BANNER1

Corrections: "Sacramento River"; is a waterbody properly known as Keswick Lake; "Spring Creek Reservoir" is not a resrvoir, It is a debris dam.

Ted Arman-proprietor

ARMAN-NANOORGANISM

 

Developing a Sustainable Hardrock Mining and Mineral Processing Industry

The Colbert Report Mon - Thurs 11:30pm / 10:30c
The Word - Justice
www.colbertnation.com
Colbert Report Full Episodes 2010 Election March to Keep Fear Alive

EPA Leader Pledges Fair Decision on Power Plant

Posted Nov. 27, 2010.

By Karl Brooks, US Environmental Protection Agency Region 7 Director, for the LJ World

The Sunflower coal-burning power plant controversy has been divisive, complicated — and long-running. Five years on, you can pick a fight by backing or opposing one of the biggest coal-fired plant proposed for this nation.

Each branch of state government — the Legislature, two governors, every level of the state courts — has weighed in. Tens of thousands of Kansans have gone on record for and against permitting Sunflower's construction.

Me, too! When I was teaching history and law at KU, four years before I took the oath of office to lead EPA in this region, I testified that Kansas had to use a fair, transparent state permitting process to base any decision on law and science.

EPA has not yet been party to the Sunflower controversy. That's as it should be. Our U.S. Constitution shares federal and state responsibility to protect our nation's air resource. Our keystone Clean Air Act assigns Kansas Department of Health and Environment (KDHE) initial responsibility to decide if Sunflower's pollutants will damage Kansans' health too much.

But EPA will soon have to make some important legal decisions. And recent developments in Topeka and Washington, D.C., warrant a brief explanation of this agency's duties if the Sunflower controversy hits my desk.

You probably know that on Election Day, Kansas Gov. Mark Parkinson abruptly removed Rod Bremby, the state's top environmental-protection official. It's fair to say these two did not see eye to eye on Sunflower: Bremby denied its permit in 2007 and Parkinson reversed that decision in 2009.

You also should know that this nation's air-quality laws are changing at the same time a new governor takes the reins in Topeka. Starting in January 2011, the biggest new coal-burning pollution sources will have to limit climate-changing emissions for the first time.

How do these changes — political and legal, state and federal — affect EPA's work on Sunflower? Rest assured, EPA's Sunflower decisions in the coming months will reflect enduring legal principles, not shifting political winds.

Both Kansas and EPA agree: Sunflower would burn so much coal that a state permit issued after Jan. 2 must impose greenhouse-gas controls. Even Kansas leaders who back Sunflower concede that national law governs state permits.

While Kansas is amending its air-quality laws to control greenhouse gases, EPA and KDHE are cooperating to make sure applicants proposing new energy projects can still seek needed permits. A good example of federal-state partnership, this “backstop” shows why the Clean Air Act, now 40 years old, works so well.

Personnel changes at KDHE don't change EPA's responsibilities, but they do highlight Kansas' duty, under our system of government, to show its Sunflower decisions are fair, transparent, and consistent with the law.

If KDHE recommends Sunflower be permitted before Jan. 2, EPA will review this initial decision by asking three important questions:

First, does the Kansas permit include public health protection standards required by sound science and federal law?

Second, did Kansas operate all parts of its permitting process as required by the Clean Air Act?

And finally, does a Sunflower permit satisfy public confidence in the impartiality and transparency of Kansas' system of safeguarding air quality?

Kansas air permitting law gives all three branches of state government important work, and also invites the people of the state to participate. That's why EPA must scrutinize not just the language of any Sunflower permit, but the whole state decision-making process that produced a permit.

EPA has advised Kansas leaders of their duties many times. And Kansans should rest assured that this agency will make sure the rule of law has been faithfully enforced.

— Karl Brooks, a resident of Lawrence, leads the U.S. Environmental Protection Agency for Region 7 which includes Kansas, Missouri, Iowa, Nebraska and nine tribal nations.

 

A letter sent from Ireland:

Ireland is Bankrupt

For less than what the US spent to save AIG, a corporation, with relatively easy terms; a country sinks below the financial waves. TBTF reaches across the ocean. As posted by Zeus-boy, his comments on his homeland of Ireland.

Herman Van Rompuy, President of the European Council, warned that if Ireland didn't apply for an EU/ECB/IMF bailout for its failed banking system, its soaring budget deficit and its colossal national debt, then the European single currency might collapse [the bond markets have already panicked and cashed in], and if the International markets lost confidence in the Euro, then the dissolution of the Union would quickly follow. He said the future of the Eurozone depended on stemming the tide of market distrust caused by the tanking Irish economy. He feared contagion, that Portugal and Italy and Spain would soon follow.

<!-- move -->
Ireland is not only insolvent because it has no liquidity, no way of meeting its debts. The government decided to link the economic future of the country to a failed banking system and now the two are inextricably intertwined. No amount of raised taxes can bail out the banks and still pay the day-to-day running expenses of our welfare state. The famed 'Celtic Tiger' boom economy was always a high-risk, dangerous fiction. Someone dubbed Ireland the 'Wild West of Economics'. Our illusory wealth was tied to a property bubble that was as unsustainable as it vacuous, and all the money was borrowed, primarily from German savers. We were hooked on credit like it was crack cocaine. We binged but never purged and we stayed high to postpone the inevitable hangover. Everybody was in cahoots, from corrupt local governments, driving through emergency rezoning laws, to rogue bankers financing the criminal inflation of developments and shoveling billions to builders, to newspapers cashing in on their property advertising to regulators asleep at the wheel. Our mafia don cum Taoiseach, Bertie 'Gombeen-Man' Ahern, invited critics of the system to commit suicide. Nobody left the orgy. Nobody wanted to leave. Planet Hollywood had finally come to Planet Ireland!

But inevitably the whole house of cards would come crashing down, and Bertie [who tendered his timely resignation just before the collapse] soon got his wish as the suicide rate started to climb to the highest in Europe. The government panicked. The Minister for Finance, a barrister by profession, got a crash course in national and global economics. He learned about markets and budgets and bonds and gilts on the job, on a need-to-know basis. He instituted an abstraction called N.A.M.A. http://www.nama.ie/ , The National Assets Management Agency, whose remit basically is to buy up all the debt and properties left unfinished and unpaid for by the construction moguls [developers & builders] and their bankers, to transfer them to a national trust, cue Irish tax-payer, as if we owned them, or even wanted them, or could avail of them in any way, and to pay off the outstanding loans. All over Ireland, in every town and village, are these unfinished ghost estates. These now belong and do not belong to the Irish taxpayer. This offense was compounded by the decision to bail out the very banks [like Anglo Irish and Irish Permanent, really, all of them] that got us into the mess. The banks were hemorrhaging money [and still are] and the government was on hand to provide on-the-spot triage, a botched stitch-up job if there ever was one, a cluster-fuck of cosmic proportions.

The government, Fianna Fáil in coalition with The Greens and a few independents, lied through their teeth and kept telling the Irish taxpayer that exports were up, that the revenue would come in once the austerity budget was passed, once the 4-year plan was unveiled and ratified and that no bail-out would be necessary. Reduce public spending, they told us, tighten our belts; cut the public sector; Trim this, give a haircut to that and all would be hunky dory. Well, the same shower of gangsters who gave the green light to sub-prime lenders and hedge-fund speculators-gamblers went to the ECB/IMF with cap in hand this week and begged for a bailout. Then they came on TeeVee to announce the done-deal. Ireland will borrow over 85 billion from its partners in the EU and the IMF and, depending on the repayment interest, 5 -7%, we could be paying back upwards of 4 billion a year. That's about 1/4 of the Tax intake. The debt is completely beyond our means as Constantin Gurdjiev, http://trueeconomics.blogspot.com/ and David McWilliams http://www.davidmcwilliams.ie/category/articles/ are trying to point out.

Ireland is used to erosions of its sovereignty ever since we joined the European Union. We, we had our first referendum on the Lisbon Treaty in June 2008 and it was defeated. Sarkozy told our Taoiseach that he delivered the wrong result and to go back to the people and get the right result next time, so that's exactly what happened and so in April 2009 the treaty was finally passed in Ireland. So much for Irish sovereignty. Our membership of the single currency in 1998, as part of our EU obligations under the Maastricht Treaty, further compromised that independence. Now ceding control to the IMF -- to save the Eurozone -- is the final nail in the coffin of that putative myth known as Irish sovereignty. We gave away so glibly what we fought so hard to achieve.

Was it for this the wild geese spread
The grey wing upon every tide;
For this that all that blood was shed,
For this Edward Fitzgerald died,
And Robert Emmet and Wolfe Tone,
All that delirium of the brave?
Romantic Ireland's dead and gone,
It's with O'Leary in the grave.

I'm afraid the verdict isn't very flattering. Ireland is indeed a banana republic, a land full of cronyism, wink and nod business deals, insider trading, nepotism, feather your own nest and forget about the next guy, take all you can as quickly as you can no matter who gets hurt, ostracize the whistle blowers and critics, advance number one every time and keep the circles closed. There's no sense of civitas here, no notion of self-sacrifice, no pride in history, culture, nation; it's all up for grabs to the highest bidder. It doesn't matter that we struggled for 800 years to achieve independence, that millions died in the process; it doesn't matter that the folk memory of harsher times is still very much alive; none of this mattered to the few generations that have dismantled our country institution by institution and thrown the Irish people to the wolves, the bean counters in the IMF who will now control our destiny. Our political system is in ruins. The people have lost all faith in their elected representatives. They feel that welfare for the wealthy, bailouts for crooked corporations and rewards instead of punishments for embezzlement and thievery is the rule of the land. And what the British and the world said about us, all the stereotypes, seem to be true after all and maybe were always true: we were never equipped to govern ourselves, we're a nation of drunks, peasants, irresponsible wasters and chancers addicted to violence and quick fixes. Our independent republic is less than a century old and already it's in smithereens -- we're in the gutter and being dictated to by the UK, Germany, France and the IMF. Mr. Ajai Chopra is our new vice-chancellor, our new Taoiseach, our new overlord and big boss and we've just been recolonized, first by our own brood of inbred gangsters and now by international bankers. We didn't deserve any better. It's our own damn fault.

By 'we' I mean the select few that got our country into the financial mess. But the blame game serves no useful purpose now: we're all fucked, not equally, mind you [but when are people ever fucked equally?], and the nation has no option now but to drive through a draconian austerity budget and then take the bailout and let our affairs be run by outsiders. Could we say 'Fuck You' to the Euro and go back to the punt? Could we say 'Fuck You' to Germany and all our debtors? Could we say 'Fuck You' to the EU and let the Eurozone fall? Our politicians tell us we have no choice. It would be therapeutic to tell the lot of them to piss off and to return to hunter-gatherer status but how feasible is that? Kids think beef patties are really square and grow on trees. They wouldn't know how to pluck a chicken let alone sow and reap a harvest. Everything's in the grocery store and they're too busy playing play station, twittering and gabbing on Facebook to worry about the right time of year to plant a tuber. The EU is run by neo-liberalist economic policies and if Ireland doesn't play ball the multi-nationals will up and relocate to cheaper labour markets. They're already doing just that. They're encouraged to do it by Merkel and Sarkozy and Cameron.

And then there's always the fear that this crisis will inaugurate excessive nationalism, that the Provos will exploit civil unrest and lack of confidence in the government to push their demented and deranged United Ireland bollocks. Gerry Adams has already announced his candidacy for a seat in Co. Louth which, if elected, will find him in Dáil Éireann. This would be disastrous for Ireland. Ireland doesn't need Sinn Féin's brand of patriotism. People should remember Gerry Adams' devolvement announcement for the Good Friday Agreement: He said he was now ready to pursue through the political process the same agenda he failed to achieve through armed struggle, that is, a United Ireland. If Sinn Féin ever gets a foothold in Irish politics there will be a return to the rule of the gun; if his bunch of murderous, terrorist thugs are ever allowed to exploit the political vacuum in Ireland there will be a bloodbath. Adams has always preached against the EU and partnership with Britain. He's still the same dickweed that did time in Long Kesh and had Jean McConville a widowed mother of 11 children murdered because she administered last rites to a British soldier who died on her footstep. His brand of fascistic nationalism is no good for Ireland. We must reject him and what he stands for.

As a nation we're a joke, a laughing stock, and now it's time to become a colony of the IMF under the direction of the same cowboy outfit that brought peace and prosperity to Argentina and Iceland. O Joy, I just can't wait. We the Irish People have our asses greased for yet another bout of sodomy. We're used to it. It feels good. And this time we walked right into it. Heck, we can always get drunk afterwards, have a rare old session and weep and wail over our Fenian dead.

EQUAL PROTECTION, DUE PROCESS, ABSOLUTE SOVEREIGNTY

 

NOW RECRUITING

HONEST AND COMPETENT

CONTRACTORS & ENGINEERS

CALL JOHN HUTCHENS

 

226 See WILLIAM H. RODGERS, JR., ENVTL. LAW: AIR AND WATER, § 2.20, (1986)
(setting forth the contours of the doctrine and seminal works and cases discussing its
scope). Most famous among the cases dealing with the ecological protections is the 1983
Mono Lake case, National Audubon Society v. Superior Court of Alpine County, 658 P.2d
709 (Cal. 1983), in which the California Supreme Court pronounced the foundations of the
doctrine as it applies to issues of water quality and quantity, and equally compelling is the
United States Supreme Court’s precedent setting case, Illinois Central Railroad Co. v.
Illinois, 146 U.S. 387 (1892).
227 Wood & Welker, supra note 215, at 385. Nevertheless, for several centuries,
especially after the Industrial Revolution, the dominant society in the United States
suffered from a kind of “industrial thinking,” characterized by consumption and rewards
through accumulation. Id. at 389.

228 See S. 796, § 402(g); see also S. 140, § 203(e) (proposing similar language).
229 S. 796, § 402(g).
230 Id. § 506(c)(2).
231 Compare Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (CERCLA) § 120(e)(2), 42 U.S.C. § 9620(e)(2) (2006) (requiring an
interagency agreement for federal facility cleanups), with S. 796, § 402(g)(2) (requiring
only a memorandum of understanding for such cleanups).
232 40 C.F.R. pt. 300 (2009).
233 42 U.S.C. § 9620(a)(2)–(3).
234 Id. § 9620(e)(2).

235 See S. 796, § 303(b)(2)(B); see also id. § 302(c)(1)(B) (requiring the same
demonstration for an exploration plan).
236 See id. § 506(c)(2).
237 WORLD BANK REPORT, supra note 14, at 6.
238 INT’L INST. FOR SUSTAINABLE DEV., MINING MINERALS AND SUSTAINABLE
DEVELOPMENT NORTH AMERICA: TOWARDS CHANGE, THE WORK AND RESULTS OF
MMSD—NORTH AMERICA 1 (2002).

239 The sovereignty of Indian tribes is an established principle in federal statutes and
common law precedents. See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831)
(denominating tribes as “domestic dependent nations”); Worcester v. Georgia, 31 U.S. (6
Pet.) 515, 559–60 (1832) (“The Indian nations had always been considered as distinct,
independent political communities, retaining their original natural rights, as the undisputed
possessors of the soil, from time immemorial . . . . The words ‘treaty’ and ‘nation’ are
words of our own language . . . . We have applied them to Indians, as we have applied
them to the other nations of the earth. They are applied to all in the same sense.”); see
also DAVID H. GETCHES ET AL., CASES AND MATERIALS ON FEDERAL INDIAN LAW 124–
25 (4th ed. 1998) (discussing the Worcester decision and Justice Marshall’s emphasis on
the tribe’s “retained powers of ‘self-government’”.).
240 Cf. U.S. EPA, Waste Management in Indian Country, Publications,
http://www.epa.gov/epawaste/wycd/tribal/resource.htm (last visited on Mar. 5, 2010).
241 See BENALLY MORONI ET AL., DINÉ POLICY INST., URANIUM AND DINÉ
BINITSEKEES, AN ANALYSIS OF THE DIRECT AND IN-DIRECT CONSEQUENCES OF
URANIUM USING NAVAJO PRINCIPLES 2 (undated) (“The legacy uranium mining left on
the Navajo Nation has been one of gloom and darkness. It has been estimated that from
1994–1986, 3.9 million tons of uranium ore was mined from the Navajo Nation. The
consequence of this uranium mining has been felt locally and internationally. As of 1990,
500–600 uranium miners on Navajo Nation have succumbed to death because of lung
cancer and other illnesses associated with radon exposure. It has been estimated that at the
end of 2000 another 500–600 miners have died.”).
242 18 U.S.C. § 1151 (2006) (defining “Indian country”).243 Hardrock Mining and Reclamation Act of 2009, S. 796, 111th Cong. § 2 (2009).
244 Id. § 402(a)(1) (setting forth permissible uses of the Hardrock Minerals Reclamation
Fund) (emphasis added); see also id. § 2 (“The term ‘abandoned hardrock mine State’
means each of the States of Alaska, Arizona, California, Colorado, Idaho, Montana,
Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and
Wyoming.”).
245 Id. § 401(e).
246 It is well established that federal laws can apply to Indians and Indian country. E.g.,
Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960); see also Judith
V. Royster & Rory SnowArrow Fausett, Control of the Reservation Environment: Tribal
Primacy, Federal Delegation, and the Limits of State Intrusion, 64 WASH. L. REV. 581,
591–93 (1989) (discussing the application of the Tuscarora rule to general federal laws
including environmental laws). The early nineteenth century Supreme Court generally
held that federal laws, like state laws, were not applicable to natives within Indian country;
however, in Tuscarora, the Court held that absent a treaty or federal statute to the contrary,
federal laws of general applicability apply to natives and to native tribes, stating that “we
must hold that Congress, by the broad general terms of [section] 21 of the Federal Power
Act, has authorized the Federal Power Commission's licensees to take lands owned by
Indians, as well as those of all other citizens, when needed for a licensed project, upon the
payment of just compensation; that the lands in question are not subject to any treaty
between the United States and the Tuscaroras . . . .” Fed. Power Comm’n, 362 U.S. at
123–24. Many federal environmental laws acknowledge tribal sovereignty, for example,
the Federal Insecticide, Fungicide, and Rodenticide Act of 1972, 7 U.S.C. § 136u (2006),
and most authorize the EPA to treat Indian tribes in a manner similar to states. E.g., Clean Water Act § 518, 33 U.S.C. § 1377(e) (2006); Safe Drinking Water Act, 42 U.S.C. § 300j-
11 (2006); Comprehensive Environmental Response, Compensation, and Liability Act of
1980 (CERCLA), 42 U.S.C. § 9626; Clean Air Act, 42 U.S.C. §§ 7474, 7601; cf.


Menominee Tribe of Indians v. United States, 391 U.S. 404, 413 (1968) (holding that the
intent to abrogate or modify a treaty is not to be lightly imputed to Congress).


247 The role of state governments in environmental regulatory programs in Indian
country is essentially a very limited one. Absent an explicit authorization from Congress
granting a state regulatory authority, which rarely occurs, state environmental regulatory
programs are not valid in Indian country whether aimed at Indians or non-Indians, on tribal
lands or fee lands. See Royster & Fausett, supra note 246, at 613–59; Cal. v. Cabazon
Band of Mission Indians, 480 U.S. 202, 207 (1987) (“[S]tate laws may be applied to tribal
Indians on their reservations if Congress has expressly so provided.”); William D.
Ruckelshaus, U.S. Envtl. Prot. Agency, Policy for the Administration of Environmental
Programs on Indian Reservations 2 (Nov. 8, 1984) (emphasis added),
http://www.epa.gov/indian/pdf/indian-policy-84.pdf (setting forth the EPA’s Indian Policy
to encourage tribal self-determination, to “work directly with Indian Tribal Governments
on a one-to-one basis,” to “recognize[] Tribal Governments as sovereign entities with
primary authority and responsibility for the reservation populace,” and “[u]ntil Tribal
Governments are willing and able to assume full responsibility for delegable programs, the
Agency will retain responsibility for managing programs for reservations (unless the State
has an express grant of jurisdiction from Congress sufficient to support delegation to the
State Government)”) [hereinafter EPA Indian Policy].
248 See Montana v. United States, 450 U.S. 544, 560 (1981); see also Strate v. A-1
Contractors, 520 U.S. 438 (1997); Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001);
Nevada v. Hicks, 533 U.S. 353 (2001); Plains Commerce Bank v. Long Family Land &
Cattle Co., 128 S. Ct. 2709 (2008).
249 In Montana v. United States, the Court crafted a new general rule that states may
exercise authority over nonmembers within Indian country unless nonmembers “enter any
agreements or dealings with the [Tribe] so as to subject themselves to tribal civil
jurisdiction” or when “conduct threatens or has some direct effect on the political integrity,
the economic security, or the health or welfare of the tribe.” See 540 U.S. at 566. These
two exceptions are known as the Montana test exceptions. E.g., Plains Commerce Bank,
128 S. Ct. at 2720 (These rules have become known as the Montana exceptions, after the
case that elaborated them. By their terms, the exceptions concern regulation of “the
activities of nonmembers” or “the conduct of non-Indians on fee land.”).

1. CERCLA
The proposed HMRA creates a potential loophole in the CERCLA
federal facility cleanup program. Deceptively harmonious, the
proposed HMRA states that any activities specified in the reclamation
plan “that constitute removal or remedial action under section 101 of

[CERCLA]” shall only be conducted in concurrence with the EPA.

228
Furthermore, the DOI and the EPA would enter into a memorandum
of understanding to assure “[r]eclamation or restoration activities
under this [Act] shall not be conducted in a manner that—(A)
increases the costs or likelihood of removal or remedial actions under
[CERCLA]; or (B) to the maximum extent practicable, avoids
oversight by multiple agencies.”

229 The HMRA also states that
existing environmental laws are not superseded.230 Nevertheless,
these provisions create ambiguity and conflict between FLM agencies
and the EPA and, most disturbing, imply a repeal of CERCLA for
AMLs.231

231 Compare Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (CERCLA) § 120(e)(2), 42 U.S.C. § 9620(e)(2) (2006) (requiring an
interagency agreement for federal facility cleanups), with S. 796, § 402(g)(2) (requiring
only a memorandum of understanding for such cleanups).

A mining permittee’s operations plan need only
demonstrate that “the formation of acid mine drainage will be avoided
to the maximum extent practicable . . . .”

235 Although the proposed
HMRA explicitly states that existing environmental laws are not
superseded by that Act,236 the phrase “to the maximum extent
practicable” would effectively circumvent CWA restrictions.

SUSTAINABLE MINING PROMOTES GLOBAL PROSPERITY
S.C. § 9604(a)(4) (2006) (allowing the President to declare “a public health or
environmental emergency [when] no other person with the authority and capability to
respond to the emergency will do so in a timely manner”).

(The phrase “to the maximum extent practicable” is arbitrary.)

At Iron Mountain Mine “the formation of acid mine drainage will be beneficially exploited to the maximum extent practicable . . . .”

PATENTS FOB VEINS OR LODES HERETOFORE ISSUED.

7. Rights under patents for veins or lodes heretofore granted under previous legislation of Congress, are enlarged by the Revised Statutes so as to invest the patentee, his heirs or assigns, with title to all veins, lodes, or ledges throughout their entire depth, the top or apex of which lies within the end and side boundary-lines of his claim on the surface, as patented, extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side-lines of the claim at the surface. The right of possession to such outside parts of such veins or ledges to be confined to such portions thereof as lie between vertical planes drawn downward through the end-lines of the claim at the surface, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges, it being expressly provided, however, that all veins, lodes, or ledges, the top or apex of which lies inside such surface locations,

In 1953, The San Francisco Chemical Company reentered the old working of the Home Canyon Mine. The company drove the Cumberland crosscut and some drifting at a total expense of $120,000 in order to prove some additional reserves to their holdings across the canyon at the Waterloo Mine (Service, 1966, 1967). There was no production associated with this activity. These operations were abandoned when the new mining activity ran into the old underground workings. Nothing came of this venture and the property went idle once again. The mill facilities were removed and the mine site abandoned. Today, nothing remains at the site except a caved adit (Figure 66).

From 1879 to 1884 legal battles raged within California courts. injunctions against individual mining firms were issued, revoked, and frequently ignored. In one case, a mining company obtained an injunction from a county court to prevent the local sheriff from entering upon company property to issue the injunction of the State court. Finally, in 1884, the matter came before the Federal 9th Circuit Court in the case of Woodruff v. North Bloomfield. Judge, Lorenzo Sawyer, a former 49er, concluded the matter decisively by issuing a sweeping injunction against all hydraulic mining in the state, ordering an immediate statewide halt to the dumping of tailings into river and streambeds, effectively ending the hydraulic mining industry.

The Sawyer decision had broken no new legal ground. It was based upon the well-established common law of equity, the basic notion that it is wrong to use private property in a way that damages the property of someone else. While the case is frequently cited as one of the first examples of an environmentalist court ruling, Sawyer was not prompted by any special desire to preserve the environment, but rather to protect the rights and property of the Central Valley farmers. (6)

Nonetheless, for an era dominated by corporate interests, the case was a popular victory, as it shut down an entire industry to protect the rights of the people downstream.

Despite Sawyer's injunction, illicit small-scale operations persisted in the mountains for years. In 1893, the Federal Caminetti Act allowed hydraulic mining to return to the state, provided that the debris were captured in dams to prevent downstream damage. While some limited operations were resumed, the nine-year lapse proved fatal for the industry, as infrastructure had deteriorated and the major firms had dispersed; large-scale operations were a thing of the past, although minor hydraulicking would continue as late as the 1960s.

The sudden halt to mining operations highlighted the fact that agriculture was the future of the California economy, despite the fact that gold mining had been the principal industry in the state since 1849. But by the 1870s and 1880s, wheat farming was booming in the Central Valley and large-scale agriculture was promising far greater profits than large-scale mining. The battle over hydraulic mining pitted the new economy against the old, and agriculture proved triumphant.

 

STATUTES CITED, COMMENTED ON, AND CONSTRUED.

Act of May 18th, 1796,1 U. S. Stat. 466, pp. 48, 50, 259. May 10th, 1800, 2 U. S. Stat. 73,

pp. 48, 50. April 30th, 1802,2 U. S. Stat. 173, p. 48.

March 26th, 1804, 2 U. S. Stat.

277. pp. 48, 51. March 2d, 18J5, 2 U. S. Stat. 324.

p. 51.

April 21st, 1806, 2 U. S. Stat. 391, p. 5L

March 3d, 1807, 2 U. S. Stat 445,

pp. 1, 40, 43. March 3d, 1807, 2 U. S. Stat. 548, p. 51.

April 18th, 1818, 3 U. S. Stat. 429,

Act of Feb. 14th, 1859,11U. 8. Stat. 383, p. 49.

ay 30th, 1862,12 U. S. Stat. 410, pp. 43, 64. July 1st, 1862, 12 U. S. Stat. 489, p. 42.

July 2d, 1862,12 U. S. Stat. 803, p. 43.

July 17th, 1862, 12 U. S. Stat. 597, p. 98.

March 21st, 1864,13 U. S. Stat. 32, p. 68.

April 19th, 1864,13 U. S. Stat. 47,

pp. 49, 54. July 1st, 1864, 13 U. S. Stat. 343,

pp. 40, 45. Jan. 30th, 1865, 13 TJ. S. Stat. 567,

p. 39.

March 3d, 1865,13 U. S. Stat. 529,

pp. 40, 45. Jan. 30th, 1865,13 TJ. S. Stat. 567,

p. 39.

Feb. 27th, 1865,13 U. S. Stat. 441, p. 41.

May 5th, 1866,14 TJ. S. Stat. 43, p. 47.

July 4th, 1866, 14 U. S. Stat. 85, p. 70.

July 13th, 1866, 14 U. S. Stat. 94, p. 42.

July 23d, 1866,14 U. S. Stat. 218. p. 41.

July 25th, 1866, 14 U. S. Stat. 242, pp. 41, 47, 289. Act of July 26th, 1866,14 U. S. Stat. 25L

Sec. 1, pp. 2, 78.

Sec. 2, pp. 5, 6, 93,127.

Sec. 3, pp. 21,127.

Sec. 4, pp. 26, 99, 115.

Sec. 5, p. 257.

Sec. 6, pp. 33, 181.

Sec. 7, p. 353.

Sec. 8, p. 289.

Sec. 9, p. 259.

Sec. 10, p. 299.

Sec. 11, p. 310.
Act of 1870, 16 U. S..Stats. 217.

Sec. 9, p. 243.

Sec. 12, pp. 228, 229, 236.

Sec. 13, pp. 230, 231.

Sec. 14, p. 153.

Sec. 16, pp. 230, 236.

Sec. 17, pp. 259, 289. Act of May 10th, 1872, 17 TJ. S Stat. 92.

Sec. 1, p. 78.

Sec. 2, p. 99.

Sec. 3, pp. 107, 108.

Sec. 4, p. 110.

8ec. 5, pp. 116, 117,122, 123.

Sec. 6, pp. 127,128,159.

Sec. 7, pp. 94, 181, 206, 208.

Sec. 8, p. 243.

Sec. 9, p. 354.

Sec. 10, pp. 38, 230.

Sec. 11, pp. 144,151, 231, 233.

Sec. 12, p. 243.

Sec. 13, pp. 153, 334.

Sec. 14, p. 247.

Sec. 15, p. 253.

Sec. 16, p. 289.

Feb. 18th, 1873, 17 U. S. Stat. 465, p. 39. March 1st, 1873, 17 U. S. Stat. 92, p. 115.

March 3d, 1873, 17 U. S. Stat. 607, pp. 340-352

June 6th,' 1874, 17 U. S. Stat. 92, p. 115. Feb 11th, 1875, 18 U. S. Stat. 315, pp.

110, 115. 117, 121. March 3d, 1875, 18 U. S. Stat. 474, p.

49.

March 3d, 1875, 18 U. S. Stat. 470, p. 209.

May 5th, 1876, 19 U. S. Stat. 52.
Jan. 12th, 1877,19 U. S. Stat.
Revised Statutes of the United States:
Sec. 910, p. 354.

Sec. 2258, pp. 38, 57, 47, 48, 302.

Sec. 2289, pp. 48, 57, 302.

Sec. 2318, p. 38.

Sec. 2319, pp. 78, 79.

Sec. 2320, pp. 99, 231.

Sec. 2321, pp. 93, 94, 97.

Sec. 2322, pp. 107, 108.

Sec. 2323, pp. 110, 115.

Sec. 2324, pp. 110, 115, 116, 119,

121,122, 123. Sec. 2325, pp. 79, 93, 127, 159, 161,

182, 231, 243.
Sec. 2326, pp. 180, 181, 206, 207,

208,227.
Sec. 2327, p. 243.
Sec. 2328, p. 353.
Sec. 2329, pp. 78, 228.
Sec. 2330, pp. 228, 232, 237.
Sec. 2331, pp. 119, 229, 230, 237,

232

Sec. 2332, pp. 230, 239.

Sec. 2333, pp. 47,144,151,231,233.

Sec. 2334, pp. 230, 243.

Sec. 2335, pp. 94,153, 362.

Sec. 2336, pp. 247, 250.

Sec. 2337, p. 253.

Sec. 2338, p. 257.

Sec. 2339, pp. 258, 259, 267.

Sec. 23+0, pp. 259, 289.

Sec. 2341, p. 299.

Sec. 2342, pp. 310, 318.

Sec. 2343, p. 353.

Sec. 2344, p. 289.

Sec. 2345, p. 39.

Sec. 2346, p. 39.

Sec. 2347, p. 340.

Sec. 2348, p. 340.

Sec. 2349, p. 341.

Sec. 2350, p. 341.

Sec. 2351, p. 342.

Sec. 2352, p. 342.

Sec. 2386, p. 304.

Sec. 2392, pp. 304, 306.

Sec. 2406, p. 243.

Sec. 910, p. 354. Stephenson v. Smith, 7 Mo. 610, p. 139. Stockton & V. B. R. Co. v. City of

Stockton, 41 Cal. 147. p. 264. Stoddard o. Chambers, 2 How. 317, pp 63, 179.

Strawbridge v. Curtiss, 3 Cranch, 267 p. 92.

Summers v. Dickinson, 9 Cal. 554, p. 64. Sutro Tunnel Co. In re, D. A. C. p. 291.

miscellaneous, 36.
Acts of Congress—relative to mines previous to Act of 1866, 46.
Adjustment—of surveys—Act of 1866, 26.
Adverse occupation—as against a patent, 138.
See Water Rights, Vested Rights, Easements, Drainage, Canals
And Ditches, Sutro Tunnel Act.
homesteads and town sites, 299-309.
By Sec. 2 of the Act of July 13th, 1866, (14 State. 94) to aid in the construction of a railroad from Folsom to Placerville, in California, ten alternate sections per mile, designated by odd numbers, on each side of the line, " not containing gold or silver," were granted.

The proviso is added that the word " mineral" shall not be held to include iron or coal.

On the 30th of January, 1865, a joint resolution, reserving mineral lands from the operation of all acts of the first session of the Thirty-eighth Congress, was passed. (13 Stats. 567.)

But Fletcher v. Peck, 6 Cranch, 87, decides that where aright vests by legislative grant, even in the case where a fraud was committed by the party interested in obtaining it, a repeal of the act cannot divest the right; and certainly a legislative declaration could not effect it. While, therefore, such a resolution might be important as showing the intention of Congress, if an act had actually granted mineral land, and there was no room for construction, it would probably be inoperative. 1

The Government never parted with the right to the mines. — It was said, in U. S. v. Parrott, 1 McAllister, C. C. 271, (which was a branch of the celebrated Castillero litigation, relative to the New Almaden quicksilver mine) that neither the policy nor legislation of a State could deprive the United States of any legal right they had to the mines.

The Act of 1850, (9 U. S. Stats. 452) admitting California into the Union, expressly provided that the people of that State, through their legislature, or otherwise, should never interfere with the primary disposal of the public lands within its limits, and should pass no law and do no act whereby the title of the United States to, and right to dispose of, said lands should be impaired or questioned. Congress had never parted with the

1 Yale's Mining Claims. 329.

mines nor the right to dispose of them, but had a right at any moment to dispose of them. 1

Reservations in grants to the States. —The Pre-emption Act of 1841, granting to certain States therein named, and to all new States afterward admitted, 500,000 acres of land, excluded reserved lands, salines, and known mines from sale. It was held, in California, that the question as to whether mineral or agricultural land prevailed, having been ascertained by the officers of the State, and the selection approved by the United States, a State patent would hold the land. 2

By the seventy-two section grant for the use of a seminary of learning, and by the ten-section grant for public buildings, (see Sees. 12 and 13, Act of March 3d, 1853, 10 Stats. 248) mineral lands and reserved lands were reserved from location.

So, also, with the Act of May 30th, 1862, extending the preemption laws, Sec. 7 (12 Stats. 410).

And the Act of July 2d, 1862, (12 Stats. 503) for mining colleges.

The Illinois lead case. —Digging for minerals on the public domain of the United States, before the passage of the Mining Act of 1866, was a trespass, entitling the Government to damages in an action at law, and was such waste as might have been restrained by injunction. 3

By an Act of the 3d of March, 1807,2 U. S. Stats. 445, the lead mines of Indiana Territory, and afterward the State of Illinois, were reserved from sale, and the President authorized to lease them for a period not exceeding three years, and a grant of land, containing a lead mine discovered before the sale, was declared to be fraudulent and void; and, in U. S. v. Gear, 3 How. 120, the defendant in a civil action was held guilty of trespass, in mining for lead upon land in the State of Illinois, and an injunction was granted restraining him from the commission of waste.

By the fifth section of the act, the lead mines were reserved from sale. By the Act of June 26th, 1834, to create additional land districts in the State of Illinois and elsewhere, in connection with the Pre-emption Acts of 1830 and 1832, all the lands described in the Act of 1834 became the subject of sale and pre

[ocr errors]

emption; and the question in Gear's case was, whether the Act of 1834 repealed the reservation contained in the Act of 1807, and subjected the land in question, containing lead ore, to preemption and sale. The Court held that there was no repeal, and that the land was not open to settlement by reason of the reservation ; besides, the right of the Government, as owner of the land, to restrain the trespass, was complete and perfect. 1

Implied license. —That there was ever an implied license from the Government to mine for the precious metals upon the public land, by reason of its indulgence, if not the direct encouragement extended to the mining population, was always denied in the Courts of the United States. The defendant, in the case of U. S. v. Parrott, claimed this license, and through it, immunity from damages for waste, but the claim was denied. 2

The sale of lead mines. —By an Act of July 11th, 1846, (9 Stats. 37) Congress authorized the sale of the reserved lead mines in the States of Illinois and Arkansas, and the then Territories of Wisconsin and Iowa, at an increased rate of $1.25 per acre, as the minimum at public sale, but still excepting the lead mines from the operation of the pre-emption laws, until after they had been offered at public sale.

By the Act of March 3d, 1847, (9 Stats. 179) to create an additional land district in Wisconsin, pre-emption was granted to parties in the possession of lead mines by occupation, through discovery, or lease, under the United States.

By the Act of March 1st, 1847, (9 Stats. 146) the copper mines of Michigan were ordered to be sold, giving certain preferences to lessees under the Government, and persons in possession.

But by the Act of Sept. 26th, 1850, (9 Stats. 472) both of these were repealed, and this placed the mineral lands within these districts upon the same footing, as to sale, private entry, and pre-emption, as other public lands of the United States, sav. ins certain vested rights. 3

1 See Cotton v. U. S. 11 How. U. S. 229; Yale's Mining Claims, 331. 'U. S. v. Parrott, 1 MoAll. 0. C. Rep. 271; U. S. v. Castillero, 2 Black. U. a 17; Yale's Mining Claims, p. 333. 1 See Cooper o, Robert*, }S Hpw. 173; Higgjns v. Houghton, 26 Gal. 262.

Sale and pre-emption of coal lands. —Coal lands having been reserved under the General Pre-emption Act of 1841, an Act of July 1st, 1864, (13 Stats. 343) for the disposal of coal lands and town property on the public domain, authorized tracts embracing coal fields, or coal beds—and which by that act and past legislation were excluded, as mines, from ordinary private entry—to be sold.

By an amendatory Act of March 3d, 1865, (13 Stats. 529) citizens of the United States, who at that date were actually engaged in bona fide coal mining, on public lands not reserved for purposes of commerce, had a pre-emption to 160 acres of land, and might enter the same.

Grants from Indian Tribes in America. —The character of the grant of mines from Indian tribes came up for discussion in the important case of Chouteau v. Moloney, (16 How. U. S. 203) which was an action in the nature of ejectment for a large tract of land, including the whole city of Dubuque, Iowa, and which tract was formerly a part of the Louisiana territory acquired by the United States from France under the Treaty of Paris of 1803. It was admitted that the defendant had all the title that the United States possessed under the treaty. But the i>laintiff claimed that he had acquired title to the land before the treaty ; and, as private property was excepted from the cession to the United States by the terms of the treaty, the Government of the United States never had any title to give, nor any interest that could pass by its patent.

It is to be remembered that the French had retained possession of Louisiana up to 1762, when they ceded it to Spain; but in 1800, Bonaparte, then First Consul, induced the Spanish Government to rctrocede it to France, and it remained French territory until the cession to the United States in 1803.

During the interval of time when it was the property of Spain— viz, in 1788—the tribe of Indians called the Foxes sold to the person under whom plaintiff claimed, a permit to work at a certain mine as long as he pleased, and also sold and abandoned to him all the adjacent coast and contents of the mine. In 1796, the grantee or licensee presented his petition to the governor of the territory, under the Spanish rule, for a confirmation of the sale, and a grant of the mine and land, and the governor made confirmation and grant accordingly. The question, therefore, was, did the title then pass ?

The question was to be decided under the Spanish laws and regulations then in force, and under those laws and regulations it was held, in the first place, that the Indian tribes never had any right to interfere with or dispose of the mines within the dominion of Spain. The right of the Indians, as recognized by the latter country, extended to occupancy, but never to sale of the territory.

In that case, it was also held that the words of the grant from the Indians did not show an intent to part with anything more than a mining privilege, and that the governor, in his subsequent grants, only intended to confirm such rights as the Indians had previously given; and, further, that the proceedings to obtain the grant for the lands were irregular under the Spanish laws, and no complete title passed. The title confirmed and granted was good as a permission to dig and work the mines, but nothing more. 1

By Article 4 of the Treaty, proclaimed January 17th, 1865, concluded on the 12th of October, 1863, between the United States and the Shoshone-Goship bands of Indians at Tuilla Valley, Utah, (now a part of Montana) it was provided that the country of the tribe might be explored or prospected for gold and silver, and other minerals and metals, and when mines were discovered that they might be worked, etc. (13 Stats. 682.) This is the first declaration to be found in the laws of the United States, authorizing, with the consent of Indian chiefs, the digging of gold upon public land—if such a provision can be called an authorization.

Further acts of Congress. —By the Act of February 27th, 1865, it was provided that no possessory action between individuals in any of the Courts of the United States, for the recovery of any mining title, or for damages to any such title, should be affected by the fact that the paramount title to the land on which the mines were was in the United States, but each case was to be adjudged by the law of possession. (13 Stats. 441.) This section is general in its terms, and applies to all Federal Courts.

1 Chouteau v. Moloney, 16 How. 2

The Act of May 5th, 1866, Section 2, (14 Stats. 43) concerning the boundaries of the State of Nevada, recognized and protected possessory rights to mining claims in Nevada, but proceeded further to state that the act was not to be construed as granting a title in fee to any mineral lands held by possessory titles in the mining States and Territories.

Next came the Act of July 25th, 1866, (14 Stats. 242) granting the right of way, and other privileges, to Adolph Sutro and His assigns, and commonly known as the Sutro Tunnel Act. This was the first act of Congress which, in express terms, granted a mining privilege on public land to any individual, or the public at large.

§ 32. Excepting clauses in placer and agricultural patents.—A patent for a placer claim conveys " all valuable mineral and other deposits within the boundaries thereof," if no veins or lodes are claimed or known to exist within the exterior limits of the claim patented at the date of patent. In cases arising under the eleventh section, 1 an excepting clause is inserted as follows: "That, should any other vein, or lode, of quartz, or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposit, be claimed or known to exist within the above described premises at the date hereof, the same is expressly excepted and excluded from these presents."

In all agricultural land patents the following clause is inserted, viz: " Subject to any vested and accrued water-rights for mining, agricultural, manufacturing, or other purposes, and rights to ditches and reservoirs used in connection with such waterrights as may be recognized and acknowledged by the local customs, laws, and decisions of Courts, and also subject to the right of the proprietor of a vein or lode to extract and remove his ore therefrom should the same be found to penetrate or intersect the premises hereby granted, as provided by law."

No title to a mining claim can be secured under an agricultural land patent. (See Sec. 2258, Rev. Stat.) 2

i Rev. Stat. U. S. Sec. 2333.

a Decision of Commissioner, July 29th, 1875, 2 Copp's Land-owner, 82.

§ 33. Saline lands.—These lands are not subject to bcmeBtead or pre-emption entry. (See Sees. 2258 and 2289, Rev. Stat. U. S.) The policy of the Government has been uniform since the inauguration of the land system, to reserve from sale salt-springs.

The Act of May 18th, 1796, (1 U. S. Stat. 466) requires every surveyor to note in his field-book the true situation of all mines, salt-licks, and salt-springs, and reserves for future disposition by the United States every salt-spring which may be discovered, together with the section of one mile square which in eludes it.

The Act of May 10th, 1800, (2 U. S. Stat. 73) continued these reservations, and authorized sales to be made of the public lands by the Register and Receiver, excluding the sections reserved by the above mentioned act.

The Act of March 26th, 1804, (2 U. S. Stat. 277) providing for the disposal of the public lands in the Indiana Territory, declares that " the several salt-springs in the said Territory, together with as many contiguous sections to each as shall be deemed necessary by the President of the United States, shall be reserved for the future disposal of the United States."

It has been the policy of the Government to reserve these salt-springs and lands from sale, as is evidenced by the text of the different acts regulating the disposal of the public lands.

The Act of April 30th, 1802, (2 U. S. Stat. 173) admitting the State of Ohio, granted to the State certain salt-springs.

The Act of April 18th, 1818, (3 U. S. Stat. 429) authorizing the admission of the State of Illinois, grants all the saltsprings and the lands reserved for the use of the same to the State.

The Act of March 6th, 1820, (3 U. S. Stat. 545) authorizing the people of Missouri to form a State government and for the admission of the State, provides " that all salt-springs, not exceeding twelve in number, with six sections of land adjoining to each, shall be granted to the said State for the use of said State. * * * * Provided, that no salt-spring, the right whereof now is, or hereafter shall be, confirmed or adjudged to any individual or individuals, shall by this section be granted to the said State."

The same provision is made in the acts providing for the admission of the following named States, as was provided in case of Missouri, viz: Arkansas, 5 U. S. Stat. 58; Michigan, 5 IT. S. Stat. 59 ; Florida, 5 U. .S. Stat. 789; Iowa, 5 U. S. Stat. 789 ; Wisconsin, 9 U. S. Stat. 58; Minnesota, 11 U. S. Stat. 166; Oregon, 11 U. S. Stat. 383; Kansas, 11 U. S. Stat. 269; Nebraska, 13 U. S. Stat. 47.

The Act approved March 3d, 1875, (18 U. S. Stat. 474) enabling the people of Colorado to form a State government, and for the admission of the State into the Union, has the same provisions in regard to salt-springs as those contained in the Missouri act,

The Supreme Court of the United States, in the case of Morton v. Nebraska, 21 Wall. 660, construed the proviso in the grant to Nebraska of salt lands. This proviso reads the same in the Nebraska and Colorado acts, viz: " Provided, that no salt-spring or lands, the right whereof is now vested in any individual or individuals, or which hereafter shall be confirmed or adjudged to any individual or individuals, shall by this act be granted to said State."

The State of Nebraska is within the limits of the Louisiana purchase. That part of Colorado which embraced the saltsprings in controversy lies within the boundaries of the territory ceded by Mexico to the United States.

The Court held that " the purpose Congress had' in view is to be found in the unbroken line of policy in reference to saline reservations, from 1796 to the date of this act. To perpetuate this policy, and apply it equally to all the lands of the three Territories, (Kansas, Nebraska, and New Mexico) was the controlling consideration for the incorporation of the section (Sec. 4, July 22d, 1854,10 U. S. Stat. 308) ; and although the words of the section are loose and general, their meaning is plain enough when taken in connection with the previous legislation on the subject pf salines. It cannot be supposed, without an express declaration to that effect, that Congress intended to permit the sale of salines in Territories soon to be organized into States, and thus subvert a long established policy, by which it had been governed in similar cases." W. C—4.

Where it is not shown that any valuable deposit of salt is found upon the land, but the lands appear to be valuable only on account of salt-springs, the office has no authority to dispose of the tracts, either as agricultural or mineral lands. Accordingly, certain salt-springs in Colorado, " with six sections adjoining, and as contiguous as may be to each," were reserved, in order that Colorado might be placed on an equal footing with other States in the matter of salt-spring reservations. Filings thereon were rejected. 1

The status of saline lands and salt-springs was fully considered by the Supreme Court of the United States in the case of Morton v. Green ct al. and the State of Nebraska, already adverted to. 2 The action was ejectment, plaintiff's title being based upon locations of certain warrants. The real defendant, the State of Nebraska, insisted that the locations were without authority of law, because the lands on which the warrants were laid were saline lands, and, therefore, not subject to entry. Justice Davis, delivering the opinion of the Court, said: " The policy of the Government, since the acquisition of the northwest territory and the inauguration of our land system, to reserve salt-springs from sale, has been uniform. The Act of May 18th, 1796, (1 Stats. 464) the first to authorize a sale of the domain ceded by Virginia, is the basis of our present rectangular system of surveys. That act required every surveyor to note in his field-book the true situation of all mines, salt-licks, and salt-springs; and reserves for the future disposal of the United States a well-known saltspring on the Scioto River, and every other salt-spring which should be discovered.

" These reservations were continued by the Act of May 10th, 1800, (2 Stats. 73) which created land districts in Ohio, with registers and receivers, and authorized sales by them; the preceding act having recognized the governor of the northwest territory and the Secretary of the Treasury as the agents for the sale of the lands. And the same policy was observed when provision was made in 1804 for the disposal of the lands in the Indiana Territory—embracing what are now Illinois and Indi

1 Hall v. Litchfield. Decision of Acting Commissioner, March 2d. 1870, 2 Copp's Land-owner, 179. a 21 Wall. U. S. 060.

ana. (2 Stats. 277.) It was then declared ' that the several salt-springs within said Territory, with as many contiguous sections to each as shall be deemed necessary by the President, shall be reserved for the further disposal of the United States.' Without referring particularly to the different acts of Congress on the subject, it is enough to say that all the salines in the Virginia cession were reserved from sale, and afterward granted to the several States embraced in the ceded territory. Congress, in the disposition of the public lands in the Mississippi Territory, (2 Stats. 548; 3 Stats. 489) and in the Louisiana purchase, preserved the policy which it had applied to the country obtained from Virginia. Over all the territory acquired from France the general land system was extended. The same rules which were prescribed by law for the survey and sale of lands east of the Mississippi River were transferred to this new acquisition. (2 Stats. 324.) At the first sale of lands in this region which the President was authorized to make, salt-springs, and lands contiguous thereto, were excepted. (2 Stats. 391.) And this exception was continued when, in 1811, a new land district was created. Prior to this time, no portion of the country north of the State of Louisiana had been brought into market. The Act of March 3d, 1811, authorized this to be done, but the President, in offering the lands for sale, was directed to except salt-springs, lead mines, and lands contiguous thereto, which were reserved for the future disposal of the States to be carved out of this immense territory, which included the present State of Nebraska. (3 Stats. 665, Sec. 10.) And so particular was Congress not to depart from this policy, that in giving lands, in 1815, to the sufferers by the New Madrid earthquake, every lead mine and salt-spring were excluded from location. Indeed, in all the acts creating new land districts, in the territory now occupied by the States of Arkansas and Missouri, the manner of selling the public lands is not changed, nor is a sale of salines in any instance authorized. On the contrary, they incorporate the same reservations and exceptions which are contained in the Act of March 3d, 1811. In all of them, the Act of 18th May, 1796, is the rule of conduct for all Surveyors-General and their deputies, as the Act of 10th May, 1800, is the rule for all reg isters, requiring them to exclude from sale all salt springs, with the sections containing them

" In this state of the law of saline reservations, the Act of 22d July, 1854, was passed. It is by nor means certain that the Act of March 3d, 1811, did not work the reservation of every saline in the Louisiana purchase ; but, without discussing this point, it is enough to say that the Act of 1854 leaves no doubt of the intention of Congress to extend to the territory embraced by the States of Kansas and Nebraska, the same system that had been applied to the rest of the Louisiana purchase. There was certainly no reason why a long established policy, which had permeated the land system of the country, should be abandoned. On the contrary, there was every inducement to continue, for the benefit of the States thereafter to be organized, the policy which had prevailed since the first settlement of the northwestern territory. In the admission of Ohio and other States, Congress had made, liberal grants of land, including the saltsprings. This it was enabled to do by reserving these springs from sale. Without this reservation, it is plain to be seen there would have been no springs to give away, for every valuable saline deposit would have been purchased as soon as it was offered for sale. An intention to abandon a policy which had secured to the States admitted before 1854 donations of great value, cannot be imputed to Congress, unless the law on the subject admits of no other construction.

"But the Law of 1854, (10 Stats. 308) instead of manifesting an intention to abandon this policy, shows a purpose to continue it. It was the first law under which lands were surveyed in Nebraska, offered at public sale, and so made subject to private sale by entry. By it, Surveyors-General for New Mexico, and for Kansas and Nebraska, were appointed, with the usual powers and duties of such officers. And, although there are provisions relating to New Mexico applicable to that Territory alone, yet the leading purpose of this act was to bring into market, as soon as practicable, the lands of the United States in all of these Territories. In New Mexico this could not be done as soon as in Kansas or Nebraska, on account of the policy adopted of donations to actual settlers who should remove there before the first of January, 1858, and because of the necessity of segregating the Spanish and Mexican claims from the mass of the public domain. For this reason, doubtless, local land offices were not created in New Mexico, but they were in Kansas and Nebraska, and registers and receivers appointed, with the powers and duties of similar officers in other land offices of the United States. And the President was authorized to cause the lands, when surveyed, to be exposed to sale from time to time, in the same manner and upon the same terms and conditions as the other public lands of the United States. If there were no other provisions in the law than we have enumerated, we should hesitate to say, in view of the limitation on sales prescribed by law wherever public lands had been offered for sale, that they did not of themselves work a reservation of the land in controversy. In conducting the public sales the register always reserved salines, as it was his duty to do, when marked on the plats, and this was never omitted, except by the neglect of the Surveyors-General or their deputies. But the fourth section of the act removes all doubt upon that subject. That section declares that none of the provisions of this act shall extend to mineral or school lands, salines, military or other reservations, or lands settled on or occupied for purposes of trade and commerce.

" It is contended that this section applies to the donations, conceded in the preceding sections, to actual settlers in New Mexico. But why make this restriction ? To do it would require the importation of the word 'foregoing,' so that the section would read : None of the (foregoing) provisions shall extend to salines or mineral lands. There is no authority to make this importation, and in this way subtract from the general words of the section. The language of the section is imperative, and leaves no room for construction. Besides, why should an intention be imputed to Congress to exclude actual settlers from saline lands, but leave them open to private entry by speculators? The legislation upon the subject of public lands has always favored the actual settlers, but the construction contended for would discriminate against them, and in favor of a class of persons whose interests Congress has never been swift to promote.

" Apart from this, however, the purpose Congress had in view is to be found in the unbroken line of policy in reference to saline reservations, from 1796 to the date of this act. To perpetuate this policy, and apply it equally to all the lands of the three Territories, was the controlling consideration for the incorporation of the section, and although the words of the section are loose and general, their meaning is plain enough when taken in connection with the previous legislation on the subject of salines. It cannot be supposed, without an express declaration to that effect, that Congress intended to permit the sale of salines in Territories soon to be organized into States, and thus subvert a long-established policy by which it had been governed in similar cases. If anything were needed to show that the fourth section did reserve saline from sales, it can be found in the Act of the 3d of March, 1857, (11 Stats. 186) rearranging the land districts in Nebraska. This act excepts from sale such lands ' as may have been reserved.' This is a declaration that lands had been reserved, and obviously it is a legislative construction of the fourth section of the Act of 1854, for nowhere else, except by implication, had there been reservations of any sort in the Territory of Nebraska.

" Besides this, the Nebraska Enabling Act of April 10th, 1864, (13 Stats. 47) affords still further evidence that the Act of 1854 was intended to reserve salines. The purpose of reserving them was to preserve them for the use of the future States, and no State had been organized without a grant of salt-springs. In some of the States, the grant was of all within their boundaries, but on the admission of Missouri, and since, the number was limited to twelve. This number, with a certain quantity of contiguous lands, were granted to Nebraska on her admission. In doing this, Congress must have assumed that the springs had been reserved from sale, for if this had not been done, the presumption is, there would have been nothing for the grant to operate upon. It may be true that lands only fit for agriculture will remain a long time unentered, but this would never be the case with lands whose surface was covered over with salt. It would be an idle thing to make a grant of such lands, if there had been a previous right of entry conceded to individuals. This was in the mind of Congress, and induced the reservation in the Act of 1854, by means of which Ne braska could be placed on an equal footing with other States in like situation.

" But it is said the locations in question are ratified by the proviso to the section granting the salt-springs. This proviso was as follows: ' Provided, that no salt-spring or lands, the right whereof is now vested in any individual or individuals, or which hereafter shall be confirmed or adjudged to any individual or individuals, shall by this act be granted to said State.' This provision, with an unimportant change in phraseology, was first introduced into the Enabling Act for Missouri, (3 U. S. Stats. 547, Sec. 6) and exactly similar provisions with the one in question were inserted in the acts relating to Arkansas and Kansas. (5 U. S. Stats. 58; 12 Id. 126.) The real purpose of the proviso is to be found in the situation of the country embraced in the Louisiana purchase. The Treaty of Paris ef April 30th, 1803, by which the ' Province of Louisiana ' was acquired, stipulated for the protection of private property. This comprehended titles which were complete as well as those awaiting completion, (Soulard v. United States, 4 Peters, 511) and Congress adopted the appropriate means for ascertaining and confirming them. They were numerous and of various grades, and covered town sites and every species of lands. In Missouri, as the records of this Court show, they were quite extensive ; and when she was admitted into the Union, many of these titles were perfect, and still a large number imperfect. In this condition of things, Congress thought proper, in granting the salt-springs to the State, to say that no salt-springs, the right whereof now is or shall be confirmed or adjudged to any individual, shall pass under the grant to the State. Whether this legislation was necessary to save salt-springs claimed under the French treaty, it is not important to determine, but manifestly it had this purpose in view and nothing more. It could not refer to salt-springs not thus claimed, because all entry upon them was unlawful, on account of previous reservation. It speaks of confirmations which had been made and those which were awaiting Governmental action, and in this condition were all the titles the United States were bound to protect.

" Although the words employed in the first division of the proviso to the saline grant to Nebraska are not the same as those used in the Missouri grant, they mean the same thing. There can be no difference between a right which has been confirmed and one which is now vested. Both are perfect in themselves, and refer to completed claims, while the last division in each proviso has reference to claims in course of completion, but not finally passed upon. This proviso can have little significance in the Enabling Act of Nebraska, nor, indeed, in many other enabling acts, but Congress doubtless thought proper to introduce it out of the superabundance of caution, as there could be no certainty that in purchased or conquered territory, however remote from settlement, there might not be private claims protected by treaty stipulations to which it would be applicable. It cannot be invoked, however, for the protection of these plaintiffs. When a vested right is spoken of in a statute, it means a right lawfully vested, and this excludes the locations in question, for they were made on lands reserved from sale or entry. If Congress had intended to ratify invalid entries like these, they would have used the language of ratification. Instead of doing this, the language actually employed negatives any idea that Congress intended to give validity to any unauthorized location on the public lands.

" The pre-emption act of the 4th of September, 1841, (5 Stats. 456) declares that ' no lands on which are situated any known salines or mines shall be liable to entry,' differing in this respect from the Acts of 1796 and 1854, which reserve every ' salt-spring' and ' salines.' The salines in this case were not hidden, as mines often are, but were so incrusted with salt that they resembled ' snow-covered lakes,' and were consequently not subject to pre-emption. Can it be supposed that a privilege denied to pre-emptors in Nebraska was conceded in the Act of 1864 to persons less meritorious ?

" It appears, by the record, that on the survey of the Nebraska country, the salines in question were noted on the field-books, but these notes were not transmitted to the registers' general plats, and it is argued that the failure to do this gave a right of entry. But not so, for the words of the statute are general, and reserve from sale or location all salines, whether marked on the plats or not.

" What effect the statute might have on salines hidden in the earth, not known to the surveyor or the locator, but discovered after entry, may become a question in another case. It does aot arise in this. Here the salines were not only noted on the 6eld-books, but were palpable to the eye. Besides this, the locators of the warrants, before they made their entries, were told of the character of the lands. Indeed, it is quite clear that the lands were entered solely on account of the rich deposits of salt which they were supposed to contain.

" It does not strengthen the case of the plaintiffs that they obtained certificates of entry, and that patents were subsequently issued on these certificates. It has been repeatedly decided by this Court that patents for lands which have been previously granted, reserved from sale, or appropriated, are void. (Polk u. Wendell, 9 Cranch, 99 ; Minter v. Cromelin, 18 Howard, 88 ; Reichart v. Felps, 6 Wallace, 160.) The executive officers had no authority to issue a patent for the lands in controversy, because they were not subject to entry, having been previously reserved, and this want of power may be proved by a defendant in an action at law. (Minter v. Cromelin, Supra.)"

The judgment of the Supreme Court of Nebraska was affirmed.

The fact that a salt-spring existf upon a quarter-section withdraws the tract from the operation of the Homestead and Preemption Laws. A hearing to prove that the land is agricultural was not permitted where the township plats showed the existence of the salt-spring, and it was not alleged that the Surveyor-General's return was incorrect in regard to the location of the springs. 1

1 See Sec. 2258, 2289, Rev. St.; Decision of Commissioner, Nov. 5th, 1875 ; 2 Copp's Land-owner, 131. Since the above decisions were rendered, an act of Congress has been passed providing for the sale of saline lands. The text is asfollows: "An Act providing for the sale of saline lands. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever it shall be made appear to the register and receiver of any land office of the United States that any lands within their district are saline in character, it shall be the duty of said register and said receiver, under the regulations of the General Land Office, to take testimony in reference to such lands to ascertain their truo character, and to report the same to the General Land Office ; and if, upon such testimony, the Commissioner of the General Land Office shall find that such lands are saline and incapablo of being purchased under any of the laws of the United States relative to the public domain, then, aud in such case, such lands shall be offered for sale by public auction at the local land office of the district in which the same shall be situated, under such regulations as shall be prescribed by the Commissioner of the General Laud

§ 34. School lands containing minerals. —The question as to the ownership (State or National) of school lands has recently been passed upon by the Supreme Court of the United States . in a very important case, 1 that of Sherman v. Buick, in which the plaintiff in error, who was plaintiff in the action, brought his suit in the proper Court of the State of California to recover possession of a piece of land of the defendant in error. On the trial, the plaintiff asserted title under a patent from the United States, of the date of May 15th, 1869, and the defendant under a patent from the State of California, of the date of January 6th, 1869. The land in question was a part of Sec. 36, township 5 south, range 1 east, Mt. Diablo Meridian, and the title of the State was supposed to rest on the Act of Congress of March 3d, 1853, (10 U. S. Stats. 246) granting to said State for school purposes, with certain limitations, every sixteenth and thirtysixth section, according to the surveys thereafter to be made of the public lands.

The plaintiff, in aid of his patent, and to defeat the title of the State under the Act of 1853, offered to prove that he settled upon the land described in his patent as early as December 20th, 1862, and had ever since resided on it; that the land was not surveyed until August 11th, 1866, and that he filed and proved his pre-emption claim to it, November 6th, 1866, and paid for and received a patent certificate, on which his patent was duly issued.

Office, and sold to the highest bidder for cash, at a price not less than one dollar and twenty-five cents per acre ; and in case said lands fail to sell -when so offered, then the same shall be subject to private sale, at such land office, for cash, at a price not less than one dollar and twenty-five cents per acre, in the same manner as other lands of the United States are sold ; Provided, That the foregoing enactments shall not apply to any State or Territory which has not had a grant of salines by act of Congress, nor to any State which may have had such a grant, until cither the grant has been fully satisfied, or the right of selection thereunder has expired by efflux of time. But nothing in this act shall authorize the sale or conveyance of any title other than such as tho United States has, and the patents issued shall be in tho form of a release and quit-claim of all title of the United States in such lands.

" Sec. 2. That all executive proclamations relating to the sales of Public Lands shall be published in only one newspaper, tho same to bo printed and published in the State or Territory where the lands are situated, and to be designated by tho Secretary of tho Interior.

"Approved, January 12, 1877."

1 No. 43, Oct. 3d, 1876, 3 Copp's Land-owner, 135, to be reported in about the 3d or 4th vol. of Otto, 93 or 94 U. S. R.

The Court excluded this evidence and gave judgment for defendant, and the Supreme Court of California affirmed that judgment.

The contest in the case was between a patent of the United States and a patent of the State of California, and the decision required a construction of the Act of 1853, so far as to determine which of these patents conveyed the real title under the facts offered in evidence.

The statute is entitled " Au Act to provide for the survey of the public lands in California, the granting of pre-emption rights therein, and for other purposes." 1

It is the first act of Congress which extends the land system of the United States over the newly acquired territory of that State. It provided for surveys, for sales, for the protection of the rights of settlers, miners, and others; and among the other purposes mentioned in the caption, for the donations to the State of lands for schools and for public buildings.

The importance of the subject is such that the following full extract is given from the opinion of Mr. Justice Miller, who delivered the opinion of the Court :"

" The sixth and seventh sections of the act are of chief importance in the matter under consideration; the preceding sections having provided for surveying all the lands. The clause of the sixth section, in which the grant to the State of the sixteenth and thirty-sixth sections for school purposes is found, reads as follows: ' All the public lands in the State of Califor nia, whether surveyed or unsurveyed, with the exception of sections sixteen and thirty-six, which shall be, and hereby are, granted to the State for the purposes of public schools in each township ; and with the exception of lands appropriated under this act, or reserved by competent authority, and excepting, also, the lands claimed under any foreign grant or title, and the mineral lands, shall be subject to the pre-emption laws of fourth of September, eighteen hundred and forty-one, with all the exceptions, conditions and limitations therein, except as is herein otherwise provided; and shall, after the plats thereof are returned to the office of the register, be offered for sale, after six

1 10 U. S. Stats. 244. See, also, Huff v. Doyle, No. 061, Oct. Term, 1876, to be reported in 93 or 94 U. S. R. Supreme Court of the United States.

months' public notice in the State of the time and place of sale under the laws, rules, and regulations now governing such sales, or such as may be hereafter prescribed.' Then come several provisos which we will consider hereafter, but we pause here to note the effect of this granting and excepting clause on the lands which should, by the future surveys of the Government, be found to be sections sixteen and thirty-six.

" It is obviously the main purpose of the section to declare, that after the lands are surveyed they shall be subject to sale according to the general land system of the Government; and secondly, to subject them to the right of pre-emption as defined by the Act of 1841, and to extend that right to lands unsurveyed as well as to those surveyed. But here it seemed to occur to the framer of the act, that California, like other States in which public lands lay, ought to have the sixteenth and thirty-sixth sections of each township for school purposes, and that they should not be liable to the general pre-emption law as other public lands of the Government would be. lie accordingly injected into the sentence the grant of these lands to the State and the exception of them from the operation of the Preemption Law of 1841, together with other lands which in like manner were neither to be sold nor made subject to pre-emption. These were lands appropriated under the authority of that act, or reserved by competent authority ; lands claimed under any foreign grant or title, (i. e., Mexican grants) and mineral lands ; all these were by this clause exempted from sale and from the general operation of the pre-emption laws. •

" But the experience of the operation of our land system in other States suggested that it might be ten or twenty and in some instances thirty years before all the surveys would be completed and the precise location of each school section known. In the meantime, the State was rapidly filling up by actual settlers on these lands, whose necessities required improvements, and that those improvements, when found to be located on a school section, should have some protection. What this protection should be, and how the rights of the State should be also protected, and the relative rights of the settler and of the State under these circumstances, is a subject of a distinct section of the act—the one succeeding that we have just considered.

" That section (Sec. 7) provides: ' That when any settlement, by the erection of a dwelling-house, or the cultivation of any portion of the land, shall be made upon the sixteenth and thirty-sixth sections before the same shall be surveyed, or when such sections may be reserved for public uses, or taken by private claims, other lands shall be selected by the proper authorities of the State in lieu thereof.' That it was the purpose of this section to provide a rule for the exercise of the right of pre-emption to the school lands granted by the previous section cannot be doubted. The reason for this is equally clear, namely, that these lands were not only granted away by the preceding section and inchoate rights conferred on the State, but they were, with other classes of lands, by express terms excepted out of the operation of the pre-emption laws which it was a principal object of that section to extend to the public lands of California generally.

" Whether a settler on these school lands must have all the qualifications required by the Act of 1841, as being the head of a family, a citizen of the United States, etc., or whether the settlement, occupation, and cultivation must be precisely the same as required by that act, we need not stop to inquire. It is very plain that by the seventh section, so far as related to the dates of the settlement, it was sufficient if it was found to exist at the time the surveys were made which determined its locality ; and as to its nature, that it was sufficient if it was by the erection of a dwelling-house, or by the cultivation of any portion of the land. These things being found to exist when the survey ascertained their location on a school section, the claim of the State to that particular piece of land was at an end; and being shown in the proper mode to the proper officer of the United States, the right of the State to that land was gone, and in lieu of it she had acquired the right to select other land agreeably to the Act of 1826, subject to the approval of the Secretary of the Interior.

" But it is said that the right of pre-emption thus granted by the seventh section was subject to the limitation prescribed by the third proviso to the sixth section, namely, ' that nothing in this act shall be construed to authorize any settlement to be made on any public lands not surveyed, unless the same be made within one year from the passage of this act; nor shall any right of such settler be recognized by virtue of any settlement or improvement made of such unsurveyed lands subsequent to that day.' And such was the opinion of the Supreme Court of California. And that Court, assuming this to be true, further held that the grant made by the act of the school sections was a present grant, vesting the title in the State to the sixteenth and thirty-sixth sections absolutely, as fast as the townships were surveyed and sectionized. (Higgins v. Houghton, 25 Cal. 252.) As a deduction from these premises, it held that the right to pre-emption on these lands expired with the lapse of the year from the passage of the act, and that no subsequent act of Congress could revive or extend it, even if it was so intended.

" But we are of opinion that the first of this series of propositions is untenable.

" The terms of the proviso to the sixth section and those of the seventh section, if to be applied to the same class of lands, are in conflict with each other. The one says that if settlement be made on land before the survey, which by that survey is found to be on the sixteenth or thirty-sixth section, the settlement shall be protected. 'The other says that no settlement shall be protected unless made within one year after the passage of the act. In view of the well-known fact that none of these surveys would be completed under several years, the provision of the seventh section was a useless and barren concession to the settler, if to be exercised within a year ; and in the history of land titles in that State would have amounted to nothing. This apparent conflict is reconciled by holding to the natural construction of the language and the reasonable purpose of Congress, by which the limitation of one year to the right of pre-emption in the sixth section, is applicable alone to the general body of the public lands not granted away, and not excepted out of the operation of the Pre-emption Law of 1841, as the school lands were by the very terms of the previous part of the section ; while section seven is left to control the right of pre-emption to the school sections, as it purports to do.

" In this view of the matter, the very learned argument of counsel on the question of the character of the grant, as to the time when the title vests in the State, and the copious reference to the acts of Congress and of the State as authorizing preemption after the expiration of one year from the date of the statute, are immaterial to the issue. Actual settlement before survey made accompanied the grant as a qualifying limitation of the right of the State, which she was bound to recognize when it was found to exist, and for which she was authorized to seek indemnity in another quarter. There is, therefore, no necessity for any additional legislation by Congress to secure the pre-emption right as to school sections, and no question as to whether it has so legislated, or whether such legislation would be valid, and we do not enter on those questions.

" No question is made in the argument here, none seems to have been made in the Supreme Court of the State, and none is to be found in its opinion in the case, as to the admissibility of the rejected testimony, if the fact which it sought to establish could be recognized by the Court. Nor do we think such objection, if made, is sustainable. The testimony offered does not go to impeach or contradict the patent of the United States, or vary its meaning. Its object was to show that the State of Cal ifornia, when she made her conveyance of the land to defendant, had no title to it. That she never had, and that by the terms of the act of Congress under which she claimed, the only right she ever had in regard to this tract was to seek other land in lieu of it. The effect of the evidence was to show that the title set up by defendant under the State was void—not merely voidable, but void ab initio. For this purpose it was competent and it was sufficient, for it showed that when the survey was actually made, and the land in question was found to be part of section thirty-six, plaintiff had made a settlement on it, within the meaning of the seventh section of the Act of 1853, and the State eould do nothing but seek indemnity in other land.

" It has always been held that an absolute want of power to issue a patent could be shown in a Court of Law to defeat a title set up under it, though where it is merely voidable the party may be compelled to resort to a Court of Equity to have it so declared. (Stodard v. Chambers, 2 How. 317 ; Easton v. Salisbury, 21 How. 426 ; Reichart v. Felps, 6 Wall. 160.)"

The judgment was reversed and case remanded to the Supreme Court of California, with direction to order a new trial in conformity co the principles of the opinion. 1

i The Supreme Court of California held (45 Cal. 656) that the title to each sixteenth and thirty-sixth section upon its being surveyed vested absolutely in the State of California; that Congress had no power, after the passage of that act, to impair the grant or prevent the title to those sections, upon their being surveyed, from vesting in the State, and that therefore the Act of Congress of May 30th, 1862, (12 U. S. Stats. 4091 did not have the effect to extend the right of preemption over those sections.

In arriving at this conclusion, the Court followed the doctrine laid down in Higgins i'. Houghton, 25 Cal. 252, to the effect that the Act of Congress of March 3d, 1853, vested in this State tho title to the sixteenth and thirty-sixth sections in each township; that the power of locating the land granted by means of a survey of the public lands was reserved to the General Government, and " as fast as townships thereafter were surveyed and sectionized, that the State became the owner of the sixteenth and thirty-sixth sections absolutely, not only as to quality, but as to position also "; and " that by the grant of the sixteenth and thirty-sixth sections to tho State in full property, they were effectually withdrawn from the operation of the acts relating to pre-emptions." In the latter case the lands were mineral lands. The grants, so far as respects the location of the lands granted, were held to be subject to the exception of lands reserved by competent authority, and lands to which a valid right of pre-emption should attach, under the provisions of tho act, prior to the survey, that is to say, tho lands to which a valid right of pre-emption might bo acquired by means of a settlement which had already been made, or which might be made within ono year after the passage of the act. (See Higgins o. Houghton, 25 Cal. 252; Doll v. Meador, 16 Cal. 296: Van Valkenburg v. McCloud, 21 Cal. 330; Foley v. Harrison, 15 How. 447.)

The words of the Swamp Land Act of Congress of the 28th September, 1850, are that the lands "shall be and the same are hereby granted to said State." And these words wero held to constitute a grant in presenti in the following cases: Summers v. Dickinson, 9 Cal. 554; Owen v. Jackson, Ibid. 322; Keeran v. Griffith, 27 Cal. 87; Robinson v. Forrest, 29 Cal. 317.

The case of Sherman v. Uuick, Supra, is followed in the still later case of Morrow i'. Kingsbury, Oct. 7th, 1875, Supremo Court of California, No. 4504, not reported. (See Finney v. Berger, 50 Cal. 248.)

The ruling upon this important subject in the General Land Office of the United States should be referred to.

The question arose in the Keystone Case, which involved tho right of the State of California to school sections which are mineral in character.

See Keystone Case, Decision of Commissioner of Land Office, June 18th, 1872; Report of Secretary of Interior, 1873, 24 ; Copp's U. S. Mining Decisions, p. 105; Decision of Secretary of Interior affirming the decision of the Commissioner, April 28th, 1873; Renort of Secretary of Interior, 1873, 24; Copp's U. S. Mining Decisions, p. 109.

The controversy arose between certain mining claimants, tho town of Amador, Amador County, Cal., and the grantee of the State of California, of a portion of a thirty-sixth section. The question was as to the right of tho State of California, under the grant of March 3d, 1853, to lands found upon survey to bo numerically designated under the public land system as Sees. 10 and 36, where such lands were, at the date of such survey and designation, in the bona lide possession of parties properly qualified, who claimed the right of having tho

In the construction of the Act of 1853, therefore, it must be considered as settled that the school sections, sixteen and thirtymining and town-site laws of the United States executed in their favor. There had been a decision in the case of Cooper v. Roberts, 18 How. 173, affirming the right of the State of Michigan to certain copper-bearing lands in School Sec. 16, in that State.

The Commissioner drew a distinction between the acts applicable to Miohigan— the Act of June 23d, 1836, (5 U. S. Stats, at L. 59) and the act applicable to California— the Act of 1853, Supra.

He referred to the inhibition in the latter, Sec. 6, against the survey of any other than -township lines, " where the lands are mineral," and remarked that this inhibition was not repealed by Congress until the passage of the laws of July 26th, 1866, and July 9th, 1870, commonly known as the " mining acts," which provided for extending the United States surveys to mineral lands. He said it was not easily understood how the sixth section of the Act of 1853 could be construed to be a present grant of Secs. 16 and 36 of lands which were, by the second section of the same act, expressly excluded from survey, as mineral. The Commissioner reviewed the seventh section of the Act of 1853, and the Act of July, 1866—the first "mining act"—and ruled that prior to the 7th of October, 1870, (the date of filing the plat of the township) the land in controversy formed a part of the unsurveyed mineral lands of the public domain, and that parties who were in the actual occupancy and possession of mining claims, under local regulations, in said subdivision at the date of the filing of the township plat, were in such occupancy and possession under authority of the Statute of July 26th, 1866, and that they or their grantees, upon compliance with the mining laws of Congress, would be entitled to patents for their respective claims, the same as if they were upon unsurveyed lands, or within sections other than sixteen or thirty-six.

In affirming this ruling, the Secretary of the Interior said that it was conceded, upon the facts, that each of the mining companies was entitled to a patent, unless the title to the half-section was vested in the State of California or itsgrantee, and assumed that in every valid grant there must be a grantor capable of making the grant, a grantee capable of taking it, and a thing granted capable of identification with reasonable certainty ; that all grants made by the General Government to individuals, corporations, or States are to be construed strictly against the grantee, and that nothing passes by implication ; that the intent of the law-makers is to govern, and that such intent is to be gathered from the entire act. He considered these three questions :

1st. When does title vest in the State to Sees. 16 and 36 under the Act of 1853 ?

2d. Does the seventh section except from the grant land upon which settlement has been made prior to survey, for other purposes than pre-emption appropriation ?

3d. Does the grant include mineral lands in Sees. 16 and 36 ?

In answer to the first query, and construing the sixth section of the act, he held that it was a grant to the State in presenti, in the nature of a float, taking effect upon specific tracts when the same are surveyed by the United States, and not before. The grant is in words de presenti; but, until survey, there are no tracts or parcels of land in existence answering to the calls of the grant

The grant was held to be in its nature the same as that usually made by Congress ' to railroad companies, to aid in the construction of their roads. These grants are generally for a certain number of sections, designated by odd numbers on each side of the road, with a provision for indemnity selection, in owe any of

W. C—5.

six, granted by section six to the State, are also excepted from the operation of the Pre-emption Law governing the public

such sections shall have been sold, or otherwise disposed of, prior to the definite location of the line.

The cases of Railroad e. Smith, 0 Wallace, 09, and Railroad v. Fremont Co. 9 Wallace, 00, decided that these grants did not vest any right in the companies to specific sections until the line of the road was definitely fixed on the face of the earth. The title to specific tracts vested only _u tho happening of a contingency—the definite location of the road. The same rule was applied by the Secretary to the grant to tho State. Tho title only vested upon tho happening of tho contingency that made the grant certain as to location, viz., the survey. As sustaining this position the following cases were cited : Gaines v. Nicholson, 9 How. 305 ; Cooper v. Roberts, 1S How. 173 ; Kissello. St. Louis Public Schools, 18 How. 19; Terry v. Megerle, 24 Cal. 024 ; Grayson v. Knight, 27 Cal. 507 ; Middleton v. Lowe, S0 Cal. 53C ; West v. Cochran, 17 How. 413. And tho following cases, relied upon in opposition, reviewed: Higgins v. Houghton, Supra; Rutherford P. Green, 2 Wheat. 196; Lessieur «. Price, 12 How. DO ; How v. Missouri, 12 How. 120 ; Veeder v. Guffey, 3 Wis. C20 ; Sherman v. Buick, 45 Cal. Supra; Van Valkenburg v. McCloud, 21 Cal. 330.

In answering the second question, and construing tho seventh section of tho Act of 1853, the Secretary was of opinion that it excepts from tho grant to the State lands upon Sees. 10 and 36, upon which any settlement by the erection of a building or buildings, or tho cultivation of any portion of the land, has been made prior to survey.

And as regards the third proposition, ho was of opinion that Congress, by the Act of 1853, did not intend to grant and did not grant to tho State any mineral lands that, by survey, are shown to be in Sees. 10 and 3G—on the contrary, the intention to reserve those lands was considered apparent from tho act itself. (Sees. 0, 8, 12, 13.)

The Mining Act of July 20th, 1806, was regarded as providing an exclusive method for appropriating tho mineral lands of tho United States. It was the first act passed by Congress undertaking to disposo of its mineral lands, and it made no exceptions in favor of school or other grants.

If the State could obtain two sections iu every mineral towns'.ip, it was urged that it might establish a mineral system for itself, and ono in conflict with that of tho General Government. It was held that such was not the intention o f Congress, and no mineral lands passed by tho grant.

Tho Keystono caso was approved in Delaney i'. Thomas, Decision of Commissioner, June 25th, 1875 ; 2 Copp's Land-owner, 50.

Tho legislature of California, by tho Act of Feb. 3d, 1876, Stats. 1875-6, p. 20, and the Act of March 28th, 1S74, Stats. 1873-4, p. 703, did indeed provide for the "sale of tho mineral lands belonging to the State," and undertook to provide machinery regulating the same. It provided for tho affidavit for purchase, as to who should bo preferred purchassTM; for contests and actions, manner of sale, vested rights, patents, and payments.

In tho General Land Office a caso arose in relation to tho right of the State of Nevada to Sees. 10 and 30 of each township, for school purposes, when such sections are found to contain mines.

Tho seventh section of tho Enabling Act of tho 21st of March, 1804, passed at tho first session of the Thirty-eighth Congress, grants to said State said sections, unless sold or otherwise disposed of by any act of Congress.

Joint resolution of the 30th of January, 1835, (13 Stats. 537) declares that no lands generally. That under the seventh section providing a rule by which the right of pre-emption on the school sections is governed; a settlement is protected, if the surveys ascertain its location to be on a school section when those surveys are made. The only right then conferred on the State is to select other land in lieu of that occupied.

The proviso in the sixth section forbidding pre-emption on unsurveyed lands, after one year from the date of passage of the act, is limited to the lands not excepted out of that section, and has no application to the school sections excepted.

§ 35. School lands containing minerals, in Nevada.—

The question whether the grant of school lands to the State of Nevada was one in prcesenti or in futuro, was presented for decision in the case of Heydenfelt v. Daney Gold and Silver Mining Co. 1 in the Supreme Court of Nevada.

The Court, however, assumed, for the purposes of the decision, that the grant took effect absolutely upon the admission of the State into the Union.

