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In 1970, Philip Bjork described a small fossil bear from the Pliocene Glenn’s Ferry Formation of southwestern Idaho. Based on a single m1 as the holotype, he was understandably perplexed and named it Ursus abstrusus. Additional material has not been forthcoming since its initial description and this bear has remained an enigma. Hence the discovery in the 1990s of a similar bear from more complete fossils in the Pliocene of the Canadian High Arctic throws much needed light onto the mystery (Fig. 1). In addition to resolving the riddle of Ursus abstrusus, with a moderately complete skull and lower jaws with associated postcranials, the new materials present a rare opportunity to fill a large gap in our knowledge of North American High Arctic at a time in the early Pliocene when mean annual temperatures in the High Arctic were ~22 °C warmer than the present polar temperatures1. Such a warm climate supported an extensive boreal-type forest biome2,3, radically different from today’s arid polar tundra4. Thus the evidence of this primitive bear in an extinct polar forest offers valuable information about the diet and habitat of this basal ursine.
Map of key basal ursine localities in Asia, Europe, and North America and routes of dispersal. The Beaver Pond site is indicated by red star 1 within Arctic Circle and the type locality of Protarctos abstrusus in Idaho is the red star 2, near the edge of the map. For much of the Neogene the Bering isthmus would have served as a land bridge, allowing for an Arctic biotic continuity between Eurasia and North America. By 3.5 Ma the Bering Strait was open, although mammalian dispersal could have been permitted by seasonal sea ice. Pliocene (5 Ma) paleogeography map modified from Wang et al.86 Fig. 1 and Scotese87.
The fossil records of basal ursines has improved with recent discoveries of three relatively complete specimens of basal ursines from China – a very advanced Ursavus 5 and a very primitive Protarctos 6,7. We are now in a position to more tightly bracket the North American Pliocene bears as well as providing a wealth of information about cranial anatomy of basal ursines previously unavailable. The present description of P. abstrusus and a phylogenetic analysis combining molecular and morphological data of most fossil and living ursines for the first time allows a much more detailed view of the history of bears at the critical juncture of their initial diversification. In addition, the presence of dental caries provides insight into the evolutionary history of diet of ursines.
Family Ursidae Fischer van Waldheim, 18179.
Subfamily Ursinae Fischer von Waldheim, 1817.
Tribe Ursini Fischer von Waldheim, 1817.
Protarctos boeckhi 11; P. abstrusus (Bjork, 1970); P. yinanensis (Li, 1993); and P. ruscinensis 12.
Pliocene of Europe, Pliocene and early Pleistocene of Asia, and Pliocene of North America.
Protarctos abstrusus is a basal ursine the size of a small Asian black bear. It has a flat forehead covering an uninflated frontal sinus; very high sagittal crest that projects backward to overhang the occipital condyle (Figs 2 and 3); P4 with a small, distinct protocone situated at the level of carnassial notch; M2 talon modestly developed but not very elongated (Figs 4 and 5); no pre-metaconid on m1, smooth posterior surface of m1 trigonid without zigzag pattern, presence of a distinct pre-entoconid; m2 shorter than m1 (Fig. 6 and Supplementary Fig. S2). It is about the same size as P. boeckhi and differs from it in the relatively smaller p4, presence of a tiny cuspule on lingual side of posterior crest in p4, and presence of a pre-entoconid on m1. P. abstrusus is also similar in size to P. yinanensis and can be distinguished from the latter in a flattened forehead, posteriorly projected sagittal crest, p4 posterior accessory cuspule on lingual side of posterior crest, an m1 pre-entoconid, and less elongated M1 and M2. P. abstrusus differs from P. ruscinensis by its lack of unique features of the latter such as a deep angular process, reduction of P4 protocone, and a single entoconid on m1.
Right (A) and left (B) lateral views of the skull of Protarctos abstrusus (CMN 54380), composite laser scans of five individual cranial fragments, assembled in Avizo Lite (version 9.0.0) and visualized in PointStream 3D Image Suite (Version 3.2.0.0).
Dorsal (A) and ventral (B) views of the skull of Protarctos abstrusus (CMN 54380), composite laser scans of five individual cranial fragments, assembled in Avizo Lite (version 9.0.0) and visualized in PointStream 3D Image Suite (Version 3.2.0.0).
Left upper posterior teeth (P4-M2) of Protarctos abstrusus, CMN 54380; (A) buccal, and (B), lingual views.
Stereo photos of left upper posterior teeth (P4-M2) of Protarctos abstrusus, CMN 54380.
Stereo photos of lower cheek teeth of Protarctos abstrusus, occlusal views. (A), holotype, a cast of UMMP V53419 (cast, USNM 170872) from the Hagerman fossil site in Idaho, (B), right (CMN 52078B), and (C), left (CMN 52078A) dentaries from the Beaver Pond site in Nunavut.
There is much disagreement over the generic taxonomy of ursines. Most mammalogists and some paleontologists include all living black bears (Asian and North American), brown bears, and polar bears in the genus Ursus but allow separate generic status for the sloth bear, Melursus, and sun bear, Helarctos 14,15,16,17,18,19, although some include all of above in Ursus 20,21 and others use Thalarctos for the polar bear22,23. With a deep time perspective, vertebrate paleontologists either adopt some subgeneric names, such as Ursus (Melursus) for sloth bear, Ursus (Selenarctos) for Asian black bear, Ursus (Euarctos) for American black bear, Ursus (Protarctos) for some extinct bears7,24,25,26 or elevate some of them to generic status6,27. In his remarks about carnivoran classification, Kretzoi10 erected a new genus, Protarctos, for Ursus boeckhi Schlosser, 1899. Kretzoi’s name has been adopted either at full generic rank6 or as a subgenus7, although many authors still prefer a more inclusive usage of Ursus 19,24,25,28,29,30. In our cladistic framework in this study, some generic reassignment becomes necessary to maintain monophyly, especially in light of the general preference to giving sloth and sun bears distinct generic status.
Protarctos abstrusus (Bjork, 1970), new combination.
Ursus abstrusus Bjork, 1970: Ruez 2009:43.
UMMP V53419 (locality UM-Ida 79-65), left dentary fragment with p4 alveolus, m1, and m2-3 alveoli (Fig. 6 and Supplementary Fig. S6) from Glenn’s Ferry Formation, southwestern Idaho; Hagerman Local Fauna, 3.48–3.75 Ma, early Pliocene.
CMN 54380 (accession number CR-97-18; same as below), a fragmentary partial skull including much of dorsal roof, left and right maxillary, partial left and right basicranial area, and isolated left and right petrosals, with left I1, I2-3 alveoli, P4-M2, and right I1, I2-3 alveoli, C1, P1-3 alveoli, P4-M1, and M2 alveolus; CMN 52078-A (CR-93-8A), partial left dentary with detached canine (CR-92-24), p1-3 alveoli, p4-m2, and m3 alveolus; CMN 52078-B (CR-93-8B), partial right dentary with detached canine, p1-3 alveoli, p4-m3; CMN 51779-A (CR-97-33A), nearly complete left and right pelvis; CMN 51779-B (CR-97-33B), nearly complete left femur; CMN 53990 (CR-92-1), nearly complete axis vertebra; NUFV 303 (SF-06-15), nearly complete right radius; NUFV 304 (SF-06-17), cervical vertebrae, C3; CMN 53989 (CR-92-2), partial lumbar vertebra (museum label: 7th?); CMN 53984 (CR-95?-0), left tarsal IV; CMN 53988 (CR-96-43), right metacarpal III (museum label: slightly smaller than a modern male black bear; maximum length 68.4); CMN 53982 (CR-93-69), metacarpal or metatarsal IV (maximum length 60.2); CMN 53985 (CR-95-33), proximal phalanx (maximum length 33.0 mm); CMN 53980 (CR-93-36), proximal phalanx (maximum length 36.5); CMN 53981 (CR-93-43), left medial phalanx (maximum length 28.7 mm); CMN 53983 (CR-94-102), medial phalanx (maximum length 22.6 mm; width 14.5 mm); CMN 53987 (CR-96-31), distal phalanx (maximum length 31.3 mm).
