Weather Modification Law
in the USA

Copyright 2002 by Ronald B. Standler

Table of Contents

Introduction

• release of heat or smoke from industrial smokestacks;
• injection of water vapor and particulates from jet airplane engines into the dry stratosphere;
• release of heat and airborne particulates from cities;
• pollution from automobiles;
• global warming from release of CO₂ by burning wood, coal, oil, or natural gas; or
• removal of ozone by release of fluorocarbons into the atmosphere.

• potential plaintiffs (e.g., farmers, ranchers, and people who might be victims of a flood),
• meteorology students, and
• attorneys and law students working in either environmental law or water law,

1. Technology

• history of early (e.g., 1946-51) cloud seeding experiments, with emphasis on legal issues;
• some technical problems with cloud seeding experiments;
• a few excerpts from the official policy of the American Meteorological Society on cloud seeding technologies;
• environmental concerns and terse comments on the ethics of scientific experiments; and
• the need for more basic scientific research.

2. Governmental Licensing and Regulations

• weather is part of the natural environment that belongs to everyone.
• governments regulate the allocation of water from rivers to landowners, so it was natural for governments to also regulate attempts to enhance rainfall.
• some cloud seeders in the 1950s and 1960s were charlatans who exploited desperate farmers in a drought, which led to government programs to license cloud seeders, in order to protect the public.

1. ensure that commercial weather modification companies are competent (e.g., states often require cloud seeders to have earned at least a bachelor's degree in meteorology or a related field, plus have experience in weather modification); and
2. require companies have the resources to compensate those harmed by their weather modification (so-called "proof of financial responsibility"). In practice, such proof requires cloud seeders either to purchase liability insurance or to post a bond. Minimum amounts of insurance specified in old statutes are now woefully inadequate, because of inflation since the statute was written.

• Colorado
  
  
• North Dakota
  
  
• Oklahoma
  
  
• Texas
  
  
• Utah

3. Court Cases

1. Before the cloud seeding occurs, potential victims may apply to a court for an injunction prohibiting any future attempt at weather modification. Before an injunction can be issued, the plaintiff must be able to show an "irreparable harm" (i.e., destruction of something unique that can not be replaced) or "no adequate remedy at law" (i.e., money damages in either contract or tort litigation would not adequately compensate plaintiff).
2. After the allegedly modified weather causes damage to crops or buildings, the victims can sue the people who allegedly caused the modification in weather.

New York 1950

Apart from the legal defects in plaintiffs' suit (since they clearly have no vested property rights in the clouds or moisture therein), the factual situation fails to demonstrate any possible irreparable injury to plaintiffs.

97 N.Y.S.2d at 239.

The final paragraph of the opinion says:

Contrasted with plaintiff's unfounded speculations as to possible damage, the affidavits of the experts for the City show that the experiments have reached a stage where it might reasonably be expected that rainfall may be both induced and controlled. This court must balance the conflicting interests between a remote possibility of inconvenience to plaintiffs' resort and its guests with the problem of maintaining and supplying the inhabitants of the City of New York and surrounding areas, with a population of about 10 million inhabitants, with an adequate supply of pure and wholesome water. The relief which plaintiffs ask is opposed to the general welfare and public good; and the dangers which plaintiffs apprehend are purely speculative. This court will not protect a possible private injury at the expense of a positive public advantage. Since plaintiffs have shown neither a factual nor legal basis for the drastic relief that they seek, the motion for a temporary injunction is denied.

97 N.Y.S.2d at 240.

The court's language concerning vested property rights in clouds and moisture was dicta, unsupported by legal authority or reason and was not favorably received. See 34 Marquette Law Review 262.

Pennsylvania Natural Weather Assn. v. Blue Ridge Weather Modification Assn., 44 Pa. D. & C. at 757, 1968 WL 6708 at *6 (Pa.Com.Pl. 1968).