The case was an action of ejectment to recover a portion of the west half of the southwest quarter of section sixteen, township sixteen, range twenty-one east, Mount Diablo base and meridian. The plaintiff claimed title under a patent issued to his grantors and predecessors in interest by the State of Nevada, on the 14th day of July, 1868, under and by virtue of the statute authorizing the conveyance of lands granted to the.State by the seventh section of the Enabling Act of Congress, entitled " An Act to enable the people of Nevada to form a constitution and

act passed at the first session of the Thirty-eighth Congress, granting lands to States or corporations, to aid in the construction of roads, or for other purposes, or to extend the time of grants heretofore made, shall be so construed as to embrace mineral lands, which in all cases shall be and are reserved exclusively to the United States, unless " otherwise specially provided " in the act making the grant.

In view of this legislation, and of the considerations set forth, it was held to be clear that an executivo officer must regard a section of land No. 16 or 36, situated in Nevada, and "rich in minerals," as the property of the United States, and not as passing to the State under the act. (Decision of Secretary of the Interior, May 20th, 1870 ; Copp's U. S. Mining Decisions, pp. 30, 31.)

The State Register was allowed to select other lands as indemnity when school sections Nos. 16 and 30 should be found to be mineral. (Decision of Commissioner of General Laud Office, May 24th, 1870; Copp's U. S. Mining Decisions, pp. 30.31.)

1 10 Nevada, 290

State government, and for the admission of such State into the Union on an equal footing with the original States," approved March 21st, 1864, which reads as follows: " That sections numbers sixteen and thirty-six in every township, and where such sections have been sold or otherwise disposed of by any act of Congress, other lands equivalent thereto, in legal subdivisions of not less than one-qua»ter section, and as contiguous as may be, shall be and are hereby granted to said State for the support of common schools." (13 U. S. Stat. 32; Stat. 1864-5, 37.) The defendant claimed title under a patent issued to it by the United States, on the 7th day of March, 1874, under and by virtue of the Act of Congress entitled " An Act granting the right of way to ditch and canal-owners over the public lands, and for other purposes," approved July 26th, 1866, (14 U. S. Stat. 251) the act amendatory thereof, approved July 9th, 1870, (16 U. S. Stat. 217) and the act entitled " An Act to promote the development of the mining resources of the United States," approved May 10th, 1872 (17 U. S. Stat. 91).

The land in controversy was mineral land, and the defendant was in possession of the same, and was engaged in conducting and carrying on the business of mining thereon, and had erected improvements thereon, for mining purposes, of the value of over $80,000. In the year 1867, prior to the date of the survey or approval of the survey of the land by the Government of the United States, the grantors and predecessors in interest of defendant entered upon the land for mining purposes, and claimed and occupied the same in conformity with the laws, customs, and usages of miners in the locality and mining districts in which the land was situate, and were so possessed and engaged in mining thereon when the land was first surveyed, and when the State issued its patent to the grantors and predecessors in interest of plaintiff.

Two leading questions were presented for consideration in determining the legal rights of the respective parties : 1st. When does the title vest in the State to the sixteenth and thirty-sixth sections granted by the seventh section of the Enabling Act ? 2d. Did the patent issued by the State include mineral lands ?

The Court did not deem it necessary to decide whether the grant was one in prcesenti or in futuro, assuming, for the sake of the argument, that the proper construction to be given to the seventh section of the Enabling Act is, that the grant took effect absolutely upon the admission of this State into the Union, and that the title to the lands then vested in the State, although subsequent proceedings might, as was said in Schulenberg v. Harriman, 21 Wall. 62, " be required to give precision to that title and attach it to specific tracts," and likewise assuming that Congress had no power, after the admission of the State into the Union, to impair the grant, without the consent of the State. The Court said: " Still, we think it must be admitted that Congress could thereafter, with the consent of this State, prior to the disposal by the State of any of the lands embraced in said sections, and at any time prior to the survey, change the terms of the grant, and we are of opinion that, by the subsequent act of Congress and the act of acceptance by the legislature of this State, the mineral lands were reserved from sale by the government of the United States, with the consent of this State, and that the patent issued by this State did not, upon the admitted facts of this case, include the mineral lands in controversy. If we accept the definition announced by text-writers, ' that a grant is a contract; executed, it is true, but still a contract,' (3 Parsons on Contracts, 527) and it was so decided in Fletcher v. Peck, 6 Cranch, 87, it would be within the power of both parties, by mutual consent, to modify or change the terms of the contract after its execution ; and if we adopt the rule as stated by Field, J., in Schulenberg v. Harriman, Supra, that ' a legislative grant operates as a law as well as a transfer of the property, and has such force as the intent of the legislature requires,' the same principle follows, and the law could be changed or modified at any time by the consent of both parties before the rights of others attached, certainly this must be true, unless there is some constitutional provision against such acts of legislation.

" In Higgins v. Houghton, 25 Cal. 255, where it was held that the State of California, by virtue of the grant of March 3d, 1853, which in some respects is similar to the grant under consideration, ' became the owner of the sixteenth and thirty-sixth sections absolutely, not only as to quantity, but as to position also,' the Court impliedly recognized the fact that it was within the power of Congress and the State by mutual agreement to change the provisions of the grant. After stating that there had been no legislation by Congress prior to the grant which would interfere with the conclusions reached in said case, the Court said: ' And if there has been any legislation since the grant that conflicts with the conclusion, it must be null and void, unless, indeed, it has been acceded to by the grantee.' Here such subsequent legislation was had by Congress, and it was acceded to by the grantee.

" After the sixteenth and thirty-sixth sections had been granted, and after this State had been admitted into the Union, Congress passed an act entitled ' An Act concerning certain lands granted to the State of Nevada,' approved July 4th, 1866. After confirming the appropriation made by the constitution of this State, to educational purposes, of the land granted to this State by the law of September 4th, 1841, and providing for the appointment of a ' Surveyor-General for Nevada,' who was to perform certain duties therein prescribed under the direction of the Secretary of the Interior, it was further enacted : ' That in extending the surveys of the public lands in the State of Nevada, the Secretary of the Interior may, in his discretion, vary the lines of the subdivisions from a rectangular form to suit the circumstances of the country ; but in all cases lands valuable for mines of gold, silver, quicksilver, or copper shall be reserved from sale.' (14 U. S. Stat. 85-6, Sec. 5.) This State, in accepting the grant, unequivocally consented to the reservation by Congress of the mineral lands, and accepted the grant with all the conditions and reservations mentioned in said section. The act passed by the legislature of this State, entitled ' An Act in relation to and accepting the lands granted to the State of Nevada by the Government of the United States,' approved February 13th, 1867, is explicit upon this point. It reads as follows :

" ' Sec. 1. The State of Nevada hereby accepts the grants of lands made by the Government of the United States to this State, in the following acts of Congress, to wit: " An Act donating public lands to the several States and Territories which may provide colleges for the benefit of agriculture and the mechanic arts," approved July 2d, 1862, as amended and approved April 14th, 1864, and as extended July 4th, 1866, by an act entitled " An Act concerning certain lands granted to the State of Nevada," upon the terms and conditions in said acts expressed, and agrees to comply therewith.

" ' Sec. 2. The State of Nevada hereby accepts the grants of lands made by the Government of the United States to this State, in the Act of Congrecs entitled " An Act concerning certain lands granted to the State of Nevada," approved July 4th, 1866, upon the terms and conditions in said act expressed, and agrees to comply therewith.

"' Sec. 3. The State of Nevada hereby accepts all grants of public lands heretofore made by the Government of the United States to this State, upon the terms and conditions so granted, as modified in tlie Act of July 4kth, 1866, above in this act referred to.' (Stat. 1867, 57.)

" This act was passed prior to the survey, by the United States, of the land in controversy, which, from the record in this case, is shown to have been made in August, 1867.

" This State, by its act of acceptance of the grant as modified by the Act of Congress of July 4th, 1866, was estopped from thereafter claiming title to any lands valuable for mines of gold, silver, quicksilver, or copper, for such lands were, by said act, expressly reserved from sale. It is evident that when Congress passed the Act of July 4th, 1866, it thought that, by the effect of the grant and the law of the event, that this State would not acquire an absolute ownership in the lands until the surveys were made ; but even if it was mistaken as to the legal effect of the grant, its action received the sanction and approval of this State before the title of the State, under any rule of construction, absolutely attached to any specific tract of land. If it be conceded that the State had a vested title to the mineral lands contained in the sixteenth and thirty-sixth sections, prior to the Act of February 13th, 1867, it is certain that by said act it relinquished its rights thereto, and thereby agreed to accept other lands in lieu thereof.

" The passage of said act was a recognition by the legislature of this State of the validity of the claim made by the Government of the United States to the mineral lands.

" Whatever might, therefore, be the construction of the language of the Enabling Act, as interpreted from the act itself, we think it is controlled by the subsequent legislation we have referred to, and that the title of the State to the land conveyed to appellant's grantors was, at the time of the survey thereof, subject to the terms and conditions imposed by the Act of Congress of July 4th, 1866 ; and as the portion of said land in controversy in this action was then ' rich in minerals,' and occupied and olaimed by respondent's grantors for mining purposes, the grantors of appellant acquired no title thereto by virtue of the patent issued by this State.

" Against the views we have above expressed, counsel for appellant make three objections: 1st. It is first argued that the Act of July 4th, 1866, is prospective in its terms, and that it only applies to future acts or grants. We think that the act, when read entire, is susceptible of but one construction. It refers to lands granted prior to, and at the time of, the passage of the act. The title of the act clearly indicates that it was the intention of Congress to make the act apply to lands already granted —' An Act concerning lands granted to the State of Nevada '— not lands to be thereafter granted, but lands granted by that and other prior acts of Congress. The construction we have placed upon this act must certainly be correct, if it be true, as was argued by appellant's counsel upon another branch of this case, and held to be the law in Whitney v. Whitney, 14 Mass. 92, that we should not be encouraged to direct our conduct, in arriving at the intentions of the legislature, ' by the crooked cord of discretion, but by the golden metewand of the law'; that we are not to construe statutes by equity, but to collect the sense of the legislature by a sound interpretation of its language, according to reason and grammatical correctness. But we do not think there is any room for argument as to its meaning. It applies to all grants made by Congress to the State of Nevada, where the lands granted had not been surveyed by the Government of the United States, and included the grant mentioned in the Enabling Act, and such was the evident understanding of the legislature of this State when it passed the act of acceptance, approved February 13th, 1867.

" 2d. It is argued that the Act of Congress applies only to the public lands then belonging to the United States, and it is claimed that, inasmuch as the sixteenth and thirty-sixth sections had already been granted, the act did not affect the title to them, as they were no longer public lands. An examination of the various acts of Congress relative to the surveying of the public lands, has convinced us that the word ' public' is applied by Congress to all the unsurveycd lands, whether the same or any portion thereof had been previously granted or not.

" All lands are public within the meaning of that word, as used in the act referred to, until the survey is made. This is necessarily so, because, until the surveys are made, the rights of the grantee to any specific tract of land could not be ascertained ; hence, it is that the word ' public' is used to distinguish the unsurveycd from the surveyed and segregated lands where the rights of private proprietorship had attached.

" 3d. The last objection argued by appellant's counsel is, that the Act of February 13th, 1867, is in violation of the third section of Article 11 of the constitution of this State. It is claimed that, by the provisions of said section, the sixteenth and thirty-sixth sections are set apart and dedicated to the public schools, and that it was not, therefore, within the power of the legislature to relinquish the title of the State to these sections. Section 3 provides that ' all lands, including the sixteenth and thirty-sixth sections in every township, donated for the benefit of public schools, in the Act of the Thirty-eighth Congress, to enable the people of Nevada Territory to form a State government, * * * shall be and the same are hereby solemnly pledged for educational purposes, and shall not be transferred to any other fund for any other uses,' etc.

" The plain object of this provision of the constitution was to prevent the legislature from passing any law that would appropriate the proceeds received by the State from the sale of such lands to any other than educational purposes. The title to said sections is vested in the State, not in the schools. The lands are solemnly pledged to educational purposes, and when sold by the State the proceeds arising therefrom must, under the provisions of the constitution, be paid into the school fund, and only be used for educational purposes, ' and shall not be transferred to any other fund for any other uses.' The same disposition must also be made of the proceeds derived by the State from the sale of lands selected in lieu of the sixteenth and thirty-sixth sections. There is nothing in the act which attempts to make any disposition of said lands for any other than educational purposes. The school fund is fully protected, and, in our opinion, this provision of the constitution has not been violated.

" We have not, in this opinion, considered the legal effect of the joint resolution of Congress, approved January 30th, 1865, which provides that no act passed at the same session of Congress as the Enabling Act, ' shall be so construed as to embrace mineral lands, which in all cases shall be and are reserved exclusively to the United States, unless otherwise specially provided in the act or acts making the grant,' and which was construed by the Secretary of the Interior to exclude from the operation of the Enabling Act all mineral lands (Copp's U. S. Mining Decisions, 31) ; nor have we deemed it necessary to discuss many other points that were urgently pressed by counsel, as the results we have reached, upon the points decided, are in our judgment conclusive of this case." 1

In the Land Office it has been held that Sections 16 and 36, when mineral, did not pass to the State of Nevada, under the Act of Congress of March 24th, 1864, in view of Joint Resolution of January 30th, 1865, but remained the property of the United States. 2

i Heydenfelt v. Daney G. & S. M. Co. 10 Nevada, 290.

Tho author is informed that this case has been recently affirmed (March, 1877) by tho Supreme Court of the United States. Tho opinion of tho Court, delivered by Davis, J., is said to hold: First—That the Act of Congress of March 21st, 1804, authorizing the people of Nevada to frame a constitution, under which act Nevada selected and conveyed the land in controversy to the grantees of Heydenfelt, did not constitute a grant in presenti of the premises, but the grant remained inchoate and incomplete until tho land was surveyed by the United States authorities, and tho survey properly approved. Second—That tho survey and approval not having been made prior to tho entry by the company's predecessors in interest for mining purposes, the land was not, by act of Congress, or in any other manner, ever granted by tho United States to Nevada. Third—That, under the entry, tho company's grantors, and their right thereto, having become ,stablished prior to tho survey of Section 10 by tho United States, the land was not included in, nor did it pass to Nevada by, tho granting clause of 1854, but, on the contrary, was excluded therefrom because previously possessed and occupied by defendants' grantors for mining purposes in conformity with tho mining laws, rules, and customs of tho miners in tho locality where it is situated, and in conformity with tho Mining Act of Congress, approved July 26th, 1866.

The opinion is not, at the date of writing, accessible to the author. See Ap Pendix.

a Decision of Secretary, May 20th, 1870, Copp's Mining Decisions, 31.

§ 36. Mineral lands in railroad grants.—Two cases in California have been decided, wherein the ownership by railroads of mineral lands within the boundaries of their grants, has been considered. In McLaughlin v. Powell, 50 Cal. 64, the action was ejectment. The defendant, in his answer, set up that the plaintiff claimed the land under a " grant made to the Central Pacific Railroad Company of Cali fornia, and that the land was mineral land, and was by the express terms of the grant excepted from the operation of the same. On the trial, the plaintiff offered in evidence a patent from the United States to the Western Pacific Railroad Company of California, dated May 31st, 1870, conveying the demanded premises as a portion of the land granted by Congress, to aid in the construction of a railroad, by the Act of July 1st, 1862, and the act amendatory thereof, passed July 2d, 1864. By the terms of said acts, the grant was limited to public land which was not mineral land, and which was not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim should not have attached at the time the line of the road should be definitely fixed.

The objections to the admission of the patent being overruled, the plaintiff then deraigned title by mesne conveyances from the company, and rested, and the defendant then offered to prove that the land was mineral land, containing large quantities of cinnabar and quicksilver, and that he had held the land as a mining claim since October, 1866, under the rules and regulations and customs of miners in the district where the land was situated. The objections to this testimony were sustained.

It was assumed in the decision that lands valuable because of cinnabar or quicksilver ores are " mineral lands" within the meaning of the act of Congress.

The defendants' objection to the patent, that it was " irrelevant," was held properly overruled. It was held not necessary to decide whether it was for the plaintiff, who relied on the patent, to prove that the land in controversy was not one of the excepted tracts, because no motion for nonsuit was made, and it was held that if the plaintiff was not required to prove that the land was not within the exception, the defendant was entitled affirmatively to establish that it was within it.

The exception contained in the patent was part of the description, and was equivalent to an exception of all the subdivisions of land mentioned, which were " mineral" lands.

The patent granted all of the tracts named in it which were not mineral lands. If all were mineral lands, it was suggested that the exception might be void; but as the fact could not be assumed, it was held that the defendant should have been allowed to prove that the demanded premises were mineral lands. 1

In Alford v. Barnum, 45 Cal. 482, an action to abate a ditch as a nuisance, the defense was that the land upon which the ditch was dug was the public mineral land of the United Statos, and that the defendants were mining thereon for gold.

The land was within the grant to the Central Pacific Railroad Company, and the company, prior to the excavation of the ditch, had received a patent for it, which patent excepted from its operation all " mineral lands." The plaintiff, at the time the ditch was dug, was in possession of the land under a contract of purchase from the railroad company, who claimed under grant and patent from the United States.

No license from plaintiff was pleaded, nor attempted to be pleaded in time. It was found that the ditch was injurious to the premises, and interfered with the plaintiff's full and free enjoyment of the land.

It was virtually found below that the character of the land was not mineral, but the appellate Court further remarked that the mere fact that portions of the land contained particles of gold, or veins of gold-bearing quartz rock, would not necessarily impress it with the character of mineral land within the meaning of the acts of Congress reserving mineral lands from the grant, nor within the reservations of the patent which followed the terms of the granting acts.

It should be shown that the land contains metals in quantities sufficient to render it available and valuable for mining purposes. Any narrower construction, it was thought, would

1 McLaughlin o. Powell, 50 Cal. 64. See, also, Railroad v. Smith, 9 Wallace, 98; People v. Stratton, 25 Cal. 242; Kernan o. Griffith,27 Cal. 87; Robinson v. Forrest, 29 Cal. 317; Read v. Caruthers, 47 Cal. 181; Patterson v. Lynch, Circuit Court of California. Decision of Mr. Justice Sawyer.

operate to reserve from the uses of agriculture large tracts of land which are practically useless for any other purpose.

The land, therefore, was held not within the exception, and the plaintiff had judgment. 1

i Alford v. Bamum, 45 Cal. 482; 12 U. S. Stat, at L. 489; 13 Ibid. 356. See Decision of Commissioner, March 14th, 1871, Copp's U. S. Mining Decisions, 40.

Upon the general subject of reservations in grants of mines, see Blanch ard & Weeks' Leading Cases on Mines and Mining Water Rights, Chap. X.

CHAPTER HI.

RIGHT OF EXPLORATION AND PURCHASE OP VALUABLE MINERAL DEPOSITS, AND THE OCCUPATION AND PURCHASE OF MINERAL LANDS—CITIZENSHIP AND PROOF THEREOF.

§ 37. Right to purchase.

§ 38. Valuable deposits.

§ 39. The general rule stated.

§ 40. Borax deposits.

§ 41. Mineral deposits.

J 42. What is a mineral vein ?

§ 43. Mineral veins, classifications.

§ 44. Definitions of terms in common use.

§ 45. "Who may acquiro patents.

§ 40. Application by aliens.

§ 47. Citizenship.

§ 48. Proof of citizenship.

§ 49. Affidavit of citizenship.

§ 50. Foreign corporation.

§ 51. Restriction as to proof.

§ 37. Right to purchase.—Sec, 2319 of the Revised Statutes is as follows: " All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they arc found, to occupation and purchase by citizens of the United States, and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States." 1

1 Rev. Stats. Sec. 2319, same as Sec. 1, Act 1872, 17 U. S. Stats. 91.

Sec. 1, Act of 1860, 14 U. S. Stats. 251, read : " That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to tho local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with tho laws of tho United States." (See Sec. 2329 Rev. Stat.) See Ante, § 2.

§ 38. Valuable deposits.—The word " deposit" has always been construed by the Land Office to be a general term, embracing veins, lodes, ledges, placers, and all other forms in which valuable metals have ever been discovered. In the sense in which the term " mineral" was used by Congress, it seems difficult to find a definition that will embrace what mineralogists agree should be included. Borax, nitrate and carbonate of soda, sulphur, alum, and asphalt, are generally classified and discussed as minerals. 1 Whatever is recognized as a mineral by standard authorities, where the same is found in quality and quantity sufficient to render the land sought to to be patented more valuable on this account than for purposes of agriculture, is treated by the land office as coming within the act. Lands, therefore, valuable on account of borax, carbonate of soda, nitrate of soda, sulphur, alum, and asphalt, it is held, may be applied for and patented. 2

The first section of the Act of 1872 says: " All valuable mineral deposits." 3 The sixth section uses the term " valuable deposits." 4

Diamond-producing lands are " valuable mineral deposits " under the act, and the provisions are as applicable as to lands containing gold or silver. 5 Deposits of fire-clay may be patented under the act, and so may iron deposits, which may be patented as vein or placer claims. 6

Lands, more valuable on account of deposits of limestone, marble, kaoline, and mica, than for purposes of agriculture, may be patented as mineral land. 7

Where valuable deposits of roofing slate had been discovered,

1 Phillips' Mineralogy ; Webster s Dictionary.

'Decision of Commissioner, July 15th, 1873, CoppsU. 8. Mining Decisions, 310 ; Decision of Acting Comr. Oct. 23d, 1874, 1 Copp's Land-owner, 132; Report Comr. Genl. Land Office, 1873, p. 17.

» Rev. Stats. Sec. 2319; 17 U. S. Stats. 91.

4 Rev. Stats. Sec. 2325; 17 V. S. Stats. 92.

s Decision of Acting Secretary, Aug. 31st, 1572, Sept. 3d, 1872, Copp's U. a Mining Decisions, 140; Report Comr. Genl. Land Office, 1873, p. 16.

"Decision of Comr. July 10th, 1873 and July 26th, 1873, Copp's U. S. Mining Decisions, 209-214; 1 Copp's Land-owner 34; Decision of Comr.'Jan. 30th, 1875, 1 Copp's Land-owner, 179.

'Decision of Comr. June 28th, 1875, 2 Copp's Land-owner, 66; Decision of Comr. Dec. 3d, 1875, 2 Copp's Land-owner, 131.

and large amounts spent in their development, the applicants were allowed to proceed to obtain patent.'

But under the Act of 1866, the office did not regard sulphursprings as mineral so as to come within the inhibition of the statutes excluding mineral and saline lands from pre-emption entry or scrip location. 2

Auriferous cement claims found in ancient river-beds, and usually worked by hydraulic process, do not come within the definition of "rock in place," but are patented as placers. 3 Petroleum claims may be patented under the Act of 1872. 4 Lands containing valuable deposits of umber may be patented as placer claims at $2.50 per acre, if not found in veins or " rock in place." If they arc so found, then they may be patented at the rate of $5 per acre, like other lode-claims. 5

§ 39. The general rule stated.—The rule may be stated in general terms, that where valuable mineral deposits are found in such quantity and quality as to render the land sought to be patented more valuable on this account than for purposes of agriculture, the tracts containing such valuable mineral deposits may be patented under the mining acts. But if this is not the case, they cannot be patented under the act except in the case of mill sites, which must be non-mineral in character. Ji parties have the possession and right of possession to salt-springs, and the deposit of salt renders the land more valuable on this account than for agricultural purposes, a patent may be secured upon full compliance with the laws and instructions. 8

§ 40. Borax deposits cannot be entered under the Agricultural Laws of Congress, but may be under the Mining Acts, upon full compliance with the laws, as they provide for the patent

1 Decision of Acting Commissioner, Oct. 23d, 1874; 1 Copp's Land-owner, 132.

2 Decision of Commissioner, Aug. 25th, 1869, Copp's U. S. Mining Decisions, 22.

• Decision of Commissioner, Feb. 12th, 1872, Copp's U. 8. Mining Decisions, 78

* Decision of Commissioner. Jan. 30th. 1875, 1 Copp's Land-owner, 179. »lbid.

•Decision of Acting Commissioner, April 27th, 1874; 1 Copp's Land-owner, 19, reversing Decision Commissioner, July 28th, 1873, Copp's U. 8. Mining Decisions, 214, which was to the effect that there was no general law under which salt-springs could be patented, and that they could only be disposed of by special act of Congress

ing of lands claimed and located for valuable deposits. The proceedings required are the same as in applications for placer mines. 1

§ 41. Mineral deposits.—The useful minerals are found in deposits, which are classified into superficial, stratified, and unstratified deposits. Superficial deposits are those in which the materials are yet unconsolidated, and have been washed down from cliffs and mountain slopes, composed of rocks that contain metals, ores, and gems, either in veins or irregularly disseminated. The " placers " of California are familiar instances of this kind of deposit.

2d. Stratified deposits—where the minerals form entire strata,

such as beds of coal and iron ore.

3d. Unstratified deposits, which are subdivided into : Eruptive masses —Composed of the ingredients of volcanic

rocks.

Minerals disseminated through eruptive rocks. —These, as a rule, are neither numerous nor valuable.

Contact deposits. —Metals or ores accumulated in the plane of junction between two rocks of different kinds, such as igneous and sedimentary rocks.

Impregnations —Which are accumulations of metalliferous minerals found diffused irregularly through rocky masses, the deposits of ore having no definite boundaries, or any regularity of structure, and appearing as though the rock had soaked up or absorbed the minerals as water saturates a sponge. Deposits of mercury exhibit this characteristic.

Fahlbands —A name given to a peculiar kind of deposit, where the ore is sparingly diffused through certain layers which are apt to disintegrate, and are more fahl (i. e., foul or rotten) than the associated strata.

Stock work —Where the masses of metalliferous rocks are penetrated in every direction by threads or strings of ore, so that the whole must be taken out together. 3

And mineral veins.

1 Decision of Commissioner, April 18th, 1873, Copp'sTT. S. Mining Decisions, 191.

1 Am. Cyclop. Art. Mineral Deposits, by Prof. Newberry.

W. C—6.

§ 44. Definitions of terms in common use.

Rock in place —As used in the Mining Acts of Congress, has always received the most liberal construction that the language will admit of, and every class of claims that, either according to scientific accuracy or popular usage, can be classed and applied for as a " vein or lode," may be patented under the law. The object of the law is to dispose of the mineral lands of the United States for money value, and it is a matter of indifference to the Government whether the metal occurs in the form of a true or false vein.

•New Am. Cyclop. " Mineral Vein," citing "Report on the Geology of Cornwall, Devon and West Somerset," by Henry T. Do la Boche (London, 1839). De la richesse minerule, by A. M. H. de Villefosso (Paris, 1810). Lehrbuch der Chcmischen undphyxicalitchen Geologic, by Gustav Bischof (Bonn, 1854). Papers of the " Proceedings of the Geological Society of Cornwall," by Messrs. Robert W. Fox, Joseph Carne, John Hawkins, and others. Whitney's " Metallic Wealth of the United States." Cotta's "Contributions to the Knowledge of Mineral Veins."

Justice Wayne said that a corporation, created by a State to perform its functions under the authority of that State, and only suable there, though it may have members out of the State, seemed to him to be a person, though an artificial one, inhabiting and belonging to that State, and therefore entitled, for the purpose of suing and being sued, to be deemed a citizen of that State.

He further said, that he was unable to reconcile these qualities of a corporation—residence, habitancy, and individuality—with the doctrine that a corporation aggregate cannot be a citizen for the purposes of a suit in the Courts of the United States, unless in consequence of a residence of all the corporators being of the State in which the suit is brought. 2

Notwithstanding that Justice Wayne, in L. R. Co. v. Letson, Supra, said that a corporation was to be deemed a citizen, for the purpose of suing or being sued, Chief Justice Taney, in a later case, said that he presumed that no one ever supposed that the artificial being, created by an act of incorporation, could be a citizen of a State, in the sense in which that word is used in the Constitution of the United States. 3 Now, inasmuch as the Constitution of the United States refers to the jurisdiction of the United States Courts, as extending to controversies between citizens of different States, etc., and therefore declares them to be capable of suing and being sued in the United States Courts, it would seem that some one had supposed that a corporation could be a citizen, in the sense used in the Constitution, and that the tribunal making the " supposi

1 Strawbridge v. Curtis, 3 Cranch, 266; U. S. v. Deveaux, 5 Cranch. 84; VicKsburg v. Slocuin, 14 Pet. 60.

2 See, also, Marshall v. B. & O. B. R. Co. 16 How. U. S. 327. 'Covington Drawbridge Co. v. Shepherd, 20 How. 233

tion " was no less an authority than the same Supreme Court of the United States, in the Letson case. 1

If any rule can be deduced from these fluctuating opinions of the highest Court of the country, it is probably this. That the quality of citizenship was given to a corporation from the necessity of the case, and for the purpose of allowing it to sue and be sued, and for that alone, and that a corporation is in no other sense a citizen within the meaning: of that term as used in the Constitution, or in the general laws relating to public lands. ' Such was the construction given to the first section of the Mining Act of 1866, by the Assistant Attorney-General. 2

The Act of 1872, however, was more explicit upon the rights of corporations to apply for patents. Sec. 6 3 conferred the right of application upon " any person, association, or corporation authorized to locate a claim," etc., and in regard to proof of citizenship, it is provided 4 that it may consist, in the case of a " corporation organized under the laws of the United States, or of any State or Territory thereof," of the filing of a certified copy of their charter or certificate of incorporation.

These provisions were doubtless intended to obviate the perplexities and difficulties arising from the ambiguous language of the Act of 1866, which referred to " any person or association of persons." But these provisions, in their turn, it is important to consider, as they are not so full as to have escaped the necessity of construction. 5

§ 48. Proof of citizenship.—Sec. 2321 of the Revised Statutes is as follows : " Proof of citizenship, under this chapter, may consist, in the case of an individual, of his own affidavit thereof; in the case of an association of persons unincorporated, of the affidavit of their authorized agent, made on his own knowledge, or upon information and belief; and in the case of a corporation organized under the laws of the United States, or of

1 See Decision of Commissioner, July, 1869, and September 1, 1868, Zab. L. L. 221-234.

a In re New Idria Mine, Opinion of Assistant Att'y-Gen. July 21st, 1871; Copp's U. S. Mining Decisions, 47, 56, "Rev. St. Sec. 2325. •Ibid. Sec. 2321. 'See. 2,14 U. S. Stats. 252.

any State or Territory thereof, by the filing of a certified copy of their charter or certificate of incorporation." 1

The proof, therefore, necessary to establish the citizenship of applicants for mining patents, may consist, in the case of an individual claimant, of his own affidavit of the fact; in the case of an association not incorporated, of the affidavit of their authorized agent, made on his own knowledge, or upon information and belief; and setting forth the residence of each person ' forming the association. This affidavit must be accompanied by a power of attorney from the parties forming such association, authorizing the person who makes the affidavit of citizenship to act for them in the matter of their application for patent; and in the case of an incorporated company, organized under the laws of the United States, or the laws of any State or Territory of the United States, by the filing of a certified copy of their charter or certificate of incorporation. These affidavits of citizenship may be taken before the register or receiver, or any other officer authorized to administer oaths. 2 In case of an individual or an association of individuals, who do not appear by their duly authorized agent, there is now required the affidavit of each applicant, showing whether he is a native or naturalized citizen, when and where born, and his residence. In case an applicant has declared his intention to become a citizen, or has been naturalized, his affidavit must show the date, place, and the Court before which he declared his intention, or from which his certificate of citizenship issued, and present residence.

The requirements in reference to proof of citizenship have not been uniform. At first, under the Act of 1866, in requiring proof of citizenship, where the applicant was a corporation, a copy of their charter, or certificate of incorporation, might be filed in lieu of evidence of citizenship. In case, however, the applicant was an individual or an association of persons unincorporated, affidavits of citizenship, or of having filed declara

iR. S. 2321, Sec. 7, Act 72; 17 U. S. Stat. 94. See Sec. 2338 R. S. The words "and nothing herein contained shall bo construed to prevent the alienation of the titlo conveyed by a patent for a mining claim to any person whatever," were added to Sec. 7. and are now in Sec 2o26, Rev. Stat. U. S.

2 Subdivisions 03, 04 ; Instructions Juno 10th, 1872; Instructions Feb. 1st, 1877, Subdivisions 78-81; Land Office Report, 1872, page 44.

tions of intention to become citizens, were required to be filed. 1 But subsequently, this order was revoked, and in case the application was made by an association of persons, incorporated or unincorporated, satisfactory proof was required that each member of such association was a citizen of the United States, or had filed his declaration of intention to become a citizen. 2

Where such application was made by persons claiming to be native-born citizens of the United States, there was required the affidavit of each person so claiming that he was a nativetorn citizen, stating the place of his birth, such affidavit to be taken before a notary public, officer of a Court of Record, or the register or receiver of the land district wherein the claim

lfty

Where the application was made by a person claiming to have filed a declaration of intention to become a citizen, he was required to present a certified copy of such declaration, under seal of the Court in which it was made.

Where such application was made by a person claiming to be n naturalized citizen of the United States, he was required to present his naturalization certificate, or a certified copy thereof, under seal of the Court from which the original issued. Where the application was made by an incorporated company, it was again required that they furnish a certified copy of their certificate of incorporation, besides evidence of the citizenship of each member or stockholder of such company.

Where the application was made by an association of persons unincorporated, evidence was required of the citizenship of each person forming such association, as before stated. 3

But it was found, in the case of incorporated companies, having numerous stockholders, a matter of great difficulty to procure all the individual affidavits, owing to the fact that the parties were often scattered in different parts of the country, or in some instances traveling abroad. The previous requirements were therefore again changed, and when the application was made by a person, or by an association of persons, not incorporated, claiming to be native-born or naturalized citizens of the

1 Instructions Aug. 8th, 1870, Copp's U. 8. Mining Decisions, 257.
* Ibid. Aug. 3d, 1871, Ibid. 267.
«Ibid. Sept. 7th, 1871, Ibid.

United States, there was required the affidavit of each person so claiming, that he was such a citizen ; these affidavits to be made before a notary public, officer of a Court of Record, or the register or receiver of the land district, and in any case where it might be satisfactorily shown, under oath, that the affidavit of any claimant could not be readily obtained, by reason of his absence in a foreign country, or in consequence of his whereabouts or place of residence being unknown, the citizenship of such claimant might be established by the affidavit of another person, who must not only testify to the citizenship of such claimant; but also state the facts upon which his knowledge was based, such as when, where, and for how long he had known him; whether he had exercised the elective franchise in the United States, and any other points proper to be received as evidence of citizenship. 1

It is the announced intention of the Department to so construe the acts as to enable applicants for patents who arc in the actual and rightful possession of mining claims by virtue of compliance with the local laws and regulations and the Congressional enactments, to make the proof required before patents can issue, at the least expense and inconvenience possible. 2

It is sufficient to allege citizenship or declaration of citizenship, though the Department may prescribe the form of the required affidavit.

The portion of a mining claim sold to an alien cannot be patented while such owner is an alien, but on his declaration to become a citizen, his right dates back to his purchase, and he may thereupon secure a U. S. patent for his claim.

Naturalization has a retroactive effect, and is a waiver of all liability to forfeiture, and a confirmation of the alien's former title. 3 Certified copies of certificates of naturalization are not

1 Instructions March 26th, 1872, Copp's U. S. Mining Decisions, 268; Ibid. Sept. 7th, 1871.

2 Decision of Commissioner, February 3d, 1873, Copp's U. S. Mining Decisions, 158. Instructions Feb. 1st, 1877, paragraphs 93, 94. See Instructions, Sept. 7th, 1871; Copp's Mining Decisions, 268, March 26th, 1872; Ibid. Decision of Commissioner, Sept. 11th, 1873; Ibid. 223.

'In re Kcmpton Mine, Derision Sorretary of the Interior, January 2d, 1875, 1 Copp's Land-owner, 178; Decision of Commissioner, July 18th, 1876, 3 Copp's Land-owner, 69; Ostcrman v. Baldwin, 6 Wall. 116 ; Jackson v. Beach, Johnson's Cases, 401. See, also, Fairfaix v. Hunter, 7 Cranch, 603; Orr v. Hodgson, 4

necessary, and the Land Office has no power to require such proof. But the affidavits must state whether the applicants are native or naturalized citizens, and when and where born. In case an applicant has declared his intention, or has been naturalized, his affidavit must also show the date, place, and the Court before which he declared his intention, or from which his certificate of citizenship is issued, and present residence. 1

§ 49. Affidavits of citizenship—Requiring certificates of naturalization.—From Sec. 2321, Rev. Stats. U. S., it will be seen that the method to be pursued for the purpose of establishing the qualification of citizenship is explicitly set forth, and it is not within the jurisdiction of the Department to impose an additional condition, if such condition is at variance with the terms of the act. The Land Office had required applicants, who alleged that they were naturalized citizens, to furnish certified copies of their certificates of naturalization. But this additional condition required by the Office in the matter of the proof of citizenship, was not sustained, and it was thought could not be justified by a consistent interpretation of the law.

No discretion is allowed the Office, under the "Act to promote the development of the mining resources of the United States," as to what shall constitute sufficient proof of citizenship, as in the pre-emption and homestead laws. Applicants for lands under said laws are required to be citizens, or to have declared their intention to become such, and what shall constitute proof of citizenship by declaration is a matter for the consideration of the Office; but in the act under consideration, the manner of making satisfactory proof on this point is expressly prescribed.

Where citizenship, therefore, is properly alleged, copies of the certificates of naturalization are not required to be filed, applicants must file their affidavits, showing whether they are native or naturalized citizens, and when and where born. In case an applicant has declared his intention to become a citizen, or has

'Wheat. 453; Craig v. .Leslie, 3'Wheat. 563; Craig v. Radford, 3 Wheat. 594; Cross v. DeValle, 1 Wall. 1; Heirs v. Robertson, 11 Wheat. 332.

1 Decision of Secretary of the Interior, July 29th, 1876, 3 Copp's Land-owner, 68; Instructions, February 1st, 1877, Subdivisions 78-81.

W. C—7.

been naturalized, his affidavit must also show the date, place, and the Court before which he declared his intention, or from which his certificate of citizenship issued. 1

§ 50. Foreign corporation.—A corporation created and existing under the laws of England is not a citizen of the United States, and not capable of asserting a claim to any portion of the public land of the United States, or of receiving from the Government a title therefor. A " fund, " being neither a person nor an association, without legal existence, and powerless to " occupy and improve " a claim, or perform those acts of ownership or possession required of miners, as conditions essential to the holding of claims, cannot make locations under the United States mining laws. 2

§ 51. Restriction as to proof.—The operative sections of the Act of 1872 bring to the executive cognizance the applicant and the adverse claimant, and to them applies its rule of proof of citizenship. Proof of citizenship of the applicant for the patent, is sufficient; proof of citizenship of the original locators, and intermediate owners, is not necessary. The rule applies to the applicant and no one else, unless it be the adverse claimant. 3

1 Application of Mooney, Decision of Acting Secretary, July 29th, 1876, reversing Decision of Commissioner, S. C. 3 Copp's Land-owner, 68.

Alien soldiers. —A party made affidavit that he was born in Germany; that he came to this country at the age of six years, and that he had an honorable discharge from the army. In case his parents became naturalized before he arrived at the age of twenty-one, it was held that proof should bo made of this point, as ho would then be regarded as a citizen. The 21st sect ion of the Act of Congress, approved July 17th, 1872, (12 Stats. 597) provides that any alien who has an honorable discharge from the regular or volunteer army may become a citizen of the United States, upon his petition, without any previous declaration of intention. The applicant afterward made affidavit that his father was naturalized in Wisconsin before he, the son, arrived at the age of twenty-one, and, in the absence of an adverse claim, a patent was issued to him. Decision of Commissioner, August 13th, 1872, Copp's U. S. Mining Decisions, 134.

2 In re Gunboat Lode; Decision of Commissioner, June7th, 1871; Copp's U. S. Mining Decisions, 43.

s Decision of Commissioner, Dec.l4th, 1874; In re King of the West Lode; City Rock & Utah Claimants v- Pitts, 1 Copp's Land-owner, 146; In re Cash Lode Sept. 7th, 1874,1 Copp's Land-owner, 98; Opinion of Assistant Attorney-General, New Idria Case, Land Office Report, 1871, 58,59, 60; Djid. pp. 81, Circular Instructions, Aug. 3d, 1871, Sept. 7th, 1871, March 26th, 1872, June 10th, 1872, paragraph 93

CHAPTER V.

LOCATORS' RIGHT OF POSSESSION AND ENJOYMENT OF SURFACE GROUND, AND OF THE LODE.

§ 60. Locators' rights of possession and enjoyment.

§ 61. Status of lode-claims previously located.

§ 62. Patents for veins or lodes previously issued.

5 63. Priority of location, importance of.

§ 60. Locators' rights of possession and enjoyment.—

Section 2322 of the Revised Statutes reads as follows: " The locators of all mining locations heretofore made or which shall hereafter be made, on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim exists on the tenth day of May one thousand eight hundred and seventy two, so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside of the vertical side-lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end-lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another." 1

iRev. Stats. 2322, Sec. 3, Act 1872,17 Stats. 91. See Sees. 2320, 2324, Rev. Stats. U. S.

§ 61. Status of lode-claims previously located.—The

status of lode-claims located previously to the Act of 1872 was not changed by that act with regard to their extent along the lode or width of surface, such claims being restricted and governed, both as to their lateral and linear extent, by the State, Territorial, or local laws, customs, or regulations which were in force in the respective districts at the date of such location, in so far as the same did not conflict with the limitations fixed by the Act of 1866. (14 U. S. Stats. 251. 1 )

Mining rights, acquired under such previous locations, were, however, enlarged by the Act of May 10th, 1872, in the following respect, viz: The locators of all such previously taken veins or lodes, their heirs and assigns, so long as they comply with the laws of Congress, and with State, Territorial, or local regulations, not in conflict therewith, governing mining claims, are invested by the act with the exclusive possessory right of all the surface inclosed within the lines of their locations, etc., as fully provided in Sec. 3, Act 1872. 2

The law limits the possessory right to veins, lodes, or ledges, other than the one named in the original location, to such as were not adversely claimed at the date of the Act of May 10th,1872 ; and where such other vein or ledge was so adversely claimed at that date, the right of the party so adversely claiming is in no way impaired by said act, 3 or by the Revised Statutes.

§ 62. Patents for veins or lodes previously issued.—

Rights under patents for veins or lodes, granted under previous legislation of Congress, were enlarged by the Act of 1872, so as to invest the patentee, his heirs or assigns, with title to all veins, lodes, or ledges, as they are fully described in Section 3, Act of 1872, (Revised Statutes, Sec. 2322) providing for a locator's rights of possession and enjoyment; but all veins, lodes, or ledges, the top or apex of which lies inside such surface

1 Instructions June 10th, 1872, Subdivision 2; Instructions February 1st, 1877, Subdivisions 2-6.

2 Rev. Stats. 2322; Instructions June 10th, 1872, Subdivision 3; Instructions February 1st, 1877, Subdivisions 2-6.

8 Instructions June 10th, 1872, Subdivision 4; Instructions February 1st, 1877, Subdivisions 2-0.

locations, other than the one named in the patent, which were adversely claimed at the date of the act, are excluded from such conveyance by patent. 1

Applications for patents for mining claims, pending at the date of the Act of May 10th, 1872, may be prosecuted to final decision in the General Land Office, and where no adverse rights are affected thereby, patents will be issued, in pursuance of the provisions of the law. 2

§ 63. Priority of location is of great importance in the title of mining property; the older the better. The Act of 1872 protects mining claims located previous thereto, and gives the owners all lodes within their surface ground, not adversely claimed at the date of the act. After that date, no person has the right to prospect for veins on another party's surface ground ; and where the old mine is held in accordance with local and Congressional law, another claim cannot lawfully be extended so as to embrace any part of the surface ground or veins owned under the old location. 3

In all cases where a party claims a lode which has been relocated, he should furnish proof that the re-location was made in accordance with the local law, and that he was entitled to relocate it.4

iInstructions June 10th, 1872, Subdivisions 7. 8; Instructions February 1st, 1877, Subdivisions 2-6. 2 Ibid. Subdivision 8; Ibid. •Copp's Land-owner, 31.

?Decision of Commissioner, Sept. 25th 1873; Copp's U. S. Mining Decisions, 225. See, as to locations under mining customs and regulations, Blanchard & Weeks' Leading Cases on Mines and Mining Water Rights, Chaps. 7-a there has always existed in the Courts of Equity the power in certain classes of cases to inquire into and correct mistakes, injustice, and wrong in both judicial and executive action, however solemn the form which the result of that action may assume, when it invades private rights; and by virtue of this power the final judgments of Courts of Law have been annulled or modified, and patents, and other important instruments issuing from the crown or other executive branch of the government, have been corrected, or declared void, or other relief granted.'

" We see nothing in the case before us to take it out of the operation of that rule, and we are of opinion that, in this action at law, it would be a departure from sound principle, and contrary to well-considered judgments in this Court and in others of high authority, to permit the validity of the patent to the State to be subjected to the test of the verdict of a jury on such oral testimony as might be brought before it. It would be substituting the jury, or the Court sitting as a jury, for the tribunal which Congress had provided to determine the question, and would be making a patent of the United States a cheap and unstable reliance as a title for lands which it purported to convey.

" The learned judge of this Court who presides in the Califor nia Circuit, has called our attention to a series of decisions of the Supreme Court of that State in regard to this swamp-land grant, commencing with 27 Cal. 87, 1 in which a different doctrine is announced. But with all the respect we have for that learned Court, we are unable to concur in the views therein expressed. The principle we have laid down is in harmony with the system which governs the relations of the Courts to the officers of the executive departments; especially those having charge of the public lands, as we have repeatedly decided, and we must abide by them.

" We do not mean to affirm that there is anything in the case before us, as it is here presented, which would justify a resort to a Court of Chancery; we merely mean to express our conviction that the only mode by which the conclusive effect of the

1 Kernan v. Griffith.

patent in this case can be avoided, if it can be done at all, is by a resort to the equitable jurisdiction of the Courts.

" The case of the Railroad Company v. Smith, 9 Wall. 45, is relied on as justifying the offer of parol testimony in the one before us. In that case it was held that parol evidence was competent to prove that a particular piece of land was swamp land, within the meaning of the act of Congress.

" But a careful examination will show that it was done with hesitation, and with some dissent in the Court. The admission was placed expressly on the ground that the Secretary of the Interior had neglected or refused to do his duty ; had made no selection or lists whatever, and would issue no patents, although many years had elapsed since the passage of the act. There was no means, as this Court has decided, to compel him to do so, and if the party claiming under the State in that case could not be permitted to prove that the land which the State had conveyed to him as swamp lands was in fact such, a total failure of justice would occur, and the entire grant to the State might be defeated by this neglect or refusal of the Secretary to perform his. duty. (Gaines v. Thompson, 7 Wall. 347; Secretary v. McGarrahan, 9 Wall. 298; Litchfield v. The Register and Receiver, 9 Wall. 575.) The Court said in that case : " The matter to be shown is one of observation and examination ; and whether arising before the Secretary, whose duty it was primarily to decide it, or before the Court xohose duty it became, because the Secretary had failed to do it, this was clearly the best evidence to be had, and was sufficient for the purpose."

" There is in this no conflict with what we decide in the present case, but, on the contrary, the strongest implication that if, in that case, the Secretary had made any decision, the evidence would have been excluded." The judgment of the Circuit Court was affirmed. 1

§ 82. Adverse occupation as against a patent.—A patent is the instrument which, under the laws of Congress, passes the title of the United States. It is the Government convey

1 See, also, Gaines v. Thompson, 1 Wall. 352; Kendall v. U.S. 12 Pet. 61S; Comr. v. Whlteley, 4 Wall. 522; Recside v. Walker, 11 How. 272; TJ. S. v. Guthrie, 17 Wall. 284; Decatur v. Paulding, 14 Pet. 479; Brashear v. Mason, « How. 92; U. 8. i,.Comr. 5 Wall. 563; U. S. v. Seaman, 17 How. 230.

ance. If other parties possess equities superior to those of the patentee, upon which the patent issued, a Court of Equity will, upon proper proceedings, enforce such equities, by compelling a transfer of the legal title, or enjoining its enforcement, or canceling the patent. But, in an action of ejectment, the legal title must prevail in all the Federal Courts; and a patent, when regular on its face, is conclusive evidence of that title. So, also, in the action of ejectment in the State Courts, when the question presented is whether the plaintiff or the defendant has the superior legal title from the United States, the patent must prevail. Neither in a separate suit in a Federal Court, nor in an answer to an action of ejectment in the State Courts, can mere occupation of the demanded premises by either party for the period prescribed by the Statute of Limitations of the State, be held to constitute a sufficient equity in their favor to control the legal title subsequently conveyed to others by the patent of the United States. The power of the United States to dispose of 'its public lands cannot be defeated nor obstructed by any occupation of the premises before the issue of the patent, under State legislation, in whatever form of tribunal such occupation be asserted. 1

§ 83. The patent, what is granted.—What is granted by the United States to the patentee of a vein or lode-claim may be thus stated: A patent granted for a mining claim under the Act of 1866, by the express provision of the act, conveyed to the grantee thererein named the surface ground embraced within the exterior boundaries of the survey, and the particular lode named in the patent for the number of feet patented along the course thereof, with all its dips, angles, and variations, although it might depart from the surface ground described in the survey and enter the land adjoining.

Where the application for patent was pending under the Act of 1866, on the 10th day of May, 1872, none of the rights which

i Gibson v. Chouteau, 13 Wall. U. S. 92, reversing 8. C. 39 Mo. 588; Wilcox v. Jackson, 13 Pet. 510; Irvine v. Marshall, 20 How. U. S. 558; Fen o. Holme, 21 How. U. S. 481; Lindsey v. Miller, 0 Pet. 072; Stephenson 0. Smith, 7 Mo. 010; Barry v. Gamble, 8 Id. 881; Cunningham v. Ashley, 14 How. 377; Lindsey v. Hawes, 2 Black. 554; Stark o. Starrs, 0 Wall. 402; Johnson v. Towsley, 13 Wall. 72; Bagnell v. Broderick, 13 Pet. 450.

the applicant had acquired by virtue of compliance with the Act of 1866 were in any way affected or impaired, and patents issued upon such applications conveyed the same rights which were conveyed under the Act of 1866, together with all other veins or lodes, the tops or apexes of which lie inside the exterior boundaries of the surface ground patented, to the extent and in the manner provided by the third section of the Act of 1872. 1

§ 84. Who may apply.—The real owners of the mine, having also the possessory title to the lode, are the persons to whom it is proper to deliver the patent, notwithstanding that they may not be parties named in it as it was originally made out. 2

Joint owners must jointly apply. Where several parties own undivided interests in a mining claim, all the owners must join in an application; and where several parties own separate and distinct portions of a claim, application for a patent may be made by either for the portion he desires. 3

A patent may issue to an assignee of the applicant. In such case it is necessary for the party to file in the commissioner's office the duplicate receiver's receipt, Vith an indorsement thereon of the applicants, of all right, title, and interest in the lodes. 4

Patented ground is subject to entry by adjoining proprietors where the patent provides that the premises conveyed are subject to be entered by any adjoining proprietors of a vein or lode of gold, silver, cinnabar, or copper, in exploring or operating such vein or lode. 5

§ 85. Evidence of ownership—Deraigning title—Identity of applicant—Transfers.—Patents for mining claims are

1 In re Hercules Lode and Seven-Thirty Lode, Decision Commissioner, August 17th, 1874,1 Copp's Land-owner, 83; Decision Commissioner, December 20th, 1872, Copp's U. S. Mining Decisions, 154; Rev. Sts. U. S. 2322.

2 Jn re Chicago and Clear Creek G. & S. M. Co. Decision Acting Commissioner, April 4th, 1872, Copp's.U. S. Mining Decisions, 85.

3 Decision of Commissioner, February 18th, 1873, Copp's U. S. Mining Decisions, 159.

* Decision of Commisioner, Oct. 2d, 1872; In re Vespasian Lode, Copp's U. S. Mining Decisions, 146.

& In rc Idaho Lode, Decision of Commissioner, July 22d, 1869; Copp's U. S. Mining Decisions, 21.

issued to the parties named in the register's certificate of entry. If any conveyance has taken place after the original applicants have commenced proceedings for a patent, but before the entry is made at the local office, the register's certificate and the receiver's receipt must be made out in the name of the grantee. Upon filing a deed in the General Land Office, the register and receiver will be instructed to so make out the certificates and receipts.

If, however, the transfer takes place after the date of entry, an indorsement should be made upon the duplicate receipts by the applicant for a patent, assigning all right and title in and to the premises therein described. The patent will then issue in the name of the grantee. 1

Transfer of interest from the original locators to the applicant for patent must be shown. The identity of the parties must also be satisfactorily established. Where this is done, a difference in the name of the same party, as used in the deeds, or the abstract of title, is not fatal to the application.

It is also well to have on file full and complete copies of the respective conveyances showing title in the applicants, but abstracts of title are held sufficient. 2 They must, however, be complete and not partial. 3

In the case of the Kempton mine, it was objected that it did not appear that one B. F. Buck, one of the original locators, ever transferred his interest. The Secretary, in deciding the case, said: " The original application for the Kempton patent, which is sworn to by five different persons, alleges that' Samuel Buck, under the name of B. F. Buck,' was one of the original locators, and that the said Samuel had transferred his interest in the mine to John Segus, who was one of the applicants for patent. There is, in the abstract of title furnished, a certificate of the recorder of the conveyance from Samuel Buck to the said Segus. I think this is sufficient. Names are arbitrary. Identity is the important matter, and the identity of Samuel

1 Decision of Commissioner, March 8th, 1873, Copp's U. S. Mining Decisions, 162.

2 In re Kempton Mine, Decision of Secretary of Interior. Jan. 2d. 1875, 1 Copp's Land-owner, 178.

8 Decision of Comr. Jan. 6th, 1874; Copp's M. D. 340.

In re Crown Point Lode, Decision of Commissioner, November 5th, 1874, 1 Copp's Land-owner, 133.

§ 149. What are Courts of competent jurisdiction.—In

the case of the 420 Mining Company v. the Bullion Mining Company, 1 the case was tried in the District Court for the First Judicial District of Nevada, the Court having original jurisdiction in this class of cases. The Court found, as a matter of fact, that the Bullion Company had title to the land in contest; that the 420 Company had no title, and that the Bullion Company had been in exclusive possession since the year 1865. Judgment having been entered for the defendant, and appeal having been taken, the appellate tribunal, the highest in the State, unanimously affirmed the decision of the Court below. The Department, in 1874, considered this as a final adjudication by " Courts of competent jurisdiction." The Secretary, on appeal, said: "I see no good reason now for changing the opinion then expressed. I do not understand that the Supreme Court of the United States has jurisdiction over this class of cases upon writ of error. It certainly cannot change the facts found by the Court below. These facts conclusively establish the right of the Bullion Com

1 Decision of Secretary, March 22d, 1875, 2 Copp's Land-owner, 5. See 9 Nevada, 240.

pany to the possession of this lode under local laws, so far aa that question can be considered by the Department in connection with a possible further stay of proceedings. The Department is only authorized to stay proceedings until the right of possession has been finally adjudicated in the Courts of competent jurisdiction. I think such rights have been so finally adjudicated, where facts are finally found which unmistakably control their disposition." And for the reason that the 420 Company had failed to commence suit within reasonable time after filing its adverse claim, and its suit, when brought, having, so far as the questions before the Department were concerned, been finally decided in favor of the Bullion Company, the former company was held not entitled to any further stay of proceedings.

§ 150. Contest in Court—Jurisdiction.—The meaning of Section 2326 of the Revised Statutes U. S. is, that all cases which may arise in the disposal of the mineral lands, shall be tried and determined, if tried at all, in a Court of competent jurisdiction; that the adjudication and determination of that Court shall be final, and a patent for the tract in controversy shall issue to the successful party or parties, upon showing further compliance therewith. It is equally clear that when the Court has acquired jurisdiction of the subject-matter in controversy, all other proceedings except those mentioned must be stayed until such determination is made, if the suit be prosecuted with reasonable diligence.

The only question which can ever rise is, whether the adverse claimant has complied with the terms of the act, so as to bring his case within it. He must file his claim during the period of publication, showing its nature, boundaries, and extent, and bring suit for the recovery of the possession of it within thirty days thereafter, or be deemed to have waived it. When he has done all this, according to law, it is only necessary for the Department to pass upon the regularity of the claim, leaving the rights of the parties to be determined by the Court. 1

It is the duty of all the officers under whose notice an adverse

1 C. T. M. Co. o. Pell, Decision of Secretary, Feb. 17th, 1877, 3 Copp's Landowner, 195.

Skc. 8. That when in any suit, commenced in any Circuit Court of the United States, to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought, ono or more of tho defendants therein shall not be an inhabitant of, or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the Court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur, by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there bo; or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the Court may direct, not less than once a week for six consecutive weeks; and in caso such absent defendant shall not appear, plead, answer, or demur, within the time so limited, or within some further time, to be allowed by the Court in its discretion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the Court to entertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the Court therein, within such district. And when a part of tho said real or personal property against which such proceeding shall bo taken shall be within another district, but within tho same State, said suit may be brought in either district in said State : Provided, however, That any defendant or defendants not actually personally notified as above provided, may, at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said Circuit Court, and thereupon the said Court shall make an order setting aside the judgment therein, and permitting said defendant or defendants to plead therein, on payment by him or them of such costs as the Court shall deem just; and thereupon said suit shall be proceeded with to final judgment according to law.

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

J1 Stats. 464.

^Yale's Mining Claims, 379, 380.

laws, and decisions of Courts, by which those rights are primarily regulated. 1

§ 202. Conditions as to vested water rights inserted in patent.—To avoid all misapprehension and uncertainty it was determined by the Land Office in all patents granted in mineral regions of the United States, to insert an additional clause or condition expressly reserving and protecting water rights, and making the patent subject thereto the same as before it was granted. 2

Water privileges are, since May 10th, 1872, located in the same manner as mines, subject to local regulations, i. e. by definitely locating the five acres by monuments, and recording with the district or county recorder. If the local rules and decisions of Courts make the privilege forfeitable for non-user, another party may come in and claim the water-right. 3

§ 203. Mining ditch in railroad grant.—A grantee of a railroad company brought suit to abate a water ditch as a nuisance. The defendant showed that prior to the Act of Congress 'of July 26th, 1866, it had acquired a right to the use of the water of a mining ditch, " which right was recognized and acknowledged by the local customs, laws, and decisions of Courts." That act operated a grant to it of the right of way, and of the ditch through which the water was running at the date of the passage of the act. The subsequent grantees of the United States of tracts through which the ditch ran, were held to take subject to this easement, and judgment went for defendant. 4

§ 204. Conflicting rights of ditch-owners and miners.

—In an application by a ditch-owner for an injunction to prevent miners from excavating across the plaintiff's ditch, plaintiff claimed under the Act of Congress of 1866 and the Act of 1870. The provisions of these statutes and of the Act of 1872, it was held, should be considered and construed together, and it

1 Decision of Commissioner, November 23d, 1869, Copp's V. S. Mining Decisions, 24. "Ibid. March 21st, 1872, Pjid. 82.

• 1 Copp's Land-owner, 31.

* Broder v. Natoma W. & M. Co. 50 Cal. 621.

Civil Code of Cal. Sec. 1410, Eddy v. Simpson, 3 Cal. 249; Irwin p. Phillips, S Cal. 140; Kiddo. Laird, 15 Cal. 161; Hoffman v. Stone, 7 Cal. 49; McDonald e. Bear River Co. 13 Cal. 220; Ortman v. Dixon, 13 Cal. 34; Ruploy v. Welch, 23 Cal. 452; McDonald v. Askew, 29 Cal. 200; Nevada Water Co. v. Powell 34 Cal. 109; The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such a purpose, the right ceases. 1 The person entitled to the use may change the place of diversion, if others arc not injured by such change, and may extend the ditch, flume, pipe, or aqueduct by which the diversion is made, to places beyond that where the first use was made. 2 The water appropriated may be turned into the channel of another stream and mingled with its water, and then reclaimed ; but in reclaiming it, the water already appropriated by another must not be diminished. 3 As between appropriators the one first in time is the first in right. 4 A person desiring to appropriate water must post a notice, in writing, in a conspicuous place at the point of intended diversion, stating therein :

1st. That he claims the water there flowing to the extent of ^giving the number) inches, measured under a four-inch pressure.

2d. The purpose for which he claims it, and the place of intended use.

3d. The means by which he intends to divert it, and the size of the flume, ditch, pipe, or aqueduct in which he intends to divert it.

A copy of the notice must, within ten days after it is posted, be recorded in the office of the recorder of the county in which it is posted. 5 Within sixty days after the notice is posted, the

Davis v. Gale, 32 Cal. 26. Water flowing in a ditch not the subject of actual partition; sale and distribution, the only mode of disposing of it. McGillivray v. Evans, 27 Cal. 92.

* Civil Code Cal. 1411; Weaver v. Eureka Lake Co. 15 Cal. 271; McKinneyv. Smith, 21 Cal. 374; HUle. Smith, 27 Cal. 476; American Co. v. Bradford, 27 Cal. 360; Ortman v. Dixon, 13 Cal. 34; McDonald v. Bear River Co. 13 Cal. 220; Davis v. Gale, 32 Cal. 22; Nevada Water Co. v. Powell, 34 Cal. 109.

* Civil Code Cal. Sec. 1412; Kidd v. Laird, 15 Cal. 161; Butte Table Mt; Co. v. Morgan, 19 Cal. 009; Union Water Co. v. Crary, 25 Cal. 504.

» Civil Code Cal. 1413; Richardson v. Kier, 34 Cal. 63; Butte Canal and Ditch Co. v. Vaughan, 11 Cal. 143; Hoffman v. Stone, 7 Cal. 46.

* Butte Canal and Ditch Company v. Vaughan, 11 Cal. 143; Kidd v. Laird, 51 Cal. 161; Weaver v. Conger, 10 Cal. 233: B. R. & A. W. & M. Co. v. N. Y. Co. 8 Cal. 327; Hill o. King, 8 Cal. 336; Davis v. Gale, 32 Cal. 26; Eddy v. Simpson, 3 Cal. 249; Irwin o. Phillips, 5 Cal. 140; Maeris v. Bicknell, 7 Cal. 261; McDonald v. Askew, 29 Cal. 200; Ortman v. Dickson, 13 Cal. 33; Phoanix Water Co. v. Fletcher, 23 Cal. 481; Civil Code Cal. 3525.

« Civil Code Cal. Sec. 1415; Thompson v. Lee, 8 Cal. 275; Weaver v. Eureka claimant must commence the excavation or construction of the works in which he intends to divert the water, and must prosecute the work diligently and uninterruptedly to completion, unless temporarily interrupted by snow or rain. 1 By " completion " is meant conducting the waters to the place of intended use. 2 By a compliance with the above rules, the claimant's right to the use of water relates back to the time the notice was posted. 3 A failure to comply with such rules deprives the claimant of the right to the use of the water as against a subsequent claimant who complies therewith. 4 Persons who have heretofore claimed the right to water, and who have not constructed works in which to divert it, and who have not diverted nor applied it to some useful purpose, must proceed as in the Title provided, or their right ceases.

The recorder of each county must keep a book in which he must record the notices provided for. The rights of riparian proprietors are not affected by the provisions of the Title. 5

§ 207. Existing water rights obtained by patent not affected.—The status of water rights obtained through patent was carefully examined in the case of Union M. Co. v. Ferris, 2 Sawyer, U. S. C. C. 176, a case arising in the United States Circuit Court for Nevada. The effect of the Act of 1866 upon existing water rights obtained through a patent from the United States was thoroughly discussed. The action was commenced to enjoin the defendant from an alleged wrongful diversion of water from Carson River, Nevada. Plaintiff's grantors had located as a possessory claim the land upon which a certain mill was constructed. A dam and mill-race for conducting the water to the mill were also made. The mill had been propelled by

Lake Co. 15 Cal. 271; Kimball v. Gearheart, 12 Cal. 27; Parke v. Kilham, 8 Cal. 77.

1 Civil Code Cal. Sec. 1416; Kimball v. Gearhart, 12 Cal. 27; Weaver v. Eureka Lake Co. 15 Cal. 271; Thompson v. Lee, 8 Cal. 275.

2 Civil Code Cal. Sec. 1417.

8 Civil Code Cal. Sec. 1418; Kimball v. Gearheart, 12 Cal. 27; Weaver o. Eureka Lake Co. 15 Cal. 271.

* Civil Code Cal. Sec. 1419; as to construction of rules as to forfeiture of possessory rights. Coleman v. Clements, 23 Cal. 245; Wiseman o. McNulty, 25 Cal. 230; St. Johns v. Kidd, 26 Cal. 263; Packer v. Heaton, 9 Cal. 568; McGarrity v. Byington, 12 Cal. 426.

' Civil Code Cal. Sees. 1420, 1421, 1422.

the water of the river, and been run for the purpose of reducing metalliferous ores. The plaintiff had become the owner in fee of the land, having procured patents from the United States. The waters of the river naturally flowed through the land. It was found that the plaintiff, by virtue of his ownership of the lower premises, had a right to have the water of the river flow through the premises, unaffected by any right arising out of an adverse use as against the upper premises, unless there was something in the Act of July 26th, 1866, qualifying that right in respect to the lower premises. The effect of this act was then considered, and especially the effect of the ninth section. 1 The act was held not to qualify in any manner the patent of either plaintiff or defendant, as the act was general and did not operate retrospectively, and was passed subsequently to the patents. Hillyer, U. S. District Judge for Nevada, in arriving at the above conclusion, said :

" Prior to the passage of this act, the policy of Congress had been, as shown by its legislation, to grant to purchasers of the public land the bed of a non-navigable stream flowing through the land sold, and the lines of sections were run without reference to the meanderings of such stream ; so that the purchaser of land through which a non-navigable stream flowed, took the bed of the stream and such riparian rights to the water of the stream as belong to the owner of the soil. Several attempts had been made to provide by law for the survey and sale of the mineral lands; the survey to be rectangular, as in case of other lands. These attempts had always been successfully resisted by mining communities, because, among other reasons, such a survey and sale would have been ruinous to the possessors of quartz lodes, which do not descend perpendicularly, but at a greater or less angle. For seventeen years prior to 1866, the mineral land of California and Nevada had been occupied by citizens of the United States, without objection on the part of the Government ; canals and ditches were dug during this time, often at great expense, over the public lands, and the water of the streams diverted by these means for mining and other purposes. Local customs grew up in the mining districts by common con

1 li V.B. Stats. 253, same as Rev. Stats. 2339.

sent, and by rules adopted at miners' meetings for governing the location, recording, and working of mining claims, in the particular mining districts. Possessory rights to public lands, mining claims, and water were regulated by State statutes, and enforced in the State Courts. The rules, customs, and regulations of the miners were also recognized by the Courts and enforced in trials of mining rights. The Courts not applying, in all respects, the doctrines of the common law respecting riparian owners in deciding between these possessors, none of whom had title to the soil, recognized a species of property in running water, and held that he who first appropriated the waters of a stream to a beneficial purpose, had, to the extent of his appropriation, the better right as against persons subsequently locating on the stream above or below ; and that the first appropriator might conduct the water in canals, ditches, and flumes wheresoever he pleased, and apply it to whatsoever beneficial purpose he saw fit, without any obligation to return it to the stream whence it was taken, or preserve its purity or quantity. (Kidd v. Laird, 15 Cal. 161; Weaver v. Eureka Lake Co. Id. 271; Lobdell v. Simpson, 2 Nev. 272; Ophir S. M. Co. v. C. Carpenter et al. 4 Nev. 534.) ' In this posture of affairs, the persons who had constructed these canals and ditches, at an expense of hundreds of thousands of dollars, in many instances, over the public land, saw when the question of the sale of those lands was agitated, that should such sale be made, they, as to these possessory rights, would be at the mercy of the buyer of the legal title, without some protective legislation.

" The Act of 1866, Section 9, of which we have quoted in part, was a consequence of this state of things. It gives the possessor of a quartz lode a right of pre-emption, and it declares that the person who has acquired a right to the use of water, by priority of possession, shall be maintained and protected in the same, if such right is recognized and acknowledged by the local customs, laws, and decisions of Courts. The policy of this enactment—so far, at least, as it relates to agricultural districts —may be doubtful; but it is the law of the land, and the Courts must carry out what appears to be the intention of the legislature as therein expressed. And that, as indicated by the act, appears to be to grant to the owner of possessory rights to the use of water, under the local customs, laws, and decisions, the absolute right to such use, which the Government alone could grant. Under this law, when a possessory right to the use of water is claimed, whether or not such right exists, will be determined by reference to the local customs, laws, and decisions, and the question will be determined just as it would have been had it been raised between occupants before the title to the land had passed from the Government. When the right is thus ascertained, the statute has the force of confirming it to the person entitled under the local laws and decisions. But the act is prospective in its operation, and cannot be construed so as to divest a part of an estate granted before its passage. If it be admitted that Congress has the power to divest a vested right by giving a statute a retrospective operation, that interpretation will never be adopted without absolute necessity. (Blanchard v. Sprague, 3 Sum. 535; Vansickle v. Haines, 7 Nev. 249.)

" But if, when the act was passed, the defendant had such a right, by priority of possession, as that act contemplates, upon the construction which must be given, that right is confirmed in him, and he is entitled to protection as against one claiming as riparian proprietor merely, through a patent issued after, and when no right had vested in the patentee, before the act became a law. The statute is, in effect, incorporated into such subsequent patent, and operates as an exception out of the estate granted to the complainant by the patent of October 10th, 1866. If we have rightly interpreted the act of Congress, and the operation of the patents issued before and after the passage of that act is as we have stated, the case stands in this wise: The defendant's claim, by virtue of adverse enjoyment, falls to the ground, because sufficient time has not elapsed since the lower premises were conveyed by the Government. He cannot sustain his claim by force of the act of Congress, because the complainant's patents of September, 1864, were made before the act was passed, and conveyed the upper premises absolutely, and free from any claims by prior possession merely. We have hitherto been considering the questions of prescription and the act of Congress separately, as it was desirable to determine the effect of the act, and of the patents upon these water rights. But the complainant, having taken the lower premises, subject to such right as the defendant had acquired by priority of possession and the Act of Congress of 1866, if he had also acquired by adverse use a right, as against the proprietors of the upper premises, to divert and use the same quantity of water in the same manner that he would have by virtue of his prior appropriation, this would be a complete defense to this action, for the complainant's right would not be infringed by the diversion, either as proprietor of the upper or lower premises. It is, therefore, necessary to ascertain whether there has been, in fact, such adverse use by defendant as affords a presumption of a grant from the proprietors of the upper premises of the complainant."

After a review of the testimony, this claim of defendants to a prescriptive right was denied. The diversion and, to some extent, unreasonable use by defendant was established, but the case was referred to a master for further testimony, in order to ascertain what kind of a decree should be entered. 1

As the patent to agricultural land, when issued, relates back to the inception of title, i. e. the original entry and payment, one who entered and paid for this land prior to the passage of the Act of 1866, has his land and the water upon it unaffected by that act. 2

§ 208. Effect upon previous diversion of water on patented lands.—In Van Sickle v. Haines, 3 the Supreme Court of Nevada found occasion to discuss the effect of the Act of 1866 upon water rights and the prior diversion of water upon the public lands. The action was for damages, and an injunction to restrain further diversion of a portion of a small tributary of the Carson River in the State of Nevada, and called Daggett Creek. In 1857 the plaintiff had diverted by a ditch, for irrigating and domestic purposes, one-fourth of the water of the creek. He made the diversion at a point then on the public land, but which, in 1864, was patented by the United States to the defendant. In 1865 the plaintiff obtained a patent for his own land, where he used the water. In the fall of 1867,

1 Union M. and M. Co. v. Ferris, 2 Sawyer, U. S. C. C. 176. See, also, Union M. and M. Co. v. Dangberg, Id. 450.

2 Union M. and M. Co. v. Dangberg, 2 Sawyer, U. a C. C. 4SL 8 7 Nevada, 249.

defendants constructed a wood flume on defendant Haines' land, and turned into it all the water of the stream, thereby depriving the plaintiff of that part of it which he had been using, and which was the subject-matter of the action. The Court, in deciding the case, maintained that a diversion of water on the public lands confers no right as against the Government; that there is no presumption of a grant as against the Government; that a patent to land from the United States passes to the patentee the unincumbered fee of the soil, with all its incidents and appurtenances, among which is the right to the benefit of all streams of water which naturally flow through it; that the Government of the United States has the absolute and perfect title to and is the unqualified proprietor of all public lands to which the Indian title has been extinguished; 1 and that, as running water is an incident to or part of the soil over which it naturally flows, a patent carries it, if naturally flowing, and also carries the right to its use, and the same right to recover for a diversion of it, as the United States or any other absolute owner could have.

That the right of the riparian proprietor does not depend upon the appropriation of the water by him to any special purpose, but that it is a right incident to his ownership in the land to have the water flow in its natural course and condition, subject only to those changes which may be occasioned by such use by the proprietors above him as the law permits them to make of it, and that the common law was the law of the State and must prevail in all cases where the right to water is based upon the absolute ownership of the soil. Lewis, C. J., delivering the opinion of the Court upon petition for rehearing, said: " As the appellant here claims the water of Daggett Creek as an incident to the land patented to him by the United States, and as it is admitted that he could get only such title and right as was vested in the United States itself, it becomes necessary to ascertain what is the nature of the rights of the Federal Government

1 Van Sickle v. Haines, 7 Nev. 249; Irvine v. Marshall, 20 How. U. S. 561; Jourdan v. Barrett, 4 How. U. S. 185; Bagnell v. Brodnill, 13 Pet. 450; U. 8. v. Hughes, 11 How. U. S. 568; U. S. v. Gratiot, 14 Pet. 526; U. S.o. Gear, 3 How. U. 8. 20; Colton v. U. S. 11 Id. 231; 1 Opinion U. S. Attorney-General, 471; 1 Wood. & M. 82.

to the public land; and we propose to show : 1st. That it has the absolute and perfect title; 2d. That running water is primarily an incident to or part of the soil over which it naturally flows ; 3d. That the right of the riparian proprietor does not depend upon the appropriation of the water by him to any special purpose, but that it is a right incident to his ownership in the land to have the water flow in its natural course and condition, subject only to those changes which may be occasioned by such use by the proprietors above him as the law permits them to make of it; 4th. That the government patent conveyed to Haines not only the land, but the stream naturally flowing through it; 5th. That the common law is the law of this State, and must prevail in all cases where the right to water is based upon the absolute ownership of the soil." 1

The Court strongly repudiated the idea that the General Government had in any way indicated it to be its policy to permit the diversion of streams from their natural channel on the public lands, and further said: "It is clearly manifest, from the preemption laws, that no such policy has ever been sanctioned by it. The only rights which can be acquired to the public agricultural lands are provided for by the pre-emption laws, and the manner of obtaining such rights is specifically set out, and no right to or interest in that character of land can generally be acquired from it, except by means of and by pursuing the requirements of those laws. As it has specifically provided the course to be pursued, and designated the rights which will be recognized, it cannot be said that it has sanctioned any policy or means of acquiring such right, except those designated. But the right to divert water from a natural water-course, it must be admitted, creates an interest in the land from which the diversion is made, in favor of him having the right. (An

1 Vansicklc v. Haines, 7 Nevada, 200. See, also, Corning v. Troy Iron and Nail Factory, 40 N. Y. 206; Mason v. Hill, 5 15. & Ad. 22; Embrey v. Owens, 6 Exch. 333 ; 3 Kent's Com. 411; 10 Ohio, 297; Gardner o. Newburgh, 2 Jobn. Ch. 106; Ex parte; Jennings, 0 Cow. 543; Wadsworth v. Tillotson, 15 Conn. 372; Elliott o. Fitchburg H. It. Co. 10 Cush. 193; Johnson v. Jordan, 2 Met. 23t>; Page r. Williams, 2 Dev. & B. 55; 8 Cal. 140; Davis v. Fuller, 12 Vt. 190; 20 Wend. 413: Bealcy v. Shaw, 0 East, 208; I,ugh v. Wheeler, 2 Dev. & B. 50; Crocker o. ISragg, 10 Wend.; United States o. Ames, 1 Woodb. & M. 76; Railroad v. Schurmeir, 7 Wall. U. S. 272; Wileoxon o. McGhee, 12 111. 381; Angell on WaterCourses, Sec. 141; 2 Washb. Real. Pr. 08.

gell on Water-Courses, Sec. 314.) Further than this, the right to divert carries with it the right to go upon the land through which the ditch or flume is conducted, and upon which the dam, by means of which the diversion may be effected, is built, to keep them in repair.

" Suppose, for example, that the dam built by Vansickle for diverting this water from the creek was on land purchased by Haines from the United States, and the ditch through which it was conducted ran through such land: now if Vansickle acquired the right to divert the water as against the United States, he has the same right as against Haines; and that right necessarily gives him the privilege, at any and all times, when he may choose, to go upon the land of Haines to keep his ditch and dam in repair—which, in itself, would be an interest in Haines' land. (Angell on Water-Courses, Sec. 141; 2 Washburn on Real Property, 68.) And thus, contrary to all pre-emption laws and the manifest policy of the government as embodied in them, a person may get an interest in public land beyond his one hundred and sixty acres. All the acts of Congress ever adopted up to 1866, clearly show that it has never been the policy of the United States to sanction anything of the kind; but, on the contrary, to ignore all rights to or interest in its land, except such as might be acquired by means of its own pre-emption laws, or other similar acts expressly conferring or confirming them: in other words, to keep the public land in such condition as that it can give to its patentee an absolute and perfect title, free from all easements and incumbrances of all kinds; no purpose of the General Government is more perfectly manifest, from all the legislation of Congress and decisions of its Courts, than this. The diversion here complained of cannot, then, be said to be sanctioned by any policy of the United States. The Act of Congress of July, 1866, if it shows anything, shows that no diversion had previously been authorized; for, if it had, whence the necessity of passing that act, which appears simply to have been adopted to protect those who at that time were diverting water from its natural channel ? Doubtless all patents issued or titles acquired from the United States, since July, 1866, are obtained subject to the rights existing at that time ; but this is a different case—for if the appelW. C—18.

lant has any right to the water, he acquired it by the patent issued to him two years before that time, and with which, therefore, Congress could not interfere. But we do not understand it to be claimed that the act does directly affect this case, but that it is only referred to as exhibiting the policy of the General Government. The answer is, that the policy began with that act, was never in any way sanctioned or suggested prior to the time of its passage, and therefore has nothing to do with this case." 1

The Government, therefore, being the owner of the soil at the time of the diversion, and, as such owner, having an absolute right to the streams, and not having granted away any rights, of water to the plaintiff, nor authorized him to make the diversion complained of, it was held that the United States had a right of action against him for making the diversion ; that he did not acquire any right to make such diversion under the preemption laws, and that the right of action passed to the United States patentee, the defendant, who was alone entitled to complain, and not the plaintiff. 2

The case was carefully distinguished from that large class of cases where it had been held, in California and Nevada, that priority of appropriation gave a right to water, as between approprialors none of whom held the absolute title to the soil. That rule was in nowise disputed in Vansickle v. Haines. The case presented the different phase of one involving the question of title to water as an incident to the soil, where the owner had the same right that the Government of the United States would have had, as against any person diverting it from its land. A United States patent conveys a new title, and the time during which a person diverts water from the public land previous to the issuance of the patent, cannot be set up as an adverse user as against the patentee. 3

1 Vansickle o. Haines, 7 Nevada, 279.

"See, also, Cook v. Foster, 2 Gilman, 652; Wilcoxon v. McGhee, 12 M. 381; Colvin o. Burnett, 2 Hill, 020.

8 Vansickle v. Haines, 7 Nev. 249; Irwin v. Phillips, 5 Cal.; Crandall v. Wood, 8 Cal. 141; Lobdell v. Simpson, 2 Nev. 274; Ophir S. M. Co. v. Carpenter, 4 Nev. D34; Covington v. Becker, 5 Nev. 281; Procter v. Jennings, 6 Nev. 83.

§ 209. Recognition of doctrine of prior appropriation— Reasonable use.—In Atchison v. Peterson, 1 the plaintiffs filed a bill for an injunction to restrain the defendants from carrying on certain mining operations on a creek in Montana Territory. The bill alleged that the water diverted by the complainants from the stream for mining purposes was deteriorated in quality and value. The complainants were the owners of two ditches or canals, known respectively as the Helena Water Ditch and the Yaw Yaw Ditch, by which the creek was tapped and the water diverted and conveyed a distance of about eighteen miles, to certain mining districts, and there sold to miners. The complainants' predecessors in interest asserted a claim to the waters of the creek in November, 1864, and during that year commenced the construction of the ditches, and continued work thereon until August, 1866. The work was then suspended for want of means until the following year, when it was resumed, and in 1867 the ditches were completed and put into operation, at a cost of $117,000.

During the progress of this work, and in 1865, there was some mining on the creek above the point of junction with the ditches, but no continued mining until 1867. From that period the defendants worked mining ground about fifteen miles above the point of junction, washing down earth and " tailings " into the creek, and filling the water with mud, sand, and sediment, impairing its value at that point for further mining. It appeared that, the volume of water in the creek, which at the point where defendants worked their mining claims was only about 200 inches, according to the measurement of miners, was increased at the point where the ditches of the complainants tapped the creek, by intervening tributary streams of clear water, to about 1,500 inches. Of this water the Helena Ditch diverted about 500 inches, and took it about eighteen miles to the places where it was sold to miners. The water as it entered the ditch was somewhat muddied and affected with sand, but it appeared that the injury in quality from this cause was so slight as not in any material extent to impair the value of the water for mining, nor render it less salable to the miners at the places where it was carried.

i 20 Wall. TJ. S. 507, affirming S. C. 1 Mont. 561.

With respect to the water diverted by the Yaw Yaw Ditch, it was shown that its deterioration, so far as the deterioration exceeded that of the water in the Helena Ditch, was caused by sand and sediment brought by a tributary which entered the creek below the head of the Helena Ditch.

The mining claims of the defendants were shown to be worth from $15,000 to $20,000 each, and it appeared that the defendants were responsible and capable of responding in damages. The injunction was denied in the Territorial Courts, and the Supreme Court of the United States affirmed the decree.

