December 11, 2017

Colorado Court of Appeals: Roaring Fork Transportation Authority Possessed Eminent Domain Power by Statute

The Colorado Court of Appeals issued its opinion in Sos v. Roaring Fork Transportation Authority on Thursday, November 16, 2017.

Eminent Domain—Inverse Condemnation Claim—Compensable Damages—Restoration Damages—Diminution in Value.

Sos owns property on which he owns and operates a tire business. The Roaring Fork Transportation Authority (RFTA) built a bus station on the property north of and adjacent to his property. Before RFTA began construction, an earthen embankment rested on the property line between Sos’s and RFTA’s properties. Sos regularly sold tires and other items on the embankment and, with the previous owner’s permission, on the northern property. As part of its construction, RFTA removed the embankment and built a wall on its property, and then restored the embankment, which the wall relies on for lateral support. Sos then wanted to remove the embankment to facilitate his business. He brought an inverse condemnation claim against RFTA because the bus station wall relies on his property for lateral support. RFTA moved for summary judgment and Sos moved for partial summary judgment, regarding whether a compensable taking or damages had occurred. The district court denied RFTA’s motion and granted Sos’s motion, determining that the force the bus station wall permanently imposed on the embankment constituted compensable damage under article II, section 15 of the Colorado Constitution, and that the proper measure of damages was restoration damages rather than diminution in value.

On appeal, RFTA argued that the district court erred in determining that RFTA possessed the power of eminent domain because the General Assembly had not granted RFTA this power expressly or by clear implication, and because it does not possess the power of eminent domain, Sos cannot establish an inverse condemnation claim. Pursuant to the plain language of C.R.S. § 43-4-604, RFTA has the power of eminent domain by clear implication.

RFTA next asserted that the district court erred in concluding that RFTA’s bus station wall caused compensable damage because the wall’s construction did not substantially diminish the value of Sos’s property or substantially change Sos’s use of his property. The district court found, with record support, that RFTA authorized the building of the bus station wall and that RFTA incorporated the embankment’s support into the bus station wall’s design and construction. The court, therefore, properly determined that the imposition of force on Sos’s embankment was the natural consequence of RFTA’s intentional construction of the bus station wall. Further, the record, including RFTA’s own expert opinions, supported the district court’s finding that the bus station wall imposed a new force on Sos’s embankment to such a degree that an engineered remedy was now required before the embankment could be excavated. The district court properly determined that RFTA damaged Sos’s property.

RFTA next contended that the district court erred in ruling that restoration costs rather than diminution of value was the proper measure of damages. The record shows that the diminution in value of Sos’s property after RFTA built the bus station was de minimis. But RFTA’s construction substantially limited Sos’s use and enjoyment of the embankment area. Therefore, the district court properly determined Sos’s damages under the measure of restoration costs.

RFTA further argued that the district court erred in allowing evidence of Sos’s business and personal uses for his property because such interests are non-compensable in condemnation cases. RFTA contended that Sos presented no admissible evidence regarding restoration costs or supporting the damages award. The Court of Appeals concluded that the district court’s damages award is supported by competent record evidence.

RFTA also argued that the district court erred in rejecting its proposed instructions regarding diminution of value being the proper measure of damages. The district court’s decision was supported by competent evidence and did not cause the commissioners to be inaccurately instructed on the law.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Eminent Domain Practice: The Essential Guide to Condemnation Law and Practice in Colorado

Colorado Eminent Domain Practice, the essential guide to condemnation law and practice in Colorado, will be updated and released this fall. Authored by Leslie Fields, a nationally renowned eminent domain practitioner who retired from Faegre Baker Daniels after 33 years of practice, the updated treatise includes insights into new and important eminent domain case law. On November 16th Ms. Fields will join with current FaegreBD partners, Jack Sperber, Brandee Caswell, and Sarah Kellner, as well as other eminent domain experts, to teach a course entitled Colorado Eminent Domain Practice: Books in Action. The course will draw from the key concepts and developments highlighted in the updated text.

