Maurice Gordon, Mark F. Jones, Jr., Los Angeles, Cal., for appellant.
C. E. H. McDonnell, Los Angeles, Cal., for appellee.
This is an appeal from an order of the District Court, Southern District of California, Central Division, which affirmed an order of a Referee in Bankruptcy denying to appellant a homestead exemption.
Appellant, after being adjudicated a bankrupt, claimed a homestead exemption of real property upon which he resided. The Referee in Bankruptcy refused to allow the exemption and this action was confirmed by the District Court upon a petition to review. This appeal followed. Jurisdiction of the court below is based on § 2, sub. a(10) of the Bankruptcy Act (11 U.S.C.A. § 11). Jurisdiction of this court is based upon § 24 of the Bankruptcy Act (11 U.S.C.A. § 47).
"Homestead on home at 11042 West Hondo Parkway, Temple City; petitioner's 11-year old daughter resides with petitioner during the summer months school vacation and petitioner therefore believes he is entitled to the exemption provided by Sections 1260-1261 of the [West's Ann.] California Civil Code, to-wit, $12,500."
A hearing was later held upon the Trustee's report refusing to set aside appellant's home as a homestead, and upon appellant's objections thereto. At this hearing, appellant testified that he had been married, but that his wife had obtained a divorce in Nevada in 1955 and that that court had, in its decree, awarded the custody of a minor child, Roberta Blagg, to the plaintiff therein and that the decree contained a provision that appellant pay $20 per week to the plaintiff therein for the support of said minor child. The appellant further testified that his wife had left him in December, 1954, and that Roberta had lived with him in Los Angeles until some time in the spring of 1955. It was at this time, shortly after the date of the divorce decree on May 12, 1955, that appellant made arrangements with Roberta's grandmother for Roberta to live with her in Turlock, California (about 300 miles from Los Angeles). He claimed that from June to September, 1955, and from June to September, 1956, his daughter lived at his home in Temple City. In September, 1956, Roberta again went back to her grandmother's home in Turlock, where she attended school and was physically living in December, 1956, when the Declaration of Homestead was filed by appellant. There was further testimony by appellant as to what support he had provided for his minor child while she was at her grandmother's. Appellant admitted that he had never provided as much support as the $20 per week amount contained in the divorce decree, but claimed that he had sent money to the grandmother in indefinite amounts and at times when "they would ask for more money."
At the conclusion of the hearing, the Referee made findings that the minor child resided with her maternal grandmother, that the appellant had not supported or maintained the minor child, that the bankrupt was not the head of a family, and that the Declaration of Homestead claimed by appellant was null, void and of no force and effect.
"1. By any head of a family, of not exceeding twelve thousand five hundred dollars ($12,500) in actual cash value, over and above all liens and encumbrances on the property at the time of any levy of execution thereon.
"2. By any other person, of not exceeding five thousand dollars ($5,000) in actual cash value, over and above all liens and encumbrances. (Enacted 1872. As amended Stats. 1945, c. 789, p. 1477, § 9; Stats. 1947, c. 1077, p. 2482, § 1; Stats. 1949, c. 357, p. 637, § 1; Stats. 1953, c. 943, p. 2319, § 1.)"
"5. Such declaration of homestead may further contain a statement * * *"
"The declaration must contain everything required by the second, third and fourth subdivisions of section 1263, and in addition thereto may contain the statement and affidavit provided for by subdivision 5 of said section, with like effect as therein provided. (Enacted 1872. As amended Stats. 1927, c. 491, p. 829, § 1.)"
The Referee held that there was not sufficient evidence for appellant to qualify as head of a family. We have examined the evidence and believe a finding either way could be sustained as being based upon sufficient evidence. However, the Referee had the advantage of seeing and hearing the appellant and could better determine his credibility. We cannot say the finding of the Referee upon this issue is clearly erroneous. General Order in Bankruptcy No. 47, 11 U.S.C.A. following Section 53. Neece v. Durst, 9 Cir., 1932, 61 F.2d 591; Ott v. Thurston, 9 Cir., 1935, 76 F.2d 368; Hudson v. Wylie, 9 Cir., 1957, 242 F.2d 435.
However, the Referee went further and found the Declaration of Homestead not only invalid because appellant was not the head of a family as defined in the statute, but that it was "null, void and of no force or effect."
Appellant contends that he is at least entitled to a homestead of $5,000 under subdivision 2 of Section 1260.
His declaration contained all of the statements required by Section 1267 to obtain such a homestead. In addition, it contained an additional statement that he was "head of a family," which the Referee found not to be true. We, however, hold that this surplusage did not vitiate the entire declaration, but that as the declaration contained all of the essentials set forth in the Code Section to secure a $5,000 homestead, it was valid to that extent.
"The homestead laws have always been given a most liberal construction in order to advance their beneficial objects and to carry out the manifest purpose of the Legislature."
"Most of these cases have held declarations invalid because of the omission of some one of the matters required by the code to be included in them."
The Court concluded, in Feintech, that the declaration was sufficient to secure to the claimant a valid homestead for one "other than the head of a family."
"The homestead right is not one to be industriously pinched and circumscribed and circumvented and beaten back. If the facts of an honest homestead claim be present, a substantial compliance with statutory provisions about making the claim public should be deemed sufficient."
Johnson v. Brauner, 1955, 131 Cal. App. 2d 713, 281 P.2d 50, upholding a homestead despite a technical defect in the declaration contains a good review of the California homestead cases.
Those cases appearing to require a more strict compliance with the Code are distinguishable, either on the basis of a missing essential in the declaration or a public policy reason not present in the instant case. See, for example, Hansen v. Union Savings Bank, 1905, 148 Cal. 157, 82 P. 768 (essential recital was missing); Rich v. Ervin, 1948, 86 Cal. App. 2d 386, 194 P.2d 809; and Shumaker v. Biscailuz, 1955, 130 Cal. App. 2d 414, 278 P.2d 939 (claimants declaring themselves married when they were not in fact married). In the above cases the declarations were held to invalidate the homesteads.
