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Forest Service Lawsuit
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BigAl



Joined: 21 May 2012
Posts: 46
Location: N San Juan, Ca

PostPosted: Sat Nov 29, 2014 5:43 pm    Post subject:  Reply with quote

So the Gov's attorney answered on the last day possible, no surprise there. After basically denying everything they could they claim three defenses.

First, Ripeness, as the Forest Service was given the chance to fix their screw-up. and the administrative claim was filed in a timely manner which they did not respond to for almost a year. I do not think a judge will buy that.

Next, they are trying to say Tort and Due Process claims do not belong in Claims Court, since the case is of a constitutional nature and over ten thousand dollars it does belong in claims court according to the Eastern District Judge where we filed first.

And they are saying thirdly that it should be dismissed for failure to state a claim upon which relief can be granted.

You can read my complaint above, I believe I more than covered that. BigAl
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Abram



Joined: 03 Mar 2015
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PostPosted: Tue Mar 03, 2015 2:57 am    Post subject: Reply with quote

Well it sounds interesting and can be used as knowledge.The most basic thing is to understand the maximum through it which is the way for getting better with the learning and surely an improvement graph should be in our outcome.
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BigAl



Joined: 21 May 2012
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Location: N San Juan, Ca

PostPosted: Tue Mar 24, 2015 3:47 pm    Post subject: Reply with quote

Hi Everyone, quick update, we have received over 900 pages of Government "disclosed" evidence. Most of it we already had from the freedom of information act we filed. We file our 2nd joint status report this Friday. The Government will be filing it's brief in about 40 days. Keep up the fight for our rights. For those who have not seen it, Sheriff Gil Gilbertson's report is well worth reading, and the Congressional record he cites. The record is about the road in Elko Nevada the Forest Service tried to close, and very plainly lays out the difference between Public Land, and Public Domain. And the fact that the Forest Service has no right to manage Minerals. BigAl
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GoldPatriot



Joined: 30 Dec 2011
Posts: 219
Location: Waldport, Oregon

PostPosted: Wed Mar 25, 2015 1:06 pm    Post subject: Reply with quote

Al;

Is there a legal reason why you did not include the individual employees of the government, that acted unlawfully against you and your claims?  I hope you know, that employees can be held both civilly and criminally liable for their individual acts, in addition to their employers.

Until we put the fear of God in the minds of state and federal employees, by putting at risk their personal freedom, wealth and assets at risk, you'll find that they believe themselves bullet proof for their unlawful deeds.

You still have the right to amend your case to include each actor, which has no legal shield to hide behind and as a bonus, each will be required to hire their own legal counsel at their expense (as the government can not - will not provide legal counsel.

I believe it's only fair that if you must pay to defend your property and rights, the government and their employees pay to defend themselves.

I have had a great deal of luck when I file suit against the government and include the employee actors, the bluster and steam seem to devolve the government's attitude that they are invincible.

Always keep in mind that while you may lose a claim and or the income from that claim, the government and their employees have far more to lose in the long run.

Once federal and state employees understand that they can be personally held accountable for their actions, both civilly and criminally, they have a tendency to refuse to conduct illegal actions again the public.

I live by a simple rule... I don't pick fights, but I will use every tool in the book to destroy those that pick a fight with me.

What the government did and sponsored their employees to do to you, was clearly not an accident or error.  Not only was it done with malice, their actions to date continue to be done with malice, in the effort to continue to hurt you in any way they can.

Take your gloves off, as the government already has.

Best of luck.  Keep us all updated if you can.
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BigAl



Joined: 21 May 2012
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Location: N San Juan, Ca

PostPosted: Wed Mar 25, 2015 6:14 pm    Post subject: Reply with quote

Hi GoldPatriot. One thing I have learned, to late for this case, is to file first in the court of Federal claims, then a couple of days later file in the district court. That way you can get around the "you can't be in both courts" rule.

My partner and I considered a Bivins action when all this first started, if I had known what I know now, back then I would have.

