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THE CITY OF ILOILO, Represented by HON. JERRY P. TREÃ‘AS, City Mayor, Petitioner, v. HON. JUDGE EMILIO LEGASPI, Presiding Judge, RTC, Iloilo City, Branch 22, and HEIRS OF MANUELA YUSAY, Represented by SYLVIA YUSAY DEL ROSARIO and ENRIQUE YUSAY, JR., Respondents.
Via a Petition for Certiorari and Prohibition with Prayer for Issuance of a Writ of Preliminary Injunction and Temporary Restraining Order, the City of Iloilo, represented by Mayor Jerry P. TreÃ±as, seeks the nullification and/or modification of the Order dated 05 June 2002 of Honorable Emilio Legaspi, Presiding Judge, Regional Trial Court, Branch 22, Iloilo City, denying its Motion for Reconsideration of the court's Order dated 15 April 2002, holding in abeyance the resolution of the Motion for Issuance of Writ of Possession until after it shall have rested its case.
Petitioner City of Iloilo, represented by Mayor Jerry P. TreÃ±as, filed an Amended Complaint4 for Eminent Domain against private respondents Heirs of Manuela Yusay, represented by Sylvia Yusay del Rosario and Enrique Yusay, Jr.5 The subject of the same is Lot No. 935 of the Cadastral Survey of Arevalo covered by TCT No. T-67506.
Private respondents filed an Answer,6 dated 25 September 2001, to which petitioner filed a Reply,7 dated 19 October 2001.
WHEREFORE, in view of the foregoing, Atty. Benedicto is given ten (10) days from today within which to file an Opposition to the pending Motion For Issuance of Writ of Possession, furnishing copy of the same to plaintiff's counsel who has the same period to file a Reply.
A. THAT THE LOWER COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DENYING THE MOTION FOR RECONSIDERATION DATED MAY 9, 2002 AS CONTAINED IN ITS ORDER OF JUNE 5, 2002, AND IN HOLDING THAT PETITIONER'S MOTION FOR ISSUANCE OF WRIT OF POSSESSION BE RESOLVED AFTER HEREIN PETITIONER HAS CONVINCED THE TRIAL COURT THAT IT HAS A MERITORIOUS CASE OF EMINENT DOMAIN, DESPITE THE PROVISIONS OF SECTION 2, RULE 67 OF THE 1997 RULES OF CIVIL PROCEDURE AND DESPITE THE RULING OF THE SUPREME COURT IN THE CASE OF "ROBERN DEVELOPMENT CORPORATION v. JUDGE JESUS V. QUITAIN, ET AL."
As to its Amended Complaint, petitioner maintains that the same is sufficient in form and substance since it has complied with Section 19 of Rep. Act No. 7160 (1991 Local Government Code) and Section 1, Rule 67 of the 1997 Rules of Civil Procedure. It explains that since public respondent has ordered the parties to proceed with the Pre-Trial Conference and trial of the case, it can be concluded that the Amended Complaint is sufficient in form and substance.
In compliance with Section 19 of the 1991 Local Government Code, petitioner says it deposited the amount of P2,809,696.50 with the Regional Trial Court of Iloilo, which is equivalent to fifteen percent (15%) of the fair market value of the property sought to be expropriated based on its current tax declaration. It further argues that in the cases of Robern Development Corporation v. Judge Jesus Quitain, et al.,24 and Salvador Biglang-Awa v. Hon. Judge Marciano I. Bacalla, et al.,25 the duty to issue a Writ of Possession becomes a ministerial duty upon the trial court without necessity of a hearing once the provisional deposit under Section 2 of Rule 6726 has been complied with.
In its Reply, petitioner avers that the order of 15 April 2002 became final only after fifteen (15) days from the time the same was received by it on 26 April 2002, and not fifteen (15) days from the time the order was made in open court on 15 April 2002.
Petitioner argues that there is nothing in the rules which prohibits it from reversing its position with respect to the issuance of the writ of possession in light of Section 2, Rule 67 of the 1997 Rules of Civil Procedure which allows taking immediate possession of property sought to be expropriated upon compliance with said section. Further, it adds that its stand to seek immediate possession of the property is supported by the Robern and Biglang-awa cases.
It insists that there is no waiver or estoppel on its part. There is no provision of law which sets a time limit within which to file a motion for the issuance of a writ of possession. It reiterated that the sufficiency of the form and substance of the Amended Complaint can be determined and resolved by the lower court through an examination of the allegations contained therein and if the same complies with the requisites set forth in Section 19 of Rep. Act No. 7160 and Section 1 of Rule 67.28 Thus, there is no necessity of a trial before the lower court can resolve the Motion for Issuance of a Writ of Possession.
Finally, it argues that the Filstream29 cases are not applicable. It adds that the provisions of Rep. Act No. 7279 which private respondents allege as not to have been complied with are not conditions precedent for the exercise of the power of eminent domain.
We first rule on the issue of whether the Order dated 15 April 2002, which was dictated in open court, was already final when petitioner filed a Motion for Reconsideration on 09 May 2002. Petitioner maintains that the motion for reconsideration was filed before the order became final fifteen (15) days from the time it received a copy thereof in writing, and not from the time the same was dictated in open court as claimed by private respondents.
In the case at bar, the Motion for Reconsideration filed by petitioner was filed before the 15 April 2002 order became final. The order dictated in open court had no juridical existence before it is set in writing, signed, promulgated and served on the parties. Since the order orally pronounced in court had no juridical existence yet, the period within which to file a motion for reconsideration cannot be reckoned therefrom, but from the time the same was received in writing. Petitioner had fifteen (15) days from its receipt of the written order on 26 April 2002 within which to file a motion for reconsideration. Thus, when it filed the motion for reconsideration on 09 May 2002, the said motion was timely filed.
Sec. 19. Eminent Domain. - A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property.
In the case at bar, petitioner avers that the Amended Complaint it filed complies with both requisites, thus entitling it to a writ of possession as a matter of right and the issuance thereof becoming ministerial on the part of the lower court even without any hearing. On the other hand, private respondents allege that the Amended Complaint is not sufficient in form and substance since it failed to allege compliance with the mandatory requirements for the exercise of the power of eminent domain for purposes of socialized housing.
Section 1. The complaint. - The right of eminent domain shall be exercised by the filing of a verified complaint which shall state with certainty the right and purpose of expropriation, describe the real or personal property sought to be expropriated, and join as defendants all persons owning or claiming to own, or occupying, any part hereof or interest therein, showing, so far as practicable, the separate interest of each defendant. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made in the complaint.
The Court finds the Amended Complaint sufficient in form and substance, and the amount of P2,809,696.50 deposited with the Regional Trial Court of Iloilo is equivalent to fifteen percent (15%)33 of the fair market value of the property sought to be expropriated per current tax declaration.
On the averment of private respondents that the Amended Complaint failed to allege compliance with the mandatory requirements34 for the exercise of the power of eminent domain for purposes of socialized housing as interpreted in the Filstream cases, it appears that the Amended Complaint did contain allegations showing compliance therewith.35 However, whether there is, indeed, compliance with these requirements, the Court deems it not proper to resolve the issue at this time. Hearing must be held to establish compliance.
In City of Manila v. Serrano,36 this Court ruled that "hearing is still to be held to determine whether or not petitioner indeed complied with the requirements provided in Rep. Act No. 7279. x x x The determination of this question must await the hearing on the complaint for expropriation, particularly the hearing for the condemnation of the properties sought to be expropriated." From the foregoing, it is clear that an evidentiary hearing must be conducted if compliance with the requirements for socialized housing has been made. This hearing, however, is not a hearing to determine if a writ of possession is to be issued, but whether there was compliance with the requirements for socialized housing.