In the instant case, the appellant first filed a declaration of homestead as one "other than the head of a family." Following advice of counsel, he abandoned the first claim and filed a declaration as the head of a family. Both claims were filed in good faith.
A close factual question results in appellant's not being entitled to the larger exemption afforded to the head of a family. However, finding the case more in accord with Feintech v. Weaver, supra, than with Hansen v. Union Savings Bank, supra, and other cases invalidating homesteads, we hold that the declaration contained all essential recitals of, and entitles appellant to, a homestead exemption of $5,000 under West's Ann.Civ.Code, § 1260, subd. 2.
To the extent that In re Mapes, D.C. S.D. Cal. 1954, 120 F. Supp. 316, is inconsistent with this holding, it is hereby overruled.
"Be It Known that I, Lewis F. Blagg, a single man, hereby declare that I am at the time of the making of this declaration actually residing on the premises hereinafter described and claim them as a homestead.
"All of Lot 61 and the south westerly 10 ft. of Lot 62, Tract 11584, as recorded in Book 213/2 and 3 of Maps, in the office of the County Recorder of Los Angeles County, California, said property formerly being registered land entered on a memorial certificate M.H. 2129.
"Said property consists of a 10-room residence and converted garage located at 11042 West Hondo Parkway, Temple City, California.
"That I estimate the actual cash value of said premises exclusive of the business portion thereof which is located over the Bank at the rear, to be the sum of $30,000.00.
"In Witness Whereof, I hereunto set my hand this 18th day of December, 1956.
"Know All Men By These Presents: That I, Lewis F. Blagg, do hereby declare that I am a single man and I do hereby abandon the homestead heretofore declared on the property and premises hereinafter described, the declaration whereof was recorded on the 18th day of December, 1956, under Document number 2862, in the office of the County Recorder of Los Angeles County, State of California.
"All of Lot 61 and the southwesterly 10 feet of Lot 62, Tract 11584, as recorded in Book 213, Pages 2 and 3 of Maps, in the office of the County Recorder of said county and state, said property formerly being registered land entered on a memorial certificate M.H. 2129.
"In Witness Whereof, I hereunto set my hand this 19th day of December, 1956.
"That I am, at the time of making this declaration, residing on the premises hereinafter described, and that I claim said premises as a homestead.
"The improvements on said real property consist of a 10 room residence and a converted garage, plus a structural steel building 30 feet by 80 feet in area and a steel frame building 25 feet by 50 feet in area. That I estimate the cash value of said land and premises to be the sum of $30,000.00.
"That a prior Declaration of Homestead has been heretofore abandoned by me, by a Declaration of Abandonment.
"1. The husband, when the claimant is a married person.
"(e) An unmarried sister, or any other of the relatives mentioned in this section, who have attained the age of majority, and are unable to take care of or support themselves. (Enacted 1872. As amended Code Am. 1873-74, c. 612, p. 230, § 155; Stats.1893, c. 107, p. 123, § 1; Stats.1921, c. 786, p. 1426, § 1.)"


What Are the Most Common Employment Tax Evasion Schemes?
This blog entry concerns United States v. Home Concrete, 2012 U.S. LEXIS 3274 (2012), a recent Supreme Court case, which held that one’s basis overstatement is not an omission of income for which the extended six-year statute of limitations in IRC § 6501(e) applies.
Generally, when you sell something, you must report the “taxable gain.” The less taxable gain you have, the less taxes you pay. This is because the gain is the “amount realized” (the amount you receive in a sale/exchange) minus your “adjusted basis.” IRC §1001(a). One way people may try to reduce their amount of gain is by overstating their “basis” in the property they sold. Your basis is usually “cost”–the amount you paid for the property, but it can be decreased or increased for various reasons (after the adjustments it’s called your “adjusted basis”). For example, if you depreciate the property, your tax basis goes down and, when you sell the item, you’ll have more taxable gain, more taxes. So, generally, taxpayers desire to have a higher–rather than lower–basis in the property they sell.
What happens, however, in an effort to have less taxable gain, a taxpayer overstates his basis in the property he sold? How long does the government have to prosecute you? The Supreme Court recently made a taxpayer favorable ruling on this question (more on that below).
Statute of limitations: 3 year, 5 year, 6 year, and unlimited.
The statute of limitations in a case varies with what the government seeks to prove you committed. A person may be tried under the Internal Revenue Code (“Title 26″), Title 18, or, in many cases, both.
Title 18 Offenses. The general statute of limitations for a Title 18 offense is 5 years. 18 U.S.C. §3282. After this time, no person may be “prosecuted, tried, or punished.” As mentioned above, often the same conduct may serve as both a basis for a Title 18 violation and a Title 26 violation. In particular, three are noteworthy: the aiding and abetting statute (18 USC §2), the conspiracy statute (18 USC §371), and the false statement statute (18 USC §1001). I mention these in passing and to provide an overview.
Title 26 (IRC) Offenses Generally, under IRC § 6531, the statue of limitations for the government to criminally prosecute someone is 3 years. However, IRC §6531 specifically provides for a 6 year statute of limitations in eight cases, which may be quickly summarized as a conspiracy to (1) defraud or attempt to defraud the United States, or (2) to attempt in any manner to defeat any tax or it payment. IRC §§6531(1), 6532(2). The 6 year limitation period is significant because it covers the most frequently used tax offenses: evasion, failure to file, and making false statements to the government.
It is crucial to realize that these periods only limit the time for the government to prosecute a taxpayer for the crime; if proven guilty, he will still be liable for the tax he evaded–as well as for interest and civil penalties–even if it extends beyond 6 years.
