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Property Rights at Stake This Week: Should Property Rights Depend on the Importance of the Public Interest?
The case could have implications beyond the narrow question of Army Corps-directed water discharges. Those keen for the Supreme Court to become more active in the property rights area, like Jonathan Adler, a law professor at Case Western Reserve University School of Law, certainly hope so. "We don't see many property rights cases," he said. "The language of the opinion will really matter."
Others are wary of the Supreme Court expanding the definition of what constitutes a taking. John Echeverria, a professor at Vermont Law School, is concerned that any kind of ruling in favor of Arkansas could have "enormous implications" for local governments.
Although the federal government is the defendant in the case before the court, local governments are far more likely to be on the receiving end of such claims if the Supreme Court endorses the practice, Echeverria wrote in a brief in support of the Army Corps filed by the International Municipal Lawyers Association and other local government groups.
In an interview, Echeverria said property rights advocates would be keen for a broad ruling on "temporary takings" that could prompt challenges to such activities as government inspections of property. "This is one front of a multifaceted debate over property rights," he added. "The property rights advocates see it as an opportunity to expand the doctrine."
Professor Echeverria is well known for having never seen a property rights claim that amounted to a taking. He supported the State of Florida before the U.S. Supreme Court in Stop the Beach Renourishment, Inc v. Florida Dept. of Environmental Protection, 130 S. Ct. 2592 (2010). In that case, I worked for counsel of record in representing the property owners after the Florida Supreme Court rewrote its waterfront property law.
The facts of this relatively unique case have the potential to obscure the particular threats to local governments posed by the arguments of Petitioner and its amici curiae for extending physical takings octrine to temporary occupations or invasions. In a variety of contexts, for a variety of important public purposes, government officials intentionally or inadvertently cause temporary or occasional physical invasions of private property. Exposing local taxpayers to potential financial liability under the Takings Clause for all such incidental injuries to property would impose significant new financial burdens on already straitened local governments as well as impede important government functions. In other words, in the context of temporary invasions or occupations, as much as with regulatory restrictions, “government hardly could go on” if it could be held liable under the Takings Clause every time it acted. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).
Of most immediate concern, Petitioner’s proposed takings theory would seriously undermine the ability of local governments to address a host of local water management issues. Managing the flow of storm water, sewage and other forms of water is one of the most important and difficult functions of local government.
Professor Echeverria seems to miss the point of constitutional protection of property rights entirely. As is always the case in property rights disputes, there are many competing interests at stake here. The interests of farmers and others that the Army Corps was working towards when it flooded the Commission's property are certainly important, as were the more general interests of the public in being protected from flooding. That makes this case all the more compelling: property rights must be respected, no matter how compelling the public interest is. Any other rule cheapens the freedoms we've worked so diligently for in this country.
The 2d DCA recently held that a local government's longstanding interpretation of its land development code cannot trump the code's unambiguous language. In Longboat Key v. Islandside Prop. Owners Coal., LLC, - So. 3d -, 37 Fla. L. Weekly D2058 (Fla. 2d DCA 2012), the Town approved a $400 million redevelopment plan for the Longboat Key Club. Several community organizations asked the circuit court to review the Town's decision. The circuit court found that the Town violated multiple provisions of its land development code in approving the redevelopment plan. Consequently, it struck down the Town's ordinance approving the plan.
The Town argues that the Code is ambiguous, thus requiring the circuit court to defer to the Town's reasonable interpretation. See Fla. Hosp. v. Agency for Health Care Admin., 823 So.2d 844, 848 (Fla. 1st DCA 2002) (holding that an agency's interpretation is afforded deference by the court unless the plain language of the ordinance runs contrary to the agency's interpretation). In support of this argument, the Town cites its longstanding tradition allowing similar nonresidential developments. Vanderbilt Shores Condominium Association v. Collier County, 891 So.2d 583, 584 (Fla. 2d DCA 2004), blunts that attack. Tradition cannot displace the plain meaning of a local code.
The Town's longstanding interpretation of its Code cannot tie the circuit court's hands. To allow such a result would countenance a shifting-sands approach to Code construction that would deny meaningful judicial review of local quasi-judicial decisions. The meaning of a code would remain in flux. Such an approach does not promote consistency in the application of law. As the wording of its laws binds a legislature, the Town is bound by the wording of its Code. This mounts a bulwark against the Town's unfettered exercise of power. See Bd. of Cnty. Comm'rs of Brevard Cnty. v. Snyder, 627 So.2d 469, 474 (Fla.1993) (noting that local governments and agencies must strictly adhere to town development plans and zoning codes); City of Miami v. Rosen, 151 Fla. 677, 10 So.2d 307, 309 (1942) (discussing the limited scope of authority under which municipal ordinances are valid); Ocean's Edge Dev. Corp. v. Town of Juno Beach, 430 So.2d 472, 474–75 (Fla. 4th DCA 1983) (determining that courts cannot amend local ordinances “as the town would have liked it to read” by ignoring the language of the code “in favor of after-the-fact expert testimony as to legislative intent to fill in the cracks” because property owners and residents have every right to depend on the wording of the code.) As the circuit court noted, the Town is free to amend the Code. See Carroll v. City of Miami Beach, 198 So.2d 643, 645 (Fla. 3d DCA 1967) (“[T]he City is bound by the express terms of its own ordinance.... If the City desires a different meaning for its ordinance in the future, it may amend, modify, or change the same by legislative process.”).
The 2d DCA's message is clear: local governments must follow their own rules in their land development codes. If they do not like them, they can legislatively amend the rules. They cannot, however, simply interpret clear rules unreasonably. If the rules are unclear (or become unclear when a new situation arises), then local governments can interpret their rules to address the uncertainty.
Next week, on October 3d, the U.S. Supreme Court will hear an important case for property rights: Arkansas Game & Fish Commission v. United States, No. 11-597 (cert. granted Apr. 2, 2012). Property owners should be concerned about this case because it could affect their investment decisions, especially investments related to natural resources. If the decision below stands, landowners will oftentimes be uncertain of whether they deserve compensation when the government floods their property.
In this case, the Federal Circuit Court of Appeals, which reviews takings claims against the federal government, held that the flooding of private land cannot be a taking. The only exception is where the government intends for the flooding to be a permanently recur on the property. The Federal Circuit held that courts should not look at the damages caused by the flooding or the time it lasted, but rather on the character of the policy behind the intrusion. The Federal Circuit then held that each flooding instance was merely a temporary policy not subject to review. Consequently, the Commission could not recover for the timber that the federal government killed by flooding.
The Arkansas Game and Fish Commission (“the Commission”) is an agency that works to regulate and preserve Wildlife Management Areas in Arkansas. One of the areas that the Commission manages (the “Management Area”) is a bottomland hardwood forest in the Upper Mississippi Alluvial Valley, home to diverse wildlife and hardwood timber species. The Black River runs through the Management Area. One way that the Commission regulates the Management Area is by harvesting timber in the area and then planting new trees. The Commission also controls the flooding of multiple reservoirs in the Management Area to improve the habitat for migratory waterfowl.
On March 18, 2005, the Commission filed a lawsuit in the Court of Federal Claims against the United States claiming that from 1993 through 2000, the United States effectuated a taking of the Commission’s property and failed to provide compensation. The Commission argued that during those years, the United States Army Corps of Engineers (“the Corps”), deviated from the Corps’ 1953 water control plan for the Clear Water Dam, which regulates the flow of the Black River. The Commission claims that the deviations caused increased flooding in the Management Area, which devastated the timber in the region. The Corps deviated from the 1953 water control plan to help farmers near the Management Area.
In December 2008, the Court of Federal Claims conducted a hearing concerning the Commission’s lawsuit. At the hearing, the United States argued that the flooding in the Management Area was temporary and therefore did not constitute a taking. The Court of Federal Claims rejected the United States’ argument and awarded the Commission $5.5 million for the damage resulting from the flooding and $176,428.34 to regenerate the Management Area. The United States appealed to the Court of Appeals for the Federal Circuit (“Court of Appeals”), arguing that a taking had not occurred and the Commission cross-appealed, requesting more funds for regeneration. The Court of Appeals ruled in favor of the United States and then denied the Commission’s petition for a rehearing. On April 2, 2012, the Supreme Court of the United States granted the Commission certiorari to consider whether flooding has to be permanent to constitute a taking under theTakings Clause of the Fifth Amendment. On August 16, 2012, the Commission rejected a $13 million settlement offer from the United States because the United States refused to agree that the Corps would not increase the flooding in the Management Area again.
One interesting aspect of this case is that it has not pitted environmental interests against property rights, as is often the case. Jonathan Adler has gone so far as to call it "A Takings Claim Even Environmentalists Could Love." For more in-depth reading, here are the briefs in the case. You might also check out Robert Thomas's excellent blog, where Robert has discussed the case in depth along with the amicus brief that he filed supporting the property owner.
