AmeriScan: August 10, 2007

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Maine Tribes' Sovereignty Eroded in EPA Water Case

BOSTON, Massachusetts, August 10, 2007 (ENS) - A federal appeals court on Wednesday barred two Maine tribes from regulating water quality on their reservations.

The blow to the tribes' sovereignty came one day before August 9, the annual International Day of the World's Indigenous People, marked at United Nations Headquarters in New York and at ceremonies around the world.

The Penobscot Nation and the Passamaquoddy Tribe had sought to set their own standards under the Clean Water Act. But the 1st Circuit Court of Appeals said the Maine tribes lost those powers when they settled their land claims.

Under special acts of Congress, the state's "authority far exceeds what is normal for Indian tribes to which no such legislation applies," Judge Michael Boudin wrote in the unanimous decision.

"This markedly contrasts with the status of Indian tribes in other states not subject to the settlements acts," the judge wrote.

The decision comes in a long-running battle between the tribes, the state and the Environmental Protection Agency. No one fully agreed on the extent of the tribe's rights versus the state's and the matter festered under the Clinton and Bush administrations, according to, a native American media organization that has covered the case.

The Clean Water Act empowers the EPA to issue permits for the discharge of pollutants into navigable waters. The law entitles states to administer their own permitting programs in place of the EPA's, but to do so a state must apply to the EPA. If the state has "adequate authority to carry out the described program," and other requirements are met, the EPA "shall approve" the program.

In a permitting plan submitted to the EPA, the state of Maine asserted jurisdiction over Penobscot and Passamaquoddy lands.

The tribes claimed that their sovereignty took precedence over state jurisdiction.

The EPA approved the state's plan to regulate water at 19 off-reservation sites, even though some of the sites discharge water into the Penobscot and Passamaquoddy reservations. The court ruling backed this arrangement.

But the agency blocked the state from regulating discharges at two sites owned by the tribes and reserved the right to object to future state actions that might affect tribal subsistence.

The court rejected the tribes' broad reading of their two 1980 settlement acts, citing Maine's "explicit authority over tribal lands and natural resources" under the laws.

"Maine's power over the southern tribes greatly narrows ordinary tribal sovereignty vis-a-vis state law," wrote Judge Boudin.

The court ruled that the EPA was in error about the two tribal-owned sites. Regulating water quality is not an "internal tribal matter" as that term is contemplated by the Maine settlement acts, the judge wrote.

"Discharging pollutants into navigable waters is not of the same character as tribal elections, tribal membership or other exemplars that relate to the structure of Indian government or the distribution of tribal property," he wrote.

Finally, the court said it was too early to rule on the EPA's claim that it has a general environmental trust responsibility to the tribes to protect their subsistence rights. Both tribes depend on water in the Penobscot and St. Croix rivers that will be regulated by the state of Maine.

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NAFTA Panel to Hear U.S.-Canada Gold Mine Dispute

WASHINGTON, DC, August 10, 2007 (ENS) - Next week, an international arbitration panel will hear a dispute between Canada and the United States over an open-pit, cyanide heap leach gold mine proposed but not developed in the California desert.

The arbitration is an attempt to settle a claim by a Canadian gold mining corporation that the U.S. refusal to approve its mine proposal violates the North American Free Trade Agreement, NAFTA.

In the early 1990s, Glamis Gold, Ltd. proposed the mine that opponents say would have destroyed a pristine desert wilderness area, consumed 389 million gallons of desert groundwater annually, and impacted sites sacred to the Quechan Indian Nation.

Glamis merged with another Canadian company, Goldcorp, last November, creating one of the world's largest gold mining companies with operations in Canada, the United States, Mexico, Central and South America, and Australia.

In 2001 in the last days of the Clinton administration, Interior Secretary Bruce Babbitt refused to approve Glamis's mining mining plan because of the threat it posed to the sacred tribal lands.

California later passed a law requiring open pit mines to be refilled after mining was completed, a process the company argues is too expensive to make the mine profitable.

The Bush administration reversed the Babbitt decision, but still has not issued the necessary permits. The California reclamation law is still on the books.

