ARE YOU THE CONTROLLING TYPE? By John A. Kolanz

If so, and you own property on which tenants engage in certain regulated activities, you should consider consulting a specialist for a little preventive care – legal, not medical. Controlling the activities of these tenants can draw enforcement against the property owner when the tenants’ operations raise environmental compliance issues, as a recent federal case illustrates.

The case involved a sportfishing group that sued an industrial park owner for Clean Water Act (“CWA”) violations caused by discharges of polluted storm water. The fact that any pollutants in the storm water were put there by the tenants did not protect the landlord. The court held that “owners and/or operators who have sufficient control over a facility can be held liable under the CWA even if they do not themselves perform the industrial activities that create the pollutants in the storm water discharge.” Here, the landlord owned and controlled the storm water drainage system from which the pollutants were released.

Operations requiring storm water permits are not uncommon, and can include transportation, food processing, and recycling businesses, as well as construction activities. The requirement can also apply to other operations on a case-by-case basis.

Moreover, this potential enforcement trap for landlords goes beyond CWA concerns. Owners who exert control over their tenants’ waste management practices may also risk enforcement. In recent years, retail outlets like hardware stores, pharmacies, and even groceries have been targeted by hazardous waste enforcement actions. This is because many common products like drain cleaners, over-the-counter drugs, and hand sanitizers can be considered hazardous wastes under certain circumstances.

Thus, a tenant’s business may not necessarily raise a red flag. Landlords should consider how monitoring protocols or proper lease provisions could provide protection from the environmental afflictions of their tenants, and save the expense of a pound of cure.

Otis, Bedingfield & Peters, LLC is pleased to announce that attorney Jennifer Lynn Peters has been certified as a member of Lawyers of Distinction.

Otis, Bedingfield & Peters, LLC is pleased to announce that attorney Jennifer Lynn Peters has been certified as a member of Lawyers of Distinction.

The Lawyers of Distinction is recognized as the fastest growing community of distinguished lawyers in the United States.   Membership is limited to the top 10% of attorneys in the United States. Members are accepted based upon objective evaluation of an attorney’s qualifications, license, reputation, experience, and disciplinary history.

Widely known for organizing the 19th Judicial District Bench-Bar Committee’s Annual Nuts & Bolts CLE, now in its 14th year, Jennifer routinely gives presentations on real estate law, business law, and ethics. She also volunteers as a mediator for the Weld County courts, and was the recipient of the Weld County Bar Association’s Andrew Borg Award recognizing pro bono service in 2009. Ms. Peters was named a Rising Star by Colorado Super Lawyers Magazine in both 2011 and 2012, and is a member of the board of directors of CREW Northern Colorado and the Weld Food Bank. Jennifer was inducted into the 40 Under 40 Hall of Fame by the Northern Colorado Business Report. She was awarded a certificate of completion of the Commercial Real Estate Women (CREW) Leadership Program.

“It is a tremendous honor and I am humbled to be selected for this certification.   It is great to work with a talented and supportive team of lawyers and staff at our firm that make it possible for me to support our Northern Colorado community and provide such a high level of legal services to our clients,” said Jennifer Lynn Peters.

Lawyers of Distinction does not offer membership to more than 10% of attorneys in any given state. Lawyers of Distinction uses it own independent criteria, including both objective and subjective factors in determining if an attorney can be recognized as being within the top 10% of attorneys in the United States in their respective field. This designation is based upon the proprietary analysis of the Lawyers of Distinction organization alone, and is not intended to be endorsed by any of the 50 United States Bar Associations or The District of Columbia Bar Association. Please see the website www.lawyersofdistinction.com for further details concerning membership qualification.

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Otis, Bedingfield & Peters, LLC provides real estate law and business law services throughout Northern Colorado. OBP has 16 attorneys spread across its two offices in Greeley and Loveland. For more information, contact Jennifer Lynn Peters at jpeters@nocoattorneys.com or 970-330-6700 or visit www.nocoattorneys.com.

Buying a Business? Make Sure Your Written Agreement Protects You from Future Competition! By: Tim Odil

OBP has been named one of the fastest- growing companies in Northern Colorado!

OBP has been named one of the fastest- growing companies in Northern Colorado!

What are the fastest-growing private companies in Northern Colorado?

The Mercury 100 list is ranked by percentage revenue growth over a two-year period. The 100 companies are divided into five “flights” of 20, with the highest revenue earners in flight one. Those 20 companies are then ranked by their percentage revenue growth over a two-year period. The Mercury is compiled by BizWest’s research department and vetted by Anton Collins Mitchell. The top five in each flight were introduced at the event on 6/27 and OBP was in the top five in our category!

Clean Water Act Rule: Review of the Clean Water Act Jurisdictional Rule Considerations for Moving Forward by: John Kolanz

John recently had an extensive article published in The Water Report (see link below).  He also spoke at CSU on June 13th on the Waters of the United States rulemaking at the 2017 Universities Council on Water Resources/National Institutes for Water Resources Annual Conference.  Way to go John!

Clean Water Act Rule: Review of the Clean Water Act Jurisdictional Rule Considerations for Moving Forward by: John Kolanz

 

Kolanz, John A. “Clean Water Act Rule: Review of the Clean Water Act Jurisdictional Rule Considerations for Moving Forward .” The Water Report 160 (2017): 1-31. Www.NEBC.com. Web. 15 June 2017.