I'll prove updates in the coming weeks once reports from oral argument at the Supreme Court come in.
Though the economy has slowed, growth pressures continue, while the local food and small farms movements gather steam. Planners are working to understand and address these issues. But agriculture is different. From agricultural enclaves under growth management law, to the Right to Farm Act, to the numerous preemptions against regulation by local government, Florida law and policymakers treat agriculture differently. After discussing the laws that planners should be aware of, the panelists with discuss the challenges, pitfalls, and opportunities that agriculture presents. Special emphasis will be placed on agriculture at the rural-urban fringe.
Robert Halman is the Collier County University Extension Director and Agricultural Agent with 26 years of extension experience providing timely, relevant programming for small farm operators and agribusiness enterprises. His focus is on sustainable agricultural enterprises, farm agrosecurity, emergency preparedness, and thriving communities. The agricultural program involves one-on-one consultations, farm visits, topical programming and facilitating community civic engagements. Robert has a B.S. in Dairy Science, a M.Ag. in Dairy Science, a M.S. in Food and Agricultural Science.
Phil Leary is a City Commissioner in Palatka. Previously, Phil served as the Planning Director for Clay and Putnam Counties and as Director of Government & Community Affairs for the Florida Farm Bureau Federation, the largest general farm membership organization in the state of Florida. While there, he represented Farm Bureau policy positions on local government land use, growth management, and environmental regulation. Phil continues his work on these issues at his government consulting firm. Phil received a B.S. in Agriculture from UF and completed post graduate work in Public Administration, Policy, and Planning at UNF.
Pat Steed is the Executive Director of the Central Florida Regional Planning Council. She has served as Planning Director for Polk County and the City of Lakeland, the MPO Coordinator, and as a Project Director for a national consulting firm. Pat has served on statewide committees, including DCA’s Rural Land Stewardship Advisory Committee. Currently, Pat is managing the Heartland 2060 visioning effort and development of a Regional Plan for Sustainable Development, which covers over half of Florida’s productive agricultural land. These efforts recognize the importance of viable agri-business for economic sustainability, including alternative crops and biofuels.
Joseph Gocsik received his Bachelor of Science in Natural Resources from The Ohio State University in 1996. In 1997 Joseph was hired as the Timber Forester for the 150,000 acre Withlacoochee State Forest where he was able to learn the “hands on” history of management practices in Florida and was introduced to the majority of habitats that currently exist. After serving the public for 2 ½ years Joseph chose to join a private forestry consulting firm in 2000 and served as a senior consulting forester and eventual division manager until January of 2008. In February of 2008 Joseph created Forest Environmental Solutions, LLC “FES” in hopes of better serving client needs, while providing them the best management services possible.
Jake Cremer is a fifth generation owner of timberlands in Florida, and he grew up working in his family’s timber operations. He served the Department of Community Affairs as a Gubernatorial Fellow and has received FAPA’s Outstanding Student Planner Award. Currently, he represents landowners in interactions with government at Bricklemyer Smolker & Bolves in Tampa. He assisted in the defense of property rights before the U.S. Supreme Court in the controversial Stop the Beach Renourishment case. Jake received a BA in Economics & Business from Rhodes College. He holds a JD and MSP in urban and regional planning with a certificate in real estate development from FSU.
Last month, I reviewed the arguments being made in the Koontz case, which the U.S. Supreme Court is considering whether to review. In that case, a landowner sued after being denied a permit when he refused to fund improvements miles away from his property on land owned by the agency issuing the permit. The Florida Supreme Court declined to recognize an exaction, holding that U.S. Supreme Court precedent on exactions only applies to real property where a permit was actually issued and the exaction imposed.
The petitioner has filed a brief in reply to last month's opposition brief from the St. Johns River Water Management District. In its opposition brief, the District had argued that the U.S. Supreme Court did not have jurisdiction to hear the case because the petitioner did not initially allege a federal takings claim, and that even if it did, there was no important question of federal law to be answered.
The Opposition, however, insists that this Court does not have jurisdiction over a state court’s determination of federal constitutional law because the complaint alleged only a violation of the state constitution. The District is wrong. For the purpose of establishing this Court’s jurisdiction, it is irrelevant when a federal claim was raised in the proceedings below so long as the state court of last resort did, in fact, rule on the federal question. It is enough that the state court “reached and decided” the federal constitutional questions.
The Florida Supreme Court adopted two per se rules of federal takings law that significantly limit the protections guaranteed by Nollan and Dolan. First, the court concluded that, as a matter of law, the nexus and proportionality tests will never apply to an excessive exaction of money or any other non-real property. And second, the court held that Nollan and Dolan will not apply where the government denies a permit application because the landowner refuses to accede to an excessive exaction. Each of these rulings raises “an important question of federal law that has not been, but should be, settled by this Court.” In addition, the Florida court’s resolution of these questions conflicts with decisions of this Court, and conflicts with decisions from other state courts of last resort and federal courts of appeals.
The U.S. Supreme Court docket shows that the Court will decide whether the hear this case during its September 24th conference.
The State of Oregon and the industry group of petitioners have filed their merits briefs in the forest roads case that the U.S. Supreme Court will hear this term. As readers of this blog will know, the U.S. Supreme Court consolidated two petitions for certiorari into one case because they were based on the same Ninth Circuit ruling. Since then, it's clear the petitioners have been hard at work, since both present much clearer questions to the Court. The briefs are posted below.
Whether the Ninth Circuit should have deferred to EPA’s long-standing position that channeled runoff from forest roads does not require a permit, and erred when it mandated that EPA regulate such runoff as industrial stormwater subject to NPDES.
(1) Congress authorized citizens dissatisfied with the Environmental Protection Agency’s rules implementing the Clean Water Act’s permitting program to seek judicial review of those rules in the courts of appeal. Congress further specified that those rules could not be challenged in any civil or criminal enforcement proceeding. Did the Ninth Circuit err when it held that a citizen may bypass the exclusive method of seeking judicial review of a permitting rule, and challenge the validity of the rule in a citizen suit to enforce the Clean Water Act against regulated parties?
(2) In the Clean Water Act, Congress required permits for stormwater discharges “associated with industrial activity,” and delegated to EPA the responsibility to determine what activities qualified as “industrial” for purposes of requiring permits for those activities. EPA determined, after public comment and rulemaking, that stormwater from forest roads and other specified forestry activities is non-industrial stormwater that does not require a permit. Did the Ninth Circuit err when it held that stormwater from forest roads is industrial stormwater under the Clean Water Act and EPA’s rules, contrary to EPA’s consistent interpretation of its own rules?
The theme behind both opening merits briefs is clear: the Ninth Circuit allowed an environmental organization to make an end run around around the Clean Water Act's when the Ninth Circuit struck down EPA's longstanding Silvicultural Rule. The Clean Water Act separates the rule development process from the citizen lawsuit enforcement process, and the Ninth Circuit conflated the two processes. Consequently, the petitioners argue that the Ninth Circuit should have barred the belated challenge, or at the least have deferred to EPA's consistent interpretation of the Act and its rules.
Will the U.S. Environmental Protection Agency’s (EPA) recently announced proposed rule regarding forest roads impact the Supreme Court’s review of the decision by the U.S. Court of Appeals for the Ninth Circuit? The simple answer is no.
EPA has proposed to clarify its regulations defining “stormwater discharges associated with industrial activity” by revising its reference to Standard Industrial Classification (SIC) 24 to exclude logging. SIC codes were developed in the 1930’s as a uniform way to collect statistics. For reasons never explained, the Department of Labor many years ago included logging in SIC 24 with various solid wood manufacturing classifications, rather than in SIC 08 with the forestry classifications. The proposed rule does not remove the language excluding logging from the industrial activity definition which EPA put in its original 1990 stormwater regulations but which the Ninth Circuit ignored when it ruled that logging is an industrial activity.
If this rule were to become final, logging, and “immediate access roads” referred to as logging roads, would not be subject to the mandatory NPDES permit requirement under Phase 1 of the stormwater program for discharges associated with industrial activity. However, this would not change two facts. First, under the Ninth Circuit’s ruling, logging roads would have been classified as part of an industrial activity for the past 22 years and would have required NPDES permits during this period. Second, these logging roads, as well as all other forest roads formerly defined as nonpoint sources by the Silvicultural Rule, remain point sources under the Ninth Circuit’s ruling. Finally, the Supreme Court must decide whether the plaintiffs in the case filed the lawsuit at a time and in a court authorized by the Clean Water Act. Thus, the essential issues to the case would remain active before the Supreme Court.
