January 16, 2018

Tenth Circuit: Case Properly Remanded to State Court Under the Class Action Fairness Act

The Tenth Circuit Court of Appeals issued its opinion in Speed v. JMA Energy Company, LLC on Monday, October 2, 2017.

Plaintiff Speed filed a petition in the District Court of Hughes County, Oklahoma, asserting a class action against JMA Energy Company, alleging that JMA had willfully violated an Oklahoma statute that requires interest payments of revenue from oil and gas production. Speed further asserted that JMA fraudulently concealed from mineral-interest owners that JMA owed interest to the owners, intending to pay only those who requested the interest.

JMA removed the case to the United States District Court for the Eastern District of Oklahoma, asserting that the district court had jurisdiction under the Class Action Fairness Act (CAFA). Speed then filed an amended motion to remand the case to state court. The district court granted this motion, relying on an exception to CAFA that permits a district court to decline to exercise jurisdiction over a class action meeting certain prerequisites based on consideration of certain factors.

JMA appealed, challenging the district court’s remand order. The Tenth Circuit Court of Appeals found the district court properly considered the statutory factors and did not abuse its discretion by remanding to state court.

CAFA permits a class action to be brought in or removed to federal court if: (1) the proposed class includes at least 100 persons with claims; (2) the aggregate amount in controversy on all claims exceeds $5 million; (3) at least one proposed plaintiff and one defendant have diverse citizenship; and (4) the primary defendants are not governmental entities or officials against whom a federal court cannot order relief.

CAFA also recognizes three statutory exceptions. The exception at issue in this case is the discretionary exception. This exception allows a federal court to decline to exercise jurisdiction over a class action that is otherwise covered by CAFA based on six enumerated factors. The Tenth Circuit considered each factor in turn to determine if there was a legal error or other abuse of discretion by the district court.

The first factor is whether the claims asserted involve a matter of national or interstate interest. The Tenth Circuit found that JMA failed to explain how there could be a significant national interest in the mere allocation of interest between producers and royalty owners. The only thing national or interstate about this case is that some of the owners of Oklahoma property, who are basing their claims on alleged violations of an Oklahoma statute, happen to live in other states and receive their royalty checks there. The Tenth Circuit determined that was not enough to reverse the district court’s finding.

The second factor was whether the claims asserted would be governed by Oklahoma law or the laws of other states. The district court found JMA’s argument that a fraud claim against Oklahoma may be governed by the law of a different state unpersuasive and concluded that this factor weighed in favor of Speed’s motion to remand. The Tenth Circuit concluded that Oklahoma law controlled.

The third factor was whether the class action had been pleaded in order to avoid federal jurisdiction. JMA asserted that Speed attempted to avoid federal jurisdiction by excluding from the class any publicly traded companies and affiliated entities that produced, gathered, processed, or marketed oil and gas. The district court found this argument unpersuasive, reasoning that Speed had proposed a class that encompassed all the people and claims that one would expect to include in a class action. The Tenth Circuit agreed.

The fourth factor was whether the action was brought in a forum with a distinct nexus with the class members, the alleged harm, or the defendants. The Tenth Circuit found no abuse of discretion by the district court, as the factors of this case demonstrated the required nexus between Oklahoma and the class members, the alleged harms, and the defendant, including that the action was related to real-property interests in Oklahoma, the class members owned royalty interests in Oklahoma property, JMA is a citizen of Oklahoma, and the underlying alleged actions that gave rise to this suit took place in Oklahoma.

The fifth factor was whether the number of citizens of the state in which the action was originally filed is substantially larger than the number of citizens from any other state for plaintiffs in the class, and whether the citizenship of the other members of the proposed class was dispersed among a substantial number of states. The Tenth Circuit found the district court correctly determined that this factor weighed in favor of remand, as the number of Oklahoma citizens was about 2.5 times the number of citizens from any other state.

The sixth, and last, factor was whether, during the three-year period preceding the filing of the class action, one or more other class actions asserting the same or similar claims on behalf of the same or other persons had been filed. No other actions have been filed; therefore, this factor favors remand.

The Tenth Circuit determined that the district court did not abuse its discretion in ruling that each factor supported remand.

The Tenth Circuit Court of Appeals AFFIRMED the decision remanding the case to state court.

Tenth Circuit: Appeal of Fracking Regulation Unripe Due to Uncertainty of Future

The Tenth Circuit Court of Appeals issued its opinion in State of Wyoming v. Zinke on Thursday, September 21, 2017.

