"Pardon me?" (...one directed more towards the plaintiffs. )

" I think that I've been de facto discharged?" Mr. William Logan, esq.

Revulsion Is No Basis For Lawyer to Quit Defense, Panel Rules
Mark Hamblett
New York Law Journal
June 17, 2011
An attorney's revulsion did not constitute a "compelling" reason for his attempt to withdraw as counsel, a federal appeals court ruled yesterday.

Mercury Rule 20 Years Overdue
While in the hot seat for an hour and 45 minutes Wednesday, EPA administrator Lisa Jackson patiently emphasized that many power plants have already met the standards laid out in the mercury rule because some states are ahead of the curve. And she added that the pollution control technologies are proven and widely available.
EPA estimates this rule will provide at least $120 billion in health benefits annually by avoiding: 14,000 to 36,000 premature deaths; 240,000 cases of aggravated asthma; 440,000 cases of upper and lower respiratory symptoms; 26,000 hospital and emergency room visits and 1.9 million days of work or school missed due to illness.
"When it becomes final, the cleanup rule that the EPA is putting forward today will save lives, protect the health of millions of Americans and finally bring about an action that is 20 years overdue," American Lung Association president and chief executive officer Charles Connor said back when the rule was rolled out. "This must happen."
Boxer has absolutely no beef with that declaration. However, recognizing that the friction in her hearing room was too mighty for even her impassioned pleas to overcome, she appealed to Jackson to fill the peacemaker role.
Early on, Boxer smiled as she told Jackson she looked forward to hearing testimony that could "bring us all together."
"That's a big order," Jackson deadpanned before launching into her prepared remarks.

The Right to have Guns

by Lex Green
http://www.electlex.com
5/1/2010
Samuel Adams talked about the three great rights, Life, Liberty and Property, "together with the Right to support and defend them in the best manner they can." There is no question that defense of our Rights is itself a Right. Yet so many people are determined to remove our Rights and taking away our guns is the first step. In fact, any regulation of guns effectively removes deterrence from our arsenal of self defense weapons. Once the right to self defense is gone, we have no other rights.
How do we convince those who are determined to regulate guns that gun ownership is a right that should never be infringed? Let Supreme Court Justice Scalia address this for us through these two excerpts from D. C. v. Heller.
First: "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... ... these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body.
Second: "Shall not be infringed." The very text of the Second Amendment implicitly recognizes the pre-existence of the right [to keep and bear arms] and declares only that it "shall not be infringed."
The concept of a right that pre-exists the Constitution is not new, but is important for all of us to understand. The Second Amendment in the Bill of Rights does not give us a right that can then be regulated. It only recognizes that right and mandates to Congress, for all time, that this right "shall not be infringed." The threat of force may attempt to deprive us of our guns, but as Samuel Adams states so well:
"... it is the greatest absurdity to suppose it in the power ... of men ... to renounce their essential natural rights, or the means of preserving those rights when the great end of civil government from the very nature of its institution is for the support, protection and defense of those very rights... the right to freedom being the gift of God Almighty, it is not in the power of Man to alienate this gift, and voluntarily become a slave."

1. Operative Clause.
a. "Right of the People." The first salient feature of
the operative clause is that it codifies a "right of the people."
The unamended Constitution and the Bill of Rights
use the phrase "right of the people" two other times, in the
First Amendment's Assembly-and-Petition Clause and in
the Fourth Amendment's Search-and-Seizure Clause. The
Ninth Amendment uses very similar terminology ("The
enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by
the people"). All three of these instances unambiguously
refer to individual rights, not "collective" rights, or rights
that may be exercised only through participation in some
corporate body.5
in a context other than "rights"-the famous preamble
("We the people"), §2 of Article I (providing that "the people"
will choose members of the House), and the Tenth
Amendment (providing that those powers not given the
Federal Government remain with "the States" or "the
people"). Those provisions arguably refer to "the people"
acting collectively-but they deal with the exercise or
reservation of powers, not rights. Nowhere else in the
Constitution does a "right" attributed to "the people" refer
to anything other than an individual right.6
What is more, in all six other provisions of the Constitution
that mention "the people," the term unambiguously
refers to all members of the political community, not an
unspecified subset. As we said in United States v. Verdugo-
Urquidez, 494 U. S. 259, 265 (1990): (Scalia)

House Slashes Spending for Food Safety, Nutrition Programs

June 17, 2011

ABC News’ John R. Parkinson (@JRPabcDC) reports:

House Republicans narrowly passed a bill that makes significant cuts across the Department of Agriculture and related agencies that is being chided by Democrats for making steep cuts to food safety and child nutrition programs.

The measure narrowly passed on a vote of 217-203 Thursday, with 19 Republicans joining all House Democrats voting against the legislation, which makes a 21 percent cut to the FDA’s budget totaling $572 million below the president’s request -- including $285 million or 12 percent just this year.

Democrats, including Rep. John Dingell – the Dean of the House – slammed Republicans for voting for the bill, charging that these deep cuts are “indefensible” and will severely undermine food safety efforts and increase the risk of food-borne illnesses.

“At a time when 30 people have been grossly sickened and died in Germany and 3,000 have been sickened, we are cutting Food and Drug's enforcement budget,” Dingell, D-Mich., said on the floor Wednesday. “Every year in the United States, 3,000 Americans are killed with bad food, 128,000 are hospitalized, 48 million are made sick. We have imported food that is causing all manner of difficulty: bad peanuts with salmonella, bad mushrooms, E. coli in peppers, melamine in dairy products, salmonella in eggs, bad shellfish and fish from China.”

House Minority Leader Nancy Pelosi said that the bill also makes “foolish cuts” to nutrition programs for some of the most vulnerable Americans, including women, infants and children, or WIC, by about 10 percent – slashing $650 million from the program, decreasing funding levels from $6.73 billion this year to $6.05 billion.

“Usually, parents are saying to children, eat your vegetables, eat your dinner. Congress was saying to them, we are not going to provide food to our children, one in five of whom live in poverty in our country, many of whom go to sleep hungry,” Pelosi, D-Calif., told reporters at a news conference leading into the vote. “That you would cut feeding children as a way to reduce the deficit while you give tax cuts to Big Oil, corporations sending jobs overseas, and the wealthiest people in America I think makes the case of misplaced priorities in our budget.”

“This is all about values, and that is where we will try to find our common ground with our colleagues,” she added. “If we agree that we must invest in our children, their health, and education; if we agree that we must respect our seniors and their retirement; if we agree that we must create jobs and make investments and budget decisions that do not deter the growth of our economy but encourage it; if we agree that that is the way we must reduce the deficit; then we should be able to come to find common ground down here.”

In total, the legislation approves $125.5 billion in both discretionary and mandatory funding, a reduction of more than $7 billion from the president’s FY2012 request. The bill reduces discretionary spending by $2.7 billion from last year’s level – a cut of more than $5 billion from the President’s request.

The legislation now heads to the Senate, where sources say it is unlikely to pass in its current form.

“This bill answers the call from Americans to reduce government spending while still providing for critical programs that keep American agriculture competitive in a global economy. The funding in this bill will help our rural communities to thrive, provide daily nutrition to children and families across the country, and keep our food and drug supply safe,” House Appropriations Chairman Hal Rogers, R-Ky., said in a statement. “This legislation will also help to put the Department of Agriculture, the FDA, and other agencies back on a sustainable budget path that is accountable to the taxpayers of this country.”

Rep. Jack Kingston, the Agriculture subcommittee chairman, also praised the passage of the bill, noting that “as the Congress continues the battle to lower spending, cut waste and create jobs” lawmakers made tough votes in order to get the country on a fiscally sustainable path.

“This bill represents a reduction of 13.4 percent in discretionary funding and makes the tough choices necessary to reduce spending while keeping our bill’s basic missions of food production, food and drug safety, rural development and nutrition programs intact,” Kingston, R-Ga., said. “The legislation also provides for a review of bureaucratic, job-killing regulations and language to promote the competitiveness and vitality of American agriculture. And, where possible, the Committee has worked with the Agriculture Committee to identify and initiate major reforms for the upcoming Farm Bill.”

Reps. Michele Bachmann and Ron Paul – two candidates seeking the Republican nomination for president, voted against the bill.

The full list of the 19 Republicans voting against passage of the bill were:

Justin Amash (Michigan)
Michele Bachman (Minnesota)
Joe Barton (Texas)
Paul Broun (Georgia)
Michael Burgess (Texas)
John Campbell (California)
John Duncan (Tennessee)
Stephen Fincher (Tennessee)
Jeff Flake (Arizona)
Trent Franks (Arizona)
Morgan Griffith (Virginia)
Walter Jones (North Carolina)
Steve King (Iowa)
Tom McClintock (California)
Jeff Miller (Florida)
Kristi Noem (South Dakota)
Ron Paul (Texas)
Dana Rohrabacher (California)
?Dave Schweikert (Arizona)

