October 23, 2017

Top Ten Programs and Homestudies of 2016: The Best of the Rest

The year is drawing to a close, which means that the compliance period is ending for a third of Colorado’s attorneys. Still missing some credits? Don’t worry, CBA-CLE has got you covered.

Today on Legal Connection we are featuring the Best of the Rest: the top programs and homestudies in the areas of law not previously covered, including construction law, disability law, agricultural law, water law, natural resources law, immigration law, and marijuana law. Although these practice areas are varied, the homestudies and programs featured below are top-notch. For practitioners in these areas of law, visit cle.cobar.org/Practice-Area to find more programs and homestudies in your area of practice, and visit cle.cobar.org/Books to search our selection of books.

Construction Law — Residential Construction Defect Law 2016: Intermediate to Advanced Class
The program will highlight significant construction defect liability, damages and insurance developments occurring over the past two years and described in the Fifth Edition of Residential Construction Law in Colorado (CLE in Colo., 2015) written by Ronald M. Sandgrund, Scott F. Sullan and Leslie A. Tuft. A copy of the book is included as part of the course materials. No written materials other than a list of cases and statutes discussed will be supplied. This program is an advance program and is not intended to provide a general overview of construction defect law or practice. Each Homestudy includes a PDF copy of the CLE book, Residential Construction Law in Colorado, 5th Edition. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

Immigration Law — Immigration Law 2016
Attend this program and you will receive practical training for representing individuals in immigration proceedings, including juveniles and survivors seeking asylum and other humanitarian relief. Topics covered include: Immigration Law 101, Special Immigrant Juvenile Status, U Visas, T Visas, and VAWA, Cancellation of Removal and Trial Advocacy Skills in Immigration Court, Asylum Law, and Model Asylum Hearing. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits.

Water Law — Water Law 101 in 2016
This is the eighth in a series of courses related to Colorado water law and administration. This particular course will introduce you to the basic legal framework governing Colorado water law, rights, and administration as of 2016. You will become familiar with court cases, matters and issues critical to your understanding of water and water law in Colorado. You will learn about Colorado’s different types of water rights, how they are administered, the role of the State and Division Engineers, and what is required for changes of water rights. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits.

Environmental Law — Colorado’s Future Energy Economy: Legal Landscape
Attend this program and hear perspectives of officials and leaders at national and state and federal government levels on the direction of Colorado’s energy industry. Plus, gain invaluable insights on such from environmentalists, the energy industry, academia, and private firm practitioners. Take advantage of this unique opportunity to learn about the latest developments in the legal landscape behind Colorado’s energy and natural resources industries. Attend this program and personally unravel the issues with the experts. AND, at the same time, you will sharpen your practice skills and expand your knowledge to better serve your clients! Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 7 general credits, including 1 ethics credit.

Natural Resources Law — Oil, Gas, and Mining: Current Legal Issues
This Oil, Gas and Mining Law program is the one to attend to get up to speed on energy issues currently affecting Colorado and the West. You will leave this seminar with a better understanding of the latest regarding pertinent litigation, regulations and solutions for quieting title, financing, and distressed companies. Taught by experts, this program will provide you with an opportunity to network with colleagues and experts, and to catch up on hot topics in the energy law arena. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 9 general credits, including 1 ethics credit.

Disability Law — Social Security Disability: Advanced Practice
Your distinguished panel of Judges, ODAR and Colorado Disability Determination Services Officials, a vocational expert, and seasoned private firm SSDI practitioners will provide you with the latest information on: Changes, Statistics, and Findings of the Colorado Disability Determination Services Office, What’s Happening in Region 8 and at Headquarters – Office of Disability Adjudication and Review?, State of the Denver Regional Office of Disability Adjudication and Review, Attorney Fee Agreements and Fee Petitions, How-to’s of Vocational Expert Examination, Perspectives of the Appeals Council, Appeals Council and Federal District Court Arguments, Case Law and Rulings, and How to File in Federal Court and Win! Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 8 general credits.

