July 28, 2014

Tenth Circuit: Requiring EPA to Consider All Possible Environmental Issues Would Impede Implementation of Issues at Hand

The Tenth Circuit Court of Appeals issued its opinion in WildEarth Guardians v. United States Environmental Protection Agency on Wednesday, July 23, 2014.

Arizona Public Service Company operates a 5-unit power plant located on a Navajo reservation near Farmington, New Mexico. The plant is within 300 km of several federal Class I areas, including the Grand Canyon, Arches National Park, and Mesa Verde, and the air quality is reduced in all nearby Class I areas as a result of the plant. In 2009, the Environmental Protection Agency (EPA) began the rulemaking process to establish a final Federal Implementation Plan (FIP) to reduce haze by regulating emissions at the plant, and eventually released a proposal to regulate emissions. Arizona Public Service Company submitted an alternate proposal, in which it would close three of the plant’s units and install new selective catalytic-reduction technology on the remaining two units. The EPA found that this plan would significantly reduce emissions, and submitted the plan for comments after making some modifications. In 2012, the EPA adopted the FIP, offering two alternatives for reducing emissions: the first alternative was the original FIP and the second alternative was the modified FIP contemplating closure of three units at the plant.

During the comment period for the original FIP, the EPA received comments from the New Mexico Attorney General asserting that the plant’s mercury and selenium emissions were harming two local endangered fish species, and the EPA was required to consult on the effects of the rulemaking on the endangered species. After submitting its alternate plan, the EPA received comments from WildEarth Guardians and other environmental groups to the same effect as those of the New Mexico Attorney General. The EPA did not address the comments until after the FIP’s promulgation, at which time it responded that it disagreed with the commenters that the proposed FIP would affect the two endangered fish species and it had no duty to consult under the Endangered Species Act. The EPA further noted that closing the three units under the second alternative would reduce mercury and selenium emissions, and that the purpose of developing the FIP was to reduce visible emissions in federal Class I areas; mercury and selenium emissions do not affect visibility.

After the FIP’s promulgation, WildEarth Guardians filed a petition under 42 U.S.C. § 7607(b)(1) for review of the FIP, arguing that the EPA failed to consult with the Fish & Wildlife Service about protecting endangered fish even though it had discretion to do so. WildEarth suggested four grounds for the EPA’s exercise of discretion that could have benefited the fish: (1) requiring emissions filtering devices on the three subsequently closed units; (2) requiring Arizona Public Service Company to act sooner with regards to the remaining two units; (3) regulating sulfur dioxide emissions from the plant, which would have the collateral effect of reducing mercury and selenium emissions; or (4) directly regulating mercury and selenium emissions. The EPA and Arizona countered that the EPA had no duty to consult and no discretionary authority. The Tenth Circuit addressed WildEarth’s four suggestions in turn.

As to the first contention, the Tenth Circuit noted that it was moot, as Arizona Public Service Company closed those three units. The second suggestion was raised by WildEarth in a postbriefing letter to the court submitted under Fed. R. App. P. 28(j), but the argument was not made in WildEarth’s opening brief and was not reviewed by the Tenth Circuit. Likewise, the third suggestion was also raised in a 28(j) letter, not in the opening brief, so appellate review was denied as untimely. Prior to addressing the merits of WildEarth’s fourth argument, the Tenth Circuit evaluated its jurisdiction and found that WildEarth had Article III standing.

The Tenth Circuit then turned to the merits of WildEarth’s argument that the EPA had the duty to consult because the EPA had discretion to regulate mercury and selenium directly in the FIP. Although the Tenth Circuit doubted the EPA’s ability to regulate the emissions in the FIP, it ruled that the EPA’s “action” did not encompass the possibility of direct regulation and the subject matter of the duty to consult is bound by the agency’s action. The Tenth Circuit explained that consultation is required to ensure that the action does not jeopardize endangered species, and the request to consult does not encompass all things an agency might do but only what it is actually doing. In another case regarding the same plant, the Tenth Circuit commented that requiring the EPA to consider every possible environmental measure would impede implementation of the measures at hand, and some regulation is better than none at all.

WildEarth’s petition to review was denied.

