Around two or three years ago, Keegan Caldwell's Boston-based law firm began receiving letters from incarcerated people from across the country. At first, he didn't read them. He was too busy growing his intellectual property boutique, Caldwell IP, into an established mid-sized firm. He knew the letters were in response to an Inc. Magazine article in which Caldwell opened up about his six felony convictions and his subsequent journey, against all odds, to becoming a lawyer. When he finally dug into the pile, Caldwell found a wide array of responses to his story. Some found it inspiring. Some, who were in prison for illegal patent licensing schemes, had business propositions for him. But one letter stood out in particular. It was from a man from Sanford, North Carolina, named Thomas Alston. He had been in federal prison since 2011 for money laundering, possession and conspiracy to distribute more than five kilograms of cocaine. He still had more than 17 years to go on his sentence when he contacted Caldwell. But Alston had an idea he needed help with. "Prior to that arrest, he had taken care of his grandmother for a number of years," Caldwell told Law360. "He was her primary caretaker, and there was a deep, genuine concern for his grandmother's welfare and health, and he used the resources that he had while being incarcerated to come up with an invention that allowed for people to make sure that their loved ones were taking their medicine while in a remote location." Alston's story resonated with Caldwell. He saw something in Alston that reminded Caldwell of a younger version of himself: a creative and entrepreneurial spirit with no place to channel that energy. "That's what really struck me," Caldwell said. "I was like, 'This is an entrepreneur.'" Caldwell began to help Alston secure a patent for his idea, and Alston's letter became the nexus for Caldwell IP's Incarcerated Innovator's Program. While many firms have taken on pro bono cases helping incarcerated or formerly incarcerated individuals overturn their convictions or seek shorter sentences, Caldwell's firm has taken a different approach to helping prisoners try to better their lives. The program helps inmates obtain and maintain patents for their ideas, whether to eventually start their own business or to try and monetize the idea through licensing deals. Caldwell is hoping the program will have an impact on recidivism. "One thing you can do, whether or not you're a convicted felon, is you can run a business," he said. "You can create a legitimate revenue stream for yourself by coming up with a decent business model." With a very unusual background for a law firm owner, Caldwell's efforts feel uniquely personal. In his early 20s, coming out of the U.S. Marine Corps, Caldwell struggled with addiction and racked up a hefty criminal record. Despite all this, he became a lawyer and a firm owner without ever setting foot in a law school. Over the years, there was a lot that people told Caldwell he couldn't do. "I feel like I have a unique perspective of knowing all those voices that people hear," he said. "People point you in the direction of something that is not going to be fulfilling because they don't think any of the other things are possible for you." So Caldwell's firm is spending time and money — in some cases upward of $100,000 for each person — on a handful of formerly or currently incarcerated people, to point them toward a brighter path forward, he said. "All of us at the firm just want to let people feel a little ray of hope that there's absolutely an opportunity for you," Caldwell said. "Don't listen to the naysayers. Just put one foot in front of the other and don't expect any miracles. And we're here to support you." Clearing a Path There's not much in the way of pro bono service in the intellectual property space, Caldwell said, likely because it can involve a big commitment of money and time. Securing and maintaining patents for clients can be a decadeslong process and can cost thousands of dollars. But Caldwell said that if his firm was going to help people this way, it needed to be in it for the long haul. "We're basically saying, for the right candidate, that we're all in," he said. "We're not going to just do this one little thing for you and then get out of here. We're with you. We're going to help figure out what your invention is, and we're going to help with everything." First, the firm helps provide a patent search, ensuring there aren't existing inventions that conflict with their client's idea. From there, Caldwell's team helps draft and submit the patent application, which includes several thousand dollars in fees to the U.S. Patent and Trademark Office. Since the USPTO usually rejects most applications at first, he said, the firm commits to spending additional time and money fighting to reverse the initial decision. And then the firm continues to pay maintenance fees for 20 years while looking for licensing opportunities, which come with their own fees. The whole thing is expensive, but for Caldwell, it's worth it. "Our lives are filled with abundance that we're very grateful for, and it puts us in an opportunity to be able to help others [who] I think ... often get left behind, and there's no reason that they should," Caldwell said. Alston's first patent was approved in April 2022. Alston told Law360 during a recent call from a federal prison in Virginia that he read about Caldwell while his prison was on lockdown during the COVID-19 pandemic. Within a couple months, Caldwell wrote him back.
"He read about my case and knew I'd been in a long time, and he said, 'You deserve a second chance,'" Alston said. As he was trying to keep his mind occupied on the inside, Alston said he began drawing a design for an advanced pill dispenser that could be a solution to a problem he faced trying to help his grandmother navigate a breast cancer diagnosis that required her to take a variety of medications at certain times each day. Although his grandmother died in 2013, he thought the device he had concocted in his head could help others. "It's got everything on it," he said. "You can contact your doctor. We've got 10 slots for different types of medication. It'll tell you what the medication is for and what to do with it. You've got a camera on there too, so if you're in New York and your mother lives in Florida, you could check on her and make sure she takes her pills. If she didn't take her pills when the tray dispenses it at the time, it notifies you." Now that the patent is squared away, he said Caldwell and the firm's director of client relations, Bailey Domingo, have been helping him look for licensing deals. "I already kind of got it in my head ... how I want to do things with the proceeds I make off my inventions [if I get out]," Alston said. "I'll start small and then work my way up." Caldwell is also helping Bruce Bryan, who was released from a New York state prison on clemency in April, as Bryan files a patent application for a digital platform designed to help incarcerated or formerly incarcerated people pursue wrongful conviction claims by providing a database of all parties involved in previously overturned cases, including prosecutors, judges and public defenders. "So that in the future, if their names are ever mentioned in anything, we know to look closely at what they're doing because they have a history of doing this," Bryan said. Caldwell said he's hoping to help more people like Bryan, who have recently been released and want to achieve things despite all the setbacks that come with a criminal record and years behind bars. "He's this really charismatic, wonderful guy," Caldwell said of Bryan. "But when you've spent three decades of your life in a place like he has, there are a lot of social pressures you didn't have to deal with on a daily basis that quickly become a reality. I think it's the community's job to help these folks live a successful life." From Convict to Law Firm Owner Caldwell got his first felony conviction in 2002 for malicious destruction of property, after drunkenly tearing up a bar in Michigan as a 