April 24, 2014

Environmental Concerns in Estate Planning and Real Estate Conveyancing

When constructing an estate plan, property conveyance is an important feature. However, devising property can sometimes create unanticipated problems when the property is subject to environmental laws such as the Clean Water Act,  Endangered Species Act, and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The Clean Water Act (CWA) regulates the discharge of pollutants into natural waters and regulates quality standards for surface waters. The CWA originated in 1948, but was significantly amended into the current CWA in 1972. There are numerous provisions of the CWA that may affect a landowner’s conveyance, but the most likely scenario encountered is the necessity of obtaining a Section 404 permit, which can authorize discharge of dredge or fill material into waters.

The Endangered Species Act (ESA) intends to protect and recover endangered or imperiled species in order to maintain the natural ecosystem. It has been described as the most far-reaching wildlife preservation act in the world. Although the ESA does not prevent conveyance of property, it has significant potential to inhibit development of land. If an endangered or threatened species resides on the land to be conveyed, the ESA could prohibit any changes to the natural ecosystem of that species.

CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act, was created by Congress in 1980. CERCLA creates penalties for the release of hazardous substances. It also encourages individuals to clean up waste in order to recover cleanup costs from others. CERCLA’s provisions can extend to inherited property, trusts, estates, and trustees or fiduciaries, so it has broad application to estate planning.

Strategies for addressing these environmental acts will be discussed at the CLE offices on Friday, March 9, 2013, at the “Natural Resource Issues in Estate Planning” seminar. Water law topics, real estate conveyancing, conveyance of mineral interests, oil and gas planning, and hard minerals will also be discussed. To register, click the link below or call the CLE offices at (303) 860-0608.

CLE Program: Natural Resource Issues in Estate Planning

This CLE presentation will take place on Friday, March 8, 2013, at 9:00 a.m. Click here to register for the live program, and click here to register for the webcast.

Can’t make the live program? Click here to order the homestudy.

Colorado Court of Appeals: Sex Offender Convicted of Class 3 Felony or Higher Must Receive Minimum of 20 Years’ Probation; Trial Court Has No Discretion to Terminate Probation Early

The Colorado Court of Appeals issued its opinion in People v. Dinkel on February 28, 2013.

Probation—Sex Offender—Sexual Assault—Child Under 15.

Defendant appealed the district court’s order denying his motion to terminate his probation. The order was affirmed.

In 2002, defendant pleaded guilty to sexual assault on a child under the age or 15 by a person in a position of trust, a class 3 felony. The trial court sentenced him to an indeterminate twenty-year-to-life term of sex offender intensive supervision probation (SOISP). In 2010, the trial court granted defendant’s request to modify his probation from SOISP to “regular Sex Offender Supervision.” In 2011, the trial court denied defendant’s request to terminate his probation in its entirety.

Defendant contended that the trial court had discretion under § 18-1.3-204(4)(a) of the Sex Offender Lifetime Supervision Act (Act) to reduce or increase a term of a sex offender’s probation, and its discretion is not limited by the provisions of §§ 18-1.3-1004(2)(a) and -1008(2) of the Act. Under the plain language of the Act, however, a sex offender who is convicted of a class 3 felony and sentenced to probation must receive a minimum of twenty years of probation. The Act has no provision permitting discharge of the sex offender’s probationary sentence before the twenty-year review. Thus, the district court did not have discretion to terminate defendant’s probation until he completed at least twenty years of the sentence.

Summary and full case available here.

Colorado Court of Appeals: Jury Instruction that Omitted Intent Element of Crime Not Harmless Therefore Conviction Reversed

The Colorado Court of Appeals issued its opinion in People v. Ridgeway on Thursday, February 28, 2013.

Possession of Burglary Tools—Intent—Jury Instruction.

Defendant Lewis Ridgeway appealed the judgment of conviction entered on a jury verdict finding him guilty of possession of burglary tools. The judgment was reversed and the case was remanded for a new trial.

Ridgeway was charged with, among other things, second-degree burglary, theft of less than $500, and possession of burglary tools after burglarizing a check-cashing business. Ridgeway argued that the trial court failed to properly instruct the jury regarding the elements of the crime of possession of burglary tools. To convict a defendant for possession of burglary tools, a jury must find beyond a reasonable doubt both that the defendant possessed burglary tools and that he or she had the intent to use them to commit a burglary. Here, the elemental instruction submitted to the jury on possession of burglary tools omitted the intent element of the crime. Because the instructional error was not harmless beyond a reasonable doubt, the judgment of conviction was reversed and the case was remanded for a new trial.

Summary and full case available here.

Tenth Circuit: Wiretap and GPS Pinging Evidence Properly Admitted in Drug Conspiracy Case

The Tenth Circuit published its opinion in United States v. Barajas  on Monday, March 4, 2013.