At the beginning we did sue each of them in their official capacity, the court dismissed that and left the government as the defendant.  We are so close to the end of this my partner and I just want to finish it.

Thanks for the advice, I have learned a huge amount of what my rights and what the law is on this forum. BigAl
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GoldPatriot



Joined: 30 Dec 2011
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PostPosted: Wed Mar 25, 2015 10:26 pm    Post subject: Reply with quote

Al;

I do in fact understand your position. Just remember, that once this case is over, you still retain the right to recover your damages from the employees, even if its a separate action.  Be VERY careful what you are asked to sign, post judgement.  DO NOT WAIVE ANY RIGHTS YOU HAVE UNDER THE LAW.

Also, don't be surprised if they take you off their Christmas card list.

As always, good luck and good hunting!

Den
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BigAl



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PostPosted: Tue Aug 11, 2015 8:50 pm    Post subject: Reply with quote

Hi All, The Government has filed it's Motion for Summary Judgement, I will be Mailing my cross motion for summary judgement in a couple of days. the Gov then has 20 days to answer that, then I have 20 days to get the last word in. The Govs Motion was very weak, the cases they cited actually help me more than the govs position. Allen
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BigAl



Joined: 21 May 2012
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PostPosted: Wed Sep 30, 2015 6:18 pm    Post subject: Reply with quote

Plaintiffs hereby respectfully submit this reply to defendant’s response to plaintiffs’ motion for summary judgement.
MEMORANDUM OF POINTS AND AUTHORITIES
ARGUMENT
1. Defendant has waived objections to this Court’s jurisdiction.

Defendant makes a number of jurisdictional claims both in defendant’s motion for summary judgment and in reply to plaintiffs’ cross-motion for summary judgment. Defendant’s challenges to this court’s jurisdiction, however, have been waived. Rule 12 (b) of the Federal Rules of Civil Procedure provides in pertinent part:
Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.

Defendant failed to challenge this Court’s jurisdiction before filing an answer to plaintiffs’ complaint; therefore, defendant has waived any claim to this Court’s jurisdiction.
2. Defendant’s arguments are based on an incorrect legal
principle—that no “takings” occurred if plaintiffs have
any physical access whatsoever to the mines. That is not
the law and should not be applied by this Court.

