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Quote of the Day - I have never let my schooling interfere with my education. - Mark Twain (Happy Birthday)
The Three R's Of Remediation: Read, Read, Read
We are getting taken to school by the Sixth Circuit Court of Appeals.
We are being taught the ABC's of CERCLA.
In two cases issued by the Sixth Circuit just before Thanksgiving, GenCorp v. Olin and Village of Milford v. K-H Holding Corp., we get back to the basics.
The two cases are great primers on the federal law of contamination, and are worthwhile reading for anyone involved in litigating CERCLA cases. The GenCorp action is now going on its twelfth year in litigation.
Yes, I said 12 years.
First lesson: these cases just keep going and going.
Second, the relationships that parties devise just defy the imagination. Just read the factual summary in the GenCorp case. If you can remember the twists and turns of that relationship, send me the flowchart you created. Next, what's really interesting about this case is the outcome. Look at it this way: the Court recites that Olin had incurred $65 million in remediation costs, apparently so far. It then finishes the factual summary with this little tidbit - in 1992, Olin began the remediation plan.
Presumably, the property is far from being clean.
The Sixth Circuit went out of its way to give us a short course in CERCLA law. But it sent the case back to the District Court to determine whether Olin will incur future costs, and thus be entitlted to a declaratory relief determination. It said it didn't have enough information in the record.
That may be, but if the Sixth Circuit knows so much about contamination, and the case (and cleanup) has already stretched into 12 years, why wouldn't the Court think that Olin will be spending more money to cleanup the property? Did I miss something in the opinion?
The next case, Village of Milford, is likewise a good primer on CERCLA. But the interesting aspect of this case is its determination that the money spent by attorneys performing non-attorney work, such as investigating the parties who may be PRPs, can be recovered as attorneys fees, an issue that was previously up in the air in the Sixth Circuit.
I know, you're riveted. But, if you practice in the area or work for someone with these problems, this is good stuff.
Joni Mitchell Moves To Oregon
Things are changing in Oregon, thanks to Measure 37.
Looks like landowners may get compensation if the government won't allow them to develop their land. A lot of landowners have been waiting a long time for one or the other.
It's a common battle in rural areas. Preserve rural land or develop it.
What's your position: open space or pave over paradise (just to quote a song, not to express an opinion)?
What's Your Handicap?
According to today's Courthouse News Service," A bad golfer has been sued for negligence in New York State Court. Defendant allegedly 'aimed and struck (the ball) so inaccurately' that it was 'beyond the scope of reasonable risk' when it whacked and injured the plaintiff."
Keep me off the course.
Land Use In The Courtroom Limelight
While we weren't watching last week, a jury in Santa Barbara was.
The jury awarded some $5.5 million against the County's Planning Department, two former employees, one current employee and a consultant of the County.
Personally against the former and current employees and consultant, plus punitives. The jury sent a message. This case has been hotly litigated from the beginning, and it's not over yet.
It stems from the County's efforts to designate some 95 of 262 acres as wetlands and prevent Adams Bros. Farming from farming the land. Seems that the jury thought the wetlands delineation was a foregone conclusion and that the land was not actually wetlands.
The County had big plans for its
Orcutt Community Plan, but the jury saw through those plans, and held for the farmers whose land got redesignated. They found that the County's actions to rezone the farmers' lands as wetlands violated the farmers' rights, and were intentional, despicable and done with "malice, oppression or fraud."
The USEPA is pursuing a criminal action in LA against the Adams Brothers for filling the wetlands. Although I haven't seen that case, my guess is that with this jury verdict, the USEPA's case just got a lot harder to prove.
New Channels To Keep You Informed
The long weekend's over for most, but some are still trapped in Reno.
Here at MIPTC, we've been busy this holiday weekend. We've added a Tech channel, where I will occasionally review tech-related items. You know, gizmos and gadgets, and anything that plugs in. Sometimes even things that don't plug in.
It will give you some ideas, but if you buy her a big screen TV for the holidays, I'm not going to be able to help you with that one, buddy.