Executive Order 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights
By the authority vested in me as President by the Constitution and laws of the United States of America, and in order to ensure that government actions are undertaken on a well-reasoned basis with due regard for fiscal accountability, for the financial impact of the obligations imposed on the Federal government by the Just Compensation Clause of the Fifth Amendment, and for the Constitution, it is hereby ordered as follows:
Section 1. Purpose. (a) The Fifth Amendment of the United States Constitution provides that private property shall not be taken for public use without just compensation. Government historically has used the formal exercise of the power of eminent domain, which provides orderly processes for paying just compensation, to acquire private property for public use.
Recent Supreme Court decisions, however, in reaffirming the fundamental protection of private property rights provided by the Fifth Amendment and in assessing the nature of governmental actions that have an impact on constitutionally protected property rights, have also reaffirmed that governmental actions that do not formally invoke the condemnation power, including regulations, may result in a taking for which just compensation is required.
(b) Responsible fiscal management and fundamental principles of good government require that government decision-makers evaluate carefully the effect of their administrative, regulatory, and legislative actions on constitutionally protected property rights. Executive departments and agencies should review their actions carefully to prevent unnecessary takings and should account in decision-making for those takings that are necessitated by statutory mandate.
(c) The purpose of this Order is to assist Federal departments and agencies in undertaking such reviews and in proposing, planning, and implementing actions with due regard for the constitutional protections provided by the Fifth Amendment and to reduce the risk of undue or inadvertent burdens on the public fisc resulting from lawful governmental action. In furtherance of the purpose of this Order, the Attorney General shall, consistent with the principles stated herein and in consultation with the Executive departments and agencies, promulgate Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings to which each Executive
department or agency shall refer in making the evaluations required by this Order or in otherwise taking any action that is the subject of this Order. The Guidelines shall be promulgated no later than May 1, 1988, and shall be disseminated to all units of each Executive department and agency no later than July 1, 1988. The Attorney General shall, as necessary, update these guidelines to reflect fundamental changes in takings law occurring as a result of Supreme Court decisions.
Sec. 2. Definitions. For the purpose of this Order: (a) "Policies that have takings implications" refers to Federal regulations, proposed Federal regulations, proposed Federal legislation, comments on proposed Federal legislation, or other Federal policy statements that, if implemented or enacted, could effect a taking, such as rules and regulations that propose or implement licensing, permitting, or other condition requirements or limitations on private property use, or that require dedications or exactions from owners of private property. "Policies that have takings implications" does not include:
(1) Actions abolishing regulations, discontinuing governmental programs, or modifying regulations in a manner that lessens interference with the use of private property; (2) Actions taken with respect to properties held in trust by the United States or in preparation for or during treaty negotiations with foreign nations;
(3) Law enforcement actions involving seizure, for violations of law, of property for forfeiture
or as evidence in criminal proceedings;
(4) Studies or similar efforts or planning activities;
(5) Communications between Federal agencies or departments and State or local land-use planning agencies regarding planned or proposed State or local actions regulating private property regardless of whether such communications are initiated by a Federal agency or department or are undertaken in response to an invitation by the State or local authority; (6) The placement of military facilities or military activities involving the use of Federal property alone; or
(7) Any military or foreign affairs functions (including procurement functions thereunder) but not including the U.S. Army Corps of Engineers civil works program. (b) Private property refers to all property protected by the Just Compensation Clause of the Fifth Amendment.
(c) "Actions" refers to proposed Federal regulations, proposed Federal legislation, comments on proposed Federal legislation, applications of Federal regulations to specific property, or Federal governmental actions physically invading or occupying private property, or other policy statements or actions related to Federal regulation or direct physical invasion or occupancy, but does not include:
(1) Actions in which the power of eminent domain is formally exercised;
(2) Actions taken with respect to properties held in trust by the United States or in preparation for or during treaty negotiations with foreign nations;
(3) Law enforcement actions involving seizure, for violations of law, of property for forfeiture or as evidence in criminal proceedings;
(4) Studies or similar efforts or planning activities;
(5) Communications between Federal agencies or departments and State or local land-use planning agencies regarding planned or proposed State or local actions regulating private property regardless of whether such communications are initiated by a Federal agency or department or are undertaken in response to an invitation by the State or local authority;
(6) The placement of military facilities or military activities involving the use of Federal property alone; or
(7) Any military or foreign affairs functions (including procurement functions thereunder), but not including the U.S. Army Corps of Engineers civil works program.
Sec. 3. General Principles. In formulating or implementing policies that have takings implications, each Executive department and agency shall be guided by the following general principles:
(a) Governmental officials should be sensitive to, anticipate, and account for, the obligations imposed by the Just Compensation Clause of the Fifth Amendment in planning and carrying out governmental actions so that they do not result in the imposition of unanticipated or undue additional burdens on the public fisc.
(b) Actions undertaken by governmental officials that result in a physical invasion or occupancy of private property, and regulations imposed on private property that substantially affect its value or use, may constitute a taking of property. Further, governmental action may amount to a taking even though the action results in less than a complete deprivation of all use or value, or of all separate and distinct interests in the same private property and even if the action constituting a taking is temporary in nature.
(c) Government officials whose actions are taken specifically for purposes of protecting public health and safety are ordinarily given broader latitude by courts before their actions are considered to be takings. However, the mere assertion of a public health and safety purpose is insufficient to avoid a taking. Actions to which this Order applies asserted to be for the protection of public health and safety, therefore, should be undertaken only in response to real and substantial threats to public health and safety, be designed to advance significantly the
health and safety purpose, and be no greater than is necessary to achieve the health and safety purpose.
(d) While normal governmental processes do not ordinarily effect takings, undue delays in decision-making during which private property use if interfered with carry a risk of being held to be takings. Additionally, a delay in processing may increase significantly the size of compensation due if a taking is later found to have occurred.
(e) The Just Compensation Clause is self-actuating, requiring that compensation be paid whenever governmental action results in a taking of private property regardless of whether the underlying authority for the action contemplated a taking or authorized the payment of compensation. Accordingly, governmental actions that may have a significant impact on the use or value of private property should be scrutinized to avoid undue or unplanned burdens on the public fisc.
Sec. 4. Department and Agency Action. In addition to the fundamental principles set forth in Section 3, Executive departments and agencies shall adhere, to the extent permitted by law, to the following criteria when implementing policies that have takings implications:
(a) When an Executive department or agency requires a private party to obtain a permit in order to undertake a specific use of, or action with respect to, private property, any conditions imposed on the granting of a permit shall:
(1) Serve the same purpose that would have been served by a prohibition of the use or action; and
(2) Substantially advance that purpose.
(b) When a proposed action would place a restriction on a use of private property, the restriction imposed on the use shall not be disproportionate to the extent to which the use contributes to the overall problem that the restriction is imposed to redress.
(c) When a proposed action involves a permitting process or any other decision-making process that will interfere with, or otherwise prohibit, the use of private property pending the completion of the process, the duration of the process shall be kept to the minimum necessary. (d) Before undertaking any proposed action regulating private property use for the protection of public health or safety, the Executive department or agency involved shall, in internal deliberative documents and any submissions to the Director of the Office of Management and Budget that are required:
(1) Identify clearly, with as much specificity as possible, the public health or safety risk created by the private property use that is the subject of the proposed action;
(2) Establish that such proposed action substantially advances the purpose of protecting public health and safety against the specifically identified risk;
(3) Establish to the extent possible that the restrictions imposed on the private property are not disproportionate to the extent to which the use contributes to the overall risk; and
(4) Estimate, to the extent possible, the potential cost to the government in the event that a court later determines that the action constituted a taking.
In instances in which there is an immediate threat to health and safety that constitutes an emergency requiring immediate response, this analysis may be done upon completion of the emergency action.
Sec. 5. Executive Department and Agency Implementation. (a) The head of each Executive department and agency shall designate an official to be responsible for ensuring compliance with this Order with respect to the actions of that department or agency.
(b) Executive departments and agencies shall, to the extent permitted by law, identify the takings implications of proposed regulatory actions and address the merits of those actions in light of the identified takings implications, if any, in all required submissions made to the Office of Management and Budget. Significant takings implications should also be identified and discussed in notices of proposed rule-making and messages transmitting legislative proposals to the Congress, stating the departments' and agencies' conclusions on the takings issues.
(c) Executive departments and agencies shall identify each existing Federal rule and regulation against which a takings award has been made or against which a takings claim is pending including the amount of each claim or award. A "takings" award has been made or a "takings" claim pending if the award was made, or the pending claim brought, pursuant to the Just Compensation Clause of the Fifth Amendment. An itemized compilation of all such awards made in Fiscal Years 1985, 1986, and 1987 and all such pending claims shall be submitted to the Director, Office of Management and Budget, on or before May 16, 1988.
(d) Each Executive department and agency shall submit annually to the Director, Office of Management and Budget, and to the Attorney General an itemized compilation of all awards of just compensation entered against the United States for takings, including awards of interest as well as monies paid pursuant to the provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601.
(e)(1) The Director, Office of Management and Budget, and the Attorney General shall each, to the extent permitted by law, take action to ensure that the policies of the Executive departments and agencies are consistent with the principles, criteria, and requirements stated in Sections 1 through 5 of this Order, and the Office of Management and Budget shall take action to ensure that all takings awards levied against agencies are properly accounted for in agency budget submissions.
(2) In addition to the guidelines required by Section 1 of this Order, the Attorney General shall, in consultation with each Executive department and agency to which this Order applies, promulgate such supplemental guidelines as may be appropriate to the specific obligations of that department or agency.
Sec. 6. Judicial Review. This Order is intended only to improve the internal management of the Executive branch and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.
Signed by President Ronald Reagan
March 15, 1988.
Federal Register Vol. 53, p. 8859, March 18, 1988

 Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights By the authority vested in me as President by the Constitution and laws of the United States of America, and in order to ensure that government actions are undertaken on a well-reasoned basis with due regard for fiscal accountability, for the financial impact of the obligations imposed on the Federal government by the Just Compensation Clause of the Fifth Amendment, and for the Constitution, it is hereby ordered as follows: Section 1. Purpose. (a) The Fifth Amendment of the United States Constitution provides that private property shall not be taken for public use without just compensation. Government historically has used the formal exercise of the power of eminent domain, which provides orderly processes for paying just compensation, to acquire private property for public use. Recent Supreme Court decisions, however, in reaffirming the fundamental protection of private property rights provided by the Fifth Amendment and in assessing the nature of governmental actions that have an impact on constitutionally protected property rights, have also reaffirmed that governmental actions that do not formally invoke the condemnation power, including regulations, may result in a taking for which just compensation is required. (b) Responsible fiscal management and fundamental principles of good government require that government decision-makers evaluate carefully the effect of their administrative, regulatory, and legislative actions on constitutionally protected property rights. Executive departments and agencies should review their actions carefully to prevent unnecessary takings and should account in decision-making for those takings that are necessitated by statutory mandate. (c) The purpose of this Order is to assist Federal departments and agencies in undertaking such reviews and in proposing, planning, and implementing actions with due regard for the constitutional protections provided by the Fifth Amendment and to reduce the risk of undue or inadvertent burdens on the public fisc resulting from lawful governmental action. In furtherance of the purpose of this Order, the Attorney General shall, consistent with the principles stated herein and in consultation with the Executive departments and agencies, promulgate Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings to which each Executive department or agency shall refer in making the evaluations required by this Order or in otherwise taking any action that is the subject of this Order. The Guidelines shall be promulgated no later than May 1, 1988, and shall be disseminated to all units of each Executive department and agency no later than July 1, 1988. The Attorney General shall, as necessary, update these guidelines to reflect fundamental changes in takings law occurring as a result of Supreme Court decisions. Sec. 2. Definitions. For the purpose of this Order: (a) "Policies that have takings implications" refers to Federal regulations, proposed Federal regulations, proposed Federal legislation, comments on proposed Federal legislation, or other Federal policy statements that, if implemented or enacted, could effect a taking, such as rules and regulations that propose or implement licensing, permitting, or other condition requirements or limitations on private property use, or that require dedications or exactions from owners of private property. "Policies that have takings implications" does not include: (1) Actions abolishing regulations, discontinuing governmental programs, or modifying regulations in a manner that lessens interference with the use of private property; (2) Actions taken with respect to properties held in trust by the United States or in preparation for or during treaty negotiations with foreign nations; (3) Law enforcement actions involving seizure, for violations of law, of property for forfeiture or as evidence in criminal proceedings; (4) Studies or similar efforts or planning activities; (5) Communications between Federal agencies or departments and State or local land-use planning agencies regarding planned or proposed State or local actions regulating private property regardless of whether such communications are initiated by a Federal agency or department or are undertaken in response to an invitation by the State or local authority; (6) The placement of military facilities or military activities involving the use of Federal property alone; or (7) Any military or foreign affairs functions (including procurement functions thereunder) but not including the U.S. Army Corps of Engineers civil works program. (b) Private property refers to all property protected by the Just Compensation Clause of the Fifth Amendment. (c) "Actions" refers to proposed Federal regulations, proposed Federal legislation, comments on proposed Federal legislation, applications of Federal regulations to specific property, or Federal governmental actions physically invading or occupying private property, or other policy statements or actions related to Federal regulation or direct physical invasion or occupancy, but does not include: (1) Actions in which the power of eminent domain is formally exercised; (2) Actions taken with respect to properties held in trust by the United States or in preparation for or during treaty negotiations with foreign nations; (3) Law enforcement actions involving seizure, for violations of law, of property for forfeiture or as evidence in criminal proceedings; (4) Studies or similar efforts or planning activities; (5) Communications between Federal agencies or departments and State or local land-use planning agencies regarding planned or proposed State or local actions regulating private property regardless of whether such communications are initiated by a Federal agency or department or are undertaken in response to an invitation by the State or local authority; (6) The placement of military facilities or military activities involving the use of Federal property alone; or (7) Any military or foreign affairs functions (including procurement functions thereunder), but not including the U.S. Army Corps of Engineers civil works program. Sec. 3. General Principles. In formulating or implementing policies that have takings implications, each Executive department and agency shall be guided by the following general principles: (a) Governmental officials should be sensitive to, anticipate, and account for, the obligations imposed by the Just Compensation Clause of the Fifth Amendment in planning and carrying out governmental actions so that they do not result in the imposition of unanticipated or undue additional burdens on the public fisc. (b) Actions undertaken by governmental officials that result in a physical invasion or occupancy of private property, and regulations imposed on private property that substantially affect its value or use, may constitute a taking of property. Further, governmental action may amount to a taking even though the action results in less than a complete deprivation of all use or value, or of all separate and distinct interests in the same private property and even if the action constituting a taking is temporary in nature. (c) Government officials whose actions are taken specifically for purposes of protecting public health and safety are ordinarily given broader latitude by courts before their actions are considered to be takings. However, the mere assertion of a public health and safety purpose is insufficient to avoid a taking. Actions to which this Order applies asserted to be for the protection of public health and safety, therefore, should be undertaken only in response to real and substantial threats to public health and safety, be designed to advance significantly the health and safety purpose, and be no greater than is necessary to achieve the health and safety purpose. (d) While normal governmental processes do not ordinarily effect takings, undue delays in decision-making during which private property use if interfered with carry a risk of being held to be takings. Additionally, a delay in processing may increase significantly the size of compensation due if a taking is later found to have occurred. (e) The Just Compensation Clause is self-actuating, requiring that compensation be paid whenever governmental action results in a taking of private property regardless of whether the underlying authority for the action contemplated a taking or authorized the payment of compensation. Accordingly, governmental actions that may have a significant impact on the use or value of private property should be scrutinized to avoid undue or unplanned burdens on the public fisc. Sec. 4. Department and Agency Action. In addition to the fundamental principles set forth in Section 3, Executive departments and agencies shall adhere, to the extent permitted by law, to the following criteria when implementing policies that have takings implications: (a) When an Executive department or agency requires a private party to obtain a permit in order to undertake a specific use of, or action with respect to, private property, any conditions imposed on the granting of a permit shall: (1) Serve the same purpose that would have been served by a prohibition of the use or action; and (2) Substantially advance that purpose. (b) When a proposed action would place a restriction on a use of private property, the restriction imposed on the use shall not be disproportionate to the extent to which the use contributes to the overall problem that the restriction is imposed to redress. (c) When a proposed action involves a permitting process or any other decision-making process that will interfere with, or otherwise prohibit, the use of private property pending the completion of the process, the duration of the process shall be kept to the minimum necessary. (d) Before undertaking any proposed action regulating private property use for the protection of public health or safety, the Executive department or agency involved shall, in internal deliberative documents and any submissions to the Director of the Office of Management and Budget that are required: (1) Identify clearly, with as much specificity as possible, the public health or safety risk created by the private property use that is the subject of the proposed action; (2) Establish that such proposed action substantially advances the purpose of protecting public health and safety against the specifically identified risk; (3) Establish to the extent possible that the restrictions imposed on the private property are not disproportionate to the extent to which the use contributes to the overall risk; and (4) Estimate, to the extent possible, the potential cost to the government in the event that a court later determines that the action constituted a taking. In instances in which there is an immediate threat to health and safety that constitutes an emergency requiring immediate response, this analysis may be done upon completion of the emergency action. Sec. 5. Executive Department and Agency Implementation. (a) The head of each Executive department and agency shall designate an official to be responsible for ensuring compliance with this Order with respect to the actions of that department or agency. (b) Executive departments and agencies shall, to the extent permitted by law, identify the takings implications of proposed regulatory actions and address the merits of those actions in light of the identified takings implications, if any, in all required submissions made to the Office of Management and Budget. Significant takings implications should also be identified and discussed in notices of proposed rule-making and messages transmitting legislative proposals to the Congress, stating the departments' and agencies' conclusions on the takings issues. (c) Executive departments and agencies shall identify each existing Federal rule and regulation against which a takings award has been made or against which a takings claim is pending including the amount of each claim or award. A "takings" award has been made or a "takings" claim pending if the award was made, or the pending claim brought, pursuant to the Just Compensation Clause of the Fifth Amendment. An itemized compilation of all such awards made in Fiscal Years 1985, 1986, and 1987 and all such pending claims shall be submitted to the Director, Office of Management and Budget, on or before May 16, 1988. (d) Each Executive department and agency shall submit annually to the Director, Office of Management and Budget, and to the Attorney General an itemized compilation of all awards of just compensation entered against the United States for takings, including awards of interest as well as monies paid pursuant to the provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601. (e)(1) The Director, Office of Management and Budget, and the Attorney General shall each, to the extent permitted by law, take action to ensure that the policies of the Executive departments and agencies are consistent with the principles, criteria, and requirements stated in Sections 1 through 5 of this Order, and the Office of Management and Budget shall take action to ensure that all takings awards levied against agencies are properly accounted for in agency budget submissions. (2) In addition to the guidelines required by Section 1 of this Order, the Attorney General shall, in consultation with each Executive department and agency to which this Order applies, promulgate such supplemental guidelines as may be appropriate to the specific obligations of that department or agency. Sec. 6. Judicial Review. This Order is intended only to improve the internal management of the Executive branch and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person. Signed by President Ronald Reagan March 15, 1988. Federal Register Vol. 53, p. 8859, March 18, 1988

How Much Circumstantial Evidence Is Enough To Establish Liability?

More Than Just Proximity and a Bad Name 

Based on input from key stakeholders including the public, industry and the public health communities, today's announcement represents a dramatic cut in the cost of implementation, while maintaining maximum public health benefits.

Environment - USA

Vapour intrusion pathway may be added to Superfund ranking system

February 28 2011

For more than two decades, the Environmental Protection Agency (EPA) has considered four exposure pathways in determining whether to list contaminated sites on the Superfund National Priorities List: groundwater, surface water, soil and air. In a Federal Register notice published on January 31 2011, the EPA solicited public comment on the potential addition of a fifth pathway: soil vapour intrusion.

The migration of vapours from sub-surface contamination into overlying buildings, known as vapour intrusion, is a growing concern for federal and state environmental regulators. Vapour intrusion is most common at sites with elevated levels of volatile organic compounds – including chlorinated solvents and sometimes gasoline – which enter indoor air through openings around sewer lines, cracks in a building's foundation or basement, or other preferential pathways.

Under the federal Superfund law, the EPA screens contaminated sites for listing on the National Priorities List through its Hazard Ranking System, assigning each site a score based on its perceived threat to human health and the environment. The risk of vapour intrusion, however, does not currently factor into this determination. A May 2010 Government Accountability Office report found that, given the EPA's inability to designate National Priorities List sites on the basis of vapour intrusion, "[s]tates may be left to remediate those sites without federal assistance, and given states' constrained budgets, some states may not have the ability to clean up these sites on their own".

Until April 16 2011, the EPA will now be collecting public comment on the potential revision of the Hazard Ranking System to account for vapour intrusion. It plans to hold three public listening sessions on the topic. While it has not proposed specific regulatory changes at this point, the EPA "will consider the information gathered from this Notice, listening sessions, and other sources before making a decision to issue a proposed rulemaking to add subsurface contaminant intrusion" to the Hazard Ranking System.

The EPA is also in the process of revising its draft guidance for the evaluation of vapour intrusion risks, which was initially released in 2002 but has yet to be finalised. The EPA outlined a number of likely changes to that document last October and plans to issue updated guidance by November 2012.