Assuming the Court considers defendant’s arguments on the merits, defendant incorrectly argues that because plaintiffs have “enjoyed uninterrupted access to their unpatented mining claims” no “takings” has occurred. (Doc. 18 at p. 5.) Defendant’s argument is incorrect and unsupported by any applicable legal authority. On the contrary, the authority cited by defendant as controlling on the “takings” issue actually contradicts defendant’s argument and supports plaintiffs’ position. For example, defendant’s authority recognizes that a “takings” occurs ‘where the government denies all meaningful access to the claimant's private property.’ (Cites omitted; Doc. 18 at p. 7. Italics added.) This is exactly what occurred in this case as established by the undisputed evidence, which defendant has not contested. Plaintiffs have been deprived of all "meaningful access" to the mines. They are unable to install and operate mining equipment in order to operate the mines and, consequently, the mines have no "economic value," a fact not disputed by defendant.
Defendant persists with the argument that a “takings” occurred only if plaintiffs can establish a denial of “complete access” to their mining claims. There is no authority for this contention. That is not the law, and this Court should not apply it. Defendant’s argument was rebuked by the court as far back as 1981: “[D]efendant does not analyze the legal issues correctly and misconstrues the authority on which it relies.” Laney v. United States, 661 F.2d 145, 148 (Fed. Cir. 1981).
The correct legal standard for determining whether a “takings” occurred in this case is whether plaintiffs were denied “meaningful access.” As the court in Laney explained: “We hold, therefore, that defendant is not entitled to summary judgment on its motion because the known facts do not exclude, though they do not establish, the conclusion that defendant has effectively denied all meaningful access to the island, with the purpose and effect of preventing all economic use and holding it as a scenic preserve without paying for it.” Id. at p. 149. Emphasis added. Thus, the extent to which "economic use" has been prevented is clearly a relevant consideration in determining whether “meaningful access” has been denied and thus whether a "takings" has occurred. Defendant has offered no evidence whatsoever to contest plaintiffs' assertion that they have been denied “meaningful access” and that the mines have been rendered economically worthless.  Defendant’s assertion that plaintiffs can engage in “prospecting and sampling” is not supported by any evidence submitted by defendant, irrelevant under the law and ignores the undisputed reality that due to defendant’s construction and destruction on plaintiffs’ mining claims, plaintiffs have been completely prevented from ordinary mining activities, denied “meaningful access” to their claims, and have been deprived of all economic use of the mines.
Furthermore, Laney addressed and rejected defendant’s current contention that “complete” access must be denied. “The above discussion focuses on the issue of access to, but we do not now hold that the involved regulation is necessarily not a taking if access is not wholly cut off.” Ibid. Italics added. Defendant's incorrect and improper arguments regarding "complete" access must be rejected.
According to one of the cases cited by the government, "There are two well recognized situations where the government will be held to take without any formal expropriation or physical invasion. One is the actual cutting off of access. Laney v. United States, Ct.Cl. No. 130-80L (slip opinion of August 19, 1981); Foster v. United States, 221 Ct.Cl. 412, 607 F.2d 943 (1979); Drakes Bay Land Co. v. United States, 191 Ct.Cl. 389, 424 F.2d 574 (1970); Pete v. United States, 209 Ct.Cl. 270, 531 F.2d 1018 (1976). The other is when the government regulation is practically so burdensome and pervasive that the landowner is denied all use of his land." Alex J. Armijo v. U.S. 663 F.2d 90 at p. 93 (Fed. Cir. 1981). Defendant ignores the undisputed facts that defendant has caused a material and "formal expropriation or physical invasion" of land and is arguing the "access" cases as if no "formal expropriation or physical invasion" had occurred—as if the government had passed a regulation preventing plaintiffs from using or gaining access to the land. That is not the case. The government has caused a physical expropriation and material interference with the operation of plaintiffs’ mining operations and infrastructure. Thus, the denial-of-access rationale does not apply, because by installation of the bat doors and other construction and destruction performed by the government, there has been a material, extensive and "formal expropriation or physical invasion."  Laney, supra. This “expropriation and physical invasion” has deprived plaintiffs of “meaningful access” and thus constitutes a “takings.”
Moreover, the cases addressing "denial of access" use the phrase “meaningful access,” as explained above and expressly reject defendant’s contention that a government “takings” that leaves “any” access whatsoever does not result in a “takings.” Laney v. United States, supra, 661 F.2d 145, 149 (Fed. Cir. 1981).
Even if the "access" principles are applied, plaintiffs have still been denied “complete access” to operate the mines. As explained by Alex J. Armijo v. U.S., supra, "In such cases [denial of access] the characteristic feature is the defendant's use of rightful property, contract, or regulatory rights to control and prevent exercise of ownership rights the defendant is unwilling to purchase and pay for." Alex J. Armijo v. U.S., supra, 663 F.2d 90 at p. 93 (Fed. Cir. 1981) (Emphasis added.) This is exactly the situation in this case.
Mr. Brown's declaration (offered by defendant) contains no facts addressing the decrease in the "economic" value of the mines, and to what extent the economic use has been limited by installation of the bat gates and the other construction and destruction discussed in the plaintiffs’ declarations. Therefore, Mr. Brown’s declaration is completely insufficient to support the government’s motion and likewise insufficient to oppose plaintiffs’ cross-motion.
The undisputed facts conclusively establish that defendant’s installation of “bat gates” and other structures in the mines and complete destruction of mining infrastructure owned by plaintiffs have rendered the mines completely inoperable and of no economic value. (Decl. of Allen D. Hall.) Accordingly, defendant’s activities, which have rendered the mines closed and completely inoperable have deprived plaintiffs of any economic use whatsoever of the mine, and have “materially interfered” with plaintiffs’ mining operations and constitute a “takings.”
The Court should grant plaintiff’s cross-motion for summary judgment on the “takings” claim.