In view of the foregoing facts, the Supreme Court of the United States considered that the deterioration in quality was very slight, and did not render the water to any appreciable extent less useful or salable for mining purposes at the localities to which it was conveyed, and that no additional labor was required on the ditch on account of the muddied condition of the water. A sand-gate at the head of the ditch was necessary in any event, whether there was mining above the stream or not; and the accumulation of sand from all sources, from the hill-sides as well as from the mining of the defendants, only required the additional labor of one person for a few minutes each day. The injury thus sustained was considered hardly appreciable, in comparison with the damage which would result to the defendants from the indefinite suspension of work on their valuable mining claims.- The remedy by injunction was therefore refused, and the parties left to their actions at law.

In commenting upon the doctrine of prior appropriation, and its recognition by Congress, Mr. Justice Field, delivering the opinion of the Court, said :

" By the custom which has obtained among miners in the Pacific States and Territories, where mining for the precious metals is had on the public lands of the United States, the first appropriator of mines, whether in placers, veins, or lodes, or of waters in the streams, on such lands for mining purposes, is held to have a better right than others to work the mines or use the waters. The first appropriator who subjects the property to use, or takes the necessary steps for that purpose, is regarded, except as against the Government, as the source of title in all controversies relating to the property. As respects the use of water for mining purposes, the doctrines of the common law, declaratory of the rights of riparian owners, were, at an early day after the discovery of gold, found to be inapplicable, or applicable only in a very limited extent, to the necessities of miners, and inadequate to their protection. By the common law, the riparian owner, on a stream not navigable, takes the land to the center of the stream, and such owner has the right to the use of the water flowing over the land as an incident to his estate. And, as all such owners on the same stream have an equality of right to the use of the water as it naturally flows in quality, and without diminution in quantity, except so far as such diminution may be created by a reasonable use of the water for certain domestic, agricultural, or manufacturing purposes, there could not be, according to that law, any such diversion or use of the water by one owner as would work material detriment to any other owner below him. 1 Nor could the water by one owner be so retarded in its flow as to be thrown back to the injury of another owner above him. ' It is wholly immaterial,' says Mr. Justice Story, in Tyler v. Wilkinson, 1 k whether the party be a proprietor above or below in the course of the river: the right being common to all the proprietors on the river, no one has a right to diminish the quantity which will, according to the natural current, flow to the proprietor below, or to throw it back upon a proprietor above. This is a necessary result of the perfect equality of right among all the proprietors of that which is common to all.' ' Every proprietor of lands on the banks of a river,' says Kent, ' has naturally an equal right to the use of the water which flows in the stream, adjacent to his lands, as it was wont to run (currere solebat) without diminution or alteration. No proprietor has a right to use the water to the prejudice of other proprietors above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere ut currere solebat. Though he may use the water while it runs over his land, as an incident to the land, he cannot unreasonably detain it or give it

14 Mason, 370.

another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of the water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above, without a grant or an uninterrupted enjoyment of twenty years, which is evidence of it. This is the clear and settled doctrine on the subject, and all the difficulty which arises consists in the application.' 1

" This equality of right among all the proprietors on the same stream would have been incompatible with any extended diversion of the water by one proprietor, and its conveyance for mining purposes to points from which it could not be restored to the stream. But the Government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the commonlaw doctrine of riparian proprietorship with respect to the waters of those streams.

" The Government, by its silent acquiescence, assented to the general occupation of the public lands for mining ; and, to encourage their free and unlimited usclfor that purpose, reserved such lands as were mineral from sale and the acquisition of title by settlement. And he who first connects his own labor with property thus situated and open to general exploration, does, in natural justice, acquire a better right to its use and enjoyment than others who have not given such labor. So the miners on the public lands throughout the Pacific States and Territories, by their customs, usages, and regulations, everywhere recognize the inherent justice of this principle; and the principle itself was at an early period recognized by legislation, and enforced by the Courts in those States and Territories. In Irwin v. Phillips, 2 a case decided by the Supreme Court of California, in January, 1855, this subject was considered. After stating that a system of rules had been permitted to grow up with respect to mining on the public lands by voluntary action and assent of the population, whose free and unrestrained occupation of the mineral region had been tacitly assented to by the Federal Govern

1 3 Kent's Commentaries, »439. a 5 Cal. 140.

ment, and heartily encouraged by the expressed legislative policy of the State, the Court said: ' If there are, as must be admitted, many things connected with this system which are crude and undigested, and subject to fluctuation and dispute, there are still some which a universal sense of necessity and propriety have so firmly fixed as that they have come to be looked upon as having the force and effect of res adjudicata. Among these the most important are the rights of miners to be protected in their selected localities, and the rights of those who, by prior appropriation, have taken the waters from their natural beds, and by costly artificial works have conducted them for miles over mountains and ravines to supply the necessities of gold diggers, and without which the most important interests of the mineral region would remain without development. So fully recognized have become these rights, that without any specific legislation conferring or confirming them, they are alluded to and spoken of in various acts of the legislature in the same manner as if they were rights which had been vested by the most distinct expression of the will of the law-makers.'

" This doctrine of right by prior appropriation was recognized by the legislation of Congress, in 1866." 1

The limitation of the doctrine of prior appropriation and the restrictions as to reasonable use, were touched upon as follows:

"The right to water by prior appropriation, thus recognized and established as the law of miners on the mineral lands of the public domain, is limited in every case, in quantity and quality, by the uses for which the appropriation is made. A different use of the water subsequently does not affect the right; that is subject to the same limitations, whatever the use. The appropriation does not confer such an absolute right to the body of the water diverted, that the owner can allow it, after its diversion, to run to waste, and prevent others from using it for mining or other legitimate purposes; nor does it confer such a right that he can insist upon the flow of the water without deterioration in quality, where such deterioration does not defeat nor impair the uses to which the water is applied.

" Such was the purport of the ruling of the Supreme Court

i Atchison v. Peterson, 20 Wall. U. S. 510.

of California, in Butte Canal and Ditch Company r. Vaughn, 1 where it was held that the first appropriator had only the right to insist that the water should be subject to his use and enjoyment to the extent of his original appropriation, and that its quality should not be impaired so as to defeat the purpose of that appropriation. To this extent, said the Court, his rights go, and no further; and that in subordination to them, subsequent appropriators may use the channel and waters of the stream, and mingle with its waters other waters, and divert them as often as they choose ; that whilst enjoying his original rights, the first appropriator had no cause of complaint. In the subsequent case of Ortman v. Dixon, 2 the same Court held, to the same purport, that the measure of the right of the first appropriator of the water as to extent follows the nature of the appropriation or the uses for which it is taken.

" What diminution of quantity or deterioration in quality will constitute an invasion of the rights of the first appropriator will depend upon the special circumstances of each case, considered with reference to the uses to which the water is applied. A slight deterioration in quality might render the water unfit for drink or domestic purposes, whilst it would not sensibly impair its value for mining or irrigation. In all controversies, therefore, between him and parties subsequently claiming the water, the question for determination is necessarily whether his use and enjoyment of the water to the extent of his original appropriation have been impaired by the acts of the defendant. 3

But whether, upon a petition or bill asserting that his prior rights have been thus invaded, a Court of Equity will interfere to restrain the acts of the party complained of, will depend upon the character and extent of the injury alleged, whether it be irremediable in its nature, whether an action at law would afford adequate remedy, whether the parties are able to respond for the damages resulting from the injury, and other considerations which ordinarily govern a Court of Equity in the exercise of its preventive process of injunction." 4

1 11 Cal. 143.

2 13 Cal. 33. See, also, Lobdell v. Simpson, 2 Nev. 274.

8 See, to the samo effect, Hill v. Smith, 27 Cal. 483; Yale's Mining Claims, 194. * Atchison v. Peterson, 20 Wall. U. S. 514.

[ocr errors]

§ 210. Effect of the statute upon prior appropriation without Government title.—This phase of the subject has been considered in a late case in the Supreme Court of the United States. A review of that case will constitute the most authoritative exposition of the law of the subject. The question on the merits in the case was, whether a right to running waters on the public land of the United States, for the purposes of irrigation, can be acquired by prior appropriation, as against parties not having the title of the Government. The Court said: " Neither party has any title from the United States; no question as to the rights of the riparian proprietors can, therefore, arise. It will be time enough to consider those rights when either of the parties has obtained the patent of the Government. At present, both parties stand upon the same footing: neither can allege that the other is a trespasser against the Government without at the same time invalidating his own claim.

" In the late case of Atchison v. Peterson, 1 we had occasion to consider the respective rights of miners to running waters on mineral lands of the public domain ; and we there held, that by the custom which had obtained among miners in the Pacific States and Territories, the party who first subjected the water to use, or took the necessary steps for that purpose, was regarded, except as against the Government, as the source of title in all controversies respecting it; that the doctrines of the common law declaratory of the rights of riparian proprietors were inapplicable, or applicable only to a limited extent, to the necessities of miners, and were inadequate to their protection; that the equality of right recognized by that law among all the proprietors upon the same stream, would have been incompatible with any extended diversion of the water by one proprietor, and its conveyance for mining purposes to points from which it could not be restored to the stream; that the Government by its silent acquiescence had assented to, and encouraged, the occupation of the public lands for mining, and that he who first connected his labor with property thus situated and open to general exploration, did in natural justice acquire a better right to its use and enjoyment than others who had not given such labor; that the miners on the public lands throughout the Pacific States and Territories, by their customs, usages, and regulations, had recognized the inherent justice of this principle, and the principle itself was, at an early period, recognized by legislation, and enforced by the Courts in those States and Territories, and was finally approved by the legislation of Congress in 1866. The views there expressed, and the rulings made, are equally applicable to the use of water on the public lands for purposes of irrigation. No distinction is made in those States and Territories, by the customs of miners or settlers, or by the Courts, in the rights of the first appropriator from the use made of the water, if the use be a beneficial one."

" In the case of Tartar v. The Spring Creek Water and Mining Company, decided in 1855, the Supreme Court of Califor nia said: ' The current of decisions of this Court goes to establish that the policy of this State, as derived from her legislation, is to permit settlers in all capacities to occupy the public lands, and by such occupation to acquire the right of undisturbed enjoyment against all the world but the true owner. In evidence of this, acts have been passed to protect the possession of agricultural lands acquired by mere occupancy; to license miners; to provide for the recovery of mining claims; recognizing canals and ditches which were known to divert the water of streams from their natural channels for mining purposes; and others of like character. This policy has been extended equally to all pursuits, and no partiality for one over another has been evinced, except in the single case where the rights of the agriculturist are made to yield to those of the miner where gold is discovered in his land. The policy of the exception is obvious. Without it the entire gold region might have been inclosed in large tracts, under the pretense of agriculture and grazing, and eventually what would have sufficed as a rich bounty to many thousands would be reduced to the proprietorship of a few. Aside from this, the legislation and decisions have been uniform in awarding the right of peaceable enjoyment to the first occupant, either of the land or of anything incident to the land.' 1

i 8 Cal. 397.

[ocr errors]

" Ever since that decision, it has been held, generally throughout the Pacific States and Territories, that the right to water by prior appropriation for any beneficial purpose is entitled to protection. Water is diverted to propel machinery in flour-mills and saw-mills, and to irrigate land for cultivation, as well as to enable miners to work their mining claims; and in all such cases the right of the first appropriator, exercised within reasonable limits, is respected and enforced. We say within reasonable limits, for this right to water, like the right by prior occupancy to mining ground or agricultural land, is not unrestricted. It must be exercised with reference to the general condition of the country and the necessities of the people, and not so as to deprive a whole neighborhood or community of its use, and vest an absolute monopoly in a single individual. The Act of Congress of 1866 recognizes the right to water by prior appropriation for agricultural and manufacturing purposes, as well as for mining." 1

"It is very evident that Congress intended, although the language used is not happy, to recognize as valid the customary law with respect to the use of water, which had grown up among the occupants of the public land under the peculiar necessities of their condition; and that law may be shown by evidence of the local customs, or by the legislation of the State or Territory, or the decision of the Courts. The union of the three conditions in any particular case is not essential to the perfection of the right by priority ; and in case of conflict between a local custom and a statutory regulation, the latter, as of superior authority, must necessarily control." 2

Several decisions of the Supreme Court of Montana have been cited to us, recognizing the right by prior appropriation to water for purposes of mining on the public lands of the United States; and there is no solid reason for upholding the right when the water is thus used, which does not apply with the same force when the water is sought on those lands for any other equally beneficial purpose. In Thorp v. Freed, 8 the

iBasey v. Gallagher, 20 Wall. TJ. S. 681; S. C. 1 Montana, 457; Woolman v. Garringer, 1 Montana, 53S. 'Ibid. 083; Ibid. < 1 Montana, 6S2,66S.

subject was very ably discussed by two of the justices of that Court, who differed in opinion upon the question in that case, where both parties had acquired the title of the Government. The disagreement would seem to have arisen in the application of the doctrine to a case where title had passed from the Government, and not in its application to a case where neither party had acquired that title. In the course of his opinion, Mr. Justice Knowles stated that ever since the settlement of the Territory it had been the custom of those who had settled themselves upon the public domain and devoted any part thereof to the purposes of agriculture, to dig ditches and turn out the water of some stream to irrigate the same ; that this right had been generally recognized by the people of the Territory, and had been universally conceded as a necessity of agricultural jmrsuits. " So universal," added the justice, " has been this usage, that I do not suppose there has been a parcel of land to the extent of one acre, cultivated within the bounds of this Territory, that has not been irrigated by water diverted from some mining stream.

" We are satisfied that the right claimed by the plaintiffs is one which, under the customs, laws, and decisions of the Courts of the Territory, and the act of Congress, should be recognized and protected." 1

In the case of Basey v. Gallagher, it was, as we have seen, decided, that a right to running waters on the public lands of the United States, for purposes of irrigation, could be acquired by prior appropriation, as against parties not having the title of the Government. 2

This doctrine was followed in Barnes v. Sabron, 10 Nevada, 230, which was an action to recover damages for the diversion of water. It was there held that the first appropriator of the water of a stream running through the public lands has the right to insist that the water flowing therein shall, during the irrigating season, be subject to his reasonable use and enjoyment, to the full extent of his original appropriation and beneficial use. But his rights go no further; for in subordination to such rights

i Basey v. Gallagher, 20 Wall. G85; S. C. 1 Montana, 457; Woolman v. Garringer, 1 Montana, 535. a 20 Wall. U. S. S. C. 1 Montana.

subsequent appropriators may take the balance of the water remaining in the stream. The first appropriator is only entitled to as much water as is necessary to irrigate his land, and is bound to make a reasonable use of it, and what is a reasonable use depends upon the circumstances of each case. The Court said : " The doctrine that the fir&t appropriator has the superior right, ' where the right to the use of running water is based upon appropriation, and not upon ownership in the soil,' has been recognized and acknowledged by the decisions of this Court in Lobdell v. Simpson, 2 Nev. 274, and the Ophir S. M. Co. v. Carpenter et al., 4 Nev. 534.

" The facts of this case do not call in question the correctness of the decision in Vansickle v. Haines, 7 Nev. 249, where the title to the land had been obtained from the Government prior to the acts of Congress herein referred to.

" It logically follows, from the legal principles we have announced, that the plaintiff, as the first appropriator of the waters of Currant Creek, has the right to insist that the water flowing therein shall, during the irrigating season, be subject to his reasonable use and enjoyment to the full extent of his original appropriation and beneficial use. To this extent his rights go, but no further; for, in subordination to such rights, the defendants, in the order and to the extent of their original appropriation and use, had the unquestionable right to appropriate the remainder of the water running in said stream. (The Butte Canal and Ditch Co. v. Vaughn, 11 Cal. 143; The Nevada Water Co. v. Powell et al., 34 Cal. 109.)

" In 1870, Congress amended the Act of 1866, and provided: ' That none of the rights conferred by sections five, eight, and nine of the act to which this act is amendatory shall be abrogated by this act, and the same are hereby extended to all public lands affected by this act; and all patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs, used in connection with such water rights, as may have been acquired under or recognized by the ninth section of the act of which this act is amendatory.' (16 U. S. Stats. 218, Sec. 17.) The certificate of plaintiff from the State and the patent of Sabron must, under the provisions of this law, be held subject to such vested and accrued water rights as were acquired by the respective parties under the ninth section of the Act of 1866." 1

" If plaintiff did not require the full amount of his appropriation, he could not hold the defendants responsible in damages for not turning it down to him; he was only entitled to as much water—within his original appropriation—as was necessary to irrigate his land, and was bound, under the law, to make a reasonable use of it. In a dry and arid country, like Nevada, where the rains are insufficient to moisten the earth, and irrigation becomes necessary for the successful raising of crops, the rights of prior appropriators must be confined to a reasonable and necessary use. The agricultural resources of the State cannot be developed, and our valley lands cannot be cultivated without the use of water from the streams to cause the earth to bring forth its precious fruits. No person can, by virtue of a prior appropriation, claim or hold any more water than is necessary for the purpose of the appropriation. Reason is the life of the law, and it would be unreasonable and unjust for any person to appropriate all the waters of a creek when it was not necessary to use the same for the purposes of his appropriation. The law, which recognizes the vested rights of prior appropriators, has always confined such rights within reasonable limits. ' We say within reasonable limits,' with the Court in Bascy v. Gallagher, ' for this right to water, like the right by prior occupancy to mining ground, * * * is not unrestricted. It must be exercised with reference to the general condition of the country and the necessities of the people, and not so as to deprive a whole neighborhood or community of its use, and vest an absolute monopoly in a single individual.' What is a reasonable use depends upon the peculiar circumstances of each particular case." 2

§ 211. Construction of flumes over public lands.—In a

case in Nevada, a plaintiff in constructing a flume found it necessary to carry it over certain public land in the possession of the defendant. He proceeded under the State law to condemn the right of way, and had appraisers appointed who valued it

1 Barnes o. Sabron 10 Nevada, 233.

a Ibid. 243; Baaey v. Gallagher, 20 Wall. 685; 1 Montana, 457.

120 Wall. U. S. 507.

He tendered the sum to the defendant, who refused to accept. After such tender he attempted to carry forward his work, but was prevented by defendant. The plaintiff therefore prayed for an injunction restraining the defendant from further interfering with the work. The inferior Court, after hearing the testimony, ordered a preliminary injunction to issue, and defendant took an appeal from the order to the Supreme Court of the State. In commenting upon Sec. 9 of the Act of 1866, (Rev. Stats. 2339) the Court said: " In its adoption there appear to have been three distinct objects in view: 1st. The confirmation of all existing water rights; 2d. To grant the right of way over the public land to persons desiring to construct flumes or canals for mining or manufacturing purposes; and 3d. To authorize the recovery of damage by settlers on such land against persons constructing such ditches or canals, for injuries occasioned thereby. That this section grants the right of way over the public land to all who may desire to construct ditches or canals for mining or agricultural purposes, is about as clear and certain as the objects and purposes of the acts of Congress usually are."

Under the act, it was considered that nothing is necessary to be shown except that the construction of a canal or ditch is desired for some mining or agricultural purpose, and that the land over which it is to be constructed is public. The land being public, it was held that Congress had a perfect right to grant the right of way over it, for the purpose of constructing flumes and for other purposes, and the injunction was allowed to stand. 1

§ 212. Rights of ditch-owners on public lands.—In a

California case the defendant, in 1853 and 1854, had constructed a ditch to convey water for mining purposes in the gold regions of California. The ditch was about thirty miles in length, and of a capacity to carry 14,000 inches of water, and was excavated to carry water for sale to miners and others, and passed over public lands of the United States, which were surveyed prior to 1865. The plaintiff derived title to a portion of the land through which the ditch passed, by a patent from the United States, dated November 1st, 1867, having filed his declaratory statement

i Hobart v. Ford, 6 Nev. 77.

as a pre-emptor on August 18th, 1866. He derived title to another portion of the land by deed from a United States patentee, the patent being dated December 1st, 1868; and to still another portion by deed from the Central Pacific Railroad Company, who received the land by grant from the United States on the 27th of June, 1867, under the Acts of Congress of 1862 and 1864, granting lands in aid of a railroad and telegraph line. The lands were cultivated by the plaintiff, and he commenced an action on the 19th of October, 1871, to abate the ditch as a nuisance.

The defendant, therefore, showed that prior to the Act of Congress of July 26th, 1866, it had acquired a right to the use of the water which was " recognized and acknowledged by the local customs, laws, and decisions of Courts." " That act," said the Court, " operated a grant to it of the right of way, and of the ditch through which the water was running at the date of the passage of the act. The subsequent grantees of the United States of tracts through which the ditch ran, took subject to defendant's easement." The patents of the plaintiff, a'hd his grantors, were issued after the date of the act. But it was claimed that the railroad company, one of plaintiff's grantors, had a perfect equity at and before the date of the Act of July 26th, 1866, because it had completed "forty consecutive miles " of the railroad, and the land was within that division. The Act of 1862 (Section 4) provides, " that (on completion of forty miles, etc.,) the President shall appoint three commissioners to examine the same, and report to him in relation thereto; that if it shall appear to him that forty consecutive miles of said railroad and telegraph line have been completed and equipped in all respects as required by this act, then, upon certificate of said commissioners to that effect, patents shall issue ; and patents shall, in like manner, issue as each forty miles of said railroad and telegraph line are completed, upon certificate of said commissioners." The Court said: " The law places in the President or board of commissioners, or both, the power of determining whether the railroad company has performed the conditions pre-requisite to the issuing of the patents. It is manifest that, until the commissioners made their certificate, the company had no vested equity which can be recognized by the State Courts. There is no finding that such certificate was made prior to the passage of the Act of July 26th, 1866."

What the effect of such a finding would have been was not decided. 1

§ 213. The Sutro Tunnel Act—Provisions not to affect existing rights.—Section 2344 of the Revised Statutes reads : " Nothing contained in this chapter shall be construed to impair, in any way, rights or interests in mining property acquired under existing laws ; nor to affect the provisions of the act entitled 'An Act granting to A. Sutro the right of way and other privileges to aid in the construction of a draining and exploring tunnel to the Comstock Lode, in the State of Nevada,' approved July 25th, 1866." 2

1 Broder v. Natoma Water and Mining Company, 00 Cal. 021. See, generally, as to water rights, doctrine of prior appropriation: Blanchard & Weeks' Leading Cases on Mines, Minerals, and Mining Water Rights, 720-757, and numerous cases there cited; Woolman v. Garringer, 1 Montana, 535; Columbia M. Co. v. Holter, Ibid. 2U6. Diversion of water: Harris v. Shoutz, Ibid. 212; Right of way for ditches, Xoteware v. Sterns, Ibid. 311.

a Rev. Stats. 2344. See Sec. 2340, Ibid. See Sec. 17 of the Act of 1870, 10 U. S. Stats. 218. Sec. 8 of the Act of 1866, 14 U. S. Stats. 253, read: "sec. 8. That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." The last clause of Sec. 16 of the Act of 1872, 17 U. S. Stats. 96, read: "Provided, That nothing contained in this act shall be construed to impair, in any way, rights or interests in mining property acquired under existing laws."

Following is the text of the so-called Sutro Tunnel Act, approved July 25th, 1806 (14 U. S. Stats. 242):

" An Act granting to A. Sutro the right of way, and granting other privileges to aid in the construction of a draining and exploring tunnel to the Comstock Lode, in the State of Nevada. [Approved July 25th, 1806.]

"Be it enacted by the Senate and House of Representatives of the United States oj America, in Congress assembled, That, for the purpose of the construction of a deep draining and exploring tunnel to and beyond the ' Comstock Lode,' socalled, in the State of Nevada, the right of way is hereby granted to A. Sutro, his heirs and assigns, to run, construct, and excavate a mining, draining, and exploring tunnel; also, to sink mining, working, or air shafts along the line or course of said tunnel, and connecting with the same at any point which may hereafter be selected by the grantee herein, his heirs or assigns. The said tunnel shall be at least eight feet high and eight feet wide, and shall commence at some point to be selected by the grantee herein, his heirs or assigns, at the hills near Carson River, and within the boundaries of Lyon County, and extending from said initial point in a westerly direction seven miles, more or less, to and beyond said Comstock Lode; and the same right of way shall extend northerly and southerly on the course of said lode, either within the same, or east or west of the same; and also on or along any other lode which may be discovered or developed by the said tunnel.

W. C—19.

§ 214. Conditions inserted in patents for mines on Comstock Lode, Nevada.—In issuing patents for the Cornstock Lode, Nevada, the following clause has been inserted:

" That the claim hereby granted and conveyed shall be subject to the condition specified in the third section of the Act of Congress, approved July 25th, 1866, ' granting the right of way and other privileges to aid in the construction of a draining and exploring tunnel to the Comstock Lode, in the State of Nevada,'. and the grantee herein shall contribute and pay to the owners of the tunnel, constructed pursuant to said act, for drainage or other benefits derived from said tunnel or its branches, the same rate of charges as have been or may hereafter be named in agreement between such owners and the companies representing a majority of the estimated value of said Comstock Lode,

"sec. 2. And be it further enacted, That the right is hereby granted to the said A. Sutro, his heirs and assigns, to purchase, at one dollar and twenty-five cents per acre, a sufficient amount of public land near the mouth of said tunnel for the use of the same, not exceeding two sections, and such land shall not be mineral land or in the bona fide possession of other persons who claim under any law of Congress at the time of the passage of this act, and all minerals existing or which shall be discovered therein are excepted from this grant; that upon liling a plat of said land, the Secretary of the Interior shall withdraw the same from sale, and upon payment for the same a patent shall issue. And the said A. Sutro, his heirs and assigns, are hereby granted the right to purchase, at five dollars per acre, such mineral veins and lodes within two thousand feet on each side of said tunnel, as shall be cut, discovered, ordeveloped by running and constructing the same, through its entire extent, with all the dips, spurs, and angles of such lodes, subject, however, to the provisions of this act, and to such legislation as Congress may hereafter provide: Provided, That the Comstock Lode, with its dips, spurs, and angles, is excepted from this grant, and all other lodes, with their dips, spurs, and angles, located within the said two thousand feet, and which are or may be, at the passage of this act, in the actual bona fide possession of other persons, are hereby excepted from such grant. And the lodes herein excepted, other than the Comstock Lode, shall be withheld from sale by the United States; and if such lodes shall be abandoned or not worked, possessed, and held in conformity to existing mining rules, or such regulations as have been or may be prescribed by the Legislature of Nevada, they shall l,ecome subject to such right of purchase by the grantee herein, his heirs or assigns.

" Sec. 3. And be it further enacted, That all persons, companies, or corporations owning claims or mines on said Comstock Lode or any other lode drained, benefited, or developed by said tunnel, shall hold their claims subject to the condition, (which shall be expressed in any grant they may hereafter obtain from the United States,) that they shall contribute and pay to the owners of said tunnel the same rate of charges for drainage or other benefits derived from said tunnel or its branches, as have been, or may hereafter be, named in agreement between such owners and the companies representing a majority of the estimated value of said Comstock Lode at the time of the passage of this act."

at the time of the passage of said act, as provided in said third section."

Both the Acts of 1870 and 1872 contained clauses guarding the rights of the owners of the Sutro Tunnel, and the land embraced by the location of the tunnel was withdrawn from sale. 1

In May, 1876, protests were filed in the General Land Office, by the Sutro Tunnel Company, against the issuance of any patents for mining claims in certain townships, unless the condition referred to in the third section of the Act of July 25th, 1866, should be inserted therein. The company claimed that under that act, commonly known as the Sutro Tunnel Act, no patents should be issued for mining claims in the townships except to parties holding claims on the Comstock Lode, and to them only subject to that condition. 2 It was demanded:

" 1st. That the patents on the Comstock Lode for its whole length be only granted with the restriction made in Sec. 3 of the above act.

"2d. That the mines located in T. 16 and 17 N., 7 E. 21 E., are all within a reasonable distance from the tunnel—probably on lodes cut by the same; and may easily be reached by its branches, and therefore should be withheld from sale."

On the 20th January a decision in the case was made by the Land Office, and on the 1st of February, 1869, Mr. Sutro filed another argument, and requested a re-examination of the matter. In this argument he stated that " all the mines contained in T. 16 and 17 N., R. 21 E., Mount Diablo Meridian, may conveniently be reached by branches from said main tunnel, or may otherwise be benefited by the same: it will be necessary, therefore, that the above clause be inserted in all patents issued for mines situated in the above named townships." He then summed up his claim as follows, viz : " I claim under the law of July 25th, 1866, as follows: " 1st. All mines embraced within 2,000 feet on each side of said tunnel for seven miles in length, as indicated by blue shading on the map filed with the Commissioner of the General Land Office on the 30th day of July, 1866, excepting the Comstock Lode, are to be withheld from sale by the United States.

1 Decision Commissioner, March 8th, 1873, Copp's VS. S. Mining Decisions, 162. - In re Sutro Tunnel Company, Decision Acting Commissioner, May 27th, 1876, 3 Copp's Land-owner, 34.

The officers of the Government are the agents of the law. They cannot act beyond its provisions, nor make compromises

1 Decision Commissioner, Dec. 10th, 1809, Copp's U. S. Mining Decisions, '2l,. - Decision of Assistant Secretary Interior, April 19th, 1872, Copp's U. S. Mining Decisions, 88.

3 Lindsay i'. Howes, 2 Black. U. S. 557; Cunningham v. Ashley, 14 How. 377.

§ 2319. Mineral lands open to purchase by citizens.—

All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase by citizens of the United States, and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.

Sec. 1 of the Act of 1872. 17 U. S. Stat. 91, was identical with the above.

Sec. 1 of the Statute of July 26th, 1860, read as follows: Sec. 1. That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be preecribed bylaw, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States. [14 U. S. Stat. 231.]

§ 2473. Penalty for prosecuting fraudulent suits, etc., in California. —Every person who, for the purpose of setting up or establishing any claim against the United States to lands, mines, or minerals within the State of California, presents, or causes or procures to be presented, before any Court, judge, com mission, or commissioner, or other officer of the United States, any false, forged, altered, or counterfeited petition, certificate, order, report, decree, concession, denouncement, deed, patent, diseiio, map, expediente or part of an expediente, title-paper, or written evidence of right, title, or claim to lands, minerals, or mines in the State of California, knowing the same to be false, forged, altered, or counterfeited, or any falsely dated petition, certificate, order, report, decree, concession, denouncement, deed, patent, confirmation, diseiio, map, expediente or part of an expediente, title-paper, or written evidence of right, title, or claim to lands, mines, or minerals in California, knowing the same to be falsely dated; and every person who prosecutes in any Court of the United States, by appeal or otherwise, any claim against the United States for lands, mines, or minerals in California, which claim is founded upon, or evidenced by, any petition, certificate, order, report, decree, concession, denouncement, deed, patent, confirmation, diseiio, map, expediente or part of an expediente, title-paper, or written evidence of right, title, or claim, which has been forged, altered, counterfeited, or falsely dated, knowing the same to be forged, altered, counterfeited, or falsely dated, shall be punishable as prescribed in section twentyfour hundred and seventy-one. Sec. 3, Act of May 18th, 1858, 11 U. S. Stat. 291

§ 5596. Repealing certain acts passed prior to December 1st, 1873.

All acts of Congress passed prior to said first day of December, one thousand eight hundred and seventy-three, any portion of which is embraced in any section of said revision, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof; all parts of such acts not contained in such revision, having been repealed or superseded by subsequent acts, or not being general or permanent in their nature: Provided, That the incorporation into said revision of any general and permanent provision, taken from an act making appropriations, or from an act containing other provisions of a private, local, or temporary character, shall not repeal, or in any way affect any appropriation, or any provision of a private, local, or temporary character, contained in any of said acts; but the same shall remain in force; and all acts of Congress passed prior to said last named day, no part of which are embraced in said revision, shall not be affected or changed by its enactment.

Approved June 22d, 1874.

Instructions of the Land Department,

FEBRUARY 1st, 1877.

LOST CONFIDENCE MINE.

This property, better known as the Iron Mountain Mine, is situated in the Flat Creek Mining District, seven and one half miles north from the town of Shasta. The location was made April 8, 1880. The claim is one thousand five hundred feet by six hundred feet. Course of vein, northeast and southwest; dip, 45 degrees to the east; average width, one hundred and thirty feet. The ore shoot is continuous the entire length of the claim, and can be traced as far as the Windy Camp District, a distance of eight miles—the same character of ore showing in explorations made in the latter camp.

Developments on the mine consist of a tunnel two hundred feet in length, and one thousand feet of drifts. The vertical depth reached from surface is two hundred feet. The formation of both hanging and foot-wall is porphyry. The ore carries 25 per cent of sulphurets, valued at forty ounces in silver and $1 in gold per ton.

The method of working is amalgamation. The estimated cost of treating ore per ton is $17 when roasted, and $10 worked raw. Percentage of silver saved is 96 when roasted and 80 when raw. Only fifty feet of timbering has been done in the mine. The cost of timber is $20 per thousand. The company has built ten miles of wagon road. The ore is transported to the work, by means of a tramway, at a cost of 10 cents per ton. The method of treating ore is roasting and amalgamating. The mill is a frame structure, containing twenty stamps and sixteen combination pans.

Altitude 3,200 feetLength of ore shoot - 1,500 feet.

Vertical depth reached in mine 200 feet.

Character of hanging-wall ..Porphyry.

Character of foot-wall _ Porphyry.

Kind of powderused - .Hercules.

Quantity of powder used. .' 160 pounds per month.

Cost of mining 25 cents per ton.

Cost of tunnel. $2 per foot.

Number of feet timbered 50

Kind of timber - - -...Pine.

Cost of timber _ $20 per thousand feet.

Length of road built 10 miles.

Cost of transport, of ore 10 cents per ton.

Number of stamps 20

Weight of stamp _ 950 pounds.

Drop of stamps 7 inches.

Drops . 90 per minute.

Duty of stamp 2 tons in twenty-four hours.

Kind of shoes and dies Steel.

Size and character of screens No. 40, round-punched.

Kind of pans Combination.

Number of pans - 16

Percentage of sulphurets - - -- 25

Value of sulphurets 40 ounces silver and $1 gold per ton.

Cost per ton of working sulphurets Raw, $10; Roasted, $17.

Kind of roasting furnace Bruckner.

Number of roasting furnaces 1

Per cent of salt used in roasting.. 5

Wood consumed in roasting \ cord per ton of ore.

Number of men in mill 10

Number of men in mine 20

Total number employed 30

Average wages in mine -- -. $2 per day, with board.

Average wages in mill $2 55 per day, with board.

Average wages paid outside work $1 50 per day, with board.

Wood used 12 cords per day.

Cost of wood __ $2 25 per cord.

U.S. MINT

The Lost Confidence mine is located on Iron Mountain, about 7 miles from Shasta, and has prod need some rich silver ore. The lower tunnel is in 320 feet, and is about I60 feet below the surface, and 90 feet above this another tunnel has been run a distance of 120 feet, most of the way through good paying ore. From the termination of this tunnel a shaft is being sunk on the ledge to strike the lower tunnel. The owners of this mine contemplate the erection of a 30-stamp mill at no distant day, there being ore enough in sight to justify them in the undertaking.

At the Mad Ox mine the tunnel is in about 300 feet, drifting on the lode 200 feet to the north and 100 feet to the south. The ledge in the tunnel is 3 feet wide at the north end and 14 inches on the south, and is about 2 feet wide in the raise. All the ore in the raise and at both ends is good pay ore, yielding from $18 to $25 per ton. So far they have not taken any ore from the stopes, which are very rich, but have been using all the ore they crush from the tunnel or main level.

At the Flat Creek mining camp, formerly noted for its placer mining, quartz developments are being made, and 30 men are at work in that vicinity. The veins are 2£ to 4 feet in width, and some of the quartz worked by the arrastra process has paid at the rate of $17 per ton. Several claims have been opened by tunnels or shafts, the deepest being down 140 feet, following the ledge, which at that depth is 6 feet in width from wall to wall, with quartz 2£ feet wide.

The Knox, a quartz mine on Spring Creek, has produced ore vhich assays well in gold and silver, but cannot be collected by the amalgamating process on account of base metals. Improved machinery and smelting works will be required for the profitable working of this mine.

DEPT. OF INTERIOR

Iron Mountain district. —This district adjoins Backbone Creek district ou the south, and lies 8 miles north from Shasta, and, like the adjoining district, the California and Oregon Railroad and Sacramento River run through it. The district is over 5 miles in length, and takes its name from a rugged mountain which lifts its head to au altitude of 7,000 feet above the level of the sea.

Across this mountain, and extending through the district is one of the most colossal and remarkable bodies of silver ore yet discovered in this part of the State, and it may also be remarked here that the immense ledge, that traverses Backbone district is generally supposed to be but a continuation of this vast silver dike. For 110 yards this ledge crops out naked above the surrounding formation to a height of from 30 to 50 feet.

The Lost Confidence mine, the original discovery claim, owned by Camden & Co., extends 1 mile along the ledge. Two tunnels have been run into this ore-body, but neither of them has gone through it. The upper tunnel is in 140 feet, and 75 feet below a second tunnel is in 300 feet and connected with the upper one by a shaft which descends all the way through a solid body of silver ore. No reduction works have been erected on the mine, but the company have built a wagon road to Shasta at an expense of $10,000, and are shipping ore to San Francisco which pays from $75 to $100 per ton, while some selected lots have yielded $4,000 per ton.

MOUNTAIN COPPER CO. 461

Officers: Wm. B. Davidson, pres.; A. L. Irish, v. p.; D. J. Hoge. sec.tieas.: with A. E. Rutherford and P. B. Ellis, directors; W. J. McCray. nigr.

Cap., $150.000; shares lOc par. The new company has paid for the mine partly in stock and given a first mortgage trust deed for $66,000.

Property: 200 acres patented and 300 acres unpatented land in sec. 35, T. 4 S., R. 16 E., 4}4, miles E of Hornitos. on the west vein of the Mother Lode, said to show gold ore.

Development: by 1,350' incline shaft with 11 levels and about 8,000' of workings. At present the mine is full of water, but old records are said to show a y vein assaying $7 per ton.

Equipment: includes electric hoist, air compressor and 20-stamp mill with amalgamation and concentration tables. Electric power is obtained from the San Joaquin Power & Light Co.

Mine has been idle from 1910, until new company came into possession on May 10. 1916. Reported to have added a 100-h. p. electric hoist and overhauled the mill, preparatory to starting operations. MOUNTAIN COPPER CO., LTD. CALIFORNIA

Secretary's address: 3 Lombard St., London, E. (_., England. Operating office: 332 Pine St., San Francisco, Calif. Mine office: Keswick, Shasta county, Calif. Works office: Martinez, Contra Costa county, Calif.

Directors: Major F. B. Lawson, chairman; Henry J. Wenham, J. T. Middleton, E. T. McCarthy and A. N. Frewer; Wm. F. Kelt, gen. mgr.; M. J. Murphy, mine supt.; T. B. Swift, smelter supt.; Jardine, Matheson & Co., Ltd., 25 Madison Ave., New York, American sales agents.

Inc. Dec. 1, 1896, in Great Britain, and reorganized May 10, 1902. Cap., ^250,000; shares i\ par. in 1899 the company changed its capitalization to £250,000 in shares and £1,000,000 in 6% in debenture stock; shares £4 par, on which a first payment of £1 per share was made Jan. 16, 1905, leaving £750,000 of stock outstanding. The change in 1899 was practically a complete amortization. A further refund of 10s per share was made in 1918, leaving the outstanding, as at Jan. 1, 1919, £625,000.

Dividends: before reconstruction, 1897-1901, aggregated 58}/2%. No more are to be paid until debentures are paid off.

Profits were £150,255 in 1907; £28,115 in 1908; £24,557 in 1909; a deficit of £3,042 in 1910; profit of £55,069 in 1911; £81,686 in 1912; £53,456 in 1913; £35,562 in 1914; £106,365 in 1915; £232,106 in 1916; £114,674 in 1917.

Property: is extensive, including the Iron Mountain and Hornet mines, 1O miles N. W 7 . of Redding. The Iron Mountain mine was opened, 1880, for silver, and had a 20-stamp mill, treating the gossan in a small way for some years after 1884.

The Iron Mountain mine had a gossan of 100' to 300' width, covering a lens of ore, 100 ; to 400' wide, 800' long and 500' deep, in a shear zone of meta-rhyolite. The ore carries chalcopyrite associated with pyrite, averaging about 5% copper, 2 oz. silver and slightly under $1 gold per ton. The orebody was worked pillar-and-stall, and slopes filled with waste, but pillars have been robbed and the mine now shows little high-grade suphide ore. The old orebody being pyrite, there was trouble from fires, but the application of the plenum system of ventilation, by Mr. Wright, restored normal conditions. Considerable cement copper was secured from the charged waters coming from the fire zone.

Ore reserves in No. 8 mine at end of 1918 were 300,000 tons.

The Hornet mine, lying to the north of the Iron Mountain, developed about 5,000.000 tons of pyrite ore, averaging only about l'/o in copper tenor, with patches up to 2.5% copper, and carrying 47 to 50% sulphur. Gold and silver contents are very small, but the ore is valuable for the manufacture of sulphuric acid, saving the copper and precious metals as by-products. A large quantity of this ore is sold around San Francisco Bay, and a description of the crushing and screening plant that prepares the pyrite for market will be found in the Mining and Scientific Press of Nov. 1, 1919, by L. C. White.

The mines are connected with Keswick by an 11-mile narrow-gauge steam railway, traversing a rugged country, with an average grade of nearly 4%, the elevation gained being 2,000'.

Since Sept., 1917, company has been treating an average of 500 tons daily in its flotation mill. Including mill concentrates, pyrites from the Hornet mines and other ores, about 20,000 tons a month are shipped from the mines to the Martinez smelter.

Employs about 500 men.in Shasta county, and 200 at the smelter in Contra Costa county.

The Keswick smelter, fully described in Vol. VIII, Copper Handbook, has been dismantled. The 250-ton oil flotation mill started operating in March, 1915, and was enlarged to 550-ton capacity in 1917. It is located 5 miles from Iron Mountain on the narrow-gauge railway. A complete description is in the Mining and Scientific Press of Sept. 6, 1919.

The 350-ton Martinez smelter, on San Francisco bay, has extensive acid works built at a cost of approximately $1,250,000. The Hornet ores.. low in copper but rich in sulphur, are burned, the sulphur fumes collected in lead-lined chambers and transformed into sulphuric acid by the Meyer chamber process, the cinder remaining after the roasting is smelted for its copper contents. The acid is sold crude and also is used as the basis of commercial fertilizers for which there is a considerable demand in the rich fruit and agricultural districts of California and the other Pacific coast states. The Martinez works also do a general custom business and are fully equipped with steam, electric and pneumatic power.

A 150-ton leaching plant was added to the smelter in 1917, and is successfully extracting copper from the cinders remaining after the sulphur is burned from the Hornet sulphide in the manufacture of sulphuric acid.

Production: Jan., 1919, was at the rate of 650 tons daily from the mines at Iron Mountain, and 500 tons daily from the Hornet. At one time, only a decade ago, this company was among the largest copper producers of the world, but has since greatly declined in output, production having been 29,727,040 Ib. fine copper in 1901; 19.116.160 Ib. in 1903: 6.814,000 !b. in 1907; 3,638,619 Ib. in 1908: 2,775,197 Ib. in 1909; 2,987,815 Ib. in 1910: 5.400.000 Ib. in 1911; 5.614,000 Ib. in 1912; 6,890,000 Ib. in 1913; 5.454.000 Ib. in 1914; 7,280,712 Ib. in 1915: 9,172,390 Ib. in 1916; 8.122,325 Ib. in 1917. and 6,802.612 Ib. in 1918. In Aug., 1919. the company stood at the head of Shasta county copper producers as the result of increased output and idleness of the Kennctt smelter of the Mammoth Copper Co.

Company has been managed with great prudence and marked success, both financially and technically and notwithstanding the depletion of an originally rich mine, has been able to make a success by the treatment of lowgrade pyrite ores, with the manufacture of acid.

TREASURE MINING CO. CALIFORNIA

Office: 576 Mills Bldgr., San Francisco. Mine office: Ainador City, Cal.

Officers: W. Rothchild, pres.; E. J. McCutcheon. v. p.; K. S. McCurdy, sec.-treas., with H. G. Stevenson, G. W. McEnerney, directors. O. H. Rohlfs, superintendent.

Property: one claim, near Amaclor City. Amador county, said to show a sold quartz vein in schist with dip 45° to 55° and N. W. strike.

Development: winze 700' deep: 50° incline shaft, with levels at 1.800'. 2.000', 2,160' and 2,300'. In 1918, reported good ore in lower levels, but nothing later is at hand. TRINITY COPPER CO. CALIFORNIA

Office: 33 State St.. Boston, Mass. Mine office: Kennett, Shasta county,

Officers: Thos. W. Lawson, pres.: Arnold Lawson, v. p.: John M. Reynolds, sec.; Allen Arnold, treas.; preceding with Arthur P. French, John N. Reynolds, John R. Turner, E. A. McSweeney, directors.

In September, 1919, T. W. Lawson, is reported to have advised shareholders "that the present company is in debt, and getting deeper in debt instead of getting out." He recommended that the property be sold to a new company, organized under laws of Virginia, "where the taxation is less severe." The proposed capital to be 1,000.000 shares, par $5. compared with Trinity Copper's 240.000 $25 shares. Each shareholder is to receive one new share for each share that he surrenders, while he may purchase new shares at $2 each. Another property is to be acquired, and part of its earnings can he used "to make a thorough exploration of nil Trinity's enormous ground." Lawson also said that he is regretfully compelled, as president of Trinity Copper, "to so radically change my views of its future. At the start-off, I made large profits. Since then, in the many stock market campaigns, which were started because of favorable outlook for the property, I have lost heavily." If Trinity cannot make profits with copper above 20 cents, as it was when operations were under way, it is time the propertv was closed down for all time.

Iron Mountain Mine:

 

 

equal protection of A. Sutro

NOW RECRUITING - HONEST AND COMPETENT

CONTRACTORS & ENGINEERS

CALL JOHN HUTCHENS @

Q: How does copper help us?
Copper is the element for producing color in hair and skin, maintaining the elasticity of skin and blood vessels, protecting against certain types of free radical, and allowing us to use oxygen properly for the production of energy. It is necessary for the functioning of nerve cells. The shape and texture of hair, as well as its color, can change in a copper deficiency. Too much iron can block absorption of copper, and not enough copper makes us store too much iron. With aging, our tissues lose copper as they store excess iron. Because of those changes, we need more vitamin E as we age.

Iron Mountain Mines announces supergene enrichment zone copper/gold prospect

In ore deposit geology , supergene processes or enrichment occur relatively near the surface. Supergene processes include the predominance of meteoric water circulation with concomitant oxidation and chemical weathering . The descending meteoric waters oxidize the primary ( hypogene ) sulfide ore minerals and redistribute the metallic ore elements. Supergene enrichment occurs at the base of the oxidized portion of an ore deposit. Metals that have been leached from the oxidized ore are carried downward by percolating groundwater, and react with hypogene sulfides at the supergene-hypogene boundary. The reaction produces secondary sulfides with metal contents higher than those of the primary ore. This is particularly noted in copper ore deposits where the copper sulfide minerals chalcocite , covellite , digenite , and djurleite are deposited by the descending surface waters.

SHASTA COUNTY PAD WITH WATER

By the common law, in case of an intrusion or deforcement, the party kept out of possession could not sue the wrong-doer by a mode of redress which was calculated merely for injuries committed against the land while in the possession of the owner. But now, by the 6 Ann. c. 18. if a guardian or trustee for any infant, a husband seised jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall, after the determination of their respective interests, hold over and continue in possession of the lands or tenements, without the consent of the person entitled thereto, they are adjudged to be trespassers. See also 4 Geo. 2. c. 18. and 11 Geo. 2. c. 19. as to tenants for years, &c. holding over; and ante, tit. Distress, Rent, Sufferance, &c.

A remainder-man, after entering upon a party in possession by intrusion, may maintain trespass against the intruders, though he retains possession. 1 M. & R. 220 ; 7 B. & C. 399.

For Immediate Release : November 8, 2010
Media Contact:
Nahal Mogharabi, mogharabi.nahal@epa.gov

U.S. EPA Proposes to Disapprove California's Air Quality Plans for South Coast and San Joaquin Valley
Agency Asks CA to Revise PM2.5 Plans to Better Protect Health of Residents

SAN FRANCISCO – Today, the U.S. Environmental Protection Agency is proposing to disapprove California's air quality plans for fine particles - also known as PM2.5 - for failure to achieve adequate emissions reductions in the South Coast and San Joaquin Valley air basins notoriously known for poor air quality.

States are required to submit plans to EPA that identify how health-based air quality standards will be attained in areas not meeting federal air quality standards. The plans submitted by the California Air Resources Board (CARB) aim to bring these areas into attainment with the national health based standards for PM2.5. However, EPA cannot approve the plans since they rely heavily on emissions reduction from rules that are being revised and have not been submitted to EPA for review. The state must submit the rules and also show how these rules will achieve the plans' air quality goals.

“California has a history of adopting aggressive rules to tackle some of the worst air quality in the nation, but we need to redouble our efforts,” said Jared Blumenfeld, Regional Administrator for EPA's Pacific Southwest Region. “EPA will continue to work with California to strengthen measures to improve air quality for the millions of residents in the South Coast and San Joaquin Valley.”

EPA is proposing to approve portions of the plans, such as the emission reductions from state and local rules that have been submitted to EPA and approved. Some of the locally adopted and EPA-approved rules include residential wood-burning programs for both South Coast and San Joaquin Valley, and South Coast's rules controlling emissions from various industrial processes.

California is a national leader in air pollution controls. The majority of the emission reductions needed to demonstrate attainment of the PM2.5 standards have already been adopted by CARB and the San Joaquin Valley and South Coast and Air Districts. Given the state's commitment to public health, EPA expects the state and local agencies will adopt creditable emissions reductions to meet the Clean Air Act requirements for attainment of the PM2.5 standards.

PM2.5 is made up of small particles in the air that can penetrate deep into the lungs and worsen medical conditions such as asthma and heart disease. Reducing the exposure of particulate matter will ultimately decrease emergency room visits, hospital admissions, and premature death. In September 2010, the state reported that more than 9,000 people die prematurely in CA each year due to PM2.5 pollution.

EPA intends to make a final decision on the plans in 2011, after reviewing public comments. In the event the agency finalizes these proposed disapprovals and the state fails to correct the deficiencies in a timely manner, certain sanctions would apply. More stringent facility permitting requirements may be imposed after 18 months and highway funding restrictions may be imposed after 24 months from the date of final disapproval.

Transportation projects scheduled for the first four years of the areas' transportation plans would not be affected, and should be able to continue as planned. Should our proposal be finalized, planning restrictions will be imposed; however, no transportation dollars will be withheld or lost. New funds must be spent on a more limited set of projects that improve air quality, such as mass transit, until the issues are resolved,

For more information the proposed disapproval, please visit http://www.epa.gov/region9/air/actions/ca.html

For more information on PM2.5, please visit http://www.epa.gov/pmdesignations/faq.htm

By virtue of the office of general conservator of the peace throughout the whole kingdom, the High Warden may commit all violators of the peace, or bind them in recognizances to keep it; but other Judges are only so in their own Courts.

Terris, bonis et calallis rehabendis post purgationem. A writ for a clerk to recover his lands, goods, and chattels formerly seized, after he had cleared himself of the felony of which he was accused, and delivered to his ordinary to be purged. Reg. Orig. 68.

ii. Local Governments
Section 2504 of the Lender Liability Act validates the portion of the CERCLA Lender Liability Rule that addresses involuntary acquisitions by government entities. State or local governments that acquire property by involuntary means such as bankruptcy, tax delinquency, or abandonment are excluded from the definition of “owner or operator” in CERCLA, and therefore are not liable under CERCLA Section 107(a). CERCLA § 101(20)(D). There is also a third-party affirmative defense available for government entities that acquire property “by escheat, or through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation.” CERCLA § 101(35)(A)(ii).
EPA’s 1995 enforcement policy on involuntary acquisition by lenders and local governments was followed with the guidance memorandum, Municipal Immunity from CERCLA Liability for Property Acquired through Involuntary State Action (October 20, 1995). These two policy memoranda clarified some of the issues surrounding involuntary municipal acquisition of properties. EPA provided further clarification on these issues in a fact sheet, The Effect of Superfund on Involuntary Acquisitions of Contaminated Property by Government Entities issued in December 1995. EPA continues to follow as guidance the Lender Liability Rule and the two 1995 guidance documents and subsequent fact sheets when addressing local government liability.
State or local government entities that acquire property after the enactment of the 2002 Brownfields Amendments and that are concerned
about potential contamination may want to seek the advice of counsel before taking title to ensure that they will have a liability protection (e.g., BFPP status or protection under the involuntary acquisition provision or third-party defense). State or local government entities should note that to achieve BFPP status, an entity must conduct AAI prior to purchase and comply with the other BFPP requirements. Conducting proper AAI prior to purchase is also important for state and local government entities relying on the BFPP protection for brownfield grant eligibility.

Abandoned mine cleanup ruling vs W.Va. upheld

November 08, 2010 @ 06:30 PM

The Associated Press

CHARLESTON, W.Va. (AP) — West Virginia regulators must obtain permits when they clean up abandoned mines.

That's the decision from a federal appellate court panel Monday in a case filed by conservation groups against state Environmental Protection Secretary Randy Huffman.

Three judges from the 4th U.S. Circuit Court of Appeals affirmed U.S. District Judge Irene Keeley's ruling requiring permits.

Keeley faulted the DEP for not setting acid mine drainage limits at 18 sites in northern West Virginia. Her January 2009 order concluded the state violated the Clean Water Act and allowed too much iron, manganese and aluminum into waterways.

Huffman argued that sets a dangerous precedent. A DEP spokeswoman did not immediately return a call to The Associated Press.

 

Emphatically saying what the law is, terminating the national emergency;

reforming legislation, abolishing holistic accounting & jurisprudence.

In all actions upon the case and other pleadings, wherein the party claiming may now by law allege his right generally, without averring the existence of such right from time immemorial, such general allegation shall still be sufficient, and if the same shall be denied, all the matters in the act mentioned and provided, applicable to the case, shall be admissible in evidence to sustain or rebut such allegation; and in all pleadings to actions of trespass, and in all other pleadings wherein before the act it would have been necessary to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed for such of the periods mentioned in the act as may be applicable to the case, and without claiming in the name or right of the owner of the fee, as is now usually done ; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter therein-before mentioned, or on any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation.

 

FMIX: New Live Chat Service

The FEMA Map Information eXchange (FMIX) is pleased to announce a new exciting service: Live Chat.  Live Chat will allow FEMA stakeholders to interact with Map Specialists real-time via an online forum. Specialists can field inquiries pertaining to a wide variety of topics including Letters of Map Change, Elevation Certificates, the release of new flood maps, and more. Map Specialists will be available for online chat Monday through Friday, from 9:00 am to 11:00 am and again from 3:00 pm to 5:00 pm Eastern Standard Time (Easter Daylight Time). To use Live Chat or for information regarding services provided by the FMIX, please click here . You can also reach the FMIX by telephone at 877-FEMA MAP (877-336-2627) or by email at FEMAMapSpecialist@riskmapcds.com .

Empowering Safe Lands & Watersheds

1. To invest with power, especially legal power or official authority. Stakeholder Meetings/CEQA

 

 

By What Warrant he claims to have, use, and enjoy the liberties, privileges, and franchises aforesaid.

A writ which lies against any person or corporation that usurps any franchise or liberty against the king without good title, and is brought against the usurpers to show by what right or title they hold or claim such franchise or liberty. It also lies for misuser or nonuser of privileges granted ; and, by Bracton, it may be brought against one who intrudes himself as heir into land, ftc. Old Nat. Br. 149.

TITLE

The legislature which possesses the supreme power in clausula.
The State possesses, as incidental to that power, the right of changing, modifying and abrogating the existing laws.
To assert that any can bind a subsequent by its ordinances, would in fact be to contra-
dict the above plain proposition ; if, there-fore, an Act contains a clause, " that it shall not be lawful to repeal and determine the same Act," such a clause, which is technically termed " clausula derogatoria," will be simply void, and the Act may, nevertheless, be repealed

(e), for non impedit clausula derogatoria quo minus ab eddem potentate res dissolvantur a quibus constituentur (/). And- again, perpetua lex est nullam legem humanam ac posi tiva/ni perpetuam esse, et clausula quce ahrogationem excludit ab initio non valet (/). The principle thus set forth seems to be of universal application, and it will be remembered that an Act may now be altered, amended, or repealed in the same
Non impedit clausula derogatoria quo minus ab eadem potestate res dissolvantura qua constituuntur.

intervention

 

WORK TAKEOVER

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.

"If the purpose of this statute was to divest the title of the owner of land in this way, It is unconstitutional. . . . It would be a proceeding which condemns without hearing, proceeds without Inquiry, and renders judgment without trial. It would not be due process of law" Alexander v. Gordon, 101 Fed. 91, 98, 41 CCA 228

The sole test of adverse holding under the statute is whether the true owner is actually disseized for the limitation period. "Actual occupancy of land to the exclusion of the true owner, regardless of whether in good faith or bad faith . . . satisfies the calls of the statute. Such adverse possession of part of a tract under color of title, with Intent to claim the whole, in legal effect extends to the boundaries of the tract." Ovier v. Morrison, 142 Wis. 243, 247, 125 NW 449 (per Marshall, J.).

When judges act when they do not have jurisdiction to act, or they enforce a void order (an order issued by a judge without jurisdiction), they become trespassers of the law, and are engaged in treason. (The Court: Yates v. Village of Hoffman Estates , Illinois , 209 F.Supp. 757 (N.D. Ill. 1962)

“The most obvious misconduct is to present false testimony or false evidence.” Napue v. Illinois (1959) 360 U.S. 264; United States v. Young (9th Cir. 1993) 17 F.3d 1201; United States v. Valentine (2nd Cir. 1987) 820 F.2nd 565; SEE: Bus. & Prof. Code § 6068(d); Penal Code § 1473(b), and Rule 5-200, Rules Prof. Conduct of State Bar.)

Due process is violated when false evidence is presented, whether offered intentionally or inadvertently. “Under well-established principles of due process, the prosecutor cannot present evidence it knows is false and must correct any falsity of which it is aware… even if the false evidence was not intentionally submitted.” ( Giles v. Maryland (1967) 386 U.S. 66… Napue v. Illinois (1959) 360 U.S. 264… People v. Sakarias (2000) 22 Cal.4th 596, 33 …” People v. Seaton , 26 Cal.4th 598, 647; see People v. Bolton (1979) 23 Cal.3d 208, 213-214; People v.Morales (2003) 112 Cal.App.4th 1176, 1192-1196.) “Rulings made in violation of Due Process are void.” ( Sabariego v Maverick , 124 US 261, 31 L Ed 430, 8 S Ct 461)

:" Rules of Professional Conduct - 3-200, Prohibitive Objectives -- Rules of Professional Conduct - 5-200 Deception to Court -- Business and Profession Code Section 6068 – SEE: Model Rule of Professional Conduct Rule 1.1, cmt. 5 (1983) (amended 1998) “…competent handling of a particular matter involves inquiry into analysis of the factual and legal elements of the problem and use of methods and procedures meeting the standards of competent practitioner."

When a breach of ethics, and a duty of omission results in a wrong of commission, it is often because of ignoring empirical evidence, i.e., then the abused victim and the laws that protect the victim -- even though it is relatively easy to know that a crime has, or has not been committed through empirical evidence, and the law -- but if the agents turn a blind eye to both evidence and the law, justice is lost .
This is NOT “harmless error,” rather it is unethical, blatant, deliberate and willful misconduct, and may be moral turpitude, malum in se, ( State v. Stiffler , 788 P.2 2205 (1990); Bus & Professional Code 6107-6109).

. Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction, or where it is obtained by extrinsic fraud. [Citations.]" 7 Witkin , Cal. Procedure, Judgment, § 286, p. 828.). ( Burns v. Municipal Court (1961) 195 Cal.App.2d 596, 599 .)

A void judgment or proceeding founded on a void judgment is void: 30A Am Jur Judgments

 

ABOLISH EPA-CERCLA-SUPERFUND: EX POST FACTO; BILL OF ATTAINDER; CRIME OF INFAMY

Sec. 9601. Definitions   For purpose of this subchapter-- (1) The term ``act of God'' means an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight.

Citations for: Withdrawal of Proposed Rules; Discontinuing Rulemaking Efforts Listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions

Citations

Class Action Fairness: New Plaintiffs May Make an Old Case Removable

 

Is, or is not, the act contrary to the provisions of the fifth, sixth, and fourteenth amendment to the Constitution of the United States?

Does, or does not, the act, directly or indirectly, deprive any person
of property without due process of law?

Is the State deprived by the Act of any right guaranteed to it in the Constitution of the United States, or therein implied?

ANTITRUST - PIRACY - EXTORTION - MALICE - ABUSE - ERRORS OF IMPUNITY & MISCARRIAGE OF JUSTICE - RELIGION - COERCIVE MONOPOLY = SLAVERY

Entity Number Date Filed Status Entity Name Agent for Service of Process
C0818998 06/21/1977 ACTIVE IRON MOUNTAIN MINES, INC. T. W. ARMAN
Entity Name: IRON MOUNTAIN MINES, INC.
Entity Number: C0818998
Date Filed: 06/21/1977
Status: ACTIVE
Jurisdiction: CALIFORNIA
Entity Address: 9940 BUSINESS PARK DR #185
Entity City, State, Zip: SACRAMENTO CA 95827
Agent for Service of Process: T. W. ARMAN
Agent Address: 9940 BUSINESS PARK DR #185
Agent City, State, Zip: SACRAMENTO CA 95827

KAISER REPORT

RUSKIN PLAN

 

Business Entity Information
Status:   Default File Date:   2/27/2001
Type:   Domestic Limited-Liability Company Entity Number:  LLC2027-2001
Qualifying State:  NV List of Officers Due:  2/28/2010
Managed By:  Managing Members Expiration Date:  2/27/2501
NV Business ID:  NV20011022183 Business License Exp:


Registered Agent Information
Name:   GKL RESIDENT AGENTS/FILINGS, INC. Address 1:   1000 EAST WILLIAM STREET STE 204
Address 2:  City:   CARSON CITY
State:   NV Zip Code:   89701
Phone:  Fax: 
Mailing Address 1:  Mailing Address 2: 
Mailing City:  Mailing State:   NV
Mailing Zip Code: 
Agent Type:   Commercial Registered Agent - Corporation
Jurisdiction:   NEVADA Status:   Active
View all business entities under this registered agent


Financial Information
No Par Share Count:  0 Capital Amount:  $ 0
No stock records found for this company


Officers Include Inactive Officers
 Manager - TED ARMAN
Address 1:   PO BOX 992867 Address 2: 
City:   REDDING State:   CA
Zip Code:   96099 Country: 
Status:   Active Email: 

 

Business Entity Search

 Entity Name  NV Business ID  Status  Type
IRON MOUNTAIN MINES, LLC NV20011022183 Default Domestic Limited-Liability Company
 Entity Name  NV Business ID  Status  Type
ESSENTIAL SOLUTIONS, INC. NV19981381493 Default Domestic Corporation
 

Strategic Sourcing

Current Status

The USAEC is awarding three multiple award task order contracts intended to help lower the cost of installation environmental services. These contracts offer proven contractors, task order competition, performance-based acquisition, and no contract management fees. The three contracts cover installation environmental services for:

  • Environmental compliance (awarded July 2010),
  • Cultural resources (awarded July 2010),
  • Natural resources (awarded Sept 28 2010).

Here's how to put a task order on one of these contracts:

  • Know what you want to buy and how much it should cost.
  • Make sure that what you want to buy is covered by one of the contract scopes below.
  • The Environmental Compliance contract is for purchasing services for regulation of air pollution, drinking water, water pollution, waste management, above-ground and under-ground storage tank management, spill prevention and cleanup, emergency planning and reporting, and pesticide management. Typical products under the contract are surveys, inventories, plans, permit applications, or other studies, program Improvement such as pollution prevention assessments, sampling and analysis, training and outreach, and compliance and management system reviews.
  • The Cultural Resources contract is for purchasing services for management of historic buildings and archaeological sites and artifacts. Typical products are surveys, inventories and evaluations, archaeological data recovery, mitigation strategies, historic building documentation, and other documents, plans, or outreach.
  • The Natural Resources contract is for purchasing services for management of threatened and endangered species, wetlands and riparian areas, habitat, soil and erosion control, forestry and reimbursable agriculture activities, and wildlife management. Typical products are surveys and inventories, habitat management, restoration, and mitigation, training, program improvement, and compliance review.
  • Other contracts are available for purchasing Environmental Cleanup and for completing Environment Assessment or Impact Studies (Expected to be awarded by 1st quarter 2011).
  • You cannot buy these things from these contracts: Construction, equipment purchase and installation hazardous waste disposal or staff augmentation. Please contact your Installation Contracting Command (MICC) office for more information on these topics.

These are the steps installation managers should take to place a task order on these environmental contracts.

Prepare a draft task order and include:

  • Performance work statement. State your requirements in clear, concise, easily understood and measurable terms. Don't dictate how the work is to be accomplished; rather, allow the contractor the latitude for innovation and creativity.
  • Independent government cost estimate.
  • Performance standards and acceptable measures. Tell the contractor what you'll measure and how you'll know that the product or service is good.
  • Requirements for security, installation access, camera passes, and site access.
  • A brief overview of the installation compliance program relevant to the task order: Compliance universe (for example, is the facility or site permitted, compliance size in regulatory terms), significant physical facilities (such as treatment plants, boilers, or waste storage facilities), number and type of compliance sites at the garrison, government and contract staffing responsible for managing the program.

Submit to Contracting Authority

  • Army Installations: Submit to your Mission and Installation Contracting Command (MICC) office who can award and administer task orders under these contracts.
  • Other DOD contracting agencies may request delegation of authority for these contracts from the MICC Center at Fort Bragg. The Contracting Officer can be reached at 910-643-7347 and the Contracting Specialist 910-396-6401.

The MICC Center–Fort Bragg will be publishing more detailed Ordering Guides in September 2010.

USAEC plans for the Management and Professional Services indefinite delivery/indefinite quantity contract are on hold through FY11.

Background

Strategic sourcing is the collaborative and structured process of critically analyzing an organization's spending and using this information to make business decisions about acquiring commodities and services more effectively and efficiently. Strategic Sourcing will help increase efficiency and savings to ensure that our Soldiers today — and the Soldiers of the future — have the resources necessary to maintain their readiness.

The Office of Management and Budget issued a directive May 20, 2005 that requires each federal agency and department to implement strategic sourcing, identify commodities for strategic sourcing and then report annually on progress. See the OMB Web site.

The U.S. Army Installation Management Command (IMCOM) implemented a strategic sourcing analysis of environmental services in FY 2007. IMCOM has chosen to implement many of the key findings from the analysis by establishing national indefinite delivery/indefinite quantity contracts that will allow IMCOM to more effectively contract for its environmental services. These include

  • Management and Professional Services
  • Environmental Compliance
  • Cultural Resources
  • Natural Resources

This strategic sourcing initiative is intended to improve environmental performance, ensure a consistent approach to environmental requirements, reduce the amount of time to award contracts and reduce contract costs.

Please continue to check this section for updated information.

Strategic Sourcing of Environmental Services Article from IMCOM Journal

The Summer 2008 edition of the IMCOM Journal includes an article on Strategic Sourcing of Environmental Services . The article explains why the Installation Management Command (IMCOM) is pursuing the strategic sourcing process, what steps are involved, and where we are going next in the area of environment. It also provides examples of how USAEC is already using strategic sourcing concepts successfully in Cultural Resources, Environmental Cleanup, and the Military Munitions Response Program.

United States v. Atlantic Research Corporation, 551 U.S. 128 (2007)

United States v. Atlantic Research Corporation is one of the most important cases decided by the Supreme Court under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as the Superfund statute.

CERCLA is designed to provide a mechanism to facilitate the cleanup of historically contaminated properties. CERCLA comes into play when there is a “release” of hazardous substances at a “facility,” which might be an old industrial plant, a landfill, the site of a spill, or any other contaminated area. Under CERCLA, parties (called “potentially responsible parties,” or “PRPs”) that owned the contaminated site, operated it, arranged for the disposal of hazardous substances at the site, or transported wastes there, may be liable for cleanup costs.

The Environmental Protection Agency (EPA) may either clean up a Superfund site itself and then recover its costs from PRPs, or may order PRPs to undertake the cleanup themselves. Under section 107 of CERCLA, PRPs are jointly and severally liable for the government's cleanup cost, so that the government need only sue one PRP for the entire cost; that defendant PRP would then have to sue other PRPs for “contribution,” in other words sue other PRPs for the amount the suing PRP paid above and beyond the suing party's “fair share” of the expenses of cleanup. A private party which cleans up a site may also sue other PRPs.

Before Atlantic Research , it was settled law that a PRP that cleaned up a site and sought a share of costs from other PRPs could only sue those PRPs for contribution under section 113 of CERCLA, and only in limited circumstances. In Atlantic Research , the owner of a facility that retrofitted rocket motors for the United States sued the Government for partial reimbursement of costs incurred in cleaning up contamination at the facility. Because precedent foreclosed a contribution action under section 113, the company sought reimbursement under section 107.

The United States District Court for the Western District of Arkansas dismissed the suit for failure to state a claim. On appeal, the Supreme Court decided that a party that cleans up a site can sue other PRPs under section 107 of CERCLA, and is not relegated to a contribution claim under section 113.

Statutory and Enforcement
Tools for the Cleanup, Reuse, and Revitalization of Contaminated Sites

“Participation in Management” Defined
A lender “participates in management” (and will not
qualify for the exemption) if the lender:

Exercises decision-making control over environmental compliance related to the facility, and in doing so, undertakes responsibility for hazardous substance handling or disposal practices;

Exercises control at a level similar to that of a manager of the facility, and in doing so, assumes or manifests responsibility with respect to day-to-day decision-making on environmental compliance; or

All, or substantially all, of the operational (as opposed to financial or administrative) functions of the facility other than environmental compliance.

The term “participate in management” does not include certain activities such as when the lender:

Inspects the facility;

Requires a response action or other lawful means to address a release or threatened release;

Conducts a response action under CERCLA § 107(d)(1) or under the direction of an on-scene coordinator;

Provides financial or other advice in an effort to prevent or cure default; or

Restructures or renegotiates the terms of the security interest; provided the actions do not rise to the level of participating in management.
After foreclosure, a lender who did not participate in management prior to foreclosure is not an “owner or operator” if the lender:

Sells, releases (in the case of a lease finance transaction), or liquidates the facility;

Maintains business activities or winds up operations;

Undertakes CERCLA § 107(d)(1) or under the direction of an on-scene coordinator; or

Takes any other measure to preserve, protect, or prepare the facility for sale or disposition; provided the lender seeks to divest itself of the facility at the earliest practicable, commercially reasonable time, on commercially reasonable terms. EPA considers this test to be met if the lender, within 12 months of foreclosure, lists the property with a broker or advertises it for sale in an appropriate publication.

General Docket
United States Court of Appeals for the Ninth Circuit
Court of Appeals Docket #: 09-17411 Docketed: 10/29/2009
Nature of Suit: 1893 Environmental Matters
USA, et al v. T.W. Arman, et al
Appeal From: U.S. District Court for Eastern California, Sacramento
Fee Status: Paid
Case Type Information:
     1) civil
     2) united states
     3) null
Originating Court Information:
District: 0972-2 : 2:91-cv-00768-JAM-JFM
Court Reporter: Kelly Ann O'Halloran
Trial Judge: John A. Mendez, District Judge
     Date Filed: 06/12/1991
     Date Order/Judgment:      Date Order/Judgment EOD:      Date NOA Filed:      Date Rec'd COA:
     09/29/2009      09/29/2009      10/23/2009      10/29/2009
Prior Cases:
09-70047
Date Filed: 01/07/2009      Date Disposed: 02/18/2009      Disposition: Denied - Judge Order
09-71150
Date Filed: 04/20/2009      Date Disposed: 07/28/2009      Disposition: Denied - Judge Order

Current Cases:
     None


UNITED STATES OF AMERICA
                      Plaintiff - Appellee
Joan M. Pepin
Direct: 202-305-4626
[COR LD NTC Government]
DOJ - U.S. DEPARTMENT OF JUSTICE
Environment & Natural Resources Division
P.O. Box 23795, L'Enfant Plaza Station
Washington, DC 20026-3795

Larry Corcoran, Esquire, Assistant U.S. Attorney
Direct: 202-305-0370
[COR NTC Assist US Attorney]
DOJ - U.S. DEPARTMENT OF JUSTICE
Environmental Enforcement Section
P.O. Box 7611, Ben Franklin Station
Washington, DC 20044-7611

Yoshinori H. T. Himel, Esquire, Assistant U.S. Attorney
Direct: 916-554-2760
[COR NTC Assist US Attorney]
USSAC - OFFICE OF THE U.S. ATTORNEY
Suite 10-100
501 I Street
Sacramento, CA 95814
STATE OF CALIFORNIA
                      Plaintiff - Appellee
Margarita Padilla, Supervising Deputy Attorney General
Direct: 510-622-2135
[COR NTC Dep State Aty Gen]
AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL (OAKLAND)
20th Floor
1515 Clay Street
Oakland, CA 94612-0550

Sara J. Russell, Esquire, Supervising Deputy Attorney General
Direct: 916-324-7853
[COR NTC Dep State Aty Gen]
AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL (SAC)
Suite 125
1300 I Street
P.O. Box 944255
Sacramento, CA 94244-2550
WILLIAM A. LOGAN, JR.
                      Appellant
William A. Logan, Jr.
Direct: 925-945-6792
[NTC Pro Se]
Logan & Giles LLP
2175 N. California Blvd.
Suite 310
Walnut Creek, CA 94596
LOGAN & GILES LLP
                      Appellant
William A. Logan, Jr.
Direct: 925-945-6792
[COR LD NTC Retained]
Logan & Giles LLP
2175 N. California Blvd.
Suite 310
Walnut Creek, CA 94596
v.

IRON MOUNTAIN MINES
                      Defendant
RHONE-POULNEC BASIC CHEMICALS COMPANY
                      Defendant
BAYER CROPSCIENCE, INC., FKA Aventis CropScience USA, Inc.
                      Defendant
T. W. ARMAN
                      Defendant - Appellant
William A. Logan, Jr.
Direct: 925-945-6792
[COR LD NTC Retained]
(see above)
UNITED STATES OF AMERICA; STATE OF CALIFORNIA,

           Plaintiffs - Appellees,

   v.

WILLIAM A. LOGAN, Jr.; LOGAN & GILES LLP,

           Appellants,

   v.

IRON MOUNTAIN MINES; RHONE-POULNEC BASIC CHEMICALS COMPANY; BAYER CROPSCIENCE, INC., FKA Aventis CropScience USA, Inc.,

           Defendants,

and

T. W. ARMAN,

           Defendant - Appellant.
10/29/2009  1 
11 pg, 248.18 KB
DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND CADS: No. The schedule is set as follows: Transcript due for Orig Clerk USDC, Sacramento on 12/22/2009. Certificate of record due 12/29/2009. Appellant T. W. Arman, Appellant William A. Logan Jr. and Appellant Logan & Giles LLP opening brief due 02/08/2010. Appellee State of California and Appellee United States of America answering brief due 03/09/2010. Appellant's optional reply brief is due 14 days after service of the answering brief. [7112437] (GR)
10/29/2009  2 
10 pg, 211.73 KB
Filed Appellants T. W. Arman, William A. Logan, Jr. and Logan & Giles LLP Civil Appeals Docketing Statement. Served on 10/23/2009. [7112442] (GR)
12/10/2009  3 
2 pg, 30.85 KB
Filed order MOATT: (EC)Within 21 days after the date of this order, appellants shall move for voluntary dismissal of this appeal or show cause why it should not be dismissed for lack of jurisdiction. If appellants do not comply with this order, the Clerk shall dismiss this appeal pursuant to Ninth Circuit Rule 42-1. Briefing is suspended pending further order of the court. [7159804] (KD)
12/14/2009  4 
4 pg, 77.11 KB
Filed (ECF) Appellants William A. Logan, Jr. and Logan & Giles LLP response to order to show cause dated 12/10/2009. Date of service: 12/10/2009. [7164029] (WAL)
01/04/2010  5 
2 pg, 649.3 KB
Filed (ECF) notice of appearance of Joan M. Pepin for Appellee USA. Date of service: 01/04/2010. [7181008] (JMP)
01/04/2010  6  Added attorney Joan M. Pepin for USA, in case 09-17411. [7181057] (EL)
02/11/2010  7 
30 pg, 2.16 MB
Filed Appellant T. W. Arman motion "breatch of patent title, supersedeas writ de ejectione firmae....". Served on 02/08/2010. [7230966] (CW)
03/02/2010  8 
3 pg, 220.87 KB
Received from John F. Hutchens' notice regarding absolute & immediate injunctive relief. [7249887] (EL)
03/08/2010  9 
2 pg, 137.21 KB
Received from John Hutchens' Breve Soke, served on 03/05/2010 [7256642] (EL)
03/11/2010  10 
2 pg, 28.89 KB
Filed order (MARY M. SCHROEDER and EDWARD LEAVY): The court has received and reviewed the response to this court's order to show cause. The jurisdictional issue does not appear suitable for summary disposition. Accordingly, the order to show cause is discharged. The court strikes the filings submitted by John F. Hutchens, a non-party to this appeal, received on February 11, 2010, March 2, 2010 and March 8, 2010, from the docket. If appellant has not already done so, appellant shall within 14 days after the date of this order, designate any reporter's transcripts or serve on appellee a statement indicating that appellant does not intend to order any transcripts. See 9th Cir. R. 10-3.1(a). If appellant designates transcripts, the transcripts will be due April 26, 2010. The opening brief and excerpts of record are due May 26, 2010; the answering brief is due June 25, 2010; and the optional reply brief is due within 14 days after service of the answering brief. [7262669] (AF)
05/25/2010  12 
1 pg, 32.68 KB
Filed certificate of record on appeal. RT filed in DC 12/17/08, 9/23/09 [7351079] (EL)
05/26/2010  11  14 day oral extension by phone of time to file Appellant Logan & Giles LLP brief. Appellant Logan & Giles LLP opening brief due 06/09/2010. Appellee State of California and Appellee United States of America answering brief due 07/09/2010. The optional reply brief is due 14 days after service of the appellee brief. [7350286] (TH)
06/09/2010  13 
27 pg, 64.43 KB
Submitted (ECF) Opening brief for review. Submitted by Appellants William A. Logan, Jr. and Logan & Giles LLP. Date of service: 06/09/2010. [7366866] (WAL)
06/09/2010  14  Received non-party John Hutchens' UNDER the great SEAL absolute order for inspection petition for emergency review order for reinstatement of claims etc, served on 6/9/10. [7367056] (EL)
06/10/2010  15 
2 pg, 81.46 KB
Filed clerk order: The opening brief [ 13 ] submitted by William A. Logan, Jr. and Logan & Giles LLP is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a blue cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7368096] (WP)
06/11/2010  16  Filed Appellants William A. Logan, Jr. and Logan & Giles LLP excerpts of record in 2 volumes. Served on 06/09/2010. [7374030] (WP)
06/17/2010  17  Received 7 paper copies of Opening brief [ 13 ] filed by William A. Logan, Jr. and Logan & Giles LLP. [7377357] (SD)
06/24/2010  18  Deleted Incorrect Docket Entry (LB)
06/24/2010  20  14 day oral extension of time granted to appellee USA. The answering brief for appellee USA is due 7/23/2010. The optional reply brief is due 14 days after service of the last-served answering brief. [7390098] (LB)
06/30/2010  19 
3 pg, 268.14 KB
Filed (ECF) Appellee State of California Correspondence: Letter to Clerk. Date of service: 06/30/2010 [7389577] (MP)
07/23/2010  21 
43 pg, 315.24 KB
Submitted (ECF) Answering brief for review. Submitted by Appellee USA. Date of service: 07/23/2010. [7415725] (JMP)
07/26/2010  22 
2 pg, 81.79 KB
Filed clerk order: The answering brief [ 21 ] submitted by USA is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a red cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7417446] (WP)
07/26/2010  23  Filed Appellee USA excerpts of record in 1 volume. Served on 07/23/2010. [7417457] (WP)
07/29/2010  24  Received 7 paper copies of Answering brief [ 21 ] filed by USA. [7422418] (SD)
08/05/2010  25  Oral extension of time granted to appellants T. W. Arman, William A. Logan, Jr. and Logan & Giles LLP. The reply brief is due 8/23/2010. [7435466] (LB)
08/23/2010  26 
7 pg, 24.79 KB
Submitted (ECF) Reply brief for review. Submitted by Appellants William A. Logan, Jr. and Logan & Giles LLP. Date of service: 08/23/2010. [7449230] (WAL)
08/24/2010  27 
2 pg, 81.79 KB
Filed clerk order: The reply brief [ 26 ] submitted by William A. Logan, Jr. and Logan & Giles LLP is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a gray cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7450466] (WP)
08/26/2010  28  Received 7 paper copies of Reply brief [ 26 ] filed by William A. Logan, Jr.. [7454559] (SD)
General Docket
United States Court of Appeals for the Ninth Circuit
Court of Appeals Docket #: 09-17411 Docketed: 10/29/2009
Nature of Suit: 1893 Environmental Matters
USA, et al v. T.W. Arman, et al
Appeal From: U.S. District Court for Eastern California, Sacramento
Fee Status: Paid
Case Type Information:
     1) civil
     2) united states
     3) null
Originating Court Information:
District: 0972-2 : 2:91-cv-00768-JAM-JFM
Court Reporter: Kelly Ann O'Halloran
Trial Judge: John A. Mendez, District Judge
     Date Filed: 06/12/1991
     Date Order/Judgment:      Date Order/Judgment EOD:      Date NOA Filed:      Date Rec'd COA:
     09/29/2009      09/29/2009      10/23/2009      10/29/2009
06/24/2010  20  14 day oral extension of time granted to appellee USA. The answering brief for appellee USA is due 7/23/2010. The optional reply brief is due 14 days after service of the last-served answering brief. [7390098] (LB)
06/30/2010  19  Filed (ECF) Appellee State of California Correspondence: Letter to Clerk. Date of service: 06/30/2010 [7389577] (MP)
07/23/2010  21  Submitted (ECF) Answering brief for review. Submitted by Appellee USA. Date of service: 07/23/2010. [7415725] (JMP)
07/26/2010  22  Filed clerk order: The answering brief [ 21 ] submitted by USA is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a red cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7417446] (WP)
07/26/2010  23  Filed Appellee USA excerpts of record in 1 volume. Served on 07/23/2010. [7417457] (WP)
07/29/2010  24  Received 7 paper copies of Answering brief [ 21 ] filed by USA. [7422418] (SD)
08/05/2010  25  Oral extension of time granted to appellants T. W. Arman, William A. Logan, Jr. and Logan & Giles LLP. The reply brief is due 8/23/2010. [7435466] (LB)
08/23/2010  26  Submitted (ECF) Reply brief for review. Submitted by Appellants William A. Logan, Jr. and Logan & Giles LLP. Date of service: 08/23/2010. [7449230] (WAL)
08/24/2010  27  Filed clerk order: The reply brief [ 26 ] submitted by William A. Logan, Jr. and Logan & Giles LLP is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a gray cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7450466] (WP)
08/26/2010  28  Received 7 paper copies of Reply brief [ 26 ] filed by William A. Logan, Jr.. [7454559] (SD)

§9-1301. Law governing perfection and priority of security interests

Except as otherwise provided in sections 9-1303 through 9-1306, the following rules determine the law governing perfection, the effect of perfection or nonperfection and the priority of a security interest in collateral. [ 1999, c. 699, Pt. A, §2 (NEW) ; 1999, c. 699, Pt. A, §4 (AFF) .]