In this case, the Tenth Circuit Court of Appeals is asked to decide whether the Bureau of Land Management (BLM) acted beyond its statutory authority when it created a regulation that governed hydraulic fracturing (fracking) on lands owned by the United States.

As fracking has become more common, public concern has increased about whether fracking is contributing to contamination of underground water sources. The BLM responded by preparing a regulation that attempted to modernize the existing federal regulations governing fracking on lands owned by the United States by increasing disclosure of the chemicals used in fracking, updating the standards for wellbore construction and testing, and addressing management of water used in the fracking process.

The finalized, published fracking regulation attempted to regulate fracking in four ways: by (1) imposing new well construction and testing requirements; (2) imposing new flowback storage requirements; (3) imposing new chemical disclosure requirements; and (4) generally increasing BLM’s oversight of fracking.

Shortly before the fracking regulation was to take effect, the Independent Petroleum Association of America (IPAA) and the Western Energy Alliance (WEA) filed a petition for review under the Administrative Procedure Act (APA), opposing the new regulation. North Dakota, Utah, and the Ute Indian Tribe also intervened.

The petition for review asserted that the fracking regulation violated two provisions of the APA in two ways: (1) the regulation was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; and (2) it was in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.

The district court concluded that no statute authorized the BLM to regulate fracking. The district court reasoned that states may regulate underground injections of any substance, not the federal government. According to the district court, only the states could regulate fracking.

While the parties supporting the regulation brought an appeal, the BLM asked this court to hold these appeals in abeyance, explaining that President Trump’s Executive Order required the Department of the Interior to review its regulations, including the fracking regulation, for consistency with the policies and priorities of the new administration. Another Executive Order directed the Secretary of the Interior, as soon as practicable, to publish for notice and comment proposed rules suspending, revising, or rescinding the fracking regulation at issue. The Secretary of the Interior then stated that the BLM would rescind the regulation in full.

The issue addressed in this appeal is whether the BLM has the authority to regulate fracking on lands owned or held in trust by the United States and thereby to promulgate the fracking regulation. The Tenth Circuit Court of Appeals held that the case was not ripe for review, as there was no hardship to the parties. The only harm suffered will be the continued operation of oil and gas development on federal lands, which represents no departure from the status quo since 2015. Further, the BLM will be able to proceed with its proposed rule rescinding the fracking regulation, and would face more uncertainty if these appeals were to remain under advisement. The appeal was held to be unripe and unfit for judicial review.

The Circuit dismissed the appeals, finding that the subject matter is unripe and the record is notably undeveloped or the future is particularly uncertain.

The Tenth Circuit Court of Appeals DISMISSED the appeals as prudentially unripe, VACATED the district court’s judgment invalidating the fracking regulation, and REMANDED with instructions to dismiss the underlying action without prejudice.

Colorado Supreme Court: Taxpayer Entitled to File Statutory Claim for Relief After Expiration of Protest Period

The Colorado Supreme Court issued its opinion in OXY USA, Inc. v. Mesa County Board of Commissioners on Monday, November 13, 2017.

Tax Law—Taxpayer Error—Overvaluation

The supreme court holds that section 39-10-114(1)(a)(I)(A), C.R.S. (2017), allows abatement and refund for illegally or erroneously levied taxes based on overvaluation caused by taxpayer error. This result follows from the statute’s plain text that allows abatement for “overvaluation” without making a distinction between government- and taxpayer-caused overvaluations. The court rejects the court of appeals’ holding that Coquina Oil Corp. v. Larimer County Board of Equalization, 770 P.2d 1196 (Colo. 1989), and Boulder County Board of Commissioners v. HealthSouth Corp., 246 P.3d 948 (Colo. 2011), require a different result. Coquina was superseded by the 1991 legislative amendment that added “overvaluation” as a ground for abatement, and HealthSouth’s holding was limited to intentional taxpayer overvaluations. The supreme court reverses the judgment of the court of appeals and remands for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Class Did Not Cease to Exist When Settlement Entered

The Colorado Court of Appeals issued its opinion in EnCana Oil & Gas (USA), Inc. v. Miller on Thursday, August 10, 2017.

Class Action Settlement—Arbitration Provision—C.R.C.P. 23—Survival of the Class.

