I’ll be away on family business for a while, but our newest guestblogger, research director David Kopel of the Colorado-based Independence Institute, should have no trouble filling the gap. Well known as a participant at the Volokh Conspiracy, Dave is among the nation’s most prominent scholars on firearms and Second Amendment controversies, as well as a columnist at Denver’s Rocky Mountain News and a commentator on many other issues related to individual liberty. Welcome!
Posts Tagged ‘Colorado’
Making Everyone a Lawyer
This is a bit off-topic from litigation, but one of the issues I touch on from time to time in my own blog is just how hard the government makes it to conduct business. While Ted and Walter seem to enjoy what they do, not all of us want to shuffle documents through the legal system every day.
As brief background, my small business runs recreation facilities on public lands under concession contracts. This week we won our first contract with the National Park Service, to run a restaurant and a couple of marinas in Colorado. Since this is our first foray into that state, there are a lot of legal hoops we must jump through to get all the permissions we need to conduct business in Colorado. In fact, as I describe on my blog, my work list is up to 20 fairly time-consuming approvals we need to obtain. And I am sure this list will grow. Even after years in a state, we still can have some random inspector coming by looking for our (fill-in-the-blank) licence, which we had never heard of to that point. My favorite so far is probably Kentucky’s requirement that I get a licence to sell eggs.
About six months ago, a business school professor asked if I would just write down what I was working on that day, as a part of a lesson in entrepreneurship for his students. Later, I posted the list on my blog. I ended the post by saying, “An alien from another planet in reading this post might question whether I am really working for myself or this ‘government’ entity”
Update: Colo. recreational land use
Per the Colorado Civil Justice League:
House Bill 1049, sponsored by Rep. Witwer and Sen. Grossman, [if passed by the state legislature] would ensure that private landowners who grant public access to their lands for recreation aren’t penalized by the law for their generosity.
As we noted Aug. 5, the state’s reputation as a paradise for mountain climbing is suffering as fear of liability makes more landowners reluctant to grant access to climbers.
Indian land claims: give us Denver
We’ve covered this set of issues numerous times in the past, but here are some fresh details:
When the Indian Gaming Regulatory Act became law in 1988, no one imagined that it would become a Trojan Horse that would deliver Las Vegas-style casino gambling into communities across America. Having saturated local markets, many tribes are now seeking to acquire land near other, sometimes-distant, population centers, and converting it to “sovereign” territory, in an effort to shoehorn casinos into areas where they’re often not wanted by local populations. Once land becomes part of a reservation, it typically becomes exempt from local taxes, state labor laws, municipal ordinances, zoning restrictions and environmental review. In one of the most egregious cases, in 2004, the Cheyenne-Arapahoe Tribes of Oklahoma filed a 27 million acre land claim which included all of Denver and Colorado Springs, but offered to drop it in exchange for the approval of a Las Vegas-style casino near Denver Airport.
“These efforts are being funded by ‘shadowy’ developers who underwrite the litigation expenses, lobbyist fees and even the cost of land in exchange for a cut of the profits,” James T. Martin, the executive director of the United South and Eastern Tribes, told the Senate Committee on Indian Affairs in May 2005. “If even one of these deals is approved, the floodgates for this kind of ‘reservation shopping’ will open throughout the country.” (Mr. Martin, it should be said, is no opponent of gambling: his organization includes tribes whose main goal is to thwart new competition against their own casinos.)
(Fergus M. Bordewich, “The Least Transparent Industry in America”, Wall Street Journal, Jan. 5)(subscriber-only).
Vexatious litigant jailed for contempt
“Former Steamboat Springs [Colo.] resident Kay Sieverding, who has been in jail since September, was released Wednesday after she agreed to dismiss her numerous federal lawsuits.” U.S. District Judge Edward Nottingham had ordered Sieverding committed to jail for contempt of court after she continued to file lawsuits he described as “frivolous”, “abusive” and “gibberish”, including refilings of lawsuits she had already lost. “Sieverding has filed lawsuits against not only her former neighbors but also Steamboat Springs officials, the local newspaper, several individual lawyers and the entire Colorado and American Bar Associations, among others. She has filed the lawsuits in Colorado U.S. District Court, and also in federal courts in Illinois, Minnesota, Kansas and the District of Columbia.. …The judge said he will issue an additional order prohibiting Kay Sieverding from filing any more lawsuits, anywhere in the United States, without an attorney or his permission.” (Karen Abbott, “Pledge gets woman out of jail”, Rocky Mountain News, Jan. 5; Alicia Caldwell, “Woman Held Over Lawsuits”, Denver Post, Dec. 19)(via Jonathan B. Wilson, here and here).
“How Many Laws Did You Break This Week?”
