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
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.
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.
sui generis - Real Time Justice
PRESIDENTS COUNCIL OF CAPITALIST PRINCIPALS
QUINTO EXACT- The fifth and last call
Wait 'till my American lawyers hear about this!
Emphatically saying what the law is, terminating the national emergency;
reforming legislation, abolishing holistic accounting & jurisprudence.
ANCIENT DEMESNE OF THE COLLEGE OF THE HUMMINGBIRD
takes possession without institution or induction. 2 Rol. Abr. 356.
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.
"their experience, practical sense, and industrious habits,
bringing the code into something like shape"."It has been said that if three Americans meet to talk over an item of business, the first thing they do is to organize."
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.
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.).
ABOLISH EPA-CERCLA-SUPERFUND: EX POST FACTO; BILL OF ATTAINDER; CRIME OF INFAMY
He is no longer a national, but “hostis humani generis” and as such he is justiciable by any State anywhere:
Grotius (1583-1645) “De Jure Belli ac Pacis,” vol. 2, cap. 20, § 40. OUTLAWRY
By the common law it was not larceny in any servant to run away with the goods committed him to keep, but only a breach of civil trust. 4 Comm. c. 17. p. 230. But if the servant had not the possession, but only the care and oversight of the goods, as the butler of the plate, the shepherd of the sheep, and the like, the embezzling of them was felony, even at the common law. 1 Hal. P. C. 506. And it seems that now the judges, in every case, determine that the property of the master, delivered by him into the custody of the servant, still remains in the possession of the master; and if it is embezzled by the servant, or converted to his use, he is guilty of felony. And when servants are convicted of robbing their masters, as the security of families so much depends on their honesty, and as the violation of the confidence reposed in them is a high aggravation of the crime, they are always punished with the utmost rigour which the law admits. 4 Comm. c. 17. p. 230. n.
Getting the process right
Quod Persona Nec Prebendarii, &c. A writ which lay for spiritual persons who were distrained in their spiritual possessions, for payment of a fifteenth with the rest of the parish. F. N. B. 176.
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
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:
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
Entity Number Date Filed Status Entity Name Agent for Service of Process 200035010105 11/29/2000 ACTIVE LIGHTHORSE VENTURES, LLC STEPHEN LOPEZ
Entity Name: LIGHTHORSE VENTURES, LLC Entity Number: 200035010105 Date Filed: 11/29/2000 Status: ACTIVE Jurisdiction: CALIFORNIA Entity Address: 1600 S MAIN ST STE 325 Entity City, State, Zip: WALNUT CREEK CA 94596 Agent for Service of Process: STEPHEN LOPEZ Agent Address: 1600 S MAIN ST STE 325 Agent City, State, Zip: WALNUT CREEK CA 94596 SOLICITOR OF WILLIAM LOGAN OF LOGAN & GILES, LIGHTHORSE VENTURES LLC PAID RETAINER OF $140,000 FOR T.W. ARMAN
PETITION FOR CLASS ACTION FAIRNESS ACT CERTIFICATION
Stephen Bernard Lopez - #122927
Current Status: Resigned with Charges Pending
This member is resigned and may not practice law in California.
See below for more details.
Profile Information
Bar Number 122927 Address 3700 Mosswood Dr
Lafayette, CA 94549Phone Number (925) 284-5144 Fax Number (925) 284-1574 skmu@bcbe . edu wkty@rfhlne . gov cjca@jiosiat . net fjjc@cmu . com jjpeispek@pooljysp . com njyfolskr@mmfogmb . edu qifhudyrb@ijtse . com uilidtcaj@ehly . com biskkmfhq@aec . com eiblqfjna@tcrgwra . net ihinyumu@nqaij . gov mhopfnpd@imuynr . gov phwqlgtk@disoqpkq . edu tgessyyr@wepf . gov agltbpda@qbntbl . org sblopez@pacbell . net hgaynajn@gqic . net lfhbtqn@mbmgrlef . gov ofncdjq@uti . com sfuejbt@eofby . gov District District 3 Undergraduate School Univ of California Berkeley; Berkeley CA County Contra Costa Law School Stanford Univ Law School; Stanford CA Sections None Status History
Effective Date Status Change Present Resigned 2/15/2004 Resigned 12/11/2003 Not Eligible To Practice Law 1/1/1993 Active 1/1/1992 Inactive 6/10/1986 Admitted to The State Bar of California Actions Affecting Eligibility to Practice Law
Effective Date Description Case Number Resulting Status Disciplinary and Related Actions 2/15/2004 Resignation with charges pending 03-Q-04801 Resigned 12/11/2003 Vol.inactive(tender of resign.w/charges) 03-Q-04801 Not Eligible To Practice Law Administrative Actions This member has no public record of administrative actions.
Copies of official attorney discipline records are available upon request .
LIGHTHORSE VENTURES LLC ET AL DEFENDANT HUTCHENS VS LIGHTHORSE VENTURES LLC ET AL FRAUD CIVMSC07-00955 05/04/2007
Viewed Date Action Text Disposition Image 11/04/2010 9:00 AM DEPT. 02 HEARING ON OSC RE: ATTORNEY JEREMIAH LEAHY FAILURE TO APPEAR IN COURT ON 09/02/2010 IN DEPARTMENT TWO - Minutes 11/04/2010 9:00 AM DEPT. 02 SPECIAL SET HEARING ON: DEFAULT PROVE-UP HEARING SET BY DEPT TWO - Minutes 09/03/2010 ORDER TO SHOW CAUSE FILED Not Applicable N/A 09/02/2010 9:00 AM DEPT. 02 SPECIAL SET HEARING ON: DEFAULT PROVE-UP HEARING SET BY DEPT TWO - Minutes Complete 08/27/2010 9:30 AM DEPT. 02 SPECIAL SET HEARING ON: DEFAULT PROVE-UP HEARING SET BY DEPT TWO - Minutes Complete 07/28/2010 STATEMENT OF FACTS AND ISSUES (DEFENDANT) FILED Not Applicable N/A 07/28/2010 11:00 AM DEPT. 02 COURT TRIAL - LONG CAUSE/ 3 DAY(S) - Minutes COMPLETED 07/26/2010 9:05 AM DEPT. 02 COURT TRIAL - LONG CAUSE/ 3 DAY(S) - Minutes NOT HEARD/CONT 04/01/2010 9:00 AM DEPT. 02 SPECIAL SET HEARING ON: TRIAL SETTING CONFERENCE SET BY COURT - Minutes COMPLETED 02/01/2010 9:00 AM DEPT. 02 JURY TRIAL - LONG CAUSE/ 6 DAY(S) VACATED 01/21/2010 9:00 AM DEPT. 02 HEARING ON OSC RE: FAILURE TO APPEAR BY JEREMIAH LEAHY, COUNSEL FOR PLAINTIFF @ ISSUE CONF. HELD 12/18/09 - Minutes COMPLETED 12/18/2009 3:00 PM DEPT. 02 ISSUE CONFERENCE - Minutes COMPLETED 11/13/2009 4:00 PM DEPT. 02 ISSUE CONFERENCE - Minutes NOT HEARD/CONT 09/01/2009 9:00 AM DEPT. 02 JURY TRIAL - LONG CAUSE/ 6 DAY(S) - Minutes NOT HEARD/CONT 08/14/2009 4:00 PM DEPT. 02 ISSUE CONFERENCE - Minutes NOT HEARD/CONT 07/01/2009 9:00 AM DEPT. 02 HEARING ON MOTION TO/FOR SET ASIDE THE DEFAULT OF PAUL HOFFMAN FILED BY PAUL HOFFMAN - Minutes DENIED 06/12/2009 MOTION TO/FOR SET ASIDE DEFAULT FILED BY PAUL HOFFMAN 06/12/2009 RETURN CHECK FEE PAID BY PAUL HOFFMAN FOR CHECK RETURNED FOR MOT TO SET ASIDE DEFAULT Not Applicable 06/10/2009 9:00 AM DEPT. 02 HEARING ON MOTION TO/FOR SET ASIDE THE DEFAULT OF PAUL HOFFMAN FILED BY PAUL HOFFMAN - Minutes Complete 06/08/2009 9:00 AM DEPT. 02 JURY TRIAL - LONG CAUSE/ 6 DAY(S) - Minutes NOT HEARD/CONT 06/04/2009 CORRESPONDENCE MEMO RE: MONEY ORDER FOR RETURNED CHECK Not Applicable 05/18/2009 THE FILING OF YOUR PAPERS WILL BE VOID FOR ALL PURPOSES Not Applicable 05/18/2009 CLERK'S TICKLER TO CHECK FOR PAYMENT OF RETURNED CHECK WAS SET FOR 6/18/09 AT 7:00 IN DEPT. FIS 05/18/2009 IF THE FEES HAVE NOT BEEN PAID BY 06/18/09 Not Applicable 05/18/2009 PLEASE RETURN THIS NOTICE WITH YOUR PAYMENT OF $65.00 Not Applicable 05/18/2009 YOUR CHECK AS DESCRIBED BELOW HAS BEEN RETURNED UN-PAID BY YOUR BANK FOR THE FOLLOWING REASON: NOT SUFFICIENT FUNDS Not Applicable 05/18/2009 WALNUT CREEK, CA 94596-8812 Not Applicable 05/18/2009 1600 S. MAIN ST. STE. 325 Not Applicable 05/18/2009 PAUL HOFFMAN Not Applicable 05/18/2009 ** VOID ** GC 70617(A) MOTION FEE Not Applicable 05/15/2009 9:00 AM DEPT. 02 ISSUE CONFERENCE - Minutes NOT HEARD/CONT 05/04/2009 MEMORANDUM OF POINTS AND AUTHORITIES FILED BY PAUL HOFFMAN IN SUPPORT OF MOTION TO SET ASIDE DEFAULT Not Applicable N/A 05/04/2009 DECLARATION OF PAUL HOFFMAN FILED RE: IN SUPPORT OF MTN TO SET ASIDE DEFAULT Not Applicable N/A 05/04/2009 DECLARATION OF DONALD TENCONI FILED RE: IN SUPPORT OF MTN TO SET ASIDE DEFAULT OF HAOFFMAN Not Applicable N/A 05/04/2009 PROOF OF SERVICE BY MAIL OF NTC OF MTN TO SET ASIDE DEFAULT OF HOFFMAN ON [SEE LIST] FILED; SERVED ON 04/24/09 Not Applicable N/A 05/04/2009 MOTION TO/FOR SET ASIDE DEFAULT FILED BY PAUL HOFFMAN 05/04/2009 HEARING ON MOTION WAS SET FOR 6/10/09 AT 9:00 IN DEPT. 02 03/06/2009 DEFENDANT LIGHTHORSE VENTURESLLC ET AL, STEPHEN B LOPEZ, NORTHSTAR LAND COMPANY LLC ADDS ATTORNEY PRO/PER Not Applicable 03/06/2009 JAMES SMITH REMOVED AS AN ATTORNEY ON THIS CASE Not Applicable 03/06/2009 DISCHARGE OF ATTORNEY AS TO LIGHTHORSE VENTURES LLC, NORTHSTAR LAND CO, LLC & STEPHEN LOPEZ Not Applicable N/A 03/04/2009 (U.J.) ANSWER TO 2ND AMENDED COMPLAINT OF JOHN HUTCHENS FILED BY LIGHTHORSE VENTURESLLC ET AL, STEPHEN B LOPEZ Not Applicable N/A 03/04/2009 STIPULATION TO SET ASIDE DEFAULT OF LIGHTHORSE AND STEPHAN LOP FILED Not Applicable 02/26/2009 CLERK'S CERTIFICATE OF MAILING OF UNREPORTED MINUTE ORDER FILED 2/26/09 SENT TO ALL PARTIES Not Applicable 02/26/2009 UNREPORTED MINUTE ORDER FILED RE: CONTINUANCE OF ISSUE CONFERENCE AND TRIAL DATES Not Applicable N/A 02/10/2009 STIP & ORDER TO SET ASIDE DEFAULT SEND TO D-2 FOR SIGNATURE Not Applicable N/A 01/13/2009 MEDIATOR'S REPORT RECEIVED: DID NOT TAKE PLACE SCHEDULED ON 12/01/08, MEDIATOR TIME SPENT 0 HOURS Not Applicable 01/09/2009 DEFAULT ENTERED ON THE 2ND AMENDED COMPLAINT OF JOHN HUTCHENS AGAINST DEFENDANT LIGHTHORSE VENTURESLLC ET AL, PAUL HOFFMAN, STEPHEN B LOPEZ BY CLERK AS REQUESTED Not Applicable N/A 01/09/2009 REQUEST TO ENTER DEFAULT ON 2ND AMENDED COMPLAINT OF JOHN HUTCHENS FILED AS TO LIGHTHORSE VENTURESLLC ET AL, PAUL HOFFMAN, STEPHEN B LOPEZ Not Applicable N/A 01/09/2009 PROOF OF SERVICE BY MAIL FILED ON 2ND AMENDED COMPLAINT OF JOHN HUTCHENS AS TO LIGHTHORSE VENTURESLLC ET AL, PAUL HOFFMAN, STEPHEN B LOPEZ WITH MAILING DATE OF 10/23/08 Not Applicable N/A 01/08/2009 NOTICE OF/TO CHANGE OF ADDRESS FILED ON BEHALF OF JOHN F HUTCHENS, JEFFREY L HEATON Not Applicable N/A
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 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.
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 - AppelleeJoan 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 95814STATE OF CALIFORNIA
Plaintiff - AppelleeMargarita 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 94244-2550WILLIAM A. LOGAN, JR.
AppellantWilliam A. Logan, Jr.
Direct: 925-945-6792
[NTC Pro Se]
Logan & Giles LLP
2175 N. California Blvd.
Suite 310
Walnut Creek, CA 94596LOGAN & GILES LLP
AppellantWilliam A. Logan, Jr.
Direct: 925-945-6792
[COR LD NTC Retained]
Logan & Giles LLP
2175 N. California Blvd.
Suite 310
Walnut Creek, CA 94596v.
IRON MOUNTAIN MINES
DefendantRHONE-POULNEC BASIC CHEMICALS COMPANY
DefendantBAYER CROPSCIENCE, INC., FKA Aventis CropScience USA, Inc.
DefendantT. W. ARMAN
Defendant - AppellantWilliam 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 KBDOCKETED 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 KBFiled 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 KBFiled 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 KBFiled (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 KBFiled (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 MBFiled 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 KBReceived from John F. Hutchens' notice regarding absolute & immediate injunctive relief. [7249887] (EL) 03/08/2010 9
2 pg, 137.21 KBReceived from John Hutchens' Breve Soke, served on 03/05/2010 [7256642] (EL) 03/11/2010 10
2 pg, 28.89 KBFiled 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 KBFiled 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 KBSubmitted (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 KBFiled 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 KBFiled (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 KBSubmitted (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 KBFiled 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 KBSubmitted (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 KBFiled 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) LOGAN & GILES RETAINED BY STEPHEN LOPEZ AND LIGHTHORSE VENTURES LLC TO DEFEND TED ARMAN AND IRON MOUNTAIN MINES, INC.
§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) .
Article 1, Section 9, Clause 2
Document 14
Ex parte Bollman & Swartwout
4 Cranch 75 1807Marshall , Ch. J. delivered the opinion of the court, as follows:
As preliminary to any investigation of the merits of this motion, this court deems it proper to declare that it disclaims all jurisdiction not given by the constitution, or by the laws of the United States.
Courts which originate in the common law possess a jurisdiction which must be regulated by their common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied. The reasoning from the bar, in relation to it, may be answered by the single observation, that for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law.
This opinion is not to be considered as abridging the power of courts over their own officers, or to protect themselves, and their members, from being disturbed in the exercise of their functions. It extends only to the power of taking cognizance of any question between individuals, or between the government and individuals.
To enable the court to decide on such question, the power to determine it must be given by written law.
The inquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this court.
The 14th section of the judicial act (Laws U. S. vol. 1. p. 58.) has been considered as containing a substantive grant of this power.
It is in these words: "That all the before mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs, not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment. Provided, that writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify."
The only doubt of which this section can be susceptible is, whether the restrictive words of the first sentence limit the power to the award of such writs of habeas corpus as are necessary to enable the courts of the United States to exercise their respective jurisdictions in some cause which they are capable of finally deciding.
It has been urged, that in strict grammatical construction, these words refer to the last antecedent, which is, "all other writs not specially provided for by statute."
This criticism may be correct, and is not entirely without its influence; but the sound construction which the court thinks it safer to adopt, is, that the true sense of the words is to be determined by the nature of the provision, and by the context.
It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared "that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it."
Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus .
It has been truly said, that this is a generic term, and includes every species of that writ. To this it may be added, that when used singly--when we say the writ of habeas corpus, without addition, we most generally mean that great writ which is now applied for; and in that sense it is used in the constitution.
The section proceeds to say, that "either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment."
It has been argued that congress could never intend to give a power of this kind to one of the judges of this court, which is refused to all of them when assembled.
There is certainly much force in this argument, and it receives additional strength from the consideration, that if the power be denied to this court, it is denied to every other court of the United States, the right to grant this important writ is given, in this sentence, to every judge of the circuit, or district court, but can neither be exercised by the circuit nor district court. It would be strange if the judge, sitting on the bench, should be unable to hear a motion for this writ where it might be openly made, and openly discussed, and might yet retire to his chamber, and in private receive and decide upon the motion. This is not consistent with the genius of our legislation, nor with the course of our judicial proceedings. It would be much more consonant with both, that the power of the judge at his chambers should be suspended during his term, than that it should be exercised only in secret.
Whatever motives might induce the legislature to withhold from the supreme court the power to award the great writ of habeas corpus, there could be none which would induce them to withhold it from every court in the United States: and as it is granted to all in the same sentence and by the same words, the sound construction would seem to be, that the first sentence vests this power in all the courts of the United States; but as those courts are not always in session, the second sentence vests it in every justice or judge of the United States.
The doubt which has been raised on this subject may be further explained by examining the character of the various writs of habeas corpus, and selecting those to which this general grant of power must be restricted, if taken in the limited sense of being merely used to enable the court to exercise its jurisdiction in causes which it is enabled to decide finally.
The various writs of habeas corpus, as stated and accurately defined by judge Blackstone, (3 Bl. Com. 129.) are, 1st. The writ of habeas corpus ad respondendum, "when a man hath a cause of action against one who is confined by the process of some inferior court; in order to remove the prisoner and charge him with this new action in the court above."
This case may occur when a party having a right to sue in this court, (as a state at the time of the passage of this act, or a foreign minister,) wishes to institute a suit against a person who is already confined by the process of an inferior court. This confinement may be either by the process of a court of the United States, or of a state court. If it be in a court of the United States, this writ would be inapplicable, because perfectly useless, and consequently could not be contemplated by the legislature. It would not be required, in such case, to bring the body of the defendant actually into court, as he would already be in the charge of the person who, under an original writ from this court, would be directed to take him into custody, and would already be confined in the same jail in which he would be confined under the process of this court, if he should be unable to give bail.
If the party should be confined by process from a state court, there are many additional reasons against the use of this writ in such a case.
The state courts are not, in any sense of the word, inferior courts, except in the particular cases in which an appeal lies from their judgment to this court; and in these cases the mode of proceeding is particularly prescribed, and is not by habeas corpus . They are not inferior courts because they emanate from a different authority, and are the creatures of a distinct government.
2d. The writ of habeas corpus ad satisfaciendum, "when a prisoner hath had judgment against him in an action, and the plaintiff is desirous to bring him up to some superior court to charge him with process of execution."
This case can never occur in the courts of the United States. One court never awards execution on the judgment of another. Our whole juridical system forbids it.
3d. Ad prosequendum, testificandum, deliberandum, &c. "which issue when it is necessary to remove a prisoner, in order to prosecute, or bear testimony, in any court, or to be tried in the proper jurisdiction wherein the fact was committed."
This writ might unquestionably be employed to bring up a prisoner to bear testimony in a court, consistently with the most limited construction of the words in the act of congress; but the power to bring a person up that he may be tried in the proper jurisdiction is understood to be the very question now before the court.
4th, and last. The common writ ad faciendum et recipiendum, "which issues out of any of the courts of Westminster-hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the superior court, commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer, (whence the writ is frequently denominated an habeas corpus cum causa, ) to do and receive whatever the king's court shall consider in that behalf. This writ is grantable of common right, without any motion in court, and it instantly supersedes all proceedings in the court below."
Can a solemn grant of power to a court to award a writ be considered as applicable to a case in which that writ, if issuable at all, issues by law without the leave of the court?
It would not be difficult to demonstrate that the writ of habeas corpus cum causa cannot be the particular writ contemplated by the legislature in the section under consideration; but it will be sufficient to observe generally that the same act prescribes a different mode for bringing into the courts of the United States suits brought in a state court against a person having a right to claim the jurisdiction of the courts of the United States. He may, on his first appearance, file his petition and authenticate the fact, upon which the cause is ipso facto removed into the courts of the United States.
The only power then, which on this limited construction would be granted by the section under consideration, would be that of issuing writs of habeas corpus ad testificandum . The section itself proves that this was not the intention of the legislature. It concludes with the following proviso, "That writs of habeas corpus shall in no case extend to prisoners in jail, unless where they are in custody under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify."
This proviso extends to the whole section. It limits the powers previously granted to the courts, because it specifies a case in which it is particularly applicable to the use of the power by courts:--where the person is necessary to be brought into court to testify. That construction cannot be a fair one which would make the legislature except from the operation of a proviso, limiting the express grant of a power, the whole power intended to be granted.
From this review of the extent of the power of awarding writs of habeas corpus, if the section be construed in its restricted sense; from a comparison of the nature of the writ which the courts of the United States would, on that view of the subject, be enabled to issue; from a comparison of the power so granted with the other parts of the section, it is apparent that this limited sense of the term cannot be that which was contemplated by the legislature.
But the 33d section throws much light upon this question. It contains these words: "And upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death; in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence, and of the usages of law."
The appropriate process of bringing up a prisoner, not committed by the court itself, to be bailed, is by the writ now applied for. Of consequence, a court possessing the power to bail prisoners not committed by itself, may award a writ of habeas corpus for the exercise of that power. The clause under consideration obviously proceeds on the supposition that this power was previously given, and is explanatory of the 14th section.
If, by the sound construction of the act of congress, the power to award writs of habeas corpus in order to examine into the cause of commitment is given to this court, it remains to inquire whether this be a case in which the writ ought to be granted.
The only objection is, that the commitment has been made by a court having power to commit and to bail.
Against this objection the argument from the bar has been so conclusive that nothing can be added to it.
If then this were res integra, the court would decide in favour of the motion. But the question is considered as long since decided. The case of Hamilton is expressly in point in all its parts; and although the question of jurisdiction was not made at the bar, the case was several days under advisement, and this question could not have escaped the attention of the court. From that decision the court would not lightly depart. ( United States v. Hamilton, 3 Dall. 17.)
If the act of congress gives this court the power to award a writ of habeas corpus in the present case, it remains to inquire whether that act be compatible with the constitution.
In the mandamus case, ( ante, vol. 1. p. 175. Marbury v. Madison, ) it was decided that this court would not exercise original jurisdiction except so far as that jurisdiction was given by the constitution. But so far as that case has distinguished between original and appellate jurisdiction, that which the court is now asked to exercise is clearly appellate . It is the revision of a decision of an inferior court, by which a citizen has been committed to jail.
It has been demonstrated at the bar, that the question brought forward on a habeas corpus, is always distinct from that which is involved in the cause itself. The question whether the individual shall be imprisoned is always distinct from the question whether he shall be convicted or acquitted of the charge on which he is to be tried, and therefore these questions are separated, and may be decided in different courts.
The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature.
But this point also is decided in Hamilton's case and in Burford's case.
If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so.
That question depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws.
The motion, therefore, must be granted.
Johnson , J. In this case I have the misfortune to dissent from the majority of my brethren. As it is a case of much interest, I feel it incumbent upon me to assign the reasons upon which I adopt the opinion, that this court has not authority to issue the writ of habeas corpus now moved for. The prisoners are in confinement under a commitment ordered by the superior court of the district of Columbia, upon a charge of high treason. This motion has for its object their discharge or admission to bail, under an order of this court, as circumstances upon investigation shall appear to require. The attorney general having submitted the case without opposition, I will briefly notice such objections as occur to my mind against the arguments urged by the counsel for the prisoners.
Two questions were presented to the consideration of the court.
1st. Does this court possess the power generally of issuing the writ of habeas corpus?
2d. Does it retain that power in this case after the commitment by the district court of Columbia?
In support of the affirmative of the first of these questions, two grounds were assumed.
1st. That the power to issue this writ was necessarily incident to this court, as the supreme tribunal of the union.
2dly. That it is given by statute, and the right to it has been recognized by precedent.
On the first of these questions it is not necessary to ponder long; this court has uniformly maintained that it possesses no other jurisdiction or power than what is given it by the constitution and laws of the United States, or is necessarily incident to the exercise of those expressly given.
Our decision must then rest wholly on the due construction of the constitution and laws of the union, and the effect of precedent, a subject which certainly presents much scope for close legal inquiry, but very little for the play of a chastened imagination.
The first section of the third article of the constitution vests the judicial power of the United States in one supreme court, and in such inferior courts as the congress may from time to time establish. The second section declares the extent of that power, and distinguishes its jurisdiction into original and appellate.
The original jurisdiction of this court is restricted to cases affecting ambassadors or other public ministers, and consuls, and those in which a state shall be a party. In all other cases within the judicial powers of the union, it can exercise only an appellate jurisdiction. The former it possesses independently of the will of any other constituent branch of the general government. Without a violation of the constitution, that division of our jurisdiction can neither be restricted or extended. In the latter its powers are subjected to the will of the legislature of the union, and it can exercise appellate jurisdiction in no case, unless expressly authorised to do so by the laws of congress. If I understand the case of Marbury v. Madison, it maintains this doctrine in its full extent. I cannot see how it could ever have been controverted.
It is incumbent, then, I presume, on the counsel, in order to maintain their motion, to prove that the issuing of this writ is an act within the power of this court in its original jurisdiction, or that, in its appellate capacity, the power is expressly given by the laws of congress.
This it is attempted to do, by the fourteenth and thirty-third sections of the judiciary act, and the cases of Hamilton and Burford, which occurred in this court, the former in 1795, the latter in 1806.
How far their position is supported by that act and those cases, will now be the subject of my inquiry.
With a very unnecessary display of energy and pathos, this court has been imperatively called upon to extend to the prisoners the benefit of precedent. I am far, very far, from denying the general authority of adjudications. Uniformity in decisions is often as important as their abstract justice. But I deny that a court is precluded from the right or exempted from the necessity of examining into the correctness or consistency of its own decisions, or those of any other tribunal. If I need precedent to support me in this doctrine, I will cite the example of this court, which, in the case of the United States v. Moore, February, 1805, acknowledged that in the case of the United States v. Sims, February, 1803, it had exercised a jurisdiction it did not possess. Strange indeed would be the doctrine, that an inadvertency once committed by a court shall ever after impose on it the necessity of persisting in its error. A case that cannot be tested by principle is not law, and in a thousand instances have such cases been declared so by courts of justice.
The claim of the prisoners, as founded on precedent, stands thus. The case of Hamilton was strikingly similar to the present. The prisoner had been committed by order of the district judge on a charge of high treason. A writ of habeas corpus was issued by the supreme court, and the prisoner bailed by their order. The case of Burford was also strictly parallel to the present; but the writ in the latter case having been issued expressly on the authority of the former, it is presumed that it gives no additional force to the claim of the prisoners, but must rest on the strength of the case upon which the court acted.
It appears to my mind that the case of Hamilton bears upon the face of it evidence of its being entitled to little consideration, and that the authority of it was annihilated by the very able decision in Marbury v. Madison . In this case it was decided that congress could not vest in the supreme court any original powers beyond those to which this court is restricted by the constitution. That an act of congress vesting in this court the power to issue a writ of mandamus in a case not within their original jurisdiction, and in which they were not called upon to exercise an appellate jurisdiction, was unconstitutional and void. In the case of Hamilton the court does not assign the reasons on which it founds its decisions, but it is fair to presume that they adopted the idea which appears to have been admitted by the district attorney in his argument, to wit, that this court possessed a concurrent power with the district court in admitting to bail. Now a concurrent power in such a case must be an original power, and the principle in Marbury v. Madison applies as much to the issuing of a habeas corpus in a case of treason, as to the issuing of a mandamus in a case not more remote from the original jurisdiction of this court. Having thus disembarrassed the question from the effect of precedent, I proceed to consider the construction of the two sections of the judiciary act above referred to.
It is necessary to premise that the case of treason is one in which this court possesses neither original nor appellate jurisdiction. The 14th section of the judiciary act, so far as it has relation to this case, is in these words:--"All the beforementioned courts (of which this is one) of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law." I do not think it material to the opinion I entertain what construction is given to this sentence. If the power to issue the writs of scire facias and habeas corpus be not restricted to the cases within the original or appellate jurisdiction of this court, the case of Marbury and Madison rejects the clauses as unavailing; and if it relate only to cases within their jurisdiction, it does not extend to the case which is now moved for. But it is impossible to give a sensible construction to that clause without taking the whole together; it consists of but one sentence, intimately connected throughout, and has for its object the creation of those powers which probably would have vested in the respective courts without statutory provision, as incident to the exercise of their jurisdiction. To give to this clause the construction contended for by counsel, would be to suppose that the legislature would commit the absurd act of granting the power of issuing the writs of scire facias and habeas corpus, without an object or end to be answered by them. This idea is not a little supported by the next succeeding clause, in which a power is vested in the individual judges to issue the writ of habeas corpus, expressly for the purpose of inquiring into the cause of commitment. That part of the thirty-third section of the judiciary act which relates to this subject is in the following words:--"And upon all arrests in criminal cases, bail shall be admitted, except where the punishment is death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence, and usage of law."
On considering this act it cannot be denied that if it vests any power at all, it is an original power. "It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted." I quote the words of the court in the case of Marbury v. Madison .
And so far is this clause from giving a power to revise and correct, that it actually vests in the district judge the same latitude of discretion by the same words that it communicates to this court. And without derogating from a respectability which I must feel as deep an interest in maintaining as any member of this court, I must believe that the district court, or any individual district judge, possesses the same power to revise our decision, that we do to revise theirs; nay, more, for the powers with which they may be vested are not so particularly limited and divided by the constitution as ours are. Should we perform an act which according to our own principle we cannot be vested with power to perform, what obligation would any other court or judge be under to respect that act? There is one mode of construing this clause, which appears to me to remove all ambiguity, and to render every part of it sensible and operative. By the consent of his sovereign, a foreign minister may be subjected to the laws of the state near which he resides. This court may then be called upon to exercise an original criminal jurisdiction. If the power of this court to bail be confined to that one case, reddendo singula singulis, if the power of the several courts and individual judges be referred to their respective jurisdictions, all clashing and interference of power ceases, and sufficient means of redress are still held out to the citizen, if deprived of his liberty; and this surely must have been the intention of the legislature. It never could have been contemplated that the mandates of this court should be borne to the extremities of the states, to convene before them every prisoner who may be committed under the authority of the general government. Let it be remembered that I am not disputing the power of the individual judges who compose this court to issue the writ of habeas corpus . This application is not made to us as at chambers, but to us as holding the supreme court of the United States--a creature of the constitution, and possessing no greater capacity to receive jurisdiction or power than the constitution gives it. We may in our individual capacities, or in our circuits courts, be susceptible of powers merely ministerial, and not inconsistent with out judicial characters, for on that point the constitution has left much to construction; and on such an application the only doubt that could be entertained would be, whether we can exercise any power beyond the limits of our respective circuits. On this question I will not now give an opinion. One more observation, and I dismiss the subject.
In the case of Burford I was one of the members who constituted the court. I owe it to my own consistency to declare that the court were then apprized of my objections to the issuing of the writ of habeas corpus . I did not then comment at large on the reasons which influenced my opinion, and the cause was this: The gentleman who argued that cause confined himself strictly to those considerations which ought alone to influence the decisions of this court. No popular observations on the necessity of protecting the citizen from executive oppression, no animated address calculated to enlist the passions or prejudices of an audience in defence of his motion, imposed on me the necessity of vindicating my opinion. I submitted in silent deference to the decision of my brethren.
In this case I feel myself much relieved from the painful sensation resulting from the necessity of dissenting from the majority of the court, in being supported by the opinion of one of my brethren, who is prevented by indisposition from attending.
The Founders' Constitution
Volume 3, Article 1, Section 9, Clause 2, Document 14
http://press-pubs.uchicago.edu/founders/documents/a1_9_2s14.html
The University of Chicago PressThe Judiciary Act of 1789
An Act to establish the Judicial Courts of the United States
SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled , That the supreme court of the United States shall consist of a chief justice and five associate justices, any four of whom shall be a quorum, and shall hold annually at the seat of government two sessions, the one commencing the first Monday of February, and the other the first Monday of August. That the associate justices shall have precedence according to the date of their commissions, or when the commissions of two or more of them bear date on the same day, according to their respective ages.
[Sec. 2. division of the United States into thirteen districts, for all practical purposes coincident with the boundaries of individual states
Sec. 3. provision for the holding of district courts by a single District Judge at particular places and times and for the keeping of records.
Sec. 4. grouping of the districts into three circuits, with a provision for the circuit court twice a year consisting of two supreme court justices and a district judge, providing against a district judge voting in an appeal from his own decision at district court level.
Sec. 5. provision for times and places for holding the circuit courts.
Sec. 6. provision for adjournments in the supreme court and in circuit and district courts.
Sec. 7. provision for clerks of the various federal courts, and their oath.]
Sec. 8. And be it further enacted, That the justices of the Supreme Court, and the district judges, before they proceed to execute the duties of their respective offices, shall take the following oath or affirmation, to wit: "I, A.B., do solemnly swear or affirm, that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as _____, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States. So help me God."
Sec. 9. An be it further enacted, That the district courts shall have, exclusively of the courts of the several States, cognizance of all crimes and offences that shall be committed within their respective districts, or upon the high seas; where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted; and shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; and shall also have exclusive cognizance of all seizures on land, or other waters than as aforesaid, made, and of all suits for penalties and forfeitures incurred, under the laws of the United States. And shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States. And shall also have cognizance, concurrent as last mentioned, of all suits at common law where the United States sue, and the matter in dispute amounts, exclusive of costs to the sum or value of one hundred dollars. And shall also have jurisdiction exclusively of the courts of the several States, of all suits against consuls or vice-consuls, except for offences above the description aforesaid. And the trial of issues in fact, in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury.
Sec. 10. special provisions for the district courts of Kentucky and Maine.
Sec. 11. And be it further enacted , That the circuit courts shall have original cognizance, concurrent with the courts of the several States, to all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of cost, the sum or value of five hundred dollars, and the United States are plaintiffs, or petitioners; or an alien is a party, or the suit is between a citizen of the State where the suit is brought, and citizen of another State. And shall have exclusive cognizance of all crimes and offences under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the district courts of the crimes and offences cognizable therein. But no person shall be arrested in one district for trial in another, in any civil action before a circuit or district court. And no civil suit shall be brought before either of said courts against an inhabitant of the United States, by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ, nor shall any district or circuit court have cognizance of any suit to recover the contents of any promissory note or other chose in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange. And the circuit courts shall also have appellate jurisdiction from the district courts under the regulations and restrictions herein also provided.
[Sec. 12. provision for removal of cases from state to federal courts in suits brought against aliens or against a citizen of a state different from that of the plaintiff and, in certain situations, where title to land is claimed from a grant of a state other than that of the parties.]
Sec. 13. And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus , in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.
Sec. 14. And be it further enacted, That all the before-mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of inquiry into the cause of commitment.-- Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.
[Sec. 15. provision for the power procure evidence.]
Sec. 16. And be it further enacted, That suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate and complete remedy may be had at law.
Sec. 17. And be it further enacted, That all the courts of the United States shall have power to grant new trials, in cases where there has been a trial by jury for reasons for which new trials have usually been granted in the courts of law; and shall have power to impose and administer all necessary oaths or affirmations, and to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same; and to make and establish all necessary rules for the orderly conducting business in the said courts, provided such rules are not repugnant to the laws of the United States.
[Sec. 18. process for granting new trials.]
Sec. 19. And be it further enacted, That it shall be the duty of circuit courts, in causes in equity and of admiralty and maritime jurisdiction, to cause the facts on which they found their sentence or decree, fully to appear upon the record either from the pleadings and decree itself, or a state of the case agreed by the parties, or their counsel, or if they disagree by a stating of the case by the court.
[Sec. 20. provisions making effective the jurisdiction floor of federal courts.]
[Sec. 21. provisions limiting appeals from district courts to matters in which the value exceeded three hundred dollars, exclusive of costs in matters of admiralty and maritime jurisdiction.
Sec. 22. similar but more generous right of appeal, and process for the appeal, in civil actions.
Sec. 23. process under a writ of error.
Sec. 24. process pursuant to a writ of error.]
Sec. 25. And be it further enacted, That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States,and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.
[Sec. 26. assessing degree of recovery in actions.
Sec. 27. appointment of a marshal in each district with one or more deputies in each district, together with their duties and the oath of office.
Sec. 28. special provisions relating to the marshal, as when he or his deputy shall be a party to a suit.]
Sec. 29. And be it further enacted, That in cases punishable with death, the trial shall be had in the county where the offence was committed, or where that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence. And jurors in all cases to serve in the courts of the United States shall be designated by lot or otherwise in each State respectively according to the mode of forming juries therein now practiced, so far as the laws of the same shall render such designation practicable by the courts or marshals of the United States; and the jurors shall have the same qualifications as are requisite for jurors by the laws of the State of which they are citizens, to serve in the highest courts of law of such State, and shall be returned as there shall be occasion for them, from such parts of the district from time to time as the court shall direct, so as shall be most favourable to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burthen the citizens of any part of the district with such services. And writs of venire facias when directed by the court shall issue from the clerk's office, and shall be served and returned by the marshal in his proper person, or by his deputy, or in case the marshal or his deputy is not an indifferent person, or is interested in the event of the cause, by such fit person as the court shall specially appoint for that purpose, to whom they shall administer an oath or affirmation that he will truly and impartially serve and return such writ. And when from challenges or otherwise there shall not be a jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court where such defect of jurors happen, return jurymen de talibus circumstantibus sufficient to complete the pannel; and when the marshal or his deputy are disqualified as aforesaid, jurors may be returned by such disinterested persons as the court shall appoint.
Sec. 30. And be it further enacted, That the mode of proof by oral testimony and examination of witnesses in open court shall be the same in all the courts of the United States, as well in the trial of causes of equity and of admiralty and maritime jurisdiction, as of actions at common law. provision for depositions in certain circumstances.
[Sec. 31. provision for situations in which a party shall die plea pending.
Sec. 32. provision for amending defects in form.]
Sec. 33. And be it further enacted, That for any crime or offence against the United States, the offender may, by any justice or judge of the United States, or by any justice of the peace, or other magistrate of any of the United States where he may be found agreeably to the usual mode of process against offenders in such state, and at the expense of the United States, be arrested, and imprisoned or bailed, as the case may be, for trial before such court of the United States as by this act has cognizance of the offence. process thereon, including provision for bail.
Sec. 34. And be it further enacted, That the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.
Sec. 35. And be it further enacted, That in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of such counsel or attornies at law as by the rules of the said courts respectively shall be permitted to manage and conduct causes therein. And there shall be appointed in each district a meet person learned in the law to act as attorney for the United States in such district, who shall be sworn or affirmed to the faithful execution of his office, whose duty it shall be to prosecute in such district all delinquents for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned, except before the supreme court in the district in which that court shall be holden. And he shall receive as a compensation for his services such fees as shall be taxed therefor in the respective courts before which the suits or prosecutions shall be. And there shall also be appointed a meet person, learned in the law, to act as attorney-general for the United States, who shall be sworn or affirmed to a faithful execution of his office; whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments, and shall receive such compensation for his services as shall by law be approved.
APPROVED, September 24, 1789.
These are also called proxies ; and it is said there are three sorts of procurations or proxies ; ratione visitationis, consueludinis et pacti; and that the first is of ecclesiastical cognizance, but the two last are triable at law. Hardr. 180. -PROCURATOR. One who hath a charge committed to him by any person ; in which general signification it hath been applied to a vicar or lieutenant, who acts instead of another : and we read of procurator regni, and procurator reipublicrt, which is a public magistrate ; also proxies of lords in parliament are in our law books called procuratores; the bishops are sometimes termed procuratores ecclesiarium;
and the advocates of religious houses, who were to solicit the interests and plead the causes of the societies, were denominated procuratores monaslerii; and from this word comes the common word proctor. It is likewise used for him who gathers the fruits of a benefice for another man ; and procuracy is used in 3 Rich. 2. c. 3. for the writing or instrument whereby he is authorized.
Procuratores Ecclesi.e Parochialis. The churchwardens, so called because they were to act as proxies and representatives of the church, for the true honour and interest of it. Paroch. Antiq. 562.
PROCURATORIUM. The procuratory or instrument by which any person or community did constitute or delegate their proctor or proctors to represent them in any judicial court or cause.
PROCURATORY OF RESIGNATION. A term in the law of Scotland, by which the vassal authorizes the fee to be returned to his superior, either to remain the property of the superior, in which case it is said to be a resignation ad remanentiam, or for the purpose of the superior's giving out the fee to a new vassal, or to the former vassal, and a new series of hoirs ; this is termed a resignation in favour. These are analogous to the surrenders of copyholds in England. See that title, and tit. Tenures.
PRODES HOMINES. A title often given in our old books to the barons of the realm, or other military tenants, who were summoned to the king's council; discreti etfideles (probi) homines, who, according to their prudence and knowledge, were to give their counsel and advice.
AIG Reports $2.4 Billion Net Loss Attributable to AIG for the Third Quarter of 2010 Driven by Restructuring-Related Charges; Continuing Insurance Operating Income Remains Stable
Press Release Source: American International Group, Inc. On Friday November 5, 2010, 7:23 am EDT
The net loss in the quarter is primarily attributable to the following:
- Restructuring-related charges of $4.5 billion, as follows:
- a $1.3 billion deferred tax asset (DTA) valuation allowance charge in connection with a net decrease in underlying asset values supporting the DTA,
- as previously disclosed, a $1.9 billion loss on the pending sale of American General Finance, Inc. (AGF), and
- as previously disclosed, a $1.3 billion goodwill impairment charge in connection with the pending sale of AIG Star Life Insurance Co., Ltd. (AIG Star) and AIG Edison Life Insurance Company (AIG Edison).
- $1.2 billion amortization of the prepaid commitment fee asset, including $762 million of net accelerated amortization expense resulting from a $4.6 billion repayment and reduction in the maximum credit available under the Federal Reserve Bank of New York (FRBNY) Credit Facility, primarily from International Lease Finance Corporation (ILFC)'s previously announced repayment of loans from AIG.
- $465 million in impairment charges on certain aircraft in ILFC's fleet, reflecting management's outlook related to the future recovery of the airline industry which resulted in lower estimated future lease rates, as well as impairments related to sales and potential sales of aircraft.
- Partially offsetting these charges is a $1.4 billion tax benefit related to a deferred tax valuation allowance release. Increases in deferred tax liabilities associated with components of other comprehensive income reduced the gross deferred tax asset, allowing for the release of a portion of the valuation allowance that had been previously established through a charge to earnings.
Third Quarter Results Per Diluted Share* (in millions, except per share data) 2010 2009 2010 2009 Net income (loss) attributable to AIG $ (2,395 ) $ 455 $ (17.62 ) $ 0.68 To compute adjusted net income (loss), add losses and deduct gains : Net realized capital losses, net of tax (464 ) (798 ) Net gain (loss) on sale of divested businesses, net of tax 4 (773 ) Non-qualifying derivative hedging gains, net of tax 121 335 Net income (loss) from discontinued operations, net of tax** (1,856 ) 68 Adjusted net income (loss) attributable to AIG $ (200 ) $ 1,623 $ (1.47 ) $ 2.42
* Computed based on net income (loss) available to common shareholders after attribution of net income (loss) to Series C preferred shareholder in periods with net income. ** Discontinued operations is comprised of American Life Insurance Company (ALICO), Nan Shan Life Insurance Company (Nan Shan), AGF, AIG Star and AIG Edison and includes a $1.2 billion after tax loss on the pending sale of AGF and a $946 million after tax goodwill impairment in connection with the pending sale of AIG Star and AIG Edison.
Recap of Third Quarter Results Comprising Adjusted Net Income Attributable to AIG (in millions) 2010 2009 Continuing insurance pre-tax operating income: General Insurance $ 1,072 $ 719 Domestic Life Insurance & Retirement Services 978 1,207 Sub-Total - Continuing Insurance 2,050 1,926 Financial Services (81 ) 1,238 Foreign Life Insurance & Retirement Services (principally AIA) 534 409 FRBNY interest and amortization* (1,319 ) (1,252 ) Noncontrolling nonvoting, callable, junior and senior preferred interests held by FRBNY (388 ) - Interest on third party debt (461 ) (510 ) Other 85 293 Income taxes (620 ) (481 ) Adjusted net income (loss) attributable to AIG $ (200 ) $ 1,623
* Includes $762 million of accelerated amortization resulting from a $4.6 billion reduction in the FRBNY Credit Facility balance, primarily utilizing proceeds from the settlement of ILFC debt. The U.S. federal income tax effects of current period activity are generally offset by changes in AIG's deferred tax asset valuation allowance due to limitations on AIG's ability to fully recognize income taxes; therefore all amounts in this press release are before income taxes, unless otherwise noted.
As a result of the announced sales of ALICO, AGF, AIG Star and AIG Edison, the results of these entities are reported as discontinued operations. In addition, although the previously announced sale of Nan Shan was not approved by regulatory authorities in Taiwan, AIG is pursuing other opportunities to divest Nan Shan and believes a sale will be completed within twelve months. Therefore, AIG continues to report Nan Shan as a discontinued operation. Comparative periods have been revised accordingly and these companies' results are not included in the Recap of Third Quarter Results table above.
Discontinued operations loss before income taxes totaled $2.5 billion, including the loss on the pending sale of AGF and the AIG Star and AIG Edison goodwill impairment charge discussed above, compared to income before taxes of $312 million in the comparable 2009 period.
AIG's continuing insurance operations earned $2.1 billion and $1.9 billion before tax in the third quarter of 2010 and the third quarter of 2009, respectively.
GENERAL INSURANCE
Chartis' third quarter 2010 operating income before net realized capital gains (losses) was $1.1 billion compared to $719 million in the third quarter of 2009. Results were primarily driven by an improvement in underwriting income. Third quarter 2010 results reflect the consolidation of Fuji Fire & Marine Insurance Company (“Fuji”) following the previously announced acquisition of a controlling stake in this publicly-traded Japanese insurance company.
The third quarter of 2010 combined ratio was 99.3 compared to 105.2 in the prior year period. The current period combined ratio, excluding catastrophe losses, was 98.4, compared to 104.5 in the prior year, a 6.1 point improvement. Chartis' accident year loss ratio improved 3.5 points as the prior year period included $200 million of losses related to worldwide financial credit crisis claims. Chartis' expense ratio improved by 1.5 points from the prior year period, to 28.2, reflecting the acquisition and consolidation of Fuji.
In the current quarter, Chartis recorded $208 million of adverse prior year development, net of reserve discount, compared to $246 million of adverse development in the prior year period. Included in the 2010 prior year development is $122 million, net of reserve discount, related to asbestos claims recorded during the current year and one large claim attributable to the 2007 California wildfires.
Worldwide net premiums written of $8.6 billion increased by 7 percent compared to the same period last year. Excluding Fuji, worldwide net premiums written declined by 4 percent as a result of challenging economic conditions impacting ratable exposures and a competitive property casualty market. Chartis continues to pursue risk management initiatives to manage its aggregate exposure to certain lines of business and remains price disciplined where market rates are unsatisfactory.
DOMESTIC LIFE INSURANCE & RETIREMENT SERVICES
SunAmerica Financial Group reported third quarter 2010 operating income before net realized capital gains (losses) of $978 million compared to $1.2 billion in the third quarter of 2009. The decrease reflected a decline in net investment income from partnerships and $94 million less income from the change in the fair value of the retained interest in Maiden Lane II, as well as higher deferred acquisition costs (DAC) and sales inducement amortization due to net realized capital gains of $20 million in the third quarter of 2010 compared to net realized capital losses of $1.4 billion in the third quarter of 2009. The improvement in realized gains (losses) results principally from lower other-than-temporary impairment charges and a decrease in derivative fair value losses on interest rate and foreign exchange derivatives, net of foreign exchange transactions.
Assets under management grew to $244.6 billion at September 30, 2010, a 7 percent increase compared to September 30, 2009, primarily due to positive equity market returns in the latter part of 2009 through September 2010 and a rally in the bond markets. Premiums, deposits, and other considerations totaled $4.4 billion, an increase of 2 percent compared to the third quarter of 2009, as group retirement products and individual variable annuities reported increases in sales. Individual variable annuity sales increased due to product enhancements, reinstatement of new sales activity at a number of key broker-dealers and increased wholesaler productivity. However, individual fixed annuity deposits decreased primarily due to the low interest rate environment in 2010.
Surrender rates have improved compared to the prior year for group retirement products, individual fixed annuities and individual variable annuities as surrenders have returned to more normal levels. Life insurance sales were significantly higher than in the third quarter of 2009, driven by higher term and private placement variable universal life sold through independent and career distribution. American General Life and Accident Insurance Company continues to recruit new agents and advisors while increasing distribution productivity.
FOREIGN LIFE INSURANCE & RETIREMENT SERVICES
Following the classification of ALICO, Nan Shan, AIG Star and AIG Edison as discontinued operations, AIG's remaining Foreign Life Insurance & Retirement Services operations are conducted through AIA and American International Reinsurance Company, Ltd. (AIRCO).
Foreign Life Insurance & Retirement Services, principally AIA, reported third quarter 2010 pre-tax operating income before net realized capital gains (losses) of $534 million compared to $409 million in the third quarter of 2009.
Premiums and other considerations increased in the third quarter 2010 to $2.6 billion, compared to $2.2 billion for the same period in 2009, due to the favorable effect of foreign exchange as well as higher in-force business as a result of improvement in persistency from Hong Kong, Singapore, Malaysia, Thailand and China.
On October 29, 2010, AIG completed an initial public offering of 8.08 billion shares of AIA for aggregate gross proceeds of approximately $20.51 billion. Upon completion of the initial public offering, AIG owned approximately 33 percent of AIA's outstanding shares.
FINANCIAL SERVICES
AIG's Financial Services subsidiaries engage in diversified activities including commercial aircraft and equipment leasing and capital markets, which are conducted through ILFC and AIG Financial Products Corp (AIGFP). Following the classification of AGF as a discontinued operation in the third quarter of 2010, AIG's remaining consumer finance businesses are now reported in AIG's Other Operations category as part of noncore businesses.
During the third quarter of 2010, AIG's Asset Management group undertook the management responsibilities for non-derivative assets and liabilities of the Capital Markets businesses of the Financial Services segment. These assets and liabilities are being managed on a spread basis, in concert with the Matched Investment Program. Accordingly, gains and losses related to these assets and liabilities, primarily consisting of credit valuation adjustment gains and losses, are reported in AIG's Other operations category as part of Asset Management – Direct Investment Business. Prior period amounts have been revised to conform with the current period presentation. Intercompany interest related to loans from AIG Funding, Inc. to AIGFP is no longer being allocated to Capital Markets from Other Operations. The remaining Capital Markets run-off derivatives business continues to be reported in the Financial Services segment as part of Capital Markets results.
Financial Services reported a third quarter 2010 operating loss before net realized gains (losses) and the effect of hedging activities that did not qualify for hedge accounting treatment of $81 million, compared to $1.2 billion of operating income during the third quarter of 2009, with Capital Markets operating earnings offset by losses in Aircraft Leasing.
Capital Markets, which continues the process of winding down AIGFP's businesses and portfolios, reported operating income of $148 million in the third quarter of 2010, compared to operating income of $891 million in the third quarter of 2009. Capital Markets reported unrealized market valuation gains related to its super senior credit default swap portfolio of $152 million in the third quarter of 2010 and unrealized market valuation gains of $959 million in the third quarter of 2009. Capital Markets was negatively affected by the net effect of changes in credit spreads on the valuation of derivatives of $63 million and $233 million for the third quarter of 2010 and 2009, respectively, primarily on interest rate and foreign exchange contracts.
Status of unwinding AIGFP:
- AIGFP reduced the notional amount of its derivative portfolio by 46 percent from $940.7 billion at December 31, 2009, to $505.8 billion at September 30, 2010, including $13.7 billion of intercompany derivatives and $87.8 billion of super senior credit default swap contracts.
- AIGFP reduced number of its outstanding trade positions by approximately 5,900, from approximately 16,100 at December 31, 2009 to approximately 10,200 at September 30, 2010. Included in the 10,200 trade positions are approximately 4,500 non-derivative asset and liability positions whose management was transferred to the Direct Investment business.
- Net collateral posted by AIGFP and the Direct Investment business declined from $15.9 billion at December 31, 2009 to $12.3 billion at September 30, 2010.
ILFC reported an operating loss of $218 million for the third quarter of 2010 compared to operating income of $365 million in the third quarter of 2009. During the third quarter of 2010, ILFC recorded asset impairment losses of $422 million on certain aircraft in its fleet, reflecting management's outlook related to the future recovery of the airline industry due to a decrease in demand for certain aircraft types, increased volatility in fuel costs and changes in other macroeconomic conditions which, when aggregated, resulted in lower estimated future lease rates. Additionally, ILFC recorded asset impairment losses of $22 million related to aircraft sales and $21 million related to potential aircraft sales. Increased interest expense and an increase in the provision for overhauls also contributed to the lower third quarter results. At September 30, 2010, ILFC had committed to purchase 115 new aircraft deliverable from 2011 through 2019, at an estimated aggregate purchase price of $13.5 billion, the majority of which is due after 2015, with $282 million payable through 2011.
OTHER OPERATIONS
United Guaranty Corporation (UGC), AIG's mortgage guaranty insurer, reported a pre-tax loss of $124 million for the third quarter of 2010, compared to a pre-tax loss of $461 million in the same period in 2009. The improvement reflects lower levels of newly reported delinquencies in first-lien and international products, higher mortgage cure rates on existing first-lien and international delinquent loans, higher rescission rates on first-lien claims and the recognition of stop loss limits on certain second-lien policies, partially offset by increased delinquencies in private student loans.
The Asset Management business results in the third quarter of 2010 included an operating loss before net realized capital gains (losses) of $27 million compared to a $233 million operating loss in the third quarter of 2009, as reduced impairment losses on investment properties were partially offset by increased unfavorable credit valuation adjustments in the Direct Investment business. In 2009, the Institutional Asset Management business incurred significant losses due to goodwill impairments and losses from consolidated warehouse investments that did not recur in 2010.
Interest expense and amortization on the FRBNY Credit Facility was $1.3 billion in the third quarter of 2010, essentially unchanged from the third quarter of 2009, reflecting a lower amount of periodic amortization offset by accelerated amortization resulting from a $4.6 billion reduction in the balance outstanding and the maximum credit available under the FRBNY Credit Facility, primarily utilizing proceeds from the settlement of ILFC debt.
The fair value of AIG's interest in Maiden Lane III increased $301 million during the third quarter, compared to an increase of $1.2 billion in the prior year quarter.
Unallocated corporate expenses of $239 million in the quarter increased from $128 million in the prior year period, primarily reflecting a litigation provision in connection with a workers' compensation matter.
At September 30, 2010, total equity was $108.7 billion, a $10.6 billion increase from $98.1 billion at December 31, 2009.
Nine Months Ended September 30, 2010 Results Per Diluted Share* (in millions, except per share data) 2010 2009 2010 2009 Net loss attributable to AIG $ (3,268 ) $ (2,076 ) $ (4.88 ) $ (24.92 ) To compute adjusted net loss, add losses and deduct gains : Net realized capital losses, net of tax (1,177 ) (3,590 ) Net gain (loss) on sale of divested businesses, net of tax 21 (928 ) Fuji bargain purchase gain, net of tax 332 - Non-qualifying derivative hedging gain (loss), net of tax (88 ) 923 Net income (loss) from discontinued operations, net of tax** (4,364 ) 967 Adjusted net income attributable to AIG $ 2,008 $ 552 $ 2.99 $ 0.82
* Computed based on net income (loss) available to common shareholders after attribution of net income (loss) to Series C preferred shareholder in periods with net income. ** Discontinued operations is comprised of ALICO, Nan Shan, AGF, AIG Star and AIG Edison and includes a $3.3 billion impairment charge related to goodwill that had been allocated to ALICO, a $1.2 billion after tax loss on the pending sale of AGF and a $946 million after tax goodwill impairment in connection with the pending sale of AIG Star and AIG Edison. Commenting on the third quarter, AIG President and Chief Executive Officer Robert H. Benmosche said, “We were extremely pleased to announce a few weeks ago our plan to repay the U.S. government. We will continue with our aggressive plan to close pending transactions in order to repay the FRBNY in full, and provide for the exit of U.S. Treasury ownership over time. Repayment of the FRBNY Credit Facility, in full, will trigger an accelerated amortization of the balance of the prepaid commitment fee asset which stood at $4.7 billion at September 30. On October 29, we launched a successful IPO of AIA under the skillful leadership of Mark Tucker. On November 1, we closed on the sale of ALICO. We thank Rod Martin for his outstanding leadership and wish him success in his future endeavors. We expect to close on the sale of AGF later this year, and the sale of AIG Star and AIG Edison early next year.
“Importantly, however, as we accomplish these critical steps in the restructuring, AIG's continuing insurance operating results remain solid, with $2.1 billion of pre-tax operating income generated in the quarter by Chartis and SunAmerica Financial Group. Despite soft market conditions in the property casualty market and a low interest rate environment, these businesses have demonstrated their market leadership and are maintaining their discipline. We continue to focus on maintaining financial strength and underwriting discipline, improving efficiency and transparency, and better balancing risk and return. SunAmerica Financial Group is solidly profitable and making good progress in re-establishing distribution and sales momentum, although fixed annuity sales were slowed by the extraordinarily low interest rate environment.
“During the balance of this year, AIG will focus on the following priorities: completing the definitive documentation and executing the transactions contemplated by the Recapitalization Agreement in Principle, closing the pending sales transactions, and implementing plans to monetize securities received upon the sale of ALICO, developing plans to monetize additional shares of AIA, pursuing options for a sale of Nan Shan, and continuing to unwind AIGFP's exposure. Of utmost importance, however, is the continued stabilization and strengthening of AIG's continuing businesses.”
PROGRESS ON MANAGEMENT'S PLANS FOR STABILIZATION OF AIG AND REPAYMENT OF ITS OBLIGATIONS
Since September 2008, AIG has been working to protect and enhance the value of its key businesses, execute an orderly asset disposition plan, and position itself for the future. AIG continually reassesses its plan to maximize value while maintaining flexibility in its liquidity and capital.
Recapitalization:
- On September 30, 2010, AIG announced that it had entered into an agreement in principle with the United States Department of the Treasury (Department of the Treasury), the FRBNY, and the AIG Credit Facility Trust (the Trust) for a recapitalization transaction (the Recapitalization) designed to repay all its obligations to American taxpayers. The plan involves repayment and termination of the FRBNY Credit Facility, repurchase and exchange of the special purpose vehicle (SPV) Preferred Interests that hold AIA and ALICO, issuance of AIG's Series G Preferred Stock, and exchange of Series C, E and F Preferred Stock for AIG common stock. The Recapitalization Agreement in Principle contemplates the Recapitalization will be completed before the end of the first quarter of 2011.
- As of September 30, 2010, AIG had outstanding net borrowings under the FRBNY Credit Facility of $14.3 billion, plus accrued interest and fees of $6.2 billion, and $14.9 billion remained available.
- As of September 30, 2010, the remaining available amount under the Department of the Treasury Commitment related to Series F Preferred Stock was $22.3 billion.
Sales of Businesses and Specific Asset Dispositions:
AIA Initial Public Offering:
- On October 29, 2010, AIG completed an initial public offering of 8.08 billion shares of AIA for aggregate gross proceeds of approximately $20.51 billion. Upon completion of the initial public offering, AIG owned approximately 33 percent of AIA's outstanding shares. Accordingly, in the fourth quarter of 2010, AIG will deconsolidate AIA for financial reporting purposes.
- Net cash proceeds from the AIA public offering will be held in escrow pending the closing of the transactions contemplated by the Recapitalization Agreement in Principle, at which time the proceeds are expected to be used to repay the FRBNY Credit Facility. Proceeds from future additional sales of AIA shares are expected to be used to repay the SPV Preferred Interests expected to be held by the U.S. Treasury upon closing of the Recapitalization.
ALICO Sale:
- The sale of ALICO and Delaware American Life Insurance Company to MetLife, Inc. (MetLife), for consideration consisting of $7.2 billion in cash and the remainder in securities of MetLife, closed on November 1, 2010. The fair market value of the consideration at closing was approximately $16.2 billion.
- Net cash proceeds from the ALICO sale will be held in escrow pending the closing of the Recapitalization, at which time the proceeds are expected to be used to repay the FRBNY Credit Facility. In addition, AIG intends to monetize the MetLife securities over time, subject to market conditions, following the lapse of agreed-upon minimum holding periods, and will use the proceeds to repay the SPV Preferred Interests expected to be held by the U.S. Treasury upon closing of the Recapitalization.
AGF:
- On August 10, 2010, AIG entered into a definitive agreement to sell 80 percent of AGF for $125 million. As a result of this transaction, AIG recorded an estimated pre-tax loss of approximately $1.9 billion in the third quarter of 2010. The transaction is expected to close by the end of the fourth quarter of 2010, subject to regulatory approvals and customary closing conditions.
AIG Star and AIG Edison:
- On September 29, 2010, AIG entered into a definitive agreement with Prudential Financial, Inc. for the sale of its Japan-based life insurance subsidiaries, AIG Star and AIG Edison, for total consideration of $4.8 billion, less the principal balance of certain outstanding debt owed by AIG Star and AIG Edison as of the closing date. As of September 30, 2010, the outstanding principal balance of the debt approximated $0.6 billion. In connection with the sale, AIG recorded a pre-tax goodwill impairment charge of $1.3 billion in the third quarter of 2010. The transaction is expected to close by the end of the first quarter of 2011, subject to regulatory approvals and customary closing conditions.
Additional supplementary financial data is available in the Investor Information section at www.aig.com .
