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T

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LAWYER VOLUME

NUMBER

2 4 •

Publisher, Arkansas Bar Association

ARKA SAS BAR ASSOCIATION

Editor, Paige Beavers. Director of Communications

IN

400 IV. Markham

I I

THIS

ISSUE

little Rock, AR 72201

Page 5

OFFICERS David M. Glover President Charles B. Roscopf President-Elect Rodney E. Slater Sec.-Treasurer Fred S. Ursery Exec. Council Chair William A. Martin Executive Director Judith Gray Assistant Executive Director

Page

The Presidenl's Message

6

The Executive Director's .Repon Law, Literature & Laughter

Page 8

Vietor A. Fleming

Page 10 Page 11

Young Lawyers' Report Profile of a Historical Arkansas: SMIUEL CALHa N ROANE Frances Mitchell Ross

EXECUTIVE COUNCIL Madison P. Aydelott III Mark Cambiano Daniel Carter Carolyn j. Clegg john . Fogleman Robert L. jones III James H. McKenzie Paul D. Mc eill Martha M. Miller R. Gary Nutter E. L1mar Pettus Carolyn B. Witherspoon

Page 17

I n House News

Page 19

Law Office Management: What's New? CASEBASE: A Long Time in the Making Kyle D. Parker

Page 21

Disciplinary Actions

Page 23

Civil Procedure: ARCP Rule

Page 26

April Book Review:

umber 11

New Perspectives in Advocacy: A Videotape Program of {he Art of Trial Practice

EX-OFFICIO David M. (Mac) Glover Charies B. Roscopf Philip E. Dixon Rodney E. Slater Fred S. Ursery Rosalind Mouser The Arkansas Lawyer (USPS 546-040> is published quarterly by the Arkansas B."lr Association. Second class postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas lawyer, 400 West Markham, Little Rock, Arkansas 72201. Subscription price to non-members of the Arkansas BM Association $15.00 per year and 10 members 510.00 per year included in annual dues. Any opinion expressed herein is that of the author. and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent in two copies to EDITOR, Arkansas Lawyer, 400 West Markham, Little l~ock, Arkans<1S 72201. All inquiries regarding advertising should be sent to The Arkansas Lawyer at the above address.

Page 28

An Environmental Law Overview: Where We Stand

Page 31

Superfunds: A Few Basic Concerns

Page 36

Solid Waste Strategies for the Nineties

W. D. Tripper Cronehite ill Greg Yeatman Steve A. Weaver

Page 45

Wetland Protection in Arkansas Paul N. Means


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4

ARKANSAS

LAWYER

APR1L

1990


THE PRESIDENT'S MESSAGE

Resolution l06C On February 13, 1990, the American Bar Association (ABA), through its House of

Delegates, passed Resolution 106C committing the ABA to a pro-abortion position. The resolution is brief: BE IT RESOLVED, that the American Bar Association recognizes the fundamental rights of privacy and equality guaranteed by the United States Constitution, and opposes legislation or other governmental action that interferes with the confidential relationship between a pregnant woman and her physician, or with the decision to terminate the pregnancy at any time before the fetus is capable of independent life, as determined by her physician, or thereafter when termination of the pregnancy is necessary to protect the woman's life or health. The expected whirlwind of opposition within the profession has been unleashed. The 53,000 members of the State Bar of Texas have been summoned for a specially called meeting to reconsider appointment and sponsorship of their delegates to the ABA House of Delegates and their State Bar's general participation in the programs of the ABA. A delegation from the 56,000 member Los Angeles County Bar Association, but not the Association itself, is considering the formation of an alternative association tentatively entitled "United States Lawyers' Association." At least one Arkansas lawyer has eloquently voiced his disapproval of passage of Resolution 106C in his letter resigning from the ABA. Historically, the ABA has approved the Uniform Abortion Act and the Revised Uniform Abortion Act in 1972 and 1974, respectively. Then, in 1976, the ABA declined to consider competing resolutions supporting and opposing a Constitutional amendment banning abortion on the grounds that the resolutions were not within the purposes of the ABA. In 1978, the ABA House of Delegates did approve support for federal

By David M. Glover and state legislation to finance abortion services for indigent women. Regardless of your view on this complex religious, ethical, moral and legal question, it simply is not a matter the ABA had to resolve. I agree with Darrell jordon, President of the State Bar of Texas. Following the passage of Resolution 106C, he penned a letter to ABA President Stanley Chauvin in which he opined "such action was misguided, insensitive, cruelly intolerant and wholly avoidable." Pro-life advocates are calling for the elimination of the ABA from the screen process of Federal judge nominees because the ABA now supports a position on a matter before the Courts. Scores of lawyers are resigning ABA membership because of conscience. The Roman Catholic Imvyer and the pro-life advocate must now sacrifice their tenets of faith and cherished positions in order to continue membership in the ABA. Clearly, the ABA's stand on Resolution 106C i potentially self-destructive.

Quoting jordan further, "It is not for the ABA or any other organized Bar Association to attempt to reconcile the struggle between faith, reason and subject sentiment that is the essence of the abortion issue ... Under the guise of 'freedom of choice' the very scope for choice has been eliminated for some." Resolution 106C addressed a political and moral issue of great divisiveness. It aroused an issue that arguably is not within the purview of the ABA, because it is not central to the workings of the profession or of the Courts, legitimate subjects for ABA stands. It asserted a position that is incompatible with the moral and religious convictions of many of its members. It did all of this in spite of the existence of a plethora of other organizations available for this kind of advocacy. My hope is that Resolution 106C will be rescinded by the ABA House of Delegates when it reconvenes in Chicago this August. just as some of you have already feIt forced to resign your ABA membership because of Resolution 106C, others of you were instrumental in the passage of Resolution 106C. Do you see the problem? Our role is to take sides "on behalf of' not on our own behalf. I believe the bar's role should be to defend the right to advocacy for both sides. When we jump on either side's bandwagon, we confuse the issue, cloud the debate and compound the problem. In this society, the attorney's assigned role is to ensure the proper operation of our system of law on behalf of participants in conflict. Of course, we may, and perhaps should, take a personal stand in matters of such weight -- but in other arenas. Pro-choice or pro-life, take your stand; but not in the theatre of the ABA. As our own former Association President Bill Wilson is wont to s.,'y, "This issue deserves a good letting alone."


EXECUTIVE DIRECTOR'S REPORT It Ain't Necessarily So ... It ain 'f necessarily so, tile tlritrgs you're liable to read ;n an obser-vation, they ai,,', "ecessarily so. This paraphrase of the opening lines of a George Gershwin song from Porgy and Bess tells us how we should treat some of the myths about minimum continuing

legal education propounded in a funny and caustic "observation" penned by Justice Darrell Hickman just before he retired. It was appended to an Arkansas Supreme Court order adopting certain Minimum ontinuing Legal Education (MCLE) regulations and received substantial coverage in the Arkansas Gazette. His words and digs in this observation and two earlier dissents may be fun to read but can mislead us if taken as accu ra teo In calling mandatory legal education "nonsense" and in an earlier dissent saying "nobody is really serious about education," Justice Hickman implied lawyers who don't want to learn don't need to learn about the changing and developing law. Bar leaders throughout the nation have found some lawyers need the prod of an MCLE requirement to meet their ethical duty of maintaining their competence. Once exposed, many skeptics become CLE proponents. For example, a well-known lawyer-legislator, confessing it was his first CLE program in 20 years, was very complimentary of the quality of the Mid-Year meeting. One myth is the change in the name from "Mandatory" to "Minimum Continuing Legal Education" was designed to delude lawyers, so they would not realize they could lose the privilege of practicing law if they failed to gain 12 hours credit each year. Boldly printed on the envelope that last summer carried the MCLE rules to each licensed lawyer was the warning: "NOTICE-ENCLOSURE AFFECTS YOUR ARKANSAS LAW LICENSE." Hardly a way to lull anyone into thinking MCLE is not a serious matter.

6

ARKANSAS

By William A. Martin In changing the name from "Mandatory" to "Minimum" CLE, our court followed the lead of the American Bar Association and a number of other states in selecting a term that tell:, everyone the 12-hour requirement is only a start in the effort to remain competent. Upon reflection anyone realizes far more than 12 hours a year effort is required to keep up with our ever changing laws, but the formal programs are a starting point. There is the myth of expensive programs. ationally there are some terribly expensive programs on a per hour basis, but they are not in Arkansas. The Louisiana State Bar recently had a one-day program on appellate practice for which they charged $195. The University of Texas School of Law i advertising several two day CLE programs for $250. Georgetown University is advertising a day and a half for $425. A Southeast Bankruptcy Institute program is $375 for two and a half days. Here at home the Arkansas Institute for Continuing Legal Education (AICLE) charges $95 for most of its one路day programs. The Association Workers' Compensation Law Institute is $75 for a one-day program, and the

LAWYER

APRIL

1990

Annual Meeting is $125 for 14 CLE hours over three days. Another myth is enhanced credit for speakers is to "take care of the big shots" and that small town lawyers are not likely to be invited to be speakers. Hardly any speaker can properly prepare to speak to peers on a legal subject and prepare the required written materials in less than four times the length of the talk - the amount of extra credit speakers get. From having been a speaker I know the preparation is intellectually stimulating but also hard work. "Big shots" are not getting any freebie with enhanced credit. Most people would figure judges could be classed as "big shots," but several have decided not to appear as speakers because they did not have time to prepare written materials. From meeting with AICLE and with Association program planners I know they make an effort to have their faculty geographically balanced. For our Annual Meeting June 13-17 we have 42 Association members as speakers, panelists and moderators. Exactly half, 21, are from outside Pulaski County and several are from very small towns. Poor speakers are not likely to be invited back. The MCLE rules require the sponsors seek evaluations from the audience, and the comments are read and heeded. For its Best of CLE program June 26-30 AICLE has selected speakers who got the highest ratings this bar year to make encore presentations. With 82 percent of the responses to my presentation being very good or excellent, I was not good enough to make the cut. The Court, in adopting MCLE Rule 4c, put in requirements designed to ensure quality programs by insisting that the presenters be people who know what they are talking about through having experience or having done adequate study, that they produce a proper quality and quantity of written materials that are useful to the audience and that a setting


conducive to learning be provided. Our Arkansas providers are striving to comply. One of Justice Hickman's innovative suggestions would be all right with me -let the audience vote after the presentation on whether a speaker should get extra credit. While a lawyer's ego is all that is needed to spur most to prepare well, such a vote would confirm that the AICLE and Association program planners and speakers are not producing "bonenumbing lectures" but instead are doing an outstanding job of providing what the lawyers of Arkansas want and need.

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LAW, LITERATURE & LAUGHTER

Bardot Cleared in Donkey Castration, Mississippi Voodoo Conspirators Plead Guilty By Victor A. Fleming There

has

been

incoming

correspondence, for which I am

always grateful. (A column like this should occasionally write itself via contributors.) Gayle Windsor sent me a copy of an item from an 1819 issue of the Arkansas Cazette: "Yesterday the coroner, according to custom, was ca lied to view the body of Hervey jessup, an unfortunate debtor, confined in the limits of the debtor's gaol. -The jurors, after a studied investigation, reported his death to have been occasioned by the visitation of God, under a deep depression of mind and body, brought on by the cruelty of Abel Clapp, on whose account the poor unfortunate deceased has been confined, since the 23d day of October last, for the paltry sum of $40,32 cents. "Humanity shudders at the facts which came out in the investigation,

one of which it may not be amiss to mention, viz. -the sheriff, a day or two previous to the death of the deceased, applied to his creditor for

been sentenced to life without parole plus six year". Graham added this note: "With the shortage of jail space, it seems they would let him go when he dies." Allie Wilhelm writes: "When I read the first sentence of the enclosed UPI story (dateline Sainl-Tropez, France) 'A court has ruled thai Bridgett Bardot was justified in having her neighbor's donkey castrated'- I thought, Do what? The neighbor, jean-Pierre Manivet, was himself ordered topay 20,000 francs to Bardo!'s animal rights foundation for 'creating a false media scandal.' "It seems that the Manivet donkey, Charly, had been making amorous advances on Bardot's 32 year old mare, Duchesse, and that Bardot feared such activity might hasten the death of the aging equine. Might have made her golden years a little more exciting, too, I thought. The story makes clear thai Bardot did not personally perform the surgery. She had her gardner do it." An anonymous contributor sent me

hospital at Bellevue; but, shocking to relate, no permission could be obtained!" Gayle added a note: "The heirs and descendants of Hervey jessup immediately began lobbying efforts which, after several generations, resulted in the enactment of PL 95-109 (Fair Debt Collection Practices Act). (They felt Hervey should not have been Clapped into jail.) Graham Catlett forwarded to me a

an article from last September's ABA jonmal which reported that in Tupelo, Mississippi, two half-brothers had been charged with conspiracy to murder a circuit judge. The evidence? They had purchased (from the judge's maid) a photo of the judge and a lock of his hair, which they were going to send to a jamaican voodoo priest, who would then cast a death spell on the judge. In the article, an anthropology professor was quoted as saying, "It's a

news story reporting that a man

dramatic turnabout for the govern-

convicted of murder and battery had

ment to make a case based on a belief

permission to remove him to the

8

ARKANSAS

LAWYER

APRIL

1990

that normally no one takes seriously." A law professor also was quoted: "If a person conspires to kill a judge by some means, under the law I suppose it doesn't matter if the means were ineffective." I called the Lee County, Mississippi, Sheriff's office and asked how the case came out. A deputy said, "None of 'em didn't git no time," which is rural Mississippi language, law enforcement dialect. It translates roughly into, "Both pleaded guilty. The one who was not already in prison got five years probation; the one in prison got a sentence to run concurrently with

the time he was already doing." The defense lawyer was unavailable for

comment, as \">'as the Jamaican priest.

Š 1990 by Vic Fleming

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SINCERE APPRECIATION TO AVLE ATTORNEYS WHO REPRESENTED CLIENTS DURING 1989 The Arkansas Volunteer Lawyers for the Elderly's Board of Directors and staff wish to express OUI sincere appreciation to the foUowing members of the AVLE program who SO generously donated their time through pro bono representation of low-income older Arkansans during 1989. Robert Abney Donald Adams Scott Adams John Aldsworth Richard Allen Charles Allen Tom Allen Bruce Anderson Debbie Armstrong-Wright Dale Arnold Anthony Bartels Jeff Atkinson Pat Aydelott William Ayers Karen Baker

William Ball Marc Baretz Ben Barry Ed Barry Judith Bearden Steve Bell Ronny Bell

Kathleen Bell Russell Berry Sam Bird Ralph Blagg Leroy Blankenship Joseph Boechmann Ed ward Boyce Sam Boyce Wayne Boyce Comer Boyett Bill Bracey, Jr. John Bradley Robert Branch Herby Branscum John Bridgeforth Marcia Brinton Guy Brinkley Sam Brooks Rick Burch John Burris Leon Burrow Mark Cambiano Ben Canlth David Carruth Odell Carter Kenneth Castleberry Bob Castleman Richard Castleman Jerry Cavaneau Marvin Childers Stephen Choa te David Clark William Clark, Jr. Beverly Claunch Orville Clift Allen Cline Eldon Coffman Robert Coleman Jon Coleman Grady Colvin Kenneth Cowan

James Cox Kent Coxsey Dodd Daggett Jesse Daggett Williams Daniels Scott Davidson Thomas Deen Bruce Denney Bob Depper Peter DeStefano Robert Dittrich John Dodge Robert Donovon Mark Drake Gary Draper Jim Dunn Chadd Durrett Mike Easley W. A. Eckert Robert Edwards Frank Elcan John Eldridge, III Charles Ellis Bill Etter Michael Everett Osca r Fend ler John Fogleman Dan Ford Paul Ford Donald Forrest Orvin Foster Susan Fox Teresa French Andrew Fulkerson Anthony Fuller Paul Gant Roy Gean, III Paul Gean Lonnie Gehring Paul Giuffre Shelly Glass Don Glover David Goodson Michael Gott Doug Gramling Mary Green Theresa Green James Haaser James Haddock Phyllis Hall-Johnson James Hamilton Herman Hamilton Jeffrey Hance Albert Hanna Robert Hardin Bruce Harlan Reid Harrod Hani Hashem Larry Hayes David Henry Ashley Higgins Montie Hobson Joe Holifield

P.K. Holmes Paul Hopper Bob Hornberger Robert Hough, Jr. Phil Hout Steve Howard Frank Huckaba Curt Huckaby Kyle Hunter Asa Hutchinson Billissacs James Jackson Dick Jarboe James Jefferson Mark Johnson Joel Johnson Kenneth Johnson Robert Jones, III L:1Jeanna Jones A. G. Kassos Bob Keeter Michael Kelly Gary Kennan Larry Killough Knox Kinney Baird Kinney Phil Kinsey Steve Kirk Michael L1nders Ernest Lawrence Hugh L,WS Stanley Leasure Jack Lewis John Lingle Mark Lindsey Paul Linsday Da Ie Li psmeyer Wesley Lody Retcher Long Guy Long Robert Lowery Stanley Ludwig James Luffman Richard Lusby John Mays A.D. McAllister L1Gayie McCarty James McCauley Edwin McClure Joey McCutchen Lucinda McDaniel James Mclarty Julie Menky Richard Miller David Miller William Mills Donn Mixon Mark Moll Jed Molleston Dennis Molock Mitchel Moore H. T. Moore Janet Moore Hart

William Moorhead Eddie Morgan Henry Morris Cecil B. Nance Leon icholson Jan Nielson James O'Hern George Oleson David Osmon Ronnie Phillips Richard Parker Douglas Parker Rhonda Parris Jerry Pa tterson Chris Paul Joe Peacock Richard Peel Steven Peer Marian Penix Brant Perkins Joseph Perry Randy Philhours Rusty Porter Val Price Richard Proctor John Purtle John Putman Carrold Ray Joe Reed Ken Reeves Richard I~eid Bob Remet George Rhoads Kirby Riffel Jeannette Robertson Jeff Rogers Charles David Roscopf Charles B. Roscopf Bill Ross Steve Routon Felver Rowell Kent Rubens Jerry Ryan Shelton Sargent Dennis Sballotto Danny Schieffler Edward Schieffler Doug Schrantz John Scott Paul Selby Dennis Shackleford Harold Sharpe David Shelton Phil Shoffner Jim Short Harrell Simpson John Skaggs J. T. Skinner Jim Sloan Skip Smith Norman Smith Robert Smith CregSmith

Phil Smith Malcolm Smith David Solomon Jim Spencer Larry Steele Dan Stidham Barbara Stokes

James Strother Michael Stubblefield David Stubbs Joseph Swaty David Talley Marvin Thaxton Mary Thomason Thurston Thompson Bob Thompson John Throesch Bryan Tilley Mike Todd Bob Trammell Hugh Trantham Pat Tucker