Defendant-Appellant Samuel Barajas was convicted of drug charges and using a communication facility, a cellular telephone, in committing, causing, and facilitating the drug conspiracy. Barajas appealed the denial of his motion to suppress all evidence obtained from the wiretap surveillance and GPS pinging of certain cell phones.

The wiretaps were issued under California law, which conforms to federal law, so the Tenth Circuit applied federal standards to determine the evidence’s admissibility. After reviewing the affidavits used to obtain the wiretaps, the court found them sufficient to show the wiretaps were necessary. The government had explained why traditional investigative techniques were ineffective and why other techniques would prove ineffective if tried. The court affirmed the district court’s denial of the defendant’s motion to suppress the wiretaps.

Barajas also argued there was no probable cause in the affidavits to support the search for GPS data via pinging. The affiant had not requested GPS pinging in the affidavits, although the proposed orders contained the pinging. The Tenth Circuit assumed without deciding that pinging is a search, while pointing out the Sixth Circuit has held pinging is not a search under the Fourth Amendment. Because the affidavit did not contain an explanation of how Barajas’s location would reveal information about the conspiracy, the court found there may not have been probable cause. Even if there was not, however, the good-faith exception applied so the court affirmed the GPS data evidence’s admission.

Tenth Circuit: Unpublished Opinions, 3/5/13

On Tuesday, March 5, 2013, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Mays v. Martin

Daniel v. Franklin

Weldon v. Ramstad-Hvass

United States v. Navarro-Morales

United States v. Gray

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 3/4/13

On Monday, March 4, 2013, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

United States v. Shea

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

HB 13-1124: Changing Colorado’s Unemployment Insurance Laws In Order to Comply with Federal Law

On January 18, 2013, Rep. Dan Pabon and Sen. Cheri Jahn introduced HB 13-1124 - Concerning the Reduction of Improper Unemployment Insurance Benefit Payments Through Compliance with the Federal “Trade Adjustment Assistance Extension Act of 2011,” and, in Connection Therewith, Making an AppropriationThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

As a result of amendments made to the federal “Unemployment Tax Act” and “Social Security Act” by the federal “Trade Adjustment Assistance Extension Act of 2011,” in order to keep Colorado’s unemployment insurance system in compliance with federal law, the bill makes the following changes to the state unemployment insurance laws:

  • Requires that employer accounts be charged when an individual is erroneously paid benefits if the overpayment occurred as a result of an employer’s failure to provide timely information and the division of unemployment insurance establishes a pattern of this behavior by the employer; and
  • Increases the penalty on fraudulent overpayments and requires 23 percent of the penalty to be deposited in the unemployment compensation fund and the remainder into the unemployment revenue fund.

On March 1, the House amended the bill and passed it on 2nd Reading; 3rd Reading is expected on Monday, March 4.

Since this summary, the bill passed Third Reading in the House.

HB 13-1121: Allowing Pharmacists to Substitute Biosimilar Drugs When Available

On January 18, 2013, Rep. Sue Schafer and Sen. Rollie Heath introduced HB 13-1121 - Concerning the Ability of a Pharmacist to Substitute a Biosimilar Product for a Prescribed Biological Product When Certain Conditions are SatisfiedThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law permits a pharmacist to substitute an equivalent drug product for a prescribed drug if the substituted drug is the same generic drug type as the prescribed drug, and the pharmacist determines that the substituted drug is therapeutically equivalent to and interchangeable with the prescribed drug. While a pharmacist may substitute chemical drugs, current law does not allow a pharmacist to substitute biological drug products.

The bill allows a pharmacist to substitute a biosimilar product if the federal food and drug administration (FDA) has determined the biosimilar product to be interchangeable with a prescribed biological product for the indicated use and if the practitioner has not indicated that the prescription must be dispensed as written. Once a substitution occurs, the pharmacist must notify the practitioner of the substitution, and the pharmacy from which the biosimilar product was dispensed must retain a record of the substitution for at least five years. A pharmacist may comply with the notice requirement by entering the substitution information in an electronic system between the prescribing physician and the pharmacist, including an electronic medical record. The requirement to notify the prescribing practitioner of the substitution of an interchangeable biosimilar product is repealed three years after the date on which the FDA first approves a biosimilar product as interchangeable with a specific biological product.

As with the substitution of a chemical drug, the pharmacist substituting a biosimilar product for a prescribed biological product must notify the purchaser orally and in writing and may only substitute a biosimilar product if the substituted product costs less than the prescribed biological product, unless the prescribed biological product is not in stock and the purchaser consents to the higher-priced biosimilar product.

The bill requires the state board of pharmacy to maintain a link on its web site to the FDA resource that identifies biosimilar products approved as interchangeable with specific biological products. On Feb. 26, the bill passed 3rd Reading in the House.

