Petition for Writ of Certiorari — Monaghan Farms, Inc., Petitioner v. City and County of Denver, Colorado

Supreme Court briefOct 30, 2024

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No. ________

IN THE

Supreme Court of the United States

Monaghan Farms, Inc.

Petitioner,

City and County of Denver, Colorado

Respondent.

_______

On Petition for a Writ of Certiorari to the

Colorado Court of Appeals

_______

PETITION FOR A WRIT OF CERTIORARI

MICHAEL M. BERGER*

*Counsel of Record

MANATT, PHELPS & PHILLIPS

2049 Century Park East,

Suite 1700

Los Angeles, CA 90067

(310) 312-4000

mmberger@manatt.com

MICHAEL R. MCCORMICK

MONTGOMERY LITTLE &

SORAN, PC

5445 DTC Parkway,

Suite 800

Greenwood Village, CO

80111

(303) 773-8100

mmccormick@

montgomerylittle.com

Counsel for Petitioners

Counsel continued on next page.

ROBERT R. DUNCAN

THE LAW OFFICE OF ROBERT R. DUNCAN

1960 Forest Parkway

Denver, CO 80220

(303) 669-0932

rduncan@rrd-llc.com

QUESTIONS PRESENTED

The City and County of Denver condemned

8,360 acres of land from Petitioner Monaghan

Farms as part of its land acquisition for the

creation of the Denver International Airport,

including a large area surrounding the facility to

serve as an environmental buffer and safety zone.

Thirty-four years later, Denver decided to use

approximately half that land (which had not been

used for airport purposes) for commercial nonaeronautical developments. But the power of

eminent domain may only be used to take property

for public use.

The Colorado courts exacerbated the situation

by assuming that conversion to private,

commercial, non-aeronautical use was an “airport

purpose” as a matter of law, expressly refusing to

permit discovery to ascertain the truth or accuracy

of that assumption, and then deciding the case as a

matter of law without a trial.

Question 1: Is it an appropriate application of

Kelo v. City of New London, 545 U.S. 469 (2005) to

take property for public use (in the sense of actual

use by the public) and then later decide to devote

that property to private commercial use without

reconsidering the constitutional public use

requirement?

Question 2: When property has been taken by

eminent domain for a specific public use (construct

and operate an airport), may that property later be

devoted to a wholly different, commercial, nonaeronautical development that abandons the prior

public use?

Question 3: Does this Court’s recent decision

in Loper Bright (2024) call for re-examining the

duty of the judiciary to exercise independent

judgment in deciding public use under Kelo?

Question 4: When a court decides a case based

on a “legal” determination of a central “fact” while

denying either discovery or trial on the merits, has

it denied due process of law?

Question 5: Does it satisfy the Fifth

Amendment’s requirements for exercising eminent

domain (incorporated through the Fourteenth

Amendment against the states) for the sovereign to

seize land in fee simple absolute when (1) the

condemnation petition did not explicitly seek fee

simple absolute title, (2) the condemnor did not pay

full fair market value for the fee simple absolute

rights to the property that was taken, (3) the

property was not used for its intended public

purpose, and (4) the property was later devoted to

private use?

iii

CORPORATE DISCLOSURE STATEMENT

Petitioner Monaghan Farms, Inc. is a private

corporation. It has no parent corporation, and no

publicly held company owns 10 percent or more of

its stock.

PARTIES TO THE PROCEEDING

Petitioner Monaghan Farms, Inc. is a Colorado

corporation with its principal place of business in

Colorado.

Respondent City and County of Denver is a

Colorado home rule city. Its Department of

Aviation owns and operates Denver International

Airport.

STATEMENT OF RELATED PROCEEDINGS

City and County of Denver v. Monaghan Farms,

Case No.: 2021CV33498 (Denver District Court);

Judgment entered May 17, 2022.

City and County of Denver v. Monaghan Farms,

Case no. 22CA0956 (Colorado Court of Appeals)

decided June 29, 2023.

City and County of Denver v. Monaghan Farms,

Case no. 2023SC580 (Colorado Supreme Court)

order filed Aug. 5, 2024.

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI ............. 1

INTRODUCTION ................................................... 1

OPINIONS BELOW................................................ 2

JURISDICTION ...................................................... 2

CONSTITUTIONAL PROVISIONS

INVOLVED................................................... 3

STATEMENT OF THE CASE ................................ 3

Monaghan Farms owned a large

farm in rural Colorado ...................... 3

Denver decides to create a

mammoth new airport ....................... 4

Denver decides it has more land

than it needs for airport use.............. 5

The Trial Court Grants

Summary Judgment to Denver ......... 6

Appellate Proceedings ....................... 7

ARGUMENT ........................................................... 7

It Is Time To Reexamine The Breadth

Of The Kelo “Public Use”

Determination. This Context Provides

An Appropriate Platform To Begin

That Process ................................................. 7

The Kelo Underpinning ..................... 7

The Beistline Diversion ................... 11

TABLE OF CONTENTS

(continued)

Page

II.

When The Government Condemns Far

More Land Than It Needs For Its

Public Project, The Constitutional

Rights Of The Underlying Property

Owner Should Require That Any

Remainder Be Returned Or Paid For,

Rather Than Enriching The

Government For Converting It To

Private Commercial Use ............................ 16

The Property Owner’s Interests

Should be Paramount Under

the Constitution ............................... 17

When The Government’s

Interests Are Financial, Its

Actions Must Be Viewed With

Skepticism........................................ 20

III.

This Court’s Recent Decision in Loper

Bright (2024) Calls For Re-Examining

The Duty Of The Judiciary To

Exercise Independent Judgment In

Deciding Public Use Under Kelo................ 21

IV.

Where A Disputed Fact Is At The Core

Of A Litigation, It Is Not Proper To

Decide It As A Matter Of “Law” ................ 24

The General Rule ............................. 24

vii

TABLE OF CONTENTS

(continued)

Page

Converting Land Condemned

To Create Environmental

Buffers And Safety Zones Into

Profit Making Private Ventures

Cannot Be Assumed To Be A

“Public Use” ..................................... 25

It Violates the Fifth Amendment

Protection of Property Owners in

Eminent Domain to Grant the

Government Fee Simple Absolute

Title Where (1) the Condemnation

Petition Never Explicitly Sought Fee

Simple Absolute Title, (2) the

Condemnor Did Not Pay Full Fair

Market Value For the Fee Simple

Absolute Rights to the Property,

(3) the Property Was Not Used For Its

Specified Public Purpose, And (4) the

Property Was Later Devoted to

Private Use ................................................. 27

CONCLUSION ...................................................... 29

viii

TABLE OF APPENDICES

Appendix A — Opinion of the Colorado Court of

Appeals, City and County of Denver

v. Monaghan Farms, Inc., 536 P.3d

825 (Colo. App. 2023)……App p. 1a

Appendix B — Judgment of the Colorado District

(Court

Case

No.:

2021CV33498) (May 17, 2022)

………………….…………App p. 17a

Appendix C — Order of the Colorado District

Court granting summary judgment

(Case Number: 21CV33498) (Apr.

27, 2022)……………........App p. 72a

Appendix D — Order of the Colorado Supreme

Court denying review, S271083

(Aug. 5, 2024)..................App p. 88a

Appendix E — Denver’s Map of Core Aviation

Operational Land v. Commercially

Developable Land…........App p. 90a

TABLE OF AUTHORITIES

Page

CASES

Adickes v. S.H. Kress & Co.,

398 U.S. 144 (1970)........................................... 25

Alemany v. Comm’r of Transp.,

576 A.2d 503 (Conn. 1990) ............................... 18

Beistline v. City of San Diego,

256 F.2d 421 (9th Cir. 1958) ..... 11, 12, 13, 14, 15

Berman v. Parker,

348 U.S. 26 (1954)............................................. 11

Board of Trustees v. Shapiro,

799 N.E.2d 383 (Ill. App. 2003) ........................ 14

Canova v. Shell Pipeline Co.,

290 F.3d 753 (5th Cir. 2002) ............................ 18

Chicago, B. & Q.R. Co. v. City of Chicago,

166 U.S. 226 (1897)........................................... 20

City and County of Denver v. Monaghan

Farms, Inc.,

536 P.3d 825 (Colo. App. 2023). (App. p.

1a) ........................................................................ 2

City of Cincinnati v. Vester,

281 U.S. 439 (1930)........................................... 23

City of Inglewood v. City of Los Angeles,

451 F.2d 948 (9th Cir. 1972) .............................. 4

City of Oakland v. Oakland Raiders,

220 Cal.Rptr. 153 (Cal. App. 1985) .................. 12

TABLE OF AUTHORITIES

(continued)

Page

City of Romulus v. County of Wayne,

634 F.2d 347 (6th Cir. 1980) .............................. 4

Dean v. Board of County Sup'rs,

708 S.E.2d 830 (Va. 2011) ................................ 14

Dupree v. Younger,

598 U.S. 729 (2023)........................................... 24

Egaas v. Columbia County,

673 P.2d 1372 (Or. App. 1983) ......................... 18

Eychaner v. City of Chicago,

141 S. Ct. 2422 (2021)......................................... 9

First English Evangelical Lutheran Church

v. County of Los Angeles,

482 U.S. 304 (1987)........................................... 20

General Hospital Corp. v. Massachusetts Bay

Transp. Authority,

672 N.E.2d 521 (Mass. 1996)............................ 18

Harrington v. Vermont Agency of Transp.,

971 A.2d 658 (Vt. 2009) .................................... 14

Hawaiian Gas Prod. v. Comm'r of Internal

Revenue,

126 F.2d 4 (9th Cir. 1942) ................................ 13

Isley v. Bogart,

338 F.2d 33 (10th Cir. 1964) ............................ 18

Johnson v. Preston,

203 N.E.2d 505 (Ohio App. 1963) ..................... 18

TABLE OF AUTHORITIES

(continued)

Page

Jones v. Oklahoma City,

137 P.2d 233 (Okla. 1941) ................................ 18

Joslin Mfg. Co. v. City of Providence,

262 U.S. 668 (1923)........................................... 20

Karsik v. State of Israel,

55(2) PD 625 (2001) .....................................17, 20

Kelo v. City of New London,

545 U.S. 469 (2005)…1, 7, 8, 9, 11, 15, 16, 17, 21,

22, 23

Knick v. Township of Scott,

588 U.S. 180 (2019)........................................... 29

Loper Bright Enterprises v. Raimondo,

144 S.Ct. 2244 (2024).............................21, 22, 23

Maryland Plaza Redev. Corp. v. Greenberg,

594 S.W.2d 284 (Mo. App. 1979) ...................... 12

McMechan v. Board of Education,

105 N.E.2d 270 (Ohio 1952) ............................. 18

Miles v. Dawson,

830 S.W.2d 368 (Ky. 1991) ............................... 12

Mills v. Rogers,

457 U.S. 291 (1982)........................................... 20

PennEast Pipeline Co., LLC v. New Jersey,

594 U.S. 482 (2021)........................................... 13

Pinczkowski v. Milwaukee County,

687 N.W.2d 791 (Wis. App. 2004) .................... 14

xii

TABLE OF AUTHORITIES

(continued)

Page

Pullman-Standard v. Swint,

456 U.S. 273 (1982)........................................... 24

Reichelderfer v. Quinn,

287 U.S. 315 (1932)........................................... 14

Spears v. Kansas City Power & Light Co.,

455 P.2d 496 (Kan. 1969) ................................. 19

Spinks v. City of Los Angeles,

220 Cal. 366 (1936) ......................................14, 15

Superior Oil Co. v. Harsh,

39 F. Supp. 467 (E.D. Ill. 1941), aff’d, 126

F.2d 572 (7th Cir. 1942) ................................... 18

Tolan v. Cotton,

572 U.S. 650 (2014)........................................... 25

Town of Morganton v. Hutton & Bourbonnais

Co.,

112 S.E.2d 111 (N.C. 1960) .............................. 18

Township of West Orange v. 769 Assoc., LLC,

969 A.2d 1080 (N.J. 2009) ................................ 12

United States Trust Co. v. New Jersey,

431 U.S. 1 (1977)..........................................20, 26

United States v. Burmeister,

172 F.2d 478 (10th Cir. 1949)........................... 19

United States v. Cors,

337 U.S. 325 (1949)........................................... 21

United States v. Good Real Property,

510 U.S. 43 (1993)............................................. 21

xiii

TABLE OF AUTHORITIES

(continued)

Page

United States v. Winstar Corp.,

518 U.S. 839 (1996)........................................... 21

VanHorne’s Lessee v. Dorrance,

2 U.S. 304 (1795)............................................... 28

Warm Springs Irr. Dist. v. Pacific Live Stock

Co.,

270 F. 560 (9th Cir. 1921)................................. 18

West Virginia v. Environmental Protection

Agency,

597 U.S. 697 (2022)........................................... 22

Winger v. Aires,

89 A.2d 521 (Pa. 1952) ...................................... 12

CONSTITUTION

U.S. Const. amend. V ...... 3, 13, 18, 20, 21, 22, 27, 29

U.S. Const. amend. XIV ........................................... 3

STATUTES

26 U.S.C. § 1033 ..................................................... 14

28 U.S.C. § 1257(a)................................................... 2

OTHER AUTHORITIES

Amar, Akhil Reed, Philadelphia Revisited:

Amending the Constitution Outside

Article V, 55 U. Chi. L. Rev. 1043, 1100

(1988) ................................................................. 20

Berger, Michael M., Nobody Loves An

Airport, 43 So. Calif. L. Rev. 631 (1970) ............ 4

xiv

TABLE OF AUTHORITIES

(continued)

Page

Cooney, Kevin L., A Profit For the Taking:

Sale of Condemned Property After

Abandonment of the Proposed Public Use,

74 Wash. U.L.Q. 751 (1996) ...................... …

Kanner, Gideon, Kelo v. New London: Bad

Law, Bad Policy, and Bad Judgment, 38

Urb. Law. 201 (2006) ...............................8, 10, 17

Kanner, Gideon, We Don’t Have To Follow

Any Stinkin’ Planning – Sorry About

That, Justice Stevens, 39 Urb. Law. 529,

548 (2007) .....................................................12, 22

Danielle Marx, Takings and the Requirement

of Ongoing Public Purpose, 36 Isr. L. Rev.

151 (2002) .......................................................... 17

Sandefur, Timothy, The Backlash So Far:

Will Americans Get Meaningful Eminent

Domain Reform? 2006 Mich. St. L. Rev.

709 (2006) ............................................................ 8

Stevens, Justice John Paul, Judicial

Predilections, 6 Nev. L.J. 1 (2005) ..................... 7

Stevens, Justice John Paul, Kelo, Popularity,

and Substantive Due Process, 63 Ala. L.

Rev. 941, 941 (2012) ........................................... 7

PETITION FOR WRIT OF CERTIORARI

Monaghan Farms seeks a writ of certiorari to

review a decision of the Colorado Court of Appeals,

Division III.

INTRODUCTION

Because of its breadth, Kelo v. City of New

London, 545 U.S. 469 (2005) is allowing lower

courts to develop aberrations in the law. This Court

needs to provide some guardrails. This case

provides a useful place to start.

Kelo, of course, allowed the condemnation of

private property for transfer to a different private

entity (“from A to B” in the Court’s words) as long

as the condemning agency believed that the taking

was for a “public purpose.” The question here is

what happens if the initial use described in the

condemnation petition is adequate to describe a

public purpose—indeed, an actual public use—but

the government fails to make that use and instead

(years later) decides to devote the property to a

purely private, profit-making use?

The true key to this case is whether the use that

Denver now wants to make of the property that it

forcibly took from Monaghan Farms is in fact a

public use. Should the issue of whether the wholly

different use serves a public purpose or use be

addressed anew? Is the use that Denver now wants

to make of the property that it forcibly took from

Monaghan Farms via eminent domain a public use?

If, in fact, it serves no such public purpose, should

the property not be returned to the original owner

or paid for? At least, should the original owner not

be compensated for the usurpation of private

development rights by the government?

Put another way, the power of eminent domain

was not designed as a tool for government agencies

to attempt to wrest property from private parties in

order to start their own profitable businesses or to

turn the property over to some favored private

parties who will make a profit and reward the

condemnor with an increased tax pool. Yet that is

the upshot of the decision below. If not overturned

by this Court, the way will be paved for

government agencies to subvert power that they

possess only by virtue of being the government—

power that is supposed to be used to advance the

public weal—to enrich themselves or their friends.

The Constitution should rebel at the thought. This

Court needs to set the situation aright.

OPINIONS BELOW

The Colorado Court of Appeals issued its

opinion on June 29, 2023, published as City and

County of Denver v. Monaghan Farms, Inc., 536

P.3d 825 (Colo. App. 2023). (App. p. 1a) A timely

petition to the Colorado Supreme Court was denied

without opinion on Aug. 5, 2024. (App. p. 17a)

JURISDICTION

The Colorado Supreme Court declined to

exercise its discretionary review on August 5, 2024.

This Court has jurisdiction under 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides: “... nor shall private property

be taken for public use, without just compensation.”

The Fourteenth Amendment to the United

States Constitution provides: “No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.”

STATEMENT OF THE CASE

Monaghan Farms owned a large farm in

rural Colorado.

Monaghan Farms, Inc. owned approximately

9,600 acres of land east of the Denver metro area in

rural Colorado. Monaghan Farms used its property

for wheat farming and oil and natural gas

production. The property was improved with a few

buildings including a headquarters, elevator and

grain storage, and residences.

Monaghan Farms had its own vision for .the

eventual use of its property. In the mid-1980s,

Monaghan Farms was on the verge of developing

its property with a master planned residential and

mixed-use

commercial

development.

After

assembling 9,600 acres of land, it spent hundreds of

thousands of dollars working with a design

consultant to devise plans for a large, integrated

project incorporating industrial, commercial,

institutional, and residential uses. Eventually, they

developed a master plan for integrated

development to serve the projected needs of the

greater Denver area as well as a plan for marketing

the properties.

Denver decides to create a mammoth

new airport.

