Petition for Writ of Certiorari — Judson Witham, Petitioner v. New York State Department of Environmental Conservation, et al.

Supreme Court briefFeb 14, 2018

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SUPREME COURT OF THE UNITED STATES

VS

JUDGE TARRENCE BOYLE

4TH

CIRCUIT DISTRICT COURT NORTH CAROLINA

Witham v. DEC New York State et al (5:17-cv-00171), North Carolina

THE US COURT OF APPEALS

4TH

CIRCUIT RICHMOND VIRGINIA

Appeals 17-1791

4TH

US COURT OF APPEALS LAST RULED ON THE FRAUDS OF THE DISTRICT COURT

PLAINTIFF JUDSON WITHAM'S APPEAL TO THE US SUPREME COURT

Judson Witham

15215 Aiken Rd.

Wake Forest, NC 27587

801-602-9131

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I

Jurisdiction and Venue

This Case was originally filed and Docketed in the US District Court in Raleigh North

Carolina and was permitted to proceed IFP. The Case and Pleadings were improperly

4th

Circuit Court of Appeals in

treated and the Cause was Filed and Docketed in the

Richmond Virginia , the case was permitted to be filed and proceed IFP as well in the

Appellate Court.

The Courts of the United States. Under Article Three of the United States Constitution,

the judicial power of the United States is vested in the Supreme Court of the United

States and the inferior courts established by law.

The Jurisdiction of Last Court being an Appellate Court was 28 U.S. Code § 1291

The Jurisdiction of the District Court was permitted by 28 U.S. Code § 1332 Diversity

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of citizenship as well as 28 U.S. Code § 1367 Supplemental jurisdiction

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QUESTIONS PRESENTED

Can District Judges Summarily Dismiss Cases FRAUDULENTLY by concocting

Delusional and Fantastical FALSE Narratives and OUT OF THE THIN AIR STORIES upon

FALSE PRETENSES ?

Are the 35 Interstate Compacts that New York conducts sufficient DAILY OFFICIAL

BUSINESS with in North Carolina to constitute Minimum State Contacts in the

4th

Circuit of North Carolina to constitute New York Conducting large amounts of Official

Business in North Carolina ?

Is the State of New York IMMUNE from Property Damage and Takings Claims in

light of the United States Constitution Amendment 5?

2

f.

What are Minimum Factual Pleadings allowable per Federal Rule of Procedure 8 (a)

(2) the Notice Rules of Pleading in the matter of a PRO SE LITIGANT that has been

denied all Open Records Requests and All Records from New York State ? See

Rule 8 F

What are the Threshold Requirements for Pro Se Pleadings under Rule 9 wherein

the State of New York has Stone Walled and Blocked all Open Records and

Information Requests by a Pro Se Litigant.

Are the Civil and Criminal Provisions of New York State Penal Laws for Vandalism

and Property Damage for DESTRUCTION of The Witham Family Marina Docks and

Docks and Boat Houses, Shoreline and Sea Wall / Bulk Heads on Lake George NY

Applicable to Taking of Property in Violation of US Const. Amendment 5 ? See NY

PENAL LAW Sections 145.05 and 145.10

What are the Standards for Rocket Docket, Trash Can Treatment of Pro Se Pleadings

wherein FANTASTICAL STORIES and DELUSIONAL Narratives are Fabricated by

District and Appellate Courts to COURT STRIP and Deny Due Process and Equal

Protection of the Constitution and Laws to Pro Se Plaintiff's ?

List of Parties

NOTE.

This Case was NEVER Properly Served on the listed Defendants RATHER it was

preempted by a SUMMARY, SUMMARY Judgement whereby the SCREENING PROCESS was

fraudulently employed to Rocket Docket and Trash Can the Case. The District Court NEVER

SERVED the Defendants on account of the FRAUD employed by Judge Boyle to dismiss the

action

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New York State Department of Conservation / NYS Conservation Commission

The State of New York as Operators and Owners of Dam "A" Lake George NY

The State of New York DBA The Lake George Park Commission

NYS Governor Andrew Cuomo

NYS DEC Commissioner Basil Seggos and Unknown Conservation Commission Agents

Jane and John Does 1-10 (Bivens Action)

United States District Judge Terrence W. Boyle

The

4th

4th

District Judge

Circuit Court of Appeals Judges Niemeyer, Motz and King

IV.

Statement of the Case

This Case involves the Intentional and Reckless destruction Lake Wide State and

Private Property including Shoreline, Islands, Boat Houses, Sea Walls / Bulkheads and Docks

as well as the Witham Family Marina on Lake George, NY. The Witham Marina being a Full

service 250 Berth Marina on 600 Acres at Lake George New York. SAID LAKE and Water

and Winter Ice and Snow Levels has been before the Federal Courts previously when the

STATE of Vermont sued the STATE of New York over vast dumping and flushing of TOXIC

Mill Wastes and SEWAGE into Lake Champlain at Fort Ticonderoga (See LaChute River) In

the Case Styled. Many New York State Criminal Prosecutions and Civil Actions have for

many decades been pursued by NYS District Attorneys, County Attorneys and State

Attorney Generals for New York State. Succinctly stated the Officials of New York State's

Law Enforcement Authorities, Several State Governors and the NYS Legislature have

undertaken Prosecutions and Civil Litigation regarding these matters ON MANY OCCASSIONS

and over an EXTENDED Period of DECADES.