Finally, the New York State Department of Environmental Conservation is continuing to re-evaluate vapour intrusion pathways and has reopened several sites that had already been remediated and delisted to require additional monitoring or mitigation measures.

For further information on this topic please contact Christine Leas , Jeffrey Gracer or Michael Bogin at Sive Paget & Riesel PC by telephone (+1 212 421 2150), fax (+1 212 421 2035) or email ( cleas@sprlaw.com , jgracer@sprlaw.com or mbogin@sprlaw.com ).

Briefly describe the procedural history, the result below, and the main issues on appeal.
Describe any proceedings remaining below or any related proceedings in other tribunals.
(Please continue to next page.)
Procedural History:
Plaintiffs US and State of California moved for partial summary judgment on the issue of liability, contending that
Defendants were jointly and severally liable for defense costs. Defendants opposed the motion.
2002: Partial Summary Judgment in favor of plaintiffs - the court denied what was termed the Defendants
"divisibility of harm" defense, saying that "distinct harms" would be difficult to identify.
12/18/2009: Defendants filed a Motion to reconsider, based on the Supreme Court's decision in Northern and Santa
Fe Ry. Co. v. U.S., 129 S.Ct. 1870, 173 L.Ed.2d. 812 (2009) ("Burlington Northern")
5/2/2010: The court denied Defendants motion for reconsideration.
Result: On December 16, 2010, Final Judgment was entered in favor of Plaintiffs.
Main Issue on Appeal:
whether the district court erred in rejecting defendants' divisibility of harm defense (see Northern and Santa Fe Ry.
Co. v. U.S., 129 S.Ct. 1870, 173 L.Ed.2d. 812 (2009) ("Burlington Northern") and further erred in rejecting
defendants' set off defense based on plaintiffs' $800 Million settlement with Rhone-Poulenc in December 2000.
Counsel for defendants T. W. Arman and Iron Mountain Mines, Inc., William A. Logan, Jr. and Logan & Giles LLP
(collectively "LOGAN") intend to file a motion for leave to withdraw. See LOGAN's previously filed Motion for
Leave to Withdraw in ninth circuit case no. 09-17411. The court's order, entered February 22, 2011, denied the
motion "but without prejudice to renewal of the withdrawal motion in the appeal of the final judgment."

Counsel for defendants T. W. Arman and Iron Mountain Mines, Inc., William A. Logan, Jr. and Logan & Giles LLP
(collectively "LOGAN") intend to file a motion for leave to withdraw. See LOGAN's previously filed Motion for
Leave to Withdraw in ninth circuit case no. 09-17411. The court's order, entered February 22, 2011, denied the
motion "but without prejudice to renewal of the withdrawal motion in the appeal of the final judgment."

FROM THE OFFICE OF THE INSPECTOR GENERAL:

EPA does not enforce a coherent program of position management to assure the efficient and effective use of its workforce. While some organizational elements have independently established programs to control their resources, there is no Agency-wide effort to ensure that personnel are put to the best use. Prior to April 2010, EPA had the Position Management and Control Manual, which required an Agency-wide program. However this manual was not enforced and in April 2010 it was cancelled without replacement. According to the cancellation memorandum, the manual was eliminated because Office of Administration and Resources Management (OARM) officials believed EPA had other mechanisms in place to appropriately manage and control its positions. However, the other mechanisms do not provide similar effects, controls, or documentation. Without an Agency-wide position management program, EPA leadership lacks reasonable assurance that it is using personnel in an effective and efficient manner to achieve mission results.

Related Internal Control Requirements
Besides the requirements specific to position management that were in the 3150 Manual, EPA must comply with a variety of more general requirements about internal controls. These include:
1. Federal Managers’ Financial Integrity Act (FMFIA) requires agencies to establish internal accounting and administrative controls that comply with standards established by the Comptroller General. It also requires an annual evaluation (and related statement) on whether the agency’s internal controls comply with specified standards and, if not, requires the agency to identify material weaknesses and plans to correct them.
2. Office of Management and Budget (OMB) Circular A-123, Management’s Responsibility for Internal Control, implements FMFIA. OMB Circular A-123 states that the internal control activities developed and maintained by management must comply with standards related to control environment, risk assessment, control activities, information and communication, and monitoring. Additionally, it specifies requirements for conducting assessments of internal controls.
3. EPA Records Management Policy (CIO 2155.1) implements the Federal Records Act of 1950, which requires all federal agencies to make and preserve records that document their organization, function, policies, decisions, procedures, and essential transactions. These records are public property and must be managed according to applicable laws and regulations. Thus, among other things, EPA must create, receive, and maintain official records providing adequate and proper evidence of Agency activities. Such records would include documentation of position management program activities.

EPA Cancelled Its Position Management Directive
On April 2, 2010, EPA cancelled the 3150 Manual, its written procedure on managing the workforce to accomplish the assigned mission as effectively and economically as possible. OARM staff believed position management was adequately addressed by other activities. However, the basis for that belief is undocumented.
On December 2, 2009, the Acting Deputy Director, OHR, stated that the FTE allocation process, workforce planning, and classification are the three parts of position management. However, EPA’s cancellation order, signed by the Acting Director, OHR, stated that OHR staff believed budgeting, strategic workforce planning, and strategic succession planning mechanisms allow it to appropriately manage and control positions. Further, OARM did not provide analysis or documentation of how these mechanisms allow it to appropriately manage and control positions. As described below, alternate activities do not provide similar effects, controls, or documentation as those provided by the process required by the 3150 Manual, or provide assurance that the workforce is being used efficiently and effectively.

Conclusion
EPA lacks reasonable assurance that program and regional offices are employing their staff resources effectively and efficiently. Effective resource management is essential to accomplish EPA’s mission to protect human health and the environment. EPA lacks an Agency-level program for effectively managing positions to assist in accomplishing its strategic goals and initiatives. Managing positions in a coherent and consistent program would provide EPA leadership with the tools it needs to make informed decisions about staff resources. Such a program would also assure Agency management that the workforce was used efficiently and effectively.

Action Required
In accordance with EPA Manual 2750, you are required to provide a written response to this report within 90 calendar days. Please consider our response to your comments and provide a final response, with milestone dates as appropriate. Your response will be posted on the IMMI public website, along with our memorandum commenting on your response. Your response should be provided as an Adobe PDF file that complies with the accessibility requirements of section 508 of the Rehabilitation Act of 1973, as amended. The final response should not contain data that you do not want to be released to the public; if your response contains such data, you should identify the data for redaction or removal. We have no objections to the further release of this report to the public. We will post this report to our website at http://www.ironmountainmine.com/
If you or your staff have any questions regarding this report, please contact John Hutchens, 925-878-9167 or john@ironmountainmine.com

Wildlife

An amendment to the Continuing Resolution offered by Rep. Lummis (R- WY), and passed 232- 197 , could make it harder to sue the government to enforce laws like the Endangered Species Act. The amendment would block the government from paying the legal fees of individuals or citizen groups that successfully sue it. Since the amendment does not change the underlying law, it basically would require the government to default on its obligation to pay the fees. In addition, a rider to the bill would overturn a court decision that protects endangered wolves in the northern Rockies.

Water

The Continuing Resolution includes a provision that would block the EPA from clarifying what U.S. waters are covered by the protections in the Clean Water Act in the wake of two court decisions. It also includes a rider to block implementation of Endangered Species Act protections in two critical California watersheds, the San Francisco Bay-Delta ecosystem and the San Joaquin River. Several other approved amendments also would further prevent the EPA from protecting waters from pollution:

Lands

The Continuing Resolution would eliminate 90 percent of the budget for the Land and Water Conservation Fund, which is financed with royalties from oil drilling on federal lands, and used by the federal government and the states to acquire lands for conservation and recreation. The bill also would reduce enrollment in the Wetland Reserve Program by 50,000 acres. This program allows farmers and landowners the opportunity to restore, maintain and protect wetlands on their property, leading to improved habitat for wildlife. The bill also contains a rider that would block the Department of Interior from taking steps to protect areas with wilderness characteristics.

On 2/19, the House or Representatives passed a Continuing Resolution ( H.R. 1 ) to keep the government funded through the remainder of this fiscal year, which ends 9/30. The bill would make deep cuts in environmental programs, targets climate-related programs and includes numerous legislative provisions to block the Environmental Protection Agency from issuing regulations to protect health and the environment. The bill passed 235-189, with all Democrats opposing the measure, and all Republicans supporting it except for three conservatives. President Obama has said he will veto the bill if it reaches his desk. The Senate plans to work this week on a bill without legislative provisions to keep the government open for another month to allow time for negotiations on a longer-term measure. (The current Continuing Resolution expires on 3/4.) Some of the key environmental provisions of the House-passed bill are described below.

Budget

The bill would cut the Environmental Protection Agency budget by about 30 percent from fiscal 2010 levels. Since the current fiscal year is almost half over, that represents a cut of almost 60 percent for spending in the remainder of fiscal 2011. The deepest cuts -- about $2 billion -- would be to the funds that provide money to states and localities to build and repair sewage and drinking water systems. The bill also would cut by 50 percent funding for the restoration of "America's Great Waters" such as the Chesapeake Bay, Puget Sound, Long Island Sound, the Great Lakes and Lake Champlain.

The bill also would cut by almost a quarter the budgets of a number of Department of Energy programs that promote clean energy. The bill would reduce funding for the DOE Energy Efficiency and Renewable Energy Program (- $775M), the DOE Office of Science (- $886M), the DOE Loan Guarantee Program (-$25B for all technologies except for "nuclear power facilities and front-end nuclear facilities") and the Energy Star program (-$10M). Additionally, the bill would rescind all funds provided to the programs by the American Recovery and Reinvestment Act of 2009.

The bill also would remove all funding for high-speed rail and Federal Highway Administration surface transportation priorities. The bill would cut Amtrak's budget by $151 million.

