined to the words or letter." Hence, Brutus concluded
that "the real effect of this system will therefore be brought home to the feelings of the people
through the medium of the judicial power."
Under the judicial power, the courts would be able to expand powers of the legislature and
interpret laws in a way Congress did not intend. Brutus interpreted the grant of judicial power
to all cases arising under the Constitution as a grant of "judicial review." He opposed this
grant, because he thought the judges, who were appointed for-life, should leave it to Congress
to interpret the constitutional reach of its powers. That way, if Congress mis interpreted the
Constitution by overextending its powers, the people could repair the damages at the next
election. Brutus approved of the framers' decision, following the English Constitution, to make
the judges independent by providing them with a lifetime appointment, subject to
impeachment, and fixed salaries. But he pointed out that the English judges were nonetheless
subject to revision by the House of Lords, on appeal, and to revision, in their interpretation of
the constitution, by Parliament. Extending the judicial power to the American Constitution
meant that there would be no appeal beyond the independent non-elected judiciary. Brutus
did not think that impeachment for high crimes and misdemeanors would become an effective
check, and while he did not mention it, he doubtless would have regarded the amendment
process also as unsatisfactory.
Anti-Federalists including Brutus objected as well to the extensive appellate jurisdiction of the
supreme court. Article III section 2 may have guaranteed a jury trial in criminal cases, but on
appeal, the fate of the defendant would be up to the judges. The Anti-Federalists wanted to
have the right of jury trials extended to civil cases and to have the results protected against
appellate reconsideration.
Finally, Brutus objected to the "Madisonian compromise," which authorized, but did not
require, Congress to "ordain and establish" lower courts. Except for the limited grant of
original jurisdiction in the supreme court, judicial power, the Anti-Federalists argued, should
have been left to originate in the state courts.
The Bill of Rights The Anti-Federalists are best known for the Bill of Rights, since the
Constitution would not have been ratified without the promise to add it. But the Bill of Rights
was as much a Federalist as an Anti-Federalist achievement. The Anti-Federalists wanted a bill
of rights to curb the power of the national government to intrude upon state power; the Bill of
Rights, as adopted, did not address this question. Instead, it limited the right of government
to interfere with individuals, and, as such, included provisions similar to those in the bills of
rights in many of the state constitutions.
When the Federalists denied the necessity of a federal bill of rights, on the grounds that
whatever power was not enumerated could not be claimed, the Anti-Federalists pointed to the
Constitution's supremacy and to the extensiveness of the enumerated powers to argue that
there were no effective limitations on federal authority with respect to the states. None of the
actual amendments, which were written up and guided through the House by Madison,
followed the Anti-Federal proposals to restrict federal powers, especially the tax and war
powers. As for what became the tenth amendment, Madison himself said that it simply
clarified the existing enumeration of powers but changed nothing. Furthermore, when an Anti-
Federalist tried to get the adverb "expressly" inserted before "delegated" in the amendment-
"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"-his motion failed by a
substantive margin.
The Anti-Federalists' demand for a bill of rights derived from their understanding of republican
government. Such a form of government was mild in its operation and a public proclamation
of their rights kept the people aware of them. Consequently, the Bill of Rights, even in its
Federalist form, reflects Anti-Federal constitutionalism. But the amendments did not restrict
the major federal powers, over taxes, commerce, and war, or in any way limit implied powers.
Furthermore, as Jefferson noted, in a letter he wrote to Madison in 1789, by emphasizing
individual rights, the Bill of Rights put a legal check in the hands of the judiciary. In other
words, before he opposed the power of judicial review, Jefferson seemed to take its existence
for granted. He argued that writing a bill of rights into the Constitution would provide judicial
protection of those rights. Neither Jefferson nor the Anti- Federalists seemed to realize how a
federal bill of rights, by strengthening the federal courts, would thus serve to strengthen
Federalist constitutionalism.
Conclusion The Anti-Federalists lost the ratification debate because they failed to present a
clear and convincing account of a constitutional plan that stood between the Articles of
Confederation, which they acknowledged was unable to provide for the requirements of union,
and the Constitution proposed by the Federal Convention, which they feared would produce a
consolidation of power. And yet the periodic and contemporary constitutional debates over
federalism, over the extent of legislative and executive power, and over individual rights and
judicial review reflect the different conceptions of republican government that were developed
in the founding dialogue over the Consituation.
Any strict construction of federal power has much in common with Anti- Federalist
constitutionalism. During the founding debate, opponents of a strong national government
wanted to amend the Constitution; after ratification, Anti-Federalists had no choice but to
interpret the Constitution to require limited federal government. The contemporary
controversies over abortion, pornography, and sexual practices among consenting adults, and
the issues surrounding the religion clauses of the First Amendment reveal disagreements over
the scope of individual rights, on the one hand, and the legitimacy of government
maintenance of community manners and morals on the other. These controversies resemble
the founding debate over republican licanism, where the Federalists focused on the security of
individual rights and the Anti-Federalists expressed a greater concern for the character of
republican citizenship, maintained in part through religion. Through such debates, Anti-Federal
constitutionalism, as applied to governmental structure and to moral qualities necessary for
free government, thus remains an important part of our constitutional polity.
Suggested Additional Readings: Herbert J. Storing, What the Anti-Federalists were for (1981).
Herbert J. Storing (with Murray Dy), The Anti-Federalist (1985).
Murray Dry, "The Case Against Ratification: Anti-Federalist Constitutional Thought," in Dennis
Mahoney, ed., Essays on the Ratification of Congress(1987).
Gordon Wood, The Creation of the American Republic, 1776- 1787(1969).
Copyright 1985 by the American Political Science Association and American Historical
Asssociation. This essay may be photocopied if attributed as follows: "Reprinted from this
Constitution: A Bicentennial Chronicle, Fall 1985, published by Project '87 of the American
Political Science Association and American Historical Asssociation. For further information on
APSA copyrights contact APSA at apsa@apsanet.org by phone at (202) 483-2512 or Fax (202)
483-2657.
Northern California River Watch v, Wilcox , No. 08-15780,(August 25, 2010)(Dorothy W. Nelson, William A. Fletcher, and Richard A. Paez, Circuit Judges).
SUMMARY:
Robert Evans and Northern California River Watch (“River Watch”) appeal the district court's grant of summary judgment to the Schellinger defendants and three employees of the California Department of Fish and Game (collectively “Defendants”). River Watch contends that Defendants violated the Endangered Species Act (“ESA”), codified at 16 U.S.C. § 1531 et seq. Specifically, River Watch argues that Defendants dug up and removed the endangered plant species, Sebastopol meadowfoam (Limnanthes vinculans) and, therefore, violated § 9 of the ESA, which makes it unlawful for anyone to “take” a listed plant on areas under federal jurisdiction. See 16 U.S.C. § 1538(a)(2)(B).
The district court granted Defendants' motion for summary judgment, concluding that River Watch could not establish, as a matter of law, that the areas in which the Sebastopol meadowfoam plants were growing were “areas under Federal jurisdiction.” On appeal, we consider the meaning of the term “areas under Federal jurisdiction” as used in ESA § 9. River Watch argues that the term encompasses privately-owned wetlands adjacent to navigable waters that have been designated as “waters of the United States” by the Army Corps of Engineers. The United States, representing the interests of the Department of the Interior's Fish and Wildlife Service as amicus curiae, argues that § 9 is ambiguous, that we must apply the deference principles set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Counsel, Inc. , 467 U.S. 837 (1984), and that under Chevron the privately-owned land at issue in this case is not an “area under Federal jurisdiction.”
Although we agree that the term “areas under Federal jurisdiction” is ambiguous, we are not convinced that the U.S. Fish and Wildlife Service (“FWS”), the agency with rule making authority, has interpreted the term. Nonetheless, for the reasons set forth in this opinion, we hold that “areas under Federal jurisdiction” does not include the privately-owned land at issue here. We therefore agree with the district court's ultimate legal conclusion in this case and affirm the grant of summary judgment to Defendants. EXCERPT RE: JUDICIAL CONSTRUCTION OF SECTION 9(a)(2)(B):
Without any agency interpretation of “areas under Federal jurisdiction” to which we must defer, we proceed to interpret the term. We agree with the district court that River Watch's proposed construction of § 9(a)(2)(B) is not tenable. The potential for overbreadth posed by interpreting “areas under Federal jurisdiction” as including all “waters of the United States” is simply too large...
...We hold that River Watch has not established that the plain language of the ESA mandates that “waters of the United States” are “areas under Federal jurisdiction.” We agree with the United States that the term is ambiguous, but we conclude that, thus far, the FWS has not promulgated regulations or offered any guidance materials specifically addressing this issue to which we must defer. We thus interpret “areas under Federal jurisdiction” as not including all of the “waters of the United States” as defined by the CWA and its regulations. Although our ruling will constitute “binding law,” we recognize that under Brand X Internet Servs ., 545 U.S. 967, 986 (2005)., we are not the “authoritative interpreter” of “areas under Federal jurisdiction.” See 545 U.S. at 983. The FWS might have good reason to issue regulations or guidance that more thoroughly addresses this issue at some later date, and our decision does not foreclose the possibility that the FWS might adopt some version of the statutory construction set forth by River Watch. See id. After all, the objective of the ESA, to provide a program and means to conserve endangered species and their ecosystems, 16 U.S.C. § 1531(b), is surely intertwined with that of the CWA, “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a).
SELECTED PUBLICATIONS
CERCLA: Convey to a Pauper, Chase & Mixon, Lewis & Clark Journal of Environmental Law, Spring 2003
It's Not an Option: It's a Means for Survival-Are You Making the Connection?, The Houston Defender,
January, 2000
Telecommunications Law in the United States, Comparative Law Yearbook, 2000; Center for International
Legal Studies
Minority Broadcast Ownership and the FCC, Broadcasting and Cable Magazine, 1999
Race, Culture & Contract Law, Connecticut Law Review, Volume 28, Issue 1, Fall 1995
The Lender Liability Paradox: a Fresh Approach, Tulane Environmental Law Journal, Volume 5, Issue 1,
December 1991
Remedying Cercla's Natural Resource Damage Provision: Incorporation of The Public Trust Doctrine into
Natural Resource Damage Actions, Virginia Environmental Law Journal, Volume 2, Issue 3, Spring 1992
Imminent Threat to America's Last Great Wilderness, University of Denver Law Review, Centennial Volume,
Volume 70, Issue 1, Fall 1992
Environmental Racism, Rutgers (Newark) Law Review, Volume 45, Issue 2, March 1993
The U.S. Department of Commerce is extending the disaster declaration for California salmon fishermen because of low numbers of spawning Chinook salmon returns on the Sacramento River.
“Low Chinook salmon returns to the Sacramento River, predicted again this year, are causing significant economic hardship to commercial fishermen and their families in California,” Commerce Secretary Gary Locke said Thursday.
The department first granted a disaster declaration in 2008 for commercial fishermen in California, Oregon and Washington at the request of the governors of the three states, said Jim Milbury, spokesman for the National Marine Fishery Service in California. The department oversees the service. Thursday's declaration is only for California and came after a request by Gov. Arnold Schwarzenegger.
The declaration creates the possibility for federal financial help for businesses affected by drooping salmon returns on the Sacramento, said Zeke Grader, executive director of the Pacific Coast Federation of Fishermen's Associations. Those include seagoing commercial and recreational fishermen, as well as river guides.
“It's welcome, but I wish we didn't have to have it,” he said.
He said there are about 1,000 commercial fishing boats and about 100 charter boats that regularly go after the Sacramento's salmon. The recent low runs caused federal fishery managers to cancel salmon seasons, creating economic turmoil for people dependent on them for their livelihood, Grader said.
In 2008 the federal government gave $200 million of aid to fishermen, he said.
The money was stretched among the three states during the past two years.
Now, if Congress approves it, financial aid will be focused on California. How much money may result is unclear, Grader said.
He said the state's commercial and recreation fisherman who depend on the Sacramento run likely will be out $60 million to $70 million this year because of the low salmon runs.
Last year, federal fishery managers forecast a run of 122,100 adult fish they consider runs between 122,000 to 180,000 a healthy population but only 39,500 returned.
“There are just no fish out there,” Grader said.
