Articles Posted in Real Estate & Property Law

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Merrill Chance, a landowner in Osage County, Oklahoma, sued the government to void a lease and various permits that allow Great Southwestern Exploration, Inc. (GSE) to drill for oil and gas beneath his property. He also sought damages from GSE for trespassing on his property. The district court ruled that under 28 U.S.C. 2401(a), Chance’s claims against the government were untimely. Thus, the district court concluded it lacked subject-matter jurisdiction to hear Chance’s claims and dismissed them. It also dismissed Chance’s claims against GSE. While the Tenth Circuit agreed Chance’s claims against the government were untimely, it heeded a warning by the Supreme Court to beware of “profligate use of the term ‘jurisdiction.’” In light of this, the Tenth Circuit found the district court wrongly concluded it lacked subject-matter jurisdiction over Chance’s claims against the government; the claims should have been dismissed for failing to state a claim. The Court affirmed the district court’s judgment declining to exercise supplemental jurisdiction over Chance’s claims against GSE. View "Chance v. Zinke" on Justia Law

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M.A.K. Investment Group, LLC owned several parcels of property in Glendale, Colorado. The City adopted a resolution declaring several of M.A.K.’s parcels “blighted” under state law. Glendale never notified M.A.K. of its resolution or the legal consequences flowing from it. The blight resolution began a seven-year window in which the City could begin condemnation proceedings against M.A.K.’s property. It also started the clock on a thirty-day window in which M.A.K. had a right to seek judicial review of the blight resolution under state law. Receiving no notice, M.A.K. did not timely seek review. M.A.K. argued Colorado’s Urban Renewal statute, both on its face and as-applied to M.A.K., violated due process because it did not require municipalities to notify property owners about a blight determination, or the thirty days owners had to seek review. The Tenth Circuit concluded the statute was unconstitutional as applied to M.A.K. because M.A.K. did not receive notice that Glendale found its property blighted. Because of this, the Court did not decide whether the statute was unconstitutional on its face. As for M.A.K.’s second argument, the Court held due process did not require Glendale to inform M.A.K. about the thirty-day review window. View "M.A.K. Investment Group v. City of Glendale" on Justia Law

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M.A.K. Investment Group, LLC owned several parcels of property in Glendale, Colorado. The City adopted a resolution declaring several of M.A.K.’s parcels “blighted” under state law. Glendale never notified M.A.K. of its resolution or the legal consequences flowing from it. The blight resolution began a seven-year window in which the City could begin condemnation proceedings against M.A.K.’s property. It also started the clock on a thirty-day window in which M.A.K. had a right to seek judicial review of the blight resolution under state law. Receiving no notice, M.A.K. did not timely seek review. M.A.K. argued Colorado’s Urban Renewal statute, both on its face and as-applied to M.A.K., violated due process because it did not require municipalities to notify property owners about a blight determination, or the thirty days owners had to seek review. The Tenth Circuit concluded the statute was unconstitutional as applied to M.A.K. because M.A.K. did not receive notice that Glendale found its property blighted. Because of this, the Court did not decide whether the statute was unconstitutional on its face. As for M.A.K.’s second argument, the Court held due process did not require Glendale to inform M.A.K. about the thirty-day review window. View "M.A.K. Investment Group v. City of Glendale" on Justia Law

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This appeal stemmed from a dispute between Summit Park Townhome Association and its insurer, Auto-Owners Insurance Company, over the value of property damaged in a hail storm. To determine the value, the district court ordered an appraisal and established procedural requirements governing the selection of impartial appraisers. After the appraisal was completed, Auto-Owners paid the appraised amount to Summit Park. But the court found that Summit Park had failed to make required disclosures and had selected a biased appraiser. In light of this finding, the court vacated the appraisal award, dismissed Summit Park’s counterclaims with prejudice, and awarded interest to Auto-Owners on the amount earlier paid to Summit Park. Summit Park appealed, raising six issues of alleged error with the proceedings. The Tenth Circuit affirmed, however, finding that in the absence of a successful appellate challenge to the disclosure order, Summit Park was obligated to comply and did not. The court was thus justified in dismissing Summit Park’s counterclaims. In addition, Summit Park’s failure to select an impartial appraiser compelled vacatur of the appraisal award under the insurance policy. View "Auto-Owners v. Summit Park" on Justia Law