It should be noted that the recorded comment, the earnings release and the financial supplement may include projections and statements which may constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These projections and statements are not historical facts but instead represent only AIG's belief regarding future events, many of which, by their nature, are inherently uncertain and outside AIG's control. These projections and statements may address, among other things: the consummation of the transactions contemplated by the Recapitalization Agreement in Principle with the FRBNY, Department of the Treasury and the AIG Credit Facility Trust; the number, size, terms, cost, proceeds and timing of dispositions and their potential effect on AIG's businesses, financial condition, results of operations, cash flows and liquidity (and AIG at any time and from time to time may change its plans with respect to the sale of one or more businesses); AIG's long-term business mix which will depend on the outcome of AIG's asset disposition program; AIG's exposures to subprime mortgages, monoline insurers and the residential and commercial real estate markets; AIG's ability to retain and motivate its employees; and AIG's strategy for customer retention, growth, product development, market position, financial results and reserves. It is possible that AIG's actual results and financial condition will differ, possibly materially, from the anticipated results and financial condition indicated in these projections and statements. Factors that could cause AIG's actual results to differ, possibly materially, from those in the specific projections and statements include: a failure to consummate the transactions contemplated by the Recapitalization Agreement in Principle; developments in global credit markets; and such other factors as discussed throughout Part I, Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations, and Part II, Item 1A. Risk Factors in each of AIG's Quarterly Report on Form 10-Q for the quarter ended March 31, 2010, AIG's Quarterly Report on Form 10-Q for the quarter ended June 30, 2010 and AIG's Quarterly Report on Form 10-Q for the quarter ended September 30, 2010, and throughout Part I, Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations and in Part I, Item 1A. Risk Factors of AIG's Annual Report on Form 10-K for the year ended December 31, 2009. AIG is not under any obligation (and expressly disclaims any obligation) to update or alter any projection or other statement, whether written or oral, that may be made from time to time, whether as a result of new information, future events or otherwise.
American International Group, Inc. (AIG) is a leading international insurance organization with operations in more than 130 countries and jurisdictions. AIG companies serve commercial, institutional and individual customers through one of the most extensive worldwide property-casualty networks of any insurer. In addition, AIG companies are leading providers of life insurance and retirement services around the world. AIG common stock is listed on the New York Stock Exchange, as well as the stock exchanges in Ireland and Tokyo.
Comment on Regulation G
This press release, including the financial highlights, includes certain non-GAAP financial measures. The reconciliations of such measures to the most comparable GAAP figures in accordance with Regulation G are included within the relevant tables or in the third quarter 2010 Financial Supplement available in the Investor Information section of AIG's website, www.aig.com .
Throughout this press release, AIG presents its operations in the way it believes will be most meaningful and useful, as well as most transparent, to the investing public and others who use AIG's financial information in evaluating the performance of AIG. That presentation includes the use of certain non-GAAP measures. In addition to the GAAP presentations, in some cases, revenues, net income, operating income and related rates of performance are shown exclusive of Maiden Lane interests, the effect of dispositions, interest and amortization related to the FRBNY Credit Facility, the recognition of other-than-temporary impairments, restructuring-related activities, conversion of the Series C Preferred Stock, realized capital gains (losses), the effects of variable interest entities, the effect of non-qualifying derivative hedging activities, the effect of goodwill impairments, tax valuation allowances, credit valuation adjustments, unrealized market valuation gains (losses), UGC operating results, the effect of catastrophe-related losses and foreign exchange rates and the bargain purchase gain on the Fuji acquisition.
In all such instances, AIG believes that excluding these items permits investors to better assess the performance of AIG's underlying businesses. AIG believes that providing information in a non-GAAP manner is more useful to investors and analysts and more meaningful than the GAAP presentation.
Although the investment of premiums to generate investment income (or loss) and realized capital gains or losses is an integral part of both life and general insurance operations, the determination to realize capital gains or losses is independent of the insurance underwriting process. Moreover, under applicable GAAP accounting requirements, losses can be recorded as the result of other than temporary declines in value without actual realization. In sum, investment income and realized capital gains or losses for any particular period are not indicative of underlying business performance for such period.
AIG believes that underwriting profit (loss) provides investors with financial information that is not only meaningful but critically important to understanding the results of property and casualty insurance operations. Operating income of a property and casualty insurance company includes three components: underwriting profit (loss), net investment income and realized capital gains (losses). Without disclosure of underwriting profit (loss), it is impossible to determine how successful an insurance company is in its core business activity of assessing and underwriting risk. Including investment income and net realized capital gains (losses) in operating income without disclosing underwriting profit (loss) can mask underwriting losses. The amount of net investment income may be driven by changes in interest rates and other factors that are totally unrelated to underwriting performance.
Underwriting profit (loss) is an important measurement used by AIG senior management to evaluate the performance of its property and casualty insurance operations and is a standard measure of performance used in the insurance industry. Further, the equity analysts who follow AIG exclude the realized capital transactions in their analyses for the same reason and consistently request that AIG provide the non-GAAP information.
Life and retirement services production (premiums, deposits and other considerations), gross premiums written, net premiums written and loss, expense and combined ratios are presented in accordance with accounting principles prescribed or permitted by insurance regulatory authorities because these are standard measures of performance used in the insurance industry and thus allow for more meaningful comparisons with AIG's insurance competitors.
American International Group, Inc. Financial Highlights* (in millions, except share data) Three Months Ended Sept. 30, Nine Months Ended Sept. 30, % Inc. % Inc. 2010 2009 (a) (Dec.) 2010 2009 (a) (Dec.) General Insurance Operations: Net Premiums Written $ 8,598 $ 8,072 6.5 % $ 24,034 $ 23,724 1.3 % Net Premiums Earned 8,597 7,936 8.3 23,971 24,231 (1.1 ) Underwriting profit (loss) 65 (414 ) - (285 ) 8 - Net Investment Income 1,007 1,133 (11.1 ) 3,191 2,437 30.9 Income before Net Realized Capital Losses and Bargain Purchase Gain 1,072 719 49.1 2,906 2,445 18.9 Net Realized Capital Losses (b) (207 ) (37 ) - (12 ) (682 ) - Bargain Purchase Gain (c) - - - 332 - - Pre-tax Income 865 682 26.8 3,226 1,763 83.0 Loss Ratio 71.1 75.5 71.5 71.9 Expense Ratio 28.2 29.7 29.7 28.1 Combined Ratio 99.3 105.2 101.2 100.0 Domestic Life Insurance & Retirement Services Operations: Premiums and Other Considerations 1,268 1,277 (0.7 ) 3,898 4,048 (3.7 ) Net Investment Income 2,656 2,739 (3.0 ) 7,991 6,890 16.0 Income before Net Realized Capital Gains (Losses) 978 1,207 (19.0 ) 3,155 1,301 - Net Realized Capital Gains (Losses) (b) 20 (1,429 ) - (1,742 ) (3,150 ) - Pre-tax Income (Loss) 998 (222 ) - 1,413 (1,849 ) - Foreign Life Insurance & Retirement Services Operations: Premiums and Other Considerations 2,559 2,232 14.7 7,387 6,693 10.4 Net Investment Income 1,305 1,297 0.6 2,918 3,908 (25.3 ) Income before Net Realized Capital Gains 534 409 30.6 1,705 1,115 52.9 Net Realized Capital Gains (b) 157 122 28.7 386 202 91.1 Pre-tax Income 691 531 30.1 2,091 1,317 58.8 Financial Services Operations: Pre-tax Operating Income (Loss) excluding Non-qualifying Derivative Hedging Activities and Net Realized Capital Gains (Losses) (81 ) 1,238 - (227 ) 1,439 - Non-qualifying Derivative Hedging Activities (b) - (3 ) - - 3 - Net Realized Capital Gains (Losses) (b) (8 ) (85 ) - (40 ) 90 - Pre-tax Income (Loss) (89 ) 1,150 - (267 ) 1,532 - Other before Net Realized Capital Losses, and Net Gain (Loss) on Sale of Divested Businesses and Consolidation and Elimination Adjustments (1,892 ) (1,310 ) - (3,278 ) (7,286 ) - Other Net Realized Capital Losses (b) (618 ) (869 ) - (287 ) (547 ) - Net Gains (Loss) on Sale of Divested Businesses 4 (885 ) - 126 (1,192 ) - Consolidation and Elimination Adjustments (b) (d) 463 406 14.0 774 438 76.7 Income (Loss) from Continuing Operations before Income Tax Expense (Benefit) 422 (517 ) - 3,798 (5,824 ) - Income Tax Expense (Benefit) 469 (408 ) - 1,044 (1,510 ) - Net Income (Loss) from Continuing Operations (47 ) (109 ) - 2,754 (4,314 ) - Net Income (Loss) from Discontinued Operations, net of tax (1,844 ) 94 - (4,329 ) 1,011 - Net Loss (1,891 ) (15 ) - (1,575 ) (3,303 ) - Less: Net Income (Loss) from Continuing Operations Attributable to Noncontrolling Interests: Noncontrolling Nonvoting, Callable, Junior and Senior Preferred Interests Held by Federal Reserve Bank of New York 388 - - 1,415 - - Other 104 (496 ) - 243 (1,271 ) - Total Income (Loss) from Continuing Operations Attributable to Noncontrolling Interests: 492 (496 ) - 1,658 (1,271 ) - Income from Discontinued Operations Attributable to Noncontrolling interests 12 26 (53.8 ) 35 44 (20.5 ) Net Income (Loss) Attributable to AIG (2,395 ) 455 - (3,268 ) (2,076 ) - Net Income (Loss) Attributable to AIG Common Shareholders $ (2,395 ) $ 92 - $ (662 ) $ (3,371 ) -
Financial Highlights -continued Three Months Ended Sept. 30, Nine Months Ended Sept. 30, % Inc. % Inc. 2010 2009 (a) (Dec.) 2010 2009 (a) (Dec.) Net Income (Loss) Attributable to AIG $ (2,395 ) $ 455 - % $ (3,268 ) $ (2,076 ) - % Income (Loss) from Discontinued Operations Attributable to AIG, net of tax (1,856 ) 68 - (4,364 ) 967 - Net Gain (Loss) on Sale of Divested Businesses, net of tax 4 (773 ) - 21 (928 ) - Net Realized Capital Losses , net of tax (464 ) (798 ) - (1,177 ) (3,590 ) - Non-qualifying Derivative Hedging Gains (Losses) , net of tax 121 335 (63.9 ) (88 ) 923 - Bargain Purchase Gain - - - 332 - - Adjusted Net Income (Loss) Attributable to AIG $ (200 ) $ 1,623 - $ 2,008 $ 552 - Income (Loss) Per Common Share - Diluted: Net Income (Loss) Attributable to AIG Common Shareholders $ (17.62 ) $ 0.68 - $ (4.88 ) $ (24.92 ) - Adjusted Net Income (Loss) Attributable to AIG Common Shareholders $ (1.47 ) $ 2.42 - $ 2.99 $ 0.82 - Book Value Per Common Share on AIG Shareholders' Equity (e) $ 598.22 $ 540.19 10.7 Pro forma Book Value Per Common Share on AIG Shareholders' Equity (f) $ 48.24 $ 43.73 10.3 Weighted Average Common Shares Outstanding - Diluted 135.9 135.5 135.9 135.3
Financial Highlights - Notes * Including reconciliation in accordance with Regulation G. (a) Certain amounts have been reclassified in 2009 to conform to the 2010 presentation. (b) Includes gains (losses) from hedging activities that did not qualify for hedge accounting treatment, including the related foreign exchange gains and losses. (c) For the nine months ended September 30, 2010 includes a bargain purchased gain of $332 million related to the acquisition of Fuji, which reflected adjustment of $74 million in the third quarter of 2010. AIG will retrospectively revise its results of operations for the three months ended March 31, 2010 when presenting comparative financial information containing that period. Foreign General Insurance began consolidating Fuji's results beginning in the third quarter of 2010. (d) Includes income (loss) from certain AIG managed partnerships, private equity and real estate funds that are consolidated. Such income (loss) is offset in net income (loss) from continuing operations attributable to noncontrolling interests, which is not a component of income (loss) from continuing operations. (e) Represents total AIG shareholders' equity divided by common shares issued and outstanding. (f) Pro-forma book value per common share computed assuming adjustment to AIG shareholders' equity for outstanding Equity Units and Series C, E, and F preferred stock. Contact:
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Christina Pretto, 212-770-7083AIG to get $22 billion in TARP funds for restructuring
WASHINGTON | Mon Nov 1, 2010 4:39pm EDT
WASHINGTON (Reuters) - Bailed out insurer American International Group will get up to $22 billion more in U.S. taxpayer funds to facilitate its restructuring and prepare for an eventual government exit, the U.S. Treasury said on Monday.
But the Treasury reiterated that it expects the government to earn an overall profit on bailout investments in the insurance giant -- once as high as $180 billion -- assuming the AIG restructuring announced on September 30 is executed.
AIG will draw the $22 billion from remaining Troubled Asset Relief Program funds to repurchase Federal Reserve preferred stock interests in the special purpose vehicles holding two key subsidiaries being sold off, AIA Group Ltd and American Life Insurance Co (ALICO), the Treasury said in a statement.
Following the sale of ALICO and AIA's initial public offering in Hong Kong, the Treasury said it will receive the remaining special purpose vehicle assets, including AIG's remaining shares in AIA and shares in ALICO buyer MetLife Inc. These assets "significantly exceed the amount of the preferred investments, and as such, no losses are expected on those preferred interests," the Treasury said.
Currently, the New York Fed values the AIA and ALICO preferred interests at $26.1 billion -- with part of this to be paid down from sale and IPO proceeds.
The bulk of the $20.5 billion in proceeds from the AIA IPO and $7.2 billion in cash from the AIA sale will go to pay off a Federal Reserve credit facility, at a cost of about $20 billion including accrued interest and fees.
AIG on Monday closed the sale of ALICO to Metlife Inc for $16.2 billion, with $7.2 billion in cash and the remainder in stock.
Following the restructuring, expected to be completed by the end of the first quarter of 2011, the Treasury will own 92.1 percent of AIG's common stock, or about 1.66 billion shares.
Based on Friday's market closing price of $42.01, the government's stake was worth $69.5 billion, compared with the Treasury-only investment of $47.5 billion. The $69.5 billion value excludes the special purpose vehicles, which includes stakes in AIA, MetLife and in AIG subsidiaries Nan Shan in Taiwan, Star Life and Edison Life Insurance in Japan and aircraft leasing firm International Lease Finance Corp.
"It is expected that proceeds from the monetization of these assets will be used to repay the SPV preferred interests in full," the Treasury said.
Two other Federal Reserve bailout special purpose vehicles, Maiden Lane II and Maiden Lane III, hold AIG mortgage assets whose value now exceeds their original Fed loan amounts. These loans, totaling $27.8 billion, are expected to be repaid in full from the assets held in the vehicles, the Treasury said.
(Reporting by David Lawder; Editing by Andrew Hay)
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
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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
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517509
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3576 TERRACE WAY #A
LAFAYETTE, CA 94549
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AMERICAN CONTRACTORS INDEMNITY COMPANY .Effective Date: 01/13/2010
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1065 MOHR LN UNIT B
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Personnel License List for HUTCHENS, JOHN FRANCIS
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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.
JOHN F. HUTCHENS
Enjoy your subscription to the Metropolitan Corporate Counsel.STANNARIES, stannaria, from the Lat. stannum, tin.] The mines and works where tin metal is got and purified; as in Cornwall, Devonshire, &c. Camden Brilt. 199. The tinners are called stannary men.
The stannary courts in Devonshire and Cornwall, for the administration of justice among the tinners therein, are courts of record, but of a private and exclusive nature. They are held before the lord warden and his substitutes; in virtue of a privilege granted to the workers in the tin-mines there, to sue and be sued only in their own courts, that they may not be drawn from their business, which is highly profitable to the public, by attending their law-suits in other courts, 4 Inst. 232. The privileges of the tinners are confirmed by a charter 33 Edw. 1 ; and fully expounded by a private statute, 50 Edw. 3, (given at length in 4 Inst. 232.) which has since been explained by a public act, 16 Car. 1. c. 15.
All tinners and labourers in and about the stannaries shall, during the time of their working therein, bond fide, be privileged from suits of other courts, and be only impleaded in the stannary court, in all matters, excepting pleas of land, life, and member. No writ of error lies from hence to any court in Westminster-hall: but an appeal lies from the steward of the court to the under-warden, and from him to the lordwarden ; and thence to the privy council of the Prince of Wales, as Duke of Cornwall, when he hath had livery or investure of the same ; and from thence the appeal lies to the king himself in the last resort. 3 Comm. c. 6. p. 79, 80. cites 4 Inst. 230, 231 ; 3 Bulst. 183; Dodr. Hist. Cornrv. 94.
Transitory actions between tinner and tinner, &c. though not concerning the stannaries, or arising therein, if the defendant be found within the stannaries, may be brought into these courts, or at common law; but if one party alone is a tinner, such transitory actions which concern not the stannaries, nor arise therein, cannot be brought in the stannary courts. 4 Inst. 251.
By the 4 & 5 Wm. 4. c. 42. commissioners for taking affidavits in the common law courts at Westminster, or masters extraordinary in Chancery, having commissions from the vicewarden of the stannaries, are empowered to take affidavits in the courts of the vice-warden.
STAR-CHAMBER, camera slellata, otherwise called Chambre des estoylles.~\ A chamber at Westminster so called, (as Sir Thomas Smith, de Rep. Anglor. lib. 2. c. 4. conjectures,) because at first the ceiling thereof was adorned with images of gilded stars. And in the 25 Hen. 8. c. 1. it is written the Starred Chamber. It was ordained by 3 Hen. 7. c. 1 ; and 21 Hen. 8. c. 2. that the chancellor, assisted by others there named, should have power to punish routs, riots, forgeries, maintenances, embraceries, perjuries, and other such misdemeanors as were not sufficiently provided for by the common law, and for which the inferior judges were not so proper to give correction
In Chancery, the proceedings on a statute-staple are in the petty-bag office;
SUBINFEUDATION. See Feoffment; was where the inferior lords, in imitation of their superiors, began to carve out and grant to others minuter estates than their own, to be held of themselves, and were so proceeding downwards, in infinitum, till stopped by various legislative provisions. See Manor, Tenures.
SUPERSEDEAS. A writ that lies in a great many cases; and signifies in general a command to stay some ordinary proceedings at law, on good cause shown, which ought otherwise to proceed. F. N. B. 236.
A supersedeas is used for the staying of an execution, after a writ of error is allowed,'and bail put in: but no supersedeas can be made out on bringing writ of error, till bail is given, where there is judgment upon verdict, or by default, in debt. 3 Jac. I.e. 8. Nor in actions for tithes, promises for payment of money, trover, covenant, detinue, and trespass. 12 Car. 2. st. 2. c. 2. And execution shall not be staid in any judgment after verdict (except in the case of executors) by writ of error or supersedeas thereon, unless bail be put in. 16 & 17 Car. 2. c. 8. § 3. See Error, Introd. & II. 2.
A writ of error is said to be in judgment of law a stipersedeas, until the errors are examined, &c. that is to the execution ; not to action of debt on the judgment at law. From the time of the allowance, a writ of error is a supersedeas: and if the party had notice of it before the allowance, it is a supersedeas from the time of such notice ; but this must be where execution is not executed, or begun to be executed. Cro. Jac. 534; Raym. 100; Mod. Ca. 130; 1 Salk. 321.
Where a first writ of error abates, or is put an end to by the act of the plaintiff in error, a second writ of error brought in the same court is not a supersedeas of execution as the first: and execution may then be sued out without leave of
the court. But in error of matter of fact coram vobis, which is not within the statutes requiring bail in error, the writ of error is or is not a supersedeas according to circumstances; and the court must be moved for leave to sue out execution pending it. 8 East, 412.
If, before execution, the defendant bring a writ of error, and the sheriff will execute a. fieri facias and levy the money, the court will award a supersedeas, quia erronici emanavit, and to have restitution of the money. Stile, 414. After an execution, there was a supersedeas, quia executio improvide' emanavit, fyc. issued; and there being no clause of restitution in the supersedeas, it was insisted that the execution was executed before the supersedeas awarded, and that a faulty supersedeas is no supersedeas; but the court ordered another supersedeas, with a clause of restitution. Moor, 465.
The supersedeas, quia erronich emanavit, lies to restore a possession, after an habere facias seisinum, when sued out erroneously; so of a supersedeas after execution upon a capias ad satisfaciend. if it be immediately delivered to the sheriff. Jenk. Cent. 58. 92. It appearing, upon affidavit, that there were two writs of execution executed upon one judgment; the party moved for a supersedeas, because there cannot be two such executions, but where the plaintiff is hindered either by the death of the defendant, or by some act in law, that he can have no benefit of the first; and so it was adjudged. Stile, 255. A supersedeas is grantable to a sheriff to stay the return of an habeas corpora; and if he return it afterwards, and the parties proceed to trial, it is error ; and so are all the proceedings in an inferior court, after an habeas corpora delivered, unless a procedendo is awarded, in which case a supersedeas is not to be granted. Cro. Car. 43. 350.
When a certiorari is delivered, it is a supersedeas to inferior courts below ; and being allowed, all their proceedings afterwards are erroneous; and they may be punished. If a sheriff holds plea of 40s. debt in his county court, the defendant may sue forth a supersedeas, that he do not proceed, &c. Or, after judgment, he may have a supersedeas directed to the sheriff', requiring him not to award execution upon such judgment; and upon that an alias, a })luries, and an attachment, &c. New Nat. Br. 432. See Certiorari.
Supersedeas may be granted by the court for setting aside an erroneous judicial process, &c. Also a prisoner may be discharged by supersedeas; as a person is imprisoned by the king's writ, so he is to be set at liberty: and a supersedeas is as good a cause to discharge a person, as the first process is to arrest him. Finch, 453; Cro. Jac. 379. If a privileged person is sued in any jurisdiction foreign to his privilege, he may bring his supersedeas. Vattgh. 155.
There is a supersedeas where an audita querela is sued ; and out of the Chancery,'to'set a person at liberty, taken upon an exigent, on giving security to appear, &c. And in cases of surety of the peace and good behaviour, where a person is already bound to the peace in the Chancery, &c. New Nat. Br. 524. 529. 532. So where a warrant issues against a man, on an indictment found against him, for a misdemeanor, or other bailable offence, and he, having notice of it, does, before caption, duly put in bail, to appear and traverse the indictment, &c. he is entitled to a supersedeas, to prevent a caption.
It is false imprisonment to detain a man in custody after a supersedeas delivered, for the supersedeas is to be obeyed; and in such case it is a new caption without any cause. 2 Cro. 379.
See further Bac. Abr. and 20 Fin. Abr. tit. Supersedeas, and ante, tits. Error, Execution, fyc. and the books of Practice.
SURRENDER, surmm redditio.~] A deed or instrument testifying that the particular tenant for life or years of lands and tenements, doth yield up his estate to him that hath the immediate estate in remainder or reversion, that he may have the present possession thereof; and wherein the estate for life or years may merge or drown by the mutual agreement of the parties. Co. Lift. 387.
A surrender is of a nature directly opposite to a release; for as that operates by the greater estate's descending upon the less, a surrender is the falling of a less estate into a greater. It is made by these words, Hath surrendered, granted, and yielded up. 2 Conim. c. 20, p. 326.
Of surrenders there are three kinds: a surrender properly taken at common law; a surrender of copyhold or customary estates, as to which see Copyhold; and a surrender, improperly taken, as of a deed, a patent, rent newly created, &c.
The surrender at common law is the usual surrender, and is of two sorts, viz. a surrender in deed, or by express words in writing, where the words of the lessee to the lessor prove a sufficient assent to give him him his estate back again; and a surrender in law, being that which is wrought by operation of law, and not actual; as if a lessee for life or years take a new lease of the same land during the term, this will be a surrender in law of the first lease. 1 Inst. 338 ; 5 Rep. 11 ; Perk. 601.
To the making of a good surrender in deed of lands, the following things are requisite. The surrenderor is to be a person able to grant and make a surrender, and the surrenderee a person able to receive and take it; the surrenderor must have an estate in possession of the things surrendered, and not a future right; and the surrender is to be made to him that hath the next estate in remainder or reversion, without any estate coming between; the surrenderee must have a higher or greater estate in his own right, and not in the right of his wife, &c. in the thing surrendered, than the surrenderor hath, so that the estate of the surrenderor may be drowned therein; (so that lessee for life cannot surrender to him in remainder for years ;) there is to be a privity of estate between the surrenderor and surrenderee; and the surrenderee must be sole seised of his estate in remainder or reversion, and not in joint-tenancy ; and the surrenderee agree to the surrender, &c. 1 Inst. 338 ; Perk. 584, 588 ; 2 Roll. Air. 494 ; Noy's Max. 73.
In some cases a surrender in law is of greater force than a surrender in deed ; for if a man makes a lease for years, to begin at a day to come, this future interest cannot be surrendered by deed, because there is no reversion wherein it may drown; but if the lessee, before the day, take a new lease of the same land, it is a good surrender in law of the former lease: and this surrender in law, by taking a new lease, holds good, though the second lease is for a less term than the first; and, it is said, though the second lease is a voidable lease, &c. 5 Rep. 11; 6 Rep. 69; 10 Rep. 67; 1 Inst. 218; Cro. Eliz. 873.
If lessee for life do accept of a lease for years, this is a surrender in law of his lease for life; if it should be otherwise, the lease for years would be made to no purpose, and both the leases cannot stand together in one person. 2 Lill. Ahr. 544. Lessee for twenty-one years takes a lease of the same lands for forty years, to commence after the death of A. B., it is not any present surrender of the first term ; but if A. B. dies within the first term, it is. 4 Leon. 83. A lessee for years took a second lease, to commence at Michaelmas ensuing: adjudged this was an immediate surrender in law of the first; and that the lessor might enter and take the profits, from the time of the acceptance of the second lease, until Michaelmas following. Cro. Eliz. 605. If the
lessor make, and lessee accept, a new lease, and it is upon condition; this shall be a surrender in law: and if an assignee of tenant for years take a new lease, &c. the first lease will be by law surrendered. 1 Inst. 218. 338. If a woman lessee for years marries, and afterwards she takes a new lease for life without her husband, this is a surrender and extinguishment of the term ; but if the husband disagree, then it is revived : though if the new lease had been made to the husband and wife, then, by acceptance thereof, the first lease had been gone. Hutt. 7. A lessor takes the lessee to wife, then the term is not drowned or surrendered; but he is possessed of the term in her right, during the coverture. Wood's Inst. 285.
Lease of lands by indenture for twenty-one years, with, provision that it should be determinable by lessee or lessor at the end of the first seven or fourteen years; memorandum indorsed six years after the execution of the lease, of its being agreed between the parties, previously to the execution, that the lessor shall not dispossess nor cause the lessee to be dispossessed of the said estate, but to have it for the term of twenty-one years from this present time; which memorandum was signed by the parties, and stamped with a lease stamp and not sealed. The Court of K. B. held that the lessor might determine the lease at the end of the first fourteen years ; for the memorandum did not operate as a new lease and surrender of the first lease. 4 M. fy. S. 30.
A surrender may be of any thing grantable, either absolute or conditional; and may be made to an use, being a conveyance tied and charged with the limitation of an use: but it may not be of an estate in fee ; nor of rights and titles only to other estates for life or years; or for part of such an estate; nor may one termor regularly surrender to another termor; nor can a tenant at will surrender any more than he can grant. Perk. 615 ; Noy's Max. 73 ; Cro. Eliz. 688 ; 1 Leon. 303. Where things will not pass by surrender, the deed may enure to other purposes, and take effect by way of grant, having sufficient words. Perk. 588, 624.
A man who hath a fee simple estate cannot surrender it, because it cannot be drowned in another estate. 12 Hen. 4, 21. And if a lease be made for life or years to A., the remainder for life to B., remainder in fee tail to C, and the first tenant surrenders to C.; this will not take effect as a surrender, by reason of the intervening estate. Dyer, 112. The lessee for life or years may surrender to him that is next in remainder in fee-simple or fee-tail. And if lessee for life surrenders his estate to one in remainder, that is tenant for his own life, it is a good surrender; for a man's estate for his own life, in judgment of law, is greater than that for another's. And where an estate is surrendered for life, there needs no livery or seisin, as in a grant, 1 Inst. 338; Dyer, 251, 280.
If there be lessee for years, the remainder for life, remainder in fee; the lessee for years may surrender to the lessee during life, and so may he to him in the remainder in fee. Perk. § 605.
In case of tenant for life, the remainder for life, reversion in fee; it was a question formerly, whether the remainderman for life by and with the consent of the tenant for life could surrender to him in reversion without deed, only by coming on the land and saying, that he did surrender to him in reversion. The court were divided; but two judges held, that if tenant for life and he in remainder for life surrendered to the reversioner, it should pass as several surrenders, viz. first of him in remainder to the tenant for life, and then by the tenant for life to him in reversion. Poph. 137.
If tenant for life grant his estate to him in reversion, this is a surrender ; and it must be pleaded according to the operation it hath in law, or it will not be good. 4 Mod. 151. Though if lessees for life or years grant their estates to him in remainder or reversion, and a stranger, it shall enure as a surrender of the one half to him in reversion, and as a grant of the other moiety to the stranger. 1 Inst. 335.
In some cases, an estate, &c. may have continuance, though it be surrendered; as where lessee for life makes a lease for years, and after doth surrender, the term for years doth continue; and so of a rent charge granted by such lessee, &c. Bro. 47; 1 Inst. 338. If the lessee for years, rendering rent, surrenders his estate to the lessor, hereby the rent is extinct; but if the rent were granted away before the surrender, it would be otherwise. 8 Rep. 145; Bro. Surrend. 42. Tenant for life is disseised, or for years ousted ; and before entry or possession gained, he surrenders to him in reversion; this surrender is void. And yet if lessee for years, after his term is begun, before he enters, and when nobody doth keep from him the profits, surrenders, it will be good. Perk. § 600.
In a surrender there is no occasion for livery of seisin ; for there is a privity of estate between the surrenderor and surrenderee. The particular estate of the one, and the remainder of the other, are one and the same estate. See Remainder, Reversion. And livery having been once made at the creation of it, there is no necessity for having it afterwards. 1 Inst. 50. And for the same reason it is that no livery is required on a release, or confirmation in fee, to tenant for years, or at will, though a freehold thereby passes ; since the reversion of the relessor or confirmor, and the particular estate of the relessee or confirmee, are one and the same estate. And where there is already a possession derived from such a privity of estate, any further delivery of possession would be vain and nugatory. 2 Comm. 326. See Release, Livery of Seisin.
At common law, an express surrender of things lying in grant could be made by deed only, but a surrender of things lying in possession might be made by parol without livery of seisin, or other formal mode of conveyance, though the particular estate had been originally created by deed; for it was but a restoring of the estate back again to him in reversion or remainder. 2 Roll. Abr. 24 ; 1 Ventr. 242, 272. But by the 29 Car. 2. c. 2. no estates of freehold, or of terms for years, shall be granted or surrendered, but by deed or note in writing, signed by the parties, or unless by operation in law, &c.
The statute extends to tenancies from year to year, and therefore a landlord and tenant cannot, by mere parol agreement in the middle of a quarter, determine a tenancy from year to year, though created by parol. 2 Camp. 183 ; 2 Stark. 379. And see further, Lease, I. 4.
A surrender of a prebendary's lease, upon condition that if the then prebendary did not, within a week after, grant a new lease for three lives, the surrender shall be void. Held to be a good surrender within the 32 Hen. 8. c. 28. § 2. 2 Strange, 1201. See further, Lease, II.
Many cases have arisen upon the question, after what length of time mortgage terms that have been satisfied, and terms that have been assigned to trustees to attend the inheritance, and have not subsequently been dealt with, will be presumed to have been surrendered. The decisions of the courts of law and equity have been conflicting upon this subject, which has given rise to many learned arguments. See the point discussed in Sugden's Vendors and Purchasers.
It is no ground for presuming the surrender of a term devised to trustees less than twenty years ago, that the reversioner in fee has dealt with the property as absolutely as his own, by leasing it for lives. 1 C.^ M. 227.
By the 4 Geo. 2. c. 28. § 6. leases may be renewed without the surrender of under-leases. See further, 20 Fin. Abr. 119—146 ; and Leases.
As to the surrender of leases to or by idiots or infants, in order to be renewed, see Idiots, IV. 2 ; Infant, V. The statute of the 1 Wm. 4. c. 65. mentioned under those titles, also extends to femes coverts.
See further, Extinguishment, Merger.
Surrender Of Copyholds. Is the yielding up of the estate by the tenant into the hands of the lord, for such purposes as in the surrender are expressed. This method of conveyance is so essential to the nature of a copyhold estate, that it cannot properly be transferred by any other assurance. But courts of equity will, in some particular cases, supply the want of a surrender. See 2 Comm. c. 22 ; and tit. Copyhold.
Surrender Of Letters Patent, And Offices. A surrender may be made of letters patent to the king, to the end he may grant the estate to whom he pleases, &c.; and a second patent for years to the same person, for the same thing, is a surrender in law of the first patent. 10 Rep. 66.
Letters patent for years were delivered into chancery to be cancelled, and new letters patent made for years ; but the first were not cancelled. It was held that the second were good, because they were a surrender in law of the first, and the not cancelling was the fault of the chancery, which ought to have done it. 10 Rep. 66, 67; 2 Lil. Abr. 545. If an officer for life accepts of another grant of the same office, it is in law a surrender of the first grant; but if such an officer takes another grant of the same office to himself and another, it may be otherwise. 1 Ventr. 297 ; 3 Cro. 198. See Dyer, 167, 198; Godb. 415; and ante, titles Grant of the King, Office.
Surrender Of Tithes in Scotland. The submissions and surrenders of tithes there were made to King Charles I., in consequence of an action of reduction brought by his majesty of all rights to tithes which had been granted by James VI. (James I. of England), contrary to the act of annexation. These submissions led to the happiest consequences, as the decree arbitrarily which passed on them provided for the valuation and sale of tithes, and laid the foundation of a system highly fortunate for the agriculture of that country. Bell's Scotch Law Diet.
SURROGATE, surrogatusJ] Is one that is substituted or appointed in the room of another ; as by a bishop, chancellor, judge, &c.
For his duties in granting marriage licences, see title Marriage.
By the 56 Geo. 3. c. 82. the judicial acts of surrogates of vice-admiralty courts in the colonies, during the death, resignation, or removal of the judges by whom they were appointed, &c. are declared valid.
SURSISE, supersisa.~\ A word especially used in the Castle of Dover, for penalties and forfeitures laid upon those that pay not the duties or rent of castle-ward, at their days limited. It probably comes from the Fr. sursist, i. e. forborn or neglected. Brit. 52. And Bracton hath it so in a general signification. Bract, lib. 5.
SURVEY. To measure, lay out, or particularly describe a manor, or estate in lands; and to ascertain not only the bounds and royalties thereof, but the tenure of the respective tenants, the rent and value of the same, &c. On the falling of an estate to a new lord, consisting of manors, where there are tenants by lease, and copyholders, a court of survey is generally held ; and at certain other times, to apprise the lord of the present terms and interests of the tenants, and as a direction on making further grants, as well as in order to improvements, &c. In this court, a survey, or particular in the nature of a rent-roll, is made out, specifying the tenants and terms of their tenure, &c. See Comp. Court Keep.
SURVEYOR, from Fr. sur, i. e. super, and voir, cernere."] One that has the overseeing or care of some person's lands or works. A court of surveyors was erected by 33 Hen. 8. c. 39. for the benefit of the crown.
Surveyor Of The Kino's Exchange. An ancient officer belonging to the mint and coinage, mentioned in the 9 Hen. 5. c. 4.
Surveyor-general Of The King's Manors And Lands.
Is mentioned in Cromp. Jurisd. 106. See 46 Geo. 3. c. 142. and 50 Geo. 3. c. 65. as to the execution of the powers of this officer ; and tit. Forests.
Surveyors Of The Highways. See Ways.
Surveyor Of The Navy. An officer appointed over all Stores ; and to survey hulls and masts of ships, &c. Chamberl.
Surveyor Of The King's Ordnance. This officer surveys the ordnance and provisions of war, allows bills of debt, and keeps the checks on labourers' works, &c.
Surveyors Of The Wards And Livertes. This office was abolished, with the courts of wards and liveries, by the 12 Car. 2. c. 24.
SURVIVOR, from Fr. survivre, Lat. supervivo."] The longer liver of two joint-tenants, or of any two persons joined in the right of a thing. He that remaineth alive after others be dead, &c. Broke, 33. See Joint-tenant.
SUSPENSE, SUSPENSION, suspensio.'] A temporal stop, or hanging up, as it were, of a man's right for a time.
In legal understanding, it is taken to be where a rent, or other profit out of lands, by reason of the unity of possession of the rent, &c. and the land out of which it issues, is not in esse for a certain time, et tunc dormit, but may be revived or awaked. And it diners from extinguishment, which is when it dies or is gone for ever. Co. Litt. 213.
A suspension of rent is, when either the rent or land is so conveyed, not absolutely and finally, but for a time, after which the rent will be revived again. Vaugh. 109. A rent may be suspended by unity for a time ; and if a lessor does any thing which amounts to an entry on the land, though he presently depart, yet the possession is in him sufficient to suspend the rent, until the lessee do some act which amounts to a re-entry. Vaugh. 39; 1 Leon. 110. As rent is not issuable out of a common, the lessor's inclosing the common cannot suspend his rent. Cro. Jac. 679.
If part of a condition is suspended, the whole condition, as well for payment of the rent, as doing a collateral act, is suspended. 4 Rep. 25. And a thing or action personal once suspended, is for ever suspended, &c. Cro. Car. 373. See Extinguishment.
By letters of suspension passing under the signet in Scotland, process at law, or the effect of the judgment of a court, may be suspended.
Suspension, is also used for a censure, whereby ecclesiastical persons are forbidden to exercise their office, or take the profit of their benefices; or where they are prohibited for a certain time, in both of them, in the whole or in part. Hence is suspensio ab officio, or suspensio <'t beneficio, and ab officio et beneficio. Wood's Inst. 510.
There is likewise a suspension which relates to the laity, i. e. suspensio ab ingrcssu ecclesice, or from the hearing of divine service, &c. In which case it is used, as in the canon law, pro minore excommunicalione. 24 Hen. 8. c. 12. See Excommunication.
Suspension Of The Habeas Corpus Act. See Habeas Corpus, Government.
Suspension From Offices. See Mandamus, Office.
TAIL; FEE-TAIL,
Feodum Talliatum ; from the Fr. tailler, to cut; either because the heirs general are by this means cut off; or because this estate is a part cut out of the whole. See Tenures, III. 6.
An estate in fee-tail is a limited fee, as opposed to a feesimple : it is that inheritance whereof a man is seised to him and the heirs of his body, begotten or to be begotten; limited at the will of the donor. He that giveth lands in tail, is called the donor ; and he to whom the gift is made, the donee. Litt. § 18. Estates in fee-tail are the (comparatively modern) offspring of the conditional fees at common law. Before the statute de donis, if lands were given to a man and the heirs of his body, it was interpreted to be a fee-simple presently by the gift, upon condition that he had issue; and if he had issue, the condition was supposed to be performed for three purposes, viz. to alien and disinherit the issue; and by the alienation to bar the donor or his heirs of all possibility of the reversion ; to forfeit the estate for treason or felony ; and to charge it with rent, &c. But, by the statute de donis, the will and intention of the donor is to be observed; as that
TAIL.
the tenant in tail shall not alien after issue had, or before, or forfeit or charge the lands longer than for his own life, &c. and the estate shall remain to the issue of the donee, or to the donor or his heirs, where there is no issue; so that whereas the donee had a fee-simple before, now he has but an estatetail, and the donor a reversion in fee expectant upon that estate-tail. Co. Litt. 19. See post, III.
In this place, without further entering into the origin of these estates, (for which see Tenures, above referred to,) we shall consider,
I. Wliat things may or may not be entailed, under the statute de donis: Westm. 2. (13 Edni. 1. st. 1.)
c. 1.
II. The several species of estates-tail: and further, horn
they are respectively created.
III. The incidents to an estate-tail; and the effect of the
various statutes relating thereto.
IV. T/te provisions of the recent statute, 3 $• 4 Wm. 4. c. 74.
I. Tenements is the only word used in the statute: and this Coke expounds to comprehend all corporeal hereditaments whatsoever; and also all incorporeal hereditaments which savour of the realty, that is, which issue out of corporeal ones, or which concern, or are annexed to, or may be exercised within the same; as rents, estovers, commons, and the like. 1 Inst. 19, 20. Also officers and dignities, which concern lands, or have relation to fixed and certain places, may be entitled. 7 Rep. 33. But mere personal chattels, which savour not at all of the realty, cannot be directly entailed. Neither can an office, which merely relates to such personal chattels : nor an annuity, which charges only the person, and not the lands, of the grantor. But in these last, if granted to a man and the heirs of his body, the grantee hath still a fee conditional at common law, as before the statute ; and by his alienation (after issue born) may bar the heir or reversioner.
1 Inst. 19, 20. An estate to a man and his heirs for another's life cannot be directly entailed: for this is strictly no estate of inheritance, and therefore not within the statute de donis.
2 Fern. 225. Neither can a copyhold estate be entailed by virtue of the statute ; for that would tend to encroach upon and restrain the will of the lord : but, by the special custom of the manor, a copyhold may be limited to the heirs of the body ; for here the custom ascertains and interprets the lord's will. 3 Rep. 8.
If a term for years, or any personal chattel, (except an annuity, see that title, and tit. Rents,) be granted or devised by such words as would convey an estate-tail in real property, the grantee or devisee has the entire and absolute interest, without having issue; and as soon as such interest is vested in any one, all subsequent limitations, of consequence, become null and void. 1 Bro. C. R. 274 ; 1 Inst. 20. Fearne. See post.
Two things seem essential to an entail, within the statute de donis. One requisite is, that the subject be land, or some other thing of real nature. The other requisite is, that the estate in it be an inheritance. Therefore neither estates pur autre vie in lands, though limited to the grantee and his heirs during the life of cestui que vie, nor terms for years, are entailable any more than personal chattels ; because, as the latter, not being either interests in things real, or of inheritance, want both requisites; so the two former, though interests in things real, yet, not being also of inheritance, are deficient in one requisite.
However, estates pur autre vie, terms for years, and personal chattels, may be so settled as to answer the purposes of an entail, and be rendered unalienable for almost as long a time, as if they were entailable in the strict sense of the word. Thus estates pur autre vie may be devised or limited in strict settlement, by way of remainder, like estates of inheritance, and such as have interests in the nature of estates-tail may bar their issue and all remainders over, by alienation of the estate pur autre vie, as those who are, strictly speaking, tenants in tail may do by fine and recovery (now abolished, see poil) ; but then the having of issue is not an essential preliminary to the power of alienation, in the case of an estate pur autre vie, limited to one and the heirs of his body, as it is in the case of a conditional fee, from which the mode of barring by alienation was evidently borrowed.
The manner of settling terms for years and personal chattels is different from the above ; for in them no remainders can be limited ; but they may be entailed by executory devise, or by deed of trust, as effectually as estates of inheritance ; if it is not attempted to render them unalienable beyond the duration of lives in being, and twenty-one years after, and perhaps, in the case of a posthumous child, a few months more : a limitation of time, not arbitrarily prescribed by our courts of justice, but wisely and reasonably adopted, in analogy to the case of freeholds of inheritance, which cannot be so limited by way of remainder, as to postpone a complete bar of the entail by fine or recovery for a longer space. See Executory Devise, Limitation, Remainder.
It is also proper to observe, that in the case of terms of years and personal chattels, the very vesting of an interest, which in realty would be an estate-tail, bars the issue and all the subsequent limitation as effectually as fine and recovery (see post), in the case of estates entailable within the statute de donis, or a simple alienation in the case of conditional fees and estates pur autre vie; and further, that if the executory limitations of personalty are on contingencies too remote, the whole property is in the first taker.
Upon the whole, by a series of decisions within the two last centuries, and after many struggles in respect to personalty, it is at length settled that every species of property is, in substance, equally capable of being settled in the way of entail; and though the modes vary according to the nature of the subject, yet they tend to the same point, and the duration of the entail is circumscribed almost as nearly within the same limits as the difference of property will allow.
As to the entail of estates pur autre vie, see 2 Vern. 184, 225 ; 3 P. Wms. 262 ; 1 Atk. 524 ; 2 Atk. 259, 376 ; 3 Atk. 464 ; and 2 Ves. 681. As to the entails of terms for years, and personal chattels, see Manning's case, 8 Co. 94 ; Lampett's case, 10 Co. 46 b; Child v. liaily, W. Jo. 15 ; Duke of Norfolk's case, 3 C. C. 1. See also Carth. 267 ; 1 P. Wms. 1. And on the whole subject, Fearne's Essay on Contingent Remainders and Executory Devises; and 1 Inst. 20. in n.
II. Estates-tail are either general or special.
Tail-general is where land and tenements are given to one and the heirs of his body begotten, which is called tail general, because how often soever such donee in tail be married, his issue in general by all and every such marriage is, in successive order, capable of inheriting the estate-tail per fortnam doni. Litt. § 14,15.
Tenant in Tail-special is where the gift is restrained to certain heirs of the donee's body, and does not go to all of them in general. And this may happen several ways. One is, where lands and tenements are given to a man and the heirs of his body, on Mary his now wife to be begotten: here no issue can inherit but such special issue as is engendered between them two ; not such as the husband may have by another wife ; and therefore it is called special tail. And here we may observe, that the words of inheritance (to him and his heirs) give him an estate in fee ; but they being heirs to be by him begotten, this makes it a fee-tail; and the person being also limited on whom such heirs shall be begotten (viz. Mary his present wife), this makes it a fee-tailspecial. See Litt. § 16, 27, 28, 29.
Estates in general and special tail are farther diversified by the distinction of sexes in such entails ; for both of them may either be in Tail-male or Tail-female. As if lands be given to a man and his heirs male of his body begotten, this is an estate in tail-male general; but if to a man and the heirs female of his body on his present wife begotten, this is an estate in tail-female special. And, in case of an entailmale, the heirs female shall never inherit, nor any derived from them ; nor, e converso, the heirs male, in case of a gift in tail-female. Litt. § 21, 22. Thus if the donee in tailmale hath a daughter, who dies leaving a son, such grandson in this case cannot inherit the estate-tail, for he cannot deduce his descent wholly by heirs male. Lilt. § 24. And as the heir male must convey his descent wholly by males, so must the heir female wholly by females. And therefore if a man hath two estates tail, the one in tail-male, and the other in tail-female ; and he hath issue a daughter, which daughter hath issue a son ; this grandson can succeed to neither of the estates, for he cannot convey his descent wholly either in the male or female line. 1 Inst. 25.
There are other estates-tail within the equity of the statute ; as if lands are given to a man and his heirs males or females of his body begotten, the issue male or female shall only inherit according to the limitation. By virtue of the statute, here the daughter may be heir by descent, though there be a son. But in the case of a purchase, Lord Coke says there cannot be a heir female where there is a son who is right heir at law. 1 Inst. 24, ] 64. But this doctrine is now disputed, if not over-ruled. See Heir, II. ad fin. And where there is no heir to take according to the gift, as when issue fails, the land shall revert to the donor, or descend to him that is to have it after the estate tail is spent. 1 Inst. 25.
As the word heirs is necessary to create a fee, so in further limitation of the strictness of feodal donation, the word body, or some other words of procreation, are necessary to make it a fee-tail, and ascertain to what heirs in particular the fee is limited. If, therefore, either the words of inheritance or words of procreation be omitted, albeit the others are inserted in the grant, this will not make an estate-tail. As if the grant be to a man and his issue of his body, to a man and his seed, to a man and his children, or offspring; all these are only estates for life, there wanting the words of inheritance, his heirs. 1 Inst. 20. So, on the other hand, a gift to a man and his heirs male or female, is an estate in fee-simple, and not in fee-tail; for there are no words to ascertain the body out of which they shall issue. Litt. § 31. 1 Inst. 27. Indeed, in last wills and testaments, wherein greater indulgence is allowed, an estate tail may be created by a devise to a man and his seed, or to a man and his heirs male; or by any words which show an intention to restrain the inheritance to the descendants of the devisee. 1 Inst. 9, 27. See Will.
Further, as to the effect of particular words in creating estates-tail.
If lands are given to the husband and wife, and to the heirs of their bodies, both of them have an estate in special tail, by reason of the word heirs, for the inheritance is not limited to one more than the other. Where lands and tenements are given to a man and his wife, and to the heirs of the body of the man, the husband hath an estate in general tail, and the wife an estate for life, as the word heirs relates generally to the body of the husband. And if the estate is made to the husband and wife, and to the heirs of the body of the wife by the husband begotten ; there the wife hath an estate in special tail, and the husband for term of life only, because the word heirs hath relation to the body of the wife, to be begotten by that particular husband. If an estate be limited to a man's heirs which he shall beget on his wife, it creates a special tail in the husband; but the wife will be entitled to nothing, &c. Litt. § 26, 28 ; Co. Litt. 22, 26.
Lands given to a man and woman unmarried, and to the Iieirs of their bodies, will be an estate in special tail, for they may marry. 1 Inst. 25; 10 Rep. 50. And though lands are given to a married man and another man's wife, and the heirs of their two bodies, it may be a good estate-tail, for the possibility of their intermarrying. 15 Hen. 7.
A general tail and a special tail may not be created at one and the same time ; if they are, the general, which is greater, will frustrate the special. 1 Inst. 28.
It is the word body, or other words amounting to it, which makes the entail; and a gift to the heirs male, or heirs female, without any thing further, is a fee-simple estate, because it is not limited of what body ; and hence a corporation cannot be seised in tail. 1 Inst. 13, 20, 27.
In a devise or last will an estate tail may be created without the word body ; also begotten shall be supplied and necessarily intended. Noy's Max. 101 ; 1 Insl. 26. If one gives lands to a man and his issue, or children of his body, without the words "his heirs" to convey the inheritance, he has but an estate for life ; though such words may be good enough to convey the inheritance in a will; as estates-tail by devise are always more favoured in law than estates-tail created by deeds. 1 Inst. 20.
The word heirs is necessary to create an estate-tail and inheritance by deed; and where an use was limited to A. B. and to his heirs male, lawfully to be begotten ; these last words imply that it must be heirs male of his body, because no other heir male can inherit by virtue of his grant but such who are lawfully begotten by the grantor. 7 Rep. 41. If a man makes a feoffment to the use of himself for life, remainder to the heirs male of his body, this is an estate-tail executed in him ; and so it is if he covenanted to stand seised in the same manner. 1 Mod. 159.
By a marriage settlement and fine levied, &c. to the use of the husband and wife for their joint lives, remainder to the heirs of the body of the wife by the husband to be begotten, remainder (the wife surviving the husband) to her for life, remainder to the right heirs of the husband ; this was held to be an estate-tail executed in the wife. Raym. 127 ; 3 Salic. 338. Land is conveyed to the use of a man and his wife for their lives, and after to their next issue male in tail, then to the use of the husband and wife, and of the heirs of their bodies begotten, they having no male issue; by this conveyance husband and wife are tenants in special tail executed, and when they have issue male, they will be tenants for life, remainder to their son in tail, the remainder to them in special tail. 1 Inst. 28.
Where a person having an estate in fee conveys it by lease and release to the use of himself for life, with remainder to trustees for their lives, and remainder to the heirs of his body, he hath an estate-tail in him ; but he is only tenant for life in possession: it would be otherwise if there had been no intermediate estate in the trustees for their lives. 2 Ld. Raym. 855. A man seised of land in fee makes a gift of it in tail, or lease for life, remainder to the right heirs male of the body of the donor ; this remainder, it is said, will be a fee-simple, and not an estate-tail. Dyer, 156. See Remainder. It the gift or grant of the land be to J. S. and his heirs, to hold to him and the heirs of his body, &c. here he will have
an estate in tail, and a fee-simple upon it. Litt. ch. 2; I Inst. 21. Lands are given to two brothers, Sec. and to the heirs of their bodies begotten ; during their lives they shall have joint estates, so that the survivor will have all for his life ; and after their deaths their heirs have estates in general tail by moieties in common one with another. 1 Inst 25 ; 1 Rep. 140.
When a remainder is limited to two, and the heirs male of their bodies, they have not joint but several estates-tail; and between baron and feme, it is said, several moieties maybe of an estate-tail, as well as of a fee-simple. Cro. Eliz. 220; Moor, 228; 2 Lit. Abr. 551. A feoffment was made to the use of the feoffor for life, remainder to W. R. his son and his heirs ; and for want of issue of him, remainder to the right heirs of the feoffor; adjudged W. R. hath only an estate in tail; for though the first words of the sentence, viz. to his son and his heirs, make a fee-simple, the subsequent words in the same sentence, i. e. for want of issue of him, make an estate-tail, by qualifying and abridging the same. 5 Mod. 266 ; 3 Salk. 337. See Hetl. 57 ; Dyer, 334; and tit. Remainder.
If a person gives land to A. for life, and after his death, without issue, then to another person; though here is an express estate for life given to A. the subsequent words make an estate-tail. But where lands are devised to A. during life, the remainder to trustees, remainder to his first son, &c.; and if A. dies without issue, then, &c. the limitation upon the devisee's death, it is said, will not give an estate in tail to A. but it shall be here intended, that if he died without having a son. 1 P. Wms. 605. A father having two sons devised his lands to his youngest son, and if he died without heirs, then to his eldest son and his heirs ; the youngest son had an estate-tail, because the devise to him, and if he died without heirs, is the same as if the testator had devised it in these words, viz. if he die without heirs of his body; for otherwise the remainder limited to the eldest son had been void, as the youngest son cannot die without heirs so long as the eldest is living. 1 Roll. Abr. 836. See also Executory Devise, Remainder.
In ejectment the case was, the father, having three sons, devised his lands to his second son and his heirs for ever; and for want of such heirs, then to the right heirs of the father ; then the father died, and his second son entered, and died without issue, living the eldest son ; it was resolved, that the second son had but an estate-tail, and that the devise over by these words, " and for want of such heirs," is void in point of limitation, for the testator's intent was that the lands should descend from himself, and not from his second son ; and the words " want of such heirs" could import no other than want of issue, &c.; so that the eldest son takes by descent in this case, and not by the will. 1 Salk. 233. See Executory Devise.
A person devised land to his wife for life, remainder to his son, and his heirs for ever; and if he died without heirs, the same to remain to his two daughters: in this case it was held in equity, that the rule is, where a remainder over is to one who may be the devisee's heir at law, such limitation will be good, and the first construed an estate-tail; for the generality of the word heirs shall be restrained to heirs of the body, since the testator could not but know that the devisee would not die without an heir, while the remainder-man or any of his issue continued. But where the second limitation is to a stranger, it is merely void, and the first is a fee-simple. Talbot s Chan. Ca. 2. See Executory Devise, Remainder.
There is also another species of entailed estates, now indeed grown out of use, yet still capable of subsisting in law; which are estates in libero maritagio, or frank-marriage. These are defined to be, where tenements are given by one man to another, together with a wife, who is the daughter or cousin of the donor, to hold in frank-marriage. Litt. § 17. Now by such gift, though nothing but the word frank-mar riage is expressed, the donees shall have the tenements to them, and the heirs of their two bodies begotten ; that is, they are tenants in special tail. For this one word, frankmarriage, does, ex vi termini, not only create an inheritance, like the word frankalmoign, but likewise limits that inheritance ; supplying not only words of descent, but of procreation also. Such donees in frank marriage are liable to no service but fealty ; for a rent reserved thereon is void, until the fourth degree of consanguinity be past between the issues of the donor and donee. Litt. §19, 20. See Frankmarriage.
III. The incidents to a tenancy in tail, under the stat. Westm. 2. are chiefly these:—1. That a tenant in tail may commit waste on the estate-tail, by felling timber, pulling down houses, or the like, without being impeached or called to account for the same. 2. That the wife of the tenant in tail shall have her dower, or thirds, of the estate-tail. 3. That the husband of a female tenant in tail may be tenant by the curtesy of the estate-tail. 4. That an estate-tail might, until recently, be barred, or destroyed by a fine, by a common recovery, or by lineal warranty descending with assets to the heir. 1 Inst. 224; 10 Rep. 38; and may now be barred by deed under the provisions of the late statute, see post, IV.
The establishment of this family law (as the statute de donis is properly styled by Pigott) occasioned, from time to time, infinite difficulties and disputes. Children grew disobedient when they knew they could not be set aside: farmers were ousted of their leases made by tenants in tail; for, if such leases had been valid, then, under colour of long leases, the issue might have been virtually disinherited: creditors were defrauded of their debts; for, if tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth. Innumerable latent entails were produced to deprive purchasers of the lands they had fairly bought; of suits in consequence of which our ancient books are full. And treasons were encouraged ; as estates-tail were not liable to forfeiture, longer than for the tenant's life. So that they were justly branded as the source of new contentions, and mischiefs unknown to the common law ; and almost universally considered as the common grievance of the realm. Co. Litt. 19; Moor, 156; 10 Rep. 38. But as the nobility was always fond of this statute, because it preserved their family estates from forfeiture, there was little hope of procuring a repeal by the legislature; and therefore, by the connivance of an active and politic prince, a method was devised to evade it. 2 Comm. c. 7.
About two hundred years intervened between the making of the statute de donis, and the application of common recoveries to this intent, in the twelfth year of Edward IV.; which were then openly declared by the judges to be a sufficient bar of an estate-tail. 1 Rep. 131 ; 6 Rep. 40. For though the courts had, so long before as the reign of Edward III., very frequently hinted their opinion that a bar might be effected upon these principles, yet it never was carried into execution ; till Edward IV. observing (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had on families, whose estates were protected by the sanctuary of entails, gave his countenance to this proceeding, and suffered Taltarum's case to be brought before the court; wherein, in consequence of the principles then laid down, it was in effect determined, that a common recovery suffered by tenant in tail should be an effectual destruction thereof. Year-book, 12 Edw. 4. 14. 19; Fitz. Abr. tit. Faux Recov.; 20 Bro. Abr.; Ibid. 30; tit. Recov. in Value, 19; tit. Taile, 36. See further, Fine of Lands, Recovery.
This expedient having greatly abridged estates-tail, with regard to their duration, others were soon invented to strip
them of other privileges. The next that was attacked was their freedom from forfeitures for treason. For, notwithstanding the large advances made by recoveries, in the compass of about threescore years, towards unfettering these inheritances, and thereby subjecting the lands to forfeiture, the rapacious prince then reigning, finding them frequently resettled in a similar manner to suit the convenience of families, had address enough to procure a statute, (26 Hen. 8. c. 13.) whereby all estates of inheritance (under which general words estates-tail were covertly included) are declared to be forfeited to the king upon any conviction of high treason. 2 Comm. c. 7.
The next attack which they suffered in order of time, was by the 32 Hen. 8. c. 28. whereby certain leases made by tenants in tail, which do not tend to the prejudice of the issue, were allowed to be good in law, and to bind the issue in tail. See Lease, II. But they received a more violent blow, in the same session of parliament, by the construction put upon the statute of fines, (4 Hen. 7. c. 24.) by 32 Hen. 8. c. 36. which declared a fine duly levied by tenant in tail to be a complete bar to him and his heirs, and all other persons claiming under such entail. This was evidently agreeable to the intention of Henry VII. whose policy it was (before common recoveries had obtained their full strength and authority) to lay the road as open as possible to the alienation of landed property, in order to weaken the overgrown power of his nobles. But as they, from the opposite reasons, were not easily brought to consent to such a provision, it was therefore couched, in his act, under covert and obscure expressions. And the judges, though willing to construe that statute as favourably as possible for the defeating of entailed estates, yet hesitated at giving fines so extensive a power by mere implication, when the statute de donis had expressly declared, that they should not be a bar to estates-tail. But the statute of Henry VIII. when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention. Yet, in order to preserve the property of the crown from any danger of infringement, all estates-tail created by the crown, and of which the crown has the reversion, were excepted out of this statute. And the same was done with regard to common recoveries, by the 34 & 35 Hen. 8. c. 20. which enacted, that no feigned recovery had against tenants in tail, where the estate was created by the crown, and the remainder or reversion continues still in the crown, should be of any force and effect. Which was allowing, indirectly and collaterally, their full force and effect with respect to ordinary estates-tail, where the royal prerogative was not concerned. 1 Inst. 372; 2 Comm. c. 7.
Lastly, by the 33 Hen. 8. c. 39. § 75. all estates-tail are rendered liable to be charged for payment of debts due to the king by record or special contract; as since, by the bankrupt laws, they are also subjected to be sold for the debts contracted by a bankrupt. See the clauses in the recent statute, post, IV. And by the construction put on the 43 Eliz. c. 4. an appointment by tenant in tail cf the lands entailed, to a charitable use, was held good, without fine or recovery. See further, Cltaritable Uses.
Estates-tail, being thus by degrees unfettered, are reduced again to almost the same state, even before issue born, as conditional fees were in at common law, after the condition was performed, by the birth of issue. For, first, the tenant in tail was, until recently, enabled to alien his lands and tenements by fine, by recovery, or by certain other means, and he may now do so by deed, fiost, IV.; and thereby may defeat the interest as well of his own issue, though unborn, as also of the reversioner, except in the case of the crown. Secondly, he is liable to forfeit them for high treason. And, lastly, he may charge them with reasonable leases, and also with such of his debts as are due to the crown, on specialties, or have been contracted with hi* fellow subjects in a course of extensive commerce. 2 Comm. c.7.
An estate-tail cannot merge by the accession of the feesimple to it. But it has been adjudged, that two fees immediately expectant upon one another, (as where a man is tenant in tail and remainder in fee to the tenant in tail,) cannot subsist in the same person; and the statute de donis having made estates-tail a kind of particular estates, they must, like all other such estates, be subject to merger and extinguishing, when united with the absolute fee. 8 Rep. 74; 1 Salic. 338.
By the recent statute, base fees, when united with the immediate reversions, are to be enlarged instead of merging in the latter, as they formerly would have done. See post, IV.
IV. By the 3 & 4 Wm. 4. c. 74. fines and common recoveries have been abolished. See the clauses of the act applicable to each of these modes of assurance under the titles Fine of Land, and Recovery.
By § 14. all warranties of lands after the 31st December 1833, made or entered into by any tenant in tail thereof shall be absolutely void against the issue in tail, and all persons whose estates are to take effect after the determination or in defeasance of the estate tail.
By § 15. after the 31st Dec. 1833, every actual tenant in tail, whether in possession, remainder, contingency, or otherwise, shall have full power to dispose of for an estate in feesimple absolute, or for any less estate, the lands entailed, as against all persons claiming the lands entailed by force of any estate-tail which shall be vested in or might be claimed by, or which but for some previous act would have been vested in or might have been claimed by, the person making the disposition, at the time of his making the same, and also as against all persons, including his majesty, whose estates are to take effect after the determination or in defeasance of any such estate-tail; saving always the rights of all persons in respect of estates prior to the estate-tail in respect of which such disposition shall be made, and the rights of all other persons, except those against whom such disposition is by the act authorized to be made. See § 40. post.
