(4) the permitting, construction, modification, maintenance and operation of these facilities, to the extent specifically addressed in this section, are declared to be matters of statewide concern and interest.
(1) "Accessory equipment" means any equipment serving or being used in conjunction with a wireless facility or wireless support structure including, but not limited to, utility or transmission equipment, power supplies, generators, batteries, cables, equipment buildings, cabinets and storage sheds, shelters or similar structures.
(2) "Antenna" means communications equipment that transmits or receives electromagnetic radio signals used in the provision of wireless services.
(3) "Applicant'' means any person or entity that is engaged in the business of providing wireless services or the wireless infrastructure required for wireless services and that submits an application.
(C) collocation of a wireless facility or replacement of a wireless facility.
(5) "Authority'' means any governing body, board, agency, office or commission of a city, county or the state that is authorized by law to make legislative, quasi judicial or administrative decisions concerning an application. "Authority" shall not include any school district as defined in K.S.A. 72-6486, and amendments thereto, or any court having jurisdiction over land use, planning, zoning or other decisions made by an authority.
(6) "Base station'' means a station that includes a structure that currently supports or houses an antenna, transceiver, coaxial cables, power cables or other associated equipment at a specific site that is authorized to communicate with mobile stations, generally consisting of radio transceivers, antennas, coaxial cables, power supplies and other associated electronics. "Base station" does not mean a tower or equipment associated with a tower and does not include any structure that, at the time the relevant application is filed with the authority, does not support or house equipment described in this paragraph.
(7) "Collocation'' means the mounting or installation of wireless facilities on a building, structure, wireless support structure, tower, utility pole, base station or existing structure for the purposes of transmitting or receiving radio frequency signals for communication purposes.
(C) radio transceivers located at the hub's site to process or control the communications signals transmitted and received through the antennas to provide wireless or mobile service within a geographic area or structure.
(9) "Existing structure" means a structure that exists at the time an application to collocate wireless facilities on a structure is filed with an authority. The term includes any structure that is currently supporting or designed to support the attachment of wireless facilities, including, but not limited to, towers, buildings and water towers.
(10) "Public lands, buildings and facilities" does not include any real property, structures or facilities under the ownership, control or jurisdiction of the secretary of transportation.
(11) "Public right-of-way" means only the area of real property in which the authority has a dedicated or acquired right-of-way interest in the real property. It shall include the area on, below or above the present and future streets, alleys, avenues, roads, highways, parkways or boulevards dedicated or acquired as right-of-way. "Public right-of-way" does not include any state, federal or interstate highway right-of-way, which generally includes the area that runs contiguous to, parallel with, and is generally equidistant from the center of that portion of the highway improved, designed or ordinarily used for public travel.
(12) "Replacement" includes constructing a new wireless support structure of comparable proportions and of comparable height or such other height that would not constitute a substantial modification to an existing structure in order to support wireless facilities or to accommodate collocation and includes the associated removal of the pre-existing wireless facilities, if any, or wireless support structure.
(13) "Search ring" means a shape drawn on a map to indicate the general area within which a wireless services support structure should be located to meet radio frequency engineering requirements, taking into account other factors, including topography and the demographics of the service area.
(B) primary equipment enclosures that are no larger than 17 cubic feet in volume, or facilities comprised of such higher limits as the federal communications commission has excluded from review pursuant to 54 U.S.C. § 306108. Associated equipment may be located outside the primary equipment, and if so located, is not to be included in the calculation of equipment volume. Associated equipment includes, but is not limited to, any electric meter, concealment, telecommunications demarcation box, ground-based enclosures, back-up power systems, grounding equipment, power transfer switch, cut-off switch and vertical cable runs for the connection of power and other services.
(15) "Small cell network" means a collection of interrelated small cell facilities designed to deliver wireless service.
(16) "Substantial modification" means a proposed modification to an existing wireless support structure or base station that will substantially change the physical dimensions of the wireless support structure or base station under the objective standard for substantial change, established by the federal communications commission pursuant to 47 C.F.R. 1.40001.
(17) "Transmission equipment" means equipment that facilitates transmission for a wireless service licensed or authorized by the federal communications commission including, but not limited to, radio transceivers, antennas, coaxial or fiber optic cable and regular and backup power supply. "Transmission equipment" includes equipment associated with wireless services including, but not limited to, private, broadcast and public safety services such as wireless local area network services, and services utilizing a set of specifications developed by the institute of electrical and electronics engineers for interface between a wireless client and a base station or between two wireless clients, as well as unlicensed wireless services and fixed wireless services, such as microwave backhaul.
(B) radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies and comparable equipment, regardless of technological configuration.
"Wireless facility" does not mean any wired connections from a wireless support structure or base station to a hub or switching location.
(19) "Wireless services" means "personal wireless services" and "personal wireless service facilities" as defined in 47 U.S.C. § 332(c)(7)(C), including commercial mobile services as defined in 47 U.S.C. § 332(d), provided to personal mobile communication devices through wireless facilities or any fixed or mobile wireless services provided using wireless facilities.
(20) "Wireless infrastructure provider" means any person that builds or installs transmission equipment, wireless facilities or wireless support structures, but that is not a wireless services provider.
(21) "Wireless support structure" means a freestanding structure, such as a monopole, guyed or self-supporting tower or other suitable existing or alternative structure designed to support or capable of supporting wireless facilities. "Wireless support structure" shall not include any telephone or electrical utility pole or any tower used for the distribution or transmission of electrical service.
(22) "Utility pole'' means a structure owned or operated by a public utility as defined in K.S.A. 66-104, and amendments thereto, a municipality as defined in K.S.A. 75-6102, and amendments thereto, or an electric cooperative as defined in K.S.A. 2018 Supp. 17-4652, and amendments thereto, that is designed specifically for and used to carry lines, cables or wires for telecommunications, cable, electricity or to provide lighting.
(23) "Water tower'' means a water storage tank or a standpipe, or an elevated tank situated on a support structure that was originally constructed for use as a reservoir or facility to store or deliver water.
(24) "Wireless services provider" means a provider of wireless services.
(c) (1) An authority shall not charge an application fee, consulting fee or other fee associated with the submission, review, processing and approval of an application that is not required for other wireless infrastructure providers or wireline telecommunications or broadband providers within the authority's jurisdiction.
(2) An authority shall only assess fees or charges for the actual costs relating to the granting or processing of an application that are directly incurred by the authority and the authority shall not charge any market-based or value-based fees for the processing of an application. Such fees and charges shall be reasonably related in time to the occurrence of such costs.
(3) An authority or any third-party entity shall not include any travel expenses incurred in the review of an application for more than one trip per application to the authority's jurisdiction and an applicant shall not be required to pay or reimburse an authority for a consultant or other third-party fees based on a contingency-based or results-based arrangement. Any travel expenses included must be reasonable and directly related to the application.
(B) $2,000 for an application for a new wireless support structure or for a collocation application that is a substantial modification of a wireless support structure.
(d) (1) An authority may not charge a wireless services provider or wireless infrastructure provider any rental, license or other fee to locate a wireless facility or wireless support structure on any public right-of-way controlled by the authority, if the authority does not charge other telecommunications or video service providers, alternative infrastructure or wireless services providers or any investor-owned utilities or municipally-owned commercial broadband providers for the use of public right-of-way. If an authority does assess a charge, including a charge or rental fee for attachment to the facilities owned by the authority in the right-of-way, any such charge must be competitively neutral, with regard to other users of the public right-of-way, including investor-owned utilities or municipally-owned commercial broadband providers, and may not be unreasonable or discriminatory or violate any applicable state or federal law, rule or regulation.
(2) (A) Subject to the provisions of this subsection, a wireless services provider or wireless infrastructure provider, subject to an application, shall have the right to construct, maintain and operate wireless support structures, utility poles, small cell wireless facilities or distributed antenna systems along, across, upon, under or above the public right-of-way. The authority must be competitively neutral with regard to other users of the public right-of-way, may not be unreasonable or discriminatory and may not violate any applicable state or federal law, rule or regulation.
(B) Nothing in this subsection (d) shall be interpreted as granting a wireless services provider or wireless infrastructure provider the right to construct, maintain or operate any facility or related appurtenance on property owned by the authority outside of the public right-of-way.
(C) The right of a wireless services provider or wireless infrastructure provider to use and occupy the public right-of-way shall always be subject and subordinate to the reasonable public health, safety and welfare requirements and regulations of the authority. An authority may exercise its home rule powers in its administration and regulation related to the management of the public right-of-way provided that any such exercise must be competitively neutral and may not be unreasonable or discriminatory.
(D) The authority shall have the right to prohibit the use or occupation of a specific portion of public right-of-way by a provider due to a reasonable public interest necessitated by public health, safety and welfare so long as such interest is exercised in a competitively neutral manner and is not unreasonable or discriminatory.