The Beaver Pond site, 78° 33′N 82° 22′W, is a >20 m succession of fine to coarse cross-bedded fluvial sands conformably overlain by cobble gravels interpreted to be glacial outwash and capped by 2 m of till on the northeastern edge of an interfluvial plateau southeast of Strathcona Fiord on Ellesmere Island, Nunavut31,32 (red star 1 in Fig. 1). A peat deposit near the base of the sequence, up to 2.4 m thick, produced exceptionally well-preserved plant, invertebrate and vertebrate remains (Supplementary Fig. S2), and is disconformably overlaying light-colored, tilted Eocene sediments. Abundant beaver-cut branches and cut saplings of larch trees suggest that the peat growth may have been promoted by beaver activity. Further supporting this view are the skeletal remains of multiple beaver individuals, and two clusters of beaver-cut branches found within the peat unit, at least one of which was interpreted to be the core of a dam32,33. Using terrestrial cosmogenic nuclide (TCN) burial dating34, four samples of quartz-rich coarse sand from above the peat unit yielded a weighted mean date of >3.4 + 0.6/−0.4 Ma, suggesting the peat accumulation was formed during a mid-Pliocene warm phase31.
At 78°N, the Beaver Pond site on Ellesmere Island is presently extremely cold and arid, with ice sheets, permafrost, and sparse vegetation. During the mid-Pliocene, the Canadian High Arctic would have been forested, and the latitudinal gradient was much less than modern, so that although global temperatures were 3-4 degrees warmer than modern, the mean annual temperature of the terrestrial High Arctic was ~22 °C warmer (Fletcher et al. 2017).
The Beaver Pond site comprises the remains of a Pliocene forest wetland community that was dominated by larch (Larix groenlandii), and also supported alder (Alnus) and birch (Betula), spruce (Picea), pine (Pinus) and cedar (Thuja)1. Multiple proxies consistently suggest a Pliocene mean annual temperature at the Beaver Pond site of slightly above freezing, with plant community composition indicating a warmest summer air-temperatures of ~20 °C1. Coldest winter temperatures have been recently estimated from vegetation to be ~−12 °C, though a prior estimation from beetle fauna suggest −27 °C1. Precipitation at the Beaver Pond site was also much greater in the Pliocene. Modern (1960–1990) Mean Annual precipitation in the area is 104 mm/year, whereas in the Pliocene the plant community implies precipitation to have been ~550 mm/year1.
In fossil vertebrates, the Beaver Pond site, in combination with the nearby Fyles Leaf Bed fossil site, has produced four native North American mammals: a castoroidine beaver Dipoides sp., an archaeolagine rabbit Hypolagus cf. H. vetus, a small canine dog Eucyon, and a cameline camel (c.f. Paracamelus) 31,35. Of these, Eucyon and Paracamelus had arrived at Eurasia near the Mio-Pliocene boundary, and they may be closely related to the ancestral stock that gave rise to the Eurasian forms. The rest of the faunal components include a frog, a percid fish, Sander teneri, of Eurasian origin, and ten mammal taxa which share considerable similarity to equivalent-aged faunal assemblages in East Asia, including a neomyine shrew Arctisorex polaris, a microtine-like cricetid similar to Microtodon or Promimomys, a large wolverine (cf. Plesiogulo), a fisher (Martes/Pekania)-like carnivore, a marten-like carnivore Martes cf. M. americana, a weasel Mustela sp., a meline badger Arctomeles sotnikovae, a three-toed horse Plesiohipparion, a possible cervoid Boreameryx braskerudi of unknown origin, plus an ursine bear “Ursus abstrusus” described herein4,32,35. The third author has also identified a duck closest to the Greater Scaup (Aythya marila).
Known only in the Pliocene (Blancan) of southwestern Idaho and Ellesmere Island, Nunavut of Canadian Arctic. A possible record from Buckeye Creek Local Fauna of Nevada has been attributed to this species36, but it is too poorly known to be certain.
Skeletal remains of the fossil bear were collected in different years (1992, 1993, 1996, 1997, 2006) from the Beaver Pond site (Supplementary Fig. S1). The skull specimen, with upper teeth (CMN 54380) appears to be a young adult (Figs 2–5, Supplementary Part 3 and Figs S3–5). The exoccipital-basioccipital, exoccipital-supraoccipital, and premaxilla-maxilla sutures are largely fused, whereas the internasal and interfrontal elements are unfused. In the modern black bear this degree of fusion of the cranial elements suggests the individual is between five and seven years old13. The upper teeth, particularly the premolar and molar cheek teeth, are essentially pristine and show wear only on the tip of the upper right canine, incisors, and anterior edge of M1, which also suggest a relatively young individual (Figs 4 and 5). In contrast, there is extensive wear on the lower teeth (CMN 52078-A and CMN 52078-B), indicating the mandibles are from an individual much older than that of the cranium (Fig. 6 and Supplementary Fig. S6). The symphysial sutures of the left and right dentaries occlude perfectly, and the wear patterns on the lower teeth on either side are comparable, indicating a single individual for the lower jaws. There are thus a minimum of two individuals. Judging by the lack of fusion between epiphysis and diaphysis, the postcranial elements may belong to the younger individual represented by the skull (CMN 54380).
A phylogenetic analysis was conducted using 24 taxa and 59 morphological characters (Supplementary Tables 5–6. The taxa included five fossil ursines (Ursavus primaevus, U. tedfordi, Protarctos abstrusus, P. yinanensis and Euarctos minimus) and all seven living ursines (Tremarctos ornatus, Melursus malayanus, Ursus thibetanus, U. americanus, U. arctos and U. maritimus). A new single shortest tree was found by New Technology search in TnT with a tree length of 145, consistency index of 0.51, and retention index of 0.70 (Fig. 7). The topology of modern taxa was constrained using nuclear DNA evidence of Kutschera et al.37 and the whole genome analysis of Kumar et al.38. Assuming the molecular relationship is correct, six extra morphological steps (homoplasies) are required to account for this new relationship. Protarctos abstrusus appears basal to all modern bears, including Tremarctos, the spectacle bear of South America. Moreover, its phylogenetic position suggests a Eurasian origin for this lineage. Asia appears to be of vital importance in the early diversification of ursines: Not only is Asia home to all basal ursines still alive today (sloth bear, sun bear, and Asian black bear) but the most advanced stem form, Ursavus tedfordi, leading to the ursines is also found in east Asia5, as well as early ursines such as Ursus yinanensis 6,7. (see SI for further discussion).
Cladogram of select extinct and extant ursids based on our character matrix (Supplementary Table S6) within a molecular backbone phylogeny of Kutschera et al.37 Fig. 2A. This tree is six steps longer than the unconstrained tree (see text for explanation). Taxa in green represent living bears. Sleeping bear symbols indicate hibernators.
Using regression parameters derived from species of living Ursidae, log10 (body mass) = 2.02*log10 (skull length) −2.8039. Table 10.2, we arrive at an estimated body mass of 97 kg for Protarctos abstrusus from its skull length (condylobasal length of Table S1) of 234 mm (CMN 54380). If m1 length is used (20.1 mm, see Table S2), a less desirable proxy39, an estimate of 79 kg results. In absence of more superior proxies such as long bone cortical thickness40,41, body mass estimate based on skull length is preferred here. P. abstrusus is thus close to average male body mass of American black bear from California (86 kg) and heavier than their female counterparts (58 kg)42.
