October 22, 2017

Bills Signed Adding Water Right for Industrial Hemp, Amending Collections of Delinquent Taxes on Mobile Homes, Changing Election Laws, and More Signed

Though the legislative session is over, the governor continues to sign bills. He signed two bills on Friday, May 19; three bills on Saturday, May 20; three bills on Sunday, May 21; six bills on Monday, May 22; six bills on Tuesday, May 23; four bills on Wednesday, May 24; 28 bills on Thursday, May 25; one bill on Friday, May 26; and one bill on Tuesday, May 30. To date, the governor has signed 285 bills and vetoed one bill this legislative session. The bills signed since May 19 are summarized here.

Friday, May 19, 2017

  • HB 17-1354“Concerning the Collection of Delinquent Taxes on Certain Mobile Homes,” by Rep. KC Becker and Sens. John Kefalas & Kevin Priola. The bill modifies the county treasurer’s duties in connection with the collection of delinquent taxes on mobile or manufactured homes that are not affixed to the ground.
  • SB 17-305“Concerning Modifications to Select Statutory Provisions Affecting Primary Elections Enacted by Voters at the 2016 Statewide General Election to Facilitate the Effective Implementation of the State’s Election Laws, and, in Connection Therewith, Making an Appropriation,” by Sens. Stephen Fenberg & Kevin Lundberg and Reps. Patrick Neville & Mike Foote.

Saturday, May 20, 2017

  • HB 17-1113“Concerning Electronic Participation in Committee Meetings During the Legislative Interim,” by Reps. Yeulin Willett & Jeni Arndt and Sen. Ray Scott. The bill gives the executive committee of the legislative council the ability to consider, recommend, and establish policies regarding electronic participation by senators or representatives in committee meetings during the legislative interim.
  • HB 17-1258“Concerning Renaming Delta-Montrose Technical College to Technical College of the Rockies,” by Reps. Millie Hamner & Yeulin Willett and Sens. Kerry Donovan & Don Coram. The bill changes the name of ‘Delta-Montrose Technical College’ to ‘Technical College of the Rockies’.
  • SB 17-280“Concerning Extending the Repeal Date of the Colorado Economic Development Commission, and, in Connection Therewith, Making an Appropriation,” by Sen. Jack Tate and Reps. Dan Thurlow & Tracy Kraft-Tharp. The bill extends the Colorado economic development commission by changing the repeal date of its organic statute to July 1, 2025.

Sunday, May 21, 2017

  • HB 17-1003“Concerning a Strategic Action Plan to Address Teacher Shortages in Colorado,” by Rep. Barbara McLaughlin and Sen. Don Coram. The bill requires the Department of Higher Education in partnership with the Department of Education to examine recruitment, preparation, and retention of teachers and to prepare a strategic plan to address teacher shortages in school districts and public schools within the state.
  • HB 17-1077“Concerning the Useful Public Service Cash Fund,” by Rep. Donald Valdez and Sen. Don Coram. The bill creates the useful public service cash fund in the judicial branch to facilitate the administration of programs that supervise the performance of useful public service by persons who are required to perform such service pursuant to a criminal sentence.
  • SB 17-117“Concerning Confirmation that Industrial Hemp is a Recognized Agricultural Product for Which a Person with a Water Right Decreed for Agricultural Use may Use the Water Subject to the Water Right for Industrial Hemp Cultivation,” by Sen. Don Coram and Reps. Donald Valdez & Marc Catlin. The bill confirms that a person with an absolute or conditional water right decreed for agricultural use may use the water subject to the water right for the growth or cultivation of industrial hemp if the person is registered by the Department of Agriculture to grow industrial hemp for commercial or research and development purposes.