Among the many cases featured in the updated treatise will be last year’s Colorado Court of Appeals decision in Town of Silverthorne v. Lutz, 370 P.3d 368 (Colo. App. 2016). In Lutz, the court upheld the trial court’s exclusion of evidence that the town had received funds from the Great Outdoors Colorado Program (GOCO) for the recreational trail project necessitating the taking of the Lutz property. Even though a state constitutional provision barred GOCO funds from being used to acquire property by condemnation, the court held that evidence of the special funding was not relevant to the town’s authority to condemn the easements under long established case law. The court further reasoned that a condemnation action is a special statutory proceeding that must be conducted according to statutory procedures, and the parties may not raise issues, such as project funding, which would change the character of a condemnation action. The court also stated that while the constitution prohibits GOCO funds from being used to pay the just compensation for condemned property, it does not preclude the use of the funds for other aspects of the project. Therefore, evidence of GOCO funding was properly excluded.

Finally, the Lutz court also rejected the property owners’ argument that evidence of GOCO funding was admissible to show that the town acted in bad faith in deciding that their property was necessary for construction of the trail project. For more on bad faith necessity challenges, as well as the other issues raised in Lutz, refer to the updated Colorado Eminent Domain Practice by Leslie Fields, and register for Thursday’s program using the links below.

CLE Program: Colorado Eminent Domain Practice

This CLE presentation will occur on Thursday, November 16, 2017, at the CLE Large Classroom (1900 Grant St., 3rd Floor) from 9:00 a.m. to 3:15 p.m. Register for the live program here and the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — CD Homestudy • Video OnDemandMP3 Audio

Colorado Court of Appeals: District Court Correctly Characterized Water Storage Plan as Frustrated Plan in Condemnation Action

The Colorado Court of Appeals issued its opinion in Board of County Commissioners of County of Weld v. DPG Farms on Thursday, June 15, 2017.

Condemnation—Highest and Best Use—Lost Income—Costs.

The Board of County Commissioners of Weld County (the County) filed a petition in condemnation to extend a public road over 19 acres of DPG Farms, LLC’s 760-acre property (the property). When condemnation proceedings were initiated, the property was used primarily for agricultural and recreational purposes. The parties stipulated to the County’s immediate possession of the 19 acres and proceeded to a valuation trial. The dispute centered on the highest and best use of 280 acres that contained gravel deposits. DPG’s experts testified about the highest and best use of the property. The district court determined, as a matter of law, that the evidence was too speculative to support a finding that water storage was the highest and best use of the relevant area (Cell C); instead, it determined that the highest and best use of those acres was gravel mining, but not water storage as well. The jury awarded DPG $183,795 in damages for the condemned property and nothing for the residue. DPG then requested costs. The district court rejected a substantial portion of the costs on grounds that they were disproportionate to DPG’s success and that certain expert evidence had been excluded.

On appeal, DPG contended that the district court erred in rejecting water storage as the highest and best use of certain portions of the property. The Court of Appeals reviewed the evidence that the district court’s determination was based on and concluded that the district court did not err in determining, as a matter of law, that the evidence was too speculative to support a jury finding that water storage was the highest and best use of Cell C.

DPG also argued that the trial court erred in excluding evidence of lost income, arguing that it was admissible pursuant to an income capitalization approach to valuing the property. DPG’s evidence of a potential income stream was admissible not as the measure of its damages but rather as a factor that could inform the fair market value of the property. And both the appraiser and the mining expert testified that the potential income stream from mining informed their fair market valuations. Because the lost income evidence, on its own, did not reflect the proper measure of damages, the district court correctly excluded it.

Finally, because the income valuation evidence presented by DPG’s experts was properly excluded, the district court did not abuse its discretion in limiting DPG’s award of costs on this basis.

The judgment and cost order were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Condemnation Decision Must Consider Each Landowner’s Taken Land and Damages

The Colorado Supreme Court issued its opinion in Department of Transportation v. Amerco Real Estate Co. on Monday, September 26, 2016.

Administrative Law and Procedure—Delegation of Authority—Condemnation Proceedings.

