This is the text of the case Kushell v. DNR, from the Court of Appeals of Maryland. Mr. Kushell was Mr. Lochner's client and the case was handled by one of the attorneys in his firm.
In this case we consider whether Maryland tax liability under § 8-716(c)(1)(iv) of the State Boat Act for "[t]he possession within the State of a vessel purchased outside the State to be used principally in the State" requires that the out-of-state purchase have been made with an intent to use th e vessel principally in Maryland. We find that the plain language of the statute requires this result. Both parties to this appeal agree that appellant Charles Kushell did not intend, at the time of purchase, to principally use his vessel in Maryland. We shall reverse the Circuit Court's order upholding a tax assessment against Kushell.
The Genesis is a 58-foot Spindrift Motoryacht. The vessel is documented by the U.S. Coast Guard, and bears USCG Document Number 684088.
Mr. Kushell purchased the Genesis in 1989 for use as [a] residence in California at a time when he was employed and living in California. The Genesis remained in California between purchase and 1996.
The vessel was purchased outside of Maryland.
At the time that it was purchased, the vessel was not intended to be used principally in Maryland.
Mr. Kushell paid personal property taxes on the vessel to the State of California between 1989 and 1999.
In 1996, the vessel was moved from the Pacific Ocean to the Atlantic Ocean, and after 1996 was used during most of the year in Florida and Man O' War Cay, Abacos, Bahamas.
The vessel was in Maryland for the first time for approximately a month during the fall of 1996.
The vessel returned to Maryland for the summer months of 1997, and for suc cessive years thereafter.
Mr. Kushell registered an inf latable dinghy with a small outboard motor in Maryland in 1997.
The inflatable dinghy was kept during 1997 on a rack at Mears Marina in Annapolis, Maryland.
The Genesis was never used for a greater percentage of time in Maryland during any calendar year than it was used outside of Maryland.
During calendar year 2001, the vessel was in use in Maryland waters for a period of 17 1 days. The vessel was in Maryland from May 21, 2001 until November 7, 2001.
During calendar year 2001, the vessel was in use out of the State of Maryland and out of the United States and its territories, for a period of 189 days. The vessel was in Man of War [Cay], Abacos, Bahamas from January 1, 2001, to May 16, 2001 and November 12, 2001 to December 31, 2001.
During the year 2001, the vessel was not used in any other state of the United States more than it was used in Maryland.
used in Maryland fo r less than six months of a ny given year.
The application of the definition of "State of Principal Use", as employed by the DNR Boat Tax Enforcement Unit, has never been for a period of time of 6 months more or less. Instead, the application of "State of Principal Use" has always been for the period of time where the boat is most used in a state in a calendar year.
Mr. Kushell examined the DNR website, and found it confirmed his understanding that he did not owe tax so long as he had the boat out of Maryland the majority of the year.
At all times relevant, including the present, the DNR web site contains the following text: "What is meant by 'used principally in Maryland?' A vessel is considered used principally in Maryland if it is in Maryland the greatest percentage of time in a given calendar year."
The definitions used for internal training by the Department of Natural Resources Division of Licensing define State of Principal Use as "the state or jurisdiction in which a vessel is spend the greates percentage of time in a calendar year."
In DNR internal training, the definition of State of Principal Use is me rely a starting point in the training of personnel.
Mr. Kushell relied on the DNR representative's statement, and the statement on the website, in d eciding to keep his boat in Maryland for 171 days in calendar year 2001.
Had Mr. Kushell known that he could be responsible for the tax if the boat was only used in Maryland, and no other state of the United States, he would have registered the boat in Florida and kept it in that state for part of the year.
At the end of the calendar year 2001, Mr. Kushell was assessed excise tax, penalties and interest in the total amount of $14,304.54. He paid this amount in full on October 3, 2002, while reserving his right to challenge whether the tax was due.
Kushell appealed the tax assessment to the Office of Administrative Hearings ("OAH"), and OAH held a hearing pursuant to § 8-716.2(e). The ALJ ruled that Kushell was liable for the tax, rejecting Kushell's contention that imposition of tax under § 8--5-716(c)(1)(iv) required that an owner have purchased his vessel with the intent to use it principally in Maryland. He also rejected Kushell's contention that DNR should be equitably estopped, based on the statements of its website and personnel, from collecting the tax. He rejected Kushell's contention th at a vessel must spend six months in Maryland in order to be "used principally" in this State. The ALJ further rejected Kushell's arguments that § 8-716(c)(1)(iv) was unconstitutional, either for vagueness or as a duty on tonnage proscribed by U.S. Const. art. I, § 10, cl. 3. The Secretary of Natural Resources adopted the entire proposed decision of the ALJ. Kushell filed in the Circuit Court for Anne Arundel County a petition for judicial review. The Circuit Court affirmed the agency decision, hold ing that the ALJ had construed § 8-716(c)(1)(iv) correctly in finding no requirement of intent. The court held that the ALJ had ruled correctly with respect to estoppel, and further found that the explanation of "used principally" on DNR's website was not misleading. The Circuit Court also agreed with the ALJ�s analysis of Kushell's Constitutional arguments. Kushell noted a timely appeal to the Court of Special Appeals. We issued a Writ of Certiorari on our own initiative before consideration by that court. Kushell v. DNR, 383 Md. 569, 86 1 A.2d 60 (2004).
Before this Court, Kushell argues that the State Boat Act imposes tax only on the possession of a vessel which, at the time of sale, was purchased with the specific intent of using it principally in Maryland. He argues that the plain language of § 8-716(c)(1)(iv) unambiguously requires this re sult. Kushell suggests that DNR's reading renders the words "to be" nugatory, because the meaning would not change if "to be" were deleted and the statute simply read "possession within the State of a vessel purchased outside the state[,] used principally in the State." DNR's reading also renders the words "possession within the State" superfluous, according to Kushell, because any vessel used principally in Maryland is by definition possessed here.
Kushell points to cases in which we construed the language "purchased . . . tangible personal property for use, storage or [other] consumption in this State," contained in Md. Code (1951), Art. 81 �� 368(c) and 369, to require, as a precondition for assessment, that a purchaser have intended at the time of purchase to use, store, or consume the property in Maryland. See Comp. of Treas. v. Thompson Tr. Corp., 209 Md. 490, 495-96, 121 A.2d 850, 853 (1956); Comptroller v. Julian, 215 Md. 406 , 412, 137 A.2d 6 74, 679 (1958). Kushell notes that Art. 81 § 368(c) was amended in 1955 to replace the phrase "for use, storage or other consumption" with "used, stored or consumed," and that Art. 81 § 369 was simultaneously amended to delete altogether the phrase "for use, storage or consumption." See 1955 Md. Laws, Ch. 332 a t 507-08. We subsequently held that these amendments made liability "depend on actual use, storage or consumption in Maryland,rather than on purchase with intent to use, store or consume in the State." Lane Corp. v. Comptroller, 228 Md. 90, 92, 178 A.2d 904, 905 (1962). Kushell contends that the current language of § 8-716(c)(1)(iv) is more akin to that of Md. Code (1 951), Art. 81 § 368(c) and 369 than it is to the post-1955 versions of those statutes. He suggests that this similarity evinces an intent on the part of the General Assembly to include the same intent requirement in the present-day boat tax as was contained in the pre-1955 general use tax. Turning to legislative history, Kushell contends that an earlier proposed version of the provision that ultimately became § 8-716(c)(1)(iv) would unambiguously have imposed the tax without regard to intent at the time of purchase. The rejection of this bill in favor of the enacted legislation, Kushell argues, demonstrates a legislative purpose to condition tax liability on the purchaser's contemporaneous intent to us e a vessel in Maryland. See House Bill 1575 (1985) (providing, in pertinent part, "the owner of any vessel that has a valid document issued by the United States Coast Guard and that is used principally on the waters of the State for pleasure shall pay a 5 percent excise tax on the gross sales price . . . .") (emphasis added).
Kushell also notes a comparison between § 8-716(c)(1)(iv) and � 8-712.1(a)(1) of the Natural Resources Article. The latter statute provides: "An owner of a vessel that has a valid document issued by the United States Coast Guard and that is used principally on the waters of the State for pleasure shall apply to the Department for a Maryland use sticker." (Emphasis added.) Kushell suggests that the variation is meaningful; that the present statutory scheme requires all federally documented vessels principally used in Maryland to display a use sticker, but imposes excise tax only on those purchased with the specific intent to make Maryland the state of principal use.
Kushell also draws our attention to the Connecticut case of Magic II, Inc. v. Dubno, 537 A.2d 998 (Conn. 1988). In that case, the Connecticut Supreme Court examined the following language: "An excise tax is hereby imposed on the storage, acceptance, consumption or any other use in this state of tangible personal property purchased from any retailer for storage, acceptance, consumption or any other use in this state . . . ." Conn. Gen. S tat. § 12-411 (1985). The Court up held the Deputy Commissioner of Revenue's interpretation that the statute required, as a condition precedent to liability, that "the purchase must have been made for the purpose of storage , use, or other consumption in this state." Magic II, Inc., 537 A.2d at 999 (emphasis added). Kushell argues that the same interpretation would be appropriate in the instant case.
Kushell also raises an estoppel argument. Assuming arguendo that he is incorrect about the meaning of § 8-716(c)(1)(iv), Kushell argues that DNR should be estopped from assessing this tax because of Kushell's reliance on potentially misleading statements on the DNR website concerning the definition of "principal use," and because of his reliance on an incorrect oral explanation of that term by a DNR clerk.  Finally, he argues that the statute should be stuck down as unconstitutionally vague, as applied either to Kushell or to others similarly situated.