(E) A wireless services provider or wireless infrastructure provider shall comply with all laws and rules and regulations governing the use of public right-of-way.
(F) An authority may require a wireless services provider or wireless infrastructure provider to repair all damage to a public right-of-way caused by the activities of that provider, or of any agent, affiliate, employee or subcontractor of that provider, while occupying, installing, repairing or maintaining facilities in a public right-of-way and to return the right-of-way to the condition in which it existed prior to the damage. If a wireless services provider or wireless infrastructure provider fails to make the repairs required by an authority, the authority may effect those repairs and charge the provider the reasonable cost of those repairs. If an authority incurs damages as a result of a violation of this paragraph, then the authority shall have a cause of action against a wireless services provider or wireless infrastructure provider for violation of this paragraph, and may recover its damages, including reasonable attorney fees, if such provider is found liable by a court of competent jurisdiction.
(G) If requested by an authority, in order to accomplish construction and maintenance activities directly related to improvements for the health, safety and welfare of the public, a wireless services provider or wireless infrastructure provider shall relocate or adjust its facilities within the public right-of-way at no cost to the authority, as long as such request similarly binds all users of such right-of-way. Such relocation or adjustment shall be completed as soon as reasonably possible within the time set forth in any written request by the authority for such relocation or adjustment, as long as the authority provides the wireless services provider or wireless infrastructure provider with a minimum of 180 days advance written notice to comply with such relocation or adjustment, unless circumstances beyond the authority's control require a shorter period of advance notice. If any such relocation or adjustment is for private benefit, the provider shall not bear the cost of the relocation or adjustment to the extent of such private benefit and the provider shall not be obligated to commence the relocation or adjustment until receipt of funds for such relocation or adjustment. The provider shall have no liability for any delays caused by a failure to receive funds for the cost of such relocation or adjustment and the authority shall have no obligation to collect such funds.
(H) Wireless services providers and wireless infrastructure providers shall indemnify and hold the authority and its officers and employees harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees to include reasonable attorney fees and costs of defense, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including personal or bodily injury or death, property damage or other harm for which recovery of damages is sought, to the extent that it is found by a court of competent jurisdiction to be caused by the negligence of the wireless services provider or wireless infrastructure provider, any agent, officer, director, representative, employee, affiliate or subcontractor of the provider, or their respective officers, agents, employees, directors or representatives, while installing, repairing or maintaining facilities in a public right-of-way. The indemnity provided by this paragraph does not apply to any liability resulting from the negligence of an authority, its officers, employees, contractors or subcontractors. If a provider and the authority are found jointly liable by a court of competent jurisdiction, liability shall be apportioned comparatively in accordance with the laws of this state, without waiving any governmental immunity available to the authority under state law and without waiving any defenses of the parties under state or federal law. This paragraph is solely for the benefit of the authority and the wireless services provider or wireless infrastructure provider and does not create or grant any rights, contractual or otherwise, to any other person or entity.
(I) A wireless services provider or wireless infrastructure provider or authority shall promptly advise the other in writing of any known claim or demand against the provider or the authority related to or arising out of the provider's activities in a public right-of-way.
(3) The provisions of this subsection shall not apply to or affect any authority's jurisdiction over the activities of wireless services providers or wireless infrastructure providers in public utility easements, private easements or on privately owned property.
(4) Nothing in this subsection shall be construed to prevent wireless structures and wireless facilities from being located on state, federal or interstate highway right-of-way in accordance with reasonable policies and procedures adopted by the manager of the state, federal and interstate highway right-of-way under applicable federal and state law.
(e) (1) An authority may enter into a lease with an applicant for the applicant's use of public lands, buildings and facilities. When entering into a lease for use of publicly owned lands, an authority shall offer leases or contracts for applicants to use publicly owned lands that are at least 10 years in duration, unless otherwise agreed to by both the applicant and the authority, and at market rates. Any lease renewals shall be negotiated in good faith. Due to the benefit of increased broadband and wireless services to the citizens of the authority, an authority may choose not to charge for the placement of wireless facilities on public lands. If an authority does charge, any such charges for use of publicly owned lands and facilities must be competitively neutral with regard to other users of the publicly owned lands and facilities, including any investor-owned utilities or municipally owned commercial broadband providers, may not be unreasonable or discriminatory and may not violate any applicable state or federal law, rule or regulation.
(2) If the applicant and the authority do not agree on the applicable market rate for the use or lease of public land and are unable to agree on a process to determine the applicable market rate for any such public land, then the market rate will be determined by a panel of three appraisers. The panel will consist of one appraiser appointed by each party and a third appraiser selected by the two appointed appraisers. Each appraiser will independently appraise the appropriate lease rate and the market rate shall be set at the mean between the highest and lowest market rates among all three independent appraisals, unless the mean between the highest and lowest appraisals is greater than or less than 10% of the appraisal of the third appraiser chosen by the parties' appointed appraisers, in which case the third appraisal will determine the rate for the lease. The appraisal process shall be concluded within 150 calendar days from the date the applicant first tenders a proposed lease rate to the authority. Each party will bear the cost of the party's own appointed appraiser, and the parties shall share equally the cost of the third appraiser chosen by the two appointed appraisers.
(3) Nothing in this subsection shall be construed to prevent wireless structures and wireless facilities from being located on real property, structures or facilities under the ownership, control or jurisdiction of the secretary of transportation in accordance with reasonable policies and procedures adopted by the secretary of transportation under applicable federal and state law.
(4) This subsection (e) shall not apply to public rights-of-way governed by subsection (d).
(18) limit, for less than 10 years, the duration of the approval of an application. Any renewals shall be negotiated in good faith. Construction of the approved structure or facilities shall commence within one year of final approval and shall be diligently pursued to completion.
(g) An applicant for a small cell network involving no greater than 25 individual small cell facilities of a substantially similar design within the jurisdiction of a single authority shall be permitted, upon request by the applicant, to file a consolidated application and receive a single permit for the installation, construction, maintenance and repair of a small cell network instead of filing separate applications for each individual small cell facility, except that the authority may require a separate application for any small cell facilities that are not of a substantially similar design. The authority shall render a decision no later than 60 days after the submission of an application regarding small cell facilities that satisfies the authority's requirements in a single administrative proceeding.
(C) advise the applicant in writing of the authority's final decision, supported by substantial evidence contained in a written record and issued contemporaneously. If an authority denies an application, there must be a reasonable basis for the denial. An authority may not deny an application if such denial discriminates against the applicant with respect to the placement of the facilities of other investor-owned utilities, wireless service providers, wireless infrastructure providers or wireless carriers.
(2) (A) The time period for approval of applications shall begin when the application is submitted and may be tolled within the first 30 days after the submission of the application if the authority notifies the applicant that such application is incomplete, identifies all missing information and specifies the code provision, ordinance, application instruction or otherwise publicly stated procedures that require the information to be submitted.
(B) The time period for approval of applications shall begin running again when the applicant provides the necessary supplemental information. Additionally, the time period for approval of applications may be tolled by the express agreement in writing by both the applicant and the authority.
(B) substantial modification to an existing wireless support structure or base station or any other applications for placement, installation or construction of transmission equipment that does not constitute an eligible facilities request as defined by 47 U.S.C. § 1455(a) within the 90 calendar days review period specified.
(4) An authority shall approve applications for eligible facilities requests, as defined by 47 U.S.C. § 1455(a), within 60 days according to the procedures established by federal law under 47 C.F.R. 1.40001.
(5) An application shall be deemed approved once an applicant has provided notice to the authority that the applicable time periods provided in this section have lapsed.
(6) Within 30 days of the notice provided pursuant to subsection (h)(5), a party aggrieved by the final action of an authority, either by the authority affirmatively denying an application or by the authority's inaction, may bring an action for review in any court of competent jurisdiction.
(i) An authority may not institute any moratorium on the filing, consideration or approval of applications, permitting or the construction of new wireless support structures, substantial modifications of wireless support structures or collocations.
(j) Subject to the provisions of this section and applicable federal law, an authority may continue to exercise zoning, land use, planning and permitting authority within the authority's territorial boundaries with regard to the siting of new or the modification of wireless support structures, wireless facilities, small cell facilities or utility poles, except that no authority shall have or exercise any zoning or siting jurisdiction, authority or control over the construction, installation or operation of any small cell facility or distributed antennae system located in an interior structure or upon the site of any campus, stadium or athletic facility.
(k) Nothing in this section shall be construed to apply to military installations.
(l) The provisions of this section shall take effect and be in force on and after October 1, 2016.
History: L. 2016, ch. 40, § 1; July 1.


text:
In part one of a two-part series, Kenneth Weinberg and Jennifer Howard analyze collateral descriptions in security agreements and financing statements. They advise careful consideration of collateral descriptions to avoid getting pricked.