A certified class of Colorado oil and gas royalty owners (the Class) and EnCana Oil & Gas (USA), Inc. (EnCana) litigated, beginning in 2005, EnCana’s alleged underpayment of royalties on natural gas it produced. In 2008, EnCana and the Class entered into a settlement agreement that detailed payment of funds to settle past claims, established the methodology EnCana would use for future royalty payments, and included an arbitration clause. The district court’s final judgment approved and incorporated the settlement agreement, dismissed the 2005 case with prejudice, and reserved jurisdiction to enforce the agreement. In 2016, oil and gas royalty owners (Owners), purporting to act on behalf of the Class, filed a demand for arbitration alleging EnCana had underpaid royalties owed to Class members in violation of the settlement agreement. EnCana filed a new case in district court asserting that (1) the class ceased to exist when the 2005 case was dismissed with prejudice in 2008, and (2) the 2008 settlement agreement did not authorize arbitration on a class-wide basis. The district court found that the class had not ceased to exist and the claims should be resolved in class-wide arbitration, and entered summary judgment against EnCana.

On appeal, EnCana contended that the district court erred in finding that the Class continued after the case was dismissed. The court of appeals determined that the Class survived the 2008 dismissal because (1) compliance with the settlement agreement became part of the dismissal order, so the district court retains jurisdiction to give effect to the agreement; and (2) the agreement continues for the lives of the leases or royalty agreements covered by the settlement agreement and expressly burdens and benefits successors and assigns of the parties.

EnCana also claimed that the district court failed to satisfy C.R.C.P. 23. The district court did not err in declining to engage in further Rule 23 analysis after the 2008 dismissal and judgment approving the settlement agreement.

The court next rejected EnCana’s contention that Class counsel failed to provide sufficient notice of the arbitration demand.

EnCana then argued it was error to determine that the settlement agreement contained a contractual basis to conclude that EnCana and the Class agreed to class arbitration. EnCana asserted that because the arbitration clause is silent on class arbitration, the district court should have presumed that the parties agreed to bilateral arbitration only. The settlement agreement explicitly names all members of a certified class as a party to the agreement, frames the disputes in class- or subclass-wide terms, and provides relief on a class- or subclass-wide basis. The arbitration clause’s context thus demonstrates an agreement to class rather than bilateral arbitration. Further, to conclude that the settlement agreement evidenced that the parties contemplated engaging in approximately 5,850 individual arbitrations to resolve future disputes rather than a single class arbitration would be absurd.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Public Utilities Commission has Exclusive Jurisdiction Over Claims for Enforcement of Tariffs

The Colorado Court of Appeals issued its opinion in Development Recovery Co., LLC v. Public Service Co. of Colorado on Thursday, June 15, 2017.

Public Utility—Subject Matter Jurisdiction—Enforcement of Tariffs—Common Law Claims.

The Public Service Company of Colorado, d/b/a Xcel Energy Co. (Xcel), is a utility company regulated by the Colorado Public Utilities Commission (PUC). Development Recovery Company, LLC (DRC) was the assignee of claims from real estate developers who entered into extension agreements (agreements) with Xcel for the construction of distribution facilities to provide gas or electric service for homes in new developments. The agreements specified that they were governed by the PUC’s rules and regulations and referred several times to Xcel’s extension policies. The extension policies on file with the PUC are referred to as tariffs and provide that extension contracts are based on the estimate of the cost to construct and install the necessary facilities to provide the requested service. The tariffs explain in detail how construction costs and payments are to be handled.

DRC filed a complaint against Xcel alleging various common law claims and violation of C.R.S. § 40-7-102, related to an unspecified number of agreements between developers and Xcel over the course of 18 years. Xcel moved to dismiss, arguing that this matter was within the exclusive jurisdiction of the PUC or, alternatively, if the PUC did not have exclusive jurisdiction, the court should nevertheless refer the matter to the PUC under the primary jurisdiction doctrine. The district court agreed with Xcel on both grounds and dismissed the complaint.

On appeal, DRC argued that the district court has exclusive subject matter jurisdiction over DRC’s common law claims, asserting that the trial court erred in concluding that the substance of its claims is merely the enforcement of tariffs. The court of appeals noted that the PUC has exclusive jurisdiction in its constituted field, including enforcement of tariffs. The court concluded that all of DRC’s claims substantively involved enforcement of the tariffs (essentially, how costs were to be calculated and paid). Further, even if DRC has a cause of action under C.R.S. § 40-7-102, exhaustion of administrative remedies before the PUC is required.

DRC also asserted that the district court must have jurisdiction because only it can award the relief sought. DRC cannot confer subject matter jurisdiction on the district court simply by requesting relief in the form of damages. Further, the PUC has authority to order reparations where excessive charges have been collected by a public utility for a product or service, which is a potential remedy in this case.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: County Assessor Authorized to Retroactively Assess Property Taxes on Oil and Gas Leaseholds

The Colorado Supreme Court issued its opinion in Kinder Morgan CO2 Co., L.P. v. Montezuma County Board of Commissioners on Monday, June 19, 2017.

