Analysis by Brian Hodges, Pacific Legal Foundation 5/1/2009
The County’s attempt to include shorelines as part of its CAO update raises a jurisdictional question regarding local government’s authority to regulate shoreline property under the GMA after the Legislature adopted Engrossed Substitute House Bill (ESHB) 1933 Laws of 2003, ch. 321 § 1, codified at RCW 90.58.030 and RCW 36.70A.480. As explained below, ESHB 1933 reaffirmed the Legislature’s intent that “critical areas within the jurisdiction of the shoreline management act shall be governed by the shoreline management act and that critical areas outside the jurisdiction of the shoreline management act shall be governed by the growth management act.” RCW 90.58.030 (Findings, Intent). The effect of ESHB 1933 was unclear when the statute was adopted. Since then, a series of appellate court decisions make it clear that, under RCW 36.70A.480, critical areas within the jurisdiction of the SMA are governed exclusively by the SMA. See Futurewise v. Western Washington Growth Management Hearings Bd., 164 Wn.2d 242,243-45 (2008) (Johnson, J.M., lead opinion) (affirming Evergreen Islands v. City of Anacortes, WWGMHB No. 05-2-0016, 2005 WL 3689069 (Dec. 27, 2005)); Biggers v. City of Bainbridge Island, 162 Wn.2d 683, 699 (2007); Biggers v. City of Bainbridge Island, 124 Wn. App. 858, 866-67 (2004).
Overview of the SMA and GMA
Some background on the relationship between the SMA and the GMA is useful. The SMA was enacted by citizen initiative in 1971 to protect and manage all reasonable and appropriate uses of the shorelines of Washington State, and to prevent adverse effects to public health, land, vegetation, wildlife, and the rights of navigation. RCW 90.58.020. To achieve these goals, each county and city containing “shorelines of the state” is required to develop a shoreline master program (SMP) setting forth use and development regulations for shoreline areas and incorporating the current shoreline guidelines as promulgated by Washington’s Department of Ecology. RCW 90.58.080; WAC 173-26. In 1995 and again in 2003, the Legislature amended the SMA to require local governments to periodically update their SMPs. RCW 90.58.080(4).
Under the SMA, regulation of shorelines requires more than just local action, the development regulations must be approved and adopted by the Department of Ecology. RCW 90.58.090. The SMA requires that shoreline regulations be based on “the most current, accurate, and complete scientific and technical information available that is applicable to the issues of concern.” WAC 173-26-201(2)(a); RCW 90.58.100(1). As part of this requirement, local government must develop a shoreline inventory, in which it must incorporate all pertinent and available information, data, and materials relating to its shorelines. WAC 173-26-201(3)(c). If the shoreline regulations include “shorelines of the state,” the local government must also establish shoreline designations that give preference to uses enumerated in RCW 90.58.020, which include public access, recreational uses, single family residences, and protection of property rights. WAC 173-26-251(3)(c); RCW 90.58.020; RCW 90.58.100. Only after Ecology reviews the proposed development regulations for compliance with the SMA and approves the SMP, do the shoreline regulations become valid state regulations governing the use and development of shoreline property. RCW 90.58.090(7); WAC 173-26-030(2).
The GMA was enacted in 1990 and 1991 to coordinate the State’s growth via comprehensive land use planning, including regulations to address protection of critical areas, increased traffic congestion, school overcrowding, urban sprawl, and loss of agricultural and rural lands. RCW 36.70A.010; see generally Richard L. Settle, The Growth Management Revolution in Washington: Past, Present, and Future, 16 U. Puget Sound L. Rev. 867 (1993). The GMA imposes a general obligation to adopt comprehensive land use regulations, including critical areas ordinances, by balancing various non-prioritized planning goals and requirements, including, in relevant part, designating and protecting critical areas while protecting private property rights. Swinomish Indian Tribal Cmmty v. W. Wash. Growth Mgmt. Hearings Bd., 161 Wn.2d 415, 424-25 (2007); RCW 36.70A.020(6), (10). The GMA requires that each planning city and county periodically review and, if necessary, update its comprehensive plan and development regulations. RCW 36.70A.130. As part of this update process, the GMA requires cities and counties to designate and protect critical areas by including “best available science” in its record and developing locally appropriate regulations based on local circumstances and the Act’s various planning goals and requirements. RCW 36.70A.172(1); RCW 36.70A.320; RCW 36.70A.3201; Swinomish, 161 Wn.2d at 426.