1. The Factual Basis of the described Property Damages and Financial Damages and the

History of the VAST Property Destruction is a matter of the Public and Judicial

Records of the State of New York and the United States Congress and United States

Agencies and Courts

4

State of VERMONT v. State of NEW YORK et al.

417 U.S. 270 (94 S.Ct. 2248,41 L.Ed.2d 61

No. 50, Orig.

Decided: June 3, 1974

These Matters Also Appear HERE

United States Supreme Court: Original Jurisdiction Cases and Materials

https://books.google.com/books?id=vCvCDAAAQBAJ&IpgPP1&dgisbn%3A1442272775&Pg

=PP1#v=onepage&g&f=false

Gordon L. Weil 2016 Law

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VERMONT v. NEW YORK ET AL. 417 U.S. 270, 94 S.Ct. 2248,41 L.Ed.2d 61 No. 50,

Orig. Decided June 3, 1974 ON BILL OF COMPLAINT Syllabus

On a bill of complaint by Vermont charging New York and paper company with polluting

Lake Champlain, impeding navigation, and creating a public nuisance, this Court will

2. This Case also involves New York State's Marathon Litigation against the Operators

of the Wholly Inadequate Release Spillways and Dam Operations which control the

WINTER TIME Lake Levels on Lake George. Said Cases reveal VAST Property

Damage and Destruction of Docks, Boat Houses, Islands, Shoreline and Sea Walls

caused by INTENTIONAL Lake Level Manipulations during Winter and Spring LAKE

ICE COVER by those responsible for and Who are obligated to Control the Lake Ice

Sheet Levels

See

....

New York Supreme Court Record on Appeal

https://books.google.com/books?id=D8V-7yFX-yB

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PEOPLE v. SYSTEM PROPERTIES, 281 App. Div. 433 (N.Y. App. Div

https://casetext.com/case/people-v-system-properties

This action was originally brought by the People of the State of New York for a

judgment decreeing and declaring that the State was the owner of the bed of Lake

George and of the Ticonderoga River, the outlet of Lake George, and that the State

had the paramount right to control the use of the waters of Lake George and the

PEOPLE v. SYSTEM PROPERTIES, 2 N.Y.2d 330 (N.Y. 1957) I Casetext

https://casetext.com/case/people-v-system-properties-3

This action was brought by the State of New York in 1942 against System Properties,

Inc., then the operator of the dam. Seven individual owners, called herein the

"Langmuir" group of intervenors, of homes on Lake George intervened on plaintiff's

side. Other intervenors were three counties, seven interested townships, the

The Long History of WINTER TIME LAKE ICE Has a Long and Factual Record in the

Courts of the United States. The VAST Winter Time Ice Fluctuations being under the

Control of New York State are the SOLE Destructive Force causing repetitive

destruction of the Witham Family Marina.

When this case was initially field Judge Terrance Boyle IMMEDIATELY characterized

the Averments of Witham's Pleadings as FANTASTICAL and DELUSIONAL ahead of

even a SCITILLA of Discovery or a FACT Findings on the ENORMOUS BODY of Proof

and Evidence that in REALITY Exists. Judge Terrence William Boyle SUMMARILY

DISPOSED OF AND CLOSED THE CASE

Fraudulently and IMPROPERLY

I

Judge Terrence William Boyle subjected the Witham Pleadings to Inferior review

even making DISPARAGING and FRAUDULENT assertions regarding the VERACITY of

the Allegations. Using SUMMARY DISMISSAL without allowing ANY DISCOVERY the

Presentation of Any Evidence or Testimony

....

Judge Boyle's Court simply TRASH

CANNED and WASTE BASKETTED the Case using ROCKET DOCKET PRACTICES. Said

Rocket Docket Treatment COURT STRIPPED Witham of all Due Process and All Equal

Protection.

"a Pro Se complaint should not be dismissed for failure to state a claim unless it

appears beyond doubt that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519,520 (1972).

This case clearly reveals that the Case was dismissed before the Complaint was

served upon New York State

....

The Case was DISMISSED Summarily without a

SCINTILLA of consideration of Evidence, Facts, Discovery

....

Judge Boyle simply

ROCKET DOCKECTED and sua sponte or suo motu "on Judge Boyle's own motion"

dismissed the case AND IT WAS NEVER SERVED on New York State.