23-year-old. Over the next five years, he'd rack up another five felonies related to selling or possessing drugs, from marijuana to cocaine and heroin. "I was legit feral. I was not the same dude that you're talking to today," Caldwell told Law360. "I was like a street urchin. I knew how to steal Little Debbie's and sell crack. That's what I knew how to do. That was my life." Many with Caldwell's rap sheet would spend years inside a cell. He got lucky, though, and he was ultimately diverted to a drug treatment court and sent to a rehabilitation facility instead of a jailhouse. Newly sober in the mid-2000s, he was living in a men's shelter and meeting weekly with a social worker whom he eventually told he wanted to go to college. "They thought that was not a realistic thing for me," Caldwell said. "And I also didn't really think it was a realistic thing for me." But Caldwell did make it to college. Although he spent all of his freshman year still living in the men's shelter, Caldwell managed to complete his bachelor of science degree at Western Michigan University and continued on to get his doctorate in physical chemistry at The George Washington University. But he said that throughout his academic career, his criminal background weighed on him. "I lived in silence and loneliness, a little bit, with it," he said. "No one I got a Ph.D. with, not a single person, knew what was up with me, and I was terrified that they would find out. I figured they'd kick me out of school immediately." When Caldwell got out of school, he found his job options were limited to ones that didn't require a background check. Caldwell had always kind of wanted to be a lawyer, he said. Before his first conviction, however, he said he asked his public defender if they thought a legal career would still be possible despite Caldwell's blossoming criminal record. According to Caldwell, the lawyer told him, "Not if you're convicted of a felony." Yet Caldwell, several years and several degrees later, found himself working as a patent agent at a law firm. Because of his hard science background, he was able to take and pass the federal patent bar exam in 2014. He said that clearing the character fitness portion of the test was a life-changing achievement. "I was like, 'Oh my God.' Then I knew I was good. Not like a good person. I'm still terrible," he joked. "But there was a path. I knew when they gave me that licensure that I can actually do something with this now." After clearing the patent bar, which made him eligible to be a patent agent, not a lawyer, he worked with the intellectual property group at Downs Rachlin Martin PLLC from 2014 to 2016 before Caldwell went on to start his own law firm, Caldwell IP. It was only as he was working to get the firm up and running that Caldwell passed the Vermont State Bar exam, finally making him a real lawyer, without ever having gone to law school. Today, Caldwell IP boasts of more than 40 employees and offices in Boston; Los Angeles; Burlington, Vermont; and London. As the firm was growing at breakneck speed, however, Caldwell said there was still one obstacle to overcome: sharing his story. His criminal record was still something he kept quiet about. But when a magazine wanted to write a feature on his firm, he decided to open up. He said he was terrified that in sharing his criminal record, he'd lose out on clients, but the response was overwhelmingly positive. "I felt this huge weight lifted off my shoulders," Caldwell said. "I got some great PR out of it, which was nice, but then I think that it helped us as a firm too because everything [drove home the belief] that this stigma could be broken. We wouldn't be doing this program if not for me saying, 'Hey, you know, I'm a guy that was in the situation, and I was able to work on those things. And if you're in a situation like that, too, don't lose hope. Because there's hope for you too.'" Balancing Hope With Patience Alston said he knows making money off his intellectual property can be a long process. He knows he won't make money off his inventions right away. But being smack in the middle of a nearly three-decade sentence has taught him to wait. He was 42 years old and a career offender caught up in an illegal drug trafficking scheme when a North Carolina federal court put him away. He'll be 69 when he's released, although he submitted a federal application for clemency two years ago citing good behavior. Before he was incarcerated, Alston said he couldn't find any jobs in his hometown, so playing what he said was a small role in drug trafficking around the Texas/Mexico border was appealing. Caldwell said he can empathize. "Imagine that, in your neighborhood where you grew up, the most successful people that you knew, who took care of your community, were folks that were selling drugs," Caldwell said. Many people with a criminal history actually share a bent toward entrepreneurialism, Caldwell said. "Thomas, he built an enterprise," he said. "He knows what that is and now he has the tools to do that, and I think a lot of people have that skill set." Alston said he's working on a new project right now. He hopes he can make some money to give to his five grandchildren. He dreams of getting out and working in the real estate business, remodeling and flipping houses. "I've got a pretty creative mind," he said. "[Being a patent owner/inventor] has helped me use my mind in different ways now, so that I can do something positive."
1 Comment
This year has already brought several landmark environmental rulings, from the U.S. Supreme Court's decisions narrowing the scope of the Clean Water Act and allowing a California animal care law to survive to important settlements by major companies accused of wrongdoing in "forever chemicals" litigation.
With 2023 only half over, other important decisions include the Fifth Circuit allowing the Biden administration's calculations on the social cost of greenhouse gases to stand and the high court's refusal to reconsider a slew of lower court cases remanding climate change tort litigation to state courts. Here are some of the biggest environmental law decisions so far in 2023. Clean Water Act In May, the justices overturned a Ninth Circuit ruling that Idaho landowners needed a Clean Water Act permit to build a home on their property. The high court found that nearby wetlands did not qualify as "waters of the United States" under the act. But the justices diverged on exactly when a wetland is subject to Clean Water Act jurisdiction, and a five-member majority created a new, much narrower test for the U.S. Environmental Protection Agency, Army Corps of Engineers, state regulators and a host of other affected parties to use when trying to figure out if a wetland can be regulated by the federal government. Many wetlands that were once thought to be covered by the law are now assumed to be unprotected, and the EPA and Army Corps have said they intend to rewrite federal regulations to match the court's opinion. Jesse Richardson, a professor at West Virginia University College of Law, said the waters of the U.S. rule is "extremely important" because the regulated community — farmers, builders and others — as well as regulators and environmental groups need certainty. But he said the high court's decision in the Sackett case also highlighted other regulatory issues. "Although the Sackett decision arguably provided some certainty on a very narrow issue (adjacent wetlands), many other areas remain unclear," Richardson told Law360 in an email. "In addition, some would say that the standard announced in Sackett lacks sufficient clarity. If Congress continues to fail to act, the agencies need to develop a rule that gives certainty to stakeholders and will withstand judicial scrutiny." The case is Michael Sackett et al. v. U.S. Environmental Protection Agency et al. , case number 21-454, in the Supreme Court of the United States. "Forever Chemicals" In June, public water utilities and chemical companies 3M, DuPont, Chemours and Corteva put an end to litigation over the contamination of drinking water supplies with per- and polyfluoroalkyl