writ of quo minusAIG – AISLIC – AIG CONSULTANTS v. IRON MOUNTAIN OPERATIONS, LLC ... We consider...

COUNTERCLAIMS in Intervention. Writ of Right, Writ of Possession, POSSE: No. 2:91-cv-00768-JAM-JFM

QUO MINUS INCIDENTAL AND PEREMPTORY ABSOLUTE SOVEREIGN MANDAMUS 1

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John F. Hutchens, sui generis, expert Curator; Chancellor ad hoc & ad litem P.O. Box 182, Canyon, Ca. 94516 925-878-9167 [email protected] Two Miners and Three Minors and 8000 acres of land - Owner/Operator, Grantee & Agent & Factor. writ of quo minus INTERVENTION IN THE UNITED STATES OF AMERICA

NORTHERN DISTRICT OF CALIFORNIA MR. JOHN F. HUTCHENS, MINER ad finemFARMER/ DEBTOR/ STATESMAN/ DAD/DISASTER ASSISTANCE DIRECTOR JOINT VENTURER, INSPECTOR, curator In Re: IRON MOUNTAIN MINE et al on behalf of all similarly situated, Ex rel: T.W. Arman & John F. Hutchens, on behalf of all classes CAFA certification

v. UNITED STATES EPA–DOJ-DOA-DOI-DOE

CALIFORNIA EASTERN DISTRICT COURT

HONORABLE JUDGE JOHN A. MENDEZ

v. JOHN F. HUTCHENS

v. WILLIAM LOGAN / LOGAN & GILES

v. BAYER CROP SCIENCES fka AVENTIS

v. LIGHTHORSE VENTURES, LLC

v. STEPHEN B. LOPEZ

v. STATE OF CALIFORNIA

v CH2MHILL

v. AIG – AISLIC – AIG CONSULTANTS

v. IRON MOUNTAIN OPERATIONS, LLC

AND DOES 1-100: adverse claims defendants

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

QUO MINUS – WS10-0507 – CONTRA COSTA REMOVAL- CIVMSC07-00955 CONTRA COSTARELATED CASES-CONCURRENT JURISDICTIONUSDC-CES Civ. 2:91-cv-00768- USCA No. 09−17411,

USCFC No. 09-207 L, &c. CLASS ACTIONS - JUDICIAL DIVISION & REDISTRICTING

ADVERSE CLAIMS, DISCOVERIES, REPRISALWRONGFUL TAKING, FALSE PRETENSES, &c.

ABSENCE OF DELECTUS PERSONAE, QUI TAM

INTERVENTION IN CAMERA STELLATA;

APPLICATION OF THE MONROE DOCTRINE

WITH VERIFICATION BY AFFIDAVIT; DANGERS TO OUR PEACE AND SAFETY;

APEX LAW ACTION; REMISSION; REVERSION; DETINUE SUR BAILMENT; VOID & VACATE LIEN & VACATE CONSENT DECREE & VACATE PREMISES & ABOLISH COERCIVE MONOPOLY; ABOLISH ESTABLISHED HOLISTIC BELIEFS.

mailto:[email protected]



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INTERVENTION BY RIGHT, COMMISSION OF SPECIAL PRIVATE INSPECTOR GENERAL

We consider a question that has split the federal courts: May a non-settling PRP intervene in litigation

to oppose a consent decree incorporating a settlement that, if approved, would bar contribution from

the settling PRP? We join the Eighth and Tenth Circuits in holding that the answer is “yes.”

in looking at the substance of the matter, they can see that it "is a clear, unmistakable infringe-

ment of rights secured by the fundamental law." Booth v. Illinois , 184 U.S. 425 , 429 .

MOTION OF THE RELATOR FOR SUPERSEDEAS & CONSOLIDATION

PURSUANT TO RULE 42(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE

“Where a court failed to observe safeguards, it amounts to denial of due process of law, court is

deprived of juris.” Merritt v. Hunter, C.A. Kansas 170 F2d 739.

“Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the

court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss

the action.” Melo v. US, 505 F2d 1026. Court for the Eastern District shall be held at Redding.

Read more: http://vlex.com/vid/sec-california-19212558#ixzz11HJZkgsS

28 USC 84 - Sec. 84. California US Code - Title 28: Judiciary and Judicial Procedure

Read more: http://vlex.com/vid/sec-california-19212558#ixzz11HIWPdJQ

a private party may “recover expenses associated with cleaning up contaminated sites.”

United States v. Atl. Research Corp., 551 U.S. 128, 131

VENUE

§ 371. a. Venue.—In local actions, where possession of land is to be recovered, or damages for an

actual trespass, or for waste,' etc., affecting land, the plaintiff must lay his declaration or declare his

injury to have happened in the very county and place that it really did happen; but in transitory ac-

tions, for injuries that might have happened anywhere, as debt, detinue, slander and the like, the

plaintiff may declare in what county he pleases, and then the trial must be in that county in which the

declaration is laid. Though if the defendant will make affidavit that the cause of action, if any, arose

not in that but in another county, the court will direct a change of the venue or visne (that is, the

vicinia or neighborhood in which the injury is declared to be done), and will oblige the plaintiff to

declare in the proper county. For the statutes 6 Richard II, c. 2 (Venue in Actions for Debt, 1382),

http://www.ironmountainmine.com/iron%20mountain/INTERVENTION%20BRIEF%20AND%20ORDER%20FOR%20EJECTMENT.pdf

http://www.ironmountainmine.com/iron%20mountain/INTERVENTION%20BRIEF%20AND%20ORDER%20FOR%20EJECTMENT.pdf

http://www.loislaw.com/livepublish8923/doclink.htp?alias=USCASE&cite=184+U.S.+425

http://www.loislaw.com/livepublish8923/doclink.htp?alias=USCASE&cite=184+U.S.+425#PG429

http://vlex.com/vid/sec-california-19212558#ixzz11HJZkgsS

http://vlex.com/source/us-code-judiciary-judicial-procedure-1027

http://vlex.com/vid/sec-california-19212558#ixzz11HIWPdJQ

ERCLAIMS in Intervention. Writ of Right, Writ of Possession, POSSE: No. 2:91-cv-00768-JAM-JFM


COUNT

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and 4 Henry IV, c. 18 (Attorneys, 1402). having ordered all writs to be laid in their proper counties,

this, as the judges conceived, empowered them to change the venue, if required, and not to insist rig-

idly on abating the writ; which practice began in the reign of James the First." And this power is dis-

cretionally exercised, so as not to cause but prevent a defect of justice. Therefore the court will not

change the venue of any of the four northern counties previous to the spring circuit; because there the

assizes are holden only once a year, at the time of the summer circuit. And it will sometimes remove

the venue from the proper jurisdiction (especially of the narrow and limited kind), upon a suggestion,

e 2 Ventr. 239. a Rastell t. Detto. 18-1. b. Fit*. Abr. t. Iiriofe. IS. Salk. 670. Tryc's Jus Filiz. 231. Styl.

Pract. Beg. (edit. 1657) 331. duly supported, that a fair and impartial trial cannot be had therein.*

California Choice of Law, Jurisdiction & Venue Clauses

Posted In California Sui Generis , Legislation

The boilerplate section of many corporate agreements include a “governing law” provision. Often

these provisions cover three related, but distinct choices – choice of law, choice of jurisdiction, and

choice of venue. More importantly, the legal principles that govern these choices are not the same (at

least here in California). In today's posting, I discuss a California choice of law statute that may be

unfamiliar to many California lawyers. In upcoming posts, I'll discuss some surprising aspects of

choice of jurisdiction and choice of venue clauses.

Section 1646 of the California Civil Code establishes a general choice of law rule for contracts: “A

contract is to be interpreted according to the law and usage of the place where it is to be performed;

or, if it does not indicate a place of performance, according to the law and usage of the place where it

is made.” In 2006, the legislature added § 1301 to the California Commercial Code to add to and

make specific the concept expressed in Civil Code § 1646. [I have for several years taught a class in

commercial law (Articles 2, 2A and 7) at Chapman University School of Law .]