... the court offers no substantial reason for its parenthetical statement that a property owner has "no vested property rights in the clouds or the moisture therein." Indeed it is not at all clear just what the court means by its statement, for while it is true that a landowner has no vested property right in the moisture or clouds while over another man's land, it does not necessarily follow that he has no rights whatsoever to the natural benefits which will accrue to him from the normal rainfall. .... Thus the Slutsky case, while making a rather categorical statement regarding the rights of property owners in the clouds overhead, actually throws little light upon the problem involved.

Paul Binzak, Richard P. Buellesbach, Irving Zirbel, Comment: "Rights of Private Land Owners as Against Artificial Rain Makers," 34 Marquette Law Review 262, 264-65, Spring 1951.

Oklahoma 1954

Washington state 1956

Texas 1958-59

... the landowner is entitled to such precipitation as Nature deigns to bestow. We believe that the landowner is entitled, therefore and thereby, to such rainfall as may come from clouds over his own property that Nature, in her caprice, may provide. It follows, therefore, that this enjoyment of[,] or entitlement to[,] the benefits of Nature should be protected by the courts if interfered with improperly and unlawfully. .... We do not mean to say or imply at this time[,] or under conditions present in this particular case[,] that the landowner has a right to prevent or control weather modification over land not his own. We do not pass upon that point here, and we do not intend any implication to that effect.

319 S.W.2d at 945. Duplicated in a companion case, Southwest Weather Research v. Rounsaville, 320 S.W.2d 211, 216 (Tex.App. 1958), aff'd, 327 S.W.2d 417 (Tex. 1959).

Nebraska 1960

California 1964

1. the cloud seeder, North American Weather Consultants;
2. the company that hired the cloud seeder, Pacific Gas and Electric Company (PG&E);
3. the state of California, who operated the levee that broke; and
4. fifty unknown defendants, who would be identified later.

1. Plaintiffs' attorney hired a meteorologist as an expert witness just a few months before the trial began (despite approximately five years of preparation by the attorney) and that expert wished to present a theory that had been mentioned in neither the pleadings nor discovery. (Mann, 1968, pp. 696, 701-02) Such late changes in the theory of the case is basically trial by ambush and the judge properly granted the defense motion to prevent such testimony. Because of poor preparation by the plaintiff's attorney, not all of the relevant facts and opinions were presented at trial.
   
   
2. During the trial, PG&E paid plaintiffs' attorney in return for his agreement not to appeal a possible verdict favoring either PG&E or the cloud seeder. After this agreement, plaintiffs' attorney concentrated on suing the state of California and apparently avoided cross-examination of witnesses presented by the defendants on cloud seeding issues. (Mann, 1968, p. 708)

Plaintiffs may not recover against the PG&E or North American Weather Consultants as they have failed in their burden of proof. The court finds that neither the PG&E nor North American Weather Consultants produced any significant increase in rainfall or snowfall outside of the Lake Almanor water shed. The effects of cloud seeding were limited to the pre-determined target area which drains only into Lake Almanor. Lake Almanor never spilled at any time before or during the flood; and accordingly, any increase produced by cloud seeding was successfully impounded by that PG&E lake.

The breaking of the levees was neither proximately caused nor contributed to either by the maintenance or by the operation of the artificial rain making equipment of any defendant in this lawsuit.

Judge John P. MacMurray, Adams v. California, Nr. 10112 (Superior Court, Sutter County, Calif. 6 April 1964), quoted in both (Morris, 1968, pp. 182-83) and (Mann, 1968, p. 708).

no jury in this case

Of the 400 potential jurors, only 120 agreed that they would serve for one year. All but 10 of them were women, and those 110 women had generally a background as a grocery store clerk, or a packinghouse worker. Both sides, after spending literally years in preparing technical testimony, were somewhat discouraged with the idea of having to present this information to a level of women in their 60s who had an inadequate scientific knowledge to properly follow the testimony.

Morris, 1968, p. 173.