substances, or PFAS, known as "forever chemicals" because of their tendency to persist in the human body and the environment. The EPA has said some PFAS are known to cause serious health problems for people. In one instance, DuPont, Chemours and Corteva struck a deal worth more than $1.1 billion with utilities around the U.S., and shortly after that, a $12.5 billion deal was announced between 3M and the utilities. The settlements resolve claims that their products have contaminated drinking water sources nationwide. The settlements, which are still being finalized and will be subject to court approval, came days before a bellwether trial was set to begin as part of South Carolina-based multidistrict litigation consolidating cases against manufacturers and users of PFAS for applications like nonstick or stain-resistant coatings and firefighting foam. PFAS take an extremely long time to break down and "bioaccumulate" in humans and other living things that are exposed to them, according to the underlying litigation. The suits claim DuPont and others have known for decades about the chemicals' persistence and toxicity. There are still other defendants in the MDL, but the resolution of claims with the large chemical companies was a huge development in the litigation. The case is In re: Aqueous Film-Forming Foams Products Liability Litigation , case number 2:18-mn-02873, in the U.S. District Court for the District of South Carolina. Social Cost of Greenhouse Gases The Fifth Circuit in April rejected a claim by a group of Republican-led states that they are suffering under the Biden administration's calculations of the social cost of greenhouse gas emissions, finding the states could only point to a "chain of hypotheticals" to prove an injury. That decision agreed with an earlier Eighth Circuit decision dismissing a challenge from a separate group of states. The Fifth Circuit rejected arguments presented by Louisiana and other states that the White House improperly crafted social cost of greenhouse gas estimates, which can be used in federal rulemakings to put a dollar figure on climate change harms, without first putting them up for public review. The states had also argued that they face increased regulatory burdens and costs because of the way the estimates could be used. The dispute revolves around President Joe Biden's decision early in his tenure to reconvene the Interagency Working Group, which was started during the Obama administration and is tasked with calculating the social costs of carbon dioxide, methane and nitrous oxide. Those metrics seek to put a price on the economic costs, or damages, of emitting carbon dioxide into the atmosphere — and, therefore, the benefits of reducing emissions. According to the Fifth Circuit, Biden's executive order did not actually require any action from federal agencies, presenting a problem for the states' standing. The judges said that agencies are not punished or rewarded for how they choose to use the interim estimates, and have discretion in conducting cost-benefit analyses that could include the estimates. In the Eighth Circuit case, the panel said there's no evidence the states have suffered any injury that would give them standing to sue. That ruling has been appealed to the Supreme Court, which has not yet made a decision on whether to accept the case. The case is Louisiana et al. v. Biden et al ., case number 22-30087, in the U.S. Court of Appeals for the Fifth Circuit. Dormant Commerce Clause The justices made news again in May when they upheld a California ballot initiative that banned in-state sales of pork born from sows kept in confined housing. In a 5-4 ruling, the justices rejected the National Pork Producers Council and American Farm Bureau Federation's challenge to a 2018 voter-approved ballot initiative that, among other things, banned in-state sales of meat from pigs born to mothers confined in small spaces. The majority said that the business groups failed to prove that California's Proposition 12 violates the Constitution's dormant commerce clause, which isn't spelled out in the document but has been interpreted as barring states from discriminating between out-of-state and in-state companies. Allyson Ho, a partner at Gibson Dunn & Crutcher LLP and co-chair of the firm's nationwide appellate and constitutional law practice group, told Law360 her biggest takeaway from the case is that the Supreme Court is — and seems likely to remain — deeply fractured over the nature and scope of the dormant commerce clause. In particular, Ho noted that the justices diverged on how to interpret the court's 1970's Pike v. Bruce Church decision, which says state laws are unconstitutional if the burden they impose on interstate commerce is "clearly excessive in relation to the putative local benefits." "The court tightened up dormant commerce clause doctrine by rejecting the argument that the clause creates any per se rule against laws with extraterritorial effects, clarifying that the 'heartland' of the Pike test is smoking out purposeful discrimination against out-of-state business and upholding the California law at issue," Ho said. "But the court didn't slam the door shut," she added. "It declined to overrule Pike's balancing test altogether and left open the possibility that future challenges to laws imposing substantial burdens on interstate commerce could prevail, whether under the dormant commerce clause, or other constitutional provisions." The case is National Pork Producers Council et al. v. Karen Ross et al. , case number 21-468, in the Supreme Court of the United States. Climate Change In April, the Supreme Court declined to review several federal court orders sending climate change lawsuits brought by state and local governments against fossil fuel companies back to state and local courts. Chevron Corp., Exxon Mobil Corp. and other companies had asked the high court to review circuit court decisions that held the state and local governments' cases seeking to hold the businesses liable for climate-related infrastructure damages didn't involve questions of federal law that would have given federal courts jurisdiction. The First, Third, Fourth, Eighth, Ninth and Tenth circuits all affirmed lower court remands of lawsuits by state and local governments accusing energy companies of promoting production and use of fossil fuels while concealing their environmental risks, in violation of state laws including nuisance, trespass and consumer fraud. The companies had argued that claims related to greenhouse gas emissions and climate change are a matter of federal common law, while the state and local governments argued that there's no clear circuit split and that their state-law claims don't raise any uniquely federal issues. The companies have said they intend to keep fighting the lawsuits in whatever venue they are heard. The cases are Suncor Energy (U.S.A.) Inc. et al. v. Boulder County et al. , case number 21-1550; BP PLC et al. v. Baltimore , case number 22-361; Chevron Corp. et al. v. San Mateo County, California, et al. , case number 22-495; Sunoco LP et al. v. Honolulu, Hawaii et al .; and case number 22-523; Shell Oil Products Co. LLC et al. v. Rhode Island , case number 22-524, all before the Supreme Court of the United States. “Regulation by enforcement has worked for them so far but now they have a decision against their main theories,” A decision out of the Southern District of New York that approved some crypto market practices despite claims from the federal agencies is already giving renewed hope for an industry long battered by securities enforcement. “The opinion is being regarded as a win for the industry because it adds nuance to the regulatory market,” said Winston & Strawn partner and digital assets and blockchain technology group co-chair Daniel Stabile in a webinar Friday morning. Stabile hailed the decision from U.S. District Judge Analisa Torres of the Southern District of New York District, which found some of the uses of the XPR token, created by Ripple Labs, would not be considered a security and was therefore precluded from Securities and