Three law firms have filed a class-action lawsuit on behalf of victims of last weekend's Fernley flood - the second such complaint in two days.

In their suit filed Friday in Lyon County District Court in Yerington, the Reno firms of Maddox & Associates, Leverty & Associates and Dunlap & Laxalt are seeking unspecified damages from the Truckee-Carson Irrigation District.

The complaint came a day after Reno lawyer Robert Hagar filed a
suit in Washoe County District Court on behalf of Judy Kroshus, whose home was among hundreds flooded after a storm-swollen irrigation canal ruptured Jan. 5. That suit, which also seeks class-action status, names the irrigation district, local governments and homebuilders as defendants.

Both lawsuits allege that the irrigation district did not properly maintain the canal and failed to minimize damage once the breach occurred in the fast-growing town 30 miles east of Reno.

Ernie Schank, TCID president, said the district reacted as quickly as possible after learning about the rupture, which was reported at about 4:20 a.m.

"This will be a complex case," lawyer Cal Dunlap told the Reno Gazette-Journal. "A lot of this is unknown territory. It's not immediately clear which laws apply."

Judges will have to certify the lawsuits as class actions, meaning that the suits represent all plaintiffs affected by the flood.

"It's unusual for two class actions to be certified," said Jeffrey Stempel, a law professor at the William S. Boyd School of Law at the University of Nevada, Las Vegas. "Filing first is always an advantage."

Stempel maintained the irrigation district generally would be liable for flood damage.

"If you've penned up an animal and the animal escaped and hurt
someone, it's usually your responsibility," he said. "In this case, the district penned up water and it got away from them."

The irrigation district operates the canal under a contract with the U.S. Bureau of Reclamation, which owns it.

Schank has said he realizes the district will be targeted by lawsuits, but was unsure whether it's liable for flood damage.

Betsy Rieke, area manager for the reclamation bureau, has said her agency thinks the district would be liable.

Rieke's agency continues to investigate the cause of the breach, which occurred after unusually heavy rain.

The court recently rejected a petition to appoint a trustee for the chimp, named Matthew Hiasl Pan, the Vienna-based Association Against Animal Factories said, and subsequently vowed to contact the European Court of Human Rights over the matter.

The court's decision follows in the footsteps of a similar ruling last fall. In September, a provincial judge in the city of Wiener Neustadt dismissed the case, ruling the Association Against Animal Factories has no legal standing to argue on the chimp's behalf.

The legal back and forth began in February, when the animal shelter where Pan and another chimp, Rosi, have lived for 25 years filed for bankruptcy protection.

Activists want to ensure the apes don't wind up homeless. Both were captured as babies in Sierra Leone in 1982 and smuggled to Austria for use in pharmaceutical experiments. Customs officers intercepted the shipment and turned the chimps over to the shelter.

Donors have offered to help with the upkeep costs, but under Austrian law, only a person can receive personal gifts.

Organizers could set up a foundation to collect cash for Pan, whose life expectancy in captivity is about 60 years. But they argue only personhood will ensure he isn't sold to someone outside Austria, where he's protected by strict animal cruelty laws.

The Supreme Court's long-running debate over the meaning of federalism took a new turn in a case the justices heard on Monday.

The question was, What happens when a state chooses to give criminal suspects more protection than the federal Constitution requires? If an arrest is improper under state law, does that mean that a search the police conduct in connection with the arrest is necessarily improper as well, even if the arrest met constitutional standards?

It is a question that has divided courts around the country, since it is not unusual for states to offer more vigorous protection for individual rights, either by their own constitutions or by statute, than that provided by the federal Constitution, as interpreted by the Supreme Court.

In this case, the police in Virginia arrested a man for driving with a suspended license. Under Virginia law, that offense is a misdemeanor that does not justify an arrest, except in unusual circumstances. Ordinarily, the police are limited to issuing a summons and a notice to appear in court.

Nonetheless, the police took the man, David L. Moore, into custody and in the search that followed found 16 grams of crack cocaine (about a half ounce) and $516 in cash. Mr. Moore was convicted of the drug offense and sentenced to five years in prison. The Virginia Supreme Court dismissed all charges, ruling that because the arrest was unlawful, so was the search.

Under the United States Supreme Court's precedents, searches that are "incident to a lawful arrest" are considered valid. During the argument on Monday, there was general agreement that the arrest itself was supported by probable cause, the standard under the Fourth Amendment of the Constitution. But given the state law, could the arrest be considered "lawful"?

