Are Feds trying to scam the Navajo people?

[Zorra]

President of Navajo Nation upset with EPA's response to spill
Wednesday, August 12, 2015
snip---
“The federal government is asking our people to waive their future rights because they know without the waiver they will be paying millions to our people," Begaye said. "This is simple; the feds are protecting themselves at the expense of the Navajo people and it is outrageous.”

"This is unacceptable," added Begaye, who noted that the EPA -- including Administrator McCarthy -- have accepted responsibility for the incident. The damages to our people will be long term and the Navajo Nation will not settle for pennies."

According to tribal officials, EPA employees have been passing out the document -- which is labeled "Gold King Mine Release (A8K9) Claim" -- at meetings on the reservation. Anyone who signs it agrees that it represents a "FULL SATISFACTION AND FINAL SETTLEMENT" of any damages, injuries or even deaths.

"Think twice before you sign this form, we must hold U.S. EPA fully accountable for their negligence," warned Vice President Nez.

http://www.indianz.com/News/2015/018535.asp

[haikugal]

1. Arrrrgh!!

I hope no one signs! Damn!

Thanks Zorra!

[TwilightGardener]

2. Conspiracy theory has it that the EPA knew it was going to spill the crud into waterway--

some dude supposedly posted in a Durango or Silverton paper a few weeks ago warning that the EPA was about to cause a spill with its actions concerning the mine. Zero Hedge, so a very questionable source.

[questionseverything]

3. the democratic gov said looks like we dodged the bullet

<rolls eyes>

he was down playing the disaster on msnbc earlier today,,,made me a lil sick

[4139]

4. Ugh! It'll be months/years before they know the damage. +link to epa official form

http://www2.epa.gov/goldkingmine/claims-process-and-standard-form-95-damage-injury-death-result-gold-king-mine-release

[Zorra]

5. "Just sign right here on the dotted line, pay no attention to the fine print.

Everyone who signs today will receive a free blanket, courtesy of Corporate USA Mining and Railroad!"

[4139]

8. I guess the EPA learned from the BP Gulf spill...

[gratuitous]

6. In a country with a sane environmental policy

In a country with a sane environmental policy, we'd require the mine owners to set up a fund that would pay for the clean-up of the colossal mess they always leave behind. But because that would require fucksticks like Don Blankenship to make less money, we can't possibly do that. I believe freedom or job creation is involved somehow.

[former9thward]

7. This mine was closed almost a 100 years ago.

Having a "sane" policy means nothing today about the thousands of abandoned mines which dot the SW today. The owners/operators have been dead for generations.

[Zorra]

9. "A Terrible Mine Is A Good Thing To Waste!"

This one I have a bit of first hand experience with, helping to try to stop it before it began, almost 20 yrs ago.

A sane environmental policy means a whole lot about the mines that are operating. And to cleaning up the destruction left behind by greedy capitalists who raped the land and left it poisoned

Department of Ecology News Release - September 8, 2014
Mine funds environmental projects in Okanogan County

YAKIMA –Operators of the Buckhorn Gold Mine near Chesaw will soon spend $180,000 on projects benefiting the environment across Okanogan County. The work is a result of a penalty settlement between the company and the Washington Department of Ecology.

In July 2012, Ecology fined Crown Resources $395,000 for water quality permit violations at the Buckhorn Gold Mine. In June 2013, the two agreed that $80,000 would be paid immediately and $180,000 would go toward funding environmental remediation projects in the vicinity of the mine to settle the penalty.

The first project will apply $100,000 toward installing a network of 17 rain gauges in the burned area of the Carlton Complex wildfire. The gauges will automatically record and transmit precipitation data to provide early warning to residents of flash floods. It will also help gather information about the fire’s effects and recovery. Partners in this effort include Ecology, the Okanogan Conservation District, National Weather Service and Governor’s Office.
snip---
Ecology often recommends the funding of supplemental environmental projects as part of a settlement or in lieu of a portion of a penalty issued for environmental violations. This allows local communities and environments to benefit instead of payments just going into the state’s general fund.

http://www.ecy.wa.gov/news/2014/142.htm

A slap on the wrist, and it's poison the earth some more, back to business as usual.