In the short therm, uncertainty remains for forest landowners. These developments indicate, however, that clarity lies ahead.

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Comment: Plaintiff was assaulted while playing basketball. The court finds that the allocation of security to the park is a governmental function. As such, the defendant Town of Hempstead has governmental immunity from being sued. Summary judgment granted to defense and case dismissed.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Marber, J.), entered December 6, 2010, which denied its motion for summary judgment dismissing the complaint.
The plaintiffs alleged that the infant plaintiff was injured by three unidentified youths who attacked him during the course of a pick-up game of basketball in a park owned and maintained by the defendant, Town of Hempstead. The infant plaintiff, by his mother, and his mother, suing derivatively, commenced this action alleging that the Town was negligent in failing to provide adequate security at the park.
The Town moved for summary judgment dismissing the complaint. It contended, among other things, that it was immune from liability because providing security in the park constituted a governmental function. The Supreme Court denied the motion.
Generally, when a municipal defendant "acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord" (Miller v. State of New York, 62 N.Y.2d 506, 511; see Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 446; see also Vestal v. County of Suffolk, 7 AD3d 613, 614). However, "[p]ublic entities remain immune from negligence claims arising out of the performance of their governmental functions, including police protection, unless the injured person establishes a special relationship with the entity, which would create a specific duty to protect that individual, and the individual relied on the performance of that duty" (Miller v. State of New York, 62 N.Y.2d at 510; see Matter of World Trade Ctr. Bombing Litig., 17 NY3d at 446; Cuffy v. City of New York, 69 N.Y.2d 255, 260; see also Pope v. State of New York, 19 AD3d 573, 573–574).
Since "the varied functions of a governmental entity can be interspersed with both governmental and proprietary elements, the determination of the primary capacity under which a governmental agency was acting turns solely on the acts or omissions claimed to have caused the injury" (Matter of World Trade Ctr. Bombing Litig ., 17 NY3d at 447; see Miller v. State of New York, 62 N.Y.2d at 513). In other words, "[i]t is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred" (Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 182).
Here, the alleged deficiencies in the security measures taken by the defendant at the park, including the allotment of personnel to patrol the park, arose from the allocation of the defendant's security resources. Such deficiencies involving policymaking as to the nature of the risks presented at the park implicated the defendant's governmental function, not its proprietary role as owner of the premises (see Bonner v. City of New York, 73 N.Y.2d 930; Cuffy v. City of New York, 69 N.Y.2d at 260; Miller v. State of New York, 62 N.Y.2d 506; Rashed v. State of New York, 232 A.D.2d 394, 394–395; Marilyn S. v. City of New York, 134 A.D.2d 583, affd 73 N.Y.2d 910). Under the circumstances of this case, by submitting evidence showing that there was no direct contact between the infant plaintiff and any Town employee prior to the alleged attack, the Town demonstrated that it owed no special duty to him, and thereby established its entitlement to judgment as a matter of law (see Pelaez v. Seide, 2 NY3d 186, 202; Cuffy v. City of New York, 69 N.Y.2d at 260–262; Dickerson v. City of New York, 258 A.D.2d 433). In opposition to the Town's motion for summary judgment dismissing the complaint, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Town's motion should have been granted.
In view of the foregoing, it is unnecessary to reach the plaintiffs' contention that the alleged attack was foreseeable (see e.g. Pope v. State of New York, 19 AD3d at 574).

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July 16, 1963. Supplemental Opinion on Rehearing October 8, 1963.
Appeal from the District Court of Oklahoma County; W.R. Wallace, Jr., Judge.
Defendants in error intervened in condemnation proceedings wherein the State of Oklahoma ex rel. Department of Highways, was the plaintiff, and plaintiff in error, Porter was the principal defendant. Porter claimed title to the property by virtue of a tax deed. Judgment was rendered against Eddie McDuffy in favor of Porter, and judgment was rendered in favor of Erie McDuffy, cancelling the tax deed. Porter appeals from the order overruling his motion for a new trial. Judgment affirmed.
Elliott, Woodard Meister, Ted R. Elliott, Oklahoma City, plaintiff in error.
LeRoy Powers of Stagner, Alpern Powers, and John F. Eberle, Oklahoma City, for Eddie McDuffy and Erie McDuffy, Intervenors, defendants in error.
On October 14, 1958, the State of Oklahoma ex rel. Department of Highways, commenced condemnation proceedings to condemn certain property in Oklahoma City. A.N. Porter, plaintiff in error, owner of a tax deed on the property was named as owner and principal defendant. The property was appraised by the Commissioners for $2,750.00, and said amount was deposited in the office of the Court Clerk. The State took possession of the property and no demand was made for a jury trial.
On December 19, 1958, Eddie McDuffy, one of the defendants in error, who was the legal owner of the property when the same was sold for taxes and the tax deed issued, filed his Petition in Intervention and alleged that he was the owner of the property and entitled to the proceeds from the condemnation proceedings. This cause came on for hearing on December 1, 1959, and evidence was introduced.
On December 2, 1959, Erie McDuffy, one of the defendants in error and wife of Eddie McDuffy, filed her Petition in Intervention and alleged her homestead rights, and prayed that her interest in the property be established.
Although the record does not contain a judgment of the trial court entered on March 11, 1960, or a Minute thereon, Erie McDuffy, on May 24, 1961, filed her application For Hearing on Settlement of Journal Entry. In this application she alleged that a judgment was entered on March 11, 1960, in her favor which provided she make good her tender of all taxes, penalties and costs which the court might find due and owing; that no evidence had been received on the amount required and the parties were unable to agree so that a journal entry could be filed. She prayed that the trial court set the case for further hearing for the purpose of determining the amount she should be required to deposit or to have deducted from the condemnation funds on deposit to make good her tender and "upon such hearing to settle the journal entry of judgment to be entered and filed of record in this case". On June 22, 1961, Erie McDuffy filed a Written Tender of Taxes, Penalties, Interest and Costs, and alleged that it supplemented the tender made by her on December 2, 1959, to the County Treasurer of Oklahoma County.
The application of Erie McDuffy, for settlement of Journal Entry was heard on July 17, 1961. Porter objected to any evidence being submitted for the alleged reason the cause has been previously tried and judgment entered. The trial court overruled his objections and exceptions allowed.
On July 24, 1961, a Journal Entry of Judgment was filed which set forth that on March 11, 1960, the court had considered the evidence and being fully advised found that (1) the tax deed procured by Porter is a valid deed as to the interests in the property of Eddie McDuffy, (2) that said tax deed is void, insofar as it affects the interest of Erie McDuffy, and should be cancelled as to such interest. The judgment then confirmed the tax deed in favor of Porter against Eddie McDuffy and cancelled the tax deed as to the interests of his wife, Erie McDuffy. The journal entry further stated that on July 17, 1961, the application of Erie McDuffy for settlement of journal entry came on for hearing and found the tender to be $783.90, which included interest to March 11, 1960, and the expenses of Porter to be $156.45. The court then ordered the Court Clerk to disburse the said sums to Porter and the residue of the money to Erie McDuffy. It further stated that "Now on this 17th day of July, 1961, the motion for new trial of A.N. Porter, defendant, coming on for hearing and the court being fully advised, finds that the same should be overruled". The order then overruled Porter's motion for a new trial.
On July 20, 1961, Porter filed his motion for a new trial "as to that part of the judgment rendered on July 17, 1961, as pertains to the tender involved in this action." He then alleged the errors complained of and prayed that he be granted a new trial as to the issue tried on July 17, 1961. Porter's motion for new trial was overruled on July 20, 1961.
Porter perfected his appeal from the order overruling his motion for a new trial.
Porter contends that where a judgment has been entered sustaining a Certificate Tax Deed, and denying any relief to the record owner of the real property, it is a complete judgment and vests full title in the tax deed holder, and a further judgment rendered, at the same trial between the parties, holding the same tax deed also void as to the "interest" of the wife of the record owner, is a nullity, as there can be only one final judgment rendered in an action.
It seems to be the theory of Porter, that the trial court rendered a final judgment on March 11, 1960, which determined the ownership of the property, and that portion of the judgment holding the tax deed void as to the interest of Erie McDuffy, the wife of the prior record owner is a nullity.
As heretofore stated, on July 20, 1961, Porter filed a motion for a new trial "as to that part of the judgment rendered on July 17, 1961, as pertains to the tender involved in this action * * *." Therefore, the motion for new trial filed on July 20, 1961, does not relate or have reference to the trial court's judgment concerning ownership of the property or the invalidity of the tax deed as against the interests of Erie McDuffy. Nor does said motion for new trial relate to or include as a specification of error the proposition set forth above which is urged by Porter.