For a writ of possession to issue, only two requirements are required: the sufficiency in form and substance of the complaint and the required provisional deposit. In fact, no hearing is required for the issuance of a writ of possession. The sufficiency in form and substance of the complaint for expropriation can be determined by the mere examination of the allegations of the complaint. In this case, the sufficiency of the Amended Complaint was further confirmed by public respondent when he set the case for pre-trial and hearing.
We likewise find private respondents' claim that petitioner cannot change its position regarding the immediate issuance of the writ of possession on the ground of estoppel, to be untenable.
First, estoppel may be successfully invoked only if the party fails to raise the question in the early stages of the proceedings.37 In the case before us, petitioner, through its counsel, undeniably committed a mistake when it agreed that the resolution of its Motion for Issuance of Writ of Possession be made by public respondent after a hearing is conducted and after it has adduced its evidence. To remedy this, petitioner immediately filed a Motion for Reconsideration. The filing thereof was precisely for the purpose of rectifying the error it committed. With the timely filing of the motion for reconsideration, petitioner cannot be held in estoppel because it right away asked the court to nullify the agreement it entered into. The filing of the motion for reconsideration which was done at the earliest possible time clearly negates the presence of estoppel.
Second, under the facts of the case, estoppel should not apply because petitioner is simply following the procedure laid down by the rules and jurisprudence. Under Section 1938 of Rep. Act No. 7160 (law governing exercise of eminent domain by local government units [LGU]) and Section 239 of Rule 67 of the Revised Rules of Civil Procedure (law governing exercise of eminent domain by entities other than LGUs), and in the cases of Robern Development Corporation v. Quitain, et al., and Biglang-awa v. Bacalla, et al., a prior hearing is not required before a writ of possession can be issued. As above discussed, a complaint, sufficient in form and substance, and the required deposit, are the only requirements before a writ of possession can be issued. Thus, petitioner should not be prevented from changing and correcting its position when the same is in accord with the rules and jurisprudence.
Private respondents argue that petitioner waived its right to ask for the immediate possession of Lot No. 935 since it took the latter eight (8) months and twelve (12) days from the filing of the Amended Complaint, and nine (9) months and thirteen (13) days from the filing of the Original Complaint, before it filed the Motion for Issuance of Writ of Possession.
Petitioner did not waive its right. Section 19 of Rep. Act No. 7160 does not put a time limit as to when a local government may immediately take possession of the real property. Said section provides that the local government unit may take immediate possession of the property upon the filing of the expropriation proceedings and upon making a deposit of at least fifteen percent (15%) of the fair market value of the property based on its current tax declaration. As long as the expropriation proceedings have been commenced and the deposit has been made, the local government unit cannot be barred from praying for the issuance of a writ of possession.
WHEREFORE, the instant petition is GRANTED. The assailed orders of respondent judge in Civil Case No. 01-26801 dated 05 June 2002 and 15 April 2002 are set aside. Respondent Judge is directed to issue the writ of possession prayed for and to continue hearing the case. No costs.
4 Original Complaint was not appended.
19 G.R. No. 135042, 23 September 1999, 315 SCRA 150.
25 G.R. NOS. 139927-139936, 22 November 2000, 345 SCRA 562.
26 1997 Rules of Civil Procedure.
27 G.R. NOS. 125218 and 128077, 23 January 1998, 248 SCRA 716.
28 Rules of Civil Procedure.
30 Echaus v. Court of Appeals, G.R. No. 57343, 23 July 1990, 187 SCRA 672, 674.
31 Bardillon v. Barangay Masili of Calamba, Laguna, G.R. No. 146886, 30 April 2003, 402 SCRA 440; citing Biglang-awa v. Bacalla, supra.
32 City of Manila v. Serrano, G.R. No. 142304, 20 June 2001, 359 SCRA 231.
33 As petitioner is a local government unit, the basis for the amount of the deposit before it can take possession of the property is Section 19 of Rep. Act No. 7160 and not Section 2 of Rule 67 of the 1997 Rules of Civil Procedure (See III Oscar Herrera, Remedial Law, p. 317 [1999 Ed.]).
34 Sections 9 and 10, Urban Development and Housing Act of 1992 (Republic Act No. 7279).
Where on-site development is found more practicable and advantageous to the beneficiaries, the priorities mentioned in this section shall not apply, the local government units shall give budgetary priority to on-site development of government lands.
SEC. 10. Modes of Land Acquisition. - The modes of acquiring lands for purposes of this Act shall include, among others, community mortgage, land swapping, land assembly or consolidation, land banking, donation to the Government, joint venture agreement, negotiated purchase, and expropriation: Provided, however, That expropriation shall be resorted to only when other modes of acquisition have been exhausted: Provided, further, That where expropriation is resorted to, parcels of land owned by small property owners shall be exempted for purposes of this Act: Provided, finally, That abandoned property, as herein defined, shall be reverted and escheated to the State in a proceeding analogous to the procedure laid down in Rule 91 of the Rules of Court.
36 Supra, note 32 at 239-240.
37 Huerta Alba Resort, Inc. v. Court of Appeals, G.R. No. 128567, 01 September 2000, 339 SCRA 534.
38 Sec. 19. Eminent Domain. - A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property.
39 SEC. 2. Entry of plaintiff upon depositing value with authorized government depositary. - Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized government depositary.
(a) Upon the filing of the complaint, and after due notice to the defendant, the implementing agency shall immediately pay the owner of the property the amount equivalent to the sum of (1) one hundred percent (100%) of the value of the property based on the current relevant zonal valuation of the Bureau of Internal Revenue (BIR); and (2) the value of the improvements and/or structures as determined under Section 7 hereof; . .

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ACOEL blog readers sorry to see the U.S. retreat from international leadership on the environment may be encouraged to learn that, on the other side of the world, the government of China is determined to copy some signature U.S. strategies to accelerate pollution control in their country. Specifically, the National People’s Congress enacted comprehensive revisions to its Environmental Protection Law in 2015, including provisions to increase public reporting of pollution releases to accompany many existing regulatory laws. The revisions, along with other recent legislation, also empowered public interest plaintiffs from non-governmental organizations (NGOs) registered with the government, as well as prosecutors to engage in aggressive public interest litigation, to enforce anti-pollution and clean up requirements.
Many countries have strong environmental laws, but most struggle to build and maintain effective programs to implement and enforce them. For many years, China has stressed the overriding importance of economic and employment growth. Provincial governments with major responsibility for enforcement have been measured on economic indicators and not by success in abating pollution. But the growing level of public protest over worsening pollution and waste disposal practices has compelled the national government to add environmental performance to the priorities of provincial and local governments and to experiment with new legal tools to improve it.