In the 1980s, Denver began planning for a new

international airport to replace its aging Stapleton

International Airport. One of the problems with the

old airport was its close proximity to inhabited

areas of Denver. Thus, in planning for its new

airport, Denver chose a spot far out in generally

uninhabited country. Denver consciously planned

to avoid some of the environmental issues that

plagued other airports (including its own

Stapleton).1

Ironically, the changed use that Denver now

seeks to make of the land condemned from

Monaghan Farms would include erection of

massive office buildings and other dense

commercial uses that would subject the occupants

to the environmental and safety ills that the

original remote location of the new airport was

1 For background discussion, see Michael M. Berger, Nobody

Loves An Airport, 43 So. Calif. L. Rev. 631 (1970). Litigation

dealing with adverse environmental impacts of airport

operations has occupied significant judicial time. This even

included suits brought by neighboring municipalities dealing

with promises made by airport operators to the FAA in

exchange for federal money for infrastructure construction.

See, e.g., City of Inglewood v. City of Los Angeles, 451 F.2d 948

(9th Cir. 1972); City of Romulus v. County of Wayne, 634 F.2d

347 (6th Cir. 1980).

designed to avoid—not to mention the hazard of

putting tall buildings in the vicinity of large

aircraft landing and taking off.

Denver decides it has more land than it

needs for airport use.

In acquiring land for its new airport, Denver

took so much property that its land area makes it

the second largest airport on earth, ranking behind

only King Fahd International Airport in Saudi

Arabia. The new Denver airport covers an area of

34,000 acres (some 52.4 square miles), which is

nearly twice the size of Manhattan. (See App. p.

90a)

So, 34 years after it condemned the property

from Monaghan Farms to construct and operate an

airport, Denver decided to take about half of the

airport (16,000 acres it had not used for airport

purposes) and convert it into private commercial,

profit-making space. In Denver’s own words, this

was for “commercial non-aeronautical land use

development.”2

Monaghan Farms protested. It did so in writing,

complaining that its property had been forcibly

taken by eminent domain to build an airport and as

an environmental buffer to protect surrounding

uses as well as a runway safety zone. Assuming

arguendo that may have been the contemplated use

The airport layout is depicted on the diagram attached as

App. E, p. 90a. The green area, which had initially been

planned as an environmental and safety buffer is now devoted

to dense commercial use.

at the time, it is no longer. What may have once

been a legitimate public use condemnation became

something else entirely. Monaghan Farms asked

that the property be used for construction of an

airport, as originally specified in the condemnation

petition, or that the unneeded property (or its

value) be returned or paid for.

The Trial Court Grants Summary

Judgment to Denver.

Denver filed suit, seeking to quiet its title in

light of Monaghan Farms’s protest. It urged that,

(1) regardless of its current plans, the title it

condemned was full fee simple absolute title;

(2) Monaghan Farms was barred from asserting

that it has any reversionary interest in the

property because of Denver’s abandonment of

airport use and conversion to private, commercial,

non-aeronautical use; and (3) that it was not

required to devote the property to airport use

forever and, in any event, leasing the property for

private use would provide funds to lower the

operating costs for airlines using the airport, thus

qualifying it as “airport use.”

The trial court refused to allow discovery on the

issue of public airport use, although Denver

presented extensive testimony aimed at proving the

non-sequitur that non-aeronautical use is, in fact,

aeronautical use. The trial court then entered

summary judgment for Denver on the title issue.

(App. p. 72a)

Appellate Proceedings.

The Court of Appeals affirmed. In so doing, that

court held that the question of whether the newly

proposed use is a “public” use, or whether the issue

of “public” use must be addressed anew when the

proposed use changes was not relevant and thus

was not analyzed. Thus, the appellate court

concluded that the issue of whether the “public” use

claimed at the time of property condemnation

needs to continue into the future was an issue of

law and irrelevant to the question of the interest

Denver initially condemned. (App. p. 1a)

The Colorado Supreme Court declined to review

the matter. (App. p. 17a)

ARGUMENT

It Is Time To Reexamine The Breadth Of

The Kelo “Public Use” Determination.

This Context Provides An Appropriate

Platform To Begin That Process.

The Kelo Underpinning.

Much has happened since this Court decided

Kelo nearly 20 years ago. Among other things, the

author of that opinion has publicly called it “the

most unpopular opinion that [he] wrote during” his

entire tenure on the Court (Justice John Paul

Stevens (Ret.), Kelo, Popularity, and Substantive

Due Process, 63 Ala. L. Rev. 941, 941 (2012))—and

he suggested that he might like to take a

“mulligan” (Justice John Paul Stevens, Judicial

Predilections, 6 Nev. L.J. 1 (2005)).

Indeed, not only was it Justice Stevens’ least

popular opinion, it may well be one of the Court’s

least popular opinions.3 It was met almost

immediately with a firestorm of protest in state

legislatures

which

enacted

statutes

and

constitutional amendments to ensure that the

broad definition of “public use” appearing in Kelo

was not part of their state’s constitutional

jurisprudence. (See, as illustrative of the

numerous—and immediate—critiques of Kelo,

Timothy Sandefur, The Backlash So Far: Will

Americans Get Meaningful Eminent Domain

Reform? 2006 Mich. St. L. Rev. 709 (2006); Gideon

Kanner, Kelo v. New London: Bad Law, Bad Policy,

and Bad Judgment, 38 Urb. Law. 201 (2006)

(Kanner, Bad Law).)

But the Court need not look solely to legal

commentaries or state legislative responses to

understand the consternation generated by the

issues raised by Kelo and the urge to reform (or, at

least, constrain) its holding. In dissenting from a

recent denial of certiorari, Justice Thomas, joined

by Justice Gorsuch, urged the Court to look for

opportunities to reexamine the bases of Kelo:

“First, this petition provides us the

opportunity to correct the mistake the

Court made in Kelo. There, the Court found

the Fifth Amendment's ‘public use’

requirement satisfied when a city

transferred land from one private owner to

another in the name of economic

Justice Stevens charitably referred to his Kelo opinion as

“much criticized.” (6 Nev. L.J. at 3.)

development. That decision was wrong the

day it was decided. And it remains wrong

today. ‘Public use’ means something more

than any conceivable ‘public purpose.’ …

Taking land from one private party to give

to another rarely will be for ‘public use.’

The majority in Kelo strayed from the

Constitution to diminish the right to be

free from private takings.

“Second, even accepting Kelo as good law,

this petition allows us to clarify the Public

Use Clause and its remaining limits. Kelo

weakened the public-use requirement but

did not abolish it.… This Court should not

stand by as lower courts further dismantle

constitutional safeguards.” Eychaner v. City

of Chicago, 141 S. Ct. 2422, 2423 (2021)

(dissenting opinion) (cleaned up).

This case presents a variant of Kelo and an

opportunity to place some guardrails around it.

Here, although the condemnor recited a legitimate

sounding—indeed, actual—public use at the time it

filed suit to condemn the subject property, it later

had a change of municipal heart and decided to

devote about half of this substantial, multithousand acre taking to purely private, profitmaking, non-aeronautical commercial uses.

Kelo, as this Court is aware, held that the

constitutional term “public use” could be equated

with the concept of “public purpose,” thus greatly

broadening the potential use of that concept. As the

Court also knows, that holding came in for

substantial criticism, and even alarm from almost

every state legislature. As one scholar put it, the

decision engaged in “overreaching semantic

gymnastics,”

suggesting

that

the

simple

replacement of the word “use” with “purpose” in the

sentence “I need to purpose [use?] your lawn

mower” demonstrates that the words are not

equivalent. (Kanner, Bad Law, 38 Urb. Law. at

202.)

Here, the courts below decided that they could

duck the issue by holding that the public use issue

was simply irrelevant to determining what interest

was originally condemned. Denver’s complaint

presented an issue to the trial court regarding

whether “commercial non-aeronautical land uses at

Denver International Airport … is in the service

and support of DEN and therefore is a public

airport use.” (App. pp. 6a, 73a) However, the trial

court’s order granting summary judgment held “the

determination of this factual issue is irrelevant”

(App. p. 7a) and Denver’s claims regarding the

property interest Denver condemned could be

“determined as a matter of law” (App. p. 77a).

The Court of Appeals likewise held Denver’s

claim regarding “public airport use” need not be

reached as a matter of law because the court agreed

with Denver that it was not relevant to the

property interest Denver condemned. (App. p. 6a.)

Assuming arguendo that commercial nonaeronautical land use is a “public” purpose, it is

clearly not the public purpose for which eminent

domain was invoked to force the transfer of the

property by court order in the first place.

That is a radical expansion of Kelo. At least in

Kelo, the city was open about condemning the

property in order to transfer it to other private

entities for private development in order to

increase the city’s tax base.4 For better or worse,

the Court concluded that it would accept the city’s

assertion that this was in the general public

interest, thus satisfying the public use (if read as

“purpose”) requirement.

Here, however, the initial condemnation was

said to be directly for the creation of a mammoth

new international airport. Ultimately, Denver’s

reach may have exceeded its grasp, and it ended up

with thousands of acres of land that was not

needed for airport construction. So it decided to

turn a profit instead of maintaining a large

environmental buffer and safety zone around its

new airport.

The Beistline Diversion.

Making profitable investments is not the job of

local government. More to the point, exercising the

power of eminent domain to wrest property from

private citizens in order to lay the foundation for

In that sense, Kelo built on Berman v. Parker, 348 U.S. 26

(1954) which permitted the condemnation of sound structures

in an otherwise blighted neighborhood to further

comprehensive reconstruction of the neighborhood. But that

is not this case either. The Monaghan Farms parcels are not

blighted and there is no urban renewal here.

speculative profit-making enterprises is certainly

not the job of municipal government. 5

In upholding the propriety of such action, the

courts below said they relied on federal law as

described in the Ninth Circuit Court of Appeals’

decision in Beistline v. City of San Diego, 256 F.2d

421 (9th Cir. 1958).

But Beistline is incapable of carrying the freight

that the Colorado courts piled on it. To be sure,

that opinion says that once a condemnation action

is based on a legitimate sounding “public use” the

issue is over. It cannot be questioned later if the

condemning agency decides to make a wholly

different (and arguably not public) use.

But Beistline contains no analysis to back up its

decision. It essentially says “because we said so.”

But that is not—or, at least, should not be—the

stuff of constitutional adjudication.6 This strips the

5 The power of eminent domain has rightly been described by

various courts as “awesome.” As one court put it, “The power

of eminent domain, next to that of conscription of man power

for war, is the most awesome grant of power under the law of

the land.” Winger v. Aires, 89 A.2d 521, 522 (Pa. 1952)

(emphasis added); see also Township of West Orange v.

769 Assoc., LLC, 969 A.2d 1080, 1085 (N.J. 2009); Maryland

Plaza Redev. Corp. v. Greenberg, 594 S.W.2d 284, 291 (Mo.

App. 1979); City of Oakland v. Oakland Raiders, 220

Cal.Rptr. 153, 156 (Cal. App. 1985); Miles v. Dawson, 830

S.W.2d 368, 370 (Ky. 1991).

A nationally recognized eminent domain scholar describes

Beistline as “singularly uninformative.” Gideon Kanner, We

Don’t Have To Follow Any Stinkin’ Planning – Sorry About

That, Justice Stevens, 39 Urb. Law. 529, 548 (2007) (Kanner,

Stinkin’).

landowner of all constitutional Fifth Amendment

protection after the time of the initial taking.

Beistline began from a false premise, i.e., that

the sale was a “voluntary” one that involved no

coercion by the government. That is wrong as a

simple matter of definition. In that case, the city

had actually filed suit to condemn the property.

The parties then (as is often the case) settled the

case by agreeing on a price and transferring title.

But no one believes such a transfer is truly

“voluntary.” As one court put it:

“A proceeding to condemn is, in substance, a

proceeding to compel a sale by the owner to

the petitioner, * * * . Atlanta, K. & N.R. Co.

v. Southern R. Co., 6 Cir., 131 F. 657, 666.”

Hawaiian Gas Prod. v. Comm'r of Internal

Revenue, 126 F.2d 4, 5 (9th Cir. 1942)

(emphasis added).

As this Court put it recently:

“Eminent domain is the power of the

government to take property for public use

without the consent of the owner.” PennEast

Pipeline Co., LLC v. New Jersey, 594 U.S.

482, 487 (2021) (emphasis added).

Indeed, Beistline itself cites Hawaiian Gas for

the proposition that “a condemnation proceeding is

by its very nature a forced or compulsory sale.” (256

F.2d at 423.) Conceding that, Beistline concludes

in true non sequitur fashion that “[n]o such theory

[i.e., compulsory sale] does or could exist in the law

of condemnation ….” (Id.)

Beistline thus disproves its own premise and,

perforce, its holding. Condemnation law uniformly

recognizes that sales to a condemning authority

are, by definition, not voluntary. Thus, such sales

are uniformly precluded from use as “comparable

sales” for valuation purposes precisely because they

are not arms’ length transactions between parties,

neither of which is under any pressure to sell or

buy. See, e.g., Pinczkowski v. Milwaukee County,

687 N.W.2d 791, 798 (Wis. App. 2004); Dean v.

Board of County Sup'rs, 708 S.E.2d 830, 832-33

(Va. 2011); Board of Trustees v. Shapiro, 799

N.E.2d 383 (Ill. App. 2003); Harrington v. Vermont

Agency of Transp., 971 A.2d 658, 660 (Vt. 2009). Cf.

26 U.S.C. § 1033 (property compulsorily or

involuntarily

converted

result

‘condemnation or threat or imminence thereof’

afforded beneficial tax treatment).”

Proceeding from that erroneous premise,

Beistline then asserts that the only time to evaluate

public use is the time of the initial condemnation.

Nothing after that matters. For this proposition,

the Court of Appeals cites one old decision of this

Court, Reichelderfer v. Quinn, 287 U.S. 315 (1932).

But that case clearly involved the change from one

clearly public use to another (park to fire station).

There was no question that the initial taking was

for a public use and so was the changed use.

The old California cases cited by Beistline are of

no help either. Spinks v. City of Los Angeles, 31

P.2d 193 (1936), for example, likewise involved an

obvious public use change, from public park to

public street. To the extent that Spinks casts any

light on the issues here, it supports Monaghan

Farms. In the California Supreme Court’s words:

“Where a tract of land is donated to a city

with a restriction upon its use—as, for

instance, when it is donated or dedicated

solely for a park—the city cannot legally

divert the use of such property to purposes

inconsistent with the terms of the grant.” Id.

at 194 (emphasis added).

So, here, the property was taken for the express

purpose of building a new airport. Period. Not as a

municipal investment vehicle.

The other California cases cited are to the same

effect, and provide no support for the proposition

that land taken for an actual public use may be

turned into a private, profit-making use.

Thus Beistline, the case on which the Colorado

courts placed their reliance has, in fact, no

foundation. It cannot support the result reached

below.

That is why this case provides a solid basis for

the Court to delve further into the holding and

effects of Kelo. The issue squarely presented here is

whether a radical change in use of condemned

property, from construction of a public airport to

the opening of for profit, non-aeronautical,

businesses requires a new look at the public use

issue. If the property is no longer needed for the

new airport, and it is better suited to private

commercial use, then it ought to be returned to the

former owner to make such use, or else paid for.

II.

When The Government Condemns Far

More Land Than It Needs For Its Public

Project, The Constitutional Rights Of The

Underlying Property Owner Should

Require That Any Remainder Be Returned

Or Paid For, Rather Than Enriching The

Government For Converting It To Private

Commercial Use.

This case starkly presents the issue of abuse of

the eminent domain power. It is not a case of

simply having a leftover scrap of unneeded or

unusable property after legitimately condemning

property for a public project and then building the

project. Here, Denver condemned enough land to

allow it to build—if it chose—the second largest

airport on the planet. But it did not do that. Of the

8,360 acres that it condemned from Monaghan

Farms, it later decided it needed only about half of

that, and could devote the remaining thousands of

acres to private, commercial, profit-making use.

Government should not be in the business of

speculating in real estate. Government officials are

not equipped to evaluate risks associated with

commercial real estate development because they

lack expertise in real estate markets. In attempting

to enter the commercial development market, they

are gambling with public funds, not their own

investments, thus having no personal stake in the

project. Even when they engage in studies (as this

Court believed was done in Kelo), they do not

always get it right (as all subsequent examinations

of the aftermath of Kelo have shown).7 It should

particularly not be allowed to engage the coercive

power of eminent domain to take private property

for a legitimate sounding public purpose and then

later decide to convert it to a profit-making

enterprise. That is not the business of government.

See Kevin L. Cooney, A Profit For the Taking: Sale

of Condemned Property After Abandonment of the

Proposed Public Use, 74 Wash. U.L.Q. 751 (1996).

If property is to be put to profit-making use, then

the private, free enterprise system ought to be

allowed to work.

After all, at the time Denver initially

condemned this property, Monaghan Farms had

been working on plans of its own to develop this

land for a mixed residential and business

community. No reason appears why it should not

be restored to that position. Or at least be

compensated for the loss of this economic

opportunity.

As Israel’s High Court of Justice summarized it,

“expropriation was not intended to enrich the

state.” HCJ 2390/96, Karsik v. State of Israel, 55(2)

PD 625 (p. 22) (2001) (For further discussion see

Danielle Marx, Takings and the Requirement of

Ongoing Public Purpose, 36 Isr. L. Rev. 151 (2002).

The Property Owner’s Interests Should

be Paramount Under the Constitution.

As the rights of property owners who are the

targets of eminent domain are protected by the

See, e.g., Kanner, Bad Law, 39 Urb. Law. at 536-37.

Fifth Amendment, the rights of the condemning

agency are generally construed strictly against the

government. (Warm Springs Irr. Dist. v. Pacific

Live Stock Co., 270 F. 560 (9th Cir. 1921); Johnson

v. Preston, 203 N.E.2d 505 (Ohio App. 1963);

McMechan v. Board of Education, 105 N.E.2d 270

(Ohio 1952).) The documents filed in support of the

condemnation generally limit the scope of the

taking. (Alemany v. Comm’r of Transp., 576 A.2d

503 (Conn. 1990); see also Isley v. Bogart, 338 F.2d

33 (10th Cir. 1964); Superior Oil Co. v. Harsh, 39 F.

Supp. 467 (E.D. Ill. 1941), aff’d, 126 F.2d 572 (7th

Cir. 1942).) In like manner, the compensation paid

provides direction whether a fee simple absolute, or

some lesser estate, was condemned. (Canova v.