A tenant for life in possession, with a remote remainder in tail, could by a recovery with double voucher have barred such entail, but without prejudice to the intermediate interests between his estate for life and remainder in tail. 1 T. R. 738 ; 6 Br. P. C. 338.
§ 16. Provides that where, under any settlement made before the passing of the act, any woman shall be tenant in tail of lands within the provisions of the 11 Hen. 7. c. 20. the power of disposition therein-before contained as to such lands shall not be exercised by her except with such assent as would under the said act have rendered valid a fine or common recovery levied or suffered by her of such lands.
Provided (§ 17.) except as to lands in settlements before that act, the 11 Hen. 7. c. 20. shall be repealed.
§ 18. Provides that the power of disposition therein before contained shall not extend to tenants of estates-tail who, by the 34 & 35 Hen. 8. c. 20. (relating to lands where the reversion is in the crown,) or by any other act are restrained from barring their estates-tail, or to tenants in tail after possibility of issue extinct.
§ 19. After the 31st Dec. 1833, in every case in which an estate-tail in any lands shall have been barred and converted into a base fee, either before or on or after that day, the person who, if such estate-tail had not been barred, would have been actual tenant in tail of the same lands shall have full power to dispose of such lands as against all persons, including his majesty, whose estates are to take effect after the determination of the base fee into which the estate-tail shall have been converted, so as to enlarge the base fee into a fee-simple absolute ; saving always the rights of all persons
in respect of estates prior to the estate-tail which shall have been converted into a base fee, and the rights of all other persons, except those against whom such disposition is by the act authorized to be made.
§ 20. That nothing in the act contained shall enable any person to dispose of any lands entailed in respect of any expectant interest which he may have as issue inheritable to any estate-tail therein.
§ 21. That if a tenant in tail of lands shall make a disposition of the same, under the act, by way of mortgage, or for any other limited purpose, such disposition shall, to the extent of the estate thereby created, be an absolute bar in equity as well as at law to all persons as against whom such disposition is by the act authorized, notwithstanding any intention to the contrary expressed or implied in the deed by which the disposition may be effected : provided that if the estate created by such disposition shall be only an estate pour autre vie, or for years absolute or determinable, or if, by a disposition under the act by a tenant in tail of lands, an interest, charge, lien, or incumbrance shall be created without a term of years absolute or determinable, or any greater estate, for securing or raising the same, then such disposition shall in equity be a bar only so far as may be necessary to give full effect to the mortgage, or to such other limited purpose, or to such interest, &c, notwithstanding any intention to the contrary expressed or implied in the deed by which the disposition may be effected.
By § 22. the owner of the first existing estate under a settlement, prior to an estate tail under the same settlement, is to be the protector of the settlement.. And the following sections, from § 23. to 31. contain a variety of provisions with respect to whom shall be the protector of the settlement, according to the circumstances of the case.
§ 32. Any settlor entailing lands may appoint, by the settlement by which the lands shall be entailed, any number of persons in esse, not exceeding three, and not being aliens, to be protector of the settlement in lieu of the person who would have been the protector if this clause had not been inserted, and either for the whole or any part of the period for which such person might have continued protector, and by means of a power to be inserted in such settlement to perpetuate during the whole or any part of such period the protectorship of the settlement in any one person or number of persons in esse, and not being an alien or aliens, whom the donee of the power shall think proper by deed to appoint protector of the settlement in the place of any one person or number of persons who shall die or shall by deed relinquish his or their office of protector; and the person or persons so appointed shall, in case of there being no other person then protector of the settlement, be the protector, and shall, in case of there being any other person then protector of the settlement, be protector jointly with such other person : provided that by virtue of any such appointment the number of the persons to compose the protector shall never exceed three : provided further, that every deed by which a protector shall be appointed under a power in a settlement, and every deed by which a protector shall relinquish his office, shall be void, unless inrolled in Chancery within six calendar months after the execution thereof: provided further, that the person who but for this clause would have been sole protector of the settlement may be one of the persons to be appointed protector under this clause, if the settlor shall think fit, and shall, unless otherwise directed by the settlor, act as sole protector if the other persons constituting the protector shall have ceased to be so by death or relinquishment of the office by deed, and no other person shall have been appointed in their place.
§ 33. In cases of lunacy of protectors, the lord chancellor, or lord keeper, or lords commissioners, or other persons intrusted with lunatics or in cases of treason or felony, &c. the Court of Chancery shall be the protector of the settlement.
§ 34. If at the time when any person, actual tenant in tail of lands under a settlement, but not entitled to the remainder or reversion in fee immediately expectant on the determination of his estate tail, shall be desirous of making under this act a disposition of the lands entailed, there shall be a protector of such settlement, then the consent of such protector shall be requisite to enable such actual tenant in tail to dispose of the lands entailed to the full extent to which he is therein-before authorized to dispose of the same ; but such actual tenant in tail may, without such consent, make a disposition under this act of the lands entailed, which shall be good against all persons who, by force of any estate tail which shall be vested in or might be claimed by, or which but for some previous act or default would have been vested in or might have been claimed by, the person making the disposition at the time of his making the same, shall claim the lands entailed.
§ 35. Provided, where an estate tail shall have been converted into a base fee, in such case, so long as there shall be a protector of the settlement by which the estate tail was created, the consent of such protector shall be requisite to enable the person who would have been tenant of the estate tail if the same had not been barred to exercise, as to the lands in respect of which there shall be such protector, the power of disposition thereinbefore contained.
§ 36. Any device, shift, or contrivance by which it shall be attempted to control the protector of a settlement in giving his consent, or to prevent him in any way from using his absolute discretion in regard to his consent, and also any agreement entered into by the protector of a settlement to withhold his consent, shall be void; and the protector of a settlement shall not be deemed to be a trustee in respect of his power of consent; and a court of equity shall not control or interfere to restrain the exercise of his power of consent, nor treat his giving consent as a breach of trust.
§ 37. The rules of equity in relation to dealings and transactions between the donee of a power and any object of the power in whose favour the same may be exercised, shall not be held to apply to dealings and transactions between the protector of a settlement and a tenant in tail under the same settlement, upon the occasion of the protector giving his consent to a disposition by a tenant in tail under this act.
§ 38. When a tenant in tail of lands under a settlement shall have already created or shall hereafter create in such lands, a voidable estate in favour of a purchaser for valuable consideration, and shall afterwards under this act, by any assurance other than a lease not requiring inrolment, make a disposition of the lands in which such voidable estate shall be created, such disposition, whatever its object may be, and whatever the extent of the estate intended to be thereby created, shall, if made by the tenant in tail with the consent of the protector (if any) of the settlement, or by the tenant in tail alone, if no such protector, have the effect of confirming such voidable estate in the lands thereby disposed of to its full extent as against all persons except those whose rights are saved by this act; but if at the time of making the disposition there shall be a protector of the settlement, and such protector shall not consent to the disposition, and the tenant in tail shall not without such consent be capable under this act of confirming the voidable estate to its full extent, then such disposition shall have the effect of confirming such voidable estate so far as such tenant in tail would then be capable under this act of confirming the same without such consent: provided, that if such disposition shall be made to a purchaser for valuable consideration, who shall not have express notice of the voidable estate, then the voidable estate shall not be confirmed as against such purchaser and persons claiming under him.
§ 39. If abase fee in any lands, and the remainder or reversion in fee in the same lands, shall at the time of the passing of this act, or at any time afterwards, be united in the same
person, and at any time after the passing of this act there shall be no intermediate estate between the base fee and the remainder or reversion, then the base fee shall not merge, but shall be ipso facto enlarged into as large an estate as the tenant in tail, with the consent of the protector, if any, might have created by any disposition under this act, if such remainder or reversion had been vested in any other person.
§ 40. Every disposition of lands under this act by a tenant in tail thereof shall be effected by some one of the assurances (not being a will) by which such tenant in tail could have made the disposition if his estate were an estate at law in fee simple absolute: provided, that no disposition by a tenant in tail shall be of any force either at law or in equity, under this act, unless made or evidenced by deed; and no disposition by a tenant in tail resting only in contract, either express or implied, or otherwise, and whether supported by a valuable or meritorious consideration or not, shall be of any force at law or in equity under this act, notwithstanding such disposition shall be made or evidenced by deed; and if the tenant in tail making the disposition shall be a married woman, the concurrence of her husband shall be necessary to give effect to the same ; and any deed which may be executed by her for effecting the disposition shall be acknowledged by her as therein-after directed.
§ 41. Every assurance by a tenant in tail, except a lease not exceding twenty-one years at a rack rent, or not less than five sixths of a rack rent, shall be inoperative unless inrolled in Chancery within six months.
§ 42. The consent of the protector may be given by the same assurance or by a distinct deed.
§ 43. And if the protector of a settlement shall, by a distinct deed, give his consent to the disposition of a tenant in tail, it shall be considered he has given an unqualified consent, unless in such deed he shall refer to the particular assurance by which the disposition shall be effected, and shall confine his consent to the disposition thereby made.
§ 44. The protector shall not revoke his consent.
§ 45. A married woman being protector may consent as a feme sole.
§ 46. The consent of a protector by distinct deed shall be void, unless inrolled with or before the assurance.
By § 47. courts of equity excluded from giving any effect to dispositions by tenants in tail, or consents of protectors of settlements, which in courts of law would not be effectual.
§ 48. The lord chancellor, &c. where a protector is lunatic, shall have power to consent to a disposition by a tenant in tail, and to make such orders as shall be thought necessary; and if any other person shall be joint protector the disposition not to be valid without his consent.
And (§ 49.) the order of the lord chancellor, &c. shall be evidence of consent.
§ 50. All the previous clauses in the act, so far as circumstances and the different tenures will admit, shall apply to lands held by copy of court roll, except that a disposition of any such lands under this act by a tenant in tail thereof, whose estate shall be an estate at law, shall be made by surrender, and except that a disposition of any such lands under this act by a tenant in tail thereof, whose estate shall be merely an estate in equity, may be made either by a surrender or by a deed as thereinafter provided, and except so far as such clauses are otherwise altered or varied by the clauses thereinafter contained.
§ 51 & 52. relate to the verity of the consent of the protector of copyhold lands in the rolls of the manor.
§ 53. A tenant in tail of lands held by copy of court roll, whose estate shall be merely an estate in equity, shall have full power by deed to dispose of such lands under this act in the same manner as he could have done if they had been of freehold tenure; and all the previous clauses in this act shall, so far as circumstances will admit, apply to the lands in respect of which any such equitable tenant in tail shall avail himself of this present clause; and t lie deed by which the disposition shall be effected shall be entered on the court rolls of the manor of which the lands thereby disposed of may be parcel; and if there shall be a protector to consent to the disposition, and such protector shall give his consent by a distinct deed, the consent shall be void unless the deed of consent be executed by the protector either on or at any time before the day on which the deed of disposition shall be executed by the equitable tenant in tail; and such deed of consent shall be entered on the court rolls; and it shall be imperative on the lord of the manor, or his steward, or the deputy of such steward, when required so to do, to enter such deed or deeds on the court rolls, and he shall indorse on each deed so entered a memorandum, signed by him, testifying the entry of the same on the court rolls: provided always, that every deed by which lands held by copy of court roll shall be disposed of under this clause, by an equitable tenant in tail thereof, shall be void against any person claiming such lands, or any of them, for valuable consideration under any subsequent assurance duly entered on the court rolls of the manor of which the lands may be parcel, unless the deed of disposition by the equitable tenant in tail be entered on the court rolls of such manor before the subsequent assurance shall have been entered.
§ 44. Inrolment not necessary as to copyholds, otherwise than by entry on the court rolls. TENANT, tenens, from the Lat. tenere, to hold.] One that holds or possesses lands or tenements by any kind of title, either in fee, for life, years, or at will. The word in law is used with divers additions ; thus, tenant in dower is she that possesses land by virtue of her dower. Tenant by statute-merchant, he that holds land by virtue of a statute forfeited to him. Tenant in frank-marriage, he that holds lands or tenants by virtue of a gift thereof made to him upon marriage between him and his wife. Tenant by the curtesy, he that holds for his life, by reason of a child begotten by him of his wife, being an inheritrix, and born alive. Tenant by elegit, that holds by virtue of the writ called an elegit. Tenant in mortgage, that holds by means of a mortgage. Tenant by the verge in ancient demesne, who is admitted by the rod in the court of ancient demesne. Tenant by copy of court-roll, who is admitted tenant of any lands, &c. within a manor, which time out of mind had been de misable according to the custom of the manor. Tenant by charter, that holdeth by feoffment in writing or other deed. There were also tenants by knights-service, tenant in burgage, tenant in socage, tenant in frank-fee, tenant in villeinage. So there is tenant in fee-simple ; tenant in fee-tail; tenant at the will of the lord, according to the custom of the manor ; tenant at will by the common law ; tenant upon sufferance ; tenant of estate of inheritance; tenant in chief, that holdeth of the king in right of his crown; tenant of the king, he that holds of the person of the king, or has some honour ; very tenant, that holds immediately of his lord, Kitch. fol. 99 ; tenant peravail, the lowest tenant of the fee, who is tenant to one who holds over of another. F. N. B. 135.
So there are also joint-tenants, that have equal right in lands and are tenants by virtue of one title; tenants in common, that have equal right, but hold by divers titles ; particular tenant, as tenant for years, for life, &c. that holds only for his term; sole tenant, he that hath no other joined with him; several tenant, as opposite to joint-tenant, or tenant in common.
So there was tenant to the precipe, m the case of fines and recoveries; and there is tenant in demesne, which is he that holdeth the demesnes of a manor for a rent, without service; tenant on service, he that holdeth by service; tenants by execution, that hold lands by virtue of an execution upon any statute, recognizance, &c. with divers others. Cornell.
See this Dictionary, under the several titles relative to the estates of such tenant; and Tenure.
Tenants In Common are such as hold by several and distinct titles, but by unity of possession, because none knoweth his own severalty, and therefore they all occupy promiscuously. Lit. § 292.
This tenancy therefore happens, where there is a unity of possession merely, but perhaps an entire disunion of interest, of title, and of time. For if there be two tenants in common of lands, one may hold his part in fee-simple, the other in tail or for life, so that there is no necessary unity of interest. One may hold by descent, the other by purchase; or the one by purchase from A., the other by purchase from B.; so that there is no unity of title. One's estate may have been vested fifty years, the other's but yesterday; so there is no unity of time. The only unity there is is that of possession ; and for this Littleton gives the true reason, because no man can certainly tell which part is his own; otherwise even this would be soon destroyed. 2 Comm. c. 12.
Tenancy in common may be created, either by the destruction of two estates in joint-tenancy and coparcenary, or by special limitation in a de£d. By the destruction of the two estates mentioned, is intended such destruction as does not sever the unity of possession, but only the unity of title or interest: as if one of two joint-tenants m fee aliens his estate for the life of the alienee, the alienee and the other joint-tenant are tenants in common, for they now have several titles, the other joint-tenant by the original grant, the alienee by the new alienation; and they also have several interests, the former joint-tenant in fee-simple, the alienee for his own life only. Lit. § 293. So if one joint-tenant give his part to A. in tail, and the other gives his to B. in tail, the donees are tenants in common, as holding by different titles and conveyances. Lit. § 292. If one of two parceners alienes, the alienee and the remaining parcener are tenants in common, because they hold by different titles, the parcener by descent, the alienee by purchase. Lit. § 309. So likewise if there be a grant to two men or two women, and the heirs of their bodies, here the grantees shall be jointtenants of the life-estate, but they shall have several inheritances, because they cannot possibly have one heir of their two bodies, as might have been the case had the limitation been to a man and a woman, and the heirs of their bodies begotten : and in tins and the like cases their issues shall be tenants in common, because they must claim by different
titles, one as heir of A. and the other as heir of B., and those too not titles by purchase but descent. See Lit. § 283. In short, whenever an estate in joint-tenancy or coparcenary is dissolved, so that there be no partition made, but the unity of possession continues, it is turned into a tenancy in common. 2 Comm. c. 12.
A tenancy in common may also be created by express limitation in a deed. But here care must be taken not to insert words which imply a joint estate ; and then if lands be given to two or more, and it be not joint-tenancy, it must be a tenancy in common. Land given to two, to be holden the one moiety to one, and the other moiety to the other, is an estate in common; and if one grants to another half his land, the grantor and grantee are also tenants in common : because joint-tenants do not take by distinct halves or moieties; and by such grants the division and severalty of the estate is so plainly expressed that it is impossible they should take a joint interest in the whole of the tenements. But a devise to two persons to hold jointly and severally, has been held to be a joint-tenancy, because that is necessarily implied in the word "jointly ;" the word " severally" perhaps only implying the power of partition: and an estate given to A. and B. equally to be divided between them, though in deeds it hath been said to be a joint-tenancy (for it implies no more than the law has annexed to that estate, viz. divisibility), yet in wills it is certainly a tenancy in common, because the devisor may be presumed to have meant what is most beneficial to both the devisees, though his meaning is imperfectly expressed. See 1 Eq. Abr. 291;
1 P. fVms. 17; 3 Rep. 39 ; 1 Vent. 32. And this nicety in the wording of grants makes it the most usual as well as the safest way (in them as well as in wills), when a tenancy in common is meant to be created, to add express words of exclusion as well as description, and limit the estate to A. and B., to hold as tenants in common and not as joint-tenants.
It is noticed under title Joint-Tenants, that their tenure, though formerly favoured in law, is now considered as odious. In consequence of this, in wills, the expressions, equally to be divided, share and share alike, respectively between and amongst, have been held to create a tenancy in common.
2 Atk. 121 ; 2 Bro. C. it. 15 ; 1 P. Wms. 14. And there seems but little doubt that the same construction would now be put even upon the word severally. But these words certainly are only evidence of intention, aud will not create a tenancy in common, where the contrary, from the other parts of the will, appears to be the manifest, intention of the testator.
3 Bro. C. #.215.
The words, equally to be divided, make a tenancy in common in surrenders of copyholds, and also in deeds which derive their operation from the statute of uses. 1 P. Wms. 14; 1 Wth. 341 ; 2 Vcs. 257.. And though it has formerly been suggested (see 1 yes. 165 ; 2 Ves. 257) that these words are not sufficient to create a tenancy in common, in common law conveyances, yet there seems but little doubt that, in such a case, nothing but invincible authority would now induce the courts to adopt that opinion, and to decide in favour of a joint-tenancy. 2 Comm. c. 12. p. 194, n. It is, however, to be observed, that though the words, equally to be divided, share and share alike, and such like, are in general construed to create a tenancy in common, yet it is not by force of the words merely, but because it appears to be the intention of the party that there should be no survivorship. 2 Roll. Abr. 90; Salk. 227, 392 ; 2 Ves. 258. See Jointtenants.
As to the incidents attending a tenancy in common.—Tenants in common (like joint-tenants) are compellable by the 31 Hen. 8. c. 1 ; 32 Hen. 8. c. 32. to make partition of their lands, which they were not at common law. See Jointtenants, III. They properly take by distinct moieties, and have no entirety of interest; and therefore there is no survivorship between tenants in common. Their other incidents are such as merely arise from the unity of possession, and are therefore the same as appertain to joint-tenants merely upon that account. Such as being liable to reciprocal actions of waste, and of account, by the statutes Weslm. 2. c. 22; 4 Ann. c. 16; and see 8 T. R. 145. For by the common law no tenant in common was liable to account with his companion for embezzling the profits of the estate; though, if one actually turns the other out of possession, an action of ejectment will lie against him. 1 Inst. 199, 200. See 2 Comm. c. 12.
For the clause of the recent statute of limitations, with respect to possession, or receipt of rent by one tenant in common, see Limitation of Actions, II. 1.
As for other incidents of joint-tenants, which arise from the privity of title, or the union and entirety of interest, (such as joining or being joined in actions, unless in the case where some entire or indivisible thing is to be recovered,) these are not applicable to tenants in common, whose interests are distinct, and whose titles are not joint, but several. Litt. §311; 1 Inst. 197 ; 2 Comm. c. 12.
Estates in common can only be dissolved two ways. 1. By uniting all the titles and interests in one tenant, by purchase or otherwise; which brings the whole to one severalty. 2. By making partition between the several tenants in common, which gives them all respective severalties. For indeed tenancies in common differ in nothing from sole estates, but merely in the blending and unity of possession.
A. and B., tenants in common, having agreed to divide their property, the occupier of the part allotted to A. (who after the agreement had paid his whole rent to A.) was not allowed, in ejectment brought against him by A., to object that a partition deed was not actually executed. 1 B. § B. 11.
In a suit in equity for partition by lessees for years, it was held that no objection can be made to such partition from the minuteness of the interest, or inconvenience, or difficulty, or from the reluctance of the other tenants in common. 1 Ves. $ B. 552.
A tenant in common may devise or alien, or charge his part in the same manner and by the same deeds of conveyance as if he had been solely seised of the entirety.
A tenant in common cannot as such release to his co-tenant, as they hold, as already stated, by several and distinct titles, but he must convey his interest by lease and release, &c. as he would do to a perfect stranger.
See further, Joint-tenants.
TENANTS AT WILL. See Will, Estates at.
TENANTS BY SUFFERANCE. See Sufferance.
TENDE. To tender or offer; it is mentioned in our old books ; as, to tend a traverse, an averment, &c. Britton, c. 76 ; Staundf. Preerog. 16.
TENDER, Fr. tendre."] The offering of money or any other thing in satisfaction; or circumspectly to endeavour the performance of a thing; as a tender of rent is to offer it at the time and place when and where it ought to be paid. Also it is an act done to save the penalty of a bond before action brought, &c. Termes de la Ley, 557. See Pleading, particularly I. 4; Money into Court. As to tender of rent, see Rent.
1. In what Actions allowed. —A tender may be made in actions of assumpsit and debt.
But a tender is not pleadable to an action for unliquidated damages. 4 A r . Sf M. 200 ; and see Ld. Raym. 255 ; 1 Saund. 33 (b)
So upon a bare covenant for the payment of money, the defendant may plead a tender. 7 Taunton, 486.
So in some cases of involuntary trespasses to lands, not committed by the party himself, but by his cattle, a tender of amends may be made by the 21 Jac. 1. c. 16. § 5.
There are a variety of statutes which authorize a tender of amends, where otherwise it would not have been allowable.
As 11 Geo. 2. c. 19. § 20. in cases of distress for rent; 17 Geo. 2. c. 38. § 10. in cases of distress for poor's rates; 24 Geo. 2. c. 44. in actions against justices of the peace ; 7 & 8 Geo. 4. c. 53. in actions against excise officers; and 3 & 4 Wm. 4. c. 53. in actions against custom-house officers.
2. To and by whom to be made. —Tender of money on a bond is to be made to the person of the obligee at the day appointed, to save the penalty and forfeiture of the bond, and it ought to be done before witnesses; though, if the obligor be sued afterwards, he must still pay it. But if the obligor be to do any collateral thing, or which is not part of the obligation, as to deliver a horse, &c. and the obligor offer to do his part, and the obligee refuseth it, the condition is performed, and the obligation discharged for ever. 1 Inst. 207, 208.
A tender to one of several joint creditors is a tender to all. Thus, if A., B., and C, have a joint demand, and C. has a separate demand on D. ; and D. offers A. to pay him both the debts, which A. refuses, without objecting to the form of the tender on account of his being only entitled to the joint demand, D. may plead this tender in bar of an action for the joint demand; and should state it as a tender to A., B., and C. 3 T. R. 684.
A tender to an authorized agent is a tender to his principal. 1 Camp. 477; and see 1 Esp. 349. So a tender to a managing clerk is good though he should have received orders not to accept it. 1 Marsh. 55 ; S. C. 5 Taunt. 307 ; and see 3 C.Sf P. 453; M. % M. 238. But a tender made to the managing clerk, who at the time disclaims authority from his master to receive the debt, is insufficient. 1 N. <$¦ M. 898.
It would seem that a tender must be taken to be made on behalf of the person who owes the money. 2 C. <$• P. 50.
A tender by the agent of the defendant of the whole sum demanded by the plaintiff, by pulling out his pocket-book, and offering, if he would go into a neighbouring public-house, to pay it, which the plaintiff refused to take, is good, although the agent is only authorized by the defendant to tender a sum short of the whole sum demanded, and offers the rest at his own risk. 2 M. % S. 86.
3. When and how it must be made. —Every tender at the common law, or which is given by statute, must be made before the writ sued out.
If a tender be in fact made before the bringing of the action, though, by the teste of the writ, it may appear to have been afterwards, (as if tender in vacation and teste of preceding term,) the exact time when the writ was in fact sued out may be shown in pleading, or sometimes given in evidence contrary to the teste. But if a writ be issued on the same day the tender is made, though subsequent thereto, it seems that the defendant can no way avail himself by pleading the prior tender; as there is no fraction of a day in law. See Pleading, Process.
It is no answer to a plea of tender before the exhibiting of the plaintiff's bill, that the plaintiff had before such tender retained an attorney, and instructed him to sue out a writ against the defendant; and that the attorney had accordingly applied, before the tender, for such writ, which was afterwards sued out. 8 T. R. 629.
By the 56 Geo. 3. c. 68. gold coin was declared to be the only legal tender; and no tender of silver coin is to be legal beyond 40s.; but by the 3 & 4 Wm. 4. c. 6. § 98. notes of the Bank of England, payable to the bearer on demand, are made a legal tender for any sum above 51. so long as the Bank continues to pay in gold, except at the Bank itself, and its branch establishments.
But although, strictly speaking, a legal tender must be either gold or Bank of England notes, according to the above statutes, yet a tender in country bank notes, if not objected to on that account, will be sufficient. 2 Tyr. 92. And see 3 T. R. 554; 1 Burr. 459.
Tender may be of money in bags, without showing or telling it, if it can be proved there was the sum to be tendered; it being the duty of him that is to receive the money to put out and tell it. 5 Rep. 115. Though where the person held the money on his arm in a bag, at the time of offering, this was adjudged no good tender, for it might be counters or base money. Noy, 74.
If a tender is made of more than is due, it is good ; and the party to whom tendered ought to take out what belongs to him. 5 Rep. 114. But tender of a larger sum, requiring change, is not a good tender for a smaller sum. 6 Taunt. 336 ; 2D. $ R. 305.
So a tender of a bank-note for 5/. desiring the creditor to take 31. 10s. is clearly not a good tender. 3 Camp. 70.
But a tender of a larger sum, requiring change, is good, if the plaintiff objects only on the ground that he is entitled to more, and not because he has not change. 5 Dow. <$¦ llijl. 289 ; and see 1 Gow's Ca. Ill; Peake's Ca. 179.
The money must be actually produced at the time of tender, or the production must be dispensed with by the express declaration, or some equivalent act of the creditor. 10 East, 101 ; 2 M. Sf S. 86 ; 4 Esp. 68.
Thus, it has been held that if the defendant be willing to pay 10/., and a third person offers to go up stairs and fetch that sum, and is prevented by plaintiff saying, "he cannot take it," this is a good tender. 2 Carr. fy P. 77 ; and see 7 Moo. 59 ; 2 C. # J. 15 ; 4 B. $ Ad. 546 ; 1 Bing. N. C. 253.
A tender must be unconditional; and therefore, going with the money in hand to make a tender, and demanding whether the creditor has a receipt stamp, and receiving an answer in the negative, without an actual offer of the money, will not support a plea of tender. 7 D. $ R. 119; and see 1 C. Sr P. 257.
So if a person tender money, but will not pay it unless he has a receipt in full of all demands, such a tender is bad. 1 C. $ P. 419 ; 5 Esp. 48.
So a tender was held not good where the debtor at the time required the creditor to sign a receipt, expressing that the sum tendered was the balance due. (loir, 213 ; and see 4 Camp. 156 ; 6 C. 8f P. 237.
But if on a tender being made, the creditor insists on receiving a larger sum of money, he cannot afterwards object to the formality of the tender on account of the debtor having required a receipt. Peake, 179.
4. Demand after Tender. —A right to damages on account of the non-payment of a debt, or non-performance of a duty, may, after being taken away by a tender and refusal, be revived again by a demand subsequent to the tender^ and refusal; a new cause of action arises from the non-payment or nonperformance thereof upon such demand. And therefore the plaintiff may reply such subsequent demand and refusal by the defendant, which, if proved, the plaintiff must have a verdict. Brotvnl. 7.
But if to a plea of tender, the plaintiff replies a subsequent demand and refusal, it is incumbent on him to prove that, after the tender admitted in the pleadings, he demanded of the defendant the exact sum specified as having been before tendered and refused. 1 Camp. 181.
5. Of pleading a Tender. —Wherever the debt or duty arises at the time of the contract, and is not discharged by a tender and refusal, it is not enough for the party who pleads the tender, to plead a tender and refusal, and uncore prist, (that he is still ready,) but he must also plead tout temps prist, (that he was always ready). Salk. 622 ; 12 Mod. 152 ; Carth. 413.
On award, that the defendant should pay money on such a day, and at such a place ; the defendant pleaded that he tendered the money at the day and place ; and because he did not set forth that he continued there ready to pay it at the last instant of the day till after sun-setting, &c. it was held ill. 2 Cro. 243.
VOL. II.
By the 4 & 5 Ann. c. 16. § 12. the plea of solvit post diem is granted to an action on bond; but a tender and refusal of principal and interest at a subsequent day cannot be pleaded, as not being within the equity of the statute. For such construction would be prejudicial; as it would empower the obligor, at any time, to compel the obligee to take his money without notice. Bull.Ni. Pri. 171.
A plea offender after the day of payment of a bill of exchange, and before action brought, is not good; though the defendant aver that he was always ready to pay from the time of the tender, and that the sum tendered was the whole money then due, owing, or payable to the plaintiff in respect of the bill, with interest from the time of the default, for the damages sustained by the plaintiff by reason of the non-performance of the promise. 8 East, 168.
Every requisite which is in a particular case necessary to the validity of a tender, must, in pleading such tender, be shown to have been complied with, else the plea is not good. Salk. 624.
A defendant cannot be permitted to plead non assumpsit as to the whole, and a tender as to part; because, if the general issue be found for the defendant, it will appear on record that no debt is due, though something is admitted by the defendant. 4 T. R. 194. But a tender to the whole declaration is good ; and it is usual to plead, as to all, except the sum tendered, non assumpsit; and as to that sum, a tender. And a defendant may plead not guilty, and a tender of amends, in trespass. 2 Black. 1089 ; Sellon's Pr.
And a tender may be pleaded after a judge's order to plead issuably. 1 Burr. 59.
In case of a plea of tender as to part, and non assumpsit as to the residue, and the issue on the tender being found for the defendant, the balance proved is under 40s.; yet the defendant, though within the jurisdiction of the county court of Middlesex, is not entitled to costs, under 23 Geo. 2. c. 33. §19. Nor in case of a set-off having the same effect. Doug. 448. See Impey, K. B.
To an avowry for rent, the plaintiff in replevin may plead a tender and refusal, without bringing money into court: because, if the distress were not rightfully taken, the defendant must answer the plaintiff his damages. Sail:. 584. But if the distress were rightfully taken, the plaintiff cannot plead tender of rent and costs in bar of an avowry for rent in any case, unless the distress was made of corn, grass, &c. growing on the premises, and then such plea is given by 11 Geo. 2. c. 19. § 9.
There is a difference in pleading a tender in action of debt and in action on the case. In an action of debt, the defendant ought to conclude his plea by praying judgment, if the plaintiff ought to have or maintain his action to recover any damages against him ; for, in this action, the debt is the principal, and the damages are only accessary. But, in assumpsit, the damages are the principal; and therefore, in pleading a tender, the defendant ought to conclude his plea with a prayer of judgment, if the plaintiff ought to have or maintain his action, to recover any more or greater damages than the sum tendered, or any damages by reason of the non-payment thereof. 2 Salk. 622 ; 1 Lord Raym. 254 ; 3 Salk. 344, 345.
Proof of a tender of 20/. 9s. 6d. in bank notes and silver is sufficient to support a plea of tender of 20/. 4 B. fy Ad. 547 ; 1 N. $ M. 393.
6. Effect of a Tender. —A tender admits the contract and facts stated in the declaration. 3 Taunt. 95. And after a plea of tender the plaintiff cannot be nonsuited. 1 Camp. 327.
On the other hand, if a creditor, after refusing payment when tendered, commences an action, the tender accompanied by a payment of the sum tendered into court will be a good defence, unless the creditor can prove a prior or subsequent demand and refusal. 1 Camp. 181 ; 5 B. $• A. 630. And a 4M
tender will prevent interest from afterwards running against the debtor. 3 Camp. 296 ; 8 East, 168.
The plaintiff may either admit the tender or not; if the latter, he should not take the money out of court ; for, by taking it, he admits the same to be right, and judgment is given for the defendant to go quit as to that plea. But if he admits it, and goes for further damages, on the ground that the tender was not sufficient to cover his demand, he may take the money out of court, enter an acquittal as to the tender, or confess the same in his replication, and proceed on the general issue for the residue. Ld. Raijm. 1744. If he admits the tender and enters an acquittal, without going for further damages, he must pay the defendant his costs. Barnes, 337. But the plaintiff may take the money out of court, though he reply that the tender was not made before action brought. 1 Bos. 8c Pull. 332.
The money cannot be taken out by the defendant, though he has a verdict. Stra. 1027. On a tender being pleaded, and the money paid into court, the plaintiff replied a subsequent demand and refusal, whereupon issue being joined and tried, a verdict was found for the defendant. Whereupon he moved to have the money paid into court returned, in part of his costs ; but the court was of opinion it could not be done. Hardrv. 206.
In what cases tender and refusal shall discharge the debt, see 1 mis. 117.
Tender of the money is requisite on contracts for goods sold, &c. to entitle the buyer to maintain an action of trover. See Trover. And a tender of stock sold for so much money, if it be well made, though not accepted, will entitle the party to the sum agreed to be paid. 3 Salk. 343 ; Stra. 777, 832. See further Bond, Money, payment of, into Cotcrt.
TENEMENT, tenementum.~] Signifies properly a house, or homestall; but, more largely, it comprehends not only houses, but all corporeal inheritances which are holden of another, and all inheritances issuing out of or exercisable with the same. Co. Litt. 6. 19. 154. A tenement maybe said to be any house, land, rent, or other such like thing that is any way held or possessed ; but being a word of a large and ambiguous meaning, and not so certain as messuage, therefore it is not fit to be used to express any thing which requires a particular description. 2 Lill. Abr. 566.
Tenement, in its original proper, and legal sense, signifies any thing which may be holden, provided it be of a permanent nature, whether it be of a substantial and sensible, or of an unsubstantial and ideal kind. Thus liberum tenementum, frank-tenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like. 1 Inst. 6. And as lands and houses are tenements, so is an advowson a tenement; and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are all of them, legally speaking, tenements. Inst. 19, 20. See Hereditaments.
TENEMENTARY LAND. Was the outland of manors granted out to tenants by the Saxon thanes under arbitrary rents and services. Spclm.
TENEMENTIS LEGATIS. An ancient writ, lying to the city of London or any other corporation (where the old custom was, that men might devise by will lands and tenements as well as goods and chattels), for the hearing and determining any controversy touching the same. Reg. Orig. 244.
TENENDUM. That clause in a deed wherein the tenure of the land is created and limited. The office of a tenendum in a deed is to limit and appoint the tenure of the land which is held, and how, and of whom it is to be held. Before the statute called quia emptores terrarum, 18 Edw. 1. st.\. the tenendum was usually of the feoffor and his heirs, and not of the chief lord of the fee, whereby lords lost their escheats, forfeitures, &c. But since the said statute, the tenendum, where the fee-simple passes, must be of the chief lord of the
fee, by the custom and services whereby the feoffor held; yet this statute does not extend to a gift in tail, for the donee shall hold of the donor. Co. Litt. 6 a ; 2 Inst. 66, 67, 500, 501.502.505. See Tail, Tenures.
The tenendum seems now to be incorporated with the habendum; for we say, To have and to hold, in which clause the estate is limited, & r c. See Deed, II. 4.
TENENDAS. That clause of a charter by which the particular tenure, as that of feu-holding, or b/anch-holdmg, is expressed. Bell's Scotch Lam Diet.
TENENTIBUS In Assisa Non Onerandis. A writ that formerly lay for him to whom a disseisor had alienated the land whereof he disseised another, that he should not be molested in assise for the damages, if the disseisor had wherewith to satisfy them. Reg. Orig. 214.
TENHEDED, or T1ENHEOFED, Sax.] Decanus, Caput vel Princeps Decaniae she Decarice. Leg. Edw. Conf. c. 29.
An information in the nature of a quo warranto lies for acting as a trustee under an act of parliament, without due appointment. 1 Stra. 299. Against one for usurping the office of steward of a court leet. Ibid. 621. For erecting a new office. 2 Stra. 836. For the office of constable. Ibid. 1213. For a ferry. Ibid. 1161. But not for erecting a warren. 1 Stra. 637. Nor for the office of churchwarden. Ibid. 1196.
The form of this information is thus :
" A. B. attorney-general of the lord the king, who suet for the lord the king in this behalf, comes here into the court of our said
lord the king, before the king himself, at Westminster, on , in this same term, and for the said lord the king gives the court
here to understand and be informed, that , for the space of now last past, and more, hare used and stilt do use, without
any warrant or royal grant, the following liberties and franchises, to wit, : Of all which liberties, privileges, and franchises
aforesaid, the said , during all the time aforesaid, have usurped, and still do usurp, upon the said lord the king, to the great damage and prejudice of his royal prerogative : Whereupon the said attorney of the said lord the king, for the said lord the king, prays the advice of the court in the premises, and due process of law against the said in this behalf to be made, to ¦
answer to the said lord the king, By What Warrant he claims to have, use, and enjoy the liberties, privileges, and franchises aforesaid."
This is the form, whether the information be brought for an usurpation without any original title, or for a subsequent forfeiture, where the original title is not disputed. See Co. Ent. 527—564.
The process usually awarded on the roll against individuals, whether claiming to act as a corporation, or claiming any other franchise, is a venire facias, sometimes with a clause of non omittas, and sometimes without. The entry immediately after the conclusion of the information is thus : " Whereupon the sheriff" is commanded, that he cause to come," or " that he omit not, <)j-c. but that he cause to come, SfC. to answer," SfC.
If the defendants do not appear at the day, the next process awarded is a distringas. Against a corporation, not prosecuted for acting as a corporation, but for usurping other liberties, the first process awarded is a distringas, and the entry on the roll in this form : " Whereupon it is agreed, that the aforesaid mayor and commonalty and citizens of be distrained by all their lands, Syc. so that, Src. to answer to our lord the king in the premises; and the sheriff is commanded, that he distrain them in form aforesaid, so that, SfC at such a day." Co. Ent. 536 a.
Though a venire facias and distringas are the process usually awarded on the roll, yet it seems that against individuals who cannot be served with the venire, process of outlawry lies. See Cro. Jac. 528, 531.
When the defendant appears, he may either disclaim or plead as to all the franchises mentioned in the information; or he may plead as to part, and disclaim as to part.
If he disclaim as to all, the entry is in this form:
" The said , protesting that the information aforesaid is
not sufficient in law, and that he is not under any necessity by the law of the land to answer thereto, for plea nevertheless saith, that he never used the aforesaid liberties, privileges, and franchises, nor any of them, nor in the same, or any of them, ever usurped upon the said lord the king, in manner and form as by the said information is supposed, but the same, and every of them, disclaims and disavows ; whereupon he prays judgment, and that he may be dismissed by the court." Co. Ent. 527 b.
If he plead as to part, and disclaim as to part, the entry of the disclaimer, after the plea, is in this form:
" And as to the residue of the liberties, privileges, and franchises in the said information above specified, upon the said lord
the king supposed to be usurped by the said , the said
says, that he never used, nor does he now use, the residue," Sf-c. Co. Ent. 529 b.
Where the defendant pleads, the entry is in this form :
" The said , as to the aforesaid liberty, fyc. of , says,
ifC. [here he sets out his title to the particular franchise ;
and so of every other claimed by a distinct title, and concludes his plea as to each, in this manner :] And By This Warrant
the said has used, during all the time aforesaid, in the said
information mentioned, and still uses the liberties, privileges, and
franchises of ¦ , as he well might and still may ; Without
This, that the said has usurped, or now does usurp, the, said
liberties, <$c. on the said lord the king, in manner and form as by the information aforesaid, for the said lord the king, is above supposed : All which the said is ready to verify, as the court,
SfC.: Whereupon he prays judgment, and that all and singular the liberties, SfC. above by him as aforesaid claimed, may be allowed and adjudged to him, and that he may thereupon be dismissed from this court." See Co. Ent.
The attorney-general then demurs or replies, and the subsequent proceedings are in the same manner as in civil actions.
In a quo warranto to show by what authority a person claimed to have a court leet, and alleging farther, quod usurpavit libertatem sine aliqud concessions, fyc. defendant pleaded non usurpavit; and it was objected that this was no good plea; for the answer to quo warranto is either to claim or disclaim ; but the better opinion was, that by this plea defendant had answered the usurpation, though it did not show by what title he claimed. Godb.91.
In quo warranto for using a fair and market, and taking toll, issue was taken whether they had toll by prescription or not, and it was found they had; it was moved in arrest of judgment, that here was a discontinuance, because there was no issue as to the other liberties claimed ; but it was held, they were too soon to make this objection, and that there can be no discontinuance against the king before judgment; for by virtue of his prerogative, the attorney-general may proceed to take issue on the rest, or may enter a nolle prosequi ; but if he will not proceed, the court may make a rule on him ad rcplicandum, and then there may be a special entry made of it. Hardr. 504.
The judgment seems to be the same, and subject to the same varieties as on the writ of quo warranto.
If it be given in favour of the defendant, the entry is in this form :—" It is considered that the liberties, SfC. be allowed to the said ;" or thus : " The said may use, have,
VOL. II.
and enjoy all the said, Src.; and that the said as to the
said premises may be dismissed from this Court: Saving always the right of the said lord the king, if hereafter," fyc.
This salvo jure for the king, says Coke, serveth for any other title than that which was adjudged, and therefore William de Penrugge, the king's attorney for prosecuting a quo warranto against the abbot of Fischamp for franchises within the manor of Steyning, sine pracccpto, was committed to gaol. 1 Inst. 282.
On disclaimer by the defendant the attorney-general prays,
" That whereas the said , by his plea, has disavowed and
disclaimed all and singular the liberties, fyc. above specified, judgment may be given for the king; and that the said , with
the said liberties and franchises, or any of them, may no way intermeddle, but may hereafter be altogether excluded from the same;" and judgment is accordingly given in that form. Co. Ent. 27 6.
With respect to the form of the judgment for the king, when it is given on the defendant's pleading, there has been much difficulty and dispute.
In the year-book of the 15 Edn. 4. this rule is laid down, " That where it clearly appears to the court that a liberty is usurped by wrong, and exercised on no title, either by the king's grant or otherwise, judgment only of ouster shall be entered. But that where it appears that the king or his ancestors have once granted a liberty, and the liberty is forfeited by misuser or nonuser, the judgment shall be, that it be seized into the king's hands." And the reason given for the distinction is, that where the liberty or franchise has been usurped, the king cannot have that which never legally existed ; but in cases of an abuser or nonuser of a franchise once lawfully granted, the king resumes that which originally flowed from his bounty ; and this course in the latter case, it has been said, is most beneficial for the subject, who, though by forfeiture, mispleading, or default, he may lose his liberty, may have recourse to the king's mercy for restitution. See 15 Edw. 4. 7 b; Sawyer's Arg. Quo Warranto, 17 ; 5 T. R. 551.
From this it would seem that the only cases in which judgment of ouster only ought to be given, is, where there is no colour of title in the defendant; or where a franchise is claimed by prescription, but it is such that by law it cannot be so claimed ; or where it is not such a franchise as may subsist in the hands of the crown. See 3 Comm. c. 17. cites Cro. Jac. 259 ; 1 Show. 280.
So if a man claim to hold a court-baron in virtue of a manor held by a copy of another manor ; there judgment of ouster only shall be given, because a copyholder, being only tenant at will, cannot hold a court-baron to have forfeitures, and hold pleas in a writ of right. Cro. Jac. 259.
But where there is a colour of title, but the pleading of the defendant is defective, there is only judgment of seizure, and not of ouster. See 9 Co. 24 a ; Co. Ent. 43 a; Sawyer's Are. 17.
\Vhere grants appear, but either the parties are not capable of taking, or their liberty or privilege granted is not allowable by law, the course has been to enter a mixed judgment both of seizure and ouster. Sawyer's Arg. 17 ; Co. Ent. 537, 539 a; Palm. 1 ; 2 Roll. Rep. 113.
In addition to the judgment of seizure or of ouster, or of seizure and ouster, except only in the case of ouster on disclaimer, there is also judgment that the defendants be taken to make fine to the king for the usurpation. And in this respect it seems the judgment in the information differs from that in the writ of quo warranto; for in the latter, it is apprehended, there could be no judgment of capias pro fine. The defendant was in the nature of a plaintiff; he made his claim ; if he failed in making it good, the judgment was not capias pro fine, but quod sit in misericordid. Rast, Ent. 540 a. pi. 1.
Upon quo warranto, when liberties are seized quousque, fyc. 3L
and they are not replevied, the course is, that judgment final be given, nisi the defendants plead within such a time. Comberbach, 18, 19.
Wherever judgment is given for the king on a quo warranto, Tot liberties usurped, the judgment is quod extinguanlur, and that the usurpers libertates, life, nullatenus intromittant; and in such case the writ must be brought against particular persons. But where the quo warranto is for a liberty claimed by a corporation, there it is to be brought against the body politic ; and the liberties may be seized, but the corporation still subsists, and is not dissolved without cause of forfeiture. 4 Mod. 52, 58.
A judgment of seizure cannot be proper where a thing is dissolved. And the judgment in the quo warranto against the city of London seems contradictory, for the first part of it is, quod libertates et franchisice captantur et seisanlur in manus regis; and the latter part of it is, quod capianlur ad ratisfaciend. Domino Regi de fine suo pro usurpatione libertatis, fyc. And the corporation was not thereby dissolved, for it implied that they were not extinguished. 4 Mod. 52, 58. See tit. London, and under that title particularly as to the abuses of the information by quo warranto.
After judgment the regular course is to issue a writ of seizure to the sheriff, which, after reciting the proceedings in the quo warranto, commands him to seize the liberties into the king's hands. But this writ, in point of fact, has not always issued. See Co. Ent. 539 b.
Where several franchises are granted by the same charter, and one is subordinate and inseparably incident to the other, the forfeiture of the principal is the forfeiture of the subordinate and incident; but when the franchises are independent, and the one may stand without the other, the forfeiture of the one is not the forfeiture of the other. Palm. 82.
Where a quo warranto, or an information in the nature of it, is brought for several franchises, it is as several writs or several informations, to which there may be several pleas and several judgments ; because the defendant may claim one franchise by one title, and another by another. Palm. 7, 8.
The court will not consolidate several informations against several persons for distinct offices, for there must be an information against each to enable each to disclaim. 2 Maul, fy Selw. 75.
It has been adjudged that the 4 & 5 Wm. § Mary, c. 18. by which informations in the Crown Office are not to be sued without express orders in open court, &c., being a remedial law, extends to informations in the nature of a quo warranto, which always suppose the usurpation of some franchise. See Kydd's Law of Corporations, ii. 410, &c. 415, &c.; and ante, tit. Information, I. IV.
This statute, and the 9 Ann. c. 20. leave the power of the attorney-general, with respect to filing informations, whether in the nature of quo warranto, or not, exactly as it was at common law; for the 4 & 5 Wm. St Mary, c. 18. expressly provides, that it shall not Hie construed to extend to any other Information than such as shall be exhibited in the name of their majesties' coroner or attorney in the Court of King's Bench for the time being, commonly called the master of the Crown Office. And the 9 Ann. c. 20. only introduces some provisions with respect to informations in cases within the meaning of it filed in the name of the latter officer. In point of fact, there are several records in the Crown Office of informations in the nature of quo warranto, filed in the name of the attorney-general in the intermediate time between the two statutes, and since the passing of the last, as well in cases within the meaning of the last, as in other cases. 2 Kydd's Corp. 415, &c.
The distinction between the power of the attorney-general and the master of the crown-office seems to be this, that the power of the latter is confined to cases which concern the public government; whereas that of the former extends also to cases which only concern the private rights of the crown.
2 Ld. Raym. 1409 ; Hardm. 261 ; Stra. 637 ; 3 Burr. 1814, 1817. See 2 Kydd's Corp. 417, &c.
The cases in which informations in the nature of quo warranto are granted under the 9 Ann. c. 20. are where a man exercises a corporate franchise, or acts as a corporate officer, without having been duly elected and sworn or admitted, and where the office of a corporate officer becomes void by something subsequent, as a motion, ore. Kydd's Corp. 424.
To subject a man to an information in the nature of a quo warranto, it is necessary that there should be not only a claim, but an user of the franchise. See Sayer, 245 ; 5 T. R. 85.
Such information will lie for the office of bailiff of a court leet, being a principal officer having a power to summon and select the jury. 2 East, 308.
Upon an application for a quo warranto information, soggesting that the defendants were elected contrary to the provisions of a particular charter, the affidavit must state that the charter was accepted, or that the usage has been in conformity to the charter; and the court, after determining that the affidavit was ill for omitting so to state, refused leave to amend it. 4 M. § S. 253.
Where the only act done by the party, against whom an application is made for leave to file an information in the nature of quo warranto, is voting in an election for members of parliament under any claim of right, the court will refuse it, on the ground that an inquiry into the right of voting belongs more properly to the House of Commons. 1 Stra. 547.
But an information in the nature of quo warranto will lie against a person claiming to have a right of voting by virtue of a burgage tenement. 3 T. R. 599 n.
The Court of King's Bench, having a discretionary power of granting informations in the nature of quo warranto, had long ago established a general rule to guide their discretion as to the time for applications of this nature, viz. not to allow in any case such information against a person who had been twenty years in the possession of his franchise; but having reason to consider this time as too extensive, they by degrees restrained it, by analogy to the Statute of Limitations, and resolved not to allow such information against any person who had been six years in possession. See 4 Burr. 1962, 2022, 2120, 2523; Cowp. 75; 17. R. 1, 4; 2 T. R. 767 ; 4 T. R. 282, 284. And at length the legislature confirmed this regulation, and extended it to informations filed by the attorney-general. By the 32 Geo. 3. c. 58. it is enacted, that to any information in the nature of quo warranto, for the exercise of any corporate office or franchise, the defendant may plead that he has been in possession of or has executed the office for six years or more. And it is by the same act provided, that no defendant shall be affected by any defect in the title of the person from whom he derives his right and title, if that person has been in the undisturbed exercise of his office or franchise six years previous to the filing of the information.
This latter provision must be considered as applying only to cases where issue is taken on the title of the person through whom the defendant claims ; for no inquiry can be made into such title where no issue has been taken upon it. Kyd. Corp. ii. 444, 435, &c.
Under this act the defendant may plead several pleas, even though he do not plead (in one of them) the limitation imposed by the statute. 8 T. R. 467.
The six years in the act means six years before making the rule absolute for the information, and not six years before obtaining the rule nisi. 1 Maul. $¦ Selw. 71.
To obtain leave to file an information, the party applying must lay a proper case before the court, verified by affidavit, on which the court will grant a rule on the defendant to show cause. It was formerly, indeed, so much the practice of the court to grant (pio warranto informations as of course, that it was held prudent never to show cause against the rule, for fear of disclosing the grounds on which the defendant rested his defence. But since these matters have come more under consideration, it is no longer a matter of course ; and the court have on several occasions declared that it was the intention of the legislature that they should exercise a sound discretion according to the particular circumstances of the respective cases that came before them, and should not, without good reason, disturb the quiet of any corporation. See 1 T. R. 2; 4 Burr. 1964, 2022.
The court will make the rule for an information absolute, although the party, after the rule obtained, resign his office, and his resignation be accepted. 2 Maul. § Selw. 75.
Where the right, or the fact on which the right depends, is disputed, that is a sufficient reason for granting an information, if the application be made within the proper time. So where the right depends on a point of new or doubtful law. See 3 Burr. 1485 ; Cowp. 58 ; Doug. 397 (382).
The conduct of the parties on whose behalf the application is made will weigh much with the court, in some instances, in granting or refusing an information. See 4 Burr. 1963, 2024, 2120 ; 3 T. R. 300, 573 ; Cowp. 75 ; 4 T. R. 223.
It is no reason for refusing an information, that informations formerly granted for the same cause have been abandoned, as that may have been by collusion. But it is a good reason that the prosecutor stands exactly in the same circumstances with the defendant. 2 T. R. 770, 771 ; and see 1 East, 36.
In cases where there has been a long acquiescence, and where the objection, if it prevailed, might tend to dissolve the corporation, the court may refuse the application. Cowp. 59. But though a great number of derivative titles may be affected by judgment of ouster against the defendant, yet, if it be confessed that elections may still be made, the court will not refuse it on that ground alone. 2 T. R. 767; and see 3 East, 213.
As, however, it is in the discretion of the court to grant a quo warranto information, or to refuse it, the court will not, under circumstances tending to throw suspicion on the motives of their relator, grant such application, where the consequence will be to dissolve a corporation. 2 B. S,- A. 479.
On a former application against the same person (as mayor of Helleston, in Cornwall), the court held it to be a valid objection to one relator that he was present and concurred at the time of the objectionable election, even though he was then ignorant of the objection; for a corporator must be taken to be cognisant of the contents of his own charter, and of the law arising therefrom. 2 B. 4' A. 339. And in the same case the court refused to grant the rule, on the ground that the other relator appeared to be a man in low and indigent circumstances, and that there were strong grounds of suspicion that he was applying, not on his own account, nor at his own expense, but in collusion with a stranger.
But it has been since held that it is no objection to granting an information that the person applying is in low and indigent circumstances, and that there is strong ground of suspicion that he is applying, not on his own account, or at his own expense, but in collusion with a stranger ; but the court in such a case required security for costs, ilex v. Wakelin, 1 Barn. 4- Adol. 50.
And as to the competency of the relator, see 1 B. fy Ad. 689, 690.
Where the application is made in the names of persons unconnected with the corporation, that will in general be a strong reason for refusing it. 1 7". R. 23 ; 1 East, 46 n; 3 T. li. 574 n.
The 9 Ann. c. 20. gives full costs, on verdict or judgment, to the successful party, whether relator or defendant; but it is only in case of verdict or judgment that, under this statute, the defendant can have costs for a groundless prosecution; but it has been decided that if the prosecutor do not, at his own costs, procure the information to be tried within a year after issue joined, the defendant is entitled to the benefit of the recognizance under the statute of William <f- Mary. See further, Information, I.
What cases are within the meaning of the statute has been the subject of some controversy, as the successful party is entitled to his costs only in such cases.
The words of the statute are, the " offices of mayors, bailiffs, portreeves, and other offices within cities, towns corporate, boroughs, and places ;" one question has been, whether these words express only corporation offices, or whether they extend to offices in boroughs and other places not corporate. And it seems on the whole decided that the word places in the act only extends to offices in places of the same kind with those before enumerated.
It has likewise been urged, that there is a material difference between the case of a person who is compellable to take upon himself a burdensome office, which he could not refuse without being liable to an indictment, and that of a person who voluntarily undertakes an office from which he expects personal importance or some other advantage ; and that it is unreasonable that a person, supposed to be elected into an office of the first description, should be liable to pay the costs of a prosecution for ousting him, on account of some defect in his election. 5 T. R. 375.
As this statute, 9 Ann. c. 20 extends only, as regards costs, to cases where the title of a person to be a corporate officer, as mayor, bailiff, or freeman, is in question, an information to try the right of holding a court is therefore not within it, but stands upon the common law only ; and being a prosecution in the name of the king, no costs are given. 1 Burr. 402.
The court will not stay proceedings until the prosecutor give security for costs, on the ground that the relator is in insolvent circumstances, where it appears that he is a corporator, and no fraud is suggested. 2 Maul. fy Selw. 346.
By the 11 Geo. 4. and 1 Wm. 4. c. 70. § 14. the jurisdiction of the court of session of Chester was abolished ; and by 1 Wm. 4. c. 3. § 4. it was enacted that all informations in nature of quo warranto, and pleas and proceedings thereon, depending in the said court, should, at the request of the relator or defendant, be transmitted by the late prothonotary of such court, or other officer having the custody thereof, into the Crown Office of the King's Bench, and be proceeded with as if commenced there. It was held, that an information removed from the court of Chester may be proceeded upon in the Court of King's Bench, though no recognizances have been entered into for prosecuting with effect as required in K. B. by the 4 & 5 Wm. % Mary, c. 18. § 2.
It was formerly a subject of much discussion, whether a new trial could be granted in a quo warranto information when the verdict was in favour of the defendant. This depended chiefly on the question, whether such an information was a criminal prosecution; but since it has been held that it is merely a civil proceeding, there is no doubt but that a new trial may be granted where a verdict has been given in favour of the defendant, as well as where it has been given in favour of the crown. 2 T. R. 484.
The erections of weirs across public rivers was reprobated in the earliest periods of our law, and was always considered as a public nuisance, for Magna Charta directs " that all weirs from henceforth shall be utterly pulled by Thames and Medway, and through all England, but only by the sea coast." Magna Charta, c. 23. And the 12 Edn. 4. c. 7. and other subsequent acts, forbid the erections of new weirs, and the enhancing, straightening, or enlarging those which aforetime existed. Therefore where a brushwood weir across a public river was converted into a stone one, by which the fish were prevented from passing except in flood times ; this was considered to be a public nuisance, although two-thirds of the weir had been so converted for forty years without interruption. 7 East, 198. So in another case it was considered, that an obstruction to the navigation of a river, though continued for a period of twenty years, was no bar to the right of the public. 2 B. 8f A. 662. For no length of time will legitimate a public nuisance. 3 Campb. 227. See further, Nuisance, I.
As to annoyances in rivers, either positively by actual obstructions, or negatively, by want of reparations, the persons so obstructing, or such individuals as are bound to repair and cleanse them, or (in default of these last,) the parish at large may be indicted, distrained to repair and amend them, and in some cases fined. 4 Comm. 167. And see the provisions of the recent statute, tit. Seivers.
By the statute of West. 2. c. 47. the king may grant commissions to persons to take care of rivers and the fishery therein. The lord mayor of London is to have the conservation in breaches and ground overflown as far as the water ebbs and flows in the river Thames. 4 Hen. 7. c. 15. Persons annoying the river Thames, making shelves there, casting dung therein, or taking away stakes, boards, timber-work, &c. off the banks, incurred a forfeiture of 51. under the 27 Hen. 8. c. 18. Commissioners appointed to prevent exactions of the occupiers of locks, weirs, &c. upon the river Thames westward from the city of London, to Cricklade, in the county of Wilts, and for ascertaining the rates of water-carriage, on the said river, &c. 6 & 7 Wm. 3. c. 16; which statute was revived, with authority for the commissioners to make orders and constitutions to be observed, under penalties, &c. 3 Geo. 2. c. 11 ; 24 Geo. 2. c. 8.
An ancient towing-path on the bank of a river is not within the jurisdiction of commissioners, under the general terms of an inclosure act. 2 Bos. fy Pul. 296.
The owner of land through which a river runs cannot, by enlarging a channel of certain dimensions, through which the water had been used to flow, before any appropriation of it by another, divert more of it to the prejudice of any other landowner lower down the river,* who had at any time, before such enlargement, appropriated to himself the surplus water which did not escape by the former channel. 6 East, 209.
By the 7 & 8 Geo. 4. c. 29. § 17. to steal goods in any vessel, barge, or boat, upon any river, &c, or any dock, wharf, &c. adjacent thereto, is punishable with transportation for life, &c. See further, Malicious Injuries.
ROBA, a robe, coat, or garment. Walsing. 267. See Retainer.
ROBBERY, robaria.~\ A felonious taking away of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear, and of purpose to steal the same. West's Symbol, part 2. title Indictments, § 60; 2 East's P. C. c. 16. § 124; 1 Hawk. P. C. c. 34; 1 Hale, P. C. 132 ; 3 Inst. 68.
This offence was called robbery, either because they bereaved the true man of some of his robes or garments, or because his money or goods were taken out of some part of his garment or robe about his person. Co. 3 Inst. c. 16. This is sometimes called violent theft. West. Symbol., ub. sup. Kitchin. fol. 16, 22 ; Lib. Ass. 39. See Skene de Verborum Signif. verb. Reif; and Cromp. Justice of Peace, fol. 30.
What is or amounts to a Robbery in respect of the Manner, or the Person from whom any thing is taken. —
Open and violent larceny from the person, or robbery, is the felonious and forcible taking, from the person of another, of goods or money to any value, by violence, or putting him in fear. 1 Hawk. P. C. c. 34.
1st, There must be a taking, otherwise it is no robbery.
If the thief, having once taken a purse, return it, still it is a robbery : and so it is, whether the taking be strictly from the person of another, or in his presence only: as, where a robber, by menaces and violence, puts a man in fear, and drives away his sheep or his cattle before his face. 1 Hal. P. C. 533. But if the taking be not either directly from his person, or in his presence, it is no robbery. Com. 478; Stra. 10, 15.
Zdly, It is immaterial of what value the thing taken is: a penny as well as a pound, thus forcibly extorted, makes a robbery. 1 Hawk. P. C. c. 34. § 5.
But the property taken must be of some value. Therefore, in a case where the prisoner (a woman) had obtained a note of hand from a gentleman, by threatening him with a knife, held to his throat, to take away his life, and it appeared that she had furnished the paper and ink with which it was written, and that the paper was never out of her possession, this was holden not to be a robbery : the judges being of opinion that the note was of no value to the prosecutor, and not within the proviso of 2 Geo. 2. c. 5. § 3. which made the stealing a chose in action felony. Pkipoe's case, 2 Leach, 673.
Lastly, The taking must be by force, or a previous putting in fear ; which makes the violation of the person more atrocious than privately stealing. This previous violence, or putting in fear, is the criterion that distinguishes robbery from other larcenies. For if one privately steal from the person of another, and afterwards keep it by putting him in fear, this is no robbery, for the fear is subsequent: neither was it formerly capital, as privately stealing, being under the value of twelve pence. 1 Hal. P. C. 534. Not that it is indeed necessary, though usual, to lay in the indictment that the robbery was committed by putting in fear; it is sufficient iflaid to be done by violence, and against the will of him robbed. Fost. 128; 2 East's P. C. c. 16. § 127. And when it is laid to be done by putting in fear, this does not imply any great degree of terror or affright in the party robbed: it is enougli that so much force, or threatening by word or gesture, be used, as might create an apprehension of danger, or induce a man to part with his property without or against his consent. Thus, if a man be knocked down without previous warning, and stripped of his property while senseless, though strictly he cannot be said to be put in fear, yet this is undoubtedly a robbery. Or, if a person, with a sword drawn, begs an alms, and I give it him through mistrust and apprehension of violence, this is a felonious robbery. 1 Hawk. P. C. c. 45. § 6. So if, under a pretence of sale, a man forcibly extorts money from another, neither shall this subterfuge avail him. But it is doubted, whether the forcing a higler, or other chapman to sell his wares, and giving him the full value of them, amounts to so heinous a crime as robbery. 2 Hawk. P. C. c. 34. § 7. See 1 East, 615; 2 East, 712.
