Neighborly Disputes of the Arboreal Variety: Encroachment Trees

Imagine that you have a neighbor with a splendid, towering cottonwood tree that sits so close to your property line that roots and branches actually cross over into your property.  In the warmer months, the tree provides your yard with a lovely bit of shade, and you build a small stone patio so that you can enjoy your yard in the respite of the tree’s umbral aegis. These circumstances proceed uninterrupted for a decade, until your neighbor sells their property and new property owners move in. These new owners, however, decide they don’t like the tree and tell you one day as you chat over the fence that they intend to chop the tree down.  You ask them to reconsider, but they are resolute.  Do you have any legal recourse to prevent the impending tragedy?

            As you may have guessed, the answer is “probably not.”  As with most things in the law, though, the devil’s in the details.  Your ability to block the proposed felling depends on your possession of a cognizable legal interest in the tree.  The leading cases in Colorado regarding the allocation of legal interests in such trees are Rhodig v. Keck, 421 P.2d 729 (Colo. 1966) and Love v. Klosky, 413 P.3d 1267 (Colo. 2018).  The Supreme Court of Colorado has decided that trees, in these border-line cases, fall into one of two categories: so-called “true boundary line trees,” and “encroachment trees.” “True boundary line trees” are “trees deriving their nourishment from roots extending on both sides of the [property] line, and with bodies so directly over the line, and necessarily on both sides of that line, that it could not be determined upon which side of the line the tree was originally planted.”  DuBois v. Beaver, 25 N.Y. 123, 126 (1862).  “Encroachment trees,” on the other hand, are simply those that “began life entirely on one person’s property only to migrate partially to another’s.”  Love, 413 P.3d at 1272.

            If your tree is a “true boundary line case,” congratulations, you and your neighbor are tenants-in-common with respect to the tree, meaning you have a legally cognizable property interest in the tree.  If, however, the locus of the tree’s inception is not so indeterminable, such as in our hypothetical, then the tree is simply an “encroachment tree.”  In such circumstances, the owner of the tree is the owner of the land on which the tree was planted.

            But let’s assume slightly different facts than those above.  Assume, instead, that, years ago, your neighbor came to you and asked if you’d like to split the cost of a sapling to be planted near the joint property line, because he wanted some shade and thought you might enjoy that as well.  You agree, and you and your neighbor jointly plant the sapling.  Or, imagine that you neighbor plants the tree himself, but, recognizing the benefit you will derive from it, you offer to help him maintain the tree, and he accepts.  Or, imagine that, perhaps, at this time, your properties were not divided by a fence, and you and your neighbor agreed to use the tree as a landmark that separated where one party’s property ended and the other’s began, only to later learn that the tree was in fact planted entirely within your neighbor’s property.

            Under those circumstances, though the tree is technically an “encroachment tree” located entirely on your neighbor’s property, you nevertheless are a tenant-in-common with respect to the tree.  However, the burden will be on you to prove these circumstances, so save receipts, photos, e-mails, or anything else that might suggest the requisite circumstances exist!

Submitted by: Nathaniel Gaffney     

 

Finding the Right Attorney

Finding and hiring an attorney can be an overwhelming task, even for those already familiar with the legal system or who have worked with an attorney before.  The following are some tips on finding the right attorney for your legal needs.

1)  Find an attorney that has experience handling your legal issue.

This is rather obvious, but finding an attorney that has experience working with your type of case or issue on a regular basis is key—especially for issues that are particularly nuanced or complex.  Most attorneys specialize in certain areas of law, but it’s important to try and go one step further and find someone who is familiar with your specific issues.  Finding attorneys that work in general areas—family, probate, patent, natural resource law, for example—is generally easy to do.  But once you find some options, it’s important to do a little extra digging to see if the attorneys you’ve identified have worked in that particular field or with your particular issue.

Finding the right attorney for your needs obviously requires some research.  Starting with a Google search is perfectly fine and will give you an initial sense of who in your area you might want to research further.  But, we all know Google can often lead to an overwhelming amount of results—leaving you nearly back where you started.   

To help narrow down your search and/or get feedback from actual people in your community, social media can be very helpful.  Asking for recommendations on Facebook or Nextdoor (a neighborhood resource app that lets users post and interact on various neighborhood-related things), can yield very helpful results.  You’ll also find you’ll get recommendations for smaller firms or solo practitioners that wouldn’t necessarily show up on the first few pages of a Google search.