Unlike the SMA, which requires oversight and approval of a state agency, at the GMA’s very foundation is the mandate providing local jurisdictions broad deference in planning decisions: the “GMA acts exclusively through local governments and is to be construed with the requisite flexibility to allow local governments to accommodate local needs.” Viking Properties, Inc. v. Holm, 155 Wn.2d 112, 125-26 (2005); see also WAC 365-195-010(3) (The GMA “process should be a ‘bottom up’ effort . . . with the central locus of decision-making at the local level.”).
The decision of local government to adopt a regulation under the SMA or the GMA will have significant procedural and substantive consequences for property owners.
The GMA has substantial requirements when actions might affect areas defined as “critical areas.” RCW 36.70A.172(1). Among other things, the GMA was amended in 1995 to require local governments to designate and protect critical areas using the “best available science” – a benign term with often a heavy price tag. Id. The SMA, with the goal of balancing use and protection, is less burdensome.
Futurewise, 164 Wn.2d at 244. Indeed, distinct from the current interpretation of the GMA mandate to protect critical areas, the SMA does not prohibit shoreline development simply because it may fall within the definition of a critical area. Instead, the SMA mandates regulations that coordinate development in sensitive areas:
[T]he SMA does not prohibit all development in the shoreline. Rather, its purpose to allow careful development of shorelines by balancing public access, preservation of shoreline habitat and private property rights through coordinated planning, i.e., shoreline master plans which must be approved by DOE.
Overlake Fund v. Shoreline Hearings Board, 90 Wn. App. 746, 761 (1998) (citing RCW 90.58.020). In this regard, the SMA mandates that shoreline property owners have the right to certain permissible uses of property and/or priority shoreline development. See Biggers, 162 Wn.2d at 686, 706 ( affirming a right to certain shoreline development as recognized in RCW 90.58.020 and RCW 90.58.100). Therefore, preservation of each statute’s jurisdiction is essential to preserve recognized substantive rights of private property owners.
Partial Integration of SMA and GMA Resulted In An Erroneous Conclusion that All Shorelines of the State Are Critical Areas Subject to Concurrent Regulation Under the GMA
In 1995, the Legislature partially integrated the SMA and the GMA by adding the SMA’s goals and policies as an additional GMA planning goal (Laws of 1995, ch. 347, § 104, codified at former RCW 36.70A.480 (1995)), and transferring jurisdiction for appeals of shoreline master programs from the shoreline hearings boards to the growth management hearings boards. Laws of 1995, ch. 347, § 311, codified at RCW 90.58.190; Laws of 1995, ch. 347, § 108, amending RCW 36.70A.280). This partial integration, however, lead to confusion regarding the regulation of shoreline areas as critical areas, and a controversial growth board decision concluding that all shorelines of statewide significance were categorically critical areas, and therefore subject to critical area regulation under the GMA. See Everett Shorelines Coalition v. City of Everett, CPSGMHB Case No. 02-3-009c at 17(Final Decision and Order, 2003).
The Legislature Established Exclusive Regulatory Jurisdiction of the Shorelines Under the SMA
The Everett Shorelines Coalition decision “so conflicted with the law and established practice that the legislature acted the next session by enacting a law explicitly rejecting that board’s interpretation.” Futurewise, 164 Wn.2d at 244 (citing ESHB 1933). The amended law unequivocally stated that critical areas located within shorelines are to be regulated exclusively under the SMA:
The legislature intends that critical areas within the jurisdiction of the shoreline management act shall be governed by the shoreline management act and critical areas outside the jurisdiction of the shoreline management act shall be governed by the growth management act.
RCW 90.58.030 (Findings – Intent). This amendment confirmed that local government was required to follow the process set forth in the SMA to develop regulations for the use and development of its shorelines:
The legislature further intends that the quality of information currently required by the shoreline management act to be applied to the protection of critical areas within shorelines of the state shall not be limited or changed by the provisions of the growth management act.