Monday, May 22, 2017

  • HB 17-1104“Concerning the Exclusion from State Taxable Income of the Monetary Value of any Medal Won by an Athlete while Competing for the United States of America at the Olympic Games, so long as the Athlete’s Federal Adjusted Gross Income does not Exceed a Specified Amount,” by Rep. Clarice Navarro and Sen. Kevin Priola. The bill specifies that for the purpose of determining the state income tax liability of an individual, income earned as a direct result of winning a medal while competing for the United States of America at the olympic games is excluded from state taxable income.
  • HB 17-1283“Concerning the Creation of a Task Force to Examine Workforce Resiliency in the Child Welfare System,” by Reps. Jonathan Singer & Dan Nordberg and Sens. John Cooke & Leroy Garcia. The bill creates a task force to organize county-level versions of and guidelines for child welfare caseworker resiliency programs modeled on national resiliency programs.
  • HB 17-1289“Concerning a Requirement that the State Engineer Promulgate Rules that Establish an Optional Streamlined Approach to Calculate the Historical Consumptive Use of a Water Right,” by Reps. Donald Valdez & Chris Hansen and Sens. Larry Crowder & Don Coram. The bill directs the state engineer to promulgate rules that take into account local conditions that an applicant can use to calculate historical consumptive use.
  • SB 17-074“Concerning the Creation of a Pilot Program in Certain Areas of the State Experiencing High Levels of Opioid Addiction to Award Grants to Increase Access to Addiction Treatment, and, in Connection Therewith, Making an Appropriation,” by Sen. Leroy Garcia and Rep. Daneya Esgar. The bill reates the medication-assisted treatment (MAT) expansion pilot program, administered by the University of Colorado College of Nursing, to expand access to medication-assisted treatment to opioid-dependent patients in Pueblo and Routt counties.
  • SB 17-105“Concerning Consumers’ Right to Know their Electric Utility charges by requiring investor-owned electric utilities to provide their customers with a comprehensive breakdown of cost on their monthly bills,” by Sen. Leroy Garcia and Reps. Daneya Esgar & KC Becker. The bill requires an investor-owned electric utility to file with the public utilities commission for the commission’s review a comprehensive billing format that the investor-owned electric utility has developed for its monthly billing of customers.
  • SB 17-153“Concerning Establishment of the Southwest Chief and Front Range Passenger Rail Commission to Oversee the Preservation and Expansion of Amtrak Southwest Chief Rail Service in Colorado and Facilitate the Development and Operation of a Front Range Passenger Rail System that Provides Passenger Rail Service In and Along the Interstate 25 Corridor,” by Sens. Larry Crowder & Leroy Garcia and Rep. Daneya Esgar. The bill replaces the existing southwest chief rail line economic development, rural tourism, and infrastructure repair and maintenance commission, the current statutory authorization for which expires on July 1, 2017, with an expanded southwest chief and front range passenger rail commission.

Tuesday, May 23, 2017

  • HB 17-1248“Concerning the Funding of Colorado Water Conservation Board Projects, and, in Connection Therewith, Making Appropriations,” by Rep. Jeni Arndt and Sens. John Cooke & Jerry Sonnenberg. The bill appropriates the following amounts from the Colorado Water Conservation Board construction fund to the CWCB or the Division of Water Resources for certain projects.
  • HB 17-1279“Concerning the Requirement that a Unit Owners’ Association Obtain Approval Through a Vote of Unit Owners Before Filing a Construction Defect Action,” by Reps. Alec Garnett & Lori Saine and Sens. Lucia Guzman & Jack Tate. The bill requires that, before the executive board of a unit owners’ association (HOA) in a common interest community brings suit against a developer or builder on behalf of unit owners based on a defect in construction work not ordered by the HOA itself, the board must notify the unit owners, call a meeting of the executive board, and obtain approval of a majority of unit owners.
  • HB 17-1280“Concerning Conforming Colorado Statutory Language Related to Disability Trusts to the Federal ’21st Century Cures Act’,” by Reps. Dafna Michaelson Jenet & Dave Young and Sen. Bob Gardner. The bill conforms Colorado statutory language relating to the creation of a disability trust to conform to the language established in the federal ’21st Century Cures Act’. Specifically, it clarifies that the individual who is the beneficiary of a disability trust can also be the person who establishes such trust.
  • HB 17-1353“Concerning Implementing Medicaid Initiatives that Create Higher Value in the Medicaid Program Leading to Better Health Outcomes for Medicaid Clients, and, in Connection Therewith, Continuing the Implementation of the Accountable Care Collaborative and Authorizing Performance-based Provider Payments,” by Rep. Dave Young and Sen. Kevin Lundberg. The bill authorizes the Department of Health Care Policy and Financing to continue its implementation of the medicaid care delivery system, referred to as the accountable care collaborative (ACC).
  • SB 17-209“Concerning Access to the Ballot by Candidates,” by Sen. Kevin Priola and Rep. Mike Weissman. The bill makes various changes to the laws governing access to the ballot.
  • SB 17-232“Concerning Continuation under the Sunset Law of the Bingo-Raffle Advisory Board, and, in Connection Therewith, Implementing the Recommendations of the 2016 Sunset Report of the Department of Regulatory Agencies,” by Sen. Stephen Fenberg and Rep. Paul Rosenthal. The bill The bill implements the recommendations of the sunset review and report on the licensing of bingo and other games of chance through the Secretary of State.