Judging from dental wear, the partial skull (CMN 54380) and mandibles (CMN 52078-A, B) from the Beaver Pond site represent two individuals of Protarctos abstrusus. Both show evidence of dental caries, particularly on teeth that have sustained the most wear; a pit usually develops on the exposed dentine surface (Fig. 8). We used microCT scanning to investigate features of the left upper second left molar (M2), and the right side lower first (m1) and second molars (m2) of the mandibular specimen, CMN 52078-A. The M2 has deep occlusal (Fig. 8, M2.1) and proximal (Fig. 8, M2.2) surface lesions. Scans show that both lesions are characterized by a thin zone of demineralization at the cavity boundary and deeper sclerosis of the dentinal tubules. There is also evidence of mild formation of reparative (secondary) dentin formation in the adjacent pulp associated with each lesion. The lower carnassial, m1, revealed five structures of interest (Fig. 8, m1.1–m1.5). Feature m1.1 (Fig. 8, m1.1) is a fragment of dentin that is slightly elevated from a worn surface because of cracks in the desiccated dentin. Feature m1.2 represents a series of carious lesions extending apically to the worn surface (Fig. 8, m1.2). Three small pit-like lesions and one large lesion (feature m1.3) are identified. MicroCT scans reveal that lesions undercut the worn surface and show slight demineralization of their margins. Demineralization of dentinal tubules is a reaction to actively spreading caries while dentinal sclerosis and formation of reparative dentin are evidence of protective responses. Feature m1.3 (Fig. 8, m1.3) demonstrates subsurface demineralization extending about 0.1 mm from the margins of the cavity. Features m1.4 and m1.5 are early carious lesions (Fig. 8, m1.4 and m1.5, respectively) that clearly extend below the worn surface. Seven features of interest were identified in the occlusal surface of m2 (Fig. 8, m2.1-m2.7). Five early carious lesions are identified under the scale bars of m2.1, m2.3, m2.4, m2.5 and m2.6. Feature m2.2 shows demineralization of the pulpal surface of the lesion. There is also evidence of demineralization of the dentinal tracts between the depth of the lesion and the pulp as well as a mildly sclerotic peripheral zone. Further, it is most likely that some reparative (secondary) dentin has formed in the region of the pulp adjacent to the demineralized dentinal tracts. Feature 2.7 also shows slight demineralization of the lesion surface as well as slight demineralization of dentinal tracks just pulpal to the lesion as well as deeper sclerotic changes.
MicroCT scans of U. abstrusus dental caries; all cross sectional images oriented buccolingually through depth of lesion except as noted. m1 (CMN 52078-A), occlusal view of m1 (reversed from left side) and reconstructed view of m1 with enamel in yellow and dentin in green; m1.1, worn and slightly elevated surface with no caries (as control); m1.2, small dentinal caries; m1.3, note demineralization of dentin wall extending approximately 0.1 mm and dentinal sclerosis pulpal to depth of lesion; m1.4, small carious lesion, note also loss of enamel on lingual surface due to breakage; m1.5, small carious lesion. m2 (CMN 52078-B), occlusal view of m2 and reconstructed view of m2 with enamel in yellow and dentin in blue; m2.1, small lesion on left; m2.2, carious lesion revealing demineralization of the pulpal surface, demineralization of the dentinal tracts extending to the pulp, and probably reparative (secondary) dentin formation in the pulp underlying the demineralized dentinal tracts.; m2.3, early lesion on left; m2.4, early lesion; m2.5, early lesion; m2.6, small lesion; m2.7, note areas of demineralization on the periphery of the lesion and demineralization and deeper sclerosis of dentinal tubules running towards the pulp. M2 (CMN 54380, left side), occlusal view of M2 and reconstructed view of M2 with enamel in yellow and dentin in pink; M2.1, note subsurface demineralization at depth of lesion, deeper sclerosis of dentinal tubules, and apparent constriction of distal pulp horn by reparative dentin; M2.2, slice oriented mesiodistally through depth of lesion, note subsurface demineralization in depth of this proximal surface lesion, deeper sclerosis of dentinal tubules, and mild constriction of pulp horn by reparative dentin. Note also proximal surface caries of distal surface of adjacent M1. Scale = 1.00 mm.
For comparative purposes, we assessed the prevalence of caries in modern American black bear populations (Ursus americanus) using museum collections, as well as published data from museum collections and a living population. Dental caries in extant black bears are seen in both museum specimens and in vivo bears (0–44% prevalence) (Supplementary Table S3), in contrast to their general absence in other carnivores43. Moreover, examination of northern boreal forest black bears from Canadian Museum of Nature collections revealed prevalence of caries increasing with age (Supplementary Table S4).
Analysis of new fossil material of Protarctos abstrusus from the North America High Arctic shows that, although ecomorphologically similar to the modern North American black bear (Ursus americanus), P. abstrusus represents a basal ursine. The most prominent cranial features of P. abstrusus are its relatively short rostrum, flat forehead above the orbit, and high sagittal crest that extends posteriorly and overhangs the occipital condyles (Fig. 9), characters that generally signal primitive status within Ursinae. P. abstrusus appears to have been an isolated immigration event from Eurasia to North America, separate from Ursus, representing a time of Asian-North American high latitude floral and faunal interchange32, when the high-latitude forests of Asia and North America were connected across the Beringian isthmus.
Artist restoration of lateral view of skull and lower jaw of Protarctos abstrusus based on a composite of partial skull (CMN 54380) and right dentary (CMN 52078-B). Missing bones (ascending ramus, mandibular condyle, and angular process) are based on living black bears. Missing teeth (I2-3, P1-3, i2-3, p1-3, and m3) are restored based on their alveoli. The stage of wear on the lower teeth is drawn to match with those of the upper teeth. Art by Xiaoming Wang.
The American black bear, by contrast, appears in the North America fossil record in the Early Pleistocene as a result of an independent dispersal event from Eurasia. Fossil records of true American black bear, Ursus americanus Pallas, range from Irvingtonian to late Rancholabrean44,45. From the Irvingtonian age, Brown46 described abundant materials from the Conard Fissure, Arkansas, which he referred to U. americanus. Gidley47 named Ursus (Euarctos) vitabilis from the Cumberland Cave, Maryland, which was later referred to Euarctos vitabilis 48. By late Rancholabrean black bears appear widespread throughout North America49. Several species or subspecies of late Pleistocene black bears have been named, which were sometimes confused with brown bears because of overlap in size and pronounced sexual dimorphism50,51, such as Ursus optimus from late Pleistocene McKittrick brea deposits of southern California52, which was determined by Graham53 to be a brown bear. Graham53 concluded that only one species, Ursus americanus, is valid throughout the Pleistocene with late Pleistocene fossil forms being larger than their living descendants, suggesting continuity of the black bear linage in North America, as was also pointed out earlier by Kurtén54.
Within Ursinae, P. abstrusus represents a stage of dental evolution that is intermediate in its specialization for ingesting plants, and significantly less than modern bears - polar bears being an exception, showing evolutionary reversal toward increased carnivory. The evolutionary history of ursines is generally characterized by a shift in dental specialization from carnivory to increased omnivory, with the posteriormost molars of more recent forms being more elongate, and wrinkled, allowing for more crushing surface (Table S2). Although, morphologically, P. abstrusus is less specialized than modern bears, the presence of dental caries suggests the diet of this 3.5 million-year-old transitional form already included a significant carbohydrate component.
Dental evidence from the beaver pond site P. abstrusus appears to be from two individuals, including an apparent young adult, and both show dental caries, suggesting their diets included high amounts of fermentable carbohydrates early in their lives. Simple sugars, such as glucose and fructose, are readily metabolized by many bacteria found in the oral biofilm into various acids. These acids demineralize enamel and dentin and may lead to dental caries55. Cariogenicity is highly correlated to the amount56,57 and frequency58,59 of sugar intakes. The type of sugar consumed and associated dental caries are also found to differ. Despite their high sugar content, raw fruits by themselves are not always implicated for cariogenicity, although high frequency (up to 17 times a day) may induce caries60. In humans, there is convincing evidence that free-sugar consumption of more than four times a day or more than 6–10% energy intake will increase incidents of dental caries57. Historically in humans, increase in prevalence of dental caries has generally been associated with dietary shifts, linked with a reduction of nomadic lifestyles61, the development of agriculture in Neolithic populations, and even more so with industrialization62.
In bears, carbohydrate intake may account for the appearance of dental caries (Tables S3 and S4), and may also be related to sedentary behavior, particularly for northern bears which hibernate. Northern black bears hibernate five to seven months, and survive better if they have high fat reserves63. In bears, the optimal diet for production of fat reserves appears to be one of high-energy carbohydrates (e.g., fruits) and low in protein. High-latitude berries (such as bearberry) often have a wide, circumpolar distribution and can be found in a variety of northern habitats including forest, woodland, wetland and tundra habitats64. Black bears and grizzly bears in boreal forest eat berry fruits in the autumn, but some fruits, such as cranberry and bearberry, frequently remain on the vine over winter and are important to bears coming out of hibernation in the early spring65,66,67. Bearberry (Arctostaphylos uva-ursi) fruits are relished and highly important to black bear in Pelly River Valley of Yukon Territory66. Berries are found in nearly 80% of bear scats collected during the fall period and consistently represent a large component of black bear diet in Alaska, with blueberries (Vaccinium uliginosum) being the most common65. However, fruit intake may be mitigated by factors such as fruit abundance and body size. For example, larger bodied bears appear to tend toward carnivory, as they are less efficient than smaller bears at exploiting small fruits68. These factors may underlie the high variation observed in caries prevalence seen among populations of modern black bears (Table S3).