As an aside, I note that most litigators in the USA express their belief in the wisdom of juries, without any evidence to support that belief, and in the face of the obvious inability of jurors who have no education in science and mathematics to understand scientific evidence. Even worse, jurors are called upon to evaluate conflicting expert opinions, which is much more difficult than understanding the basis for each opinion. If doctoral-level scientists can not agree on conclusions, what hope is there for people on the jury (some of whom are probably high-school dropouts and none of whom have taken even introductory classes in calculus and physics) to analyze and evaluate such expert testimony? While I understand and agree with the above-quoted statement of Attorney Morris, I also wish to reject his dim opinion of stupid old women. The men in Sutter County, California would be equally unable to understand and to evaluate scientific evidence. The problem is that most jurors are ignorant of science and mathematics, not that jurors are women.

Pennsylvania 1968

... the question of whether or not a landowner outside of the "target area" is entitled to weather in its natural form, even though defendants' activities were not intended to, and perhaps did not, in fact, affect the amount of rainfall Fulton County received or did not receive. To state it another way, does a landowner have a right to weather unmodified anywhere?

44 Pa. D. & C. at 752, 1968 WL 6708 at *2.

1. Plaintiffs had not proven that they were harmed by the cloud seeding. For example, there was a drought in 1965, but defendant could not possibly have caused the drought in 1965, because defendant did no cloud seeding in that year. The drought in 1963 began before the defendants began their cloud seeding program. Plaintiffs had not proven that there was a "threat of immediate and irreparable harm", which is one of the conditions for granting an injunction. 44 Pa. D. & C. at 763-64, 1968 WL 6708 at *9.
   
   
2. There was an adequate remedy at law, which barred the court from granting the equitable remedy of an injunction. After the plaintiff filed this litigation, the Pennsylvania legislature in 1965 enacted a statute regulating cloud seeding. That statute specifically forbade weather modification activities in any county "where the county commissioners enact a resolution stating that such actions are detrimental to the welfare of the country." In 1967, the Pennsylvania legislature repealed that statute and enacted a new statute that "specifically provides for damage compensation to property owners" who are harmed by weather modification activities in Pennsylvania. These statutes made the case moot. 44 Pa. D. & C. at 762-64, 1968 WL 6708 at *9-*10.

It seems to us that one of the elements of land in its "natural condition" must be weather in its natural form, including all forms of natural precipitation. .... [A landowner] does not assume the risk of weather modification activities by neighbors.

44 Pa. D. & C. at 756, 1968 WL 6708 at *5.

We hold specifically that every landowner has a property right in the clouds and the water in them. No individual has the right to determine for himself what his needs are and produce those needs by artifical means to the prejudice and detriment of his neighbors. However, we feel that this cannot be an unqualified right. .... ... cloud seeding has been used[,] and will continue to be used[,] to produce rain to relieve the water shortage in our urban areas. We feel then that weather modification activities undertaken in the public interest, as opposed to private interests, and under the direction and control of governmental authority should and must be permitted.

44 Pa. D. & C. at 759-60, 1968 WL 6708 at *7.

Moisture in the clouds is common property belonging to everyone who will benefit from what occurs naturally in the clouds. Every owner of land has a property right in the moisture in the clouds and the right to receive that moisture in its natural form subject to such weather modification activities as shall be carried out by governmental authorities in the public, as opposed to private, interest.

44 Pa. D. & C. at 763, 1968 WL 6708 at *9 (Conclusions of Law Nrs. 1 and 2).

Montana 1974

South Dakota 1977

1. Whether the plaintiffs can maintain a class action, on behalf of all of the victims of this flood.
2. Whether the plaintiffs need to exhaust their administrative claims before filing litigation.
3. Whether the U.S. Government was immune under 33 U.S.C. § 702c, which provides for immunity for floods. That statute was enacted in the context of flood control (e.g., dams, dikes, and levees) legislation in the year 1928 and it is not clear if the statute also applied to floods caused by cloud seeding.