In a paper published by the Golden, Colo.-based Independence Institute, Mike Krause and Chelsea Johnson examine the problem of overcriminalization in one state, Colorado. (Publication # IP-9-2005, Sept., PDF). More: via Mike Cernovich, here’s word of a symposium on overcriminalization in the American University Law Review with contributions from (all PDF): Ellen S. Podgor, John S. Baker, Jr., John Hasnas, Peter J. Henning, Erik Luna, Sara Sun Beale, Geraldine Szott Moohr, and Paul Rosenzweig.
Colorado’s highest peaks, off bounds
Among mountain climbers, no American state compares to Colorado with its 54 “14ers” — peaks over 14,000 feet high. According to the Colorado Mountain Club, more than 1,000 persons have accomplished the feat of climbing all 54 of them. But climbers are now facing a new obstacle: some of the trails up to the peaks pass through private land, and liability fears are changing landowners’ minds about granting access:
“We’ve known for years that people are climbing on our land,” said Maurice Reiber, whose Earth Energy Resources Co. owns chunks of several 14ers. “The reason we asked the Forest Service to do something about it this year is because society has changed.
“Let’s face it,” Reiber continued, “this is a lawsuit-happy country nowadays. If somebody breaks through a gate up there and falls into an old mine shaft, they might decide to sue me. The liability question is the issue we’ve got to resolve.”
The Forest Service said there has been no such legal action to date. But many peak-baggers sympathize with the landowners’ concern.
“Here’s a guy who’s generous enough to let people use his property for free,” noted T.J. Rapoport, a veteran climber who runs the Colorado Fourteeners Initiative, an environmental group. “But the lawyers tell us there is no waiver, no release he could design that would definitely protect him against a jury verdict.”
(T.R. Reid, “Private Obstacles Block Climb to 14,000-Foot Peaks”, Washington Post, Jul. 17).
P.S. Reader Jay Strickland writes to ask, “Does Colorado have a recreational use statute like we have here in Georgia? The statutes (OCGA 51-3-20 through 51-3-26) absolve owners of liability, except for willful and wanton acts, for giving free access to their property. Similar legislation would seem to address these concerns.”
Colorado attorney Aaron J. Hill responds: Yep, Colorado has a recreational use statute (CRSA 33-41-101 et seq.)(out of date version here). But the carve-out in Section 104 is broad enough that any owner with a known hazard (i.e. mineshafts) or that is using its land for commercial purposes would be ill advised to rely on it. I’m guessing that Earth Energy Resources has some commercial purpose for that land.
“On the other hand, property owners can limit their liability by leasing the land to a public entity for recreational purposes (or granting an easement or other use right). I have helped other land owners grant easements to local recreation districts to take advantage of this additional protection.” Update Jan. 22: bill introduced in state legislature to help.
A right to water seepage?
Construction is finally approaching on a water conservation project authorized by Congress in 1988, which will line with concrete the All-American Canal, which carries Colorado River water to the Imperial and Coachella valleys in Southern California. The idea is to reduce the currently high rate of seepage into the ground from the canal, thus preserving more water for the intended users. Now, however, Mexican and Californian groups have sued to stop the project, saying their farms and local economies have come to depend on the seepage. They’re throwing in more conventional environmental claims, too, saying endangered species would be harmed by any change in the current arrangements. (Bettina Boxall, “Suit Is Filed Over Plan to Line Canal”, Los Angeles Times, Jul. 20).
Update: Stifling archaeology, the tribal way
Sen. John McCain (R-Ariz.) is now sponsoring that very troublesome bill, formerly championed by the departed Sen. Ben Nighthorse Campbell of Colorado, to amend the Native American Graves Protection and Repatriation Act so as to expand Indian tribes’ power to assert control over prehistoric human remains not associated with any still-existing tribe (see Oct. 18, 2004). The bill would go far to reverse scientists’ victory in the nine-year court battle over tribes’ asserted right on cultural grounds to reclaim the remains of 9.300-year-old Kennewick Man (Aug. 9, 2004, etc.) Cleone Hawkinson, president of Friends of America’s Past, “says the change would make it impossible to study the earliest inhabitants of North America. ‘American archaeology would come to a standstill,’ she said.” A hearing before the Senate Indian Affairs Committee is scheduled for Jul. 28. (Sandi Doughton, “Fate of Kennewick Man study unclear”, Seattle Times, Jul. 15).
More: reader Carey Gage writes in to advise, “check out Moira Breen’s site on this issue. She has been all over it for years.”
Poker club night
In Palmer Lake, Colo., cops entered the card-playing venue “with guns drawn, lasers trained on people’s heads” according to one present. Palmer Lake police chief Dale Smith described the tactics as “standard habit and practice for these kinds of situations.” (Jane Reuter, “Small-town poker bust criticized as overblown”, Colorado Springs Gazette, Apr. 29)(via Dispatches from the Culture Wars).