May It Please The Court
Quote of the Day - If some people got their rights, they would complain of being deprived of their wrongs.
Want Some Ginsu Knives?Your phone is safe again. The Tenth Circuit Court of Appeals upheld the national do not call registry last week. You can read the opinion here, and the New York Times article, too.
But, you're mailbox is in trouble. The Court of Appeals told the telemarketers that they could still contact us by "direct mail or other means of advertising." (page 8 of the opinion above)
In my mind, it's just as much of an affront to get junk mail as it is to get "junk" telephone calls. I can't wait. I'll open up my mailbox and a flood of junk will flow out. I have a hard enough time finding the bills I'm supposed to pay as it is.
But, if you'd like to do something about junk mail, check out these sites: Do it yourself: stop junk mail, How to get rid of junk mail, and How did they get my address?
Want to buy some Ginsu knives?
New News Source For California WaterEvery once in awhile, something comes along that is worth passing along. Today, I ran across California Water News published by a large environmental consulting firm, Brown & Caldwell.
Perhaps it's a blog, perhaps it's more newsletter, but it is certainly an interesting read.
Gone Fishing No MoreThe No Fishing lamp has been hung around 175 square miles around the Channel Islands. In 2002, the California Department of Fish and Game first voted the fishing ban in place.
Then, in December 2002, a coalition including the United Anglers of Southern California and a variety of commercial fishermenís groups filed suit against the proposed Channel Islands reserves. On Tuesday, they lost their bid to overturn the closure.
In an unpublished opinion, the Court of Appeal in Ventura ruled: "[the fishermen] have no constitutional right to deplete or destroy a fish preserve, in this instance, a marine sanctuary." If you'd like to know more about the whole issue, check out this site. It's as comprehensive a list as I've seen.
Now we know: fishing is not a constitutionally protected right. I'm glad my grandfather, God rest his soul, never heard that. He probably rolled over in his grave, though.
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.