John Van Kleef Patricia VanAusdall James VanDover

John VanWinkle Sallie Varner Glen Vasser

Gary Vinson Steven Vowell

Ralph Waddell Paul Waddell Rick Wade Robin Wadley

Marian Wagner Karen Walker

Bill Walters Ray Waters

lim Watson Kelley Webb Phillip Wells David Westmoreland Stephen White John White Sam Whitfield, Jr. Jan Whitt Hunter Williams Todd Williams John Williams Ralph Wilson, Sr. Bnlce Wilson Ronald Wilson

Teresa Wineland R. L. Wommack Stephen Wood Marsha Woodruff

Randall Wright Howard Yates Dennis Zolper Joseph Zurborg


YOUNG LAWYERS' SECTION REPORT The work of the Young Lawyers' Section has been largely accomplished through the Executive Council which is composed of a Chair, Chair Elect, Secretary-Treasurer and two representatives from each district in the State. The following will give you an idea of the quality in the young lawyers who have worked so hard in serving our Section during this bar year. Greg Jones, a partner with the Wright, Lindsey & Jennings firm in Little Rock, is currently serving a::. Chair Elect and will automatically assume the Chair at the Annual Meeting in June 1990. Greg has served as Chair of the Bridging-the-Gap Seminar (or the last four years and has been a speaker regarding trial practice for two years. Greg's practice is primarily in the area of civil litigation. Steve Quattlebaum was elected Secretary-Treasurer at the Annual Meeting in 1989. He is a partner with Williams & Anderson in Little Rock and primarily works in the areas of products liability and bu iness litigation. Steve is a volunteer with VOCALS in Pulaski County. David L. Sims is the Senior Representative' from the Southern Bar District. He is an associate with Bridges, Young, Matthews, Homes & Drake in Pine Bluff and practices primarily in insurance defense litigation, real estate law and commercial litigation. He is a member of the Debtor/Creditor Law and Health Law Committee of the Senior Bar. David has served as a District Coordinator and a judge in the Mock Trial Competition. The junior Southern District Representative is Raymond Bornhort \vho is an associate with Smith, Stroud, McClerkin, Dunn & utter in Texarkana. He primarily practices in the fields of federal and estate taxation. The Central District is represented by james W. Cherry, jr. who is serving as Assistant General Counsel of Dillards Department Stores, Inc. His current practice emphasizes labor and employment issues and real estate and general commercial litigation. He is active in VOCALS in Little Rock. The junior Central District Representative is JoAnn Goldman, who is an Attorney-Advisor with the United States

1 0

ARKA

SAS

Much of YLS Work Accomplished Through Efforts of Executive Council

By Rosalind M, Mouser Tru tee's office in Little Rock. She is responsible for monitoring the administrative aspects of Chapter 11 bankruptcy cases, and assisting the panel trustees in their administrative duties. JoAnn is a member of the Debtor/Creditor Law Committee and has been a speaker in the Basic Bankruptcy Seminar sponsored by the U.s. Trustee's office, bankruptcy courts and this committee. JoAnn has also been a speaker at the Bridging-the-Gap Seminar. The orthwest District is represented by Bill Watkins, who is a partner with the firm of Scott, Lashlee & Watkins in Rogers. lie specializes in commercial litigation, general corporate work, real estate and secured transactions. The junior orthwest District Representative is Lynn Williams, who is a partner with Hickam, Williams & Farnell in Hot Springs. Lynn's practice is primarily in the areas of civil litigation and commercial and criminal law. She is the Garland County Small Claims Referee

LAWYER

APRIL

1990

and is an instructor in Business Law at Garland County Community College. ortheast Arkansas' Senior Representative is Lucinda McDaniel, who is a partner with Barrett, Wheatley, Smith and Deacon in jonesboro. Her primary areas of practice are general casualty, medical malpractice and products liability. She is Chair of the Law Day Committee for our Section and is also hair of the Youth Education Committee for the Senior Bar. She is Vicp-President of the UALR Law School Alumni Association. The junior ortheast District Representative is Edward Boyce, the Section's Imlnediate Past Chair, who is a partner with the law firm of Boyce & Boyce in Newport. Ed's practice is primarily in agricultural matters, estate administration and real estate and title questions. He currently serves as prosecutor for the cities of Diaz, Swifton and Grubbs. He is Chair of the IBM DisplaywrHer User Group of the American Bar and serves on the Board of Directors of Legal Services of ortheast Arkansas. Without the help of these industrious individuals, the work of the Section could not have been successful. As Chair, I extend my gratitude to each of these co\vorkers, not only for their dedication to the Bar, but their dedication to the profession and their respective communities. The Section is always looking for additional active members and would encourage you to contact any of us regarding the same.

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Profile of a Historical Arkansan

SAMUEL CALHOUN ROANE Member of the Bar & Prosecutor for the States in the Arkansas Territory By Frances Mitchell Ross, Department of History, University of Arkansas at Little Rock This article is OOSl'd

lire Pulaski was p~red ill conjul/ction with thi' twtlror's work as a member of the History oflile Bar Committee, Arkansas Bar Association_ 011

a paper presented

10

COlmly Bar AssociatiQIl, Mnrch 10, 1989; and

"There has not as yet been any suits on the part of the United States instituted in the Superior Court of this Territory" wrote Samuel Calhoun Roane in an October 1821 report to the Auditor of the Treasury Department in Washingto, D. Co, eight months after his confirmation to the part time position of United States Attorney for Arkansas and 17 months after he had

received a temporary commission to the same position. Six months later, in April of 1822, Roane wrote the Treasury agent in Washington, D. C., that in response to the agent's instructions he had initiated over 100 suits for trespass on public lands. The specific offense was for illegal timber cutting on government property. He later reported that some of these suits had been tried at the August 1822 term of the Superior Court, the federal court for the Arkansas Territory. He described in detail, however, the nearly impossible task of prosecuting a largely transient population and advised the Treasury Department to expect only minor recovery in future efforls. During the same years when his work as U.s. Attorney seemed sluggish, Roane pursued the cause of his private practice with vigor. He became a successful politician as well. In view of the emphasis which he placed in these areas, his handling of government cases raises some questions. First, who was Sam Roane and how did he chart his career? How did Roane balance his government responsibilities with his private practice? Did the absence of suits in the early years suggest that United States interests were secondary to those of the settlers, or was Roane simply practical in his government work, tackling those challenges which seemed winnable? How did he manage to win reappointment every four years until statehood in 1836?

Born in North Carolina and raised in Tennessee, Roane had migrated to the Arkansas region shortly after service in the War of 1812. Around 1818, single and age twenty five, he settled at the Post of Arkansas, located near the mouth of the Arkansas River and the political center of the territory at that time. He opened a law office at the Post and in January of 1820 was among the first attorneys enrolled in the Superior Court of the newly created Arkansas Territory. Roane's earliest business relation-ships were of short duration. In July 1819, he had formed a law partnership with Joshua Norvelle, formerly district attorney for the Missouri Territory in Arkansas and later prosecuting attorney in the Arkansas Territory. This parblership was short lived, however, since Norvelle soon moved from the territory. After Norvelle's departure, Roane kept his office open at the Post and kept books for a mercantile firm as well. He also worked temporarily for William E. Woodruff at his fledgling newspaper, the Ar/(f/llSllS Gazette. Here he helped operate the press, did other work in the office and occasionally wrote for the paper. Roane's prospects for a political future were apparent as early as 1820. First came his selection as engrossing clerk for the 1820 legislative session and his appointment as United States Attorney. His 1821 election to the Legislative Council, the Upper house of the territorial legislature, was followed by his election as Council President, an office which he held for two terms. He served as United States Attorney and simultaneously as a member of the territorial legislature. Clearly, Roane was making a mark in politics of the time. Roane utilized other opportunities, as well, to promote his name. When in the early 1820s, Little Rock became the territorial capital of Arkansas, Roane moved his residence from the Post to the new capital. In Little Rock he earned respect in the legal community for his knowledge of law and his technical skills. He announced in 1823, for example, his

intent to compile and publish a digest of territorial laws, the only one, he said, which would be current for Arkansas. The proposed 600 page leather bound volume would sell to subscribers for $5, although those who procured 10 subscribers and collected their money would earn a free copy. In 1830 Roane published a second compilation of territorial laws which further enhanced his reputation as an erudite member of the bar. As an attorney in private practice, he pursued strategies which drew attention to his services, advertising in the Gazette, for instance, that he would accept "Territorial Script at par in payment of fees." Script, issued by the territorial treasury because U.S. dollars were in short supply, had no specified term for redemption and no collateral for security. It was essentially equivalent to an 1.0.U. 0 other lawyer advertised publicly that he would work for this fee. For Roane, however, this helped make his services available to all segments of the public, and it suggests that in building a practice he was both innovative and daring. Roane also built a name as a litigator. While his precise respon-sibilities in this Superior court trial cannot be determined, Roane associated with Chester Ashley and Neil McL1ne in 1822 to represent Arkansas resident Edmund Hogan in a suit against William Russell, S1. Louis lawyer and land speculator. Repre-senting Russell were William Trimble, later a member of the Superior Court and Ambrose Sevier, later territorial delegate to congress. The suit, which may have turned more on personality conflicts than on issues of landmark significance, is nevertheless a colorful episode in the territory's litigation history. Hogan, who in 1816 had represented the county of Arkansas in the Missouri Territorial legislature, charged Russell with writing and distributing a libelous letter in an effort to cause Hogan's defeat in the 1821 elections to the Arkansas legislature. Russell's letter, which is extant, touched all bases. According to the letter,


r

other trials in 1822 and the positive publicity which resulted, Roane could count this as a gexxt year. Scientific examination of A sequel to this trial, however, came in Handwritten, Typewritten, the summer of 1823. Although it is not Printed, Altered. Obliterated, know if Roane acted as counsel in this Charred and Office Copier round, it nonetheless provides an Documents; Ink and Paper interesting postscript to the earlier Analysis, Dating and other doclitigation. Russell again filed a motion for a ument-related problems. new trial, daiming new evidence and new Diplomate of the American facts. He promised, further to produce Board of Forensic Document witnesses who would confirm the charges Examiners, Inc. Member of the which he had made in his initial letter and American Academy of Forensic witnesses who would also verify his new Sciences. complaints. These, he said, were his new facts. During a dinner recess in the first trial, the jury was left unattended and ROBERT G. FOLEY permitted to "go at large." Hogan seized FORENSIC DOCUMENT EXAMINER upon the opportunity. He bought "ardent 1109 North 4th Street spirits" and gave them to the jury. The Monroe, LA 71201 jurors "drank freely." They also conversed 318-322-0661 as freely with Hogan. Later in deliberations, Russell said that the jurors QuoUfi~ and Ex~,'.nc.c1Ex"." Witness avoided serious discussion and simply In Fe<hrol, State, Munlclpol agreed to put down the figures each and Military Courts --- ' thought the verdict should be. Then they Hogan in his 1816 campaign had privately totaled it up and divided by twelve. Hogan agreed to support two different ArkanSc1ns was summoned to appear in court to for the one available position in the upper answer the charges. Did Hogan "buy" the house of the Missouri legislature. Each jury? The question cannot be answered. candidate, on the other hand, promised to Court records which might reveal the support Hogan for the lower house. outcome of the issue at this point have not Further, Russell claimed that Hogan, upon been located. More remains to be learned arriving at 51. Louis for the session "spent both about this phase of the litigation and such part of the time as" he "could spare about whether Roane had a role in it. Opportunities continued to open for from gambling... in legislation;" moreover, Roan in the 1820's. In April of 1827, Acting Russell declared that in spile of the hatred which Hogan knew Arkansans bore for Guvernor Robert Crittenden appointed Missouri Governor William Clark, Hogan Roane as Judge for the First Judicial Circuit had had one meal at the governor's table of the territorial court system. This position and named Clark County in Arkansas to he held until October of the same year, after honor him. This, Russell said, insulted the Governor George Izard returned to the very people who had elected Hogan. And territory. Izard determined that it was there was more. Russell said that Hogan, improper for one individual to while in St. Louis, had played cards with a simultaneously serve as territorial Circuit Negro named Lyon who kept a tipling shop Judge and as United States Attorney. "until he brought the very name of Roane was forced to decide which position Arkansas into disgrace, which it has not yet he preferred to hold. Assuming that Roane entirely recovered." Russell further would resign as U. S. Attorney, William charged that Hogan refused to pay his Parrott applied for the position. Roane, debts or keep his word, that he got whose federal commission was not due to acquaintances more drunk than himself in expire for two years, resigned the judgeship order to win their money or property, and instead. Following hi~ resignation from the that at camp meetings Hogan "is the most sanctified of all," yet he is "one of the bench, Roane resumed both his law practice foremost and leading men amongst those and his policy of accepting Territorial Script who get drunk and gamble on Sunday." for legal services. He could be located, he Hogan sued for libel. After a twcxlay trial, advertised, at his residence near the mouth the jury returned a verdict for Hogan of of Plumb Bayou in Pulaski County. $2,400. Defense counsel moved for a new Roane's eagerness to build a legal empire trial, partly on the ground that damages was no doubt prompted in part by family were excessive. The court denied the considerations. In 1825 he married Julia motion. Because of victories in this and Embree, member of a landed family in

HANDWRITING EXPERT

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Jefferson County. In the words of one 19th Century author, "Julia had varied charms, and Roane fell in love." The couple had nine children. While Roane was apparently successhll in private practice and in his personal and political life, what of his government work during these years? How did he manage this public trust and balance it with the other demands which he faced? Some of his highly publicized trials as United States Attorney were prosecutions for murder. One, for example, was the 1828 trial of John Strickland for the murder of George Decon, both privates in the Army stationed at Cantonment Gibson. After deliberating "but a few minutes" following the trial, the jury returned with a guilty verdict, made all the more predictable by Strickland's confessional to the deed given while he was imprisoned. Strickland's execution date was set to occur about one month after the trial concluded. While Roane's murder prosecutions did not always lead to convictions, news-worthy successes such as the Strickland case must have promoted his standing as an effective attorney for the government. Land issues, however, represented Roane's toughest challenges. These were especially thorny problems because the Arkansas territory was largely unsettled and much of it was held in public ownership. Regular monitoring of this vast acreage was impossible, yet part of Roane's duty was to uphold government rights to these lands. In 1822, tl'> noted earlier. he initiated his first suits for the government, suing more than 100 persons for illegally cutting ash and cypress timber on public lands along the Mississippi, Arkansas and Red Rivers. Much of the timber was then cut again and rafted from the territory to ew Orleans. The timber business had wide appeal both to non-residents and to native dwellers. According to Sylvanus Phillips of Helena, "Yankees" came hundreds of miles to cut, raft and sell the wood at 51.50 to 53.00 a cord. These woodcutters, Phillips said, cared little that they stripped strands of timber and lowered the value of the land. Old time settlers also cut wood illegally but they sold the timber for use as firE'w(')("'Kj on steamboats, a long established practice especially along the Mississippi. Regardless of the motivation for cutting wood, the government viewed the practice as stealing public property. Roane brought the suits, as directed by Washington officials, and asked for damages in the amount of $5,000 per person. He anticipated, though, that the


suits would cost the government more than it recovered. He was right. Warned by Roane's published intent to prosecute which had appeared in the Gazette almost two years earlier, much of the transient woodcutting population had vanished from the territory. In those cases which were tried, Roane found that many witnesses refused to testify and evidence could not be produced. When he could get the testimony, he reported that "Jurors manifested such an interest and partiality that verdicts could only be gotten for nominal damages." In the cases where verdicts were returned, Roane said that the defendants fled the territory before even the costs could be collected. The cause of the United States did not wear well with the local population. Roane recommended that the suits be dropped and the land be sold. The Treasury Department eventually agreed and instructed him to begin no more suits and to dispose of those pending with the least cost to the government. The most complicated and controversial land issue which Roane faced involved claims stemming from French and Spanish land grants. Most troublesome among these were the Bowie Claims to over 50,000 acres of land. Roane's handling of the Bowie Claims produced the most intense criticism of his public career. United States Attorney General William Wirt became one of Roane's toughest critics and Territorial Governor John Pope initially called for Roane's removal from office. The French and Spanish land grants

dated from the late 1700's and early 1800's. Numerous claims to thou5.:1nds of acres of Arkansas land remained unconfirmed by

the United States in the 1820's. Congress, in 1824 , directed the Territorial Superior Court to sit as a special land court to adjudicate these claims. Appeals to the United States Court were possible if initiated within a year of the decision.

Until late in 1827 the Court dealt fairly routinely with the claims, confirming many, dismissing some usually for nonpayment of fees. Roane, as U. S. Attorney, was expected to investigate each claim, examining all relevant laws and regulations especially those of French and Spanish origin. He was to take depositions, examine witnesses, attend court regularly and send detailed reports to the Attorney General on each case decided. For this work he received his standard authorized compensation of $250.00 a year. While Attorney General Wirt had voiced displeasure with Roane's work in these cases in earlier years, by 1828 he was outraged by the handling of the claims. His

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displeasure had intensified following the court's rapid confirmation of the Bowie Claims late in 1827. Wirt believed that evidence had been ignored which should have raised questions about the validity of

these claims, that the judges were probably partial to the claimants and that Roane was surely inept as the government's attorney. Roane's government career seemed less secure at this point than ever before. Wirt further condemned the quality of Roane's reports, writing that they left him "entirely in the dark" as he "was before" he received them. He complained that the Spanish documents were poorly handled and lhat Roane's motions for appeals were too late resulting in the approval of clearly fraudulent claims. Roane responded, repeating complaints he had made earlier but with additions. He said he was overworked and underpaid. The judges, he reminded Wirt, received an extra $800.00

per year for this work while he received nothing except $5.00 per day when in court. He complained that he had to travel to Louisiana for depositions at his own expense; that it was difficult to get testimony because the people who were the most knowledgeable all had interest in the claims; that the court continually overruled his motions for appeal; and that as far as the Spanish documents were concerned, they were in New Orleans, he was in Arkansas, they were in Spanish, he knew English. He agreed, however, that some of the claims were fraudulent. In response to some of these complaints, the government finally authorized assistance. Isaac Preston, knowledgeable in Spanish language and law, came briefly to Little Rock from the New Orleans land office. Convinced through his own research that massive fraud had occurred, Preston discussed with Roane the possibility of

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seeking revisions of the court's earlier decision. Roane thought it might be

possible but was pessimistic because "of EDWARD l. WRIGHT 11903-19771 RONALD A. MAY GEORGE E. LUSK, JR. EDWARD l. WRIGHT, JR. ISAAC A. JR. JAMES M. MOODY JOHN G. L1LE GORDON S. RATHER, JR. TERRY L. MATHEWS WILLIAM D. HAUGHT DAVID M. POWELL ROGER A. GLASGOW C. DOUGLAS BUFORD. JR. PATRICK J. GOSS ALSTON JENNINGS, JR. JOH N R. TISDALE KATHLYN GRAVES M. SAMUEL JONES III JOHN WILLIAM SPIVEY III BRUCE R. LINDSEY LEE J. MULDROW WENDELL L. GRIFFEN N. M. NORTON, JR. EDGAR j. TYLER CHARLES C. PRICE CHARLES T. COLEMAN JIMMY W MITCHELL JAMES). GLOVER EDWIN l. LOWTHER, JR. CHARLES L. SCHLUMBERGER SAMMYE L. TAYLOR WALTER E. MAY ANNA HIRAI GIBSON GREGORY T. JONES H. KEITH MORRISON THOMAS C. COURTWAY BETTINA E. BROWNSTEIN WALTER McSPADDEN ROGER D. ROWE NANCY BELLHOUSE MAY AUDREY R. EVANS NATE COULTER ROBERT M. HONEA JUDY SIMMONS HENRY MARK l. PRYOR RAY F. COX, JR. HARRY S. HURST, JR. DEBBIE M. TROY A. PRICE PATRICIA SIEVERS LEWALLEN JAMES M. MOODY, JR. KATHRYN PRYOR GEARHART

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the number of parties interested." Talk of reopening the Bowie Claims, indeed, produced a storm of protest from local leaders, but to no avail. Congress, certain that faulty decisions had been rendered, declared in 1830 that all confirmed claims were to be reviewed again by the Court. To facilitate this work, the govern-ment also provided Roane with legal support. New Orleans attorney J. J. Mercier was employed to take depositions for Roane in New Orleans. William Fulton, a fresh face and the new Territorial Secretary, became assistant counsel to Roane for the prosecution of these cases. Armed with this mandate from Congress plus Fulton's eagerness, Roane filed motions for bills of review for all the Bowie Claims. Over the next few years most were shown to be fraudulent, drawn up in the names of fictitious people by unscrupulous land speculators and then sold, sometimes to the unwitting and sometimes to those who were willing to gamble in questionable claims. The result of this work substantiated the government's right to between

50,000 and 60,000 acres of land. Moreover, Roane's job was saved, his critics silenced. Attorney General Wirt had been replaced and Governor Pope had decided that the judge was at fault rather than Roane. Roane survived this period of controversy, his career intact, and he continued as United States Attorney until statehood in 1836.

