One of the country's founding fathers, John Adams,  is often quoted as defining our nation as a "government of laws, and not of men."

That quotation came to mind during the first week of the Penn State Child Abuse Scandal, when the focus moved very quickly from the alleged perpetrator, Jerry Sandusky, to the much younger assistant football coach Mike McQueary who allegedly witnessed Sandusky raping (performing anal intercourse) on a 10 year old boy in the Penn State football team's field house showers.

Not even a question, really, as to Sandusky: it is immediately obvious that Sandusky's alleged actions were not only "immoral" but also intuitively "illegal" under the law.  McQueary's actions and then Head Coach Paterno's actions are the focus on the "moral" question that arises next- did both fail the "moral" test when they were  not proactive to intervene to save the children being abused?

Instead of intervening physically and instantaneously, the assistant coach McQueary allegedly retreated and called his own father later the evening of the rape for advice as to what to do.  They next morning, McQueary reported the incident to Head Coach Joe Paterno.  Paterno, a day after that, reported the incident to his boss, the Penn State Athletic Director.  And so on up the Penn State chain of command.   Not surprisingly, with each reporting, hours and days pass, and the incident became less graphic, less damning, less alarming, less immediate.  Humanly tragic.

And some reporters were quick to condemn McQueary and Paterno for failing their "moral duty" of immediate action and immediate involvement of law enforcement.  Michael McDann, writing in Sports Illustrated, discusses the applicable reporting laws, and ends this segment of his longer article with the following:

"In Paterno's defense, law enforcement authorities have indicated that, in their current view, while Paterno appeared to do the bare minimum, he technically satisfied his legal obligations under the Pennsylvania Child Protective Services law.  Whether that viewpoint proves sustainable could depend on the development of new and more incriminating facts and public pressure."


This is the "moral" question all of us face every day.  Certainly in less dramatic circumstances.  but the question is there.  Do we do the "bare minimum" required by law?  Or do we do what is "morally" right?  And where do we look to find what is "morally" right?

If we are a nation of laws and not men, can we and should be look to our laws for moral guidance?

Certainly there are those who are very active in our national politics who look to their religions for moral guidance.


And if as a nation we agree that religion is a proper source for moral guidance, then what is the reason (if there is one) that Muslims should  not seek guidance in Sharia law, defined as the moral code and religious law of Islam.


I just pose the issue.  I can't answer it for you.


Sure, I want people to do the right thing, exercise their religious beliefs (or non-religious beliefs), while at the same time respecting John Adam's advice that we are a nation of laws and not men.


Read more:  http://sportsillustrated.cnn.com/2011/writers/michael_mccann/11/09/joe.paterno/index.html#ixzz1eqAjnzBs/

Just What Are the Economics?  What is the Heart of the Matter?

"Sierra Pacific's clear-cuts impoverish forests, economy" is the intriguing title to Foothill Conservancy's President's Katherine K. Evatt's op-ed piece in the Sacramento Bee (Sunday, Viewpoints, 11/20/2011). 
http://www.sacbee.com/2011/11/20/4065906/sierra-pacifics-clear-cuts-impoverish.html#storylink=misearch

Ms. Evatt effectively brings into focus several important aspects of clear-cutting Sierra forests, but she falls short of asking the tough questions that would help us get at the real heart of the matter of clear-cutting privately-owned- not publicly owned- timberlands.

A.  Foundational question:  What are the economics of clear-cutting vs. more selective timer harvesting techniques?  Apples to apples.  What are the comparative production costs?  More facts, please.

B.  Foundational question:  What are the broader adverse and beneficial consequences of clear-cutting vs. more selective timber harvesting? More facts, please.

C.  Foundational question:  Does it matter who the clear-cutting, private timber owner is? 

Ms. Evatt's piece provides some facts of the clear-cutting center to her piece:

     Sierra Pacific Industries, Inc. is what?  Privately owned corporation; its stock is not publicly traded; virtually no public financial reporting requirements; substantially owned by "Red" Emmerson, a member of Fortune Magazine's Top 400 with a net worth of $2.6 Billion; http://www.forbes.com/profile/archie-aldish-emmerson/

     SPI owns more land than any other private landowner in California- 1.7 million acres, or nearly 400 square miles.    SPI plans to clear-cut over 1 Million and has already clear-cut over 250,000 acres.:  Who pays the presumptively added costs of more selective timber harvesting techniques, the private timber owner or some larger segment society?

D.  Ultimate question:  Who pays the presumptively added costs of more selective timber harvesting techniques, the private timber owner or some larger segment of society?

