THE PEOPLE, Plaintiff and Respondent, v. IVA KROEGER and RALPH KROEGER, Defendants and Appellants.
Timothy Abel, under appointment by the Supreme Court, and Emmet F. Hagerty for Defendants and Appellants.
Stanley Mosk, Attorney General, Albert W. Harris, Jr., Deputy Attorney General, Thomas C. Lynch, District Attorney, and Francis W. Mayer, Assistant District Attorney, for Plaintiff and Respondent.
Iva Kroeger and her husband, Ralph, were indicted for the murders of Mildred and Jay Arneson. Defendants pleaded not guilty, and Iva entered a further plea of not guilty by reason of insanity. The jury found defendants guilty of first degree murder on each of the counts, determined that Iva was sane when the offenses were committed, and fixed the punishment of both defendants at death. Their motions for a new trial and Iva's motion for modification of the penalty were denied, but the court reduced Ralph's punishment to life imprisonment. Iva's appeal comes before us automatically under subdivision (b) of [61 Cal.2d 239] section 1239 of the Penal Code, and it has been consolidated with an appeal taken by Ralph.
In the autumn of 1961 the victims were living in Santa Rosa, where Mildred Arneson, then 58 years of age, owned and operated the Rose City Motor Court. Jay Arneson, who was about 10 years older and from whom she had been divorced in 1958, suffered from Parkinson's disease in an advanced stage and resided at the motor court. Early in November Iva and Ralph Kroeger, finding themselves in financial difficulties, left their home in San Francisco and came to Santa Rosa, telling friends that they wanted to avoid creditors. They registered at the Blue Bonnet Motel under the assumed names of Eva and Ralph Long, which they continued to use during the months that followed. The Blue Bonnet Motel was located across the street from the Rose City Motor Court, and, sometime before the middle of December, Iva became acquainted with Mrs. Arneson. The Kroegers, like Mr. Arneson, were Rosicrucians.
On or about December 10, 1961, Iva talked to the owner of the Blue Bonnet about purchasing the Rose City Motor Court, stating she had received $144,000 in settlement of an accident claim. On December 14 Mrs. Arneson wrote to her mother that she was going on a trip to Brazil with a Rosicrucian woman, that they would start in a few days, drive to San Diego, and leave the car there, and that the woman, who had received an accident settlement of $100,000, would pay Mrs. Arneson's round-trip air fare to Brazil, and would lend her $10,000 and "take the Rose City Court as security." Mrs. Arneson purchased $1,550 in traveler's checks and made preparations to leave the country.
On December 15 Mrs. Arneson had a deed notarized which transferred her motor court to "Mrs. Eva Long," and on the same day Mrs. Arneson and Iva left Santa Rosa in the former's automobile. Iva told the man who helped them load the car that Mrs. Arneson was going to San Francisco to make arrangements for her trip. That evening two of Mrs. Arneson's traveler's checks totaling $120 were cashed at a San Francisco department store, and $100 was paid on an account the Kroegers had there. The next day Iva and Mrs. Arneson's automobile were back in Santa Rosa, but Mrs. Arneson did not return with her.
Immediately on her return to Santa Rosa, Iva told several persons that she had bought the Rose City Motor Court as well as Mrs. Arneson's car. The Kroegers began to operate [61 Cal.2d 240] the motor court, Iva collected the rents, and Ralph did a considerable amount of painting and decorating. On December 17, Iva ordered Mrs. Arneson's belongings removed from her bedroom, and Ralph burned them. Within a week the remaining traveler's checks Mrs. Arneson had purchased were used for various purposes, including a payment on a loan to the Kroegers. Although all the checks so used were signed with Mrs. Arneson's name, none of the signatures was hers. Iva was seen signing Mrs. Arneson's name to some of the checks, and she identified herself as Mrs. Arneson in using others. On January 3, 1962, Iva recorded the deed which Mrs. Arneson had executed in her favor. Iva, holding herself out as the owner, borrowed substantial sums of money from two banks, and a promissory note given to one of the banks was signed by Ralph and Iva under their assumed names.
Early in January, Mrs. Arneson's sister, Beatrice Brunn, who was told that the telephone at the Rose City Motor Court had been disconnected when she tried to call that number, asked the Santa Rosa Police Department to investigate. An officer gave Iva the sister's name to call, and on that day the sister received a telephone call from a "Mrs. Long." The caller said, among other things, that Mrs. Arneson had gone on a trip to South America on December 16 and had left her in charge of Mr. Arneson and the motor court, which had been sold, that she did not know who the buyer was, and that there was no need to worry because she had received a card from Mrs. Arneson mailed in Mexico.
In the latter part of January Iva told Walter Hughes, who was living at the Rose City Motor Court, that she was having some plumbing work done in her home in San Francisco and asked him to dig a hole there for her 4 feet long, 4 feet wide, and 4 feet deep. He agreed and drove to San Francisco with Iva, a woman named Penny Mills, and Mr. Arneson. When they arrived at the Kroeger home after dark, Iva asked Hughes to move some boxes of dirt out of the garage, located in the basement. The floor of the garage was made of smooth concrete except for a rough area which Miss Mills noticed near a post in the center of the garage. At the direction of Iva, Hughes dug a hole in a corner of the garage, working about two hours. He and Miss Mills then drove with Iva and Mr. Arneson to a hospital, where he and Iva helped Mr. Arneson to the hospital door. Iva took Mr. Arneson inside and returned to say that Mr. Arneson would be detained a [61 Cal.2d 241] little longer than she had anticipated and that she would wait for the doctor. She told Hughes and Miss Mills to take the car and go back to Santa Rosa. Hughes saw Iva in Santa Rosa the next day, but never saw Mr. Arneson again. Mr. Arneson's doctor testified that he did not treat him after September 1961, and records of the hospital showed that Mr. Arneson had not been a patient there after that time.
On February 12 a Red Cross worker made inquiries about Mr. Arneson at the Rose City Motor Court. Iva said, in the presence of Ralph, that about three weeks earlier at 1 a.m., Mrs. Arneson had come in a white Cadillac with a Mr. Dillon (Mrs. Arneson had previously been married to a man named Bill Dillon) and that they had taken Mr. Arneson away either to a hospital in San Francisco or to Brazil.
The following day, Mrs. Arneson's mother, who lived in Yakima, Washington, received a telephone call from a woman who identified herself as Erma Long. Among the things the woman said were that she did not know where Mrs. Arneson was, that she might be in Mexico or Brazil, and that she had come to get Mr. Arneson in a white Cadillac about 2 a.m. on January 19 with a tall, fair man named Bill Dillon. The mother said that Bill Dillon was dark, and the woman replied that Mr. Arneson identified the man as Bill Dillon and that he ought to know. The woman asked the mother if she thought some man had "got ahold of" Mrs. Arneson and "did her in." The mother said she thought the new owner of the motor court had harmed Mrs. Arneson, and the caller retorted that she was the new owner and was a respectable woman. The owner of the Blue Bonnet Motel testified that Iva had told him that she had spent $9.00 in telephoning Mrs. Arneson's mother.
Within a few weeks after the telephone call Mrs. Arneson's mother and sister respectively received a letter and a telegram purporting to be from Mrs. Arneson and bearing the signature "Mildred." Ordinarily, in writing to her family Mrs. Arneson signed her name as "Mil." The letter received by the mother was written on a typewriter Iva had borrowed from a tenant at the Rose City Motor Court. The telegram was addressed to the sister as "Beatrice Brown" rather than "Brunn." (When the police officer gave Iva the sister's name to call in January, he wrote the surname as "Brown.") The sender of the telegram used a pay telephone in the vicinity of Salinas, and Iva was in that area at the [61 Cal.2d 242] time the telegram was sent and made a call from a telephone booth.
In the last week of February, Iva and a woman named Inez Willets went to the Kroeger home in San Francisco and entered the garage, in a corner of which Miss Willets saw a square pile of dirt about a foot higher than the floor. They made another visit to San Francisco early in March, at which time Iva had Miss Willets buy some sacks of cement for her, waiting in the car while the purchase was made. Iva moved the sacks, each weighing about 90 pounds, from the car into the garage at the Kroeger home and said that "Mr. Long" would come down in a few days and help "the old man" fix the basement. About a week later Iva was with Miss Willets in Santa Rosa and asked her to wait until Ralph got back from "the City." Ralph finally came in, and Iva asked him, "Well, did you get the old man fixed up?" He answered, "Yes."
In April Iva and Ralph employed a contractor, Francis Kennison, to cut a door through a partition in their basement in San Francisco, and he noticed that the floor of the garage was made of greenish cement except for two rough, white patches, one in a corner and the other near a post. The Kroegers told him that the patches were there because those parts of the floor had been "dug out" when "the plumbing had plugged up." After he started his work the Kroegers asked him to make a new cement floor over the existing one. He suggested that it would be necessary to remove the old cement, and they insisted they did not want him to do so. When the time came to pour the new floor, Kennison picked up a sledgehammer and began to break some of the old cement. The Kroegers angrily stopped him and said they did not want the concrete broken. After the new floor had been poured, the Kroegers hired Kennison to install a wooden floor over it. Within a few days Ralph resumed working in San Francisco as a hod carrier, employment he had left in November of 1961.
In May, Iva advertised the Rose City Motor Court for sale at a price of $72,000. Later that month she had an altercation with a man in Santa Rosa during which she drew a gun, and a warrant for her arrest was issued but she could not be found during the several weeks that followed. The police, in the course of investigating the connection of the Kroegers with the disappearance of the Arnesons, went to the Kroeger home in San Francisco on August 20 and dug in the garage. They found Mr. Arneson's body buried in a corner where the [61 Cal.2d 243] old cement floor had been roughly patched, and Mrs. Arneson's body in a grave near a post in the center of the garage. Both had died of strangulation.
