Below is the legal filing of the first peak-oil related lawsuit, I believe, in this country. I believe there was valid cause to bring suit, which extended into considerations of carrying capacity and the rollover in the petroleum market from buyer's to sellers. The concept of Res Ecologica was my invention, derived from such as Res Publica which in Latin means the Good of the Public, and which attempted to give legal standing to the ecosystem. It was a pro bono suit in which I represented myself as lawyers are too preoccupied to know about peak-oil and I would have gained no money that I could give to another if I had won -- although there was the possibility of a creative endeavor.
[Plaintiff retains right to Jury Trial]
The plaintiff laments before the court that under existing law it would not have been possible to bring a timely halt to this assault upon the ecosystem, at the beginning of negligence, due to the lack of standing before the court of the ecosystem. Therefore, having climbed its highest mountain, rafted the rage of its flooding river, tilled its good soil with bared feet, and suffered to extirpate prior threat, plaintiff does affirm as native to have merit before this Santa Cruz Valley ecosystem, to be the voice of its unheard injuries, its will to endure and provide sustenance without end to the human and other Earthly beings. The plaintiffs are two, as one voice.
I, Steven Morningthunder, hereinafter known as plaintiff, affirm that I have standing before the Pima County Superior Court of Arizona, by virtue of legal residence within Green Valley, County of Pima, Arizona, and as a member of the Community Water Company, against whom collectively and individually the transgression is alleged to have been first committed by Cyprus Amax Minerals Company, continued by the taking over Phelps Dodge Mining Company, in turn recently acquired by Freeport McMoRan Copper and Gold Inc., (Mar 07) the latter two as the defendants, to wit, gross negligence in the custodianship of the Twin Buttes Mine, 31° 52” N & 111° 9” W, located in Pima County and adjacent to Green Valley, leaving the open pit Mine without sufficient operating maintenance for an extended period, as a vast exposed rain-driven injection well funneling into itself the mine runoffs due to the excavated depth of the Mine significantly below the static water table level, thus enabling a most unnatural and fast vector of the pollutions under custodianship into the common aquifer. The drilling of monitoring wells by the Mine custodian to determine the nature of the extending plume attests to admission of culpability. [With similarity to what promises to occur in the nuclear power industry, the mine's custodians have walked away from properly cleaning up their ecological havoc due to the unprofitability of the task to their bottom line, which if they had thought they would ever truly have to do, they might have never begun the mine in the open pit manner. The mines walk off with billions of pounds of copper and hope to get away with a 3 dollar padlock for the process of closure. Now we know how the Nigerians feel in their delta -- shafted! ]
Plaintiff requests that the court order at the defendants’ expense that the pollution gradient and character be determined from the body of water at the injection site to the edge of the breach of pollution, that any and all studies be performed which may be needed to comprehend the probable magnitude of the emerging assault upon the ecosystem, in metric.
Plaintiff can not tabulate consequences to the ecosystem as the prospective extent of damage thereof only begins to be determined and may well require as much time more to fully reveal as has elapsed since the beginning of negligence, assuming quality and timeliness of closure, and may need to be formulated in perpetuity. Believing that closure is a better choice than heedless abandonment to the natural elements, plaintiff requests that punitive damages to the ecosystem be based upon the cost of closure whose avoidance is attempted and the consequent cost of that avoidance, to reflect the potential gravity of having desecrated this native aquifer, and that the right of this Mine custodian to withdraw uncontaminated groundwater from this aquifer, be rescinded, the totality of remedy to be committed and transferred, respectively, to a furthering intelligence of human interaction with the ecosystem, res ecologica. [This is an effort to restore the water rights of Canoa Ranch to that land, to create a community on that land, and to find a way to finance it. See: http://greatchange.org/ng-straws-mthunder-clinton.html http://greatchange.org/ng-essay,foundation_of_civilization.html ]
Plaintiff as a shareholder of Farmers Investment Company opines alone that allowing its legally apportioned aquifer to be encroached upon without compensation, as evidenced res ipsa in the drilling at expense of the Mine custodian a well proximate to the Santa Cruz River to replace two distant producing wells nearest to the Mine and belonging to Community Water Company that were abandoned in retreat before defendants’ breach of pollution, should in the delivery of justice not be considered in itself modus vivendi, but rather, an interim arrangement to be subsumed in the court’s more extensive adjudication, res ecologica, leading therefrom to res publica.
Therefore, devolving consideration of the concept of sustainability leads to opportune abrogation of the preposterous Arizona Groundwater Code, being both an ecological travesty and a mathematical hoax, with its mean-spirited requirement for only a 100 year supply of native groundwater. There can be no wisdom in planning ahead for the end of civilization, for while it may seem comfortably distant at one moment, as that end nears, it will be less comforting to those who still envision life ahead of them, and is anathema to those who decry the otherworld religions and would know the Earth without end. Furthermore, accelerating rates of water extraction would combine with increasing difficulty of extraction to roughly correspond to a Hubbert Curve of finite resource exhaustion, with the peak rate of extraction occurring near the total exhaustion midpoint in terms of both quantity and time.