Assessments. A special limitation exists for assessments. Under IRC § 6501(a), the government must make an assessment within a 3 year period. But there are a number of exceptions to this. In particular, one’s filing a fraudulent return, engaging in a willful attempt to evade tax, or failing to file a return results in an unlimited statute of limitations. IRC § 6501(c).
What Statute of Limitations Applies for Basis Overstatement? Now, the question we want to know is: Does overstating your basis fall within the 6 year, 3 year, 5 year, or an unlimited statute of limitations?
Ignoring Title 18 for the moment (which generally has a longer statute of limitations), the government must assess a taxpayer’s deficiency within “3 years after the return was filed.” IRC §6501(a). But, this 3-year period is extended to 6 years when a taxpayer “omits from gross income an amount properly includible therein which is in excess of 25 percent of the amount of gross income stated in the return.” §6501(e)(1)(A). In other words, if you failed to include more than 25% of your actually gross receipts, the government has 6 years to catch you. Does overstating your basis constitute an “omi[ssion] from gross income” for purposes of analyzing the statute of limitations in IRC §6501(e)?
Ordinarily, the Government must assess a deficiency against a taxpayer within “3 years after the return was filed.” 26 U. S. C. §6501(a) (2000 ed.). The 3-year period is extended to 6 years, however, when a taxpayer “omits from gross income an amount properly includible therein which is in excess of 25 percent of the amount of gross income stated in the return.” §6501(e)(1)(A). The question before us is whether this latter provision applies (and extends the ordinary 3-year limitations period) when the taxpayer overstates his basis in property that he has sold, thereby understating the gain that he received from its sale. Following Colony, Inc. v. Commissioner, 357 U. S. 28 (1958), we hold that the provision does not apply to an overstatement of basis. Hence the 6-year period does not apply.
Tax evasion defined. Recall that tax fraud is the willful attempt in any manner to evade or defeat tax or the payment of such tax. It is punishable by a fine of up to $100,000 in the case of individuals (and up to $500,000 in the case of corporations) or imprisonment up to five years, or both, plus the costs of prosecution. It is also described as a felony in IRC § 7201 (See, e.g., http://www.law.cornell.edu/uscode/text/26/7201).
Two take-away lessons. The take-away lesson from all this is two-fold. First, it not clearly impossible for the IRS to bring a fraud claim–and thus may avail itself of the unlimited statute of limitations–for overstatement of basis. Furthermore, as mentioned, the above case did not answer the question: “What statute of limitations is appropriate for a basis overstatement in violation of Title 18?” Thus, it is wide open to the government to challenge basis overstatement offenses under different legal theories, thus extending the time period it may come after you.
Second, remember the limited holding of the case. Even after the 3 year mark, even though a taxpayer may not be prosecuted for the crime, he may still be liable for the tax he evaded–as well as for interest and civil penalties.
These are tricky issues. If you know someone who has overstated the basis in his property in a sale or transaction (thereby reducing his taxable gain), he may be liable. To help minimize his liability exposure, and to have the best chance at avoiding tax fraud status, he should retain competent legal counsel from a tax attorney. We’d love to help.


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FindACase | In re Parental Rights To K.J.B.
In re Parental Rights To K.J.B.
STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.
In 2013, the legislature amended the statute governing termination of parental rights. The legislature provided that "[i]f the parent is incarcerated, the court shall consider" a set of factors before determining that "continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home." RCW 13.34.180(1)(f) (emphasis added). Petitioner J.B. argues that his parental rights cannot be terminated without express written findings of fact on these incarcerated parent factors. We hold that while explicit findings on the incarcerated parent factors are not statutorily required, consideration of the factors is mandatory. Because the trial court failed to consider the incarcerated parent factors in this case, we reverse and remand the case to the trial court for consideration of the incarcerated parent factors.
J.B. is the biological father of KJ.B. KJ.B. was born on April 20, 2012 and was immediately removed from her mother's care because of her mother's prenatal methamphetamine use. KJ.B. was initially placed in relative care. At one month old, KJ.B. was moved to a foster care family, where she currently resides. Her mother has already relinquished her parental rights and is not a party to this proceeding. KJ.B, has never lived with her biological mother or father.
J.B. has struggled with drug addiction since his adolescence. In October 2012, the court entered a dependency order requiring J.B. to complete a drug/alcohol evaluation and treatment, random urinalysis testing, and a parenting assessment and instruction. J.B. completed a parenting assessment and participated in parenting instruction. He started several drug treatment programs but never completed any. In the findings of fact, the trial judge noted, "The father has a very serious drug addiction." Clerk's Papers (CP) at 19 (Findings of Fact (FF) 1.11). He "has not been able to demonstrate sobriety for any significant period of time, despite being provide[d] ample time and opportunity to do so." FF 1.20. "His substance abuse addiction prevents him from parenting his child." FF 1.22. "The father has demonstrated that he is incapable of providing or unwilling to provide a safe, healthy and stable environment for [K.J.B.] due to his continued substance abuse addiction and inability to complete treatment." FF 1.24. In his oral ruling, the judge stated, "I find that your use of methamphetamine has prevented you from providing care for this child for extended periods of time and you have a documented unwillingness, and that's a difficult word to use for you, [J.B.], but a documented unwillingness to receive and complete treatment or documented multiple failed treatments . . . ." 2 Verbatim Report of Proceedings (VRP) at 249.
J.B. participated in visits with K.J.B. in January 2013 and more regularly visited with her from March 2013 to January 2014. One parenting professional testified that J.B. was nurturing and loving toward K.J.B. and that he showed compassion and sensitivity. However, the trial judge found that "[t]he father's parental deficiencies have not been corrected." FF 1, 10.
In January 2014, J.B. was found guilty of first degree unlawful possession of a firearm and possession of a stolen firearm. He was sentenced to 74 months of incarceration.
