Regulations for the governance of commercial whitewater outfitters in West Virginia have been established by the State of West Virginia and by its department of commerce and division of national resources. They have been reproduced here for reference.
1.1. Scope and Purpose. — The purpose of this rule is to provide for the regulation of commercial whitewater rafting, outfitting, and related activities to assure safe operations and protect the environment.
1.2. Authority. — W. Va. Code §20-2-23a.
1.3. Filing Date. — March 27, 2008.
1.4. Effective Date. — March 27, 2008.
2.1. “Commercial Kayak Clinic” means an instructional class for the purpose of teaching the Eskimo roll, paddling, reading whitewater, navigating, portaging and scouting rapids.
2.2. “Commercial Whitewater Guide” means any person who is an owner, agent or employee of a commercial whitewater outfitter, and who is qualified and authorized to provide services for whitewater expeditions in the state in accordance with W. Va. Code §20-2-23 and 23a and this rule.
2.3. “Commercial whitewater outfitter” means any person, partnership, corporation, or other organization, or any combination thereof, duly authorized and operating from within or from without the State, which for monetary profit or gain, provides whitewater expeditions or rents whitewater craft or equipment for use in whitewater expeditions on any river, portions of rivers, or waters of the State.
2.4. “Division” means the Division of Natural Resources.
2.5. “Evaluation Trip” means a trip provided by a West Virginia commercial whitewater outfitter, licensed in this state, for the purpose of determining that the guide trainee meets the criteria outlined in section 12. of this rule.
2.6. “Familiarization Trip” means a trip provided by a licensed West Virginia commercial whitewater outfitter for the purpose of familiarizing a guide trainee on the river or sections of river to be guided.
2.7. “Guide Trainee” means a person who is attempting to become qualified as a commercial whitewater guide in accordance with the provisions of this rule.
2.8. “Inflatable Kayak” means an inflatable craft rated to carry one (1) or two (2) passengers and meets the requirements outlined in section 10. of this rule.
2.9. “Kayak or C-1” is a hard shell boat that requires a spray skirt and is made of plastic, fiberglass or other hard material. This type of boat does not use rubberized material like that commonly used for rafts.
2.10. “Raft” means an inflatable craft rated to carry three (3) or more passengers and meets the requirements outlined in section 10. of this rule.
2.11. “Rent” means to provide for monetary profit or gain any equipment including watercraft, inner tubes or other vessels to be used in a whitewater expedition. This term also includes the offering for sale with a written or oral agreement or any other arrangement, to repurchase, at a reduced cost, the equipment at the completion of its use.
2.12. “Training Trip” means a trip provided by a commercial whitewater outfitter licensed in the state which offers to the guide trainee substantial opportunity to acquire the necessary skills required by subsection 12.1. of this rule.
2.13. “Underway” means that the watercraft is not at anchor, or secured to the shore, or aground.
2.14. “Watercraft” means a kayak or C-1, raft, inflatable kayak or any boat or watercraft in the licensee’s fleet used for commercial or non- commercial whitewater expeditions and which meet the requirements set forth in section 10. of this rule.
2.15. “Whitewater Expedition” means the act of floating, traveling or traversing, in any manner, in or on any description of watercraft or vessel, including ‘inner tubes’, by a commercial whitewater outfitter, any river or other waters of the state that contains any whitewater and/or rapids or turbulent water.
2.16. “Whitewater Zone” means all rivers, portions of rivers or other waters of the state as identified in subsections 3.1. and 9.12. of this rule.
3.1. The following rivers, portions of rivers, or waters of the State are designated as whitewater zones. For the purposes of conducting studies as required by W. Va. Code §20-2-23a, the New, Gauley, Cheat, Shenandoah and Tygart Valley Rivers are further divided into special “study zones”.
3.1.1. Cheat River from its confluence with Saltlick Creek to the confluence of Big Sandy Creek.
3.1.1.a. From its confluence with Saltlick Creek to the State Route 26 Bridge at Albright.
3.1.1.b. From the State Route 26 Bridge at Albright to the confluence of Big Sandy Creek.
3.1.2. Gauley River from the Summersville Lake Dam to the Railroad Bridge at Jodie.
3.1.2.a. From the Summersville Lake Dam to Mason’s Branch Road.
3.1.2.b. From Mason’s Branch Road to the Railroad Bridge at Jodie.
3.1.3. New River from its confluence with the Greenbrier River to its confluence with the Gauley River.
3.1.3.a. From its confluence with the Greenbrier River to the State Route 41 Bridge at Prince.
3.1.3.b. From the State Route 41 Bridge at Prince to the Railroad Trestle at Dunloup Creek.
3.1.3.c. From the Railroad Trestle at Dunloup Creek to the confluence of Manns Creek.
3.1.3.d. From the confluence of Manns Creek to Teays Landing.
3.1.3.e. From Teays Landing to the Hawks Nest State Park Dam.
3.1.3.f. From the Hawks Nest State Park Dam to its confluence with the Gauley River.
3.1.5. Tygart Valley River from the confluence of Mill Creek at Belington to the County Route 62 Bridge at Colfax.
3.1.5.a. From the confluence of Mill Creek at Belington to the covered bridge at Philippi.
3.1.5.b. From the covered bridge at Philippi to the Tygart Lake Dam.
3.1.5.c. From the Tygart Lake Dam to the County Route 62 Bridge at Colfax.
58-12-4. Commercial Whitewater Outfitters License.
4.1. A commercial whitewater outfitter shall obtain a license from the director prior to the commencement of operations on any waters of the State.
4.2. A commercial whitewater outfitter issued a license by the director shall comply with the terms and conditions of that license.
4.3. The director may issue new licenses valid for one or more designated whitewater zones upon a finding by him or her, and with the approval of the Whitewater Commission, that the licensees currently operating in the same whitewater zone or zones have not fully utilized the daily use limits set under the provisions of section 8 of this rule. The director shall file public notice of his or her intent to issue new licenses for a designated whitewater zone immediately upon such a finding.
4.4. Before any outfitting services are offered or rendered, each commercial whitewater outfitter shall execute a surety bond in the penal sum of one thousand dollars ($1,000) payable to the State of West Virginia and shall hold valid public liability insurance in the name of the licensee with minimum coverage of three hundred thousand dollars ($300,000) per occurrence for bodily injury and twenty-five thousand ($25,000) aggregate for property damage. The licensee shall submit proof of liability insurance coverage and the surety bond to the director not later than February 15th of each year. The issuing insurance company shall furnish immediate written notification of the cancellation of the policy and/or the surety bond to the director. The requirement of cancellation notification shall be printed on the bottom of every policy.
4.5. Annual license fees shall be paid by the licensee to the Division not later than February 15th.
4.6. An applicant for a commercial whitewater outfitter’s license for the ensuing year shall provide the director with the information specified on the Division’s application and any additional information that the director considers necessary for consideration of the application by March 15th. Upon review and consideration by the whitewater commission, a written reply stating whether or not the license will be granted shall be sent to the applicant by September 30th.
4.7. A licensee shall keep a current record or file containing the name, address, age, and residency of all persons who have utilized his or her services. This record shall be kept for a period of two (2) years and shall be made available to the director upon request.