Attainment of the Sustainable will not be a finagling to continue existing momentums; to the contrary, if we wish to advance endeavor of the culturing of intelligence, it will require great change beyond the edge of current imagination, for it is a wall of infinite dimension that stands before the present course of human evolution, this wise finitude of the Earth and its resources. As we learn how to run out of oil, our individualized consciousness will no longer be able to conceive the world as a flat map toward the center of which wealth is constrained.
Lastly, plaintiff requests that any attempted resolution to the loss of water by Community Water Company as effected through undisclosed negotiation with Augusta Resources under presentation of urgency be considered indicative of imminent and further degradation of native supply, reason for urgency of adjudication, and in an illogic that refuses to confront the perpetrator of that loss, be subordinated to this adjudication, the specific resolution to depend upon how the sought judgments may prevail.
“Oh Change. Great may be thy might, but do not come to leave our hearts with dry sand, for we are creatures of dreams, and go willingly only toward joy and more abundant light.”
Twin Buttes Mine
The water that you see in the pits is at the static water table level, roughly 240 meters above the bottom of the deepest hole; there is no continual inflow of water that is able to overcome the 230 cm of annual evaporation in Arizona; there is only 18 cm of rain. These are not lakes jumping with fish, but bodies of mine waste strongly containing and continuously augmented with the sulfated ion of sulfuric acid. The depth of the eastern, right pit attained to 564 m above sea level. The mine has been neglected for more than 12 years.
In the case of the Twin Buttes mine, a scenario of wanton or gross negligence might unfold as follows.
For some unidentified reason the mine custodian decides that they want to remove water from the Eastern pit of the mine where it stands at water table level some thousand feet above the excavation bottom. The agent contacts a nearby large farm and asks them if they are interested in receiving the water. The hydraulic engineer is charged with examining the proposal and he sends up to the mine pit his assistant who takes a rowboat out into the middle of the stagnant surface where he draws samples of the water, which are delivered to local laboratories for analysis, and which is in turn placed into the hands of the U of A agriculture department for their recommendation. The result is that the farm is completely averse to having the offered water placed upon their land, no matter the terms, and a copy of the analysis is given to the agent, with a “thanks but no thanks”.
From this point onward, the mine custodian can be legally considered aware that its interface with the aquifer is one of pollution already too severe for agriculture, let alone human consumption. From this point onward, continuing negligence becomes wanton or gross.
The above is not simply a hypothetical scenario. More than a decade ago, the rowboat was oared by Burrell Newton, the engineer was Warren Culbertson, the farm Farmer’s Investment Company, the agent Park’s Corporation, and the present mine custodian at the top tier level is Freeport McMoRan.
As to being “in the air”, when my brother-in-law heard that I had endeavored a lawsuit against Phelps-dodge for polluting the aquifer, he said to my father, and I quote loosely, “You remember how we talked about that years ago, how there was a spreading sulfate plume down from the mine and to the north toward Tucson.” While not as common as knowledge of who last won the World Series, to more than just a few, manifestation of the pollution of the aquifer was no surprise. It was never a question of “if” but only of “when”.
The dotted red arrow is where I grew up. The solid red arrow is where I live now. The dashed red line indicates where the Mine custodian has been belatedly drilling monitoring wells to detect the range of the pollution breach, and it is not a plume, it is a front, a tsunami of pollution momentarily held in check by the usage of the contaminated water for ongoing mining. Eight wells in all belonged to Community Water Company. Two were polluted out of commision by sulfates, and other contaminants. A new well E1, indicated by the black arrow, was drilled down by the river, thus encroaching upon the farm to its East in comparison to how the aquifer had previously been drained. The yellow arrow points to a measured land elevation point corresponding to a water well of 869 m. The pumping water level in the valley is about 60 meters below ground level.
The dotted green arrow is the 53 acre block where Augusta resources would like to extract 5000 acre feet a year, for 20 years for the Rosemont mine, although in truth it would likely be 60 years, if the other nearby mines are example of how plans become extended. At 10% aquifer saturation that means they would have to drill down about 20,000 feet to be taking the water from just under their property, and find that amount of water all the way down. However, the aquifer is considered to be only about 1000 ft. deep, so that means they must take the water from at least a thousand acres in total aquifer exhaustion. They hope that they can get away with this irreversible ecosystem damage if they purchase CAP water put into the other side of Tucson, the downstream side.
