March 26, 2019

Archives for July 2013

Civil Access Pilot Project Extended One Year by Chief Justice Directive

The Colorado State Judicial Branch released amended CJD 11-02 regarding the Colorado Civil Access Pilot Project in July 2013. The amendments to the CJD extend the pilot project for one year in order to provide additional data for the court to evaluate. Extending the pilot project will give the court more time to determine if the pilot project achieved its stated goals, and to decide whether changes to the Colorado Rules of Civil Procedure are indicated.

Currently, the Civil Access Pilot Project applies only to certain cases in the First, Second, Seventeenth, and Eighteenth Judicial Districts. The pilot project applies to business cases, including breach of contract, business torts, actions governed by the Uniform Commercial Code, commercial transactions with banks, actions involving commercial real property, private actions for securities fraud, and products liability actions, among others.

The pilot project began January 1, 2012, and is currently slated to apply to all cases filed on or before December 31, 2014. The effects of the pilot project will be studied by IAALS, the Institute for the Advancement of the American Legal System.

Tenth Circuit: Unpublished Opinions, 7/30/13

On Tuesday, July 30, 2013, the Tenth Circuit Court of Appeals issued no published opinions and four unpublished opinions.

Wilson v. Workman

Moua v. Colvin

Greene v. Impson

Beauclair v. Goddard

No case summaries are provided for unpublished opinions.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

 

 

Tenth Circuit: Unpublished Opinions, 7/29/13

On Monday, July 29, 2013, the Tenth Circuit Court of Appeals issued no published opinions and seven unpublished opinions.

Smith v. Meyer

Cooper v. Wilson

Rangel-Perez v. Holder

Shopteese v. Waddington

United States v. Ijom-Brito

United States v. Amaya

United States v. London

No case summaries are provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 7/26/13

On Friday, July 26, 2013, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

United States v. Slinkard

No case summaries are provided for unpublished opinions.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

Volunteers Needed to Help Hand Out School Supplies at DBA-CAN Event

Each year, the Denver Bar Association Community Action Network hosts a school supply drive to benefit the Educational Outreach Program through Denver Public Schools. The school supply drive helps underprivileged kids receive tools to ensure that they are ready for and excited about school.

Today, July 26, 2013, is the last day of the DBA-CAN school supply drive. Donations of school supplies can be dropped off at the CBA and CLE offices during business hours. All standard school supply items are needed, including backpacks, crayons, markers, pencils, erasers, pens, rulers, glue, pocket folders, paper, notebooks, binders, geometry sets, and boxes of tissue. Click here for a complete list of needed supplies.

There are other volunteer opportunities related to the school supply drive. On August 1, volunteers are needed to sort through the donated supplies. On August 3, volunteers are needed to stuff backpacks for donation. Additionally, on Saturday, August 10, at Whittier Elementary School in Denver (25th & Downing), the DBA-CAN and community volunteers will hand out the donated school supplies. This will be a fun carnival-themed day and many volunteers are needed for the carnival booths.

If you can volunteer for any of the activities, click here. For more information, contact Heather Clark (hclark@cobar.org) or Kate Schuster (kschuster@cobar.org). Please feel free to forward this information—DBA-CAN needs many volunteers!

Rules Governing Admission to the Bar Amended by Colorado Supreme Court

On Thursday, July 25, 2013, the Colorado State Judicial Branch released Rule Change 2013(09), concerning Chapter 18 of the Colorado Rules of Civil Procedure, Rules Governing Admission to the Bar. The rule change was approved on June 27 and is effective September 1, 2013.

The change to Rule 201.2, “Board of Law Examiners,” clarifies where fees collected under the rule will be held and for what purposes they will be used. The changes to Rule 221, “Out-of-State Attorney — Pro Hac Vice Admission,” increase the fee for pro hac vice admission from $250 to $300. The changes to Rule 222, “Single Client Counsel Certification,” increase the fee for single client counsel certification from $725 to $1,000.

Rule 227 was changed extensively. Some of the changes to Rule 227 involve increasing attorney registration fees. The fee for an active Colorado attorney who has been practicing more than three years will increase from $225 to $325. Fees for attorneys who are in their first three years of practice increased from $180 to $190. Fees for inactive attorneys also increased, from $95 to $130.

