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Archives for August 12, 2014

Is There a Better Exit Strategy Than Death?—Part I: The Interviews: Kyle Velte—Less Stress, More Time With Her Children

Editor’s Note: This article appeared in the August 2014 issue of The Colorado Lawyer. This is the second part of a 5-part series on Legal Connection. Click here for the introduction, and stay tuned for more interviews.

Sandgrund-VelteBy Ronald M. Sandgrund, Esq., InQ.

The Inquiring Lawyer (InQ.): Kyle, how old were you when you first felt that practicing law was what you wanted to do as a career?

Kyle: I did not think about practicing law until after college and I entered the working world. I had planned on being a college professor, and I was taking a few years off before applying to PhD programs. I worked at the National Organization for Women in Washington, DC, where one of my jobs was to run the internship program. As part of that program, I took interns to a U.S. Supreme Court argument. One of the arguments I saw was Romer v. Evans. When I saw Jean Dubofsky argue on behalf of the gay, lesbian, bisexual, and transgender plaintiffs, I then and there decided to go to law school and become a lawyer.

InQ.: How old were you when you started practicing law full-time?

Kyle: I had two judicial clerkships after law school—one at the age of 28, the other at 30. (I completed an LLM in between clerkships.) I entered a firm when I was 31.

InQ.: How long did you practice law full-time?

Kyle: Nine years.

InQ.: How old were you when you first had any serious thoughts about exiting the full-time practice of law? Did something in particular prompt this thought?

Kyle: A few years into practice—around the age of 35—I began thinking about exiting to teach law. My pre-law school plan had been to be a college professor, so teaching law always loomed in the back of my mind as something I would like to do.

InQ.: How old were you when you first started making concrete plans to exit the full-time practice of law, and what was your thought process?

Kyle: When I was 40 years old (eight-and-a-half years into practice), I had the chance to teach an adjunct class at the University of Denver School of Law (Denver Law). I did that while continuing to practice full-time. I loved teaching. My thought process was to try adjunct teaching first, before deciding to make the big move, to see if I really did like it as much as I expected to. I did.

InQ.: Why did you want to leave the full-time practice of law?

Kyle: For several reasons. Although I was in a regional, mid-sized litigation firm, where my focus was commercial litigation, with fantastic colleagues and interesting and engaging work, I was growing tired of litigation as a whole. The constant conflict and stress, the travel, and the unpredictable and sometimes very large number of hours (particularly around trial) began to wear me down. In addition, I have children and wanted a more consistent, less stressful job to spend more time with them.

InQ.: Did you develop any sort of plan as to how to accomplish this goal?

Kyle: My plan was to try to teach as an adjunct first. I was able to do that, which in turn led me to my current position at Denver Law.

InQ.: How long did you expect it would take you to implement your plan?

Kyle: I wasn’t entirely sure. I had planned to continue teaching as an adjunct while practicing for at least as long as it took me to write and publish a law review article, which is highly encouraged to enter academia. However, I didn’t have to wait even that long, because my current position opened just a few months after I finished teaching my first adjunct class. I just got lucky on timing. The position I’m currently in opened in the fall of 2011, and I finished teaching my adjunct class in April 2011. I saw the opening, applied, and by November 2011, I was a full-time faculty member of Denver Law’s Legal Externship Program.

InQ.: What sort of obstacles cropped up, if any, impeding the plan’s implementation?

Kyle: The biggest obstacle was financial: figuring out how to manage a significant pay cut.

InQ.: How well did you manage this obstacle, and what strategies did you employ?

Kyle: I worked with a financial planner and figured out a way to make the financial transition.

InQ.: At any point in the process of implementing your plan, did you think about reversing course?

Kyle: Only briefly, when the financial obstacle had not been overcome. But I never reversed course. Except for a pro bono matter that ended in March 2013, I have not practiced law since November 2011.

InQ.: Some say that the biggest obstacle to retreating from the full-time practice of the law is the inability to imagine what life would be like not practicing law full-time. Others say it is a fear of not being able to fill the time. Still others say it is a concern of not having enough money later in life. What do you think of each of these suggested impediments and how, if at all, did they affect your thinking?

Kyle: The first two concerns never entered my mind. I knew that I would find enjoyable and fulfilling work in teaching law. The money issue was the biggest challenge, and it gave me great pause.

InQ.: How did your significant other—if you had one—react during the course of exploring options other than the full-time practice of law?