There's not too much surprising there. What is interesting is that the legislature later decided to add

an exception to § 1646 by enacting § 1646.5. Thus, notwithstanding § 1646, the parties to a contract

relating to a transaction involving at least $250,000, including a transaction covered by Commercial

Code § 1301(a), may agree that California law governs their rights and duties in whole or in part,

whether or not the contract or transaction bears a reasonable relation to California.

http://www.calcorporatelaw.com/index.php/2010/10/california-choice-of-law-jurisdiction-venue-clauses/

http://www.calcorporatelaw.com/index.php/category/california-sui-generis/

http://www.calcorporatelaw.com/index.php/category/legislation/

http://www.chapman.edu/law/



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CHAPTER 13 TERRITORIAL APPLICABILITY AND GENERAL RULES Sec. 1301. Territorial applicability; parties' power to choose applicable law. 1302. Variation by agreement. 1303. Course of performance, course of dealing and usage of trade. 1304. Obligation of good faith. 1305. Remedies to be liberally administered. 1306. Waiver or renunciation of claim or right after breach. 1307. Prima facie evidence by third-party documents. 1308. Performance or acceptance under reservation of rights. 1309. Option to accelerate at will. 1310. Subordinated obligations. Enactment. Chapter 13 was added April 16, 2008, P.L.57, No.13, effective in 60 days. § 1301. Territorial applicability; parties' power to choose applicable law. (a) Agreement; reasonable relation requirement.--Except as otherwise provided in this section, when a transaction bears a reasonable relation to this Commonwealth and also to another state or nation, the parties may agree that the law either of this Commonwealth or of such other state or nation shall govern their rights and duties. (b) Absence of agreement; approved relation requirement.--In the absence of an agreement effective under subsection (a), and except as provided in subsection (c), this title applies to transactions bearing an appropriate relation to this Commonwealth. (c) Mandatory applicability of title.--If one of the following provisions of this title specifies the applicable law, that provision governs, and a contrary agreement is effective only to the extent permitted by the law so specified: (1) Section 2402 (relating to rights of creditors of seller against sold goods). (2) Sections 2A105 (relating to territorial application of division to goods covered by certificate of title) and 2A106 (relating to limitation on power of parties to consumer lease to choose applicable law and judicial forum). (3) Section 4102 (relating to applicability). (4) Section 4A507 (relating to choice of law). (5) Section 5116 (relating to choice of law and forum). (6) Section 8110 (relating to applicability; choice of law). (7)Ch. 93 Subch. A (relating to law governing perfection and priority).

§ 400. (aa) In real actions.—This, by the statute of 32 Henry VIII, c. 2 (Prescription, 1540), in a writ

of right is sixty years; in assizes, writs of entry or other possessory actions real, of the seisin of one's

ancestors, in lands, and either of their seisin, or one's own, in rents, suits and services, fifty years; and

in actions real for lands grounded upon one's own seisin or possession, such possession must have

been within thirty years. By statute 1 Mar., st. 2, c. 5 (Limitation of Actions, 1554), this limitation

does not extend to any suit for advowsons, upon reasons given in a I 307 ' former chapter." But by

the statute 21 Jac. I, c. 2 (Crown Suits, 1623), a time of limitation was extended to the case of the



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king: viz., sixty years precedent to 19 February, 1623; c but, this becoming ineffectual by efflux of

time, the same date of limitation was fixed by statute 9 George III, c. 16 (Crown Suits, 1768), to

commence and be reckoned backwards, from the time of bringing any suit or other process, to re-

cover the thing in question; so that a possession for sixty years is now a bar even against the preroga-

tive, in derogation of the ancient maxim, "nullum tempus occurrit regi (no time runs against the

king)." By another statute, 21 Jac. I. c. 16 (Limitation, 1623), twenty years is the time of limitation in

any writ of formedon, and, by a consequence, twenty years is also the limitation in every action of

ejectment; for no ejectment can be brought, unless where the lessor of the plaintiff is entitled to enter

on the lands, 4 and by the statute 21 Jac. I, c. 16, no entry can be made by any man, unless within

twenty years after his right shall accrue.

Last Chancellor to the Curia Regis of the Armanshire by-writ of quo minus

FACILITY COMPLIANCE AUDITOR –DUE DILIGENCE

The U.S. District Court for the District of Maryland has determined that the requirements for inno-

cent landowners contained in the 2001 Small Business Relief and Brownfields Revitalization Act do

not apply retroactively. Accordingly, the court ruled that a landowner may file a CERCLA Section

107 cost recovery action against a waste generator because the landowner had fulfilled the innocent

landowner requirements that were in place when the property was purchased.

The case involves a contaminated site where Mineral Pigments Corporation (which later became

known as Rockwood Pigments NA, Inc.) dumped metal-bearing wastes into sand and gravel pits dur-

ing the 1960s and 1970s. Later, 1325 G Street Associates ( G Street ) bought the site without realiz-

ing that it was contaminated.

The court ruled that Rockwood must reimburse G Street more than $181,000 for past response costs.

Further, the court held that Rockwood is liable for G Street 's future response costs at the site. The

September 7, 2004 decision was handed down in 1325 G Street Associates, LP v. Rockwood Pig-

ments NA, Inc. (Docket Number: DKC 2002-1622).

Site History

Since the 1960s, Mineral Pigments Corporation (now Rockwood Pigments NA, Inc.) has manufac-

tured metal-based pigments for use in paints and other products at its facility in Beltsville , Maryland



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. Wastes containing chromium, lead, and zinc are generated during the processes. From the late

1960s to the early 1970s, pigment wastes were disposed in mined-out sand and gravel pits located on

land then owned by the Contee Sand and Gravel Company, Inc. (CSG). The CSG site is located ap-

proximately one mile west of the Mineral Pigments facility. During this period, about 50,000 gallons

of liquid waste sludge containing lead, chromium, and zinc were dumped at the CSG site every two

weeks....

INNOCENCE, PRESUMPTION OF - The indictment or formal charge against any person is not

evidence of guilt. Indeed, the person is presumed by the law to be innocent. The law does not require

a person to prove his innocence or produce any evidence at all. The Government has the burden of

proving a person guilty beyond a reasonable doubt, and if it fails to do so the person is (so far as the

law is concerned) not guilty.

Presumption of Innocence

The concept of the presumption of innocence had its roots in the Common Law, long established in

Britain and thence in America . Besides being a part of the environment of justice in which our

Founders lived, the concept is central to the ideas of Freedom and Due Process of Law. In addition,

the common sense of any reasonably enlightened people must dictate that a person accused is inno-

cent until proven guilty, just as much as they would believe that the other rights of defendants must

be reasonably protected. Those protections for the accused were incorporated by the Founders into

the Fourth, Fifth, Sixth and Seventh Articles of the Bill of Rights , and could not have been of any

import had there not first been a presumption of innocence.

A close parallel to the presumption of innocence is the presumption of freedom -- that freedom is not

something the government rations to the people, but rather a birthright the people own in its entirety,

to be loaned back in small parts to the government with their knowing consent. The presumption of

freedom is guaranteed by the Ninth and Tenth Articles of the Bill of Rights -- too often made light of

today, but of key importance to the concept of individual Liberty . Those Articles demand, in es-

sence, that unless specifically stated to the contrary by the Constitution, the people shall be presumed

to own every freedom, as well as the power of self-determination.

http://www.csamerican.com/Doc.asp?doc=usbor



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If a citizen cannot be presumed innocent until proven guilty, he likewise will not be presumed to

have freedom without an argument over his right to that freedom. At that juncture, both freedom and

innocence yield to the convenience of government.

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

The principle that there is a presumption of innocence in favor of the accused is the undoubted law,

axiomatic and elementary, and its enforcement lies at the foundation of the administration of our

criminal law.

It is stated as unquestioned in the text-books, and has been referred to as a matter of course in the

decisions of this court and in the courts of the several States. See Taylor on Evidence, vol. 1, c. 5,

126, 127; Wills on Circumstantial Evidence, c. 5, 91; Best on Presumptions, part 2, c. 1, 63, 64; c. 3,

31-58; Greenleaf on Evidence, part 5, ? ? 29, &c.; 11 Criminal Law Magazine, 3; Wharton on Evi-

dence, ? 1244; Phillips on Evidence, Cowen & Hill's Notes, vol. 2, p. 289; Lilienthal v. United

States, 97 U.S. 237; Hopt v. Utah, 120 U.S. 430; Commonwealth v. Webster, 5 Cush. 295, 320; State

v. Bartlett, 43 N.H. 224; Alexander v. People, 96 Illinois, 96; People v. Fairchild, 48 Michigan, 31;

People v. Millard, 53 Michigan, 63; Commonwealth v. Whittaker, 131 Mass. 224; Blake v. State, 3

Tex. App. 581; Wharton v. State, 73 Alabama, 366; State v. Tibbetts, 35 Maine, 81; Moorer v. State,

44 Alabama, 15.

Greenleaf traces this presumption to Deuteronomy , and quotes Mascardus De Probationibus to show

that it was substantially embodied in the laws of Sparta and Athens . Greenl. Ev. part 5, section 29,

note. Whether Greenleaf is correct or not in this view, there can be no question that the Roman law

was pervaded with the results of this maxim of criminal administration , as the following extracts

show:

"Let all accusers understand that they are not to prefer charges unless they can be proven by proper

witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable

proof and is clearer than day." Code, L. IV, T. XX, 1, 1. 25.