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This appeal arose out of a private enforcement action under Section 505 of the Clean Water Act (CWA), 33 U.S.C. 1365. Defendant-Appellant Ozark Materials River Rock, LLC, appealed a district court’s order approving Plaintiff-Appellee David Benham’s proposed restoration plan of unlawfully filled wetlands in Saline Creek. Ozark was a sand and gravel mining company that operated on property adjacent to Saline Creek in Oklahoma. Benham recreates in Saline Creek and claimed Ozark’s operations degraded his ability to do so. In March 2011, Benham served Ozark with a notice letter pursuant to Section 505, informing the company that it was violating Section 404 of the CWA, 33 U.S.C. 1344. Section 404 required a permit from the Army Corps of Engineers to discharge dredge or fill material into navigable waters if the activity disturbed more than one-half acre of wetland, and Ozark did not have a Section 404 permit. The Army Corps of Engineers had inspected Ozark’s operations in 2010 (again in 2012 and 2013) by driving through the property, but it found no CWA violations. Nevertheless, after receiving Benham’s notice, Ozark hired an environmental consulting firm to perform a Section 404 impact analysis of Ozark’s Saline Creek operations. By June 1, 2011, Ozark had not addressed the CWA violations that Benham alleged in his notice, so he filed the underlying citizen suit, as authorized by Section 505. The district court held a bench trial and found that Ozark’s construction of a roadway in Saline Creek and the filling of its surrounding wetlands without a permit constitute a continuing violation of the CWA. The district court imposed a civil penalty of $35,000 and ordered briefing on a restoration plan for the unlawfully filled wetlands. On June 1, 2017, the district court issued an order adopting (substantially all of) Benham’s proposed restoration plan; one element of the plan created a conservation easement for the restoration site. Ozark raised several issues on appeal challenging the district court’s order and underlying findings of fact and conclusions of law. But finding no reversible error, the Tenth Circuit affirmed the district court. View "Benham v. Ozark Materials River Rock" on Justia Law

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The United States Bureau of Land Management leased 2,500 acres of geothermal mineral rights in Hidalgo County, New Mexico to Plaintiff Lightning Dock Geothermal HI-01, LLC (LDG), a Delaware company. LDG developed and owned a geothermal power generating project in Hidalgo County. LDG also developed a geothermal well field on the subject tract as part of its project. Defendant AmeriCulture, a New Mexico corporation under the direction of Defendant Damon Seawright, a New Mexico resident, later purchased a surface estate of approximately fifteen acres overlying LDG’s mineral lease, ostensibly to develop and operate a tilapia fish farm. Because AmeriCulture wished to utilize LDG’s geothermal resources for its farm, AmeriCulture and LDG (more accurately its predecessor) entered into a Joint Facility Operating Agreement (JFOA). The purpose of the JFOA, from LDG’s perspective, was to allow AmeriCulture to utilize some of the land’s geothermal resources without interfering or competing with LDG’s development of its federal lease. Plaintiff Los Lobos Renewable Power LLC (LLRP), also a Delaware company, was the sole member of LDG and a third-party beneficiary of the JFOA. The parties eventually began to quarrel over their contractual rights and obligations. Invoking federal diversity jurisdiction, Plaintiffs LDG and LLRP sued Defendants Americulture and Seawright in federal court for alleged infractions of New Mexico state law. AmeriCulture filed a special motion to dismiss the suit under New Mexico’s anti-SLAPP statute. The district court, however, refused to consider that motion, holding the statute authorizing it inapplicable in federal court. After review of the briefs, the Tenth Circuit Court of Appeals agreed and affirmed. View "Los Lobos Renewable Power v. Americulture" on Justia Law

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The United States Bureau of Land Management leased 2,500 acres of geothermal mineral rights in Hidalgo County, New Mexico to Plaintiff Lightning Dock Geothermal HI-01, LLC (LDG), a Delaware company. LDG developed and owned a geothermal power generating project in Hidalgo County. LDG also developed a geothermal well field on the subject tract as part of its project. Defendant AmeriCulture, a New Mexico corporation under the direction of Defendant Damon Seawright, a New Mexico resident, later purchased a surface estate of approximately fifteen acres overlying LDG’s mineral lease, ostensibly to develop and operate a tilapia fish farm. Because AmeriCulture wished to utilize LDG’s geothermal resources for its farm, AmeriCulture and LDG (more accurately its predecessor) entered into a Joint Facility Operating Agreement (JFOA). The purpose of the JFOA, from LDG’s perspective, was to allow AmeriCulture to utilize some of the land’s geothermal resources without interfering or competing with LDG’s development of its federal lease. Plaintiff Los Lobos Renewable Power LLC (LLRP), also a Delaware company, was the sole member of LDG and a third-party beneficiary of the JFOA. The parties eventually began to quarrel over their contractual rights and obligations. Invoking federal diversity jurisdiction, Plaintiffs LDG and LLRP sued Defendants Americulture and Seawright in federal court for alleged infractions of New Mexico state law. AmeriCulture filed a special motion to dismiss the suit under New Mexico’s anti-SLAPP statute. The district court, however, refused to consider that motion, holding the statute authorizing it inapplicable in federal court. After review of the briefs, the Tenth Circuit Court of Appeals agreed and affirmed. View "Los Lobos Renewable Power v. Americulture" on Justia Law

