Tuesday, November 23, 2010
Conflict Between Fools
| Ash Palaise has had a problem with Frank Fenderbender! Ash posted his pdf on how to build a cloudbuster on his own website, with a warning it should not be distributed because of the danger of too many people doing cloudbusting. Frank ignored that and copied it to his own website, where it is openly available to anyone. Ash objected to this theft of copyrighted information and ordered him to take it down. Frank refused and told him it should be public knowledge. Ash, as he usually does, got furious and was foaming at the mouth, making threats of violence, lawsuits, and anything else he could think of. Frank was insisting cloudbusting was public domain since Reich had published how to do it, so nobody has a right to keep any information on it secret. Frank is obviously not at all concerned about irresponsible cloudbusting and thinks everything should be public knowledge. Ash is afraid of losing control of his own writings and seems not to realize he himself is so ignorant of cloudbusting that he should not be doing it either. Both of them are insane. They deserve each other. But this shows how difficult it is to keep any information private once it has been posted on the internet. The details of how to build a cloudbuster are already known to the very people who should be least trusted with them. |
Cold Spell
| At this writing, most of the Northern Hemisphere is undergoing a severe cold spell. Unprecedented cold weather, accompanied by unusual amounts of snow, grips most of Europe, North America, parts of Asia, and reaches as far south as Yucatan. This weather event is being used by the anti-global warming movement as evidence that global warming is a myth. They fail, as usual, to admit that discussion of climate change is about long-term averages, not any single weather situation, no matter how dramatic, and that no single cold spell, no matter how cold or how unusual, can disprove the global warming hypothesis. The conventional theory of the atmosphere ignores orgone energy and considers the atmosphere as a "heat engine", driven by differences in temperature. This is easily disproven by a consideration of the cloudbuster, which can be clearly seen to alter the direction of movement of huge air masses, consisting of tons of air and water vapor, without any perceptible heat being involved. If the "heat engine" theory were correct, the cloudbuster could not possibly have any effect on atmospheric motion. So what is now happening in the atmosphere is independent of the global warming theory and the so-called "greenhouse gases" that it entails. The explanation must be sought in the orgonomic understanding of how the atmosphere functions and how it responds to different stimuli. Cold weather is caused by a contraction. The atmosphere can be made to contract by drawing from verticle with a cloudbuster. It also can be made to contract toward the equator by drawing from the pole, bringing colder air from the polar region toward the equator. And it also will contract when exposed to certain levels of radioactive irritation, a circumstance that also causes a negative To-t reading in an orgone accumulator. Such a negative reading has been observed in a well-equipped laboratory in Central Europe over the past several days, while the current cold spell has been underway. While certain features of the hemisphere-wide cold spell seem to indicate the contraction is caused by a cloudbuster attack on the jet stream, this negative To-t would indicate a nuclear event of some sort that has not been reported in the press. Some accident at a nuclear power plant or military base, perhaps. And of course, it is entirely possible that both types of cause are involved, having a synergistic effect in total. In any case, there must be some orgonomic explanation because if fluctuations of the atmosphere are caused by fluctuations of the underlying orgone field, there must be an orgonomic explanation for anything the weather does. And right now I can think of no environmental problem so great or so pressing as this one. Finding out what is the immediate cause of the disruption of the atmosphere is the first step in finding a solution to the problems it brings, and developing a solution to this problem is the most pressing and important challenge of our times. I propose a working group be formed to brainstorm about this topic over the internet. A lot of hard thinking about the subject is sorely needed and certainly could not do any harm. |
Monday, November 22, 2010
Why Some People Believe In Some Methods Of Weather Control
| This is the most probable explanation for the perceived effectiveness of the Croft chembusters and other such devices. In my opinion, it is also the most probable explanation for the claims of David Wells and his associates for his weather-control machine. The effectiveness of the Reich cloudbuster is of a whole other order. The observations of the cloudbuster extend to poking holes in specific clouds in exactly the pattern of the cloudbuster tubes, time-lapse photography of the cloud aimed at falling apart with other, unaffected clouds in the same frame, statistical studies, correlated Geiger-counter readings, correlated tree-potential readings, correlated light-meter readings, and several other phenomena. In addition, cloudbuster effects have often been noticed by people not involved in the operations and not aware of them at the time they made the observations. The cloudbuster is as well confirmed as any phenomenon known to science. No other claimed method of weather modification is yet known that cannot be better explained by the mental processes described below.
|
Sunday, November 21, 2010
HAARP
Dear Mr. Snow, ,
Thank you for your comments on the post I sent out this morning.
To answer your questions, one of the most often heard bits of nonsense about the alleged secret military weather control weapon is that the HAARP antenna array in Alaska is an "atmospheric heater", and that by radiating enormous amounts of energy into the upper atmosphere, it can cause designated sections of the atmosphere to lift and thus divert weather systems and steer them around at will.
Examine this claim closely, please. Microwaves do not heat air. They heat water. The upper air is bone dry. There is no way any amount of microwave radiation could heat it in any significant degree. Furthermore, the inverse square law would rule out any noticeable amount of heating from a ground-based antenna. By the time the beam got to the upper levels of the atmosphere, it would not suffice to cook a meal, let alone lift tons of air.
The upper atmosphere is far below freezing. To heat a cubic meter of it, with the heat radiating away into the surrounding cold air as you did so, would require the entire power output of the North American Power Grid and then some, to get any noticeable effect on temperature, even if microwaves could heat dry air, which they cannot.
When you point this out to the conspiracy theorists, they then go on to claim two: that aircraft are being used to disperse alluminum chaff into the atmosphere to reflect the microwaves and increase the effect.
Alas for the conspiracy theory; the amount of energy remains the same and cannot be increased by reflection. There is no material which can reflect any form of radiation in such a way as to increase the total amount of energy obtained.
Unless one is willing to postulate that the HAARP installation is equiped with some radical new power source which produces enormous amounts of power, far beyond anything currently known, there simply is no way it can heat the upper atmosphere enough to be even detected. let alone direct weather systems as claimed by the conspiracy theorists.
It is true the term "atmospheric heater" does appear in the patent application for the antenna, and that "weather control" is included in the rather long list of potential applications of the device, but that is nothing but the normal way a patent application is written. The object is to cover all the bases, including everything you can think of that someday may possibly be developed, so if someday, somebody ever does succeed in doing anything like that, you have the prior claim on file. This is a standard legal trick of patent lawyers, and should not be taken to mean there is actually any such technology already operational.
Furthermore, weather systems exist down here in the tropisphere, not up in the stratisphere where the HAARP array is allegedly focused, and which it is allegedly heating. Any heating of the stratisphere would have only minimal effects on weather in the tropisphere anyway.
All this is what anyone with any elementary knowledge of physics would immediately tell you, without even going into the orgonomic understanding of how the atmosphere functions. The conspiracy theorists who boldly proclaim that they have deduced from public Patent Office records and public speaches that a secret program to control weather by such means exists and is already in operation are simply displaying their total ignorance of both elementary physics and elementary logic.
All of which is quite aside from the fact that the well-attested fact that the Reich cloudbuster DOES have very pronounced effects on the atmosphere is conclusive evidence that the atmosphere is not a "heat engine", as conventional science would have it, but is driven primarily by orgone energy fluctuations, since the cloudbuster could not function otherwise.
And if the motions of the atmosphere are caused by orgone energy motions, as the effect of the cloudbuster demonstrates, no amount of heating could have much impact on them anyway.
I hope this makes clear why I do not accept the claims of the existence of any weather control program like that described in the extensive literature of alleged secret military projects even being remotely possible as a future development, let alone being already operational.
One other thing: Back in the early 90s, I wrote one of the first articles on the HAARP project. I read the patent, interviewed Bernard Eastland by phone, and later sent my notes and accumulated research materials to Jeane Manning, with the suggestion she look into it and write something on it. She contacted her friend, Nick Begich, who lived in Alaska, and the Book, Angels Don't Play This HAARP, was the result. I am the person described in the introduction to that book under the pseudonym Gregory Jones. So that book was written at my instigation. ( Though it does draw some conclusions which I disagree with.)
So I can make some claim to being an expert on this subject. In short, I have far more credentials for making pronouncements on this subject than almost any of the numerous authors who so confidently insist that such a secret plot to control weather is not only possible, but in operation at the present time.
I hope this answers your questions about why I hold the views I do on the subject.
Scientists And Farmers
I have spoken to many scientists about orgonomy over the years, and my over-all impression is that the people who become scientists are doing so with the specific intention of avoiding any experience of the life energy. Not only the training of a scientist, but also the selection process of who shall become one, prevents any signioficant number of them from understanding orgone.
Modern scientific theories are nothing but rationalizations to enable scientists to avoid thinking about orgone. It is not a matter of information. It is a defense mechanism that cannot be overcome by more information or by any kind of evidence that orgone exists.
There are a few exceptions, like Bernard Grad, but most scientists are no more likely to become converted to orgonomy by evidence than most Jesuits are to become Buddists. And for exactly the same reasons.
So forget the scientists. I would rather demonstrate cloudbusting to children and adolescents, who are still capable of learning about it.
So I do not care if soil chemists could find something they would not understand in an area where cloudbusting had been going on. And I see no reason to involve meteorologists in cloudbusting either. They would only get in the way.
As for the involvement of the agricultural interests you suggest, that thought scares me. Farmers are the root cause of most opf the problems on this planet, and farming must be ABOLISHED, not encouraged. Farmers are the very worst people to try to get interested in cloudbusting.
Farmers typically care only for their own farms, and not at all for the surroundings, especially wildlife. And farmers, anywhere, in any place, in any time, over the past 5,000 years, are always the most rigid, repressed, hide-bound, traditionalists of any group.
Farming could not exist in an unarmored, healthy people. Farming both needs armor to exist, and creates armor by its very nature. The kind of work involved in farming causes armoring, intensifies it when it already exists, and could never be done by normal unarmored people.
I would never try to convince farmers to try cloudbusting. There have been many cases of that happening, and they always do more harm than almost anyone else.
Modern scientific theories are nothing but rationalizations to enable scientists to avoid thinking about orgone. It is not a matter of information. It is a defense mechanism that cannot be overcome by more information or by any kind of evidence that orgone exists.
There are a few exceptions, like Bernard Grad, but most scientists are no more likely to become converted to orgonomy by evidence than most Jesuits are to become Buddists. And for exactly the same reasons.
So forget the scientists. I would rather demonstrate cloudbusting to children and adolescents, who are still capable of learning about it.
So I do not care if soil chemists could find something they would not understand in an area where cloudbusting had been going on. And I see no reason to involve meteorologists in cloudbusting either. They would only get in the way.
As for the involvement of the agricultural interests you suggest, that thought scares me. Farmers are the root cause of most opf the problems on this planet, and farming must be ABOLISHED, not encouraged. Farmers are the very worst people to try to get interested in cloudbusting.
Farmers typically care only for their own farms, and not at all for the surroundings, especially wildlife. And farmers, anywhere, in any place, in any time, over the past 5,000 years, are always the most rigid, repressed, hide-bound, traditionalists of any group.
Farming could not exist in an unarmored, healthy people. Farming both needs armor to exist, and creates armor by its very nature. The kind of work involved in farming causes armoring, intensifies it when it already exists, and could never be done by normal unarmored people.
I would never try to convince farmers to try cloudbusting. There have been many cases of that happening, and they always do more harm than almost anyone else.
Frightening Prospect
Too many people find out cloudbustinmg can be done and immediately try to win over the whole world to doing it. Nobody ever stops to think what the results of acceptance would be.
Can you imagine the Mafia shaking down farmers by threatening to cause floods or droughts? Or the IRA having a go at British agriculture? Or India and Pakistan giving each other floods? Or teenagers playing with the weather for a joke? Or oil companies trying to increase demand for heating fuel by causing cold weather?
All these would happen if any of these misguided fools were ever to succeed in convincing the world cloudbusters work.
Fortunately, the psychological and cultural obstacles are so great that there is little danger of that ever happening.
--- On Thu, 3/12/09, Jürgen Fischer <orgon@freenet.de> wrote:
From: Jürgen Fischer <orgon@freenet.de>
Subject: Re : [OrgonomyMail-List] Tr : emotionnal plague
To: OrgonomyMail-List@yahoogroups.com
Date: Thursday, March 12, 2009, 8:19 PM
I did cloudbusting with DeMeo, Bernd Senf and others in the eighties and nineties. I did it in Arizona and in Germany. It always worked - even "better" than intended. The last operation (I was doing the videos) led to one of the biggest weather disasters in Europe with seven severe storms from Scotland to Greece that cost more than 200 human lives and many billions on money. Thousands lost their health and properties. Many forests were damaged for decades.
Well. No one of the nowadays "cloudbusting specialists" want to know about this event now - they simply don't mention any more - and they act on as if cloudbusting was a fine thing and could be done by some private persons. Actually it is very cheap and simple (about 2000,- $) to build a fully equiped cloudbuster and as myself anyone else who knows how to operate could built one and do it. And some really do.
What - do you think - would happen, if a politician who has to act with "public success" would really successfully fight the califonia fires with rain that is produced with cloudbusting? I think: a worldwide disaster that could ruin the global climate completely. Any farmer organisation would claim to do it. The yellow press would jump on the subject for the thrill. (Make a storm and send the camera teams even before it happens.) Everybody who thinks of himself being important, every lobbyist, would require cloudbusting for the purpose of his own interests. The military, the cotton farmers, the tourist industry ....
This is throwing it into the big mouth of the emotional plague.
Cludbusting is a NOT to make rain for some purpose, not even "to break a droungt" (as some "specialists" claim) and especially not a toy for those houswifes and students who speak of consprative "chem trails" and proudfully show videos on youtube on how they destroyed clouds with their "holy granades".
Reichs first public cloudbusting attempts to help the strawberry farmers was a rather naive action, but he did not know yet about the self regulative rules of the climate when he did it. Later in his operations in Arizona he did not make rain any more but he tried to enhance the relative humidity of the air to help the desert vegetaion to grow slowly over a long period of time. Cloudbusting is more related biology than to meteorology. It is ecology.
Cloudbusting can only be used beneficially to help the global climate to regain its self regulation. It can only be done properly if you know the causes of DOR, at least of those origings of DOR made by us humans. I know and some others do, too. But better not to publish this.
There is one example in Northern Africa: a contemporary cloudbusting project done for an agricultural project. It sounds very successful and reasonable, but what is really happening? The natural weather regulation is perverted even more. The project will be dependent on cloudbusting for decades, perhaps for ever, because not the cause of the desert is reversed, only come square miles are artificially supplied with rain by drawing clouds from north to the south. No one knows what will be the result if you constantly change the global climate just to make rain for some square miles of one single farming project.
I think, if we use cloudbusting for shortsighted aims like breaking a drounght, for fire fighing or farming, or making sunshine for tourists - soon every fire in Australia would be countered with cloudbusting. But what if this results in a climate change that stops rain in the Indonesian rain forests or if it results in a warming of Antarctica and the melting ice would raise the oceans some meters?
At least: the Californian coast would not have a fire problem any more because most cities would be below the sea level.
American Laws On Weather Modification
This is a full summary of the current state of laws concerning
weather modification in the USA. The laws are intended to deal with conventional
cloudseeding, but would apply to any other technology as well.
weather modification in the USA. The laws are intended to deal with conventional
cloudseeding, but would apply to any other technology as well.
Weather Modification Law in the USA
Copyright 2002 by Ronald B. Standler
Copyright 2002 by Ronald B. Standler
Table of Contents
Introduction
1. Technology
2. Government Licensing and Regulations
3. Court Cases
4. General Principles of Tort Liability
Proof of Causation
5. Need alternative to tort litigation
6. Support of Basic Scientific Research
7. Property Rights in Water from Cloud Seeding
8. Conclusion
9. Bibliography
About the author
---------------------------------------------------------------------
-----------
Introduction
Weather modification is the effort of man to change naturally
occurring
weather, for the benefit of someone. The best-known kind of weather
modification is cloud seeding, with the goal of producing rain or
snow,
suppressing hail (which can ruin crops), or weakening hurricanes.
Weather modification is the effort of man to change naturally
occurring
weather, for the benefit of someone. The best-known kind of weather
modification is cloud seeding, with the goal of producing rain or
snow,
suppressing hail (which can ruin crops), or weakening hurricanes.
People who live in the city do not give any thought to water: they
turn on
the faucet and water appears. But water is a constant concern for
farmers
and ranchers: drought can bankrupt a farmer and force a rancher to
sell
his/her cattle at an undesirable price. The legal right to access
water is
an important part of property law. There are many legal disputes
about one
person or one state extracting "too much" water from a river and
thereby
depriving everyone downstream. Because water is absolutely essential
to the
financial survival of farmers and ranchers, public hearings about
allocations of water (including proposed cloud seeding) are often
highly
emotional events.
turn on
the faucet and water appears. But water is a constant concern for
farmers
and ranchers: drought can bankrupt a farmer and force a rancher to
sell
his/her cattle at an undesirable price. The legal right to access
water is
an important part of property law. There are many legal disputes
about one
person or one state extracting "too much" water from a river and
thereby
depriving everyone downstream. Because water is absolutely essential
to the
financial survival of farmers and ranchers, public hearings about
allocations of water (including proposed cloud seeding) are often
highly
emotional events.
This essay briefly reviews governmental regulation of weather
modification,
then concentrates on judicial opinions regarding modified weather or
cloud
seeding and suggests how future weather modification torts might be
argued.
