Look who made Windsor Now news! Congratulations Lee Morehead! Check out the article at the following link:
Look who made Windsor Now news! Congratulations Lee Morehead! Check out the article at the following link:
By: John Kolanz on September 18, 2015
Oil and gas and agricultural interests in Colorado and four nearby states celebrated a Texas federal judge’s ruling last week vacating Endangered Species Act protections for the lesser prairie chicken. Environmental interests were less enthused. While the ruling may ease the regulatory burden for certain entities in the region, its real significance could reach much further.
The judge found that the U.S. Fish and Wildlife Service misapplied the factors that it must consider to determine whether a species qualifies for ESA protection (i.e., “listing”). The Act requires FWS to consider, among other things, the adequacy of existing regulatory protections. If non-ESA mechanisms sufficiently protect a species, it should not qualify for listing.
The ESA is widely considered the strictest of all environmental laws. Once its protections attach to a species, the Act can severely limit activities that may harm the species or its habitat. In the case of the prairie chicken, this had implications for routine oil and gas and agricultural operations within the species’ range.
In an effort to avert a listing, Colorado, Texas, New Mexico, Oklahoma and Kansas teamed with private interests to create a comprehensive rangewide conservation plan for the prairie chicken. When implemented, the plan would raise funds through enrollment and mitigation fees, and use these funds to develop conservation measures. Landowners would dedicate “offset land” consisting of prairie chicken habitat to be enhanced and preserved to counter unavoidable impacts to habitat elsewhere in the range. Landowners would receive payment and other economic incentives to provide offset land to the program.
Despite these efforts, FWS listed the bird as threatened in April 2014. At the time of the listing decision, the plan had not yet been implemented. Therefore, the service determined that participation in the plan, as well as its implementation and funding, were too uncertain to guarantee protection to the bird. FWS further concluded that not listing the bird would discourage participation in the plan. The judge rejected this analysis an improper application of the service’s own policy on evaluating forthcoming conservation efforts during listing decisions.
The judge held that for FWS to give weight to such emerging plans in its listing analysis, it need only find that the plans are likely to be implemented and effective. In assessing the likelihood of implementation, FWS should consider prior industry and landowner participation in similar conservation efforts, and whether the plan creates a “good deal” for landowners in which they will want to participate. The judge held that the Service’s application of a stricter standard rendered the lesser prairie chicken’s listing invalid.
The direct effect of the ruling will take some time to sort out. For instance, it is somewhat unclear whether it vacates the lesser prairie chicken’s listing only in Texas, or in all five states where the bird is present.
However, its larger impact will go beyond the present case. For starters, the ruling could influence the upcoming listing decision for the greater sage grouse, due this month, as well as the pending appeal of the recent decision to list the Gunnison sage grouse. Both have significant implications for Colorado.
Moreover, FWS is scheduled to make many more listing decisions for species across the country. Comprehensive mitigation plans have become a popular mechanism to help avoid listings, but have had varying success. The ruling should reinforce the importance of state, local, and private entity cooperation in developing comprehensive plans to protect vulnerable species. Properly crafted and implemented, these plans can provide numerous benefits.
They can create markets for property owners, who often bear a disproportionate burden under the Act, to get paid for the ecosystem benefits their lands provide. Moreover, these plans offer far more certainty to the regulated community in terms of the cost and timing of activities and projects that would otherwise require ESA review.
The plans also can help local and state governments minimize economic disruptions for their citizens and businesses. They can further help ensure that FWS allocates its limited resources to those species truly needing ESA protection. Finally, at-risk species can benefit from early conservation efforts that could be implemented more quickly than those produced through individual ESA review.
While opportunities presented by each species will vary, in many cases, the potential benefit of encouraging such plans is widespread and substantial. What some may consider a defeat for the lesser prairie chicken actually could be a win for all.
John Kolanz is a partner with Otis, Bedingfield & Peters LLC in Loveland. He can be reached at 970-663-7300 or via email at JKolanz@nocoattorneys.com.
The Million Dollar Comma
With the advent of legal service websites like Legal Zoom, Rocket Lawyer, nolo.com, etc., almost anyone can draft a will, a durable power of attorney, or a real estate contract. People can even set up a limited liability company and draft their own divorce documents. The advent of “cost effective” online legal services should be signaling the demise of the brick and mortar, flesh and blood attorney, right?