Wednesday, May 24, 2017

  • HB 17-1155“Concerning the Ability to Cure Campaign Finance Reporting Deficiencies Without Penalty,” by Rep. Dan Thurlow and Sen. Bob Gardner. The bill requires the Secretary of State to give notice to the particular committee by e-mail of deficiencies alleged in a complaint pursuant to the campaign finance provisions of the state constitution or the ‘Fair Campaign Practices Act’ (FCPA).
  • HB 17-1317“Concerning the Authority of the State Historical Society to Dispose of Real Property Located on the Former Lowry Air Force Base,” by Reps. Daneya Esgar & Chris Hansen and Sens. John Kefalas & Randy Baumgardner. The bill grants the state historical society the authority to sell a vacant cold storage facility located on the former Lowry Air Force base.
  • HB 17-1342“Concerning Authorization for a County to Submit a Ballot Question for a County Public Safety Improvements Tax at a Biennial County or November Odd-year Election,” by Rep. Adrienne Benavidez and Sen. Larry Crowder. The bill authorizes a county to submit a ballot question at a biennial county election or an election held in November of an odd-numbered year.
  • HB 17-1356“Concerning the Temporary Authority of the Colorado Economic Development Commission to Allow Certain Businesses to Treat Specific Existing Income Tax Credits Differently,” by Reps. Crisanta Duran & Daneya Esgar and Sens. Leroy Garcia & Jack Tate. The bill allows the Colorado economic development commission to allow certain businesses that make a strategic capital investment in the state, subject to a maximum amount, and subject to the requirements of the specified income tax credits, to treat any of the following income tax credits allowed to the business as either carryforwardable for a five-year period or as transferable under certain circumstances.