Amerco Real Estate Co. (Amerco) and U-Haul petitioned for relief pursuant to CAR 21 from an order of the district court denying their request to dismiss the Colorado transportation department’s Petition in Condemnation and instead granting the department’s motion for immediate possession of the subject property, which is owned by Amerco and occupied by U-Haul. The district court rejected U-Haul’s assertion that the transportation commission’s authorization for the department to condemn property for highway purposes, in the absence of any resolution by the commission approving the acquisition of the particular property to be taken, at a public meeting, amounted to an unlawful delegation of quasi-legislative power. The Supreme Court issued its rule to show cause and here made the rule absolute, remanding to the district court with orders to dismiss the department’s Petition in Condemnation. The Court held that because the commission’s enabling legislation contemplates that it alone must decide whether the public interest or convenience will be served by a proposed alteration of a state highway, and that decision must be made in consideration of, among other things, the portions of land of each landowner to be taken for that purpose and an estimate of the damages and benefits accruing to each landowner whose land may be affected thereby, the commission’s general authorization, to the extent it purports to delegate to the department the choice of particular properties to be taken for such a highway project and the manner of their taking, constituted an unlawful delegation of its statutorily imposed obligation.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Evidence of Project Funds Inadmissible in Condemnation Proceeding

The Colorado Court of Appeals issued its opinion in Town of Silverthorne v. Lutz on Thursday, February 11, 2016.

Matthew Lutz and Edward Lutz (landowners) own a stretch of land over which the Town of Silverthorne wanted to build a trail. The town applied for and received funds from the Great Outdoors Colorado Program (GOCO) to use in construction of the trail. Landowners objected to having a portion of the trail built on their land. The town offered landowners $6,000 to purchase an easement, but landowners did not respond. The town next offered $75,000 for two easements, but landowners again did not respond. The town then filed a condemnation action under its eminent domain powers, and the matter proceeded to an immediate possession hearing and subsequent valuation trial. The district court granted the town’s motion for immediate possession and the landowners were compensated according to the jury’s valuation.

On appeal, the town initially argued the landowners waived any defense by failing to challenge the condemnation proceedings or make a counteroffer. The court of appeals found no error in the district court’s allowance for the landowners to reply to the condemnation proceedings out of time. The court noted, “Technically, there is no need to file an answer in a condemnation case, but it is good practice to do so.” Next, the court addressed the landowners’ assertion that the town was barred from exercising eminent domain power because of its receipt of GOCO funds, and the district court erred in granting the town’s motion in limine to exclude evidence of the source of funds. The court found it was bound by the Colorado Supreme Court’s decision in Pub. Serv. Co. v. City of Loveland, 79 Colo. 216, 233, 245 P. 493, 500-01 (1926), to exclude evidence of the source of funding for the eminent domain action, finding that the source of funds requires analysis of corporate finance which is wholly separate from a home rule city’s eminent domain authority. The court found no error in the district court’s grant of the town’s motion in limine to exclude evidence of the source of funds.

Landowners also argued the town acted in bad faith by planning the development of its trail in such a way as to receive all GOCO funds before commencing the eminent domain action. The landowners argue this is a jurisdictional challenge to the town’s condemnation suit. The court found several flaws with the landowners’ arguments that the town failed to act in good faith, and again affirmed the district court’s decision to exclude evidence of the GOCO funds. The court also rejected landowners’ contention that the district court erred in denying their motion for attorney fees.

The court of appeals affirmed the district court.

Colorado Supreme Court: Judicial Evidentiary Rulings Control in Eminent Domain Valuation Hearings

The Colorado Supreme Court issued its opinion in Regional Transportation District v. 750 West 48th Ave., LLC on Monday, September 14, 2015.

Eminent Domain—Commissioner Proceedings—Duties of Trial Court.

The Supreme Court held that judicial evidentiary rulings control in eminent domain valuation hearings. A valuation commission is bound by the supervising court’s evidentiary rulings. Accordingly, the Court affirmed the portion of the court of appeals’ judgment that approved of the supervising judge’s instruction that the commission disregard previously admitted evidence as irrelevant. The Court reversed the portion of the judgment that permitted the commission to alter the judge’s in limine evidentiary ruling.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Meaningful Remedy May Be Available to Landowners so Summary Judgment Inappropriate

The Colorado Court of Appeals issued its opinion in Sinclair Transportation Co. v. Sandberg on Thursday, June 5, 2014.