Floral macrofossils from the Beaver Pond shows a diversity of berries would have been available to U. abstrusus, including Empetrum nigrum (crowberry), Vaccinium sp. (e.g., blueberry, lingonberry), Rubus idaeus (raspberry)69, and their abundance may have been enhanced following forest fires, which is evident at this site33. Therefore berries may have constituted a component of the Beaver Pond bear’s diet, particularly during the peak seasons, and their high sugar and acid contents could have resulted in the observed pronounced dental caries. The bear’s habitat may also have included honeybees, but this is speculative. The genus Apis includes honeybees that are today the basis of the honey industry. The genus appears to have originated in Europe dispersing into Asia, Africa as well as North America70. In North America the fossil record of this lineage is represented by a single species (Apis nearctica) from the Miocene (13 MA) of Nevada71. The most likely route that the Apis lineage took to arrive in North America would have been via the Bering Isthmus70, which was present throughout the Neogene until ~5–7 Ma;72. This land connection would have allowed for the existence of expansive high-latitude terrestrial continuity, spanning the northern reaches of the Eurasian and North American continents. Thus Apis in North America may have originally inhabited this Arctic biome before dispersing southward into the mid-latitudes of North America. In which case, the polar P. abstrusus may have had opportunity to supplement its diet with honey.
Aside from the Beaver Pond site fossil bear, all other basal ursines are known from the northern mid-latitudes (30–40° N) of Eurasia and North America (Fig. 1, and Supplementary Information). The lack of fossil bears in the intervening latitudes reflects the scarcity of northern Neogene vertebrate fossil sites in these regions. Thus, the discovery of the Beaver Pond site P. abstrusus at 78°N fills a substantial geographical gap. The finding also shows that early ursines were adapted to northern forests with snowy winters. Moreover, the Beaver Pond site bear is a small-bodied bear with dental caries and associated with a polar forest, rich in seasonal fruits (Fig. 10), suggesting that the northern populations of P. abstrusus likely consumed large amounts of sugar-rich foods in the fall, a pattern consistent with preparation for hibernation seen in modern bears. If so, the Beaver Pond site bear represents the earliest known, and most primitive bear, to have hibernated. Modern ursid hibernators include high latitude/altitude Asian black bears (U. thibetanus), northern American black bears (U. americanus), all brown bears (U. arctos), and female polar bears (U. maritimus)73. Also, the fossil species of cave bears (U. spelaeus and U. deningeri) are inferred to have hibernated74. All living bears also employ a reproductive strategy of embryonic diapause (delayed implantation) with implicit adaptive value of reducing the cost of reproduction by truncating embryonic development and of optimizing birth season at the most appropriate time75. Furthermore, these reproductive cycles may regulate metabolism by facilitating earlier entry of pregnant females into winter-dormancy state75,76. In the context of the phylogeny of modern bears the northern americanus-arctos-spelaeus-maritimus clade appears to have acquired hibernation from a single ancestor. The case for Asian black bear is ambiguous because its nearest relatives are not known to hibernate; namely the sloth bear (Melursus) of India, the sun bear (Helarctos) of Southeast Asia. The early diverging spectacled bear (Tremarctos) of South America is also a non-hibernator (Fig. 6). If the northern adapted Beaver Pond bear was a hibernator, then hibernation can be traced to the ancestor of all modern bears. This would imply that the Asian black bear retains the primitive condition, and the Eurasian ancestor of the spectacled bear, which would have passed through cold Beringian habitat when it first immigrated to North America77, also employed hibernation as part of its repertoire for winter survival. In this evolutionary scenario modern non-hibernating bears, are interpreted to have secondarily lost this trait, in association with adaptation to warmer habitats.
Reconstruction of the mid-Pliocene Protarctos abstrusus in the Beaver Pond site area during the late-summer. An extinct beaver, Dipoides, is shown carrying a tree branch in water. Plants include black crowberry (Empetrum nigrum) with ripened berries along the path of the bear, dwarf birch (Betula nana) in foreground; sweet gale (Myrica gale) carried by the beaver, sedges in water margins, flowering buckbeans along the mounds behind the beaver, and larch trees in distant background. Art by Mauricio Antón based on research of this paper and with input on plant community from Alice Telka.
Our phylogenetic analysis combined character matrices from Abella et al.78 and Qiu et al.5 and added several relevant basal ursines not present in either of the above authors (Table S1). All seven living ursine bears were included in the analysis. Our use of the term “ursine(s)” refers to the tribe Ursini, which include all taxa that fall within the clade of living sloth, sun, black, brown, and polar bears plus their fossil relatives to the exclusion of the tremarctine bears (Tremarctini). Together ursines and tremarctines constitute the subfamily Ursinae. Living ursids examined in this study include: Tremarctos ornatus, AMNH CA 2861, LACM 72530; Melursus ursinus, LACM 88916; Helarctos malayanus, LACM 52380; Ursus thibetanus, AMNH CA 1981, LACM 30781; Ursus americanus, AMNH CA 2886, AMNH CA 35005, LACM 92299; Ursus arctos, LACM 31257; Ursus maritimus, LACM 86096. Character coding and manipulation are done on Mesquite program79 and phylogenetic analysis is performed on TnT (version 1.1, Dec. 2013)80. Initial search resulted in a single shortest tree of 139 steps (tree search parameters: Implicit Enumeration and New Technology search; both methods yielded the same result). This tree has a number of nodes for living ursids that contradict molecular phylogeny. We then constrained our search using the topology of extant taxa, fixing the relationship based on nuclear DNA in Kutschera et al.37 and Kumar et al.38.
For estimates of magnetic ages we adopt the ATNTS2012 Geomagnetic Polarity Time Scale (GPTS) of Hilgen et al.81. Our usage of the Plio-Pleistocene boundary (Neogene-Quaternary boundary) follows the recent decision by the International Commission on Stratigraphy at the boundary of magnetochrons C2r-C2An (2.581 Ma)82.
Skull elements of Protarctos abstrusus were scanned using an Arius 3-D laser scanner, digitally reassembled in PointStream software (Version 3.2.0.0)83 and converted into a triangulated polymesh surface using Paraform84. This model was later adjusted in Avizo 9.085 by two of us (XW and SCW). Cranial measurements on the digital model were taken by tools provided in the above software.
MicroCT examinations were made of m1 and m2 from CMN 52078 A (left dentary), and left M2 from CMN 54380 using a SkyScan 1173 scanner operating at 70 kV, 114 microA and the images were reconstructed with an isotropic voxel size of 12.08941 micrometer for m1 and 10.30843 micrometer for m2. The reconstructed BMP images were imported into Fiji (V. 2.0.0-rc-30/1.49t) where they were reoriented to make the occlusal plane horizontal to the image edge, cropped to the size of the crown, contrast adjusted and converted to 8 bit tif files. The resulting images were imported into Avizo 9.0.0 Lite85 for analysis. The enamel and dentin were segmented and 3D models constructed. Cross-sectional images (oriented buccolingually) were made through regions of interest.
Data on prevalence of carious lesions in modern populations of American black bear (U. americanus) were collected from published data (see Table S3). Also the upper teeth of 57 specimens from northern populations from the collections of Canadian Museum of Nature were examined for the presence of caries: CMNMA 15004, 17790, 17791, 17933, 17953, 17958, 17959, 17970, 18038, 1826, 1830, 1831, 1833, 1834, 1836, 1840, 1841, 1842, 1844, 1905, 19598, 19816, 19817, 19818, 21811, 21812, 21813, 21814, 21817, 21880, 22009, 24245, 24247, 26695, 26696, 30874, 30875, 30876, 30877, 31764, 31765, 34109, 34335, 34336, 34337, 34338, 34339, 34340, 34341, 34342, 36926, 37352, 39744, A20682, A20683, A20684, 9577. Age class for the latter was determined from the fusion of cranial element13.