Thursday, May 25, 2017

  • HB 17-1072: “Concerning Human Trafficking for Sexual Servitude,” by Reps. Lois Landgraf & Polly Lawrence and Sen. John Cooke. The bill amends the language defining the crime of human trafficking for sexual servitude to include that a person who knowingly advertises, offers to sell, or sells travel services that facilitate activities defined as human trafficking of a minor for sexual servitude commits the offense of human trafficking of a minor for sexual servitude. ‘Travel services’ are defined in the bill.
  • HB 17-1190“Concerning the Limited Applicability of the Colorado Supreme Court’s Decision in St. Jude’s Co. v. Roaring Fork Club, LLC, 351 P.3d 442 (Colo. 2015),” by Rep. KC Becker and Sen. Jerry Sonnenberg. The bill provides that the decision in the St. Jude’s Co. case interpreting section 37-92-103(4) does not apply to previously decreed absolute and conditional water rights or claims pending as of July 15, 2015. The interpretation of section 37-92-103 (4) in St. Jude’s Co. applies only to direct-flow appropriations, without storage, filed after July 15, 2015, for water diverted from a surface stream or tributary groundwater by a private entity for private aesthetic, recreational, and piscatorial purpose.
  • HB 17-1209“Concerning Peace Officer Designation for the Manager of the Office of Prevention and Security Within the Division of Homeland Security and Emergency Management in the Department of Public Safety,” by Reps. Jovan Melton & Terri Carver and Sens. Rhonda Fields & John Cooke. The bill designates as a peace officer the manager of the office of prevention and security within the division of homeland security and emergency management in the department of public safety.
  • HB 17-1223“Concerning the Creation of a Fraud Reporting Hotline to be Administered by the State Auditor, and, in Connection Therewith, Establishing Referral and Reporting Processes and State Auditor Investigative Authority,” by Reps. Lori Saine & Tracy Kraft-Tharp and Sens. Cheri Jahn & Tim Neville. The bill requires the state auditor to establish and administer a telephone number, fax number, email address, mailing address, or internet-based form whereby any individual may report an allegation of fraud committed by a state employee or an individual acting under a contract with a state agency. This system is referred to in the bill as the ‘fraud hotline’ or ‘hotline’ and any report to the hotline as a ‘hotline call’.
  • HB 17-1238“Concerning the Nonsubstantive Relocation of Laws Related to Debt Management and Collection Services from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Pete Lee and Sen. Chris Holbert. The bill relocates the laws related to debt management and collection services from articles 14, 14.1, 14.3, and 14.5 of title 12.
  • HB 17-1239“Concerning the Nonsubstantive Relocation of Laws Related to Private Occupational Schools from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Cole Wist and Sen. Lucia Guzman. The bill creates a new article 64 in title 23 of the Colorado Revised Statutes and relocates the repealed provisions of article 59 of title 12 of the Colorado Revised Statutes to that article 64 and repeals article 59 of title 12 of the Colorado Revised Statutes.
  • HB 17-1240“Concerning the Nonsubstantive Relocation of the Laws Related to the Department of Public Health and Environment from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Cole Wist and Sen. John Cooke. The bill relocates Article 29.3 of title 12 to part 6 of article 1.5 of title 25 and Article 30 of title 12 to article 48 of title 25.
  • HB 17-1243“Concerning the Nonsubstantive Relocation of the Laws Related to Wholesale Sales Representatives from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Yeulin Willett and Sen. Lucia Guzman. The bill relocates article 66 of title 12, which relates to wholesale sales representatives, to title 13.
  • HB 17-1244: “Concerning the Nonsubstantive Relocation of the Laws Related to Cemeteries from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Leslie Herod and Sen. Bob Gardner. The bill relocates article 12 of title 12, which relates to cemeteries, to title 6.
  • HB 17-1245“Concerning the Nonsubstantive Relocation of the Laws Related to Public Establishments from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Mike Foote and Sen. Daniel Kagan. The bill relocates parts 1 and 3 of article 44 of title 12, which relate to public establishments, to title 6.
  • HB 17-1251“Concerning the Scheduled Repeal of Reports by Higher Education Agencies to the General Assembly,” by Rep. Dan Nordberg and Sen. Dominick Moreno. The bill addresses the reporting requirements of higher education agencies.
  • HB 17-1255: “Concerning the Scheduled Repeal of a Report by the Board of Veterans Affairs to the General Assembly,” by Rep. Dan Nordberg and Sen. Andy Kerr. The bill continues indefinitely a reporting requirement of the board of veterans affairs.
  • HB 17-1257: “Concerning the Scheduled Repeal of Reports by the Department of Natural Resources to the General Assembly,” by Rep. Jeni Arndt and Sen. Jack Tate. The bill continues indefinitely reporting requirements of the Department of Natural Resources that were scheduled to repeal according to section 24-1-136(11)(a)(I).
  • HB 17-1265“Concerning an Increase in the Total Employer Contribution for Employers in the Judicial Division of the Public Employees’ Retirement Association,” by Reps. KC Becker & Dan Nordberg and Sens. Andy Kerr & Kevin Priola. For the calendar year beginning in 2019, for the judicial division only, the bill increases the AED to 3.40% of total payroll and requires the AED payment to increase by 0.4% of total payroll at the start of each of the following 4 calendar years through 2023.
  • HB 17-1267“Concerning the Scheduled Repeal of Reports by Educational Agencies to the General Assembly,” by Rep. Jeni Arndt and Sen. Dominick Moreno. The bill addresses the reporting requirements of educational agencies.
  • HB 17-1295“Concerning the Repeal of the Governor’s Office of Marijuana Coordination,” by Rep. Bob Rankin and Sen. Dominick Moreno. The bill repeals the office of marijuana coordination, effective July 1, 2017.
  • HB 17-1298: “Concerning the Date by Which the State Personnel Director is Required to Submit the Annual Compensation Report,” by Rep. Millie Hamner and Sen. Kevin Lundberg. The bill changes the deadline for submission of the state personnel director’s annual report to September 15 of each year beginning with the 2017 report.
  • HB 17-1346“Concerning the Sale of More Than Fifteen Acres of Land at the Colorado Mental Health Institute at Fort Logan to the United States Department of Veterans Affairs for the Expansion of Fort Logan National Cemetery,” by Rep. Susan Lontine and Sen. Owen Hill. The bill grants the Department of Human Services authority to execute a land sale, at fair market value, to sell 51 additional acres, or up to 66 acres. The bill specifies that the proceeds of the sale of the additional 51 acres to the United States department of veterans affairs must be credited to the Fort Logan land sale account in the capital construction fund.
  • SB 17-222“Concerning the Nonsubstantive Relocation of the Laws Related to Fireworks from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sen. John Cooke and Rep. Yeulin Willett. The bill relocates article 28 of title 12, which relates to fireworks, to a new part 20 of article 33.5 of title 24, which title pertains to the department of public safety.
  • SB 17-225“Concerning the Nonsubstantive Relocation of Laws Related to Farm Products from Title 12 of the Colorado Revised Statutes as Part of the Organizational Recodification of Title 12,” by Sen. John Cooke and Rep. Yeulin Willett. The bill relocates part 2 of article 16 of title 12, the ‘Commodity Handler Act’, to article 36 of title 35; and part 1 of article 16 of title 12, the ‘Farm Products Act’, to article 37 of title 35.
  • SB 17-228“Concerning the Nonsubstantive Relocation of the Laws Related to Licenses Granted by Local Governments from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sen. Bob Gardner and Rep. Cole Wist. The bill relocates article 18 of title 12, which relates to dance halls, to title 30, which pertains to counties; article 25.5 of title 12, which relates to escort services, to title 29, which relates to local governments; and relocates article 56 of title 12, which relates to pawnbrokers, to title 29.
  • SB 17-242“Concerning Modernizing Terminology in the Colorado Revised Statutes Related to Behavioral Health,” by Sen. Beth Martinez Humenik and Reps. Kim Ransom & Joann Ginal. The bill updates and modernizes terminology in the Colorado Revised Statutes related to behavioral health, mental health, alcohol abuse, and substance abuse.
  • SB 17-243“Concerning the Continuation under the Sunset Law of the Motorcycle Operator Safety Training Program by the Director of the Office of Transportation Safety in the Department of Transportation, and, in Connection Therewith, Transferring the Operation of the Program to the Chief of the State Patrol Beginning in 2018,” by Sens. Nancy Todd & Randy Baumgardner and Rep. Dominique Jackson. The bill continues the motorcycle operator safety training program for 3 years, until 2020.
  • SB 17-279“Concerning Clarification of the Applicability Provisions of Recent Legislation to Promote an Equitable Financial Contribution Among Affected Public Bodies in Connection with Urban Redevelopment Projects Allocating Tax Revenues,” by Sens. Beth Martinez Humenik & Rachel Zenzinger and Reps. Matt Gray & Susan Beckman. The bill clarifies the applicability provisions of legislation enacted in 2015 and 2016 to promote an equitable financial contribution among affected public bodies in connection with urban redevelopment projects allocating tax revenues.
  • SB 17-291“Concerning Continuation of the School Safety Resource Center Advisory Board,” by Sen. Beth Martinez Humenik and Rep. Jeff Bridges. The bill implements the recommendations of the sunset review and report on the school safety resource center advisory board by eliminating the repeal date of the board and extending the board through September 1, 2022.
  • SB 17-293“Concerning Updating the Reference to a National Standard Setting Forth Certain Specifications Applicable to the Type of Paper Used to Publish the Colorado Revised Statutes,” by Sen. Daniel Kagan and Rep. Pete Lee. The bill updates the statutory reference to the current applicable alkaline minimum reserve requirements and acidity levels for uncoated paper as established by the American national standards institute and the national information standards organization.
  • SB 17-294“Concerning the Nonsubstantive Revision of Statutes in the Colorado Revised Statutes, as Amended, and, in Connection Therewith, Amending or Repealing Obsolete, Imperfect, and Inoperative Law to Preserve the Legislative Intent, Effect, and Meaning of the Law,” by Sen. Bob Gardner and Rep. Pete Lee. The bill amends, repeals, and reconstructs various statutory provisions of law that are obsolete, imperfect, or inoperative. The specific reasons for each amendment or repeal are set forth in the appendix to the bill.
  • SB 17-304“Concerning the Authority of the Joint Technology Committee,” by Sens. Angela Williams & Beth Martinez Humenik and Reps. Dan Thurlow & Jonathan Singer. The bill adds definitions of ‘cybersecurity’ and ‘data privacy’ for the purposes of the joint technology committee. In addition, the bill modifies the definition of ‘oversee’ for the purposes of the committee to be consistent with other statutory provisions.