3. The Court has no jurisdiction to adjudicate defendant’s
arguments concerning the alleged requirement that
plaintiffs must have a “plan of operations.”

Interestingly, defendant argues that the Court has no jurisdiction to address plaintiffs' claims that the Forrest Service was negligent and trespassed on plaintiffs’ mining claims, but apparently has jurisdiction to adjudicate defendant's argument that plaintiffs were required to submit a "plan of operations" to the Force Service in order to conduct mining operations. Doc. 18 at pp. 10-11 and fn. 3. Defendant fails to explain how the Court has jurisdiction to adjudicate defendant’s defenses, but none to adjudicate plaintiffs’ claims. According to defendant, the Court has jurisdiction to consider the merits of defendant's argument that plaintiffs were required to submit a "plan of operations” to the Forest Service, but has no jurisdiction to consider the merits of plaintiffs' argument that the Forest Service was negligent or trespassed on plaintiffs' mining claims. To plaintiffs’ knowledge, the Court’s jurisdiction is not that malleable.
At any rate, the law does not require plaintiffs to submit a “plan of [mining] operations” to the Forest Service for approval before beginning mining operations. A “plan of operations” is not required for subsurface operations under title 36 CFR section 228. Subsurface or underground mining is exempt from a “plan of operations,” as it is not under the Forest Service’s Authority to manage. The Forest Service has been given the authority to manage only the vegetative surface, and other surface resources on an unpatented mining claim. Title 16 U.S.C § 472 clearly limits the Forest Service’s authority to regulate mining operations:
The Secretary of the Department of Agriculture shall execute or cause to be executed all laws affecting public lands reserved under the provisions of section 471 [1] of this title, or sections supplemental to and amendatory thereof, after such lands have been so reserved, excepting such laws as affect the surveying, prospecting, locating, appropriating, entering, relinquishing, reconveying, certifying, or patenting of any of such lands.

a. The “Plan-of-Operations” issue is irrelevant.
The issue whether a "plan of operations" is required is irrelevant to the "takings" issue. Defendant's undisputed actions of tearing down and destroying the mining infrastructure owned by plaintiffs, installation of bat gates, pouring of concrete and installation of other structures which prevent plaintiffs from operating the mines either was a "takings" or was not. This issue is completely separate from whether any "plan of operations" is required. Even if plaintiffs had secured a “plan of operations,” they still would not be able to operate the mines and would be in no better position than they are currently.
As established in plaintiffs’ cross-motion for summary judgment and as argued above, even if defendant’s “plan-of-operations” argument is considered, the Forest Service's authority is secondary to mining operations:
This language, carefully developed, emphasizes the committee's insistence that this legislation not have the effect of modifying longstanding essential rights springing from location of a mining claim.   Dominant and primary use of the locations hereafter made, as in the past, would be vested first in the locator; the United States would be authorized to manage and dispose of surface resources, or to use the surface for access to adjacent lands, so long as and to the extent that these activities do not endanger or materially interfere with mining, or related operations or activities on the mining claim.  

United States Department of the Interior Office of Hearings and Appeals Interior Board of Land Appeals v. Robert E. Shoemaker,  supra, 110 IBLA 39  *50-*51. Emphasis added.
As the Shoemaker Court further explained:
The balance it struck in order to resolve such conflicts was to specify that the authority the statute granted would apply only so long as and to the extent that Federal use of the surface did not "endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto."   30 U.S.C. § 612(b) (1982); see United States v. Curtis-Nevada Mines, Inc., 611 F.2d at 1283, 1285.   When it does, Federal surface management activities must yield to mining as the "dominant and primary use," the mineral locator having a first and full right to use the surface and surface resources.