RCW 90.58.030 (Findings – Intent); RCW 36.70A.480(3)(a) (“the protection of critical areas . . . within shoreline of the state shall be accomplished only though the local government’s shoreline master program and shall not be subject to the procedural and substantive requirements of [the GMA]”). As unequivocally stated in the GMA, “[n]othing in RCW 36.70A.480 shall be construed to authorize a county or city to adopt regulations applicable to [“shorelines of the state’] that are inconsistent with the provisions of [the SMA].” RCW 36.70A.481.
The “Legislature Meant What it Said” – Critical Areas Within SMA Jurisdiction Are Governed Only By the SMA
Even after the legislature enacted ESHB 1933, various entities, including state government agencies, local governments, and activist organizations continued to push for interim regulation of shorelines as critical areas under the GMA until such time as the municipality updated its shoreline master program. In Futurewise, the city of Anacortes adopted an updated CAO to comply with the GMA. Several environmental activist organizations (collectively “Futurewise”) filed a petition for review, claiming that the County’s CAO update failed to adequately update critical area regulations on its marine shoreline. Futurewise argued that ESHB 1933 required local government to adopt interim GMA critical area regulations for critical areas located in shorelines until such a time as it adopted its next updated SMP. (The city had adopted its most recent SMP in 2000, and was scheduled to revise its SMP by 2012).
The growth board rejected this argument, concluding that:
[T]he express legislative intent in enacting ESHB 1933 is to provide that critical areas within the jurisdiction of the Shoreline Management Act be governed by the Shoreline Management Act, while all other critical areas are governed by the Growth Management Act.
Evergreen Islands, WWGMHB No. 05-2-0016, at 26. Based on the plain language of ESHB 1933, the board ruled that critical area regulations in shorelines “must meet the requirements for a segment of a master program relating to critical areas in the shorelines . . . [and] must be submitted to Ecology for review and approval.” Evergreen Islands, WWGMHB No. 05-2-0016 at 29. On July 31, 2008, our Supreme Court affirmed the Evergreen Islands decision, concluding that “the legislature meant what it said . . . [c]ritical areas within the jurisdiction of the SMA are governed only by the SMA.” Futurewise, 164 Wn.2d at 244-45 (Johnson, J.M., lead opinion) (emphasis added).
Futurewise and Evergreen Islands are not outliers. In 2007, our Supreme Court similarly concluded that “the SMA is the exclusive source of shoreline development regulation . . . .” Biggers, 162 Wn.2d at 699. In Biggers, the City of Bainbridge Island enacted rolling moratoria imposing a three-year freeze on permit applications for shoreline development. Biggers, 162 Wn.2d at 687-89. In justifying the rolling moratoria, Bainbridge Island argued, in part, that the GMA granted the authority to enact rolling moratoria. The Biggers court invalidated the moratoria and explained that, “[t]he GMA does not displace the SMA as the framework for statewide shoreline regulation.” Biggers, 162 Wn.2d at 700.
[T]he protection of Washington’s shorelines for all citizens is an important state constitutional interest reflected in the SMA enacted by the people. No local government may impose regulations that are in conflict with the state’s general laws. Here, the City’s imposition of repeated moratoria was unconstitutional and unlawful.
Biggers, 162 Wn.2d at 702 (Johnson, J.M., lead opinion). The Supreme Court’s Biggers decision affirmed this Court’s earlier holding that the SMA governed shoreline areas: “The GMA clearly specifies that chapter 90.58 RCW (the SMA) governs the unique criteria for shoreline development. In other words, the SMA trumps the GMA . . .” Biggers, 124 Wn. App. at 867. There is simply no authority permitting local government to adopt GMA critical area regulations on shoreline property that is located within the SMA’s jurisdiction.
SMP REGULATIONS MAY NOT UNREASONABLY BURDEN OR ABROGATE PROPERTY RIGHTS
The proposed update (expansion of buffers and re-designation of structures/uses as non-conforming) to the County’s SMP, as applied to particular landowners, may contain significant constitutional and statutory flaws that should be remedied before the County considers the ordinance for final approval.