The scope of this essay does not cover liability for inadvertent
weather
modification, such as:
release of heat or smoke from industrial smokestacks;
injection of water vapor and particulates from jet airplane engines
into the
dry stratosphere;
release of heat and airborne particulates from cities;
pollution from automobiles;
global warming from release of CO2 by burning wood, coal, oil, or
natural
gas; or
removal of ozone by release of fluorocarbons into the atmosphere.
This essay also does not consider purely local weather modification,
such as
dissipating fog in supercooled clouds at an airport.
modification,
then concentrates on judicial opinions regarding modified weather or
cloud
seeding and suggests how future weather modification torts might be
argued.
The scope of this essay does not cover liability for inadvertent
weather
modification, such as:
release of heat or smoke from industrial smokestacks;
injection of water vapor and particulates from jet airplane engines
into the
dry stratosphere;
release of heat and airborne particulates from cities;
pollution from automobiles;
global warming from release of CO2 by burning wood, coal, oil, or
natural
gas; or
removal of ozone by release of fluorocarbons into the atmosphere.
This essay also does not consider purely local weather modification,
such as
dissipating fog in supercooled clouds at an airport.
This essay was initially written to inform:
potential plaintiffs (e.g., farmers, ranchers, and people who might
be
victims of a flood),
meteorology students, and
attorneys and law students working in either environmental law or
water law,
about the nationwide law in the USA that affects tort liability for
cloud
seeding. (I am not opposed to cloud seeding, but experienced cloud
seeders
and their attorneys already know, or should know, the basic
information in
this essay.) This essay is intended only to present general
information
about an interesting topic in law and is not legal advice for your
specific
problem. See my disclaimer.
potential plaintiffs (e.g., farmers, ranchers, and people who might
be
victims of a flood),
meteorology students, and
attorneys and law students working in either environmental law or
water law,
about the nationwide law in the USA that affects tort liability for
cloud
seeding. (I am not opposed to cloud seeding, but experienced cloud
seeders
and their attorneys already know, or should know, the basic
information in
this essay.) This essay is intended only to present general
information
about an interesting topic in law and is not legal advice for your
specific
problem. See my disclaimer.
The history of cloud seeding also makes an interesting case study in
the
interaction between scientists and society: not only about the
obligations
and ethics of scientists, but also about how courts have avoided
deciding
cases involving technical issues about weather modification.
the
interaction between scientists and society: not only about the
obligations
and ethics of scientists, but also about how courts have avoided
deciding
cases involving technical issues about weather modification.
---------------------------------------------------------------------
-----------
1. Technology
Release of silver iodide (AgI) into an existing supercooled cloud
(i.e., air
temperature between -39 and -5 celsius) can convert water vapor to
ice
crystals, which is called sublimation. The ice crystals nucleated by
the AgI
will grow and local water droplets will shrink. The latent heat
released by
converting water vapor (or liquid water) to ice will increase
vertical air
motion inside the cloud and aid the convective growth of the cloud.
Raindrops or snowflakes will grow larger by falling through a taller
cloud.
Also, moist air from evaporated moisture in the soil will be sucked
into the
base of the cloud by convection (i.e., updraft), thus increasing the
total
amount of water in the cloud. Perhaps 30 minutes after the AgI
release, snow
may fall below the cloud. Depending on the temperature and humidity
below
the cloud, the snow may change to rain, or even evaporate, before
reaching
the ground.
Release of silver iodide (AgI) into an existing supercooled cloud
(i.e., air
temperature between -39 and -5 celsius) can convert water vapor to
ice
crystals, which is called sublimation. The ice crystals nucleated by
the AgI
will grow and local water droplets will shrink. The latent heat
released by
converting water vapor (or liquid water) to ice will increase
vertical air
motion inside the cloud and aid the convective growth of the cloud.
Raindrops or snowflakes will grow larger by falling through a taller
cloud.
Also, moist air from evaporated moisture in the soil will be sucked
into the
base of the cloud by convection (i.e., updraft), thus increasing the
total
amount of water in the cloud. Perhaps 30 minutes after the AgI
release, snow
may fall below the cloud. Depending on the temperature and humidity
below
the cloud, the snow may change to rain, or even evaporate, before
reaching
the ground.
To sharpen the focus of this essay on the law of cloud seeding, I
have moved
my discussion of cloud seeding technology to a separate document.
That
document contains a discussion of:
history of early (e.g., 1946-51) cloud seeding experiments, with
emphasis on
legal issues;
some technical problems with cloud seeding experiments;
a few excerpts from the official policy of the American
Meteorological
Society on cloud seeding technologies;
environmental concerns and terse comments on the ethics of
scientific
experiments; and
the need for more basic scientific research.
have moved
my discussion of cloud seeding technology to a separate document.
That
document contains a discussion of:
history of early (e.g., 1946-51) cloud seeding experiments, with
emphasis on
legal issues;
some technical problems with cloud seeding experiments;
a few excerpts from the official policy of the American
Meteorological
Society on cloud seeding technologies;
environmental concerns and terse comments on the ethics of
scientific
experiments; and
the need for more basic scientific research.
---------------------------------------------------------------------
-----------
2. Governmental Licensing and Regulations
Various state governments license and regulate commercial weather
modification. These regulations are desirable because:
weather is part of the natural environment that belongs to everyone.
governments regulate the allocation of water from rivers to
landowners, so
it was natural for governments to also regulate attempts to enhance
rainfall.
some cloud seeders in the 1950s and 1960s were charlatans who
exploited
desperate farmers in a drought, which led to government programs to
license
cloud seeders, in order to protect the public.
Various state governments license and regulate commercial weather
modification. These regulations are desirable because:
weather is part of the natural environment that belongs to everyone.
governments regulate the allocation of water from rivers to
landowners, so
it was natural for governments to also regulate attempts to enhance
rainfall.
some cloud seeders in the 1950s and 1960s were charlatans who
exploited
desperate farmers in a drought, which led to government programs to
license
cloud seeders, in order to protect the public.
There are two common features of state regulations:
ensure that commercial weather modification companies are competent
(e.g.,
states often require cloud seeders to have earned at least a
bachelor's
degree in meteorology or a related field, plus have experience in
weather
modification); and
require companies have the resources to compensate those harmed by
their
weather modification (so-called "proof of financial
responsibility"). In
practice, such proof requires cloud seeders either to purchase
liability
insurance or to post a bond. Minimum amounts of insurance specified
in old
statutes are now woefully inadequate, because of inflation since the
statute
was written.
ensure that commercial weather modification companies are competent
(e.g.,
states often require cloud seeders to have earned at least a
bachelor's
degree in meteorology or a related field, plus have experience in
weather
modification); and
require companies have the resources to compensate those harmed by
their
weather modification (so-called "proof of financial
responsibility"). In
practice, such proof requires cloud seeders either to purchase
liability
insurance or to post a bond. Minimum amounts of insurance specified
in old
statutes are now woefully inadequate, because of inflation since the
statute
was written.
The governmental regulation of cloud seeders is generally a two-step
process. First, the government licenses individual cloud seeders.
Second,
the government grants a permit to a licensed cloud seeder to conduct
operations at a specific place and range of times.
process. First, the government licenses individual cloud seeders.
Second,
the government grants a permit to a licensed cloud seeder to conduct
operations at a specific place and range of times.
Some states require public hearings before a cloud seeder is granted
a
permit.
a
permit.
One of the biggest problems with state regulation of weather
modification is
that the effects of weather modification commonly involve more than
one
state. For example, cloud seeding in the sky above Montana might
later cause
rain in North Dakota.
modification is
that the effects of weather modification commonly involve more than
one
state. For example, cloud seeding in the sky above Montana might
later cause
rain in North Dakota.
The following state governments, in alphabetical order, have
significant
websites about weather modification licensing and regulation:
Colorado
significant
websites about weather modification licensing and regulation:
Colorado
North Dakota
Oklahoma
Texas
Utah
Most states in the USA have statutes about weather modification.
Because
there are so many statutes and because they change with time, I have
chosen
not to summarize state statutes in this essay. Most states have
posted their
current statutes on the Internet, so they are easily available.
Readers of
statutes should contact an attorney who is licensed to practice in
their
state for an interpretation of technical legal terms in the statutes.
Because
there are so many statutes and because they change with time, I have
chosen
not to summarize state statutes in this essay. Most states have
posted their
current statutes on the Internet, so they are easily available.
Readers of
statutes should contact an attorney who is licensed to practice in
their
state for an interpretation of technical legal terms in the statutes.
The Federal statute 15 USC § 330 (1971) requires reporting of
weather
modification to the Secretary of Commerce. Federal Regulations that
implement this statute are found at 15 CFR § 908.
weather
modification to the Secretary of Commerce. Federal Regulations that
implement this statute are found at 15 CFR § 908.
---------------------------------------------------------------------
-----------
3. Court Cases
It is important to know that decisions of trial courts in the USA
are not
published (with the exception of some federal cases and a very few
cases in
some state courts), so it is difficult to find opinions of trial
courts.
Even if they were published, an opinion of a trial court is not
precedent
that is binding on future trials.
It is important to know that decisions of trial courts in the USA
are not
published (with the exception of some federal cases and a very few
cases in
some state courts), so it is difficult to find opinions of trial
courts.
Even if they were published, an opinion of a trial court is not
precedent
that is binding on future trials.
Additionally, many appellate court cases in the USA are also
unpublished and
also can not be found conveniently.
unpublished and
also can not be found conveniently.
Therefore, there is no convenient way to find all of the cases in
the USA
involving a specific topic or legal issue. However, the following
list is
what I found in May 1997 and September 2002 with a search of the
comprehensive Westlaw ALLCASES database, plus what I found by
following
footnotes in law review articles.
the USA
involving a specific topic or legal issue. However, the following
list is
what I found in May 1997 and September 2002 with a search of the
comprehensive Westlaw ALLCASES database, plus what I found by
following
footnotes in law review articles.
I list the cases in chronological order in this essay, so the reader
can
easily follow the historical development of a national phenomenon.
If I were
writing a legal brief, I would use the conventional citation order
given in
the Bluebook. I cite articles and books in the (Author, year, page)
format;
complete bibliographic data is given below.
can
easily follow the historical development of a national phenomenon.
If I were
writing a legal brief, I would use the conventional citation order
given in
the Bluebook. I cite articles and books in the (Author, year, page)
format;
complete bibliographic data is given below.
There are two basic ways that people in the USA can file litigation
in court
regarding weather modification:
Before the cloud seeding occurs, potential victims may apply to a
court for
an injunction prohibiting any future attempt at weather
modification. Before
an injunction can be issued, the plaintiff must be able to show an
"irreparable harm" (i.e., destruction of something unique that can
not be
replaced) or "no adequate remedy at law" (i.e., money damages in
either
contract or tort litigation would not adequately compensate
plaintiff).
After the allegedly modified weather causes damage to crops or
buildings,
the victims can sue the people who allegedly caused the modification
in
weather.
in court
regarding weather modification:
Before the cloud seeding occurs, potential victims may apply to a
court for
an injunction prohibiting any future attempt at weather
modification. Before
an injunction can be issued, the plaintiff must be able to show an
"irreparable harm" (i.e., destruction of something unique that can
not be
replaced) or "no adequate remedy at law" (i.e., money damages in
either
contract or tort litigation would not adequately compensate
plaintiff).
After the allegedly modified weather causes damage to crops or
buildings,
the victims can sue the people who allegedly caused the modification
in
weather.
---------------------------------------------------------------------
-----------
New York 1950
Slutsky v. City of New York, 97 N.Y.S.2d 238 (Sup.Ct. 1950).
Slutsky v. City of New York, 97 N.Y.S.2d 238 (Sup.Ct. 1950).
New York City was conducting "experiments to induce rain
artificially", in
order to alleviate the "severe drought" that had diminished the
City's water
supply. The Plaintiff, Slutsky, sought an injunction to prohibit
these
experiments, because he feared the rain would interfere with his
business,
which was a country club and resort in Ulster County, north of New
York
City.
artificially", in
order to alleviate the "severe drought" that had diminished the
City's water
supply. The Plaintiff, Slutsky, sought an injunction to prohibit
these
experiments, because he feared the rain would interfere with his
business,
which was a country club and resort in Ulster County, north of New
York
City.
The trial court, in a terse opinion, denied the injunction and said:
Apart from the legal defects in plaintiffs' suit (since they clearly
have no
vested property rights in the clouds or moisture therein), the
factual
situation fails to demonstrate any possible irreparable injury to
plaintiffs.
97 N.Y.S.2d at 239.
Apart from the legal defects in plaintiffs' suit (since they clearly
have no
vested property rights in the clouds or moisture therein), the
factual
situation fails to demonstrate any possible irreparable injury to
plaintiffs.
97 N.Y.S.2d at 239.
The final paragraph of the opinion says:
Contrasted with plaintiff's unfounded speculations as to possible
damage,
the affidavits of the experts for the City show that the experiments
have
reached a stage where it might reasonably be expected that rainfall
may be
both induced and controlled. This court must balance the conflicting
interests between a remote possibility of inconvenience to
plaintiffs'
resort and its guests with the problem of maintaining and supplying
the
inhabitants of the City of New York and surrounding areas, with a
population
of about 10 million inhabitants, with an adequate supply of pure and
wholesome water. The relief which plaintiffs ask is opposed to the
general
welfare and public good; and the dangers which plaintiffs apprehend
are
purely speculative. This court will not protect a possible private
injury at
the expense of a positive public advantage. Since plaintiffs have
shown
neither a factual nor legal basis for the drastic relief that they
seek, the
motion for a temporary injunction is denied.
97 N.Y.S.2d at 240.
The parenthetical remark about "no vested property rights" is a
totally
unsupported conclusion. Nowhere in this terse opinion is any
discussion of
property rights, vested or otherwise. This terse opinion cites no
cases, no
statutes, no books, and no scholarly articles in legal journals.
Furthermore, the promise of experiments to increase rainfall, which
the
court accepts as reality, was, in fact, highly speculative in 1950.
Indeed,
the judge properly referred to the attempts at rainfall enhancement
as an
"experiment" five times in one page. Despite what the judge said,
there was
a possibility that the plaintiffs' business might suffer from heavy
rainfall, and there is also a possibility that the experiments would
be
ineffective in enhancing rainfall. Nonetheless, it was appropriate
to
balance the harms that might be suffered by one resort owner vs. ten
million
thirsty people in the City, and then rule in favor of the City. In
my
opinion, this judge reached the correct result, after mentioning the
wrong
reason (i.e., "no vested property rights"), no reasons (i.e.,
failing to
cite any authority), and the right reason (i.e., the balancing of
equities).
totally
unsupported conclusion. Nowhere in this terse opinion is any
discussion of
property rights, vested or otherwise. This terse opinion cites no
cases, no
statutes, no books, and no scholarly articles in legal journals.
Furthermore, the promise of experiments to increase rainfall, which
the
court accepts as reality, was, in fact, highly speculative in 1950.
Indeed,
the judge properly referred to the attempts at rainfall enhancement
as an
"experiment" five times in one page. Despite what the judge said,
there was
a possibility that the plaintiffs' business might suffer from heavy
rainfall, and there is also a possibility that the experiments would
be
ineffective in enhancing rainfall. Nonetheless, it was appropriate
to
balance the harms that might be suffered by one resort owner vs. ten
million
thirsty people in the City, and then rule in favor of the City. In
my
opinion, this judge reached the correct result, after mentioning the
wrong
reason (i.e., "no vested property rights"), no reasons (i.e.,
failing to
cite any authority), and the right reason (i.e., the balancing of
equities).
The opinion in this case was subsequently criticized by Judge
MacPhail in
Pennsylvania:
The court's language concerning vested property rights in clouds and
moisture was dicta, unsupported by legal authority or reason and was
not
favorably received. See 34 Marquette Law Review 262.
Pennsylvania Natural Weather Assn. v. Blue Ridge Weather
Modification Assn.,
44 Pa. D. & C. at 757, 1968 WL 6708 at *6 (Pa.Com.Pl. 1968).
After following the citation to the Marquette Law Review, one finds
that
Comment (which was written by three students while in law school)
says only
the following about the Slutsky case:
... the court offers no substantial reason for its parenthetical
statement
that a property owner has "no vested property rights in the clouds
or the
moisture therein." Indeed it is not at all clear just what the court
means
by its statement, for while it is true that a landowner has no
vested
property right in the moisture or clouds while over another man's
land, it
does not necessarily follow that he has no rights whatsoever to the
natural
benefits which will accrue to him from the normal rainfall. ....
Thus the
Slutsky case, while making a rather categorical statement regarding
the
rights of property owners in the clouds overhead, actually throws
little
light upon the problem involved.
Paul Binzak, Richard P. Buellesbach, Irving Zirbel, Comment: "Rights
of
Private Land Owners as Against Artificial Rain Makers," 34 Marquette
Law
Review 262, 264-65, Spring 1951.
MacPhail in
Pennsylvania:
The court's language concerning vested property rights in clouds and
moisture was dicta, unsupported by legal authority or reason and was
not
favorably received. See 34 Marquette Law Review 262.
Pennsylvania Natural Weather Assn. v. Blue Ridge Weather
Modification Assn.,
44 Pa. D. & C. at 757, 1968 WL 6708 at *6 (Pa.Com.Pl. 1968).
After following the citation to the Marquette Law Review, one finds
that
Comment (which was written by three students while in law school)
says only
the following about the Slutsky case:
... the court offers no substantial reason for its parenthetical
statement
that a property owner has "no vested property rights in the clouds
or the
moisture therein." Indeed it is not at all clear just what the court
means
by its statement, for while it is true that a landowner has no
vested
property right in the moisture or clouds while over another man's
land, it
does not necessarily follow that he has no rights whatsoever to the
natural
benefits which will accrue to him from the normal rainfall. ....