Exchange Commission oversight. The decision is already impacting the long-struggling crypto market with those invested in XPR tokens seeing a nearly 70% increase in its value since Torres ruled Thursday. And while the judge did find the company could be subject to enforcement related to some of the digital asset sales, the lack of liability for other uses is what’s causing such a strong market shift. “Where investors knew they were buying tokens from Ripple, knew the money was going to be used by Ripple—in that case it did constitute a security, an investment contract, under the Howey test, and Howey was the correct framework,” said Winston & Strawn partner George Mastoris of the nearly 80-year-old test developed by the U.S. Supreme Court, which has long been used to define when an asset qualifies as a security and is therefore subject to federal enforcement. “Courts have found the existence of an investment contract even in the absence of Defendants ‘essential ingredients,’” wrote Torres in the partial grant of summary judgment. Put differently, the Howey test was intended to effectuate ‘[t]he statutory policy of affording broad protection to investors,’ protection that is ‘not to be thwarted by unrealistic and irrelevant formulae.’” That finding rejected Ripple’s argument “that all investment contracts must include post-sale obligations on the promoter and grant the investor a right to share in profits from the promoter’s efforts,” the Barack Obama appointee wrote. But when it comes to other sales, including programmatic sales, where the buyer had no way of knowing the sales were done pursuant a blind sale, Torres found the third prong of the Howey test wasn’t satisfied. “The application to secondary transaction markets, which Torres said she wouldn’t reach, seems a fairly straight line to draw to say those transactions may not actually constitute securities for purposes of the Howey analyst,” Mastoris said. “The focus is whether the purchaser’s money is being utilized by the issuer and whether they know their money is being paid for by the issuer, that’s the critical component and it’s missing.” This impact from tokens given to employees and the like, for someone’s labor for example, that’s not enough to qualify. “I expect there will be a lot of discussion around that finding,” Mastoris said. Notably the company’s due process arguments, that the agency failed to inform Ripple of their violations before enforcement, were denied, and that’s in line with other enforcement actions which have found the same. “The law does not require the SEC to warn all potential violators on an individual or industry level,” Torres wrote, citing Second Circuit precedent that asks “whether the law presents an ordinary person with sufficient notice of or the opportunity to understand what conduct is prohibited or proscribed, not whether a particular [party] actually received a warning that alerted him or her to the danger of being held to account for the behavior in question.” Still, the decision is one in a long line of otherwise bad legal decisions or settlements for the crypto industry. The SEC has a nearly flawless record of prosecutions and settlements against alleged crypto-related securities and fraud violations. Winston & Strawn partner Thania Charmani went as far as to hypothesize that the SEC will appeal and the Second Circuit may be very inclined to side with them. “In the meantime, the decision could still impact other courts,” she offered as a shining light. As influential as the Southern District of New York is, she said people could expect the Ripple decision to ripple through other cases in some ways. There’s also the hope that this ruling may inspire Congress to act. Sens. Cynthia Lummis, R-Wyoming, and Kirsten Gillibrand, D-New York, reintroduced an effort to address much of that uncertainty earlier this week. “This type of decision that changes the legal landscape could prompt congress to act sooner than later,” Charmani said. “Regulation by enforcement has worked for them so far but now they have a decision against their main theories.” Ripple was represented by Andrew Edward Goldsmith of Kellogg, Hansen, Todd, Figel & Frederick and Andrew J. Ceresney of Debevoise & Plimpton in the dispute. Cannabis reform efforts notched numerous victories in the first half of 2023, with Delaware and Minnesota becoming the 22nd and 23rd states, respectively, to legalize adult-use marijuana and Kentucky becoming the 38th in the nation to approve a medical marijuana program.
The Marijuana Policy Project, an advocacy organization that has pushed for cannabis policy reform in several states, said in a recent announcement that 2023 was "shaping up to be another landmark year" for marijuana legalization. But the first half of the year also saw voters in Oklahoma roundly reject a referendum to legalize recreational marijuana during a special election in March, while Virginia lawmakers failed to pass legislation to regulate cannabis sales, despite decriminalizing the drug for adult possession and use two years ago. Here are some of the victories and setbacks for cannabis legalization so far this year. 3 More States Approve Adult-Use, Kentucky OKs Medical Minnesota Gov. Tim Walz in May signed a bill to allow sales of recreational cannabis and create a tax structure for the drug. The law took effect June 30 and made Minnesota the 23rd state to legalize adult-use cannabis. H.F. 100 imposes a 10% gross receipts tax on the sale of cannabis products, to be paid by the retailer. The bill also levies the 10% tax on someone who "receives cannabis products for use or storage" in Minnesota. Walz said in a statement at the time that the legalization would stimulate Minnesota's economy. "By legalizing adult-use cannabis, we're expanding our economy, creating jobs and regulating the industry to keep Minnesotans safe," he said. Minnesota's legalization came on the heels of a similar reform win in Delaware, where the governor allowed a pair of bills to become law in April without his signature. H.B. 1, which removes all penalties for personal use and possession for people over age 21, and H.B. 2, which creates a regulated market for adult-use cannabis under the ambit of a new Office of Marijuana Control Commissioner, had been approved by the state Legislature with majorities large enough to overcome a veto. Gov. John Carney, a Democrat, said in a statement at the time that while he supports medical cannabis and Delaware's decriminalization law, he believes legalization of recreational cannabis is "not a step forward," but that prolonging debate won't serve Delawareans. "I want to be clear that my views on this issue have not changed," Carney said in the April statement. "And I understand there are those who share my views who will be disappointed in my decision not to veto this legislation. I came to this decision because I believe we've spent far too much time focused on this issue, when Delawareans face more serious and pressing concerns every day. It's time to move on." Adult-use sales in Maryland commenced on the first day of July, with approximately 100 dispensaries across the state up and running, the Maryland Cannabis Administration, the state's cannabis regulator, announced June 30. The announcement comes less than two months after Gov. Wes Moore signed into law a bill to launch regulated sales of adult-use marijuana beginning in July and tax them at a 9% rate, following voters' overwhelming approval of legalization on Election Day last year. Maryland's adult-use legalization ballot measure, Question 4, passed with 67% of the vote. But other than including an effective date of July, the constitutional amendment had few details about how the market would be regulated. The entire amendment consisted of two sentences — one creating the right of adults 21 and over to possess and use cannabis, and the other directing the General Assembly to establish a legal structure for regulating and taxing cannabis. The state Legislature responded by writing and passing S.B. 516, which established the MCA to oversee the industry. "The administration has developed public