Tag Archives: settlement

Shielded Native American sites thrust into debate over dams

A little-known federal program that avoids publicizing its accomplishments to protect from looters the thousands of Native American sites it’s tasked with managing has been caught up in a big net.

The Federal Columbia River System Cultural Resources Program tracks some 4,000 historical sites that also include homesteads and missions in Oregon, Washington, Idaho and Montana.

Now it’s contributing information as authorities prepare a court-ordered environmental impact statement concerning struggling salmon and the operation of 14 federal dams in the Columbia River Basin.

A federal judge urged officials to consider breaching four of those dams on the Snake River.

“Because of the scale of the EIS, there’s no practical way for us, even if we wanted to, to provide a map of each and every site that we consider,” said Sean Hess, the U.S. Bureau of Reclamation’s Pacific Northwest Region archaeologist. “There are some important sites out there that we don’t talk about a lot because of concerns about what would happen because of vandalism.”

Fish survival, hydropower, irrigation and navigation get the most attention and will be components in the environmental review due out in 2021. But at more than a dozen public meetings in the four states to collect feedback, the cultural resources program has equal billing. Comments are being accepted through Jan. 17.

The review process is being conducted under the National Environmental Policy Act, or NEPA, an umbrella law that covers the well-known Endangered Species Act. Thirteen species of salmon and steelhead on the Columbia and Snake rivers have been listed as federally protected species over the past 25 years.

But NEPA also requires equal weight be given to other laws, including the National Historic Preservation Act, which is where the cultural resources program comes in. Among the 4,000 sites are fishing and hunting processing areas, ancestral village areas and tribal corridors.

“People were very mobile, prehistorically,” said Kristen Martine, Cultural Recourse Program manager for the Bonneville Power Administration.

Some of the most notable sites with human activity date back thousands of years and are underwater behind dams on the Columbia and Snake rivers. Celilo Falls, a dipnet fishery for thousands of years, is behind The Dalles Dam on the Columbia River. Marmes Rockshelter was occupied 10,000 years ago but now is underwater behind Lower Monumental Dam on the Snake River.

“If we’re breaching dams, it would definitely change how we manage resources,” said Gail Celmer, an archaeologist with the U.S. Army Corps of Engineers.

U.S. District Judge Michael H. Simon ordered the environmental review in May after finding that a massive habitat restoration effort to offset the damage that dams in the Columbia River Basin pose to Northwest salmon runs was failing.

Salmon and steelhead runs are a fraction of what they were before modern settlement. Of the salmon and steelhead that now return to spawn each year, experts say, about 70 to 90 percent originate in hatcheries.

Those opposed to breaching the Snake River dams to restore salmon runs say the dams are an important part of the regional economy, providing irrigation, hydropower and shipping benefits.

Meanwhile, several tribes said they are better able to take part in the review process than they once were.

“Tribes have not had much opportunity to participate in these things because they didn’t have professional staff or trained people,” said Guy Moura of the Colville Confederated Tribes in Washington state, noting the tribe employed four people in its cultural resources program in 1992 but now has 38. “With growth in size, there also came the evolution of what was being done.”

The tribe at one time had a large fishery at Kettle Falls, on the upper part of the Columbia River, but it was inundated in the 1940s behind Grand Coulee Dam. Dams farther downstream on the Columbia prevent salmon from reaching the area.

Also among the 4,000 historical sites is Bonneville Dam, one of 14 dams involved in the environmental impact statement. Bonneville Dam is the lowest dam in the system at about 145 miles from the mouth of the Columbia River. It started operating in the 1930s and became a National Historic Landmark in 1987.

Wisconsin pays $300,000 to youth prison inmate in settlement

The Department of Corrections has agreed to pay $300,000 to an inmate at Wisconsin’s troubled youth prison who waited nearly two hours for a nurse after a guard smashed his toes in a door, according to a settlement agreement.

The state acknowledged no fault in the September settlement agreement, which was released Friday, the Milwaukee Journal Sentinel reported.