1. Operative Clause.
a. “Right of the People.” The first salient feature of
the operative clause is that it codifies a “right of the people.”
The unamended Constitution and the Bill of Rights
use the phrase “right of the people” two other times, in the
First Amendment’s Assembly-and-Petition Clause and in
the Fourth Amendment’s Search-and-Seizure Clause. The
Ninth Amendment uses very similar terminology (“The
enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by
the people”). All three of these instances unambiguously
refer to individual rights, not “collective” rights, or rights
that may be exercised only through participation in some
corporate body.5
in a context other than “rights”—the famous preamble
(“We the people”), §2 of Article I (providing that “the people”
will choose members of the House), and the Tenth
Amendment (providing that those powers not given the
Federal Government remain with “the States” or “the
people”). Those provisions arguably refer to “the people”
acting collectively—but they deal with the exercise or
reservation of powers, not rights. Nowhere else in the
Constitution does a “right” attributed to “the people” refer
to anything other than an individual right.6
What is more, in all six other provisions of the Constitution
that mention “the people,” the term unambiguously
refers to all members of the political community, not an
unspecified subset. As we said in United States v. Verdugo-
Urquidez, 494 U. S. 259, 265 (1990):
"the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the People of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1, ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble"); Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States ") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U. S. 279 , 194 U. S. 292 (1904) (Excludable alien is not entitled to First Amendment rights, because "[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law"). The language of these Amendments contrasts with the words
"person" and "accused" used in the Fifth and Sixth Amendments regulating procedure in criminal cases.
What we know of the history of the drafting of the Fourth Amendment also suggests that its purpose was to restrict searches and seizures which might be conducted by the United States in domestic matters. The Framers originally decided not to include a provision like the Fourth Amendment, because they believed the National Government lacked power to conduct searches and seizures. See C. Warren, The Making of the Constitution 508-509 (1928); The Federalist No. 84, p. 513 (C. Rossiter ed. 1961) (A. Hamilton); 1 Annals of Cong. 437 (1789) (statement of J. Madison). Many disputed the original view that the Federal Government possessed only narrow delegated powers over domestic affairs, however, and ultimately felt an Amendment prohibiting unreasonable searches and seizures was necessary. Madison, for example, argued that
"there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all of the powers vested in the Government of the United States,"
and that general warrants might be considered "necessary" for the purpose of collecting revenue. Id. at 438. The driving force behind the adoption of the Amendment, as suggested by Madison's advocacy, was widespread hostility among the former Colonists to the issuance of writs of assistance empowering revenue officers to search suspected places for smuggled goods, and general search warrants permitting the search of private houses, often to uncover papers that might be used to convict persons of libel. See Boyd v. United States, 116 U. S. 616 , 116 U. S. 625 -626 (1886). The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory.
There is likewise no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters. Only seven years after the ratification of the Amendment, French interference with American commercial vessels engaged in neutral trade triggered what came to be known as the "undeclared war" with France. In an Act to "protect the Commerce of the United States" in 1798, Congress authorized President Adams to
"instruct the commanders of the public armed vessels which are, or which shall be employed in the service of the United States, to subdue, seize and take any armed French vessel, which shall be found within the jurisdictional limits of the United States, or elsewhere, on the high seas."
§ 1 of An Act Further to Protect the Commerce of the United States, Ch. 68, 1 Stat. 578. This public naval force consisted of only 45 vessels, so Congress also gave the President power to grant to the owners of private armed ships and vessels of the United States "special commissions," which would allow them
"the same license and authority for the subduing, seizing and capturing any armed French vessel, and for the recapture of the vessels, goods and effects of the people of the United States, as the public armed vessels of the United States may by law have."
§ 2, 1 Stat. 579; see U.S. Const., Art. I, § 8, cl. 11 (Congress has power to grant letters of marque and reprisal). Under the latter provision, 365 private armed vessels were commissioned before March 1, 1799, see G. Allen, Our Naval War with France 59 (1967); together, these enactments resulted in scores of seizures of foreign vessels under congressional authority. See M. Palmer, Stoddert's War: Naval Operations during the Quasi-War with France 1798-1801, p. 235 (1987). See also An Act further to suspend the Commercial Intercourse between the United States and France, Ch. 2, 1 Stat. 613. Some commanders were held liable by this Court for unlawful seizures because their actions were beyond the scope of the congressional
grant of authority, see, e.g., 6 U. S. 177 -178 (1804); cf. 5 U. S. 31 , (1801) (seizure of neutral ship lawful where American captain had probable cause to believe vessel was French), but it was never suggested that the Fourth Amendment restrained the authority of Congress or of United States agents to conduct operations such as this.
The global view taken by the Court of Appeals of the application of the Constitution is also contrary to this Court's decisions in the Insular Cases, which held that not every constitutional provision applies to governmental activity even where the United States has sovereign power. See, e.g., Balzac v. Porto Rico, 258 U. S. 298 (1922) (Fifth Amendment right to jury trial inapplicable in Puerto Rico); Ocampo v. United States, 234 U. S. 91 (1914) (Sixth Amendment grand jury provision inapplicable in Philippines); Dorr v. United States, 195 U. S. 138 (1904) (jury trial provision inapplicable in Philippines); Hawaii v. Mankichi, 190 U. S. 197 (1903) (provisions on indictment by grand jury and jury trial inapplicable in Hawaii); Downes v. Bidwell, 182 U. S. 244 (1901) (revenue clauses of Constitution inapplicable to Puerto Rico). In Dorr, we declared the general rule that in an unincorporated territory -- one not clearly destined for statehood -- Congress was not required to adopt
"a system of laws which shall include the right of trial by jury, and that the Constitution does not without legislation and of its own force, carry such right to territory so situated. "
195 U.S. at 195 U. S. 149 (emphasis added). Only "fundamental" constitutional rights are guaranteed to inhabitants of those territories. Id. at 148; Balzac, supra, 258 U.S. at 258 U. S. 312 -313; see Examining Board of Engineers, Architects and Surveyors v. Flores de Otero, 426 U. S. 572 , 426 U. S. 599 , n. 30 (1976). If that is true with respect to territories ultimately governed by Congress, respondent's claim that the protections of the Fourth Amendment extend to aliens in foreign nations is even weaker. And certainly, it is not open to us in light of the Insular Cases to endorse the
view that every constitutional provision applies wherever the United States Government exercises its power.
Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States. In Johnson v. Eisentrager, 339 U. S. 763 (1950), the Court held that enemy aliens arrested in China and imprisoned in Germany after World War II could not obtain writs of habeas corpus in our federal courts on the ground that their convictions for war crimes had violated the Fifth Amendment and other constitutional provisions. The Eisentrager opinion acknowledged that in some cases constitutional provisions extend beyond the citizenry; "[t]he alien . . . has been accorded a generous and ascending scale of rights as he increases his identity with our society." Id. at 339 U. S. 770 . But our rejection of extraterritorial application of the Fifth Amendment was emphatic:
"Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. Cf. Downes v. Bidwell, 182 U. S. 244 (1901). None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it."
Id. at 339 U. S. 784 . If such is true of the Fifth Amendment, which speaks in the relatively universal term of "person," it would seem even more true with respect to the Fourth Amendment, which applies only to "the people."
To support his all-encompassing view of the Fourth Amendment, respondent points to language from a plurality opinion in Reid v. Covert, 354 U. S. 1 (1957). Reid involved an attempt by Congress to subject the wives of American servicemen to trial by military tribunals without the protection of the Fifth and Sixth Amendments. The Court held that it was unconstitutional to apply the Uniform Code of Military
Justice to the trials of the American women for capital crimes. Four Justices "reject[ed] the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights." Id. at 354 U. S. 5 (emphasis added). The plurality went on to say:
"The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land."
Id. at 354 U. S. 5 -6 (emphasis added; footnote omitted). Respondent urges that we interpret this discussion to mean that federal officials are constrained by the Fourth Amendment wherever and against whomever they act. But the holding of Reid stands for no such sweeping proposition: it decided that United States citizens stationed abroad could invoke the protection of the Fifth and Sixth Amendments. The concurring opinions by Justices Frankfurter and Harlan in Reid resolved the case on much narrower grounds than the plurality and declined even to hold that United States citizens were entitled to the full range of constitutional protections in all overseas criminal prosecutions. See id. at 354 U. S. 75 (Harlan, J., concurring in result) ("I agree with my brother FRANKFURTER that . . . we have before us a question analogous, ultimately, to issues of due process; one can say, in fact, that the question of which specific safeguards of the Constitution are appropriately to be applied in a particular context overseas can be reduced to the issue of what process is due' a defendant in the particular circumstances of a particular case"). Since respondent is not a United States citizen, he can derive no comfort from the Reid holding.
Verdugo-Urquidez also relies on a series of cases in which we have held that aliens enjoy certain constitutional rights.
See, e.g., Plyler v. Doe, 457 U. S. 202 , 457 U. S. 211 -212 (1982) (illegal aliens protected by Equal Protection Clause); Kwong Hai Chew v. Colding, 344 U. S. 590 , 344 U. S. 596 (1953) (resident alien is a "person" within the meaning of the Fifth Amendment); Bridges v. Wixon, 326 U. S. 135 , 326 U. S. 148 (1945) (resident aliens have First Amendment rights); Russian Volunteer Fleet v. United States, 282 U. S. 481 (1931) (Just Compensation Clause of Fifth Amendment); Wong Wing v. United States, 163 U. S. 228 , 163 U. S. 238 (1896) (resident aliens entitled to Fifth and Sixth Amendment rights); Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 369 (1886) (Fourteenth Amendment protects resident aliens). These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country. See, e.g., Plyler, supra, 457 U.S. at 457 U. S. 212 (The provisions of the Fourteenth Amendment " are universal in their application, to all persons within the territorial jurisdiction. . . . '") (quoting Yick Wo, supra, 118 U.S. at 118 U. S. 369 ); Kwong Hai Chew, supra, 344 U.S. at 344 U. S. 596 , n. 5 ("The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.") (quoting Bridges, supra, 326 U.S. at 326 U. S. 161 (concurring opinion) (emphasis added)). Respondent is an alien who has had no previous significant voluntary connection with the United States, so these cases avail him not.
Justice STEVENS' concurrence in the judgment takes the view that, even though the search took place in Mexico, it is nonetheless governed by the requirements of the Fourth Amendment because respondent was "lawfully present in the United States . . . even though he was brought and held here against his will." Post at 494 U. S. 279 . But this sort of presence -- lawful but involuntary -- is not of the sort to indicate any substantial connection with our country. The extent to which respondent might claim the protection of the Fourth Amendment
if the duration of his stay in the United States were to be prolonged -- by a prison sentence, for example -- we need not decide. When the search of his house in Mexico took place, he had been present in the United States for only a matter of days. We do not think the applicability of the Fourth Amendment to the search of premises in Mexico should turn on the fortuitous circumstance of whether the custodian of its nonresident alien owner had or had not transported him to the United States at the time the search was made.
The Court of Appeals found some support for its holding in our decision in INS v. Lopez-Mendoza, 468 U. S. 1032 (1984), where a majority of Justices assumed that the Fourth Amendment applied to illegal aliens in the United States. We cannot fault the Court of Appeals for placing some reliance on the case, but our decision did not expressly address the proposition gleaned by the court below. The question presented for decision in Lopez-Mendoza was limited to whether the Fourth Amendment's exclusionary rule should be extended to civil deportation proceedings; it did not encompass whether the protections of the Fourth Amendment extend to illegal aliens in this country. The Court often grants certiorari to decide particular legal issues while assuming without deciding the validity of antecedent propositions, compare, e.g., Maine v. Thiboutot, 448 U. S. 1 (1980) (assuming State is a "person" within the meaning of 42 U.S.C. § 1983) with Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989) (State is not a "person"), and such assumptions -- even on jurisdictional issues -- are not binding in future cases that directly raise the questions. Id. at 491 U. S. 63 , n. 4; Hagans v. Levine, 415 U. S. 528 , 415 U. S. 535 , n. 5 (1974). Our statements in Lopez-Mendoza are therefore not dispositive of how the Court would rule on a Fourth Amendment claim by illegal aliens in the United States if such a claim were squarely before us. Even assuming such aliens would be entitled to Fourth Amendment protections, their situation is
different from respondent's. The illegal aliens in Lopez-Mendoza were in the United States voluntarily and presumably had accepted some societal obligations; but respondent had no voluntary connection with this country that might place him among "the people" of the United States.