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We thank Paul Bloskie and Alex Tirabasso (then of the Canadian Museum of Nature) for laser-scanning Beaver Pond bear specimens and digitally reassembling the skull specimen. The third author is especially grateful to Clayton Kennedy (then of the Canadian Museum of Nature) for finding and excavating several of the most important Beaver Pond bear specimens. He also thanks: John Fyles (deceased, formerly Geological Survey of Canada); John Tener (Canadian Museum of Nature volunteer); Natalia Rybczynski (then a university student volunteer); Kim Aaris-Sorenson (Zoological Museum, University of Copenhagen); and David Gill (Canadian Museum of Nature volunteer) for field assistance; and John V. Matthews, Jr. (formerly Geological Survey of Canada); Richard Tedford (deceased, formerly American Museum of Natural History); Richard Hulbert (formerly Georgia Southern University); Rick Zakrzewski (Sternberg Memorial Museum); and Marianne Douglas (formerly University of Toronto) for laboratory assistance. MicroCT scans were performed by Dr. F. Gaides (Carleton University). We benefited from advice by Alice Telka regarding reconstruction of vegetation. We greatly appreciate the generosity of sharing molecular data by Verena Kutschera and Axel Janke of Senckenberg Gesellschaft für Naturforschung. We are indebted to Marina Sotnikova of the Geological Institute, Russian Academy of Sciences, who kindly provided photos of the Udunga ursid as well as some Russian literature. We thank Qiu Zhanxiang at IVPP for granting us access to Chinese ursid specimens. We greatly appreciate the assistance of Jim Dines for access to Mammalogy collections at the Natural History Museum of Los Angeles County. Data were obtained from the Neotoma Paleoecology Database (http://www.neotomadb.org/), and the work of the data contributors and the Neotoma community is gratefully acknowledged. Financial and field support for collecting most of the Beaver Pond site fossils was provided by the Canadian Museum of Nature, the Canadian Polar Continental Shelf Program. Research support NR provided by The Garfield Weston Foundation. Travel for the first author was provided by a grant from the National Science Foundation (EAR-0958704 to XW).
C.R.H. and N.R. discovered and collected the fossil. N.R., C.R.H. and R.H.T. provided the stratigraphic and geochronologic data and interpretations. X.W. provided expertise in comparative morphology and phylogenetic analysis. S.C.W. carried out the CT analyses and interpretation of dental caries. X.W., N.R., C.R.H. and S.C.W. contributed to writing the manuscript. N.R. and X.W. provided edits and supplementary text.

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text:
Ph.D. degree in computer vision and machine learning from University of Dundee in 2011.
Best Image Processing Oral Presentation: V. John, A. Boyali and S. Mita, “Gabor Filter and Gershgorin Disk-based Convolutional Filter Constraining for Image Classification”, International Conference of Robotics and Automation Systems, 2017.
Best Image Processing Oral Presentation: V. John, L. Zheming and S. Mita. 2016. Robust Traffic Light and Arrow Detection using Optimal Camera Parameters and GPS-based Prior, IEEE Asia-Pacific Conference on Intelligent Robot Systems.
Toyoda Award for the Best Researcher: V. John. Deep learning for Intelligent Vehicle Applications. 2016.
Best Application Paper Award: V. John, Z. Liu, C. Guo, S. Mita and K. Kidono. 2015. RealTime Lane Estimation using Deep Features and Extra Trees Regression, Pacific Rim Symposium on Image and Video Technology.
Nvidia Award for Best Poster: V. John, Z. Liu and S. Mita. 2015. Deep learning-based real-time lane detection for intelligent vehicles. GPU Tech conference, Tokyo, Japan.
Invited Best Paper: V. John, Q. Long, Z. Liu and S. Mita. 2015. Automatic Calibration and Registration of Lidar and Stereo Camera without Calibration Objects. IEEE International Conference on Vehicular Electronics and Safety, Yokohama, Japan.
Capture using Charting and Manifold Constrained Particle Swarm Optimisation. British Machine Vision Conference Student Workshop.
Invited Book Chapter: V. John, S. Ivekovic and E. Trucco. 2010. Markerless Human Motion Capture using Hierarchical Particle Swarm Optimisation. Chapter in Computer Vision, Imaging and Computer Graphics: Theory and Applications, Communications in Computer and Information Science, volume 68, 2010.
University of Dundee Discovery Scholarship: Awarded the Scholarship, in addition to the research council (EPSRC) studentship, (total scholarship valued at £65000) for my PhD research.
Research Scholarship: Awarded 50% scholarship to pursue Masters in Robotics at Carnegie Mellon University.

matches: V. V. V. V. V. V. V.


And then the unannounced updates will be forced onto your system anyway?
But wait, in the original articles, automatic updating WAS TURNED OFF!
Disable the Windows update service.
"The poster formerly known as 'The Poster Formerly Known as Nina DiBoy'"
How am I supposed to shut this "feature" off?!?
rights in the digital age are not frivolous."
data, without consent of the owner.
Source: SL 1982, ch 300, § 3; SL 1984, ch 282, § 1; SL 2002, ch 109, § 27.
(6) For a violation of subdivision (7), a Class 2 felony.
Source: SL 1982, ch 300, § 4; SL 1984, ch 282, § 3; SL 2002, ch 109, § 29.
If the Update Service is disabled, No.
notification, or permission sounds a lot like a definition of Malware.
As has been pointed out, paragraph 7 in the agreement.
(loansharking). Let's say the that rates above 60% P.A. are illegal.
have been what customers want.
myself to turn it off.
- being unaware that it had been silently turned on.
Then I turn that service off, again, too.
indistinguishable from maleware. A root-kit, or something.
And there are laws against that kind of thing.
in this. Or that's what I think anyway.
How fukkin dumb are you mr genius?
Your not in the UK then..
in Southern California, the center of scams, fraud and spam.
another outright lie from you.
Not an insult, a fact. Not a lie, a fact.
sale which you can't do.
clever, he will throw in some blustering for good measure.
Try reading my answer to him you dimwitted moron liar.
time less valuable than yours?
Update /service/ is turned on?
knowledge, even when the users have turned off auto-updates.
and clever, he will throw in some blustering for good measure.
On Fri, 14 Sep 2007 21:47:02 -0700, "Jupiter Jones [MVP]"
to play attorney and removing all doubt.
be capable of logic and understanding a simple question.
You believe in channeling too?
YOU think he would think.
would you care what He thinks, huh?
You're not that smart or quick, mentally speaking.
Figures you wouldn't understand. Look it up.
I asked you what YOU think. Is that question too complicated for you?
point...even if you had one.
I bet it really hurts!


For the Plaintiff: Michael White, Esq.
A court evaluates a Rule 12(b)(6) motion to dismiss only on whether a plaintiff's claim has been adequately stated in the complaint, and does not resolve the facts or merits of the case. A court's review is limited to the complaint's contents and the court must assume the facts alleged therein are true and view them in the light most favorable to the plaintiff. Dismissal can only be granted if it appears to a certainty that no relief could be granted under any facts which could be proven in support of the complaint. Latte Motors, Inc. v. Hainrick, 7 FSM Intrm. 190, 192 (Pon. 1995).
Averment of a foreign judgment states a claim upon which relief could be granted. Allegations that the foreign judgment was obtained without notice are outside the complaint and cannot be considered in evaluating a Rule 12(b)(6) motion to dismiss. Latte Motors, Inc. v. Hainrick, 7 FSM Intrm. 190, 192 (Pon. 1995).
When a party in support of or in opposition to a Rule 12(b)(6) motion to dismiss submits matters outside of the pleadings a court has complete discretion to exclude those matters from consideration or to accept those matters and treat the motion as one for summary judgment. Latte Motors, Inc. v. Hainrick, 7 FSM Intrm. 190, 192 (Pon. 1995).
On April 11, 1994, Plaintiff Latte Motors, Inc. filed the complaint in this action. The complaint seeks to have this Court domesticate a foreign judgment rendered against Defendant Justy Hainrick so that the foreign judgment can be enforced against defendant in the Federated States of Micronesia.
