"Of all the concepts known to American law,only the public trust doctrine seems to
have the breadth and substantive content which might make it useful as a tool of
general application for citizens seeking to develop a comprehensive legal approach to resource management problems."
– Joseph L. Sax
The Public Trust Doctrine is also persuasive because it captures timeless values that are being rediscovered by the public in this current environmental reawakening.
The beauty of the doctrine is that it makes old values new again; it is the
wisdom of the ages applied to modern challenges. Its power in advocacy is
that it is an old, entrenched doctrine. The idea that gov'ts must manage public resources for the benefit of present and future generations captures the idea of sustainability and reflects our extended connection to those who succeed us.
Click on title above to go to "The Public Trust Doctrine Manual," having to do mostly, but not exclusively, with water issues, but can be applied to almost any resource on state or federal public lands....
http://www.progressivereform.org/articles/CPR_Public_Trust_Doctrine_Manual.pdf
Monday, November 2, 2009
Cal. Court of Appeals: Public Trust Extends to Wildlife, Plaintiffs Must Sue Enforcement Agency for Breach
The California Court of Appeals, First District (San Francisco and other Northern California counties) in Center for Biological Diversity, Inc. v. FPL Group, Inc., No. A116362 (Sep. 18, 2008) held that the "public trust" is enforceable by the public against the government, and that wildlife is subject to the trust.
The plaintiffs brought suit against the owners and operators of electricity-generating wind turbines at Altamont Pass in Alameda county, asserting the windmills injured birds in violation of the public trust doctrine. The trial court dismissed the action because the plaintiffs sued the wrong defendants on the wrong cause of action. The court of appeals agreed, holding (1) birds and other wildlife are part of the "public trust," (2) that plaintiffs could enforce the trust, but (3) they could only sue the trustee of the trust (the government) and not parties alleged to be harming the trust.
The court held "While the public trust doctrine has evolved primarily around the rights of the public with respect to tidelands and navigable waters, the doctrine is not so limited." Slip op. at 8. The court acknowledged that existing public trust decisions deal with bodies of water as habitat for wildlife, but no decision has dealt with whether the wildlife itself is subject to the trust. Relying on older cases dealing with who owns wild animals, the court held the public trust because "whatever its historical derivation, it is clear that the public trust doctrine encompasses the protection of undomesticated birds and wildlife. They are natural resources of inestimable value to the community as a whole." Slip op. at 13.
The court, however, concluded that although members of the public may sue to enforce the public trust, the proper defendant is not the party alleged to be causing harm to the trust corpus, but rather the governmental agency charged with protection of the trust:
We thus reject the conclusion of the trial court that private parties may not invoke the public trust doctrine “beyond the traditional public trust interest in navigable and tidal waters and tidelands.” That is not to say, however, that plaintiffs are entitled to maintain this action in the manner they have framed it. The defect in the present complaint is not that it seeks to enforce the public trust, but that it is brought against the wrong parties. Plaintiffs have brought this action against the windmill operators whose actions they allege are destroying natural resources protected by the public trust. Plaintiffs have not proceeded against the County of Alameda, which has authorized the use of the wind turbine generators, or against any agency such as the California Department of Fish and Game that has been given the statutory responsibility of protecting the affected natural resources. When the trial court indicated its intention to grant judgment on the pleadings and dismiss the action, no request was made for leave to amend to state a claim against any such party.
Under traditional trust concepts, plaintiffs, viewed as beneficiaries of the public trust, are not entitled to bring an action against those whom they allege are harming trust property. The trustee charged with the responsibility to implement and preserve the trust alone has the right to bring such an action....Thus, analogizing this action to the enforcement of a traditional trust agreement, the action must be brought against the appropriate representative of the state as the trustee of the public trust.
Slip op. at 16-17 (footnote omitted). The court held that government agencies must have input and the court pointedly reached no conclusion regarding whether there have been any harm to the public trust, or whether those agencies have appropriately balanced the interests.
Posted on September 18, 2008 in ▪ Administrative law, ▪ Environmental law, ▪ Water rights | Public trust | Permalink
http://www.inversecondemnation.com/inversecondemnation/2008/09/cal-court-of-appeals-public-trust-covers-wildlife-plaintiffs-must-sue-enforcement-agency.html
The plaintiffs brought suit against the owners and operators of electricity-generating wind turbines at Altamont Pass in Alameda county, asserting the windmills injured birds in violation of the public trust doctrine. The trial court dismissed the action because the plaintiffs sued the wrong defendants on the wrong cause of action. The court of appeals agreed, holding (1) birds and other wildlife are part of the "public trust," (2) that plaintiffs could enforce the trust, but (3) they could only sue the trustee of the trust (the government) and not parties alleged to be harming the trust.
The court held "While the public trust doctrine has evolved primarily around the rights of the public with respect to tidelands and navigable waters, the doctrine is not so limited." Slip op. at 8. The court acknowledged that existing public trust decisions deal with bodies of water as habitat for wildlife, but no decision has dealt with whether the wildlife itself is subject to the trust. Relying on older cases dealing with who owns wild animals, the court held the public trust because "whatever its historical derivation, it is clear that the public trust doctrine encompasses the protection of undomesticated birds and wildlife. They are natural resources of inestimable value to the community as a whole." Slip op. at 13.
The court, however, concluded that although members of the public may sue to enforce the public trust, the proper defendant is not the party alleged to be causing harm to the trust corpus, but rather the governmental agency charged with protection of the trust:
We thus reject the conclusion of the trial court that private parties may not invoke the public trust doctrine “beyond the traditional public trust interest in navigable and tidal waters and tidelands.” That is not to say, however, that plaintiffs are entitled to maintain this action in the manner they have framed it. The defect in the present complaint is not that it seeks to enforce the public trust, but that it is brought against the wrong parties. Plaintiffs have brought this action against the windmill operators whose actions they allege are destroying natural resources protected by the public trust. Plaintiffs have not proceeded against the County of Alameda, which has authorized the use of the wind turbine generators, or against any agency such as the California Department of Fish and Game that has been given the statutory responsibility of protecting the affected natural resources. When the trial court indicated its intention to grant judgment on the pleadings and dismiss the action, no request was made for leave to amend to state a claim against any such party.
Under traditional trust concepts, plaintiffs, viewed as beneficiaries of the public trust, are not entitled to bring an action against those whom they allege are harming trust property. The trustee charged with the responsibility to implement and preserve the trust alone has the right to bring such an action....Thus, analogizing this action to the enforcement of a traditional trust agreement, the action must be brought against the appropriate representative of the state as the trustee of the public trust.
Slip op. at 16-17 (footnote omitted). The court held that government agencies must have input and the court pointedly reached no conclusion regarding whether there have been any harm to the public trust, or whether those agencies have appropriately balanced the interests.
Posted on September 18, 2008 in ▪ Administrative law, ▪ Environmental law, ▪ Water rights | Public trust | Permalink
http://www.inversecondemnation.com/inversecondemnation/2008/09/cal-court-of-appeals-public-trust-covers-wildlife-plaintiffs-must-sue-enforcement-agency.html
NA Family Sues DOI, BLM, BP Oil, in the Fed Ct of Claims (Breach of Trust / Mismanagment)
Why can't we?
Oenga heirs sue federal government over lease
- Heirs of Andrew Oenga, Inupiat, have initiated a historic $180 million lawsuit claiming the U.S. Interior Department failed to make equitable lease payments for oil that passed over the family;s property in Prudhoe Bay in Alaska's North Slope. Their case may be the first in which a family has brought suit against the federal government.
By David Melmer / Indian Country Today
Story Published: Nov 13, 2006
Story Updated: Sep 10, 2008
PRUDHOE BAY, Alaska - An Inupiat family may be the first family ever to file suit against the federal government for allegedly mismanaging a lease agreement with an oil company.
The family, descendants of Andrew Oenga, claims the federal government, specifically the Department of the Interior and BIA, failed to properly protect the family;s right to equitable lease payments for oil that passed over the property.
If the family prevails in the U.S. Court of Federal Claims, the financial award to the Oenga family could be an estimated $180 million. British Petroleum held the lease to the property over the past decade and is included as an interested party to the lawsuit. Any financial award would come from BP, according to the lawsuit.
''We are doing the only thing we could do. We put our heads together and decided to fight for what we believe in,'' said Joe Delia, spokesman for the Oenga family descendants.
''The federal government has been screwing over Natives since they came here; it has got to stop somewhere, there has to be justice somewhere,'' he said.
In 1971, Andrew Oenga applied for and received an allotment, located at Prudhoe Bay on the North Slope of Alaska. In the late 1980s the federal government negotiated a lease agreement with the oil companies. That negotiation was conducted in English and Oenga spoke only Inupiat, the lawsuit states.
The original lease allowed the oil companies, specifically BP and related subcontracted companies, to run a pipeline and road across the Oenga property; but the lawsuit claims that appraisals did not include appropriate royalty rates, therefore an arbitrary and lower rate was given to the property.
The original agreement was for a pipeline and road, but a drilling pad was constructed on the property later and an appraisal was not completed for that procedure, the lawsuit claims. Oil was subsequently extracted at the Oenga property location and BP paid only one-tenth of 1 percent for the right to extract the oil; the royalty rate, the family argues, should have been set at more than 4 percent, which was set by federal code. In addition, the lease agreement states that interest on unpaid royalties is to be assessed at 18 percent. The state has claim to the oil and gas rights, so the state would receive 12.5 percent of the royalties.
According to the legal documents, the federal government knew that BP intended to use the land for a multiple-head drilling pad, but an appraisal does not take that into account. Under federal regulations, appraisals must be completed every four or five years; the complaint filed in court claims that no appraisal has been conducted for the 2006 - '09 period. The family also claims that other appraisals were given to them late.
In 2005, the family demanded the secretary of the Interior give notice of default and of breach of failure to perform or comply regarding the leases. The government, the complaint states, did not issue any notice.
The complaint states that BP benefited from mismanagement of the lease agreements by Interior and therefore BP should be held financial liable.
The Oenga family is traditional. Their ancestors have occupied that region of the continent for thousands of years and, until recently, family members has lived a traditional subsistence lifestyle.
''The Inupiat community goes hunting and whaling and provides for the entire community, like living the old ways of living and taking care of each other. We go out and help, seal hunting and whale hunting. We lived and got the experience of the Indian way of life,'' Delia said.
Delia said the family is not allowed to hunt, fish or even visit the land. ''The have been taking advantage of the family for a long time, we want to see justice. They are taking a lot of oil out of there.'' he said.
A sod house is located on the property where his mother was born. ''We have to get permission to even go over there,'' Delia, who lives in Anchorage, said.
''There are eight of us in the lawsuit, but there are more descendants. Grandfather wanted a future for his family; that's what life is all about up here, taking care of family and providing for them,'' Delia said.