Before and after the bodies were found the authorities on several occasions questioned Ralph, who was living in the house in San Francisco during the summer. He denied that he was at home on the day the new cement floor was poured in the basement and said that he knew nothing about the patches in the old cement, that his wife had told him about having a hole dug in the corner for a garbage disposal, but that he had never noticed a patch near the center of the garage.
Iva, who was in San Francisco about the time the bodies were discovered, fled from the area and was arrested on September 10, 1962, in San Diego, where she was using the name "Julia Schmidt."
Both defendants testified, claiming to be innocent and denying most of the incriminating evidence introduced against them.
At the trial on the issue of Iva's sanity when the offenses were committed, two court-appointed psychiatrists who examined her testified that in their opinion she was then sane.
The evidence is clearly sufficient to support the findings that Iva was guilty and that she was sane when the offenses were committed, and there is no claim to the contrary. [1a] It is contended, however, that the court erred in not holding a hearing to determine her sanity as of the time of the trial.
The lengthy trial was marked by much disruptive and erratic conduct by Iva which started during the selection of the jury, increased in frequency as time went on, and included several hundred comments and outbursts. It is impractical to relate in this opinion all such occurrences, and we shall mention only a few as examples. Her most bizarre behavior began about a month after the trial commenced. She made statements purporting to indicate a belief that the reason she was appearing in court was to obtain custody of her "babies." Her conduct also included the singing of songs while on the witness stand and the making of repeated statements that she was the mother of God and that Ralph was her father. Uncontradicted psychiatric testimony was introduced at the guilt trial that Iva was a cunning and diabolical liar, that her conduct in court did not show insanity, and that she was [61 Cal.2d 244] feigning insanity and acting in the manner she thought a mentally disordered person would act.
 Where prior to judgment a doubt arises as to the present sanity of a defendant, that is, as to whether he is able to understand the nature and purpose of the proceedings taken against him and to conduct his own defense in a rational manner, a hearing must be had to determine that question, but whether the doubt exists is a matter resting within the discretion of the trial judge, and the lack of a hearing will not be held to constitute error on appeal unless such a doubt may be said to appear as a matter of law. (Pen. Code, § 1368; People v. Merkouris, 52 Cal.2d 672, 678-679 [344 P.2d 1].) [1b] In the light of the record before us, the trial court cannot properly be said to have abused its discretion in determining that Iva was merely feigning mental illness in the hope of influencing the jury and that there was no need for a hearing.
 Another contention is that Iva was denied independent representation by counsel of her own choice. She was arraigned on September 14, 1962, and Mr. Emmet Hagerty appeared with her and Ralph and said he represented both defendants. fn. 1 Iva did not object or demand to be represented by another attorney. On several other occasions prior to commencement of trial, including the time when the pleas of defendants were entered, Mr. Hagerty appeared and acted for both defendants without any objection by Iva, and in at least one instance Iva referred to Mr. Hagerty as "my attorney." The selection of the jury began on January 14, 1963, at which time the court told the prospective jurors, without objection by Iva, that Mr. Hagerty was representing both defendants.
On February 13, after the trial had been in progress for nearly a month, Iva testified on direct examination conducted by Mr. Hagerty without objecting to his representing her, but, when the examination was resumed the following morning, she said, "You're his lawyer, not mine. I don't have any." Later, addressing Mr. Hagerty, she said, "Just take care of Ralph. You are his lawyer and I haven't any, and I am on my own. I don't see why I'm here in the first place." During the trial on the issue of sanity at the time the offenses were committed, she frequently interrupted the proceedings to make statements such as, "I have no attorney. I wish to [61 Cal.2d 245] speak to counsel of my own, which I have never been allowed to. ... I am entitled to an attorney of my own choice, and I'm being denied that. ..." Following these last outbursts Mr. Hagerty, out of the presence of the jury, asked the court to decide whether he should withdraw as Iva's attorney or continue to represent her, and the court instructed him to continue as her attorney.
There is no sound basis for concluding that there was an infringement of Iva's right to counsel. She was ably represented by Mr. Hagerty, who was exceedingly patient in dealing with many difficult situations caused by her behavior. The court was justified in determining that her demand for a change of counsel was not made in good faith but was merely a part of her disruptive course of conduct and that there was no good reason for a change at such a late stage of the proceedings.
 A contention that Iva was compelled to testify in violation of her privilege against self-incrimination is based on statements of the court taken out of context. An examination of the relevant portions of the transcript shows that, notwithstanding Iva's disruptive conduct, both the court and [61 Cal.2d 246] Mr. Hagerty were careful to inform her of her right not to testify, and diligent in protecting that right. The statements complained of were in reality nothing more than an effort to preserve order and to have Iva decide, without undue delay in the proceedings, whether or not she would testify.
 Two members of the press were called by the prosecution as rebuttal witnesses to impeach Iva's testimony as to what she had told them after her arrest. An objection was made upon the ground that they had been present during the trial although the court had ordered the exclusion of all witnesses from the courtroom. It does not appear, however, that their role as witnesses could have been anticipated when the exclusionary order was made. Whether an exception to such an order should be made rests within the sound discretion of the trial court (cf. People v. Ketchel, 59 Cal.2d 503, 527-528 [30 Cal.Rptr. 538, 381 P.2d 394]), and there was no abuse of discretion here.
The record does not support contentions that Iva was denied a fair trial because, assertedly, the prosecutor impeded discovery, a police officer deliberately destroyed notes of conversations [61 Cal.2d 247] with Ralph, and the jury was allowed to view the basement of the Kroeger home before the judge arrived on the scene. Although it is claimed that the prosecutor, notwithstanding an order to produce, failed to come forth with all relevant material at once and forced the defense to make repeated requests for certain items of evidence, nothing in the record is cited in support of this assertion, and there is no claim that every item of evidence desired was not produced in sufficient time to permit effective presentation of the defense. The police officer who discarded the notes of conversations with Ralph testified that they were incorporated into the police report, and there is no claim that this was not the case or that the report was not made available to the defense. There is nothing in the record to indicate that the judge was not present at all times during the jury's view of the Kroeger home, and the assertion to the contrary is admittedly based only on unspecified newspaper accounts.
Other contentions made by Iva are entirely devoid of merit and need not be discussed.
The judgment against Iva must be affirmed so far as concerns the issue of guilt.  A reversal, however, is necessary with respect to the penalty in view of error committed during the trial on that issue. Instructions were given by the court and arguments made by the prosecutor of the type condemned in People v. Morse, 60 Cal.2d 631, 636 et seq. [36 Cal.Rptr. 201, 388 P.2d 33], which was decided while this case was pending on appeal. The prosecutor said that the jury would be instructed that persons sentenced to life imprisonment have the right to parole after serving a minimum of seven years but that he wanted to be completely honest and that, even though this was the law, he did not think either of the defendants would be released until they had served a number of years more than seven because of the circumstances of the case. The court told the jury that in choosing the penalty it might consider that under the law a defendant sentenced either to death or life imprisonment may be pardoned or have his sentence reduced by the Governor, a trial judge may also reduce the the penalty from death to life imprisonment, and a person sentenced to life imprisonment may become eligible for parole; that it was proper for the jury to know that eligibility for parole would occur after seven years; that whether or not a parole is granted is within the discretion of the Adult Authority. The court further stated that the law regarding parole did not mean that [61 Cal.2d 248] these defendants would be released in seven years but that their cases could not be considered by the board until seven years had elapsed and that the board would then consider the various circumstances for the first time and either fix terms or make no recommendation and thereafter review the case every year or two. As was held in People v. Hines, ante, p. 164 [37 Cal.Rptr. 622, 390 P.2d 398], any substantial error in a penalty trial is prejudicial, and such error is committed in a case where, as here, there is a substantial deviation from the standards established in Morse.
The evidence is sufficient to support the judgment against Ralph, and he makes no contention to the contrary.  He argues, however, that it is reasonable to believe he would have received a different verdict had the case been tried in the usual tranquil atmosphere of the courtroom, but that Iva's misconduct during the trial so inflamed the jury that it returned its verdict against him out of passion and bias. It is not claimed that any particular conduct of Iva was directed against Ralph or had the effect of harming him in the eyes of the jury but only that her conduct as a whole had such an effect.
Ralph is not in a position to complain since he at no time made a motion for a separate trial, for a declaration of a mistrial as to him, or for any other protective action by the court. If such a motion were not a prerequisite to raising the matter on appeal, a defendant who believes himself injured by the behavior of his codefendant would be free to keep silent and hold the point in reserve in the event the verdict as to him should prove unfavorable.
The arguments made and the instructions given at the penalty trial which were contrary to our decision in People v. Morse, supra, 60 Cal.2d 631, do not, of course, require a reversal as to Ralph, since his punishment was reduced to life imprisonment by the trial court.
The judgment against Iva Kroeger is reversed as to the penalty but is affirmed in all other respects. The judgment against Ralph Kroeger is affirmed.
Obedient to the mandate of article VI, section 4 1/2, of the California Constitution I have made "an [61 Cal.2d 249] examination of the entire cause, including the evidence," and am of the opinion that it is not reasonably probable that a result more favorable to defendant Iva Kroeger would have been reached in the absence of error committed on the penalty phase.
Accordingly, on the record in this case, and for all the reasons explained and documented in my concurring and dissenting opinion in People v. Hines (1964) ante, p. 175 [37 Cal.Rptr. 622, 390 P.2d 398], I dissent from the judgment of reversal and would affirm in its entirety each of the judgments of the trial court.
FN 1. Iva is represented on appeal by Mr. Timothy Abel, appointed by this court. Ralph is represented by Mr. Hagerty.
SCOCAL, People v. Kroeger , 61 Cal.2d 236 available at: (https://scocal.stanford.edu/opinion/people-v-kroeger-24418) (last visited Sunday April 21, 2019).