Air & Climate

The bill contains many riders -- legislative provisions that would not change the amount of spending in the bill, but carve out exceptions to current law. One rider would block the EPA from issuing or implementing any limits on emissions of carbon dioxide or other greenhouse gases from power plants or factories. An even broader provision, blocking the EPA from limiting emissions of greenhouse gases from any source for any reason -- including limiting damage to the ozone layer -- was offered by Rep. Poe (R-TX) , and approved by a vote of 249-177. Other air- and climate-related riders include:

• An amendment offered by Rep. Carter (R-TX ), and passed 250-177 , to prevent the EPA from limiting toxic emissions from cement plants. The amendment would block the EPA's efforts to keep 16,000 pounds of mercury a year out of the air.

• An amendment offered by Rep. Pompeo (R-KS), and passed 239-185 , to eliminate funding for the EPA's greenhouse gas registry. As a result, the EPA could not even collect basic data from large polluters on how much carbon dioxide and other heat-trapping pollutants are being released into the air.

• An amendment offered by Rep. Noem (R-SD), and passed 255-168 , to block the EPA from updating limits on the emission of fine particles -- basically, soot -- which are a particular health danger because they penetrate deeply into the lungs.

• An amendment offered by Rep. Young (R-AK), and passed 243-185 , to block the EPA from fully applying the Clean Air Act to oil drilling activities in Alaska. The EPA's Environmental Appeals Board recently ruled that a permit issued for Shell Oil to drill in the Arctic did not comply with the Clean Air Act. This amendment would prevent the EPA from taking any similar actions for the rest of the fiscal year.

• An amendment offered by Rep. Luetkemeyer (R-MO) , and passed 244-179 , to eliminate U.S. funding for the Intergovernmental Panel on Climate Change, which has been a primary source for scientific information on climate change. The IPCC, which won a Nobel Prize for its work in 2007, was established with the support of the George H.W. Bush administration to provide authoritative international assessments of climate change.

• An amendment offered by Rep. McKinley (R-WV) , and passed 240-182 , would block the EPA from preventing coal-burning utilities from dumping certain types of toxic slurry into rivers and streams.

• An amendment offered by Rep. Goodlatte (R-VA) , and passed 230-195 , would block the EPA from implementing a plan to clean up the Chesapeake Bay.

• An amendment offered by Rep. Griffith (R-VA) , and passed 235-185 , would block the EPA from reviewing mountaintop removal coal mining operations.

• An amendment offered by Rep. Johnson (R-OH) , and passed 239-186 , would block the Department of Interior from issuing new regulations to limit stream damage from surface coal mining.

• An amendment offered by Rep. Rooney (R-FL) , and passed 237-189 , would block a plan to clean up waterways in Florida.

 

Remedy Review pursuant to 121 (c) CERCLA,

Remedial Investigation and Feasibility Study and

Restoration Plan Proposal for Modifications to Remedial Design and Remedial Action

And proposal for new Statement of Work (SOW) schedule, and budget (CERCLIS)

Concerning:

Iron Mountain Mine

 

To: The United States of America , National Resource Trustees,

U.S. District Court for the Eastern District of California, U.S. Environmental Protection Agency, National Marine Fisheries Service of the National Oceanic and Atmospheric Administration, U.S. Bureau of Reclamation, U.S. Bureau of Land Management,

State of California, California Environmental Protection Agency, California Department of Toxic Substances Control, California Hazardous Substances Account, California Hazardous Substances Cleanup Fund, California Toxic Substances Control Account, Regional Water Quality Control Board for the Central Valley Region, California State Water Resources Control Board, California Department of Fish and Game, California state Lands Commission, IT, ITX, IT Iron Mountain Operations LLC, IT Administrative Services LLC, Trust I, Trust II, the Trustee, AISLIC, and any and all successors, and the Oversight Agency, and the Ecosystem Restoration Program.

CALFED Bay-Delta Program

Rebecca Fris , CALFED Ecosystem Restoration Program, Sacramento , CA

California Department of Fish and Game

Habitat Conservation Program, Region 1, Redding , CA

Mark Stopher, Environmental Program Manager, DFG, Redding , CA

John Spitzley, Geologic Engineer, CH2MHILL, Redding , CA

Bureau of Land Management

Redding Field Office, BLM, Redding , CA

Bureau of Reclamation

Kerry Rae, Special Assistant to the Deputy Regional Director, Sacramento , CA

United States Environmental Protection Agency

Rick Sugarek, Remedial Project Manager, EPA Superfund , San Francisco , CA

National Oceanic and Atmospheric Administration

Jim Bybee, Supervisor, Habitat Conservation Division, National Marine Fisheries Service, NOAA, Santa Rosa , CA

David Chapman, West Coast Damage Assessment Coordinator, NOAA,

Elizabeth Jones, Damage Assessment and Restoration Program, NOAA,

Ramona Schreiber , NEPA Coordination, Office of Policy & Strategic Planning ,

Gary Stern, Fisheries Biologist, National Marine Fisheries Service, NOAA ,

U.S. Department of the Interior

Clementine Berger, Acting Regional Solicitor, Sacramento , CA

U.S. Fish and Wildlife Service

Dan Castleberry, USFWS, Sacramento , CA

Mike Thabault, USFWS, Sacramento , CA

Tom Suchanek, NRDA Branch Chief, USFWS, Sacramento , CA

The Iron Mountain Mine Trustee Council.

! Laura Allen, USBR, Trustee, Primary

! Natalie Cosentino-Manning, NOAA, Technical

! Dr. Russell Bellmer, NOAA, Technical

! LCDR Michael Devany, NOAA, Trustee, Primary

! Richard Forester, BLM, Trustee, Primary

! Charlene Hall, USFWS, Technical

! Nick Iadanza, NOAA, Technical

! Paul Meyer, BLM, Trustee, Alternate

! Harry Rectenwald, DFG, Trustee, Alternate

! Steve Schwarzbach, USFWS, Trustee, Primary

! Gail Siani, NOAA, Legal

! Robert Taylor, NOAA, Legal, Trustee Alternate

! Triscilla Taylor, DOI, Legal

! Steve Turek, DFG, Trustee, Primary

! Daniel Welsh, USFWS, Trustee, Alternate

! Diane Wisniewski, USBR, Trustee, Alternate

 

 

 

Pursuant to:

Consent decree of Dec. 8 th , 2000

Paragraphs 85 and 86:

85. The United States and the State agencies acknowledge and agree, and by entering this Consent Decree this Court finds, that the payments to be made by the Settling Parties pursuant to this Consent Decree represent a good faith settlement and compromise of disputed claims, that the Work to be performed under this Consent Decree and the SOW by the Site Operator represents a valuable benefit to the United States and the State agencies, and that the settlement represents a fair, reasonable, and equitable resolution of the matters addressed in this Consent Decree. The Parties further agree, and by entering this Consent Decree this Court finds, that the Released Parties, the Site Operator, the IT Parties, Trust I, Trust II, and the Trustee are entitled, as of the Effective Date of this Consent Decree, to protection from costs, damages, actions, or other claims (whether seeking contribution, indemnification, or however denominated) for matters addressed in this Consent Decree, as provided by (1) CERCLA Section 113(f)(2), 42 U.S.C.§ 9613 (f)(2), and (2) all other applicable provisions of federal or state statutes or of common law that may limit or extinguish their potential liability to persons not a party to this Consent Decree, including without limitations Sections 877 and 877.6 of the California Code of Civil Procedure.

86. The “matters addressed” in this settlement are all response actions taken or to be taken, all response costs incurred or to be incurred, and all Natural Resource Damages incurred or to be incurred, by the United States, the State agencies, or any other person with respect to the Site, and specifically include without limitation the Work to be performed by the Site Operator, all claims, counterclaims, and cross-claims filed by and against the parties in the above captioned cases, and those matters governed by the covenants contained in Sections XXI and XXII of this Consent Decree.

 

42 U.S.C.§§ 6901: (a)4: that while the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies, the problems of waste disposal as set forth above have become a matter national in scope and in concern and necessitate Federal action through financial and technical assistance and leadership in the development, demonstration, and application of new and improved methods and processes to reduce the amount of waste and unsalvage­able materials and to provide for proper and economical solid waste disposal practices. ; (b)6: if hazardous waste management is improperly performed in the first instance, corrective action is likely to be expensive, complex, and time consuming; (c)1,2,3;(d)1: millions of tons of recoverable material which could be used are needlessly buried each year ; 2: methods are available to separate usable materials from solid waste; 3: the recovery and conservation of such materials can reduce the dependence of the United States on foreign resources and reduce the deficit in its balance of payments. ; 6907(g), 6913: The Administrator shall provide teams of personnel, including Federal, State, and local employees or contractors (hereinafter referred to as “Resource Conservation and Recovery Panels”) to provide Federal agencies, States and local governments upon request with technical assistance on solid waste management, resource recovery, and resource conservation. Such teams shall include technical, marketing, financial, and institutional specialists, and the services of such teams shall be provided without charge to States or local governments.

 

9607(b), 9613(b), 9619

28 U.S.C.§§ 1331, 1345, 1651

And Claims Pursuant to paragraph 71, 77(c), 103, 107(d) and 109 and according to the Final Judgment (119) of the Consent Decree of Dec. 8, 2000

In 1872, Congress enacted the General Mining Law, allowing miners to enter onto federal land, locate valuable mineral deposits, and develop those minerals. Once a miner's claim was staked, it was inviolate against all other claims, except those asserted by the federal government itself, which could challenge the validity of a miner's claim at any time.

Miners were required to perform annual assessment work, or else the land was open to relocation by rival claimants as if no prior claim existed. If the original claimant resumed work before such relocation, the claim was preserved. Often called the “resumption doctrine,” this is the “statutory right to resume work.”