Thus the
Slutsky case, while making a rather categorical statement regarding
the
rights of property owners in the clouds overhead, actually throws
little
light upon the problem involved.
Paul Binzak, Richard P. Buellesbach, Irving Zirbel, Comment: "Rights
of
Private Land Owners as Against Artificial Rain Makers," 34 Marquette
Law
Review 262, 264-65, Spring 1951.
---------------------------------------------------------------------
-----------
Oklahoma 1954
Samples v. Irving P. Krick, Inc., Civil Nrs. 6212, 6223, 6224
(W.D.Okla. 22
Dec 1954).
Samples v. Irving P. Krick, Inc., Civil Nrs. 6212, 6223, 6224
(W.D.Okla. 22
Dec 1954).
This is an unreported case that has been mentioned briefly in
several law
review articles. See, e.g., Grauer & Erickson (1956, p. 109),
Oppenheimer
(1958, p. 319), and Davis (1974, p. 413). This was apparently the
first
weather modification case in the USA to be presented to a jury.
several law
review articles. See, e.g., Grauer & Erickson (1956, p. 109),
Oppenheimer
(1958, p. 319), and Davis (1974, p. 413). This was apparently the
first
weather modification case in the USA to be presented to a jury.
Plaintiff alleged that cloud seeding by Krick caused a flood on 18-
19
November 1953 in Oklahoma City. The jury returned a verdict for the
defendant. Despite the immense importance of this case both to the
meteorology community and to the developing area of weather
modification
law, the federal judge did not prepare a written opinion for this
case.
19
November 1953 in Oklahoma City. The jury returned a verdict for the
defendant. Despite the immense importance of this case both to the
meteorology community and to the developing area of weather
modification
law, the federal judge did not prepare a written opinion for this
case.
Incidentally, Krick was the chairman of the meteorology department
at
California Institute of Technology from 1933 to 1948. That
university
abolished the entire meteorology department and fired Krick in 1948,
apparently because Krick was spending too much time on his private
consulting business that forecasted the weather for paying clients,
and not
enough time on scholarly research in atmospheric physics. (See the
essay by
Judith Goodstein, a historian of science at California Institute of
Technology.) Krick was one of the most famous commercial cloud
seeders in
the USA during the 1950s and 1960s. Among other flamboyant
statements, Krick
claimed he could predict weather more than one year in advance, with
approximately 80% accuracy, using proprietary technology that he had
developed. I have the impression that most meteorologists who were
familiar
with Krick's work believed that he was unprofessional and a fraud.
at
California Institute of Technology from 1933 to 1948. That
university
abolished the entire meteorology department and fired Krick in 1948,
apparently because Krick was spending too much time on his private
consulting business that forecasted the weather for paying clients,
and not
enough time on scholarly research in atmospheric physics. (See the
essay by
Judith Goodstein, a historian of science at California Institute of
Technology.) Krick was one of the most famous commercial cloud
seeders in
the USA during the 1950s and 1960s. Among other flamboyant
statements, Krick
claimed he could predict weather more than one year in advance, with
approximately 80% accuracy, using proprietary technology that he had
developed. I have the impression that most meteorologists who were
familiar
with Krick's work believed that he was unprofessional and a fraud.
---------------------------------------------------------------------
-----------
Washington state 1956
Auvil Orchard Company, Inc. v. Weather Modification, Inc., Nr. 19268
(Superior Court, Chelan County, Wash. 1956).
Auvil Orchard Company, Inc. v. Weather Modification, Inc., Nr. 19268
(Superior Court, Chelan County, Wash. 1956).
This is an unreported case that has been mentioned briefly in
several law
review articles. See, e.g., Oppenheimer (1958, p. 319) and Davis
(1974, p.
413).
several law
review articles. See, e.g., Oppenheimer (1958, p. 319) and Davis
(1974, p.
413).
Auvil was able to get a temporary injunction prohibiting cloud
seeding for
hail suppression. However, Auvil was unable to obtain a permanent
injunction, because he was unable to prove that the cloud seeding
had caused
a flood.
seeding for
hail suppression. However, Auvil was unable to obtain a permanent
injunction, because he was unable to prove that the cloud seeding
had caused
a flood.
---------------------------------------------------------------------
-----------
Texas 1958-59
Southwest Weather Research, Inc. v. Duncan, 319 S.W.2d 940 (Tex.App.
1958),
aff'd sub nom. Southwest Weather Research v. Jones, 327 S.W.2d 417
(Tex.
1959).
Southwest Weather Research, Inc. v. Duncan, 319 S.W.2d 940 (Tex.App.
1958),
aff'd sub nom. Southwest Weather Research v. Jones, 327 S.W.2d 417
(Tex.
1959).
Southwest Weather Research was a commercial cloud seeding company
that was
attempting to suppress hail for the benefit of farmers in counties
east of
Jeff Davis County. A group of ranchers in Jeff Davis County noticed
that the
cloud seeding airplanes that were dispensing AgI above their land
were
causing local clouds to dissipate, thus allegedly decreasing
rainfall on the
ranchers land. The ranchers applied for a permanent injunction
against the
cloud seeders. Before a hearing could be held on the permanent
injunction,
the judge granted a temporary injunction, in order to preserve the
status
quo ante. The issuance of this temporary injunction caused the
reported
appeal to the Texas Court of Civil Appeals and then to the Texas
Supreme
Court, both of which affirmed the issuance of the temporary
injunction.
that was
attempting to suppress hail for the benefit of farmers in counties
east of
Jeff Davis County. A group of ranchers in Jeff Davis County noticed
that the
cloud seeding airplanes that were dispensing AgI above their land
were
causing local clouds to dissipate, thus allegedly decreasing
rainfall on the
ranchers land. The ranchers applied for a permanent injunction
against the
cloud seeders. Before a hearing could be held on the permanent
injunction,
the judge granted a temporary injunction, in order to preserve the
status
quo ante. The issuance of this temporary injunction caused the
reported
appeal to the Texas Court of Civil Appeals and then to the Texas
Supreme
Court, both of which affirmed the issuance of the temporary
injunction.
The opinions note that the experts for the plaintiffs and defendant
disagreed about whether cloud seeding could cause a decrease in
rainfall,
although there was agreement that "unimportant clouds with no rain
potential
could be dissipated." 319 S.W.2d at 942.
disagreed about whether cloud seeding could cause a decrease in
rainfall,
although there was agreement that "unimportant clouds with no rain
potential
could be dissipated." 319 S.W.2d at 942.
The Texas Court of Civil Appeals held:
... the landowner is entitled to such precipitation as Nature deigns
to
bestow. We believe that the landowner is entitled, therefore and
thereby, to
such rainfall as may come from clouds over his own property that
Nature, in
her caprice, may provide. It follows, therefore, that this enjoyment
of[,]
or entitlement to[,] the benefits of Nature should be protected by
the
courts if interfered with improperly and unlawfully. .... We do not
mean to
say or imply at this time[,] or under conditions present in this
particular
case[,] that the landowner has a right to prevent or control weather
modification over land not his own. We do not pass upon that point
here, and
we do not intend any implication to that effect.
319 S.W.2d at 945. Duplicated in a companion case, Southwest Weather
Research v. Rounsaville, 320 S.W.2d 211, 216 (Tex.App. 1958), aff'd,
327
S.W.2d 417 (Tex. 1959).
... the landowner is entitled to such precipitation as Nature deigns
to
bestow. We believe that the landowner is entitled, therefore and
thereby, to
such rainfall as may come from clouds over his own property that
Nature, in
her caprice, may provide. It follows, therefore, that this enjoyment
of[,]
or entitlement to[,] the benefits of Nature should be protected by
the
courts if interfered with improperly and unlawfully. .... We do not
mean to
say or imply at this time[,] or under conditions present in this
particular
case[,] that the landowner has a right to prevent or control weather
modification over land not his own. We do not pass upon that point
here, and
we do not intend any implication to that effect.
319 S.W.2d at 945. Duplicated in a companion case, Southwest Weather
Research v. Rounsaville, 320 S.W.2d 211, 216 (Tex.App. 1958), aff'd,
327
S.W.2d 417 (Tex. 1959).
This case appears to be the only cloud seeding case in the USA in
which the
plaintiffs won. The later hearing is unreported, so it is not known
whether
the permanent injunction was granted. At the time of this case,
there were
neither state nor federal statutes or regulations on cloud seeding.
which the
plaintiffs won. The later hearing is unreported, so it is not known
whether
the permanent injunction was granted. At the time of this case,
there were
neither state nor federal statutes or regulations on cloud seeding.
I note that several authors of law review articles appear to have
missed the
fact that Southwest Weather Research is a request for an injunction
to
prohibit future harm, not a tort case involving liability for past
harm.
Thus, Southwest Weather Research teaches us nothing about negligence
and
little about liability.
missed the
fact that Southwest Weather Research is a request for an injunction
to
prohibit future harm, not a tort case involving liability for past
harm.
Thus, Southwest Weather Research teaches us nothing about negligence
and
little about liability.
---------------------------------------------------------------------
-----------
Nebraska 1960
Summerville v. North Platte Valley Weather Control District, 101
N.W.2d 748
(Neb. 1960).
Summerville v. North Platte Valley Weather Control District, 101
N.W.2d 748
(Neb. 1960).
A Nebraska state statute, enacted in 1957, allowed landowners to
create a
weather control district (which was a private corporation), and then
vote on
weather modification projects. Summerville, the plaintiff, lived
outside of
the district, but he owned property within the district. Summerville
filed
litigation challenging the constitutionality of the state statute,
because
he was affected by the decisions of the weather control district,
but he had
no opportunity to be heard. Both the trial court and the Nebraska
Supreme
Court found that the state statute was unconstitutional.
create a
weather control district (which was a private corporation), and then
vote on
weather modification projects. Summerville, the plaintiff, lived
outside of
the district, but he owned property within the district. Summerville
filed
litigation challenging the constitutionality of the state statute,
because
he was affected by the decisions of the weather control district,
but he had
no opportunity to be heard. Both the trial court and the Nebraska
Supreme
Court found that the state statute was unconstitutional.
The opinion of the Nebraska Supreme Court is remarkable in that it
says
absolutely nothing about either weather modification or a
landowner's rights
to water from clouds. The Court decided the statute was
unconstitutional
because the statute had the same defects as an earlier statute that
had been
declared unconstitutional in the year 1924.
says
absolutely nothing about either weather modification or a
landowner's rights
to water from clouds. The Court decided the statute was
unconstitutional
because the statute had the same defects as an earlier statute that
had been
declared unconstitutional in the year 1924.
I am surprised that this case has apparently inspired no comment in
law
reviews. Similar cases could be brought in federal court under the
Fifth
Amendment to the U.S. Constitution by a resident of state X,
challenging
weather control activities in state Y that affects land in state X.
law
reviews. Similar cases could be brought in federal court under the
Fifth
Amendment to the U.S. Constitution by a resident of state X,
challenging
weather control activities in state Y that affects land in state X.
---------------------------------------------------------------------
-----------
California 1964
Adams v. California, Nr. 10112 (Superior Court, Sutter County,
Calif. 6
April 1964).
Adams v. California, Nr. 10112 (Superior Court, Sutter County,
Calif. 6
April 1964).
This is an unreported case that has been mentioned briefly in
several law
review articles. See, e.g., Davis (1974, p. 413). The case is
discussed in
detail by Morris (1968) and Mann (1968).
several law
review articles. See, e.g., Davis (1974, p. 413). The case is
discussed in
detail by Morris (1968) and Mann (1968).
There were a total of 170 plaintiffs who alleged that cloud seeding
increased the flow of water in a river that caused a levee to break
at
midnight on 23 December 1955, which flooded their property. (Morris,
1968,
pp. 165-167) In this flood in Yuba City, 37 people died and "467
homes were
totally destroyed and 5745 homes damaged." (Mann, 1968, p. 691)
These
plaintiffs initially sued:
the cloud seeder, North American Weather Consultants;
the company that hired the cloud seeder, Pacific Gas and Electric
Company
(PG&E);
the state of California, who operated the levee that broke; and
fifty unknown defendants, who would be identified later.
increased the flow of water in a river that caused a levee to break
at
midnight on 23 December 1955, which flooded their property. (Morris,
1968,
pp. 165-167) In this flood in Yuba City, 37 people died and "467
homes were
totally destroyed and 5745 homes damaged." (Mann, 1968, p. 691)
These
plaintiffs initially sued:
the cloud seeder, North American Weather Consultants;
the company that hired the cloud seeder, Pacific Gas and Electric
Company
(PG&E);
the state of California, who operated the levee that broke; and
fifty unknown defendants, who would be identified later.
Plaintiffs asserted two causes of action against the cloud seeder:
(1)
"negligent maintenance and operation" of the AgI generators and (2)
cloud
seeding was an ultrahazardous activity, which justified imposition
of
liability without needing to prove negligence. (Mann, 1968, p. 695)
(1)
"negligent maintenance and operation" of the AgI generators and (2)
cloud
seeding was an ultrahazardous activity, which justified imposition
of
liability without needing to prove negligence. (Mann, 1968, p. 695)
Mann (1968, p. 692) notes in passing that, despite a statutory
requirement
for public notice of all cloud seeding, none of the plaintiffs were
aware of
the cloud seeding operation. The attorney for the plaintiffs "almost
inadvertently learned of the cloud seeding" at a lunch conversation,
about
one year after the flood. (Mann, 1968, p. 694)
requirement
for public notice of all cloud seeding, none of the plaintiffs were
aware of
the cloud seeding operation. The attorney for the plaintiffs "almost
inadvertently learned of the cloud seeding" at a lunch conversation,
about
one year after the flood. (Mann, 1968, p. 694)
Plaintiffs originally sued in a California state court, the
California
attorney general removed the case to federal court, and the judge in
the
federal court remanded the case to state court. Adams v. California,
176
F.Supp. 456 (N.D.Cal. 1959).
California
attorney general removed the case to federal court, and the judge in
the
federal court remanded the case to state court. Adams v. California,
176
F.Supp. 456 (N.D.Cal. 1959).
There are two reasons why this trial did not resolve whether or not
the
cloud seeding had contributed to the flood:
Plaintiffs' attorney hired a meteorologist as an expert witness just
a few
months before the trial began (despite approximately five years of
preparation by the attorney) and that expert wished to present a
theory that
had been mentioned in neither the pleadings nor discovery. (Mann,
1968, pp.
696, 701-02) Such late changes in the theory of the case is
basically trial
by ambush and the judge properly granted the defense motion to
prevent such
testimony. Because of poor preparation by the plaintiff's attorney,
not all
of the relevant facts and opinions were presented at trial.
the
cloud seeding had contributed to the flood:
Plaintiffs' attorney hired a meteorologist as an expert witness just
a few
months before the trial began (despite approximately five years of
preparation by the attorney) and that expert wished to present a
theory that
had been mentioned in neither the pleadings nor discovery. (Mann,
1968, pp.
696, 701-02) Such late changes in the theory of the case is
basically trial
by ambush and the judge properly granted the defense motion to
prevent such
testimony. Because of poor preparation by the plaintiff's attorney,
not all
of the relevant facts and opinions were presented at trial.
During the trial, PG&E paid plaintiffs' attorney in return for his
agreement
not to appeal a possible verdict favoring either PG&E or the cloud
seeder.
After this agreement, plaintiffs' attorney concentrated on suing the
state
of California and apparently avoided cross-examination of witnesses
presented by the defendants on cloud seeding issues. (Mann, 1968, p.
708)
The best reason why the cloud seeding did not contribute to the
flood was
that PG&E halted the AgI release three or four days before the
levees broke.
(Mann, 1968, pp. 690, 694) PG&E's attorney argued that any extra
water from
this cloud seeding passed by Yuba City one day before the levees
broke.
(Mann, 1968, p. 705) However, these reasons are not entirely
convincing to
me. We do not know if cloud seeding contributed to this flood, for
the two
reasons in the indented list in the previous paragraph.
flood was
that PG&E halted the AgI release three or four days before the
levees broke.
(Mann, 1968, pp. 690, 694) PG&E's attorney argued that any extra
water from
this cloud seeding passed by Yuba City one day before the levees
broke.
(Mann, 1968, p. 705) However, these reasons are not entirely
convincing to
me. We do not know if cloud seeding contributed to this flood, for
the two
reasons in the indented list in the previous paragraph.
After 26 days of hearings on pretrial motions and then an almost
five-month
trial, the court held:
Plaintiffs may not recover against the PG&E or North American
Weather
Consultants as they have failed in their burden of proof. The court
finds
that neither the PG&E nor North American Weather Consultants
produced any
significant increase in rainfall or snowfall outside of the Lake
Almanor
water shed. The effects of cloud seeding were limited to the pre-
determined
target area which drains only into Lake Almanor. Lake Almanor never
spilled
at any time before or during the flood; and accordingly, any
increase
produced by cloud seeding was successfully impounded by that PG&E
lake.
five-month
trial, the court held:
Plaintiffs may not recover against the PG&E or North American
Weather
Consultants as they have failed in their burden of proof. The court
finds
that neither the PG&E nor North American Weather Consultants
produced any
significant increase in rainfall or snowfall outside of the Lake
Almanor
water shed. The effects of cloud seeding were limited to the pre-
determined
target area which drains only into Lake Almanor. Lake Almanor never
spilled
at any time before or during the flood; and accordingly, any
increase
produced by cloud seeding was successfully impounded by that PG&E
lake.
The breaking of the levees was neither proximately caused nor
contributed to
either by the maintenance or by the operation of the artificial rain
making
equipment of any defendant in this lawsuit.