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20. […] [T]he Rules do not explicitly regulate whether proceedings may be continued with a substitute Judge following the disqualification of a Judge at a more advanced stage, namely the deliberations stage. The Appeals Chamber observes that the guarantees provided for in Rules 15bis(C) and 15bis(D) of the Rules have been consistently applied or referred to in the present situation. The Appeals Chamber considers that these Rules are designed to ensure that an accused’s right to a fair trial is sufficiently safeguarded, and that the fair trial guarantees provided for in these Rules apply mutatis mutandis to the present situation. Under Rule 15bis(D) of the Rules, when a decision is taken to continue the proceedings with a substitute Judge even though the accused has withheld his consent, such a decision “is subject to appeal directly to a full bench of the Appeals Chamber by either party”.
21. Therefore, for the purposes of the admissibility of the Appeal, and in light of the spirit of these Rules, the Appeals Chamber considers that the same protection as that provided for by Rule 15bis(D) of the Rules should apply in the present case. The Appeals Chamber further observes that the interests of neither Šešelj nor the Prosecution are prejudiced by the adjudication of this Appeal.
22. In these particular circumstances, the Appeals Chamber holds that the Impugned Decision is subject to appeal directly to a full bench of the Appeals Chamber.
The discretion of the Trial Chamber meant that the Trial Chamber had the right to establish the precise point within a margin of appreciation at which a continuation [of the proceedings] should be ordered. In that decision-making process, the Appeals Chamber can intervene only in limited circumstances, as, for example, where it is of the view that there was a failure to exercise the discretion, or that the Trial Chamber failed to take into account a material consideration or took into account an immaterial one and that the substance of its decision has in consequence been affected. It is not enough that the Appeals Chamber would have exercised the discretion differently. However, even if a trial court has not otherwise erred, the appellate “court must, if necessary, examine anew the relevant facts and circumstances to exercise a discretion by way of review if it thinks that the [Judges’] ruling may have resulted in injustice to the [appellant]”.
36. In reaching its decision, the Trial Chamber must determine whether, taking all the circumstances into account, the continuation of proceedings would serve the interests of justice. The parties “bear no burden of proving that continuing or not continuing the proceedings would better serve the interests of justice”, and accordingly taking into account whether a party has discharged this burden would be an immaterial consideration constituting an error. Other errors previously identified by the Appeals Chamber include requiring the substitute Judge to evaluate whether the record itself – including the availability of video- or audio-recording – is compatible with the requirements of a fair trial.
There is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages.
In light of the discretion inherent in a decision to continue proceedings with a substitute Judge, the Appeals Chamber has “not consider[ed] it useful to lay down a hard and fast relationship between the proportion of witnesses who have already testified and the exercise of the power to order a continuation of the trial with a substitute judge”, as “[t]he stage reached in each case need not always be the same”.
44. […] [T]he Appeals Chamber recalls that the need for a substitute Judge to certify his or her familiarity with the record is among the “safeguards ensur[ing] that fair trial rights are not compromised”. Moreover, the Appeals Chamber has previously confirmed that proceedings could continue even in the absence of video-recordings of previous testimony for the substitute Judge to review. […] With regard to the possibility of recalling witnesses, this too has been previously treated by the Appeals Chamber as being a material consideration to be taken into account.
 See Order of 3 September 2013 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Order Following Decision of the Panel to Disqualify Judge Frederik Harhoff, 3 September 2013 (“Order of 3 September 2013”)], p. 2. (stating that “the interests of fairness and transparency” warrant the application of Rules 15bis(C) and 15bis(D) of the Rules mutatis mutandis to the present case); Order of 31 October 2013 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Order Assigning a Judge Pursuant to Rule 15, 31 October 2013 (“Order of 31 October 2013”)], p. 2; Decision of 13 November 2013 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision Inviting the Parties to Make Submissions on Continuation of Proceedings, 13 November 2013 (English translation filed on 18 November 2013) (“Decision of 13 November 2013”)], p. 3. (providing Šešelj with an opportunity to withhold his consent to the continuation of proceedings); Impugned Decision [See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision on Continuation of Proceedings (rendered in French on 13 December 2013, and filed in English and BCS on 23 December 2013) “Impugned Decision”], Separate Opinion of Judge Mandiaye Niang, paras 7-10, 12-14 (emphasizing that the two remaining Judges of the Trial Chamber were unanimous that the proceedings should be continued in the interests of justice); Impugned Decision, para. 51 and p. 22 (indicating that the newly appointed Judge must first become familiar with the proceedings and declare his familiarity with the record, before the proceedings continue); Motion [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Appeal of Professor Vojislav Šešelj Against the Decision of Trial Chamber III on Continuation of Proceedings Dated 13 December 2013”, filed on 30 December 2013 (“Motion”)], para. 5 (disputing the general applicability of Rule 15bis of the Rules, but in an appeal filed directly before the Appeals Chamber as would have been provided for in Rule 15bis(D) of the Rules); Response [Response to Appeal Against Decision on Continuation of the Proceedings, 20 January 2014 (“Response”)]., paras 3, 11 (referring twice to the Impugned Decision as comporting with “the object and purpose of Rule 15bis of the Rules”).
 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis(D), 24 September 2003 (“Nyiramasuhuko et al. Decision of 24 September 2003”), para. 23. See also The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.3, Decision on Appeals Pursuant to Rule 15bis (D), 20 April 2007 (“Karemera et al. Decision of 20 April 2007”), para. 19.
 The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.2, Reasons for Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004 (“Karemera et al. Reasons filed on 22 October 2004”), paras 52, 54. Judge Shahabuddeen and Judge Schomburg each provided a declaration in relation to this matter. See Karemera et al. Reasons filed on 22 October 2004, Declaration of Judge Shahabuddeen (“Karemera et al. Declaration of 22 October 2004”); The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.2, Declaration of Judge Schomburg in Relation to Reasons for Decision of Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, dated 23 October 2004 (“Karemera et al. Declaration dated 23 October 2004”).
 Karemera et al. Reasons filed on 22 October 2004, paras 52, 54.
 Karemera et al. Reasons filed on 22 October 2004, para. 58 (“[T]he remaining Judges erred in considering that the substitute Judge should evaluate the ‘compatibility’ of fair trial requirements with the fact that he or she is to acquaint himself or herself with the testimonies from the transcript and audio-recordings. This observation is incorrect because […] the substitute Judge is to ‘familiarise’ himself or herself with ‘the record’ of the proceedings, whatever that record may contain. In any event, this is done after the [decision] to continue the trial with a substitute Judge. Therefore, any evaluation of the record by the substitute Judge could have no effect on the decision to continue the trial.”). The Appeals Chamber observes that this standard is not clearly reflected in the Nyiramasuhuko et al. case, in which it was considered that “the adequacy of the record of proceedings is a matter for the substitute judge to pass on” and that if the substitute Judge does not feel adequately acquainted with the proceedings, then he or she “will not give the required certificate”. Nyiramasuhuko et al. Decision of 24 September 2003, para. 33. Given that this issue is not material to the resolution of the present Motion, the Appeals Chamber will not address it further. See also Karemera et al. Reasons filed on 22 October 2004, paras 59, 61 (finding “the fact that the testimonies were given in a language not understood by the Bench” to be an immaterial consideration that should not have been taken into account).
 Karemera et al. Decision of 20 April 2007, para. 42; Nyiramasuhuko et al. Decision of 24 September 2003, para. 25.
 Nyiramasuhuko et al. Decision of 24 September 2003, para. 27.
 Karemera et al. Decision of 20 April 2007, para. 43. See also Nyiramasuhuko et al. Decision of 24 September 2003, para. 33.
 See Nyiramasuhuko et al. Decision of 24 September 2003, paras 29-35, 37-38.
 See Nyiramasuhuko et al. Decision of 24 September 2003, paras 34-35, 37-38.
Decision on Substitute Judge and New Material - 22.10.2004 KAREMERA et al.
58. In the view of the Appeals Chamber, the remaining Judges erred in considering that the substitute Judge should evaluate the “compatibility” of fair trial requirements with the fact that he or she is to acquaint himself or herself with the testimonies from the transcript and audio-recordings. This observation is incorrect because, under the Rules, the substitute Judge is not called upon to evaluate whether, in the circumstances, the lack of video-recordings is incompatible with the requirements of a fair trial. Rather, the substitute Judge is to “familiarise” himself or herself with “the record” of the proceedings, whatever that record may contain. In any event, this is done after the remaining Judges decide to continue the trial with a substitute Judge. Therefore, any evaluation of the record by the substitute Judge could have no effect on the decision to continue the trial. Moreover, even if the substitute Judge would decide that fair trial demands that he or she observe the protected witnesses during their testimony, the substitute Judge alone could not ensure their recall.
 See Rule 15bis(D). As Judge Hunt pointed out in his Butare dissent, Rule 15bis(D) “does not give to the substituted Judge either the power or the obligation to determine the adequacy of the record of proceedings.” Butare Appeal Decision, Dissenting Opinion of Judge David Hunt, para. 36.
 See Butare Appeal Decision, Dissenting Opinion of Judge David Hunt, para. 36.
The Appeals Chamber held that Rule 15bis(D) only relates to the remaining Judges’ decision to continue the proceedings with a substitute Judge, but not to the challenge of the subsequent exercise of discretion by the newly composed Trial Chamber to resume proceedings.