Delia worked for the oil industry, as do many people in that area. He drove a hazardous waste truck, but the hours were too much and ''I lost family over the work since I was never home,'' he said. He now works for the community in Anchorage.
There used to be priority hiring for the Alaska Natives in the oil fields, but Delia said it is hard for many of them to get to the fields now. Only a few small villages are within the region.
The Oenga family descendants also assert that BP has not been a good steward of the land by not cleaning up oil spills and not repairing corroded pipes. In March, a leak in a BP Exploration Alaska pipeline at Prudhoe Bay resulted in the North Slope's largest oil spill on record. Other spillages from pipelines have been reported by BP, but the March incident did not prompt the filing of this lawsuit, the Oenga family claims.
For oil or gas leases, federal law mandates that Interior collect a royalty rate of 16.66 percent of the value of production. The caveat to that law is that the secretary has a right to negotiate a lesser amount if it is in the best interest of the allottee.
''Neither the Secretary of Interior, nor his designee, has ever made a determination that it is in the best interests of the Plaintiffs to receive a royalty or rent less than provided by [federal law],'' the complaint states. The federal law that applies to this is 25 CFR paragraph 212.41(b).
The complaint further claims that the federal government collected an amount of royalties far under what should have been collected for the period from 1994 - 2001, which was $670,000. The amount that should have been collected, at a rate from 2.5 percent to 4.5 percent, was estimated to be in the double-digit millions.
The multi-well pad on the Oenga property is designed as a directional drilling process. The complaint states that BP allowed access to the pad by ARCO Alaska and Exxon Corp. to extract oil from an area adjacent to the Oenga property, known as the West Kiakak P.A., as designed by the state.
The family received no notice of this action, and members have received no royalties. The two companies had lease agreements on property situated over the oil deposits, but not for Oenga property.
Production figures indicate that 40 percent of all oil production through the Oenga multi-well pad came from the adjacent oil deposits. The lease agreement, the complaint argues, does not allow for the production of oil or gas from the adjacent oil deposits. The unauthorized extraction of oil through the Oenga family property from the West Kiakak area constitutes a breach of trust responsibility on the part of the federal government, the complaint states.
The Oenga family is asking the court to make a determination of compensation to them. The $180 million figure, only an estimate of the potentially final determination, is not what the family is asking.
Other families that have land leased to the oil industry are doing well. Delia said they had people who spoke English when the contracts were originated.
''We were misrepresented by the government and we want what the other surface owners were paid; they took advantage of an old man who didn't understand English,'' Delia said.
''Some of us think the government can do what they want; they make the laws and break the laws and do what they want. They can uphold any deal or treaty, but as far as we are concerned they have never upheld any treaty. It is sad to see how Indian people are being treated,'' Delia said.
http://www.indiancountrytoday.com/archive/28153584.html
Oenga heirs sue federal government over lease
- Heirs of Andrew Oenga, Inupiat, have initiated a historic $180 million lawsuit claiming the U.S. Interior Department failed to make equitable lease payments for oil that passed over the family;s property in Prudhoe Bay in Alaska's North Slope. Their case may be the first in which a family has brought suit against the federal government.
By David Melmer / Indian Country Today
Story Published: Nov 13, 2006
Story Updated: Sep 10, 2008
PRUDHOE BAY, Alaska - An Inupiat family may be the first family ever to file suit against the federal government for allegedly mismanaging a lease agreement with an oil company.
The family, descendants of Andrew Oenga, claims the federal government, specifically the Department of the Interior and BIA, failed to properly protect the family;s right to equitable lease payments for oil that passed over the property.
If the family prevails in the U.S. Court of Federal Claims, the financial award to the Oenga family could be an estimated $180 million. British Petroleum held the lease to the property over the past decade and is included as an interested party to the lawsuit. Any financial award would come from BP, according to the lawsuit.
''We are doing the only thing we could do. We put our heads together and decided to fight for what we believe in,'' said Joe Delia, spokesman for the Oenga family descendants.
''The federal government has been screwing over Natives since they came here; it has got to stop somewhere, there has to be justice somewhere,'' he said.
In 1971, Andrew Oenga applied for and received an allotment, located at Prudhoe Bay on the North Slope of Alaska. In the late 1980s the federal government negotiated a lease agreement with the oil companies. That negotiation was conducted in English and Oenga spoke only Inupiat, the lawsuit states.
The original lease allowed the oil companies, specifically BP and related subcontracted companies, to run a pipeline and road across the Oenga property; but the lawsuit claims that appraisals did not include appropriate royalty rates, therefore an arbitrary and lower rate was given to the property.
The original agreement was for a pipeline and road, but a drilling pad was constructed on the property later and an appraisal was not completed for that procedure, the lawsuit claims. Oil was subsequently extracted at the Oenga property location and BP paid only one-tenth of 1 percent for the right to extract the oil; the royalty rate, the family argues, should have been set at more than 4 percent, which was set by federal code. In addition, the lease agreement states that interest on unpaid royalties is to be assessed at 18 percent. The state has claim to the oil and gas rights, so the state would receive 12.5 percent of the royalties.
According to the legal documents, the federal government knew that BP intended to use the land for a multiple-head drilling pad, but an appraisal does not take that into account. Under federal regulations, appraisals must be completed every four or five years; the complaint filed in court claims that no appraisal has been conducted for the 2006 - '09 period. The family also claims that other appraisals were given to them late.
In 2005, the family demanded the secretary of the Interior give notice of default and of breach of failure to perform or comply regarding the leases. The government, the complaint states, did not issue any notice.
The complaint states that BP benefited from mismanagement of the lease agreements by Interior and therefore BP should be held financial liable.
The Oenga family is traditional. Their ancestors have occupied that region of the continent for thousands of years and, until recently, family members has lived a traditional subsistence lifestyle.
''The Inupiat community goes hunting and whaling and provides for the entire community, like living the old ways of living and taking care of each other. We go out and help, seal hunting and whale hunting. We lived and got the experience of the Indian way of life,'' Delia said.
Delia said the family is not allowed to hunt, fish or even visit the land. ''The have been taking advantage of the family for a long time, we want to see justice. They are taking a lot of oil out of there.'' he said.
A sod house is located on the property where his mother was born. ''We have to get permission to even go over there,'' Delia, who lives in Anchorage, said.
''There are eight of us in the lawsuit, but there are more descendants. Grandfather wanted a future for his family; that's what life is all about up here, taking care of family and providing for them,'' Delia said.
Delia worked for the oil industry, as do many people in that area. He drove a hazardous waste truck, but the hours were too much and ''I lost family over the work since I was never home,'' he said. He now works for the community in Anchorage.
There used to be priority hiring for the Alaska Natives in the oil fields, but Delia said it is hard for many of them to get to the fields now. Only a few small villages are within the region.
The Oenga family descendants also assert that BP has not been a good steward of the land by not cleaning up oil spills and not repairing corroded pipes. In March, a leak in a BP Exploration Alaska pipeline at Prudhoe Bay resulted in the North Slope's largest oil spill on record. Other spillages from pipelines have been reported by BP, but the March incident did not prompt the filing of this lawsuit, the Oenga family claims.
For oil or gas leases, federal law mandates that Interior collect a royalty rate of 16.66 percent of the value of production. The caveat to that law is that the secretary has a right to negotiate a lesser amount if it is in the best interest of the allottee.
''Neither the Secretary of Interior, nor his designee, has ever made a determination that it is in the best interests of the Plaintiffs to receive a royalty or rent less than provided by [federal law],'' the complaint states. The federal law that applies to this is 25 CFR paragraph 212.41(b).
The complaint further claims that the federal government collected an amount of royalties far under what should have been collected for the period from 1994 - 2001, which was $670,000. The amount that should have been collected, at a rate from 2.5 percent to 4.5 percent, was estimated to be in the double-digit millions.
The multi-well pad on the Oenga property is designed as a directional drilling process. The complaint states that BP allowed access to the pad by ARCO Alaska and Exxon Corp. to extract oil from an area adjacent to the Oenga property, known as the West Kiakak P.A., as designed by the state.
The family received no notice of this action, and members have received no royalties. The two companies had lease agreements on property situated over the oil deposits, but not for Oenga property.
Production figures indicate that 40 percent of all oil production through the Oenga multi-well pad came from the adjacent oil deposits. The lease agreement, the complaint argues, does not allow for the production of oil or gas from the adjacent oil deposits. The unauthorized extraction of oil through the Oenga family property from the West Kiakak area constitutes a breach of trust responsibility on the part of the federal government, the complaint states.
The Oenga family is asking the court to make a determination of compensation to them. The $180 million figure, only an estimate of the potentially final determination, is not what the family is asking.
Other families that have land leased to the oil industry are doing well. Delia said they had people who spoke English when the contracts were originated.
''We were misrepresented by the government and we want what the other surface owners were paid; they took advantage of an old man who didn't understand English,'' Delia said.
''Some of us think the government can do what they want; they make the laws and break the laws and do what they want. They can uphold any deal or treaty, but as far as we are concerned they have never upheld any treaty. It is sad to see how Indian people are being treated,'' Delia said.
http://www.indiancountrytoday.com/archive/28153584.html
Native Americans Sue Govt' for Breach of Trust : Why Can't We?
CRS Report for Congress
Received through the CRS Web
Order Code RS21399
Updated March 8, 2004
Trust Responsibility of Federal Government
for Indian Tribes: Recent Cases
M. Maureen Murphy
Legislative Attorney
American Law Division
Summary
The courts and Congress have long acknowledged a trust relationship between the federal government and the Indian tribes. Two Supreme Court cases, decided on March 4, 2003, further clarify how trust obligations are established and delineated. In one case, the Court rejected the Navajo Nation’s claim for damages for the government’s failure to maximize return from coal leases on tribal land. In the other, the Court ruled that a fiduciary obligation from which damages could flow was created by a 1960 statute declaring that the United States was to hold a former military post, Fort Apache, in trust for the White Mountain Apache Tribe subject to the right to use the land for school purposes. These cases supply a backdrop against which other Indian trust cases may be viewed. Prominent among the pending cases is Cobell v. Norton, Civil No. 96-1285 (D.D.C.), in which a federal district court is conducting a trial of a claim brought in the name of individual Indians for an accounting of funds held in trust for their benefit. (For further information, see CRS Report RS21738, The Indian Trust Fund Litigation: An Overview of Cobell v. Norton, by Nathan Brooks.) That suit has resulted in contempt orders against two Secretaries of the Interior and one Secretary of the Treasury and the removal from the Department of the Interior Internet site of all resources connected to trust documentation.
Background. Nations colonizing the New World declared their sovereignty over the land and invoked a jurisprudence that required them to assume certain duties toward the native peoples that has been expressed in terms of the metaphor of guardian and ward. This metaphor was invoked to express the nature of the authority and responsibilities of the federal government with respect to the Indian tribes as early as 1831 in Supreme Court cases involving the Cherokee Nation,1 in which Court ruled that Indian tribal lands were jurisdictionally not subject to state law, but to the protection of federal law. In reaching the decision, the Court held that the Cherokee Nation was not a foreign nation (and, thus, able to invoke the original jurisdiction of the Supreme Court), but a “domestic dependent
http://wikileaks.org/wiki/CRS-RS21399
CRS-2
2 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).