Easement — Partial Summary Judgment.

Sinclair Pipeline Company (Sinclair) operates a pipeline system that transports petroleum products from Wyoming to Denver and uses an easement that passes through defendants’ (landowners) properties. The easement was created by agreement in 1963 and provided its owner and “its successors and assigns” the right to “construct, maintain, inspect, operate, protect, repair, replace, change the size of, and remove” a six-inch pipeline across landowners’ property (original pipeline).

In 2006, Sinclair approached landowners to propose amending the easement to allow it to build a ten-inch pipeline on the property (new pipeline). Landowners declined, and Sinclair sought the right through a condemnation proceeding. The district court determined Sinclair had condemnation authority. In 2007, while the case was on appeal, Sinclair installed the new pipeline but did not put it to use. Ultimately, the Supreme Court determined Sinclair did not have statutory condemnation authority.

Sinclair then abandoned the condemnation proceeding and instituted this declaratory judgment action under CRCP 57 and CRS § 13-51-106 to determine its rights under the easement and prevent landowners from removing the new pipeline. The district court dismissed the condemnation action and addressed all other claims in this case.

Sinclair moved for partial summary judgment and the district court ruled, as a matter of law, that Sinclair had the right to treat the new pipeline as a replacement of the original one, as long as it removed the original one. The partial summary judgment was certified as a final judgment under CRCP 54(b) for purposes of appeal.

Sinclair removed the original pipeline and began using the new one. Four months after the summary judgment order was issued and Sinclair had begun using the new pipeline, landowners moved to stay the order, which the district court denied because Sinclair had “already fully executed” it and there “was nothing left . . . to stay.”

On appeal, landowners argued Sinclair lacked standing because factual disputes existed as to whether Sinclair was a successor in interest to the original owner of the easement, and an easement of the type involved in this case could not be assigned. The Court of Appeals disagreed, finding that the evidence presented by Sinclair was sufficient to prove its successorship interest in the easement.

The Court rejected landowners’ argument that Sinclair lacked standing, because ownership interests in this type of easement cannot be assigned. The language of the easement itself was a conveyance to Old Sinclair and its “successors and assigns.”

Landowners argued that partial summary judgment was inappropriate because any right to replace the pipeline was subject to numerous conditions as to which factual disputes exist and was defeated by Sinclair’s non-compliance with other parts of the agreement. The Court disagreed, finding that the reasonable expectation of the parties to such an agreement would be that the new pipeline could be put in before the old one being removed so as not to disrupt service.

Landowners further contended that Sinclair abandoned the contract right to the easement because it acted as though that right had expired when it sought to use condemnation authority to install the new pipeline. The Court disagreed. Sinclair’s condemnation action was an attempt to install the new pipeline and not remove the old pipeline after landowners had denied them the permission to do so. The order was affirmed.

Summary and full case available here.

Tenth Circuit: Tax Court Did Not Err in Concluding Highest and Best Use for Property Was Agriculture Before Conservation Easement Was Granted

The Tenth Circuit Court of Appeals published its opinion in Esgar Corporation v. Commissioner of Internal Revenue on Friday, March 7, 2014.

On December 17, 2004, the Taxpayers (Esgar Corporation, George and Georgetta Tempel, and Delmar and Patricia Holmes) each donated a conservation easement over their respective property to the Greenlands Reserve. The donations granted a perpetual easement over the properties, giving Greenlands the right to preserve the natural condition of the land and protect its biological, ecological, and environmental characteristics.

The Taxpayers claimed charitable deductions on their 2004, 2005, and 2006 tax returns for “qualified conservation contributions” under I.R.C. §170(f)(3)(B)(iii). The Taxpayers engaged William Milenski to appraise their contributions. Mr. Milenski concluded that, had the conservation easements not been granted, the properties would have realized their greatest potential as a gravel mining operation. Based on the value of that relinquished use, Mr. Milenski valued each of the Taxpayers’ conservation easements. Also as a result of their donations, the Taxpayers received transferable tax credits from the State of Colorado. Within two weeks of receiving the credits, the Taxpayers sold portions of their credits to third parties.