What’s in a name? In Shakespeare’s Romeo and Juliet, the heroine argued, “That which we call a rose / By any other name would smell as sweet,” suggesting that labels are meaningless. When analyzing collateral descriptions in security agreements and financing statements, courts may be more inclined to agree with Gertrude Stein’s suggestion that names have a direct relationship to an actual thing: “A rose is a rose is a rose.” When drafting collateral descriptions, lawyers should say what they mean, and mean what they say.
This two-part edition of Dispatches from the Trenches discusses some issues to consider when describing collateral in connection with equipment leasing and equipment finance transactions, although comprehensive treatment of the topic of collateral descriptions is beyond the scope of this article. This first part addresses how descriptions used on financing statements are subject to a different standard than descriptions in security agreements, and also provides some advice with respect to broad descriptions by collateral category as well as more specific descriptions based on make, model and serial numbers.
Questions related to the sufficiency of collateral descriptions arise in two contexts: security agreements and financing statements. Different rules apply to the analysis of each, which arise out of the fact that collateral descriptions in security agreements implicate different policy considerations than those in financing statements. Security agreements are drafted to create the security interest and allow it to be enforced as between the secured party and debtor. Financing statements, by contrast, are filed to give notice of the potential of the filer’s security interest to various third parties, including other secured parties, lien creditors and purchasers of the collateral.
Because the purpose of financing statements is to give notice to third parties, requirements for collateral descriptions in financing statements are somewhat less exacting. Indeed, when the substantial revisions to Article 9 were made back in 1998, becoming effective in 2001, several changes were scattered throughout the Uniform Commercial Code with respect to the thoroughness of the collateral description that is required. The older version of Article 9 was often interpreted as requiring “a description of the collateral” in financing statements. However, the current version of Article 9 provides that the financing statement is effective if it “indicates the collateral covered by the financing statement.” The distinction between a description and an indication may not appear to be much at first glance. However, Official Comment No. 1 to §9-504 makes clear that “indication” is an easier standard to satisfy, and all that is required is that a searcher have notice that a person may have a security interest in the collateral claimed. Indeed, the commentary expressly states that an indication of collateral would satisfy the revised Article 9 requirements even if it did not satisfy the older Article 9 requirements.
Section 9-504 provides that a financing statement sufficiently “indicates the collateral” if it provides either a description of the collateral pursuant to §9-108 or an indication that the financing statement covers “all assets or all personal property.” Accordingly, in a financing statement, it is permissible to have a super-generic description such as “all assets of the debtor,” even though such descriptions are specifically prohibited in security agreements.
Notably, the official comment to §9-504 describes the methods for identifying collateral set forth in that section as “safe harbors,” suggesting that courts may find other types of descriptions to be sufficient for purposes of a financing statement. Even more flexibility can be found in §9-506, which provides that a financing statement that substantially satisfies the requirements of a filing is effective, “even if it has minor errors or omissions,” unless the errors or omissions make the financing statement “seriously misleading.” To be on the safe side, however, the conservative practitioner should aim to satisfy the descriptive requirements of §9-108 when drafting collateral descriptions in both security agreements and financing statements, except when drafting a financing statement that appropriately uses an “all assets” description.
There are a few exceptions that are not commonly applicable in equipment leasing and financing transactions. In addition, §9-108(c) expressly prohibits “super-generic” descriptions in a security agreement. It is also worth noting that the flexibility provided for minor errors or omissions with respect to the indication of collateral in financing statements is not available for errors in the security agreement, as §9-506 applies only to financing statements and Article 9 has no corresponding provision applicable to security agreements.
At the end of the day, the best practice is for the financing statement and security agreement to use collateral descriptions that fall within one of the methods outlined in §9-108, except where the financing statement uses the “all assets” description. In equipment leasing and equipment finance transactions, “all assets” descriptions are somewhat unusual, and the more typical transaction involves specific goods. The trick in such cases is to draft a collateral description that is broad enough to sweep in all of the specific items of collateral that the parties intended to secure the debt, but not so broad that the specific items of collateral cannot be identified among the debtor’s remaining unencumbered property. To some extent, the facts and circumstances of the particular case matter in determining how such collateral descriptions should be drafted.
Prior to the 1998 revisions that became effective in 2001, Article 9 required secured parties in financing statements to either indicate the types of collateral or describe the specific items that were subject to a security interest, and courts therefore still often look to the types of collateral defined in the UCC when analyzing the sufficiency of collateral descriptions. Although Revised Article 9 no longer requires descriptions by item or by type, it is still advisable to use the types where possible.
Secured parties must be careful, however, when using the types of collateral defined in the UCC — particularly since Article 9 defines over two dozen types of collateral, such as equipment, fixtures, accounts and inventory. For example, companies involved in equipment leasing and financing transactions generally refer to the leased or financed property as “equipment” in their underlying lease or loan documents, but the property would technically be “inventory” under Article 9 if the property is leased by the debtor as lessor or held by the debtor for sale or lease or to be furnished under a contract of service.
In many cases, only particular items of property are intended to be included as part of the collateral, and the debtor may have many other pieces of property that are intended to remain unencumbered. In such cases, describing the collateral as “equipment” would be overly broad without more, and some additional description beyond the “type” would likely be required.
One common problem that arises is whether or not to use serial numbers when available.
Although they can be useful, the 1998 revisions made clear that serial numbers are not technically required under Article 9. Of course, serial numbers can be double-edged swords. Where reproduced correctly, these numbers clearly reference the particular piece of equipment, but cases of serial number typos abound, where lenders have misstated the serial numbers by one or more digits in a security agreement and/or financing statement. The outcome of such cases is difficult to predict, but the risk is that a mistake could invalidate the security interest or cause it to be found unperfected. For example, in the case In re Pickle Logging, Inc., 286 BR 181 (MD Ga. 2002), where the debtor was a tree-logging company, the secured party took a security interest in eight pieces of logging equipment, including a 548G skidder, serial number DW548GX568154. Both the security agreement and financing statement described the skidder as a “648G skidder, serial number DW648GX568154,” thus mislabeling the serial number of the piece of equipment by a single digit. The mislabeled serial number caused the number to appear to reference a different model of skidder that was made by the same manufacturer. The court found under those circumstances the financing statement was seriously misleading, and if a serial number is inaccurate, there must be additional information that would allow a third party to identify the collateral. The decision in this case very likely turned on the fact that both the model number and the serial number were incorrect. Nonetheless, the case highlights the importance of getting all of the numbers right when using them to describe the equipment.
Mistaken serial numbers are not fatal in many cases, however. For example, in Bishop v. Alliance Banking Company, 412 S.W.3d 217 (Ky. App. 2013), the court held that a backhoe identified in the bank’s financing statement as a “1999 Case Backhoe 580L” with a serial number of “1100249697” was sufficient to reasonably identify the backhoe, even though the first three digits in the serial number were incorrect. When the debtor defaulted, the bank sought to enforce its security interest against an individual who had purchased the backhoe and claimed to be a bona fide purchaser without notice of the prior lien. The court found that the first part of the description, “1999 Case Backhoe 580L,” was correct and sufficient to put the subsequent purchaser on inquiry notice. The court found that the subsequent purchaser should have noticed the similarities in the serial number and undertaken further inquiry. If the subsequent purchaser had asked the debtor how many “1999 Case Backhoe 580L’s” he owned, or called the bank to determine whether the bank claimed any interest in this backhoe, or called the manufacturer (who could have told him that the serial number was invalid), he could have discovered the mistake. Under these facts, the incorrect serial number was not seriously misleading.
The lesson here is to use serial numbers and model numbers wisely and accurately. If the equipment can be sufficiently described without such numbers, that may be the safest course of action. However, if such numbers are necessary to distinguish the filer’s collateral from other collateral that is otherwise too similar, serial numbers and/or model numbers may be necessary. Consider, for example, a secured party who has financed two items of equipment that are the same make and model as several other items of equipment owned by the same debtor. Those facts were present in the Pickle Logging case mentioned above, where the debtor owned at least two 548G skidders and at least two 648G skidders.
We hope you enjoyed this first part of our two-part edition of Dispatches from the Trenches on collateral descriptions. As any good horticulturalist knows, it takes not only skill, but also patience, to create a beautiful rose bush. Similarly, explaining the roots of an artful collateral description takes time. In the second part of this edition of Dispatches from the Trenches, we will dig further into the topic to plant the seeds necessary for a great collateral description.
I am trying to decide if filing a ucc-1 and lien on my property is the right way to go to avoid an illegal foreclosure attempt. Someone removed the first assignment to trust/trustee and replaced it with back dated assignment to new trust/trustee and have named them as plaintiff in foreclosure attempt, Clouded title is assumed here, what is the best way to prove removal of county docs. with no court order to do so?

matches: §9 §9 §9 §9 §9 §9 §9 §9 v.


D.C. Law Library - Chapter 31A. Abatement of Nuisance Property.
