A high-stakes legal battle over a century of smelter contamination dumped into the Columbia River by a Canadian mining and smelting giant may be decided by the U.S. Supreme Court.

The court issued an order today inviting the U.S. Solicitor General – the lead lawyer for the Bush administration – to file an amicus brief on behalf of one or more of the parties in the complex case, filed in 2004 against Teck Cominco Ltd. by two leaders of the Colville Confederated Tribes.

The high court’s order doesn’t necessarily mean the justices have agreed to accept the case, said Mary Sue Wilson, a senior assistant attorney general for Washington state in Olympia.

“We don’t think it’s a signal either way. It’s not unusual for the court to ask, what does the U.S. government have to say?,” Wilson said.

The litigation was brought by Joe Pakootas and D.R. Michel under the “citizen’s suit” provisions of Superfund in an effort to force Teck Cominco to pay for an environmental cleanup of Lake Roosevelt.

Teck Cominco, based in Vancouver, B.C., claims it would only be subject to Superfund, the U.S. law governing toxic waste cleanups, if it had “arranged” for the waste to end up in the United States.

Last July, the 9th U.S. Circuit Court of Appeals rebuffed that argument and ruled that Teck Cominco is subject to U.S. toxic waste cleanup laws. That ruling was hailed by Washington Gov. Chris Gregoire, who called it “good news for all Washingtonians.”

On Oct. 30, the court reiterated its position after lawyers for Teck Cominco unsuccessfully petitioned for a rehearing. Teck Cominco filed an immediate appeal to the U.S. Supreme Court.

For months, the court has been silent on whether it would accept or reject the case, which legal experts have called a unique use of Superfund’s “citizen’s suit” provision in an effort to compel a foreign company to clean up under strict U.S. cleanup laws.

Additional briefing in the case could take two to six months, Wilson said.

The judges on Monday said they lacked jurisdiction under the strict definition of those eligible for trial by military tribunal under a law enacted last year.

The Defense Department "will make a determination as to whether it's appropriate to file an appeal or not," Fratto said. "It does show that the system is taking great care to be within the letter of the law."

Defense Secretary Robert Gates, who was traveling in Asia, said he was not familiar with the details of the ruling.

"If it is as described, that's the reason we have a judicial process in all of this and we'll have to take a look at it and see what the implications are," he said.

Setback for administration
The rulings did not affect U.S. authority to indefinitely hold the terrorism suspects detained at the Guantanamo Bay naval base in southeast Cuba.

But it was the latest setback for the Bush administration's efforts to put the Guantanamo captives through some form of judicial process.

"In no way does this decision affect the appropriateness of the military commission system," Fratto said.

The surprise decisions do not spell freedom for the detainees.

Salim Ahmed Hamdan of Yemen and Omar Khadr, a Canadian who was 15 when he was arrested on an Afghan battlefield, were the only two of the roughly 380 prisoners at Guantanamo charged with crimes under a reconstituted military trial system.

Experts blame haste

Defense attorneys and legal experts blamed the rush by Congress and President Bush last year to restore the war-crimes trials after the U.S. Supreme Court threw out the previous system, declaring it unconstitutional. In a remarkable coincidence, it was Hamdan's lawsuit that wound up in the Supreme Court.

In both of Monday's cases, the judges ruled that the new legislation says only "unlawful enemy combatants" can be tried by the military trials, known as commissions. But Khadr and Hamdan previously had been identified by military panels here only as enemy combatants, lacking the critical "unlawful" designation.

"The fundamental problem is that the law was not carefully written," said Madeline Morris, a Duke University law professor. "It was rushed through in a flurry of political pressure from the White House ... and it is quite riddled with internal contradictions and anomalies."

Prosecuting attorneys in both cases indicated they would appeal the dismissals. But the court designated to hear the appeals - known as the court of military commissions review - doesn't even exist yet, said Marine Col. Dwight Sullivan, chief of military defense attorneys at Guantanamo Bay.

Army Maj. Beth Kubala, spokeswoman for the Office of Military Commissions that organizes the trials, said "the public should make no assumption about the future of military commissions."