[click on more to read additional quotes]

The noble (bivus) Trajan wrote to Julius Frontonus that no man should be condemned on a criminal

charge in his absence, because it was better to let the crime of a guilty person go unpunished than to



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condemn the innocent ." Dig. L. XLVIII, Tit. 19, 1. 5.

"In all cases of doubt, the most merciful construction of facts should be preferred." Dig. L. L, Tit.

XVII, 1. 56.

"In criminal cases the milder construction shall always be preserved." Dig. L. L, Tit. XVII, 1. 155, s. 2.

"In cases of doubt it is no less just than it is safe to adopt the milder construction." Dig. L. L, Tit.

XVII, 1. 192, s. 1.

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement

of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the

Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented him-

self with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius,

"a passionate man," seeing that the failure of the accusation was inevitable, could not restrain him-

self, and exclaimed, "Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of

the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Re-

rum Gestarum, L. XVIII, c. 1. The rule thus found in the Roman law was, along with many other

fundamental and humane maxims of that system, preserved for mankind by the canon law. Decretum

Gratiani de Presumptionibus, L. II, T. XXIII, c. 14, A.D. 1198; [***492] Corpus Juris Canonici His-

pani et Indici, R.P. Murillo Velarde, Tom. 1, L. II, n. 140. Exactly when this presumption was in pre-

cise words stated to be a part of the common law is involved in doubt. The writer of an able article in

the North American Review, January, 1851, tracing the genesis of the principle, says that no express

mention of the presumption of innocence can be found in the books of the common law earlier than

the date of McNally's Evidence (1802). Whether this statement is correct is a matter of no moment,

for there can be no doubt that, if the principle had not found formal expression in the common law

writers at an earlier date, yet the practice which flowed from it has existed in the common law from

the earliest time.

Fortescue says : "Who, then, in England can be put to death unjustly for any crime? since he is al-

lowed so many pleas and privileges in favor of life; none but his neighbors, men of honest and good

repute, against whom he can have no probable cause of exception, can find the person accused guilty.

Indeed, one would much rather that twenty guilty persons should escape the punishment of death



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than that one innocent person should be condemned and suffer capitally ." De Laudibus Legum An-

gliae, Amos' translation, Cambridge , 1825.

[*456] Lord Hale (1678) says : "In some cases presumptive evidence goes far to prove a person

guilty, though there be no express proof of the fact to be committed by him, but then it must be very

warily pressed, for it is better five guilty persons should escape unpunished than one innocent person

should die." 2 Hale P.C. 290. He further observes: "And thus the reasons stand on both sides, and

though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that

in practice, which hath least doubt and danger, quod dubitas, ne faceris." 1 Hale P.C. 24.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape

than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem. How fully the presump-

tion of innocence had been evolved as a principle and applied at common law is shown in

McKinley's case (1817), 33 St. Tr. 275, 506, where Lord Gillies says: "It is impossible to look at it [a

treasonable oath which it was alleged that [**404] McKinley had taken] without suspecting, and

thinking it probable, it imports an obligation to commit a capital crime. That has been and is my im-

pression. But the presumption in favor of innocence is not to be reargued by mere suspicion. I am

sorry to see, in this information, that the public prosecutor treats this too lightly; he seems to think

that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this

presumption is to be found in every code of law which has reason, and religion, and humanity, for a

foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every

judge and juryman; and I was happy to hear from Lord Hermand he is inclined to give full effect to

it. To overturn this, there must be legal evidence of guilt, carrying home a decree of conviction short

only absolute certainty."

Exercising your constitutional right cannot be converted into a crime or have sanctions levered

against it: The state cannot diminish rights of the people. [Hertado v. California, 100 US 516.] Where

rights secured by the Constitution are involved, there can be no rule making or legislation which

would abrogate them. [Miranda v. Arizona, 384 US 436, 491.] There can be no sanction or penalty

imposed upon one because of this exercise of constitutional rights. [Sherer v. Cullen, 481 F

946.]"judges of courts of limited jurisdiction are entitled to absolute immunity for their judicial acts



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unless they act in the clear absence of all jurisdiction." King v. Love, 766 F.2d 962, 966 (6th Cir.),

cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985).

In Federalist No. 33 (next to last para), Hamilton says:

…But it will not follow…that acts of…[the federal government] which are NOT PURSUANT to its

constitutional powers, but which are invasions of the residuary authorities of the..[the States], will

become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be

treated as such…[Art. VI, cl. 2] EXPRESSLY confines this supremacy to laws made PURSUANT

TO THE CONSTITUTION … [emphasis in original]

In the next paragraph, Hamilton points out that a law made by Congress which is not authorized by

the Constitution,…would not be the supreme law of the land, but a usurpation of power not granted

by the Constitution….

b) Second, note that Art. VI, clause 2 also shows that only laws of States which are Contrary to the

Constitution must fall. States may make whatever laws they wish (consistent with their State Consti-

tutions) except as prohibited by the US Constitution. Laws specifically prohibited to the States are

listed at Art. I, Sec. 10. States also may not properly make laws which contradict the Constitution.

For example, a State Law which purported to permit 25 year olds to be US Senators would contradict

Art. I, Sec. 3, clause 3, and thus would fail under the “supremacy clause”.

It is not …a mere possibility of inconvenience in the exercise of powers, but an immediate constitu-

tional repugnancy that can …alienate and extinguish a pre-existing right of sovereignty [in the

States]. (4th para)

The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign

power; and the rule that all authorities, of which the States are not explicitly divested in favor of the

Union, remain with them in full vigor…[This]is…clearly admitted by the whole tenor of

the…proposed Constitution. We there find that, notwith-standing the …grants of …authorities [to the

federal government], there has been the most pointed care in those cases where it was deemed im-

proper that the like authorities should reside in the States, to insert negative clauses prohibiting the

exercise of them by the States…[Art. I, Sec. 10] consists altogether of such provisions. This circum-

stance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of

http://www.foundingfathers.info/federalistpapers/fed33.htm



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the body of the…[proposed Constitution], which…refutes every hypothesis to the contrary. (5th

para)

The People ex. Rel. Hutchens, moves this Court, pursuant to Rule 42(a) of the Federal Rules of Civil

Procedure, to consolidate the following cases: Civ. 2:91-cv-00768- USCA No. 09−17411, No. 09-

70047, USCA No 09-71150 , USCFC No. 09-207 L.

The People ex. Rel. Hutchens moves for concurrent jurisdictions and class action fairness certifica-

tion for the purposes of TRESPASS, ADVERSE CLAIMS, EJECTMENT judgment and appeal.

The cases are appropriate for consolidation for the following reasons:

1. The cases involve common questions of law. All causes of action allege that the usurpation, inva-

sion, and occupation of Iron Mountain Mine violates Section 7 of the Clayton Act, as amended, 15

U.S.C. § 18, and Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. and general mining law.

2. The cases involve common questions of fact because they arise from the same factual situation.

3. Judicial convenience and economy will be promoted by consolidation of the actions. Consolidation

will result in one trial which will bind all plaintiffs and defendants. This will save time and avoid un-

necessary costs to the defendants, the plaintiffs in the actions, witnesses who would otherwise be re-

quired to testify in two cases, and this Court.

4. Consolidation will not delay the final disposition of this matter.

WHEREFORE, the Relator requests that its motion for concurrent jurisdictions be granted.

Held: The reference to “administrative” reports, audits, and investigations in §3730(e)(4)(A) encom-

passes disclosures made in state and local sources as well as federal sources. Pp. 4–21.

writ of certiorari - ABOLISH EPA-CERCLA-SUPERFUND:

EX POST FACTO; BILL OF ATTAINDER; CRIME OF INFAMY;

Is, or is not, the act contrary to the provisions of the fifth amendment

to the Constitution of the United States?