DNR argues that its interpretation of § 8-716(c)(1)(iv) is entitled to judicial deference.It further contends that the statute unambiguously subjects Kushell to the tax; that it is Kushell who is attempting to interpolate language by imposing an intent requirement not supported by the statutory text. DNR also suggests that Kushell's reading would render other provisions of § 8-716 superfluous. Specifically, it points to the system of tax abatement and exemption set out in § 8-716(f)3 for vessels on which excise tax has already been paid to a Footnote 3 ; jurisdiction with reciprocal provisions. According to DNR, this system would be superfluous if liability were dependent on original intent, because there would be no tax liability for owners such as Kushell, and thus no need for a system of abatement. DNR argues that our interpretation of Maryland's post-1955 general use tax in Lane furnishes persuasive authority for construing the current boat tax law. It suggests that under Lane, liability under a use tax is dependent on use or possession at the time of putative liability, not on subjective intent at the time of purchase.
DNR criticizes Kushell's reliance on the defeated House Bill 1575 as evidence that the Legislature specifically considered and re jecte d a non-intent-based use tax on federally documented vessels brought into Maryland. It argues that the provision at issue merely was a proposal to reassign collection of Maryland's general personal property use tax, as applied to pleasure boats, from the Comptroller to the Department of Natural Resources. DNR points to the legislative history of § 8-716, highlighting language which was part of House Bill 1849 (1986), but was deleted from the statute as enacted. See 1986 Md. Laws, Ch. 828 at 3177-78. That language would have provided: "Notwithstanding the provisions of this subsection, no tax is paid on . . . (ii.) A documented vessel that is purchased or acquired prior to coming into this State by a nonresident of this State and: 1. Remains in this State for not more than 180 days . . . ." DNR argues that the rejection of this language evinces a legislative intent contrary to Kushell's position. With respect to Kushell's estoppel argument, DNR contends that the government may not be estopped from performing the quintessentially governmental function of collecting a tax. See Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 63-65, 300 A.2d 367, 385-86 (1973). It acknowledges that agencies may be bound to follow their own rules and regulations, see Accardi v. Shaugnessy, 347 U.S. 260, 74 S. Ct. 499, 98 L. Ed. 68 1 (1954); Pollock v. Patuxent, 374 Md. 463, 467, 823 A.2d 626, 628 (2003), but denies that DNR rules or regulations ever have held "principal use" to require greater than six months use during-12- a calender year. It also argues that § 8-716(c)(1)(iv) is sufficiently clear to render it not unconstitutionally vague.
(vi) is arbitrary or capricious."
Many Maryland cases have set out the standard for judicial review of administrative agency decisions. We have often stated that a court ordinarily will review the actions of an -13- administrative agency only to determine if its conclusions are arbitrary, capricious, or contrary to law. In reviewing factual determinations, or mixed questions of law and fact, we apply the "substantial evidence" standard set forth in § 10-222(h)(3)(v) of the State Government Article, reversing the agency's findings only if we hold that "a reasoning mind" could not have reached them on the record before the agency. Charles County v. Vann, 382 Md. 286, 295, 855 A.2d 313, 318 (2004); Board of Physician v. Banks, 354 Md. 59, 67-68, 729 A.2d 3 76, 380 -81 (1999). See Bulluck v. Pelham Wood Apts., 283 Md. 505, 512-13, 390 A.2d 1119, 11 23-24 (1978).
In reviewing an agency's legal conclusions, on the other hand, we determine under § 10-222(h)(3)(iv) of the State Government Article whether the conclusions are "affected by any other error of law." Accordingly, we review de novo. Spencer v. Board of Pharmacy, 380 Md. 515, 528, 846 A.2d 341, 348-49 (2004). While we frequently give weight to an agency's experience in interpretation of a statute that it administers, it is always within our prerogative to determine whether an agency's conclusions of law are correct. Christopher v. Dept. of Health, 381 Md. 18 8, 198, 849 A.2d 46, 52 (2004); Balto. Lutheran High Sch. v. Empl. Sec. Adm., 302 Md. 649 , 662, 490 A.2d 7 01, 708 (1985). In reviewing the decision of an administrative agency, we evaluate the decision of the agency under the same statutory standards as would the circu it court. Spencer, 380 Md. at 523-24, 846 A .2d at 346 (2004).
The legal issue in this case is one of statutory interpretation. The cardinal rule of statutory interpretation is to ascertain and effectuate the intent of the Legislature. See Collins v. State, 383 Md. 684, 688, 861 A.2d 727, 730 (2004 ). Statutory construction begins with the plain language of the statute, and ordinary, popular understanding of the English language dictates interpretation of its terminology. Deville v. Sta te, 383 Md. 217, 223, 858 A.2d 484, 487 (2004). In construing the plain language, "[a] court may neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute; nor may it construe the statute with forced o r subtle interpretations that limit or extend its application." Price v. State , 378 Md. 378, 387 , 835 A.2d 1221, 1226 (2003 ); County Council v. Dutcher, 365 Md. 399, 416-417, 780 A.2d 1137, 1147 (20 01). Statutory text "should be read so that no word, clause, sentence or phrase is rendered superfluous or nugatory." Collins, 383 Md. at 691, 861 A.2d at 732 (quoting James v. Butler, 378 Md. 683, 696, 838 A.2d 1180, 1187 (2003)). The plain language of a provision is not interpreted in isolation. Rather, we analyze the statutory scheme as a whole and attempt to harmonize provisions dealing with the same subject so that each may be given effect. Deville, 383 Md. at 223, 858 A.2d at 487; Navarro-Monzo v. Washington Adventist, 380 Md. 195, 204, 844 A.2d 406, 411 (2004).
If statutory language is unambiguous when construed according to its ordinary and everyday meaning, then we give effect to the statute as it is written. Collins, 383 Md. at -15- 688-89, 861 A.2d at 73 0. "If there is no ambiguity in that language, either inherently or by reference to other relevant laws or circum stances, the inquiry as to legislative intent ends; we do not need to resort to the various, and sometimes inconsistent, external rules of construction, for 'the Legislature is presumed to have meant what it said and said w hat it meant.'" Arundel Corp. v. M arie, 383 Md. 489 , 502, 860 A.2d 8 86, 894 (2004) (quoting Witte v. Azarian, 369 Md. 518 , 525, 801 A.2d 1 60, 165 (2002)). According to Kushell, the tax subjudice applies only to the act of possessing, with in Maryland, a vessel which was (a) purchased outside the State, and (b) purchased with the intent to principally use it in Maryland. According to DNR, the tax applies to the act of possessing, within Maryland, a vessel which (a) was purchased outside the State, and (b) is now used, or is going to be used, principally here.
the State , to be used principally in the State."
Finally, we could insert two commas, producing "The possession within the State of a vessel, purchased outside the State, to be used principally in the State." Most readers would interpret "purchased outside the State" and "to be used principally in the State" as two terms in a list of modifiers, both referring to "vessel". Again, this is neither the grammar nor the punctuation chosen by the Legislature.
Without alteration of the statutory language, we find it inescapable that "to be used principally in the State" modifies "purchased outside the State." Since Kushell's reading is supported by the unadu lterated text, w e will not entertain readings which require us to "add[or] delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute," or to "construe the statute with forced or subtle interpretations that limit or extend its application." Price, 378 Md. at 387, 835 A.2d at 1226. DNR argues that Kushell's reading of § 8-716(c)(1)(iv) would render the system of tax abatement codified at § 8-716(f) superfluous. We do not agree. Section 8-716(f) allows a dollar-for-dollar offset of sales or excise taxes paid to other jurisdictions on vessels which have become subject to Maryland's boat tax. It is true that the § 8-716(f) abatement will be unnecessary for owners who, like Kushell, have no boat tax liability under our reading of § 8-716(c)(1)(iv). But this construction hardly makes the abatement superfluous. The section will apply to owners who incur tax liability by re-titling vessels in Maryland, and will apply to owners who purchased federally-documented vessels in other states with the intent to principally use them in Maryland.
Comparing § 8-716(c)(1)(iv) to Maryland's general sales and use tax, set out at Md. Code (1988, 2004 Repl. Vol.), § 11-101 et seq. of the Tax - General Article, is also instructive. Section 11-102(a) of the Tax - General Article provides: "Sales and use tax imposed. Except as otherwise provided in this title, a tax is imposed on: (1) a retail sale in the State; and (2) a use, in the State, of tangible personal property or a taxable service." We find the variation between "a use, in the State, of tangible personal property," on the one hand , and "the possession within the State o f a vessel purchased outside the State to be used principally in the State," on the other, to be meaningful. The Legislature has demonstrated that, where it seeks to tax the use of personal property without qualification as to intent at the time of purchase, it know s how to do so in straightforward language. If the Legislature had intended § 8-716(c)(1)(iv) of the Natural Resources Article to convey the same meaning as § 11-102(a) of the Tax - General Article, it could have written "the principal use, in the State, of a vessel purchased outside the State." It did not. Because we find that the plain text of § 8-716(c)(1)(iv) supports Kushell's reading both grammatically and in relationship to other statutory provisions, we will not delve into the parties' contentions regarding statutory history, legislative history, or authority from outside this jurisdiction. Neither do we reach the questions of whether DNR may be estopped from collecting the tax under the circumstances of this case, or whether § 8-716(c)(1)(iv) is u unconstitutionally vague. The parties agree that at the time Kushell purchased the Genesis he had no intention of principally using it in Maryland. Accordingly, he has no tax liability under § 8-716(c)(1)(iv) of the Natural Resources Article.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE ORDER OF THE SECRETARY OF THE DEPARTMENT OF NATURAL RESOURCES. COSTS TO BE PAID BY APPELLEE.
(iii) The Department may require the taxpayer to submit satisfactory proof of the payment of a tax to another jurisdiction and the rate of tax paid and, where applicable, evidence of principal use of a federally documented vessel in another jurisdiction.


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Luigi Mari is professor of private international law and Ilaria Pretelli, Ph. D. Université Panthéon-Assas, is research fellow in private international law at the Carlo Bo University of Urbino. Both are members of the Group Galileo supported by the Université franco-italienne.
The question we would like to address is whether the lis pendens rule should be amended to allow the judge designated by the parties to a contract to decide on the jurisdiction, despite the case having been previously filed with a different Court in violation of the covenant Forum agreement.