Respondent also contends that to treat aliens differently from citizens with respect to the Fourth Amendment somehow violates the equal protection component of the Fifth Amendment to the United States Constitution. He relies on Graham v. Richardson, 403 U. S. 365 (1971), and Foley v. Connelie, 435 U. S. 291 (1978), for this proposition. But the very cases previously cited with respect to the protection extended by the Constitution to aliens undermine this claim. They are constitutional decisions of this Court expressly according differing protection to aliens than to citizens, based on our conclusion that the particular provisions in question were not intended to extend to aliens in the same degree as to citizens. Cf. Mathews v. Diaz, 426 U. S. 67 , 426 U. S. 79 -80 (1976) ("In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens").
Not only are history and case law against respondent, but as pointed out in Johnson v. Eisentrager, supra, the result of accepting his claim would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries. The rule adopted by the Court of Appeals would apply not only to law enforcement operations abroad, but also to other foreign policy operations which might result in "searches or seizures." The United States frequently employs armed forces outside this country -- over 200 times in our history -- for the protection of American citizens or national security. Congressional Research Service, Instances of Use of United States Armed Forces Abroad, 1798-1983 (E. Collier ed. 1983). Application of the Fourth Amendment to those circumstances could significantly disrupt the ability of the political
branches to respond to foreign situations involving our national interest. Were respondent to prevail, aliens with no attachment to this country might well bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388 (1971); cf. Tennessee v. Garner, 471 U. S. 1 (1985); Graham v. Connor, 490 U. S. 386 (1989). Perhaps a Bivens action might be unavailable in some or all of these situations due to " special factors counselling hesitation,'" see Chappell v. Wallace, 462 U. S. 296 , 462 U. S. 298 (1983) (quoting Bivens, supra, 403 U.S. at 403 U. S. 396 ), but the Government would still be faced with case-by-case adjudications concerning the availability of such an action. And even were Bivens deemed wholly inapplicable in cases of foreign activity, that would not obviate the problems attending the application of the Fourth Amendment abroad to aliens. The Members of the Executive and Legislative Branches are sworn to uphold the Constitution, and they presumably desire to follow its commands. But the Court of Appeals' global view of its applicability would plunge them into a sea of uncertainty as to what might be reasonable in the way of searches and seizures conducted abroad. Indeed, the Court of Appeals held that absent exigent circumstances, United States agents could not effect a "search or seizure" for law enforcement purposes in a foreign country without first obtaining a warrant -- which would be a dead letter outside the United States -- from a magistrate in this country. Even if no warrant were required, American agents would have to articulate specific facts giving them probable cause to undertake a search or seizure if they wished to comply with the Fourth Amendment as conceived by the Court of Appeals.
We think that the text of the Fourth Amendment, its history, and our cases discussing the application of the Constitution to aliens and extraterritorially require rejection of respondent's claim. At the time of the search, he was a citizen and resident of Mexico with no voluntary attachment to the
United States, and the place searched was located in Mexico. Under these circumstances, the Fourth Amendment has no application.
For better or for worse, we live in a world of nation-states in which our Government must be able to "functio[n] effectively in the company of sovereign nations." Perez v. Brownell, 356 U. S. 44 , 356 U. S. 57 (1958). Some who violate our laws may live outside our borders under a regime quite different from that which obtains in this country. Situations threatening to important American interests may arise half-way around the globe, situations which in the view of the political branches of our Government require an American response with armed force. If there are to be restrictions on searches and seizures which occur incident to such American action, they must be imposed by the political branches through diplomatic understanding, treaty, or legislation.
The judgment of the Court of Appeals is accordingly
Reversed.
Justice KENNEDY, concurring.
I agree that no violation of the Fourth Amendment has occurred and that we must reverse the judgment of the Court of Appeals. Although some explanation of my views is appropriate given the difficulties of this case, I do not believe they depart in fundamental respects from the opinion of the Court, which I join.
In cases involving the extraterritorial application of the Constitution, we have taken care to state whether the person claiming its protection is a citizen, see, e.g., Reid v. Covert, 354 U. S. 1 (1957), or an alien, see, e.g., Johnson v. Eisentrager, 339 U. S. 763 (1950). The distinction between citizens and aliens follows from the undoubted proposition that the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory. We should note, however, that the absence of
this relation does not depend on the idea that only a limited class of persons ratified the instrument that formed our Government. Though it must be beyond dispute that persons outside the United States did not and could not assent to the Constitution, that is quite irrelevant to any construction of the powers conferred or the limitations imposed by it. As Justice Story explained in his Commentaries:
"A government may originate in the voluntary compact or assent of the people of several states, or of a people never before united, and yet when adopted and ratified by them, be no longer a matter resting in compact; but become an executed government or constitution, a fundamental law, and not a mere league. But the difficulty in asserting it to be a compact between the people of each state, and all the people of the other states is, that the constitution itself contains no such expression, and no such designation of parties."
1 J. Story, Commentaries on the Constitution § 365, p. 335 (1833) (footnote omitted). The force of the Constitution is not confined because it was brought into being by certain persons who gave their immediate assent to its terms.
For somewhat similar reasons, I cannot place any weight on the reference to "the people" in the Fourth Amendment as a source of restricting its protections. With respect, I submit these words do not detract from its force or its reach. Given the history of our Nation's concern over warrantless and unreasonable searches, explicit recognition of "the right of the people" to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it. The restrictions that the United States must observe with reference to aliens beyond its territory or jurisdiction depend, as a consequence, on general principles of interpretation, not on an inquiry as to who formed the Constitution or a construction that some rights are mentioned as being those of "the people."
I take it to be correct, as the plurality opinion in Reid v. Covert sets forth, that the Government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic. See 354 U.S. at 354 U. S. 6 . But this principle is only a first step in resolving this case. The question before us then becomes what constitutional standards apply when the Government acts, in reference to an alien, within its sphere of foreign operations. We have not overruled either In re Ross, 140 U. S. 453 (1891), or the so-called Insular Cases ( i.e., Downes v. Bidwell, 182 U. S. 244 (1901); Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v. United States, 195 U. S. 138 (1904); Balzac v. Porto Rico, 258 U. S. 298 (1922)). These authorities, as well as United States v. Curtiss-Wright Export Corp., 299 U. S. 304 , 299 U. S. 318 (1936), stand for the proposition that we must interpret constitutional protections in light of the undoubted power of the United States to take actions to assert its legitimate power and authority abroad. Justice Harlan made this observation in his opinion concurring in the judgment in Reid v. Covert:
"I cannot agree with the suggestion that every provision of the Constitution must always be deemed automatically applicable to American citizens in every part of the world. For Ross and the Insular Cases do stand for an important proposition, one which seems to me a wise and necessary gloss on our Constitution. The proposition is, of course, not that the Constitution 'does not apply' overseas, but that there are provisions in the Constitution which do not necessarily apply in all circumstances in every foreign place. In other words, it seems to me that the basic teaching of Ross and the Insular Cases is that there is no rigid and abstract rule that Congress, as a condition precedent to exercising power over Americans overseas, must exercise it subject to all the guarantees of the Constitution, no matter what the conditions and considerations are that would make adherence to a
specific guarantee altogether impracticable and anomalous."
354 U.S. at 354 U. S. 74 .
The conditions and considerations of this case would.make adherence to the Fourth Amendment's warrant requirement impracticable and anomalous. Just as the Constitution in the Insular Cases did not require Congress to implement all constitutional guarantees in its territories because of their "wholly dissimilar traditions and institutions," the Constitution does not require United States agents to obtain a warrant when searching the foreign home of a nonresident alien. If the search had occurred in a residence within the United States, I have little doubt that the full protections of the Fourth Amendment would apply. But that is not this case. The absence of local judges or magistrates available to issue warrants, the differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad, and the need to cooperate with foreign officials all indicate that the Fourth Amendment's warrant requirement should not apply in Mexico as it does in this country. For this reason, in addition to the other persuasive justifications stated by the Court, I agree that no violation of the Fourth Amendment has occurred in the case before us. The rights of a citizen, as to whom the United States has continuing obligations, are not presented by this case.
I do not mean to imply, and the Court has not decided, that persons in the position of the respondent have no constitutional protection. The United States is prosecuting a foreign national in a court established under Article III, and all of the trial proceedings are governed by the Constitution. All would agree, for instance, that the dictates of the Due Process Clause of the Fifth Amendment protect the defendant. Indeed, as Justice Harlan put it,
"the question of which specific safeguards . . . are appropriately to be applied in a particular context . . . can be reduced to the issue of what process is 'due' a defendant in the particular circumstances of a particular case."
Reid, 354 U.S. at 354 U. S. 75 . Nothing approaching a violation of due process has occurred in this case.
Justice STEVENS, concurring in judgment.
In my opinion aliens who are lawfully present in the United States are among those "people" who are entitled to the protection of the Bill of Rights, including the Fourth Amendment. Respondent is surely such a person even though he was brought and held here against his will. I therefore cannot join the Court's sweeping opinion.{*} I do agree, however, with the Government's submission that the search conducted by the United States agents with the approval and cooperation of the Mexican authorities was not "unreasonable" as that term is used in the first clause of the Amendment. I do not believe the Warrant Clause has any application to searches of noncitizens' homes in foreign jurisdictions because American magistrates have no power to authorize such searches. I therefore concur in the Court's judgment.
* The Court's interesting historical discussion is simply irrelevant to the question whether an alien lawfully within the sovereign territory of the United States is entitled to the protection of our laws. Nor is comment on illegal aliens' entitlement to the protections of the Fourth Amendment necessary to resolve this case.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
Today the Court holds that although foreign nationals must abide by our laws even when in their own countries, our Government need not abide by the Fourth Amendment when it investigates them for violations of our laws. I respectfully dissent.
Particularly in the past decade, our Government has sought, successfully, to hold foreign nationals criminally liable under federal laws for conduct committed entirely beyond the territorial limits of the United States that nevertheless has effects
in this country. Foreign nationals must now take care not to violate our drug laws, [ Footnote 2/1 ] our antitrust laws, [ Footnote 2/2 ] our securities laws, [ Footnote 2/3 ] and a host of other federal criminal statutes. [ Footnote 2/4 ] The
enormous expansion of federal criminal jurisdiction outside our Nation's boundaries has led one commentator to suggest that our country's three largest exports are now "rock music, blue jeans, and United States law." Grundman, The New Imperialism: The Extraterritorial Application of United States Law, 14 Int'l Law. 257, 257 (1980).
The Constitution is the source of Congress' authority to criminalize conduct, whether here or abroad, and of the Executive's authority to investigate and prosecute such conduct. But the same Constitution also prescribes limits on our Government's authority to investigate, prosecute, and punish criminal conduct, whether foreign or domestic. As a plurality of the Court noted in Reid v. Covert, 354 U. S. 1 , 354 U. S. 5 -6 (1957):
"The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution."
(Footnotes omitted.) See also ante at 494 U. S. 277 (KENNEDY, J., concurring) ("[T]he Government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic"). In particular, the Fourth Amendment provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Court today creates an antilogy: the Constitution authorizes our Government to enforce our criminal laws abroad, but when Government agents exercise this authority, the Fourth Amendment does not travel with them. This cannot be. At the very least, the Fourth Amendment is an unavoidable correlative of the Government's power to enforce the criminal law.
A
The Fourth Amendment guarantees the right of "the people" to be free from unreasonable searches and seizures and provides that a warrant shall issue only upon presentation of an oath or affirmation demonstrating probable cause and particularly describing the place to be searched and the persons or things to be seized. According to the majority, the term "the people" refers to "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." Ante at 494 U. S. 265 . The Court admits that "the people" extends beyond the citizenry, but leaves the precise contours of its "sufficient connection" test unclear. At one point the majority hints that aliens are protected by the Fourth Amendment only when they come within the United States and develop "substantial connections" with our country. Ante at 494 U. S. 271 . At other junctures, the Court suggests that an alien's presence in the United States must be voluntary [ Footnote 2/5 ] and that the alien must have "accepted some societal
obligations." [ Footnote 2/6 ] Ante at 494 U. S. 273 . At yet other points, the majority implies that respondent would be protected by the Fourth Amendment if the place searched were in the United States. [ Footnote 2/7 ] Ante at 494 U. S. 266 , 494 U. S. 274 -275.