Finally, your county’s Bar Association is an excellent resource for finding an attorney.  Local bar associations often keep directories sorted by practice area, and a visit to their website can help you avoid the clutter of Google and start narrowing down potential options.  Don’t hesitate to call your local bar association to ask any questions you may have.

2)  Narrow your options, but expand your research

Once you’ve narrowed your choices down to a few options, the next step is performing some more specific research.  An obvious place to start is the attorney (or their firm’s), website, which will give you some general background as to both.  This also helps you get a “feel” for the firm—an important factor to consider given you’ll be working with your attorney closely on issues that are very important to you.  Most attorneys also have their bio and resume listed on their website, giving you a sense of their background and experience.  Again, this helps in getting a sense of whether the attorney is the right person for your case and has experience handling your specific legal issue.

Next, and perhaps more importantly, call the firm to ask any questions you may have.  A firm’s website likely won’t have all the answers you need before retaining an attorney, so speaking with an actual person is critical.  Often the attorney or someone working for them can answer specific questions about their practice area, experience, and yes, their fees (another major factor to be considered).

3)  Meet with your prospective attorney

The final step is meeting face-to-face with your prospective attorney.  Though this seems like another obvious tip, it is critical you get a sense of their personality.  You want to find someone you can work with on complex and sensitive issues, and someone you obviously trust to handle those issues.  In a way, you’re interviewing the attorney to make sure they’re the right fit for you.  A few less obvious topics you’ll want to address are making sure the attorney has the time and resources to devote to your case.  You can also ask about the attorney’s typical strategy in approaching a case like yours and make sure you’re both on the same page about your needs and goals.  There’s simply no substitute for an in-person meeting to make sure your attorney is the right fit for you.

Finding and hiring an attorney can be a stressful and time-consuming task, especially when you’re already dealing with a stressful and time-consuming legal issue.  But, the importance of thoroughly researching and vetting your options cannot be overstated.  Hopefully, the tips above can help make the process of finding the right attorney a little less daunting.

Submitted by Nathan A. Klotz

DOMESTIC RELATIONS PROCEEDINGS AND VARIOUS POTENTIAL EXPERTS:

While a Dissolution of Marriage proceeding in Colorado can be completed in as little as 91 days, it is more typical for a case to take between six months to one year.  This additional time is often due to the need to involve various experts.  A complete understanding of the potential experts involved in a family law matter can help ensure your case is completed as quickly as possible.

The need for experts may come from an unresolved issue with parenting time, disagreements regarding a spouses’ earning capacity, or concerns regarding the value of a business.  When parties decide they are no longer in a place to stay married, finding common ground and peace in the chaos can seem near impossible. This is where the assistance of an expert can be extremely useful in resolving family law disputes relatively amicably.

Domestic relations cases utilize a number of different experts for a wide variety of matters. Below is an outline of some of the most commonly used experts and a general explanation of how they may be useful in resolving your case.

Mediator: A mediator is simply a third-party that attempts to help people involved in a conflict come to a mutual agreement. In most counties in Colorado, the Court will require the parties to attend mediation in an effort to prevent the need for time-consuming and costly litigation. If a party is able to attend mediation and come to an agreement on all outstanding matters, the Court will allow them to complete their divorce proceeding with very little involvement by the Court. Mediators have a wide range of backgrounds and skill sets.  When deciding which mediator to use for a domestic relations matter, it is vital to look for a mediator with specific experience in resolving family law disputes.  A party to a divorce would be wise to select an attorney or former judge with extensive family law experience as their mediator. 

Real Estate Appraiser:  One of the most common disputes during a divorce proceeding arises when one party wishes to remain in the marital home.  In most cases, this will require the party to “buy-out” the other parties’ interest in the home.  In order to determine a fair “buy-out” price, the parties must agree to a fair market value for the home.  Naturally, the party wishing to remain in the home will assert a relatively low value, while the party receiving the “buy-out” will want to assign the property a higher fair market value.  To resolve these types of disputes, many parties to a divorce proceeding will utilize the services of a professional real estate appraiser.  While the opinion of a real estate appraiser is not binding on a court, a professional appraisal performed by a qualified expert can go a long way towards allowing the parties to reach a settlement, or if necessary, to present powerful evidence regarding the value of the property to the Court at trial. 