Plaintiff's concise one and a half page complaint makes only four allegations in support of its claim. First, plaintiff alleges that the parties are of diverse citizenship, and, accordingly, that this Court has jurisdiction over this action pursuant to article XI, section 6(b) of the FSM Constitution. Second, plaintiff alleges that on November 7, 1987, the trial division of the Court of the Commonwealth of the Northern Mariana Islands ("CNMI") entered a judgment against defendant for the sum of $4,817.46, plus interest at a rate of 9% per annum from the date of judgment. Third, plaintiff alleges that defendant still owes $4,267.46 plus interest on the CNMI judgment, and, fourth, that plaintiff is entitled to have the judgment of the CNMI Court reduced to a judgment of this Court.
a claim upon which relief could be granted. As the principal support for his motion to dismiss, defendant asserts that he is unaware of the CNMI Court ever having entered judgment against him and that he never received service of process in the CNMI action.
A FSM Civil Rule 12(b)(6) motion to dismiss requires the Court to evaluate whether a plaintiff's claim has been adequately stated in the complaint. 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 294 (1990). A 12(b)(6) motion is not a mechanism through which the facts or merits of a case are resolved. Id.
In evaluating the merits of a 12(b)(6) motion, the Court's review is limited to the contents of the complaint. 5A Wright & Miller, supra, § 1356, at 298. The Court must assume that the facts alleged in the complaint are true, and the facts and inferences drawn from the complaint must be viewed by the Court in the light most favorable to party opposing the motion to dismiss. Mailo v. Twum-Barimah, 2 FSM Intrm. 265, 267 (Pon. 1986). The Court may grant a 12(b)(6) motion to dismiss only if it appears to a certainty that no relief could be granted under any state of facts which could be proven in support of the complaint. Faw v. FSM, 6 FSM Intrm. 33, 37 (Yap 1993).
Taking all of the allegations of plaintiff's complaint to be true, as the Court must, plaintiff's complaint states a cause of action against defendant. The complaint purports to establish the identity of the plaintiff and defendant, the jurisdiction of this Court over this matter, the existence of a foreign judgment against defendant, and the non-payment of that judgment by defendant. Having established the identity of the parties and the jurisdiction of this Court, the averment of a foreign judgment against defendant establishes a claim upon which relief could be granted. This Court, under the proper circumstances, will adopt and enforce a foreign judgment in the FSM. J.C. Tenorio Enterprises, Inc. v. Sado, 6 FSM Intrm. 430, 432 (Pon. 1994) (recognizing that foreign judgments may be enforced by this Court). Based upon the allegations in plaintiff's complaint, and without evaluating the merits of plaintiff's claim, the Court finds that plaintiff has alleged sufficient facts, which if true, could result in a judgment for plaintiff, and, accordingly, defendant's motion to dismiss for failure to state a claim must be denied.
In support of its motion to dismiss, plaintiff argues that he never received service of process and that he had no knowledge of the CNMI action, and, thus, the CNMI judgment may not be enforced against him. These allegations constitute matters outside of the pleadings and, as noted above, may not be considered by the Court in evaluating the merits of a 12(b)(6) motion to dismiss. When either party, in support or in opposition to a 12(b)(6) motion, submits matters to the Court outside of the pleadings, the Court has two options. The Court either may accept those outside matters and treat the motion as one for summary judgment pursuant to FSM Civil Rule 56 or exclude those matters and continue to treat the motion as one for dismissal for failure to state a claim upon which relief can be granted. FSM Civ. R. 12(b). At this very early stage of the proceedings, the Court will not convert defendant's motion into one for summary judgment, and, accordingly, the Court will not consider defendant's claims of lack of notice in ruling upon defendant's motion to dismiss. 5A Wright & Miller, supra, § 1366, at 491 (recognizing that the Court has complete discretion in deciding whether to accept materials outside of the pleadings which are submitted in conjunction with a 12(b)(6) motion).
Accordingly, it is hereby ordered that defendant's motion to dismiss is denied.


60-3101 Citation and construction of act.
60-3104 Commencement of proceedings; persons seeking relief on behalf of minor child; forms; no docket fee; confidentiality of certain matters, exceptions.
60-3106 Hearings; temporary orders pending hearing, modification.
60-3107 Orders for relief of abuse, procedure; modifications; inconsistent orders; violation of orders, criminal violations and penalties.
60-3108 Notice of protection orders.
60-3112 Entering protection orders into the national criminal information center protection order file.
60-3101. Citation and construction of act.
(a) K.S.A. 60-3101 through 60-3111, and amendments thereto, shall be known and may be cited as the protection from abuse act.
(b) This act shall be liberally construed to promote the protection of victims of domestic violence from bodily injury or threats of bodily injury and to facilitate access to judicial protection for the victims, whether represented by counsel or proceeding pro se.
History: L. 1979, ch. 92, § 1; L. 1987, ch. 228, § 1; July 1.
(1) Intentionally attempting to cause bodily injury, or intentionally or recklessly causing bodily injury.
(2) Intentionally placing, by physical threat, another in fear of imminent bodily injury.
(3) Engaging in any sexual contact or attempted sexual contact with another person without consent or when such person is incapable of giving consent.
(B) any lewd fondling or touching of the person of either the minor or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the minor or the offender, or both.
(b) "Intimate partners or household members" means persons who are or have been in a dating relationship, persons who reside together or who have formerly resided together or persons who have had a child in common.
(4) time since termination of the relationship, if applicable.
History: L. 1979, ch. 92, § 2; L. 1980, ch. 177, § 1; L. 1983, ch. 201, § 1; L. 1987, ch. 228, § 2; L. 1994, ch. 335, § 8; L. 1998, ch. 94, § 1; L. 2002, ch. 142, § 1; L. 2017, ch. 66, § 2; July 1.
Any district court shall have jurisdiction over all proceedings under the protection from abuse act. The right of a person to obtain relief under the protection from abuse act shall not be affected by the person's leaving the residence or household to avoid further abuse. Any petition under this act seeking orders regarding a custody determination, as defined in K.S.A. 2011 Supp. 23-37,102, and amendments thereto, shall state that information required by K.S.A. 2011 Supp. 23-37,209, and amendments thereto, and the basis under which child-custody jurisdiction is sought to be invoked.
History: L. 1979, ch. 92, § 3; L. 1980, ch. 177, § 2; L. 1983, ch. 201, § 2; L. 1996, ch. 208, § 5; L. 2000, ch. 171, § 81; L. 2012, ch. 162, § 82; May 31.
60-3104. Commencement of proceedings; persons seeking relief on behalf of minor child; forms; no docket fee; confidentiality of certain matters, exceptions.
(a) An intimate partner or household member may seek relief under the protection from abuse act by filing a verified petition with any judge of the district court or with the clerk of the court alleging abuse by another intimate partner or household member.
(c) The clerk of the court shall supply the forms for the petition and orders, which shall be prescribed by the judicial council.
(d) Service of process served under this section shall be by personal service and not by certified mail return receipt requested. No docket fee shall be required for proceedings under the protection from abuse act.
(e) If the court finds that the plaintiff’s address or telephone number, or both, needs to remain confidential for the protection of the plaintiff, plaintiff’s minor children or minor children residing with the plaintiff, such information shall not be disclosed to the public, but only to authorized court or law enforcement personnel and to the commission on judicial performance in the discharge of the commission’s duties pursuant to article 32 of chapter 20 of the Kansas Statutes Annotated, and amendments thereto.
History: L. 1979, ch. 92, § 4; L. 1980, ch. 177, § 3; L. 1983, ch. 201, § 3; L. 1986, ch. 115, § 96; L. 1987, ch. 228, § 3; L. 1990, ch. 202, § 25; L. 1996, ch. 208, § 6; L. 1998, ch. 94, § 2; L. 2002, ch. 142, § 2; L. 2008, ch. 145, § 11; L. 2012, ch. 138, § 3; L. 2018, ch. 110, § 2; July 1.
(a) When the court is unavailable, a verified petition, accompanied by a proposed order, may be presented to any judge of the district court. The judge may grant relief in accordance with K.S.A. 60-3107(a)(1), (2), (4) or (5), and amendments thereto, or any combination thereof, if the judge deems it necessary to protect the plaintiff or minor child or children from abuse. An emergency order pursuant to this subsection may be granted ex parte. Immediate and present danger of abuse to the plaintiff or minor child or children shall constitute good cause for the entry of the emergency order.