Does, or does not, the act, directly or indirectly, deprive any person

of property without due process of law?

Is the State deprived by the Act of any right guaranteed to it in the Constitution of the United

States, or therein implied?



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"If the purpose of this statute was to divest the title of the owner of land in this way, It is unconstitu-

tional. . . . It would be a proceeding which condemns without hearing, proceeds without Inquiry, and

renders judgment without trial. It would not be due process of law" Alexander v. Gordon, 101 Fed.

91, 98, 41 CCA 228

The sole test of adverse holding under the statute is whether the true owner is actually disseized for

the limitation period. "Actual occupancy of land to the exclusion of the true owner, regardless of

whether in good faith or bad faith . . . satisfies the calls of the statute. Such adverse possession of part

of a tract under color of title, with Intent to claim the whole, in legal effect extends to the boundaries

of the tract." Ovier v. Morrison, 142 Wis. 243, 247, 125 NW 449 (per Marshall, J.).

"U.S. Marshall McKeough explained the object of the meeting in a few pertinent remarks. He said

that Mr. Hutchens told him on yesterday that unless they give up the water in the creek aforesaid, that

he, Hutchens, would take a body of men and take the water by force of arms and hold the same until

he and his men were whipped off the ground.

His party as above mentioned claim right of possession of the water, and are suing for breach of pat-

ent, false claims, and wrongful taking by deceit.

In this dilemma Mr. Arman calls upon all his fellow-miners and countrymen to assist him in defend-

ing his rights, agreeable to the old miners' laws.

They said that this was a serious affair, they are willing to defend the old established miners' laws

and the right."

"Pursuant to adjournment meeting met at 1 o'clock, were called to order by the tenant-in-chief, Mr.

Hutchens.

Committee reported as follows, having thoroughly investigated the laws and customs of the miners of

Iron Mountain.:

We fully concur in the opinion that Mr. Arman is fully entitled to all the water in Slickrock Creek,

Boulder Creek, Spring Creek, and Flat Creek, except four torn-heads each, which is allowed for the

beds of the streams ; also that the burning of his forest, and the destruction of his dam and other

property and the taking of his water from his race by force of arms are malicious acts, and should not

be submitted to by those who are in favor of law and order.



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"On motion, the report was received and the committee discharged.

"On motion it was 'Resolved, That we assist Mr. Arman in turning the water into his race and that we

sustain him to the last extremity in keeping it in the race.'

"On motion, the meeting then adjourned for the purpose of carrying this resolution into effect."

The United States certainly has an interest in protecting the thousands of citizens in the United States

of this class action from unconscionable environmental laws violating constitutional protections,

fundamental rights, private property rights and other rights retained by the people, but the United

States California attorneys are moot.

Because of § 3729. False claims, with qui tam and 811, 1085, and 1107 & 1160 Code of Civil Pro-

cedure, and the likelihood that this matter could go on indefinitely, the Court should issue quo minus

in this case.

NOTICE: IMPOSITION OF PROPRIETARY CONTROL BY THE RESIDENT DEPUTY

FIRE MARSHALLS - FOREST WARDENS - CHANCELLOR OF THE GALES &

STANNARIES - OCTOBER 2010

The circuit court erred in not analyzing U.S. and California law as to whether the EPA actions are

both procedurally and substantively unfair and unconscionable. You generally examine the first and

second factors together. See Bauman, 557 F.2d at 654 (the second factor “is closely related to the

first”).Inc., 409 F. Supp. 2d 1196, 1201 (C.D. Cal. 2006),

Differing court interpretations of a statute "is evidence that the statute is ambiguous and unclear."

U.S. v. Iron Mountain Mines, Inc., 812 F. Supp. 1528, 1557 (E.D. Cal. 1993).

False Claims to obtain a DETERMINATION OF PROBABLE CAUSE under Section 107(1) of

CERCLA, 42 U.S.C. §9607 (1); CERCLA lien provisions; and under CERCLA Due Process Re-

quirements.

False Claims of Steven W. Anderson, Regional Judicial Officer May 4, 2000)

False Claims of James Pedri, Rick Sugarek, Kathleen Salyer, Keith Takata.

Because all five Bauman factors favor relief, and none militates against it, you should conclude that

the balance of factors favors issuing all the writs. The district court’s consent decree should be stayed

by rule 62(g)(h), and the intervention should be granted with;



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RECOGNIZANCE OF THE WARDEN OF THE ARBORETUM; FREEMINERS CHANCELLOR

ABOLISH EPA-CERCLA-SUPERFUND: UNCONSTITUTIONAL LAW

The act is contrary to the provisions of the fifth amendment to the Constitution of the United States.

The act, directly and indirectly, deprives these persons of property without due process of law.

The State is deprived by the Act of right guaranteed to it in the Constitution of the United States, or

therein implied.

Writ of quo minus

The U.S. District Court for the District of Maryland has determined that the requirements for innocent

landowners contained in the 2001 Small Business Relief and Brownfields Revitalization Act do not

apply retroactively. Accordingly, the court ruled that a landowner may file a CERCLA Section 107

cost recovery action against a waste generator because the landowner had fulfilled the innocent land-

owner requirements that were in place when the property was purchased.

Let him who takes a thief, or to whom one taken is given, and he then lets conceals the theft, pay for

the thief according to his wer. If he be an ealdorman, let him forfeit his shire, unless the king is will-

ing to be merciful to him. [ 8 ]

That a thief shall be pursued.... If there be present need, let it be made known to the hundredman, and

let him make it known to the tithingmen; and let all go forth to where God may direct them to go. Let

them do justice on the thief, as it was formerly the enactment of Edmund I . [ 9 ]

And the man who neglects this, and denies the doom of the hundred, and the same be afterwards

proved against him, let him pay to the hundred xxx. pence; and for the second time lx. pence, half to

the hundred, half to the lord. If he do so a third time, let him pay half a pound; for the fourth time, let

him forfeit all that he owns, and be an outlaw, unless the king allow Him to remain in the country. [10]

"The principal, the vital defect in the existing law," says Chief Justice Beatty (Report, page 396), "is

this permission to make local rules. There are, I have reason to believe, other important defects in the

law, but as to most of these there are more competent judges, and I leave it to them to point out the

evil and suggest a remedy. But as to- the practical workings of the local rules and customs of miners,

when allowed the force of law, I have very decided opinions, which I feel that my means of knowl-

edge justify me in stating with some confidence in their correctness. I believe that the whole subject

http://en.wikipedia.org/wiki/Conservator_of_the_peace#cite_note-7

http://en.wikipedia.org/wiki/Edmund_I





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of mining locations is an extremely simple one, which may easily, and certainly therefore ought to

be, regulated by one general law, the terms and existence of which shall be established by public and

authentic records, and not left to be proved in every case by the oral testimony of witnesses, or by

writing contained in loose papers or memorandum-books, such as are often dignified by the name of

'mining records.' I am convinced, moreover, that the tainting of every mining title in the land at its

very inception with the uncertainty which results from the actual or possible

existence of rules affecting its validity, perfectly authentic evidence of which is nowhere to be found,

is a stupendous evil.

Experience has demonstrated that such an uncertain state of the law is a prolific source of litigation,

and no experience is required to convince any man of ordinary intelligence that it must have the ef-

fect of depreciating the value of all unpatented claims by deterring the more prudent class of capital-

ists from investing in them. That the subject is simple enough to be embraced in one general law is

proved by the fact that the laws of the various districts, although differing in details, are in substance

identical, and are substantially contained in the existing acts of Congress.

Obiter dictum in the whole decision of Judge Ross is the following:

"The power to absolutely prevent the use of such waters for the objectionable purposes necessarily

includes the power to prescribe the terms and conditions upon which they may be so used." (81 Fed.

Rep. 254.) Taken in connection with the facts of the case, however, this language would simply mean:

"The power to absolutely prevent the use of such waters for the objectionable purposes necessarily

includes the power to prescribe the terms and conditions without which they may not be so used."

