Over the past few years, the US government has taken an expansive view of who qualifies as a “Foreign Official” under the FCPA. A recent DOJ advisory opinion took the position that a member of a royal family did not qualify as a Foreign Official for FCPA purposes, leading to speculation that the government had relaxed its standards of who qualifies under the term.1 However, as the new FCPA Guidance2 demonstrates, companies should not assume that the DOJ or the SEC have narrowed their view. Companies should still make good use of the FCPA Guidance by incorporating a complete Foreign Official analysis into their risk assessments going forward.
The FCPA defines Foreign Official as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof . . ..”3 Much of the recent discussion regarding the definition of Foreign Official centers on what constitutes an “instrumentality” of the government.
The DOJ advisory opinion excluding a royal family member from the definition of foreign official did not address the “instrumentality of the government” question. Unlike recent cases involving the definition of foreign official, the royal family member in question had held only “one governmental position in the Foreign Country” in the late 1990s, and had “never had any role in any public organization.”7 There was no need to analyze the status of any organization connected to the individual as a potential instrumentality of the government, because no such organization existed. The “instrumentality of the government” question did not arise.
Of all these factors, the most significant factor is the degree of state ownership of the entity. The FCPA Guidance states that entities with only a minority of government ownership are unlikely to be considered instrumentalities of the government.9 Although unlikely, it is still possible that entities with only a minority of government ownership could be considered instrumentalities of a foreign government. For those entities, the key element appears to be the extent of control the government can exert over the entity.
An examination of any financial support provided to the entity by a foreign government.
Should a company’s risk assessment identify customers or other partners who exhibit any of the characteristics of an instrumentality of a foreign government, the company should (i) evaluate whether the characteristics are sufficient for the partner’s employees to be considered Foreign Officials; (ii) ensure existing policies and procedures regarding foreign officials are applied to any interactions with the entity, and (iii) conduct appropriate training and communication with employees, agents, and other third parties having dealings with the entity to ensure that the company’s anti-corruption guidelines are applied and followed.
1 Foreign Corrupt Practices Act Review, U.S. Department of Justice, Criminal Division, Opinion Procedure Release No. 12-01 (Sept. 18, 2012).
2 FCPA: A Resource Guide to the U.S. Foreign Corrupt Practices Act, Criminal Division of the U.S. Department of Justice and the Enforcement Division of the U.S. Securities and Exchange Commission (Nov. 14, 2012).
3 Foreign Corrupt Practices Act of 1977 (FCPA), 15 U.S.C. § 78dd-1(f)(1)(A).
4 United States v. Carson, No. 09-00077, 2011 WL 5101701, at *3 (C.D. Cal. 2011).
5 Complaint at 4, S.E.C. v. Comverse Technology, Inc., No. 11-1704 (E.D.N.Y. Apr. 7, 2011), ECF No. 1; Indictment at 3, United States v. Esquenazi, No. 09-21010 (S.D. Fla. Dec. 4, 2009), ECF No. 3.
6 Complaint at 4, S.E.C. v. Pfizer Inc., No. 12-01303 (D.D.C. Aug. 7, 2012), ECF No. 1.
7 U.S. Department of Justice, Criminal Division, supra note 1, at 2.
8 Criminal Division of the U.S. Department of Justice and the Enforcement Division of the U.S. Securities and Exchange Commission, supra note 2, at 20.
10 Id. (citing Criminal Information, US. v. Alcatel-Lucent France, S.A., No. 10-cr-20906 (S.D. Fla. Dec. 27, 2010), ECF No. 1).


text:
Civil Action No. 08-0980 (RBW).
Darryl James Anderson, O'Donnell, Schwartz Anderson, P.C., Washington, DC, for Plaintiff.
Fred Elmore Haynes, U.S. Attorney's Office, Washington, DC, for Defendant.
The plaintiff, the American Postal Workers Union, AFL-CIO ("Union"), initiated this action by filing what it titles as a Petition to Compel Arbitration ("Petition"), which seeks an order from the Court requiring that the defendant, the United States Postal Service ("Postal Service"), to recommence arbitrating the parties' ongoing grievance dispute with Arbitrator Joe H. Henderson ("Arbitrator Henderson") under the Postal Service/Union National Agreement ("National Agreement"). See generally the Petition. The defendant does not oppose arbitrating this matter, but rather contends that the arbitration process should proceed at the national level (referred to as "Step 4" of the arbitration procedure), and not before Arbitrator Henderson (referred to as "Step 3" of the arbitration procedure). Answer ¶¶ 1, 13, 23; see also Defendant's Memorandum in Support of Its Motion for Summary Judgment ("Def.'s Mem."), Declaration of Mary Hercules ("Hercules Decl."), Ex. 1 (Grievance-Arbitration Procedure). This matter is currently before the Court on the parties' cross-motions for summary judgment.
While the plaintiff has characterized its complaint as a "petition" under 9 U.S.C. § 4 (2006), the plaintiff has also invoked the Court's jurisdiction under 39 U.S.C. §§ 409(a), 1208(b) (2006), which relates to contact disputes with the United States Postal Service. Petition ¶ 5. Through its petition, the plaintiff seeks not just the Court's command to the defendant to continue with the arbitration process, but rather the Court's judgment as to which level (Step 3 or Step 4) the parties should continue arbitrating. Id. at ¶ 22. Therefore, this matter is more akin to a contract interpretation dispute than a petition to compel arbitration as set forth in 9 U.S.C. § 4. Accordingly, the Court will refer to the parties as "plaintiff" and "defendant" instead of "petitioner" and "respondent."
The Court considered the following submissions in resolving these motions: Defendant's Memorandum in Support of Its Motion for Summary Judgment ("Def.'s Mem."); Defendant's Statement of Material Facts as to Which There is No Genuine Issue; Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's Motion for Summary Judgment ("Pl.'s Mem. Opp'n"); Plaintiff's Statement of Material Facts Not in Dispute ("Pl.'s Stmt."); Defendant's Opposition to Plaintiff's Motion for Summary Judgment and Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment; Defendant's Response to Plaintiff's Statement of Material Facts Not in Genuine Dispute; and Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion for Summary Judgment.
[i]f either party believes that a case referred to Regular [District Level] Arbitration [at Step 3 of the process] involves an interpretive issue under the National Agreement or some supplement thereto which may be of general application, that party's representative shall request input from their appropriate National Representative at the Headquarters level. If either party's representative at the Headquarters level determines the case is interpretive, a notice will be sent to the other party. The case will be held pending the outcome of the National interpretive dispute [at Step 4 of the process].
Id. at Art. 15.5.B.5. Accordingly, "[o]nly cases involving interpretive issues under this Agreement . . . of general application will be arbitrated at the National level," i.e. at Step 4 of the process. Id. at Art. 15.5.D.1.
The plaintiff's grievance, which it submitted to arbitration pursuant to the National Agreement, arose from its opposition to the defendant's decision to employ temporary workers at a Phoenix, Arizona telephone service center for a call center pilot program. See Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's Motion for Summary Judgment ("Pl.'s Mem. Opp'n"), Declaration of Greg Bell ("Bell Decl."), Ex. 3 (Mar. 28, 2007 Arbitration Decision) at 4. On March 26, 2007, Arbitrator Henderson, at Step 3 of the grievance process, found that "[t]he Union [had] met its burden of proof [by] showing that the Postal Service . . . [had] violated Article 7.1.B.4 of the National Agreement . . . when it used [the temporary workers] at the Telephone Center from 1995 until it [had] clos[ed] on October 8, 1999." Pl.'s Mem. Opp'n, Bell Decl., Ex. 3 (Mar. 28, 2007 Arbitration Decision) at 17; see also Plaintiff's Statement of Material Facts Not in Dispute ("Pl.'s Stmt.") ¶ 6. Arbitrator Henderson also concluded that "[s]ince the [Phoenix telephone service] Center had closed, the remedy becomes a matter of determining who and in what amount the aggrieved employees should be compensated," and "if the Union, as the representative organization, is entitled to an award for the organization." Pl.'s Mem. Opp'n, Bell Decl., Ex. 3 (Mar. 26, 2007 Arbitration Decision) at 19. However, Arbitrator Henderson resolved that he could not, "from the information presented[,] . . . make a specific determination as to the amount(s) the [plaintiff] and/or its members should be awarded." Id. at 20. Accordingly, "[t]he matter [was] . . . remanded to the parties for their joint calculation of the hours worked by the Casual employees beyond the permitted days of the National Agreement[,]" along with specific instruction concerning the manner in which this assessment should be calculated. Id. at 20-21.
Arbitrator Henderson, having "retained jurisdiction over the . . . remedy," Pl.'s Stmt. ¶ 6, "[t]he parties returned their dispute to [him] for a hearing on the . . . remedy[,] [which] . . . was held on July 10, 2007," id. ¶ 7. On August 7, 2007, Arbitrator Henderson found "that `the total amount of the Postal Service liability' . . . is $19,717,431.00[,] . . . to be divided among clerks `presently working in the Phoenix Customer Service Area who were employed during the period from January 1, 1996 to September 30, 1999' on a prorated basis depending on the hours each clerk was on the rolls during the period of the violation." Id. ¶¶ 7-8 (citing Pl.'s Mem. Opp'n, Bell Decl., Ex. 4 (Aug. 13, 2007 Arbitration Decision) at 12). However, Arbitrator Henderson also included the limitation that "no clerk would receive more than $9,694.00," id. ¶ 8 (citing Pl.'s Mem. Opp'n, Bell Decl., Ex. 4 at 12), and he "retain[ed] jurisdiction of th[e] matter for 90 days to assist the parties if called upon" to do so, Pl.'s Mem. Opp'n, Bell Decl., Ex. 4 at 13.
The defendant construed the Arbitrator's remedy award, specifically the phrase "presently working," to mean "that no clerk who has left the Postal Service Phoenix Customer Service Area may share in the award," an interpretation that "reduc[ed] [its] liability below . . . $12,000,000.00[,]" given the cap of $9,694.00 that any individual clerk could be awarded. Pl.'s Stmt. ¶ 8. As a result of the defendant's interpretation, "[o]n or about September 21, 2007, the [plaintiff] notified the [defendant] that it was requesting the Arbitrator to hold an additional hearing" to clarify the remedy award, and therefore, presumably, whether the defendant's interpretation was appropriate. Id. ¶ 9. A hearing was convened on November 29, 2007, wherein the plaintiff "argued that the Arbitrator's August 7, 2007 award required clarification. The [defendant] contended that the Award was final and binding and that Arbitrator Henderson could not modify it."Id. ¶ 10. "Arbitrator Henderson then requested brief[ing] from the parties on the question [of] whether . . . he still had jurisdiction to clarify or modify his award." Id.