The circumstance of putting one in fear, makes the difference between a robbery and a cut-purse ; both takes it from the person, but this takes it clam ct secreti without assault or putting in fear, and the robber by violent assault and putting in fear. 3 Inst. 68. c. 16.
Wherever a person assaults another, with such circumstances of terror, as put him in fear, and causes him, by reason of such fear, to part with his money, the taking thereof is adjudged robbery ; whether there were any weapon drawn or not, or whether the person assaulted delivered his money upon the other's command, or afterwards gave it to him upon his ceasing to use force, and begging an alms; for he was put into fear by his assault, and gives him his money to get rid of him. 1 Hawk. P. C. c. 34. § 9.
So in cases of extortion of money by threats of a mob, to injure the person's house or property. 2 East's P. C. c. 16. § 128.
If the fact appear upon the evidence to have been attended with those circumstances of violence or terror which, in common experience, are likely to induce a man to part with his property against his consent, either for the safety of his person, or for the preservation of his character and good name, it will amount to a robbery; and this, though no express demand of money is made. Thus if an officer feloniously take money from a prisoner, not to take him to gaol, under colour of authority: or if one obtain property by threatening to accuse another of having been guilty of an unnatural crime, (see post,) these acts, particularly the latter, on the solemn opinion of all the judges, have been held acts sufficient to raise, in the mind of the party menaced, such a terror and apprehension of mischief, as to constitute the offence of robbery, by putting him in fear. 1 Hank. P. C. c. 34. § 6; 2 Leach. 731; 2 East's P. C. c. 16. § 130.
But these latter cases of terror are to be considered as in some measure qualified and restrained: for in a case where the prosecutor had parted with his property for the purpose of convicting the offender, and after apprehension of injury to his character had ceased, this was held not to be a robbery ; 2 East's P. C. c. 16. § 132; and in another case it was held, by a majority of the judges, that, in order to constitute robbery, in cases of this kind, the property must be taken on an immediate apprehension of present danger upon the charge being made, and not after the parties have separated, and there has been time to deliberate and procure assistance, and a friend has been consulted on the transaction. Jackson and Shipley's case, 1 East's P. C. Add. xxi.
The following distinction has been frequently admitted in prosecutions for robbery, viz. That if any thing is snatched suddenly from the head, hand, or person of any one without any struggle on the part of the owner, or without any evidence of force or violence being exerted by the thief, it does not amount to robbery. But if any thing is broken or torn in consequence of the sudden seizure, it would be evidence of such force as would constitute a robbery: as where part of a lady's hair was torn away by snatching a diamond pin from her head, and an ear was torn by pulling of an ear-ring, each of these cases was determined to be a robbery. 4 Comm. c. 17. p. 244. n. cites Leach, 238.
The words of the indictment, " forcibly and feloniously did take," must be understood to imply that there is either an actual taking in deed, or a taking in law, and the latter may be when a thief receives, &c. For example : if thieves rob a true man, and finding but little about him, take it, this is an actual taking; and by threats of death compel him to swear upon a book to fetch them a greater sum, which he does, and delivers it to them, which they receive, this is a taking in law by them, and adjudged robbery ; for fear made him take the oath, and the oath and fear continuing, made him bring the money, which amounts to a taking in law ; and so it is, if a purse, &c. is delivered to the thief through fear. 3 Inst. 68. c. 16.
See 1 Hawk. P. C. c. 34. § 4. That the thief must be in possession of the things stolen, or otherwise he is not guilty of robbery. 3 Inst. 69. c. 16. S. P.
Ifa man having a purse fastened to his girdle be assaulted by a thief, who, the more easily to take the purse, cuts the girdle, and the purse falls to the ground, this has been held no taking. 3 Inst. 99 ; 1 Hale, 533. But if the thief take up the purse, and afterwards let it fall, this is a sufficient taking; Id. ib.; for it is not necessary that the property, if once taken, should continue in the possession of the thief; for, where the robbery is once actually committed, it cannot be purged by any subsequent redelivery for any purpose. Peal's case, 1 Leach, 2*8 ; 1 Hank. P. C. c. 34. § 2.
The words of the indictment are from the person, &c. If the true man seeking to escape, for the safeguard of his money casts it into a bush, which the thief perceiving, takes it; this is a taking in law from the person, because it is done at one time. 3 Inst. 69. c. 1G. And so, if one drive my cattle, in my presence, out of my pasture, or takes my hat, which fell from my head, he may be indicted as having taken things from my person. 1 Hawk. P. C. c. 34. § 8. See also 3 Inst. 69. c. 16; and 116 pi. 161 ; Sty. 156.
Also taking cattle from A. which he is driving on the highway, is a taking from his person, and so a robbery ; 2 Salk. 641.
And ifa man-servant be robbed of his master's goods, in
VOL. II.
his master's sight, this shall he taken for a robbing of the master. Style, 156.
In some cases, a man may be said to rob me, where in truth he never actually had any of my goods in his possession ; as where I am robbed by several in one gang, and one of them takes my money ; in which case, in judgment of law, every one of the company shall be said to take it, in respect of that encouragement which they give to another through the hopes of mutual assistance in their enterprize: nay, though they miss of their first intended prize, and one of them afterwards rides from the rest, and robs a third person in the same highway, without their knowledge, out of their view, and then returns to them, all are guilty of robbery; for they came together with an intent to rob, and to assist one another in so doing. I Hank. P. C. c. 34. § 7.
But where a gang of poachers attacked a gamekeeper, and left him senseless on the ground, and one of them returned and stole his money, it was held that one alone could be convicted of the robbery, as it was not perpetrated in pursuance of any common intent. 3 C. $¦ P. 392.
This offence of robbery is an aggravated species of larceny, and has long been liable to capital punishment; having been excluded from clergy by the old statutes, all of which have been repealed.
Now, by the 7 & 8 Geo. 4. c. 29. § 6. if any person shall rob any other person of any chattel, money, or valuable security, he shall suffer death as a felon.
A mere attempt to rob was indeed held to be felony so late as Henry the Fourth's time. 1 Hal. P. C. 532. But afterwards it was taken to be only a misdemeanor, and punishable with fine and imprisonment; till the 7 Geo. 2. c. 21. which first made it a felony, (transportable for seven years,) unlawfully and maliciously to assault another, with any offensive weapon or instrument; or by menaces, or by other forcible or violent manner, to demand any money or goods with a felonious intent to rob.
Now, by the 7 & 8 Geo. 4. c. 29. § 6. if any person shall assault any other person, with intent to rob him, or shall, with menaces, or by force, demand any such property of any other person, with intent to steal the same, he is guilty of felony, punishable with transportation for life or years, or imprisonment not exceeding four years, and whipping. See 6 C. $ P. 515, 521.
By § 7. of the same statute it is declared, that to accuse, or threaten to accuse, a person of any infamous crime, and thereby, by intimidating such person, extorting money, chattel, or any valuable security, shall be deemed robbery.
As to stealing from the person without violence, and other thefts, see Larceny.
ROBBERSMEN, or ROBBERDSMEN. A sort of great thieves, mentioned in the statutes 5 Edw. 3. c. 14; 7 It. 2. c. 5 ; of whom Coke says, that Robin Hood lived in the reign of King Richard I. on the borders of England and Scotland, by robbery, burning of houses, rapine and spoil, &c. and that these robberdsmen took name from him. 3 Inst. 197.
ROCHET. That linen garment which is worn by bishops gathered at the wrists. It differs from a surplice, for that hath open sleeves hanging down, but a rochet hath close sleeves. Lindenode, lib. 3. tit. 27.
ROD, roda terrce.l A measure of sixteen feet and a half long, otherwise called a perch.
ROD KNIGHTS, from the Sax. rad, equitatio, and cnyt, famulus, quasi ministri equitantes."] Certain servitors who held their land by serving their lords on horseback. Bract, lib. 2. c. 35.
ROGATION-WEEK, Dies Rogationum; Robigalia.'] A time so called because of the special devotion of prayer and fasting then enjoined by the church for a preparative to the joyful remembrance of Christ's ascension. Coieell.
ROGUE, Fr.~\ An idle sturdy beggar, who, by ancient statutes, for the first offence, was called a rogue of the first 3 X
degree, and punished by whipping and boring through the gristle of the right ear with a hot iron ; and for the second offence he was termed a rogue of the second degree, and executed as a felon if he were above eighteen years old; 27 H. 8. c. 25; 14 Eliz. c. 5 ; but repealed by 35 Eliz. c. 7. § 24, as related to vagabonds of the second degree.
All former statutes relative to rogues and vagabonds were repealed by the 5 Geo. 4. c. 83. See Vagrants.
ROGUS, Lat.~] A funeral pile. A great fire wherein dead bodies were burned; and sometimes it is taken simply for a pile of wood. Clans. 5 Hen. 3.
ROLL, rotulus.~] A schedule of parchment that may be turned up with the hand in the form of a pipe. Staundf. P. C. 11. Rolls are parchments on which all the pleadings, memorials, and acts of courts are entered and filed with the proper officer, and then they become records of the court. 2 Lill. Abr. 491. By a rule made by the Court of King's Bench, every attorney is to bring in his rolls into the office fairly engrossed by the times thereby limited, viz. The rolls of Trinity, Michaelmas, and Hilary terms, before the essoin day of every subsequent term ; and the rolls of Easter term before the first day of Trinity term; and no attorney at law, or any other person, shall file any rolls, &c. but the clerks of the chief clerks of this court. Ord.B. R. Mich. 1705. If rolls are not brought into the office in time, it has been ordered that they shall not be received without a particular rule of court for that purpose. Mich. 9 W. 3. See Practice, Pleadings.
Roll of Court, rotulus curiae,] The court-roll in a manor, wherein the business of the court, the admissions, surrenders, names, rents, and services of the tenants are copied and inrolled. See Copyhold.
Rolls Office Of The Chancery. An office in Chancery Lane, London, which contains rolls and records of the High Court of Chancery, the master whereof is the second person in the chancery, &c. Among these are the inrollments of acts of parliament, &-c. See Chancery, Master of the Rolls.
Rolls Of The Exchequer. Are of several kinds, as the
freat wardrobe roll, the cofferer's roll, the subsidy roll, &c. ee Exchequer.
Rolls Of Parliament. The manuscript registers of the proceedings of our old parliament; in these rolls are likewise a great many decisions of difficult points in law, which were frequently in former times referred to the determination of this supreme court by the judges of both benches, &c. Nicholson, Hist. Libr. part 3. cap. 3. edit. 1714. The inrollments in chancery of the acts of parliament, transmitted or certified from the parliament office, are sometimes termed parliament rolls, and sometimes statute rolls. See Statutes. Also Records.
Rolls Of The Temple. In the two Temples is a roll called the calves-head roll, wherein every bencher, barrister, and student, is taxed yearly at so much to the cook and other officers of the houses, in consideration of a dinner of calveshead provided in Easter term. Orig. Jurid. 199.
ROMAN CATHOLICS. The penal laws against the catholics, although for the most part not expressly repealed, have been superseded by the provisions of modern statutes, and particularly by the 10 Geo. 4. c. 7.
By the 18 Geo. 3. c. 60. the 11 & 12 W. 3. c. 4. was repealed in favour of such papists as should duly take the oath therein prescribed : of allegiance to his majesty, abjuration of the pretender, renunciation of the pope's civil power, and abhorrence of the doctrine imputed to them of destroying and not keeping faith with heretics, and deposing or murdering princes excommunicated by authority of the See ef Rome,— so far as it disabled them from purchasing or inheriting, or authorized the apprehending or prosecuting the popish clergy, or subjected to imprisonment either them or any teachers of youth.
By the 31 Geo. S. c. 32. also, all the severe restrictions and
penalties of the former laws were removed from those Roman Catholics who should make and subscribe a declaration of their professing the Roman Catholic religion, and also take the oath required by the last statute.
But by § 5. their places of worship are required to be certified to the quarter sessions, and there recorded; and no minister can officiate in any place of worship until his name and description are also recorded at the sessions, under the penalty of being deprived of all benefit of the act.
By § 6. their places of worship are prohibited from being locked or fastened.
By § 10. if any person shall wilfully, and on purpose, maliciously and contemptuously come into any congregation or assembly of their religious worship and disturb the same, or misuse any priest, minister, preacher, or teacher therein, on proof by two witnesses before one justice, he may be required to find two sureties in 50l. to appear at the next sessions, and upon conviction is liable to a penalty of 201.
By § 11. a Roman Catholic minister is prohibited from officiating in any place of worship having a steeple and bell, or at any funeral in a church or church-yard, or from wearing the habits of his order, except in a place allowed by the statute, or in a private house where there shall not be more than five persons besides the family.
By § 13. 14. 15.16. no person, who shall take the appointed oath, shall be prosecuted for teaching youth as a tutor or schoolmaster, except in any college or school of royal foundation, or any other endowed college or school, or except in any school in either of the two universities; but no Catholic schoolmaster can receive into his school for education the child of any Protestant father; nor is he permitted to keep a school until his name and description shall have been recorded at the sessions. See past.
But the great measure of relief to the Catholics was the 10 Geo. 4. c. 7. whereby the restrictions which prevented them from sitting in either Houses of Parliament, and holding many offices and franchises, were removed.
After reciting that " by various acts of parliament certain restraints and disabilities are imposed on the Roman Catholic subjects of his majesty, to which other subjects of his majesty are not liable; and that it is expedient that such restraints and disabilities shall be from henceforth discontinued ; and that by various acts certain oaths and certain declarations, commonly called the declaration against transubstantiation, and the declaration against transubstantiation and the invocation of saints and the sacrifice of the mass, as practised in the church of Rome, are or may be required to be taken, made, and subscribed by the subjects of his majesty, as qualifications for sitting and voting in parliament, and for the enjoyment of certain offices, franchises, and civil rights:"
It is by § .1. enacted, that all such parts of the said acts as require the said declarations, or either of them, to be made or subscribed by any of his majesty's subjects, as a qualification for sitting and voting in parliament, or for the exercise or enjoyment of any office, franchise or civil right, be (save as thereinafter excepted) repealed.
By § 2. Roman Catholics may sit and vote in either Houses of Parliament on taking the oath therein contained, instead of the oaths of allegiance, supremacy, and abjuration.
By § 5. Roman Catholics may vote at elections of members to serve in parliament for England and for Ireland, and also vote at the elections of representative peers of Scotland and of Ireland, and may be elected such representative peers, being in all other respects duly qualified, upon taking and subscribing the oath thereinbefore set forth, and upon taking also such other oath or oaths as may be lawfully tendered to persons offering to vote at such elections.
By § 8. so much of any acts as require the formula contained in 8 & 9 W. 3. c. 3. (S.) to be tendered or taken, is repealed. Roman Catholics may elect and be elected mem bers of parliament for Scotland, and enrolled as free-holders, &c. on taking the appointed oath.
By § 9. no Roman Catholic priest is to sit in the House of Commons.
By § 10. Roman Catholics may hold and enjoy all civil and military offices and places of trust or profit under his majesty, and exercise any other franchise or civil right, except as thereinafter excepted, upon taking and subscribing the oath thereinbefore appointed.
But by § 11. nothing therein contained shall exempt any person professing the Roman Catholic religion from taking any oaths, or making any declaration, not thereinbefore mentioned, or required to be taken or subscribed by any person on his admission into any such office or place of trust or profit as aforesaid.
§ 12. Provided that nothing therein contained shall enable Roman Catholics to hold or exercise the office of guardians and justices of the United Kingdom, or of regent of the United Kingdom, under whatever name, style or title such office may be constituted ; or to enable any person, otherwise than as he is now by law enabled, to hold or enjoy the office of lord high chancellor, lord keeper or lord commissioner of the great seal of Great Britain or Ireland; or the office of lord lieutenant, or lord deputy, or other chief governor or governors of Ireland ; or his majesty's high commissioners to the general assembly of the church of Scotland.
By § 14. Roman Catholics may be members of any lay body corporate, and hold any civil office or place of trust or profit therein, and do any corporate act, or vote in any corporate election or other proceeding, upon taking and subscribing the oath thereby appointed ; and upon taking also such other oaths as may by law be required to be taken by any person becoming members of such lay body corporate, or being admitted to hold any office or place of trust or profit within the same.
But by § 15. such members of corporations not to vote in ecclesiastical appointments.
By § 16. the act is not to extend to offices, &c. in the established church, or ecclesiastical courts, universities, colleges, or schools : Provided also, that nothing therein contained shall extend to enable any person, otherwise than as he is now by law enabled, to exercise any right of presentation to any ecclesiastical benefice whatsoever ; or to repeal, vary, or alter in any manner the laws now in force in respect to the right of presentation to any ecclesiastical benefice.
$ 17. Provided that where any right of presentation to any ecclesiastical benefice shall belong to any office in the gift or appointment of his majesty, his heirs or successors, and such office shall be held by a person professing the Roman Catholic religion, the right of presentation shall devolve upon and be exercised by the Archbishop of Canterbury for the time being.
By § 18. no Roman Catholic, directly or indirectly, shall advise his majesty, or any person or persons holding or exercising the office of guardians of the United Kingdom, or of regent of the United Kingdom, under whatever name, style or title such office may be constituted, or the lord lieutenant, or lord" deputy, or other chief governor or governors of Ireland, touching the appointment to any office or preferment in the united church of England and Ireland, or in the church of Scotland; and if any such person shall offend in the premises, he shall, being thereof convicted by due course of law, be deemed guilty of a high misdemeanor, and disabled for ever from holding any office, civil or military, under the crown.
§ 19. Every person professing the Roman Catholic religion, placed, elected, or chosen in or to the office of mayor, provost, alderman, recorder, bailiff, town clerk, magistrate, councillor, or common councilman, or in or to any office of magistracy or place of trust or employment relating
to the government of any city, corporation, borough, burgh, or district within the United Kingdom of Great Britain and Ireland, shall, within one calendar month next before or upon his admission into any of the same respectively, take and subscribe the oath thereinbefore appointed and set forth, in the presence of such person or persons respectively as by the charters or usages of the said respective cities, corporations, burghs, boroughs, or districts ought to administer the oath for due execution of the said offices or places respectively; and in default of such, in the presence of two justices of the peace, councillors or magistrates of the said cities, &c. if such there be ; or otherwise, in the presence of two justices of the peace of the respective counties, ridings, divisions, or franchises wherein the said cities, &c. are; which said oath shall either be entered in a book, roll, or other record to be kept for that purpose, or shall be filed amongst the records of the city, &c.
§ 20. Every person professing the Roman Catholic religion, appointed to any office or place of trust or profit under his majesty, his heirs or successors, shall within three calendar months next before such appointment, or otherwise shall, before he acts in such office or place, take and subscribe the oath thereinbefore appointed and set forth, either in the Court of Chancery, or the Courts of King's Bench, Common Pleas, or Exchequer, at Westminster or Dublin; or before any judge of assize, or in any court of general or quarter sessions of the peace in Great Britain or Ireland, for the county or place where the person so taking and subscribing the oath shall reside ; or in any of his majesty's courts of session, justiciary, exchequer, or jury court, or in any sheriff or Stewart court, or in any burgh court, or before the magistrates and councillors of any royal burgh in Scotland, between the hours of nine in the morning and four in the afternoon; and the proper officer of the court in which such oath shall be so taken and subscribed shall cause the same to be preserved amongst the records of the court.
§ 21. If any person professing the Roman Catholic religion shall enter upon the exercise of any office or place of trust or profit under his majesty, or of any other office or franchise, not having taken and subscribed the oath thereinbefore appointed, such person shall forfeit to his majesty two hundred pounds ; and the appointment of such person to the office, &c. so by him held shall become void.
§ 22. Provided that the oath thereinbefore appointed shall be taken by the officers in his majesty's land and sea service, professing the Roman Catholic religion, at the same times and in the same manner as the oaths and declarations now required by law are directed to be taken, and not otherwise.
By § 24. titles to sees, &c. are not to be assumed by Roman Catholics.
And by § 25. judicial or other officers are not to attend with insignia of office at any place of worship other than the established church, under a penalty of one hundred pounds.
And by § 26. a penalty of fifty pounds is imposed on Roman Catholic ecclesiastics officiating except in their usual places of worship.
For the provisions of the act with respect to Jesuits, see that title.
By the 2 & 3 JVm. 4. c. 115. it is enacted, that Roman Catholics in respect to their schools, places of religious worship, education, and charitable purposes in Great Britain, and the property held therewith, and the persons employed about the same, shall be subject to the same laws as the Protestant Dissenters are subject to in England in respect of their schools, &c.
By § 2. Roman Catholic schoolmasters are in all cases, when required by law, as a legal qualification for their employments, to take the oath prescribed by the 10 Geo. 4. c. 7. in lieu of all other oaths, or declarations, or tests.
By § 4. the act is not to repeal the provisions of the 10
It was found by special verdict, that the prior of Merton was seised of a house in Southwark, held of the Archbishop of Canterbury, as of his borough of Southwark, and (anno 30 of his reign) surrendered it to Henry VIII., who granted it and other lands to J. S. and his heirs, to hold of him in libero burgagio, by fealty, for all services and demands, and not in capite; and afterwards Queen Mary granted the manor and borough of Southwark to the mayor and commonalty of London ; and the tenant of the messuage died without issue; and the question was, whether Queen Elizabeth or the patentees of the borough should have the escheat; and adjudged for the queen ; for the first patentee of the messuage held it of the queen in socage in capite, as of a seigniory in gross; and the words in libero burgagio are merely void: for the land out of the borough cannot be held in libero burgagio; and there shall not be several tenures, for one tenure was reserved by the king for all; therefore of necessity it shall be a tenure in socage of the king. Cro. Eliz. 120.
By a recent act of parliament the 4 & 5 Wm. 4. c. 23. (passed since the first volume of this work, containing the titles Escheat and Forfeiture, was printed off,) the law relative to the escheat and forfeiture of property real and personal, held in trust, has been amended.
§ 2. enacts, that if a trustee or a mortgagee of land die without an heir, the Court of Chancery may appoint a person to convey such land, &c. according to the provisions of the 11 Geo. 4. and 1 Wm. 4. c. 60.
§ 3. Lands, chattels, or stock, vested in any trustee, shall not escheat or be forfeited to the king, or any lord of a manor, by reason of the attainder or conviction of such trustee.
By § 4. the act is to extend to every case of a trustee having some beneficial estate or interest in the same subject, or some duty as trustee to perform, and also to every case of a trust by implication of law or construction of equity.
But § 5. provides that the act shall not prevent the escheat of forfeiture of any beneficial interest in such trustee.
§ 6. declares that where any trustee of lands, &c. shall have died without heirs, or have been convicted of an offence whereby the lands, &c. shall have escheated or been forfeited, such lands, &c. shall become subject to the control of the Court of Chancery, under the provisions of the said act of the 11 Geo. 4. and 1 Wm. 4. c. 60. But this clause is not to extend to lands, &c. vested in any person by a grant subsequent to such escheat or forfeiture, or which more than twenty years before the passing of the act have been reduced into possession by the party entitled, by virtue of such escheat or forfeiture.
8. Escuage is reckoned by Lord Hale among the perquisites of tenure ; and whether so or not, seems one of its most obscure and unintelligible branches.
Escuage, considered as a service, or species of tenure, was not, as Littleton intimates, (§ 95, 96,) a direct personal service of attendance upon the king in his wars; nor was it due upon all military occasions, as knight-service was : but it was a pecuniary aid, or contribution, reserved by
Particular lords instead, or in lieu, of personal service; the etter to enable them to bear the extraordinary expense of their own attendance and warfare, when the king made war on Scotland or Wales, or upon any foreign country, if the tenure was so expressed. Bract. 1. 2. c. 16 ; Lift. § 95, 97, 100, 103, 155, 158; Mad. Hist. Exch. 452; Seld. Notes ad Hengham, 113.
As the lord's service abroad was thus uncertain, the quantum of this aid was seldom ascertained by reservation ; but was usually proportioned to the fine received by the king from his tenants in capite failing to attend in such expeditions. Fleta, lib. S.fol. 198.
This aid and fine were both of them called escuage d scuto quod assumitur ad servitium militare (Bract, ubi supra) ; in respect of the scutum which ought to be borne both by lord and tenant in such wars.
In this view escuage was a specific service (of a different kind from knight-service), in respect whereof only the tenant, on account of its subserviency to the military policy of the nation, was esteemed a knight, or rather as a military tenant. Wright, 126, 127.
Escuage, however, it must be allowed, was anciently, as it is at this day, more generally understood to denote a mulct or fine for a military tenant's defect of service, as the feodal severities began to abate. Mad. Hist. Exc. 438, 454, 457, 458, 462 ; 2 Roll, Abr. 509, § 1 ; Litt. § 102.
Our kings anciently taking advantage of, or perhaps complying with, this humour of their tenants, which made their actual services precarious, did sometimes, on occasion of war, without summons, assess a moderate sum upon each knight's fee, as a scutage or escuage, by which they might be enabled to provide stipendiaries. But as escuage of this sort was a previous commutation for service really imposed at the king's will, and not incurred as a fine, it was not long submitted to: in the time of King John, it was not only insisted upon as an undoubted right of the king's tenants, but the barons urged, and the king, by his charter, declared, that no escuage should be imposed or assessed nisi per commune concilium Regni. Sec Litt. § 97 ; 1 Inst. 72, a; Magna Charta, cap. 37.
Escuage thus becoming the only penalty for defect of service, many lords, by agreement between them and their tenants, fixed it a certain sum, to be paid as often as escuage should be granted, without regard to the rate assessed by parliament. Thus ascertained, it was called escuage certain, and because it did in effect discharge the tenant from all military service, the persons who held by such escuage were looked upon as socage tenants, and no longer esteemed as tenants by knight-service. Litt. §§ 98. 120; 1 Inst. 87, a.
As to escuage, see also the notes on 1 Inst. 73, 74. And
now escuage is expressly taken away by the 12 Car. 2. c. 24. (See post, III. 3.); and had fallen into disuse long before ; for there is no instance of parliament assessing it since the reign of Edward II. See further, 2 Comm. c. 5. p. 74, Sjc.
III. 1. It is so Absolute A Maxim, principle, or fiction, of the law of tenures, that all lands are holden either mediately or immediately of the king, that even the king himself cannot give lands in so absolute and unconditional a manner, as to set them free from tenure. And, therefore, if the king should grant lands without reserving any particular service or tenure, or if he should in express words declare, that his patentee should have lands absque aliquo inde reddendo ; yet the law or established policy of the kingdom would create a tenure; and the patentee should anciently (before the 12 Car. 2. c. 24.) have held of him in capite by knight-service. 1 Inst. 1. 65 ; 2 Inst. 501 ; Somn. on Gav. 126 ; 6 Rep. 6 ; 9 Rep. 123 ; Bro. Tenures, 3, 52. And now, in such case, or, if the king release the services to his tenant, it will not extinguish the tenure ; but the tenant shall, notwithstanding, hold by fealty, which, as was before observed, (I. 6.) is an incident essential to every tenure, and therefore cannot be released. 9 Rep. 123; Lan> of Tenures, 196 ; 2 Comm. c. 6. p. 86.
Lands thus holden are called tenures; which were principally divided, according to their services, into tenures by knight-service and in socage.
According to Blackstone, there seem to have subsisted among our ancestors four principal species of lay tenures, to which all others may be reduced: the grand criteria of which were the natures of the several services, or renders, that were due to the lords from their tenants. The services, in respect of their quality, were either free or base services ; in respect of their quantity, and the time of exacting them, were either certain or uncertain. Free-services were such as were not unbecoming the character of a soldier, or a freeman, to perform; as, to serve under his lord in the wars, to pay a sum of money, and the like. Base-services were such as were fit only for peasants, or persons of a servile rank ; as, to plough the lord's land, to make his hedges, to carry out his dung, or other mean employments. The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence; as, to pay a stated annual rent, or to plough such a field for three days. The uncertain depended upon unknown contingencies ; as, to do military service in person, or pay an assessment in lieu of it, when called upon; or to wind a horn whenever the Scots invaded the realm ; which are free services. Or to do whatever the lord should command; which is a base or villein service. 2 Comm. c. 5.
From the various combinations of these services have arisen the four kinds of lay tenure which subsisted in England till the middle of the 17th century; and three of which subsist to this day. Of these, Bracton (who wrote under Henry the Third) seems to give the clearest and most compendious account of any author ancient or modern, of which the following is the outline or abstract: " Tenements are of two kinds, frank-tenement, and villenage. And, of frank-tenements, some are held freely in consideration of homage and knight-service ; others in free-socage with the service of fealty only." And again, " Of villenages some are pure, and others are privileged. He that holds in pure villenage shall do whatsoever is commanded him, and always be bound to an uncertain service. The other kind of villenage is called villein-socage; and these villein-socrrien do villein services, but such as are certain and determined." See Bract. I. 4. tr. 1. c. 28. Of which the sense seems to be as follows: first, where the service was free, but uncertain, as military service with homage, that tenure was called the tenure in chivalry, per servitium militare, or by knight-service. Secondly, where the service was not only free, but also certain, as by fealty only, by rent and fealty, &c. that tenure was called liberum socagium, or free-socage. These were the only free holdings or tenements; the others were villenous or servile. As, thirdly, where the service was base in its nature, and uncertain as to time and quantity, the tenure was purum villenagium absolute or pure villenage. Lastly, where the service was base in its nature, but reduced to a certainty; this was still villenage, but distinguished from the other by the name of privileged villenage, villenagium privilegiatum; or it might be still called socage, (from the certainty of its services), but degraded by their baseness into the inferior title of villanum socagium, villeinsocage.
2. Tenures By Knight-service differed very little from proper feuds; but being now abolished by the 12 Car. 2. c. 24. and turned into free and common socage, inquiry shall be made at some length into that existing tenure. See ante I. 1; II. 1, 2; and 2 Comm. c. 5. I.
3, 4. Tenures in Socage are holdings by any certain conventional services that are not military; the word socage, according to Somner, being derived of the Saxon word soc (a liberty, privilege, or immunity,) and agium, a legal termination, signifying service or duty. Somn. Gav. 133, 143, 141 ; Litt. § 17 ; 1 Inst. 86, a; Britt. c. 66. § 438 ; Fleta, lib.l.c.8.
It seems, however, more probable and consistent to derive socage from soca, a plough ; or rather, ploughshare, (soc, Fr.) the ancient service reserved on this tenure being to plough the lord's land; but which is now changed into many other kinds of service. In this sense the tenure in socage is denominated, (like the tenure by knight-service,) simply from the name or nature of the service at first reserved. Wright 141, 4 ; 1 Inst. 86. (b) ; Craig de jure Feud. 65 ; 2 Comm. c. 6. and the notes there. But see Socage, Socagers.
By the degenerating of knight-service, or personal military duty, into escuage or pecuniary assessments, all the advantages (either promised or real) of the feodal constitution were destroyed, and nothing but the hardships remained. These may be collected from the foregoing detail, and are very justly and feelingly stated in 2 Comm. c. 5. p. 75, 76.
Palliatives were from time to time applied by successive acts of parliaments, which assuaged some temporary grievances. Till at length the humanity of King James I. consented, in consideration of a proper equivalent, to abolish them all, though the plan proceeded not to effect; in like manner as he had formed a scheme, and began to put it in execution, for removing the feodal grievance of heritable jurisdictions in Scotlond ; which has since been pursued and effected by the statute 20 Geo. 2. c. 43. 50. King James's plan for exchanging our military tenures seems to have been nearly the same as that which has since been pursued; only with this difference, that, by way of compensation for the loss which the Crown and other lords would sustain, an annual fee-farm rent was to have been settled and inseparably annexed to the Crown, and assured to the inferior lords, payable out of every knight's fee within their respective seignories;—an expedient seemingly much better than the hereditary excise, which was afterwards made the principal equivalent for these concessions. For at length the military tenures, with all their heavy appendages, (having, during the usurpation, been discontinued,) were destroyed at one blow by the 12 Car. 2. c. 24. which enacts, " That the Court of Wards and Liveries, and all wardships, liveries, primer seisins, and ouster-le-mains, values and forfeitures of marriages, by reason of any tenure of the king or others, be totally taken away. And that all fines for alienations, tenures by homage, knight's service, and escuage, and also aids for marrying the daughter or knighting the son, and all tenures of the king in capite, be likewise taken away. And that all sorts of tenures, held of the king or others, be
VOL. II.
turned into free and common socage; save only tenures in frankalmoigne, copyholds, and the honorary services of grand serjeanty." A statute which was a greater acquisition to the civil property of this kingdom than even Magna Charta itself: since that only pruned the luxuriances that had grown out of the military tenures, and thereby preserved them in vigour; but the statute of King Charles extirpated the whole, and demolished both root and branches. 2 Comm. c. 5. ad Jin.
The above expression, in the title and body of the act, as to tenures in capite, and which was also repeated by the speaker of the House of Commons in his address to the king on presenting the bill, is an inaccuracy of a very extraordinary nature. For tenure in capite signifies nothing more than that the king is the immediate lord of the land-owner; and the land might have been either of a military or socage tenure. See 2 Comm. c. 5. n.; Mad. Bar. Ang. 238 ; 1 Inst. 101, n. 5 ; and see Serjeanty.
The several changes made in the tenure of socage by this statute, 12 Car. 2. c. 24. (the benefits of which were fully extended to Ireland by the Irish act, 14, 15 Car.Z.c. 19.) are the following: viz. First, it takes away the aids pur file marier and pur/aire fitz chevalier, which were incident to all socage tenures. 2. It relieves socage in capite from the burden of the king's primer seisin, and of fines of alienation to the king, to both of which socage in capite was equally liable with tenure by knight-service in capite, though not so to wardship. 3. It extends the father s power of appointing guardians to children of both sexes; and thus supplied the means of still further preventing guardianship in socage. See Guardian. In all other respects the tenure in socage seems to be under the same circumstances, and attended with the same consequences, as it was before the Restoration.
Having thus reformed and improved this favourite tenure, the statute, in the next place, provides for the extension of it throughout the kingdom. This it effectually secures, by converting into socage all tenures by knight-service, as mentioned above; and by taking from the Crown the power of creating any other tenure than socage in future. 1 Inst. 93. (b) in n.; and see Id. 85, (a) in n.
It appears that there is nothing, however, in the above statute which in the least varies the tenure in Frankalmoigne; it being expressly saved in the statute, § 7. See Charitable Uses, Frankalmoigne, Mortmain. —Neither does it appear in any way to affect the tenure by burgage. See Burgage Tenure. —And it leaves the tenure by villeinage as it was before; one of the provisos declaring, that it shall not be construed to alter or change any tenure by copy of courtroll, or any services incident thereto. § 7.
A short statement relative to the ancient tenures of lands in Scotland, and their abolition, may not be irrelevant in this place. The following information is chiefly abstracted and digested from Bell's Dictionary of the Law of Scotland, tit. Feudal System, Tenures.
The prevailing tenure by which most of the land of Scotland was held, was nard-holding. It was this tenure which in every case of doubt was presumed; and appears to have been similar to the English knight-service in capite; for it was a military tenure, by which the vassal was bound to attend his superior to battle ; and the two casualties arising from this holding, viz. wardship, and marriage, had in view the security of the superior. The consequences of this tenure (like those of the tenure of knight-service in England) were greatly oppressive; and it was not till after the rebellion of 1745 that this tenure was abolished by the provision of the British act, 20 Geo. 2. c. 50 ; by which the lands held ward of the Crown, or of the prince, were converted into blanch holding; and those which were held ward of a subject were converted into feu-holding, at a rate appointed by the Court of Session, under authority given by the statute. 4N
Feu-holding was a tenure known while ward existed, which obliged the vassal to return farm-produce to the superior : on the abolition of Ward-holding the whole country became under either feu-holding, composed of the original feu-rights, or of those introduced by the act 20 Geo. 2. and which now consist of a return of farm-produce or money; or blanch-holding, which has merely the semblance of a feudal-holding, by the payment of Id. Scots, or some other elusory duty.
By these abolitions the effect of the feudal system was entirely done away in England, while in Scotlund, from circumstances peculiar to the practice there, slight traces of it are preserved in their conveyancing; but attended with such inconvenience and evils to the land rights of that country, as now to require a remedy, and peculiarly to call for the attention of those who are desirous of approving and assimilating the jurisprudence of Scotland with that of England. This, according to the writer above quoted, is an object truly important to the landed interest of Scotland, and one which would touch and harmonize many jarring points of the two systems.
The difference produced in Scotland and England is stated to have been in a great measure owing to the different effects produced by a statute common to both countries, the statute Quia Emptores, 18 Edw. 1, introduced into Scotland by stat. 2. c. 24. of Robert I. the purport of which in both countries was to put a stop to subinfeudations, by declaring that a vassal might sell his lands, provided he sold them to be held of his superior lord by the tenure and services therefore due: the English act produced the full effect intended, the purchaser by means of the sale holding immediately of the superior : but in Scotland, a charter of confirmation expressing the consent of the superior is held necessary to complete the conveyance; and though the superior is compellable to give such consent, yet the time requisite for obtaining it has introduced modes and forms dangerous and inconvenient in their effect, and wholly unknown in English conveyancing: the transmission of land by the law of Scotland still continuing to be regulated by feudal principles.
All English fees, or holdings, now fall under the notion of Socage-tenures ; which, though they vary in point of service, succession, &c. as improper feuds, yet retain the nature of feuds, as they are holden of a superior by fealty, and usually by some other certain service or acknowledgment; and as they are subject to relief and escheat. Wright, 144, 5. See further on the subject of socage, 27 Hen. 8. c. 20 ; Bract, lib. 2. c. 8. 85, 36; 2 Comm. c. 6.
The socage tenures are now divided by English lawyers, according to their duration, into estates in fee, for life, for years, and at will. In the present instance it may be sufficient to class them under estates in fee, and for life only.
Estates in fee are either fees-simple or fees-tail.
5. A Fee-simple, though it be, according to Littleton (§1.) Hereditas pura, is not so called because it imports an estate purely allodial, or free from all tenure; but in opposition to fees-conditional at common law, and fees-tail since the statute de donis. It imports a simple inheritance, clear of any condition, limitation, or restriction, to any particular heirs; and descendible to the heirs general, whether male or female, lineal or collateral. In the express language of our law " Tenant in fee-simple is he who hath lands or tenements to hold to him and his heirs for ever." Litt. § 1; Inst. 1; Fleta. lib. 3. e. 8.
In conveying, or conferring, these fees, or estates in fee, though they are now, contrary to the original purity of proper feuds, become vendible, the ancient form of donation is still preserved; and a feoffment, whether constituting or transferring a fief, or fee, retains even at this day the form of a gift. It is perfected and notified by the same solemnity of livery and seisin on investiture, as a pure feudal donation, and is still directed and governed by the same rules. 1 Inst.
9, a; 42, a; Fleta, lib. 3. c. 15. § 4, 5; Bracton, lib. %. c. 17. § 1. See Conveyance, Deed, Feoffment, Grant, $fc.
Tenures being thus derived from the feudal law, and partaking of their origin, fees, or estates in fee, could not, at common law, be aliened without the licence of the lord: (see ante, I. 4.) This introduced sub-infeudations by the tenant to hold of himself; which were so far restrained by Magna Charta, c. 32. as to compel the tenant of an inferior lord to keep in his own hands so much of the fee as would be sufficient to answer his services to the lord. The first statute that materially varied from this law of feuds, was the statute of Quia emptores, 18 Edw. 1. c. 1. which enabled such tenants to sell all or part of their lands, to hold of their lords by the same services as the feoffor had held. The king's tenants were, however, under several disabilities of alienation, but which were all finally removed by 34 Edw. 3. c. 15; and fines for alienation were paid to the king by his tenants, till abolished by the 12 Car. 2. c. 24. already so often alluded to. See 1 Comm. c. 5. p. 71; c. 6. p. 89.
As a tenant could not alien, so neither could he subject the tenancy or fee to his debts, until the stat. Westm. Z. (13 Edw. 1. st. 1.) c. 18. subjected a moiety of lands to execution ; leaving the other to enable the tenant to do the services of the tenure. But several other statutes, as 13 Edw. 1. st. 3. de Mercatoribus ; 27 Edw. 3. c. 9 ; 23 Hen. 8. c. 6. wera afterwards made, by which lands were subjected, in a special manner, to the particular liens created by those statutes. Vide 2 Inst. 394; and tit. Execution.
As tenants could not by the feudal or common law alien their tenancies without the licence or consent of the lord ; so neither could the lord himself alien his seigniory without the consent of his tenant. Hence sprung the doctrine of attornment, abolished by the 4 Ann. c. 16. § 9. See Attornment.
For the feudal restraints on devise, see Wills.
The rules which at present operate on the law of descents to the eldest son, and the general preference of males to females, as well as those which formerly excluded the immediate ascending line of relations, are all deducible from these feudal foundations of the law; and are very ably explained by Sir Martin Wright's treatise, pp. 173—185. See Descent; and further, tit. Fee and Fee-simple.
6. A Ff.e-tail (feudum tallialum), as distinguished from a fee-simple, is a fee limited and restrained to some particular heirs, exclusive of others. It is so denominated from the French, ta'dler, to cut, or cut off, on account of the particular restriction by which the heir-general was often, and collateral or remote heirs were always cut off. Fleta, lib. 3. c. 3 ; Bract, lib. 2. c. 5. § 3 ; Brit. c. 34 ; Litt. § 13. 18 ; 1 Inst. 18, 6; Spelm. Gloss, ad v. Feodum; and tit. Tail.
A fee thus limited was at common law known by the name of a fee conditional; so called from the condition expressed or implied in the gift or constitution of the fee, that in case the donee died without such particular heirs, the land or fee should revert to the donor. But our ancestors were, after heir or issue had, suffered at common law to alien such fee, and to defeat the donor as well as the heir; on a supposition that the condition was, for this purpose, satisfied or performed by the donee's having issue. See 1 Inst. 19, a j Plowd. Comm. 242, 5, b ; 247, a.
This practice being manifestly contrary to the intent of the gift, was restrained by slat IVestm. 2. (13 Edw. 1. st. 1.) c. 1 ; commonly called the Statute De donis conditionalibus, (or, shortly, the Statute De donis,) which required that the will and intent of the donor should be observed, and the fee so given should go to the issue, and for want of issue revert to the donor. So that, though Littleton says (§ 13.) that a fee-tail is by force of this statute, yet it is not to be understood as creating any new fee, but only severing and distinguishing the limitation from the condition, and restoring the effect of each; i. e. the limitation to the issue, and the reversion to the donor : yet as by means of this statute the limits tion was raised above the condition, the fee might thenceforth be denominated from the limitation, which thus became the substance, as it had before been the immediate end, of the gift. But this was at length eluded by the legal fictions of Fines and Recoveries. See that title, and also Forfeiture: and for further matter on this head of estates-tail, and the policy of making them alienable, see Tail and Fee-tail. Wright, 186, 9.
7. Estates For Life are either conventional or legal; of the former sort are such estates as are, in their creation, expressly given or conferred for life of the tenant only. These are of a feudal nature, held by fealty, and liable to conventional services. Of the other sort are, 1. Tenancies in tail after possibility of issue extinct. 2. Tenancies in dower, and by the curtesy. See the several titles, and also LifeEstates.
The first of these is distinguished by the particular description merely to suggest the legal disadvantages cast on such estate-tail, when turned to a hopeless inheritance. It arises where lands and tenements are given to a man and his wife in special tail, and either of them dies without issue had between them. The survivor is tenant in tail after possibility, &c. See Lift. §32; 1 Inst. 28; 11 Rep. 80; and ante, Tail after Possibility, &c.
8. Dower, called by Craig, Triens, and Tertia, and known to the feudists by several other names, was probably brought into England by the Normans, as a branch of their doctrine of fiefs or tenures; for we find no footsteps of dower in lands until the time of the Normans: but, on the contrary, provision is made by one of the laws of the Saxon king, Edmund, for the support of the wife surviving her husband, out of his goods only. Wright, 191, 192. See Dower.
9. Tenancies By The Curtesy, or per legem terrae, though so called as if they were peculiar to England, were known not only in Scotland, but in Ireland, and in Normandy also; and the like custom is to be found amongst the ancient Almain laws ; and yet it does not seem to have been feudal, nor does its original any where satisfactorily appear. Some English writers (Mirror, Selden, Cornell) ascribe it to Henry I.; but Nat. Bacon calls it a law of counter-tenure to that of dower, and yet supposes it as ancient as from the time of the Saxons; and that it was therefore rather restored than introduced by Henry I. Eng. Gov. 105, 147. But as there are no notices of this curtesy among the laws of the Saxons, or among those we have of Henry 1. we may, perhaps, with safety rely on Craig's conjecture, that it is derived from the civil law. Craig de Jure Feud. 312 ; Wright, 192, 195.
10. Forfeitures of estates in fee, though they were very many by the feudal and common law, [vide Spelm. in v. Felonid, 8e LI. H. 1. c. 43 ; Glanv. I. 9. c. 4; Bract. I. 2. c. 35. § 11, 12.] are reduced, as the law now stands, to forfeitures by attainders of treason and for murder, and by cesser.
Of the former, enough has been said at present. Ante, II. 7 ; and titles Escheat, Forfeiture, Treason.
The latter, which depended on true feudal principles, and introduced many feudal hardships, was at length regulated by the statute of Gloucester, 6 Edw. 1. c. 4 ; and stat. Westm. 2, 13 Edw. 1. c. 21. These statutes provided, that in case a tenant should cease to pay his rent for two years, and there should not, during that time, be sufficient distress on the land, the lord might have a cessavit; and by means thereof, if the tenant did not tender his arrears before judgment, the lord should upon such cesser recover the land, or fee itself, and bar the tenant for ever. See 2 Inst. 295, 400, 460 ; Booth's Real. Act, 133, 134; F. N. B. 208, 209; Wright, 196—202; and ante, Cessavit, Rent.
Estates for life are also forfeitable by waste, and by all such.acts as tend to defeat the reversion. 1 Inst. 251, 252. See Life-Estates.
There are yet two kinds of estates which, though they fall under the head of socage, are denominated and usually
treated as particular species of tenure, viz. burgage and gavelkind.
11. Burgaoe-tenure, so called to denote the particular service or tenure of houses in ancient cities or boroughs, is certainly a species of socage-tenure; the tenements being holden by a certain annual rent in money, or by some service relating to trade; and not by military or other service that had no such relation. The qualities of this tenure vary according to the particular customs of every borough, and that without prejudice to the feudal nature of it. See Wright, 204,235; Mad. Firma Burgi; Litt. § 162—167; Co. Lilt. 109; Somn. on Gav. 142, 148; Taylor on Gav. 171; 1 Inst. 109 a; Spelm.; Craig de Jure Feud. 68 ; Jenk. Cent. 127 ; 2 Comm. c. 6. p. 82 ; and ante, Burgage.
12. The properties of Gavelkind Tenure are so many, and the qualities of it so different from those of any other tenure, that it seems to have been doubted whether it be a tenure of feudal nature or not. The gavelkind tenant retains strong marks of propriety ; as power to alien even at the age of fifteen, Somn. Gav. 8, 9; freedom from forfeiture for felony; and many other privileges unknown to persons holding their lands by any other kind of tenure.
It is however certain that the tenure is strictly feudal, and, like the more usual tenures by knight-service and socage, is denominated from the kind or nature of the prevailing service, which was, as the name imports, tributary or censual; the word gavelkind being (according to Somner on Gav. 12, 35, 37; and see Blount in v.) a compound of the Saxon words gavel, gafel, or gable, a tribute, tax, or rent; and gecynde, kind, sort, or quality; thus directly importing that such lands are censual or rented; although they are also subject to other kinds of service, this tenure in fact being, like burgage, a kind of socage-tenure, and liable to the same feudal burdens and forfeitures. See fr'right, 206—212.
As for the famous partable quality of most of the lands in Kent, [not all, see Hale, Hist. C. L. 225 ; 31 Hen. 8. c. 3; but see 1 Mod. 98 ; 2 Sid. 153 ; Cro. Car. 465 ; Lutw. 236, 754, by which it appears that all lands in Kent shall be presumed, without pleading, to be gavelkind; unless they can be proved to be disgavelled,] it was not a particular or proper effect of gavelkind tenure. But it was rather the ancient course of descent retained and continued in that county Somn. on Gav. 89, 90. And however particular this course of descent (whereby the lands of the father are equally divided among all the sons ; and of a brother dying without issue, among air his brethren, Litt. § 210; Co. Litt. 140.) may now appear to us, yet if we consider gavelkind as a species of socage-tenure, and that all tenures by socage, or of that nature, were anciently in point of succession divisible, and that they might, without prejudice to their feudal nature, descend equally or otherwise, as best suited the genius and usage of every county; it will appear much more extraordinary that all other counties should depart from this, the more ancient and natural course of descent, than that this particular county should retain it. Wright, 213. See further, 2 Comm. c. 6 ; and ante, Gavelkind.
13. Under this head, tenure, something ought to be said of copyholds ; though they are not reducible to any of the preceding divisions of the subject.
Copyholds are the remains of villenage ; which, considered as a tenure, was not entirely Saxon, Norman, or feudal, but a tenure of a mixed nature, advanced by the Normans upon the Saxon bondage, and which gradually superseded it. See F. N. B. 12. C.; 1 Inst. 58 a; Bacon's Use of the Law, 42, 43 ; Litt. tit. Villenage ; Old Ten. ; Somn. Gav. 65, 66.
The Normans, according to Sir William Temple, " finding among us a sort of people who were in a condition of downright servitude, used and employed in the most servile works, and belonging (they, their children, and effects) to the lord of the soil, like the rest of the stock or cattle upon it;" enfranchised all such as fell to their share; by admitting them to fealty in respect of the little livings they had hitherto heen allowed to possess, merely as the scanty supports of their base condition; and which they were still suffered to retain upon the like service as they had in their former servitude been used and employed in. But this possession, as now clothed with fealty, and by that means advanced into a kind of tenure, differed very much from the ancient servile possession, and was from henceforth called villenage. See Temp. Introd. 59 ; Mirror, b. 2. c. 28 ; Bract, lib. 2. c. 8. § 1 ; Litt. § 206, 207; Leg. W. 1. c. 29, 33; in which last the word vilain seems first applied to such tenant. See also tit. Villein; and Spelm. Gloss, in v. Servus.
Our Saxon ancestors having submitted to the feudal law, •which to them was a law of liberty, perhaps imitated the Normans in this particular; but neither did our Saxon or Norman ancestors mean to increase or strengthen the possession of their villeins ; but to leave that altogether as dependent and precarious as before; save only that, as by their admission to fealty, their possession was put, in some measure, upon a feudal footing, the lords could not deal with them so wantonly as before ; (vide ante, I. 4 ;) and at length the uninterrupted benevolence and good nature of the successive lords of many manors having, time out of mind, permitted them, or them and their children, to enjoy their possessions in a course of succession, or for life only, became customary and binding on their successors, and advanced such possession into the legal interest or estate we now call copyhold; which yet remains subject to the same servile conditions and forfeitures as before, they being all of them so many branches of that continuance or custom which made it what it is. Somn. Gav. 58 ; Spelm. Gloss, v. Feudum ; Bro. tit. Villenage.
From this view of the origin and nature of copyholds we may possibly collect the ground of the great variety of customs that influence and govern those estates in different manors; it appearing that they are only customary estates, after the ancient will of the first lords, as preserved and evidenced by the rolls, or kept on foot by the constant and uninterrupted usages of the several manors wherein they lie. Litt. § 73, 75, 77; Wright, 220.
As to copyholds, see further, 2 Comm. c. 6. Ill; and titles Ancient Demesne, Copyholds, Manors, Villeins, Sfc.
From the above compendious view of the principal and fundamental points of the doctrine of tenures, both ancient and modern, may be observed the mutual connection and dependence that all of them have upon each other. And upon the whole it appears, that whatever changes and alterations these tenures, in progress of time, underwent, from the Saxon era to 12 Cha. 2. all lay-tenures are now in effect reduced to two species: free tenure in common socage, and base tenure by copy of court roll. There is one other species of tenure reserved by the statute of Charles II. which is of a spiritual nature, and called the tenure in Frankalmoigne. See that title. TERCE, thirds: the Scotch term for dower.
TERM, terminus.'] Signifies commonly the limitation of time or estate; as a lease for term of life, or years, &c. Bract, lib. 2. Term is also a space of time, wherein the superior courts at Westminster sit. See Terms.
TERMOR, tenens ex termino."] He that holds lands or tenements for term of years or life. Litt. § 100. See Lease, I. 1.
TERMS. Those spaces of time, wherein the courts of justice are open, for all that complain of wrongs or injuries, and seek their rights by course of law or action, in order to their redress; and during which the courts in Westminsterhall sit and give judgments, &c. But the High Court of Parliament, the Chancery, and inferior Courts, do not observe the terms; only the Courts of King's Bench, the Common Pleas, and Exchequer, the highest courts at common law.
Of these terms there are four in every year, viz. Hilary Term, which formerly began the 23d of January, and ended the 12th of February, (unless on Sundays and then the day
after); Easter Term, that began the Wednesday fortnight after Easter Day, and ended the Monday next after Ascension Day; Trinity Term, which began the Friday after Trinity Sunday, and ended the Wednesday fortnight after; and Michaelmas Term, that began the 6th of November, and ended the 28th of November, (unless on Sundays, and then the day after.) See post.
These terms are supposed by Selden to have been instituted by William the Conqueror: but Spelman hath clearly and learnedly shown, that they were gradually formed from the canonical constitutions of the church; being indeed no other than those leisure seasons of the year, which were not occupied by the great festivals or fasts, or which were not liable to the general avocations of rural business. Throughout all Christendom, in very early times, the whole year was one continual term for hearing and deciding causes. For the Christian magistrates, to distinguish themselves from the heathens, who were extremely superstitious in the observation of their dies fasti et nefasti, went into a contrary extreme, and administered justice upon all days alike; till, at length, the ¦Church interposed and exempted certain holy seasons from being profaned by the tumult of forensic litigations. As, particularly, the time of Advent and Christmas, which gave rise to the winter vacation; the time of Lent and Easter, which created that in the spring; the time of Pentecost, which produced the third; and the long vacation between Midsummer and Michaelmas, which was allowed for the hay time and harvest. All Sundays also, and some particular festivals, as the days of the Purification, Ascension, and some others, were included in the same prohibition: which was established by a canon of the church, A. D. 517, and was fortified by an imperial constitution of the younger Theodosius, comprised in the Theodosian code. Spelm. of the Terms.
Afterwards, when our own legal constitution came to be settled, the commencement and duration of our law terms were appointed with an eye to those canonical prohibitions; and it was ordered by the laws of King Edward the Confessor, (e. 3. De temporibus et diebus pacis,) that from the Advent to the octave of the Epiphany, from Septuagesima to the octave of Easter, from the Ascension to the octave of Pentecost, and from three in the afternoon of all Saturdays till Monday morning, the peace of God and of Holy Church shall be kept throughout all the kingdom. And so extravagant was afterwards the regard that was paid to these holy times, that though the author of the Mirror mentions only one vacation of any considerable length, containing the months of August and September; yet Britlon is express, that in the reign of King Edward I. no secular plea could be held, nor any man sworn on the Evangelists, in the times of Advent, Lent, Pentecost, harvest, and vintage, the days of the great Litanies, and all solemn festivals. But he adds, that the bishops did nevertheless grant dispensations, (of which many are preserved in Rymer's Fcedera,) that assizes and juries might be taken in some of these holy seasons. And soon afterwards a general dispensation was established by stat. Westm. 1, 3 Edw. 1. c. 51. which declares, that, " by the assent of all the prelates, assizes of novel disseisin, mort d'anceslor, and darrein presentment, shall be taken in Advent, Septuagesima, and Lent; and that at the special request of the king to the bishops." The portions of time, that were not included within these prohibited seasons, fell naturally into a fourfold division, and, from some festival day that immediately preceded their commencement, were denominated the Terms of St. Hilary, of Easter, of the Holy Trinity, and of St. Michael; which terms were subsequently regulated and abbreviated by several acts of parliament; particularly Trinity Term by 32 Hen. 8. c. 21. and Michaelmas Term by 16 Car. 1. c. 6. and again by 24 Geo. 2. c.48.
There were until recently in each of these terms stated days called days in banc (dies in banco), that is, days of appearance in the Court of Common Bench. They were generally at the distance of about a week from each other, and had reference to some festival of the church. On some one of these days in banc, all original writs must have been made returnable; and therefore they were generally called the returns of that term: whereof every term had more or less, said by the Mirror to have been originally fixed by King Alfred, but certainly settled as early as the statute of 51 Hen. 3. st. 2. Easter Term had five returns; and all the other terms four. But though many of the return days were fixed upon Sundays, yet the court never sat to receive these returns till the Monday after; and therefore no proceedings could be held, or judgment could be given, or supposed to be given, on the Sunday. See Salk. 627 ; 6 Mod. 250; 1 Jon. 156, Swan v. Broome; Bro. P. C.
The first return in every term was, properly speaking, the first day in that term; as for instance the octave of St. Hilary, or the eighth day inclusive after the feast of that saint, which falling on the 13th of January, the octave therefore, or first day of Hilary Term, was the 20th of January; and thereon (one judge of) the court sat to take essoigns or excuses for such as did not appear according to the summons of the writ; wherefore this was usually called the Essoign Day of the Term. But on every return day in the term, the person summoned had three days of grace beyond the day named in the writ, in which to make his appearance ; and if he appeared on the fourth day inclusive (quarto die post), it was sufficient.
The commencement and duration of these terms are now regulated by the 11 Geo. 4. and 1 Win. 4. c. 70, which by § 10, enacts that in 1831 and afterwards, Hilary Term shall begin on the 11th and end on the 31stJanuary; EasterTerm begin on the 15th April and end 8th May ; Trinity Term begin on the 22d May and end 12th June; and Michaelmas Term begin on the 2d and end on the 25 th November: provided if the whole or any number of the days intervening between the Thursday before and the Wednesday next after Easter Day shall fall within Easter Term, there shall be no sittings in Banc on any of such intervening days, but the term shall be prolonged for such number of days of business as shall be equal to the intervening days exclusive of Easter Day, and the commencement of the ensuing Trinity Term shall in such case be postponed, and its continuance prolonged for an equal number of days of business.
By the 1 Wm. 4. st. 2. c. 3. § 3. if any of the days above named for ending the terms fall on a Sunday, the succeeding Monday shall be the last day of the term.
Where, however, the fixed day of commencement is a Sunday, it must be considered the first day of term. 1 D. P. C. 63.
By § 7 of the same act it is enacted, that not more than twenty-four days, exclusive of Sundays, after Hilary Term and Michaelmas Terms (nor more than six days exclusive of Sunday, after Easter Term), to be reckoned consecutively immediately after such terms, shall be appropriated to sittings at Nisi Prius in London and Middlesex : provided that in any trial at bar it shall be competent for the judges to appoint such day or days as they shall think fit; and such days, if in vacation, shall for the purpose of such trials, be taken to be a part of the preceding term ; and any day not within the twenty-four days may be appointed for trials at Nisi Prius, with the consent of the parties.
The essoin or general return days were also provisionally altered by the above act, but are now fixed by the 1 Wm. 4. c. 3. § 2. See Essoin Day of the Term.
Formerly all process, whether mesne or final, and whether in real, mixed, or personal actions, must have been tested and made returnable, and many other proceedings in a cause could only be transacted, in term time ; but by several recent statutes and rules of court (particularly by the 1 Wm. 4. c. 7; 2 Wm. 4. c. 39,) the distinction between term and vacation, with respect to the bringing and prosecution of personal
actions, has been abolished. See the various alterations enumerated in 3 Chilly's General Practice, c. 3.
But although all or the greatest part of the technical distinctions between term and vacation, essoin days, and general return days, or return days certain, are removed as they affected most personal actions, yet, with respect to such actions as are not within the Uniformity of Process Act, and as regards all matters that must be transacted in Banc, the distinction between term and vacation still exists. See 3 Dowl. P. C. 100.
Terms have been adjourned, and returns of writs and processes confirmed. 1 W. <^ M. sess. 1. c. 4.
The issuable terms are Hilary and Trinity Terms only; they are so called because in them the issues are joined and records made up of causes to be tried at the Lent and Summer Assizes, which immediately follow. 2 Lil. Abr. 568. See Assizes, <^c.
The day for swearing the lord mayor of London is appointed for November 9th, unless it be Sunday, and then the next day. The Morrow of St. Martin yearly appointed for nominating sheriff's in the Exchequer.
The terms in Scotland are Martinmas, Candlemas, Whitsuntide, and Lammas, at which times the Court of Exchequer, &c. there is to be kept. 6 Ann. c. 6.
The terms of our universities for students are different in time from the terms of the courts of law.
Terms Of The Law. Artificial or technical words and terms of art, particularly used in and adapted to the profession of the law. 2 Hawk. P. C. c. 25. § 87.
Terms For Payment Of Rent, or Rent Terms. The four quarterly feasts upon which rent is usually paid. Cartular. Sti. Edmund. 238. See Lease, Rent.
Terms Legal And Conventional for payment of rents in Scotland. The legal terms are Whitsunday and Martinmas, at the former of which it is presumed that the crop has been fully sown, and therefore where the proprietor survives that term, one-half of the year's rent is supposed to be due; at the latter the whole crop is presumed to be reaped, and therefore the whole year's rent is taken as due; and these, for the purpose of settling the interest of heirs and executors, &c. are held to be the terms of payment, whatever may be the conventional terms for payment of the rent de facto. See as to the English law, Apportionment, Rent, SfC.
Terms For Years, to secure payment of mortgages and terms to attend the inheritance. See Mortgage, Trust, Use.
TERRA, In all the surveys in Domesday Register, is taken for arable land, and always so distinguished from pratum, SfC Rennet's Gloss.
Terra Affirmata. Land let to farm.
Terra Boscalis. Woody lands, according to an inquisition anno 8 Car. 1.
Terra Culta. Land that is tilled or manured, as terra inculla is the contrary. Mon. Angl. i. 500.
Terra Debilis. Weak or barren ground. Inq. 22 R. 2.
Terra Dominica Vel Indominicata. The demesne land of a manor. Cowcll.
Terra Excultabilis. Land which may be ploughed. Mon. Angl. i. 426.
Terra Extendenda. A writ directed to the escheator, &c. willing him to inquire and find out the true yearly value of any land, &c. by the oath of twelve men, and to certify the extent into the Chancery, &c. Reg. of Writs, 293.
Terra Frusca. Fresh land, or such as hath not been lately ploughed ; likewise written terra frisca. Mon. Angl. ii. 327.
Terra Hydata. Land subject to the payment of hydage, as the contrary was terra non hydata. Selden.