While Roane did not hold the federal commission after 1836, both his legal and political interests continued to prosper. His agricultural business on the Embree lands in Jefferson County also thrived. Around 1836, he moved his family to this plantation near Pine Bluff and in the 1850 census reported that he held 86 slaves and real estate valued at $15,000. He died two years later, among the wealthiest men Jefferson County. What can be concluded about the career of Sam Roane in territorial Arkansas? How did he manage his multiple responsibilities, building a private practice and continuously winning reappointment as U. S. Attorney? Skilled as a private attorney, Roane was also innovative in marketing his services and products. He was part of the political network with allies in the major

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local camps, territorial delegate to Congress, Ambrose Sevier, for one. Further, he had support at the national level. President Andrew Jackson, who had been Roane's neighbor in Tennessee and his military commander, reappointed Roane twice during the period of the land fraud controversy. Moreover, some noteworthy courtroom successes kept Roane's name in the news. He had strengths in many areas. Yet as prosecutor, he selected his government tasks according to what he though was possible, practical and expedient. Although sometimes criticized for his handling of government matters, he viewed some issues as unmanageable, others as likely to be fruitless or costly to himself or to the government. He defined his work according to the limitations of the time. When prosecution seemed unrealistic, he proposed alternate solutions to the problem. When criticized for negligence in prosecutions which he did pursue, he pressed the government for resources to meet demands of the job. In these battles with Washington officials, Roane usually prevailed. These victories along with his record as a successful attorney and his important political ties must be key factors which aCctX.U1t for Roone's rontinuotls reaPfOintment througho..!t the territorial period.

Clarence Edwin Carter, ed. Territorial Papers of the United States, Arkansas Territory, 1819 -1836. Vol. XIX, XX, XXI. Washington, D. c., U. S. Government Printing Office, 1934 - ff. An invaluable collection of official documents and correspondence which details relationships between the federal government and the Arkansas Territory. This is the chief source used in this article to follow Roane's career as United States Altorney. Waddy William Moore. "Territorial ArkallSils." Ph.D. diss., University of orth Carolina, 1%2. Useful for an examination of the

institutions and issues of the territorial period. Margaret Ross. Arkansas Gazette, The Early Years 1819 -1866. Little Rock: Arkausas Gazette Foundation, 1969. Impurtant to an understanding of the territorial and early statehood years of Arkansas and to the role of the Arka"sas Gazette during these years. C. R. Stevenson. Arkansas Territory-State

and Its Highest Courts. Little Rock, 1946. Useful review of the Arkansas Territorial Superior Court, the state Supreme Court and the judges of these courts.

30 Sl S 08L

Selected Bibliography For fllrlher review, a brief bibliography of sources useful i" preparation of this nrticlp is

provided i" lieu of noles. Arlalllsos Gaulle 1819 - 1836.

Indispensable for a study of the territorial period. This newspaper is available on microfilm at the Arkansas History Commission and in university libraries in the state. Morris S. Arnold. Unequal Laws Unto A Savage Race: European Legal Traditions in Arkansas, 1686-1836. Fayetteville: University of Arkansas Press, 1985. Provides important background to and an overview of the territorial period. Chesler Ashley Papers.

Important collections are held both by the Special Collections Department in the library at the University of Arkansas at Little Rock and by the Arkansas History Commission. The papers provide valuable insight into the legal, business and political careers of this prominent early Arkansan.

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ARKANSAS I STITUTE FOR CONTINUING LEGAL EDUCATION By Deb Garrison If you have ever attended a seminar sponsored by the Arkansas Institute for Continuing Legal Education (AICLE), you have undoubtedly seen our program evaluation forms. These forms serve as a means of determining whether we are serving the continuing education needs of the legal community. Quite simply, the evaluation forms are our "report cards". And just like school children, we look forward to receiving your evaluations with much anticipation and a little trepidation. In fact, on Monday morning after a

program, you can almost always find AICLE staff poring over the evaluations, reading them aloud and brainstorming ideas to deal with some of our customers' criticism. Because we are constantly striving to improve the quality of our programs, we welcome your ideas, suggestions and, yes, even your criticism. However, there are a number of complaints we receive on a regular basis about areas of CLE programming over which we have very little or absolutely no control. Because these situations are obviously frustrating to the attorneys who attend our programs, I thought it would be a good idea to address some of the complaints we receive, to share some information and to suggest some possible solutions: CRITICISM: "The are too many CLE seminars." But for the fact that this criticism is given in response to the question "What do you dislike about AICLE programs?," we would have taken it as a compliment. AICLE was founded 12 years ago with the primary purpose of promoting and administering a planned and comprehensive program of continuing legal education in Arkansas. Our Board has consistently supported the expansion, both in number and variety, of CLE programs offered by the Institute.

The Board and staff have long recognized that with the advent of minimum CLE, we must offer increasing educational opportunities for attorneys throughout the state in every practice area (large firm, government, solo practice, inhouse and public interest). We don't perceive having "too many programs" as a problem when we consider the alternative. Imagine having to meet your MCLE requirement from a handful of programs in limited areas of the law available only in the bigger cities! We believe that it is essential to present programs that reflect the entire scope of the profession so that lawyers find CLE a meaningful experience rather than just of method of satisfying credit hours. In order to accomplish this, we must continue to offer a wide variety of CLE programming. You should also know that AICLE isn't the only CLE provider out there. Forprofit providers such as ational Business Institute and Professional Education Systems have increased their offerings in response to MCLE. Of course their goals in offering more programs are quite different from ours. They are in the market to make money and are, therefore, not particularly concerned about reaching out to less wellhealed lawyers or making programs available in the four corners of the state. CRITICISM: "MCLE stinks. Why don't you have 50-minute hours like Texas? Why don't you require ethics? Why do we have to obtain 12 hours? Etc." AICLE has absolutely no control over the niles and requirements of MCLE. The Rules, which were adopted by the Supreme Court in March 1989, established the Arkansas Continuing Legal Education Board which does sound closely akin to the Arkansas Institute for CLE (AICLE). Rest assured, however, that we are two separate and very different entities. AICLE is a nonprofit CLE provider subject to the MCLE rules. We submit each of our programs to the Arkansas Continuing Legal Education Board for its approval. If we don't meet the standards for program accreditation, we could lose our accredited sponsor status, just as an attorney who doesn't obtain 12 hours of credit could lose his license. The Arkansas Continuing Legal

Education Board, on the other hand, is responsible for exercising general supervisory authority over the MCLE rules, including the imposition of sanctions for noncompliance and the implementation and administration of the rules. Day-to-day operations of the MCLE program are overseen by Chris Thomas, Director of Professional Programs for the Supreme Court. Therefore, if you have suggestions regarding any aspect of minimum continuing legal education, you should contact Chris Thomas at (501 )664-8737. CRJTICISM: "The meeting room is too cold/hot." Unfortunately, AICLE doesn't have its own meeting room facilities like many of the bigger CLE providers in the nation. We must book meeting space with local hotels. The very nature of most of these rooms (large, high ceilings, numerous entrances) coupled with the physics of a large group in an enclosed space apparently makes it difficult to regulate room temperature. In addition, what's "too cold" for some is "just right" for others and vice versa. We will be happy to alert hotel staff when room temperatures become unbearable. However, yOll may want to bring a jacket with you to insure your comfort. CRITICISM: "The speaker's microphone didn't work and the group next door was too loud." These are serious problems. What good is attending a seminar if you can't hear the speakers? We always check sound equipment prior to a seminar. Unfortunately, microphones often have a mind of their own, and our only recourse is to have a hotel staff person order another microphone from their A/V supplier. Noise from other groups can usually be remedied by a quick visit from the Hotel Catering Manager or General Manager. Other than doing our best to get the hotel moving quickly on these kinds of problems, our solutions in these areas are limited. The best solution would be to acqu.ire our own meeting rooms so that we no longer have to depend upon hotels for space.


CRITICISM: "The meeting room was crowded." We are required by the Arkansas Rules for MCLE to provide registrants with adequate writing surfaces.

This means arranging the room with tables and chairs. thus limiting freedom of movement. In addition, the first year of MCLE has caused an increase in attendance that, quite frankly, we weren't always prepared for. As a result, we are now including a disclaimer in all of our brochures that "because space is limited, at-the-door registrants will be admitted only after all advance registrants are seated." We were able to put this policy into action at the Mid- Year Meeting and, as a result, received fewer comments about crowding. CRITICISM: "The cigarette smoke drove me crazy." We have taken this criticism to heart and have recently established a no-smoking policy (or all seminars sponsored by AICLE and the Association. So you can see, we do read the evaluations, and we do want your constructive criticism. So keep those "report cards" coming.

UNIVERSITY OF ARKANSAS AT FAYEmVILLE SCHOOL OF LAW By Dean

J. W. Looney

Marshall. the Designated Hilter Rule and the Plenary Power of Congress Over the Indian Nations: Some Personal Reflections on 'the Actual State of things.' His article Indian Treaties and Tlleir Abrogation by Statutes of Gweral Applicability: A No/-Entirely NonPartisall Essay 011 'Quiet' Abrogatio1ls, 'Actual' COllsideratiolJ, alld the UlIhappy Receptioll Givell Ullited Stales v. Oioll appears in the Brigham Young University Law Review. Jake Looney spoke at the Eta Kappa u annual banquet on "Change in the Soviet Union," and at a symposium on Plant Variety Protection at the University of Missouri. His article Prompt Payment

and Statutory Trust Provisiolls for Sellers of Livestock, Poultry and Perishable Agriculturaf Commodities" appeared in Agricultural Law Update and on one "Recent Developments in Arkansas Water L1W" in Arkansas Farm Research. John Watkins, Robert B. Lenar, Mort Citelman, Paul Schwartz, George Skinner, Mark Killenbeck and Ann Killenbeck attended the Association of American L1W Schools meeting in San Francisco. Mary Beth Matthews, Mark Killenbeck, Chauncey Brummer and Robert Laurence spoke at the Mid-Year Meeting of the Arkansas Bar Association. Paul Schwartz's report on the Council of Europe's Bioethics Conference will be published in the Privacy Laws and Business Newsletter (England). STUDENT ACTIVITIES Kristine Schwan was named "Tenth Circuit Member of the Month" by the Law Student Division of the American Bar Association for December. Elizabeth Vines was selected for the month of January. She serves as Lieutenant Governor for Minorities and Women for the Circuit. Don Trimble and Malcolm Simmons represented the Law School in the Frederick Douglas Moot Court Competition in Chicago. Attending the BALSA meeting as delegates from UA were Carlos Ross and Latrece Gray. Jane Burkett and Pierre Walker received scholarships to attend an

ALII ABA program on Environmental Law in Washington, D. C. Dennis and Sherilyn Bennett represented the Law School in the ABA Regional Client Counseling Competition in Houston. SILAS HUNT SYMPOSIUM Two years ago, on the 40th anniversary of the admission of Silas Hunt as the first black student at the University of Arkansas, the School of Law sponsored a major symposium to commemorate that historical event. The program was organized with the close cooperation of the Black Law Students Association and the Harold Flowers Law Society. Last year, the Black Law Students Association took a leadership role in putting together a second symposium recognizing the Silas Hunt anniversary. This year the Harold Flowers Society developed a program to commemorate the 42nd anniv~rsary of SiI"s Hunt's enrollment at the University of Arkansas School of Law. The overall theme of the program was "Political Enfranchisment -the Civil Rights Issue for the 1990's" and focused on the impact of the Voting Rights Act on civil rights litigation and public policy. The keynote speaker was P. A. "Les" Hollingsworth. His pre entation was followed by two panel discussions. The morning panel was moderated by Judge Kathleen Bell of West Helena and featured Oily eal of Marianna and L. T. Simes of West Helena who discussed the political implications of the Arkansas litigation. The afternoon panel discussed "Implications for Public Policy in the 1990's." The panel included Larry Dunklin and Arky Byrd of Little Rock and Bill Lewellyn of Marianna. Wendell Griffen presented concluding remarks. The conference also included a luncheon at which Rodney Slater, President of the Harold Flowers Law Society, made a special presentation honoring the many contributions of W. Harold Flowers.

FACULTY ACTIVITIES Charles Carnes has been appointed Chair of the Arkansas Bar Association Alternative Dispute Resolution Committee and a member of an ad hoc committee on agricultural alternative dispute resolution of the American Agricultural Law Association. John Copeland spoke at the Washington County Beef Short Course on trespass and landowner liability. Robert B. Lenar attended the Food 1------------------'-------------------, and Drug Law Institute focusing on current development in food, drug and ACOUSTICS & AIR QUALITY medical device law for FDA, industry and academics in Washington, D. C. Mort Gitelman has been reappointed .Industrial and community noise studies .Audible warning signal evaluafion tu the Arkansas State Advisory CommittPf' .Air quality and ventilation testing .Industria I health and safety assessment to the U. S. Commission on Civil Rights. John Watkins is spending the Spring Fifteen years experience Expert witness (state and federal courts) semester as a fellow at the Joan Certified Industrial Hygienist Institute of Noise Control Engineering Shorenstein Barone Center on the Press, Politics and Public Policy at the John F. Kennedy School of Government at THOMAS W. RIMMER, MS, CIH Harvard University. His book The Mass 40 Pine Manor Drive Media and the Law was recently released Little Rock, Arkansas 72207 by Prentice Hall Press. Bob Laurence has an article in the (501) 663-4742 ---' Federal Bar News & Journal on Jollll L -

1 8

ARKANSAS

LAWYER

APRIL

1990


LAW OFFICE MANAGEMENT: WHAT'S NEW?

CASEBASE: A Long Time in the Making By Kyle D. Parker, Inventor of CASEBASE Legal Research System Like it or not, the electronic information age has reached the law profession. The Federal Court system in Arkansas is now completely electronic. In the larger circuits in Arkansas, pleadings, dockets, criminal histories, and even deeds and mortgages are searched electronically. As such, lawyers are being forced to become computer literate. But the problem is, and always has been, that the software programmers do not understand the law business, period. Take the legal forms, for example. While there are numerous software packages containing legal forms, they 'are usually not modifiable. And even when they can be modified, the programmers have not taken into account

that while each form has its "boiler-plate," language, there is always some paragraph that has to be significantly modified, like the number of children born during the marriage in the case of a divorce complaint. As such, modifiable "merge" forms are rendered useless. While as a student at the Franklin Pierce Law Center in Concord, ew Hampshire, I was given a unique opportunity to study this electronic information explosion. In 1984, a study group was formed to cneate tools for the lawyer and to study electronic information and its impact on the law. It was found rather quickly that most state laws were simply inadequate to deal with electronic information. For example, consider the crime of burglary. With today's electronics and the help of a modem, a person can simply phone the occupants computer and download or copy any and all records found on that machine. There is no physical invasion, since the occupant placed a modem on their phone for the very purpose of access to the computer. There is also no physical taking, only a copy is made of the data. And since many of today's pay phones provide modular jacks to hook up modems, identification of the criminal is a nightmare. Fortunately, some states like Arkansas are enacting laws to prohibit this type of "taking." However, those laws have not been tested constitutionally and are certainly suspect in the area of vagueness and overbreadth. With time, and hopefully in a short time, the legal profession will learn how to deal with tackling the appropriate uses of

computers from both the criminal and civil privacy standpoints. There have been a number of software products introduced in the legal marketplace, all directed at office automation. There are sophisticated word processors, billing systems, conflict of interest checkers, litigation support and docketing software. While these products flat push out the paper, track receivables, provide a trial notebook and schedule the work week, they are perceived by lawyers as expenses to the firm and a task that can be delegated to the secretary. But when it comes to pUlling a computer on the lawyer's desk, these products seem to fail. As a law student, I was constantly frustrated with researching the law. ot that the law was hard to understand conceptually, but it was almost impossible to use the digests and index systems of the books to find the law. I could never seem to understand how the "indexers" placed a certain subject in a given anea, even after I had found the case. As such, I began to research and develop a system that would allow the lawyer to use his three years of being bombarded with legalese into an understandable researching tool. The end result is the service, CaseBase. CaseBase was developed with the help of the Arkansas Supreme Court and Arkansas Court of Appeals. It will soon be used by them to research Arkansas the case law when deciding your appeals. CaseBase is a service that is designed to put a computer on the lawyer's desktop. Released at the Mid-Year Meeting of the Arkansas Bar Association in January 1990, after four years of research and a year of development, CaseBase has, at this time, the full text opinions contained in nle Arkallsas Reports with the Supreme Court decisions back to 1950 and all of the Arkansas Court of Appeals decisions. CaseBase is contained on a CD-ROM. Compact Discs, which you ane probably already aware of, has thousands of releases in the record album business. They are only now becoming available in the computer world. The round disc is enclosed in plastic and is read by a laser beam. The disc will last beyond you and your children's


lifetimes. CaseBase can be used on any IBM-PC compatible running under the DOS environment. So what, you say, Westlaw and Lexis have had on-line full-text research for years. The answer is simple. Unless you can afford $4.50 per minute, a monthly fee, an extra phone line and are extremely competent with West's structured query languages, Case Base is the answer for you. CaseBase doesn't cost you a dime to research for hours upon hours, as everything fits into your office computer. The price is less than what you will pay for the books and digest materials, and the speed of the retrieval is much faster than that of the phone-line services. Until now, electronic software retrieval engines were limited to searching by means of Boolean logic, which is searching by phrases, proximity, and the "and," "or," "not" limiters like: marijuana "and" vehicle, marijuana "or" vehicle, marijuana /lnot" vehic.le. Well, it doesn't take long for a person to construct a search that would yield cases that are not relevant to the issue you are searching. This fallacy is the result of programmers, not lawyers, creating the database. Casebase was designed by a practicing trial lawyer which is of utmost importance to any good legal computer program. The average programmer simply does not understand the legal environment, the data or the way you think as a lawyer. While one can eventually construct a complex search with Boolean logic to find the needle in the haystack, Casebase felt it necessary to further break down each case into separate logical sections on how you think as a lawyer. As such, and unlike the on-line services, you can tell Casebase to search the full-text or one of twelve

different logical sections of the opinion itself. For example, you have the power to search by the plaintiff or defendant name, third party citation, year or a series years, case topics, the judge appealed, the County appealed, the Court appealed, the attorney's on appeal, the justice rendering the majority opioion, the majority opinion itself, the dissenting justice or opinion, supplemental opinions, and even the dissenting supplemental opinions. As a citator, you can simply type in the rule, statute or case citation, and Casebase will retrieve and display every case that has ever cited that particular rule, statute or case. That kind of searching power is impossible in books, and it is very persuasive in Court or on appeal. You even have the power of reading a particular case, highlighting given text within that case and having Casebase go look up every other occurrence of that text in every other case, all in seconds. After you have found a particular case or cases, you have the ability of printing any part of that case to your printer, or even the power to send a file to your word processor where the language of the case can be placed directly in your brief. As such, you no longer have to photo-copy the book, highlight the section and have your secretary type it in. Casebase is a research tool affordable to the sole practitioner. It is truly an investment and not an expense

as the speed and competency of your research will drastically increase. That means real money, and the good Lord knows, more fishing.