United States Department of the Interior Office of Hearings and Appeals Interior Board of Land Appeals v. Robert E. Shoemaker, supra, 110 IBLA 39  *53. Emphasis added.
Defendant cannot escape the clear, unmistakable, indisputable truth that the law bars the Forest Service from enforcing regulations that “materially interfere with mining, or related operations or activities on the mining claim” and that “management activities must yield to mining as the "dominant and primary use.” Defendant’s efforts to invert this relationship to make plaintiffs’ mining operations subservient to the Forest Service’s regulations cannot succeed.  
According to defendant’s analysis, however, this Court lacks jurisdiction to adjudicate issues concerning the propriety of the Forrest Service’s actions, which necessarily include whether a "plan of operations" is required. Ultimately, whether the Forest Service may legitimately require a "plan of operations" is beside the point. Any “plan of operations” that might be required cannot “materially interfere” with mining operations—but even if such a plan were required, defendant's actions either constituted a "takings" or they did not. The undisputed evidence in this record establishes that a "takings" occurred.
The Court should deny defendant’s motion for summary judgment and grant plaintiffs’ cross-motion for summary judgment.
3. The “takings” claim should not be dismissed on the
ground that plaintiffs claimed the Forest Service’s
actions were unauthorized.

Assuming for the sake of argument only that the tort and due process claims should be dismissed, it does not follow that the "takings" claim should also be dismissed. Plaintiffs' "takings" claim was already presented to the Federal District Court for the Eastern District of California and dismissed after that court concluded that the "takings" claim would be properly filed in this Court. Plaintiffs' "takings" claim is now properly before this Court and should be adjudicated on the merits.
Plaintiffs' claims that the Forest Service’s actions were unauthorized and trespassed on plaintiffs' mining claims does not deprive this Court of jurisdiction. Plaintiffs have clearly alleged a "takings" claim in addition to the tort and due process claims.
Defendant's argument that an unauthorized act cannot form the basis of a "takings" claim should be rejected, because defendant has already conceded that defendant was purporting to act in conformance with the "American Recovery and Reinvestment Act of 2009" when it installed the bat gates and took the other actions that deprived plaintiffs of “meaningful access” to operate the mines. (Def. mot. for Summary Judgment, Doc. 16 at pp. 9-14.)
As the court explained in Del Rio Drilling, Inc. v. U.S. 146 F.3d 1358 (Fed. Cir. 1998) at pp. 1362-1363, the government’s mere technical violation of the law does not necessarily mean that no “takings” occurred:
       In holding that ultra vires conduct cannot give rise to a Fifth Amendment taking, the courts have drawn an important distinction between conduct that is "unauthorized" and conduct that is authorized but nonetheless unlawful. Merely because a government agent's conduct is unlawful does not mean that it is unauthorized; a government official may act within his authority even if his conduct is later determined to have been contrary to law.… ("Not all illegal acts of government officials are considered unauthorized for the purpose of determining the government's liability to pay compensation under the Tucker Act.... Recovery under the Tucker Act has been permitted when a taking by an officer is the natural consequence of congressionally approved measures or the result of an exercise of discretion granted to an official for the implementation of a congressional statute.").
       While this court has on occasion referred to "invalid" or "illegal" government conduct as "unauthorized" for purposes of determining whether the conduct may give rise to Tucker Act liability, see Short v. United States, 50 F.3d 994, 1000 (Fed.Cir.1995); Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed.Cir.1993), we understand those references to require a showing that the conduct was ultra vires, i.e., it was either explicitly prohibited or was outside the normal scope of the government officials' duties. Neither the Supreme Court nor this court has held that government conduct is "unauthorized," for purposes of takings law, merely because the conduct would have been found legally erroneous if it had been challenged in court.