Otis, Bedingfield & Peters, LLC is proud to announce the promotion of attorney Brandy E. Natalzia to Senior Associate with the firm

Otis, Bedingfield & Peters, LLC is proud to announce the promotion of attorney Brandy E. Natalzia to Senior Associate with the firm. “This promotion recognizes the outstanding contributions Brandy has made to the firm, her exemplary work, and her commitment to both the firm and her community,” says Senior Partner Fred L. Otis, Esq.

Brandy is a member of our business and transactions team. She graduated, cum laude, from Florida Coastal School of Law where she received Class Book Awards for her work on Trusts & Estates and Transactional Drafting. She received her Bachelor of Arts degree in communications, cum laude, from the University of North Florida in Jacksonville. Brandy is admitted to practice in Colorado and Florida.

She is a former judicial intern for the Honorable Jay Cohen of the Fifth Circuit Court of Appeals and the Honorable Marcia Morales Howard of the U.S. District Court for the Middle District of Florida. While in law school, Brandy served as the Managing Editor of the Florida Coastal Law Review and was the Chief Managing Editor of the Public Interest Research Bureau, a student organization committed to providing free legal research to underserved clients.

Brandy’s practice with the firm focuses on all areas of real estate and business transactions, including entity formation and contract drafting, review and negotiations.

Utah Rodent in Middle of Ideological Tug-Of-War by: John A. Kolanz

 

Against the backdrop of the Trump Administration’s determined deregulatory efforts, the Tenth Circuit Court of Appeals (which covers Colorado) recently affirmed substantial federal authority to regulate activity on private lands. While the Court delivered its opinion in the context of the Endangered Species Act (“ESA” or “Act”), the case has broader implications for environmental regulation in general.

Congress passed the modern day ESA in 1973, with barely a dissenting vote. The Act’s main goal is to conserve threatened and endangered species along with their supporting ecosystems. The ESA quickly gained a reputation as one of the most powerful environmental laws ever enacted when it stopped a massive and nearly-completed federal water project in its tracks to save a newly-discovered diminutive fish (snail darter) that is unsuitable for rod and reel. (Congress eventually had to pass special legislation to allow completion of that project – the Tellico Dam.)

The Act can likewise affect private actions. Once a species is “listed,” the Act’s keystone provision prohibits the “take” of that species without a permit or other authorization. While “take” includes killing, the prohibition encompasses a much broader range of actions, such as harassing, harming, pursuing, or capturing. It can even include significant habitat modification or degradation.

With respect to some species, this broad prohibition can complicate routine land management activities. Such was the case with the Utah Prairie Dog (“UPD”), a listed species that lives only in Utah, and mostly on non-federal land.

People for the Ethical Treatment of Property Owners (“PETPO”) is a group of over 200 private landowners and other entities who say that regulation of the UPD has prevented them from building homes and starting small businesses. PETPO challenged the authority of the United States government to regulate the take of UPDs on private land.

The United States Constitution delineates Congress’s powers. Those not granted to Congress are reserved to the states or the people. The Constitution’s Commerce Clause authorizes Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Congress relied on this authority to pass the ESA and other environmental laws.

PETPO argued that the Commerce Clause does not authorize Congress to regulate the take on non-federal land of a purely intrastate species that does not itself substantially affect interstate commerce. The Circuit Court, however, declined PETPO’s invitation to evaluate the prohibited activity in isolation, and instead considered its place in the ESA as a whole.

The Court determined that Congress had a rational basis to believe that regulating the take of the UPD is essential to the Act’s broader regulatory scheme. The Court found this broader scheme to substantially affect interstate commerce, and therefore upheld the federal government’s authority to protect the UPD.

To hold otherwise, the Court said, would leave a “gaping hole” in the ESA, since almost 70% of species listed under the Act exist solely within one state. The Court further explained that excising a specific activity governed within a larger statutory scheme would subject Congress’s Commerce Clause authority to “death by 1000 cuts.” This would call into question the validity of the ESA itself, as well as other environmental laws.

The result in this case was not really surprising. Every other Federal Circuit Court that has considered the issue has upheld the federal government’s authority to protect purely intrastate species under the Act.

That is not to say that the UPD should rest comfortably in its burrow. The stringency of the Act itself has long generated calls for legislative relief. Today’s political climate may make such efforts more likely.

Perhaps more importantly, since the mid-1990s the United States Supreme Court has showed renewed interest in reassessing Congress’s Commerce Clause power. Landmark opinions in 1995 and 2000 began to curb a power that some legal scholars had begun to regard as virtually limitless.

The Trump Administration’s deregulatory effort envisions a stronger state role in environmental regulation. This effort will undoubtedly encourage further legal challenges, and one – perhaps the UPD case – will eventually find its way to the Supreme Court. When that happens, the makeup of the Court will play a significant role in the outcome.

The Supreme Court’s conservative justices show a decided preference for stricter limits on Congress’s Commerce Clause power. Depending on the case and the makeup of the Supreme Court at that time, the resulting decision could profoundly and forever change the structure of environmental regulation in this country.

 

John Kolanz is a partner with Otis, Bedingfield and Peters, LLC in Loveland. He focuses on environmental and natural resource matters and can be reached at 970-663-7300 or JKolanz@nocoattorneys.com.

 

A version of this article was recently published in BizWest. Please see the following link: