Quote of the Day - A diamond with a flaw is better than a common stone that is perfect.
Inventing SlagacreIn law school, property law professors referred to hypothetical parcels of property as Blackacre and Whiteacre (see A.2.). As budding lawyers, we got used to those words and adopted them as part of our jargon.
Thanks to a new pollution case, we now have another word to add to our lexicon: Slagacre. The Ninth Circuit invented this new reference in its recent decision of Western Properties Service Corporation v. Shell Oil et al. I searched for "Slagacre" in other cases, and it's a first.
But the case is more important than the invention of this word. It stands for the proposition that an innocent purchaser still bears equitable liability for the cleanup. In the trial, Western had won back from the oil companies the $5,000,000 it spent on cleanup. But the Ninth Circuit didn't buy Western's argument that it was completely exempt from cleanup liability, and remanded the case to the lower court to reassess the equitable liability with Western in the mix.
Is Your Statute of Limitations Running?Some people say that the nation's toxic cleanup law, CERCLA, has no statute of limitations. To some degree, that's true. Liability can extend far into the past.
But, now we have an answer on when you can be sued after someone (the USEPA, a working group of PRPs) spends money to cleanup toxic contamination.
And behind door number two, the answer is: The limitations period for bringing an initial suit for recovery of remedial action costs under CERCLA cannot accrue until after the final
adoption of the remedial action plan required by the statute. Got that? But don't rush out there, it takes a long time to approve a RAP.
Here's a bit of history on the topic, and the Ninth Circuit's decision. Essentially, the statute doesn't run for a long time, but it does run.
Maybe you should go out and catch it.
Copyright Infringment ReduxWe've been cited a lot recently. My partner, Craig Lindberg, briefed and argued the Fonavisa v. Cherry Auction case, and I helped a little bit on the brief. The case was precedent for the Napster decisions, and has been cited frequently on the subject of vicarious and contributory copyright infringement.
Citations have been in UMG Recordings, Inc. v. Sinnott (subscription required to view), and Ellison v. AOL, just to name two.
The premise of the Fonavisa v. Cherry Auction case was that swap meet owners were knowingly allowing vendors to sell unauthorized copies of Fonavisa's music. Fonavisa had conducted several sting operations and purchased copies of the unauthorized music from vendors at the swap meet.
Fonavisa next requested the swap meet owners to terminate their relationship with the offending vendors. Cherry Auction elected not to, and we sued and won. It wasn't much of a stretch for the Ninth Circuit Court of Appeals to then decide that Napster, the online music file swapping service, was doing the same thing. Now, Napster operates legally, paying royalties on the songs that are swapped/purchased.
The Fonavisa case has gone much further than we originally anticipated.
Can You Get Wine from Here to There?Shipping wine between states is unnecessarily complicated. There's a mish-mash of conflicting state laws about what wines can be shipped from who to where. It's a nightmare.
You're better off sending a gift certificate.
On Friday, a New York upheld another ban on shipping wine from New York. Add to this complicated mess the fact that a federal agency taxes exported wines.
According to the Volcano Winery (no, I'm not kidding) in Hawaii, they can ship to "reciprocal states." Just in case you wanted some lava wine.
Click here, and look below the chart for an in-depth background of the whole issue.
My head hurts trying to sort through this mess of laws. I think I'll have a drink.
Taking Water and Paying for ItLast December, when we were all bundled up for our winter nap, things were happening in D.C., and we weren't paying attention. But now, the news is out. The US Court of Claims (where you go if you have a claim against the federal government) decided that farmers in two California counties are entitled to just compensation for water taken from their land.
Sounds kind of normal, doesn't it?
Except that the water was taken to protect endangered winter-run Chinook salmon and threatened delta smelt between 1992 and 1994. The USFWS withheld billions of gallons from farmers in California's Kern and Tulare counties. But, since taking the water constituted a "taking" under the 5th Amendment, the government now has to pay the damages for that condemnation.
About $26 million. That's a lot of fish. The cash will go to about 15 farmers in the Tulare Lake Basin water district. Hansen Ranches, Lost Hills Water District and Wheeler Ridge-Maricopa Water Supply District were also affected by the loss of water.
The NRDC is not happy with the lawsuit, claiming it is just a backdoor attack on the Endangered Species Act because condemnation payments by the federal government to affected parties will prevent needed listings of endangered species.
I thought that's what the Constitution was supposed to provide. Maybe I missed something.
Big Stink Over Cruise Lines' SewageRun this search, and Royal Caribbean pops up on Google as the number two pick.
A non-profit group, Oceana, bought ads on Google that criticized Royal Caribbean for its treatment of sewage at sea. In return, Google pulled Oceana's ads. Google's Press releases provide no insight. Oceana, though, has plenty to say.
Royal Caribbean is noticeably silent, although the company touts $600,000 in new grants to marine organizations. Oceana, is not among them, however.
It's a problem that the U.S. Coast Guard has dealt with before. Maybe it's not just a big stink over nothing.
Watch where you swim.
Clean Air in Planes? Who Knows?I fly. A lot. Never got interviewed for one of those person-in-the-airport commercials though. But if I could convert my frequent flyer miles to cash, I could almost retire. So, you'll understand why these stories on the quality of in-flight cabin air distress me.
Here's the first news flash: we don't know enough about the quality of air in airplanes. No kidding! Tell me something I don't know.
But, it gets better. Pilots supposedly turn down the air circulation on planes to save fuel. Pesticides sprayed in the cabins allegedly contain substances banned in the U.S. So says Which? magazine (see the second article down). Great. You can do your own search at Which? (free 30-day trial, signup required).
Maybe it's time to get one of those personal, wearable air purifiers. Nah. Read this first. Not a good choice. Probably no good ones if you have to get on a plane.
Just don't sneeze.
Ride 'em Cowboy - Snowmobiles Back in ActionSnowmobiles. I've written so much about them that you think I owned one. Not so. Never even ridden on one. Not that I have no desire to - I think it would be fun - but I've just never had the chance.
So, if you've followed the story here before, you're up to speed. If not, click on the link and read up if you want to know more. In any event here's the short version:
In the previous episodes on snowmobiles (to borrow a phrase from TV), the environmentalists have been trying to stop the use of the machines in Yellowstone National Park. They went to Washington, D.C. to find a judge to hear the case. Not surprisingly, the judge limited the use of snowmobiles this winter. That was the story up through today. Now there's another twist in the saga.
Not satisfied with the D.C. judge's ruling, the snowmobilers went to their home state, Wyoming to find a sympathetic judge.
They did. The Wyoming judge just issued an injunction that effectively reinstated the snowmobilers to Yellowstone.
Now, the machines can blaze down trails throughout the Park.
Ride 'em cowboy.