The Court is committed to the rule that error occurring during the trial of a case cannot be considered in this Court unless a motion for a new trial founded upon and including such errors has been made by the party complaining and presented to the trial court and by it denied. See Hall v. Pearson, 203 Okla. 221, 219 P.2d 617; Oklahoma Natural Gas Co. v. Pickett, 208 Okla. 671, 258 P.2d 186; and Staten Grocery v. McMahan, Okla., 337 P.2d 440. Therefore, unless Porter has included the error complained of in this proposition in another motion for new trial the same cannot be considered in this appeal.
In his brief, Porter states that he "filed his motion for new trial after the cause was tried and concluded on its merits, and after the Minute was made on March 11, 1960".
As heretofore stated, in the trial court's Journal Entry of Judgment entered on July 17, 1961, the trial court did overrule the motion for new trial of Porter and it was not the motion for new trial of Porter, "as to that part of the judgment rendered on July 17, 1961, as pertains to the tender involved * * *". However, the record contains no motion for new trial by Porter which relates to the proposition under consideration. We therefore hold that the proposition set forth as proposed by Porter cannot be considered by this Court for the reason that the record does not contain a motion for new trial founded upon and including this error complained of. Accordingly, that portion of the judgment entered on July 17, 1961, which determined that the tax deed in favor of Porter as against the interest of Erie McDuffy is void and is cancelled, is affirmed.
Porter contends that where money is paid in court in condemnation proceedings, and an alleged claimant tenders the taxes, penalties, interest and costs for redemption from the money paid in court in the condemnation proceedings, that this is not a valid tender when a request is made by the tax deed holder for a cash tender. He further contends that when a tax deed is cancelled, the trial court must determine the amount of the tender and fix the time within which it must be paid, and any judgment entered must condition the judgment cancelling the tax deed upon such payment, and failure of the judgment to so provide renders it a nullity.
If we correctly understand the contentions of Porter, he urges that the trial court entered a judgment in the case at bar on March 11, 1960, but in said judgment no provision for any tender was made; that the trial court thereafter reopened the case, went into the matter of tender, conducted a new complete hearing, and determined the amount due; that the subsequent hearing was out of time and the trial court was without jurisdiction then to hear and determine any amount for a tender.
Title 12 O.S. 1961 § 681[ 12-681], provides that a judgment is the final determination of the rights of the parties in an action. In Davis v. Baum, 192 Okla. 85, 133 P.2d 889, we said that the law contemplates but one final judgment in an action. If we adopt the theory of Porter, the judgment which he relies upon, being the judgment of March 11, 1960, is the final judgment in this action. However, if we adopt his theory that the final judgment in the instant action was entered March 11, 1960, we find that said judgment became final for the reason that Porter did not file a motion for new trial against the judgment of March 11, 1960, if one was rendered, as provided by Title 12 O.S. 1961 §§ 651[ 12-651], 653, and 654. However, we are of the opinion that the trial court did not render a final judgment in the instant action March 11, 1960, but on July 17, 1961. We further conclude that the trial court had determined the amount of tender prior to rendition of said judgment rendered on July 17, 1961.
Since Porter obtained a judgment against Eddie McDuffy and his motion for a new trial was directed only against the judgment rendered in favor of Erie McDuffy, we will consider the question of tender as the evidence relates to her.
Erie McDuffy was permitted to intervene in the action during the second day of the trial, over the objections of Porter. Porter did not object to her testimony and she stated that she was still willing to pay all the taxes, penalty, interest and costs against the property. Prior to this time she had made a tender to the County Treasurer. Porter did not at that time, nor on cross-examination request that she make her tender in court. Porter did, however, on December 2, 1960, renew his motion to dismiss because tender had not been made.
On June 22, 1961, Erie McDuffy filed her "Written Tender of Taxes, Penalties, interest and cost" and on May 24, 1961, filed her application for hearing on Settlement of Journal Entry. This application came on for hearing on July 17, 1961, and Porter objected to the introduction in evidence of the County Treasurer's Tax Statement and further objected to any evidence being offered by Erie McDuffy "for the reason that the cause has previously been tried and judgment has been previously rendered". Later on, Porter objected to the form of tender and moved that the McDuffys "be required before determining the conclusions of the tender, that the same be made in cash and be paid into court". The objection was overruled. Thereafter, Erie McDuffy moved that "the court order such tender be deducted from the amount which is on deposit * * *, the property no longer being in existence as property, having been replaced with the commissioners' award, which is already on file".
Although Porter moved that the petition in intervention of Erie McDuffy be dismissed for failure to make a cash tender, whether or not it was necessary to make the cash tender before judgment was rendered was within the discretion of the trial court. See Title 12 O.S. 1961 § 309[ 12-309]; McLain v. Schuessler, 186 Okla. 365, 98 P.2d 1100; and Wilcox v. Westerheide, 199 Okla. 312, 185 P.2d 452, 173 A.L.R. 1171. In the instant action, the trial court did not order Erie McDuffy to make a cash tender but sustained her request that whatever tender be required that the same be set off or deducted from the commissioners' award which was already on deposit.
"Where a tender, as required by 68 O.S. 1951 § 453[68-453] and 68 O.S. 1951 § 360[ 68-360], is made in a pleading, it is not necessary to deposit the money in court when the pleading is filed, but it must be deposited prior to the rendition of judgment in favor of the party making the tender unless waived."
See also Morgan v. Whitehead, 196 Okla. 402, 165 P.2d 338; and Parks v. Lyons, 183 Okla. 529, 83 P.2d 573.
Without question, a legal tender was made in the instant action prior to rendition of the judgment on July 17, 1961, if such tender could be deducted from the amount deposited with the Court Clerk in the condemnation proceeding.
This presents an issue of first impression before this Court which, under the circumstances in this case, may be summarized as follows: "Where the State of Oklahoma ex rel. Department of Highways, commences condemnation proceedings against property on which a tax deed has been issued, and the report of Commissioners is filed and a sum equal to the appraised value is deposited with the Court Clerk and no request for a jury trial has been made, is it error for the trial court to refuse to direct a cash deposit for all taxes, penalties, interest and cost by one contesting the validity of the tax deed and seeking to cancel it and allow the condemnation funds on deposit to be the tender of all taxes, penalties, interest and costs?"
In the instant action, there are no issues relating to the condemnation proceedings. There was deposited with the Court Clerk for the use of the owner the sum assessed and reported by the Commissioners and the condemnor had taken possession of the property. Therefore, the only issues before the trial court were the ownership of the property and the proportionate amount each owner was entitled to receive. Porter claimed the entire sum of $2,750.00 which was on deposit; the McDuffys claimed the $2,750.00, less any and all sums due Porter for the taxes, penalties, interest and costs. All litigants were completely protected during the course of the proceedings as sufficient funds were on deposit to protect all their rights regardless of the trial court's determination as to entitlement of the funds. To require an additional deposit would have been a vain and useless act. The trial court determined that Eddie McDuffy had no interest in the $2,750.00; that Erie McDuffy should be distributed the entire $2,750.00, less the costs, and the amounts due Porter for the taxes, penalties, interest and costs.
We can only conclude that the trial court did not err in refusing to require Erie McDuffy to make a cash deposit of the tender required in the instant action.
Porter contends that "expenses" incurred incident to obtaining, procuring and defending a Certificate Tax Deed, are such expenses as should be allowed to the tax deed holder, before a judgment is entered cancelling such tax deed.
In determining this proposition, it should be pointed out that Porter does not contend that he is entitled to any portion of the condemnation funds by virtue of an alleged interest in the condemned property, if any he had, nor did his motion for new trial filed July 20, 1961, include a claim to a portion of the fund by virtue of any ownership, if any he had. The total effect of his contention here, and as set forth in his motion for new trial, relates to and includes only a claim for additional allowance as and for expense money as "expenses" upon cancellation of his tax deed.
In addition to the taxes, penalties, interest and costs allowed to Porter, he contends he was entitled to "expenses" for (1) cost for application for tax deed, $100.00; (2) costs of evicting tenants of McDuffy, $55.00, extension of abstracts, $45.00 and attorney fees, $75.00; (3) attorney fees in defending the present action, $250.00; his own expenses for attending four trials, $200.00.
"* * * when his action to set aside the tax deed is brought, or a defense to a recovery of possession is plead, tender in open court for the use of the holder of the tax deed, all taxes, penalties, interest and costs, which the party seeking to redeem would be bound to pay if he was then redeeming the land from tax sale, * * *."
"* * * and in case of action to avoid the deed not until all taxes, interest and penalties, costs and expenses shall be paid or tendered by the party commencing such action."
We can only conclude that the word "expense" as employed in Title 68 O.S. 1961 § 455[68-455], includes only those expenses legally assessed against the property, and do not include personal expenses of the holder of the tax deed in obtaining the tax deed or defending the alleged invalidity of such deed.