She said they will continue to operate openly and fairly and added that dismissals of the charges "reflect that the military judges operate independently."

She declined to comment on how the Office of Military Commissions planned to respond to the setbacks, saying she didn't want to speculate.

Military prosecutors declined to appear before reporters after their cases collapsed.

The distinction between classifications of enemy combatants is important because if they were "lawful," they would be entitled to prisoner of war status under the Geneva Conventions.

A Pentagon spokesman said the issue was little more than semantics.

Navy Cmdr. Jeffrey Gordon said the entire Guantanamo system deals with people who act as "unlawful enemy combatants," operating outside any internationally recognized military, without uniforms or other things that make them party to the Geneva Conventions.

"It is our belief that the concept was implicit that all the Guantanamo detainees who were designated as 'enemy combatants' ... were in fact unlawful," Gordon said.

But Morris said the Military Commissions Act defines a lawful enemy combatant, in addition to a uniformed fighter belonging to a regular force - as "a member of a militia, volunteer corps or organized resistance movement belonging to a state party engaged in such hostilities and who meets four additional criteria."

Seymour M. Lazar and Paul T. Selzer were accused of participating in a kickback and laundering scheme that involved $2.4 million in alleged secret payments dating back to 1981 in connection with more than 50 class-action or shareholders lawsuits.

The far-reaching indictment cites dozens of class- and shareholder-derivative action lawsuits against corporate giants including Denny's, United Airlines, Standard Oil, Genentech and Pacific Gas & Electric. The indictment says the suits netted Lerach's former firm, Milberg Weiss, more than $44 million in fees over more than 25 years.

The statement by the San Diego-based Lerach Coughlin firm came amid speculation over William Lerach's possible legal situation. Federal prosecutors in California have been investigating for seven years whether Lerach and his former law partners played a role in possibly illegal kickbacks to clients in multimillion-dollar class-action lawsuits.

Word that Lerach, 61, may retire from the firm came around the same time one of his former law partners, David Bershad, reportedly has been in discussions with prosecutors about a possible plea deal. Lerach's former firm, Milberg Weiss, as well as former partners Bershad and Steven Schulman, were indicted last year.

Under Bush, the FCC has expanded its indecency rules, taking a much harder line on obscenities uttered on broadcast television and radio.

While the court sent the case back to the commission to rewrite its indecency policy, it said that it was "doubtful" that the agency would be able to "adequately respond to the constitutional and statutory challenges raised by the networks."

The networks hailed the decision.

Martin, the chairman of the commission, attacked the court's reasoning.

He said that if the agency was unable to prohibit some vulgarities during prime time, "Hollywood will be able to say anything they want, whenever they want."

Beginning with the FCC's indecency finding in a case against NBC for an obscenity uttered by the U2 singer Bono during the Golden Globes awards ceremony in 2003, Bush's Republican and Democratic appointees to the commission have imposed a tougher policy by punishing any station that broadcasts a fleeting expletive.

That includes profanities blurted out on live shows like the Golden Globes or scripted shows like "NYPD Blue," which was cited in the case.

Reversing decades of more lenient policy, the commission had found that the mere utterance of certain profane words implied that sexual or excretory acts were carried out and therefore violated the indecency rules.

But the court said vulgar words were just as often used out of frustration or excitement, and not to convey any broader obscene meaning.

"In recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced sexual or excretory organs or activities," the court said

Adopting an argument made by lawyers for NBC, the court then cited examples in which Bush and Cheney had used the same language that would be penalized under the policy. Bush was caught on videotape last July using a common vulgarity that the commission finds objectionable in a conversation with Prime Minister Tony Blair of Britain.

Three years ago, Cheney was widely reported to have muttered an angry profane version of "get lost" to Sen. Patrick Leahy on the floor of the U.S. Senate.

Tai Mak's wife, Fuk Heung Li; and son, Billy Yui Mak, pleaded guilty to aiding and abetting the violation of the export-control laws.