(1).   Except as otherwise provided in this section, while a debtor is located in a jurisdiction, the local law of that jurisdiction governs perfection, the effect of perfection or nonperfection and the priority of a security interest in collateral. [ 1999, c. 699, Pt. A, §2 (NEW) ; 1999, c. 699, Pt. A, §4 (AFF) .] (2).   While collateral is located in a jurisdiction, the local law of that jurisdiction governs perfection, the effect of perfection or nonperfection and the priority of a possessory security interest in that collateral. [ 1999, c. 699, Pt. A, §2 (NEW) ; 1999, c. 699, Pt. A, §4 (AFF) .] (3).  Except as otherwise provided in subsection (4), while tangible negotiable documents, goods, instruments, money or tangible chattel paper is located in a jurisdiction, the local law of that jurisdiction governs: (a). Perfection of a security interest in the goods by filing a fixture filing; [ 1999, c. 699, Pt. A, §2 (NEW) ; 1999, c. 699, Pt. A, §4 (AFF) .] (b). Perfection of a security interest in timber to be cut; and [ 1999, c. 699, Pt. A, §2 (NEW) ; 1999, c. 699, Pt. A, §4 (AFF) .] (c). The effect of perfection or nonperfection and the priority of a nonpossessory security interest in the collateral. [ 1999, c. 699, Pt. A, §2 (NEW) ; 1999, c. 699, Pt. A, §4 (AFF) .] [ 2009, c. 324, Pt. B, §34 (AMD) ; 2009, c. 324, Pt. B, §48 (AFF) .] (4).   The local law of the jurisdiction in which the wellhead or minehead is located governs perfection, the effect of perfection or nonperfection and the priority of a security interest in as-extracted collateral. [ 1999, c. 699, Pt. A, §2 (NEW) ; 1999, c. 699, Pt. A, §4 (AFF) .] SECTION HISTORY 1999, c. 699, §A2 (NEW) . 1999, c. 699, §A4 (AFF) . 2009, c. 324, Pt. B, §34 (AMD) . 2009, c. 324, Pt. B, §48 (AFF) .

 

Bayer CropScience Selected As Finalist for 2010 NCTA 21 Awards

 

Crop Science Company Recognized In Green Technology Company Category

Raleigh, NC -- ( SBWIRE ) -- 11/08/2010 -- Bayer CropScience ( http://www.bayercropscience.com ), one of the world's top innovative crop science companies in the areas of crop protection, non-agricultural pest control, seeds and traits, has been nominated and selected as a finalist for the 2010 North Carolina Technology Association (NCTA) 21 Awards in the category of green technology company. Winners will be recognized at the annual awards gala on Wednesday, Nov. 10 at the Sheraton Imperial Hotel at 4700 Emperor Blvd. in Durham, N.C., presented in conjunction with title sponsor Grant Thornton. The theme for this year's event is “A License To Excel,” and more than 600 business and technology leaders from across the state are expected to attend.

Bayer CropScience believes that the future of agriculture relies on innovation to ensure growers have the tools to produce greater yields off the same amount of land. By 2050, the global population is expected to reach 9 billion people, and new technology – from classical chemistry, to new plant traits and high-quality, high-performance seed -- is key to safeguarding the food supply. Modern plant breeding, including biotech, is critical to making plants less sensitive to the stresses imposed by climatic and environmental factors and to increase resistance to pests which boosts yields to manage global demand for food.

The company is also working to develop new technologies in crops such as cotton, rice, canola, corn and soybeans that are more stress-tolerant and produce higher yields. Bayer CropScience recently opened its Innovation Center in Morrisville to support its rapidly growing seeds and traits business.

RETROACTIVE LIABILITY UNDER SUPERFUND: TIME TO SETTLE

Business Entity Detail

Entity Name: ARTESIAN MINERAL DEVELOPMENT & CONSOLIDATED SLUDGE, INC.
Entity Number: C2953228
Date Filed: 03/07/2008
Status: SUSPENDED
Jurisdiction: CALIFORNIA
Entity Address: 3576 TERRACE WAY SUITE A
Entity City, State, Zip: LAFAYETTE CA 94549
Agent for Service of Process: JEFFREY L HEATON
Agent Address: 3576 TERRACE WAY SUITE A
Agent City, State, Zip: LAFAYETTE CA 94549

JEFFREY L. HEATON,

FACILITY COMPLIANCE CONTRACTOR

NOTICE: IMPOSITION OF PROPRIETARY CONTROL BY THE RESIDENT DEPUTY WATER MARSHALLS - FOREST WARDENS

ENVIRONMENTAL COMMAND OFFICER - PRIVATE INSPECTOR GENERAL - DISASTER ASSISTANCE DIRECTORATE

Personnel License List for HEATON, JEFFREY LOU

Click on the license number to see the license detailed page of information for the person you selected.

License # Business Name City Association Date Disassociation Date Status
517509 HEATON CONST LAFAYETTE 09/11/1987 ACTIVE
830148 ALTAMONT HOMES CONSTRUCTI CONCORD 12/30/2003 CANCELLED

 

License Number

517509

Extract Date: 10/25/2010
Business Information HEATON CONST
3576 TERRACE WAY #A
LAFAYETTE, CA 94549

Business Phone Number:(925) 300-5885
Entity: Sole Ownership
Issue Date 09/11/1987
Expire Date 09/30/2011
License Status

This license is current and active. All information below should be reviewed.

Additional Status:
Classifications: Class Description

B

GENERAL BUILDING CONTRACTOR

Bonding: Contractor's Bond

This license filed Contractor's Bond number 100115733 in the amount of $12,500 with the bonding company
AMERICAN CONTRACTORS INDEMNITY COMPANY .

Effective Date: 01/13/2010
Contractor's Bonding History

Workers' Compensation:

This license is exempt from having workers compensation insurance; they certified that they have no employees at this time.

Effective Date: 09/30/1991

Expire Date: None

License Number

830148

Extract Date: 10/26/2010
Business Information ALTAMONT HOMES CONSTRUCTION
1065 MOHR LN UNIT B
CONCORD, CA 94518

Business Phone Number:(925) 864-8574
Entity: Partnership
Issue Date 12/30/2003
Expire Date 04/25/2005
License Status

This license is canceled and not able to contract.

Additional Status:
Classifications: Class Description

B

GENERAL BUILDING CONTRACTOR

Bonding: Contractor's Bond

This license filed Contractor's Bond number 604063 in the amount of $12,500 with the bonding company
AMERICAN CONTRACTORS INDEMNITY COMPANY .

Effective Date: 01/01/2007

Cancellation Date: 09/01/2010
Contractor's Bonding History

Bond of Qualifying Individual

1.

A qualifying partner is not required to post a bond of qualifying individual.
BQI's Bonding History

Workers' Compensation:

This license is exempt from having workers compensation insurance; they certified that they have no employees at this time.

Effective Date: 12/11/2003

Expire Date: None

Miscellaneous Information: Date Description

04/25/2005

LICENSE CANCELLED PER REQUEST

Personnel License List for HUTCHENS, JOHN FRANCIS

Click on the license number to see the license detailed page of information for the person you selected.

License # Business Name City Association Date Disassociation Date Status
682796 HUTCHENS LANDSCAPE MAINTE REDWOOD CITY 12/27/1993 EXPIRED
776612 SERENESCAPES CANYON 03/27/2000 EXPIRED
858616 ALTAMONT HOMES CONSTRUCTI MARTINEZ 05/11/2005 07/06/2005 CANCELLED

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.

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)

 

JOHN F. HUTCHENS

PRACTICAL FARMER

"Better late than never"

A tenant whose lease gives sufficient indicia of ownership to be considered an “owner” and who meets the elements of §§ 101(40)(A)-(H) and 107(r)(1).

FACILITY COMPLIANCE AUDITOR

Custody of prize ship. II.— Procedure In Prize Causes. Proceedings by Captor*.

16. Every ship taken as prize, and brought into port within the jurisdiction of a Prizo Court, shall forthwith, and without bulk broken, be delivered up to the marshal of the Court.

If there is no such marshal, then the ship shall be in like manner delivered up to the principal officer of Customs at the port.

The ship shall remain in the custody of the marshal, or of such officer, subject to the orders of the Court.

“Actual robbery is not an essential element in the crime of piracy jure gentium.

A frustrated attempt to commit a piratical robbery is equally piracy jure gentium.”

The U.S. District Court for the District of Maryland has determined that the requirements for innocent landowners contained in the 2001 Small Business Relief and Brownfields Revitalization Act do not apply retroactively. Accordingly, the court ruled that a landowner may file a CERCLA Section 107 cost recovery action against a waste generator because the landowner had fulfilled the innocent landowner requirements that were in place when the property was purchased.

The case involves a contaminated site where Mineral Pigments Corporation (which later became known as Rockwood Pigments NA, Inc.) dumped metal-bearing wastes into sand and gravel pits during the 1960s and 1970s. Later, 1325 G Street Associates ( G Street ) bought the site without realizing that it was contaminated.

The court ruled that Rockwood must reimburse G Street more than $181,000 for past response costs. Further, the court held that Rockwood is liable for G Street 's future response costs at the site. The September 7, 2004 decision was handed down in 1325 G Street Associates, LP v. Rockwood Pigments NA, Inc. (Docket Number: DKC 2002-1622).

Site History

Since the 1960s, Mineral Pigments Corporation (now Rockwood Pigments NA, Inc.) has manufactured metal-based pigments for use in paints and other products at its facility in Beltsville , Maryland . Wastes containing chromium, lead, and zinc are generated during the processes. From the late 1960s to the early 1970s, pigment wastes were disposed in mined-out sand and gravel pits located on land then owned by the Contee Sand and Gravel Company, Inc. (CSG). The CSG site is located approximately one mile west of the Mineral Pigments facility. During this period, about 50,000 gallons of liquid waste sludge containing lead, chromium, and zinc were dumped at the CSG site every two weeks....

 

INNOCENCE, PRESUMPTION OF - The indictment or formal charge against any person is not evidence of guilt. Indeed, the person is presumed by the law to be innocent. The law does not require a person to prove his innocence or produce any evidence at all. The Government has the burden of proving a person guilty beyond a reasonable doubt, and if it fails to do so the person is (so far as the law is concerned) not guilty.

Presumption of Innocence

The concept of the presumption of innocence had its roots in the Common Law, long established in Britain and thence in America . Besides being a part of the environment of justice in which our Founders lived, the concept is central to the ideas of Freedom and Due Process of Law. In addition, the common sense of any reasonably enlightened people must dictate that a person accused is innocent until proven guilty, just as much as they would believe that the other rights of defendants must be reasonably protected. Those protections for the accused were incorporated by the Founders into the Fourth, Fifth, Sixth and Seventh Articles of the Bill of Rights , and could not have been of any import had there not first been a presumption of innocence.

A close parallel to the presumption of innocence is the presumption of freedom -- that freedom is not something the government rations to the people, but rather a birthright the people own in its entirety, to be loaned back in small parts to the government with their knowing consent. The presumption of freedom is guaranteed by the Ninth and Tenth Articles of the Bill of Rights -- too often made light of today, but of key importance to the concept of individual Liberty . Those Articles demand, in essence, that unless specifically stated to the contrary by the Constitution, the people shall be presumed to own every freedom, as well as the power of self-determination.

If a citizen cannot be presumed innocent until proven guilty, he likewise will not be presumed to have freedom without an argument over his right to that freedom. At that juncture, both freedom and innocence yield to the convenience of government.

In both cases, the opposite must prevail if we are to call ourselves Americans.

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.

It is stated as unquestioned in the text-books, and has been referred to as a matter of course in the decisions of this court and in the courts of the several States. See Taylor on Evidence, vol. 1, c. 5, 126, 127; Wills on Circumstantial Evidence, c. 5, 91; Best on Presumptions, part 2, c. 1, 63, 64; c. 3, 31-58; Greenleaf on Evidence, part 5, ? ? 29, &c.; 11 Criminal Law Magazine, 3; Wharton on Evidence, ? 1244; Phillips on Evidence, Cowen & Hill's Notes, vol. 2, p. 289; Lilienthal v. United States, 97 U.S. 237; Hopt v. Utah, 120 U.S. 430; Commonwealth v. Webster, 5 Cush. 295, 320; State v. Bartlett, 43 N.H. 224; Alexander v. People, 96 Illinois, 96; People v. Fairchild, 48 Michigan, 31; People v. Millard, 53 Michigan, 63; Commonwealth v. Whittaker, 131 Mass. 224; Blake v. State, 3 Tex. App. 581; Wharton v. State, 73 Alabama, 366; State v. Tibbetts, 35 Maine, 81; Moorer v. State, 44 Alabama, 15.
Greenleaf traces this presumption to Deuteronomy , and quotes Mascardus De Probationibus to show that it was substantially embodied in the laws of Sparta and Athens . Greenl. Ev. part 5, section 29, note. Whether Greenleaf is correct or not in this view, there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration , as the following extracts show:

"Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day." Code, L. IV, T. XX, 1, 1. 25.

The noble (bivus) Trajan wrote to Julius Frontonus that no man should be condemned on a criminal charge in his absence, because it was better to let the crime of a guilty person go unpunished than to condemn the innocent ." Dig. L. XLVIII, Tit. 19, 1. 5.
"In all cases of doubt, the most merciful construction of facts should be preferred." Dig. L. L, Tit. XVII, 1. 56.
"In criminal cases the milder construction shall always be preserved." Dig. L. L, Tit. XVII, 1. 155, s. 2.
"In cases of doubt it is no less just than it is safe to adopt the milder construction." Dig. L. L, Tit. XVII, 1. 192, s. 1.

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, "a passionate man," seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, "Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Rerum Gestarum, L. XVIII, c. 1. The rule thus found in the Roman law was, along with many other fundamental and humane maxims of that system, preserved for mankind by the canon law. Decretum Gratiani de Presumptionibus, L. II, T. XXIII, c. 14, A.D. 1198; [***492] Corpus Juris Canonici Hispani et Indici, R.P. Murillo Velarde, Tom. 1, L. II, n. 140. Exactly when this presumption was in precise words stated to be a part of the common law is involved in doubt. The writer of an able article in the North American Review, January, 1851, tracing the genesis of the principle, says that no express mention of the presumption of innocence can be found in the books of the common law earlier than the date of McNally's Evidence (1802). Whether this statement is correct is a matter of no moment, for there can be no doubt that, if the principle had not found formal expression in the common law writers at an earlier date, yet the practice which flowed from it has existed in the common law from the earliest time.

Fortescue says : "Who, then, in England can be put to death unjustly for any crime? since he is allowed so many pleas and privileges in favor of life; none but his neighbors, men of honest and good repute, against whom he can have no probable cause of exception, can find the person accused guilty. Indeed, one would much rather that twenty guilty persons should escape the punishment of death than that one innocent person should be condemned and suffer capitally ." De Laudibus Legum Angliae, Amos' translation, Cambridge , 1825.

[*456] Lord Hale (1678) says : "In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die." 2 Hale P.C. 290. He further observes: "And thus the reasons stand on both sides, and though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger, quod dubitas, ne faceris." 1 Hale P.C. 24.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem. How fully the presumption of innocence had been evolved as a principle and applied at common law is shown in McKinley's case (1817), 33 St. Tr. 275, 506, where Lord Gillies says: "It is impossible to look at it [a treasonable oath which it was alleged that [**404] McKinley had taken] without suspecting, and thinking it probable, it imports an obligation to commit a capital crime. That has been and is my impression. But the presumption in favor of innocence is not to be reargued by mere suspicion. I am sorry to see, in this information, that the public prosecutor treats this too lightly; he seems to think that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman; and I was happy to hear from Lord Hermand he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a decree of conviction short only absolute certainty."

Purchasers who acquire property without knowledge of contamination on the property.

Sec. 9601. Definitions   For purpose of this subchapter-- (1) The term ``act of God'' means an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight.

Water Rights:

Water rights in California can be held by any legal entity. There are no restrictions on who can hold water rights, thus the owner can be an individual, related individuals, non-related individuals, trusts, corporations, government agencies, etc.. Water rights are considered real property (they can be owned separately from the land on which the water is used or diverted) and can be transferred from one owner to another, both temporarily or permanently. Any transfer (sale, lease, or exchange) is subject to approval by the State Water Board through the application process discussed above. Approval is granted upon finding that the transfer would not result in injury to any other water right and would not unreasonably affect fish, wildlife, or other instream beneficial use.

An appropriative water right in California can be maintained only by continuous beneficial use, and can be lost by five or more continuous years of non-use. Riparian rights, on the other hand, cannot be lost through non-use. Appropriative rights can also be lost through abandonment, but to constitute abandonment of an appropriative right, there must be the intent not to resume the beneficial use of the water right. As a result, abandonment is always voluntary. The rights to waters lost through abandonment or non-use revert to the public, but only after notice has been given and a public hearing is held.

Adjudications:

In California, adjudication can be initiated through the court or through statutory procedures. Court initiated adjudication occurs when a water right lawsuit is filed in court (all surface and ground water rights may be included in this procedure). In the case of a court initiated adjudication, the court often asks the State Water Board to act a referee and to conduct an investigation and report back. Statutory adjudications result when one or more entities claim a right from a specific source and file a petition with the State Water Board. The statutory procedure can be used to determine all rights to any body of water including percolating groundwater. The result of a statutory adjudication is a decree that integrates all rights on the water source and sets quantity, season, priority, etc..

California statute«.— (1) Under Civ. Code § 1007, the running of limitations operates on the state in respect to any property not dedicated to public use as soon as adverse possession thereof begins without reference to a presumed grant. Peo. v. Banning Co., 140 P 587. (2) A reservation of swamp lands of the state from s.-ile by state statute is a mere restriction on the general power delegated to the officers of the state to sell swamp lands, and the lands may be acquired by adverse possession, unless dedicated to a public use. Peo. v. Banning Co., 140 P 587. (3) Where tidelands of the state have been dedicated to a public use, there can be no adverse possession thereof to start the running of limitations against any action by the state or its authorized agencies to assert the public right or such possession as will give title by prescription to the adverse claimants against the public right. Peo. v. Banning Co., 140 P 587. (4) It has been held by the supreme court of the United States that the statute declares that the people of the state will not sue any person for or in respect of any real property by reason of the right or title of the people to the same, unless certain facts exist, was held to be obviated, as regards land in the bay of San Francisco beyond the established harbor line, by the act creating the board of state harbor commissioners and directing them to take possession of all that portion of the bay lying beyond the established harbor line. Weber v. Harbor Comrs., 18 Wall. 57, 68, 21 L. ed. 798. The court In this case said:

"It is contended with much force that the statute only applies to lands which the State holds, as private proprietor, for sale or other disposition, and in respect to which the title may be lost by adverse possession, as defined in the same statute, and not to lands which she holds as sovereign In trust for the public. . . . Where lands are held by the State simply for sale or other disposition, and not as sovereign in trust for the public, there Is some reason in requiring the assertion of her rights within a limited period, when any portion of such lands Is intruded upon, or occupied without her permission, and the policy of the statute would be carried out by restricting its application to such cases."

11-] In Minnesota it is held, however, under the statutory provision that the limitations for the commencement of actions "shall apply to the same actions when brought in the name of the state, or in the name of any officer," etc., that no distinction can be made between actions brought as "sovereign" or In a governmental capacity and those brought as "proprietary" or such as a private person might bring. St. Pnul v. Chicago, etc., R. Co., 45 Minn. 387, 48 NW 17.

46. Buckner v. Ktrkland, 110 S W 399, 33 KyL 603.

47. State v. Seattle, 57 Wash. 602, 107 P 827, 27 LRANS 11S8.

48. Rochester v. Kennedy, 229 Pa. 251, 78 A 133; Bagley v. Wallace, 16 Serg. & R. (Pa.) 245; State v. Arledge, 18 S. C. L. 401, 23 AmD 145. And see cases Infra this note. Compare Chamberlain v. Ahrens, 55 Mich. Ill, 20 NW 814 (where it was said that before the express statutory enactment title could be acquired to land owned by the state and held In a proprietary right as distinguished from lands held In trust for the public).

??] Where lands have been forfeited to the »täte under the delinquent tax laws or otherwise, (1) they cannot be the subject of adverse possession while the title thus acquired remains in the state. Bagley v. Wallace, 16 Serg. & R. (Pa.) 245. (2) And if the lands were held adversely to the owner at the time of the forfeiture the adverse character of the occupancy ceases when the state acquires title and cannot be asserted against either the state or its grantee. Armstrong v. Morrill, 14 Wall. (U. S.) 120, 20 L. ed. 765; Hall v. Gittings, 2 Harr. & J. (Md.) 112: Levasser v. Washburn, 11 Gratt. (52 Va.) 572. 578; Hale v. Branscum, 10 Gratt. (51 Va.) 418; Staats v. Board, 10 Gratt. (51 Va.) 400; Hall v. Webb, 21 W. Va. 318. In Levas.scr v. Washburn, supra, it was said; "It Is true, in a certain sense, the commonwealth takes the land on forfeiture in the same plight and condition in which It stood at the time of the forfeiture. The commonwealth takes the estate and title of the former owner, and no other. If at the time of the forfeiture his title were absolutely bound by the adversary possession of another, it may be no title would vest in the commonwealth, unless it were saved by the existence of her lien on the land for arrears of taxes; a point upon which I express no opinion. But if when the forfeiture accrued the right of entry still remained to the owner, though an ad versary possession had been commenced, the possession as to her must lose Its adversary character, and she must take and hold the subject with the same rights, privileges and immunities which pertain to any other lands held by her In her demesne. I can perceive no good reason why any discrimination should be made, or why she should hold forfeited lands upon different principles and with diminished privileges from those applying to other subjects of similar character."

| $ 448] 2. Time When the Statute Commences to Run—a. General Rule. The statute begins to run against a grantee of the sovereignty only from the time when he acquires title; in view of the rule excluding the government from the operation of the

statute an occupancy prior to that time will not be deemed adverse and can have no effect to give title by adverse possession against grantees of the federal 53 or state governments. 64 The applications of this general rule, however, are not uniform, as will hereinafter appear.

[§ 449] b. Applications of Rule—(1) Introductory Statement. Since there is a difference of opinion as to just when the title of the federal or state government passes to a grantee 55 the cases do not agree in the application of the above stated general rule.

[4 450] (2) Grantees of the Federal Government—(a) Rule That Patent Must Issue—aa. In General. On the ground that the title of the United States does not pass until the issuance of a patent it is held by one line of cases that the statute runs against a purchaser from the federal government only from the date of his patent. 50

[b] Escheat. —Title by adverse possession cannot be acquired in lands which have escheated to the state. Harlock v. Jackson, 5 S. C. L. 254, 6 S. C. L. 135: Ellis v. State, 3 Tex. Civ. A. 170, 21 SW 68. 24 SW 660.

Religion, sovereignty, natural rights, and the constituent elements of experience

Abstract:

It is commonly held that the idea of natural rights originated with the ancient Greeks, and was given full form by more modern philosophers such as John Locke, who believed that natural rights were apprehensible primarily to reason. The problem with this broad position is three-fold: first, it is predicated on the presumption that the idea of rights is modern, biologically speaking (only twenty three hundred years separates us from the Greeks, and three hundred from the English liberals); second, it makes it appear that reason and rights are integrally, even causally, linked; finally, it legitimizes debate about just what rights might be, even in their most fundamental essence. In consequence, the most cherished presumptions of the West remain castles in the air, historically and philosophically speaking. This perceived weakness of foundation makes societies grounded on conceptions of natural right vulnerable to criticism and attack in the most dangerous of manners. Most of the bloodiest battles and moral catastrophes of the twentieth century were a consequence of disagreement between groups of people who had different rationally-derived notions of what exactly constituted an inalienable right ("from each according to his ability, to each according to his need"). If natural rights are anything at all, therefore, they better be something more than mere rational constructions. The adoption of a much broader evolutionary/historical perspective with regards to the development of human individuality and society allows for the generation of a deep solution to this problem—one dependent on a transformation of ontology, much as moral vision. Such a solution grounds the concept of sovereignty and natural right back into the increasingly implicit and profoundly religious soil from which it originally emerged, and provides a rock-solid foundation for explicit Western claims for the innate dignity of man.

 

obiter dictum in the whole decision of
Judge Ross is the following: "The power to absolutely
prevent the use of such waters for the objectionable purposes
necessarily includes the power to prescribe the terms and
conditions upon which they may be so used." (81 Fed. Rep.
254.) Taken in connection with the facts of the case, however,
this language would simply mean : "The power to absolutely
prevent the use of such waters for the objectionable
purposes necessarily includes the power to prescribe the
terms and conditions without which they mav not be so used."
P*"^~ The decision simply decides the constitutional right of the
government to protect the navigability of the streams by
closing down, through legislation, any hydraulic mine in
these watersheds which has not submitted itself to the jurisdiction
of the commission. The miner will not be heard
to say in resistance that he is being deprived of his property
without due process of law. That is settled, but that is all
that is settled, by the judicial construction thus far given to
the Act. Is the working of the Act reciprocal? The miner
is bound with hooks of steel; but how about the farmer is
he likewise bound? Is the State of California bound? For
the purposes of any miner who desires to take his chances
under the act, the test of its constitutionality should be made
in some case brought against a company or person operating
under a duly obtained permit from the commission, and
not in a case against a company or person not operating
under such permit. Moreover, the test should be made in
defending a case where a farmer attacks the Act on the
ground that some constitutional right of his is being
abridged, or where the people of the State of California (on
relation of the Attorney-General) attack it on the ground
that some of their constitutional rights are being abridged,
by the action of a miner operating under a duly obtained permit
from the commission. No other test will settle the point.
The permit of the commission is already a finality as far as
the miner is concerned. Is it a finality as far as the farmer
and the State are -concerned? To settle this point, the ques

tions to be presented by a farmer or by the State, under the
two sets of cases above set forth, are the following : Is, or
is not, the act contrary to the provisions of the fifth amendment
to the Constitution of the United States? Does, or
does not, the act, directly or indirectly, deprive any person
of property without due process of law? Is the State deprived
by the Act of any right guaranteed to it in the Constitution
of the United States, or therein implied? It is contended
in behalf of the miner that neither the farmer nor the
State is deprived by the Act of any property or right without
due process of law; that, inasmuch as the commission has
complete jurisdiction to modify or revoke its permit at any
time, the farmer and the State are not necessarily deprived
by the Act of any "day in court" either may desire. Obviously,
unless the permit of the commission contemplated by
the Act is a finality as far as the courts are concerned, the
statute is an injury instead of a boon to the miner. If, however,
the permit is such a finality, and the Act is declared
constitutional in such a case as the above, then the farmer
and the State will, instead of going into the courts, have to
submit to the jurisdiction of the commission equally with
the miner, and the present threatened interminable litigation
would be at an end. The sooner the question is conclusively
settled the better, if there is to be any practical resumption
of hydraulic mining in the basins of the Sacramento and
San Joaquin Rivers.
In the basins of the Klamath and the Trinity, on the
other hand, hvdraulic mining is happily free. Nature, that
has handicapped the industry in one section of the State, has
favored it in another. These rivers are non-navigable, and
their banks for the most part precipitous. In these river
basins the only foe the industry has to contend with is the
occasional blackmailer. The courts have, however, mitigated
the power of these people for evil in two well-considered
decided cases. The rule of the decisions with reference
to hydraulic mining or navigable streams is separated
by a district cleavage from the rule with reference to non

navigable running streams. Judge Field, always the friend
of mining, in a decision of the Supreme Court of the
United States (Atchison vs. Peterson, 20 Wallace, 507), upheld
the refusal of the lower court (in Montana) to issue a
writ of injunction where a prior appropriator of water claimed
his water was injured by tailings from a hydraulic mine,
pointed out the extreme reluctance that should guide courts
in the issuance of this writ, and held that the question
whether, upon a petition or bill, asserting the prior rights of
the first appropriator have been invaded, a court of equity
will interfere to restrain the acts of the party complained of,
will depend on the character and extent of the injury alleged,
whether it be irremediable in its nature, whether an action at
law would afford adequate remedy, whether the parties are
able to respond for the damages resulting from the injury, and
other considerations.
Nor is the adjoining mine owner permitted to become a
dog in the manger. The Supreme Court of this State on
March 18, 1896, rendering its decision in the case of Jacob
vs. Day, (in Cal. 571), held that the use of water for the
purpose of carrying off the tailings, and the construction of
a ditch to aid therein, are as essential to the successful conduct
of hydraulic mining, as is the first use to which the water
is put in washing down the natural bank; and that the title
to an adjoining mine passes under patent from the United
States subject to the easement of the right of way for a ditch
used, in accordance with focal mining customs, as a tailrace
from a hydraulic mine across the patented ground prior to
the patent under the provisions of sections 2339 and 2340
of the Revised Statutes of the United States. That the easement
for the tailrace of a hydraulic mine is not an easement
for drainage within the meaning of section 2338 of the Revised
Statutes of the United States, excluding easements for
drainage from the purview of the act of Congress; but it is
a right to the use of water for mining purposes and for the
construction of ditches for such purposes within the meaning
of sections 2339 and 2340 of said statutes. That an ease

ment must be used in such a manner as to impose as slight
a burden and damage as possible; but where a tailrace of a
hydraulic mine is an easement upon patented mining ground,
the fact that the running of tailings through the tailrace in
the ordinary course of mining caused a small portion of the
ground alongside of the ditch to cave down and wash away,
and caused the tailrace to cut farther into the bedrock, but
without material and appreciable injury to the plaintiff, does
not entitle the owner of the patented ground to an injunction.
While the. law of mining has through enactment and decision
gradually become settled, until there remains but comparatively
few doubtful points to be still construed, and but
few amendments to better the legislation we already have,
mining itself in the great ledges of California is little more
than begun. It is true that, except where some ancient
river channel is occasionally found, the days of the placers
are passing with the romance and the glamour of
the Pioneers. Quartz mining is destined, however, to
be a permanent industry of the State. New men,
new methods, and increased facilities for operations have
made of it a recognized business instead of a gamble. The
history of the law of mining in the future will more and more
partake of the general features incident to litigation growing
out of other industries, and the element of uncertainty will
be confined more and more to that element of uncertainty
found in all litigation; that which is produced by the shifting
sands of evidence,
-JOHN F. DAVIS.
Jackson, Cal., Dec. 9, 1901

AG-GEL ESSENTIAL SOLUTIONS BROCHURE

CALIFORNIA - EPA DELISTING IRON MOUNTAIN MINE!

"the revised PHG of 300 g/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." Rick Sugarek, EPA project manager for Iron Mountain Mine Superfund cleanup, 2008 5 year review.

CALIFORNIA - COPPER, CADMIUM, AND ZINC; QAPP Information: QA Info Missing; Not one biota, not one iota; No further evidence required to facially apparent facts

05/01/ 1986 P R C Environmental Management, Inc. Environmental Protection Agency - Office of Waste Programs Enforcement Endangerment assessment draft final rpt, w/TL to T Mix fr T Brisbin 51189

12/15/2000 C H 2 M Hill Environmental Protection Agency - Region 6FSP, QAPP, Health & Safety Plan for surface-water sampling 103636

03/17/1997 Charles Alpers / US Geological Survey Richard Sugarek / Environmental Protection Agency - Region 9Ltr: Transmits QAPP, draft workplan, & draft FSP, w/attchs

08/01/2001C H 2 M HillEnvironmental Protection Agency - Region 9Amended QAPP for air & surface-water sampling (QAPP & amendment 1)165834

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
)

The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” (James Madison, Federalist 45 )

Water: Initiation of Risk Assessments for Chemicals in Drinking Water [07/09/10]

Comparison of MCLs and PHGs for Regulated Contaminants in Drinking Water

Last Update:  July 24, 2010 This page compares maximum contaminant levels (MCLs) and public health goals (PHGs). 

Draft Clean Water Strategy is released

Posted by the EPA on August 20th, 2010 - 11:58 AM

 

Local Governments

Several local governments have developed local wetlands management plans. See the links for the following communities.

 

Iron Mountain Mine , Iron Mountain , Iron Mountain [town] , West Shasta Copper - Zinc District , Shasta Co. , California , USA

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.

Old Man ore body, Iron Mountain Mine , Iron Mountain , Iron Mountain [town] , West Shasta Copper - Zinc District , Shasta Co. , California , USA

 

THE FOLLOWING INFORMATION IS FROM THE USGS WEBSITE (FORMERLY THE U.S. BUREAU OF MINES RECORDS)

Iron Mountain Mine, Ltd.

Producer in Shasta county in California, United States with commodity Iron

Ownership information

Type Owner Year
Owner-Operator Iron Mountain Mine, Ltd. 1989
Subject category Reference
Deposit CALIF. DIV. MINES AND GEOL. SPECIAL PUBL. 103, 1990.
Deposit IRON MINED USED IN CEMENT
Type Date Name Affiliation Comment
  23-NOV-1994   U.S. Bureau of Mines

Mineral Resources > Online Spatial Data > Mineral Resource Data System (MRDS)

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.

 

EMERGENCY PLANNING, COMMUNITY RIGHT-TO-KNOW, POLLUTION PREVENTION

 

[$ 542] 5. Effect of Possession by Tenant. Within the rule that actual possession of part of a tract of land under color of title gives constructive possession to the extent of the boundaries designated in the conveyance, the possession of part of a tract of land by a tenant of the holder of color of title, who has been put into possession under a lease which does not restrict the possession to any definite part of the tract, will give the lessor constructive posses sion coextensive with the boundaries of his deed,* 4 since the possession of the tenant inures to the benefit of the lessor; 35 and it is not material that only a small part of the land is actually occupied. 38 It has also been held in a number of decisions that even though the lease restricts the possession of the tenant to a definite portion of the tract, his possession will, by construction, be extended to the boundaries of the deed under which the lessor claims, 37 provided of course no one else is in actual possession of the balance of the tract. 38 And in other decisions, where the opinion does not show definitely whether the lease contained such a restriction, the rule is broadly otherwise expressed, if one claiming under an assurance of title defining boundaries places a tenant in possession without limiting him to any definite part, the tenant's possession will extend to the landlord's boundaries, although the land actually occupied is but a small part of the whole Bell v. North American Coal, etc Co., 155 Fed. 712, 84 CCA 60.

Possession by one's tenant is his own possession. State v. Harmon, 57 W. Va. 447, 50 SK 828

City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999) (upholding award of $1.45 million for the temporary taking of 37.5 acres of oceanfront property); Loveladies Harbor, Inc. v. United States , 28 F.3d 1171 (Fed. Cir. 1994) (upholding $2.6 million damage award for wetlands takings); Whitney Benefits, Inc. v. United States , 926 F.2d 1169 (Fed. Cir. 1991) (awarding $60 million, plus interest, for taking of coal deposit); Cooley v. United States , 46 Fed. Cl. 538 (2000) (awarding $2,065,200.42, plus interest, for taking of thirty-three acres); Fla. Rock Indus., Inc. v. United States , 45 Fed. Cl. 21 (1999) (awarding $752,444, plus interest, from the date of taking); E. Minerals Int'l., Inc. v. United States , 39 Fed. Cl. 621 (1997) (awarding $19.6 million for loss of leasehold interest in coal deposit), judgment rev'd, appeal dismissed sub nom. Wyatt v. United States , 271 F.3d 1090 (Fed. Cir. 2001), cert. denied sub nom. E. Minerals Int'l, Inc. v. United States, 122 S. Ct. 1960 (2002). - Lode law of 1866 - LAW OF MAY 10, 1872.

"Sec. 2319. All valuable mineral deposits in lands belonging
to the United States, both surveyed and unsurveyed, are
hereby declared to be free and open to exploration and purchase,
and the lands in which they are found to occupation
and purchase, by citizens of the United States and those who
have declared their intention to become such, under regulations
prescribed by law, and according to the local customs
or rules of miners in the several mining districts, so far as
the same are applicable and not inconsistent with the laws of
the United States.

 

October 23, 2010

Judge Maynard specific plan to stop, defund EPA

Rahall isn't doing anything about it. He hasn't done anything about it other than just saying the EPA is just doing their job. That's what he told the Beckley Register-Herald. That's what he said. We've got the clip. Call it what you want, but it's tyranny.”

“It is stunningly cruel for the government to do what it is doing to our people.

Maynard said the EPA has “no business” regulating carbon emissions and water quality.

“We need to change the legislation that gave them the power,” Maynard said. “Take it away from them. We need new leadership from the  EPA.”

Maynard said the EPA, and the Obama administration, are wrong in trying to eliminate mountaintop mining.
Maynard said the $787 billion federal stimulus bill passed by Congress was a failure.

“That is money that has been totally squandered and wasted and misspent,” Maynard said. “What has been done with it is shameful. It's really a trillion dollar package now because we've been paying interest on some of it. A lot of that money — even though my opponent denies it — created 6,000 jobs in China.”

Maynard said there were no appropriate checks and balances on the stimulus dollars.

Watchdog: Funny math used on AIG bailout

By Jennifer Liberto, senior writer October 25, 2010: 3:51 PM ET

WASHINGTON (CNNMoney.com) -- The Treasury Department made an overly rosy prediction of taxpayer losses on the AIG bailout by changing its accounting practices, the special investigator for the federal bailouts said in a report released Monday.

Special Inspector General Neil Barofsky's latest report to Congress also heaps new criticism on Treasury for taking credit for failed attempts to help homeowners with mortgages exceeding their home's value to secure modified loans.

Reporting directly to Congress, Barofsky reviews all the programs that came about due to the original $700 billion Troubled Asset Relief Program (TARP) that Congress passed during the height of the financial crisis in October 2008.

While Treasury can no longer spend any new money, due to the fund's expired lifespan of two years, Barofsky reported that $178.4 billion in bailout funds remain outstanding. In addition, Treasury has the ability to "obligate" another $80 billion that can still be spent under existing TARP programs.

"In short, it is still far too early to write TARP's obituary," the report concluded.

However, critics of the program seized on the report as further evidence of a failed policy.

"This report calls into significant question the very credibility and competence of the Treasury Department," Darrell Issa, a Republican congressman from California who is the ranking member of the House Oversight Committee, said in a statement.

Earlier this month, Treasury reported that its new plan to extricate the government from American International Group ( AIG , Fortune 500 ) would result in losses to taxpayers of around $5 billion, much less than the $45 billion that the agency reported in March.

While all the loss estimates were much lower than the $180 billion that government had said it might be willing to commit to propping up the insurer, Barofsky questioned Treasury's current accounting methodology on losses.

The report basically said Treasury's $5 billion loss estimate rests on market prices for common shares as of Oct. 1, ignoring "volatility in AIG's stock price." The estimate diverged from Treasury's past calculations that took other "data points" because "no comparable preferred shares exist," Treasury had previously said.

"This conduct has left Treasury vulnerable to charges that it has manipulated its methodology for calculating losses," the report said.

However, Treasury stood behind its calculation, saying it hasn't changed its methodology putting a value on taxpayer losses on the AIG bailout. Treasury said that when it comes to reporting to the auditors, it won't use the same technique, because its exit plan and the exchange of shares won't happen until 2011.

"SigTARP finds Treasury's contention that there was no change in its methodology to be unconvincing," the report said.

Issa said the most disturbing finding of the report is that large banks that pose a threat to the economy continue grow larger and enjoy tacit government support.

"The government has rewarded bad behavior while failing to do enough to deter that behavior from ever happening again," he said.

Help for homeowners

The inspector general's report also said Treasury took too much credit for helping homeowners who did not ultimately benefit from Treasury's Home Affordable Modification Program.

Treasury has said several times that its mortgage modification program has "helped" more than 1.3 million homeowners by reducing their monthly mortgage payments, calling each of these a "success," the report said.

However, Barofsky's team took issue with the level of success, saying more than 700,000 of the modifications ultimately failed and another 173,000 remained in limbo.

"They say for example that they've helped more than 1.3 million people through mortgage modifications, but more than half of those have failed," Barofsky said in an interview with CNNMoney.com's Poppy Harlow. "Then, they go and say, ' Well, each one of those had a significant benefit for the homeowner.' And that's just not true."

Treasury officials could not immediately be reached for comment after the release of the report. 

AIG Posts Whopper Of A Loss But The Stock Barely Budges
Forbes
AIG ( AIG - news - people ) said its adjusted loss totaled $200 million, or $1.47 per share. The company has been selling off assets to help repay the $180 ...
See all stories on this topic »

 

AIG leader to stay on in spite of cancer
Financial Times
AIG's chief executive pledged to remain at his post until the US government sells its 92 per cent stake in the insurer in spite of a cancer diagnosis that ...
See all stories on this topic »
Don't Clear the IPO Runway Yet for AIG's Aviation-Leasing Business
Wall Street Journal (blog)
AIG has a little IPO momentum after its AIA offering. The taxpayers own AIG , and anything that can plow cash into the Treasury is a good thing. ...
See all stories on this topic »
Earnings roundup: AIG posts $2.5B loss, Harrah's Entertainment loss narrows
CanadianBusiness.com
— American International Group Inc., one of the largest recipients of government aid during the financial crisis, reported a $2.4 billion loss due to ...
See all stories on this topic »
AIG Reports 3Q Earnings
Morningstar.com
Many of the charges were taken in advance of events such as the sale of American General Finance, AIG Star Life, and AIG Edison Life, which will all occur ...
See all stories on this topic »

 

AIG Posts $2.4 Billion Loss In 3Q
By The Huffington Post News Editors
NEW YORK — Insurance giant AIG is reporting a $2.4 billion loss for the third quarter, dragged down by hefty charges tied to selling off some assets. But American International Group Inc., which is 80 percent-owned by the US ...
The Huffington Post | Full News Feed - http://www.huffingtonpost.com/thenewswire/
Market Updates: The Washington Post (NYSE:WPO), AIG (NYSE: AIG ...
By Guest Contributor
Breaking new for The Washington Post (NYSE:WPO), AIG (NYSE: AIG ), Investment Group (NYSE:FIG), Southwest Airlines (NYSE:LUV) ~ Jutia Group.
Jutia Group - http://jutiagroup.com/
AIG's Billions in Losses Overshadows Repayment Plans ( AIG ) - 24/7 ...
By Administrator
American International Group Inc. (NYSE: AIG ) has some wide losses being reported, even if comparing these to any real estimates will be a challenging feat. Most headlines are keying on a $2.4 billion loss due to charges after unit ...
24/7 Wall St. - http://247wallst.com/
AIG reports $2.4 billion third quarter loss as it seeks to repay ...
Business: AIG reports $2.4 billion third quarter loss as it seeks to repay feds | seeks, loss, third, new, york, quarter, aig , repay, billion, reports.
Colorado Springs Gazette - News... - http://www.gazette.com/share/profiles/?slid=f17377cf-6bcc-1784-3987-47e595f5a74a&plckPersonaPage=BlogViewPost&plckUserId=f17377cf-6bcc-1784-3987-47e595f5a74a&plckPostId=Blog%3Af17377cf-6bcc-1784-3987-47e595f5a74aPost%3Af75df97b-5dc9-4e4b-a9e0-486795eb84c7&plckController=PersonaBlog&plckScript=personaScript&plckElementId=personaDest
American International Group Inc. ( AIG ) Reports Q3 Results | Epic ...
By Ed Liston
American International Group Inc. (NYSE: AIG ) shares are down after the insurer reported its third-quarter financial results. Shares were down 0.40% to $$.56,
Epic Stock Picks - http://www.epicstockpicks.com/

 

Minerals Recommended daily intake Over dosage
Boron < 20 mg No information found
Calcium 1000 mg Doses larger than 1500 mg may cause stomach problems for sensitive individuals
Chlorine

3400 mg
(in chloride form)

No information found
Chromium 120 µg Doses larger than 200 µg are toxic and may cause concentration problems and fainting
Copper 2 mg As little as 10 mg of copper can have a toxic effect
Fluorine 3,5 mg No information found
Iodine 150 µg No information found
Iron 15 mg Doses larger than 20 mg may cause stomach upset, constipation and blackened stools
Magnesium 350 mg Doses larger than 400 mg may cause stomach problems and diarrhoea
Manganese 5 mg Excess manganese may hinder iron adsorption
Molybdenum 75 µg Doses larger than 200 µg may cause kidney problems and copper deficiencies
Nickel < 1 mg Products containing nickel may cause skin rash in case of allergies
Phosphorus 1000 mg Contradiction: the FDA states that doses larger than 250 mg may cause stomach problems for sensitive individuals
Potassium 3500 mg Large doses may cause stomach upsets, intestinal problems or heart rhythm disorder
Selenium 35 µg Doses larger than 200 µg can be toxic
Sodium 2400 mg No information found
Vanadium < 1,8 mg No information found
Zinc 15 mg Doses larger than 25 mg may cause anaemia and copper deficiency

Notes

Saturday, November 6, 2010

Sanofi-Aventis Settles

Here is another addition to the parade of multi-million dollar legal settlements by health care corporations. As reported by the AP:


Drugmaker Sanofi-Aventis has agreed to pay nearly $100 million to settle allegations it cheated Medicaid on the cost of nasal sprays.

The Justice Department said Aventis Pharmaceutical Inc., a wholly owned subsidiary of Sanofi-Aventis U.S. LLC, has agreed to pay the government $95.5 million to settle the charges.

The government charged that between 1995 and 2000, Aventis and its corporate predecessors did not offer Medicaid the best prices for the sprays Azmacort, Nasacort and Nasacort AQ.

In reaching the settlement, Sanofi-Aventis U.S. did not admit any wrongdoing. The company, based in Bridgewater, N.J., issued a statement saying it believed the old pricing system was legal.

Under the law, the company was required to tell Medicaid the lowest price that it charged companies for those products, and offer state Medicaid programs rebates based on those prices.

Prosecutors contend that in order to dodge that obligation, Aventis entered into a private deal with the HMO Kaiser Permanente that repackaged Aventis drugs under a new label, allowing them to overcharge Medicaid programs for the same product.

 

California Choice of Law, Jurisdiction & Venue Clauses

THE IDEAL LODE

TAKING, UNJUST - When the government acquires private property and fails to compensate an owner fairly. A taking can occur even without the actual physical seizure of property, such as when a government regulation has substantially devalued a property.

An otherwise valid exercise of the police power constitutes a taking for which compensation is due if the owner suffers a permanent, physical occupation of the property. Yee v. Escondido, 112 S. Ct. 1522 (1992); Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2900 (1992); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427-28 (1982); Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1871); Ferguson, 852 P.2d at 207. Physical invasions have been found where the government interferes with the owner's "right to exclude." See, e.g., Kaiser Aetna v. United States, 444 U.S. 164 (1979) (public access to pond); Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) (public easement to beach); Loretto, 458 U.S. at 427-28 (installation of cable); Pumpelly, 80 U.S. at 166 (flooding); Hawkins v. City of La Grande, 843 P.2d 400 (Or. 1992) (one-time flooding).

However, the state may enter property to enforce a valid land use regulation and destroy the offending property. This does not amount to a physical occupation even where the government's activity has a permanent effect. See Miller v. Schoene, 276 U.S. 272, 278 (1928) (permitting state entomologist to enter property and destroy diseased trees without affecting a taking); see also Bowditch v. Boston, 101 U.S. 16, 18-19 (1880) (denying compensation to owners whose houses were destroyed to prevent spread of fire); Shaffer, 576 P.2d at 824-25 (finding that city may enter to demolish substandard vacant building without compensating owner). "[T]he government affects a physical taking only when it requires the land owner to submit to the physical occupation of his land." Ferguson, 852 P.2d at 207.

"There is, of course, no federal Constitutional right to be free from changes in the land use laws." Lakeview Dev. Corp. v. City of South Lake Tahoe, 915 F.2d 1290 (9th Cir. 1990), cert. denied, 501 U.S. 1251 (1991); see also William C. Haas & Co. v. City & County of San Francisco, 605 F.2d 1117 (9th Cir. 1979), cert. denied, 445 U.S. 928 (1980). To establish a violation of their right to substantive due process, the Dodds must prove that the County's actions were "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926); see also Sinaloa Lake, 882 F.2d at 1407. A substantive due process claim requires proof that the interference with property rights was irrational and arbitrary. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976). Federal judicial interference with a local government zoning decision is proper only where the government body could have no legitimate reason for its decision. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981); Herrington, 834 F.2d at 1498 n. 7. There is no denial of substantive due process if the question as to whether the government acted arbitrarily or capriciously is "at least debatable." Clover Leaf Creamery Co., 449 U.S. at 469.

According to the Supreme Court, an unconstitutional taking consists of two components: taking of property and subsequent denial of just compensation. If a property owner receives just compensation through the process the government provides, the property owner does not have a taking claim. Id. at 194-95. Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985).

Inverse condemnation suits do not provide only the just compensation required under state law. Rather, such suits are a method of obtaining the just compensation required by the Fifth and Fourteenth Amendments. "A landowner is entitled to bring an action in inverse condemnation as a result of the self-executing character of the constitutional provision with respect to compensation." First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315 (1987). "Claims for just compensation are grounded in the Constitution itself." Id. The state procedure Williamson County references is the procedure necessary to raise a federal taking claim in state court. Thus, under Williamson County, a taking claimant must litigate the federal constitutional claim through the processes the state provides.

The Supreme Court compared the process for making a claim against state or local governments to the process for making a claim against the federal government. A taking claim against the federal government is "premature until the property owner has availed itself of the process provided by the Tucker Act, 28 U.S.C. S 1491." Williamson County, 473 U.S. at 195 (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-1020 (1984)). The Tucker Act grants the U.S. Claims Court " `jurisdiction to render judgment upon any claim against the United States founded . . . upon the Constitution.' " Monsanto, 467 U.S. at 1017 (citing 28 U.S.C. S 1491). Thus, a Tucker Act taking claim is a claim for the just compensation required by the Fifth Amendment. The Supreme Court indicated that the Tucker Act procedure is analogous to the state proceedings claimants must follow to obtain just compensation from state and local governments. Williamson County, 473 U.S. at 195. Therefore, claimants following state procedures, like those utilizing the procedure established under the Tucker Act, should raise the federal just compensation requirement.

The decision in Williamson County, 473 U.S. 172 (1985), established two distinct requirements for taking claims under the rubric of ripeness:

First, "the government entity charged with implementing the regulations [must have] reached a final decision regarding the application of the regulations to the property at issue." 473 U.S. at 186.

Second, plaintiffs must have sought "compensation through the procedures provided by the State for obtaining such compensation." 473 U.S. at 195.

Both the final decision and compensation elements must be ripe before the claim is justiciable.

The final decision element is well-developed. Beginning with Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978), Agins v. City of Tiburon, 447 U.S. 255 (1980), and Hodel v. Virginia Surface Min. & Reclamation Ass'n. Inc., 452 U.S. 264 (1981), the Court has declined to rule on taking claims when it believed the property owner had not received a final and definitive decision from a land use regulatory body on development of the property at issue. In Williamson County, the taking claim was unripe because there remained the "potential for . . . administrative solutions." 473 U.S. at 187 (landowner failed to seek variances that could have allowed development).

In applying the final decision requirement, we have emphasized that local decision-makers must be given the opportunity to review at least one reasonable development proposal before we will consider ripe an as-applied challenge to a land use regulation. See, e.g., Southern Pacific Transp. Co. v. City of Los Angeles, 922 F.2d 498, 503 (9th Cir. 1990), cert. denied, 502 U.S. 943 (1991); Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454 (9th Cir.), modified, 830 F.2d 968 (1987), cert. denied, 484 U.S. 1043 (1988). Finality also requires the local government to determine the type and intensity of development that land use regulations will allow on the subject property; this determination helps the court evaluate whether regulation of the subject property is excessive by identifying the extent of the regulation. See Herrington v. County of Sonoma, 857 F.2d at 570; Lai v. City and County of Honolulu, 841 F.2d 301, 303 (9th Cir.), cert. denied, 488 U.S. 994 (1988). Thus, a landowner may need to submit modified development proposals that satisfy the local government's objections to the development as initially proposed. Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1501 (9th Cir. 1990); MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 351-53 (1986).

Once the appropriate state agency reaches a final decision, the second ripeness requirement of Williamson County, the compensation element, is triggered. A federal court lacks jurisdiction to consider an as-applied regulatory taking claim until a determination is reached that "just compensation" has been denied by the state: [B]ecause the Fifth Amendment proscribes taking without just compensation, no constitutional violation occurs until just compensation has been denied. The nature of the constitutional right therefore requires that a property owner utilize procedures for obtaining compensation before bringing a Section 1983 action. 473 U.S. at 194 n. 13 (emphasis added).

In Williamson County, the Court concluded that Hamilton Bank's taking claim was not ripe because the Bank failed to utilize available state procedures: Under Tennessee law, a property owner may bring an inverse condemnation action to obtain just compensation for an alleged taking of property under certain circumstances . . . [U]ntil it has utilized that procedure, its taking claim is premature. Id. at 196-97. See also Jama Const. v. City of Los Angeles, 938 F.2d 1045, 1047-48 (9th Cir. 1991) (Dismissed as unripe where plaintiff "did not seek compensation through California procedures before bringing its federal action."), cert. denied, 503 U.S. 919 (1992); Bateson v. Geisse, 857 F.2d 1300, 1306 (9th Cir. 1988) (Because Montana recognizes inverse condemnation under the State Constitution, plaintiff must "pursue [that claim] before he can state a [federal ] taking claim.").

[I]f a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation. 473 U.S. at 195.

The central concern of ripeness is whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all. 13A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure S 3532 at 126 (citing Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 580 (1985)). If an issue can be illuminated by the development of a better factual record, a challenge may be unripe. See Pacific Legal Found. v. State Energy Resources Conservation and Dev. Comm'n, 659 F.2d 903, 915 (9th Cir. 1981), aff'd on other grounds, 461 U.S. 190 (1983); Hoehne, 870 F.2d at 532. The Fifth Amendment action is not more "developed" or "ripened " through presentation of the ultimate issue -- the failure of a state to provide adequate compensation for a taking -- to the state court. Indeed, such a requirement would not ripen the claim, rather it would extinguish the claim. See Palomar Mobilehome Park v. City of San Marcos, 989 F.2d 362 (9th Cir. 1993). Declining to hear a case on ripeness grounds is appropriate in situations where there is a reasonable prospect that the state courts may adjust state law to avoid or alter the constitutional question. 13A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure S 3532.5 at 126. But where deference rests instead "on the prospect that the state courts may entertain and decide the constitutional question, the issue of comity should be addressed directly without reliance on ripeness." Id.

The case law is clear that with the exception of federal habeas corpus review of state convictions under 28 U.S.C. S 2254, the determination of federal constitutional questions in state court systems may not be reviewed or repeated in the federal systems. The Court in Allen v. McCurry, 449 U.S. 90, 94, 104 (1980) said that"[t]he federal courts have traditionally adhered to the related doctrines of res judicata and collateral estoppel," excepting only "a federal writ of habeas corpus, the purpose of which is not to redress civil injury but to release the applicant from unlawful physical confinement."

[I]t has been established at least since Jacobs v. United States, 290 U.S. 13 (1933), that claims for just compensation are grounded in the Constitution itself. [The claim] rested upon the Fifth Amendment. Statutory recognition [by the state] was not necessary. [I]n the event of a taking, the compensation remedy is required by the Constitution. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315-16 (1987) (citations omitted).

Courts routinely have held that state procedures are considered inadequate only when state law provides no postdeprivation remedy for a taking. See Austin, 840 F.2d at 681 (Hawaiian courts and legislature had neither accepted nor rejected inverse condemnation action under Article I, Section 20 of the Hawaiian Constitution); Levald Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir. 1993) ("the unavailability of state remedies is the functional equivalent of the denial of just compensation"), cert. denied, 114 S. Ct. 924 (1994); see also New Port Largo, Inc. v. Monroe County, 985 F.2d 1488, 1493-94 (11th Cir.) ("Florida law . . . provided no post-deprivation remedy."), cert. denied, 114 S. Ct. 439 (1993).

Oct 28

THE IMPORTANCE OF TERRITORIAL JURISDICTION

Filed Under Articles of Confederation , CONSTITUTION , LEARNING THE LAW , Northwest Ordinance , ORGANIC LAWS

The powers of all governments are almost universally conceded to be: legislative, executive and judicial and law is either written or unwritten law, so in the United States of America, where government is without equivocation believed to be tripartite, written law controls government. The surprise is that written law is limited to the territory owned by the United States of America, which is a simple definition of territorial jurisdiction.

The Constitution of September 17, 1787 and the Constitution of the United States are the two Constitutions that control the government of the United States, which is composed of territory belonging to the United States of America. The oft forgotten and erroneously reported as a dead Constitution, the Articles of Confederation of November 15, 1777, still guides and controls the federal government and Senate of the United States of America.

A word search of the Organic Laws of the United States of America for a clear connection of territorial jurisdiction with anyone of the three government powers reveals the obvious difference between the Articles of Confederation of November 15, 1777 and the Constitution of September 17, 1787. The subject of territorial jurisdiction in the Articles of Confederation of November 15, 1777 is purely a matter of the sovereign States involved in territorial disputes. This is consistent with the Articles of Confederation's purpose as an establishment of a defensive Union, without powers other than those expressly delegated. The Constitution of September 17, 1787 would, when ratified by nine States of the first Union create another Union of States composed of States primarily owned by the United States of America.

Both the kind of government and the territorial jurisdiction of a Government of the United States headed by a President of the United States is revealed in the Northwest Ordinance of July 13, 1787, which provides a temporary government for the federal district then known as the Northwest Territory. The temporary government for the Northwest Territory federal district became the permanent government for the District of Columbia and other territory and other property belonging to the United States of America, when nine States of the first Union ratified the Constitution of September 17, 1787. Ratification of this Constitution made the temporary territorial jurisdiction of the Northwest Ordinance of July 13, 1787 permanent.

Does the Constitution of September 17, 1787 expand the territorial jurisdiction of the permanent form of government proposed for the Northwest Territory? The answer has to be an unqualified no. Article IV Section 3 Clause 2 of that Constitution secures the proprietary power over “Territory or other Property belonging to the United States” meaning, of course, the United States of America. Territorial jurisdiction is rooted in the proprietary power of the Congress of the United States under the authority of the Articles of Confederation. The Constitution of September 17, 1787 only confers legislative power when ratified by nine States. Proprietary power can only be transferred by the conveyance of the territory or property.

What's the importance of knowing the difference between the territorial jurisdiction of the Articles of Confederation of November 15, 1777 and the Article IV Section 3 Clause 2 territorial jurisdiction of the Constitution of September 17, 1787? The Constitution of September 17, 1787 allows the States of the first and second Unions to draw the lines of a Congressional district even if there's no territory owned by the United States of America within the territory making up the district. Territory owned by the United States of America doesn't get the Representative a vote in the House of Representatives. Only Representatives with districts made up of territory not owned by the United States of America can vote on federal taxation legislation on settlers and inhabitants of territory owned by and ceded to the United States of America.

 

§ 409. b. New assignment.—Yet in many actions tha plaintiff, who has alleged in his declaration a general wrong, may in his replication, after an evasive plea by the defendant, reduce that them in the defamatory sense imputed by the innuendo, or in any defamatory or actionable sense which the words themselves imported, asserted that the occasion was privileged, and also denied that the words were spoken of the plaintiff in the way of his profession or trade, whenever they were alleged to have been so spoken. But now this compendious mode of pleading is abolished. "Not Guilty" can no longer be pleaded in a civil action. The defendant must deal specifically with every allegation of which he docs not admit the truth.

(iv) Demurrers were abolished. It is true that either party is still allowed to place on the record an objection in point of law, which is very similar to the former demurrer. But there is this important difference. The party demurring could formerly insist on having his demurrer separately argued, which caused delay. But now such points of law are argued at the trial of the action; it is only by consent of the parties, or by order of the court or a judge, that the party objecting can have the point set down for argument and disposed of before the trial. And, as a rule, such an order will only be made where the decision of the point of law will practically render any trial of the action unnecessary.

(v) Pleas in abatement were abolished. If cither party desires to add or strike out a party, he must apply by summons (see Kendall v. Hamilton, [1879] 4 App. Cas. 504; Pilley v. Robinson, [1887] 20 Q. B. D. 155; Wilson v. Balcarres Brook Steamship Co., [1893] 1 Q. B. 422). No cause or matter now "shall be defeated by reason of the misjoinder or nonjoinder of parties."

(vi) Equitable relief is now granted, and equitable claims and defenses are now recognized, in all actions in the high court of justice.

(vii) Payment into court was for the first time allowed generally in all actions.

(viii) The right of setoff was preserved unchanged; but a very large power was given to a defendant to counterclaim. He can raise any kind of crossclaim against the plaintiff, and in some cases even against the plaintiff with others, subject only to the power of a master or judge to order the claim

fraud."—(1) The word "fraud," as used in the statute providing that possession, to be the foundation of prescription, cannot originate in fraud, the fraud meant is actual fraud—a moral fraud, a wrongful act, and not a legal act which the law denominates a fraud regardless of the bona fides of the parties. Dixon v. Patterson, 135 Ga. 183, 69 SE 21: Floyd v. Ricketson, 129 Ga. 668, 59 SE 909; Bower v. Cohen, 126 Ga. 35, 54 SE 918: Arnold v. Limeburger, 122 Ga. 72, 49 SE 812; Street v. Collier, 118 Ga. 470, 45 SE 294; Connell v. Culpepper, 111 Ga. 805, 35 SE 667; Lee v. Ogden, 83 Ga. 325, 10 SE 349 [disappr Hunt v. Dunn, 74 Ga. 120]; Ware v. Barlow, 81 Ga. 1, 6 SE 465; Wingfleld v. Virgin, 51 Ga. 139. (2) "To defeat prescriptive title the fraud of the party claiming thereunder must be such as to charge his conscience. He must be cognizant of the fraud, not by constructive, but by actual notice." Shingler v. Bailey, 135 Ga. 666, 668, 70 SE 563 (per Atkinson, J.). (3) An honest mistake of law as to the effect of the writing cannot of course, amount to a moral fraud as against the true owner. Bower v. Cohen, supra.

98. Stark v. Starr, 22 F. Cas. No. 13,307, 1 Sawy. 15.

[a] Good faith, as contemplated by the law of prescription, has relation to the actual existing state of the mind, whether so from Ignorance, skepticism, sophistry, delusion, or imbecility, and without regard to what it should be from good legal standards of law or reason. It is not necessary therefore that the person claiming prescription should have taken the instrument relied on as evidence of his title under such honest belief only as would be entertained by an ordinarily intelligent man that the paper would give him a good title. If such paper was in law color of title and was taken honestly and In good faith, the degree of intelligence with which this was done would be immaterial. It is the bona fides which is important and not the amount of knowledge or mental capacity constituting the basis thereof. Lee v.

"Ordinary intelligence might, upon bare inspection know that an apparent title was worthless; and if the bona fides of the holding were to be tested by that standard, many cases would doubtless occur where a person of a lower order of Intelligence, in his ignorance of law, would learn with surprise that he had occupied the land and held his color of title in bad faith, while he believed in fact that it was genuine and sufficient."

[b] Bad faith cannot be Imputed to a claimant (1) by reason of failure, for several years after execution, to record the deed which is claimed to give color of title, there being no statute requiring it (Rawson v. Fox, 65 111. 200); or (2) because the deed described the land conveyed as situated in a disputed territory (Cornelius v. Giberson, 25 N. J. L. 1); or (3) because the claimant, a mortgagee who purchased at foreclosure sale, filed an insufficient affidavit as a basis for service by publication (Reedy v. Camfield, 159 111. 254, 42 NE 833); or (4) because the claimant, a purchaser at a tax sale, failed to comply with the statutory requirements as to notice governing the execution of tax deeds (Duck Island Club v. Bexstead, 174 111. 435, 51 NE 831; Dalton v. Lucas, 63 111. 337. And see also Whitney v. Stevens, 89 111. 53): or (5) because the deed under which the claimant holds was the result of a sale by a trustee not made in strict conformity to law (Brady v. Walters, 55 Ga. 25); or (6) because It appeared from the recitals in the deed that the property was sold at a day later than that fixed by statute (Hardin v. Crate, 60 111. 215); or (7) because the grantee in a tax deed failed to give notice of his application therefor, rendering the deed ineffectual to establish paramount title (Jackson v. Larson, 24 Colo. A. 548, 136 P 81); or (8) because at the time land was purchased from a widow something was said as to the possibility of her deceased husband's children having some interest in the land (Weng-er v. Thompson, 128 Iowa 750, 105 NW 333)-; or (9) because the contract of purchase under which claimant held was a verbal one, and the decree enforcing It reversible for error, the grantee not being bound to know the legal effect of a verbal contract for land or that a decree enforcing It was erroneous (Sexson v. Barker, 172 111. 361, 50 NE 109 [crit and not foil Bowman v. Wettig, 39 111. 416]); or (10) because the deed under which claimant holds shows on its face that the grantor is a nonresident alien incapable of inheriting (Hughes v. Wyatt. 146 Iowa 392, 125 NW 334); or (11) where the claimant, being aware of an outstanding tax title, goes to the holder, shows him his deed, and declares his purpose to be perfectly fair with him, and Is inTermed by the latter that he has no knowledge of possessing any Interest n the property, and that, if he ascertains that he does, he will Inform the purchaser, but never does so (Clark v. Sexton. 122 Iowa 310, 98 NW127).


FEDERAL SUPREME COURT RECOGNITION.


The Supreme Court of the United States gave full recognition to the binding force of the local rules, regulations, usages and customs before the sanction of federal statutory enactment, and to the doctrine that they constitute the American common law of mines.

Sparrow vs. Strong, 3 Wall. 97, decided in 1865.
Jennison vs. Kirk, 98 U. S. 453, decided in 1878.

DECISIONS OF THE U.S. SUPREME COURT. 577

No.1 ACHISON v. PETERSON.

(reported IN 20 Wallace, 507.)

 

1  On the mineral lands of the public domain in the Pacific States and Territories, the doctrines of the common law, declaratory of the rights of riparian proprietors respectin the use of running waters, are inapplicable, or applicable only in a very limited extent, to the necessities of miners, and inadequate to their protection; their prior appropriation gives the better right to running waters to the extent, in quantity and quality, necessary for the uses to which the water is applied.

2  What diminution of quantity, or deterioration in quality, will constitute an invasion of the rights of the first appropriator will depend upon the special circumstances of each case; and in controversies between him and parties subsequently claiming the water, the question for determination is whether his use and enjoyment of the water to the extent of the original appropriation have been impaired by the acts of the other parties.

3  Whether, upon a petition or bill asserting that the prior rights of the first appropriator have been invaded, a court of equity will interfere to restrain the acts of the party complained of, will depend upon the character and extent of the injury alleged, whether it be irremediable in its nature, whether an action at law would afford adequate remedy, whether the parties are able to respond for the damages resulting from the injury, and other considerations which ordinarily govern a court of equity in the exercise of its preventive process of injunction.

Mr. T.W. Arman, proprietor of Iron Mountain Mine, splashing in acid mine drainage; "the world's worst water"?

DECLARATIONS OF TED ARMAN

PARAMOUNT TITLE

As Justice Stone of the United States Supreme Court wrote in the 1930 case of  Collie v Ferguson :

"Events subsequent to the seizure do not give rise to liens against a vessel in custodia legis ."

 

Native American farmers settle with USDA for $760 million

By Spencer S. Hsu and Krissah Thompson Washington Post Staff Writers
Tuesday, October 19, 2010; 5:17 PM

The Obama administration announced a $760 million settlement Tuesday to resolve charges by thousands of Native American farmers and ranchers who say that for decades the Agriculture Department discriminated against them in loan programs.

The farmers have fought for 11 years and through three administrations to resolve the case.

"The settlement announced today will allow USDA and the Native American farmers involved in the lawsuit to move forward and focus on the future," Attorney General Eric H. Holder Jr. said in a statement.

The roughly 50-page agreement resolves a class-action lawsuit brought in 1999 by nearly 900 people, covering Department of Agriculture actions dating to 1981.

"This settlement marks a major turning point in the important relationship between Native Americans, our nation's first farmers, and the USDA," said lead plaintiffs' attorney Joseph M. Sellers, a partner at the Cohen Milstein Sellers & Toll law firm in Washington.

Under the agreement, the department would pay $680 million in damages and forgive $80 million of outstanding farm loan debt.

The federal government also agreed to create a Native American Farmer and Rancher Council to advise USDA, appoint a department ombudsman, provide more technical assistance to Native American borrowers and conduct a systematic review of farm loan program rules - all to improve access to farm aid programs.

Sellers credited the Obama administration with opening the door to talks after taking office and seeing "long-standing . . . and festering" problems in farm programs.

"With the entry of the new administration, we saw a decided change in the attitude of the government to this litigation," Sellers said. "Rather than kicking it down the road, they really seemed open to working with us."

The financial payments will not require approval by Congress but could be paid from a judgment fund maintained by the Justice Department.

"We have been waiting nearly three decades for this day to come," said plaintiff Marilyn Keepseagle, whose name along with that of her husband, George, leads the case. "This settlement will help thousands of Native Americans who are still farming and ranching."

A claims process will be publicized in rural and often remote Native American communities.

"Today's settlement can never undo wrongs that Native Americans may have experienced in past decades, but combined with the actions we at USDA are taking to address such wrongs, the settlement will provide some measure of relief to those alleging discrimination," Agriculture Secretary Tom Vilsack said. "The Obama administration is committed to closing the chapter on an unfortunate civil rights history at USDA and working to ensure our customers and employees are treated justly and equally."

Saturday, October 23, 2010

The EPA's Not so Benign "Nudging" in the Reorientation (or Re-education?) of Public School Students

Email This BlogThis! Share to Twitter Share to Facebook Share to Google Buzz

My curiosity was peaked when I read this snippet from The Columbia Daily Tribune about new educational facilities being built from EPA funding. I was curious in a previous post as to when and why the US State Department became involved in education issues; I now discovered an article telling how the EPA is funding two organizations to either build or update four area outdoor classrooms for four Columbia area schools.

I researched when the EPA became not only a regulatory agency, but when it started developing curriculum for schools. I found this site explaining the agency's role in education through yet another group, The National Environmental Education Foundation (NEEF) :

Chartered by Congress in 1990 to advance environmental knowledge and action.

The National Environmental Education Act of 1990 established the National Environmental Education Foundation as a complementary organization to the U.S. Environmental Protection Agency (EPA), extending its ability to foster environmental literacy in all segments of the American public as well as leveraging private funds that EPA, as a federal agency, could not access.

In the almost two decades since then, the annual appropriation we receive from the EPA's Office of Environmental Education has enabled us to tap millions more in private and other governmental funding. The strong relationship we've built with the EPA has allowed us to multiply our resources and deliver innovative education programs which encourage environmentally responsible behavior.


I think I got the answer to how/when the EPA became involved in education; now I ask the question, who is partnering with this foundation that our tax dollars support? What private funding can this agency access that the EPA cannot? There are numerous organizations listed on the site who partner with the NEEF, many that are familiar; the NEA, Toyota, National Arbor Day Society, American Academy of Pediatricians. Some may not be so familiar, and one in particular caught my curiosity; World Watch Institute.

On the site under the subheading "Transforming Cultures", I found these two paragraphs interesting:

Worldwatch Institute's Transforming Cultures project turns a critical eye to how we can shift today's consumer cultures toward cultures of sustainability. The key to this transformation will lie in harnessing institutions that play a central role in shaping society—such as the media, educational services, business, governments, traditions, and social movements—to instill this new cultural orientation.

The project also seeks to bring women into educational, economic, political and health equality with men. This will require the erosion of cultural norms that promote early and frequent childbearing and expanding women's capacity to choose when to bear children. Studies show that such advances slow and eventually end population growth, allowing for more sustainable development worldwide.

Gee. That sounds alot like Cass Sunstein's theory in " Nudge " doesn't it? Missouri Education Chris Nicastro based her proposal to Race to the Top on this theory; perhaps she is employing the current theory present throughout all the government entities; schools, the EPA, the Department of Education and the State Department. Here's an excerpt from the book's review:

Every day, we make decisions on topics ranging from personal investments to schools for our children to the meals we eat to the causes we champion. Unfortunately, we often choose poorly. The reason, the authors explain, is that, being human, we all are susceptible to various biases that can lead us to blunder. Our mistakes make us poorer and less healthy; we often make bad decisions involving education, personal finance, health care, mortgages and credit cards, the family, and even the planet itself.


Thaler and Sunstein invite us to enter an alternative world, one that takes our humanness as a given. They show that by knowing how people think, we can design choice environments that make it easier for people to choose what is best for themselves, their families, and their society. Using colorful examples from the most important aspects of life, Thaler and Sunstein demonstrate how thoughtful “choice architecture” can be established to nudge us in beneficial directions without restricting freedom of choice.

I have a few questions:

  • Who is designing these choice environments for us to make it easier us to choose what is best for us? The EPA? The Department of Education? World Watch Institute?
  • Is there an oxymoron in the "Nudge" description and the reality of what educational "transformation" really means? "Nudging" theoretically doesn't restrict our freedom of choice. Two points on this contention: One, Federal mandates in education take away choice. Two, read this sentence from World Watch again: The project also seeks to bring women into educational, economic, political and health equality with men. This will require the erosion of cultural norms that promote early and frequent childbearing and expanding women's capacity to choose when to bear children. World Watch can couch it in any language it chooses, however, it is very clear the intent is to eliminate cultural norms and insert its ideas and rules on how life is to be lived. The Institute has just turned it around by "expanding women's capacity to choose". No. The Institute wants to take away a woman's right to bear children whenever she chooses by "transforming the culture".
  • What does "harnessing institutions" mean? Read this paragraph again: Worldwatch Institute's Transforming Cultures project turns a critical eye to how we can shift today's consumer cultures toward cultures of sustainability. The key to this transformation will lie in harnessing institutions that play a central role in shaping society—such as the media, educational services, business, governments, traditions, and social movements—to instill this new cultural orientation. This doesn't sound like being "nudged in a beneficial direction" to me, it sounds like forced indoctrination of the media, schools, businesses, etc. Instilling new cultural orientation means controlling the message. This was almost successful until a whistle blower cast doubt on the veracity of the scientific data used in climate change data. Could this be why those opposed to Al Gore's theories of climate change are met with such hatred? Transformation of cultural traditions and social movements are included as well. Is this the reason on why conservative social family or religious structures are ridiculed?
Some sample EPA curriculum used in the lower grades is linked here. See if you can spot the harnessing of the educational service to children in these sheets. Al Gore's movie is still being highlighted for highschoolers even as much of his research data is questioned for its truthfulness. That nudging wasn't as successful as hoped.

I am suspect when these governmental agencies become so entwined in our lives and especially in the lives of our schoolchildren. I am also concerned about the partnership of outside agencies such as World Watch Institute with the EPA and NEEF. When common core standards are established (the harnessing and the nudging of information which has a distinct political agenda), what are you as a parent going to do? What choice do you have?

Oh, but I forgot...no worries! Remember as Cass Sunstein tells us,

Our mistakes make us poorer and less healthy; we often make bad decisions involving education, personal finance, health care, mortgages and credit cards, the family, and even the planet itself.

According to the theory and the actions of these governmental agencies, they just have to nudge us to live our lives in the way they deem beneficial to society and the world. We must nudge them back and tell them no. These are our children and our schools and our decisions.

Kentucky Coal Association Sues EPA
Posted Monday, October 18, 2010

The state's Energy and Environment Cabinet joins the KCA in challenging EPA's interim guidance for conductivity in streams.

The Kentucky Coal Association filed suit Oct. 18 contesting the legality of the U.S. Environmental Protection Agency's oversight of Kentucky's coal mine permitting activities.

The suit, filed in the U.S. District Court for the Eastern District of Kentucky in Pikeville, names the EPA and EPA Administrator Lisa Jackson as defendants.

Kentucky Gov. Steve Beshear directed the state's Energy and Environment Cabinet to join the KCA in the lawsuit.

“In late September of this year, the EPA continued its onslaught against Kentucky's coal industry by vetoing numerous KPDES (Kentucky Pollutant Discharge Elimination System) permits that the Kentucky Division of Environmental Protection (DEP) had proposed to issue for coal mining activities,” read a media release from the KCA.

“The EPA took this action notwithstanding the fact that it had approved the issuance of the same type of permit for nearly 30 mining activities as recently as six months ago, concluding that the permits were consistent with CWA requirements.”

Beshear said the EPA's decisions threaten to “end the responsible mining of coal and eliminate the jobs of an estimated 18,000 Kentucky miners who depend on mining for their livelihood.”

The legal action centers on the EPA's application of April 1 interim guidance that establishes benchmarks for electrical conductivity in streams below coal mining operations in Appalachia.

The agency has objected to the issuance of 11 Clean Water Act permits written by the Kentucky Division of Water, permits that are similar to some allowed earlier in the year, according to the media release from the governor's office.

“EPA is not allowing formal legal challenges to those specific permit objections until EPA itself re-writes and issues the permit to its satisfaction,” the release reads. “For individual (Clean Water Act) permits where the state is unable to resolve the EPA objection in the 90-day period allowed, EPA will become the permitting and enforcement authority for those mining operations for the life of that permitting action. EPA is under no timeframe to take any final action in response to their objection letter.”

Click here to read the complaint. (PDF File)

 

CONTACTS:

Stacy Kika

Kika.stacy@epa.gov

202-564-0906

202-564-4355

FOR IMMEDIATE RELEASE

October 19, 2010

EPA to Provide Technical Assistance on Sustainable Growth and Development

More information on the Smart Growth Assistance Program: http://www.epa.gov/smartgrowth/sgia.htm

More information on the partnership: http://www.epa.gov/smartgrowth/partnership/index.html

View the partnership progress report: http://www.epa.gov/smartgrowth/pdf/partnership_year1.pdf

 

Governmental Controls: Types of institutional controls that impose land or resource restrictions using the authority of an existing unit of government (e.g., state legislation, local ordinance, well drilling permit, etc.). NONE!

Consent Decree: Legal document approved by a judge that formalizes an agreement reached between EPA and companies, governments, or individuals associated with contamination at the sites (potentially responsible parties (PRPs)) through which PRPs will take certain actions to resolve the contamination at a Superfund site. NOT THIS PRP

[$ 512] (2) Adjoining Lots under One Inclosure. Although a tract may be subdivided into a number of smaller lots separated by partitions, possession of one may, nevertheless, be constructive possession of all if inclosed by a common fence. 00 This, it has been held, is true, although the title to the different lots may be derived from different sources. 01

Empowering Safe Lands & Watersheds

1. To invest with power, especially legal power or official authority. Stakeholder Meetings/CEQA

Iron Mountain Mine advancing the development of renewable energy on potentially uncontaminated land

WHY IS IT A GOOD IDEA TO BUY A PROPERTY WITHIN A SUPERFUND SITE?

LOCATION, location, location. Many Superfund sites have advantageous and desirable locations. Some federal, state, and local government agencies offer grants, loans, and tax incentives to encourage development and revitalization of contaminated and formerly contaminated properties and surrounding areas.
Superfund sites throughout the country have been transformed into major shopping centers, business parks, residential subdivisions, and recreational facilities. Many more Superfund sites are being revitalized for use by small businesses. A large number of Superfund sites are suitable for revitalization even while cleanup on the property progresses. (See http://www.epa.gov/superfund/ programs/recycle/ for more information on revitalization of Superfund sites). Integrating the reuse of a Superfund site into the cleanup can often occur smoothly, which minimizes future surprises regarding undiscovered contamination.

HOW DO I IDENTIFY ALL OF THE PARTIES I HAVE TO DEAL WITH TO BUY THE SITE OR A PROPERTY WITHIN THE SITE AND HOW IS EPA INVOLVED?
THERE is no simple solution to identify all of the parties associated with a Superfund site but the process begins with the current owner. As with the purchase of any property, negotiations to buy a Superfund site begin with the current owner who can be identified through property title or tax records. EPA rarely owns the site being cleaned up. Generally, EPA’s Regional offices may assist in addressing the following questions:

What is the current status of a site’s cleanup and what are EPA’s future anticipated actions?

Is the proposed redevelopment compatible with a site’s cleanup and with the existing and potential future property use restrictions? Note: EPA does not offer guarantees of compatibility.

Is the prospective purchaser aware of the applicable landowner liability protections under Superfund?