Regulatory Investigations and Remediation

Several investigations and regulatory actions at Iron Mountain have been initiated by California State agencies over the last few decades. These are too lengthy to summarize here. Since the original listing of Iron Mountain on the National Priorities List in 1983, the EPA has authorized four Records of Decision (RODs) and has considered numerous options for remediation. A condensed version of the main remedial alternatives is as follows:

• No action
• Surface-water diversion
• Lime neutralization
• Capping (partial or complete capping of the mountain to prevent infiltration)
• Enlargement of Spring Creek Debris Dam (acid water storage and release structure)
• Ground-water interception
• Air sealing
• Mine plugging
• On-site leaching and solution extraction
• Continued mining under env iron mentally safe conditions
• Combined alternatives

The EPA and the potentially responsible parties remain in legal contention over the appropriate final remediation approaches to be used at Iron Mountain Mine and the costs. Both the U.S. Government and the potentially responsible parties have funded a considerable number of investigations, remediation efforts, legal fees, and oversight management. The loads of copper, zinc, and cadmium into the Sacramento River have been reduced by 80-90%, and further remediation is in progress or being planned. The main challenge that remains is how to find a permanent (and passive) treatment solution in light of the fact that the mine drainage will continue for approximately 3,000 years unless the sulfide ore is mined out.

http://www.pnas.org/cgi/content/full/96/7/3455

 

2.2.1 Scope of Work

 

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[PDF] 5/15/2009 EPA Recovery Act Program Plan: Superfund 10-08-2010 ... Recovery Act Funded Sites Following is a list of the Recovery Act funded
Superfund sites, organized by state. ... CA IRON MOUNTAIN MINE Ongoing ... http://www.epa.gov/recovery/plans/superfund.pdf Iron Mountain Mine | FY 2008 New Construction Fact Sheets ... 10-01-2010 ... sheet (http://yosemite.epa.gov/r9/sfund/r9sfdocw.nsf/vwsoalphabetic/ Iron +
Mountain + Mine ?OpenDocument) on the Region 9 Superfund web site. ... http://www.epa.gov/superfund/accomp/factsheets08/iron_mtn_mine.htm FY 2008 New Construction Fact Sheets | Superfund | US EPA 10-01-2010 ... Superfund National Accomplishments Summary FY 2006; FY 2008 New
Construction Fact Sheets. ? ... Region 9 (CA, NV, AZ, HI). Iron Mountain Mine ? ... http://www.epa.gov/superfund/accomp/factsheets08/ [ More results from www.epa.gov/superfund/accomp/factsheets08 ] NPL Sites | Abandoned Mine Lands | Superfund | US EPA 10-01-2010 ... provides current information on AML sites from ... proposed sites or Superfund
Alternative Sites). ... IRON MOUNTAIN MINE , 09, CA, CAD980498612, X, ... http://www.epa.gov/superfund/programs/aml/amlsite/npl.htm Case Studies | Abandoned Mine Lands | Superfund | US EPA 05-10-2010 ... Abandoned Mine Lands ( AML ). Contact Us Search: All EPA Abandoned Mine
Lands. You are here: EPA Home; Superfund ; Programs; Abandoned ... http://www.epa.gov/superfund/programs/aml/tech/case.htm [ More results from www.epa.gov/superfund/programs/aml ] Additional Publications — M | Superfund | US EPA 10-01-2010 ... Mandatory Community Relations Training: Superfund Management Review ...
US Radium, Homestake Mill, Iron Mountain Mine , Johns-Manville ... http://www.epa.gov/superfund/pubs/mpubs.htm Superfund 25th Anniversary Photos | Superfund | US EPA 10-01-2010 ... Iron Mountain Mine Redding, California. Superfund Help: Acronyms |
Topics | Frequent Questions | Publications | Sitemap. ... http://www.epa.gov/superfund/25anniversary/photo/pages/12sugarek.htm Iron Mountain Mine | Implementation of the Recovery Act | US ... 09-30-2010 ... Home; Implementation of the 2009 Recovery Act; Superfund Sites Receiving
American Recovery and Reinvestment Act Funding; Iron Mountain Mine ... http://www.epa.gov/superfund/eparecovery/iron_mountain.html Superfund Sites Receiving American Recovery and ... 09-09-2010 ... the progress of the Recovery Act funded Superfund sites will be ... Iron Mountain
Mine – Redding, CA; Frontier Fertilizer – Davis, CA; Sulphur Bank ... http://www.epa.gov/superfund/eparecovery/sites.html [ More results from www.epa.gov/superfund/eparecovery ] [PDF] Superfund : 20 Years of Protecting Human Health and the ... 08-20-2010 ... at the Iron Mountain Mine site. The settlement is one of the largest to be reached
with a single private party in the history of the Superfund program. ... http://www.epa.gov/superfund/20years/20yrpt2.pdf 20th Anniversary Report - Chapter 4, page 12 | Superfund ... 07-21-2010 ... at the Iron Mountain Mine site. The settlement is one of the largest to be reached
with a single private party in the history of the Superfund Program. ... http://www.epa.gov/superfund/20years/ch4pg12.htm [ More results from www.epa.gov/superfund/20years ] Where You Live | Abandoned Mine Lands | Superfund | US ... 05-10-2010 ... Mining-Related Sites; Superfund Mining Sites ... Announce Long-Term Settlement
for Iron Mountain Mine ; ... AML Home | Basic Information | Where You ... http://www.epa.gov/aml/regions/ FR - Deletion of sites from the NPL | National Priorities List ... 05-10-2010 ... not automatic results of the NCP revisions, including the NPL, and
implementation of the Superfund program. ... 09, CA, Iron Mountain Mine , Redding, ... http://www.epa.gov/superfund/sites/npl/d830908.htm Final 59 FR 8724, 02/23/1994 | National Priorities List (NPL) ... 03-17-2010 ... Appendix B - National Priorities List. Table 1 General Superfund Section,
February 1994. ... CA, Iron Mountain Mine , Redding, CA, JH Baxter & Co. Weed ... http://www.epa.gov/superfund/sites/npl/f940223.htm [ More results from www.epa.gov/superfund/sites/npl ] [PDF] WAR 1 1 2010 04-26-2010 ... Page 5. FY 2008 Superfund Five-Year Review Report to Congress ... 09 IRON
MOUNTAIN MINE Statutory 2008 07/14/2008 Protective ... http://www.epa.gov/superfund/cleanup/postconstruction/fy08.fyr.reportt... [PDF] Superfund 2008 Annual Report 04-19-2010 ... In FY 2008, EPA Re- gion 9 initiated construction at the Iron Mountain Mine
site Page 12. 10 Superfund Annual Report FY2008 ... http://www.epa.gov/superfund/accomp/pdfs/sf_annual_report_2008.pdf AML sites with EPA Removals/Emergency Responses ... 03-17-2010 ... You are here: EPA Home; Superfund ; Programs; Abandoned ... Other AML Site
Information. ... IRON MOUNTAIN MINE , CAD980498612, 9, CA, Metals, 3/3 ... http://www.epa.gov/aml/amlsite/removal.htm Flat Creek IMM | Region 8 | US EPA 04-26-2010 ... State Lands) conducted an abandoned mine investigation of Iron Mountain
Mine and Mill ... Iron Mountain Mill site to its State Superfund List (CECRA ... http://www.epa.gov/region8/superfund/mt/flatcreekimm/ EPA Pacific Southwest Implementation of the Recovery Act ... 09-29-2009 ... You are here: EPA Home; EPA Pacific Southwest; Recovery Act; Superfund .
Superfund . ... Recovery Act Project Activity. Iron Mountain Mine Redding, CA ... http://www.epa.gov/region9/eparecovery/superfund/ironmtn.html EPA Pacific Southwest Implementation of the Recovery Act ... 09-24-2009 ... Superfund . ... ARRA funding will help expedite the clean-up of targeted
Superfund sites. The following Superfund sites in Region ... http://www.epa.gov/region9/eparecovery/superfund/ [ More results from www.epa.gov/region9/eparecovery/superfund ] [PDF] EPA SRI CPRM Data Region 9 07-01-2009 Page 1. EPA Region 9 CPRM Data ? Superfund Sites ... 09 CAD980498612
IRON MOUNTAIN MINE FINAL NO 5504.0 4595.0 909.0 ... http://www.epa.gov/superfund/programs/recycle/pdf/r9cprm.pdf [PDF] Federal Facilities Restoration and Reuse Office CPRM ... 07-01-2009 Page 1. Federal Facilities Restoration and Reuse Office CPRM Universe
Acres with Acres Protective for People and Acres ... http://www.epa.gov/superfund/programs/recycle/pdf/cprmdata.pdf [ More results from www.epa.gov/superfund/programs/recycle ] [PDF] FIVE YEAR REVIEW - IRON MOUNTAIN MINE - 07/14/2008 03-22-2009 Page 1. Five-Year Review Report Fourth Five-Year Review Report for Iron
Mountain Mine Superfund Site Redding, California July 2008 ... http://www.epa.gov/superfund/sites/fiveyear/f2008090002697.pdf [PDF] FIVE-YEAR REVIEW - IRON MOUNTAIN MINE - 09/30/1993 02-14-2007 ... MEMORANDUM TO: Iron Mountain Mine Site File ... SUBJECT: Five-Year Review
of the Partial Cap Remedial Action at Iron Mountain Mine ... http://www.epa.gov/superfund/sites/fiveyear/f9309005.pdf [ More results from www.epa.gov/superfund/sites/fiveyear ] [PDF] Iron Mountain Mine case study 09-13-2007 ... “ Iron Mountain Mine Superfund Site: Iron Mountain Mine cleanup controls
95% of the copper, cadmium and zinc discharges.” San Francisco, CA. ... http://www.epa.gov/aml/tech/imm.pdf [PDF] Current Information on Mine Waste Treatment Technologies 09-13-2007 ... APS) Not Available The Douglas Highwall AML site, Tucker County,
WV ... 7631 Iron Mountain Mine , CA; Leviathan Mine, CA ... http://www.epa.gov/aml/tech/appenc.pdf [ More results from www.epa.gov/aml/tech ] Database 09-13-2007 ... NPL; Deferred to State of NM, NM Environment Dept. Superfund Oversight
Section, 70, 69, UNC SAN MATEO MINE, 6, NM, ... http://www.epa.gov/aml/downloads/cerclis_inventory.xls [PDF] ABANDONED MINE SITE CHARACTERIZATION and ... 07-16-2007 ... During the earliest days of Handbook development, Mike Bishop of EPA Region
8 lead the effort to develop a Superfund Mine Waste Reference ... http://www.epa.gov/superfund/policy/remedy/pdfs/amscch.pdf [PDF] Appendix - Abandoned Mine Site Characterization and ... 07-16-2007 ... Experiments used pilot scale bioreactors constructed underground at the Eagle
Mine Superfund site in Colorado. ... Iron Mountain Mine ... http://www.epa.gov/superfund/policy/remedy/pdfs/appendix.pdf [ More results from www.epa.gov/superfund/policy/remedy ] [PDF] RODS - IRON MOUNTAIN MINE (OU 05) 04-21-2005 ... TABLE 1 History of Remedial Actions at Iron Mountain Mine Superfund Site
Iron Mountain Mine Record of Decision 5, Shasta County, California ... http://www.epa.gov/superfund/sites/rods/fulltext/r0904650.pdf [PDF] RODS - SILVER BOW CREEK/BUTTE AREA (OU 03) 05-19-2004 ... EPA Superfund Record of Decision: ... EPA's ( Superfund guidance) maximum
acceptable risk probability is one in 10,000 (1E-04). ... http://www.epa.gov/superfund/sites/rods/fulltext/r0894102.pdf [ More results from www.epa.gov/superfund/sites/rods ] [PDF] Auxiliary Information: National Priorities List, Proposed Rule ... 09-23-2004 ... CA General Superfund Sites AMCO Chemical Advanced Micro Devices ...
Magnetics Intersil Inc./Siemens Components Iron Mountain Mine JH Baxter ... http://www.epa.gov/superfund/sites/auxil.pdf [PDF] Auxiliary Information: National Priorities List, Final Rule 07-21-2004 ... CA General Superfund Sites AMCO Chemical Advanced Micro Devices ...
Magnetics Intersil Inc./Siemens Components Iron Mountain Mine JH Baxter ... http://www.epa.gov/superfund/sites/auxil1.pdf [ More results from www.epa.gov/superfund/sites ] [PDF] Site Narrative - IRON MOUNTAIN MINE 05-19-2004 ... Home > Superfund > Sites > National Priorities List (NPL) > Locate NPL Sites >
NPL Sites in the US > NPL Site Narrative for Iron Mountain Mine ... http://www.epa.gov/superfund/sites/nplsnl/n0901755.pdf [PDF] NPL Fact Sheet - IRON MOUNTAIN MINE (Final) 09-18-2003 ... for Iron Mountain Mine Cleanup Page 6. ... location: Superfund Records Center
Mail Stop SFD-7C 95 Hawthorne Street, Room 403 ... http://www.epa.gov/superfund/sites/nplfs/fs0901755.pdf