After an audit of the Taxpayers’ 2004, 2005, and 2006 returns, the Commissioner determined that the Taxpayers’ conservation easements were in fact valueless and that the sales proceeds from their state tax credits should be reported as ordinary income. The Commissioner issued notices of deficiency for the 2004, 2005, and 2006 tax years.

A trial was held where the only issue was the highest and best use of  property before the easement. The Commissioner argued it was agriculture and the Taxpayers argued it was gravel mining. The Tax Court sided with the Commissioner and this appeal followed.

The Taxpayers first argued that the Tax Court erred by placing on them the burden of proving the before value of their properties. Generally, deductions are a matter of legislative grace, and a taxpayer bears the burden of proving entitlement to any claimed deduction. However, Section 7491(a) of the I.R.C. shifts the burden of proof to the Commissioner on any factual issue that the taxpayer supports with credible evidence. The Taxpayers argued that they introduced credible evidence that gravel mining was their properties’ highest and best use, thus shifting the burden to the Commissioner. However, the Tenth Circuit held that Section 7491 does not require burden shift when, as here, both parties produced evidence and the evidence weighed in the Commissioner’s favor.

The Taxpayers also argued that the Tax Court erred by drawing an adverse factual inference against them. The Tax Court stated: “Neither [the Taxpayers] nor their experts provided us with an estimate of remaining aggregate. [The Taxpayers] own the land on which the Midwestern Farms Pit is situated and chose not to provide information on the amount of aggregate remaining. Their failure to introduce evidence “which if true, would be favorable to . . . [them], gives rise to the presumption that if produced it would be unfavorable.”

The Taxpayers argued that it was impermissible to use this “missing evidence” inference against them, given that the burden of proof rested with the Commissioner. The Tenth Circuit disagreed. It is the function of the Tax Court to draw appropriate inferences, and choose between conflicting inferences in finding the facts of a case.

Next, the Taxpayers argued that the Tax Court applied erroneous legal standards to value their conservation easements. They made two arguments: (1) that the Tax Court erred by adopting the properties’ current use as its highest and best use rather than taking a “development-based approach,” and (2) that the Tax Court erred by citing eminent domain principles in reaching its valuation determination.

Valuation does not depend on whether the owner actually has put the property to its highest and best use. Rather, courts must focus on the highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future. After taking into account the properties’ current use and the fact that the likelihood of development was remote, the Tax Court certainly could find that the properties’ current use, agriculture, was its highest and best use. The Tax Court applied the correct highest and best use standard, looking for the use that was most reasonably probable in the reasonably near future, and it did not clearly err by concluding that use was agriculture.

The Taxpayers argued that eminent domain principles—standards used to value property to determine just compensation—were inapplicable when valuing conservation easements. Just compensation valuation requires an identical finding, i.e., the “highest and most profitable use” for which the property was suited before the taking. The objective assessment that the Treasury Regulations require do not materially differ from those used to determine the highest and best use of property for just compensation valuation.

Finally, the Taxpayers argued that their state tax credits, which they held for about two weeks, were long-term capital assets. However, the Tenth Circuit held that the Tax Court correctly concluded that the Taxpayers had no property rights in a conservation easement contribution State tax credit until the donation was complete and the credits were granted. The credits never were, nor did they become, part of the Taxpayers’ real property rights. Instead, the Taxpayers’ holding period in their credits began at the time the credits were granted and ended when petitioners sold them. Since petitioners sold their State tax credits in the same month in which they received them, the capital gains from the sale of the credits were short term.

AFFIRMED.

Colorado Court of Appeals: Property Valuation Commissioner Need Not Be Held to Judge’s Standard of Appearance of Impropriety

The Colorado Court of Appeals issued its opinion in Regional Transportation District v. 750 West 48th Ave LLC on Thursday, December 5, 2013.

Eminent Domain—Just Compensation—Evidentiary and Instructional Rulings—Commissioner Standards.

In April 2011, Regional Transportation District (RTD) filed a petition in condemnation and acquired from Landowner approximately 1.6 acres for RTD’s FasTracks Gold Line light rail project. It was agreed that RTD would take possession in exchange for a deposit of $1.8 million. The only issue at trial was determining the amount owed to Landowner for the condemned property. Landowner elected to have a commission trial, and the trial court appointed a commission of three freeholders to determine the property’s reasonable market value. RTD appealed pretrial and instructional rulings by the trial court and certain evidentiary rulings of the commission.

RTD contended the trial court erred in not disqualifying Kittie Hook, a real estate broker with Cassidy Turley, as a commissioner because it did not employ the “appearance of impropriety” disqualification standard applicable to judges. The court denied the request. CRS § 13-1-105(1) requires disqualification if the court determines that any of the proposed commissioners is not impartial. The trial court held that the applicable standard was not an “appearance of partiality,” but whether the commissioner was in fact interested and partial. The Court of Appeals agreed, concluding that the plain language of the statute required RTD to demonstrate that Hook was interested and partial. Because no such showing was made, it was not an abuse of discretion to not disqualify Hook.

RTD also argued that trial court erred by instructing the commission not to consider evidence concerning amenities at the property leased by Landowner’s lessee after condemnation. The Court found no abuse of discretion. The trial court’s instruction on the relevancy of evidence constituted a legal issue. Because CRS § 38-1-105(1) requires the trial court to instruct the commission on the applicable law, the court properly instructed the commission how to determine the reasonable value of the property.

RTD argued that the commission erred in reversing the trial court’s motion in limine ruling to admit an expert witness’s testimony as to the average value of industrial properties under the income approach. The Court disagreed. The Court held that the commissioners can modify the court’s determination of a motion in limine after hearing further evidence, and that the commission’s ruling was not an abuse of discretion.

Landowner requested attorney fees in defending the appeal. A landowner is entitled to recover its attorney fees where the award by the commission equals or exceeds 130% of the last written offer given to the property owner before the filing of the condemnation action. That was the case here, so the trial court awarded Landowner attorney fees. CAR 39.5 provides for an award of appellate attorney fees when there is a legal basis for such an award. Landowner therefore was entitled to appellate attorney fees and remanded for a determination of the amount. The judgment otherwise was affirmed.

Summary and full case available here.

SB 13-021: Reaffirming Grant of Power of Eminent Domain to Pipeline Companies Conveying Petroleum Products

On Wednesday, January 9, 2013, Sen. Mary Hodge introduced SB 13-021 – Concerning Technical Revisions to Article 5 of Title 38, Colorado Revised Statutes, that Reaffirm that the Provisions of that Article Relating to Rights-of-Way for Transmission Companies Apply to Pipeline Companies Operating Pipelines that Convey Petroleum and Hydrocarbon Products. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Article 5 of title 38, C.R.S., governs rights-of-way for transmission companies and grants the right of eminent domain to any domestic or foreign electric light power, gas, or pipeline company authorized to do business in Colorado for the purpose of obtaining rights-of-way for wires, pipes, regulator stations, substations, and systems needed to conduct its business. Until May 2012, it was commonly understood that article 5 applied to and granted the right of eminent domain to all pipeline companies authorized to do business in Colorado, including companies operating pipelines that convey oil, gasoline, or other petroleum products.

In May 2012, the Colorado Supreme Court held that article 5 grants the right of eminent domain only for acquisition of rights-of-way for pipelines involved in delivering electric power or natural gas and not for pipelines that convey oil, gasoline, or other petroleum products. The bill reaffirms that article 5 grants the power of eminent domain to pipeline companies operating pipelines that convey petroleum products by defining the term “pipeline company” to include such companies and by making additional clarifying technical revisions. Assigned to the Local Government Committee.

Tenth Circuit: Opinions, 4/29/11

The Tenth Circuit on Friday issued two published opinions and nine unpublished opinions.

Published

In United States v. Harrell, the Court affirmed the district court’s decision. In eminent domain proceedings, Petitioners claimed they were the “prevailing party,” as defined by the Equal Access to Justice Act (EAJA). The district court disagreed even though Petitioners were awarded $3.8 million, and denied their request for $2 million in attorney fees. The Court agreed with the district court by reviewing the issue under the necessary strict construction of the EAJA; the statute must be strictly construed when considering “under what circumstances Congress was willing to require the government to pay the attorney’s fees of other parties” under the “mathematical prevailing party standard” set out in the EAJA. The Court held that the district court’s “$3.8 million judgment in favor of appellants was closer to the highest valuation testified to by the government’s expert, $186,500, than to the highest valuation testified to by [Petitioners]’ expert, $33 million, and that [Petitioners] therefore were not the prevailing party” entitled to attorney fees.