Kyle: As a single parent without a significant other, making this change was a particular challenge for me. No matter how wonderful a private firm is, litigation never stops, and when you’re in trial, everything else in your life comes to a standstill. Now that I am out of practice, I have a very predictable schedule; my stress level is way lower (which makes me a better parent); and I’m much more involved in my kids’ lives, volunteering in the classroom, chaperoning field trips, being home at night to help with homework, etcetera.

InQ.: What sort of activities have you embraced to fill the time you formerly devoted to the full-time practice of law, and how satisfying have those activities been?

Kyle: I still work full-time, so there is no need to fill any time. In addition, because I am no longer a litigator and no longer have a billable-hours requirement, I have been able to do more than when I was practicing. I now sit on four boards of directors and I am active in specialty bar associations.

InQ.: During your decision-making and decision-implementing process, what mistakes, if any, do you feel you made?

Kyle: Looking back, I don’t have any regrets and don’t feel like I made any mistakes.

InQ.: What, if anything, would you do differently?

Kyle: Nothing!

InQ.: What assumptions did you make that turned out to be mostly or wholly incorrect?

Kyle: I had assumed that it would be difficult to find an opportunity outside practice that would still be engaging to me and also one for which I would be qualified. However, I also assumed that if I were to find such a position, I would be able to find a fulfilling and satisfying professional experience outside practice. The first assumption was wrong: there are, contrary to my assumption, many non-practice opportunities that are engaging, interesting, and fulfilling, and for which practicing attorneys will be given serious consideration. My assumption that I could be professionally satisfied outside practice was completely accurate. In fact, I’m more satisfied now.

InQ.: Did any tensions arise between you and others, including your children, as a result of you retreating from the full-time practice of law?

Kyle: No.

InQ.: How happy were you when practicing law full-time and how happy are you now?

Kyle: I was content while practicing and sometimes happy. I am extremely happy with my career now, and often think to myself: “I really love my job and am so lucky to have it.”

InQ.: How much did financial considerations influence your decision to retreat from the full-time practice of law?

Kyle: As noted above, it was an obstacle—and a scary one—but I overcame it and have learned lessons about what I really need to be happy.

InQ.: In retrospect, did you give financial considerations too much, too little, or just the right amount of weight?

Kyle: Just the right amount.

InQ.: How, if at all, did having children affect your decision-making process?

Kyle: It impacted it for sure, because I had to make sure that I could still provide for them. Once I figured that out, I knew that leaving the practice of law would be a big benefit to them, as well as to me.

Tenth Circuit: Forest Service’s Management Plans Did Not Violate National Forest Management Act or Environmental Protection Act

The Tenth Circuit Court of Appeals issued its opinion in Biodiversity Conservation Alliance v. Jiron on Tuesday, August 5, 2014.

Biodiversity sued the U.S. Forest Service in two separate cases involving Forest Service actions in the Black Hills National Forest. In the first case, filed in the U.S. District Court for the District of Wyoming, Biodiversity claimed the Forest Service failed to comply with various statutes and regulations. The district court denied Biodiversity’s petition for review. In the second case, filed in the U.S. District Court for the District of Colorado, Biodiversity argued the Forest Service had violated a settlement agreement and moved for relief. The district court dismissed Biodiversity’s motion. Biodiversity appealed both rulings and the cases were consolidated for appellate review.

In 1976, the National Forest Management Act (NFMA) took effect, and the Forest Service created a plan under which it managed the Black Hills National Forest. In 1992, the Forest Service decided to revise the plan, and in 1997 it issued its revised forest plan. Biodiversity challenged the 1997 plan in an administrative proceeding, and its appeal was decided by the Chief of the Forest Service in 1999. The Chief determined that although most of the plan complied with the NFMA and the National Environmental Protection Act (NEPA), there were some shortcomings, which the Chief described specifically in his ruling.

Before the Chief issued his 1999 ruling, the Forest Service began implementing its 1997 forest plan. Biodiversity administratively challenged some aspects of the plan, and eventually Biodiversity and the Forest Service entered into a settlement agreement. The settlement agreement included Phase I and Phase II plans for implementation, and the Colorado federal district court retained jurisdiction to enforce the settlement agreement. Phase I was implemented in 2001, and the Forest Service incorporated some of the Chief’s recommendations from the 1999 ruling. From 2001 through 2005, the Forest Service conducted a more detailed analysis of the Black Hills National Forest in preparation for the Phase II amendment. Also during this time, several wildfires ravaged the forest, and a mountain pine beetle infestation spread from 5,200 acres to 100,000 acres. As a result, the Phase II amendment was adjusted to address fire and insect issues.