Plus, we've added a new feature called "How To Get Sued." Right now, I've populated it with selected items from old MIPTC posts that both took a lighter look at the law and at the same time provided some educational value on what not to do in the world of law. It's still in development, so take an occasional look there too. I'll be posting every once in a while.
Since lawyers are constantly disclaiming liability, I figured I might as well come right out and tell you how to go about getting sued.
You won't be able to blame that one on me, either.
Sermonizing for the Government
Those Thanksgiving Proclamations are pretty long-winded.
I can't imagine what they'd be like tacked on to a Congregational sermon.
Haven't caught my drift yet?
Neither had I when my mother told me today. Let me explain. She doesn't have a computer. She's 72. So, I've tried to explain to her about this blog, but she only gets it when I equate it with a column in a newspaper.
She asked me what I wrote about for Thanksgiving, so I told her. You can skip down to the day before yesterday and read it.
Once I told her about the proclamations, she told me that my father, God rest his soul1, was required to read government proclamations during his Sunday morning church services.
These readings happened in the First Congregational Church in Middleboro, Massachusetts, before I was born. Every proclamation that was issued by the President, Governor, Borough or Town fathers. It was expected.
As you can imagine, she was referring to the way it was in the fifties.
Now, you're reading them in a blog. I had no idea I was repeating history.
1 Imagine my shock when I found my father's obituary on the internet. I was there for the funeral and burial, and remember it quite clearly. But there's nothing like having it emblazoned into my forehead when I looked at the result of my vanity search using my father's name and finding his (previously undiscovered) obituary on the internet.
There are just some reminders I'm not ready for, especially around the holidays.back
Perry Mason for AG and Madonna for Secretary of State
Maybe Bush should reconsider his nomination of Condoleezza Rice. Excuse me, I meant Dr. Rice.
I think he may want to consider Madonna. You think I'm joking? Not at all. I'm completely serious.
Right before Thanksgiving, I read that Madonna had expressed her views on terrorism.
After all, Madonna did attend the University of Michigan, where she studied ... dance. Oh, did I forget to mention that she dropped out? But, she did graduate from high school. Now I'm not here to offend Madonna fans. I enjoy some of her music. Neither I am here to offend college dropouts or high school graduates. Or, for that matter, anyone.
I'm just trying to make a singular point about why we listen to celebrities comment on things other than their celebrity or their chosen field of expertise.
In fact, I could have picked any one of a number of celebrities who make political comments. Admittedly, no one is immune from gaffes.
But I wanted to stick with celebrity comments. You can check the politicians, if you'd like.
Before we do, however, let's take two slight detours just to make sure I've got my head screwed on straight. First of all, there are exceptions to the rule - we already have celebrity politicians, some revered, some TV stars turned Congressmen, and even a Senator turned TV star and movie star (Ok, he was a movie star first).
Second, I don't think for a minute that my comments on the arts performed by celebrities would be reported in worldwide media, despite whatever education I may have. [Even though I did play the Stage Manager in Thorton Wilder’s play Our Town in 11th grade, a role I seem to continue in today]. For that matter, think back to how many politicians you’ve heard or read about expressing their views on the arts. Stumped? How about the other way around? Probably no shortage on the latter.
The lines have blurred between celebrities and politicians. But that doesn't mean the line between celebrities and politics should blur, too. Somewhere along that second line though, we seem to have let it.
Otherwise, why would the BBC have reported Madonna's comments? Are the Brits just as star struck as we seem to be?
The question I pose is whether we should lend credence to celebrity comments on issues outside the scope of their expertise? Should we even listen?
If you agree that perhaps we should not, then ask yourself this question: what does that tell us about journalists, news reporters, editors and even networks that print, reprint and broadcast this stuff? Do they have real questions or just fluff?
Or, more likely, should we just follow the media money?
Here’s another way to look at it. Could Perry Mason really practice law?