Glamis claims the California law and the Babbitt denial violate NAFTA, which provides special protection for the profits of foreign companies.

In July 2003, Glamis Gold filed a US$50 million claim against the United States for profits it claims to have lost as a result of the actions taken by California and the federal government to protect the environment and indigenous communities.

Although the law and regulations apply broadly to all open-pit mines and investors throughout the state, Glamis argues that federal and state actions violate two central rules in NAFTA Chapter 11: the prohibition on expropriation, and the requirement to provide "fair and equitable" treatment to foreign investors.

In 2006, environmental groups filed an amicus petition in defense of the right of the US and state governments to protect important interests, including the desert resources and Quechan sacred sites at stake in this case.

The nonprofit, public interest law firm Earthjustice says Glamis' claim "highlights the power the United States is giving foreign corporations - through trade agreements like the Peru and Panama free trade agreements Congress is presently considering - to avoid and undermine protections for the environment, indigenous rights and other public concerns."

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Channel Islands Marine Protected Area Expanded

SANTA BARBARA, California, August 10, 2007 (ENS) The federal government has added 112 square nautical miles to a network of marine protected areas surrounding the Channel Islands off Southern California.

The addition nearly doubles the area of protected underwater habitat, making it the nation's second largest marine reserve after the Northwestern Hawaiian Islands Marine National Monument.

The first half of the joint state-federal marine protected network was created by the state of California in 2003. The additions extend the protected areas into federal waters three to six nautical miles offshore of the Channel Islands National Marine Sanctuary.

"The Channel Islands marine zoning network is now the largest in the continental United States," said Daniel Basta, director of the National Marine Sanctuary Program overseen by the National Oceanic and Atmospheric Administration, NOAA.

The federal action adds nine new zones to the network - eight no-take marine reserves and one limited take marine conservation area.

"This action was developed through an eight year public process, coordinated closely with the state of California, the Pacific Fishery Management Council and NOAA Fisheries Service," said Basta.

"The countless community members who helped NOAA by providing scientific information, input and advice can be proud of this important conservation accomplishment," Basta said.

The Natural Resources Defense Council, NRDC, and The Ocean Conservancy said the move will help bring back the islands' ocean wildlife.

"We're seeing signs that the marine reserves already are succeeding," said Kate Wing, an ocean policy analyst at NRDC who has been working to protect the Channel Islands since 2000. "Now that the network is complete, we look forward to seeing even more and bigger fish in the future."

Just off the coast of Santa Barbara, the waters of the Channel Islands are frequented by blue whales, sea lions, and dolphins.

"Over the years, thousands of Californians and people from around the world have voiced their support for protecting these incredible islands," said Greg Helms, Santa Barbara program director for the Ocean Conservancy. "It's gratifying to see this legacy come true."

The federal action adds nine new zones to the network - eight no-take marine reserves and one limited take marine conservation area.

In the marine reserves all extractive activities are prohibited. In the marine conservation area, commercial and recreational lobster fishing and recreational fishing for deep water species are allowed.

The National Academy of Sciences, the Pew Ocean Commission and the U.S. Commission on Ocean Policy have all recommended that the United States safeguard key habitats and marine wildlife with protected areas.

California is creating a network of marine protected areas off its entire coast under the state Marine Life Protection Act.

When this network is in place, fishing will be limited in 22 percent of Channel Island sanctuary waters through 11 marine reserves and two marine conservation areas.

Fishing in accordance with state and federal regulations will be allowed in the remaining 78 percent of the sanctuary.

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U.S. Coast Guard Officer Indicted for Dumping Oily Waste

HONOLULU, Hawaii, August 10, 2007 (ENS) - A U.S. Coast Guard officer whose job it is to detect and prevent illegal dumping of oily wastewater into U.S. coastal waters has been indicted for lying about ordering the dumping of such wastewater from a Coast Guard vessel into Honolulu Harbor.

Chief Warrant Officer David G. Williams, Jr., the main propulsion assistant for the Coast Guard Cutter RUSH, was indicted Wednesday by a federal grand jury on two charges of obstructing the investigation into his authorization of the direct overboard discharge of bilge wastes through the deep sink into the harbor.