At the November 29, 2007 hearing, a representative for the defendant "informed Arbitrator Henderson that the [defendant] would be referring the parties' dispute to the national level under Article 15.5.B.5 of the National Agreement" because it was the defendant's position that "the case `appears to contain a newly raised interpretive issue . . .,' that `the issue should be referred to headquarters for review pursuant to Article 15.5.B.5,' and that `[t]he case must be held [in abeyance] pending the outcome of the national interpretive dispute.'" Id. ¶ 11 (citing Pl.'s Mem. Opp'n, Bell Decl., Ex. 2 (Nov. 29, 2007 Letter from John W. Dockins to Kenneth DeHate)).
In a separate Memorandum of Understanding regarding the National Agreement, the parties had agreed that "[o]nce an issue is forwarded to the national level pursuant to Article 15.5.B.5, the appropriate national representative will have thirty (30) days from receipt of notification to make a determination as to whether or not to initiate a national level dispute [at Step 4 of the grievance procedure]." Pl.'s Mem. Opp'n, Bell Decl., Ex. 6 (Memorandum of Understanding Between the United States Postal Service and the American Postal Workers Union, AFL-CIO ("Memorandum of Understanding")). "The Memorandum of Understanding . . . provide[d] that, in accordance with the parties' preexisting agreement on procedures under Article 15.5.B.5, if a dispute is not initiated at the national level [within that thirty day period], the case must be `. . . heard before the same arbitrator [at Step 3] who was scheduled to hear the case at the time of referral to [the national level].'" Pl.'s Stmt. ¶ 4 (some alterations in original). Therefore, under this agreement, although the defendant indicated that it wished to initiate an interpretive dispute at the national level on November 29, 2007, and because the defendant's representative failed to initiate the process within thirty days after it referred the case to its national representative, id. ¶ 15, pursuant to Article 15 of the National Agreement and the Memorandum of Understanding, the case automatically reverted to Step 3, i.e., arbitration before Arbitrator Henderson, see Def.'s Mem. at 4; Pl.'s Mem. Opp'n, Bell Decl., Ex. 7 (Jan. 14, 2008 Letter from Greg Bell to Steven Zamanakos) Ex. 8 (Jan. 23, 2008 Letter from Greg Bell to Steven Zamanakos).
1. After rendering an arbitration award, does an arbitrator have the authority to change the rendered decision?
2. After rending [sic] an arbitration award, does an arbitrator have the authority to hold an evidentiary hearing for the purpose of changing the scope of the remedy awarded?
3. After rendering an arbitration award and retaining jurisdiction on the remedy, does an arbitrator have the authority to hold an evidentiary hearing ex parte after one party asserts a referral for an interpretive review?
Id.; see also Pl.'s Mem. Opp'n, Bell Decl., Ex. 10 (Feb. 26, 2008 Letter from Joe H. Henderson to Kenneth DeHate, Omar M. Gonzalez, Nels W. Truelson, and Steven J. Zamanakos). The February 11, 2008 letter was forwarded to Arbitrator Henderson on March 4, 2008, Pl.'s Mem. Opp'n, Bell Decl., Ex 11 (Mar. 4, 2008 Letter from Kenneth A. DeHate to Joe H. Henderson), and followed up by a March 18, 2008 letter from the defendant to Arbitrator Henderson reiterating that the parties "`w[ould] not proceed with regional arbitration[,]'" Pl.'s Stmt. ¶ 2, but would refer the grievances "to the fourth step of the grievance procedure[,]" Pl.'s Mem. Opp'n, Bell Decl., Ex. 13. In response to the defendant's letters, Arbitrator Henderson stated in a letter dated March 11, 2008, that "[n]o action will be taken by me on Regional Arbitration [at Step 3] until further notice." Pl.'s Stmt. ¶ 23 (internal quotation marks omitted); Pl.'s Mem. Opp'n, Bell Decl., Ex. 14 (Mar. 11, 2008 Letter from Joe H. Henderson to Kenneth DeHate, Omar M. Gonzales, Nels W. Truelson, and Steven J. Zamanakos).
The plaintiff filed this action on June 6, 2008, see generally Petition, and the filing of the parties' cross-motions for summary judgment followed. As grounds for its motion for summary judgment, the defendant asserts that the "grievance is properly at Step 4 of the grievance-arbitration procedure[,]" and that "any arguments which the [plaintiff] might raise that the grievance should move back to district level arbitration can and must be raised at Step 4, itself, and, if necessary, before a national arbitrator." Def.'s Mem. at 1-2. In support of its position, the defendant claims that "[t]here is no prohibition in the National Agreement against either [party] making a second referral to headquarters in the same case" and that "[t]o the extent the [plaintiff] wishes to argue that the Postal Service was not allowed to make a second referral to its headquarters . . . it may raise that interpretive argument at Step 4, and if it wishes, before a national arbitrator." Id. at 7. The defendant further contends that "such an argument [by the plaintiff] would clearly raise an interpretive issue under the National Agreement" and accordingly "federal labor policy is served by having the issue decided through the parties' chosen method of dispute resolution, not through the federal courts."Id.
By contrast, in its cross-motion for summary judgment, the plaintiff claims that the grievance remains at Step 3 of the grievance-arbitration procedure given that "[b]oth parties submitted the case to Arbitrator Henderson at the regional level for arbitration" and that "[a]fter his merits award, both parties submitted the issue of the proper remedy to him for decision." Pl.'s Mem. Opp'n at 11. Moreover, the plaintiff notes that "[i]n his merits and his remedy award, Arbitrator Henderson retained jurisdiction to assist the parties with any remaining problem with his award." Id. at 12. The plaintiff further notes that "the parties' collective bargaining agreement . . . provides that arbitrability disputes are to be resolved by arbitrat[ion], . . . that all awards by arbitrators are final and binding," and "[t]hus, the Postal Service is bound by Arbitrator Henderson's reservation of jurisdiction." Id. The plaintiff also contends that "the Article 15 procedure that permits parties to refer interpretive disputes to the national level for resolution has no applica[bility] in this case" because it "is not intended to provide a right of appeal from final and binding decisions of arbitrators." Id. The plaintiff goes on to argue that "[i]t is also plain from the undisputed facts that the Postal Service has failed to follow the procedures of the National Agreement that must be followed to obtain arbitration of a case at the national level" by its "fail[ure] to initiate a dispute within 30 days."Id. at 12-13. And, the plaintiff further argues that the defendant's claimed "right to return the case to the national level a second time" would render "the requirement that the referring party initiate a dispute within 30 days . . . meaningless." Id. at 13. Finally, the plaintiff argues that even if the defendant's second referral were permissible under the National Agreement, the arbitration dispute brought by the defendant "is not interpretative and must be resolve at the regional level[,] [because] [o]nly interpretive issues of general application may be arbitrated at the national level." Id. at 13.
Summary judgment pursuant to Federal Rule of Civil Procedure 56 should be awarded to a movant if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In evaluating the appropriateness of summary judgment, the Court must view the evidence in the light most favorable to the non-moving party,Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)), accepting the non-moving party's evidence as true and drawing "all justifiable inferences" in the non-moving party's favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the Court need not rely on any "conclusory allegations unsupported by factual data," Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (internal quotation marks and citations omitted), and should only find that "there is a genuine issue for trial" where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party[,]"Anderson, 477 U.S. at 249 (citation omitted). Moreover, as the Supreme Court observed inAnderson, evidence that is "merely colorable or . . . not significantly probative" is insufficient to defeat summary judgment. Anderson, 477 U.S. at 249 (citation omitted).
When "the parties have agreed to submit all questions of contract interpretation to [an] arbitrator," the "function of the court is very limited." United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36-37 (1987) (quoting United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 567-68 (1960)). "Collective-bargaining agreements . . . provide grievance procedures to settle disputes between union and employer with respect to the interpretation and application of the agreement and require binding arbitration for unsettled grievances." Id. at 36. "The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim."Id. at 37 (citing Am. Mfg. Co., 363 U.S. at 567-68). The interpretation of the agreement through the arbitral mechanisms will be determinative, because "[i]t is the arbitrator's construction which was bargained for; and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his." United Steelworkers of Am. v. Enter. Wheel Car Corp., 363 U.S. 593, 599 (1960).
Here, the plaintiff essentially seeks to have the Court find that "the [defendant] has not properly referred the parties' dispute to the national level." Pl.'s Mem. Opp'n at 14. However, nothing in the parties' agreements causes to the Court to come to that conclusion. Referrals to the national level are governed by the National Agreement and the Memorandum of Understanding. As already set forth, the National Agreement states that "either party" can send the parties' dispute to the national level, i.e., Step 4, by notifying the opposing party that it believes that the dispute "involves an interpretive issue under the National Agreement or some supplement thereto." Def.'s Mem., Hercules Decl., Ex. 1 (National Agreement) at Art. 15.5.B.5. Further, the parties agreed in their Memorandum of Understanding that "[o]nce an issue is forwarded to the national level pursuant to Article 15.5.B.5, the appropriate national representative will have thirty (30) days from receipt of notification to make a determination as to whether or not to initiate a national level dispute." Pl.'s Mem. Opp'n, Bell Decl., Ex. 6 (Memorandum of Understanding).
The defendant submitted two separate referrals to its national representative for consideration as to the existence of an interpretive issue pertaining to the grievance between the parties. Def.'s Mem. at 6. In response to the first referral of November 29, 2007, Def.'s Mem., Hercules Decl., Ex. 3 (Nov. 29, 2007 Letter from John W. Dockins to Kenneth DeHate), the defendant's representative did not file a national level dispute within the thirty-day time period required by the Memorandum of Understanding, id. at 6. The grievance thereafter returned to the district level under Arbitrator Henderson. Pl.'s Stmt. ¶ 15. However, with the defendant's second referral letter to its national representative, dated February 1, 2008, and followed by its February 11, 2008 letter to the plaintiff stating that "the [defendant was] initiating an interpretive dispute at the fourth step of the grievance/arbitration procedures . . . based on the arbitrator's apparent willingness to re-open the case for the explicit purpose of changing his rendered award[,]" the Step 4 process was initiated. Def.'s Mem., Hercules Decl., Ex. 9 (Feb. 11, 2008 Letter from Mary Hercules to William Burrus).
While the plaintiffs contend that this second referral to the national level was improper because "a right to return the case to the national level a second time is insupportable," Pl.'s Mem. Opp'n at 13, that position is not supported by the parties' agreements. See United Paperworkers, 484 U.S. at 36. Acceptance of the plaintiff's position would require the Court to interpret the National Agreement and Memorandum of Understanding as including a one-time limitation on the parties' opportunity to submit a dispute to the national level at Step 4 of the process, which neither the National Agreement nor the Memorandum of Understanding expressly prohibit. Absent any evidence that the agreements between the parties were not bargained-for contracts, the Court will not interfere with the terms of their agreements by reading into them prohibitions that are not expressly provided, 14 Penn Plaza LLC v. Pyett, ___ U.S. ___, ___, 129 S. Ct. 1456, 1464 (2009) ("Courts generally may not interfere in th[e] bargained-for exchange [of an arbitration provision in a collective-bargaining agreement]."), as doing so would depart from a plain reading of the agreements, see Carey Can., Inc. v. Colum. Cas. Co., 940 F.2d 1548, 1556 ("If the language found in the [contract] is not ambiguous or otherwise susceptible of more than one meaning, the court's duty is to apply the plain meaning of the words and phrases used to the facts before it. The court is without authority to rewrite the policy or add meaning to it that is not there."). A plain and common-sense reading of the National Agreement and Memorandum of Understanding allows for multiple referrals of interpretive issues, and it appears that Arbitrator Henderson was of the opinion that the process was at Step 4 when he indicated that he would take no further action in the case "until further notice." See Pl.'s Mem. Opp'n, Bell Decl., Ex. 14 (Mar. 11, 2008 Letter from Joe H. Henderson to Kenneth DeHate, Omar M. Gonzales, Nels W. Truelson, and Steven J. Zamanakos). The Court is therefore without authority to find that the defendant's referral of the parties' dispute to Step 4 of the grievance-arbitration procedure was improper, and accordingly this matter will be returned to the bargained-for grievance process for resolution of the dispute pursuant to the National Agreement's Step 4 procedures.