Parenting Coordinator/Decision Maker (PCDM): A Parenting Coordinator (“PC”) is a mutually agreed upon third party that assists families with resolution of disputes regarding the allocation of parental responsibilities and in implementing the terms of the parenting plan.  The PC can develop guidelines for communications between the parties, inform the parties as to appropriate resources, and assist the parties in developing strategies to minimize conflict.  Notably, while a PC can try and assist the parties in resolving disputes, a PC is not authorized to resolve the dispute themselves.  This is role is reserved for a Decision-Maker (“DM”).  A DM fulfills many of the same roles as a PC, but with the additional ability to actually make a binding decision regarding a disagreement if the parties are unable to reach an agreement on their own.     Because the roles of a PC and DM are similar and often overlap, parties to a domestic relations proceeding may see the roles combined as a “PC/DM”.  A PC/DM can be useful in resolving post-decree issues that are too minor to justify involving attorneys/legal system, but nevertheless require resolution.  Frequent subjects on which PC/DMs are involved included choice of school for the minor children, disputes regarding extracurricular activities, medical issues, and travel issues.

Child and Family Investigator (CFI)/Parental Responsibilities Evaluator (PRE): A Child and Family Investigator (“CFI”) or Parental Responsibilities Evaluator (“PRE”) is usually a licensed mental health professional with specialized knowledge in the field of childhood development. Typically, a CFI or PRE is appointed by the Court when the parties are unable to agree on parenting time and/or decision-making responsibility for the minor children. The CFI/PRE will investigate the disputed issues, meet with the parties and the children, contact collateral witnesses, and issue an expert report detailing their recommendations as to how to allocate parental responsibilities in the children’s best interests.  A CFI is the less intensive option and has a maximum fee of $2,750 per case.  The PRE process is more intensive and time-consuming.  There is no maximum fee for a PRE.  With many PREs charging between $200 and $350 per hour, it is not unusual for PREs fees to exceed tens of thousands of dollars.  The PRE process is typically utilized in cases with serious concerns regarding a parties’ mental health, drug/alcohol issues, or domestic violence, whereas the CFI process is more appropriate when parties have minor disputes regarding parenting time or decision-making. The benefit of a CFI/PRE in the dispute resolution process cannot be understated. These professionals are often essential to avoiding costly litigation, and furthermore, often lead to a more hand-tailored parenting plan that benefits the minor children.

Vocational Evaluators: A Vocational Evaluator is an expert that helps determine a party’s reasonable earning capacity from appropriate employment. It is not uncommon for one party to have left the workforce for some period of time during a marriage or to be voluntarily under-employed.  This can lead to disputes regarding maintenance and child support, as these calculations are based on the parties’ respective incomes.  A Vocational Evaluator meets with the subject of the evaluation, gains an understanding of the subject’s skills, abilities, training, and qualifications, then reviews the current labor market to determine a reasonable earning capacity.

Business Valuator: A Business Valuator is an expert that is used to establish the potential value of a business.  This type of valuation is needed when parties’ to a marriage own businesses either together or individually. A business can often be the single largest asset in a divorce proceeding, and it is crucial to obtain an expert opinion as to the value of any business asset.  The valuation of a business is a highly complex task requiring the services of a professional.  The income, assets, liabilities, and growth prospects can all impact a business’s valuation, and it is difficult if not impossible for parties to value a business without the assistance of a trained professional.

 

Submitted by Joshua E. Anderson

The Cheyenne Ridge Project and the Story of My Career

I got started in energy law working for Environment Colorado in 2004, where I led the organization into the PUC breach to contest a new coal-fired power plant that was proposed in 2004.  After that banner year for me - which also included passage of Colorado’s Renewable Energy Standard, I started working at a water law firm.  About two years later I got a call from Matt Jacobs, someone I didn’t know.  He had heard my name from Ron Lehr, one of the leaders in the Colorado electric space whom I had collaborated with while working at Environment Colorado.   Matt had a start-up wind development company called EnCompass.  Having virtually no experience in business and only some exposure to utilities law, I jumped at the chance to work on a wind lease.  So I gathered every able body I could at my firm with any remote connection to energy or land issues into my first meeting with Matt, found a CLE on the subject, and fumbled my way through the meeting. It worked!   I was hired to work on a wind project.