Our Supreme Court has repeatedly concluded that the SMA intended to strike a balance between the public interest in protecting shorelines and the property rights of shoreline landowners. See Biggers v. City of Bainbridge Island, 162 Wn.2d 683, 687 (2007) (the SMA seeks to balance protecting shorelines with the rights of private property owners); accord, Buechel v. State Dept. of Ecology, 125 Wn.2d 196, 203 (1994); Nisqually Delta Ass’n v. City of Dupont, 103 Wn.2d 720, 726 (1985).
Washington’s landowners have the fundamental right “to acquire and hold property, and to protect and defend the same.” American Legion Post No. 149 v. Washington State Dept. Of Health, 164 Wn.2d 570, 607 (2008) (emphasis added); State v. Vander Houwen, 163 Wn.2d 25, 36 (2008); Grant County Fire Protection Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 812-13 (2004). Property is defined by state law, Board of Regents v. Roth, 408 U.S. 564, 577 (1972), and Washington has defined property in the broadest of terms:
Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment, and disposal. Anything which destroys any of these elements of property, to that extent destroys the property itself. The substantial value of property lies in its use. If the right of use be denied, the value of property is annihilated and ownership is rendered a barren right.
Ackerman v. Port of Seattle, 55 Wn.2d 400, 409 (1960) (emphasis added). The right to make reasonable use of one’s private property is a constitutionally protected right. Government activities that invade or interfere with the right to use and enjoy property is a taking. Pruitt v. Douglas County, 116 Wn.App. 547, 559 (2003). Thus, even if title and possession of property remain undisturbed, a taking still may have occurred in the constitutional sense. See State ex. rel. Smith v. Superior Court, 26 Wash. 278, 287 (1901).
While government can adopt reasonable regulations to protect the public interest, it cannot “abrogate a property owner’s constitutional right to protect his property.” Vander Houwen, 163 Wn.2d at 36; Biggers, 162 Wn.2d at 697 (A complete prohibition on protective bulkheads would “conflict with [the] regulatory system established by the SMA.”).
Washington’s constitution prohibits government from enacting laws that take or damage private property without first paying just compensation. See Wash. Const. art. I, § 16 (“No private property shall be taken or damaged for public or private use without just compensation having been first made . . . .”); Dickgieser v. State, 153 Wn.2d 530, 534-35 (2005). It has long been established that government regulation that goes too far in interfering with the rights of landowners may result in a taking. See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). In other words, an ordinance is not insulated from a takings challenge merely because a sweeping legislative generalization has been made that the ordinance protects society from a conceived harm, whether it be public safety, environmental degradation, etc. Rather, the more pertinent question is where a permissible “regulation” ends and an unconstitutional “taking” begins. Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962).
The Takings Clause operates to bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. See Armstrong v. United States, 364 U.S. 40, 49 (1960); Mission Springs v. City of Spokane, 134 Wn.2d 947, 964 (1988). In other words, it assures fundamental fairness in the way that government treats its citizens and distributes the burdens of community life.
The lack of site-specific science poses a problem for the County because the SMA only requires that a county protect shorelines as critical areas from new harm; it does not require regulations to enhance or restore already degraded critical areas. See Swinomish Indian Tribal Cmty. v. W. Wash. Growth Mgmt. Hearings Bd., 161 Wn.2d 415, 427-31 (2007) (rejecting the argument that protection of critical areas required that the county “restore habitat functions and values that no longer exist”). Therefore, before adopting critical area regulations, it is incumbent on the County to include science that that actually identifies the existing functions and values of the critical area that will be threatened if use of the property is allowed. Swinomish, 161 Wn.2d at 430; Tracy v. City of Mercer Island, CPSGMHB No. 92-3-0001, at 25 (Final Decision and Order, Jan. 5, 1993) (The requirement to protect a critical area “presumes that the critical area presently exists.”) (emphasis added).