Judge John P. MacMurray, Adams v. California, Nr. 10112 (Superior
Court,
Sutter County, Calif. 6 April 1964), quoted in both (Morris, 1968,
pp.
182-83) and (Mann, 1968, p. 708).
contributed to
either by the maintenance or by the operation of the artificial rain
making
equipment of any defendant in this lawsuit.
Judge John P. MacMurray, Adams v. California, Nr. 10112 (Superior
Court,
Sutter County, Calif. 6 April 1964), quoted in both (Morris, 1968,
pp.
182-83) and (Mann, 1968, p. 708).
Despite losing against both PG&E and the cloud seeder, plaintiffs
won
against the state of California, because of negligent design,
construction,
or maintenance of the levees. (Mann, 1968, p. 709) Rather than have
a trial
on damages, the State of California agreed to pay plaintiffs a total
of US$
6,300,000, which was less than half of what plaintiffs had initially
requested. (Mann, 1968, p. 709) Incidentally, the California Supreme
Court
has ended sovereign immunity in California a few years before the
Adams
trial began. If sovereign immunity had existed, then plaintiffs
could not
have won against California.
won
against the state of California, because of negligent design,
construction,
or maintenance of the levees. (Mann, 1968, p. 709) Rather than have
a trial
on damages, the State of California agreed to pay plaintiffs a total
of US$
6,300,000, which was less than half of what plaintiffs had initially
requested. (Mann, 1968, p. 709) Incidentally, the California Supreme
Court
has ended sovereign immunity in California a few years before the
Adams
trial began. If sovereign immunity had existed, then plaintiffs
could not
have won against California.
The attorney for PG&E estimated that if cloud seeding had increased
the
rainfall by 15%, then the cloud seeding contributed an extra "572
acre feet"
(i.e., 7 × 105 m3) of water upstream from the levee, which the
attorney
argued was a "minuscule amount" and "could not have contributed in
any
significant degree to the breaking of the levees." (Morris, 1968,
pp.
180-81; Mann, 1968 p. 705).
the
rainfall by 15%, then the cloud seeding contributed an extra "572
acre feet"
(i.e., 7 × 105 m3) of water upstream from the levee, which the
attorney
argued was a "minuscule amount" and "could not have contributed in
any
significant degree to the breaking of the levees." (Morris, 1968,
pp.
180-81; Mann, 1968 p. 705).
no jury in this case
Attorneys involved in the case initially estimated that trial of
this case
would require between 12 and 18 months of court time, mostly because
of the
evidence of damage by 170 plaintiffs. (Morris, 1968, p. 170-71)
Because of
the anticipated extraordinary length of this trial, it was difficult
to find
a judge who would hear this case. The case was tried in Sutter
County, which
had only 12,000 registered voters who could be asked to serve on a
jury.
After inquiries about possible bias and availability for a year-long
trial,
the jury pool was reduced to 120 people. (Morris, 1968, pp. 172-
73; Mann,
1968, p. 699) The attorney for PG&E candidly wrote:
Of the 400 potential jurors, only 120 agreed that they would serve
for one
year. All but 10 of them were women, and those 110 women had
generally a
background as a grocery store clerk, or a packinghouse worker. Both
sides,
after spending literally years in preparing technical testimony,
were
somewhat discouraged with the idea of having to present this
information to
a level of women in their 60s who had an inadequate scientific
knowledge to
properly follow the testimony.
Morris, 1968, p. 173.
As an aside, I note that most litigators in the USA express their
belief in
the wisdom of juries, without any evidence to support that belief,
and in
the face of the obvious inability of jurors who have no education in
science
and mathematics to understand scientific evidence. Even worse,
jurors are
called upon to evaluate conflicting expert opinions, which is much
more
difficult than understanding the basis for each opinion. If doctoral-
level
scientists can not agree on conclusions, what hope is there for
people on
the jury (some of whom are probably high-school dropouts and none of
whom
have taken even introductory classes in calculus and physics) to
analyze and
evaluate such expert testimony? While I understand and agree with
the
above-quoted statement of Attorney Morris, I also wish to reject his
dim
opinion of stupid old women. The men in Sutter County, California
would be
equally unable to understand and to evaluate scientific evidence.
The
problem is that most jurors are ignorant of science and mathematics,
not
that jurors are women.
Furthermore, the plaintiffs were reluctant to pay approximately US$
36,000
in jurors' fees (i.e., a modest US$ 10/day, for a ten-month trial of
20
days/month, for a total of 18 jurors [12 jurors and 6 alternate
jurors]).
36,000
in jurors' fees (i.e., a modest US$ 10/day, for a ten-month trial of
20
days/month, for a total of 18 jurors [12 jurors and 6 alternate
jurors]).
For these reasons, attorneys for both plaintiff and defendant agreed
to try
the case without a jury. (Morris, 1968, p. 173)
to try
the case without a jury. (Morris, 1968, p. 173)
---------------------------------------------------------------------
-----------
Pennsylvania 1968
Pennsylvania Natural Weather Association v. Blue Ridge Weather
Modification
Association, 44 Pa. D. & C.2d 749, 1968 WL 6708 (Pa.Com.Pl. 1968).
Pennsylvania Natural Weather Association v. Blue Ridge Weather
Modification
Association, 44 Pa. D. & C.2d 749, 1968 WL 6708 (Pa.Com.Pl. 1968).
The plaintiff, Pennsylvania Natural Weather Association, was a group
of
property owners in Fulton County, Pennsylvania. The defendant, Blue
Ridge
Weather Modification Association, was a commercial cloud seeding
company
that had attempted in 1963 and 1964 to suppress hail in the states
of
Maryland, West Virginia, and Virginia, in addition to Franklin
County,
Pennsylvania. Franklin County is adjacent to Fulton County, where
the
plaintiffs lived.
of
property owners in Fulton County, Pennsylvania. The defendant, Blue
Ridge
Weather Modification Association, was a commercial cloud seeding
company
that had attempted in 1963 and 1964 to suppress hail in the states
of
Maryland, West Virginia, and Virginia, in addition to Franklin
County,
Pennsylvania. Franklin County is adjacent to Fulton County, where
the
plaintiffs lived.
There had been a "severe drought" in 1963, 1964, and 1965 in the
northeastern USA, including Fulton County. Plaintiffs sought an
injunction
preventing defendants from seeding clouds. The legal issue before
the court
was
... the question of whether or not a landowner outside of
the "target area"
is entitled to weather in its natural form, even though defendants'
activities were not intended to, and perhaps did not, in fact,
affect the
amount of rainfall Fulton County received or did not receive. To
state it
another way, does a landowner have a right to weather unmodified
anywhere?
44 Pa. D. & C. at 752, 1968 WL 6708 at *2.
northeastern USA, including Fulton County. Plaintiffs sought an
injunction
preventing defendants from seeding clouds. The legal issue before
the court
was
... the question of whether or not a landowner outside of
the "target area"
is entitled to weather in its natural form, even though defendants'
activities were not intended to, and perhaps did not, in fact,
affect the
amount of rainfall Fulton County received or did not receive. To
state it
another way, does a landowner have a right to weather unmodified
anywhere?
44 Pa. D. & C. at 752, 1968 WL 6708 at *2.
The court denied plaintiff's request for an injunction, because of
two
reasons:
Plaintiffs had not proven that they were harmed by the cloud
seeding. For
example, there was a drought in 1965, but defendant could not
possibly have
caused the drought in 1965, because defendant did no cloud seeding
in that
year. The drought in 1963 began before the defendants began their
cloud
seeding program. Plaintiffs had not proven that there was a "threat
of
immediate and irreparable harm", which is one of the conditions for
granting
an injunction. 44 Pa. D. & C. at 763-64, 1968 WL 6708 at *9.
two
reasons:
Plaintiffs had not proven that they were harmed by the cloud
seeding. For
example, there was a drought in 1965, but defendant could not
possibly have
caused the drought in 1965, because defendant did no cloud seeding
in that
year. The drought in 1963 began before the defendants began their
cloud
seeding program. Plaintiffs had not proven that there was a "threat
of
immediate and irreparable harm", which is one of the conditions for
granting
an injunction. 44 Pa. D. & C. at 763-64, 1968 WL 6708 at *9.
There was an adequate remedy at law, which barred the court from
granting
the equitable remedy of an injunction. After the plaintiff filed
this
litigation, the Pennsylvania legislature in 1965 enacted a statute
regulating cloud seeding. That statute specifically forbade weather
modification activities in any county "where the county
commissioners enact
a resolution stating that such actions are detrimental to the
welfare of the
country." In 1967, the Pennsylvania legislature repealed that
statute and
enacted a new statute that "specifically provides for damage
compensation to
property owners" who are harmed by weather modification activities
in
Pennsylvania. These statutes made the case moot. 44 Pa. D. & C. at
762-64,
1968 WL 6708 at *9-*10.
Because this case was decided on grounds of "no irreparable harm"
and
"adequate remedy at law", the court's opinions about the law of
cloud
seeding should be regarded as obiter dicta. Moreover, this opinion
was
issued by a trial court, which has no precedential value, not even
in
Pennsylvania. Nonetheless, the court's opinions are quoted here,
because
such opinions are sparse, so any judicial opinion (even an
incidental
remark) is significant:
It seems to us that one of the elements of land in its "natural
condition"
must be weather in its natural form, including all forms of natural
precipitation. .... [A landowner] does not assume the risk of
weather
modification activities by neighbors.
44 Pa. D. & C. at 756, 1968 WL 6708 at *5.
and
"adequate remedy at law", the court's opinions about the law of
cloud
seeding should be regarded as obiter dicta. Moreover, this opinion
was
issued by a trial court, which has no precedential value, not even
in
Pennsylvania. Nonetheless, the court's opinions are quoted here,
because
such opinions are sparse, so any judicial opinion (even an
incidental
remark) is significant:
It seems to us that one of the elements of land in its "natural
condition"
must be weather in its natural form, including all forms of natural
precipitation. .... [A landowner] does not assume the risk of
weather
modification activities by neighbors.
44 Pa. D. & C. at 756, 1968 WL 6708 at *5.
We hold specifically that every landowner has a property right in
the clouds
and the water in them. No individual has the right to determine for
himself
what his needs are and produce those needs by artifical means to the
prejudice and detriment of his neighbors. However, we feel that this
cannot
be an unqualified right. .... ... cloud seeding has been used[,] and
will
continue to be used[,] to produce rain to relieve the water shortage
in our
urban areas. We feel then that weather modification activities
undertaken in
the public interest, as opposed to private interests, and under the
direction and control of governmental authority should and must be
permitted.
44 Pa. D. & C. at 759-60, 1968 WL 6708 at *7.
Moisture in the clouds is common property belonging to everyone who
will
benefit from what occurs naturally in the clouds. Every owner of
land has a
property right in the moisture in the clouds and the right to
receive that
moisture in its natural form subject to such weather modification
activities
as shall be carried out by governmental authorities in the public,
as
opposed to private, interest.
44 Pa. D. & C. at 763, 1968 WL 6708 at *9 (Conclusions of Law Nrs. 1
and 2).
There is no further opinion in the Westlaw database for this case.
---------------------------------------------------------------------
-----------
Montana 1974
Montana Wilderness Association v. Hodel, 380 F.Supp. 879 (D.Mont.
1974).
Montana Wilderness Association v. Hodel, 380 F.Supp. 879 (D.Mont.
1974).
Bonneville Power Administration (BPA), an agency of the federal
government,
proposed to do cloud seeding in a wilderness area, to increase the
volume of
water in a river that was used for hydroelectric power. There is a
federal
statute that protects the "natural condition" of wilderness areas
from
interference by man. Plaintiffs were concerned that the proposed
cloud
seeding would harm or alter the wilderness area. Plaintiffs filed
litigation
in federal court, asking the court for declaratory judgment and an
injunction prohibiting planned cloud seeding. However, five days
after
plaintiffs filed this lawsuit, the BPA "cancelled a contract which
had been
granted to North American Weather Consultants" for cloud seeding.
380
F.Supp. at 880. In a terse opinion, the judge refused to hear the
case,
because the case was moot: the BPA had already decided not to seed
clouds.
Because there were no further cloud seeding proposals in the next
several
years, Davis (1977, p. 48, n. 142) commented: "It would appear that
the
plaintiffs won their point without the need to go to trial."
government,
proposed to do cloud seeding in a wilderness area, to increase the
volume of
water in a river that was used for hydroelectric power. There is a
federal
statute that protects the "natural condition" of wilderness areas
from
interference by man. Plaintiffs were concerned that the proposed
cloud
seeding would harm or alter the wilderness area. Plaintiffs filed
litigation
in federal court, asking the court for declaratory judgment and an
injunction prohibiting planned cloud seeding. However, five days
after
plaintiffs filed this lawsuit, the BPA "cancelled a contract which
had been
granted to North American Weather Consultants" for cloud seeding.
380
F.Supp. at 880. In a terse opinion, the judge refused to hear the
case,
because the case was moot: the BPA had already decided not to seed
clouds.
Because there were no further cloud seeding proposals in the next
several
years, Davis (1977, p. 48, n. 142) commented: "It would appear that
the
plaintiffs won their point without the need to go to trial."
---------------------------------------------------------------------
-----------
South Dakota 1977
Lunsford v. U.S., 418 F.Supp. 1045 (D.S.Dak. 1976), aff'd, 570 F.2d
221
(8thCir. 1977).
Lunsford v. U.S., 418 F.Supp. 1045 (D.S.Dak. 1976), aff'd, 570 F.2d
221
(8thCir. 1977).
There was a flood in Rapid City, South Dakota on 9 June 1972 that
killed 283
people and caused extensive property damage. Plaintiffs alleged that
the
flood was caused by an experimental cloud seeding program operated
by the
South Dakota School of Mines and Technology, under contract to the
U.S.
Government.
killed 283
people and caused extensive property damage. Plaintiffs alleged that
the
flood was caused by an experimental cloud seeding program operated
by the
South Dakota School of Mines and Technology, under contract to the
U.S.
Government.
The court opinion considers only some preliminary, technical issues
in law
that do not involve the merits of this case:
Whether the plaintiffs can maintain a class action, on behalf of all
of the
victims of this flood.
Whether the plaintiffs need to exhaust their administrative claims
before
filing litigation.
Whether the U.S. Government was immune under 33 U.S.C. § 702c, which
provides for immunity for floods. That statute was enacted in the
context of
flood control (e.g., dams, dikes, and levees) legislation in the
year 1928
and it is not clear if the statute also applied to floods caused by
cloud
seeding.
The trial court's opinion, which was reported at 418 F.Supp. 1045,
mentions
neither "cloud seeding" nor "weather modification", but there is a
terse
mention in the appellate court's recitation of the facts of the case.
in law
that do not involve the merits of this case:
Whether the plaintiffs can maintain a class action, on behalf of all
of the
victims of this flood.
Whether the plaintiffs need to exhaust their administrative claims
before
filing litigation.
Whether the U.S. Government was immune under 33 U.S.C. § 702c, which
provides for immunity for floods. That statute was enacted in the
context of
flood control (e.g., dams, dikes, and levees) legislation in the
year 1928
and it is not clear if the statute also applied to floods caused by
cloud
seeding.
The trial court's opinion, which was reported at 418 F.Supp. 1045,
mentions
neither "cloud seeding" nor "weather modification", but there is a
terse
mention in the appellate court's recitation of the facts of the case.
There is no further opinion in the Westlaw database for this case.
---------------------------------------------------------------------
-----------
North Dakota 1981
Saba v. Counties of Barnes ..., 307 N.W.2d 590 (N.D. 1981).
Saba v. Counties of Barnes ..., 307 N.W.2d 590 (N.D. 1981).
Plaintiffs alleged that negligent cloud seeding by a private
company,
Weather Modification, Inc., caused heavy rain in Bismark, North
Dakota on 31
July 1975 that damaged plaintiffs' property.
company,
Weather Modification, Inc., caused heavy rain in Bismark, North
Dakota on 31
July 1975 that damaged plaintiffs' property.
Plaintiffs originally sued the city of Bismark, alleging "failure to
properly maintain its sewer system." The city answered the original
complaint by asserting that "the torrential rain was an act of God."
Plaintiffs then amended their Complaint to delete the defendant city
of
Bismark, to add as new defendants the cloud seeding company and nine
counties that had hired the cloud-seeding company, and to proceed on
a new
theory of negligent cloud seeding. Although there were only two
plaintiffs
with known claims for damages, plaintiffs' amended Complaint
attempted to
proceed as a class action, on behalf of all potential plaintiffs.
Id. at
596.
properly maintain its sewer system." The city answered the original
complaint by asserting that "the torrential rain was an act of God."
Plaintiffs then amended their Complaint to delete the defendant city
of
Bismark, to add as new defendants the cloud seeding company and nine
counties that had hired the cloud-seeding company, and to proceed on
a new
theory of negligent cloud seeding. Although there were only two
plaintiffs
with known claims for damages, plaintiffs' amended Complaint
attempted to
proceed as a class action, on behalf of all potential plaintiffs.
Id. at
596.
The trial court refused to certify the class action and the South
Dakota
Supreme Court affirmed. The opinion of the South Dakota Supreme
Court is
limited to the possibility of a class action and does not reach the
merits
of the negligent cloud seeding claim, which had not yet been heard
by the
trial court.
Dakota
Supreme Court affirmed. The opinion of the South Dakota Supreme
Court is
limited to the possibility of a class action and does not reach the
merits
of the negligent cloud seeding claim, which had not yet been heard
by the
trial court.