(a) For the purpose of carrying into effect § 42-3131.01, the Mayor of the District of Columbia and all other persons, including contractors and employees of contractors acting under his authority or by his direction, are authorized to enter upon and into any lands and tenements in said District, during all reasonable hours, to inspect the same and to do whatever may be necessary to correct, in a good and workmanlike manner, any condition that exists on or has arisen from such lands or tenements in violation of law or of any regulation made by authority of law, with the correction of which condition the owner of said lands or tenements is by law or such regulation chargeable. Any person who shall hinder, interfere with, or prevent any inspection or work authorized by this subchapter shall, upon conviction thereof, be punished by a fine not exceeding $100 or by imprisonment for a period not exceeding 3 months, or by both such fine and imprisonment, in the discretion of the court.
(b)(1) The Mayor may apply to a judge of the District of Columbia for an administrative search warrant to enter any premises to conduct any inspection required or authorized by law to determine compliance with the provisions of this chapter.
(2) The application for an administrative search warrant shall be in writing and sworn to by the applicant and shall particularly describe the place, structure, or premises to be inspected and the nature, scope, and purpose of the inspection to be performed by the applicant.
(3) Before filing an application for an administrative search warrant with a court, the Mayor shall obtain approval by the Office of the Attorney General as to its legality in both form and substance under the standards and criteria of this section and a statement to this effect shall be included as part of the application.
(ii) The proposed inspection comes within the program.
(5) An administrative search warrant issued under this section shall specify the place, structure, premise, vehicle, or records to be inspected. The inspection conducted shall not exceed the limits specified in the warrant.
(6) An administrative search warrant issued under this section authorizes the applicant and other officials or employees of the District to enter specified property to perform the inspection, sampling, and other functions authorized by law to determine compliance with the provisions of this chapter.
(B) If no time period is specified in the warrant, 15 days from the date of its issuance.
This section is referenced in § 6-711.02.
D.C. Law 16-81 designated the existing text of the section as subsec. (a); and added subsec. (b).
§ 42–3131.03. Notice requiring correction of unlawful conditions; service.
(5) If by reason of an outstanding, unrecorded transfer of title the name of the owner in fact cannot be ascertained beyond a reasonable doubt, if served on the owner of record in the manner hereinbefore in this section provided. Any notice required by law or by any regulation aforesaid to be served on a corporation shall for the purposes of this subchapter be deemed to have been served on any such corporation if served on the president, secretary, treasurer, general manager, or any principal officer of such corporation in the manner hereinbefore provided for the service of notices on natural persons holding property in their own right; and, if required to be served on any foreign corporation, if served on any agent of such corporation personally, or if left with any person of suitable age and discretion residing at the usual residence or employed at the place of business of such agent in the District of Columbia. Every notice aforesaid shall be in writing or printing, or partly in writing and partly in printing; shall be addressed by name to the person to be notified; shall describe with certainty the character and location of the unlawful condition to be corrected; and shall allow a reasonable time to be specified in said notice, within which the person notified may correct such unlawful condition or show cause why he should not be required to do so.
This section is referenced in § 6-711.03 and § 42-3131.01.
D.C. Law 17-319 rewrote pars. (3) and (4).
D.C. Law 18- 223, in par. (1), substituted “if sent by electronic mail to the last-known electronic mail address of the person to be notified, or if left,” for “or if left”.
Documentary evidence, prima facie evidence of delivery, certified mail return receipts, see § 14-506.
For temporary (90 day) amendment, see § 2(b) of Abatement of Nuisance Properties and Tenant Receivership Emergency Amendment Act of 2008 (D.C. Act 17-420, July 8, 2008, 55 DCR 7703).
For temporary (90 day) amendment of section, see § 2(b) of Abatement of Nuisance Properties and Tenant Receivership Congressional Review Emergency Amendment Act of 2008 (D.C. Act 17-563, October 27, 2008, 55 DCR 12019).
For temporary (90 day) amendment of section, see § 2053 of Fiscal Year 2011 Budget Support Emergency Act of 2010 (D.C. Act 18-463, July 2, 2010, 57 DCR 6542).
For temporary (225 day) amendment of section, see § 2(b) of Abatement of Nuisance Properties and Tenant Receivership Temporary amendment Act of 2008 (D.C. Law 17-237, October 21, 2008, law notification 55 DCR 11700).


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In Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) was requested to delimit all maritime areas appertaining to Ghana and Côte d’Ivoire in the Atlantic Ocean, including the continental shelf beyond 200 nm. This is the first time an international court or tribunal has delimited the continental shelf beyond 200 nm where one of the parties to the dispute had received recommendations concerning the location of the outer limit of its continental shelf from the Commission on the Limits of the Continental shelf (CLCS). This makes the case particularly interesting for the purpose of clarifying procedural issues and the relationship between the CLCS, its recommendations, and international courts and tribunals.
A previous post by Nigel Bankes provides a general commentary on the Judgment of the Special Chamber.
The purpose of this post is to take a closer look at the parts of the Judgment dealing with the outer continental shelf delimitation, and discuss both procedural and substantive issues. Did the Special Chamber act in accordance with previous judicial practice, contributing to establishing a predictable and consistent practice? Further, the blogpost looks ahead to future delimitation cases, and considers whether the delimitation methodology applied by courts and tribunals in delimitation disputes between adjacent States should also be applied in delimitations between opposite States. The post uses the upcoming delimitation of the continental shelf between Nicaragua and Colombia beyond 200 nm from the Nicaraguan coast as an example.
Ghana and Côte d’Ivoire agreed that the Special Chamber had jurisdiction to delimit the continental shelf beyond 200 nm, up to the outer limit of the continental shelf. Both parties share the position that the respective roles of the CLCS and the Special Chamber are not conflicting and the one does not constrain the other in exercising their functions. The Special Chamber still had to decide on its jurisdiction proprio motu, and whether the submissions of the parties concerning the continental shelf beyond 200 nm were admissible (at para. 489).
In accordance with international judicial practice (see Arbitration between Barbados and the Republic of Trinidad and Tobago relating to the delimitation of the exclusive economic zone and the continental shelf between them, at para. 213; Bangladesh/Myanmar, para. 362) the Special Chamber emphasized that in law there is only a single continental shelf, rather than an inner continental shelf and a separate outer continental shelf. Upon this basis, the Special Chamber found that it had jurisdiction to delimit the shelf beyond 200 nm, but only if such a continental shelf existed (at para. 491). The Special Chamber found that “[t]here is no doubt about this in the case before the Special Chamber. Ghana has already completed the procedure before the CLCS. Côte d’Ivoire has made its submission to the CLCS and, although as yet the latter has not issued any recommendation, the Special Chamber has no doubt that a continental shelf beyond 200 nm exists for Côte d’Ivoire since its geological situation is identical to that of Ghana, for which affirmative recommendations of the CLCS exist.” (para. 491).
In cases subsequent to Bangladesh/Myanmar where the question of delimitation of the continental shelf beyond 200 nm has been raised, the courts and tribunals have reached a common understanding that there is no requirement that the CLCS should have reviewed the submission and issued its recommendations in accordance with Article 76(8) before a court or tribunal can undertake the delimitation of the continental shelf beyond 200 nm (see Bangladesh/Myanmar at para. 373; Bangladesh v. India at para. 457-458; Questions of the delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles beyond 200 nautical miles, at para. 105-106).
In accordance with judicial practice, the Special Chamber in Ghana/Côte d’Ivoire found that its delimitation of the continental shelf beyond 200 nm would not interfere with the functions of the CLCS. On this basis, the Special Chamber concluded that it had jurisdiction to decide on the delimitation, and that the parties’ relevant submissions were admissible (at para. 494).
Although earlier jurisprudence indicated that international courts or tribunals should not delimit the continental shelf unless the CLCS had decided on the entitlement of the parties to such shelf (see for example the decision of the International Court of Justice in Nicaragua v. Honduras at para. 319), recent jurisprudence demonstrates that the court or tribunal may undertake an assessment of entitlement, without encroaching on the functions of the CLCS, as delimitation and delineation are two different processes, the one without prejudice for the other. Similar to the Bay of Bengal cases, both parties in Ghana/Côte d’Ivoire had made submissions to the CLCS, serving as evidence of entitlement to the continental shelf beyond 200 nm. The Special Chamber was in no doubt that a continental shelf beyond 200 nm existed in respect of both Ghana and Côte d’Ivoire (at para. 496). Both parties agreed that each of them had an entitlement to the continental shelf beyond 200 nm, but disagreed on the scope of such entitlement (at para. 496).