A case should not be dismissed unless it can be said "with assurance that under the

allegations of the pro se complaint, which [is held] to less stringent standards than formal

pleadings drafted by lawyers, it appears beyond doubt that the plaintiff can prove no set of

facts in support of [her] claim which would entitle [her] to relief." McDowell v. Delaware

State Police, 88 F.3d 188, 189 (3d Cir. 1996) (quoting Haines v. Kerner, 404 U.S. 519, 520

(1972).

This case involves many years of the MASSIVE GARGANTUAN 242 Square Mile ICE

SHEET on Lake George being wildly manipulated causing the TOTAL Destruction of

the Witham Business causing the 600 Acre Marina to experience CATASTROPHIC

Financial Damages resulting ultimately in NEW YORK STATE and Others to Take from

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the Witham Family Their Home and Business on Lake George. COPIOUS AMOUNTS

of Historical Records, Evidence and Material Witnesses STATE and FEDERAL Court

Records and State and Federal Engineering and Environmental Investigations and

Main Stream Media Reporting PROVES the REALITY of the Facts as Cited by

Witham to the District Court and the Appellate Court.

10. "The District Court referred to CHUNKS OF ICE Being Dumped into Lake Champlain

Clearly revealing the Pleadings were NOT Properly reviewed or Liberally Construed.

Judge Terrence William Boyle, His Clerks and Staff simply Made Up a PLAUSIBLE

and False Narrative to SUMMARILLY DISMISS THE CASE in the so called

SCREENING PROCESS"

VI.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

/

Federal Rule Civil Procedure 8 and 9

US Constitution Amendment 5 and

14th

Amendment (Due Process Equal

Protection )

The COMMON LAW STANDARDS for the Proper Treatment of Pro Se

Constitutional and Human Rights Cases

FRAUD UPON AND BY COURTS

Fraud on the court occurs when the judicial machinery itself has been tainted, such as

when a Judge or an attorney, who is an officer of the court, is involved in the

perpetration of a fraud or makes material misrepresentations by or to the court. Fraud

upon the court makes void the orders and actions of said Courts.

H.

S. The Proper and Lawful Treatment of Pro Se Pleadings before the Federal Courts See

Illiberal Construction of Pro Se Pleadings Semantic Scholar

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https://pdfs.semanticscholar.org/18a9/716ebb00dd1c36cf1d7bbbf8575fe383b91f.pdf

by Rl( SCHNEIDER

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See generally Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules.

CASTRO V. UNITED STATES (02-6683) 540 U.S. 375 (2003) 290 F.3d 1270

6. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) the Supreme Court announced

the new plausibility standard by which pleadings are to be judged: a complaint must

allege "enough facts to state a claim to relief that is plausible on its face. A facially

plausible complaint is one that "raise[s] a reasonable expectation that

discovery will reveal evidence" of the alleged wrongdoing.

Also see

The Pro Se Litigant's Right to Notification of the Requirements of the Summary Judgment

Rule

http://www.ir.lawnet.fordham.edu/cgi/viewcontent.cgi?artic1e2754&contextflr

by JM McLaughlin 1987 Cited by 39 Related articles

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See United States v. Plattner, 330 F.2d 271,. 273-74 (2d Cir. 1964). For an extensive

discussion of the historical origins of the right of self-representation, see

...

Litigant:

An Inside View of the Pro Se Actions in the Federal Courts, 47 N.Y.U. I. Rev. .... courts'

liberal treatment of pro se pleadings is consistent with the judge's.

VII.

Constitutional Provisions

Laws and Statutes Involved

1.

The Private Property Protection Provisions of the US Constitutional Takings Clause

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Penn Central v. New York City (1978) SUPREME COURT OF THE UNITED STATES

438 U.S. 104 June 26, 1978, Decided

Dolan v. City of Tigard (1994) 512 U.S. 374 (1994) Decided June 24, 1994

Lucas v. South Carolina Coastal Com'n. (1992) 505 U.S. 1003 (1992) U.S.

SUPREME COURT Decided June 29, 1992

Tahoe Preservation Council v Tahoe Regional Planning Agency (2002)

Decided April 23, 2002

Kelo v City of New London (2005) Certiorari to the Supreme Court of Connecticut

Decided June 23, 2005

2. The Instant Case is an Inverse condemnation case and a claim brought against the

government on the State of New York in which Withams, owners of a 600 Acre

Marina on Lake George NY seeks compensation for massive DAMAGES to his

property under the Fifth Amendment. New York State prohibits the

uncompensated taking or damaging, physical damage to property which is

included in this definition. The term "inverse" is used, because usually

condemnations are brought by the government. In the inverse condemnation

context, it is the property owner who sues the government, alleging a taking (or

damaging) of property without just compensation.

See

San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 638 n.2 (1981)

(Justice Brennan dissenting);

United States v. Clarke, 445 U.S. 253, 257 (1980);

Agins v. City of Tiburon, 447 U.S. 255, 258 n.2 (1980).