We’ve all heard the old adages: “Pay now or pay later” and “Just enough information to be dangerous.” That has never been more applicable than with the proliferation of self-help legal websites. These websites offer form banks for standard documents and general legal and/or statutory guidelines. But there are times when that may not be enough. Have you ever heard of the “Million Dollar Comma”? Often touted as rumor or some sort of urban legend, it is anything but.
One part of the U.S. Tariff Act of June 6, 1872 contained a sentence that intended to exempt the importation of semi-tropical and tropical fruit plants from tariffs. The sentence was meant to read “Fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation.” One comma, however, was mysteriously moved one word to the left during the copying process, thereby rendering the sentence as: “Fruit, plants tropical and semi-tropical for the purpose of propagation or cultivation.”
Importers of oranges and lemons and the like were quick to seize upon the misplacement and use it to their advantage. They contended that under the wording of the act, all tropical and semi-tropical fruit were exempt and thus could be brought into the U.S. without payment of the tariffs.
The Treasury initially ruled against this interpretation, but then later reversed itself and sided with the fruit importers. Most of the monies collected as duty on the import of tropical and semi-tropical fruit while the errant comma was in effect were refunded to those who had paid the fee. That memorable punctuation error deprived the U.S. government of an estimated $1 million in revenues.
Of course, most of us aren’t dealing with something on the scale of the above example and that really isn’t a case of not having adequate legal representation; however, similar consequences are well within the realm of possibility for anyone. Imagine, for example, that you have a modest estate and you love all three of your children equally. Your spouse predeceased you and you would like to update your will to reflect your current situation. So, you go online with the best intentions to draft a simple will that divides your estate equally among your three children. You draft your will to leave your entire estate “to Child A, Child B and Child C, in equal shares.” Despite your intentions, what you have now done constructively is to give Child A half of your estate while Child B and Child C will be left to divide the other half. The proper drafting to achieve your desired result would have been to leave your entire estate “to Child A, Child B, and Child C, in equal shares.” Thus, each child would thereby receive 33 1/3% of your estate. While this simple punctuation mistake may be overlooked by many, this missing comma could provide an heir with the legal grounds to contest the will. What was intended to be a simple will could potentially result in a contentious and costly court battle.
Legal websites will tell you that drafting basic legal documents rarely involves complicated legal rules and most people do not need a lawyer’s help to draft those types of documents. While that may be true, it’s not always the “complicated legal rules” that you need to look out for. Sometimes it just may be worth it to pay a professional for that added peace of mind.
Estate planning attorneys are frequently asked by clients to explain the difference between a “will” and a “trust.” This is normally in the context of planning for the disposition of assets upon the client’s death – so we surmise that clients are looking for information regarding the differences between and the benefits of both Wills and Living Trusts as testamentary instruments. Many times, our clients will have the general impression that Living Trusts are “better” than Wills and have a notion that they may save taxes, may protect assets in some way, insure privacy and avoid probate, but they aren’t sure and want to understand how they work; and frequently, what we think of them.
Let me state at the outset that my bias is, more often than not, to guide our clients towards a Will as the basic testamentary instrument. While Living Trusts certainly have their place, we don’t favor them as the default testamentary vehicle for reasons we will explain below. However, we have drafted many Living Trusts and believe they are the most appropriate instrument in certain circumstances. Of course, if a client really wants to work with a Living Trust as their preferred document, we will be happy to work with them. After all, there isn’t a “right” or “wrong” way to make these plans. Either document can help a client achieve most common estate planning objectives. The rest of this article will briefly describe probate and wills, and some of the benefits of Living Trusts, along with some of the perils – as opposed to Wills. Second, it will describe the situations in which Living Trusts may be preferable to a Will.
Before we discuss Revocable Living Trusts, it will be important to understand the probate process in our legal system and its role in property transfers. When a person dies owning property, particularly “real property” (real estate) or titled property (automobiles, trailers, bank and investment accounts) – and the property is intended to be given to heirs or other devisees – how can this be done if the owner is dead? The answer is through the probate process in most states. “Probate” comes from the latin verb “probare” which means to “prove, try, test or examine.” It is basically the process of submitting a will to the court for “testing” and distributing the assets as provided in the will of the deceased. In Colorado, Personal Representative, named in the Will, is appointed as the responsible party by the Court. This appointment grants the Personal Representative the authority to pay bills, settle accounts and distribute any property. The process in Colorado (and most states) is fairly simple, inexpensive and un-intrusive. Unless there are conflicts, the Court is not involved and the Personal Representative can handle most of the work, paying bills and distributing property according to the plan detailed in the Will. However, for various reasons, some people would still like to avoid the probate process. One way to do avoid the probate process is by establishing, and importantly, fully funding, a Living Trust.