4.8. Whitewater Guide-Trainee Information Sheet.
4.8.1. Individual guides are responsible for completing the Whitewater Guide-Trainee Information Sheet furnished by the division. Forms are to be provided to individual guides or guide-trainees by the licensee.
4.8.2. A licensee shall not employ a guide trainee for the purpose of guiding on a commercial whitewater expedition until the outfitter has received the guide trainee’s information sheet.
4.8.3. A West Virginia commercial whitewater guide is not required to supplement the guide trainee information sheet except to show qualifications for additional rivers or sections of rivers.
4.8.4. The licensee is responsible for keeping on file the original or a certified copy of the completed whitewater guide-trainee information sheet. These records shall be maintained by the licensee for two (2) years following the last date of employment. The licensee shall provide the guide or guide trainee with a certified copy of the trainee information sheet and shall forward a copy to the Division of Natural Resources, Law Enforcement Section, 324 Fourth Ave, South Charleston, WV 25303 upon request.
4.9. Whitewater Guide Trip Leader Information Sheet.
4.9.1. Individual guides shall complete the Whitewater Guide Trip Leader Information Sheet furnished by the division.
4.9.2. A licensee shall not employ a guide as a Trip Leader until the outfitter has received the guide’s Trip Leader Information Sheet.
4.9.3. A West Virginia commercial whitewater guide Trip Leader is not required to supplement the guide Trip Leader information sheet except to show qualifications for additional rivers or sections of rivers.
4.9.4. The licensee is responsible for keeping on file the original or a certified copy of the completed whitewater guide Trip Leader information sheet. These records shall be maintained by the licensee for two (2) years following the last date of employment. The licensee shall provide the guide Trip Leader with a certified copy of the guide Trip Leader information sheet and shall forward a copy to the Division of Natural Resources, Law Enforcement Section, 324 Fourth Ave, South Charleston, WV 25303 upon request.
4.10.1. Guides and guide-trainees are responsible for submitting the completed Whitewater Guide Trainee Information Sheet on the first day of employment with a licensee.
58-12-5. Special Whitewater Study and Improvement Fee.
5.1. In accordance with W. Va. Code §20-2-23a, there will be a special whitewater study and improvement fee paid by each licensee for each customer that is transported on a commercial whitewater trip in the study zones on the Cheat, Gauley, New, Shenandoah and Tygart Valley rivers.
5.2.1. The study and improvement fee is thirty-five cents ($.35) for each customer transported on a commercial whitewater trip in study zones on the Cheat, New, Shenandoah and Tygart Valley rivers.
5.2.2. The study and improvement fee is seventy cents ($.70) for each customer transported on a commercial whitewater trip in study zones on the Gauley River.
5.2.3. If a commercial whitewater trip exceeds one day in duration, the appropriate fee shall be collected for each day, or part of a day, of the trip.
5.3. The licensee shall pay these fees to the division by the fifteenth (15th) day of the month following the month in which the fee was assessed and deposit them in the whitewater study and improvement fund.
5.4. Gauley River Study and Improvement Fee.
5.4.1. For the purpose of improving and promoting the whitewater industry on the Gauley River, one-half of all study and improvement fees collected pursuant to subdivision 5.2.2. of this rule shall be used to stock the Gauley River with trout during the spring and fall seasons of each year to mitigate the loss of fishing opportunities resulting from the additional water volume on the Gauley River. The Whitewater Commission may hire a private contractor to administer the trout stocking program.
5.4.2. The Whitewater Commission shall review the amount of the study and improvement fee collected pursuant to subdivision 5.2.2. of this rule every four years to determine whether the fee is sufficient to assure adequate funding for the trout stocking program.
6.1. A licensee shall obtain prior written approval of the director to sell or transfer a commercial whitewater license.
6.2. A licensee shall obtain the express written approval of the director to sell or transfer any use allocation or other privilege conferred by a license.
6.3. The director may not withhold approval of a sale or transfer except for just cause.
7.1. The director shall establish, modify, or limit use allocations for all licensees operating within a designated whitewater zone in conformance with section 8 of this rule.
7.2. A licensee may sell all of his or her use allocation for a designated whitewater zone upon the review and approval of the director. A licensee may sell or transfer a portion of his or her use allocation for a designated whitewater zone to another licensee holding an allocation on those waters upon the review and approval of the director.
7.3. The director may not withhold approval of a sale or transfer except for just cause.
8.1.3. The sound recreational and ecological use of the State’s natural resources.
9.1. Towing rafts through water pools is permitted.
9.2. Motorized watercraft are permitted on the New River between Thurmond and Fayette Station when river flow equals or exceeds sixteen thousand five hundred (16,500) cubic feet per second at Thurmond.
9.3. The director may issue special use permits to licensees for the use of motorized watercraft to provide whitewater trips to senior citizens, disabled persons, and other persons who might not otherwise be able to participate in whitewater recreation. The director may also issue special use permits to licensees to conduct whitewater trips for the purpose of making documentary recordings or to provide emergency transport services.
9.4. Motorized watercraft shall not pass non- motorized trips unless signaled to do so by the trip leader of the non-motorized watercraft. The non- motorized watercraft shall make all reasonable efforts to facilitate passing of the motorized watercraft.
9.5. While underway, each passenger, trip guide, and trip leader shall wear a securely fastened vest-type personal flotation device as prescribed in subsection 10.1 of this rule. The licensee shall maintain all personal flotation devices in a good and serviceable condition.
9.6. Each commercial whitewater expedition shall have a minimum of one (1) trip guide for every ten (10) passengers or any portion thereof. There shall be a minimum of two guides on each whitewater expedition of more than six (6) watercraft.
9.7. There shall be no less than one (1) trip guide on a commercial whitewater expedition on rivers or sections of rivers unless otherwise designated in subsection 9.12. of this rule.
another West Virginia licensee’s whitewater expedition in order to fulfill the requirements of this subsection.
9.9. There shall be one commercial whitewater trip leader on each commercial whitewater trip.
9.10. A trip leader may count as a trip guide for the purpose of meeting the requirements of this subsection.
9.11. Each commercial kayak clinic shall have a minimum of one (1) trip guide for each six (6) customers or any portion thereof.
9.12.1.a.. From its confluence with Saltlick Creek to the State Route 26 Bridge at Albright there shall be a minimum of one (1) trip guide per trip.
9.12.1.b. From the State Route 26 Bridge at Albright to the confluence of Big Sandy Creek there shall be a minimum of two (2) trip guides per trip. When river flows equal or exceed two thousand two hundred (2,200) cubic feet per second there shall also be a trip guide in every watercraft.
9.12.2. New River. Between Mann’s Creek and Teays Landing there shall be a minimum of one (1) trip guide in each watercraft. No duckie expeditions are allowed between Mann’s Creek and Teays Landing.
9.12.3.a. From the Summersville Lake Dam to Mason’s Branch Road there shall be a minimum of two (2) trip guides per trip. At flows in excess of one thousand (1,000) cubic feet per second between the Summersville Lake Dam and Sweet’s Falls there shall be minimum of one (1) trip guide in each watercraft with the exception of a commercial kayak clinic.
9.12.3.b. From Mason’s Branch Road to the Railroad Bridge at Jodie there shall be a minimum of two (2) trip guides per trip.
9.12.4. New River from its confluence with the Greenbrier River to its confluence with the Gauley River.
9.12.4.a. From its confluence with the Greenbrier River to the confluence of Manns Creek there shall be a minimum of one (1) trip guide per trip.
9.12.4.b. From the confluence of Manns Creek to Teays Landing there shall be a minimum of one (1) trip guide in each watercraft except on a kayak clinic where the instructor and guests are in kayaks. Kayak clinics may be held by a commercial whitewater outfitter. Daily use is restricted to nine students per day per license and must have a ratio of one (1) trip guide per three (3) students. Kayak clinics are not permitted in this section of the New River on Saturdays between Memorial Day and Labor Day. There shall be a minimum of two (2) trip guides per trip on all other trips. Inflatable kayak expeditions or trips are not permitted in this section of the New River.
9.12.4.c. From Teays Landing to the Hawks Nest State Park Dam there shall be a minimum of one (1) trip guide per trip.
9.12.4.d. From the Hawks Nest State Park Dam to its confluence with the Gauley River there shall be a minimum of two (2) trip guides per trip.
9.12.4.e. From the confluence of the Greenbrier River and the New River to the top of Brooks Falls outfitters may rent inflatable kayaks and rafts that meet the requirements of section 10 of this rule: Provided, that the inflatable kayaks and the rafts are rented only for use in this section of the New River. Trip guides are not required to accompany these rental trips.
9.12.5. Shenandoah River from the Potomac Edison Power Station Dam at Millville to its confluence with the Potomac River. There shall be a minimum of one (1) trip guide per trip.
9.12.5.a. From the West Virginia border to Millville, outfitters may rent inner tubes, canoes, inflatable kayaks, kayaks, and rafts that meet the requirements of section 10 of this rule: Provided, that the inner tubes, canoes, inflatable kayaks, kayaks, and rafts are rented only for use in this section of the Shenandoah River. Trip guides are not required to accompany these rental trips.
9.12.6. Tygart Valley River from the confluence of Mill Creek at Belington to the County Route 62 Bridge at Colfax there shall be a minimum of two (2) trip guides per trip.
9.13. No person shall carry a firearm in watercraft during a whitewater expedition.
9.14. No person may use alcohol while the watercraft is underway during a whitewater expedition.
10.1. The licensee shall provide a Type V vest-type personal flotation device approved by the United States Coast Guard for commercial whitewater use to each passenger to be transported in watercraft by the licensee and shall be securely fastened and worn by the passengers while underway. Trip leaders and trip guides shall wear either Type III or Type V vests approved by the United States Coast Guard for commercial whitewater use and shall securely fasten them while underway. The use of Type III or Type V personal flotation devices by passengers is acceptable for kayak or canoe instruction.
10.2. The minimum watercraft size that may be used on any river is an eight (8) foot, two (2) compartmentalized watercraft (except inner tubes) unless otherwise specified in subsection 10.4 of this rule. The size of an inflatable watercraft shall be measured from the outside tube surface in the bow to the outside tube surface in the stern when fully inflated, plus or minus six (6) inches.
10.3.1. Gauley River. At flows in excess of one thousand (1,000) cubic feet per second between Summersville Dam and Sweet’s Falls, the minimum watercraft size shall be a twelve (12) foot, four (4) compartmentalized watercraft.
10.4.1. At least one (1) first aid kit per trip.
10.4.2. At the beginning of each trip, each trip leader or trip guide shall possess at least one (1) throw line or throw bag not less than forty (40) feet in length. One (1) professional quality rescue rope which is seventy (70) feet in length shall be carried on each whitewater expedition. The seventy (70) foot rescue rope may be counted as one of the required throw lines or throw bag.
10.5. All watercraft used in a licensee’s commercial whitewater operations shall be marked with the name, initials, or an easily recognizable logo of the licensee and the markings shall be plainly visible and legible from a distance of one hundred (100) feet.
11.1. Injury Report. If a customer reports an injury to a licensee or the licensee is aware of an injury or accident that requires medical services at an established medical facility and the injury or accident occurs during the performance of a licensee’s services from the put-in to the take-out, the licensee shall file an accident report with the director. The licensee shall use the injury report form prescribed by the Whitewater Commission. The form shall include the name, address, and age of the person injured, the nature of the injury, the time and place of the accident and the circumstances of the accident. The licensee shall file the report with the director within fifteen (15) days after the accident.
11.2. Property Damage Report. If an accident occurs during the performance of a licensee’s services which results in non-vehicular property damage in excess of five hundred dollars ($500), the licensee shall file a report with the director within fifteen (15) days after the accident. This property damage report shall include the name of the owner of the property; an estimate of the amount of the loss; the time and location of the event causing the damage; and a description of the accident.
58-12-12. Trip Guides and Trip Leaders.
12.1.4. Have completed a minimum of forty (40) commercial whitewater expeditions in a raft on a river in which a commercial whitewater guide is required in every raft, two (2) familiarization trips and one (1) evaluation trip in order to be qualified on the Gauley River between Summersville Lake and Mason’s Branch. The second familiarization trip may count as the evaluation trip.
12.1.9. Be familiar with floating and swimming in whitewater conditions in a personal flotation device.
12.1.10. For training and evaluation purposes, a guide trainee may act as a trip guide on a commercial whitewater expedition as long as the guide trainee is directly and actively supervised by a commercial whitewater trip guide who is present in the watercraft.
12.1.11. The licensee shall document all familiarization trips and evaluation trips on the guide trainee’s Whitewater Guide Information Sheet and maintained with the guide’s records.
12.1.12. A commercial whitewater trip guide qualified on any river or portion of a river prior to the effective date of this rule remains qualified on those rivers or portions of rivers as long as he or she meets the requirements set forth in subdivision 12.1.7 of this rule.
12.2.3. Be knowledgeable and capable of giving a suitable orientation talk to and supervise the passengers on the commercial whitewater expedition on subjects which may include, but not be limited to, trip safety, trip description, personal flotation devices, how to stay in the boat and how to paddle and throw lines.
12.2.4. A commercial whitewater trip leader qualified on any river or portion of a river prior to the effective date of this rule remains qualified on those rivers or portions of rivers as long as he or she meets the requirements set forth in subdivision 12.1.7 of this rule.
12.3. Trip Guides or commercial whitewater operations on the Shenandoah River, a licensee may employ the services of guides who are at least sixteen (16) years old and otherwise meet the qualifications set forth in subsection 12.1. of this rule.
12.4. Licensees may request variations from the trip leader or trip guide qualifications set forth in this section. Requests for variations must be made in writing to the director and the request shall substantiate that the variation does not reduce the intent of the qualifications set forth in this rule.
12.5. Documents relating to the requirements of this section shall be kept at the licensee’s base camp for inspection by the director or his or her representative.
13.1. Penalty for Violation. Any person who violates any provision of W. Va. Code §§20-2-23a and 20-2-23d or this rule is subject to the penalties prescribed in W. Va. Code §20-2-23d.