3 Id., at 17.
4 See Reid Peyton Chambers, “Judicial Enforcement of the Federal Trust Responsibility to
Indians,” 27 Stanford Law Review 1213, 1223 (1975).
5 See e.g., Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
6 See United States v. Sioux Nation, 448 U.S. 371 (1980).
7 Hodel v. Irving, 481 U.S. 704 (1987); Babbitt v. Youpee, 519 U.S. 234 (1997).
8 463 U.S. 110 (1983).
9 400 U.S. 110, 128.
nation,”2 analogous to a ward of the United States. The Cherokees, thus, could “look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father.”3 Eventually, in the late nineteenth century, the trust relationship was viewed as a source of federal power.4 The Court virtually refused to find any federal legislation affecting Indian property to be unconstitutional and saw the power to abrogate Indian treaty rights as political and not subject to judicial control.5 Courts no longer invoke the plenary authority of Congress in Indian affairs and the trust relationship as a source of plenary federal power but have delineated limits on Congressional power to deal with Indian property. In United States v. Sioux Nation,6 for example, the Court focused on how Congress must act as a trustee of Indian property–it may change it from one form to another, e.g., from land to money, but it may not take it for a public purpose without meeting the Fifth Amendment’s just compensation requirement. Similarly, the Supreme Court has held unconstitutional as confiscatory, federal legislation that permits escheat (transferring title) to tribes of fractionated shares of Indian allotments that have passed through multiple intestate successions resulting in maximum fractionalization of interests.7 Although the Court seems to be moving away from viewing the trust relationship as a source of federal plenary power, it has not adopted the view that the trust relationship completely incorporates the common law of trusts. In 1983, in Nevada v. United States,8 the Supreme Court indicated that the trust obligations assumed by federal government agencies with respect to Indians or Indian property are unlike the obligations of a private fiduciary or trustee with respect to the issue of conflict of interest. The case involved a situation in which the United States represented both an Indian tribe and a reclamation project in water rights litigation. The Court noted that when Congress calls upon an agency to represent more than one beneficiary or imposes conflicting obligations on it, strict fiduciary duties are not required, saying “[t]he Government does not ‘compromise’ its obligations to one interest that Congress obliges it to represent by the mere fact that it simultaneously performs another task for another interest that Congress has obligated it by statute to do.”9 Under what is known as the Indian Tucker Act, 28 U.S.C. § 1505, the United States waives its sovereign immunity to permit Indian tribes to sue for damages in the Court of Federal Claims for claims “ arising [after August 13, 1946] under the Constitution, laws
http://wikileaks.org/wiki/CRS-RS21399 CRS-3 10 Technically, this means that, provided the statutes imposing the trust meet certain standards indicating that they are intended to mandate monetary compensation for their breach, a tribe may sue the United States under the Indian Tucker Act.
11 Mitchell v. United States, 391 (F2d 1300) (Ct. Cl. 1979).
12 Mitchell v. United States, 664 F2d. 265 (Ct. Cl. 1981).
13 25 U.S.C. §§ 406 - 407 and 466; the court also found trust responsibilities created by statutes dealing with road building and rights of way (25 U.S.C. §§ 318a and 323 - 325; and Indian trust funds and administrative fees (25 U.S.C. §§ 162a and 413). 14 463 U.S. 206, 225. 15 White Mountain Apache v. United States, 249 F.3d 1364 (Fed. Cir.2001). or treaties of the United States, or Executive orders of the President, or ... which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band, or group” For a tribe to recover damages against the United States under this statute, it is not enough to cite the federal trust relationship. To impose strict fiduciary duties10 upon a federal agency a statute must satisfy tests set forth by the Supreme Court in two cases involving timber management on reservation trust lands. In United States v. Mitchell, 445 U.S. 535 (1980) (Mitchell I), the Court held that assessment of money damages against the United States for breach of trust in connection with Indian property must be based on a statute that contemplates such a result (i.e., it must be “money-mandating”). The Supreme Court found nothing in the language, legislative history, or circumstances surrounding the legislation cited by the lower court,11 the General Allotment Act, 25 U.S.C. §§ 332 et seq., to create an express trust respecting timber management. On remand,12 the lower court found that the Indian timber statutes13 established a trust relation allowing recovery for breach of trust because they created a corpus of Indian property, to be controlled by a trustee, the federal government, for the benefit of a beneficiary, Indian owners, and that Congress intended the benefit be financial. The Supreme Court agreed. In United States v. Mitchell, 463 U.S. 206, 219 (1983) (Mitchell II)) the Court examined the statutes cited by the lower court to see “whether they can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties they impose.” It traced the history and scope of the timber management legislation and concluded that it, unlike the general Allotment Act, gives the federal government “full responsibility to manage Indian resources and land for the benefit of the Indians. ...[and] thereby establish a fiduciary relationship....”14
White Mountain Apache and Navajo Nation. On March 4, 2003, the Supreme Court decided two cases involving assertions by Indian tribes that the United States had breached its trust obligations. The decisions articulated the same standard as announced in Mitchell II, but found a trust obligation in only one of the cases, United States v. White Mountain Apache 537 U.S. 465 (2003). In it, the Court upheld an appellate ruling15 that a tribe could bring an action against the United States for compensation for failure to repair buildings at Fort Apache. The case involved a 1960 statute that declared the Fort Apache military post to be “held by the United States in trust for the White Mountain Apache Tribe, subject to the right of the Secretary of the Interior to use any part of the land and improvements for administrative or school purposes for as long as they are http://wikileaks.org/wiki/CRS-RS21399
CRS-4
16 Pub. L. 86-392, 74 Stat. 8 (1960).
17 White Mountain Apache v. United States, 249 F. 3d 1364, 1378.
18 White Mountain Apache Tribe v. United States, 46 Fed. Cl. 20 (1999).
19 Brief for Petitioner, at 14 ff., United States v. White Mountain Apache Tribe (No. 01-1067).
20 28 U.S.C. § 1505, which authorizes the Court of Claims to hear claims against the United States by Indian tribes based on an Act of Congress. 21 United States v. White Mountain Apache, slip op., at 6. 22 Id., 6, quoting United States v. Mitchell, 463 U.S. 206, 218 (1963)
needed for that purpose.”16 The appeals court had noted that the Fort Apache legislation
conveyed complete control and did not require, as in Mitchell II, that the property be
administered for the benefit of the Indians. Nonetheless, it found that when the
government chooses to use trust property exclusively for its own purposes, it becomes
subject to the duties of a common law fiduciary and, therefore, must “act reasonably to
preserve the trust property,”17or to be liable to the tribe in money damages. This ruling
was contrary to that of the trial court, which had held that mere control was insufficient
for a trust obligation to attach.18
Writing for the Supreme Court, in an opinion in which Justices Stevens, O’Connor,
Ginsburg, and Breyer concurred, Justice Souter rejected the argument that the United
States had raised as to the high standard to be applied to any statute interpreted as
imposing a fiduciary obligation on the United States, breach of which is to give rise to
compensable damages.19 The Court found that the Indian Tucker Act20 met the standard
for a clear waiver of sovereign immunity and that a statute creating a substantive right
within that waiver requires merely the standard identified in Mitchell II: ”that...[it]...be
reasonably amenable to the reading that it mandates a right of recovery in damages.”21
The Court recognized, in the language of Mitchell II, that this is not to be “‘lightly
inferred,’” but said that “a fair inference will do.”22
The Court found that the language of the 1960 Act in White Mountain Apache
created more than a bare trust even though it did not impose specific management and
control duties similar to those of the timber management statutes at issue in Mitchell II.
It held the statutory authorization for the United States to use the trust property carried
with it a duty to maintain the property and not to permit it to deteriorate, a duty imposed
upon a common law trustee. The Court remanded the case to the Court of Federal Claims
for a trial on the issue of damages. Assessment of damages may involve knotty issues,
such as whether damages will be assessed only for those improvements on the trust
property used by the United States or for all the deterioration of this historic site and what
interplay there will be with the trust law principle that the trustee use trust assets for
expenses incurred in administering and maintaining the trust.
In United States v. Navajo Nation 537 U.S.488 (2003), in an opinion written by
Justice Ginsburg, joined by Chief Justice Rehnquist and Justices Scalia, Kennedy,
Thomas, and Breyer, the Court reversed the U.S. Court of Appeals for the Federal Circuit.
http://wikileaks.org/wiki/CRS-RS21399
CRS-5
23 Petition for Writ of Certiorari, at 13, United States v. Navajo Nation (No. 01-1137).
24 The Indian Mineral Leasing Act of 1938, 38 Stat. 347, 25 U.S.C. §§ 396a et seq.
25 Navajo Nation v. United States, 46 Fed. Cl. 217,219 (2000).
26 Navajo Nation v. United States, 263 F.3d 1325 (Fed. Cir. 2001).
27 Tiger v. Western Investment Co. 221 U.S. (1911); Choteau v. Burnet, 283 U.S. 691 (1931);
Sunderland v. United States, 266 U.S. 226 (1924); and Anicker v. Gunsburg, 246 U.S. 120
(1918)
It ruled against the Navajo Nation (Nation), which had sought $600 million damages23 in
the context of the Department of the Interior’s role in the negotiation and approval of
reservation coal leases. The fact situation includes ex parte communication between the
Secretary of the Interior and the lessee that was not disclosed to the Nation and that
resulted in withdrawing an administrative decision that would have imposed higher
royalties than were ultimately obtained by the Navajo Nation. The issue was whether the
mineral leasing statutes24 are such that they can be fairly interpreted as mandating
monetary damages for breach of trust if actions by the Department of the Interior could
be shown, in a future trial, to have resulted in an economic disadvantage to the tribe.
At the trial court level, the Court of Federal Claims had ruled that although the
United States, “acting through former Secretary Hodel, violated the most basic common
law fiduciary duties owed the Navajo Nation....the trust relationship necessary for
...jurisdiction does not exist, and these violations do not mandate monetary relief.”25 That
court found the dual purposes of the Indian mineral leasing statutes, maximizing
economic returns for the Indian beneficiaries and fostering Indian self-determination, as
undermining the necessary intent to permit money damages. This decision was reversed
at the appellate level.26 The arguments that the United States raised in the Supreme Court
drew a contrast between the mineral leasing statutes that give the tribes the authority for
mineral leasing, subject to the approval of the Secretary of the Interior, with the timber
statutes in Mitchell II, which the Court found conveyed total control to the Secretary of
the Interior. It also raised various factual matters that indicate the possibility that the final
lease, which the Navajo Nation submitted for approval, may have been on the whole equal
to that which would have been mandated had the Secretary not intervened. Finally, the
U.S. characterized the Navajo Nation’s case as calling for the imposition of common law
trust duties, thereby, expanding potential liability beyond the Mitchell II standard and
beyond what would be inferred by a fair reading of the statutes at issue.
