Rags Over the Arkansas River, Inc. v. Colorado Parks & Wildlife Board

JUDGE DAILEY,

specially concurring.

(73 I concur in the judgment but on grounds different from those relied on by the majority.

74 The majority upholds the Board's action, 1 concluding that, although the Board erred in approving the Project via a cooperative agreement, its error was harmless. Unlike the majority, I would hold that the Board did not err in the first place.

T75 As the Board admits, the Project qualified as a special activity within the meaning of the special activities regulation, see Dep't of Natural Res., 2 Code Colo. Regs. 405-1:101(a) & 405-7:708(1). But, as the Board and intervenors contend, the Project also qualified as a "program" which the Board was legislatively authorized to approve via a cooperative agreement. See Ch. 245, see. 2, § 838-10-107(1)(d), 1984 Colo. Sess. Laws 885 (empowering the Board to "[elnter into cooperative agreements with state and other agencies, educational institutions, municipalities, political subdivisions, corporations, clubs, landowners, associations, and individuals for the development and promotion of parks and outdoor recreation programs"). 2

{76 Although the Project falls within the terms of both the statute and the special activities regulation, the majority holds that the Board lacked the authority to approve the Project via the statutory route, that is, by cooperative agreement,. This follows, the majority says, because by using the term "shall" in the special activities regulation, the - Board limited the manner in which the Project could be approved to that of obtaining a special activities permit from either a park manager or regional manager. See 2 Code Colo. Regs. 405-7:708(5). 3 Under this view, through its regulation, the Board divested itself of any authority with respect to whether (and if so, how) a project of this magnitude and complexity would be conducted within the confines of the AHRA. This does not make sense to me.

T77 Initially, I note that "[the same rules of construction used to interpret a statute should be applied to interpret a rule or regulation." People in the Interest of M.K.D.A.L., 2014 COA 148 , ¶ 5, - P.3d - (internal quotation marks omitted).

178 As I understand the majority's opinion, it rests upon an application of the "plain meaning" rule of statutory interpretation: the word "shall" must be given its ordinary mandatory or imperative meaning. See Riley v. People, 104 P.3d 218, 221 (Colo.2004) ("There is a presumption that the word 'shall when used in a statute is mandatory.").

T 79 But the word "shall" does not inevitably carry with it a mandatory meaning. Estate of Guido v. Exempla, Inc., 2012 COA 48, ¶ 25 , 292 P.3d 996 ("[The term "shall" is usually interpreted to make the provision in which it is contained mandatory.") (emphasis added); see Nw. Natural Gas Co. v. Clark Cnty., 98 Wash.2d 739 , 658 P.2d 669, 671 (1983) ("The word 'shalF need not always be construed as mandatory."); see also Hunt v. Heaton, 631 S.W.2d 549, 550 (Tex.App.1982) ("Although the word 'shall is generally construed to be mandatory, it may be ... held to be directory. In addition, a statute may be mandatory in some respects and directory in others." (citation omitted)), aff'd, 643 S.W.2d 677 (Tex.1982).

80 The use of the term "shall," then, "is not the sole determinant, and what it naturally connotes can be overcome by other considerations." 3 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 57:8, at 18 (7th ed. 2008).

*200 1 81 "Whether a particular statute is mandatory or directory does not depend upon its form, but upon the intention of the Legislature, to be ascertained from a consideration of the entire act, its nature, its object, and the consequen[ecles that would result from construing it one way or the other." In re McQuiston's Adoption, 238 Pa. 304 , 86 A. 205, 206 (1913) (internal quotation marks omitted); see Singer & Singer, § 57:2 (same).

182 Courts do not "follow a literal interpretation leading to an illogical or absurd result." Garcia v. Medved Chevrolet, Inc., 240 P.3d 371, 374 (Colo.App.2009); see Frazier v. People, 90 P.3d 807, 811 (Colo.2004) ("A statutory interpretation leading to an illogical or absurd result will not be followed."); In re N.B., 199 P.3d 16, 18 (Colo.App.2007) ("If the statutory language is clear, [courts] apply the plain and ordinary meaning, unless the result would be absurd or unreasonable.").

€ 83 "Courts must read statutes with common sense in order to accomplish a reasonable result." Singer & Singer, § 57:3, at 19-21; see In re City of Harrisburg, 465 B.R. 744 , 761 n.12 (Bkrtey.M.D.Pa.2011) ("Common sense should be used when reading the statute to obtain the result intended."). "Legislative intent can ... be inferred on grounds of policy and reasonableness." Singer & Singer, § 57:8, at 81.

¶ 84 It is not, in my view, reasonable to interpret the special activities regulation in a manner that divests the Board of authority to determine whether, and, if so, how, a matter of the Project's magnitude and complexity could be conducted in the AHRA. The statutes governing the Board, Ch. 245, sec. 2, §§ 33-10-101 to -115, 1984 Colo. Sess. Laws 878 -88, established it as the ageney with ultimate responsibility and authority over the management of state parks and recreation areas and the development and implementation of park and outdoor recreation programs. Delegation to a park or regional manager of decisions whether to conduct routine, short-term events such as weddings, memorial services, family reunions, film shoots, bike races, fishing and boating competitions, and rescue trainings, makes sense; delegating to those individuals the responsibility for determining whether, and, if so, . how, an activity of the Project's magnitude should be conducted does not, The latter-described responsibility appears to lie at the very core of the Board's statutory functions, and, in my view, it is highly unlikely that the Board intended, through the language it used in the special activities regulation, to divest itself totally of this responsibility.

85 Because I perceive that the majority's interpretation of the special activities regulation leads to an illogical or absurd result, 4 I do not join it. Instead, I would interpret the special activities regulation as requiring a project proponent to file a permit application to begin an approval process but not as establishing the mandatory or exclusive procedure for authorizing project activities at state parks or recreation areas.

¶ 86 I agree with the majority that

e substantial evidence supports the Board's decision to approve the Project; and,

e the Board did not err by conditioning its approval on the contents of a pending final Environmental Impact Statement.

T 87 In my view, the Board had the authority to approve the Project via a cooperative agreement, and the Board did not abuse its discretion in approving the Project in this manner. Consequently, I would affirm the Board's decision, albeit on grounds different from those upon which the majority relies.

. The Board exercised authority over the Parks Division. See Ch. 245, sec. 2, § 33-10-104(1), 1984 Colo. Sess. Laws 881 (''The division shall be under the jurisdiction of the board.").

. Ordinarily, words and phrases found in a statute are to be construed according to their familiar and generally accepted meaning. See In re F.A.G., 148 P.3d 375, 377 (Colo.App.2006). In 66 ordinary usage, the term program" means "a proposed project or scheme." . Webster's Third New International Dictionary 1812 (2002).

. The park or regional manager's denial (but not grant) of a permit is subject to further review, - but only by the Parks Division director.

. At one point in its opinion, the majority states that "neither the Parks Division nor the Board ever concluded the regulation did not apply or that its application was absurd or illogical." The Board never contemplated, however, that the regulation would be applied to divest it of authority to act.