The Environmental Law Institute is playing an important role with a Chinese partner, the China Environmental Protection Foundation (CEPF), in providing training to environmental lawyers and others from NGOs, as well as prosecutors and judges, to help educate them on the new Chinese laws and to share the U.S. experience with public interest litigation and statutory citizen suit provisions in environmental cases. The impact of NGO and other citizen plaintiffs on implementing U.S. environmental law has been immense. During the 1970s and 1980s, suits against companies where government had not acted against permit violations and suits against government for failure to meet statutory deadlines for other requirements channeled strong public pressure and achieved significant results. The most notable recent example is the petition by environmental NGOs, renewable energy firms, and states to require the U.S. EPA to make a finding that motor vehicle emissions of greenhouse gases could be “reasonably anticipated to endanger public health and welfare” under Title II of the Clean Air Act. This lawsuit produced the Supreme Court decision in Massachusetts v. EPA, Massachusetts v. EPA, 549 U.S. 497 (2007), requiring EPA to make a finding whether or not an endangerment was presented. The evidence, most people would agree, supported only one answer. The endangerment finding was made, upheld by the D.C. Circuit, Coalition for Responsible Regulation, Inc. v. EPA, 684 F. 3d 102 (D.C. Cir. 2012), and left standing by the Supreme Court, which declined to review the finding.
The five workshops on public interest lawsuits organized by Tianjin University Law School, CEPF, and ELI have each assembled around 50 NGO staff, prosecutors, judges and other lawyers for three days of teaching on Chinese law by Chinese experts and officials and one day by ELI lawyers, including volunteers like me, and ELI’s Chinese- and U.S.-trained lawyer, Zhuoshi Liu, who also coordinates the planning. Language challenges notwithstanding, I can attest that the Chinese participants show keen interest in the presentations and ask many thoughtful questions of the speakers. It is too soon to know whether this new initiative to take more problems to court will succeed. Certainly, the Chinese plaintiffs do not yet have the body of public reports disclosing violations that made U.S. cases easier to develop, and they and China’s well-educated judges need greater access to scientific and technical support to find violations and order appropriate relief. The NGOs could also use the help of private law firm lawyers in China willing to undertake cases pro bono as some do in the U.S. In any case, it is exciting and encouraging to be able to work with dedicated Chinese lawyers and other professionals in the early stages of a serious drive in China to rank environmental protection much higher on the nation’s agenda and to gain clearer skies and cleaner land and water for its people.
Exelon owns and operates the Conowingo Dam across the Susquehanna River in Maryland just below the Pennsylvania border, including a 573 megawatt hydroelectric power plant. It is seeking a renewal of its operating license from FERC under the Federal Power Act for 50 years. Section 401 of the Clean Water Act requires that any applicant for a federal license that may result in a discharge submit a certification by the state where the discharge will occur that the discharge “will comply with the applicable provisions” of the CWA, including water quality standards. The certification may include conditions and requirements, including monitoring and reporting, deemed necessary to ensure compliance. The certification becomes part of the federal license, and the licensing agency may not change it.
The facts in this case are unusual, and the outcome will likely be precedential. For decades, sediment has flowed down the 450 miles of the Susquehanna River from New York and Pennsylvania and accumulated in the reservoir behind the dam, trapping nitrogen, phosphorus, metals, PCBs and other pollutants along with the sediment, Now the trapping capacity has been reached. Several times in recent decades severe storms have scoured out tons of this sediment and carried it over the dam and into the Chesapeake Bay 10 miles downstream, causing not just violation of water quality standards, but severe damage to oysters, bay grasses and benthic organisms. In addition, the dam has blocked historic fish passage. Measures such as fish ladders and transportation have produced only modest relief. Since 2010 the entire Chesapeake Bay and its tributary system has been subject to a multi-state total maximum daily load (TMDL) for nitrogen, phosphorus and sediment, but at the time that was set, it was not anticipated that the Conowingo trapping capacity would be exhausted this soon.
On April 27, 2018, the Maryland Department of the Environment issued a CWA certification in which it determined that numerous conditions must be complied with by Exelon in order to reasonably ensure compliance with water quality standards. It requires, among other things, measures to ensure compliance with standards for dissolved oxygen (DO), chlorophyll-A (an indicator of algae), turbidity, temperature, pH and bacteriological criteria in the reservoir and downstream waters including the Bay, plus compliance with plans to protect various fish species, waterfowl and habitat. It also requires shoreline protection, removal of trash from the reservoir and a variety of monitoring programs.
Notably, to satisfy the DO standards, which are adversely affected by nutrients and are critical to aquatic life, MDE requires that starting in 2025 Exelon must annually reduce the amount of nitrogen in its discharges by 6 million pounds, and phosphorus by 260,000 pounds. Exelon can also satisfy this requirement by installing best management practices elsewhere upstream or paying $17 per pound of nitrogen and $270 per pound of phosphorus for any amounts not removed.
Exelon promptly filed a request for reconsideration and administrative appeal with MDE. It also filed a complaint in Maryland state court seeking a declaration that the certification could not be considered “final action” until proceedings before MDE were concluded, including Exelon’s right to an evidentiary hearing; an injunction against any consideration of the certification by FERC, and, alternatively, for judicial review. Exelon also filed suit in the U.S District Court in Washington, D.C., claiming that MDE’s certification exceeded its CWA authority and constituted an unconstitutional taking of its property, and seeking declaratory and injunctive relief. See Exelon’s filings at here.
Among Exelon’s complaints is the fact that the certification would require it to spend vast sums to remove pollutants that did not come from its operations, but from upstream polluters. The fee equivalent of the nitrogen and phosphorus removals would amount to $172 million per year – far more than Exelon earns from the operation of Conowingo. An environmental impact statement had concluded that efforts to remove the sediment from behind the dam “would be cost-prohibitive and ineffective.” Releases from the dam, Exelon contends, are not “discharges” but “pass-through.” Exelon also argues that fish passage damage was caused decades ago and it would be unfair to make Exelon bear the full cost of restoring it.
Some environmental groups have joined the administrative appeal process. Stewards of the Lower Susquehanna and Waterkeepers Chesapeake (a group of 18 Waterkeeper organizations in the Chesapeake Bay watershed) appealed to MDE asking that protection against scouring by big storms be strengthened and that likely effects from climate change be considered, but otherwise supporting the certification. The Nature Conservancy and the Chesapeake Bay Foundation, both with longstanding interests in water quality and restoration of the fisheries and fish passage, have also been actively involved.
The stakes are high. MDE, “David” in my title, has taken some bold measures to address some enormous problems, and Exelon is fighting back hard. However it comes out, the resolution will have precedential value for other CWA 401 cases across the country, and particularly for hydroelectric projects.
HOW WILL WE COPE WHEN DAY ZERO ARRIVES IN A U.S. CITY?
While those of us here in the northeast have been wringing out soggy clothing, using umbrellas as an essential feature of our wardrobes, praying for sun, and genuinely wondering if the long hot days of summer will ever truly be with us, residents of Cape Town, South Africa are experiencing the opposite dilemma. Although recently the situation began to improve, Cape Town is suffering through one of the longest and driest spells in its history, and could be the first major city to run out of water. They could come face to face with Day Zero when no water comes from the taps.
Cape Town, named one of the world’s best places to visit by the New York Times and Britain’s Daily Telegraph, is Africa’s third main economic hub, and until the gold rush development of Johannesburg, was the largest city in South Africa. It is alive with multi-million dollar beach front homes, art museums and two of the world’s top 50 restaurants. The city could now have another distinction. Despite reducing its water use to half, announcing three new desalination plants, and residents taking 90-second showers, it will take years to normalize the extended drought its residents have suffered through. Cape Town is suffering from a three-year drought the likes of which haven’t been seen in a century, as the city has become warmer and drier.