While, as the plaintiff states, an agreement without any limits on the number of referral permitted by a party could in theory be abused by a party seeking continuous or frivolous referrals, see Pl.'s Mem. Opp'n at 13, there is no indication in the record that would cause the Court conclude that any such abuse was committed here.
The plaintiff's position that the defendant's characterization of the dispute as interpretive is legally or substantively unsupportable, Pl.'s Mem. Opp'n at 13, is not a question for this Court to address but rather is a question for the national arbitrator at Step 4 of the process because addressing the issue will necessary require weighing the merits of the underlying grievance. See United Paperworkers, 484 U.S. at 36 (stating that it is not for the Court to "weigh the merits of the grievance . . . or determin[e] whether there is particular language in the written instrument which will support the claim." (citing Am. Mfg. Co., 363 U.S. at 567-68)).
For the foregoing reasons, the defendant's motion for summary judgment must be granted and the plaintiff's motion for summary judgment must be denied.

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The Complainant is LPG SYSTEMS of Valence, France, represented by Cabinet Laurent & Charras, France.
The Respondents are Mr. Jeff Yan of Qingdao, Shandong, the People's Republic of China (“1st Respondent”), represented by himself and Jerry of Qingdao, Shangdong, the People's Republic of China (“2nd Respondent”) also self represented.
The disputed domain name <endermolift.com> is registered with Xiamen eName Network Technology Corporation Limited dba eName Corp (“eName Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 12, 2010. On March 15, 2010, the Center transmitted by email to GoDaddy.com, Inc. (“GoDaddy Registrar”) a request for registrar verification in connection with the disputed domain name. On the same day, GoDaddy Registrar transmitted by email to the Center indicating that it was no longer the registrar of the disputed domain name. The Registrar now is eName Registrar. On March 16, 2010, the Center transmitted by email to eName Registrar a request for registrar verification in connection with the disputed domain name. On the same day, eName Registrar transmitted by email to the Center its verification response confirming that the 2nd Respondent Jerry was then listed as registrant (which is different from the registrant stated in the original Complaint as filed by the Complainant on March 12, 2010 in which only the 1st Respondent Jeff Yan was named) and providing the contact details. On March 18, 2010, the Center transmitted by emails to the above-mentioned two registrars regarding the apparent transfer of the disputed domain name after the Complaint was filed. On March 24, 2010, eName Registrar confirmed by email that it would not be possible to restore the registrant information to the previous registrant Mr. Jeff Yan. On March 29, 2010, the Center transmitted by email to the Complainant regarding the change of the registrant information. On April 1, 2010, the Complainant filed an amendment to the Complaint naming the 2nd Respondent Jerry as a party to these proceedings.
On March 29, 2010, the Center also transmitted by email to the parties regarding the language of proceedings. On April 1, 2010, the Complainant submitted a request that English be the language of proceedings. On April 1, 2010 the 2nd Respondent requested that simplified Chinese be used for setting out the Complaint. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondents of the Complaint, and the proceedings commenced on April 6, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 26, 2010. The 2nd Respondent sent an email Response on April 25, 2010.
The Center appointed C. K. Kwong as the sole panelist in this matter on May 14, 2010. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
On May 28, 2010, due to exceptional circumstances, the Panel extended the time for its decision.
The Complainant is the owner of the trade mark consisting of the word ENDERMOLIFT. Application for registration of this mark was filed in France under trade mark application no. 093650862 on May 15, 2009 which was published on June 19, 2009 and resulted in a registration on December 11, 2009 (Annex 5 to the Complaint).
The disputed domain name <endermolift.com> was registered on August 30, 2009 more than 3 months after the filing of the Complainant's trade mark ENDERMOLIFT in France but before the aforesaid publication and registration dates of the said trade mark.
The Complainant registered its domain name <endermolift.fr> on May 19, 2009 (Annex 6 to the Complaint) which was more than 3 months before the registration of the disputed domain name.
Other than the particulars shown on the print outs of the database searches conducted by the Complainant of the WhoIs database (Annexes 1 and 14 to the Complaint) in relation to the 1st Respondent and the WhoIs database search results provided by the Center, there is no evidence in the case file concerning the background of the Respondents and their businesses.
The Complainant has rights in the trade mark ENDERMOLIFT which it registered in France. The disputed domain name <endermolift.com> is identical to the trade mark ENDERMOLIFT. The Complainant also alleges that the disputed domain name <endermolift.com> is identical to that of the website it operates, namely <endermolift.fr>.
The trade mark ENDERMOLIFT is a word invented by the Complainant which no other traders will legitimately choose without an ulterior motive. The trade mark has not been used by others except the Complainant and it has not licensed or otherwise permitted others to use the mark. The disputed domain name has also not been used by its registrant.
The disputed domain name was registered on August 30, 2009 shortly after the publication of the Complainant's French trade mark on June 19, 2009 and only two days later it was offered to the Complainant by e-mail on September 2, 2009 apparently with the signatory describing himself as Jeff who claimed to have the disputed domain name <endermolift.com> (Annex 8 to the Complaint). There was a subsequent e-mail on September 24, 2009 (Annex 10 to the Complaint) from another person who described himself as Jack offering the disputed domain name to the Complainant at EUR 6500. Even by March 14, 2010, there was an e-mail by a person who called himself Lee/Lee Peng offering the disputed domain name to the Complainant at a reduced price of EUR 2200 (Annex 1C to the Amended Complaint).
The 1st Respondent owns about 241 other domain names and its e-mail address [...@yahoo.com] is a contact on the WhoIs record of 341 domains (Annex 14).
The disputed domain name was registered for the purpose of attracting, for commercial gain, Internet users to a SEDO Parking website by creating a likelihood of confusion with the Complainant's trade mark ENDERMOLIFT and domain name <endermolift.fr>.
The disputed domain name was transferred from the 1st Respondent and GoDaddy Registrar to the 2nd Respondent and eName Registrar after the Complaint was filed with the Center and service of a copy of the Complaint on the 1st Respondent, all with a view to evading or disrupting these administrative proceedings which constitute cyber-flight.
The 1st Respondent did not reply to the Complainant's contentions.
Registration of the disputed domain name on August 30, 2009 was more than 3 months earlier than the Complainant's registration for the mark ENDERMOLIFT in France on December 11, 2009.
Up to the date of his e-mail, the Complainant has not registered the trade mark in China.
The Claimant's website at “www.endermolift.fr” went online only in March 2010 but had always been in a dormant “under construction” state before that time.
The Respondents have not sold the disputed domain name. All the e-mails referred to in the Complaint were not sent from any of the e-mail addresses as shown in the WhoIs database relating to the disputed domain name.
The disputed domain name was purchased mainly for self use in selling products in China.
Before embarking on an analysis of the three elements under paragraph 4(a) of the Policy, it is necessary to deal with various issues.
In this connection, it will be helpful to set out the exact time at which various events took place.
The Center has confirmed that the Complaint was filed by the Complainant on March 12, 2010 and received by the Center electronically at 15.52 hours Geneva time corresponding to (i) 6.52 hours in Scottsdale where Godaddy Registrar is situated (ii) 22.52 hours Beijing time which is the time zone where the Respondents and eName Registrar operate and (iii) 14.52 hours Greenwich Mean Time (“GMT”).
According to the e-mail from the 1st Respondent on March 16, 2010 to the Complainant (Annex 1D to the Amended Complaint), a copy of the Complaint was delivered to the e-mail address of the 1st Respondent as shown on the WhoIs database on March 12, 2010 at 22.54 hours Beijing time which was GMT 14.54 hours on the same day ie. 2 minutes after the Center received a copy of the Complaint electronically.
By its e-mail advice to the Center on March 18, 2010, GoDaddy Registrar advised that they did not receive notification of the Complaint until they received the Verification Notice and Complaint on Monday, March 15, 2010 which was already after the disputed domain name had been transferred to eName Registrar as further described below.
According to the advice from both GoDaddy Registrar and eName Registrar, transfer of the disputed domain name occurred at 14.33 hours Arizona time on March 12, 2010 which corresponds to (i) 22.33 hours Geneva time on the same day and (ii) 4.30 hours Beijing time the next day ie. March 13, 2010 and (iii) 21.33 hours GMT March 12, 2010.
The Center requested Registrar verification from eName Registrar on March 16, 2010 and following the events described in the procedural history under Section 3 above, the Center formally notified the Respondents that the proceedings commenced on April 6, 2010 and at the same time informed them of the Center's decision to, inter alia, accept the Complaint as filed in English despite the registration agreement being indicated as being in Chinese but with the proviso that the Panel has authority under paragraph 11 of the Rules to ultimately determine the language of proceedings and write a decision in either language, or request translation of either party's submissions.
(b) In less than 7 hours, the transfer of the disputed domain name to the 2nd Respondent took place at the early hours of 4.33 hours Beijing time the next day.
(c) The 2nd Respondent apparently resides in the same province and city as the 1st Respondent.
(d) The name of the 2nd Respondent registrant Jerry apparently does not include a family or surname.
(e) There has been no explanation from any of the Respondents at all and this Panel finds it inconceivable that there can be any bona fide purchaser suddenly available to purchase the disputed domain name from the 1st Respondent under a normal arm's length transaction without notice of the Complaint in the odd midnight and early hours striding March 12 and 13, 2010 Beijing time.
(f) There are also other parties emerging in the aforesaid e-mails which contain offers of the disputed domain name to the Complainant at EUR 6500 and EUR 2200. While the 2nd Respondent suggested in its e-mail Response of April 25, 2010 to the Center that those e-mails were sent from e-mail addresses different from those as shown in the relevant WhoIs database relevant to the disputed domain name and presumably also that they had no connections with any of the Respondents, upon reading Annexes 8, 10 and 1C to the Complaint/Amended Complaint one cannot help but to find that they are all related.
(i) The e-mail from Jeff/ Jack Lee with a certain e-mail at […@yahoo.com] on September 2, 2009 to the Complainant [Annex 8 to the Complaint] said “we have www.endermolift.com” and “we can really consider selling it out if you are interested in it”.