The Intentional and Reckless Damaging and Taking of Property being the Primary

Modis Operandi, Brothers V. US, C.A. Oregon 594 Fd 2nd 740, 741,

It is not essential that Seizure or Appropriation occur only that material or actual

interference with Property Rights constitutes the taking.

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Board of Com'rs Lake County v. Mentor Lagoons Inc., Corn. P1., 6 Oh. 216

N.E. 2d 643, 646

Aris Gloves Inc. v. U.S., Ct. Cl. 420 I'd 2nd 1386,

Penn Central Transportation Company v. New York City, 438 U.S. 104 (1978)

Lucas v. South Carolina Coastal Council, sos U.S. 1003 (1992)

City of Keller v Wilson, 168 S.W.3d 802, 808 (Tex. 2005).

3. New York Consolidated Laws, Penal Law PEN § 145.00 Reckless and Intentional

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Property Destruction is Civilly and Criminally Actionable in New York

a. NY Penal Law section 145.10 are Felonies.

4. The civil action for RICO is defined in 18 U.S.C.A. § 1964 (c): "Any person injured in

his business or property by reason of a violation of section 1962 of this chapter may

recover threefold the damages he sustains and the cost of the suit, including a

reasonable attorney's fee

5. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971

6. The federal Clean Water Act, 33 USC § 1251, et seq

7. "Minimum State Contacts" in the forum State, the Jurisdictional minimum per

the 14th Amendment is proper.

Ellicott Mach, 995 F. 2d at 477

International Shoe. Co vs. Washington 366 U.S. 310, 316

8.

The "Minimum contacts Rule " with the forum state requirement includes

OFFICIAL BUSINESS carried out through INTERSTATE COMPACTS and

AGREEMENTS and is generally fulfilled if there are "minimum contacts" with the

forum state

a. International Shoe v. Washington, 326 US 310

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Shaffer v. Heitner, 433 U.S. 186

Traditional forms of establishing minimum contacts include: purposefully selling

goods in the state

World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286 maintaining a

physical office or store in the state, entering into a contract with someone in

the state

Burger King v. Rudzewicz, 471 U.S. 462 or committing a tortious act within the

state.

VIII.

Proper Lawful Treatment of Prose Pleadings

Haines v. Kerner, 404 U.S. 520 (1971)

Elmore v. McCammon (1986) 640 F. Supp. 905

Jenkins v. McKeithen, 395 U.S. 411, 421 (1959)

Picking v. Pennsylvania R. Co., 151 Fed 2nd 240

Pucket v. Cox, 456 Fed 2nd 233

Brotherhood of Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1; v.

Wainwright, 372 U.S. 335;

Argersinger v. Hamlin, Sheriff 407 U.S. 425

Conley v. Gibson. 355 U.S. 41 at 48 (1957)

"Following the simple guide of rule 8(f) that all pleadings shall be so construed as to do

substantial justice"... "The federal rules reject the approach that pleading is a game of skill in

which one misstep by counsel may be decisive to the outcome and accept the principle that

the purpose of pleading is to facilitate a proper decision on the merits." The court also cited

Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial justice.

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Davis v. Wechler 263 U.S. 22, 24

Stromberb v. California, 283 U.S. 359

NAACP v. Alabama, 375 U.S. 449

Elmore v. McCammon (1986) 640 F. Supp. 905

"...

the right to file a lawsuit pro se is one of the most important rights under the constitution

and laws."

Pro se pleadings are to be considered without regard to technicality; pro se litigants'

pleadings are not to be held to the same high standards of perfection as lawyers.

Sims v. Aherns, 271 SW 720 (1925)

Platsky v. CIA, 953 F.2d 25, 26 28 (2nd Cir. 1991)

"Court errs if court dismisses pro se litigant without instruction of how pleadings are deficient

and how to repair pleadings."

Appendix ... The Lower Court's Orders are Appended to the Pleadings

IX.

Notice Pleading Standards Rule 8 and FRCP 9

Rule 8. General Rules of Pleading .... Notice Pleading and the Rule 9b which only

requires slightly more notice than would be forthcoming under Rule 8

See the Supreme Court's endorsement of notice pleading in Conley v. Gibson 355 U.S. 41, 4748(1957)

FRCP Rule 9 Slightly More Stringent Pleading Requirements than FRCP 8 Notice

Pleading https://www.1215.org/lawnotes/lawnotes/rule8frcp.pdf

a. DIOGUARDI v. DURNING, 139 F.2d 774 (2d Cir. 1944)

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See WRIGHT, supra note 1, at 474-75 (stating and rejecting the strict pleading argument);

b. JACK H. FRIEDENTHAL, MARY KAY KANE, & ARTHUR R. MILLER, CIVIL PROCEDURE § 5.8, at

261 (3d ed. 1999) (describing criticism of Dioguardi and its role as a focal point for

opposition to the new rules).