128. The Appeals Chamber agrees with Amicus Curiae that the appeal provided for under Rule 15 bis(D) of the Rules only relates to the remaining Judges’ decision to continue the proceedings with a substitute Judge, but not to the challenge of the subsequent exercise of discretion by the substitute Judge and/or the newly composed Trial Chamber to resume proceedings. The Trial Chamber, by continuing with the case with the substitute Judge, impliedly acquiesced in the certification that Judge Hanoteau was familiar with the case to the requisite degree. Amicus Curiae fails to bring forward any evidence that Judge Hanoteau had not sufficiently familiarised himself with the case to be able to properly discharge his functions. Consequently, Amicus Curiae does not demonstrate that the Trial Chamber abused its discretion in continuing the trial after receipt of the certificate of Judge Hanoteau and thus rendered the trial unfair. This sub-ground is dismissed.
25. There is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages. The Appellants have not attacked the procedure prescribed by Rule 15(A) or Rule 15(B). Under these provisions, a witness could be heard by two judges; that the procedure is, in effect, available only over a short period of time is not relevant to the principle involved. Nor have the Appellants attacked the procedure prescribed by the old Rule 15(C) by virtue of which, in a part-heard case, a substitute judge could come in for the remainder of the trial; that this was possible only with the consent of the accused (where opening statements had been made or evidence had begun to be presented) was, again, not relevant to the principle involved. And then there is the case of deposition evidence admitted under Rule 71. In all these cases, the temporarily absent judge or the substitute judge, as the case may be, is faced with the task of evaluating evidence not given before him.
34. The recomposed Trial Chamber may recall witnesses so as to enable the substitute judge to assess their demeanour on particular points. The recall decision would be made by the recomposed Trial Chamber after the proposed judge has joined it. Where video-recordings are available, an absent judge who reviews such recordings does so as a member of the bench, as in all the cases mentioned in paragraph 25 above. In like manner, in this case the substitute judge would be hearing recalled testimony as a member of the recomposed Trial Chamber. The recall power lies within the normal competence of the recomposed Trial Chamber. It was not for the two judges to authorize it to exercise that competence, although they could note that competence.
140. Turning to Nyiramasuhuko’s contention that Judge Bossa could not assess the demeanour of witnesses based on the audio-recordings, the Appeals Chamber is of the view that the importance of observing first-hand the demeanour of witnesses in court cannot be discounted on the ground that audio-recordings exist. Although the preference for live testimony to be heard by each judge does not represent an “unbending requirement”, the Appeals Chamber is not convinced that audio‑recordings alone allow a substitute judge to thoroughly assess all aspects of the witness’s demeanour in court, in particular when the judge is not proficient in the language spoken by the witness.
 The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.3, Decision on Appeals pursuant to Rule 15bis(D), 20 April 2007 (“Karemera et al. 20 April 2007 Appeal Decision”), para. 42, quoting Appeal Decision on Continuation of Trial [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis(D), 24 September 2003], para. 25. See also Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR15bis, Decision on Appeal Against Decision on Continuation of Proceedings, 6 June 2014, para. 37; Appeal Decision on Continuation of Trial, para. 33 (“But [the substitute judge] may feel that, even in the absence of video‑recordings, the record of proceedings is enough to enable him to appreciate what has happened. Failure to review video-recordings which, because they are non-existent, do not form part of the record of the proceedings, does not mean that the judge has not familiarized himself with the record of the proceedings as the record stands and therefore does not disqualify him from joining the bench. He may decide to join the bench with any questions of demeanour being left to be resolved”.).
 The Appeals Chamber notes that the Oxford Dictionary defines “demeanour” as the “manner of comporting oneself outwardly or towards others”.

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A bill filed here by California against the members of the Railroad Retirement Board and the Commissioner of Internal Revenue to enjoin them from enforcing against the State Belt Railroad -- a railroad on the San Francisco waterfront owned by the State and operated by it in interstate commerce -- the provisions of the Railroad Retirement Acts of 1935 and 1937 and of the Carriers Taxing Act of 1937, held without equity.
1. An alleged threat of the Railroad Retirement Board to require the State Belt Railroad to gather and keep records of its employees does not expose it to irreparable injury. P. 305 U. S. 259.
(a) A general allegation, without supporting detail or specification, that compliance with regulations of the Board would subject the State "to great expense" is not an adequate basis for relief on the ground of irreparable injury. P. 305 U. S. 260.
(b) Moreover, the Board is without power to enforce its regulations except by resort to legal proceedings, and therein the State would have ample opportunity to challenge the enforcement of the Acts. P. 305 U. S. 260.
(c) The contention that the possible penalty, in case of a prosecution under § 13 of the Retirement Act of 1937, is so serious that the opportunity to defend would not be an adequate remedy is examined and rejected. P. 305 U. S. 261.
2. The threat of the Commissioner of Internal Revenue to require payment of the tax does not sufficiently show danger of irreparable injury. P. 305 U. S. 261.
(a) Payment, if not due, could be recovered. P. 305 U. S. 261.
(b) Possible delay in recovery of payment -- suit could not be instituted until six months after claim for refund was made, if the Commissioner failed earlier to act upon it -- is not a special circumstance justifying resort to a suit for an injunction in order that the question of liability may be promptly determined. P. 305 U. S. 261.
(c) The contentions of the State that, to raise the money with which to pay the State's portion of the tax, it would be necessary to readjust the tariffs of the railroad, and that the deduction of the employees' portion from the payroll would result in a multiplicity of suits by employees to fix their rights under the state retirement law held not sufficiently supported in the bill. P. 305 U. S. 262.
(d) Mere inconvenience to the State in raising the money to pay the taxes does not entitle it to an injunction to test the validity or applicability of the tax. P. 305 U. S. 262.
Bill of complaint filed by California, by leave of Court, in a suit invoking the original jurisdiction of this Court, against members of the Railroad Retirement Board and the Commissioner of Internal Revenue to enjoin enforcement of provisions of the Railroad Retirement Acts of 1935 and 1937 and the Carriers Taxing Act of 1937.
employees of the State Belt Railroad, which would subject it "to great expense;" and that the Board "will enforce against the complainant, its officers, agents, and employees certain penalties if it refuses" to do so. The bill charges also that the Commissioner of Internal Revenue has threatened to enforce taxes under the Carriers Taxing Act, and will subject it to heavy fines and penalties if it fails to pay the same. The relief prayed is that the three Acts of Congress be declared inapplicable to State Belt Railroad; that the members of the Railroad Retirement Board be enjoined, among other things, from requiring the railroad to assemble and furnish the information requested, and that the Commissioner of Internal Revenue be enjoined from enforcing collection of the taxes claimed.
that there was adequate opportunity to test at law the applicability and constitutionality of the Acts of Congress, and that no danger is shown of irreparable injury if that course is pursued.
"Sec. 8. Employers shall file with the Board, in such manner and form and at such times as the Board by rules and regulations may prescribe, returns under oath of monthly compensation of employees, and, if the Board shall so require, shall furnish employees with statements of their monthly compensation as reported to the Board. . . ."
"Sec. 10(b)4. . . . The Board shall have power to require all employers and employees and any officer, board, commission, or other agency of the United States to furnish such information and records as shall be necessary for the administration of such Acts. The several district courts of the United States and the District Court of the United States for the District of Columbia shall have jurisdiction upon suit by the Board to compel obedience to any order of the Board issued pursuant to this section. . . ."
"Sec. 13. Any officer or agent of an employer . . . who shall willfully fail or refuse to make any report or furnish any information required, in accordance with the provisions of section 10(b)4 by the Board . . . shall be punished by a fine of not more than $10,000 or by imprisonment not exceeding one year."
by the Board. [Footnote 4] Regulations have been prescribed under §§ 8 and 10 which are simple, and of a type which can be complied with largely by transcriptions from payrolls. [Footnote 5] The bill alleges that compliance with the regulations would subject the State "to great expense." No supporting detail or specification is given. Such a general statement is not an adequate basis for relief on the ground of irreparable damages. [Footnote 6] The trifling expense of temporarily complying with the regulation until the applicability of the Act shall have been judicially determined, like the expense of the administrative hearings complained of in Myers v. Bethlehem Shipping Corp., 303 U. S. 41, 303 U. S. 50-51, and Petroleum Exploration, Inc. v. Public Service Comm'n, 304 U. S. 209, 304 U. S. 220-221, is not sufficient to support the claim of irreparable injury indispensable to interposition by injunction. Compare Spielman Motor Sales Co. v. Dodge, 295 U. S. 89, 295 U. S. 95-96.
that the possible penalty, in case of a prosecution under § 13, is so serious as to prevent the opportunity to defend from being an adequate remedy. Compare Ex parte Young, 209 U. S. 123, 209 U. S. 165. No prosecution has been instituted or threatened. And authority to institute such a proceeding rests not with the Railroad Retirement Board, but with the United States Attorney for the Northern District of California, who is not made defendant in this suit. [Footnote 8] Furthermore, it may be doubted whether a refusal to comply with the regulation would be deemed willful if based on an honest belief that the Act is not applicable to a railroad operated by the State. Compare United States v. Murdock, 290 U. S. 389, 290 U. S. 394-396.
of liability may be promptly determined. If the delay incident to such proceedings justified refusal to pay a tax, the federal rule that a suit in equity will not lie to restrain collection on the sole ground that the tax is illegal [Footnote 11] could have little application. For possible delay of that character is the common incident of practically every contest over the validity of a federal tax.
It is urged that, in order to raise the money with which to pay the State's portion of the tax, it would be necessary to readjust the tariffs of State Belt Railroad, and that the deduction of the employees' portion from the payroll would result in a multiplicity of suits by employees to recover the amounts and to reestablish their rights and privileges under the laws of the State. The meagre statements of the bill do not convince us that the apprehension alleged is well founded. The State Employees Retirement Act also requires the State Belt Railroad to make deductions from the salaries of its employees. The bill does not show the precise relationship between the amounts required to be deducted by the state and federal acts, or even, if the amount of the federal deduction is greater, that it is impossible for the State Belt Railroad to work out with its employees a way of adjusting its affairs during the period of uncertainty as to which act is applicable. Mere inconvenience to the taxpayer in raising the money with which to pay taxes is not uncommon, and is not a special circumstance which entitles one to resort to a suit for an injunction in order to test the validity or applicability of the tax. For aught that appears, prompt payment of the tax and claim of refund would have led to an early determination of the liability here contested.