The Arizona Groundwater Code is a concoction which is the very opposite of the sustainable. A "developer", has to "guarantee" a 100 supply of groundwater whenever he sells a dwelling. The State signs on to it, and everybody can get rich with a growth which is to keep going until that very last day, in which the withdrawal of water is to suddenly be no more. From maximum to nothing in one day? No, like the peaking of oil, the maximum rate of withdrawal, which is what is important, will come about halfway through what can be finally exhausted in terms of time and volume. That means 100 years becomes 50, minus the time since its inception of almost 30 years ago, and that is compounded by the dependence upon CAP water that cannot now be assured with climate change. The "developers" cannot truly guarantee water even for as long as it will take to pay off the mortgages!
Augusta Resources Corporation made an expected "Motion to Dismiss; Alternatively, Motion for More Definite Statement in Compliance with the Rules of Pleading" (.pdf) to be held in an oral hearing to which I preemptively answered in writing....
“By virtue of the unsustainable nature of present groundwater extraction in the Santa Cruz Valley and the ubiquitous condition of overshoot1, plaintiff requests that Augusta Resources be halted in its current preparations to withdraw water from the aquifer, a potential demand that could be met entirely and directly from recharging CAP water with reasonable ingenuity and at an internalized cost more just than a drawdown of our common native aquifer and consequent degradation of physical2, as opposed to phantom3, carrying capacity, i.e. adverse impact upon the water supply of Farmers Investment Company.”
The legal precedent of greatest import to the plaintiff’s request is that of Farmers Investment Company vs. Anamax Mining Company, in which significant damages were conceded to that plaintiff for adverse impact upon its water supply as caused through groundwater extraction by that defendant’s adjacent mining operation. That case was argued on the basis of prior right, a foundation which remains in standing.
Prior right is a legal perception that evolved with the growth phase of civilization, corresponding to seemingly infinite supplies of petroleum fuel which favored competition and social benefit through rewarding victory to the swiftest. The preponderance of evidence now argues for a present reality categorically and diametrically different, even if the general consciousness and the legal system yet embrace the impetus of that past. Our society can no longer rely on faith in a disjointed incrementalism of political adherence to laissez faire economics; we can no longer expect the future to come beneficently toward us simply because we await it. We must begin to see ahead and gropingly design our future upon the systems principles of the emerging paradigm, ecology; seeking an optimization of now declining empower4 through novel and cooperative social efficiency in relation to nature.
Thus, the question is whether the defendant should be allowed to wantonly trespass into a dimension of ecological desecration. The damages that can be foreseen, at least from the publicized depiction of intentions, are herein alleged to be far more severe and the extenuating circumstances more arrayed against defendant than that of the precedent case. Plaintiff asserts that society is better served by considering the probable detriment of an action and anticipatorily impeding that action before those damages, including likely irreversible ecosystem damage, manifest. We can no longer afford the luxury of egregious waste of endeavor.
Furthermore, the fact that the defendant has herein been made aware of the legal jeopardy of its intended course of action will give grounds in the future for punitive damages and for shareholder remedy against management.
1Overshoot: (v.) to increase in (population) numbers so much that the habitat’s carrying capacity is exceeded by the ecological load, which must in time decrease accordingly; (n.) the condition of having exceeded for the time being the permanent carrying capacity of the habitat.
3Phantom Carrying Capacity: illusory or extremely precarious capacity of an environment to support a life form or a way of life; that portion of a population that cannot be permanently supported when temporarily available resources become unavailable.
4Available energy: Potential energy capable of doing work and being degraded in the process (exergy) (units: kilocalories, joules, etc.).
Useful energy: Available energy used to increase system production and efficiency.
Power: Useful energy flow per unit time.
emergy: Available energy of one kind previously required directly and indirectly to make a product or service (units: emjoules).
Empower: Emergy flow per unit time (units: emjoules per unit time).
Transformity: Emergy per unit available energy (units: emjoule per joule).
Solar emergy: Solar energy required directly and indirectly to make a product or service (units: solar emjoules).
Solar empower: Solar emergy flow per unit time (units: solar emjoules per unit time).
Solar transformity: Solar emergy per unit available energy (units: solar emjoules per joule).
[Understanding that terminology and concepts herein employed may be unfamiliar, access to further explanatory effort deemed inappropriate for this document is offered, subject to ongoing modification, by internet through http://greatchange.org/crib_sheet.html .]
In the lower court, the case was quickly thrownout on the statement of the defendant, Augusta Resources, that it was indicipherable, that there were no legal claims stated. The defendant and the court committed an act of negligence, not reading the above memorandum down to the last line, which gave access to a crib sheet elucidating the usage of the unfamiliar ecological terminology. Such an act of negligence if material to the process of decision, should be procedural error. In Mexico, such error would be called "Falta de Exhaustividad" or lack of thoroughness. Legal right to injunction can be inferred as proper remedy before the damages to an aquifer are expressed, Jarvis vs. Arizona State Land Department. Only not having bothered to sufficiently study the complaint would have allowed this defendant to fail to perceive my standing, as a shareholder of Farmers Investment Co. (Their appeal answer claims even that is not enough! Corporations of course only want to have to deal with corporations. Maybe if I am a creditor with the greater part of my assets dependant upon the continued prosperity of Farmer's Investment Company?)