Shell Pipeline Co., 290 F.3d 753 (5th Cir. 2002);

Town of Morganton v. Hutton & Bourbonnais Co.,

112 S.E.2d 111 (N.C. 1960); Jones v. Oklahoma

City, 137 P.2d 233 (Okla. 1941).)

Where there are doubts, ambiguities should be

resolved in favor of the property owner. (General

Hospital Corp. v. Massachusetts Bay Transp.

Authority, 672 N.E.2d 521 (Mass. 1996); Egaas v.

Columbia County, 673 P.2d 1372 (Or. App. 1983).)

Here, the record shows that Denver did not

directly ask for fee simple absolute title. The record

also shows that the compensation it paid was for

less than the adjudicated value of a full fee simple

absolute estate in this land.

When anything less than fee simple absolute

title is condemned, the use of the condemned

property interest must be for and in accordance

with

the

purposes

which

justified

the

condemnation. (United States v. Burmeister, 172

F.2d 478 (10th Cir. 1949); Spears v. Kansas City

Power & Light Co., 455 P.2d 496 (Kan. 1969).)

Plainly, the reason that Denver decided after

the fact to assert that it took “fee simple absolute”

title was that general real estate law endows the

holders of such interests the ability to do as they

see fit with their property.

Thus, the assertion that Denver took such title

bolsters the idea that there is no need to reexamine

the public use issue if the use later changes. But if

Denver is wrong—as the record would show if the

issue had been allowed to proceed on its merits—no

such absolute title was even sought in the

condemnation petition.

Guidance on the proper resolution of this issue

comes from Israel’s High Court of Justice. Faced

with a situation similar to the one here, that Court

concluded that:

“Indeed, an authority that has expropriated

land for a specific purpose and for many

years makes no use of the land for the

purpose for which the land was expropriated,

in its very omission reveals that it does not

need the land that was expropriated; not at

the time it was expropriated and not for the

purpose for which it was appropriated….

From here the accepted legal rule follows,

that unreasonable delay by the authority in

accomplishing

the

purpose

the

expropriation grants the individual the right

to demand the cancellation of the

expropriation.” (Karsik v. State of Israel,

HCJ 2390/96, p. 21 (2001).)

As the Fifth Amendment guarantees have been

incorporated into the Fourteenth Amendment’s due

process guarantee (Chicago, B. & Q.R. Co. v. City of

Chicago, 166 U.S. 226 (1897)), Colorado cannot

provide less protection to property owners than

other states or the United States. It can only

provide more protection, as the Fifth Amendment

serves as a floor. Joslin Mfg. Co. v. City of

Providence, 262 U.S. 668, 676-77 (1923) (state

“powerless to diminish” rights, but may increase

them); Mills v. Rogers, 457 U.S. 291, 300 (1982)

(U.S. Constitution provides “minimum” protection

to which all are entitled); see also Akhil Reed

Amar, Philadelphia Revisited:

Amending the

Constitution Outside Article V, 55 U. Chi. L. Rev.

1043, 1100 (1988) (“the federal Constitution stands

as a secure political safety net—a floor below which

state law may not fall”; emphasis added.)

When The Government’s Interests Are

Financial, Its Actions Must Be Viewed

With Skepticism.

Underlying the Court’s conclusion that

Constitutional decisions necessarily impinge on the

freedom and flexibility of government agencies

(First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 321 (1987))

was undoubtedly the Court’s repeated recognition

that, when the governmental interest is financial,

its actions must be viewed warily. See United

States Trust Co. v. New Jersey, 431 U.S. 1, 26

(1977) (“complete deference to a legislative

assessment of reasonableness and necessity is not

appropriate because the State’s self-interest is at

stake. A governmental entity can always find a use

for extra money ....” (emphasis added); United

States v. Good Real Property, 510 U.S. 43, 55-56

(1993) (careful examination “is of particular

importance ... where the Government has a direct

pecuniary interest in the outcome of the

proceeding”); United States v. Winstar Corp., 518

U.S. 839, 896 (1996) (concerns regarding “statutes

tainted by a governmental object of self-relief ... in

which the Government seeks to shift the costs of

meeting its legitimate public responsibilities to

private parties”).

To allow Denver to decide to engage in profitmaking enterprises on land that it condemned,

rather than leaving it in private hands so that such

activities could be undertaken by private enterprise

undercuts our constitutional system. Bluntly, “[t]he

political ethics reflected in the Fifth Amendment

reject confiscation as a measure of justice.” (United

States v. Cors, 337 U.S. 325, 332 (1949).)

III.

This Court’s Recent Decision in Loper Bright

(2024) Calls For Re-Examining The Duty Of

The Judiciary To Exercise Independent

Judgment In Deciding Public Use Under Kelo.

In Loper Bright Enterprises v. Raimondo, 144

S.Ct. 2244, 2263 (2024) this Court held courts must

exercise their independent judgment in deciding

whether an agency has acted within its statutory

authority, and that courts may not defer to an

agency interpretation of the law simply because a

statute is ambiguous. See also West Virginia v.

Environmental Protection Agency, 597 U.S. 697,

699 (2022) (major questions doctrine). Because this

Court found this is true with respect to a statute,

the principle should apply with even greater force

with respect to the Takings Clause in the

Constitution.

It is true that in Kelo the Court gave deference

to the city’s administrative planning process. (See,

e.g., the discussion at 545 U.S. at 483-84.) The

Court concluded that the state court decision had

been based on a “carefully considered” development

plan. (545 U.S. at 478)8 However, the extent of that

deference is now called into question by this Court’s

decision in Loper Bright.

But what is even more troubling is that at least

in Kelo, the Court acknowledged its basic duty to

determine public use: “This Court’s authority …

extends … to determining whether … proposed

condemnations are for a ‘public use’ within the

meaning of the Fifth Amendment to the Federal

Constitution.” (Kelo, 545 U.S. at 489-90.) However

in this case, while the Colorado courts were

presented with the public use issue, they refused to

exercise their independent judgment to determine

Public Use. Instead, an agency used its

extraordinary power of eminent domain to force the

sale of land to be used to construct one of the

world’s largest airports and then, abruptly,

It turns out that was just so much “hortatory fluff,” as

Justice O’Connor explained in her dissent. (545 U.S. at 497)

For further analysis see, e.g., Gideon Kanner, Stinkin’, 39

Urb. Law. 529 (2007).

changed its mind to use nearly half of the massive

area condemned for private commercial use—

without any court taking the time or effort to

analyze the propriety of that change. The Colorado

courts simply rubber-stamped Denver’s radical

change of plans without examination.

With respect, such judicial abdication flies in

the face of American jurisprudence. “It is well

established that…the question [of] what is a public

use is a judicial one.” (City of Cincinnati v. Vester,

281 U.S. 439, 446 (1930).) As this Court recently

summarized:

“The Framers … envisioned that the final

interpretation of the laws would be the

proper and peculiar province of the courts.

Unlike the political branches, the courts

would by design exercise neither Force nor

Will, but merely judgment. To ensure the

steady, upright and impartial administration

of the laws, the Framers structured the

Constitution to allow judges to exercise that

judgment independent of influence from the

political branches.

“This

Court

embraced

the

Framers’

understanding of the judicial function early on.”

(Loper Bright, 144 S.Ct. at 2257.)

Accordingly, certiorari is necessary to reexamine the duty of the judiciary to exercise its

independent judgment in deciding Public Use

under Loper Bright and Kelo.

IV.

Where A Disputed Fact Is At The Core Of A

Litigation, It Is Not Proper To Decide It As A

Matter Of “Law”

The General Rule.

At the heart of this case is the question of

whether using thousands of acres of land

condemned to develop an airport to create, instead,

for-profit

commercial,

non-aeronautical,

enterprise is a “public” use in any sense of the

word. Whether the answer to that question is one of

fact or law is central to the propriety of the decision

below.

The trial court held that the “public” use issue

was “irrelevant” and that it had meaning only at

the time of the initial condemnation. So saying, it

forensically swept the public use issue under a

broad judicial rug that hid the issue from view.

“Legal” issues are those that “can be resolved

without reference to any disputed facts.” Dupree v.

Younger, 598 U.S. 729, 735 (2023) (emphasis

added). Distinguishing “law” from “fact” is not

always easy. Indeed, this Court has noted “the

vexing nature of the distinction between questions

of fact and questions of law.” E.g., PullmanStandard v. Swint, 456 U.S. 273, 288 (1982).

“Summary judgment is appropriate only if ‘the

movant shows that there is no genuine issue

as to any material fact and the movant is

entitled to judgment as a matter of law.’

[Citation.] In making that determination, a

court must view the evidence ‘in the light most

favorable to the opposing party.’” Tolan v.

Cotton, 572 U.S. 650, 656-57 (2014) (quoting

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157

(1970)).

Denver has plainly understood throughout that

the issue of whether its scheme actually satisfied

the “public use” mandate was important to the

case. That is why it raised the issue as a claim in

its complaint. When moving for summary

judgment, however, it sought to leave that issue off

the table, saying that a decision in its favor on the

other issues would allow it (and the courts) to avoid

coming to grips with the centrality of current public

use to its case. Denver escaped and evaded this

issue with smoke and mirrors, persuading the trial

court and the Colorado appellate courts that this

threshold issue did not have to be squarely

addressed—and it never was.

This Court should not be fooled.

Converting Land Condemned To Create

Environmental Buffers And Safety

Zones Into Profit Making Private

Ventures Cannot Be Assumed To Be A

“Public Use”

When Denver announced the plans for its new

airport, it proudly proclaimed that it was acquiring

so much land that it would be able to surround the

core facilities with a large buffer area to protect

any eventual neighbors from the side effects of

airport operations (noise, dust, fumes, etc.). It was

familiar with those problems because its own

airport (Stapleton) was plagued by them, just as

other urban airports had been for years. Building a

new airport far into the rural countryside gave

Denver the opportunity to avoid such problems.

Denver proudly proclaimed that it was creating the

most environmentally compatible airport in the

country because of the location of the new facility,

the method of its operation and noise buffer areas

surrounding the new airport.9

Likewise, Denver wisely decided to create

airport safety zones prohibiting any non-airport

related structures from being built near the end of

the runways to prevent both people and property

from getting hurt or damaged by airplane crashes.

Fast forward. Denver decided that it had so

much land that it could use some of it to make

money or offset the cost of operations for its airline

clients. The 1988 airport design had a large land

area because of the large airport noise contours and

safety zones that were supposed to make it the

most environmentally compatible airport in the

world. (See App. p. 90a, a drawing Denver prepared

showing the buffer zone in green.) Now Denver is

going to fill in those noise contours and safety zones

with as many high-density commercial office

buildings as possible out of greed for tax revenues

and to lower operating costs for the private airlines

using the airport.

If the Court needed a stark reminder of the

wisdom in its conclusion in United States Trust,

431 U.S. at 26, that “[a] governmental entity can

always find a use for extra money,” this is it.

Denver’s decision to convert a carefully planned

See authorities cited supra, p. 4, fn. 1.

environmental buffer and safety zone into a cash

cow, disavowing promises to its own citizens as well

as the FAA should not have received the seal of

approval from the Colorado courts.

It Violates the Fifth Amendment

Protection of Property Owners in Eminent

Domain to Grant the Government Fee

Simple Absolute Title Where (1) the

Condemnation Petition Never Explicitly

Sought Fee Simple Absolute Title, (2) the

Condemnor Did Not Pay Full Fair Market

Value For the Fee Simple Absolute Rights

to the Property, (3) the Property Was Not

Used For Its Specified Public Purpose, And

(4) the Property Was Later Devoted to

Private Use.

The reason that the lower courts said they were

able to duck the central “public use” issue was that

they said that the interest taken by Denver in the

original condemnation lawsuit was full fee simple

absolute title. (App. p. 7a) But that begs the

question. It simply assumes that Denver acquired

fee simple absolute title because it now says that is

what it took.

But Denver’s current assertions must be

compared to the court files below. These facts

appear: First, the condemnation petition did not

explicitly seek fee simple absolute title. Second,

Denver did not pay the full fair market value of fee

simple absolute title. Third, the condemnation

decree did not transfer full fee simple absolute title.

Fourth, the property was not put to the public

purpose specified in the condemnation petition—at

least nearly half of it was not. Finally, Denver now

wants to devote the property to profit-making,

private commercial use to lower the operating costs

for airlines. The property was not condemned for

that.

Although not technically part of the Court of

Appeals’ opinion, the following note precedes it in

the printed version:

“A division of the court of appeals holds that

when a city acquired private land through

eminent domain, it acquired those parcels in

fee simple absolute despite the fact that

(1) the

condemnation

petition

didn’t

explicitly request condemnation in fee simple

absolute, (2) the city didn’t pay full market

value for the parcels, and (3) the parcels

were later leased for private commercial

use.” (App. p. 1a)

Albeit not written by the Court of Appeals itself,

it is a concise summary of what happened below. It

reinforces Monaghan Farms’ reading of the record.

And it demonstrates how an objective reader of this

record confirms what Denver (and the lower courts)

did and did not do. Pandora’s Box has been opened.

In eminent domain proceedings, property

owners are largely at the mercy of government

condemnors. Once an agency with the “despotic”

power of eminent domain (see VanHorne’s Lessee v.

Dorrance, 2 U.S. 304, 311-12 (1795)) decides to

exercise it, it is virtually impossible for a property

owner to fight. Even though some such actions

result in “settlements,” the reality is that the

looming eminent domain power removes any

voluntariness that might otherwise appear.

The Colorado courts have cast their net too

broadly. They have created a system in which the

government may essentially do as it pleases in

wielding the awesome power of eminent domain.

They have gone beyond the basic requirements laid

down by the Fifth Amendment and this Court’s

decisions. It is time to call a halt, and the place to

do so is here. As Justice Thomas put it recently,

“our role is to enforce the Takings Clause as

written .…” Knick v. Township of Scott, 588

U.S. 180, 207 (2019) (concurring opinion).

That rejected the position of the United States,

which “urge[d] us not to enforce the Takings Clause

as written ….” Id. at 206. The same response is

appropriate here. The basic and fundamental

protections of the Fifth Amendment need to be

enforced against all government agencies.

CONCLUSION

The Colorado Courts have abused this Court’s

expansive definition of “public use” and allowed

Denver to use its eminent domain power for its own

enrichment. This must be stopped.

Certiorari should be granted.

Respectfully submitted,

MICHAEL M. BERGER*

*Counsel of Record

MANATT, PHELPS & PHILLIPS

2049 Century Park East, Suite 1700

Los Angeles, CA 90067

(310) 312-4000

mmberger@manatt.com

COUNSEL FOR PETITIONER

MONAGHAN FARMS

APPENDIX

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

COLORADO COURT OF APPEALS, FILED

JUNE 29, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — FINAL JUDGMENT AND

DECREE OF THE DENVER DISTRICT

C O U R T, C I T Y A N D C O U N T Y O F

DENVER, STATE OF COLORADO, FILED

MAY 17, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17a

APPENDIX C — ORDER OF THE DISTRICT

COURT, CITY AND COUNTY OF DENVER,

COLORADO, FILED APRIL 27, 2022 . . . . . . . . . 72a

APPENDIX D — DENIAL OF CERTIORARI

OF THE COLORADO SUPREME COURT,

FILED AUGUST 5, 2024 . . . . . . . . . . . . . . . . . . . . . 88a

APPENDIX E — EXCERPT, DEN STRATEGIC

DEVELOPMENT PLAN . . . . . . . . . . . . . . . . . . . . 90a

AppendixOF

A THE COLORADO

APPENDIX A — OPINION

COURT OF APPEALS, FILED JUNE 29, 2023

The summaries of the Colorado Court of Appeals

published opinions constitute no part of the opinion of the division but have been prepared by the

division for the convenience of the reader. The

summaries may not be cited or relied upon as they

are not the official language of the division. Any

discrepancy between the language in the summary

and in the opinion should be resolved in favor of

the language in the opinion.

SUMMARY

June 29, 2023

2023COA60

No. 22CA0956, Denver v. Monaghan Farms — Eminent

Domain — Condemnation; Real Property — Present

Estates and Future Interests — Fee Simple Absolute

— Possibility of Reverter

A division of the court of appeals holds that when a

city acquired private land through eminent domain, it

acquired those parcels in fee simple absolute despite the

fact that (1) the condemnation petition didn’t explicitly

request condemnation in fee simple absolute, (2) the city

didn’t pay full market value for the parcels, and (3) the

parcels were later leased for private commercial use.

Appendix A

COURT OF APPEALS OF COLORADO,

DIVISION THREE

Court of Appeals No. 22CA0956

CITY AND COUNTY OF DENVER,

A COLORADO MUNICIPAL CORPORATION,

Plaintiff-Appellee,

MONAGHAN FARMS, INC.,

A COLORADO CORPORATION,

Defendant-Appellant.

JUDGMENT AFFIRMED.

Division III

Opinion by JUDGE GRAHAM*.

Lum and Bernard*, JJ., concur.

Announced June 29, 2023

Defendant-appellant, Monaghan Farms, Inc. (MF),

appeals the district court’s orders (1) denying MF’s

motion to dismiss for failure to join an indispensable party

Sitting by assignment of the Chief Justice under provisions of

Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2022.

Appendix A

under C.R.C.P. 12(b)(6); (2) granting summary judgment

for plaintiff-appellee, the City and County of Denver

(Denver), on its first (quiet title) and second (release of

claims) claims; (3) denying MF’s C.R.C.P. 56(f) motion for

a denial or continuance on Denver’s summary judgment

motion; and (4) entering a final judgment and decree

quieting title in favor of Denver. We affirm the judgment

of the district court.

I. Background

This appeal concerns MF’s attempt to recover land

ceded to Denver via eminent domain over thirty years

ago. In 1988, Denver filed a petition to condemn 8,360

acres of land — the Monaghan Parcels — for the purpose

of constructing and operating what would become Denver

International Airport (DIA). After Denver was granted

immediate possession of the Monaghan Parcels, the

condemnation court appointed three commissioners and

held a hearing to determine the compensation to which

MF was entitled.

The condemnation court entered a “Rule and Decree

in Condemnation,” stating that upon payment to MF

of $27,155,218.31, plus interest, Denver would be “the

absolute holder and owner in unconditional fee simple

absolute, free of all rights of reversion and reversionary

interests,” of the Monaghan Parcels. A little over a

month later, the court updated the total compensation

due to $27,455,218.31 in its “Amended Rule and Decree

in Condemnation,” correcting a clerical mistake in the

prior order. The court determined the fair value of the

Monaghan Parcels to be $38,455,218.31.