If on one hand we do think that the actual rule leads many parties to “play” with a Forum selection with the only aim to delay the controversy definition by filing the case in front of a Court different from the one agreed upon by the parties [and apparently without Jurisdiction, so forcing the defendant to counterclaim the lack of Jurisdiction and obviously spend time before being able to get a court decision about its jurisdiction and power to hear and decide the merits of the law suit] on the other hand we do not think that the rule should be so amended as proposed by the rapporteur in the working document of 2.12.2009, but we feel to suggest to suggest another solution for the protection of choice of forum agreements in lieu of the raised issues.
According to those in favor of the modification of the lis pendens rule, the choice of forum covenant is a super-agreement that no other Judge but the one selected in the forum agreement should have the power to investigate in order to decide about its validity between the parties.
Firstly, it is important to stress that the prorogation agreement concerns judicial power to decide a case and therefore should the forum selection clause be invalid, as it happens, why should only the judge designated by the parties declare it to be so? Why should a forum selection covenant even carry the legal effect to prohibit a court decision about its own validity?
Secondly, it should be kept in mind that the terms of validity of the agreement set out in article 23 of Bruxelles I regulation do not guarantee that we are in front of a covenant which has been actually negotiated by parties.
This happens not only in the framework of a negotiation between companies with different contractual power, even though it is self-evident that between a large corporation and a small firm, the prorogation of jurisdiction may well be not subject to debate but in particular in all the agreements among companies and professionals whereby there is no negotiation at all and the professional can only adhere to the agreement without any power to amend any of the contract provision (think about all the Bank agreements, the online purchase agreements and so on and so forth).
Another very meaningful example has been given by Mme Muir Watt whom pointed out that it is important to avoid a strategic use of choice of court agreements especially when these are contained in bills of lading passing from hand to hand. This happens every day in the field of the international carriage of goods by sea, where the rules set out in art. 23 Bruxelles I – in particular the opposability of choice of court agreements to third parties according to the Coreck ruling – can be used to restrict carrier liability for cargo loss or damage.
Even still there is no doubt that unfair trial tactics, better known as torpedo actions, should be fought effectively.
Is this use of unfair trial tactics a reason sufficient to alter the lis pendens rule, which is grounded on the priority of action, whatever the action may be? We would like to point out that this rule, in the Gasser interpretation, is a rule that guarantees predictability (as the European Court of Justice stresses in Gasser: “in view of the disputes which could arise as to the very existence of a genuine agreement between the parties, expressed in accordance with the strict formal conditions laid down in Article 17 of the Brussels Convention, it is conducive to the legal certainty sought by the Convention that, in cases of lis pendens, it should be determined clearly and precisely which of the two national courts is to establish whether it has jurisdiction under the rules of the Convention. It is clear from the wording of Article 21 of the Convention that it is for the court first seised to pronounce as to its jurisdiction, in this case in the light of a jurisdiction clause relied on before it, which must be regarded as an independent concept to be appraised solely in relation to the requirements of Article 17)”.
On the contrary a change, as suggested as a second option in the Green Paper (COM(2009) 175 final of 21.4.2009) wouldn’t be conducive and could even give new opportunities to parties in search of delaying tactics: it could lead, for instance, to the allegation of the existence of an inexistent choice of court agreement in order to continue a trial initiated in a second time in front of a judge that lacks jurisdiction.
Moreover: are we sure that the two judges will decide that there is a jurisdiction agreement and the lis pendens rule does not apply, in cases where the existence of the jurisdiction agreement is unclear and depends on the existence of a usage in international trade or commerce, or a usage between the parties?
If we change the lis pendens rule and guarantee the protection of the clause by affirming the sole jurisdiction of the judge selected in the covenant, than we should also amend the recognition and enforcement procedure and establish that any decision taken by a judge that is not the designated judge must not be recognized.
If the designated judge has to be the only one allowed to evaluate the validity of the clause (or of the commercial practice), it would become impossible to give effect to any decision coming from a different judge, in order to avoid the risk of a contrast in the judgments.
It is easy to see, in our opinion, that changing the lis pendens rule will lead to a great confusion.
This is probably the reason why the Lugano Convention of 30 October 2007, signed after the Gasser ruling doesn’t change the rules on lis pendens and continue to differentiate in art. 19, the case of exclusive jurisdiction by virtue of art. 16 from all other cases, as the case of exclusive jurisdiction by virtue of art. 17.
It is more desirable, instead of changing a general rule, to find appropriate means in order to counteract unfair practices.
As regards to judges, it seems clear that if the judge of a Member States decides on clearly abusive cases, initiated only to block the other party, that State will be held responsible for violation of the principle of loyal cooperation laid down in Art. 10 of the EC treaty.
This hypothesis is hopefully exceptional: in the majority of cases judges will not be willing to uphold an unfair practice, so it should be up to them to guarantee the efficacy of the agreement.
Many European legal systems empower the judges with instruments to punish abusive conducts: in Italy, for instance the judge may condemn the party who sued or resisted in a trial with bad faith or gross negligence to pay – in addition to judicial expenses – damages to the other party. The judge may also sanction ex officio the abusive conduct by condemning the loser to pay a lump sum to the other party (see art. 96 of the Italian code of civil procedure and art. 32-1 et 700 of the French code o civil procedure).
Leaving inaltered the lis pendens rule in the Gasser interpretation, the new provisions on choice of forum should contain a more detailed regulation on the validity of the agreement, its opposability to third parties, the consequences of its violations (for instance providing the assessment of damages, to be quantified in a uniform rule or according to the lex fori).
In our opinion, changing a general rule is nothing more than a tactic to counteract an abuse of that rule, an abuse happening in a percentage of cases the importance of which is not easy to determine, while stigmatizing the abusive conduct of those who believe to be capable of escaping to justice by way of torpedo actions or other judicial unfair practices has also an high educational value and definitely contribute to build confidence in the European judicial system.
Next post: Abusive Forum Shopping?

matches:
art. 23
art. 19
art. 16
art. 17
Art. 10
art. 96
art. 32


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Robert BAIRD et al., Appellees.
W. D. GARDNER et al., Appellees.
July 20, 1961, Rehearing Denied Sept. 6, 1961.
Earl T. Thomas, W. Calvin Wells, Jr., Thomas H. Watkins, Elizabeth Grayson, Jackson, Miss., Watkins & Eager, Wells, Thomas & Wells, Jackson, Miss., Graham H. Hicks, Natchez, Miss., Fred Anderson, Gloster, Miss., for counsel, for appellants.
W. C. Keady, Fred C. DeLong, Jr., Greenville, Miss., Bernard W. N. Chill, Jackson, Miss., Walter P. North, Atty., S.E.C., Washington, D.C., Farish, Keady & Campbell, Greenville, Miss., of counsel, for appellees.
Ellwood L. Englander, Sp. Counsel, Theodore H. Focht, Atty., Washington, D.C., amicus curiae.
Before TUTTLE, Chief Judge, RIVES, Circuit Judge, and DE VANE, district judge.
These appeals involve twenty-three individual suits filed in the United States District Court for the Northern District of Mississippi. The several suits are to recover the purchase price of undivided working interests in certain oil and gas leases, situated in Louisiana, which interests were allegedly sold in violation of the Securities Act of 1933, 15 U.S.C.A. 77a, et seq., 48 Stat. 74.
After discovery proceedings were had, appellees sought summary judgments under Section 12(1) of the Act, 15 U.S.C.A. 77l(1). The Court below granted summary judgments and appellants have prosecuted these appeals, which have been consolidated in the three cases enumerated above.
Generally, the sale of these oil and gas leases was accomplished as follows. The purchaser entered into a written letter contract with appellants which provided that the purchaser agreed to buy a specified undivided interest and the seller agreed to assign the said interest as soon as practical. Some time after the execution of the letter agreements, appellants executed a formal assignment of a lease covering each tract and named the numerous purchasers of individual interests as assignees. Appellants then caused the original assignments to be carried from Natchez, Mississippi, to Shreveport, Louisiana, where they were delivered to the Register of Deeds of Caddo Parish, Louisiana, for the purpose of recording as required by the laws of Louisiana. A photostatic copy of each assignment was mailed by appellants to each purchaser.
In their brief counsel for appellants have stated the facts as reflected in the case of Robert Baird v. Moses and New, Civil Action No. 337 below, as found in the record in appeal No. 18,628 of these consolidated appeals. The consolidated cases, with few minor exceptions, involve the same facts and there is substantially no dispute as to the facts in the several cases. The pleadings in all of the cases, except for names, dates, amounts and leases assigned, are identical.
Since the Baird case has been used by appellants for a fuller statement of the facts involved in these cases, the Court will follow the same procedure for a more detailed statement of the facts involved.
The complaint of Baird was filed in the Court below on October 20, 1959. Jurisdiction was allegedly based on Title 15 U.S.C. 77 and 78. The complaint alleged that the defendants, appellants here, were engaged in the sale of securities, including undivided interests in oil and gas rights upon lands located in Caddo Parish, Louisiana. The complaint further alleged that on September 2, 1958, an agent of defendants induced plaintiff to enter into a contract for the purchase of an undivided 1/64 working interest in the Brooks No. 1 lease located in the Greenwood-Waskom Field, Caddo Parish, Louisiana, and on that date plaintiff personally delivered to the defendants his check for the amount of $570, the full consideration for the lease expressed in the contract. The complaint then alleges that on or about October 28, 1958, appellants executed an assignment of the various fractional interests which they had contracted to sell by the prior letter agreements to appellee Baird and others interested in the Brooks No. 1 lease.
The record in the cases discloses that when the letter agreements were entered into between the several appellees and the appellants the appellants did not control the lands in question and did not acquire control of the same until twenty-two days after appellee Baird entered into the letter agreement for the purchase of the interest acquired by him in the lands in question.
In every case on these appeals the sequence of events was the same as in the Baird case. First, letter agreements were made; next, appellants acquired the interest which they had already contracted to sell in fractional parts; next, the assignments were executed; next, photostatic copies of the assignments were mailed to appellees and the original assignments were sent by appellants from Mississippi to Louisiana and recorded. In every case involved in these appeals, the execution of assignments, the mailing of copies thereof, and the transportation of the original assignments from Mississippi to Louisiana took place within one year prior to the filing of the complaints.