The Supreme Court of North Dakota coldly rejected plaintiffs'
attorney
request for certification of the class action:
We agree with the plaintiffs that one of the reasons for class-
action status
is to permit a sharing of the expenses of litigation. [citation
omitted]
However, we cannot determine that the class-action rule was intended
to
permit the plaintiffs to obtain class-action status in order to
permit them
to solicit additional plaintiffs who might be willing to share the
costs of
exploring a novel theory of liability.
....
Plaintiffs argue that they do not have the financial resources to
sustain
such a suit in their individual capacities, and that may well be the
situation. However, we do not believe the class-action rule was
intended
primarily as a vehicle by which parties whose alleged damage exceeds
the
estimated costs of litigation but who do not have the financial
resources to
sustain the costs of litigation are enabled to finance their claims,
although one of the benefits to parties of class-action status is a
sharing
of the litigation expenses.
Saba, at 596.
attorney
request for certification of the class action:
We agree with the plaintiffs that one of the reasons for class-
action status
is to permit a sharing of the expenses of litigation. [citation
omitted]
However, we cannot determine that the class-action rule was intended
to
permit the plaintiffs to obtain class-action status in order to
permit them
to solicit additional plaintiffs who might be willing to share the
costs of
exploring a novel theory of liability.
....
Plaintiffs argue that they do not have the financial resources to
sustain
such a suit in their individual capacities, and that may well be the
situation. However, we do not believe the class-action rule was
intended
primarily as a vehicle by which parties whose alleged damage exceeds
the
estimated costs of litigation but who do not have the financial
resources to
sustain the costs of litigation are enabled to finance their claims,
although one of the benefits to parties of class-action status is a
sharing
of the litigation expenses.
Saba, at 596.
There is no further opinion in the Westlaw database for this case.
---------------------------------------------------------------------
-----------
California 1987-1990
First English Evangelical Lutheran Church of Glendale v. County of
Los
Angeles, 482 U.S. 304 (1987), on remand, 258 Cal.Rptr. 893
(Calif.App.
1989), cert. denied, 493 U.S. 1056 (1990).
First English Evangelical Lutheran Church of Glendale v. County of
Los
Angeles, 482 U.S. 304 (1987), on remand, 258 Cal.Rptr. 893
(Calif.App.
1989), cert. denied, 493 U.S. 1056 (1990).
The Church owned five buildings situated on 21 acres of land in a
canyon in
Palmdale, California. On 9-10 February 1978, there was a total of 28
cm of
rain, and the ensuing flood in the canyon destroyed the buildings.
Following
that flood, the County of Los Angeles enacted a temporary ordinance
that
prohibited construction of any buildings in the canyon. Because the
Church
could not rebuild in the canyon for 2½ years, that ordinance
effectively
diminished the value of the Church's land.
canyon in
Palmdale, California. On 9-10 February 1978, there was a total of 28
cm of
rain, and the ensuing flood in the canyon destroyed the buildings.
Following
that flood, the County of Los Angeles enacted a temporary ordinance
that
prohibited construction of any buildings in the canyon. Because the
Church
could not rebuild in the canyon for 2½ years, that ordinance
effectively
diminished the value of the Church's land.
The Church then sued the County, alleging two causes of action:
an inverse condemnation action, seeking compensation for the
County's taking
of the land, contrary to article I, § 9 of the California
Constitution.
(Similar rights are contained in the Fifth Amendment to the U.S.
Constitution.)
an inverse condemnation action, seeking compensation for the
County's taking
of the land, contrary to article I, § 9 of the California
Constitution.
(Similar rights are contained in the Fifth Amendment to the U.S.
Constitution.)
tort liability for cloud seeding conducted by the County's Flood
Control
District.
The trial court granted the County's motion "for judgment on the
pleadings
on the second cause of action in tort and inverse condemnation based
on
cloud seeding". 258 Cal.Rptr. at 895. That terse remark is the only
information in the published opinions of the California courts on
this
important matter!
pleadings
on the second cause of action in tort and inverse condemnation based
on
cloud seeding". 258 Cal.Rptr. at 895. That terse remark is the only
information in the published opinions of the California courts on
this
important matter!
A trial was held on damages for the County's alleged taking of the
land, and
"at the close of plaintiff's evidence on liability, the court
granted
defendants' motion for nonsuit." Id. at 896.
land, and
"at the close of plaintiff's evidence on liability, the court
granted
defendants' motion for nonsuit." Id. at 896.
The California Court of Appeal affirmed in an unpublished opinion,
and the
California Supreme Court refused to review the case. The Church then
appealed to the U.S. Supreme Court, which rendered an opinion. The
case then
returned to the California Court of Appeal, which held that the
County's
temporary ordinance "substantially advances the highest possible
public
interest – the prevention of death and injury", so the
Church's "complaint
does not state a valid claim for a compensable taking." Id. at 905.
The case
was then remanded to the trial court for "further proceedings ... as
to the
cause of action for inverse condemnation based on cloud seeding."
Id. at
907. There is no further opinion in the Westlaw database for this
case.
and the
California Supreme Court refused to review the case. The Church then
appealed to the U.S. Supreme Court, which rendered an opinion. The
case then
returned to the California Court of Appeal, which held that the
County's
temporary ordinance "substantially advances the highest possible
public
interest – the prevention of death and injury", so the
Church's "complaint
does not state a valid claim for a compensable taking." Id. at 905.
The case
was then remanded to the trial court for "further proceedings ... as
to the
cause of action for inverse condemnation based on cloud seeding."
Id. at
907. There is no further opinion in the Westlaw database for this
case.
Incidentally, there has been a suggestion that the California Court
of
Appeals, 258 Cal.Rptr. 893, misunderstood the U.S. Supreme Court's
opinion
in the same case. McDougal v. County of Imperial, 942 F.2d 668, 676
(9thCir.
1991).
of
Appeals, 258 Cal.Rptr. 893, misunderstood the U.S. Supreme Court's
opinion
in the same case. McDougal v. County of Imperial, 942 F.2d 668, 676
(9thCir.
1991).
---------------------------------------------------------------------
-----------
conclusions about case law in the USA
Despite the potential immense economic importance of cloud seeding,
and the
important legal issues about who has property rights in clouds that
might
provide rain:
None of these reported judicial opinions discuss negligent cloud
seeding.
Few of these reported opinions discuss property rights of landowners
to rain
from the clouds that are either above their land or upwind from
their land.
Since 1980, there have been only two reported cases on the topic of
either:
(a) injunctions prohibiting cloud seeding or (b) liability for
alleged
negligent cloud seeding. Neither of those two cases discussed the
merits of
the cloud seeding issue.
Apparently no plaintiff has alleged a deprivation of precipitation
in a tort
case involving cloud seeding in the USA.
During the past fifty years, the courts in the USA have not resolved
any of
these important issues. A law professor said that the above cases
are
"sparse and contradictory". Davis (1974 , p. 433) Slutsky in New
York
absolutely rejected a landowner's rights in water from clouds;
Southwest
Weather Research in Texas accepted a landowner's rights in water
from clouds
and found that the landowner might be harmed by future cloud
seeding; while
Pennsylvania Natural Weather Assoc. accepted a landowner's rights in
water
from the cloud with some conditions, but found that the plaintiffs
had not
proved they would be harmed by future cloud seeding.
Despite the potential immense economic importance of cloud seeding,
and the
important legal issues about who has property rights in clouds that
might
provide rain:
None of these reported judicial opinions discuss negligent cloud
seeding.
Few of these reported opinions discuss property rights of landowners
to rain
from the clouds that are either above their land or upwind from
their land.
Since 1980, there have been only two reported cases on the topic of
either:
(a) injunctions prohibiting cloud seeding or (b) liability for
alleged
negligent cloud seeding. Neither of those two cases discussed the
merits of
the cloud seeding issue.
Apparently no plaintiff has alleged a deprivation of precipitation
in a tort
case involving cloud seeding in the USA.
During the past fifty years, the courts in the USA have not resolved
any of
these important issues. A law professor said that the above cases
are
"sparse and contradictory". Davis (1974 , p. 433) Slutsky in New
York
absolutely rejected a landowner's rights in water from clouds;
Southwest
Weather Research in Texas accepted a landowner's rights in water
from clouds
and found that the landowner might be harmed by future cloud
seeding; while
Pennsylvania Natural Weather Assoc. accepted a landowner's rights in
water
from the cloud with some conditions, but found that the plaintiffs
had not
proved they would be harmed by future cloud seeding.
There are a number of reasons why judges have neither decided nor
explained
the law in this new area:
Litigation is expensive and slow. Plaintiffs often exhaust their
financial
resources before all of the possible appeals can be heard, which
forces a
premature end to an interesting case.
explained
the law in this new area:
Litigation is expensive and slow. Plaintiffs often exhaust their
financial
resources before all of the possible appeals can be heard, which
forces a
premature end to an interesting case.
In other cases, subsequent events (e.g., end of a drought) may make
it
unimportant to plaintiffs to resolve all of the issues in their
original
complaint.
Sometimes defendants offer a substantial financial settlement to
plaintiffs,
in order to avoid the possibility of a reported judicial opinion
that could
serve as unfavorable precedent for the defendants in future cases.
Plaintiffs accept the offer and the case ends, without any judicial
opinion
on the merits. (I do not know that this has happened in any weather
modification case, but it is common in some other areas of law.)
The job of judges is only to decide the facts or law necessary to
dispose of
the particular case before them, not to write an essay about novel
legal
issues that are unnecessary to the disposition of the current case.
When a
judge does write about unnecessary issues, the judge's comments are
obiter
dicta, which are not precedent for future cases.
In particular, it is rare for a judge in an appellate court to give
guidance
to the judge in the trial court on matters not specifically
mentioned in the
appeal. For example, as mentioned in several cases above, an
interlocutory
appeal on certifying a class action only decided the desirability of
the
class action, without any discussion of the merits of the case, even
if the
appellate judge should know that the trial judge will need guidance
in
dealing with novel, unprecedented legal issues in a future trial on
the
merits. In other words, appellate judges exist to correct mistakes
already
made by lower court, not to help avoid mistakes that might be made
by the
lower court in a future trial in the case.
guidance
to the judge in the trial court on matters not specifically
mentioned in the
appeal. For example, as mentioned in several cases above, an
interlocutory
appeal on certifying a class action only decided the desirability of
the
class action, without any discussion of the merits of the case, even
if the
appellate judge should know that the trial judge will need guidance
in
dealing with novel, unprecedented legal issues in a future trial on
the
merits. In other words, appellate judges exist to correct mistakes
already
made by lower court, not to help avoid mistakes that might be made
by the
lower court in a future trial in the case.
This limited role of judges is contrasted with the job of the
scientist who
writes a paper or book for publication (or with a law professor who
writes
an article in a law review), where the author discusses a subject
thoroughly.
scientist who
writes a paper or book for publication (or with a law professor who
writes
an article in a law review), where the author discusses a subject
thoroughly.
Most judges are burdened by a very large number of cases, so they do
not
have adequate time to write a careful, scholarly discussion of novel
issues
that would be worthy of publication.
When a judge makes a decision on any important new topic, it is
almost
certain that a substantial number of people (including the losing
party in
litigation and his/her supporters) will react with anger and scorn,
simply
because they disagree with the judge's decision. The angry public
reaction
discourages judges from saying more than the minimum amount
necessary to
dispose of a case.
And, finally, because most attorneys and judges went through high
school and
college taking the minimum number of classes (and the easiest
classes) in
science and mathematics, they are now poorly prepared to handle
cases
involving scientific evidence (e.g., about cloud seeding). There is
a
natural tendency for judges, like everyone else, to avoid what they
do not
understand.
In one of the earliest reported cases involving cloud seeding, the
Texas
Supreme Court twice mentioned "complicated scientific problems". 327
S.W.2d
at 421. To me, as a scientist, such problems are no more complicated
than in
many other areas of scientific or engineering research.
Texas
Supreme Court twice mentioned "complicated scientific problems". 327
S.W.2d
at 421. To me, as a scientist, such problems are no more complicated
than in
many other areas of scientific or engineering research.
I remarked above on the angry public reaction to a judge's decision.
Let me
compare and contrast the situation in science to that in law.
Research
scientists become famous for writing landmark papers in scholarly
journals,
and many scientists would eagerly seize the opportunity to write a
publication on an important new topic. It is rare for a scientific
publication to cause an angry reaction among many readers. Indeed,
most
scientific accomplishments are ignored by journalists, politicians,
and the
public. In contrast, meteorologists who are involved in public
hearings on
cloud seedings are often exposed to an angry, political situation
that is
unlike anything in conventional scientific research. And, unlike the
situation in science, opinions expressed at hearings on cloud
seeding may be
based on superstition, emotions (e.g., fear or anger), politics
(e.g.,
having their personal concerns ignored or rejected by a bureaucrat
whom they
neither trust nor respect), religion (e.g., it is immoral to modify
God's
weather), ....
Let me
compare and contrast the situation in science to that in law.
Research
scientists become famous for writing landmark papers in scholarly
journals,
and many scientists would eagerly seize the opportunity to write a
publication on an important new topic. It is rare for a scientific
publication to cause an angry reaction among many readers. Indeed,
most
scientific accomplishments are ignored by journalists, politicians,
and the
public. In contrast, meteorologists who are involved in public
hearings on
cloud seedings are often exposed to an angry, political situation
that is
unlike anything in conventional scientific research. And, unlike the
situation in science, opinions expressed at hearings on cloud
seeding may be
based on superstition, emotions (e.g., fear or anger), politics
(e.g.,
having their personal concerns ignored or rejected by a bureaucrat
whom they
neither trust nor respect), religion (e.g., it is immoral to modify
God's
weather), ....
Farmers and ranchers opposed to cloud seeding have used violence and
sabotage against both cloud seeders and those sponsoring cloud
seeders
(Howell, 1965, p. 329; Carter, 1973, p. 1349).
sabotage against both cloud seeders and those sponsoring cloud
seeders
(Howell, 1965, p. 329; Carter, 1973, p. 1349).
---------------------------------------------------------------------
-----------
4. General Principles
of Tort Liability
As discussed above, judges have neither decided nor explained tort
liability
for negligent or wrongful cloud seeding. However, the general
principles of
tort liability are well established in many other areas (e.g.,
negligence,
medical malpractice, etc.) and these general principles would
probably be
used by judges to decide cases involving negligent or wrongful
weather
modification.
of Tort Liability
As discussed above, judges have neither decided nor explained tort
liability
for negligent or wrongful cloud seeding. However, the general
principles of
tort liability are well established in many other areas (e.g.,
negligence,
medical malpractice, etc.) and these general principles would
probably be
used by judges to decide cases involving negligent or wrongful
weather
modification.
There are several broad kinds of torts:
strict-liability torts Plaintiff only needs to prove that
defendant caused
plaintiff's injury, without also needing to prove wrongful or
negligent
conduct by plaintiff. When plaintiff wins a strict-liability tort
case, the
court orders defendant to compensate plaintiff, as a way of
redistributing
wealth (i.e., a large corporation or insurance company pays an
injured
individual, as part of the cost of doing business), not as
compensation for
a wrong. There are only a few kinds of strict-liability torts, of
which
"abnormally dangerous activities" might be relevant to cloud seeding.
strict-liability torts Plaintiff only needs to prove that
defendant caused
plaintiff's injury, without also needing to prove wrongful or
negligent
conduct by plaintiff. When plaintiff wins a strict-liability tort
case, the
court orders defendant to compensate plaintiff, as a way of
redistributing
wealth (i.e., a large corporation or insurance company pays an
injured
individual, as part of the cost of doing business), not as
compensation for
a wrong. There are only a few kinds of strict-liability torts, of
which
"abnormally dangerous activities" might be relevant to cloud seeding.
fault-based torts in which the injury to plaintiff was produced as a
result
of some kind of negligent or wrongful act by the defendant.
Essential
elements in proving these torts is showing that defendant owed a
specific
duty of care to the plaintiff and that defendant breached his/her
duty.
trespass or nuisance, which require either intent, negligence, or
abnormally
dangerous activity.
The plaintiff in a fault-based tort case needs to prove each of the
following four elements of a tort:
duty, a standard of conduct, e.g., specify the appropriate care that
defendant should have used.
following four elements of a tort:
duty, a standard of conduct, e.g., specify the appropriate care that
defendant should have used.
breach of that duty, e.g., the defendant's conduct was negligent.
injury, proof of the harm that the plaintiff suffered as a result of
defendant's act(s), or defendant's failure to act. If weather
modification
causes an amount of rain that is only slightly different from the
average
rainfall, I suggest below that there is no injury to plaintiff.
causation, proof that defendant caused the injury. It is important
to
understand that, even if a cloud seeder was negligent, there is no
tort
liability unless the cloud seeder can be proved to have caused the
harm to a
plaintiff. In the context of weather modification torts, the proof
of
causation has been so difficult that I discuss this topic in a
separate
section below.
For more general information on torts, see my general essay on that
topic.
topic.
If the court accepts a strict-liability tort, the plaintiff can skip
the
proof of the first two elements above: duty and breach of that duty.
Superficially, strict-liability torts appear to be easier to argue
than
fault-based torts. However, unless strict-liability for weather
modification
is established in a statute, the plaintiff will need to convince the
judge
that strict liability applies, which may be more difficult than
proving
negligence or nuisance in a fault-based tort.
the
proof of the first two elements above: duty and breach of that duty.
Superficially, strict-liability torts appear to be easier to argue
than
fault-based torts. However, unless strict-liability for weather
modification
is established in a statute, the plaintiff will need to convince the
judge
that strict liability applies, which may be more difficult than
proving
negligence or nuisance in a fault-based tort.
possible strict-liability tort
"Abnormally dangerous activities" are defined in Restatement Second
of
Torts, § 520 (1977).