The other defendant, Phelps-Dodge, managed to get their case thrown out completely Ex Parte, with neither a word spoken nor written in confrontation with the plaintiff. This too, I believe should be considerable as procedural error.
The entire process of dismissal is not surprising, considering the human quality of the court whose second language is English, and the formidable nature of my language, especially when the explanatory efforts are not embraced.
Specialist versus generalist.
Process of Appeal: Court of Appeals, State of Arizona, Division Two, Case # 2 CA-CV 2008-008
Text of Appellant Opening Brief below:
Citations, pp. 2 & 3
Statement of the Case, pp. 4 & 5
Statement of Facts, pp. 6-12
Statement of the Issues, p. 13
Argument, pp. 14-27
Conclusion, p. 28
Appendix List, pp. 29 & 30
Arizona Administrative Code, Title 18, Ch. 11, R18-11-405 (supp. 92-3); page 17
Arizona Environmental Law Manual §4.2.9; page 15
Arizona Revised Statutes §27-975; page 19
Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d 173; page 21
Dodge v. Ford Motor Company, 204 Mich. 459; 170 N.W. 668; page 24
Environment, Power, and Society, Howard T. Odum; page 28
Farmers Investment Company v. Anamax Mining Company; 113 Ariz. 520; 558 P.2d 14; page 9 & 11
Findlay v. Lewis, 171 Ariz. 454, 831 P.2d 830; page 8
Howard v. Perrin, 8 Ariz. 347, 76 P. 460; page 21
Jarvis v. State Land Department, City of Tucson; 104 Ariz. 527; 456 P.2d 385; page 21
Jarvis v. State Land Department, City of Tucson, 113 Ariz. 230; 550 P.2d 227; page 21
Maricopa County Municipal Water Dist. et. al. v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369, rehearing denied, 39 Ariz. 367,7 P 2d 254; page 21
McKenzie v. Moore, 20 Ariz. 1, 176 P. 568; page 21
Memorandum, Director’s Office, Regional Flood Control District, August 27, 2007; page 26
Pima County Bar Association, Civil 11 (2005); page 14
State ex el. Morrison v. Amway, 87 Ariz. 206, 349 P. 2d 774; page 21
U.S.C.A. Const. Amend 6; page 8
United States v. Phelps Dodge, 391 F. Supp. 1181 (1975); No. CR 74-776-TUC-WCF; pages 16 & 19
Webster’s Third New International Dictionary; page 8
Statement of the case
This is a pro se action on behalf of the Upper Santa Cruz Valley ecosystem for the benefit of that ecosystem, and as an individual with standing I am also injured and at risk by the inaction and intended action of the respective defendants, Phelps Dodge Mining Company and Augusta Resources Corporation.
The appellate court has jurisdiction as the alleged damages and threatened damages occur in the County of Pima, State of Arizona; this issue having been initially treated at the Superior Court level.
I seek remedy for a spreading of pollution caused by negligence of Phelps Dodge that has resulted in diminishment of of my domestic water supply and encroachment upon the water supply of my shared agricultural enterprise; I seek injunctive relief against Augusta Resources in its preparations that will devastate said enterprise.
The proceedings in the lower court were one of an oral petition for dismissal filed by Augusta Resources, the result of which was the ordering thereof for Augusta Resources and ex parte for Phelps Dodge.
Statement of facts
Defendant, Augusta Resources, asked for dismissal based upon three points: “totally indecipherable”, “don’t know what factual claims are being supported” and “standing to bring suit”: page 3 & 4 Transcript; (Appendix T).
As to the first point of indecipherability, the defendant did not bother to read to the bottom of my memorandum, as his testimony to lack of knowledge as to the whereabouts of the crib sheet indicated: page 5 & 6 Transcript. These last lines of the Plaintiff’s Memorandum are indisputably a reference to a crib sheet: page 4, lines 12-14; (Appendix P):
[Understanding that terminology and concepts herein employed may be unfamiliar, access to further explanatory effort deemed inappropriate for this document is offered, subject to ongoing modification, by internet access through http://greatchange.ortg/crib_sheet.html.] Appendix #1
Here, the usage of the novel terminology that forms the basis for understanding the present social reality in terms of the emerging ecological paradigm is substantially illustrated, as evidenced as Appendix #2-14. It was clearly of a volume which might rightly be presumed best left out of the text of a memorandum in opposition to dismissal, particularly when the entire treatment consists also of multimedia and hyperlinked presentation accessible only through the internet. Thus, the best possible manner of removing the quality of indecipherability of the text was clearly presented in accordance with the Rules of Evidence in relation to “Review of Notes” through access to an electronic crib sheet.
On page 7 of the Transcript that has been corrected to the actual words spoken, the court evidenced a lack of comprehension of the concept of “carrying capacity”, which was both defined in the Plaintiff’s Memorandum, page 3, lines 12-14, and was fully accessible through the internet linkage, at Plaintiff’s Memorandum, aforementioned page 4, lines 12-14. This means the court either had no interest in comprehending the terminology, or that it failed to proceed to the definitions as well as to the bottom of the memorandum, the latter which would account for the court’s apparent acceptance of the defendant’s ignorance of the whereabouts of the crib sheet, as corresponding to its absence, wrongfully.
It has not been clear to me in my efforts to comprehend the meaning of “claim” if such can be liberated from a historical content of remedy for damages suffered – whether a “claim” can mean a right to injunctive relief before the damage occurs. This closest definition is from Webster’s Third New International Dictionary: “1 (2) a demand of a right or supposed right (Holland withdrew her claim to the annexation of a German territory). “ Certainly the argument of the Defendant was as if a claim had to be based upon damages experienced: page 6, Transcript, “I don’t know of any rule of law that would allow Mr. Morningthunder’s complaint to proceed against Augusta for conduct that may occur but hasn’t occurred at this point” and page 2 & 3, Motion to Dismiss, (Appendix M) My usage of the phrase “valid legal objective” instead of “claim” was an effort to accommodate this lack of clarity, Plaintiff’s Memorandum, page 1, line 15-16.
If the court had extended an effort to comprehend my pleading in light of U.S.C.A. Const. Amend. 6, 1 as I hope it will do throughout this appeal, it would have perceived that a request that the defendant “be halted in its current preparations to withdraw water from the aquifer” is clearly a cry for injunctive relief: page 6, lines 12-13, Complaint and page 1, line 20, Plaintiff’s Memorandum. I shied away from the word injunction in that I wrongly believed that I would unconditionally have to post a substantial bond, which I thought would likely have been beyond my financial means.
I tried to establish my own grounds for the right to injunctive relief through the introduction and explication of the concept of overshoot, carrying capacity, and phantom carrying capacity (Appendix #2 & 3). I maintain that the full comprehension of this ecological reality and the ramifications thereof, alone has any possibility of giving us the tools for guidance in this era which now begins to unfold so categorically different from anything experienced in human evolution –“… shrinking carrying capacity may soon become the single most important issue confronting humanity.” (Appendix #4) Being tasked with the accumulation of this argument and convinced of its overriding importance, including related attendance at the national conference of the Association for the Study of Peak Oil, I did not yet then turn to the detailed study of case history, which affirms that the right to prevent foreseeable aquifer damage cannot be met simply through claims for equity, Farmers Investment Company v. Anamax Mining Company, 113 Ariz. 520, 558 P.2d 14, at page 526.
That was the case to which my Plaintiff’s Memorandum referred, page 2, lines 2 & 3. The law had manifested itself to be as intelligent as I did struggle to evoke, in page 5, Transcript, “And I think the court has the right and the need to determine an ecological disaster before it’s committed and to prevent it, because we do not have the time to be foolish and make mistakes on top of mistakes.”
As to my standing before the court, granting that injunctive relief was a potential remedy, this was patently clear from the affirmation on page 4, line 14, of the Complaint (Appendix C) of being “a shareholder of Farmer’s Investment Company”, and the emphasized reference to “adverse impact upon the water supply of Farmer’s Investment Company”, page 1, line 23 & 24. Plaintiff’s Memorandum. This constituted a well pleaded fact with subsequent reference to the above Farmer’s Investment Company v. Anamax Mining Company, page 2, lines 2 & 3, Plaintiff’s Memorandum, and the following emphasized portion from Plaintiff’s Memorandum, page 2, lines 20-22. “The damages that can be foreseen, at least from the publicized depiction of intentions, are herein alleged to be far more severe and the extenuating circumstances more arrayed against defendant than that of the precedent case.2
Two themes of the hearing influenced my argument. The first was the early and disconcerting perception that neither the defendant -- delighted to find a pretext for dismissal-- nor apparently the court had bothered to discover the main body of my argument for injunctive relief and for the greater case, through the negligent act of refusing to read all of three pages of text in the Plaintiff’s Memorandum. The second theme, this being my first time of any magnitude before an attorney for defendant, was a lack of cognizance that the opposing party might argue from a posture of presumable dissimulation, portraying ignorance as a valid cause for dismissal, relying on my inexperience to partially fail in countering his argument.
While the court is presumed to be honest, it must be acknowledged as being human. I recognize that my language can require some effort to comprehend because it is of an unusual quality assuming command of the language, and becomes even more difficult when there is unfamiliar terminology that remains so due to the unwillingness of the court to fully proceed. This difficulty was profoundly complicated by the fact that English was not the first language of the court, yet I was compelled to speak primarily in English and could have communicated fluently in Spanish.