We take water’s existence for granted. When we turn on the tap, it better be there, and it better be drinkable. Water quality and less water quantity have been front and center in deliberations about water management. Flint, Michigan brought us to the battle zone at the mouth of the Flint River, and demonstrated the ramifications head-on of high levels of lead in drinking water. Lack of proper treatment, exposure and yes, environmental justice issues were at the fore. Obviously, we care about what is in our drinking water, but we don’t give much thought to whether or how much water is readily available. Little has prepared us for the day when the amount of water flowing from our faucets will be limited to a few hours a day, if even we have access to water at all.
Not so the case in Cape Town, South Africa, a coastal paradise, responsible for 10% of Africa’s GDP, where residents have been living with the ramifications of severely limited supplies of water, and where this thriving metropolis of 4 million is poised to become the first major city in the world to completely run dry. They have little choice but to prepare and to live with the crisis. Can we afford to dismiss Cape Town as an outlier or should we be preparing for a Day Zero closer to home?
Population growth and urbanization, combined with drought, a natural climate phenomenon or a feature of climate change, depending on your point of view, has pushed Cape Town to a 2019 Day Zero countdown clock, but has not resulted in its being able to avoid Day Zero entirely — a day when the doomsday scenario occurs and the taps run dry. Earlier this year, Day Zero had been predicted to fall on May 11, 2018, the day when taps in all homes and businesses would be turned off, and when Cape Town’s 4 million residents would have had to line up for water rations. Cape Town residents are now forced to subsist on 13 gallons of water a day. Exceeding the daily water limit results in fines. Residents and tourists alike are implored to recognize the water crisis and to conserve. This means taking extreme measures on a daily basis, like taking 90-second showers, drinking a half gallon of water, utilizing only one sinkful to hand wash dishes or laundry, having water for one cooked meal, two hand washings, two teeth brushings and one toilet flush. The 13-gallon limit is less than the minimum U.N. daily recommendation for domestic needs.
Tragically, Cape Town’s looming problem might have been avoided if only there had been better planning, better crisis management and no drought. To be fair, Cape Town did undertake a program to fix old and leaky pipes, to install meters and to adjust tariffs. The city did not, however, look for new water sources. Cape Town depends on water from six dams that are rainfall dependent, and now stand at just over 25% of capacity. Depending on these dams as a limited source has been exacerbated by the city’s population growth swelling by upwards of 30% in the last decade, with most of that growth in the city’s poorer areas that actually consume less water. And therein lies one of the realities of South Africa’s sad apartheid legacy — extraordinary inequality and concentrated wealth and privilege. Folks in the more affluent area of the city can access privately maintained water tanks and pools for their water needs. Pools provide a built in bathing option and an emergency water supply.
With only about half of the residents reaching the 13 gallon a day target, most consider a shut-off inevitable. It is not a question of if, but how the city will make water accessible and prevent anarchy. In poorer parts of the city, people share communal taps and carry water buckets to their homes. With the clock ticking, Capetonians are sharing water-saving tips — don’t boil food, bake it or grill it; use paper plates; order pizza and eat it from the box; use water collected from showing to wash clothes, use grey water to flush toilets, and more.
Recent rainfall in Cape Town will help to normalize the situation, but the city has not averted the crisis. Closer to home the condition of the Rio Grande in New Mexico reflects a broader trend in the west, where greenhouse gas emissions have made wet years less wet and dry years even drier. So although conservancy districts store water in reservoirs, once that water is drained, if there are no summer rains, farmers will face an uncertain future. Despite the northeast’s rainy spring and general good fortune with water reserves, there are lessons to be learned from our neighbors to the west, and very far south on a different continent.
On vacation on Sanibel Island, FL, three hour’s drive from the central Florida town I grew up in, I’m thinking about place. When I vacationed here as a child, Sanibel was a sleepy island, with primitive bungalows for tourists, insatiable hordes of mosquitoes, mephitic drinking water, and glorious shell beaches, refreshed daily by the tides. Like most of Florida’s West Coast, Sanibel has undergone a sea change since then, transformed into a high-end resort community with luxury accommodations and expensive homes – and, yes, points of public access to the beach. There’re fewer good shells, because so many more people are hunting them.
We all live in places, vacation in places; we care about them –their people and their nature. There are over 1300 active land trusts in the United States, most of them local or regional. These organizations protect and manage over 56 million conservation acres largely though private donations. Local governments protect additional land through easement acquisition programs, open space zoning, and protections for ecologically sensitive areas. These actions go on largely under the radar of the divisive politics that infects national environmental and natural resource policy. There are still conservatives and liberals, Republicans and Democrats in these local settings, but they are joined by a common interest in their place – the qualities that make that place worth living in for everyone. This common commitment is more elusive at larger geographic scales, where red and blue segregate along lines of rural/urban, coast and heartland.
The power of place to mobilize action to protect and defend is no panacea for environmental ills. Rootedness in place can cause people to overlook the larger consequences of their actions, as in NIMBY cases. It also may fail to be an effective motivator for addressing issues at larger scales, such as climate change. But there’s evidence that politically diverse communities that are seeing the effects of global change, such as cities and counties in Southern Florida, are moving toward meaningful climate change policies – with both adaptation and mitigation components. A common threat to “home” might help lift even climate change into the realm of common commitment.
On June 11, the Supreme Court issued a one-sentence order affirming the Ninth Circuit’s 2016 judgment in United States v. State of Washington. In that case, the government sued Washington on behalf of several Indian tribes, asserting that culverts constructed by the state over decades blocked salmon runs for which the tribes held treaty fishing rights. The Court of Appeals ordered Washington to repair or replace the offending culverts. The Supreme Court split 4-4, with Justice Kennedy recusing himself, which allows the Ninth Circuit ruling to stand.
The ruling is a major victory for Indian treaty rights. The historical tradeoff for acceding to white settlement throughout the West was preservation of hunting and fishing rights dating from time immemorial. These rights were to ensure tribal sustenance and to preserve religious and cultural practices. The Court of Appeals held that inherent in fishing rights is a duty to maintain viable salmon habitat and migration corridors.
The justice for the tribes in the outcome cannot be denied. However, compliance with the ruling carries an enormous price tag, in the many billions of dollars. Further, culverts aren’t the only sources of degradation of salmon habitat. Settlement of the West entailed construction of hundreds of dams and other stream obstructions. More than a century of agriculture, mining and industrial activities have denuded riparian zones, straightened meandering streams, filled spawning gravels with sediments, and added nutrients and other pollutants to waterways. Most, if not all, streams listed by Western states as water quality impaired under Clean Water Act section 303(d), are on the list for temperature, suspended solids, dissolved oxygen and other pollutants related to development.
A great deal of litigation and regulatory activity is ongoing to address these concerns, but does the U.S. v. Washington case add the potential for accelerated court mandated corrections? How will state and local government budgets cope with aggressive timelines for compliance? Will the Administration and Congress step up to help?
The latter question raises justice issues of its own. Washington argued that the culverts it installed were in accordance with federal designs. In a statement, state Attorney General Bob Ferguson said, "It is unfortunate that Washington state taxpayers will be shouldering all the responsibility for the federal government's faulty culvert design."
Interestingly, other Washington State officials do not appear to share AG Ferguson’s sense of outrage. As reported in the New York Times, Gov. Jay Inslee and Public Lands Commissioner Hilary Franz did not support petitioning the Supreme Court for review: "For some time now I've hoped that instead of litigation we could focus together on our ongoing work to restore salmon habitat," Inslee said. Franz added, "It is time to stop fighting over who should do what." And indeed, the state has been actively working on the culverts.