Appellants concede they never filed any registration statement with the Securities and Exchange Commission.
Sections of the Act Involved.
1. Appellants first contend that while the purchase letter agreement may be classified as an 'investment contract' between the parties, its execution and delivery constituted no violation of the Securities Act for the reason that the delivery of the contracts to appellees occurred entirely in Mississippi without the use of the mails or any other means or instrumentalities of interstate commerce and was, therefore, not a violation of the Act.
2. Appellants' next contention is that the execution of the formal assignments by appellants and the mailing of copies thereof to appellees and the transportation of the original assignments from Mississippi to Louisiana by private automobile did not lead to or result in any violation or the Securities Act by appellants, and no act of appellants with reference thereto constitute a delivery of a security by the use of the mails or interstate commerce. This contention is as untenable as their first point.
What the Court has said with reference to the first point is equally applicable here. The formal assignment executed by appellants to the several appellees was clearly a security within the meaning of the Act. The appellants being required by law to file the original of the assignments with the Register of Deeds, Caddo Parish, Louisiana, the transportation of said assignments from Mississippi to Caddo Parish, Louisiana, by private automobile clearly brought the act of appellants within the boundary limits of the Securities Act. The mailing of a certified copy of each assignment to each appellee was as effective insofar as the Securities Act is concerned as if the original assignment itself has been mailed to the appellees.
That an assignment of a fractional undivided working interest in oil and gas rights is a security within the definition of Section 2(1) of the Act is clearly and uncontrovertably established by decisions of the Supreme Court of the United States in Securities and Exchange Commission v. C. M. Joiner Leasing Corp., supra and Securities and Exchange Commission v. W. J. Howey Co., supra. An interesting case to the same effect is the recent decision of this Court in D. H. Roe v. United States, 5 Cir., 287 F.2d 435.
4. Appellants next contend that appellees cannot charge as being a violation of the Act anything done by appellants in transferring the original assignments to Louisiana, because this action is barred by the statute of limitations, 15 U.S.C.A. 77m.
The basis for this contention is that when these suits were filed appellees had no knowledge of the fact that appellants had sent the originals of the assignments to the Register of Deeds, Caddo Parish, Louisiana, for recording and keeping as required by Louisiana law and had sent them photostatic copies thereof. This fact was not discovered by appellees until early in the year 1960 and was then only discovered by an affidavit that one of appellants had filed in the case. Appellees promptly amended their complaints in this respect to conform to the information furnished them by appellants. This amendment was filed in February, 1960.
All these suits were filed on or about October 20, 1959. The original complaints all alleged that on or about October 28, 1958, appellants executed the respective assignments and sent them through the mails to the appellees shortly thereafter.
While this point has lost its value in this case by reason of the holding of the Court that the mailing of photostatic copies of the lease agreements to appellees, as well as the sending of the originals of these assignments from Natchez, Mississippi, to Caddo Parish, Louisiana, constituted a violation of the Act, it will be considered and disposed of any way.
Appellees contend that Rule 15(c) of the Federal Rules of Civil Procedure 28 U.S.C.A. permits the amendment filed in this case to relate back to the date of filing of the original complaint. Appellants vigorously contest the accuracy of this claim of appellees. The Court, however, is convinced that appellees are correct and that this amendment filed under Rule 15(c) of the Federal Rules of Civil Procedure related back to the date of the original filings in these cases. It did not touch upon new matter at all. It merely cleared up a confusion that existed from the beginning. Barron and Holtzoff, Federal Practice and Procedure, Vol. 1, Sec. 448; Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574, 65 S.Ct. 421, 89 L.Ed. 465; Barthel v. Stamm, 5 Cir., 1944, 145 F.2d 487.

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§ 476-4 Responsibility for administration.
§ 476-5 Discharge and connection prohibitions; exceptions.
§ 476-6 Failing individual sewage treatment systems prohibited.
§ 476-7 Activities contaminating stormwater prohibited.
§ 476-8 Prevention, control, and reduction of stormwater pollutants by use of best management practices.
§ 476-9 Suspension of access to MS4.
§ 476-10 Industrial or construction activity discharges.
§ 476-11 Access and monitoring of discharges.
§ 476-12 Notification of spills.
§ 476-14 Appeal of notice of violation.
§ 476-15 Corrective measures after appeal.
§ 476-18 Violations deemed a public nuisance.
§ 476-19 Remedies not exclusive.
Sewers — See Ch. 462.
Any direct or indirect nonstormwater discharge to the MS4, except as exempted in § 476-5 of this article.
The condition that applies where a municipality has been notified that the discharge of stormwater authorized under their MS4 permit may have caused or has the reasonable potential to cause or contribute to the violation of an applicable water quality standard. Under this condition, the municipality must take all necessary actions to ensure future discharges do not cause or contribute to a violation of water quality standards.
TERS — The condition in the municipality's MS4 permit that applies where the MS4 discharges to a 303(d) listed water. Under this condition, the stormwater management program must ensure no increase of the listed pollutant of concern to the 303(d) listed water.
The condition in the municipality's MS4 permit where a TMDL including requirements for control of stormwater discharges has been approved by EPA for a water body or watershed into which the MS4 discharges. If the discharge from the MS4 did not meet the TMDL stormwater allocations prior to September 10, 2003, the municipality was required to modify its stormwater management program to ensure that reduction of the pollutant of concern specified in the TMDL is achieved.
An employee, the municipal engineer or other public official(s) designated by the Village of Farmingdale to enforce this article. The SMO may also be designated by the municipality to accept and review stormwater pollution prevention plans, forward the plans to the applicable municipal board and inspect stormwater management practices.
Cause or contribute to the municipality being subject to the special conditions as defined in § 476-2, Definitions, of this article.
Such activities include failing individual sewage treatment systems as defined in § 476-6, improper management of pet waste or any other activity that causes or contributes to violations of the municipality's MS4 SPDES permit authorization.
Best management practices. Where the SMO has identified illicit discharges as defined in § 476-2 or activities contaminating stormwater as defined in § 476-7, the municipality may require implementation of best management practices (BMPs) to control those illicit discharges and activities.
Any person responsible for a property or premises, which is, or may be, the source of an illicit discharge as defined in § 476-2 or an activity contaminating stormwater as defined in § 476-7, may be required to implement, at said person's expense, additional structural and nonstructural BMPs to reduce or eliminate the source of pollutant(s) to the MS4.
Most tanks should be pumped out every two to three years. However, pumping may be more or less frequent depending on use. Inspection of the tank for cracks, leaks and blockages should be done by the septage hauler at the time of pumping of the tank contents.
Suspension due to the detection of illicit discharge. Any person discharging to the municipality's MS4 in violation of this article may have their MS4 access terminated if such termination would abate or reduce an illicit discharge. The SMO will notify a violator in writing of the proposed termination of its MS4 access and the reasons therefor. The violator may petition the SMO for a reconsideration and hearing. Access may be granted by the SMO if he/she finds that the illicit discharge has ceased and the discharger has taken steps to prevent its recurrence. Access may be denied if the SMO determines in writing that the illicit discharge has not ceased or is likely to recur. A person commits an offense if the person reinstates MS4 access to premises terminated pursuant to this section without the prior approval of the SMO.
Any person receiving a notice of violation may appeal the determination of the SMO to the Village Board of Trustees within 15 days of its issuance, which shall hear the appeal within 30 days after the filing of the appeal, and within five days of making its decision, file its decision in the office of the Village Clerk-Treasurer and mail a copy of its decision by certified mail to the discharger.
Violator acted quickly to remedy violation.


text:
Flanders Electric Motor Service, Inc. ("Flanders") appeals from summary judgment granted in .... Equitable Life Assurance Society, 833 F.2d 1253, 1256 ( 7th Cir.
Before the Court is Defendant American General Life Insurance Company's Motion to ... are Defendants ECI Pension Services, LLC and Economic Concepts, Inc., and the individual .... Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 ( 1941).
Oct 27, 2017 ... American United Life Insurance Company (“AUL”) has appealed the Indiana. Department of State ... Indianapolis, Indiana. ... the storage, use, or other consumption of a taxable item in the state of Texas. ... See C & C Oil Co. v.
04/16/19, City of Indianapolis v. Ginger .... Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.) ...... Viking, Inc., and Selective Insurance Company of America (mem. dec.) ...... 04/28/17, State of Indiana and Indiana Bureau of Motor Vehicles v. ...... 03/07/17, Southern Indiana Gas & Electric Company v.
May 28, 2011 ... blackout, duty, electric, electricity, interruption, law, legal, liability, ... U.S. v. Consolidated Edison Co. (S.D.N.Y. 1975) . ... Indianapolis Power & Light Co. .... Public Service Co. of New Mexico, 82 P.3d 960, 963-964 (N.M.App. 2003) (in a .... outage, they should purchase business interruption insurance from.


As brokers have observed changes in the LTCi industry, including past rate increases and carriers leaving the market, some have looked for alternatives to traditional LTCi. They want something that addresses the client concern of “use it or lose it.” Combo/hybrid products can be a solution.
What is a combo product?
Combo products, often called hybrid or asset-based products, combine a life insurance or annuity contract with a long-term care benefit. In addition to allowing the client to accelerate the death benefit/annuity value to use for long-term care, some products offer an additional extension of benefits that can be used if the long-term care need continues after the death benefit is exhausted. This creates a better way to “self-insure”. The client self-insures with the death benefit/annuity benefit that might otherwise go to heirs and because of that, they can buy an inexpensive partial catastrophe coverage (partial “stop loss” coverage).
For life/LTCi combos, there are two basic types, determined by their tax status. §7702(b) qualifies as LTCi, hence can be marketed as LTCi, and benefits for LTCi will trigger the same as they would for a traditional LTCi policy. That is, the client is certified by a licensed health care professional to be unable to perform 2 of the activities of daily living for 90 days or longer, or the client is diagnosed with a severe cognitive impairment. Any product with extension of benefits or (compound) benefit increases is a 7702(b) product (except we have one work-site §1.01(g) product with an extension of benefits). They focus more on LTCi than on cash value and often they are paid in one single lump sum payment, or over only a few years.