Appendix A

Both parties eventually appealed the matter to the

Colorado Supreme Court, but they settled their respective

claims before the case was decided.

The settlement agreement, signed on November 12,

1992, memorialized the parties’ agreement as follows:

• Denver would pay MF $30,096,000, less the

$11,340,000 that MF had already withdrawn from

the court registry, resulting in a net payment of

$18,756,000. The parties agreed that this value was

not necessarily reflective of the actual market value

of the Monaghan Parcels.

• The parties would jointly file a motion for dismissal

of the pending appeal with prejudice and remand

to the district court for (1) vacatur of the earlier

Rule and Decrees; (2) entry of a “Second Amended

Rule and Order”; and (3) disbursement of funds

consistent with the agreement.

• The parties would release each other (and their

predecessors, successors, etc.) “from each and

every cause of action . . . which the releasing parties

had, may now have, or which may hereafter arise

against any of the released parties by reason of any

act, omission, matter, event, cause or other thing

whatsoever occurring prior to the date hereof.”

The settlement was conditioned on the condemnation

court, upon remand, adopting the settlement as an order

of the court and issuing an order for the agreed-upon

Appendix A

disbursement of funds, among other things. If those

conditions weren’t met, then each party’s obligations under

the agreement would terminate.

On remand, the condemnation court entered its Second

Amended Rule and Order, nunc pro tunc to January 30,

1990;1 vacated its prior two orders; and specified “that

all interests of [MF] in said property have been acquired

by [Denver,] and that title to the property described in

Exhibit A appurtenances thereto belonging, free and

clear of all liens and encumbrances, is hereby vested

in [Denver.]” Exhibit A described the property as “[a]ll

property interests in, above, on and below the surface of

the [Monaghan] Parcels.”

In May 2017, after learning that Denver planned

to lease part of the condemned property for private

commercial use instead of for DIA, MF sent a letter to

Denver requesting good faith negotiations under the

settlement agreement, contending that it retained a “right

to reversion” if the parcels were no longer used for DIA.

The letter set forth MF’s request as follows:

[MF] respectfully demands that Denver

immediately cease and desist any private

commercial use of the Private Use Parcels and

instead use the Monaghan Property solely for

public airport uses.

1. The Second Amended Rule and Order was originally entered

on November 19, 1992.

Appendix A

Alternatively, if Denver refuses to cease using

the Monaghan Property for private commercial

uses, then [MF] respectfully requests that

Denver convey title to the Private Use Parcels

back to [MF].

On April 20, 2020, MF sent Denver another letter,

reasserting its intent to pursue claims for reversion.

On November 3, 2021, Denver filed its complaint

against MF for quiet title and declaratory judgment. It

requested (1) an order quieting its title to the Monaghan

Parcels and rejecting any claims to a right of reverter by

MF; (2) a declaration that the 1992 settlement agreement

barred MF from pursuing any claims that it had any

reversionary interest in or to the Monaghan Parcels;

and (3) a declaration that the development of commercial,

non-aeronautical land uses at DIA, including within any

Monaghan Parcels, was in the service and support of DIA,

and therefore a “public airport use.”

MF then filed a motion to dismiss for failure to join

an indispensable party pursuant to C.R.C.P. 12(b)(6),

asserting that Adams County should be joined. Before a

hearing could be held on the motion to dismiss, Denver

filed its motion for summary judgment on its claims to

quiet title and to release claims, arguing that those claims

were determinative and should be considered first because

the public use issue was relevant only to the motion to

dismiss. The court heard argument on those two claims.

Appendix A

After the hearing, MF filed a motion to deny the

two claims outright or to delay the court’s ruling on the

summary judgment motion so that MF could conduct

discovery pursuant to C.R.C.P. 56(f).

The district court ruled on the motions, concluding

that discovery was not necessary to determine whether

Denver’s specified land use was a “public airport use”

because that issue was irrelevant to Denver’s first and

second claims. It therefore denied MF’s motion to dismiss

(finding that Adams County wasn’t a party necessary to its

adjudication), rejected MF’s request to conduct discovery,

and granted Denver’s motion in part.

As to the quiet title claim, the court found that the

use of the phrase “all property interests” in Exhibit A,

discussed above, meant that Denver sought and received

title to the Monaghan Parcels in fee simple absolute. 2 It

further determined that MF did not retain a reversionary

interest in the property and that the release provisions in

the settlement agreement included any purported right

of reversion following condemnation.

The court also found that the settlement agreement

was unambiguous, making extrinsic evidence inadmissible

in its interpretation of the agreement, and that MF had

failed to engage in good faith negotiations with Denver.

2. Denver’s title is subject to specified exceptions for each parcel

identified in Exhibit A related to mineral rights and prior right-ofway easements, none of which are relevant here.

Appendix A

On May 17, 2022, the court entered its “Final

Judgment and Decree,” declaring that Denver owns the

Monaghan Parcels in fee simple absolute and that [MF]

retains no residual interest in the property.

MF now appeals the following conclusions from

the court’s order for summary judgment: (1) the 1992

settlement agreement released MF’s claims arising from

prior-occurring events; and (2) Denver acquired title to the

Monaghan Parcels in fee simple absolute. It also appeals

(3) the court’s denial of its motion to dismiss finding that

Adams County was not a necessary party; and (4) its entry

of the Final Judgment and Decree, quieting title in the

Monaghan Parcels. Because we agree with Denver that

it acquired the Monaghan Parcels in fee simple absolute,

we need not reach MF’s remaining contentions.

II. Nature of the Condemned Parcels

MF contends that the district court committed

reversible error by concluding that Denver condemned

the Monaghan Parcels in fee simple absolute because

Denver’s 1988 petition didn’t request condemnation in

fee simple absolute, nor did Denver pay for the parcels to

be taken in fee simple absolute. MF asserts that Denver

merely obtained a defeasible fee subject to the possibility

of reverter should the land not be used for “public airport

use.” Denver counters that the 1992 settlement agreement

combined with the Second Amended Rule and Order

conveyed the Monaghan Parcels in fee simple absolute and

that MF retains no reversionary interest in the property.

We agree with Denver.

Appendix A

A. Additional Facts

In the 1988 condemnation petition, Denver sought to

acquire “[a]ll property interests in, above, on and below

the surface of the Parcels,” subject to several exclusions

of mineral rights and utility easements not relevant here.

Notably, the petition contains no mention of a possibility

of reverter, nor do the 1992 settlement agreement or the

Second Amended Rule and Order. Instead, the Second

Amended Rule and Order describes the acquired interests

as follows:

The entry of this Second Amended Rule and

Order resolving and settling this action between

the parties, including the full compensation

to be paid for the taking of said property

described in the Petition in Condemnation

filed herein, including all appurtenances

thereto, and any and all interests therein,

including damages, if any, and for any and all

other costs of said parties, including, but not

limited to, appraisal and other expert witness

fees, including all reports, discovery costs and

expenses, trial preparation time, reimbursable

costs, and any and all interest, before or after

the entry of judgment, to which [MF] may be

entitled, if any . . . .

....

ORDERED, ADJUDGED, AND DECREED

that the property and interests therein

10a

Appendix A

described in Exhibit A attached hereto and

incorporated herein by reference have been

duly and lawfully taken by [Denver] pursuant

to the statutes and the Constitution of the State

of Colorado; that all interests of [MF] in said

property have been acquired by [Denver]; and

that title to the property described in Exhibit

A, together with all appurtenances thereto

belonging, free and clear of all liens and

encumbrances, is hereby vested in [Denver].

(Emphases added.)

B. Standard of Review

We review de novo the court’s order granting

summary judgment, applying the same standard as the

district court. Keith v. Kinney, 140 P.3d 141, 151 (Colo.

App. 2005). Thus, we must determine whether a genuine

issue of material fact exists and whether the district court

correctly applied the law. C.R.C.P. 56(c); Poudre Sch. Dist.

R-1 v. Stanczyk, 2021 CO 57, ¶ 12, 489 P.3d 743.

In resolving a motion for summary judgment, “[a]

court must give the nonmoving party the benefit of all

favorable inferences that may reasonably be drawn from

the undisputed evidence and resolve all doubts in favor

of the nonmoving party.” Wagner v. Planned Parenthood

Fed’n of Am., Inc., 2019 COA 26, ¶ 6, 471 P.3d 1089, aff’d,

2020 CO 51, 467 P.3d 287. The nonmoving party may

not rely on “mere allegations or denials” of the moving

party’s pleadings but must identify specific facts, through

11a

Appendix A

affidavits or otherwise, that show there is a genuine

triable issue sufficient to allow a reasonable jury to

return a verdict in its favor. A-1 Auto Repair & Detail,

Inc. v. Bilunas-Hardy, 93 P.3d 598, 603 (Colo. App. 2004);

Andersen v. Lindenbaum, 160 P.3d 237, 239 (Colo. 2007).

C. Applicable Law

“The interpretation of a settlement agreement, like

any contract, is a question of law that we review de novo.”

Ringquist v. Wall Custom Homes, LLC, 176 P.3d 846, 849

(Colo. App. 2007); see also CapitalValue Advisors, LLC v.

K2D, Inc., 2013 COA 125, ¶ 17, 321 P.3d 602 (we review the

interpretation of a contract de novo (citing Ad Two, Inc. v.

City & Cnty. of Denver, 9 P.3d 373, 376 (Colo. 2000))). In

construing a contract, our goal is to give effect to the intent

and reasonable expectations of the parties. Thompson v.

Md. Cas. Co., 84 P.3d 496, 501 (Colo. 2004) (citing Allen

v. Pacheco, 71 P.3d 375, 378 (Colo. 2003)); CapitalValue,

¶ 18. We determine the parties’ intent primarily from

the language of the contract itself. In re Marriage of

Thomason, 802 P.2d 1189, 1190 (Colo. App. 1990).

Extrinsic evidence of intent is relevant only where

there is an ambiguity in the terms of the contract. Ad

Two, 9 P.3d at 376. Ambiguity exists if the language of

the contract is susceptible of more than one reasonable

interpretation. In re Marriage of Crowder, 77 P.3d

858, 861 (Colo. App. 2003). To determine whether there

is ambiguity, courts must examine the instrument’s

language and construe it in harmony with the plain and

generally accepted meaning of the words employed. Town

of Minturn v. Tucker, 2013 CO 3, ¶ 40, 293 P.3d 581.

12a

Appendix A

Additionally, the question whether a right of reverter

exists is a question of law that we review de novo. See

Bill Barrett Corp. v. Lembke, 2020 CO 73, ¶ 13, 474 P.3d

46; Perfect Place v. Semler, 2016 COA 152M, ¶ 47, 428

P.3d 577, rev’d on other grounds, 2018 CO 74, 426 P.3d

325. But because actions to quiet title under C.R.C.P. 105

are equitable proceedings, we review the trial court’s

findings of fact for an abuse of discretion and review de

novo whether the trial court correctly understood the

appropriate test for quieting title. Semler, ¶ 47.

A plaintiff in an action to quiet title to lands must rely

on the strength of its own title, and when it appears that

its rights have terminated, it is in no position to question

the legality of the title claimed by others. Sch. Dist. No.

Six v. Russell, 156 Colo. 75, 82, 396 P.2d 929, 932 (1964).

D. Language of the Condemnation

The language of the Second Amended Rule and Order

is clear; Denver sought and acquired the Monaghan

Parcels, “and any and all interests therein,” free and clear

of any possibility of reverter to MF. As the district court

explained, “Conveyances of real estate are deemed to be

fee simple unless expressly limited.” Campbell v. Summit

Plaza Assocs., 192 P.3d 465, 473 (Colo. App. 2008); see

also § 38-1-105(4), C.R.S. 2022 (In a condemnation action,

“[u]pon the entry of such [a rule describing the land and

compensation for it], the petitioner shall become seized

in fee unless a lesser interest has been sought . . . of all

such lands, . . . described in said rule as required to be

taken.”). The only limitations provided related to mineral

13a

Appendix A

rights and prior right-of-way easements, none of which

grant MF a right of reverter. The lack of certain “magic

words” doesn’t change the nature of the estate that Denver

obtained. See Steamboat Lake Water & Sanitation Dist.

v. Halvorson, 252 P.3d 497, 504 (Colo. App. 2011).

MF relies on Gypsum Ranch Co., LLC v. Board of

County Commissioners, 219 P.3d 365, 370 (Colo. App.

2009) (Gypsum I), rev’d sub nom. Dep’t of Transp. v.

Gypsum Ranch Co., 244 P.3d 127 (Colo. 2010) (Gypsum

II), for the premise that an “all interests” provision does

not convey fee simple absolute to a condemnor. We do

not read Gypsum I so broadly. There, a division of this

court held that, contrary to the condemnor’s claim, the

condemnation granted only “an interest in the property

sufficient to meet the purpose of the condemnation,”

but not the underlying mineral interests, as those were

precluded from condemnation via section 38-1-105(4).

Gypsum I, 219 P.3d at 370. Our supreme court reversed

the decision, holding that, while “governmental entities

are prohibited from acquiring a right to any mineral

resource beneath real property that was itself acquired

through condemnation for highway purposes, . . . statutory

enactments are presumed to be intended to change the

law and to do so only prospectively.” Gypsum II, 244 P.3d

at 131. Neither of these cases holds that an “all interests”

provision isn’t sufficient to obtain all property interests

that are able to be condemned. Moreover, the issue at hand

doesn’t concern mineral interests, as those were properly

excluded from Denver’s condemnation of the Monaghan

Parcels. Thus, MF’s reliance on Gypsum I and Gypsum

II is misplaced.

14a

Appendix A

And we dispose of MF’s contention that the phrase

“free and clear of all liens and encumbrances” doesn’t

extinguish the possibility of reverter. “A good title in fee

simple means the legal estate is in fee, free and clear of

all claims, liens, and encumbrances whatsoever, except as

listed in the deed.” Campbell, 192 P.3d at 473. As explained

above, no right of reverter is shown anywhere in the

transferring documents; thus, MF’s severance of the right

of reverter from liens and encumbrances does it no good.

E. Payment for the Condemnation

Similarly inaccurate is MF’s contention that because

Denver didn’t pay the full market value for the parcels, it

thus could not have acquired them in fee simple absolute,

for which MF relies on Halvorson, 252 P.3d at 504. But,

contrary to MF’s assertion, Halvorson does not posit a

factor test requiring that a condemnor sought and paid

for an absolute fee interest in order to obtain fee simple

absolute. True, the Halvorson court stated “that here,

because the District explicitly sought, and paid for, an

absolute fee interest in Lot 78, the trial court did not err

in so describing the District’s title.” Id. (emphasis added).

But this dictum doesn’t create a new test for courts to

consider when evaluating condemnations, so we decline

to apply it here.

Moreover, not only did the settlement agreement

make it clear that the parties had agreed that the price

paid did not necessarily reflect the market value of the

property, but paying the full market value for a condemned

property doesn’t equate to transfer in fee simple absolute.

15a

Appendix A

See Gypsum I, 219 P.3d at 370 (“Because the power to

take by eminent domain is qualified, the title may be

qualified, even if the condemnor has paid full value for

the property.”); Lithgow v. Pearson, 25 Colo. App. 70,

80, 135 P. 759, 762 (1913) (where owner forced to accept

condemnation, payment of full and actual value of property

proper even though fee simple absolute may not have been

transferred). Thus, MF’s argument fails.

F. Use of the Condemned Parcels

Nor do we agree with MF’s contention that the use

of the parcels for anything other than DIA triggers

a reversionary interest. Divisions of this court have

recognized that private interests taken via condemnation

are not subject to defeasement simply because the

property is later put to private use. See Halvorson, 252

P.3d at 504; Wall v. City of Aurora, 172 P.3d 934, 937 (Colo.

App. 2007) (“[A] condemnor may use condemned property

for a different purpose, so long as the original purpose

was valid at the time of the taking.”). We see no reason

here to depart from that acknowledgment.

Accordingly, we agree with the district court’s

determination that Denver acquired the Monaghan

Parcels in fee simple absolute and that MF did not retain

any reversionary interest, regardless of the use to which

the property is put.

16a

Appendix A

III. Remaining Contentions

Because we have determined that MF has no interest

in the Monaghan Parcels, we do not reach MF’s remaining

contentions. We note that these include MF’s assertions

that the district court erred by failing to afford discovery

under C.R.C.P. 56(f). In light of our disposition concluding

that there was no remaining right of reverter, further

discovery would have been unavailing.

IV. Disposition

We affirm the judgment of the district court.

JUDGE LUM and JUDGE BERNARD concur.

17a

APPENDIX B —Appendix

FINAL JUDGMENT

AND

DECREE OF THE DENVER DISTRICT COURT,

CITY AND COUNTY OF DENVER, STATE OF

COLORADO, FILED MAY 17, 2022

DENVER DISTRICT COURT, CITY AND COUNTY

OF DENVER, STATE OF COLORADO

Case No.: 2021CV33498

Division: 424

CITY AND COUNTY OF DENVER,

A COLORADO MUNICIPAL CORPORATION,

Plaintiff,

MONAGHAN FARMS, INC.,

A COLORADO CORPORATION,

Defendant.

Filed May 17, 2022

FINAL JUDGMENT AND DECREE

The Court hereby enters this Final Judgment and

Decree pursuant to C.R.C.P. 57, 58, and 105 concerning

the real property located in the City and County of Denver

and Adams County, Colorado and more particularly

described on the attached Exhibit A, attached hereto and

incorporated herein by reference.

18a

Appendix B

1. The Plaintiff City and County of Denver

(“Denver”) brought this lawsuit against Defendant

Monaghan Farms seeking declaratory and quiet title relief

concerning property Denver acquired through eminent

domain in 1992.

2. On April 27, 2022, this Court granted Denver’s

Motion for Summary Judgment on its First and Second

Claims for Relief. Because the First and Second Claims

for Relief are dispositive of the entire dispute, there is no

need for the Court to address the Third Claim for Relief,

which was pled as an alternative claim to the First and

Second Claims for Relief.