Terra Lucrabilis. Land that may be gained from the sea, or inclosed out of a waste, to a particular use. Mon. Angl. i. par. fol. 406.
Terra Normanorum. Such land in England as in the beginning of Henry HI. had been lately held by some noble Norman, who, by adhering to the French king or dauphin, had forfeited his estate, which by this means became an escheat to the crown, and restored or otherwise disposed of at the king's pleasure. Paroch. Antiq. 197.
Terra Nova. Land newly asserted and converted from wood ground to arable, terra noviter concessa. Spelm.
Terra Putura. Land in forests held by the tenure of furnishing man's meat, horse meat, &c. to the keepers therein. See Putura.
Terra Sabulosa. Gravelly or sandy ground. Inq. 10 E. 3. n. 3.
Terra Testamentalis. Land held free from feodal services in allodia, or in socage descendible to all the sons, and therefore called gavelkind, being devisible by will. Such land was thereupon called terra testamentalis, as the thane who possessed them was said to be testamenlo digitus. See Spelman of Feuds, c. 5.
Terra Vestita. Is used in old charters for land sown with corn. Cowell.
Terra Wainabilis. Tillable land. Cowell.
Terra Warennata. Land that has the liberty of free warren. Rot. Pari. 21 Edw. 1.
TERRAGE, terragium.'] Seems to be an exemption d precariis, viz. boons of ploughing, reaping, &c, and perhaps from all land taxes, or from money paid for digging and breaking the earth in fairs and markets. Cowell.
TERRARIUS. A land-holder, or one who possesses many farms of land. Leg- rV. 1.
TERRARIUS COSNOBIALIS. An officer in religious houses, whose office was to keep a terrier of all their estates, and to have the lands belonging to the houses exactly surveyed and registered; and one part of his office was to entertain the better sort of convent-tenants when they came to pay their rents, &c. Hist. Dunelm.
TERRE-TENANT, TERTENANT, terra tenens.'] He who hath the actual possession of the land : for example, a lord of a manor has a freeholder, who letteth out his freehold to another, to be possessed and occupied by him, such other is called the tertenant. West. Symb. par. 2 ; Britton, c. 29. In the case of a recognizance, statute, or judgment, the heir is chargeable as tertenant, and not as heir ; because, by the recognizance or judgment, the heir is not bound, but the ancestor concedit that the money de terris, fyc. levetur. 3 Rep. 12. Vide Cro. Eliz. 872 ; Cro. Jac. 506; and titles Elegit, Exection, Scire Facias.
1 ERRIER, anciently called terror; terrar'wm, catalogus terrarum.'] A land roll or survey of lands, either of a single person or of a town, containing the quantity of acres, tenants' names, and such like ; and in the Exchequer there is a terrier of all the glebe lands in England, made about 11 E. 3. See 18 Eliz. c. 17.
Ecclesiastical terriers, which contain a detail of the temporal possessions of the church in every parish, are made by virtue of an Ecclesiastical Canon (87), which directs them to be kept in the bishop's registry; and it is not unusual to deposit a copy in the chest of the parish church. These being made under authority, are admissible evidence as a species of ecclesiastical memorials or records of the possessions of the church, and are as strong in their nature as any that can be adduced for such purposes. 3 Price, 380.
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.
The mere execution of a lease does not necessarily make a tenant liable as an owner or operator under CERCLA § 107(a). However, as explained below, EPA recognizes the uncertainty regarding the potential liability of certain tenants under CERCLA, and the Brownfields Amendments’ explicit reference to tenants, and offers some general guidance below to be used by EPA in exercising enforcement discretion.
This memorandum addresses those circumstances in which EPA, on a site-specific basis, intends to exercise its enforcement discretion not to enforce against the following categories of tenants:
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.
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 questions 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 nonnavigable 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 easement 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!
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 )
PROCLAMATION TERMINATING THE NATIONAL EMERGENCY, 2010-0021996 Shasta County Cour
THE PHONY NEGATIVE 3.6 pH AMD TRICK - THE PHONY RUSTY SHOVEL TRICK
DEMAND: DELETE FINAL NPL LISTING
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.
- Anchorage wetlands- http://www.muni.org/departments/planning/physical/envplanning/Pages/default.aspx
- Juneau wetlands - http://www.juneauwatersheds.org/watershed_library.html
- Kenai Borough wetlands - http://www.kenaiwetlands.net/
- Homer wetlands - http://planning.ci.homer.ak.us/
- Mat-Su wetlands http://www.matsugov.us/Planning/index.php?option=com_content&view=article&id=195:participate-in-your-community&catid=57:projects-plans&Itemid=20192
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.
"The Billion Dollar Settlement" Cashout Advance, Iron Mountain Mine Superfund
Cashout Advances are funds received by EPA, a state, or PRP under the terms of a
settlement agreement (e.g., consent decree) to finance response action costs at a specified
Superfund site. Under CERCLA Section 122(b)(3), cashout funds received by EPA are
placed in site-specific, interest bearing accounts known as special accounts and are used for
potential future work at such sites in accordance with the terms of the settlement agreement.
Funds placed in special accounts may be disbursed to PRPs, to states that take responsibility
for the site, or to other Federal agencies to conduct or finance response actions in lieu of EPA
without further appropriation by Congress. As of September 30, 2009 and 2008, cashout
advances are $572 million and $489 million as restated, respectively.a. “Right of the People.” The first salient feature of
the operative clause is that it codifies a “right of the people.”
The unamended Constitution and the Bill of Rights
use the phrase “right of the people” two other times, in the
First Amendment’s Assembly-and-Petition Clause and in
the Fourth Amendment’s Search-and-Seizure Clause. The
Ninth Amendment uses very similar terminology (“The
enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by
the people”). All three of these instances unambiguously
refer to individual rights, not “collective” rights, or rights
that may be exercised only through participation in some
corporate body.5in a context other than “rights”—the famous preamble
(“We the people”), §2 of Article I (providing that “the people”
will choose members of the House), and the Tenth
Amendment (providing that those powers not given the
Federal Government remain with “the States” or “the
people”). Those provisions arguably refer to “the people”
acting collectively—but they deal with the exercise or
reservation of powers, not rights. Nowhere else in the
Constitution does a “right” attributed to “the people” refer
to anything other than an individual right.6
What is more, in all six other provisions of the Constitution
that mention “the people,” the term unambiguously
refers to all members of the political community, not an
unspecified subset. As we said in United States v. Verdugo-
Urquidez, 494 U. S. 259, 265 (1990):
EMERGENCY PLANNING, COMMUNITY RIGHT-TO-KNOW, POLLUTION PREVENTION
"U.S. Marshall McKeough explained the object of the meeting in a few pertinent remarks. He said that Mr. Hutchens told him on yesterday that unless they give up the water in the creek aforesaid, that he, Hutchens, would take a body of men and take the water by force of arms and hold the same until he and his men were whipped off the ground.
His party as above mentioned claim right of possession of the water, and are suing for breach of Close and holding over by deceit.
In this dilemma Mr. Arman calls upon all his fellow-miners and countrymen to assist him in defending his rights, agreeable to the old miners' laws.
They said that this was a serious affair, they are willing to defend the old established miners' laws and the right."
Government Settles Claims of Native American Farmers and Ranchers
“Whenever the legislators endeavor to take away and destroy the property of the people, . . . they put themselves into a state of war with the people who are thereupon absolved from any further obedience . . . .” Id. 222, at 233 (emphasis added). Locke
[$ 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 IO, 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."Pursuant to adjournment meeting met at 1 o'clock, were called to order by the tenant-in-chief, Mr. Hutchens.
Committee reported as follows, having thoroughly investigated the laws and customs of the miners of Iron Mountain.:We fully concur in the opinion that Mr. Arman is fully entitled to all the water from the mines and
in Slickrock Creek, Boulder Creek, Spring Creek, and Flat Creek, except four torn-heads each, which is allowed for the beds of the streams ; also that the burning of his forest and buildings, pillage of stone, sequestration of ore wastes,
and the destruction of his dam and other property and the taking of his water from his race by force of arms are malicious acts, and should not be submitted to by those who are in favor of law and order.
"On motion, the report was received and the committee discharged.
"On motion it was 'Resolved, That we assist Mr. Arman in turning the water into his race and that we sustain him to the last extremity in keeping it in the race.'
"On motion, the meeting then adjourned for the purpose of carrying this resolution into effect."Whether the law is in force at any given time is for the jury. Harvey vs. Ryan, 42 Cal. 626.
KEEPER OF THE ROLL, THE DEER AND THE WOOD - CHIEF-IN-EQUITY
SPECIAL DEPUTY SERGEANT INSPECTOR GENERAL
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 homeownersThe 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.
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
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 NW 127).
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.
Mr. T.W. Arman, proprietor of Iron Mountain Mine, splashing in acid mine drainage; "the world's worst water"?
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 ."
Extent of the Taking
It is well established that a physical taking is defined by the government's corporeal violation of private property. As the Supreme Court has noted, “where real estate is actually invaded . . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” Loretto v. Teleprompter Manhattan CATB Corp ., 458 U.S. 419, 427 (1982)
(quoting Pumpelly v. Green Bay Co. , 80 U.S. (13 Wall.) 166 (1871)). The Court has similarly emphasized that, “[t]he hallmark of a physical taking is government occupation of real property.”
Alameda Gateway, Ltd. v. United States , 45 Fed. Cl. 757, 762 (1999), quoting Loretto , 458 U.S. at 426 (1982).
However, it has also recognized the possibility of compensable stigmatic injuries that extend beyond the tangible aspects of a physical taking. In Hendler v. United States , it held that “if fear of a hazard would affect the price a knowledgeable and prudent buyer would pay to a similarly well-informed seller, diminution in value caused by that fear may be recoverable as part of just compensation.” Hendler v. United States , 38 Fed. Cl. 611, 625 (1995) (quoting United States v. 760.807 Acres of Land , 731 F.2d 1443, 1447 (9th Cir. 1984)), aff'd 175 F.3d 1374 (Fed. Cir. 1999); see also Shelden v. United States , 34 Fed. Cl. 355, 373 (1995) (reducing post-taking fair market value of property due to stigma associated with erosion and earthquake damage).
Iron Mountain Mines, Inc. and T.W. Arman contends that the physical taking of the Open Pit produced a compensable impact on the entire Property's value. Iron Mountain Mines, Inc. and T.W. Arman claims that the remedial action produced two linked effects flowing from the EPA's physical occupation of the Open Pit. The first effect was the physical taking of the Open Pit itself, which continues to prevent Iron Mountain Mines, Inc. and T.W. Arman from commercially exploiting the Open Pit. The second effect was the diminution of the Property's overall market value due to the stigma associated with possible liability to any buyer for the CERCLA action. It should be noted that this “stigma” amounts to considerably more than a mental attitude on the part of buyers. It is based upon a very real possibility that any commercial activity on the property might lead to regulatory prohibition or real physical danger. While Iron Mountain Mines, Inc. and T.W. Arman are not convinced that in fact the Property is unusable, it seems clear that a reasonably prudent buyer would consider that quite probable, and be unwilling to purchase the property at any positive price.
Iron Mountain Mines, Inc. and T.W. Arman have expert testimony stating that, “the mere existence of this huge quantity of waste on the property, even in a constructed repository, creates too great a potential [CERCLA] liability for anyone to consider purchasing the land.”
In summary, Iron Mountain Mines, Inc. and T.W. Arman's experts in the valuation of contaminated property argue that anyone buying the Property before the EPA completes the removal action and removes the sludge from the Open Pit would potentially bear liability under CERCLA for costs incurred in the removal action.
Consequently, a reasonable purchaser would discount the purchase price of the Property by at least the amount of the liability assumed in the post-removal action condition of the Property.
Similarly, Iron Mountain Mines, Inc. and T.W. Arman will present evidence that once the presence of hazardous waste has stigmatized property, a reasonable purchaser of said property would discount the sales price for the costs of removal of all of the offending material currently disposed in the Brick Flat Pit. Iron Mountain Mines, Inc. and T.W. Arman noted that the stigma flows from the possibility of leakage of contaminants from the waste in the Open Pit and the potential “consequent liability placed upon Iron Mountain Mines, Inc. and T.W. Arman under CERCLA.”.
According to Iron Mountain Mines, Inc. and T.W. Arman, it follows that just compensation should be the difference between the Property's pre-taking fair market value and the sum resulting from the cost of the removal of the hazardous waste in the Open Pit added to the CERCLA liability incurred by the Property's Iron Mountain Mines, Inc. and T.W. Arman.
The stigma associated with general contamination dramatically affects the entire Property's value.
Hendler and Shelden permit recovery for diminution in value due to the general fear of a hazard caused by a taking, assuming that the hazard's affect on marketability is measurable. See Hendler , 38 Fed. Cl. at 625 (quoting United States v. 760.807 Acres of Land , 731 F.2d 1443, 1447 (9th Cir. 1984)
(“[I]f fear of a hazard would affect the price a knowledgeable and prudent buyer would pay to a similarly well-informed seller, diminution in value caused by that fear may be recoverable as part of just compensation.”)); see Shelden , 34 Fed. Cl. at 373. It is generally recognized that general market perception of contamination on a future development site results in the depreciation of property value.
The Iron Mountain Mines, Inc. and T.W. Arman's argument is that the Open Pit's taking negatively impacts the entire Property's value on the basis of the evidence.
In analyzing this impact, the' computations regarding the Property's diminution in value as a result of the stigma associated with hazardous waste.
The Removal Action As A Special Benefit
When only a portion of private property is physically taken, the amount of compensation
owed for the property of Iron Mountain Mines, Inc. and T.W. Arman must be reduced by any special benefits from the government action accruing to the remainder of the property. Hendler , 38 Fed. Cl. at 1380. Special benefits are benefits which inure to the particular property suffering the taking, rather than to the general public. The United States may argue that the removal action conferred a special benefit upon the
Property which we should deduct from any ultimate damages valuation.
Such arguments, however, leads nowhere. Even if the Court accepts the government's argument that the removal action benefits the Property's value, the United States will be unable to include any evidence regarding the amount by which such benefit increases the Property's value. Thus, no offset of compensable damages for the benefits allegedly conferred by the removal action are possible.
Having resolved these issues, let us now turn to the determination of the Property's fair market value as a function of calculating the just compensation owed to the Iron Mountain Mines, Inc. and T.W. Arman.
Just compensation for a taking under the Fifth Amendment requires that a deprived owner be put “in the same position monetarily as he would have occupied if his property had not been taken.” Almota Farmers, 409 U.S. at 474 (internal citations omitted). The necessary corollary to this basic damages principle is that the Court may not place a deprived owner in a better position by a Fifth Amendment taking recovery than if the taking at issue had not occurred.
The fair market value of the highest and best use of the Property before and after the remedial action.
urts to be the best evidence of fair market value, and thus preferable to other forms of valuation.” Stearns Co., Ltd. v. United States , 53 Fed. Cl. 446, 458 (2002) (citing United States v. 50 Acres of Land , 469 U.S. 24 (1984)); Kirby Forest Indus.
Inc. v. United States , 467 U.S. 1 (1984). Other valuation methods may prove useful, but a
comparable sales methodology is a generally superior indicator of value if an active real estate
market existed in the vicinity of the subject property prior to the taking. See Florida Rock Indus. ,
Inc. v. United States , 45 Fed. Cl. 21, 35 (1999) (citing Whitney Benefits, Inc. v. United States , 18
Cl. Ct. 394, affirmed 926 F.2d 1169 (Fed. Cir.), cert. denied , 502 U.S. 952 (1991)).
Here, Iron Mountain Mines, Inc. and T.W. Arman valued the Property's worth for mining since no comparable comparison was or is available, and by analyzing the Property's pre-taking future income stream.
Iron Mountain Mines, Inc. and T.W. Arman claims that future income stream analysis is appropriate here because the valuation of mineral interests is preferably done by determining the present value of a future income stream. Iron Mountain Mines, Inc. and T.W. Arman supports this view by arguing that the federal government, in its Uniform Appraisal Standards for Federal Land Acquisitions, states that, “[p]roperty having a highest and best use for mineral production may be appraised utilizing an income approach when comparable sales are lacking.” Uniform Appraisal Standards at 23-24 (internal citations omitted). Iron Mountain Mines, Inc. and T.W. Arman further points to Whitney Benefits, Inc. v. United States , in which the Federal Circuit approved of the use of future income stream analysis, as support for the relevance of future
income stream analysis in the present case. See 962 F.2d 1169 (Fed. Cir. 1991).
Deprived owners Iron Mountain Mines, Inc. and T.W. Arman are entitled to interest on just compensation awarded pursuant to Fifth Amendment takings. Stearns Co., Ltd, v. United States , 53 Fed. Cl. 446, 466 (2002) (citing Kirby Forest Indus. v. United States , 467 U.S. 1 (1984)). Thus, we award Iron Mountain Mines, Inc. and T.W. Arman compounded prejudgment interest from the date of the taking until the date of the judgment. See Id . (citing United States v. Thayer-West Point Hotel Co ., 329 U.S. 585, 588 (1947); Miller v. United States , 223 Ct. Cl. 352, 360 (1980). We date the taking as having occurred on January 1 st , 1989, as the first day of the production for their solution mining plan, for the calculation of pre-judgment interest. The Iron Mountain Mines, Inc. and T.W. Arman also uses this date because it marks the beginning of the physical intrusion from which all damages in this matter arise. Interest computation will be based upon the Contracts Disputes Act, 41 U.S.C. §§ 601-13 (1982). See Jones v. United States , 3 Cl. Ct. 4, 7 (1983). The Iron Mountain Mines, Inc. and T.W. Arman further seeks awards of attorney fees and costs incurred as a result of litigation to Iron Mountain Mines, Inc. and T.W. Arman under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. 42 U.S.C. § 4601 et seq. (1995 & 2002 Supp.).
T.W. Arman and Iron Mountain Mines, Inc. also seek compensation for stigmatic injuries, for malicious prosecution with malice, fraud, oppression, deceit, despotism and tyranny. T.W. Arman and Iron Mountain Mines, Inc. have been unfairly blamed for the endangerment and possible extinction of salmon and trout in the Sacramento River, a crime of infamy if ever there was one, not withstanding that there is no evidence that any fish have been killed in the affected reaches of the Sacramento River since at least 1969, seven years before T.W. Arman and Iron Mountain Mines, Inc. purchased the property, or that T.W. Arman and Iron Mountain Mines, Inc. did not actively mine the massive sulfide ores found to be the source of the minerals passively migrating from the property and alleged to pose an “imminent and substantial endangerment” to the environment, and in disregard and concealment and non-disclosure of contributory factors, particularly the United States contributory negligence in the construction of dams that destroyed the habitat of the salmon and trout necessary for their reproduction, and without consideration of other factors affecting the fishes demise, such as urban run-off, untreated sewage, ranching, farming, global warming, and other forms of habitat destruction, such as other mining operations in the watershed of the Sacramento River.
When the EPA first conducted its remedial investigation of Iron Mountain Mines, it considered “Among the remedial action alternatives that could be implemented by the EPA, the total removal of the source and sediments in the receiving waters (Alternative CA-10) is considered the only remedy for the Iron Mountain Mine site which is capable of meeting project cleanup objectives and the full requirements of the Clean Water Act (CWA). This alternative would effectively eliminate discharges from Iron Mountain and restore all tributaries to pristine condition. This alternative was based on total removal of all the source of contamination and haloing and disposing of them in a RCRA-approved facility.”
Without digressing to consider the ludicrous notion of disposing of millions of tons of valuable ore and mining by-products in a landfill, it will suffice to recognize that having recognized that there was a viable alternative that was fully protective of human health and the environment, the EPA elected to proceed with a remedial action (removal) that was less than fully protective of human health and the environment, and then and thereafter disregarded its duty and responsibility.
For these reasons T.W. Arman and Iron Mountain Mines, et al dispute the United States lawful authority to conduct these CERCLA remedial actions (removal) and demand the return and restoration of rights, privileges, and immunities of patent title to the possession and enjoyment of Iron Mountain Mines, Inc. property.
Because the United States has no lawful jurisdiction for its actions, and the only remedy found to be fully protective of human health and the environment is to finish the mining begun 150 years ago, which is what T.W. Arman and Iron Mountain Mines, Inc. were doing before the EPA interfered, the EPA should be found liable for the taking of private property for the public benefit requiring just compensation, and should be found liable for contributory negligence in the unlawful disposal of nonhazardous wastes.
CONCLUSION
Iron Mountain Mines, Inc. and T.W. Arman allege that the EPA's remedial (removal) action constituted a taking of the Iron Mountain Mines, Inc. and T.W. Arman's property warranting just compensation to Iron Mountain Mines, Inc. and T.W. Arman under the Fifth Amendment.
We therefore seek an award to Iron Mountain Mines, Inc. and T.W. Arman of $7,074,500,000 (billion) in just compensation, nonupled damages, plus interest, attorney's and expert fees, and costs.
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 PMThe 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
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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:
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.
- 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?
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, 2010The 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
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
1. To invest with power, especially legal power or official authority. Stakeholder Meetings/CEQA
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.
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 contactSynopsis 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.
| 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."
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
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 (SPRING CREEK DEBRIS DAMS, SLICKROCK CREEK DEBRIS DAM, CEMENTACION, &C.)
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
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
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.
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
- Direct Final Process for Deletions
- "Closeout Procedures for National Priorities List Sites" (January 2000) OSWER Directive 9320.2-09A-P, EPA 540-R-98-016
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) 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?
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.
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 WriterOMAHA, 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
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.
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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"RULE OF THE ROAD, STAY OUT OF DITCH"
The Writ of Quominus , or Writ of Quo Minus , was a writ and legal fiction which allowed the Court of Exchequer to obtain a jurisdiction over cases normally brought in the Court of Common Pleas . The Exchequer was tasked with collecting the King's revenue, and the legal fiction worked by having the plaintiff in a debt case claim that he was a debtor to the king, and that the defendant's debt prevented him paying the King. As such, the defendant would be arrested, and the case heard by the Exchequer. The writ's predecessors were in use from at least 1230, and it was in common (albeit strict) use during the 16th century. The use continued into the 19th century, until all original writs were abolished in 1883.
Writ
The Court of Exchequer 's main task was collecting royal revenues and taxes, partially through ensuring that debts to The Crown were paid. [ 1 ] It soon developed the ability to hear "common" cases, usually heard by the Court of Common Pleas , and did so through the writ of quominus . The origins of the writ are unknown, although some academics link it to a process through which a claimant could bring a claim jointly with the King or in part payment towards his debt to the King, in cases where the King had an interest. [ 2 ] The earliest record of a similar writ is 1230, although not with the quo minus wording. [ 3 ] The use was similar to that of the Bill of Middlesex , a similar legal fiction used by the Court of King's Bench ; where a plaintiff claims money from a defendant for payment of a debt, the plaintiff would claim to be a debtor to the King, unable to pay his money to the King because of the defendant's debt. [ 4 ]
If this legal fiction was successful, the defendant would be arrested and brought before the Court of Exchequer, where the case would be heard. [ 5 ] By the 16th century, the writ was commonly used in the Court of Exchequer, although fairly strictly; when taking a case the Court would investigate whether there was any benefit to the King in hearing it, and if not would refer the case to another court. [ 6 ] There was little interruption by the Court of Common Pleas, mainly due to their ongoing struggle with the Court of King's Bench over the Bill of Middlesex, which occupied most of their time. [ 7 ] Wurzel suggests that the introduction and widespread use of this writ was not due to any arrogance on the part of the Exchequer, but rather because they felt that as "the most ancient" court they should have superior jurisdiction. [ 8 ] The writ continued into the 19th century, [ 9 ] although it was abolished with the rest of the original writs through the Civil Procedure Rules of the Supreme Court of Judicature in 1883. [ 10 ]
Eighth Circuit reverses CAFA remand and holds that doubts about the application of CAFA jurisdictional exceptions should be resolved in favor of federal jurisdiction
Duke Energy Wins Verdict Reversal in EPA Lawsuit
“The Clean Air Act does not authorize the imposition of sanctions for conduct that complies with a state implementation plan that the EPA has approved,” U.S. Circuit Judge Richard Posner wrote in a 12-page decision. “The blunder was unfortunate but the agency must live with it.”
The appeals court also said that U.S. District Judge Larry J. McKinney , who presided over the trial in Indianapolis, improperly admitted expert testimony proffered by the EPA.
Duke said the work at the plants constituted routine maintenance and federal regulations weren't violated.
New project to connect state and federal water systems
2 billion tons building stone to dam the Golden Gate
The rule of law also encompasses the idea that the law should consist of general principles and not make special exceptions of particular groups, individuals or residents of particular regions etc.
1 Energy: Many Superfund cleanups involve energy intensive technologies. Green remediation strategies focus on opportunities to improve energy efficiency and use renewable energy sources.
2 Air and atmosphere: Many Superfund cleanups involve onsite and offsite emissions that may be reduced by applying the most appropriate advanced technologies and sound field practices.
3 Water: Superfund cleanups may also involve consumption of water. Green remediation strategies focus on reducing water consumption, and reusing treated water.
4 Land and ecosystems: Superfund sites often involve degraded onsite and offsite ecosystems and may have conditions that make the site unsafe for human or other use. Green remediation strategies focus on remedial actions that minimize further harm to the area, protect land resources and ecosystems at or near the site, and foster the return of sites to ecological, economic, social, or other uses.
5 Materials and waste: Site remediation may use significant amounts of raw materials and sometimes generates its own hazardous and non-hazardous wastes, including materials and debris that often are shipped offsite. Green remediation strategies offer opportunities to reduce materials consumption and waste generation, use recycled and local materials and spent products, and purchase environmentally preferred products.Funding (grants, loans, bonds, etc.)
Information current as of July 2009; please refer to www.dsireusa.org and the federal Web sites provided, or contact the points of contact identified above for more up to date information. Federal Incentives for Clean and Renewable Energy – Page 1
Department of Energy (DOE) Recovery and Reinvestment Funding Opportunities
www.energy.gov/recovery/funding.htm
The American Recovery and Reinvestment Act of 2009 (ARRA) designates $16.8 billion for the Office of Energy Efficiency and Renewable Energy (EERE) divided across several EERE programs, including funding opportunities for biomass, solar, and wind projects, and block grants, which provide funds to units of local and state government, Indian tribes, and territories to develop and implement projects to improve energy efficiency and reduce energy use and fossil fuel emissions in their communities.
Clean Renewable Energy Bonds (CREB)
www.irs.gov/pub/irs-drop/n-09-33.pdf
Provides 0% interest bonds to finance public sector renewable energy projects. ARRA authorizes the allocation of as much as $1.6 billion for CREBs.
USDA Rural Energy for America Program (REAP)
www.rurdev.usda.gov/rbs/busp/9006grant.htm
Provides agricultural producers and rural small businesses with funding for renewable energy systems. Grants are limited to 25% of a proposed project's cost, and a loan guarantee may not exceed $25 million.
U.S. Department of Treasury – Renewable Energy Grants
www.treas.gov/recovery
Authorized by ARRA, provides grants equal to 30% of the basis of the property for solar, fuel cells, small wind turbines, and other qualified facilities.
U.S. Department of Energy (DOE) – Loan Guarantee Program
www.lgprogram.energy.gov
Offers loan guarantees for energy efficiency, renewable energy and advanced transmission and distribution projects. ARRA extends the authority of the DOE to issue loan guarantees and appropriated $6 billion for the program.
Tax Incentives (abatements, deductions, credits, etc.)
Renewable Electricity Production Tax Credit (PTC)
www.irs.gov/pub/irs-pdf/f8835.pdf
Provides a per kilowatt hour (kWh) tax credit for electricity generated by qualified energy resources during the taxable year. ARRA revised the credit by: (1) extending the in-service deadline; and (2) allowing facilities that qualify for the PTC to opt instead to take the federal business energy investment tax credit (ITC) (see below) or an equivalent cash grant (see above) from the U.S. Department of Treasury. Preliminary guidance is at www.irs.gov/pub/irs-drop/n-09-52.pdf.Business Energy Investment Tax Credit (ITC)
Provides a tax credit for equipment placed in service before 2016, including 30% for solar, small wind turbine, and fuel cells. ARRA expanded the credit and repealed a previous limitation on the use of the credit for eligible projects also supported by "subsidized energy financing."
Qualifying Advanced Energy Project ITC
www.dsireusa.org/library/includes/incentive2.cfm?Incentive_Code=US02F&State=federal¤tpageid=1&ee=1&re=1
Provides an ITC to encourage the development of a U.S.-based renewable energy manufacturing sector. In any taxable year, the investment tax credit is equal to 30% of the qualified investment required for an advanced energy project. Any taxpayer receiving this credit may not also receive the Business Energy ITC.
Renewable Energy Production Incentive (REPI)
apps1.eere.energy.gov/repi/
Provides per kWh annual incentive payments of 1.5¢/kWh to new qualifying renewable energy facilities.
Technical Assistance and Other Incentives
Modified Accelerated Cost-Recovery System (MACRS)
www.dsireusa.org/documents/Incentives/US06Fa.htm
Allows businesses to recover investment in certain property through depreciation deductions. ARRA extended the terms of the program.Points of Contact
Internal Revenue Service, www.irs.gov
CREB and MARCS
IRS Public Information, (800) 829-1040
Renewable Electricity PTC, Federal Business Energy ITC
IRS Assistance for Businesses, (800) 829-4933
U.S. Department of Agriculture, Rural Business-Cooperative Service REAP, www.rurdev.usda.gov/rbs/, (202) 690-4730
U.S. Department of Treasury, www.ustreas.gov
Renewable Energy Grants, Qualifying Advanced Energy Project ITC
(202) 622-2000 or 1603Questions@do.treas.gov
U.S. Department of Energy, www.doe.gov, www.eere.energy.gov,
Recovery Funding,www.energy.gov/recovery/index.htm, (888) 363-7289
Loan Guarantees, Loan Guarantee Program Office, (202) 586-8336Funding (grants, loans, bonds, etc.)
U.S. Environmental Protection Agency (EPA) Brownfields Grants
www.epa.gov/swerosps/bf/pilot.htm
Assessment Grants www.epa.gov/brownfields/assessment_grants.htm
Provides funding for a grant recipient to inventory, characterize, assess, and conduct planning and community involvement related to brownfield sites. An eligible entity may apply for up to $200,000 to assess a site. Assessment proposals may be submitted by coalitions of eligible entities to pool their grant funds. Assessment coalitions may submit only one proposal up to $1,000,000. The performance period for these grants is three years.
Cleanup Grants
www.epa.gov/brownfields/cleanup_grants.htm
Provides funding to brownfield properties that have been determined to have an actual release or a substantial threat of release for a hazardous substance. An individual applicant can apply for up to $1,000,000. Coalitions of eligible entities may apply together under one applicant for up to $1,000,000 per eligible entity. Loans may also be used at sites with a release or substantial threat of release of a pollutant or contaminant that may present an imminent or substantial danger to public health or welfare.
Revolving Loan Fund Grants
www.epa.gov/brownfields/rlflst.htm
Provides funding to brownfield properties that have been determined to have an actual release or substantial threat of release of a hazardous substance. An individual applicant can apply for up to $1,000,000. Coalitions of eligible entities may apply together under one applicant forup to $1,000,000 per eligible entity.
Job Training Grants
www.epa.gov.brownfields/jobs.htm
Provides funding up to $200,000 over two years. Applicants must establish procedures to ensure that graduates will be employed in brownfields and/or environmental work that involve the assessment, cleanup, and/or redevelopment of contaminated sites with a focus on the graduates’ respective communities.
Training, Research, and Technical Assistance Grants
www.epa.gov/brownfields/trta.htm
Provides funding for eligible entities or nonprofit organizations to provide brownfields training, research, and technical assistance to individuals and organizations. The maximum amount of funding available per applicant is $1,500,000. Applicants may propose performance periods of up to five years, with the maximum annual funding not to exceed $300,000.
Tax Incentives (abatements, credits, deductions, etc.)
Brownfields Tax Incentive
www.epa.gov/brownfields/bftaxinc.htm
Allows environmental cleanup costs at eligible properties to be fully deductible in the year incurred, rather than capitalized and spread over a period of years. Hazardous substances or petroleum must be present or potentially present on the property. The taxpayer must incur the eligible expenses for use in a trade or business or for the production of income; or the property must be properly included in the taxpayer’s inventory. The taxpayer must obtain a statement from a designated state agency verifying a property’s eligibility (see www.epa.gov/brownfields/stxcntct.htm for a list of contacts). The Brownfields Tax Incentive has been extended through December 31, 2009.Technical Assistance
The Revitalization Handbook Addresses environmental cleanup liability risks associated with the revitalization of contaminated property or sites. Limitations on Liability There are different types of contaminated property in the United States. Prospective purchasers, developers, and lenders may hesitate to get involved with properties that have real or perceived contamination because they fear that they might be held liable under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or the Resource Conservation and Recovery Act (RCRA). The vast majority of contaminated properties, however, will not require EPA’s attention under CERCLA, RCRA, or any other federal law. More often, the state will oversee any needed cleanup under the state laws, many of which provide liability relief to prospective purchasers. Additional state-specific liability relief information is provided in the State-specific Incentive Sheets. Additional private mechanisms such as insurance and indemnity provisions can further clarify and account for potential liability issues. Brownfields Amendments www.epa.gov/brownfields/sblrbra.htm In January 2002, CERCLA was amended through enactment of Public Law 107-118, ("Brownfields Amendments"). Among other things, the Brownfields Amendments address certain liability concerns to encourage redevelopment. The Brownfields Amendments provide new liability protection for certain parties: innocent landowner, contiguous property owner, or bona fide prospective purchaser (BFPP). To be eligible, parties must: conduct All Appropriate Inquiries in compliance with 40 CFR Part 312, prior to acquiring the property; comply with all Continuing Obligations after acquiring the property; and not be affiliated with any liable party.
United States
Quick FactsNumber of EPA CERCLIS Sites: 12,617
Sites identified for potential investigation under the federal Superfund Program
Number of EPA Brownfields Properties: 17,759
Properties being funded or addressed under the EPA Brownfields Program
There may be some overlap among the categories listed and sites listed may not represent all potentially contaminated sites in the United States.
Points of Contact
Office of Brownfields and Land Revitalization www.epa.gov/brownfields EPA Brownfields Grants www.epa.gov/swerosps/bf/pilot.htm, (202) 566-2777 Brownfields Limitations on Liability, The Revitalization Handbook www.epa.gov/brownfields/liab.htm, (202) 566-2777 Brownfields Tax Incentive Sven-Erik Kaiser, kaiser.sven-erik@epa.gov, (202) 566-2753
Obama Faltering on Pledge to Restore the Role of Science
One year after the White House was supposed to chart a new course for the role of scientists and the integrity of scientific information in government, federal employees and the public continue to await reform.
On March 9, 2009, President Obama issued a memo instructing the White House Office of Science and Technology Policy to develop within 120 days recommendations for ensuring scientific integrity in the federal government. Obama's memo identified six principles OSTP was to follow in crafting the recommendations.
For a time, things appeared to be progressing swimmingly. OSTP invited public comment on the development of the recommendations, and even allowed people to comment on specific principles via the office's blog.
But then the 120-day mark, July 9, 2009, passed without an announcement. The months continued to pass by and still, no recommendations on scientific integrity, let alone a plan for implementing those recommendations.
Now, on the one-year anniversary of the due date, criticism of the White House is increasing. The group Public Employees for Environmental Responsibility says the scientific integrity recommendations are still very much needed and points to the Obama administration's handling of the BP oil disaster as evidence:
The muddled federal response to the massive BP oil spill in the Gulf of Mexico illustrates a lack of scientific transparency and candor in agency decision-making. Key examples include –
- Without any scientific undergirding, EPA approved widespread application of oil dispersants deep underwater, despite the fact that these chemicals were designed for surface application. […]
- The National Oceanic & Atmospheric Administration has flip-flopped on release of scientific observations about the size and nature of swelling underwater oil plumes;
Even amid such criticism, the White House remains silent. The White House's failure to, at the very least, provide the public with a status update on the scientific integrity principles is unacceptable – particularly when the issue involves restoring and maintaining integrity in government decisionmaking.
Update : Dan Froomkin at the Huffington Post points out that OSTP Director John Holdren discussed the scientific integrity recommendations on OSTP's blog June 18. Holdren wrote, “I am pleased to report here that the process, though slower than many (including myself) had hoped, has resulted in what I believe is a high-quality product that I anticipate finalizing and forwarding to the President in the next few weeks.”
AIG Asked Federal Judge To Deny Class-Action Status To Lawsuit Brought Against It By Other Insurance Companies
AIG asked a federal judge to deny class-action status to a lawsuit brought against it by other insurance companies, according to a Wall Street Journal report.
In documents that were filed in a federal district court in Illinois, lawyers for AIG accursed two insurers that are plaintiffs in the case of acting "at the behest" of Liberty Mutual Insurance.
AIG $2 Billion Treasury Backstop Shows Rating Firms' Influence
October 14, 2010,
Oct. 15 (Bloomberg) -- American International Group Inc.'s plan to exit U.S. ownership includes a new $2 billion backstop from the Treasury Department after credit raters said the company may need emergency capital as it regains independence.
The funds will be available when the government converts its preferred stake into common stock and can be drawn through March 2012 or until AIG sells at least $2 billion in shares, the New York-based insurer said in a Sept. 30 filing. AIG must maintain investment-grade ratings to execute its plan, which hinges on selling bonds and stock to private investors as the government withdraws support.
The 2008 bailout of AIG has been revised four times, swelling to $182.3 billion, in part to prevent rating downgrades that would trigger payments from AIG on mortgage-linked derivative contracts and hurt the firm's ability to attract insurance buyers. Moody's Investors Service, Fitch Ratings and Standard & Poor's have been criticized by lawmakers for giving top grades to housing-linked bonds before that market collapsed.
“By doing things like demanding more capital, rating firms have become the de facto regulator of AIG,” said Jonathan Hatcher, a Jefferies Group Inc. analyst in New York and a former Federal Deposit Insurance Corp. bank examiner. “This is very much a negotiation between AIG, the government and the rating agencies, and no one in that room wants egg on their face.”
The facility was created to address rating firms' concerns that AIG could be pressed for cash after the U.S. withdrawal begins in the first quarter, said two people with knowledge of the plan. AIG will owe a 5 percent dividend to Treasury on the funds, which are carved out of an existing bailout line. AIG paid 10 percent on Treasury's initial preferred stake and was then permitted to skip dividends as the bailout was revised.
‘Something Adverse'
“What do you do if something adverse were to happen in between the time the government winds down its support and the company fully completes its restructuring plan?” said Julie Burke, managing director at Fitch. Treasury's commitment “is a step to provide liquidity coverage during this interim period.”
AIG, once the world's largest insurer, protects property owners against natural disasters including hurricanes and earthquakes. Mark Herr, an AIG spokesman, and Mark Paustenbach, a Treasury spokesman, declined to comment.
The four main insurance rating firms, which include A.M. Best Co., affirmed their grades of AIG after the announcement last month of the company's restructuring plan. Standard & Poor's rates AIG's debt at A-, which is five levels higher than it would be without federal support.
‘Such Deference'
Moody's said that while the plan was a sign of progress, it raised the risk that the U.S. exits before AIG is ready. The firm “could become vulnerable if it does not fully revitalize its core operations and substantially exit non-core businesses before parting ways with the government,” Bruce Ballentine of Moody's said in an Oct. 4 note.
“Concerns about rating downgrades drove government policy in regard to AIG,” Elizabeth Warren, then-chairman of the Congressional Oversight Panel, wrote in June. “That this small group of private firms was able to command such deference from the federal government raises questions about their role within the marketplace and how effectively and accountably they have wielded their power.”
Rating firms provide judgments on how a debt issuer's actions may impact their credit grades, said Burke of Fitch and Ballentine of Moody's. Fitch “gives our opinions and highlights any positives or shortcomings but we don't set terms, all we do is provide our opinion,” Burke said.
Ballentine said that Moody's analysts “are observers, and we make credit judgments on steps the company has taken.”
Life Insurance
The facility will be created when Treasury converts its $49.1 billion investment in AIG into common stock for sale to the public, the company said.
As part of the restructuring, AIG will retire its Federal Reserve credit line, using sale proceeds of two non-U.S. divisions, AIA Group Ltd. and American Life Insurance Co. AIG will use as much as $22 billion from an existing Treasury line to help cover separate Fed obligations.
To repay remaining commitments, AIG may use additional funds from the sale of AIA, Alico, and a pair of Japan insurers. MetLife Inc. has agreed to buy Alico for about $15.5 billion, Prudential Financial Inc. struck a deal to acquire the Japan units for $4.8 billion, and AIA is planning a public offering in Hong Kong.
If necessary, AIG will also repay the U.S. with proceeds from sales of its Taiwan unit, plane-leasing business and stakes in mortgage-linked bonds contained in separate bailout funds.
Bailed Out
The insurer was first rescued in September 2008 by the Fed after rating downgrades triggered collateral payments to trading partners. Its bailout included a $60 billion Fed credit line, a Treasury investment of as much as $69.8 billion and up to $52.5 billion to buy mortgage-linked assets owned or backed by AIG.
Rating firms may have downgraded AIG if the government hadn't restructured its bailout in November 2008 and again in March 2009 to improve AIG's liquidity, Treasury Chief Restructuring Officer Jim Millstein said in May. Concern about rating actions also constrained the government's ability to demand discounts from AIG's trading partners as they wound down derivatives, he said.
Downgrades below investment grade would have been a “death knell” to AIG's ability to sell policies, Millstein said.
--With assistance from James Sterngold in New York. Editors: Dan Kraut, Dan Reichl
To contact the reporter on this story: Hugh Son in New York at hson1@bloomberg.net
COMING TOGETHER FOR THE SAFE WATERSHED REFORM-ACT:
MILITARY JUSTICE - VETERANS BENEFITS - BOUNTY WARRANT FREEHOLD
“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 theSupport 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.
“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.
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 theremedial 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#ixzz11HJZkgsS28 USC 84 - Sec. 84. California
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. |
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.
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
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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)
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
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
- Grants & Programs Home
- Small Grants
- CPS Grants
- BP Oil Spill Grants
- SEJCA Agreements
- Showcase Communities
- Overview
- Recent Awards
- Brochures, Fact Sheets and Contacts
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.
Brochures, Fact Sheets, and Grantee Contacts
- EJ Collaborative Problem Solving Cooperative Agreement Program Brochure PDF (12 pp, 408K)
2003-4 awardees
- 2003-2004 Project Abstracts
- Fact Sheet - EJ Collaborative Problem-Solving Cooperative Agreement Program PDF (2 pp, 54K)
- Fact Sheet - Acuerdo Cooperativo para Solucionar Problemas de Justicia Ambiental de Manera Colaborativa PDF (2 pp, 55K)
State Environmental Justice Cooperative Agreements (SEJCA)
Grants & Programs Topics
- Grants & Programs Home
- Small Grants
- CPS Grants
- BP Oil Spill Grants
- SEJCA Agreements
- Showcase Communities
- Overview
- Fact Sheet
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:
- In-home assessments and baseline evaluations
- Asthma education and remediation through peer educators/counselors
- 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
- State Environmental Justice Cooperative Agreements Program PDF (1 pg, 41K)
- Estatal de Acuerdo Cooperativo de Justicia Ambiental (2 pp, 37K)
Environmental Justice Showcase Communities
Grants & Programs Topics
- Grants & Programs Home
- Small Grants
- CPS Grants
- BP Oil Spill Grants
- SEJCA Agreements
- Showcase Communities
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
- Grants & Programs Home
- Small Grants
- CPS Grants
- BP Oil Spill Grants
- SEJCA Agreements
- Showcase Communities
- Overview
- Fact Sheets
- Grant Descriptions
- Emerging Tools for Local Problem Solving
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.
Fact Sheets
- Environmental Justice Small Grants Program PDF (2 pp, 45K)
Grant Recipients
- 2008-9 Grand Recipients PDF (8 pp, 38K)
- 2007 Grant Recipients PDF (6 pp, 30K)
- 2005 Grant Recipients PDF (15 pp, 423K)
Emerging Tools for Local Problem Solving
- 3 rd Edition 2008 PDF (88 pp, 2MB)
- 2 nd Edition 2002 PDF (87 pp, 5.9MB)
- 1 st Edition 1994-1997 PDF (65 pp, 249K) A set of descriptions of 46 successful EJ grants funded under the EJ Small Grants Program
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
| 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)
| (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?
CONTACT:
Jalil Isa
isa.jalil@epa.gov202-564-3226
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.
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.
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, GeorgiaThis 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 Supply09-21-10 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 effectsManaging Your Special Appropriation Act Project
Guidance for special situations defined in EPA's annual Appropriations Act.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
- Instructions for States Reporting State Revolving Fund Data Required Under the Recovery Act, September 24, 2009
- Reporting Requirements for Recipients of Water Quality Management Planning Grants Funded Under the Recovery Act, September 23, 2009
- Tracking and Reporting Requirements of the Recovery Act for the State Revolving Fund Programs, July 1, 2009
- SRF Tracking and Reporting Webcast Training Series (PowerPoint)
General EPA Guidance on Section 1512 Recipient Reporting:
- EPA Instructions for Recipient Reporting
- Supplemental EPA Guidance on Measuring and Reporting Job Estimates
Federal Reporting:
- FederalReporting.gov
- Memorandum for the Heads of Executive Departments and Agencies from Peter R. Orszag, Director of the Office of Management and Budget, regarding Updated Guidance on ARRA Data Quality, Non-Reporting Recipients, and Reporting of Job Estimates
- EPA Key Highlights of the December 18, 2009, Guidance re Job Creation Estimates
- Memorandum for the Heads of Departments and Agencies from Peter R. Orszag, Director of the Office of Management and Budget, regarding Improving Recovery Act Recipient Reporting, September 11, 2009
- Recipient Reporting Data Model V3.0: Final Production Release for Quarter Ending September 30, 2009
- OMB Implementing Guidance: Memorandum for the Heads of Departments and Agencies from Peter R. Orszag, Director of the Office of Management and Budget, regarding Implementing Guidance for the Reports on Use of Funds Pursuant to the American Recovery and Reinvestment Act of 2009, June 22, 2009
- OMB Webinar Training Materials on Recipient 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
- Desk Top Resource
- Guide on How to Prepare an Indirect Cost Rate Proposal for a Non-Profit Organization (35 pp, 276 K, About PDF )
- Stay Exempt - How can you keep your 501(c)(3) exempt?
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.
- Guidance on Cost Review of Grants/Performance Partnership Grants Awarded under 40 CFR Part 35 Subpart A (5pp, 172kb, About PDF )
- Cost Review Template and Guidance for Project Officers Grants Under 40 CFR Part 35 Subpart A (5pp, 237kb, About PDF )
- Environmental Results under EPA Assistance Agreements [EPA Order 5700.7] (29 pp, 180 K, About PDF )
- EPA Policy on Assessing Capabilities of Non-Profit Applicants for Managing Assistance Awards [EPA Order 5700.8] (9 pp, 32 K, About PDF )
- Policy for Competition in Assistance Agreements: 5700.5A1 (37 pp, 152 K, About PDF )
- Assistance Administration Manual 5700 Part 2 Pre-Award Section 01 Subawards Under EPA Assistance Agreements [Subaward Policy] (7 pp, 41 K, About PDF )
- Appendix B (Distinctions between Subawards and Contracts) (6 pp, 34 K, About PDF )
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
EHP 111-3, 2003: The Earth's Open Wounds: Abandoned and Orphaned Mines
A mountain of problems. The Iron Mountain mine site in Shasta County, ... These funds will be used to remediate the closed Iron Mountain mine in Redding, ...
ehp.niehs.nih.gov/members/2003/111-3/focus.html - CachedRedding.com: Blogs: Dottie Smith's blog
This little cottage was built on the side of Iron Mountain as housing for an employee and his family of the Iron Mountain Mine . There were twenty-four more ...
blogs.redding.com/dsmith/archives/2009/04/ - CachedNatural 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 - SimilarIron 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
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
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.
Treasury Hid A.I.G. Loss, Report Says
October 26, 2010, 1:51 amThe 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.
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
1. Operative Clause.
N.Y. Fed Proposes Replacement For GSE
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 any other person or body politic, the person or corporation entitled to the use in fee-simple, fee-tail, for life, or years, or otherwise, shall from thenceforth stand and be seised or possessed of the land, &c. of and in the like estates as they have in the use, trust, or confidence ; and that the estate of the person so seised to uses shall be deemed to be in him or them that have the use in such quality, manner, form and condition, as they had before in the use." The statute thus executes the use, as the lawyers term it; that is, it conveys the possession to the use, and transfers the use into possession ; thereby making cestui que use complete owner of the lands and tenements as well at law as in equity. 2 Comm. c. 20.
It is a curious circumstance that, after having been disregarded for a period [of two centuries and a half, from the passing of this statute of uses, one of the previous acts above cited (1 Rich. 3. c. 1.) was relied upon in argument as applicable to the cestui que use of a term of years in the case of Goodtitle v. Jones, 7 T. R. 47; it was held not to apply to the circumstances of that case : but in Blake v. Foster, 8 T. R. 494, it was referred to by Lawrence, J. as still in force. But see Gilbert on Uses, p. 67. and Sugden's notes there, that the act 1 Rich. 8. c. 1. has now no operation whatever.
The statute having thus not abolished the conveyance to uses, but only annihilated the intervening estate of the feoffee, and turned the interest of cestui que use into a legal, instead of an equitable ownership ; the courts of common law began to take cognizance of uses, instead of sending the party to seek his relief in chancery. And, considering them now as merely a mode of conveyance, very many of the rules before established in equity were adopted, with improvements, by the judges of the common law. The same persons only were held capable of being seised to a use, the same considerations were necessary for raising it, and it could only be raised of the same hereditaments as formerly. But as the statute, the instant it was raised, converted it into an actual possession of the land, a great number of the incidents, that formerly attended it in its fiduciary state, were now at an end. The land could not escheat or be forfeited by the act or defect of the feoffee, nor be aliened to any purchaser discharged of the use, nor be liable to dower or curtesy on account of the seisin of such feoffee ; because the legal estate never rests in him for a moment, but is instantaneously transferred to cestui que use, as soon as the use is declared. And, as the use and the land were now convertible terms, they became liable to dower, curtesy, and escheat, in consequence of the seisin of ccstuique-use, who is now become the terre-tenant also; and they likewise were no longer devisable by will. 2 Comm. c. 20.
The various necessities of mankind induced also the judges very soon to depart from the rigour and simplicity of the rules of the common law, and to allow a more minute and complex construction upon conveyances to uses than upon others. Hence it was adjudged, that the use need not always be executed the instant the conveyance is made; but, if it cannot take effect at that time, the operation of the statute may wait till the use shall arise upon some future contingency, to happen within a reasonable period of time; and in the meanwhile the ancient use shall rcmai* in the original grantor: as, when lands are conveyed to the use of A. and B., after a marriage shall be had between them, or to the use of A. and his heirs, till B. shall pay a sum of money, and then to the use of B. and his heirs. 2 Roll. Abr. 791; Cro. Eliz. 439 ; Bro. Abr. tit. Feojfm. til. Uses, 30. Which doctrine, when devises by will were again introduced, and considered as equivalent in point of construction to declarations- of uses, was also adopted in favour of Executory Devises. See that title.
But herein these, which are called contingent or springing uses, differ from an executory devise; in that there must bo a perscn seised to such uses at the time when the contingency happens, else they can never be executed by the statute ; and therefore if the estate of the feoffee to such use be destroyed by alienation, or otherwise, before the contingency arises, the use is destroyed for ever; whereas by an executory devise the freehold itself is transferred to the future devisee. 1 Rep. 134, 138 ; Cro. Eliz. 439. And in both these cases a fee may be limited to take effect after a fee; because, though that was forbidden by the common law in favour of the lord's escheat, yet, when the legal estate was not extended beyond one fee simple, such subsequent uses (after a use ia fee) were before the statute permitted to be limited in equity: and then the statute executed the legal estate in the same manner as the use before subsisted. PolUxJ. 78; 10 Mod. 423.
It was also held, that a use, though executed, may change from one to another by circumstances ex post facto ; as, if A. makes a feoffment to the use of his intended wife and her eldest son for their lives, upon the marriage the wile takes tlie whole use in severalty: and upon the birth of a soft, the use is executed jointly in them both. Buc. Us. 351. Tins is sometimes called a secondary, sometimes a shifting use.
Whenever the use limited by the deed expires, or cannot vest, it returns back to him wh» raised it, after such expiration, or during such impossibility, and is styled a resulting use. As if a man makes a feoffment to the use of his intended wife for life, with the remainder to the use of her first-born son in tail: here, till he marries, the use results back to himself: after marriage, it is executed in the wife for life ; and, if she dies without issue, the whole results back to him in fee. Bac. Us. 350; 1 Rep, 120.
It was likewise held, that the uses originally declared may be revoked at any future time, and new uses be declared of the land, provided the grantor reserved to himself such a power at the creation of the estate; whereas the utmost that the common law would allow was a deed of defeasance coeval with the grant itself (and therefore esteemed a part of it) upon events specifically mentioned. And, in case of such a revocation, the old uses were held instantly to cease, and the new ones to become executed in their stead. Co. Litt. 237. And this was permitted, partly to indulge the convenience, and partly the caprice of mankind; who (as lord Bacon observes) have always affected to have the disposition of their property revocable in their own time, and irrevocable ever afterwards. Bac. Us. 316. See Power.
By this equitable train of decisions in the courts of law the power of the court of chancery over landed property was greatly curtailed and diminished. But one or two technical scruples, which the judges found it hard to get over, restored it with tenfold increase. They held, in the first place, that " no use could he limited on a use;" and that when a man bargains and sells his land for money, which raises a use by implication to the bargainee, the limitation of a farther use to another person is repugnant, and therefore void. Dy. 155. ; I And. 37, 136. And therefore, on a feoffment to A. and his heirs, to the use of B. and his heirs, in trust for C. and his heirs, they held that the statute executed only the first use, and that the second was a mere nullity; not adverting, that the instant the first use was executed in B., he became seised to the use of C. ; which second use the statute might as well be permitted to execute as it did the
first; and so the legal estate might be instantaneously transmitted down, through a hundred uses upon uses, till finally executed in the last cestui-que-use. [It is now the practice to introduce only the names of the trustee and cestui-que-trust; the estate being conveyed to A. and his heirs, to the use of A. and his heirs in trust for B. and his heirs. See post.']
Again, as the statute mentions only such persons as were seised to the use of others, this was held not to extend to terms of years, or other chattel interests, whereof the termor is not seized, but only possessed; and therefore, if a term of one thousand years be limited to A., to the use of (or in trust for) B. the statute does not execute this use, but leaves it at common law. Bac. Us. 335 ; Jenk. 244 ; Poph. 76; Dyer, 369.
And lastly, (by more modern resolutions,) where lands are given to one and his heirs, in trust to receive and pay over the profits to another, this use is not executed by the statute; for the land must remain in the trustee to enable him to perform the trust. 2 Comm. c. 20.
And if there be a conveyance in trust to pay over the profits, 15 Vet. 371 ; 4 Taunt. 772; or to convey, 1 Atk. 607; J Vea. 201 ; or to sell, 2 Atk. 578; or any act to be done, the legal estate must necessarily vest in the trustee. So it is if a trust to permit a feme covert to receive the profits for, or to pay the same to her separate use.
But although it is not necessary that an estate of freehold should vest in the trustees, the general rule is, that the legal estate shall vest in them so far only, as is proper to give effect to the intention of the settler or devisor. See 5 Taunt. 382 ; 9 East, 1.
See further, Sanders o» Uses r 231—263, where the cases on the subject of uses not executed by the statute are fully considered.
Of the two more ancient distinctions above mentioned, the courts of equity quickly availed themselves. In the first case it was evident that B. was never intended by the parties to have any beneficial interest; and in the second the cestui-que-use of the term was expressly driven into the court of chancery to seek his remedy : and therefore that court determined, that though these were not uses, which the statute could execute, yet still they were trusts in equity, which in conscience ought to be performed. To this the reason of mankind assented, and the doctrine of uses was revived, under the denomination of trusts: and thus by this strict construction of the courts of law a statute made upon great deliberation, and introduced in the most solemn manner, has had little other effect than to make a slight alteration in the formal words of a conveyance. Vaugh. 50; Atk. 591 ; 2 Comm. 336.
This last observation, however, does not seem quite warranted by the fact: as it is manifest that, in consequence of the statute, many modifications of real property have been introduced for the convenience of families, of which the common law was not susceptible : and, how little soever the retention of what was formerly known by the name of uses, under the substituted appellation of trusts, may have been warranted upon the true principles of judicial construction, it certainly has been attended in many respects with considerable practical convenience.
An important question formerly arose upon the effect of a limitation (to such uses as a party shall appoint, and, in default of and until appointment, to himself and his heirs) with respect to the claim of dower against the appointee under the power: the great weight of professional and judicial opinion was in favour of the validity of the appointment, as opposed to the claim of dower : the discussion of this point by lord Eldon, (in Maundrell v. Maundrell, 10 Fes. 246.) precluded all reasonable litigation on the question, which was ultimately decided against the claim of dowress. See 5 B. fy A. 501 ; 5 Mad. 310.
The doubt formerly raised whether the power given to the above limitation, would, on being exercised, defeat the claim of dower, gave rise to another limitation, (usually called dower uses), which, by the intervention of a vested estate in a trustee, prevented dower from attaching. The law of dower has been recently materially altered. See Dower.
The courts of equity, in the exercise of their new jurisdiction over trusts, have wisely avoided, in a great degree, those mischiefs which made uses intolerable. The statute of frauds, 29 Car. 2. c. 3. having required that every declaration, assignment, or grant of any trust, in lands and hereditaments, (except such as arise from implication or construction of law,) shall be made in writing signed by the party, or by his written will; the courts now consider a trust-estate (either when expressly declared or resulting by such implication) as equivalent to the legal ownership, governed by the same rules of property, and liable to every charge in equity, which the other is subject to in law: and, by a long series of uniform determinations, for now near a century past, with some assistance from the legislature, they have raised a new system of rational jurisprudence, by which trusts are made to answer in general all the beneficial ends of uses without their inconvenience or frauds. The trustee is considered as merely the instrument of conveyance, and can in no shape affect the estate, unless by alienation for a valuable consideration to a purchaser without notice ; which, as cestui-que-use is generally in possession of the land, is a thing that can rarely happen. 2 Freem. 43. The trust will descend, may be aliened, is liable to debts, to executions on judgments, statutes, and recognizances, (by the express provision of the statute of frauds,) to forfeiture, to leases, and other incumbrances, nay, even to the curtesy of the husband, as if it was an estate at law. It was not until recently subjected to dower (see now that title), more from a cautious adherenee to some hasty precedents, than from any well-grounded principle. 1 Chanc. Rep. 254 ; 2 P. Wins. 640. It hath also been held not liable to escheat to the lord, in consequence of attainder or want of heirs ; because the trust could never be intended for his benefit. Hardrv. 494; Burgess and Wheat, 1 Black. 123. See Trusts.
The statute of uses has given efficacy to certain new and secret species of conveyances ; introduced in order to render transactions of this sort as private as possible, and to save the trouble of making livery of seisin, the only ancient conveyance of corporeal freeholds; the security and notoriety of which public investiture (Blackstone considers) abundantly overpaid the labour of going to the land, or of sending an attorney in one's stead: but which has yielded among other assurances to a species of conveyance called a covenant to stand seised to uses; by which a man, seised of lands, covenants, in consideration of blood or marriage, that he will stand seised of the same to the use of his child, wife, or kinsman ; for life, in tail, or in fee. Here the statute executes at once the estate; for the party intended to be benefited, having thus acquired the use, is thereby put at once into corporal possession of the land, without ever seeing it, by a kind of parliamentary magic. But this conveyance can only operate, when made upon such weighty and interesting considerations as those of blood or marriage. 2 Comm. c. 20. See Conveyance, Covenant to stand seised.
And the most usual mode of assurance is by lease and release, by which the necessity of giving possession by livery of seisin is also avoided through the instrumentality of the statute of uses. See Conveyance, Lease and Release.
Superstitious Uses. A devise of lands or goods to superstitious uses, is where it is to find or maintain a chaplain or priest to pray for the souls of the dead ; or a lamp in a chape], a stipendiary priest, &c. These, and such like, are declared to be superstitious uses ; and the lands and goods so devised are forfeited to the king by 1 Edw. 0. c. 14 ; see also 23 Hen. 8. c. 10, and tits. Charitable Uses, Mortmain.
A man devised lands to trustees and their heirs to find a priest to pray for his soul, so as the laws of the land would permit; and if the laws would not permit it, then to apply the
profits to the poor, with power to convert the profits to either of the said uses; adjudged this was not a devise to any superstitious use. 3 Nels. Abr. 259. Where certain profits arising out of lands are given to superstitious uses, the king shall have only so much of the yearly profits which were to be applied to the superstitious uses ; though when the land itself is given to the testator, declaring that the profits, without saying how much, shall be employed for such uses, in this case the king shall have the land itself. Moor, 129. If a sum certain is given to a priest, and other goods which depend upon the superstitious use, all is forfeited to the king ; yet if land, &c. is given to find an obit, or anniversary, and for another good use, and there is no certainty how much shall be employed to the superstitious use, the gift to the good use shall preserve the whole from forfeiture. 4 Rep. 104; 2 Roll. 205. Where a superstitious use is void, so that the king could not have it, it is not so far void as to result to the heir at law, and therefore the king may apply it to charity. I Salk. 163.
It seems now that, independent of the statutes, devises of this kind could not have effect: for either they would be void by the Mortmain statutes, or when not within the reach of any of them, would be deemed superstitious by the courts of equity; which would therefore direct the money to be applied to some use really charitable, at the court's discretion; or should the determined uses not be thought strong enough to warrant the exercise of a discretion so large, would consider the devisee as a trustee, for such as would be entitled if there were no devise. 1 Inst. 112, b. n. 2. See Charitable Uses, Mortmain.
USER DE ACTION. Is the pursuing or bringing an action in the proper county, &c. Broke, 64.
USHER, Fr. huissier, a door-keeper. An officer in the king's house, as of a privy chamber, &c.
There are also ushers of the Courts of Chancery and Exchequer.
USUCAPTION, usucaptio.~] The enjoying, by continuance of time, a long possession, or prescription. Termes de la Ley. Property acquired by use or possession.
USUFRUCT. Is a tenure introduced by the Scotch law from the civil law: it is the right of life-rent possession, without destroying or wasting the subject over which the tenure extends. The proprietor of the subject is termed the fiar; the property the fee; and the person possessed, the life-renter.
USUFRUCTUARY, usufructuarius.~] One that hath the use, and reaps the profit of a thing.
USURPATION, usurpation The using that which is another's; an interruption or disturbing a man in his right and possession, &c.