The courts were not moved by Ferguson’s argument that the federal government is to blame for bad culvert design. Still, it does seem that the issue of salmon habitat restoration is not for Washington State to resolve by itself, but is a national problem resulting in significant part from national policies, and thus requires a national solution.
(1) agency records that Administrator Pruitt relied upon to support his statements in his CNBC interview,” and “(2) any EPA documents, studies, reports, or guidance material that support the conclusion that human activity is not the largest factor driving global climate change.
EPA also argued that the request was vague, asking “how is one to even know precisely what documents one relies on forming one’s beliefs.” Yikes. And what is the definition of “is,” Mr. Administrator?
I loved the Court’s response.
EPA’s apparent concern about taking a position on climate change is puzzling since EPA has already taken a public position on the causes of climate change.
The bottom line? EPA must complete a search for responsive documents by July 2, 2018, promptly disclose responsive documents, and explain any withholding by July 11, 2018.
This is not the first case under this Administration where I’ve thought how blessed I am that I’m not at DOJ and in the position of having to defend the indefensible from EPA.
Ending Secret Science or Censoring Science?
On April 30, 2018, EPA issued a Notice of Proposed Rulemaking entitled “Strengthening Transparency in Regulatory Science.” Although EPA’s stated intent is to increase transparency and public confidence in the Agency’s regulations, a number of its critics have described the proposed rule as “exquisitely opaque,” “vague,” and “lacking data transparency.” Even supporters of the proposed rule seem to recognize that it may need some work before it is issued in final form.
Critics of the proposed rulemaking argue that some scientific studies cannot be released publicly because they may include personal health information and identifiers or they may involve trade secrets. Proponents of the proposed rulemaking note that the proposed rule allows EPA to make studies available in a manner that protects privacy and confidential business information. However, it does not provide how this would be accomplished. If personal identifiers could be redacted from studies examining health effects, who would perform this data removal and who would pay for the costs associated with this removal? Proponents also note that the proposed rulemaking would give the Administrator the power to grant exemptions to these disclosure requirements if the Administrator deems it impractical or not feasible to release the research in a manner that protects privacy and other private interests, but critics are concerned that the proposed rule does not provide what factors would govern this type of discretionary exemption.
Although the concept that environmental regulations should rely on data, information and methods that are publicly available and sufficiently transparent to meet a “standard of reproducibility” is laudable, the initial reactions to the proposed rule suggest that finding a path to that end will not be easy.
Proponents of regulating releases to groundwater under the NPDES program rely principally on statements made in the preamble to a 2001 proposed rule for Concentrated Animal Feeding Operations, and on the amicus brief filed in 2016 by the Department of Justice in the County of Maui case.
This “hydrological connection” theory of Clean Water Act groundwater regulation is now pending before the Second, Fourth, and Sixth Circuits, and the period for certiorari is running in the Ninth. Clearly, the Clean Water Act cannot mean two opposite things at the same time. Which Department of Justice is right?
EPA recently issued a Federal Register notice asking the public to weigh in on the confusion created by its prior statements. Perhaps instead of debating who said what when, what is needed is a dispassionate return to the statutory language. As the Supreme Court said unanimously in 2004 in South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, the Clean Water Act “defines the phrase ‘discharge of a pollutant’ to mean ‘any addition of any pollutant to navigable waters from any point source,’” and in turn defines a “point source” as a “‘discernible, confined and discrete conveyance’ … ‘from which pollutants are or may be discharged.’” The Court explained this “definition makes plain” that “a point source need not be the original source of the pollutant,” but “it need[s] [to] … convey the pollutant to ‘navigable waters.’” If the NPDES program applies only where a point source conveys the pollutant to navigable water and EPA agrees that groundwater is not a point source, shouldn’t that be the end of the debate?

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Anderson Barkley, LLC is a boutique law firm of attorneys who are passionate about their practices and their clients. The two principals, Jeanine Anderson and Richard Barkley, have, between them, more than a half century of legal experience in a wide variety of legal fields. After practicing together in the 1990s and 2000s, where they both were partners in the law firm of Brownstein Hyatt Farber Schreck, Jeanine and Richard rejoined forces in June 2015. They now practice in four primary areas: Employment law, general civil litigation, family law, and appellate litigation.
Both Jeanine and Richard have been litigators for their entire careers. As a result, not only are they very knowledgeable about several substantive areas of law, they are – of equal importance – knowledgeable about the legal process. They will navigate the complex twists and turns of the different stages of a case; and as very experienced trial lawyers they will provide persuasive and skilled advocacy in the courtroom.
During the past two decades or longer, Richard and Jeanine have acquired substantial experience and knowledge in the field of employment law. During the time they were at Brownstein, they represented clients in dozens of employment cases and arbitrations. Since forming Anderson Barkley in July 2015, Jeanine and Richard have handled, or are handling, more than two dozen employment matters, including (most recently) a case they took to trial in January of this year, and were awarded a substantial verdict.
In addition to Jeanine’s and Richard’s experience in employment law at the trial court level, Richard also is very experienced in appellate law, particularly in the field of employment law. During his more than thirty years of practice, Richard has drafted more than 100 briefs for, or argued appeals in, the Colorado Supreme Court, the Colorado Court of Appeals, the Tenth Circuit Court of Appeals, the Ninth Circuit Court of Appeals, and the Eleventh Circuit Court of Appeals. A few representative employment-law appeals in which Richard has been involved are Wal-Mart Stores, Inc. v. Crossgrove, 276 P.3d 562 (Colo. 2012); Dish Network Corp. v. Altomari, 224 P.3d 362 (Colo. Ct. App. 2009); Palmer v. Salazar, 324 Fed. Appx. 729 (10th Cir. 2009); Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136 (10th Cir. 2009); Watson v. Pub. Serv. Co. of Colo., 207 P.3d 860 (Colo. Ct. App. 2008); Haynes v. Level 3 Communications, LLC, 167 Fed. Appx. 712 (10th Cir. 2006); Freeman v. United Airlines, 52 Fed. Appx. 95 (10th Cir. 2002); and Cadena v. Pacesetter Corp., 224 F.3d 1203 (10th Cir. 2000). Richard will handle appeals on an hourly rate, a flat rate, and in some instances, on a contingency basis.
On top of Anderson Barkley’s employment practice, Jeanine also specializes in domestic and family law. Jeanine discovered personally more than a decade ago that a pressing need existed for competent, reasonably-priced legal services is in the field of domestic relations/family law. Competent representation can mean the difference between one spouse living with adequate means, or in poverty. Competent representation can also mean the difference between maintaining a fulfilling relationship with children post-divorce, or an unsatisfactory relationship that harms parents and children alike. Competent representation can help establish divisions of property that are fair, while the lack of competent representation can result in unfair distributions of property. In other words, a competent counsel can help guide her clients through one of the most difficult times of their lives. Jeanine is committed to helping clients go through a divorce in a way that preserves for them a promising future. Jeanine has developed a sophisticated practice in that field; and her hard work and abilities were recently recognized when she was recognized by the National Academy of Family Law Attorneys as one of the Top 10 Family Lawyer in Colorado. While Jeanine has clients with property worth millions of dollars, she also represents clients who are not wealthy, but who need the help of a highly qualified and experienced attorney.
The legal profession has provided Richard and Jeanine with good livelihoods. But they have never forgotten that one of the purposes of the law, indeed, perhaps the most important purpose, is to help people who do not have their advantages.

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SPYHUNTER IS AN ADAPTIVE SPYWARE DETECTION AND REMOVAL TOOL THAT PROVIDES PROTECTION AGAINST MOST SPYWARE THREATS, MALWARE, TROJANS, ROOTKITS AND OTHER MALICIOUS SOFTWARE.