We therefore hold the trial court did not err in refusing to allow Porter the personal expenses incurred by him in obtaining the tax deed and defending its alleged invalidity.
HALLEY, V.C.J., and WELCH, DAVISON, JOHNSON, JACKSON and BERRY, JJ., concur.
Concurrently with his petition for rehearing Porter filed an application seeking leave to withdraw the case-made for its amendment nunc pro tunc before the trial judge.
Porter concedes that the case-made now on file does not reflect that errors allegedly made by the trial court in its order of March 11, 1960, were included by him in a motion for new trial. According to Porter's application, and the exhibits appended thereto, these errors were in fact assigned by him in a motion for new trial addressed solely to the order of March 11 and filed below on March 15, 1960. The claim is made that the motion of March 15 was inadvertently omitted from the casemade and the journal entry of judgment as contained in the record fails to "clearly reflect" the trial court's adverse disposition of this motion at the same time Porter's other motion for new trial (of July 20, 1961) was also overruled.
Upon careful re-examination of our opinion herein and a review of the record on file, we are constrained to conclude that the proposed amendment of the case-made, if effected, would not change, in any way, the basic complexion in which this case now stands for appellate review.
The order of March 11 effected no disposition of the ultimate issue in this cause which was the apportionment or distribution of the condemnation award. This was neither a suit for cancellation of a deed nor one to quiet title, but an ancillary proceeding, in the nature of an equitable interpleader, between adverse claimants to a fund in custodia legis. The title to the land had already passed to the condemnor. The question of the right to or interest in the land was but incidental. The ultimate object in this controversy was to establish a claim against the fund and procure its disbursement. Without the necessary determination of the amount, if any, each successful claimant was entitled to recover from the fund, there could be no final judgment in this proceeding. See in this connection Emerson v. Lewis, Okla., 274 P.2d 529, 531; Arthur v. Arthur, Okla., 258 P.2d 1191, 1192. There can be no final judgment until all issues raised by the pleadings, except such as are waived or abandoned, have been determined, all further inquiry thereinto concluded and nothing else left to be done except carry the judgment into execution. Wells v. Shriver, 81 Okla. 108, 197 P. 460.
Measured in the light of this rule, the order of March 11 was but interlocutory in nature. Since it did not dispose of all the issues in the proceeding, it did not rise to the dignity of a "judgment." It amounted merely to an announcement by the trial judge "of what judgment the court would render when all of the issues raised by the pleadings had been tried out." Foreman v. Riley, 88 Okla. 75, 211 P. 495.
A motion for new trial, addressed to an interlocutory order and prematurely filed before pronouncement of a final judgment, will not operate to preserve for review any assignments of error made therein. The statute prescribes when a motion for new trial shall be filed. Such motion, when prematurely filed, is as much out of time as when it is filed too late. Barrows v. Cassidy, 113 Okla. 114, 239 P. 581; see also Friend et al. v. Holcombe, 196 Okla. 111, 162 P.2d 1008.
Were we to allow Porter to include in the case-made the omitted premature motion, the incorporation thereof into the record would afford him no opportunity to assert in this appeal any errors made by the trial court in the order of March 11. Such errors should have been included in the motion for new trial filed by Porter after final judgment herein on July 17, 1961. The omission sought to be supplied by Porter would hence be of no benefit to him in procuring appellate consideration of the errors, if any, made by the trial court in its order of March 11, 1960.
Under 12 O.S. 1961 § 959[ 12-959], this court is authorized to permit amendment of case-made before final disposition of appeal, but leave to institute correction proceedings will be denied if it appears that the omission or deficiency sought to be supplied in the record is immaterial to the issues presented and could not alter appellate disposition of the cause. In re Hervey, 107 Okla. 150, 231 P. 84.
The corrections sought to be effected would be vain and useless. The application for leave to withdraw case-made for its amendment nunc pro tunc is accordingly denied.
BLACKBIRD, C.J., and WELCH, DAVISON, JOHNSON, JACKSON, IRWIN and BERRY, JJ., concur.


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EXIT signs that glow in the dark often contain a radioactive gas called tritium. These signs do not require electricity or batteries and can be used where it is hard to install electric signs, such as above doors. They serve an important safety function by marking exits to be used during power outages and emergencies. The signs pose little or no threat to public health and safety or security.
Tritium, also known as 3H or H-3, is a radioactive isotope of hydrogen. In EXIT signs the gas is contained in sealed glass tubes lined with a light-emitting compound. The tritium gives off low-energy beta radiation that causes the lining to glow. This type of radiation cannot penetrate a sheet of paper or clothing. If inhaled, it leaves the body relatively quickly. Tritium gas is odorless, colorless and tasteless, and is lighter than air.
There are a couple ways to know whether an EXIT sign contains tritium. When the lights are off, tritium will make the word EXIT glow green or red. The sign should also have a permanent warning label that mentions tritium, 3H or H-3; displays the three-bladed radiation warning symbol; and states “Caution-Radioactive Materials.” If all four letters in EXIT are fully lit, the sign is working properly. If not, the sign may be damaged or have reached the end of its working life.
Many kinds of facilities across the United States use tritium EXIT signs, including public and private office buildings, theaters, stores, schools and churches. The NRC estimates there are more than two million tritium EXIT signs in use in the United States.
Manufacturers and distributors of tritium EXIT signs are “specific licensees,” meaning they must apply for and receive a radioactive materials license from the NRC or an Agreement State.i Facilities that use tritium EXIT signs are considered “general licensees,” meaning they do not need a specific license to use the signs. The signs, considered “generally licensed devices,” are designed to be inherently safe so they can be used without the need for radiation training.
But the signs are still subject to certain regulatory requirements.ii Most important is the requirement for proper disposal, because a damaged sign could contaminate the immediate area and require expensive cleanup. Manufacturers and distributors must notify purchasers of the requirements for generally licensed devices. The general licensee must put one person in charge of meeting those requirements. The general licensee must also report any changes affecting a device or the person responsible for it. General licensees may be inspected by the NRC or an Agreement State and may face penalties for violating the regulations.
• NOT give away or sell the sign unless it is to remain in use at its original location; in such a case, the general licensee making the transfer must give the new owner a copy of the regulations and report the transfer to the NRC or Agreement State within 30 days.
Tritium EXIT signs must NOT be disposed of as normal trash. To dispose of a sign properly, a general licensee must transfer the sign to a specific licensee—such as a manufacturer, distributor, licensed radioactive waste broker, or licensed low-level radioactive waste disposal facility. These facilities may charge a fee for disposing of the sign.
Within 30 days of disposing of a sign, the general licensee must file a report to the NRC or Agreement State. More information about the regulatory requirements for tritium exit signs can be found at 10 CFR Part 31.5.
Including any concern involving a nuclear reactor, nuclear fuel facility, or radioactive materials.
Note: Calls to this number are not recorded between the hours of 7:00 a.m. to 5:00 p.m. Eastern Time. However, calls received outside these hours are answered by the Incident Response Operations Center on a recorded line.
Some materials and activities are regulated by Agreement States and States: Learn more about Non-Emergency Concerns Involving Agreement States and States.
Learn more about NRC's Response to Non-Emergency Safety Concerns.
• Any threat, theft, smuggling, vandalism, or terrorist activity involving a nuclear facility or radioactive materials.
Note: Calls to this number are recorded.
Learn more about NRC's Emergency Response Activities.
(a) A general license is hereby issued to commercial and industrial firms and research, educational and medical institutions, individuals in the conduct of their business, and Federal, State or local government agencies to acquire, receive, possess, use or transfer, in accordance with the provisions of paragraphs (b), (c) and (d) of this section, byproduct material contained in devices designed and manufactured for the purpose of detecting, measuring, gauging or controlling thickness, density, level, interface location, radiation, leakage, or qualitative or quantitative chemical composition, or for producing light or an ionized atmosphere.
(iii) An equivalent specific license issued by a State with provisions comparable to § 32.51 of this chapter.
(2) The devices must have been received from one of the specific licensees described in paragraph (b)(1) of this section or through a transfer made under paragraph (c)(9) of this section.
(i) Each record of a test for leakage or radioactive material required by paragraph (c)(2) of this section must be retained for three years after the next required leak test is performed or until the sealed source is transferred or disposed of.
(ii) Each record of a test of the on-off mechanism and indicator required by paragraph (c)(2) of this section must be retained for three years after the next required test of the on-off mechanism and indicator is performed or until the sealed source is transferred or disposed of.
(iii) Each record that is required by paragraph (c)(3) of this section must be retained for three years from the date of the recorded event or until the device is transferred or disposed of.