The decision simply decides the constitutional right of the government to protect the navigability of

the streams by closing down, through legislation, any hydraulic mine in these watersheds which has

not submitted itself to the jurisdiction of the commission. The miner will not be heard to say in resis-

tance that he is being deprived of his property without due process of law. That is settled, but that is

all that is settled, by the judicial construction thus far given to the Act. Is the working of the Act re-

ciprocal? The miner is bound with hooks of steel; but how about the farmer is he likewise bound? Is

the State of California bound? For the purposes of any miner who desires to take his chances

under the act, the test of its constitutionality should be made in some case brought against a company



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or person operating under a duly obtained permit from the commission, and not in a case against a

company or person not operating under such permit. Moreover, the test should be made in

defending a case where a farmer attacks the Act on the ground that some constitutional right of his is

being abridged, or where the people of the State of California (on relation of the Attorney-General)

attack it on the ground that some of their constitutional rights are being abridged, by the action of a

miner operating under a duly obtained permit from the commission. No other test will settle the

point. The permit of the commission is already a finality as far as the miner is concerned. Is it a final-

ity as far as the farmer and the State are -concerned? To settle this point, the questions to be pre-

sented by a farmer or by the State, under the two sets of cases above set forth, are the following : Is,

or is not, the act contrary to the provisions of the fifth amendment to the Constitution of the United

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

process of law? Is the State deprived by the Act of any right guaranteed to it in the Constitution of

the United States, or therein implied? It is contended in behalf of the miner that neither the farmer

nor the State is deprived by the Act of any property or right without due process of law; that, inas-

much as the commission has complete jurisdiction to modify or revoke its permit at any time, the

farmer and the State are not necessarily deprived by the Act of any "day in court" either may desire.

Obviously, unless the permit of the commission contemplated by the Act is a finality as far as the

courts are concerned, the statute is an injury instead of a boon to the miner. If, however, the permit is

such a finality, and the Act is declared constitutional in such a case as the above, then the farmer and

the State will, instead of going into the courts, have to submit to the jurisdiction of the commission

equally with the miner, and the present threatened interminable litigation would be at an end. The

sooner the question is conclusively settled the better, if there is to be any practical resumption of hy-

draulic mining in the basins of the Sacramento and San Joaquin Rivers.

In the basins of the Klamath and the Trinity, on the other hand, hvdraulic mining is happily free. Na-

ture, that has handicapped the industry in one section of the State, has favored it in another. These

rivers are non-navigable, and their banks for the most part precipitous. In these river basins the only

foe the industry has to contend with is the occasional blackmailer. The courts have, however, miti-

gated the power of these people for evil in two well-considered decided cases. The rule of the deci-



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sions with reference to hydraulic mining or navigable streams is separated by a district cleavage from

the rule with reference to non navigable running streams. Judge Field, always the friend of mining, in

a decision of the Supreme Court of the United States (Atchison vs. Peterson, 20 Wallace, 507), up-

held the refusal of the lower court (in Montana) to issue a writ of injunction where a prior appropria-

tor of water claimed his water was injured by tailings from a hydraulic mine, pointed out the extreme

reluctance that should guide courts in the issuance of this writ, and held that the question whether,

upon a petition or bill, asserting the prior rights of the first appropriator have been invaded, a court of

equity will interfere to restrain the acts of the party complained of, will depend on the character and

extent of the injury alleged, whether it be irremediable in its nature, whether an action at law would

afford adequate remedy, whether the parties are able to respond for the damages resulting from the

injury, and other considerations.

Nor is the adjoining mine owner permitted to become a dog in the manger. The Supreme Court of

this State on March 18, 1896, rendering its decision in the case of Jacob vs. Day, (in Cal. 571), held

that the use of water for the purpose of carrying off the tailings, and the construction of a ditch to aid

therein, are as essential to the successful conduct of hydraulic mining, as is the first use to which the

water is put in washing down the natural bank; and that the title to an adjoining mine passes under

patent from the United States subject to the easement of the right of way for a ditch used, in accor-

dance with focal mining customs, as a tailrace from a hydraulic mine across the patented ground

prior to the patent under the provisions of sections 2339 and 2340 of the Revised Statutes of the

United States. That the easement for the tailrace of a hydraulic mine is not an easement for drainage

within the meaning of section 2338 of the Revised Statutes of the United States, excluding easements

for drainage from the purview of the act of Congress; but it is a right to the use of water for mining

purposes and for the construction of ditches for such purposes within the meaning of sections 2339

and 2340 of said statutes. That an ease ment must be used in such a manner as to impose as slight a

burden and damage as possible; but where a tailrace of a hydraulic mine is an easement upon pat-

ented mining ground, the fact that the running of tailings through the tailrace in the ordinary course

of mining caused a small portion of the ground alongside of the ditch to cave down and wash away,

and caused the tailrace to cut farther into the bedrock, but without material and appreciable injury to



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the plaintiff, does not entitle the owner of the patented ground to an injunction.

While the law of mining has through enactment and decision gradually become settled, until there

remains but comparatively few doubtful points to be still construed, and but few amendments to bet-

ter the legislation we already have, mining itself in the great ledges of California is little more

than begun. It is true that, except where some ancient river channel is occasionally found, the days of

the placers are passing with the romance and the glamour of the Pioneers. Quartz mining is destined,

however, to be a permanent industry of the State. New men, new methods, and increased facilities for

operations have made of it a recognized business instead of a gamble. The history of the law of min-

ing in the future will more and more partake of the general features incident to litigation growing out

of other industries, and the element of uncertainty will be confined more and more to that element of

uncertainty found in all litigation; that which is produced by the shifting sands of evidence,

-JOHN F. DAVIS. Jackson, Cal., Dec. 9, 1901

Keswick dam to Cottonwood Creek; Final Listing Decision: Delist from 303(d) list. June 15, 2010;

EPA has not yet implemented ICs (Institutional Controls) as required at the IMM Superfund Site in

the five signed RODs (EPA, 1986; EPA, 1992; EPA, 1993; EPA, 1997; EPA, 2004)

"the revised PHG of 300 g/L is two orders of magnitude greater than the applicable numeric chemi-

cal-specific standards identified in ROD 5 for the protection of freshwater aquatic life." Rick Suga-

rek, EPA project manager for Iron Mountain Mine Superfund cleanup, 2008 5 year review.

QAPP Information: QA Info Missing; No further evidence required to facially apparent facts

ABSOLUTE ORDER FOR TEMPORARY INJUNCTIVE RELIEF FOR CEQA EIS REVIEW

CHAPTER X - Of Treaties and Ambassadors, and the Entire Dissolution of States.

I. <Wars in general are setled by treaties>. The chief laws of nature about treaties were explained in

the doctrine of contracts in natural liberty.{* } But we must remember that the exception of unjust

force and fear cannot be admitted against the obligation of any treaties of peace; otherwise the old

controversies <that occasioned the war> might always be kept a-foot. And yet such exceptions may

justly take place when the war is manifestly and avowedly unjust on one side; or if the terms imposed

{by the more potent side} are manifestly injurious and contrary to all humanity. In these cases the

http://yosemite.epa.gov/r9/sfund/r9sfdocw.nsf/3dc283e6c5d6056f88257426007417a2/0debbf5424a57c908825774900824131/$FILE/IMM%20-%204th%205YR%20Att%205-8%207-14-08.pdf






http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s372rs.txt.pdf

http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2059&chapter=155413&layout=html&Itemid=27#lfHutcheson_footnote_nt657



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party injured may insist upon an arbitration; and if the other side refuse to submit to it, each side must

by force consult its own safety and the maintenance of its rights{, by what aids it can find}.1

Treaties are divided into real, and personal: the personal, which are less in use, are entered into in fa-

vour of the prince's person, and cease to bind upon his demise. The real, respect the body of the peo-

ple, or the nation, which is deemed immortal. 2 Treaties are also divided into the equal, {such as bring

equal or proportionable burdens on each side,} and unequal {which bring unequal burdens}.3 But 'tis

not every unequal treaty that any way impairs or diminishes the† majesty and independency of the

side submitting to the greater burden.

Hostages in former ages were securities commonly given for performance of treaties, but they are

now gone into disuse; because it would be exceedingly <barbarous and> inhumane to treat the inno-

cent hostages any way harshly because of the perfidy of their country.

II. In making treaties ambassadors <or intermediaries> are employed. Their rights are all the same,

whatever names are given them, if they are entrusted to transact the affairs of a sovereign state. Their

persons should be sacred and inviolable, as we said above. They have a just natural right to demand

that their proposals should be delivered. But as to an allowance to reside any time in the state to which

they are sent, they may claim it as due out of humanity, but cannot insist on it as a perfect right. Since

the business of the more active ambassadors is much the same with that of spies upon the nations

where they reside. If they are allowed to reside; the law of nature would give them no higher rights or

immunities, than any other foreigner might claim without any publick character.4 But by the volun-

tary laws of nations, they have many singular privileges and immunities, both for themselves and all

their necessary retinue: all which however any state might without any iniquity refuse to grant them, if

they give timeous intimation of their design to do so to all concerned.