(ii) The further e-mail from Jack Lee of the said e-mail at vissdaa@yahoo.com on September 24 (Annex 10) referred to the disputed domain name and sent to the e-mail address of the Complainant's in-house legal counsel who issued the said cease and desist letter of September 17, 2009 to Mr. Jeff Yan (Annex 9 to the Complaint) in response to the invitation contained in Annex 8. It said “Please let us know if you can cover our costs of EUR 6500 for this domain”.
(iii) After the Complaint was served on the 1st Respondent on March 12, 2010, there was an e-mail offer from Lee or Leepeng from a certain […@gmail.com] email address on March 14, 2010 (Annex 1C) which said: ”We can drop the price to EUR 2200” and “if you want to go to WIPO, we will be there waiting for you”. It is also note worthy that in this e-mail, the 1st argument made by the 2nd Respondent in his said e-mail to the Center dated April 25, 2010 to the effect that the Complainant's trade mark was registered on December 11, 2009 while sender's domain name was registered on August 30, 2009 three months earlier than the Complainant's trade mark was rehearsed in English as it corresponds to the 1st argument made by the 2nd Respondent in his Chinese e-mail Response of April 25, 2010. As the Complaint was only served upon the 1st Respondent (and not yet on the 2nd Respondent at that time), it appears that Lee/Leepeng was connected with the senders of the previous e-mails (Annexes 8 and 10) and also was already aware of filing of the Complaint but which was only served on the 1st Respondent then.
In the Panel's assessment, the wordings of the e-mails shown in Annexes 8, 10 and 1C suggest that their senders have ownership or otherwise in control of the disputed domain name which enabled them to transfer it to the Complainant upon its acceptance of the offer. Such persons must either be the 1st Respondent or its nominee with full knowledge of the relevant facts. It also supports the conclusion that the 2nd Respondent must have knowledge of the Complainant.
The Panel finds that these unusual circumstances inevitably point to the irresistible conclusion that the 2nd Respondent is effectively a nominee of the 1st Respondent who must be aware of the filing of the Complaint with the Center and service of the Complaint on the 1st Respondent. Both Respondents give the impression of acting in concert within a short time to achieve a particular purpose, in this case to transfer the disputed domain name (a) out of the ownership of the 1st Respondent to the 2nd Respondent who was conveniently available and (b) and from Godaddy Registrar to eName Registrar, to facilitate the evasion and obstruction of these administrative proceedings.
The Panel further concludes that the 1st Respondent remains the true and beneficial owner of the disputed domain name and remains a proper party to these proceedings. The 2nd Respondent, being the nominee or perhaps even the 1st Respondent himself in a different name currently holding the disputed domain name is also properly included as a party to these proceedings. The Center has properly verified that the Complaint satisfies the formal requirements of the Policy, Rules and Supplemental Rules.
British Broadcasting Corporation v. Data Art Corporation/Stoneybrook, WIPO Case No. D2000-0683.
Paragraph 8 of the Policy prohibits, inter alia, under paragraph (a) transfer of the domain name registration to another holder and under paragraph (b) transfer of the disputed domain name registration to another registrar during a pending administrative proceeding.
There is no definition of what is meant by “pending” in the Policy and the Rules. Rule 3(a) of the Rules provides that “any person or entity may initiate an administrative proceeding by submitting a complaint in accordance with the Policy and these Rules to any provider….”. It seems tolerably clear from such wording that proceedings are initiated upon the submission of a complaint with the provider. Rule 4(c) of the Rules provides that the “date of commencement of the administrative proceeding shall be the date on which the provider completes its responsibilities under paragraph 2(a) in connection with forwarding the Complaint to the Respondents”. The date of commencement governs various time lines which is calculated from the date of commencement such as the time for filing a response under Rule 5(a) of the Rules.
This Panel is of the view that the Rules distinguish between the initiation of proceedings and the commencement of proceedings as described above for different purposes and under different contexts. However, it is also tolerably clear that the administrative proceedings begin to be “pending” from the point of initiation as described under Rule 3(a) and is certainly kept pending at the time of commencement of proceedings as described under Rule 4(c) and remain so until the conclusion of the proceedings. There are previous UDRP decisions in support of this interpretation. Patti Lupone v. XC2/Moniker Online Services LLC, WIPO Case No. D2008-0450.
In the circumstances, the transfer of the disputed domain name after the submission of the Complaint by the Complainant to the Center on March 12, 2010 is found to be in violation of both paragraphs 8(a) and 8(b) of the Policy and to constitute cyberflight. Canwest Mediaworks Publications Inc. v. Laksh Internet Solutions Private Limited/SA c/o FP, WIPO Case No. D2008-0687.
Under paragraph 8(a) of the Policy, the Registrar has the right to cancel any transfer of the domain name. In response to the Centre's invitation to have the registration particulars restored subject to the agreement of both Registrars, by their e-mail to the Centre on March 23, 2010, eName Registrar advised that they were not in a position to transfer the disputed domain name back to Godaddy Registrar.
The Panel has no power to order the Registrar to cancel the transfer of the disputed domain name despite breaches of paragraph 8 of the Policy. Humana Inc. v. CDN Properties Incorporated, WIPO Case No. D2008-1688; Kostritzer Schwartzbierbrauerei v. Macros Telekom Corp. WIPO Case No. D2001-0936.
Rule 10 of the Rules provides that “The Panel shall conduct the administrative proceeding in such manner as it considers appropriate in accordance with the Policy and these Rules”. The Panel has wide powers and discretion to do so in so far as it is not done in a way which is contrary to the Policy and the Rules. Mrs. Eva Padberg v. Eurobox Ltd. WIPO Case. No.D2007-1886. Following its finding of cyber-flight under above, the Panel further finds that the registrar from which the disputed domain name registration was transferred remains to be the registrar for the purposes of Rule 3(b)(xiii) referred to under the next Section and to the extent necessary, the transfer of the disputed main name was invalid for this purpose. Given the panel's findings under Section 6A to the effect that the 1st Respondent remains the true and beneficial owner of the disputed domain name, there is no prejudice to the 1st Respondent.
Rule 1 of the Rules defines “mutual jurisdiction” to mean a court jurisdiction at the location of either (a) the principle office of the Registrar or (b) domain-name holder's address as shown for the registration of the domain name in Registrar's WhoIs database at the time the Complaint is submitted to the provider.
In its Amended Complaint filed on April 1, 2010, the Complainant has not changed its election of the jurisdiction of the Court of Arizona, USA under Rule 3(b)(xiii) as the mutual jurisdiction to which the Complainant will submit, with respect to any challenges that may be made by the Respondents to a decision by the Administrative Panel to transfer or cancel the domain name that is the subject of this Complaint.
Following the Panel's finding under Section 6 B above to the effect that the GoDaddy Registrar remains the registrar, the election of mutual jurisdiction by the Complainant remains valid. In a cyber-flight situation, the spirit of the Policy and the Rules supports the interpretation that the registrar should be the registrar “at the time the Complaint is submitted to the provider” even though those words are not expressly repeated to qualify the first limb of that definition or a comma may be missing after the word “database” in that definition. Mrs. Eva Padberg v. Eurobox Ltd. supra.
The Complainant requested that these proceedings be conducted in English while the 2 nd Respondent repeatedly maintained by its e-mails on April 1 & 25, 2010 that the Chinese language should be used on the grounds that both the 2nd Respondent and eName Registrar are in China, he does not read English and a lot of efforts have to be made to translate the Complaint to understand it briefly.
Taking all circumstances into account including (a) the Panel's finding to the effect that 2nd Respondent is a nominee of the 1st Respondent which has entered into a registration agreement with GoDaddy Registrar in English (Annex 3) (b) the e-mail correspondence with the Complainant on behalf of either the 1st Respondent and/or the 2nd Respondent as shown in Annexes 8, 10 and 1C were all conducted in English (c) all the relevant parties have English names and (d) the disputed domain name is in English, the Panel is satisfied that there is no prejudice or unfairness to the Respondent for these proceedings to be conducted in English and for its decision to be rendered in English. Accordingly, the Panel determines that the language of this administrative proceeding should be English.
The 1st Respondent has not replied to the Complaint. The 2nd Respondent has filed an e-mail Response on April 25, 2010. In any case, the failure of a respondent to respond does not automatically result in a favourable decision to the complainant, which is specifically required under paragraph 4(a) of the Policy to establish each of the three elements as provided therein. See The Vanguard Group, Inc. v. Lorna King, WIPO Case No. D2002-1064 and Berlitz Investment Corp. v. Stefan Tinculescu, WIPO Case No. D2003-0465.
On the evidence available before the Panel, it has no hesitation in finding that the Complainant has rights in the trade mark ENDERMOLIFT by reason of its French trade mark registration as recited in Section 4 above. The fact that it was registered after the registration of the disputed domain name or that the trade mark has no corresponding trade mark registration in China does not prevent the Complainant from successfully establishing this component of the first element.
Furthermore, the Panel finds that the disputed domain name is substantially identical or confusingly similar to the Complainant's trade mark ENDERMOLIFT despite the addition of the generic top-level domain “.com”. After removing the generic top-level domain, only the word “endermolift” is left in its entirety. It is well-established practice to disregard the top-level part of a domain name, when assessing whether a domain name is identical or confusingly similar to the mark in issue. Société Anonyme des Eaux Minerales d'Evian and Société des Eaux de Volvic v. Beroca Holdings B.V.I. Limited, WIPO Case No. D2008-0416.
In the present case, the Complainant has asserted filing for registration and use of the registered trade mark ENDERMOLIFT more than 3 months prior to the Respondent's registration of the disputed domain name <endermolift.com> on August 30, 2009. Further, the Panel notes that the names of the Respondents being registrants do not correspond in any way with the disputed domain name. There is no evidence put before the Panel to show any of the Respondents are commonly known as <endermolift.com>. There is no evidence available to demonstrate any use at all of the disputed domain name by the Respondents.
There is no possible explanation as to why it was necessary for the Respondent to adopt the word “endermolift” in its domain name.
There is no evidence that the disputed domain name has been actively used by the Respondents as a website for either a legitimate noncommercial or fair use purpose, or in connection with a bona fide offering of goods or services. On the other hand, there is ample evidence detailed under Sections 5A and 6A above that the Respondents whether by themselves or their nominees have repeatedly offered to sell the disputed domain name to the Complainant for valuable consideration in excess of their out of pocket costs directly related to the registration of the disputed domain name. The Panel accordingly finds that, inter alia, the circumstances of paragraph 4(b)(i) of the Policy are present. It is also not possible to think of any plausible, genuine use of the disputed domain name by the Respondents.
Other than the above, the conduct of the Respondents as described under Sections 6A and 6B above constitutes cyber-flight in serious breaches of paragraph 8 of the Policy on the basis of which the element of bad faith can also be established. PREPADOM v. Domain Drop S.A. (PREPADOM-COM-DOM), WIPO Case No. D2006-0917.
