August 24, 2019

Archives for November 8, 2011

Obama Signs New Law to Permit Year-Long Recreation Opportunities on Forest Service Ski Areas

On Monday, November 7, 2011, President Obama signed H.R. 765, the “Ski Area Recreational Opportunity Enhancement Act of 2011,” into law. The new legislation clarifies the authority of the Secretary of Agriculture regarding additional recreational uses of National Forest System land that is subject to ski area permits.

According to Summit Daily, the Ski Area Recreational Opportunity Enhancement Act “permits year-long recreation opportunities on U.S. Forest Service ski areas, boosting rural economies while continuing to maintain stringent environmental safeguards.”

The new legislation amends the National Forest Ski Area Permit Act of 1986, which allowed only Nordic and alpine skiing. Under the new legislation, other snow sports may be permitted on National Forest System lands, as well as year-round activities. Potential permitted activities may include zip lines, mountain bike terrain parks and trails, Frisbee golf courses and ropes courses.Currently, the Forest Service averages 27 million visits annually to ski areas. This has contributed $4 billion every winter and created approximately 80,000 full-, part-time and seasonal jobs in hard-hit rural communities. Under the new legislation, the Forest Service anticipates roughly 600,000 more summertime visits that may create and sustain up to 600 more full-, part-time and seasonal jobs. The addition of summer recreation is expected to infuse almost $40 million of direct funding into local mountain communities.

Protecting natural resources will remain a priority and year-long facilities will be subject to the same review and approval processes as those for ski facilities such as the construction of ski lifts and ski trails.

Not all recreation activities will be permitted. Those considered to be destructive to the natural environment will be excluded, including tennis courts, water slides and water parks, swimming pools, golf courses and amusement parks.

“The national forests have always been some of America’s greatest playgrounds,” said U.S. Forest Service chief Tom Tidwell. “It is exciting that our ski areas will now be able to offer more recreational opportunities and economic benefits.”

Colorado Supreme Court to Live Stream Audio from Reapportionment Oral Arguments

The Colorado Supreme Court will stream the audio live online from the oral arguments of the hearing for the reapportionment of the Colorado General Assembly. Oral arguments on the contentious issue are scheduled for November 9, 2011, from 9:00 am to 11:00 am at the Old Supreme Court Courtroom in the Capitol Building.

Click here to listen to the oral arguments live.

Aaron Solomon: The Colorado Supreme Court Defines a Broad New Exception to Rule 26

Editor’s Note: The Colorado Supreme Court issued its opinion in In re Averyt v. Wal-Mart Stores, Inc. on November 7, 2011.

In Averyt v. Wal-Mart Stores, Inc., (No. 11SA66) the Colorado Supreme Court held that publicly available documents need not be disclosed pursuant to Rule 26.

In this case the plaintiff slipped and injured herself on a grease spill at a Wal-Mart store. At trial, as it had throughout discovery, Wal-Mart claimed that no such grease spill had occurred. The plaintiff impeached this testimony with questions based on a previously unproduced report from the City of Greeley documenting a grease spill that it had located during the trial. After its objection to the use of the report was denied by the trial court, Wal-Mart entered the report into evidence while rehabilitating its witness. The next morning, Wal-Mart informed the plaintiff that it had located a witness who remembered the spill, and numerous documents corroborating the existence of the spill. After it (not surprisingly) lost at trial, Wal-Mart sought and received a mistrial based in part on the plaintiffs’ purported failure to disclose the Greeley report.

The Colorado Supreme Court held that CRCP 26 did not apply to the Greeley report (and hence there was no duty to disclose it) because it was a public document equally available to all parties. It further held that “nothing in Rule 26 requires disclosure by a party of documents which it would not be required to produce, if requested, under C.R.C.P. 34.” The court held that “[w]e expressly adopt this rule because a contrary rule would require continuing disclosure by one party of voluminous information that the party discovers in the public domain . . . . The burden imposed upon the parties by such continuing disclosure outweighs any benefit of expediency gained by automatically sharing the information where, as here, the public information is readily available and equally accessible to both parties.”

Justice Marquez, joined by Justice Coats, concurred with the judgment in part and wrote separately to express the belief that the rule announced by the Court was too broad and allowed parties to hide responsive and relevant documents in their possession so long as the documents were “public.” The Justice expressed the concern that such documents might be exempt from disclosure even when they went to “disputed issues of knowledge.”