Agricultural Law — Rural Land Transactions: Contract Issues
Whether you represent the buyer or seller of ranch land, cattle, timber or recreational ranches, farms or other rural lands, this program is for you! Attend and your faculty of seasoned real estate attorneys and brokers will guide you through the nuances of rural land transactions, and help you avoid mistakes and potential pitfalls. You will receive straightforward guidance on Buyer Entity Pros and Cons, Federal Grazing Permits, Water, Mineral and Wind Rights, Growing Crops, and much more. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 4 general credits.

Marijuana Law — Enforcing Cannabis Contracts, Including the Use of Arbitration in the Cannabis Industry
A key fear in the cannabis industry is the extent to which cannabis-related contracts are enforceable. This goes beyond contracts for the sale of cannabis itself and may include any number of legal instruments that touch a cannabis business. Although a number of recent court decisions in the Colorado state and federal courts indicate a trend toward the enforcement of cannabis-related contracts, and these cases will be discussed, many doubts remain regarding the enforceability of cannabis-related contracts. Arbitration provides a unique forum for the resolution of cannabis-related disputes that may provide greater legal certainty and enforceability. This CLE presentation covers the nuts and bolts of arbitration law relevant to the enforcement of purportedly illegal contracts, and goes beyond to identify techniques counsel should consider when drafting arbitration clauses for cannabis businesses and their partners. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 3 general credits.

SB 13-019: Promoting Water Conservation Measures

On Wednesday, January 9, 2013, Sen. Gail Schwartz introduced SB 13-019 – Concerning the Promotion of Water Conservation Measures. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill declares that increasing water use efficiency by appropriators promotes the maximum utilization of Colorado’s water resources and is in the public interest.

The amount of water that currently can be changed to a new type or place of use is limited by the amount of water that was historically consumed by the original type and place of use. Therefore, a water user has no incentive to reduce the amount of water diverted. Current law encourages the conservation of water in some contexts by eliminating from the determination of abandonment the period during which water is conserved under a variety of government-sponsored programs. However, in these contexts, the water conserved through a reduction in the application of the water to a beneficial use results in a reduction of consumptive use. The bill directs the water judge to disregard the decrease in use of water from such programs in its determinations of historical consumptive use in change of water right cases and adds to the list a decrease in water use to provide for compact compliance. The bill defines “conserved water” and directs water judges to allow a change of water right for conserved water. Assigned to the Agriculture, Natural Resources, & Energy Committee.

HB 12-1361: Amending Governmental Immunity Act to Disallow Sovereign Immunity for Claims Arising from Prescribed Fires On or After January 1, 2012

On May 3, 2012, Rep. Bob Gardner and Sen. Bill Cadman introduced HB 12-1361 – Concerning Claims Against the State Arising Under the “Colorado Governmental Immunity Act.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In connection with the “Colorado Governmental Immunity Act” (CGIA):

  • The bill expands the definition of “dangerous condition” to include a prescribed fire started or maintained by the state. In addition to any other claims for which the state waives immunity under the CGIA, the bill waives sovereign immunity in connection with claims against the state in an action for injuries resulting from a dangerous condition caused by a prescribed fire started or maintained by the state or any of its employees on or after January 1, 2012.
  • The bill specifies that it shall not be construed to constitute a waiver of sovereign immunity if the injury arises from any act, or failure to act, of a state employee if the act is the type of act for which the state employee would be or heretofore has been personally immune from liability.
  • The bill also specifies that the state shall also have the same immunity as a state employee for any act or failure to act for which a state employee would be or heretofore has been personally immune from liability.

The bill modifies existing law to clarify the requirements under which an amount may be recovered against the state in excess of the maximum liability amounts specified in the CGIA. The bill clarifies existing provisions to specify that the general assembly acting by bill may authorize payment of all or a portion of a judgment against the state that exceeds the maximum amounts.

The bill sets up an alternate procedure under which the state claims board, after compromising or settling a clam on behalf of the state for the maximum liability limits under the CGIA, is empowered to determine, in its sole discretion, whether to recommend to the general assembly that the general assembly, by bill, authorize all or any portion of any such additional payment. In determining whether to make such recommendation, the claims board is required to consider interests of fairness, the public interest, and the interests of the state. A recommendation made by the claims board shall not include payment for noneconomic loss or injury and is to be reduced to the extent the claimant’s loss is or will be covered by another source, including any insurance proceeds that have been paid or will be paid, and no insurer shall have a right of subrogation against the claimant for any additional payment or any portion of such payment that is approved by the general assembly. Any additional payment or any portion of such payment approved by the general assembly is to be paid from the general fund.