The other option, §1.01(g), offers an accelerated death benefit that can be used for long-term care and sometimes for a terminal illness. §1.01(g) policies vary widely. The accelerated death benefit rider might be included in the policy with no upfront fee. Alternatively, fees may be charged when the client uses it. Benefits are often paid in a lump sum, as opposed to monthly payments received from a §7702(b) plan. Benefits are always on a “cash” or “indemnity” basis rather than “reimbursing” actual expenses. Sometimes they require a “permanent” ADL lost, but the trend is away from that requirement.
The information here will focus on §7702(b) plans.
The client is not eligible for tax breaks which apply to stand-alone LTCi.
The client is not likely to benefit from Partnership “asset disregard”.
While some of the combo carriers offer a streamlined underwriting process, underwriting is still required. In general, the same conditions that are uninsurable for LTCi are uninsurable for a life/LTCi combo. There are generally fewer rate classes on combo products. Streamlined underwriting may result in an issue to someone who would be declined under full underwriting or the reverse could be true.
Use our health pre-qualification form before you meet with your client to allow you get an accurate feel for the most likely rate class.
7702(b) combo products combine a whole or universal life insurance chassis with an extension of benefits rider. These two pieces allow for a death benefit if the client doesn’t need LTCi, or a larger bucket of money to use if the client does need LTC.
Based on the premium, age, underwriting class, etc. the policy generates a “Specified Amount” which is the minimum death benefit (the death benefit might be higher early in the policy and late in the policy, but at likely ages of death, this minimum death benefit would apply. If the client needs LTCi, the first thing the policy will do is to accelerate the death benefit. It is usually accelerated over a period of two or three years. The two-year acceleration generates a larger monthly amount since the death benefit is being spread out over only 24 months. If the three-year acceleration is selected the minimum death benefit is spread out over 36 months. These are reimbursement benefits, so, if the full amount is not used each month, the accelerated death benefit will take more than 2 or 3 years to get paid out.
At the time the policy is purchased, the client can also choose an extension of benefits. Four-year or endless (lifetime) extension of benefits is most common. The extension has the same maximum monthly benefit as applied for the first two or three years of the policy, except to the degree that compounding applies. The extension doesn’t reduce the death benefit (the death benefit has already been used up), It’s like a second pool of money with a long elimination period (since it can’t be accessed until the first pool is used).
If the client uses the entire death benefit, there’s usually a residual death benefit (ranging from 5-20%, depending on carrier).
A $x/month two-year benefit period (possibly with extension) can cost less than a $x/month three-year benefit period (possibly with extension) because the three-year benefit period generates a specified amount of 36 x $x whereas the 24-month period generates a specified amount of only 24 x $x.
At older ages, extension of benefits or the benefit increase options might not be available with some carriers.
Most combo products offer a cash value if you no longer want the policy. Because most clients don’t surrender these policies, and because high cash values require that the insurer hold higher reserves, the industry is migrating toward cash values equal to 80% of the premiums paid (less 100% of claims). There is often an option to grade the cash value up, over 5 years, to 100% of premiums (less claims). Most people prefer more death benefit and LTCi benefit rather than more cash value.
Combo products are hard to compare to each other. Quoting several options leads to “analysis paralysis” for both the advisor and client. We focus in on the best options for your client if your client answers these supplemental questions. Based on their answers, we will let you know which product best addresses their needs.
Use our customizable combo fliers to discuss opportunities with your clients.
One of the biggest attractions for a combo product is the possibility of deciding you don’t want the policy and getting your money back. Because most clients don’t surrender these policies, and because a full return of premium requires that the insurers hold higher reserves, we are seeing more of the carriers offer a return of premium that starts a little lower and grades up to 100%. Or, they will offer a lower return of premium at any time. The lower return of premium allows for a higher face amount and a higher monthly LTCi benefits.
Even more so than traditional LTCi, combo products vary widely. Quoting multiple options can lead to “analysis paralysis” for both you and your client. We help you narrow down the choices by having your client answer these supplemental questions. Based on their answers, we will let you know which product best addresses their needs.


(1) One or more instances involving failure to adhere to the applicable standard of care to a degree that constitutes gross negligence, as determined by the board.
(2) Repeated instances involving failure to adhere to the applicable standard of care to a degree that constitutes ordinary negligence, as determined by the board.
(3) A pattern of practice or other behavior that demonstrates a manifest incapacity or incompetence to practice the healing arts.
(1) Solicitation of professional patronage through the use of fraudulent or false advertisements, or profiting by the acts of those representing themselves to be agents of the licensee.
(2) Representing to a patient that a manifestly incurable disease, condition or injury can be permanently cured.
(3) Assisting in the care or treatment of a patient without the consent of the patient, the attending physician or the patient's legal representatives.
(4) The use of any letters, words or terms as an affix, on stationery, in advertisements or otherwise indicating that such person is entitled to practice a branch of the healing arts for which such person is not licensed.
(5) Performing, procuring or aiding and abetting in the performance or procurement of a criminal abortion.
(6) Willful betrayal of confidential information.
(7) Advertising professional superiority or the performance of professional services in a superior manner.
(8) Advertising to guarantee any professional service or to perform any operation painlessly.
(9) Participating in any action as a staff member of a medical care facility that is designed to exclude or that results in the exclusion of any person licensed to practice medicine and surgery from the medical staff of a nonprofit medical care facility licensed in this state because of the branch of the healing arts practiced by such person or without just cause.
(10) Failure to effectuate the declaration of a qualified patient as provided in K.S.A. 65-28,107(a), and amendments thereto.
(11) Prescribing, ordering, dispensing, administering, selling, supplying or giving any amphetamines or sympathomimetic amines, except as authorized by K.S.A. 65-2837a, and amendments thereto.
(12) Conduct likely to deceive, defraud or harm the public.
(13) Making a false or misleading statement regarding the licensee's skill or the efficacy or value of the drug, treatment or remedy prescribed by the licensee or at the licensee's direction in the treatment of any disease or other condition of the body or mind.
(14) Aiding or abetting the practice of the healing arts by an unlicensed, incompetent or impaired person.
(15) Allowing another person or organization to use the licensee's license to practice the healing arts.
(16) Commission of any act of sexual abuse, misconduct or other improper sexual contact that exploits the licensee-patient relationship with a patient or a person responsible for health care decisions concerning such patient.
(17) The use of any false, fraudulent or deceptive statement in any document connected with the practice of the healing arts including the intentional falsifying or fraudulent altering of a patient or medical care facility record.
(18) Obtaining any fee by fraud, deceit or misrepresentation.
(19) Directly or indirectly giving or receiving any fee, commission, rebate or other compensation for professional services not actually and personally rendered, other than through the legal functioning of lawful professional partnerships, corporations, limited liability companies or associations.
(20) Failure to transfer patient records to another licensee when requested to do so by the subject patient or by such patient's legally designated representative.
(21) Performing unnecessary tests, examinations or services that have no legitimate medical purpose.
(22) Charging an excessive fee for services rendered.
(23) Prescribing, dispensing, administering or distributing a prescription drug or substance, including a controlled substance, in an improper or inappropriate manner, or for other than a valid medical purpose, or not in the course of the licensee's professional practice.
(24) Repeated failure to practice healing arts with that level of care, skill and treatment that is recognized by a reasonably prudent similar practitioner as being acceptable under similar conditions and circumstances.
(25) Failure to keep written medical records that accurately describe the services rendered to the patient, including patient histories, pertinent findings, examination results and test results.
(26) Delegating professional responsibilities to a person when the licensee knows or has reason to know that such person is not qualified by training, experience or licensure to perform them.
(27) Using experimental forms of therapy without proper informed patient consent, without conforming to generally accepted criteria or standard protocols, without keeping detailed legible records or without having periodic analysis of the study and results reviewed by a committee or peers.
(28) Prescribing, dispensing, administering or distributing an anabolic steroid or human growth hormone for other than a valid medical purpose. Bodybuilding, muscle enhancement or increasing muscle bulk or strength through the use of an anabolic steroid or human growth hormone by a person who is in good health is not a valid medical purpose.
(29) Referring a patient to a health care entity for services if the licensee has a significant investment interest in the health care entity, unless the licensee informs the patient in writing of such significant investment interest and that the patient may obtain such services elsewhere.
(30) Failing to properly supervise, direct or delegate acts that constitute the healing arts to persons who perform professional services pursuant to such licensee's direction, supervision, order, referral, delegation or practice protocols.
(31) Violating K.S.A. 65-6703, and amendments thereto.
(iii) is consistent with rules and regulations adopted by the board for appropriate billing standards applicable to such services when furnished under these agreements.
(33) Engaging in conduct that violates patient trust and exploits the licensee-patient relationship for personal gain.
(C) other acts or conduct likely to deceive or defraud the board.
(c) "False advertisement" means any advertisement that is false, misleading or deceptive in a material respect. In determining whether any advertisement is misleading, there shall be taken into account not only representations made or suggested by statement, word, design, device, sound or any combination thereof, but also the extent to which the advertisement fails to reveal facts material in the light of such representations made.
(d) "Advertisement" means all representations disseminated in any manner or by any means for the purpose of inducing, or that are likely to induce, directly or indirectly, the purchase of professional services.
(e) "Licensee" for purposes of this section and K.S.A. 65-2836, and amendments thereto, means all persons issued a license, permit or special permit pursuant to article 28 of chapter 65 of the Kansas Statutes Annotated, and amendments thereto.
(f) "License" for purposes of this section and K.S.A. 65-2836, and amendments thereto, means any license, permit or special permit granted under article 28 of chapter 65 of the Kansas Statutes Annotated, and amendments thereto.
(g) "Health care entity" means any corporation, firm, partnership or other business entity that provides services for diagnosis or treatment of human health conditions and that is owned separately from a referring licensee's principle practice.
(h) "Significant investment interest" means ownership of at least 10% of the value of the firm, partnership or other business entity that owns or leases the health care entity, or ownership of at least 10% of the shares of stock of the corporation that owns or leases the health care entity.