If convicted, Williams could face five years in prison on each count.

According to the indictment, on March 8, 2006, Williams authorized the direct discharge of bilge wastes through an "unusual and abnormal operation and configuration of engine room equipment" to pump bilge wastes overboard into Honolulu Harbor, bypassing the oily water separator system.

The oily water separator system is a pollution prevention control device used by high endurance Coast Guard cutters like the RUSH to manage accumulations of bilge wastes while underway at sea. The system collects, stores, and processes wastes to separate the water from the oil and other wastes.

On March 13, 2006, the Hawaii Department of Health received an anonymous complaint that crew members aboard the RUSH were ordered to pump approximately 2,000 gallons of bilge waste into Honolulu Harbor.

On May 1, 2006, investigators from the U.S. Coast Guard Investigative Service (CGIS) and the Environmental Protection Agency (EPA) received confirmation from Main Propulsion Division personnel who personally participated that bilge wastes had indeed been discharged through the deep sink and into Honolulu Harbor.

CGIS investigators obtained various documents from the RUSH, including engineering and ship's logs, tank level sounding sheets, and a pneumatic pump.

Untreated bilge water had been dumped on 10 occassions in 2005 when the RUSH was operating in waters off Central and South America, court documents show.

According to the indictment, when interviewed by investigators from the CGIS and EPA, Williams denied authorizing personnel to discharge bilge waste and stated that he was not aware of the pumping of bilge wastes to bypass the ship's oily water separator system.

In a second interview on May 3, 2006,

Williams changed his statement and wrote that he was "aware of the direct overboard discharge of bilge waste ... but had turned a 'blind eye' to the practice," according to court records.

The investigation is ongoing and may result in additional federal and state charges, fines and lawsuits against the Coast Guard and Williams, according to law enforcement officials. Williams has been transferred off the cutter and could face additional administrative penalties from the Coast Guard, which has not yet taken action against him in this matter.

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New Orleans Public Schools Get Federal Energy Audits

NEW ORLEANS, Louisiana, August 10, 2007 (ENS) - Energy Secretary Samuel Bodman Wednesday announced that his agency's EnergySmart Schools Program will commit up to $1.5 million in technical assistance to conduct energy audits in New Orleans' public schools.

The funds will cover up to 75 comprehensive energy audits in public schools and could identify 25 percent in potential energy savings.

Audits will include analysis of heating and cooling systems, lighting, and structural elements, such as roofing and building envelope assessments.

In support of energy efficient rebuilding in New Orleans and on the Gulf Coast, these audits will identify opportunities for New Orleans' public schools to save up to $1 million annually on utility bills.

"The Department of Energy is eager to provide assistance to New Orleans' schools to promote efficiency with safe, cost-effective and durable technologies," Bodman said.

The first round of audits was completed last week by a team of Department of Energy, DOE, experts.

Secretary Bodman announced the funding while visiting the Pierre A. Capdau Charter School in New Orleans, one of the first schools in the recovery area to receive a comprehensive energy audit.

P.A. Capdau is one of many local schools vying to install 25 kilowatt solar panel systems. These installations are expected to offset a save each school about $4,000 annually on utility bills.

DOE will assist in the design of new schools that are 30 percent more efficient than current building codes. EnergySmart schools can be constructed and operated on a cost-neutral basis where the energy savings offsets any upfront costs.

Secretary Bodman also announced the upcoming release of The Advanced Energy Design Guide for K-12 School Buildings, a collaboration between the Department of Energy, the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, the American Institute of Architects, the U.S. Green Building Council, and the Illuminating Engineering Society of North America.

The guidelines are for those designing and building schools that would achieve at least 30 percent energy savings above typical building codes.

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Scientists Target Future Pandemic Strains of H5N1 Bird Flu

BETHESDA, Maryland, August 10, 2007 (ENS) - Preparing vaccines and therapeutics that target a future mutant strain of H5N1 avian influenza virus may be possible, even though such a strain does not yet exist, according to a team of federal government scientists.