Ghana pointed out that it had made a full submission to the CLCS and received recommendations from the CLCS, and “has already accepted the outer limits of its outer continental shelf based on the Commission’s recommendations” (Ghana/Côte d’Ivoire, at para. 500). Accordingly, the outer continental shelf limits of Ghana have become “final and binding” in accordance with article 76(8) of the LOSC. Ghana further asserted that in the present case “this Special Chamber, and indeed any international court, is bound to respect the decision of the Commission on the delineation of the outer limits of national jurisdiction” (at para. 501). Côte d’Ivoire acknowledged that Ghana has an entitlement which enables it to claim rights over the continental shelf beyond 200 nm (para. 507), but maintains that it has overlapping entitlements to the same area, as demonstrated in its revised submission to the CLCS. Therefore, Côte d’Ivoire points out that although “Ghana’s entitlement is particularly incontestable in that the CLCS has already adopted recommendations in this regard” it also emphasizes that “the delineation by the CLCS is in the form of a recommendation, without prejudice to the (lateral) delimitation between the States with adjacent or opposite coasts” (at para. 510). Upon this basis Côte d’Ivoire maintained that the recommendations do not preclude the right of Côte d’Ivoire to claim a continental shelf in the area to which the recommendations apply.
The arguments by Ghana and Côte d’Ivoire give rise to an important discussion, namely what weight should be ascribed to the CLCS’ recommendations, for whom are such recommendations final and binding, and when do they achieve such status. In Questions of the delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles beyond 200 nautical miles, the ICJ asserted that “pursuant to paragraph 8 of Article 76 of UNCLOS, [limits established on the basis of CLCS recommendations] are “final and binding” upon the States parties to that instrument” (at para. 108). However, the ICJ further emphasized that “[b]ecause the role of the CLCS relates only to the outer limits of the continental shelf, and not to delimitation, Article 76 of UNCLOS states in paragraph 10 that ‘[t]he provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts’” (at para. 110). This lends support to the view that Côte d’Ivoire cannot be bound by the final and binding limits established by Ghana on the basis of CLCS’ recommendations.
On the same basis, the Special Chamber did not find it necessary to deal with the arguments of the parties concerning the recommendations of the CLCS, as the recommendations of the CLCS “are without prejudice to the lateral delimitation of the continental shelf between Ghana and Côte d’Ivoire”. The Special Chamber finds support for this assertion in the summary of the CLCS’ recommendations to Ghana, where the CLCS sets out that “in the absence of an international continental shelf boundary agreement between Ghana and Côte d’Ivoire, the Subcommission does not make recommendations with respect to the outer limit fixed point OL-GHA-9 as originally submitted by Ghana” (at para. 60). The Special Chamber chose to follow previous judicial practice, where it has thoroughly been established that just as the functions of the CLCS are without prejudice to the question of delimitation of the continental shelf, so is the exercise by international courts and tribunals of their jurisdiction with regard to delimitation of maritime boundaries, including that of the continental shelf, without prejudice to the CLCS’ exercise of its function on matters related to the delineation of the outer limits of the continental shelf (Bangladesh/Myanmar, at para 379).
Ghana/Côte d’Ivoire is the third time an international court or tribunal has delimited the continental shelf beyond 200 nautical miles (nm). The two other cases, the Bay of Bengal cases, apply to an area of special geographical circumstances, and it has therefore been argued that the Bay of Bengal cases may have limited precedential value. However, this assessment only applies to the question of entitlement, not to the delimitation methodology.
Ghana asserted that “because ‘there is only a single continental shelf under the Convention’, it follows that the appropriate method for delimiting the continental shelf remains the same, irrespective of whether the area to be delimited lies within or beyond 200 M” (at para. 522). Côte d’Ivoire shared this opinion, and maintained that “in the present case, no particular circumstance justifies recourse being made to different objective delimitation methods within and beyond 200 nautical miles” (at para 524).
In accordance with previous judicial practice in the Bay of Bengal cases (Bangladesh/Myanmar, at para. 455; Bangladesh v. India, at paras. 457-458), the Special Chamber asserted that there is only one single continental shelf, and therefore it would be inappropriate to make a distinction between the shelf within and beyond 200 nm as far as the delimitation methodology was concerned (at para. 526). Therefore, the delimitation line for the territorial sea, EEZ and continental shelf within 200 nm, continues in the same direction until it reaches the outer limits of the continental shelf.
Although case law on delimitation methodology for the continental shelf beyond 200 nm is sparse, it is at the same time uniform and consistent, and ensures predictability for other delimitation disputes.
Can current judicial practice on delimitation between adjacent States serve as a model for delimiting the outer continental shelf between opposite States?
The Special Chamber’s decision in Ghana/Côte d’Ivoire, contributes to a line of relatively uniform practice amongst the variety of adjudicative bodies delimiting the continental shelf beyond 200 nm. It seems to be well established that in so far as the parties to the dispute have entitlements to the disputed area beyond 200 nm, supported by means of a submission to the CLCS in accordance with Article 76(8), there is no requirement for the CLCS to issue recommendations before the proceedings may continue. In fact, in Ghana/Côte d’Ivoire, the recommendations were assigned no weight as they are deemed to be without prejudice for the delimitation of maritime boundaries between States.
Although judicial practice at this stage comes across as uniform, it is worth noting that all delimitation cases thus far, have been concerned with delimitation between adjacent States. There is still considerable uncertainty as to whether the same practice should be maintained in cases of delimitation between States with opposite coasts, such as in the merits phase of Questions of the delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles beyond 200 nautical miles, in which a delimitation line between the States’ continental shelf beyond 200 nm would also constitute a delineation line. A brief analysis of this case in light of previous judicial practice, serves as a good example for such discussion.
On the procedural issue of admissibility, the ICJ in Questions of the delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles beyond 200 nautical miles, suggested that in accordance with previous judicial practice (but without any particular references) that Nicaragua, as a State party to the LOSC is required to make an submission to the CLCS in accordance with article 76(8), but that there is no requirement for the Court to await the CLCS’ recommendations, since the delimitation of the continental shelf can be undertaken independently of recommendations from the CLCS (at para. 114). Upon this basis, the ICJ found that the delimitation of the continental shelf beyond 200 nm was admissible.
Awaiting the ICJs decision on the merits, only a hypothetical analysis may be offered on the remaining issues.
Previous practice implies that in the merits phase of the case, the Court will first be faced with the question of whether it has jurisdiction to delimit the continental shelf between Nicaragua and Colombia, and if so, if there is any reason why it should decline to exercise such jurisdiction.
In all previous cases, the main conclusion of the court or tribunal has been that in exercising its jurisdiction to delimit the continental shelf beyond 200 nm, it would not encroach upon the functions of the CLCS, as the delimitation of the continental shelf between States is different from delineating it towards the Area (Bangladesh/Myanmar at para. 393; Bangladesh v. India at para. 76; Ghana/Côte d’Ivoire at para. 492-495). Also in the preliminary objections phase in Questions of the delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles beyond 200 nautical miles, the ICJ seems to adhere to the same idea, when it observes that the role of the CLCS is “preventing the continental shelf from encroaching on the ‘area and its resources’, which are ‘the common heritage of mankind’” (at para. 109). However, in the process of delimitating the continental shelf beyond 200 nm between opposite States with overlapping claims, there is no question of drawing a line with the Area, but only a delimitation line between the States.
An important discussion of the Court will accordingly be the States’ entitlement to the continental shelf beyond 200 nm. If the Court concludes that they have overlapping entitlements to the continental shelf beyond 200 nm, the function of the CLCS of drawing a delineation line between areas subject to national jurisdiction and the Area, will be irrelevant.
The issue of entitlement has come up in all previous delimitation cases beyond 200 nm, and ITLOS observed that “the question the Tribunal should first address (…) is whether the Parties have overlapping entitlements to the continental shelf beyond 200 nm. If not, it would be dealing with a hypothetical question” (Bangladesh/Myanmar at para. 399). The Tribunal concluded that “as the question of the parties’ entitlement to the continental shelf raises issues that are predominantly legal in nature, the Tribunal can and should determine entitlements of the parties in this particular case” (Bangladesh/Myanmar at para. 413). Bangladesh and Myanmar denied each other’s entitlement to the continental shelf beyond 200 nm, and claimed there was no overlap, but the Tribunal concluded that both States had entitlements to the continental shelf beyond 200 nm, and that their submissions to the CLCS indicated that such entitlements overlap (at para. 449). In Bangladesh v. India, both parties agreed that they had entitlements beyond 200 nm, and neither party denied that there is a continental shelf beyond 200 nm in the Bay of Bengal (at para. 78). In Ghana/Côte d’Ivoire, the Special Chamber had no doubt that a continental shelf beyond 200 nm existed. Ghana had already completed the CLCS procedure, and although Côte d’Ivoire had not yet received recommendations, the Special Chamber observed that it had “no doubt that a continental margin beyond 200 nm exists for Côte d’Ivoire since its geological situation is identical to that of Ghana” (at para. 491).