Tenth Circuit: Unpublished Opinions, 7/24/2014

On Thursday, July 24, 2014, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Pedockie v. Bigelow

United States v. Linthicum

Salary v. Goff

United States v. Quinonez-Quintero

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Court of Appeals: Announcement Sheet, 7/24/2014

On Thursday, July 24, 2014, the Colorado Court of Appeals issued no published opinion and 39 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Defendant Who Wanted New Direct Appeal on Merits Denied

The Tenth Circuit Court of Appeals issued its opinion in United States v. Washington on Friday, July 18, 2014.

Defendant Tony Washington was convicted of conspiracy to distribute crack and marijuana and conspiracy to maintain a residence for the distribution of drugs. The district court calculated his base offense level for sentencing purposes based on approximately 890 grams of cocaine base attributed to him. On direct appeal, Washington challenged the sentence, arguing that the district court incorrectly converted the approximately $2,6oo cash found on Washington to 85.05 grams of base cocaine and the estimation that he and his co-contributors purchased 680.4 grams of cocaine base with their pooled money. The Tenth Circuit declined to address the cash conversion issue, noting that only the pooled purchase could reduce his offense level. The Tenth Circuit found sufficient evidence for the pooled purchase and denied Washington’s appeal.

Washington then filed a pro se motion for sentence reduction in the district court based on § 3582(c)(2) and Amendment 750 of the Sentencing Guidelines. He did not challenge the correctness of his base offense level, but instead argued erroneously that Amendment 750 allowed the district court to reconsider its decision to give him a sentence above the bottom of the sentencing range. The district court denied his motion because Amendment 750 did not alter his base offense level and therefore the court was powerless to adjust his sentence. After being appointed counsel, Washington filed another motion for sentence reduction pursuant to § 3582(c)(2), setting forth the history and asking the court to deny his motion so he could appeal to the Tenth Circuit. The government filed a response in which it stated it had no opposition to Washington’s motion being denied. The court denied his motion as requested, and Washington timely appealed to the Tenth Circuit. The government filed a motion to dismiss his appeal, arguing the Tenth Circuit lacked appellate jurisdiction because Washington’s appeal did not fit within the four categories of allowed sentencing appeals under 18 U.S.C. § 3742(a).

The Tenth Circuit first noted that the government unwittingly implicated a circuit split regarding appellate jurisdiction to review sentencing errors. Although Sixth Circuit precedent dictates that § 3742(a) is the sole source of jurisdiction to review denial of a § 3582(c)(2) sentence modification, the Ninth and Tenth circuits have found jurisdiction under § 1291 as well. Following its own precedent, the Tenth Circuit determined it had jurisdiction to hear the appeal. However, it found that Washington’s appeal was in actuality a request for the Tenth Circuit to address the issue it declined under direct appeal, whether the district court erred by converting his cash to base cocaine. The Tenth Circuit discussed the limited and streamlined process for § 3582(c)(2) and decided that nothing in that process allowed it to address an issue unresolved on direct appeal. Because Washington’s appeal did not raise a legal question that could be resolved by reference to the previous Tenth Circuit order but rather sought a brand new direct appeal, the district court’s motion denying his sentence reduction was affirmed. The government’s motion to dismiss for lack of jurisdiction was denied.

Tenth Circuit: En Banc Rehearing Denied in TABOR Case

The Tenth Circuit Court of Appeals issued its opinion in Kerr v. Hickenlooper on Tuesday, July 22, 2014.

This appeal was a request for en banc rehearing on the previously published decision in Kerr v. Hickenlooper. Rehearing by the original panel was denied. The petition was circulated to all the judges of the court, excluding Judge Matheson, who recused, and a majority of the court voted to deny rehearing. Four judges would have allowed en banc rehearing – Judges Hartz, Tymkovich, Gorsuch and Holmes. Judges Hartz, Tymkovich, and Gorsuch wrote dissents to the denial.

Tenth Circuit: Unpublished Opinions, 7/23/2014

On Wednesday, July 23, 2014, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

United States v. Yazzie

Crowell v. Denver Health & Hospital Authority

United States v. Cornelio-Legarda

Marshall v. Ormand

United States v. Zuber

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 7/22/2014

On Tuesday, July 22, 2014, the Tenth Circuit Court of Appeals issued one published opinion and 11 unpublished opinions.

Wilson v. Village of Los Lunas

Jones v. State of Kansas

United States v. Orozco

Chavez-Vasquez v. Holder

Griffin v. Smith

United States v. Sellors

United States v. Law

Mays v. McCollum

Vega v. Davis

DeMillard v. Burton

Juarez-Galvan v. United Parcel Service, Inc.