3. Based upon the Court’s Summary Judgment

Order, the pleadings and other matters of record on file

in this action, the Court hereby Finds, Declares, Orders

and Decrees as follows:

a. Denver ow ns the property identif ied and

described in Exhibit A in fee simple absolute,

subject only to specified exceptions for each

parcel identified in Exhibit A related to mineral

rights and prior right-of-way easements.

b. Monaghan Farms retains no residual interest,

including any reversionary interest, in any of the

property identified and described in Exhibit A.

4. This Final Judgment and Decree, along with the

attached Exhibit A, may be recorded with the Clerk and

Recorder of the applicable county.

19a

Appendix B

SO ORDERED this 17th day of May, 2022.

BY THE COURT:

/s/

Shelley I. Gilman

District Court Judge

20a

Appendix B

DISTRICT COURT, DENVER COUNTY,

COLORADO

Case Number: 2021CV33498

Division: 424

CITY AND COUNTY OF DENVER,

Plaintiff,

MONAGHAN FARMS INC.,

Defendant.

ORDER: EXHIBIT A TO

FINAL JUDGMENT AND DECREE

The motion /proposed order attached hereto: SO

ORDERED.

Exhibit A is incorporated by reference to the Final

Judgment and Decree.

Issue Date: 5/17/2022

/s/

SHELLEY ILENE GILMAN

District Court Judge

21a

Appendix B

EXHIBIT A

The property interests being acquired are described

under the following parcel designations 1 through 16, and

except where specifically noted in the parcel descriptions

include the following interests:

(a) All property interests in, above, on and below the

surface of the Parcels:

(b) Any and all improvements and fixtures located

on the Parcels;

(c)

All appurtenances thereunto appertaining;

(d) All water rights and related licenses, rightsof-way, easements and priorities associated with or

appurtenant to the Property and owned by Seller,

including but not limited to all water, water rights,

geothermal water, geothermal water rights, ditches,

ditch rights, priorities, reservoirs and reservoir rights,

livestock watering tanks, springs, filings, wells, well

permits and underground water, adjudicated and

unadjudicated, tributary and nontributary, on or used

on or appurtenant to the Property, including but not

limited to all nontributary underground water, water

rights and well permits, including but not limited to those

waters, water well rights, and well permits described in

Sections 37-90-101 et seq. and 37-92-101 et seq., C.R.S., the

“Statewide Nontributary Ground Water Rules, “ 2 CCR

402-7, 9 CR 2, effective March 2, 1986, and “The Denver

Basin Rules,” 3 CCR 402-6, 8 CR 12, effective December

22a

Appendix B

30, 1985, with respect to nontributary ground water

underlying the Property, including without limitation all

water rights associated with the following: all wells and

water rights decreed in Case No. 85CW135(C), Water

Division No. 1, which decree is recorded on September 10,

1986 at Reception No. B677828 in Book 3199 at Page 172

in the office of the Clerk and Recorder for Adams County,

Colorado; Case No. 85CW135(B), Water Division No. 1,

which decree is recorded on May 4, 1987 at Reception

No. B737529 in Book 3311 at Page 46 in the office of the

Clerk and Recorder for Adams County, Colorado; Case

No. 85CW135(A), Water Division No. 1, which decree is

recorded on May 4, 1987 at Reception No. B737528 in Book

3311 at Page 28 in the office of the Clerk and Recorder for

Adams County, Colorado; and all wells and water rights

identified in Well Permits numbered 217043, 14128, 58822,

and 72811 as filed with the Colorado Division of Water

Resources.

(e) All mineral, royalty and other participating

rights conveyed to J. H. Monaghan and N. M. Monaghan

as set forth in Deed from Box Elder Farms Co. recorded

December 6, 1949 in Book 385 at Page 324 in the office

of the Clerk and Recorder for Adams County, Colorado.

(f ) Any and all of Reopondents’ interests, if any, in

and to the real property situate in the North one-half of

Section 32, Township 2 South, Range 65 West of the 6th

Principal Meridian, Adams County, Colorado.

(g) Any rights and interests of Respondent owners

in and to the property described as the West 210 feet of

23a

Appendix B

Sections 9, 16, 21, 28, and 33 of Township 2 South, Range

65 West of the 6th P.M. and the West 210 feet of Section 4

Township 3 South, Range 65 West of the 6th P.M.

Parcel 1

All of Section 31, Township 2 South, Range 65 West of the

Sixth P.M. and the North one-half of Section 36, Township

2 South, Range 66 West of the Sixth P.M., all located

within the City and County of Denver, State of Colorado.

Subject to:

1. Easement and right of way for utility purposes

as granted to Colorado-Wyoming Gas Company by

instrument recorded December 10, 1964 in Book 1199 at

Page 214 in the office of the Clerk and Recorder for Adams

County, Colorado. (Affects N½ Section 36.)

2. Easement and right of way as granted to Phillips

Petroleum Company by instrument recorded July 21,

1971 in Book 1716 at Page 349 in the office of the Clerk

and Recorder for Adams County, Colorado. (Affects NW¼

Section 36.)

3. Reservation as contained in Deed from The Union

Pacific Land Company recorded June 10, 1908 in Book

25 at Page 200 in the office of the Clerk and Recorder for

Adams County, Colorado as follows:

Reserving all oil, coal and other minerals within

or underlying said land, with right to prospect

24a

Appendix B

for, mine and remove same, all oil, coal and

other minerals which may be found thereon and

right of ingress and egress and regress upon

said land, to prospect for, mine and remove

any and all such oil, coal and other minerals

and right to use so much of said land as may

be convenient or necessary for the right of way

to and from such prospect places or mines and

for the convenient and proper operation of such

prospect places and for roads and for removal

therefrom of oil, coal, minerals and machinery

and other material. (Affects all of Section 31.)

4. Reservations as contained in Deed from Box Elder

Farms Co. recorded December 6, 1949 in Book 385 at

Page 324 in the office of the Clerk and Recorder for Adams

County, Colorado as follows:

Box Elder Farms Co. excepts and reserves to

itself, its successors and assigns all the oil, gas

and other subsurface minerals of whatsoever

nature or description in and under said lands,

with the exclusive right to prospect for and

exploit the same, and sufficient use of the

surface thereof, and the right to lay, maintain

and operate pipe lines for oil and gas, and to

erect, maintain and operate telephone and

telegraph lines with the right reserved to

remove any buildings, machinery, pipe lines

or other property erected or placed on said

land in connection therewith, such pipe lines,

telephone or telegraph lines and the use of

25a

Appendix B

the surface, however, not to infringe upon or

interfere with any improvements upon said

land without payment of a reasonable amount

for any damage caused thereby.

Box Elder Farms Co., for itself and for its

successors and assigns, retains and reserves

the sole and exclusive right to lease said land

or any part thereof for oil, gas and other

minerals reserved to and owned by it; provided,

however, that the grantees, their successors

and assignees, shall be entitled to receive

one-half of the net proceeds of all bonuses and

rentals paid under any such lease or leases after

deducting the cost and expenses in connection

with the granting of any such lease; provided

also, the parties of the second part, their heirs,

successors and assigns, shall be entitled to

one-half of the landowner’s royalty paid under

any such lease or leases, which one-half royalty

may be paid direct to parties of the second

part, their heirs, successors and assigns by any

lessee. (Affects E½ Section 31.)

5. All rights to any and all minerals, ore and metals

of any kind and character, and all coal, asphaltum, oil,

gas and other like substances in or under said land, the

rights of ingress and egress for the purpose of mining,

together with enough of the surface of the same as may be

necessary for the proper and convenient working of such

minerals and substances as reserved in that certain Patent

from the State of Colorado recorded June 19, 1985 in Book

26a

Appendix B

3015 at Page 91 in the office of the Clerk and Recorder for

Adams County, Colorado. (Affects N½ Section 36.)

6. Terms, conditions and provisions of Oil and Gas Lease

recorded February 25, 1972 in Book 1782 at Page 515 in

the office of the Clerk and Recorder for Adams County,

Colorado And All assignments thereof. Affidavit of Lease

Extension recorded September 22, 1980 in Book 2491 at

Page 920 in the office of the Clerk and Recorder for Adams

County, Colorado. (Affects S½ and NW¼ Section 31.)

7. Terms, conditions and provisions of Oil and Gas Lease

recorded October 15, 1981 in Book 2593 at Page 592 in

the office of the Clerk and Recorder for Adams County,

Colorado and all assignments thereof. Affidavit of Lease

Extension recorded February 3, 1986 in Book 3105 at Page

493 in the office of the Clerk and Recorder for Adams

County, Colorado. (Affects Section 36.)

Parcel 2

The South one-half of Section 32, Township 2 South,

Range 55 West of the 6th P M., City and County of Denver,

State of Colorado.

Together with:

Right of any proprietor of a vein or lode to extract and

remove his ore therefrom, should the same be found to

penetrate or intersect the premises hereby granted, as

reserved in United States Patent recorded January 10,

1889 in Book A67 at Page 306 in the office of the Clerk

27a

Appendix B

and Recorder for Adams County, Colorado (affects SW¼)

and March 10, 1904 in Book 16 at Page 120 in the office

of the Clerk and Recorder for Adams County, Colorado

(affects SE¼).

Subject to:

1. The rights, title and interests of the City and County of

Denver in and to the East 30 feet of said section for road,

public highway, right of way, and other statutory purposes.

2. A reserved right of way for ditches or canals

constructed by the authority of the United States, as

reserved in United States Patent recorded January 10,

1889 in Book A67 at Page 306 in the office of the Clerk

and Recorder for Adams County, Colorado (affects SW¼)

and March 10, 1904 in Book 16 at Page 120 in the office

of the Clerk and Recorder for Adams County, Colorado

(affects SE¼).

3. Reservations contained in Deed from Box Elder

Farms Co. to J. H. Monaghan and N. M. Monaghan

recorded December 6, 1949 in Book 385 at Page 324 in

the office of the Clerk and Recorder for Adams County,

Colorado as follows:

All the oil, gas and other subsurface minerals

of whatsoever nature or description in and

under said lands, with the exclusive right to

prospect for and exploit the same and sufficient

use of the surface thereof, and the right to lay,

maintain, and operate pipeline for oil and gas,

28a

Appendix B

and to erect, maintain, and operate telephone

and telegraph lines with the right reserved to

remove any buildings, machinery, pipe lines

or other property erected or placed on said

land in connection therewith, such pipe lines,

telephone and telegraph lines and the use of

the surface, however, not to infringe upon or

interfere with any improvements upon said

land without payment of a reasonable amount

for any damage caused thereby.

Box Elder Farms Co., for itself and for its

successors and assigns, retains and reserves

the sole and exclusive right to lease said land

or any part thereof for oil, gas and other

minerals reserved to and owned by it; provided,

however, that the grantees, their successors

and assignees, shall be entitled to receive

one-half of the net proceeds of all bonuses and

rentals paid under any such lease or leases after

deducting the cost and expenses in connection

with the granting of any such lease; provided

also, the parties of the second part, their heirs,

successors and assigns, shall be entitled to

one-half of the landowner’s royalty paid under

any such lease or leases, which one-half royalty

may be paid direct to parties of the second

part, their heirs, successors and assigns by any

lessee. (Affects SW¼ and E½ SE¼)

29a

Appendix B

Parcel 3

Section 33, Township 2 South, Range 69 West of the

6th P.M., City and County of Denver, State of Colorado,

excepting therefrom the West 210 feet.

Subject to:

1. The rights, title and interests of the City and County

of Denver in and to the East 30 feet of said Section and

the South 30 feet of said Section for road, public highway,

right of way, and other statutory purposes.

2. Right of way as granted to Panhandle Eastern Pipe

Line Company in instrument recorded January 22, 1974

in Book 1910 at Page 210 in the office of the Clerk and

Recorder for Adams County, Colorado. (Affects W½.)

3. Reservation as contained in Deed recorded May 20,

1909 in Book 25 at Page 216 in the office of the Clerk and

Recorder for Adams County, Colorado as follows:

All oil, coal and other minerals within or

underlying said lands. The exclusive right to

prospect in and upon said land for coal and other

minerals therein, or which may be therein, and

to mine for the removal from said land, all coal

and other minerals which may be found thereon

by any one. The right of ingress. egress and

regress upon said land to prospect for, mine and

remove any and all such coal or other minerals,

and the right to use so much of said land as

30a

Appendix B

may be convenient or necessary for the right

of way to and from prospect places or mines

and for the convenient and proper operation of

such prospect places, mines and for roads and

approaches thereto or for removal therefrom of

all coal, machinery or other material. The right

to Union Pacific Railroad Company to maintain

and operate its railroad in its present form of

construction, and to make any change in the

form of construction or method of operation of

said railroad.

4. Reservations as contained in Deed from Box Elder

Farms Co. recorded December 5, 1949 in Book 385 at

Page 324 in the office of the Clerk and Recorder for Adams

County, Colorado as follows:

Box Elder Farms Co. excepts and reserves to

itself, its successors and assigns all the oil, gas

and other subsurface minerals of whatsoever

nature or description in and under said lands,

with the exclusive right to prospect for and

exploit the same, and sufficient use of the

surface thereof, and the right to lay, maintain

and operate pipe lines for oil and gas, and to

erect, maintain and operate telephone and

telegraph lines with the right reserved to

remove any buildings, machinery, pipe lines

or other property erected or placed on said

land in connection therewith, such pipe lines,

telephone and telegraph lines and the use of

the surface, however, not to infringe upon or

31a

Appendix B

interfere with any improvements upon said

land without payment of a reasonable amount

for any damage caused thereby.

Box Elder Farms Co., for itself and for its

successors and assigns, retains and reserves

the sole and exclusive right to lease said land

or any part thereof for oil, gas and other

minerals reserved to and owned by it; provided,

however, that the grantees, their successors

and assignees, shall be entitled to receive

one-half of the net proceeds of all bonuses and

rentals paid under any such lease or leases after

deducting the cost and expenses in connection

with the granting of any such lease; provided

also, the parties of the Second Part, their

heirs, successors and assigns, shall be entitled

to one-half of the Landowner’s Royalty paid

under any such lease or leases, which one-half

royalty may be paid direct to parties of the

Second Part, their heirs, successors and assigns

by any lessee.

5. Terms, conditions and provisions of Oil and Gas Lease

in favor of Champlin recorded February 25, 1972 in Book

1782 at Page 515 in the office of the Clerk and Recorder

for Adams County, Colorado. Affidavit of Lease Extension

recorded September 22, 1980 in Book 2491 at Page 920 in

the office of the Clerk and Recorder for Adams County,

Colorado.

32a

Appendix B

Parcel 4

Section 28, Township 2 South, Range 65 West of the

6th P.M., City and County of Denver, State of Colorado,

excepting therefrom the West 210 feet of the Southwest

quarter and the West one-half of the Northwest quarter.

Together with:

Right of any proprietor of a vein or lode to extract and

remove his ore therefrom should the same be found to

penetrate or intersect the premises as reserved in the

following United States Patents: (a) recorded June 25,

1891 in Book A2S at Page 287 in the office of the Clerk

and Recorder for Adams County, Colorado, (b) recorded

October 23, 1093 in Book A24 at Page 299 in the office

of the Clerk and Recorder for Adams County, Colorado,

the office of the Clerk and Recorder for Adams County,

Colorado, and (d) recorded November 18, 1944 in Book

302 at Page 32 in the office of the Clerk and Recorder

Adams, Colorado

Subject to:

1. The rights, title and interests of the City and County

of Denver in and to the North 30 feet of said Section and

the East 30 feet of said Section for road, public highway,

right of way and other statutory purposes.

2. Right of way as granted to Panhandle Eastern Pipe

Line Company in instrument recorded January 22, 1974

33a

Appendix B

in Book 1910 at Page 210 in the office of the Clerk and

Recorder for Adams County, Colorado. (Affects SW¼.)

3. Reservations as contained in Deed from Box Elder

Farms Co. recorded December 6, 1949 in Book 385 at

Page 324 in the office of the Clerk and Recorder for Adams

County, Colorado as follows:

Box Elder Farms Co. excepts and reserves to

itself, its successors and assigns all the oil, gas

and other subsurface minerals of whatsoever

nature or description in and under said lands,

with the exclusive right to prospect for and

exploit the same, and sufficient use of the

surface thereof, and the right to lay, maintain

and operate pipe lines for oil and gas, and to

erect, maintain and operate telephone and

telegraph lines with the right reserved to

remove any buildings, machinery, pipe lines

or other property erected or placed on said

land in connection therewith, such pike lines,

telephone and telegraph lines and the use of

the surface, however, not to infringe upon or

interfere with any improvements upon said

land without payment of a reasonable amount

for any damage caused thereby.

Box Elder Farms Co., for itself and or its

successors and assigns, retains and reserves

the sole and exclusive right to lease said land

or any part thereof for oil, gas and other

minerals reserved to and owned by it; provided,

34a

Appendix B

however, that the grantees, their successors

and assignees, shall be entitled to receive

one-half of the net proceeds of all bonuses and

rentals paid under any such lease or leases after

deducting the cost and expenses in connection

with the granting of any such lease; provided

also, the parties of the Second Part, their

heirs, successors and assigns, shall be entitled

to one-half of the Landowner’s Royalty paid

under any such lease or leases, which one-half

royalty may be paid direct to parties of the

Second Part, their heirs, successors and assigns

by any lessee. (Affects all of Section 28 except

W½ of NW¼.)

Parcel 5

Section 24, Township 2 South, Range 66 West of the 6th

P.M., a portion of which is located in the City and County

of Denver, and a portion of which is located in the County

of Adams, State of Colorado.

Together with:

Right of any proprietor of a vein or lode to extract and

remove his ore therefrom should the same be found to

penetrate or intersect the premises as reserved in the

following United States Patents: (a) recorded March 8,

1892 in Book A25 at Page 371 in the office of the Clerk

and Recorder for Adams County, Colorado (affects NE¼),

(b) recorded March 2, 1902 in Book A25 at Page 505 in

the office of the Clerk and Recorder for Adams County,

35a

Appendix B

Colorado (affects NW½), (c) recorded February 11, 1891

in Book A25 at Page 260 in the office of the Clerk and

Recorder for Adams County, Colorado (affects SE¼), and

(d) recorded April 14, 1891 in Book A25 at Page 273 in

the office of the Clerk and Recorder for Adams County,

Colorado (affects SW¼).