The forthcoming delimitation between Nicaragua and Colombia is different from previous cases for several reasons. The parties disagree on the entitlement beyond 200 nm. Nicaragua has made a submission to the CLCS documenting its continental shelf in accordance with Article 76(8). Colombia is in no position to make its own submission to the CLCS, as it is not a party to the LOSC, but it has submitted several notes verbale to the CLCS addressing the submission by Nicaragua, maintaining that the Nicaraguan submission overlaps with the entitlement of Colombia to the continental shelf appurtenant to the Colombian Islands in the Caribbean as well as Colombia’s continental territory. Colombia argues that “there are no areas of extended continental shelf within this part of the Caribbean Sea given that there are no maritime areas that lie more than 200 nautical miles from the nearest land territory of the coastal States” (in Territorial and Maritime Dispute (Nicaragua v. Colombia), at para. 122). In any case, the ICJ has already established in the Territorial and Maritime Dispute (Nicaragua v. Colombia), that “the definition of the continental shelf set out in Article 76, paragraph 1, of UNCLOS forms part of customary international law” (at para. 118). This also means that States non-parties to the LOSC are entitled to the continental shelf extending beyond 200 nm, to “the outer edge of the continental margin”. In the forthcoming case, the ICJ has to determine whether the States have overlapping entitlements in an area beyond 200 nm from the coast of Nicaragua.
The Bay of Bengal is in a unique geological position, and there is great scientific certainty as to the extent of the continental margin in the area, but the Tribunal observed that “[it] would have been hesitant to proceed with the delimitation of the area beyond 200 nm had it concluded that there was significant uncertainty as to the existence of a continental margin in the area of question” (Bangladesh/Myanmar at para 443). It seems that the Tribunal is of the opinion that such a situation could encroach upon the function of the CLCS, as a scientific body. The only alternative to proceeding with the delimitation, is to await CLCS’ assessment of the submission in accordance with Article 76(8). However, if a court or tribunal were to decide not to proceed with the delimitation beyond 200 nm, it would in many instances leave the dispute in a dead-lock. In both Bay of Bengal cases, the States had blocked the work of the CLCS in accordance with Rule 46 of the CLCS’ Rules of Procedure, which provides that the CLCS cannot consider the submissions until the delimitation has been resolved (Bangladesh/Myanmar at para. 390-392; Bangladesh v. India at para. 82). Similarly, Colombia has submitted several notes verbale requesting the CLCS not to consider the submission of Nicaragua pending the delimitation of the continental shelf between the States. If the ICJ were to decide not to proceed with the delimitation of the area beyond 200 nm between Nicaragua and Colombia, the dispute would remain unresolved.
In addition, it is quite clear from the Special Chamber’s discussion in Ghana/Côte d’Ivoire that the recommendations, and the limits established on the basis of such recommendations, as a consequence of LOSC Art. 76(10) are not binding either for the Court, or for States with overlapping entitlement (at para. 519). As for the specific case of Nicaragua and Colombia, Colombia would at any rate, as a non-party with an overlapping claim of entitlement, not be bound by the potential CLCS recommendations to Nicaragua.
Consequently, in so far as the Court establishes the existence of entitlement to the continental shelf, it seems inevitable that the ICJ undertakes the delimitation of the continental shelf between Nicaragua and Colombia in the area beyond 200 nm from the Nicaraguan coast.
The question can thus be raised if the ICJ could and should apply the same methodology as applied by courts and tribunals in previous delimitation cases beyond 200 nm. A uniform practice has developed in the case law, where the court or tribunal has maintained that there is only one continental shelf, and therefore the same principles for delimitation applies both within and beyond 200 nm (Bangladesh/Myanmar at paras. 454-455; Bangladesh v. India at paras. 457-458; Ghana/Côte d’Ivoire at para. 526). However, as all previous cases have concerned delimitation between adjacent cases, the method applied in practice has been to continue the delimitation line between the States, in the same direction, until it reaches the outer limits of the continental shelf, where the final and binding continental shelf limits established on the basis of CLCS recommendations would mark the outermost point of the delimitation line. This suggests that the Court should apply the general principles of maritime delimitation also in the delimitation between Colombia and Nicaragua in the area seaward of 200 nm from the coast of Nicaragua.
However, several factors complicate the delimitation. The location of the Colombian archipelago in the Southwestern Caribbean sea, San Andrés and Isla de Providence, situated approximately 120 nm from the Nicaraguan coast and well beyond 400 nm from the coast of Colombia, makes the construction of a median line difficult. If the Court were to conclude that both parties have entitlements to the continental shelf in the disputed area, the Court would be required to consider whether there exists a priority in the entitlement to the continental shelf within and beyond 200 nm. Due to the circumstances in the Caribbean sea, it is hard to predict if and how the Court can continue the practice of delimiting the continental shelf beyond 200 nm in accordance with the general principles for maritime delimitation.
The argumentation and decision of the Special Chamber in Ghana/Côte d’Ivoire, places the judgement in line with previous delimitation cases, contributing to a uniform and predictable practice, and confirming that the different courts and tribunals dealing with international adjudication of delimitation disputes are speaking in unison. If one relies on the international courts and tribunals to continue such practice, this gives promise for an interesting decision in the merits phase in the delimitation of the continental between Nicaragua and Colombia in the area beyond 200 nm from the Nicaraguan coast, where we can expect a clarification of the relationship between the CLCS and courts and tribunals, the position of non-parties in continental shelf disputes, and the potential priority between the right to a continental shelf within and beyond 200 nm – all within the context of a dispute between opposite states rather than adjacent states.
Thanks to Alex Oude Elferink for his comments on an earlier draft of this post.
This entry was posted in Adjacent coast, Continental shelf, Entitlement, Jurisdiction, Maritime delimitation, Opposite coast. Bookmark the permalink.

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DECIDED MAY 31, 1973. REHEARING DENIED JUNE 21, 1973.
Murder. Gwinnett Superior Court. Before Judge Pittard.
Harrison Garner, G. Hughel Harrison, for appellant.
W. Bryant Huff, District Attorney, Gary Davis, Dawson Jackson, Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, Assistant Attorney General, B. Dean Grindle, Jr., Deputy Assistant Attorney General, for appellee.
Herman Franklin Wilburn was indicted and convicted of the murder of Bonnie Skinner (also known as Mrs. Herman Franklin Wilburn) by shooting her with a pistol. He was sentenced to life imprisonment.
The evidence shows that the defendant and the deceased had lived together as man and wife at the home of his father for about a year; that his father and his 17-year-old brother Jack also lived in the home. On the night of September 8, 1972, the defendant, the deceased and Jack went to a movie in the deceased's car. About 11:00 p. m., they brought Jack back to the home and the defendant and the deceased went for a ride. Jack never saw the deceased again but about 3:15 o'clock the next morning the defendant returned to the home alone. He gave Jack his .38 caliber Smith Wesson pistol and asked him to wipe the deceased's fingerprints off it. Jack unloaded the pistol, wiped the fingerprints and blood from it, and laid it on the tank in the lavatory. At the request of the defendant, Jack also wiped some blood out of the seat of the car. Jack and the defendant then went in the car to look for their father. The defendant told Jack that the deceased was trying to shoot him, and that he just twisted the gun around, that it discharged, and that he then threw her body in the Chattahoochee River at Rogers Bridge. While they were riding, the defendant was drinking liquor and when he went to sleep, Jack turned the car around and came back to their home about 7:00 a. m. The father was home at that time and Jack reported the facts to him. The defendant was drunk and asleep in the car at that time and had the pistol stuck in his belt. The father took the pistol and later gave it to the police officers. Jack and his father went to Rogers Bridge and found fresh bloodstains on the bridge. Jack went to get the police.
About 2:00 o'clock on the morning of the homicide, the defendant went to the home of a friend and told him that he had been to the river, that he and the deceased had had an argument about her talking with a truck driver, that the deceased had "pointed a gun at him and he started to wring it out of her hand and the gun went off." The defendant had blood on his hands and some on his shirt. He washed his hands at his friend's house and stayed there about an hour.
The police officers who were summoned arrived at the defendant's home about 7:30 a. m. and found the defendant sleeping in the front seat of the car; there was blood on the dash inside the car; the officers awakened the defendant and asked him where Bonnie Skinner was and he said he did not know. He stated that he did not know "where the bloodstains came from." The defendant was not then placed under arrest nor were his movements restricted. The defendant got out of the car, was walking around it and stated that he guessed "he blew her brains out." The remark was made spontaneously by him and was not in response to any question. The defendant had a strong odor of alcohol on his breath and was cursing. After the officers were there about 45 minutes the defendant was arrested on a public drunk charge.
Detective Puckett testified that he found the body of a white female he identified as Bonnie Skinner in the Chattahoochee River; that he knew it was she because he had seen her driver's license photograph earlier in the day and because he had been told what kind of clothes she was wearing at the time her body was thrown into the river.
One witness testified that Bonnie Skinner worked at a Truck Stop on Highway I-85; that she and the defendant came by the Truck Stop on the night of the homicide sometime between 11:00 p. m. and 2:00 a. m. and that Bonnie was driving the car.