A History of Thanksgiving Proclamations
The First Thanksgiving Proclamation issued by the governing council of Charleston, Massachusetts, is when the Pilgrims got Thanksgiving started. Think about it. Back then, Thanksgiving was when it was warm enough in the New England colonies to actually eat outside with the Indians. Here's what Council Clerk Edward Rawson wrote:
June 20, 1676
"The Holy God having by a long and Continual Series of his Afflictive dispensations in and by the present Warr with the Heathen Natives of this land, written and brought to pass bitter things against his own Covenant people in this wilderness, yet so that we evidently discern that in the midst of his judgements he hath remembered mercy, having remembered his Footstool in the day of his sore displeasure against us for our sins, with many singular Intimations of his Fatherly Compassion, and regard; reserving many of our Towns from Desolation Threatened, and attempted by the Enemy, and giving us especially of late with many of our Confederates many signal Advantages against them, without such Disadvantage to ourselves as formerly we have been sensible of, if it be the Lord's mercy that we are not consumed, It certainly bespeaks our positive Thankfulness, when our Enemies are in any measure disappointed or destroyed; and fearing the Lord should take notice under so many Intimations of his returning mercy, we should be found an Insensible people, as not standing before Him with Thanksgiving, as well as lading him with our Complaints in the time of pressing Afflictions:
The Council has thought meet to appoint and set apart the 29th day of this instant June, as a day of Solemn Thanksgiving and praise to God for such his Goodness and Favour, many Particulars of which mercy might be Instanced, but we doubt not those who are sensible of God's Afflictions, have been as diligent to espy him returning to us; and that the Lord may behold us as a People offering Praise and thereby glorifying Him; the Council doth commend it to the Respective Ministers, Elders and people of this Jurisdiction; Solemnly and seriously to keep the same Beseeching that being perswaded by the mercies of God we may all, even this whole people offer up our bodies and soulds as a living and acceptable Service unto God by Jesus Christ."
But pretty soon, others got into the act. Governor William Bradford of Plymouth Plantation issued this Proclamation on the Thanksgiving of the Pilgrims in July 30, 1623:
"But here I cannot but make a pause and stand half amazed at this poor people's present condition; and so I think will the reader, too, when he considers it well. Having thus passed the vast ocean, and that sea of troubles before while they were making their preparations, they now had no friends to welcome them, nor inns to entertain and refresh their weather beaten bodies, nor houses, much less towns, to repair to.
As for the season, it was winter, and those who have experienced the winters of the country know them to be sharp and severe, and subject to fierce storms, Besides, what could they see but a desolate wilderness, full of wild beasts and wild men; and what multitude there might be of them they knew not! Neither could they, as it were, go up to the top of Pisgah, to view from this wilderness a more goodly country to feed their hopes; for which way soever they turned their eyes (save upward to the Heavens!) they could gain little solace from any outward objects. Summer being done, all things turned upon them a weather-beaten face; and the whole country, full of woods and thickets, presented a wild and savage view.
If they looked behind them, there was a mighty ocean which they had passed and was now a gulf separating them from all civilized parts of the world.
What, then, could now sustain them but the spirit of God and His grace? Ought not the children of their fathers rightly to say: Our fathers were Englishmen who came over the great ocean, and were ready to perish in this wilderness; but they cried unto the Lord and He heard their voice, and looked on their adversity. Let them therefore praise the Lord, because He is good and His mercies endure forever. Yea, let them that have been redeemed of the Lord, show how He hath delivered them from the hand of the oppressor. When they wandered forth into the desert-wilderness, out of the way, and found no city to dwell in, both hungry and thirsty, their soul was overwhelmed in them. Let them confess before the Lord His loving kindness, and His wonderful works before the sons of men."
So how did it get to be the third Thursday of November if the Pilgrims wanted it in June? Well, George Washington may have had something to do with it (it is a common misperception that Lincoln started the November tradition):
"Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits and humbly to implore His protection and favor; and Whereas both Houses of Congress have, by their joint committee, requested me "to recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness:
Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted; for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.