JUDICIAL & ADMINISTRATIVE CONSPIRACY - EXTORTION

Exceptions to the Normal NPDES/WDR System
Most owners or operators of facilities that discharge waste into a municipal sanitary sewer system need not obtain an NPDES permit. The United States Environmental Protection Agency (USEPA), the SWRCB, and the respective RWQCB or the local wastewater management agency may require some industries to treat industrial wastes before such wastes are discharged to a municipal sanitary sewer system. The local wastewater management agency advises industries of these requirements.

Stormwater runoff is regulated in certain jurisdictions by programs administered by either the RWQCB or local agencies. These two parallel structures address runoff from urban areas, manufacturing operations and construction sites. Contact the RWQCB for your area to determine if you need to apply and to which agency.

For more information, see

• Construction Storm Water Filings and Permits
• Industrial Storm Water Filings and Permits .

Fees and Fines
Applicants pay a fee to the RWQCB with the permit application. This fee also serves as the first annual fee. The RWQCB determines the fee to be submitted with the application and the annual fee to be paid thereafter if the permit is issued.

After the permit is issued, a discharger must pay a fee annually to the SWRCB.

The "rating" criteria to determine fees is based on the threat to water quality and the complexity of the applicant's proposed discharge. The impacts on water quality can be measured and rated from long-term loss of a designated beneficial use of the receiving water to minor discharges that could degrade water quality without violating water quality objectives, or cause a minor impairment of designated beneficial uses.

The complexity of the proposed discharge can range from those involving hazardous wastes/materials or multiple discharge points to those having passive treatment and disposal systems, such as septic systems with subsurface disposal systems, or dischargers having waste storage systems with land disposal.

Violations
The SWRCB or the RWQCB may require the discharger to discontinue the discharge if the conditions of the permit requirements was violated or misrepresented. Either agency may either assess civil liability up to $10,000 per day or go to court to seek fines of up to $25,000 per day for violations of the discharge requirements or up to $50,000 per day for willful or intentional violations.

 

Energy & Environment

"Each of us has a part to play in a new future that will benefit all of us. As we recover from this recession, the transition to clean energy has the potential to grow our economy and create millions of jobs -– but only if we accelerate that transition. Only if we seize the moment. And only if we rally together and act as one nation –- workers and entrepreneurs; scientists and citizens; the public and private sectors."

- President Obama, June 15, 2010

A Promise of Environmental Justice for All Americans

Last week, the Obama Administration hosted a first of its kind event – a White House forum to give a national voice to under-represented American communities that shoulder a disproportionate amount of pollution.  Environmental justice is a concept that began decades ago.  It's a movement that argues that every American, regardless of income level or minority status, deserves strong Federal protection from environmental and health hazards.

 

"both our financial system and the economy as a whole continue to show signs of significant damage.

... many families are still struggling to regain financial security. And although many businesses are growing again, others, particularly, small businesses, continue to encounter difficulties accessing credit."

-Timothy Geithner

DENNIS HEIMAN, PERPETRATOR OF FALSE CLAIMS AGAINST TED ARMAN

THERE ARE NO SPAWNING GROUNDS IN KESWICK LAKE, NO FISH LADDER

THE "CRUDE TREATMENT SYSTEM" WAS COPPER CEMENTATION, NOT TREATMENT

COPPER IN THE SACRAMENTO RIVER & SAN FRANCISCO BAY COMES PRIMARILY FROM AUTOMOTIVE BRAKE WEAR IN STORM WATER RUN-OFF AND BOAT PAINT

CADMIUM LEACHES FROM THE PAINT OF THE MOTHBALL FLEET AND OLD BATTERIES

ZINC IS AN ABUNDANT ESSENTIAL NUTRIENT, NOT POISON

JUST ANOTHER REDNECK ENVIRONMENTALIST (WITH A BADGE)

$8,000 PER FISH! THAT'S SOME FANCY SUSHI

(SINCE THE JAPANESE & KOREAN FISHING FLEETS CATCH MOST OF THEM, AND THAT'S NOT COUNTING THE $360 MILLION SPENT SO FAR AT IRON MOUNTAIN MINES), EXPENSIVE FISH!

1928 California Constitution amended to prohibit waste of water and to require reasonable beneficial use.

The Colorado Supreme Court, in a 1967 case involving injury caused by a State fish hatchery, said:

 Where there is no power on the part of a State agency to condemn private property for a claimed public use, a property owner whose property has been damaged by such agency cannot be held to have commenced an action for "inverse condemnation" in a situation where no right exists in a governmental agency to proceed under eminent domain. The plaintiffs, in demanding relief in the form of damages covering the loss sustained by them, are not forced to accept the measure of damages usually applicable to a condemnation case.

MANDAMUS

Where, as distinguished from the performance of ministerial acts, discharge of the duties of an adminstrative agency calls for the exercise of discretion or judgment, mandamus is not an instrument for correcting or reviewing the exercise of such discretion unless it is shown that the action was arbitrary or capricious or prompted by wrong motives; or, as is sometimes stated, mandamus does not lie to control discretion of an administrative agency in the absence of caprice, passion, partiality, fraud, some ulterior motive, arbitrary conduct, or misapprehension of the law. Mandamus is not an appropriate process to obtain a review of an order entered by an agency acting within its jurisdiction, and the remedy by mandamus requires a plain duty and a clear legal right.

Pueblo Water Rights

No method by which the pueblo water right can be lost to the municipality that succeeded a primitive Spanish or Mexican pueblo has yet been declared by the high court of California.

On the contrary, the California Supreme Court has specifically ruled out some suggested ways in which the pueblo water right might be lost or impaired. These include nonuse and statutory forfeiture. In no case in which abandonment of a pueblo right or its loss by prescription or estoppel was alleged has any loss of water right been decreed.

In a 1902 California case, claimants under a grant of part of a riparian tract of land which granted enough water to operate a hydraulic ram, contended that all rights under the reservation had been lost by abandonment and adverse use. The fact that the grantor's successor in interest abandoned the use of the hydraulic ram in favor of other means of use was not deemed material by the supreme court, because his right to the use of the water did not cease when he ceased to operate the ram. "As a riparian owner he is not bound to use the water, or, in case of non-user, lose his right to use"

Water Rights Laws in the Nineteen Western States

By Wells A. Hutchins

 

Transactions of the American Fisheries Society 1941

Red Bluff Diversion Dam, a concrete gated weir structure 52 feet high and 5,985 feet long, including earth wings, is on the Sacramento River about 2 miles southeast of Red Bluff, California. It diverts water from the Sacramento River to the Corning and Tehama-Colusa Canals. Work began on the dam in 1962 and it was completed on August 9, 1964. The diversion capacity of the first sections of the two canals totaled 3,030 cubic feet per second.

The population of winter-run chinook salmon at Red Bluff Diversion Dam peaked in 1969, numbering about 118,000. After 1969, the populations of migratory salmon and steelhead trout on the Sacramento steadily declined and eventually dropped to less than 5 percent of the 1969 total.

To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. - THOMAS JEFFERSON

And it's hard not to run the numbers and figure that the restored spawning runs on Battle Creek, which scientists estimate will produce just under 10,000 fish a year, will be extraordinarily expensive — more than 8,000 bucks per expected new salmon and steelhead.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. - ALEXANDER HAMILTON, Federalist 78

Water Quality and Water Resources

Water Rights, Appropriation and Use FAQs Water Right Permit Process

Water Quality and Resource Regulations Agency Resource Directory Regulatory Guide Home Page

Understanding Water Rights, Appropriation, and Use

A water right is a legal entitlement authorizing water to be diverted from a specified source and put to beneficial, non-wasteful use. Water rights are property rights, but those who hold these rights do not own the water itself--they only possess the right to use it. The exercise of some water rights requires a permit or license from the California Water Resources Control Board, whose objective is to ensure that the state's waters are put to the best possible use and that the public interest is served.