The Panel accordingly finds that the disputed domain name has been registered and is being used in bad faith under paragraph 4(a)(iii) of the Policy.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <endermolift.com> be transferred to the Complainant.

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application no. 093650862
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A mining right is a powerful, and not commonly understood, concept that is all too often watered down by agency regulatory interference and exacerbated by the lack of knowledge from most of the mining community in the 21st century. This right to mine is an action also referred to as a “right of self-initiation.” This right to mine is an action (prospecting and extraction), as distinguished from idle ownership. Very few people understand the difference between a right (granted by Congress under statute) as distinguished from a permit (granted by an agency through regulation). One’s right to choose to actively engage in mining stems from the 1866 and 1872 mining law grant from Congress (codified at 30 U.S.C. sections 22-54).
As an example, the Forest Service is a creature of an act of Congress charged with the responsibility and stewardship of the National Forests and the Deptartment of Interior was charged by Congress to manage the rest of the public lands. The miner or miners operating under the Mining Act should operate on a level playing field just as the Forest Service is on a level playing field with the BLM and Park Service. Have you ever heard of the Forest Service telling the BLM that they cannot do their job? In other words, can the Forest Service tell a miner he cannot mine on land open to mineral entry? The answer is “no.” Can they ask to help mitigate the surface impacts? Yes (according to the 9th Circuit Court), so long as their actions do not unreasonably prohibit, hinder, or clash with the miner’s property right to mine (see 30 U.S.C. §612(b)). The same interaction can apply to state agencies and their interplay with the miner on federally managed lands if the state agency has a memorandum of understanding with the federal surface management agency such as the US Forest Service (see 16 U.S.C. §559g(c)).
In short -- a state or federal agency action and its associate approval that is optional. In other words, the agency has the authority to grant a go ahead or deny it. Why is this “discretionary” agency action language so important? Answer: because environmental laws only apply in this setting, namely the National Environmental Policy Act (NEPA-federal), the Endangered Species Act (ESA), California Environmental Quality Act (CEQA-state), and the Clean Water Act.
More importantly, is the miner subject to discretionary agency action in a true permit scenario? The answer is “no,” unless the miner willingly consents to it in writing, thereby waiving an unlawful jurisdiction by the agency. The miner has the right to mine, therefore rendering any other agency relationship to one of non-discretionary advisement and notice, which is a huge distinction as compared to a discretionary permit. This distinction is very important in light of the ongoing California Dept. of Fish & Game (DFG) and Karuk litigation.
Apparently the mining community has forgotten the important points in the Karuk v. Forest Service case where the tribe had lost and has now overcome primarily because the miners failed to point out to the court (in the DFG cases) and fully understand the power of the mining right and the fact the DFG’s relationship with the miner is non-discretionary in character, that by definition should not consent to a permit system. A permit system has been allowed to exist by the willing consent of the permittees. Those individuals dredging under the federal mining law upon federally managed lands open to mineral entry are exempt from a permissive system like the one set up by DFG. However, if you label yourself a recreationalist dredger instead of a miner, or are on private or state lands, you are subject to the DFG permitting scheme.
Unfortunately, in June of 2012, the 9th Circuit (en banc) ruled in Karuk v. Forest Service (681 F.3d 1006) that the Forest Service is exercising discretion in processing a Notice of Intent, ignoring 30 years of precedent and standing the rule of law on its head. This 9th Circuit ruling erroneously means that there is no significant difference between a decision not to act and an affirmative authorization. In holding that a miner's submission of an NOI triggers section 7 consultation under the ESA, the majority discourages miners from discussing their proposed activities with the Forest Service to voluntarily reduce their impact on the environment, and rather encourages miners to make their own determination that their activities are not likely to “cause significant disturbance of surface resources,” (36 C.F.R. § 228.4(a)) and thus no NOI need be filed. This is not the first time the 9th Circuit has created law out of thin air and ignored the U.S. Supreme Court.
“Agency discretion presumes that an agency can exercise “judgment” in connection with a particular action. See Citizens to Preserve Overton Park, Inc. v. Volpe,401 U.S. 402, 415-416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); see also Random House Dictionary of the English Language 411 (unabridged ed.1967) (“discretion” defined as “the power or right to decide or act according to one's own judgment; freedom of judgment or choice”). As the mandatory language of § 402(b) itself illustrates, not every action authorized, funded, or carried out by a federal agency is a product of that agency's exercise of discretion.
Generally speaking, when this prohibition scenario occurs, the agency is usually violating their own rules and federal statute. Miners must press the agencies and the courts with this question: Where do the mining rights end (Under the Mining Acts 30 U.S.C. §22 – 54) and the regulatory obligations begin? And in the case of the Forest Service: What is significant surface resource disturbance? The distinction between "reasonable regulation" and "prohibition" offers locators an avenue to resist the application of rules that severely impact their operations, but the miner must assert unreasonableness at the outset and pursue those objections through agency and judicial review processes. And, as in other instances, intricate semantic arguments seldom prevail if an ordinary, common sense interpretation is available.
At this point it is recommended that the miner contact Public Lands for the People to help the miner wade through the process effectively and to challenge the problem agency in a lawful manner.
There are many more cases that make reference to the distinction between a right under the mining law and a permissive system, but miners will lose cases unless this concept is fully understood and exercised. It is fair to say the miner does not have an unfettered right to mine irrespective of substantive environmental consequences - as was pointed out in the infamous 1884 Sawyer decision that banned hydraulic mine debris.
Presently, it is this writer’s opinion that environmental laws were written not to apply to non-discretionary agency advisements that encompass mitigation recommendations, which are commonly misunderstood and accepted as a permit system of today.


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Philip Services Corporation and Luntz Corporation v. Andrew Luntz, et al.
Novacare Holdings, Inc. v. Mariner Post-Acute Network, Inc., et al.
TMP Worldwide, Inc. v. Inacom Corp.
High Strength Steel, Inc., Official Committee of Unsecured Creditors v. Gerald J. Lozinski, et al.
ICG Communications, Inc., et al.
Pharmaceutical Research Associates, Inc., et. al. v. Innovative Clinical Solutions, Ltd.
U.S. Office Products, Inc., et al. v. Allied Office Supply Inc.
U.S. Office Products, Inc., et al.
Loewen Group International, Inc. v. Patricia Gilligan, et al.
Physician Health Corporation, et al.
Harnischfeger Industries, Inc., et al.
Kaiser Group International, Inc., et al.
Trans World Airlines Inc., et al.

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1. Richard2 Wickett (John?1) was born Abt 1734 in Pos. Buckfastleigh, Devon ENG, and died 20 Apr 1803 in Pancrasweek, Devon ENG. He married Mary Sanders 25 Mar 1762 in Pyworthy, Devon, ENG. She was born Abt 1735 in Prob. Devon ENG, and died Abt 19 May 1812 in Pancrasweek, Devon ENG.
Note: Birthplace of Richard Wickett and names of his parents are speculation only.
i. Thomasin3 Wickett, b. Abt 1769, Bp: Pancrasweek, Devon, ENG; m. Abel Beckley, 6 Apr 1791, Pancrasweek, Devon, ENG; b. England.
ii. Mary Wickett, b. Abt 1773, Bp: Pancrasweek, Devon, ENG; m. William Serjeant, 28 Jun 1797, Pancrasweek, Devon, ENG; b. Stratton, Devon, ENG.
iii. Anne Wickett, b. Abt 1775, Bp: Pancrasweek, Devon, ENG; d. 2 Jan 1778, Bur: Pancrasweek, Devon, ENG.
iv. Anne Wickett, b. Abt 1778, Bp: Pancrasweek, Devon, ENG.
v. John Wickett, b. Abt 1781, Bp: Pancrasweek, Devon, ENG; m. Mary Dayman, 1 Jul 1807, Pancrasweek, Devon, ENG.
vi. Richard Wickett, b. Abt 1783, Bp: Pancrasweek, Devon, ENG; m. Mary Hoar, 1 Aug 1810, Pancrasweek, Devon, ENG.
2. vii. William Wickett, b. Abt 1784, Baptized Pancrasweek, Devon, ENG; d. Aft. 1851, England.
2. William3 Wickett (Richard2, John?1) was born Abt 1784 in Baptized Pancrasweek, Devon, ENG, and died Aft. 1851 in England. He married Sarah Lane 26 Jun 1809 in Pancrasweek, Devon, ENG, daughter of Thomas? Lane and Joan Lane. She was born Abt 1786 in Pywothy, Devon, ENG, and died Aft. 1851 in England.
3. i. William4 Wickett, b. Abt 1810, Pancrasweek, Devon, ENG; d. 31 Jul 1886, Northam, Lot13, PEI, CAN.
ii. Richard Wickett, b. 31 Jan 1818, Pancrasweek, Devon, ENG.
iii. Richard Wickett, b. 25 Jun 1820.
iv. Sarah Wickett, b. 23 May 1824, Pancrasweek, Devon, ENG.
v. Ann Wickett, b. 19 Jul 1827, Pancrasweek, Devon, ENG.
3. William4 Wickett (William3, Richard2, John?1) was born Abt 1810 in Pancrasweek, Devon, ENG, and died 31 Jul 1886 in Northam, Lot13, PEI, CAN. He married Elizabeth Moore 14 Oct 1829 in Pancrasweek, Devon, ENG, daughter of Richard Moor and Jane Dayman. She was born Abt 1810 in Baptized Pancrasweek, Devon, ENG, and died 20 Apr 1883 in Northam, Lot13, PEI, CAN.
4. i. Henry5 Wickett, b. 29 Jan 1830, Pancrasweek, Devon, England; d. 19 May 1881, PEI, Canada.
ii. Ann Wickett, b. 16 Jan 1833, Pancrasweek, Devon, ENG.
5. iii. Mary Elizabeth Wickett, b. 6 Dec 1834, Kilkhampton, Cornwall, ENG; d. 1926, PEI, CAN.
6. iv. Sarah Wickett, b. Abt 1835, England.
v. Richard Wickett, b. 11 Jun 1836, Kilkhampton, Cornwall, ENG; m. Mary Jane Ramsay, 22 Jan 1869, PEI, CAN.
7. vi. Lewis William Wickett, b. Abt 1838, Kilkhampton, Cornwall, ENG; d. Abt Mar 1930, London, Ontario, CAN.
vii. John A. Wickett, b. 1844, Prob. Thornbury, Devon, ENG; d. Abt 31 Mar 1868, At/Near Northam, PEI, CAN.
8. viii. Richard King Wickett, b. 21 Jan 1846, Thornbury, Devon, ENG; d. 8 Nov 1922, Warwick (Norwood), RI.
9. ix. Francis Thomas Wickett, b. 1850, Pancrasweek, Devon, ENG; d. Bef. Apr 1891.
x. Thomas Wickett, b. Aft. 1850.