13.2. Modification, Suspension or Revocation of License. If the director determines that a pattern of violations of any requirement of this rule or any term or condition of a license exists or has existed as a result of the licensee’s lack of reasonable care or diligence, or that the violations are willfully caused by the licensee, the director shall immediately issue an order directing the licensee to show cause why the license should not be modified, suspended, or revoked and giving the licensee thirty (30) days in which to request a hearing subject to the provisions of W. Va. Code §29A-5-1 et. seq. Within sixty (60) days following the hearing, the director shall issue and furnish to the licensee a written decision, and the reasons for the decision, concerning the modification, suspension, or revocation of his or her license. Upon a licensee’s failure to show cause why the license should not be modified, suspended, or revoked, the director may modify, suspend, or revoke the license, forfeit the licensee’s bond posted under W. Va. Code §20-2- 23d, and give notice to the Attorney General of the State to seek collection of the forfeiture without delay.
13.3. License modification, suspension, and revocation procedures are governed by the provisions of W. Va. Code §29A-5-1 et. seq. unless otherwise specified in this rule.
14.1. The terms and conditions of a license are appealable under the provisions of W. Va. Code §29A-5-1 et. seq.
Information courtesy W.Va. Division of Natural Resources, 2012.


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6.30.020 Inspection by director of public works – Notice to abate.
6.30.040 Refusal or failure to abate – Penalties.
It shall be unlawful for any owner, lessee, occupant, agent or other person having the care or charge of any lot, lots or parcel of land within the city limits of the city of Edmonds to suffer or permit any noxious weeds, thistles or nettles to grow thereon or on any street, alley or highway bordering on such property, to the center thereof. [Ord. 285 § 1, 1916].
It shall be the duty of the director of public works to inspect all lots and parcels of land and the streets, alleys and highways of the city of Edmonds, and when said noxious weeds, thistles and the like are found, either on private property or on the bordering streets, alleys or highways, the director of public works shall cause notice to be given to the owner, lessee, occupant, agent or other person having care, custody and/or control of such property, or abutting property, to destroy the same; and specifying a time for such person to do so. [Ord. 850, 1960; Ord. 285 § 2, 1916].
Notices shall be in writing and be served by the police upon the owner, lessee, occupant, agent or other persons in charge of such property on which noxious weeds, thistles or nettles are found, in person or by leaving the same with a person of suitable age and discretion residing at the owner’s usual place of abode. If the person is a nonresident, the police shall mail a copy of the notice to his last known address, or if his address be unknown, by posting a copy of the notice on the property. [Ord. 2178 § 1, 1980; Ord. 285 § 4, 1916].
If the owner, lessee, occupant, agent or other person in charge of property on which noxious weeds, thistles or nettles exist fails or refuses to destroy the same within the time set forth in the notice, said person shall be subject to the penalties and remedies for public nuisances set forth in Chapter 6.20 ECC. [Ord. 3720 § 5, 2008].
Repealed by Ord. 3720. [Ord. 850, 1960; Ord. 285 § 5, 1916].

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NEW YORK STATE DEPARTMENT OF ECONOMIC DEVELOPMENT, ALSO KNOWN AS EMPIRE STATE DEVELOPMENT, HOWARD ZEMSKY, COMMISSIONER, NEW YORK STATE DEPARTMENT OF ECONOMIC DEVELOPMENT AND CEO OF EMPIRE STATE DEVELOPMENT, DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVELOPMENT OF NEW YORK STATE DEPARTMENT OF ECONOMIC DEVELOPMENT, AND LOURDES ZAPATA, DIRECTOR, DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVELOPMENT OF NEW YORK STATE DEPARTMENT OF ECONOMIC DEVELOPMENT, RESPONDENTS.
BARCLAY DAMON LLP, SYRACUSE (KEVIN G. ROE OF COUNSEL), FOR PETITIONER.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF COUNSEL), FOR RESPONDENTS.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by an order of the Supreme Court, Onondaga County [James P. Murphy, J.], entered October 18, 2017) to review a determination of respondent Division of Minority and Women's Business Development of New York State Department of Economic Development. The determination denied petitioner's application for recertification as a women-owned business enterprise.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the amended petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul a determination of respondent Division of Minority and Women's Business Development of the New York State Department of Economic Development (Division), which denied its application for recertification as a women-owned business enterprise ([WBE]; see Executive Law § 310 ; 5 NYCRR 144.2). In 1976, John Smith (John) and Josephine Smith (Josephine; collectively, Smiths) founded petitioner, a business specializing in the sale, service, and rental of light construction equipment and supplies. Following John's retirement in 1994, Josephine was elected president. The Division first certified petitioner as a WBE in 1995, and petitioner was granted recertification periodically thereafter. After Josephine's death in October 2013, her shares were distributed to each of the Smiths' three children-Joanne Reed (Joanne), Jeffrey Smith (Jeffrey), and Jay Smith (Jay)-each of whom was involved and held shares in the business. Jeffrey later transferred one of his shares to his wife, Mary Smith, who was also involved and held additional shares in the business, in order to maintain petitioner's eligibility for certification as a WBE (see Executive Law § 310  [a]). In November 2013, the owners reconfigured petitioner's corporate structure by amending the bylaws to create a new position of Chief Executive Officer as the top executive office and appointing Joanne to that position.
Petitioner submitted an application for recertification in May 2014, but the Division denied it on grounds including that petitioner did not meet the eligibility criterion related to women's control of the business because petitioner failed to demonstrate that the women owners made decisions pertaining to the operations of the business enterprise (see 5 NYCRR 144.2 [b] ). Petitioner filed an administrative appeal and thereafter declined to proceed with a hearing and instead requested that the matter be decided as a written appeal. After receiving written submissions, the Administrative Law Judge recommended that the determination be affirmed on the aforementioned ground, and the Executive Director of the Division accepted that recommendation.
We note at the outset that Supreme Court erred in transferring the proceeding to this Court inasmuch as it does not involve a substantial evidence issue (see CPLR 7803 ; 7804 [g]). "A substantial evidence issue arises only where a quasi-judicial hearing has been held and evidence [has been] taken pursuant to law'... and[, here, ] no hearing was held" (Matter of Scherz v New York State Dept. of Health, 93 A.D.3d 1302, 1303 [4th Dept 2012]; see Matter of Occupational Safety & Envtl. Assoc., Inc. v New York State Dept. of Economic Dev., 161 A.D.3d 1582, 1582 [4th Dept 2018]). We nevertheless address the merits of petitioner's contentions in the interest of judicial economy (see Occupational Safety & Envtl. Assoc., Inc., 161 A.D.3d at 1582).
" In reviewing an administrative agency determination, [courts] must ascertain whether there is a rational basis for the action in question or whether it is arbitrary and capricious'" (Matter of Peckham v Calogero, 12 N.Y.3d 424, 431 ; see Occupational Safety & Envtl. Assoc., Inc., 161 A.D.3d at 1583; see generally CPLR 7803 ). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (Peckham, 12 N.Y.3d at 431). "If the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency" (id.). "Further, courts must defer to an administrative agency's rational interpretation of its own regulations in its area of expertise" (id.), and thus an agency's interpretation of its own regulations will not be disturbed where it" is not irrational or unreasonable'" (Matter of Elderwood Health Care Ctr. at Linwood v Novello, 59 A.D.3d 932, 933 [4th Dept 2009]).