The bill was introduced on May 3. On May 4 the Appropriations committee referred the unamended bill to the full House for consideration on 2nd Reading. On Friday, May 4 the bill passed on 2nd Reading with amendments. On Monday, May 7, the House adopted the bill on 3rd Reading on a vote of 59-5-1.

Since this summary, the bill passed all three readings in the Senate, unamended.

Summaries of other featured bills can be found here.

SB 12-180: Encouraging the Use of Colorado Forests and Water Systems as a Source of Renewable Energy

On April 26, 2012, Sen. Gail Schwartz and Rep. Don Coram introduced SB 12-180 – Concerning Measures to Encourage the Use of Colorado Forest Biomass as a Source of Renewable Energy. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill develops a variety of legislative responses to address the risks caused by diseased and falling trees, pest epidemics, and fire to Colorado’s forests and water systems, including:

  • Encourages the Colorado state forest service to further collaborate with the United States forest service to address the risk of wildfire in our forest ecosystems;
  • Encourages the Colorado Economic Development Commission, in collaboration with the Colorado Department of Agriculture, to promote forest products derived from Colorado forests;
  • Encourages the air quality control commission to identify residential, commercial, and industrial equipment, specifically with respect to equipment fueled by woody biomass, that meets air emissions standards;
  • Encourages the Colorado agricultural value-added development board to prioritize silviculture energy grant requests in applying the “advancing Colorado’s renewable energy” program and extending funding for the program until fiscal year 2016-17;
  • Expands the definition of “conservation easement in gross” to include sustainable ecosystem management and reforestation;
  • Creates renewable energy enterprise areas to promote tax credits and incentives for investments made to businesses and facilities in the woody biomass industry and presenting geographic designations of the areas to an enterprise zone review task force for review, and authorizes the executive director of the Department of Revenue to promote the tax credits;
  • Amends Colorado’s renewable energy standard to encourage the public utilities commission to give priority to biomass derived from insect-killed or insect-diseased timber and other forest products in providing credit multipliers; and
  • Creates a work group to evaluate renewable thermal and cogeneration technologies in Colorado, identify potential investment incentives for the technologies, and explore the development of a renewable energy credit market for these technologies.

The bill is assigned to the Agriculture, Natural Resources, and Energy Committee and is scheduled for committee review on Tuesday, May 1 at 7:30 a.m.

Since this summary, the bill was postponed indefinitely in committee.

Summaries of other featured bills can be found here.

SB 12-178: Modifications to Colorado’s Renewable Energy Portfolio

On April 24, 2012, Sen. Angela Giron and Rep. Keith Swerdfeger introduced SB 12-178 – Concerning the Removal of Enhanced Credits for Purchase of In-State Eligible Energy Resources from the Renewable Energy Standard. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill modifies certain standards from the renewable energy portfolio standards of in-state preferences with respect to:

  • Wholesale distributed generation;
  • The one and one-quarter kilowatt-hour multiplier for each kilowatt-hour of electricity generated from eligible energy resources other than retail distributed generation;
  • The one and one-half kilowatt-hour multiplier for community-based projects; and
  • Policies to provide incentives to qualifying retail utilities to invest in eligible energy resources.

On April 25, the Judiciary Committee approved the unamended the bill and moved it to the Senate floor for consideration on 2nd Reading.

Since this summary, the second reading was laid over daily.

Summaries of other featured bills can be found here.

HB 12-1356: Imposing Punitive Sanctions on Local Governments That Interfere with Oil and Gas Production

On April 27, 2012, Rep. Jerry Sonnenberg and Sen. Greg Brophy introduced HB 12-1356 – Concerning a Prohibition on a Local Government that Impacts Oil and Gas Extraction from Receiving Any Moneys from the Local Government Severence Tax Fund. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently, moneys in the local government severance tax fund are primarily used for 2 purposes:

  • For the executive director of the Department of Local Affairs to provide grants and loans to political subdivisions impacted by development, processing, or energy conversion of minerals and mineral fuels; and
  • For direct distributions to counties and municipalities based on factors related to oil and gas production.