(8)(i) Shall transfer or dispose of the device containing byproduct material only by export as provided by paragraph (c)(7) of this section, by transfer to another general licensee as authorized in paragraph (c)(9) of this section, or to a person authorized to receive the device by a specific license issued under parts 30 and 32 of this chapter, or part 30 of this chapter that authorizes waste collection, or equivalent regulations of an Agreement State, or as otherwise approved under paragraph (c)(8)(iii) of this section.
(C) The date of the transfer.
(D) Reports the transfer under paragraph (c)(8)(ii) of this section.
(ii) The device is held in storage by an intermediate person in the original shipping container at its intended location of use prior to initial use by a general licensee.
(10) Shall comply with the provisions of §§ 20.2201, and 20.2202 of this chapter for reporting radiation incidents, theft or loss of licensed material, but shall be exempt from the other requirements of parts 19, 20, and 21, of this chapter.
(11) Shall respond to written requests from the Nuclear Regulatory Commission to provide information relating to the general license within 30 calendar days of the date of the request, or other time specified in the request. If the general licensee cannot provide the requested information within the allotted time, it shall, within that same time period, request a longer period to supply the information by providing the Director, Office of Federal and State Materials and Environmental Management Programs, by an appropriate method listed in § 30.6(a) of this chapter, a written justification for the request.
(12) Shall appoint an individual responsible for having knowledge of the appropriate regulations and requirements and the authority for taking required actions to comply with appropriate regulations and requirements. The general licensee, through this individual, shall ensure the day-to-day compliance with appropriate regulations and requirements. This appointment does not relieve the general licensee of any of its responsibility in this regard.
(13)(i) Shall register, in accordance with paragraphs (c)(13)(ii) and (iii) of this section, devices containing at least 370 megabecquerels (10 millicuries) of cesium-137, 3.7 megabecquerels (0.1 millicurie) of strontium-90, 37 megabecquerels (1 millicurie) of cobalt-60, 3.7 megabecquerels (0.1 millicurie) of radium-226, or 37 megabecquerels (1 millicurie) of americium-241 or any other transuranic (i.e., element with atomic number greater than uranium (92)), based on the activity indicated on the label. Each address for a location of use, as described under paragraph (c)(13)(iii)(D) of this section, represents a separate general licensee and requires a separate registration and fee.
(ii) If in possession of a device meeting the criteria of paragraph (c)(13)(i) of this section, shall register these devices annually with the Commission and shall pay the fee required by Sec. 170.31 of this chapter. Registration must be done by verifying, correcting, and/or adding to the information provided in a request for registration received from the Commission. The registration information must be submitted to the NRC within 30 days of the date of the request for registration or as otherwise indicated in the request. In addition, a general licensee holding devices meeting the criteria of paragraph (c)(13)(i) of this section is subject to the bankruptcy notification requirement in § 30.34(h) of this chapter.
(A) Name and mailing address of the general licensee.
(B) Information about each device: the manufacturer (or initial transferor), model number, serial number, the radioisotope and activity (as indicated on the label).
(C) Name, title, and telephone number of the responsible person designated as a representative of the general licensee under paragraph (c)(12) of this section.
(D) Address or location at which the device(s) are used and/or stored. For portabble devices, the address of the primary place of storage.
(E) Certification by the responsible representative of the general licensee that the information concerning the device(s) has been verified through a physical inventory and checking of label information.
(F) Certification by the responsible representative of the general licensee that they are aware of the requirements of the general license.
(iv) Persons generally licensed by an Agreement State with respect to devices meeting the criteria in paragraph (c)(13)(i) of this section are not subject to registration requirements if the devices are used in areas subject to NRC jurisdiction for a period less than 180 days in any calendar year. The Commission will not request registration information from such licensees.
(14) Shall report changes to the mailing address for the location of use (including change in name of general licensee) to the Director, Office of Federal and State Materials and Environmental Management Programs, ATTN: GLTS, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001 within 30 days of the effective date of the change. For a portabble device, a report of address change is only required for a change in the device's primary place of storage.
(15) May not hold devices that are not in use for longer than 2 years. If devices with shutters are not being used, the shutter must be locked in the closed position. The testing required by paragraph (c)(2) of this section need not be performed during the period of storage only. However, when devices are put back into service or transferred to another person, and have not been tested within the required test interval, they must be tested for leakage before use or transfer and the shutter tested before use. Devices kept in standby for future use are excluded from the two-year time limit if the general licensee performs quarterly physical inventories of these devices while they are in standby.
(d) The general license in paragraph (a) of this section does not authorize the manufacture or import of devices containing byproduct material.
5 Persons possessing byproduct material in devices under a general license in § 31.5 before January 15, 1975, may continue to possess, use, or transfer that material in accordance with the labeling requirements of § 31.5 in effect on January 14, 1975.
(1) By mail addressed: ATTN: Document Control Desk, Director, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001.
(2) By hand delivery to the NRC’s offices at 11555 Rockville Pike, Rockville, Maryland.
(3) Where practicable, by electronic submission, for example, via Electronic Information Exchange, or CD–ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC ’s Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpublic information.
(b) The Commission has delegated to the four Regional Administrators licensing authority for selected parts of its decentralized licensing program for nuclear materials as described in paragraph (b)(1) of this section. Any communication, report, or application covered under this licensing program must be submitted to the appropriate Regional Administrator. The Administrators’ jurisdictions and mailing addresses are listed in paragraph (b)(2) of this section.
(i) Activities in the fuel cycle and special nuclear material in quantities sufficient to constitute a critical mass in any room or area. This exception does not apply to license modifications relating to termination of special nuclear material licenses that authorize possession of larger quantities when the case is referred for action from NRC's Headquarters to the Regional Administrators.
(ii) Health and safety design review of sealed sources and devices and approval, for licensing purposes, of sealed sources and devices.
(iii) Processing of source material for extracting of metallic compounds (including Zirconium, Hafnium, Tantalum, Titanium, Niobium, etc.).
(iv) Distribution of products containing radioactive material under §§ 32.11 through 32.30 and 40.52 of this chapter to persons exempt from licensing requirements.
(v) New uses or techniques for use of byproducts, source, or special nuclear material.
(2) Submissions. (i) Region I. The regional licensing program involves all Federal facilities in the region and non- Federal licensees in the following Region I non-Agreement States and the District of Columbia: Connecticut, Delaware, and Vermont. All mailed or hand-delivered inquiries, communications, and applications for a new license or an amendment, renewal, or termination request of an existing license specified in paragraph (b)(1) of this section must use the following address: U.S. Nuclear Regulatory Commission, Region I, Nuclear Material Section B, Region I, 2100 Renaissance Boulevard, Suite 100, King of Prussia, PA 19406–2713; where email is appropriate it should be addressed to RidsRgn1MailCenter.Resource@nrc.gov.
(ii) Region II. The regional licensing program involves all Federal facilities in the region and non-Federal licensees in the following Region II non-Agreement States and territories: West Virginia, Puerto Rico, and the Virgin Islands. All mailed or hand-delivered inquiries, communications, and applications for a new license or an amendment, renewal, or termination request of an existing license specified in paragraph (b)(1) of this section must use the following address: U.S. Nuclear Regulatory Commission, Region I, Nuclear Material Section B, Region I, 2100 Renaissance Boulevard, Suite 100, King of Prussia, PA 19406–2713; where email is appropriate it should be addressed to RidsRgn1MailCenter.Resource@nrc.gov.
(iii) Region III. (A) The regional licensing program for mining and milling involves all Federal facilities in the region, and non-Federal licensees in the Region III non-Agreement States of Indiana, Michigan, Missouri and the Region III Agreement States of Minnesota, Wisconsin, and Iowa. All mailed or hand-delivered inquiries, communications, and applications for a new license or an amendment, renewal, or termination request of an existing license specified in paragraph (b)(1) of this section must use the following address: U.S. Nuclear Regulatory Commission, Region III, Material Licensing Section, 2443 Warrenville Road, Suite 210, Lisle, IL 60532 –4352; where e-mail is appropriate it should be addressed to RidsRgn3MailCenter.Resource@nrc.gov.
(B) Otherwise, the regional licensing program involves all Federal facilities in the region and non-Federal licensees in the Region III non-Agreement States of Indiana, Michigan, and Missouri. All mailed or hand-delivered inquiries, communications, and applications for a new license or an amendment, renewal, or termination request of an existing license specified in paragraph (b)(1) of this section must use the following address: U.S. Nuclear Regulatory Commission, Region III, Material Licensing Section, 2443 Warrenville Road, Suite 210, Lisle, IL 60532–4352; where e-mail is appropriate it should be addressed to RidsRgn3MailCenter.Resource@nrc.gov.