HB 13-1117: Amending Administration of Early Childhood Development Programs

On January 18, 2013, Rep. Millie Hamner and Sen. Mary Hodge introduced HB 13-1117 - Concerning Alignment of Child Development Programs. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill states the general assembly’s recognition that it is in the state’s best interest for a specific office within the department of human services (department) to administer early childhood programs.

The bill specifies that the department has the responsibility to administer early childhood programs and to assist the state board of human services in awarding grants. Participation in any early childhood program is voluntary and is not intended to interfere with parental rights.

The bill moves the early childhood leadership council (ECLC) from the Governor’s office to the department. The overall membership is reduced from 35 to 20 members, by removing representatives of the office of information technology, the office of economic development, the state workforce development council, and the legislature. The reconstituted ECLC will now include representatives from the local public health community. The ECLC’s duties are changed to include more advising and monitoring of efforts around early childhood programs. The ECLC was scheduled to repeal July 1, 2013, but this date is extended to Sept. 1, 2018.

The bill relocates several boards and programs from the department of public health and environment to the department of human services without substantive change:

  • The nurse home visitation program;
  • The Tony Grampsas youth services program, the Colorado youth mentoring services program, the Colorado student dropout prevention and intervention program, and the Colorado student before-and-after-school project;
  • The Colorado Children’s Trust Fund and its board; and
  • The family resource center program.

The remaining sections of the bill make conforming amendments. On Feb. 22, the House gave final approval and passed the bill on 3rd Reading; the bill is assigned to the Health & Human Services Committee.

Colorado Court of Appeals: Emergency Room Physician Had No Vicarious Liability for Actions of Air Life Nurses

The Colorado Court of Appeals issued its opinion in Settle v. Basinger, M.D. on Thursday, February 28, 2013.

Emergency Room Physician’s Vicarious Liability—Negligent Supervision—Captain of the Ship Doctrine—Negligent Credentialing—Impeachment Evidence.

Plaintiffs William P. and Corinna Settle appealed the judgment of the trial court in favor of Janet Basinger, MD, and Rio Grande Citizens Foundation for Health Care, Inc. (Rio Grande Hospital). The judgment was affirmed.

After sustaining injuries from an ATV accident, William Settle was transported by ambulance to the Rio Grande Hospital emergency room, where Dr. Basinger was on duty. Dr. Basinger inserted a chest tube to remove air from Settle’s chest cavity before having him transported to Swedish Medical Center in Denver (Swedish). Swedish arranged for Air Life, an organization independent from the hospitals, to transport him. While Dr. Basinger was placing the chest tube, the Air Life nurses and another physician made two unsuccessful attempts to intubate Settle and then inserted a “Combitube” to stabilize him. At Swedish, lacerations to Settle’s posterior trachea and anterior and posterior esophagus caused by the Combivent tube were discovered, which later required multiple surgeries to repair.

Plaintiffs contended that the trial court erred when it denied their motion to amend the complaint to add claims against Dr. Basinger for vicarious liability and negligent supervision of the Air Life nurses. Plaintiffs alleged no facts, however, on which the court could have concluded that Dr. Basinger owed them a duty to supervise the Air Life nurses when they attempted the intubation. Additionally, the captain of the ship doctrine only applies to the authority of a surgeon in an operating room. It does not render an emergency room physician such as Dr. Basinger vicariously liable for negligent acts committed in the emergency room by non-hospital employees. Accordingly, the trial court did not err when it (1) denied plaintiffs’ motion to amend the complaint to add claims against Dr. Basinger for vicarious liability and negligent supervision of the Air Life nurses; (2) granted summary judgment in favor of Dr. Basinger on plaintiffs’ claim that Dr. Basinger failed to supervise the medical care that gave rise to Settles injuries; and (3) granted summary judgment in favor of Rio Grande Hospital on the negligent credentialing claim.

Plaintiffs further contended that the court erred when it limited cross-examination of Dr. Basinger and her expert witness and excluded other impeachment evidence. The trial court’s exclusion of the evidence was not manifestly arbitrary, unreasonable, or unfair, and there was no prejudicial error. Consequently, the court did not abuse its discretion when it granted the pretrial motions to exclude such testimony and evidence.

Plaintiffs also contended that the court erred when it did not allow them to “inquire into the fact” that another of defendants’ expert witnesses had been found guilty of unprofessional conduct, in violation of the Colorado Medical Practice Act. Defendants’ expert witness was a physician who had been convicted of driving while intoxicated and later was disciplined by the Board of Medical Examiners. However, testimony about the witness’s addiction to alcohol or narcotics was not admissible for any proper purpose in this matter.

Finally, the court did not err when it excluded portions of a witness’s deposition to remove references to insurance, excluded evidence of a letter from plaintiffs’ counsel to the witness saying it was permissible for her to meet with defense counsel, and allowed defense counsel to vouch for the credibility of a defense witness. The judgment was affirmed.

Summary and full case available here.