THIS APPLICATION INSTALLS WITH LIMITED FUNCTIONALITY. THE APPLICATION'S SCAN AND DIAGNOSE MODE IS AVAILABLE BY DEFAULT (WITHOUT PURCHASE). PURCHASE IS REQUIRED TO ACTIVATE FULL FUNCTIONALITY, ENABLING REMEDIATION OR REMOVAL OF SPYWARE, MALWARE AND OTHER THREATS.
A SHORTCUT WILL BE INSTALLED TO THE USER'S DESKTOP, AND THE APPLICATION WILL OPEN AUTOMATICALLY ON STARTUP. THIS APPLICATION BEHAVIOR CAN BE EASILY DISABLED WITHIN SPYHUNTER'S SETTINGS AFTER INSTALLATION, IF DESIRED.
REGHUNTER, BY ENIGMA SOFTWARE GROUP, IS A REAL-TIME REGISTRY SCANNER AND REPAIR APPLICATION DESIGNED TO ASSIST THE AVERAGE COMPUTER USER IN DISCOVERING AND REPAIRING REGISTRY PROBLEMS. REGHUNTER IS DESIGNED NOT ONLY TO DETECT EXISTING REGISTRY ERRORS BUT TO AVOID FUTURE ISSUES THAT MAY OCCUR DUE TO REGISTRY STRUCTURE PROBLEMS.
SPYHUNTER GIVES ITS USERS THE OPTION TO INSTALL REGHUNTER. REGHUNTER IS NOT REQUIRED TO RUN SPYHUNTER AND IS ONLY INSTALLED WITH SPYHUNTER IF THE USER DIRECTLY OPTS TO DO SO.
REGHUNTER IS A SEPARATE APPLICATION THAT WILL INSERT A SHORTCUT ON THE DESKTOP AND WILL LAUNCH AUTOMATICALLY ON STARTUP. THIS APPLICATION BEHAVIOR CAN BE EASILY DISABLED WITHIN REGHUNTER'S SETTINGS AFTER INSTALLATION, IF DESIRED.
IF A USER OPTS TO INSTALL REGHUNTER, REGHUNTER MAY TRANSMIT ADDITIONAL DIAGNOSTIC INFORMATION TO OUR TECHNICAL TEAM FOR DIAGNOSTIC PURPOSES. THE CONTENT OF THIS INFORMATION IS SPECIFIED IN DETAIL IN THE REGHUNTER EULA (www.enigmasoftware.com/reghunter-eula/). NOTE THAT REGHUNTER ALLOWS YOU TO OPT-OUT OF TRANSMITTING DIAGNOSTIC REPORTS BY VISITING THE "GENERAL" TAB UNDER THE "SETTINGS" TAB AND CHANGING THE OPTION FOR "TRANSMIT DIAGNOSTIC INFORMATION."
WE RESERVE THE RIGHT TO MODIFY THIS EULA AS NEEDED IN OUR SOLE DISCRETION. THE EULA IN EFFECT AT THE TIME YOU DOWNLOADED THE SOFTWARE WILL GOVERN YOUR USE OF IT, UNLESS WE MODIFY THE EULA. WE WILL SEND NOTICE OF CHANGES TO THIS EULA IN THE MANNER DESCRIBED BELOW. YOUR CONTINUED USE OF THE SOFTWARE AFTER WE ISSUE NOTICE OF A CHANGE TO THE EULA WILL CONSTITUTE YOUR ACCEPTANCE OF THE CHANGES AND THE REVISED EULA. IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS OF THIS AGREEMENT, DO NOT USE THIS SOFTWARE.
We may make changes to this EULA from time to time. When we decide to do so, we will post those changes in the EULA accessible via our website (www.enigmasoftware.com/eula) and in the EULA file packaged with the SpyHunter software download. Our software also contains an in-app update/notification mechanism that displays a dialog box when the software launches prior to an update or modification, and the dialog box lists all changes since the prior version of the software, with material changes to the functionality of the software, this EULA, or our privacy practices highlighted in bold red type. You must agree to the revised EULA in order to proceed with the software update. If you do not wish to agree with the revised EULA and proceed with the software update, you may continue to use the existing version of the software or uninstall the software.
If you object to any change we make to this EULA, you may terminate this agreement and cease use of the software. Please note, though, that your use of the software after notice of changes to this EULA will constitute your acceptance of the changes to the EULA.
("ESG") means Enigma Software Group USA LLC, a Florida limited liability company, 2803 Gulf to Bay Blvd., Suite #446, Clearwater, FL 33759 USA, a developer of computer security software and Internet-based systems. ESG also operates in New York, NY.
("Reg.Net") means The Registration Network, or Reg.Net is a wholly owned subsidiary of Digital River, Inc., a Minnesota publicly traded company, NASDAQ symbol DRIV, 9625 West 76th Street Eden Prairie, MN 55344 USA, a leading reseller and enabler in the software and online subscription industry.
("Software") means all of the contents of the files or other media with which this Agreement is provided, including but not limited to (a) ESG or third party computer information, Software, or Database; (b) digital images, stock photographs, clip art, sounds or other artistic works ("Stock Files"); (c) related explanatory written materials or files ("Documentation"); and(d) fonts; and (e) upgrades, modified versions, Updates, additions, copies of the Software, and Database Updates, if any, licensed to you by ESG (collectively, "Updates").
("Use") or ("Using") means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation.
("Database") means a structured collection of records or data that is stored, encrypted, and tabulated in a proprietary format. Our Database relies upon our Software to organize and interpret the stored data. Our data contains the structure and removal rules of malignant malware components. In addition, our Database may contain exclusions of non-malignant file components. In order to efficiently combat the threat of malware, our Database requires constant Updates.
("Permitted Number") means the number of computers that can install and use a copy of the Software, and such number is one (1) by default unless otherwise indicated under a valid license (e.g., a volume license) specifically negotiated and granted by ESG.
("Computer") means an electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
As long as you comply with the terms of this EULA (the "Agreement"), ESG grants to you a non-exclusive license to use the Software for the purposes described in the Documentation.
3.1(a). Diagnostic Report. When you start a SpyHunter scan, a diagnostic report from your system will be transmitted to ESG's Technical Team for diagnostic purposes. The information transmitted is identical to the information that is displayed when you press "Generate Support Log" within the "Spyware Helpdesk" tab of the user interface. In addition, SpyHunter sends ESG the SpyHunter version number and language, the IP address of the computer on which SpyHunter is installed, and a unique number that identifies your copy of SpyHunter. For paid users, SpyHunter also transmits their username and password. We collect this information for the purposes of diagnosing new malware threats and for tracking the location of malware infections. The information collected is encrypted when sent, it is stored on ESG's system until it can be analyzed and statistical and other information is extracted. The extracted information does not contain any IP addresses or user identifiable information. For free scans, once the relevant information is extracted, the diagnostic report is purged in due course. For paid users, the diagnostic report is retained for use in customer service. The raw diagnostic report (without IP address or user identifiable information) may be made available for public viewing and analysis on websites. Note that SpyHunter allows you to opt-out of transmitting the diagnostic report by visiting the "General" tab under the "Settings" tab and changing the option for "transmit diagnostic information." Note, the normal operation of SpyHunter depends upon transmission of diagnostic information, and in order for SpyHunter to work safely and effectively, it is strongly recommended that you leave this feature enabled.