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Oklahoma’s Same-Sex Marriage Ban Ruled Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in Bishop v. Smith on Friday, July 18, 2014.

Sally Smith, the County Clerk for Tulsa County, Oklahoma, appealed the district court’s decision that Oklahoma’s same-sex marriage ban is unconstitutional. Smith also challenged the standing of the plaintiffs to bring the action, and whether the Oklahoma court clerk is a proper defendant as to Oklahoma’s non-recognition provision concerning same-sex marriages performed in another state. The Tenth Circuit determined that the plaintiffs had standing, affirmed the district court’s decision, and determined that the Oklahoma court clerk was an improper party regarding the non-recognition provision. In affirming, the Tenth Circuit applied its ruling in Kitchen v. Herbert, the Utah same-sex marriage case, in which it held that plaintiffs who wish to marry a partner of the same sex seek to exercise a fundamental right and state justifications for banning such marriages that hinge on the procreative potential of opposite sex marriage do not satisfy a narrow tailoring test applicable to laws that impinge upon fundamental liberties.

Mary Bishop and Sharon Baldwin are Oklahomans who are in a long-term relationship and wish to marry. They sought a marriage license from the Tulsa County Court Clerk in 2009 but were denied because they are both women. They have suffered harms from the denial, including incurring legal fees to prepare estate planning documents to confer upon each other the same rights they would have in marriage. Susan Barton and Gay Phillips were married in Canada in 2005 and again in California in 2008. They have suffered adverse tax consequences as a result of Oklahoma’s refusal to recognize their marriage, and say that Oklahoma treats them as inferior to their opposite-sex counterparts.

In November 2004, Bishop, Baldwin, Barton, and Phillips filed suit against the Oklahoma governor and  attorney general, challenging Oklahoma’s state constitutional ban on same-sex marriage. The governor and attorney general filed a motion to dismiss in 2006, which was denied, and appealed that denial to the Tenth Circuit. A panel of the Tenth Circuit determined in 2009 that plaintiffs failed to name a defendant having a causal connection to their injury, such as a court clerk. On remand, the district court allowed plaintiffs to amend their complaint to add Smith in her official capacity as Tulsa County Court Clerk, and to add challenges to §§ 2 and 3 of DOMA against the United States ex rel. Eric Holder. In 2011, the United States notified the district court that it would no longer defend § 3 of DOMA on the merits, and the Bipartisan Legal Advisory Group was allowed to intervene to defend the law. The case proceeded to summary judgment, and Smith submitted an affidavit that she had no authority to recognize out-of-state marriages, be they of same-sex or opposite-sex couples.

After the U.S. Supreme Court’s decision in United States v. Windsor, the district court entered an opinion and order disposing of the defendants’ motion to dismiss and the cross-motions for summary judgment. The district court ordered that Phillips and Barton lacked standing to challenge DOMA because state law resulted in the non-recognition of their marriage; any challenge to DOMA was moot in light of the Windsor decision; Phillips and Barton lacked standing to challenge Oklahoma’s non-recognition provision because Smith is not involved in recognition; and Oklahoma’s ban on same-sex marriage (Part A of SQ 711) violates the Equal Protection Clause. Smith appealed the decision regarding Part A and Barton and Phillips cross-appealed the conclusion that they lacked standing. The DOMA issues were not challenged.

Smith first contends that plaintiffs lack standing to challenge Part A of SQ 711 because they do not simultaneously contest a state statute to the same effect. However, the Tenth Circuit determined that a constitutional amendment would have the effect of superseding all previous statutes. The statute is not enforceable independent of SQ 711.

In addressing the merits of Smith’s appeal regarding Part A, the Tenth Circuit applied its reasoning from the Kitchen case. The Tenth Circuit opined that the Supreme Court’s dismissal in Baker v. Nelson is not controlling, plaintiffs seek to exercise a fundamental right to marry, and state justifications against same-sex marriage based on procreation fail to satisfy a strict scrutiny test. The Tenth Circuit first rejected Smith’s Baker arguments that lower courts are not free to reject summary dismissals, stating that her argument is undermined by the explicit language of the case creating the rule. Next, the Tenth Circuit evaluated her contention that children have an interest in being raised by their biological parents. The Tenth Circuit ruled that this contention is contradicted by statutes allowing adoption, egg and sperm donation, and other non-biological means for child-rearing. The Tenth Circuit noted that the state failed to raise arguments why same-sex marriage proposes a greater threat than other non-biological child-raising scenarios. Further, the Tenth Circuit stated that Oklahoma’s ban sweeps too broadly, because not all opposite-sex couples are able to procreate or are interested in procreation, and they are not denied the ability to marry.