    We had gotten a draft wind lease put together after a few months, when Matt was whisked away by Tradewind Energy.  As my luck would have it, Matt brought me along with him to work on a Colorado project.  Matt was sure he had identified the windiest site in Colorado for Tradewind.  The land was located about 20 miles south of Burlington, Colorado, right on the Kansas border where the wind regime was more like Kansas than Colorado.  It had expansive terrain, incredible and consistent wind speeds, and the Eastern Plains Transmission Project, a high voltage transmission line designed by Tri-State Generation and Transmission Association to bring coal power from its proposed plant in Holcomb, Kansas to Colorado, was proposed to run right through the center of the project.   It was called the Cheyenne Ridge Project.

    But soon after, in 2008, the Holcomb plant was rejected by Kansas Governor Kathleen Sebelius, who later would go on to head up the drafting and passage of the Affordable Care Act under President Obama.  The decision was a striking display of political courage in a state where every democrat in office is a short-timer from their inauguration.   Not long after the fall of Holcomb, Tri-State shelved the Eastern Plains Transmission Project (“EPTP”).  The Cheyenne Ridge Project was hung out to dry. 

    There was only one transmission line close to the project, and that was a medium voltage line owned by Tri-State, who at the time was decidedly not interested in buying wind power.  The only real buyer was Xcel Energy, who had started its first wind acquisitions for Colorado’s renewable energy standard in 2006.   And there was no transmission solution to reach Xcel’s load without the EPTP. 

    The Cheyenne Ridge Project tasked me with figuring out a transmission solution for its project.  At this job, I largely failed.   Each year, the utilities would discuss, even study, sometimes for years, proposed big transmission projects like the High Plains Express or the Lamar to Front Range.  But each time a decision got close, the football was pulled.  As a result, transmission was always right around the bend, but never in sight.

    My task ran into the brick wall constructed by the transmission-providing utilities in Colorado, who guard their transmission kingdom jealously.  Since the passage of PURPA, utilities have slowly lost ground in their control of access to the transmission system, and in the process surrendered parts of their monopoly control.  Transmission planning is one remaining bastion, however, allowing the utilities effective control over the development of their systems.  Without transmission access, independent power producers ("IPPs") have nothing.

    Over the next ten years I worked on this project with Matt and then other project managers.   Sometimes we were fighting both internally and externally to keep the project going.  Through this work, I became involved in the wind industry, and that led me further into utilities law.  After representing Tradewind as a member of a trade group for several years, I was lucky to find myself asked to represent that group.  I was hired by other IPPs based on the experience I gained with Tradewind, and eventually found myself with an adequate amount of experience to keep going.  And Matt and I became great friends, attending pitch after pitch with utilities.

     Things changed in 2016 when Xcel made the leap into the wind business.  It purchased the Rush Creek project.   The project was not exactly the neighbor of Cheyenne Ridge, but it was in the neighborhood.  Because there was no transmission to the area, Xcel made the move to build a giant extension cord, the Rush Creek line, some 96 miles east into the windiest area of Colorado, and twenty miles south of Burlington, to access its project.  It was as close to a knock at the front door Cheyenne Ridge had seen since the EPTP.   

    Xcel then filed its 2016 Electric Resource Plan.  It noted that bids would be accepted on the Rush Creek line, and the Rush Creek line was going to draw the most attention in the state, again because of the lack of transmission anywhere else.  Soon after that, the Colorado Energy Plan was announced, and suddenly the resource need was gigantic. 

    And Matt was right, the Cheyenne Ridge Project was the windiest site in Colorado.  With transmission now available, it was the site Xcel selected for itself.  And last week, in April 2019 and over ten years after Matt walked into the office of a rather green lawyer (pun intended), the PUC approved the Cheyenne Ridge Project.  If I am luckier still, I will be there to help break ground for the project that helped break so much ground for me.

Submitted By: Mark Detsky

The Colorado Energy Plan and the Far Side of the Rubicon River

The phrase “Cross the Rubicon” is a reference to the ultimatum that the Roman Senate delivered to Julius Caesar not to bring his army across the Rubicon River.  When Caesar ignored that warning, the period of imperial Rome had begun.  Thus, to cross the rubicon has come to signify a decision point from which there is no turning back.  The nature of the analysis is such that the rubicon is usually only able to be seen in hindsight.  This is not so in the electric generation sector (in Colorado at least).  We are so far past the rubicon where renewable energy resources have outpaced the large coal-fired generation that dominated the 20th century that we can review the next big decision in Colorado energy policy as logical today to what was once only a “pipe dream” (a story for another day).  That decision point is known as the Colorado Energy Plan (CEP).