 In making its decisions, the state water board targets three main areas:

• developing water resources in an orderly manner;
• preventing waste and unreasonable use of water; and
• protecting the environment.

The state board's duties are not limited to permits and licenses. It may be called upon to adjudicate water for entire systems or to act as a 'referee" or fact-finder in court cases involving water rights.

Water Right Law
Water rights in California and other Western states are markedly different from the laws governing water use in the Eastern U.S. Water right law has developed into a unique blend of two different kinds of rights, riparian (owning land adjacent to a water source and appropriative (being the first to claim water rights). Other rights exist in California as well, among them prescriptive (openly taking water to which someone else has the right) and pueblo (a municipal right based on Spanish and Mexican law).

Learn more about History of Water Right Law .

Ground Water Rights
The 'reasonable use' provision, resulting from the same 1903 law that governs other types of water rights, also applies to ground water. Previously, the English system of unregulated pumping of ground water dominated, but was inappropriate in California 's semi-arid climate. Later court decisions established that ground water may be appropriated, although appropriators' rights are subordinate to those with overlying rights, and no permit process exists.

California ground water law is complicated because of the variety of ground water rights recognized in the state. In 1914, California created a water right permit process governing the appropriation of surface water and subterranean streams. Appropriations of subterranean streams require a permit from the state Water Resources Control Board. The method for appropriating percolating ground water is to simply pump the water and put it to reasonable beneficial use. No state permit is required.

Learn more about:

• Ground Water Issues
• History of Ground Water Law

Statutory Adjudication and Court Reference
The state water board has several major water right responsibilities in addition to administering the permit and licensing system. These duties include statutory adjudication and court reference.

Statutory adjudication is a process that determines all water rights in a stream system. This can happen if a claimant petitions the state water board for an adjudication and the board finds the action necessary and in the public interest. The California Supreme Court has held that claimants or petitioners can include water users and those seeking recognition of public trust values on a stream-wide basis.

After granting the petition, the state board staff investigates the matter and issues a report that includes a Draft Order of Determination . A hearing is then held on objections to the draft report, after which the State Board adopts a Final Order of Determination and files it with the appropriate Superior Court. Objections to the final order are heard in a court hearing and the court determines their merits. The final step is a court decree that determines all water rights within the disputed system.

The state water board also may be called upon to act as a "referee" in water right conflicts, either recommending a decision on the entire case in dispute or answering questions of physical fact. State board staff carefully study the matter, then issue a draft report to which the interested parties may file objections. A hearing on these objections is authorized but is not required by law. The report becomes evidence, but the court is also required to hear any other evidence offered in rebuttal.

Public Trust
As increasing emphasis is placed on protecting instream uses ( for example, fish, wildlife, recreation, scenic enjoyment). Surface water allocations are administered under ever-tightening restrictions, posing new challenges and giving new direction to the state board's water right activities. Under the public trust doctrine, certain resources are the property of all citizens and subject to supervision by the State of California .

Originally, the public trust was limited to commerce, navigation and fisheries, but over time the courts broadened the definition to include recreational and ecological values.

Balancing the potential value of a proposed or existing water diversion with the impact it may have on the public trust is difficult. After carefully weighing the issues and arriving at this determination, the state water board is charged with implementing the action that would protect the public trust. As with all the other pieces of the California water puzzle, allocating the limited resource fairly and impartially among many competing users represents one of the board's greatest challenges.

Sub specie mali : The stream of thought flows on; but most of its segments fall into the bottomless abyss of oblivion. Of some, no memory survives the instant of their passage. Of others, it is confined to a few moments, hours or days. Others, again, leave vestiges which are indestructible, and by means of which they may be recalled as long as life endures. -William James

what is fear, saith Solomon, but a betraying of the succours that reason offereth

Deo, Patriae, Tibi.

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New wild lands policy

Interior says BLM will develop policy for lands with wilderness characteristics

Kristen Nelson

Petroleum News

Secretary of the Interior Ken Salazar issued a secretarial order Dec. 23 directing the Bureau of Land Management to designate areas with wilderness characteristics under its jurisdiction as “wild lands” and to manage them to protect their wilderness values.

“Americans love the wild places where they hunt, fish, hike and get away from it all, and they expect these lands to be protected wisely on their behalf,” Salazar said in a statement.

BLM Director Bob Abbey said the new “policy affirms the BLM's authorities under the law — and our responsibility to the American people — to protect the wilderness characteristics of the lands we oversee as part of our multiple use mission.”

Interior said input from the public and from local communities would be accepted on the designation through BLM's existing land management planning process.

BLM has not had a comprehensive national wilderness policy since 2003 when wilderness management guidance in BLM's handbook was revoked as part of what Interior described as “a controversial out-of-court settlement between then-Secretary of the Interior Gale Norton, the State of Utah, and other parties.”

Concerns from congressional delegation

Alaska's congressman, Republican Don Young, expressed outrage at Interior's actions in a Dec. 23 statement, calling it “yet another example of overreaching by the Federal Government and of the Administration detouring around Congress to get what they want.”

He called the action “disgraceful,” and said that as a member of the incoming Republican majority in the House, and the senior Republican on the Committee on Natural Resources in the present Congress, he would do everything in his power “to stop this overreaching by the Administration.”

“The new designation raises concerns about whether the Interior Department is trying to do an end run around Congress, which has sole authority to designate new wilderness areas,” said Robert Dillon, a spokesman for U.S. Sen. Lisa Murkowski, R-Alaska. “Further wilderness in Alaska without congressional approval is prohibited under the terms of ANILCA and Sen. Murkowski expects the federal government to live up to its end of that agreement.”

In background on the Alaska National Interest Lands Conservation Act, Dillon said in an e-mail to Petroleum News that the promise written into the law is that there would be “no more” presidential wilderness designations in Alaska of more than 5,000 acres, including use of the Antiquities Act, without express approval of Congress. ANILCA even prohibits study of lands for possible wilderness designation unless authorized by Congress.

State already concerned

Alaska Gov. Sean Parnell said Dec. 29: “The ‘wild land' designation for multiple-use Bureau of Land Management land is an undisguised end-run on ANILCA's ‘no more' provisions, an effort to create a de facto wilderness without Congressional oversight. It ignores ANILCA's hard-fought provisions that protect both access for traditional activities and resources that are the bedrock of Alaska's economy. We intend to bring our concerns to the Interior Department and the Congress and will also look to see what legal remedies may be available.”

Parnell had written to Salazar in November, objecting to “how certain agencies within the Department of the Interior are interpreting the Alaska National Interest Lands Conservation Act.”

He told Salazar that ANILCA, signed into law by President Carter in 1980, achieved a balance of interests, with “more than 100 million acres of federal land in Alaska” designated as new or expanded conservation system units, while also seeking to protect the state's “fledgling economy and infrastructure” and “lending finality to the issue of the State's conservation designations.”

The governor said BLM “appears to be weighing whether to add wilderness reviews” to its resource management plans in Alaska, and noted that since the passage of ANILCA, nearly all secretaries of the Interior have asked for concurrence from Alaska's governor before conducting wilderness reviews on BLM lands in Alaska.”lands in Alaska.”

NPR-A

BLM Director Bob Abbey told a Resource Development Council for Alaska audience in early December that lands within the National Petroleum Reserve-Alaska “will be assessed (and) … lands with wilderness character will be identified,” as part of the new planning effort under way for NPR-A.

When Abbey was asked at his RCA talk why, with the ANILCA compromise in place, BLM was thinking of designating lands in NPR-A as wilderness, he said he was “well aware of differences of opinion relative to what the law requires.”

Information provided by Interior related to the new wild lands policy said there has never been a statewide wilderness inventory in Alaska. The department said ANILCA “specifically recognizes the Secretary may ‘identify areas in Alaska which he determines are suitable as wilderness,'” and may make recommendations to Congress for designation of those lands as wilderness.

“Mindful of the balance struck in ANILCA, the Order permits Wild Lands to be designated in Alaska only through the BLM's comprehensive land use planning processes, which proves for robust public comment and involvement,” Interior said.

BLM “must inventory the lands in NPR-A and may designate Wild Lands in NPR-A as part of its integrated activity planning for the area,” the department said, but also said it “will continue to conduct an expeditious program of competitive oil and gas leasing in the Reserve.”

Interior said the new order provides a mechanism for the secretary of Interior “to accept the invitation extended by Congress in section 1320 of ANILCA to ‘identify areas in Alaska which he determines are suitable as wilderness and … from time to time, make recommendations to the Congress for inclusion of any such areas in the National Wilderness Preservation System, pursuant to the provisions of the Wilderness Act.'”

Designation can be modified

Interior said a wild lands designation can be made and later modified through a public administrative process, distinguishing wild lands from wilderness areas which are designated by Congress and can only be modified by legislation, and wilderness study areas, which BLM typically must manage to protect wilderness characteristics until Congress determines whether to permanently protect them as wilderness areas or modify their management.

The secretarial order states that BLM will maintain a current inventory of land under its jurisdiction and identify lands that are not designated wilderness or wilderness study areas but have wilderness characteristics.

That information will be shared with the public and integrated into BLM's land management decisions.

In the order BLM is directed to develop policy guidance within 60 days of the order, defining and clarifying how public lands with wilderness characteristics will be inventoried, described and managed.

BLM is directed to maintain a national wilderness database accessible to the public and updated annually, describing all public lands identified by BLM has having wilderness characteristics and how those lands are being managed.

And BLM is to ensure that project-level decisions and land-use planning efforts take wilderness characteristics into consideration and “include appropriate measures to protect the area's wilderness characteristics” where those lands have been identified as wild lands.

Where there are lands not previously inventoried as wild lands, but where “BLM determines that the land appears to have wilderness characteristics … BLM shall preserve its discretion to protect wildness characteristics” in land-use planning, unless BLM determines, based on a National Environmental Protection Act analysis, that a project which impairs wilderness characteristics is “appropriate and consistent with requirements of applicable law and other resource considerations consistent with this Order or necessary for the exercise of valid existing rights.”

 

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