As to the challenge to the non-recognition provision, the Tenth Circuit determined that Phillips and Barton lacked standing in this area because Smith is not a proper party. Smith submitted an affidavit to the effect that she is not able to recognize any marriages in her official capacity, and the affidavit is sufficient to establish that Smith is not a proper party regarding non-recognition. The Tenth Circuit sympathized with the plaintiffs, who have been litigating the issue for ten years, but suggested instead that if they attempted to file a joint tax return and were denied, they would be able to sue the Tax Commission regarding the denial.

The judgment of the district court was affirmed.

Tenth Circuit: Substantial Upward Variance from Sentencing Guidelines Justified by Several Factors

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lente on Friday, July 18, 2014.

Camille Lente consumed between 13 and 19 beers and decided to drive. She veered into oncoming traffic and caused a serious accident in which three people died and both drivers were seriously injured. Her advisory Guidelines range was from 46 to 57 months, but the trial judge sentenced her to 216 months. She appealed, and a divided panel of the Tenth Circuit remanded for more evidentiary findings regarding the variance. On remand, the district court heard testimony and victim impact statements, and concluded a sentence of 192 months’ imprisonment was appropriate. She again appealed, and the Tenth Circuit reversed and remanded a second time. The Tenth Circuit concluded the district court had procedurally erred by failing to address Lente’s argument that the sentence created unwarranted disparities.

On remand for the second time, the parties again supplemented the record with extensive additional evidence, including competing expert testimony. After discussing its sentencing discretion, identifying the sentencing factors listed in 18 U.S.C. § 3553(a), and accurately noting the undisputed Guidelines range of 46 to 57 months, the court held that a within-Guidelines sentence would be “woefully inadequate.” The court again imposed a 192-month sentence. Lente once again appealed.

Lente contended on appeal that the district court committed both procedural and substantive errors. She argued that the court committed procedural error by failing to consider the role her passenger played in the crash, and by failing to address her argument that multiple-fatality crashes should not be punished more harshly than single-fatality crashes. The Tenth Circuit, however, determined that the district court carefully considered and rejected those arguments, and instead of speaking to procedural errors, Lente’s real contention is with the substantive reasonableness of those considerations.

Addressing the substantial upward variance based on the multiple-fatality crash, the Tenth Circuit examined the legislative history of the Sentencing Guidelines and discussed that the Sentencing Commission has repeatedly expressed concern that the Guidelines do not adequately address involuntary manslaughter or multiple fatality situations. Although the Tenth Circuit agreed somewhat with Lente that the multiple deaths are more the result of chance than additional culpability, it agreed with the district court that multiple-fatality drunk driving crashes are not adequately addressed by the Guidelines. The Tenth Circuit determined that the district court acted within its discretion in imposing a significant upward variance in this instance.

Another factor considered by the district court in sentencing was Lente’s extreme recklessness. The Tenth Circuit agreed with the district court that Lente acted with extreme recklessness, citing as support Lente’s BAC of .21 two hours after the accident, the high traffic volume on the road, her excessive alcohol consumption, and a comparison of her conduct with similar offenses. The Tenth Circuit found no error in the district court’s conclusion.

The district court also concluded that Lente’s criminal history was significantly underrepresented in the Guidelines, since many of her previous convictions were for violations of tribal law and she was not assessed criminal history points for these. The district court noted that four of Lente’s prior convictions were for disorderly conduct after becoming intoxicated, which indicated a repeated willingness to abuse alcohol and engage in violent and destructive behavior. The Tenth Circuit found no error in the district court’s evaluation of Lente’s criminal history.

Further, Lente’s substance abuse and criminal behavior continued post-conviction. Recorded prison calls showed Lente repeatedly abused narcotics while incarcerated. She also indicated she planned to become intoxicated upon her release and had used alcohol at least once while in prison. She had two prison disciplinary sanctions for use of drugs or alcohol, as well as a number of other offenses. She was expelled from a drug education class and failed to apply to prison drug treatment programs. Her post-conviction conduct supports a conclusion that she was likely to reoffend. The district court’s conclusion that an upward variance was necessary to protect the public and deter criminal conduct was reasonable.