Usurpations in the civil and canon law are called intrusions ; and such intruders, having not any right, shall submit, or be excommunicated and deprived, &c by Boniface's Const. Gibs. Codex, 817.
For usurpations of advowsons, see Advowson, III.
As to usurpations of franchises, see Corporation, Quo Warranto.
WARNING. By the 2 Wm. 4. c. 39. § 4. a warning is to be subscribed to the writ of capias given by that act (see Process), stating that if the defendant, being in custody, shall be detained on the writ, or being arrested shall go to prison for want of bail, the plaintiff may declare against him before the end of the term next after such detainer or arrest, and proceed to judgment and execution.
WARRANT. A precept under hand and seal to some officer to take up any offender, to be dealt with according to due course of law. See Commitment, Constable, Justices of Peace.
WARRANT Of ATTORNEY. An authority and power given by a client to his attorney to appear and plead for him, or to suffer judgment to pass against him by confessing the action, by nil dictt, non sum informatus, S?c.
At common law, the warrant authorizing the attorney to act in a suit, might be filed even after judgment, for its not being filed in time was not assignable as error. 1 Wils. 3d. Many statutes and rules of court, however, required the warrant to be filed at certain specified times; and previous to the recent rule of court, the warrant of the attorney for the plaintiff must have been filed the same term he declared (4 & 5 Ann. c. 16. § 5.) and the warrant of the defendant's attorney must have been given to and filed by him at the same time with his own (72. M. 5 Ann. r. 2.) These statutes and rules are now virtually repealed by a rule of H. T.4Wm. 4. r. 4. which declares that no entry shall be made on record of any warrant of attorney to sue or defend.
Before the 5 Geo. 4. c. 41. the warrant must have been stamped, and a memorandum of it filed with the proper officer; but now, as the stamp duty is repealed by the above statute, the filing of the memorandum, which was required to protect the revenue, is unnecessary, and at all events is discontinued. See Arch. Pr. by Chitty, 4th ed. 39.
As to warrants of attorney to confess judgment, see Judgments acknowledged for Debts.
WARRANTIA CHARTS. A writ where a man was enfeoffed of lands with warranty, and then he was sued or impleaded in assize or other actions, in which he could not vouch or call to warranty. By this writ he might have compelled the feoffor or his heirs to warrant the land unto him ; and if the land were recovered from him, he should recover as much lands in value against the warrantor, &c. But the writ ought to have been brought by the feoffee depending the first writ against him, or he lost his advantage. F. N. B. 134; Terms de la Ley, 372, 588. See Pleadings, I. 1.
If a person enfeoffed another of lands by deed with warranty, and the feoffee made a feoffment over, and took back an estate in fee, the warranty was determined, and he should not have the writ warrantia chartce, because he was in of another estate. Also where one made a feoffment in fee with warranty against him and his heirs, the feoffee should not have a warrantia chartce upon this warranty against the feoffor or his heirs, if he were impleaded by them; but the nature of it was to rebut against the feoffor and his heirs Dalt. 48 ; 2 Lit. Abr. 684.
This writ might have been sued forth before a man was impleaded in any action, but the writ supposed that he was impleaded; and if the defendant appeared and said that he was not impleaded, by that plea he confessed the warranty, and the plaintiff should have judgment, &c.; and the party should recover in value of the lands against the vouchee, which he had at the time of the purchase of his tvarrantia charts; and therefore it might have been good policy to bring it against him before he was sued, to bind the lands he had at that time ; for if he had aliened his lands before the voucher, he should render nothing in value. New Nat. Br. 298, 299.
If a man recovered his warranty in tvarrantia charts, and after he was impleaded, he ought to have given notice to him against whom he recovered, of the action, and prayed him to show what plea he would plead to defend the land, &c. where one upon a warranty vouched and recovered in value, if he was then impleaded of the land recovered, he might not vouch again, for the warranty was once executed. 23 Edw. 3. 12.
In a warranty to the feoffee in land made by the feoffor, upon voucher, if special matter were shown by the vouchee, when he entered into the warranty, viz. that the land at the time of the feoffment was worth only 100/. and at the time of the voucher it was worth 200/. by the industry of the feoffee, the plaintiff in a tvarrantia chartce, Sf-c. should recover only the value as it was at the time of the sale. Jenk. Cent. 35.
If the vouchee could show cause why he should not warrant, that must have been tried, &c. See Recovery.
This writ has long been obsolete, and was abolished by the 3 & 4 Wm. 4. c. 27. § 36.
WARRANTIA D1EI. An ancient writ, where one having a day assigned personally to appear in court to any action, is in the mean time employed in the king's service, so that he cannot come at the day appointed: it was directed to the justices, to this end, that (hey neither take nor record him in default for that time. Reg. Orig. 18; F. N. B. 17. See Essoign, Protection.
WARRANTY,
Warrantia.] A promise or covenant by deed by the bargainor, for himself and his heirs, to warrant or secure the bargainee and his heirs against all men for the enjoying of the thing granted. Bract, lib. 2, 5 ; West. Symb. par. 1.
As applied to lands, it is defined to be a covenant real annexed to lands or tenements, whereby a man and his heirs are bound to warrant the same ; and, either upon voucher or by judgment in a writ of tvarrantia chartce, to yield other lands and tenements to the value of those that shall be evicted by a former title, or else may be used by way of rebutter. 1 Inst. 365 a. See Lift. § 697; and Mr. Butler's note there on the subject of warranty. See Deed, Recovery, Tenures, I. 7. &c.
WASTE,
Vastum.] Hath divers significations: first, it is a spoil made either in houses, woods, lands, &c. by the tenant for life or years, to the prejudice of the heir, or of him in the reversion or remainder. Kitchin, fol. 168. Whereupon the writ of waste might formerly be brought, for the recovery of the thing wasted, and treble damages. As to which, see at large post.
Waste of the forest is most properly where a man cuts down his own woods within the forest, without licence of the king, or lord chief justice in eyre. See Manwood, part 2. cap. 8. numb. 4 & 5. See tit. Forest.
Waste is also taken for those lands which are not in any man's occupation, but lie common; which seem to be so called because the lord cannot make such profit of them as of his other lands, by reason of that use which others have
of it in passing to and fro; upon this none may build, cut down trees, dig, &c. without the lord's licence.
Primd facie the presumption is, that a strip of land lying between the highway and the adjoining inclosure is, as well as the soil of the highway, ad filum vice, the property of the owner of the inclosure, whether he be a freeholder, copyholder, or leaseholder. 7 B. $ C. 304. But if such strip of land communicate with open commons, or other large portions of land, the presumption is either done away, or considerably narrowed : for the evidence of ownership, which applies to the large portions, applies also to the narrow strip which communicates with them. 7 Taunt. 39. See Common, Copyhold, Manor.
Year, day, and waste, annus, dies, et vastum, was a punishment or forfeiture formerly belonging to petit treason or felony; whereof see Slaundf. PI. Cor. lib. 3. c. 30; and tits. Day, Year, Waste.
But forfeiture is now restricted to attainders for high treason and murder, and does not extend to the disheriting of any heir, or to the prejudice of the title of any other person than that of the offender for his life. See Forfeiture, II. 2.
Waste, in its most usual acceptation, is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments ; to the disherison [disinheritance] of him that has the remainder or reversion in fee-simple or fee-tail. 1 Inst. 53.
I. What shall be considered as Waste ; generally, and in many particular specified Instances.
II. 1. Who may have a Remedy for Waste done.
2. Against whom such Remedy may be had, and ¦who are dispunishable for Waste.
III. Of the Punishment of Waste ; and the Proceedings at
Law against Persons guilty thereof.
IV. Of Injunctions, and other Proceedings in Equity, to
prevent, or relieve, against Waste.
I. Waste is either voluntary, or actual, which is a crime of commission, as by pulling down a house ; or it is permissive or negligent, which is a matter of omission only, as by suffering it to fall for want of necessary reparations. Generally speaking, whatever does a lasting damage to the freehold or inheritance is waste. Hetl. 35. Therefore removing wainscots, floors, or other things once fixed to the freehold of a house, comes under the general notion of waste. 4 Rep. 64. If a house be destroyed by tempest, lightning, or the like, which is the act of Providence, it is no waste : but otherwise, if the house be burnt by the carelessness or negligence of the lessee; though now by the 6 Ann. c. 31. no action will he against a tenant for an accident of this kind. See post.
Waste may also be committed in ponds, dove-houses, warrens, and the like; by so reducing the number of the creatures therein, that there will not be sufficient for the reversioner when he comes to the inheritance. Co. Litt. 53.
Timber also is part of the inheritance. 4 Rep. 62. Such are oak, ash, and elm, in all places; and in some particular countries, by local custom, where other trees are generally used for building, they are for that reason considered as timber; and to cut down such trees, or top them, or do any other act whereby the timber may decay, is waste. Co. Litt. 53. But underwood the tenant may cut down at any seasonable time that he pleases, and may take sufficient estovers of common right for house-bote and cart-bote; unless restrained (which is usual) by particular covenants or exceptions. 2 Roll. Abr. 817; Co. Litt. 41.
The conversion of land from one species to another, is waste. To convert wood, meadow, or pasture, into arable ; to turn arable, meadow, or pasture, into woodland ; or to turn arable or woodland into meadow or pasture; are all of them waste. Hob. 296. For, as Coke observes, it not only changes the course of husbandry, but the evidence of die estate; when such a close, which is conveyed and described as pasture, is found to be arable, and 2 converso. 1 Inst. 53. And the same rule is observed, for the same reason, with regard to converting one species of edifice into another, even though it is improved in its value. 1 Lev. 309. To open the land to search for mines of metal, coal, &c. is waste; for that is a detriment to the inheritance : but if the pits or mines were open before, it is no waste for the tenant to continue digging them for his own use; for it is now become the mere annual profit of the land. 5 Re]). 12 ; Hob. 295.
These three are the general heads of waste, viz. in houses, in timber, and in land. Though, whatever else tends to the destruction, or depreciating the value of the inheritance, is considered by the law as waste. 2 Comm. c. 18. Which we therefore proceed to state more at large.
It has been laid down as a general principle, that the law will not allow that to be waste, which is not in any way prejudicial to the inheritance. Hetl. 35. Thus in a recent case where in ejectment against a copyholder for a forfeiture by waste, the jury found there had been no damage, it was held there was no waste, and no forfeiture. 2 N. fy M. 534.
Nevertheless it has been held, that a lessee or tenant cannot change the nature of the thing demised; though, in some cases, the alteration may be for the greater profit of the lessor. Thus if a lessee converts a corn-mill into a fulling-mill, it is waste; although the conversion be for the lessor's advantage. Cro. Jac. 182. So the converting a brewhouse of 120Z. per annum into other houses let for 200Z. a year, is waste; because of the alteration of the nature of the thing, and of the evidence. 1 Lev. 309.
Waste In Lands. It hath been already stated, that if a tenant converts arable into wood, or e converso, it is waste ; for it not only changes the course of husbandry, but also the proof of evidence. Hob. 296. pi. 234. But if a lessee suffers arable land to lie fresh, and not manured, so that the land grows full of thorns, Sec. this is not waste, but ill husbandry. 2 Roll. Abr. 814. Likewise the conversion of meadow into arable is waste. 1 Inst. 53, b. But if meadow be sometimes arable, and sometimes meadow, and sometimes pasture, there the ploughing of it is not waste. 2 Roll. Abr. 815. Neither is the division of a great meadow into many parcels, by making of ditches, waste ; for the meadows may be better for it, and it is for the profit and ease of the occupiers of it. 2 Lev. 174. pi. 210.
Likewise converting a meadow into a hop-garden, is not waste ; for it is employed to a greater profit, and it may be meadow again ; per Windham and Rhodes, J. But Pertain said, though it be a greater profit, yet it is also with greater labour and charges. 2 Lev. 174. pi. 210. But converting a meadow into an orchard is waste, though it be to the greater profit of the occupier. Per Periam. Id. ibid. If a lessee ploughs the land stored with conies, this is no waste ; unless it be a warren by charter or prescription. 2 Roll. Abr. 815. So if a lessee of land destroys the coney burrows in the land, it not being a free warren by charter or prescription, it seems is not waste; for a man can have no property in them, but only a possession. Id. Ibid. ; On. 66.
It is waste to suffer a wall of the sea to be in decay, so as by the flowing and reflowing of the sea the meadow or marsh is surrounded, whereby the same becomes unprofitable. But if it be surrouuded suddenly by the rage and violence of the sea, occasioned by wind, tempest, or the like, without any default in the tenant, this is not waste. Yet if the tenant repair not the banks or walls against rivers or other waters, whereby the meadows or marshes be surrounded and become rushy and unprofitable, this is waste. 1 Inst. 53, b. So, a fortiori, if arable land be surrounded by such default; for the surrounding washes away the marie and other manurance from the land. 2 Roll. Abr. 816.
Waste in Trees and Woods. Trees are parcel of the inheritance ; and therefore, if a lessee assigneth his term, and excepts the timber-trees, it is void ; for he cannot except that
which doth not belong to him by law. 5 Rep. 12. The lessor, after he has made a lease for life or years, may by deed grant the trees, or reasonable estovers out of them, to another and his heirs ; and the same shall take effect after the death of the lessee. But such a gift to a stranger is void during the estate for life, because of the particular prejudice which might be done to the lessee. 11 Rep. 48. The lessee hath but a particular interest in the trees, but the general interest of the trees doth remain in the lessor ; for the lessee shall have the waste and fruit of the trees, and the shadow for his cattle, &c. But the interest of the body of trees is in the lessor, as parcel of his inheritance. Therefore, if trees are overthrown, by the lessee or any other, or by wind or tempest, or by any other means disjoined from the inheritance, the lessor shall have them in respect of his general ownership. 11 Rep. 81.
The lessor cannot give trees during the tenant's lease. But if he grants them to a stranger, and commands the tenant to cut and deliver them, who does it, this shall excuse him in an action of waste. And yet the tenant was not bound by law to obey and execute this command. Bro. Done, SfC. 13.
In 8 East, 190, the Court of K. B. held, that if trees be excepted out of a demise, waste cannot be committed by cutting them down ; and therefore that ejectment cannot be brought, as for waste committed in or upon the demised premises.
Where a man leases a wood which consists only of great trees, the lessee cannot cut them. Hobart's Rep. Cas. 296.
With respect to timber-trees, such as oak, ash, elm, (which are timber-trees in all places,) waste may be committed in them, either by cutting them down, or lopping of them, or doing any act whereby the timber may decay. Also in countries where timber is scarce, and beeches or the like are converted to building for the habitation of man, they also are accounted timber. 1 Inst. 53, a ; 54, b. Thus waste may be committed in cutting of beeches in Buckinghamshire, because there, by the custom of the country, it is the best timber. 2 Roll. Abr. 814.
So waste may be committed in cutting of birches in Berkshire, because they are the principal trees there for the most part. 2 Roll. Abr. 814.
If the tenant cut down timber-trees, or such as are accounted timber, as mentioned above, this is waste; and if he suffers the young germens to be destroyed, this is destruction. So it is if the tenant cuts down underwood (as he may by law), yet if he suffer the young germens to be destroyed, or if he stub up the same, this is destruction. 1 Inst. 53, a. If lessee, or his servants, suffer a wood to be open, by which beasts enter and eat the germens, though they grow again, yet it is waste; for after such eating they never will be great trees but shrubs. 2 Roll. Abr. 815. If a termor cuts down underwood of hazel, willows, maple, or oak, which is seasonable, it is not waste. If ashes are seasonable wood to cut from ten years, it is not waste to cut them down for house-bote. But if the ashes are gross of the age of nine years, and able for great timber, it is waste to cut them down. 2 Roll. Abr. 817.
If oaks are seasonable, and have been used to be cut always at the age of twenty years, it is not waste to cut them at such age, or under ; for in some countries, where there is a great plenty, oaks of such age are but seasonable wood. But, after the age of twenty-one years, oaks cannot be said to be wood seasonable, and therefore it shall be waste to cut them down. 2 Roll. Abr. 817. Cutting down of willows, beech, birch, asp, maple, or the like, standing in the defence and safeguard of the house, is destruction. If there be a quickset fence of white thorn, if the tenant stub it up, or suffer it to be destroyed, this is also destruction ; and for all these and the like destructions an action of waste lieth. 1 Inst. 53, a. The cutting of horn-beams, hazels, willows, sallows, though of forty years' growth, is no waste, because these trees would never be timber. Godb. 4. pi. 6.
The cutting down of trees is justifiable for house-bote, haybote, plough-bote, and fire-bote. 1 Inst. 53, b; Hob. Rep. c. 296 ; Bro. Waste, 130. By the common law, lessee shall have them, though the deed does not express it; but if he takes more than is necessary, he shall be punished in waste. Bro. Waste, pi. 30. The tenant may take sufficient wood to repair the walls, pales, fences, hedges, and ditches, as he found them ; but he cannot make new.
Cutting of dead wood is no waste. But converting trees into fuel, when there is sufficient dead wood, is waste. 1 List. 53, b. So cutting wood to bum, where the tenant has sufficient hedgewood, is waste. F. N. B. 59, (M).
Where lessee for years has power to take hedge-bote by assignment, yet he may take it without assignment; for the affirmative does not take away the power which the law gives him. Dyer, 19, pi. 115.
If lessor excepts his trees in his lease, the lessee shall not have fire-bote, hay-bote, &c. which he should have otherwise; and the property of the trees is in the lessor himself. 4 Lev. 162, pi. 269. Sir Richard Lewkner's case. Yet it has been said, that lessee for years, the trees being excepted, has liberty to take the shrouds and loppings for fire-bote ; but if he cuts any tree, it shall be waste, as well for the loppings as for the body of the tree. Noy, 29.
If a tenant that has fire-bote to his house in another man's land, cuts wood for that intent to make his bote-wood, and the owner of the land takes it away, an action of trover and conversion lies against him by the tenant of the land who hath such fire-bote. Clayt.40,pl.69. See Dyer, 36, pi. 38 ; Clayt. 47, pi. 81 ; 1 Lev. 171.
It is also a rule which appears to have been rigidly adhered to, that the trees shall be applied to the specific purpose for which they are allowed to be cut. Thus, if the lessee cuts trees for reparation, and sells them, and after buys them again, and employs them in reparation, yet it is waste by the sale. So, if lessee cuts trees, and sells them for money, though with the money he repairs the house, yet it is waste. 1 Inst. 53 b.
As to the cutting of timber-trees for repairs by lessee, there is no difference whether the lessor or lessee covenants to repair the houses ; for in either case it is not waste if lessee cuts them. Mo. 23, pi. 80. Anon.
But the lessee shall not cut trees to make a new house where there was not any at the time of the lease. Hob. 296. So if a lessee suffers a house to fall for default of covering, which is waste, he cannot cut trees to repair the house. Bro. Waste, pi. 39. And in general, if the tenant suffer the house to be wasted, he cannot justify the felling of timber to repair it. 1 Inst. 53, b. If a house be ruinous at the time of the lease, though the lessee is not bound to repair it, yet he may cut trees to repair it. 1 List. 54, b. The tenant may likewise dig for gravel or clay for the reparation of the house, though the soil was not open when the tenant came in; and it. is justifiable as well as cutting of trees. 1 Inst. 53, b. So, with regard to a stable, if it fall without default of the lessee, in time of the lessor, the lessee may take trees of the heir to make a new stable, if it be of necessity. Bro. Waste, pi. 67. But if the stable falls in default of the lessee in time of the lessor, he cannot, in time of the heir, cut trees to make a new stable. Bro. Waste, pi. 67.
It has been agreed, that tenant for years may cut wood ; but it has been doubted if tenant at will may ; but it seems that as long as tenant at will is not countermanded he may cut seasonable wood, &c. Bro. Waste, pi. 114.
If the lessee covenant that he will leave the wood at the end of the term as he found it; if the lessee cut down the trees, the lessor shall presently have an action of covenant; for it is not possible for him to leave the trees at the end of the term. So that the impossibility of performing the covenant shall give a present action on a future covenant. But it is otherwise in the case of a house; for there, though the lessee commit
VOL. II.
waste, yet he may repair the waste done before the term expires. 5 Rep. 21.
If, during the estate of a mere tenant for life, timber is severed either by accident or wrong, it belongs to the first person who has a vested estate of inheritance ; but where there are intermediate contingent estates of inheritance, and the timber is cut down by a combination between the tenant for life and the person who has the next vested estate of inheritance ; or if the tenant for life has himself such estate, and fells timber, in these cases the chancellor will order it to be preserved for him who has the first contingent estate of inheritance under the settlement. 3 Cox's P. Wms. 267 ; 3 Woodd. 400. See further, post, II. IV.
Waste In Digging for gravel, mines, &c.—If the tenant digs for gravel, lime, clay, brick, earth, or stone, hid in the ground, or for mines of metal or coal, or the like, not being open at the time of the lease, it is waste. 1 7ns/. 53, b. If a man hath land in which there is a mine of coals, or the like, and maketh a lease of the land (without mentioning any mines) for life or for years, the lessee, as to such mines as were open at the time of the lease made, may dig and take the profits thereof. But he cannot dig for any new mine that was not open at the time of the lease made, for that would be adjudged waste. Likewise, if there be open mines in the land, and the owner leases it to another, with the mines in it, he may dig in the open mines, but not in the close mines ; but otherwise it would be if there was not any open mine there; for then the lessee might dig for mines, otherwise the grant would take no effect. 1 Inst. 54, b. If lessee dig slate-stone out of the land, it is waste; so digging for stones, unless in a quarry, is waste, though the lessee fill it up again. 2 Roll. Abr. 816 ; Ow. 66. Likewise, if he have a lease of land, in which there was a coal mine, but not open at the time of the lease; if the lessee open it, and assigns his interest, it is still waste in the assignee; but where the lease is of lands, and all mines in it, there he may dig in it. 5 Rep. 12, a, b.
But if lessee of land, with mines of coals, iron, and stone, digs the coals, iron, and stones, so much as is necessary for him to use without selling, it is not waste. If a lessee digs earth, and carries it out of the land, action of waste lies. 2 Roll. Abr. 806. If a lessee digs for gravel or clay for reparation of the house, not being open at the time of the lease, it is not waste, any more than the cutting of trees for reparation. 1 Inst. 53, b.
If a man leases lands with general words of " all mines of coals," where there is not any mine of coals open at the time of the demise, and after the lessee opens a mine, he cannot justify the cutting of timber-trees for making puncheons, corses, rollscoops, and other utensils in and about the mine, though without them he could not dig and get the coals out of the mine; and this is like a new house built after the demise, for the reparation of which he cannot take timber upon the land; and it had been waste to open it, if it had not been granted by express words. And it was said by Hobart, that the law had been the same if the mine was open at the time of the demise. Hobart, 296; Hut. 19. See further, Mines.
Waste In Gardens, orchards, fish-ponds, dove-houses, parks, &c.—If the tenant cut down or destroy any fruit-trees growing in the garden or orchard, it is waste; but if such trees grow upon any of the ground which the tenant holdeth out of the garden or orchard, it is no waste. 1 Inst. 53, a. Breaking a hedge also is no waste. 1 Inst. 53 a. Destruction of saffron-heads in a garden is not waste. Bro. Waste, pi. 143. cites 10 Hen. 7. c. 2. But ploughing up strawberry beds by an outgoing tenant has been held to be waste. 1 Camp. 227.
If the tenant of a dove-house, warren, park, vivary, estangues, or such like, takes so many that so much store is not left as he found at the time of the demise, it is waste. 1 Inst. 53, a; Hob. Rep. c. 296. Likewise, if the lessee of a pigeon-house stops the holes, that the pigeons can5E
not build, it is waste. So suffering the pales of a park to decay, whereby the deer are dispersed, is waste. 1 Inst. 53, a. Also, if the lessee of a hop ground plough it up and sow grain there, it is waste. Ow. (>(>. Moyle v. Moyle. The breaking a weare, or the banks of a fishpond, is waste. Ow. CC.
Waste with respect to Houses. Waste may be done in houses, by pulling them down or prostrating them, or by suffering the same to be uncovered, whereby the spars or rafters, planchers or other timber of the house, are rotten. 1 Inst. 63, a. Default of coverture of an house is waste, though the timber be standing. 2 Roll. Abr. 815. But, if the house be uncovered when the tenant cometh in, it is no waste in the tenant to suffer the same to fall down. Though there be no timber growing upon the ground, yet the tenant, at his peril, must keep the houses from wasting. 1 Inst. 53, a.
If a lessee rases the house, and builds a new house, if it be not so long and wide as the other, it is waste. 2 Roll. Abr. 815. So if he rebuild it larger it is waste, for it will be more charge for the lessor to repair. 1 Inst. 53, a.
But, if a lessee of land makes a new house upon the land where there was not any before, this is not waste; for it is for the benefit of the lessor. 2 Roll. Abr. 815. Though, according to Coke, if the tenant build a new house, it is waste ; and if he suffer it to be wasted, it is a new waste. Yet, if the house be prostrated by enemies or the like, without default of the tenant, or was ruinous at his coming in, and fall down, the tenant may build the same again with such materials as remain, and with the other timber, which he may take growing on the ground, for his habitation; but he must not make the house larger than it was. 2 Roll. Abr. 815 ; 1 Inst. 53, a.
If the house be uncovered by tempest, the tenant must in convenient time repair it. 1 Inst. 53, a. If a lessee flings down a wall between a parlour and a chamber, by which he makes a parlour more large, it is waste; it cannot be intended for the benefit of the lessor, nor is it in the power of the lessee to transpose the house. 2 Roll. Abr. 815. So, if he pulls down a partition between chamber and chamber, it is waste. Bro. Waste, 143. Or if a lessee pulls down a hall or parlour, and makes a stable of it, it is waste. If a lessee pulls down a garret over head, and makes it all one and the same thing, it is waste. If a lessee permits a chamber fore in decasu pro defectu plaustrationis, per quod grossum mahercmium devenit putridum, el camera ilia turpissima et fcedissima devenit, action of waste lies for it. So, if a lessee permits the wall to be in decay for default of daubing, per quod maheremium devenit putridum, action of waste lies. 2 Roll. Abr. 815. Breaking of a pale or of a wall uncovered, is not waste. But breaking of a wall covered with thatch, and of a pale of timber covered, is waste. Bro. Waste, pi. 94.
If the tenant do, or suffer, waste to be done in his houses, yet if he repair them before any action brought, there lieth no action of waste against him ; but he cannot plead quod non facit vastum, but the special matter. 1 Inst. 53, a.
It may be of use here to add something on the progress of the law as to the accidental burning of houses, so far as regards landlord and tenant. At the common law, lessees were not answerable to landlords for accidental or negligent burning; for as to tires by accident, it is so expressed in Fleta, lib. 1. c. 12; and Lady Shrewsbury's case, 5 Rep. 13 b., is a direct authority to prove that tenants are equally excusable for fires by negligence. Then came the statute of Gloucester, (C E. 1.) which by making tenants for life and years liable to waste without any exception, consequently rendered them answerable for destruction by fire. Thus stood the law in Lord Coke's time. But now, by 6 Ann. c. 31. [the provisions of which are contained in the last building act, see tit. Fire,~] the ancient law is restored, and the distinction introduced by the statute of Gloucester, between tenants at will and other lessees, is taken away; for the statute exempts all persons from actions for accidental fire in any house, except in the case of special agreements between landlord and tenant. So much relates to
tenants coming in by act or agreement of parties.—As to tenants of particular estates coming in by act of law, as tenant by the curtesy, tenant in dower, and (before the statute taking away military tenures) guardian in chivalry ; these, or at least the two latter, being, at common law, punishable for waste, were therefore responsible for losses by fire ; unless, indeed, they were answerable for waste voluntarily only, and not for waste permissive; a distinction not found in the books. If these tenants in curtesy or dower were, at common law, responsible for accidental fire, it may, some time or other, become necessary to determine whether they are within the statute of Anne. The statute in expression is very general, and seems calculated to take away all actions in cases of accidental fire, as well from other persons as from landlords.
It was doubted on the statute of Anne, whether a covenant to repair generally extended to the case of fire, and so became an agreement within the statute. 1 Inst. 57, in n.
But where, since the statute, a lessee covenanted for himself and his assignees to repair the premises demised, the assignee of the lease was held bound to repair notwithstanding the premises had been destroyed by fire. 2 Chilly's Rep. 602.
And if a lessee covenants to pay rent, and to repair, with an express exception of casualties by fire, he may be obliged to pay rent during the whole term, though the premises are burned down by accident, and never rebuilt by the lessor. 1 T. R. 310. See ante, tits. Covenant, Lease, Rent.
Waste in things annexed to the Freehold. —The removing a post in a house is waste. 42 Edw. 3. 6. So the removing of a door. 1 Inst. 53. Or of a window. 42 Edw. 3. G. The digging up a furnace annexed to the frank-tenement, and selling it, is waste. Bro. Waste, pi. 143, The removing of a bench is waste, though annexed by the tenant himself. Bro. Waste, pi. 143 ; 1 Inst. 53 a. But these are such trifles that a landlord would now scarcely obtain a verdict in an action of waste, it being so very penal, unless very great injury was done by the act. As to the furnace he might maintain trover for the value. If wainscot, annexed to the house, be taken away, it is waste. 1 Inst. 53 a. Of tables dormant and fixed in the land, and not to the walls by the termor, and taken ofF within his term, waste does not lie ; for the house is not impaired by it. Bro. Waste, pi. 104.
Beating down a wooden wall, or suffering a brick wall to fall, is no waste, unless it be expressly alleged that the walls were coped or covered. If waste be assigned in pulling up a plank floor, and mangers of a stable, the plaintiff" must show that the same were fixed. Dyer, 108 6. pi. 31. If lessee erects a partition, he cannot break it down without being liable to an action of waste, for he has joined it to the frank-tenement. Mo. 178. Shelves are parcel of the house, and not to be taken away ; and though it is not shown that the shelves were fixed, it ought to be intended that they were fixed. 2 Bulst. 113. Pavement is a structure, for they use lime to finish. Id. ib. If the tenant suffers the grounsels to waste, in his default of defence or removing the water from off" them, or through dirt or dung, or other nuisance, which lies or hangs upon it, the tenant shall be charged, for he is bound to keep it in as good case as he took it. Oven, 43.
The law, upon this part of the subject, has been relaxed, for during the term the tenant may take away chimney-pieces or wainscot which he has put up ; but not after the term, for he would then be a trespasser. 1 Atk. 477. A fire-engine erected by tenant for life shall go to his executor. 3 Atk. 13. But the rule is different between the heir and executor, with regard to fixtures upon the inheritance, that descend to die heir. 1 //. Bin. 258. See further, Fixtures, Heir, III. S.
It may be observable in general, that waste which ensues from the act of God is excusable, or rather it is no waste. Thus if a house falls by tempest, the tenant shall be excused in action of waste; but if it be uncovered by tempest, and stands there, if the tenant has sufficient timber to repair it, and does not, the lessor, if the lease be made on condition of re-entry for waste, may re-enter, but not immediately upon the tempest, for it is no waste until the tenant suffers it to be so long unrepaired that the timber be rotted, and then it is •waste. Bro. Cond. pi. 40.
Likewise if a house be abated by lightning, or thrown down by a great wind, it is not waste. 1 Inst. 53 a. So if appletrees arc torn up by a great wind, if lessee afterwards cuts them, it is not waste. Bro. Waste, pi. 39. If the banks are •well repaired by the lessee, and the water notwithstanding subverts them, and surrounds his meadow, by which it is become rushy, it is not waste. 2 Rol. Abr. 280; contra, 20 Hen. 6. c. 1 6.
IT. 1. The persons who are injured by waste are such as have some interest in the estate wasted; for if a man be the absolute tenant in fee-simple, without any incumbrance or charge on the premises, he may commit whatever waste his own indiscretion may prompt him to, without being impeachable and accountable for it to any one. And though his heir is sure to be the sufferer, yet nemo est heeres viventis; no man is certain of succeeding him, as well on account of the uncertainty which shall die first, as also because he has it in his own power to constitute what heir he pleases, according to the civil law notion of an heeres natus and an heeres faclus ; or in the more accurate phraseology of our English law, he may alien or devise bis estate to whomever he thinks proper, and by such alienation or devise may disinherit his heir at law. Into whose hands soever therefore the estate wasted comes, after a tenant in fee-simple, though the waste is undoubtedly damnum, it is damnum absque injurid. 3 Comm. c. 14.
One species of interest, which is injured by waste, is that of a person who has a right of common in the place wasted, especially if it be common of estovers, or a right of cutting and carrying away wood for house-bote, plough-bote, &c. : here, if the owner of the wood demolishes the whole wood, and thereby destroys all possibility of taking estovers, this is an injury to the commoner, amounting to no less than a disseisin of his common of estovers, if he chooses so to consider it, for which he formerly had his remedy to recover possession and damages by assize if entitled to a free-hold in such common; but if he has only a chattel-interest, then he can only recover damages by an action on the case for this waste and destruction of the woods out of which his estovers were to issue. F. N. B. 59 ; 9 Rep. 112.
But the most usual and important interest that is hurt by this commission of waste, is that of him who hath the remainder or reversion of the inheritance after a particular estate for life or years in being. Here, if the particular tenant (be it the tenant in dower or by curtesy, who was answerable for waste at the common law, 2 Inst. 299 ; or the lessee for life or years, who was first made liable by the statutes of Marlebridge, 52 Hen. 3. c. 23, and of Gloucester, 6 Edrv. 1. c. 5.) if such particular tenant commits or suffers any waste, it is a manifest injury to him that has the inheritance, as it tends to mangle and dismember it of its most desirable incidents and ornaments, among which timber and houses may justly be reckoned the principal. To him therefore in remainder or reversion, to whom the inheritance appertains in expectancy, the law hath given an adequate remedy. Co. Litt. 63. For he who hath the remainder for life only is not entitled to sue for waste, since his interest may never perhaps come into possession, and then he hath suffered no injury.
Yet a parson, vicar, archdeacon, prebendary, and the like, who are seised in right of their churches of any remainder or reversion, might have had an action of waste; for they, in many cases, have for the benefit of the church and of the successor, a fee-simple qualified: but as they are not seised in their own right, the writ of waste did not lay ad exhtEredationem ipsius, as for other tenants in fee-simple; but ad exheeredationem ecclesice, in whose right the fee-simple is holden. 1 Inst. 341; 3 Comm. c. 14.
The writ of waste is now abolished, but the persons by whom it might have been maintained may still have a remedy at law by an action on the case in the nature of a writ of waste, which has long been the ordinary course of proceeding (see post, III.) The instances given in former editions of this work, of cases in which the writ of waste might be supported, are in a great measure retained, as although no longer applicable to that action, they contain and illustrate the general doctrine upon the subject of waste.
By 13 Edrv. 1. c. 22. the action of waste was given to one tenant in common against another. Where there are tenants in common for life, the one should not have trespass of trees cut against the other, but should have waste pro indiviso, though they were only tenants for term of life, &c. Bro. Waste, pi. 79. If one coparcener, before partition, made feoffment to another, and one of them did waste in the trees, waste lay. 11 Rep. 19 a, Lifford's case. See post, III.
By 20 Edm. 1. st. 2. an action of waste was maintainable by the heir for waste done in the time of his ancestor, as well as for waste done in his own time.
This action must have been brought by him that had the immediate estate and inheritance in fee-simple or fee-tail, but sometimes another might join with him. 1 Inst. 53 a, 285 a. It is said that the reversion must have continued in the same state that it was at the time of the waste done, and not been granted over ; for though the reversion took the estate back again, the action was gone, because the estate did not continue. But in some special cases an action of waste lay, though the lessor had nothing in the reversion at the time of the waste done; as if a bishop made a lease for life or years, and died, and the lessee, the see being void, did waste, the successor should have an action of waste: this was allowed, though the 20 Edrv. 1. spoke only of those that were inheritors. 1 Inst. 53 b, 350 a; 2 Rol. Abr. 825.
If a tenant did waste, and he in reversion died, the heir should not have an action of waste, for waste done in the life of the ancestor ; for he could not say that the waste was done to hi3 disinherison, &c. 1 Inst. 341 a, 53 b, 356 a. If a lease was made to A. for life, the remainder to B. for life, remainder to C. in fee, no action of waste lay against the first lessee during the estate in the mean remainder, for then his estate would have been destroyed. Otherwise if B. had had a mean remainder for years, for that would have been no impediment, the recovery not destroying the term of years. 5 Rep. 76, 77 ; 1 Inst. 54 a.
No person was entitled to an action of waste against a tenant for life but he who had the immediate estate of inheritance in remainder or reversion expectant upon the estate for life. If, therefore, between the estate of the tenant for life, who committed waste, and the subsequent estate of inheritance, there was interposed an estate of freehold to any person in esse, then during the continuance of such interposed estate the action of waste was suspended ; and if the first tenant for life died during the continuance of such interposed estate, the action was gone for ever. But though while there was an estate for life interposed between the estate of the person committing waste, and that of the reversioner or remainder-man in fee, the remainder-man could not bring his action of waste ; yet if the waste were done by cutting down trees, Sec. such remainder-man in fee might and may still seize them; and if they are taken away or made use of before he seizes them, he may bring an action of trover. For in the eye of the law a remainder-man for life has not the property of the thing wasted: and even a tenant for life in possession has not the absolute property of it, but merely a right to the enjoyment or benefit of it, as long as it is annexed to the inheritance of which it is considered a part, and therefore belongs to the owner of the fee. 1 Inst. 218 b, in note, refers to 1 Inst. 53 ; 5 Rep. 77, Paget's case, All. 81; 3 P. Wms. 267 ; 22 Fin. Abr. 523 ; 2 Eq. Abr. 727 ; 3 Atk. 757.
If lessee for years committed waste, and the years expired, yet the lessor should have an action of waste for treble damages, though he could not recover the place wasted; but if the lessor accepted of a surrender of a lease after the waste done, he should not have his action of waste. It is said, that if a tenant repaired before action brought, he in reversion could not have had an action of waste ; but he could not plead that he did no waste, therefore he must have pleaded the special matter. 1 Inst. 283 a, 285 a, 306 ; 5 Rep. 119; 2 Cro. 658.
By the 11 Hen. 6. c. 5. where tenants for life, or for another's life, or for years, granted over their estates, and took their profits to their own use, and committed waste, they in reversion might have had an action of waste against them. 2 Inst. 302. He in the remainder, as well as the reversioner, might have brought this action; and every assignee of the first lessee, mediate or immediate, was within this act. 5 Rep. 77 ; 2 Inst. 302.
2. By the feodal law, feuds being originally granted for life only, the rule was general for all vassals and feudatories; " si vassallus feudum dissipaverit, aut insigni detrimento detenus fecerit, privabitur." Wright. 44. See Tenures. But in our ancient common law the rule was by no means so large, for not only he that was seised of an estate of inheritance might do as he pleased with it, but also waste was not punishable in any tenant, save only in three persons,— guardian in chivalry, tenant in dower, and tenant by the curtesy; and not in tenant for life or years. And it was even a doubt whether waste was punishable at the common law in tenant by the curtesy. Rcgist. 72; Bro. Abr. tit. Waste; 2 Inst. 301. The reason of this diversity was, that the estate of the three former was created by the act of the law itself, which therefore gave a remedy against them ; but tenant for life, or for years, came in by the demise and lease of the owner of the fee, and therefore he might have provided against the committing of waste by his lessee; and if he did not, it was his own default. 2 Inst. 299. But in favour of the owners of the inheritance the statutes of Marlebridge, 52 Hen. 3. c. 23. and of Gloucester, 6 Edw. 1. c. 5. provided that the writ of waste should not only lie against tenants by the law of England, (or curtesy,) and those in dower, but against any farmer or other that held in any manner, for life or years. So that for above five hundred years past all tenants merely for life, or for any less estate, have been punishable or liable to be impeached for waste, both voluntary and permissive, unless their leases be made, as sometimes they are, without impeachment of waste, absque impeditione vasti; that is, with a provision or protection that no man shall impctcre or sue him for waste committed. But tenant in tail, after possibility of issue extinct, is not impeachable for waste, because his estate was at its creation an estate of inheritance, and so not within the statutes. Co. Litt. 27 ; 2 Roll. Abr. 826, 828. Neither did an action of waste lie for the debtor against tenant by statute, recognizance, or elegit; because against them the debtor may set off the damages in account. Co. Litt. 54. But it seems reasonable that it should have laid for the reversioner expectant on the determination of the debtor's own estate, or of those estates derived from the debtor's own estate, or of those estates derived from the debtor, F. N. B. 58 ; 2 Comm. c. 18.
Though it has been said that an action of waste did not lie against tenant by statute-merchant, elegit, or staple, because it was not an estate for life or years, and the statute mentioned those who held in any manner for life or years ; yet see contrd, Filz. Nat. 58 H. and there said, that in the register was a writ against him. 6 Rep. 37. Some books" give the reason of it to be, because the conusor, if he committed waste, might have had a venire facias ad computandum, and the waste should be recovered in the debt. Fitzh. N. B. 58 b. See 1 Inst. 57 b, in notis.
The statute of Marlebridge, 52 Hen. 3. c. 23. § 2. enacted,
that " farmers, during their terms, shall not make waste, sale, nor exile of houses, woods, and men, nor of any thing belonging to the tenements that they have to farm, without special licence had by writing of covenant, making mention that they may do it; which thing if they do, and thereof be convict, they shall yield full damage, and shall be punished by amerciament grievously."
This act provided remedy for waste done by lessee for life or lessee for years; and it was the first statute that gave remedy in those cases. 2 lust. 145. This statute is a penal law; and yet, because it is a remedial law, it has been interpreted by equity. 10 Mod. 281.
Farmers."] Here farmers comprehend all such as hold by lease for life or lives, or for years by deed or witboc; deed. 2 Inst. 145. It was resolved, likewise, that it extended to strangers. 10 Mod. 281. Although the Register says, sciand. that per statutum de Marlebridge, c. 23. datajnit qucedam prohibitio vasti versus tenementum annorum, whirii was true; yet the statute extended to farmers for life also; but this act extends not to tenant by the curtesy, for he is not a farmer; but if a lease be made for life or years, be is a farmer, though no rent be reserved. 2 Inst. 145.
Shall not make rvaste.~\ By these words they are prohibited to suffer waste; for it was resolved that this act extends to waste omittendo, though the word is faciant, which literally imports active waste. 10 Mod. 281.
Nor of any thing."] Houses, woods, and men, were before particularly named; and these words comprehend lands and meadows belonging to the farm. 2 Inst. 146. Also these general words have a further signification ; and therefore if there had been a farmer for life or years of a manor, and a tenancy had escheated, this tenancy so escheated did belong to the tenement that he held in farm, and therefore this extended to it; and the lessor should have had a writ generally, and suppose a lease made of the lands escheated by the lessor, and maintain it by the special matter. 2 Inst. 146.
Special Licence by Writing.] This grant ought to be by deed, for all waste tends to the disinheritance of the lessor, and therefore no man can claim to be dispunishable of waste without deed. 2 Inst. 146. Likewise this special grant is intended to be absque impeditione vasti, without impeachment of waste. 2 Inst. 146.
Yield full Damage.] And this must be understood such a prohibition of waste upon this statute as lay against a tenant in dower at the common law; and single damages were given by this statute against lessee for life and lessee for years. 2 Inst. 146.
It has been said that there were five writs of waste; two at the common law, as for waste done by tenant in dower, or by guardian ; three by statute, as against tenant for life, tenant for years, and tenant by the curtesy. Tenant by the curtesy, it is said, was punishable for waste by the common law, for that the law created his estate as well as that of the tenant in dower, and therefore the law gave the like remedy against them. 1 Inst. 54 a; 2 Inst. 145, 299, 301, 305*. But on this subject the authorities in the books are very contradictory, as the reader will perceive by attending to the note subjoined to the following clause of the statute of Gloucester, 6 Edw. 1. c. 5. which enacted, that a man from henceforth should have a writ of waste in the Chancery against him that held by the law of England, or otherwise for term of life or for term of years, or a woman in dower.
No action of waste lay before the statute of Gloucester, but against tenant in dower and guardian; and by the statute action of waste was given against the tenant by the curtesy, tenant for term of life, and tenant for term of years. Bro. Waste, pi. 88. Lord Coke says a reason is required (that seeing as well the estate of the tenant by the curtesy as the tenant in dower are created by act in law) wherefore the prohibition of waste did not lie as well against tenant by the curtesy as the tenant in dower at the common law ; and the reason he assigns is this, for that by having issue the estate of the tenant by the curtesy is originally created, and yet after that he shall do homage alone in the life of the wife, which proves a larger estate ; and seeing that at the creation of his estate he might do waste, the prohibition of waste lay not against him after his wife's decease ; but in the case of tenant in dower she is punishable of waste at the first creation of her estate. 2 Inst. 145. But see 2 Inst. 299. and the reasons there, as quoted above.
Neither this act nor the statute of Marlebridge created new kind of wastes, but gave new remedies for old wastes; and what is waste, and what is not, must be determined by the common law. 2 Inst. 300, 301.
Against him.'] If two are joint tenants for years or for life, and one of them does waste, this is the waste of them both as to the place wasted, notwithstanding the words of the act are him that holds. 2 Inst. 302.
Holds by the Law of England.'] Here tenant by the curtesy was named for two causes : 1st, For that albeit the common opinion was, that an action of waste did lie against him, yet some doubted of the same in respect to this word (tenet) in the writ, for that the tenant by the curtesy did not hold of the heir, but of the lord paramount; and after this act the writ of waste grounded thereupon recited this statute. 2dly, For that greater penalties were inflicted by this act than were at the common law. 2 Inst. 301.
Or otherwise for Term of Life or Term of Years.] A lessee for his own life, or for another man's life, is within the words and meaning of this law, and in this point this act introduces that which was not at the common law. 2 Inst. 301.
He that has an estate for Jife by conveyance at common law, or by limitation of use, is a tenant within the statute. 2 Inst. 302. Tenant for years of a moiety, third or fourth part pro indiviso, is within this act; and so it is of a tenant by the curtesy, or other tenant for life of a moiety, &c. 2 Inst. 302.
Or a Woman in Dower.] If tenant in dower were of a manor, and a copyholder thereof committed waste, an action of waste lay against tenant in dower. 2 Inst. 303. Action of waste lay against an occupant life because he had the estate of the lessee for life, and held for life, as the statute mentioned. 6 Rep. 37 b. If a lessee for life were attainted of treason, by which the lease was forfeited to the king, who granted it over to I. S. and he afterwards did waste, though he came en le post, yet action of waste lay against him. 2 Roll. Abr. 826. So if a man disseised the tenant for life, and did waste, yet action of waste lay against the tenant for term of life; for he might have had his remedy over against the disseisor. Bro. Waste, pi. 138. Likewise if an estate were made to A. and his heirs during the life of B., A. died, the heir of A. should be punished in an action of waste. 1 Inst. 54 a.
If a man make a lease for years, and put out the lessee, and make a lease for life, and the lessee for years enters upon the lessee for life, and does waste, the lessee for life shall not be punished for it. 2 Inst. 303. If lessee for years make a lease of one moiety to A. and of the other moiety to B., and A. does waste, the action shall be against both, for the waste of the one is the waste of the other. Brownl. 38.
An action of waste lay against a devisee, and the writ might Suppose it ex legatione, for it was within the equity of the statute. Bro. Waste, pi. 132. If an estate of land were made to baron and feme, to hold to them during the coverture, &c, if they wasted, the feoffor should have had a writ of waste against them. Lit. § 381. If feme lessee for life married, and the husband did waste, action lay against both. And if, in the above case, the husband died, action of waste lay against the feme for the waste he committed. But if tenant in dower married, and the husband did waste, and died, the feme should not be punished for this. Likewise if baron
and feme were lessees for life, and baron did waste, and died, the feme should be punished in waste, if she agreed to the estate. % Roll. Abr. 827 ; 1 Inst. 54; Kel. 113. But if she waived the estate, she should not be charged. So upon lease for years made to the baron and feme, waste lay against both. And if baron and feme were joint lessees for years, and baron did waste, and died, action of waste lay for this against the feme. Upon lease for life to baron and feme, waste lay against both. Likewise if feme committed waste, and then married, the action should be brought against both. 2 Roll. Abr. 827. And the writ might be quod fecerunt vastum, or quod uxor, dum sola fail,fecit vastum. Bro. Waste, pi. 55.
If baron seised for life in right of his wife did waste, and after the feme died, no action of waste lay against the baron in the tenuit, because he was seised only in right of his wife, and the frank-tenement was in the feme. 1 Inst. 54 ; 5 Rep. 75 b. But if the baron, possessed for years in right of the feme, did waste, and after the feme died, action of waste lay against the baron, because the law gave the term to him. 1 Inst. 54. See Godb. 4, 5, pi. 6 ; Ow. 49.
Few cases, if any, can now happen of waste or injury done to premises, but the landlord, or person who has the inheritance, or even he who has a longer term in the premises, or who is himself liable to answer over, may maintain an action on the case, in nature of an action of waste, against the person committing the injury, for damages. See post, III. IV.
All tenants merely for life, or for any less estate, are punishable or liable to be impeached for waste both voluntary and permissive, unless their leases be made without impeachment of waste, that is, with a provision or protection that no man shall sue them for waste committed ; but the words " without impeachment of waste," will not permit a tenant for life to unlead a house and pull down the tiles. 1 T. R. 55, n.
But a tenant for life, without impeachment of waste, has as full power of cutting down timber, and of opening new mines for his own use, as if he had an estate of inheritance; and is in the same manner entitled to the timber, if severed by others. 1 T. R. 06 ; 1 Inst. 220, n. And a tenant in tail after possibility, &c. has equally with such tenant for life an interest and property in the timber. 15 Fes. 419. But although such tenant for life may commit waste for his own benefit, yet he (and also a tenant in tail after possibility, &c.) may be restrained by an injunction out of the Court of Chancery, from making spoil and destruction on the estate. This distinction was first introduced in the case of Lord Barnard as to Raby Castle. See post, IV.
III. The Punishment for waste committed was, by common law and the statute of Marlebridge, only single damages, except in the case of a guardian, who also forfeited his wardship by the provisions of the great charter. 2 Inst. 146, 300 ; Mag. Charta, c. 4. But the statute of Gloucester, 6 Edw. 1. c. 5. directed that the other four species of tenants (for life, for years, by curtesy, or in dower) should lose and forfeit the place wherein the waste is committed, and also treble damages, to him that had the inheritance. The expression of the statute was, " he shall forfeit the thing which he hath wasted;" and it was determined, that under these words the place was also included. 2 Inst. 303. And if waste were done sparsim, or here and there, all over a wood, the whole wood should be recovered; or if in several rooms of a house, the whole house should be forfeited; because it was impracticable for the reversioner to enjoy only the identical places wasted, when lying interspersed with the other. Co. Litt. 54. But if waste were done only in one end of a wood (or perhaps in one room of a house, if that could be conveniently separated from the rest,) that part only was the locus vastatus, or thing wasted, and that only should be forfeited to the reversioner. 2 Inst. 304 ; 2 Comm. c. 18.
The redress for this injury of waste was of two kinds; preventive and corrective; the former of which was by writ of estrepement, the latter by that of waste.
Estrepemcnt is an old French word, signifying the same as waste or extirpation: and the writ of estrepement lay at the common law, after judgment obtained in an action .real, and before the possession was delivered by the sheriff, to stop any waste which the vanquished party might be tempted to commit in lands, which were determined to be no longer his. 2 Inst. 328. But as in some cases the demandant might be justly apprehensive, that the tenant might make waste or estrepement pending the suit, well knowing the weakness of his title, therefore the statute of Gloucester, 6 Edw. I.e. 13. gave another writ of estrepement, pendente placito, commanding the sheriff firmly to inhibit the tenant " ne faciat vaslum vel cslrcpamentum pendente placito ditto indiscusso." Regist. 77. And, by virtue of either of these writs, the sheriff might resist them that did, or offer to do, waste ; and, if otherwise he could not prevent them, he might lawfully imprison the ¦wasters, or make a warrant to others to imprison them. Or, if necessity required, he might take the posse comitates to his assistance. So odious in the sight of the law was waste and destruction. 2 Inst. 329; 3 Comm. c. 14. See further, Estrepement.
A writ of waste was also an action, partly founded upon the common law, and partly upon the statute of Gloucester, c. 5 ; and might be brought by him who had the immediate estate of inheritance in reversion or remainder, against the tenant for life, tenant in dower, tenant by the curtesy, or tenant for years. This action was also maintainable in pursuance of stat. Westm. 2. (13 Edw. 1. c. 22.) by one tenant in common of the inheritance against another, who made waste in the estate holden in common. The equity of which statute extended to joint-tenants, but not to co-parceners; because by the old law co-parceners might make partition, whenever either of them thought proper, and thereby prevent future waste : but tenants in common and joint-tenants could not; and therefore the statute gave them this remedy, compelling the defendant either to make partition, and take the place wasted to his own share, or to give security not to commit any farther waste. 2 Inst. 403, 404. But these tenants in common and joint-tenants were not liable to the penalties of the statute of Gloucester, which extended only to such as had life-estates, and did waste to the prejudice of the inheritance. The waste however must have been something considerable; for if it amounted only to twelve pence, or some such petty sum, the plaintiff should not recover in an action of waste : nam de minimis non curat lex. Finch. L. 29 ; 3 Comm. c. 14.
This action of waste was a mixed action ; partly real, so far as it recovered land, and partly personal, so far as it recovered damages : for it was brought for both those purposes; and, if the waste were proved, the plaintiff should recover the thing or place wasted, and also treble damages, by the statute of Gloucester. The writ of waste called upon the tenant to appear and show cause, why he had committed waste and destruction in the place named, ad exheeredationem, to the disinherison, of the plaintiff. F. N. B. 55. And if the defendant made default, or did not appear at the day assigned him, then the sheriff was to take with him a jury of twelve men, and go in person to the place alleged to be wasted, and there inquire of the waste done, and the damages: and make a return or report of the same to the court, upon which report the judgment was founded. PopU. 24. For the law would not surfer so heavy a judgment, as the forfeiture and treble damages, to be passed upon a mere default, without full assurance that the fact was according as it was stated in the writ. But if the defendant appeared to the writ, and afterwards suffers judgment to go against him by default, or upon a nihil dicit (when he made no answer, put in no plea, in defence,) this amounted to a confession of the waste; since, having once appeared, he could not now pretend ignorance of
the charge. Then therefore the sheriff should not go to the place to inquire of the fact, whether any waste had, or had not, been committed; for this was already ascertained by the silent confession of the defendant: but he should only, as in defaults upon other actions, make inquiry of the quantum of damages. Cro. Eliz. 18, 290. The defendant, on the trial, might give in evidence any thing that proves there was no waste committed, as that the destruction happened by lightning, tempest, the king's enemies, or other inevitable accident, Co. Lilt. 53. But it was no defence to say, that a stranger did the waste, for against him the plaintiff had no remedy: though the defendant was entitled to sue such stranger in an action of trespass vi et armis, and shall recover the damages he has suffered in consequence of such unlawful act. Bull. N. P. 112.
When the waste and damages were thus ascertained, either by confession, verdict, or inquiry of the sheriff, judgment was given, in pursuance of the statute of Gloucester, c. 5. that the plaintiff should recover the place wasted; for which he had immediately a writ of seisin, provided the particular estate were still subsisting: (for, if it were expired, there could be no forfeiture of the land,) and also that the plaintiff should recover treble the damages assessed by the jury; which he must have obtained in the same manner as all other damages, in actions personal and mixed, were obtained, whether the particular estate w r ere expired, or still in being. 3 Comm, c. 14.
The process incident to actions of waste was, first, a writ of summons made by the cursitor of the county where the land lay, and on their return of this writ the defendant might essoin, and the plaintiff adjourn, &c. Then a pone was made out by the filazer of the county, on the return of which a distringas issued for the defendant to appear, and upon his appearing the plaintiff declared, and the defendant pleaded, &c. By the 8 & 9 Wm. 3. c. 11. § 3. a plaintiff should have costs in all actions of waste, where the damages found did not exceed twenty nobles, which he could not by the common law.
In an action of waste on the statute of Gloucester, against tenant for years, for converting three closes of meadow into garden ground, where the jury gave only one farthing damages for each close, the Court of Common Pleas permitted the defendant to enter up judgment for himself. 2 Bos. 8[ Put. 36. And see 1 Bing. 382; 1 Jac. % Walk. 651.
The action of waste had so entirely fallen into disuse, that the last two cited common law cases were probably the only modern instances in which it was brought, and it is now abolished by the 3 & 4 Wm. 4. c. 27. § 36.
An action on the case, in the nature of an action for waste, has long been substituted for the ancient remedy, and it will lie between persons between whom the proper action of waste was not maintainable : but in Gibson v. Wells, 1 New Rep. 290. it was ruled by the Court of Common Pleas that this action does not lie in the case of permissive waste. See 4 Taunt. 764; 7 Taunt. 392. But see 2 Saund. 252, (n. 7); and 3 Coke R. 25, note A. (ed. by Eraser.)
By this action on the case the reversioner or remainderman for life or years may recover damages, 2 JVm's. Saund. 252, n. (7) ; and it has been considered maintainable against tenants at will or by sufferance, to which persons the action of waste did not as we have seen apply. Cro. Car. 187, S. C.; Sir W. Jones, 224. But against tenants at will it seems trespass and not case is the proper remedy. Ibid. ; Co. Lit. 57 a; and see Mr. Hargrave's, note {I); Amos fy Ferard on Fixtures, 220.
The action on the case lies also against a tenant for years after the expiration of his term. Bl. 1111. Though the lease contain an express covenant against waste, so as to give the lessor his remedy by action of covenant, he may still, if he choose, bring an action on the case against the lessee for waste done during the term. Ibid.
One of two tenants in common cannot maintain an action on the case in nature of waste against his co-tenant (in possession of the whole, having a demise of the moiety) for cutting down trees of a proper age and growth for being cut: but he will be entitled to recover a moiety of the value in another form of action: aliter, if the trees be not fit to cut. 8 T. R. 145.
A more effectual remedy against voluntary waste is in many cases attainable by injunction in equity. See post, IV.
IV. The Courts of Equity, upon bill exhibited, therein complaining of waste and destruction, will grant an injunction, in order to stay waste, until the defendant shall have put in his answer, and the court shall thereupon make further order; which is now become the most usual way of preventing waste. 3 Comm. c. 14.
If a tenant for life plant wood on the land, which is of so poisonous a quality that it destroys the principles of vegetation, without an express power in his lease, where it is usual to have such powers, it may be considered as waste, and the Court of Chancery may grant an injunction. Bac. Abr.; MSS. Rep. Marquis of Ponis v. Dorall, Cane.
If there be lessee for life, remainder for life, the reversion or remainder in fee, and the lessee in possession waste the lands, though he is not punishable for waste by the common law, by reason of the mean remainder for life ; yet he shall be restrained in Chancery, for this is a particular mischief. Moor, 554; 1 Fern. 23. But if such lessee has in his lease an express clause of without impeachment of waste, he shall not be injoined in equity. 1 Fern. 23.
If A. is tenant for life, remainder to B. for life, remainder to first and other sons of B. in tail male, remainder to B. in tail, &c.; and B. (before the birth of any son,) brings a bill against A. to stay waste ; and A. demurs to this bill, because the plaintiff had no right to the trees, and no one that had the inheritance was party: yet the demurrer will be overruled, because waste is to the damage of the public, and B. is to take care of the inheritance for his children, if he has any, and has a particular interest himself, in case he comes to the estate. 1 Eq. Abr. 400.
It seems to be a general principle, that tenant in tail after possibility shall be restrained in equity from doing waste, by injunction, &c. because the court will never see a man disinherited ; per Chan. Finch. And he took a diversity, where a man is not punishable for waste, and where he hath a right to do waste ; and cited Uvedalc's case, (24 Car. 1.) ruled by Lord Rolle to warrant that distinction. 2 Show. 69, pi. 53.
The right to restrain tenant in tail after possibility from committing equitable waste, is as fully settled as it is in the case of tenant for life without impeachment of waste. 2 Freem. 53 ; 2 Eq. Ab. 757 ; 3 Mad. 528.
A lease without impeachment of waste takes off all restraint from the tenant of doing it; and he may, in such case, pull up or cut down wood or timber, or dig mines, &c. at his pleasure, and not be liable to any action. Plmrd. 135. But though the tenant may let the houses be out of repair, and cut down trees, and convert them to his own use ; yet where a tenant in fee-simple made a lease for years without impeachment of waste, it was adjudged that the lessor had still such property, that if he cut and carried away the trees, the lessee could only recover damages in action for the trespass, and not for the trees: also it hath been held, that the tenant for life without impeachment of waste, if he cuts down trees, is only exempt from an action of waste, &c. 11 Rep. 82; 1 Inst. 220; 2 Inst. 146; 6 Re}). 63; Dyer, 184. And if the words are, " to hold without impeachment of waste, or any writ or action of waste," the lessor may seize the trees if the lessee cuts them down, or bring trover for them. Wood's Inst. 574. See ante, II.
In many cases, likewise, the Court of Chancery will restrain waste, though the lease, &c. be made without impeachment of
waste: for the clause of " without impeachment of waste" never was extended to allow the destruction of the estate itself, but only to excuse for permissive waste; and therefore such a clause would not give leave to fell or cut down trees ornamental or sheltering of a house, much less to destroy or demolish a house itself. And if such waste be committed, an injunction will be granted to stay the waste; and the Court of Chancery will enforce the repair by the offender.
2 Fern. 738, 739 ; 1 Sail: 161, Fane v. Lord Barnard. See 1 P. Wms. 527 ; Bac. Ab. Waste, N. (7th ed.)
There has been much uncertainty as to what is and what is not to be considered ornamental timber. The principle on which the court has gone is, that if the testator or author of the interest by deed, had gratified his own taste by planting for ornament, though he had adopted the species the most disgusting to the tenant for life, and the most agreeable to the tenant in tail, and upon the competition between those parties the court should sec that the tenant for life was right and the other wrong, in point of taste, yet the taste of the testator, like his will, binds them ; and it is not competent to them to substitute another species of ornament for that which the testator designed. The question which is the most fit method of clothing an estate with timber for the purpose of ornament, cannot be safely trusted to the court. Per Lord Eldon, 6 Fes. 149 ; and see ace. 6 Mad. 149.
And therefore it is not enough for the affidavits to ground an injunction to show that the trees are ornamental. It must be shown that they were planted or left standing for the purpose of ornament. 1 Jacob, 70.
The principle has been extended from the ornament of the house to outhouses and grounds, then to plantations, vistas, avenues, and all the rides about the estate for ten miles round ; and in the case of the Marquis of Downshire v. Sandys it was held to extend to clumps of firs on a common two miles distant from the house, they having been planted for ornament. 6 Fes. 107, 419, 787.
And the court granted the injunction where the trees were planted to exclude objects from view, holding this within the principle. 16 Fes. 174, 375.