Legislatures in three states have enacted statutes that specify
cloud
seeding is not an abnormally dangerous activity, thus strict
liability can
not apply to cloud seeders in those states:
North Dakota § 61-04.1-37(1) (1981);
Texas Art. 165c, § 1.72(a) (2001) This Texas statute was first
enacted in
1966. (Davis, 1974, p. 430);
Wisconsin § 93.35(14)(a) (1981).
On the other hand, a Pennsylvania statute appears to establish
strict
liability for any drought or "heavy downpours" that the state
weather
modification board finds to have been caused by weather
modification. 16
Pennsylvania Statutes § 1114 (1968).
cloud
seeding is not an abnormally dangerous activity, thus strict
liability can
not apply to cloud seeders in those states:
North Dakota § 61-04.1-37(1) (1981);
Texas Art. 165c, § 1.72(a) (2001) This Texas statute was first
enacted in
1966. (Davis, 1974, p. 430);
Wisconsin § 93.35(14)(a) (1981).
On the other hand, a Pennsylvania statute appears to establish
strict
liability for any drought or "heavy downpours" that the state
weather
modification board finds to have been caused by weather
modification. 16
Pennsylvania Statutes § 1114 (1968).
In other states, it is an unresolved question whether judges will
accept
strict-liability torts against cloud seeders.
accept
strict-liability torts against cloud seeders.
possible fault-based torts
Plaintiffs have several possible fault-based tort actions against
cloud
seeders:
negligence per se Two state statutes proclaim that failure of a
cloud
seeder to follow the licensing requirements or state regulations is
negligence per se:
Colorado § 36-20-123(2)(a) (1972);
Wisconsin § 93.35(14)(d) (1981).
In these states, if the plaintiff can prove that the cloud seeder
violated
state law or regulations, then, as a matter of law, negligence is
automatically proved.
In the absence of such a statute, there is a common law duty to obey
statutes and regulations that are designed to prevent harm.
Restatement
(Second) of Torts, §§ 285(a), 286, 288B(1) (1965).
statutes and regulations that are designed to prevent harm.
Restatement
(Second) of Torts, §§ 285(a), 286, 288B(1) (1965).
negligence The cloud seeder is held to a standard of care of a
competent,
professional meteorologist who was engaging in cloud seeding, who
takes
reasonable care to avoid foreseeable and unreasonable risks. (Note
that the
standard is not an average meteorologist, because that would make
half of
the cloud seeders negligent!) The standard of care can be
established in
several ways:
a statute or government regulation that is intended to protect the
public
safety. Restatement Second of Torts § 286 (1965).
a standard or code of conduct adopted by a professional society.
testimony of another meteorologist who has experience in weather
modification.
However, conduct that conforms with all relevant statutes,
regulations,
standards, and customs in the trade might still be negligent, if the
conduct
presents an unreasonable risk of harm.
A commercial cloud seeder who advertises his/her services as
unusually
competent (e.g., having tens of years of experience, employing
scientists
who have earned a Ph.D. in meteorology, etc.) can properly be held
to a
higher standard than a typical cloud seeder. Restatement (Second) of
Torts §
289(b) and § 299A (1965). This is an area familiar to attorneys who
concentrate in tort litigation: advertising can come back to haunt a
defendant.
unusually
competent (e.g., having tens of years of experience, employing
scientists
who have earned a Ph.D. in meteorology, etc.) can properly be held
to a
higher standard than a typical cloud seeder. Restatement (Second) of
Torts §
289(b) and § 299A (1965). This is an area familiar to attorneys who
concentrate in tort litigation: advertising can come back to haunt a
defendant.
As an example of how a negligence claim might arise, Jones (1991, p.
1177)
gave an example of a cloud seeder who decides to seed on a day for
which
heavy rains are forecast, therefore enhancing heavy rain to a
catastrophic
condition. I agree that it is a good example of negligence, but the
example
contains two hidden assumptions: (1) that forecasts of the amount of
rain
are usually accurate, and (2) that cloud seeding usually enhances
(not
decreases) the amount of rain. In an actual case, plaintiffs would
need to
prove those assumptions were true, which could be a formidable
burden.
1177)
gave an example of a cloud seeder who decides to seed on a day for
which
heavy rains are forecast, therefore enhancing heavy rain to a
catastrophic
condition. I agree that it is a good example of negligence, but the
example
contains two hidden assumptions: (1) that forecasts of the amount of
rain
are usually accurate, and (2) that cloud seeding usually enhances
(not
decreases) the amount of rain. In an actual case, plaintiffs would
need to
prove those assumptions were true, which could be a formidable
burden.
trespass or nuisance
trespass is the invasion of either a person or a thing upon the land
owned
by another person. Restatement Second Torts §§ 158, 165 (1965).
Typical cloud seeding releases tens or hundreds of grams of nontoxic
AgI
into a cloud or the air. Some legal commentators (e.g., Davis, 1974,
p. 430;
Ferdon, 1984, pp. 688-89; Jones, 1991, pp. 1174-75) have
suggested that
this release of AgI might be considered a trespass on the
plaintiff's land.
AgI
into a cloud or the air. Some legal commentators (e.g., Davis, 1974,
p. 430;
Ferdon, 1984, pp. 688-89; Jones, 1991, pp. 1174-75) have
suggested that
this release of AgI might be considered a trespass on the
plaintiff's land.
Several state statutes declare that weather modification is not a
trespass:
Colorado § 36-20-123(1) (1972);
North Dakota § 61-04.1-37(2) (1981);
Utah § 73-15-7 (1973) (no presumption of trespass);
Wisconsin § 93.35(14)(b) (1981).
trespass:
Colorado § 36-20-123(1) (1972);
North Dakota § 61-04.1-37(2) (1981);
Utah § 73-15-7 (1973) (no presumption of trespass);
Wisconsin § 93.35(14)(b) (1981).
I believe that a trespass claim for the AgI itself is a bit specious:
the quantity of AgI is trivial.
the AgI occurs as microscopic crystals, which are real, but not
perceptible
to the human senses.
the AgI itself is essentially harmless (Standler and Vonnegut,
1972), unlike
a noxious pollutant.
most of the AgI is contained in either the air, cloud, or rainwater,
none of
which may touch the land of a plaintiff who alleges that cloud
seeding
deprived him/her of rain.
the quantity of AgI is trivial.
the AgI occurs as microscopic crystals, which are real, but not
perceptible
to the human senses.
the AgI itself is essentially harmless (Standler and Vonnegut,
1972), unlike
a noxious pollutant.
most of the AgI is contained in either the air, cloud, or rainwater,
none of
which may touch the land of a plaintiff who alleges that cloud
seeding
deprived him/her of rain.
Instead of focusing on the AgI itself, I suggest focusing on the
effect of
the AgI in either: (a) diminishing rainfall that would have
otherwise
occurred or (b) causing excessive rainfall (e.g., a flood). In fact,
the
first law review article written on the subject of weather
modification
said:
If the cloud seeder intentionally causes rain to fall on the
plaintiff's
land, a trespass is committed as clearly as if he had turned a
stream of
water from a hose on plaintiff's house. Where the defendant does not
intend
to cause rainfall on the plaintiff's land, the plaintiff would be
required
to show that the defendant was either negligent or engaged in an
ultrahazardous activity.
anonymous, 1949, p. 532.
"Ultrahazardous activity" was the nomenclature in the First
Restatement of
Torts for what the Second Restatement in 1977 called an "abnormally
dangerous activity".
effect of
the AgI in either: (a) diminishing rainfall that would have
otherwise
occurred or (b) causing excessive rainfall (e.g., a flood). In fact,
the
first law review article written on the subject of weather
modification
said:
If the cloud seeder intentionally causes rain to fall on the
plaintiff's
land, a trespass is committed as clearly as if he had turned a
stream of
water from a hose on plaintiff's house. Where the defendant does not
intend
to cause rainfall on the plaintiff's land, the plaintiff would be
required
to show that the defendant was either negligent or engaged in an
ultrahazardous activity.
anonymous, 1949, p. 532.
"Ultrahazardous activity" was the nomenclature in the First
Restatement of
Torts for what the Second Restatement in 1977 called an "abnormally
dangerous activity".
It is well-established law that surface water entering plaintiff's
land can
be a trespass. For example, consider the following cases:
Red Lake Hunting & Fishing Club v. Burleson, 219 S.W.2d 115
(Tex.Civ.App.
1949);
Levene v. City of Salem, 229 P.2d 255 (Or. 1951);
Yenchko v. Grontkowski, 122 A.2d 705 (Penn. 1956);
Corrington v. Kalicak, 319 S.W.2d 888 (Mo.Ct.App. 1959);
Herro v. Board of County Road Commissioners, 118 N.W.2d 271 (Mich.
1962);
Bell v. Union Electric Co., 367 S.W.2d 812 (Mo.Ct.App. 1963);
Union Pacific Railroad v. Vale, Oregon Irrigation Dist., 253 F.Supp.
251
(D.Or. 1966);
First Kingston Corp. v. Thompson, 152 S.E.2d 837 (Ga. 1967);
Senn v. Bunick, 594 P.2d 837 (Or.App. 1979);
Ratliff Co. v Henley, 405 So.2d 141 (Ala. 1981);
Mack v. Edens, 412 S.E.2d 431 (S.Car.App. 1991);
U.S. v. Imperial Irrigation Dist., 799 F.Supp. 1052 (S.D.Calif.
1992);
Easterling v. Awtrey Building Corp., 770 So.2d 606 (Ala. 1999);
Canton v. Graniteville Fire Dist. Nr. 4, 762 A.2d 808 (Vt. 2000);
Dougan v. Rossville Drainage Dist., 15 P.3d 338 (Kan. 2000);
Sumitomo Corp. v. Deal, 569 S.E.2d 608 (Ga.App. 2002).
land can
be a trespass. For example, consider the following cases:
Red Lake Hunting & Fishing Club v. Burleson, 219 S.W.2d 115
(Tex.Civ.App.
1949);
Levene v. City of Salem, 229 P.2d 255 (Or. 1951);
Yenchko v. Grontkowski, 122 A.2d 705 (Penn. 1956);
Corrington v. Kalicak, 319 S.W.2d 888 (Mo.Ct.App. 1959);
Herro v. Board of County Road Commissioners, 118 N.W.2d 271 (Mich.
1962);
Bell v. Union Electric Co., 367 S.W.2d 812 (Mo.Ct.App. 1963);
Union Pacific Railroad v. Vale, Oregon Irrigation Dist., 253 F.Supp.
251
(D.Or. 1966);
First Kingston Corp. v. Thompson, 152 S.E.2d 837 (Ga. 1967);
Senn v. Bunick, 594 P.2d 837 (Or.App. 1979);
Ratliff Co. v Henley, 405 So.2d 141 (Ala. 1981);
Mack v. Edens, 412 S.E.2d 431 (S.Car.App. 1991);
U.S. v. Imperial Irrigation Dist., 799 F.Supp. 1052 (S.D.Calif.
1992);
Easterling v. Awtrey Building Corp., 770 So.2d 606 (Ala. 1999);
Canton v. Graniteville Fire Dist. Nr. 4, 762 A.2d 808 (Vt. 2000);
Dougan v. Rossville Drainage Dist., 15 P.3d 338 (Kan. 2000);
Sumitomo Corp. v. Deal, 569 S.E.2d 608 (Ga.App. 2002).
Liability for trespass requires plaintiff to prove either: intent,
negligence, or "abnormally dangerous activity" by the defendant.
Restatement
Second of Torts, § 166 (1965). It is an unanswered question whether
a cloud
seeder's intent to cause rain would justify trespass liability for a
consequential flood.
negligence, or "abnormally dangerous activity" by the defendant.
Restatement
Second of Torts, § 166 (1965). It is an unanswered question whether
a cloud
seeder's intent to cause rain would justify trespass liability for a
consequential flood.
private nuisance "A private nuisance is a nontrespassory invasion
of
another's interest in the private use and enjoyment of land."
Restatement
Second of Torts, § 821D (1979). A private nuisance requires an
invasion that
is either:
"intentional and unreasonable" or
unintentional and either:
negligent conduct,
reckless conduct, or
abnormally dangerous activities.
Id. § 822. Several law review notes (anonymous, 1960, pp.308-09;
Ferdon,
1984, p. 690-91; Jones, 1991, p. 1175-77) have discussed how
nuisance
might be applied to cloud seeding.
Two state statutes declare that weather modification is neither a
public nor
a private nuisance:
Colorado § 36-20-123(1) (1972);
Utah § 73-15-7 (1973) (no presumption of nuisance).
public nor
a private nuisance:
Colorado § 36-20-123(1) (1972);
Utah § 73-15-7 (1973) (no presumption of nuisance).
The famous torts textbook by Prosser and Keeton gives three
possibilities
for enjoining nuisances:
(1) if defendant's activity is "reasonable" and if that activity
causes an
"insubstantial" inference with the use of plaintiff's land, then
neither an
injunctive nor a tort remedy is available.
(2) if "defendant's activity is socially desirable"
and "reasonable", then
the injunction is not granted, but plaintiff can sue in tort for
damage that
plaintiff suffers if the effect of the defendant's acts
is "substantial ...
such as would be offensive or inconvenient to the normal person".
(3) if defendant's "conduct at the time and place is unreasonable"
and if
"the gravity of the harm outweighs the utility of the [defendant's]
conduct", then the injunction is granted.
William L. Prosser, W. Page Keeton, et al., Prosser and Keeton on
the Law of
Torts, 5th ed., West Publishing, 1984, at §§ 87, 88A, at pages 620,
631 of
the Hornbook edition.
possibilities
for enjoining nuisances:
(1) if defendant's activity is "reasonable" and if that activity
causes an
"insubstantial" inference with the use of plaintiff's land, then
neither an
injunctive nor a tort remedy is available.
(2) if "defendant's activity is socially desirable"
and "reasonable", then
the injunction is not granted, but plaintiff can sue in tort for
damage that
plaintiff suffers if the effect of the defendant's acts
is "substantial ...
such as would be offensive or inconvenient to the normal person".
(3) if defendant's "conduct at the time and place is unreasonable"
and if
"the gravity of the harm outweighs the utility of the [defendant's]
conduct", then the injunction is granted.
William L. Prosser, W. Page Keeton, et al., Prosser and Keeton on
the Law of
Torts, 5th ed., West Publishing, 1984, at §§ 87, 88A, at pages 620,
631 of
the Hornbook edition.
summary of torts
The reader is cautioned that the above possible torts are all
hypothetical
in the context of weather modification: there has apparently been no
actual
case, anywhere in the USA, in which plaintiffs in a weather
modification
case have won by using such a tort theory.
Of the above torts, I suggest that plaintiff's attorneys consider
trespass
and nuisance in the context of weather modification.
trespass
and nuisance in the context of weather modification.
proof of causation
Regardless of whether plaintiff proceeds on a fault-based tort, or
on a
strict-liability tort, plaintiff must prove in court that
defendant's acts
caused the harm to plaintiff. Articles in law reviews and symposia
agree
that proof of causation is the most difficult obstacle facing
plaintiffs in
weather modification cases:
"a staggering burden". (Stark, 1957, p. 706)
"Before the courts will award damages ... in weather modification
cases,
they must be convinced ... that (1) the modification attempt did, in
fact,
alter the weather and (2) the modification of the weather was, in
fact, the
cause of the plaintiff's damage and that this damage would not have
occurred
otherwise. Because of the nature of the weather modification
problem, these
factors will be exceedingly difficult, if not impossible, to prove."
(Johnson, 1968, p. 85)
"Failure to prove that the defendants' actions were the legal cause
of harm
suffered by the plaintiffs has been the downfall of most persons
seeking
judicial relief against weather modifiers." (Davis, 1974, pp. 412-
413)
"Failure to demonstrate the linkage between conduct of the defendant
and
harm to the plaintiff's property remains the major impediment in
litigation
involving hail suppression and other types of cloud seeding."
(Davis, 1977,
p. 40)
"probably be a futile effort with his insurmountable proof
problems."
(Kirby, 1978, p. 60).
"With only one exception [i.e., Southwest Weather Research, which
was a
request for an injunction, not a tort case], plaintiffs to date have
been
unsuccessful in bearing that burden" of proving causation. (Ferdon,
1984, p.
686) "... plaintiff's seemingly impossible burden of proving
causation ...."
Id. at 698.
"The primary reason plaintiffs have failed in court is that it is
difficult,
if not impossible, to prove causation." (Jones, 1991, p. 1169)
An attorney wrote in 1978:
Each storm system is individual, and it is impossible to ascertain
the
effect of any modification effort for the very simple reason that a
cloud
cannot be unmodified and modified at the same time.
William A. Thomas (1978, p. 119).
A law student, writing in 1984, commented that:
Despite satellites, computers, and technical wizardry, it is
impossible to
predict exactly how much rain will fall in a given area at a given
time,
even under normal, unmodified conditions. .... Because it is
impossible
to predict exactly how much precipitation a given cloud would
produce in the
absence of seeding, it is equally impossible to measure the effect
of
seeding.
Ferdon (1984, p. 683-84).
In my opinion, both of these two authors were wrong to declare the
"impossibility" of such proof. Proof in tort litigation does not
need to be
absolute, but only to convince the jurors that the defendant caused
the harm
is more likely (i.e., probability greater than 50%) than the
defendant did
not cause the harm. Such a proof should be technically possible.