The Supreme Court, in Navajo Nation, found no language creating a trust in the
Indian mineral leasing statutes; nor did it find that the statutes or implementing
regulations conferred the kind of control from which fiduciary obligations were held to
flow in Mitchell II. The Secretary had only the authority to approve leases negotiated by
tribes subject to the sole standard that royalties not fall below a minimum level
established in the regulation. A dissent, which was written by Justice Souter, the author
of the opinion of the Court in White Mountain Apache, drew a different implication from
the requirement of Secretarial approval of coal leases on tribal lands. Relying on
legislative history relevant to the purpose of the Secretarial approval requirement–to
maximize tribal returns from mineral estates–and cases in the early part of the 20th
century27 the dissent viewed Secretarial approval as a protective measure. Two justices,
Justices Ginsburg and Breyer, cast the deciding votes. They joined in a concurring
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28 Cobell v. Norton (Civil No. 96-1285) (D.D.C.). Updated information is available on the
plaintiffs’ website: [http://www.indiantrust.com]. The Department of Justice Civil Division’s
website provides case documents. [http://www.usdoj.gov/civil/cases/cobell/index.htm.]
29 Interior Department estimates it holds 300,000 trust accounts; the plaintiffs in Cobell assert
that 500,000 is the appropriate figure. Cobell v. Babbitt, 91 F. Supp. 2d 1, at 10 (D.D.C. 1999).
30 See, e.g.,Assiniboine and Sioux Tribe of the Fort Peck Indian Reservation v. Norton (Civil
Action No. 01-35 (RCL) D..D.C.). The Cobell plaintiffs’ web site, [http://www.indiantrust.com],
contains many of the pertinent documents and news articles, and a chronology of the case.
31 5 U.S.C. § 702.
32 25 U.S.C. § 162a(d).
33 Cobell v. Babbitt, 37 F. Supp. 2d (1999); Cobell v. Norton, 2002 U.S. Dist. Lexis 17353
(D.D.C. 2002).
34 Cobell v. Norton, 226 F. Supp. 2d 1, 305-307, n. 130 - 131 (D.D.C. 2002).
35 Cobell v. Norton, 240 F.3d 1081, 1098. (D.C. Cir. 2001).
opinion, written by Justice Ginsburg, in White Mountain Apache, reconciling the different
outcomes on the basis of application of the Mitchell II standard. They saw the statute
in White Mountain Apache as requiring the Secretary to hold the land in trust and as
conveying full authority to use it. On the other hand, they viewed Indian mineral leasing
legislation as involving no Secretarial management or control or duties, breach of which,
required compensation.
Cobell28 and Other Trust Fund Cases. The Court’s decision to uphold the
Mitchell II rationale may have an impact on other litigation.29 For example, Judge Royce
Lamberth of the U.S. District Court for the District of Columbia has been overseeing
Cobell v. Norton (Civil No. 96-1285), a suit seeking a declaratory judgment as to the
extent of the Interior Department’s duties with respect to trust funds held for individual
Indians and an injunction to assure performance. Related cases involving similar claims
involving trust funds held for certain tribes have also been referred to Judge Lamberth.30
At least two federal statutes are central to the Cobell case: (1) section 702 of the
Administrative Procedure Act waives sovereign immunity of federal officials for actions
“seeking relief other than money damages” involving a federal official’s action or failure
to act,31 and (2) the Indian Trust Fund Management Reform Act of 199432 specifies, inter
alia, that the Secretary of the Interior must provide: adequate systems for accounting for
trust fund receipts and balances, periodic reconciliations of trust fund accounts, adequate
controls over receipts and balances; and periodic statements to account holders. The trial
court, during the course of protracted litigation that has included contempt orders against
two Secretaries of the Interior and one Secretary of the Treasury33 and the removal from
the Department of the Interior website of all resources connected to trust documentation,34
has found that these duties have been breached. The appellate court, in an opinion that
has not been appealed, generally upheld the trial court, finding that the government had
breached its trust obligations to the beneficiaries and upheld the district court’s orders
compelling the government officials “to do little more than develop plans to ensure proper
discharge of their duties within a reasonable time.”35
http://stuff.mit.edu/afs/sipb/contrib/wikileaks-crs/wikileaks-crs-reports/RS21399.pdf
Received through the CRS Web
Order Code RS21399
Updated March 8, 2004
Trust Responsibility of Federal Government
for Indian Tribes: Recent Cases
M. Maureen Murphy
Legislative Attorney
American Law Division
Summary
The courts and Congress have long acknowledged a trust relationship between the federal government and the Indian tribes. Two Supreme Court cases, decided on March 4, 2003, further clarify how trust obligations are established and delineated. In one case, the Court rejected the Navajo Nation’s claim for damages for the government’s failure to maximize return from coal leases on tribal land. In the other, the Court ruled that a fiduciary obligation from which damages could flow was created by a 1960 statute declaring that the United States was to hold a former military post, Fort Apache, in trust for the White Mountain Apache Tribe subject to the right to use the land for school purposes. These cases supply a backdrop against which other Indian trust cases may be viewed. Prominent among the pending cases is Cobell v. Norton, Civil No. 96-1285 (D.D.C.), in which a federal district court is conducting a trial of a claim brought in the name of individual Indians for an accounting of funds held in trust for their benefit. (For further information, see CRS Report RS21738, The Indian Trust Fund Litigation: An Overview of Cobell v. Norton, by Nathan Brooks.) That suit has resulted in contempt orders against two Secretaries of the Interior and one Secretary of the Treasury and the removal from the Department of the Interior Internet site of all resources connected to trust documentation.
Background. Nations colonizing the New World declared their sovereignty over the land and invoked a jurisprudence that required them to assume certain duties toward the native peoples that has been expressed in terms of the metaphor of guardian and ward. This metaphor was invoked to express the nature of the authority and responsibilities of the federal government with respect to the Indian tribes as early as 1831 in Supreme Court cases involving the Cherokee Nation,1 in which Court ruled that Indian tribal lands were jurisdictionally not subject to state law, but to the protection of federal law. In reaching the decision, the Court held that the Cherokee Nation was not a foreign nation (and, thus, able to invoke the original jurisdiction of the Supreme Court), but a “domestic dependent
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CRS-2
2 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).
3 Id., at 17.
4 See Reid Peyton Chambers, “Judicial Enforcement of the Federal Trust Responsibility to
Indians,” 27 Stanford Law Review 1213, 1223 (1975).
5 See e.g., Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
6 See United States v. Sioux Nation, 448 U.S. 371 (1980).
7 Hodel v. Irving, 481 U.S. 704 (1987); Babbitt v. Youpee, 519 U.S. 234 (1997).
8 463 U.S. 110 (1983).
9 400 U.S. 110, 128.
nation,”2 analogous to a ward of the United States. The Cherokees, thus, could “look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father.”3 Eventually, in the late nineteenth century, the trust relationship was viewed as a source of federal power.4 The Court virtually refused to find any federal legislation affecting Indian property to be unconstitutional and saw the power to abrogate Indian treaty rights as political and not subject to judicial control.5 Courts no longer invoke the plenary authority of Congress in Indian affairs and the trust relationship as a source of plenary federal power but have delineated limits on Congressional power to deal with Indian property. In United States v. Sioux Nation,6 for example, the Court focused on how Congress must act as a trustee of Indian property–it may change it from one form to another, e.g., from land to money, but it may not take it for a public purpose without meeting the Fifth Amendment’s just compensation requirement. Similarly, the Supreme Court has held unconstitutional as confiscatory, federal legislation that permits escheat (transferring title) to tribes of fractionated shares of Indian allotments that have passed through multiple intestate successions resulting in maximum fractionalization of interests.7 Although the Court seems to be moving away from viewing the trust relationship as a source of federal plenary power, it has not adopted the view that the trust relationship completely incorporates the common law of trusts. In 1983, in Nevada v. United States,8 the Supreme Court indicated that the trust obligations assumed by federal government agencies with respect to Indians or Indian property are unlike the obligations of a private fiduciary or trustee with respect to the issue of conflict of interest. The case involved a situation in which the United States represented both an Indian tribe and a reclamation project in water rights litigation. The Court noted that when Congress calls upon an agency to represent more than one beneficiary or imposes conflicting obligations on it, strict fiduciary duties are not required, saying “[t]he Government does not ‘compromise’ its obligations to one interest that Congress obliges it to represent by the mere fact that it simultaneously performs another task for another interest that Congress has obligated it by statute to do.”9 Under what is known as the Indian Tucker Act, 28 U.S.C. § 1505, the United States waives its sovereign immunity to permit Indian tribes to sue for damages in the Court of Federal Claims for claims “ arising [after August 13, 1946] under the Constitution, laws
http://wikileaks.org/wiki/CRS-RS21399 CRS-3 10 Technically, this means that, provided the statutes imposing the trust meet certain standards indicating that they are intended to mandate monetary compensation for their breach, a tribe may sue the United States under the Indian Tucker Act.
11 Mitchell v. United States, 391 (F2d 1300) (Ct. Cl. 1979).
12 Mitchell v. United States, 664 F2d. 265 (Ct. Cl. 1981).
13 25 U.S.C. §§ 406 - 407 and 466; the court also found trust responsibilities created by statutes dealing with road building and rights of way (25 U.S.C. §§ 318a and 323 - 325; and Indian trust funds and administrative fees (25 U.S.C. §§ 162a and 413). 14 463 U.S. 206, 225. 15 White Mountain Apache v. United States, 249 F.3d 1364 (Fed. Cir.2001). or treaties of the United States, or Executive orders of the President, or ... which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band, or group” For a tribe to recover damages against the United States under this statute, it is not enough to cite the federal trust relationship. To impose strict fiduciary duties10 upon a federal agency a statute must satisfy tests set forth by the Supreme Court in two cases involving timber management on reservation trust lands. In United States v. Mitchell, 445 U.S. 535 (1980) (Mitchell I), the Court held that assessment of money damages against the United States for breach of trust in connection with Indian property must be based on a statute that contemplates such a result (i.e., it must be “money-mandating”). The Supreme Court found nothing in the language, legislative history, or circumstances surrounding the legislation cited by the lower court,11 the General Allotment Act, 25 U.S.C. §§ 332 et seq., to create an express trust respecting timber management. On remand,12 the lower court found that the Indian timber statutes13 established a trust relation allowing recovery for breach of trust because they created a corpus of Indian property, to be controlled by a trustee, the federal government, for the benefit of a beneficiary, Indian owners, and that Congress intended the benefit be financial. The Supreme Court agreed. In United States v. Mitchell, 463 U.S. 206, 219 (1983) (Mitchell II)) the Court examined the statutes cited by the lower court to see “whether they can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties they impose.” It traced the history and scope of the timber management legislation and concluded that it, unlike the general Allotment Act, gives the federal government “full responsibility to manage Indian resources and land for the benefit of the Indians. ...[and] thereby establish a fiduciary relationship....”14
White Mountain Apache and Navajo Nation. On March 4, 2003, the Supreme Court decided two cases involving assertions by Indian tribes that the United States had breached its trust obligations. The decisions articulated the same standard as announced in Mitchell II, but found a trust obligation in only one of the cases, United States v. White Mountain Apache 537 U.S. 465 (2003). In it, the Court upheld an appellate ruling15 that a tribe could bring an action against the United States for compensation for failure to repair buildings at Fort Apache. The case involved a 1960 statute that declared the Fort Apache military post to be “held by the United States in trust for the White Mountain Apache Tribe, subject to the right of the Secretary of the Interior to use any part of the land and improvements for administrative or school purposes for as long as they are http://wikileaks.org/wiki/CRS-RS21399