North Dakota 1981

We agree with the plaintiffs that one of the reasons for class-action status is to permit a sharing of the expenses of litigation. [citation omitted] However, we cannot determine that the class-action rule was intended to permit the plaintiffs to obtain class-action status in order to permit them to solicit additional plaintiffs who might be willing to share the costs of exploring a novel theory of liability.
....
Plaintiffs argue that they do not have the financial resources to sustain such a suit in their individual capacities, and that may well be the situation. However, we do not believe the class-action rule was intended primarily as a vehicle by which parties whose alleged damage exceeds the estimated costs of litigation but who do not have the financial resources to sustain the costs of litigation are enabled to finance their claims, although one of the benefits to parties of class-action status is a sharing of the litigation expenses.

Saba, at 596.

California 1987-1990

1. an inverse condemnation action, seeking compensation for the County's taking of the land, contrary to article I, § 9 of the California Constitution. (Similar rights are contained in the Fifth Amendment to the U.S. Constitution.)
   
   
2. tort liability for cloud seeding conducted by the County's Flood Control District.

conclusions about case law in the USA

• None of these reported judicial opinions discuss negligent cloud seeding.
• Few of these reported opinions discuss property rights of landowners to rain from the clouds that are either above their land or upwind from their land.
• Since 1980, there have been only two reported cases on the topic of either: (a) injunctions prohibiting cloud seeding or (b) liability for alleged negligent cloud seeding. Neither of those two cases discussed the merits of the cloud seeding issue.
• Apparently no plaintiff has alleged a deprivation of precipitation in a tort case involving cloud seeding in the USA.

• Litigation is expensive and slow. Plaintiffs often exhaust their financial resources before all of the possible appeals can be heard, which forces a premature end to an interesting case.
  
  
• In other cases, subsequent events (e.g., end of a drought) may make it unimportant to plaintiffs to resolve all of the issues in their original complaint.
  
  
• Sometimes defendants offer a substantial financial settlement to plaintiffs, in order to avoid the possibility of a reported judicial opinion that could serve as unfavorable precedent for the defendants in future cases. Plaintiffs accept the offer and the case ends, without any judicial opinion on the merits. (I do not know that this has happened in any weather modification case, but it is common in some other areas of law.)
  
  
• The job of judges is only to decide the facts or law necessary to dispose of the particular case before them, not to write an essay about novel legal issues that are unnecessary to the disposition of the current case. When a judge does write about unnecessary issues, the judge's comments are obiter dicta, which are not precedent for future cases.
  
  In particular, it is rare for a judge in an appellate court to give guidance to the judge in the trial court on matters not specifically mentioned in the appeal. For example, as mentioned in several cases above, an interlocutory appeal on certifying a class action only decided the desirability of the class action, without any discussion of the merits of the case, even if the appellate judge should know that the trial judge will need guidance in dealing with novel, unprecedented legal issues in a future trial on the merits. In other words, appellate judges exist to correct mistakes already made by lower court, not to help avoid mistakes that might be made by the lower court in a future trial in the case.
  
  This limited role of judges is contrasted with the job of the scientist who writes a paper or book for publication (or with a law professor who writes an article in a law review), where the author discusses a subject thoroughly.
  
  
• Most judges are burdened by a very large number of cases, so they do not have adequate time to write a careful, scholarly discussion of novel issues that would be worthy of publication.
  
  
• When a judge makes a decision on any important new topic, it is almost certain that a substantial number of people (including the losing party in litigation and his/her supporters) will react with anger and scorn, simply because they disagree with the judge's decision. The angry public reaction discourages judges from saying more than the minimum amount necessary to dispose of a case.
  
  
• And, finally, because most attorneys and judges went through high school and college taking the minimum number of classes (and the easiest classes) in science and mathematics, they are now poorly prepared to handle cases involving scientific evidence (e.g., about cloud seeding). There is a natural tendency for judges, like everyone else, to avoid what they do not understand.
  