What the majority ignores, however, is the most obvious connection between Verdugo-Urquidez and the United States: he was investigated and is being prosecuted for violations of United States law and may well spend the rest of his life in a United States prison. The "sufficient connection" is supplied not by Verdugo-Urquidez, but by the Government.
Respondent is entitled to the protections of the Fourth Amendment because our Government, by investigating him and attempting to hold him accountable under United States criminal laws, has treated him as a member of our community for purposes of enforcing our laws. He has become, quite literally, one of the governed. Fundamental fairness and the ideals underlying our Bill of Rights compel the conclusion that when we impose "societal obligations," ante at 494 U. S. 273 , such as the obligation to comply with our criminal laws, on foreign nationals, we in turn are obliged to respect certain correlative rights, among them the Fourth Amendment.
By concluding that respondent is not one of "the people" protected by the Fourth Amendment, the majority disregards basic notions of mutuality. If we expect aliens to obey our laws, aliens should be able to expect that we will obey our Constitution when we investigate, prosecute, and punish them. We have recognized this fundamental principle of mutuality since the time of the Framers. James Madison, universally recognized as the primary architect of the Bill of Rights, emphasized the importance of mutuality when he spoke out against the Alien and Sedition Acts less than a decade after the adoption of the Fourth Amendment:
"[I]t does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that, whilst they actually conform to it, they have no right to its protection. Aliens are no more parties to the laws than they are parties to the Constitution; yet it will not be disputed that, as they owe, on one hand, a temporary obedience, they are entitled, in return, to their protection and advantage."
Madison's Report on the Virginia Resolutions (1800), reprinted in 4 Elliot's Debates 556 (2d ed. 1836).
Mutuality is essential to ensure the fundamental fairness that underlies our Bill of Rights. Foreign nationals investigated and prosecuted for alleged violations of United States criminal laws are just as vulnerable to oppressive government
behavior as are United States citizens investigated and prosecuted for the same alleged violations. Indeed, in a case such as this where the Government claims the existence of an international criminal conspiracy, citizens and foreign nationals may be codefendants, charged under the same statutes for the same conduct and facing the same penalties if convicted. They may have been investigated by the same agents pursuant to the same enforcement authority. When our Government holds these co-defendants to the same standards of conduct, the Fourth Amendment, which protects the citizen from unreasonable searches and seizures, should protect the foreign national as well.
Mutuality also serves to inculcate the values of law and order. By respecting the rights of foreign nationals, we encourage other nations to respect the rights of our citizens. Moreover, as our Nation becomes increasingly concerned about the domestic effects of international crime, we cannot forget that the behavior of our law enforcement agents abroad sends a powerful message about the rule of law to individuals everywhere. As Justice Brandeis warned in Olmstead v. United States, 277 U. S. 438 (1928):
"If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means . . . would bring terrible retribution. Against that pernicious doctrine, this Court should resolutely set its face."
Id. at 277 U. S. 485 (dissenting opinion). This principle is no different when the United States applies its rules of conduct to foreign nationals. If we seek respect for law and order, we must observe these principles ourselves. Lawlessness breeds lawlessness.
Finally, when United States agents conduct unreasonable searches, whether at home or abroad, they disregard our Nation's values. For over 200 years, our country has considered itself the world's foremost protector of liberties. The
privacy and sanctity of the home have been primary tenets of our moral, philosophical, and judicial beliefs. [ Footnote 2/8 ] Our national interest is defined by those values and by the need to preserve our own just institutions. We take pride in our commitment to a government that cannot, on mere whim, break down doors and invade the most personal of places. We exhort other nations to follow our example. How can we explain to others -- and to ourselves -- that these long cherished ideals are suddenly of no consequence when the door being broken belongs to a foreigner?
The majority today brushes aside the principles of mutuality and fundamental fairness that are central to our Nation's constitutional conscience. The Court articulates a "sufficient connection" test but then refuses to discuss the underlying principles upon which any interpretation of that test must rest. I believe that by placing respondent among those governed by federal criminal laws and investigating him for violations of those laws, the Government has made him a part of our community for purposes of the Fourth Amendment.
B
In its effort to establish that respondent does not have sufficient connection to the United States to be considered one of "the people" protected by the Fourth Amendment, the Court relies on the text of the Amendment, historical evidence, and cases refusing to apply certain constitutional provisions outside the United States. None of these, however, justifies the majority's cramped interpretation of the Fourth Amendment's applicability.
The majority looks to various constitutional provisions and suggests that " the people' seems to have been a term of art." Ante at 494 U. S. 265 . But the majority admits that its "textual exegesis is by no means conclusive." Ante at 494 U. S. 265 . [ Footnote 2/9 ] One Member of the majority even states that he "cannot place any weight on the reference to `the people' in the Fourth Amendment as a source of restricting its protections." Ante at 494 U. S. 276 (KENNEDY, J., concurring). The majority suggests a restrictive interpretation of those with "sufficient connection" to this country to be considered among "the people," but the term "the people" is better understood as a rhetorical counterpoint to "the government," such that rights that were reserved to "the people" were to protect all those subject to "the government." Cf. New Jersey v. T.L.0., 469 U. S. 325 , 469 U. S. 335 (1985) ("[T]he Court has long spoken of the Fourth Amendment's strictures as restraints imposed upon `governmental action'"). "The people" are "the governed."
In drafting both the Constitution and the Bill of Rights, the Framers strove to create a form of government decidedly different from their British heritage. Whereas the British Parliament was unconstrained, the Framers intended to create a government of limited powers. See B. Bailyn, The Ideological Origins of the American Revolution 182 (1967); 1 The Complete Anti-Federalist 65 (H. Storing ed. 1981). The colonists considered the British government dangerously omnipotent. After all, the British declaration of rights in
1688 had been enacted not by the people, but by Parliament. The Federalist No. 84, p. 439 (M. Beloff ed. 1987). Americans vehemently attacked the notion that rights were matters of " favor and grace,'" given to the people from the government. B. Bailyn, supra, at 187 (quoting John Dickinson).
Thus, the Framers of the Bill of Rights did not purport to "create" rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be preexisting. See, e.g., U.S. Const., Amdt. 9 ("The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people"). The Fourth Amendment, for example, does not create a new right of security against unreasonable searches and seizures. It states that
"[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ."
The focus of the Fourth Amendment is on what the Government can and cannot do, and how it may act, not on against whom these actions may be taken. Bestowing rights and delineating protected groups would have been inconsistent with the drafters' fundamental conception of a Bill of Rights as a limitation on the Government's conduct with respect to all whom it seeks to govern. It is thus extremely unlikely that the Framers intended the narrow construction of the term "the people" presented today. by the majority.
The drafting history of the Fourth Amendment also does not support the majority's interpretation of "the people." First, the drafters chose not to limit the right against unreasonable searches and seizures in more specific ways. They could have limited the right to "citizens," "freemen," "residents," or "the American people." The conventions called to ratify the Constitution in New York and Virginia, for example, each recommended an amendment stating, "That every freeman has a right to be secure from all unreasonable searches and seizures. . . . " W. Cuddihy, Search and Seizure
in Great Britain and the American Colonies, pt. 2, p. 571, n. 129, 574, n. 134 (1974). But the drafters of the Fourth Amendment rejected this limitation, and instead provided broadly for "[t]he right of the people to be secure in their persons, houses, papers, and effects." Second, historical materials contain no evidence that the drafters intended to limit the availability of the right expressed in the Fourth Amendment. [ Footnote 2/10 ] The Amendment was introduced on the floor of Congress, considered by Committee, debated by the House of Representatives and the Senate, and submitted to the 13 States for approval. Throughout that entire process, no speaker or commentator, pro or con, referred to the term "the people" as a limitation.
The Court also relies on a series of cases dealing with the application of criminal procedural protections outside of the United States to conclude that "not every constitutional provision applies to governmental activity even where the United States has sovereign power." Ante at 494 U. S. 268 . None of these cases, however, purports to read the phrase "the people" as limiting the protections of the Fourth Amendment to those with "sufficient connection" to the United States, and thus none gives content to the majority's analysis. The cases shed no light on the question of whether respondent -- a citizen of a nonenemy nation being tried in a United States federal court -- is one of "the people" protected by the Fourth Amendment.
The majority mischaracterizes Johnson v. Eisentrager, 339 U. S. 763 (1950), as having "rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States." Ante at 494 U. S. 269 . In Johnson, 21 German nationals were convicted of engaging in continued military activity against the United States after the surrender of Germany and before the surrender of Japan in World War II. The Court held that
"the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States."
Johnson, 339 U.S. at 339 U. S. 785 (emphasis added). As the Court wrote:
"It is war that exposes the relative vulnerability of the alien's status. The security and protection enjoyed while the nation of his allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us. . . . But disabilities this country lays upon the alien who becomes also an enemy are imposed temporarily as an incident of war and not as an incident of alienage."
Id. at 339 U. S. 771 -772.
The Court rejected the German nationals' efforts to obtain writs of habeas corpus not because they were foreign nationals, but because they were enemy soldiers.
The Insular Cases, Balzac v. Porto Rico, 258 U. S. 298 (1922), Ocampo v. United States, 234 U. S. 91 (1914), Dorr v. United States, 195 U. S. 138 (1904), and Hawaii v. Mankichi, 190 U. S. 197 (1903), are likewise inapposite. The Insular Cases all concerned whether accused persons enjoyed the protections of certain rights in criminal prosecutions brought by territorial authorities in territorial courts. These cases were limited to their facts long ago, see Reid v. Covert, 354 U. S. 1 , 354 U. S. 14 (1957) (plurality opinion) ("[I]t is our judgment that neither the cases nor their reasoning should be given any further expansion"), and they are of no analytical value when a criminal defendant seeks to invoke the Fourth Amendment in a prosecution by the Federal Government in a federal court. [ Footnote 2/11 ]
C
The majority's rejection of respondent's claim to Fourth Amendment protection is apparently motivated by its fear that application of the Amendment to law enforcement searches against foreign nationals overseas "could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest." Ante at 494 U. S. 273 -274. The majority's doomsday scenario -- that American Armed Forces conducting a mission to protect our national security with no law enforcement objective "would have to articulate specific facts giving them probable cause to undertake a search or seizure," ante at 494 U. S. 274 -- is fanciful. Verdugo-Urquidez is protected by the Fourth Amendment
because our Government, by investigating and prosecuting him, has made him one of "the governed." See supra, at 494 U. S. 284 , 494 U. S. 287 . Accepting respondent as one of "the governed," however, hardly requires the Court to accept enemy aliens in wartime as among "the governed" entitled to invoke the protection of the Fourth Amendment. See Johnson v. Eisentrager, supra.
Moreover, with respect to non-law enforcement activities not directed against enemy aliens in wartime but nevertheless implicating national security, doctrinal exceptions to the general requirements of a warrant and probable cause likely would be applicable more frequently abroad, thus lessening the purported tension between the Fourth Amendment's strictures and the Executive's foreign affairs power. Many situations involving sensitive operations abroad likely would involve exigent circumstances such that the warrant requirement would be excused. Cf. Warden v. Hayden, 387 U. S. 294 , 387 U. S. 298 (1967). Therefore, the Government's conduct would be assessed only under the reasonableness standard, the application of which depends on context. See United States v. Montoya de Hernandez, 473 U. S. 531 , 473 U. S. 537 (1985) ("What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself").