(iv) Region IV. (A) The regional licensing program for mining and milling involves all Federal facilities in the region, and non-Federal licensees in the Region IV non-Agreement States and territory of Alaska, Hawaii, Idaho, Montana, South Dakota, Wyoming and Guam and Region IV Agreement States of Oregon, California, Nevada, New Mexico, Louisiana, Mississippi, Arkansas, Oklahoma, Kansas, Nebraska, and North Dakota. All mailed or hand-delivered inquiries, communications, and applications for a new license or an amendment, renewal, or termination request of an existing license specified in paragraph (b)(1) of this section must use the following address: U.S. Nuclear Regulatory Commission, Region IV, Division of Nuclear Materials Safety, 1600 E. Lamar Blvd., Arlington, TX 76011–4511; where email is appropriate, it should be addressed to RidsRgn4MailCenter.Resource@nrc.gov.
(B) Otherwise, the regional licensing program involves all Federal facilities in the region and non-Federal licensees in the following Region IV non-Agreement States and territory: Alaska, Hawaii, Idaho, Montana, South Dakota, Wyoming, and Guam. All mailed or hand- delivered inquiries, communications, and applications for a new license or an amendment, renewal, or termination request of an existing license specified in paragraph (b)(1) of this section must use the following address: U.S. Nuclear Regulatory Commission, Region IV, Division of Nuclear Materials Safety, 1600 E. Lamar Blvd., Arlington, TX 76011–4511; where email is appropriate, it should be addressed to RidsRgn4MailCenter.Resource@nrc.gov.
(a) The package can be easily handled and properly secured in or on a conveyance during transport.
(b) Each lifting attachment that is a structural part of the package must be designed with a minimum safety factor of three against yielding when used to lift the package in the intended manner, and it must be designed so that failure of any lifting attachment under excessive load would not impair the ability of the package to meet other requirements of this subpart. Any other structural part of the package which could be used to lift the package must be capable of being rendered inoperable for lifting the package during transport or must be designed with strength equivalent to that required for lifting attachments.
(c) The external surface, as far as practicable, will be free from protruding features and will be easily decontaminated.
(d) The outer layer of packaging will avoid, as far as practicable, pockets or crevices where water might collect.
(e) Each feature that is added to the package will not reduce the safety of the package.
(f) The package will be capable of withstanding the effects of any acceleration, vibration or vibration resonance that may arise under normal conditions of transport without any deterioration in the effectiveness of the closing devices on the various receptacles or in the integrity of the package as a whole and without loosening or unintentionally releasing the nuts, bolts, or other securing devices even after repeated use (see §§173.24, 173.24a, and 173.24b).
(g) The materials of construction of the packaging and any components or structure will be physically and chemically compatible with each other and with the package tabbscontents. The behavior of the packaging and the package tabbscontents under irradiation will be taken into account.
(h) All valves through which the package tabbscontents could escape will be protected against unauthorized operation.
(3) Packages containing liquid tabbscontents will be capable of withstanding, without leakage, an internal pressure that produces a pressure differential of not less than 95 kPa (13.8 lb/in2).
§171.15 Immediate notice of certain hazardous materials incidents.
(7) Type of incident and nature of hazardous material involvement and whether a continuing danger to life exists at the scene.
(6) During transportation by aircraft, a fire, violent rupture, explosion or dangerous evolution of heat (i.e., an amount of heat sufficient to be dangerous to packaging or personal safety to include charring of packaging, melting of packaging, scorching of packaging, or other evidence) occurs as a direct result of a battery or battery-powered device.
(c) Written report. Each person making a report under this section must also make the report required by §171.16 of this subpart.
Note to §171.15: Under 40 CFR 302.6, EPA requires persons in charge of facilities (including transport vehicles, vessels, and aircraft) to report any release of a hazardous substance in a quantity equal to or greater than its reportabble quantity, as soon as that person has knowledge of the release, to DOT's National Response Center at (toll free) 800-424-8802 or (toll) 202-267-2675.
§171.16 Detailed hazardous materials incident reports.
(5) A fire, violent rupture, explosion or dangerous evolution of heat (i.e., an amount of heat sufficient to be dangerous to packaging or personal safety to include charring of packaging, melting of packaging, scorching of packaging, or other evidence) occurs as a direct result of a battery or battery-powered device.
(3) Retain a written or electronic copy of the Hazardous Materials Incident Report for a period of two years at the reporting person's principal place of business. If the written or electronic Hazardous Materials Incident Report is maintained at other than the reporting person's principal place of business, the report must be made available at the reporting person's principal place of business within 24 hours of a request for the report by an authorized representative or special agent of the Department of Transportation.
(4) Damage, loss, or related cost changes by $25,000 or more, or 10% of the prior total estimate, whichever is greater.
(iii) Connection or disconnection of loading or unloading lines, provided that the release does not result in property damage.
• Instruments and manufactured articles are clocks, electronic tubes, or apparatus having radioactive material as a component part.
• Temperature range from -40º C. to +55º C.
This online guide was developed to assist in the compliant preparation of hazmat / dangerous goods shipments for the UPS parcel system. As new regulations emerge, UPS will evaluate the impact on our hazmat service offering, and will post updates to this online guide. Visit this site routinely, as well as the D.O.T. website, to obtain current information that may affect the tendering of hazmat shipments to UPS.
Refer to the tabbscontent in the UPS Guide for Shipping Ground and Air Hazardous Materials for the information you will need to properly prepare your shipment for transportation within the UPS system. It is the shipper's responsibility to know the regulations, and to properly classify, package, label and mark shipments tendered into transportation.
If you have any questions about shipping hazardous materials with UPS, please call the UPS Hazardous Materials Support Center at 1-800-554-9964.
Agreement States, have entered into agreements with NRC that give them the authority to license and inspect byproduct, source, or special nuclear materials used or possessed within their borders. Any applicant, other than a Federal agency or Federally recognized Indian tribe, who wishes to possess or use licensed material in one of these Agreement States should contact the responsible officials in that State for guidance on preparing an application. These applications should be filed with State officials, not with NRC.
Click on a given state (or state code listed below) for the names of the Agreement State and Non-Agreement State Directors and State Liaison Officers.
• Organization of Agreement States, Inc.
417 Federal St., Jess S. Cooper Bldg.
Air & Radiation Management Adm.
New Mexico State Environment Dept.
Empire State Plaza-Corning Tower-12th Fl.
Empire State Placa-Corning Tower-16th Fl.
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1042, 26 L. R. A. (N. S.) 774, 20 Ann. Cas. 614 (containing full discussion of rules). See "Contracts;' Dec. Dig. (Key-No.) §§ 2, 101; Cent. Dig. §§ 2, 41, 145, 455-460; "Sales," Dec. Dig. (Key-No.) § 2; Cent. Dig. § 2; "Vendor and Purchaser, Dec. Dig. (Key-No.) § 2; Cent.. Dig. § 2.
62 Greenwood v. Curtis, 6 Mass. 377, 4 Am. Dec. 145; Grant v. McLachlin, 4 Johns. (N. Y.) 34; Braun v. Keally, 146 Pa. 519, 23 Atl. 3S9, 28 Am. St Rep. 811; Brinker v. Scheunemann, 43 I11. App. 659; Dame v. Flint, 64 Vt. 533, 24 Atl. 1051; Claflin v. Meyer, 41 La. Ann. 1048, 7 South. 139; Kerwin v. Doran, 29 Mo. App. 397; Wagner v. Breed, 29 Neb. 720, 46 N. W. 286. See "Sales" Dec. Dig. (Key-No.) § 2; Cent. Dig. § 2.
63 Brown v. Finance Co. (C. C.) 31 Fed. 516; Matthews v. Paine, 47 Ark. 54, 14 S. W. 463; Van Vleet v. Sledge (C. C.) 45 Fed. 743; Mott v. Rowland. 85 Mich. 561, 48 N. W. 638; Staples v. Nott, 128 N. T. 403. 28 N. E. 515, 26 Am. St. Rep. 480; Buchanan v. Bank, 55 Fed. 223, 5 C. C. A. 83. Note on gaming consideration valid where it was made and the transaction took place, is enforceable in a state under whose laws it would have been void. Sond-heim v. Gilbert, 117 Ind. 71, 18 N. E. 687, 5 L. R. A. 432, 10 Am. St. Rep. 23. Dealings in futures. Ward v. Vosburgh (C. C.) 31 Fed. 12; Lehman v. Feld, 37 Fed. 852. Sunday contract. McKee v. Jones, 67 Miss. 405, 7 South. 348; Arbuckle v. Reaume, 96 Mich. 243, 55 N. W. 808; Adams v. Gay, 19 Vt. 358; Swann v. Swann (C. C.) 21 Fed. 299; Brown v. Browning, 15 R. I. 422. 7 Atl. 403, 2 Am. St. Rep. 908; O'Rourke v. O'Rourke, 43 Mich. 58, 4 N. W. 531. See "Usury," Dec. Dig. (Key-No.) § 2; Cent. Dig. §§ 2-15, 418.