And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally, to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.
Given under my hand, at the city of New York, the 3rd day of October, A.D. 1789"
Now, you're beginning to get the idea that Presidents like to proclaim things. Not to be left out, we have this one from Honest Abe:
"It is the duty of nations as well as of men to own their dependence upon the overruling power of God; to confess their sins and transgressions in humble sorrow, yet with assured hope that genuine repentance will lead to mercy and pardon; and to recognize the sublime truth, announced in the Holy Scriptures and proven by all history, that those nations are blessed whose God is the Lord (Psalm 33:12). We know that by His divine law, nations, like individuals, are subjected to punishments and chastisements in this world. May we not justly fear that the awful calamity of civil war which now desolates the land may be a punishment inflicted upon us for our presumptuous sins, to the needful end of our national reformation as a whole people?
We have been the recipients of the choicest bounties of heaven; we have been preserved these many years in peace and prosperity; we have grown in numbers, wealth and power as no other nation has ever grown.
But we have forgotten God. We have forgotten the gracious hand which preserved us in peace and multiplied and enriched and strengthened us, and we have vainly imagined, in the deceitfulness of our hearts, that all these blessings were produced by some superior wisdom and virtue of our own. Intoxicated with unbroken success, we have become too self-sufficient to feel the necessity of redeeming and preserving grace, too proud to pray to the God that made us.
It has seemed to me fit and proper that God should be solemnly, reverently and gratefully acknowledged, as with one heart and one voice, by the whole American people. I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November as a day of Thanksgiving and praise to our beneficent Father who dwelleth in the heavens."
President Abraham Lincoln, October 3, 1863.
FDR, though, was the one who changed the date in 1939, and got the nation upset. You can even see some of the frustration expressed by Americans.
Here's what Franklin Delano Roosevelt had to say:
"By the President of the United States of America - A Proclamation:
I, Franklin D. Roosevelt, President of the United States of America, do hereby designate Thursday, the twenty-third of November 1939, as a day of general thanksgiving.
More than three centuries ago, at the season of the gathering in of the harvest, the Pilgrims humbly paused in their work and gave thanks to God for the preservation of their community and for the abundant yield of the soil. A century and a half later, after the new Nation had been formed, and the charter of government, the Constitution of the Republic, had received the assent of the States, President Washington and his successors invited the people of the Nation to lay down their tasks one day in the year and give thanks for the blessings that had been granted them by Divine Providence. It is fitting that we should continue this hallowed custom and select a day in 1939 to be dedicated to reverent thoughts of thanksgiving.
Our Nation has gone steadily forward in the application of democratic processes to economic and social problems. We have faced the specters of business depression, of unemployment, and of widespread agricultural distress, and our positive efforts to alleviate these conditions have met with heartening results. We have also been permitted to see the fruition of measures which we have undertaken in the realms of health, social welfare, and the conservation of resources. As a Nation we are deeply grateful that in a world of turmoil we are at peace with all countries, and we especially rejoice in the strengthened bonds of our friendship with the other peoples of the Western Hemisphere.
Let us, on the day set aside for this purpose, give thanks to the Ruler of the Universe for the strength which He has vouchsafed us to carry on our daily labors and for the hope that lives within us of the coming of a day when peace and the productive activities of peace shall reign on every continent.
In witness whereof, I have hereunto set my hand and caused the seal of the United States of America to be affixed.
Done at the City of Washington this thirty-first day of October, in the year of our Lord nineteen hundred and thirty-nine, and of the Independence of the United States of America the one hundred and sixty-fourth.
Franklin D. Roosevelt."
What happened next? In 1941, he changed it back to the fourth Thursday of November, where it remains today.
If you want a (mostly) historically accurate summary of Thanksgiving history, you'll have to look a long time and talk to a lot of people. It's out there. And yes, practically every President has issued a Proclamation.
Me? Oh yes. Here's mine: "Happy Thanksgiving to you and yours. May you remember and give thanks for everything you have."
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