In addition to constituting a taking, a land use regulation that too drastically curtails an owner’s use of property may also effect a denial of substantive due process. Presbytery v. King County, 114 Wn.2d 320, 329 (1990); Orion Corp. v. State, 109 Wn.2d 621 (1987). Substantive due process and takings claims are alternatives, representing separate sources of constitutional protection. Id. While the Takings Clause limits government power by requiring just compensation when the government takes private property, the Due Process Clause protects citizens from government actions that are “arbitrary, unreasonable, and capricious.” Pruneyard Shopping Center v. Robbins, 447 U.S. 74, 84-85 (1980). In Washington state, even if a regulation is insulated from a takings challenge, it still must withstand the due process test of reasonableness. Guimont v. Clarke, 121 Wn.2d at 608.
A three-fold inquiry is necessary to determine: “(1) whether the regulation is aimed at achieving a legitimate public purpose, (2) whether it uses means that are reasonably necessary to achieve that purpose, and (3) whether it is unduly oppressive on the landowner.” Guimont, 121 Wn.2d at 609; see also, Orion Corp. v. State, 109 Wn.2d at 646-47; West Main Assocs. v. Bellevue, 106 Wn.2d 47, 52 (1986); Lawton v. Steele, 152 U.S. 133 (1894); Goldblatt v. Hempstead, 369 U.S. at 594-95.
Shoreline Regulations May Not Infringe On Property Rights
The SMA and its implementing regulations do not authorize the County to place the burden of shoreline restoration, enhancement or improvement on private property owners. Instead, the regulations adopted by the Department of Ecology to implement the SMA provide unequivocally that:
The policy goals of the act, implemented by the planning policies of master programs, may not be achievable by development regulations alone. Planning policies should be pursued through the regulation of development of private property only to an extent that is consistent with all relevant constitutional and other legal limitations (where applicable, statutory limitations such as those contained in chapter 82.02 RCW and RCW 43.21C.060) on the regulation of private property. Local government should use a process designed to assure that proposed regulatory or administrative actions do not unconstitutionally infringe upon private property rights.
WAC 173-26-186(5) (emphasis added). The regulations also state:
Local master programs shall include regulations and mitigation standards ensuring that each permitted development will not cause a net loss of ecological functions of the shoreline; local governments shall design and implement such regulations and mitigation standards in a manner consistent with all relevant constitutional and other legal limitations of the regulation of private property.
WAC 173-26-186(8)(b)(i) (emphasis added). Local government is instructed that if it cannot meet its “necessary” policy goals under constitutional and statutory limitations on the regulation of private property, then must purchase the property – it cannot simply take the property. See 90.58.240; WAC 173-26-191(1)(a).
Buffers may be an easy and common tool to regulate critical areas, but they are not required. See Swinomish Indian Tribal Cmty. v. W. Wash. Growth Mgmt. Hearings Bd., 161 Wn.2d 415, 430-31 (2007). Indeed, buffers that are too big are not necessary to protect the actual functions and values of critical areas, and constitute enhancement or restoration regulations exceeding the GMA’s requirements. Swinomish, 161 Wn.2d at 427-31; Ferry County v. Concerned Friends of Ferry County, 155 Wn.2d 824, 835 (2005); Honesty in Envtl. Analysis Legislation (HEAL) v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 96 Wn. App. 522, 533-34 (1999); see also Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1028 (1992); James S. Burling, Private Property Rights and the Environment After Palazzolo, 30 B.C. Envtl. Aff. L. Rev. 1, 13 (2002) (The Lucas Court has “refuted the notion that a regulation designed to protect the public interest by preventing harm is automatically immune from takings liability.”).