In addition, where the precise contours of a "reasonable" search and seizure are unclear, the Executive Branch will not be "plunge[d] . . . into a sea of uncertainty," ante at 494 U. S. 274 , that will impair materially its ability to conduct foreign affairs. Doctrines such as official immunity have long protected Government agents from any undue chill on the exercise of lawful discretion. See, e.g., Butz v. Economou, 438 U. S. 478 (1978). Similarly, the Court has recognized that there may be certain situations in which the offensive use of constitutional rights should be limited. Cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 , 403 U. S. 396 (1971) (precluding suits for damages for violations of the Fourth Amendment where there are "special factors
counseling hesitation"). In most cases implicating foreign policy concerns in which the reasonableness of an overseas search or seizure is unclear, application of the Fourth Amendment will not interfere with the Executive's traditional prerogative in foreign affairs because a court will have occasion to decide the constitutionality of such a search only if the Executive decides to bring a criminal prosecution and introduce evidence seized abroad. When the Executive decides to conduct a search as part of an ongoing criminal investigation, fails to get a warrant, and then seeks to introduce the fruits of that search at trial, however, the courts must enforce the Constitution.
Because the Fourth Amendment governs the search of respondent's Mexican residences, the District Court properly suppressed the evidence found in that search because the officers conducting the search did not obtain a warrant. [ Footnote 2/12 ] I cannot agree with Justice BLACKMUN and Justice STEVENS that the Warrant Clause has no application to searches
of noncitizens' homes in foreign jurisdictions because American magistrates lack the power to authorize such searches. [ Footnote 2/13 ] See post at 494 U. S. 297 (BLACKMUN, J., dissenting); ante at 494 U. S. 279 (STEVENS, J., concurring in judgment). The Warrant Clause would serve the same primary functions abroad as it does domestically, and I see no reason to distinguish between foreign and domestic searches.
The primary purpose of the warrant requirement is its assurance of neutrality. As Justice Jackson stated for
the Court in Johnson v. United States, 333 U. S. 10 , 333 U. S. 13 -14 (1948) (footnotes omitted):
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent."
See also Welsh v. Wisconsin, 466 U. S. 740 , 466 U. S. 748 -749, and n. 10 (1984); Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 449 (1971). A warrant also defines the scope of a search and limits the discretion of the inspecting officers. See New York v. Burger, 482 U. S. 691 , 482 U. S. 703 (1987); Marron v. United States, 275 U. S. 192 , 275 U. S. 196 (1927). These purposes would be served no less in the foreign than in the domestic context.
The Warrant Clause cannot be ignored simply because Congress has not given any United States magistrate authority to issue search warrants for foreign searches. See Fed. Rule Crim.Proc. 41(a). Congress cannot define the contours of the Constitution. If the Warrant Clause applies, Congress cannot excise the Clause from the Constitution by failing to provide a means for United States agents to obtain a warrant. See Best v. United States, 184 F.2d 131 , 138 (CA1 1950) ("Obviously, Congress may not nullify the guarantees of the Fourth Amendment by the simple expedient of
not empowering any judicial officer to act on an application for a warrant"), cert. denied, 340 U.S. 939 (1951).
Nor is the Warrant Clause inapplicable merely because a warrant from a United States magistrate could not "authorize" a search in a foreign country. Although this may be true as a matter of international law, it is irrelevant to our interpretation of the Fourth Amendment. As a matter of United States constitutional law, a warrant serves the same primary function overseas as it does domestically: it assures that a neutral magistrate has authorized the search and limited its scope. The need to protect those suspected of criminal activity from the unbridled discretion of investigating officers is no less important abroad than at home. [ Footnote 2/14 ]
When our Government conducts a law enforcement search against a foreign national outside of the United States and its territories, it must comply with the Fourth Amendment. Absent exigent circumstances or consent, it must obtain a
search warrant from a United States court. When we tell the world that we expect all people, wherever they may be, to abide by our laws, we cannot in the same breath tell the world that our law enforcement officers need not do the same. Because we cannot expect others to respect our laws until we respect our Constitution, I respectfully dissent.
[ Footnote 2/1 ]
Federal drug enforcement statutes written broadly enough to permit extraterritorial application include laws proscribing the manufacture, distribution, or possession with intent to manufacture or distribute controlled substances on board vessels, see 46 U.S.C.App. § 1903(h) (1982 ed., Supp. V) ("This section is intended to reach acts . . . committed outside the territorial jurisdiction of the United States"), the possession, manufacture, or distribution of a controlled substance for purposes of unlawful importation, see 21 U.S.C. § 959(c) (same), and conspiracy to violate federal narcotics laws, see Chua Han Mow v. United States, 730 F.2d 1308 ,
1311-1312 (CA9 1984) (applying 21 U.S.C. §§ 846 and 963 to conduct by a Malaysian citizen in Malaysia), cert. denied, 470 U. S. 1031 (1985).
[ Footnote 2/2 ]
The Sherman Act defines "person" to include foreign corporations, 15 U.S.C. § 7, and has been applied to certain conduct beyond the territorial limits of the United States by foreign corporations and nationals for at least 45 years. See United States v. Aluminum Co. of America, 148 F.2d 416, 443-444 (CA2 1945).
[ Footnote 2/3 ]
Foreign corporations may be liable under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), for transactions that occur outside the United States if the transactions involve stock registered and listed on a national securities exchange and the alleged conduct is "detrimental to the interests of American investors." Schoenbaum v. Firstbrook, 405 F.2d 200 , 208 (CA2 1968), rev'd on rehearing on other grounds, 405 F.2d 215 (CA2 1968) (en banc), cert. denied, sub nom. Manley v. Schoenbaum, 395 U.S. 906 (1969).
[ Footnote 2/4 ]
See e.g, 18 U.S.C. § 32(b) (violence against an individual aboard or destruction of any "civil aircraft registered in a country other than the United States while such aircraft is in flight"); § 111 (assaulting, resisting, or impeding certain officers or employees); § 115 (influencing, impeding, or retaliating against a federal official by threatening or injuring a family member); §§ 1114, 1117 (murder, attempted murder, and conspiracy to murder certain federal officers and employees); § 1201(a)(5) (kidnaping of federal officers and employees listed in § 1114); § 1201(e) (kidnaping of "an internationally protected person," if the alleged offender is found in the United States, "irrespective of the place where the offense was committed or the nationality of the victim or the alleged offender"); § 1203 (hostage taking outside the United States, if the offender or the person seized is a United States national, if the offender is found in the United States, or if "the governmental organization sought to be compelled is the Government of the United States"); § 1546 (fraud and misuse of visas, permits, and other immigration documents); § 2331 (terrorist acts abroad against United States nationals); 49 U.S. C.App. § 1472(n) (1982 ed. and Supp. V) (aircraft piracy outside the special aircraft jurisdiction of the United States, if the offender is found in the United States). Foreign nationals may also be criminally liable for numerous federal crimes falling within the "special maritime and territorial jurisdiction of the United States," which includes "[a]ny place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States." 18 U.S.C. § 7(7). Finally, broad construction of federal conspiracy statutes may permit prosecution of foreign nationals who have had no direct contact with anyone or anything in the United States. See Ford v. United States, 273 U. S. 593 , 273 U. S. 619 -620 (1927).
[ Footnote 2/5 ]
None of the cases cited by the majority, ante at 494 U. S. 271 , require an alien's connections to the United States to be "voluntary" before the alien can claim the benefits of the Constitution. Indeed, Mathews v. Diaz, 426 U. S. 67 , 426 U. S. 77 (1976), explicitly rejects the notion that an individual's connections to the United States must be voluntary or sustained to qualify for constitutional protection. Furthermore, even if a voluntariness requirement were sensible in cases guaranteeing certain governmental benefits to illegal aliens, e.g., Plyler v. Doe, 457 U. S. 202 (1982) (holding that States cannot deny to illegal aliens the free public education they provide to citizens and legally documented aliens), it is not a sensible requirement when our Government chooses to impose our criminal laws on others.
[ Footnote 2/6 ]
In this discussion, the Court implicitly suggests that the Fourth Amendment may not protect illegal aliens in the United States. Ante at 494 U. S. 273 . Numerous lower courts, however, have held that illegal aliens in the United States are protected by the Fourth Amendment, and not a single lower court has held to the contrary. See, e.g., Benitez-Mendez v. INS, 760 F.2d 907 (CA9 1985); United States v. Rodriguez, 532 F.2d 834 , 838 (CA2 1976); Au YiLau v. INS, 144 U.S.App.D.C. 147, 156, 445 F.2d 217 , 225, cert. denied, 404 U.S. 864 (1971); Yam Sang Kwai v. INS, 133 U.S.App. D.C. 369, 372, 411 F.2d 683 , 686, cert. denied, 396 U.S. 877 (1969).
[ Footnote 2/7 ]
The Fourth Amendment contains no express or implied territorial limitations, and the majority does not hold that the Fourth Amendment is inapplicable to searches outside the United States and its territories. It holds that respondent is not protected by the Fourth Amendment because he is not one of "the people." Indeed, the majority's analysis implies that a foreign national who had "developed sufficient connection with this country to be considered part of [our] community" would be protected by the Fourth Amendment regardless of the location of the search. Certainly nothing in the Court's opinion questions the validity of the rule, accepted by every Court of Appeals to have considered the question, that the Fourth Amendment applies to searches conducted by the United States Government against United States citizens abroad. See, e.g., United States v. Conroy, 589 F.2d 1258 , 1264 (CA5), cert. denied, 444 U.S. 831 (1979); United States v. Rose, 570 F.2d 1358 , 1362 (CA9 1978). A warrantless, unreasonable search and seizure is no less a violation of the Fourth Amendment because it occurs in Mexicali, Mexico, rather than Calexico, California.
[ Footnote 2/8 ]
President John Adams traced the origins of our independence from England to James Otis' impassioned argument in 1761 against the British writs of assistance, which allowed revenue officers to search American homes wherever and whenever they wanted. Otis argued that "[a] man's house is his castle," 2 Works of John Adams 524 (C. Adams ed. 1850), and Adams declared that "[t]hen and there the child Independence was born." 10 Works of John Adams 248 (C. Adams ed. 1856).
[ Footnote 2/9 ]
The majority places an unsupportable reliance on the fact that the drafters used "the people" in the Fourth Amendment while using "person" and "accused" in the Fifth and Sixth Amendments respectively, see ante at 494 U. S. 265 -266. The drafters purposely did not use the term "accused." As the majority recognizes, ante at 494 U. S. 264 , the Fourth Amendment is violated at the time of an unreasonable governmental intrusion, even if the victim of unreasonable governmental action is never formally "accused" of any wrongdoing. The majority's suggestion that the drafters could have used "person" ignores the fact that the Fourth Amendment then would have begun quite awkwardly: "The right of persons to be secure in their persons. . . . "
[ Footnote 2/10 ]
The only historical evidence the majority sets forth in support of its restrictive interpretation of the Fourth Amendment involves the seizure of French vessels during an "undeclared war" with France in 1798 and 1799. Because opinions in two Supreme Court cases, 6 U. S. 268 , the majority deduces that those alive when the Fourth Amendment was adopted did not believe it protected foreign nationals. Relying on the absence of any discussion of the Fourth Amendment in these decisions, however, runs directly contrary to the majority's admonition that the Court only truly decides that which it "expressly address[es]." Ante at 494 U. S. 272 (discussing INS v. Lopez-Mendoza, 468 U. S. 1032 (1984)). Moreover, the Court in Little found that the American commander had violated the statute authorizing seizures, thus rendering any discussion of the constitutional question superfluous. See, e.g., Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 347 (1936) (Brandeis, J., concurring). And in Talbot, the vessel's owners opposed the seizure on purely factual grounds, claiming the vessel was not French. Furthermore, although neither Little nor Talbot expressly mentions the Fourth Amendment, both opinions adopt a "probable cause" standard, suggesting that the Court may have either applied or been informed by the Fourth Amendment's standards of conduct. Little, supra, at 2 Cranch 6 U. S. 179 ; Talbot, supra,@ 1 Cranch at 5 U. S. 31 -32 (declaring that "where there is probable cause to believe the Vessel met with at sea is in the condition of one liable to capture, it is lawful to take her, and subject her to the examination and adjudication of the courts").
[ Footnote 2/11 ]
The last of the Insular Cases cited by the majority, Downes v. Bidwell, 182 U. S. 244 (1901), is equally irrelevant. In Downes, the Court held that Puerto Rico was not part of "the United States" with respect to the constitutional provision that "all Duties, Imposts and Excises shall be uniform throughout the United States," U.S. Const., Art. 1, § 8, cl. 1. 182 U.S. at 182 U. S. 249 . Unlike the uniform duties clause, the Fourth Amendment contains no express territorial limitations. See n. 7, supra.