We reject petitioner's contention that the Division's interpretation of the regulations promulgated pursuant to the applicable statute is irrational or unreasonable. The statute requires the business applying for certification as a WBE to establish that its "women ownership has and exercises the authority to control independently the day-to-day business decisions of the enterprise" (Executive Law § 310  [c]), and the regulation at issue here provides that a business seeking to establish the requisite control of the business by women must establish that its women owners make "[d]ecisions pertaining to the operations of the business enterprise" (5 NYCRR 144.2 [b] ). In view of the legislative purpose to facilitate additional business opportunities for women-owned enterprises (see e.g. Executive Law § 311  [a]), and the requirement that women exercise independent control over the day-to-day business decisions of the enterprise (see § 310  [c]), we conclude that it is not irrational or unreasonable for the Division to require that a woman owner must exercise independent operational control over the core functions of the business in order to establish the requisite control for WBE certification (see Matter of Skyline Specialty v Gargano, 294 A.D.2d 742, 742 [3d Dept 2002]). In so doing, the Division ensures that a woman owner exercises bona fide independent control over the operations of the business enterprise rather than mere nominal control in order to reap the benefits of certification (see generally Matter of Era Steel Constr. Corp. v Egan, 145 A.D.2d 795, 797-799 [3d Dept 1988]). Contrary to petitioner's contention, the Division's interpretation of the regulations is not a departure from the factor-based evaluation set forth under the "control" criterion of the regulations (5 NYCRR 144.2 [b]  [i]-[iii]); rather, it informs that evaluation by identifying the "operations of the business enterprise" for which a woman owner must make decisions in order to demonstrate her independent control of the business (5 NYCRR 144.2 [b] ; see generally Matter of C.W. Brown, Inc. v Canton, 216 A.D.2d 841, 842-843 [3d Dept 1995]; Matter of Northeastern Stud Welding Corp. v Webster, 211 A.D.2d 889, 890-891 [3d Dept 1995]).
Contrary to petitioner's further contention, we conclude that the Division's determination to deny the application for recertification is supported by a rational basis and is not arbitrary and capricious. In particular, it was rational for the Division to determine that decisions pertaining to the operations of the business enterprise were not made by the women claiming ownership of the business (see 5 NYCRR 144.2 [b] ; Occupational Safety & Envtl. Assoc., Inc., 161 A.D.3d at 1583). The record establishes that petitioner's core operations consist of the sale, service, and rental of light construction equipment and supplies, and that Jeffrey is the sales manager who supervises salespersons and monitors the performance of petitioner's various retail locations while Jay meets with manufacturers' sales representatives and oversees the purchase of supplies and inventory. By contrast, the record establishes that Joanne is primarily responsible for human resource issues, financial management, accounts receivable, and legal matters. Based upon that evidence, the Division rationally concluded that Jeffrey and Jay, rather than Joanne, exercised operational control over the core functions of the business (see C.W. Brown, Inc., 216 A.D.2d at 843). Although a woman owner who otherwise exercises independent operational control over the core functions of the business does not relinquish eligibility for certification as a WBE by merely delegating responsibilities (see generally Executive Law § 310  [c]; 5 NYCRR 144.2 [b] ), the record here supports the determination that petitioner is operated as a family-owned business rather than a women-owned business inasmuch as each of the family member owners shared operational control and responsibility for managerial decisions (see Occupational Safety & Envtl. Assoc., Inc., 161 A.D.3d at 1583; Northeastern Stud Welding Corp., 211 A.D.2d at 891).


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The plaintiff purchased a $23 million rent-controlled mobile home park in the City of Carson, $18 million of which was financed through a loan. When the plaintiff acquired the property, the City Rent Review Board’s application review guidelines required the Board to consider certain expenses submitted by property owners against the property’s income to determine what rents would give the owner a fair return on their investment. At the time the plaintiff purchased the property, these expenses included debt service, which are interest payments made on a loan to purchase the rent-controlled property. Subsequently, the City revised its guidelines for considering rent increases and the City’s new rent control formula no longer factored in debt service expenses.
The Second District Court of Appeal upheld the City of Los Angeles’s General Plan amendment, which changed the land use designation of a proposed project site for a mixed-use development against challenges the decision was prohibited by the City Charter. Westsiders Opposed v. City of Los Angeles, 27 Cal. App. 5th 1079 (2018).
The developers filed a permit application with the City for the project, which consisted of the demolition of an automobile dealership and construction of an 800,000 square foot mixed-use project on a five-acre site in West Los Angeles that would include 516 residential units, 99,000 square feet of retail floor area, and 200,000 square feet of office floor area. Project approval required a General Plan amendment, a zoning amendment, multiple conditional use permits, a development agreement, and an environmental impact report. The City Council adopted ordinances approving the General Plan amendment and the project.
Plaintiffs challenged the approvals, alleging 1) the City Charter bars amending the General Plan for a single project site or single parcel, 2) the Charter bars the City from allowing a member of the public to initiate a General Plan amendment, and 3) the City failed to make the required findings.
The court of appeal held that the plaintiff’s challenge to the City of Rohnert Park’s reapproval of a Wal-Mart grocery store was barred by the doctrine of res judicata because a prior proceeding had raised the same issues. Atwell v. City of Rohnert Park (Wal-Mart Stores, Inc.), 27 Cal. App. 5th 692 (2018).
While the plaintiffs in the 2010 proceeding alleged that the project conflicted with Policy LU-7 in their petition, the plaintiffs did not pursue the claim during the proceeding. The trial court ultimately granted the petition on the CEQA claims and ordered that the resolutions approving the Project be vacated, and that the Project be remanded for additional environmental review with respect to traffic and noise impacts.
The City prepared a revised EIR; however, the EIR did not alter the original EIR’s analysis of the project’s consistency with the General Plan. Following the City’s reapproval of the project in 2015, the plaintiffs filed this current proceeding challenging the project’s consistency with Policy LU-7. The trial court denied the petition finding that the petition was barred by the 2010 proceeding under the doctrine of res judicata.
Supreme Court To Decide If CEQA Review Is Required For Well Permits.
The Supreme Court of California has granted review of two cases to resolve a split among courts of appeal over whether the issuance of well permits pursuant to state standards is subject to CEQA. California Water Impact Network v. County of San Luis Obispo and Protecting Our Water & Environmental Resources v. Stanislaus County.
At the forefront of these cases is whether the standards issued by the Department of Water Resources for well construction give local agencies any discretion when issuing well permits. Water is a critical resource in the state and with enactment of the Sustainable Groundwater Management Act in 2014, groundwater, particularly its sustainable withdrawal and quality, are issues receiving more attention. Consequently, the practice of ministerial approval of well construction permits by local agencies without discretionary environmental review have come under increasing scrutiny.
In both California Water Impact Network and Protecting Our Water & Environmental Resources, plaintiffs alleged that the counties’ practice of treating approval of well construction permits as a ministerial action results in hundreds of permits being issued each year without CEQA review. The plaintiffs assert that this practice, and the counties’ respective ordinances, violate CEQA because the state standards are not entirely objective, rather, they give the counties discretion to consider local environmental factors when issuing a permit. It is against this backdrop that the Court will consider both cases. The Court’s decision will likely affect how well construction permits are reviewed and issued by local agencies throughout the state.