Nonetheless, past cases in the USA show that plaintiffs have not
been able
to prove that cloud seeding caused his/her harm. There are several
reasons
for this apparently insurmountable problem of proving causation:
In cases during the 1950s and 1960s, scientific research had not yet
progressed to the point of being able to prove causation. Problems
proving
causation in old cases does not necessarily imply that current cases
will
also fail.
"impossibility" of such proof. Proof in tort litigation does not
need to be
absolute, but only to convince the jurors that the defendant caused
the harm
is more likely (i.e., probability greater than 50%) than the
defendant did
not cause the harm. Such a proof should be technically possible.
Nonetheless, past cases in the USA show that plaintiffs have not
been able
to prove that cloud seeding caused his/her harm. There are several
reasons
for this apparently insurmountable problem of proving causation:
In cases during the 1950s and 1960s, scientific research had not yet
progressed to the point of being able to prove causation. Problems
proving
causation in old cases does not necessarily imply that current cases
will
also fail.
Evidence that proves causation will involve atmospheric physics
(e.g.,
thermodynamics of water vapor, liquid water, and ice) and
statistical
analyses of cloud seeding experiments. Such evidence will be
incomprehensible to jurors and judges, because they are ignorant of
both
physics and statistics. (Incidentally, this is a common problem in
tort
cases involving science, technology, or medicine. In my opinion,
courts in
the USA have not yet found a satisfactory way of handling scientific
evidence. Indeed, courts in the USA avoided evaluating scientific
evidence
until the landmark June 1993 U.S. Supreme Court decision in Daubert.)
Scientists who are experts in weather modification may be more
sympathetic
to the defendant cloud seeder than to injured plaintiffs, so it may
be
difficult for plaintiffs to find credible expert witnesses to
testify on
their behalf.
Cloud seeding produces a small perturbation (e.g., perhaps 10% extra
rainfall as the result of cloud seeding) of a phenomena that has
much larger
natural fluctuations. Without a complete understanding of the
physical
processes in the cloud and measurement of all relevant parameters,
one can
not accurately predict the effect of cloud seeding on a single
cloud.
Because we lack this complete understanding and because we lack
adequate
data, we can currently only know the effect of cloud seeding by
statistical
comparison of large numbers of seeded and unseeded clouds. However,
attorneys for the defendant cloud seeder will likely object to
statistical
evidence and demand only evidence that is restricted to the actual
cloud(s)
involved in the case.
In cases where plaintiff alleges that cloud seeding caused a flood
from one
particular cloud, problems with proving causation prevent plaintiff
from
succeeding in tort. The only way that I see for plaintiffs to make
such a
proof is, at the time of the rain that causes the flooding, to
collect
rainwater in special bottles that are free of metallic impurities,
then
later (i.e., after a damage claim) have that rainwater analyzed in a
chemical laboratory that can detect concentrations of silver in
rainwater as
small as 0.01 nanograms/cm3. Collection of such evidence by flood
victims is
impractical. However, it would be practical for technicians at a
government
agency to collect such rain samples routinely during cloud seeding
programs.
A government regulation or statute might specify the collection of
such
samples, and the retention of the samples for, e.g., at least two
years
after each rainfall.
from one
particular cloud, problems with proving causation prevent plaintiff
from
succeeding in tort. The only way that I see for plaintiffs to make
such a
proof is, at the time of the rain that causes the flooding, to
collect
rainwater in special bottles that are free of metallic impurities,
then
later (i.e., after a damage claim) have that rainwater analyzed in a
chemical laboratory that can detect concentrations of silver in
rainwater as
small as 0.01 nanograms/cm3. Collection of such evidence by flood
victims is
impractical. However, it would be practical for technicians at a
government
agency to collect such rain samples routinely during cloud seeding
programs.
A government regulation or statute might specify the collection of
such
samples, and the retention of the samples for, e.g., at least two
years
after each rainfall.
In cases where plaintiff alleges that cloud seeding caused a
drought, there
may be statistical evidence that may be useful to plaintiff.
Scientific
research involving hundreds of clouds, half of which were randomly
chosen to
be seeded, the other half of which remained in a natural state, have
provided statistical evidence of the effect of cloud seeding.
However, such
evidence is very difficult to explain to juries, attorneys, and
judges,
because of the sophisticated mathematics involved in the hypothesis
testing.
drought, there
may be statistical evidence that may be useful to plaintiff.
Scientific
research involving hundreds of clouds, half of which were randomly
chosen to
be seeded, the other half of which remained in a natural state, have
provided statistical evidence of the effect of cloud seeding.
However, such
evidence is very difficult to explain to juries, attorneys, and
judges,
because of the sophisticated mathematics involved in the hypothesis
testing.
inconsistent position
of cloud seeders
William A. Thomas (1978, p. 120) mentioned that commercial cloud
seeders in
the past have been inconsistent in their statements. When
advertising their
services, cloud seeders claim to be able to enhance rainfall. But
when
plaintiffs sue them for causing excessive rainfall, the cloud seeder
denies
that the seeding caused the excess rainfall. A similar observation
was made
by Stark (1957, p. 707, n. 24).
The attorney defending a company that hired a cloud seeder in Adams
v.
California was faced with the problem that his client's own analysis
showed
that the cloud seeding caused a 20% increase in rainfall. When
plaintiffs
who had been harmed by a flood allegedly caused by the cloud seeding
cited
this 20% figure, defendant's attorney discredited his own client's
work by
arguing that his client was ignorant of proper statistical analysis.
(Morris, 1968, pp. 164, 176-77, 179; Mann, 1968, pp. 705, 710)
v.
California was faced with the problem that his client's own analysis
showed
that the cloud seeding caused a 20% increase in rainfall. When
plaintiffs
who had been harmed by a flood allegedly caused by the cloud seeding
cited
this 20% figure, defendant's attorney discredited his own client's
work by
arguing that his client was ignorant of proper statistical analysis.
(Morris, 1968, pp. 164, 176-77, 179; Mann, 1968, pp. 705, 710)
A science journalist noted:
Weather modifiers are pleased to receive credit when the weather is
behaving
as desired, but, should a destructive or unwanted storm bring a
lawsuit,
they readily (and thus far successfully) take refuge in the absence
of
scientific proof of causality.
(Carter, 1973, p. 1348).
Weather modifiers are pleased to receive credit when the weather is
behaving
as desired, but, should a destructive or unwanted storm bring a
lawsuit,
they readily (and thus far successfully) take refuge in the absence
of
scientific proof of causality.
(Carter, 1973, p. 1348).
A skillful litigator for plaintiffs, may be able to exploit this
inconsistent position of cloud seeders, to destroy the credibility
of cloud
seeders in a trial.
inconsistent position of cloud seeders, to destroy the credibility
of cloud
seeders in a trial.
---------------------------------------------------------------------
-----------
5. Need alternative to tort litigation
Finally, I note that the requirement to prove causation in tort
litigation
was (and may still be) an insurmountable obstacle for plaintiffs. It
is
inequitable to modify weather to benefit some people, but not
compensate
those who have been harmed by the modified weather. If burdens of
proof from
traditional tort law (e.g., the problem of proving causation) are
insurmountable obstacles to such plaintiffs, then legislatures (or
judges)
need to develop alternative ways of compensating injured plaintiffs.
Finally, I note that the requirement to prove causation in tort
litigation
was (and may still be) an insurmountable obstacle for plaintiffs. It
is
inequitable to modify weather to benefit some people, but not
compensate
those who have been harmed by the modified weather. If burdens of
proof from
traditional tort law (e.g., the problem of proving causation) are
insurmountable obstacles to such plaintiffs, then legislatures (or
judges)
need to develop alternative ways of compensating injured plaintiffs.
For example, the statutory law may evolve to specify that only the
state or
federal governments could initiate weather modification activities,
although
private cloud seeders might do the actual work under contract to the
government. Such an approach would recognize that weather is part of
the
natural environment (also including land, water, and air) and any
attempt to
modify the environment should be controlled or regulated by the
government.
state or
federal governments could initiate weather modification activities,
although
private cloud seeders might do the actual work under contract to the
government. Such an approach would recognize that weather is part of
the
natural environment (also including land, water, and air) and any
attempt to
modify the environment should be controlled or regulated by the
government.
A governmental agency that contracted for the weather modification
could
also compensate landowners who were harmed by the modified weather.
This
agency could tax landowners who would benefit from increased
rainfall (e.g.,
a tax of a few cents/acre of land) and use that money specifically
to (a)
pay for the weather modification and (b) compensate landowners who
were
deprived of rainfall or who suffered a flood. Such an agency could
compensate injured landowners according to a formula in a regulation
or
statute, without proving causation according to traditional tort
law. This
agency would have many advantage over traditional tort law: reduced
legal
fees, no delays in courts, and no requirements for proving causation
that
genuinely injured plaintiffs can not meet.
could
also compensate landowners who were harmed by the modified weather.
This
agency could tax landowners who would benefit from increased
rainfall (e.g.,
a tax of a few cents/acre of land) and use that money specifically
to (a)
pay for the weather modification and (b) compensate landowners who
were
deprived of rainfall or who suffered a flood. Such an agency could
compensate injured landowners according to a formula in a regulation
or
statute, without proving causation according to traditional tort
law. This
agency would have many advantage over traditional tort law: reduced
legal
fees, no delays in courts, and no requirements for proving causation
that
genuinely injured plaintiffs can not meet.
In such an arrangement, the cloud seeder would be an innocent agent
of the
landowners who received the enhanced rainfall. Such a legal position
would
be analogous to respondeat superior (i.e., ordering the employer,
not the
employee personally, to compensate the victim for a harmful act
within the
scope of employment). Unless the conduct of the cloud seeder was
either
negligent or reckless, it seems inappropriate to me to hold the
cloud seeder
legally responsible for modified weather that benefits some people
and harms
other people.
of the
landowners who received the enhanced rainfall. Such a legal position
would
be analogous to respondeat superior (i.e., ordering the employer,
not the
employee personally, to compensate the victim for a harmful act
within the
scope of employment). Unless the conduct of the cloud seeder was
either
negligent or reckless, it seems inappropriate to me to hold the
cloud seeder
legally responsible for modified weather that benefits some people
and harms
other people.
The amount of rainfall naturally varies from year to year, so there
is no
injury to plaintiff if the actual rainfall is slightly below the
long-term
average (i.e., the 50%tile) amount. For that reason, perhaps the
plaintiff
in a drought case should be compensated only for monetary loss
resulting
from the difference between the 25%tile rainfall (i.e., the amount
that is
exceeded in three out of four years with unmodified weather) and the
actual
rainfall. This proposal helps prevent the defendant from
compensating
plaintiff for effects of the variability of naturally occurring
weather, for
which defendant is not responsible, and for which plaintiff must
assume the
risk. My proposal for the 25%tile value as a boundary was
arbitrarily
chosen, only for use as an example in this essay. The boundary
actually used
should be determined by a legislative committee that writes a
statute that
establishes the rules for compensating those who are harmed by
weather
modification.
is no
injury to plaintiff if the actual rainfall is slightly below the
long-term
average (i.e., the 50%tile) amount. For that reason, perhaps the
plaintiff
in a drought case should be compensated only for monetary loss
resulting
from the difference between the 25%tile rainfall (i.e., the amount
that is
exceeded in three out of four years with unmodified weather) and the
actual
rainfall. This proposal helps prevent the defendant from
compensating
plaintiff for effects of the variability of naturally occurring
weather, for
which defendant is not responsible, and for which plaintiff must
assume the
risk. My proposal for the 25%tile value as a boundary was
arbitrarily
chosen, only for use as an example in this essay. The boundary
actually used
should be determined by a legislative committee that writes a
statute that
establishes the rules for compensating those who are harmed by
weather
modification.
insurance
Alternatively, landowners could purchase insurance against drought
and
floods. The insurance company would compensate those harmed by
either
natural or modified weather, similar to no-fault insurance for
automobile
accidents. In situations where the insurance company had paid a
large amount
for claim(s) and the insurance company suspected negligent or
reckless
conduct by cloud seeders, the insurance company could sue the cloud
seeders
under the right of subrogation in the insurance contracts. Such a
use of
insurance has several significant advantages for landowners over
tort
litigation:
would also compensate landowners for harm from unusual natural
weather (a
drought has the same effect on the landowner, regardless of whether
the
drought is naturally occurring or the result of modified weather);
remove the need for landowners to prove that a cloud seeder caused
the
drought or flood;
solve the problems associated with class action litigation by
landowners
that was discussed above in the Lundsford and Saba cases.
spread the costs of litigation over all who pay for insurance,
instead of
concentrating the costs of litigation on plaintiff(s).
---------------------------------------------------------------------
-----------
6. Support of Basic Scientific Research
Many of the problems with the law of weather modification are
attributable
to our lack of basic scientific understanding of how clouds produce
rain,
and how cloud seeding modifies processes in the cloud.
Many of the problems with the law of weather modification are
attributable
to our lack of basic scientific understanding of how clouds produce
rain,
and how cloud seeding modifies processes in the cloud.
While the need for increased financial support for basic scientific
research
is an important issue of public policy that faces legislators, that
issue is
not, strictly speaking, part of the law of cloud seeding. Therefore,
I moved
the discussion of financial support for scientific research from an
earlier
version of this essay to a separate document, to shorten this essay
on the
law of cloud seeding.
research
is an important issue of public policy that faces legislators, that
issue is
not, strictly speaking, part of the law of cloud seeding. Therefore,
I moved
the discussion of financial support for scientific research from an
earlier
version of this essay to a separate document, to shorten this essay
on the
law of cloud seeding.
Only after the applicable scientific principles are understood can
we have a
rational application of law to weather modification, such as
determining in
tort litigation if a cloud seeder caused a flood or drought, or
determining
if a cloud seeder was negligent. Good laws and good regulations can
not be
based on possibilities and conjectures. Scientific proof that a
weather
modification technique is both safe and effective should occur
before a
government grants a permit for an operational weather modification
project
that uses that technique.
we have a
rational application of law to weather modification, such as
determining in
tort litigation if a cloud seeder caused a flood or drought, or
determining
if a cloud seeder was negligent. Good laws and good regulations can
not be
based on possibilities and conjectures. Scientific proof that a
weather
modification technique is both safe and effective should occur
before a
government grants a permit for an operational weather modification
project
that uses that technique.
---------------------------------------------------------------------
-----------
7. Property Rights in Water
from Cloud Seeding
This essay has focused on injunctions prohibiting cloud seeding and
tort
liability for cloud seeding (e.g., either causing a drought, causing
a
flood, or otherwise interfering with the use of plaintiff's land)
because
those are the subject of all of the past court cases in the USA on
weather
modification and because I am interested in tort law and equitable
remedies
(e.g., injunctions).
from Cloud Seeding
This essay has focused on injunctions prohibiting cloud seeding and
tort
liability for cloud seeding (e.g., either causing a drought, causing
a
flood, or otherwise interfering with the use of plaintiff's land)
because
those are the subject of all of the past court cases in the USA on
weather
modification and because I am interested in tort law and equitable
remedies
(e.g., injunctions).
However, there is another legal issue in weather modification that
has
apparently been ignored by everyone, except one law professor, Ray
Jay
Davis. This neglected legal issue is to answer the question of who
owns the
right to use the extra water that is produced by cloud seeding.
has
apparently been ignored by everyone, except one law professor, Ray
Jay
Davis. This neglected legal issue is to answer the question of who
owns the
right to use the extra water that is produced by cloud seeding.
In the western USA, there are attorneys who specialize in the
complex area
of water rights, which is a subset of property law. Because I am not
personally knowledgeable about water rights law in the various
states, I
choose to avoid summarizing those laws here.
complex area
of water rights, which is a subset of property law. Because I am not
personally knowledgeable about water rights law in the various
states, I
choose to avoid summarizing those laws here.
When encountering new issues in law, attorneys try to find an
analogy to
issues for which there is well settled law. A law student suggested
that
clouds were analogous to wild ducks who flew over the land. (Brooks,
1949,
p. 119) A law professor later suggested that clouds are "rivers
flowing
through our skies". (Davis, 1968, p. 104)
analogy to
issues for which there is well settled law. A law student suggested
that
clouds were analogous to wild ducks who flew over the land. (Brooks,
1949,
p. 119) A law professor later suggested that clouds are "rivers
flowing
through our skies". (Davis, 1968, p. 104)
unjust enrichment of nonpayers?
One could envision this issue arising in the context of a cloud
seeder who
is paid by farmer A to increase the rainfall on A's land. Extra rain
[also]
falls on land owned by farmer B; B's land is perhaps adjacent to A's
land,
or at least near A's land. We recognize that B has received a
benefit from
the extra rainfall, for which B paid nothing. From one point of
view, B has
been unjustly enriched. If a judge accepts this unjust enrichment
argument,
who should B pay: the cloud seeder (who caused the extra rain) or
reimburse
A for hiring the cloud seeder? The answer to that question might
depend on
who owns the right to use the extra rainfall. In defending himself,
B might
argue that he never requested the benefit: the extra rain was an
unsolicited
gift to B. And B might also argue that any rain falling on his land
was his
to use, an argument that is obviously correct prior to the invention
of
cloud seeding technology, and might continue to be correct. From the
viewpoint of economics, B is a "free rider": B received a benefit
from which
someone else paid the entire cost, including any potential liability
for
negligence, etc. Without answering the interesting question about
who owns
the right to use the extra water, the obvious solution to this kind
of
problem (as well as many other potential problems) is to have the
government
regulate all cloud seeding and to tax all landowners in the target
area, so
that every potential beneficiary pays.