CRS-4
16 Pub. L. 86-392, 74 Stat. 8 (1960).
17 White Mountain Apache v. United States, 249 F. 3d 1364, 1378.
18 White Mountain Apache Tribe v. United States, 46 Fed. Cl. 20 (1999).
19 Brief for Petitioner, at 14 ff., United States v. White Mountain Apache Tribe (No. 01-1067).
20 28 U.S.C. § 1505, which authorizes the Court of Claims to hear claims against the United States by Indian tribes based on an Act of Congress. 21 United States v. White Mountain Apache, slip op., at 6. 22 Id., 6, quoting United States v. Mitchell, 463 U.S. 206, 218 (1963)
needed for that purpose.”16 The appeals court had noted that the Fort Apache legislation
conveyed complete control and did not require, as in Mitchell II, that the property be
administered for the benefit of the Indians. Nonetheless, it found that when the
government chooses to use trust property exclusively for its own purposes, it becomes
subject to the duties of a common law fiduciary and, therefore, must “act reasonably to
preserve the trust property,”17or to be liable to the tribe in money damages. This ruling
was contrary to that of the trial court, which had held that mere control was insufficient
for a trust obligation to attach.18
Writing for the Supreme Court, in an opinion in which Justices Stevens, O’Connor,
Ginsburg, and Breyer concurred, Justice Souter rejected the argument that the United
States had raised as to the high standard to be applied to any statute interpreted as
imposing a fiduciary obligation on the United States, breach of which is to give rise to
compensable damages.19 The Court found that the Indian Tucker Act20 met the standard
for a clear waiver of sovereign immunity and that a statute creating a substantive right
within that waiver requires merely the standard identified in Mitchell II: ”that...[it]...be
reasonably amenable to the reading that it mandates a right of recovery in damages.”21
The Court recognized, in the language of Mitchell II, that this is not to be “‘lightly
inferred,’” but said that “a fair inference will do.”22
The Court found that the language of the 1960 Act in White Mountain Apache
created more than a bare trust even though it did not impose specific management and
control duties similar to those of the timber management statutes at issue in Mitchell II.
It held the statutory authorization for the United States to use the trust property carried
with it a duty to maintain the property and not to permit it to deteriorate, a duty imposed
upon a common law trustee. The Court remanded the case to the Court of Federal Claims
for a trial on the issue of damages. Assessment of damages may involve knotty issues,
such as whether damages will be assessed only for those improvements on the trust
property used by the United States or for all the deterioration of this historic site and what
interplay there will be with the trust law principle that the trustee use trust assets for
expenses incurred in administering and maintaining the trust.
In United States v. Navajo Nation 537 U.S.488 (2003), in an opinion written by
Justice Ginsburg, joined by Chief Justice Rehnquist and Justices Scalia, Kennedy,
Thomas, and Breyer, the Court reversed the U.S. Court of Appeals for the Federal Circuit.
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23 Petition for Writ of Certiorari, at 13, United States v. Navajo Nation (No. 01-1137).
24 The Indian Mineral Leasing Act of 1938, 38 Stat. 347, 25 U.S.C. §§ 396a et seq.
25 Navajo Nation v. United States, 46 Fed. Cl. 217,219 (2000).
26 Navajo Nation v. United States, 263 F.3d 1325 (Fed. Cir. 2001).
27 Tiger v. Western Investment Co. 221 U.S. (1911); Choteau v. Burnet, 283 U.S. 691 (1931);
Sunderland v. United States, 266 U.S. 226 (1924); and Anicker v. Gunsburg, 246 U.S. 120
(1918)
It ruled against the Navajo Nation (Nation), which had sought $600 million damages23 in
the context of the Department of the Interior’s role in the negotiation and approval of
reservation coal leases. The fact situation includes ex parte communication between the
Secretary of the Interior and the lessee that was not disclosed to the Nation and that
resulted in withdrawing an administrative decision that would have imposed higher
royalties than were ultimately obtained by the Navajo Nation. The issue was whether the
mineral leasing statutes24 are such that they can be fairly interpreted as mandating
monetary damages for breach of trust if actions by the Department of the Interior could
be shown, in a future trial, to have resulted in an economic disadvantage to the tribe.
At the trial court level, the Court of Federal Claims had ruled that although the
United States, “acting through former Secretary Hodel, violated the most basic common
law fiduciary duties owed the Navajo Nation....the trust relationship necessary for
...jurisdiction does not exist, and these violations do not mandate monetary relief.”25 That
court found the dual purposes of the Indian mineral leasing statutes, maximizing
economic returns for the Indian beneficiaries and fostering Indian self-determination, as
undermining the necessary intent to permit money damages. This decision was reversed
at the appellate level.26 The arguments that the United States raised in the Supreme Court
drew a contrast between the mineral leasing statutes that give the tribes the authority for
mineral leasing, subject to the approval of the Secretary of the Interior, with the timber
statutes in Mitchell II, which the Court found conveyed total control to the Secretary of
the Interior. It also raised various factual matters that indicate the possibility that the final
lease, which the Navajo Nation submitted for approval, may have been on the whole equal
to that which would have been mandated had the Secretary not intervened. Finally, the
U.S. characterized the Navajo Nation’s case as calling for the imposition of common law
trust duties, thereby, expanding potential liability beyond the Mitchell II standard and
beyond what would be inferred by a fair reading of the statutes at issue.
The Supreme Court, in Navajo Nation, found no language creating a trust in the
Indian mineral leasing statutes; nor did it find that the statutes or implementing
regulations conferred the kind of control from which fiduciary obligations were held to
flow in Mitchell II. The Secretary had only the authority to approve leases negotiated by
tribes subject to the sole standard that royalties not fall below a minimum level
established in the regulation. A dissent, which was written by Justice Souter, the author
of the opinion of the Court in White Mountain Apache, drew a different implication from
the requirement of Secretarial approval of coal leases on tribal lands. Relying on
legislative history relevant to the purpose of the Secretarial approval requirement–to
maximize tribal returns from mineral estates–and cases in the early part of the 20th
century27 the dissent viewed Secretarial approval as a protective measure. Two justices,
Justices Ginsburg and Breyer, cast the deciding votes. They joined in a concurring
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CRS-6
28 Cobell v. Norton (Civil No. 96-1285) (D.D.C.). Updated information is available on the
plaintiffs’ website: [http://www.indiantrust.com]. The Department of Justice Civil Division’s
website provides case documents. [http://www.usdoj.gov/civil/cases/cobell/index.htm.]
29 Interior Department estimates it holds 300,000 trust accounts; the plaintiffs in Cobell assert
that 500,000 is the appropriate figure. Cobell v. Babbitt, 91 F. Supp. 2d 1, at 10 (D.D.C. 1999).
30 See, e.g.,Assiniboine and Sioux Tribe of the Fort Peck Indian Reservation v. Norton (Civil
Action No. 01-35 (RCL) D..D.C.). The Cobell plaintiffs’ web site, [http://www.indiantrust.com],
contains many of the pertinent documents and news articles, and a chronology of the case.
31 5 U.S.C. § 702.
32 25 U.S.C. § 162a(d).
33 Cobell v. Babbitt, 37 F. Supp. 2d (1999); Cobell v. Norton, 2002 U.S. Dist. Lexis 17353
(D.D.C. 2002).
34 Cobell v. Norton, 226 F. Supp. 2d 1, 305-307, n. 130 - 131 (D.D.C. 2002).
35 Cobell v. Norton, 240 F.3d 1081, 1098. (D.C. Cir. 2001).
opinion, written by Justice Ginsburg, in White Mountain Apache, reconciling the different
outcomes on the basis of application of the Mitchell II standard. They saw the statute
in White Mountain Apache as requiring the Secretary to hold the land in trust and as
conveying full authority to use it. On the other hand, they viewed Indian mineral leasing
legislation as involving no Secretarial management or control or duties, breach of which,
required compensation.
Cobell28 and Other Trust Fund Cases. The Court’s decision to uphold the
Mitchell II rationale may have an impact on other litigation.29 For example, Judge Royce
Lamberth of the U.S. District Court for the District of Columbia has been overseeing
Cobell v. Norton (Civil No. 96-1285), a suit seeking a declaratory judgment as to the
extent of the Interior Department’s duties with respect to trust funds held for individual
Indians and an injunction to assure performance. Related cases involving similar claims
involving trust funds held for certain tribes have also been referred to Judge Lamberth.30
At least two federal statutes are central to the Cobell case: (1) section 702 of the
Administrative Procedure Act waives sovereign immunity of federal officials for actions
“seeking relief other than money damages” involving a federal official’s action or failure
to act,31 and (2) the Indian Trust Fund Management Reform Act of 199432 specifies, inter
alia, that the Secretary of the Interior must provide: adequate systems for accounting for
trust fund receipts and balances, periodic reconciliations of trust fund accounts, adequate
controls over receipts and balances; and periodic statements to account holders. The trial
court, during the course of protracted litigation that has included contempt orders against
two Secretaries of the Interior and one Secretary of the Treasury33 and the removal from
the Department of the Interior website of all resources connected to trust documentation,34
has found that these duties have been breached. The appellate court, in an opinion that
has not been appealed, generally upheld the trial court, finding that the government had
breached its trust obligations to the beneficiaries and upheld the district court’s orders
compelling the government officials “to do little more than develop plans to ensure proper
discharge of their duties within a reasonable time.”35
http://stuff.mit.edu/afs/sipb/contrib/wikileaks-crs/wikileaks-crs-reports/RS21399.pdf
Suing for "Sue,"....Old Bones & Wild Horses - The Govt as Trustee
Reserving "Sue"
Jeff Poling
--------------------------------------------------------------------------------
"What is to become of 'Sue,' the largest and arguably most complete known specimen of Tyrannosaur[us] rex ever found? The magnificent fossil -- nicknamed after Susan Hendrickson, the woman who found it -- has been at the center of a court battle over legal ownership ever since it was excavated by commercial collectors in 1990. Seized by the Federal Government in 1992 because Sue had been found on public lands -- namely a private ranch held in trust located on the Cheyenne river Sioux Indian reservation near Faith, South Dakota -- a recent court ruling assigned ownership of the fossil to a private individual, giving him permission to sell the fossil and pocket the proceeds."
