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:

Dance like no one is watching; email like it may one day be read aloud in a deposition – By: Christian J. Schulte, Esq.

Attorney Timothy R. Odil Promoted to Equity Member of the Firm

Otis, Bedingfield & Peters, LLC is proud to announce the promotion of attorney Timothy R. Odil to Equity Member. “We are thrilled to have Tim as our partner in our firm,” says Partner John Kolanz. “His hard work on the most complex litigation matters and his mentorship of our younger attorneys has made him a valuable asset to us and our clients,” adds Kolanz.

Tim is a key member of the firm’s litigation team. His practice focuses on disputes among private parties as well as disputes with local, state, or federal government agencies. He handles complex business litigation and appeals, government and commercial contract disputes, regulatory compliance, licensing disputes, and rulemaking issues, as well as employment law matters.

Tim was recognized as a Colorado Lawyer of the Year in 2014 by Law Week Colorado. The honor was in recognition of Tim’s superior work in both the trial court and the appellate court. Tim was selected as an honoree in the 2015 BizWest 40 Under Forty Leaders Honor Roll program. This program recognizes Northern Colorado’s top 40 young professionals under the age of 40, who represent the best and the brightest emerging leaders that make a difference in their companies, industries, and communities. Tim was also voted one of Business Connect’s 2016 Top 20 Under 40, which recognizes the top business performers under age 40 in Weld County. Tim has also been recognized several times as a Colorado Rising Star by Law & Politics, and he is a former board member of Rebuilding Together Metro Denver.

A Colorado native, Tim received his law degree from the University of Denver Sturm College of Law, and received his undergraduate degree from Johns Hopkins University. Tim began his legal career as a law clerk in the Weld County Courts, where he clerked for District Court judges J. Robert Lowenbach and Daniel S. Maus.

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Otis, Bedingfield & Peters, LLC provides real estate and business law services throughout Northern Colorado. OBP has 15 attorneys serving its two offices in Greeley and Loveland. For more information, please visit www.nocoattorneys.com.

Attention to all who work in the legal community! The Weld County Bar Association is proud to host its Eighth Annual Law Day honoring those who work in the legal field. The event will be held on May 5th from 7:30 -8:30 am., at the Plaza West, Jury Assembly Room. RSVP information is included on the flyer. There is no cost to attend!