Subject to:

1. Right of way as granted to Panhandle Eastern Pipe

Line Company in instrument recorded August 14, 1980

in Book 2482 at Page 23 in the office of the Clerk and

Recorder for Adams County, Colorado.

2. Easement as granted to Thomas C. Vessels in

instrument recorded August 2, 1973 in Book 1879 at Page

609 in the office of the Clerk and Recorder for Adams

County, Colorado.

3. The rights, title and interests of the City and County

of Denver and Adams County in and to the South 30 feet

of said Section for road, public highway, right of way and

statutory purposes.

4. Reservations as contained in Deed from Box Elder

Farms Co. recorded December 6, 1949 in Book 385 at

Page 324 in the office of the Clerk and Recorder for Adams

County, Colorado as follows:

Box Elder Farms Co. excepts and reserves to

itself, its successors and assigns all the oil, gas

and other subsurface minerals of whatsoever

36a

Appendix B

nature or description in and under said lands,

with the exclusive right to prospect for and

exploit the same, and sufficient use of the

surface thereof, and the right to lay, maintain

and operate pipe lines for oil and gas, and to

erect, maintain and operate telephone and

telegraph lines with the right reserved to

remove any buildings, machinery, pipe lines

or other property erected or placed on said

land in connection therewith, such pipe lines,

telephone and telegraph lines and the use of

the surface, however, not to infringe upon or

interfere with any improvements upon said

land without payment of a reasonable amount

for any damage caused thereby.

Box Elder Farms Co., for itself and for its

successors and assigns, retains and reserves

the sole and exclusive right to lease said land

or any part thereof for oil, gas and other

minerals reserved to and owned by it; provided,

however, that the grantees, their successors

and assignees, shall be entitled to receive

one-half of the net proceeds of all bonuses and

rentals paid under any such lease or leases after

deducting the cost and expenses in connection

with the granting of any such lease; provided

also, the parties of the Second Part, their heirs,

successors and assigns, shall be entitled to onehalf of the Landowner’s Royalty paid under

any such lease or leases, which one-half royalty

may be paid direct to parties of the Second

37a

Appendix B

Part, their heirs, successors and assigns by any

lessee. (Affects N½.)

Parcel 6

Southeast quarter of Section 20, Township 2 South, Range

65 West of the 6th P.M.. City and County of. Denver, State

of Colorado.

Together with:

Right of any proprietor of a vein or lode to extract and

remove his ore therefrom should the same be found to

penetrate or intersect the premises as reserved in that

certain United States Patent recorded April 25, 1911 in

Book 25 at Page 382 in the office of the Clerk and Recorder

for Adams County, Colorado. (Affects SE¼.)

Subject to:

1. An Easement as granted to Union Rural Electric

Association, Inc., in instrument recorded March 20, 1980

in Book 2439 at Page 798 in the office of the Clerk and

Recorder for Adams County, Colorado.

2. The rights, title and interests of the City and County

of Denver in and to the East 30 feet of said Section and

the South 30 feet of said Section for road, public highway,

right of way and other statutory purposes.

3. Reservation as contained in Deed from Box Elder

Farms Co. to J. H. Monaghan and N. M. Monaghan

38a

Appendix B

recorded December 5, 1951 in Book 432 at Page 156 in

the office of the Clerk and Recorder for Adams County,

Colorado as follows:

Excepting and reserving unto the grantor, its

successors and assigns all the oil, gas and other

subsurface minerals of whatsoever nature or

description in and under said lands, with the

exclusive rights to prospect for and exploit the

same, and sufficient use of the surface thereof,

and the right to lay, maintain and operate pipe

lines for oil and gas and to erect, maintain and

operate telephone and telegraph lines with

the right reserved to remove any buildings,

machinery, pipe lines or other property erected

or placed on said land in connection therewith,

such pipe lines, telephone and telegraph

lines and the use of the surface, however,

not to infringe upon or interfere with any

improvements upon said land without payment

of a reasonable amount for any damage caused

thereby. (Affects SE¼.)

Parcel 7

Section 21, Township 2 South, Range 65 West of the

6th P.M., City and County of Denver, State of Colorado

excepting therefrom the West 210 feet.

Together with:

All “Surface Owner’s” rights and privileges identified

in the Surface Owners Agreements recorded March 25,

39a

Appendix B

1957 in Book 652 at Page 159 in the office of the Clerk

and Recorder for Adams County, CoLorado, August 28,

19S7 in Book 672 at Page 76 in the office of the Clerk and

Recorder for Adams County, Colorado, and April 17, 1970

in Book 2230 at Page 307 in the office of the Clerk and

Recorder for Adams County, Colorado.

Subject to:

1. Right of way as granted to Panhandle Eastern Pipe

Line Company in instrument recorded October 8, 1980

in Book 2497 at Page 923 in the office of the Clerk and

Recorder for Adams County, Colorado.

2. An Easement as granted to Koch Industries, Inc., in

instrument recorded July 17, 1972 in Book 1807 at Page

416 in the office of the Clerk and Recorder for Adams

County, Colorado. (Affects N½.)

3. Right of way as granted to Panhandle Eastern Pipe

Line Company in instrument recorded January 22, 1974

in Book 1910 at Page 210 in the office of the Clerk and

Recorder for Adams County, Colorado. (Affects W½.)

4. Right of way as granted to Phillips Petroleum

Company in instrument recorded July 21, 1971 in Book

1716 at Page 349 in the office of the Clerk and Recorder

for Adams County, Colorado. (Affects NW¼.)

5. The rights, title and interests of the City and County

of Denver for road, public highway, right of way, and

statutory purposes in and to a tract of land located in

40a

Appendix B

the South of Section 21, T25, R65W of the 6th P.M., City

and County of Denver, Colorado, being more particularly

described as follows: Considering the South line of the

SW¼ of said Section 21 as bearing N89°51'03"W and with

all bearings contained within this description are relative

thereto. The Southeast corner and the S½ corner of said

Section 21 are monumented by 1½” Brass Caps with no

markings on caps. Beginning at the Southeast corner of

said Section 21; thence along the South line of the SE¼ of

said Section 21 N89°51'03"W a distance of 2647.20 feet to

the 5¼ corner of said Section 21; thence along the South

Line of the SW½ of said Section 21 N89°50'53"W a distance

of 2617.90 feet to a point on said south line that is 30.00

feet from the Southwest corner of said Section 21; thence

departing from said South line N00°27’ 59"W a distance

of 29.32 feet; thence :572°31'00-E a distance of 16.13 feet;

thence N88°39'30"E a distance of 413.54 feet: thence

589°36’ 43"E a distance of 662.05 feet; thence S89°55'03" a

distance of 1699.92 feet; thence S89°49'39"E a distance of

1R86.47 feet: thence 389°35'35"E a distance of 416.61 feet;

thence S87°18'26"E a distance of 267.15 feet; thence 56.09

feet along the arc of a curve concave to the Northwest,

said curve has a delta angle of 91°48’’17", a radius of 35.00

feet and is subtended by a chord which bears N46°47'11"E

a distance of 50.27 feet; thence N00°52'47"E a distance

of 267.15 feet to a point on the East line of said section

21; thence along said East line S00°43'55"E a distance of

328.05 feet to the Southeast corner of said Section 21, said

point being POINT OF BEGINNING.

6. Terms, conditions and provisions of Surface Owners

Agreements recorded March 25, 1957 in Book 652 at Page

159 in the office of the Clerk and Recorder for Adams

41a

Appendix B

County, Colorado (affects NW¼), August 28. 1957 in Book

672 at Page 76 in the office of the Clerk and Recorder for

Adams County, Colorado (affects NE¼) and April 17, 1978

in Book 2230 at Page 307 in the office of the Clerk and

Recorder for Adams County, Colorado.

7. Reservations as contained in Deed from Box Elder

Farms Co. recorded December 6, 1949 in Book 385 at

Page 324 in the office of the Clerk and Recorder for Adams

County, Colorado as follows:

Box Elder Farms Co. excepts and reserves to

itself, its successors and assigns all the oil, gas

and other subsurface minerals of whatsoever

nature or description in and under said lands,

with the exclusive right to prospect for and

exploit the same, and sufficient use of the

surface thereof, and the right to lay, maintain

and operate pipe lines for oil and gas, and to

erect, maintain and operate telephone and

telegraph lines with the right reserved to

remove any buildings, machinery, pipe lines

or other property erected or placed on said

land in connection therewith, such pipe lines,

telephone and telegraph lines and the use of

the surface, however, not to infringe upon or

interfere with any improvements upon said

land without payment of a reasonable amount

for any damage caused thereby.

Box Elder Farms Co., for itself and for its

successors and assigns, retains and reserves

42a

Appendix B

the sole and exclusive right to lease said land

or any part thereof for oil, gas and other

minerals reserved to and owned by it; provided,

however, that the grantees, their successors

and assignees, shall be entitled to receive

one-half of the not proceeds of all bonuses and

rentals paid under any such lease or leases after

deducting the cost and expenses in connection

with the granting of any such lease; provided

also, the parties of the Second Part, their

heirs, successors and assigns, shall be entitled

to one-half or the Landowner’s Royalty paid

under any such lease or leases, which one-half

royalty may be paid direct to parties of the

Second Part, their heirs, successors and assigns

by any lessee.

8. Reservation contained in Deed from The Union Pacific

Land Co. to Walter R. Graves recorded April 13, 1909 in

Book 25 at Page 214 in the office of the Clerk and Recorder

for Adams County, Colorado as follows:

All oil, coal and other minerals within or

underlying said lands. The exclusive right to

prospect in and upon said land for coal and other

minerals therein, or which may be therein, and

to mine for the removal from said land, all coal

and other minerals which may be found thereon

by any one. The right of ingress, egress and

regress upon said land to prospect for, mine and

remove any and all such coal or other minerals,

and the right to use so much of said land as

43a

Appendix B

may be convenient or necessary for the right

of way to and from prospect places or mines

and for the convenient and proper operation of

such prospect places, mines and for roads and

approaches thereto or for removal therefrom of

all coal, machinery or other material. The right

to Union Pacific Railroad Company to maintain

and operate its railroad in its present form of

construction, and to make any change in the

form of construction or method of operation of

said railroad.

Parcel 8

Section 22, Township 2 South, Range 65 West of the 6th

P.M., City and County of Denver, State of Colorado.

Together with:

Right of any proprietor of a vein or lode to extract and

remove his ore therefrom, should the same be found to

penetrate or intersect the premises hereby granted, as

reserved in the following United States Patents: (a) as

recorded May 4, 1897 in Book A24 at Page 517 in the office

of the Clerk and Recorder for Adams County, Colorado

(effects SW¼, and (b) as recorded September 6, 1902

in Book A41 at page 457 in the office of the Clerk and

Recorder for Adams County, Colorado (affects SE¼).

Right of any proprietor of a vein or lode to extract and

remove his ore therefrom should the same be found to

penetrate or intersect the premises as reserved in the

44a

Appendix B

following United States Patents: (a) recorded September

20, 1901 in Book A41 at Page 410 in the office of the Clerk

and Recorder for Adams County, Colorado (affects NE¼),

and (b) recorded June 2, 19O1 in Book 25 at Page 487 in

the office of the Clerk and Recorder for Adams County,

Colorado (affects NW¼).

All the rights, title and interests of Monaghan Farms,

Inc. in, to and under the Oil and Gas Lease between

Monaghan Farms, Inc. and Koch Industries, Inc. recorded

April 8, 1969 in Book 1507 at Page 94 in the office of the

Clerk and Recorder for Adams County, Colorado, and any

amendments or extensions thereof.

Subject to:

1. The rights, title and interests of the City and County

of Denver for road, public highway, right of way, and

statutory purposes in and to the East 30 feet of said

Section, and the South 30 feet of said Section.

2. The rights, title and intetests, if any, of the City and

County of Denver for road, public highway, right of way,

and statutory purposes in and to a tract of land located

in the W½ of Section 22, T2S, R6SW of the 6th P.M., City

and County of Denver, Colorado, being more particularly

described as follows: Considering the West line of the

NW¼ of said Section 22 as bearing N00°43'05"W and with

all bearings ontained within this description are relative

thereto. The Northwest corner of the West quarter corner

of said Section 22 are monumented by 1 ½" Brass Caps

with no markings on caps. Beginning at the Northwest

corner of said Section 22; thence along the West line of

45a

Appendix B

the NW¼ of said Section 22 S00°43'05"E a distance of

2643.23 feet to the West quarter corner of said Section 22;

thence along the West line of the SW¼ of said Section 22

S00°43'55"E a distance of 2613.28 feet to a point on said

West line that is 30.00 feet from the Southwest corner

of said Section 22; thence departing from said West line

N89°51'07"E a distance of 27.91 feet; thence 1100°13'17"W

a distance of 379.53 feet; thence N00°24'56"E a distance

of 253.34 feet; thence NO1°49'49"E a distance of 82.96

feet; thence NO1°27'20"E a distance of 454.06 feet; thence

N00°09'00"E a distance of 344.74 feet; thence N00°50'27"W

a distance of 1653.98 feet; thence NO1°10'43"W a distance

of 305.23 feet; thence NO1°37'08"W a distance of 363.82

feet; thence N00°27'39"W a distance of 674.04 feet; thence

N00°12'44"E a distance of 745.15 feet to a point on the

North line of said Section 22; thence along said North

line 589°48'40"W a distance of 66.41 feet to the Northwest

corner of said Section 22; said point being the Point of

Beginning.

3. A reser ved right of way for ditches or canals

constructed by authority of the United States, as reserved

in the following United States Patents; (a) as recorded

May 4, 1897 in Book A24 at Page 517 in the office of the

Clerk and Recorder for Adams County, Colorado (affects

SW¼), and (b) as recorded September 6, 1902 in Book

A41 at Page 457 in the office of the Clerk and Recorder

for Adams County, Colorado (affects SE¼).

4. Oil and Gas Lease between Monaghan Farms, Inc.

and Koch Industries, Inc. recorded April 8, 1969 in Book

1507 at Page 94 in the office of the Clerk and Recorder for

Adams County, Colorado. (affects E½ NW¼.)

46a

Appendix B

5. Reservation as contained in Deed from Box Elder

Farms Co. to J. H. Monaghan and N. M. Monaghan

recorded December 5, 1951 in Book 432 at Page 156 in

the office of the Clerk and Recorder for Adams County,

Colorado as follows:

Excepting and reserving unto the grantor, its

successors and assigns all the oil, gas and other

subsurface minerals of whatsoever nature or

description in and under said lands, with the

exclusive rights to prospect for and exploit the

same, and sufficient use of the surface thereof,

and the right to lay, maintain and operate pipe

lines for oil and gas and to erect, maintain and

operate telephone and telegraph lines with

the right reserved to remove any building,

machinery, pipelines or other property erected

or placed on said land in connection therewith,

such pipe lines, telephone and telegraph

lines and the use of the surface, however,

not to infringe upon or interfere with any

improvements upon said land without payment

of a reasonable amount for any damage caused

thereby. (Affects all except the E½ NW¼ of

said Section 22.)

Parcel 9

The South one-half of Section 13, Township 2 South, Range

66 West of the 6th P.M., a portion of which is located in

the City and County of Denver and a portion of which is

located in the County of Adams, State of Colorado.

47a

Appendix B

Subject to:

1. An Easement as granted to Thomas G. Vessels in

instrument recorded August 2, 1973 in Book 1879 at Page

609 in the office of the Clerk and Recorder for Adams

County, Colorado.

2. Reservations as contained in Deed from Box Elder

Farms Co. recorded December 6, 1949 in Book 385 at Page

324 in the office of the Clerk and Recorder for Adams

County, Colorado as follows:

Box Elder Farms Co. excepts and reserves to

itself, its successors and assigns all the oil, gas

and other subsurface minerals of whatsoever

nature or description in and under said lands,

with the exclusive right to prospect for and

exploit the same, and sufficient use cif the

surface thereof, and the right to lay, maintain

and operate pipe lines for oil and gas, and to

erect, maintain and operate telephone and

telegraph lines with the right reserved to

remove any buildings, machinery, pipe lines

or other property erected or placed on said

land in connection therewith, such pipe lines,

telephone or telegraph lines and the use of

the surface, however, not to infringe upon or

interfere with any improvements upon said

land without payment of a reasonable amount

for any damage caused thereby.

Box Elder Farms Co., for itself and for its

successors and assigns, retains and reserves

48a

Appendix B

the sole and exclusive right to lease said land

or any part thereof for oil, gas and other

minerals reserved to and owned by it; provided,

however, that the grantees, their successors and

assignees, shall be entitled to receive one-half

of the net proceeds of all bonuses and rentals

paid under any ouch lease or leases after

deducting the cost and expenses in connection

with the granting of any such lease; provided

also, the parties of the second part, their heirs,

successors and assigns, shall be entitled to

one-half of the landowner’s royalty paid under

any such lease or leases, which one-half royalty

may be paid direct to parties of the second

part, their heirs, successors and assigns by any

lessee. (Affects S½.)

Parcel 10

Section 16, Township 2 South, Range 65 West of the 6th

P.M., City and County of Denver, State of Colorado except

the following:

(A)

The West 210 feet thereof

(B) A tract of land situate in the NW¼

NW¼, of said Section 16, Township 2 South,

Range 65 West, 6th Principal Meridian, more

particularly described as follows: Beginning

at the Northwest corner of said Section 16;

thence south along the West boundary line

of said Section 16, a distance of 1125 feet to a

49a

Appendix B

point; thence easterly parallel with the north

boundary line of said Section 16, a distance of

855 feet to a point; thence northerly parallel

with the West boundary line of said Section

16, a distance of 1125 feet more or less to the

north boundary Line of said Section 16; thence

westerly along the north boundary line of said

Section 15, a distance of 855 feet more or less

to the point of beginning.

Subject to:

1. Right of way as granted to Phillips Petroleum

Company in instrument recorded July 21, 1971 in Book

1716 at Page 349 in the office of the Clerk and Recorder

for Adams County, Colorado. (Affects W½.)

2 An easement as granted to Koch Industries, Inc. in

instrument recorded July 17, 1972 in Book 1807 at Page

416 in the office of the Clerk and Recorder for Adams

County, Colorado. (Affects SW¼.)

3. Right of way as granted to Panhandle Eastern Pipe

Line Company in instrument recorded April 22, 1975

in Book 1989 at Page 268 in the office of the Clerk and

Recorder for Adams County, Colorado.