History: L. 1957, ch. 343, § 37; L. 1976, ch. 273, § 15; L. 1979, ch. 198, § 4; L. 1979, ch. 200, § 1; L. 1983, ch. 214, § 2; L. 1984, ch. 237, § 2; L. 1986, ch. 229, § 42; L. 1987, ch. 176, § 6; L. 1989, ch. 196, § 2; L. 1991, ch. 192, § 3; L. 1993, ch. 205, § 1; L. 1998, ch. 170, § 2; L. 2000, ch. 141, § 6; L. 2006, ch. 110, § 5; L. 2007, ch. 66, § 1; L. 2008, ch. 154, § 7; L. 2014, ch. 131, § 11; L. 2017, ch. 33, § 1; July 1.


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MASSACHUSETTS PUBLIC INTEREST RESEARCH GROUP & others vs. SECRETARY OF THE COMMONWEALTH & others.
CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on January 6, 1978.
Robert J. Gaines (Charles Harak with him) for the plaintiffs.
Leo S. McNamara, Assistant Attorney General, for the Secretary of the Commonwealth.
Robert G. Bleakney, Jr., James S. Rogers, C. Duane Aldrich & Richard W. Blackburn, for the New England Telephone & Telegraph Company, submitted a brief.
HENNESSEY, C.J. This is an action brought in the Supreme Judicial Court for Suffolk County seeking declaratory and injunctive relief against the enforcement of the county-distribution requirement, embodied in art. 48 of the Amendments to the Constitution of the Commonwealth, General Provisions, II, and read into art. 48, The Initiative, V, Section 1, as amended by art. 81, Section 2. This requirement restricts the number of signatures that may qualify from any one county on behalf of an initiative or referendum petition to not more than one-quarter of the total number needed to qualify. The plaintiffs question the validity of the county-distribution requirement, the application of which has prevented the Secretary of the Commonwealth (Secretary) from transmitting the plaintiffs' initiative petition to the General Court. Unless it is so transmitted, the initiative question cannot be placed on the November, 1978, election ballot.
The case was submitted to a single justice of this court on a statement of agreed facts and exhibits. The matter was reserved and reported by him to the full bench on the pleadings and the statement of agreed facts and exhibits therein. We conclude that the county-distribution requirement is constitutional, and a declaration to that effect shall be entered.
The relevant constitutional provisions, and the facts of this case, are summarized as follows.
and referendum, the power to enact or to repeal certain legislation of Statewide applicability is reserved to the people. The popular initiative is described in the Constitution as "the power of a specified number of voters to submit constitutional amendments and laws to the people for approval or rejection." Art. 48, The Initiative, I.
An initiative petition may propose only measures of Statewide applicability. The Constitution specifically excludes from the initiative process laws whose operation would be restricted to a particular town, city, county or other political division or to particular districts or localities of the Commonwealth. Art. 48, The Initiative, II, Section 2.
The procedure for the adoption of a law through a popular initiative is set forth in art. 48, which was proposed at the Constitutional Convention of 1917-1918, and later approved by the electorate at the general election held on November 5, 1918. Under the provisions of that article, any ten qualified voters of the Commonwealth, without regard to their county of residence, may draw up and sign an initiative petition containing the full text of the law proposed by the petition. This petition must be submitted to the Attorney General no later than the first Wednesday in the August next preceding the assembly of the General Court for the session in which it is to be introduced. If the Attorney General certifies that the petition is in the proper form, does not contain excluded matter, and is not substantially the same as any measure that has been submitted to the people at either of the two preceding State elections, the petition may be filed with the Secretary. On receipt of the petition, the Secretary prepares blank signature sheets for the use of subsequent signers, containing a summary of the proposal prepared by the Attorney General, and the names and addresses of the first ten signers. The initiative petition can be filed with the Secretary no earlier than the first Wednesday in September. Art. 48, The Initiative, II, Section 3, as amended by art. 74 of the Amendments.
entire vote cast for Governor at the preceding gubernatorial election. Art. 48, The Initiative, V, Section 1, as amended by art. 81, Section 2. The Secretary has determined that, for measures proposed for adoption in 1978, the number of signatures required is 55,644.
Although the fourteen counties of the Commonwealth vary enormously in population and in their numbers of registered voters, [Note 1] the so called county-distribution rule, art. 48, General Provisions, II, provides that: "Not more than one-fourth of the certified signatures on any petition shall be those of registered voters of any one county." Consequently, for measures proposed by initiative in 1978, no more than 13,911 signatures from any one county may be counted toward the total number of signatures required.
The county-distribution rule limits the number of additional signatures that can be counted from any one county. Using 1977 as an example, not more than one-quarter of the required 55,644 signatures could come from any one county, and once 13,911 valid signatures were collected in any one county, the signatures of additional voters in that county were rendered meaningless by operation of the county-distribution rule.
proposal on the ballot at the next State election. The additional number of certified signatures necessary for this procedure is equal to one-half of one per cent of the entire vote cast for Governor at the preceding gubernatorial election. Art. 48, The Initiative, V, Section 1.
A law proposed by a popular initiative may be enacted by a majority of those voting on the measure, provided that it receives at least thirty per cent of the total number of votes cast at the election. Art. 48, The Initiative, V, Section 1. The veto power of the Governor does not extend to measures approved by the people in this manner. Art. 48, General Provisions, V.
On August 3, 1977, ten qualified voters submitted to the Attorney General a popular initiative petition calling for the enactment of a general law to establish a public corporation, The Telephone Consumers' Action Group, Inc. (TELCAG), which would have the purpose of representing the interests of consumers in the regulation of residential telephone rates and services. The corporation would be required to receive and respond to consumers' grievances in the use of residential telephone service. It would be empowered to represent consumer interests before regulatory boards and in the courts and to compile and disseminate consumer information to the public. The proposal would not affect the authority of the Attorney General to intervene in these proceedings. Funds for the operation of the corporation would be solicited through the telephone company's billing system. Directors of the corporation would be elected by the contributors.
signatures, which were collected in communities in each of the fourteen counties of the Commonwealth, were timely submitted to the appropriate officials in the cities and towns for certification. Of the 87,500 signatures, 61,676 were certified to be registered voters by the appropriate officials in the various cities and towns. The signature sheets bearing the collected signatures were filed with the Secretary on or before the first Wednesday in December of 1977.
The Secretary did not, however, transmit the petition to the clerk of the House of Representatives. In a letter dated December 14, 1977, addressed to an agent of the petitioners, the Secretary acknowledged receipt of the 61,676 certified signatures, but indicated that, if the county-distribution rule were applied, only 54,528 could be allowed. Subsequently, by letter dated January 5, 1978, the Secretary informed the first ten signers that he would not count more than 13,911 signatures from any one county and that he was rejecting the petition on the ground that only 54,528 signatures could be allowed.
The Secretary disallowed 5,353 signatures from Middlesex County and 1,795 signatures from Suffolk County. As a result, the petition fell 1,116 signatures short of the 55,644 required for transmittal to the General Court.
In his letter of January 5, 1978, the Secretary expressed his belief that the county-distribution requirement was unconstitutional, but that he did not have the power to transmit the petition to the General Court until the courts so ruled. [Note 2] On January 6, 1978, the plaintiffs commenced this action seeking declaratory relief, alleging that the enforcement of the county-distribution rule deprived them of equal protection of the laws, as guaranteed by the Fourteenth Amendment to the United States Constitution.
Research Group. It is a corporation organized under G. L. c. 180. As such it has no right to vote and no right to submit initiative petitions for enactment by the people. It has asserted no rights guaranteed it under the Constitution of the United States, and thus has no standing in this case. See First Nat'l Bank v. Attorney Gen., 371 Mass. 773 , 783-785 (1977); First Nat'l Bank v. Attorney Gen., 362 Mass. 570 , 582, 590 (1972). There are other plaintiffs who have standing, and for that reason it is not crucial for the plaintiffs to establish the standing of the corporate plaintiff. Nevertheless, the declaration of rights which is to ensue here should, of course, make a declaration as to the corporation's lack of standing.
2. Severability. It seems clear to us that the county-distribution rule was not intended by the adopters of art. 48 to be severable from the rest of the article if that distribution rule were found to violate the Federal Constitution. The county-distribution provision, devised, apparently, to discourage the use of the initiative for wholly regional or local issues, was inserted in the first draft of art. 48 reported by the Committee on Initiative and Referendum at the Massachusetts Constitutional Convention of 1917-1918. See Legislative Research Council, Report Relative to Revising Statewide Initiative and Referendum Provisions of the Massachusetts Constitution, 1975 House Doc. No. 5435, at 58-59. The provision became one of the most hotly debated issues of that convention and consumed forty-five days of the convention's time. The significance of the county-distribution rule to art. 48 as a whole is reflected in the primacy afforded that provision in the version finally adopted by the electorate. The county-distribution rule stands alone in the Constitution as Part II of the General Provisions of art. 48.
This court has recognized a strong policy in favor of preserving our laws in the face of constitutional challenges whenever possible. See Ferguson v. Commissioner of Corps. & Taxation, 316 Mass. 318 (1944); Baird v. Davoren, 346 F. Supp. 515 (D. Mass. 1972). See also Stern, Separability and Separability Clauses in the Supreme Court, 51 Harv. L.
Rev. 76 (1937). Nevertheless, it is doubtful whether art. 48 as a whole could have been adopted without the county-distribution provision. In the circumstances, therefore, we conclude that if the county-distribution rule violates the Federal Constitution, then the initiative provision of art. 48 is wholly inoperative. See Commonwealth v. Baird, 355 Mass. 746 , 755 (1969). The consequence, of course, would be that these or any other plaintiffs would have no right to place an initiative proposal on the ballot of this or any other State election unless a new constitutional amendment were adopted.