One Heart of the Matter- Can Red Emmerson maximize this corporation's annual net profit at the expense of local economies, at the expense of the long term health of the forests and possibly the long term survival of the planet Earth?  Or should there be some societal input on this purely free-enterprise, capitalism vs. socialism, profit or loss decision?

Or, more basic for those of us not on the Fortune 400 list, a roof over our heads and food on the table for our families.  Yes, we all get to make those decisions, day to day.  Not just Red Emmerson. 

Easements in Nevada County:  “Can’t live with them, can’t live without them!”

First-time real estate buyers, especially buyers who are new to Nevada County, fresh up from the so-called “flatlands”, often ask themselves, “What is this ‘easement’ listed in my preliminary title report?”

Good question!  A bad answer might be, “Oh, don’t worry about that.  We see that all the time on these rural properties.  You just live with that.”

The good answer is more complicated.  Let’s start with some basics.

An “easement” is the legal (and enforceable in Court) right of some person or entity other than the owner of real property to use that real property for some limited purpose.

And, critically, an easement usually “burdens” or “encumbers” a particular property and benefits a different property.  The former is called the “servient” property or tenement, the latter is called the “dominant” property or tenement.

Usually easements are not “exclusive” but are usually “non-exclusive”.  This means that easements can be granted to more than one person or property over the same physical area (for example, an access easement to and benefitting different properties) and the owner of the property impacted by an easement can use the property—in all cases the key is there cannot be “unreasonable interference” with the permitted use of the easement.  An example of the latter would be the owner of the burdened property planting an orchard over a neighbor’s driveway easement.

Dominant (Benefited) Property Buyers:  Buyers need to be very interested in confirming that their new property has easement rights for electrical power and other utilities and access and egress.  If the property fronts on a public road, these rights are typically not in doubt.  (This is the usual “flatlander” experience, sometimes known as the “I don’t need no stinkin’ easements!” syndrome.)  If the property is accessed over private roads or power lines come in from the back or side of the property, the buyer and the buyer’s real estate agent need to pay sharp attention to these details. Easements that are conveyed to a buyer and that benefit the property being purchased may (should?) appear in the interests acquired section of the preliminary title report, with the main interest being acquired a “FEE SIMPLE” interest.

Servient (Burdened) Property Buyers:  Examples of easement purposes that might be of concern to buyers of burdened property—easements that burden or encumber the property appear in the Exceptions section of the preliminary title report: the right to use the property for a buried water line, for a buried sewer line, for overhead telephone lines or overhead power lines. Private road or driveway easements (access and egress or right of way easements) are common in rural areas. 

Some of these uses might seem harmless or even beneficial, depending on a new buyer’s values. The local water company’s (read “NID” or “Nevada Irrigation District”) rights to maintain an irrigation ditch across the property might be very aesthetically pleasing to many buyers, as well as economically valuable if pasture irrigation privileges go with the ditch located in horse country.  However, the public may have perfected rights of using the ditch-side path for walking, fishing, etc., and these rights (whether perfected or not) might prove troublesome to some buyers.

So, some initial, key questions for a buyer (and most likely at some point an eventual seller) of real property are: 

●  Uses:  What uses can the easement be used for?  What do implied uses of maintenance entail?  Digging up a leaking water line to make repairs, for example, would be an implied maintenance use.

●  Easement Owners—Who Can Use the Easement: What properties are benefited by the easement—who all owns the easement?  How many homes will use the private road for access?

●  Physical Location of Easement:  Exactly where is the easement physically located on the real property?  Does the neighbor’s sewer easement run under the newly installed swimming pool deck and cabana? Can’t tell from the title report?  Get the recorded easement document from the title company.  Still can’t tell, perhaps a surveyor needs to be retained to map it for all parties.  If the exact physical location of the easement on the burdened property is not clear from the recorded easement document, perhaps the owner of the easement will negotiate and agree to signing and recording a document that limits and locates precisely the easement to avoid future confusion and disputes—and thus increase the value of the property to a future buyer.

●   Beneficial Easements:  Does the property have all the easements you need for the uses you contemplate for the property you are about to buy?  Are there access easements all the way out to the public road—is that really a public road?  Are these easements “developed” by an actual, physical road or are the easements only lines on a paper map? Are there utility easements that connect with the property:  You’d be amazed what that last 5’ for a connecting utility easement might cost when sold by a friendly neighbor.

Knowing what easements you need as a buyer and knowing what easements are trouble in the waiting are good things.  This knowledge helps you avoid future trouble, or at the very least lets you go forward with knowledge of the risks you are taking.  You can’t avoid all risks, nor should you want to avoid all risks.  But knowing in advance what the risks are and attempting to deal with and eliminate risks, if possible, makes good sense to this country lawyer.