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NDSC Industrial Park, LLC (“NDSC”) appealed a district court order dismissing its “Consent Decree Order Motion.” In the late 1990s, the United States and the State of Colorado each filed complaints against Colorado & Eastern Railroad Company (“C & E”) under CERCLA. These complaints sought reimbursement of response costs associated “with the release or threatened release of hazardous substances at the Sand Creek Industrial Site located in Commerce City and Denver, Colorado.” In an effort to avoid protracted litigation, the parties entered into a partial consent decree (the “Consent Decree”) on April 13, 1999. Pursuant to the Consent Decree, C & E agreed to sell two parcels of land, the OU3/6 Property and the OU1/5 Property (collectively the “Properties”), and pay the net proceeds of the sales to the United States and Colorado. In 2002, the remediated OU1/5 and OU3/6 Properties were put up for auction by the United States pursuant to the Consent Decree. NDSC was the winning bidder. Prior to closing on the purchase of the Properties, NDSC was made aware that C & E had already conveyed its fee interest in a right-of-way. In 2014, NDSC filed suit in Colorado state court to quiet title to the railroad right-of-way against C & E, and other interested parties in the Properties. The district court dismissed the motion because NDSC lacked standing to enforce the terms of the consent decree. On appeal, NDSC claimed the district court erred in concluding it: (1) was attempting to enforce the consent decree, as opposed to seeking a limited declaration regarding the meaning of the consent decree; and (2) did not have standing to seek a declaration that a conveyance of property violated the terms of the consent decree. Finding no reversible error in the district court’s dismissal, the Tenth Circuit affirmed. View "United States v. Colorado & Eastern Railroad Co" on Justia Law

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The issue this case presented for the Tenth Circuit’s review centered on how, or even whether, an important-but-subtle and often confusing doctrine limiting federal-court jurisdiction should apply to a unique Colorado procedure for “nonjudicial” foreclosure of mortgages. Plaintiff Mary Mayotte was the debtor on a note held by U.S. Bank, NA. Wells Fargo serviced the loan for U.S. Bank. One allegation was that Plaintiff contacted Wells Fargo to modify her loan, that Wells Fargo told her she needed to miss three payments to secure a modification, and that she eventually took this advice. Rather than granting her a modification, however, Wells Fargo placed her in default. She further alleged the defendants fabricated documents, that their actions rendered her title unmarketable, that they had no ownership interest in her promissory note or property, that they have been unjustly enriched by accepting payments not due them, that they damaged her credit standing, and that they violated the Real Estate Settlement Procedures Act, and the Fair Debt Collection Practices Act. The jurisdictional doctrine raised by this appeal was the Rooker-Feldman doctrine, which forbade lower federal courts from reviewing state-court civil judgments. Colorado Rule of Civil Procedure 120 requires creditors pursuing nonjudicial foreclosure to first obtain a ruling by a Colorado trial court that there is a reasonable probability that a default exists. The Tenth Circuit determined it did not need to decide whether the Rooker-Feldman doctrine barred a federal court challenge to a Rule 120 proceeding or ruling: the federal-court suit here was not barred because none of the claims (at least none pursued on appeal) challenged the Rule 120 proceedings or sought to set aside the Rule 120 ruling. The Court left that issue for the district court on remand to consider what effect, if any, the Rule 120 ruling may have had on this case under state-law doctrines of claim and issue preclusion. View "Mayotte v. U.S. Bank National Association" on Justia Law

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The issue this case presented for the Tenth Circuit’s review centered on how, or even whether, an important-but-subtle and often confusing doctrine limiting federal-court jurisdiction should apply to a unique Colorado procedure for “nonjudicial” foreclosure of mortgages. Plaintiff Mary Mayotte was the debtor on a note held by U.S. Bank, NA. Wells Fargo serviced the loan for U.S. Bank. One allegation was that Plaintiff contacted Wells Fargo to modify her loan, that Wells Fargo told her she needed to miss three payments to secure a modification, and that she eventually took this advice. Rather than granting her a modification, however, Wells Fargo placed her in default. She further alleged the defendants fabricated documents, that their actions rendered her title unmarketable, that they had no ownership interest in her promissory note or property, that they have been unjustly enriched by accepting payments not due them, that they damaged her credit standing, and that they violated the Real Estate Settlement Procedures Act, and the Fair Debt Collection Practices Act. The jurisdictional doctrine raised by this appeal was the Rooker-Feldman doctrine, which forbade lower federal courts from reviewing state-court civil judgments. Colorado Rule of Civil Procedure 120 requires creditors pursuing nonjudicial foreclosure to first obtain a ruling by a Colorado trial court that there is a reasonable probability that a default exists. The Tenth Circuit determined it did not need to decide whether the Rooker-Feldman doctrine barred a federal court challenge to a Rule 120 proceeding or ruling: the federal-court suit here was not barred because none of the claims (at least none pursued on appeal) challenged the Rule 120 proceedings or sought to set aside the Rule 120 ruling. The Court left that issue for the district court on remand to consider what effect, if any, the Rule 120 ruling may have had on this case under state-law doctrines of claim and issue preclusion. View "Mayotte v. U.S. Bank National Association" on Justia Law