Revocable Living Trusts
Essentially, a Revocable Living Trust is an entity into which one places all, or most, of one’s assets. As the name implies, the trust can be amended or fully revoked at any time as long as you are alive. The trust document, or “agreement” will normally give the grantor full control over all the assets and income in the trust. In other words, your control over the assets doesn’t change, they are simply “owned” by the trust rather than you as an individual. Ownership by the trust rather than the individual is what gives rise to both the benefits and potential problems of a Living Trust.
Because your assets are owned by the Trust rather than by you as an individual, the Trust doesn’t “die” when you do. Therefore, when you pass away, your successor trustee (named in the Trust Agreement) simply takes over managing your assets and/or distributing them as you direct in the Trust Agreement. In this way, the Living Trust avoid probate – there is no Will to “prove” and follow. A related benefit is that even if you don’t die, but if you either cannot, or will not, manage your financial affairs, your successor trustee (hopefully someone you trust) can step in and manage your affairs i.e. pay bills, manage property and investments and otherwise contract on your behalf.
These benefits are only available if all of your assets are actually in the name of the trust. This is the area where, in our experience, people may lose the potential benefits of a Living Trust. Over time, it is difficult to remember to have all your assets place in the name of the trust. Bank accounts, real estate, investment accounts, life insurance, retirement accounts . . . all need to be owned by the Trust. Sometimes, this just isn’t done at the beginning, or even if it is, over time, assets are bought and sold and habit takes over . . . people tend to forget to put them in the name of the trust. If there are assets titled outside the Trust, at death, it may be necessary to open probate to handle those assets, thus defeating some of the benefits of a Trust. In addition to requiring a bit more effort manage, Living Trusts typically cost more at the outset to set up than a Will which accomplish the same goals for the client.
Benefits of a Trust
Despite some of the burdens of preparing and administering a trust, there are two significant benefits to a Living Trust. The first is for people who own real property titled in a different state. Owning that property in a Living Trust rather than individually will allow that property to be distributed or managed after death without requiring opening a probate case in that state. As stated earlier, the Trust does not “die” and so whomever is successor trustee may simply sell or otherwise manage the property without Court approval through the probate process in that state.
The second benefit is for individuals who are concerned about the management of their assets when they either lose capacity or interest. While a Durable Power of Attorney can provide a trusted individual the necessary authority to manage one’s financial affairs, a Successor Trustee taking over under a trust agreement can be a simpler and smoother process.
Both Wills and Living Trusts can be effective documents for passing assets to heirs and devisees and both may be used to avoid or minimize estate taxes if properly drafted. Living Trusts may provide the benefit of simpler management of assets by a third party (a successor trustee) during your incapacity than is sometimes available under only a Power of Attorney; and Living Trusts can help you avoid probate in a different state if you own property there. Living Trusts will typically cost more to draft at the beginning and transfer your assets into the trust and can be more cumbersome to manage during your life. Both documents (along with a power of attorney) are effective tools for clients and attorneys in planning for a client’s death and/or disability – it will be up to you and your counsel to decide on the right approach for your circumstances.
It’s hard not to think about turkeys this time of year. This is especially true around our office, where we have had a wild turkey living in and around our parking lot for the past several months. He’s become such a fixture around here that he’s been given an affectionate name: Bubbles. I’m not sure where that name comes from, except perhaps that our staff is either very friendly (which they are) or that’s their way of honoring the “no one curses around Jennifer” rule and so they refer to the tiny green blobs they have to walk around on their way into our office as “bubbles” and the name stuck. Whatever its derivation, over the past several months we have all grown attached to Bubbles and learned a thing or two about wild turkeys along the way.
We now know, for instance, that wild turkeys can in fact fly.
Bubbles can often be spotted high among the trees that line our parking lot. We learned that seeing a wild turkey like Bubbles was not a unique occurrence in Greeley. Our fair city is home to a flock of wild turkeys who can often be seen gathering around the Poudre River Trail in West Greeley. Last year, a flock of wild turkeys held up traffic on Highway 85 on the east side of town. Apparently, wild turkeys are a thing, like Texas, that you just don’t mess with.
We don’t know if the rest of the wild turkeys that call Greeley home are as entertaining as Bubbles, but we have learned from Bubbles not to think of all turkeys as a part of the local school play or our Thanksgiving dinners. Bubbles has taught us that wild turkeys have personality.