  In one of the earliest reported cases involving cloud seeding, the Texas Supreme Court twice mentioned "complicated scientific problems". 327 S.W.2d at 421. To me, as a scientist, such problems are no more complicated than in many other areas of scientific or engineering research.

4. General Principles
of Tort Liability

• strict-liability torts   Plaintiff only needs to prove that defendant caused plaintiff's injury, without also needing to prove wrongful or negligent conduct by plaintiff. When plaintiff wins a strict-liability tort case, the court orders defendant to compensate plaintiff, as a way of redistributing wealth (i.e., a large corporation or insurance company pays an injured individual, as part of the cost of doing business), not as compensation for a wrong. There are only a few kinds of strict-liability torts, of which "abnormally dangerous activities" might be relevant to cloud seeding.
  
  
• fault-based torts in which the injury to plaintiff was produced as a result of some kind of negligent or wrongful act by the defendant. Essential elements in proving these torts is showing that defendant owed a specific duty of care to the plaintiff and that defendant breached his/her duty.
  
  
• trespass or nuisance, which require either intent, negligence, or abnormally dangerous activity.

1. duty, a standard of conduct, e.g., specify the appropriate care that defendant should have used.
   
   
2. breach of that duty, e.g., the defendant's conduct was negligent.
   
   
3. injury, proof of the harm that the plaintiff suffered as a result of defendant's act(s), or defendant's failure to act.   If weather modification causes an amount of rain that is only slightly different from the average rainfall, I suggest below that there is no injury to plaintiff.
   
   
4. causation, proof that defendant caused the injury.   It is important to understand that, even if a cloud seeder was negligent, there is no tort liability unless the cloud seeder can be proved to have caused the harm to a plaintiff. In the context of weather modification torts, the proof of causation has been so difficult that I discuss this topic in a separate section below.

possible strict-liability tort

• North Dakota § 61-04.1-37(1) (1981);
• Texas Art. 165c, § 1.72(a) (2001)   This Texas statute was first enacted in 1966. (Davis, 1974, p. 430);
• Wisconsin § 93.35(14)(a) (1981).

possible fault-based torts

• negligence per se   Two state statutes proclaim that failure of a cloud seeder to follow the licensing requirements or state regulations is negligence per se:
  • Colorado § 36-20-123(2)(a) (1972);
  • Wisconsin § 93.35(14)(d) (1981).
  In these states, if the plaintiff can prove that the cloud seeder violated state law or regulations, then, as a matter of law, negligence is automatically proved.
  
  In the absence of such a statute, there is a common law duty to obey statutes and regulations that are designed to prevent harm. Restatement (Second) of Torts, §§ 285(a), 286, 288B(1) (1965).
  
  
• negligence   The cloud seeder is held to a standard of care of a competent, professional meteorologist who was engaging in cloud seeding, who takes reasonable care to avoid foreseeable and unreasonable risks. (Note that the standard is not an average meteorologist, because that would make half of the cloud seeders negligent!) The standard of care can be established in several ways:
  • a statute or government regulation that is intended to protect the public safety. Restatement Second of Torts § 286 (1965).
  • a standard or code of conduct adopted by a professional society.
  • testimony of another meteorologist who has experience in weather modification.
  However, conduct that conforms with all relevant statutes, regulations, standards, and customs in the trade might still be negligent, if the conduct presents an unreasonable risk of harm.
  
  A commercial cloud seeder who advertises his/her services as unusually competent (e.g., having tens of years of experience, employing scientists who have earned a Ph.D. in meteorology, etc.) can properly be held to a higher standard than a typical cloud seeder. Restatement (Second) of Torts § 289(b) and § 299A (1965). This is an area familiar to attorneys who concentrate in tort litigation: advertising can come back to haunt a defendant.
  