The CEP is an offshoot or add-on to the pending Electric Resource Plan (ERP) process of Public Service Company of Colorado (dba Xcel Energy) currently before the Colorado Public Utilities Commission.  ERPs occur every 4 years; though this current plan dates back to October 2015 (when it was first due).   Xcel serves approximately 65% of Colorado territory and, with over 1.2 million customers and approximately 7000 megawatts (MW) of demand on its system, is the largest utility by load as well.  The CEP would result in the early retirement (by 10 years) of the Comanche 1 and 2 coal-fired generation units.  These units have a capacity of about 660 MW.  The CEP would replace that capacity, along with 450 MW of load-related resource need, with a plan including a range approximating 1000 MW of wind, 600 MW of solar, and 600 MW of natural gas-fired units.  

The CEP has a number of associated parts.  There is a utility ownership target that independent power groups such as our client the Colorado Independent Energy Association (CIEA) negotiated in the settlement agreement that brought forward the CEP.  The targets are a range of 40 – 60 percent for renewables and 60 -75 percent for gas units.  The coal-fired units will have their remaining amortized capital costs paid off by reducing the revenue stream intended for renewable energy’s incremental costs, known as the “RESA”.  The RESA collects 2% of customer bills to pay for the incremental system costs for acquiring renewable resources.  For large-scale renewable resources, there no longer is any incremental cost because those resources these days cause overall system cost savings.  So, a cut for the RESA to pay down call redirects revenues to a similar purpose.  There are also transmission elements to the plan. 

The CEP has been bolstered by the remarkably low cost proposals for wind, solar, and energy storage that Xcel received in its solicitation for the ERP from independent power producers (IPPs).  The median price of the wind bids is less than 2 cents per kilowatt (kW) of capacity, and less than 3 cents/kW for solar capacity.  These prices have not before been seen in Colorado or much of the world for that matter.  In addition, Xcel is seeking to join the Southwest Power Pool market, where units are dispatched by an objective third party and not by each utility. Simultaneously, Xcel has taken notice that in areas of the country with established markets, coal plants are either retiring or sitting idle as uncompetitive.

The value of the bid prices received has allowed Xcel to focus its CEP case to the Public Utilities Commission on straight economics, before reaching the environmental benefits or market risks.  This process has allowed consumer groups and large industrial customers to support bringing the CEP forward.  But this analysis, of course, misses the point.  The CEP would not exist but for the urgent need to mitigate human contributions to climate change.   The costs of inaction on climate change dwarf any economic analysis on rate impacts when you consider that our functioning ecosystem is what allows our economy to exist.

The CEP is not the first coal retirement plan, even in Colorado.  Coal plants are being retired – or stranded – across the country also due to economics. The costs of using fossil fuels and mitigating the resulting emissions cannot compete against smaller plants that use natural gas or no fuel at all.  In 2010, Colorado passed the Clean Air Clean Jobs Act (CACJA), that retired approximately 900 MW of Xcel-owned coal-fired generation.  In that case, the tension between fossil fuel and renewables was at its zenith. The coal industry was still fighting back with traditional arguments at the PUC and in the courts.  When the CACJA was approved, the implementation of that statute was the march across the Rubicon River.

But today those days are behind us.  The paradigm shift has occurred.  The coal industry at the February 2018 CEP hearing solely debated the modeling and the accounting mechanism to recover the retirement of the Comanche 1 and 2 Units, even though there is no allowance for overall bill increases to accomplish the CEP.  When anything other than ratepayer bills are considered in the analysis, the competition isn’t even close.  This is not good news in the near term for regions that depend on a coal economy, but it is overall the best news for humanity.  The CEP is what life is like when the rubicon has been crossed, and the future that was envisioned decades ago for a renewable generation portfolio using natural gas as a “bridge fuel” has actually arrived.  Renewable technologies were given the opportunity to prove their worth, and they have met that challenge.  For the coal industry, Rome lies ahead.

Submitted by: Mark D. Detsky