Dennis A. Mills, a Gwinnett County Detective, testified that on September 9th about 7:35 a. m. he received a radio call which initiated his investigation. He went to the home of the defendant where another officer was already present and asked the defendant where his wife was. The defendant told him she was in the house. Officer Mills left the defendant's home and went to the police station where he talked with the defendant's brother, Jack. Officer Mills returned to the defendant's home and made some pictures of the automobile of the deceased which showed bloodstains on the seat, on the floorboard on the right, in the front seat area, and a few bloodstains around the door area on the driver's side. He went to Rogers Bridge in Duluth about 9:00 a. m. and observed bloodstains on the bridge. A search was conducted of the river and the body of Bonnie Skinner was found about 1:00 p. m. that day about 12 feet from the Gwinnett County shore line — the river was 50 feet wide at that point. Earlier in the day at 11:40 a. m., Officer Mills talked with the defendant at the police station. At that time he was placed under arrest for murder. The defendant was advised of his constitutional rights, stated that he understood them and wanted to make a statement. The defendant told the officers that Bonnie Skinner was not actually his wife but that they had lived together off and on for the last four years; that he was drinking liquor and beer that night, that he, Bonnie and his brother Jack went to a drive-in movie that night and left there about 12:30 a. m.; that he took his brother home; that he and Bonnie went to the Truck Stop; that Bonnie got out of the car, went over in the parking lot and talked to a truck driver; they left the Truck Stop with Bonnie driving the car; that an argument developed over her talking with the truck driver; that she slapped him, that while they were driving down the road, she pulled his gun from underneath the seat on the driver's side, cocked it, and pointed it at him; that he grabbed the gun, twisted it, and it discharged shooting Bonnie; that he stopped the car which ran into a bank; that the car hit the bank and he got her over onto the passenger side of the vehicle; that he drove the car to Rogers Bridge and threw her body into the Chattahoochee River; that he returned home, awakened his brother about 3:15 a. m. and told him what happened; that he asked him to clean the gun; that while he and Jack were riding in the car, he was drinking and "passed out" and after that did not remember much.
The defendant in his unsworn statement to the jury reiterated the statement he had previously given the police officers, except he stated that after they left the Truck Stop, Bonnie started arguing about him "running around on her, so we had a little argument and going on up the road and I started to take a drink of liquor. At the time when I started to take it she sort of slapped me, and I thought everything was fine and all at once she pulled the gun on me, stuck it up in my jaw, cocked it and told me, said if I ever found you was running around on me I would kill you. So at that time she looked back at the road and when she did I grabbed her arm with the intentions of just moving it out of the way. We run out of the road, she lost control of the car, we went up a bank and at that time, the gun went off." He stated that he threw her body in the river at the bridge.
The medical testimony showed that Bonnie Skinner died as a result of a single large caliber bullet wound just under the right jaw. The wound was a contact wound where the muzzle of the gun was against the tissue when the gun was fired. The victim's head was not in an upright position when the bullet entered it but was in a tilted position, a position not normal for driving. The victim was alive at the time the wound was inflicted, and it was the sole cause of death.
1. The appellant contends that there is no evidence in the record that Bonnie Skinner was in fact killed by the acts of the appellant. The enumerated evidence shows that the appellant said at various times that: "he had blown her head off," that he had accidentally shot her after she pointed a gun at him, and that he accidentally shot her while they were quarreling.
"To kill by using a deadly weapon in a manner likely to produce death, will raise a presumption of intention to kill." Moon v. State, 68 Ga. 687 (7); Flannigan v. State, 135 Ga. 221 (4) ( 69 S.E. 171); Plummer v. State, 200 Ga. 641 (1) ( 38 S.E.2d 411); Carrigan v. State, 206 Ga. 707 ( 58 S.E.2d 407); Ogletree v. State, 209 Ga. 413 (3) ( 73 S.E.2d 201); Fisher v. State, 228 Ga. 100 (2) ( 184 S.E.2d 156); Chandle v. State, 230 Ga. 574.
The evidence was sufficient to submit to the jury the question of homicide of the deceased. Furthermore, the appellant admitted inflicting the wound which caused her death.
2. The appellant contends that the statement made to the police officers while they were in the yard of his home talking to him was inadmissible because he was not advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 473 ( 86 S.C. 1602, 16 L.Ed.2d 694, 10 ALR3d 974) and Jackson v. Denno, 378 U. S. 368 ( 84 S.C. 1774, 12 L.Ed.2d 908, 1 ALR3d 1205). There is no merit in this contention. The decision in Miranda applies to in-custody interrogation. The decision in Jackson v. Denno deals with the voluntariness of a confession and has no application to advising an appellant of his constitutional rights. Dennis v. State, 226 Ga. 341 (2) ( 175 S.E.2d 17); Kemp v. State, 227 Ga. 251 (1) ( 179 S.E.2d 920).
3. The appellant contends that the court erred in directing the jury to return a sentence of life imprisonment on the punishment phase of the trial. We do not agree. Life imprisonment was the only lawful sentence which could be returned by the jury in this case for this crime, under U.S. Supreme Court decisions, after finding the defendant guilty. Compare Furman v. Georgia, 408 U.S. 238 ( 92 S.C. 2726, 33 L.Ed.2d 346); Sullivan v. State, 229 Ga. 731 ( 194 S.E.2d 410); Scott v. State, 230 Ga. 413.
ARGUED MAY 15, 1973 — DECIDED MAY 31, 1973 — REHEARING DENIED JUNE 21, 1973.

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No. 06-cv-275-JD, Opinion No. 2006 DNH 131.
On October 5, 2006, the court issued an order (document no. 20) granting plaintiff Access Group's motion to remand and motion for attorney fees and costs under 28 U.S.C. § 1447(c). Now before the court are Access Group's accounting of the fees and costs incurred as a result of removal and defendant Daniel Frederico's objection. Access Group requests a total of $3,840 for attorney fees and $67.50 for expenses.
When, as here, the removing party lacks "an objectively reasonable basis for seeking removal," § 1447(c) provides that an "order remanding [the] case to state court `may require payment of just costs and any actual expenses including attorney fees, incurred as a result of removal.'" Martin v. Franklin Capital Corp., 126 S. Ct. 704, 707, 711 (2005) (quoting § 1447(c)). In calculating such an award, the court shall employ the lodestar methodology. See Huffman v. Saul Holdings Ltd. P'ship, 262 F.3d 1128, 1134 (10th Cir. 2001) (holding that district courts should "ensure that an award of attorneys' fees pursuant to § 1447(c) is reasonable"); Albion Pac. Prop. Res., LLC v. Seligman, 329 F. Supp. 2d 1163, 1166-73 (N.D. Cal. 2004) (employing the lodestar approach in awarding attorney fees under § 1447(c)).
Under the lodestar approach, the court "must determine `the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.'" Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 295 (1st Cir. 2001) (quoting Hensley v. Eckherhart, 461 U.S. 424, 433 (1983)). The movant bears the burden of establishing the reasonableness of the claimed hourly rates and hours billed. Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984). After the lodestar is calculated, the court may, in exceptional cases, make further adjustments to the award depending on a number of factors. Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986).
Access Group's attorney, Daniel C. Proctor, claims an hourly rate of $200, which he states is his customary rate for commercial collection work. Frederico correctly points out that Proctor has not established that this rate is in line with the local market rate for such work. See Andrade v. Jamestown Hous. Auth., 82 F.3d 1179, 1190 (1st Cir. 1996). Nevertheless, rather than deny Proctor's request outright or require him to supplement his filings, the court will rely on its own understanding of the prevailing local rates. See Hensley, 461 U.S. at 437 ("A request for attorney's fees should not result in a second major litigation."); Andrade, 82 F.3d at 1190 ("[T]he court is entitled to rely upon its own knowledge of attorney's fees in its surrounding area in arriving at a reasonable hourly rate.").
The court finds Proctor's claimed rate slightly inflated. Proctor, who graduated from law school in 1988, has been practicing before this court for approximately seventeen years. On the basis of his fee application, it appears that Proctor operates a general practice one-attorney firm in Concord, New Hampshire. According to "The 2000 Desktop Reference on The Economics of Law Practice in New Hampshire," published by The New Hampshire Bar Association, the median hourly rate for such a practitioner falls between $136 and $150. See Silva v. Nat'l Telewire Corp., No. 99-219, 2001 WL 1609387, at *3 (D.N.H. 2001) (citing The 2000 Desktop Reference and finding that $150 was a reasonable hourly rate for a Merrimack County litigator with seventeen years experience). To reflect the passage of time since publication of The 2000 Desktop Reference, the court will adjust the median hourly rate to $180. Such a rate provides reasonable compensation for the nature of the work involved in this relatively straight forward debt collection case. Cf. Bryan M. v. Litchfield Sch. Dist., No. 04-246, 2005 WL 3287478, *6 (D.N.H. 2005) (setting an hourly rate of $200 for an attorney with comparable experience in a more complex case brought under the Individuals with Disabilities Education Act).