While transferring a teenage inmate to a new cell in November 2015, a guard shoved the inmate into the room and slammed the door, catching the teen’s foot against the jamb.

Records show it took an hour and 45 minutes for a nurse to arrive at the cell and even longer for him to get transferred to a medical facility.

The incident occurred at the Lincoln Hills School for Boys in Irma, about 30 miles north of Wausau.

Lincoln Hills and the adjacent Copper Lake School for Girls are under federal investigation into allegations of physical abuse, sexual assault and misconduct.

The incident happened near the end of a 16-hour shift when the guard’s unit was short on staff. The guard was placed on paid leave and then resigned a short time later.

Video of the incident exists, but the department isn’t releasing it because of laws that protect information about juveniles that are incarcerated.

Department of Corrections spokesman Tristan Cook said the state has since altered rules on medical responses, provided better training for staff about using force and added body cameras.

“This is going to keep happening if they don’t make some real changes,” said state Rep. Mandela Barnes, D-Milwaukee. “Nothing is shocking at this point.”

Harley-Davidson to pay $12 million fine over emissions

Harley-Davidson will also pay a $12 million civil penalty and spend $3 million to mitigate air pollution through a project to replace conventional woodstoves with cleaner-burning stoves in local communities, the Justice Department announced on Aug. 18.

Justice and the U.S. Environmental Protection Agency announced a settlement with Harley-Davidson and related companies that requires the companies to stop selling and to buy back and destroy illegal devices that increase air pollution from their motorcycles.

The agreement requires the companies to sell only models of these devices that are certified to meet Clean Air Act emissions standards.

The government’s complaint was filed with the settlement. It alleges that Harley-Davidson manufactured and sold about 340,000 illegal devices, known as “super tuners,” that, once installed, caused motorcycles to emit higher amounts of certain air pollutants than what the company certified to EPA.

Aftermarket defeat devices like “super tuners” alter a motor vehicle’s emissions controls and are prohibited under the Clean Air Act for use on vehicles that have been certified to meet EPA emissions standards.

The government said Harley-Davidson also made and sold more than 12,000 motorcycles that were not covered by an EPA certification that ensures a vehicle meets federal clean air standards.

“Given Harley-Davidson’s prominence in the industry, this is a very significant step toward our goal of stopping the sale of illegal aftermarket defeat devices that cause harmful pollution on our roads and in our communities,” said Assistant Attorney General John C. Cruden, head of the Justice Department’s Environment and Natural Resources Division. “Anyone else who manufactures, sells, or installs these types of illegal products should take heed of Harley-Davidson’s corrective actions and immediately stop violating the law.”

“This settlement immediately stops the sale of illegal aftermarket defeat devices used on public roads that threaten the air we breathe,” added Assistant Administrator Cynthia Giles of EPA’s Office of Enforcement and Compliance Assurance. “Harley-Davidson is taking important steps to buy back the ‘super tuners’ from their dealers and destroy them, while funding projects to mitigate the pollution they caused.”

Since January 2008, Harley-Davidson has manufactured and sold two types of tuners, which when hooked up to Harley-Davidson motorcycles, allow users to modify certain aspects of a motorcycles’ emissions control system.

These modified settings increase power and performance, but also increase the motorcycles’ emissions of hydrocarbons and nitrogen oxides (NOx).  These tuners have been sold at Harley-Davidson dealerships across the country.

The Clean Air Act requires motor vehicle manufacturers to certify to EPA that their vehicles will meet applicable federal emissions standards to control air pollution and every motor vehicle sold in the U.S. must be covered by an EPA-issued certificate of conformity.

The Clean Air Act prohibits manufacturers from making and selling devices that bypass, defeat or render inoperative a motor vehicle’s EPA-certified emissions control system.

The act also prohibits any person from removing or rendering inoperative a motor vehicle’s certified emissions control system and from causing such tampering.

The complaint alleges violations of both those provisions.