Act of August 29, 1935, c. 812, 49 Stat. 967, as amended June 24, 1937, c. 382, Part 1, 50 Stat. 307, 45 U.S.C. §§ 228a-228r (1937 Supp.).
Act of June 29, 1937, c. 405, 50 Stat. 435, 45 U.S.C. §§ 261-273 (1937 Supp.).
This objection was the basis of two of the reasons given in support of the motion to dismiss. The other seven are: (1) The individual citizenship of defendants can form no basis for the original jurisdiction of the Court. The defendant can and will act only as officials of the United States, and as officials they are citizens of no state. (2) The Collector of Internal Revenue for the First District of California and the employees of the State Belt Railroad have not been joined as defendants. They are indispensable parties in whose absence the Court should not proceed. (3) The cause is not maintainable in this Court, since the Collector of Internal Revenue for the First District of California, a citizen of California, should be made a party, and to join him would deprive the Court of original jurisdiction. (4) The cause is not maintainable in this Court, since the employees of the State Belt Railroad, citizens of California, should be made parties, and to join any of them would deprive the Court of original jurisdiction. (5) Maintenance of the suit is prohibited by Section 3224 of the Revised Statutes. (6) The United States is the real party in interest, and hence an indispensable party. (7) The issues presented by complainant have been clearly decided against it by previous decisions of this Court, and a reexamination of those contentions would serve no useful purpose.
Compare Dalton Adding Machine Co. v. State Corporation Comm'n, 236 U. S. 699, 236 U. S. 701; Continental Baking Co. v. Woodring, 286 U. S. 352, 286 U. S. 367-368; State Corporation Comm'n v. Wichita Gas Co., 290 U. S. 561, 290 U. S. 568-569.
3 Federal Register, p. 22 et seq. (promulgated December 31, 1937), 3 Federal Register, p. 218 (promulgated January 17, 1938), in effect at the time leave to file the bill of complaint was granted, May 16, 1938, later superseded by 3 Federal Register, pp. 1478, 1493 et seq., Part 50 (promulgated May 31, 1938).
Compare Shelton v. Platt, 139 U. S. 591, 139 U. S. 596; Cruickshank v. Bidwell, 176 U. S. 73, 176 U. S. 81; Indiana Mfg. Co. v. Koehne, 188 U. S. 681, 188 U. S. 690.
Compare Cavanaugh v. Looney, 248 U. S. 453; Fenner v. Boykin, 271 U. S. 240; Hurley v. Kincaid, 285 U. S. 95.
Compare Federal Trade Commission v. Claire Furnace Co., 274 U. S. 160, 274 U. S. 173-174; Philadelphia Co. v. Stimson, 223 U. S. 605, 223 U. S. 620-622.
R.S. § 3226, as amended by § 1103(a), Revenue Act of 1932.


The Department of Art offers the Master of Science in Art degree in studio art, which includes studies in two-dimensional arts such as painting and drawing, and the three-dimensional arts including sculpture and ceramics. For graduate studies in graphic design, please refer to the M.F.A. programs in Visual Arts and Graphic Design and the Master of Science in Graphic Design in the Graduate Degree Programs list in the Graduate Catalog. There is no graduate program in interior design.
a. An online application for Graduate Admission, located on the website: https://www.mc.edu/application/.
b. One official copy of all academic transcripts.
c. A $35.00 application fee.
All admission documents must be sent to the Office of Graduate and Professional Studies (Box 4067, Clinton, MS 39058).
2. The admission requirements below will be reviewed by an appointed Department of Art Graduate Admissions Review Committee and the Graduate Art Coordinator.
a. Applicants for the 30 hour Master of Science in Art Degree must either hold an undergraduate degree in studio art with a major in either two-dimensional or three-dimensional art or earned the equivalent undergraduate preparation in art (contact the Graduate Coordinator of the Department of Art for information on equivalency of preparation).
b. The Department of Art requires applicants to have an undergraduate GPA of 2.5 or above.
c. Submit a formal statement of intent of 500-1,000 words setting forth a personal philosophy and professional objectives for the degree. The statement may be submitted in either a digital word-processing format to the Mississippi College Department of Art by electronic mail or submitted to the Department in printed form. The digital word document may be sent by email to art@mc.edu. A printed copy may be sent to Graduate Art Coordinator c/o Mississippi College Department of Art, P O Box 4020, Clinton, MS 39058.
d. Applicants must provide a current resume or vita.
e. Submit a portfolio of artwork that reflects proficiency and preparation for graduate study in studio art. It should include painting, and drawing, for a two-dimensional emphasis or sculpture and ceramics for a three-dimensional emphasis. The portfolio must consist of a maximum of 20 images. The applicant may provide either a PDF of 20 digital images of artwork or 20 printed images. The PDF portfolio may be sent by email to art@mc.edu. A printed portfolio of images may be sent to Graduate Studio Art Coordinator c/o Mississippi College Department of Art, P O Box 4020, Clinton, MS 39058. The portfolio will be reviewed by an appointed graduate committee and an admission decision will be made.
f. Note: It is the option of the graduate art faculty committee to require applicants to take specific undergraduate prerequisite courses prior to admission to the MFA in Visual Arts program.
g. Students pursuing a Master of Fine Arts graduate degree for the purpose of obtaining a standard AAA educator license are required to submit a copy of the appropriate VALID Mississippi standard A educator license along with the application.
six semester hours of graduate credit. Students who have not obtained the necessary scores on the G.R.E.
The interview may take place upon arrival at Mississippi College.
ART 6507 Research Topics in Art History: Artists Credits: 3 sem. hrs.
ART 6508 Research Topics in Art History: Periods or Styles Credits 3 sem. hrs.
ART 6101 Graduate Design Credits 3 sem. hrs.
ART 6207 Curriculum Development in Studio Art Credits 3 sem. hrs.
ART 6208 Theories of Art Education Credits 3 sem. hrs.
ART 6475 Aesthetics and Art Criticism Credits 3 sem. hrs.
Two-dimensional or three-dimensional concentration, selected in consultation with the graduate coordinator.
The Master of Arts candidate shall exhibit artwork demonstrating competence in the studio concentration. The candidate is required to pass an oral comprehensive examination at which time artwork will be presented.


In Rothschild Connected Devices v. Guardian Protection Services, Appeal No. 2016-2521, the Federal Circuit held that a district court abused its discretion in determining that the case was not exceptional, where the plaintiff was willfully ignorant of the prior art and had engaged in a pattern of vexatious litigation to extract nuisance-value settlements.
Rothschild sued ADS for patent infringement. ADS emailed Rothschild alleging that the asserted patent was ineligible under § 101 and anticipated under § 102(a)(1). ADS next filed a motion for judgment on the pleadings raising its § 101 argument. ADS also sent Rothschild a Rule 11 Safe Harbor Notice and a copy of its proposed Rule 11(b) motion for sanctions, citing purportedly anticipatory prior art. Rothschild then moved to voluntarily dismiss, within the safe-harbor period. ADS opposed the motion to dismiss, and cross-moved for attorneys’ fees, alleging Rothschild’s suit was objectively unreasonable. The District Court granted Rothschild’s motion to dismiss, but denied ADS’s cross-motion for attorneys’ fees.
The Federal Circuit reversed the denial of attorney’s fees under § 285, finding that the district court abused its discretion in not finding the case to be exceptional. In particular, the district court failed to consider Rothschild’s willful ignorance of the prior art, evidenced in part by Rothschild’s affidavits stating that neither it nor its counsel conducted an analysis of the prior art cited in the cross-motion for attorneys’ fees, yet it maintained a good faith belief that the asserted patent was valid. There was also no evidence suggesting that Rothschild or its attorneys evaluated the defendant’s products or publicly available information prior to bringing suit. The Federal Circuit also stated that the district court misjudged Rothschild’s conduct in other litigation, stating that undisputed evidence of vexatious litigation against more than 50 other defendants warranted an affirmative exceptional-case finding.
Lastly, the district court erred by conflating Rule 11’s safe harbor provision with a § 285 attorneys’ fee award. Unreasonable conduct does not need to be independently sanctionable under Rule 11 to be exceptional under § 285.
In Skky, Inc. v. Mindgeek, s.a.r.l., Appeal No. 2016-2018, the Federal Circuit held that the use of the word “means” in the claim term “wireless device means” created a presumption that the term was a means-plus-function limitation invoking § 112 ¶ 6, but that presumption was overcome because the claim term recited sufficient structure.
MindGeek filed a petition for inter partes review of Skky’s patent. The challenged claims were directed to a method of transmitting multimedia files to a “wireless device means.” The Board found that “wireless device means” did not invoke § 112 ¶ 6 because the phrase was not associated with a function. Under this construction, the Board found the challenged claims invalid as obvious in view of two references. Skky appealed.
The Federal Circuit affirmed the Board’s finding. The Federal Circuit noted that it is not bound by the examiner’s view that the claim term invoked § 112 ¶ 6. Moreover, the Federal Circuit stated that determining whether a claim term invokes § 112 ¶ 6 does not turn on the mere presence of the word “means.” Instead, the determination turns on whether the claim term is understood by the skilled artisan to designate structure. Here, the term “wireless device” is used in common parlance to designate structure. Despite use of the term “means,” the phrase lacked any associated function. Thus, the presumption that the phrase was a means-plus-function limitation was overcome. Under this construction, the Federal Circuit upheld the Board’s determination of obviousness.