Editor's Note: Kyle D. Parker is an attorney pmcticing in Fort SlIIith, with the Parker Law Firlll.

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20

ARKANSAS

LAWYER

APR I L

990


Tizere follows a montlzly report of activities for the Committee all Professional COlldllct for tlze mOlltl, of November 1989, ill accordallce witlz mles of tlze Arkallsas Supreme Court. Formal complaillts filed witl, tlze Committee Oil widell the members voted 110 action was warranted nllmber 3. Informal complaints upon which liD action was taken of a disciplinary nature lIumbered 12. Three warnings were issued. Two letters of reprimand were isslled tlzat became filial ill November to attomeys JOIzII L. KeaTlley of Pille Bluff and C. W. Knouts of Piggott. AttoTlley Miclzael Salama of Fayetteville was suspellded from tlze practice of law for a period of two years. Attonley Clifford Cole 1I0W of Memphis, Tennessee, was suspended from tlze practice of law for a period of aile year. Mr. Salama Izas filed all appeal, alld Mr. Cole's time for filillg all appeallzas 1I0t nlll.

JOHN L. KEARNEY Mr. Kearney was issued a letter of reprimand for violation of Rules 3.4 and 8.4 as a result of a complaint filed by Mr. J. Neubauer. Mr. Neubauer states that his company was the defendant in a lawsuit filed by Mr. Kearney on behalf of the plaintiffs in 1987. He states that Mr. Kearney's repeated failures to comply with the court's orders and the requirements of discovery prejudiced his ability to prepare for trial and subjected him to unnecessary expense and delay. orders of U. S. District Judge Elsijane Roy filed on October 13, November 13. December, 1987; February 1, 1988; and April 20. April 26. 1988, reflect that Mr. Kearney failed to comply or did not comply in a timely manner with the Federal Rules of Civil Procedure and the specific directives of the Court pertaining to the filing of pleadings and other legal documents. The Order of April 20, 1989, expresses the Court's agreement with the defendant that Mr. Kearney or his clients, were dilatory and uncooperative in moving the case to trial. The Court, in its Order of April 26, 1989, found that Mr. Kearney had to be repeatedly admonished to file pleadings, and as a result, the Court imposed monetary sanctions against Mr. Kearney in the amount of $1,250. Although Mr. Kearney did not nespond to the complaint herein, after requesting an extension of time to do so, the April 26 Order reflects that he admitted the noncompliance and offered an explanation to the effect that time constraints caused by a heavy case load prevented him from complying with the Rules and court orders.

c. W. KNAUTS CLIFFORD COLE

contribution. However, Mr. Cole testified that Mr. Knauts did make some sort of statement to the Finchers about contributing money to a candidate for office. In his testimony, Mr. Knauts admitted making a comment to that effect. The explanation offered for making such a statement and the subsequent discussions about the contribution was that it was an attempt to humor, placate, pacify or acquiesce in the obsession of, a person who was perceived as highly agitated, irrational and suffering emotional and physical disabilities. In Mr. Cole's response and testimony, he admitted representation of Mr. Landers and confirmed numerous conversations with Mrs. Fincher concerning her brother's difficulties. In his affidavit, he basically denied making or being a party to any suggestion concerning a campaign contribution for the benefit of Mr. Sanders, while in the same document, he circumspectly acknowledged that if any such comments were offered, they were for the "purpose of consoling an intermedler which had gotten out of control due to her strong emotions and physical problems." Mr. Knauts' affidavit omits any reference to the making of any statement in the presence of the Finchers relating to a money contribution to a political candidate. However, Mr. Cole's testimony revealed that Mr. Knauts did make some sort of comment to the Finchers in regard to a campaign contribution and Mr. Knauts admitted as much in his testimony. The explanation offered for making such a statement and the subsequent discussions about the contribution was that it was an attempt to humor, placate, pacify or acquiesce in the obsession of, a person who was perceived as highly agitated, irrational and suffering emotional and physical disabilities.

Mr. Knauts was issued a letter of reprimand, and Mr. Cole was suspended from the practice of law for a period of one year for violation of Rules DR1-102 and 9101 of the Disciplinary Rules of the Code of Professional Responsibility as a result of a complaint filed by Wanda Fincher. Ms. Fincher stated that Mr. Cole was hired in 1982 to represent her half-brother, Danny Landers, in a civil rights action against the Arkansas Department of Correction for damages arising out of the amputation of one of Mr. Landers' legs and to pursue Mr. Landers' release from prison. In April 1984, while consulting with the law offices of Knauts and Cole, Mrs. Fincher and her husband said that a suggestion was made by Mr. Cole and Mr. knauts for the Finchers to arrange for a $10,000. contribution to the campaign of a certain candidate for public office so as to favorably influence subsequent action for the release of Mr. Landers. It was further averred that the contribution would be funneled through the law firm, but that it would be earmarked as having originated from Danny Landers. Mr. Fincher stated he inquired as to whether this contribution would be in the nature of a "semi-bribe" and, to that question, received a non-verbal acknowledgment from Mr. Cole and Mr. Knauts. Subsequent to that visit, Mrs. Fincher tape recorded a telephone conversation with Mr. Cole, and upon the Mr. Salama was suspended from the advice of a private investigator, recorded practice of law for a period of two years another telephone conversation between for violation of Rules 1.3, 1.4 and 8.4 of the Mr. Cole and Mrs. Fincher a few days later. Model Rules of Professional Conduct as a Each recorded conversation contained a result of complaint filed by Donald discussion of the handling of the proposed johnson. Mr. johnson said he hired Mr. contribution and the benefits expected to Salamo to handle a child custody matter. be derived therefrom on the behalf of Mr. He said he also gave Mr. Salama money to The tapes, along with their transcriptions, be paid through the court clerk for back were submitted to the Committee. 0 child support. Mr. Johnson said Mr. contribution was made in fact, and Mr. Salamo was additionally to file a contempt Sanders subsequently gained his release of court charge against his ex-wife. After through efforts of another attorney. Mr. johnson's wages were garnisheed for In Mr. Knauts' affidavit, he denied ignoring the child support enforcement being present at a meeting with the demands for payment, he found out that Finchers on a particular day alleged in the no contempt charge had been filed and complaint and omitted any reference to that the money he had given to Mr. Salama having heard or made any comment had not been sent. Mr. johnson said Mr. regarding the Finchers making a campaign Salamo lied to him when he confronted

MICHAEL SALAMO


Mr. Salamo about this matter. He said Mr. Salamo refused to return the fee but said he would return the file. When it was not received, he went to Mr. Salamo's office and found it was closed. He said he also learned that Mr. Salamo's home and office telephones had been disconnected. The complaint was received by Mr. Salamo on April 26, 1989. When he did not file a response, a letter was sent to him on May 9, 1989, advising him to file his response as soon as possible. 0 response was received. In a letter dated August 1, 1989, Mr. Salamo requested a hearing, and he was notified that a hearing would be held on September 8, 1989. According to the Supreme Court Clerk, Mr. Salamo's license fee for 1989 is delinquent.

Tllere follows a mall tilly report of activities for tile Committee all Professiollal COlldllct for t/Ie mOlltll of December 1989, ill accordallce witll rules of tile Arkallsas SlIpreme COllrt. Formal complaillts filed wit/I tile Committee 011 which the members voted 110 actioll was warra"ted "''''Jber 1. i"formal complai"ts upo" wlJich "0 actio" was taken of n discipliuary uature 1Jlu"bered 4. Two war"illgs were issued.

Tllere follows a mOIlt/lly report of activities for the Committee 011 Professiollal Call duct for tile mOlltll of !allllan; 1990, ill accordallce witll mles of tile Arkallsas Supreme COllrt. Formal complaillts filed witll tile Committee Oil w1lich tire members voted 110 actioll was warrallted 'lUmber 1. /Ilformal complaillts upon which 110 actio" was takell of a discipliuanJ nature numbered U. Qlle warning was issued.

GREGORY FERGUSON One letter of caution was issued that became final in January to attorney Gregory Ferguson of Little Rock. Mr. Ferguson was issued a letter of caution for violation of Rule 1.16 as a result of a Per Curiam from the Arkansas Supreme Court. In 1987, Alfred Miller retained Mr. Ferguson to represent him in pursuing post-conviction relief. A petition for writ of habeas corpus was denied on July 7, 1988, and an untimely notice of appeal and designation of record was filed on August 8, 1988. The transcript \vas paid for by Mr. Miller and forwarded by the court reporter to the Circuit Clerk. The record was prepared but never lodged \vith the Supreme Court. Mr. Miller filed a 22

ARKANSAS

motion for belated appeal which was granted by the Arkansas Supreme Court's Per Curiam of July 17,1989. In Mr. Ferguson's response, he stated that Mr. Miller terminated his services following the denial of the habeas petition, but he took steps to protect Mr. Miller's interests by proceeding to file notice of appeal and ordering the transcript. Mr. Ferguson further stated that the Court and the reporter were notified that Mr. Miller would be obtaining different counse1. Mr. Ferguson's response does not reflect that he formally sought to be relieved as counsel pursuant to Criminal Procedure Rule 36.26, and the Supreme Court, in fact, found that he was not relieved as counsel for Mr. Miller.

EDWIN A. KEATON One letter of reprimand was issued in December to attorney Edwin A. Keaton of Camden. Mr. Keaton was issued a letter of reprimand for violation of Disciplinary Rules 6-101( )(1) and 6-10l(A)(3) of the Code of Professional Responsibility and Rule 1.1, 1.3 and 8.4 of the Model Rules. This \'\'3S after a hcaring on the complaint filed by Cassandra Rayfield. Ms. Rayfield stated that Mr. Keaton was hired to probate the estate of her grandfather, Dr. Robert M. Dunnings, who died in 1981. She said despite Mr. Keaton's assurances of prompt action, there were numerous delays and nothing was done to finalize the estate. Also, in 1982, her grandfather's widow died and Mr. Keaton was to handle her estate. In 1984, a letter was sent to the Committee on Professional Conduct and the Executive Secretary at that time, Mr. Taylor Roberts, sent Mr. Keaton a letter setting out Ms. Rayfield's concerns. Mr. Keaton responded to his clients about a month later and sent some papers to be executed. In late 1985, the personal representative, Ms. Reed, became unable to serve and Ms. Rayfield was subsequently appointed successor administratrix. On July 31, 1986, Ms. Rayfield, a nonresident, appointed the clerk of the court as agent for process. Ms. Rayfield stated that some legal papers sent her were poorly prepared and inaccurate and had to be corrected. She said that in 1987, Mr.

LAWYER

APRIL

1990

Keaton told her copies of certain deeds were needed in order to file a petition for division of the property. Ms. Rayfield stated the information was supplied, but no petition was filed. She said she made repeated telephone calls to Mr. Keaton during 1988 and received no responses. Ms. Rayfield filed another complaint with the Committee in early 19 9, and as of the date of her affidavit, June 13, 1989, still had received no communication from Mr. Keaton. On May 30, 1984, an Order Authorizing Final Distribution of Estate Assets in Robert Dunnings' estate was filed and, on March 6, 1987, an affidavit for Collection of Small Estate by Distributee was filed in the estate of Robert Dunnings' widow, Hudie Dunnings. From the testimony and evidence before the Committee at hearing, it appeared that neither estate had been settled and closed. Mr. Keaton received Ms. Rayfield's "ffidavit of complaint June 23, 1989, along with notice that he had 10 days in vvhich to respond. On July 4, 1989, Mr. Keaton requested and received an extension until July II, 1989. A letter was sent to Mr. Keaton on July 20, 1989, advising him that the matter was ready to submit to the Coml1"'1iltee for action and that no response had been received fron') him. Thereafter, on or about August 24, 1989, Mr. Keaton's Affidavit of response was forwarded to the Committee. In Mr. Keaton's written response, he stated that he did not feel that any incidents occurring prior to January I, 1989, were filed timely or properly before the Committee. He asserted in his testimony and written response that the probate proceedings became complicated due to the uncertainty of some estate assets, the personal representative's lack of responsiveness in providing requested information, the substantial demands on his time resulting from his campaign for election to public office and that Ms. Rayfield was not privy to, and therefore unaware of, communications and agreements made among Hudie Dunnings, Lillian Reed and Mr. Keaton concerning the progress and problems of the probate proceedings.

EDITOR'S NOTE:

Becallse of tlte

Se1lSltil'l' 1lallln' of tlJl! Disciplillnrv Acti01/S Rl'JlOrt, a /lew metlJod has bee;l

adopted at Tlte Arkallsas Lawyer. Tltis report is prillted ill direct copy of letters sellt to tlte SlIprellle COllrt Clerk, Leslie Steen, by tlJe Arkallsas Supreme COllrt COI/ll/lit/el' 0/1 Prof,'ssEo/wl C01lduct Office. Tlte letlers ore selll IIIOlllllly by tlte ExeCIIlipe Secrelary of Iltal office, JOllies A. Neal.


A. R. C. P. Rule Number 11 By John E. Moore, Civil Procedure Committee In 1986 the Arkansas Su preme Cou rt amended Rule 1'1 of the Arkansas Ru les of Civil Procedure to conform to Federal Rule 11 which was amended in 1983. 1 Experience in the Federal Courts under the old Rule 11 demonstrated that it

facts

tion of sanctions."3 A cou rt ma y impose

lega I

of the case."14 If a claim is without legal or factual merit, extensive research

alone will not save it from the penalty of sanctions. 1S Factors involved in

was not effective in

deterring frivolous and abusive pleading practices. 2 "The Amended Rule is intended to reduce the reluctance of the court to impose sanctions by emphasizing the responsibility of the attorney and reinforcing those obligations by the imposi-

and

resea rch which is "reasonable under the circumstances

determining what is

a

reasonable

inquiry include lime available for investigation,

whether the signer relied on the client for

information

regarding underlying facts, whether the pleading was based on a plausible view of the law or whether the signer depended on information provided by forwarding counselor another atlorney.16 Equitable considerations include available

CIVIL PROCEDURE

sanctions for violations of Rule 11 upon a party's motion or upon its own initiative. The Rule only requires "an appropriate sanction" which may include requiring the

offending attorney or the client to pay the reasonable attorney's fees which resulted from the violation of the Rule 4 Frivolous litigation and abuse of the litigation process led to the 1983 Amendment of Rule 11 of the Federal Rules of Civil ProcedureS The Rule applies to every paper filed in court and applies to pro se litigants as well as attorneys

assets, the lawyer's experience and whether the legal area involved required special expertise. 1?