To date, avian influenza has killed or caused to be culled hundreds of millions of birds, mostly chickens, ducks and geese, but it is mostly a disease that affects birds.

Worldwide, 319 human cases have been reported, and of these, 192 people have died, according to the World Health Organization.

But health experts are concerned that the H5N1 virus, given enough opportunities, will change into a form that is highly infectious for humans and spreads easily from person to person.

Such a change could mark the start of a global outbreak - a pandemic.

Success hinges on anticipating and predicting the crucial mutations that would help the virus spread easily from person to person, the scientists said today.

Led by Gary Nabel, MD, director of the National Institute of Allergy and Infectious Diseases' Dale and Betty Bumpers Vaccine Research Center, the team reports in the August 10 issue of the journal "Science" that they have developed a strategy to generate vaccines and therapeutic antibodies that could target predicted H5N1 mutants before these viruses evolve naturally.

This advance was made possible by creating mutations in the region of the H5N1 hemagglutinin protein that directs the virus to bird or human cells and eliciting antibodies to it.

"What Dr. Nabel and his colleagues have discovered will help to prepare for a future threat," says Elias Zerhouni, MD, director of the National Institutes of Health.

"While nobody knows if and when H5N1 will jump from birds to humans, they have come up with a way to anticipate how that jump might occur and ways to respond to it," Zerhouni said.

"Now we can begin, preemptively, to consider the design of potential new vaccines and therapeutic antibodies to treat people who may someday be infected with future emerging avian influenza virus mutants," said NIAID Director Anthony Fauci, MD.

"This research could possibly help to contain a pandemic early on."

Dr. Nabel's team vaccinated mice with material from viruses they altered to contain the mutant receptors, and they discovered one broadly reactive antibody that could neutralize both the bird and human adapted forms of an H5N1 virus.

Dr. Nabel said their findings should contribute to better surveillance of naturally occurring avian flu outbreaks by making it easier to recognize dangerous mutants and identify vaccine candidates that might provide greater efficacy against such a virus before it emerges.

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FDA Warns Against Red Yeast Rice Products Sold Online

ROCKVILLE, Maryland, August 10, 2007 (ENS) - The U.S. Food and Drug Administration is warning consumers not to buy or eat three red yeast rice products promoted and sold on the Internet.

Promoted as dietary supplements for treating high cholesterol, the products may contain an unauthorized drug that could be harmful to health, the agency said today. They are being marketed in violation of the Federal Food, Drug, and Cosmetic Act.

The potentially harmful products are Red Yeast Rice manufactured by Nature's Value Inc., and Red Yeast Rice/Policosonal Complex, manufactured by Kabco Inc. Both are sold by Swanson Healthcare Products, Inc.

The third potentially harmful product is Cholestrix, sold by Sunburst Biorganics.

FDA testing revealed the products contain lovastatin, the active pharmaceutical ingredient in Mevacor, a prescription drug approved for marketing in the United States as a treatment for high cholesterol.

"This risk is even more serious because consumers may not know the side effects associated with lovastatin and the fact that it can adversely interact with other medications," said Dr. Steven Galson, director of the FDA's Center for Drug Evaluation and Research.

These red yeast rice products are a threat to health because the possibility exists that lovastatin can cause severe muscle problems leading to kidney impairment.

This risk is greater in patients who take higher doses of lovastatin or who take lovastatin and other medicines that increase the risk of muscle adverse reactions.

These medicines include the antidepressant nefazodone, certain antibiotics, drugs used to treat fungal infections and HIV infections, and other cholesterol lowering medications.

FDA has issued warning letters advising Swanson and Sunburst Biorganics to stop promoting and selling the products.

Companies that do not resolve violations in FDA warning letters risk enforcement actions, such as an injunction against continuing violations and a seizure of illegal products.

The FDA advises consumers who use any red yeast rice product to consult their health care provider and to report adverse events related to these products to MedWatch, the FDA's voluntary reporting program at:

Copyright Environment News Service (ENS) 2007. All rights reserved.