In Sandoz Inc. v. Amgen Inc. et al., No. 15-1039, the Supreme Court held that: (1) the requirement that a biosimilar applicant provide application materials and manufacturing information to the reference drug manufacturer is not enforceable by injunction under federal law; and (2) the applicant’s required notice of commercial marketing may be made prior to FDA approval.
Sandoz applied to the FDA for approval of a drug that is biosimilar to Amgen’s product under the Biologics Price Competition and Innovation Act of 2009. In its notice, Sandoz refused to provide the application and manufacturing information required by 42 U.S.C. § 262(l)(2)(A). Sandoz also stated that it intended to begin marketing the product commercially immediately upon receipt of approval from the FDA (and at least 180 days from that notice). Amgen sued under § 262(l)(9)(C) and California unfair competition law, seeking an injunction requiring disclosure of the information, and requiring that the 180-day notice begin after FDA approval.
The Federal Circuit affirmed dismissal of Amgen’s state law claims and further held that federal law does not provide for this type of injunctive relief. The Federal Circuit held for Amgen that an applicant must provide notice of commercial marketing only after the FDA has approved the biosimilar.
The Supreme Court affirmed the Federal Circuit’s ruling that injunctive relief is not available under federal law, explaining that the declaratory remedies of § 262(l)(9)(C) are the exclusive federal remedies for a violation of § 262(l)(2)(A). However, the Supreme Court remanded to the Federal Circuit to consider whether an injunction could be available under state law based on a violation of § 262(l)(2)(A) being “unlawful” there.
The Supreme Court then reversed the Federal Circuit on the issue of notice timing, holding that the applicant’s notice of commercial marketing may be given prior to FDA licensure. In interpreting the language of § 262(l)(8)(A), the Court held that the term “licensed” referred back to the biosimilar which is to be commercially marketed and has no grammatical connection to the notice required of the applicant.
One-E-Way filed a complaint with the ITC against Sony and other respondents for infringement of two of its patents. Those patents related to wireless digital audio systems that provide users with private listening even when operated within a shared space. Each asserted claim contained the term “virtually free from interference.” At the International Trade Commission, respondents argued that the term did not appear in the asserted patents’ shared specification and is indefinite. The administrative law judge granted summary determination of indefiniteness, invalidating all asserted claims. The Commission affirmed and One-E-Way appealed.
The Federal Circuit reversed, agreeing with One-E-Way’s proposed construction that “virtually free from interference” here means that “eavesdropping cannot occur.” During the prosecution of a related parent application, the applicant explained that a prior art reference “does not teach, disclose, or suggest such a relationship where interference is virtually eliminated (e.g. where eavesdropping cannot occur)…” The Federal Circuit explained that the applicant’s statement was “entirely consistent with the specification” and provided a POSITA with guidance as to the term’s meaning. The ITC and respondents had argued that the statement is irrelevant because it was made in the context of claims that recited “free from interference” rather than “virtually free from interference.” The Federal Circuit disagreed, noting that the statement’s very language employs the term “virtually.” The Federal Circuit explained that the term “virtually” is a term of degree and although applicant did not provide a technical definition for that term, “[f]or the purpose of definiteness, the term is not required to have a technical measure of the amount of interference.” Because a POSITA, viewing the term in light of the specification and prosecution history, would be informed of the scope of the invention with reasonable certainty as required by the Supreme Court’s Nautilus standard, the term satisfies the definiteness requirement.


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The Ninth Circuit Federal Court has written a new chapter in the nationwide debate over whether state impound laws authorizing or requiring impound of cars driven by unlicensed drivers. Under California Vehicle Code Section 14602.6, law enforcement officials can impound and hold vehicles for 30 days when driven by unlicensed drivers. Section 14607.4 states this penalty is “warranted to protect Californians from the harm caused by unlicensed drivers.” Some governmental entities have struggled with this policy, which is occasionally unpopular, but could lead to massive liability if it is not followed. The statute is necessary because of the “community caretaking doctrine,” and because the municipality and police could be sued if there is no impound, and the car subsequently is driven and causes damage, or is damaged where it is left after the traffic stop. Civil rights groups, on the other hand, criticize these policies because of the impact on undocumented immigrants. Some California municipalities have gone so far as to choose not to enforce these statutes, which could also lead to liability if the car and driver subsequently cause damage. On February 8, 2011, a federal court upheld the statutory scheme Salazar v. City of Maywood, et al. (Ninth Circuit Case No. Case: 08-56604) on appeal from Salazar v. Schwarzenegger (District Court Case No. CV07-01854).
The Salazar plaintiffs relied heavily on Miranda in which the Ninth Circuit considered an Oregon statute allowing impoundment. Miranda v. Cornelius, 429 F.3d 858 (9th Cir. 2005). Because the Miranda vehicle was impounded from the owner’s driveway after the owner was teaching his unlicensed wife how to drive, the Court found that the impoundment was an unreasonable seizure. There was no need for impoundment under the “community caretaking doctrine” because the vehicle was in the owner’s driveway, not impeding traffic or creating a public safety hazard. The unique facts and circumstances of the Miranda case are clearly different than the Salazar impoundments, because all of the Salazar vehicles were stopped on public streets or highways and, in each case, no owner-authorized, licensed driver was immediately available to retrieve the vehicle. Even the Miranda Court held that “impoundment is proper to prevent the immediate and continued unlawful operation of the vehicle or to remove a vehicle left in a public location where it creates a hazard,” and that an officer acting within the scope of his or her community care-taking function is not required to consider “the existence of alternative less intrusive means” when the vehicle must in fact be moved to avoid the creation of a hazard or the continued unlawful operation of the vehicle. Miranda at 865, n6.
And certainly, the failure to impound vehicles could result in municipal liability. Recently, a man brought suit against Solano County for serious injuries suffered when his trailer was struck by a vehicle driven by someone with a suspended license after the Solano County Deputy Sheriff failed to impound the unlicensed driver’s vehicle during a traffic stop weeks before the accident. Simpson v. County of Solano, 1998 WL 34353105 (Respondent Solano County’s Brief) at 1, 4. Also, in Alameda County, a man won a $5,780 verdict against the City of Oakland because a police officers upon arresting the man, released his vehicle to his spouse rather than impounding the vehicle. The plaintiff claimed that his vehicle was never returned to him, and that the officers had disposed of his personal property in violation of his rights. Childress v. City of Oakland, 1998 WL 1746806.
In a case with more dire consequences, an unlicensed driver with a previous DUI conviction caused a collision with another vehicle in Montgomery, Alabama, injuring 5 passengers, including four minors, and killing a sixth passenger, also a minor. Norris v. City of Montgomery, 821 So. 2d 149 (2001). A police officer had stopped the unlicensed driver’s vehicle earlier the same day but did not impound the car pursuant to a state statute mandating impoundment. Id. at 152. The injured passengers and the estate of the deceased passenger brought a statutory negligence suit against the City seeking damages for wrongful death, personal injuries and property damage. In bringing their claim, the plaintiffs relied on the Alabama Safe Streets Act (subsequently repealed), which contained impoundment provisions similar to California Vehicle Code section 14602.6. The Alabama Supreme Court rejected the City’s discretionary-function immunity defense and reversed the trial court’s grant of the City’s motion for summary judgment as to the plaintiffs’ statutory negligence claim. Id. at 155.
While the public debate about the impound law will no doubt continue, the federal court has verified that the impound policy in California Vehicle Code Section 14602.6 makes sense, and helps avoid substantial liability.
Jim Curry is a litigation partner at Sheppard Mullin, based in the firm’s Los Angeles/Century City office. Erin Fox is a Los Angeles-based litigation attorney and non-profit consultant. The authors assisted defendants in the preparation of the briefing in the Salazar case.

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Here is the 2016 list of the 20 most downloaded land use law-related articles from the SSRN Property, Land Use & Real Estate Law eJournal.
A note on the method. First, I sorted all of the articles in the eJournal by most downloads. Second, to be included in this list, the article had to satisfy two date criteria: the article needed to have substantive revisions or publication in 2016 and it needed to be first posted to SSRN or first published no earlier than January 1, 2015. The goal of these requirements is to keep this a list of new articles, not those originally published in, say, 2008 that an author just happened to post to SSRN this year. Third, the list is limited to those articles in the eJournal that are land use law-related articles. This required something of a judgment on my part. Several articles that met the first two criteria are not included here primarily because they fit the criteria of the larger eJournal but were not really land use articles. I tried to maintain a broad definition of what "land use law" entails; however, some of the articles not included here focused on mortgages or property theory generally that I thought were beyond the scope of this blog. I am sensitive to the methodology given that, well, an article of mine turned up at the top of the list. I am open to suggestions for better methods in future years.
A final caveat... We all know that SSRN downloads do not equal importance, but they remain one easy measure to get a sense of what articles were widely read in 2016. Take it with a grain of salt, but congratulations also to all of those whose work has received significant attention.
Happy new year to all, and happy reading!
The Law of Banksy: Who Owns Street Art?
I am pleased to announce that I am joining the 9th edition of West's Land Use and Sustainable Development Law (link to 8th edition here), which will be available for use (along with an updated Teacher's Manual) in time for the the Fall, 2017 term. Published continuously since 1954, this casebook is believed to be the oldest land use law casebook in the country.
Since 2003, the casebook has been edited by John Nolon and Patricia Salkin. For this edition, Jon Rosenbloom and I are joining the authorship team. The four of us have spent considerable time updating the casebook, ensuring that it covers both the basics--everything from CUPs to takings--as well as cutting edge topics like the sharing economy, hydraulic fracturing, and trends in green development.
Stay tuned for more exciting details on the casebook in the months to come. Of course, feel free to reach out to any of us if you would like more information in the meantime.