A civil rights Plaintiff requested sanctions in response to the Defendant's Motion for Sanctions, suggesting that it was desirtned to intimidate a young and inexperienced

attorney. District Court Judge H. Franklin Waters said sanctions could not be awarded on that basis. "Counsel can adequately protect themselves from any 'intimidation'

and parties. 6 The certification requirement means that an attorney's or party's signature on any paper certifies that it is well grounded in its factual basis, its legal basis and is

factor by fulfilling their obligations under Rule 11 prior to filing any pleadings."19

filed for a legitimate purpose? Under the new Rule, a party's subjective good faith is

review the propriety or impropriety of a trial court's imposition of Rule 11 sanctions. In a landowner's trespass

irrelevant. The standard under the revised Rule is an

action against a pipeline owner who counterclaimed for malicious prosecution, the pipeline owner's Motion for Sanctions was denied. 20 The "trial judge was well within his discretion to rule that the municipal judgment favoring Ithe landowners I was significant and was reason enough to

objective one 8 Conduct challenged is to be judged by a standard of objective reasonableness 9 When the court finds a violation of Rule 11, sanctions are mandatory to Whether a violation of Rule 11 has occurred is a matter of law for the court to determine, and the determination

involves "matters of judgment and degree." 11 Courts reviewing a trial court's decision to impose or not impose sanctions will defer to the trial court's determination because of its familiarity with "the case, parties and counsel.. ..',12 "The imposition of sanctions is a serious

matter and should be approached with circumspection."13 A reasonable inquiry involves an exploration into the

The Arkansas Supreme Court has had few occasions to

show appellee's action was not frivolous nor subject to Rule 11 sanctions."21 The basis of the appeal was that the trial court improperly deferred to the municipal court judgment Ln his decision not to impose sanctions. Justices Holt, Dudley and ewbern dissented since prevailing at an

earlier stage of the litigation should not absolve a party of the possibility of sanctions. 22 The dissent felt it was a mistake to imply that once a trial court found a violation of


Rule 11 that it "mayor may not" impose sanctions 23 The Faulkner County Circuit Court had no authority pursuant to Rule 11 or Rule 37 to sanction an attorney for not being prepared for trial, so the Supreme Court reversed the award of $500 plus expenses and attorney fees to the opposing party but affirmed the imposition of sanctions for failune to have clients pnesent at depositions l'ursuant to Arkansas Rule of Clvtl Procedure 37 2 In his concurrence, justice Glaze noted that by its terms Rule e 11 was Limited topleadings and felt that the majority's discussion of Rule 11 was irrelevant and misleading. 25 Arkansas courts may look to federal decisions for guidance in construing the proper bounds of the amended Rule. District Court judge H. Franklin Waters imposed Rule 11 sanctions on a Plaintiff who sued her insurer for an alleged failure to pay wage loss benefits required by Arkansas' 0 Fault Insurance Law. 26 The Plaintiff admitted that the applicable policy provision was ambiguous yet included in her Complaint claims for bad faith, intentional infliction of emotional distress and punitive damages. oting the valid purpose of the "long overdue" nrncndcd Rule 11, Judge Waters said that "many

Plaintiffs allege bad faith, intentional infliction of emotional distress or punitive damage claims" to obtain

the necessary federal jurisdictional amount in controversy and warned that his court had in the past and would continue to impose sanctions when justified and

"A party seeking sanctions should give notice to the court and the offendinf party promptly upon discovering a basis for doing so."3 In response to a contention that a Motion for sanctions was not timely, the Eighth Circuit held that a Rule 11 motion is a collateral and independent claim which is not integral to the merits of the action and therefore the 10 day requirement of Rule 59(e) for amendments to final judgments was not applicable 35 A request for Rule 11 sanctions cannot be considered when raised for the first time on appeal. 36 A Rule 11 award of attorney's fees which does not fix the amount is not a final appealable Order37 The proper standard for appellate review of sanctions depends on the nature of the challenge. 38 If the facts relied upon are disputed then the clearly erroneous standard applies. If the legal finding of a Rule 11 violation is disputed, then the appellate late court reviews the lower court's lega I conclusion de IIOVO. If the challenge is to the appropriateness of the sanction, the abuse of discretion standard applies 39 Rule 11 sanctions have been upheld where the Defendants in an employment discrimination action exhibited a pretrial pattern of uncooperativeness and delay, and after depositions revealed clear liability, they "continued Ithel litigation, engendering vexatious and unreasonable delay... .',40 A statute of limitations defense was so clear and obvious that it was an abuse of process for

the Plaintiff to file suit after the Defendant's counsel

warranted 27 If the Plaintiff's attorney had read the leading Arkansas cases on the tort of bad faith, intentional

warned that the action was time barred, and Rule 11 sanctions were proper. 41 A sanction of attorney's fees

infliction of emotional distress and punitive damages, he

should be based on the amount of research and effort

could not in good faith have believed that the insurance carrier's actions justified such claims 28

reasonably required by the violation, and it tr13Y or may

In Glenn, sanctions were imposed because portions of

the Plaintiff's pleading were groundless. However, the Eighth Circuit held that Rule 11 sanctions were not required where several of the Plaintiff's claims for relief were meritless as a matter of law and an allegation of

conspiracy to defrilud was factually groundless. As a

whole, the pleading was leijally and factually substantial enough to reach a jury.2 Whether or not meritless elements of a Complaint will combine to render a pleading frivolous as a whole will be a matter for the court to determine. 30 In a suit against Southwestern Bell, employees alleged intentional race discrimination in not promoting them to

managerial positions. Although the Plaintiffs case against Southwestern Bell was \"leak when it was dismissed,

District Court judge George Howard could not say that the Complaint was initiated without a reasonable basis or that the suit was continued after it was apparent that the claim were groundless, so he denied Southwestern Bell's Motion for Attorney's Fees and Costs 31 A Motion for Rule 11 sanctions must be based on a pleading, motion or paper filed before the court. There was no jurisdiction pursuant to Rule 11 to sanction an

attorney for breach of a settlement agreement where the agreement was never filed with the court, reviewed by the

court or incorporated into the court's Order of Dismissa1. 32

The fact that a party filed a false bankruptcy petition prior to their subsequent action against the Defendants was not a

proper subject for Rule 11 sanctions since the fraudulent petition was not a pleading, motion or paper subnlitted as

part of the subsequent lawsuit 33

2 4

ARKANSAS

LAWYER

not equal the fee agreed upon 42 In a securities fraud suit, the district court imposed Rule 11 sanctions totaling $100,000, $50,000 to be paid by the Plaintiffs and $50,000 to be paid by their attorneys43 Discovery took four years 44 The Plaintiffs conducted their case in a manner that unnecessarily escalated costs. 45 Problems included constant battles over the scope of

discovery, a special master had to be appointed to preside over depositions and 19 months after the original Complaint was filed, the Plaintiffs attemted to amend it to include an unfounded RICO claim 4 The Defendants spent over $1 million defending the lawsuit, an amount which substantially exceeded the amount of investn1ent capital which was the subject of the suit.~7

Sanctions imposed on Plaintiffs after they took a voluntary dismissal were proper where the farmers' pro se

Complaints were virtually identical to earlier claims made and rejected by the revie\ving and lo\ver court, verbatim

Complaints had been filed in other courts and there was no connection at all between the Plaintiffs and one of the named Defendants 48 It \vas a proper Rule 11 sanction to dismiss prisoners'

civil rights suit with prejudice after they refused to comply with an Order to amend the first Complaint despite the numerous tirne extensions granted. 49 The approximately

90 page pro se Complaint alleged that prison officials were conspiring to harass the Plaintiffs for their jailhouse lawyer

activities. 50 Even if there was merit to the prisoners' allegations, the large amount of frivolous documents

submitted supported the lower court's dismissal with prejudice of their suit S1

APRIL

1990


Attorneys and trial courts have a responsibility to ask for and grant Rule 11 sanctions when appropriate. While every party is entitled to his day in court, an opposing party should not be required to bear the expense of opposing frivolous allegations in pleadings. In light of the certification requirements in the Amended Rule 11, allegations such as claims for the tort of bad faith,

19.1d. 20. Miles

intentional infliction of emotional distress and punitive damages should not be included in Complaints as a matter

(W.o. Ark. 1986). 27. Id. at 1452. 28. ld. at 154 (eilillg Ille applicable Arkallsas cases at p. 1449, Fooillole 1.J 29. BI/mll v. Firsl Naliollal Balik of Mimteapolis. 831 F.2d 788, 789 (8111 Cir. 1987).

of routine. Hopefully, Arkansas courts will utilize Rule 11 to discourage this all too common practice. FOOTNOTES 1./1/ Re Clzal1ges to the Arkallsas Rilles ofCil1il Procedure, 712

s. W.2d 296, 297 (1987).

sigllillg of Pleadillgs. Moliolls alld OIlier

Papers & Sa"ctiol1s. Every pleadillg, /1/oti01l aud other pnper of a party represented by nt! nttomey shall be sigl1ed by at Imst olle atlomey of record ill his ;/ldividun/name, whose address simI! be stated. A party who is /lot represented by all aftomey slmll sig" h;s pleadi1lg, mol;ol/ or other paper RIld state IIis address. E:ccept whel1

othenv;sc specifically provided by rule or statute, pleadi1lgs /Iced IIof be verified or accompa"ied by affidavit. Tile signature of a" attorney or party COlls/illiles a certificate by hi", that he has read tile pleadillg, molioll or olller paper; Ihat to the besl of his knowledge, illformalioll alld belir! fonl/ed after reasO/lOble illquiry, il is well grOi/lldrd ;'1 faci ami is wnrralllcd by existillg Inw or a goorl faitlI argumellt for tile e.tI(~lIsiOl1, 11I0dificatio/l, or reversal of exist;'lg law, alld thai it is 1101 i/lterposed for allY improper purpose, sllch as to harass or to calise Ilil/lecessary delay or lIeedless il1crease ill the cosl of liti8atioll. If a plendillg, molioll or oilla paper is /wt siglled, il shaff be strickel/ Ill/less it is siglled promptly after tlte 01l/issiol/ is cal/ed to the afl('tll iOIl of Ihe pleader or momllt. If a pleadi/lg, molioll or oilIer paper is sigl1ed ill violatiol/ of Ihis rule, the caliri, /fPOII /1/otioll or /fPOII its OWl/ illitiatitll!, shaff impose llpoll tile persoll who siglled it, a rt'prl!sl'lItt'd party or both all appropriate 5(1IIClioll, which may i/lelude all order to pay to tile o/Iln party or parties the aI/lOlIIlt of the rensOIlOble expt'llses il/cllrred becallse of tile fi/illS of IlIe plendillg, II/otiol/ or olher paper, illcJlldillg a reasonable atl01'llt'y's fee. 2. Id. 3. Id. nt 297-98. 4. Id. 5. W W. Schwarzer, "Sallctioll5 Ullder lite e'w Rille II-A Closer Look:路 1O~ F.RD. 181 (1984). 6. Id. at 18~. 7. Id. at 186. See also R. G. D""11111OIIrl, "Rille 11 Sallcliolls"路 ~8 MOIII. L. R. 119 (J987). 8. Addllollo I'. World Hockey Assoc., 824 F2d 617, 621 (8111 Cir. 1987) (cit ins RobilJsol/ II. Natiollal Cash Register Co., 808 F.2d 1119. 1127 (5111 Cir. 1987); Znldimr I'. Cily of Los Allgeles. 780 F.2d 823, 828 (9111 Cir. 1986)). 9. Hartmall P. Hallmark Cards, IIlC., 833 F.2d 117, 124 (8th Cir. 1987). (Rule 11 1101 Ilialaled just becal/5I! copy":r;:ht i,,!rillgemelll suit was weak aud did "01 prl'1.'flil 0/1 1I1l'ril:;). 10. Q'Col/1/t'lIzl. Champio/lll1lemaliol/al Complllly., 812 F.2d 393, 395 (8th Cir. 1987) (age discrimil/atioll claims were I",rred by the slatute of limilaliolls bllt wen' IlOt fril'OJcws because Plai"li!! had a 1I0llfrivoi0llsiegai argulIIt'IIt for al'oidillS the li1l/ilaliolls bar). 11. 812 F2d at 395. 12.ld. 13.ld. 1~. Wise I'. Pea Ridge scllool Dislricl #109,675 F sl/Pp. 1524. 1532 (W.o. Ark. 1987). 15. Id. (citillg Zaidi"",. l>. Los Allgeles. 780 F2d 823, 830 (9111

Ci,. 1986). 16. Id.

17. Id. at "/532-33 (citillg BrowlI l'. Federatioll of State Mt.'dical Board, 830 F2d 1429, 1439 (7tll Cir. 1987). 18. ld. nt 1533.

21. 763

l>.

sOl/lllem. 297 Ark. 274, 763

s. W.2d al 657.

22. Id. al 658. 23. Id. al 660. 24. Heltoll l>. FI/ller. 299 Ark. 341, 772 25.ld.

s. W.2d 656 (J989).

s. W.2d343, 344 (J989).

26. Clem, v. Farmers & Merchallts 1115. Co.. 649 F. SlIpp. 1447,1455

30. Jd. (eilillg O'Co""ell v. Champiolt I"tematio"al Com. 812 F.2d 393,395 (8111 Cir. 1987)). 3\. Bass v. sOl/lllweslem Bell Telepllolle, II/C., 817 F2d 44, 47 (8111 Cir. 1987)(decisioll affirmed). 32. Addl/o,lO I'. World Hockey Assoc., 824 F2d 617. 621 (8111 Cir.

1987). 33. Bllmll v. Firsl Na1iOl1a1 Balik of Milllleapolis, 831 F.2d 788, 790 (8111 Cir. 1987). 34. 104 FRD. 01197" 35. LI/po v. R. Rowlalld alld Co., 857 F2d 482. 485 (8111 Cir. 1988). 36. Wid",er l>. TOI/Iley. 297 Ark. 85, 759 s. W.2d 562, 563 (1988)

(jllslice Glau cOIICllrri"s). 37. Gales v. Celliral States Teamsters Pel/SiOlI FII/ld, 788 F.2d 7341 (8t1, Cir. 1986). 38.Kl/rkowski l>. Voleker, 819 F.2d201, 203, Fooillote 8 (8t1, (ir.

1987). 39.ld. 40. Eql/al Employ",el/t Opportill/ity CO"'11/issioJl v. Milavetz & Assoc., P.A., 863 F.2d 613, 614 (8111 Cir. 1988) (Oefelldallt al/d its

altomeys required to pay $5,500 ill aflomey's fees). 41. Aeilla Cns. & sl/r. Co. v. Femal/dez, 830 F.2d 952, 956 (8111 Cir.

1987). 42.ld. 43. Lllpo l>. R. Rowlal/d & Co., 857 F.2d 482 (8tll Cir. 1988). 44. Id. at 483. 45. Id. at 485 (sl/it cOlldl/cted frivolol/s/y OIld abl/sively). 46. Id. nt 486. 47.ld. 48. KI/rkowski v. Voleker, 819 F2d 201,203-204 (8111 (ir. 1987). 49. Americall Illmale Paralegal Assoc. II. CIi"e, 859 F.2d 59 (8th Cir. 1988). SO. Id. 0160. 51. Id. at 62.

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New Perspectives in Advocacy: A Videotape Program on the Art of Trial Practice Reviewed by Ron Carlson This new series of educational videotapes is introduced by Thomas Schrup of the United States Department of Justice. They offer trial guidance by distinguished Federal Judges Myron Bright, Henry Woods and John Kane, Jr. and are dedicated to the memory of Professor Irving Younger. A theme case, Marshal v. Humble Oil Company, is explained by Judge Bright at the outset. An explosion results in the bllrning death of workers, whose families sue over

alleged negligence by the defendant company. Demonstrations on each phase of the trial process are keyed to this case. Editorial graphics underline the points made at various segments of the program. The first of these segments announces that the lawyer nlUst "lay it one the line." At this juncture, a Federal District Judge digresses to explain and defend his foreclosure of lawyers from participation in the voir dire process. He then points out that when the lawyer initially addresses the jury, whether in voir dire (presumably in a court \vhich allows layer voir dire) or in an opening statement, the lawyer needs to expose the core points in his or her own case. Weak points that are laid on the line cease to remain incapacitating handicaps \,\'hen forthrightly addressed, Judge Bright add. Judge Woods demonstrates an opening statement on behalf of the families of the accident victims, and his remarks are delivered with an appropriate measure of passion, zeal, and reason. One excellent feature is the inclusion of an illustration, a visual aid, to help explain the plaintiffs theory, since inexperienced attorneys are sometimes uncertain respecting their right to utilize exhibits, charts or photographs during opening. Judge Bright's comment respecting the need to capture a theme in the opening statement is particularly pertinent. Judge Kane's view, that a defense attorney

2 6

ARKA

SAS

should virtually always provide opening remarks directly after those of the plaintiff, strikes this reviewer as sound advice. His message is that counsel cannot make the case seem important to the trier of fact without giving an opening. Is the opening statement the most important part of the lawsuit? Reasonable experts dis.-1gree, but one of the judges in this tape says it is. He urges:" ever waive an opening statement." Such ad vice was recommended for bench trinls as well as for jury trials. The concluding tape involves final arguments to the jury. Judge Woods describes in clear and commanding fashion how the gasoline vapors leaked into the room where the men were working. An explosion occurred. As counsel reviews one witness' testimony, an overlay appears on splitscreen of the described witness showing without voice a flashback of the person on the stand. This technology is effective. Judge Kane responds for the defense, reminding the jury that his opponent has a~ked the jury to avoid giving sympathy to the \vidows and children. The problem is that plaintiff's counsel has pointedly asked that such sympathy be avoided "at least 17 times." Judge Kane's explanation of the meaning of justice is memorable: Justice is "just us." By the reference he explains that justice is just the judge, just the attorney, just the witnesses, and most importantly, "just you" the jury. This is an occasion for "just us" in this courtroom to do the right thing. Ideas for inclusion in the viewing lawyer's own trial techniques are multiple. Judge Kane concludes for the defense: "Sympathy says 'help widows and orphans.' But justice says the cause of this terrible tragedy is not the fault of this defendant." "Close cases can be won by final argumcnt," concludes Judge Bright. Judge Kane adds that a bench trial argument can target the jurist's heart as well as his head.

LAWYER

APRIL

1990

Throughout these tapes, differences and commonalties in jury versus bench trials are drawn. In addition to the material on opening statements and closing arguments, there are other tapes in this four路part series. The middle portion of the program features demonstrations of expert and other witness cxaminations, followed by discussion and analysis. These are competently done, but I find then1 a little ponderous in contrast to the pace of tapes one and four (opening statement and closing argument). Judge Bright, who serves as the moderator for the discussions shown on the videotapes, is a creative and energetic jurist who teaches trial advocacy at S1. Louis University. The inquiries he poses are excellent, and the warmth of his pt:>rc:onillity shows through as he questions other participants. Rare is the videotape that fully captures the energy of the speakers and reproduces on film the samc level of excitement that was visible to those present at the live presentation. These tapes accomplish that formidable task as well as any that a legal audiencc is likely to see. These tapes are as valuable to members of the bar as they will be to law students. They can be used in law school advocacy classes or by FBA Chapters for luncheon meetings. The tapes are distributed by WTL Productions, 600 N. Jackson Street, Media, Pennsylvania, 19063. Other videotapes in the series focus upon appellate practice.

TIIl~ rt'PICU';" t1 rqmlll 111nmS" llle lIJlfrll'''V of lilt' Fedaal Blir Ncw.. alld JOIlY/lIll, III,1f RIllI Car/~tl", n J'rofc-.. ~tII" lit tile Ul1il'('r~".'1 (If

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AN ENVIRONMENTAL LAW OVERVIEW:

WHERE WE STAND By W. D. Tripper Cronchite III, General Counsel, Environmental Systems Company Thirty years ago, the standard procedure for a railroad to change a locomotive's oil included parking it on a trestle, and draining the used oil into a river. The standard industrial method for disposing of chemical process residue was to bury It in unlined pits, or dump it into a river. These standard Industrial waste disposal practices of a quarter-century ago would result in criminal charges today. Attitudes and ethics have changed, and so has the law. In the late sixties and early seventies, environmental law involved scattered cases funded in standard trespass. nuisance. contract and tort theories. ow. established seasoned partner level environmental attorneys in law firms all over the country oversee litigation. lobbying. and rule making efforts of a local, state, national and global level. There is a large framework of statutory, regulatory and judicial authority which continues to grow exponentially. The practicing environmental attorney is directly involved in significant public issues concerning the appropriate economic use, conservation and regeneration of OUT natural resources.