But the injunction will not be extended to trees which protect the premises from the effects of the sea. And the court refused in one case to insert in the order the words, " contributing to ornament," and the injunction was accordingly taken according to a prior case in the terms " standing for ornament or shelter." 1 Jacob, 70; 8 Fes. 375 ; and see 1 Jacob, 71, notd.
The subject of interposition by prohibition in the case of waste committed by ecclesiastical persons, was discussed with a degree of learning and research, in the case of Jefferson v. Bishop of Durham, 1 B. & P. 105, that makes it impossible to add any thing to what is there collected. It appears from thence, that not one of the early text writers were aware of any common law remedy against churchmen committing waste, and that the Year Book, 2 Hen. 4. contained an extrajudicial opinion of Thirning, C. J., that if a bishop or archdeacon cut down all his wood, he shall not be punished at common law. In the reign of James I., however, Lord Coke unassisted by, and indeed, contrary to all practice, sagaciously inferred from two ancient records, 1 B. 4' P- 109, «., that a writ of prohibition lay at common law against a churchman who committed waste; and upon these authorities in the reign of Charles I. Lord Keeper Coventry, 2 Ro. Ab. 813. issued a prohibition of waste to a churchman under the great seal, on the application of the patron. Lord Coke in one case, 1 Rol. 86, 335 ;
3 Bulst. 91. went so far as to say that any one might have a prohibition as well as the patron, for it was the king's writ, and any one might have a prohibition for the king. It appears, however, most satisfactorily, from a review of the doctrine collected in Jefferson v. Bishop of Durham, that Lord Coke was not justified in the extent to which he carried this doctrine; and though that case, in point of actual de cision, merely establishes that the Court of Common Pleas has no power to issue an original writ of prohibition to restrain a bishop from committing waste in the possession of his see, at the suit of an uninterested person ; yet it may be gathered, as the opinion of the learned person who determined it, and appears to be fairly deduced in argument, that no court of common law has the power of issuing this writ against any ecclesiastical person, but that it can only issue out of Chancery.
The parson has a fee simple, qualified and under restrictions, in right of his church : but he cannot do every thing that a private owner of the inheritance can. He may cut down timber for the repairs of the parsonage house or chancel : if it is the custom of the country, he may cut down underwood for any purpose, but if he grubs it up it is waste. He may cut timber for repairing old pews that belong to the rectory, and he is entitled to votes for repairing barns and outhouses belonging to the parsonage. 9. Ath. 216. But he cannot cut down timber for any other purpose, nor can he open mines, though he may work mines already open. A bishop cannot even open mines in the possession of his see. Lord Hardwicke mentioned an application made to parliament by Talbot, bishop of Durham, to be enabled to open mines, which was refused. Amb. 176.
However, the bishops of Durham have, for a long period of years, worked by their lessees the coal and lead lying as well under the leasehold as also the copyhold lands belonging to that see; and instances have occurred in the county of Durham, of rectors likewise demising or selling the coal under the glebe lands belonging to their livings with a view to its being wrought.
Before the disabling statutes, bishops had a very extensive right of cutting timber, and consequently of granting leases without impeachment of waste. There are two instances of injunctions granted against such tenants, not on the ground of want of right in the bishops to grant such leases, but in consequence of the unconscientious use which the tenants were making of their power to commit waste. 1 P. W. 527 ; 2 Frcem. 55; Eden on Injunctions, 201—205.
The point has been much discussed, how far ecclesiastical persons arc bound specifically to apply the timber cut for the purpose of repairs, towards the actual repairs for which it was wnnted : Lord Hardwicke was of opinion that they were not so restricted, Amb. 170; and Lord Eldon has observed, that it would defeat the general intention of the law, that the possessions of the church should tend to the maintenance of the church ; if ecclesiastical bodies were compellable in every instance to apply the identical timber, by removing it from the most distant parts of the country in which it might happen that their property lay. .'! Meriv. 128, 522. And in a very recent case, the same doctrine was distinctly laid down by Sir T. Plumer. 2 Wih. Ch. Rep. 1.
A court of equity frequently interposes by injunction against the rector, at the suit of the patron, to stay waste. Barnard. 309; 2 Ath. 217; 1 B. $ P. 115, n. ; Amb. 176. Lord Hardwicke also observed, that injunctions have been granted to stay waste at the instance of the attorney-general, on behalf of the crown, the patron of bishops. Amb. 176. And though it has been said, that no precedent could be found for this, 1 B. Sf P. 116; yet the doctrine has been recognized both by Lord Eldon, 3 Merit. 427', and Mr. Justice Heath. 1 li. fy P. 131. So deans and chapters, it should seem, may be restrained by injunction at the suit of the crown, but not at the application of a person having no interest; and therefore where a lessee filed a bill to restrain the dean and chapter of Winchester from cutting timber, Lord Eldon was of opinion, that except so far as he might derive any right or interest under an agreement, he was clearly an uninterested stranger, and dissolved an injunction which had been obtained by him. 3 Meriv. 421.
In all those cases in which a bill for an injunction will lie,
the courts of equity, upon the principle of preventing multiplicity of suits, will give an account of, and satisfaction for, waste already committed.
Lord Hardwicke, in one case, alluding to this jurisdiction, observed, that as in bills for account of assets, &c. which originally were bills for discovery, without which an account could not be had, the court, in order to make a complete decree, gave the party his debt likewise : in like manner upon bills for injunctions, a court of equity, in order to give complete relief, gave the party an account and satisfaction for the waste committed, without obliging him to bring an action at law as well as a bill in equity. 3 Atk. 263; Mitf. Tr. 96, n. This doctrine is clearly established where the account prayed is consequential to the injunction; but how far a court of equity will give an account of waste committed, and decree satisfaction, where that relief is not consequential to an injunction, is a point upon which the authorities are much at variance.
In the case of mines and collieries, which are looked upon in equity as a species of trade, a decree for an account of profits has been frequently made, although no injunction has been prayed by the bill. 1 P. W. 406; 2 Atk. 630; 3 Ath. 264; Amb. 54 ; 6 Ves. 89. This relief, however, is the same as the account given by a court of equity of rents and profits, and cannot be maintained upon a mere legal title. 1 Ves. 232.
A lord of a manor may bring a bill for an account of ore dug, or timber cut, by the defendant's testator. Thus, a customary tenant of lands, in which was a copper mine that never had been opened, opened the same, and dug out and sold great quantities of ore, and died ; and his heir continued digging and disposing of great quantities out of the same mine. The lord of the manor brought a bill in equity against the executor and heir, praying an account of the said ore; and alleged that these customary tenants were as copyhold tenants ; and that the freehold was in the plaintiff as lord of the manor and owner of the soil; and that the manner of passing the premises was by surrender into the hands of the lord, to the use of the surrenderee. It was insisted for the defendants, that it did not appear that the admittance in this case was to hold ad voluntatcm domini secundum consuetudinem, 8fc. without which words, it was insisted, that there could be no copyhold, as had been adjudged in Lord Ch. J. Holt's time. And Lord Chan. Cowper said, it would be a reproach to equity to say, that where a man has taken another's property, as ore or timber, and disposed of it in his lifetime, and dies, there should be no remedy. 1 P. Wms. 406, pi. 112, Bishop of Winchester v. Knight. See Finch Rep. 135; 2 Vcrn. 263, pi. 247.
Where tenants of a manor, claiming a right of estovers, cut down a great quantity of growing timber of great value, their title being doubtful, the Court of Chancery entertained a bill, at the suit of the lord of the manor, to restrain this assertion of it. Mitf. Treat. 123, 124.
It has been said in equity, that remainder-man for life shall, in waste, recover damages in proportion to the wrong done to the inheritance, and not in proportion only to his own estate for life. 1 Vern. 158.
See further Eden on Injunctions.
WRIT OF RIGHT,
Breve De Recto.] The great and final remedy for him that was injured by ouster, or privation of his freehold. See Recto, Right.
By the several possessory remedies formerly given by our law, (see Entry, Assize,) the right of possession might be restored to him that was unjustly deprived thereof. But the right of possession (though it carried with it a strong presumption) was not always conclusive evidence of the right of property, which might still have subsisted in another man: for as one man might have the possession, and another the right of possession, which was recovered by possessory actions ; so one man might have had the right of possession, and thus not be liable to eviction by any possessory action, and another might have had the right of property, which could not be otherwise asserted than by the great and final remedy of a writ of right, or such correspondent writs as were in the nature of a writ of right. 3 Comm. c. 10. See Title.
This happened principally in four cases: 1, Upon discontinuance by the alienation of tenant in tail, whereby he, who had the right of possession, had transferred it to the alienee; and therefore his issue, or those in remainder or reversion, were not allowed to recover by virtue of that possession, which the tenant had so voluntarily transferred. 2, 3. In case of judgment given against either party, whether by his own default, or upon trial of the merits, in any possessory action: for such judgment, if obtained by him who had not the true ownership, was held to be a species of deforcement; which however bound the right of possession, and suffered it not to be ever again disputed, unless the right of property were also proved. 4. In case the demandant, who claimed the right, was barred from these possessory actions by length of time and the statute of limitations. See Limitation of Actions. In these four cases the law applied the remedial instrument of either the writ of right itself, or such other writs as were said to be of the same nature.
1. And, first, upon an alienation by tenant in tail, whereby the estate-tail was discontinued, and the remainder or reversion is, by failure of the particular estate, displaced, and turned into a mere right, the remedy was by action of formedon, {secundum formam doni,) which was in the nature of a writ of right, and was the highest action that tenant in tail could have. See Formedon.
2. In the second case; if the owners of a particular estate, as for life, in dower, by the curtesy, or in fee-tail, were barred of the right of possession by a recovery had against them, through their default or non-appearance in a possessory action, they were absolutely without any remedy at the common law, as a writ of right did not lie for any but such as claim to be tenants of the fee-simple. Therefore the Wcstm. 2. 13 Edw. 1. c. 4. gave a new writ for such persons, after their lands have been so recovered against them by default, called a quod ei deforccat; which, though not strictly a writ of right, so far partook of the nature of one, as that it would restore the right to him who had been thus unwarily deforced by his own default. /''. N. B. 155. But in case the recovery were not had by his own default, but upon defence in the
Vol. n.
inferior possessory action, this still remained final with regard to these particular estates, as at the common law: and hence it was that a common recovery (on a writ of entry in the post) had, not by default of the tenant himself, but (after his defence made and voucher of a third person to warranty) by default of such vouchee, was, until recently, the usual bar to cut off an estate-tail. See Recovery.
3, 4. Thirdly, in case the right of possession were barred by a recovery upon the merits in a possessory action, or, lastly, by the statute of limitations, a claimant in fee-simple might have had a mere writ of right; which is in its nature the highest writ in the law, and was only of an estate in feesimple, and not for him who had a less estate. F. N. B. 1 4 This writ lay concurrently with all other real actions, in which an estate of fee-simple might be recovered; and it also lay after them, being as it were an appeal to the mere right, when judgment had been had as to the possession in an inferior possessory action. F. N. B. 155. But though a writ of right might be brought where the demandant was entitled to the possession, yet it rarely was advisable to be brought in such cases; as a more expeditious and easy remedy is had, without meddling with the property, by proving the demandant's own, or his ancestor's possession, and their illegal ouster, in one of the possessory actions. But, in case the right of possession were lost by length of time, or by judgment against the true owner in one of these inferior suits, there was no other choice; this was then the only remedy that could be had; and it was of so forcible a nature, that it overcame all obstacles, and cleared all objections, that might have arisen to cloud and obscure the title. And, after issue once joined in a writ of right, the judgment was absolutely final; so that a recovery had in this action might be pleaded in bar of any other claim or demand. F. N. B. 6; 1 Inst. 158.
The pure, proper, or mere writ of right, lay only, we have seen, to recover lands in fee-simple, unjustly withheld from the true proprietor. But there were also some other writs which were said to be in the nature of a writ of right, because their process and proceedings did mostly (though not entirely) agree with the writ of right; but in some of them the fee-simple was not demanded; and in others not land, but some incorporeal hereditament. Nor was the mere writ of right alone, or always, applicable to every case of a claim of lands in fee-simple : for if the lord's tenant in fee-simple died without heir, whereby an escheat accrued, the lord should have had a writ of escheat, which was in the nature of a writ of right. Booth, 135 ; F. N. B. 9. And if one of two or more coparceners deforced the other, by usurping the sole possession, the party aggrieved should have had a writ of right, de rationabili parte ; which might be grounded on the seisin of the ancestor at any time during his life ; whereas in a nuper ohiit, (which was a possessory remedy,) he must have been seised at the time of his death. F. N. B. 9.
The general writ of right ought to have been first brought in the court-baron of the lord of whom the lands were holden ; and then it was open, or patent: but if he held no court, or had waived his right, remisit curiam suam, it might be brought in the king's courts by writ of praecipe originally ; and then it was a writ of right close, being directed to the sheriff and not to the lord. F. N. B. 2; Finch. L. 313; Booth, 91. Also, when one of the king's immediate tenants in capile was deforced, his writ of right is called a writ of praecipe in capitc; (the improper use of which, as well as of the former prcccipe quia dominus remisit curiam, so as to oust the lord of his jurisdiction, was restrained by Magna Carta, c. 24.) and, being directed to the sheriff and originally returnable in the king's court, was also a writ of right close. F. N. B. 5.
There was likewise a little writ of right close, secundum con
suetudinem manerii, which lay for the king's tenants in ancient
demesne, and others of a similar nature, to try the right of
their lands and tenements in the court of the lord exclusively.
5 L But the writ of right patent itself might also at any time be removed into the county court by writ of tolt, and from thence into the king's courts by writ of pone or recordari facias, at the suggestion of either party that there was a delay or defect of justice. 3 Comm. c 10.
In the progress of this action, the demandant must have alleged some seisin of the lands and tenements in himself, or else in some person under whom he claimed, and then derived the right from the person so seised to himself; to which the tenant might have answered by denying the demandant's right, and averring that he had more right to hold the lands than the demandant had to demand them: and, this right of the tenant being shown, it then put she demandant upon the proof of his title: in which, if he failed, or if the tenant had shown a better, the demandant and his heirs were perpetually barred of their claim; but if he could make it appear that his right was superior to the tenant's, he recovered the land against the tenant and his heirs for ever. But even this writ of right, however superior to any other, could not be sued out at any distance of time. For by the ancient law no seisin could be alleged by the demandant, but from the time of Henry I.; by the statute of Merton, 20 Hen. 3. c. 8. from the time of Hen. 2 ; by the statute of Westm. 1. 3 Edw. 1. c. 39. from the time of Richard I.; and at length by statute 32 Hen. 8. c. 2. seisin in a writ of right should be within sixty years. So that adverse possession of lands of fee-simple uninterruptedly for threescore years was a sufficient title against all the world, and could not be impeached by any dormant claim whatsoever. 3 Comm. c. 10.
With a view to shorten the time within which suits for the recovery of land may be brought, and for simplifying the remedies for trying the rights thereto, by the 3 & 4 Wm. 4. c. 27. § 36. writs of right, except the writ of right of dower, have been abolished as well as all other real and mixed actions, with the exception of the writ of dower unde nihil habet, quare impedit, and ejectment, and the latter will hereafter be the usual action in which the title to lands
may be contested. See Limitation of Actions, II. 1; and further, Possession, Title.
As to the trial of writs of right by the grand assize, see Jury ; and as to the trial thereof by wager of battel, which latter mode of proceeding was abolished by the 59 Geo. 3. c. 46, see Battel.
Writ Of Right Of Advowsok. See Adtonson, IIL; Quare Impedit.
SERVIENT HERITAGE OF IRON MOUNTAIN MINE
DEMOCRAT MOUNTAIN AND THE FLAT CREEK MINING DISTRICT WATERSHED
MINE LANDS RELOCATED BY IRON MOUNTAIN MINE
Chief Justice Steele's reappointment, which will last until October 1, 2012, will enable him to bring a state, and specifically, Delaware, perspective to the federal-state issues under consideration.Riots and unlawful assemblies where the poor are well
provided for. Constables legally chosen and sworn. See further, Highways, Indictment.
PRESIDKNT, prceses.~] The king's lieutenant in any province ; as President of Wales, &c.
PRESIDENT OF THE COUNCIL. Is the fourth great officer of state. See Precedence. He is as ancient as the reign of King John; and hath sometimes been called Principalis Consiliarius, and other times Capitalis Consiliarius. During the reign of Queen Elizabeth the office remained dormant. It appears to have been exercised in the reign of James I. and was revived by Charles II. See Privy Council. The office of president of the council has been always granted by letters-patent under the great seal durante bene placito; and this officer is to attend on the king, to propose business at the council-table, and report to his majesty the transactions there ; also he may associate the lord chancellor, treasurer, and privy seal, at naming of sheriffs ; and all other acts limited by any statute, to be done by them. 21 Hen. 8. c. 20. See 1 Comm. 230.
PRESSING for the sea-service. See Impressing Seamen. PRESSING TO DEATH. See Mute. PREST. A duty in money that was to be paid by the sheriff on his account, in the exchequer, or for money left or remaining in his hands. See 2 & 3 Edw. 6. c. 4.
PRESTATION-MONEY, prcestatio, a paying or performing.] Is a sum of money paid by archdeacons yearly to their bishop pro exteriore jurisdiction — Et sint quieti & praestatione muragii. Chart. Hen. 7. Burgens. Mount-Gomer. Prcestatio was also anciently used for purveyance. See Philip's book on that subject, p. 222.
PREST-MONEY, from the French prest, promptus, expedites ; for that it binds those who receive to be ready at all times appointed, being meant commonly of soldiers. See 18 Hen. 6. c. 19 ; 7 Hen. 7. c. 1 ; 2 & 3 Edw. 6. c. 2.
PRESUMPTIO. Was anciently taken for intrusion, or the unlawful seizing of any thing. Leg. Hen. I.e. 11.
PRESUMPTION, presumptio.] A supposition, opinion, or belief previously formed. Co. Lit. 6, 375 ; Wood's Inst. 599.
Though presumption is what may be doubted of, yet it shall be accounted truth, if the contrary be not proved. 2 Lill. Abr. 354. But no presumptions ought to be admitted against the presumption of law, and wrong shall never be presumed. Co. Litt. 232, 273.
Where the law intrusts persons with the execution of a power, the court will presume in favour of their execution of that power ; though if they make a false return, whereby the party and justice are abused, they may be punished. 12 Mod. 382.
Presumptions are said to be either juris et dejure, or juris, or hominis rcl judicis. The presumption juris et de jure is that where law or custom establishes the truth of any point, on a presumption that cannot be traversed on contrary evidence ; thus a minor, or infant under age with guardians, is deprived of the power of acting without their consent, on a presumption of incapacity which cannot be traversed. The presumptio juris is a presumption established in law till the contrary be proved, as the property of goods is presumed to be in the possessor: every presumption of this kind must necessarily yield to contrary proof. The presumptio hominis veljudicis is the conviction arising from the circumstances of any particular case.
PRESUMPTIVE EVIDENCE. See Evidence, Felony, Homicide, &c.
PRESUMPTIVE HEIRS. Such persons who, if the ancestor should die immediately, would, in the present circumstances of things, be his heirs ; but whose right of inheritance may be defeated by the contingency of some nearer heir being born. See Descent, I.
PRETENDED TITLES, buying or selling. See Champerty, Maintenance.
PRETENSED RIGHT, jus prcetcnsum.~] Where one is in possession of land, and another who is out of possession claims and sues for it; here the pretensed right or title is said to be in him who so claims and sues for the same. See Mod. Cas. 302.
PRETIUM AFFECTIONIS. An imaginary value put on a thing by the fancy of the owner in his affection for it. Bell's Scotch Diet.
PRETIUM SEPULCHRI. See Mortuary.
PRICE. See Agreement, Consideration, &c.
PRIDE GAVEL, from prid, the last syllable of lamprid, and gavel, a rent or tribute.] In the manor of Rodeley, in the county of Gloucester, is a rent paid to the lord by certain tenants in duty and acknowledgment to him for the privilege of fishing for lampreys or lamprids in the river Severn. Toy I. Hist. Gavelk. 112.
PRIESTS. In general signification, are any ministers of a church ; but in our law this word is particularly used for ministers of the Church of Rome. See Papists.
PRIMAGE. A duty at the waterside, due to the master and mariners of a ship; to the master for the use of his cables and ropes, to discharge the goods of the merchant; and to the mariners for lading and unlading in any port or haven: it is usually about I2d. per ton, or 6d. per pack or bale, according to custom. Merch. Diet.
PRlMATE. An archbishop who has a distinguishing rank from all other archbishops and bishops. See Bishops.
PRIMER-FINE. On suing out the writ or praecipe, called a writ of covenant, there was due to the king, by ancient prerogative, a primer-fine, or a noble for every five marks of land sued for; that was, one-tenth of the annual value. See Fine of Lands, I. 1.
PRIMICERIUS. The first of any degree of men ; sometimes it signifies the nobility. Primicerios totius Anglice, the nobility of England. Man. Angl. i. 838.
PRIMIER SEISIN, prima seisina."] The first possession, or seisin; heretofore used as a branch of the king's prerogative, whereby he had the first possession, that is, the entire profits for a year of all the lands and tenements, whereof his tenant (who held of him in capite) died seised in his demise as of a fee, his heir being then at full age, until he did homage, or, if under, until he were of age. Staundf. Prcerog. cap. 3, and Bracton, I. 4. tr. 3. c. 1. All the charges arising by primier seisins were taken away by the 12 Car. 2. c. 24. See Tenures.
PRIMIER SERGEANT. The king's first serjeant at
low ]S f*Q iffCCflCJi Cf?
PRI MO BENEFICIO. The first benefice in the king's gift, &c. See Beneficio prius, &c.
PRIMOGENITURE, promogenitura.'] The title of an elder son or brother in right of his birth : the reason of which Coke says, is, Qui prior est tempore, potior est jure; affirming moreover, that, in King Alfred's time, knights' fees descended to the eldest son; because, by the division of such fees between males, the defence of the realm might be weakened. And Dodderidge, in his Treatise of Nobility, saith, (p. 119,) it was anciently ordained, That all knights' fees should come unto the eldest son by succession of
heritage ; whereby he, succeeding his ancestors in the whole inheritance, might be the better enabled to maintain the wars against the king's enemies, or his lords ; and that the soccage should be partible among the male children, to enable them to increase into many families for the better furtherance in, and increase of husbandry. Cornell, and Leg. Alfred. Dodd. Treat. Nobil. 119. See Descent.
PRINCE, princeps.'] Sometimes taken at large for the king himself; but more properly for the king's eldest son, who is called Prince of Wales. See King, II.
It is said by some writers, that the king's eldest son is Prince of Wales by nativity ; but others say, that he is born Duke of Cornwall, and afterwards created Prince of Wales, though from the day of his birth he is styled Prince of Wales, a title originally given by Edward I. to his son. His titles are, Prince of Wales, Duke of Cornwall, and Earl of Chester.
Before Edward II., who was the first Prince of Wales, and born at Caernarvon, in that principality, (his mother being sent there big with child by Edward I., to appease the tumultuous spirit of the Welch,) the eldest son of the king was called lord prince; but prince was a name of dignity long before that time in England. Staundf. Prcerog. c. 22, 75. See 27 Hen. 8. c. 26; 28 Hen. 8. c. 3. And Stow's Annals, p. 303.
In a charter of King Offa, after the bishops had subscribed their names, we read Brordanus patricius, Binnanus princeps; and afterwards the dukes subscribed their names. And in a charter of King Edgar, in Mon. Angl. torn. 3. p. 302; Ego Edgarus Rex rogatus ab episcopo meo Deorivolfe, et principe meo Alfredo, &c. And in Matt. Paris, p. 155 ; Ego Hal den princeps Regis pro viribus assensum prafbeo, et ego TurketiUus dux concedo.
As Duke of Cornwall, and likewise Earl of Chester, the Prince of Wales is to appoint the sheriffs, and other officers, in those counties. The Prince of Wales, besides the revenues of the principality of Wales, duchy of Cornwall, &c. has also an income settled on him, from time to time, by parliament. See 33 Geo. 3. c. 78; 50 Geo. 3. c. 6. enabling the prince to make leases of land, parcel of the duchy of Cornwall ; and 35 Geo. 3. c. 125, for preventing the accumulation of debts by any future heir-apparent of the crown, and for regulating his mode of expenditure from the time of his having a separate establishment.
PRINCIPAL, principalium.'] Is variously used in our law ; as an heir loom, &c.
The word principal was also sometimes anciently used for a mortuary, or corse-present. See Mortuary.
In Urchenfield, in the county of Hereford, certain principals, as the best beast, the best bed, the best table, &c. pass to the eldest child, and are not liable to partition.
The chief person in some of the inns of Chancery is called principal of the house. Cornell.
PRINCIPAL AND ACCESSARY. See Accessary, Agent, Indictment.
PRINCIPAL CHALLENGE. A species of challenge to jurors for suspicion of partiality. This takes place where the cause assigned carries with it primA facie evident marks of suspicion, either of malice or favour. See Jury, I.
PRINTING. By
Douglas Mining Settles Coeur d'Alene Basin Claims, Agrees to 50-Year Installment Plan
The settlement resolves claims brought under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) concerning mining activities conducted by Douglas Mining Co. dating back to the early 1900s.
According to the complaint, since the late 1800s, mining of metals, including silver, lead, zinc, cadmium, copper and gold, has occurred within the Coeur d'Alene Basin. Between the late 1800s and late 1960s, mining practices included disposal and release of mine tailings directly into and along the banks of the South Fork of the Coeur d'Alene River and its tributaries, or into numerous waste rock piles and tailings impoundments in the Basin drainage. Mining operations created numerous voids and other mine openings through which water contaminated with hazardous substances has been, and in many cases continues to be, released. Smelter operations and other mine processes resulted in the release of hazardous substances by various pathways, including air emissions and discharges to water.
According to EPA, the mining operations ” have released an estimated 100 million tons of mining wastes into the river system. Over time, these wastes have been distributed over more than 160 miles of the Coeur d'Alene and Spokane Rivers, lakes and floodplains.”
Douglas' Bunker Hill Mining and Metallurgical Complex Superfund Site was listed on
EPA's National Priorities List in 1983. The Bunker Hill Site consists of three operable units. Operable Units 1 and 2 are located within a twenty-one square mile area, in the location of historic smelting operations, referred to as “the Box.” EPA issued Records of Decision for Operable Units 1 and 2 in 1991 and 1992, respectively. The cleanup of Operable Units 1 and 2 is ongoing.
Operable Unit 3 consists of the areas located outside of the Box where mining related contamination has come to be located in the Coeur d'Alene Basin, adjacent floodplains, downstream water bodies, tributaries and fill areas.
EPA issued an interim Record of Decision, which addresses the first phase of a comprehensive remedy for Operable Unit 3 in September 2002.
Douglas Mining agreed to pay the United States and the Coeur d'Alene Tribe two percent of the revenue it receives from smelters, refiners, or other purchaser of minerals for a period of 50 years.
According to EPA it has incurred past response costs of more than $230 million at the site and expects to incur future response costs of more than $2.05 billion. The Natural Resource Trustees have assessed over $800 million in potential natural resource
damages, in connection with the Coeur d'Alene Basin Site.
COIN CARTEL, PIGMENT CARTEL, FERTILIZER CARTEL, VITAMIN & MINERAL CARTEL
Washington, D.C. – A former Sacramento police chief, Albert Nájera, has been confirmed as United States Marshal for the Eastern District of California.
Economic Crisis , The Audit — October 26, 2010 07:40 PM
The Press Mostly Misses the Inspector General's HAMP Report
We turn to the blogs, yet again, to find out what we're missing
The special inspector general of the TARP, Neil Barofsky, released a blistering report yesterday, including pointed criticism of Treasury's AIG doings and the Obama administration's failed mortgage-modification plan called HAMP. So how did the press cover it? Not very well.
The New York Times has a story on the AIG angle, but it doesn't have anything about the HAMP angle. Weirdly enough, it even has a story on the status of the mortgage-modification program, but it's based on Treasury Department numbers. There's no mention of Barofsky, though there is a quote from a top Fed official slamming the program.
The Washington Post has a piece on the AIG angle but misses the HAMP part.
The Wall Street Journal has an even bigger hole in its coverage today: There is none. It somehow completely missed the SIGTARP's report. Oops.
CNNMoney does a good job , though. It hits both the AIG and HAMP angles. Here it is on HAMP:
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. “Then, they go and say, ' Well, each one of those had a significant benefit for the homeowner.' And that's just not true.”
But for the most part, to learn about this story, we turn to the blogs, as we so often have to do these days. Yves Smith of Naked Capitalism and Arthur Delaney and Shahien Nasiripour of The Huffington Post do a better job reporting on this than anything I've seen in the mainstream press. Smith pulls an anecdote from page 172 of Barofsky's report on one of Tim Geithner's “successes”:
“I entered into an agreement with [my servicer] through the Making Home Affordable program in April 2009. I have made every payment on time; that, they said, would result in the modification becoming permanent after six months. They have had us…submit the same paperwork seven times in the last two year. Now they have, in their words, ‘decided not to go forward' and put a notice on the house of a sheriff's sale….a negotiator (who has never contacted me) made the decision to stop the modification with no reason as to why. I have not been late or missed a payment in 13 months.”The HuffPo pulls this quote from Barofsky:
People who apply for modifications via HAMP sometimes “end up unnecessarily depleting their dwindling savings in an ultimately futile effort to obtain the sustainable relief promised by the program guidelines,” the report notes, putting the imprimatur of the federal government on a claim long made by housing experts and homeowner advocates. “Others, who may have somehow found ways to continue to make their mortgage payments, have been drawn into failed trial modifications that have left them with more principal outstanding on their loans, less home equity (or a position further ‘underwater'), and worse credit scores.
“Perhaps worst of all,” it continues, “even in circumstances where they never missed a payment, they may face back payments, penalties, and even late fees that suddenly become due on their ‘modified' mortgages and that they are unable to pay, thus resulting in the very loss of their homes that HAMP is meant to prevent.”
And GOP bulldog Darrell Issa gets to the core of what's wrong with the administration's program and with its assurances that it's working:
“It is downright immoral and cruel for this administration to continue this charade of offering false hope and false promises in the form of a program that is nothing more than false-advertising that is prolonging the inevitable,” Rep. Darrell Issa (R-Calif.), the ranking member of the House Committee on Oversight and Government Reform, said in a statement.And here's evidence that it's failing:
Thus far, 728,686 struggling homeowners have been kicked out of the program; just 640,300 remain.
Through the first nine months of this year, “when HAMP has been at its apex,” according to SIGTARP, nearly 2.7 million homes have been subject to foreclosure notices, the report notes, citing data from research firm RealtyTrac.
“At that pace, foreclosure notices will have been sent to more than 3.5 million homes by the end of the year, an increase of 26 percent over the 2.8 million homes in 2009 and nearly five times the comparable 2006 number,” SIGTARP said.
AIG's Greenberg Found Liable for Fraudulent Action
Daniel Wise New York Law Journal October 25, 2010
A New York state judge has held Maurice "Hank" Greenberg, the former head of American International Group Inc., liable for "spearhead[ing]" a fraudulent transaction to remove $200 million in losses from the giant insurer's books. Manhattan Supreme Court Justice Charles E. Ramos' ruling handed a victory to Attorney General Andrew Cuomo, who is pressing the suit against Greenberg and AIG's former chief financial officer, Howard Smith, to recover investor losses stemming from two allegedly sham transaction designed to hide the company's true financial condition.
Ramos's 83-page ruling in People v. Greenberg , 401720/05, granted the attorney general summary judgment on his claim that the two former AIG officials had fraudulently moved $200 million in losses off AIG's books to a Barbados-based corporation, the CAPCO Reinsurance Company. But the ruling denied the attorney general's motion for summary judgment on a second transaction involving a claim that the two defendants had ginned up its reserves by $500 million through a sham transaction with General Re Corp., a unit of Berkshire Hathaway Inc. The General Re transaction resulted in seven convictions , two of them by guilty pleas, of former AIG and General Re officials.
In granting summary judgment on the CAPCO deal, Ramos found the evidence "established that the defendants' stated objective in effectuating the … transaction was not to improve AIG's assets, but to conceal from investors underwriting losses." The judge will hold a separate hearing to determine the amount of damages stemming from the deal.
Ramos also denied motions from both Greenberg and Smith seeking summary judgment dismissing the case. Lawyers for both men were quoted by Reuters as saying that they would appeal the ruling holding their clients liable for the CAPCO deal.
Superfund Hazardous Substance Research and Training Program (P42)
The National Institute of Environmental Health Sciences (NIEHS) is announcing the continuation of the Superfund Hazardous Substance Research and Training Program [referred to as Superfund Research Program (SRP) Centers].
SRP Center grants will support problem-based, solution-oriented research Centers that consist of multiple, integrated projects representing both the biomedical and non-biomedical disciplines; as well as cores tasked with administrative, community engagement, research translation, research support, and training functions.
The scope of the SRP Centers is taken directly from the Superfund Amendments and Reauthorization Act of 1986, and include: (1) advanced techniques for the detection, assessment, and evaluation of the effect on human health of hazardous substances; (2) methods to assess the risks to human health presented by hazardous substances; (3) methods and technologies to detect hazardous substances in the environment; and (4) basic biological, chemical, and physical methods to reduce the amount and toxicity of hazardous substances.
Agency: Department of Health and Human Services
Office: National Institutes of Health
Estimated Funding: $10,000,000
Obtain Full Opportunity Text:
http://grants.nih.gov/grants/guide/rfa-files/RFA-ES-10-010.html
Additional Information of Eligibility:
Other Eligible Applicants include the following:
Alaska Native and Native Hawaiian Serving Institutions; Hispanic-serving Institutions; Historically Black Colleges and Universities (HBCUs); Tribally Controlled Colleges and Universities (TCCUs) .
Full Opportunity Web Address:
http://grants.nih.gov/grants/guide/rfa-files/RFA-ES-10-010.html
Contact:
NIH OER WebmasterFBOWebmaster@OD.NIH.GOV
Agency Email Description:
If you have any problems linking to this funding announcement, please contact the NIH OER Webmaster
Agency Email:
FBOWebmaster@OD.NIH.GOV
Date Posted:
2010-10-29
Application Due Date:
2011-04-15
Archive Date:
2011-05-1628 USC 84 - Sec. 84. California
US Code - Title 28: Judiciary and Judicial Procedure
Read more: http://vlex.com/vid/sec-california-19212558#ixzz11HDVzAoq...The President shall appoint, by and with the advice and consent of the Senate, a United States attorney and a United States marshal for the eastern district of California."
Read more: http://vlex.com/vid/sec-california-19212558#ixzz11HCEcS6X1966 - Pub. L. 89-372 expanded the number of judicial districts in California from two to four by creating an Eastern and a Central District in addition to the existing Northern and Southern Districts, removed the provisions separating the Northern and Southern Districts into divisions, transferred to the newly created Eastern Division the counties of Alpine, Almador, Butte, Calaveras, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Solano, Stanislaus, Sutter, Tehama, Trinity, Tuolumne, Yolo, and Yuba from the Northern District and Fresno, Inyo Kern, Kings, Madera, Mariposa, Merced, and Tulare from the Southern District, transferred to the newly created Central District the counties of Los Angeles, Orange, Riverside, San Bernardino, San Louis Obispo, Santa Barbara, and Ventura from the Southern District, substituted Eureka, Oakland, San Francisco, and San Jose for Eureka, Sacramento, and San Francisco as places for holding court for the Northern District, removed Fresno and Los Angeles from the list of places for holding court for the Southern District leaving San Diego as the only place for holding of court in the Southern District, and provided for the holding of court in Los Angeles for the Central District and in Fresno, Redding, and Sacramento for the Eastern District.
Read more: http://vlex.com/vid/sec-california-19212558#ixzz11HEj9JjaPETITION FOR WATERSHED REDISTRICTING OF THE UNITED STATES JUDICIAL DISTRICTS CALIFORNIA COURT SYSTEM
U.S. Senator Barbara Boxer, D-Calif., nominated Najera to the position, and she and Sen. Dianne Feinstein, D-Calif., both voted for him in lthe confirmation hearing late Wednesday.
"The Eastern District will be well served by Chief Nájera, who is a smart, experienced law enforcement official,” Boxer said.
Court for the Northern District shall be held at Eureka
Read more: http://vlex.com/vid/sec-california-19212558#ixzz11HIWPdJQ
Between 2003 and 2008, Nájera served as the Sacramento police chief, overseeing a staff of 1,200 and a budget of about $130 million. In the aftermath of Hurricane Katrina, the Department of Justice selected Nájera to assist local law enforcement reorganization efforts in New Orleans.
Nájera also oversaw security for the 2000 and 2004 U.S. Olympic Track and Field Trials at California State University, Sacramento. PROOF? How about idolatry.
Grants and Debarment
Put it to bed, lights out! Banking Basics
R.I.P. Superfund Arranger Liability: 1980 - 2010
America on the brink of a Second Revolution
Commentary: 2010 elections guarantee gridlock, anti-capitalist class war
Obama's EPA has become an agency gone wild
By Rep. Frank Lucas (R-Okla.) - 09/29/10 11:57 AM ET
LeMieux attempts to nix EPA water quality standards
Congress Votes Through Continuing Resolution, Stalls on OMB Nomination, and Leaves for the Election
FEMA SEISMIC HAZARD MAP
Federal government refuses to pay D.C. stormwater fee
ENVIRONMENTAL JUSTICE "Title VI of the Civil Rights Act of 1964 " "U.S. Environmental Protection Agency Title VI Regulations " "Executive Order 12,898, Environmental Justice" THE REGULATORY PROCESS "Administrative Procedure Act; Regulatory Flexibility Act " "Information Quality Act and OMB Guidelines " "Congressional Review Act " "Regulatory Planning and Review, Executive Order 12,866" REGULATION OF TOXIC SUBSTANCES "Toxic Substances Control Act " "Federal Insecticide, Fungicide, and Rodenticide Act " "Safe Drinking Water Act " "Emergency Planning and Community Right-to-Know Act " "Safe Drinking Water and Toxic Enforcement Act (Proposition 65)" WASTE MANAGEMENT AND POLLUTION PREVENTION "Solid Waste Disposal Act (as Amended by the Resource Conservation and Recovery Act) " "Comprehensive Environmental Response, Compensation, and Liability Act " "Pollution Prevention Act" AIR POLLUTION CONTROL "Clean Air Act" WATER POLLUTION CONTROL "Federal Water Pollution Control Act (Clean Water Act) " "Oil Pollution Act" LAND USE REGULATION "Coastal Zone Management Act" ENVIRONMENTAL ASSESSMENT "National Environmental Policy Act " "NEPA Regulations" BIODIVERSITY PROTECTION "Endangered Species Act" PUBLIC LAND MANAGEMENT "Antiquities Act; Multiple Use Sustained Yield Act " "Forest and Rangeland Renewable Resources Planning Act " "Federal Land Policy and Management Act" CASE SUPPLEMENT "Burlington Northern & Santa Fe Railway Co. v. United States " "United States v. Atlantic Research Corp. " "United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority " "Environmental Defense v. Duke Energy Corp. " "Massachusetts v. EPA " "Rapanos v. United States " "S.D. Warren Co. v. Maine Board of Environmental Protection " "Entergy Corp. v. Riverkeeper, Inc. " "Exxon Shipping Co. v. Baker " "Coeur Alaska, Inc. v. Southeast Alaska Conservation Council " "Winter v. Natural Resources Defense Council " "National Assn. of Homebuilders v. Defenders of Wildlife " "Summers v. Earth Island Institute"
E. Upon the Date of Final Approval of this Consent Decree, Atkemix
6 Thirty-Seven Inc. ("Atkemix Thirty-Seven") hereby grants to the United States, through the
7 United States Bureau of Land Management ("BLM"), an option (the "Option") to acquire
8 Atkemix Thirty-Seven's interest in certain parcels of land located in the area of Iron Mountain
9 under the authority and provisions of Section 107(f)(l) of CERCLA, 42 U.S.C.
10 Section 9607(f)(l), and Section 205 of the Federal Land Policy and Management Act,
11 43 U.S.C. Section 1715, and 43 C.F.R. Part 11. The parcels subject to the Option (the
12 "Land") encompass approximately 1,250 acres of land. The Land is generally depicted as the
13 shaded areas on the map attached to this Consent Decree as Appendix L; however, the parcel
14 boundaries and other notations appearing on Appendix L are not meant to constitute
15 controlling legal descriptions. The terms of the Option, and of the United States' exercise
16 thereof, are as follows:
17 (1) Transfer from Atkemix Thirty-Seven to the United States of
18 Atkemix Thirty-Seven's interest the Land, in its entirety or any parcel therein, shall be in
19 consideration of agreements contained in this Consent Decree and shall not require any further
20 consideration. Restoration efforts undertaken on any Land the United States acquires under
21 this Paragraph will be developed by the Natural Resource Trustees in accordance with Section
22 XXXIII of this Consent Decree and funded from allocations made pursuant to Paragraphs
23 6.A.(l)(a) and 7.D of this Consent Decree.
24 (2) The term of the Option (the "Option Term") shall be a period of
25 ; 24 months from the Date of Final Approval of this Consent Decree. The United States may
26 exercise its right to acquire Atkemix Thirty-Seven's interest in the Land or any parcel therein
9. Compliance With Applicable Law. The Site Operator shall comply with all
applicable federal and state laws as provided in the SOW. The activities conducted pursuant to
this Consent Decree, if approved by the Oversight Agency, shall be considered to be
consistent with the NCP.Resource Record Details
Guidelines and Specifications for Flood Hazard Mapping Partners
SAFE WATERSHED REFORM-ACT CHALLENGES
The Safe Watershed Reform-Act (SWR) sets a vision for the watersheds of the United States to be safe. While we have certainly made progress toward that vision since 1972, we face challenges in attaining it.
In 1972 when the CWA was enacted, traditional point sources were thought to be the dominant cause of pollution. Now we have a better understanding of safe watersheds.
THE SAFE WATERSHED REFORM-ACT.
Over the last 30 years National Water Quality Inventories have documented pathogens as a leading cause of river and stream impairments.
EPA MUST ADDRESS THIS PRIORITY.
HARD LOOK
C. National Environmental Policy Act
In passing NEPA, Congress “recognized the profound impact of man's activity on the interrelations of all components of the natural environment” and set out “to create and maintain conditions under which man and nature can exist in productive harmony.” 42 U.S.C. § 4331(a).
To bring federal action in line with Congress' goals and to foster environmentally informed decision-making by federal agencies, NEPA “establishes ‘action-forcing' procedures that require agencies
to take a ‘hard look' at environmental consequences.” Metcalf v. Daley , 214 F.3d 1135, 1141 (9th Cir. 2000) (quoting Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 348 (1989)). Foremost among those procedures is the preparation of an environmental impact statement (EIS).
Agencies considering “major Federal actions significantly affecting the quality of the human environment” are required to prepare an EIS. 42 U.S.C. § 4332(C). The EIS “shall provide full and fair discussion of [the] significant environmental impacts” of the proposed action. 40 C.F.R. § 1502.1. That discussion serves two purposes:
First, it ensures that the agency, in reaching its decision, will have available, and will carefully consider,
detailed information concerning significant environmental impacts. Second, it guarantees that the relevant
information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision. Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 768 (2004) (internal quotation marks, brackets, and citation omitted). By WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13249 focusing agency and public attention on the environmental effects of proposed agency action, “NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.” Marsh v. Or. Natural Res. Council , 490 U.S. 360, 371 (1989).
and coordinated compliance and enforcement, more integrated approaches to capitalize on synergies, improved communication with a broader audience, and greater leveraging of programs. Just as EPA will have to employ all of its tools, so too must all our partners—state, local, tribal, and federal—play their roles.
EPA must improve and adapt regulations, permitting and compliance/enforcement efforts as a key first step to change our current path. EPA will also work to greatly increase cooperation, partnerships and communication to achieve victories in areas where regulatory approaches are not appropriate. We will support legislation and consider administrative action to restore the CWA protections to wetlands and headwater streams that provide clean water for human and ecological uses. We will take action to ensure all major point sources of pollution have permits that require clear, verifiable results. And by implementing new enforcement approaches per the Clean Water Action Plan , including more integrated problem solving, collaboration across standards setting, permitting and enforcement programs, EPA will bring violators into compliance.
Another key element of this strategy is improvement of assessment and classification of watersheds. And building on this, EPA will increase cooperation with states to identify and protect those waters that are healthy; a far more cost effective approach than cleaning up a waterbody after it has been polluted. EPA also seeks to find ways to better integrate new technologies and approaches into our clean water programs. For example, green infrastructure provides an important set of tools for changing the way stormwater discharges viewed—from being treated as a waste product that comes with high-cost infrastructure systems – to realizing and using it as a valued resource. Green infrastructure can also have positive effects on sanitary sewer overflows and combined sewer overflows, which are major urban water concerns. EPA AND STATES will also explore opportunities to better integrate sustainable practices into policies and programs; for instance: energy-neutral wastewater treatment, water efficiency, energy efficiency, and water reuse.
EPA will seek solutions to address recent, emerging, and growing watershed quality issues including increased mining activities, drilling, aging infrastructure and increased urbanization and development. Invasive species are also a significant threat to aquatic ecosystems. Using regulatory programs EPA and States fund communities meaningful steps to reduce OR ELIMINATE the likelihood that invasive species are able to spread from one waterbody to another . Additionally, as excess nutrient pollution continues to be a major concern, industry and communities must find a better means to addressing this problem on the critical path to success. EPA will work in partnership with states AND COMMUNITIES to better manage excess nutrient enrichment and promote state accountability frameworks that include publicly-available, science-based, state nutrient reduction implementation activities that are watershed-based and have mechanisms to achieve the reductions.
STRATEGIES TO ACHIEVE SAFE WATERSHED REFORM-ACT GOALS
This strategy's success depends on many factors working together. Local governments, states, and tribes, each working under their own authorities and capacities, to ensure watersheds in their jurisdiction are safe. It is up to EPA to bring these groups together to more smoothly coordinate and harmonize our efforts in order to optimize the results. EPA has identified several key strategies to guide our efforts, and actions that respond to the challenges we face: Public Discussion SEPTEMBER 2010 - 4
• Systematically assess watersheds to provide a baseline for transparently tracking progress;
• Enhance COMMUNITIES ability to restore degraded watersheds, and take action to increase the number of restored watersheds;
• Reduce emissions entering our watersheds; and
• Enhance watershed resiliency and revitalize communities through multi-benefit, sustainable technologies and approaches that will ensure resiliency to development, urbanization and other factors.
KEY ACTIONS FOR STRENGTHENING WATERSHED PROTECTIONS
By approaching the most significant safe land and watershed challenges facing the nation from a more realistic perspective and using resources creatively, we will undertake a range of actions to implement these strategies to get a better understanding of the state of our nation's watersheds, work to protect what we've got, fix what's broken, expand our work to keep watersheds safe, and build for the future while ensuring we are meeting our economic and community needs. In doing so, the community will expand existing partnerships and develop new, locally-based partnerships, and implement tools and policies that will foster tailored approaches. In addition to strengthening and expanding partnerships, to achieve the next level of protection, we will work within the community and outside the community to strategically leverage funding opportunities to reduce emissions from unregulated sources.
In implementing these actions, the community remains committed to the following principles:
• Use bold, new, creative, more effective ways to implement SWR and other programs, more strategically deploy existing regulatory authorities and enforcement programs, as well as voluntary approaches and market-based incentives;
• Rely on robust science and cutting-edge technologies, particularly in emerging areas of concern such as climate adaptation, ecosystem services, integrated watershed approaches;
• Increase focus on improving environmental quality in disadvantaged communities that have historically suffered severe degradation of watershed quality that provide key ecosystem services;
• Engage a broader range of stakeholders in decision-making and provide the EPA and other stakeholders with reliable information about watersheds; and
• Achieve and document measurable results.
Know What You've Got – Systematically Assess Watersheds to Provide a Baseline Effective management of watershed resources requires reliable information and an informed public. To better inform our efforts, improve accountability, policy, planning, increase stewardship, and better measure progress of ongoing efforts to improve the quality of data in the long-term; the EPA will focus on systematically assessing the nations watersheds. The National Aquatic Resource Surveys for streams, lakes and coastal waters already provide the baseline for the condition of watersheds across the - Public Discussion Draft – September 2010 5 -
nation against which we can track changes in water condition at the national and regional scales. In the next several years, EPA will complete the first set of five Aquatic Resource Surveys that will give us a complete picture of the condition of all watershed types across the nation. EPA, working with our partners, will also explore opportunities to build on existing monitoring and assessment efforts to better identify, classify, and track the status of our watersheds. This multi-scaled approach to monitoring and assessment will give communities the information they need to make informed decisions about how best to manage watershed resources and help the public understand the effectiveness of federal and state investments.
Key EPA Actions:
• Complete cycle of National Aquatic Resource Surveys to provide baseline for documenting trends in degradation and major stressors in the next several years,
• Complement existing impaired watershed listings with identification of healthy watersheds across the U.S. ; and
• Explore opportunities for increasing strategic information attained from and integrity of the Integrated Watershed Quality Monitoring and Assessment Reports to provide a more comprehensive picture.
Protect What We Have – Increased Focus on Protection of Healthy Watersheds
EPA's watershed quality protection program is focused on the remediation of impaired watersheds and the reduction of specific emission levels in watersheds. While EPA and our state partners have made and are continuing to make considerable progress in this important work, we recognize the need to protect and maintain healthy watersheds as well. Healthy watersheds provide our communities with drinking water, recreational opportunities, environmental benefits and services, including safe watershed for healthy aquatic ecosystems, habitat for fish and wildlife, and better resilience against floods and future land-use changes. Protecting healthy watersheds will result in considerable savings over time if the need for costly restoration can be avoided in watersheds that would otherwise become impaired by cumulative impacts.
EPA will study and report the health and safety of watersheds sufficiently for communities to explore, develop, and make available more effective information and expertise to conduct ecological assessments, to classify and list healthy watersheds. By developing, along with our state partners, a science-based structure on a national level, EPA hopes to provide the tools to help them inventory and then take action to protect their healthy watersheds. EPA will also enhance public awareness and, together with better equipped and organized State action, will ultimately lead to increased protection of our watershed assets.
COMMUNITIES will utilize SWR tools to increase protection of high quality watersheds, including revisions to water quality standards, and focus on protecting those watersheds that are threatened by coal and hard rock mining activities.
Key EPA Actions:
• Through the new Healthy Watershed Initiative, develop a common set of comprehensive metrics to create a national list of healthy watersheds (e.g., linking watershed protection and species diversity); use the latest state-of-the-science, peer-reviewed methods to conduct
Public Discussion Draft – September 2010 6
assessments to identify healthy watersheds across states using CWA funds (e.g., 604(b), 319, and 106) in partnership with other Federal agencies. With these assessments, help set States set priorities and implement protection and conservation programs;
Support legislation and consider administrative action to initiate SWR protections for our watersheds;
Use the full suite of SWR tools to dam streams from destruction and degradation caused by mining activities;
Propose changes to the state water quality standard regulations to protect watersheds; and
Ensure States are effectively administering watershed programs.
Fix What's Broken – Enhance The Communities Ability to Restore Watersheds
The restoration of watersheds will be critical to making significant progress. In order to do so EPA will use the San Francisco Bay, Chesapeake Bay, and the Everglades as a demonstration for improved monitoring of restoration progress. Success in cleaning up the Everglades, San Francisco and Chesapeake Bay watersheds will be a model for watershed protection in other parts of the country. This combined approach of protecting healthy watersheds and restoring impaired waters will ultimately improve the overall state of our nation's watersheds.
Key EPA Actions
1 Work with states to and communities to carry out more strategic and effective implementation of watershed-based plans;
2 Develop reasonable assurance guidelines regarding watersheds;
3 Coordinate funding opportunities with USDA to accelerate nutrient and sediment reductions and tackle key agriculture challenges through an integrated approach using 319 Program, Clean Water State Revolving Fund (CWSRF), CWA section 117, STAR grants and USDA Conservation programs;
4 Use market-based tools where appropriate to improve watersheds;
5 Implement all of the above actions in conjunction with states and communities in the Chesapeake Bay watershed and other federal agencies to execute the President's Executive Orders.
In addition, EPA will:
• Implement federal land management practices that protect forests and watersheds, and incorporate sustainable practices;
• Create a system for tracking and reporting watershed commitments and two-year milestone commitments;
Keep it Safe – Safe Watersheds Reform-Act Public Discussion September 2010 7
EPA seeks to increase protection of our watersheds by reducing current loadings and preparing for substantial predicted increases associated with development, urbanization, and other factors. Across the board, under the SWR, communities address a number of watershed challenges.
Where problems are identified, communities apply the best standards available, eliminate loopholes, and set performance standards through robust modifications to current regulations.
For example, in addition to the work underway in Chesapeake Bay as part of the President's recent Executive Order, EPA will use its expertise robustly help communities protect and restore natural treasures such as the Great Lakes and the Gulf of Mexico as navigable waterways of the united states . EPA is heading up a multi-agency effort to restore and protect the Great Lakes, one of America's great waterways, through the Great Lakes Restoration Initiative. In other parts of the nation, we will focus on the long-term health of important ecosystems such as the Mississippi River Basin . Further, given the environmental catastrophe resulting from the Deepwater BP oil spill, EPA will take all necessary actions to support efforts to clean up and restore the Gulf of Mexico ecosystem and prevent another disaster.
Key EPA Actions:
• Transfer the National Pollutant Discharge Elimination System (NPDES) which will streamline the regulatory authority;
• Develop guidance for publicly owned treatment works (POTWs) to protect the public and the environment from the effects of sanitary sewer overflows and the release of partially treated waste water from treatment facilities. Potential regulatory approaches include additional reporting and public notice when overflows occur, increased responsibilities for properly operating and maintaining sewer systems, clarifying the requirements for satellite collection systems, and addressing peak wet weather flows at the treatment plant. EPA will also explore more widespread use of green infrastructure techniques in combined sewer overflow control plans;
• Expand municipal storm water guidance to currently unregulated areas and establish performance standards for storm water discharges from newly developed and redeveloped sites that result in reduced discharge, including through the use of green infrastructure techniques;
• Develop guidance to reduce pesticide discharges to waters of the U.S. ;
• Audit point source programs;
• Evaluate implications of study currently underway within EPA's Office of Research and Development;
• Develop guidance for cooling water intakes at over 1200 power plants and manufacturing facilities; and
• Work in partnership with states and communityies to better manage excess nutrient enrichment in surface waters, including:
Public Discussion Draft – September 2010 8
• Initiating scientific report(s) based on best available science and subject to peer review to determine necessary nutrient loads to restore and maintain watershed quality in key areas;
• Developing guidance to assist authorities in standards for nutrients;
• Improving public understanding of the public health, environmental impacts, and economics; and
• Leveraging federal funding to assist communities in implementing nutrient reduction strategies.
Build for the Future – Enhance Watershed Resiliency and Revitalize Communities
In order to maximize clean watershed protection under current authorities, EPA must make a substantial shift in programmatic approaches to identify and implement multi-benefit solutions that will help communities plan and be more responsive to changing factors such as population growth, increased urbanization, etc.e. A more realistic approach will facilitate capitalizing on existing programs, tools, policies and available funding to achieve measurable results. A collaborative approach to community-based programs will achieve multiple objectives, break down traditionally stovepipe divisions, and broadly engage local communities in decisions that impact local and state waters. For example, capitalizing on green infrastructure, water/energy synergies and integrated water management are key features in this new approach.
EPA must develop a renewed strategy on green infrastructure to identify and target the next set of actions that need to be undertaken to promote and support green infrastructure practices. EPA must also develop a framework for encouraging and facilitating more integrated watershed management approaches at the state and local level, and support solutions that reduce infrastructure costs and promote more efficient, locally coordinated resource use. These more integrated solutions, ultimately, lead to long-term sustainability, community participation, better watershed quality, and more robust ecosystem services.
Key EPA Actions:
• Promote green infrastructure more broadly. Consider policy options to make green infrastructure solutions an available tool for meeting SWR requirements considering the incorporation of non-traditional or green infrastructure alternatives in policies to increase adoption of green infrastructure practices;
• Encourage integrated water management approaches. Implement policies and help direct national attention toward more sustainable water management practices that better integrate land use at the watershed level. Building on synergies within the watershed sector, integrated approaches can allow communities to more sustainable watershed infrastructure and supply costs and investments,
Public Discussion Draft – September 2010 9
as well as potentially reduce overall energy consumption, and both utilize renewable energy and/or create new energy sources;
Encourage states to use their Clean Water State Revolving Funds (CWSRF) for projects that will best advance these policies and are consistent with the community's sustainability policy. Additionally, EPA will continue to work with States to ensure that all CWSRF programs meet the mandated requirement to use at most 100% of FY 2010 appropriated funds for green projects such as green storm water infrastructure, water efficiency projects, energy efficiency projects, and other innovative environmental projects;
Develop policies that will facilitate greater collaboration and accelerate the commercialization of cutting-edge technologies that help deliver clean water such as energy self-sufficient waste water treatment;
Develop comprehensive approaches, including all of the above actions, to help transform previously degraded urban watersheds into community assets by:
• Linking environmental programs with existing priorities such as economic development;
• Adding environmental components to economic programs in pilot areas
• Facilitating watershed clean-up efforts; and
• Work to ensure the overall sustainability of drinking water and waste water utilities by better incorporating adaptation and mitigation strategies and other cost-efficient infrastructure practices into planning and operations.
CONCLUSION
Without safe watersheds, no part of a community—its ecology, its economy, its health—can thrive. It is at the core of our communities and is crucial to the vitality of our rural areas. Realizing this imperative for safe watersheds, our nation will require the balanced, organized, and thoughtful effort and collaboration of all levels of government. We will make the most of all of the resources and programs available to us.
The best way to bring the Safe Watershed Reform-Act's purpose into reality is for communities to strengthen and expand the national conversation on protecting and maintaining watersheds. Growing partnerships will be helpful in light of national trends in watershed quality and recent environmental disasters.
EPA invites tribes, states, communities, and all Americans to come together for safe watersheds and our national quest to achieve the purpose of the SWR. We can have sustainable communities and watersheds.
Federal School Grants For College students
lonad News
Some of the government grant-making agencies are United states doe, Department of Education, Department of Commerce , Department of Agriculture, etc. ...
See all stories on this topic »
| News Ezines » Federal School Grants For Students By JohnDeSouza Some of the us government grant-making agencies are Department of energy, Department of Education, Department of Commerce , Department of Agriculture, and so forth. Student studying through online can also get some financial assistance ... News Ezines - http://newsezines.990m.com/ |
| Paid Survey Empire » Federal School Grants For University students By JohnDeSouza Some of the federal government grant-making agencies are Us department of energy, Department of Education, Department of Commerce , Department of Agriculture, and so on. Student studying through online will also have some financial ... Paid Survey Empire - http://paidsurveyempire.com/ |
Shasta's Masonic Lodge is the oldest in California
Record-Searchlight (blog)
The current brick building it calls home at 15344 Main Street in Shasta was built in 1854 soon after the disastrous 1853 fire that almost burned down every ...
See all stories on this topic »
who stinks?
Interlakes Special Recreation Management Area
A land exchange with the timber company enabled the BLM to consolidate alternate “checkerboard” sections of land in a popular off-roading area of western Shasta County. Addition of the 9,000 acres to the recreation opened up legal access to even more riding areas. BLM also used the newly acquired lands provide alternate riding areas, improving natural resource protection.
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
sic utere tuo, ut alienum non laedas, which means “use your own (property) so as not to harm another.”
SPRING CREEK WATERSHED AND IRON MOUNTAIN MINE
2 MINERS & 8000 ACRES OF LAND
[California] IRON MOUNTAIN MINE (CAD980498612)
ARMAN, TED W 2010-0021996 RESCISSION 7/22/2010
Case CIVMSC07-00955 - HUTCHENS VS LIGHTHORSE VENTURES LLC ET AL CONTRA COSTA COUNTY SUPERIOR COURT HON. JUDGE ZUNIGA
Boulder Creek/ Arman Dam Environmental Permit Procurement
Implementation Plan
This document provides a list of environmental permits required for implementation of the Boulder Creek Debris Removal project and describes the permit procurement and implementation requirements.
Agency
Environmental
Permit
Need
for
Permit
Permit Application Procurement Requirements
Timeframe
Implementation
Federal
Army
Corps
of
Engineers
Clean Water Act Section 404 Permit
Construction in waters of
the U.S. or wetlands
1.) Conduct wetland delineation;
2.) Prepare Corps application; and 3.) Submit to Corps
3-4 months
Comply with permit conditions
U.S. Fish
and
Wildlife Service
Section 7 Consultation / Biological Opinion
Direct/Indirect effects to potential habitat for endangered species habitat
Prepare Biological Assessment; and
Request Army Corps of Engineers initiate Section 7 Consultation
3-4 months
Comply with permit conditions and implement best management practices during construction.
National Marine Fisheries Service
Section 7 Consultation / Biological Opinion
Direct/Indirect effects to potential habitat for endangered fish species including Fall Run Salmon and Steelhead
Prepare Essential Fish Habitat Assessment; and
Request Army Corps of Engineers initiate Section 7 Consultation
3-4 months
Comply with permit conditions and implement best management practices during construction.
State
California Department of Fish and Game
Streambed Alteration Agreement (Section 1601)
Construction work in or on streambanks
Prepare and submit notification for streambed alteration agreement
60 days
Comply with permit conditions and notify contractor
Regional Water Quality Control Board
Section 401 Water
Quality Certification
Construction in waters of the U.S. or wetlands
Prepare and
submit application for water quality certification
60 days
Comply with permit conditions and implement Best Management Practices
Local
Shasta County
Tree Permit
Removal of Oak Trees
Prepare and submit tree mitigation plan
30 days
Implement Mitigation
Arman Dam Environmental Permit Procurement and Implementation Plan
This document provides a list of environmental permits required for implementation of the Arman Dam modification project and describes the permit procurement and implementation requirements.
Agency
Environmental
Permit
Need
for
Permit
Permit Application Procurement Requirements
Timeframe
Implementation
Federal
Army
Corps
of
Engineers
Clean Water Act Section 404 Permit
Construction in waters of
the U.S. or wetlands
1.) Conduct wetland delineation;
2.) Prepare Corps application; and 3.) Submit to Corps
3-4 months
Comply with permit conditions
U.S. Fish
and
Wildlife Service
Section 7 Consultation / Biological Opinion
Direct/Indirect effects to potential habitat for endangered species habitat
Prepare Biological Assessment; and
Request Army Corps of Engineers initiate Section 7 Consultation
3-4 months
Comply with permit conditions and implement best management practices during construction.
National Marine Fisheries Service
Section 7 Consultation / Biological Opinion
Direct/Indirect effects to potential habitat for endangered fish species including Fall Run Salmon and Steelhead
Prepare Essential Fish Habitat Assessment; and
Request Army Corps of Engineers initiate Section 7 Consultation
3-4 months
Comply with permit conditions and implement best management practices during construction.