I am the current Co-Editor-in-Chief of the University of Hawaii Law Review. The Law Review is planning a Spring Symposium on the topic of the sharing economy. More information about our symposium is available at www.hawaiilawreview.com/symposium.
One of our panels will focus on the topic of regulation in the context of the home sharing economy (e.g., AirBnB). We are hoping that you may be able to help us publicize a call for articles on topics intersecting Land Use Law and the sharing economy, on the Land Use Prof Blog.
More information about our submission guidelines is available at the "Submission" section of our website (www.hawaiilawreview.com). We will be accepting submissions through February 17, 2017, for publication in April/May.
Last week, the California Supreme Court issued a tremendously important case for the land use world (30 attorneys are listed on the papers, and you can imagine the army of associates working behind the scenes). The case, In re Transient Occupancy Tax Cases, No. S218400, 2016 WL 7187624 (Cal. Dec. 12, 2016), concerns the amount of transient occupancy tax (TOT) due when customers purchase a hotel room through online travel companies (OTCs). The issue, which may seem arcane at first, is a very big deal because TOT tax is one of those "welcome stranger" taxes not paid by city residents that became popular with the fiscalization of land use that arose after property tax revolutions forced cities to rely on more esoteric forms of funding. In San Diego, the TOT tax is 6%, more than sales taxes in many places.
In simple terms, the case is about whether TOT is owed on the "wholesale" price for which hotels contract with OTCs, or whether TOT is owed on the amount the customer pays (the "wholesale" price plus some OTC profit and fee increment--see below for the detailed description). The legal issue was one of code interpretation. The California Supreme Court held that under San Diego's existing TOT provision the tax is only due on the wholesale price. That is the bad news for cities; the good news is that the Court based its decision only on code interpretation, which could easily be re-written to specifically address and include OTCs.
This is an important case for cities across the country to read carefully. Moreoever, cities will want to contemplate re-writing their TOT ordinances to explicitly reference OTCs. This case--and its excellent briefing--provides a guide on how to do so for those local governments that need guidance.
Defendants here were a who's who of OTCs including: Hotels.com, L.P.; Priceline.com, Inc.; Travelweb LLC; Expedia, Inc.; Hotwire, Inc.; Hotels.com G.P., LLC; Travelocity.com, LP; Site59.com, LLC; Orbitz, LLC; Travelnow.com; Lowestfare.com, LLC; Trip Network, Inc. (doing business as Cheaptickets.com); and Internetwork Publishing Corp. (doing business as Lodging.com).
We first describe the nature of the transactions at issue. OTCs publish on their websites comparative information about airlines, hotels, and car rental companies, and allow consumers to book reservations with these travel and hospitality providers. OTCs may do business under any of several business models; involved here is the one known as the merchant model.2 Under the merchant model, OTCs contract with hotels to advertise and rent rooms to the general public. OTCs handle all financial transactions related to the hotel reservations and become the merchant of record as listed on the customer's credit card receipt, but do not themselves own, operate or manage hotels, maintain an inventory of rooms, or possess or obtain the right to occupy any rooms. The price the hotel charges the OTC for the room is the “wholesale” price; rate parity provisions3 in most master contracts between OTCs and hotels bar the OTC from selling a room for a rent lower than what the hotel quotes its customers directly. The OTC offers the rooms to the public at retail prices. Its charge to the customer includes a “tax recovery charge,” which represents the OTC's estimate of what the hotel will owe in transient occupancy tax based on the wholesale price of the room as charged by the hotel to the OTC. The OTC provides the customer with a receipt that lists the room rate and, on a separate line, an amount for taxes and service fees.4 Once the reservation has been made and paid for, the OTC provides customer service until the customer checks into the hotel. The hotel then bills the OTC for the wholesale price of the room plus the transient occupancy tax the hotel will have to pay based on the room's wholesale price. The OTC remits the charged amount to the hotel, which in turn remits the tax to San Diego; the OTC retains its markup and service fees.
San Diego contends the tax base for calculating the tax must be the full amount of the payment the customer is charged to obtain occupancy. In San Diego's view, the stated purpose of the tax—“It is the purpose and intent of the City Council that there shall be imposed a tax on Transients” (San Diego Mun. Code, § 35.0101, subd. (a))—reflects a legislative focus on the transaction between the OTC and the customer. The statutory definition of rent—“the total consideration charged to a Transient as shown on the guest receipt for the Occupancy of a room” (San Diego Mun. Code, § 35.0102)—in San Diego's view, shows the tax base was intended to be the total amount quoted to, charged to, and paid by the customer, not the lesser amount the hotel has agreed to accept as its share of the rental proceeds; indeed, a customer cannot obtain the privilege of occupancy by paying only the amount the hotel nets on OTC transactions nor anything less than the total amount quoted and charged to him or her. Moreover, San Diego observes, the tax is determined and collected at the same time the room is booked (id., § 35.0112, subd. (a))—the “taxable moment,” as San Diego calls it.
We agree with San Diego's argument in part. The ordinance imposes the tax on the amount “charged by the Operator” (San Diego Mun. Code, § 35.0103); it does not refer to amounts “received” or “collected” by the operator. To the extent a hotel determines the markup, such as by contractual rate parity provisions requiring the OTC to quote and charge the customer a rate not less than what the hotel is quoting on its own website, it effectively “charges” that amount, whether or not it ultimately receives or collects any portion of the markup, and that amount is therefore subject to the tax. Because, however, the ordinance imposes on “the Operator” alone the duty to remit the tax (San Diego Mun. Code, § 35.0114, subd. (a)), and subjects the operator alone to the assessment process when taxes are determined to be unpaid and owing (id., § 35.0117, subd. (a)), it does not appear to contemplate that the city treasurer may assess an intermediary such as an OTC for unpaid transient occupancy tax.
San Diego contends the entire amount paid by the customer, presumably including any portion of the markup within the exclusive control of the OTC above that set by the hotel, is subject to the tax because that amount is charged “for the privilege of Occupancy” within the meaning of the ordinance, and no lesser amount will gain that privilege for the customer. (San Diego Mun. Code, § 35.0103.) This contention, however, fails to acknowledge that the relevant ordinance identifies the taxable amount as the rent “charged by the Operator” (ibid.)—and the only such amount involved in online room rental transactions is, as we have seen, the wholesale room rate plus any portion of the markup set by the hotel pursuant to the contractual rate parity provisions or otherwise. Thus, it is the wholesale room rate plus the hotel-determined markup, exclusive of any discretionary markup set by the OTC, that is “charged by the Operator” and subject to the tax.
With all the coverage of the presidential election, you'd be forgiven for having missed some of the big local stories that emerged out of November's election.
n a hard-fought race that drew a stark and heated dividing line between passionate Detroiters in a battle to determine what was the most sensible way to craft a community benefits ordinance that would actually benefit the community, a majority of the city’s voters sent a clear message early Wednesday morning that when it comes to how best to regulate and control community development projects in their neighborhoods, Proposal B is what makes the most sense. With 98 percent of all precincts reporting, it appeared likely Proposal B was the victor by a margin of 7 percentage points, 54-36 percent.
A bit of background: The community benefits ordinance which eventually became Proposal A was first introduced to City Council two years ago and was designed to give Detroit citizens more say-so in the development process. The original ordinance required that all $15 million development projects with at least $300,000 in subsidy be reviewed by host committees within Detroit communities.
The ordinance grew from a petition by a grassroots campaign, Rise Together Detroit. The campaign believed that the ordinance would help ensure that “those within ‘old Detroit’ are not left out” as the city continues to be developed. Rashida Tlaib, former Michigan House representative, is a leader in the push of the ordinance. In an interview with Michigan Radio, Tlaib suggested that the ordinance requires more of a burden for Detroit communities to get organized and that more public conversation regarding upcoming developments will discourage corruption. She said that what has come to be known as Proposal A would ensure that issues such as public health, noise barriers, quality of life and blight aren’t overlooked by developers.
Councilman Scott Benson submitted an alternative ordinance that is more palatable to the business community but has drawn significant fire from supporters of the original version. Opponents of Benson’s version, which became Proposal B, claimed he was trying to undermine the petition, which Benson strongly denied. Benson and his supporters (only three City Council members – Council President Brenda Jones, Councilwoman Mary Sheffield and Councilmember Raquel Castaneda Lopez – supported Proposal A) have consistently claimed that Proposal A was a poorly-worded and ultimately confusing contract that would, as a consequence, be difficult to enforce and would also discourage development in the city at a critical time when Detroit is just starting to wage a comeback.
Proposal B also offers a much higher project development threshold of $75 million compared to the $15 million offered by Proposal with the rationale that a $15 million development project is not big enough to expect any developer to put up with in addition to all other existing hurdles. Benson said that $75 million was more realistic. Proposal B also allows participation from city elected officials in the negotiation process between neighborhood groups and developers, whereas Proposal A shut out participation from city officials – elected or otherwise – altogether.
The Buffalo Environmental Law Journal is seeking proposals for its spring symposium, "Climate Change: Law, Policy, and Regulation." The symposium will be held at the University at Buffalo School of Law on Saturday, March 11, 2017.
Climate change is the most pressing environmental and human rights issue of our time. Yet, actual lawmaking in this arena has been slow to occur. Without comprehensive climate change legislation, efforts in the United States have largely focused on regulatory solutions under the Clean Air Act. The Obama Administration’s Clean Power Plan is the most recent attempt at a wide-reaching regulatory framework to address climate change drivers in the US. Yet, the Clean Power Plan faces many challenges. Advocates are grasping for other legal theories, including drawing upon the Endangered Species Act, the National Environmental Policy Act, and developing new theories like Atmospheric Trust Litigation. At the same time, challengers oppose increasing federal regulation. The Buffalo Environmental Law Journal is interested in exploring the legal challenges for climate change advocacy, alternative policy approaches, and the stumbling blocks for existing and proposed legal theories.