Finally, Lente argues that her sentence was disparate from other similar offenders. Although Lente cited several cases in support of her argument, the Tenth Circuit distinguished her case, noting that the cases she cited generally involved fewer BACs and fewer fatalities, and the cases with more fatalities involved different circumstances.

The Tenth Circuit affirmed the district court’s sentence.

Tenth Circuit: Unpublished Opinions, 7/21/2014

On Monday, July 21, 2014, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Brown v. Berkebile

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Court of Appeals: Codefendant’s Guilty Plea Cannot Be Used as Evidence of Defendant’s Guilt

The Colorado Court of Appeals issued its opinion in People v. Rios on Thursday, July 17, 2014.

Second-Degree Murder—First-Degree Assault—Jury Instructions—Plea Agreement—Refusal to Testify—Use of Physical Force—Combat-by-Agreement—Self-Defense.

A fight between rival gangs resulted in the death of a 16-year-old (victim) after Lakiesha Vigil, a member of defendant’s gang, drove her car into a crowd of people who had moved their fight to a driveway. She hit the victim, pinning his upper torso against the wall. Vigil then drove the car out of the driveway. It was unclear whether defendant and/or defendant’s cousin, Anthony Quintana, hit the victim with a bat a few times before getting into Vigil’s vehicle. The victim died at the hospital several hours after the incident. Defendant was convicted of second-degree murder and first-degree assault.

On appeal, defendant argued that the trial court erred in failing to instruct the jury not to consider Quintana’s refusal to testify as evidence of his guilt, and erred in informing the jury about Quintana’s plea agreement. Quintana had entered into a plea agreement whereby he agreed to testify against defendant. However, when called to testify against defendant, Quintana refused to testify. The trial court thereafter erred by instructing the jury regarding Quintana’s guilty plea, because it may have given rise to an impermissible inference of defendant’s guilt, which was not cured by any limiting language. Further, this error was not harmless beyond a reasonable doubt. The Court of Appeals reversed defendant’s convictions, and the case was remanded for a new trial.

Defendant also argued that the trial court erred in instructing the jury on the use of physical force as a self-defense. The trial court erred in instructing the jury on the provocation exception to self-defense, because the evidence did not warrant giving these instructions. Accordingly, on retrial, if the same or similar evidence is presented, the trial court should not instruct the jury on the provocation exception to self defense.

Finally, the court’s combat-by-agreement instructions failed to instruct the jury that the prosecution had the burden of proving beyond a reasonable doubt mutual combat has been established. If this error arises on retrial, it also must be corrected.

Summary and full case available here.

Colorado Court of Appeals: Attorney Fee Award Erroneous when Underlying Claim Was to Recover Judgment

The Colorado Court of Appeals issued its opinion in Castro v. Lintz on Thursday, July 17, 2014.

Workers’ Compensation—Tort—Piercing the Corporate Veil—Enforcement of Judgment—Breach of Duty to Creditor—Dismissal—Attorney Fees—CRS § 13-17-201.

In 2010, Castro was employed by Lintz Construction, Inc. He was injured during the course of his employment when he fell from the roof of a building while shoveling snow. Castro filed a workers’ compensation claim against both Lintz Construction and Jonathan Lintz personally. The administrative law judge (ALJ) ordered Lintz Construction to pay Castro benefits in the amount of $4,536.76. The district court later granted Lintz’s motion to dismiss Castro’s claims to enforce the judgment against Lintz on the ground that the claims were barred by the doctrine of claim preclusion, awarding attorney fees to Lintz. The Colorado Court of Appeals reversed the district court’s order.

On appeal, Castro contended that the district court erred as a matter of law in awarding Lintz attorney fees under CRS § 13-17-201. An award of attorney fees under § 13-17-201 is mandatory when a trial court dismisses a tort action under CRCP 12(b). Castro’s claims for disregarding the corporate form (piercing the corporate veil) to recover the money he had already been awarded in the workers’ compensation claim and enforcement of his judgment against Lintz Construction do not sound in tort. Although Castro’s breach of duty to creditor was a tort, the essence of this claim did not sound in tort because Castro sought to recover only the benefits he was awarded. Therefore, the district court erred in awarding Lintz his attorney fees under CRS § 13-17-201.

Summary and full case available here.