(b) An emergency order issued under subsection (a) shall expire on 5:00 p.m. on the first day when the court resumes court business. At that time, the plaintiff may seek a temporary order from the court.
(c) The judge shall note on the petition and any order granted, including any documentation in support thereof, the filing date, together with the judge’s signature, and shall deliver them to the clerk of the court on the next day of the resumption of business of the court.
History: L. 1979, ch. 92, § 5; L. 1980, ch. 177, § 4; L. 1986, ch. 115, § 97; L. 1987, ch. 228, § 4; L. 1996, ch. 208, § 7; L. 1998, ch. 94, § 3; L. 2018, ch. 110, § 3; July 1.
60-3106. Hearings; temporary orders pending hearing, modification.
(a) Within 20 days of the filing of a petition under this act a hearing shall be held at which the plaintiff must prove the allegation of abuse by a preponderance of the evidence and the defendant shall have an opportunity to cross-examine the petitioner’s witnesses and present evidence on the defendant's behalf. Upon the filing of the petition, the court shall set the case for hearing and advise the parties of the right to be represented by counsel.
(b) Prior to the hearing on the petition and upon a finding of good cause shown, the court on motion of a party may enter such temporary relief orders in accordance with subsection (a)(1), (2), (4) or (5) of K.S.A. 60-3107 and amendments thereto, or any combination thereof, as it deems necessary to protect the plaintiff or minor children from abuse. Temporary orders may be granted ex parte. Immediate and present danger of abuse to the plaintiff or minor children shall constitute good cause for purposes of this section. No temporary order shall have the effect of modifying an existing order granting legal custody, residency, visitation or parenting time unless there is sworn testimony at a hearing to support a showing of good cause.
History: L. 1979, ch. 92, § 6; L. 1980, ch. 177, § 5; L. 1987, ch. 228, § 5; L. 1998, ch. 94, § 4; L. 2000, ch. 171, § 23; L. 2012, ch. 138, § 4; July 1.
60-3107. Orders for relief of abuse, procedure; modifications; inconsistent orders; violation of orders, criminal violations and penalties.
(1) Restraining the defendant from abusing, molesting or interfering with the privacy or rights of the plaintiff or of any minor children of the parties. Such order shall contain a statement that if such order is violated, such violation may constitute assault as provided in K.S.A. 21-3408, and amendments thereto, battery as provided in K.S.A. 21-3412, and amendments thereto, domestic battery as provided in K.S.A. 2005 Supp. 21-3412a, and amendments thereto and violation of a protective order as provided in K.S.A. 2005 Supp. 21-3843, and amendments thereto.
(2) Granting possession of the residence or household to the plaintiff to the exclusion of the defendant, and further restraining the defendant from entering or remaining upon or in such residence or household, subject to the limitation of subsection (d). Such order shall contain a statement that if such order is violated, such violation shall constitute criminal trespass as provided in subsection (c) of K.S.A. 21-3721, and amendments thereto, and violation of a protective order as provided in K.S.A. 2005 Supp. 21-3843, and amendments thereto. The court may grant an order, which shall expire 60 days following the date of issuance, restraining the defendant from cancelling utility service to the residence or household.
(3) Requiring defendant to provide suitable, alternate housing for the plaintiff and any minor children of the parties.
(4) Awarding temporary custody and residency and establishing temporary parenting time with regard to minor children.
(5) Ordering a law enforcement officer to evict the defendant from the residence or household.
(6) Ordering support payments by a party for the support of a party's minor child, if the party is the father or mother of the child, or the plaintiff, if the plaintiff is married to the defendant. Such support orders shall remain in effect until modified or dismissed by the court or until expiration and shall be for a fixed period of time not to exceed one year. On the motion of the plaintiff, the court may extend the effect of such order for 12 months.
(7) Awarding costs and attorney fees to either party.
(8) Making provision for the possession of personal property of the parties and ordering a law enforcement officer to assist in securing possession of that property, if necessary.
(9) Requiring any person against whom an order is issued to seek counseling to aid in the cessation of abuse.
(10) Ordering or restraining any other acts deemed necessary to promote the safety of the plaintiff or of any minor children of the parties.
(3) the issuing court made specific findings of abuse against both the plaintiff and the defendant and determined that both parties acted primarily as aggressors and neither party acted primarily in self-defense.
(c) Any order entered under the protection from abuse act shall not be subject to modification on ex parte application or on motion for temporary orders in any action filed pursuant to K.S.A. 60-1601 et seq., prior to such section’s repeal or transfer, or K.S.A. 38-1101 et seq., and amendments thereto, or articles 22 or 27 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto. Orders previously issued in an action filed pursuant to K.S.A. 60-1601 et seq., prior to such section’s repeal or transfer, or K.S.A. 38-1101 et seq., and amendments thereto, or articles 22 or 27 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto, shall be subject to modification under the protection from abuse act only as to those matters subject to modification by the terms of K.S.A. 2011 Supp. 23-3201 through 23-3207, and 23-3218 and article 27 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto, and on sworn testimony to support a showing of good cause. Immediate and present danger of abuse to the plaintiff or minor children shall constitute good cause. If an action is filed pursuant to K.S.A. 2011 Supp. 23-3201 through 23-3207, or 23-3218 or articles 22 or 27 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto, during the pendency of a proceeding filed under the protection from abuse act or while an order issued under the protection from abuse act is in effect, the court, on final hearing or on agreement of the parties, may issue final orders authorized by K.S.A. 2011 Supp. 23-3201 through 23-3207, and 23-3218 and articles 22 and 27 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto, that are inconsistent with orders entered under the protection from abuse act. Any inconsistent order entered pursuant to this subsection shall be specific in its terms, reference the protection from abuse order and parts thereof being modified and a copy thereof shall be filed in both actions. The court shall consider whether the actions should be consolidated in accordance with K.S.A. 60-242, and amendments thereto. Any custody or parenting time order, or order relating to the best interests of a child, issued pursuant to the revised Kansas code for care of children or the revised Kansas juvenile justice code, shall be binding and shall take precedence over any such custody or parenting order involving the same child issued under the protection from abuse act, until jurisdiction under the revised Kansas code for care of children or the revised Kansas juvenile justice code is terminated. Any inconsistent custody or parenting order issued in the revised Kansas code for care of children case or the revised Kansas juvenile justice code case shall be specific in its terms, reference any pre-existing protection from abuse order and the custody being modified, and a copy of such order shall be filed in the preexisting protection from abuse case.
(d) If the parties to an action under the protection from abuse act are not married to each other and one party owns the residence or household, the court shall not have the authority to grant possession of the residence or household under subsection (a)(2) to the exclusion of the party who owns it.
(e) Subject to the provisions of subsections (b), (c) and (d), a protective order or approved consent agreement shall remain in effect until modified or dismissed by the court and shall be for a fixed period of time not to exceed one year, except as provided in subsection (e)(1) and (e)(2).
(1) Upon motion of the plaintiff, such period may be extended for one additional year.
(2) Upon verified motion of the plaintiff and after the defendant has been personally served with a copy of the motion and has had an opportunity to present evidence and cross-examine witnesses at a hearing on the motion, if the court determines by a preponderance of the evidence that the defendant has violated a valid protection order or (A) has previously violated a valid protection order, or (B) has been convicted of a person felony or any conspiracy, criminal solicitation or attempt thereof, under the laws of Kansas or the laws of any other jurisdiction which are substantially similar to such person felony, committed against the plaintiff or any member of the plaintiff’s household, the court shall extend a protective order for not less than two additional years and may extend the protective order up to the lifetime of the defendant. No service fee shall be required for a motion filed pursuant to this subsection.
(f) The court may amend its order or agreement at any time upon motion filed by either party.
(g) No order or agreement under the protection from abuse act shall in any manner affect title to any real property.