The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts

upon which he bases his claim. To the contrary, all the Rules require is "a short and plain

statement of the claim" that will give the defendant fair notice of what the plaintiff's claim is

and the grounds upon which it rests. Thus, "simplified 'notice pleading," made possible by

the liberal discovery and pretrial procedures of the Rules, controls. While the Court-created

label "notice pleading" has been criticized, its essential components are plain. The Rule

8(a)(2) mandate that a federal pleading be "a short and plain statement of a claim showing

that the pleader is entitled to relief" requires that a claim be stated with brevity, conciseness,

and clarity. The Rule was designed to avoid technicalities. FRCP Rule 8 and 9 Apply

9. 2012 US Code Title 33 Navigation and Navigable Waters Chapter 27 OCEAN

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DUMPING (§§ 1401 1445)

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X.

REASONS FOR GRANTING THE PETITION

1. The Record of the Case reveals Judge Boyle simply TRASH CANNED and WASTE

BASKETTED the Case by Summarily dismissing on Sophisms and Prevarications

and a FALSE NARRATIVE and FRAUD. The Screening Process shows Judge Boyle's

assertions that New York State does NOT have the requisite In State Contacts is

ABSURD, He simply Ignored the Vast Official Business New York State

Conducts in the

4th Circuit EVERY DAY. New York conducts Interstate Official

Business by reason of Participation in as many as 25 (Twenty Five Interstate

14

ra

Compacts) and continually engages in Solicitations and Offerings of State

Services, Business, Commerce and Industry within the

4th

Circuit DAILY.

2. The Record Reveals the Standards of Review of Pro Se Pleadings were IGNORED.

This case was Summarily Dismissed, the Defendants Never Served, Amendment

of Pleadings never instructed or suggested, and New York State's Immense

Official Business Activities in the

4th

Circuit IGNORED.

3. The Record Reveals from the VERY START of the Case The District Court NEVER

SERVED the Action on New York State and Simply disposed of the Pleadings

Summarily. Witham's Constitutional Due Process, Property and Human Rights

were STIPPED and DENIED by Judge Boyle's CAVALER and FAKSE assertions that

Witham's pleadings are FANTASTICAL and DELUSIONAL. Said Prevarications,

Sophisms and Frauds simply employed to CONCOCT a Record to make it appear

the Pleadings were Wholly Insufficient.

THE VAST PUBLIC RECORD OF THE POISONING OF Lake George, LaChute River, Lake

Champlain, Richelieu River, The Saint Lawrence River and the Atlantic Ocean are

COPIOUS and ABUNDANTLY AVAILABLE.

The Vast and Immense Property Destruction set forth throughout Witham's

Pleadings is On A Gargantuan Scale REALITY and very well Chronicled in the Records

of New York State Law Enforcement and Judicial History. There are MILLIONS of

Material Witnesses and Relevant Evidence that reveals Witham's Complaint IS IN NO

WAY SHAPE OR FORM

....

Delusional or Fantastical.

4. The District Court NEVER advised Witham to Amend His Petition or in any way

nor allowed Witham to Amend the Pleadings ......The

4th

Circuit Court of Appeals

RUBBER STAMPED and as well THREW THE CASE IN THE TRASH BASKET in

violation of Fair and Honest Due Process and Equal Protection Standards for Pro

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Se Complaints See

https://pdfs.semanticscholar.org/18a9/716ebb00dd1c36cf1d7bbbf8575fe383b91f.

pdf

S. New York State Recklessly and Intentionally engaged in Vast Poisoning of the

Interstate Waters of Lake Champlain a New York and Vermont NAVIGABLE

WATERWAY of the United States. While making vast profits from Industrial

Processing of New York's Forests and Flushing the Sewers of New York State into

Lake Champlain using the DAM "A" AKA Dam #230 at the North End of Lake

George, New York State immensely engaged in the DESTRUCTION of the Lake

Champlain Fisheries which is an INTERSTATE COMMERCE as defined in 18

U.S.C.A. § 1964.

• 6. The Defendants derived immense Economic and Pecuniary Gains ( Profits and Tax

Revenues) directly from the POISONING of Lake Champlain with Billions of

Gallons of Contaminated Water of the Solids Sewage, Chemicals and Industrial

Wastes which were FLUSHED using the Waters of Lake George New York in an

identical fashion to FLUSHING A TOILET. The MEGA Flushing of These Toxins and

Wastes directly DESTROYED the Boat Houses and Docks, Shoreline and Islands

that New York State's OWN AUTHORITIES have Prosecuted and Litigated in New

York's and United State's Courts for DECADES.

7. The Direct and Proximate Cause of the Property Destruction, Poisoning and

Contamination is the Direct Result of the State of New York INTENTIONALLY

and KNOWINGLY Promoting and Advancing the Processing of Vast Billions of

Cords of Timber from New York State Owned Forests. New York State

immensely profited from the Property Destruction and TOXIC WASTES

DUMPINGS into the Navigable Waters of the United States as well as the

Interstate Commerce, the Intestate Fisheries in Lake Champlain.