How can EPA work with the prospective purchaser to settle or resolve any EPA liens?7
EPA is willing to work with prospective purchasers to clarify a property’s cleanup status and potential liability issues including the existence and satisfaction of EPA liens and property use restrictions. States also have cleanup programs and prospective purchasers should contact the appropriate state environmental agency to make certain they are aware of planned or ongoing state-lead cleanup actions at the property.

We hereby execute our sovereign absolute authority which allows intervention as of right in any civil or administrative action to obtain remedies by any citizen having an interest which is or may be adversely affected; all citizen complaints submitted pursuant to the procedures specified in §123.26(b)(4); permissive intervention authorized by statute, rule, or regulation; October 14, 2010 Citizens seek to join suit over EPA mining rules

Identify the breakdowns in management that allowed actions prohibited by EPA ethics policies to occur and implement accountability.

SAFETY OFFICERS' SEISMIC HOSPITAL TASKFORCE 5 (SOS-HT5) TO DEVELOP BUILDING MATERIALS FOR THE MANDATED SAFE HOSPITAL CODE AND WALL SYSTEM DUE FOR COMPLETION BY 2030

Iron Mountain Mine remediation comprises a range of best practices that may be applied throughout the private remedy operations. The best management practices of green remediation provide potential means to improve waste management; conserve or preserve energy, fuel, water, and other natural resources; promote sustainable long-term stewardship; and reduce adverse impacts on the local community during and after remediation activities. Green remediation can also complement efforts to return the private site to productive use in a sustainable manner, such as utility-scale production of renewable energy, utility scale hydropower, utility scale photovoltaic, utility scale wind, utility scale biorefinery and biopower, etc..
Utilization of green remediation strategies within the scope of the private response help ensure a protective remedy. It may be possible to lessen the long-term negative effects of the governments previous actions on the site. With the presently operating removal action green remediation practices may be used to upgrade or optimize treatment systems.

Iron Mountain Mine remediation strategies complement site reuse involving sustainable activities and property development in accordance with smart growth principles and green building practices.

In April 2009, the OIG identified 10 key management challenges for Fiscal Year 2009. Three of those challenges impact EPA's management and enforcement capability: 1 EPA's organization and infrastructure; 2 Oversight of delegations to States; and 3 Performance measurement.

We believe that the underlying issues persist. EMANCIPATE T.W. ARMAN & IRON MOUNTAIN MINE

Innocent and “Unknowing” Purchasers

Entities that acquire property and had no knowledge of the contamination at the time of purchase may be eligible for CERCLA’s third- party defense for certain purchasers of contaminated property. CERCLA §§ 107(b)(3), 101(35)(A)(i). This defense, added to CERCLA in the Superfund Amendments and Reauthorization Act of 1986 (Public Law 99-499), provides entities with an affirmative defense to liability if they conducted all appropriate inquiries prior to purchase and complied with other pre- and post-purchase requirements. The 2002 Brownfields Amendments partially amended the innocent purchaser defense by elaborating on the all appropriate inquiry requirement. See the “All Appropriate Inquiries” text box on page 17.
The innocent purchaser defense may provide liability protection to some owners of contaminated property -- especially those that purchased property prior to January 1, 2002, and are therefore ineligible for the bona fide prospective purchaser protection -- but generally most post-2002 prospective purchasers will not rely on this defense because of the requirement that the purchaser have no knowledge of contamination at the site.
Several of EPA’s guidance documents discuss the innocent purchaser third-party defense, including the Common Elements guidance, discussed below in Section II.A.5 beginning on page 21.

 

The synopsis for this grant opportunity is detailed below, following this paragraph. This synopsis contains all of the updates to this document that have been posted as of 03/23/2009 . If updates have been made to the opportunity synopsis, update information is provided below the synopsis.

If you would like to receive notifications of changes to the grant opportunity click send me change notification emails . The only thing you need to provide for this service is your email address. No other information is requested.

Any inconsistency between the original printed document and the disk or electronic document shall be resolved by giving precedence to the printed document.

Description of Modification

Corrected Title

Document Type: Modification to Previous  Grants Notice
Funding Opportunity Number: PD-10-1179
Opportunity Category: Discretionary
Posted Date: Mar 23, 2009
Creation Date: Oct 20, 2010
Original Closing Date for Applications: Mar 03, 2011    Full Proposal Window: February 1, 2011 - March 3, 2011 Full Proposal Window: August 15, 2011 - September 15, 2011
Current Closing Date for Applications: Mar 03, 2011    Full Proposal Window: February 1, 2011 - March 3, 2011 Full Proposal Window: August 15, 2011 - September 15, 2011
Archive Date:
Funding Instrument Type: Grant
Category of Funding Activity: Science and Technology and other Research and Development
Category Explanation:
Expected Number of Awards: 0
Estimated Total Program Funding: $0
Award Ceiling:
Award Floor:
CFDA Number(s): 47.041  --  Engineering Grants
Cost Sharing or Matching Requirement: No
 

Eligible Applicants

Unrestricted (i.e., open to any type of entity above), subject to any clarification in text field entitled "Additional Information on Eligibility"

Additional Information on Eligibility:


Agency Name

National Science Foundation

Description

The Environmental Implications of Emerging Technologies program provides support to develop and test the environmental effects of new technologies. Fundamental and basic research is sought to establish and understand outcomes as a result of the implementation of new technologies such as nanotechnology and biotechnology. The program also supports research on the development and refinement of sensors and sensor network technologies that can be used to measure a wide variety of physical, chemical, and biological properties of interest in characterizing, monitoring, and understanding environmental impacts.The program emphasizes engineering principles underlying technology impacts. Innovative production processes, waste reduction, recycling, and industrial ecology technologies are of interest. All of these have implications that would be relevant to this program. Current areas of support include: * Understanding and mitigating how new developments in nanotechnology and biotechnology will interact with the environment * Nanotechnology environmental, health, and safety implications and applications * Predictive methodology for the interaction of nanoparticles with the environment and with the human body, including predictive approaches for toxicity * Fate and transport of natural, engineered, and incidental (by-product) nanoparticles * Risk assessment and management of the effect of nanomaterials in the environment * Sensor and sensor network technologies as they relate to the measurement of these environmental implicationsCurrent areas of support for this program do not include biomedical and nanotoxicology topics involving clinical trials.All proposed research should be driven by engineering principles, and presented in an environmental health and safety or environmental sensor context. Proposals should include involvement of at least one engineering student.The duration of unsolicited awards is generally one to three years. The average annual award size for the program is $100,000. Small equipment proposals of less than $100,000 will also be considered and may be submitted during these windows. Any proposal received outside the announced dates will be returned without review.The duration of CAREER awards is five years. The submission deadline for Engineering CAREER proposals is in July every year. Please see the following URL for more information: http://www.nsf.gov/pubs/2008/nsf08051/nsf08051.jsp.Proposals for Conferences, Workshops, and Supplements may be submitted at any time, but must be discussed with the program director before submission.Grants for Rapid Response Research (RAPID) and EArly-concept Grants for Exploratory Research (EAGER) replace the SGER program. Please note that proposals of these types must be discussed with the program director before submission. Further details are available in the PAPPG download, available below. Please refer to the Proposal and Award Policies and Procedures Guide (PAPPG), January 2009, (NSF 09-1) when you prepare your proposal.

Link to Full Announcement

NSF Program Description 09-1179

If you have difficulty accessing the full announcement electronically, please contact:

NSF grants.gov support
grantsgovsupport@nsf.gov
If you have any problems linking to this funding announcement, please contact

Synopsis Modification History

The following files represent the modifications to this synopsis with the changes noted within the documents. The list of files is arranged from newest to oldest with the newest file representing the current synopsis. Changed sections from the previous document are shown in a light grey background.

File Name Date
Modification #4 Sep 27, 2010
Modification #3 Mar 11, 2010
Modification #2 Nov 16, 2009
Modification #1 Nov 16, 2009
Original Synopsis Mar 23, 2009
 

During the New Deal Era, the Supreme Court began to depart from the Lochner era constitutional interpretation of the Commerce Clause , Due Process , and the Contract Clause.

In Home Building & Loan Association v. Blaisdell 290 U.S. 398 (1934), the Supreme Court upheld a Minnesota law that temporarily restricted the ability of mortgage holders to foreclose. The law was enacted to prevent mass foreclosures during a time of economic hardship in America . The kind of contract modification performed by the law in question was arguably similar to the kind that the Framers intended to prohibit. The Supreme Court held that this law was a valid exercise of the state's Police Power . It found that the temporary nature of the contract modification and the emergency of the situation justified the law.. [ 18 ]

Further cases have refined this holding, differentiating between governmental interference with private contracts and interference with contracts entered into by the government. Succinctly, there is more scrutiny when the government modifies a contract to alter its own obligations. (See United States Trust Co. v. New Jersey , 431 U.S. 1 (1977).) [ 18 ]

Modification of Private Contracts

The Supreme Court laid out a three-part test for whether a law violates the Contract Clause in Energy Reserves Group v. Kansas Power & Light 459 U.S. 400 (1983). First, the state regulation must substantially impair a contractual relationship. Second, the State "must have a significant and legitimate purpose behind the regulation, such as the remedying of a broad and general social or economic problem." 459 U.S. at 411-13 Third, the law must be reasonable and appropriate for its intended purpose. This test is similar to rational basis review. [ 18 ]

Modification of Government Contracts

In United States Trust Co. v. New Jersey , the Supreme Court held that a higher level of scrutiny was needed for situations where laws modified the government's own contractual obligations. In this case, New Jersey had issued bonds to finance the World Trade Center and had contractually promised the bondholders that the collateral would not be used to finance money losing rail operations. Later, New Jersey attempted to modify law to allow financing of railway operations, and the bondholders successfully sued to prevent this from happening. [ 19 ]

"Mr. Chairman: EPA's ability to effectively manage, oversee, and enforce the environmental laws under its jurisdiction, including the Clean Water Act, has been impeded by several factors including its current organizational structure, how it oversees State delegated authorities, and limitations in performance measurements. On the 37th anniversary of the Clean Water Act, we believe that a recommitment to the protection of the nation's waters can be achieved by an EPA that is strategically aligned to uniformly enforce environmental statutes and provide consistent oversight of its Regions and State delegations. This will require a comprehensive review of EPA's current organization and a commitment to implement best practices."

A Primer in Constitutional law

Congress' enumerated powers

 

 

Shares of fertilizer producers soar

Food prices and agriculture exchange traded funds (ETFs) both may reflect the news contained in the USDA's harvest projections.

The U.S. Department of Agriculture cut its harvest projections for corn, soybeans and wheat, adding fuel to the commodity-rally fire . Meanwhile, further concerns about a food shortage are becoming a reality. Scott Kilman and Liam Pleven for The Wall Street Journal report that the agency's decision to cut its month-old corn projection by 3.8% was startling to many. [ Commodity ETFs Are Leading The Charge. ]

Historically, though, the USDA's forecast for corn crops is still the third-largest ever.

Economists expect farmers to respond to high grain prices by planting millions more acres of corn and wheat , which should benefit sellers of seed and chemicals to farmers such as Monsanto Co. and DuPont Co. The larger threat comes from using other farmland for those commodities in a shortage in order to make up. This could in turn create another shortage.

 

IRON MOUNTAIN MINE - HEMATITAN™ $1200/TON - $45/ 5 gal. plus shipping fax to 530-275-4559

EPA/ CALIFORNIA DTSC/ CAL-EPA/ REGIONAL WATER QUALITY CONTROL BOARD: COPPER, CADMIUM, AND ZINC; QAPP Information: QA Info Missing;

 

VINDICATION OF FALSE CLAIMS, EPA ACTIONS ARE ARBITRARY AND CAPRICIOUS, AN ABUSE OF PROCESS AND DISCRETION, THE GOVERNMENTS CONDUCT IS INTENTIONAL AND MALICIOUS RECKLESS NEGLIGENT ENDANGERMENT WITH ULTERIOR MOTIVES.

IRON MOUNTAIN MINE IS NOT RESPONSIBLE FOR ANY HEAVY METAL CONTAMINATION OF THE SAN FRANCISCO BAY

COPPER COMES PRIMARILY FROM AUTOMOBILE BRAKE WEAR IN BAY AREA STORM WATER RUN-OFF AND BOAT PAINT

CADMIUM COMES FROM THE MOTH-BALL FLEETS FLAKING PAINT AND OLD BATTERIES

ZINC IS NOT POLLUTION, IT IS A NUTRIENT (LIKE COPPER)

IRON MOUNTAIN HAS NO MERCURY HALO, SO ASK YOUR DENTIST

KESWICK LAKE AND THE CABECERA DEL RIO DE BUENAVENTURA (OLD SACRAMENTO) TO REDBLUFF DAM HAVE THE SAFEST FISH TO EAT IN THE STATE OF CALIFORNIA

COPPER, ZINC, IRON, MAGNESIUM, MANGANESE, SULFUR, CALCIUM, MOLYBDENUM, PHOSPHORUS, POTASSIUM, ETC. HUNGRY YET?

Administrative and National Policy Requirements
1. A listing and description of general EPA Regulations applicable to the award of assistance agreements may be viewed at: http://www.epa.gov/ogd/AppKit/applicable_epa_regulations_and_description.htm.
2. Executive Order 12372, Intergovernmental Review of Federal Programs, may be applicable to awards resulting from this announcement. Applicants selected for funding may be required to provide a copy of their proposal to their State Point of Contact (SPOC) for review, pursuant to Executive Order 12372, Intergovernmental Review of Federal Programs. This review is not required with the proposal and not all states require such a review.
3. Applicable regulations include: 40 CFR Part 30 (Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations), 40 CFR Part 31 (Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments) and 40 CFR Part 40 (Research and Demonstration Grants). Applicable OMB Circulars include: OMB Circular A-21 (Cost Principles for Educational Institutions) relocated to 2 CFR Part 220, OMB Circular A-87 (Cost Principles for State, Local and Indian Tribal Governments) relocated to 2 CFR Part 225, OMB Circular A-102 (Grants and Cooperative Agreements With State and Local Governments), OMB Circular A-110 (Uniform Administrative Requirements for Grants and Other Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations) relocated to 2 CFR Part 215, and OMB Circular A-122, (Cost Principles for Non-Profit Organizations) relocated to 2 CFR Part 230

 

IRON MOUNTAIN MINE CONSTRUCTION COMPLETE 2005

 

E.P.A. to Revoke Mining Permit

By THE ASSOCIATED PRESS Published: October 15, 2010

CHARLESTON, W.Va. (AP) -- The Environmental Protection Agency said Friday that it was following through with its year-old plan to revoke a crucial permit for West Virginia's largest mountaintop removal mine, saying the operation would cause irreversible damage to the environment and wildlife. Arch spokeswoman Kim Link said the company will defend its permit "vigorously." She warned that if EPA follows through on the veto, the state's economy and tax base will suffer. Arch planned to invest $250 million, create 250 well-paying jobs and generate tens of millions of dollars in tax revenues "in a region that desperately needs both," she said. Link said the ruling effectively puts every U.S. business on notice that a legally issued Clean Water Act permit "can be revoked at any time according to the whims of the federal government." "Clearly, such a development would have a chilling impact on future investment and job creation," she said.

 

 

a private party may “recover expenses associated with cleaning up contaminated sites.” United States v. Atl. Research Corp., 551 U.S. 128, 131

MOAs Are Missing Key Regulatory Requirements
MOAs were missing key requirements of Title 40 CFR 123.24. MOA documents also lacked MOA-specific program regulations contained in Title 40 CFR 123.26 and 123.27. For each of the 46 criteria, OIG rated the MOA as a “0” (does not address this element), “1” (addresses the element in some way), or “2” (addresses the element verbatim or in synonymous language). Figure 2-1 shows that across all regulatory criteria, MOAs did not contain 39 percent of the criteria, and that 61 percent of regulatory criteria are either not addressed or only partially addressed. EPA should define the requirements for management control of a nationally consistent enforcement program, and then review each State MOA to determine which MOAs are adequate and which MOAs need to be revised.

MOAs did not address key regulatory requirements for MOA documents. For example, the CFR requires that States establish data management systems to support their compliance evaluation activities. Twenty percent of the MOAs did not contain any language about a data management system. This does not mean the State does not have such a system or that the system is not discussed in another document. However, because the primary, required document, the MOA, does not mention it, EPA cannot readily determine whether there is nationwide uniformity in data management systems.
MOAs also did not include a number of the additional regulatory program requirements contained in Title 40 CFR 123.26 and 123.27. These additional requirements correspond to the programmatic deficiencies that OECA identified in its first-round State Review Framework evaluations (data quality, identification of significant violations, the timeliness of enforcement actions, and penalties). For example, the CFR requires that States establish minimum civil penalty policies, such as the ability to assess at least a $5,000 penalty per day for each NPDES violation. The State Review Framework identified penalty calculation as a comprehensive weakness. Fifty-four percent of MOAs did not include any language about minimum civil penalty standards (i.e., received a score of “0” for this element). Only 1 of the 46 MOAs specified that the minimum penalty per day, per violation, would be $5,000 (a score of “2”).
MOAs most comprehensively addressed the MOA-specific regulations (CFR 123.24), containing these requirements 77 percent of the time. MOAs contained fewer requirements in the non-MOA-specific monitoring and inspections section (65 percent for CFR 123.26) and fewest in the enforcement section (36 percent for CFR 123.27). For example, 63 percent of the MOAs did not include language verifying that no other State enforcement agreement could override the MOA, as required by CFR 123.24(c). Eighty percent of MOAs did not note whether the State had the authority to enter any permitted facility (123.26(c)). Figure 2-2 shows how the percentage of missing regulations varied according to the CFR section under review.

 

PRIOR APPROPRIATION RIGHTS (ARMAN POWER DAM, SPRING CREEK DAM, SLICKROCK CREEK DIVERSION DAM, ESI, IMMI,, &e.)

RIPARIAN RIGHTS

Supreme Court's Denial of Certiorari in Apex Oil Leaves Standing Seventh Circuit Ruling that Environmental Cleanup Injunctions are Not Dischargeable in Bankruptcy

 

Metal Value Recovery from Metal Hydroxide Sludges: Removal of Iron

L. G. Twidwell and D. R. Dahnke are with Montana College of Mineral Science and Technology, Butte , MT 59701 .

John F. Martin is the €PA Project Officer (see below) The complete report, entitled “Metal Value Recovery from Metal Hydroxide Sludges: Removal of Iron and Recovery of Chromium,” (Order No. PB 88- 176 078lAS; Cost: $25.95, subject to change) will be available only from: National Technical Information Service 5285 Port Royal Road Springfield , VA 22 16 1 The EPA Project Officer can be contacted at: Hazardous Waste Engineering Research Laboratory U.S. Environmental Protection Agency Cincinnati , OH 45268

Results and Conclusions

An extremely large data base has been generated during the course of the present study for both the bench-scale and the large-scale test work. The bench-scale study results support the following conclusions:

The emphasis of the project was directed toward investigating the application of phosphate precipitation as a means of selectively separating iron and chromium from divalent cation species.
These objectives have been accomplished. Flowsheets and alternatives are discussed in the body of the main report. The developed flowsheets have been verified to be feasible by laboratory test work and selective metal value separations have been shown to be possible, e.g., iron and chromium can be separated from divalent metals such as zinc, nickel, and cadmium. Large-scale test work has also verified that effective separations are feasible and practical, and an economic evaluation has been performed showing that an excellent return on investment is possible.

NIST Releases 2009 Department of Commerce Technology Transfer Report

 

An efficient solution for the single-step synthesis of 4CaO * Al2O3 * Fe2O3 powders
Robert Ianos¸a)
“Politehnica” University of Timis¸oara, Faculty of Industrial Chemistry and Environmental
Engineering, Timis¸oara 300006, Romania
(Received 29 April 2008; accepted 8 October 2008)
Single-phase nanocrystalline 4CaOAl2O3Fe2O3 powders were prepared directly from
the combustion reaction using a new cost-effective, time-saving, and environmentally
friendly version of solution combustion synthesis. Instead of a single fuel, a fuel mixture
of urea and b-alanine was used. It was shown by x-ray diffraction, energy-dispersive
x-ray analysis, thermogravimetric analysis, and optical microscopy that this new version
of the solution combustion synthesis allows the maximization of the exothermic effect
associated with the combustion reaction. On the other hand, it was shown that the
traditional version of combustion synthesis involving the use of a single fuel, such as urea
or b-alanine, does not ensure the formation of Ca4Al2Fe2O10 unless subsequent thermal
treatments are applied. It was suggested that the occurrence of combustion reactions
cannot be regarded only in terms of adiabatic temperature, as the kinetic aspects overrule
the thermodynamic ones.

 

Sec. 123.27 Requirements for enforcement authority. (a) Any State agency administering a program shall have available the following remedies for violations of State program requirements: (1) To restrain immediately and effectively any person by order or by suit in State court from engaging in any unauthorized activity which is endangering or causing damage to public health or the environment; Note: This paragraph (a)(1) requires that States have a mechanism (e.g., an administrative cease and desist order or the ability to seek a temporary restraining order) to stop any unauthorized activity endangering public health or the environment. (2) To sue in courts of competent jurisdiction to enjoin any threatened or continuing violation of any program requirement, including permit conditions, without the necessity of a prior revocation of the permit; (3) To assess or sue to recover in court civil penalties and to seek criminal remedies, including fines, as follows: (i) Civil penalties shall be recoverable for the violation of any NPDES permit condition; any NPDES filing requirement; any duty to allow or carry out inspection, entry or monitoring activities; or, any regulation or orders issued by the State Director. These penalties shall be assessable in at least the amount of $5,000 a day for each violation. (ii) Criminal fines shall be recoverable against any person who willfully or negligently violates any applicable standards or limitations; any NPDES permit condition; or any NPDES filing requirement. These fines shall be assessable in at least the amount of $10,000 a day for each violation. Note: States which provide the criminal remedies based on ``criminal negligence,'' ``gross negligence'' or strict liability satisfy the requirement of paragraph (a)(3)(ii) of this section. (iii) Criminal fines shall be recoverable against any person who knowingly makes any false statement, representation or certification in any NPDES form, in any notice or report required by an NPDES permit, or who knowingly renders inaccurate any monitoring device or method required to be maintained by the Director. These fines shall be recoverable in at least the amount of $5,000 for each instance of violation. Note: In many States the State Director will be represented in State courts by the State Attorney General or other appropriate legal officer. Although the State Director need not appear in court actions he or she should have power to request that any of the above actions be brought. (b)(1) The maximum civil penalty or criminal fine (as provided in paragraph (a)(3) of this section) shall be assessable for each instance of violation and, if the violation is continuous, shall be assessable up to the maximum amount for each day of violation. (2) The burden of proof and degree of knowledge or intent required under State law for establishing violations under paragraph (a)(3) of this section, shall be no greater than the burden of proof or degree of knowledge or intent EPA must provide when it brings an action under the appropriate Act; Note: For example, this requirement is not met if State law includes mental state as an element of proof for civil violations. (c) A civil penalty assessed, sought, or agreed upon by the State Director under paragraph (a)(3) of this section shall be appropriate to the violation. Note: To the extent that State judgments or settlements provide penalties in amounts which EPA believes to be substantially inadequate in comparison to the amounts which EPA would require under similar facts, EPA, when authorized by the applicable statute, may commence separate actions for penalties. Procedures for assessment by the State of the cost of investigations, inspections, or monitoring surveys which lead to the establishment of violations; In addition to the requirements of this paragraph, the State may have other enforcement remedies. The following enforcement options, while not mandatory, are highly recommended: Procedures which enable the State to assess or to sue any persons responsible for unauthorized activities for any expenses incurred by the State in removing, correcting, or terminating any adverse effects upon human health and the environment resulting from the unauthorized activity, whether or not accidental; Procedures which enable the State to sue for compensation for any loss or destruction of wildlife, fish or aquatic life, or their habitat, and for any other damages caused by unauthorized activity, either to the State or to any residents of the State who are directly [[Page 249]] aggrieved by the unauthorized activity, or both; and Procedures for the administrative assessment of penalties by the Director. (d) Any State administering a program shall provide for public participation in the State enforcement process by providing either: (1) Authority which allows intervention as of right in any civil or administrative action to obtain remedies specified in paragraphs (a)(1), (2) or (3) of this section by any citizen having an interest which is or may be adversely affected; or (2) Assurance that the State agency or enforcement authority will: (i) Investigate and provide written responses to all citizen complaints submitted pursuant to the procedures specified in Sec. 123.26(b)(4); (ii) Not oppose intervention by any citizen when permissive intervention may be authorized by statute, rule, or regulation; and (iii) Publish notice of and provide at least 30 days for public comment on any proposed settlement of a State enforcement action. (e) Indian Tribes that cannot satisfy the criminal enforcement authority requirements of this section may still receive program approval if they meet the requirement for enforcement authority established under Sec. 123.34. (Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.)) [48 FR 14178, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983; 50 FR 6941, Feb. 19, 1985; 54 FR 258, Jan. 4, 1989; 58 FR 67981, Dec. 22, 1993]

CONTACT:

EPA Press Office

press@epa.gov

202-564-6794

FOR IMMEDIATE RELEASE

October 21, 2010

Partnership for Sustainable Communities Awards Grants to Build Infrastructure Nationwide

EPA, HUD and DOT Work Together Through Coordinated Grant Program

WASHINGTON – Today at the National Press Club, administration officials highlighted recent grants released by the Partnership for Sustainable Communities to support more livable and sustainable communities across the country. The Partnership, which consists of the U.S. Environmental Protection Agency (EPA), U.S. Department of Transportation (DOT), and U.S. Department of Housing and Urban Development (HUD), builds economic competitiveness by connecting housing with good jobs, transportation, and more.  Last week, agencies began releasing local grants to support sustainable living nationwide.  The combined sum of the agencies' grants is $409.5 million.

“We're working to change the way government works, and that means investing tax dollars wisely and well,” President Obama said in a statement.  “We want to make sure that when we're building infrastructure, we're considering how housing, transportation, and the environment all impact each other.  These grants are designed to get the biggest bang for our tax dollar buck.”         

Over the past year, EPA, HUD, and DOT have worked together to promote better outcomes for communities and more effective federal investments through better targeted federal resources, removal of existing federal regulatory and policy barriers to smart and sustainable development, as well as aligned agency priorities that will ensure lasting collaboration. 

“These grants will help boost economic development with the goal that all Americans can afford to live in communities with access to employment, schools and transportation options,” said HUD Secretary Shaun Donovan.  “Communities across the country offered bold, unique proposals to plan and build sustainably based on their own local resources, landscape, culture and ingenuity.  With this partnership we can lay the foundation for sustainable economic prosperity for generations to come by helping communities that share problems start sharing solutions.”

Coordinating federal investments in infrastructure, facilities, and services meets multiple economic, environmental, and community objectives with each dollar spent.  The Partnership is helping communities across the country to create more housing choices, make transportation more efficient and reliable, reinforce existing investments, and support vibrant and healthy neighborhoods that attract businesses.

“These investments represent an unprecedented new way of working together.  And they set a powerful example for how we can reward true excellence, effective partnerships, and the good stewardship of taxpayer dollars,” said Transportation Secretary Ray LaHood. “Americans can rebuild their communities - not just in spite of enormous economic challenges, but as the means for overcoming them.”

At a time when every dollar the federal government invests in jumpstarting the economy is critical, the President's plan ensures that all these agencies are coordinating efforts and targeting resources with precision. This collaboration gets better results for communities and uses taxpayer money more efficiently.  Reflecting this new collaboration, these grants were judged by a multidisciplinary review team, drawn from eight federal agencies and from partners in philanthropy. 

"President Obama has made clear that sustainable communities with affordable housing and access to a broad range of transportation options are vital to rebuilding the foundation for prosperity in this country,” EPA Administrator Lisa P. Jackson said. “This Partnership is bringing our efforts together, allowing our resources to have more impact, and ensuring that we are collaborating on the housing, transportation and environmental needs that are essential to the success of every community. Our work has already helped to create healthier communities and open up better opportunities to attract new jobs and investments.”

For more information on the Partnership for Sustainable Communities fact sheet: http://www.whitehouse.gov/sites/default/files/uploads/SCP-Fact-Sheet.pdf

For more information about the Partnership for Sustainable Communities: http://www.epa.gov/smartgrowth/pdf/partnership_year1.pdf

September 2010 Superfund Green Remediation Strategy

Filed under: Environmental Remediation , Publications — Laura B. @ 9:11 am

The September 2010 Strategy reflects extensive public comment on the Agency's August 2009 Strategy and EPA response to the input. It also reflects refined EPA policy, modified activities within the key actions, and other developments as green remediation matures. View or download at http://www.epa.gov/superfund/greenremediation/ .

Residential property owners that purchase contaminated property after January 2002, can take advantage of the statutory BFPP protection. The Brownfields Amendments addressed residential property owners by clarifying the type of pre-purchase investigation (i.e., all appropriate inquiry) that a residential property owner must conduct to obtain BFPP status. Specifically, an inspection and title search that reveal no basis for further investigation will satisfy all appropriate inquiry for a residential purchaser. CERCLA § 101(40)(B)(iii).

After the enactment of the Brownfields Amendments, EPA issued a policy on May 31, 2002, Bona Fide Prospective Purchasers and the New Amendments to CERCLA, which discusses the interplay of the legislatively created BFPP and EPA’s use of PPAs. In that policy, EPA stated that in most circumstances, PPAs will no longer be needed for a party to enjoy liability relief under CERCLA as a present owner. There will continue to be, however, limited circumstances under which EPA will consider entering into a PPA, such as:
• Significant environmental benefits will be derived from the project in terms of cleanup;
• The facility is currently involved in CERCLA litigation such that there is a very real possibility that a party who buys the facility would be sued by a third party;

Unique, site-specific circumstances when a significant public interest will be served.
Despite the liability relief assurances to BFPPs which the above-referenced guidance documents provide, many prospective purchasers of contaminated property wanted further protection from EPA for cleanup work performed by them under EPA supervision. As a result of this need and to further encourage reuse and redevelopment on contaminated sites, EPA, jointly with the Department of Justice (DOJ), issued a model administrative order titled Issuance of CERCLA Model Agreement and Order on Consent for Removal Action by a Bona Fide Prospective Purchaser, for use as an agreement with a BFPP who intends to perform removal work at its property. The purpose of the model is to promote land reuse and revitalization by addressing liability concerns associated with acquisition of contaminated property. In particular, the removal work to be performed under the model must be of greater scope and magnitude than the “reasonable steps to prevent releases” which must be performed by BFPPs if they are to maintain their protected status under the statute.
The model provides a covenant not to sue for “existing contamination” and requires the person performing the removal work to reimburse EPA’s oversight costs. Contribution protection is also provided. The model is for use at sites of federal interest where the work is more significant and complex than other contaminated sites.

From the public perspective, the incentives to private investors catalyze projects that provide societal benefits, ranging from job creation to public health improvements. The more state and local governments and communities are aware of the benefits of and opportunities for vacant property redevelopment, the more they can seek ways to encourage investors to consider such projects.
CONCLUSION
There are significant economic, fiscal, environmental, and public health benefits of redeveloping vacant properties instead of developing greenfields. With the recent passage of the historic ARRA, state and local officials face numerous decisions about how, when, and where to invest funds to stimulate the economy. Investing in the redevelopment of vacant properties, including petroleum brownfields, and using the tools described above, will maximize the public investment value of those dollars.
One of the most important steps to reducing the barriers to such redevelopment is for state, local, and tribal decision-makers to engage in immediate outreach efforts to disseminate information about redevelopment opportunities and processes, as well as the significant financial and technical assistance mechanisms available to help with such efforts. One of the most promising strategies is corridor redevelopment – encouraging projects that simultaneously redevelop multiple vacant properties, including petroleum brownfields. This approach represents a tremendous opportunity for investors, with two significant advantages: the properties themselves are inexpensive, for their size often renders them unmarketable individually, while the inclusion of petroleum brownfields and the area-wide redevelopment approach makes the project eligible for myriad additional federal and state funding programs. In addition to outreach efforts and encouraging corridor redevelopment, state, local, and tribal decision-makers can also facilitate redevelopment by making policy changes that mitigate some of the historical obstacles to petroleum brownfield and vacant property redevelopment.

ORIGINAL INSITU MINING PLAN REJECTED WITHOUT EXPLANATION BY THE EPA

The “Simple” Math of TARP and AIG

“The math isn't that complicated,” White House Deputy Communications Director Jen Psaki claims . She was speaking of the Obama Administration's plan to convert the federal government's preferred stock in American International Group, Inc. (AIG) into 1.653 billion common shares .

The government currently owns about 80 percent of AIG because of the 2008-09 taxpayer multi-billion-dollar bailouts of the insurance giant, but the White House expects it will get all of the taxpayers' money back.

Says the government, if those 1.653 billion shares are sold at the $38.86 price apiece that they fetched on October 1st, and it is able to turn over its remaining preferred equity interests of $22.3 billion at face value, the government will get back $86.23 billion on its $69.8 billion investment. That's a profit of $16.7 billion on its AIG investment, it claims.

This, readers will recall, resulted in attention-grabbing headlines like “Breaking Even on AIG,” “AIG makes plans to fully pay back taxpayers,?” and “AIG's Miller Says U.S. May Profit on Bailout.” Who knew?

Of course, it's all based on the favorable assumption that when the government tries to sell its 1.653 billion shares, it will be able to do so at $38.86 apiece any time soon. However, the October 1st stock valuation for the common stock is based on its 667.2 million currently outstanding shares. Increasing the common shares by more than a billion to 2.317 billion shares, a 247 percent increase, will have a major impact on the price of the common stock.

As anyone familiar with the basic laws of supply and demand knows, the price is likely going to go down when that happens.

Maybe not instantly, but once government attempts to dump its shares, the bids on the stock will behave predictably. If the current private demand for the common shares remains constant, then the value per share would go down to about $11 to $12 a share, or an $18.5 billion stake. That means losses of at least $29 billion, if not more.

That's not only simple math, it has the advantage of actually reflecting the potential behavior of the market through the sudden increase of AIG's common shares. However, what's even more distressing than the Obama Administration's lack of knowledge about supply-and-demand economics is its attack on the Special Inspector General of the Troubled Asset Relief Program (SIGTARP) program, Neil Barofsky, from the White House website .

What did Barofsky do? He simply had the audacity to do his job and question the Administration's underlying assumptions. According to SIGTARP's website , its mission according to the law is to promote “the efficiency and effectiveness of TARP management, through transparency, through coordinated oversight, and through robust enforcement against those, whether inside or outside of Government, who waste, steal or abuse TARP funds.”

In a quarterly report to Congress , Barofsky notes that the Administration's claim that the taxpayer bailout of AIG will only cost $5 billion differs drastically from the Treasury's previous estimates of up to $45 billion. “While AIG's fortune may have indeed improved during the course of those six months, there is a serious question over how much of this decrease comes from a change in Treasury's methodology for calculating the loss as opposed to AIG's improved prospects,” Barofsky wrote.

Psaki counters that, “SIGTARP's analysis seems to be stuck in a time warp if they believe that we should ignore AIG's exit strategy in evaluating our investment in that company.” Barofsky, for his part, did not ignore the exit strategy, he essentially said the valuations based solely on future expected stock performance of a publicly-traded company are not an apples-to-apples comparison to what those losses would be under the Treasury's previous, audited methodology.

Barofsky explained, “Treasury's previous loss estimate for AIG, as with its estimates of other TARP investments in preferred shares of stock, accounts for a broad range of factors that might affect the value of Treasury's holdings. The Retrospective, however, abandoned the published Methodology, instead estimating a $5 billion loss based solely on the recent market closing price of AIG's common stock, on the assumption that the recapitalization plan will go exactly as planned…”

But as any stock investor knows full well, selling shares — especially a large quantity — at a preferred price is hardly a sure-thing. In this case, dumping 1.653 billion shares on the market and expecting the price to do anything but go down is hare-brained. Just to keep its current price, demand for AIG's common stock would have to almost triple, something the Treasury fails to note in its report.

Adding insult to injury, as Barofsky reports, the Treasury's “common-stock-based valuation would not and could not be used in Treasury's fiscal year 2010 TARP financial statements, will be published in November and which will continue to use auditor-approved methodology that has characterized every other Treasury estimate of loss on its AIG investment.” Therefore, when that report is presented next month, it is likely to show a significantly higher cost associated with the AIG bailout than the Treasury has let on its most recent estimate.

Barofsky even alerted the Treasury that the methodology had been switched that resulted in the new estimate of just a $5 billion cost for the bailout. But, alarmingly and unfortunately, reports Barofsky, “In its October 19, 2010, letter response, Treasury rejected SIGTARP's call for greater transparency, instead making the seemingly counterfactual claim that ‘there has not been any change in our established valuation methodology.'”

Barofsky called the Treasury's explanation “puzzling” since “[t]here is nothing in the Methodology that suggests that calculations on the valuation of preferred shares will be based on a planned conversion to common shares, which is presumably why Treasury's auditors will continue to require Treasury to use the more complex methodology in its audited financial statements.”

Barofsky continued, “This conduct has left Treasury vulnerable to charges that it has manipulated its methodology for calculating losses to present two different numbers depending on its audience: one designed for release in early October as part of a multifaceted publicity campaign touting the positive aspects of TARP and emphasizing the reduction in anticipated losses, and one, audited by the Government Accountability Office for release in November as part of a larger audited financial statement.”

“Treasury's unfortunate insensitivity to the values of transparency has led it to engage in conduct that risks further damaging public trust in Government,” Barofsky added.

But, what does the White House care? Quips the White House's Psaki, “Some people just don't like movies with happy endings.” Then again, maybe the White House just does not like Inspectors General (IGs). That would explain why it fired Inspector General Gerald Walpin from AmeriCorps because the agency was “unhappy with his investigation into the misuse of AmeriCorps funds by Kevin Johnson, the former NBA star who is now mayor of Sacramento, California and a prominent supporter of President Obama,” as noted by the Washington Examiner's Byron York .

And it would also explain why Obama has not even bothered nominating, as reported by the Washington Post , IGs for the Departments of Health and Human Services, Interior, and State, Special Inspectors General for Financial Stability and for Tax Administration. Not to mention failing to nominate IGs for the General Services Administration, the Office of Personnel Management, the Social Security Administration, the Nuclear Regulatory Commission, the U.S. Agency for International Development, and the Federal Deposit Insurance Corporation.

Can't have those guys running around, holding the government accountable for wasting trillions of dollars, right?

Ultimately, the SIGTARP questioned the Administration's claims of a “profit” on the TARP bailout that actually has yet to materialize. He called them out on it. That's what an Inspector General is supposed to do. He did his job.

Perhaps the White House would prefer it if no one in government or elsewhere was allowed to question its rosy assertions about the nation's dire fiscal outlook, with a $13.6 trillion national debt, endless bailouts, and government takeovers. The White House's attack on Barofsky is just its latest example of the politics of personal destruction, this time against an honest civil servant doing his best to hold a massive government bureaucracy answerable for its blatant propaganda claiming taxpayer “savings” within weeks of a critical election.

That's unfortunate. If there ever was a time when the government needed to be held accountable, it is now.

Robert Romano is the Senior Editor of Americans for Limited Government (ALG) News Bureau.



Read more at NetRightDaily.com: http://netrightdaily.com/2010/10/the-%E2%80%9Csimple%E2%80%9D-math-of-tarp-and-aig/#ixzz13gBrNdiE

 

TARP watchdog questions AIG valuation; reveals that Treasury has appointed observers to monitor "deadbeat'' banks

by Ryan Holeywell | October 25, 2010 5:20 PM

The latest report from the Special Inspector General for TARP questions the level of transparency the Treasury Department has offered in the bailout program and says the department may have used misleading figures when it released details about Amercian International Group Inc.'s repayment plan.

The estimate of a $5 billion loss to TARP on the AIG investment, contained in Treasury's recent two-year retrospective on the program, is a "dramatic shift" from an estimate just six months ago that taxpayers would take a $45 million hit on the deal, wrote Neil Barofsky, the special inspector general.

Barofsky's report said that although taxpayers might get a better deal on AIG then originally anticipated, Treasury's new projections rely on the assumption that AIG's recapitalization plan will go exactly as planned. In actuality, the projections "are subject to a degree of uncertainty."

The new figures apparently abandoned previous methodologies that Treasury used on its AIG calculations, according to Barofsky, and instead based the estimates on recent closing prices of AIG's common stock.

The watchdog suggested that Treasury's change in methodology, as opposed to an actual improvement in the company's prospects, accounted for the large shift on the cost of the deal.

"Without correction, this may render Treasury vulnerable to the charge that it is changing its methodology without adequate disclosure in order to create a more favorable impression of AIG's and TARP's projected losses," Barofsky wrote in a letter to Treasury Secretary Timothy Geithner dated Oct. 13.

The Treasury figure "failed to meet transparency standards" by not disclosing the exact nature of the new methodology, according to the report. Treasury has denied making any change in its methodology.

Barofsky's report also emphasized the broader claim that a lack of transparency from Treasury, mismanagement of some TARP programs, and flawed decision-making processes have fostered mistrust among the public.

The report says that while Wall Street benefited from the Troubled Asset Relief Program, "Main Street has largely suffered alone, however, in those areas in which TARP has fallen short of its other goals."

"Indeed, even now, overall lending continues to contract, despite the hundreds of billions of TARP dollars provided to banks with the express purpose to increase lending."

Barofsky noted that while TARP may have helped to mitigate potential job losses, the 9.6 unemployment rate is higher than it was at the program's inception.

Treasury's promotion of its mortgage modification program "without meaningful goals or metrics," and the department's ongoing assertions that all banks receiving taxpayer investments through TARP's Capital Purchase Program were healthy (even when it knew "full well that some are not") has continued to erode the public's trust, the report said.

The Government Accountability Office recently called 12 percent of the CPP banks "marginal applicants."

If Treasury wants to improve the perception of TARP, the report said, "it must elevate transparency above other short term concerns in its communication with the American people."

Although the report praised the rapidly declining estimates of the cost of TARP -- $66 billion was the Congressional Budget Office's latest prediction -- there are greater concentrations in the financial sector, moral hazard has increased, and "the biggest banks are bigger than ever." 

CAPITAL PURCHASE PROGRAM

The report also revealed for the first time that Treasury has appointed observers to the boards of 14 financial institutions that got public aid through TARP but have fallen behind on their dividend payments they owe taxpayers.

According to Barofsky's report, 137 institutions that got aid through the Capital Purchase Program have missed dividend payments, including eight that missed at least six payments and 16 that missed five.

Treasury can appoint members to a TARP recipient's board once it has missed six payments. Observers can be appointed once five are missed.

As of Sept. 30, Treasury had not appointed any directors to the boards of banks that have been skipping payments, the report said.

HOME AFFORDABLE MODIFICATION PROGRAM

Barofsky's organization also took the opportunity to elaborate on its continued criticism of the Home Affordable Modification Program, saying that initiative has fallen "woefully short" of preserving homeownership. TARP has funded just 207,000 of the 467,000 permanent mortgage modifications that have been granted under the HAMP program. That's compared to 5.5 million foreclosure filings made since January 2009.

Just $483.3 million in TARP money has been spent on HAMP, even though Treasury originally committed to using $50 billion in TARP funds on that effort.

Now, Treasury finds itself defending a program that is clearly failing to meet the goal of promoting homeownership, Barofsky wrote. Over the last quarter, HAMP produced a net increase of fewer than 26,000 permanent modifications per month. Meanwhile, new trial modifications have slowed to fewer than 29,000 per month, "signaling that the anemic pace of permanent modifications may only get even worse."

The reported chided Treasury for consistently touting the number of trial modifications that the program has handed out as an indication of success. Either Treasury has a warped public relations strategy or is out of touch, the report said.

"Treasury's decision to declare such uniform success for so many failures disregards the harm and suffering that often accompany failed trial modifications," Barofsky's report said, adding that families with HAMP trials often spend extra money in a futile attempt to get save their homes.

In the process, they often suffer damaged credit scores, or wind up with increased outstanding principal on the loans.

The report also re-printed many of the complaints that Barofsky's office has received from borrowers whose mortgage servicers allegedly violated HAMP guidelines by losing paperwork and keeping homeowners in trial modifications limbo.

Despite the complaints, "no financial penalities have been imposed by Treasury on any servicers participating in the program, although according to Treasury, it has 'imposed non-financial remedies which have resulted in servicers re-evalualting homeowners' HAMP eligibility.'"

PAY CZAR

The report also revealed that SIGTARP is continuing to investigate the constitutionality of the position of Special Master of TARP Executive Compensation, also known as the "pay czar." The job was formerly held by Kenneth Feinberg, who was charged with setting the the compensation of the top 25 executives at TARP recipients who got "exceptional" aid.

The position is appointed by the Treasury Secretary and does not require Senate approval. Barofsky initially contacted the Treasury Department with questions about the constitutionality of the position a year ago.

Barofsky requested a legal opinion on the matter from the Justice Department in an Aug. 20 letter. Essentially, the matter boils down to whether the pay czar is subordinate to the Treasury Secretary. If he or she is not, then there may be constitutional issues.

NEW AUDITS

The report also revealed three new audits it is conducting on TARP issues.

  • Hardest Hit Fund: Rep. Darrell Issa (R -- Calif.) requested the audit to examine the extent to which Treasury applied consistent and transparent criteria in selecting states that would receive money through the program, which provides funding to state housing finance agencies that develop their own home-preservation programs. So far, the program has allocated $7.6 billion to 18 states and Washington, D.C.
  • Deferred tax assets: Rep. Dennis Kucinich (D -- Ohio) sought the audit to examine whether Treasury was aware of the impact of a new IRS rule that saved Citigroup tens of billions of dollars.
  • AIG severance payments: Sen. Chuck Grassley (R -- Iowa) sought the review of executive compensation regulations issued by Treasury relating to severance payments of former AIG executives. The report is also "examining the circumstances of an alleged conflict of interest within the Office of the Special Master" but does not provide elaboration.

Barofsky's office has eight previously-announced audits that remain ongoing as well as 130 criminal and civil investigations.

 

Ag Groups Write EPA on TMDL Proposal and Water Quality Strategy

 

THE ARCADIAN MANIFESTO AND ITS CONSEQUENCES

Regarding questions about the U.S. Environmental Protection Agency's promotion of “beneficial uses” and the close ties between those EPA efforts and industry lobby groups (see posts here and here ).

Now this week, a report from the EPA's own Inspector General has some criticism of the agency's actions regarding a Web site promoting “beneficial uses”:

EPA's C2P2 Website presented an incomplete picture regarding actual damage and potential risks that can result from large-scale placement of CCRs. In its May 2010 proposed rule, EPA showed that environmental risks and damage can be associated with the large-scale placement of unencapsulated CCRs. According to EPA's proposed rule, unencapsulated use of CCRs may result in environmental contamination, such as leaching of heavy metals into drinking water sources. The proposed rule identified seven cases involving large-scale placement, under the guise of beneficial use, of unencapsulated CCRs, in which damage to human health or the environment had been demonstrated. EPA states in its proposed rule that it does not consider large-scale placement of CCRs as representing beneficial use. However, EPA's C2P2 Website, which contained general risk information, did not disclose this EPA decision and did not make the seven damage cases readily accessible.

The C2P2 Website also contained material that gave the appearance that EPA endorses commercial products. Such an endorsement is prohibited by EPA ethics policies and communications guidelines. We identified 9 of 23 case studies on the Website that reference commercial products made with CCRs or patented business technologies. All 23 of the studies were marked with EPA's official logo but none had the required disclaimer stating that EPA does not endorse the commercial products.

Although EPA has suspended active participation in C2P2 during the rulemaking process, the C2P2 Website remained available for public searches, information, and education. The C2P2 Website contained incomplete risk information on the beneficial use of CCRs. The C2P2 Website also contained apparent or implied EPA endorsements that are prohibited by EPA policies.

How Sites are Deleted from the NPL


EPA must delete a final NPL site if no response was required to protect human health or the environment.

Guidance for Deleting Sites from the National Priorities List

Templates for direct final deletion notices are available at: http://www.epa.gov/superfund/programs/npl_hrs/tempdel.pdf

THE STATE OF CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCE CONTROL (DTSC) MUST RETRACT AND APOLOGIZE FOR THIS PROPAGANDA

BENEFICIAL, NUTRITIOUS AND ESSENTIAL TO MOST PLANTS AND ANIMALS, ESPECIALLY HUMANS

THE ONLY AQUATIC ORGANISM THE GOVERNMENT CLAIMS TO REPRESENT FOR DAMAGES AGAINST MR. T.W. ARMAN AND IRON MOUNTAIN MINES, INC. UNDER THE ENDANGERED SPECIES ACT IS WINTER RUN CHINOOK SALMON, THE UNITED STATES BAIRD HATCHERIES' HYBRID SPORT FISH OF THE EXTINCT MCCLEOD RIVER, WHICH WAS EXTERMINATED BY CONSTITUTIONAL REFERENDUM OF THE PEOPLE OF CALIFORNIA IN 1934 AND EXECUTED WITH THE CONSTRUCTION OF THE SHASTA DAM BY THE UNITED STATES IN 1943.

ALL SPECIES OF FISH ARE AND HAVE ALWAYS BEEN HEALTHY AND GOOD TO EAT IN THE CABECERA DEL RIO DE BUENAVENTURA (Maps by Albert Finley (1826) Albert Gallatin (1836) & Charles Drayton Gibbes (1851) labels the current Sacramento River as the Buenaventura) TRUST WATER HABITATS OF NOAA BELOW KESWICK DAM.

TOXICITY THRESHOLD? HOW ABOUT WE ALL DESPERATELY NEED THESE ESSENTIAL NUTRIENTS.

THE ONLY FISH KILLS WE COULD VERIFY WERE CLEARLY CAUSED BY THE CONSTRUCTION OF THE UNITED STATES CALIFORNIA DAMS.

SURE DO GET SOME BARREN HILLS AND MUDDY RUN-OFF AFTER YOU LET THE FOREST BURN UP.

THERE ARE NO MERCURY OR METHYL-MERCURY HAZARDS AT IRON MOUNTAIN MINE, AND THE DISSOLVED METALS ARE IRON, COPPER, ZINC, SILVER, AND GOLD. SEEMS MORE LIKE THE GROUND WATER IS A HAZARD TO US GETTING THE METALS OUT.

POTENTIAL THREAT? NOW I GET IT. YOU WOULDN'T KNOW AN ACTUAL THREAT UNTIL IT BIT YOU.

MAJOR IMPACTS? MORE LIKE MAJOR IMPROVEMENTS; SINCE WHEN IS THAT A CRIME?

IF IT WAS IDENTIFIED SO EARLY IN CALIFORNIA, WHY IS THE FEDERAL EPA HERE NOW?

WHAT SOLUTION? SPEAKING OF WHICH, WHAT ABOUT THOSE DAM IMPROVEMENTS?

CERCLA IMMINENT HAZARD
MINING AND MINERAL PROCESSING FACILITIES
Office of Solid Waste
U.S. Environmental Protection Agency
February 1997

CHAPTER 1. OVERVIEW
Section 106 of the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA) provides for abatement action by a State, local government, or the President, when
there exists an “imminent and substantial endangerment to the public health or welfare or the
environment because of an actual or threatened release of a hazardous substance.” In addition, Section
106 contains severe penalties for noncompliance, forcing potentially responsible parties to clean up a
site, or pay as much as $25,000 a day. These orders are EPA’s means of enforcement, which achieve
cleanup at sites posing significant threat to human health and the environment where negotiations over
Superfund cleanups have failed. CERCLA § 106 authority has been invoked in response to hazards
posed by a substantial number of abandoned mining and mineral processing sites. This document
summarizes available information for forty CERCLA § 106 actions taken at these sites.
The information used to develop this document was taken from a number of sources: the
Superfund Emergency Response Actions Library; the EPA RODS Database; the CERCLIS Database;
National Priority List Fact Sheets (http://www.superfund/oerr/impm/products/nplsites/usmap.htm.); the
Right-to-Know Network (http://www.RTK.NET); U.S. Environmental Protection Agency, Office of
Solid Waste, Mining Sites on the NPL - Draft, 1995; U.S. Environmental Protection Agency, Office of
Solid Waste, Mining Waste National Priorities Site Summary Report- Final Draft, 1991; U.S.
Environmental Protection Agency, Action Memorandum, for a number of sites; and other Regional
documents collected from Superfund Record Centers in Regions V, VIII, and X.
The table below, Exhibit 1, summarizes the information available in this document for each
site, including site name and location, source of contamination, cost of cleanup, and the nature of the
damage resulting from the contamination. Detailed information for each site listed is provided in
Chapter 2. Sites are grouped by State and listed alphabetically for each State.

Exhibit 1

Site

Source of Contamination

Cost of Cleanup

Nature of Damage

Name

State

 

 

Ground water

Surface water

Human Exposure

Other

Iron Mountain Mine

CA

Mining and processing of copper, silver, gold, zinc, and pyrite.

$68.1 million

 

Contaminated by sulfuric acid, copper, zinc, and cadmium.

Potential for human health risk.

Potential for accumulation of contaminants in fish. Steady decline in nearby fish populations.

Site Overview: This site is located nine miles northwest of Redding , California . From 1865 to 1963, this site was mined for iron, silver, gold, copper, zinc, and pyrite. Underground mine workings, waste rock dumps, piles of ore mine tailings, and an open mine pit still remain at the site today. Surface water has been contaminated by sulfuric acid, zinc, copper, and cadmium.

 

Site Mining Activity: From 1865 to 1963, this 4,400-acre site was used for the mining and processing of copper, silver, gold, zinc, and pyrite. Although mining operations were discontinued in 1963, underground mine workings, waste rock dumps, piles of ore, mill tailings, and an open mine pit remain at the site. In recent years, metal recovery activity has been limited to extracting copper from acid mine drainage using copper cementation.

Nature and Type of Contamination: The mining activity at this site fractured the mountain, exposing minerals in the mountain to surface water, rain water, and oxygen. Exposure of pyrite to moisture and oxygen resulted in the formation of sulfuric acid. This sulfuric acid runs through the mountain and leaches out copper, cadmium, zinc, and other heavy metals, flowing out of the seeps and portals of the mine. Much of the drainage is

channeled into the Spring Creek Reservoir by creeks surrounding the site. Nature of Environmental Damages: Surface water has been contaminated by the release of sulfuric acid, copper, zinc, and cadmium from the mine. Accidental ingestion or direct contact with contaminated water or mine drainage poses a human health risk. There is a potential for accumulation of contaminants in fish. The unplanned release of contaminants acutely toxic to fisheries into Spring Creek Reservoir has led to the steady decline in fish populations and contributed to the listing of the Winter Run Chinook Salmon as an endangered species.

Type of Cleanup Utilized: This site is being addressed in five stages: emergency actions and four long-term remedial phases focusing on water management, and cleanup of Boulder Creek, the Old Mine/No. 8 Mine, and the entire site. The Spring Creek Debris Dam was constructed in 1963 to act as a sediment basin and to control acid mine drainage. Cementation plants were constructed in 1940 and 1977 to recover copper from the drainage. In February 1989, EPA constructed an emergency lime neutralization plant to reduce metal discharges from the site by 50 percent.

Estimated or Actual Costs of Cleanup: The cost of cleanup has been estimated at $68.1 million.

Party(ies) Responsible for the Action: This site is being addressed through Federal and potentially responsible parties' actions.

SEWER, semera; query, from sevoir, to sit, and eau, water. Termes de la Ley.] A fresh water trench, or little river encompassed with banks on both sides, to carry the water into the sea, and thereby preserve the lands against inundations, &c.

The court of sewers is a temporary tribunal, erected by virtue of a commission under the great seal.

The kings of England used to grant commissions of sewers long before any statute was enacted in parliament for the purpose; and during the reigns of King Henry VI., Edward IV., and Henry VII., several statutes were made for appointing commissions of sewers in all parts of the realm where needful; some to endure ten years, some fifteen years, and others five years, &c. with certain powers to the commissioners ; which commissions, by 23 Hen. 8. c. 5. were to be settled by the lord chancellor, lord treasurer, and the two chief justices,, or any three of them, whereof the lord chancellor to be one; and by this law, the commissioners' oath was appointed; they were to be qualified as to estates, by having lands, tenements, or hereditaments, in fee for life, worth forty marks per annum, besides reprises; (except they were resident in and free of a corporation; and had moveables worth 100/.:) and if they executed the commission, not being thus qualified, or before sworn, they incurred a forfeiture of 40/. Now see the recent statute, post.

The said 23 Hen. 8. c. 5. § 17. directed that laws, acts, decrees, and ordinances made by commissioners of sewers should stand good and be put in execution so long as the commission endured and no longer; except the said laws and

ordinances were engrossed in parchment, and certified under the seals of the commissioners into Chancery, and had the royal assent: and the 13 Eliz. c. 9. directed that all commissions of sewers should continue in force for ten years, unless sooner determined by supersedeas or new commission : and that all laws, ordinances, and constitutions made by force of such commission, being written in parchment, indented and under seal, should without such certificate or royal assent continue in force notwithstanding the determination of the commission by supersedeas until repealed or altered by new commissioners; and that all laws so sealed should without certificate or royal assent, be in force for one year after the determination of such commission by the expiration of ten years from its teste. But see now the recent statute, post.

The court of commissioners of sewers is classed by Blackstone among those whose jurisdiction is private and special; their jurisdiction being confined to such county or particular district as the commission expressly names. The commissioners are a court of record, and may fine and imprison for contempts. 1 Sid. 145. And in the execution of their duty may proceed by a jury (who may amerce for neglects) or upon their own view ; and may take order for the removal of any annoyances, or the safeguard and conservation of the sewers within their commission, either according to the laws and customs of Romney Marsh (see that title), or otherwise at their own discretion ; but they may not imprison persons for disobedience to their orders; nor can they intermeddle where there is not a public prejudice. Laws Sew.; 3 Comm. c. 6.

The sea, creeks, and bays on the coasts, are all within the statutes of sewers, in point of extent; but they and the shores and the relinquished grounds are out of the commission of sewers to be determined thereby; but ports and havens, as well as the walls and banks of waters, are within the commission of sewers; and the shore and grounds left by the sea, when they are put in gainage and made profitable, are then within the power of commission of sewers: and though before the ground left by the sea is not, as to defence, within the commission of sewers; yet a wall or bank may be thereon raised for the succour of the country, although not for any private commodity, the commission of sewers aiming at the general good. Callis, 31, 32.

The commissioners of sewers have jurisdiction over a sewer communicating with a navigable stream, or with the sea above the point where the tide ebbs and flows, if it be useful for navigation, and if the place over which the jurisdiction is exercised, is, or is likely to be, benefited by it. 2 T. R. 358.

The business of the commissioners of sewers is to repair sea-banks and walls, survey rivers, public streams, ditches, &c. and make orders for that purpose. They have authority grounded on the statute to inquire of all nuisances and offences committed by the stopping of rivers, erecting mills, not repairing of banks and bridges, &x. and to tax and assess all whom it may concern, for the amending of defaults, which tend to the obstruction or hindrance of the free passage of the water through its ancient courses: and they may arrest carts and horses, and take trees, paying a reasonable price for them, for reparations; appoint workmen, bailiffs, surveyors, and other officers, &c. Termes de la Ley, 541; 4 Inst. 275 ; Laws Sew. 86, 96.

Upon the 23 Hen. 8. c. 5. the commissioners decreed that a new river should be made out of another large river through the main land for seven miles unto another part of the old river; and for that purpose they laid a tax of a sum in gross upon several towns: adjudged that the commissioners have no power to make a new river, or any new invention to cast out water, &c, for such things are to be done in parliament; but they may order an old bank to be new made, or alter a sewer upon any inevitable necessity. The tax of a sum in gross was not warranted by their commission, they being to tax every owner or possessor of the lands according to the quality of their lands, rents, and number of acres, and their respective portions and profits, whether of pasture, fishing, &c. 10 Rep. 141. See the powers given to the commissioners by the late statute, post.

The commissioners of sewers cannot assess a person, in respect of drains which communicate with other drains that fall into the great sewer, if the level of his drain is so much above the sewer that the stopping of the sewer could not possibly throw back the water so as to injure his premises, and if he be not, and it does not appear that he is, likely to be benefited by the works done upon the sewer. 3 M. fy S. 447.

There are several causes and considerations for which persons may be obliged to repair and maintain sewers, as frontagers were bound to the repairs of the walls and banks, &c. by reason of frontage. 37 Lib. /Issis. pi. 10. The being owner of a bank, wall, or other defence, is a sufficient inducement to impose the charge of the repairs thereof upon such owner. 1 Hen. 7. Prescription and custom are much of the same nature, and the law takes notice of them in this case ; but prescription doth not bind a man to the repairs, except it be ratione tenures. 21 Edtv. 4. 38 ; 19 Hen. 7. By tenure of land, a person may be bound to repair a wall, bank, or defence, mentioned in the statute of sewers. 12 Hen. 4. A man may bind himself and his heirs by covenant expressly to repair a bank, wall, or sewer, and be good ; yet this shall not bind the heir after his death, where assets are not left from the ancestor, who entered into the covenant. Callis's Reading on Sewers. That this is a good authority on the subject of sewers, see 2 T. R. 365.

The use of defences may tie a man to the reparation thereof, if one and his ancestors have had the use of a river by sailing up and down the same, or have used a ferry on or over it, &c. If no person or grounds can be known, who ought to make repairs by tenure, prescription, custom, or otherwise, then the commissioners are to tax the level. Laws Sewers, 57, 67, 68.

If a sea-bank or wall, which the owners of particular lands are bound to repair, be destroyed by tempest, without any default in such owners, the commissioners of sewers may order a new one, even in a different form, if necessary, to be erected at the expense of the whole level. 8 T. R. 312.

By the 3 & 4 Wm. 4. c. 22. the laws relating to sewers have been amended. The following is an outline of the principal provisions of the act.

By § 1. the qualification of the commissioners is increased.

And § 2. Quakers may act as commissioners, upon making an affirmation.

§ 3. imposes an oath of qualification to be taken by other commissioners before acting, in addition to the oath prescribed by the 23 Hen. 8.

§ 4. imposes a penalty of 100Z. on persons acting not qualified. But proceedings are not to be impeached on account of disqualification.

By § 5. ex-officio commissioners are not required to qualify.

By § 6. every commission of sewers is' to continue for ten years, unless renewed or repealed by writ of supersedeas.

By § 7. all laws, decrees, and ordinances, made by any court of sewers, and duly registered in the rolls of such court, are to continue in force notwithstanding the expiration of the commission, and although not ingrossed in parchment, or not certified into the Court of Chancery.

§ 8, 9. regulate the meetings of the commissioners.

§ 10. after reciting that doubts have arisen as to the extent of the jurisdiction of commissioners of sewers, enacts, that all walls, banks, culverts, and other defences whatsoever,

whether natural or artificial, situate or being by the coasts of the sea, and all rivers, streams, sewers, and watercourses, which now are or hereafter shall be navigable, or in which the tide now does or hereafter shall or may ebb and flow, or which now do or hereafter shall or may directly or indirectly communicate with any such navigable or tide river, stream, or sewer, and all walls, banks, culverts, bridges, dams, floodgates, and other works erected or to be erected upon or adjoining to any such river, streams, sewers, or watercourses, shall be within and subject to the jurisdiction of commissioners of sewers : provided, that nothing therein contained shall empower any commissioners of sewers to exercise authority over any dams, floodgates, or other works erected for ornament, previous to the act, in, upon, or over any rivers, streams, ditches, gutters, sewers, or watercourses near or contiguous to any house or building, or in any garden, yard, paddock, park, planted walk, or avenue to a house, without the consent in writing of the owner or proprietor thereof respectively first obtained.

§ 11 & 12. specify the manner in which juries are to be summoned to make inquiries or presentments either under the old law or that act.

§ 13. declares that a presentment of a jury shall not be necessary upon each occasion to repair.

By § 14. rates are to be made for every distinct level or district.

But (§ 15.) nothing therein contained is to discharge persons from liability by tenure, &c.

And by § 17. nothing contained in the act is to preclude courts of sewers from causing inquiry and presentment by jury as before.

By § 18. rates are to be apportioned between outgoing and incoming tenants.

By § 19. any court of sewers may decree and ordain any new walls, banks, sewers, guts, gotes, calcies, bridges, tunnels, culverts, sluices, floodgates, tumbling bays, cuts, or other works, aids, and defences, or any alteration in the gauge, dimension, course, direction, or situation of any old or existing wall, &c. to be constructed, for the more effectually defending any lands and premises within the jurisdiction of such court against the irruption of the sea, or for carrying off* the superfluous fresh waters, and also, in like manner and at their discretion, may decree any former walls or defences against the sea, or against any rivers, streams, sewers, or watercourses, within their commission, to be abandoned and given up, and new defences and walls, banks, sluices, floodgates, tumbling bays, cuts, and other works to be made and continued in lieu thereof; and in every such case may direct, by inquiry and presentment of a jury, in what manner and proportions the same shall thereafter be repaired and maintained by the person, body politic or corporate, deriving advantage or avoiding damage thereby or therefrom, having regard to previous liabilities in respect of the walls and defences so to be abandoned.

Provided (§ 21.) that no new works are to be made without the consent of the owners and occupiers of three-fourth parts in value of the lands to be charged.

§ 22. Occupiers of land adjoining sewers may take away soil and weeds from the banks for their own use.

And (§ 23.) upon neglect of occupiers to remove soil, surveyors may remove it.

By § 24. the commissioners are authorized to contract for the purchase of lands, &c.

And (§ 26.) where persons shall neglect or refuse to treat, &c. commissioners are to issue their warrants to the sheriff" to impanel a jury. The jury may be challenged. Witnesses are to be summoned and examined upon oath ; and the jury are to assess damages ; and their verdict to be binding.

By § 27. commissioners may impose a fine on the sheriff*, witnesses, &c. making default.

§ 39. enables commissioners to sell lands, &c. which are not wanted ; and the first offer is to be given to the owners of adjoining grounds.

§ 41. empowers the courts of sewers to borrow and take up money at interest for making and maintaining works.

And (§ 42.) the courts of sewers may grant securities to persons advancing money in the form therein set forth.

And (§ 43.) such securities may be transferred.

USING SEWER SCIENCE TO SEE IF YOUR HATS ON STRAIGHT

By § 44. courts of sewers may be held out of the limits of the commission, at any place not exceeding five miles from such limits.

And by § 45. all acts of commissioners done without the district of the commission, but within five miles thereof, are declared valid.

By § 46. several defaults may be included in one presentment, and separately traversed.

By § 52. constables, &c. are to obey orders of commissioners.

And (§ 53.) fines, &c. may be levied by warrant of commissioners of sewers.

§ 55. Commissioners may decree and assess costs ; and in default of distress may raise the same upon the lands of the defaulters.

§ 57. Commissioners of sewers may sue and be sued in the name of their clerk.

By § 61. the act is not to prejudice any local act.

And by § 62. the rights of the city of London are saved.

The 3 Jac. 1. c. 14. ordains that all ditches, banks, bridges, streams, and watercourses, within two miles of London, falling into the Thames, shall be subject to a commission of sewers ; and the lord mayor, &c. is to appoint persons who have power of commissioners of sewers.

The conduct of commissioners of sewers is under the control of the Court of King's Bench, which will prevent or punish any illegal or arbitrary proceedings. Cro. Jac. 336. And yet in the reign of King James I. (8th Nov. 1616) the privy council took upon them to order that no action or complaint should be prosecuted against the commissioners unless before that board, and committed several to prison who had brought such actions at common law, till they had released the same; and one of the reasons for discharging Sir Edward Coke from his office of lord chief justice was for countenancing those proceedings at law. Moor, 825, 826 ; see 3 Comm. 55, 74. But now it is clearly established that this (like other inferior jurisdictions) is subject to the discretionary coercion of the Court of King's Bench. 1 Vent. 66, 67 ; Salk. 146.

If it is found before commissioners of sewers that a certain person ought to repair a bank, and this is removed into B. It., the court will not quash the inquisition, or grant a new trial, except he repair it; and if afterwards he is acquitted, he shall be reimbursed. Sid. 78. In case of sewers the Court of King's Bench inquire into the nature of the fact before they grant a certiorari to remove orders, that no mischief may happen by inundations in the mean time, which is a discretionary execution of their power. 1 Salk. 146.

The court commonly hears counsel on both sides, where orders of commissioners of sewers are removed by certiorari, before such orders are filed ; for if good, the court will grant a procedendo, which cannot be done after they are filed ; but they will file them in any case where there is no danger likely to ensue. 1 Salk. 145. If commissioners of sewers proceed after a certiorari delivered out of B. R. attachment will issue against them, and they may be fined. 3 Nek. Abr. 218.

Orders of sewers being removed by certiorari, the court would not file the orders till they had heard the objections debated, so as to have it in their.power to send the orders back again. 2 Str. 1263. The court held, that a certiorari to bring up an order made by the commissioners for the removal of their own clerk, was of common right, and not dis

cretionary, as in the case of other orders, where great inconveniences may follow by inundations. 1 Str. 609.

With respect to offences committed against the property of the commissioners of sewers, see Indictment, V.

As to breaking down sea-banks and sea-walls, and persons removing piles, &c. see Malicious Injuries.

By the 31 EUz. c. 6. corrupt elections and resignations, in colleges, hospitals, and other eleemosynary corporations, are also punished with forfeiture of double the value, vacating the place or office, and a devolution of the right of election for that turn to the crown. §§ 2, 3

Asarco wants to join legal fight over EPA records

Posted: Oct 19, 2010 By JOSH FUNK
AP Business Writer

OMAHA, Neb. (AP) - The Asarco mining company wants to join Union Pacific's legal fight over Environmental Protection Agency records about lead contamination in Omaha, because Asarco hopes to recover millions from companies involved in the contamination.

The information Union Pacific and Asarco want relates to 5,600 lead-contaminated properties in Omaha. The EPA and Union Pacific have been trying for years to settle who should pay several hundred million dollars to clean up the lead.

The Omaha-based railroad sued in June after obtaining e-mails in which EPA officials discussed deleting records.

Asarco paid $200 million as part of a settlement with the EPA because it ran a lead smelter in Omaha for more than 50 years before the smelter closed in 1997. Asarco did not admit fault in the settlement.

Attorney Greg Evans said the EPA documents might help Asarco recover compensation from companies that contributed to the contamination.

"We need to make sure we have a clear understanding of the cause of the contamination," Evans said.

EPA officials did not immediately respond to messages Tuesday.

Union Pacific is also trying to learn what caused the lead contamination because the railroad argues that lead house paint is the real problem. The EPA blames industrial sources of lead, especially Asarco's smelter, for the contamination, and Asarco's smelter operated on land leased from UP for several years before Asarco bought the land in 1946.

Railroad officials hope the records they are requesting will prove that Union Pacific isn't responsible for the contamination.

Union Pacific spokesman Tom Lange said the railroad supports Asarco's petition to become a plaintiff in the lawsuit.

But a federal judge will determine whether Tucson, Ariz.-based Asarco is allowed to join the case.

Before Asarco's motion was filed Monday, mediation talks between Union Pacific and the EPA were scheduled to begin Nov. 12. A computer expert has also been assigned to review the EPA's data and its plan to protect information.

Union Pacific said in its lawsuit that the document destruction may date back to at least 2004. The company quoted several e-mails in which an EPA supervisor encourages employees to delete messages so the railroad won't be able to obtain the information under the Freedom of Information Act.

Union Pacific said the EPA responded slowly to the records requests it submitted in 2002, 2003, 2004 and 2009. The railroad said it found the e-mails about destroying documents buried in more than 1.1 million pages of records the EPA did provide, but is not sure whether the agency provided everything requested.

Asarco has asked for some of the same information Union Pacific is seeking, and Evans said Asarco filed its own lawsuit in 2008 over the EPA's response to its requests.

Much of eastern Omaha has been designated a superfund site by the EPA because of the extent of lead contamination, which can endanger children's health, causing decreased intelligence, slow growth and behavior problems. The EPA has been working to clean up the site for several years.

The EPA has already removed and replaced the soil at nearly 6,000 properties in Omaha. The total cost of the EPA cleanup is likely to exceed $400 million, according to agency estimates.

Liberty, by the English law, depends not on the complexion; and what was said even in the time of Queen Elizabeth is now substantially true, that the air of England is too pure for a slave to breathe in. 2 Rushw. 46

Home » Agencies » ENRD » About the Division » Organization » EDS » History

Evolution of the Section

The Environmental Defense Section (EDS) traces its roots to 1971.  In that year, in response to an increasing awareness of the adverse effects of environmental degradation on the public health and welfare, the Pollution Control Section was added to the Land and Natural Resources Division with the special mission of handling all civil and criminal litigation under environmental regulatory statutes such as the Clean Air Act.  In October 1979, the Division created the Hazardous Waste Section to begin enforcement with respect to hazardous wastes under the 1976 Resource Conservation and Recovery Act (RCRA) and other authorities.

In March 1980, the Hazardous Waste Section's mandate was expanded to include cost-recovery litigation pursuant to the Uranium Mill Tailings Radiation Control Act.  In that same year, the Division decided to separate enforcement and defense litigation responsibility, which led to the division of the Pollution Control Section into the Environmental Enforcement Section and the Pollution Control Section, respectively.

In 1981, the original Pollution Control Section was renamed the Environmental Defense Section. The Hazardous Waste Section's affirmative and defensive components were merged into the Environmental Enforcement Section and the Environmental Defense Section, respectively.

Federal Regulatory Jurisdiction over Wetlands under the Clean Water Act (CWA)

The Environmental Defense Section has played an important role in the development of many key aspects of modern environmental law.  One good example involves federal regulatory jurisdiction over wetlands under the CWA. EDS prosecutes civil violations of these provisions and defends Army Corps of Engineers permit decisions and other wetlands-related actions of EPA and the Corps.

In 1985, the Supreme Court endorsed a relatively expansive understanding of federal jurisdiction over wetlands in United States v. Riverside Bayview Homes , in a case arising out of a civil wetlands enforcement action in Michigan.  In ruling in the government's favor, the Supreme Court held that "waters of the United States" regulated under the Clean Water Act was properly interpreted by the Corps to include adjacent wetlands.

Over the next quarter century, EDS has been at the forefront of litigation involving the crucial question of just how far these "waters of the United States" extend.  So far, these questions have resulted in two additional Supreme Court decisions, Solid Waste Agency of Northern Cook County v. Corps (2001) (CWA jurisdiction does not extend to so-called "isolated" waters and wetlands), and Rapanos v. United States (2006) (considering extent of CWA jurisdiction over relatively smaller and more intermittent waters), as well as scores of lower court decisions. In all these cases, the factual and legal arguments developed by EDS attorneys have helped shape the development of the law in this important and controversial area.

Nature and Scope of EPA's Regulatory Authority under the Clean Air Act (CAA)

EDS has also played a key role in the development of the law involving the nature and scope of the Environmental Protection Agency's (EPA) regulatory authority under the CAA. By statute, petitions for review of EPA final actions under the CAA begin in the courts of appeals, and EDS handles this appellate practice.

One of the most prominent recent cases of this sort was Massachusetts v. EPA (2007), which considered the extent of EPA's authority to regulated emissions of greenhouse gases to address global climate change. The D.C. Circuit initially upheld an EPA determination that the Agency did not possess such authority, but in 2007, the Supreme Court reversed this decision, and in so doing, ushered in a new era of brisk regulatory and legislative action to address greenhouse gases and climate change.

While climate issues today are one of the most prominent of the regulatory issues under the Clean Air Act, ever since the enactment of the modern CAA in the 1970s, EDS has defended scores of important cases addressing the regulation of a variety of emissions from all types of stationary and mobile sources. These cases also frequently raise significant administrative law issues, so EDS attorneys have been active participants in the development of modern jurisprudential principles in areas such as standing, Chevron deference, and the scope of judicial review of agency actions.

Evolution of the Federal Superfund Cleanup Law

EDS attorneys have also played an important role in the evolution of the federal Superfund cleanup law, CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act). In the early 1980s, shortly after CERCLA was enacted, EDS played a large role in defending the statute against a torrent of broad-based challenges to its constitutionality and fairness. In fact, Congress ratified many of the results obtained in these cases when it adopted the Superfund Amendments and Reauthorization Act (or "SARA") in 1986. These judicial decisions and legislative action -- very controversial at the time -- created the fundamental cleanup and cost recovery mechanisms that are so familiar to, and effectively used by, EPA and the regulated community today.

As the program has matured, it has also spawned new legal questions -- such as the contribution issues addressed by the Supreme Court in Cooper Industries v. Aviall Services (2004) and Atlantic Research Corp. v. United States (2007), and in liability issues such as those addressed by the Court in its very recent decision in Burlington Northern v. United States (2009). The Environmental Defense Section frequently handles cases raising these sorts of issues in the lower courts when it defends federal agencies alleged to have contributed to hazardous waste sites. EDS also has played, and continues to play, a very important role in the development of natural resource damages (NRD) law under CERCLA, as it pertains to state NRD claims against federal agencies.

Other Defensive Environmental Litigation

Today, the Environmental Defense Section participates in a broad spectrum of environmental litigation, including:

  1. defending client agency programs and initiatives;
  2. enforcing the wetlands protection provisions of the Clean Water Act and the Rivers and Harbors Act;
  3. resolving federal agency liability equitably in cases under CERCLA; and
  4. representing the United States as a defendant or respondent in cases brought under various pollution control statutes, including the CAA, CWA, Safe Drinking Water Act, Toxic Substances Control Act, and RCRA.

Defending agency programs and initiatives represents the largest segment of the Section's practice. These include regulatory actions by the EPA and U.S. Army Corps of Engineers (Corps). In these cases, EDS defends rulemakings that represent the culmination of years of agency effort and significant investment of agency resources. Other components of this practice include defending federal agencies' implementation of their statutory and regulatory mandates through defense of challenges to permit decisions, administrative orders and civil penalty claims. This litigation occurs in the district courts and in original actions in the courts of appeals throughout the country.

Enforcing the wetlands laws under section 404 of the Clean Water Act and Sections 10 and 13 of the Rivers and Harbors Act constitutes approximately 10 percent of EDS's docket. These cases play a critical role in protecting the Nation's wetlands and navigable waterways from illegal and harmful development and in preserving important ecosystems. EDS also brings civil enforcement actions for the unauthorized placement of obstructions in navigable waters and the impairment of the reach, flow, or capacity of those waters under section 10 of the Rivers and Harbors Act of 1899.

Federal agency CERCLA liability cases constitute over a quarter of the Section's practice. In this ever-expanding area of the docket, the Section works to fairly resolve federal agency liability, thereby protecting the federal fisc against excessive claims while ensuring that the government pays its “fair share” of environmental cleanup costs.

Lastly, EDS handles novel, high-profile cases brought by states or environmental groups, alleging that federal agencies have violated requirements of the environmental laws , which typically apply to the federal government in the same manner, and to the same extent, as they apply to private parties. In addition, EDS handles a number of bankruptcy proceedings and state law actions. These areas of the docket comprise about 10 percent of the Section's workload.

 

VETERANS ‘IN THE DARK' ABOUT ENVIRONMENTAL HAZARDS

In fact, there had never been kept up any regular army in England. Henry VII. established the Yeomen of the Guard in 1485, solely for the defence of his person; and rather perhaps, even at that time, to be considered as the king's domestic servants than as soldiers. Their number was at first fifty, and seems never to have exceeded two hundred. A kind of regular troops, however, chiefly accustomed to the care of artillery, were maintained in the very few fortified places where it was thought necessary or practicable to keep up the show of defence. The Tower of London, Portsmouth, the castle of Dover, the fort of Tilbury ; (and before the union of the crowns, Berwick, and some other places on the Scotch border); but very little is to be met with on the nature of these garrisons : their whole number must have been insignificant, and probably at no time capable of resisting any serious attack.

Care must be taken not to confound this strictly military force, serving, whether by virtue of tenure or engagement, wheresoever it should be called, with that of a mere domestic and defensive character, to which alone the name of Militia was usually applied. By the Anglo-Saxon laws, or rather by one of the primary and indispensable conditions of political society, every freeholder, (if not freeman,) was bound to defend his country against hostile invasion. It appears that the alderman, or earl, while those titles continued to imply the government of a county, was the proper commander of the militia. Henry II., in order to render it more effective in cases of emergency, and perhaps with a view to extend its service, enacted by consent of" parliament, (27 Hen. 2. Assize of Arms,) that every freeman, according to the value of his estate or moveables, should hold himself constantly furnished with suitable arms and equipments; see Wilkin's Leg. Anglo-Sax. p. 333 ; Lyttktoris Hen. II. 354. By the statute of Winton, 13 Edw. 1. c. 6. these provisions were enforced and extended. Every man between the ages of fifteen and sixty was to be assessed and sworn to keep armour, according to the value of his lands and goods. For 15/. and upwards in rent, or 40 marks in goods, a hauberk, an iron helmet, a sword, a knife, and a horse ; for smaller property less expensive arms. A view of this armour was to be taken twice in the year by the constables chosen in every hundred. These regulations appear by the context of the whole statute to have more immediate regard to the preservation of internal peace, by suppressing tumults and apprehending robbers, than to the actual defence of the realm against hostile invasion, a danger not at that time very imminent. The sheriff, as chief conservator of the public peace and minister of the law, had always possessed the right of summoning the posse comitates; that is, of calling on all the king's liege subjects, within his jurisdiction, for their assistance, in case of any rebellion or tumultuous rising, or when bands of robbers infested the public ways ; or when, as occurred very frequently, the execution of legal process was forcibly obstructed. It seems to have been the policy of that wise prince, Edward I., to whom we are indebted for so many signal improvements in our law, to give a more effective and permanent energy to this power of the sheriff. The provisions, however, of the statute of Winton, so far as they obliged every proprietor to possess suitable arms, were, of course, applicable to national defence. In seasons of public danger, threatening invasion from the side of Scotland or France, it became customary to issue commissions of array, empowering those to whom they were addressed to muster and train all men capable of bearing arms in the counties to which the commissions extended, and hold them in readiness to defend the kingdom. The earliest of these commissions, in Rymer, is of 1324, and the latest 1557.