190 See Lucas v. S.C. Coastal Comm’n, 505 U.S. 1003, 1031–32 (1992). Once a mining claim is de-

termined to constitute a valid property interest, then state law will control how it can be sold, trans-

ferred, inherited, and the like—unless any particular aspect of that property right is preempted by

federal law. See Duguid v. Best, 291 F.2d 235, 239, 242 (9th Cir. 1961).

191 See Lucas, 505 U.S. at 1031–32.

192 480 U.S. 470, 519 (1987) (quoting Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155,






http://www.bc.edu/schools/law/lawreviews/meta-elements/journals/bcealr/30_1/01_TXT.htm#T190





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161 (1980)) (alterations in original). See also Palazzolo, 533 U.S. at 630; Lucas, 505 U.S. at 1016

n.7; Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 20–24 (1990) (providing a detailed ar-

ticulation of the principle that state law defines the nature of property rights); Kinross Copper Corp.

v. Oregon, 981 P.2d 833 (Or. App. 1999) (denying a waste water discharge permit for mining on fed-

eral mining claims not a taking because there is no right to pollute), cert. denied, 531 U.S. 960

(2000).

193 See, e.g., M & J Coal Co. v. United States, 47 F.3d 1148, 1153 (Fed. Cir. 1995) (discussing the

impact of federal law of navigational servitude and submerged lands on property definitions); see

also Lucas, 505 U.S. at 1029 (discussing the submerged lands and navigational servitude); Scranton

v. Wheeler, 179 U.S. 141, 163 (1900) (defining property rights in the context of submerged lands);

Palm Beach Isles Assocs. v. United States, 208 F.3d 1374 (Fed. Cir. 2000) (navigational servitude),

aff’d, 231 F.3d 1354 (Fed. Cir. 2000), reh’g en banc denied, 231 F.3d 1365 (Fed. Cir. 2000). In Palm

Beach Isles, the court found that a permit denial for environmental reasons, rather than navigational

reasons, did not invoke the navigational servitude “background principle.” Id. at 1384.

194 978 F.2d 1269, 1276 (D.C. Cir. 1992).

195 Id. at 1275–76.

196 Id. at 1277–87.

197 278 F.2d 842, 847 n.4 (9th Cir. 1960) (citing United States ex rel. Tenn. Valley Auth. v. Powel-

son, 319 U.S. 266, 279 (1943)); see also Richmond Elks Hall Ass’n v. Richmond Redevelopment

Agency, 561 F.2d 1327, 1330 (9th Cir. 1977) (holding that federal courts are not bound by state law

but look to it for aid in discerning the scope of property interests). These formulations may be incon-

sistent with Justice O’Connor’s dissent in Preseault, 494 U.S. at 20–24.

198 Adaman, 278 F.2d at 847.

199 Id.

200 See id.

201 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027, 1030 (1992) (quoting Bd. of Regents of State

Colls. v. Roth, 408 U.S. 564, 577 (1972)).












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202 See id. at 1028–29.

203 See, e.g., Schneider v. Cal. Dep’t. of Corr., 151 F.3d 1194, 1200–01 (9th Cir. 1998).

The . . . Court’s recognition of the unremarkable proposition that state law may affirmatively create

constitutionally protected “new property” interests in no way implies that a State may by statute or

regulation roll back or eliminate traditional “old property” rights. As the Supreme Court has made

clear, “the government does not have unlimited power to redefine property rights.” . . . Rather, there

is, we think, a “core” notion of constitutionally protected property into which state regulation simply

may not intrude without prompting Takings Clause scrutiny.

Id. at 1200 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)). Justice

Marshall, in his concurrence in Pruneyard Shopping Center v. Robins, noted:

I do not understand the Court to suggest that rights of property are to be defined solely by state law,

or that there is no federal constitutional barrier to the abrogation of common-law rights by Congress

or a state government. The constitutional terms “life, liberty, and property” do not derive their mean-

ing solely from the provisions of positive law. . . . Quite serious constitutional questions might be

raised if a legislature attempted to abolish certain categories of common-law rights in some general

way. Indeed, our cases demonstrate that there are limits on governmental authority to abolish “core”

common-law rights, including rights against trespass, at least without a compelling showing of neces-

sity or a provision for a reasonable alternative remedy.

447 U.S. 74, 93–94 (1980) (Marshall, J., concurring).

The Ninth Circuit observed:

“[T]here is, we think, a ‘core’ notion of constitutionally protected property,” and a state’s power to

alter it by legislation “operates as a one-way ratchet of sorts,” allowing the states to create new

property rights but not to encroach on traditional property rights.” . . . [W]ere the rule otherwise,

States could unilaterally dictate the content of—indeed altogether opt out of both the Takings Clause

and the Due Process Clause simply by statutorily recharacterizing traditional property-law concepts.

Wash. Legal Found. v. Legal Found. of Wash., 236 F.3d 1097, 1108 (9th Cir. 2001) (quoting Schnei-

der, 151 F.3d at 1200–01), reh’g, 271 F.3d 835, 841 (9th Cir. 2001) (en banc), cert. granted, 122 S.





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Ct. 2355 (2002) (No. 01-1325).

Lawrence H. Tribe writes:

To the degree that private property is to be respected in the face of republican and positivist visions, it

becomes necessary to resist even an explicit government proclamation that all property acquired in

the jurisdiction is held subject to government’s limitless power to do with it what government wishes.

Indeed, government must be denied the power to give binding force to so sweeping an announcement,

. . . if we are to give content to the just compensation clause as a real constraint on [government]

power . . . . [E]xpectations protected by the clause must have their source outside positive law.

Record Settlement to Cleanup One of the Nation's Most Toxic Waste Sites. The United States and

California reached an agreement with Aventis CropSciences USA, Inc. that will fund cleanup costs

that could approach $1 billion at the Iron Mountain Mine Superfund Site near Redding, California.

The settlement is one of the largest settlements with a single private party in the history of the federal

Superfund program. Through the creation of a unique funding vehicle that will generate $200-300

million over 30 years with a $514 million balloon payment in year 30, the settlement assures that

money is available each year for long-term operation of a pollution treatment and control system

needed to prevent toxic discharges from the site. This site has been one of the largest point sources of

toxic metals in the United States, and the source of the most acidic mine drainage in the world.

Aventis will also pay federal and state trustees $10 million for natural resource restoration projects.

Federal sovereign immunity

"Though this was the intent of the Congress [to waive sovereign immunity] in passing the 1972 Fed-

eral Water Pollution Control Act Amendments, the Supreme Court, encouraged by Federal agencies,

has misconstrued the original intent." S. Rep. No. 370, 95th Cong., 1st Sess. 67 (1977), reprinted in

1977 U.S.C.C.A.N. 4326, 4392. See Clean Air Act Amendments of 1977, Pub. L. No. 95-95, [section]

116, 91 Stat. 711 (1977); see also Clean Water Act Amendments of 1977, Pub. L. 217, [subsection]

60, 61(a), 91 Stat. 1597, 1598 (1977).

In virtually every instance where a government has suggested that ordinary environmental regula-

tions that prohibit ordinary development activities can be insulated from the Takings Clause because

the prohibited activity is alleged to be a “nuisance,” the government has lost. The Court of Federal

http://goliath.ecnext.com/coms2/gi_0199-6017143/Federal-sovereign-immunity-versus-state.html









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Claims and the Federal Circuit Court of Appeals, the courts with the most experience in examining

takings claims in the context of federal wetland regulations, have expressly rejected this notion in

every case where it has considered the idea Other courts have agreed as well. Most importantly, the

United States Supreme Court in Lucas was highly skeptical of the idea that building a home in a resi-

dential subdivision could constitute a common law nuisance.

In Just v. Marinette County, the Wisconsin Supreme Court held that “[a]n owner of land has no abso-

lute and unlimited right to change the essential natural character of his land so as to use it for a pur-

pose for which it was unsuited in its natural state and which injures the rights of others.” Just was

cited with approval by the Washington Supreme Court in Orion Corp. v. Washington: “Orion never

had the right to dredge and fill its tidelands.” A similar result was reached by the New Hampshire Su-

preme Court.216 However, in Florida Rock Industries, Inc. v. United States, the Federal Circuit found

housing to be a more valuable use than swampland, while the court in Loveladies Harbor, Inc. v.