The changes to Rule 227 also include clarification about how the fees are used, what should be included on a statement, registration of non-attorney judges, and other minor changes.

For a copy of Rule Change 2013(09), click here. For all of the Colorado Supreme Court’s rule changes, click here.

Tenth Circuit: Unpublished Opinions, 7/25/13

On Thursday, July 25, 2013, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.

Payton v. Werholtz

Rollie v. Falk

Glossip v. Trammell

Banks v. Doe

Winston v. Trammell

United States v. Jones

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

 

Tenth Circuit: EPA Did Not Act Arbitrarily or Capriciously in Denying Petition for Objection to Permit Issued to Coal-Fired Power Station

The Tenth Circuit Court of Appeals published its opinion in Wildearth Guardians v. United States Environmental Protection Agency on Tuesday, July 23, 2013.

Petitioner Wildearth Guardians sought review of an order of the Environmental Protection Agency denying in part Petitioner’s petition for an objection to an operating permit issued by the Colorado Department of Public Health and Environment (CDPHE) to Intervenor Public Service Company of Colorado for its coal-fired power station located in Colorado. In its petition for an objection, Petitioner argued that the permit needed to include a plan to bring the power station into compliance with the Clean Air Act’s Prevention of Significant Deterioration (PSD) requirements. Petitioner contended these PSD requirements, which apply to the construction or “major modification” of a stationary source of air pollution had been triggered when the station underwent major modifications. For support, Petitioner relied in part on a Notice of Violation (NOV) issued to Intervenor by the EPA in 2002. However, the EPA denied Petitioner’s petition for an objection, holding that the NOV was insufficient to demonstrate noncompliance with the Clean Air Act and that Petitioner’s additional evidence also failed to demonstrate a violation. Petitioner sought review of the EPA’s denial of the petition.

The Tenth’s Circuit’s review of the EPA’s order is governed by the Administrative Procedure Act, and the court accordingly will not set aside the agency’s decision unless it is procedurally defective, arbitrary or capricious, or manifestly contrary to statute.

The EPA must issue an objection if a petitioner demonstrates that the permit is not in compliance with the requirements of the Clean Air Act. A central dispute in this case was the question of what was required for the petitioner to “demonstrate” noncompliance. To resolve the dispute, the court had to first consider whether the agency’s interpretation of this requirement was entitled to any deference.

To the extent a statute speaks clearly to a question at issue, the court must give effect to the unambiguously expressed intent of Congress. If, however, a statute is silent or ambiguous with respect to an issue, the agency’s interpretation of the statute is entitled to some degree of deference. Indeed, the statute at issue does not resolve the questions that are part and parcel of the Administrator’s duty to evaluate the sufficiency of this petition: the type of evidence a petitioner may present and the burden of proof guiding the Administrator’s evaluation of when a sufficient demonstration of noncompliance has occurred. The statutory silence suggests that Congress delegated to the EPA some discretion in determining whether a petitioner has presented sufficient evidence to prove a permit violates clean air requirements, and thus the court concluded some level of deference was warranted.

Viewing the record as a whole, the Tenth Circuit was not persuaded that the EPA acted arbitrarily or capriciously in holding that Plaintiff had not demonstrated noncompliance. Thus, under its deferential standard of review, the court AFFIRMED the EPA’s denial of the petition on this ground.

Tenth Circuit: BLM’s Decision to Grant Grazing Permit Not Arbitrary and Capricious

The Tenth Circuit Court of Appeals published its opinion in Western Watersheds Project v. Bureau of Land Management on Tuesday, July 23, 2013.

Petitioner-Appellant Western Watersheds Project (“WWP”), a nonprofit public interest organization, challenged a Bureau of Land Management (“BLM”) decision to grant a 10-year grazing permit to LHS Split Rock Ranch, LLC (“Split Rock”) for four federal public land allotments in central Wyoming (“the Split Rock allotments”). Split Rock is a Delaware limited liability company that operates a ranch in central Wyoming. WWP asserted that BLM’s decision to grant the grazing permit was arbitrary and capricious because BLM had previously concluded that past grazing was a substantial cause of serious environmental degradation on the Split Rock allotments. The district court had granted summary judgment in favor of BLM and WWP appealed. Split Rock responded as Intervenor-Appellee.