The paragraph above appeared on the original "Save Sue" page of the Dinosaur Society website. It was the opening paragraph of a page that decried the government's intent to allow the sale of "Sue" by auction at Sotheby's, a large New York auction house. "Sue" will be sold to the highest bidder, and the fossil may be locked away in a private collection, possibly overseas. Reserving "Sue" for the American public, for viewing and study, is a noble goal. However, the actions taken to accomplish the goal must take into account the true facts surrounding "Sue's" status. Otherwise, inappropriate actions will be taken and the effort will be wasted.
The Dinosaur Society states, in essence, that fossils found on public land are public property. Therefore, they state, such fossils should not be sold and should instead reside in museums or other institutions. This was the main focus of their efforts to reserve "Sue," before they were informed of what you read here and changed their goals, and remains the focus of those not as well informed. The problem with this focus on public land and property is that "Sue" was not found on public land, and therefore is not public property.
In America we trust?
"Sue" was found on the land of Maurice Williams in 1990 by the Black Hills Institute of Geological Research (BHI). Maurice Williams is a member of the Cheyenne River Sioux and, like many American Indians, his land is held in trust by the United States government.
A trust, simply, is where property, money or other items are placed in the care of one or more other people, called trustees. In terms of real estate (land and whatever is found on or in that land), the trustee is given nominal ownership of the land and administers this land for the benefit of the person for whom the land was placed in trust (the "beneficial owner"). The trustee has a fiduciary obligation, backed by force of law, to do what is in the best interest of the beneficial owner. If the trustee fails in his fiduciary obligation, he can be prosecuted.
Although the trustee is the nominal owner of the land, it is not his property. He may not use it for his own benefit, and should the trust be dissolved, the trust lands become the sole property of the beneficial owner. In the case of Maurice Williams, the deed to the land states that it is held in trust by the U.S. government for the sole use and benefit of Maurice Williams and his heirs. As trustee, the U.S. government is bound by the trust's fiduciary obligations, and when the trust is dissolved, the land reverts to the sole ownership and control of Maurice Williams or his heirs. These facts carry the force of law under Title 25 U.S. Code, and various other statutes. The fact that the U.S. government is a public entity, rather than a private or commercial one, does not change the conceptual and legal status of the trust, nor does it make public land of the lands held in trust. Indeed, the Bureau of Indian Affairs states very plainly that Indian trust land is private property.
The ultimate owner of the land is Maurice Williams, a private citizen. As the land is owned by a private citizen, it is legally private property. This fact has been affirmed in court many times, including by the Eighth Circuit Court of Appeals and the Supreme Court during court proceedings over the ownership of "Sue."
So who currently owns "Sue?"
The battle over who owns "Sue" was fought arduously in the courts. The question was whether Maurice Williams, BHI, or the federal government in trust for Maurice Williams, owns the fossil. The ultimate decision of the courts, including the Supreme Court, remains highly controversial, but ownership has been determined.
The ownership controversy arose because of the undetermined status of what a fossil is. Is a fossil personal property, or is it land (specifically, real estate)?
There are no definitions within Title 25 for what constitutes land. Precedence allowed the appeals court to turn to state law for such definitions. Under South Dakota property law, "Land . . . is the solid material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance." The court decided that "Sue" was an "'ingredient' comprising part of the 'solid material of the earth.' It was a component part of Williams' land, just like the soil, the rocks, and whatever other naturally-occurring materials make up the earth of the ranch." Therefore, according to the court, "Sue" was land at the time it was found, and when the sale occurred.
Since the fossil was land, sale and removal of the fossil had to be approved by the trustee of the land, specifically the Secretary of the Interior acting on behalf of the U.S. government. Since no permission was sought nor granted, the sale to BHI was null and void.
Interestingly, had BHI waited until "Sue" was completely out of the ground to pay for the fossil, the court may have awarded ownership of the fossil to them. Once severed from the land, "Sue" became personal property, an opinion upheld by the court. Previous Supreme Court decisions had allowed sale, without permission, of timber, minerals and other items falling under the definition of land, that had already been severed from the land, as long as such items did not constitute a significant portion of the value of the land. Whether BHI could have convinced the court that "Sue," valued at the time at up to five million dollars, was not a valuable part of the land, will never be known.
The Court of Appeals, in rendering its opinion (upheld by the Supreme Court), cited Supreme Court precedents that land subject to trust restrictions remains under such restrictions even after being severed from the rest of the land and becoming personal private property. As such, even though "Sue" is no longer land, it is still subject to trust restrictions.
"Sue" is now legally Maurice Williams' personal private property, held in trust by the U.S. government. "Sue," in trust, is not public property for the same reasons, stated above, that Williams' land, in trust, is not public property.
It should be noted that in rendering these opinions the court had to rely on South Dakota law. Had "Sue" been found in another state, the outcome might have been very different.
Can "Sue" be reserved?
Maurice Williams, the proper owner of "Sue," is an older gentleman who has no particular love of science or fossils. He feels that given what little time he has left, he should get the value out of "Sue" or any other fossil while he can. As such, he has asked the government to sell "Sue" in his behalf.
As trustee, the U.S. government has a legal fiduciary duty to do what is in the best interest of Maurice Williams. If Williams is not being ripped off by the sale, the government is legally obligated to approve the sale.
The Dinosaur Society recently attempted to put itself at the forefront of an effort to reserve "Sue." Their efforts were based on their incorrect notion that "Sue" was public property, as shown by the opening paragraph of this document. To their credit, when I informed them that "Sue" was not found on public land and is not public property, the Dinosaur Society removed their "Save Sue" page, focused on "saving" "Sue," and replaced it with one focused on their efforts to ban fossil collecting on public lands (unfortunately, this new page uses "Sue" as a draw to the page, infers in certain paragraphs that "Sue" is public property, and still uses "Save Sue" as the page file name and link title, problems that they need to clean up).
The main thrust of the Society's effort to prevent fossil collecting on public lands is for people to write their Congressmen. Given the nature of the "Sue" controversy this is also the route many advocate taking to try to reserve "Sue." Therefore, writing Congress for "Sue's" sake bears analysis here.
There are only four avenues open to Congress to reserve "Sue:"
Refuse Williams the permission to sell "Sue."
Seize the fossil and give it to a public institution.
Buy the fossil and give it to a public institution.
Prohibit the sale of all fossils, and restrict their movements.
Number one will not happen. As stated above, the government, as trustee of Williams' land, is legally obligated to fulfill its fiduciary duty to approve the sale if it determines Williams is not being ripped off.
Number two is unlikely to happen. Simply seizing "Sue" would be difficult on constitutional grounds. The courts have affirmed that "Sue" is personal private property, and the Fifth Amendment specifically prohibits taking personal property for public use without just compensation. This action would also raise trust fiduciary duty questions as the public, as trustees through the government, would be taking the trust material for its own use. Theoretically, the Congress could seize the fossil and pay Williams for it, but this would bring up the question of whether the government was breaching its fiduciary duties by doing so.
Number three is possible, but not probable. The government could purchase the fossil, without seizing it, as long as in doing so it did not violate its fiduciary duties to Williams. Whether the government would be willing to purchase the fossil in this era of shrinking government and growing debt is questionable.
Number four is possible, but very difficult. There are many, many questions to the legality of this one. Could legislation banning the sale and exportation of fossils, as with drugs, pass constitutional muster? Could such laws be interpreted as the seizure of private property for public use, a direct violation of the Fifth Amendment? Certainly, given the complexity of the issue, such laws would not be in place by the time "Sue" comes up for sale. There would certainly be widespread opposition to this. Despite SAFE's (Save America's Fossils for Everyone) contention that their poll shows the American public would be in favor of restrictions on private ownership and sale of fossils found on private land, the poll, in fact, shows that they do not (although, to be fair, the poll was so badly done it is hard to tell whether those results are any more accurate than others in the poll).
In a bizarre legal twist, it is possible that the government might be able to squirm its way out of prosecution for breaching its fiduciary duties in carrying out any of the options above. The Court of Appeals, in determining the ownership of "Sue," stated that the lack of enumeration of fossils in U.S. statutes suggests that the government could not be held responsible for mismanaging fossil resources on Williams' land. To escape prosecution, the government could try to argue before the court that their actions constituted mismanagement, rather than a deliberate breach of fiduciary duties and theft. Whether a court would buy this argument is impossible to tell. Regardless, whether the government could get away with breaching its fiduciary duties is not the only issue. What far-reaching affects would such a deliberate breach have on the trustworthiness of the U.S. government, confidence in which is necessary in the bond markets, government trusts, federal protection and law enforcement, foreign treaties, backing of U.S. currency, and so many other integral parts of the day-to-day business of government? Is it morally right to encourage the government to deliberately breach its fiduciary obligations? If the government does breach these duties, what will be at the end of the road such a breach will start it down?
Interestingly, part of the Dinosaur Society's effort, to promote legal restrictions on removal of fossils from public lands, is encouraging school children to write to Congress. Their suggested letter reads, in part, "Please help 'Sue' and her friends . . ." by making it ". . . illegal to remove fossils from America's public lands." As stated above, Williams' land, where "Sue" was found, is not public land (nor is it quasi-public land, a deceptive term used by the Dinosaur Society). Thus, making it illegal to remove fossils from public land would not in any way help reserve "Sue" (it should also be noted that if Congress indeed made it illegal to remove fossils from public lands, nobody, not even professionals and institutions, would have access to fossils on public lands).
So what can we do to reserve "Sue?" Buy it. Some institution, confederation of institutions, or organization (either already existing or created specifically for this purpose), should start a fund to purchase "Sue," if they cannot already buy it outright. There is legitimate concern that such a purchase might up the ante in the fossil markets, thus worsening what institutions already consider a bad situation. However, the reality of the situation is that purchasing "Sue" is the only realistic choice to guarantee public study of "Sue." Fortunately, Sotheby's will allow any American institution that submits a winning bid to pay off the purchase over three years. Any organization that makes an effort to solicit money to help pay for "Sue" will be able to spread the effort over those three years; however, the effort must be established soon as the fossil will be auctioned off in early 1997.
Conclusion
"Sue" is not public property. It was found on private property held in trust by the government, not public property owned by the government. The fossil itself is the personal private property of Maurice Williams, held in trust by the government. Because the government must fulfill its legal fiduciary obligations to Williams, the government has granted Williams' request to sell the fossil by auction at Sotheby's. Because "Sue" is private property, the only realistic way to prevent "Sue's" sale to a private collection or foreign investor is to buy it for a public institution. Hopefully, the Dinosaur Society and other organizations, public and private institutions, and dinosaur and fossil enthusiasts everywhere will put away their political axes to grind and try to gather the money necessary to purchase "Sue" for an American institution.
--------------------------------------------------------------------------------
REFERENCES:
Davis, Barbara, Office of Trust Responsibilities, Division of Real Estate Services, Bureau of Indian Affairs, Department of the Interior. Telephone interview with the author. Columbus, 4 December 1996.
The Dinosaur Society. 1996. The Dinosaur Society - Save the Dinosaurs!, http://www.dinosociety.org/savesue.html, 31 December 1996. New York: The Dinosaur Society Website, http://www.dinosociety.org.
The Dinosaur Society. 1996. The Dinosaur Society - Save Sue, http://www.dinosociety.org/savesue.html, 4 December 1996. New York: The Dinosaur Society Website, http://www.dinosociety.org.
Monastersky, Richard. 1995. For the sake of Sue. Science News?
Pelfry, Roy, Bureau of Indian Affairs Aberdeen (SD) Area Office, Department of the Interior. Telephone interview with the author. Columbus, 4 December 1996.
United States Code. http://www.law.cornell.edu/uscode.
United States Court Of Appeals For The Eighth Circuit. 1994. Black Hills Institute of Geological Research; Black Hills Museum of Natural History Foundation, Inc., a non-profit corporation, Plaintiffs, Joseph M. Butler, Appellant, v. South Dakota School of Mines and Technology, Appellee, United States Department of Justice, Defendant. Black Hills Institute of Geological Research; Black Hills Museum of Natural History Foundation, Inc., a non-profit corporation, Appellants, v. United States Department of Justice, Appellee. 12 F.3d 737.
--------------------------------------------------------------------------------
Copyright © 1996, 1997 by Jeff Poling
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Revised: February 8, 1999; New: December 30, 1996
http://www.dinosauria.com/jdp/sue/reserve.htm
Suing the Govt' for Breach of Trust
Click on title above to go to article;
http://www.scribd.com/doc/12390948/The-Federal-Governments-Breach-Of-Trust
http://www.scribd.com/doc/12390948/The-Federal-Governments-Breach-Of-Trust
Exploding Water Wells in Colorado Town Due to Gas Exploration: Water UNFIT to Drink
Colorado county copes with methane mystery
By JUDITH KOHLER, Associated Press Writer Judith Kohler, Associated Press Writer – Sun Nov 1, 7:19 pm ET
WALSENBURG, Colo. – Bernice and Jerry Angely like to show visitors the singed T-shirt a friend was wearing when their water well exploded and shot flames 30 feet high.
The friend wasn't hurt. But that and an explosion at another home weeks earlier forced Colorado to suspend natural gas drilling around this southern plains town until someone could find out why dangerous levels of methane were getting into the groundwater.
Two years later, Walsenburg and surrounding Huerfano County are still waiting, its residents caught in a collision between two of the West's vital resources: Water and natural gas.
"The water is so saturated with methane and other chemicals it is not to be used for human consumption," said Bernice Angely, who's had water trucked to her home 10 miles west of town since her well blew up in July 2007.
Petroglyph Energy Inc., a Boise, Idaho-based firm that has worked the rolling plains of the Raton Basin since 1999, suspended drilling until it can stem the methane. Colorado also is rewriting rules that had allowed Petroglyph to discharge water runoff from its drilling into streams and creeks.
But Petroglyph says it's not clear the drilling caused the methane leaks or prompted other area water wells to run dry. Eying what it calls an extremely promising natural gas field, it believes a shallow water formation tapped by area homeowners isn't connected to a deeper one pumped by the company for its drilling operations.
Petroglyph chief operating officer Paul Powell also believes a growing number of new homes in the area could explain some of the dry water wells.
"We'll do what we need to do," Powell said, stressing that his firm is working with the state on a solution.
Petroglyph has a plan to prevent the flow of methane into water wells by creating a hydraulic barrier. The company has proposed pumping water from an underground formation and injecting it into a row of wells where gas drilling occurs. Powell said gas will migrate into a void, and "if the void is full of water, there isn't room for gas to migrate through it."
State regulators say the plan is plausible but that Petroglyph needs to prove it works. Democratic U.S. Rep. John Salazar, who farms in the nearby San Luis Valley, has asked the U.S. Geological Survey to weigh in by evaluating the area's water quality and formations to determine if the gas drilling is to blame for the problems.
Water coursing through porous rock and streams has allowed farming, ranching and new subdivisions to thrive in the semiarid area about 160 miles south of Denver.
It also helps trap methane gas in the vast coal seams that once made the area a mining hot spot. The coal mines are gone, but the methane that made digging for it dangerous is a valuable resource. Companies like Petroglyph pump huge volumes of water out of the ground to relieve the pressure trapping the natural gas.
Steve Gunderson, director of Colorado's water quality control division, said Petroglyph will have to build a water treatment plant before it gets a new permit to discharge water. The old permit allowed Petroglyph to release up to 8 million gallons of water daily.
Fourth-generation dairy farmer Brett Corsentino blames the discharges into the Cucharas River for ruining his corn crops. He uses river water to irrigate his crops just a few miles east of the homeowners having problems with their wells. He says the high levels of sodium in the wastewater has diminished his soil's ability to absorb water and stunted the corn's growth.
"They say, `Well, there's no proof,'" Corsentino said. "Well, we'd been getting along for generations just fine until they started pumping 8 million gallons out of this country."
Corsentino also says his herd suffered abnormally high birth and death rates and now numbers 400, down from 650. He believes the cows consumed too much sodium from the water and corn grown from it. His corn used to produce 6,000 tons of silage; this year's crop yielded 1,500 tons.
However, Corsentino says his herd is healthier and milk production has increased since drilling stopped.
"There's an obvious direct, substantial impact to Brett Corsentino's dairy," the state's Gunderson said of the drilling.
Petroglyph paid for soil tests on Corsentino's farm. They showed high levels of sodium but that it also needed more calcium, Powell said. Petroglyph and Corsentino are discussing possible treatments.
"We still don't believe we have liability for the situation," Powell said. "But we were willing to help him fix his land and get back to productivity."
Ten miles west of Walsenburg, a rushing sound emanates from a pipe that vents methane from Ben and Melanie Bounds' water well. The pipe was installed after a June 2007 explosion blew off a shed roof covering the well.
The Bounds had moved from Dallas to build what they call their dream home atop a hill with a breathtaking view of the Spanish Peaks. They say their problems started when Petroglyph began drilling nearby. They're suing the company and haul water from town to their cistern.
"If I could run the clock back, we'd have never tried this," Ben Bounds said.
"I had more methane coming out of my water well than they had out of any of their gas wells. It sounded like a locomotive going down the road," said Kent Smith, who also has a methane detector in his house. "The damage and the problems they've caused have got to be addressed, and they keep getting pushed aside and forgotten about."
Petroglyph insists it's a good neighbor. Despite the methane mystery, it's trucking water to 14 area homes and has supplied 15 homes with methane alarm systems.
___
On the Net:
Petroglyph Energy Inc., http://tinyurl.com/ybfpcco
Walsenburg 2009 Drinking Water Consumer Confidence Report for Calendar Year 2008, http://tinyurl.com/yenabct
http://news.yahoo.com/s/ap/us_methane_mystery
Sunday, November 1, 2009
Borens Calls Anti-Horse Slaughter Folk "Elitists" / & T. Boone a Boren?
Sunday, November 1, 2009
Rep. Dan Boren’s town hall conference calls reach many
BY CHRIS CASTEEL
Published: November 1, 2009
WASHINGTON — By the time Rep. Dan Boren hung up the phone in his Capitol Hill office last Monday night, nearly 9,000 people had listened to him talk about such topics as health care, energy, horse slaughtering and hunting in Honobia.
Rep. Dan Boren fields questions during a town hall meeting at the Mid-America Expo Center south of Pryor, OK Aug. 18, 2009. MICHAEL WYKE/Tulsa World
He had talked about various burgs in his eastern Oklahoma district — "There are some Borens who live in Calvin,” he told one person — and dropped names such as Ted Nugent and T. Boone Pickens.
He spent a lot of time listening and nodding as callers listed their worries about Washington.
"You threw a lot of issues out there,” Boren told one caller who had a particularly long list of grievances. "Czars and guns and Copenhagen.”
Boren, a Democrat from Muskogee, held the latest in a series of "telephone town hall” meetings last week, taking advantage of an Internet-driven means to talk to the folks back home just after casting a vote on the House floor.
Boren’s office sent out a notice to district residents earlier this month that he was going to conduct some telephone town halls and asking those interested to call with their names and phone numbers. At the appointed time, a computer called all of the numbers and linked in participants.
Zain Khan, CEO of IConstituent, the company hired by Boren’s office to set up the calls, said more than half of the 535 lawmakers in Washington have used the technology.
"It’s a growing number,” he said.
President Barack Obama, he said, had done a call with about 1 million people.
Khan said it makes contact with the congressman easier for everyone, including the constituents.
Boren, as did many lawmakers, appeared in person at town hall meetings in his district in August; several hundred people showed up for those, far more than ever before as intense feelings about government spending and health care proposals drove people out to see him.
At the time, Boren had already planned the telephone town hall meetings, committing $13,500 for a package of four such calls, and he didn’t have any in-person meetings on his schedule.
However, he hastily arranged two when attendance was surging at other lawmakers’ events and some were asking why he wasn’t appearing anywhere.
Almost 9,000 different people were on last week’s hourlong call at one time or another; there was a steady audience of about 600 throughout the call.
Boren could pick among the callers to try to get different topics, though it didn’t always work out; a caller that he thought would ask about the stimulus bill asked about hunting access.
Though he was inside Washington, Boren did all he could to distance himself from it, dismissing "elitists” who, he said, don’t know that it’s more humane to slaughter horses than to let them starve, agreeing that people should worry about "unelected bureaucrats making decisions for us,” and saying he serves on the National Rifle Association board with Ted Nugent and would never restrict gun ownership.
"I could sit here and talk all night,” Boren said as the session wound down.
Read more: http://www.newsok.com/rep.-dan-borens-town-hall-calls-reach-many/article/3413631#ixzz0VcInZ6Hc
http://www.newsok.com/rep.-dan-borens-town-hall-calls-reach-many/article/3413631
Rep. Dan Boren’s town hall conference calls reach many
BY CHRIS CASTEEL
Published: November 1, 2009
WASHINGTON — By the time Rep. Dan Boren hung up the phone in his Capitol Hill office last Monday night, nearly 9,000 people had listened to him talk about such topics as health care, energy, horse slaughtering and hunting in Honobia.