and consumer education materials to encourage informed, responsible, and safe cannabis use and will continue to roll out a campaign in the coming weeks and months," said MCA Deputy Director Dawn Berkowitz in a June 30 statement. Kentucky became the 38th state to legalize medical marijuana in March when Gov. Andy Beshear signed legislation into law approving the creation of a state-regulated program. Beshear announced the signing one day after the state's House of Representatives approved the bill in a 66-33 floor vote and two weeks after the state Senate approved it in a 26-11 vote. Just before signing the bill at a news conference, Beshear called it "historic," and noted that the people of the state have been pushing for it for years. "These folks want and deserve safe and effective methods of treatment," he said at the news conference. "We needed legislative action, and last night the General Assembly delivered." In a statement, Beshear added that the bill is aimed at reducing Kentuckians' reliance on addictive opioids while providing them with relief from severe and chronic pain. "In November, I signed an executive order to help Kentuckians with certain medical conditions, like our veterans suffering from PTSD, find safe and effective relief through medical cannabis," Beshear said in the release. "Now, I am finally able to sign this legislation into law and fully legalize medical cannabis — something the majority of Kentuckians support." Okla. Voters Say No; Lawmakers in Texas and Virginia Punt Oklahoma voters in March decisively rejected a referendum to legalize recreational marijuana and tax and regulate its sale during a special election. Voters rebuffed the legalization measure, designated State Question 820, with 62% of the electorate voting against it. In rejecting recreational legalization, Oklahoma followed the lead of Arkansas, North Dakota and South Dakota, each of which rebuffed proposals to bring the states from medical-only marijuana use to full legalization on Election Day last November. "Oklahoma's wholesale rejection of marijuana legalization is titanic, given the context," Luke Niforatos, executive vice president of the anti-legalization advocacy group Smart Approaches to Marijuana, said at the time. "This makes now four out of six states rejecting legalization over the past year. It's unprecedented in the modern era of marijuana ballot measures." The repudiation also indicates that Oklahomans oppose liberalizing the state's marijuana laws further after the state legalized medical cannabis by ballot referendum in 2018, with 57% of voters approving the measure. Since then, the industry has been regulated by the Oklahoma Medical Marijuana Authority, or OMMA, the same agency that would have been tasked with overseeing adult-use cannabis if S.Q. 820 had passed. Cannabis has been legal for personal use and possession in Virginia since 2021, but the state has not yet established a regulated marketplace. Republicans in Richmond have generally opposed cannabis reform, with Gov. Glenn Youngkin saying his priority is reining in unregulated sales of hemp-derived cannabinoids. A cannabis regulation bill passed the Democrat-controlled state Senate earlier this year on a largely party-line 24-16 vote, with two Republicans joining the Democratic majority to approve the bill and no Democrats voting against it, only for it to die in a GOP-controlled House of Delegates Subcommittee. The bill, S.B. 1133, would have regulated the state's cannabis market under a new Cannabis Control Authority and included provisions governing the packaging of products containing Delta-8 THC. It would have also imposed a 21% excise tax and allowed local municipalities to levy their own 3% tax. "It's unfortunate that the Youngkin administration has yet to get on board with taking control of Virginia's marijuana market," JM Pedini, executive director of the Virginia chapter of legalization advocacy organization NORML, told Law360. "Only through commonsense regulation allowing for the legal, licensed commercial production and sale of cannabis can states ... best address adult consumers' demand while ensuring product safety and keeping marijuana largely out of the hands of young people," Pedini added. "The lack of legal access in the Commonwealth has not only led to an ever-expanding illicit market, but continues to put public health and safety at risk." Finally, in Texas, lawmakers considered proposals to decriminalize simple possession of cannabis and to expand the state's medical low-THC program, both of which were approved in the state House of Representatives only to die in the Senate. The decriminalization bill, H.B. 218, authored by Democratic Reps. Joe Moody, Harold Dutton and Rafael Anchía and Republican Reps. Charlie Geren and Briscoe Cain, was approved by the House on a vote of 87-59, but its companion bill failed to get any traction in the other chamber before the session closed. The bill would have amended the state code to make possession of an ounce or less of cannabis a Class C misdemeanor, which does not come with a potential prison sentence. A separate bill that would have allowed physicians to prescribe low-THC oil for any condition for which they would ordinarily prescribe opioids similarly passed the House, but ultimately failed. Texas does not have legalized medical marijuana, but does allow qualifying patients to use low-THC oil for certain conditions. The legislation, H.B. 1805, was approved by the House on a 127-19 vote and included a provision that the state's health regulators could add another "debilitating medical condition" to the list of qualifying conditions. As States Purge Medicaid Rolls, Legal Aid Groups Step Up North Carolina resident Anthony Brooks spent the last few weeks rushing to schedule doctor's appointments and procedures to treat his chronic heart problems. The 57-year-old is set to lose his health care coverage through Medicaid at the end of the month, so he is racing to set up surgery to implant a defibrillator his doctors said Brooks needs. "I can't afford insurance," said Brooks, who worked as a traveling home health aide for the elderly until he suffered a heart attack last September. "This is devastating to me." Meanwhile, in Florida, Gillian Sapia was shocked when her 5-year-old daughter Penelope's occupational therapist texted her the day before a scheduled session in May to tell her Penelope was no longer covered by Medicaid. Penelope, who has been on Medicaid her whole life, has a rare metabolic disorder called classic galactosemia, as well as other health conditions. After the message from her daughter's therapist, Sapia began a frustrating pursuit to get answers from the state's Department of Children and Families. "I spent like a week trying to get somebody, and it was just hours and hours of phone calls," Sapia said, only to eventually receive conflicting information. Brooks and Penelope are among the millions of Americans who have recently faced losing their coverage as states have started to review eligibility for the first time since 2020. During the COVID-19 pandemic, the federal government prohibited states from kicking people off Medicaid because of a "continuous coverage requirement" linked to the federal health emergency. But that requirement ended March 31, allowing states to once again start cutting Medicaid rolls. More than 1.6M Have Lost Medicaid Coverage States are reviewing Medicaid recipients' eligibility now that pandemic-related protections have ended, resulting in many people losing coverage. By Number Florida 302,556 Arizona 148,637 Washington 115,963 Arkansas 110,436 South Carolina 107,510 Indiana 106,669 Pennsylvania 96,810 Ohio 94,368 Idaho 67,819 Virginia 53,353 Kansas 51,487 Colorado 50,908 Connecticut 46,140 West Virginia 42,626 Massachusetts 35,533 Maryland 34,675 Kentucky 34,124 Nevada 31,176 Oklahoma 27,977 Iowa 19,680 New Hampshire 17,112 South Dakota 16,078 Montana 15,471 Nebraska 9,662 Vermont 5,852 District of Columbia 3,011 Alaska 2,806 Rholde Island 2,274 Georgia 1,659 Both Brooks and Gillian Sapia turned to legal aid organizations for help.