The settlement details

Under the settlement, Harley-Davidson will stop selling the illegal aftermarket defeat devices in the United States by Aug. 23.

Harley-Davidson also offer to buy back all such tuners in stock at Harley-Davidson dealerships across the country and destroy them.

The settlement requires the company to obtain a certification from the California Air Resources Board for any tuners it sells in the United States in the future.

The CARB certification will demonstrate that the CARB-certified tuners do not cause Harley-Davidson’s motorcycles to exceed the EPA-certified emissions limits.

Harley-Davidson also will conduct tests on motorcycles that have been tuned with the CARB-certified tuners and provide the results to EPA to ensure that its motorcycles remain in compliance with EPA emissions requirements.

In addition, for any super tuners that Harley-Davidson sells outside the United States in the future, it must label them as not for use in the United States.

The announcement of the settlement said the EPA discovered the violations through a routine inspection and information Harley-Davidson submitted after subsequent agency information requests.


On the web

The settlement, a proposed consent decree lodged in the U.S. District Court for the District of Columbia, is subject to a 30-day public comment period before it can be entered by the court as final judgment.

To view the consent decree or to submit a comment, visit the department’s website: www.justice.gov/enrd/Consent_Decrees.html.

Settlement reached over mercury from coal plant

Clean Wisconsin, Sierra Club, Wisconsin Department of Natural Resources and Wisconsin Public Service announced March 21 a settlement in a legal dispute over how much mercury can be emitted from a coal-fired power plant in Rothschild.

“The Weston coal plant emits toxic pollution, including mercury, which can cause neurological and developmental problems, especially in children,” Elizabeth Wheeler, senior staff attorney at Clean Wisconsin, said in a news release issued March 21. “It’s critical that a protective mercury limit is in place for Weston 4 to protect public health.”

Wisconsin law requires that newer coal-fired power plants such as Weston 4  limit mercury emissions to the maximum degree achievable. Testing of Weston 4’s equipment showed the plant could reduce mercury to 0.8 pounds per trillion British thermal units (lbs/tBTU), but WPS contested the limit, hoping for a far less stringent requirement.

Wheeler said, “Given all its health impacts, weak mercury limitations are not an option. While it has been a long road to this agreement, today’s settlement upholds the DNR’s more stringent limit.”

Mercury is a neurotoxin that can affect the brain, liver and kidneys and cause developmental disorders in children.

The EPA estimates more than 10,000 children born each year in Wisconsin are prenatally exposed to elevated levels of mercury, an exposure that puts them at risk of having lower IQs and reduced memory.

Also, according to Clean Wisconsin, every inland body of water in Wisconsin is under a fish consumption advisory due to mercury pollution.

“We support the DNR’s efforts to maintain protective permit limits,” Wheeler said. “Coal plants are Wisconsin’s No. 1 source of mercury pollution, and until they can be replaced with clean energy sources, their toxic emissions must be controlled.”

More about mercury & coal

Clean Wisconsin’s Enviropedia.

Settlement drives reform at women’s prison

Wisconsin has satisfied the terms of a settlement requiring reforms in medical and mental health care at the state’s largest women’s prison, clearing the way to an end to a longstanding class-action lawsuit.

Flynn v. Walker was filed in 2006 on behalf of women prisoners at Taycheedah Correctional Institution, according to the ACLU of Wisconsin.

The lawsuit alleged the prison system put the lives of women prisoners at risk by providing women with grossly deficient mental health treatment — far inferior to that provided to men in Wisconsin prisons.

Also alleged was that the prison system failed to provide reasonable accommodations to allow prisoners with disabilities to access basic prison services.

“After years of needless suffering due to inadequate health care, Taycheedah has the staff, services and facilities necessary to address prisoners’ medical and mental health needs, fulfilling its constitutional obligation to the women incarcerated there,” said Gabriel B. Eber, senior staff counsel with the ACLU National Prison Project.

Eber said the state has come into compliance, and the ACLU hopes “the reforms won under the settlement agreement will continue once the litigation is dismissed.”