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I

A

The Proximate and Direct Cause of the Witham Marina Destruction and the

ONGOING Flushing of Sewage Laden and Chemical Laden Water from Lake

George NY is ONGOING and a Daily and Continuing Nuisance which Is Ongoing

and A Continuing Series of Property and Fisheries Destruction.

SEE The Historical And Legal History of the POISONING OF LAKE

CHAMPLAIN at

https://www.google.com/search?ei=ngioWgOhG4Lu QbxnL6lCg&g=The+Poisonio

ng+of+Lake+Champlain+Poi son ing+of+Lake+George&og=The+ Poison iong+of+Lake

+Champlain+Poisoning+of+Lake+George&gs l=psyab.12 ... 0.0.0.6907.0.O.0.0.0.0.O.O..O.O .... 0 ... 1..64.psy-ab..0.0.0 .... O.JcIWvH9IoLU

The Catastrophic and repeated Destruction and Damages to the Witham Marina

are directly caused by the State's MILL POND Operations and Wastes Flushings

using Lake George as a Giant Toilet Flusher. If not for the GARGANTUAN and

Continuing Flushing of Vast Amounts of New York State Sewage and Mill Wastes

and Chemicals from the LaChute River, and the WHOLLY INADEQUATE DESIGN and

OPERATIONS of Dam # 230 AKA Dam "A" on Lake George

....

The Witham

Family Marina and vast amounts of OTHER STATE AND PRIVATE PROPERTY

would have been spared the Widespread and Immense Damages NEW YORK's

OWN AUTHORITIES have many times complained of OFFICIALLY.

THE ENTIRE RECORD OF THE CASE IS AVAILABLE TO THE US SUPREME COURT

All Proceedings and Records are herein included by REFERENCE "In Haec Verba"

The Pacer Records for Witham's Pleadings to the District Court and the Appellate

Court reveal the ENTIRE CASE HISTORY. Said Pleadings are HEREIN by Reference are

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included in this Appellate Petition by Inclusion by Reference to the Official Pacer History of

the Case Below "In Haec Verba" By reference to said PACER and COURT RECORDS

UM

CONCLUSION

16 US Const Amendment 5 reveals that New York State and it's Agencies and

Employees, Representatives are NOT Immune from Damage Suits stemming from

DAMAGING or Taking of Property without just compensation. The Intentional and

Reckless Damaging and Taking of Property being the Primary Modis Operandi, Brothers

V. US, C.A. Oregon 594 I'd 2nd 740, 741, It is not essential that Seizure or Appropriation

occur only that material or actual interference with Property Rights constitutes the

taking. Board of Com'rs Lake County v. Mentor Lagoons Inc., Corn. P1., 6 Oh. 216 N.E.

2d 643, 646, Aris Gloves Inc. v. U.S., Ct. Cl. 420 Fd 2nd 1386, Penn Central

Transportation Company v. New York City, 438 U.S. 104 (1978), Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992)

Intentional Property Damage under NY Penal Law section 145.05, NY Penal Law

section 145.10 are Felonies.

Said Destruction of Property is a Taking by Inverse condemnation is a term which

describes a claim brought against the government in which a property owner seeks

compensation for a 'taking' of his property under the Fifth Amendment. In states that

prohibit uncompensated taking or damaging, physical damage to property is included in

this definition. The term "inverse" is used, because usually condemnations are brought

by the government. In the inverse condemnation context, it is the property owner who

sues the government, alleging a taking (or damaging) of property without just

compensation. See San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621,638

18

n.2 (1981) (Justice Brennan dissenting); United States v. Clarke, 445 U.S. 253, 257 (1980);

Agins v. City of Tiburon, 447 U.S. 255, 258 n.2 (1980). SEE ......Those seeking recovery

for a taking must prove the government "intentionally took or damaged their property

for public use, or was substantially certain that would be the result." City of Keller v.

Wilson, 168 S.W.3d 802, 808 (Tex. 2005).

4. Sovereign immunity does not shield the government from liability for

compensation under the takings clause. Gen. Servs. Comm'n v. Little-Tex

Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001)

S. New York State conducts large amounts of OFFICIAL BUSINESS in the State of North

Carolina. The "Minimum contacts Rule" with the forum state requirement includes

OFFICIAL BUSINESS carried out through INTERSTATE COMPACTS and AGREEMENTS and

is generally fulfilled if there are "minimum contacts" with the forum state International

Shoe v. Washingtgj., 326 US 310, Shaffer v. Heitner, 433 U.S. 186). Traditional forms

of establishing minimum contacts include: purposefully selling goods in the state

World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, maintaining a physical office

or store in the state, entering into a contract with someone in the state Burger King v.

Rudzewicz, 471 U.S. 462, or committing a tortious act within the state.

New York's and North Carolina's DAILY LEGAL DEALINGS and Official Business in NC

1. New York State Conducts OFFICIAL BUSINESS in North Carolina and Virginia on a

Very Large Scale Blacks Law Dictionary 6th Edition page 995 clearly states that the

Minimum Contacts Rule is applicable to CIVILLIAN DEFENDANTS or CIVILLIAN

CORPORATIONS

....