A federal court has prohibited the U.S. Department of the Interior from approving any plans or permits for hydraulic fracturing off the California coast until it complies with the Coastal Zone Management Act and the Endangered Species Act. Environmental Defense Center v. Bureau of Ocean Energy Management, No. 16-cv-8418, 2018 WL 5919096 (C.D. Cal. Nov. 9, 2018). The court determined that two bureaus of the Department had violated the Coastal Zone Management Act by failing to prepare a determination as to whether the proposed fracking was consistent with California’s coastal management program, and the Endangered Species Act by failing to consult adequately with the Fish and Wildlife Service before issuing the final Environmental Assessment. Our full Update on the case, by Laura Godfrey Zagar and Jacob E. Aronson, is available here.
The California Natural Resources Agency has adopted new CEQA Guidelines that will leave behind level of service in favor of vehicle miles traveled.
Following years of development and public comment, the Office of Planning and Research (OPR) and the Natural Resources Agency have issued new CEQA Guidelines for analyzing transportation impacts. These new regulations represent a significant shift in analyzing transportation impacts under CEQA. By July 1, 2020, all CEQA lead agencies must analyze a project’s transportation impacts using vehicle miles traveled (VMT). VMT measures the per capita number of car trips generated by a project and distances cars will travel to and from a project, rather than congestion levels at intersections (level of service or “LOS,” graded on a scale of A – F). California’s largest cities have already adopted VMT standards and abandoned LOS, but many other jurisdictions will continue to require LOS analysis — not for CEQA purposes, but because their general plans or other policies require LOS analysis.
In this update, we highlight key aspects of the VMT guidelines and how projects could be impacted by this important change in conducting transportation impacts analysis.
In 2013, the California legislature enacted SB 743, which required, among other things, that OPR adopt new guidelines for assessing transportation impacts and that when enacted, traffic congestion would no longer be considered in assessing a significant impact under CEQA. The purpose was to better align transportation impacts analysis under CEQA with the state’s goals of reducing greenhouse gas emissions and traffic-related air pollution and promoting multimodal transportation networks and a diversity of land uses. Under the existing framework of congestion-based analysis using LOS, infill and transit-oriented development is often discouraged because such projects are in areas of existing traffic congestion. As policymakers and legislators have recognized, congestion-based analysis does not necessarily improve the time spent commuting and is often at odds with state goals of reducing vehicle usage and promoting public transit. Indeed, a frequent solution to reducing level of service at intersections is to increase roadway capacity, which studies have found can actually lead to an increase in system-wide congestion and an increase in travel time. It is also now better understood that LOS does not accurately reflect vehicle travel as it only focuses on individual local intersections and roadway segments and not on the entire vehicle trip.
Where a petitioner in a CEQA case has elected to prepare the administrative record but unreasonably delays such preparation, the defendant agency may prepare the record itself and be awarded costs for doing so. LandWatch San Luis Obispo Co. v. Cambria Comm. Serv. Dist., 25 Cal. App. 5th 638 (2018).
LandWatch, a nonprofit organization, filed a petition for writ of mandate alleging that the Cambria Community Services District failed to comply with CEQA when it approved an emergency water supply project. LandWatch elected to prepare the administrative record, subject to the District’s certification of its accuracy.
LandWatch did not present a draft administrative record index until ten months after filing its petition. There were disagreements over the scope of the index, and the District quickly prepared a revised version of the record. LandWatch then further delayed the production of supplemental documents that it had argued were necessary. With trial nearing, the District prepared the supplemental index for LandWatch. The trial court noted that these delays in litigation put the District in financial distress because the county would not release $4.3 million in grant funds for the project while litigation was pending.
Ultimately, the District prevailed in the CEQA lawsuit and was awarded costs for preparing the record and appendix. LandWatch appealed.
The court held that the District properly took over preparation of the record and appendix after unreasonable delay on LandWatch’s part. LandWatch had the right to prepare the record, but within the time limit specified by CEQA, which is 60 days from the date of the petitioner gives notice it has elected to prepare it. Because LandWatch did not present the documents to the District for certification until far beyond the time limit, the court found that LandWatch had unreasonably delayed, and thereby forfeited, its right to prepare the record.
As of January 1, State law offers a new density bonus to qualifying student housing developments. The legislation (Senate Bill 1227) is one of several bills the Legislature has passed over the last two years to address California’s unprecedented shortage of affordable housing.
SB 1227 amends the Density Bonus Law by adding a bonus for eligible student housing developments in which at least 20 percent of units, or rental beds, are restricted to lower-income students for 55 years. For purposes of calculating a student housing density bonus, the legislation provides that the term “unit” is equivalent to one rental bed and its pro rata share of associated common area facilities.
All student housing units must be used exclusively for students enrolled full time at an accredited institution of higher education. The developer must enter into an operating agreement or master lease with one or more institutions to occupy all the student housing units.
Qualifying “lower-income students” must have a verified household income and asset level that does not exceed the level for “Cal Grant A” or “Cal Grant B” award recipients.
Rent in the units restricted to lower-income students may not exceed 30 percent of 65 percent of the area median income for a single-room occupancy unit type.
The development must provide a priority for its affordable units for lower-income students experiencing homelessness.
Cities and counties are required to grant qualifying projects a “density bonus” of 35 percent of the student housing units — in other words, a density increase of 35 percent over the otherwise maximum allowable gross residential density. These projects also can become eligible for the several other benefits already available under the Density Bonus Law, including incentives or concessions, waivers or reductions of development standards, and limitations on parking requirements.
A court of appeal has overturned a city’s mitigated negative declaration for a small mixed-use development in a historic overlay district, holding that aesthetic and traffic issues require the preparation of an environmental impact report. Protect Niles v. City of Fremont, 25 Cal. App. 5th 1129 (2018).
The proposed project, comprising 98 housing units and 3,500 square feet of commercial uses, was to be located in the Niles Historic Overlay District within the City of Fremont. The city approved a mitigated negative declaration for the project, finding that with mitigation incorporated, the project would cause no significant environmental impacts necessitating an EIR.
Residents sued, alleging that an environmental impact report was required because substantial evidence supported a fair argument that the project would cause significant impacts: due to 1) aesthetic incompatibility with the historic district; and 2) traffic impacts that were not acknowledged in the expert traffic report prepared for the city’s analysis. The court of appeal upheld both challenges and required that an EIR be prepared.
The court first held that a project’s visual impact on a surrounding officially-designated historical district is an appropriate topic for aesthetic review under CEQA, and that such an aesthetic analysis does not undermine the separate scheme for CEQA review of environmental impacts on historical resources. Next, recognizing that aesthetic judgments are inherently subjective, the court observed that objections raised by HARB members and others “were not solely based on vague notions of beauty or personal preference, but were grounded in inconsistencies with the prevailing building heights and architectural styles of the Niles HOD.” The court found that these personal observations constituted substantial evidence that the project would cause a significant aesthetic impact in the context of the historic district.