[gratuitous]

10. The failures of yesterday haunt us today

Will this latest catastrophe spur a change in how we manage the extraction industries going forward, or will we continue to release these toxic little time bombs into the environment every now and then? I know that in my area we've got some lovely little Superfund sites that are still being cleaned up at our expense decades after the creosote businesses closed shop and the owners blew town. Libby, Montana will be poisoned for generations to come, but W.R. Grace doesn't have to pick up the tab or face criminal sanction.

I wonder why this issue never seems to get to the front of the line during presidential campaigns? Instead, we get candidate after candidate (Republicans, of course) yammering on about government waste and over-regulation, and how they're going to abolish the EPA.

[historylovr]

11. K & R

This is very unacceptable!

[jberryhill]

12. That's highly misinformed and simply not true

First, I imagine that Mr. Begaye has not consulted with an attorney familiar with claims under the Federal Tort Claims Act (FTCA).

The form in question is Standard Form 95, which was most certainly not ginned up for this occasion. The purpose of the form is to satisfy a number of procedural requirements of the FTCA.

Holding that thought for a minute, the FTCA is the law which specifies the conditions under which people can sue the government for tort claims (negligence, personal injury, etc.). It used to be that the government was entirely immune from tort lawsuits, under the doctrine of sovereign immunity. The entire ability to sue the government on tort claims (except for certain cases having their very own statute), is premised on the requirements of the FTCA.

In short - it's not like suing a private company, and there are a lot of restrictions on personal and property injury claims against the US government.

The purpose of Form 95 is described here:

http://www.justice.gov/civil/documents-and-forms-0

Standard Form 95. Standard Form 95 is used to present claims against the United States under the Federal Tort Claims Act (FTCA) for property damage, personal injury, or death allegedly caused by a federal employee's negligence or wrongful act or omission occurring within the scope of the employee's federal employment. These claims must be presented to the Federal agency whose employee conduct gave rise to the injury.

Standard Form 95 is not required to present a claim under the FTCA, but it is a convenient format for supplying the information necessary to bring an FTCA claim. Please note that a completed form must state a claim for money damages in a “sum certain” amount (that is, a specific amount) claimed for personal injury, death, or injury to or loss of property. In addition, if a sum certain is not specified in Standard Form 95 block 12d, or in accompanying information, a submission cannot be considered a valid presentation of a claim. The completed Standard Form 95 must be presented to the appropriate federal agency within two years after the claim accrues.

While "not required", it does capture all of the requirements of the FTCA.

HOWEVER, the point of the waiver language is to say "I want $X for THIS, and $Y for THAT," and so on. In other words if it is "I want $500 for a poisoned sheep", the waiver language does limit you to $500 for that poisoned sheep. It does not limit you for a later claim for something else relating to the incident as a whole.

In other words it is not "I want $X in compensation for the toxic water release".

The FTCA itself provides explicit language on that point, described in excruciating detail on this overview of the FTCA:

https://www.cozen.com/admin/files/publications/Federal_Tort_Claims_Act_2208163.pdf

or this one:

http://www.shulmanrogers.com/assets/attachments/FTCA%20Article.pdf

(FN14 Ad damnum in suit may be raised to an amount higher than that claimed if you can show that there is newly discovered evidence that was not reasonably available prior to filing the claim. See Spivey v. United States, 912 F.2d 80 (4th Cir. 1990), disallowing an upward amendment because the injury could have been discovered prior to filing the claim. )

The FTCA provides:

(b) Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts relating to the amount of the claim;

Such "newly discovered evidence" or "intervening facts" would include things that come up long after the "dead sheep" initially noted on the form. The point is that the $500 claimed for that sheep isn't going to increase. If other effects or consequences arise, they would be out of the scope of the waiver with respect to the claim for THAT sheep.