The State of New York transacts business in North Carolina with

19

lip

the State's Municipalities, Courts and Federal Government on a continual ongoing

basis.

When a Defendant Purposes establishes" Minimum State Contacts" in the forum

State, the Jurisdictional minimum per the 14th Amendment is proper. Ellicott Mach

995 F. 2d at 477 and see also International Shoe. Co vs. Washington 366 U.S. 310,

316. New York State engages in Tourism Promotions, Property Seizures and Child

Support Enforcement, Prisoner Adjudications and Interstate Registration, Drivers

License and many other Legal and State Business per the Interstate Compacts it shares

with North Carolina.

The continual New York State Business being Conducted in North Carolina and with

the Federal Agencies and Courts etc of North Carolina involve a wide range of Official

Acts and Legal Matters and Business of all kinds. These Minimum State Contacts are

well documented and far exceed said MINIMUM ACTIVITIES by New York State as a

result.

L14 1111

NEW YORK AND NORTH CAROLINA CONDUCT BUSINESS DAILY ACROSS STATE LINES.

NY COMPACTS

New York belongs to 42 interstate compacts WITH North Carolina

Name: Issue

Formation Date

Agreement on Detainers Corrections 1970

Agreement on Qualifications of Education Personnel Education 1968

Atlantic State Marine Fisheries Compact Fisheries; Natural resource management 1942

Pic

Buffalo and Fort Erie Bridge Compact Infrastructure 1994

Compact on Mental Health Public health 1956

Delaware River Basin Compact Natural resource management 1961

Driver License Agreement Licensure 2002

Driver License Compact Licensure 1958

Emergency Management Assistance Compact Emergency management 1996

Great Lakes-St. Lawrence River Basin Water Resources Compact Natural resources

management 2008

Great Lakes Basin Compact Natural resource management 1955

Interpleader Compact Property 1955

Interstate Compact for Adult Offender Supervision Corrections 1998

Interstate Compact for Education Education 1965

Interstate Compact for Juveniles Corrections 1955

Compact for Adoption and Medical Assistance Children 1986

Interstate Compact on Licenses of Participants in Horse Racing with Pan-Mutual Wagering

Licensure 2000

Interstate Compact on Placement of Children Children 1963

Interstate Compact to Conserve Oil and Gas Natural resource management 1935

Interstate Corrections Compact Corrections 1959

Interstate High Speed Intercity Rail Passenger Network Compact

Transportation; Infrastructure 1981

21

Interstate Library Compact Education 1956

Interstate Mining Compact Natural resource management 1970

Interstate Pest Control Compact Industry regulation 1965

Interstate Rail Passenger Network Compact Transportation 1980

Interstate Wildlife Violator Compact Law enforcement 1989

Interstate compact to Conserve Oil and Gas Natural resource management 1935

New England Interstate Water Pollution Control Compact Water pollution control 1947

New England State Police Compact Law enforcement 1969

New York-New Jersey Port Authority Compact of 1921

Transportation 1921

Nonresident Violator Compact Licensure 1977

Northeastern Forest Fire Protection Compact

Fire protection 1949

Ogdensburg Bridge and Port Authority Compact Transportation 1952

Ohio River Valley Water Sanitation Compact Water resources 1948

Palisades Interstate Park Compact Natural resources management 1937

Railroad Passenger Transportation Compact Transportation 1969

Susquehanna River Basin Compact Natural resource management; Flood control 1970

The NASDTEC Interstate Contract Licensure; Education 1928

Tri -State Sanitation Compact Waste management; Water pollution 1935

22

Uniform Child Custody Jurisdiction and Enforcement Act Children 1997

Vehicle Equipment Safety Compact Industry regulation 1958

Waterfront Commission Compact Law enforcement 1953

NORTH CAROLINA's INTERSTATE COMPACT DAILY BUSINESS WITH NEW YORK STATE

North Carolina belongs to 35 interstate compacts.

Name: Issue

Formation Date

Agreement on Detainers Corrections 1970

Agreement on Qualifications of Education Personnel Education 1968

Atlantic State Marine Fisheries Compact Fisheries; Natural resource management 1942