Accordingly, the fact that the Forest Service's actions may have been “unauthorized” does not mean that no "takings" occurred. Defendant has already explained in lengthy detail that defendant acted in conformance with the "American Recovery and Reinvestment Act of 2009." Therefore, defendant's conduct was "authorized," even if unlawful.
CONCLUSION
Defendant’s contentions that no “takings” occurred have no merit. Under the correct legal standard, plaintiffs have been denied "meaningful access" to their mining claims. Moreover, there has already been a "formal expropriation and physical invasion" of the mine, so the rationale of “access” principles does not apply, but even if they do, there was still a "takings" because the bat gates and construction and destruction performed by defendant constitute a “material interference” with plaintiffs’ mining operations, have deprived plaintiffs of "meaningful access" and have completely eliminated plaintiffs’ capacity to operate the mines, obliterating any economic use or benefit.
Additionally, whether the Forest Service had the authority to require a "plan of operations" is irrelevant. The law is clear that the Forest Service may not enforce regulations that “materially interfere” with mining operations. Even if a “plan of operations” could be required, plaintiffs would be in no better position than they are now, because the mines have been destroyed, closed and rendered economically worthless.
Furthermore, the “plan-of-operations” issue is irrelevant, because either a “takings” occurred or did not occur. The undisputed evidence conclusively establishes that defendant's actions constituted a compensable "takings."
The Court should reject defendant's suggestion to exercise jurisdiction selectively in defendant’s favor—to adjudicate defendant's arguments regarding the Forest Service’s rights and duties under the regulations but decline jurisdiction to adjudicate plaintiffs' tort and due process claims. If there is no jurisdiction for plaintiffs' tort and due process claims, there is no jurisdiction to adjudicate defendant's arguments regarding a "plan of operations." In any event, plaintiffs’ “takings” claim survives on its own, regardless of the tort and due process claims.
Finally, defendant has already explained and conceded that defendant was acting pursuant to an act of Congress when it installed the bat gates, poured concrete and destroyed plaintiffs' mining infrastructure. Defendant acted lawfully for purposes of this "takings" claim.
For all the foregoing reasons, the Court is respectfully requested to deny Defendant’s motion for summary judgment and grant Plaintiffs’ cross-motion for summary judgment.
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BigAl



Joined: 21 May 2012
Posts: 46
Location: N San Juan, Ca

PostPosted: Wed Sep 30, 2015 6:24 pm    Post subject: Reply with quote

The above posted response is the last one, now the Judge will make her decision on liability for this phase of the case. She should find in our favor on the liability issue, then we have one last hurdle, passing the "prudent man" test and the "marketability" test that the Government will require before monies can be paid for a "takings" of a claim. BigAl
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GoldPatriot



Joined: 30 Dec 2011
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PostPosted: Thu Oct 01, 2015 2:16 am    Post subject: Reply with quote

BigAl;

I like your proffer a great a deal. You have properly laid the groundwork that out flanks the government at every turn, legally.

Looking ahead, should you win the summary judgement, you are right that your work is not finished and you'll need to establish your losses next.

I would advise that any and all prior mining records of your claim should be re-established before the court.  Of course any and all assay reports will aid in your claim against the government.

If you don't already have a mining plan, I would develop one that can be entered into the court process.  I would think you would have had the biggest, fastest and highest yield mining equipment, that would have provided you with $$$$$ annually, from the date of the "taking" forward to the estimated date that you would have exhausted the mineral wealth of your claim.

Add to that, the value of the "working" claim, if based on the assay reports, you mined x number of tons per hour, 24 hours a day, from the "Taking" to the present.  The fact is, a closed claim is worth very little, compared to a active mine that is producing profits.

Of course, there is nothing to prevent you from demanding that the government, at their expense, remove any and all unlawful improvements and bring the claim back it it's pre-invasion condition, complete with buildings, equipment and other assets you had before the "Taking".

I would also suggest a permanent injunction against any further action by the offending agency and or it's employees, agents or contractors for a minimum of 20 years, without a court order.

Thanks for updating the Forum and best of luck my friend!

Den


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