While experts on water rights law have speculated about the legal
rights of
cloud seeders to use the extra water that they produce (Davis, 1968,
p. 112;
Beck, 2001, p. 3-22), it seems to me that there is a simpler
solution
that requires no new law. After receiving a permit to modify
weather, the
cloud seeder has a legal right to attempt to modify weather, but the
right
to use any extra water belongs to the landowner on whose land the
extra
precipitation falls. My proposal treats the cloud seeder by analogy
to many
other professionals (e.g., investment advisers, surgeons, dentists,
engineers, etc.) who are paid for their services (i.e., making
a "best
effort"), but any benefits and ordinary risks of those services
belong to
their clients. However, the cloud seeder, like other professionals,
remains
responsible for any negligence or recklessness in performing
services.
rights of
cloud seeders to use the extra water that they produce (Davis, 1968,
p. 112;
Beck, 2001, p. 3-22), it seems to me that there is a simpler
solution
that requires no new law. After receiving a permit to modify
weather, the
cloud seeder has a legal right to attempt to modify weather, but the
right
to use any extra water belongs to the landowner on whose land the
extra
precipitation falls. My proposal treats the cloud seeder by analogy
to many
other professionals (e.g., investment advisers, surgeons, dentists,
engineers, etc.) who are paid for their services (i.e., making
a "best
effort"), but any benefits and ordinary risks of those services
belong to
their clients. However, the cloud seeder, like other professionals,
remains
responsible for any negligence or recklessness in performing
services.
deprivation downwind
from cloud seeding?
A more complicated problem is that of the deprivation of rainfall
downwind
from where cloud seeding has enhanced rainfall. The downwind
atmosphere
(clear air and clouds together) obviously has less water content as
a result
of the greater rainfall upwind, hours, or a day, earlier. If
landowners have
a legal right to receive the naturally occurring rainfall, then
downwind
landowners have been deprived of rainfall.
From the viewpoint of atmospheric physics, such concerns seem
trivial.
Clouds are not efficient at producing rain or snow: most of the
water (or
ice) in a cloud does not reach the ground during that one shower or
snowstorm. Even after a vigorous rain shower, thunderstorm, or
blizzard,
most of the original cloud remains in the sky. A meteorologist
explained for
orographic clouds:
In a typical precipitating cap cloud about 20 percent of the water
vapor in
the upwind air mass (which we shall assume is cloud free) condenses.
Of
this, about 20 percent falls out as precipitation. Therefore, 100
(0.20 ×
0.20) = 4% of the water vapor is removed. If cloud seeding increases
the
precipitation by 10 percent, then the water vapor is depleted by an
additional 100 (0.10 × 0.04) = 0.4%, a relatively small figure.
trivial.
Clouds are not efficient at producing rain or snow: most of the
water (or
ice) in a cloud does not reach the ground during that one shower or
snowstorm. Even after a vigorous rain shower, thunderstorm, or
blizzard,
most of the original cloud remains in the sky. A meteorologist
explained for
orographic clouds:
In a typical precipitating cap cloud about 20 percent of the water
vapor in
the upwind air mass (which we shall assume is cloud free) condenses.
Of
this, about 20 percent falls out as precipitation. Therefore, 100
(0.20 ×
0.20) = 4% of the water vapor is removed. If cloud seeding increases
the
precipitation by 10 percent, then the water vapor is depleted by an
additional 100 (0.10 × 0.04) = 0.4%, a relatively small figure.
The argument is quite valid and has been used for many years to
explain that
a rather trivial reduction in total water would occur in the area
downwind
of a target area. ....
Elliott, 1974, p. 61.
explain that
a rather trivial reduction in total water would occur in the area
downwind
of a target area. ....
Elliott, 1974, p. 61.
From this viewpoint, the deprivation of rain suffered by downwind
landowners
is de minimis, a harm that is too trifling to be compensated (i.e.,
De
minimis non curat lex.). Alternatively, the computation of the
amount of
damages will be speculative, and thus too uncertain to permit a
court to
order compensation, because the plaintiff is not likely to have data
on the
amount of water that was wrongfully removed by cloud seeding that
would have
otherwise have fallen on plaintiff's land.
landowners
is de minimis, a harm that is too trifling to be compensated (i.e.,
De
minimis non curat lex.). Alternatively, the computation of the
amount of
damages will be speculative, and thus too uncertain to permit a
court to
order compensation, because the plaintiff is not likely to have data
on the
amount of water that was wrongfully removed by cloud seeding that
would have
otherwise have fallen on plaintiff's land.
In a few days, some of the rainfall from previous cloud seeding will
have
evaporated and contributed to a new cloud, thus renewing the cycle
of water
in the atmosphere. The new cloud will be larger as a result of the
evaporation of the enhanced rainfall that was caused by previous
cloud
seeding. I wonder if the legal concern about downwind deprivation of
rainfall would be better cast as a delay in downwind rain. If the
delay is
only a few days, such harm would be de minimis.
have
evaporated and contributed to a new cloud, thus renewing the cycle
of water
in the atmosphere. The new cloud will be larger as a result of the
evaporation of the enhanced rainfall that was caused by previous
cloud
seeding. I wonder if the legal concern about downwind deprivation of
rainfall would be better cast as a delay in downwind rain. If the
delay is
only a few days, such harm would be de minimis.
Davis (1968, p. 116) suggested that, to restore the deprivation,
cloud
seeders also seed clouds downwind from the first target zone, but
that
remedy only pushes an increased deprivation further downwind. Again,
the
obvious solution to this kind of problem (as well as many other
potential
problems) is (1) to have the government regulate all cloud seeding
and (2)
to have either a government agency or private insurance compensate
landowners for below average rainfall.
cloud
seeders also seed clouds downwind from the first target zone, but
that
remedy only pushes an increased deprivation further downwind. Again,
the
obvious solution to this kind of problem (as well as many other
potential
problems) is (1) to have the government regulate all cloud seeding
and (2)
to have either a government agency or private insurance compensate
landowners for below average rainfall.
A leading treatise on water rights law in the USA says:
Does intervention mean taking rain from someone else further down
the cloud
drift? Scientists appear to say no, but lay persons do not believe
readily,
and therefore the threat of litigation has to be considered.
Beck, 2001, p. 3-12.
This reaction by laymen is one of the most exasperating features of
making
public policy about science or technology. Laymen will form a
personal
opinion, even a strong belief, without any rational reasons to
support their
opinion. On the other hand, scientists ideally form opinions after
considering all of the relevant facts and theories, including
measurements
and calculations.
Does intervention mean taking rain from someone else further down
the cloud
drift? Scientists appear to say no, but lay persons do not believe
readily,
and therefore the threat of litigation has to be considered.
Beck, 2001, p. 3-12.
This reaction by laymen is one of the most exasperating features of
making
public policy about science or technology. Laymen will form a
personal
opinion, even a strong belief, without any rational reasons to
support their
opinion. On the other hand, scientists ideally form opinions after
considering all of the relevant facts and theories, including
measurements
and calculations.
---------------------------------------------------------------------
-----------
8. Conclusion
It is clear that man already has the technology to modify weather
and that
more effective technology can be designed. However, we need
scientific
knowledge to understand how and when to use such weather
modification
technology, so that intelligent choices can be made, instead of
guesswork.
Civilization would immensely benefit if damage from drought, floods,
hurricanes, hail, tornadoes, etc. could be reduced. But before we
reap such
practical benefits, we need much more basic scientific research.
It is clear that man already has the technology to modify weather
and that
more effective technology can be designed. However, we need
scientific
knowledge to understand how and when to use such weather
modification
technology, so that intelligent choices can be made, instead of
guesswork.
Civilization would immensely benefit if damage from drought, floods,
hurricanes, hail, tornadoes, etc. could be reduced. But before we
reap such
practical benefits, we need much more basic scientific research.
Despite the potential immense economic importance of cloud seeding
and the
existence of commercial cloud seeding technology since 1950, the
courts in
the USA have not yet begun to resolve legal issues involving either
negligent cloud seeding or the rights of landowners to rain from the
clouds
that are either above their land or upwind from their land.
and the
existence of commercial cloud seeding technology since 1950, the
courts in
the USA have not yet begun to resolve legal issues involving either
negligent cloud seeding or the rights of landowners to rain from the
clouds
that are either above their land or upwind from their land.
After reading all of the reported court cases in the USA on this
topic, I
conclude that states need to create a government agency to
compensate people
who have been harmed by weather modification, or, alternatively,
landowners
need to purchase flood/drought insurance.
topic, I
conclude that states need to create a government agency to
compensate people
who have been harmed by weather modification, or, alternatively,
landowners
need to purchase flood/drought insurance.
In my companion essay, I conclude that the government should provide
more
long-term financial support for basic scientific research.
more
long-term financial support for basic scientific research.
---------------------------------------------------------------------
-----------
9. Bibliography
In addition to the cases cited above, the following articles in
scientific
or legal journals and books may be of interest. My companion essay
on the
technology and history of cloud seeding contains additional
citations to the
scientific literature. Because this essay will be of interest mostly
to
nonattorneys, I have used a standard academic citation format,
instead of
the customary legal citation format.
In addition to the cases cited above, the following articles in
scientific
or legal journals and books may be of interest. My companion essay
on the
technology and history of cloud seeding contains additional
citations to the
scientific literature. Because this essay will be of interest mostly
to
nonattorneys, I have used a standard academic citation format,
instead of
the customary legal citation format.
anonymous, Note: "Who Owns the Clouds?," Stanford Law Review, Vol.
1, pp.
43-63, November 1948.
1, pp.
43-63, November 1948.
anonymous, Note: "Artificial Rainmaking," Stanford Law Review, Vol.
1, pp.
508-537, April 1949.
1, pp.
508-537, April 1949.
anonymous, Note: "Legal Remedies for 'Cloud-Seeding' Activities:
Nuisance or
Trespass?," Duke Law Journal, Vol. 1960, pp. 305-09, 1960.
Nuisance or
Trespass?," Duke Law Journal, Vol. 1960, pp. 305-09, 1960.
Robert E. Beck, Waters and Water Rights, Vol. 1, § 3.04,
Lexis/Nexis, 2001.
Lexis/Nexis, 2001.
Stanley Brooks, Comment: "The Legal Aspects of Rainmaking,"
California Law
Review, Vol. 37, pp. 114-121, 1949.
California Law
Review, Vol. 37, pp. 114-121, 1949.
Luther J. Carter, News Article, "Weather Modification: Colorado
Heeds Voters
in Valley Dispute," Science, Vol. 180, pp. 1347-1350, 29 June 1973.
Heeds Voters
in Valley Dispute," Science, Vol. 180, pp. 1347-1350, 29 June 1973.
Ray Jay Davis, "Special Problems of Liability and Water Resources
Law," pp.
103-162, in Howard J. Taubenfeld, editor, Weather Modification and
The Law,
Oceana Publications, 1968.
Law," pp.
103-162, in Howard J. Taubenfeld, editor, Weather Modification and
The Law,
Oceana Publications, 1968.
Ray Jay Davis, "State Regulation of Weather Modification," Arizona
Law
Review, Vol. 12, pp. 35-69, Spring 1970.
Law
Review, Vol. 12, pp. 35-69, Spring 1970.
Ray Jay Davis, "Weather Modification Law Developments," Oklahoma Law
Review,
Vol. 27, pp. 409-439, Summer 1974.
Review,
Vol. 27, pp. 409-439, Summer 1974.
Ray Jay Davis, "Legal Uncertainties of Weather Modification," pp. 32-
64, in
William A. Thomas, editor, Legal and Scientific Uncertainties of
Weather
Modification, Duke University Press, 1977.
64, in
William A. Thomas, editor, Legal and Scientific Uncertainties of
Weather
Modification, Duke University Press, 1977.
Robert D. Elliott, "Experience of the Private Sector," pp. 45-89, in
W.N.
Hess, editor, Weather and Climate Modification, Wiley-Interscience,
1974.
W.N.
Hess, editor, Weather and Climate Modification, Wiley-Interscience,
1974.
Julie Ferdon, "Federal Weather Modification Projects: Compensating
the
Landowner," Arizona Law Review, Vol. 26, pp. 681-698, Spring 1984.
the
Landowner," Arizona Law Review, Vol. 26, pp. 681-698, Spring 1984.
Allan L. Grauer and Bob Erickson, Comment: "The Weathermaker and the
Law,"
South Dakota Law Review, Vol. 1, pp. 105-120, Spring 1956.
Law,"
South Dakota Law Review, Vol. 1, pp. 105-120, Spring 1956.
Wallace E. Howell, "Cloud Seeding and the Law in the Blue Ridge
Area,"
Bulletin of the American Meteorological Society, Vol. 46, pp. 328-
332, June
1956.
Area,"
Bulletin of the American Meteorological Society, Vol. 46, pp. 328-
332, June
1956.
Ralph W. Johnson, "Legal Implications of Weather Modification," pp.
76-102,
in Howard J. Taubenfeld, editor, Weather Modification and The Law,
Oceana
Publications, 1968.
76-102,
in Howard J. Taubenfeld, editor, Weather Modification and The Law,
Oceana
Publications, 1968.
Gregory N. Jones, Comment: "Weather Modification: The Continuing
Search for
Rights and Liabilities," Brigham Young Univ. Law Review, Vol. 1991,
pp.
1163-1199, 1991.
Search for
Rights and Liabilities," Brigham Young Univ. Law Review, Vol. 1991,
pp.
1163-1199, 1991.
Jerome W. Kirby, "Judicial Regulation of Weather Modification," pp.
55-61,
in Ray Jay Davis and Lewis O. Grant, editors, Weather Modification:
Technology and Law, American Association for the Advancement of
Science,
Symposium, 124 pp., 1978.
55-61,
in Ray Jay Davis and Lewis O. Grant, editors, Weather Modification:
Technology and Law, American Association for the Advancement of
Science,
Symposium, 124 pp., 1978.
Dean E. Mann, "The Yuba City Flood: A Case Study of Weather
Modification
Litigation," Bulletin of the American Meteorological Society, Vol.
49, pp.
690-714, July 1968.
Modification
Litigation," Bulletin of the American Meteorological Society, Vol.
49, pp.
690-714, July 1968.
Edward A. Morris, "Preparation and Trial of Weather Modification
Litigation," pp. 163-184, in Howard J. Taubenfeld, editor, Weather
Modification and The Law, Oceana Publications, 1968.
Litigation," pp. 163-184, in Howard J. Taubenfeld, editor, Weather
Modification and The Law, Oceana Publications, 1968.
Jack C. Oppenheimer, "The Legal Aspects of Weather Modification,"
The
Insurance Law Journal, Nr. 424, pp. 314-322, May 1958.
The
Insurance Law Journal, Nr. 424, pp. 314-322, May 1958.
Ronald B. Standler and Bernard Vonnegut, "Estimated Possible Effects
of AgI
Cloud Seeding on Human Health," J. Applied Meteorology, Vol. 11, pp.
1388-91, December 1972.
of AgI
Cloud Seeding on Human Health," J. Applied Meteorology, Vol. 11, pp.
1388-91, December 1972.
Donald D. Stark, "Weather Modification," California Law Review, Vol.
45, pp.
698-711, December 1957.
45, pp.
698-711, December 1957.
William A. Thomas, "Observations on This Symposium," pp. 119-120, in
Ray Jay
Davis and Lewis O. Grant, editors, Weather Modification: Technology
and Law,
American Association for the Advancement of Science, Symposium, 124
pp.,
1978.
Ray Jay
Davis and Lewis O. Grant, editors, Weather Modification: Technology
and Law,
American Association for the Advancement of Science, Symposium, 124
pp.,
1978.
---------------------------------------------------------------------
-----------
About the author
I took several classes in atmospheric physics during 1971-76, while
I was in
graduate school, although my emphasis was in general physics. My
first
peer-reviewed scientific publication was a paper that reviewed the
published
literature on the toxicity of silver iodide used in cloud seeding. I
did
scientific research in atmospheric electricity and lightning during
1971-79
and earned a Ph.D. in physics in 1977. The drastic decrease in the
U.S.
Government's financial support for scientific research in
atmospheric
electricity caused me to change fields in 1982 from basic scientific
research to practical engineering research on protection of
electronic
equipment from transient overvoltages, such as caused by lightning.
When
financial support for research in all of my areas of science and
engineering
was annihilated in 1990, I began to change careers to law. I am
currently an
attorney in Massachusetts.
I took several classes in atmospheric physics during 1971-76, while
I was in
graduate school, although my emphasis was in general physics. My
first
peer-reviewed scientific publication was a paper that reviewed the
published
literature on the toxicity of silver iodide used in cloud seeding. I
did
scientific research in atmospheric electricity and lightning during
1971-79
and earned a Ph.D. in physics in 1977. The drastic decrease in the
U.S.
Government's financial support for scientific research in
atmospheric
electricity caused me to change fields in 1982 from basic scientific
research to practical engineering research on protection of
electronic
equipment from transient overvoltages, such as caused by lightning.
When
financial support for research in all of my areas of science and
engineering
was annihilated in 1990, I began to change careers to law. I am
currently an
attorney in Massachusetts.
---------------------------------------------------------------------
-----------
this document is at http://www.rbs2.com/weather.htm
My most recent search for court cases on this topic was on 27 Sep
2002.
My most recent search for state statutes on this topic was on 20 Oct
2002.
revised 23 Dec 2002
My most recent search for court cases on this topic was on 27 Sep
2002.
My most recent search for state statutes on this topic was on 20 Oct
2002.
revised 23 Dec 2002
return to my homepage
Subscribe to: Posts (Atom)
How can I pick out the best product from those listed on this site? https://www.woodenbetonit.com
ReplyDelete