Environmental

law

questions often affect thousands of people, hundreds of millions of dollars, and wide pread newspaper and electronic med ia Environmental issues

coverage. are often

extremely complex matters with diverse parties and agendas. Like tax law. environmental law has a place for tria I la wyers, agency la wyers, technical lawyers, rich la"vyers, poor lawyers, corporate lawyers, criminal lawyers and zealots. The resolution of environmental issues often requires the successful negotiation of a bewildering procedural

labyrinth. Various federal, state and local governmental agencies are often involved. Agency decisions are normally answerable to a state or federal court. In any given environmental issue. one of the first

things a practitioner must understand is the decisional structure. Which agencies might be involved? What are their respective roles? What is the procedure before each agency? Many environmental enforcement programs

have their own set cf evidentiary and procedural rules and regulations. Several of the major federa I environmental acts, e.g., the Clean Air Act,! the Clean Water Act 2, and the Resource Conservation and Recovery

Act (RCRA)3 - provide for delegating many of the regulatory programs authorized by those acts to qualifying state agencies. Many local governments have become sophisticated in the degree f involvement they can assert in issues which may be governed by federal law. Don't underestimate the role of local and state agencies in the environmental arena. The widespread notion that federal law has preempted state and local environmental law should be carefully analyzed in the particular case. Closely related to the need to understand the governmental agency structure pertaining to a specific problem is the need to understand how and hen the judicial system, either by original action or by appeal from an agency decision, can become involved. The opportunity may exist to pick between state or federal forums or in some cases, to pursue litigation in both. Because major environmental issues may involve multiple agency decision, each with their own judicial appeal path. Great care must be exercised in developing an appro-priate


record

to

maximize

strategic

opportunities. In this regard, one must consider when to present

evidence, what evidence to produce and what constitutes admissible evidence in the

p~rticular

forum. In

many environmental decision processes. There may be only one opportunity to produce evidence and that may be before a state agency. All other procedures in the case. including judicial review, will often be confined to an examination of the record. Do not presume that there will always be an additional opportunity to take your case. Most environmental

issues

purport to be "scientific" questions on which governmental agencies are supposed to weigh the relative data and make objective decisions. Such a process creates a need for testimony from engineers, geologists, chemists. and other technical experts. Skilled environmental counsel must be able to communicate with these experts effectively ad to devise legal strategies around their testimony. Of at least equal significance to the scientific testimony In any environmental

areas

development and usage

is

the

of the

"political" or "public relations"

aspects of a controversy. While most agency decisions theoretically turn on scientific evidence and objective standards, political pressures brought to bear on decisions makers can impact the timing and contents of

decision. Management of the public relations factor is uneldlly at best, dangerous, and often decisive. Unfortunately. the issues litigated in the newspapers are often resolved based on emotion rather than deliberate, rational scientific judgment. It is important not to unduly aggravate decision makers by attacks on their competency. fairness, or integrity, but at the same time, communicate to them the political "costs" of deciding against your client. A large number of the most competent experts, in particular environmental

areas, are long time employees of state and federal agencies. Avoiding Iiention of the expert staff employee while pressing an agency for a decision involves careful nd well crafted communication and sound case and client management. One

should carefully select 30

ARKA

SAS

issues,

evidence and public relations strategies. The environmental lawyer becomes conversant with the scientific issues in question and should be able to translate the legal considerations to experts and clients so they understand the impact of their testimony or actions on the decision environmental

counsel understands the various federal and state laws and regulations that bear on the decision and how they relate to one another and understands the procedural aspects of the decision making process. Twenty years ago, an environmental lawyer might have been a long-haired radical who had more righteous indignation than practical legal skills and competence. That is no longer the case. Many large law firms around the country have whole departments devoted tu an environ-

mental practice. The practice of environmental law is big business. I recently read a two word article on how to expand your law practice which read: "Do CERCLA". Greg Yeatman's article on "Superfund - A Few Basic Concerns" explains why. CERCLA is the Comprehensive Environmental Response Compensation, and Liability Act 4. Also known as Superfund. This law destroys concepts of foreseeability and

the Chief Counsel for the Arkansas Department of Pollution Control and Ecology, so he deals with these issues on a regular basis. Most folks in this day and age realize that their trash does not disappear after the garbage truck picks it up. Most folks realize it needs to go somewhere. But folks everywhere

are

certain

that

somewhere is "Not In My Back Yard". here is conflict in those ideas nd where there is conflict, there is legal work. As any duck hunter can tell you, we do not have nearly as much acreage wetlands as we did even twenty or thirty years ago. The system for protecting the remaining wetlands is outlined in Paul Means' article on wetlands issues. Paul is a

former Director of the Arkansas Department of Pollution Control and Ecology and provides a thoughtful review of the process. Environmental law is an excelJent

arena for the legal Practitioner who thrives on complex, difficult, emotionally charged important cases. It demands preparation and attention. The rewards include not only professional satisfaction. but the satisfaction of participating meaning-

fully in decisions that will shape our environment for everyone's future.

proximate cause dear to tort lawyers.

If your client ever sent waste to a

dump that ends up being declared a Superfund site, the client is on the hook, jointly and severally, for the entire cost of the entire cleanup. Usually, a steering committee of Fortune 500 companies forms to manage the problem. Often, these cases involve hundreds of businesses attempting to (i) work together t minimize the overall cleanup costs; and (ij) work against each other to make sure the other guy pays most f the money. Effective representation

Mr. CnmklH!t' i~ tilt' Gt'/lt'wl COIm~t'1 ftlr ÂŁ',l'lnlllt1ll'lItal Sy~ft'm~ Coml1allY (NYSE:ESC). 1111 Arkall~a~-lm:'t'd IIfl:.ardoll~ ({'(J~te 11/(/IIt'l'IltWlI colI/pallY. Ill' is a l'asl ellforCt'IIH'/It Ilffomci/ allti rÂŁ'g;ol/a/ Iiti8aficHl

fur Ri'X;tH' VI of Ihe Em';nm11lt'lltal Pnltct'ticm Agt'/lCY ;11 Da1Ja~, TeJ:as. allfl 1:' tIJt' (IIrri",t Cllfllrn,a" of tht' Ertl ' ;rolllllt'/llal LaU' (0111 11111 t('t' of till' Arkall~as Bar AssociatiolJ. The l';eU'~ t'xp,es~'d III thi:- ;~~lIt' of the ArknllSls WWyf" are thtN' of the ;"l1i['llIlIal allOw,:, ()Illy_ rtlordi/lfltor

FOOTNOTES

requires litigation and negotiation

skills along with some scientific understanding and a working knowledge of the regulatory frttme

work. These cases inevitably involve multi-million dollars remedies so the skilled environmental attorney can

1 42 U.s.C.s57401-7626; 40 CER. Parts 5087. 2 33 U.s.C 551251-138: 33 CER. Parts 320330.335-338: 40 CER. Parts 104-140.230233.401-41.

save her client significant money.

The question of where municipalities, both in and outside of Arkansas, will place their solid waste is reviewed in Steve Weaver's article on solid waste management. Steve is

LAWYER

APR I L

1 9 9 0

3 42 U.s.C 556901-6992: 40 CER. Parts 240-281. 4 42 U.s.C 55601-65: 40 CER. ParIs 300-

311.


The groundswell of concern over environmental matters in a variety of business transactions and legal actions can largely trace its origins to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA - better known as Superfund)l The Superfund Amendments and Reauthorization Act of 1986 (SARA) made major changes to the original law giving it a greater degree of clarity and a distinctly sharper bite 2 Unlike most federal environmental laws, Superfund does not focus on compliance with a regulatory system that governs current activities but rather addresses site contamination created by past activities 3 It creates the possibility of disproportionate liability for activities that may have been legally and technically correct at the time. In recent months, EPA has implemented an enforcement first strategy which is a more aggressive approach to the cleanup of hazardous waste siles 4 This increasingly aggressive approach to imposillg CERCLA liability on those responsible for the disposal of hazardous wastes may be expected to continue for the near future. The discussions below are intended to provide a survey of the framework of CERCLA and the circumstances in which the attorney with a general civil practice should be aware of the existence of potential superfund liability. THE SCOPE AND ATURE OF CERCLA LIABILITY CERCLA imposes liability on a distinct group of resr..onsible parties associated with a facility for the release or threatened release of hazardous substances. ~ Those categories of potentially responsible parties (PRPs) are:

BY GREG YEATMAN, ATTORNEY AT LAW Chisenhall, Nestrud & Julian, P. A.


"Current owners or operators;

'Owners or operators of the facility at the time of disposal or release of hazardous substances;

'Those who arranged for treatment, disposal or transportation of hazardous substances; โ€ข Those who generated the hazardous substances. The most farreaching category of PRPs is that for generators of hazardous substances. A generator may be held liable under CERCLA ยง 107(a)(3) if it can be proven that: 0) The generator's hazardous substances were, at some point in the past,

shipped to a facility; (2) The generator's hazardous substances or hazardous substances like those of the generator were present at the site; (3) There was a release or threatened release of the generator's or any hazardous

substance at the site; and (4) The release or threatened release causes the incurrence of response costs. Further, it is unnecessary to how that any particular responsible party actually caused or contributed to the release. 6

It is now well settled that CERCLA imposes strict, joint and several liability and that a federal common law is to be developed by the courts in regard to a uniform approach for imposition of CERCLA liability.? Such strict joint and several liability means that each and every PRP might be held individually liable for the entire cost of the site c1eanup.8 The Environmental Protection Agency (EPA) routinely undertakes CERCLA enforcement action against a select number of the PRPs. It is then up to those defendants to discover other PRPs and sue them for contribution in a separate action. THE NATURE OF SUPERFUND ACTIONS CERCLA liability may be sought to be imposed by either the government (EPA) or by other potentially responsible parties. Under CERCLA ยง 104(a)(I), EPA may undertake to remove hazardous substances from a facility and provide for long-term remedial action. 9 Removal actions are generally deemed to be a short-term solution designed to eliminate any immediate threat to human health, while remedial actions are the long-term solution to the contamination. In order to recover costs of such actions, the government must be able to document that all costs incurred were consistent with the ational Contingency Plan. 10 If EPA determines that the response action will be done properly by the owner or operator of the facility or by any other responsible party, it may enter into a settlement with such rarty to conduct the necessary activities in accordance with CERCLA ยง 122. 1 In addition, CERCLA ยง 106 provides the authority to seek injunctive relief as may be necessary to abate an imminent and substantial endangerment to the public health or the environment. 12 Funds expended in any response action by the government which are not recovered shall constitute a lien in favor of the United States and all real property and related rights affected by a response action. 13 Should a potentially responsible party fail, without sufficient cause, to properly provide removal or remedial action upon administrative order, it may be subject to treble cost recovery. 14 Private party actions are in the nature of contribution claims against other PRPs who have failed to contribute towards the cost of remediation. The 1986 amendment explicitly provided that any person may seek contribution from any other person who is liable or potentially liable under ยง 107(a).15 The court may allocate response costs amount the liable parties

SUPERFUNDS SUPERFUNDS SUPERFUNDS SUPERFUNDS SUPERFUNDS SUPERFUNDS SUPERFUNDS SUPERFUNDS 32

ARKA

SAS

LAWYER

APR I L

199 0


using such equitable factors as the court determines are appropriate, though the most common methods of allocating liability are based on the volume of waste shipped by a PRP to the facility and/or the relative toxicity of such waste.16 It is important to note though that under CERCLA ยง 113(f)(2) any person who has resolved its liability to the government in an administrative

or judicial settlement is protected from claims for contribution regarding matters addressed in that settlement. 17 THE IMPACT OF SUPERFUND ON BUSINESS TRANSACTIONS The groping tentacles of CERCLA's liability provisions must be understood and foreseen in a variety of modern business transactions. The

magnitude of CERCLA liability may become vastly disproportionate to the value of the real property or the business that it might unexpectedly arise from. Standard contractual mechanisms may serve to help minimize and control such potential liabilities. These include various warranties,

indemnifications, escrow funds, etc. However, it should always be remembered that such contractual rights are only as solid and dependable as the rock they are built on. The indemnification of the buyer of real property by the seller serves as a cause of action between those two parties, though will not serve as a defense to government cost recovery actions or CERCLA actions asserted by other PRPs. A statutory defense nicknamed the "innocent landowner defense" exists under CERCLA ยง 107(b)(3) to landowners who claim to have purchased contaminated property without knowledge of the contamination if it may be shown that such contamination

was caused solely by an act of God, an act of war, or an act or omission of a third party other than one whose act or omission occurs in connection with a contractual relationship. There are three elements contained in this section

necessary to the defense against contamination which was caused solely by a third party: There must be no direct or indirect relationship, contractual or otherwise, between the landowner, his defendant and a third party; (2) The landowner must have exercised due care regarding hazardous substances upon their discovery; and (3) The landowner must show that he took precautions against the acts or

(l)

omissions of the third party.18

However, as a practical matter it is virtually impossible to meet this burden of establishing such an innocent landowner defense, and it should not be relied on. A second provision, CERCLA ยง 122(g)(I)(B), allows the owner to use his innocence as a mitigating circumstance to minimize his liabili ty19 The propitious use of an environmental assessment conducted

by a qualified environmental professional may provide some basis for the

purchaser of real property to assert such innocence. In addition, the findings of such an environmental assessment may well serve to structure the

transaction and help determine the fair market value of the real property. Such investigations may serve to analyze the overall environmental compliance of an ongoing business concern which. is the subject of a stock or asset sale.

In sale of business transactions, the potential continuance of CERCLA liability Inust be addressed even if the transaction is structured as a sale of assets. Under traditional corporate law doctrines, a successor corporation is

generally not liable unless: (a) The purchasing corporation expressly or implies that it agrees to assume such obligations; (b) The transaction amounts to a de facto consolidation or merger;

SUPERFUNDS SUPERFUNDS SUPERFUNDS SUPERFUNDS SUPERFUNDS SUPERFUNDS SUPERFUNDS SUPERFUNDS


(c) The purchasing corporation is merely a continuation of the selling corporation; or (d) Transaction was fraudulently entered into in order to escape liability.20

However, at least one court has modified this traditional corporate approach to successor liability where the defendant and its predecessor corporation had allegedly discharged hazardous wastes 21 A New Jersey court found that a successor corporation may be held liable for the acts of the predecessor corporation if the new corporation continues substantially the same business operations as the selling corporation 22 The continuity of business operation approach has also been used in a case involving violations of the Federal Insecticide Fungicide and Rodenticide Act 23 However, there is no case law which applies this continuity of business approach to CERCLA matters, but it is important to be made aware of the threat of such a possibility. Commercial lenders have been acutely aware of the expanding scope of CERCLA liability since the 1986 decision of U.S. v. Marylalld Balik alld Tmst.24 The term owner and operator of a facility is defined as any person owning or operating a facility, but the term does not include a person who, without participating in the management of a facility, holds indicia of ownership pr primarily to protect his security interest. 25 The line of decisions which have applied this definition to lenders has failed to set forth any bright line rule that may be safely relied on 26 One commentator has offered the following guidelines for secured creditors to avoid or minimize CERCLA liability: 1. A creditor should not enter into a loan where the principal security is industrial or commercial property without having the benefit of an environmental audit of the property; 2. The secured party should absolutely avoid involvement in the borrower's operations, regardless of whether the loan appears to be turning sour; 3. Upon default, under no circumstances should the creditor attempt to operate the property as a going business. 4. If foreclosure is absolutely necessary, first obtain an environmental assessment of the property if an assessment has not already been done. S. Should it be determined that hazardous substances do exist on the property, an economic decision must be made as to whether the property is worth foreclosing on. 27

However, a cardinal rule of dealing with issues of envi";lIlmental liability is that they are very site specific and the proper approach must be determined on a case-by-case basis. STATE SUPERFUND LAWS A number of states, including Arkansas, have passed state versions of CERCLA. The Arkansas Remedial Action Trust Fund Act (RATFA) and the Arkansas Emergency Response Fund Act (ERFA) have combined to establish statutory authority in Arkansas analogous to CERCLA28 ERFA is aimed primarily at proViding authority to the state to respond to emergency situations created by releases of hazardous substances. In contrast, RATFA provides the state with authority and some funding to implement long-term cleanups of hazardous substance sites and impose liability on the responsible parties. A 1989 amendment to RATFA specifically provided the right to contribution among responsible parties 29 In addition, this legislation stated an intent to encourage privately funded remedial action. 30 Another 1989 amendment to RATFA sought to limit the scope of RAT FA liability as imposed on secured creditors 31 Act 260 of 1989 provided that a person shall not be deemed to have contributed to a release of hazardous SUPERFUNDS SUI'ERFUNDS SUI'ERFUNDS SUI'ERFUNDS SUI'ERFUNDS SUI'ERFUNDS SUI'ERFUNDS SUI'ERFUNDS

34

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substances merely because he provided loans or foreclosed on a property. While removing the specter of a lender's liability in state courts for environmental contamination, these provisions should not be viewed as a panacea for bankers' concerns in this area. In order to assert the liability of the owner by foreclosure, the state, EPA or other PRP need only assert its cause of action under CERCLA in the federal courts.

CONCLUSION The concerns created by the federal and state superfund statutes have assumed a permanent role in the lives of attorneys, landowners, small businesses, lenders and real estate professionals. These issues and potential liabilities must be learned to be dealt with in the ordinary course of business.

FOOTNOTES 1. 42 U.S.C § 9601 et seq. 2. Superfulld Ameudmellts alld Reautllorizatioll Act of 1986, PL. 99499 (SARA) October 17,1986. 3. Holmes, Superfulld Halldbook, (ENSR Corp., 1989). 4. Environment Reporter, Vol. 20, o. 22, p. 943 (September 29,1989). 5. CERCLA § 107(0),42 USC § 9607(0). 6. Ullited States v. SOUtil Carolilla Recyclillg alld Disposal, IIlc.. 653 ESupp. 984, 992; U.S. v. MOllolo, 695 ESupp. 615 (D.N.H. 1988). 7. See e.g. O'Neil v. Piccilo, 883 E2d 176 (1st Cir. 1989). 8. Superflllld Halldbook, p. 22. 9. 42 USC § 9604(a){/). 10." ational Oil and Hazardous Substances Pollution Contingency Plan," 40 CFR Part 300. The ational Contingency Plan (" CP") sets forth specific procedures for the assessment of and documentation of federal removal actions and remedial actions. 11. CERCLA

§ 122, 42 U.S.CA. § 9622. 12. CERCLA § 106(0), 42 U.S.CA. § 9696(0). 13. CERCLA § 107(g), 42 U.s.C § 9607(g). "l4. CERCLA § 107(c)(3), 42 U.s.C § 9607(c)(3). Also sec Amilloil, luc. v. U.S., 646 F.Supp. 294, 299 (CD.Calif. 1986). 15. CERCLA § 1l3(f), 42 U.s.C § 9613. 16. Sec e.e. Allied Corp. v. Acme Solvellts Reclaimillg , IlIc., 691 ESupp. 1100 (N.D.I\I. 1988). 17. CERCLA § 113(0(2), 42 U.s.C § 9613(0(2).

18. Mayes, "The Blessed State of Innocence: The Innocent Landowner Defense under Superfund", Ellvirollmellt Re Reporter. p. 809, (September 8, 1989).