3. Equal protection. The county-distribution provisions of art. 48 may result in inequality, because enforcement of the rule means that the signatures gathered by the sponsors of the petition may not all have equal legal significance. The question before the court is whether this inequality renders art. 48 unconstitutional. We conclude that it does not.
achievement of the State's objective." McGowan v. Maryland, 366 U.S. 420, 425 (1961). This court must give due regard to "the presumption of constitutionality to which every duly enacted state and federal law is entitled," Lockport v. Citizens for Community Action at the Local Level, 430 U.S. 259, 272 (1977), and this presumption that must be given particular force in regard to a State constitutional provision adopted by vote of the people of the State. See Raton v. Sproule, 78 N.M. 138 (1967); Southern Ry. v. Fowler, 497 S.W.2d 891 (Tenn. 1973). As a general rule, a provision of law -- even one that results in some inequality -- "will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, supra at 426. See Commonwealth v. Henry's Drywall Co., 366 Mass. 539 (1974).
In certain classes of cases, of course, a more rigorous standard of scrutiny is appropriate. These are cases in which the challenged provision rests on a suspect classification [Note 4] or impinges on a fundamental interest. [Note 5] In cases where strict scrutiny is appropriate, the State must demonstrate affirmatively that the challenged provision promotes a compelling State interest which could not be achieved in any less restrictive manner. See, e.g., Dunn v. Blumstein 405 U.S. 330, 337 (1972). No suspect classification is involved in this case, but the plaintiffs argue that a fundamental interest in voting may be involved in one of several ways.
the challenged provision concerns the petitioning or the voting stage of the election process. On its face, the plaintiffs' assertion is appealing -- voting has long been recognized as a fundamental political right and indeed the "preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). See Reynolds v. Sims, 377 U.S. 533, 561-562 (1964). On closer examination, however, the thicket of strict scrutiny cases relied on by the plaintiffs separates into distinguishable groups, and it appears that the plaintiffs' case does not fall within any one of them.
The Supreme Court has made it clear "that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction." Dunn v. Blumstein, supra at 336. See, e.g., Hill v. Stone, 421 U.S. 289 (1975); Kramer v. Union Free School Dist. No. 15, 395 U.S. 621 (1969); Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966); Louisiana v. United States, 380 U.S. 145 (1965). Classifications imposing conditions of eligibility on otherwise qualified voters have been reviewed with strict scrutiny, but these cases are not applicable here. The county-distribution rule in no way affects the right of qualified voters to cast their votes for or against an initiative proposal properly on the ballot.
adoption of the proposal in issue. Lockport v. Citizens for Community Action at the Local Level, 430 U.S. 259, 268 (1977). See, e.g., Cipriano v. Houma, 395 U.S. 701 (1969). However, the county-distribution rule affects only whether certain signatures on the initiative petition are counted. In no way does the rule invalidate or dilute any citizen's vote.
place the candidate's name on the ballot. Id. at 518. The decision in Baird v. Davoren, supra, as in other ballot-access cases, appears to rest primarily on the interest of qualified voters in voting for representatives of their choice. Id. [Note 7] See Moore v. Ogilvie, supra at 820. This interest would not be served by applying strict scrutiny in the instant case, where no representation is involved.
It appears that the fundamental interest in voting is not involved in this case. Moreover, it cannot be maintained that citizens have a fundamental interest in placing measures they favor on the ballot as initiative questions, because no such right is "explicitly or implicitly quaranteed by the Constitution." San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 33-34 (1973). We conclude, therefore, that strict scrutiny is not appropriate.
cases, the step of obtaining signatures on an initiative petition has no function other than proposing a measure for consideration by the General Court or by the electorate. As in those cases, a measure proposed by initiative can become law only if adopted by vote of the General Court or the electorate. These cases persuade us that the county-distribution rule is constitutional if it has a conceivable rational basis. Commonwealth v. Henry's Drywall Co., 366 Mass. 539 , 542 (1974).
The county-distribution rule clearly satisfies this standard. In adopting art. 48, the voters of the Commonwealth reasonably could have concluded that to guard against the proliferation of ballot questions that are essentially local in effect was in the public interest and in the interest of good government. The plaintiffs insist that the county-distribution rule is an unreasonable means toward this concededly legitimate State goal. They argue that the county-distribution rule does not guarantee Statewide support for proposals on the ballot, but, in taking this position, the plaintiffs argue merely that a more nearly perfect system could have been devised for ensuring Statewide support. We bring no such scrutiny to this case. It is sufficient that the county-distribution rule is reasonably calculated to keep proposals of exclusively local concern off the ballot. We conclude that the county-distribution rule does not violate the equal protection clause of the Fourteenth Amendment, and a declaration to that effect shall be entered in the county court.
[Note 1] According to statistics prepared by the Secretary, there were 771,870 registered voters in Middlesex County in 1976. In contrast, Nantucket County had 3,750 voters, and Dukes County had 6,796 voters.
[Note 2] The Secretary acted correctly here. Despite his own opinion as to the Federal constitutional issue, he rightly declined to act because the petition did not comply with the requirements of the Massachusetts Constitution.
[Note 3] All the parties before us have examined the relevant decisions, particularly those of the Supreme Court of the United States as relating to one pole or the other: strict scrutiny on the one hand, or rational basis on the other hand. The precedents, summarized infra, support the validity of the parties' approach. As to this sometime tendency toward polarization in discussion of the standard of review, we have said: "The cases at times speak of legislation which need only undergo a test of `reasonable relation' and legislation that must survive `strict scrutiny,' but we conceive that these soubriquets are a shorthand for referring to the opposite ends of a continuum of constitutional vulnerability determined at every point by the competing values involved." Marcoux v. Attorney Gen., ante 63, 65 n.4 (1978).
[Note 4] Loving v. Virginia, 388 U.S. 1 (1967) (race). See Commonwealth v. King, 374 Mass. 5 (1977) (gender); Sugarman v. Dougall, 413 U.S. 634 (1973) (alienage); Levy v. Louisiana, 391 U.S. 68 (1968) (legitimacy of birth).
[Note 5] See, e.g., Kramer v. Union Free School Dist. No. 15, 395 U.S. 621 (1969) (access to voting); Shapiro v. Thompson, 394 U.S. 618 (1969) (interstate migration); Skinner v. Oklahoma, 316 U.S. 535 (1942) (procreation).
[Note 6] We note, however, that although the Supreme Court continues to speak of strict scrutiny as being applicable in this context, cases decided since Williams v. Rhodes, supra, suggest that the Court actually applies a more flexible standard. See American Party v. White, 415 U.S. 767 (1974); Storer v. Brown, 415 U.S. 724 (1974); Jenness v. Fortson, 403 U.S. 431 (1971). See generally Note, Nominating Petition Requirements for Third-Party and Independent Candidate Ballot Access, 11 Suffolk U.L. Rev. 974, 979-983 (1977).
[Note 7] A second basis for the decision clearly is not involved in this case. That is the associational interest of voters in forming a political party to advance their political beliefs. Baird v. Davoren, supra at 518. See Williams v. Rhodes, supra at 31.

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The Keweenaw Peninsula, located in Michigan’s Upper Peninsula, is home to the single largest concentration of native copper deposits in the world. The true size of the deposit is realised in the amount of purified native copper removed. Between 1845 and 1996 when the White Pine mine closed and ended copper mining in Michigan, the district produced approximately 15.5 billion pounds of copper. In 150 years of mining in the district, only about 40 percent of the total estimated copper contained in the deposit has been mined out. To understand how this area developed into a classic mining location and one of the great mineral collecting regions of the world, one only needs to study and understand the geology and mineralogy of “The Copper Country”.
The Keweenaw Peninsula lies on the southern flank of the Mid-Continent Rift system (MCR) of North America. The MCR extends for about 2,000 kilometres from Kansas northeast through Lake Superior, then southeast through the lower peninsula of Michigan where it ends abruptly near Detroit, Michigan. The MCR began forming around 1,100 million years ago (Ma) when a rising mantle plume came into contact with the Precambrian Superior Province. As the plume spread laterally along the base of the Superior Province, it caused the crust in the region to thin and pull apart, forming the rift. As the plume continued to rise, it began to depressurize and melt, producing rhyolite and basaltic magmas. Some of this magma found its way to the surface through faults and fractures formed from the thinning of the crust. On the Keweenaw Peninsula, over 200 individual lava flows have been counted, including the Greenstone Flow, said to be one of the largest, if not the largest, single lava flow on Earth. White (1960) suggested that the Greenstone Flow has an aerial extent of over 5,000 square kilometres and a total volume of 1,500 cubic kilometres. The Greenstone Flow is part of the Portage Lake Volcanics (PLV) which is exposed on the Keweenaw Peninsula and Isle Royale, 90 kilometres to the northwest. The PLV has a total thickness of about 10 kilometres in the center of Lake Superior (Cannon, 1992). On the Keweenaw, the PLV is about 5 kilometres thick. The PLV on the Keweenaw Peninsula erupted in a 2 to 3 million year span of time around 1,095 Ma (Davis and Paces, 1990).
Following volcanism, a period of sedimentation began that filled the rift with as much as 8 kilometres of clastic sediments (Cannon, 1992). As volcanism ended and sediments filled the area, the entire region began to subside under the immense weight of the overlying strata. This sedimentation is thought to have begun between 1,085 and 1,060 Ma. The clastic sediments consist of red coloured conglomerates (Copper Harbour Conglomerate) and red coloured sandstones (Freda Sandstone) with a thin layer of gray to black shaly sandstones (Nonesuch Shale). Late in the thermal subsidence of the rift, Cannon et al. (1989) propose that a mature red sandstone (Jacobsville Sandstone) was deposited over the entire basin.
The last phase of the MCR system involves the transformation of the original graben bounded normal faulting into high angle reverse faults. Today the main fault running along the spine of the Peninsula is the Keweenaw Fault (KF), a high angle reverse fault. Originally, this fault was a major graben bounding normal fault (Cannon et al. 1989). The KF has several kilometres of reverse displacement which caused additional steepening of already tilted strata. Additional faulting and fracturing occurred on the Peninsula in both basalts and sediments as a result of this compression on the region (White, 1968). Cannon et al. (1993) had determined that the reverse faulting occurred around 1,060 Ma based on Rb-Sr biotite ages within older Precambrian basement rocks. The most likely cause of the compression event is a continental collision on the east coast along the Grenville Front (Hoffman, 1989). The timing of reverse faulting in the Keweenaw coincides with the Grenville compression event as well. It is believed that the compressional phase began as early as 1,080 Ma (Cannon, 1994) and completed by 1,040 Ma (Price and Mcdowell, 1993).