Again, this is not some tactic brewed up for this occasion. It is how tort lawsuits against the government work.

The bottom line is that whether they use the form, or provide all of the required information apart from using the form, they have to follow the FTCA in order to later premise a lawsuit if the claims are denied, and must first have specified "an amount certain" when they made the initial pre-litigation claim to the agency. If new stuff comes up, that's fine, but that's neither here nor there on the initial amount claimed for the specific damage cited.

[Zorra]

13. Oh, yeah, treaties. I'm sure President Begaye understands better than you could ever imagine. nt

[jberryhill]

15. Who said anything about treaties?

The FTCA is not a treaty.

The claim form was not invented for this occasion.

I'm sure that President Begaye is a fine person with a lot of great qualifications to represent the Diné. I would not expect working knowledge of the FTCA to be among them.

[Zorra]

16. Never mind. nt

[flying rabbit]

14. Excellent summation.

Although it interferes with range of motion on the ol' kneejerk.

[Zorra]

17. I believe you may have completely missed my sarcasm.

No matter what you, or government papers, say about what is legal, what is law, blahblahblah, NA's everywhere have no reason to have confidence in it.

Now, I assume you either are, or were, an attorney, a paralegal, or maybe just a DU armchair lawyer who has a significant interest in law. No snark, I just don't know what perspective you are coming from. It makes no difference to me in this particular case.

If you are an attorney, I suspect you have, at least, rudimentary knowledge of US history.

If you have at least this rudimentary knowledge of US history, think about why the President of the Navajo Nation would not want people of the Navajo Nation to sign this form.

If you are indeed an attorney, you know better than most that the law is not immutable, and is subject to interpretation.

The honor and integrity of your government papers and government words are a tragic joke to any people who have been long term victims of government agents and their papers, and the inevitable convoluted interpretations of papers mean won't mean jack shit to Native Americans until the promise(s) on the paper has been fulfilled for at least a century.

Ya, ya, I know, "but the papers say this! the papers say that! Trust me! Just sign here, and golden unicorns will be flying out your asses before you know it. You can even keep the pen!"

Now, you can go on and on about how the law says this, and the law says that, how I know nothing about the law, and how President Begaye doesn't have a clue about what he's talking about, and I'm not going to continue to argue with you here. Am I going to believe what I see, or what you tell me?

I know better than to trust in the law, from personal experience and historical precedent.

Here's one more thing about the law that is currently being expressed in popular culture, that should help reinforce the point I am trying to make about "The Law":

Black Lives Matter.

[jberryhill]

18. A couple of things

Yes, I am an attorney, and yes, I spent a summer on the Navajo reservation in my youth as a volunteer worker.

If you are convinced that they are going to be screwed by the US government, then it really doesn't matter if they put in claims under the FTCA or not, now does it.

This statement of yours encapsulates it pretty simply:

I know better than to trust in the law, from personal experience and historical precedent.

Okay, so then as far as the legal system is concerned, it doesn't make any difference what they do. They will get shafted by the US government in any event.

I didn't say that his reaction is not understandable.

So "the law" is off the table as a means of seeking redress. What do you propose instead?

[Zorra]

19. The reasonable thing is what President Begaye suggested.

It's simple. Don't sign anything, assess the situation over time, come up with a course of action that would be best for the Navajo people, and then attempt to employ this action, and hope to not get cheated again.

I propose that we completely overhaul the US justice system to make it as fair and equitable as possible to every citizen, regardless of economic circumstances, gender, race, color, creed, sexual orientation.

The probable best first step to take in this overhaul of the legal system is to take the money out of justice.

In the legal system, the amount of money you have is often directly proportional to the amount of justice received.

In the case of the wealthy, wealth is very often successfully used to circumvent justice.

For now, justice systems in the US are what they are.

Until a homeless person has the same ability to procure justice for herself that a billionaire does, and beyond, the idea that there is equal justice in the US is moot.

The people have compelling interest to seek radical change in every area of the US justice system.