The process of dismissal achieved by Phelps Dodge is entirely off the record, with no moment of open court involving both parties, with no written answer or pleading for dismissal. It would have had to unjustly rely upon the supposition of “indecipherability”, for the allegations are undoubtedly in the nature of a valid claim: “thus enabling a most unnatural and fast vector of the pollutions under custodianship into the common aquifer”: page 2, line 19-20, Complaint, and “Plaintiff alleges that by defendant’s dereliction of duty a necessary good for the continuation of his life has been degraded, and remains under prospect of further degradation”, page 3, line 1-3, Complaint.
Statement of the issues
Baseless and clever obtention of dismissal leaves the fundamental need for adjudication unachieved. Pollutionhas been caused by the inaction of Phelps Dodge continues to spread and Augusta resources postures intent devoid of any concern for the integrity of the ecosystem aquifer. The very concept of sustainability is assailed from all sides, and the foundation of the Arizona Groundwater Code is grievously flawed.
The court is called upon to further the Civil commons, and while it might rightly judge me as questionably sufficient in knowledge of law and procedure, that is counterbalanced in that the court will likely have to reach toward my comprehension of exponential resource depletion and the ecological verities within this suddenly finite world.
Attorney for Phelps Dodge has not complied with the requisite stated in the Summons. 2005 PCBA Civil 11:
The cases against the two defendants are related in that resolutions are sought as an integral furthering of human relation with the ecosystem, but they are also separate, such that the dismissal of one side brings no logical dismissal to the other. As the record shows, Phelps Dodge went from being granted a request for extension of time to reply, to dismissal, without a word to me written or spoken in answer.
While certainly adroit, such a maneuver can only be considered contrary to the decades of evolution of pretrial procedure, in which open confrontation is pursued rather than surprise tactics, all in the furtherance of the deliverance of justice. With absolute invisibility of record in Phelps Dodge’s acquisition of dismissal, procedural error must be conceded, if not acceptance of my averments.
I bring suit against Phelps Dodge under common law for gross negligence as stated on page 2, lines 14-21, Complaint. I affirm this right without need to first pass through obtention of an abatement order through administrative procedure3, which has in this case clearly been acquiescent to Phelps Dodge as evidenced by the more than a decade since the negligence commenced, and which would only serve Phelps Dodge in effort to shield itself from liability beyond the actual damages – exemplary punitive damages being the only way it can be convinced to henceforth remedy its behavior before an ecosystem is significantly degraded.
There can be no doubt that a water filled mining pit which extends 1000 ft below the static water table violates A.R.S. §49-243 (G) by which an Aquifer Protection Permit is authorized.
In United States v. Phelps Dodge, 391 F. Supp. 1181 (1975), at page 1187, the pretext for dismissal based upon vagueness of definition of those waters which must be protected from pollution, was denied.
Phelps Dodge has no means of distancing itself from the affected aquifer.
In the narrative aquifer water quality standards adopted before abandonment of the Twin Buttes mine to the elements, effective August 14, 1992 Arizona Administrative Code Title 18, Ch 11; R18-11-405 (supp. 92-3):
The destruction of two of my community drinking water wells due to the inaction of Phelps Dodge attests to violation of the above standards.
From A.R.S. 49-244:
Monitoring wells have been established approximately 3 miles from the pollutant management area, encompassing my house by more than two blocks, and beyond where the two wells have been destroyed. The very concept of such qualifying for a point of compliance is farcical when the rate of injection of pollution into the aquifer remains unmodified – the spreading can only continue. The monitoring of its pollution by Phelps Dodge constitutes points of conscious noncompliance.
It is worth noting in United States v. Phelps Dodge Corporation, 391 F. Supp. 1181 (1975), at page 1187-8:
With knowledge of the wantonness of its decision to leave abandoned the Twin Buttes mine, Phelps Dodge chooses to socialize the costs and to privatize the profits. Its neglect of duty we now reap as social cost.
The only defense the defendant can possibly muster comes from A.R.S. §27- 975 :
What is paramount is the cost when the reclamation is not performed. A spreading of pollution that destroys wells to be eventually limited only by the natural process of soil and wind behavior canl continue longer into the future than civilization has existed, far beyond any willingness to hold at with efforts of mitigation.
The assumed feasibility of unreclaimed open pit mining is herein challenged. For the only true abatement of pollution is when the rainfall as concentrated by the surrounding ground elevations is equivalent to the evapotranspiration of the pit ground area in which the concentration occurs. Anything less is on a gradient between that and this extreme example of Twin Buttes, with its deep penetration into the water table.
Augusta Resources has completed drilling a test well on 53 acres with announced intention to withdraw 5000 acre feet of water per year for 20 years, a rate of pumping which would completely exhaust the aquifer volume under just their land the first year. For Augusta Resources to brazenly assume that it can withdraw all of the water that can be extracted from an underground aquifer far greater than its landholding to be distantly transported, with extreme damage to all surrounding parties, it must overturn what has been the determining design of water usage in the Santa Cruz Valley: Jarvis v. State Land Department, City of Tucson; 104 Ariz. 527; 456 P.2D 385.