(h) If a person enters or remains on premises or property violating an order issued pursuant to subsection (a)(2), such violation shall constitute criminal trespass as provided in subsection (c) of K.S.A. 21-3721, and amendments thereto, and violation of a protective order as provided in K.S.A. 2005 Supp. 21-3843, and amendments thereto. If a person abuses, molests or interferes with the privacy or rights of another violating an order issued pursuant to subsection (a)(1), such violation may constitute assault as provided in K.S.A. 21-3408, and amendments thereto, battery as provided in K.S.A. 21-3412, and amendments thereto, domestic battery as provided in K.S.A. 2005 Supp. 21-3412a, and amendments thereto, and violation of a protective order as provided in K.S.A. 2005 Supp. 21-3843, and amendments thereto.
History: L. 1979, ch. 92, § 7; L. 1980, ch. 177, § 6; L. 1983, ch. 201, § 4; L. 1987, ch. 228, § 6; L. 1988, ch. 220, § 1; L. 1990, ch. 210, § 1; L. 1992, ch. 76, § 1; L. 1996, ch. 208, § 8; L. 1998, ch. 94, § 5; L. 2000, ch. 171, § 24; L. 2001, ch. 177, § 10; L. 2002, ch. 142, § 3; L. 2012, ch. 138, § 5; L. 2012, ch. 162, § 83; L. 2013, ch. 133, § 22; July 1.
60-3108. Notice of protection orders.
A copy of any order under this act shall be issued to the plaintiff, the defendant and the police department of the city where the plaintiff resides. If the plaintiff does not reside in a city or resides in a city with no police department, a copy of the order shall be issued to the sheriff of the county where the order is issued or registered.
History: L. 1979, ch. 92, § 8; L. 1980, ch. 177, § 7; L. 2001, ch. 177, § 4; July 1.
Except as otherwise provided in this act, any proceeding under this act shall be in accordance with chapter 60 of the Kansas Statutes Annotated and shall be in addition to any other available civil or criminal remedies.
History: L. 1979, ch. 92, § 9; July 1.
If, upon hearing, the court finds a violation of any order or consent agreement, the court may find the defendant in contempt pursuant to K.S.A. 20-1204a.
History: L. 1979, ch. 92, § 10; L. 1980, ch. 177, § 8; July 1.
60-3112. Entering protection orders into the national criminal information center protection order file.
(a) All temporary, amended, final and other protection from abuse orders issued pursuant to article 31 of chapter 60 of the Kansas Statutes Annotated, and amendments thereto, or protection orders issued based on the laws of another jurisdiction which are entitled to full faith and credit in Kansas pursuant to the provisions of 18 U.S.C. 2265, and amendments thereto, shall be entered into the national criminal information center protection order file. All emergency protection from abuse orders issued pursuant to article 31 of chapter 60 of the Kansas Statutes Annotated, and amendments thereto, and such emergency orders issued based on the laws of another jurisdiction which are entitled to full faith and credit in Kansas pursuant to the provisions of 18 U.S.C. 2265, and amendments thereto, may be entered into the national criminal information center protection order file. A copy of these orders shall be delivered by the clerk of the court to the sheriff of the county where the order is issued or registered. The sheriff's office shall immediately enter the order into the national criminal information center and other appropriate databases after all mandatory identifiers are available. If the order is a foreign protective order, the sheriff's office shall contact the issuing jurisdiction to verify the order and request that such jurisdiction enter the order into the national criminal information center and other appropriate databases. Any modification of an order shall be forwarded immediately by the clerk of the court to the sheriff's office with jurisdiction to enforce the modified order. The sheriff's office shall ensure the accuracy of the entries and the court shall ensure the validity of the orders.
(3) a foreign protective order has been invalidated by either a Kansas court or a foreign court with jurisdiction over such order.
(c) This section shall be part of and supplemental to the protection from abuse act.
History: L. 2001, ch. 177, § 3; L. 2002, ch. 142, § 4; July 1.


text:
Brady applies to sentencing mitigation evidence, not just trial evidence.
The government often forgets this, so remind them, and if they disagree, remind the court.
And make them apply the Judge Pregerson Sudikoffstandard approved by the Ninth Circuit, not the appellate standard for reversal.
Brady v. Maryland is two-pronged. Its declaration of a constitutional right to disclosure of exculpatory material says there is mandatory disclosure of anything which bears on guilt or on punishment, and prosecutors all too frequently forget about the second requirement for disclosure.
United States v. Feeney, 501 F. Supp. 1324, 1334 (D. Colo. 1980) (emphasis added). This opinion then goes on to supply a good discussion of how and why Brady applies to mitigating sentencing evidence just as much as exculpatory trial evidence.
And it’s not just a 30-year old Colorado district court opinion you have to work with. For one thing, Brady itself was a sentencing case. See Feeney, 501 F. Supp. at 1334 (“It is deserving of comment that Brady v. Maryland dealt only with punishment.”). While the defendant in Brady was challenging both his conviction and his death sentence, the Supreme Court found the withheld evidence relevant only to sentencing and held it proper for the court of appeals to affirm the conviction but vacate the sentence. See Brady, 373 U.S. at 88, 90-91. This makes sense only if the duty recognized in Brady was one that extended to sentencing as well as trial.
Then there’s court of appeals decisions that recognize the applicability of Brady at sentencing, including our Ninth Circuit. It recognized the applicability of Brady to sentencing in bothUnited States v. Plunk, 153 F.3d 1011 (9th Cir. 1998) and United States v. Mikaelian, 168 F.3d 380 (9th Cir. 1999). In Plunk, the defendant sought undisclosed impeachment information, and the court acknowledged that “[p]ursuant to Brady, ‘the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.’” Plunk, 153 F.3d at 1028. In Mikaelian, the court quoted the same language from Brady that it had quoted inPlunk and cited Plunk as “applying Brady at sentencing.”Mikaelian, 168 F.3d at 388-89. The court did reject the ultimateBrady claims in these cases, but only because in Plunk the information was not in the possession of the prosecution but only in the possession of the attorney for the cooperating witness, see Plunk, 153 F.3d at 1028, and in Mikaelian, the defendant “[d]id not allege that the government ha[d] withheld any evidence favorable to him,” id., 168 F.3d at 389.
There are cases from other circuits in which sentences have actually been vacated because of Brady violations at sentencing, moreover. Examples are United States v. Weintraub, 871 F.2d 1257 (5th Cir. 1989) and United States v. Severson, 3 F.3d 1005 (7th Cir. 1993). In Weintraub, the court vacated a sentence where the government withheld evidence impeaching trial testimony the lower court had relied on in determining drug quantity at sentencing. See Weintraub, 871 F.2d at 1265. InSeverson, the court vacated a sentence and remanded for reconsideration of rulings on the Sentencing Guidelines obstruction of justice and acceptance of responsibility adjustments based on Brady material disclosed by a prosecutor just prior to oral argument. See Severson, 3 F.3d at 1012-13.
So don’t let the government think it’s ethical and due process obligations are over just because it got its guilty plea or conviction. Remind it that its Brady obligation continues. Also remind it – and the court if necessary – of the Judge PregersonSudikoff standard that I discussed two posts ago (see “A Third Government Misunderstanding: About Its Brady Obligation” linked in the “Recent Posts” column at the right) and that has been cited with approval by the Ninth Circuit. It’s not the appellate “materiality” standard – whatever that might mean in the sentencing context – that applies at the district court level. The government is obligated to disclose any “evidence favorable to the accused,” which means any evidence “which relates to guilt or punishment, and which tends to help the defense by either bolstering the defense’s case or impeaching prosecution witnesses.” United States v. Sudikoff, 36 F. Supp. 2d 1196, 1199 (C.D. Cal. 1999) (citations omitted) (emphasis added). And for another thought on the difference between that pretrial/presentence Brady standard and the post-conviction/post-sentence standard, consider comments by Justice Kennedy at an oral argument inSmith v. Cain, quoted and discussed in the Ninth Circuit Defender’s blog which is linkedhere.
[W]ith all respect, I think you misspoke when you – when you were asked what is – what the test for when Brady material must be turned over. And you said whether or not there is a reasonable probability – reasonable likelihood; pardon me – a reasonable probability that the result would have been different. That’s the test for when there has been a Brady violation. You don’t determine your Brady obligation by the test of a Brady violation. You’re transposing two very different things. And so that’s incorrect.
And so keep pushing them.

matches: v. v. v. v. v. v. v. v. v.