Friday, May 26, 2017

  • SB 17-254“Concerning the Provision for Payment of the Expenses of the Executive, Legislative, and Judicial Departments of the State of Colorado, and of its Agencies and Institutions, For and During the Fiscal Year Beginning July 1, 2017, Except as Otherwise Noted,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill provides for the payment of expenses of the executive, legislative, and judicial departments of the state of Colorado, and of its agencies and institutions, for and during the fiscal year beginning July 1, 2017, except as otherwise noted.

Tuesday, May 30, 2017

  • SB 17-267“Concerning the Sustainability of Rural Colorado,” by Sens. Lucia Guzman & Jerry Sonnenberg and Reps. KC Becker & Jon Becker. The bill creates a new Colorado healthcare affordability and sustainability enterprise (CHASE) within the Department of Health Care Policy and Financing (HCPF), effective July 1, 2017, to charge and collect a healthcare affordability and sustainability fee that functions similarly to the repealed hospital provider fee. Because CHASE is an enterprise for purposes of the Taxpayer’s Bill of Rights (TABOR), its revenue does not count against the state fiscal year spending limit.

For a list of the governor’s 2017 legislative actions, click here.

Tenth Circuit: Fish & Wildlife Service Appropriately Evaluated Environmental Impact of Rocky Flats Transportation Improvement

The Tenth Circuit Court of Appeals issued its opinion in WildEarth Guardians v. United States Fish & Wildlife Service on Friday, April 17, 2015.