Interestingly no one commented on the irony of Wal-Mart, which appears to have violated its discovery obligations by concealing (or at least failing to locate) documents and a witness relating to the spill, being the party complaining about a failure of disclosure.

Aaron Solomon is an associate at Hale Westfall and focuses his practice on both commercial litigation and public policy/appellate law. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on November 7, 2011.

Colorado Supreme Court: Exception to Physician-Patient Privilege when Patient Institutes Action Arising Out of Physician’s Care or Treatment of Patient

The Colorado Supreme Court issued its opinion in In re Ortega v. Colorado Permanente Medical Group, P.C. on November 7, 2011.

Physician–Patient Privilege—Health Maintenance Organization—Confidentiality Requirements.

The Supreme Court held that CRS § 13-90-107(1)(d)(I) provides an exception to the physician–patient privilege codified in CRS § 13-90-107(1)(d). The exception applies when a patient institutes an action against a physician, and that action arises out of or is connected with the physician’s care or treatment of the patient. In that instance, the information acquired by the physician is not privileged.

The Court also held that CRS § 10-16-423 does not govern the physician–patient privilege; instead, it governs the confidentiality of health maintenance organization (HMO) members’ information. CRS § 10-16-423 controls the confidentiality of enrollee information provided to HMOs by enrollees and medical providers, and contains an exception for the disclosure of relevant information in the event a claim or litigation occurs between the HMO and the enrollee.

Finally, the Court held that the trial court did not abuse its discretion when it denied plaintiff’s motion for a protective order and determined that plaintiff’s electronic medical record was relevant to preparing a defense. Accordingly, the Court discharged the rule to show cause.

Summary and full case available here.

Tenth Circuit: Immigration Sentencing in Non-Fast-Track District Can Vary from Applicable Guideline Based on Sentence Disparities; Defendant Bears Burden of Showing Entitlement to Variance

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lopez-Macias on Monday, November 7, 2011.

The Tenth Circuit affirmed the district court’s decision and sentence. Petitioner, a citizen of Mexico, was arrested following a routine traffic stop on suspicion of marijuana trafficking. “Immigration and Customs Enforcement officials interviewed [Petitioner[ while he was in Colorado custody and determined his illegal status. A federal grand jury subsequently indicted Defendant in the District of Colorado for illegal reentry into the United States after deportation following an aggravated felony conviction.” Petitioner appeals the sentence imposed by the district court.

The Tenth Circuit was presented with with two questions related to the presence of fast-track programs in some federal districts, but not others. “In the 1990s, federal prosecutors handling large numbers of illegal re-entry and other immigration offenses developed early disposition or ‘fast-track’ programs in states along the United States border with Mexico. In 2003, Congress endorsed such programs, apparently for border districts and elsewhere, in a broadly-worded provision of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (‘PROTECT Act’). . . . The Sentencing Commission then promulgated U.S.S.G. § 5K3.1: ‘Upon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the [Attorney General] and the United States Attorney for the district in which the court resides.'”

The first question the Court considers is “whether a sentencing court in a non-fast-track district has the discretion to consider sentence disparities caused by the existence of fast-track programs in other districts, and, based thereon, vary from the applicable guideline range for a defendant charged with an immigration offense.” If so, a second issue is “whether the apparently nebulous eligibility requirements for fast-track programs relieve a defendant charged with an immigration offense in a non-fast-track district of the burden of showing entitlement, at least in some sense, to sentencing consistent with a fast-track program.” The Court held that where the circumstances warrant, a district court in a non-fast-track district has the discretion to vary from a defendant’s applicable guideline range based on fast-track sentence disparities. But a defendant “bears the initial burden of showing entitlement, in some sense, to a variance based on fast-track sentence disparities.” Given the facts presented in this case, the Court declined to decide the precise extent of a defendant’s burden. However, the Court did provide that a “‘generalized argument’ in which a defendant simply points to the disparity created by fast-track programs ‘is alone not sufficient to justify such a variance.'”

Tenth Circuit: Unpublished Opinions, 11/7/11

On Monday, November 7, 2011, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.


United States v. Kort

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.