Oil and Gas—Property Taxation—Statutory Construction.

The supreme court reviewed the court of appeals’ conclusion that the Montezuma County Assessor had statutory authority to retroactively assess property taxes on oil and gas leaseholds operated by Kinder Morgan, after the assessor determined that Kinder Morgan had underreported the wellhead selling price of CO2 gas produced at the leaseholds. The court considered whether this assessment was authorized under the statute permitting retroactive property tax assessments when, pursuant to C.R.S. § 39-5-125(1), “taxable property has been omitted from the assessment roll.” Given Colorado’s self-reporting scheme for property taxation of oil and gas leaseholds and the legislature’s amendments to that scheme—which describe the “underreporting of the selling price or the quantity of oil and gas sold [from a leasehold]” as a form of omitted property, C.R.S. §§ 29-1-301(1) and 39-10-107(1)—the court concluded that the assessor had statutory authority to issue the assessment in this case. The court further concluded that the Board of Assessment Appeals did not err in determining that Kinder Morgan had underreported the wellhead selling price of CO2. The court therefore affirmed the judgment of the court of appeals.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Oil and Gas Commission Has Authority to Issue Rule at Petitioner’s Request

The Colorado Court of Appeals issued its opinion in Martinez v. Colorado Oil and Gas Commission on Thursday, March 23, 2017.

Oil and Gas Conservation ActColorado Oil and Gas Conservation CommissionPublic Health and Safety.

Petitioners filed a petition for rulemaking pursuant to the Colorado Oil and Gas Conservation Commission’s Rule 529(b). Petitioners proposed a rule requesting that the Commission not issue permits for drilling oil and gas wells unless certain conditions were met to demonstrate that the drilling would not have specified adverse effects. The Commission ultimately denied the petition, concluding that (1) the proposed rule mandated action that exceeded the Commission’s statutory authority; (2) the requested third-party review contradicted the Commission’s nondelegable duty to promulgate rules; and (3) the public trust doctrine, which petitioners relied on to support their request, has been expressly rejected in Colorado. The district court affirmed the Commission’s order after concluding that the Commission rationally decided to deny the petition after considering input from stakeholders on both sides of the fracking issue in accordance with the Oil and Gas Conservation Act’s requirement of a balance between the development of oil and gas resources and the protection of public health, safety, and welfare.

On appeal, petitioners contended that the district court and the Commission erred in interpreting the Act. The Colorado Court of Appeals determined that the plain meaning of the statutory language indicates that fostering balanced development, production, and use of natural resources is in the public interest when that development is completed subject to the protection of public health, safety, and welfare. Therefore, the Commission erred in interpreting C.R.S. § 34-60-102(1)(a)(I) as requiring a balance between development and public health, safety, and welfare.

The district court’s and Commission’s orders were reversed and the case was remanded for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Summary Judgment Affirmed Where No Evidence Presented of Conspiracy to Monopolize

The Tenth Circuit Court of Appeals issued its opinion in Buccaneer Energy (USA) Inc., v. Gunnison Energy Corporation; SG Interests I, LTD.; SG Interests VII, LTD. on February 3, 2017.

Buccaneer Energy (USA) Inc. (Buccaneer) sued SG Interests I, Ltd.., SG Interests VII, Ltd. (together, SG), and Gunnison Energy Corporation (GEC) (collectively, Defendants) alleging that Defendants had conspired in restraint of trade in violation of § 1 of the Sherman Act and that Defendants had conspired to monopolize in violation of § 2 of the Sherman Act. The district court granted summary judgment for the Defendants and the Tenth Circuit affirmed due to Buccaneer’s failure to present sufficient evidence to create a genuine issue of fact on one or more elements of each of its claims.

Defendants each granted each other the option to participate equally in the construction and ownership of any pipeline initiated by the other party. GEC exercised this option to participate in the Bull Mountain Pipeline, which traveled from the Ragged Mountain Area (RM Area) located in Delta and Gunnison Counties, Colorado, to the Questar Interstate pipeline. GEC and SG also equally had ultimate control over the Ragged Mountain Gathering System (RM System), which transported natural gas from the RM Area to the Rocky Mountain natural Gas Pipeline (Rocky Mountain Pipeline).

