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!

Congratulations to Fred Otis for being honored as a Volunteer of the Year! Fred not only serves on the United Way Board of Directors, but he has also given extensive time in helping the homeless in Weld County.

Why Is My Contract So Long?


“The time to repair the roof
is when the sun is shining.”
-John F. Kennedy

 

You entered into a pretty basic commercial deal, and decided to do things properly and get it drawn up by an attorney. You’ve now received a ‘draft’ from the attorney and it’s long. It was a simple deal. Why are there so many terms? Why is it several pages in length? The answer lies in risk-shifting, or preparing for the rain.

Contracts are generally signed in good times, when the sun is shining. The parties typically have high expectations of the success of the agreement and may not consider what happens if and when things don’t go as planned. However, it is important to prepare for the bad times, to formulate terms that consider risks that may arise after the contract is signed. There are many ways a contract can be drafted to guard against the rain – two of the more common ones are representations and warranties and indemnity provisions.

Representations and Warranties

A representation is simply a statement of fact upon which another party is expected to rely, while a warranty is a party’s assurance as to a particular fact coupled with an implied indemnification obligation if that fact is false. Representations and warranties are generally used to allocate risk by (1) apportioning exposure to potential losses and shifting risk from the recipient to the maker; (2) creating a direct claim against the maker if representations and warranties are inaccurate; and (3) serving as a basis for the parties’ indemnification rights.

Indemnification

An indemnification clause is a promise to protect and defend another in the event a particular set of circumstances leads to a loss suffered by another party. Indemnity provisions are the primary vehicle by which parties typically shift or apportion risk in a contract.  Indemnity provisions may include any, or all, of three obligations to (1) indemnify, (2) defend, and (3) hold harmless the other party. A well-drafted indemnification provision allows parties to customize their risk allocation by shifting the burden of loss and compensating an indemnified party for risks it did not assume and expenses that may not be recoverable under common law, like attorneys’ fees.

Having an attorney draft or review your contract before signing is recommended. It is imperative that you understand the potential consequences of the risk-shifting provisions in any contract. By carefully drafting and negotiating a contract before execution, during the good times, you can best protect yourself or your company from the inevitable rain.

Otis, Bedingfield & Peters, LLC attorney Nate Wallshein appointed to the board of The Matthews House

Otis, Bedingfield & Peters, LLC is proud to announce that attorney Nate Wallshein was appointed to the board of the Matthews House.

The Matthews House is an organization that empowers young adults and families in transition to navigate difficulties on the road to self-sufficiency. Many individuals in the program do not have a significant support system nor the skills necessary for living independently. The Matthews House provides resources and relationships necessary for those to take control of their lives and shape positive futures for themselves.

“I am humbled and thrilled to serve on the Board at The Matthews House. The staff and volunteers provide much needed services in our community by empowering youth and families in times of transition, and by providing preventive, educational, and vocational training. The incredible support from northern Colorado residents drives our success and continues to strengthen our community,” said Nate Wallshein.

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Otis, Bedingfield & Peters, LLC provides real estate law and business law services throughout Northern Colorado. OBP has 15 attorneys spread across its two offices in Greeley and Loveland. For more information, contact Nate Wallshein at nwallshein@nocoattorneys.com or Jennifer Lynn Peters at jpeters@nocoattorneys.com or 970-330-6700 or visit www.nocoattorneys.com.

Otis, Bedingfield & Peters, LLC attorney Lia Szasz is admitted to practice law in Colorado and Wyoming

Otis, Bedingfield & Peters, LLC is proud to announce that attorney Lia Szasz has been admitted to practice law in Colorado and Wyoming.

Lia worked as a law clerk for the firm throughout law school. She recently passed the bar and joined the firm as an associate attorney.

Lia obtained her undergraduate degree from Washington State University and her J.D. from the University of Colorado School of Law. While in law school, Lia received the best overall combined brief and oral argument award in the Colorado Appellate Advocacy Competition, and represented CU in the American Bar Association’s Client Counseling Competition. Before law school, Lia worked for a real estate and estate planning law firm, and for a title company.

Her practice at OBP focuses on business law, agricultural law, real estate law, and complex commercial litigation.

With a background in agriculture and real estate, she is particularly adept at assisting clients with matters related to farming and ranching operations.

Lia is committed to serving northern Colorado both professionally and as a member of its community.

 

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Otis, Bedingfield & Peters, LLC provides a range of legal services throughout Northern Colorado. OBP has 15 attorneys spread across its two offices in Greeley and Loveland. For more information, contact Lia Szasz at lszasz@nocoattorneys.com or Jennifer Lynn Peters at jpeters@nocoattorneys.com or call 970-330-6700 or visit www.nocoattorneys.com.