[ Footnote 2/12 ]
The District Court found no exigent circumstances that would justify a warrantless search. After respondent's arrest in Mexico, he was transported to the United States and held in custody in southern California. Only after respondent was in custody in the United States did the Drug Enforcement Administration (DEA) begin preparations for a search of his Mexican residences. On the night respondent was arrested, DEA Agent Terry Bowen contacted DEA Special Agent Walter White in Mexico to seek his assistance in conducting the search. Special Agent White contacted Mexican officials the next morning and at 1 p.m. authorized Agent Bowen to conduct the search. A team of DEA agents then drove to Mexico, met with Mexican officials, and arrived at the first of respondent's two residences after dark. 856 F.2d 1214 , 1226 (CA9 1988). The search did not begin until approximately 10 p.m. the day after respondent was taken into custody.App. to Pet. for Cert. 101a. In all that time, particularly when respondent and Agent Bowen were both in the United States and Agent Bowen was awaiting further communications from Special Agent White, DEA agents could easily have sought a warrant from a United States Magistrate.
[ Footnote 2/13 ]
Justice STEVENS concurs in the judgment because he believes that the search in this case "was not unreasonable' as that term is used in the first clause of the Amendment." Ante at 494 U. S. 279 . I do not understand why Justice STEVENS reaches the reasonableness question in the first instance rather than remanding that issue to the Court of Appeals. The District Court found that, even if a warrant were not required for this search, the search was nevertheless unreasonable. The court found that the search was unconstitutionally general in its scope, as the agents were not limited by any precise written or oral descriptions of the type of documentary evidence sought.App. to Pet. for Cert. 102a. Furthermore, the Government demonstrated no specific exigent circumstances that would justify the increased intrusiveness of searching respondent's residences between 10 p.m. and 4 a.m., rather than during the day. Id. at 101a. Finally, the DEA agents who conducted the search did not prepare contemporaneous inventories of the items seized or leave receipts to inform the residents of the search and the items seized. Id. at 102a. Because the Court of Appeals found that the search violated the Warrant Clause, it never reviewed the District Court's alternative holding that the search was unreasonable even if no warrant were required. Thus, even if I agreed with Justice STEVENS that the Warrant Clause did not apply in this case, I would remand to the Court of Appeals for consideration of whether the search was unreasonable. Barring a detailed review of the record, I think it is inappropriate to draw any conclusion about the reasonableness of the Government's conduct, particularly when the conclusion reached contradicts the specific findings of the District Court.
Justice KENNEDY rejects application of the Warrant Clause not because of the identity of the individual seeking protection, but because of the location of the search. See ante at 494 U. S. 278 (KENNEDY, J., concurring) ("[T]he Fourth Amendment's warrant requirement should not apply in Mexico as it does in this country"). Justice KENNEDY, however, never explains why the reasonableness clause, as opposed to the Warrant Clause, would not apply to searches abroad.
[ Footnote 2/14 ]
The United States Government has already recognized the importance of these constitutional requirements by adopting a warrant requirement for certain foreign searches. Department of the Army regulations state that the Army must seek a "judicial warrant" from a United States court whenever the Army seeks to intercept the wire or oral communications of a person not subject to the Uniform Code of Military Justice outside of the United States and its territories. Army Regulation 190-53 ? 2-2(b) (1986). Any request for a judicial warrant must be supported by sufficient facts to meet the probable cause standard applied to interceptions of wire or oral communications in the United States, 18 U.S.C. § 2518(3). Army Regulation 190-53 ? 2-2(b). If the foreign country in which the interception will occur has certain requirements that must be met before other nations can intercept wire or oral communications, an American judicial warrant will not alone authorize the interception under international law. Nevertheless, the Army has recognized that an order from a United States court is necessary under domestic law. By its own regulations, the United States Government has conceded that although an American warrant might be a "dead letter" in a foreign country, a warrant procedure in an American court plays a vital and indispensable role in circumscribing the discretion of agents of the Federal Government.
Justice BLACKMUN, dissenting.
I cannot accept the Court of Appeals' conclusion, echoed in some portions of Justice BRENNAN's dissent, that the Fourth Amendment governs every action by an American official that can be characterized as a search or seizure. American agents acting abroad generally do not purport to exercise sovereign authority over the foreign nationals with whom they come in contact. The relationship between these agents and foreign nationals is therefore fundamentally different from the relationship between United States officials and individuals residing within this country.
I am inclined to agree with Justice BRENNAN, however, that when a foreign national is held accountable for purported violations of United States criminal laws, he has effectively been treated as one of "the governed" and therefore is entitled to Fourth Amendment protections. Although the Government's exercise of power abroad does not ordinarily implicate the Fourth Amendment, the enforcement of domestic criminal law seems to me to be the paradigmatic exercise of sovereignty over those who are compelled to obey. In any event, as Justice STEVENS notes, ante at 494 U. S. 279 , respondent was lawfully (though involuntarily) within this country at the time the search occurred. Under these circumstances I believe that respondent is entitled to invoke protections of the Fourth Amendment. I agree with the Government, however, that an American magistrate's lack of power to authorize a search abroad renders the Warrant Clause inapplicable to the search of a noncitizen's residence outside this country.
The Fourth Amendment nevertheless requires that the search be "reasonable." And when the purpose of a search is
the procurement of evidence for a criminal prosecution, we have consistently held that the search, to be reasonable, must be based upon probable cause. Neither the District Court nor the Court of Appeals addressed the issue of probable cause, and I do not believe that a reliable determination could be made on the basis of the record before us. I therefore would vacate the judgment of the Court of Appeals and remand the case for further proceedings.
The Willits bypass project is at a halt after more than 50 years of planning, officials reported Tuesday.
The topic came up when 3rd District Supervisor John Pinches noted an item on the consent calendar - a list of items that are voted on as a block because they are expected to be non-controversial - that would have raised funding to the Mendocino Private Industry Council, a jobs training program, by $300,000.
"In light of what happened yesterday with the Willits Bypass, it doesn't seem like there are jobs being created," he said. "Why are we spending money for training people when there are no jobs?"
The article from The Daily Journal continues...
Phil Dow of MCOG was called for an update, and told the board the council got a conditional funding agreement from Caltrans in June for about $126. million for the bypass. One of the conditions was that four permits were needed, one of them from the U.S. Army Corps of Engineers.
"We knew at time that the chief obstacle was the Army Corps of Engineers, which has control over wetlands, and we knew this was the largest wetlands take of any project handled by the Army Corps in the state of California. Everyone's known that for 15 years," Dow said.
After getting the three other permits needed, Caltrans met with the Army Corps "to decide what needed to be done to get a decision on the remaining permit" and developed a list of materials the Army Corps would need, with dates of delivery through 2012, according to Dow.
The materials were delivered according to an agreed-on schedule through Aug. 16, and the Army Corps told Caltrans to "back off" while the Corps reviewed the materials and made its decision on the final permit, according to Dow.
"We got word last Friday that their intent was not to issue a permit for the project," Dow said.
Thompson was in the area and called a meeting Monday with Caltrans and the Army Corps in his Napa office, according to Dow.
Dow, who attended by teleconference, said the reason the Army Corps gave for not signing the permit was that it didn't have enough information, and didn't have "the discretion to issue a conditional permit."
Dow questioned why, if they couldn't issue the permit, they agreed on a list of needed items through 2012.
"They couldn't answer other than to apolojize for the confusion," Dow said.
He said discussion between the attorneys for Caltrans and the Army Corps indicated the Army Corps does have discretion to issue conditional permits when the wetlands take is small, and when the project footprint is small. That raised the question of whether the Army Corps ever meant to issue the permit, Dow said.
He said contsruction was to start by next spring, and the project was to generate hundreds jobs for about four years.
"The jobs thing is bigger than the traffic issue at this point," Dow said. "Now that's not going to happen."
Posted by Jeff Muskrat at 10:28 PM
Photo by Sharyn Cornelius: Glenn Dye, chairman of the Save Kilarc Committee, welcomes everyone to the public meeting held by the Federal Energy Regulatory Commission in Whitmore on Aug. 17, 2010. At the meeting, members of FERC's environmental review staff took testimony from Whitmore residents. All those who spoke oppose Pacific Gas and Electric Company's plans to destroy the Kilarc and Cow Creek Hydroelectric plants.
When Federal Energy Regulatory Commission representatives came to Whitmore on Aug. 17, 2010 to listen to what residents had to say about Pacific Gas and Electric Company's (PG&E) plans to decommission the Kilarc -Cow Creek Hydroelectric Project, they got a fairly warm welcome. Not only did Whitmore residents put together a potluck smorgasbord of finger foods for the benefit of those who had come straight from work to the meeting, most of the 30-plus speakers refrained from denigrating the Draft Environmental Impact Statement produced by the FERC team, as they had at the previous meeting in Redding. The speakers tried instead to politely explain to the authors of the DEIS how the loss of the popular Kilarc Fore Bay recreation area and the irrigation water which flows through the Cow Creek Powerhouse to ranches in the South Cow Creek Valley, would affect them, the “human element” in the environmental equation.
Shasta County Supervisor Glenn Hawes urged the FERC team to heed the wishes of the community and start over on their environmental analysis of the effects of decommissioning, because these people “deserve a top-notch process.” He added that destroying Kilarc , which has been a part of the Whitmore community for over 100 years and provides water for firefighting efforts, would be “an environmental injustice that cannot be mitigated.”
Congressman Wally Herger's representative David Meurer read a statement in which Herger formally requested that FERC's legal staff analyze the contention raised by Evergreen Shasta Power's (ESP) legal counsel that, despite the fact that ESP had missed the deadline to apply to relicense the Kilarc -Cow Creek Project, “FERC has the authority to convene a settlement conference [between PG&E and ESP] and require a review of alternatives to facilities removal.” FERC environmental team leader CarLisa Linton said she will relay that issue to their legal staff.
Many of the Whitmore residents who spoke said they feared that the loss of the Kilarc Fore Bay recreation area would mean financial loss for the community. Jeff Dresen, owner of the Whitmore Store, said that quite a bit of his revenue comes from folks heading up to Kilarc to go fishing who stop to buy gas, ice and groceries. Lynette Gooch, owner of Tuscan Heights Lavender Farm below the Kilarc reservoir, told the FERC team that she and her husband had invested every dime in their place and “if we lose our water, we would lose everything.” (She and many residents of Fern Road East believe their wells are recharged by seepage from Kilarc Reservoir.) Whitmore Union Elementary School District Superintendent/Principal George DeFillipo said that because the District is now funded by basic aid (local property tax) anything that lowers property values in the community would also harm the school, and he fears that losing Kilarc could do just that.
Other residents continued to scoff at claims made by the Department of Fish and Game that anadromous fish such as salmon and steelhead can leap up over Whitmore Falls on their spawning run and would therefore benefit from increased water flow in the upper reaches of Old Cow Creek if the Kilarc diversion dam were removed. Ninety-year-old Robert Marx, who was born and raised at Kilarc and fished the reservoir for 75 years, said that in all those years he had “never seen a salmon above the falls.” Wildlife biologist Bob Carey explained why. He said that while it is true that salmon and steelhead can jump quite high in the early stages of their spawning runs while they are still in good condition, they do not feed once they enter freshwater streams, in this case the Sacramento River near the Delta, 250 miles from Whitmore Falls. Carey said that any fish that made it as far as Whitmore Falls would be in very poor condition by the time they got there and much too weak to attempt the 10-foot leap.
Though the FERC team has said several times that they believe their only task is to evaluate the environmental impact of PG&E's decommissioning plans, several speakers told them they can consider other alternatives, such as recommending that the plants be sold to new operators, who could then apply for new licenses. Kelly Sackheim of Davis Hydro, which along with Evergreen Shasta Power seeks to take over operation of the facilities after PG&E surrenders it license for them, reminded the team that when FERC representative T. J. Lovullo had conducted a public meeting on the project in Redding in 2008, he said that FERC could allow PG&E to surrender its license and order it just to “close the door and walk away” provided that a qualified operator was waiting in the wings to relicense the facilities. In this case, there are two potential operators waiting in the wings, and most of the speakers made it clear that they would like FERC to seriously consider the alternatives they have proposed.