WildEarth Guardians, Rocky Mountain Wild, and the Town of Superior (Appellants) challenged the authority of the U.S. Fish & Wildlife Service (FWS) to construct a parkway through the former Rocky Flats nuclear facility. Rocky Flats was formerly used to manufacture nuclear weapons, and since 1989 the Department of Energy (DOE) has been tasked with a cleanup effort to remediate the land. Under the Rocky Flats Act, Congress designated authority to the DOE to manage the central area of the Flats, which was contaminated by plutonium and other hazardous materials, and transferred the remainder of the land to the FWS to become a National Wildlife Refuge. The Rocky Flats Act further provided the DOE would transfer the remainder of the land to the FWS as soon as the cleanup was complete, and set aside a large parcel of land at the Flats’ border to be used for transportation improvements (specifically, the parkway).

The DOE transferred the remaining land to the FWS in 2007, and the FWS began considering applications for the transportation project jointly with the DOE. Prior to final approval of the land exchange and construction project, the FWS issued two opinions regarding the potential consequences to the Preble’s Meadow Jumping Mouse, a threatened species with a critical habitat in the corridor. The FWS also issued an environmental assessment pursuant to its duties under the National Environmental Policy Act (NEPA). Appellants sued in district court, arguing the FWS violated the Rocky Flats Act, the NEPA, and the Endangered Species Act. The district court rejected all three claims, and Appellants timely appealed.

The Tenth Circuit considered the appeal under the Administrative Procedures Act, evaluating only whether the FWS’s actions were arbitrary and capricious. The Tenth Circuit first addressed Appellants’ argument that the FWS lacked authority to convey the land under the Rocky Flats Act. Applying the Chevron test, the Tenth Circuit found that Congress did not directly discuss whether the FWS could convey the corridor, but by effectuating the intent of Congress and taking the statutory language in context, the Tenth Circuit determined that it was reasonable to assume Congress intended the FWS to convey the corridor for transportation purposes if it had not already been conveyed by DOE. The FWS further asserted it had authority to convey the land under the Refuge Act and Fish and Wildlife Act, and the Tenth Circuit agreed. The Tenth Circuit rejected Appellants’ argument that a catch-all clause in the Rocky Flats Act was meant only to refer to the transportation conveyance, finding that the conveyance was discussed in detail in other parts of the Act, and “Congress knew how to write ‘transportation improvements'” but did not do so in the catch-all clause.

The Tenth Circuit turned next to Appellants’ arguments that the FWS violated NEPA, specifically with respect to contaminated soils, air pollution, and the protected mouse. Appellants argued the FWS erred by issuing an environmental assessment and finding of no significant impact instead of the more formal and detailed Environmental Impact Statement (EIS). Addressing the soil contaminants, particularly plutonium, the FWS relied on a 2006 EPA certification that the soil conditions were acceptable for unlimited use and unlimited exposure. Although Appellants argued the construction workers would be at greater risk for plutonium exposure, the FWS asserted that a 2011 letter from the EPA sufficiently addressed the risk faced by construction workers. The Tenth Circuit found no impropriety in the FWS’s reliance on the certification and letter and found no NEPA violation regarding the contaminated soils. The Tenth Circuit similarly dismissed Appellants’ contention of a NEPA violation regarding air pollution. Appellants argued the FWS failed to consider 2008 air quality standards when contemplating the transportation improvement. However, the FWS’s action occurred in 2006, and the Tenth Circuit found it unreasonable to expect the FWS to comply with an act that was not yet in existence. Finally, as to the protected mouse, the Tenth Circuit found support for the FWS action because the FWS considered the mouse habitat and found it would not be significantly affected by the transportation improvement. The Tenth Circuit noted the FWS appropriately issued an incidental take statement regarding the mouse.

The Tenth Circuit affirmed the district court’s rejection of Appellants’ claims. Appellants had requested leave to file a supplemental appendix, which the Tenth Circuit denied, and it also denied the FWS’s request to file supplemental rebuttal appendix documents as moot.

Colorado Court of Appeals: Transcript of Interview About Railroad Incident Was Admissible as Prior Consistent Statement to Rebut General Charge of Fabrication

The Colorado Court of Appeals issued its opinion in McLaughlin v. BNSF Railway Co. on June 7, 2012.

Federal Employers’ Liability Act—Locomotive Inspection Act—Safety Appliance Act—Personal Injury—Negligence—Strict Liability—Eggshell Doctrine—Aggravation Doctrine—Pre-existing Medical Condition—Lost Wages—Collateral Source Rule—Disability Benefits.