Arguing for Virginia, which was appealing a decision by its state Supreme Court, Stephen B. McCullough said that "there was a violation of state law, but it wasn't a constitutional problem."

Mr. McCullough, a deputy state solicitor general, told the justices: "You have clear rules. Why would you trade them in for a morass? An arrest is constitutional if the officers have probable cause to believe a crime has been committed."

The rules were actually not quite so clear. Michael R. Dreeben, a deputy United States solicitor general who argued for the Justice Department in support of Virginia, told the justices that "admittedly, I think neither side is able to point to a case that squarely addressed and conclusively resolved the issue that's before the court."

Nonetheless, Mr. Dreeben maintained that it would be counterproductive to declare a search to be unconstitutional under these circumstances. "It's clear that imposing such a Fourth Amendment rule would do nothing other than discourage the states from providing additional restrictions as a matter of their own state's law that may serve to protect citizen privacy interests above the floor that this court has identified as required," he said.

Thomas C. Goldstein, arguing for the defendant, told the justices that under English common law, an illegal arrest was considered a form of trespass. "Because at common law you could not search someone pursuant to an arrest that was a trespass," he said, "the search itself is unconstitutional."

Chief Justice John G. Roberts Jr. was not persuaded. "It's not a lawful arrest," he said. "But that's a different question than whether or not it is an arrest. Our precedents say if it's an arrest, you can search ‘incident to the arrest.' "

"I disagree," Mr. Goldstein said. The court's precedents, he continued, indicated "that it has to be an arrest that is lawful under state law." The case came down to a simple concept that would be easy to administer, Mr. Goldstein said: "A rule that simply says to the police officer, ‘If you're allowed to arrest him, arrest him; if you're not, you're not, and you can't search him constitutionally.' "

Several justices pressed Mr. McCullough, Virginia's lawyer, on where, given a variety of dubious arrests, he would draw the line between valid and invalid searches. Justice Antonin Scalia asked whether, as a Supreme Court justice, he could search a neighbor's house on suspicion that marijuana was being grown there.

Yes, if the justice, as a federal employee acting on behalf of the government, had probable cause, Mr. McCullough said.

How about a "federally employed janitor?" Justice Scalia asked. "His neighbor is growing marijuana, and he's just as offended as a Supreme Court justice would be. Can he conduct a search?"

The lawyer replied, "I think if he's doing it on behalf of the state, the answer is yes."

Justice Scalia said, "Wow."

The case is Virginia v. Moore, No. 06-1082.

W. Bruce Shirk hasjoined the Washington, D.C. office of Sheppard Mullin Richter & Hampton LLPin the firm's Government Contracts practice group.  Shirk most recently led Powell Goldstein'sGovernment Contracts practice in Washington, D.C. 

Shirkfocuses his practice in the areas of government and construction contract lawand litigation, including cost accounting issues, defense and aerospacecontracting, Medicare and Medicaid contracting and related areas of lawincluding Medicare coordination of benefits and data sharing requirements.

"We are thrilledto welcome Bruce to the office," said Ed Schiff, managing partner of thefirm's Washington, D.C. office.  "Hisbackground is a perfect fit for our formidable Government Contracts group." 

"With close tofour decades of experience, Bruce brings with him a wealth of governmentcontracting knowledge and expertise in resolving a variety of disputes,"commented John Chierichella, a senior lawyer in the firm's D.C. GovernmentContracts practice.  "He will be agreat asset to our clients, as we continue to grow our robust practice."

CommentedShirk, "I look forward to working closely with John and the top-notchgroup of attorneys in the D.C. practice. I am greatly impressed by Sheppard Mullin and its reputation as a'go-to' firm for government contracting clients."

Shirk'slitigation experience includes the conduct of trials and appeals, including bidprotests and other complex litigation and related discovery proceedings, beforeBoards of Contract Appeals, various federal administrative tribunals and statecourts, Federal District courts, the U.S. Court of Federal Claims and the U.S.Court of Appeals for the Federal Circuit. He has represented both state and federalgovernment entities in litigation and has served as an arbitrator in a numberof construction arbitration proceedings under the rules of the AmericanArbitration Association.