19. Id. 20. See Price, "Liability of Corporate Shareholders alld Successor Corporatiolls Under

CERCLA," EPA Internal Memorandum, Oune 13, 1984). 21. New Jersey TrailS TralJsportatioll Department v. PCS Resources, JIlC., 175 .J.Super. 447,419 A.2d 1151 (1980). 22. Id. 23. Oller II, Illc. v. Ullited States EPA, 597 E2d 184,186 (9th Cir. 1979). 24. U.s. v. Marylalld Bollkalld Trust Co., 632 ESupp. 573 (D.Md. 1986). 25. CERCLA § 101.20(0), 42 U.s.C § 9601.20(a). 26. Sec U.S. v. Mirabile, No. 84-2280, slip 01'. (E.D.Pa. Sept. 4, 1985); Ullitcd States v. Mary/mId Bank mId Trust Co., illfra.; Ta"8'ewood East Homeowllers v. Charles Thomas, lI1C., et al. 849 F.2d 765 (5th Cir. 1988); Ullited States v. Fleet Fartors Corp., et 01., No. CV 687070 (SD.Ga. 1988)(slip 01'.). 27. Mayes, "Sew red Creditors ill Superfulld: Avoidin8 the Liability Net," E,lVirollme"t Reporter, p. 609, 614 Ouly 28, 1989). 28. See Ark. Code AIIII. § 8-7-501 et Sf. (RATFA); Ark. Code AIIII. § 8-7-401 et Sf. (ERFA). 29. Act 441 of 1989, March 9, 1989 (amelldillg Ark. Code AIIII. § 8-7501 ef q.) 30. Ark. Code AII/I. § 8-7-502 (as amellded). 31. Act 260 of 1989, March 1,1989 (amelldillg Ark. Code AIIII. § 8-7508). SUPERFUNDS SUP[RFUNDS SU 1'[ RFU N DS SUI'[RFUNDS SUP[RFUNDS SUJ'[RFUNDS SUP[RFUNDS SUP[RFUNDS


SOLID WASTE STRATEGIES FOR THE

NINETIES

First, some highlights from the Eighties: • A barge loaded with garbage from the

ortheast captures the

nation's attention during its international journey in search of a dump site. After being rejected by Louisiana and Missis ippi, the company responsible for a train loaded with sewage sludge from Baltimore, Maryland, announces its next de tination is Arkansas. • Public outcry soars during a legislative session regarding plans to ship out-of-state waste into landfills in Saline and Chicot counties. Sixteen different resolutions and bills are introduced during the session addressing solid waste issues, most restricting the influx of out-of-state solid waste into Arkansas. • The Arkansas Department on Pollution Control and Ecology [ADPC&E] estimates that the state has approximately 6.4 years of landfill capacity left to accommodate municipal and county solid

By Steve A. Weaver

Chief Legal Counsel Arkansas Department of Pollution Control & Ecology

waste needs. The nine largest landfills in the state account for more than half of the state's landfill capacity and have less than five years of projected life. It takes approximately two or more years to design, permit and constnlct a solid waste landfill. See illustratiolll. • As landfill capacity dwindles, the NIMBY (" ot In My Back Yard") and NIMEY (" ot In My Election Year") syndromes escalate. Every public notice for a proposed landfill site draws significant public and political protest. • As public opposition to the siting of permitted landfills escalates, instances of promiscuous illegal dumping increase because of the cost or lack of land filling facilities. • The federal government, through the Environmental Protection Agency [EPA] proposes new operating standards for landfills which will put 75 percent of landfills accepting municipal solid waste in the nation out of business. This combination of issues and their implications illustrate the state of solid waste management and regulation in Arkansas as we enter the 1990's. The problems are both visceral and real; no other area of environmental concern is so consistently laden with emotional and technical controversy. Solid waste issues may become the "hot" environmental crisis of the next decade, both nationwide and in Arkansas. Fortunately, the state is taking a progressive, rather than reactionary, stance toward the brewing controversies.

36

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solid waste: a worthless or useless by-product that is in solid form, not gaseous.


EWFEDERAL REQUIREME TS The Resource Conservation and Recovery Act of 1976, 42 U.s.C 6901, (RCRA/, with the implementing regulations, is already one of the major templates for environmental regulation in the nation; the generation, transportation and treatment of hazardous wastes are ARKANSAS strictly regulated pursuant to the terms of â&#x20AC;˘ ......1..1. 1O..,m lou'l.., this Act. The original version of RCRA also addressed nonhazardous solid waste Illustratioll 1 issues, but only in the most cursory of terms. In general, the federal mandate began as simply assisting states and local governments on appropriate technical criteria for operating solid waste management systems. In 1984, however, Congress directed the EPA to promulgate regulations governing the operation of solid waste landfills, the most relied upon method of municipal solid waste disposal. After hearing from the diverse interests involved in solid waste management and deliberating upon several regulatory approaches, EPA published its proposed regulations in August of 1988. 30 Fed. Reg. 33313 (No. 168, Allgllst 30, 1988). Even though the EPA proposals are not yet effective, the implications of the new landfill standards have already shaken the regulatory and regulated communities. In effect, EPA's strategy sets operational standards which must be met by all landfills receiving municipal solid waste. The technical details of the regulatory requirements are too extensivp for this article; suffice it to say here that the new federal regulations govern the gamut of landfill management, covering location

standards, facility design and operation, closure and post-closure care, financial assurance requirements, groundwater monitoring and corrective action

standards. The impact of the new federal regulations will be most palpable as they affect landfill design standards. In summary, the new landfills will be required to have natural or synthetic liners, methane gas control and monitoring, leachate collection and removal, and ground water monitoring. See IIIlIstratioll 2. The new regulations will also require financial assurance, generally through bonding mechanisms, to guarantee proper closure and post-closure care of

landfills, and will require third-party liability insurance. These requirements are not new to Arkansas landfill operators; Arkansas law already has practically identical requirements. A.CA. 8-6-213 alld216. EPA apparently agonized over whether financial assurance requirements should be applied to governmental entities. The EPA proposal in its draft regulatiuns exempts states from financial assurance requirements but does

impose them upon municipalities, counties and other subdivisions of the state. In Arkansas, financial assurance by governmental entities is achieved through the execution of a contract of obligation between the local government and the Department, which binds the governmental entity to perform the actions required, upon the threat of losing state matching funds. A.CA. Sec.8-6-213(c). Under the proposed regulations, existing landfills would not have to retrofit liners or leachate collection systems. The portions of landfills which remain operating after the effective date of the regulations would, however, have to abide by all new regulatory requirements, including 30 years of post-closure 38

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EXAMPLE OF A MUNICIPAL LANDFILL UNDER PROPOSED CRITERIA Properly Boundary Melhane ,I Monitoring

Final . COYer "-..

Melhane Gas ConUol ........

Ground-waler

Monitoring

\

leachale CollecUon and Remov8' Syslem (as needed)

care. These provisions mean such significant added costs to small municipal landfills that most are attempting to close before the new regulations become effective. The EPA's Subtitle D regulations announce a new regulatory regimen for solid waste management across the nation. In essence, EPA proposes a major public works project compelled by federal law. This ambitious and potentially onerous project has been launched at the federal level without a commitment of federal funds to implement the new requirements at the local level or administer the new regulations at the state level. In essence, the EPA came down from the mountain with the tablets, then left the states to figure out how this totally different approach to solid waste management would be implemented. As of the date of this writing, the promulgation date of these new regulations is still pending. The latest information received by the Department indicates that the final promulgation date may be sometime in May of this year. Practitioners involved in these issues should monitor the federal notices for the EPA's final decision. One of the most uncertain issues involves how much time existing facilities would have to reach compliance after the promulgation date; environmentalists are pushing for six months after the effective date, operators insist on as much as 18 months. Whatever EPA's final decisions on the substance and timing of its proposed new regulations, landfill operators, local governments and individual waste generators should be prepared for a significant shock regarding solid waste management requirements and costs.

INTERSTATE COMMERCE ISSUES The solid waste problems confronting the states as a result of the new federal regulations are compounded by legal constraints upon states' ability to control the volume of the waste stream for which they are responsible. The United States Supreme Court has determined that garbage is "commerce;" thus, state regulatory authority may not discriminate against waste received from out-oEstate. In Pililadelpilia v. New Jersey, 437 U.s. 617 (J978), the Supreme Court declared a ew Jersey ban upon the import of out-of-state solid waste unconstitutional. In this case, New Jersey recited environmental and public health concerns to justify prohibitions against disposing out-of-state waste in New Jersey landfills. Despite the fact that New Jersey had real and demonstrable concerns regarding solid waste disposal capacity in the state, the Supreme Court concluded that the ban imposed was unconstitutional per se. The fatal flaw of the New Jersey law was that it explicitly imposed the full burden of the state's landfill capacity crises on out-of-state competitors. The Supreme Court, through dicta, did leave room for some regulation by


noting that states could permissibly regulate solid waste in such a way that only had an incidental effect on interstate commerce, but such regulation had to apply to all waste being deposited in landfills, not just out-of-state waste. Jd. at 626. This comment is based upon previously established commerce clause law which applies a balancing test to judge the incidental effects that exertions of legitimate state police power has upon interstate commerce. See e.g. Pike v. 8mce Chllrch, 11lC., 397 U.S. 137 (1970). Under the Pike test, the judicial deference generally granted to the states' police power applies, and statutes incidentally restricting commerce are upheld unless the burden on commerce is clearly excessive in light of the local benefits. For instance, the Eighth Circuit has acknowledged that the need for solid waste planning justifies state restraints on waste streams, even if an incidental impact on interstate commerce results. Cel/tml lawn Refllse Systellls v. Des Moilles Metro Solid Waste, 715 F.2d 419 (8th Cir. 1983). Another, and more certain, exception to the holding in Philadelphia v. New Jersey is identified as the "market participant" exception, based upon the state's or locality's status as an owner/operator, rather than a regulator. If the government owns the landfill, then it is clearly established that it may do business with anyone it chooses, without regard to interstate commerce discrimination constraints.

While recent Supreme Court cases indicate more deference to state and local New Jersey holding may be forthcoming from Congress. The RCRA reauthorization bill, introduced by Representative Thomas Luken of Ohio, allows states to ban the import of out-oF-state garbage if certain capacity assurance requirements are met. H.R. 1457. Notably, Ohio is one of the states dealing with a huge and

environmental regulation, definitive relief from the Plriladl.'1pllia v.

controversial influx of out-of-state waste. Whether this provision can withstand

attack by powerful Northeastern waste exporting states remains to be seen. At this time, even though both statutory and case law are in a state of flux, the following guidance should be followed regarding restrictions upon out-ofstate solid waste coming into Arkansas.

Any direct restriction explicitly

restricting the influx of out-of-state waste will likely be deemed unconstitutional under Philadelphia v. New Jersey and its progeny. If the landfill is a government owned and operated faCility, it may choose with impunity to not accept out-ofstate waste. Otherwise, any restriction on the in1port of out-of-state \\'aste must

be based upon regulations which apply to all wastes, not just those originating from another state.

THE ARKANSAS APPROACH: REGIONALIZATION AND RECYCLING Legislation adopted in the 1989 regular session demonstrates Arkansas taking a proactive and progressive stance regarding the new federal regulations

and the brewing solid waste crises.

Act 870 of 1989 The

new

federal

regulations, and the concomitant increased

costs of land filling, signa I the end of small municipal or county

landfills in Arkansas. It is doubtful that even the most populous counties in the state

will be able to meet the new regulatory requirements in a cost effective

manner. Thus, Act 870 of 1989 A.CA. Sectiolls 8-6-701 et seq., attempts to begin a trend toward regionalization as a

Illustration 3 40

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strategy for meeting


solid waste management needs. Act 870 divides the state into eight Regional Solid Waste Planning Districts. The geographic boundaries of the districts are the same as the planning and development districts established by A.CA. Section 14-166-202. See illllsirnlioll3

for a //lap of Ihe regional dislricls. Within each district, a Regional Solid Waste Planning Board is created. The Board is comprised of the county judge of each county in the region, the mayor of the largest city in each county, an owner or operator of a private-sector landfill and three members of the general public. The most immediate task of the boards is gathering information. By January 31, 1991, each board must submit to ADPC&E a Regional Needs Assessment (RNA) which, at a minimum, must include: (1) Calculations of the amount of solid waste generated in the region and the remaining disposal capacity available in the district; (2) An evaluation of the adequacy of all solid waste services in the region; and (3) An evaluation of the economic, environmental and other relevant concerns which would be impacted by receipt of solid waste from outside the district. Once the RNAs are in place, each board turns to another role. Before submitting an application for a solid waste landfill permit to ADPC&E, the applicant must obtain a Certificate of Need from the regional board. In its deliberations, the boards must determine whether the facility at its proposed location will serve the assessed needs of the region and not adversely affect certain enumerated public concerns. If a Certificate of Need is denied, Act 870 provides for an appeal to the Director of ADPC&E. In addition to procedures designed to facilitate regional cooperation, Act 870 contains other substantive requirements. For instance, a regional district is prohibited from accepting waste from outside its boundaries once projected capacity reaches less than five years. Once this bottom line of capacity is reached, the board is required to issue requests for proposals to increase the district landfill capacity. A ceiling on capacity is also imposed; Act 870 provides that in no event shall a district's capacity exceed 30 years. Finally, to allow the boards time to assess regional needs and preserve remaining capacity, Act 870 prohibits landfills in each district from receiving waste from outside the district until January 31,1991. If an existing landfill is already serving areas outside of a district, it may not increase the influx of waste from outside the district by more than 20 percent. Otherwise, the moratorium prohibits the inter-district transfer of waste and even prohibits the Department from processing any permit for a facility which proposes to accept solid waste from outside of its regional district. The regional boards have been formed and are making progress in preparing the R As. The General Assembly intended that this process would foster a realization that new economies of scale must be itnplemented to meet the solid waste needs of the state. Efficient solid waste management no longer fits within the traditional subdivisions of state government. Act 870 offers counties and municipalities a mechanism for sharing resources and costs. A major prerequisite to making regionalization a reality is responsible leadership by local governments. While the regional boards have no authority beyond what may be delegated by participating local governments, it is hoped that a regional approach will, to some extent, defuse the inevitable reactionary opposition to landfills most keenly felt at the local government level. A recent Attorney General's Opinion (Opinion No. 89 - 363 issued February 22, 1990) could presage and legitimize a trend which does not bode well for a regionalization strategy. This Opinion declares that ADPC&E cannot issue a permit for a landfill which would contravene a local ordinance not prohibited or preempted by state law. The Arkansas Solid Waste Management Act (A.C.A. ยง8 6 - 209) allows localities to adopt standards more restrictive than ADPC&E's regarding the location, design, construction and maintenance of solid waste disposal sites. If local governments use this authority to promote IMBY and NIMEY reactions, the General Assembly's best laid plans for regionalization would be thwarted, and Act 870 procedures and institutions will become nothing more than another bureaucratic hurdle in an already complicated process.


Act 934 of 1989 United States citizens produce more solid waste per capita than any other population in the world. Our "disposable society" throws away a significant proportion of materials which could be reused or processed into useful products. If recycling could be engrained as a component part of solid waste management, the demand on landfill space would be alleviated, a more environmentally sound ethic would result, and new industry would be created. Acknowledging the potential benefits of recycling, the General Assembly adopted Acl 934 of 1989, Ihe Solid Wasle Mallagemelll alld Recycling FUlld Act A.CA. Secliolls 8-6-601 el seq. The Act establishes a grant award system to be funded by the collection of landfill disposal fees. Both the grant and the fee systems are administered by ADPC&E. The disposal fee is charged to the operator of a permitted landfill. If the operator has scales to weigh waste as it enters the landfill, the fee is $1 per ton. Otherwise, the fee is 15 cents for each uncompacted cubic yard of waste, or 30 cents for each compacted cubic yard of wastes. ADPC&E has recently promulgated Part 1 of Regulation o. 11, governing the fee assessment and collection system. In essence, the fee is collected quarterly from the landfill operator and monitored by periodic surveys of the landfill. Copies of the current fee assessment procedures may be obtained from ADPC&E. Twenty-five percent of the fees collected will be used to administer the solid waste regulatory efforts of ADPC&E. The rest will be used to award grants to local governments or their delegated authorities or agents, "to develop solid waste management plans, programs or facilities that integrate recycling as a functional part of the solid waste management system." The costs eligible for grant assistance include planning, equipment, plant or market development expenses. Please note, however, that only governmental entities may be recipients of grants. Throughout the Act, legislative findings and mandates indicate that Act 934 is clearly companion legislation to Act 870. For instance, in legislative findings, the General Assembly declares that too much reliance is placed upon "localized landfills," and that regional solutions must be developed to address solid waste needs "in the context of cooperation and shared resources." A.CA. Sec. 8-6-602. Furthermore, in awarding grants, ADPC&E is to implement "the legislative preference for regional or multi-county solid waste management planning." A.CA. 8-6-609(a). In other words, the recycling incentives of Act 934 will be implemented by ADPC&E to dovetail with the regionalization mandate of Act 870. At this time, only planning for recycling is required by Arkansas law. Governor Clinton, however, has recognized that compulsory recycling may be necessary in the very near future. The scheme implemented by Act 934 should be viewed as smoothing the inevitable transition toward responsible waste stream management. By funding the development of the means and markets to implement recycling, Arkansas stands out as a leader among its neighbors in preparing for environmentally responsible solid waste management. THE ISSUES OF THE lNETIES Everyone involved in solid waste management, from government to the individual, will face tough choices and challenges in the 1990's. ADPC&E has dramatically increased its staffing in the Solid Waste Division, adding more inspectors in the field and more technical and planning expertise in Little Rock. The regulated community should expect increased scrutiny and more stiff enforcement as the staff is augmented to meet state needs. State law and local expectations lay the responsibility for solid waste management on the desks of local government officials. Often, local officials find themselves caught between the populist opposition to a proposed landfill, and the need for and legal obligation to provide solid waste services. Thus, solid waste issues in the ineties will provide fertile ground for both responsible local government leadership and demagoguery. The most bloody battleground may be over costs and financing. Beyond the increased operational costs which new federal regulations may entail, certain 42

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localities are faced with a dilemma when collecting any charges which they might impose. A recent Arkansas Supreme Court case, Freemall v. Curry, 299 Ark. 263 (1989) compounded the procedural hurdles a county government must surmount in order to compel collection of solid waste fees. Local officials should work with ADPC&E to develop legislative solutions to the problem of financing responsible solid waste management. The greatest challenge of the ineties will face individual waste producers. Each and everyone of us must recognize that our societal responsibility does not end when trash is set out at the curb or dropped into a handy trash receptacle. Recycling and source reduction must become part of the community ethic, not just a matter of government regulation. Short cuts, such as back-road dumping and knee-jerk opposition to landfills, must be viewed as problems, not solutions to individual solid waste management dilemlnas. Above all, public awareness of solid waste needs and alternatives is essential. To this end, Act 870 of 1989 created the Arkansas Solid Waste Fact Finding Task Force, composed of public and private sector individuals representing the divergent interests involved in solid waste planning. See list of task force members. The General Assembly charged the task force with the duty to collect information regarding "the sociological, economic, environmental, political and public health ramifications of solid waste practices currently in effect" and to recommend policies and practices which should be adopted to correct any deficiencies discovered. The task force report is due January 1, 1991. Thus far, task force meetings have been fairly high profile and have served as a sounding board for dissemination of innovative ideas. To assure that the

task force report accurately reflects the current conditions and problems faced by the state, persons with solid waste interests or concerns should contact a

member of the task force or the ADPC&E liaison about the schedule and agendas of future meetings.