After the completion of rifting and compression, the region experienced a quiet period. A large inland sea covered the region during the Paleozoic which deposited limestones and a few dolomites. These same rocks also make up the rocks of the Michigan Basin in the lower peninsula of Michigan. The Paleozoic rocks were removed from the Keweenaw by erosion and later by the great Pleistocene glaciation. The present day landscape of the Keweenaw is strongly influenced by the same glacial event.
As stated earlier, from 1845 to 1996, the district produced over 15 billion pounds of refined copper from 380 million tons of ore. Along with the copper, small amounts of native silver (around 11 million pounds) were also recovered (White, 1968). The major ore producing horizon was a strip of land 5 kilometres wide by 42 kilometres long between Mohawk and Painesdale. Up to 1929, this strip of land produced 95.4 percent of all copper mined in the region (Butler and Burbank, 1929). The most common host for native copper were brecciated and amygdaloidal basalt flow tops (58.5 percent of production) followed by interflow conglomerates (39.5 percent) and a cross vein system of fissures (2 percent). The four largest deposits produced 85 percent of the total district production at a grade of about two percent.
Native copper occurs as fine dissemination, vesicle fillings, and masses. A “typical” brecciated flow top is 3 to 5 metres thick and 2 to 11 kilometres along strike. The down dip length is usually 1.5 to 2.5 kilometres (Butler and Burbank, 1929). While the flow tops had the most production, one of the interflow conglomerates, the Calumet and Hecla Conglomerate, was and still is the largest single native copper lode in the world. The conglomerate produced 4.2 billion pounds of copper over a strike length of 4.9 kilometres and 2.8 kilometres down dip, and an average bed thickness of 6 metres (Weege et al. 1972). The third type of deposit on the Keweenaw Peninsula are the copper bearing veins, also known as fissure veins. The first mines of the district, the famous Cliff, Central, and Minesota mines, worked these fissures. The copper formed in open space, filling fractures that cut the basalt beds at high angles. Some of the largest masses of copper ever found (up to 520 tons) in the district were found in the fissure mines, yet the veins only produced about two percent of the total copper mined in the district (Broderick, 1931).
Native copper makes up over 99 percent of all metallic minerals mined on the Keweenaw Peninsula, making it the largest accumulation of native copper on Earth (Bornhorst and Lankton, 2006). Other metallic minerals include silver, which make up only about 0.1 percent of copper production. Most of the native copper also carried a small amount (less than 0.5 percent) of arsenic and silver (Broderick, 1929). Copper nickel arsenides are also present occurring in veins in a flow top near Mohawk, the type locality for Mohawkite (now referred to as Domeykite) (Stoiber and Davidson, 1959). Chalcocite was also found in association with native copper, but is insignificant on the Peninsula (It should be noted that White Pine mined chalcocite almost exclusively and with great success, producing approximately 4.5 billion pounds of refined copper in 43 years of operation).
Native copper is found accompanied by various gangue minerals (Butler and Burbank, 1929). Associated with copper are more than 100 hydrothermal minerals on the Peninsula (Bornhorst and Lankton, 2006). A close relationship in time exists between native copper mineralisation and other hydrothermal minerals which fill vesicles and veins throughout the district.
Much research has been done on when native copper was emplaced in relationship to other events on the Keweenaw Peninsula. White (1968) interpreted the age of native copper mineralization as younger than the rift filling sediments (Freda and Copper Harbour), but older than the Jacobsville. Weege et al. (1972) has pointed out that a close relationship exits between copper emplacement and deformation of the Keweenaw Fault. Based on field relationships, native copper mineralisation is younger than rift filling volcanics and sediments and synchronous with reverse faulting and the very beginning of rift flanking sedimentary deposition. Bornhorst et al. (1988), using Rb-Sr methods, determined the age of mineralization at between 1,060 and 1,047 Ma, some 30 my after rift filling volcanism, but contemporaneous with reverse faulting along the Keweenaw Fault.
Genetic models for native copper emplacement favor two theories. One proposes that evidence of native copper in other areas of the MCR suggests that widespread regional hot mineralising waters flowed through the region. The second suggests burial metamorphism of the basalts at temperatures of 300 to 500 degrees Celsius would generate copper rich ore fluids (Jolly, 1974). Conclusive evidence for or against either hypothesis does not exist, but a growing amount of evidence, though not conclusive, favor the burial metamorphism of rift rocks. Dissolution of only a few parts per million of copper from the basalt yields plenty of copper-rich solution. Research suggests that a sufficient amount of copper existed on the flanks of the rift locked in basalt. (Bornhorst and Rose, 1994).
As the lavas were erupted, it is thought that degassing removed large amounts of sulphur from the basalts and thus the ore fluids had a very low sulphur content (Cornwall, 1956). Movement of these fluids was accomplished through the many faults and fractures formed during regional compression and subsequent deformation. Since the age of native copper emplacement is nearly contemporaneous with compression and faulting of the PLV (around 1,060 Ma), this provided the necessary plumbing system to allow ore fluids an easier path to their final deposition place (Bornhorst, 1997). Without sulphur in the system, the copper was deposited as native metal instead of copper sulfide. The major compressional event late in the MCR system may have provided the difference in the genetic model to generate the world class native copper deposits in the Keweenaw Peninsula and nowhere else (Bornhorst, 1997).
Despite over 150 years of mining and research conducted on the Keweenaw Peninsula and its native copper deposits, many questions are still unanswered. One of the many questions is why large amounts of native copper deposits were emplaced on the Keweenaw Peninsula and no where else along the MCR when it is known that basalts are present all along the rift, based on drill core data. Another key question is why the MCR is host to such large native copper deposits when other flood basalts around the world are not. These and other important research questions will likely keep professionals and amateurs alike thinking for years to come.
Bornhorst, T.J., Paces, J.B., Grant, N.K., Obradovich, J.D., and Huber, N.K. (1988) Age of native copper mineralization, Keweenaw Peninsula, Michigan. Economic Geology, v. 83, p. 619-625.
Bornhorst, T.J., and Rose, W. I. (1994) Self guided geological field trip to the Keweenaw Peninsula, Michigan. Institute on Lake Superior Geology Proceedings, 40th Annual Meeting, Houghton, MI, v. 40, part 2, 185 p.
Bornhorst, T.J. (1997) Tectonic context of native copper deposits of the North American Midcontinent Rift System. Geological Society of America Special Paper 312, p. 127-136.
Bornhorst, T. J., and Lankton, L. D. (2006) Keweenaw Copper: Geology and History. Great Lakes Geoscience, Ontonagon, MI.
Broderick, T.M. (1929) Zoning in Michigan copper deposits and its significance. Economic Geology, v. 24, p. 149-162, 311-326.
Broderick, T.M. (1931) Fissure vein and lode relations in Michigan copper deposits. Economic Geology, v. 26, p. 840-856.
Butler, B.S., and Burbank, W.S. (1929) The Copper deposits of Michigan. U.S. Geological Survey Professional Paper 144. Washington, D.C.
Cannon, W.F., Green, A.G., Hutchinson, D.R., Lee, M., Milkereit, B., Behrendt, J.C., Halls, H.C., Green, J.C., Dickas, A.B., Morey, G.B., Sutcliffe, R., and Spencer, C. (1989) The North American Midcontinent rift beneath Lake Superior from GLIMPCE seismic reflection profiling: Tectonics, v. 8, p. 305-332.
Cannon, W.F. (1992) The Midcontinent rift in the Lake Superior region with emphasis on its geodynamic evolution: Tectonophysics, v. 213, p. 41-48.
Cannon, W.F., Peterman, Z.E., and Sims, P.K. (1993) Crustal scale thrusting and origin of the Montreal River monocline- A 35 kilometres thick cross section of the Midcontinent Rift in northern Michigan and Wisconsin. Tectonics, v. 12, p. 728-744.
Cannon, W.F. (1994) Closing of the Midcontinent Rift- A far field effect of Grencillian contraction. Geology, v. 22, p. 155-158.
Cornwall, H.R. (1956) A summary of ideas on the origin of native copper deposits. Economic Geology, v. 51, p. 615-631.
Davis, D.W., and Paces, J.B. (1990) Time resolution of geologic events on the Keweenaw Peninsula and implications for development of the Midcontinent rift system: Earth Planet Science Letters, v. 97, p. 54-64.
Hoffman, P.F. (1989) Precambrian geology and tectonic history of North America: in Bally, A.W., and Palmer, A.R., eds., The Geology of North America- An overview, Boulder, CO., Geological Society of America, The Geology of North America, v. A, p. 447-512.
Jolly, W.T. (1974) Behavior of Cu, Zn, and Ni during prehnite-pumpellyite rank metamorphism of the Keweenawan basalts, northern Michigan. Economic Geology, v. 69, p. 1118-1125.
Price, K.L., and McDowell, S.D. (1993) Illite/smectite geothermometry of the Proterozoic Oronto Group, Midcontinent rift system: Clays and Clay Minerals, v. 41, p. 134-147.
Stoiber, R.E., and Davidson, E.S. (1959) Amygdule mineral zoning in the Portage Lake Lava Series, Michigan copper district. Economic Geology, v. 54, p. 1250-1277, 1444-1460.
Weege, R.J., Pollock, J.P., and the Calumet Division Geological Staff. (1972) The geology of two new mines in the native copper district. Economic Geology, v. 67, p. 622-633.
White, W.S. (1960) The Keweenawan lavas of Lake Superior, an example of flood basalts: American Journal of Science, v. 258A, p. 367-374.
White, W.S. (1968) The native copper deposits of northern Michigan. in Ridge, J.D., ed., Ore Deposits of the United States, 1933-1967 (the Graton Sales volume). American Institute of Mining, Metallurgy, and Petroleum Engineering, New York, p. 303-325.
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