Frederico also objects to the time Proctor billed for requesting the attorney fees and for the performance of non-core legal work. Frederico is correct that courts ordinarily compensate the time spent compiling a fee application at a reduced "non-core" rate. See Brewster v. Dukakis, 3 F.3d 488, 492-94 (1st Cir. 1993). The court finds that a reduced hourly rate of $140 is reasonable compensation for the time Proctor spent on non-core work, including the preparation of the fee application. Cf. id. (affirming the district court's hourly rates of $120 for core and $80 for non-core legal work). The court further finds that the clerical or non-lawyer work performed by Proctor is properly credited at a rate of $75 per hour.
As to the billing record itself, the court rejects Frederico's contention that Proctor failed to satisfy the requirement to present a contemporaneous time record of the hours and tasks billed. Fee applicants are not required to submit the original time sheets; reasonably detailed compilations that attest to the nature of the work done, the dates on which it was done, who did it, and for how long, can be sufficient to meet the applicant's burden. See Gay Officers Action League, 247 F.3d at 297. Proctor's properly verified submission provides sufficient detail for the court to discern the reasonableness of his claims.
Frederico next argues that the court should not allow fees for the time Proctor spent drafting his motion for remand or his motion for sanctions. Because "none of the arguments or cases cited by [Proctor]" were cited by the court in its remand order, Frederico argues Access Group's success in winning a remand was not attributable to Proctor. See id. at 296 (noting, in a 42 U.S.C. § 1988 fee-shifting case, that the "degree of success is critical in determining the amount of a fee award").
First, Proctor did succeed in winning a remand to state court. Second, although the court did not adopt Proctor's arguments verbatim, it is not fair to portray his work product as unavailing. Third, and more fundamentally, § 1447(c)'s fee-shifting provision, unlike other fee-shifting statutes such as § 1988, is aimed at deterring behavior (i.e., the filing of frivolous or vexatious removals, see Martin, 126 S. Ct. at 711), rather than encouraging behavior (e.g., the vindicating of constitutional rights, see Gay Officers Action League, 247 F.3d at 295). It is a punitive provision that focuses on the party seeking removal, not the party opposing it. Therefore, to the extent that Proctor's efforts to oppose the removal were reasonable, the degree of success of his specific arguments is not important.
Frederico also argues that Access Group should not be awarded fees for the time Proctor spent in reviewing and responding to the Answer and Counterclaim Frederico filed with this court. Frederico argues that Proctor's motion to strike those pleadings was never ruled on by this court nor did the court rely on it in ordering a remand. Frederico again misunderstands the purpose of the fee-shifting provision — to require the removing party to reimburse the opposing party for the "just costs and any actual expenses, including attorney fees, incurred as a result of the removal." 28 U.S.C. § 1447(c) (emphasis added). Before Frederico removed the case to federal court, the parties had already begun litigating the pleadings. But for Frederico's frivolous removal, Access Group would not have been required to respond to the largely duplicative pleadings filed with this court.
Bringing it all together, the court determines that Proctor's hourly rate for core legal work is $180. He is entitled to receive that rate for all of his entries, except those outlined below. He is entitled to the clerical hourly rate of $75 for filing the motion to remand on August 3, 2006, and for requesting a transcript from the Rochester District Court on August 17. He is entitled to the "non-core" hourly rate of $140 for the remainder of the work performed on August 3, for the client status call on August 22, and for all the work he performed from September 12, 2006 onward. The court accordingly finds that the lodestar for attorney fees is $3,165. The court also finds justified Access Group's request for $67.50 for the cost of providing the court with a transcript of a hearing held before the state court. The resulting total of fees and costs, $3,232.50, represents a just and reasonable award serving the purposes of § 1447(c) and no further adjustments are necessary.
Plaintiff's request for attorney fees and costs (document nos. 24 and 26) is granted with the reductions specified in this order. Defendant is ordered to pay Plaintiff the amount of $3,232.50. The clerk shall remand the case to the district court in Rochester, New Hampshire.


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A store manager and a customer were robbed by two armed men. Petitioner was tried and convicted of robbing the manager, but on retrial after reversal he was acquitted. He was then charged with robbing the customer, his motion to quash the information on double jeopardy grounds was overruled, and he was found guilty. Each jury verdict was a general one. The District Court of Appeal, after the decision in Ashe v. Swenson, 397 U.S. 436 , held as a matter of law that, while the acquittal at the second trial entitled petitioner to invoke collateral estoppel, his conviction at the first trial gave rise to a "double collateral estoppel," allowing the State to rely on the finding of the jury at the first trial that he was a participant in the robbery. The State Supreme Court denied review. Held: As stated in Ashe, supra, "mutuality" is not an ingredient of the collateral estoppel rule imposed on the States by the Fifth and Fourteenth Amendments; and unless the jury verdict in the second trial "could have [been] grounded . . . upon an issue other than that which the defendant seeks to foreclose from consideration" the double jeopardy provision vitiates petitioner's conviction.
Certiorari granted; 237 So.2d 341. vacated and remanded.
On November 9, 1966, two armed men entered a store in Jacksonville, Florida, and robbed the manager and a customer. During 1967 petitioner was tried and convicted in the state courts, after a jury trial, of the armed robbery of the manager, but the conviction was reversed on appeal because the trial judge neglected to instruct the jury on the lesser-included offense of larceny. Griffin v. State, 202 So.2d 602 (Fla. Dist. Ct. App. 1967). In 1968 petitioner was retried on the same charge and acquitted. Subsequently, he was charged with robbing the customer. His motion to quash the information on [403 U.S. 384, 385] double jeopardy grounds was overruled and a jury found petitioner guilty of armed robbery. Each of the three jury verdicts here involved was a general one. The trial court imposed a 30-year sentence and petitioner appealed to the District Court of Appeal.
Prior to the adjudication of petitioner's appeal, this Court rendered its decision in Ashe v. Swenson, 397 U.S. 436 . We there held that the principle of collateral estoppel, which "bars relitigation between the same parties of issues actually determined at a previous trial," id., at 442, is "embodied in the Fifth Amendment guarantee against double jeopardy," id., at 445, and is fully applicable to the States, by force of the Fourteenth Amendment, in light of Benton v. Maryland, 395 U.S. 784 .
"Where a previous judgment of acquittal was based upon a general verdict . . . [the rule of collateral estoppel] requires a court to `examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.'" Ashe, supra, at 444.
Here, as in Ashe, petitioner contends that his identity as one of the robbers was the sole disputed issue at each of his trials. The District Court of Appeal, however, [403 U.S. 384, 386] declined to examine the record of the second trial, but simply held instead, as a matter of law, that while petitioner's acquittal at the second trial entitled him to invoke collateral estoppel, his conviction at the first trial (where the sufficiency of the evidence was not disputed on appeal) gave rise to a "double collateral estoppel in that by application of this doctrine, appellant is estopped from contending without further proof that the State failed to prove the issue of his identity as one of the robbers on . . . the second trial inasmuch as on the first trial a jury had found above and beyond a reasonable doubt that appellant was a participant in the robbery." Simpson v. State, 237 So.2d 341, 342 (Fla. App. 1970).
The Supreme Court of Florida, by a divided vote, declined review, and petitioner filed a timely petition for a writ of certiorari with this Court. We grant the writ and we vacate the judgment.
The ground upon which the state court resolved petitioner's contention is plainly not tenable. Indeed, in Ashe itself, we specifically noted that "mutuality" was not an ingredient of the collateral estoppel rule imposed by the Fifth and Fourteenth Amendments upon the States. Ashe, supra, at 443. It is clear that Florida could not have retried petitioner a third time on the charge of robbing the store manager simply because it had previously secured a jury verdict of guilty as well as one of acquittal. And, had the second trial never occurred, the prosecutor could not, while trying the case under review, have laid the first jury verdict before the trial judge and demanded an instruction to the jury that, as a matter of law, petitioner was one of the armed robbers in the store that night. It must, therefore, be equally clear that unless the jury verdict in the second trial "could have [been] grounded . . . upon an issue other than that which the defendant seeks to foreclose [403 U.S. 384, 387] from consideration" the constitutional guarantee against being twice put in jeopardy for the same offense vitiates petitioner's conviction.
The judgment of the Florida District Court of Appeal is vacated and the case is remanded to that court for further proceedings not inconsistent with this opinion.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS joins.
The robbery of the manager and the robbery of the customer grew out of one criminal episode. I agree with the Court's disposition but, for the reasons stated in my concurring opinion in Ashe v. Swenson, 397 U.S. 436, 448 (1970), I would also hold that on the facts of this case the Double Jeopardy Clause prohibited Florida from prosecuting petitioner for the robbery of the customer.

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