4. Henry5 Wickett (William4, William3, Richard2, John?1) was born 29 Jan 1830 in Pancrasweek, Devon, England, and died 19 May 1881 in PEI, Canada. He married Mary Ann Dyment 10 Jul 1853 in PEI, Canada, daughter of Humphrey Dyment and Mary Ashton. She was born 8 May 1836 in PEI, Canada, and died 14 Sep 1896 in Old Town, Maine.
10. i. Humphrey Dyment6 Wickett, b. 26 Jan 1854, Northam, Lot13, PEI, Canada; d. 4 Jan 1941, Old Town, Maine.
11. ii. William Henry Wickett, b. 13 Sep 1855, Northam, PEI, Canada; d. 2 Feb 1923, Old Town, Maine.
12. iii. Lewis Albert Wickett, b. 28 Dec 1857, Northam, Lot 13, PEI Canada; d. 27 Oct 1931, PEI, Canada.
13. iv. Serenah Alice Wickett, b. 21 Apr 1861, PEI, Canada; d. 29 Oct 1950, PEI, Canada.
14. v. Eleanor Josephine Wickett, b. 24 Jun 1863, Northam, PEI, Canada; d. 31 Oct 1944, PEI, Canada.
15. vi. Thomas Adams Wickett, b. 5 Aug 1865, Northam, PEI, Canada; d. 15 Sep 1928, Old Town (Stillwater), Maine.
16. vii. Penrose Havelock Wickett, b. 9 Jul 1867, Northam, Lot 13, PEI, Canada; d. 14 Mar 1940, Old Town, Maine.
17. viii. Sarah Ann Wickett, b. 1869, PEI, Canada; d. 1903, PEI, Canada.
18. ix. Sophia Jennie Wickett, b. 29 Jun 1871, PEI, Canada; d. 17 Dec 1938, Old Town, Maine.
19. x. Alfred Edward Wickett, b. 19 Aug 1873, Granville, Lot 21, PEI, Canada; d. 14 Sep 1943, Kirkwood, Missouri.
20. xi. Fannie Lavenia Wickett, b. 23 May 1876, PEI, Canada; d. 9 May 1950.
21. xii. Richard Herbert Wickett, b. 5 Apr 1878, Granville, PEI, Canada; d. 3 Sep 1932, Fredericton, York Co., NB, Canada.
5. Mary Elizabeth5 Wickett (William4, William3, Richard2, John?1) was born 6 Dec 1834 in Kilkhampton, Cornwall, ENG, and died 1926 in PEI, CAN. She married Elias Cann 9 Mar 1857 in PEI, CAN. He was born 1832 in England, and died 25 Jan 1887 in Northam, Lot13, PEI, CAN.
i. Cephas C.6 Cann, b. 1860, PEI, CAN; d. 1915, PEI, CAN; m. Margaret Hibbett; b. 1860; d. 1934.
ii. Ann L. Cann, b. Abt 1864, PEI, CAN.
iii. Angelina M. Cann, b. Abt 1866, PEI, CAN.
iv. Sarah Jane Cann, b. Abt 1867, PEI, CAN.
v. William H. Cann, b. Abt 1874, PEI, CAN.
22. vi. Hubert William Cann, b. 1890; d. 1930, Prob. Canada.
6. Sarah5 Wickett (William4, William3, Richard2, John?1) was born Abt 1835 in England. She married Thomas Baglow 28 Jan 1857 in PEI, CAN. He died Abt 1 Apr 1881 in PEI, CAN.
i. William Henry6 Baglow, b. Abt 1857, PEI, CAN.
ii. Sarah Caroline Baglow, b. Abt 1859, PEI, CAN.
iii. Elise Ann Baglow, b. Abt 1861, PEI, CAN.
iv. Evangline Baglow, b. Abt 1862, PEI, CAN.
v. Lewis R. Baglow, b. Abt 1864, PEI, CAN.
vi. Thomas B. Baglow, b. Abt 1865, PEI, CAN.
vii. John Wickett Baglow, b. Abt 1866, PEI, CAN.
viii. Mary Jane Baglow, b. Abt 1868, PEI, CAN.
ix. James A. Baglow, b. Abt 1870, PEI, CAN.
x. Susan M. Baglow, b. Abt 1871, PEI, CAN.
xi. Laura A. Baglow, b. Abt 1873, PEI, CAN.
xii. George C. Baglow, b. Abt 1875, PEI, CAN.
7. Lewis William5 Wickett (William4, William3, Richard2, John?1) was born Abt 1838 in Kilkhampton, Cornwall, ENG, and died Abt Mar 1930 in London, Ontario, CAN. He married Sarah Ann Whitlock Bef. 1869. She was born 1846 in England, and died 1928.
i. Female [Annie]6 Wickett, b. Abt 1869, Ontario, Canada.
ii. Lewis William Wickett, b. Abt 1870, Ontario, Canada.
iii. Albert H. Wickett, b. Abt 1872, Canada.
iv. John F. Wickett, b. Abt 1874, Canada.
v. Minnie A. Wickett, b. Abt 1878, Canada.
vi. Frederick W. Wickett, b. Bet. 1879 - 1880, Ohio.
vii. Cephas Hutchings Wickett, b. 1881; d. 1918.
8. Richard King5 Wickett (William4, William3, Richard2, John?1) was born 21 Jan 1846 in Thornbury, Devon, ENG, and died 8 Nov 1922 in Warwick (Norwood), RI. He married (1) Sarah Frances Knight 18 Jan 1872 in Grey, Huron Co., Ontario, CAN. She was born Jul 1853 in England, and died 26 Dec 1883 in Pownal, ME. He married (2) Martha Thurston Pulsifer 1 Jan 1885 in Monmouth, Kennebec, ME. She was born 1847 in Auburn, ME, and died 1930 in Edwn Park, RI.
i. Annie A.6 Wickett, b. 18 Oct 1872, Canada; d. 1 Mar 1952, Rhode Island.
ii. Amy Wickett, b. Abt 1874, Canada; m. W. M. McNair.
iii. Emily S. Wickett, b. 1880, Maine; d. 1953, Rhode Island.
iv. Unknown Wickett, b. Bet. 1872 - 1883; d. Bef. 1883.
v. John Sewall Wickett, b. 14 Aug 1883, Pownal, ME; d. 25 Jan 1943, Houston, Texas; m. Elsie Sarah Walker; b. 18 Jan 1889, S. Bethleham, Northampton, PA; d. 3 Sep 1965, Houston, Texas.
vi. Harriet S.6 Wickett, b. 1888, Rhode Island; d. 1944, Rhode Island; m. Eugene P. Taylor, Bef. 1920, Prob. Rhode Island; b. 1892, Rhode Island; d. 1943, Prob. Rhode Island.
9. Francis Thomas5 Wickett (William4, William3, Richard2, John?1) was born 1850 in Pancrasweek, Devon, ENG, and died Bef. Apr 1891. He married Hannah "Annie" B. McKinnon 21 Sep 1868 in PEI CAN, daughter of William McKinnon and Mary Williams. She was born 26 Dec 1845 in Charlottetown, PEI, CAN, and died 5 Oct 1926 in Brockton, Plymouth, MA.
i. William R.6 Wickett, b. Abt 1869, PEI, CAN.
ii. Lewis William Wickett, b. Abt 1870, PEI, CAN; d. Jan 1870, PEI, CAN.
iii. Bessie Ann Wickett, b. Abt 1871, PEI, CAN; m. George Williams, 21 Jun 1890, Summerside, PEI, CAN.
23. iv. John Franklin Wickett, b. Jul 1873, PEI, CAN; d. 13 Oct 1960, Brockton, MA.
v. Lewis Henry "Harry" Wickett, b. Aug 1876, PEI, CAN; d. 21 Feb 1938, Quincy, Norfolk, MA; m. Anna Nord.
24. vi. Sarah Elizabeth Wickett, b. Abt 1879, PEI, CAN; d. Aft. 1960, Prob. Brockton, MA.
vii. Mary A. Wickett, b. 1 Jan 1881, Northam, PEI, CAN; d. 7 Nov 1915, Newton, Middlesex, MA.
25. viii. Harriet Empress Wickett, b. 18 Sep 1882, Charlottetown, PEI, CAN; d. 26 Oct 1973, Stoughton, Bristol Co, MA.
ix. Christy Mellisa Wickett, b. 2 Jul 1883, Northam, Lot 13, PEI, CAN.
10. Humphrey Dyment6 Wickett (Henry5, William4, William3, Richard2, John?1) was born 26 Jan 1854 in Northam, Lot13, PEI, Canada, and died 4 Jan 1941 in Old Town, Maine. He married Maria Caroline Hayward 14 Jul 1880 in Northam, PEI, CAN, daughter of William Hayward and ??. She was born 11 Sep 1860 in Northam, PEI, Canada, and died 10 Jan 1936 in Old Town, Maine.
i. Charles Wesley7 Wickett, b. 16 Sep 1881, PEI, Canada; d. 10 Aug 1930, New Haven, CT; m. Josephine B. Bushman, 2 Nov 1905, New Haven, CT; b. 21 Jul 1886, Whitehall, NY; d. 25 Dec 1949, New Haven, CT.
ii. Edith Pearl Wickett, b. 1 Apr 1883, Green Point, Gloucester Co. NB, Canada; d. Jan 1983, Duvall, Washington; m. Harold Fleetwood Lurvey, 21 Dec 1916, Old Town, Maine; b. 29 Mar 1878, Rockabema, Maine; d. 19 Aug 1953, Del Norte, California.
iii. Ida Lois Wickett, b. 7 Aug 1884, Green Point, Gloucester Co. NB, CAN; m. Oren Clifton Lutz, 28 Feb 1906, Old Town, ME; b. Oct 1880, PEI, CAN; d. 25 Feb 1961, Jamaica Plains, MA.
iv. Alfred Wickett, b. 13 Aug 1887, Green Point, Gloucester Co. NB, Canada.