Traffic. The court next concluded that the city’s expert traffic report could not prevail over individuals’ observations of existing traffic conditions and predictions of hazards. The traffic report concluded that a new left-turn pocket in front of the project, while recommended, was not necessary, based in part on the posted speed limit. Commenters stated, however, that the posted speed limit was often ignored, and that without a left-turn pocket, the combination of high speeds, queued drivers waiting to turn left into the project, and a blind curve would result in dangerous conditions. The court identified these comments as substantial evidence supporting a fair argument that the project would create a traffic safety hazard.
The Protect Niles decision highlights the importance courts can attach to comments by the public – on both non-technical and technical issues – where an agency proposes to rely on a negative declaration rather than an EIR. Because CEQA is designed to favor EIRs over negative declarations, plausible fact-based comments (as opposed to generalized complaints) can, depending on the circumstances, prevail over both expert reports and agency significance thresholds, leading to the need for an EIR.

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Before BRISCOE, PORFILIO, Circuit Judges, and MARTEN, District Judge(2).
Plaintiff H.C. Massey (Massey) appeals the district court's order of summary judgment in favor of defendant the Board of Trustees of the Ogden Area Community Action Committee, Inc. (Board). We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.
Massey was executive director of Ogden Area Community Action Committee, Inc. (OACAA), a nonprofit corporation established "to stimulate a better focusing of all available federal, state and local resources to aid low income individuals" in Ogden, Utah, and the surrounding area. Aplt. Br. at 4-5. The Board claimed it terminated Massey's employment for "just cause." Id. at 94. Massey sued the Board and several of the Board members who voted to uphold his termination, alleging he was wrongfully terminated without due process in violation of 42 U.S.C. § 1983. All defendants moved for summary judgment, arguing they could not be found in violation of § 1983 because they were not state actors. The district court agreed and granted summary judgment in favor of the defendants. Massey appeals this decision only as to the Board.
We review the district court's grant of summary judgment de novo, applying the same legal standard as the district court. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). "Summary judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Id. (citing Fed. R. Civ. P. 56(c)). "When applying this standard, we review the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Id.
Section 1983 "creates a cause of action against individuals who violate federal law while acting 'under color of state law.'" David v. City & County of Denver, 101 F.3d 1344, 1353 (10th Cir. 1996); see also 42 U.S.C. § 1983. "[T]he only proper defendants in a Section 1983 claim are those who represent [the state] in some capacity, whether they act in accordance with their authority or misuse it." Gallagher v. "Neil Young Freedom Concert", 49 F.3d 1442, 1447 (10th Cir. 1995) (internal quotation omitted).
Massey alleges the Board was a state actor engaged in state action. His theory is that Utah state officials influenced the Board to terminate him. More specifically, he contends that Anne Kagie, Director of the Community Services Office of the Utah State Department of Community and Economic Development, orchestrated his termination.
Whether an action was taken "under color of state law" or whether it was a "state action" are two separate areas of inquiry. See Pino v. Higgs, 75 F.3d 1461, 1464 (10th Cir. 1996). However, since "state action necessarily constitutes action under color of state law," id., the Board can be held liable if it was a state actor engaged in state action. "Application of the state action doctrine has been characterized as one of the more slippery and troublesome areas of civil rights litigation." Gallagher, 49 F.3d at 1447. The Supreme Court has taken a "flexible" approach, see id., applying four different tests, referred to as the nexus test, the symbiotic relationship test, the joint action test, and the public functions test, see Anaya v. Crossroads Managed-Care Sys., Inc., 195 F.3d 584, 595 (10th Cir. 1999). Each test requires very fact-specific inquiries. See Gallagher, 49 F.3d at 1448. It appears that Massey is invoking two of these tests.
Massey implicates the nexus test by arguing that a state "can be held responsible for a private decision only when it . . . has provided such significant encouragement, either overt or covert, that the decision at issue must be deemed to be that of the State." Aplt. Br. at 30-31 (citing Blum v. Yaretsky, 457 U.S. 991 (1982)). Under the nexus test, courts consider whether "'there is a sufficiently close nexus' between the government and the challenged conduct such that the conduct 'may be fairly treated as that of the State itself.'" Gallagher, 49 F.3d at 1447 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)).
Massey also relies upon the symbiotic relationship test  "the cumulative effect of all of these links amounted to a symbiotic relationship that presented a question of fact as to the existence of state action." Aplt. Br. at 33-34. Under the symbiotic relationship test, courts inquire whether the state "'has so far insinuated itself into a position of interdependence' with a private party that 'it must be recognized as a joint participant in the challenged activity.'" Gallagher, 49 F.3d at 1451 (quoting Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175 (1972)).
OACAA must reconstitute the Board of Directors to assure that, at a minimum, a quorum of Board members are seated.
OACAA must act to discharge the present Executive Director from his current position in order to restore public trust and confidence in its program. This objective cannot be met if OACAA allows the Executive Director to remain in his current position.
Massey seeks to establish state action by asserting Kagie was responsible for the audit. Specifically, Massey alleged "the state had called the federal government in Denver and asked the federal government to do certain things to remove [him]," and he believed Kagie made that call. Aplt. App. at 218. Massey stated a staff member told him someone named Bob at the federal government had called the staff member to say he had been called by a person from the state who wanted Massey fired, and that the person from the state was Kagie. Massey submits no admissible evidence in support of this assertion.
Other funding sources also identified problems with Massey's management. Although the actual audit report identifying the problems is not in the record, a letter from the Utah Department of Community and Economic Development, Division of Community Development, identified contract violations by OACAA that justified contract termination and termination of OACAA's participation in the Federal Community Services Block Grant program and, thus, elimination of funding. See id. at 12-13. Massey claims the fact that Kagie signed this letter is "evidence" that she put OACAA's funding in jeopardy. Massey does not contest the allegation that OACAA violated its contract. Rather, he tries to blame the problem on the messenger. This allegation is unsupported.
Further, an independent investigator hired to evaluate various employee grievances filed against Massey found serious flaws in his management skills and possible illegalities in procedures. See id. at 166-205. Massey alleges Kagie was "involved" with the grievances, providing the requisite state action. However, he expressly states that he is not alleging Kagie "concocted the complaints against him" or that she influenced the investigation of the grievances. See Aplt. Br. at 32. Rather, he contends "Kagie was working behind the scenes to create a fertile environment" for his termination. Id. This is not evidence of state action.
The district court's grant of summary judgment in favor of the Board is AFFIRMED.
2. The Honorable J. Thomas Marten, United States District Judge, District of Kansas, sitting by designation.


A group of employment and civil procedure scholars in a case presenting the question whether a lawsuit brought as a collective action under Section 216(b) of the Fair Labor Standards Act becomes moot when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff’s individual damage claims. Genesis HealthCare Corp. v. Symczyk, No. 11-1059 (U.S. Supreme Court).
A putative class of consumers in a case presenting the question whether, after Smith v. Bayer Corp., 131 S. Ct. 2368 (2011), when a named plaintiff attempts to defeat a defendant’s right of removal under the Class Action Fairness Act of 2005 by filing with a class action complaint a “stipulation” that attempts to limit the damages he “seeks” for the absent putative class members to less than the $5 million threshold for federal jurisdiction, and the defendant establishes that the actual amount in controversy, absent the “stipulation,” exceeds $5 million, the “stipulation” is binding on absent class members so as to destroy federal jurisdiction. The Standard Fire Insurance Co. v. Knowles, No. 11-1450 (U.S. Supreme Court).