In Efagene v. Holder, Jr., the Court reversed the Board of Immigration Appeals’ (BIA) decision. Petitioner, a citizen of Nigeria, has been a lawful United States resident since 1991. In 2005, Petitioner pleaded guilty to misdemeanor sexual conduct-no consent and was sentenced to 364 days’ imprisonment, and ordered to register as a sex offender for the next ten years. In 2007, Petitioner failed to meet a registration deadline and was arrested. He pleaded guilty to a misdemeanor failure-to-register offense, and was sentenced to thirty days’ imprisonment and a $100 fine. He now petitions for review of a final order of removal issued by the BIA, arguing that “the BIA erred in concluding that the Colorado misdemeanor offense of failure to register as a sex offender constitutes a crime involving moral turpitude under the Immigration and Nationality Act.” The Court agreed, refusing to find Petitioner’s failure to register as a sex offender as a crime involving moral turpitude. “Colorado’s own courts have described the sex offender registry statute at issue here as regulatory in nature. . . . While there is no question a sex offense itself often involves serious harm to the victim and constitutes a depraved act, an individual can be convicted of failure to register if he, for example, changes residences and notifies law enforcement six rather than five business days later.” Failure to register within the appropriate time does not rise to the level of moral turpitude, but rather is a violation of a regulatory requirement designed to aid law enforcement.

Unpublished

Henshaw v. Wayne County

Johnson v. Kansas Parole Board

United States v. Thompson

United States v. Chacon

United States v. Garcia-Ruiz

United States v. Roe

United State v. Lockhart

United States v. Smith

Novell, Inc. v. Vigilant Ins. Co.

Colorado Court of Appeals: District Possessed the Power to Condemn an Absolute Fee Interest in Land, Including Mineral, Oil, and Gas Interests

The Colorado Court of Appeals issued its opinion in Steamboat Lake Water and Sanitation District v. Halvorson on January 6, 2011.

Eminent Domain—Condemnation—Appeal—Bond—Defeasible Fee Interest—Remainder Interest—Attorney Fees.

Respondents Vance and Sharon Halvorson challenged the trial court’s order granting title to the Steamboat Lake Water and Sanitation District (District) pursuant to its eminent domain powers. The order was affirmed.

The Halvorsons owned certain real property, located within the District’s boundaries and known as Lot 78. The trial court granted title to the District pursuant to its eminent domain powers, and described the title as an absolute fee “free of all rights of reversion or reversionary interests, including but not limited to the possibility of reverter and rights of entry for conditions broken.”

The District argued that the Halvorsons’ appeal should be dismissed because they accepted the benefits of the judgment by withdrawing the $90,000 bond. A party is prohibited from both accepting the benefits of a judgment and prosecuting an appeal, but not when the adjudication of that appeal would not put in issue the party’s right to the entirety of the benefit he has accepted. Here, the withdrawal of the bond precluded the Halvorsons from challenging the title description’s failure to exclude gas, oil, and mineral interests. However, they were permitted to appeal whether the interest passed was a defeasible or absolute fee.

The Halvorsons argued that the court’s description of the title is erroneous because the District was empowered only to condemn a defeasible fee interest that excluded mineral, oil, and gas interests. The Halvorsons contended that they still own a remainder interest in their land, which consists of the mineral, oil, and gas interests, and either a reversionary interest or a right of entry for condition broken if the District ever abandons the property or attempts to sell it to a private party. The District possessed the power to condemn an absolute fee interest in land. Because the District explicitly sought, and paid for, an absolute fee interest in Lot 78, the trial court did not err in so describing the District’s title.

The Halvorsons also argued that the court erred in refusing to award attorney fees pursuant to CRS § 38-1-122. However, the District was authorized by law to acquire the property, and the Halvorsons did not prove that the award equaled or exceeded 130 percent of the condemnor’s last written offer to purchase the property or interest. The order was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on January 6, 2011, can be found here.