Across the country, nonprofit legal groups are working to raise awareness about the changes, help people appeal coverage terminations and educate beneficiaries about their rights. Attorneys report that as states undertake the massive review, beneficiaries are experiencing confusion, difficulty getting answers and processing errors. "This is a very complex process that states have to implement," said Cassidy Estes-Rogers, an attorney and program director with the Charlotte Center for Legal Advocacy, the North Carolina organization Brooks went to for guidance. As renewal paperwork has started to go out, "at the beginning of the month, we see a huge volume of calls with just absolutely confused people." Medicaid rolls skyrocketed during the pandemic, with nationwide enrollment growing by 21.2 million people, a 30% increase, from February 2020 to December 2022, according to the health policy nonprofit KFF. During the public health emergency, Medicaid recipients did not need to renew their eligibility. And many newer enrollees are not familiar with the renewal process, Estes-Rogers said. People generally need to renew coverage yearly and may have to fill out forms with information about their income and other criteria. Brooks became eligible for Medicaid during the public health emergency. But when his eligibility was recently reviewed, he learned that his monthly Social Security disability income put him $12 over the income limit. "I was … astonished," Brooks said. Under a Medicaid expansion law that was approved in North Carolina earlier this year, but has yet to take effect, Brooks would be eligible to remain covered. In the meantime, however, Brooks said the Charlotte Center for Legal Advocacy has been helping him navigate the system and look for alternative coverage. States are approaching the Medicaid redeterminations differently, with varying timelines and processes. In Florida, the state has said it will delay determinations for vulnerable groups — such as those under age 21 diagnosed with medically complex conditions — until the end of the review process. Despite that, "we're hearing from parents of children with very complex, serious medical conditions — the kinds of conditions that cannot go a day without coverage," said Miriam Harmatz, advocacy director and founder of the Florida Health Justice Project. Florida resident Sapia said Penelope's medical needs include anti-seizure medications, regular lab work, and occupational and speech therapy. When her Medicaid was terminated, Penelope was undergoing assessment for new seizure activity and kidney dysfunction. Sapia, a nurse who is now Penelope's full-time caregiver, said she is very organized about her daughter's care and knew about the redetermination process months ago. Despite her best efforts, however, Sapia said she never got notice from the state that Penelope's coverage was being terminated. After attorneys with the Florida Health Justice Project got involved with her case, she said she received a call informing her that Penelope's coverage was back in place. But in the three weeks her daughter went without coverage, Sapia said she paid roughly $2,000 in medical expenses out of her own pocket. Sapia said she never received a straight answer from the state about why her daughter's coverage initially ended. "They danced around it," she said. Mallory McManus, deputy chief of staff for the Florida Department of Children and Families told Law360 the agency could not comment on a specific case, but that recipients are notified of ineligibility either through email or mail, depending on how they have chosen to be contacted. McManus said "safeguards are in place" during the appeals process if someone believes their coverage was terminated in error. "Coverage is reinstated during this review if the hearing is requested before coverage ends, or retroactively applied if the appeal concludes with a reinstatement of benefits," the deputy chief said, adding that some children with medically complex conditions are having their eligibility reviewed now if "a parent initiated a review early." While most states are planning to take at least a year with what's known as the Medicaid unwinding, Arkansas lawmakers in 2021 decided the state would complete the process within six months. The state started sending renewal letters in February, and so far, more than 110,000 people have lost their coverage, according to state data. "The beginning of March, we were already inundated with calls," said attorney Trevor Hawkins, leader of the economic justice workgroup at Legal Aid of Arkansas. By the time someone contacts Legal Aid, he said they are often "frantic or about to give up." "We really have to hit the ground running as soon as we talk to someone," Hawkins said, adding that people have had their coverage ended without receiving notice. Conflicting information is a big issue in the process, said Trevor Townsend, a managing attorney in the public benefits section at the Center for Arkansas Legal Services. He pointed to one client who reported receiving two Medicaid coverage notices within a week, each with different income findings for the family. Arkansas has among the nation's highest rates of "procedural terminations" — where someone is cut from Medicaid for something like not returning a form — with more than 80% of disenrollments being procedural. "Some of those folks may have made the decision not to return the [paperwork] just because they knew that they weren't eligible, but I suspect a large portion of those just got tripped up in this process," Townsend said. Nationally, more than 70% of terminations are for procedural reasons, according to KFF. That has raised alarms among federal officials. In a letter to governors last month, U.S. Department of Health and Human Services Secretary Xavier Becerra wrote he was "deeply concerned with the number of people unnecessarily losing coverage, especially those who appear to have lost coverage for avoidable reasons that state Medicaid offices have the power to prevent or mitigate." A spokesman for the Arkansas Department of Human Services said many people "simply will not return their packet because they are aware that they no longer qualify because of their change in circumstances." "A closure for procedural reasons does not mean that the packet was not received or that the beneficiary was unaware of this need to renew," said spokesman Gavin Lesnick. "Extensive efforts have been made — and are continuing to be made — to ensure that Medicaid recipients know what to expect." The state mails renewal notices 90 or 120 days before they are due, depending on the coverage type, as well as reminder notices about 45 days before renewals are due, he said. The state also issues text messages and emails when notices go out. Lesnick said that whenever possible, "eligible beneficiaries have their coverage renewed through an automated process" rather than requiring them to submit new information. He added that the state prepared for the end of the public health emergency for more than a year, including running a campaign to ensure people's contact information was updated. Legal Groups Work To Spread Word, Keep Eyes on States Around the nation, legal organizations are working to connect people with help through social media, advertising and community outreach efforts. Maryland Legal Aid, for instance, started a series of social media posts called "Medicaid Mondays," said Jennifer Lavella, the organization's director of marketing and communications. It also ran an advertising campaign on Facebook and Instagram that reached at least 30,000 people. Groups are also monitoring states' compliance with legal requirements and providing feedback to Medicaid agencies. Legal Aid Services of Oklahoma has worked to keep the lines of communication open with the state Medicaid director, said staff attorney Dianna Berry. About 300,000 Oklahomans are expected to lose their coverage during the unwinding. "We're monitoring everything that the state is doing because we know that this is going to have a significant impact on a lot of individuals, and we want to try to minimize that," and ensure that people who are still eligible remain covered, Berry said. It's vital for people to understand their rights in the process, said Majesta-Doré Legnini, an Equal Justice Works health justice fellow with the Legal Aid Justice Center in Charlottesville, Virginia. Legnini has a medical-legal partnership with VCU Health System's emergency department in which she counsels patients on legal issues. She's encountered many people who mistakenly believe that they're automatically losing their coverage. "It's really important that people know that they are not without options when dealing with Medicaid," Legnini said. Sapia said she felt "like a horrible mom" when her daughter lost coverage. Before the Florida Health Justice Project attorneys looked at the case, she thought she must have made some kind of mistake. The relief Sapia felt when she got the legal help she needed, she said, was almost beyond words. "I can't even describe how grateful I felt," Sapia said. An engineering firm that assisted Flint, Michigan, in its catastrophic attempt to change its drinking water supply has reached