At the time of the termination hearing, J.B. had been incarcerated for less than 52 days. In considering the termination of J.B.'s parental rights, the trial court apparently applied outdated statutory language in framing its analysis. Specifically, the court applied RCW 13.34.180(1)(f) without mentioning its 2013 amendments requiring courts to consider additional factors relevant to incarcerated parents. Without expressly considering these factors set forth in RCW 13.34.180(1)(f), the trial court terminated J.B.'s parental rights.
J.B. appealed. The Court of Appeals acknowledged "the trial court's failure to weigh the required considerations" but ruled that it was harmless error that did not require reversal. In re Parental Rights to K.J.B., 188 Wn.App. 263, 285, 354 P.3d 879 (2015). J.B. appealed, and we accepted review.
We review matters of statutory interpretation de novo. O.S.T. v. Regence Blue Shield, 181 Wn.2d 691, 696, ¶ 8, 335 P.3d 416 (2014).
Our fundamental goal in statutory interpretation is to "discern and implement the legislature's intent." State v. Armendariz, 160 Wn.2d 106, 110, ¶ 7, 156 P.3d 201 (2007). Where "the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent." Dep 't of Ecology v. Campbell v. Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). We discern plain meaning "from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question." Id. at 11. "[I]f, after this inquiry, the statute remains susceptible to more than one reasonable meaning, the statute is ambiguous and it is appropriate to resort to aids to construction, including legislative history." Id. at 12. Plain language that is not ambiguous does not require construction. State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013).
The paramount goal of child welfare legislation is to reunite the child with the legal parents if reasonably possible. In re Dependency of J.H., 117 Wn.2d 460, 476, 815 P.2d 1380 (1991); In re Custody of C.C.M., 149 Wn.App. 184, 202 P.3d 971 (2009). Parents have a fundamental liberty and property interest in the care and custody of their children. U.S. Const, amends. V, XIV; Wash. Const, art. I, § 3; Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). "The due process clause of the Fourteenth Amendment protects a parent's right to the custody, care, and companionship of [his or] her children." In re Welfare of Key, 119 Wn.2d 600, 609, 836 P.2d 200 (1992) (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)). Due process requires a court to find the parent to be currently unfit before the parent-child relationship may be terminated.
In order to deem a parent unfit and thus terminate the parent-child relationship, the State must satisfy a two-pronged test. In re Dependency of K.N J., 171 Wn.2d 568, 576, ¶ 15, 257 P.3d 522 (2011). The first prong focuses on the adequacy of the parent and requires the State to establish six elements, outlined in RCW 13.34.180(1). "Each of the six statutory elements must be proved by clear, cogent, and convincing evidence before the State may terminate parental rights." K.N.J., 171 Wn.2d at 576-77 (citing In re Welfare of C.S., 168 Wn.2d 51, 55, ¶ 7, 225 F.3d 953 (2010)); RCW 13.34.180(1). If the six statutory elements of subsection (1) are established, then the parent has been implicitly found to be an unfit parent. K.N J., 171 Wn.2d at 577, ¶ 15 (citing In re Dependency of K.R., 128 Wn.2d 129, 141-42, 904 P.2d 1132 (1995)).
The second prong that the State must prove focuses on the child's best interests. RCW 13.34.190. Only if the first prong is satisfied may the court reach the second. In re Interest of S.G., 140 Wn.App. 461, 470, ¶ 26, 166 P.3d 802 (2007); In re Welfare of C.B., 134 Wn.App. 942, 952, ¶ 21, 143 P.3d 846 (2006).
The legislature recently recognized that statutory dependency/termination requirements and timelines often undermine the efforts of incarcerated parents to be reunited with their children. In 2013, this recognition led to Substitute House Bill (SHB) 1284, titled "AN ACT Relating to the rights of parents who are incarcerated." Substitute H.B. 1284, 63d Leg., Reg. Sess. (Wash. 2013). SHB 1284 amended several statutes in the Juvenile Court Act, effective July 2013. Id. (amending RCW 13.34.067, 136, and 145 and reenacting and amending .180). The primary sponsor of SHB 1284 testified that its intent was to provide added protection for incarcerated parents facing termination of their parental rights. Hr'g on H.B. 1284 Before the H. Early Learning & Human Servs. Comm., 63d Leg., Reg. Sess. (Wash. Feb. 5, 2013) (testimony of Representative Mary Helen Roberts), audio recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org.
[(3.)] whether particular barriers existed as described in RCW 13.34.145(5)(b) including, but not limited to, delays or barriers experienced in keeping the agency apprised of his or her location and in accessing visitation or other meaningful contact with the child.
Substitute H.B. 1284, at 13-14 (emphasis added).

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We are convinced that food can be pure heaven! Fresh. Organic. Regional.
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Section 800.3. Initiation of the section 106 process.
36 CFR § 800.3 - Initiation of the section 106 process.
§ 800.3 Initiation of the section 106 process.
(a)Establish undertaking. The agency official shall determine whether the proposed Federal action is an undertaking as defined in § 800.16(y) and, if so, whether it is a type of activity that has the potential to cause effects on historic properties.
(1)No potential to cause effects. If the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency official has no further obligations under section 106 or this part.
(2)Program alternatives. If the review of the undertaking is governed by a Federal agency program alternative established under § 800.14 or a programmatic agreement in existence before January 11, 2001, the agency official shall follow the program alternative.
(b)Coordinate with other reviews. The agency official should coordinate the steps of the section 106 process, as appropriate, with the overall planning schedule for the undertaking and with any reviews required under other authorities such as the National Environmental Policy Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, the Archeological Resources Protection Act, and agency-specific legislation, such as section 4(f) of the Department of Transportation Act. Where consistent with the procedures in this subpart, the agency official may use information developed for other reviews under Federal, State, or tribal law to meet the requirements of section 106.
(c)Identify the appropriate SHPO and/or THPO. As part of its initial planning, the agency official shall determine the appropriate SHPO or SHPOs to be involved in the section 106 process. The agency official shall also determine whether the undertaking may occur on or affect historic properties on any tribal lands and, if so, whether a THPO has assumed the duties of the SHPO. The agency official shall then initiate consultation with the appropriate officer or officers.
(1)Tribal assumption of SHPO responsibilities. Where an Indian tribe has assumed the section 106 responsibilities of the SHPO on tribal lands pursuant to section 101(d)(2) of the act, consultation for undertakings occurring on tribal land or for effects on tribal land is with the THPO for the Indian tribe in lieu of the SHPO. Section 101(d)(2)(D)(iii) of the act authorizes owners of properties on tribal lands which are neither owned by a member of the tribe nor held in trust by the Secretary for the benefit of the tribe to request the SHPO to participate in the section 106 process in addition to the THPO.
(2)Undertakings involving more than one State. If more than one State is involved in an undertaking, the involved SHPOs may agree to designate a lead SHPO to act on their behalf in the section 106 process, including taking actions that would conclude the section 106 process under this subpart.
(3)Conducting consultation. The agency official should consult with the SHPO/THPO in a manner appropriate to the agency planning process for the undertaking and to the nature of the undertaking and its effects on historic properties.
(4)Failure of the SHPO/THPO to respond. If the SHPO/THPO fails to respond within 30 days of receipt of a request for review of a finding or determination, the agency official may either proceed to the next step in the process based on the finding or determination or consult with the Council in lieu of the SHPO/THPO. If the SHPO/THPO re-enters the Section 106 process, the agency official shall continue the consultation without being required to reconsider previous findings or determinations.
(d)Consultation on tribal lands. Where the Indian tribe has not assumed the responsibilities of the SHPO on tribal lands, consultation with the Indian tribe regarding undertakings occurring on such tribe's lands or effects on such tribal lands shall be in addition to and on the same basis as consultation with the SHPO. If the SHPO has withdrawn from the process, the agency official may complete the section 106 process with the Indian tribe and the Council, as appropriate. An Indian tribe may enter into an agreement with a SHPO or SHPOs specifying the SHPO's participation in the section 106 process for undertakings occurring on or affecting historic properties on tribal lands.
(e)Plan to involve the public. In consultation with the SHPO/THPO, the agency official shall plan for involving the public in the section 106 process. The agency official shall identify the appropriate points for seeking public input and for notifying the public of proposed actions, consistent with § 800.2(d).
(f)Identify other consulting parties. In consultation with the SHPO/THPO, the agency official shall identify any other parties entitled to be consulting parties and invite them to participate as such in the section 106 process. The agency official may invite others to participate as consulting parties as the section 106 process moves forward.
(1)Involving local governments and applicants. The agency official shall invite any local governments or applicants that are entitled to be consulting parties under § 800.2(c).
(2)Involving Indian tribes and Native Hawaiian organizations. The agency official shall make a reasonable and good faith effort to identify any Indian tribes or Native Hawaiian organizations that might attach religious and cultural significance to historic properties in the area of potential effects and invite them to be consulting parties. Such Indian tribe or Native Hawaiian organization that requests in writing to be a consulting party shall be one.
(3)Requests to be consulting parties. The agency official shall consider all written requests of individuals and organizations to participate as consulting parties and, in consultation with the SHPO/THPO and any Indian tribe upon whose tribal lands an undertaking occurs or affects historic properties, determine which should be consulting parties.
(g)Expediting consultation. A consultation by the agency official with the SHPO/THPO and other consulting parties may address multiple steps in §§ 800.3 through 800.6 where the agency official and the SHPO/THPO agree it is appropriate as long as the consulting parties and the public have an adequate opportunity to express their views as provided in § 800.2(d).


§ 1204. State Investments Committee.
§ 1205. Purchase of interest in a business enterprise.
§ 1206. Selling of interest in a business enterprise.
§ 1207. Evidence of ownership.
§ 1208. Appointment of members of the board of directors.
§ 1209. Conflict of interest; Removal of members of the board of directors.
§ 1210. Access to books and records.
§ 1211. Profits and other distributions.
§ 1213. Voting of shares.
This Act Chapter shall be known and may be cited as the "State Investments Act of 1996."
Source: CSL 3-95-28, § 1, modified.
Editor's note: CSL 3-95-28 that created this Chapter was signed into law by the Governor on December 12, 1996.
The purpose of this act Chapter is to establish controls over the investment of State funds in business enterprises, to provide Legislative input into the selection of representatives of the State on the boards and governing bodies of such enterprises, to ensure that the State Government is adequately informed about the results of state investments, and to enable state officials to determine whether State investments in business enterprises are accomplishing their intended goals.
Source: CSL 3-95-28, § 2.
(a) (1) "Board of directors" means the board of directors, managing committee, or any other board, committee, formal group or entity which manages or controls a business enterprise.
(c) (2) "Business enterprise" means any business corporation, whether incorporated under the laws of the Federated States of Micronesia or any other jurisdiction; partnership, joint venture, or any other business entity, whether owned and/or controlled by private or public investors, or a combination thereof.
(b) (3) "Personal financial interest" means ownership of five percent or more of the total equity, with voting rights, of a business enterprise, by a person alone, by a person. s immediate family, parents, siblings, or parents or siblings of his spouse, or any combination thereof, or by a person and any combination of the person's immediate family, parents, siblings, or parents or siblings of his spouse.
(e) (4) "Shares" means shares of stock, a partnership interest, an interest in a joint venture, or any other equity interest in a business enterprise.
(2) (b) loan money to a business enterprise.
Source: CSL 3-95-28, § 3, terms put into alphabetical order and renumbered accordingly, Section modified.
There shall be a State Investments Committee, composed of five members, three 3 appointed by the Governor with the advice and consent of the Senate, and two 2 by joint appointment of the President and the Speaker of the Chuuk State Legislature. The Governor shall call and preside at the organizational meeting until a permanent chairman is elected. He shall call the meeting within 30 days of the appointment and confirmation of the members.
Source: CSL 3-95-28, § 4.
The State may, upon recommendation by the State Investments Committee and appropriation duly enacted, make an investment in a business enterprise when such investment is likely to have the effect of encouraging economic development in the State of Chuuk, providing necessary services to the government or the public, or being in the best interests of the people of Chuuk State. The contract of purchase shall be executed on behalf of the State by any three or more members of the State Investments Committee, after approval as to form by the Attorney General.
Source: CSL 3-95-28, § 5.
The State may, upon recommendation by the State Investments Committee, or as provided by duly enacted law, sell its interest in a business enterprise as follows: The State shall advertise on the local radio station, and publish in a local newspaper or any newspaper accessible to the legal residents of Chuuk State, 90 days before the sale, for the sale of its interests, shares of stock, or assets in the business enterprise, and shall protect the equal opportunity of its citizens and municipal governments to purchase such interests or stock from the State Government at a fair and reasonable market price. The sale shall be to the highest responsible bidder. No such sale, or contract of sale shall become effective or be valid until after approval by joint resolution of the Legislature.
Source: CSL 3-95-28, § 6.
When the State makes a State investment in a business enterprise, the Governor shall cause the shares of stock, certificates of partnership, or other evidence of ownership to be issued in the name of the State of Chuuk. The evidence of ownership shall be filed for safekeeping at the Governor's Office with certified copies at the Legislature and the State Court under secure conditions. The Governor shall direct the business enterprise to reflect ownership by the State of Chuuk on the books and records of the enterprise, with copies furnished to the State.
Source: CSL 3-95-28, § 7.
§ 1208. Appointment of members of board of directors.
Whenever, as a result of a state investment, the State becomes entitled to name, appoint or elect one or more members of the board of directors of a business enterprise, such members shall be appointed by the Governor, with the advice and consent of the Senate. Such members of the board shall serve for the term of office as specified in the bylaws or other organizational documents of the business enterprise, unless removed pursuant to provisions of the bylaws or of this Act Chapter, and shall act in the best interests of all of the people of Chuuk, when voting as a member of the board, or otherwise acting in the capacity of a member of the board of directors.
Source: CSL 3-95-28, § 8, modified.
§ 1209. Conflict of interest; removal of members of board of directors.
(a) (1) No person shall serve as a State member of a board of directors under this Act Chapter if that person has a financial interest in the business enterprise. In the event that a personal financial interest on the part of a State member appointed under this act Chapter arises after his appointment to a board of directors, he shall immediately resign or be removed.
(b) (2) A public member of the board of directors of a business enterprise with a state investment may be removed, for cause, by joint resolution of the State Legislature. "Cause" shall include, but not be limited to, failure to represent the best interests of Chuuk State. The existence of cause shall be determined solely by the Legislature.
Source: CSL 3-95-28, § 9, modified.
The Governor, President of the Senate, Speaker of the House, or their respective designees, shall each have access to the books and records of the business enterprise to the same extent as a comparable private investor has, under such conditions of confidentiality as may be appropriate in each case.
Source: CSL 3-95-28, § 10.
All payments made by a business enterprise on account of the State. s ownership or creditor interest, whether in the form of profits, principal, and interest, or other distributions, shall be made payable to the State of Chuuk as payee, and shall be deposited in the General Fund of the State, unless otherwise provided by law.
Source: CSL 3-95-28, § 11.
(a) (1) Any business enterprise which receives a State investment under this act Chapter shall make financial reports at least quarterly, according to generally accepted accounting principles, including an audited annual financial report signed by a certified state accountant. Any such business enterprise shall allow the duly authorized representative of the State Investments Committee and/or the Legislature to examine the financial and other records of the business enterprise, at reasonable times during business hours. Any contract for a State investment entered into after the effective date of this Act Chapter shall be deemed to include a provision requiring such reports and examinations. Copies of such reports shall be provided to the members of the State Investments Committee, and an additional two copies shall be provided to the Legislature. Failure to provide such reports or to allow such examinations shall be deemed a violation of the State's ownership or creditor interest, and a breach of the contract of purchase. In such event, the State members of the board of directors shall take every action possible to cause the business enterprise to make and provide such reports.
(b) (2) Contracts for State investments existing on the effective date of this Act Chapter, including but not limited to, partnership agreements, agreements for the purchase of shares of corporations, shareholder agreements, and the charter, bylaws or other organizing documents of any such entity shall, to the extent allowable under Article III, Section 10 of the Constitution of the State of Chuuk, be deemed to include a provision requiring the reports and examinations required by this Section. Furthermore, any existing right of the State on the effective date of this Act Chapter to obtain financial reports, or to examine the financial or other records of any business enterprise, shall be construed to mean that the State Investments Committee and/or the Legislature shall have the right to receive copies of the reports, and their duly appointed representatives shall have the right to examine the records. In the event that the business enterprise refuses to deliver copies of the reports to the State Investments Committee, and/or to the Legislature, or to allow examination of the records, the Committee shall have the authority to file an action to compel delivery of the reports and examination of the records; and the Legislature shall have the power to subpoena the reports from the business enterprise or from the Executive Branch of the Chuuk State Government, or to file an action to compel delivery of the reports and examination of the records.
Source: CSL 3-95-28, § 12, modified.
Any shares of the state with voting rights shall be voted as follows: upon receipt of the proxy statement or other information from a business enterprise with a public investment, concerning a shareholder or other owners. meeting, the Chairman shall call a meeting of the State Investments Committee, which shall consider the issues to be voted on. The Committee shall determine how the State's shares are to be voted by a majority vote of all of the members of the Committee, and the shares shall be voted in that manner.
Source: CSL 3-95-28, § 13.
If any provision of this Act Chapter, or the application thereof to any person or circumstance, is held invalid, this invalidity does not effect other provisions or applications of the Act Chapter which can be given effect without the invalid provision or application, and to this end, the provisions of this Act Chapter are severable.
Source: CSL 3-95-28, § 14, modified.


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The court holds that the U.S. Department of Agriculture (USDA) violated Endangered Species Act (ESA) §7(a)(1) by failing to consult with the U.S. Fish and Wildlife Service (FWS) in carrying out endangered species conservation programs at the Edwards Aquifer in Texas. The court first holds that an environmental group has standing to pursue this action. The environmental group alleged and set forth uncontradicted summary judgment evidence that the Edwards-dependent species were at substantial, imminent risk of jeopardy. As USDA itself admits, this constitutes a judicially cognizable injury under the ESA. Regarding causation, USDA's claim that it has no effect on the irrigation decision of the farmers is unpersuasive. The evidence introduced clearly shows that USDA's failure to adopt various incentive programs that would affect the pumping decisions of thirdparty farmers is fairly traceable to the injury to the Edwards-dependent species. In addition, the procedures of ESA §7(a)(1) were designed to protect the environmental group's threatened concrete interest in this case.
The court next holds that ESA's citizen suit provision supports the environmental group's cause of action under §7(a)(1). The ESA's citizen suit provision can be used to challenge the failure of a federal agency to follow the affirmative requirements of §7(a)(1). The court also holds that its cause of action could be brought under the Administrative Procedure Act (APA). Given the specific requirements of §7(a)(1), in any given case there is more than enough law against which a court can measure agency compliance. Furthermore, USDA's duties under §7(a)(1) are judicially reviewable even though it has a substantial amount of discretion in developing programs for the benefit of the Edwards-dependent species. The court then rejects USDA's argument that it has complied with the requirements of §7(a)(1) because the Edwards-dependent species have experienced incidental benefits from national USDA programs designed and carried out for other purposes.
The court further holds that USDA's appeal with respect to the ESA §7(a)(2) claim that it breached its duties by making payments under the 1996 Federal Agriculture Improvement and Reform Act without engaging in formal consultation with FWS or otherwise ensuring that these payments would not cause jeopardy to Edwards-dependent species is moot. By submitting a biological evaluation to FWS, USDA clearly fulfilled whatever obligations it had as a result of the district court's order to complete informal consultation. In addition, because FWS concurred in USDA's conclusion, formal consultation is not required. Thus, there is no relief that can be obtained from this court. Last, the court reverses the judgment of the district court with respect to the alleged violations of the Agriculture and Water Policy Coordination Act, related provisions that establish a USDA Council on Environmental Quality, and the Bankhead-Jones Farm Tenant Act and rendered judgment on those claims in favor of USDA. The environmental group does not have standing to bring these claims because it set forth nothing more than a generalized grievance.
Before Wiener and Garza, JJ.

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Submitted by Michele L. Jacobson, Esq., Andrew S. Lewner, Esq.
In Life Receivables Trust v. Syndicate 102, the United States Court of Appeals for the Second Circuit held that Section 7 of the Federal Arbitration Act (the “F.A.A.”), does not empower arbitrators to issue pre-hearing document subpoenas to entities not parties to the arbitration proceeding. This decision reversed the prior order of the United States District Court for the Southern District of New York, which upheld a document subpoena issued by an arbitration panel to a non-party.
Peachtree Life Settlements (“Peachtree”) was in the business of purchasing life insurance policies from elderly insureds. Life Receivables Trust v. Syndicate 102, 549 F.3d 210, 212 (2d Cir. 2008). Peachtree would pay the insureds a lump-sum payment in an amount less than the face value of the policy, and would then continue to make the necessary premium payments under the policy until the insured passed away, at which time Peachtree would collect the face value amount of the policy. Id.
Aside from purchasing policies for itself, Peachtree purchased policies for several related entities, including Life Receivables Trust (the “Trust”). The Trust was a special purpose vehicle formed for the sole purpose of holding such policies. Id. When purchasing policies for itself and for the Trust, Peachtree based the amount that it was willing to pay upon its own actuarial estimation of the projected life of the insured. Id. As a hedge against the possibility of the insured exceeding his/her projected life span, Peachtree purchased contingent cost insurance from Syndicate 102 on behalf of the Trust. Id. Under this contingent cost insurance, if the insured lived for more than two years beyond his/her life expectancy, Syndicate 102 would pay the Trust the full death benefit under the life insurance policy, and would assume the policy for itself. Significantly, each contingent cost insurance policy was signed by Syndicate 102 as the underwriter, the Trust as the insured and Peachtree as the originator and servicer. Id.
The contingent cost insurance policies each contained an express arbitration clause which, in relevant part, provided that “[a]ll disputes and differences arising under or in connection with this Insurance shall be referred to arbitration under the American Arbitration Association Rules.” Id. at 213. The arbitration clause further provided that “[t]he Arbitration Tribunal may in its sole discretion make such orders and directions as it considers to be necessary for the final determination of the matters in dispute . . . [and the] Arbitration Tribunal shall have the widest discretion permitted under the law governing the arbitration procedure when making such orders or directions.” Id.
The two policies at issue in the litigation applied to life insurance policies purchased by Peachtree for the benefit of the Trust covering the life of an insured named Mr. Wang (the “Wang Policies”). Ultimately, Mr. Wang outlived his calculated life expectancy by more than two years, thereby triggering Syndicate 102’s obligation to pay the Trust the full death benefit under the Wang Policies and assume those policies. Id. Syndicate 102 refused to honor its obligations, and the Trust commenced arbitration. Syndicate 102 defended its refusal to make payment under Wang Policies because the Trust had allegedly fraudulently misrepresented the date on which the Wang Policies had been purchased and had fraudulently calculated Mr. Wang’s life expectancy. Id.