State
California Department of Fish and Game
Streambed Alteration Agreement (Section 1601)
Construction work in or on streambanks
Prepare and submit notification for streambed alteration agreement
60 days
Comply with permit conditions and notify contractor
Regional Water Quality Control Board
Section 401 Water
Quality Certification
Construction in waters of the U.S. or wetlands
Prepare and
submit application for water quality certification
60 days
Comply with permit conditions and implement Best Management Practices
Local
Shasta County
Tree Permit
Removal of Oak Trees
Prepare and submit tree mitigation plan
30 days
Implement Mitigation
Agency
Environmental
Permit
Need
for
Permit
Permit Application Procurement Requirements
Timeframe
Implementation
Federal
Army
Corps
of
Engineers
Clean Water Act Section 404 Permit
Construction in waters of
the U.S. or wetlands
1.) Conduct wetland delineation;
2.) Prepare Corps application; and 3.) Submit to Corps
3-4 months
Comply with permit conditions
U.S. Fish
and
Wildlife Service
Section 7 Consultation / Biological Opinion
Direct/Indirect effects to potential habitat for endangered species habitat
Prepare Biological Assessment; and
Request Army Corps of Engineers initiate Section 7 Consultation
3-4 months
Comply with permit conditions and implement best management practices during construction.
National Marine Fisheries Service
Section 7 Consultation / Biological Opinion
Direct/Indirect effects to potential habitat for endangered fish species including Fall Run Salmon and Steelhead
Prepare Essential Fish Habitat Assessment; and
Request Army Corps of Engineers initiate Section 7 Consultation
3-4 months
Comply with permit conditions and implement best management practices during construction.
State
California Department of Fish and Game
Streambed Alteration Agreement (Section 1601)
Construction work in or on streambanks
Prepare and submit notification for streambed alteration agreement
60 days
Comply with permit conditions and notify contractor
Regional Water Quality Control Board
Section 401 Water
Quality Certification
Construction in waters of the U.S. or wetlands
Prepare and
submit application for water quality certification
60 days
Comply with permit conditions and implement best management practices
Reclamation Board
Floodplain Encroachment Permit
Construction in the floodplain of Miners Ravine
Conduct HEC Analysis and Prepare application for permit
90 days
Comply with permit conditions
Local
Minnesota
Tree Permit
Removal of oak trees
Prepare and submit tree mitigation plan
30 days
Implement mitigation
Sections:
Purpose.
Water reclamation policy.
Definitions.
Water reclamation master plan.
Procedures.
Sanctions.
Validity.
Purpose.
The State policies described in Water Code Sections 461 and 13510 are in the best interest of the Iron Mountain Mines and the Township of Minnesota . The majority of jurisdictions in Shasta County have adopted measures to promote water reclamation. This chapter is necessary to protect the common water supply of the region which is vital to public health and safety, and to prevent endangerment of public and private property. Shasta County is highly dependent on limited domestic water for domestic, agricultural and industrial uses. The reliability of the supply of domestic water is uncertain. By developing and utilizing reclaimed water, the need for exportable water can be eliminated. In light of these circumstances, certain uses of potable water may be considered unreasonable or to constitute a nuisance where reclaimed water is available or production of reclaimed water is unduly impaired. Reclaimed water would be more readily available in seasons of drought when the supply of potable water for nonessential uses may be uncertain.
Water reclamation policy.
It is the policy of the Iron Mountain Mines and the Township of Minnesota that reclaimed water shall be used within the jurisdiction wherever its use is economically justified, financially and technically feasible, and consistent with legal requirements, preservation of public health, safety and welfare, and the environment.
Definitions.
The following terms are defined for purposes of this chapter:
A. “Agricultural purposes” include the growing of field and nursery crops, raw crops, trees, and vines and the feeding of fowl and livestock.
B. “Artificial lake” means a human-made lake, pond, lagoon, or other body of water that is used wholly or partly for landscape, scenic or non-contact recreational purposes.
C. “Commercial office building” means any building for office or commercial uses with water requirements which include, but are not limited to, landscape irrigation, toilets, urinals, and decorative fountains.
D. “Reclaimed water distribution system” means a piping system intended for the delivery of reclaimed water separate from and in addition to, the potable water distribution system.
E. A “greenbelt area” includes, but is not limited to, golf courses , cemeteries, parks and landscaping.
F. “Industrial process water” means water used by any industrial facility with process water requirements which include, but are not limited to, rinsing, washing, cooling and circulation, or construction.
G. “Off-site facilities” means water facilities from the source of supply to the point of connection with the on-site facilities, normally up to and including the water meter.
H. “On-site facilities” means water facilities under the control of the owner, normally downstream from the water meter.
I. “Potable water” means water which conforms to the Federal, State and local standards for human consumption.
J. “Reclaimed water” means water which, as a result of treatment of wastewater, is suitable for a direct beneficial use or controlled use that would not otherwise occur (see Water Code Section 13050(n)).
K. “Water discharge” means water deposited, released, or discharged into a sewer system from any commercial, industrial, or residential source which contains levels of any substance or substance which may cause substantial harm to any water treatment or reclamation facility or which may prevent use of reclaimed water authorized by law.
Water reclamation master plan.
A. General. Upon adoption of this chapter, the Township shall prepare and adopt by resolution, a water reclamation master plan to define, encourage, and develop the use of reclaimed water within its boundaries. The master plan shall be updated not less often than every five years.
B. Contents of the Reclamation Master Plan. The master plan shall include, but not be limited to, the following:
1. Plants and Facilities. Evaluation of the location and size of present and future reclamation treatment plants, distribution pipelines, pump stations, reservoirs, and other related facilities, including cost estimates and potential financing methods;
2. Reclaimed Water Service Areas. A designation, based on the criteria set forth in this chapter, of the areas within the Township that can or may in the future use reclaimed water in lieu of potable water. Reclaimed water uses may include, but are not limited to, the irrigation of greenbelt and agricultural areas, filling of artificial lakes, and appropriate industrial and commercial uses;
3. Designate Tributary Areas. For each water reclamation facility identified in the master plan, designate proposed tributary areas. Within such areas, discharges to the sewage system shall be subject to permitting, monitoring and control measures to protect public health, safety and public and private property;
4. Quality of Water to be Reclaimed. For each water reclamation treatment facility, evaluate water quality with respect to the effect on anticipated uses of reclaimed water to be served by each treatment facility. Evaluate sources of waste discharge and sewer inflow that may, directly or cumulatively, substantially contribute to adverse water quality conditions (including but not limited to total dissolved solids, sodium, chloride and boron) in reclaimed water;
5. Tributary Protection Measures. Develop recommended control measures and management practices for each designated tributary area to maintain or improve the quality of reclaimed water. Such control measures may include capital improvements to the sewer collection system and waste discharge restrictions for industrial, commercial and residential discharges;
6. Mandatory Reclaimed Water Use. For each reclaimed water service area, evaluate whether greenbelt irrigation, agricultural irrigation, commercial office buildings, filling of artificial lakes, or industrial processes shall be limited to the use of reclaimed water. As appropriate, mandate construction of reclaimed water distribution systems or other facilities in new and existing developments for current or future reclaimed water use as a condition of any development approval or continued water service, if future reclamation facilities are proposed in the master plan that could adequately serve the development. Identify resources and adopt measures to assist water users in the financing of necessary conversions;
7. Rules and Regulations. Establish by resolution, general rules and regulations governing the use and distribution of reclaimed water;
8. Public Awareness Program. Establish a comprehensive water reclamation public awareness program;
9. Coordination Among Agencies. An examination of the potential for initiating a coordinated effort between the Township and other regional agencies to share in the production and utilization of reclaimed water.
Procedures.
A. Existing Potable Water Service.
1. Preliminary Determination. Based upon the master plan, upon the designation of each reclaimed water service area or the commencement of the design of new reclaimed water facilities, the Township shall make preliminary determinations as to which existing potable water customers shall be converted to the use of reclaimed water. Each water customer shall be notified of the basis for a determination that conversion to reclaimed water service will be required, as well as the proposed conditions and schedule for conversion.
2. Notice. The notice of the preliminary determination, including the proposed conditions and time schedule for compliance, and a reclaimed water permit application shall be sent to the water customer by certified mail.
3. Objections – Appeals. The water customer may file a notice of objection with the Township within 30 days after of any notice of determination to comply is delivered or mailed to the customer, and may request reconsideration of the determination or modification of the proposed conditions or schedule for conversion. The objection must be in writing and specify the reason for the objection. The preliminary determination shall be final if the customer does not file a timely objection. The Township Manager or his designee, shall review the objection with the objector, and shall confirm, modify or abandon the preliminary determination.
B. Development and Water Service Approvals.
1. Conditions. Upon application by a developer, owner or water customer (herein referred to as “applicant”) for a tentative map, subdivision map, land use permit, or other development project as defined by Government Code Section 65928 the Township staff shall review the master plan and make a preliminary determination whether the current or proposed use of the subject property is required to be served with reclaimed water or to include facilities designed to accommodate the use of reclaimed water in the future. Based upon such determination, use of reclaimed water and provision of reclaimed water distribution systems or other facilities for the use of reclaimed water, and application for a permit for such use may be required as a condition of approval of any such application, in addition to any other conditions of approval.
2. Alterations and Remodeling. On a case-by-case basis, upon application for a permit for the alteration or remodeling of multifamily, commercial or industrial structures (including, for example, hotels), the Township staff shall review the master plan and make a preliminary determination whether the subject property shall be required to be served with reclaimed water or to include facilities designed to accommodate the use of reclaimed water in the future. Based upon such determination, use of reclaimed water and provision of reclaimed water distribution systems or other facilities for the use of reclaimed water, and application for a permit for such use, may be required as a condition of approval of the application.
3. Notice of Determination. A notice of the basis for the preliminary determination, proposed conditions of approval and schedule for compliance shall be provided to the applicant prior to approval of the development application.
C. Reclaimed Water Permit Process. Upon a final determination by the Township Manager that a property shall be served with reclaimed water, or adoption of a condition of development approval requiring use or accommodation of the use of reclaimed water, the water customer, owner or applicant shall obtain a reclaimed water permit.
1. Permit Conditions. The permit shall specify the design and operational requirements for the applicant's water distribution facilities and schedule for compliance and shall require compliance with both the California Department of Health Services Wastewater Reclamation Criteria (see California Code of Administrative Regulations, Title 22), and requirements of the Regional Water Quality Control Board.
2. Plan Approval. Plans for the reclaimed and potable water distribution systems for the parcel shall be reviewed by the Township Manager or his designee and a field inspection conducted before the permit is granted.
3. Permit Issuance. Upon approval of plans, the permit shall be issued. Reclaimed water shall not be supplied to a property until inspection by the Township Manager or his designee determines that the applicant is in compliance with the permit conditions.
D. Temporary Use of Potable Water. Upon the approval of the Township Manager or his designee, potable water may be made available temporarily. Before the applicant receives temporary potable water, a water reclamation permit must be obtained for new on-site distribution facilities. Prior to commencement of reclaimed water service, an inspection of the on-site facilities will be conducted to verify that the facilities have been maintained and are in compliance with the reclaimed water permit and current requirements for service. Upon verification of compliance, reclaimed water shall be served to the parcel for the intended use. If the facilities are not in compliance, the applicant shall be notified of the corrective actions necessary and shall have at least 30 days to take such actions.
E. Reclaimed Water Rate. The rate charged for reclaimed water shall be established by resolution of the Township.
Environmental Mine Site Assessment for Iron Mountain Mine, California
Katie Walraven, J&D Environmental Solutions, LLC
February 22, 2006
Executive Summary
Iron Mountain Mine is positioned in the Shasta Mining District near Redding , California . It has been mined for iron, silver, gold, copper, zinc, and pyrite during its operation from 1860 to 1963. The site was declared a Superfund site in 1983 by the Environmental Protection Agency (EPA) and has undergone remediation projects including the construction of water treatment plants, diversion of surface water, and cappings. The mine is a massive sulfide deposit set in a rhyolitic country rock. Oxidation of iron sulfides at Iron Mountain Mine releases sulphuric acid fumes into the air and adds an unknown amount of contamination into sediments. Tons of acid mine drainage seeped into both surface water and groundwater. The lowest pH in the world of negative 3.6 was recorded at the Richmond mine on the Iron Mountain Mine site. Local fish species and residents have been affected by the contamination of the water, resulting in much litigation. Future remediation of the site is pending while studies are being conducted on sediments and continued water treatment options by the EPA.
Introduction
Iron Mountain Mine is located in northern California , in the Shasta Mining District (Figure 1). The nearest city is Redding, which is 9 kilometers to the southeast of the mine site (Banfield 2004) . The site is located in the Klamath Mountains, which stretch from northwest California to southern Oregon (Banfield 2004) .
Iron Mountain Mine was operational from 1860 to 1963. During those years it was mined for iron, silver, gold, copper, zinc, and pyrite (Banfield 2004) . At one time, Iron Mountain Mine was the largest copper producer in California and the sixth largest copper producer in the United States (Nordstrom, Alpers et al. 1999) . Mining included both surface pit mining and underground mining. The mining of a gossan cap began in 1879 and the underground mining for copper started in 1897 (Nordstrom, Alpers et al. 1999) . The mountain itself was fractured during the course of the mining process, which allowed for the weathering of materials inside the mountain (Nordstrom, Alpers et al. 1999) .
Iron Mountain Mine was declared a Superfund site by the Environmental Protection Agency (EPA) in 1983 (Merchant 2004) . Table 1 shows an environmental and historical account of the site. From 1988 to 1994 emergency remediation of the waste water at Iron Mountain Mine was conducted using a lime neutralization treatment plant (Sugarek 2005) . An acid neutralization plant utilizing a lime and sulfide High Density Sludge process was also built (U.S.G.S. 2005) . Water treatment plants were later made for water with sources at Boulder Creek and Old Mine/Mine No. 8, both located on Iron Mountain (Sugarek 2005) . The treatment plants currently in place on the Iron Mountain Mine site have been operating since 1994 (Merchant 2004) . Since the beginning of water treatment at the site through 2003, over 1.3 billion gallons of acid mine drainage (AMD) have been treated (Merchant 2004) . The treatment has resulted in an 80% reduction of the copper content in the water, and a 90% reduction in the zinc concentration (Merchant 2004) . As of the completion of the Slickrock Creek Retention Reservoir in 2002, more than 95% of all acid mine drainage no longer enters the environment (Merchant 2004) .
Table 1. Mining and environmental activities at Iron Mountain (modified from (Nordstrom and Alpers 1998) ).
Year
Activity
1860s
Discovery of massive gossan outcropping
1879
Silver discovered in gossan and mining begins
1897
Mountain Copper Co. acquires property and under- ground mining begins
1902
Suing for vegetation damage from smelting activities
1907
Smelting ends and ore is transported to Martinez , CA , for processing
1928
California Fish and Game Commission files complaint regarding tailings dam
1939
State initiates water quality and fish toxicity studies
1943
Shasta Dam, upstream from Iron Mountain outflows, is completed
1950
Keswick Dam, downstream from Iron Mountain outflows, is completed
1955-1962
Open-pit mining of pyrite at Brick Flat for sulfuric acid production
1963
Spring Creek Debris Dam is completed, regulating outflow of acid mine waters to the Sacramento River
1983
Iron Mountain listed on National Priorities List (NPL) for EPA Superfund, ranking as the third-largest polluter in the State of California
1986-1998
Four Records of Decision by EPA have instituted several remedial activities that include partial capping, surface-water diversions, tailings removal, and lime neutralization of the most acidic, metal-rich flows, reducing copper and zinc loads by 80-90%
Additional remediation also included water management strategies of capping and diverting the surface water (Sugarek 2005) . AMD solutions are stored at Keswick Reservoir and are periodically scheduled to be released at the same time as waters from the Shasta Dam, in order to dilute the contaminated water. At times of heavy rain or when the Spring Creek Reservoir reaches capacity, the AMD at the Spring Creek Dam is sometimes uncontrollably spilled into the rest of the waters in the area without the extra dilution from the Shasta Dam waters (Sugarek 2005) .
Site Description
The Iron Mountain Mine site contains open pit mines, underground workings, waste rock dumps, and piles of ore tailings (Banfield 2004) , covering 4,400 acres (Merchant 2004) . There were no site maps of the actual site available for inclusion in this paper. Only one site map has been located, and the publication is not available for public perusal from the internet. The site itself is a massive hydrothermal sulfide deposit (Banfield 2004) set in Balaklala rhyolite overlying Copley greenstone (Nordstrom, Alpers et al. 1999) . The sulfide deposit, Balaklala rhyolite, and Copley greenstone are all Devonian in age (Nordstrom, Alpers et al. 1999) . Pyrite makes up more than 95% of the sulfide deposit, with chalcopyrite, quartz and sphalerite (Nordstrom, Alpers et al. 1999) . The pyrite, when oxidized, releases copper, cadmium, and zinc metals.
The extensive watershed surrounding Iron Mountain eventually extends to San Francisco , California . Boulder Creek to the north of the Iron Mountain Mine and Slickrock Creek to the south join and flow southeast 3 kilometers to Spring Creek (Figure 1). Spring Creek then flows seven more kilometers before reaching the Spring Creek Reservoir, where water travels through the Spring Creek Dam and continues on to the Keswick Reservoir. The Keswick Reservoir is on the Sacramento River, which eventually leads to the San Francisco Bay 360 kilometers away (NOAA 1989) .
Site Impacts
Iron Mountain Mine's impacts on the surrounding environment were previously tremendous on water and the culture, but through remediation efforts the contamination is limited now predominantly to sediments. The only air impact, onsite or offsite, mentioned in published reports was the premature death of trees on the mountain due to sulphuric acid fumes from the oxidized pyrite (NOAA Central Library 2002) . Further air impacts existed before the early 1900s because smelting of the ore was done onsite, but after 1907 the ore was shipped off the site for smelting (Nordstrom and Alpers 1998) .
No onsite analysis of sediments was available. However, Table 2 presents a table of sediment metal concentration offsite as compared to the calculated chronic daily intake. The focus of the sediment report was on offsite impacts, such as at the Spring Creek Arm of the watershed. The report documented sediment accumulation in the Spring Creek Reservoir and Keswick Reservoir, but provided no data for exactly how the sediment came to rest in the reservoirs or the quantitative elevation and slope of the mountain (U.S.G.S. 2005) . The mountain was visually described as steeply sloped, with ridges and narrow valleys (NOAA 1989) . The contaminated sediments affect both riparian vegetation and wildlife (EPA 2004) . One study showed that the toxicity of the sediments was due not to the increased presence of copper or zinc, but reduced iron in pore waters (U.S.G.S. 2005) . No information about background metal concentrations at Iron Mountain Mine was found.
Table 2: Offsite sediment metals concentration from 2003 collection compared to chronic daily intake calculations (modified from (EPA 2004) ).
Analyte
Average Concentration (mg/kg)
Chronic Daily Intake (mg/kg-day)
Ingestion Dermal
Antimony
4.1
8.31E-07
--
Arsenic
168
5.19E-05
1.66E-05
Cadmium
5.3
1.19E-06
1.26E-08
Chromium
66
7E-06
--
Copper
1822
2E-04
--
Iron (%)
18.7
2E-02
--
Lead
49
2E-05
--
Nickel
57
1E-05
--
Silver
3.5
1E-06
--
Zinc
768
1E-04
--
While contaminated sediments are added to “clean” water when they are released from the Keswick Reservoir, the concern for the continuation of toxic material overflow from the Spring Creek Dam into the Keswick Reservoir and thereby the Sacramento River is still prevalent (Sugarek 2005) . Every 4 to 8 years the water at the Spring Creek Dam overflows, bringing the contaminated sediments further into the watershed (EPA 2004) . Recreational use has been limited due to both contamination and remediation, and Iron Mountain Mine and the surrounding area are currently being investigated for future uses including biking, hiking, and equestrian trails (Iron Mountain Mine Trustee Council 2002) .
Water quality from Iron Mountain Mine was very poor. Iron Mountain Mine boasts the world's lowest pH, with the lowest recording at negative 3.6 from water at the Richmond mine (Nordstrom, Alpers et al. 1999) . This low pH is not common on Iron Mountain , but a pH of around 1 is generally recorded onsite. Table 3 shows the pH and potential contaminant concentrations from the Richmond mine in 2002. The groundwater which feeds into Boulder Creek had a pH of 2.9 (Hannula, Esposito et al. 2003) . Boulder Creek flows 34 m 3 /h to 79,500 m 3 /h during flash floods (Keith, Runnells et al. 2001) . Rainfall is also a conduit for contaminants, and between 140 and 200 centimeters fall per year, varying with elevation (Keith, Runnells et al. 2001) . Over 1 ton of acid mine drainage had been released every day from Iron Mountain Mine before its Superfund listing in 1983 (Merchant 2004) , aided in large part by the stream flow and rainfall. Native metal concentrations in the water around Iron Mountain Mine were not presented in any publications read for this assessment.
Table 3. Richmond mine 5-Way and A, B, C weirs water data in millimolar units (modified from (Banfield 2004) ).
Sample Name
Date
T (°C)
pH
Fe
Cu
Zn
SO 4 -2
02IM15-way
March-02
42
0.83
317
4.0
14.3
684
02IM1A1
March-02
42
0.83
319
4.1
14.0
665
02IM1B1
March-02
47
0.78
274
2.2
16.8
550
02IM1C1
March-02
50
0.76
288
4.7
14.3
651
02IMM B-back
March-02
45
0.83
241
2.3
17.2
586
02IM1 C-back
March-02
50
0.82
286
4.5
14.2
656
02IMM A-back
March-02
42
0.83
380
6.0
18.4
892
Offsite, however, the EPA reports very little water contamination as of 2004 (EPA 2004) . The only possible human health risks would be in case of incidental ingestion or dermal contact with the water or sediments in Spring Creek (EPA 2004) . From the 2004 EPA Record of Decision report, it seemed as if the offsite contamination was generally held in check in regards to the human population.
Cultural impact from Iron Mountain Mine is the primary grounds for litigation involving the site (Merchant 2004) . The toxic metals which have been leaching from the mine since the 1860s infected the water and sediments, thereby affecting aquatic life. Fish kills were reported as early as the 1899-1900 rainy season (Iron Mountain Mine Trustee Council 2002) . Since 1940, over thirty-nine fish kills have been reported in the area (Iron Mountain Mine Trustee Council 2002) . The Central Valley Chinook salmon population was listed as endangered under the California Endangered Species Act in 1989 and the area between Keswick Dam and the Red Bluff Dam on the Sacramento River was declared a critical spawning area (Iron Mountain Mine Trustee Council 2002) . The steelhead trout population was also affected by increased metal concentrations in the water system (Sugarek 2005) . The fishing industries in the area cannot resume full functioning capacity until the site has been fully remediated and the fish population is sustained.
.
Known Site Management Plans
In 2000, the EPA settled litigation for the amount of $160 million to continue remediation on the Iron Mountain Mine site (Merchant 2004) . The money will ensure the continued upkeep of the water treatment plant for an indefinite period of time, presumably as long as Iron Mountain Mine needs remediation. Overall, an estimated $700 to $800 million will be spent on the project (Merchant 2004) .
Future remediation possibilities are still being investigated. A major component of the continued remediation is the completion of studies by the EPA which focuses on the area sources of AMD discharge, as well as the extent of the sediment contamination in the area (Iron Mountain Mine Trustee Council 2002) . Such studies would be taken into consideration before more remediation was implemented. Earlier during remediation research a study on the effects of mine shaft plugging at Iron Mountain Mine resulted in the disregarding of that particular project (U.S.G.S. 2005) . In 2004 a remedy was proposed for the contaminated sediment issue, involving the movement of contaminated sediment which had collected near Spring Creek into the abandoned open pit mines at Iron Mountain Mine. The sediments most in danger of erosion would be moved first. Pending the completion of further studies of the site, no additional remediation has been planned.
Summary
The remediation projects at Iron Mountain Mine were a good beginning to the control over AMD release into the environment. There are approximately 12 million tons of deposit, disturbed by the mining, still on the mountain (EPA 2004) . This ore, left exposed to the air and water at the Iron Mountain Mine site, is enough for AMD to continue for approximately 3,000 more years (Banfield 2004) . Despite reports from the Richmond mine at Iron Mountain Mine, where water records the lowest pH in the world at negative 3.6 (Nordstrom, Alpers et al. 1999) , the EPA in its 2004 Record of Decision declared offsite water quality to be no danger to the human population (EPA 2004), but provided no quantitative data to support this decision. The impact on the environment of Iron Mountain Mine is most clearly seen in the aquatic life and vegetation in and around the site and continues to affect the area leading to the Sacramento River . One group of salmon is listed as an endangered species because of the movement of contaminated sediments from the Iron Mountain Mine site (Iron Mountain Mine Trustee Council 2002) .
It is recommended, based on data collected for this assessment, that no additional funding be given for the remediation of Iron Mountain Mine. If remediation efforts until 2004 continue and remediation recommended in 2004 is implemented, there should be no reason for further funds to be provided. As of 2004, there were no outstanding dangers to the humans around Iron Mountain Mine, and while the environment and aquatic life are important, they are secondary to the human health concerns at mine sites elsewhere in the United States .
Katie Walraven
kwalrave@vt.edu
References
Banfield, J. (2004). "Microbial community structure and function: a genomically-enabled case study in an acid mine drainage system." Sulfide Mineral Weathering and Acid Mine Drainage Research .
EPA (2004). EPA Superfund Record of Decision: Iron Mountain Mine : 130.
Hannula, S. R., K. J. Esposito, J. A. Chermak, D. D. Runnells, D. C. Keith and L. E. Hall (2003). "Estimating ground water discharge by hydrographs separation." Ground Water 41 (3): pp. 368-375.
Iron Mountain Mine Trustee Council (2002). Final Restoration Plan for Natural Resource Injuries From Iron Mountain Mine, NOAA.
Keith, D. C., D. D. Runnells, K. J. Esposito, J. A. Chermak, D. B. Lew, S. R. Hannula, M. Watts and L. E. Hall (2001). "Geochemical models of the impact of acidic groundwater and evaporative sulfate salts on Boulder Creek and Iron Mountain, California” Applied Geochemistry 16 (7-8): pp. 947-961.
Merchant, M. (2004) "U.S. EPA, California and Shasta County officials celebrate the completion of the Slickrock Creek Retention Reservoir." Region 9: News Releases Volume , DOI:
NOAA. (1989). "Iron Mountain Mine Redding, California Region 9." from http://response.restoration.noaa.gov/book_shelf/170_IronMtn.pdf.
NOAA Central Library. (2002). "Damage Assessment Restoration Program (DARP) Iron Mountain Mine - General Images." NOAA Photo Library .
Nordstrom, D. K. and C. N. Alpers (1998). Negative pH, efflorescent mineralogy, and consequence for environmental restoration at the Iron Mountain Superfund site, California . National Academy of Sciences colloquium "Geology, Mineralogy, and Human Welfare", Irvine, California, Proceedings of the National Academy of Sciences of the United States of America.
Nordstrom, D. K., C. N. Alpers, C. J. Ptacek and D. W. Blowes (1999). "Negative pH and extremely acidic mine waters from Iron Mountain, California." Environ. Sci. Technol 34 (2): 254-258.
Sugarek, R. (2005). Iron Mountain Mine, United States Environmental Protection Agency.
USGS. (2005). "Remediating some of the world's most acidic waters at the Iron Mountain Superfund site - a tough challenge for scientists." Toxic Substances Hydrology Program , from http://toxics.usgs.gov/topics/rem_act/iron_mountain.html.
Iron Mountain Mine
Redding , California
Region 9
CAD980498612
Site Exposure Potential
Iron Mountain Mine is 14.5 km northwest of Redding , California in the foothills of the
Trinity Mountains , in the northwest Sacramento Valley (Figure 1). Iron Mountain Mine is
the southernmost mine in the West Shasta Mining District, an area of silver, gold, copper,
zinc, and iron pyrite mines. Open pit and subterranean mining activities were performed at
Iron Mountain Mine from the late 1800s to 1963. Acid mine drainage is produced at the
site as water passes through the sulfide ores and discharges through mine portals and
seeps. Secondary sources of acid mine drainage result from runoff through and over waste
rock piles, tailings piles, and other surface areas. In addition to acid, mine drainage at Iron
Mountain contains high concentrations of copper, zinc, and cadmium (CDM 1987).
NOAA Trust Habitats and Species in Site Vicinity
The closest aquatic habitat supporting NOAA trust resources is the Sacramento River below
the Keswick Dam. Below the dam, the river ranges from 120 to 180 meters wide and
averages three meters deep. The substrate consists of gravel, cobble, and bedrock. The
water quality of the Sacramento River below the dam is generally good (Helley 1989).
Chinook salmon, steelhead trout, and their habitats are the NOAA trust resources
potentially impacted by the Iron Mountain site. Four races of chinook salmon use the
Sacramento River and its tributaries: the fall, late fall, winter, and spring runs. Each run
is a genetically distinct stock that migrates into the river and reproduces within specific
time periods and locations. Salmon at various life stages are found in the river during
every month of the year. The spawning population of chinook salmon in the Sacramento
River has declined steadily since the 1950s: the population was estimated to be 408,000
fish in 1953, while only 27,000 were estimated to be present in 1983. Numerous fish
kills associated with drainage from Iron Mountain Mine have been documented on the
Sacramento River (EPA 1986b). In 1969, the most recent fish kill, an estimated 200,000
adult salmon were killed (CDM 1987).
Under the Endangered Species Act of 1973, the NOAA National Marine Fisheries Service
is currently reviewing the status of Sacramento River winter-run chinook to determine
whether listing it as a threatened species is warranted (CDM 1987). Recreational fishery
of winter-run chinook salmon in the Sacramento River below the Keswick Dam is closed
to protect the species (Helley 1989).
Restoration of anadromous fish runs above the Keswick Dam has been considered, but
was abandoned due to contamination from the Iron Mountain Mine (Helley 1989).
Response Category: Superfund Lead
Current Stage of Site Action: RI/FS activities are continuing at the site. A Record of
Decision for interim Remedial Action was signed October 3, 1986; a cap at the site is being
implemented and creek diversion is currently under design.
EPA Site Manager
Rick Sugarek 415-974-8230
NOAA Coastal Resource Coordinator
Chip Demarest 415-974-8509
References
CDM. 1987. Draft Final Report Iron Mountain Mine Endangerment Assessment.
December 4, 1987. San Francisco : U.S. Environmental Protection Agency, Region 9.
EPA. 1986a. Quality Criteria for Water. Washington , D.C. : Office of Water Regulations
and Standards, Criteria and Standards Division. EPA 440/5-86-001.
EPA. 1986b. Record of Decision - Iron Mountain Mine, Redding , CA. San Francisco :
U.S. Environmental Protection Agency, Region 9.
Helley, T., fishery biologist, California Department of Fish and Game, Napa , California ,
personal communication, January 13, 1989.
Under Executive Order 13148, revised April 26, 2000 (65 FR 24599), all Federal facilities are required to comply with the provisions set forth in section 313 of EPCRA and section 6607 of the PPA. Federal facilities are required to comply with those provisions without regard to SIC or NAICS delineations.
Potentially affected categories and entities may include, but are not limited to:
Category
Examples of potentially affected entities
Industry ........................................ Federal Government ...................
SIC major group codes 10 (except 1011, 1081, and 1094), 12 (except 1241), or 20 through 39; industry codes 4911, 4931, or 4939 (limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce); or 4953 (limited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 et. seq. ), or 5169, or 5171, or 7389 (limited to facilities primarily engaged in solvent recovery services on a contract or fee basis). Federal facilities.
This table is not intended to be entities not listed in the table could also applicability criteria in part 372, subpart exhaustive, but rather provides a guide be affected. To determine whether your B of Title 40 of the Code of Federal for readers regarding entities likely to be facility is affected by this action, you Regulations. If you have any questions affected by this action. Other types of should carefully examine the regarding the applicability of this action
Brief History of EPA's Debarment Program
EPA's Debarment Program officially began in 1982 in response to Congressional oversight hearings that revealed Government-wide inadequacies in the management of Federal contracts and assistance with regard to waste, fraud, abuse and poor performance. On the basis of those hearings, and subsequent task force studies conducted by the President's Council on Integrity and Efficiency (PCIE), the Office of Management and Budget developed a comprehensive Government-wide debarment and suspension system for all Federal contracts, assistance, loans and benefits extended by Executive-Branch agencies.
EPA, as an Executive Branch agency, is part of that Government-wide system. In addition to its discretionary authority to debar pursuant the above, it also has mandatory debarment authority under Section 306 of the Clean Air Act, and Section 508 of the Clean Water Act.
As a result of the historical development of the Agency, these various debarment authorities were, in 1982, located in three locations. The statutory debarment was initially administered by various offices, but eventually was delegated to the Office of Enforcement (OE). Procurement debarment was administered by the then, Procurement and Contracts Management Division, while assistance debarment was administered by the Grants Administration Division.
In 1982, the Office of Administration and Resource Management (OARM) consolidated all EPA discretionary procurement and assistance debarment authority into the Grants Administration Division. In the early 1990s, the Agency further consolidated its debarment authority when OARM assumed the responsibilities for statutory debarment from OE. Today, all EPA discretionary and statutory debarment authority is delegated to the Assistant Administrator for OARM and carried out by the Office of Grants and Debarment (OGD).
The EPA Debarring Official is the Agency's national program manager. As such the EPA Debarring Official establishes the Agency's debarment policy, and is the decision official for all suspension and debarment actions before the Agency.
The Suspension and Debarment Division (SDD) interacts with EPA program offices, the Office of the Inspector General, Department of Justice, and with Federal, state and local agencies, to develop matters for consideration by the EPA Debarring Official.
2010-0021996 Shasta County Court
http://www.calattorneysfees.com/cases_private_attorney_general_ccp_10215/
Published on Sunday, October 10, 2010 by Forbes/CNN
Regulation Of Surface Water Discharges From Abandoned Mines
(Water Board "abandoned mine final")
Iron Mountain Mine
An example of an extreme application of treatment technology failing to meet
prescribed numeric effluent limits, is the large Iron Mountain Mine complex (IMM)
northwest of Redding. Prior to remedial activities, the mine discharged
approximately 650 pounds of copper and 1,800 pounds of zinc daily into the
Sacramento River. The site was placed on the National Priorities List and
remedial activities implemented by the U.S. EPA under the Federal Superfund
program. Remedial activities have included surface water diversions, waste rock
disposal, and treatment of the AMD. The treatment facility constructed by U.S.
EPA uses lime neutralization to precipitate copper, cadmium, and zinc from
solution and is considered to be the Best Available Technology. Over 200 million
dollars has been spent on the site with an additional 700 million available for
future operations of the AMD conveyance and treatment system. The treatment
plant cost over 30 million to build and O&M costs range between 5 and 7 million
dollars per year depending on precipitation which affects the generation of AMD.
The treatment system is designed to treat a maximum of 8,000 gpm during
extreme storm periods. Unless some other technology is developed in the future,
treatment will be required for an estimated 2,000 years. Overall discharges of
metals (copper, zinc and cadmium) to the Sacramento River have been reduced
by 95 percent. Despite these enormous efforts, the effluent from the treatment
plant cannot meet water quality objectives for cadmium and zinc, or objectives for
sulfates, aluminum, iron and other metals. Further, the streams adjacent or
immediately downstream from IMM, including lower Spring Creek and Bolder
Creek, will never support a typical aquatic community due to the contribution of
non-point sources that cannot be controlled. Any aquatic organisms that do live
in these watercourses are limited to algae and invertebrates that are adapted to a
low pH and high metal environment. Fish will never exist in these streams.Owners of Abandoned Mines Are Not Being Treated Equally
The SIP and the requirement for numeric effluent limits does not allow for a level
playing field for all owners of abandoned mines. Similar to the U.S EPA when
dealing with Superfund sites like IMM, Federal Land Agencies (Forest Service and Bureau of Land Management) claim they can also remediate their sites
under the Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA). Under CERCLA, Superfund sites are not required to get an
NPDES permit or any other permit from the Regional Water Board. In place,
they can request the State provide them with applicable, relevant and appropriate
requirements (ARARs). While the SIP and the Basin Plan are considered
ARARs, if the U.S. EPA under Superfund, believes it is not practical to achieve,
they can waive the ARAR on an interim basis, a relatively easy process. A
permanent waiver can also be sought. Even where the ARAR is waived, the
cleanup can incorporate the BMP approach described above.
Federal landowners claim the same exemption applies to all federal facilities in
all cases, whether or not the sites are on the NPL (Superfund list) and whether or
not any remediation is undergoing or actually planned.2 Thus, many years may
pass before a Federal Agency will even begin to address a site. Enforcement
against a Federal Agency for failing to initiate or complete remedial activities at a
site under these conditions is resource-intensive, legally complex and time
consuming.
In contrast, a private owner of an abandoned mine discharging AMD to surface
waters may be held to the strict standards of the SIP, including impossible to
meet time schedules and numeric effluent limits. If a numeric effluent limit is
exceeded, then MMPs are required, rapidly draining the financial resources of
the private owner attempting to comply with what may be an impossible task.
PRIVY COUNCIL
In re PIRACY JURE GENTIUM.
SPECIAL REFERENCE.
Also reported as: [1934] A.C. 586
COUNSEL: Sir Thomas Inskip A.-G. (with him Wilfrid Lewis) appeared in support of the view that actual robbery was not an essential element. Sir Leslie Scott K.C. (with him Kenelm Preedy), representing the Secretary of State for the Colonies
SOLICITOR: Treasury Solicitor.
JUDGES: Viscount Sankey L.C., Lord Atkin, Lord Tomlin, Lord Macmillan, and Lord Wright.
DATES: 1934. July 2, 3, 5, 26.
International Law – Piracy jure gentium – Actual Robbery not an essential element.
Actual robbery is not an essential element of the crime of piracy jure gentium. A frustrated attempt to commit a piratical robbery is equally piracy jure gentium.
SPECIAL REFERENCE.
An Order in Council, made under s. 4 of the Judicial Committee Act, 1833, and dated November 10, 1933, provided: “The question whether actual robbery is an essential element of the crime of piracy jure gentium, or whether a frustrated attempt to commit a piratical robbery is not equally piracy jure gentium, is referred to the Judicial Committee for their hearing and consideration.”
The circumstances in which the Order was made appear from the report of their Lordships.
1934. July 2, 3, 5. Sir Thomas Inskip A.-G. (with him Wilfrid Lewis) appeared in support of the view that actual robbery was not an essential element. [*587]
Sir Leslie Scott K.C. (with him Kenelm Preedy), representing the Secretary of State for the Colonies, contended to the contrary.
In addition to cases mentioned in the report of their Lordships, counsel referred to R. v. Bonnet (1); Reg. v. McGregor (2); In re Tivnan (3); Att.-Gen. for Hong Kong v. Kwok-a-Sing (4); Republic of Bolivia v. Indemnity Mutual Marine Assurance Co., Ld. (5); and, as to the jurisdiction of the Court of the Admiral, to Reg. v. Keyn (6); also to Oppenheim's International Law, 4th ed, vol. i., p. 506, and O. E. D. s.v. “Pirate.”
Lord Macmillan referred to Dole v. New England Mutual Insurance Co. (7); and, as to the relation between international law and municipal law, to Mortensen v. Peters (8) (per Lord Dunedin), on which question counsel referred to The Zamora .(9)
July 26. The report of their Lordships was delivered by
VISCOUNT SANKEY L.C. On January 4, 1931, on the high seas, a number of armed Chinese nationals were cruising in two Chinese junks. They pursued and attacked a cargo junk which was also a Chinese vessel. The master of the cargo junk attempted to escape, and a chase ensued during which the pursuers came within 200 yards of the cargo junk. The chase continued for over half an hour, during which shots were fired by the attacking party, and while it was still proceeding, the steamship Hang Sang approached and subsequently also the steamship Shui Chow. The officers in command of these merchant vessels intervened and through their agency, the pursuers were eventually taken in charge by the Commander of H. M. S. Somme, which had arrived in consequence of a report made by wireless. They were brought as prisoners to Hong Kong and indicted for the crime of piracy. The jury found them guilty subject to the following
(1) (1718) 15 St. Tri. col. 1231, 1234.
(2) (1844) 1 C. & K. 429.
(3) (1864) 5 B. & S. 645, 687.
(4) (1873) L. R. 5 P. C. 179.
(5) [1909] 1 K. B. 785, 796, 802.
(6) (1876) 2 Ex. D. 63.
(7) (1864) 2 Cliff. 394, 417, 418.
(8) (1906) 8 F. (J.) 93, 101.
(9) [1916] 2 A. C. 77, 91, 92. [*588]
question of law: “Whether an accused person may be convicted of piracy in circumstances where no robbery has occurred.” The Full Court of Hong Kong on further consideration came to the conclusion that robbery was necessary be support a conviction of piracy and in the result the accused were acquitted.
The decision of the Hong Kong Court was final and the present proceedings are in no sense an appeal from that Court, whose judgment stands.
Upon November 10, 1933, His Majesty in Council made the following Order: “The question whether actual robbery is an essential element of the crime of piracy jure gentium, or whether a frustrated attempt to commit a piratical robbery is not equally piracy jure gentium, is referred to the Judicial Committee for their hearing and consideration.”
It is to this question that their Lordships have applied themselves, and they think it will be convenient to give their answer at once and then to make some further observations upon the matter.
The answer is as follows: “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.”
In considering such a question, the Board is permitted to consult and act upon a wider range of authority than that which it examines when the question for determination is one of municipal law only. The sources from which international law is derived include treaties between various States, State papers, municipal Acts of Parliament and the decisions of municipal Courts and last, but not least, opinions of jurisconsults or text-book writers. It is a process of inductive reasoning. It must be remembered that in the strict sense international law still has no legislature, no executive and no judiciary, though in a certain sense there is now an international judiciary in the Hague Tribunal and attempts are being made by the League of Nations to draw up codes of international law. Speaking generally, in embarking upon international law, their Lordships are to a great extent [*589] in the realm of opinion, and in estimating the value of opinion it is permissible not only to seek a consensus of views, but to select what appear to be the better views upon the question.
With regard to crimes as defined by international law, that law has no means of trying or punishing them. The recognition of them as constituting crimes, and the trial and punishment of the criminals, are left to the municipal law of each country. But whereas according to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes committed on its terra firma or territorial waters or its own ships, and to crimes by its own nationals wherever committed, it is also recognized as extending to piracy committed on the high seas by any national on any ship, because a person guilty of such piracy has placed himself beyond the protection of any State. He is no longer a national, but “hostis humani generis” and as such he is justiciable by any State anywhere: Grotius (1583-1645) “De Jure Belli ac Pacis,” vol. 2, cap. 20, § 40.
Their Lordships have been referred to a very large number of Acts of Parliament, decided cases and opinions of jurisconsults or text-book writers, some of which lend colour to the contention that robbery is a necessary ingredient of piracy, others to the opposite contention. Their Lordships do not propose to comment on an of them, but it will be convenient to begin the present discussion by referring to the Act of Henry VIII., cap. 15, in the year 1536, which was entitled “An Act for the punishment of pirates and robbers of the sea.” Before that Act, the jurisdiction over pirates was exercised by the High Court of Admiralty in England and that Court administered the civil law. The civilians, however, had found themselves handicapped by some of their canons of procedure, as for example, that a man could not be found guilty unless he either confessed or was proved guilty by two witnesses. The Act recites the deficiency of the Admiralty jurisdiction in the trial of offences according to the civil law and after referring to “all treasons, felonies, robberies, murders and confederacies hereafter to be committed in or [*590] upon the sea, etc.” (it is not necessary to set out the whole of it), proceeds to enact that all offences committed at sea, etc., shall be tried according to the common law under the King's Commission, to be directed to the Admiralty and others within the realm.
Many of the doubts and difficulties inherent in considering subsequent definitions of piracy are probably due to a misapprehension of that Act. It has been thought, for example, that nothing could be piracy unless it amounted to a felony as distinguished from a misdemeanour, and that, as an attempt to commit a crime was only a disdemeanour at common law, an attempt to commit piracy could not constitute the crime of piracy, because piracy is a felony as distinguished from a misdemeanour. This mistaken idea proceeds upon a misapprehension of the Act. In Coke's (1552-1634) Institutes, part 3, ed. 1809, after a discussion on felonies, robberies, murders and confederacies committed in or upon the sea, it is stated (p. 112) that the statute did not alter the offence of piracy or make the offence felony, but “leaveth the offence as it was before this Act, viz., felony only by the civil law, but giveth a mean of triall by the common law and inflicteth such pains of death as if they had been attainted of any felony etc. done upon the land. But yet the offence is not altered, for in the indictment upon this statute, the offence must be alleged upon the sea; so as this act inflicteth punishment for that which is a felony by the civill law, and no felony whereof the common law taketh knowledge.”
The conception of piracy according to the civil law is expounded by Molloy (1646-1690) “De Jure Maritimo et Navali” or “A Treatise of affairs Maritime and of Commerce.” That book was first published in 1676 and the ninth edition in 1769. Chapter 4 is headed “Of Piracy.” The author defines a pirate as “a sea thief or hostis humani generis who to enrich himself either by surprize or open face sets upon merchants or other traders by sea.” He clearly does not regard piracy as necessarily involving successful robbery or as being inconsistent with an unsuccessful attempt. Thus in para. xiii. he says: “So likewise if a ship shall be assaulted [*591] by pirates and in the attempt the pirates shall be overcome if the captors bring them to the next port and the judge openly rejects the trial, or the captain cannot wait for the judge without certain peril and loss, justice may be done on them by the law of nature, and the same may be there executed by the captors.” Again in para. 14 he puts the case where “a pirate at sea assaults a ship but by force is prevented from entering her” and goes on to distinguish the rule as to accessories at the common law and by the law marine. A somewhat similar definition of a pirate is given by the almost contemporary Italian jurist, Casaregis, who wrote in 1670, and says (“De Commercio,” LXIV 4): “Proprie pirata ille dicitur qui sine patentibus alicujus principis ex propria tantum, ac privata auctoritate per mare discurrit depraedandi causa.” But in certain trials for piracy held in England under the Act of Henry VIII., a narrower definition of piracy seems to have been adopted.
Thus in 1696, the trial R. v. Joseph Dawson (1) took place. The prisoners were indicted for “feloniously and piratically taking and carrying away from persons unknown a certain ship called the Gunsway …. upon the high seas ten leagues from the Cape St. Johns near Surat in the East Indies.” The Court was comprised of Sir Charles Hedges, then judge in the High Court of Admiralty, Lord Chief Justice Holt, Lord Chief Justice Treby, Lord Chief Baron Ward and a number of other judges. Sir Charles Hedges gave the charge to the grand jury. In it he said “now piracy is only a sea-term for robbery, piracy being a robbery committed within the jurisdiction of the Admiralty. If any man be assaulted within that jurisdiction, and his ship or goods violently taken away without legal authority, this is robbery and piracy.”
Dawson's case was described as the sheet-anchor for those who contend that robbery is an ingredient of piracy. It must be remembered, however, that every case must be read secundum subjectam materiam and must be held to refer to the facts under dispute. In Dawson's case, the prisoners had undoubtedly committed robbery in their piratical expeditions. The only function of the Chief Judge was to
(1) (1696) 13 St. Tr. col. 451. [*592]
charge the grand jury and in fact to say to them: “Gentlemen, if you find the prisoners have done these things, then you ought to return a true bill against them.” The same criticism applies to certain charges given to grand juries by Sir Leoline Jenkins (1623-1685) judge of the Admiralty Court (1685): see “Life of Leoline Jenkins,” vol. 1, p. 94. It cannot be suggested that these learned judges were purporting to give an exhaustive definition of piracy, and a moment's reflection will show that a definition of piracy as sea robbery is both too narrow and too wide. Take one example only. Assume a modern liner with its crew and passengers, say of several thousand aboard, under its national flag, and suppose one passenger robbed another. It would be impossible to contend that such a robbery on the high seas was piracy and that the passenger in question had committed an act of piracy when he robbed his fellow passenger, and was therefore liable to the penalty of death. “That is too wide a definition which would embrace all acts of plunder and violence in degree sufficient to constitute piracy simply because done on the high seas. As every crime can be committed at sea, piracy might thus be extended to the whole criminal code. If an act of robbery or murder were committed upon one of the passengers or crew by another in a vessel at sea, the vessel being at the time and continuing under lawful authority and the offender were secured and confined by the master of the vessel to be taken home for trial, this state of things would not authorise seizure and trial by any nation that chose to interfere or within whose limits the offender might afterwards be found”: Dana's Wheaton, p. 193, note 83, quoted in Moore's Digest of International Law (Washington, 1906) Article “Piracy,” p. 953.
But over and above that we are not now in the year 1696, we are now in the year 1934. International law was not crystallized in the 17th century, but is a living and expanding code. In his treatise on international law, the English text-book writer Hall (1835-94) says at p. 25 of his preface to the third edition (1889)(1): “Looking back over the last couple of
(1) Reprinted in 8th ed. 1924. [*593]
centuries we see international law at the close of each fifty years in a more solid position than that which it occupied at the beginning of the period. Progressively it has taken firmer hold, it has extended its sphere of operation, it has ceased to trouble itself about trivial formalities, it has more and more dared to grapple in detail with the fundamental facts in the relations of States. The area within which it reigns beyond dispute has in that time been infinitely enlarged, and it has been greatly enlarged within the memory of living man.” Again another example may be given. A body of international law is growing up with regard to aerial warfare and aerial transport, of which Sir Charles Hedges in 1696 could have had no possible idea.
A definition of piracy which appears to limit the term to robbery on the high seas was put forward by that eminent authority Hale (1609-76), in his “Pleas of the Crown” ed. 1737, cap. 27, p. 305, where he states, “it is out of the question that piracy by the statute is robbery.” It is not surprising that subsequent definitions proceed on these lines.
Hawkins (1673-1746) “Pleas of the Crown” (1716), 7th ed., 1795, vol. 1, defines a pirate rather differently, at p. 267(1), “a pirate is one who, to enrich himself, either by surprise or open force, sets upon merchants or others trading by sea, to spoil them of their goods or treasure.” This does not necessarily import robbing.
Blackstone (1726-80), book IV., p. 71, states, “the offence of piracy, by common law, consists in committing those acts of robbery and depredation upon the high seas which, if committed upon land, would have amounted to felony there.”
East's “Pleas of the Crown” (1803), vol. 2, p. 796, defines the offence of piracy by common law as “committing those acts of robbery and depredation upon the high seas which, if committed upon land, would have amounted to felony there.” This definition would exclude an attempt at piracy, because an attempt to commit a crime is, with certain exceptions, not a felony but a misdemeanour.
Their Lordships were also referred to Scottish text-book
(1) 8th ed. 1824, p. 251. [*594]
writers, including Hume (1757-1838) “Scottish Criminal Law” (1797), and Alison (1792-1867) “Scottish Criminal Law” (1832), where similar definitions are to be found. It is sufficient to say with regard to these English and Scottish writers that, as was to be expected, they followed in some cases almost verbatim the early concept, and the criticism upon them is: (1.) that it is obvious that their definitions were not exhaustive; (2.) that it is equally obvious that there appears to be from time to time a widening of the definition so as to include facts previously not foreseen; (3.) that they may have overlooked the explanation of the statute of Henry VIII. as given by Coke and quoted above, and have thought of piracy as felony according to common law whereas it was felony by civil law.
In “Archbold's Criminal Pleading” (28th ed., 1931) will be found a full conspectus of the various statutes on piracy which have been from time to time passed in this country defining the offence in various ways and creating new forms of offence as coming within the general term piracy. These, however, are immaterial for the purpose of the case, because it must always be remembered that the matter under present discussion is not what is piracy under any municipal Act of any particular country, but what is piracy jure gentium. When it is sought to be contended, as it was in this case, that armed men sailing the seas on board a vessel, without any commission from any State, could attack and kill everybody on board another vessel, sailing under a national flag, without committing the crime of piracy unless they stole, say, an article worth sixpence, their Lordships are almost tempted to say that a little common sense is a valuable quality in the interpretation of international law. This appears to be recognized in the “Digest of the Criminal Law,” by the distinguished writer, Sir James Fitzjames Stephen (1829-94), 7th ed., 1926, p. 102. At the end of the article on piracy it is stated that “it is doubtful whether persons cruising in armed vessels with intent to commit piracies, are pirates or not,” but in a significant footnote, it is added that “the doubt expressed at the end of the article is founded on the [*595] absence of any expressed authority for the affirmative of the proposition and on the absurdity of the negative.”
The Oxford English Dictionary (1909) defines a pirate as “one who robs and plunders on the sea, navigable rivers, etc., or cruises about for that purpose.”
It may now be convenient to turn to American authorities, and first of all Kent (1826). In his Commentaries, I. 183, he calls piracy “robbery, or a forcible depredation on the high seas, without lawful authority, and done animo furandi, and in the spirit and intention of universal hostility.”
Wheaton writing in 1836, Elements Pt. II., cap. 2, para. 15, defines piracy as being the offence of “depredating on the seas, without being authorized by any foreign State, or With commissions from different sovereigns at war with each other.” This enshrines a concept which had prevailed from earliest, times that one of the main ingredients of piracy is an act performed by a person sailing the high seas without the authority or commission of any State. This has been frequently applied in cases where insurgents had taken possession of a vessel belonging to their own country and the question arose what authority they had behind them. See the American case The Ambrose Light .(1) Another instance is the case of the Huascar. In 1877, a revolutionary outbreak occurred at Callao in Peru and the ironclad Huascar, which had been seized by the insurgents, put to sea, stopped British steamers, took a supply of coal from one of them without payment and forcibly took two Peruvian officials from on board another where they were passengers. The British Admiral justly considered the Huascar was a pirate, and attacked her. See Parl. Papers, Peru, No. 1, 1877.
In Moore's “Digest of International Law” (1906), vol. 2, p. 953, a pirate is defined as “one who, without legal authority from any State, attacks a ship with intention to appropriate what belongs to it. The pirate is a sea brigand. He has no right to any flag and is justiciable by all.”
Time fails to deal with all the references to the works of
(1) (1885) 25 Fed. Rep. 408, 435. [*596]
foreign jurists to which their Lordships' attention was directed. It will be sufficient to select a few examples.
Ortolan (1802-1873), a French jurist, and professor at the University of Paris, says (Dip. de la Mer, book 2, ch. 11) “Les pirates sont ceux, qui courrent les mers de leur propre autorité, pour y commettre des actes de déprédation pillant à main armée les navires de toutes les nations.”
Bluntschli (1808-81), a Swiss jurist and a professor at Munich and Heidelberg, published, in 1868, “Le Droit International Codifié,” which, in art. 343, lays down: “Sont considérés comme pirates les navires qui, sans l'autorisation d'une puissance belligérante, cherchent à s'emparer des personnes, à faire du butin (navires et marchandises), ou à anéantir dans un but criminel les biens d'autrui.”
Calvo (1824-1906), an Argentine jurist and Argentine Minister at Berlin, Le Droit International, 3rd ed., vol. 2, p. 285, para. 1134, defines piracy: “Tout vol ou pillage d'un navire ami, toute déprédation, tout acte de violence commis à main armée en pleine mer contre la personne ou les biens d'un étranger, soit en temps de paix, soit en temps de guerre.”
An American case strongly relied upon by those who contend that robbery is an essential ingredient of piracy, is that of the United States v. Smith . (1) Story J. delivered the opinion of the Court and there states “whatever may be the diversity of definitions in other respects, all writers concur in holding that robbery or forcible depredations upon the sea, animo furandi, is piracy.” He would be a bold lawyer to dispute the authority of so great a jurist, but the criticism upon that statement is that the learned judge was considering a case where the prisoners charged had possessed themselves of the vessel, the Irresistible, and had plundered and robbed a Spanish vessel. There was no doubt about the robbery, and though the definition is unimpeachable as far as it goes, it was applied to the facts under consideration and cannot be held to be an exhaustive definition including all acts of piracy. The case, however, is exceptionally valuable because from p. 163-180 of the report it tabulates the opinions of
(1) (1820) 5 Wheat. 153, 161. [*597]
most of the writers on international law up to that time. But with all deference to so great an authority, the remark must be applied to Story J. in 1820 that has already been applied to Sir Charles Hedges in 1696, which is that international law has not become a crystallized code at any time, but is a living and expanding branch of the law.
In a later American decision, United States v. The Malek Adhel (1), “if he wilfully sinks or destroys an innocent merchant ship, without any other object than to gratify his lawless appetite for mischief, it is just as much a piratical aggression, in the sense of the law of nations, and of the Act of Congress, as if he did it solely and exclusively for the sake of plunder, lucri causa. The law looks to it as an act of hostility, and being committed by a vessel not commissioned and engaged in lawful warfare, it treats it as the act of a pirate, and of one who is emphatically hostis humani generis.”
Having thus referred to the two cases, Dawson (1696) and Smith (1820), which are typical of one side of the question, their Lordships will briefly refer to two others from which the opposite conclusion is to be gathered.
It will be observed that both of them are more recent. The first is the decision in the case of the Serhassan Pirates (2), decided in the English High Court of Admiralty by that distinguished judge, Dr. Lushington (1782-1873), in 1845. It was on an application by certain officers for bounty which, under the statute 6 Geo. 4, c. 49, was given to persons who captured pirates, and the learned judge said (it is not necessary to detail all the facts of the case for the purpose of the present opinion) “the question which I have to determine is whether or not the attack which was made upon the British pinnance and the two other boats constituted an act of piracy on the part of these prahns, so as to bring the persons who were on board within the legal denomination of pirates.” He held it was an act of piracy and awarded the statutory bounty. It is true that that was a decision under the special statute under which the bounties were claimed, but it will be noted that there was no robbery in that case; what happened was that
(1) (1844) 2 How. 210, 232.
(2) (1845) 2 W. Rob. 354. [*598]
the pirates attacked, but were themselves beaten off and captured. A similar comment may be made on the case in 1853 of The Magellan Pirates (1), where Dr. Lushington said: “it was never, so far as I am able to find, deemed necessary to inquire whether parties so convicted of these crimes (i.e., robbery and murder), had intended to rob on the high seas, or to murder on the high seas indiscriminately.”
Finally, there is the American case The Ambrose Light (2) where it was decided by a Federal Court that an armed ship must have the authority of a State behind it, and if it has not got such an authority, it is a pirate even though no act of robbery has been committed by it. It is true that the vessel in question was subsequently released on the ground that the Secretary of State had by implication recognized a state of war, but the value of the case lies in the decision of the Court.
Their Lordships have dealt with two decisions by Dr. Lushington. It may here be not inappropriate to refer to another great English Admiralty judge and jurisconsult, Sir Robert Phillimore (1810-85). In his International Law, 3rd ed., vol. 1, 1879, he states: “piracy is an assault upon vessels navigated on the high seas committed animo furandi whether robbery or forcible depredation be effected or not and whether or not it be accompanied by murder or personal injury.”
Lastly, Hall, to whose work on international law reference has already been made, states, on p. 314 of the 8th ed., 1924, “the various acts which are recognized or alleged to be piratical may be classed as follows: robbery or attempt at robbery of a vessel, by force or intimidation, either by way of attack from without, or by way of revolt of the crew and conversion of the vessel and cargo to their own use.” Possibly the definition of piracy which comes nearest to accuracy coupled with brevity is that given by Kenny (1847-1930), “Outlines of Criminal Law,” 14th ed., p. 332, where he says piracy is “any armed violence at sea which is not a lawful act of war,” although even this would include a shooting affray between two passengers on a liner which could not be held to be piracy. It would, however, correctly include those acts which, as far
(1) (1853) 1 Spinks E. & A. 81.
(2) 25 Fed. Rep. 408. [*599]
as their Lordships know, have always been held to be piracy, that is, where the crew or passengers of a vessel on the high seas rise against the captain and officers and seek by armed force to seize the ship. Hall put such a case in the passage just cited; it is clear from his words that it is not less a case of piracy because the attempt fails.
Before leaving the authorities, it is useful to refer to a most valuable treatise on the subject of piracy contained in “The Research into International Law by the Harvard Law School,” published at Cambridge, Mass., in 1932. In it, nearly all the cases, nearly all the statutes, and nearly all the opinions are set out on pp. 749 to 1013.
In 1926 the subject of piracy engaged the attention of the League of Nations, who scheduled it as one of a number of subjects, the regulation of which by international agreement seemed to be desirable and realizable at the present moment. Consequently, they appointed a sub-committee of their committee of experts for the progressive codification of international law and requested the sub-committee to prepare a report upon the question. An account of the proceedings is contained in the League of Nations document, C 196, M 70, 1927 V. The sub-committee was presided over by the Japanese jurist Mr. Matsuda, the Japanese Ambassador in Rome, and in their report at p. 116, they state: “according to international law, piracy consists in sailing the seas for private ends without authorization from the government of any State with the object of committing depredations upon property or acts of violence against persons.” The report was submitted to a number of nations and an analysis of their replies will be found at p. 273 of the League of Nations document. A number of States recognized the possibility and desirability of an international convention on the question. The replies of Spain, p. 154; of Greece, p. 168; and especially of Roumania, p. 208, deal at some length with the definition of piracy. Roumania adds, p. 208: “Mr. Matsuda maintains in his report that it is not necessary to premise explicitly the existence of a desire for gain, because the desire for gain is contained in the larger qualification ‘for private ends.' In [*600] our view, the act of taking for private ends does not necessarily mean that the attack is inspired by the desire for gain. It is quite possible to attack without authorization from any State and for private ends, not with a desire for gain but for vengeance or for anarchistic or other ends.” The above definition does not in terms deal with an armed rising of the crew or passengers with the object of seizing the ship on the high seas.
However that may be, their Lordships do not themselves propose to hazard a definition of piracy. They remember the words of M. Portalis, one of Napoleon's commissioners, who said: “We have guarded against the dangerous ambition of wishing to regulate and to foresee everything. …. A new question springs up. Then how is it to be decided? To this question it is replied that the office of the law is to fix by enlarged rules the general maxims of right and wrong, to establish firm principles fruitful in consequences, and not to descend to the detail of all questions which may arise upon each particular topic.” (Quoted by Halsbury L.C. in Halsbury's Laws of England, Introduction, p. ccxi.)
A careful examination of the subject shows a gradual widening of the earlier definition of piracy to bring it from time to time more in consonance with situations either not thought of or not in existence when the older jurisconsults were expressing their opinions.
All that their Lordships propose to do is to answer the question put to them, and having examined all the various cases, all the various statutes and all the opinions of the various jurisconsults cited to them, they have come to the conclusion that the better view and the proper answer to give to the question addressed to them is that stated at the beginning – namely, that actual robbery is not an essential element in the crime of piracy jure gentium, and that a frustrated attempt to commit piratical robbery is equally piracy jure gentium.
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