Filed under: 09-02-2010
November 7 &
8, 2010
Community Summit on
Historic Mining Impacts
in the Sierra Nevada
Nevada City, CA The Sierra Fund,
http://www.sierrafund.org/campaigns/mining/miningsummit
The Solution to our Chronic Mineral Deficiency Now!
by Dawn Adrienne Taylor
Information has finally reached the daily press warning of the link between
mineral-deficient foods and degenerative diseases. But what can we
do to improve our health immediately and prevent future disease?
It took almost 30 years of sourcing optimum nutrition before
I discovered a unique 75 organic plant-derived mineral
supplement that is transforming my health
and that of countless others.
“Minerals in the soil control the metabolism of plants, animals and man.
All of life will be either healthy or unhealthy according to the fertility of the soil.”
This was a statement made by Dr Alexus Carrel, Nobel Prize Winner, in 1912. Almost a hundred years later, agriculturist and writer, Graham Harvey, wrote in The Daily Telegraph , 18 February 2006: “Britain's once fertile soil has been systematically stripped of its crucial minerals by industrial farming, leaving our fruit and vegetables tasteless and a nation in chronic ill health.”
William Albrecht (1896-1974 Illinois), referred to as the Father of Soil Research for his pioneering studies of the effects of infertile soil on plants and animals, warned in 1930s that if the land was not remineralised, there would be a massive increase in human degenerative diseases.
under the circumstances of the case the demand for entry or inspection is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.
Iron Mountain Mine and T.W. Arman intervene, "two miners"
Nuts and Bolts of COMEX Silver Manipulation
The silver market is one of those puzzles that continues to challenge our understanding of free market concepts because it is MASSIVELY volatile for such a stable supply/demand dynamic. When was the last time you heard of a gigantic silver discovery that would drastically increase the supply of silver? Or a new manufacturing technology that will replace the ever increasing demand for industrial silver? Let me save you some time...you have never heard of any drastic changes in the supply/demand equation. So why are silver prices so volatile when everything else related to physical silver isn't?
Taking a deep look at the details of COMEX silver trading can be very illuminating as to why but when you understand what is really going on... it is downright infuriating! I've put together a rare glimpse into what REALLY happens when buyers and sellers get together to make a market in silver on the COMEX. I hope you are sitting down because this covers just 5 MINUTES of a ordinary trading day...
September 1, 2010: COMEX silver traded sideways almost all day. This is predictable as there was no earth shattering news of a huge discovery or massive industrial purchase coming out of the mainstream media. Other than a brief spike up to 19.535 at 8:38:07 (likely people were trying to make a run at the highs in both gold and silver) the market was drifting down a bit, and traded in a tight range between 19.35 and 19.40. Ho hum.
Suddenly, the trading action changed dramatically. Starting at 13:20:00 (5 minutes before the COMEX floor close in silver), someone started to press the market down, and they in fact got a print at the low of the day at 19.32. To accomplish this they had to sell 215 contracts. Did someone panic OR was this a manipulation of the price lower (which is illegal)?
Then, turning on a dime at 13:22:30 (2.5 minutes before the COMEX floor closed), they started buying all available liquidity. At this time of day (final two minutes), the market participants and market makers are the most active. It's the highest liquidity in the day. So, they started buying all they could, and drove the price quickly back up to 19.40. They didn't go above that price. They just bought all they could for the final 2.5 minutes, gingerly, not wanting to rally above 19.40. In the end they had bought 853 contracts.
When the dust settled they basically were able to buy a net 638 contracts in the final 5 minutes of COMEX silver trading, without causing a price rise. They were able to do this, since they knew when the potential liquidity would be the largest of the day, and they started with a head-fake down move, to get extra sellers. If they had simply started buying, they would have created a much larger price rally.
This "play by play" account really shows the nuts and bolts of manipulation as it happens. When you equate this to physical silver the numbers are staggering. This was basically a paper dump of 1,075,000 oz of silver to rig the price lower hitting stop losses and the clueless panickers only to buy back 4,265,000 oz of silver within minutes. The net effect... 3,190,000 oz of silver bought ALL IN 5 MINUTES WITHOUT EFFECTING THE PRICE OF THE METAL!
They are clever crooks but they are crooks none the less. I think this also shows that someone really is trying to buy (or cover shorts) as best they can, without pushing the price up too quickly. The likely culprit is our friends over at JP Morgan. They probably didn't even reduce open interest. Just passed the "hot potato" short positions to someone else. Mostly market makers or maybe even others they collude with to hide the gigantic short position.
As JPM appears to be working hard to thin their position, the shorts are being spread around (since the open interest hasn't contracted). Since most folks don't have exceedingly deep pockets (other than huge banks), they don't have an appetite for big losses. As such, they will likely add to the buying frenzy a lot faster than JPM would have when we take out key levels on the upside.
Many professional traders might say this is just "smart trading" but there is a fundamental problem here. These gigantic trades are not representative of the underlying physical market in silver! There is a massive physical silver shortage in the world and having the CFTC sit back and watch as millions of ounces trade hands in a matter of minutes is outrageous. I'm not saying that someone shouldn't buy 4M oz of silver in 2 minutes BUT to do it in a way that is manipulative to the price of silver is ILLEGAL anyway you slice it.
IMPEACH JUDGE JOHN A. MENDEZ
| The Colbert Report | Mon - Thurs 11:30pm / 10:30c | |||
| The Word - Justice | ||||
in Picquet v. Swan, 5 Mas. 35, Mr. Justice Story said: —
"Where a party is within a territory, he may justly be subjected to its process, and bound personally by the judgment pronounced on such process against him. Where he is not within such territory, and is not personally subject to its laws, if, on account of his supposed or actual property being within the territory, process by the local laws may, by attachment, go to compel his appearance, and for his default to appear judgment may be pronounced against him, such a judgment must, upon general principles, be deemed only to bind him to the extent of such property, and cannot have the effect of a conclusive judgment in personam, for the plain reason, that, except so far as the property is concerned, it is a judgment coram non judice."
And in Boswell's Lessee v. Otis, 9 How. 336, where the title of the plaintiff in ejectment was acquired on a sheriff's sale, under a money decree rendered upon publication of notice against non-residents, in a suit brought to enforce a contract relating to land, Mr. Justice McLean said: —
"Jurisdiction is acquired in one of two modes: first, as against the person of the defendant by the service of process; or, secondly, by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case, the defendant is not personally bound by the judgment beyond the property in question. And it is immaterial whether the proceeding against the property be by an attachment or bill in chancery. It must be substantially a proceeding in rem."
Mr. Justice Miller, said: —
"Its essential purpose or nature is to establish, by the judgment of the court, a demand or claim against the defendant, and subject his property lying within the territorial jurisdiction of the court to the payment of that demand. But the plaintiff is met at the commencement of his proceedings by the fact that the defendant is not within the territorial jurisdiction, and cannot be served with any process by which he can be brought personally within the power of the court. For this difficulty the statute has provided a remedy. It says that, upon affidavit being made of that fact, a writ of attachment may be issued and levied on any of the defendant's property, and a publication may be made warning him to appear; and that thereafter the court may proceed in the case, whether he appears or not. If the defendant appears, the cause becomes mainly a suit in personam, with the added incident, that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But if there is no appearance of the defendant, and no service of process on him, the case becomes in its essential nature a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff. That such is 726 *726 the nature of this proceeding in this latter class of cases is clearly evinced by two well-established propositions: first, the judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property attached in that suit. No general execution can be issued for any balance unpaid after the attached property is exhausted. No suit can be maintained on such a judgment in the same court, or in any other; nor can it be used as evidence in any other proceeding not affecting the attached property; nor could the costs in that proceeding be collected of defendant out of any other property than that attached in the suit. Second, the court, in such a suit, cannot proceed, unless the officer finds some property of defendant on which to levy the writ of attachment. A return that none can be found is the end of the case, and deprives the court of further jurisdiction, though the publication may have been duly made and proven in court."
it beginning to be considered, as it always ought to have been, that a judgment which can be treated in any State of this Union as contrary to the first principles of justice, and as an absolute nullity, because rendered without any jurisdiction of the tribunal over the party, is not entitled to any respect in the State where rendered. Smith v. McCutchen, 38 Mo. 415 ; Darrance v. Preston, 18 Iowa, 396 ; Hakes v. Shupe, 27 id. 465; Mitchell's Administrator v. Gray, 18 Ind. 123 .
Be that as it may, the courts of the United States are not required to give effect to judgments of this character when any right is claimed under them. Whilst they are not foreign tribunals in their relations to the State courts, they are tribunals 733 *733 of a different sovereignty, exercising a distinct and independent jurisdiction, and are bound to give to the judgments of the State courts only the same faith and credit which the courts of another State are bound to give to them.
Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such judgments may be directly questioned, and their enforcement in the State resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law. Whatever difficulty may be experienced in giving to those terms a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings. They then mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution — that is, by the law of its creation — to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the State, or his voluntary appearance.
Except in cases affecting the personal status of the plaintiff, and cases in which that mode of service may be considered to have been assented to in advance, as hereinafter mentioned, the substituted service of process by publication, allowed by the law of Oregon and by similar laws in other States, where actions are brought against non-residents, is effectual only where, in connection with process against the person for commencing the action, property in the State is brought under the control of the court, and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein; in other words, where the action is in the nature of a proceeding in rem. As stated by Cooley in his Treatise on Constitutional Limitations, 405, for any other purpose than to subject the property of a non-resident to valid claims against 734 *734 him in the State, "due process of law would require appearance or personal service before the defendant could be personally bound by any judgment rendered." 95 U.S. 714 (____)
Supreme Court of United States.
719 *719 Mr. W.F. Trimble for the plaintiff in error.
Mr. James K. Kelly, contra.
MR. JUSTICE FIELD delivered the opinion of the court.
“The law assumes that property is always in the possession of its owner ….” Pennoyer v. Neff , 95 U.S. (5 Otto) 714, 727 (1877)
[12 USC 342. As amended by act of Sept. 7, 1916 (39 Stat. 752), which completely revised this section; June 21, 1917 (40 Stat. 234); and March 31, 1980 (94 Stat. 139). With respect to the receipt by Reserve Banks of checks and drafts on deposit, see also section 16.]
[12 USC 343. As amended by act of Sept. 7, 1916 (39 Stat. 752), which completely revised this section; and by act of March 4, 1923 (42 Stat. 1478). As used in this paragraph the phrase "bonds and notes of Government of the United States" includes Treasury bills or certificates of indebtedness. (See act of June 17, 1929, amending section 5 of Second Liberty Bond Act of Sept. 24, 1917). As to eligibility for discount under this paragraph of notes representing loans to finance building construction, see this act, section 24).]
[12 USC 343. As added by act of July 21, 1932 (47 Stat. 715); and amended by acts of Aug. 23, 1935 (49 Stat. 714) and Dec. 19, 1991 (105 Stat. 2386.]
[12 USC 344. As added by act of March 4, 1923 (42 Stat. 1479); and amended by act of May 29, 1928 (45 Stat. 975).]
[12 USC 345. As reenacted without change by act of March 3, 1915 (38 Stat. 958); and amended by act of Sept. 7, 1916 (39 Stat. 752), which completely revised this section; and by act of April 12, 1930 (46 Stat. 162).]
4000 - Advisory Opinions
At your request the Legal Division has reviewed OCC's interpretative rulings regarding section 5200 of the Revised Statutes (12 U.S.C. 84) 1 to determine whether or not those rulings are applicable to insured nonmember banks through Regulation O (12 C.F.R. Part 215).
It is our opinion, and that of the legal staff of the Federal Reserve Board, that § 22(h) and Regulation O only incorporate the 10% lending limit established by § 5200 of the Revised Statutes and the exceptions thereto. The term obligation as used in § 5200 and construed in OCC's interpretative rulings is not incorporated in either § 22(h) or Regulation O. 2 Inasmuch as section 22(h) and Regulation O use the term extension of credit which has its own separate and distinct definition, the interpretative rulings pertaining to what constitutes an obligation and how loans to separate borrowers are to be combined are not relevant to the application of Regulation O. The rulings on the exceptions to the 10% limit are, however, relevant. 3 The Legal Division, as well as the FRB staff, have informally adopted the position that while the FDIC and FRB are free to construe the exceptions to § 5200 in a manner differently than the OCC, OCC's interpretative rulings will be followed.
