Brigance v Vail Summit Resorts, Inc.

Brigance appealed the dismissal of some and summary judgment on her remaining claims arising from breaking her leg during a ski lesson. The panel affirmed. It held the waivers signed by Brigance and on a lift ticket purchased by her husband were enforceable under Colorado law as ski lessons are not services to the public or practical necessities, buying ski lessons is not a situation where Colorado court would find disparity of bargaining power and the language of the waivers was clear, short and written in common language without legal jargon and similar language was found clear by the Colorado supreme Court. It held that the statutes on tramways and ski reports cited by Brigance did not change the outcome as neither bar broad liability waivers like those involved here.

The Anderson Living trust et al. v Energen Resources Corporation

Anderson and other landowners sued Energen for oil and gas royalties and the district court granted judgment to Energen on all claims. The panel affirmed as to some claims and reversed as to others. It held the royalty claims based on New Mexico natural gas extraction were properly rejected as circuit precedent has rejected the marketable condition doctrine and the neither the New Mexico Supreme Court or legislature have seen fit to impose it and thus Energen properly deducted certain marketing costs before calculating royalties. It held judgment for Energen on a New Mexico tax issue was correct as the statute did not bar Energen from deducting the tax form the royalties owed. As claims for royalties on gas used by third party processors, the panel affirmed as to Anderson and lessor Pritchet as the free use clauses in their lease which are best read to exclude royalties on gas used to further the economic activities of the leasehold as occurred here; reversed as to lessor N-R Trust as its lease requires royalties on all gas produced and remand to  calculate the royalties was necessary; and reversed as to Colorado Lessor Tatum as the lease barred deduction of prost-production expenses and limited the free use clause to gas stored on site and the royalty provision requires royalties for gas sued by third party processors off site. It finally reversed as a claim for N-R for interest on funds placed in a segregated account during a quiet title dispute as New Mexico law requires payment of interest in those circumstances an Energen failed to do so.

In Re: Cox Enterprises, Inc. Set-Top Cable Television Box Antitrust Litigation (Healy v Cox Communications, Inc.)

Healy appealed the district court’s entry of judgment notwithstanding the verdict in his tying based antitrust suit. The panel, 2-1, affirmed. The majority held that under United states supreme Court, circuit and her circuit precedent on tying arrangements, Healy bore the burden to prove the requirement that he rent a box top set to access premium cable offerings had the substantial potential to foreclose completion. It held the jury instruction accurately stated the burden to prove the tie foreclosed a substantial amount of competition by other sellers or potential sellers and the dolor amount portion of the instruction did not relieve Healy of that burden. It held the evidence offered by Healy failed to demonstrate foreclosure as Cox was an intermediary between manufactures and the cable customer, the fact that Cox has no rivals for the set top boxes does not prove foreclosure, all cable companies rent set top boxes to customers and this suggests efficiency is the reason for the tie and the other technologies identified by Healy failed to displace set top boxes for reasons unrelated to tying arrangements and the Federal Communications Commission regulate set top boxes precluding harm to competition. Briscoe dissented arguing that tying arrangements are illegal per se, the set top box and premium cable services are separate products and that Cox had substantial market power in the Oklahoma City cable market and thus the evidence was sufficient to sustain the verdict.

State of New Mexico v Department of the Interior and Pueblo of Pojoaque

Department appealed summary judgment to State ruling the regulations in 25 CFR Part 291 are invalid. The panel affirmed. It held State has standing to challenge the regulations because 291 stripped it of procedural protection found in 25 USC 2710 namely the right to judicial determination that it failed to negotiate in good faith before Department can become involved and 291 forces State to participate in the procedures outlined even though State believes them to be unlawful. It held the case was ripe because the issues involved were purely legal, 291 has gone through the promulgation process and thus department’s action is a final action and the forced choice makes injury imminent and deciding the case will assist the administration of tribal state gaming process. It held that Congress has set out a detailed scheme in 25 USC 2710 to control when Department can use regulatory authority to approve tribal gaming when a state fails to negotiate in good faith and thus there is no gap or ambiguity to fill and 291 thus fails as it attempts to intervene before a judicial finding of bad faith and mandates granting tribal gaming which is contrary to the language of 2710 and if legislative history can be consulted it supports the conclusion that sometime tribes will not be allowed to operate gaming establishments. It held that Pojoaque’s invalidation argument was properly before the panel as sate did not object to the issue being raised at summary judgment and in fact actively engaged the issue in its briefing. It held that the Indian Gaming Regulatory Act has a severability clause and that  Congress would have passed the Act without the provision allowing involuntary suit against states as the rest of that statute can operate if a state waives sovereign immunity, does not raise the defense during litigation or if the United States sues as trustee and thus, while a close case, the involuntary suit provision is severable and the panel declined to strike down the rest of the Indian Gaming Regulatory Act.

Green as Trustee of David and Barbara Green 1993 Dynasty Trust v United States

The government appealed the judgment in favor of Green arguing the district courted erred in setting the value of a charitable deduction at the market value of the land donated instead of the Trust’s basis in the property. The panela greed and reversed. It held under 26 USC 642(c)(1), the phrase “any amount of gross income” which limits the amount of a charitable deduction is ambiguous as it can be interpreted in at least four ways, that the Internal Revenue Service reasonably interpreted the phrase to mean gross income from any taxable year, this still does not identify what gross income is for real property donated for charitable purposes, but, the Service’s position in litigation that the phrase limits the deduction to the amount of gross income spent on the real property which is the adjusted basis in the property and this position best aligns with the tax code as awhile including the treatment of gains in real estate only being recognized as income when sold or exchanged and thus the deduction here must be limited to the adjusted basis and no refund is due Trust. It also held that Green’s argument based on 26 USC 512(b)(11) was not raised in the refund claim and is thus barred under the Code and implementing regulations and additionally was waived as it was not raised in the district court.