  As an example of how a negligence claim might arise, Jones (1991, p. 1177) gave an example of a cloud seeder who decides to seed on a day for which heavy rains are forecast, therefore enhancing heavy rain to a catastrophic condition. I agree that it is a good example of negligence, but the example contains two hidden assumptions: (1) that forecasts of the amount of rain are usually accurate, and (2) that cloud seeding usually enhances (not decreases) the amount of rain. In an actual case, plaintiffs would need to prove those assumptions were true, which could be a formidable burden.

trespass or nuisance

• trespass is the invasion of either a person or a thing upon the land owned by another person. Restatement Second Torts §§ 158, 165 (1965).
  
  Typical cloud seeding releases tens or hundreds of grams of nontoxic AgI into a cloud or the air. Some legal commentators (e.g., Davis, 1974, p. 430;   Ferdon, 1984, pp. 688-89;   Jones, 1991, pp. 1174-75) have suggested that this release of AgI might be considered a trespass on the plaintiff's land.
  
  Several state statutes declare that weather modification is not a trespass:
  • Colorado § 36-20-123(1) (1972);
  • North Dakota § 61-04.1-37(2) (1981);
  • Utah § 73-15-7 (1973) (no presumption of trespass);
  • Wisconsin § 93.35(14)(b) (1981).
  
  I believe that a trespass claim for the AgI itself is a bit specious:
  • the quantity of AgI is trivial.
  • the AgI occurs as microscopic crystals, which are real, but not perceptible to the human senses.
  • the AgI itself is essentially harmless (Standler and Vonnegut, 1972), unlike a noxious pollutant.
  • most of the AgI is contained in either the air, cloud, or rainwater, none of which may touch the land of a plaintiff who alleges that cloud seeding deprived him/her of rain.
  
  Instead of focusing on the AgI itself, I suggest focusing on the effect of the AgI in either: (a) diminishing rainfall that would have otherwise occurred or (b) causing excessive rainfall (e.g., a flood). In fact, the first law review article written on the subject of weather modification said:

  If the cloud seeder intentionally causes rain to fall on the plaintiff's land, a trespass is committed as clearly as if he had turned a stream of water from a hose on plaintiff's house. Where the defendant does not intend to cause rainfall on the plaintiff's land, the plaintiff would be required to show that the defendant was either negligent or engaged in an ultrahazardous activity.

  anonymous, 1949, p. 532.

  "Ultrahazardous activity" was the nomenclature in the First Restatement of Torts for what the Second Restatement in 1977 called an "abnormally dangerous activity".

  
  It is well-established law that surface water entering plaintiff's land can be a trespass. For example, consider the following cases:
  • Red Lake Hunting & Fishing Club v. Burleson, 219 S.W.2d 115 (Tex.Civ.App. 1949);
  • Levene v. City of Salem, 229 P.2d 255 (Or. 1951);
  • Yenchko v. Grontkowski, 122 A.2d 705 (Penn. 1956);
  • Corrington v. Kalicak, 319 S.W.2d 888 (Mo.Ct.App. 1959);
  • Herro v. Board of County Road Commissioners, 118 N.W.2d 271 (Mich. 1962);
  • Bell v. Union Electric Co., 367 S.W.2d 812 (Mo.Ct.App. 1963);
  • Union Pacific Railroad v. Vale, Oregon Irrigation Dist., 253 F.Supp. 251 (D.Or. 1966);
  • First Kingston Corp. v. Thompson, 152 S.E.2d 837 (Ga. 1967);
  • Senn v. Bunick, 594 P.2d 837 (Or.App. 1979);
  • Ratliff Co. v Henley, 405 So.2d 141 (Ala. 1981);
  • Mack v. Edens, 412 S.E.2d 431 (S.Car.App. 1991);
  • U.S. v. Imperial Irrigation Dist., 799 F.Supp. 1052 (S.D.Calif. 1992);
  • Easterling v. Awtrey Building Corp., 770 So.2d 606 (Ala. 1999);
  • Canton v. Graniteville Fire Dist. Nr. 4, 762 A.2d 808 (Vt. 2000);
  • Dougan v. Rossville Drainage Dist., 15 P.3d 338 (Kan. 2000);
  • Sumitomo Corp. v. Deal, 569 S.E.2d 608 (Ga.App. 2002).
  