CONCLUSION One of the maxims of solid waste management in the past has been that everyone wants garbage picked up; nobody wants it put down. In the Nineties, myopia must be replaced by some harsh realizations: our society generates solid waste in immense quantities, lifestyles are not changed overnight and societal demands on the environment lead to palpable economic costs on individuals. In other words, regulatory, governmental and individual perspectives will be the subject of intense scrutiny as tough decisions are made regarding solid waste needs in light of environmental constraints. Recent initiatives by the General Assembly provide the template for responsible planning and action. In the end, however, individual attitudes will determine whether our collective solutions to solid waste management problems are progressive and environmentally sound, rather than reactionary, destructive

or ultimately futile.

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44

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WETLAND PROTECTION IN ARKANSAS: DROWNING

IN

THE

ISSUES

By Paul N. Means, Director of Governmental Affairs, Arkansas Power & Light The term "wetlands protection" has a nurnber of colloquial meanings.

environmentally damaging, and practicable a Iternative exists, the

The city fathers of Fort Smith will tell

Corps will not issue a permit. This

that wetlands protection is a

somewhat arcane area of regulatory

bunch of selfish environmentalists using wetlands regulations to delay construction of a badly needed water supply reservoir. Ask a member of Ducks Unlimited, and he will tell you that we must protect wetlands or else migratory waterfowl will become extinct. A hydraulic engineer will tell you wetlands are natural sponges that hold water and prevent flooding. Developers see wetlands as a low

law is poised for explosive growth. Two recent Arkansas pemut applications

yOll

initial

investment and

big

illustrate the enormous economic and envlronmental consequences of Section

404 pemutting. The Fort Smith region has a water limited economy. Industry needs water for processing and employees need water for their homes. Fort

Smith is rapidly outgrowing its water supply reservoir and soon the lack of

scenic stream by the State of Oklahoma and is dear to the heart of Arkansas environmental organizations because it is one of the few remaining undammed streams in north Arkansas. Oklahoma and 路'the environmentalists challenged issuance of a permit by the Corps. At stake was the Fort Smith economy or protection of a scenic stream. While a number of other

regulatory agency approvals were required, the Section 404 was one of the most difficult because of the strict pennitting standards. A second example is Rosenbaum Lake which is located at the north end of the 1-430 bridge

profits.

water will stop economic growth.

Ask a lawyer to describe wetland

After an engineering study, the city

protection law, and chances are you

will draw" blank look. Before dredging or filling in a

chose to construct a new water supply reservoir on Lee Creek. Placing a dam across the creek involves dredg-

wetland, a person must first have a

ing and filling and consequently

area along the river, it was turned

Section 404 permit issued by the U.s. Army Corps of Engineers. If a less

requires a Section 404 permit. Lee Creek happens to be considered a

into a lake by a levee constructed as part of the navigation project and

over the Arkansas River just west of

Little Rock. Originally an overflow


the road fill for the interstate. It is now a beautiful cypress swamp with water lilies, abundant birds and a significant fish population. It is also right on the interstate and easily accessible to a large urban area. The Arkansas River is popular with recreational boaters and already has a fair share of large yachts. Expensive boats, a classy clubhouse and the right location equal big profits. The Hastings family bought Rosenbaum Lake and announced plans to turn it into an upscale marina. Environmentalists

saw the destruction of a valuable wetland and challenged issuance of a Section 404 permit. Once again environmental protection and millions

of dollars in development collided head-on.

a prominent businessman may well ask you to represent him in challenging

issuance

of

a

perrnit.

Environmental protection has become the special interest of conservatives as well as liberals. In this political climate, administrative proceedings on Section 404 permits will become more common.

Unlike courtroom litigation, Section 404 permitting is a quagmire of slippery parties, gummy procedures and soggy standards. Successfully representing your client in this arena requires learning new tricks. The

purpose of this article is to provide a primer on how to approach Section 404 permitting from the perspective of a lawyer. It will identify the players, the key legal issues, and suggest a few

Congress established wetlands protection in Section 404 of the Clean Water Act, 33 USC § 1344. This section vests the authority to issue a permit for dredge or fill activities in the Corps of Engineers. It also gives the U.s. Environmental Protection Agency (EPA) a role in the process. EPA and the Corps must jointly develop guidelines for the criteria to be applied in determining if a permit will be issued. EPA also has veto authority over issuance of a permit if it finds the activity will have an unacceptable adverse environmental impact. The

Corps is required to notify the U.s. Fish and Wildlife Service (USFWS) of permits, and USFWS is directed to provide the Corps with comments on the application. The state is given a

Fort Smith was granted a Section

tactics. The nrtide is not an exhaustive

role in the process. In order to receive

404 permit, and the Rosenbaum Lake permit application is still being processed. These examples demonstrate that wetlands protection is becoming a high stakes game. The definition of a wetland is extremely broad, and if the land is wet for part of the year, it is covered. There are wetlands in the Ozark Mountains as well as the swamps of east Arkansas. Roads, levees, dumping, bridges, irrigation pumps, boat docks, land clearing and much more requires a Section 404

review of administrative procedures and permit review criteria. There is no substitute for reading the voluminous

a permit, the applicant must provide the Corps with a certification from the Arkansas Department of Pollution Control and Ecology (ADPC&E) that the proposed activity will not violate

regulations and educating yourself on standards, criteria and deadlines.

permit. Failure to obtain a permit can lead to a remedial court order.

Developers in Boulder, Colorado recently completed a 25-unit condominium development in a wetland without obtaining a Section 404 permit. The Corps filed a civil enforcement action, and the federal

court ordered the development demolished and the wetland restored to its natural condition. You may

already be representing clients with a Section 404 problem without realizing it. Employment opportunities for la wyers a re not Ii m ited to representing permit applicants. Just 15 years ago, you could safely assure a real estate developer that the Corps would never deny a Section 404 permit. How quickly social values have changed. Public sentiment for wetlands protection is so strong that President George Bush has announced a national policy of no further loss of wetlands. Even if you do not represent fuzzy-headed liberal environmentalists, 46

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state water quality standards, 33 USC ยง 1341. Anybody is allowed to request a public hearing and to make comments.

Any process that involves four government agencies and the general

public is teeming with opportunities to practice law. Most permit applications are routine. A permit to build a boat dock at your lakefront lot will almost stumble through by itself. Gravel dredging is a bit more complicated, but a permit can be obtained with a whole list of special conditions that must be met. Draining

land for corporate agriculture or forestry, private road construction, dams and filling for real estate development can arouse the interest of environmentalists and lead to a

special Dante's Inferno reserved for the practicing lawyer, a public hearing. Congress wanted environmental protection to be the concern of every citizen. otice of permit applications must be made in newspapers and mailed to interested agencies, elected officials and environmental groups.

requires a new approach. The most

obvious approach is to organize your case around the various agencies and

the documentation that must be submitted to each. What is obvious, is wrong. Section 404 permitting is procedurally fragmented among four agencies. Your goal should be to unify the process and to induce the agencies to cooperate to your client,s

channel into the Arkansas River would violate several of these standards and change the ecosystem. ADPC&E found that without special measures to protect the aquatic

species inhabiting the lake, the water quality certificate should be denied. The EPA guidelines ask if there is a practicable alternative to the proposed activity that would have less

advantage. The one common theme to

adverse environmental impact on the

the agencies review is the degree of

ecosystem. To determine adverse impacts, EPA will examine water quality, flow patterns, aquatic species,

adverse environmental impact and the possibility of alternatives. Your case

should be organized around this theme. The environmental impact of a dnedge and fill activity is measuned by both state and federal regulatory criteria. The state water quality standards are embodied in Regulation o. 2 of ADPC&E. (Copies are available at ADPC&E, but not published.) The federal criteria promulgated by EPA are found at 40 C.F.R. ยง 230. Your client's proposed activity should be evaluated against these criteria.

The Clean Water Act requires each state pollution control agency to adopt water quality standards that will protect existing uses of a water body. The standards for Arkansas are tailored to the geographic regions and ecological categories of water bodies across the state. The use or ecosystem of Rosenbaum Lake for instance is that

wildlife, recreation and human uses of the water. Practicable alternatives are

those available and capable of being done after taking into consideration cost, existing technology and logistics in light of overall project purposes. Developing factual evaluations against these criteria is not the realm

of good old boys and county road engineers. Because it is their job to evaluate permit applications against these standards and guidelines, ADPC&E, EPA, and USFWS have staffs of trained engineers, chemists, biologists and ecologists. They will examine the application, perhaps make field studies, and prepare reports on water quality standards, environmental impacts, and practica ble a Iterna ti ves. Expert

Any person can request a public hearing, and where wetlands are threatened, the public will rally to their defense. ormally the Corps, EPA, and ADPC&E will hold a joint public hearing. This so-called hearing is in no way similar to a hearing in the sense of the legal profession. Instead people are allowed a turn to speak for a few minutes to a tape recorder. Various officials for regulatory agencies are scattered around, but they do not actively participate. In fact ADPC&E can stand

of a cypress swamp. The standards set

government experts to make your

limits on temperature, silt, oxygen concentrations and so forth. If it is demonstrated that the discharge of pollutants or other activity will cause a violation of one of these standards, ADPC&E will deny a water quality

case. Don't succumb to temptation if your client can afford his own experts. If you represent a permit

and make a statement in favor of a

certification.

Dredging Rosenbaum

mental protection agency will have a natural bias against your client. If you represent opponents of a permit,

permit only to be followed by EPA opposing the permit. (It's like a law clerk testifying for his judge.) Lawyers can make statements like anyone else, but no questions allowed. The mayor can make a campaign speech. The junior high civics class can come and

Lake to a greater depth and opening a

remember that a regulatory agency

make a statement for extra credit. Grown men cuss and invite each other

outside. Mothers cry for lost children and preachers quote scripture. The crowd cheers, boos and heckles. In the midst of this babble and pandemonium, you the lawyer are

presenting your case for the record. It is hell! Preparing for such a spectacle

witnesses are expensive and there is a

temptation

to

use

these

free

applicant, the staff of an environ-

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must have some appearance of objectivity and agency staff is unlikely to aggressively oppose a permit. Retain YOUT own witnesses whenever

possible. Arkansas has qualified consulting firms and academics who can do the job. Major projects such as a dam will require a massive environmental impact statement prepared by many experts. A one lane road may require only a brief environmental assessment prepared by a fisheries biologist. In any event prepare a written report which can serve as a

reference on the permit application. Environmental agency employees are chronically overworked and may just plagiarize your report to develop their own. There is also some mystical aura to an environmental report that

gives you public credibility. Finally, the authors of the report can assist you as witnesses in presenting your case at the public hearing. If your client is too poor to hire environmental

consultants,

If they awarded a PhD in real estate appraisal, this is how it would look. There is no greater honor In real estate appraisal than to wear lhe pin of an MAL MAls are experts in all areas of real estaleappraisal and operate according to a stricUy enforced Code of Ethics and Standards of Professional Practice. MA1s represent only 3% of the appraisers in America. Yet. it is on their reports that our courts. government agencies. lending institu路 lions. developers and real estate brokers have depended for over 50 years.

an

alternative is to use reports prepared for similar projects. The files at the Corps, EPA, ADPC&E or USFWS may contain reports you can use to present

your case by analogy. There is no hearsay rule in Section 404 permitting. There is also no prohibition of ex parte communications with agency staff. In fact such communication is

encouraged by regulation, 33 C.ER. 搂 325.1 fbi. Besides having the power to help or hinder your cause, agency staff is a source of invaluable advice and a wealth of information. The ideal is to gather together the staff from the Corps, EPA, USFWS and ADPC&E for a common meeting to discuss the project. Reality is traveling around to each office individually. The first meeting is a friendly get together to explore the special concerns and interests staff has about the project. You can then address these concerns

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standards and is an adverse environ-

and monitor water quality. If standards are violated during construction, the agency reserves the

prepared for your client. Once the

mental impact. Gravel dredging is thus prima facie not permitted. The solution is a permit condition that requires dredging activity to be halted during the month of May when fish lay their eggs. The developers of a dam may be required to stock the new

permit application is formally under

reservoir with fish to mitigate those

killed as a result of the project. While

review, subsequent meetings can be held to negotiate permit conditions, which are the environmental equivalent of a plea bargain. Permit conditions are best appreciated by examples. Gravel dredging stirs up silt that can cover fish eggs and prevent them from hatching. This violates water quality

killed during construction. A developer may need 10 acres for a barge loading facility but buy 100 acres and operate the surplus 90 acres as a bird sanctuary. Opponents can use

permit conditions are negutiable, remember that they are also enforce-

in the written environmental report

48

ARKA

SAS

conditions to place substantial risk on

right to halt further work. Permit conditions are a way to make the

project impossible without denying the permit. For instance, the dam can be built as long as no snail darters are

able by the agencies under civil and criminal authorities. Make sure your client can meet any conditions that

you negotiate. Now that you have marshaled

the applicant and thus discourage his completing the project. The applicant

your evidence and inspired the agency

may be allowed to start construction

staffs, what do you do about the

LAWYER

APRIL

1 990


public hearing? One of the new techniques used to train athletes is

pre-visualization. Imagine that you

up cards are placed on a table outside, and those wishing to make a statement fill out a card with their

they add a legitimacy to the cause of your client. Community organizations are another source of witnesses. The

Chamber of Commerce or the Audubon Society carry weight as an

are an NFL quarterback on your own 10 yard line with time for one more

name and interest. Depending on the

play. You bobble the snap but get a handle on the ball and drop back. You check your primary and secondary

will set a time limit on each speaker in order to give everyone a chance to

organization. There is strength in

speak. Any statement may be supplemented with written comments submitted at the hearing or within a specified time after the hearing. The hearing begins with the presiding officer explaining the ground rules. A Corps representative may describe the project or the applicant may be asked to give a factual description. Presiding officers have different preferences for ordering the statements. Some let politicians go first, others alternate pro and con, or the speakers are simply taken in the order cards are received. o questions are allowed by any party, and a transcript is kept of the

chorus to cheer for your witnesses and

receivers,

but both are covered.

Feeling pressure, you scramble to the left and wave to

YOUT

wide receiver to

go long. A 280-pound linebacker is bearing down on you like an enraged

elephant. In desperation, you throw a "Hail Mary." The linebacker slips and falls nat on his face only inches from your feet while the wide receiver hauls in the pass and dances into the end zone.

Take this image of

invulnerability and glory with you to the public hearing, The public hearing is where the government agencies consider the

public interest. Do not confuse the public interest with an impartial judge or jury. The public interest is made up to a large degree of current public opinion. These regulatory agencies are in the executive branch and report to

number of cards, the presiding officer

oral statements.

Resign yourself to the fact that your case will be presented in random order. Coach your witnesses on what to say and how to say it in five to 10 minutes. Any expert witness on your

the president and governor. Politics creeps into the process. You have a dual objective at the public hearing. One is to raise the legal issues and present the factual evidence necessary

statement. Put the legal issues and factual evidence into the record by filing this written statement as a

to prove your case. The second is to

supplement to oral remarks. Oral

rally public opinion to your client. To

statements should be readily quotable

achieve these objectives, you must

in the rnedia and incisively make the

assemble a cast of individuals to make

point. While you the lawyer may be a brilliant speaker, an ecologist will

appropriate statements on your

behalf. At a typical hearing, a representative of the Corps will preside. It may be a joint hearing involving EPA, ADPC&E and the Corps. Sign-

behalf should present his expert analysis and opinions in a written

have more influence over media opinion regarding environmental

impacts than your oratory. If you can get them off the fence, politicians are good witnesses because

Amarillo.

in a man with six children who was

laid off in a factory closing. Approval of the permit might bring him a job. A small child asking the Corps to save a wetland for future generations can make a devastating clip on the sixo'clock news. You may want to angle for a rebuttal opportunity by having some witnesses hang around and be one of the last to sign up to speak. People will stand up and say unbelievable and mean-spirited things at public hearings. Above all keep control of your temper and that of your client.

Once the hearing is complete and all the written comments have been

received, the Corps will begin final review of the application, The Corps is part of the U.S. Army and can be relied upon to be methodical and thorough in its review. The procedures and guidelines followed by the Corps are at 33 C.F.R. §§ 320, 323, 325, 327, and 328. By now you should have addressed each relevant issue through documentation submitted with the application and at the public hearing. If there are conflicting positions among the agencies given standing by the statute, the Corps can attempt to negotiate compromises. The Corps is also free to impose its own special

process, a permit is either issued or

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conditions independent of those re'luested by other agencies. At the end of this amaZingly convoluted

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denied. In the early years of Section 404 permitting, the courts were eager to hear appeals of permit decisions. The ne\v has worn off environmental law

and courts now tend to summarily dismiss appeals by deferring to the administrative agency and finding that since there was some evidence to

support the decision, it will not be overturned. Perhaps one of the reasons courts lost interest was that most appeals raised procedural errors.


The quality of the environmental study, insufficient notices, standing, interpretation of definitions and allegations of bias do not arouse judicial interest in a case. The jumbled record from the public hearing is more than most judges or clerks are willing to tackle. If your client has sufficient staying power to carry through with an appeal, you must build your issues into the record in a way that will stand out in a format familiar to a judge. Think like an advertising executive. If you write a letter to the Corps, format the body like a pleading. In reports and written statements use boldface headings to highlight legal issues and follow with your evidence. Agencies are notorious

for issuing decisions with no explanation. Work with the agency staff to develop a findings of fact and conclusions to explain the decision. Use every opportunity to make the record look legal. By its very nature dredge and fill in a wetland is an adverse environmental impact, and it is not productive to beleaguer this issue. If you are representing a permit applicant, you should focus on special permit conditions. What can be done to mitigate the environmental impact and how can this mitigation be documented? Can your client afford

to set aside a portion of the project for a bird sanctuary? Is it enough acreage to be meaningful? Will a wildlife biologist testify in support? Examine the project for special conditions, and propose those to the agencies on the front end by letter and written report. Taking an environmentally sensitive attitude from the start can help attract public opinion to your side. If you are an opponent, try focusing on practicable alternatives. Instead of dredging gravel from the stream, can it be extracted from the floodplain adjacent to the stream? Present these to the agencies, and document why they are practicable. This shifts the burden of proof onto agencies and applicants to justify the proposed activity. Raising substantive issues and challenging the agency's failure to explain its response is a better strategy than pointing out small procedural errors. This is a somewhat cursory overview of how to approach Section

404 permitting on behalf of your client. Many projects are site specific and will require you to develop your strategy on a case-by-case basis. Given the current political mood and popular opinion, your honest advice to a client looking to develop wetlands should be, "Give strong consideration to moving to higher ground."

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