Defendant BNSF Railway Company (railroad) appealed the judgment entered and damages awarded after a jury found in favor of its employee, plaintiff Thomas McLaughlin, on his statutory strict liability and negligence claims. The judgment was affirmed.

McLaughlin was injured when a locomotive handbrake allegedly malfunctioned when he attempted to release it. He sued the railroad for negligence and strict liability. The railroad asserted that McLaughlin’s injuries were not caused by the handbrake, and alternatively that the jury should apportion damages because McLaughlin had preexisting conditions that the incident had merely aggravated.

The railroad contended that the district court erred by (1) admitting a transcript of the railroad’s claims agent’s post-incident interview of McLaughlin because it contained hearsay, and (2) denying the railroad’s motion for a new trial based on this admission. The railroad’s counsel offered a page of the transcript to challenge McLaughlin’s testimony about the handbrake tension or pressure, and also more generally challenged his description of the incident and his injuries. Consequently, the entire transcript of McLaughlin’s interview about the incident was admissible as a prior consistent statement to rebut the general charge of fabrication. Alternatively, it was admissible to provide context for McLaughlin’s testimony on cross-examination that he had not reported experiencing tension or pressure in operating the handbrake. Because it was not offered for the truth of the matter asserted, it was not inadmissible hearsay.

The railroad also contended that the district court erred by improperly instructing the jury on the eggshell and aggravation doctrines. The evidence showed that although McLaughlin’s doctors had diagnosed him with pre-existing degenerative disc disease, other age-related deteriorating back conditions, and a pre-existing hernia from his childhood, he had not experienced any symptoms before the incident. The eggshell doctrine can apply in Federal Employers’ Liability Act (FELA) cases involving pre-existing conditions. The aggravation doctrine applies when the pre-existing condition was symptomatic before the incident giving rise to the plaintiff’s claim. The eggshell doctrine instruction was appropriate here because (1) there was no evidence that McLaughlin had suffered any pain or symptoms from his back conditions or hernia before the handbrake incident; and (2) there was evidence that his pre-existing conditions were made symptomatic or exacerbated by the incident. In contrast, the evidence did not support giving the aggravation instruction or the modified verdict form. However, any error was harmless because it was in the railroad’s favor.

The railroad further argued that the district court erred by denying its motion in limine to preclude McLaughlin from presenting evidence of lost wages because of his receipt of Railroad Retirement Act (RRA) disability benefits or to reduce the damages award by the amount of those benefits. RRA payments, such as those received by McLaughlin here, are collateral source benefits and may not be offset against a FELA award. Therefore, the district court did not err in denying the motion in limine.

Summary and full case available here.

Tenth Circuit: Venue Proper and Sufficient Evidence to Show Copilot Was Under the Influence of Alcohol During Flight

The Tenth Circuit Court of Appeals published its opinion in United States v. Cope on Tuesday, May 1, 2012.

The Tenth Circuit affirmed the district court’s conviction. Petitioner was convicted of one count of operating a common carrier—a commercial airplane—under the influence of alcohol. He now challenges his conviction based on improper venue, insufficiency of the evidence, and improper reliance on federal regulations.

Petitioner argues that there is no evidence that he was under the influence of alcohol in Colorado and thus venue in the District of Colorado was improper. The Court disagreed, finding that because he was operating a common carrier in interstate commerce, it is immaterial whether he was “under the influence of alcohol” in Colorado. “Venue is proper in any district through which Mr. Cope traveled on the flight, including the District of Colorado.”

Petitioner also argues that the district court put improper weight on the breathalyzer tests, which he contends are invalid, and that there was insufficient evidence that he was “under the influence of alcohol.” The Court found that the district court was entitled to weigh competing testimony about the tests. Additionally, his “high BAC combined with the evidence that [Petitioner] drank a significant amount of alcohol the night before the flight, implicitly admitted that he would fail a breathalyzer test, smelled of alcohol, and had red eyes and a puffy face before the flight, is sufficient evidence for a reasonable fact-finder to find that [Petitioner] was ‘under the influence of alcohol.'”

Colorado Supreme Court: Trial Court Must Decide Before Trial if Party Is Immune from Suit Pursuant to Aviation and Transportation Security Act

The Colorado Supreme Court issued its opinion in Air Wisconsin Airlines Corp. v. Hoeper on March 19, 2012.

Defamation—Statutory Immunity—Actual Malice.