Rep. Dan Boren fields questions during a town hall meeting at the Mid-America Expo Center south of Pryor, OK Aug. 18, 2009. MICHAEL WYKE/Tulsa World
He had talked about various burgs in his eastern Oklahoma district — "There are some Borens who live in Calvin,” he told one person — and dropped names such as Ted Nugent and T. Boone Pickens.
He spent a lot of time listening and nodding as callers listed their worries about Washington.
"You threw a lot of issues out there,” Boren told one caller who had a particularly long list of grievances. "Czars and guns and Copenhagen.”
Boren, a Democrat from Muskogee, held the latest in a series of "telephone town hall” meetings last week, taking advantage of an Internet-driven means to talk to the folks back home just after casting a vote on the House floor.
Boren’s office sent out a notice to district residents earlier this month that he was going to conduct some telephone town halls and asking those interested to call with their names and phone numbers. At the appointed time, a computer called all of the numbers and linked in participants.
Zain Khan, CEO of IConstituent, the company hired by Boren’s office to set up the calls, said more than half of the 535 lawmakers in Washington have used the technology.
"It’s a growing number,” he said.
President Barack Obama, he said, had done a call with about 1 million people.
Khan said it makes contact with the congressman easier for everyone, including the constituents.
Boren, as did many lawmakers, appeared in person at town hall meetings in his district in August; several hundred people showed up for those, far more than ever before as intense feelings about government spending and health care proposals drove people out to see him.
At the time, Boren had already planned the telephone town hall meetings, committing $13,500 for a package of four such calls, and he didn’t have any in-person meetings on his schedule.
However, he hastily arranged two when attendance was surging at other lawmakers’ events and some were asking why he wasn’t appearing anywhere.
Almost 9,000 different people were on last week’s hourlong call at one time or another; there was a steady audience of about 600 throughout the call.
Boren could pick among the callers to try to get different topics, though it didn’t always work out; a caller that he thought would ask about the stimulus bill asked about hunting access.
Though he was inside Washington, Boren did all he could to distance himself from it, dismissing "elitists” who, he said, don’t know that it’s more humane to slaughter horses than to let them starve, agreeing that people should worry about "unelected bureaucrats making decisions for us,” and saying he serves on the National Rifle Association board with Ted Nugent and would never restrict gun ownership.
"I could sit here and talk all night,” Boren said as the session wound down.
Read more: http://www.newsok.com/rep.-dan-borens-town-hall-calls-reach-many/article/3413631#ixzz0VcInZ6Hc
http://www.newsok.com/rep.-dan-borens-town-hall-calls-reach-many/article/3413631
The "Other" Pickins Plan
T. Boone Behind the Push to Remove Wild Horses off of Public Lands?
Calls for increased exploration of gas, oil and wind
T. Boone to wife; "You can have the horsies honey, (as long as it dosent cost us anything) and I'll take the land and everything that comes out of it."
More Boone for the buck
By Gabby Hutchings And Valerie Pritchard
Friday, October 30, 2009
OSU students and Stillwater residents gathered in Gallagher-Iba Area Thursday to hear Boone Pickens speak about his strategy to make America less dependant on foreign oil and more dependant on domestic energies. Pickens’ fifteenth town hall meeting drew a record crowd of 4,300 people from his alma mater and the city.
The audience stands as the OSU ROTC colorguard marches the national and state flags into Gallagher-Iba Area in preparation for Boone Pickens’ town hall speech about his plan to free America from its energy crisis. His plan includes heavy investment in wind power, utilizing natural gas and creating a new electrical transmission grid.
Video from Pickens town hall meeting
Pickens: 'Cut off all automobile traffic on campus'
Boone Pickens discussed how students and the university can be more energy efficient. Also, he said he predicts will be a leader in energy technology.
Pickens uses storytelling to address naysayers
Pickens encourages young people to take action
Pickens on talk with Obama White House Chief of Staff
Boone Pickens discussed a conversation he had with Rahm Emanuel, White House Chief of Staff.
Pickens promotes Rep. Boren's energy bill
(Bloggers Note: Borens is a staunch and vocal pro-horse slaughter supporter;click on title above to read more on that relationship;
http://wildhorsewarriors.blogspot.com/2009/11/borens-calls-anti-horse-slaughter-folk.html)
Boone Pickens mentioned U.S. Rep. Dan Boren's bill, titled "New Alternative Transportation to Give Americans Solutions." The bill would promote use of compressed natural gas vehicles.
Political party not an issue in energy debate
At press conference, Pickens says it has been a good two years
After the town hall meeting, Boone Pickens met with members of the media and journalism students to discuss the Pickens Plan along with other energy-related topics.
The man with a plan told Oklahomans on Thursday at a town hall meeting that America has to reduce its dependency on foreign oil.
“The U.S. is addicted to foreign oil, and we’ve got to get our necks out of the noose,” said Boone Pickens at his town hall meeting Thursday at Gallagher-Iba Arena.
In Pickens’ fifteenth town hall meeting nationwide, OSU had the largest turnout with a crowd of 4,300 people.
“Today we’re importing 67 percent of our oil,” Pickens said. “If we don’t do anything in 10 years, we’ll be importing 75 percent and paying $300 a barrel for oil. We won’t have health care or education because there won’t be anything to go to those. This has nothing to do with politics; it’s about us. It’s our problem, and we’ve got to solve it.”
Pickens stressed the non-partisanship of the Pickens Plan and reached out to people on both sides of the political aisle.
“There’s not a Democrat or Republican angle to anything I’m talking about,” Pickens said.
The U.S. Congress is considering two bills, one in the House and one in the Senate, which would switch 6.5 million heavy-duty vehicles to natural gas. Pickens has supported this idea in his plan and sees it as the first step to the United States becoming energy independent.
The U.S. is using 25 percent of the energy produced in the world and accounts for only 4 percent of the population, Pickens said.
Pickens encouraged Oklahomans to use the resources that are available in the United States.
“Natural gas is 50 percent cleaner, a dollar a gallon cheaper, and it’s ours,” Pickens said. “That’s the key — it’s ours. We have over 350 billion barrels of natural gas. That’s more than the Saudis have.”
The second tenet of the Pickens Plan is for the United States to use its wind power to generate energy, further distancing itself from dependence on foreign countries.
“No country in the world is importing 67 percent of its oil and most of the countries don’t like us,” Pickens said. “How could we get ourselves into a spot where we’re depending on our enemies? Wind is going to happen in this country.”
Oklahoma is working to use wind as a viable source of energy for the state and hopes to expand to eventually service the whole country. Oklahoma has a team of researchers working on the Oklahoma Wind Power Initiative to set up wind farms statewide.
“We hope as we get big lines of wind turbines we can take our energy to other states, which would generate money into our economy,” said OWPI Co-director Stephen Stadler. “We want to have 20 percent of our energy from wind power by 2030.”
Oklahoma has seven wind farms and more are being built, Stadler said, who is also a geology professor at OSU. The state’s first wind farm, the Oklahoma Wind Energy Center near Woodward, was built in 2003, according to www.ompa.com. Stadler said one farm can generate energy for a couple thousand homes.
Pickens promised that OSU would not be left behind as the changes in energy take place. He said OSU can do its part to reduce energy consumption by getting rid of cars on campus, an effort that is included in the university’s master plan.
“There’s not going to be anyone who’s going to get ahead of OSU,” Pickens said. “We’ll be in the game, I can promise you that.”
***
What is the Pickens Plan?
The Pickens Plan is an effort to reduce America’s reliance on foreign oil.
The U.S. imports 25 percent of the world’s oil, yet holds only 4 percent of the population.
Pickens often says the use of foreign oil could potentially leave the United States crippled in the event of a conflict in a country like Saudi Arabia.
To reduce the risk of such a scenario, the plan proposes that the U.S. use energy methods that are within its means to create and use without foreign dependence.
There are several basic pillars to the Pickens Plan listed on
www.pickensplan.com:
* Create millions of new jobs by building out the capacity to generate up to 22 percent of our electricity from wind. And adding to that with additional solar generation capacity
* Building a 21st-century backbone electrical transmission grid
* Providing incentives for homeowners and the owners of commercial buildings to upgrade their insulation and other energy saving options
* Using America’s natural gas to replace imported oil as a transportation fuel in addition to its other uses in power generation, chemicals, etc.
Through these methods, the Pickens Plan hopes to create more stable and worthwhile sources of energy for the U.S. For more information about the Pickens Plan or to join the cause, go to www.pickensplan.com.
Related Articles
Pickens: 'Cut off all automobile traffic on campus'
Pickens encourages young people to take action
Pickens uses storytelling to address naysayers
Pickens promotes Rep. Boren's energy bill
Pickens on talk with Obama White House Chief of Staff
Political party not an issue in energy debate
At press conference, Pickens says it has been a good two years
Comments
Bandwagon Patriot
Sat Oct 31 2009 17:53
Yeah! Let's listen to this rich billionaire who got us into this mess to begin with!
Travis C
Fri Oct 30 2009 11:30
I like it. This is a good start on becoming less dependent on big oil. Keep going Mr Pickens.
Click on title above to comment;
http://www.ocolly.com/news/more-boone-for-the-buck-1.836077
The "Other" Pickins Plan;Video
http://www.metacafe.com/watch/1674912/t_boone_pickens
BLM plans to remove 2,500 MORE wild horses in NV
The Associated Press
Saturday, Oct. 31, 2009 | 5:42 p.m.
Federal land managers are seeking public comment on their plan to remove about 2,500 wild horses in northern Nevada.
Bureau of Land Management officials say the proposed gather north of Gerlach in Washoe and Humboldt counties is needed to achieve the "appropriate management level" for mustangs in the area.
They maintain it also is needed to prevent further range deterioration stemming from the current horse overpopulation in the areas.
Plans call for the gather to begin about Dec. 1 and continue through the end of February 2010.
Public comment on the BLM's preliminary environmental assessment is being accepted through Nov. 12.
The BLM also has begun removing about 420 "excess" wild horses about 30 to 45 miles southeast of Winnemucca in Pershing and Humboldt counties.
http://www.lasvegassun.com/news/2009/oct/31/blm-plans-to-remove-2500-wild-horses-in-nv/
Saturday, Oct. 31, 2009 | 5:42 p.m.
Federal land managers are seeking public comment on their plan to remove about 2,500 wild horses in northern Nevada.
Bureau of Land Management officials say the proposed gather north of Gerlach in Washoe and Humboldt counties is needed to achieve the "appropriate management level" for mustangs in the area.
They maintain it also is needed to prevent further range deterioration stemming from the current horse overpopulation in the areas.
Plans call for the gather to begin about Dec. 1 and continue through the end of February 2010.
Public comment on the BLM's preliminary environmental assessment is being accepted through Nov. 12.
The BLM also has begun removing about 420 "excess" wild horses about 30 to 45 miles southeast of Winnemucca in Pershing and Humboldt counties.
http://www.lasvegassun.com/news/2009/oct/31/blm-plans-to-remove-2500-wild-horses-in-nv/
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