To submit a proposal, please send an article abstract (max. 250 words), as an email or attached document, to belj1993@gmail.com by 5pm EST on December 16, 2016.
The UF Law Environmental and Land Use Law Program is participating in the UF Water Institute’s Graduate Fellows Program which provides funding (tuition & stipend) for four years for qualified graduate students seeking to obtain a doctoral degree. J.D. graduates from accredited law schools are encouraged to apply, and need not take the GRE. J.D. students selected for the cohort will work closely with Legal Skills Professor Thomas T. Ankersen and other faculty in an interdisciplinary program that has its research theme based in Costa Rica. Cohort students will participate in the UF Law Costa Rica Program in 2018, and in the UF Law Conservation Clinic. Some Spanish is an asset but not required; there will be an expectation that the student will further develop language skills during their time in the program. Details can be found in the flyer below and attached. In addition to contacting the Water Institute directly as provided below, interested J.D. students can feel free to contact Professor Ankersen at ankersen@law.ufl.edu . Note that the application deadline is January 16th, 2017.
The BLM manages more than 10% of the nation’s land and 30% of the nation’s subsurface minerals under the authority granted in the Federal Land Policy and Management Act of 1976 (FLPMA). FLPMA requires the BLM to manage the public lands for multiple-use and sustained yield. To accomplish those management goals, FLPMA requires the BLM to prepare land use plans in coordination with other Federal agencies and state, local, and tribal governments. Resource management planning is an essential tool for balancing the many competing uses and values of the public lands.
The BLM’s regulations that guide the planning process have not been updated significantly in more than thirty years. State, local and tribal governments and the public have told the BLM that the planning process is too slow – plans take an average of eight years to complete – and is not responsive or transparent to the public. By the time resource management plans are completed, they often are outdated or challenged in court, further delaying implementation. Concerns were also expressed that the plans are not responsive to the changing circumstances and demands on the public lands and do not use best practices to deal with new or ongoing issues.
The BLM developed the final planning rule through significant outreach and discussion with State and local governments, communities, stakeholders, other governmental partners, and the public. The goal of the final rule is to allow the BLM to more effectively address the complex issues facing the public lands in a timely manner and increase engagement.
Involving the Public Early. The final rule enhances opportunities for public involvement in a number of ways, including the addition of a planning assessment as the first step in the process. The BLM will first solicit input from stakeholders to help identify public viewsdefine the planning area boundary, and collect the best available information. In another new opportunity for public involvement, the BLM will develop preliminary alternatives, which will be made available for public review before the draft resource management plan is published. These new steps are in addition to, not replacements for, all of the public involvement opportunities previously available in the planning process.
Promoting Efficiency We believe that early feedback from the public will make the planning process more efficient and effective. Supplemental analyses will be needed less often, and litigation should be reduced by identifying and addressing concerns and conflicts earlier.
Public Comment Periods Appropriate to the Task. The final rule increases the minimum period that public comments will be accepted on often-complex draft resource management plans from 90 days to 100 days. In order to increase efficiency and in recognition of the fact that plan amendments are typically a lot shorter and less complex than full plans, the rule reduces the minimum comment period for draft amendments from 90 days to 60 days. In appropriate circumstances any comment period also can be extended.
Strengthening Partnerships. The final rule preserves and enhances the BLM’s partnerships with state, local, and tribal governments. FLPMA and the National Environmental Policy Act give other Federal agencies and state, local, and tribal governments a special role in the planning process and include coordination and consistency requirements. If other governmental entities choose to participate as cooperating agencies, they work side-by-side with the BLM at every stage of the process, sharing information and draft documents that are not available to the public. The rule also recognizes the unique coordination that will occur with other Federal agencies and state, local and tribal governments even if they choose not to be cooperating agencies so that the BLM keeps apprised of and considers their plans, policies, and management programs and assists in resolving any inconsistencies between their plans and BLM plans. Finally, the new opportunities for public involvement discussed above also will be available to other Federal agencies and state, local, and tribal governments at early stages of the process.
Planning With High Quality Information and at an Appropriate Scale. The final rule encourages planning at a scale that makes sense given the resources involved. It ensures adequate flexibility to obtain high quality information about those resources at all stages of the process and to identify planning area boundaries and decision makers that are most relevant to the resource issues presented. The decision maker will in most cases still be the State Director, as it is today, but the rule provides for other configurations when that makes sense. In addition, the rule supports the use of best practices developed over the years to consider the breadth of resource values, the uses that people make of those resources, environmental and ecological conditions on the ground, and the social and economic needs and concerns of local communities.
Adapting to Change. Pressures on BLM lands have increased due to growing demand for use, more competing uses, and resource issues such as invasive species and wildfire. The final rule will better enable the Bureau to respond to change by providing for the use of adaptive management. Under the final rule, resource management plans will set clear goals and objectives to guide future management and allow for the use of adaptive management techniques.
Reaffirming Essential FLPMA Policy. The final rule revises and clarifies the existing planning rule. It reinforces the policy direction in FLPMA requiring management of the public lands for multiple use and sustained yield and includes a definition of the concept of sustained yield, emphasizing this core tenet of the BLM’s approach to public land management.
Public Comment Periods Appropriate to the Task. The proposed rule would have reduced the minimum length of formal public comment periods on draft land use plans (from 90-days to 60-days) and plan amendments when an environmental impact statement (EIS) is prepared (from 90-days to 45-days).
Public comments largely supported the new, early opportunities for public involvement, but generally did not support a reduction in formal comment periods. The final rule adopts the new opportunities for public involvement and expands the current 90-day comment period for draft land use plans to 100 days. The final rule reduces the current 90-day comment period for EIS-level plan amendments to 60-days instead of 45-days as proposed.
Planning Areas and Responsibilities. The existing planning regulations identify the BLM field office as the default boundary for land use plans and assign responsibility for the preparation of resource management plans to BLM Field Managers and approval of resource management plans to BLM State Directors. Under the existing regulations as well as the final rule, the BLM Director has the authority to assign these responsibilities to a higher level or to select a different boundary.
The proposed planning rule would have removed the default planning area boundary and replaced references to State Directors with “deciding official” and Field Manager with “responsible official.” Although many public comments supported these changes, other comments expressed concern that this approach would dilute local needs or concerns and reduce the ability of State and local governments to influence BLM resource management plans. The final rule adopts the proposed terminology changes to “responsible official” and “deciding official,” but provides that, when land use plans do not cross State boundaries, the default deciding official will be the BLM State Director.
Notice Requirements. The proposed planning rule would have replaced several requirements to publish a notice in the Federal Register with a requirement to notify the public through other means, including direct email or posting to the BLM website and at local BLM offices.
Many comments requested that the BLM retain all existing Federal Register notice requirements. In response to these comments, the final rule retains most existing Federal Register notice requirements, in addition to alternative forms of notification.
Distinction between Plan Components and Implementation Strategies. The proposed rule would have distinguished between planning-level decisions (referred to as plan components) and strategies to implement the plan (referred to as implementation strategies). This proposed change was intended to provide clarity on what is considered “planning-level” management direction and requires a plan amendment to change.
Coordination with State, Tribal, and Local Governments. The BLM received many public comments regarding coordination with State, Tribal, and local governments, as provided in section 202(c)(9) of FLPMA. Many comments raised concerns that the proposed rule would diminish coordination requirements. Several changes are made to clarify coordination requirements in response to these comments, while retaining the existing framework for coordination, to ensure the BLM “keep[s] apprised of the plans, policies and management programs of other Federal agencies, State and local governments, and Indian tribes.” In addition, the final rule includes a new regulatory requirement to consult with Indian tribes on a government-to-government basis during the preparation and amendment of resource management plans.
Cooperating Agency Status. The BLM received many public comments stating that the proposed rule contained language that commenters believed would restrict which agencies could participate as “cooperating agencies.” This was not the intention, and this language was removed. The final language tracks the Council on Environmental Quality’s NEPA implementation regulations and the Department of the Interior’s NEPA implementation regulations.
I can hardly believe it, but there is a new podcast answering some of the deepest questions I had as a young college student at Brown University in the earky Nineties: who is this mayor Buddy Cianci, and how the hell does anyone ever become Buddy Cianci?
As any east coaster knows, Buddy Cianci is the legendary mayor of Providence, Rhode Island, who did just about anything good a mayor ever did for a town, and also did just about anything bad a mayor could do for a town. It's an incredible story... and now it's a podcast.
While President Trump is in Indiana this morning touting his retention of Carrier jobs, we all have reason to worry about what this deal portends for the next several years. Vice-President Elect Mike Pence, who is still the Governor of Indiana where the factory is located, reportedly secured unspecified "incentives" for the facility to retain the jobs there. The State of Indiana and Carrier refuse to specify terms of the incentives; this sets a terrible precedent.
Those that follow the blatant corporate welfare that is traditional "economic development" policy know that these deals almost always mean tax breaks, tax incentives, or even tax credits to the corporation in exchange for job retention. Those tax dollars--whether as foregone revenue or a return of revenue--mean that the citizens of Indiana are now subsidizing each job at the factory. Put another way, Trump didn't "save" Carrier jobs; rather, he has forced the citizens of Indiana to pay the difference between off-shoring each Carrier job and keeping it in Indiana. Time to come clean.
If Trump wants to engage in economic development activities for the working class, he should require, in exchange for whatever corporate welfare his future Vice President has forced Indiana residents to provide, that Carrier assist the working population with things like skill creation or improving community assets, such as schools, that could provide the workers' children a long-term competitive place in the global economy. Requiring citizens of Indiana to subsidize Carrier, without requiring the company to invest in its workers, simply impoverishes the State and leaves its workers without long-term futures when the subsidies run out.