SEC. 201. DEFINITIONS.
SEC. 202. JUDICIAL REVIEW.
SEC. 203. SYSTEMIC RISK DETERMINATION.
SEC. 204. ORDERLY LIQUIDATION OF COVERED FINANCIAL COMPANIES.
SEC. 205. ORDERLY LIQUIDATION OF COVERED BROKERS AND DEALERS.
SEC. 206. MANDATORY TERMS AND CONDITIONS FOR ALL ORDERLY LIQUIDATION ACTIONS.
SEC. 214. PROHIBITION ON TAXPAYER FUNDING.
SEC. 212. PROHIBITION OF CIRCUMVENTION AND PREVENTION OF CONFLICTS OF INTEREST.
[12 USC 346. As amended by act of March 3, 1915 (38 Stat. 958); by act of Sept. 7, 1916 (39 Stat. 752), which completely revised this section; and by act of March 4, 1923 (42 Stat. 1479).]
[Formerly 12 USC 372, as amended by act of March 3, 1915 (38 Stat. 958); by act of Sept. 7, 1916 (39 Stat. 752), which completely revised this section; and by acts of June 21, 1917 (40 Stat. 235) and Oct. 8, 1982 (96 Stat. 1239). Omitted from the U.S. Code.]
[12 USC 347. As added by act of Sept. 7, 1916 (39 Stat. 753), which completely revised this section; and amended by acts of May 19, 1932 (47 Stat. 160); May 12, 1933 (48 Stat. 46); June 16, 1933 (48 Stat. 180); Jan. 31, 1934 (48 Stat. 348); April 27, 1934 (48 Stat. 646); Oct. 4, 1961 (75 Stat. 773); and Sept. 21, 1968 (82 Stat. 856).]
Repealed by act of Oct. 15, 1982 (96 Stat. 1510).
[Omitted from U.S. Code. As amended by act of Sept. 7, 1916 (39 Stat. 753), which completely revised this section.]
[Omitted from U.S. Code. As added by act of Sept. 7, 1916 (39 Stat. 753), which completely revised this section.]
[Formerly 12 USC 373, as added by act of Sept. 7, 1916 (39 Stat. 754), which completely revised this section. Not codified to the Federal Reserve Act. Omitted from the U.S. Code.]
[12 USC 347c. As added by act of March 9, 1933 (48 Stat. 7) and amended by act of Sept. 21, 1968 (82 Stat. 856).]
[12 USC 347d. As added by act of Sept. 17, 1978 (92 Stat. 621).]
1 So in original. Probably should read "referred to in this paragraph."
Last update: August 13, 2008Bernanke says 'too-big-to-fail' must end
(AFP) – 72 hours ago
WASHINGTON — The most important lesson to come from the financial crisis is that banks must not be allowed to become "too-big-to-fail," Federal Reserve chairman Ben Bernanke said Thursday.
In an interesting twist, Bernanke was also asked how the Fed might handle the crises at Bear Stearns, Lehman Brothers and AIG had the financial reform law passed this summer been in effect in 2008.
The Dodd Frank Act gives regulators something Bernanke and other policymakers have been asking for since the crisis began, the ability to wind down big nonbank financial firms without resorting to a bankruptcy filing. Bernanke said ensuring that troubled big firms don't get bailed out is the key to ending the financial system's destructive too big to fail mentality.
"There has to be a credible way to let firms, in fact to require that they fail," Bernanke said.
Accordingly, he said, the crises at Bear, Lehman and AIG under the new regime would likely result in the firms' resolution – the process of winding down their operations and liquidating them over time.
That means AIG, next time around, would go through the wringer too.
"I don't see what the alternative would have been," he said, "unless we could have stopped the run through some cheery words of some kind."
Bernanke FCIC Testimony: Fed Chairman Appearing Before Financial Crisis Inquiry Commission
WASHINGTON — Federal Reserve Chairman Ben Bernanke told a panel investigating the financial crisis that regulators must be ready to shutter the largest institutions if they threaten to bring down the financial system.
"If the crisis has a single lesson, it is that the too-big-to-fail problem must be solved," Bernanke said Thursday while testifying before the Financial Crisis Inquiry Commission.
Bernanke also said it was impossible for the Fed to rescue Lehman Brothers from bankruptcy in 2008 because the Wall Street firm lacked sufficient collateral to secure a loan. Lehman's former chief executive told the panel a day earlier that the firm could have been saved, but regulators refused to provide help.
The Fed chief presented his analysis of the crisis and views on potential systemwide risks as the panel approaches the end of its yearlong investigation into the Wall Street meltdown.
The financial overhaul law enacted this summer gives regulators the authority to shut down firms when their collapse poses a broader threat to the system. The process resembles the one used by the Federal Deposit Insurance Corp. to close failing banks.
FDIC Chairman Sheila Bair told the panel "the stakes are high" for regulators to effectively exercise their new powers.
If not, "we will have forfeited this historic chance to put our financial system on a sounder and safer path in the future," Bair said. "The tools are there. The regulators have to use them," she testified.
Panel Chairman Phil Angelides said the new law will be an enormous test of will of the regulators.
Bair and Bernanke said tougher rules and market pressures will lead huge firms to voluntarily shrink themselves. Executives can no longer count on the government to bail them out if they veer toward failure, they said.
Bernanke said that bailing out these institutions is not a healthy solution and great improvement will come from the new law.
"Too-big-to-fail financial institutions were both a source ... of the crisis and among the primary impediments to policymakers' efforts to contain it," Bernanke said.
"We should not imagine ... that it is possible to prevent all crises," he said. "To achieve both sustained growth and stability, we need to provide a framework which promotes the appropriate mix of prudence, risk-taking and innovation in our financial system."
Bernanke led the economy through the financial crisis and the worst recession since the 1930s. The Federal Reserve took extraordinary measures to inject hundreds of billions into the battered financial system.
Last week he said the central bank is prepared to make a major new investment in government debt or mortgage securities if the economy worsened significantly.
Members of the congressionally appointed panel have questioned the government's decision to let Lehman fall while injecting billions of dollars into other big financial institutions during the crisis.
Former Lehman CEO Richard S. Fuld Jr. testified Wednesday that the firm could have been rescued. But the regulators refused to help – even though they later bailed out other big banks.
Bernanke disagreed. He said bailing out Lehman would have saddled the taxpayers with billions of dollars in losses.
"It was with great reluctance and sadness that I conceded there was no other option" than allowing Lehman to fail, he said.
Asked how the Lehman case differed from that of American International Group Inc., which received $182 billion in taxpayer aid, Bernanke said there was a fundamental difference.
AIG, as the biggest insurance company in the U.S., had valuable assets which could back up the Fed's emergency loan, he said.
"The Federal Reserve will absolutely be paid back by AIG," Bernanke said.
"We are in charge of our own destiny." - Robert Gibbs, Whitehouse press secretary, 9-2-2010
"PUT IT TO BED - LIGHTS OUT!" in loco parentis, parens patriae, parens personum, deo, patriae, tibi. Malcus of Tyre
MARCO ISLAND — It's no small task for a man without a law degree to take a federal agency to court and claim victory. However, that's just what computer science professor Mario Sanchez did.
Sanchez spent years seeking information regarding the handling of toxic substances in Marco Island.
The Marco resident had little success until he filed a complaint, representing himself, against the Environmental Protection Agency last Sept. 18. The complaint contended the EPA violated the federal Freedom of Information Act by not providing documents pertaining to an investigation of effluent pumped into waterways and mishandled asbestos.
When Sanchez received the documentation that he sought, he agreed to drop the case in early August.
“I feel I won,” Sanchez said. “Because it was such a horrifying experience for me to be a non-attorney, just a regular Joe Blow, who went up against the U.S. government.”
The request was for all EPA documentation related to Marco Island from 2005 through July, 31, 2008.
His complaint asserted that effluent containing hydrogen sulfide, sulfuric acid and sediment was pumped untreated into waterways, streets, swales and sidewalks. Also, according to the document, hydrogen sulfide gas was released into the air. This caused several residents and at least two city workers to seek medical treatment, officials have since confirmed.
Initially, the EPA denied these allegations in its defense filed with the U.S. District Court in Fort Myers.
However, the EPA did follow through on asbestos mishandling in March, alleging that the city and its contractor, Quality Enterprises, violated six sections of the Clean Air Act as early as March 2005 until as late as November 2008 while the city undertook road widening and adding sewer lines to Collier Boulevard.
“That, to me, was a great satisfaction, proving we weren't crazy. The city was in fact polluting our environment,” Sanchez said.
Sanchez and other residents of the time, including Godfrey Davies, were providing evidence to the Florida Department of Environmental Protection and the EPA to no avail.
Davies, who later moved to Kirklin, Ind., in 2008, provided time-stamped video and other evidence indicating what he believed to be violations of the Clean Air Act as well as violations of the Clean Water Act.
The city and Quality Enterprises settled with the EPA in lieu of formal enforcement for Clean Air Act violations. Fines as high as $37,500 per day were averted when Quality Enterprises agreed to pay $81,772 total in the June settlement agreement.
So far, nothing has come of the Clean Water Act investigations.
The relationship between the state and federal agencies may be the cause for that, Sanchez said.
The EPA enforces the Clean Air Act and DEP is responsible for investigating Clean Water Act violations. The EPA relies on DEP's Clean Water Act investigations, and, in this case, DEP dismissed the evidence provided by citizens, Sanchez said.
“The citizens were denigrated beyond redemption,” he said.
The EPA declined to answer questions from the Daily News, referring inquiries to the U.S. Department of Justice. Questions for comments were sent to a Justice spokesman, but so far the Daily News hasn't received responses.
Nearly 1,000 pages of records were obtained since the Freedom of Information Act filing and are posted to Sanchez's website, marcoislandblog.blogspot.com. They indicated that several environmental crimes, as first reported by Sanchez and other residents, were substantiated.
DEP official Michael Tanski, in an e-mail dated Aug. 24, 2007, to Alenda Johnson of the EPA, denied that any environmental wrongdoing was taking place on Marco Island and wrote that the residents were making up the allegations of Clean Water Act violations.
“The residents are trying to do whatever they can to disrupt the extension of the sewer lines to the area, and from the department's view, there are no violations being generated from the construction activities,” Tanski wrote.
However, an e-mail dated earlier the same day to Tanksi contradicted his statement.
“The effluent was originally deposited into the swales, but in some areas, H2S (hydrogen sulfide) levels were easily detectable and raised concern for health issues,” wrote DEP employee Jon Iglehart.
Davies first sent his videos and other evidence to the DEP, but when he wasn't getting responses, he began taking his evidence to the EPA.
“Mario and I took it to the highest levels we could and they still dropped the ball,” Davies said.
If the recently obtained records had been provided earlier, Sanchez said he would have sued the EPA to require it take enforcement action against city and DEP employees.
“It did take time and that was a winning strategy (for them),” Sanchez said. “The damage was already done. It's sad that the people can get away with it.”
Public Health Goal
A revised PHG of 300 ^g/L was developed for copper in drinking water, based on a review 1
of the scientific literature since the original PHG, in 1997 (OEHHA, 2008). Copper is an
essential nutiient in humans, and has not been shown to be carcinogenic in animals or
humans. However, young children, and infants in particular, appear to be especially
susceptible to the effects of excess copper.
The revised PHG of 300 pig/L is two orders of magnitude greater than the applicable
numeric chemical-specific standards identified in ROD 5 for the protection of freshwater aquatic life
(see Table 1). Therefore, the revised PHG for copper wUl have no impact on the
protectiveness of the remedies originally selected in the RODs for IMM.
Sub specie mali : The stream of thought flows on; but most of its segments fall into the bottomless abyss of oblivion. Of some, no memory survives the instant of their passage. Of others, it is confined to a few moments, hours or days. Others, again, leave vestiges which are indestructible, and by means of which they may be recalled as long as life endures. -William James