11. William Henry6 Wickett (Henry5, William4, William3, Richard2, John?1) was born 13 Sep 1855 in Northam, PEI, Canada, and died 2 Feb 1923 in Old Town, Maine. He married Jane Rebecca Gamester 8 Dec 1880 in Granville, PEI, Canada, daughter of William Gamester and Sarah Barrett. She was born 29 Sep 1860 in Long River, PEI, Canada, and died 28 May 1938 in Old Town (Stillwater), Maine.
i. Henry7 Wickett, b. 16 Apr 1881, Granville, PEI, Canada; d. 18 Jun 1941, Bangor, Maine; m. Mary Ella Johnson McLeod, 17 May 1905, Old Town, Maine; b. 25 Dec 1885, Long River, PEI, Canada; d. 6 Apr 1967, Old Town (Stillwater), Maine.
ii. Melissa Jane "Jennie" Wickett, b. 21 Nov 1882, Granville, PEI, CAN; d. 27 Oct 1951, Bangor, Maine; m. (1) Isaac J. C. Myshrall, 13 Oct 1903, Bangor, Maine; b. Abt 1879, NB, Canada; m. (2) William J. Howell, 20 Aug 1909, Old Town, ME; b. Abt 1879, Kent Co, NB, CAN; m. (3) William J. Brogan, 21 Feb 1921, Old Town, ME; b. Abt 1885, Grand Lake, NB, CAN; d. 15 Apr 1957, Maine; m. (4) Frank N. White, 17 Mar 1924, Bangor, ME; b. 11 Jun 1883, So. Richmond, ME; d. 19 Jun 1927, Bangor, ME; m. (5) Hugh D. McNeil, 12 Oct 1930, Bangor, ME; b. 3 Jul 1880, Sidney, C. B.; d. 17 Sep 1948, Bangor, ME.
iii. William Spurgeon Wickett, b. 2 Nov 1885, Granville, PEI, CAN; d. 26 Jun 1964, Bangor, Maine; m. Bertha Gusta Carr, 23 Mar 1910, Old Town, ME; b. 2 Jun 1892, Greenfield, Maine; d. 6 Jan 1974, Bangor, Maine.
iv. James Havelock Wickett, b. 16 Sep 1886, Granville, PEI, Canada; d. 22 Dec 1966, Biddeford, Maine; m. Anna Belle Littlefield, 6 Mar 1906, Old Town, Maine; b. 13 Jan 1891, East Lowell, Maine; d. 7 Sep 1956, Old Town, Maine.
v. Charlotte Elizabeth Wickett, b. 20 Jul 1888, Granville, Lot21, PEI, Canada; d. 6 Dec 1969, Bangor, Maine; m. (1) Albert Edgar Mudgett, 28 Aug 1907, Old Town, Maine; b. Abt 1878, Orono, Maine; d. 2 Aug 1961, Bangor, Maine; m. (2) Andrew Daniel Jackson, 12 Jun 1912, Old Town, Maine; b. 19 May 1884, Woodstock, NB, Canada; d. 5 Oct 1962, Franklin, New Hampshire; m. (3) Claude S. Mitchell, 13 Jul 1941, Bradley, Maine; b. 16 Aug 1880, Haynesville, Maine; d. 2 Jan 1962, Bangor, Maine.
vi. Alfred Wickett, b. 12 Aug 1891, Granville, Lot 21, PEI, CAN; d. 3 Feb 1969, Bangor, Maine; m. Effie Jane McLeod, 15 May 1917, Old Town (Stillwater), Maine; b. 1889, Flat Lands, NB, CAN; d. 4 Aug 1960, Bangor, Maine.
vii. John W. Wickett, b. 26 Dec 1893, Old Town, Maine; d. 10 Apr 1971, Togus, Maine.
viii. Mary Ann Maria Wickett, b. 25 Oct 1895, Old Town (Stillwater), Maine; d. 7 May 1980, Bangor, Maine; m. August Algot Swenson, 16 May 1914, Millinocket, Maine; b. 17 Oct 1887, New Sweden, Maine; d. 10 Jul 1956, Bangor, Maine.
ix. Leslie Adams Wickett, b. 12 Nov 1897, Old Town (Stillwater), Maine; d. 18 Nov 1965, Milford, Maine.
x. Fidelia Wickett, b. 5 Sep 1899, Old Town, Maine; d. 13 Jun 1987, Bangor, Maine; m. (1) Edgar Morrill Halloran, 22 Feb 1919, Old Town, Maine; b. 27 May 1895, Maxfield, Maine; d. 4 Jan 1981, Pittsfield, Maine; m. (2) Percival Russell Wedgewood, May 1967, Maine; b. 22 May 1889, Old Town, Maine; d. 31 Jan 1978, Bangor, Maine.
xi. Leonard Wickett, b. 7 Sep 1903, Old Town (Stillwater), Maine; d. 19 Apr 1980, Orono, Maine; m. Sarah Ellen Campbell, 11 Jan 1926, Bangor, Maine; b. 11 Jan 1898, Richibuctu, NB, Canada; d. 29 Jul 1977, Bangor, Maine.
12. Lewis Albert6 Wickett (Henry5, William4, William3, Richard2, John?1) was born 28 Dec 1857 in Northam, Lot 13, PEI Canada, and died 27 Oct 1931 in PEI, Canada. He married (1) Mary Jane McNeill Abt 1883 in PEI, Canada, daughter of Malcolm MacNeill and Lucy MacDonald. She was born 17 Jan 1862 in West River, PEI Canada, and died 24 Dec 1912 in PEI, Canada. He married (2) Harriet E. Tuplin 28 Mar 1916 in Kensington, PEI CAN, daughter of John Tuplin and Mary Bentley. She was born 1867 in Margate, PEI CAN, and died 1953 in PEI, CAN.
i. Lewis Bayfield7 Wickett, b. Aug 1884, PEI, CAN; d. 26 Feb 1901, Clinton, PEI, CAN.
ii. Lucy Eleanor Wickett, b. 5 Apr 1886, Belmont, PEI, CAN; d. 25 Dec 1973, Bangor, ME; m. Byron Folsom Edgerly, 28 Sep 1918, Bangor, Maine; b. 13 Sep 1874, Cardville, ME; d. 7 Jan 1967, Cardville, ME.
iii. Celetta Maude Wickett, b. 13 Jun 1888, Belmont, PEI, CAN; d. 6 Oct 1965, Cardville, ME; m. William Anthony Terrill, 3 Mar 1909, Old Town, Maine; b. 3 Oct 1884, Weehawken, NJ; d. 1 May 1953, Bangor, ME.
iv. Edna Blanche Wickett, b. Aug 1898, PEI, CAN; d. 12 Nov 1916, Kelvin Grove, PEI, CAN.
13. Serenah Alice6 Wickett (Henry5, William4, William3, Richard2, John?1) was born 21 Apr 1861 in PEI, Canada, and died 29 Oct 1950 in PEI, Canada. She married Bernard Paynter 10 Jul 1878 in PEI, Canada. He was born 12 Dec 1852 in PEI, Canada, and died 21 Sep 1940 in PEI, Canada.
i. Mary Jane7 Paynter, b. 28 Aug 1879; d. 20 Mar 1970; m. Thomas Rogers, 2 Jul 1901, Maine.
ii. Matilda Alice Paynter, b. 6 Feb 1881, Canada; d. 4 Aug 1960; m. ?? MacKenzie.
iii. Hannah Elizabeth Paynter, b. 23 Sep 1883; d. 26 Mar 1967, Bangor, ME; m. Louis H. King, 25 Aug 1902, Maine; b. Abt 1876, Prob. Maine; d. 12 Aug 1962, Orono, ME.
iv. Eleanor Maria Paynter, b. 3 Aug 1885; d. 25 Jul 1960; m. Lester W. Chase, 28 Feb 1900, Maine.
v. Lewis William Paynter, b. 5 Nov 1887; d. 5 Sep 1951.
vi. Nettie A. Paynter, b. 1 Mar 1891; d. 11 Jul 1921; m. ?? Feener.
vii. Fannie Marie Paynter, b. 15 Oct 1892; d. 4 Nov 1964; m. Pickering.
viii. Thomas Andrew Paynter, b. 1 Apr 1896; d. 5 Feb 1979; m. (1) Bessie Jane Pickering, Bef. 1927; b. 1896; d. 1928; m. (2) Elsie M. McPhee, Aft. 1928; b. 1902; d. 1987.
ix. Roy Edmund Paynter, b. 25 Jun 1900; d. 11 Dec 1979; m. Fanny A. McDonald; b. 25 May 1901; d. 8 Sep 1987.
x. Minnie Pearl Paynter, b. 8 Jan 1903; d. 15 May 1989; m. Bruce Graham.
14. Eleanor Josephine6 Wickett (Henry5, William4, William3, Richard2, John?1) was born 24 Jun 1863 in Northam, PEI, Canada, and died 31 Oct 1944 in PEI, Canada. She married Roderick MacKenzie 22 Dec 1880 in PEI, Canada, son of Charles MacKenzie and Barbara MacLeod. He was born Feb 1848 in Granville, PEI, Canada, and died 18 Nov 1921 in PEI, Canada.
i. Mary Ann7 MacKenzie, b. 22 Dec 1883, Stanley Bridge, PEI, CAN; m. Frank Severence; b. PEI, CAN.
ii. Charles Henry MacKenzie, b. 22 Dec 1885, PEI, CAN; d. 27 Sep 1916, France.
iii. Lewis Havelock MacKenzie, b. 19 Aug 1888, Prob. PEI CAN; d. 1971, PEI, CAN; m. Annie Bell Gillis, 30 Dec 1914, Prob PEI, CAN; b. 31 May 1897, Prob. PEI CAN; d. 1985, PEI, CAN.
iv. Albert Carroll MacKenzie, b. 2 Jul 1890; d. 21 Dec 1913, Maine.
v. George Walter MacKenzie, b. 16 Jul 1892, Springfield, PEI, CAN; d. 10 Jan 1893, PEI, CAN.
vi. George Walter MacKenzie, b. 18 Jan 1895, Springfield, PEI, CAN; d. 24 May 1898, PEI, CAN.
vii. Barbara MacKenzie, b. Aft. 1899, Springfield, PEI, CAN; d. Aft. 1899, PEI, CAN (Infant).
viii. Euphemia Gertrude MacKenzie, b. 5 Oct 1899, Springfield, PEI, CAN; d. 28 May 1916.
ix. Frank MacKenzie, b. Aft. 1900, Springfield, PEI, CAN; d. PEI, CAN (Infant).
15. Thomas Adams6 Wickett (Henry5, William4, William3, Richard2, John?1) was born 5 Aug 1865 in Northam, PEI, Canada, and died 15 Sep 1928 in Old Town (Stillwater), Maine. He married Mary E. "Mae" Wilson 15 Nov 1893 in Old Town, Maine, daughter of James Wilson and Lena Ledgere. She was born 15 May 1871 in Prince Edward Island, Canada, and died 9 Jan 1957 in Old Town (Stillwater), Maine.
i. Fred Allen [Howe]7 Wickett, b. 17 Aug 1898, Houlton, Maine; d. 18 May 1974, New Hampshire; Adopted child; m. Julia Effie Morton, 11 Nov 1921, Old Town, Maine; b. 14 Apr 1903, Old Town, Maine; d. 22 Jan 1990, Pos. New Hampshire.
ii. Bernice [Howe] Wickett, b. Abt 1901, Malden, Mass.; m. Nathen C. Ayer, 15 Feb 1922, Old Town, Maine; b. 15 Aug 1882, Lincoln, Maine; d. 12 Apr 1962, Lowell, Maine.