Both federal and state courts have held buffers subject to a takings analysis. Dolan v. City of Tigard, 512 U.S. 374, 380, 389 (1994); see also Lucas, 505 U.S. at 1018-19 (conservation easements and similar negative regulation deprive the landowner of a distinct property interest and may result in a taking); Isla Verde Int’l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 752-54 (2002) (invalidating open space requirement intended to protect the environment and provide critical habitat); Citizens’ Alliance for Property Rights v. Sims, 145 Wn. App. 649 (2008), rev. denied, 203 P.3d 378 (2009) (invalidating open space set aside intended to protect against stormwater runoff under state statute incorporating Nollan/Dolan federal constitutional takings test). To survive a takings challenge, local government must demonstrate “a close causal nexus between the burdens imposed by the regulations and the social costs that would otherwise be imposed by the property’s unregulated use.” R. S. Radford, Of Course a Land Use Regulation That Fails to Substantially Advance Legitimate State Interests Results in a Regulatory Taking, 15 Fordham Envtl. L. Rev. 353, 390 (2004) (citing Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 838-39 (1984)); Burton v. Clark County, 91 Wn. App. 505, 521-22 (1998) (To establish nexus, the County “must show that the development . . . will create or exacerbate the identified public problem” and that its proposed condition “tends to solve, or at least to alleviate, the identified public problem.”). It is this causal connection, “not a means-end fit, that offers real protection against the imposition of unjustified or disproportionate burdens on individual property owners.” Radford, 15 Fordham Envtl. L. Rev. at 391. Once nexus is shown, local government must show that it engaged in “some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.” Dolan, 512 U.S. at 391; See also Mark W. Cordes, Legal Limits on Development Exactions: Responding to Nollan and Dolan, 15 N. Ill. U. L. Rev. 513, 550 (1995) (“[O]ne clear principle that does emerge from Dolan is that most at risk will be those exactions that are imposed because the local government has already decided that it wants the land in question and uses the development approval process as a means to get it.”). Thus, to impose buffers on private property, the County must do more than just rely on generalized studies.
Constitutional and statutory law prohibit the County from imposing excessive and inflexible buffers on shoreline properties. Any buffers adopted should include built-in flexibility to respond to site specific circumstances such that the buffer restrictions are reasonably necessary as a direct result of the proposed development or use of the property. See Dolan, 512 U.S. 374; Citizens’ Alliance, 145 Wn. App. 649.
Nonconforming Use Designation Impacts Property Rights
The County’s goal of enhancing and restoring shoreline areas does not support its proposal to render existing structures and uses non-conforming. This designation places a significant burden on property owners, including the availability and cost of insurance and financing, reduction of the usability and value of the property, and the possibility of creating blight. Re-designation of structures and/or uses impacts property rights and must be supported by site-specific criteria.
Regulation Cannot Be Based On Precautionary Principle
While it is often politically expedient to adopt overly precautionary measures, the precautionary principle is not science, and cannot satisfy the scientific requirements of the GMA or SMA. Expressed in its most basic form, the precautionary principle reflects the age-old adage: “better safe than sorry.” See Frank B. Cross, Paradoxical Perils of the Precautionary Principle, 53 Wash. & Lee L. Rev. 851, 851 (1996). As a legal principle, the precautionary principle insists that the lack of full scientific certainty should not stand in the way of regulatory action. Cross, 53 Wash. & Lee L. Rev. at 851. The precautionary principle (as expressed in the Brennan and Culverwell study) suggests that government should act to protect the environment, even in the absence of clear evidence of harm and notwithstanding the costs of such actions. Cross, 53 Wash. & Lee L. Rev. at 851; see also AR V8, Tab 72, Index 776 at 20.
Proponents and critics of the precautionary principle agree that, when used as a decision-making tool, the principle is properly considered as a matter of policy, not science. See Holly Doremus, Precaution, Science, and Learning While Doing in Natural Resource Management, 82 Wash. L. Rev. 547, 558-60 (2007) (resort to the precautionary principle is a moral argument “that makes no pretense of value neutrality”); id. at 560 (citing Gail Charnley & E. Donald Elliott, Risk Versus Precaution: Environmental Law and Public Health Protection, 31 Envtl. L. Rep. 10,363, 10,365 (2002) (arguing that regulatory decisions adopted under the precautionary principle should disclose “that policy, not science, underlies those standards.”)). A decision to adopt the policy-based precautionary solution will constitute an unjustified departure from BAS, and will be invalid. Swinomish, 161 Wn.2d at 430-31; Ferry County, 155 Wn.2d at 835.
Brian T. Hodges
Pacific Legal Foundation
Pacific Northwest Regional Office
10940 NE 33rd Place, Ste. 210
Bellevue, WA 98004
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