a confidential settlement in principle with a class of city residents and individual plaintiffs to resolve all federal and state negligence claims. Lockwood Andrews & Newnam PC and its parent corporation, the Leo A. Daly Company, requested a 45-day stay in the proceedings to finalize the terms of the agreement stemming from the city's water crisis that began in 2014, according to a joint filing Thursday in the Eastern District of Michigan. "Plaintiffs and the LAN defendants wish to finalize the settlement without burdening this court with additional filings and without incurring unnecessary litigation expenses in the interim," the filing said. Lead counsel for LAN said in a statement Friday that the companies were "pleased with the settlement, which will allow LAN to put this matter behind them and focus on their future." "We believe this will finally bring closure for the state, plaintiffs and LAN," said Wayne B. Mason of Faegre Drinker Biddle & Reath LLP. "LAN maintains it was never responsible for any of the issues related to the Flint matter, and further litigation would not be productive for any party." Co-lead class counsel, Theodore J. Leopold of Cohen Milstein Sellers & Toll PLLC, declined to comment Friday and attorneys for the individual plaintiffs did not immediately respond to requests for comment. The settlement in principle comes a week after class plaintiffs filed briefs opposing summary judgment arguments from LAN, its parent company, and Veolia North America, saying the engineering firms had a duty to warn Flint residents that the drinking water was unsafe and they should not escape professional negligence claims. Veolia North America is not part of the potential settlement and the stay of court proceedings does not apply to it, according to Thursday's filing. Counsel for VNA did not immediately respond to a request for comment Friday. In arguing for summary judgment in May, the engineering firms said the professional negligence claims — the only claims left in the litigation — should be dismissed because the companies did not have a direct relationship with city residents and therefore could not have had a duty of care. The firms argued they had a relationship with the city, which was their client. Residents countered that LAN did have a relationship to the class plaintiffs based on its engineering work for the city before and during the Flint water crisis. Plaintiffs argued Michigan law is clear that a professional's duties are not limited to clients and said VNA had a responsibility to residents because Flint hired it to investigate various quality issues. The city was in dire financial straits and going through a string of state-appointed emergency managers when it decided to leave its longstanding Detroit Water and Sewerage District hookup, which took water from Lake Huron, and go instead to the Flint River. In August, a jury in Ann Arbor failed to reach a verdict after a six-month trial. It was the first bellwether trial involving LAN and VNA. In December, LAN agreed to four separate settlements with children who alleged the company's actions during the drinking water source switch contributed to a lead contamination catastrophe that poisoned them. The residents and individual plaintiffs are represented by Theodore J. Leopold, Emmy L. Levens and Trent Rehusch of Cohen Milstein Sellers & Toll PLLC, Michael L. Pitt of Pitt McGehee Palmer Bonanni & Rivers PC, Hunter Shkolnik of Napoli Shkolnik PLLC and Corey M. Stern of Levy Konigsberg LLP. Leo A. Daly Company and Lockwood Andrews & Newnam are represented by Wayne B. Mason, Travis S. Gamble, S. Vance Wittie and David C. Kent of Faegre Drinker Biddle & Reath LLP and Philip A. Erickson and Rhonda Stowers of Plunkett Cooney. Veolia North America is represented by James M. Campbell and Alaina N. Devine of Campbell Conroy & O'Neil PC and Michael A. Olsen of Mayer Brown LLP. The cases are In re: Flint Water Litigation, case numbers 5:16-cv-10444 and 5:17-cv-10164, both in the U.S. District Court for the Eastern District of Michigan. The Federal Bureau of Prisons has failed to punish administrators of a high-security federal penitentiary in Illinois for what have been described as acts of torture and a culture of "rampant racism," according to a report released Thursday by advocates for inmate rights. An 18-month investigation into the Special Management Unit, or SMU, in the U.S. penitentiary in Thomson, Illinois, detailed what accounts from more than 120 prisoners indicate were acts of "extreme physical and psychological abuse" at the hands of staffers and fellow inmates, according to the report on the results, titled "Cruel and Usual." The BOP shut down the unit in February following reports of abuse and after pressure from elected officials, but the bureau has yet to bring disciplinary or any other actions against anyone responsible, the report says."The complete lack of any accountability is astounding," said Jacqueline Kutnik-Bauder in a statement. She is the deputy legal director of the Washington Lawyers' Committee for Civil Rights & Urban Affairs, a nonprofit that worked on the report alongside lawyers from Latham & Watkins LLP, Uptown People's Law Center and Levy Firestone Muse LLP. "As far as we can tell, not one person has been disciplined or faced criminal charges related to the abuses in the special management unit," Kutnik-Bauder added in the statement. More than 40 attorneys and legal staffers worked on the investigation, which centered on interviews with SMU inmates and the review of over 1,000 pages of prison records that corroborated most of the inmates' accounts. Prisoner Kareem Louis said he was forced into a cell with someone prison staffers knew was violent. The cellmate stabbed Louis in the hands, back, arms and neck, then raped him while he was unconscious, according to the report. The report also cited another inmate, Daryl Hickson, who recalled objecting to his cell assignment because of a conflict with his cellmate. The situation didn't end well. "You either kill or be killed," a white guard told him, according to the report. "You're going back in that cell to get killed, [n-word]." After Hickson continued to complain, officers shackled him, immobilized all four of his limbs on a stretcher, and left him that way for hours, he recounted. A prisoner identified in the report only by initials, J.B., is cited as saying he attempted suicide nine times while being held in the SMU. J.B. reportedly said prison guards restrained him to a chair for 24 hours and denied him food, water and access to a toilet after he told them he had swallowed an excessive amount of pills. The report further cites Inmates who reported being regularly placed in tight four-point restraints for hours, a practice that left permanent scars on their wrists, ankles and stomachs — informally known as "Thomson Tattoos." Multiple inmates reported being beaten and sexually assaulted while in restraints. In its recommendations, the report urged the BOP to strictly limit and monitor the use of restraints. It also called for the U.S. Department of Justice to impose external, independent oversight. According to the report, more than 165 staff members participated in violence or abuse at the prison. "The individuals with whom we spoke described nothing less than a culture of torture far too pervasive to be the result of a few 'bad apples,'" the report says. In some cases, members of the investigating team said they witnessed violence firsthand during their inspection visits at the prison. "We also witnessed firsthand abusive and obstructive staff behavior, and saw with our own eyes injuries inflicted by Thomson employees," the report says. In a call with Law360, Kutnik-Baude said prison guards are at fault for both the acts of violence they themselves carried out and for not intervening to prevent violence among inmates. "Under the Constitution and federal law, the guards have a duty to protect people from known threats," she said. "What happened at [the Thomson penitentiary] is that guards were intentionally forcing people into cells together that had antagonisms." For example, she said, a Jewish man was placed in the same cell with two known white supremacists. In other instances, she said, inmates were placed with peers who were known to be mentally ill and threatening, or who were physically or sexually violent. "[The guards] also would tell people that they were expecting them to fight and, if they didn't, that they would be put in four-point restraints or tortured otherwise," Kutnik-Baude said. The report's authors urged the U.S. Department of Justice to open criminal investigations into the abuse allegations at the prison and to abolish the SMU program altogether. "Ending systemic abuses should be a priority," Kevin Metz, a Latham partner who acted as counsel to the investigation, said in a statement. A spokesperson for the Bureau of Prisons told Law360 in an email that the agency took "corrective measures" after it identified "significant concerns with respect to institutional culture and compliance with BOP policies" at the prison. "The BOP remains unwavering in our commitment to swiftly address misconduct and resolve troubling accusations with resolute measures. Allegations