Buccaneer acquired the Riviera Drilling and Exploration Company’s (Riviera) leases in the RM Area. Buccaneer pursued a means for transporting its expected gas production from GEC on the RM System. GEC offered a rate of $1.52 per MMBtu for interruptible service. Buccaneer countered, revising the interruptible service language but keeping the rate the same. GEC responded raising the rate to $3.92 per MMBtu, and reinserting the interruptible service provisions. Buccaneer did not counteroffer again. Buccaneer failed to secure a transportation agreement and Riviera terminated the Lease Agreement.

Buccaneer filed this case on June 21, 2012 and alleged that the “RM System was essential to effective competition for production rights and the sale of natural gas from the Ragged Mountain Area.” It further claimed that because Defendants refused to provide Buccaneer with access to the RM System, Defendants violated §§ 1 and 2 of the Sherman Act by engaging in a conspiracy in restraint of trade and a conspiracy to monopolize.

The district court granted summary judgment for Defendants on both of Buccaneer’s antitrust claims because Buccaneer did not present evidence to show that Defendants caused, or could cause, injury to competition in a defined market. Buccaneer also did not demonstrate its own preparedness to enter the market. The Tenth Court affirmed, concluding that Buccaneer failed to present sufficient evidence to survive summary judgment on either of its claims.

Section 1 of the Sherman Act prohibits “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States.” 15 U.S.C. § 1. This provision has been construed to forbid only restraints of trade that are unreasonable. The Tenth Circuit analyzed the Defendants’ conduct under the rule of reason because Buccaneer did not allege a per se rule violation.

First, the Tenth Circuit dismissed Buccaneer’s allegation that the Defendants unreasonably denied it access to the RM System, which was Buccaneer claimed was “essential” to Buccaneer’s ability to compete. Buccaneer failed to prove the second element of the “essential facilities doctrine,” a competitor’s inability to duplicate the facility. Here, the relevant facility is the RM System, and while it may be difficult to duplicate, Buccaneer did not present any evidence on the matter. Buccaneer focused on the Bull Mountain Pipeline, which was not at issue in this case.

Next, the Tenth Circuit held that Buccaneer did not adequately establish its claim under the rule of reason. Under the rule of reason, the plaintiff has the initial burden of showing an agreement had a substantially adverse effect on competition. The burden then shifts to the defendant to show pro-competitive virtues of such conduct. Then the plaintiff must show that such conduct was not reasonably necessary to achieve the legitimate objectives.  A court must then weigh the harms and benefits of such conduct to determine if it is reasonable.

A plaintiff must show an adverse effect on competition in general, not just that the conduct adversely affected the plaintiff’s business. Buccaneer failed to meets its burden of showing that the challenged conduct had anticompetitive effects. Buccaneer did not present any evidence of actual anticompetitive effect; such as fewer production rights being acquired in the RM Area or that Defendants’ position allowed them to pay less than competitive prices.

The Tenth Circuit next addressed whether Buccaneer had shown harm to competition by Defendants’ possession of market power in the relevant market. The “relevant market” consists of both the product area and the geographic area. The product market consists of products that are sufficiently substitutable with each other based on the purpose for which they are produced, as well as their price, use, and quantities. The geographic market encompasses the area in which competition occurs. Once the relevant market has been identified, a plaintiff must show market power by demonstrating that the defendants had either the power to control price or the power to exclude competition.

Buccaneer asserted that the first relevant product was “production rights” and the relevant geographic market was the RM Area. The Tenth Circuit held that Buccaneer did not adequately define either market. Buccaneer did not offer its own definition of the product market for “production rights,” for which it bore the burden of defining. Buccaneer also failed to establish the relevant geographic market with any precision; it simply stated the area and did not define its boarders. Therefore, the Tenth Circuit held that Buccaneer failed to meet its burden of establishing either the product or the geographic market. The district court therefore did not err when it dismissed the claim for failure to allege a legally sufficient market.

Further, even if Buccaneer did define a relevant market, it did not establish that Defendants possessed market power. Market share, or size, is not enough to establish market power, and the absence of market share creates a presumption that market power does not exist. Buccaneer did not present evidence to demonstrate Defendants’ market share. It did not allege what percentage of the “production rights” market that Defendants possessed. Additionally, Buccaneer did not present evidence that that Defendants created any barriers of entry into the relevant market for competitors. Therefore, Buccaneer failed to satisfy its burden of showing market power and also failed to establish any anticompetitive effect in the alleged market for production rights.