Shirk'sexperience as a counselor includes review of contracts and provision of adviceto clients in both the public and private sectors in negotiation andadministration of contracts and grants; administrative prosecution of claimsagainst the government and defense of civil claims and criminal proceedingsbrought or instituted by the government, including claims arising under theMedicare statutes and regulations; defense of claims against public sectorentities; conduct of internal inquiries related to contract and regulatorycompliance, the latter including government claims for reimbursement ofMedicare payments.

Shirkhas conducted assessments of the practical impact of the law on the conduct ofbusiness with the government for clients, working closely with experts inrelated fields such as cost accounting and data analysis to formulaterecommendations for managers responsible for corporate decision-making andresolution of disputes; the establishment of compliance programs and advice andcounsel to clients regarding pricing and cost accounting issues. He has a special interest in the principlesand implementation of internal controls in the context of performance ofgovernment contracts and grants.

Shirkearned a J.D. from Harvard Law School in 1969 and received a B.A., cum laude,from Harvard College in 1962.  He servedin the U.S. Marine Corps on active duty as a lieutenant from 1962 to 1966.

About Sheppard Mullin Richter &Hampton LLP

Sheppard Mullin is a full service AmLaw 100 firm with more than 520 attorneysin 10 offices located throughout California and in New York, Washington, D.C.and Shanghai.  The firm's Californiaoffices are located in Los Angeles, San Francisco, Santa Barbara, Century City,Orange County, Del Mar Heights and San Diego. Founded in 1927 on the principle that the firmwould succeed only if its attorneys delivered prompt, high quality andcost-effective legal services, Sheppard Mullin provides legal counsel toU.S. and international clients.  Companies turn to Sheppard Mullin to handle a full range ofcorporate and technology matters, high stakes litigation and complex financialtransactions.  In the U.S., the firm'sclients include more than half of the Fortune 100 companies.  For more information, please visit www.sheppardmullin.com.

The Supreme Court did not explain its decision to leave the appeals court ruling undisturbed. Chief Justice John Roberts did not take part in the action.

The Abigail Alliance for Better Access to Developmental Drugs and the Washington Legal Foundation sued the FDA in 2003, seeking access for terminally ill patients to drugs that have undergone preliminary safety testing in as few as 20 people but have yet to be approved.

Abigail Alliance was created by Frank Burroughs, whose daughter, Abigail, was denied access to experimental cancer drugs and died in 2001. The drug she was seeking was approved years later.

The alliance said all it was asking for "is a right for terminally ill patients with no remaining treatment options to fight for their own lives."

The FDA said the appeals court was correct and in line with other rulings "that have rejected constitutionally based demands for access to unapproved investigational drugs."

The full U.S. Court of Appeals for the District of Columbia Circuit ruled against the alliance after a smaller panel of the same court held that terminally ill patients may not be denied access to potentially lifesaving drugs.

The court said patients can access experimental drugs in certain situations and suggested Congress could change the law to broaden such access.

EPA concluded that its existing standard for ozone exposure was inadequate to protect public health and the agency has estimated it will cost $9.6 billion a year in increased costs for polluters to comply with the new one.

When regulators relax a standard as opposed to imposing a tougher one, the Clean Air Act contains a section designed to ensure that air quality won't deteriorate in an area.

Safeguards, which regulators refer to as "anti-backsliding" requirements, call for control measures on polluters.

Industry objected in the case of the revised ozone standard when EPA concluded it could use the "anti-backsliding" requirements, even though the agency was imposing a tougher standard rather than easing one.

In raising the ozone standard, regulators had dropped a few of the requirements, but they were reimposed by the U.S. Court of Appeals for the District of Columbia Circuit, which ruled against industry.

The EPA is imposing requirements, regardless of whether they are needed to attain the new, more stringent ozone standard, industry lawyers wrote in asking the Supreme Court to take the case.

Petitioning the court were the National Petrochemical & Refiners Association, the American Chemistry Council, the American Petroleum Institute and the Utility Air Regulatory Group.

Separately, businesses in Baton Rouge, La., also asked the Supreme Court to hear their objection to EPA's position on the new ozone standard.

Lawyers for the businesses said that if Louisiana is forced to revise its pollution control plan, over 150 Baton Rouge businesses will be forced to pay $65 million to $100 million a year, threatening thousands of jobs in an economy still overwhelmed by the impact of hurricanes Katrina and Rita, local business groups told the court.