The Tenth Circuit’s standard of review under the APA had to be very deferential. A presumption of validity attaches to agency action and the burden of proof rested with WWP.

WWP raised two issues on appeal. First, it argued that the Environmental Assessment (EA) failed to evaluate a reasonable range of alternatives as required under the National Environmental Policy Act (NEPA). Second, it argues that BLM failed to take the required “hard look” at the potential environmental consequences of its actions. After discussing each of these issues, the Tenth Circuit concluded that BLM’s decision was not arbitrary and capricious.

The Tenth Circuit noted that WWP raised serious questions about BLM’s decisions regarding the Split Rock grazing permit that made the case difficult even under the highly deferential review standard. The record revealed troubling problems with the Split Rock allotments, and even BLM implicitly acknowledged that its Proposed Decision was unlikely to remedy these problems quickly. Nevertheless, it was not within the Court’s authority to resolve whether BLM selected the best or wisest option, and Court could not substitute its judgment for that of the BLM.

WWP argued that the (EA) failed to evaluate a reasonable range of alternatives as required by NEPA because it analyzed only three alternatives. WWP pointed to two problems: failure to analyze the No Action alternative and failure to consider an aggressive, i.e., environmentally protective, alternative. WWP argued that BLM was required to include a detailed analysis of the No Action alternative under 40 C.F.R. § 1502.14. The problem was that § 1502.14 did not apply. Further, the Court found BLM’s effort to balance competing objectives sufficient to explain its failure to pursue aggressive environmentally protective alternatives. The Court could therefore not conclude that the range of alternatives BLM selected rendered the EA arbitrary and capricious.

Next WWP argued that the EA failed to take a “hard look” at the environmental consequences of its Proposed Decision as required by NEPA. Specifically, WWP argued that the EA failed to take a hard look at carrying capacity (maximum stocking rate possible without inducing damage to vegetation or related resources) and at the effects of its own Proposed Decision. Mindful that its deference is most pronounced with respect to technical or scientific matters within the agency’s area of expertise, the Tenth Circuit could not say that it was arbitrary and capricious for BLM to conclude that the stocking level in the Proposed Decision would not exceed carrying capacity. The Court’s review of the EA and the Proposed Decision indicated that BLM analyzed the various components of the plan sufficiently to meet NEPA’s hard look requirement and did not act arbitrarily or capriciously.

AFFIRMED.

Tenth Circuit: Unpublished Opinions, 7/24/13

On Wednesday, July 24, 2013, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.

United States v. Morones

Arbuckle v. United States

Ayala v. Hatch

McMullin v. Bravo

United States v. Claycomb

United States v. Tena-Arana

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

Colorado Court of Appeals: Announcement Sheet, 7/25/2013

On Thursday, July 25, 2013, the Colorado Court of Appeals issued no published opinions and 43 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Supreme Court Chief Justice Michael Bender to Retire

ChiefJusticeBenderThe Colorado State Judicial Branch released a formal announcement that Colorado Supreme Court Chief Justice Michael Bender will retire January 7, 2014, on his 72nd birthday. The Colorado Constitution mandates that judicial officers retire by the age of 72.

As reported by Legal Connection, Justice Nancy Rice will become the new Chief Justice upon Justice Bender’s retirement. The Colorado Supreme Court Nominating Commission will meet on October 8 and 9 to select and interview nominees for the vacancy on the supreme court. Qualified applicants will be registered electors in the State of Colorado and must have been admitted to practice law in Colorado for five years.

Application forms are available from the ex officio chair of the nominating commission, Justice Bender, or on the State Judicial webpage. Applications must be submitted no later than 4 p.m. on September 3, 2013. Any person wishing to suggest a candidate for the vacancy may do so by submitting a letter to any member of the nominating commission with a copy to the ex officio chair. Those letters must be submitted no later than 4 p.m. on August 19, 2013.

Additional instructions for applications for appellate court vacancies can be found here, as can contact information for members of the Colorado Supreme Court Nominating Commission.