United States expressly rejected the Just formulation as illogical. More significantly, after Lucas was

decided, some courts have begun to expressly reject the notion that a prohibition on filling wetlands

can constitute a background principle of state law. This makes some sense, as for many years it was

public policy to fill wetlands.

2. Is the Public Trust Doctrine a Relevant Background Principle?

When riparian wetlands are at issue, a relevant inquiry is whether the proposed use of the wetland in-

terferes with the public trust doctrine. Public trust rights traditionally have included the right to access

navigable waterways for fishing and navigation. Modern commentators argue that the public trust also

includes recreational and ecological values. Thus, any regulation that would restrict the ability of an

individual to utilize a private property interest in a resource subject to the public trust would not have

a cause of action for a taking because in reality the private property interest never really existed in the

first place. In fact, some commentators such as Professor Sax posit that property rights should be re-

defined to make them more akin to water rights and subject to an analogous “ecological public trust.”

California Health and Safety Code Section 25548

The California legislature, like Congress, took action in 1996 and enacted California Health and

Safety Code section 25548–the California law analogous to CERCLA section 107(n). The stated in-

http://www.bc.edu/schools/law/lawreviews/meta-elements/journals/bcealr/30_1/01_FTN.htm#F216



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tent of section 25548 is “to specify the type of lender and fiduciary conduct that will not incur liability

for hazardous material contamination.” As such, section 25548 provides exemptions and limitations to

potential fiduciary liability under the environmental laws. Thus, section 25548 residually identifies the

universe of potential liability for fiduciaries. Specifically, section 25548 addresses the exceptions to

and limitations on “the liability of trustees, executors, and other fiduciaries for hazardous material

contamination involving property that is part of the fiduciary estate.”

Section 25548.3 eliminates personal liability for fiduciaries by confining their potential liability to the

estate assets. The caveats come in section 25548.5, which makes it clear that fiduciaries do not have

blanket immunity from liability under the environmental laws.63 The protection of the limitation of

liability in section 25548.3 will not apply where (1) that liability results from the fiduciary’s negli-

gence or recklessness; (2) the fiduciary conducts a removal or remedial action without providing

proper notice to the appropriate agency; (3) the potential liability results from acts outside the scope of

the fiduciary duties; (4) the fiduciary relationship is fraudulent in that its raison d’être is to avoid li-

ability; or (5) the fiduciary is also a beneficiary, or benefits from acting as fiduciary, in a manner over

and above that considered customary or reasonable for a fiduciary. see also: United States v. New-

mont USA Ltd., 504 F. Supp. 2d 1050, 1061–69 (E.D. Wash. 2007) (concluding, without actually

adopting the “indicia of ownership” test in Long Beach Unified Sch. Dist. v. Dorothy B. Godwin Cal.

Living Trust, 32 F.3d 1364 (9th Cir. 1994), that the United States held sufficient indicia of ownership

in an Indian reservation to be held an “owner” under CERCLA);

1. The defendant acquired title to the property subsequent to the disposal or placement of the hazard-

ous substance.

2. The defendant acquired title to the property through inheritance or bequest.

3. The defendant “provides full cooperation, assistance, and facility access to the persons that are au-

thorized to conduct response actions at the facility (including the cooperation and access necessary for

the installation, integrity, operation, and maintenance of any complete or partial

response action at the facility).”

4. The defendant “is in compliance with any land use restrictions established or relied on in connec-

tion with the response action at a facility.”



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5. The defendant “does not impede the effectiveness or integrity of any institutional control employed

at the facility in connection with a response action.”

With respect to beneficiary ownership for CERCLA purposes, creation of an express trust in Califor-

nia historically vested full title of trust property in the trustee or trustees. The California legislature

repealed this statute in 1986, so the modern rule may now apply. The modern rule holds that creation

of a trust divides title such that the trustee or trustees take legal title, and the beneficiary or beneficiar-

ies take equitable title.

For purposes of evaluating the potential CERCLA liability of a trust beneficiary based on his or her

status as owner, the initial question is whether the equitable interest held by trust beneficiaries is suf-

ficient to support liability.

With respect to whether title was acquired via inheritance or bequest, CERCLA defines neither “in-

heritance” nor “bequest.” CERCLA case law also provides no clear rules or definitions for what ex-

actly constitutes an inheritance or bequest. Reasoning from the dictionary definitions of

“inheritance,” “bequest,” and “devise,” property taken through testamentary trusts or intestate succes-

sion would likely constitute inherited or bequeathed property, as the property interest transfers upon

the death of the prior owner. No federal court opinions addressing this issue of whether inter vivos

trusts or lifetime gifts constitute an inheritance or bequest for purposes of the inheritance or bequest

defense exist. The only authority on point is Tamposi Family Investments, an opinion of the Envi-

ronmental Protection Agency Appeals Board.

In Tamposi, the Appeals Board rejected petitioner’s argument that a gift from a father to a real estate

investment partnership, in which his children were the exclusive partners, should qualify

for the inheritance or bequest defense. Citing Black’s Law Dictionary definitions for “inheritance,”

“bequest,” and “devise,” the Appeals Board found that the text of CERCLA indicated that the inheri-

tance or bequest defense was inapplicable to inter vivos transfers, as the defense only applied to trans-

fers occurring upon death of the prior owner. Since it is the sole authority on point and an analysis of

CERCLA by an arm of the EPA itself, courts considering the issue in the future will likely find Tam-

posi highly persuasive and may defer to the agency’s interpretation. Thus, the best option for settlers

wishing to protect beneficiaries from CERCLA liability during the lifetime of the settlor is to use tes-



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tamentary trusts and devises in wills to transfer interests in impacted property. They should then pro-

vide bequests to beneficiaries that may enjoy limited liability status due to the form of business (such

as an LLC not comprised of beneficiary members). Combining these steps with thoughtful timing of

sales or distributions to occur after cleanup, or in an otherwise protective manner, are also optional

protective measures. However, there is currently no authority as to what structures will be effective.

The most

important fact for beneficiaries to keep in mind is that the estate, and therefore any property in trust,

will always be fully liable if the settlor was personally liable. The question is how to avoid or mini-

mize the personal liability of the beneficiaries. This approach is entirely consistent with the settlor’s

intent and legal status: the settlor owned the property, the settlor was personally liable, and the settlor

intended to give the beneficiary what he possessed during his life. 129 Id.

Although extremely persuasive, the decision is not a perfect interpretation of CERCLA. Tamposi’s

primary flaw is on the issue of inquiry. The Appeals Board cites to the congressional comments on

CERCLA as support for the contention that individuals who take impacted property by inheritance or

bequest must still conduct “reasonable inquiry” into the contamination, even if they have no knowl-

edge of the inheritance or bequest. Id. at 125. Perhaps this was the intent of certain individual

members of Congress, but this failed to make its way into the text of the statue.

Nevertheless, the presence of this language in Tamposi raises the possibility that some level of in-

quiry, albeit a very low level, will be required of owners who take title by inheritance or bequest.

Potential beneficiaries may be able to disclaim property placed in trust for their benefit. See, e.g.,

CAL. PROB. CODE § 15309 (West 2002) (“A disclaimer or renunciation by a beneficiary of all or

part of his or her interest under a trust shall not be considered a transfer under Section 15300 or

15301.”). While an enticing theoretical solution, practically this is not a good option where the prop-

erty value exceeds, or will exceed, the cost of remediation.

The California Code of Regulations addresses taxation rules for changes in ownership in title 18, sec-

tion 462. Section 462.160 pertains to trusts. Subsection (a) of section 462.160 provides the

general rule that transfer of real property interests into trusts, by the settlor or anyone else, is a change

in ownership; subsection (b) provides instances excluded from this rule. Subsection (c)



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provides the general rule that termination of a trust or any portion of a trust, constitutes a change in

ownership, and subsection (d) provides the exceptions to this second general rule. These rules for ex-

clusions and exceptions–for example, those transfers of interests that do not constitute changes in

ownership–are complex and are therefore presented in the Appendix in tabular form in an attempt to

simplify comparisons. While untested in the courts, would-be settlers and/or beneficiaries may be able

to use these rules as a guide for selecting trusts that will make CERCLA owner liability for the bene-

ficiaries less likely, or at least delay such potential liability until such time as the property may be

transferred with less or no risk. Given the foregoing, it appears that the best overall strategy is to an-

ticipate transfers in property, to attempt to structure such transfers to fall within the statutory defenses,

and to preserve and pursue rights against other potentially responsible parties.