And from the second Jarvis v. Arizona Land Department, City of Tucson 113 Ariz. 230: 550 P.2d 227:
This has resulted in the mines of the Upper Santa Cruz Valley and the City of Tucson having to retire agricultural lands in order to appropriate consumptive use amounts thereupon. The land purchased by Augusta Resources adjacent to my shared pecan orchard would legally allow 35 g.p.m. to be withdrawn, compared to their intent of 90 times that amount.
Augusta Resources will have to put forth argument based upon A.R.S. 45-514.
The difference between “where the operator’s wellhead or distribution system would otherwise be” in point 2 above, and access to CAP water may not in this case be unreasonably difficult to surmount, considering the approximately twenty five miles of pipeline route contemplated by Augusta Resources and the nearness of the Pima Mine CAP recharge site. Indeed, it may well be that Augusta Resources recognizes the ultimate futility of pretending that it can devastate other established aquifer users with complete impunity. In a backdoor approach as opposed to this current front door that society will be relieved to avoid, such could constitute the reason for its willingness to build an extension of the CAP pipeline to cross the Sahuarita road where the access to that water would be more commensurate with again A.R.S §45-514:
The above “cost comparable to groundwater” must take into consideration the cost to society, and not just the cost to Augusta Resources, which will always seek the lowest cost to itself regardless of the externalized cost to society, this being the very nature of a corporation by virtue of the terms of charter. Dodge v. Ford Motor Company, 204 Mich. 459; 170 N.W. 668.
When there is dispute over conflicting legal interpretation, it is opportune to introduce concepts hitherto unconsidered that bear forcefully upon the issue. Thus, the concept of carrying capacity, phantom carrying capacity, and overshoot (Appendix #2,3,4) are put forth as being paramount in any real comprehension of present reality – the imminence of petroleum and natural gas exhaustion in light of our utter dependence upon the rate of supply thereof (Appendix #9 & 10), which is the very measure of phantom carrying capacity. The avoidance of comprehending this terminology must therefore be considered procedural error.
Thus, the largely unperceived precariousness of civilization and the unappreciated worth of the ecological contribution combine to argue that defendant’s gross destruction of carrying capacity must be avoided, which leaves Augusta Resources with the option of directly using CAP water, one way or another, as nearby ASARCO mining is moving fully toward.
As Augusta Resources seeks permit for the Rosemont mine, there is contingent consideration associated with this suit in the portion against Phelps Dodge. That question is the design feasibility of the open pit mine, particularly when its abandonment without reclamation means intromission of pollutants into the aquifer by being deeper than the water table, this being the maximum measure of the possible gradient of potential pollution. Such appears to be the case of the mine sought to be permitted by Augusta Resources, with the lowering of a water table during mining that would upon abandonment refill the mine pit.
Society commonly makes the mistake of being unable to distinguish between a stock and a flow. In terms of an aquifer, the flow is that which enters from the rainfall and its aggregation. Extraction of the flow amount is sustainable. The aquifer also has a stock accumulated over many thousands of years that constitutes the water table level, which is the difference in energy cost of being able to pump the flow water from near the surface as opposed to the bottom of the aquifer. Drawdown of the water table on an annually adjusted basis is depletion of the stock, and it is by definition unsustainable. Furthermore, the exhaustion of this stock will follow a peaking of rate of supply far earlier than the removal of the last stock waters, and it is this reversal in rate of supply that will endanger the human infrastructure built upon it. We begin to see this now in the supply of oil, which becomes evermore less a supply when approximately half the total has been exhausted. (Appendix #9)
Nor can we wisely treat CAP water as a flow, for if it is withdrawn from us, we will if we wish to maintain the rate of supply be forced to withdraw the difference from our stock of water, again unsustainable. (Appendix W) The most intelligent use of CAP water is first a replenishment of stock, so that our energy costs of pumping decline.
Would that we were able to choose the intelligent, rather than move with blind faith that the short-term monetary accumulation of growth at any cost, is sufficient to carry us into this changing future of ecological scarcity. (Appendix #3 & 14)
I realize my complaint is more literary than the normal dry legal treatise and that it perhaps appears ambitious, but I maintain there is integrity in the whole that will manifest with sufficient consideration and that I do move with an inherent discernment of the just and the unjust. The issues are of utmost importance and that which was avoided by the defendant and the lower court needs to be taken seriously. I pray that the dismissals be overturned, and that the facts be deliberated in light of the presented argument.
Whether the case should be considered complex, and whether the Arizona Department of Water Resources should in the future be called forth to defend the inefficient usage in terms of potential energy of pumped groundwater and humanure, under the unsustainable condition of a declining water table level, I leave to the discretion of the court.6
Tab #1 crib_sheet.html, as of 1/5/2008, with links to the below numbered Tab entries, as well as to videos, full versions, and the entry, “Peaking of World Oil Production: Impacts, Mitigation, & Risk Management” by Robert Hirsch, which is referred to in Peak Oil Primer, but not included below.