Larry Dupuis, legal director for the ACLU of Wisconsin, said, “It was a long and sometimes contentious process, but Taycheedah has made good on its promises to deliver decent care to the women living at the institution. Of course, the impetus for the improvements at the prison was the litigation. But the medical leadership team has demonstrated a commitment to improving the quality of care that we expect them to maintain in the future.”

Wisconsin had sought to have the federal case dismissed, a motion denied by U.S. District Judge Rudolph T. Randa in 2009. Randa entered a preliminary injunction, ordering changes to how the prison administered medications to prisoners.

In 2010, a settlement required Wisconsin officials to implement significant structural improvements aimed at providing constitutionally adequate levels of care for all Taycheedah prisoners and providing female prisoners with the same level of mental health care as male prisoners. The settlement also required equal access to programs and services for prisoners with disabilities.

The agreement required the prison’s medical program meet “performance standards,” which would be verified by an independent expert.

The ACLU said an expert, after 11 visits to the prison over five years, certified that Taycheedah had met the targets.

— Lisa Neff

Wisconsin gun shop to pay $1 million to settle lawsuit

A Wisconsin gun shop will pay $1 million to settle a lawsuit in which a jury found it negligently sold a gun used to injure two Milwaukee police officers, the store’s attorney said.

The settlement eliminates what was expected to be a yearslong appeal of an October verdict in which jurors awarded Officer Bryan Norberg and former Officer Graham Kunisch nearly $6 million.

An attorney for Badger Guns, James Vogts, told the Milwaukee Journal Sentinel (http://bit.ly/1QaOzBU ) late Friday that the case has “been settled and dismissed.”

“This case is over,” Vogts said. He declined to say why his client decided not to appeal.

A jury found that found that Badger Guns and its owner negligently sold the gun to a straw buyer — someone buying a gun for someone who cannot legally purchase one. 

Kunisch and Norberg sued Badger Guns, its predecessor, Badger Outdoors, and the owners five years ago.

Out of the $1 million settlement, Kunisch, who has retired from the department on duty disability, will receive $216,120, while Norberg will receive $74,427. The rest is split up among the city, lawyers’ fees and other costs.

The officers’ attorney, Patrick Dunphy, didn’t respond to requests for comment Saturday.

A separate lawsuit, filed by two different Milwaukee officers also wounded with a gun from the shop, remains set for trial in May.

Norberg and Kunisch were both shot in the face after they stopped Julius Burton for riding his bike on the sidewalk in 2009. Investigators said Burton got the weapon, a Taurus .40-caliber handgun, a month earlier, after giving $40 to another man, Jacob Collins, to make the purchase at the store in West Milwaukee.

One bullet shattered eight of Norberg’s teeth, blew through his cheek and lodged into his shoulder. He remains on the force but said his wounds have made his work difficult. Kunisch was shot several times, resulting in him losing an eye and part of the frontal lobe of his brain. He said the wounds forced him to retire.

Jurors ordered the store to pay Norberg $1.5 million and Kunisch $3.6 million. The jury also ruled the store must pay $730,000 in punitive damages.

The gun shop’s attorneys denied wrongdoing. They said the owner at the time of the sale, Adam Allan, couldn’t be held financially responsible for crimes connected to a weapon sold at his shop and that the clerk who sold the weapon didn’t intentionally commit a crime. Rather, they said Collins and Burton went out of their way to deceive him.

The case was only the second of its kind nationwide to make it to a jury since Congress passed a law a decade ago holding gun dealers and manufacturers largely immune from such lawsuits. In the first, a jury found in favor of a gun store in Alaska.

Burton pleaded guilty to two counts of first-degree attempted intentional homicide and is serving an 80-year sentence. Collins got a two-year sentence after pleading guilty to making a straw purchase for an underage buyer.