  Liability for trespass requires plaintiff to prove either: intent, negligence, or "abnormally dangerous activity" by the defendant. Restatement Second of Torts, § 166 (1965). It is an unanswered question whether a cloud seeder's intent to cause rain would justify trespass liability for a consequential flood.
  
  
• private nuisance   "A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land." Restatement Second of Torts, § 821D (1979). A private nuisance requires an invasion that is either:
  1. "intentional and unreasonable" or
  2. unintentional and either:
     1. negligent conduct,
     2. reckless conduct, or
     3. abnormally dangerous activities.
  Id. § 822. Several law review notes (anonymous, 1960, pp.308-09;   Ferdon, 1984, p. 690-91;   Jones, 1991, p. 1175-77) have discussed how nuisance might be applied to cloud seeding.
  
  Two state statutes declare that weather modification is neither a public nor a private nuisance:
  • Colorado § 36-20-123(1) (1972);
  • Utah § 73-15-7 (1973) (no presumption of nuisance).
  
  The famous torts textbook by Prosser and Keeton gives three possibilities for enjoining nuisances:

  (1) if defendant's activity is "reasonable" and if that activity causes an "insubstantial" inference with the use of plaintiff's land, then neither an injunctive nor a tort remedy is available.

  (2) if "defendant's activity is socially desirable" and "reasonable", then the injunction is not granted, but plaintiff can sue in tort for damage that plaintiff suffers if the effect of the defendant's acts is "substantial ... such as would be offensive or inconvenient to the normal person".

  (3) if defendant's "conduct at the time and place is unreasonable" and if "the gravity of the harm outweighs the utility of the [defendant's] conduct", then the injunction is granted.

  William L. Prosser, W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, 5th ed., West Publishing, 1984, at §§ 87, 88A, at pages 620, 631 of the Hornbook edition.

summary of torts

proof of causation

• "a staggering burden". (Stark, 1957, p. 706)
• "Before the courts will award damages ... in weather modification cases, they must be convinced ... that (1) the modification attempt did, in fact, alter the weather and (2) the modification of the weather was, in fact, the cause of the plaintiff's damage and that this damage would not have occurred otherwise. Because of the nature of the weather modification problem, these factors will be exceedingly difficult, if not impossible, to prove." (Johnson, 1968, p. 85)
• "Failure to prove that the defendants' actions were the legal cause of harm suffered by the plaintiffs has been the downfall of most persons seeking judicial relief against weather modifiers." (Davis, 1974, pp. 412-413)
• "Failure to demonstrate the linkage between conduct of the defendant and harm to the plaintiff's property remains the major impediment in litigation involving hail suppression and other types of cloud seeding." (Davis, 1977, p. 40)
• "probably be a futile effort with his insurmountable proof problems." (Kirby, 1978, p. 60).
• "With only one exception [i.e., Southwest Weather Research, which was a request for an injunction, not a tort case], plaintiffs to date have been unsuccessful in bearing that burden" of proving causation. (Ferdon, 1984, p. 686) "... plaintiff's seemingly impossible burden of proving causation ...." Id. at 698.
• "The primary reason plaintiffs have failed in court is that it is difficult, if not impossible, to prove causation." (Jones, 1991, p. 1169)

An attorney wrote in 1978:

Each storm system is individual, and it is impossible to ascertain the effect of any modification effort for the very simple reason that a cloud cannot be unmodified and modified at the same time.

William A. Thomas (1978, p. 119).