CAMERA STELLATA AND “THE BILLION DOLLAR SETTLEMENT”

EPA, DOJ, AIG, Bayer & AstraZeneca, successor to Stauffer Chemical, & Jardine Matheson

Bayer CropScience is with annual sales of about EUR 6.5 billion one of the world's leading innovative

cropscience companies in the area of crop protection (Crop Protection), non agricultural pest-control

(Environmental Science), seeds and plant biotechnology (BioScience).

Aventis CropScience formed through merger of AgrEvo and Rhône-Poulenc Agro. Bayer Crop-

Science formed through Bayer's acquisition of Aventis CropScience. AstraZeneca liable for claim by

Iron Mountain Mine

AstraZeneca was formed on 6 April 1999 through the merger of Astra AB of Sweden and Zeneca

Group PLC of the UK – two companies with similar science-based cultures and a shared vision of the

pharmaceutical industry.

Jardine Matheson (original owner of Mountain Copper Co., Iron Mountain Inv. Co.)

The Group's interests include Jardine Pacific, Jardine Motors, Jardine Lloyd Thompson, Hongkong

Land, Dairy Farm, Mandarin Oriental, Jardine Cycle & Carriage and Astra International. These com-

panies are leaders in the fields of engineering and construction, transport services, insurance broking,

property investment and development, retailing, restaurants, luxury hotels, motor vehicles and related

activities, financial services, heavy equipment, mining and agribusiness. The Group also has a minor-

ity investment in Rothschilds Continuation, the merchant banking house.



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Incorporated in Bermuda, Jardine Matheson Holdings Limited has its primary share listing in London,

with secondary listings in Bermuda and Singapore. Jardine Matheson Limited operates from Hong

Kong and provides management services to Group companies.

LAST CHANCELLOR TO THE CURIA REGIS OF THE ARMANSHIRE

The Act of 1487 (3 Hen. VII.) created a court composed of seven persons, the Chancellor, the Treas-

urer, the Keeper of the Privy Seal, or any two of them, with a bishop, a temporal lord and the two

chief justices, or in their absence two other justices. It was to deal with cases of "unlawful main-

tainance, giving of licences, signs and tokens, great riots, unlawful assemblies"; in short with all of-

fences against the law which were too serious to be dealt with by the ordinary courts. The jurisdiction

thus entrusted to this committee of the council was not supplementary,

therefore, like that granted in 1453, but it superseded the ordinary courts of law in cases where these

were too weak to act. The act simply supplied machinery for the exercise, under special circum-

stances, of that extraordinary penal jurisdiction which the council had never ceased to possess. By an

act of 1529 an eighth member, the President of the Council, was added to the Star Chamber, the juris-

diction of which was at the same time confirmed. At this time the court

performed a very necessary and valuable work in punishing powerful offenders who could not be

reached by the ordinary courts of law. It was found very useful by Cardinal Wolsey, and a little later

Sir Thomas Smith says its object was "to bridle such stout noblemen or gentlemen who would offer

wrong by force to any manner of men, and cannot be content to demand or defend the right by order

of the law."

In 1661 a committee of the House of Lords reported "that it was fit for the good of the nation that

there be a court of like nature to the Star Chamber". Congress in 1989 unanimously passed the WPA.

S.372 legislation would allow access to jury trials and would remove the exclusive jurisdiction of the

U.S. Court of Appeals. Application of Supreme Court Rule 4At the opening of the United States Circuit Court in Boston on May 16, Judge SPRAGUE delivered a

charge to the Grand Jury, in which he defined the state of our laws with reference to the crime of pi-

racy. After citing provisions from the laws of 1790, 1820, 1825, 1846 and 1847, as to what constitutes

the general crime, with the different degrees of penalty, the Judge remarks that these enactments were



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founded upon the clause in the Constitution which gives Congress the power to define and punish pi-

racy. But the constitutional power to regulate commerce also affords a basis for additional penal en-

actments, covering all possible aggressions and depredations upon our commerce. The Judge then lays

down the following important principles, the bearing of which will be sufficiently evident in the pre-

sent crisis:

"These statutes being enacted pursuant to the Constitution are of paramount authority, and cannot be

invalidated or impaired by the action of any State or States, and every law, ordinance and constitution

made by them for that purpose, whatever its name or form, is wholly nugatory and can afford no legal

protection to those who may act under it. But suppose that a number of States undertake by resolution

to throw off the Government of the United States and erect themselves into an independent nation,

and assume in that character to issue commissions authorizing the capture of vessels of the United

States, will such commissions afford protection to those acting under them against the penal laws of

the United States? Cases have heretofore arisen where a portion of a foreign empire -- a colony -- has

undertaken to throw off the dominion of the mother country, and assumed the attitude and claimed the

rights of an independent nation, and in such cases it has been held that the relation which the United

States should hold to those who thus attempt and claim to institute a new Government, is a political

rather than a legal question; that, if those departments of our Government which have a right to give

the law, and which regulate our foreign intercourse and determine the relation in which we shall stand

to other nations, recognize such new and self-constituted Government as having the rights of a bellig-

erent in a war between them and their former rulers, and the United States hold a neutral position in

such war, then the judiciary, following the other departments, will to the same extent recognize the

new nation.

Executive Order 11988 requires federal agencies to avoid to the extent possible the long and short-

term adverse impacts associated with the occupancy and modification of flood plains and to avoid di-

rect and indirect support of floodplain development wherever there is a practicable alternative. In ac-

complishing this objective, "each agency shall provide leadership and shall take action to reduce the

risk of flood loss, to minimize the impact of floods on human safety, health, and welfare, and to re-



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store and preserve the natural and beneficial values served by flood plains in carrying out its responsi-

bilities" for the following actions: acquiring, managing, and disposing of federal lands and facilities;

providing federally-undertaken, financed, or assisted construction and improvements;

conducting federal activities and programs affecting land use, including but not limited to water and

related land resources planning, regulation, and licensing activities.

STRIKE THE CONSENT DECREE, VOID AND VACATE, REMISSION, REVERSION,

DETINUE SUR BAILMENT. QUANTUM DAMNIFICATUS REMEDY DEMANDED

CONDEMNATION OF THE INTERLAKES MANAGEMENT AREA, ADVERSE CLAIMS

All premises having been duly considered, Relator now moves this honorable Court, on behalf of the

United States of America State of California as private attorneys general and Auditor-Inspector General:

WRIT OF QUO MINUS - QUANTUM DAMNIFICATUS QUARE IMPEDIT

The name of a writ directed by the king to the sheriff, by which he is required to command certain

persons by name to permit him, the king, to present a fit person to a certain church, which is void, and

which belongs to his gift, and of which the said defendants hinder the king, as it is said, and unless,

etc. then to summon, etc. the defendants so that they be and appear, etc.

Congress has the right to make any law that is ‘necessary and proper’ for the execution of its enumer-

ated powers (Art. I, Sec. 8, Cl. 18). Signature:________________________________ in loco parentis

/s/ John F. Hutchens, parens patriae; Tenant in-Chief; Warden of the Arboretum, Gales & Stannaries

I, John F. Hutchens, hereby state that the same is true of my own knowledge, except as to matters which are

herein stated on my own information or belief, and as t those matters, I believe them to be true.

Date: October 28, 2010_ Signature:______ _________________________ parens, parens, parens.

Verified affidavit: /s/ John F. Hutchens, Chancellor & High Warden, Palatine & General Commissioner

Grantees Agent for Mr. T.W. Arman, expert, Mormaer & Special Deputy Levying Officer of Record.

ENVIRONMENTAL COMMAND OFFICER - PRIVATE INSPECTOR GENERAL -MINISTER

FACILITY COMPLIANCE AUDITOR, EXCHEQUER, D.A.D. OF IRON MOUNTAIN MINE,

HUMMINGBIRD INSTITUTE – IRON MOUNTAIN HAZARD & REMEDIATION DIRECTOR

TENANT-IN-CHIEF OPERATING OFFICER / CHANCELLOR – FREEMINERS’ UNIVERSITY

CURATOR OF THE ARMAN CONSERVATORY / JOINT VENTURER – ad hoc & ad litem.

http://www.blm.gov/ca/st/en/fo/redding/recreationmain/reddingrecreationohvmain.html

http://www.ironmountainmine.com/Eastern%20District%201988%20JOINDER%20&%20DISMISSAL.pdf

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