Buccaneer next alleged that the second relevant product was natural gas, which was undisputed. The Tenth Circuit held that Buccaneer’s defined relevant market, which was “the market for downstream sales of gas,” was insufficient to address that market for considerations relevant under the rule of reason analysis. Buccaneer also failed to show that the Defendants possessed market power in any relevant market. The Tenth Circuit held that Buccaneer did not set forth facts from which a jury could find that the Defendants possessed market power in that market.

Finally, the Tenth Circuit quickly dismissed Buccaneer’s § 2 conspiracy claim because such a claim requires proof of a relevant antitrust market. As with Buccaneer’s § 1 claim, it did not establish a relevant market, so its § 2 claim fails for the same reasons as its § 1 claim.

In conclusion, the Tenth Circuit held that, because Buccaneer failed to present evidence from which a jury could conclude that Defendants’ conduct actually or potentially harmed competition in a relevant antitrust market, both its § 1 and § 2 Sherman Act claims fail. The Tenth Circuit affirmed the district court’s order granting summary judgment in favor of Defendants on that basis.

Colorado Court of Appeals: Complaint Filed After Denial of Motion to Reconsider was Untimely

The Colorado Court of Appeals issued its opinion in Sterling Ethanol, LLC v. Colorado Air Quality Control Commission on Thursday, February 23, 2017.

Interlocutory Appeal—Motion to Dismiss for Lack of Subject Matter Jurisdiction.

Sterling Ethanol, LLC and Yuma Ethanol, LLC (collectively, Companies) are ethanol manufacturing plants that are sources of air pollution in northeastern Colorado. They are required to operate in accordance with air permits issued by the Colorado Air and Pollution Control Division (Division). After the Division issued two compliance orders addressing the Companies’ alleged violations of their air permits, Companies sought timely administrative review from the Air Quality Control Commission (Commission), which operates pursuant to the Colorado Air Pollution Prevention and Control Act (APPCA). Following an evidentiary hearing, the Commission issued a final order affirming the Division’s orders.

Companies filed a motion to reconsider, which the Commission denied. Companies then filed a complaint in the district court 69 days after the Commission issued its final order and 35 days after the Commission denied its motion to reconsider. The Commission filed a motion to dismiss for lack of subject matter jurisdiction, arguing the complaint was untimely filed. The district court denied the motion. The district court, on the Commission’s request, certified for review the question whether the State Administrative Procedure Act (APA), the APPCA, and the Commission’s procedural rules, read together, compel the conclusion that the complaint was untimely filed, thus depriving the court of appeals of subject matter jurisdiction.

The court held that the district court erred in denying the motion to dismiss because Companies’ complaint was untimely. The party seeking judicial review must file a complaint within 35 days of the effective date of the Commission’s final order, even if that party first filed a motion to reconsider, and the Commission declined to reconsider its order. The plain language of the APPCA, the APA, and the Commission’s procedural rules required such a conclusion.

The order was reversed and the case was remanded for entry of an order dismissing the action.

Summary provided courtesy of The Colorado Lawyer.

SB 17-035: Increasing Penalties for Tampering with Oil and Gas Equipment or Facilities

On January 11, 2017, Sen. Jerry Sonnenberg introduced SB 17-035, “Concerning Tampering with Equipment Associated with Oil and Gas Gathering Operations.”

There is a current crime of tampering with equipment associated with oil or gas gathering operations. The bill includes placing another at risk of death or serious bodily injury as part of the crime and increases the penalty from a class 2 misdemeanor to a class 6 felony.

The bill was introduced in the Senate and assigned to the Agriculture, Natural Resources, & Energy Committee. It was amended in committee and referred to the Senate Committee of the Whole for Second Reading. The bill was amended on Second Reading and laid over.

HB 17-1124: Local Governments that Ban Fracking Liable to Mineral Interest Owners for Damages

On January 26, 2017, Rep. Perry Buck and Sen. Tim Neville introduced HB 17-1124, “Concerning a Requirement that a Local Government that Interferes with Oil and Gas Operations Compensate Persons Damaged by the Interference.”

The bill specifies that a local government that bans hydraulic fracturing of an oil and gas well is liable to the mineral interest owner for the value of the mineral interest and that a local government that enacts a moratorium on oil and gas activities shall compensate oil and gas operators, mineral lessees, and royalty owners for all costs, damages, and losses of fair market value associated with the moratorium.

The bill was introduced in the House and assigned to the State, Veterans, and Military Affairs Committee. It is scheduled for hearing in committee on February 22, 2017, at 1:30 p.m.

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.