EPA-fouled Animas River: How to sue gov’t agencies and win using SCOTUS ruling

After the August 5, 2015 Gold King Mine toxic waste spill into the Animas River and downstream watercourses that was caused by EPA incompetence (or intention, depending on the perspective), there was some misunderstanding about how claims for damages should be handled. Russell Begaye, president of the Navajo nation, was strong in cautioning members to hold off submitting Standard Form 95 that EPA employees were distributing on the reservation. The assumption was that claimants must sign the form supplying a final amount for restitution that cannot be amended, barring all possibility of pursuing legal remedy should damage accrue over time. There are ways of dealing with the form that most of us wouldn’t consider but is a necessary component to assure restitution for egregious damage which effects are long-lived. Our legal researcher, Toddy Littman, explained the process that, if followed, is the best avenue to receive full remedy.

Toddy explained it this way, beginning with the point that Begaye, like most politicians and even attorneys, “… doesn’t understand the administrative process and is solely thinking of it in a civil rights law vein. “Procedures carry with them a notice and opportunity component irrespective of the content of the instrument. This is why, as an example:

1. you file a lawsuit;
2. the other party fails to respond in a timely manner;
3. you go to court to get your default judgment. As you enter the courtroom, you're served with a response, even though late.

The idea is you can't claim they didn't respond now in good conscience, and they'd have had it filed with the court so you can't get the judge to listen to you anyway. Or the lawyer for the other side shows up and then tries to serve you with their reply in open court as you stand to speak and say the words, "I am here for my default judgment." Or the attorney for the other side, and this happens often with bureaucrats, shows up with your envelope and claims, "Your Honor, I didn't receive notice of any such lawsuit. Sure I signed that postal delivery receipt but the envelope was empty," which is why you pay a little more for a proof of mailing where the postal clerk stamps it to indicate the envelope was not empty. “This notice and opportunity component supersedes the content if your intention of use in pursuing your remedy is a legal strategy of notice and opportunity as the agency knew or should have known to reply, get an extension, grant a hearing, or deny your claim in a timely manner, which, thereof upon proof of their receipt of it, long before you filed a lawsuit, is notice and opportunity and their failure to respond in a timely manner (nihil dicit) is a waiver of sovereign immunity. “If the case is about the specific content and pursuing a lawsuit for damages alone, some civil rights claim, not having read Begaye’s comments, the normal course gives concern that what is claimed on the SF-95 cannot be expanded upon. In this situation with the river spill and EPA, the long-term effects are unknown. Thus, one would have to include environmental impact studies (which most people wouldn't have had completed within the week this spill has been going on) that are comprehensive enough to be inclusive of all potential future damages, which are the EPA's liability. He's well aware, I figure, that their [EPA’s] attorney will come into court claiming limited liability if they try to amend the complaint to include later damages that are unknown at this time, and thereby those would be excluded from the lawsuit if they weren't mentioned in the SF-95.

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There are 1000's of individuals who have suffered loss at the hands of government agencies. They have been beaten into believing that there is no recourse other than accepting whatever the behemoth administration dispenses

“So there you have what I'd get into, that the point of it is to be comprehensive, to include environmental impact studies as soon as possible, and as many as correlate on a variety of results that I would cite with some expression as to the title or nature of your claim, such as, "Claimant gives due notice that the nature of this claim is open-ended, while, however, any current denial would result in a complete agreement that those future injuries can be amended to any court action arising from such rejection, as this claim is to secure those rights for future claims by such rejection, (see attachments a-f environmental impact studies, and exhibit g compilation and correlation of likely to occur injuries that explain their entire and sole source is the original incident that is the basis for making a claim at all, and thereby rejection of this claim is rejection of those future environmental impacts, and any others that may occur no matter how obscure they may appear to be at this time)." Something to this effect (and that’s just off the top of my head) and the reason is that by the rejection, or saying they can't accept the filing due to this clause/notation, they'd have rejected the claim, resulting in a right of suit for all that is included and even portions that aren't where it is mentioned in any manner in the studies attached. You see what I am getting at? “They probably haven't thought it out this far and, as they have accepted the national government's abuse of them for such a long time, they probably can't come to think making a rightful challenge will yield a positive result.” (emphasis mine) It’s unfortunate that the people of this nation have been trained to immediately assume that any damage incurred by government actors, agents, bureaucrats or officials, appointed and elected, must be dealt with by first filing a lawsuit. What Toddy is trying to clarify is how exhausting the administrative process gives the claimant grant of right to sue in court. This is an important concept when agencies like the EPA and the IRS conduct their parody of the judicial system in their own administrative courts that, according to Sackett v. EPA, cannot render a final decision if the Administrative Process Act is properly applied. There are thousands upon thousands of individuals who have suffered loss at the hands of government agencies, from Health and Human Services (ObamaCare) to the United States Forest Service (forest and wildfire management). They have been beaten into believing that there is no recourse other than accepting whatever the behemoth administration dispenses. We must learn how to use the administrative process to our advantage and the foregoing is a good start. Note: Go to Changingwind.Org and use the search engine to look up more information on solutions to dealing with excessive government regulation. Also, check my Facebook page for a new reprint of Sackett v. EPA opens the door to relief published to our readers in March of 2012. It has links to Toddy’s explanation of SF95 usage.