The obligation of keeping arms according to each man's estate was enforced by a statute of Philip and Mary, (5 P. 8f M. c. 2), which made some changes in the rate and proportion, as well as the kind of arms. But these ancient provisions were repealed by 1 Jac. 1. c. 25. § 46. The nation, become for ever secure from invasion on the quarter where the militia service had been most required, and freed from the other dangers which had menaced the throne of Elizabeth, gladly saw itself released from an expensive obligation. The government also may be presumed to have thought that weapons of offence were safer in its hands than in those of its subjects. Magazines of arms were formed in different places, and generally in each county (Rymer, xix. 810) ; but (if we may reason from the absence of documents) there was little regard to military array and preparation, save that the citizens of London mustered their trained bands on holidays; an institution which is said to have sprung out of a voluntary association called the artillery company, formed in the reign of Henry VIII., for the encouragement of archery, and acquiring a more respectable and national character at the time of the Spanish Armada. Grose's Military Antiquities.

The word artillery was at that time used for the long-bow. The Artillery Company still exists in London, and may be considered as the origin of those volunteer military associations which were so honourable and serviceable to the country in the French revolutionary war, from 1793 to 1814.

The power of calling into arms, and mustering the population of each county (given in earlier times to the sheriff or justices of the peace, or to special commissioners of array) began (about the reign of Henry VIII. or his daughter Mary) to be entrusted to a new officer, entitled the lieutenant, or lord-lieutenant of the county, (who is mentioned as a known officer in 4 & 5 P. $• M. c. 3.) This lord-lieutenant was usually a peer, or at least a gentleman of large estate within the county, whose office gave him the command of the militia, and rendered him the chief vicegerent of his sovereign, responsible for the maintenance of public order. This institution may be considered as a revival of the ancient local earldom; and it certainly took away from the sheriff a great part of the dignity and importance which he had acquired since the discontinuance of such local earldom: yet the lord-lieutenant has so peculiarly military an authority, that it does not in any degree control the civil authority of the sheriff, as the executive minister of the law. In certain cases, such as a tumultuous obstruction of legal authority, each may be said to possess an equal power; the sheriff being still undoubtedly competent to call out the posse comit&s, in order to enforce obedience. Practically, however, in all serious circumstances, the lord-lieutenant is reckoned the efficient and responsible guardian of public tranquillity.

In Ireland a similar office is exercised by the governors of counties; and, in cases of exigency, the militia may be called out under the acts regulating that national force. See Militia.

As the fashion of keeping standing armies has of late years universally prevailed over Europe, it has also, for many years past, been annually judged necessary by our legislature, to maintain, even in time of peace, a standing body of troops under the command of the crown ; who are, however, ipso facto disbanded at the expiration of every year, unless continued by parliament.

To keep this body of troops in order, an annual act of parliament passes, " to punish mutiny and desertion, and for the better payment of the army and their quarters." This regulates the manner in which they are to be dispersed among the several innkeepers and victuallers throughout the kingdom; and establishes a law martial for their govern

ment. By this, among other things, it is enacted, that if any officer or soldier shall excite or join any mutiny, or, knowing of it, shall not give notice to the commanding officer; or shall desert, or list in any other regiment, or sleep upon his post, or leave it before he is relieved, or hold correspondence with a rebel or enemy, or strike or use violence to his superior officer, or shall disobey his lawful commands ; such offender shall suffer such punishment as a court martial shall inflict, though it extend to death itself. See Court Martial.

However expedient the most strict regulations may be in time of actual war ; yet, in times of profound peace, a little relaxation of military rigour would not, one should hope, be productive of much inconvenience. And, upon this principle, though by our statute laws (still remaining in force, though not attended to,) desertion in time of war is made felony, without benefit of clergy, and the offence is triable by a jury, and before justices at the common law; yet, by our militia laws, a much lighter punishment is inflicted for desertion in time of peace. But our mutiny act makes no such distinction: for any of the faults above mentioned are equally at all times punishable with death itself, if a court martial shall think proper. This discretionary power of the court martial is indeed to be guided by the directions of the crown; which, with regard to military offences, has almost an absolute legislative power. " His majesty," says the act, " may form articles of war, and constitute courts martial, with power to try any crime by such articles, and inflict penalties by sentence or judgment of the same."

But as soldiers, by this annual act, are in some respects put in a worse condition than any other subjects; so by the humanity of our standing laws, they are in other cases put in a much better. By 43 Eliz. c. 3. a weekly allowance is to be raised in every county, for the relief of soldiers that are sick, hurt, and maimed; and the royal hospital at Chelsea is established for such as are worn out in their duty. Officers and soldiers that have been in the king's service, are, by several statutes enacted at the close, or during the continuance of wars, at liberty to use any trade or occupation they are fit for, in any town in the kingdom, (except the two universities,) notwithstanding any statute, custom, or charter to the contrary. And soldiers in actual military service may make nuncupative wills, and dispose of their goods, wages, and other personal chattels, without those forms, solemnities, and expenses, which the law requires in other cases. 29 Car. 2. c. 3; 5 Wm. 3. c. 21. § 6. See Wills.

By the annual mutiny acts no soldier shall be taken out of the service by any process, except it be for some criminal matter, or for a real debt amounting to 30/. of which affidavit is to be made; and if any soldier be otherwise arrested, one judge by a warrant under his hand and seal shall discharge him: but the plaintiff may file an appearance in an action of debt, upon notice thereof given, and proceed to judgment and execution, other than against the body of such soldier. Soldiers, while confined for debt, shall not receive pay.

By 31 Car. 2. c. 1. no soldier shall be quartered on any persons without their consent: and inhabitants of places may refuse to quarter any soldier, notwithstanding any order whatsoever.

By the 43 Geo. 3. c. 61. § 1. every soldier or marine duly discharged out of any regiment, and every sailor duly discharged from the navy, upon carrying his discharge to the mayor or chief magistrate of the nearest town, may receive a certificate, stating the place to which he is desirous of going, being his home or last legal settlement, together with the time to be fixed, not exceeding ten days for every 100 miles. And such person producing such discharge and certificate, when lawfully demanded, and being in his proper route, shall not, by asking relief, be deemed a rogue and vagabond.

And by § 2. the wife of any soldier ordered for foreign service, making due proof of her not being allowed to embark with her husband, may receive a like certificate.

By the 37 Geo. 3. c. 70. (made perpetual by the 57 Geo. 8. c. 7.) any one maliciously and advisedly endeavouring to seduce any person serving in his majesty's forces by sea or land from his duty and allegiance, or inciting him to commit any act of mutiny, or to make, or endeavour to make any mutinous assembly, or to commit any traitorous or mutinous practice whatsoever, is guilty of felony, punishable with ¦death.

During the war foreign soldiers were occasionally admitted into the British service, and in such cases commissions were allowed to be granted by his majesty to foreign officers. See the acts, 45 Geo. 3. c. 75; 46 Geo. 3. c. 23.

By the 7 Geo. 4. c. 16. the several acts relating to Chelsea Hospital were consolidated and amended. This act contains a variety of regulations for the payment of pensions to disabled soldiers, which are placed under the management of the commissioners of the hospital.

By the 2 & 3 Wm. 4. c. 106. the officers in the army, and their representatives and widows, and persons on the compassionate h'st, and also civil officers on retired or superannuation allowances, are empowered to draw bills of exchange for their half pay or pensions upon the paymaster general of the forces.

For the acts which have been passed from time to time, with respect to serving in foreign states, see Foreign Service. And see further, False Personation, Militia, Prize Money, &c.

SOLE CORPORATIONS. See Corporations.

SOLET ET DEBET. Vide Debet et Solet.

SOLE TENANT, solus tenens.] He that holds lands by his own right only, without any other joined; and if a man and his wife hold lands for their lives, with remainder to their son for life; here the man dying, the lord shall not have an heriot, because he dies not sole tenant. Kitch. 134.

SOLICITATIONS. It is an indictable offence to solicit and incite another to commit a felony, although no felony be in fact committed ; and the sessions have cognizance of such an offence as having a tendency to a breach of the peace. 2 East, 5.

SOLICITOR, solicitator.] A person employed to follow and take care of suits depending in courts of equity. Solicitors are to be sworn and admitted by the judges, like unto attornies, before they shall practise in the common law courts; attornies may be admitted solicitors in the courts of equity, &c. a Geo. 2. c. 23. See Attorney.

There is also a solicitor-general to the king, who is a great officer next to the attorney-general.

STANDARD, from the Fr. estandart, $c. signum, vexillum.~] In the general signification, is an ensign in war. And it is used for the standing measure of the king, to the scantling whereof all the measures in the land are or ought to be framed by the clerks of markets, aulnagers, or other officers, according to Magna Carta and divers statutes. This is not without good reason called a standard, because it standeth constant and immoveable, having all measures coming towards it for their conformity : even soldiers in the field have their standard or colours for their direction in their march, &c. to repair to. Britton, c. 30. See Measure.

There is a standard of money, directing what quantity of fine silver and gold, and how much allay, are to be contained in coin of old sterling, &c.; and standard of plate, and silver manufactures. 6 Geo. 1. c. 11. See Allay, Gold, Money, &c.

STAND ARDUS. True standard, or legal weight or measure. Cartular. S. Edmund. MS. 268.

 

The federal business energy investment tax credit available under 26 USC § 48 was expanded significantly by the Energy Improvement and Extension Act of 2008 (H.R. 1424), enacted in October 2008. This law extended the duration -- by eight years -- of the existing credits for solar energy, fuel cells and microturbines; increased the credit amount for fuel cells; established new credits for small wind-energy systems, geothermal heat pumps, and combined heat and power (CHP) systems; allowed utilities to use the credits; and allowed taxpayers to take the credit against the alternative minimum tax (AMT), subject to certain limitations. The credit was further expanded by The American Recovery and Reinvestment Act of 2009 , enacted in February 2009.  

In general, credits are available for eligible systems placed in service on or before December 31, 2016:

  • Solar. The credit is equal to 30% of expenditures, with no maximum credit. Eligible solar energy property includes equipment that uses solar energy to generate electricity, to heat or cool (or provide hot water for use in) a structure, or to provide solar process heat. Hybrid solar lighting systems, which use solar energy to illuminate the inside of a structure using fiber-optic distributed sunlight, are eligible. Passive solar systems and solar pool-heating systems are not eligible. (The Solar Energy Industries Association has published a three-page document that provides answers to frequently asked questions regarding the federal tax credits for solar energy.)  

  • Fuel Cells. The credit is equal to 30% of expenditures, with no maximum credit. However, the credit for fuel cells is capped at $1,500 per 0.5 kilowatt (kW) of capacity. Eligible property includes fuel cells with a minimum capacity of 0.5 kW that have an electricity-only generation efficiency of 30% or higher. (Note that the credit for property placed in service before October 4, 2008, is capped at $500 per 0.5 kW.)  

  • Small Wind Turbines. * The credit is equal to 30% of expenditures, with no maximum credit for small wind turbines placed in service after December 31, 2008. Eligible small wind property includes wind turbines up to 100 kW in capacity. (In general, the maximum credit is $4,000 for eligible property placed in service after October 3, 2008, and before January 1, 2009. The American Recovery and Reinvestment Act of 2009 removed the $4,000 maximum credit limit for small wind turbines.)  

  • Geothermal Systems. * The credit is equal to 10% of expenditures, with no maximum credit limit stated. Eligible geothermal energy property includes geothermal heat pumps and equipment used to produce, distribute or use energy derived from a geothermal deposit. For electricity produced by geothermal power, equipment qualifies only up to, but not including, the electric transmission stage. For geothermal heat pumps, this credit applies to eligible property placed in service after October 3, 2008. Note that the credit for geothermal property, with the exception of geothermal heat pumps, has no stated expiration date.  

  • Microturbines. The credit is equal to 10% of expenditures, with no maximum credit limit stated (explicitly). The credit for microturbines is capped at $200 per kW of capacity. Eligible property includes microturbines up to two megawatts (MW) in capacity that have an electricity-only generation efficiency of 26% or higher.  

  • Combined Heat and Power (CHP). * The credit is equal to 10% of expenditures, with no maximum limit stated. Eligible CHP property generally includes systems up to 50 MW in capacity that exceed 60% energy efficiency, subject to certain limitations and reductions for large systems. The efficiency requirement does not apply to CHP systems that use biomass for at least 90% of the system's energy source, but the credit may be reduced for less-efficient systems. This credit applies to eligible property placed in service after October 3, 2008.

In general, the original use of the equipment must begin with the taxpayer, or the system must be constructed by the taxpayer. The equipment must also meet any performance and quality standards in effect at the time the equipment is acquired. The energy property must be operational in the year in which the credit is first taken.  

Significantly, The American Recovery and Reinvestment Act of 2009 repealed a previous restriction on the use of the credit for eligible projects also supported by "subsidized energy financing." For projects placed in service after December 31, 2008, this limitation no longer applies. Businesses that receive other incentives are advised to consult with a tax professional regarding how to calculate this federal tax credit.  


* The American Recovery and Reinvestment Act of 2009, which allows PTC-eligible facilities to use the 30% ITC, has implications for some technologies that were already potentially eligible for either incentive in some form. Certain geothermal and open- or closed- loop biomass systems (including biomass CHP projects) now qualify for a 30% tax credit through December 31, 2013, the in-service deadline for these technologies under the PTC. Wind-energy systems of all sizes -- not only systems of 100 kW or less -- also now qualify for the 30% ITC through the wind-energy PTC in-service deadline of December 31, 2012. Applicants should refer to the eligibility definition contained in the PTC to determine if and how their project might qualify for this treatment.

Contact:
Public Information - IRS
U.S. Internal Revenue Service
1111 Constitution Avenue, N.W.
Washington, DC 20224
Phone: (800) 829-1040
Web Site: http://www.irs.gov

 

AGENDA Public Meeting Central Valley Regional Water Quality Control Board September 23, 2010– 9:00 a.m. Central Valley Regional Water Quality Control Board

Litigation filed by the Board against other parties: Iron Mountain Mine Cleanup - State of Calif., CVRWQCB, et al. v. Iron Mountain Mines, Inc., et al., (EDCal No. CIV-S-91-1167-DFL-PAN) and U.S. v. Iron Mountain Mines, Inc., et al., (EDCal No. S-91-0768 DFL/JFM)

Groundwater Quality Protection Strategy
Central Valley Region
“Roadmap”
August 2010
REGIONAL WATER QUALITY CONTROL BOARD
CENTRAL VALLEY REGION
CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY

 

COMING TOGETHER FOR THE SAFE WATERSHED REFORM-ACT:

FEASIBILITY

PAN CANADIAN DATA

“Toxic” doesn't do justice to Iron Mountain runoff

Iron Mountain Mine strategy outlines specific action to ensure a protective remedy within the Superfund statutory and regulatory framework, as established by the Comprehensive Environmental Response, Compensation, and Liability Act and the National Oil and Hazardous Substances Pollution Contingency Plan. Opportunities to decrease the environmental footprint and maximize the environmental outcome of a cleanup exist throughout a project life. Iron Mountain Mine Superfund Remediation Strategy sets out current regulation of the Superfund Remedial Program to eliminate the demand placed on the EPA during delisting.

Many of the strategic actions can be addressed through policy and guidance compliance, resource development, and attention to the rule of law:

  • Maximize use of renewable energy to power site operations, and identify methods for increasing energy efficiency;
  • Remedy optimization starting in fiscal year 2010;
  • Maximize efficient use of natural resources and energy during remedial actions;
  • Integrate energy sources and encourage best operational practices
  • Perfect and deploy technology for the reuse of treated water and increase potable water supply and irrigation with conservation, recharge of aquifers;
  • Identify additional onsite or offsite uses of materials or energy otherwise considered waste;
  • Include language in statements of work for removal action, remedial design, and remedial action procurement contracts; and
  • Help communities establish networks and training programs that enable citizens to gain proficiency and expertise.

 

SPRING CREEK WATERSHED - SUGARLOAF WATER DISTRICT

Attorney General Cuccinelli rails against EPA

Update: Governor Manchin Sues EPA

October 6, 2010 tags: EPA , mountaintop removal mining , administrative law , coal mining by Rhead Enion

West Virginia Governor Joe Manchin announced Tuesday that West Virginia is filing suit to, as the Governor put it, stop EPA's “attempts to destroy the coal-mining industry and our way of life.”  The Charleston Gazette has a good summary of the suit .  The suit seeks to invalidate EPA's recent review of Clean Water Act permits for mining and block EPA from implementing a stricter water quality standard.  Front and center will be the Spruce Mine mountaintop removal (MTR) permit, currently under EPA review (see my earlier blog post here ).

Taking a page from the environmentalists' playbook, West Virginia will focus on whether EPA met its procedural requirements—such as public comment—when considering stricter standard and reviewing the MTR permit.

Governor Manchin is running for the Senate seat formerly occupied by the late Senator Robert Byrd.  Polling to date shows a very close race , and Governor Manchin will certainly take advantage of what, at least in West Virginia, would be considered positive press.  (The Governor did claim that the suit has been in the works since before Senator Byrd's death.)

The law firm representing West Virginia in the suit, curiously enough, is Bailey and Glasser: the same firm that won an appeal about ten years ago after the late U.S. District Judge Charles H. Haden basically shut down mountaintop removal by prohibiting mining waste in permanent and seasonal streams.  Judge Haden's ruling was a monumental, if short-lived, achievement for the environmental movement and is described in Coal River .

 

Thursday's top of the scroll: Army Corps new report, “Building Strong Collaborative Relationships for a Sustainable Water Resources Future”

 

the Dodd-Frank financial reform bill , signed into law this July, requires extractive companies listed on the New York Stock Exchange to disclose payments to governments . The provision was supported by Publish What You Pay , an international civil society coalition promoting transparency for extractive industries. President Obama highlighted the law in his address to the United Nations on Sept. 23.

13. United States - State Relationship. The relationship between the United States
and the State regarding this Consent Decree and oversight and support of the Work by the Site
Operator shall be governed by the Memorandum of Understanding Regarding The Iron
22 1 Mountain Mine Superfund Site Between The United States Environmental Protection Agency
and The California Department Of Toxic Substances Control and The California Central Valley
Regional Water Quality Control Board ("MOU"), attached hereto as Appendix H.
A. Oversight and Support Agencies. EPA shall serve as the Oversight
Agency, and the State plaintiffs shall designate the State agency(ies) that will serve as the

Support Agency unless and until EPA and the State plaintiffs modify this relationship as set
2 forth in the MOU.

AIG to Repay TARP; ‘Glimpsing Sunshine'

October 11th, 2010

Article by Meg Green

Copyright: A.M. Best Company, Inc.
Source: BestWire Services

American International Group Inc.'s top officer said the company is “glimpsing sunshine” as it announced plans to repay its debt to the federal government, plus said it would sell two Japanese life insurance companies to U.S.-based life insurer Prudential Financial Inc. for $4.8 billion. (APPARENTLY HASN'T BEEN WHERE THE SUN SHINES IN SOME TIME).

“You'll recall that in early August, we said we could see the light at the end of the tunnel,” said Robert Benmosche, chief executive of AIG, in an audio statement on the company's website. “Today, we are glimpsing at a lot of sunlight — an awful lot of sunlight.”

He said the announcement marks a momentous step forward for AIG, “and a new beginning for all of us.”

AIG Star Life Insurance Co. Ltd. and AIG Edison Life Insurance Co. Ltd. will be sold to Prudential Financial (NYSE: PRU) for $4.2 billion in cash, and Prudential will assume $600 million in third-party debt under the agreement.

Under the plan to repay its government bailout, AIG would pay back $20 billion in senior secured debt under the Federal Reserve Bank of New York Credit Facility through parent company resources and proceeds from the disposal of AIG assets, including the planned initial public offering in Hong Kong in late October of its Asian life insurance unit, AIA Group.

AIG said it expects AIA to generate at least $2 billion in operating profit for the fiscal year ended Nov. 30, 2010, ahead of AIA's IPO. AIG has moved forward with its IPO plans for AIA after a proposed $35.5 billion sale to U.K.-based Prudential plc fell through in June (BestWire, Sept. 28, 2010).

AIG also said its pending $15.5 billion sale of American Life Insurance Co. to MetLife Inc. would help fund the repayment.

The insurance group will also seek to return the FRBNY's $26 billion holding of preferred interest in two AIG-related special-purpose vehicles through proceeds from future asset monetizations.

AIG said it would also convert the remaining $49.1 billion in Troubled Asset Relief Program preferred shares outstanding into stock to be held by the U.S. Treasury. With that exchange, Treasury will own 92.1% of AIG's common stock. AIG said the conversion will not take place until after the FRBNY credit facility is repaid in full, and the U.S. Treasury is expected to sell its stake in AIG on the open market.

Industry watchers had warned that if the shares are sold too quickly, it could dilute the value of the company and its stock.

Although these actions will result in a streamlined and — through the reduction of debt — strengthened AIG balance sheet, the company's ratings have been heavily based on the U.S. government provision of support, including availability of significant liquidity, A.M. Best Co. commented. With the removal of this support, AIG will need to stand on its own, re-establish itself in the capital markets, restore shareholder confidence (particularly with institutional investors) and demonstrate its ability to maintain sufficient liquidity, which is no longer accessible through government sources, A.M. Best said.

Most AIG insurers have current Best's Financial Strength Ratings of A (Excellent). A.M. Best said AIG's issuer credit rating of bbb is unchanged following the announcement and that the rating outlook remains negative.

As of Sept. 20, AIG (NYSE: AIG) still owed the U.S. government about $128.2 billion in debt (BestWire, Sept. 20, 2010).

Japan is “a market we know well. A market where we've had great success and momentum over the last 30 years,” said John Strangfeld, chairman and CEO of Prudential Financial, in a conference call Sept. 30.

Strangfeld noted Japan is the third-largest economy in the world, and the second-largest life insurance market. The acquisition of the AIG companies will allow Pru to broaden its distribution and “significantly increase the scale of our operations in Japan.”

The AIG Star and AIG Edison transactions are expected to close in the first quarter of 2011, subject to regulatory approval and other closing conditions.

The transaction is expected to result in a $1.2 billion pretax goodwill impairment charge on AIG's third-quarter results.

Shares of AIG were trading at $37.93 the morning of Sept. 30, up 1.28% from the previous close.

Shares of Prudential were trading at $54.10, down 4.30%. Prudential Insurance Company of America currently has a Best's Financial Strength Rating of A+ (Superior).

(By Meg Green, senior associate editor, BestWeek: Meg.Green@ambest.com )

Originally Posted at InsuranceNewsNet on September 30, 2010 by Meg Green.

OLDWICK, N.J., SEPTEMBER 30, 2010
A.M. Best Co . has commented that the issuer credit rating of "bbb" of American International Group, Inc . (AIG) (New York, NY) [NYSE: AIG] is unchanged following the announcement of actions to restructure the financial assistance provided to AIG by the U.S. Treasury Department and the Federal Reserve Bank of New York (FRBNY). The rating outlook remains negative. The ratings of all AIG subsidiaries are unchanged.

The announcement of a plan to repay the FRBNY Credit Facility and to convert the various ownership interests of the U.S. Government to common equity, which will ultimately be sold to public investors, marks the beginning of the final phase of the process begun in September 2008 to stabilize AIG. While the specific details of the plan are now being made public, it has been the expectation since the initiation of the government's involvement that such involvement would not be permanent. As such, the announcement of this final plan is not itself a trigger for rating action by A.M. Best.

Under the proposal, the line of credit extended to AIG by the FRBNY will be repaid before the end of the first quarter of 2011, primarily using proceeds from the initial public offering of AIA Group Limited (AIA) and the previously-announced sale of American Life Insurance Company (ALICO) to MetLife, Inc . In addition, most of the preferred interests in special purpose vehicles (SPVs) established to facilitate the sale of AIA and ALICO currently held by the FRBNY will be transferred to the U.S. Treasury Department in a series of transactions. These two actions will result in the repayment of the outstanding balance on the FRBNY Credit Facility of approximately $20 billion and termination of the Facility.

Following the transactions above, the $49 billion of Series E and F preferred shares held by the U.S. Treasury as well as the Series C preferred shares held by the AIG Credit Facility Trust will be converted into approximately 1.7 billion common shares, which the Treasury will sell over time as market conditions permit. The Treasury's preferred interest in the SPVs will be redeemed through future asset monetizations of designated assets, and these obligations are without recourse to AIG.

Concurrently, the FRBNY and U.S. Treasury have agreed to create a bridge finance facility of approximately $2 billion derived from the Series F preferred shares. These Series F shares will be converted to Series G mandatory convertible preferred stock, which will be available for AIG to draw upon until March 31, 2012, or until AIG completes its primary equity offering of no less than $2 billion, whichever occurs first. The Series G will automatically convert into AIG Common Stock on March 31, 2012, unless it is not drawn or is drawn and redeemed prior to that date.

Although these actions will result in a streamlined and—through the reduction of debt—strengthened AIG balance sheet, the company's ratings have been heavily based on the U.S. Government provision of support, including availability of significant liquidity. With the removal of this support, AIG will need to stand on its own, re-establish itself in the capital markets, restore shareholder confidence (particularly with institutional investors) and demonstrate its ability to maintain sufficient liquidity, which is no longer accessible through government sources. A.M. Best will continue to monitor the execution of the multi-faceted plan and will review the ratings as events emerge.

Ten-Year Swap means an agreement reached between the Company and the Scheduled
Contractor whereby the Scheduled Contractor is prepaid for the first ten years of Expected
Clean-Up Costs and the Company receives certain financial assurances as more fully described
in the Agreement for Insurance for and Work at the Iron Mountain Superfund Site.
oo. Termination Date means the earliest of the following:
1. The ending date of the period set forth in Item 3 of the Declarations; or
2. Cancellation of the Policy pursuant to Section VI, Paragraph F.
pp. Trust One means the Iron Mountain Mine Remediation Trust I, established pursuant to, and
governed by, the laws of the State of California, which shall hold certain rights, title, and other
interests with respect to certain plant and fixed equipment at the Site.
QQ. Trust Two means the Iron Mountain Mine Remediation Trust II established pursuant to,
and governed by, the laws of the State of California and established to qualify as a trust
established pursuant to Section 4688 of the United States Internal Revenue Code.

12. Financial Assurance
a) In the event the Company ceases to be at least "A rated" by A.M. Best, or an equal or better
rating by a leading industry rating agency, should A.M. Best not exist, the Company shall provide
prompt notice to the Named Insureds and financial assurance in one or more of the following
forms:
1. A

(f) Financial test and corporate guarantee for closure. (1) An owner or operator may satisfy the requirements of this section by demonstrating that he passes a financial test as specified in this paragraph. To pass this test the owner or operator must meet the criteria of either paragraph (f)(1)(i) or (ii) of this section:

(i) The owner or operator must have:

(A) Two of the following three ratios: a ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5; and

(B) Net working capital and tangible net worth each at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates; and

(C) Tangible net worth of at least $10 million; and

(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates.

(ii) The owner or operator must have:

(A) A current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's; and

(B) Tangible net worth at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates; and

(C) Tangible net worth of at least $10 million; and

(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates.

(2) The phrase “current closure and post-closure cost estimates” as used in paragraph (f)(1) of this section refers to the cost estimates required to be shown in paragraphs 1–4 of the letter from the owner's or operator's chief financial officer (§264.151(f)). The phrase “current plugging and abandonment cost estimates” as used in paragraph (f)(1) of this section refers to the cost estimates required to be shown in paragraphs 1–4 of the letter from the owner's or operator's chief financial officer (§144.70(f) of this title).

(3) To demonstrate that he meets this test, the owner or operator must submit the following items to the Regional Administrator:

(i) A letter signed by the owner's or operator's chief financial officer and worded as specified in §264.151(f); and

(ii) A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and

(iii) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:

(A) He has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and

(B) In connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted.

(4) An owner or operator of a new facility must submit the items specified in paragraph (f)(3) of this section to the Regional Administrator at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal.

(5) After the initial submission of items specified in paragraph (f)(3) of this section, the owner or operator must send updated information to the Regional Administrator within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in paragraph (f)(3) of this section.

(6) If the owner or operator no longer meets the requirements of paragraph (f)(1) of this section, he must send notice to the Regional Administrator of intent to establish alternate financial assurance as specified in this section. The notice must be sent by certified mail within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the requirements. The owner or operator must provide the alternate financial assurance within 120 days after the end of such fiscal year.

(7) The Regional Administrator may, based on a reasonable belief that the owner or operator may no longer meet the requirements of paragraph (f)(1) of this section, require reports of financial condition at any time from the owner or operator in addition to those specified in paragraph (f)(3) of this section. If the Regional Administrator finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of paragraph (f)(1) of this section, the owner or operator must provide alternate financial assurance as specified in this section within 30 days after notification of such a finding.

(8) The Regional Administrator may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the owner's or operator's financial statements (see paragraph (f)(3)(ii) of this section). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The Regional Administrator will evaluate other qualifications on an individual basis. The owner or operator must provide alternate financial assurance as specified in this section within 30 days after notification of the disallowance.

(9) The owner or operator is no longer required to submit the items specified in paragraph (f)(3) of this section when:

(i) An owner or operator substitutes alternate financial assurance as specified in this section; or

(ii) The Regional Administrator releases the owner or operator from the requirements of this section in accordance with §264.143(i).

(10) An owner or operator may meet the requirements of this section by obtaining a written guarantee. The guarantor must be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a “substantial business relationship” with the owner or operator. The guarantor must meet the requirements for owners or operators in paragraphs (f)(1) through (8) of this section and must comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording specified in §264.151(h). The certified copy of the guarantee must accompany the items sent to the Regional Administrator as specified in paragraph (f)(3) of this section. One of these items must be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter must describe the value received in consideration of the guarantee. If the guarantor is a firm with a “substantial business relationship” with the owner or operator, this letter must describe this “substantial business relationship” and the value received in consideration of the guarantee. The terms of the guarantee must provide that:

(i) If the owner or operator fails to perform final closure of a facility covered by the corporate guarantee in accordance with the closure plan and other permit requirements whenever required to do so, the guarantor will do so or establish a trust fund as specified in §264.143(a) in the name of the owner or operator.

(ii) The corporate guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the Regional Administrator. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Regional Administrator, as evidenced by the return receipts.

(iii) If the owner or operator fails to provide alternate financial assurance as specified in this section and obtain the written approval of such alternate assurance from the Regional Administrator within 90 days after receipt by both the owner or operator and the Regional Administrator of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternative financial assurance in the name of the owner or operator.

demonstration that the Company satisfies the requirements of 40 C.F.R. Part 264.143(f)

for the Terminal Payment;
2. A guarantee to perform the obligations of the Company under the Terminal Payment by one
or more parent corporations or subsidiaries, or by one or more unrelated corporations that
have a substantial business relationship with the Company;
3. A surety bond guaranteeing the Terminal Payment;
4. One or more irrevocable letters of credit equaling the Terminal Payment; or
5. A trust fund.
b) If the Company seeks to provide financial assurance through a guarantee by a third party
pursuant to Paragraph a.2 above, the Company shall demonstrate that the guarantor satisfies the
requirements of 40 C.F.R. Part 264.143(f). If the Company seeks to demonstrate its ability to
provide financial assurance by means of the financial test or the corporate guarantee pursuant to
paragraph a.2 it shall resubmit sworn statements conveying the information required by 40 C.F.R.
Part 264.143(f) annually, on the anniversary of the effective date of the Policy. In the event that
the Oversight Agency, after a reasonable opportunity for review and comment by the Support
Agency, determines at any time that the financial assurances provided pursuant to this section
are inadequate, the Company shall, within 30 days of receipt of notice of the Oversight
Agency's determination, obtain and present to the Oversight Agency for approval one of the
other forms of financial assurance listed above. The Company's inability to demonstrate financial
ability to perform under the Policy shall not excuse performance of such activities.
c) The Company may change the form of financial assurance provided under this section at any
time, upon notice to and approval by the Oversight Agency, provided that the new form of
assurance meets the requirements of this section. In the event of a dispute, the Company may
change the form of the financial assurance only in accordance with the final administrative or
judicial decision resolving the dispute.


Advancing Sustainable Agriculture Through the Committee on World Food Security

Last year, the United States joined the global community in endorsing the Rome Principles for the eradication of hunger and global food insecurity. The principles recognize that no one country alone, no matter how generous, can win the fight to end hunger, and they embrace not only the coordinated action of the donors and our developing country partners, but also include a strong role for the multilateral organizations. The United States regularly participates in all global multilateral organizations related to hunger relief and food security. In fact, as the U.S. Representative, my team and I serve as the leaders for our work in the various Rome-based forums.

This week, I, along with Ambassador Patricia Haslach, Deputy Coordinator for Diplomacy for the Global Hunger and Food Security Initiative, and an interagency team from the U.S. State Department, USAID, the Millennium Challenge Corporation, and the U.S. Department of Agriculture are representing the United States at the 36th Committee on World Food Security (CFS). The CFS is a unique international body — one where all stakeholders, including member states, civil society organizations, and the private sector, are represented.

Working together with our partners, we will create a CFS that serves as the global platform for sharing best practices , identifying gaps, and creating tools that will support the work of countries to develop and implement their own sustainable agriculture programs. These tools will include a mapping instrument that will help us all better understand the results realized from our agriculture and nutrition related investments and activities. We're also working to ensure that CFS supports locally owned and created country-led processes. The country-led process represents a key factor in our Feed the Future Initiative . This process recognizes the importance of empowering countries while providing the tools necessary to accelerate the growth of their agricultural sector, reduce food insecurity, and improve nutrition, particularly in young children.

Reducing global food insecurity and malnutrition is no easy task. But, I am reasonably optimistic that we will reach our goal. This week, I witnessed the true value of the CFS (and the work of the United States) in this fight to end hunger and malnutrition when representatives from Rwanda, Bangladesh , and Haiti each made presentations. Their presentations included honest stories of the challenges they have faced in their countries and what they are doing to overcome those obstacles. By sharing their experiences and lessons learned, they in turn helped the international community (particularly other developing countries) understand how to better implement sustainable food security strategies and ultimately eliminate hunger and improve nutrition worldwide.

 

AIG currently has the equivalent of a single-A-minus credit rating from Moody's Investors Service and Standard & Poor's, but that investment-grade rating is largely due to the financial support the U.S. government has provided.

Absent government support, AIG would have a noninvestment-grade, or "junk," credit rating. AIG chief executive Robert Benmosche has said the company is trying to get its "stand-alone" rating back to single-A, which would entail sharply lowering its debt, maintaining or improving the profitability of its insurance businesses, reducing risk and disposing of noncore units. Last week, AIG reached a deal to sell 80% of its debt-heavy and loss-making consumer-finance business, removing a key drag on its finances.

Over the past year, various banks and insurers that received funds from the Treasury's Troubled Asset Relief Program repaid what they owed the government after raising money from investors from stock and debt sales. "A necessary step for other institutions was accessing the capital markets on their own before they went to the government with a plan to repay TARP," said Robert Riegel, managing director of Moody's U.S. Insurance team. He notes, however, that AIG's situation is more complicated because of the size and scale of its bailout.

Much of what AIG owes the New York Fed is expected to be repaid with cash from asset sales, though a portion could come from new debt issues. The annual interest rate on AIG's loan from the New York Fed is currently about 3.35%.

The regional Fed bank is looking to recoup a separate $55 billion in equity holdings from sales of AIG's overseas life insurance businesses and from mortgage securities previously linked to the insurer. The Treasury Department separately has a $49 billion investment in AIG preferred shares, some of which are widely expected to be converted in the future into AIG common stock and sold to investors.

According to MarketWatch, following the latest news, Standard & Poor's Rating Services announced that it would maintain AIG's credit rating at A-, but plans to conduct a review in light of the plan, which it called “a positive credit development.” S&P is likely to raise its stand-alone credit rating for the firm from BB to BBB+, and possibly even higher by the end of 2010.

 

Determining AIG's Worth

The rules for push-down accounting, which the Securities and Exchange Commission's staff laid out in a 2001 memo , hinge on rigid numerical tests for determining if a company has become “substantially wholly owned” by another entity. The method is prohibited with less than 80 percent ownership, permitted if ownership is 80 percent or more but less than 95 percent, and required (with some exceptions) at 95 percent or more.

The process works like this. When a transaction or series of deals results in a company becoming substantially owned by another entity, the new owner allocates its purchase price among the assets and liabilities it acquired, using their newly assigned fair values. Those values then are pushed down to the acquired company, which can cause either positive or negative adjustments to the items on its balance sheet.

Real World Numbers

The effects of push-down accounting on AIG's books probably would be sizeable. As of June 30 , AIG said 54 percent of the $850.5 billion of assets on its balance sheet were measured at fair value on a recurring basis, meaning 46 percent weren't. Just 4 percent of its $745.9 billion of liabilities were.

One example of an asset carried at cost, rather than fair value, is a $29 billion line on AIG's books called deferred acquisition costs, which include sales commissions and other expenses related to acquiring and renewing customers' insurance policies. These deferred costs aren't saleable. It is money out the door. Their fair value wouldn't be anywhere close to $29 billion in the real world. Yet that figure represented 38 percent of AIG's shareholder equity as of June 30.

Other fair-value adjustments could result in increases to AIG's equity. For instance, AIG said the fair values for some liabilities were lower than what its balance sheet showed.

An AIG spokesman, Mark Herr , declined to comment for this column, as did a Treasury spokesman, Mark Paustenbach . My guess is that neither Treasury nor AIG wants to highlight that push- down accounting is back on the table as an option. If more investors knew that it was, they just might demand the additional transparency.

IX. ACCESS AND INSTITUTIONAL CONTROLS
3 22. The Settling Parties shall comply with the access and institutional control
4 requirements contained in the Access Agreement attached to this Consent Decree as Appendix
5 M.
6 23. The Site Operator shall comply with the access and institutional control
7 requirements contained in the SOW.
8 24. If the Oversight Agency or the Support Agency determines that land/water use
9 restrictions in the form of state or local laws, regulations, ordinances or other governmental
10 controls are needed to implement the interim remedies selected in the RODs, ensure the
11 integrity and protectiveness thereof, or ensure non-interference therewith, the Site Operator
12 shall cooperate with the efforts of the Oversight Agency or Support Agency to secure such
13 governmental controls, in accordance with the SOW.
14 25. Subject only to the provisions of this Consent Decree governing the specific
15 rights and obligations of the Released Parties and the Site Operator, the United States and the
16 State retain all of their access authorities and rights, as well as all of their rights to require
17 land/water use restrictions, including enforcement authorities related thereto, under CERCLA,
18 RCRA and any other applicable federal or state law, statutes, or regulations.
19 X. REPORTING REQUIREMENTS
20 26. The Site Operator shall comply with all reporting requirements as specified in
21 the SOW.

 

5. MATTERS NOT COVERED BY THE CONSENT DECREE.
5.1 Decisions relating to remedy selection.
5.1.1 Decisions regarding selection of future remedial actions. The Parties to
this MOU agree that with respect to any future investigation and remedy
selection regarding the IMM Site, the Parties will follow the process and
procedures set forth in CERCLA and the NCP. The Parties further
understand and agree that nothing in the MOU limits the State's rights
under Section 114 of CERCLA or any other applicable law, or the rights
and responsibilities of any Party under Section 121 of CERCLA or any
other applicable law.
5.1.2 Decisions regarding amending prior remedial actions. The Parties to
this MOU agree that with respect to adopting an ESD or amending the

remedial actions in place at the time of the entry of the Consent Decree or
remedies implemented after the entry of the Consent Decree, EPA and the
State will follow the process and procedures set forth in CERCLA and the
NCP. The Parties further understand and agree that nothing in this MOU
limits the State's rights under Section 114 of CERCLA or any other
applicable law, or the rights and responsibilities of any Party under
Section 121 of CERCLA or any other applicable law.
5.1.3 Waiver of ARARs for existing and future RODs. The Parties to this
MOU agree to consider the appropriateness of a permanent waiver of the
applicable or relevant and appropriate requirement ("ARAR") with respect
to the standard for receiving waters, including, but not limited to Spring
Creek, as to existing and future RODs for the IMM Site. If at some point
EPA determines that no further RODs will be issued for the IMM Site,
EPA will inform the State in writing at the earliest possible date and the
issue of the waiver of ARARs will be reviewed as soon as thereafter as
practicable.
5.1.4 Changes to CERCLA. If in the future CERCLA changes in a material
manner so as to impact the expectation of the Parties with respect to the
process arid procedure for amending remedies at a federal Superfund site,
the Parties will agree to meet and formulate a process for future remedy
selection that is consistent with applicable state and federal laws in force at
that time.

IMMI's STRATEGY FOR ACHIEVING THE SAFE WATERSHED REFORM-ACT (SWR)

Court for the Eastern District shall be held at Redding.

Read more: http://vlex.com/vid/sec-california-19212558#ixzz11HJZkgsS

28 USC 84 - Sec. 84. California

US Code - Title 28: Judiciary and Judicial Procedure

Read more: http://vlex.com/vid/sec-california-19212558#ixzz11HIWPdJQ

 

a private party may “recover expenses associated with cleaning up contaminated sites.” United States v. Atl. Research Corp., 551 U.S. 128, 131

October 11, 2010 CERCLA 'Arranger' Liability Narrowed

 

See also Madison 's explanation of the purpose of the 9 th Amendment in response to Hamilton 's objection in Federalist 84 :

1. “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general (i.e. Federal) government, and were consequently insecure.  This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against.  I have attempted it, as gentlemen may see by turning to the last clause of the 4 th resolution (i.e. the original draft of the 9 th amendment)” (James Madison, U.S. House of Representatives, June 8, 1789)

 2. “The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution” (An early version of the 9 th amendment—the last clause of the 4 th resolution—as submitted by James Madison, June 8, 1789).

 

 

CERCLA allows PRPs to seek contribution from one another in order to apportion response costs equitably. But CERCLA bars contribution
claims against PRPs that have obtained administratively or judicially approved settlements with the government.

CERCLA thus provides an incentive for PRPs to settle by leaving non-settling PRPs liable for all of the response costs not paid by the settling PRPs.

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

BRICK FLAT LIME SLUDGE FOR SALE - 500K TONS AVAILABLE

IRON MOUNTAIN MINE IS IN THE LIBRARY OF CONGRESS

Treasury puts AIG TARP loss at $5 billion

Posted by Colin Barr October 5, 2010 3:51 pm

The government's most controversial bailout is still under water, if just barely.

Treasury said Tuesday in its two-year retrospective on the Troubled Asset Relief Program that the net cost of TARP's AIG ( AIG ) bailout at current market prices is $5.1 billion. The cost of the AIG bailout has been subject of considerable head scratching in recent days, with TARP winding down and the terms of federal assistance to AIG changing for the umpteenth time .

 

Moody's Investors Service affirmed American International Group's (AIG) A3 long-term issuer rating and negative outlook, reflecting the rating agency's concerns about the possible end of government support for the insurer.

The Moody's announcement comes in the wake of AIG's announcement of its plan to repay the U.S. Government.

Under the plan, AIG said it would repay its $20 billion direct debt to the Federal Reserve Bank of New York (FRBNY) and the $26 billion in interest the FRBNY has in two special purpose vehicles (SPVs) using its own resources and proceeds from other assets, including an initial public offering of American International Assurance Co. Ltd (AIA) on the Hong King Stock Exchange and proceeds from the $15.5 billion sale of American Life Insurance Co. (ALICO) to MetLife Inc.

Additionally, as part of the plan, $49.1 billion of preferred shares held by the Treasury Department would be converted into about 1.66 billion shares of AIG common stock. The Treasury will then sell the shares to the public over time.

Bruce Ballentine, Moody's lead analyst for AIG, said in a statement, “The proposed repayment plan signals AIG's progress in stabilizing its core insurance operations and exiting noncore businesses. It also points the way toward a sustainable capital structure.”

However, Moody's added that the plan “hastens the end of explicit government support for AIG, which has been an important consideration in the company's ratings.”

Moody's noted that the government will retain significant ownership of AIG for the near term, but the rating agency said it “believes that the ownership stake and implicit support will decline over the next couple of years. Therefore, the ratings of AIG and its subsidiaries will increasingly depend on their stand-alone credit profiles, raising the risk of downgrades if the credit metrics do not improve as expected.”

To attain a stable rating, Moody's said AIG must improve the intrinsic credit profiles of Chartis and SunAmerica Financial Group (SFG). AIG must also exit or de-risk noncore businesses, maintain robust liquidity within its major operations, and develop a standalone capital structure consistent with the company's current ratings.

Moody's said AIG could be downgraded if it fails to “improve certain credit metrics of the core insurance operations, such as profitability, reserve adequacy at Chartis and investment performance at SFG.”

Retention of noncore business risks that could strain capital and liquidity, and an inadequate standalone capital structure could also lead to a downgrade, Moody's said.

EPA Observes Children's Health Month

Dam Inspection By Owner

 

Explaining the AIG exit

Andrew Ross Sorkin's column today is entirely based on what he learned talking to Jim Millstein, the chief restructuring officer at Treasury, who seems to be very happy to talk now that he's officially announced Treasury's plan to exit its investment in AIG. I spoke to him for 70 minutes this afternoon, and now have a much clearer idea of how Treasury is thinking, how its math works, and why there's a disconnect between Treasury and critics like Kid Dynamite .

Millstein made a number of interrelated points.

First, the really big picture here is being missed. There's now an end in sight to a huge and enormously complex corporate restructuring, of an entity — AIG — which was too big to fail, too big to manage, and which had an enormous black hole at its heart known as AIG Financial Products. Today, AIG is set to emerge as a viable entity roughly half its former size, small enough to fail, with the black hole gone. That's not only a substantial achievement; it's also a good proof of concept when it comes to the FDIC's new resolution authority.

This involved a big strategic change of direction at AIG and Treasury. When Treasury installed Ed Liddy as AIG CEO in the immediate aftermath of the bailout, says Millstein, the idea was very much to sell off everything — essentially, to liquidate AIG entirely. But that's no longer the vision: instead, the idea is now to keep AIG going as a good-sized US insurance company, with a very strong property and casualty franchise and a solid life insurance franchise to boot. That company looks as though it's going to be worth something north of $60 billion, given its inherent profitability and general stock-market valuations of insurers.

But there's an enormous difference between an insurance company you're trying to liquidate, on the one hand, and an insurance company which you want to survive as a going concern, on the other: it's not just a difference of taking various assets off the auction block. Rather, it all comes down to credit ratings: in order to be viable as a going concern, any insurance company needs a solid investment-grade credit rating.

If AIG was just selling off its assets or putting its insurance operations into run-off mode, then its credit rating wouldn't matter so much — although the higher AIG's credit rating, the easier it becomes to unwind AIGFP's derivatives positions without facing enormous margin calls. But Treasury looked at the bids that AIG was receiving for its assets, and determined that they were being lowballed by the likes of MetLife, since potential buyers smelled a fire sale. As a result, Treasury needed to credibly be able to say that it didn't have to sell off all AIG's assets.

In order to do that, Treasury needed to take a large chunk of AIG's debt and convert it into some kind of equity. That's why Treasury ended up owning tens of billions of dollars in preferred stock: the ratings agencies don't consider preferred stock to be debt, and so they disregard it when assigning their ratings.

Now a lot of the arithmetic being done by the likes of Sorkin and KD is based on that preferred stock essentially being debt. After all, that's how AIG itself shows it on their website. But it's a very peculiar kind of debt: in fact, to a first approximation, it really is that nerdy joke, the zero-coupon perpetual bond. There's a dividend associated with the preferred stock, but AIG is under no obligation to pay it, and it's non-cumulative: if AIG doesn't pay the dividend then it doesn't remain on AIG's books as any kind of obligation. And there's no maturity date, either. So the obligation that AIG has to Treasury is essentially zero: it has to pay back $0 per year, in perpetuity.

The only real value to the preferred stock is that unless and until AIG starts paying the coupon, it can't make any dividend payments on its common stock. So the preferred stock is not entirely without value. But no one in their right mind would actually pay money for it.

So when Treasury swaps its preferred stock for common stock, it's swapping something with essentially zero secondary-market value for something much more liquid and marketable.

Of course, Treasury brought this on itself, back in February 2009, when it swapped cumulative preferred stock paying a 10 percent coupon for new non-cumulative preferred stock. Without that move, there would never have been any equity value in AIG at all — AIG would have been a loss-making entity in perpetuity. But of course Treasury owns most of the equity in AIG, so it essentially made the decision to swap debt in an insolvent AIG for equity in a solvent AIG. And the reasoning was that the liquidation value of an insolvent AIG was much lower than the market value of a solvent AIG which could operate as a going concern.

At some point, Treasury was always going to insist on converting its new zero-coupon perpetual bonds into something a bit more useful, like secured debt or unsecured debt or cumulative preferred stock or common stock. They were always a halfway house, a way of getting here from there. And in the end, Treasury decided that the easiest and most profitable thing to do would be to just convert them all into common stock.

I'm not sure I would have made the same decision. AIG is making about $8 billion a year at this point, which is more than enough to support a bit more in the way of debt without making too much of a dent in its credit rating. If Treasury had converted say $20 billion of its current preferred stock into new preferred stock paying a 5% coupon, that would pay Treasury $1 billion a year in perpetuity, and could probably be sold at or near par. Instead, that $1 billion a year is being valued on a p/e basis in the stock market, at between $8 billion and $12 billion. That's less than the $20 billion (ish) it would be worth if it looked more like debt.

But Treasury wants to exit its investment, and selling $20 billion of perpetual AIG preferred stock would be decidedly non-trivial. Selling AIG stock is a lot easier. So Treasury decided to simply convert everything to common stock, in an attempt to get out of the insurance business as quickly as possible.

Looked at this way, it's silly to assign hard dollar values to the Series E and Series F preferred stock and then complain when they're being swapped for equity worth less than that sum. Instead, the only number which matters is the total amount of money which Treasury ends up getting from selling off bits of AIG and, ultimately, AIG itself. And there's a secondary consideration, too: Treasury wants to do that sell-off as quickly as possible.

Treasury's exit strategy certainly maximizes the speed of the sell-off. And Millstein makes a credible case that at the end of the day, Treasury is going to get out of AIG more money than it put in — some $13 billion or so in profit. That sum is not nearly commensurate with the risk that Treasury took when it bailed out the insurer. But really, Treasury had no choice: when it was bailed out, AIG had a whopping $2.4 trillion in derivatives contracts, which would have caused major systemic consequences if they had been unwound in a Lehman-style forced liquidation. We would all be much poorer, today, if AIG had not been bailed out. Any profit on the bailout is just gravy.

So it's easy to get caught up in the weeds here. But rather than getting caught up with the relative valuations of Series C and Series F, the big picture is relatively simple: Treasury put about $47.5 billion into AIG, and the Fed added a bunch more. The Fed is soon going to get paid off in full, with interest. And Treasury is going to end up with an equity stake in AIG worth something north of $60 billion; it's optimistic that it'll be able to sell that stake in the market, much like it's selling off its Citigroup stake right now. That equity stake is a matter of choice; Treasury could have structured things many other ways, and probably could have ended up with something less liquid but more valuable if it had wanted to do so.

Millstein is a fan of common equity, and is looking forward to the day when he can start selling off the government's AIG stake in the secondary market. Then we'll be done with AIG, we won't have big losses to show for it, and we will have dealt with the AIGFP black hole in the interim. It's a pretty impressive achievement, all told. And the technical dynamics of exactly what the government is doing with its current slightly peculiar preferred stock are ultimately something of a distraction.

(A couple of footnotes, which don't fit into the broader narrative: right now, AIG has the right to borrow $22 billion more from Treasury, in the form of that Series F perpetual zero-coupon preferred stock, at any time. Under this exit plan, AIG has to use that whole credit line to pay off the Fed, and then needs to repay it with various asset sales, including the sale of the assets it's getting from the Fed. So the plan puts Treasury at less risk that suddenly it will have no choice but to send lots of money to a hungry AIG. And, AIG won't only be an insurance company: for the time being, it still owns an aircraft leasing company called ILFC. But it has said that ILFC is non-core, and it will be happy to sell it at the right price.)

 

It is well established that subject matter jurisdiction cannot be expanded or contracted “by prior action or
consent of the parties.” Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17-18 (1951)

 

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.

 

AG-GEL ESSENTIAL SOLUTIONS BROCHURE

 

Army Dam Inspection

Description

The Engineer Research and Development Center's (ERDC) Dam Inspection Team uses a mix of in-house personnel, Corps of Engineers' District personnel, and civilian consultants to help the U.S. Army Directorates of Public Works maintain compliance with regulations regarding dam safety.

Federal agencies are required by Public Law 92-367, as amended by Public Law 104-303, to inspect dams under their jurisdiction and to biennially report the data to the National Inventory of Dams (NID).

The ERDC Dam Inspection Team assists the Army's Installation Management Command and individual Army installations in complying with the Army's policy, as stated in Army Regulation 420-1. Army policy also requires that each installation have a current Emergency Action Plan (EAP) for each of the high- and significant-hazard dams and an EAP Standard Operating Procedure for low-hazard dams.

Interior Does About-face on Scientific Integrity

This week, the Interior Department released a new policy to protect scientific integrity in the department. OMB Watch joined other public interest groups in submitting comments on the department's draft policy in September. The new policy attempts to address concerns, raised in those comments and others, that the draft policy did not go far enough to prevent abuses of the department's scientific activities and decision making.

Seal of the U.S. Department of the Interior

The new policy, released as an order of Interior Secretary Ken Salazar, drops many of the specifics of the draft policy. Instead, it establishes principles designed to be consistent with President Obama's 2009 scientific integrity memo . The particulars of the policy will be detailed in a future addition to the department's employee manual, as well as guidance and implementation plans developed by Interior bureaus and offices.

The new policy was praised by public interest groups including the Union of Concerned Scientists and Public Employees for Environmental Responsibility , who had criticized the earlier draft.

Interestingly, the new policy mentions that government-wide guidance on scientific integrity is "expected" in 2010 from the White House Office of Science and Technology Policy. That guidance, ordered in 2009 as part of the president's memo, is now more than a year overdue . Interior's statement suggests the guidance may finally be released before the end of this year.

( Gavin Baker 10/01/10;

Senate Could Vote on Food Safety Bill after Elections

 

 

"EPA is attempting to address a problem which simply is not there." Rich Hillman, vice president of the Arkansas Farm Bureau.

"Farmers, ranchers, and foresters "are increasingly frustrated and bewildered by vague, overreaching, and unnecessarily burdensome EPA regulations,"

Chair of the Senate Committee on Agriculture, Nutrition and Forestry Blanche Lincoln

" You're hammering the little guy," Nebraska Republican Mike Johanns told EPA administrator Jackson.

Senator John Thune, a South Dakota Republican, delivered a blunt message from his constituents:

"The Environmental Protection Agency has become Public Enemy Number One of our farmers and ranchers."

CONTACT:
EPA Press Office
press@epa.gov

FOR IMMEDIATE RELEASE
September 30, 2010


EPA Administrator Addresses Farm, Ranch, and Rural Communities Federal Advisory Committee

Agency announces new committee members

WASHINGTON – Today U.S. Environmental Protection Administration Administrator Lisa P. Jackson addressed the newly-appointed members of the Farm, Ranch, and Rural Communities Federal Advisory Committee (FRRCC) during their first official meeting since being appointed. The FRRCC is an independent committee, established by EPA in 2008, that advises the agency on a wide range of environmental issues of importance to agriculture and rural communities. EPA also announced the new committee members, who were appointed in May.

This morning's remarks highlighted Administrator Jackson's ongoing efforts to engage American farmers and highlight opportunities for cooperation between the environmental and agricultural communities. Her speech follows EPA Deputy Administrator Bob Perciasepe's tour of Northern California farms last week, where he met with local farmers to see and discuss efforts from the agricultural sector to protect our nation's natural resources.

“EPA is working to ensure that American farmers, ranchers and rural communities are more environmentally sustainable and economically resilient than ever before,” said EPA Administrator Lisa P. Jackson. “America's farmers have a broad impact on everything from daily food prices to widespread environmental impacts to emerging fuel technologies. We need them to be part of our decision making process, and this meeting is yet another step in our engagement with the agricultural community.”

The new FRRCC members include: Steven S. Balling, Ph.D. (Chair), Del Monte Foods; Michael W. Brubaker, Senate of Pennsylvania; Suzy Friedman, Environmental Defense Fund; Steve McNinch, Western Plains Energy; Bill Snapp, Shoshone-Bannock Tribes; Peggy Beltrone, Cascade County Commission; Robert T. Burns, Ph.D., University of Tennessee; Omar J. Garza, Texas Mexico Border Coalition; Martha L. Noble, National Sustainable Agriculture Coalition; Alice Ann Sorenson, Ph.D., American Farmland Trust; George J. Boggs, Whatcom Conservation District; Gabriela Chavarria, Ph.D., Natural Resources Defense Council; Lee McDaniel, Harford Soil Conservation District; David D. Petty, Iowa River Ranch; G. Douglas Young (Deputy Chair), Spruce Haven Farm and Research Center; A. Richard Bonanno, Ph.D.; University of Massachusetts, Lawrence E. Clark, Farm Pilot Project Coordination; Tom McDonald, JBS Five Rivers Cattle Feeding; Jennie S. Hughes Popp, Ph.D., University of Arkansas; Ray E. Vester, E & M Farms Partnership; Daniel A. Botts, Florida Fruit and Vegetable Association; James W. Ford, Square “O” Consulting; Janis McFarland, Ph.D., Syngenta Crop Protection; Larry D. Sanders, Ph.D., Oklahoma State University; Lori A. Berger, Ph.D., California Specialty Crops Council; Robert L. Carlson, North Dakota Farmers Union; Archilus L. Hart, North Carolina Department of Agriculture; Bill Northey, Iowa Department of Agriculture and Land Stewardship; and Dennis H. Treacy, Smithfield Foods.

More information on the FRRCC: http://www.epa.gov/ocem/frrcc/

Due Process and the EPA's Enforcement of CERCLA: The Problem with Big Business Challenges to a Small Business Problem
Scott Corley
affiliation not provided to SSRN


April 15, 2010


Abstract:
In the past few years, a number of challenges have been mounted against the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically a challenge mounted by the General Electric Company has asserted that the Environmental Protection Agency's (EPA) pattern and practice of enforcing CERCLA violates due process under the Ex Parte Young and Mathews v. Eldridge tests.

Using an assertion that constitutional challenges to CERCLA are only likely to succeed when (1) the property interest infringed by the government is not strictly monetary; (2) the statute calls for a complete lack of pre-deprivation procedures; and (3) the statute's purported delay of review actually results in the complete preclusion of review, this paper argues that the EPA's enforcement of CERCLA raises serious constitutional concerns when it is applied against small businesses, but not when it is enforced against large corporations. This is because large corporations like GE will be able to bear the decontamination costs associated with CERCLA and still mount judicial challenges at the end of the process while smaller businesses will lose financing due to potentially astronomical environmental cleanup costs and penalties that can escalate at a rate of nearly $1 million per month. The result is that the statute's purported delay of review actually completely precludes review for smaller businesses but not for large corporations.

For this reason, the strongest argument that can be made concerning the constitutionality of the EPA's enforcement of CERCLA arises when environmental liabilities are imposed on small businesses. Ultimately, this context provides the clearest evidence that certain provisions of CERCLA have been enforced in a way that has violated the due process rights of certain potentially responsible parties (PRPs).

Keywords: EPA, CERCLA, Pattern and Practice, Due Process, General Electric v. Jackson, PRPs, UAOs, Mathews v. Eldridge, Ex Parte Young

Working Paper Series

 

EPA Should Revise Outdated or Inconsistent EPA-State Clean Water Act Memoranda of Agreement
What We Found
NPDES MOAs between EPA and States do not ensure Agency management control and effective oversight over a national program administered by States that is capable of providing equal protection to all Americans. EPA Headquarters does not hold EPA regional or State offices accountable for updating their MOAs when necessary and relies on other planning and management mechanisms to exercise control over State programs. However, MOAs are critical because they are the common denominator for State-authorized programs and should represent a common baseline. Outdated MOAs or MOAs that are not adhered to reduce EPA’s ability to maintain a uniform program across States that meets the goals of CWA sections 101 and 402. An effective national program must maintain consistent management control and oversight of State programs.
What We Recommend
We recommend that EPA ensure that all NPDES MOAs contain essential elements for a nationally consistent enforcement program, including CWA, Code of Federal Regulations, and State Review Framework criteria. We recommend that EPA develop and provide a national template and/or guidance for a model MOA; direct EPA regions to revise outdated or inconsistent MOAs to meet the national template and standards; and establish a process for periodic review and revision of MOAs, including when the CWA or Code of Federal Regulations are revised or when State programs change. Finally, we recommend that EPA establish a national, public clearinghouse of all current MOAs so that EPA, States, and the public have access to these documents.
EPA generally agreed with our recommendations, saying it would coordinate assessment and revision of NPDES MOAs with implementation of the CWA Action Plan. Three recommendations are open and one recommendation is listed as undecided. In its final response to this report, EPA should provide estimated or actual completion dates for all recommendations.

 

Catalyst for Improving the Environment

Citations for: Withdrawal of Proposed Rules; Discontinuing Rulemaking Efforts Listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions

Explore citations and references

Citations

 

 

Inhofe Says EPA's New Boiler Rule Could Kill Nearly 800,000 Manufacturing Jobs

 

Congress punts tough vote until after November election

 

AUGUST 31 - JUDICIAL - ADMINISTRATIVE - LEGISLATIVE REVIEW OF IRON MOUNTAIN MINE REMEDIATION BEGINS IN NINTH CIRCUIT COURT

 

FEMA 800-480-2520

External affairs 202-646-2781

Acquisitions 202-646-1275

"the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects." Madison wrote this before adoption of the 10th Amendment, which restates, "the powers not delegated to the United States by the Constitution ... are reserved to the states respectively, or to the people." This restriction of powers was intended to be the single greatest bulwark of American liberty.

The following grant opportunity postings were made on the Grants.gov Find Opportunities service:

NSF
National Science Foundation
Catalysis and Biocatalysis
Modification 2
http://www07.grants.gov/search/search.do?&mode=VIEW&oppId=50508



NSF
National Science Foundation
Environmental Implications of Emerging Technologies
Modification 4
http://www07.grants.gov/search/search.do?&mode=VIEW&oppId=46228



NSF
National Science Foundation
Environmental Sustainability
Modification 4
http://www07.grants.gov/search/search.do?&mode=VIEW&oppId=45815



NSF
National Science Foundation
Cooperative Studies Of The Earth's Deep Interior
Modification 2
http://www07.grants.gov/search/search.do?&mode=VIEW&oppId=45693

NIST Releases 2009 Department of Commerce Technology Transfer Report

JPMorgan, HSBC sued for alleged silver conspiracy

Wed Oct 27, 2010 5:35pm EDT

* Hundreds of millions in illegal profit alleged

* Triple damages sought in one of two lawsuits

* CFTC proposed new tools to thwart price manipulation (Adds second lawsuit, background, byline)

By Jonathan Stempel

NEW YORK, Oct 27 (Reuters) - JPMorgan Chase & Co ( JPM.N ) and HSBC Holdings Plc ( HSBA.L ) were hit with two lawsuits on Wednesday by investors who accused them of conspiring to drive down silver prices, and reaping an estimated hundreds of millions of dollars of illegal profits.

The banks, among the world's largest, were accused of manipulating the market for COMEX silver futures and options contracts from the first half of 2008 by amassing huge "short" positions in silver futures contracts that are designed to profit when prices fall.

"Defendants reaped hundreds of millions of dollars, if not billions of dollars in profits" from the conspiracy, one of the complaints said.

The respective plaintiffs, Brian Beatty and Peter Laskaris, each said they traded COMEX silver futures and options and contracts, and lost money because of the alleged market manipulation.

Beatty lives in Connecticut and Laskaris in New York, court records showed. The lawsuits seek class-action status, damages that may be tripled, and other remedies.

Spokeswomen for JPMorgan and HSBC did not immediately return calls seeking comment. Both are major participants in the silver market.

The lawsuits were filed one day after the Commodity Futures Trading Commission proposed regulations to give it greater power to thwart traders who try to manipulate prices.

CFTC Chairman Gary Gensler said the regulator was seeking power to police "fraud-based manipulation."

Commissioner Bart Chilton said there had been "fraudulent efforts to persuade and deviously control" silver prices. [ID:nN26129046]

The CFTC began probing allegations of silver price manipulation in September 2008. A CFTC spokesman said the agency does not comment on ongoing investigations.

Only once in its 36-year history has the CFTC successfully concluded a manipulation prosecution, in a 1998 proceeding concerning prices for electricity futures.

Earlier this year, the CFTC began looking into allegations by a London trader that JPMorgan was involved in manipulative silver trading, The Wall Street Journal said on Wednesday, citing a person close to the situation.

 

 

 

Debate on Interior/EPA Spending Bill Indefinitely Postponed

September 16, 2010 by senatus

Senator Dianne Feinstein (D-CA) — who “oversees the Appropriations panel's subcommittee overseeing Interior Department and Environmental Protection Agency spending — said debate on the appropriations bill in the committee is indefinitely postponed, in part over concerns about efforts to delay EPA climate regulations,” The Hill reports.

“It's off the calendar,” Feinstein told reporters Thursday. “A decision will have to be made about whether it goes back on or out.”

EPA Stuns Industry with Plans to Kill Climate Leaders Program

May 19th 1980 Federal Register

 

INSTITUTIONAL CONTROLS

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.

 

NINTH CIRCUIT GRANTS NON-SETTLING PRPS A RIGHT TO INTERVENE TO PROTECT INTERESTS IN CONTRIBUTION AND IN THE FAIRNESS OF PROPOSED CONSENT DECREE

 

 

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)

 

Office of Inspector General's Report on NOAA Fisheries Enforcement

 

 

No further evidence required to facially apparent facts

A District Court in California declined to remand the action to state court holding that the defendant is not bound to submit “summary-judgment-type evidence” as long as the jurisdictional amount was either “facially apparent” from the complaint or was shown to be “more likely than not” by the facts alleged in the removal petition.

EJ Collaborative Problem-Solving Cooperative Agreements Program

Grants & Programs Topics

Overview

The EJ CPS program requires selected applicants, or recipients, to use the Environmental Justice Collaborative Problem-Solving Model (EJ CPS Model) as part of their projects. The EJ CPS Model's purpose is to provide communities with information to help them develop proactive, strategic, and visionary approaches to address environmental justice issues, and to achieve community health and sustainability. Information on the EJ CPS Model can be found in the publication EPA's Environmental Justice Collaborative Problem-Solving Model PDF (44 pp, 1.5MB) . EPA's Office of Environmental Justice (OEJ) launched the Environmental Justice Collaborative Problem-Solving Cooperative Agreement (EJ CPS) program in 2003

Recent Awards

On June 5, 2007, EPA announced $1 million in grants across the country for improving the environment in low-income communities. These grants were awarded on May 15, 2007.

Environmental Justice Collaborative Problem-Solving Cooperative Agreement Program 2007 Awards: Project Descriptions PDF (3 pp, 19K)

Brochures, Fact Sheets, and Grantee Contacts

State Environmental Justice Cooperative Agreements (SEJCA)

Grants & Programs Topics

Overview

In 2009, EPA selected five state projects to receive funding up to $160,000 each, totaling $800,000.

Alaska The Alaska Department of Environmental Conservation Tribal Participation Protocol Development Project is working with Alaska Native tribal organizations to establish an early notification protocol for the Alaska Pollution Disposal and Elimination System permitting program. The objective of this protocol is to increase community involvement in the permitting process. The project will provide the training and tools for implementing the protocol. The best practices resulting from this project will be applied in other Alaska Department of Environmental Conservation programs and potentially to other State permitting programs.

California The California Department of Toxic Substances Control (DTSC) is working with community representatives, and local, state, and federal regulatory agencies to coordinate multiple environmental pollution mitigation activities. The project will identify inspection and enforcement activities, targeting specific pollution sources, and develop effective strategies for reducing or eliminating these sources in the affected communities. DTSC will also create education programs for community residents and develop compliance assistance programs for small businesses located in selected communities. The initiative will also be exploring options for creating education and job opportunities for community members living in selected communities.

Illinois The East St. Louis Residential Lead Paint Outreach Collaborative will provide community outreach and training to educate and involve residents in lead abatement and paint contamination throughout the City of East St. Louis. The project includes conducting research on the health effects of exposure to residential lead contamination. The outreach plan and public education program will also focus on the hazards of lead contamination, prevention measures, lead blood screening and abatement services. The overall mission of the collaborative is to prevent and eliminate childhood lead poisoning.

Pennsylvania The Pennsylvania Department of Environmental Protection, the Chester Environmental Partnership, and the Crozer-Keystone Health System have come together in a partnership to address the issues of asthma triggers, solid waste disposal, and children's environmental health. This project will combine in-home remediation and education with community-based efforts to reduce exposure to air pollution and solid waste. The program will be implemented in three phases:

  1. In-home assessments and baseline evaluations
  2. Asthma education and remediation through peer educators/counselors
  3. Remediation of improperly disposed of solid waste in the community.


South Carolina The South Carolina Department of Health and Environmental Control (DHEC) is implementing a pilot project program utilizing collaborative problem-solving. The goal of the pilot project is to build capacity while leveraging federal and state resources, to address the environmental and social justice concerns within the selected communities. DHEC will offer technical assistance to communities as they conduct environmental assessments and address environmental issues identified in the community. Each pilot project will meet specific criteria. There will be opportunities to participate in leadership development training designed to create organizational capacity, assist in developing strategies, and build partnerships.

Fact Sheet

Environmental Justice Showcase Communities

Grants & Programs Topics

The U.S. Environmental Protection Agency has committed $1,000,000 to address environmental justice challenges in ten communities across the nation. The Agency is providing $100,000 per project over the next two years to help alleviate the environmental and human health challenges facing many American communities.

The Environmental Justice Showcase Communities effort brings together governmental and non-governmental organizations and pools their collective resources and expertise on the best ways to achieve real results in communities.

Each Region throughout the country has communities with Environmental Justice concerns including:

  • multiple, disproportionate environmental health burdens
  • population vulnerability
  • limits to effective participation in decisions with environmental and health consequences
  • opportunities for multiple federal, state and local agency collaboration, with a focus on green development

Therefore, EPA will work to improve collaboration in the delivery of services to support communities with environmental justice issues.

The successes and lessons learned in these demonstration projects will be used to help guide the design and implementation of future Environmental Justice projects and will help EPA increase its ability to address local environmental challenges in more effective, efficient, and sustainable ways.

List of Showcase Communities

  • Bridgeport , Connecticut - EPA Region 1 is building on work that has already taken place to develop community capacity and engagement, identify a broad network of partnerships, and connect with the goals of the city government. Using this past work as a foundation, the Region plans to work collaboratively with a wide-range of stakeholders to develop projects focused on improving indoor air quality, increasing community capacity for green jobs, increasing recycling rates, and reducing asthma and toxic exposure.

  • Staten Island , New York - EPA Region 2 is working with the North Shore of Staten Island, a former industrial community that contains abandoned, contaminated, and regulated properties along the waterfront, because the neighborhood has seen an increase in the number of kids with elevated lead levels in their blood. EPA, in consultation with key community members, state and local health agencies, is developing a community-based health strategy for the area.

  • Washington , D.C. - EPA Region 3 is building on its Environmental Justice work with a variety of partners, such as: the District Department of Environment; the District Department of Health; and, local recipients of Environmental Justice Collaborative Problem Solving and Environmental Justice Small Grant awards.

  • Jacksonville , Florida - EPA Region 4 is working with the City of Jacksonville and numerous local stakeholders to improve environmental and public health outcomes in an area that consists of a predominantly low income and minority population. This area has a number of Superfund sites, Brownfields , vacant and abandoned lots or other properties where contamination is suspected and impacted waterways. Region 4 is working with its partners, including environmental justice community representatives, to address sites of concern and turn them into an opportunity for residents in the vicinity to collaborate with developers and revitalize their neighborhoods.

  • Milwaukee , Wisconsin - EPA Region 5 is working to further the redevelopment of the 30th Street Industrial Corridor. The corridor, a former rail line in the north-central part of the city, is home to low income, communities of color. This project seeks to improve the human, environmental and economic health of these neighborhoods by redeveloping Brownfields along the corridor, implementing environmentally preferable stormwater management practices, and developing urban agriculture.  

  • Port Arthur, Texas - EPA Region 6 is developing and implementing a comprehensive, cross-media project in this diverse city. More than 50 percent of its residents are African American and Hispanic. The city has many facilities including chemical plants, refineries and a hazardous waste incinerator. This project is being developed, with the support of other government agencies, in response to community-based organizations who have called upon EPA to look at the cumulative effects of multiple environmental impacts in Port Arthur.

  • Kansas City, Missouri and Kansas City, Kansas - EPA Region 7 has identified 11 neighborhoods in the metropolitan area that have many risk factors including poor housing conditions and increased exposure to environmental hazards. EPA is conducting an assessment to identify specific sources of pollution and will work with neighborhood leaders to prioritize community concerns. Strategies to address these concerns will be developed through these partnerships.  

  • Salt Lake City, Utah -  EPA Region 8 is working with six neighborhoods in central and west Salt Lake City, as the focus of a Children's Environmental Health and Environmental Justice initiative. These neighborhoods include: Glendale, Jordan Meadows, Poplar Grove, Rose Park, State Fairpark and Westpointe. The neighborhoods were selected based on the presence of several environmental risk factors, as well as the community's support and past participation in addressing environmental issues. EPA is working closely with the community and other federal, state and local agencies to identify children's exposure to contaminants from multiple pathways and will develop and apply tools to address those issues.  The State of Utah has developed a tracking system that will provide baseline health and environmental data and help the partnership achieve results.

  • Port of Los Angeles and Port of Long Beach, California - U.S. EPA Region 9 and the California Environmental Protection Agency's (CalEPA) Department of Toxic Substances Control (DTSC) are working together to coordinate inspection and enforcement activities in the densely populated communities along the Interstate 710 cargo truck corridor between the Ports of Los Angeles and Long Beach and northward to East Los Angeles.

    This effort will build upon the existing targeted inspection and enforcement efforts of Cal EPA's DTSC. This collaborative approach will solicit input from the communities on environmental problems and concerns and work with federal, state, and local agencies to focus inspection and compliance efforts on the most heavily affected, highest-priority areas.

  • Yakima, Washington - EPA Region 10 is addressing multiple environmental home health stressors in the Latino and tribal communities in the Yakima Valley. A coordinated effort between state, local, and non-profit partners is being used to address the range of exposures found in the community, with a primary focus on reducing exposure through contaminated private well drinking water. This is being accomplished by assessing homes with contaminated wells, providing ‘treatment at the tap' mitigation, and reducing pollution sources through available regulatory tools and best management practices.

Envrionmental Justice Small Grants Program

Grants & Programs Topics

Overview

Fiscal Year 2009 marked the 15th anniversary of EPA's Environmental Justice Small Grants Program (EJSG). Since its inception in 1994, the Program has awarded more than $20 million in funding to 1,130 community-based organizations, and local and tribal organizations working with communities who are facing environmental justice issues.

The Environmental Justice Small Grants Program (EJSG), supports and empowers communities working on solutions to local environmental and public health issues. The Program assists recipients in building collaborative partnerships to help them understand and address environmental and public health issues in their communities. Successful collaborative partnerships involve not only well-designed strategic plans to build, maintain and sustain the partnerships, but also to work towards addressing the local environmental and public health issues.

Top of Page

Fact Sheets

Top of Page

Grant Recipients

Top of Page

Emerging Tools for Local Problem Solving

EPA’s Role in Environmental Justice
On February 11, l994, the President issued Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” which identified three goals:

To focus federal agency action on the environment and human health conditions in minority and low-income communities.

To promote nondiscrimination in federal programs that substantially affect human health and the environment.

To provide minority and low-income communities greater access to information on, and opportunities for public participation in, matters relating to human health and the environment.
The President encouraged federal agencies to reinvent the way the nation approaches environmental justice so that our day-to-day efforts would be more effective in protecting the public health and environment. EPA has a leadership role in helping federal agencies implement this executive order.

About the Small Grants Program
EPA recognized that community involvement was critical to environmental decision-making and made a commitment to invest resources in projects that would financially benefit affected communities. In fiscal year 1994, the Office of Environmental Justice established the Small Grants Program to provide financial assistance to eligible community groups (e.g., community-based grassroots organizations, churches, other nonprofit organizations, tribal governments) to address local environmental problems.
Each year, approximately $1 million are made available for the Environmental Justice Small Grants Program. These funds are divided equally among the 10 EPA regions, where the actual grants are awarded and managed. Awards range from $10,000 to $25,000 each. The amount awarded in a given year can vary depending on the availability of funds.
Grant proposals submitted for the Environmental Justice Small Grants Program are evaluated within the EPA region where the project is located through competitive review and evaluation. Award decisions are made based on established criteria, which include geographic balance, diversity of project recipients, and sustainability of benefits of projects after the grant is completed. The review criteria also require the applicant to demonstrate strong community involvement.

Goals
• Meaningfully involve and engage the community in planning the redevelopment and reopening.
• Build partnerships among community stakeholders through which environmental and other community issues concerning the former landfill site can be addressed.
• Ultimately, convert back into a useful community asset.

• Enhance the community’s understanding of environmental and public health information systems.
• Generate information about pollution in the community.
• Build community capacity for identifying local environmental justice problems.
• Involve the community in designing and implementing activities to address these concerns.

• Educate and train residents and youth to implement energy efficiency improvements in their neighborhoods.

• Facilitate information exchange among those who are affected by poisoning.
• Allow for the formation of an important partnership with Gardeners.
• Build community capacity to address environmental justice concerns by enabling community members to implement solutions to correct a local problem.

• Employ an environmental justice specialist to initiate community/grassroots/government interaction.
• Build capacity among youth to identify environmental justice problems, enhance problem-solving, and actively participate in solutions for affected communities.
• Hold the first Environmental Justice Awareness Conference.

• Train a core of neighborhood outreach leaders who live near the incinerator in the science and law of medical incineration, environmental networking, and grassroots organizing.
• Through these leaders, create a partnership between the community and the industry.

• Clean up trash, refuse, and other impacts to water quality in the Watershed.
• Identify wildlife and plants that grow in the Watershed.
• Identify riparian areas and possibly map these areas in the Watershed.
• Grow and develop relationships with tribal members and tribal entities.

• Learn more precisely the health and quality of life issues raised by living near freeways.
• Learn about air quality and mechanisms to protect the community from airborne toxins.
• Quantify, translate, and present the knowledge gained to the public in order to promote increased participation in environmental decision-making.

• Establish a working group of Americans familiar with NEPA training needs and challenges.
• Conduct a NEPA training needs assessment.
• Compile and assess existing NEPA training materials.

• Develop a simple resource brochure that covers the basics of the effects of the indoor environment on respiratory health, written for low-literacy understanding and produced in English and Spanish.
• Host a meeting for community leaders to learn about the environmental justice issues surrounding asthma and other respiratory illness.
• Disseminate information packages to all day care centers and elementary schools in the target neighborhood. Send packets to 80 pediatricians and respiratory specialists who might treat patients in the target area.

• Educate communities about the issues of sewage lagoons and the impacts these lagoons might have on the environment and human health.
• Participate in a health fair to further disseminate information to the public about clean water and solid waste disposal.
• Work with the Community Environmental Health Assessment Team to educate the affected counties and to demonstrate the benefits of using alternative solutions to sewage lagoons.

• Revive a lake monitoring database and collect more information.
• Initiate community-based partnerships.
• Create opportunities for future collaborative efforts in protecting surface water and ground water from polluted runoff.
• Utilize data to monitor interstate pollution and to develop regional strategies for reducing air pollution.

• Detect, assess, and evaluate the effects on and risks to human health related to hazardous substances.
• Survey, research, collect, and analyze data, which will be used to expand scientific knowledge and the community’s understanding of the effects of exposure to asbestos.
• Acquire contact information for as many of the identified individuals as possible to establish baseline.

• Detect, assess, and evaluate the effects on and risks to human health from hazardous substances.
• Ensure that the research relates to “hazardous substances,” as defined by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 101(14).
• Research, collect, and analyze data, which will be used to expand the scientific knowledge and understanding of hazardous substances being transported.
• Expand the communities’ scientific knowledge and understanding of hazardous substance issuese.
• Train youth in approved research techniques.
• Publish a report documenting research results and outlining appropriate measures the community

• Train project participants to make presentations and assist them in facilitating the delivery of workshops and demonstrations that illustrate methods and resources related to healthy air, water, and soil.
• Perform hands-on environmental restoration work.
• Disseminate relevant information at all project events and make pertinent information available at project sites in English, Spanish, and Tongan.

• Use research to analyze and understand how air quality affects local low-income and minority communities.

• Inform rural residents about the health hazards associated with the improper management and/or storage of waste materials on their properties.
• Use outreach and education to facilitate the collection and recycling of waste products.
• Reduce the negative health impacts associated with incinerating and stockpiling waste on rural properties.

• Conduct onsite assessments of qualifying low-income residents referred by home-care workers and housing officials.

• Hold formal, classroom-style presentations featuring lectures, slides, posters, props, brochures, and pamphlets.
• Educate residents and the communities about the correlation between indoor quality and their health.

• Estimate particulate matter (PM) emission levels from heavy-duty mobile sources in the area.
• Monitor the concentrations of PM from those sources present in indoor air to better understand the levels of pollution to which residents are exposed.
• Help residents and environmental community workers to better organize and advocate for environmental justice rights, to identify sources of diesel pollution, and to bring together residents and business to improve environmental conditions.

• Produce a report that reveals new information about hazardous air pollutant emissions.

• In the same report, evaluate the risks exposure to hazardous air pollutants pose to the respiratory health

• Improve communications among native peoples and communities on oil and gas issues.
• Enhance native community capacity to identify and address environmental justice issues related to oil and gas development.
• Promote and enhance the native communities’ understanding of information needed to address oil and gas issues.

• Promote safe fishing and fish preparation.
• Organize community participation in cleanup initiatives.
• Encourage more aggressive actions to limit future discharge of toxins into the river.

• Increase community awareness about contaminated sites and sources of industrial air pollution.
• Educate the general public and policymakers about disproportionate environmental health risks.
• Increase community involvement in the Community Coalition for Environmental Justice’s (CCEJ’s) outreach, education, and advocacy efforts on environmental justice issues.