4. Right of way as granted to Panhandle Eastern Pipe

Line Company in instrument recorded October 8, 1980

in Book 2497 at Page 923 in the office of the Clerk and

Recorder for Adams County, Colorado.

50a

Appendix B

5. Reservations as contained in Deed from Box Elder

Farms Co. recorded December 6, 1949 in Book 385 at

Page 324 in the office of the Clerk and Recorder for Adams

County, Colorado as follows:

Box Elder Farms Co. excepts and reserves to

itself, its successors and assigns all the oil, and

other subsurface minerals of whatsoever nature

or description in and under said lands, with the

exclusive right to prospect for and exploit the

same, and sufficient use of the surface thereof,

and the right to lay, maintain and operate pipe

lines for oil and gas, and to erect, maintain

and operate telephone and telegraph lines with

the right reserved to remove any buildings,

machinery, pipe lines or other property erected

or placed on said land in connection therewith,

such pipe lines, telephone or telegraph lines and

the use of the surface, however, not to infringe

upon or interfere with any improvements upon

said land without payment of a reasonable

amount for any damage caused thereby.

Box Elder Farms Co., for itself and for its

successors and assigns, retains and reserves

the sole and exclusive right to lease said land

or any part thereof for oil, gas and other

minerals reserved to and owned by it; provided,

however, that the grantees, their successors

and assignees, shall be entitled to receive

one-half of the net proceeds of all bonuses and

rentals paid under any such lease or leases after

deducting the cost and expenses in connection

51a

Appendix B

with the granting of any such lease; provided

also, the parties of the second part, their hairs,

successors and assigns, shall be entitled to

one-half of the landowner’s royalty paid under

any such lease or leases, which one-half royalty

may be paid direct to parties of the second

part, their heirs, successors and assigns by

any lessee.

6. All rights to any and all minerals, ore and metals of

any kind and character, and all coal, asphaltum, oil, gas

and other like substances in or under said land, the rights

of ingress and egress for the purpose of mining, together

with enough of the surface of the same as may be necessary

for the proper and convenient working of such minerals

and substances, as reserved in the following Patents from

the State of Colorado: (a) in document recorded March 26,

1910 in Book 48 at Page 200 in the office of the Clerk and

Recorder for Adams County, Colorado (affects SE¼); (b)

in document recorded March 26, 1910 in Book 48 at Page

201 in the office of the Clerk and Recorder for Adams

County, Colorado (affects SW¼); (c) in document recorded

March 26, 1910 in Book 48 at Page 201 in the office of the

Clerk and Recorder for Adams County, Colorado (affects

NW¼); and (d) in document recorded March 26, 1910 in

Book 48 at Page 202 in the office of the Clerk and Recorder

for Adams County, Colorado (affects NE¼).

Parcel 11

Section 15, Township 2 South. Range 65 West of the 6th

P.M.. City and County of Denver, State of Colorado.

52a

Appendix B

Together with:

All “Surface Owner’s” rights and privileges identified in

the Surface Owners Agreements recorded February 11,

1972 in Book 1780 at Page 522 and November 19, 1975

in Book 2028 at Page 372 in the office of the Clerk and

Recorder for Adams County, Colorado.

Subject to:

1. Right of way as granted to Panhandle Eastern Pipe

Line Company in instrument recorded October 8, 1980

in Book 2497 at Page 923 in the office of the Clerk and

Recorder for Adams County, Colorado

2. Right of way as granted to Panhandle Eastern Pipe

Line Company in instrument recorded April 22, 1975

in Book 1989 at Page 268 in the office of the Clerk and

Recorder for Adams County, Colorado.

3. The rights, title and interests of the City and County

of Denver for road, public highway, right of way, and other

statutory purposes in and to the East 30’ of said Section.

4. The rights, title and interests, if any, of the City and

County of Denver for road, public highway, right of way,

and other otatutory purposes in and to a tract of land

located in the W½ of Section 15, T2S, R65W of the 6th

P.M., City and County of Denver, Colorado, being more

particularly described as follows: Considering the West

line of the SW¼ of said Section 15 as bearing S00°10'47"E

and with all bearings contained within this description

are relative thereto. The Southwest corner and the West

53a

Appendix B

quarter corner of said Section 15 are monumented by

1 ½" Brass Caps with no markings on caps. Beginning

at the Southwest corner of said Section 15; thence along

the West line of the SW¼ of said Section 15 N00°10'47"W

a distance of 2643.38 feet to the West quarter corner of

said Section 15: thence along the West line of the NW¼ of

said Section 15 N00°10'44"W a distance of 2643.64 feet to

the Northwest corner of said Section 15, said point, being

monumented by a 1 ½" Brass Cap with no markings on cap;

thence along the North line of the NW¼ of said Section

15 N89°47'48"E a distance of 24.00 feet; thence departing

from said North line S00°07'37"E a distance of 589.58

feet; thence S00°35'32"E a distance of 3920.04 feet; thence

SO1°18'16"E a distance of 756.12 feet; thence 500'12'44"W

a distance of 21.52 feet to a point on the South line of said

Section 15; thence along said South line S89°48'40"W a

distance of 66.41 feet to the Point of Beginning.

5. Terms, conditions and provisions of Surface Owners

Agreements recorded February 11, 1972 in Book 1780

at Page 522 in the office of the Clerk and Recorder for

Adams County, Colorado; and November 10, 1975 in Book

2028 at Page 372 in the office of the Clerk and Recorder

for Adams County, Colorado.

6. Reservation contained in Deed from The Union Pacific

sand Co. to K. McKenzie recorded February 18, 1909 in

Book 25 at Page 212 in the Office of the Clerk and Recorder

for Adams County, Colorado as follows:

All oil, coal and other minerals within or

underlying said lands. The exclusive right to

prospect in and upon said land for coal and other

54a

Appendix B

minerals therein, or which may be therein, and

to mine for the removal from said land, all coal

and other minerals which may be found thereon

by any one. The right of ingress, egress and

regress upon said land to prospect for, mine and

remove any and all such coal or other minerals,

and the right to use so much of said land as

may be convenient or necessary for the right

of way to and from prospect places or mines

and for the convenient and proper operation of

such prospect places, mines and for roads and

approaches thereto or for removal therefrom of

all coal, machinery or other material. The right

to Union Pacific Railroad Company to maintain

and operate its railroad in its present form of

construction, and to make any change in the

form of construction or method of operation of

said railroad.

7. Reservations as contained in Deed from Box Elder

Farms Co. recorded December 6, 1949 in Book 385 at

Page 324 in the office of the Clerk and Recorder for Adams

County, Colorado as follows:

Box Elder Farms Co. excepts and reserves to

itself, its successors and assigns all the oil, gas

and other subsurface minerals of whatsoever

nature or description in and under said lands,

with the exclusive right to prospect for and

exploit the same, and sufficient use of the

surface thereof, and the right to lay, maintain

and operate pipe lines for oil and gas, and to

erect, maintain and operate telephone and

telegraph lines with the right reserved to

55a

Appendix B

remove any buildings, machinery, pipe lines

or other property erected or placed on said

land in connection therewith, such pine lines,

telephone or telegraph lines and the use of

the surface, however, not to infringe upon or

interfere with any improvements upon said

land without payment of a reasonable amount

for any damage caused thereby.

Box Elder Farms Co., for itself and for its

successors and assigns, retains and reserves

the sole and exclusive right to lease said land

or any part thereof for oil, gas and other

minerals reserved to and owned by it; provided,

however, that the grantees, their successors

and assignees, shall be entitled to receive

one-half of the net proceeds of all bonuses and

rentals paid under any such lease or leases after

deducting the cost and expenses in connection

with the granting of any such lease; provided

also, the parties of the second part, their heirs,

successors and assigns, shall be entitled to

one-half of the landowner’s royalty paid under

any such lease or leases, which one-half royalty

may be paid direct to parties of the second

part, their heirs, successors and assigns by

any Lessee.

Parcel 12

Section 9, Township 2 South, Range 65 West of the 6th

P M., City and County of Denver, State of Colorado,

excepting therefrom the West 210 feet.

56a

Appendix B

Together with:

All “Surface Owner’s” rights and privileges identified in

the Surface Owner’s Agreement recorded February 11,

1972 in Book 1780 at Page 522 in the office of the Clerk

and Recorder for Adams County, Colorado.

Subject to:

1. Right of way as granted to Panhandle Eastern Pipe

Line Company in Instrument recorded October 8, 1980

in book 2497 at Page 923 in the office of the Clerk and

Recorder for Adams County, Colorado.

2. Right of way as granted to Panhandle Eastern Pipe

Line Company in instrument recorded January 22, 1974

in Book 1910 at Page 210 in the office of the Clerk and

Recorder for Adams County, Colorado.

3. Right of way as granted to Phillips Petroleum

Company in instrument recorded July 21, 1971 in Book

1716 at Page 349 in the office of the Clerk and Recorder

for Adams County, Colorado.

4. Right of way as granted to Koch Industries, Inc. in

instrument recorded July 17, 1972 in Book 18O7 at Page

419 in the office of the Clerk and Recorder for Adams

County, Colorado. (Affects S½.)

5. Terms, conditions and provisions of Surface Owners

Agreements to Champlin Petroleum Company recorded

February 11, 1972 in Book 1780 at Page 522 in the office

of the Clerk and Recorder for Adams County, Colorado.

57a

Appendix B

6. Reservation as set forth in Deed from The Union

Pacific Land Company to Benjamin T. Harrison and

William T. Bauns recorded March 23, 1908 in Book 25 at

Page 197 in the office of the Clerk and Recorder for Adams

County, Colorado as follows:

All oil, coal and other minerals within or

underlying said lands. The exclusive right to

prospect in and upon said land for coal and other

minerals therein, or which may be therein, and

to mine for the removal from said land, all coal

and other minerals which may be found thereon

by any one. The right of ingress, egress and

regress upon said land to prospect for, mine and

remove any and all such coal or other minerals,

and the right to use so much of said land as

may be convenient or necessary for the right

of way to and from prospect places or mines

and for the convenient and proper operation

of such prospect places, mines and roads and

approaches thereto or for removal therefrom of

all coal, machinery or other material. The right

to Union Pacific Railroad Company to maintain

and operate its railroad in its present form of

construction, and to make any change in the

form of construction or method of operation of

said railroad.

7. Reservations as contained in Deed from Box Elder

Farms Co. recorded December 6, 1949 in Book 385 at

Page 324 in the office of the Clerk and Recorder for Adams

County, Colorado as follows:

58a

Appendix B

Box Elder Farms Co. excepts and reserves to

itself, its successors and assigns all the oil, gas

and other subsurface minerals of whatsoever

nature or description in and under said lands,

with the exclusive right to prospect for and

exploit the same, and sufficient use of the

surface thereof, and the right to lay, maintain

and operate pipe lines for oil and gas, and to

erect, maintain and operate telephone and

telegraph lines with the right reserved to

remove any buildings, machinery. pipe lines

or other property erected or placed on said

land in connection therewith, such pipe lines,

telephone And telegraph lines and the use of

the surface, however, not to infringe upon or

interfere with any improvements upon said

land without payment of a reasonable amount

for any damage caused thereby.

Box Elder Farms Co., for itself and for its

successors and assigns, retains and reserves

the sole and exclusive right to lease said land

or any part thereof for oil, gas and other

minerals reserved to and owned by it; provided,

however, that the grantees, their successors

and assignees, shall be entitled to receive

one-half of the net proceeds of all bonuses and

rentals paid under any such lease or leases after

deducting the cost and expenses in connection

with the granting of any such lease; provided

also, the parties of the Second Part, their

heirs, successors and assigns, shall be entitled

59a

Appendix B

to one-half of the Landowner’s Royalty paid

under any such lease or leases, which one-half

royalty may be paid direct to parties of the

Second Part, their heirs, successors and assigns

by any lessee.

Parcel 13

Section 10, Township 2 South, Range 65 West of the 6th

P.M., City and County of Denver, State of Colorado.

Together with:

Right of any proprietor of a vein or lode to extract and

remove his ore therefrom, should the same be found to

penetrate or intersect the premises hereby granted as

reserved in United States Patent recorded May 18, 1892

in Book A25 at Page 441 in the office of the Clerk and

Recorder for Adams County, Colorado. (Affects NW¼.)

Right of any proprietor of a vein or lode to extract and

remove his ore therefrom should the same be found to

penetrate or intersect the premises as reserved in the

following United States Patents: (a) recorded May 18,

1892 in Book A24 at Page 179 in the office of the Clerk and

Recorder for Adams County, Colorado (affects NE¼); (b)

recorded June 2. 1892 in Book A24 at Page 184 in the office

of the Clerk and Recorder for Adams County, Colorado

(affects SE¼); and (c) recorded May 10, 1895 in Book A24

at Page 4O8 in the office of the Clerk and Recorder for

Adams County, Colorado (affects SW¼).

60a

Appendix B

Subject to:

1. Right of way as granted to Phillips Petroleum

Company in an Instrument recorded July 21, 1971 in Book

1716 at Page 349 in the office of the Clerk and Recorder

for Adams County, Colorado. (Affects NW¼.)

2. Right of way as granted to Koch Industries, Inc. in an

instrument recorded July 17, 1972 in Book 1807 at Page

419 in the office of the Clerk and Recorder for Adams

County, Colorado. (Affects S½.)

3. Right of way as granted to Panhandle Eastern Pipe

Line Company in instrument recorded October 5, 1980

in Book 2497 at Page 923 in the office of the Clerk and

Recorder for Adams County, Colorado.

4. The rights, title and interests of the City and County

of Denver for road, public highway, right of way, and

other statutory purposes in and to the East 30 feet of

said Section.

5. The rights, title and interests, if any, of the City and

County of Denver for road, public highway, right of way,

and other statutory purposes in and to a tract of land

located in the W½ of Section 10, T2S, R65W of the 6th

P.M., City and County of Denver, Colorado, being more

particularly described as follows: Considering the West

line of the SW¼ of said Section 10 as bearing N00°57'13"W

and with all bearings contained within this description

are relative thereto. The Southwest corner and the West

quarter corner of said Section 10 are monumented by 1 ½"

61a

Appendix B

Brass Caps with no markings on caps. Beginning at the

Southwest corner of said Section 10; thence along the West

line of the SW¼ of said Section 10 N00°57'11"W a distance

of 2643.40 feet to the West quarter corner of said Section

10; thence along the West Line of the W¼ of said Section

In N00°57'13"W a distance of 2613.41 feet to a point on

said West line that is 30 feet from the Northwest corner

of said Section 10; thence departing from said West line

N89°44'36"E a distance of 86.71 feet; thence 73.82 feet

along the arc of a curve concave to the Southeast, said

curve has a delta angle of 63°47'28", a radius of 66.30 feet

and is subtended by a chord which bears S30°40'30"W a

distance of 70.O6 feet; thence S01°13'15"E a distance of

600.23 feet; thence S00°S0'08"E a distance of 1164.94

feet; thence 500°29'36"E a distance of 3226.86 feet to a

point on the South line of said Section 10; thence along

said South line S89°47'48"W a distance of 24.00 feet to the

Southwest corner of said Section 10, said point being the

Point of Beginning.

6. A reser ved right of way for ditches or canals

constructed by authority of the United States, as reserved

in United States Patent recorded May 18, 1892 in Book

A25 at Page 441 in the office of the Clerk and Recorder

for Adams County, Colorado. (Affects NW¼.)

7. Reservations contained in Deed from Box Elder

Farms Co. to J. H. Monaghan and N. M. Monaghan

recorded December 6, 1949 in Book 385 at Page 324 in

the office of the Clerk and Recorder for Adams County,

Colorado.

62a

Appendix B

Box Elder Farms Co. excepts and reserves to

itself, its successors and assigns all the oil, gas

and other subsurface minerals of whatsoever

nature or description in and under said lands,

with the exclusive right to prospect for and

exploit the same and sufficient use of the

surface thereof, and the right to lay, maintain,

and operate pipeline for oil and gas, and to

erect, maintain, and operate telephone and

telegraph lines with the right reserved to

remove any buildings, machinery, pipe lines

or other property erected or placed on said

land in connection therewith, such pipe lines,

telephone and telegraph lines and the use of

the surface, however, not to infringe upon or

interfere with any improvements upon said

land without payment of a reasonable amount

for any damage caused thereby.

Box Elder Farms Co., for itself and for its

successors and assigns, retains and reserves

the sole and exclusive right to lease said land

or any part thereof for oil, gas and other

minerals reserved to and owned by it; provided,

however, that the grantees, their successors

and assignees, shall be entitled to receive

one-half of the net proceeds of all bonuses and

rentals paid under any such lease or leases after

deducting the cost and expenses in connection

with the granting of any such lease; provided

also, the parties of the second part, their heirs,

successors and assigns, shall be entitled to

63a

Appendix B

one-half of the landowner’s royalty paid under

any such lease or leases, which one-half royalty

may be paid direct to parties of the second

part, their heirs, successors and assigns by

any lessee.

Parcel 14

E½ and NW¼ of Section 4, Township 3 South, Range

65 West of the 6th P.M., a portion of which is located in

the City and County of Denver and a portion of which

is located in the County of Adams, State of Colorado,

excepting therefrom the West 210 feet of the NW¼ of

said Section.

Together with:

Right of any proprietor of a vein or lode to extract and

remove his ore therefrom, should the same be found to

penetrate or intersect the premises hereby granted,

as reserved in the following United States patents: (a)

recorded April 13, 1915 in Book 68 at Page 170 in the office

of the Clerk and Recorder for Adams County, Colorado

(affects NE¼), and (b) recorded May 27, 1910 in Book 25

at Page 533 in the office of the Clerk and Recorder for

Adams County, Colorado (affects SE¼).

Right of any proprietor of a vein or lode to extract and

remove his ore therefor should the same be found to

penetrate or intersect the premises as reserved in United

States Patent recorded March 17, 1909 in Book 25 at Page

508 in the office of the Clerk and Recorder for Adams

County, Colorado. (Affects NW¼).

64a

Appendix B

Subject to:

1. Right of way as granted to Panhandle Eastern Pipe

Line Company in instrument recorded January 22, 1974

in Book 1910 at Page 210 in the office of the Clerk and

Recorder for Adams County, Colorado.