Chi Mak was convicted May 10 of acting as an unregistered agent for China, giving false statements to the FBI, conspiracy to violate export-control laws and attempting to violate export-control laws. He was accused of attempting to pass information on U.S. naval technology to China, the newspaper report said. Prosecutors said he put the information on two encrypted disks and gave them to his brother to transport to China.

Chi Mak's wife, Rebecca Laiwah Chiu, is scheduled to go on trial Tuesday, the Times said.

The new protections, added in the Fair and Accurate Transactions Act, went into effect in early December 2006. The provisions were meant to protect shoppers from identity thieves, who have been known to dig through trash dumps to steal receipts in search of credit-card information.

Very shortly after the law took effect, class-action lawyers pounced, charging that dozens of retailers had violated the FCRA by continuing to print receipts without redacting all or some of the data . Citing what they called questionable wording in the statute, attorneys for the retailers claimed their clients were operating under the position that compliance with the law meant redacting either the credit card number or the expiration date, but not necessarily both. (Judge for yourself - the statute reads: "No person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt... .")

Companies found guilty of failing to observe this portion of the FCRA can be fined between $100 to $1,000 per violation, a potentially huge sum for retailers that print tens of thousands of receipts per day.

The plaintiffs filed most of their cases in California, where the Ninth Circuit Court of Appeals had issued a pair of decisions that signaled it was apt to be more lenient in deciding which actions (or inactions) constitute a "willful" violation of the FCRA. The Ninth Circuit sent that signal in Safeco Insurance v. Burr and Geico General Insurance v. Edo, saying the insurers violated the FCRA when they failed to tell customers anytime that low credit scores affected the rates they paid. The AP story on Monday's decision says that consumer groups point to the notification requirement in FCRA as "the cornerstone to cleansing credit reports of inaccurate information."

The Ninth Circuit held that defendants could be found liable for a willful violation of the FCRA absent proof that they either actually knew that they would be violating the statute or acted in reckless disregard of whether they were violating it.

The two insurance cases were appealed to the Supreme Court, which on Monday reversed the Ninth Circuit's opinions, sending them back to the lower courts for further deliberation. The High Court's majority opinion, written by Justice David Souter, effectively confined the Ninth Circuit's open-ended definition of what kinds of actions constitute reckless disregard. In order for a company to be found liable for a reckless violation, Souter wrote, its conduct must involve an unjustifiably high risk of harm that is either known to a company or is so obvious that it should have been known.

Charles A. Patrizia, a partner with the Washington office of law firm Paul Hastings, which is representing a number of the retailers targeted in the class-action suits,
said the high court's ruling was a positive development for the defendants, but he doubted that the any of the plaintiffs would go so far as to drop their cases as a result of today's decision.

"So now the question becomes, even with the expiration date printed on the receipt and only part of the credit card number, is there an unjustifiably high risk that someone is going to figure out a way to guess those last missing digits and use it? That risk seems pretty low."

Mark Rasch, a former Justice Department prosecutor who now serves as a managing director at FTI Consulting, called Monday's decision good news for the retailers in the class-action cases, but said the jury was still out for its impact on consumer rights.

"While this decision doesn't mean companies can avoid liability simply by avoiding knowing about legal requirements, it means companies are free to be wrong, as long as they're not grossly wrong," Rasch said.

"Notices as common as these would take on the character of formalities, and formalities tend to be ignored,'' Justice David Souter wrote for seven of the court's nine justices.

The court also unanimously limited the applicability of a provision that permits damage awards even when consumers don't suffer any injury. Although the justices didn't go as far as the insurance industry had sought, they said Safeco wasn't subject to the provision because it didn't recklessly violate the law.

The insurance industry had said it faced the prospect of billions of dollars in damage claims had it lost the high court case. Some 2,600 lawsuits alleging violations of the fair-credit law are pending in federal courts.

The "most critical aspects'' of the ruling favored the industry, said David F. Snyder, a lawyer with the American Insurance Association. "The Supreme Court balanced both consumer needs and business needs in a common-sense decision.''