During the course of the arbitration, Syndicate 102 propounded requests for the production of documents upon both the Trust and Peachtree. While the Trust agreed to produce documents in its possession, it objected to the production of Peachtree documents on the grounds that the Trust did not control Peachtree. Upon Syndicate 102’s request, the arbitration panel ordered the Trust to produce all responsive documents relating to Peachtree. When the Trust objected on the grounds that Peachtree had not supplied the requested documents to the Trust, the panel issued a subsequent order requiring the Trust to obtain the requested documents from Peachtree.
Peachtree subsequently informed the Trust that since it was not a party to the arbitration, the arbitration panel had no authority to order it to produce documents, and, hence, Peachtree refused to comply with the arbitration panel’s directive. In response, and at Syndicate 102’s further request, the arbitration panel issued a subpoena requiring Peachtree to produce its responsive documents. After receiving the arbitration panel’s subpoena (issued in December 2006), in January 2007, Peachtree filed suit in the District Court for the Southern District of New York seeking to quash the arbitration panel’s subpoena. Syndicate 102 cross-moved to compel Peachtree to comply with the panel’s subpoena. After a hearing, the district court granted Syndicate 102’s motion to compel, holding that there was “no reason to disturb the arbitration panel’s issuance of such a subpoena to an entity that, while not a party to the specific arbitration at issue, is a party to the arbitration agreement.” Peachtree appealed the district court’s decision.
The arbitrators selected either as prescribed in this title or otherwise, or a majority of them, may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed to be material as evidence in the case.
9 U.S.C. § 7. Despite this language, the Court noted that a Circuit split had developed as to whether Section 7 might properly be invoked by an arbitration panel as authority to compel pre-hearing document discovery from non-parties to the arbitration.
Before reaching its decision, the Court reviewed the current state of divergent authority on this issue. Specifically, the Court first discussed the Eighth Circuit’s holding in In Re Arbitration Between Sec. Life Ins. Co. of Am., in which the Court there held that “although the statute does not explicitly authorize the arbitration panel to require the production of documents for inspection by a party . . . implicit in an arbitration panel’s power to subpoena relevant documents for production at a hearing is the power to order the production of relevant documents for review by a party prior to the hearing.” 228 F.3d at 870-71. The Court noted that the Eighth Circuit’s view had been followed by several courts within the Second Circuit. See Atmel Corp. v. LM Ericsson Telephone, AB, 372 F.Supp.2d 402, 403 (S.D.N.Y. 2003); Integrity Ins. Co. v. Am. Centennial Ins. Co.¸ 885 F.Supp. 69, 71 (S.D.N.Y. 1995).
The Court also noted that the Fourth Circuit has held that while arbitration panels do not have the “authority to order non-parties to . . . provide the litigating parties with documents during prehearing discovery,” an exception existed under which a panel is permitted to issue such a subpoena, but only “upon a showing of special need or hardship.” COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269, 275 (4th Cir. 1999).
Finally, the Second Circuit discussed at length the recent Third Circuit decision in which that Court held that under Section 7 of the F.A.A., an arbitration panel did not have the authority to issue document subpoenas to non-parties to the arbitration. See Hay Group, Inc. v. E.B.S. Acquisitions Corp., 360 F.3d 404, 407 (3d Cir. 2004.). In Hay, then-Judge Alito wrote that the plain language of Section 7 “unambiguously restricts an arbitrator’s subpoena power to situations in which the non-party has been called to appear in the physical presence of the arbitrator and to hand over documents at that time.” Id. at 407. In Hay, the Third Circuit explained that Section 7 of the F.A.A. was based in large part upon Rule 45 of the Federal Rules of Civil Procedure. At the time that section 7 was drafted, Rule 45 did not permit federal courts to issue document subpoenas to non-parties. While Rule 45 has subsequently been amended to grant federal courts the authority to issue such discovery subpoenas upon non-parties, Section 7 of the F.A.A. has not been amended. Id. at 407-09. Following the reasoning set forth in Hay, the Second Circuit held that arbitration panels do not have the authority to issue document subpoenas to non-parties. As the Court explained, “[t]he language of Section 7 is straightforward and unambiguous. Documents are only discoverable in arbitration when brought before arbitrators by a testifying witness.” Life Receivables Trust, 549 F.3d at 216. In fact, the Court reasoned that the amendment of Rule 45 of the Federal Rules of Civil Procedure to permit federal courts to subpoena documents from non-parties demonstrated “that if Congress wants to expand arbitral subpoena authority, it is fully capable of doing so.” Id.
In holding that arbitration panels do not have the authority under Section 7 of the F.A.A. to issue document subpoenas to non-parties, the Court also rejected the argument that the panel should have authority over Peachtree because Peachtree was a closely related entity to the Trust. As the Court explained, “Section 7 contains no discovery exception for closely related entities.” Id. at 217.
While this opinion does limit the ability of arbitration panels to compel the production of documents from non-parties, as the Court noted, the rule set forth therein “does not leave arbitrators powerless to order production of [third party] documents.” Id. at 218. Indeed, the Court explained that, consistent with its holding, an arbitration panel could still order a non-party to produce documents so long as that non-party does so as a witness at a hearing. In fact, the Court explained that the requirement that the documents be produced at a hearing does not even mandate that the hearing be a “merits hearing.” Rather, the Court noted that a third-party could even be compelled to appear at a preliminary hearing to produce documents, or could be compelled to appear before a single arbitrator to make its production. Id.
One final note on the significance of this opinion is that the Second Circuit’s holding appears to be the majority rule. In fact, in reaching its decision, the Court noted that at least one commentator has called the Hay decision, upon which the Second Circuit based its decision, the “emerging rule.” Id. at 216.

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