Feds agree to seafood import rules aimed at protecting whales, dolphins

The U.S. government, in a recent settlement, agreed to adopt rules ensuring seafood imported into the country meets high standards for protecting whales and dolphins

The regulations will require foreign fisheries to meet the same marine mammal protection standards required of U.S. fishers or be denied import privileges — implementing a 40-year-old provision of the Marine Mammal Protection Act.

“The new regulations will force other countries to step up and meet U.S. conservation standards — saving hundreds of thousands of whales and dolphins from dying on hooks and in fishing nets around the world,” said Sarah Uhlemann, senior attorney and international program director of the Center for Biological Diversity. “The U.S. government has finally recognized that all seafood consumed in the United States must be ‘dolphin-safe.’ ”

More than 650,000 whales, dolphins and other marine mammals are caught and killed in fishing gear each year, according to the CBD. The animals are “bycatch” of commercial fisheries and either drown outright or are tossed overboard to die.

Despite U.S. efforts to protect marine mammals in its own waters, fishing gear continues to pose the most significant threat to whale and dolphin conservation worldwide.

For example, the vaquita, the world’s smallest porpoise, is being driven to extinction by shrimp gillnets in Mexico’s Gulf of California. Fewer than 100 vaquita remain.

Under U.S. law and the planned new regulations, shrimp from this region would be barred from entering the United States because it does not meet the more protective U.S. marine mammal protection standards. These standards may include modifying fishing gear and closing fishing in some areas to limit the risk of entanglement.

“It’s time to do what it takes to save thousands of whales and dolphins around the world and hold our fish imports to the same standards that we require of our U.S. fishermen,” said Zak Smith of the Natural Resources Defense Council. “This law will help do that. It provides real, enforceable protections for marine mammals and sets up an even playing field that allows our fishermen to be competitive in the U.S. market. If we’d had these standards 40 years ago, we wouldn’t be scrambling today to save the imperiled vaquita. Thankfully, if this law is implemented, other species won’t share their fate.”

Since 1972, the U.S. Marine Mammal Protection Act has prohibited the United States from allowing seafood to enter the country unless it meets U.S. whale and dolphin standards. Under today’s settlement, the federal government must make a final decision by August 2016 about how to implement this requirement and end unlawful imports. The rules will protect marine mammals and level the playing field for U.S. fishers.

“The public demands and the U.S. can — and by law, must — wield its tremendous purchasing power to save dolphins and whales from foreign fishing nets,” said Todd Steiner, biologist and executive director of Turtle Island Restoration Network. “We have the right to ensure that the seafood sold in the U.S. is caught in ways that minimize the death and injury of marine mammals.”

Americans consume some 5 billion pounds of seafood per year, including tuna, swordfish, shrimp and cod. About 90 percent of that seafood is imported and about half is wild-caught.

The settlement was in the U.S. Court of International Trade in New York on behalf of plaintiffs Center for Biological Diversity, Turtle Island Restoration Network and the Natural Resources Defense Council.

Settlement reached, no Jesus portrait in Ohio school

A middle school in Ohio will be forced to permanently remove a portrait of Jesus from its school grounds and pay nearly $100,000 after reaching a settlement with two groups, including the state chapter of the American Civil Liberties Union.

The settlement requires the Jackson City School District in southern Ohio to pay the ACLU and Wisconsin-based Freedom From Religion Foundation damages and legal fees totaling $95,000.

The two sides had a tentative agreement months ago that bogged down in more legal filings after the two groups said the school district continued to keep the Jesus portrait, and displayed it on the school lawn during a prayer meeting. Court filings show the portrait was also visible to those entering an art-storage area.

“All of this was unnecessary,” said James Hardiman, legal director for ACLU of Ohio. “The law is pretty clear … the display of this particular kind of religious artifact (in a public school) is unconstitutional.”

He said U.S. District Judge Algenon Marbley in Columbus accepted the settlement late last week.

Superintendent Phil Howard said in a statement that the district’s attorneys believed settling was the “best case scenario” at this point because legal fees were “mounting by the day.”