They apparently like to hang out on top of cars, in the backs of pickup trucks, and when the mood strikes, will play “chicken” with the people coming in and out of our office. We’ve watched Bubbles hide behind bushes, jump fences, and sit quietly watching his own reflection in our glass entry doors. Each day, we’ve all had an encounter with Bubbles, and wondered as Thanksgiving grew closer whether Bubbles would live to see it.
I’m glad to report he did. He was seen relaxing high up in a tree outside of Fred’s office just yesterday afternoon.
If you had told me last year that one of the things I’d be thankful for this year was to see a wild turkey after Thanksgiving, I would have laughed at you. Don’t get me wrong, I’m thankful for a whole host of things this year: my family, especially my brother and legal assistant Mike who turns 30 today (Happy Birthday Little Brother!), my friends (both of you), my business partner and mentor Fred L. Otis, our great staff Leigh, Pam, Candace, Mike, and Nate, and our new colleagues Tim and Cindy. I’m thankful for old mining roads in the San Juan Mountains, that the Avalanche have won 19 games, that Eli Manning finally remembered how to throw a touchdown to his own receiver and thus revived my fantasy football team (the Ghost Busters), and for new episodes of Homeland. But this year, I was also thankful to see a wild turkey survive Thanksgiving. And for what that wild turkey taught me.
You see, before Bubbles, turkeys to me were things we ate on Thanksgiving, and the drivers who cut me off on my way to court. Wild Turkey was something to enjoy in the company of good friends, not dodge as you walk to your car when you leave work. (Although it should be noted that not every tan colored liquid in my glass at the end of the work day is Wild Turkey…more often than not I prefer a simple Diet Snapple.)
These encounters with Bubbles over the past several months has helped put things in perspective for me. Bubbles reminded me to check my perceptions at the door and to not judge something or someone based on what I knew about it previously. Such a change in perception can be an invaluable tool in a litigator’s toolbox, whether used to reevaluate a complex business dispute or to find a better, more compelling way to tell the client’s story in an appellate brief. Like most creative personalities, I find inspiration hits me in the strangest places and when I least expect it. I first discovered my creative side had a part to play in my complex litigation practice a few years ago when I was scouring an old bookstore in Amarillo, Texas, worrying about how I was going to get a witness I was about to depose to give me the information I needed when it hit me as I was skimming a new poetry book how many times my legal career had given me an opportunity to rely on my creative side to get the right results: the better closing argument, the creative cross-examination, the simple story that tied it all together, the off-beat strategy that might throw a deponent expecting a typical, organized attorney off just enough to get to the truth. That was a defining moment for me because it led me to embrace my creative side in my legal practice, and better results and a happier, more productive and efficient litigation practice followed.
It is often ironic where the idea that becomes the crux of a case or that will form the theme of the case will come from, but it is usually from an unexpected source: like an encounter with a wild turkey in the parking lot of your office.
On November 18, 2013 my partner, Fred L. Otis, and I opened the doors to our new law firm, Otis & Peters, LLC. Well, we opened the same door we’ve opened for the past 12 years, but the name on the door changed officially. You see, Otis & Peters, LLC is not so much a new venture for Fred and I as it is a return to what we love most: a focus on the practice, rather than the business, of law.
Fred and I share the same belief that sometimes, bigger is not always better. This is not to say that we don’t believe businesses should grow or that we don’t plan to grow our firm: we do. We just believe that to provide the highest quality of legal services in the personal manner Fred and I are known for, the optimum size of a law firm is smaller and more focused on the clients and the law than anything else.
We are excited about what the future holds at Otis & Peters, LLC. We have been blessed to have our core staff remain with us and to have loyal clients who are making this transition with us. We see the beginning of Otis & Peters, LLC as an opportunity to retool and rebuild, much like a new coach of a professional sports team. As an avid Colorado Avalanche fan, I, like thousands others, have enjoyed watching the resurgence of our young hockey team under the leadership of Patrick Roy. As the new head coach, Roy brought his philosophy and applied it to a team of core players supported by new talent. The mantra at the Pepsi Center this season is Welcome to the New Age, based on the hit song Radioactive by Luke Malink. Otis & Peters is enjoying our own similar New Age.
We are refocusing, applying our philosophy, and rebuilding with a crop of new talent. Exciting things are coming for Otis & Peters, LLC. Stay tuned.