Tab #2 Overshoot, page 244-54, 266 from the book Overshoot, by William R. Catton, Jr.
Tab #3 Carrying Capacity, page 175-85 from the book Ecology and the Politics of Scarcity Revisited; by William Ophuls & A. Stephan Boyan
Tab #4 Carrying Capacity, page 48-51 from the book Our Ecological Footprint; Reducing Human Impact on the Earth; by Mathis Wackernagel & William Rees
Tab #5 Laissez-Faire, page 218-22 from the book Ecology and the Politics of Scarcity Revisited; by William Ophuls & A. Stephan Boyan
Tab #6 Design, page 288-9 from the book Ecology and the Politics of Scarcity Revisited; by William Ophuls & A. Stephan Boyan
Tab #7 Systems Principles, Emergy, and Empower, page 280-6 from the book A Prosperous Way Down: Principles and Practices; by Howard T. Odum & Elisabeth C. Odum
Tab #8 Disjointed Incrementalism, page 237-246 from the book Ecology and the Politics of Scarcity Revisited; by William Ophuls & A. Stephan Boyan
Tab #9 Peak Oil Primer, web page from Energybulletin.net
Tab #10 Crude Oil: Uncertainty about Future Oil Supply Makes It Important to Develop a Strategy for Addressing a Peak and Decline in Oil Production. Title and Highlights page of GAO report.
Tab #11 One essential complement is ecological tax reform…, page 142-147 from the book Our Ecological Footprint; Reducing Human Impact on the Earth; by Mathis Wackernagel & William Rees
Tab #12 The Mineral Economy: How Prices and Costs Can Falsely Signal Decreasing Scarcity, Selected Pages from the article by Douglas B. Reynolds, main points in bold
Tab #13 The Need to Reintegrate the Natural Sciences with Economics, selected pages from the article by Charles A. S. Hall et. al.
Tab #14 Guidelines for Orderly Descent, page 205-7 from the book A Prosperous Way Down: Principles and Practices; by Howard T. Odum & Elisabeth C. Odum
Tab T Transcript, certified
Tab P Plaintiff’s Memorandum
Tab M Motion to Dismiss, filed by Augusta Resources Corporation
Tab C Complaint, modified from the original with the incorporation of line numbering and the correction of Augusta Resources, Inc. to Augusta Resources Corporation
Tab W West's 2 major reservoir's imperilled, scientist's warn. Arizona Daily Star Staff and Wire Reports
Certificates of Compliance and Service
Answering Brief of Appellees Phelps Dodge Mining Company and FreePort-McMoran Copper & Gold. Inc. (.pdf) Two names for the same one defendant.
Answering Brief of Appellee Augusta Resources Corporation (.pdf)
Appellants Closing Reply Brief May 08, 2008
It can be held that this lack of opportunity was material to the outcome of the trial, and therefore, procedural error.
The above closing argument claiming procedural error against the court system concludes that such shoddiness did exist. Furthermore, counsel for Phelps Dodge has behaved in a manner that is indistinguishable from Ex Parte; counsel for Augusta Resource and determination of the lower court hastily retreated before the extent and the unfamiliar of a central part of my argument, as evidenced by failure to encompass three pages of memorandum.
But beyond this congeries of causes each held to be alone sufficient for reversal of dismissal, the court must consider whether proceedings are likely to be reasonable use of its limited resources. This case in its entirety reaches toward an importance at the State level without parallel in this new century. The doubt of course is whether the pro se plaintiff will be able to successfully argue the case, with his lack of procedural knowledge and courtroom experience, his style of writing and presentation so distinct from the dry and common.
From the limits of my knowledge of procedure, I have found argument that material error was committed by all other parties: counselors for the defendants, court, and court system. I believe I have made good case in my appellant opening brief for the plausibility of valid claims --assiduously avoided by opposing counsel: the persistent violation of statutory law by Phelps Dodge; the pretension by Augusta Resource to impunity categorically greater than that enjoyed by the City of Tucson; all to leave the Santa Cruz Valley ecosystem aquifer in rout.
I am prepared to clarify issues foreshadowed but not yet fully before the court, such as, Standing, Alleged Facts Allegedly Relevant to the Case, Wanton, Frivolous, Incomprehensible, and Ex Parte.
"In these days when our present momentums have brought us to the edge of the abyss and threaten to impel us to the bottom thereof, we must each become like Don Quixote de La Mancha. We must lash out at the dragons that others perceive as windmills, and go forth even if we be poorly armed and our steed most feeble."
Naturally, the appeal was denied. The court did not want to open such a can of worms, just short of wanting a constitutional amendment.