The bill prohibits any local government that restricts or delays the ability of an oil and gas producer to exercise the producer’s property right as a lessee or owner to extract oil and gas from receiving any grants or direct distributions from the local government severance tax fund.

The bill is assigned to the Assigned to Agriculture, Livestock, & Natural Resources Committee. Committee review of the bill is scheduled for Monday, April 30 at 1:30 p.m.

Summaries of other featured bills can be found here.

HB 12-1355: Transfer of Colorado Geological Survey from the Department of Natural Resources to the Colorado School of Mines

On April 27, 2012, Rep. Cheri Gerou and Sen. Mary Hodge introduced HB 12-1355 – Concerning the Transfer of the Geological Survey to the Colorado School of Mines. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Joint Budget Committee Bill

The bill transfers the powers, duties, and functions of the Colorado geological survey and the office of the state geologist in the Department of Natural Resources to the Colorado School of Mines. The transfer will occur on January 1, 2013. Prior to the transfer, the Department and the School of Mines shall enter into a memorandum of understanding concerning the functions and objectives of the geological survey as transferred to the school of mines, the transfer of employees, the transfer of real and personal property, department contracts, and other specific provisions relating to the transfer. The bill provides for the transfer of unencumbered and unexpended appropriations to the School of Mines.

If the Department and the School of Mines do not enter into a memorandum of understanding on or before December 31, 2012, the transfer will not occur, and the new statutory provisions created in article 41 of title 23 are repealed. The School of Mines shall notify the revisor of statutes if the department and the school of mines enter into the memorandum of understanding.

The bill relocates, with amendments, statutory provisions relating to the geological survey and the office of the state geologist to the statutes governing the School of Mines and makes conforming amendments relating to the transfer. The bill is assigned to the Appropriations Committee; it is not listed on the printed calendar.

Since this summary, the bill was amended in Appropriations and referred to the House Committee of the Whole.

Summaries of other featured bills can be found here.

HB 12-1351: Expands Definition of Recycled Energy to Include Electricity Produced Through Combustion of Synthetic Gas Derived from Waste Materials

On April 24, 2012, Rep. Jon Becker and Sen. Lois Tochtrop introduced HB 12-1351 – Concerning Inclusion Under the Renewable Energy Standard’s Definition of Recycled Energy Such Energy that Combusts Gas Generated from Synthetic Gas Derived from Waste Materials Through Pyrolysis as the Fuel Source for Generation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently, recycled energy is a type of eligible energy resource that may be used to meet renewable energy standards. The bill adds to the definition of “recycled energy” the energy that is produced by a generation unit with a nameplate capacity of not more than 15 megawatts that combusts gas generated from synthetic gas derived from waste materials through pyrolysis as the fuel source for generation. On April 27, the Appropriations Committee approved the bill and moved it to the floor of the House for consideration on 2nd Reading.

Since this summary, the bill passed a House Second Reading Special Order and Third Reading in the House.

Summaries of other featured bills can be found here.

SB 12-171: Creation of the Colorado Conservation and Recreation Program

On April 18, 2012, Sen. Brandon Shaffer and Rep. Jon Becker introduced SB 12-1340 – Concerning the Creation of the Colorado Conservation and Recreation Fund, and, In Connection Therewith, Creating the Colorado Conservation License Plate. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates the Colorado conservation and recreation fund and program and designates the program as an enterprise. The program is directed to build a conservation and recreation center at Bonny Lake and to use any remaining moneys for similar programs. The program is given bonding authority. The program may enter into business relationships with nonprofit entities and exercise the powers necessary for an enterprise.

The bill also creates the Colorado conservation license plate. A person becomes eligible to use the plate by donating $150 to the Colorado conservation and recreation fund. In addition to the normal motor vehicle fees, the plate requires two one-time fees of $25. One of the fees is credited to the highway users tax fund and the other to the licensing services cash fund. Assigned to the Finance Committee; the bill is set for committee review on Thursday, April 26 Upon Adjournment.

Since this summary, the bill was referred unamended from the Finance Committee to Appropriations.

Summaries of other featured bills can be found here.