The Supreme Court affirmed the court of appeals’ judgment and held that a trial court must decide before trial if a party is immune from suit pursuant to the Aviation and Transportation Security Act (ATSA), 49 U.S.C. § 44941. The Court held that (1) Air Wisconsin Airlines Corporation was not immune from suit for defamation under the ATSA; (2) the record showed clear and convincing evidence to support a finding of actual malice; (3) Air Wisconsin’s statements were not protected as opinion; and (4) the evidence was sufficient to support the jury’s determination that the statements were false.

Summary and full case available here.

DORA Releases Information Regarding New Transportation Rules Going into Effect Today

DORA issued a press release on Wednesday, August 10, 2011 regarding new Public Utilities Commission (PUC) transportation rules. The emergency rules implement two bills that were enacted by the Colorado Legislature earlier this year that became effective today.

The PUC adopted emergency rules last week that will remain in place for 210 days, or until permanent rules become effective, whichever period is shorter. Emergency rules were necessary to ensure that there was no lapse of regulations as a result of the recent statutory changes.

The new rules implement Senate Bill 11-180, which amended the authority of taxicabs to pick up passengers outside of their assigned geographic areas, and House Bill 11-1198, which reorganized the statutes governing motor carriers and made changes to regulatory authority granted to the PUC.

SB 11-180 permitted taxis operating in Colorado to pick up passengers at any point in the state when the taxi has dropped off passengers in close proximity to that point, except if that drop-off point is an airport. In the emergency rules, the PUC defined “close proximity” as within a 1-mile radius of the drop-off point, and within 20 minutes of the drop-off time.

HB 11-1198 repealed Articles 10, 11, 13, 14 and 16 of Title 40 of the Colorado Revised Statutes and created a new Article 10.1 in Title 40, organized into five parts covering the various types of transportation providers and services. In addition to reorganizing the statutes, the new law made certain substantive changes requiring emergency rule implementation, including:

  • Clarifying the services authorized under a children’s activity bus permit;
  • Transferring all safety jurisdiction over household goods movers from the PUC to the Colorado Department of Public Safety;
  • Standardizing provisions relating to the conduct of fingerprint-based criminal history record checks, both on initial issuance and resubmission, as a condition of continued qualification to drive for a motor carrier; and
  • Requiring towing carriers to maintain workers’ compensation insurance and post a $50,000 bond to ensure payment of any civil penalties assessed by the Commission.

The emergency rules can be viewed on the PUC website.

Department of Transportation Amends Rules Regarding Practice and Procedure Before the Tranportation Commission

The Colorado Department of Transportation has amended the rules of practice and procedure before the Transportation Commission. The Transportation Commission Rules have not been revised in twenty years. The proposed revisions were made to correct statutory references and to bring the rules in line with current Commission practice.

A hearing on the amended rules will be held on Wednesday, August 31, 2011 at 4201 E. Arkansas Avenue, Shumate Building, Mt. Evans Conference Room, Denver, Colorado 80222, beginning at 9:00 am.

Full text of the proposed changes with line edits to the rules can be found here. Further information about the rules and hearing can be found here.

Governor Hickenlooper Announces Appointments to Transportation Commission

On Tuesday, June 28, 2011, Governor John Hickenlooper announced his appointments to the Transportation Commission.

The Transportation Commission formulates general policy for the Colorado Department of Transportation with respect to the management, construction, and maintenance of public highways and other transportation systems in the state. The commission also works to assure that the preservation and enhancement of Colorado’s environment, safety, mobility, and economics is considered in the planning of all transportation projects.

These appointments are dependent upon Senate confirmation. The members appointed are:

  • Heather M. Barry, of Westminster, to serve as a commissioner from the fourth district; term to expire July 1, 2015.
  • Kathleen R. Gilliland, of Livermore, to serve as a commissioner from the fifth district; term to expire July 1, 2015.
  • Kathy I. Connell, of Steamboat Springs, to serve as a commissioner from the sixth district; term to expire July 1, 2015.
  • Leslie W. Gruen, of Colorado Springs, to serve as a commissioner from the ninth district; term to expire July 1, 2015.
  • Kimbra L. Killin, of Holyoke, to serve as a commissioner from the eleventh district; term to expire July 1, 2015.

The full press release from the Governor’s office concerning these commission appointments can be found here.

State Judicial Issues New Forms Regarding E-470 Appeals

The Colorado State Judicial Branch has issued several new and revised forms, instructions, and lists this week. Among the new releases are two forms concerning E-470 appeals. Practitioners should begin using the new forms immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. Many are also available as Word templates; download templates from State Judicial’s individual forms pages, or below.

Appeals

  • JDF 234 – “Notice of Appeal and Designation of Record – E-470 Case” (3/11)
  • JDF 235 – “Notice of Record Certified to County Court – E-470 Case” (3/11)