The Forest Service considered six alternatives to implement the 1997 plan, and ultimately chose the sixth alternative even though some species would be adversely affected because the sixth plan would reduce wildfire risks and reduce the pine beetle infestation. In October 2005, the Forest Service began implementing Alternative 6 as the Phase II amendment. In 2006, Biodiversity challenged the Phase II amendment, but the Chief upheld it. In separate administrative cases, Biodiversity also challenged nine specific projects implemented as part of the Phase II amendment. The Chief denied all nine challenges, upholding the last in January 2011.

Biodiversity filed suit in Wyoming federal district court in October 2011, petitioning for agency review under the Administrative Procedures Act. In November 2012, the Wyoming court upheld the Forest Service’s action, and it denied a motion for reconsideration in April 2013. Biodiversity timely appealed.

Meanwhile, the Beaver Park litigation initiated by Biodiversity in 1999 lay dormant. After its defeat in Wyoming, Biodiversity attempted in May 2013 to reopen the Colorado case. The district court denied its motion, determining that laches barred enforcement of Biodiversity’s rights under the settlement agreement. Biodiversity timely appealed this ruling also, and the appeals were consolidated for Tenth Circuit review.

The Tenth Circuit reviewed Biodiversity’s challenges as final agency actions under the Administrative Procedures Act. Both parties agreed that each of Biodiversity’s plaintiffs established Article III standing. Biodiversity pursued review under 5 U.S.C. § 706(2)(A), arguing that the agency action was arbitrary and capricious. Biodiversity asserted violations of the NFMA and the NEPA.

The Tenth Circuit conducted a detailed analysis of each implicated section of the NFMA and NEPA. Where sections were ambiguous, the Tenth Circuit deferred to the Forest Service’s interpretation unless that interpretation was manifestly unreasonable. Regarding the population data requirement, the Tenth Circuit found that the regulation was ambiguous, and although Biodiversity raised a competing interpretation, deference was due to the Forest Service because its resolution of the ambiguity was reasonable. Regarding the Forest Service’s species viability analyses generally, Biodiversity argued that the Phase II amendment failed to ensure species viability for the Northern Goshawk, snag-dependent species, and sensitive plants. The Forest Service examined these particular species and adopted a different approach than that proposed by Biodiversity. Biodiversity failed to explain why its analysis was preferential to the Forest Service’s, however, so the Tenth Circuit deferred to the Forest Service’s scientific analyses.

Biodiversity argued the Phase II amendment failed to provide heightened protections for Research Natural Areas (RNAs) and Botanical Areas. Specifically, it alleged the Forest Service allowed livestock to graze on RNAs without specific management plans in place. However, there are no timelines for implementation of RNA management plans, and the Forest Service developed a plan as part of the 2005 Phase II implementation. Biodiversity failed to show that the Forest Service’s delay was unreasonable. As for the Botanical Areas, the Forest Service addressed these in its 1997 plan. Although Biodiversity argued the Forest Service failed to adequately monitor the well-being of the Botanical Areas, the Tenth Circuit’s APA review is narrow and examines only if the Forest Service had a rational explanation, which the Tenth Circuit found it did.

Biodiversity argued that the Forest Service failed to conduct a proper suitability and capability analysis for livestock grazing. The Tenth Circuit found no reason to conclude the Forest Service’s analysis was unreasonable, erroneous, or inconsistent with the regulation.

Biodiversity also argued that the Forest Service violated NEPA because it failed to consider no grazing alternatives in its Phase II amendment, it failed to take a “hard look” at how the amendment would affect sedimentation in Black Hills waterways, and it failed to take a “hard look” at historical grazing practices before authorizing grazing. The Tenth Circuit found no error in the Forest Service’s actions, finding instead that the Forest Service considered two no grazing alternatives, it contemplated sedimentation using Biodiversity’s proposed resources, and the Forest Service considered past grazing practices in determining that Alternative 6 was the best way to implement Phase II.

Turning to the Colorado claim, the Tenth Circuit agreed with the district court that the doctrine of laches barred Biodiversity’s assertion of the breach of settlement agreement claims. Biodiversity waited 6 1/2 years to file its suit alleging breach of the agreement, and that delay was unreasonable. The district court ruled the delay prejudiced the Forest Service, and the Tenth Circuit found no reason to disturb those findings.

The Tenth Circuit affirmed the Wyoming court’s denial of Biodiversity’s petition to review under the APA and affirmed the Colorado court’s dismissal of Biodiversity’s action to enforce the settlement agreement.

Tenth Circuit: Unpublished Opinions, 8/11/2014

On Monday, August 11, 2014, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

United States v. Meridyth

United States v. Sanchez

Watters v. Department of Justice

Salary v. United States Government

United States v. Howell

Wicks v. Colvin

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.