of employee misconduct will continue to be met with rigorous investigations and decisive action. A culture not representative of the agency's core values will not be tolerated," the spokesperson, Benjamin O'Cone, said. Located in rural Illinois on the banks of the Mississippi River, the Thompson prison had a capacity of 2,100 beds in 2014 — 1,900 high-security SMU beds and 200 minimum-security beds — according to a report released to Congress. In 2022, the prison housed about 1,200 people on average, according to an audit published last year. According to Kutnik-Baude and congressional reports, the Bureau of Prisons assigns inmates who "present unique security and management concerns" to the special units, usually for up to a year. Conditions in special units are more restrictive than those for general population prisoners. In special units, prisoners are typically placed in pairs inside cells that are roughly the size of a parking spot. These inmates sleep in a bunk bed and share a little toilet and a sink. "Those people are confined in that cell together 23 hours a day," Kutnik-Baude told Law 360 by phone. The report found that some inmates were held in the SMU for nearly four consecutive years. According to BOP directives, prisoners who qualify for SMU confinement are those who took parts in killings, assaults or riots, who possessed drugs, took part in gang activity, or have long histories of disciplinary infractions committed while in prison. One of the elected officials who has shown interest in the Thomson prison, Sen. Dick Durbin of Illinois, a Democrat who chairs the Senate's judiciary committee, called for the abolition of the SMU program in a statement Thursday that mentioned the report by the Washington Lawyers' Committee for Civil Rights & Urban Affairs. Durbin, who has visited the penitentiary and called for a shutdown of its SMU unit in the past, said he plans to question the BOP's director, Colette S. Peters, about the allegations in the report. "Last summer, I was deeply disturbed by reports of abuses at [the Thomson penitentiary]. I called for an investigation, which the Justice Department Inspector General agreed to undertake. The deeply disturbing allegations detailed in today's [news] reports emphasize the need to expedite this investigation and refer any crimes that may have been committed to the Justice Department for prosecution," Durbin said. "Anyone who violated the civil rights of individuals incarcerated at Thomson should be held accountable." BY THE NUMBERS Violence at USP Thomson An investigation of a Special Management Unit inside Thomson U.S. Penitentiary in Illinois included interviews with over 120 inmates and found widespread violence carried out with impunity by both prison guards and prisoners. 241 acts of physical violence by guards at Thomson 178 incidents of guards using restraints as a form of punishment or torture 136 incidents of retaliation by guards 39 people were assaulted by guards while in restraints 41 individuals reported being forced to share a cell with someone who posed a threat 43 people with serious mental illnesses, such as depression and schizophrenia, were held in the SMU in violation of BOP policies 19 incidents of sexual assault by guards 15 individuals attempted suicide, in some cases as many as nine times 13 people held in four-point restraints by guards for 24 to 96 hours straight Three Mohawk tribes are headed toward resolving a land dispute between the state of New York and local municipalities over a late 18th century treaty, ending a decadeslong suit that alleged the state illegally bought 2,000 acres within their defined reservation. Unlike many land claims' settlements, the tribes must also get the approval of the New York Legislature and U.S. Congress before the agreement is finalized because it deals with issues under the Nonintercourse Act and affects the status of lands reserved to the Mohawks through a 1796 treaty. It's not yet known when a full agreement will be in place, but the St. Regis Mohawk Tribe, the Mohawk Council of Akwesasne and the Mohawk Nation Council of Chiefs said in a June 30 report that "there have been two positive developments in achieving a negotiated settlement" and that negotiations would most likely continue through the end of August. U.S. Magistrate Judge Therese Wiley Dancks, in a text-only order on Wednesday, said Mohawk tribes must continue to work together in good faith to finalize the settlement terms and agreements with the state of New York and the counties of St. Lawrence and Franklin. The land suit, filed by the Mohawk Council of Akwesasne, first opened in 1982 and had been paused from 2014 to January 2021, when the stay was lifted after the parties failed to settle. Separate land claims were filed by the tribes in 1989, and the cases were consolidated in 1992. In 1998, the United States intervened as a plaintiff in the case. New York legislators in June approved a bill authorizing Gov. Kathy Hochul to sign an agreement once all parties have given the go-ahead to its final terms. The tribes said that while the bill isn't perfect, it sets the stage to end a 40-year-old dispute. "We have worked very hard on this settlement, and as we have explained to our community members, there are a great many benefits from settling, primarily in increasing our land base." St. Regis Mohawk Tribal Chief Beverly Cook said in a statement at the time of the bill's passage. New York and Franklin County have also reached an agreement on the long-standing issue of payments from the state to the county, according to tribes' report. Under a June 2022 agreement, Franklin County and the towns of Bombay and Fort Covington each received $15 million from New York for the unrestricted use of the reservation land. New York also must pay $2 million annually to be split among the county and the towns for past services rendered. "We anticipate that the memorandum of understanding among the plaintiffs, Franklin County and the state will be revised to reflect the recent understanding between the state and county on the payments issue, and to make other minor changes agreed to by the parties," the tribes said in the report. The tribes are closer to finalizing an internal agreement governing the implementation of the settlement, according to the report, and a separate memorandum of understanding among the tribes, St. Lawrence County and the state are not yet final. In addition, the tribes said they are considering final offers from the state and the New York Power Authority on certain issues but believe they have reached an agreement in principle. "However, not all of the final offers were presented in writing, and so the plaintiffs are now drafting proposed settlement language to embody the agreement in principle, which they anticipate being able to share with the state in the near future," the tribes said. Litigation in the decadeslong case came to a head in March 2022, when a federal district court ruled that New York's purchase of reservation lands in the 1800s violated the Nonintercourse Act. The court found that the state didn't follow six statutes of the act, which regulates commerce within tribal nations and clearly establishes rules for the purchase of tribal property. The federal law specifies that only legislation by Congress can transfer title to a purchaser. New York attempted to purchase approximately 2,000 acres of reservation land in 1824 and 1825 without the presence of a federal commissioner or any subsequent ratified federal act, the tribes alleged. The lands that make up the Hogansburg Triangle, situated at the center of the reservation near the Canadian border, were explicitly reserved for tribal use under the 1796 treaty ratified by Congress. In a March 2021 bid for partial summary judgment, the tribes urged the court to find that the 1796 treaty that established their reservation had been continuously valid since its inception. The tribes cited the 2020 landmark McGirt v. Oklahoma ruling, which reaffirmed tribal sovereignty by saying that the boundaries of the Muscogee (Creek) Nation were never disassembled. "To the extent the defendants contend that the unratified conveyances diminished the reservation, and they might show this through evidence other than congressional action, they are engaged in the very actions that the court in McGirt feared — a state encroaching on tribal rights and nullifying their interests despite Congress' supreme authority over reservation lands," the St. Regis Mohawk Tribe wrote in its filing. Counsel for the tribes and New York could not immediately be reached for comment on Thursday. The tribes are represented by Frank S. Holleman of Sonosky Chambers Sachse Endreson & Perry LLP, Michael L. Roy and Caroline P. Mayhew of Hobbs Straus Dean & Walker, Alexandra Page, Curtis G. Berkey and Jenna Macaulay of Berkey Willliams LLP The United States is represented by James B. Cooney of the U.S. Justice Department's Environmental and Natural Resources Division. New York is represented by its state attorney general's office. The case is Canadian St. Regis et al. v. State of New York et al., case number 5:82-cv-00783, in the U.S. District Court for the Northern District of New York.
|
HISTORY
April 2024
Categories |