16. Penrose Havelock6 Wickett (Henry5, William4, William3, Richard2, John?1) was born 9 Jul 1867 in Northam, Lot 13, PEI, Canada, and died 14 Mar 1940 in Old Town, Maine. He married (1) Myrtle Ivy Babcock 12 Oct 1891 in Old Town, Maine, daughter of William Babcock and Mary Curtis. She was born 7 May 1872 in Newburg, Maine, and died 19 Jun 1932 in Old Town (Great Works), Maine. He married (2) Mary E. "Mae" Wilson 19 Dec 1933 in Old Town, Maine, daughter of James Wilson and Lena Ledgere. She was born 15 May 1871 in Prince Edward Island, Canada, and died 9 Jan 1957 in Old Town (Stillwater), Maine.
i. Winifred G.7 Wickett, b. 16 May 1892, Old Town (Great Works), Maine; d. 10 Dec 1976, Bangor, Maine; m. Earl H. MacDonald, 21 Apr 1917, Old Town, Maine; b. 12 Mar 1892, Township 39, Maine; d. 26 Apr 1941, Bar Harbor, Maine.
ii. Vaughn Havelock Wickett, Sr., b. 8 Nov 1893, Old Town (Great Works), Maine; d. 4 Jan 1962, Old Town (Great Works), Maine; m. (1) Marion Esther Hopkins, 10 Jun 1914, Old Town, Maine; b. Abt 1895, Old Town (Stillwater), Maine; m. (2) Eleanor May Paul, 2 Nov 1921, Old Town, Maine; b. 25 May 1904, Halifax, NS or St Stevens, NB, Canada; d. 25 Aug 1980, Bangor, Maine.
iii. Leah Hildred Wickett, b. 16 Jul 1895, Old Town, Maine; d. 31 Jan 1899, Old Town, Maine.
iv. Levi A. Wickett, b. 28 Feb 1898, Old Town, Maine; d. 24 Aug 1898, Old Town, Maine.
v. Grace Hilda Wickett, b. 14 May 1902, Old Town (Great Works), Maine; d. 8 Dec 2001, Orono, Maine; m. Samuel Hudlow Laskey, 19 Dec 1923, Old Town (Great Works), Maine; b. 20 Dec 1903, Newbury, Vermont; d. 16 Sep 1985, Bangor, Maine.
17. Sarah Ann6 Wickett (Henry5, William4, William3, Richard2, John?1) was born 1869 in PEI, Canada, and died 1903 in PEI, Canada. She married Thomas Henry Cole 6 Jan 1886 in PEI, Canada, son of William Cole and Mary Constable. He was born 1862 in French River, Queens, PEI Canada, and died 1950 in PEI, Canada.
i. Ella Myrtle7 Cole, b. 25 Mar 1900, French River, Queens, PEI Canada; d. 1974; m. D. Roy Champion.
18. Sophia Jennie6 Wickett (Henry5, William4, William3, Richard2, John?1) was born 29 Jun 1871 in PEI, Canada, and died 17 Dec 1938 in Old Town, Maine. She married (1) Thomas Dolan 14 Nov 1891 in Old Town, Maine. He was born 1 Oct 1862 in NB, Canada, and died 2 Jul 1927 in Old Town, Maine. She married (2) Fred Leo Curneil 3 Mar 1928 in Old Town, Maine, son of James Curneil and Mary Judkins. He was born 27 Jun 1878 in Prentiss, Maine, and died 24 Dec 1942 in Bangor, Maine.
i. Walter H.7 Dolan, b. 12 Apr 1894, Maine; d. 4 Jun 1976, Bangor, Maine; m. Evelyn M. Jellison, 12 Aug 1915, Maine; b. 23 Nov 1893; d. 19 Feb 1975, Bangor, Maine.
ii. Willard Earl Dolan, b. 21 Sep 1898, Old Town, Maine; d. 14 Jul 1934, Old Town, Maine; m. Helen Marion Agrell, 8 Oct 1919, Old Town, Maine; b. 16 Jun 1897, Taylor's Falls, Minn; d. 1 Aug 1960, Lincoln, Maine.
iii. Elden L. Dolan, b. 31 Mar 1904, Pos Old Town, ME; d. 24 Dec 1979, Old Town, ME; m. Marjorie B. Bailey, 1 Jan 1927, Maine; b. 22 May 1898, Pos. LaGrange, ME; d. 10 Feb 1989, Orono, ME.
19. Alfred Edward6 Wickett (Henry5, William4, William3, Richard2, John?1) was born 19 Aug 1873 in Granville, Lot 21, PEI, Canada, and died 14 Sep 1943 in Kirkwood, Missouri. He married (1) Gertrude May Thompson 27 Jun 1894 in Old Town, Maine, daughter of Aratus Thompson and Minnie Bates. She was born May 1876 in Corinna, Maine, and died 1944 in Maine. He married (2) Myrtle Annie Brewer 18 Nov 1918 in York Co., NB, Canada, daughter of John Brewer and Margaret Brewer. She was born 11 Jun 1891 in Burtts Corners, NB, CAN, and died 9 Jul 1978 in Brewer, ME. He married (3) Sophia 19 Aug 1930 in St Louis Co, MO. She was born 1872, and died Aft. 1943 in Pos. Near Phoenix, AZ.
i. Laurence C.7 Wickett, b. 24 Apr 1896, Old Town, Maine; d. 1 Sep 1955, St Louis, Missouri; m. Regina E. Specking, Bef. 1928, Prob. Missouri; b. 3 Feb 1906, Missouri; d. 14 Jan 1962, Missouri.
ii. Chester Gilmore Wickett, b. 6 Jan 1904, Old Town, Maine; d. 21 Mar 1975, Fall River, Massachusetts.
iii. Lloyd Wickett, b. 8 Sep 1907, Old Town, Maine; d. 8 Sep 1907, Old Town, Maine.
20. Fannie Lavenia6 Wickett (Henry5, William4, William3, Richard2, John?1) was born 23 May 1876 in PEI, Canada, and died 9 May 1950. She married Harrison C. Woods 20 Sep 1895 in Old Town, Maine, son of Job Woods and Permita Dinsmore. He was born Sep 1872 in Dover, Maine.
i. Vivian R.7 Woods, b. 21 Aug 1896, Old Town, Maine; m. Clarence N. Young, 14 May 1914, Maine.
ii. Bernice Ruth Woods, b. 31 Aug 1898, Bradley, Maine; m. Harold A. Shepherd, 14 Feb 1917, Maine; b. Possibly-Winifred, AB, Canada.
iii. Jane E. Woods, b. 26 Jun 1901, Bradley, Maine.
21. Richard Herbert6 Wickett (Henry5, William4, William3, Richard2, John?1) was born 5 Apr 1878 in Granville, PEI, Canada, and died 3 Sep 1932 in Fredericton, York Co., NB, Canada. He married Esther Jennie Overlock 28 Nov 1900 in Old Town, Maine, daughter of Reuben Overlock and Jennie Cothran. She was born 11 Feb 1882 in Hermon, Maine, and died 17 Jan 1964 in Fredericton, NB, Canada.
22. Hubert William6 Cann (Mary Elizabeth5 Wickett, William4, William3, Richard2, John?1) was born 1890, and died 1930 in Prob. Canada. He married Pearl Janet Currie in Prob. Canada. She was born 14 Dec 1904, and died Apr 1991 in Prob. Canada.
23. John Franklin6 Wickett (Francis Thomas5, William4, William3, Richard2, John?1) was born Jul 1873 in PEI, CAN, and died 13 Oct 1960 in Brockton, MA. He married Catherine Elizabeth Cullen Abt 1897 in Massachusetts, daughter of ?? Cullen and ??. She was born Sep 1872 in Queens Co., NB CAN, and died 1949 in Brockton, MA.
i. Hazel May7 Wickett, b. 9 Dec 1897, Brockton, MA; d. Apr 1986, Pos. North Easton, MA; m. George Calnan; b. 4 Apr 1880; d. Sep 1966, Pos. Lawrence, MA.
ii. Ray Franklin Wickett, b. Feb 1899, Brockton, MA; d. 1952, Prob. Brockton, MA; m. Mildred Grace Kiff, 1918; b. 17 Mar 1900, Chelsea, MA; d. 1 Apr 1931, Brockton, MA.
iii. Lewis Richard Wickett, b. 25 Aug 1902, Brockton, MA; d. 7 Jan 1904, Brockton, MA.
iv. Thomas Lloyd Wickett, b. 15 Jun 1905, Brockton, MA; d. 14 Jul 1976, Stoughton, MA; m. Barbara Katherine Wilson; b. 1914; d. Abt 18 Oct 2000, Pos. Beverly, MA or Riverside NB.
v. John Edward Wickett, b. 27 Mar 1909, Brockton, MA; d. 23 Apr 1913, Brockton, MA.
vi. Franklin Wickett, b. 24 Mar 1911, Brockton, MA; d. 24 Mar 1911, Brockton, MA.
vii. Elizabeth B. Wickett, b. Nov 1912, Prob. Brockton, MA; d. Abt 1962; m. Edward Repetto, Abt 1930, Prob. Mass.; b. 25 May 1911; d. 7 Mar 1996, Prob. Brockton, MA.
viii. Mildred Edith Wickett, b. 26 Dec 1913, Brockton, MA; d. 15 Sep 1996, Virginia Beach, VA; m. Alton Ward Amidon; b. 2 Sep 1908, Westmore, VT; d. 7 Jun 1982, Bradenton, FL.
24. Sarah Elizabeth6 Wickett (Francis Thomas5, William4, William3, Richard2, John?1) was born Abt 1879 in PEI, CAN, and died Aft. 1960 in Prob. Brockton, MA. She married Charles Durant. He was born Bet. 1870 - 1872 in Massachusetts.
i. Private - Status unknown.
ii. Private - Status unknown.
iii. Private - Status unknown..
iv. Private - Status unknown..
v. Private - Status unknown..
vi. Private - Status unknown..
25. Harriet Empress6 Wickett (Francis Thomas5, William4, William3, Richard2, John?1) was born 18 Sep 1882 in Charlottetown, PEI, CAN, and died 26 Oct 1973 in Stoughton, Bristol Co, MA. She married James Arthur Davis 2 Oct 1902 in Brockton, MA, son of James Davis and Annie Styles. He was born 10 Apr 1873 in Pictou, NS, Canada, and died 8 Jan 1964 in Stoughton, Bristol Co, MA.
i. Arthur Charles7 Davis, b. 6 Aug 1903, Brockton, MA; d. 14 Dec 1969, Auburndale, MA; m. Blanche M. LaRosee; b. 19 Apr 1898; d. 6 Jan 1995, Auburndale, MA.
iii. Evelyn Gertrude Davis, b. 16 Nov 1908, Brockton, MA; d. 12 Apr 1972, Whitman, MA; m. Eldon White, 28 Jun 1935; b. 21 Oct 1923; d. 19 Feb 1988, Whitman, MA.
vi. Russell James Davis, b. 13 Mar 1916, Brockton, MA; d. 14 Jul 2004, Brockton, MA.
vii. Marion Davis, b. 22 Nov 1918, Brockton, MA; d. 7 Feb 1978, Datona, FL; m. Harold Brill; b. 4 Apr 1914, Maine; d. Jan 1972, Daytona, FL.
viii. Bertha Frances Davis, b. 21 Sep 1921, Brockton, MA; d. 12 Apr 1984, Stoughton, Bristol Co, MA; m. Roland Gosbee; b. 31 Oct 1908; d. 12 Apr 1984, Cambridge, MA.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.