The Cotter Corp. owned the non-operating uranium mill property south of Cañon City for decades before it was sold Friday to Colorado Legacy Land.  The Central City Schwartzwalder Mine also was sold to the company.  Firm attorneys Polly Jessen, Bill Silberstein, Hanna Gustafsson, and Lilya Mitelman represented the buyer.

For more details regarding this new ownership, see The Cañon City Daily Record‘s story.

As concerns about NextGen flight patterns spread throughout the country, Kaplan Kirsch & Rockwell managing partner, John Putnam, was quoted in a recent article in the Orlando Sentinel about the effect of NextGen flight patterns in Phoenix.  He discusses noise implications of shifts in flight patterns that are raising concerns in central Florida.

In a complete victory for the Firm’s client, Louisville Regional Airport Authority, the U.S. Court of Appeals for the Sixth Circuit on January 22 dismissed a petition for review challenging the environmental review for a project to trim and remove trees in the approach path to Louisville’s Bowman Field. The case was unusual because the Airport Authority decided not to seek FAA funding for the project after repeated delays in completion of the environmental assessment. The Court agreed with the Airport Authority that its decision not to seek federal funding meant that it did not have to comply with federal environmental review. The Court also held that the petitioners did not have standing because a remand of the matter to FAA would not have given them the relief they sought because the Authority could complete the tree trimming project without FAA approval. The project is nearly complete. For further information,please contact Peter Kirsch.

We are excited to share that the following attorneys were recently selected for inclusion in 5280‘s Top Lawyers for 2018:

• Polly Jessen for Environmental Law
• Lori Potter for Environmental Law

For the past four years, 5280 annually assembles a list of Denver’s top lawyers.  A survey was made available to all licensed attorneys in the seven-county metro area to vote for the most skilled in each legal industy.  Further information on the selection process and the full list of top lawyers is available at 5280‘s website.

After more than 15 years of fighting, our client—the Town of Barnstable—was able to declare victory in its battle to prevent the Cape Wind energy project from being located in Nantucket Sound.  On December 1, 2017, Cape Wind announced that it would abandon the project and surrender its lease from the United States.  The decision was unexpected, but not a surprise.  Following a string of litigation defeats and the cancellation of its power purchase agreements and other contracts, the project was not expected to go forward.  Kaplan Kirsch & Rockwell represented the Town in litigation challenging the FAA’s determinations that the 130 turbines would not pose a hazard to air navigation, including a decision from the D.C. Circuit in 2011 reversing the FAA’s decision.  Our attorneys also represented the Town in its challenge to the Department of the Interior award of Cape Wind’s lease under NEPA and other environmental laws, including ongoing litigation at the Interior Board of Land Appeals.  Now that the Cape Wind project has been renounced, the Town and other environmental groups on Cape Cod are turning their attention to securing permanent protection for the national treasure that is Nantucket Sound.

ACHP Streamlining Section 106 Proposal

On November 17, 2017, the Advisory Council on Historic Preservation (ACHP) issued a two-part proposal to streamline historic preservation review for projects within railroad rights-of-way under Section 106 of the National Historic Preservation Act (Section 106). The proposal responds, in part, to the U.S. Department of Transportation’s request that the ACHP establish an exemption for routine undertakings that typically have no—or only minor—adverse effects, as directed by the Fixing America’s Surface Transportation (FAST) Act.

First, the ACHP proposes to exempt certain routine transportation-related activities that occur within railroad rights-of-way from all Section 106 review, provided the lead federal agency determines the undertaking will not potentially affect non-rail historic properties. Exempted activities are enumerated in Appendix A to the proposal, and include:

• Replacement of rail (but not a change in gauge)
• Replacement of subgrade, ballast or ballast materials
• In-kind repair or replacement of structural or non-structural components of bridges, tunnels and other structures
• ADA upgrades to passenger stations that do not remove or alter character-defining historic elements
• State of good repair work
• Signal replacement; and
• Maintenance of at-grade crossings

Second, the ACHP also proposes an optional program that would allow project sponsors to proactively identify and evaluate “important historic rail properties,” independent of any project requiring federal funding or approval. Thereafter, an undertaking in a rail right-of-way would be entitled to streamlined Section 106 review, or, potentially, be exempt from review based on the particular facts involved and whether an “important historic rail property” were affected. Advance identification would also allow project planners to avoid impacts to “important historic rail properties.” The Federal Railroad Administration, Federal Transit Administration, and other U.S. DOT agencies will publish additional guidelines on developing such a list after ACHP’s finalizes its proposal.

Comments on the ACHP’s proposal are due no later than December 8, 2017, and should be submitted electronically to both RailROW@achp.gov and FRA.106Exemption@dot.gov. Please let us know if you have any questions about the proposed program comment or if we may assist you in commenting.

The Colorado Department of Transportation’s (CDOT) Bridge Enterprise (BE) and the High Performance Transportation Enterprise (HPTE) announced the approval of the much anticipated Project Agreement for the Central 70 Project with selected developer Kiewit Meridiam Partners.  The Central 70 Project involves the reconstruction of a 10-mile stretch of I-70 east of downtown Denver, the addition of one new Express Lane in each direction, the removal of the aging 53-year old viaduct, the lowering of the interstate between Brighton and Colorado Boulevards, and placement of a 4-acre cover to be a public park and school playground over a portion of the lowered interstate.

The milestone of contract approval has resulted in commercial close for the project.  It also signals the start of the next stage of this project which will result in financial close.  Construction is then slated to begin in 2018 and take approximately four years to complete.

The Central 70 Project was procured using an innovative design-build-finance-operate maintain (DBFOM) public-private partnership (P3) model.  Our firm represents CDOT, HPTE, and the BE both as P3 procurement co-counsel and as environmental/litigation counsel.  As part of this project, our attorneys have structured the procurement documents and the associated construction project documents required for completion of the largest infrastructure development project in CDOT’s history.  In addition, we have addressed judicial and administrative complaints under the National Environmental Policy Act, Section 4(f) of the Department of Transportation Act, Transportation Conformity under the Clean Air Act, and Title VI of the Civil Rights Act.

The Firm’s client, D4 Urban, has acquired from the Regional Transportation District (RTD) approximately 6.5 acres at West Alameda and South Santa Fe Boulevard and sold 4.7 acres of the site to a Volkswagen dealership in the Denver area. D4 Urban is the acting development manager on behalf of Emich Volkswagen under a design-build contract and is responsible for planning approvals and project procurement and delivery.

For more details regarding this transaction, see BusinessDen’s recent article.

The Firm has been hired by Maryland Attorney General Brian E. Frosh to represent the state as Maryland prepares to sue the Federal Aviation Administration.  The suit will be over lower flight paths causing more noise for the surrounding communities.  For more details, see the coverage from The Baltimore Sun and CBS Baltimore or the press release from the Office of the Attorney General.