He said the district’s insurance will pay the nearly $95,000 and taxpayers will not be liable for the damages and legal fees.

Justice Department secures settlement in HIV discrimination cases

The Justice Department has secured a settlement with Barix Clinics under the U.S. Americans with Disabilities Act in an HIV discrimination case.

Barix Clinics operates bariatric treatment facilities in Michigan and Pennsylvania. The settlement resolves allegations that Barix Clinics violated the ADA by refusing or cancelling surgery for two people because they have HIV.

This settlement is the fifth that the Justice Department has reached this year addressing HIV discrimination by a medical provider.

The Justice Department, according to a release from the White House, found that Barix Clinics unlawfully refused to perform bariatric surgery on a man at its Langhorne, Pa., facility because he has HIV.

The department also determined that Barix Clinics cancelled bariatric surgery for another individual, Frank Hill, at its Ypsilanti, Mich., facility because he has HIV.

The department’s investigation revealed that Barix Clinics’ actions were not based on individual assessments of the patients or based on current medical knowledge.

“Erecting unnecessary barriers to medical care for people with HIV can further exacerbate their condition and their marginalization in society,” stated Jocelyn Samuels, acting assistant Attorney General for Civil Rights. “These are the barriers that the ADA and the Justice Department seek to tear down.”

“Blanket exclusions of patients with HIV are misguided and illegal,” added Barbara L. McQuade, the U.S. attorney for the Eastern District of Michigan. “Under the law, caregivers cannot withhold care unless the decision is based on current medical knowledge about the particular patient and condition, not on stereotypes about a disability.”

Barix Clinics must pay $20,000 to the first complainant, $15,000 to Hill and a $10,000 civil penalty.

In addition, Barix must train its staff on the ADA and develop and implement an anti-discrimination policy. 

In the past six months, the Justice Department has reached five settlement agreements with medical providers to address HIV discrimination. All five are part of the Department of Justice’s Barrier-Free Health Care Initiative, a partnership of the Civil Rights Division and U.S. Attorney’s offices.

Settlement reached in New Hampshire HIV bias case

A gay advocacy group says it has reached a settlement in a discrimination lawsuit it filed against a New Hampshire town that attempted to shut down a group home for people living with HIV, AIDS and hepatitis C.

Boston-based Gay & Lesbian Advocates & Defenders sued the town of Gilsum last year on behalf of AIDS Services for the Monadnock Region after the town refused to grant its group home – the Cleve Jones Wellness House – tax-exempt status and moved to seize its deed for non-payment.

Lawyers filed notice in Cheshire Superior Court last week that they had reached a settlement in the case. Details of the settlement will be filed with the court by Aug. 2.

“This case demonstrates that discrimination against people with HIV is hardly a relic of the past,” said attorney Bennett Klein, director of GLAD’s AIDS Law Project.

Attorney Gary Kinyon, who represents the town, did not immediately return calls seeking comment.

GLAD filed the lawsuit one year ago, after the AIDS Services organization filed its application for tax-exempt status several days late and the town denied it. Lawyers for GLAD say they determined that other nonprofits in town – including the Congregational Church and the American Legion – filed applications late or not at all yet retained their tax-exempt status.

The town agreed to take no action to have the deed transferred to it until the lawsuit was resolved.

The group home and town have had legal differences in the past, Klein said.

GLAD sued Gilsum in 2008 after the town put up roadblocks to Cleve Jones Wellness House operating on the site of a former group home for girls, according to Klein.

AIDS Services did not file an application in 2007 because its executive director mistakenly believed the tax exemption was automatic, not something that must be filed annually, the lawsuit said. It was filed one month late in 2008 and three days late in 2009.

The selectmen have the option of approving late applications for tax exemption.

The lawsuit sought a refund of the $11,559 in taxes and interest AIDS Services paid the town in 2010.

AIDS services for the Monadnock Region serves clients in Cheshire County and parts of Sullivan and Hillsborough counties. The group home – the first of its kind in the state – houses seven residents.