HB 12-1349: Appropriating Moneys From the Species Conservation Trust Fund for Programs Designed to Preserve Threatened or Endangered Native Species

On April 19, 2012, Rep. Randy Baumgardner and Sen. Gail Schwartz introduced HB 12-1349 – Concerning the Species Conservation Trust Fund. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill appropriates money from the species conservation trust fund for programs submitted by the executive director of the department of natural resources that are designed to conserve native species that have been listed as threatened or endangered under state or federal law, or are candidate species or are likely to become candidate species as determined by the United States fish and wildlife service.

The bill combines the operation and maintenance account and the capital account of the trust fund. Assigned to the Agriculture, Livestock, & Natural Resources Committee; the bill is not listed on the printed calendar.

Summaries of other featured bills can be found here.

HB 12-1334: Extension of Funding for Agricultural Energy Related Projects from Operational Account of Severance Tax Trust Fund

On March 29, 2012, Rep. Jon Becker and Sen. Mary Hodge introduced HB 12-1334 – Concerning the Extension of Severance Tax Funding for the Promotion of Agricultural Energy-Related Projects. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Joint Budget Committee.

In 2006, the general assembly approved a transfer of $500,000 from the severance tax trust fund for 3 years to promote agricultural energy-related projects. In 2009, the general assembly approved a two year extension. The bill extends the funding for an additional five years from the severance tax trust fund to promote agricultural energy-related projects. On April 4, the Agriculture, Livestock, & Natural Resources Committee referred the unamended bill the Appropriations Committee to consider the fiscal impact to the state.

Since this summary, the bill was amended in the Appropriations Committee and referred to the House Committee of the Whole.

Summaries of other featured bills can be found here.

Colorado Court of Appeals: Statute Regarding “Taking” of Wildlife Not Unconstitutionally Vague; Juvenile Delinquency Conviction Upheld

The Colorado Court of Appeals issued its opinion in People in the Interest of M.C. on April 12, 2012.

Willful Destruction of Wildlife.

M.C., a juvenile, appealed an adjudication of delinquency entered after a bench trial. The judgment was affirmed.

The juvenile and two companions, T.P. and C.P., had gone out to shoot clay pigeons when they encountered a pronghorn antelope. T.P. shot and killed it. The boys went to C.P.’s home and returned that night, dragged the carcass down a hill, and hid it. The juvenile assisted. The juvenile was charged with willful destruction of wildlife, in violation of CRS § 33-6-117(1)(a)(II), which holds that it is unlawful to “intentionally abandon the carcass or body of taken wildlife.” The offense is a class 5 felony. The prosecution responded to a request for a bill of particulars as follows:

[Juvenile] abandoned the wildlife when he left the original kill site with the person who killed the wildlife. He went with the person who killed the wildlife back to a [sic] juvenile’s house. He then returned to the scene with the person who killed the wildlife. He helped move the carcass from the original spot to a different location. He and the others then abandoned the wildlife.

The juvenile moved to dismiss on the ground that the information failed to charge an offense. He argued that CRS § 33-6-117(1)(a)(I) and (II) are not independent and, therefore, the actor had to have “taken” the wildlife. Alternatively, he argued that subsection (II) was unconstitutionally vague because it does not identify what right or interest the actor must have in the wildlife. The court denied the motion.

The juvenile renewed his same arguments on appeal. The Court of Appeals rejected both of them. The Court first found that the plain language of CRS § 33-6-117(1)(a)(I) and (II) describe different ways of committing willful destruction of wildlife—one of which is abandoning wildlife regardless of whether the actor was also the taker.

The Court also found that CRS § 33-6-117(1)(a)(II) was not void for vagueness. A facial challenge requires a showing that the statute is “impermissibly vague in all of its applications.” The juvenile argued that a person can only abandon something in which a person has a right or interest. Here, the statute requires that the wildlife was “taken,” defined as “to acquire possession of wildlife.” Although finding ambiguity in the phrasing (the actor doing the taking is not identified), the Court held that it did not rise to the level of unconstitutional vagueness, because a person of common intelligence has sufficient notice under the statute that subsection (II) could apply to abandonment of wildlife taken by another person. “Abandon” is not defined in the statute, but the plain meaning of the word is clear enough that a person of common intelligence would understand that there was liability for abandoning the carcass of an animal taken by another. The judgment was affirmed.

Summary and full case available here.