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      The full handbook in alphabetical order, across every subject.

      01
      Water Rights

      Abandonment and Statutory Forfeiture of a Water Right

      A water right can be lost in two ways that are routinely confused. Abandonment is a common law doctrine requiring both nonuse and an intent to relinquish, proved by the party asserting it, with prolonged nonuse serving as evidence of intent rather than as a substitute for it. Forfeiture is statutory and operates on nonuse alone for a fixed term, commonly five years, subject to statutory excuses and to a declaration procedure with notice and a right to be heard.

      5 min readState law

      02
      Correctional Law

      Administrative and Disciplinary Segregation Compared

      Disciplinary segregation is a sanction imposed after a disciplinary finding, for a term set by the severity of the prohibited act, and it carries the full procedural protections owed at a hearing. Administrative detention is non-punitive placement pending investigation, transfer, classification or protection, and it requires only informal review with periodic reassessment. Under Sandin v. Conner a liberty interest arises where the restraint imposes atypical and significant hardship.

      6 min readFederal and state

      03
      Agricultural & Food Law

      Agritourism Statutes and the Liability They Shift

      Most states have enacted agritourism statutes limiting the liability of an operator for injury resulting from the inherent risks of an agritourism activity. The protection is conditioned on posting a warning notice in the statutory language at defined locations, and on including it in written contracts. It does not reach negligence in maintaining land or equipment, failure to warn of known dangerous conditions, willful conduct, or injury to employees.

      5 min readState law

      04
      Environmental Law

      Air Permits: Major, Minor and the Synthetic Minor Limit

      Potential to emit is maximum capacity to emit a pollutant under the physical and operational design of the source, counting only federally enforceable limits as restrictions. A source is major at one hundred tons per year of a regulated pollutant, or ten tons of a single hazardous air pollutant or twenty-five tons of a combination, with lower thresholds in nonattainment areas. A source may accept an enforceable limit to stay below a threshold and be permitted as a synthetic minor.

      6 min readFederal and state

      05
      Environmental Law

      All Appropriate Inquiries Before Buying Land

      All appropriate inquiries is the pre-acquisition investigation required for the innocent landowner, bona fide prospective purchaser and contiguous property owner protections. It must be performed by or under the supervision of an environmental professional meeting stated qualifications, must include specified inquiries and user-supplied information, must be completed within one year before acquisition, and must have five components updated within one hundred eighty days of acquisition.

      6 min readFederal and state

      06
      Government Contracts

      Allowable, Allocable and Reasonable: Three Separate Tests

      A cost is allowable only if it is reasonable, allocable, consistent with applicable accounting standards or generally accepted principles, consistent with the terms of the contract, and not limited by the cost principles themselves. Reasonableness asks what a prudent person in competitive business would incur, and no presumption favors the contractor. Allocability asks whether the cost is assignable by benefits received. Named costs fail regardless of both tests.

      6 min readFederal law

      07
      Labor Relations

      Appropriate Bargaining Units and the Community of Interest

      Section 9(b) of the National Labor Relations Act directs the Board to decide in each case the unit appropriate for collective bargaining. The test is whether the employees share a community of interest, judged by skills, functions, supervision, contact and interchange, and terms of employment. The unit need only be appropriate, not the most appropriate. Supervisors, guards paired with other employees, and several categories excluded from the definition of employee cannot be placed in a unit.

      5 min readFederal law

      08
      Immigration Sponsorship

      Benching and the Duty to Pay From the First Day

      The wage obligation begins when the sponsored worker enters into employment, and in any event no later than a fixed number of days after entry to the country or after becoming eligible to work for the employer. Nonproductive status caused by conditions related to employment, including a lack of assigned work, must be paid at the full rate stated on the application. The obligation ends only on a bona fide termination, which requires three separate acts.

      5 min readFederal law

      09
      Water Rights

      Beneficial Use, Waste and the Duty of Water

      Western codes make beneficial use the basis, the measure and the limit of a water right. A holder may divert no more than the use reasonably requires, and the allowance for irrigation is set by a duty of water expressed in volume per acre or flow per acre. Diversion beyond need, or by unreasonable means, is waste and may be curtailed. Water saved through efficiency generally returns to the stream rather than becoming the appropriator's to sell, subject to state conservation statutes.

      5 min readState law

      10
      Government Contracts

      Bid Protests: The Forums, the Deadlines and the Stay

      A disappointed offeror may protest to the agency, to the comptroller general or to the Court of Federal Claims. Solicitation defects apparent on the face of the solicitation must be raised before the time for receipt of offers. Every other ground must be raised within ten days of when it was known or should have been known. A protest filed within ten days of award, or five days after a required debriefing, suspends performance by operation of statute unless the agency overrides.

      5 min readFederal law

      11
      Healthcare Regulation

      Business Associate Agreements and Downstream Liability

      A person who creates, receives, maintains or transmits protected health information on behalf of a covered entity for a regulated function is a business associate, and so is any subcontractor doing the same for that associate. A written agreement containing specified terms is the condition on which the disclosure is permitted. Business associates are directly liable for defined obligations, and a covered entity that knows of a pattern of material breach and does nothing is itself in violation.

      6 min readFederal and state

      12
      Immigration Sponsorship

      Business Necessity for Requirements Above the Normal Minimum

      The requirements for a sponsored position must be those normally required for the occupation and must not exceed the preparation the occupational classification assigns. Where they do, the employer must document that the requirement bears a reasonable relationship to the occupation in the context of its own business and is essential to performing the duties in a reasonable manner. Separate tests govern foreign language demands and experience gained with the sponsor.

      5 min readFederal law