3.2. Updates To SpyHunter. If you click the "Check for updates" button on the user interface, and whenever SpyHunter malware definitions automatically update, SpyHunter sends ESG the SpyHunter version number and language, a unique number that identifies your copy of SpyHunter, and the IP address of the computer on which SpyHunter is installed. The SpyHunter version number and unique number are used to identify the specific updates to transmit and to allow a specific copy of SpyHunter to be de-activated if it is being used for hacking or malicious purposes. No geolocation or other identifying information (such as IP address) is analyzed or stored, other than in ordinary server logs which are purged frequently. None of the information collected is shared with any third parties, nor does it contain user identifiable information.
3.4. Personal Information We Collect to Provide Services to You. If you are a paid licensee, we collect and use the information you provide us, such as the identifying information you provide when you register at /purchase_spyhunter.php, the information you provide when communicating with customer support, and the scans you conduct of your computer. We use that information to provide services to you, for certain accounting and auditing purposes, and to update the Malware Tracker application. If you are a paid licensee, your username and password are sent and received during each communication to authenticate you as a user. Payment card and other financial information are collected solely by ESG's payment processor, Reg.Net, and is used to verify and collect payment for licenses to use ESG's products. Payment and financial information are not collected by ESG and are not stored on ESG's systems. We take steps to safeguard and protect your personal information, which include but are not limited to, ensuring that information is encrypted before it is sent to or from us to you and that statistical information we develop is not tied to your username or your IP address.
3.5. Personal Information of Former Paid Licensees. ESG retains non-financial contact information, and support and scan logs, for paid customers whose licenses have expired to facilitate renewal or reinstatement. Reg.Net stores payment and billing information of customers whose software licenses have expired to ensure accurate processing of chargebacks and for auditing purposes. We take steps to safeguard and protect your personal information, which include but are not limited to, ensuring that information is encrypted before it is sent to or from us to you.
SpyHunter is updated from time to time (including but not limited to the following: (a) the SpyHunter Software, (b) the malware definitions & signatures Database, (c) updated URL lists, (d) and other miscellaneous blacklist & whitelist Databases. These Updates are collectively referred to as "CONTENT UPDATES"). You shall have the right to obtain Content Updates for the duration of your subscription, which is 6 months after your purchase of a license. ESG may create a new version of its software, or otherwise create a Content Update that is sufficiently new or different that it will require purchase of a separate subscription to access such Content Update. In such event, you nonetheless will have access to other Content Updates, which will permit you full benefit of your six-month license. This License does not otherwise permit Licensee to obtain and use Content Updates.
Third party code may be aggregated or distributed with Enigma Software Group's proprietary and copyrighted software. The copyright notices and license terms for such third party code are detailed in the license.txt file located in the SpyHunter folder and also located at /sh4/license.txt.
You may not copy the Software, except as set forth in Section 2 ("Software License"). Any copies that you are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on or in the Software. You agree not to modify, adapt or translate the Software. You also agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software except to the extent you may be expressly permitted to decompile under applicable law, it is essential to do so in order to achieve operability of the Software with another Software program, and you have first requested ESG to provide the information necessary to achieve such operability and ESG has not made such information available. ESG has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any information supplied by ESG or obtained by you, as permitted hereunder, may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any Software which is substantially similar to the expression of the Software. Requests for information should be directed to the ESG Customer Support Department. Trade names and or Trademarks ("hereafter Trademarks") shall be used in accordance with accepted trademark practice, including identification of trademarks owners' names. Trademarks can only be used to identify printed output produced by the Software and such use of any trademark does not give you any rights of ownership in that trademark. Except as expressly stated above, this Agreement does not grant you any intellectual property rights in the Software.
You may not rent, lease, sublicense or authorize all or any portion of the Software to be copied onto another user's computer except as may be expressly permitted herein. You may, however, transfer all your rights to use the Software to another person or legal entity provided that: (a) you also transfer each this Agreement, the Software and all other Software or hardware bundled or pre-installed with the Software, including all copies, Updates and prior versions, to such person or entity; (b) you retain no copies, including backups and copies stored on a computer; and (c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Software. Notwithstanding the foregoing, you may not transfer education, pre-release, or not for resale copies of the Software.
You hereby acknowledge that the Software may not be uninterrupted and cannot be guaranteed error free and further acknowledge that the existence of any such errors shall not constitute a breach of this Agreement by ESG. In particular, ESG does not guarantee that the Software will detect and/or remove all known viruses, spyware, adware, malware, Trojans, keyloggers and trackware, or locate all browser infections and tracking cookies on your computer. The Software may erroneously report a virus in a file or system not infected by that virus, and ESG disclaims any warranty that its reporting is correct. If the Software is a beta version, you acknowledge and agree that (a) the Software may contain errors and defects and may not function as intended or in accordance with its specifications; and (b) you assume all risk in using the Software and agree to take due care in the installation, execution and testing of the Software on your computer system.
9.1. The particular operating systems upon which the Software has been designed to execute will be published by ESG from time to time ("Compatible OS"). You agree that you will not execute or install the Software on any operating system other than a Compatible OS. You acknowledge and agree that the Software may not execute correctly and may interfere with other software if executed on an operating system which is not a Compatible OS.
9.2. In the event that any terms, conditions, representations or warranties are implied by statute, common law or equity ("Prescribed Terms") into this Agreement which cannot be lawfully excluded, the Prescribed Terms will apply to this Agreement, save that the liability of ESG for breach of any Prescribed Terms will be limited, to the extent permitted by law, at the option and sole discretion of ESG, to any one or more of the following: (a) the replacement of the Software to which the breach relates or the supply of equivalent Software; (b) the repair of the Software; (c) the payment of the cost of replacing the Software or of acquiring equivalent Software; or (d) the payment of the cost of having the Software repaired.
9.4. Except as provided by the Prescribed Terms (if any), which are not capable of exclusion or limitation, or as expressly set out in these terms: (a) ESG makes no warranties in relation to the Software, including warranties as to the performance or fitness for purpose of the Software (other than that ESG is entitled to grant to you the rights set out in this EULA); (b) you will not under any circumstances have any cause of action against, or right to claim or recover from, ESG for or in respect of any loss, damage or injury (including without limitation any loss of profit, indirect or consequential loss, damage or injury) arising from the supply or use of the Software or any breach of these terms; and (c) subject to paragraph (d) above, the maximum liability of ESG to you in respect of any breach of this Agreement or otherwise in respect of your use of the Software will be the amount you have paid ESG for the Software and if you have not paid ESG any amount for the Software, will be the amount of USD $0 (zero dollars).
9.6. For further warranty information, please see the jurisdiction specific information in our GOVERNING LAW section which is Section 13 of this Agreement, if any, or contact ESG's Customer Support Department.
9.7. Further instructions on the procedures and policies to make a warranty claim are explained in our REFUND POLICY which is Section 17 of this agreement. Your exclusive remedy shall be limited to either, at ESG's option, the replacement of the Software or the refund of the license fee you paid for the Software.
THE FOREGOING LIMITED WARRANTY STATES THE SOLE AND EXCLUSIVE REMEDIES FOR ESG'S OR ITS SUPPLIER'S BREACH OF WARRANTY. ESG AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, ESG AND ITS SUPPLIERS MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
IN NO EVENT WILL ESG OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF AN ESG REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. ESG'S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. Nothing contained in this Agreement limits ESG's liability to you in the event of death or personal injury resulting from ESG's gross negligence or intentional misconduct. ESG is acting on behalf of its suppliers for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose. For further information, please see the jurisdiction specific information at the end of this Agreement, if any, or contact ESG's Customer Support Department.