2. The rights, title and interests of the City and County

of Denver in and to the East 30 feet of said section and

the North 30 feet of said section for road, public highway,

right of way, and other statutory purposes.

3. A reser ved right of way for ditches or canals

constructed by authority of the United States, as reserved

in the following United States Patents: (a) recorded April

13, 1915 in Book 68 at Page 170 in the office of the Clerk

and Recorder for Adams County, Colorado (affects NE¼),

and (b) recorded May 27, 1910 in Book 25 at Page 533 in

the office of the Clerk and Recorder for Adams County,

Colorado (affects SE¼).

4. Reservations contained in Deed from Box Elder

Farms Co. to J. H. Monaghan and N. M. Monaghan

recorded December 6, 1949 in Book 385 at Page 324 in

the office of the Clerk and Recorder for Adams County,

Colorado.

Box Elder Farms Co. excepts and reserves to

itself, its successors and assigns all the oil, gas

and other subsurface minerals of whatsoever

nature or description in and under said lands,

with the exclusive right to prospect for and

exploit the same and sufficient use of the

65a

Appendix B

surface thereof, and the right to lay, maintain,

and operate pipeline for oil and gas, and to

erect, maintain, and operate telephone and

telegraph lines with the right reserved to

remove any buildings, machinery, pipe lines

or other property erected or placed on said

land in connection therewith, such pipe lines,

telephone and telegraph lines and the use of

the surface, however, not to infringe upon or

interfere with any improvements upon said

land without payment of a reasonable amount

for any damage caused thereby.

Box Elder Farms Co., for itself and for its

successors and assigns, retains and reserves

the sole and exclusive right to lease said land

or any part thereof for oil, gas and other

minerals reserved to and owned by it, provided

however, that the grantees, their successors

and assignees, shall be entitled to receive

one-half of the net proceeds of all bonuses and

rentals paid under any such lease or leases after

deducting the cost and expenses in connection

with the granting of any such lease; provided

also, the parties of the second part, their heirs,

successors and assigns, shall be entitled to

one-half of the landowner’s royalty paid under

any such lease or leases, which one-half royalty

may be paid direct to parties of the second

part, their heirs, successors and assigns by any

lessee. (Affects S½ and NW¼).)

66a

Appendix B

Parcel 15

N½ of Section 5, Township 3 South, Range 65 west of

the 6th P.M., a portion of which is located in the City and

County of Denver and a portion of which is located in the

County of Adams, State of Colorado.

Together with:

All “Surface Owner’s” rights and privileges identified in

the Surface Owner’s Agreement recorded July 8, 1979

in Book 2363 at Page 880 in the office of the Clerk and

Recorder for Adams County, Colorado.

Subject to:

1. The rights, title and interests of the City and County

of Denver and Adams County in and to the East 30 feet

of said Section for road, public highway, right of way, and

other statutory purposes.

2. Terms, conditions and provisions of the Surface

Owners Agreement recorded July 8, 1979 in Book 2363

at Page 880 in the office of the Clerk and Recorder for

Adams County, Colorado,

3. Reservation as set forth in Deed from Union Pacific

Land Company to Watkins Real Estate and investment

Company recorded December 18, 1907 in Book 25 at Page

190 in the office of the Clerk and Recorder for Adams

County, Colorado as follows:

67a

Appendix B

All oil, coal and other minerals within or

underlying said lands. The exclusive right to

prospect in and upon said land for coal and other

Minerals therein, or which may be therein, and

to mine for the removal from said land, all coal

and other minerals which may be found thereon

by any one. The right of ingress, egress and

regress upon said land to prospect for, mine and

remove any and all such coal or other minerals,

and the right to use so much of said land as

may be convenient or necessary for the right

of way to and from prospect places or mines

and for the convenient and proper operation

of such prospect places, mines and roads and

approaches thereto or for removal therefrom of

all coal, machinery or other material. The right

to Union Pacific Railroad Company to maintain

and operate its railroad in its present form of

construction, and to make any change in the

form of construction or method of operation of

said railroad.

4. Reservations as contained in Deed from Box Elder

Farms Co. recorded December 6, 1949 in Book 385 at

Page 324 in the office of the Clerk and Recorder for Adams

County as follows:

Box Eider Farms Co. excepts and reserves to

itself, its successors And Assigns all the oil, gas

and other subsurface minerals of whatsoever

nature or description in and under said lands,

with the exclusive right to prospect for and

68a

Appendix B

exploit the same, and sufficient use of the

surface thereof, and the right to lay, maintain

and operate pipe lines for oil and gas, and to

erect, maintain and operate telephone and

telegraph lines with the right reserved to

remove any buildings, machinery, pipe lines

or other property erected or placed on said

land in connection therewith, such pipe lines,

telephone and telegraph lines and the use of

the surface, however, not to infringe upon or

interfere with any improvements upon ‘aid land

without payment of a reasonable amount for any

damage caused thereby.

Box Elder Farms Co., for itself and for its

successors and assigns, retains and reserves

the sole and exclusive right to lease said land

or any part thereof for oil, gas and other

minerals reserved to and owned by it; provided,

however, that the grantees, their successors

and assignees, shall be entitled to receive

one-half of the net proceeds of all bonuses and

rentals paid under any such lease or leases after

deducting the cost and expenses in connection

with the granting of any such lease; provided

also, the parties of the Second Part, their heirs,

successors and assigns, shall be entitled to onehalf of the Landowner’s Royalty paid under

any such lease or leases, which one-half royalty

may be paid direct to parties of the Second

Part, their heirs, successors and assigns by any

lessee. (Affects N½ and SE¼.)

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Appendix B

Parcel 16

E½ of Section 9, Township 3 South, Range 65 West of the

6th P.M., County of Adams, State of Colorado.

Subject to:

1. Right or way as granted to Panhandle Eastern Pipe

Line Company in Instrument recorded January 22, 1974

in Book 1910 at Page 210 in the office of the Clerk and

Recorder for Adams County, Colorado.

2. The rights, title and interests of Adams County in and

to the East 30 feet of said Section for road, public highway,

right of way, and other statutory purposes.

3. Reservations as contained in Deed from Box Elder

Farms Co. recorded December 6, 1949 in Book 385 at

Page 324 in the office of the Clerk and Recorder for Adams

County, Colorado as follows:

Box Elder Farms Co. excepts and reserves to

itself, its successors and assigns all the oil, gas

and other subsurface minerals of whatsoever

nature or description in and under said lands,

with the exclusive right to prospect for and

exploit the same, and sufficient use of the

surface thereof, and the right to lay, maintain

and operate pipe lines for oil and gas, and to

erect, maintain and operate telephone and

telegraph lines with the right reserved to

remove any buildings, machinery, pipe lines

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Appendix B

or other property erected or placed on said

land in connection therewith, such pipe lines,

telephone and telegraph lines and the use of

the surface, however, not to infringe upon or

interfere with any improvements upon said

land without payment of a reasonable amount

for any damage caused thereby.

Box Elder Farms Co., for itself and for its

successors and assigns, retains and reserves

the sole and exclusive right to lease said land

or any part thereof for oil, gas and other

minerals reserved to and owned by it; provided,

however, that the grantees, their successors

and assignees, shall be entitled to receive

one-half of the net proceeds of all bonuses and

rentals paid under any such lease or leases after

deducting the cost and expenses in connection

with the granting of any such lease; provided

also, the parties of the Second Part, their heirs,

successors and assigns, shall be entitled to onehalf of the Landowner’s Royalty paid under

any such lease or leases, which one-half royalty

may be paid direct to parties of the Second

Part, their heirs, successors and assigns by any

lessee. (Affects SE¼.)

4. Reservation as contained in Deed from Kansas Pacific

Railway Co. recorded December 22, 1876 in Book Al at

Page 321 in the office of the Clerk and Recorder for Adams

County, Colorado as follows:

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Appendix B

Reserving to said Company and its assigns

the right of way for said railway in width and

in manner and form as provided by the acts of

Congress in relation thereto, and it is agreed

further that whenever it is required by Law

that the company shall fence its road such fence

along the line of the road upon the land hereby

conveyed shall be erected and maintained by

the Party of the Second Part, his heirs and

assigns in all respects as required by law, and

this Agreement is hereby declared a covenant

running with the land herein conveyed, and

provided also that said Company shall be

exempt from all claim for damages to the

possession and use of said Land that may

accrue to the Party of 2nd party or his assigns

in construction and operating of said railway.

72a

C THE DISTRICT

APPENDIX C — Appendix

ORDER OF

COURT, CITY AND COUNTY OF DENVER,

COLORADO, FILED APRIL 27, 2022

DISTRICT COURT, CITY AND

COUNTY OF DENVER, COLORADO

Case Number: 21CV33498

CITY AND COUNTY OF DENVER,

A COLORADO MUNICIPAL CORPORATION,

Plaintiff,

MONAGHAN FARMS, INC.,

A COLORADO CORPORATION,

Defendant.

Filed April 27, 2022

ORDER

(DEFENDANT MONAGHAN FARMS’ MOTION

FOR DENIAL OR CONTINUANCE OF RULING ON

CITY AND CITY AND COUNTY OF DENVER’S

MOTION FOR SUMMARY JUDGMENT ON FIRST

AND SECOND CLAIMS FOR RELIEF PURSUANT

TO C.R.C.P. 56(F) AND CITY AND COUNTY OF

DENVER’S MOTION FOR SUMMARY JUDGMENT

ON FIRST AND SECOND CLAIMS FOR RELIEF)

The matter is before the Court on Defendant

Monaghan Farms’ Motion for Denial or Continuance

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Appendix C

of Ruling on City and County of Denver’s Motion for

Summary Judgment on First and Second Claims

for Relief Pursuant to 56(f) and the City and County

of Denver’s Motion for Summary Judgment on First

and Second Claims for Relief. The Court, having

reviewed the motions, the responsive briefs, the

Court’s file, and the applicable legal authority, finds,

concludes, and orders as follows:

PROCEDURAL BACKGROUND

1. On November 3, 2021, the City and County

Denver (“Denver”) filed its Complaint, asserting

claims for quiet title and declaratory judgment. The

Complaint presents the following three issues: (1) Is

Denver entitled to an order under C.R.C.P 105 quieting

its title to the Monaghan Parcels and rejecting any

claims to a right of reverter by Monaghan Farms,

Inc. (“Monaghan Farms”); (2) Is Denver entitled to a

declaration under C.R.C.P. 57(a) and § 13-51-101, et seq.,

C.R.S. (2021) that the 1992 Settlement Agreement

bars Monaghan Farms from pursuing any claims that

it has any reversionary interest in or to the Monaghan

Parcels; and (3) Is Denver entitled to a declaration

under Rule 57(a) and Section 1-51-101, et seq., that the

development of commercial non-aeronautical land uses

at Denver International Airport (“DEN”), including

within any Monaghan Parcels, is in the service and

support of DEN, and therefore is a “public airport use.”

Compl. ¶¶ 41, 45, 53.

2. On December 6, 2021, Monaghan Farms filed a

Motion to Dismiss for Failure to Join an Indispensable

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Appendix C

Party Pursuant to C.R.C.P. 12(b)(6). On April 21,

2022, after entertaining full briefing of the motion and

conducting an evidentiary hearing, the Court denied

the motion to dismiss.

3. Meanwhile, on January 28, 2022, Denver filed

the instant motion for summary judgment. Denver

seeks summary judgment on its first two claims for

relief. Denver further submits that a favorable ruling

on either of these claims would alleviate the need for

consideration of its third claim for relief.

4. On March 21, 2022, Monaghan Farms filed a

response to the motion for summary judgment as well

as a Rule 56(f) motion for denial or continuance of the

ruling on the motion for summary judgment.

5. The Court now has received full briefing on the

summary judgment motion and the Rule 56(f) motion.

STANDARDS OF REVIEW

C.R.C.P. 56(f) provides, as follows:

Should it appear from the affidavits of a party

opposing the motion that the opposing party

cannot for reasons stated present by affidavit

facts essential to justify its opposition, the court

may refuse the application for judgment or may

order a continuance to permit affidavits to be

obtained or depositions to be taken or discovery

to be had or may make such order as is just.

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Appendix C

A trial court abuses its discretion in denying

a C.R.C.P. 56(f) request “where the movant has

demonstrated that the proposed discovery is

necessary and could produce facts that would

preclude summary judgment.” Bailey v. AirgasIntermountain, Inc., 250 P.3d 746, 751 (Colo. App.

2010). A trial court may, however, deny the request “if

the movant has failed to demonstrate that the proposed

discovery could produce [such] material facts.” Id.

Moreover, a trial court does not abuse its discretion

in denying requests for discovery if legal issues can

be determined without additional discovery. E.F.W.

v. St. Stephen’s Indian High School, 264 F.3d 1297,

1303 n.2 (10th Cir. 2001).

Under C.R.C.P. 56(c), summary judgment is

proper only if the pleadings and supporting documents

establish that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law. Civil Service Commission

v. Pinder, 812 P.2d 645, 649 (Colo. 1991). The moving

party bears the burden of establishing the nonexistence of a genuine issue of material fact. If the

moving party meets that initial burden, the burden

then shifts to the nonmoving party to establish that

there is a triable issue of fact. Continental Air Lines,

Inc. v. Keenan, 731 P.2d 708, 712-13 (Colo. 1987).

UNDISPUTED FACTS

1. Denver is a home rule city and county established

and organized pursuant to Article XX of the Colorado

Constitution.

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Appendix C

2. Denver owns and operates DEN.

3. Monaghan Farms, Inc. is a Colorado corporation

with a principal location at 7950 East Prentice Avenue,

Suite 101, Greenwood Village, Colorado.

4. On July 28,1988, Denver filed a Petition in

Condemnation against Monaghan Farms to acquire

approximately 8,360 acres of land, constituting the

Monahan Parcels (the “Condemnation Action”).

5. On November 12, 1992, Denver and Monaghan

Farms executed a Stipulation and Settlement

Agreement (the “1992 Settlement Agreement”).

6. On November 19, 1992, the Denver District

Court issued a Second Amended Rule and Order.1

7. On May 3, 2017, Monaghan Farms sent Denver

a letter, stating, in part, a “demand that Denver cease

from using the property acquired from Monaghan

Farms via eminent domain for [DEN] for private

commercial uses or otherwise return the property

being issued for private uses back to Monaghan Farms.”

8. In the May 3, 2017 letter, Monaghan Farms

threatened to sue Denver if the concerns of Monaghan

Farms could not be resolved.

1. In its Response to Denver’s motion for summary judgment,

Monaghan Farms refers to the Second Amended Rule and Order

as the “Third Rule and Order.” In this Order, the Court will refer

to the document as the Second Amended Rule and Order.

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Appendix C

9. On April 20, 2020, Monaghan Farms sent a letter

to Denver in which Monaghan Farms reasserted its

intent to pursue claims for reversion.

ANALYSIS

Rule 56(f) Request

Monaghan Farms requests a continuance of

Denver’s application for summary judgment to conduct

extensive discovery as to whether Denver’s specified

land use is a “public airport use.” The Court denies this

request, finding that the determination of this factual

issue is irrelevant, for the reasons and authorities

stated below, to the legal issues presented in Denver’s

First and Second Claims for Relief. These claims

for relief present issues that can be determined as a

matter of law.

II. First Claim for Relief

In its First Claim for Relief, Denver seeks to

quiet its title to a portion of DEN identified as the

Monaghan Parcels. Denver maintains that it acquired

title to the Monaghan Parcels in fee simple absolute

and that Monaghan Farms lacks a right to reversion

in these parcels.

C.R.C.P. 105(a) governs quiet title actions “for the

purpose of obtaining a complete adjudication of the

rights of all parties thereto, with respect to any real

property[.]” The court is tasked with granting “full

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Appendix C

and adequate relief so as to completely determine the

controversy and enforce the rights of the party.” Id.

“In an action to quiet title to condemned property,

courts generally consider the nature of the interest

in issue and determine the intent, express or implied,

of the condemnation decree awarding the interest.”

Hutson v. Agric. Ditch & Reservoir, Co., 723 P.2d 736,

739 (Colo. 1986).

In the Condemnation Action, Denver expressed

the intent to acquire “all property interests in, above,

on and below the surface of the [Monaghan] parcels”

and stated that the condemnation was “necessary for

the protection and preservation of the health, safety,

welfare, and convenience of the citizens of the City and

County of Denver, and to carry out the public project.”

Mot. Ex. 1, ¶ 5, Ex. A. In the Second Amended Rule

and Order, the District Court approved the stipulation

of Denver and Monaghan Farm and ordered, adjudged

and decreed:

[T]hat the property and interests therein

described in Exhibit A attached hereto

and incorporated herein by reference

have been duly and lawfully taken by

[Denver] pursuant to the statutes and the

Constitution of the State of Colorado; that

all interests of the Respondents in said

property have been acquired by [Denver];

and that title to the property described in

Exhibit A, together with all appurtenances

thereto belonging, free and clear of all liens

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Appendix C

and encumbrances, is hereby vested in

[Denver][.]

Mot. Ex. 3. (Emphasis added). Exhibit A describes the

property acquired by Denver as including “[a]ll property

interest in, above, on and below the surface of the

Parcels.” Id. Ex A. 2 Notably, the Second Amended

Rule and Order does not contain any reference to a

reversionary interest by Monaghan Farms.

Denver contends that the use of the phrase “all

property interests” meant that Denver sought and

received title to the Monaghan Parcels in fee simple

absolute. Monaghan Farms challenges this contention,

arguing that any such determination circumvents

the issue of “public use,” that the phrase only refers

to the location of the property or, at best, Denver’s

present possessory interests, and that the failure of

the pertinent documents to use the term “fee simple

absolute” raises a genuine issue of material fact. 3 The

Court agrees with Denver’s contention, rejecting the

arguments of Monaghan Farms.

As a preliminary matter, neither the First nor the

Second Claims for Relief require a determination as

2. “All property interests” was subject to specifically

identified and preexisting mineral and easement rights which are

not pertinent to the present dispute.

3. Monaghan Farms also raises arguments as to the initial

condemnation. Because these arguments do not impact the Court’s

resolution of the instant motion, the Court declines to address

those arguments.

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Appendix C

to Denver’s intended use of the Monaghan Parcels.

The intended use of the Monaghan Parcels is only

relevant to Denver’s Third Cla

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