A law student, writing in 1984, commented that:

Despite satellites, computers, and technical wizardry, it is impossible to predict exactly how much rain will fall in a given area at a given time, even under normal, unmodified conditions.   ....   Because it is impossible to predict exactly how much precipitation a given cloud would produce in the absence of seeding, it is equally impossible to measure the effect of seeding.

Ferdon (1984, p. 683-84).

1. In cases during the 1950s and 1960s, scientific research had not yet progressed to the point of being able to prove causation. Problems proving causation in old cases does not necessarily imply that current cases will also fail.
   
   
2. Evidence that proves causation will involve atmospheric physics (e.g., thermodynamics of water vapor, liquid water, and ice) and statistical analyses of cloud seeding experiments. Such evidence will be incomprehensible to jurors and judges, because they are ignorant of both physics and statistics. (Incidentally, this is a common problem in tort cases involving science, technology, or medicine. In my opinion, courts in the USA have not yet found a satisfactory way of handling scientific evidence. Indeed, courts in the USA avoided evaluating scientific evidence until the landmark June 1993 U.S. Supreme Court decision in Daubert.)
   
   
3. Scientists who are experts in weather modification may be more sympathetic to the defendant cloud seeder than to injured plaintiffs, so it may be difficult for plaintiffs to find credible expert witnesses to testify on their behalf.
   
   
4. Cloud seeding produces a small perturbation (e.g., perhaps 10% extra rainfall as the result of cloud seeding) of a phenomena that has much larger natural fluctuations. Without a complete understanding of the physical processes in the cloud and measurement of all relevant parameters, one can not accurately predict the effect of cloud seeding on a single cloud. Because we lack this complete understanding and because we lack adequate data, we can currently only know the effect of cloud seeding by statistical comparison of large numbers of seeded and unseeded clouds. However, attorneys for the defendant cloud seeder will likely object to statistical evidence and demand only evidence that is restricted to the actual cloud(s) involved in the case.

inconsistent position
of cloud seeders

A science journalist noted:

Weather modifiers are pleased to receive credit when the weather is behaving as desired, but, should a destructive or unwanted storm bring a lawsuit, they readily (and thus far successfully) take refuge in the absence of scientific proof of causality.

(Carter, 1973, p. 1348).

5. Need alternative to tort litigation

insurance

• would also compensate landowners for harm from unusual natural weather (a drought has the same effect on the landowner, regardless of whether the drought is naturally occurring or the result of modified weather);
• remove the need for landowners to prove that a cloud seeder caused the drought or flood;
• solve the problems associated with class action litigation by landowners that was discussed above in the Lundsford and Saba cases.
• spread the costs of litigation over all who pay for insurance, instead of concentrating the costs of litigation on plaintiff(s).

6. Support of Basic Scientific Research

7. Property Rights in Water
from Cloud Seeding

unjust enrichment of nonpayers?

deprivation downwind
from cloud seeding?

In a typical precipitating cap cloud about 20 percent of the water vapor in the upwind air mass (which we shall assume is cloud free) condenses. Of this, about 20 percent falls out as precipitation. Therefore, 100 (0.20 × 0.20) = 4% of the water vapor is removed. If cloud seeding increases the precipitation by 10 percent, then the water vapor is depleted by an additional 100 (0.10 × 0.04) = 0.4%, a relatively small figure.

The argument is quite valid and has been used for many years to explain that a rather trivial reduction in total water would occur in the area downwind of a target area.   ....

Elliott, 1974, p. 61.

Does intervention mean taking rain from someone else further down the cloud drift? Scientists appear to say no, but lay persons do not believe readily, and therefore the threat of litigation has to be considered.

Beck, 2001, p. 3-12.

This reaction by laymen is one of the most exasperating features of making public policy about science or technology. Laymen will form a personal opinion, even a strong belief, without any rational reasons to support their opinion. On the other hand, scientists ideally form opinions after considering all of the relevant facts and theories, including measurements and calculations.

8. Conclusion

9. Bibliography

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