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Construing the Colorado Ski Safety Act of 1979, on May 31, the Colorado Supreme Court, in Fleury v. IntraWest Winter Park Operations Corp., held that a fatal avalanche that occurred within the bounds of the Winter Park ski resort was an “inherent danger and risk of skiing” and the Act precludes skiers or their families from bringing claims against the operators for any resulting injuries. The Act is part of Title 33 of the Colorado Revised Code governing Wildlife and Parks and Outdoor Recreation. The Act and the protections provided by it illustrate once more the fact that state legislatures often make public policy decisions like this which balance the importance of a particular industry to a state against the risks that the public will knowingly take in engaging in these activities.

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Caring Hearts Personal Home Serv., Inc. v. Burwell, a U.S. Court of Appeals for the Tenth Circuit Medicare reimbursement case, describes the challenges confronting federal administrative agencies and the regulated community at a time when the demands on and the growth of government are somewhat astonishing. Judge Gorsuch begins his opinion as follows:

“Executive agencies today are permitted not only to enforce legislation but to revise and reshape it through the exercise of so-called ‘delegated’ legislative authority… The number of formal rules these agencies have issued thanks to their delegated authority has grown so exuberantly it’s hard to keep up. The Code of Federal Regulations now clocks in at over 175,000 pages. And no one seems sure how many more hundreds of thousands (or maybe millions) of pages of less formal or ‘sub-regulatory’ policy manuals, directives, and the like might be found floating around these days. For some, all this delegated legislative activity by the executive branch raises interesting questions about the separation of powers… For others, it raises troubling questions about due process and fair notice—questions like whether and how people can be fairly expected to keep pace with and conform their conduct to all of this churning and changing ‘law’… But what happens if we reach the point where even these legislating agencies don’t know what their own ‘law’ is?”

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Many construction projects are subject to the regulatory requirements of the Clean Water Act (CWA), including the supremedetermination whether an earth-moving operation is covered by a “dredge and fill” permits administered by the U.S. Army Corps of Engineers. If there is a question about the applicability of the CWA to a project, the of Corps of Engineers will determine, on its own initiative or following a request for a determination by the project sponsor, whether or not the project is subject to the CWA. However, the administrative procedures employed by the Corps of Engineers to decide whether the project is covered can often be so costly and time-consuming that the project may be abandoned. Now, in the case of the U.S. Amy Corps of Engineers v. Hawkes Co., Inc., decided May 31, the Supreme Court has acknowledged some of these costs, and the serious legal consequences that attend these proceedings, as it has ruled that in appropriate cases, a controversial jurisdictional determination by Corps officials that a project is covered by the CWA is subject to judicial review by the federal courts.

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A case that has been closely followed by oil and gas and other interests which involves groundwater disputes has now been decided by the Texas Supreme Court. In Coyote Lake Ranch, LLC, v. The City of Lubbock, decided on May 27, the Court held that the “accommodation doctrine,” a doctrine developed by the courts to assist in the resolution of disputes between landowners and their oil and gas lessees, can play a significant role in the resolution of disputes between landowners and the owner of an interest in the groundwater beneath the land. The doctrine refers to the rule that “[a]bsent an agreement to the contrary, an oil-and-gas lessee has an implied right to use the land as reasonably necessary to produce and remove the minerals but must exercise that right with due regard for the landowner’s rights. In so ruling, the Court reversed the U.S. Court of Appeals for the Seventh District sitting in Amarillo, Texas.

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At the age of 21, in 1861, Oliver Wendell Holmes, Jr. and many of his friends enlisted in the Massachusetts Infantry after thememorialday outbreak of the Civil War. He saw the worst of the war, and was nearly killed several times and suffered two grave wounds. By 1864, at the end of his enlistment, he had had his fill of it. Yet his experience left an indelible mark on him, as it did on most of his contemporaries, and he was grateful for the opportunity to serve his county in these great battles. Throughout his long life, he would recall where he was, on a day 50 or 60 years before, when the anniversaries of such battles as Balls Bluff and Antietam triggered his memories. Continue Reading ›

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For bid requests issued on or after July 1, 2016, California school districts, with approval of their governing board, Schoolmay procure design-build contracts for projects in excess of $1M, awarding the contract to either the low bid or the best value. The threshold currently is $2.5M. The new threshold was enacted as part of Assembly Bill 1358 (Dababneh) and will remain in place until January 1, 2025, unless a later enacted statute deletes or extends that date. As those in the industry already familiar, “design-build” refers to “a project delivery process in which both the design and construction of a project are procured from a single entity.” Design-build contractors should also take note that the new law will require that certain information is verified under penalty of perjury.

Photo:  Alan Levine, School, Taken May 24, 2012 – Creative Commons

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Public works contracts awarded on or after July 1, 2016 will be subject to the more expansive definition of public works added by California Assembly Bill 219 (Daly). For purposes of Article 2 of California’s Labor Code, commencing with Section 1770, the term “public works” will include “the hauling and delivery of ready-mixed concrete to carry out a public works contract, with respect to contracts involving any state agency, including the California State University and the University of California, or any political subdivision of the state.” Those who will be encompassed within the new definition will be required to pay the applicable prevailing wage rate, which will be the rate for the geographic area in which the concrete factory or batching plant is located, and to provide employee payroll and time records, as specified.

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In A New Cybersecurity Regime and a New Regulation to Mandate Secure Information Systems for Government Contractors, Cybermy colleague Travis Mullaney and I discuss Congress’ recent enactment of a wave of legislation to address ongoing cybersecurity threats, the Executive Branch’s recent adoption of new cybersecurity regulations, and other Federal initiatives that are underway and that will bring additional promised change requiring enhanced cybersecurity protections. In our Advisory, we discuss what government contractors need to do to prepare for these changes.

Photo:  Intel Free Press, Computer Security, Taken Sep. 4, 2012 – Creative Commons

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On May 20, 2016, the U.S. Court of Appeals for the Eighth Circuit, in Ebert, et al., v. General Mills, Inc., reversed the federal district court’s decision to grant class certification in an environmental contamination lawsuit. The district court had found that the requisites of Federal Rule of Civil Procedure 23 had been satisfied with respect to the proposed class of “all persons and non-governmental entities that own residential property within the ‘Class Area.'” The proposed class members were expected to assert five legal claims: (1) violation of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); (2) common law negligence; (3) private nuisance; (4) willful and wanton misconduct; and (5) violation of the Resource Conservation and Recovery Act (RCRA). The Eight Circuit disagreed with the district courts findings, instead concluding that the proposed class lacks the requisite commonality and cohesiveness to satisfy Rule 23.

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In U.S. Department of Labor More Than Doubles Minimum Salary Levels for FLSA Overtime Exemptions, Pillsbury attorneys Julia Judish, Rebecca Carr Rizzo and John Scalia discuss the U.S. Department of Labor’s much-anticipated Final Rule amending the Fair Labor Standards Act regulations implementing the exemption from minimum wage and overtime pay for executive, administrative, and professional employees (EAP) and for highly compensated employees (HCE). A projected 4.2 million exempt employees may be impacted by the new rule. Employers have six months to come into compliance with the new rule.