You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
This Agreement will be governed by and construed in accordance with the substantive laws in force in the State of New York. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. All disputes arising from or related to your use of the Software shall be resolved through binding, confidential arbitration, which is the sole and exclusive remedy for any dispute. Such arbitration shall be conducted in accordance with the American Arbitration Association's Consumer Procedure Rules. (The arbitration need not be conducted, however, by or under the auspices of the American Arbitration Association if the parties mutually agree to another arbitrator). There shall be one arbitrator selected by mutual agreement of the parties. If the parties are unable to agree to an arbitrator, either party may request that the American Arbitration appoint an arbitrator. Any dispute as to whether a specific issue is covered by this EULA or is subject to arbitration will be determined by the arbitrator. The arbitration shall be conducted in the complaining party's home jurisdiction unless the amount demanded exceeds $10,000, in which case the arbitration shall occur in Manhattan County, New York. The arbitrator will determine whether substantive motions or discovery will be permitted, and will determine the scope of such matters, provided that the arbitrator will authorize the discovery and enter the prehearing orders necessary to ensure a fair, private hearing. Arbitration awards may be confirmed by any court of competent jurisdiction.
The Software and Documentation are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. For U.S. Government End Users, ESG agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.
If you are a business or organization, you agree that upon request from ESG or ESG's authorized representative, you will within thirty (30) days fully document and certify that use of any and all ESG Software at the time of the request is in conformity with your valid licenses from ESG.
Refund requests from purchases placed directly at ESG's purchase page (via online download or on CD) must be requested through our payment processor Reg.Net. ESG has authorized Reg.net to process all the refund requests from our subscribers. You must adhere to the following guidelines and initiate the refund request within 30 days from the date of purchase in accordance with our policy below. In addition, ESG has also authorized Reg.net to also provide a refund outside the 30 day period where it is required by law to do so.
17.3. You must provide ESG and/or Reg.Net with sufficient information to be able to identify your transaction, such as the order number and/or e-mail address and/or date of transaction given to you when the download was ordered.
17.5. ESG and Reg.Net will only refund the amount you paid for the software plus any appropriate taxes charged with that order. ESG will not refund any shipping or handling charges that may have been charged to you in respect of your return of your CD to Reg.Net.
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Last week, the U.S. District Court for the District of New Hampshire ruled in a 67-page opinion that various state law tort claims brought against generic drug manufacturer Mutual Pharmaceutical Company, Inc. (“Mutual”) are not preempted by Title I of the Hatch-Waxman Amendments to the FDC Act. The decision is the latest in a string of cases in which court have ruled that state law tort claims alleging the defective labeling of generic drugs are not preempted by the FDC Act (see e.g., Stacel v. Teva Pharms., USA, 620 F. Supp. 2d 899 (N.D. Ill. 2009), Kellogg v. Wyeth, 612 F. Supp. 2d 421 (D. Vt. 2008), Schrock v. Wyeth, Inc., 601 F. Supp. 2d 1262 (W.D. Okla. 2009), and Demahy v. Wyeth, Inc., 586 F. Supp. 2d 642 (E.D. La. 2008)). The generic drug preemption question is also the subject of appeals in the 5th (Demahy v. Wyeth, Inc., No. 08-31204 (5th Cir. Dec. 16, 2008)), 6th (Morris v. Wyeth, Inc., No. 09-5509 (6th Cir. Apr. 27, 2009)), and 8th (Mensing v. Wyeth, Inc., No. 08-3850 (8th Cir. Dec. 10, 2008)) Circuit Courts, and is a topic of intense debate on Capitol Hill.
In Bartlett v. Mutual Pharma. Co., plaintiffs Karen L. and Gregory S. Bartlett claim that Mrs. Bartlett suffered serious injuries after taking the non-steroidal anti-inflammatory drug Sulindac Tablets, which is marketed by Mutual under an Abbreviated New Drug Application ("ANDA") FDA approved in 1991 (ANDA No. 72-051). (Mutual’s product is an AB-rated version of Merck’s CLINORIL (sulindac) Tablets, which FDA approved in September 1978 under NDA No. 17-911.) Specifically, the Bartletts claim that after taking Mutual’s Sulindac Tablets in December 2004, Mrs. Bartlett was diagnosed with Stevens-Johnson syndrome progressing to toxic epidermal necrolysis (a serious and potentially fatal condition), and allege that Mutual “had an ongoing duty to conduct postmarketing safety surveillance for any reports of serious adverse events associated with Sulindac including any such report in the medical literature,” and that had Mutual done so, the company would have discovered information compelling the company “to warn physicians about the dangers” of its drug product with respect to Stevens-Johnson syndrome and toxic epidermal necrolysis. The Bartletts assert several state law tort claims, including strict product liability (failure to warn and design defect), breach of implied warranty, breach of express warranty, fraud, negligence, and gross negligence.
having obtained FDA approval for their generic version of Sulindac under the ANDA procedure envisioned by Hatch-Waxman, they could not change Sulindac’s design, or the warnings included in the drug’s labeling, without running afoul of federal law (impossibility pre-emption). They further argue that, even if the FDA could approve such a change, it could come only after “substantial expense to obtain the scientific substantiation necessary to support [it],” frustrating Hatch-Waxman’s goal to “increase the availability of low-cost generic drugs” by opening the ANDA process to them (frustration-of-purpose pre-emption).
It is also incorrect, because . . . the [FDA Modernization Act] allows, “[w]ith respect to a drug for which there is in effect an approved application under section 355 . . . , a change from the manufacturing process approved pursuant to such application.” 21 U.S.C. § 356a(a)(1). Both NDAs and ANDAs, of course, are approved under section 355. . . .
Because 21 U.S.C. § 356a expressly authorizes a manufacturer’s changes to an application approved under § 355 of the Act – whether under subsection (b), as in the case of an NDA, or under subsection (j), as in the case of an ANDA – the defendants are incorrect that nothing in the Act permits a manufacturer to change its label post-approval.
The FDA’s footnote-bound position that “CBE changes are not available for generic drugs approved under an [ANDA] under 21 U.S.C. § 355(j)” is not persuasive . . . . First, the footnote did not so much as acknowledge 21 C.F.R. § 314.97 [concerning supplements to approved ANDAs]. Second, while the footnote did cite § 314.150(b)(10), that rule, as already discussed at length, provides only that the FDA may attempt to withdraw its approval of an ANDA if “the labeling for the drug product that is the subject of the [ANDA] is no longer consistent with that for the listed drug”; it says nothing at all about CBE changes, and cannot be read to prevent them in light of the other provisions of the ANDA rules. Third, while the footnote also cited certain of the agency’s comments in promulgating the ANDA regulations, those comments, as also already discussed at length, do not support excluding generic manufacturers from the CBE process. Based on these deficiencies, this court joins with those others that have refused to adopt the view set forth in the FDA’s footnote.
Notwithstanding any other provision of State or Federal law, a person who manufacturers a generic drug approved under an abbreviated new drug application shall not be liable because the label did not warn against an adverse reaction, unless the Food and Drug Administration required a change to the label to provide such warnings and the manufacturer failed to comply with such requirement, or the manufacturer failed to provide to the Food and Drug Administration health and safety information otherwise required to be provided under regulations issued by the Secretary for Health and Human Services regarding such drug.