• Transfer oversight responsibilities from government agencies to community leaders within the community.
• Foster the framework and relationships necessary to address environmental justice issues through community outreach and the recruitment of stakeholders within the community.
• Expand the scope of environmental education.
• Assist in integrating volunteers into the Program.
• Conduct outreach presentations to low-income youth and families.

• Increase community understanding about environmental issues related to clean air and recycling.
• Conduct a comprehensive outreach campaign via public radio.
• Encourage public participation in protecting the environment.
• Provide printed information in Spanish.

• Create a process by which youth and their parents will become better educated and more involved with the environmental, programs and projects.
• Increase the capacity of youth and their parents to recognize and participate in finding solutions to the community problems of litter, dumping in the sea and on land, and improper disposal of household hazardous waste.

 

Subject Matter Contacts

Except for the mail code, these contacts all have the same address:

Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460

Subject Contact Mail Code Phone # Fax #
Air, indoor air, radiation, ozone, global warming, emissions trading Office of Air and Radiation
Wil Wilson (wilson.wil@epa.gov)
6101A 202-564-1954 202-564-1549
Native American, indigenous peoples, Alaskan Natives American Indian Environmental Office
Jill Nogi (nogi.jill@epa.gov)
4104 202-564-0804
Title VI Office of Civil Rights
Helena Wooden-Aguilar (wooden-aguilar.helena@epa.gov)
1201-A 202-343-9681
Enforcement, compliance, federal facilities, criminal enforcement (all media) Office of Enforcement and Compliance Assurance
Loan Nguyen (nguyen.loan@epa.gov)
2201A 202-564-4041 202-501-0701
Legal Office of General Council
David Coursen (coursen.david@epa.gov)
OGC legal advice is only available to EPA program offices, not to the public.
2322-A 202-564-0781 202-564-5541
Toxic chemicals, pesticides, farmworkers, toxics release inventory Office of Prevention, Pesticides & Toxic Substances
Fred Jenkins (jenkins.fred@epa.gov)
7409M 703-308-9597
Research, technology development Office of Reseach and Development
Jason Edwards (edwards.jason@epa.gov)
8104-R 202-564-5568 202-565-2925
Hazardous waste, land fills, Superfund, brownfields, spills Office of Solid Waste and Emergency Response
Pat Carey (carey.pat@epa.gov)
5101T 202-566-0199
Water, non-point sources, water discharges Office of Water
Alice Walker (walker.alice@epa.gov)
4102T 202-529-7534 202-269-3597
Grants & contracts Office of Admin. & Resources Mgt.
Leo Gueriguian (gueriguian.leo@epa.gov)
3102A 202-564-0388 202-564-1887
Information management Office of Environmental Information
Lorena Romero-Cedeno (romero-cedeno.lorena@epa.gov)
2812T 202-566-0978 202-566-0977
Policy analysis Office of Policy, Economics & Innovation
Kelly Maguire (maguire.kelly@epa.gov)
1807T 202-564-2273 202-566-2220
Congressional liaison Office of Congressional & Intergovernmental Relations
Carolyn Levine (levine.carolyn@epa.gov)
1301A 202-564-1859 202-501-1550
Public affairs Office of Public Affairs
Doretta Reaves (reaves.doretta@epa.gov)
1702A 202-564-7829 202-501-1773
Environmental justice Office of Environmental Justice
Jasmin Muriel (muriel.jasmin@epa.gov)
2201A 202-564-4287 202-501-0740

EJ Regional Contacts

Contact the regional coordinator for your state

REGION 1 (CT, ME, MA, NH, RI, VT)
REGION 2 (NJ, NY, PR, VI)
REGION 3 (DE, DC, MD, PA, VA, WV)
REGION 4 (AL, FL, GA, KY, MS, NC, SC, TN)
REGION 5 (IL, IN, MI, MN, OH, WI)
REGION 6 (AR, LA, NM, OK, TX)
REGION 7 (IA, KS, MO, NE)
REGION 8 (CO, MT, ND, SD, UT)
REGION 9 (AZ, CA, HI, NV, AS, GU)
REGION 10 (AK, ID, OR, WA)

REGIONAL CONTACTS OFFICE # FAX#
(CT, ME, MA, NH, RI, VT)
US EPA, REGION 1
Amy Braz
One Congress Street, 11th Floor
Boston, MA 02203-0001
E-mail: braz.amy@epa.gov
617-918-1346 617-918-0346
(NJ, NY, PR, VI)
US EPA, REGION 2
Terry Wesley
290 Broadway, Room 2637
New York, NY 10007
E-mail: wesley.terry@epa.gov
212-637-5027 212-637-4943
(DE, DC, MD, PA, VA, WV)
US EPA, REGION 3
Reginald Harris
1650 Arch St. (MC-3ECOO)
Philadelphia, PA 19103
E-mail: harris.reggie@epa.gov
215-814-2988 215-814-2905
(AL, FL, GA, KY, MS, NC, SC, TN)
US EPA, REGION 4
Cynthia Peurifoy
61 Forsyth Street
Atlanta, GA 30303
E-mail: peurifoy.cynthia@epa.gov
404-562-9649 404-562-9664
(IL, IN, MI, MN, OH, WI)
US EPA, REGION 5
Lara Lasky
77 West Jackson Blvd. C-14J
Chicago, IL 60604-3507
E-mail: lasky.lara@epa.gov
312-353-5614  312-582-5538
(AR, LA, NM, OK, TX)
US EPA, REGION 6
Shirley Augurson
Fountain Place, 12th Floor
1445 Ross Ave., (6RA-D)
Dallas, TX 75202-2733
E-mail: augurson.shirley@epa.gov
214-665-7401 214-665-6648
(IA, KS, MO, NE)
US EPA, REGION 7
Althea Moses
901 North 5th Street (ECORA)
Kansas City, KS 66101
E-mail: moses.althea@epa.gov
913-551-7649 913-551-9649
(CO, MT, ND, SD, UT)
US EPA, REGION 8
Art Palomares
1595 Wynkoop St.
Denver, CO 80202-1129
E-mail: palomares.art@epa.gov
303-312-6053
303-312-6191
(AZ, CA, HI, NV, AS, GU)
US EPA, REGION 9
Deldi Reyes
75 Hawthorne Street (CED-1)
San Francisco, CA 94105
E-mail: reyes.deldi@epa.gov
415-972-3795 415-947-8026
(AK, ID, OR, WA)
US EPA, REGION 10
Running Grass
1200 Sixth Avenue (CRE-164)
Seattle, WA 98101
E-mail: grass.running@epa.gov
206-553-2899 206-553-7176

In April 2009, the OIG identified 10 key management challenges for Fiscal Year 2009. Three of those challenges impact EPA’s management and enforcement capability:
1 EPA’s organization and infrastructure;
2 Oversight of delegations to States; and
3 Performance measurement.

we believe that the underlying issues persist.

EPA’s Organization and Infrastructure
In July 1970, the first EPA Administrator formally organized EPA based upon existing environmental legislation that encompassed discrete media programs for water, air, pesticides, radiation, and solid waste, as well as 10 regional offices and a laboratory structure inherited from other federal agencies. However, President Nixon’s Advisory Council on Executive Organization, also known as the Ash Council, recommended organizing EPA according to functional categories (e.g., monitoring, research, standard-setting, enforcement, assistance) rather than along media lines (e.g., air, water, land). This recommended organizational approach was intended to recognize the interrelated nature of pollution problems, acknowledge that pollutants cut across media lines, encourage balanced budget and priority decisions between component functions, and permit more effective evaluations of total program performance.
However, the realities of environmental legislation made this type of integration difficult and would require an incremental, three-phased approach. The first phase of EPA organization was dominated by its discrete medium orientation. The second phase followed a hybrid functional/media structure similar to EPA’s current organization. Finally, the third phase would eliminate the media-oriented program offices in favor of the functional units recommended by the Ash Council. This was never realized. Studies we reviewed indicate that EPA’s failure to move to this third phase may hinder EPA’s ability to effectively enforce and oversee environmental laws.
OIG work has also shown that EPA’s organization has impeded achievement of environmental goals and efficient use of resources. Recurring themes include: inadequate coordination between EPA headquarters offices; inconsistencies in enforcement among EPA’s Regions; inadequate national (Agency) guidance, procedures, or priorities on programs; a lack of strategic plans that link program missions, goals, and performance measures; and decentralized management contributing to allocation and resource management problems. For example:
In a review of EPA’s Drinking Water Program, it was unclear whether the Office of Enforcement and Compliance Assurance (OECA) was adequately coordinating its efforts with the Office of Ground Water and Drinking Water (OGWDW). OECA reported that it has “substantive, regular, and consistent” coordination with OGWDW on both rule development and enforcement, while other sources indicated that OECA’s enforcement priorities may be out of alignment with those of OGWDW.
In a review that assessed EPA’s oversight and assistance of tribal community water systems, we found that the five Regions we reviewed varied in the quality of oversight they provided to tribal community water systems. One Region failed to monitor for certain contaminants, chose not to enter known monitoring violations into the Safe Drinking Water Information System, and did not conduct enforcement actions against the systems that committed these violations.
 EPA relies heavily on guidance to communicate Agency policy and regulations. OIG work has shown a culture in EPA that treats guidance as non-binding to parties, including EPA Regions, and accepting of guidance that is incomplete, draft, or interim. This could lead to inconsistent implementation and impede EPA’s ability to effectively enforce necessary actions since private parties may perceive unfairness and the absence of boundaries on their activities.
 In a review of the Border 2012 Program, a joint U.S.-Mexico effort to improve the environment and protect the health of people living along the border, we found that success varied across the different media areas as well as by leadership despite a program structure aimed at reducing stove-piping. Program implementation varied depending on the Region. There was no systematic roadmap that defined the relationships between resources, activities, and intended outcomes; nor were there management controls to ensure that results were documented or that goals were being achieved.
 An OIG review found that EPA’s decentralized management of the Superfund program contributes to allocation and resource management problems. EPA spreads its Superfund appropriation across a variety of offices and Regions. This has limited EPA’s opportunities to effectively manage Superfund resources for cleanup.
Oversight of Delegations to the States
EPA’s mission is to protect human health and the environment. To accomplish its mission, EPA develops regulations and establishes programs that implement environmental laws. These programs may be delegated to State, local, and tribal agencies that request to take primacy of the program. Delegation, however, does not relieve EPA of its statutory and trust responsibilities for protecting human health and the environment. EPA performs oversight of State, local, and tribal programs in an effort to provide reasonable assurance that delegated programs are achieving their goals. EPA does not have the resources to effectively administer all its responsibilities directly. EPA relies heavily on local, State, and tribal agencies for compliance and enforcement and to obtain performance data. In its FY 2007 Performance and Accountability Report, EPA states it delegated the responsibility for issuing permits and for monitoring and enforcing compliance to the States and tribes.
A critical management challenge to EPA is oversight of its delegations to States. Federal environmental statutes grant EPA a significant role in implementing the intent of the law, and also authorize a substantial role for States. However, quality data is often lacking to ensure that the intent of the law is met. Also, Federal requirements establish consistency for businesses and within industries nationwide. States’ discretion adds flexibility to address specific circumstances and local issues. However, joint implementation and enforcement leads to special challenges in interpretations, strategies, and priorities.
Our evaluations have shown that EPA’s oversight of State programs requires
improvement for several reasons. These include inconsistent enforcement guidance
interpretation; States and Regions not meeting minimum reporting requirements;
differing standards for State delegation agreements among the Regions; disagreements on
enforcement priorities between OECA and the Regions; inaccurate data systems; and
internal control deficiencies. For example:
 We found that EPA did not provide effective enforcement oversight of major facilities with National Pollutant Discharge Elimination System (NPDES) permits in long-term significant noncompliance. EPA inconsistently applied guidance defining timely formal enforcement actions. Also, EPA guidance did not provide meaningful direction on what constitutes “appropriate” actions. Timely and appropriate formal enforcement actions are important to minimize additional pollutants from being discharged into the nation’s waters to ensure protection of human health and the environment. We estimated that up to 51 million pounds of excess pollutant loads were discharged during our review period by 44 facilities reviewed, representing loads that could have been minimized.
 EPA and States did not maintain complete and accurate records of NPDES compliance and enforcement activities. Many Region and State files were incomplete, and data in EPA’s information systems were incomplete and inaccurate. Further, Regions and States did not report inspection-related violations in EPA’s Permit Compliance System. An accurate history of the compliance and enforcement activities at a facility is important for oversight and making future enforcement decisions. The lack of accurate information inhibits EPA’s ability to provide effective oversight to NPDES major facilities and thus protect human health and the environment from excess levels of toxic or harmful pollutants.
 We found Regions and States did not always oversee industrial users discharging into wastewater treatment plants without approved programs. EPA was working on developing guidance for overseeing categorical and significant industrial users discharging to plants without approved programs, but had put it off due to other priorities.
 In a review of EPA’s oversight and assistance of tribal community water systems, we found internal control deficiencies existed in administering EPA’s oversight in some of the Regions we reviewed. To varying degrees, tribal drinking water records were incomplete due to a failure to maintain oversight of system operations and/or poor records management. Internal controls are an important safeguard for ensuring that systems operate as intended. Deficiencies in these controls may indicate that the systems are vulnerable to failure, resulting in increased risk to public health.
Conclusion
Mr. Chairman, EPA’s ability to effectively manage, oversee, and enforce the environmental laws under its jurisdiction, including the Clean Water Act, has been impeded by several factors including its current organizational structure, how it oversees State delegated authorities, and limitations in performance measurements. On the 37th anniversary of the Clean Water Act, we believe that a recommitment to the protection of the nation’s waters can be achieved by an EPA that is strategically aligned to uniformly enforce environmental statutes and provide consistent oversight of its Regions and State delegations. This will require a comprehensive review of EPA’s current organization and a commitment to implement best practices.

Can Sustainable Farming Feed the World?

by Francis Thicke

 

CONTACT:
Jalil Isa
isa.jalil@epa.gov

202-564-3226
202-564-4355

FOR IMMEDIATE RELEASE
September 22, 2010

EPA Hosts Historic Meeting on Environmental Justice

 

Obama administration cabinet members show commitment to healthy environment and strong economy for all Americans

 

WASHINGTON – Today, for the first time in more than a decade, U.S. Environmental Protection Agency Administrator Lisa P. Jackson and White House Council on Environmental Quality Chair, Nancy Sutley, reconvened the Interagency Working Group on Environmental Justice (EJ IWG) in a meeting held at the White House. The meeting, attended by five cabinet members, demonstrates the Obama administration's dedication to ensuring all Americans have strong federal protection from environmental and health hazards. Pollution like dirty air and contaminated water can have significant economic impacts on overburdened and low-income communities, driving away investment in new development and new jobs and exposing residents to potentially costly health threats. This historic gathering marks a recommitment to advancing the mandate of Executive Order 12898, “ Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations , ” which states that each agency, with the law as its guide, should make environmental justice part of its mission.

The role of the EJ IWG is to guide, support and enhance federal environmental justice and community-based activities. By coordinating the expertise and resources of federal government agencies, the EJ IWG will work to identify projects where federal collaboration can support the development of healthy and sustainable communities. The EJ IWG will also seek opportunities to provide green jobs training in communities in need and promote a clean energy economy.

Attendees at the meeting included Attorney General Eric Holder, Department of Justice; Secretary Ken Salazar, Department of Interior; Secretary Shaun Donovan, Department of Housing and Urban Development; Secretary Ray LaHood, Department of Transportation; Administrator Martha Johnson, General Services Administration; Carol Browner, senior advisor to the president on energy and climate change; John Holdren, director of the White House Office of Science and Technology Policy; Melody Barnes, director of the White House Office of Domestic Policy; and representatives from the following federal agencies: Labor, Health and Human Services, Energy, Education, Homeland Security, Commerce, Army, Agriculture and Defense, among others.

“Environmental challenges in low-income and minority communities are barriers to opportunity. Dirty air, polluted water and contaminated lands degrade health and the environment while discouraging investments and economic growth,” said EPA Administrator Lisa P. Jackson. “We believe that the burdens these communities face are best approached with collaborative efforts, built on the strengths brought by a team of different federal agencies. Revitalizing this workgroup creates an important chance to work together on environmental justice issues that have held back the prosperity of overburdened communities for far too long.”

“This country was built on the promise of equal opportunity for all of us, yet low-income families and minority communities shoulder a disproportionate amount of pollution and environmental degradation. We cannot and will not ignore these disparities,” said Nancy Sutley, chair of the White House Council on Environmental Quality. ”As the chair of the Council on Environmental Quality, I am committed to ensuring that environmental justice isn't just an afterthought - it's an integral part of our mission.”

“In too many areas of our country, the burden of environmental degradation falls disproportionately on low-income and minority communities – and most often, on the children who live in those communities,” Attorney General Eric Holder said. “Our environmental laws and protections must extend to all people, regardless of race, ethnicity, or socioeconomic status which is why the Department of Justice is committed to addressing environmental justice concerns through aggressive enforcement of federal environmental laws in every community.”

“At the Department of Transportation, one of our top priorities has been promoting livable communities in collaboration with HUD and EPA,” said U.S. Transportation Secretary Ray LaHood. “Through coordinated investments that improve access to affordable and sustainable housing and transportation opportunities, together we can improve the quality of life for communities across America .”

“As stewards of our natural resources and history, the Department of Interior has a special obligation to protect and promote our nation's resources for all communities and all persons,” said Secretary of the Interior Ken Salazar. “Every American deserves a healthy environment in which they can live, learn and play.”

“HUD joins with our colleagues in the Obama administration to make an unprecedented commitment to combating environmental justice discrimination that all too often affect disadvantaged communities,” said HUD Secretary Shaun Donovan. “At HUD we are committed to providing equal access to housing, mitigating risks to communities in disaster-prone areas, ensuring homes are free of health hazards, and working to create sustainable and inclusive communities across America so that a family's success is not determined by the zip code they live in.”

During the meeting, some immediate next steps for the EJ IWG group were identified; these include:

· Hold monthly EJ IWG meetings, including assigning senior officials from each agency to coordinate EJ activities.

· Organize regional listening sessions in 2011.

· Hold follow-up EJ IWG Principals Meetings in April and September 2011.

· Each agency will be tasked to develop or update their EJ strategy by September 2011.

· Plan a White House forum for EJ leaders and stakeholders on environmental justice.

Administrator Jackson highlighted examples of EPA's environmental justice efforts:

· Plan EJ 2014 —A four-year roadmap to help EPA develop stronger community relationships and increase the agency's efforts to improve environmental and health conditions in overburdened communities. The plan includes three main sections: Cross-cutting Agency Strategies, Tools Development, and Program Initiatives.

· EJ in Rulemaking Guidance —The “Interim Guidance on Considering Environmental Justice During the Development of an Action” is a step-by-step guide that helps EPA staff consider environmental justice at key points in the rulemaking process.

· Sustainable Communities Partnership —A collaborative Department of Housing and Urban Development, Department of Transportation, and EPA partnership to improve access to affordable housing, more transportation options, and lower transportation costs while protecting the environment in communities nationwide.

The principles of environmental justice uphold the idea that all communities overburdened by pollution – particularly minority, low income and indigenous communities – deserve the same degree of protection from environmental and health hazards, equal access to the decision-making process and a healthy environment in which to live, learn, and work. EPA serves as the lead for environmental justice issues in the federal government.

More information on the Interagency Working Group on Environmental Justice:

http://www.epa.gov/environmentaljustice/interagency/index.html

View photos from the meeting:

http://blog.epa.gov/administrator/2010/09/22/epa-hosts-historic-meeting-on-environmental-justice/

 

Subpart E--Procurement Standards of this part. Sec. 1274.902 Purpose (XXX 1995)

The purpose of this cooperative agreement is to conduct a shared resource project that will lead to REMINERALIZATION OF DEPLETED CROP LANDS .

This cooperative agreement will advance the technology developments and research which have been performed on IRON MOUNTAIN MINE . The specific objective is to OPTIMIZE AVAILABILITY OF MINERALS IN SOIL FOR CROPS .

This work will culminate in BETTER AND SAFER FOOD . Sec. 1274.903

 

Responsibilities (XXX 1995). (a) This cooperative agreement will include substantial [ EPA, DOJ, NOAA, NASA, DOE, DOI, FEMA, FWS, CALIFORNIA] _____________participation during performance of the effort. _______ and the Recipient agree to the following Responsibilities, a statement of cooperative interactions to occur during the performance of this effort . ??? and the Recipient shall exert all reasonable efforts to fulfill the responsibilities stated below. (b) ??? Responsibilities. Since ??? contractors may obtain certain intellectual property rights arising from work for ??? in support of this agreement, ??? will inform Recipient whenever ??? intends to use ??? contractors to perform technical engineering services in support of this agreement. The following responsibilities are hereby set forth with anticipated start and ending dates, as appropriate: ------------------------------------------------------------------------ Responsibility Start End ------------------------------------------------------------------------ ------------------------------------------------------------------------ (c) Recipient Responsibilities. The Recipient shall be responsible for particular aspects of project performance as set forth in the technical proposal dated ____________, attached hereto (or Statement of Work dated ____________, attached hereto.) The following responsibilities are hereby set forth with anticipated start and ending dates, as appropriate: ------------------------------------------------------------------------ Responsibility Start End ------------------------------------------------------------------------ ------------------------------------------------------------------------ Sec. 1274.904 Resource Sharing Requirements (XXX 1995). (a) NASA and the Recipient will share in providing the resources necessary to perform the agreement. ??? funding and non-cash contributions (personnel, equipment, facilities, etc.) and the dollar value of the Recipient's cash and/or in-kind contribution will be on a ________ ( ??? ) - ________ (Recipient) basis.

 

Congressional Oversight Panel Assesses the TARP on the Eve of Its Expiration

Finds Major Economic Weaknesses, Stigma, and Moral Hazard Remain

WASHINGTON, D.C. - The Congressional Oversight Panel today released its September oversight report, "Assessing the TARP on the Eve of Its Expiration." The Panel found that, although the Troubled Asset Relief Program (TARP) provided critical support to the financial markets at a time when market confidence was in freefall, the program has been far less effective in meeting its other statutory goals, such as supporting home values, retirement savings, and economic growth.

Under its original authorization, the TARP would have expired at the end of 2009. Late last year, however, the Secretary of the Treasury exercised his legal authority to extend the program until October 3, 2010, the latest date authorized by statute. This month, in anticipation of the final expiration of the TARP's most significant authorities, the Panel explored the program's overall effectiveness. The Panel found that:

Although the TARP quelled the financial panic in the fall of 2008, severe economic weaknesses remain even today. Since the TARP was authorized in October of 2008, 7.1 million homeowners have received foreclosure notices. Since their pre-crisis peaks, home values have dropped 28 percent, and stock indices -- which indicate the health of many Americans' most significant investments for college and retirement -- have fallen 30 percent. Given that Treasury was mandated by law to use the TARP to address these measures of the economy, their lingering weakness is cause for concern.

The TARP's extension served primarily to extend the implicit guarantee of the financial system. When the Secretary extended the TARP, he stated that any new use of funds would be limited to providing mortgage foreclosure relief, extending capital to small and community banks, and supporting the securitization market. He also noted that extending the TARP would preserve his authority to intervene swiftly in the event of another financial crash -- essentially prolonging the government's "implicit guarantee" of the financial system. In practice, this second justification proved by far the more significant, as Treasury did not add any additional funding to any programs intended to address the specific economic weaknesses identified by the Secretary.

The TARP's "stigma" has grown and may prove an obstacle to future financial stability efforts. Treasury's policy choices have been increasingly constrained by public anger about the TARP. For example, the TARP is today so widely unpopular -- due in part to shortcomings in Treasury's transparency and its implementation of TARP programs -- that some banks refused to participate in the Capital Purchase Program for fear of losing customers. The unpopularity of the TARP may mean that the government will not authorize similar policy responses in the future. Thus, the TARP's greatest consequence may be that the government has lost some of its ability to respond to financial crises.

Economists surveyed by the Panel raised severe concerns about moral hazard. The Panel sought the input of four prominent economists on the effectiveness of the TARP. These experts generally agreed both that the TARP was necessary to stabilize the financial system and that it had been mismanaged and could pose significant costs far into the future. Further, the economists unanimously felt that the program created significant moral hazard. TARP offered its funding on relatively generous terms, without requiring participating institutions to enter liquidation or receivership, remove failed managers, or wipe out existing shareholders. The fact that the government chose not to impose such stringent costs meant that the TARP's moral hazard costs were much greater than necessary.

The full report is available at http://cop.senate.gov/. The Congressional Oversight Panel will continue to issue monthly reports evaluating the TARP until the Panel's statutory authority expires on April 3, 2011.

The Congressional Oversight Panel was created to oversee the expenditure of the Troubled Asset Relief Program (TARP) funds authorized by Congress in the Emergency Economic Stabilization Act of 2008 (EESA) and to provide recommendations on regulatory reform. The Panel members are: J. Mark McWatters; Richard H. Neiman, Superintendent of Banks for the State of New York; Damon Silvers, Policy Director and Special Counsel for the AFL-CIO; Kenneth Troske, William B. Sturgill Professor of Economics at the University of Kentucky; and Elizabeth Warren, Leo Gottlieb Professor of Law at Harvard Law School.

 

TARP cop sees fraud cases rising

By David Lawder

WASHINGTON | Tue Sep 21, 2010 7:46pm EDT

WASHINGTON (Reuters) - The top bailout cop said evidence of fraud among banks that sought taxpayer funds was on the rise, and some of his investigations involve amounts exceeding $550 million.

Neil Barofsky, the special inspector general for the Troubled Asset Relief Program, told the Reuters Washington Summit on Tuesday that his office has 120 open investigations of banks that "reflect the full array of banks that applied for and received TARP funding."

These cases are likely to lead to criminal charges for more bank executives and founders, Barofsky said.

"I just see those numbers going up," he added.

Investigations by the SIGTARP, as his operation is known, so far have led to charges against eight bank executives, including Lee Farkas, former head of bankrupt mortgage lender Taylor, Bean and Whitaker.

Farkas is facing federal charges related to his participation in a scheme to fraudulently obtain $553 million in TARP funds for Montgomery, Alabama-based Colonial Bancshares. The investigation prevented the funds from being disbursed, and Colonial subsequently failed.

Barofsky said that some cases could top the Colonial case in terms of the dollar amount of attempted or actual theft from taxpayers. "We have investigations in, above, and below that range," he added.

The SIGTARP operation is expanding its staff and has opened branch offices in New York, Atlanta, Los Angeles and San Francisco to pursue these investigations, even as the $700 billion bailout program is set to cease new investments on October 3.

Barofsky, who rides around Washington in a black "plainclothes" Chevrolet Impala equipped with a siren and emergency lights, said SIGTARP will hit its peak staff and activity in the next two years, roughly trailing TARP's peak activity by about a year.

The operation will stay in business until the last dollar of bailout investments is repaid or written off, and because some programs could last 10 years, SIGTARP may have another eight to run. But Barofsky said it would likely scale back within a few years as investments are exited.

Barofsky also said he will audit the General Motors Co GM.UL initial public offering soon after it is completed, with the aim of correcting any deficiencies in the process to aid the government's exit from other investments, such as Chrysler Group, insurer American International Group ( AIG.N ) and automotive lender GMAC Financial Services.

AIG PROBE CONTINUING

Barofsky also said his staff is deep into an investigation of the New York Federal Reserve Bank's disclosures about controversial taxpayer-funded payments to AIG counterparty banks as part of the insurer's massive bailout.

Last January, the U.S. House of Representatives Committee on Oversights and Investigations, subpoenaed hundreds of thousands of pages of Fed documents involving the $62 billion in payments to Wall Street and foreign bank to liquidate credit default swap contracts written by AIG. However, the Fed did not provide the same documents to SIGTARP for a previous audit it conducted on the same bank payments.

Disclosure of the payments, often referred to as a "back door bailout" for banks, came months after they were made and fueled public anger over the $180 billion AIG rescue. Treasury Secretary Timothy Geithner, who ran the New York Fed at the time, denied any involvement in the disclosure decisions, but faced calls in Congress to resign over the controversy.

Judge refuses to dismiss AIG lawsuit

(Reuters) - A judge refused to dismiss a securities fraud lawsuit accusing American International Group Inc ( AIG.N ) of misleading investors about its exposure to subprime mortgages, which led to a liquidity crisis and $182.3 billion of federal bailouts.

Monday's ruling by U.S. District Judge Laura Taylor Swain allows the case to go forward and could pave the way for a trial over AIG's near collapse. The government rescue led taxpayers to take a nearly 80 percent stake in the New York-based insurer.

AIG spokesman Mark Herr declined to make an immediate comment.

Investors led by the State of Michigan Retirement Systems accused AIG, executives and directors of failing to disclose the risks that AIG had taken on through its portfolio of credit default swaps (CDS) and a securities lending program.

Swain wrote that the allegations in the class-action lawsuit were sufficient to suggest there was "a strong inference of fraudulent intent" in how AIG communicated publicly about the risks in the portfolio of credit default swaps.

She also said that plaintiffs made sufficient arguments to claim that AIG "materially misled the market" in hiding its "expansive" CDS underwriting, repeatedly expressing confidence in its ability to manage risk and justifying a May 2008 capital raising.

Among the defendants are Martin Sullivan, a former AIG chief executive; Joseph Cassano, who ran AIG's Financial Products unit, which managed the CDS portfolio; current and former directors; 34 banks that underwrote AIG securities, and former accountant PricewaterhouseCoopers LLP.

The lawsuit covers investors who owned AIG securities between March 16, 2006, and September 16, 2008, when AIG received its first bailout.

E. Powell Miller, a lawyer for the lead plaintiff, declined to make an immediate comment, saying he had yet to confer with his client.

Brad Karp, a lawyer for the banks, declined to make an immediate comment. James Gamble, a lawyer for the outside directors, declined to comment. Lawyers for Sullivan, Cassano and PwC did not immediately return calls seeking a comment.

Shares of AIG rose $1.67, or 4.6 percent, to $38.14 in afternoon trading on the New York Stock Exchange.

The case is In re: American International Group Inc 2008 Securities Litigation, U.S. District Court, Southern District of New York, No. 08-05072.

(Reporting by Jonathan Stempel; Editing by Maureen Bavdek and Steve Orlofsky)

Oct. 23, 2010

A New York judge held former American International Group Inc. Chief Executive Maurice “Hank” Greenberg liable for damages on a reinsurance transaction that state Attorney General Andrew Cuomo said helped the insurer hide losses.

New York State Supreme Court Justice Charles Ramos also found former Chief Financial Officer Howard Smith liable on the transaction, which involved an entity called Capco Reinsurance Co. It was allegedly used to hide more than $200 million of losses from an auto warranty insurance program.

 

Department of The Interior,

Office of Indian Affairs, October 15, 1850.

Gentlemen: I have the honor to enclose herewith a copy of a letter from the Secretary of the Interior, by which you will find that your functions and salaries as Indian agents are suspended, and that you are ap pointed, with the sanction of the President, commissioners "to hold treaties with various Indian tribes in the State of California," as provided in the act of Congress approved September 30, 1850. Your commissions are also enclosed.

Your compensation as provided by law will be eight dollars per day for every day you are actually employed, and ten cents per mile for your travel, by the usually travelled roule to your place of destination. After your arrival in the country in which your duties lie, you will be allowed your actual travelling expenses from place to place where duty may call you.

You will be allowed a secretary, to be appointed by you after your arrival in California, whose compensation must not exceed five dollars per day for his services, and his actual travelling expenses will be allowed. It is not probable that his services will be required for the whole time continuously, and you will therefore employ him only for such time as may be actually necessary.

The services of interpreters will be indispensable in your negotiations. You are therefore authorized to employ such number and for such periods as you may find requisite, confining yourselves to the smallest number, for the shortest periods and for the lowest compensation that competent persons can be obtained for. These precautions of economy are made solely with reference to the small amount of the appropriation, when compared with the great object to be attained.

The first-named gentleman of your board, being present, has been intrusted with the duties of disbursing agent of the commission, and the sum of $25,000—the whole amount of the appropriation—has been placed in his hands for disbursement. The other two commissioners, together with all other expenses of the commission, will be paid by him.

You will find, on your arrival in California, Adam Johnson, esq., subagent at San Joachim, from whom yon will doubtless receive much valuable information, as his residence in the country for considerably more than a year has enabled him to collect a great deal relating to the Indian tribes, their location, their manners, habits, customs, disposition towards the whites and each other, and the extent of civilization to which they have arrived.

Mr. Johnson will be directed to afford you all the aid in his power and give you all the information in his possession that may be of use to you in the discharge of your duties.

The department is in possession of little or no information respecting the Indians of California, except what is contained in the enclosed copies of papers, a list of which is appended to these instructions; but whether even these contain sufficient data to entitle them to full confidence will be for you to judge, and they are given to you merely as points of reference.

As set forth in the law creating the commission, and the letter of the Secretary of the Interior, the object of the government is to obtain all the information it can with reference to tribes of Indians within the boundaries of California, their manners, habits, customs, and extent of civilization, and to make such treaties and compacts with them as may seem just and proper. On the arrival of Mr. McKee and Mr. Barbour in California, they will notify Mr. Wozencraft of their readiness to enter upon the duties of the mission. The board will convene, and, after obtaining whatever light may be within its reach, will determine on some rule of action which will be most efficient in attaining the desired object, which is by all possible means to conciliate the good feelings of the Indians, and to get them to ratify those feelings by entering into written treaties, binding on them towards the government and each other. You will be able to judge whether it will be best for you to act in a body, or separately in different parts of the Indian country.

It Ls expected that you will keep a journal of your daily proceedings, and report fully to this office everything that occurs in your operations. Copies of these reports you will forward from time to time, the whole to be reserved by you for a general report, accompanied by such treaties as you may make, when your mission shall have been brought to a close.

Another commission has been authorized, consisting of Messrs. C. S. Todd, Robert B. Campbell and Oliver P. Temple, to procure information and make treaties with the Indians on the borders of Mexico. Should you meet at any time, which is scarcely to be expected, you will cooperate and act in concert, so far as may be agreed on between you; and it is requested that whenever this may be the case there will be no misunderstanding as to your relative powers or collision in your understanding of your relative duties, it being regarded that each board is independentof the other; and it is expected that all intercourse between them will be harmonious.

Very respectfully, your obedient servant,

A. S. LOUGHERY,
Acting Commissioner.

Redick Mckee, Geo. W. Barbour, and 0. M. Wozencraft,

Commissioners.

P. S.—Since writing the above, a telegraphic communication has been received from Mr Wozeucraft, at New Orleans; and he has been notified through the same channel that his commission and a triplicate of these instructions will be sent to him at that place.

Another commission has been authorized, consisting of R. McKee, George W. Barbour, and O. M. Wozencraft, to make treaties with the Indians in California. Should you meet at any time, which is scarcely to be expected, you will co operate and act in concert so far as may be agreed on between you; and it is requested that, whenever this may be the case, there will be no misunderstanding as to your relative powers, or collision in your understanding of your relative duties—it being understood that each board is independent of the other, and all intercourse between them will be harmonious.

It is desirable that you should, from time to time, report your progress to this office, accompanied by such views as you may deem of importance or interest. It is not expected, however, that you will make any formal report until the close of your mission, when you will make a general one of all your proceedings, embracing your journal.

Very respectfully, your obedient servant,

A. S. LOUGHERY,

Acting Commissioner.

To C. S. Tood, Robert B. Campbell,

and Oliver P. Temple, Commissioners.

 

On July 8, 1850, President Millard Fillmore appointed Wozencraft as an Indian Agent of the United States. [ 4 ] [ 19 ] Salary and expenses were not provided to Wozencraft for this appointment. On October 15, 1850 his title as Indian Agent was suspended and he, Redick McKee and George W. Barbour were appointed "commissioners 'to hold treaties with various Indian tribes in the State of California,' as provided in the act of Congress approved September 30, 1850." In that role Wozencraft was paid eight dollars per day plus ten cents per mile travelled. [ 20 ]

Between March 19, 1851 and January 7, 1852 Wozencraft, McKee and Barbour traversed California and negotiated 18 treaties with Native American bands. [ 3 ] The treaties were submitted to the United States Senate on June 1, 1852. They were considered and rejected for ratification by the Senate in closed session . The treaties were then sealed from public record until January 18, 1905. [ 21 ] [ 22 ] [ 23 ]

Fillmore removed Wozencraft's standing as an Indian Agent on August 28, 1852. [ 22 ]

   

Treaty of Peace

Made and concluded at Reading's Ranch, on Cottonwood Creek, California, August 16, 1851, between United States Indian Agent O. M. Wozencraft of the one part and the Chiefs, Captains and Head men of the following tribes or bands, viz., Noe-ma, Noema Y-lac-ca, Noi-me, Noi-ma.

Article 1 st

"The several tribes or bands above mentioned do acknowledge the United States to be the sole and absolute sovereign of all the territory ceded to them by a treaty of peace made between them and the Republic of Mexico .

Article 2 nd

"The said tribes or bands acknowledge themselves jointly and severally under the exclusive jurisdiction, authority and protection of the United States, and hereby bind themselves hereafter to refrain from the commission of all acts of hostility and aggression towards the government or citizens thereof and to live on terms of peace and friendship among themselves and with all other Indian tribes which are now or may come under the protection of the United States; and furthermore, bind themselves to conform to and be governed by the laws and regulations of the Indian Bureau, made and provided therefore by the Congress of the United States.

Article 3 rd

"To promise the settlement or improvement of said tribes or bands, it is hereby stipulated and agreed that the following district of county in the state of California shall be and is hereby set apart forever, for the sole use and occupancy of the aforesaid tribes or bands, to wit: 

"Commencing at a point at the mouth of Ash Creek, on the Sacramento River running up the east branch of said stream twenty five miles, thence on a line due north to the Pit Fork of said river, thence down said river to the place of beginning.  "It is further understood and agreed upon by both parties that the tribes or bands of Indians living upon the Shasta, Nevada and Coast Range shall be included in the said reservation, and should said band not come in, then the provisions, etc., as set apart in this treaty to be reduced in a ratio commensurate with the number signing said treaty provided, that there is reserved to the United States government the right of way over any portion of said territory, and the right to establish and maintain any military post or posts, public buildings, school houses, houses for agents, teachers and such others as they may deem necessary for their use or the protection of the Indians.  The said tribes or bands and each of them hereby engage that they will never claim any other lands within the boundaries of the United States nor ever disturb the people of the United States in the free use and enjoyment thereof.

Article 4 th  

"To aid the said tribes or bands in their subsistence while removing to and making their settlement upon the said reservation, the United States, in addition to the few presents made them at this council will furnish them free of charge with five hundred (500) head of beef cattle to average in weight five hundred (500) pounds, seventy five (75) sacks of flour, one hundred (100) pounds each within the term of two years from the date of this treaty.

Article 5 th

"As early as convenient after the ratification of this treaty by the President and Senate, in consideration of the promise and with a sincere desire to encourage said tribes in acquiring the arts and habits of civilized life, the United States will also furnish them with the following articles, to be divided among them by the agent according to their respective numbers and wants during each of the two years succeeding the said ratification: "One pair of strong pantaloons and one red flannel shirt for each man and boy, one linsey gown for each woman and girl, 2000 yards calico and 500 yards brown shirting, twenty pounds Scotch thread and 1000 needles, six dozen thimbles, two dozen pairs of scissors, one 2 ½ pound mackinaw blanket for each man and woman over 15 years of age, 1000 pounds of iron, 100 pounds of steel, and in like manner in the first year for the permanent use of the said tribes and as their joint property, viz:  "Seventy-five brood mares and four stallions, 500 milch cows and sixteen bulls, twenty-one yoke work cattle with yokes and chains, ten work mules or horses, twenty-two plows, assorted sizes, seventy-five garden or corn hoes, twenty-five spades, four (4) grindstones.  "The stock enumerated above and the product thereof and no part or portion thereof shall be killed, exchanged, sold or otherwise parted without the consent and direction of the agent.

Article 6 th

"The United States also will employ and settle among said tribes at or near their towns or settlements, one practical farmer who shall superintend all agricultural operations with two assistants of practical knowledge and industrious habits; one carpenter, one wheelwright, one blacksmith, one principal school teacher, and as many assistant teachers as the President may deem proper to instruct said tribes in reading, writing, etc. and in the domestic arts upon the manual labor system, all the above named workmen and teachers to be maintained and paid by the United States for the period of five years and as long thereafter as the president shall deem advisable. 

"The United States will also erect suitable schoolhouses, shops and dwellings for the accommodation of the school teachers and mechanics above mentioned and for the protection of the public property.  "In testimony whereof the parties have hereunto signed their names and affixed their seals this sixteenth day of August in the year of our Lord one thousand eight hundred and fifty one. 

"Signed, sealed and delivered in the presence of, after being fully explained. 

                                 (Signed)

                                J. McKinstry; B.S.Maj.A.S.M.; O.M.Wozencraft, M.S.J.M.

                                For and in behalf of the Noi-Ma, Oio-Me, His mark X.

                                For and in behalf of the Noe-Ma, Chip-Chim, His mark X.

                                For and in behalf of the Y-Loc-Ca, Cha-Oo-Ga, His  mark X.

                                For and in behalf of the No-Ma,Chip-Cho-Chi-Cas, His mark X.

                                For and in behalf of the Noi-Ma, Nem-Ko-De, His mark X.

                                For and in behalf of the Oy-Lac-Ca, Num-Te-Ra-Re-Mau,

                                      His mark X,  Pau-Te Las, His mark X, Do-Li-In-Ckla,

                                      His mark X,  Num-Te-Re-Muck, His mark X.            

                                S.B. Sheldon, Alexander Love.

Konkow Valley Band of Maidu
1185 18th Street Oroville, CA 95965

(G.)

TREATY MADE AND CONCLUDED AT BIDWELL'S RANCH, ON CHICO CREEK, AUGUST 1, 1851, BETWEEN O.M.WOZENCRAFT, UNITED STATES INDIAN AGENT, AND THE CHIEFS CAPTIANS AND HEADMEN OF THE MI-CHOP-DA, ES-KUIN, ETC., TRIBES OF INDIANS.

A treaty of peace and friendship made and concluded at Bidwell's Ranch, on Chico Creek, California, between the United States Indian Agent, O. M. Woxencraft, of the one part, and the captains and head men of the following tribes, viz: the Mi-chop-da, Es-kuin, &c.

ARTICLE 1. The several tribes above mentioned do acknowledge the United States to be the sole and absolute sovereign of all the soil and territory ceded to them by a treaty of peace made between them and the republic of Mexico.

ARTICLE 2. The said tribes of Indians acknowledge themselves, jointly and severally, under the exclusive jurisdiction, authority and protection of the United States, and hereby bind themselves hereafter to refrain from the commission of all acts of hostility and aggression towards the government or citizens thereof, and with all other Indian tribes which are now or may come under the protection of the United States; and furthermore bind themselves to conform to and be governed by the laws and regulations of the Indian bureau, made and provided therefor by the Congress of the United States.

ARTICLE 3. To promote the settlement and improvement of said tribes or bands, it is hereby stipulated and agreed that the following district of country, in the State of California, shall be and is hereby set apart for the sole use and occupancy of the aforesaid tribes of Indians, to wit: commencing at a point on the Feather river, two miles above the town of Hamilton, and extending thence northwesterly to the northeast corner of Neal's grant, thence northwesterly along the boundries of Neal's, Hensley's and Bidwell's grant to the northeast corner of the last named grant, thence northeasterly six miles, thence southeasterly parallel with the line extending from the begining point to the northeast corner of Bidwell's grant to Feather river, and thence down said river to the place of begining. Provided , That there is reserved to the government of the United States the right of way over any portion of said territory, and the right to establish and maintain any military post or posts, public buildings, school houses, houses for agents, teachers, and such others as they may deem necessary for their use or the protection of the Indians. The said tribes or bands, and each of them, hereby engage that they will never claim any other lands within the boundries of the United States, nor ever disturb the people of the United States in the free use and enjoyment thereof.

 ARTICLE 4. To aid the said tribes of Indians in their subsistence while removing to and making their settlement upon the said reservation, the United States will furnish them, free of all charge, with two thousand five hundred head of beef-cattle to average in weight five hundred pounds, three hundred and fifty sacks of flour of one hundred pounds each, within the term of twoyears from the date of this treaty.

ARTICLE 5. As early as convenient after the ratification of this treaty by the President and Senate, in consideration of the promises, and with a sincere desire to encourage said tribes in acquiring the arts and habits of civilized life, the United States will also furnish them with the following articles, (to be divided among them by the agent according to their respective numbers and wants,) during each of the two years succeeding the said ratification, viz: one pair strong pantaloons and one red flannel shirt for each man and boy; one linsey gown for each woman and girl; seven thousand yards calico, seventeen hundred yards of brown sheeting, seventy pounds Scotch thread, four dozen pairs of scissors, fourteen dozen thimbles, five thousand needles, one two and a half point Mackinaw blanket for each man and woman over fifteen years of age; seven thousand pound of iron and six thousand pounds of steel; and in like manner in the first year for the permanent use of said tribes, and as their joint property, viz: one hundred and thirty brood-mares and seven stallions, six hundred young cows, thirty-six bulls, twenty yoke of working oxen with yokes and chains, twenty work mules or horses, forty-two ploughs, assorted sizes, three hundred and forty corn hoes, one hundred and forty spades, and twenty grindstones. Of the stock enumerated above, and the product thereof, no part or portion shall be killed, exchanged, sold, or otherwise parted with, without the consent and direction of the agent.

ARTICLE 6. The United States will also employ and settle among said tribes, at or near their towns or settlements, one practical farmer, who shall superintend all agricultural operations, with two assistants, men of practical knowledge and industrious habits; one carpenter, one wheelwright, one blacksmith, oneprincipal school-teacher, and as many assistant teachers as the President may deem proper to instruct said tribes in reading, writing, &c., and in the domestic arts upon the manual labor system; all the above workmen and teachers to be maintained and paid by the United States for the period of five years, and as long thereafter as the President shall deem advisable. The United States will also erect suitable school houses, shops and dwellings for the accommodation of the school-teachers, mechanics, agriculturists and assistants above specified, and for the protection of the public property.

In testimony whereof, the parties have hereunto signed their names and affixed their seals this first day of August, in the year of our Lord one thousand eight hundred and fifty-one.

O.M.WOZENCRAFT

United States Indian Agent .

For and in behalf of the Mi-chop-da .

LUCK-Y-AN, his x mark [SEAL]

For and in behalf of the Es-kuin .

MO-LA-YO, his x mark [SEAL]

For and in behalf of the Ho-lo-lu-pi .

WIS-MUCK, his x mark [SEAL]

For and in behalf of the To-to .

WE-NO-KE, his x mark [SEAL]

For and in behalf of the Su-nus .

WA-TEL-LI, his x mark [SEAL]

For and in behalf of the Che-no .

YO-LO-SA, his x mark [SEAL]

For and in behalf of the Bat-si .

YON-NI-CHI-NO, his x mark [SEAL]

For and in behalf of the Yut-duc .

SO-MIE-LA, his x mark [SEAL]

For and in behalf of the Sim-sa-wa .

PO-MA-KO, his x mark [SEAL]

Signed, sealed, and delivered, after being fully explained, in presence of --

Edw. H. Fitzgerald, Brevet major first dragoons .

George Stoneman, Lieutenant first dragoons .

Thomas Wright, second lieutenant second infantry .

J Budwell.

Executive Chamber, May 28, 1852.

To the Senate of the United States:

I communicate to the Senate herewith, for its constitutional action thereon, eighteen treaties negotiated with Indian tribes in California, as described in the accompanying letter of the Secretary of the Interior dated the 22d ultimo, with a copy of the report of the superintendent of Indian affairs for the State of California, and other correspondence in relation thereto.

MILLARD FILLMORE.

Washington, June 1, 1852.

The messages were read.

On motion by Mr. Dawson,

The Senate, by unanimous consent, proceeded to consider the nomination of John W. W. Snead ; and

Resolved, That the Senate advise and consent to his appointment, agreeably to the nomination.

A treaty of peace and friendship made and entered into at Camp Belt, on King's River, in the State of California, on the thirteenth day of May, eighteen hundred and fifty one, between George W. Barbour, one of the commissioners appointed by the President of the United States to make treaties with the various Indian tribes in the State of California, and having full anthority to do so, of the first part, and the chiefs, captains, and headmen of the following tribes of Indians, to wit: The Ta-ches, Cah-wia, Yo-kol, Ta lum-ne, Wie-ohum-ne, Hol cu-ma. To-eueche, Tu-huc-mach, In-tim-peach, Choi-nuck, We-roil-ches, and No-tontoes, of the second part, was read the first time.

A treaty of peaee and friendship made and entered into at Camp Keyes, on the Cabwia River, in the State of California, on the thirtieth day of May, eighteen hundred and fifty-one, between George W. Barbour, one of the commissioners appointed by the President of the United States to make treaties with the various Indian tribes in the State ot California, and having full anthority to do so, of the first part, and the chiefs, captains, and headmen of the following tribes of Indians, to wit: Ko ya-te, Wo-la si. Uu chow-we, Waek-sa che, Pal wisha, Po-ken welle, and Ya-wil-chine, of the second part, was read the first time.

A treaty of peace and friendship formed and conclnded at Camp Burton, on Paint Creek, in the State ot California, on the third day of June, eighteen hundred and fifty-one, between George W. Barbour, one of the commissioners appointed by the President of the United States to make treaties with the various Indian tribes in the State of California, and having full anthority to act, of the first part, and the chiefs, captains, and headmen of the following tribes ot Indians, to wit: Chu-nute, Wowol, Yo lum-ne, and Co ye tic, of the second part, was read the first time.

A treaty of peace and friendship made and entered into at Camp Persifer F. Smith, at the Texan Pass, in the State of Califoi uia, on the tenth day of June, eighteen hundred and fifty-one, between George W. Barbour, one of the commissioners appointed by the President of the United States to make treaties with the various Indian tribes in the State of California, and having full anthority to act, of the first part, and the chiefs, captains, and headmen i f the following tribes of Indians, to wit: Castake, Texon, San Imirio, Uvas, Carises, Buena Vista, Sena-hu-ow, Holo-cla-me, Soho-nuts, To-ci a, and Hoi mi-uh, of the second part, was read the first time

A treaty of peace and friendship made and conclnded at Dent's and Vantine's Crossings, on the Stanislans River, California, between the commissioner plenipotentiary of the United States of America, of the one part, and the chiefs, captains, and headmen of the Ion ol-umnes,Wechilla,Suca uh,Co to planemiS,Chap-pah-sims, and Sage-wom nes tribes, of the other part, on the twenty eighth day of May, in the year of our Lord eighteen hundred and fifty oue, was read the first time.

A treaty of peace and friendship made and conclnded at Camp Union, near the Yuba River, between the United States Indian agent, O. M. Wozencraft, of the one )>art, and the chiefs, captains, and headmi n of the following tribes, viz: Das pia ya do, Yol-la mer, Wai-de-pa-can, Ono-po-ma, Mon-e-da, Wan-nuch, Nem-shaw, Bem pi, Ya-cum-na tribes, of the other part, ou the eighteenth day of July, in the year of our Lord eighteen hundred and fifty-one, was read the first time.

A treaty of peace and friendship made and conclnded near Bidwell's Ranch, on Chico Creek, between the United States Indian agent, D. M. Wozencraft, of the one part, and the chiefs, captains, and headmen of the following tribes, viz: Miehop-da, Es kuin, Ho-lo-lu-pi, To-to, Su-nus, Che uo, Bat-si, Yut-duc, Sim-sa-wa tribes, of the other part, on the first day of August, in the year of our Lord eighteen hundred and fifty-one, was read the first time.

A treaty of peace and friendship made and conclnded at Reading's Rancho, on Cottonwood Creek, California, between the United StateR Indian agent, O. M. Wozencraft, of the one part, and the chiefs, captains, and headmen of the following tribes or bands, viz: Noe-iua, Noema, Y. Lac-ca, Noi-me, Noi-me, on the sixteenth day of August, eighteen hundred and fifty one, was read the first time.

A treaty of peace and friendship made and conclnded at Camp Colus, on Sacramento River, California, between the United States Indian agent, O. M. Wozencraft, of the one part, and the chiefs, captains, and headmeu of the following tribes or bands, viz : Coins, Willeys, Co-ha-na, Tat nah, Cha, Doc, Duo, Cham-met-co, Toe-de, on the ninth day of September, in the year of our Lord eighteen hundred and fifty one, was read the first time.

A treaty of peace and friendship made and conclnded at the Fork of Cosnmnes River, between the United States Indian agent, O. M. Wozencraft, of the one part, and the chiefs, captains, and headmen of the following tribes, viz: Cu-ln, Yas si, Loo lum-ne, and Wo-pnm-nes, on the eighteenth day of September, in the year of our Lord eighteen hundred and fifty one, was read the first time.

A treaty of peace and friendship made and conclnded at the village of Temecula, California, between the United States Indian agent, O. M. Wozencraft, of the one part, and the captains and headmen of the following nations, viz: The nation of San Luis Rey Indians, the Kah-w6as, and the tribe of Co-com-cahras, on the fifth day of Jannary, in the year of our Lord eighteen hundred and fifty-two, was read the first time.

A treaty of peace ami friendship made and conclnded at the village of Siinta Ysabel, California, between the United States Indian agent, O. M. Wozencraft, of the one part, and the captains and headmen of the nation of Disquinos Indians, on the seventh day of Jannary, in the year of our Lord eighteen hundred and ttftv -two, was read the first time.

A treaty made and conclnded on the nineteenth day of March, in the year eighteen hundred and fifty-one at Camp Fremont, near the Little Mariposa River, in the State of California, between Redick McKee, George W. Barbour, and Oliver M. Wozencraft, commissioners appointed by the President of the United States to treat with the various tribes of Indians in the State of California, of the one part, and the chiefs, captains, and headmen of the Si-yan-te, Po-to yan-te, Coco noon, Apangas-se, Aplache, and A wal-a die tribes of Indians, of the other part, was read the first time.

A treaty of peace and friendship made and conclnded at Camp Barbour, on the San Joaquin River, California, between Redick McKee, George W. Barbour, and O M. Wozencraft, commissioners thereto specially appointed on the part of the United States, and the undersigned chiefs, captains, and headmen of the tribes or bands of Indians now in council at thiscainp, known as the How-ech ees, Chook-chanees, Chow chil lies. Poho nee-chees, and Nook-choos, which five tribes or bands, acknowledge Nai yak-gna as their principal chief: also the Pit-cat-chees, Cassons, Toom-nas, Tallin chees, and Pos-kesas, which five tribes or bands acknowledge Tom-quit as their principal chief; also the Wa cha-et, Itachees, Cho-e nem-nees, Cho ki-men as, We mal-ches, and No-to-no tos, which six tribes or bands acknowledge Pas-qnal as their principal chief, on the twenty-ninth day of April, anno Domini eighteeu hundred and fifty-one, was read the first time.

A treaty of peace and friendship made and conclnded at Camp La pi-yu-ma, on the south side of Clear Lake, between Redick McKee, one of the Indian agents specially appointed to make treaties with the various Indian tribes in California, on the part of the United States, and the undersigned chiefs, captains, and headmen of the tribes or bands of Indians now in council at this camp, known as the Ca-bu-na-po tribe, represented by the chief Ju lio and captains ; Ha bi-na po tribe, represented by the chief Pri e-to and his captains; Dano-habo tribe, represented by the chief Ku-kee; Mo-al kai tribe, represented by the chief Moh shan and his captains; Che-com tribe, represented by the chief Cal e-u-hin and his captains; How ku-ma tribe, represented by the chief Chi bee and his captains; Cha nel-kai tribe, represented by the chief Con chn, and the Me dam-a rec tribe, represented by the chief Coe-u-e, on the twentieth day of August, anno Domini eighteen hundred and fifty-one, was read the first time.

A treaty of peace and friendship made and conclnded at Camp Fernando Feliz, on Russian River, California, between Redick McKee, one of the Indian agent s specially appointed to make treaties with the various Indian tribes in California, on the part of the United States, and the undersigned chiefs, captains, and headmen of the tribes or bands of Indians now in council at this camp, known as the Sai-uelle tribe, represented by the chief Chas-kan and captains; Yu-ki-as tribe,represented by the chief Ko-yo-to was-sa and captains; Mas-sn ta-ka-ya tribe, represented by the chief Cal-pel la and captains; Po mo tribe, represented by the chief Chi-bem, on the twenty-second day of August, anno Domini eighteen hundred and fifty-one, was read the first time.

A treaty of peace and friendship made and conclnded at Camp Klamath, at the junction of the Klamath and Trinity Rivers, between Redick McKee, one of the Indian agents specially appointed to make treaties with the various Indian tribes in California, on the part of the United States, and the chiefs, captains, and headmen of the tribes or bands of Indians now in council at this camp, representing the Poh lik or Lower Klamath, the Peb-tsick or Upper Klamath, and the Hoo-pah or Trinity River Indians, containing also stipulations preliminary to future measures to be recommended for adoption on the part of the United States, on the sixth day of Octo ber, anno Domini eighteen hundred and fifty-one, was read the first time.

A treaty of peace and friendship made and conclnded at camp in Scott's Valley, Shasta County, California, between Redick McKee, one of the Indian agents specially appointed to make treaties with the various Indian tribes in California, on the part of the United States, and the nndersigned chiefs, captains, and headmen now in council at this camp, representing the Upper Klamath, Shasta, and Scott's River Indians, residing severally in 24, 19, and 7 rancherias or villages, and known as the O-de-i-lah tribe or band, Ishack, chief, from the Upper Klamath Kiver, I-ka-ruok tribe or band, Tso-hor gil-sho, chief, from Shasta Valley, Ko-so-tah tribe or band, Ada-war-how-ik, chief, from Shasta Valley; I da kai-i-waka-ha tribe or band, I-da-kai-i waka ha, chief, from Shasta Valley; Wat sa-he wa tribe or band, Ar-rats a cho i ca, chief, from Scott's Valley; E'eh tribe or band, Anna-nik-a-hok, chief, from Scott's Valley; on the fourth day of November, anno Domini eighteen* hundred and fifty-one, was read the first time. On motion by Mr. Gwin,

Ordered, That the Indian treaties this day received and read, together with the message and documents accompanying the same, be referred to the Committee on Indian Affairs and printed in confidence for the use of the Senate.

The eighteen treaties with Indian tribes in California received on the 7th and reported without amendment the 28th June, were severally read the second time, and considered as in Committee of the Whole; and no amendment being made thereto, they were severally reported to the Senate.

On the question being stated on each treaty, to wit, Will the Senate advise and conseut to the ratification of this treaty?

It was unanimously determined in the negative by the following vote on each treaty :

Those who voted in the negative are,

Messrs. Adams, Atchison, Bayard, Borland, Bradbury, Brodhead, Brooke, Charlton, Clarke, Cooper, Dawson, De Sanssure, Dodge of Wisconsin, Dodge of Iowa, Douglas, Felch, Foot, Geyer, Gwin, Hamlin, Hunter, Jones of Iowa, Mallory, Mangum, Miller, Norris, Pratt, Rusk, Shields, Smith, Soul6, Spruance, Sumner, Toucey, Upham, Wade, Walker.

So it was respectively determined as follows, to wit: Resolved, That the Senate do not advise and consent to the ratification of the treaty of peace and friendship made and entered into at 3910 E J—v 5 27

Camp Belt, on King's River, in the State of California, on the thirteenth day of May, eighteen hundred and fifty-one, between George W. Barbour, one of the commissioners appointed by the President of the United States to make treaties with the various Indian tribes in the State of California, and having full anthority to do so, of the first part, and the chiefs, captains, and head men of the following tribes of Indiana, to wit, the Ta-ches, Cah-wai, Yo kol, Ta-lum-ne, Wic chum-ne, Holcn-ma, Toeneche, Tu-bue-masch, In-tim-peach, Choi-nuck, We-milches, and Mo-ton-toes, of the second part.

Resolved, That the Senate do not advise and consent to the ratification of the treaty of peace and friendship made and entered into at Camp Keyes, on the Cahwai River, in the State of California, on the thirtieth day of May, eighteen hundred and fifty-one, between George W. Barbour, one of the commissioners appointed by the President of the United States to make treaties with the various Indian tribes in the State of California, and havmg full anthority to do so, of the first part, and the chiefs, captains and head men of the following tribes of Indians, to wit, Ko-ya-te, Wo-la-si, Nuchow-we, YVack sache, Palwisha, Po-ken-welle, and Ya-wilchine, of the second part.

Resolved, That the Senate do not advise and consent to the ratification of the treaty of peace and friendship formed and conclnded at Camp Burton, on Paint Creek, in the State of California, on the third day of June, eighteen hundred and fifty-one, between George W. Barbour, one of the commissioners appointed by the President of the Uniied States to make treaties with the various Indian tribes in the State of California, and havmg full anthority to act, of the first part, and the chiefs, captains and head men of the following tribes of Indians, to wit, Chu nute, Wo-wol, Yo-lum ue, Co ye-tie, of the second part.

Resolved, Th it the Senate do not advise and const nt to the ratification of the treaty of peace and friendship made and entered into at Camp Persifer F. Smith, at the Texon Pass, in the State of California, on the tenth day of June, eighteen hundred and fifty-one, between George W. Barbour, one of the commissioners appointed by the President of the United States to make treaties with the various Indian tribes in the State of California, and having full anthority to act, of the first part, and the chiefs, captains and head men of the following tribes of Indians, to wit, Cas-take, Texon, San-lmirio, Uvas, Carises, Buena Vista, Sena-hu-ow, Holo-cla-me, Soho nuts, To cia-a, and Holmi-uh, of the second part.

Resolved, That the Senate do not advise and consent to the ratification of the treaty of peace and friendship made and conclnded at Dent and Vantine's Crossings, on the Stanislans River, California, between the commissioner plenipotentiary of the United States of America, of the one part, and the chiefs, captains and head men of the Iou-ol-umne, We chilla, Su-caah, Co-to-planemis, Chap-pah sints and Sage room-nes, tribes of the other part.

Resolved, That the Senate do not advise and consent to the ratification of the treaty of peace auil friendship made and conclnded at Camp Union, near the Yaba River, between the United States Indian agent, O. M. Wozencraft, of the one part, and the chiefs, captains and head men of the following tribes, viz, Daspia, Ya-uia-do, Yol-la-mer, Waide pa can. On-o-po-ma, Mon-e da, Wan-muck, Nem shaw, Bem-pi, Yacum-na, of the other part.

Resolved, That the Senate do not advise and consent to the ratification of the treaty of peace and friendship made and conclnded near Bedwell's Ranch, on Chico Creek, between the United States Indian agent, O. M. Wozencraft, of the one part, and the chiefs, captains and head men of the following tribes, viz, Mi-chop-da, Es-kuin, Ho lo lu-pi, To-to, Su-mus, Che-no, Bat-si, Yut due, Sim-sa-wa, of the other part.

Resolved, That the Senate do not advise and consent to the ratification of the treaty of peace and friendship made and conclnded at Reading's Ranch, on Cottonwood Creek, California, between the United States Indian agent, O. M. Wozencraft, of the one part, and the chiefs, captains and head men of the following tribes or bands, viz, Noi ma, Moe-ma, Y lac ca, No me, Noi-ma, of the other part

Resolved, That the Senate do not advise and consent to the ratification of the treaty of peace and friendship made and conclnded at Camp Colus, on the Sacramento River, California, between the United States Indian agent, O. M. Wozencraft, of the one part, and the chiefs, captains, and head meu of the following tribes or bands, viz, Colus, Willays, Co ha na, Tat-nah, Cha doc-duc, Cham-net co, Toc-de, of the other part.

Resolved, That the Senate do not advise and consent to the ratification of the treaty of peace and friendship made and conclnded at the fork of Cosumnes River, between the United States Indian agent, O. M. Wozencraft, of the one part, and the chiefs, captains, and head men of the following tribes, viz, Cu ius, Yas si, Loc lum ne, and Wo pumnes, of the other part.

Resolved, That the Senate do not advise and consent to the ratification of the treaty of peace and friendship matle and conclnded at the village of Temecula, California, between the United States Indian agent, O. M. Wozencraft, of the one part, and the captains and head men, of the following nations, viz, The nation of San Louis Rey Indians, the Kah-weas, and the tribe of Co-com cah-ras, of the other part.

Resolved, That the Senate do not advise and consent to the ratification of the treaty of pjace ami friendship made auil conclnded at the village of Santa Ysabel. California, between the United States Indian agent, O. M. Wozencraft, of the one part, and the captams and head men of the nation of Diequino Indians, of the other part.

Resolved, That the Senate do not advise and cousent to the ratifica tion of the treaty made and conclnded on the nineteenth day of March, in the year eighteen hundred and fifty-one, at Camp Fri mont, near the Little Mariposa River, in the State of California, between Redick McKee, George W. Barbour, and Oliver M. Wozencraft, commissioners appointed by thi* President of the. Uuifced States to treat with the various tribes of Indians in the State of California, of the one part, and the chiefs, captains, and head meu of the Si yan te, P6 to yan te, Co conoon, Apaug-as-se, Aplache, and A-wal-a-che, tribes of Indians, of the other part.

Resolved, That the Senate do not advise and consent to the ratification of the treaty of peace and friendship made and conclnded at Camp Barbour, on the San Joaquin River, California, between Redick McKee, George W. Barbour, and O. M. Wozencraft, commissioners thereto specially appointed, on the part of the United States, and the undersigned chiefs, captains, and head men of the tribes or bands of Indians now in council at this camp, known as the How-ech-ees, Chook-chanees, Chow chil lies, Po-ho nee-chees, and Nook-choos, which five tribes or bands acknowledge Nai-yah-qua as their principal chief; also the Pitcat-chees, Cas-sous, Toom-uas, Tallin-chees, and Pos-kesas, which five tribes or bands acknowledge Tom-quit as their principal chief; also the Wa cha-ets, Itachees, Cho-e-nem-nees, Cho-ki-men-as, We-mal ches, and No-to-no-tos, which six tribes or bands acknowledge Pas qual as their principal chief, of the other part.

Resolved, That the Senate do not advise and consent to the ratification of the treaty of peace and friendship made and conclnded at Camp Lu-pi-yu-ma, on the south side of Clear Lake, between Redick McKee, one of the Indian agents specially appointed to make treaties with the various Indian tribes in California, ou the part of the United States, and the undersigned chiefs, captains, and head men of the tribes or bands of Indians now in council at this camp, known as the Ca-la na-po tribe, represented by the Julio and captains; Na-bi-no-po tribe, represented by the chief, Pri-e-to, and his captains; Da-do-ha-bo tribe, represented by the chief, Ku-kee; Mo al-kai tribe, represented by the chief, Moh-shaw, and his captains; Che-com tribe, represented by the chief, Cal-i-a-him and his captains; How-ku-ma tribe, represented by the chief, Chibec, and his captains; Cha-uel-kai tribe, represented by the chief, Cou-chu, and the Mo-dam-a-dec tribe, represented by the chief, Co e-u re, of the other pai t.

Resolved, That the Senate do not advise and consent to the ratification of the treaty of peace and friendship made and conclnded at Camp Fernando Felix, on Russian River, California, between Redick McKee, one of the Indian agents specially appointed to make treaties with the various Indian tribes in California, on the part of the United States, and the undersigned chiefs, captains, and head men of the tribes or bands of Indians now in council at this camp, known as the Sainell tribe, represented by the chief Chas-kan and captains; Ya-ki-as tribe, represented by the chief Ko-yo-to was-sa and captains; Mas-su ta-ka-ya tribe, represented by the chief Cal-pel-la captains; Po-mo tribe, represented by the chief Chi-bem, of the other part.

Resolved, That the Senate do not advise and consent to the ratification of the treaty of peace and friendship made and conclnded at Camp Klamath, at the junction of the Klamath and Trinity Rivers, between Redick McKee, one of the Indian agents specially appointed to make treaties with the various Indian tribes in California, on the part of the United States, and the chiefs, captains, and head men of the tribes or bands of Indians now in council at this camp, representing the Pob-lik, or Lower Klamath, the Pebtsick or Upper Klamath, and the Hoo pah or Trinity River Indians; containing also stipulations preliminary to future measures to be recommended for adoption on the part of the United States.

Resolved, That the Senate do not advise and consent to the ratifica tion of the treaty of peace and friendship made and conclnded at camp in Scott's Valley, Shasta County, California, between Redick McKee, one of the Indian agents specially appointed to make treaties with the various Indian tribes in California, on the part of the United States, and the undersigned chiefs, captams, and head men now in council at this camp, representing the Upper Klamath, Shasta, and Scott's River Indians, residing severally in twenty-four, nineteen, and seven rancuerias or villages, and known as the O de-i-lah tribe or band, I shak, chief, from the Upper Klamath River; I ka ruck tribe or band, Tso-hor get-sho, chief; Ko-se-tah tribe or band, Ada-wai how-ik, chief; I da-kaii-waka-ha tribe or band, I-da-kai-i-waka-ha, chief, from Shasta Valley ; Wat sa-he wa tribe or band, Ar-rats-a cho-i-ca, chief; E-eu tribe or band, Au ua-uik-a hok, chief, from Scott's Valley, on the other part.

Ordered, That the Secretary lay the said resolutions, respectively, before the President of the United States.

The 18 Unratified California Treaties
Indian Commissioners were sent to California to remove the California Native
Americans from the lands they ‘‘physically occupied’’ and create the first reservations.
In reliance on the Treaties, the California Indians abandoned much of their
aboriginal lands and began withdrawing to their new treaty lands. However, unbeknownst
to the California Tribes, the California delegation in Congress was busy
lobbying against ratifying the Treaties.
Instead of just not ratifying the Treaties, Congress went one step further. By secret
joint resolution, Congress agreed not to ratify the California Treaties and to formally
‘‘hide’’ them for 50 years. The net effect of this deception was to open up California
for settlement, as the Native Americans were no longer physically occupying
the land and yet give the Tribes no reciprocal rights to any reservations whatsoever.
Between April 29, 1851 and August 22, 1852, a series of eighteen treaties ‘‘of
friendship and peace’’ were negotiated with a large number of what were said to
be ‘‘tribes’’ of California Indians by three treaty Commissioners (George W. Barbour,
Redick McKee and O. M. Wozencraft) whose appointments by President Millard Fillmore
were authorized by the U.S. Senate on July 8, 1850. Eighteen treaties were
made but the Senate on July 8, 1852 refused to ratify them in executive session and
ordered them filed under an injunction of secrecy. The texts of these 18 unratified
treaties were made public on January 19, 1905 at the order of the U.S. Senate
which met in executive session on that day in the Thirty-second Congress, First Session.

1 ‘‘California tribes that were parties to the 18 treaties negotiated in 1851-52 would have retained
8.5 million acres of their aboriginal homelands had the treaties been honored by the Senate.
Then the Senate refused to ratify the treaties and Congress extinguished the California
tribes’ land claims in the California Land Claims Act of August 3, 1851, the tribes lost claims
to their entire aboriginal homeland totaling more than 70,000,000 acres. Today the tribal land
base in California is just over 400,000 acres (about 0.6% of the aboriginal land base), with an
additional 63 acres of land held in individual land allotments.’’ Final Report, Advisory Council
on California Indian Policy, Pursuant to P.L. 102-416, Executive Summary, p. 25 (September
1977).

The Commutable Distance Rule and Lost Tribal Lands
The Indian Reorganization Act of 1934, the so-called Wheeler-Howard act, was designed
with two objectives. The first was to reverse the effects of the Dawes Act of
1887 and end the era of allotment and forced assimilation by creating strong tribal
governments on established federal reservations.
The second objective was to reverse the loss of tribal lands and, if possible, reestablish
the aboriginal territories of many tribes.
We appreciate Secretary Kempthorne’s concern with the negative effects of off
Reservation fee to trust gaming acquisitions on existing reservation life and we invite
him to see what the Chumash have done with our riverbed. We would hope
that the Secretary would work with us to re-establish the former aboriginal territories
of our tribe. Instead the Secretary is more concerned with how far our tribal
members can drive to work.
We ask the House Resources Committee to work with Tribes and at least permit
us to go through the indignity of having to buy back our aboriginal territories. Instead
we are being labeled as desiring to Reservation Shop. The Chumash desire
to regain the lands of their ancestors even if it means buying them a piece at a
time. This aboriginal territory analysis is completely absent from the so-called commutable
distance test—which is mere pretext to keep tribes on their existing diminished
reservations.

their own lands.
Section 5 of the IRA, 25 U.S.C. § 465, provides for the recovery of the tribal land
base and is integral to the IRA’s overall goals of recovering from the loss of land
and reestablishing tribal economic, governmental and cultural life:
The Secretary of the Interior is hereby authorized, in his discretion, to acquire,
through purchase, relinquishment, gift, exchange, or assignment, any
interest in lands, water rights, or surface rights to lands, within or without
existing reservations, including trust or otherwise restricted allotments,
whether the allottee be living or deceased, for the purpose of providing land
for Indians.
Section 5 is broad legislation designed to implement the fundamental principle
that all tribes in all circumstances need a tribal homeland that is adequate to support
economic activity and self-determination. As noted by one of the IRA’s principal
authors, Congressman Howard of Nebraska, ‘‘the land was theirs under titles guaranteed
by treaties and law; and when the government of the United States set up
a land policy which, in effect, became a forum of legalized misappropriation of the
Indian estate, the government became morally responsible for the damage that has
resulted to the Indians from its faithless guardianship,’’ and said the purpose of the
IRA was ‘‘to build up Indian land holdings until there is sufficient land for all
Indians who will beneficially use it.’’ (78 Cong. Rec. 11727-11728, 1934.)

As Congressman Howard described these land reform measures:
This Congress, by adopting this bill, can make a partial restitution to the
Indians for a whole century of wrongs and of broken faith, and even more
important—for this bill looks not to the past but to the future—can release
the creative energies of the Indians in order that they may learn to take a
normal and natural place in the American community. 78 Cong. Rec. 11731
(1934).
Of the 90 million acres of tribal land lost through the allotment process, only
about 8 percent has been reacquired in trust status since the IRA was passed seventy-
four years ago. Still today, many tribes have no land base and many tribes
have insufficient lands to support housing and self-government. In addition the legacy
of the allotment policy, which has deeply fractionated heirship of trust lands,
means that for most tribes, far more Indian land passes out of trust than into trust
each year. Section 5 clearly imposes a continuing active duty on the Secretary of
Interior, as the trustee for Indian tribes, to take land into trust for the benefit of
tribes until their needs for self-support and self-determination are met.
Congress recognized that the impact of allotment meant that, as a practical matter,
the restoration of a viable tribal land base and the effective rehabilitation of
the tribes would often require land acquisitions off-reservation. This is clear on the
face of Section 5 itself, which provides the Secretary with broad authority to take
land into trust ‘‘within or without existing reservations.’’ This language underscores
that Congress intended lands to be taken into trust to advance the broad policies
of promoting tribal self-determination and self-sufficiency, and that to accomplish
those goals Section 5 established a policy favoring taking land into trust, both on
and off reservation. The legislative history also shows that the acquisition of land
outside reservation boundaries was deemed necessary to meet the goals of providing
adequate land for tribes:
Furthermore, that part of the allotted lands which has been lost is the most
valuable part. Of the residual lands, taking all Indian-owned lands into account,
nearly one half, or nearly 20,000,000 acres, are desert or semidesert
lands.... Through the allotment system, more than 80 percent of the land
value belonging to all of the Indians in 1887 has been taken away from
them; more than 85 percent of the land value of all the allotted Indians has
been taken away. Readjustment of Indian Affairs, Hearings before the House
Committee on Indian Affairs on H.R. 7902, 73rd Cong. 2nd. Session. at 17,
1934.
Most tribal lands will not readily support economic development. Many reservations
are located far away from the tribe’s historical, cultural and sacred areas, and
from traditional hunting, fishing and gathering areas. Recognizing that much of the
land remaining to tribes within reservation boundaries was economically useless,
the history and circumstances of land loss, and the economic, social and cultural
consequences of that land loss, Congress explicitly intended to promote land acquisition
off-reservation to meet the economic development goals of the legislation. There
is no statutory basis for an arbitrary limitation on a ‘‘commutable distance.’’ The
guidance document’s intention to create new barriers to off-reservation land acquisitions
is directly contrary to the IRA’s purpose.
The Department’s regulations on land to trust acquisitions include language indicating
that the greater the distance from the reservation, the greater the scrutiny
the Department would afford to the benefits articulated by the tribe, and the greater
weight that the Department would give to concerns of state and local governments.
We agree that the location of land is an important factor to consider in any
proposal for trust land acquisition. However, it is not an overriding consideration
that cancels out all of the other purposes of the IRA. These purposes—the need to
restore tribal lands, to build economic development and promote tribal government
and culture—are the paramount considerations identified by Congress and must be
balanced with other interests. The National Congress of American Indians strongly
urges both Congress and the Department to reject any implication that the new
guidance limits the ability of the Secretary to acquire land into trust under Section
5 of the IRA.
Concerns Regarding the Process for Developing the Guidance
The Indian Gaming Regulatory Act (IGRA) was enacted in 1988 in response to
the Supreme Court’s 1987 decision in California v. Cabazon Band of Mission
Indians. Section 20 of the IGRA was a central part of the legislative compromise
over Indian gaming, as Congress found it necessary to address concerns that the
Secretary could take land into trust and tribes would build gaming facilities far
away from existing reservations. Section 20 is a general prohibition on gaming on
off-reservation land acquired after 1988, but with several exceptions. In general,

Congress created exceptions for when land is returned or restored to a tribe, and
a general exception often called the ‘‘two-part determination’’ where land may be
taken into trust for gaming if the Secretary of Interior determines that gaming on
the newly acquired lands would be in the best interest of the Indian tribe and its
members, and would not be detrimental to the surrounding community, and the
Governor of the State concurs in the Secretary’s determination.
Since 1988 only three tribes have successfully petitioned the Secretary for a twopart
determination. However, there has sometimes been controversy and confusion
over how the Secretary will make the determinations, and media reports tend to
hype every new proposal with little recognition of how rigorous and difficult the
process is. As a result, in 2005 the National Congress of American Indians passed
a resolution urging the Department of Interior to develop regulations governing the
implementation of the Section 20 two-part determination process. See attached
NCAI Resolution GBW-05-009.
As mentioned above, the Department of Interior embarked on a process to develop
a regulation on Section 20. A draft rule was first circulated and consultation meetings
were held with tribal leaders. Later, the proposed rule was published in the
Federal Register on October 5, 2006, more meetings were held, and comments were
submitted and the comment period closed on February 1, 2007. Since that time we
have been waiting for the Section 20 regulations. The proposed rule never contemplated
any sort of new limitation on distance from the reservation, much less
a ‘‘commutable distance’’ test.
The ‘‘guidance’’ document and the new rule on commutable distance issued on
January 4th were completely unexpected by NCAI or by tribal leaders. There was
no consultation with tribes and no notice and comment period under the Administrative
Procedures Act. Instead, the process lured tribes into commenting on one set
of rules, while the Department was developing another rule behind closed doors. On
the same day the Department denied eleven pending applications, all that the Department
considered ripe for decision, while sending back eleven others for more information.
Each letter of denial is virtually a carbon copy of the others and all eleven
applications are denied for exactly the same reason—that they would violate the
new ‘‘commutable distance’’ rule. Each of the decision letters bases its denial on an
unsupported assertion that it would not be in the best interest of the tribe to own
a casino in a desirable market because of the effect on tribal community life. Given
the high levels of poverty and joblessness on most Indian reservations, this is an
extraordinarily paternalistic rationale that flies in the face of tribal self-determination
and common sense.
The violation of the federal-tribal government-to-government consultation policy
and the abuse of the Administrative Procedures Act are obvious and we will not belabor
them. We do want to make the point that Indian tribes are particularly vulnerable
to these types of abuses. The Secretary of Interior has very broad discretionary
authority over a range of issues that are extremely important to tribes. Tribal
leaders have worked very hard for decades to put in place federal policies that
require consultation, and it appears we still have much more work to do.
This leads us to our final point of asking what Congress and the Administration
can or should do to remedy the issue. NCAI does not have a position for or against
any tribe’s application for land into trust for gaming purposes. Instead, NCAI’s long
held position is that each tribe must have an opportunity for fair consideration of
their application on its own merits based on the laws passed by Congress.
We do not believe that the right answer is to ask the current leadership at the
Department of Interior to simply go back and do the process over again. It would
not satisfy the tribes to have more process when the results are predetermined, and
tribes are strongly against any effort to open up the non-gaming land into trust regulations
in this gaming context. The guidelines provide that any tribe receiving a
denial may resubmit the application with further information. Perhaps it is best
that these issues wait for the next Administration, less than eleven months away,
so that they can be given an opportunity for fair consideration. We have worked
very well with the Department on many issues, but on this issue the agency seems
to be inclined in one direction. In the meantime, we would urge the Department to
withdraw the guidance document.
In the larger picture, NCAI is very concerned about the failures of the Department
to adhere to the government-to-government consultation policy. We would encourage
this Committee to consider legislation that requires the Department to consult
with tribes on any matter that significantly affects tribal rights. A voluntary
policy is not working, and so a mandatory consultation policy may be necessary.
Thank you for your consideration of NCAI’s views on this issue, and once again
we thank you for your commitment to tribal governments and the federal trust and
treaty obligations to Indian tribes.

THREATS AND THREATENING LETTERS.

Threats and menaces of bodily hurt, through fear of which man's business is interrupted, are a species of injury to individuals. A menace alone, without a consequent inconvenience, makes not the injury; but, to complete the wrong, there must be both of them together. The remedy for this is in pecuniary damages, to be recovered by action of trespass ri et armis, this being an inchoate though not an absolute violence. 3 Comm. c. 8. p. 120. And in certain cases by indictment; see 4 Comm. 126, and 6 East, 126, 140, Rex v. Southerton, from which it may be inferred that an indictment will lie at common law for extorting money by actual duress, or by such threats as common firmness is not capable of resisting. The threats must in every case be specified in the indictment.