Compact on Mental Health Public health 1956

Driver License Agreement Licensure 2002

Driver License Compact Licensure 1958

Emergency Management Assistance Compact

Emergency management 1996

Interstate Compact for Adult Offender Supervision Corrections 1998

Interstate Compact for Education Education 1965

Interstate Compact for Juveniles Corrections 1955

Compact for Adoption and Medical Assistance Children 1986

23

Interstate Compact on Educational Opportunity for Military Children

Education 2008

Interstate Compact on Placement of Children Children 1963

Interstate Corrections Compact Corrections 1959

Interstate Insurance Product Regulation Compact Industry regulation 2006

Interstate Library Compact Education 1956

Interstate Mining Compact Natural resource management 1970

Interstate Pest Control Compact Industry regulation 1965

Multi-State Reciprocity Agreement Licensure 1962

Multistate Lottery Agreement Lottery 1987

National Crime Prevention and Privacy Compact Law enforcement 1999

Nonresident Violator Compact Licensure 1977

Nurse Licensure Compact Licensure 2000

Southeast Interstate Low-Level Radioactive Waste Compact Waste 1982

Southeastern Forest Fire Protection Compact Forest fire protection 1954

Southern Dairy Compact Agriculture; Industry regulation 1997

Southern Growth Policies Agreement Economic development 1973

Southern Regional Education Compact Education 1948

Southern States Energy Compact Natural resource management 1962

The NASDTEC Interstate Contract Licensure; Education 1928

24

I

I

IV

Uniform Child Custody Jurisdiction and Enforcement Act Children 1997

Uniform Unclaimed Property Act Property 1995

Vehicle Equipment Safety Compact Industry regulation 1958

Virginia-North Carolina Boundary Agreement of 1791

Boundaries 1791

Virginia-North Carolina Boundary Agreement of 1970

Boundaries 1970

XIII.

Proper Review of Pro Se Pleadings

Notice Pleading Standards Rule 8

Rule 8. General Rules of Pleading

....

Notice Pleading and the Rule 9b which only

requires slightly more notice than would be forthcoming under Rule 8

See the Supreme Court's endorsement of notice pleading in Conley v. Gibson 355 U.S. 41,

47-48(1957)

FRCP Rule 9 Slightly More Stringent Pleading Requirements than FRCP 8 Notice

Pleading See WRIGHT, supra note 1, at 474-75 (stating and rejecting the strict pleading

argument); JACK H. FRIEDENTHAL, MARY KAY KANE, & ARTHUR R. MILLER, CIVIL

PROCEDURE § 5.8, at 261 (3d ed. 1999) (describing criticism of Dioguardi and its role as

a focal point for opposition to the new rules).

"a complaint should not be dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his claim which would entitle

him to relief."

25

[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the

facts upon which he bases his claim. To the contrary, all the Rules require is "a short

and plain statement of the claim" that will give the defendant fair notice of what the

plaintiffs claim is and the grounds upon which it rests.

Thus, "simplified 'notice pleading," made possible by the liberal discovery and pretrial

procedures of the Rules, controls.

Rule 8(a)(2) mandate that a federal pleading be "a short and plain statement of a claim

showing that the pleader is entitled to relief" requires that a claim be stated with

brevity, conciseness,and clarity. The Rule was designed to avoid technicalities.

Pro Se Complaints are NOT Subject to the Strict and Heightened Pleading Requirements of

Law Firms and Lawyers I Attorneys

Haines v. Kerner, 404 U.S. 520 (1971)

Elmore v. McCammon (1986) 640 F. Supp. 905

Jenkins v. McKeithen, 395 U.S. 411, 421 (1959)

Picking v. Pennsylvania R. Co., 151 Fed 2nd 240

Pucketv. Cox,4562nd 233

Brotherhood of Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1; v. Wainwright, 372

U.S. 335;

26

Argersinger v. Hamlin, Sheriff 407 U.S. 425

Conley v. Gibson, 355 U.S. 41 at 48 (1957)

"Following the simple guide of rule 8(f) that all pleadings shall be so construed as to do

substantial justice"... "The federal rules reject the approach that pleading is a game of skill

in which one misstep by counsel may be decisive to the outcome and accept the principle

that the purpose of pleading is to facilitate a proper decision on the merits." The court also

cited Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial

justice.

Davis v. Wechler, 263 U.S. 22, 24; Stromberb v. California, 283 U.S. 359; NAACP v. Alabama,

375 U.S. 449

Elmore v. McCammon (1986) 640 F. Supp. 905

"...

the right to file a lawsuit prose is one of the most important rights under the

constitution and laws."

Pro se pleadings are to be considered without regard to technicality; pro se litigants'

pleadings are not to be held to the same high standards of perfection as lawyers.

Sims v. Aherns, 271 SW 720 (1925)

Platsky v. CIA, 953 F.2d 25, 26 28 (2nd Cir. 1991), "Court errs if court dismisses pro se

litigant without instruction of how pleadings are deficient and how to repair pleadings."

27

xlv.

Relief Demanded

The Case Should Be Remanded for Full Discovery and Trial Proceedings as Judge

Boyle and the 4th Circuit Appellate Court simply RUBBER STAMPED Judge Boyle's

Indiscretions and allowed the FRAUDULENT DISMISSAL of this Case.

All Costs and Expenses associated with this Case and the Protracted Appellate

Processes.

Respectufully Submitted,

w6ylt

OA-U~

y

Judson Witham

15215 Aiken Road

Wake Forest, NC 27587

Ph 801-602-9131

28

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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