A Fortune 50 financial services client analyzing the scope an arbitrator’s subpoena power.
A group of motor fuel retailers in an multi-district litigation proceeding involving a series of class actions alleging that the sale of motor fuel without compensating for weather-related changes in volume and temperature was fraudulent. In re Motor Fuel Temperature Sales Practices Litig., MDL No. 1840, Civ. No. 07-MDL-1840-KHV (D. Kan.).
AWG Group Ltd. of Great Britain in a case involving international arbitration agreements and the question whether, in disputes involving a multi-stage dispute resolution process, a court or instead the arbitrator determines if a precondition to arbitration has been satisfied. BG Group PLC v. Republic of Argentina, No. 12-138 (U.S. Supreme Court).
A group of amici scholars in a case presenting the question whether, in the absence of any claim that an alleged violation of the Real Estate Settlement Procedures Act of 1974 affected the price, quality, or other characteristics of the settlement services provided, a private purchaser of real estate settlement services has standing to sue under Article III. First American Financial Corp. v. Edwards, No. 10-708 (U.S. Supreme Court).
Semtek International in a case presenting the question of whether the law of the forum state controls the preclusive effect of a federal diversity judgment. Semtek Intern. Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001). See 2000 WL 1706725, 2000 WL 1239810 (briefs) (U.S. Supreme Court).
JPMorgan Chase and other banks in a major class action settlement regarding allegedly anti-competitive interchange fees charged by banks belonging to the Visa and MasterCard networks, regarding the binding nature of class action settlements under both Fed. R. Civ. P. 23(b)(2) & (3) after Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___, 131 S. Ct. 2541 (2011).
A brief in opposition to a cert petition seeking Supreme Court review of the constitutionality of 28 U.S.C. § 636(c)(1) (Magistrate’s Act). Braverman v. Dewey, 135 S. Ct. 231 (2014) (denying cert.). See 2014 WL 4145284 (brief).
SSA Gulf, a leading cargo handling company, in cases presenting questions of federal court jurisdiction and “complete” federal preemption. SSA Gulf, Inc. v. Magee, 544 U.S. 904 (2005); SSA Gulf v. U.S. District Court, 543 U.S. 987 (2004). See 2005 WL 389087, 2004 WL 2751157 (briefs) (U.S. Supreme Court).
Peabody Coal in a case presenting the question whether federal question subject-matter jurisdiction arises pursuant to 28 U.S.C. § 1331 over an action to enforce a federally approved amendment to a mineral lease between a federally recognized Indian tribe and a private corporation. Peabody Coal Co. v. The Navajo Nation, 543 U.S. 1054 (2005). See2004 WL 2961073, 2004 WL 2569698 (briefs) (U.S. Supreme Court).
Shell Oil in an insurance coverage case involving the scope of indispensable party joinder. Shell Oil Co. v. Aetna Cas. and Sur. Co., 158 F.R.D. 395 (N.D. Ill. 1994).
NL Industries in appeal and cross-appeal concerning the scope of equitable laches. Flacke v. NL Industries, Inc., 228 A.D.2d 888, 644 N.Y.S.2d 404 (N.Y.A.D. 3 Dept. 1996).
A leading New York real estate owner and manager in a federal action arising from the administration of the New York state judiciary. Kaufman v. Kaye, 466 F.3d 83 (2d Cir. 2006), 127 S. Ct. 1828 (2007). See 2007 WL 545654, 2006 WL 3877337 (briefs) (U.S. Supreme Court and U.S. Court of Appeals for the Second Circuit).
A Full Faith and Credit case involving the enforceability in federal court of a consent decree entered by a state court enjoining a witness from testifying in the federal action. Baker v. General Motors Corp., 522 U.S. 222 (1998). See 1997 WL 33485584, 1997 WL 471824, 1997 WL 278921, 1996 WL 33414099 (briefs) (U.S. Supreme Court).
A group of amici legal scholars in a case involving the Seventh Amendment limits on judicial review of damages awards. Gasperini v. Center for Humanities, 518 U.S. 415 (1996).See 1996 WL 88776 (brief) (U.S. Supreme Court).
Bank One (later acquired by J.P. Morgan Chase) as trustee on appeal of favorable fraudulent joinder dismissal ruling in tort liability case. May v. Texaco, 73 Fed.Appx. 78 (5th Cir. 2003). See 2002 WL 32362430 (brief) (U.S. Court of Appeals for the Fifth Circuit).
A petition for mandamus involving subject-matter jurisdiction and fraudulent joinder issues regarding some 14,000 actions in the diet drug multi-district litigation. In re Briscoe, 448 F.3d 201 (3d Cir. 2006).
A party to a release in a case involving whether a defendant may assign the right of indemnity or contribution under District of Columbia law. Caglioti v. District Hospital Partners, L.P., 933 A.2d 800 (D.C. 2007). See 2006 WL 5403810 (brief) (District of Columbia Court of Appeals).
A state public employees retirement fund in a case presenting the question whether a federal court may use the supplemental jurisdiction statute in the removal context to prevent a state court from litigating state-law civil claims, where the Younger doctrine would bar the issuance of an injunction to achieve that result. Kansas Public Employees Retirement Sys. v. Reimer & Kroger Assocs., Inc., 519 U.S. 948 (1996). See 1996 WL 33422737 (brief) (U.S. Supreme Court).
A case involving the scope and applicability of the forum non conveniens doctrine. Espinola-E v. Coahoma Chemical Co., 248 F.3d 1138 (5th Cir. 2001), 534 U.S. 820 (2001). See2001 WL 34133755 (brief) (U.S. Supreme Court and U.S. Court of Appeals for the Fifth Circuit).
A telecommunications company in a case involving civil RICO and state-law claims. Straitshot Communications, Inc. v. Telekenex, Inc., 2012 WL 727271, W.D.Wash., March 06, 2012 (NO. C10-268Z); Straitshot Communications, Inc. v. Telekenex, Inc., 2011 WL 6013829, W.D.Wash., December 01, 2011 (NO. C10-268Z); Straitshot Communications, Inc. v. Telekenex, Inc., 2011 WL 2144238, W.D.Wash., May 27, 2011 (NO. C10-268Z); Straightshot Communications, Inc. v. Telekenex, Inc., 2011 WL 1770930, W.D.Wash., May 09, 2011 (NO. C10-268Z); Straightshot Communications, Inc. v. Telekenex, Inc., 2011 WL 1770935, RICO Bus.Disp.Guide 12,046, W.D.Wash., May 09, 2011 (NO. C10-268Z);Straightshot Communications, Inc. v. Telekenex, Inc., 2011 WL 813598, W.D.Wash., March 01, 2011; Straightshot Communications Inc. v. Telekenex, Inc., 2010 WL 4793538, W.D.Wash., November 19, 2010 (NO. C10-268Z).
Product liability claims made by foreign agricultural workers for injuries and damages allegedly caused by exposure to the pesticide dibromo chloropropane (“DBCP”). Chaverri v. Dole Food Co., Inc., --- F.Supp.2d ---, 2012 WL 4097216 (E.D.La., Sept. 17, 2012).