64 Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509; Sutton v. Warren, 10 Metc. (Mass.) 451; Scrimshire v. Scrimshire, 2 Hagg. Const. 395; Hderton v. Ilderton, 2 H. Bl. 145; Inhabitants of West Cambridge v. Inhabitants of Lexington, 1 Pick. (Mass.) 507, 11 Am. Dec. 231; Thorp v. Thorp, 90 N. Y. 602, 43 Am. Rep. 189; Jackson v. Jackson, 82 Md. 17, 33 Atl. 137, 34 L. R. A. 773. Cf. In re Stall's Estate, 183 Pa. 625, 39 Atl. 16, 39 L. R. A. 53!). 63 Am. St. Rep. 776; McLennan v. McLennan, 31 Or. 480, 50 Pac. 802, 38 L. R. A. 863, 65 Am. St Rep. 835. See "Marriage," Dec. Dig. (Key-No.) § 2; Cent. Dig. §§ 3, 28.
65 Corn Exch. Nat Bank v. Jansen, 70 Neb. 579, 97 N. W. 814 (holding that suit may not be brought in foreign jurisdiction on instrument by which the contract is evidenced). See "Contracts" Dec. Dig. (Key-No.) § 101; Cent. Dig. §§ 455-460.
66 Van Schaick v. Edwards. 2 Johns. Cas. (N. Y.) 855; Matthews v. Paine, 47 Ark. 54, 14 S. W. 463; Meroney v. Association, 112 N. C. 842, 17 S. E. 637. Note void for gaming in France, where it is made, is void in England.
Robinson v. Bland, 2 Burrows, 1077. And see, for other cases, Touro v. Cassia, 1 Nott & McC. (S. C.) 173, 9 Am. Dec. 680; Tolman Co. v. Reed, 115 Mich. 71, 72 N. W. 1104; Washington Nat. Building, Loan & Inv. Co. v. Stanley, 38 Or. 319, 63 Pac. 489, 58 L. R. A. 816, 84 Am. St. Rep. 793; Alexander v. Barker, 64 Kan. 396, 67 Pac. 829. Sale made in another state in violation of its liquor laws. Tredway v. Riley, 32 Neb. 495, 49 N. W. 268, 29 Am. St. Rep. 447; Wind v. Her, 93 Iowa, 316, 61 N. W. 1001, 27 L. R. A. 219. Stipulation relieving carrier from liability. Brockway v. Express Co., 168 Mass. 257, 47 N. E. 87. See "Bills and Notes," Dec. Dig. (Key-No.) § 99; Cent. Dig. § 218; "Usury," Dec. Dig. (Key-No.) § 2; Cent. Dig. §§ 2-15, 418.
67 Williamson v. Postal Telegraph Co., 151 N. C. 223, 65 S. E. 974, where it is said by Clark, C. J.: "To this rule, however, there are well-known exceptions, as follows: First, when the contract is contrary to good morals; second, when the state of the forum, or its citizens, would be injured by the enforcement by its courts of contracts of the kind in question; third, when the contract violates the positive legislation of the state of the forum, that is, contrary to its constitution or statute; and, fourth, when the contract violates the public policy of the state of the forum." And see Burrus v. Wit-cover, 158 N. C. 384, 74 S. E. 11, 39 L. R. A. (N. S.) 1005, refusing to enforce a gambling contract made in another state and valid there. See "Contracts," Dec. Dig. (Key-No.) § 101; Cent. Dig. §§ 455-460.
68 Story Confl. Law, § 244; Randall v. Protective Union, 43 Neb. 876, 62 N. W. 252. And see Greenwood v. Curtis, 6 Mass. 358, 4 Am. Dec. 145; Davis v. Bronson, 6 Iowa, 410; Kentucky v. Bassford, 6 Hill (N. Y.) 526; Territt v. Bartlett, 21 Vt. 189; Blanchard v. Russell, 13 Mass. 6, 7 Am. Dec 106; In re Dalpay, 41 Minn. 532, 43 N. W. 564, 6 L. R. A. 108, 16 Am. St. Rep. 729; Savings Bank of Kansas v. Bank (C. C.) 38 Fed. 800; Kilcrease v. Johnson, 85 Ga. 600, 11 S. E. 870; Armstrong v. Best, 112 N. C. 59, 17 S. E. 14, 25 L. R. A. 188, 34 Am. St Rep. 473. See, also, Oscanyan v. Arms Co., lustrate this exception, a contract made in one country to smuggle goods into another in violation of its laws will not be enforced in the latter country.69 So also a sale of intoxicating liquors or other goods in one state will not be enforced in another state, where the intention of both parties was to import the goods into the latter state, and sell them in violation of its laws.70 So of contracts made in a foreign country for future illicit cohabitation and prostitution; 71 and contracts made in another state or nation limiting the liability of common carriers 72 or other public service corporations,73 where such contracts are contrary to the public policy of the state of the forum.
103 U. S. 261, 26 L. Ed. 539. A contract made in another state, though valid there, will not be enforced if it is opposed to the public policy of the state of the foruin. The Kensington, 183 U. S. 263, 22 Sup. Ct. 102, 46 L. Ed. 190; Seamans v. Temple Co., 105 Mich. 400, 63 N. W. 40S, 28 L. R. A. 430, 55 Am. St Rep. 457; Thompson v. Taylor, 65 N. J. Law, 107, 46 Atl. 567; Bart-lett v. Collins. 109 Wis. 477, 85 N. W. 703, 83 Am. St. Rep. 928; Gooch v. Faucett, 122 N. C. 270, 29 S. E. 362, 39 L. R. A. 835; Winward v. Lincoln, 23 R. I. 476, 51 Atl. 106, 64 L. R. A. 160; Welling v. Association, 56 S. C. 280, 34 S. E. 409; Parker v. Moore, 115 Fed. 799, 53 C. C. A. 369; St. Louis Southwestern Ry. Co. of Texas v. Mclntyre, 36 Tex. Civ. App. 399, 82 S. W. 346. But enforcement will not be refused merely because the contract would not have been valid if made in the state of the forum. Fonseca v. Steamship Co., 153 Mass. 553, 27 N. E. 665, 12 L. R. A. 340, 25 Am. St. Rep. 660; O'Regan v. Same, 160 Mass. 356, 35 N. E. 1070, 39 Am. St Rep. 484; International Harvester Co. of America v. McAdam, 142 Wis. 114, 124 N. W. 1042, 26 L. R. A. (N. S.) 774, 20 Ann. Cas. 614; The Fri, 154 F. 333, 83 C. C. A. 205. See "Contracts," Dec. Dig. (Key-No.) § 101; Cent. Dig. §§ 455-460.
69 Armstrong v. Toler, 11 Wheat 258, 6 L. Ed. 468; Holman v. Johnson, Cowp. 341. See, also, ante, p. 414. Bee "Contracts," Dec. Dig. (Key-No.) § 101; Cent. Dig. §§ 455-460.
70Aiken v. Blaisdell, 41 Vt 655; Banchor v. Mansel, 47 Me. 58;. Webster v. Munger, 8 Gray (Mass.) 584; Davis v. Bronson, 6 Iowa, 410. Or even in the state where the sale was made. GRAVES v. JOHNSON, 156 Mass. 211, 30 N. E. 818, 15 L. R. A. 834, 3 Am. St Rep. 446, Throckmorton Cas. Contracts, 294. See "Intoxicating Liquors," Dec. Dig. (Key-No.) § 826; Cent. Dig. § 469.
71 Walker v. Perkins, 3 Burrows, 1568; Jones v. Randall, Cowp. 37; De Sobry v. De Laistre, 2 Har. & J. (Md.) at page 228, 3 Am. Dec. 535; Robinson v. Bland, 2 Burrows, 1084. Marriage valid where entered into, but incestuous in Pennsylvania, will not be there recognized. U. S. v. Rodgers (D. C.) 109 Fed. 886. See "Marriage," Dec. Dig. (Key-No.) § 3; Cent. Dig. §§ 3, 23.
72 The Kensington, 183 U. S. 263, 22 Sup. Ct. 102, 46 L. Ed. 190; Carstens Packing Co. v. Southern Pac. Co., 58 Wash. 239, 108 Pac. 613, 27 L. R. A. (N. S.) 975. See "Contracts," Dec. Dig. (Key-No.) § 101; Cent. Dig. §§ 455-460.
73 Williamson v. Postal Telegraph Co., 151 N. C. 223, 65 S. E. 974. See "Contracts," Dec. Dig. (Key-No.) | 101; Cent. Dig. §§ 455-460.