A request intimating a threat to publish a libel, charging a party with murder if the request was not complied with, ruled to be a threat. Robinson's case, East, P. C. c. 23. § 2.

The sending of letters threatening death or the burning of the party's house, &c. was formerly high treason by the 8 Hen. 5. c. 6; 4 Comm. 144. And under the 9 Geo. 1. c. 22, and 27 Geo. 2. c. 15, the offence was for a long period made punishable as a capital felony. But by the 4 Geo. 4. c. 54. § 3. so much of the above acts as related to this offence was repealed, and it was enacted, that if any person shall knowingly and wilfully send or deliver any letter or writing with or without any name or signature subscribed, or with a fictitious name, &c. threatening to kill or murder any of his majesty's subjects, or to burn or destroy his or their houses, outhouses, barns, stacks of corn or grain, hay or straw, or shall procure or abet the commission of the said offence, or shall forcibly rescue any person being in lawful custody for such offence, he is guilty of felony, punishable with transportation for life or years, or with imprisonment, with or without hard labour, not exceeding seven years.

By the 7 & 8 Geo. 4. c. 29. § 8. if any person shall knowingly send or deliver any letter or writing, demanding of any person, with menaces, and without any reasonable or probable cause, any money, chattel, or valuable security; or if any person shall accuse, or threaten to accuse, or shall knowingly send or deliver any letter or writing accusing or threatening to accuse any person of any crime punishable by law with death, transportation, or pillory, or of any assault with intent to commit a rape, or of any attempt or endeavour to commit any rape, or of any infamous crime as thereinafter defined, with a view or intent to extort or gain from such person any chattel, money, or valuable security, the offender is declared guilty of felony punishable with transportation for life, or not less than seven years, or with imprisonment not exceeding four years, with or without whipping, in addition to the imprisonment.

For the two other clauses of the above act, see Infamous Crime.

The contents of the letter must be set out in the indictment. Lloyd's case, East, P. C. c. 23. § 5.

A letter charging one with taking away the life of the friend of the writer, who was come to revenge him, held evidence of a threat to murder. Gridwood's case, East, P. C. c. 23. § 2, 4.

THRENGES. Quia vero non erant adhuc tempore Regis Willielmi milites in Anglia, sed Threnges, prcecipit rex ut de eis mtfites Jierunt ad defendendum ierram, fecit aulem Lanfrancus Threngos suos mililes, tyc. Somner's Gavelfc. 123, 210. They were vassals, but not of the lowest degree, of those who held lands of the chief lord. The name was imposed by the Conqueror ; for when one Edward Sharnbourn of Norfolk, and others, were ejected out of their lands, they complained to the Conqueror, insisting that they were always on his side, and never opposed him, which upon inquiry he found to be true, and therefore he commanded that they should be restored to their lands, and for ever after be called Drenches. Spelm. See Drenches, Sharnburn.

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 DISCHARGE 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! PROCLAMATION TERMINATING THE NATIONAL EMERGENCY

"the revised PHG of 300 g/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." Rick Sugarek, EPA project manager for Iron Mountain Mine Superfund cleanup, 2008 5 year review. (How much is two orders of magnitude damages?)

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
)

Christ Statue and Spiritual Sanctuary

CERCLA allows PRPs to seek contribution from one another in order to
apportion response costs equitably. But CERCLA bars contribution
claims against PRPs that have obtained administratively
or judicially approved settlements with the government.

CERCLA thus provides an incentive for PRPs to settle by
leaving non-settling PRPs liable for all of the response costs
not paid by the settling PRPs.
We consider a question that has split the federal courts:
May a non-settling PRP intervene in litigation to oppose a
consent decree incorporating a settlement that, if approved,
would bar contribution from the settling PRP? We join the
Eighth and Tenth Circuits in holding that the answer is “yes.”

New Report Casts Doubt On Government's AIG Investment, TARP 

 

 

TARP Oversight Panel: AIG Still a 'Significant Risk' to Taxpayers

September 20, 2010

American International Group Inc. still owes the federal government about $128.2 billion, and the Troubled Asset Relief Program's Congressional Oversight Panel has issued a report suggesting it's still hard to say whether that taxpayer investment will pay for itself.

"Whether Treasury will be able to exit its investments in AIG without substantial losses turns on AIG's ability to produce strong operating results and demonstrate that it is capable of functioning as a stand-alone investment-grade company without government support," the report said.

An attempt to reach AIG (NYSE: AIG) for comment on the TARP report wasn't immediately successful.

"AIG still relies largely on government funding for capital and liquidity, although there are recent indications that AIG is planning to issue bonds," the report said. "Treasury's ability to recoup its investment depends on the value of AIG's common stock at the time Treasury sells its interests. Therefore, the value of Treasury's substantial investment in AIG and the size of any gain or loss are dependent on many external variables, and the protracted investment in AIG continues to create significant risks to taxpayers."

The company's outstanding TARP help equals $49.1 billion, while its debt to the Federal Reserve Bank of New York is $79.1 billion. AIG has to repay FRBNY before it can turn to settling its debt with the Department of the Treasury.

In general, the report reflected increasing optimism in the federal agencies that AIG may recover, but it points out the company has offered no concrete time line for debt repayment.

"At this time, AIG cannot afford to divert the cash it is generating through its insurance operations towards repaying FRBNY, because it is still quite weak financially," the report said. "Both the timing of the government's exit from its involvement with AIG and the ultimate return on its investment are difficult to predict with confidence."

The panel's report also included views from academic experts. It quoted Alan Blinder, a professor of economics and public affairs at Princeton University, as saying that "regarding stabilizing institutions like AIG, one has to count TARP as a huge success." He said it threw a "security blanket around every large entity. This is not something you'd want to do under normal circumstances but was appropriate at the time. And the net cost to the taxpayers for this part of the program will, in the end, be very small. In that sense, TARP looks like a bargain."

Because Treasury will sell off the remaining warrant positions it holds in Hartford Financial Services Group Inc. and Lincoln National Corp., ending the financial connection between the two major insurers and the federal government, that leaves AIG as the only insurance company financially connected to TARP (BestWire, Sept. 9, 2010).

TARP is nearing its statutory expiration on Oct. 3.

AIG stock was trading at $36.67 on the afternoon of Sept. 20, up 2.89% from the previous close. Most AIG insurers have current Best's Financial Strength Ratings of A (Excellent).

  • September 30, 2010, 12:40 PM ET

Hank Greenberg on the AIG Plan: ‘Disgraceful'

 

National ag groups ask EPA to reconsider water strategy nationally and in Florida


New and Revised Clean Water Act Methods Proposed

September 23rd, 2010

 

In August 2010 the EPA issued a notice proposing new and revised analytical methods to be used under the Clean Water Act (CWA) .

The proposed rule, entitled “Guidelines Establishing Test Procedures for the Analysis of Pollutants Under the Clean Water Act; Analysis and Sampling Procedures”, will effect numerous EPA Methods , ASTM Methods, Standard Methods, and alternative test methods.

EPA methods:

  • Method 1664B - N-Hexane Extractable Material (HEM; Oil and Grease) and Silica Gel Treated N-Hexane Extractable Material (SGTHEM; Non-polar Material) by Extraction
  • Method 200.5 - Determination of Trace Elements in Drinking Water by Axially Viewed Inductively Coupled Plasma – Atomic Emission Spectrometry
  • Method 525.2 - Test Methods for Pesticide Active Ingredients
  • Method1614A - Brominated Diphenyl Ethers in Water, Soil, Sediment, and Tissue by HRGC/HRMS
  • EPA Method 1668C - Chlorinated Biphenyl Congeners in Water, Soil, Sediment, Biosolids, and Tissue by HRGC/HRMS
  • Method 1622 - “Cryptosporidium in Water by Filtration/IMS/FA” and Method 1623, “Cryptosporidium and Giardia in Water by Filtration/IMS/FA
  • Methods 1103.1, 1106.1, 1600, 1603, and 1680
  • Method 1627 - Kinetic Test Method for the Prediction of Mine Drainage Quality
  • Method 624 - Purgeables

ASTM methods:

  • D2036-09 - Standard Test Methods for Cyanides in Water
  • D6888-09 - Standard Test Method for Available Cyanide with Ligand Displacement and Flow Injection Analysis Utilizing Gas Diffusion Separation and Amperometric Detection
  • D7284-08 - Standard Test Method for Total Cyanide in Water by Micro Distillation followed by Flow Injection Analysis with Gas Diffusion Separation and Amperometric Detection
  • D75 11-09e2 - Standard Test Method for Total Cyanide by Segmented Flow Injection Analysis, In-Line Ultraviolet Digestion and Amperometric Detection
  • D7237-10 - Standard Test Method for Free Cyanide with Flow Injection Analysis Utilizing Gas Diffusion Separation and Amperometric Detection; This method determines free cyanide with the same instrumentation and technology as currently approved methods ASTM D6888-09 and OIA 1677-09
  • D888-09 - Standard Test Method for Dissolved Oxygen in Water; This method may be used for biological oxygen demand and carbonaceous oxygen demand
  • D7573-09 - Standard Test Method for Total Carbon and Organic Carbon in Water by High Temperature Catalytic Combustion and Infrared Detection
  • D7065-06 - Standard Test Method for Determination of Nonylphenol, Bisphenol A, p-tert-Octylphenol, Nonylphenol Monoethoxylate, and Nonylphenol Diethoxylate in Environmental Waters by Gas Chromatography Mass Spectrometry
  • D7574-09 - Standard Test Method for Determination of BPA in Environmental Waters by Liquid Chromatography/Tandem Mass Spectrometry
  • D7485-09 - Standard Test Method for Determination of NP, OP, NP1EO, and NP2EO in Environmental Waters by Liquid Chromatography/Tandem Mass Spectrometry

In addition, the EPA has proposed adding eight alternate test procedures:

  • Hach Company's Method 10360 - Luminescence Measurement of Dissolved Oxygen in Water
  • In-Situ Incorporated's Method 1002-8-2009 - Dissolved Oxygen Measurement by Optical Probe
  • In-Situ Incorporated's Method 1003-8-2009 - Biochemical Oxygen Demand (BOD) Measurement by Optical Probe
  • In-Situ Incorporated's Method 1004-8-2009 - Carbonaceous Biochemical Oxygen Demand (CBOD) Measurement by Optical Probe
  • Mitchell Method M5271 and M5331 - uses laser based nephelometry to measure turbidity in drinking water and wastewater
  • Thermo Scientific's Orion Method AQ4500 - uses LED based nephelometry to measure turbidity
  • Systea Scientific, LLC's Systea Easy (1-Reagent) Nitrate Method - uses automated discrete analysis and spectrophotometry to determine concentrations of nitrate and nitrite combined or singly

The Standard Methods to be impacted, include those for oil and grease, ammonia, boron, inorganic ions, arsenic, selenium, aluminum, beryllium, chemical oxygen demand, phosphorous, oxygen, potassium, silica, sulfate and sulfide.

In addition, EPA is proposing minimum quality control requirements to improve consistency across method versions; corrections to previously approved methods; and various changes to sample collection, preservation, and holding time requirements.

For complete information on these methods read the proposed rule by visiting
www.epa.gov/waterscience/methods/update/methodsprepub.pdf

 

September 20th, 2010 02:15am

TARS policy addresses regulatory inconsistency

By Dan Verel, Business Journal Staff Reporter

A Return to Jekyll Island: The Origins, History, and Future of the Federal Reserve - November 5-6, 2010

Federal Reserve Bank of Atlanta and Rutgers University
November 5–6, 2010, Jekyll Island Club Hotel, Jekyll Island, Georgia

This special conference marks the centenary of the 1910 Jekyll Island meeting that resulted in draft legislation for the creation of a U.S. central bank. Parts of this draft (the Aldrich plan) were incorporated into the 1913 Federal Reserve Act. To commemorate the 100th anniversary of the drafting of the Aldrich plan, the conference will take place at the Jekyll Island Club Hotel on Jekyll Island, Georgia—the same building where the 1910 meeting occurred.

The conference's discussions focus on three themes: the origins of the Fed and lessons from the pre-1913 era, how closely the Fed's actual performance has adhered to the original vision expressed by the framers of the Aldrich plan, and what the Fed's almost 100-year track record teaches us about its role going forward.

Conference Coordinator
Lisa Lee-Fogarty
Public Affairs Department
Federal Reserve Bank of Atlanta
1000 Peachtree Street, NE
Atlanta, GA 30309
lisa.fogarty@atl.frb.org
404-498-8267
404-498-8050 (fax)

Improving Drinking Water Quality by Ensuring Water Quantity

Posted on September 22, 2010 | Filed Under: Clean Water , Protecting Rivers , Global Warming

Jenny Hoffner
Director, Water Supply

09-21-10 NACD Weighs in on EPA's Clean Water Strategy

Posted by Brian Allmer on September 21, 2010

 

Available Funding in Region 9

EPA supports two major types of grants:

Ongoing grants , which are commonly awarded to states, tribes, and U.S. territories to support and establish environmental programs;

Project-specific grants , which are typically competitive, and available to state and local governments, tribes, non-profit organizations, and educational institutions.

Funding Sources for Communities
Provides summaries of current Region 9 funding opportunities, contacts, and links to related documents. The Catalog of Federal Domestic Assistance (CFDA) provides a complete listing of all the different types of EPA grants. For a complete listing of EPA grant opportunities currently open, visit Grants.gov .

Funding Solicitations (Open RFPs)
Includes details about many of EPA Region 9's current funding opportunities, and how to submit a proposal.

Agriculture Grants
Grant funding for projects that explore ways to improve agricultural practices and reduce their environmental effects

Managing Your Special Appropriation Act Project
Guidance for special situations defined in EPA's annual Appropriations Act.

Region 9 Topics and Program

Information for Applicants

Before You Apply
You should be familiar with federal grant requirements before you apply. These requirements, established in law , Executive Order, federal regulation, and the OMB Circulars, often vary depending on the type of organization applying. For example, they establish which costs may be charged to a federal grant, how open competition is required for equipment, supplies, and contracts procured under a grant, and what efforts that must be taken to contract with women- and minority-owned firms.

Applying for a Grant
If you have been asked to submit a formal application for a grant by an EPA project officer or your proposal has been formally selected for funding by EPA Region 9, please follow these guidelines. In many cases, EPA Region 9 will send you additional guidance information with a Region 9 tracking number to help you apply for your specific program/project. If you are submitting a grant proposal , however, there is a different procedure (see Requests for Proposals ).

Managing Your Grant
Information for EPA grant recipients, including regulations, common forms, reports, and required certifications.

Water State Revolving Funds

General EPA Guidance on Section 1512 Recipient Reporting:

Federal Reporting:

Davis Bacon Act Regional Resources

EPA Civil Rights Obligations under The Recovery Act

EPA Notice to Grantees Re: ACORN Funding Prohibitions, August 17, 2010

Mandatory Grant's Management Training for Non-Profit Applicants and Recipients - EPA's new recipient course designed to help non-profit recipients and applicants understand assistance agreement regulations, the application process, management of their assistance agreements and the close out process. Completion of this class is mandatory for all non-profit award recipients upon receipt of monetary actions effective October 1, 2007. Please check your award document for the term and condition. Your certification will be good for 3 years after which you will have to update your training. ( This class is not required for Colleges or Universities. The cost principles taught are specially for non-profit enities. )

Additional Resources

Find Current Funding Opportunities - Contains information on CFDA Catalogue, Grants Competition, Small Business Gateway and Open Announcements, and Grants.gov

OMB Relaunches Web Site to Track Federal Spending: http://www.USAspending.Gov , a single searchable Website that provides information on each Federal grant and contract awarded.

How to Apply - Find information on the grant tutorial, headquarters grant application requirements and forms.

EPA Grantee Forms - Find all EPA and OMB grant related forms.

  • Effective October 1, 2009, EPA will require the use of the Federal Financial Report (SF-425). This form replaces the current Financial Status Report (SF-269 and SF-269A) and Federal Cash Transactions Report (SF-272). The new form may be found on the internet at: http://www.epa.gov/ocfo/finservices/forms.htm

Grant and Fellowship Information - Locate information about grant and fellowship programs offered by EPA offices.

Open Announcements - Locate up-to-date information on open announcements

Competitive Information and Competitive Awards

Grant Awards Database - Contains award information on EPA open grants and includes a view of grant awards by quarter. The database can be searched by any word or combination of words appearing within the award record.

Policy and Regulations - New regulations, policies, proposed rules, important notices and the regulatory agenda of future regulations.

Suspension and Debarment Program - Suspension and debarment actions protect the government from doing business with individuals/companies/recipients who pose a business risk to the government.

Find the Grant Regional Office Near You - Includes links to all ten EPA regional grant offices.

EPA's Plan for Grants Management - This Plan charts the course the Agency will follow in the coming years to deliver an effective system for grants administration.

  • EPA Long-Term Grants Management Training Plan - This plan provides the framework for insuring that EPA employees have the skills to manage grants in accordance with the highest fiduciary standards and for providing recipients with the knowledge they need to expend grant dollars in a fiscally responsible manner. (32 pp, 960 K, About PDF )

State Grants | Find Current Funding Opportunities | How to Apply | EPA Grantee Forms | Grant and Fellowship Information | Open Announcements | Closed Announcements/Pending Awards | Desk Top Resource | Policy, Regulations and Guidance | Davis Bacon | Suspension and Debarment Program | Find the Grant Regional Office Near You | EPA's Plan for Grants Management |

 

Agenda 5 27 May 2010 Litigation filed against the Regional and/or ...

Iron Mountain Mine Cleanup - State of Calif., CVRWQCB, et al. v. Iron Mountain Mines , Inc., et al., (EDCal No. CIV-S-91-1167-DFL-PAN) and U.S. v. ...
www.co.merced.ca.us/BoardAgenda/2010/MG154943/.../5.TXT - Cached

[PDF]

Addressing Threats from Abandoned Mines in California Communities

File Format: PDF/Adobe Acrobat - Quick View
Effects to biota are often acute (fish kills). ? Effects to plants are long lasting (barren hill sides). Iron Mountain Mine , Shasta County ...
www.dtsc.ca.gov/SiteCleanup/upload/AML_Threat-presentation.pdf

Natural Resource Restoration Plans, NOAA Office of the General Counsel

Apr 21, 2010 ... Iron Mountain Mine Iron Mountain Mine Trustee Council. 2000. Final Restoration Plan for Natural Resource Injuries From Iron Mountain Mine . ...
www.gc.noaa.gov/natural-office2.html - Cached - Similar

Iron Mountain Mine Iron Mountain Mine Trustee Council. 2000. Final Restoration Plan for Natural Resource Injuries From Iron Mountain Mine. Report of the Iron Mountain Mine Natural Resource Trustee Council, U.S. Fish and Wildlife Service, U.S. Bureau of Land Management, U.S. Bureau of Reclamation (USBR), California Department of Fish and Game, and National Oceanic and Atmospheric Administration. Copies may be requested from: Eva Grey, USBR. [Southwest DARRP web site.]

10/19/2000: U.S., STATE ANNOUNCE LONG-TERM SETTLEMENT FOR IRON ...

The EPA listed Iron Mountain Mine as a federal Superfund site in 1983, ... Additional information on Iron Mountain Mine is available on the Web at ...
yosemite1.epa.gov/.../ 6d8c6077be9d48d68525697d005f3ad3!OpenDocument&Start=1&

RODS Abstract Information - Superfund Information Systems - EPA ...

The Iron Mountain Mine site includes mining property on the topographic ... Iron Mountain Mines , Inc. (IMMI) acquired a majority of the parcels to the mine ...
cfpub.epa.gov/superrods/index.cfm?fuseaction=data.rodinfo... - Cached

 

1. Although the majority confusingly states that "we join the other circuits that measure delay from when the movant was on notice that its interests may not be protected by a party already in the case," Maj. at 18 (emphasis added), the majority's application of this standard correctly measures delay from when the Nation could no longer reasonably believe its interests were adequately represented. See Maj. at 21 ("The Nation could never have reasonably thought that the state was representing the Nation's interests in recovering its damages.").

2. I express no view on whether the district court properly resolved Tyson's Rule 19 motion. Rather, I only point out that until that motion was resolved, the Nation could have reasonably believed that the district court would adopt the position of Coeur D'Alene II rather than the position of Coeur D'Alene I regarding the CERCLA trustee issue.

 

 

 

Shasta County , by M. E. Dittmar, Redding , California .

"The best foundation for communal prosperity is diversity of resource. A diversity of soil and climate assure a variety of agricultural, horticultural and pomological products. A diversity of industrial raw materials and forest resources invites industrial expansion. When a community embraces these, with a superabundance of water for power and irrigation, it offers a combination of advantages, rarely equalled (sic) and never excelled. These are the advantages that Shasta County at the extreme head of the Sacramento Valley possesses.

"In area Shasta is the largest geographical subdivision of the Sacramento River drainage, embracing 4,050 square miles within its borders - the States of Rhode Island and Delaware could be included in this area and leave a surplus of over 750 square miles.

"The increasing importance of irrigation as an aid to intensive agriculture, speeding up the soil, is generally recognized. As compared with dry farming and cereal crops exclusively, intensive agriculture, fruitgrowing (sic) and diversified husbandry, has increased the annual net profit from the soil many fold. In the last analysis, water on the land is as a rule more valuable than the land itself.

"According to official daily gauging records, the average annual run-off, originating within the limits of Shasta County , is 8,100,000 acre feet - a valuable irrigation and power asset.

"Over one-sixth of the potential water-power energy of California exists within the border of Shasta County . The development of cheap and convenient power means industrial development. Water, for power and for irrigation, is the 'open sesame' of Shasta's future.

"To utilize the power, Shasta has industrial raw materials to attract giants of capital and industry. The industrial metals, copper, iron and zinc, already highly developed and of the first magnitude in quantity; cement materials and great beds of fine quality clays; the elements essential for the manufacture of commercial fertilizers, on a scale to supply the greater part of the North American continent with calcium nitrates - destined to entirely supersede the sodium nitrates of Chile; hardwood timber for the manufacture of furniture, and vast forests of commercial pine and fir for the lumberman - containing over 5,250,000,000 feet (board measure) standing commercial timber.

"These resources represent the foundation for an industrial community that cannot be equalled (sic) for diversity, quantity and general advantages, within a like area anywhere in the United States .

In metal mining, Shasta has been in a class by itself, leading all other countries in California for the past eighteen years. The official statistics from 1897 - the year when her great sulphide ore bodies were first exploited - to 1914 (last year estimated) credit the county with a total output of $99,144,777, or an average of over $5,508,000 per year.

"More than two thousand men find employment at good wages, all the year round, in this great industry, and approximately $3,000,000 per annum are paid out within the borders of the county for wages and supplies.

"The great industrial metal, copper, is next to iron in importance, in the work of the world. In the past eighteen years Shasta has produced 488,211,278 pounds of this metal.

"To Shasta County is due the credit of the first important development on the Pacific Coast , in the production of iron ore, and the manufacture of pigiron by means of the electric furnace.

"The electric furnaces at Heroult have also been utilized in the manufacture of ferro-manganese, for the steel plants of the eastern portion of the United States . Here are grouped the iron ores, the elements essential in the manufacture of special steel, and a million horsepower of potential energy - the basis for the upbuilding of another Pittsburgh.

"In emphasizing the industrial present and future of Shasta County, we wish to make its importance apparent from the 'home market' viewpoint, with thousands of consumers finding remunerative and continuous occupation the producer has an advantage not frequently enjoyed, and this is particularly true where intensive cultivation is practiced, on smaller land holdings.

Deciduous fruit is grown on an extensive scale in the lower valleys and foothills. The culture of the prune is predominant, with peaches and pears a close second.

"The olive, one of the most stable orchard products, has demonstrated its superiority in Shasta County . Hundreds of contiguous acres are now planted to olive groves, and one of the largest groves in the State, containing 120 acres, planted more than twenty years ago, is also one of the most prolific in the State.

"The vine, in these higher but still semi-tropic latitudes, during the long sunny summer days, stores larger percentages of sugar in the grape - an advantage that will appeal to the viticulturist.

"No climatic reason exists why oranges should not be grown successfully, as the isothermal zone of the Central California valleys extends to the vicinity of Redding . Trees a score of years old or more, planted chiefly for ornamental purposes, attest the feasibility of citrus culture.

"Cereals of all kinds are grown in the main valley - especially in the Church Creek Bottoms - and in the mountain valleys of northeastern Shasta. A greater area is being devoted from year to year, to alfalfa, with the increase of irrigation - although three crops are usually cut without irrigation - and dairying and stock-raising are on the increase.

"The stock-grower, except where stock is wintered in the higher altitudes, does little winter feeding, utilizing instead a combination of summer and winter range, made possibly by the varying altitudes and the vast acreage of public domain in the forest reserves.

" Shasta County contains a number of thriving cities and towns. Redding is the county seat, a beautifully located city of about four thousand people (circa 1915), at the extreme head of the Sacramento Valley , where mountain and vale meet. It is the natural distributing center for a large area of Northern California, the center of industrial development, with large and prosperous business houses, excellent hotels, etc., up-to-date schools including the Shasta County high school, churches of various denominations, and all the more prominent fraternal organizations.

"The thriving towns of Anderson and Cottonwood are the chief fruit centers of Shasta, and thousands of tons of fruit, as well as agricultural products and livestock, are shipped annually from these points.

"Kennett is the center of smelting activity, and is an important industrial city of over two thousand people.

"Other towns of importance are Fall River and McArthur, in northeastern Shasta; Castella, La Moine and Delta, in the Sacramento Canyon ; De Lamar, French Gulch, the old pioneer county seat of Shasta, Coram and Keswick, in the mining districts; Millville and Ono represent smaller agricultural and stock-raising communities.

"The County is traversed by many good roads, and the streams are bridged with creditable permanent structures. The California State Highway is under construction, through the heart of Shasta, and State Highway laterals, into Trinity County to the west, connecting with the main trunk road at Redding , have been provided for.

"Shasta has excellent main line railroad facilities, with expansion in feeders and other main line construction assured in the near future.

"The beautiful in nature is blended with the utilitarian, in Shasta County . In the Shasta Canyon , enchanting vistas of Mount Shasta and the stately domes and spires of the Castle Crags offer an ever-changing panorama of indescribable grandeur, through verdant mountain recesses cut by the crystal river.

"The beautiful McCloud in all its pristine glory, where the gamey trout abounds, and the timid doe or stately buck emerges from their leafy lanes along the river's brink or mountain glades. The rugged gorges of the Pit, where masjesty (sic) and power impress the visitor. Beautiful Burney, the misty mistic (sic) falls that tumble over lava cliffs a hundred feet and more, to greet the onrush of the river - all these inspire.

"But nature, not content with her lavish bestowal of the majestic and beautiful, assays a new wonder - the awe-inspiring eruption of Mount Lassen . In a region of fantastic natural features, the mountain long quiescent now holds the center of the stage. Unique, as the only active crater in continental United States - remote from centers of population, that the release of its pent-up energies may fall harmless - it presents a spectacular climax in its periodical eruptions, forcing a mighty column of steam and volcanic ejecta, two miles and more in the air. This is Shasta's exclusive wonder, though visible for a hundred miles, and Congress recognizes its attractive powers by proposing to establish here the Lassen Volcanic National Park . The Lassen Trail Highway to Manzanita Lake , five miles from the crater summit, presents a route of easy access for the automobilist. The nature lover will find the lure of Shasta's natural wonders an inspirational revelation.

"The development of the manifold resources of Shasta County assures her a great future -

"The door of opportunity stands ajar.
Industrial opportunity for capital.
Land at reasonable prices for the home-seeker.
Delightful climate, and magnificent scenery.
The foundation of prosperity is secure.

"(Note. - For more detailed information, send for booklet on Shasta County , California , free, address Shasta County Promotion and Development Association, Redding , California . Or during the Fair at Shasta headquarters, California State Palace , P.P.I.E.)"

Shasta County Mineral Industry (circa 1919) – Excerpt from California Mineral Production for 1919, Bulletin No. 88 , by Walter W. Bradley, California State Mining Bureau, 1920, pp. 165.

Area: 3,858.
Population: 13,311 (1920 census)
Location: North-central portion of state.

" Shasta County stood eleventh in California among the mineral-producing counties for 1919, with an output valued at $2,912,718, as compared with the 1918 production worth $8,098,671. The marked decrease both in 1918 and 1919 was due to the falling off in the output of copper, the large plants of the Mammoth and Mountain copper companies being shut down most of the year. Not taking petroleum into account, Shasta for a number of years lead (sic) all of the counties by a wide margin; but in 1919 was passed by San Bernardino , Yuba, Amador, and Nevada among the 'metal' counties.

"Shasta's mineral resources include: Asbestos, barytes, brick, chromite, coal, copper, gold, iron, lead, lime, limestone, mineral water, molybdenum, pyrite, silver, soapstone, miscellaneous stone, and zinc.

"Lassen Peak is located in southeastern Shasta County

"Commercial production for 1919 was as follows:

(Headings for the information below are: Substance, Amount, and Value.)

Copper, 8,673,342 lbs., $1,613,242
Gold, ---, $425,000 (estimated)
Lime and limestone, ---, $29,100
Platinum, 121 oz., $21,075
Pyrite, 138,046 tons, $497,398
Silver,---, $155,000 (estimated)
Stone, miscellaneous, ---, $31,750
Other minerals,* ---, $40,153
(Total value) $2,912,718

(* Includes barytes, brick, iron ore, lead, mineral water, and zinc.)

CAL. HSC. CODE § 25375.5 : California Code - Section 25375.5

(a) Except as specified in subdivision (b), the procedures specified in Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, and in Section 11513 of, the Government Code apply to the proceedings conducted by the board pursuant to this article.

(b) Notwithstanding subdivision (a), Sections 801, 802, 803, 804, and 805 of the Evidence Code apply to the proceedings conducted by the board pursuant to this article.

(c) The board may consider evidence presented by any person against whom a demand was made pursuant to subdivision (c) of Section 25372. The evidence presented by that person shall become a part of the record upon which the board's decision shall be based.

Nothing in this article shall require, or be deemed to require, pursuit of any claim against the board as a condition precedent to any other remedy.

(a) Compensation of any loss pursuant to this article shall preclude indemnification or reimbursement from any other source for the identical loss, and indemnification or reimbursement from any other source shall preclude compensation pursuant to this article.

(b) If a claimant recovers any compensation from a party in a civil or administrative action for a loss for which the claimant has received compensation pursuant to this article, the claimant shall reimburse the state account in an amount equal to the compensation which the claimant has received from the state account pursuant to this article. The Attorney General may bring an action against the claimant to recover the amount which the claimant is required to reimburse the state account, and until the account is reimbursed, the state shall have a lien of first priority on the judgment or award recovered by the claimant. If the state account is reimbursed pursuant to this subdivision, the state shall not acquire, by subrogation, the claimant's rights pursuant to Section 25380.

(c) The Legislature hereby finds and declares that it is the purpose of this section to prevent double recovery for a loss compensable pursuant to this article.

Compensation of any loss pursuant to this article shall be subject to the state's acquiring, by subrogation, all rights of the claimant to recover the loss from the party determined to be liable therefor. Upon the request of the board, the Attorney General shall commence an action in the name of the people of the State of California to recover any amount paid in compensation for any loss pursuant to this article against any party who is liable to the claimant for any loss compensable pursuant to this article in accordance with the procedures set forth in Sections 25360 to 25364, inclusive. Moneys recovered pursuant to this section shall be deposited in the state account.

(a) The board shall, in consultation with the department, adopt, and revise when appropriate, all rules and regulations necessary to implement this article, including methods that provide for establishing that a claimant has exercised reasonable diligence in satisfying the conditions specified in Sections 25372, 25373, 25375, and 25375.5, and regulations that specify the proof necessary to establish a loss compensable pursuant to this article.

(b) Claims approved by the board pursuant to this article shall be paid from the state account.

(c) The Legislature may appropriate up to two million dollars ($2,000,000) annually from the state account to be used by the board for the payment of awards pursuant to this article.

(d) Claims against or presented to the board shall not be paid in excess of the amount of money appropriated for this purpose from the state account. These claims shall be paid only when additional money is collected, appropriated, or otherwise added to that account.

 

Treasury not transparent about AIG: TARP report

Mark A. Hofmann

WASHINGTON—The U.S. Treasury Department failed to meet “basic transparency standards” when it adopted a new methodology to determine how much federal assistance to American International Group Inc. would cost taxpayers, according to a report released Monday.

The its new quarterly report to Congress, the Office of the Special Inspector General for the Troubled Asset Relief Program noted that the Treasury Department and the Federal Reserve Bank of New York said in September that they and AIG had reached an agreement in principle to recapitalize AIG in an effort to speed up AIG's repayment of government assistance. In doing so, Treasury changed how it calculated the projected loss.

The change lowered the estimated loss to $5 billion from $45 billion projected in late March, according to the special inspector general.

“While AIG's fortunes may have indeed improved during the course of those six months, there is a serious question over how much of this decrease comes in a change in Treasury's methodology for calculating the loss as opposed to AIG's improved prospects,” according to the report.

Rather than sticking with its published methodology to value its investments, Treasury's $5 billion loss estimate was “based solely on the recent market closing price of AIG's common stock, on the assumption that the recapitalization plan will go exactly as planned,” in which Treasury would receive about 1.1 billion shares of AIG common stock in return for preferred shares it currently holds, according to the report.

While the special inspector general “offers no opinion” on the appropriateness or accuracy of the new valuation, the report said the Treasury Department's actions failed to meet basic transparency standards because it did not disclose the methodology change and that it would have been required by auditors to use the previous standards in official audited financial statements.

Treasury's action has left it “vulnerable to charges that it has manipulated its methodology for calculating losses to present two different numbers depending on its audience,” according to the report.

The report said the “failures in transparency…distract from an otherwise positive story—calculations of loss far lower than what was previously expected and a potential exit from AIG that few thought would ever be possible.” The report said Treasury “should resist” taking similar actions in the future.

The full report is available at http://www.sigtarp.gov/reports/congress/2010/October2010_Quarterly_Report_to_Congress.pdf .

 

Clean Water Act Section 303(d): Notice for the Public Review of the Draft Total Maximum Daily Load (TMDL) for the Chesapeake Bay

 

Vitamin Firms Settle U.S. Charges, Agree to Pay $725 Million in Fines

 

A clean water fallacy

by Don Parmeter
Published: Wednesday, November 3, 2010 11:50 AM CDT There are several disturbing aspects about H.R. 5088, America's Commitment to Clean Water Act, written by Minnesota Congressman James Oberstar and introduced in April.

There's the bill itself, arguably the biggest federal power grab in American history, given the proposed change in language to the 1972 federal Clean Water Act. Mr. Oberstar's bill would replace the term “navigable” with “waters of the U.S.,” which would include all waters currently used, used in the past or susceptible to use in future commerce; all interstate and international waters; and all other waters and their tributaries, including intrastate lakes, rivers, streams, mudflats, sandflats, wetlands, ponds, meadows and sloughs.

The legislation is also intended to control land use, a responsibility traditionally held by state and local governments. In water-rich states like Minnesota, it's hard to imagine any activity that doesn't affect water. In Oberstar's own district, this bill would be a job killer. It is opposed by trade associations representing mining, forestry, agriculture, energy, recreation, manufacturing and just about every other sector of the American economy. The only job opportunities would be for environmental attorneys, as it would open the flood gates for endless litigation. The bill would overturn two recent U.S. Supreme Court decisions, and is strongly opposed by the National Association of Counties and the Association of Minnesota Counties. It is also in conflict with a 1995 Minnesota water rights statute, authored by prominent Democrats from Oberstar's own district, including former Speaker of the House Irv Anderson, former Sens. Doug Johnson and Bob Lessard, Sen. Tom Bakk and Rep. Tom Rukavina. 

Second, Rep. Oberstar has used his position as chairman of the powerful Transportation and Infrastructure Committee in an attempt to get a previous version of the bill passed without a hearing — a truly underhanded tactic for a bill of such significance. Only a last-minute appeal by a handful of Democrats on his committee prevented the bill from going to the floor of the House for a vote.

Finally, and perhaps most troublesome, is Oberstar's decision to keep his constituents in the dark on such a critical and controversial issue. After becoming Transportation Committee chairman in 2007, Mr. Oberstar was asked by a local reporter about his legislative agenda. This issue wasn't even mentioned. In Washington circles, it is widely known that the bill is a top priority for Oberstar, and perhaps one meant to secure his legacy. This is hardly a shining example of representative government at work here. 

From a legal and technical standpoint, this issue is complicated. From a political standpoint, it is simple. Do people want more power and influence concentrated in Washington or closer to home? Past experience in Minnesota and elsewhere tells us that water quality and other environmental problems can be solved faster, better and cheaper at the state and local level, with less help from environmental attorneys and others with hidden agendas, and more help from honest scientists and average people of common sense and goodwill.

Don Parmeter, a native of northern Minnesota, is co-chairman of the National Water and Conservation Alliance, established in 2009 to develop and promote local and regional alternatives to expansion of federal authority under the 1972 Clean Water Act.

OTHER ENVIRONMENTAL JUSTICE COMMUNITIES

 

Cooperating Technical Partners (CTP) Program

U.S. Department of Justice
and the
Federal Trade Commission
Issued: August 19, 2010

 

A NEW PATH TO SAFE WATERSHEDS, SOS, SAFE ON SOIL

The purpose outlined in the SWR—drinkable water—is not new . In fact, this strategy is about how we can achieve a leap forward in our nation's watersheds to realize this purpose.

Eastern District Holds That Plaintiffs May Rely on a “Few Representative Inquiries” and Extrapolate to the Class

In 23(b)(1) , 23(b)(3) Class , CAFA , Certification , Extrapolation on September 6, 2010 at 2:17 am

 

Enviros getting paid to go away - and the taxpayer and consumer get to pay again

 

Food Security Issues; Food Safety (Animal Agriculture); Farm Bill; and EPA Issues

 

The Army Corps of Engineers is putting solar panels on nine dams in California, and the Department of Homeland Security will include rain gardens and other green landscaping

AIG Derivative Suit Against Greenberg Settles for $90 Million

The Work

September 28, 2010 12:04 PM

"Granddaddy" of AIG Subprime Suit Goes On

Posted by Zach Lowe

Those folks wondering when company higher-ups are going to be punished for their roles in the economic collapse can take heart in one procedural victory: A federal judge Monday refused to dismiss a shareholder suit accusing AIG and top executives of making false statements about the insurance giant's exposure to subprime mortgages, according to our colleague Andrew Longstreth at The Am Law Litigation Daily

Longstreth describes the case as "one of the granddaddies of pending subprime securities litigation" and reports Judge Laura Swain of federal court in Manhattan didn't buy AIG's argument that the company's public filings contained enough cautionary language about subprime exposure. AIG has turned to Weil, Gotshal & Manges for counsel in the case, and the company was quick to point out that Swain's ruling did not touch on the merits of the lawsuit, Longstreth reports. The company said it is confident Swain will find no evidence of fraud. 

A pile of other Am Law firms are representing various current and former AIG executives, outside directors, and other entities named in the case. The roster includes: Akin Gump Strauss Hauer & Feld , Latham & Watkins , Simpson Thacher & Barlett , Cravath, Swaine & Moore , and Gibson, Dunn & Crutcher . The latter is advising Joseph Cassano, who headed up AIG's now-infamous financial products unit and is considered by many to be one of the villains of the financial implosion, the Lit Daily reports. 

Legal/Regulatory

Treasury Hid A.I.G. Loss, Report Says

October 26, 2010, 1:51 am

The United States Treasury concealed $40 billion in likely taxpayer losses on the bailout of the American International Group earlier this month, when it abandoned its usual method for valuing investments, according to a report by the special inspector general for the Troubled Asset Relief Program , Mary Williams Walsh reports in The New York Times.

“In our view, this is a significant failure in their transparency,” said Neil M. Barofsky, the inspector general, in an interview on Monday.

In early October, the Treasury issued a report predicting that the taxpayers would ultimately lose just $5 billion on their investment in A.I.G., a remarkable outcome, since the insurance company was extended $182 billion in taxpayer money in the early months of its rescue. The prediction of a modest loss, widely reported as A.I.G., the Federal Reserve and the Treasury rushed to complete an exit plan, contrasted with an earlier prediction by the Treasury that the taxpayers would lose $45 billion.

 

 

 

 

On November 16, 1909 , Attorney General George Wickersham signed a two-page order creating "The Public Lands Division" of the Department of Justice. He assigned all cases concerning "enforcement of the Public Land Law" including Indian rights cases to the new Division, and transferred a staff of nine -- six attorneys and three stenographers -- to carry out those responsibilities. As the nation grew and developed, so did the responsibilities of the Division and its name changed to the "Environment and Natural Resources Division" to better reflect those responsibilities. The Division, which is organized into nine sections, has offices in Washington, D.C., Anchorage, Boston, Denver, Sacramento, San Francisco and Seattle, and a staff of over 600 people. It currently has over 6,000 active cases, and has represented virtually every federal agency in courts all over the United States and its territories and possessions.

 

regarding questions about the U.S. Environmental Protection Agency's promotion of “beneficial uses” and the close ties between those EPA efforts and industry lobby groups (see posts here and here ).

Now this week, a report from the EPA's own Inspector General has some criticism of the agency's actions regarding a Web site promoting “beneficial uses”:

EPA's C2P2 Website presented an incomplete picture regarding actual damage and potential risks that can result from large-scale placement of CCRs. In its May 2010 proposed rule, EPA showed that environmental risks and damage can be associated with the large-scale placement of unencapsulated CCRs. According to EPA's proposed rule, unencapsulated use of CCRs may result in environmental contamination, such as leaching of heavy metals into drinking water sources. The proposed rule identified seven cases involving large-scale placement, under the guise of beneficial use, of unencapsulated CCRs, in which damage to human health or the environment had been demonstrated. EPA states in its proposed rule that it does not consider large-scale placement of CCRs as representing beneficial use. However, EPA's C2P2 Website, which contained general risk information, did not disclose this EPA decision and did not make the seven damage cases readily accessible.

The C2P2 Website also contained material that gave the appearance that EPA endorses commercial products. Such an endorsement is prohibited by EPA ethics policies and communications guidelines. We identified 9 of 23 case studies on the Website that reference commercial products made with CCRs or patented business technologies. All 23 of the studies were marked with EPA's official logo but none had the required disclaimer stating that EPA does not endorse the commercial products.

Although EPA has suspended active participation in C2P2 during the rulemaking process, the C2P2 Website remained available for public searches, information, and education. The C2P2 Website contained incomplete risk information on the beneficial use of CCRs. The C2P2 Website also contained apparent or implied EPA endorsements that are prohibited by EPA policies.

 

Cooperative Agreements with Commercial Firms

 

 

§ 21000. LEGISLATIVE INTENT
The Legislature finds and declares as follows:
(a) The maintenance of a quality environment for the people of this state now and in the future is a
matter of statewide concern.
(b) It is necessary to provide a high-quality environment that at all times is healthful and pleasing
to the senses and intellect of man.
(c) There is a need to understand the relationship between the maintenance of high-quality
ecological systems and the general welfare of the people of the state, including their enjoyment
of the natural resources of the state.
(d) The capacity of the environment is limited, and it is the intent of the Legislature that the
government of the state take immediate steps to identify any critical thresholds for the health
and safety of the people of the state and take all coordinated actions necessary to prevent such
thresholds being reached.
(e) Every citizen has a responsibility to contribute to the preservation and enhancement of the
environment.
(f) The interrelationship of policies and practices in the management of natural resources and
waste disposal requires systematic and concerted efforts by public and private interests to
enhance environmental quality and to control environmental pollution.
(g) It is the intent of the Legislature that all agencies of the state government which regulate
activities of private individuals, corporations, and public agencies which are found to affect the
quality of the environment, shall regulate such activities so that major consideration is given to
preventing environmental damage, while providing a decent home and satisfying living
environment for every Californian.
§ 21001. ADDITIONAL LEGISLATIVE INTENT
The Legislature further finds and declares that it is the policy of the state to:
Association of Environmental Professionals 2009 CEQA Statute
2
(a) Develop and maintain a high-quality environment now and in the future, and take all action
necessary to protect, rehabilitate, and enhance the environmental quality of the state.
(b) Take all action necessary to provide the people of this state with clean air and water, enjoyment
of aesthetic, natural, scenic, and historic environmental qualities, and freedom from excessive
noise.
(c) Prevent the elimination of fish or wildlife species due to man’s activities, insure that fish and
wildlife populations do not drop below self-perpetuating levels, and preserve for future
generations representations of all plant and animal communities and examples of the major
periods of California history.
(d) Ensure that the long-term protection of the environment, consistent with the provision of a
decent home and suitable living environment for every Californian, shall be the guiding
criterion in public decisions.
(e) Create and maintain conditions under which man and nature can exist in productive harmony to
fulfill the social and economic requirements of present and future generations.
(f) Require governmental agencies at all levels to develop standards and procedures necessary to
protect environmental quality.
(g) Require governmental agencies at all levels to consider qualitative factors as well as economic
and technical factors and long-term benefits and costs, in addition to short-term benefits and
costs and to consider alternatives to proposed actions affecting the environment.
§ 21001.1. REVIEW OF PUBLIC AGENCY PROJECTS
The Legislature further finds and declares that it is the policy of the state that projects to be carried
out by public agencies be subject to the same level of review and consideration under this division
as that of private projects required to be approved by public agencies.
§ 21002. APPROVAL OF PROJECTS; FEASIBLE ALTERNATIVE OR MITIGATION MEASURES
The Legislature finds and declares that it is the policy of the state that public agencies should not
approve projects as proposed if there are feasible alternatives or feasible mitigation measures
available which would substantially lessen the significant environmental effects of such projects,
and that the procedures required by this division are intended to assist public agencies in
systematically identifying both the significant effects of proposed projects and the feasible
alternatives or feasible mitigation measures which will avoid or substantially lessen such significant
effects. The Legislature further finds and declares that in the event specific economic, social, or
other conditions make infeasible such project alternatives or such mitigation measures, individual
projects may be approved in spite of one or more significant effects thereof.
§ 21002.1. USE OF ENVIRONMENTAL IMPACT REPORTS; POLICY
In order to achieve the objectives set forth in Section 21002, the Legislature hereby finds and
declares that the following policy shall apply to the use of environmental impact reports prepared
pursuant to this division:
(a) The purpose of an environmental impact report is to identify the significant effects on the
environment of a project, to identify alternatives to the project, and to indicate the manner in
which those significant effects can be mitigated or avoided.
(b) Each public agency shall mitigate or avoid the significant effects on the environment of
projects that it carries out or approves whenever it is feasible to do so.
(c) If economic, social, or other conditions make it infeasible to mitigate one or more significant
effects on the environment of a project, the project may nonetheless be carried out or approved
Association of Environmental Professionals 2009 CEQA Statute
3
at the discretion of a public agency if the project is otherwise permissible under applicable laws
and regulations.
(d) In applying the policies of subdivisions (b) and (c) to individual projects, the responsibility of the
lead agency shall differ from that of a responsible agency. The lead agency shall be responsible
for considering the effects, both individual and collective, of all activities involved in a project.
A responsible agency shall be responsible for considering only the effects of those activities
involved in a project which it is required by law to carry out or approve. This subdivision
applies only to decisions by a public agency to carry out or approve a project and does not
otherwise affect the scope of the comments that the public agency may wish to make pursuant
to Section 21104 or 21153.
(e) To provide more meaningful public disclosure, reduce the time and cost required to prepare an
environmental impact report, and focus on potentially significant effects on the environment of
a proposed project, lead agencies shall, in accordance with Section 21100, focus the discussion
in the environmental impact report on those potential effects on the environment of a proposed
project which the lead agency has determined are or may be significant. Lead agencies may
limit discussion on other effects to a brief explanation as to why those effects are not
potentially significant.
§ 21003. PLANNING AND ENVIRONMENTAL REVIEW PROCEDURES; DOCUMENTS; REPORTS; DATA BASE;
ADMINISTRATION OF PROCESS
The Legislature further finds and declares that it is the policy of the state that:
(a) Local agencies integrate the requirements of this division with planning and environmental
review procedures otherwise required by law or by local practice so that all those procedures, to
the maximum feasible extent, run concurrently, rather than consecutively.
(b) Documents prepared pursuant to this division be organized and written in a manner that will be
meaningful and useful to decision makers and to the public.
(c) Environmental impact reports omit unnecessary descriptions of projects and emphasize feasible
mitigation measures and feasible alternatives to projects.
(d) Information developed in individual environmental impact reports be incorporated into a data
base which can be used to reduce delay and duplication in preparation of subsequent
environmental impact reports.
(e) Information developed in environmental impact reports and negative declarations be
incorporated into a data base which may be used to make subsequent or supplemental
environmental determinations.
(f) All persons and public agencies involved in the environmental review process be responsible
for carrying out the process in the most efficient, expeditious manner in order to conserve the
available financial, governmental, physical, and social resources with the objective that those
resources may be better applied toward the mitigation of actual significant effects on the
environment.

1. Operative Clause.

N.Y. Fed Proposes Replacement For GSE

08-31-2010

 

 

Citations for: Withdrawal of Proposed Rules; Discontinuing Rulemaking Efforts Listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions

Explore citations and references

Citations

ATSDR has informed EPA that it no longer needs EPA to finalize this proposed rule. Therefore, OPPT is withdrawing this proposed test rule and removing it from the EPA Semi-Annual Regulatory Agenda.

Restoration Partners Break Ground for Battle Creek Salmon and Steelhead Restoration Project

Cases: Private Attorney General (CCP 1021.5)

September 18, 2010

Private Attorney General Statute: Fourth District, Division 1 Reverses Trial Judge's Refusal To Allow Supplemental Trial Fees To Plaintiffs That Obtained Appellate Success For CEQA Claims

Appellate Panel Also Has Good Things to Say for Appellate Attorneys—Their Work is Specialized and May Command Higher Fee Awards Despite Some Duplication With Trial Work.

 

Center for Biological Diversity v. County of San Bernardino , Case No. D056972 (4 th Dist., Div. 2 Sept. 17, 2010) (certified for publication) is an interesting case mainly for appellate attorneys but also for Bar members that win an appeal and then seek to obtain supplemental trial work fees based on the appellate win.

     Boiling down the procedural posture of the case, plaintiffs (environmental groups) brought three claims against County and developer relating to the Blue Ridge project at Lake Arrowhead. Initially, they won a claim but lost two CEQA claims, requesting $191,729.05 in fees but only receiving an initial award of $50,000. All sides appealed, eventually stipulating to dismiss with prejudice their appeals of the initial attorney's fees order. The appellate court (4 th Dist., Div. 2), on the merits, held the lower court erred by denying the two CEQA claims. On remand after assignment to a new trial judge, plaintiffs moved for a second fee award, primarily trying to recoup (1) attorney's fees for prevailing on appeal; and (2) supplemental trial work fees based on their greater success on appeal. Plaintiffs sought a total of $563,926.45, broken down this way: (1) $136,230.45 for trial work; (2) $180,324.65 for appellate work; (3) $256,967.10 based on a 2.0 multiplier for the contingent portion of the representation; and (4) $40,405.25 for “fees on fees” in bringing the fee motion (although offsetting $50,000 for the first fee award). The new trial judge awarded nothing more for trial work, determining it lacked jurisdiction in light of the dismissal of the first fee appeal, but did award $62,530 for appellate work—after determining there had been two much duplication of work by appellate attorneys and disallowing out-of-town counsel hourly rates exceeding Inland Empire $370 hourly rates—and $10,000 “fees on fees.” Plaintiffs appealed again, this time going before the Fourth District, Division 1 (a panel to which the appeal was transferred).

     Plaintiffs obtained another reversal and remand in a 27-page Slip Opinion authored by Presiding Justice McConnell on behalf of a 3-0 panel.

     The appellate panel first found that there was nothing wrong with plaintiffs' efforts to obtain supplemental trial work fees based on the appeal success on two CEQA claims previously denied. Plaintiffs did not have to appeal the first fees award to get supplemental fees given the subsequent appellate win.

     Plaintiffs sought hourly rates between $370-625 for specialized Santa Monica environmental attorneys, but the trial court only allowed $370 Inland Empire attorney hourly rates. The appellate court found this was an abuse of discretion given the contrary proof of reasonableness presented by plaintiffs: (1) a National Law Journal annual survey showing L.A. rates that were in the requested range; (2) declarations showing that the requested rates were in the range of what other courts had awarded in other California venues; and (3) testimony showing qualified environmental representation in the local area was slim (if not nonexistent). The Court of Appeal noted that fee awards do not have to invariably be limited to local rates, depending upon whether there is a reservoir of attorneys in the local area that could prosecute the matter—something not established in this case. (See, e.g., Horsford v. Board of Trustees of Cal. State Univ., 132 Cal.App.4 th 359, 397, 399 (2005).) The appellate panel also rejected that a reduction in hourly rates was necessary just because the Santa Monica firm occasionally entered into fee arrangements with lower hourly rates. ( Chacon v. Litke, 181 Cal.App.4 th 1234, 1260 (2010).)

     Then, in a discussion that should make appellate attorneys feel more appreciated, the Center for Biological Diversity court found that trial and appellate work is quite different—such that it was an abuse of discretion to reduce the claimed hours because the appellate attorneys had to duplicate some of the efforts of the trial attorneys. “ . . . trial court preparation and appellate work are not commensurate tasks. As [real party's] counsel acknowledged at oral argument, preparation of an appellate brief and record is far more complicated than merely ‘repackaging' the trial court brief.” (Slip Opn., p. 21; see also In re Marriage of Shaban, 88 Cal.App.4 th 398, 408-410 (2001).) Often times, the appellate court observed, duplication by appellate attorneys is necessary duplication, with it being an abuse of discretion to cut 56% of the hours claimed by plaintiffs for appellate work.

     Matter reversed and remanded, which will likely result in a much higher fee award for plaintiffs this time around. (The multiplier issue was left to be reconsidered on remand, but the appellate court did caution against double counting.)

May 28, 2010

Private Attorney General Statute: CEQA Winner Entitled To Substantial Fee Recovery As Well As Fees For Prevailing On Appeal

 

Fourth District, Division 1 Affirms $265,715.55 Fee Award Under CCP Section 1021.5.

 

     In Center For Biological Diversity v. County of San Bernardino , Case Nos. D056652/D056648 (4 th Dist., Div. 1 May 25, 2010) (certified for partial publication; fee discussion not published), two nonprofit organizations successfully challenged the County of San Bernardino's approval of an open-air human waste composting facility under CEQA. Subsequently, the trial court awarded winners $265,715.55 in attorney's fees pursuant to California's private attorney general statute, Code of Civil Procedure section 1021.5. (Winners had requested fees of $263,708, augmented by a 1.5 multiplier.) The trial court reduced the lodestar request to $159,863.70, nearly 60%, before increasing the lodestar by a 1.5 multiplier—which brought the total to $239,990.55, with another $25,725 in “fees on fees” accounting for the difference in reaching $265,715.55.)

     County and real party in interest (real party being the project developer) appealed the merits and fee judgments.

     They both lost.

Initially, one of the nonprofits brought a motion to dismiss real party's appeal of the fee award based on a lack of standing. However, this was denied because real party had agreed to indemnify County for any fee award, meaning it was “aggrieved” for purposes of appealing under Code of Civil Procedure section 902.

     The appellate court found no abuse of discretion as far as the substantive basis of the fee award. The air quality and water supply issues were important rights that conferred a significant benefit on the public. The merits judgment meant that the County had to consider the impacts before project approval rather than afterwards—a fundamental purpose underlying CEQA protections.

     That brought the Court of Appeal to the reasonableness of the amount of the award. The trial court showed its thoughtfulness by reducing the fee request on numerous grounds, resulting in a nearly 60% reduction before applying a multiplier. Nothing wrong with that analysis, said the Court. Losers argued that the lower court had to discuss each of the multiplier factors before making an enhancement, but no authority was cited for such a proposition such that it was rejected.

     The appellate panel recognized that winners were entitled to fees on appeal for prevailing, but remanded to the trial court to determine those fees—dubbing it the “better practice.” ( Security Pacific National Bank v. Adamo, 142 Cal.App.3d 492, 498 (1983).)

DEMAND FOR AN ACCOUNTING OF GOVERNMENT PAY FOR ATTORNEYS PROSECUTING IRON MOUNTAIN MINE AND T.W. ARMAN

 

 

Antitrust law violations

In 1911, the Supreme Court of the United States found Standard Oil Company of New Jersey in violation of the Sherman Antitrust Act and held that Standard Oil, which by then still had a 64% market share, originated in illegal monopoly practices and ordered it to be broken up into 34 new companies. These included, among many others, Continental Oil, which became Conoco, now part of ConocoPhillips; Standard of Indiana, which became Amoco, now part of BP; Standard of California, which became Chevron; Standard of New Jersey, which became Esso (and later, Exxon), now part of ExxonMobil; Standard of New York, which became Mobil, now part of ExxonMobil; and Standard of Ohio, which became Sohio, now part of BP. Rockefeller, who had rarely sold shares, owned substantial stakes in all of them.

 

EPA fines E. Idaho company for water violations

Supreme Court to decide if AT&T is a person

By Sara Jerome - 09/29/10

EPA is at war with ranchers says NCBA

October 9, 2010

Creditors Face Losses in U.S. Financial Breakups

Chinese seek nod from Ottawa to proceed with Potash acquisition

UNIVERSITY,

Universitas ; the civil law term for a corporation. 1 Comm. 469.] A place where all kinds of literature are universally taught.

The Universities, with us, are taken for those two bodies which are the nurseries of learning and liberal science in this kingdom, viz. Oxford and Cambridge, endowed with great privileges.

By 13 El'tz. e. 29. it was enacted, That each of the universities shall be incorporated by a certain name, though they were ancient corporations before; and that all letters patent and charters granted to the universities shall be good and effectual in law: that the chancellor, masters, and scholars of either of the said universities, shall enjoy all manors, lands, liberties, franchises, and privileges, and all other things which the said corporate bodies have enjoyed, or of right ought to enjoy, according to the intent of the said letters patent; and all letters patent, and liberties, franchises, &c. shall be established and confirmed; any law, usage, &c. to the contrary notwithstanding.

The universities have the keeping of the assise of bread and beer, and are to punish offences concerning it: also they have the assise of wine and ale, &c. and the chancellor, his commissary, and deputy, are justices of peace for the rill of Oxon, county of Oxon, and Berks, by virtue of their offices ; see 51 Hen. 3 ; 31 Edtv. 1. (both repealed); 7 Edn>. 6 ; 2 & 3 P. $ M. ; and the chart. 29 Edw. 3; 14 Hen. 8 ; 1 & 2 Geo. 4. c. 50. § 24. &c.

And the Vice-chancellor of Cambridge may act as justice of the county, without the landed qualification. 7 Geo. 2. c. 10. See Justices of Peace.

Persons acting theatrical performances within the precincts of either university, or five miles thereof, shall be deemed vagrants; and the chancellor, &c. may commit them to the house of correction, or common gaol for one month. 10 Geo. 2. c. 19. But it is doubtful whether this provision is not repealed by the 3 Geo. 4. c. 40. and players generally are not now within the vagrant act. See Vagrant.

Their courts are called the chancellors' courts. The chancellors are usually peers of the realm, and are appointed over the whole university. But the courts are kept by their vicechancellors, their assistants, or deputies; their causes are managed by advocates or proctors. See chart. 14 Hen. 8.

As to the power of these courts in civil cases, see Courts of the Universities. The following particulars are also deserving notice.

These courts have jurisdiction in all causes, ecclesiastical and civil, (except those relating to freehold.) where a scholar, servant, or minister of the university, is one of the parties in suit. Cro. Car. 73.

Their proceedings are in a summary way, according to the practice of the civil law ; and in their sentences they follow the justice and equity of the civil law, or the laws, statutes, privileges, liberties, and customs of the universities, or the laws of the land, at the discretion of the chancellor. Cro. Car. 73 ; Heatley, 25 ; Hard. 508.

If there is an erroneous sentence in the chancellor's court of the university of Oxford, an appeal lies to the congregation, thence to the convocation, and thence to the king in chancery, who nominates judges delegates to hear the appeal; the appeal is of the same nature in Cambridge. Wood's Inst. 549; 2 Ld. Raym. 13, 46.

As cognizance is granted to tiie university of all suits arising any where in law or equity, against a scholar, servant or minister of the university, depending before the justices of the King's Bench, Common Pleas, and others there mentioned, and before any other judge, though the matter concern the king; therefore, if an indebitatus assumpsit is brought by quo minus in die exchequer against a scholar or other privileged person, the university shall have conusance, for the court of exchequer is included in the general words. Cro. Car. 73 ; Hard. 505.

Bat if a debtor and accountant to the king sues a scholar by bill in equity in the exchequer, or if an attorney sues a scholar by writ of privilege, it is said that the universities shall not have conusance, for a general grant shall not take away the special privilege of any court. Hard. 189; Lit. Re]). 304 ; 3 Leon. 149.

But in the cases where privilege is allowable, a scholar, &c. cannot waive his privilege and have a prohibition in the courts of Westminster; for the university by right has the conusance of the plea, where one is a privileged person ; and a stranger is forced to sue a privileged person in the courts, by reason of that right vested in them. Cro. Car. 73 ; Hell. 28.

But a scholar ought to be resident in the university at the time of the suit commenced ; and no other ought to be joined in the action with him, for in such case he shall not have privilege. Hetl. 28. Though it is said that servants of the university are privileged, yet it has been held that a bailiff of a college was not capable of privilege. Brownl. 74. Neither is a townsman entitled to privilege, to exempt him from an office in the town, if he keeps a shop and follows a trade, though he is matriculated as servant to a scholar. 2 Vent. 106.

It is to be observed, that though cases as to freehold appear, as above, to be the only causes excepted in their charter, yet it has been held that in actions for the recovery of the possession of a term, without claiming title to the freehold, the universities shall have no privilege, because the freehold may come in question. Cro. Car. 87, 88 ; Litt. R. 252.

It hath been disputed how far the words of the grant entitled them to privilege in matters of equity. And the general principle of construction seems to be, that where chattels only are concerned, or where damages only are to be given, there their privilege is allowable; but where the suit is for the thing itself, there their privilege cannot be allowed. Vide 2 Vent. 362.

Thus if a scholar of Oxford or Cambridge be sued in Chancery for a special performance of a contract to lease lands in Middlesex, the university shall not have conusance, because they cannot sequester the lands. Gilb. Hist. ofC. P. 194. cites 2 Vent. 363.

Conusance was granted to the university of Oxford (no cause being shown to the contrary) in Easter Term, 9 Geo. 2. in the case of Woodcocke and Brooke. Hardw. 241.

A claim of conusance made by the vice-chancellor of the university of Oxford (in the vacancy of the office of chancellor by death,) on behalf the university, was allowed in a plea of trespass. 11 East, 543.

Conusance of a plea of trespass sued against a resident member of the university of Cambridge for a cause of action, verified by affidavit to have arisen within the town and suburbs of Cambridge, over which the university court has jurisdiction, was allowed upon the claim of the vice-chancellor, on behalf of the chancellor, masters, and scholars of the university, entered on the roll in due form, setting out their jurisdiction under charters confirmed by acts of parliament, and averring the cause of action to have arisen within such jurisdiction. 12 East, 12.

So claim of conusance by the university of Oxford was al

lowed in an action of trespass against a proctor, a pro-proctor, and the marshal of the university, though the affidavit of the latter, describing him as of a parish in the suburbs of Oxford only, verified that he then was, and for the last fourteen years had been, a common servant of the university, called marshal of the university, and that he was sued for an act done by him in discharge of his duty, and in obedience to the orders of the other two defendants, without stating that he resided within the university, or that he was matriculated. 15 East, €34. Sae further, Cognizance.

The jurisdiction of the criminal courts in the university of Oxford, is thus stated by Blackslone, and it is believed that of Cambridge is nearly similar. See 2 Ld. Raym. 13, 46.

The chancellor's court of Oxford hath authority to determine all causes of property, wherein a privileged person is one of the parties, except only causes of freehold; and also all criminal offences or misdemeanors under the degree of treason, felony, or mayhem. The prohibition of meddling with freehold 3till continues ; but the trial of treason, felony, and mayhem, by a particular charter, is committed to the university jurisdiction in another court, namely, the court of the lord high steward of the university.

For by the charter of 7th June, 2 Hen. 4. (confirmed among the rest by the 13 Eliz. c. 29,) cognizance is granted to the university of Oxford of all indictments of treasons, insurrections, felony, and mayhem, which shall be found in any of the king's court against a scholar or privileged person; and they are to be tried before the high steward of the university, or his deputy, who is to be nominated by the chancellor of the university for the time being. But when his office is called forth into action, such high steward must be approved by the lord high chancellor of England ; and a special commission under the great seal is given to him and others to try the indictment then depending, according to the law of the land and the privileges of the said university. When, therefore, an indictment is found at the assizes or elsewhere, against any scholar of the university or other privileged person, the vice-chancellor may claim the cognizance of it; and (when claimed in due time and manner) it ought to be allowed him by the judges of assize ; and then it comes to be tried in the high steward's court. But the indictment must first be found by a grand jury, and then the cognizance claimed ; for it seems that the high steward cannot proceed originally ad inquirendum ; but only, after inquest in the common law courts, ad audiendum ct determinandum. Much in the same manner as when a peer is to be tried in the court of the lord high steward of Great Britain, the indictment must first be found at the assizes, or in the Court of King's Bench, and then (in consequence of a writ of certiorari,') transmitted to be finally heard and determined before his grace the lord high steward and the peers. See Parliament, Peers.

When the cognizance is so allowed, if the offence be inter minora crimina, or a misdemeanor only, it is tried in the chancellor's court by the ordinary judge. But if it be for treason, felony, or mayhem, it is then, and then only, to be determined before the high steward, under the king's special commission to try the same. The process of the trial is this : the high steward issues one precept to the sheriff of the county, who thereupon returns a panel of eighteen freeholders ; and another precept to the beadles of the university, who thereupon return a panel of eighteen matriculated laymen, " laicos privilegio universitatis gaudentes." And by a jury formed de medietate, half of freeholders and half of matriculated persons, is the indictment to be tried, and that in the Guildhall of the city of Oxford. And if execution be necessary to be awarded in consequence of finding the party guilty, the sheriff of the county must execute the university process, to which he is annually bound by an oath. tComm. c. 19. p. 277, 278.

The universities and royal colleges are excepted out of the Statute of Charitable Uses, 43 Eliz. c. 4. § 2. See Charitable Uses.

They are also excepted out of the Mortmain Act. Colleges possessed of more advowsons than a moiety of the Fellows, were not to purchase more, by that statute § 4. 5 ; but this was repealed by 45 Geo. 3. c. 101. See Mortmain.

Universities may file a bill in equity to discover trusts, 12 Ann. st. 2. c. 14. § 4. Pending quare impedit, a rule may be made for examining patron and clerk, 12 Ann. st. 2. c. 14. §5.

The presentation of benefices belonging to Papists was given to the two universities by the 1 W. § M. st. 1. c. 26 ;

12 Ann. st. 2. c. 14 ; and grants made by papists of ecclesiastical livings vested in the universities, were declared void by the 11 Ceo. 2. c. 17. §5.

Collegians refusing to take the oaths, the king may nominate persons to succeed. Mandamus lies to admit the king's nominee, 1 Geo. 1. st. 2. c. 13. See title Mandamus.

In the 4 T. R. 244, the Court of King's Bench thought that a mandamus was the proper mode of trying the validity of an election made by the fellows of Trinity Hall, Cambridge, which was disputed by the master. And see further, as to the election of fellows, &c. 5 Russ. 65, 73, 76, 85.

Independent members of a college are mere boarders, and have no corporate rights ; nor can they appeal to the visitor. And if a college do not exceed its jurisdiction, the king's courts have no cognizance, and expulsion of a member is a matter entirely within its jurisdiction. Corvp. 319. And see 6 T. R. 89.

USA. The river Isis, which river was termed Isis from the goddess of that name; for it was customary among the Pagans to dedicate hills, woods and rivers to favourite goddesses, and to call them after their names. The Britons, having the greatest reverence for Ceres and Proserpina, who was also called Isis, did for that reason name the river Isis; she being the goddess of the night, thence they computed days by nights, as seven-night, &c. Blount.

USAGE. Differs from custom and prescription. No man may claim a rent, common, or other inheritance by usage, though he may by prescription. 6 Rep. 65. See Custom, Prescription, Ways, fyc.

USANCE. A calendar month, as from May 20th to June 20th, and double usance is two such months. See further, Bills of Exchange, I. 1.

USE,

Usus.] Is, in application of law, the profit or benefit of lands and tenements, or a trust and confidence reposed in a man for the holding of lands, that he to whose use the trust is made shall take the profits thereof. West. Sum. par. 1;

I Inst. 272.

Use And Occupation. The current of ancient authorities is against the action on the case upon promises, for rent, in respect of a lease for years. It was a matter savouring of the realty, for which debt was the proper remedy; and therefore they seem to have agreed that assumpsit would not lie, except in the case of an express promise made to pay the rent after the expiration of the term, in consideration of previous enjoyment, where no certain sum was agreed upon, and the plaintiff merely went upon his quantum meruit, in consideration of the defendant's previous occupation. See Comyn's Land. 8f Ten. and the authorities there cited.

But assumpsit lay for rent at common law, on an express promise made at the same time as the lease, although not an implied promise. Bui. N. P. 138. However, all difficulties in the case of demises not under seal are removed by the

II Geo. 2. c. 19. § 14. See the clause, Rent, II.

This act, in the case of houses, lands, &c. gives a right of action against the occupier for rent, without the necessity of setting forth the particulars of the demise. 6 T. R. 62 ; 6 East, 348.

The statute only gives a remedy where there is no demise by deed. 2 Fes. jun. 307. But where there were articles of agreement under seal, by which A. agreed to let and make a lease to the defendant, Lord Kenyon, C. J. held the defendant might be charged in assumpsit for his use and occupation of the premises, because he did not hold under a deed, but only an agreement for a lease. 4 Esp. 59. And so where a lease by deed has expired, and the tenant holds over, the landlord may recover for the subsequent occupation of the lessee or his under-tenant, in an action of assumpsit. 1 Esp. 57.

The action for use and occupation is founded on a contract, and unless there be a contract express or implied, it cannot be maintained. 1 T. R. 378. It follows, therefore, that it cannot be supported where an ejectment is pending for the same premises, as the two remedies are inconsistent. But after a recovery in ejectment, the landlord may maintain use and occupation for the rent to the time of the demise laid in the ejectment, but not after. Comp. 246. So use and occupation will not lie where the title is in dispute, ejectment being the proper action to try such title. See Woodfall's Land. $ Ten. 607, Zd ed.

Where an express contract can be proved between the parties, the defendant is liable, whether he occupies the premises or not, for the action lies for a constructive as well as an actual occupation. 6 Bing. 206.

So where there is no other contract than is to be inferred from the fact of occupation, as tenant by permission of the plaintiff, the defendant is liable.

If A. agree to let lands to B., who permits a third person to occupy them, A. may recover the rent against B. in an action for use and occupation. 8 T. R. 327.

There must, however, be an occupation by some one; for it has been decided, that a tenant who agrees to take furnished lodgings, but does not enter, is not liable in an action for use and occupation. 1 C. %¦ J. 391.

There must also be a beneficial enjoyment. Thus, where the defendant agreed " to become tenant by occupying," and it appeared that the house was not fit for comfortable occupation, it was held the plaintiff could not recover. 4 C. &r P. 65 ; and see 7 D. Sf R. 117. So where the premises are un wholesome for want of draining, if the evil cannot be remedied by ordinary and reasonable care and expense on the part of the tenant. 1 Moo. $ R. 112.

But where premises have been demised for a term, the landlord may recover, in an action for use and occupation, the rent accruing due after the premises are burnt, and of course are no longer inhabited by the tenant. See 4 Taunt. 45.

The action will not lie where premises are let, with the knowledge of the plaintiff, for an immoral purpose, as for prostitution. See 1 Esp. 13 ; 1 B. $ P. 340 ; and see 2 C. 8fP. 347; R. Sf M. 251.

Whenever it appears that the defendant has come in under the plaintiff, the rule of law that a tenant shall not dispute his landlord's title prevails, and he will not be permitted to show that the plaintiff has no legal estate. Thus, where premises had been let to B. for a term determinable by a notice to quit, and pending such term C. applied to A. the landlord, for leave to become the tenant instead of 15., and A. consenting, C. agreed to stand in B.'s place, and offered to pay rent: it was held, that (though B.'s term had not been determined either by a notice to quit, or a surrender in writing) A. might maintain an action for use and occupation against C, and the latter could not set up B.'s title in defence to that action. 1 B. §• A. 50.

And although in ejectment, where the tenant is equally debarred from proving that his landlord never had any title, he may show that the landlord's title has expired. 4 T. R. 682. Yet it seems, that, in an action for use and occupation, the defendant will not be permitted, though he admit the landlord's original title, to show that it has ceased to exist, unless he solemnly renounce the plaintiff's title at the time, and commenced a fresh holding under another person. 2 Camp. 11.

Where premises are let at an entire rent, an eviction from part, if the tenant thereupon gives up possession of the residue, is a complete defence to this action. 3Campb.513. But if he continue in possession of such residue, he is liable for that portion. 3 Campb. 514, n.

Use and occupation lies where the tenant quits the premises without any regular determination of the demise ; and in such a case the plaintiff will not be debarred from recovering by having put up a bill at the window to let the apartments. 3 Esp. 225.

Where, however, a tenant from year to year quitted at the expiration of a year without giving notice, and before the next half year expired, the landlord let the premises to another person, who occupied them, it was held he was not entitled to recover rent from the first tenant from the time the latter quitted to the period when the premises were relet. 5 B. $ C. 332 ; and see 3 Bing. 462.

See further, Distress, Ejectment, Lease, Rent, fyc.

Uses And Trusts. The following extract from the Commentaries (lib. 2. c. 20.) seems to afford the clearest and most perspicuous view of the doctrine of uses and trusts, as the most intricate part of our law, and on which our modern conveyances are in general founded. See further, as connected with the subject, titles Conveyance, Deed, Fine of Lands, Lease and Release, Mortmain, Recovery, Trusts, fyc.

Uses and trusts are, in their original, of a nature very similar, or rather, exactly the same; answering more to the jidei commissum that the usus fructus of the civil law, which latter was the temporary right of using a thing without having the ultimate property or full dominion of the substance. But in our law a use was a confidence reposed in another, who was tenant of the land or terre-tenant, that he should dispose of the land according to the intention of cestui que use, or him to whose use it was granted, and suffer him to take the profits. As if a feoffment was made to A. and his heirs, for the use of (or in trust for) B. and his heirs: here at the common law, A., the terre-tenant, had the legal property and possession of

the land, but B., the cestui que use, was in conscience and equity to have the profits and disposal of it. Plowd. 352.

This notion was transplanted into England from the civil law, about the close of the reign of Edward III. by means of the foreign ecclesiastics, who introduced it to evade the statutes of mortmain, by obtaining grants of lands, not to their religious houses directly, but to the use of the religious houses, which the clerical chancellors of those times held to be Jidei-commissa, and binding in conscience ; and therefore assumed the jurisdiction of compelling the execution of such trusts in the Court of Chancery. See 50 Edtv. 3. c. 6 ; 1 Rich. 2. c. 9 ; 1 Rep. 139 ; and title Mortmain. And as it was most easy to obtain such grants from dying persons, a maxim was established, that though by law the lands themselves were not devisable, yet if a testator had enfeoffed another to his own use, and so was possessed of the use only, such use was devisable by will. But this evasion was crushed by 15 Rich. 2. c. 5. with respect to religious houses. See Mortmain. Yet the idea being once introduced, however fraudulently, it afterwards continued to be often innocently, and sometimes very laudably, applied to a number of civil purposes; particularly as it removed the restraint of alienations by will, and permitted the owner of lands, in his lifetime, to make various designations of their profits, as prudence, or justice, or family convenience, might from time to time require; till at length, during our long wars in France, and the subsequent civil commotions between the houses of York and Lancaster, uses grew almost universal; through the desire that men had (when their lives were continually in hazard) of providing for their children by will, and of securing their estates from forfeitures, when each of the contending parties, as they became uppermost, alternately attainted the other. Wherefore, about the reign of Edward IV. (before whose time Lord Bacon remarks there are not six cases to be found relating to the doctrine of uses) the courts of equity began to reduce them to something of a regular system. See Bacon on Uses, 313.

Originally it was held that the Chancery could give no relief but against the very person himself intrusted for cestui que use, and not against his heir or alienee. This was altered in the reign of Henry VI. with respect to the heir ; and afterwards the same rule, by a parity of reason, was extended to such alienees as had purchased either without a valuable consideration, or with an express notice of the use. Keilw. 42, 46 ; Y. B. 22 Edw. 4. c. 6; Bac. Uses, 312. But a purchaser for a valuable consideration, without notice, might hold the land discharged of any trust or confidence. And also it was held that neither the king or queen on account of their dignity royal, nor any corporation aggregate on account of its limited capacity, could be seised to any use but their own, that is, they might hold the lands, but were not compellable to execute the trust. Bac. Uses, 346, 347. And if the feoffee to uses died without heir, or committed a forfeiture, or married, neither the lord who entered for his escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom dower was assigned, were liable to perform the use, because they were not parties to the trust, but came in by act of law, though doubtless their title in reason was no better than that of the heir. 1 Rep. 122.

On the other hand, the use itself, or interest of cestui que use, was learnedly refined upon, with many elaborate distinctions : and 1. It was held that nothing could be granted to a use, whereof the use is inseparable from the possession, as annuities, ways, commons, and authorities, quae ipso usu consumunlur, or whereof the seisin could not be instantly given. 1 Jon. 127; Cro. Eliz. 401.—2. A use could not be raised without a sufficient consideration. For where a man makes a feoffment to another without any consideration, equity presumes that he meant it to the use of himself, unless he expressly declares it to be to the use of another, and then no thing shall be presumed contrary to his own expressions. 1 And. 37. But if either a good or a valuable consideration appears, equity will immediately raise a use correspondent to such consideration. Moor, 684.— 3. Uses were descendible according to the rules of common law, in the case of inheritances in possession ; for in this and many other respects, tequilas sequilur legem, and cannot establish a different rule of property from that which the law has established. 2 Rol. Abr. 780.—4. Uses might be assigned by secret deeds between the parties, or be devised by last will and testament: for as the legal estate in the soil was not transferred by these transactions, no livery of seisin was necessary; and as the intention of the parties was the leading principle in this species of property, any instrument declaring that intention was allowed to be binding in equity. Bac. Uses, 312, 318. But cestui que use could not, at common law, alien the legal interest of the lands, without the concurrence of his feoffee, to whom he was accounted by law to be only tenant at sufferance. See 1 Rich. 3. c. 1.—5. Uses were not liable to any of the feodal burdens, and particularly did not escheat for felony, or other defect of blood; for escheats, &c. are the consequence of tenure, and uses are held of nobody: but the land itself was liable to escheat, whenever the blood of the feoffee to uses was extinguished by crime or by defect; and the lord (as was before observed) might hold it discharged of the use. Jenk. 190.—6. No wife could be endowed, or husband have his curtesy of a use ; for no trust was declared for their benefit at the original grant of the estate. 4 Re]). 1 ; 2 And. 75. And therefore it became customary, when most estates were put in use, to settle before marriage some joint estate to the use of the husband and wife for their lives, which was the original of modern jointures. See Jointure. —7. A use could not be extended by writ of elegit or other legal process, for the debts of cestui que use. I or being merely a creature of equity, the common law, which looked no farther than to the person actually seised of the land, which looked no farther than to the person actually seised of the land, could award no process against it. Bro. Abr. tit. Executions, 90.

It is impracticable here to pursue the doctrine of uses through all the refinements and niceties which the ingenuity of the times (abounding in subtle disquisitions) deduced from this child of the imagination, when once a departure was permitted from the plain simple rules of property established by the ancient law. These principal outlines will be fully sufficient to show the ground of Lord Bacon's complaint, that this course of proceeding " was turned to deceive many of their just and reasonable rights. A man that had cause to sue for land, knew not against whom to bring his action, or who was the owner of it. The wife was defrauded of her thirds; the husband of his curtesy ; the lord of wardship, relief, heriot, and escheat; the creditor of his extent for debt; and the poor tenant of his lease." Bac. Use of the Law, 153. To remedy these inconveniences, abundance of statutes were provided, which made the lands liable to be extended by the creditors of cestui que use; allowed actions for the freehold to be brought against him, if in the actual pernancy or enjoyment of the profits; made him liable to actions of waste; established his conveyances and leases, made without the concurrence of his feoffees; and gave the lord the wardship of his heir, with certain other feodal perquisites. See 50 Edw. 3. c. 6 ; 2 Rich. 2. st. 2, 3 ; 19 Hen. 7. c. 15; 1 Rich. 2. c. 9 ; 4 Hen. 4. c. 7 ; U Hen. 6. c. 3 ; 1 Hen. 7. c. 1 : 11 Hen. 6. c. 5 ; 1 Rich. 3. c. 1 ; 4 Hen. 7. c. 17; 19 Hen. 7. c. 15.

These provisions all tended to consider cestui que use as the real owner of the estate; and at length that idea was carried into full effect by the 27 Hen. 8. c. 10. usually called the statute of uses, or, in conveyances and pleadings, the statute for transferring uses into possession. The hint seems to have been derived from what was done at the accession of King

Richard III.: who, having, when Duke of Gloucester, been frequently made a feoffee to uses, would upon the assumption of the crown (as the law was then understood) have been entitled to hold the land discharged of the use. But, to obviate so notorious an injustice, an act of parliament was immediately passed, which ordained, that, where he had been so enfeoffed jointly with other persons, the land should vest in the other feoffees, as if he had never been named, and that, where he stood solely enfeoffed, the estate itself should vest in cestui que use, in like manner as he had the use. 1 Rich. 3. c. 5. And so the statute of Henry VIII., after reciting the various inconveniences before mentioned, and many others, enacts, that " when any person shall be seised of lands, &c. to the use, confidence, or trust, of