Appendix — City of Colorado Springs v. Board of County Commissioners
Supreme Court brief1995
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(n) Supreme Court, U.S. :
FILED
O5 42850 5-195
No.
oe OF -FHE-CLERK
In The
Supreme Court of the United States
October Term, 1995
+
CITY OF COLORADO SPRINGS AND CITY OF
AURORA, COLORADO, MUNICIPAL CORPORATIONS,
Petitioners,
THE BOARD OF COUNTY COMMISSIONERS OF THE
COUNTY OF EAGLE, STATE OF COLORADO, et al.,
Respondents.
+
Petition For A Writ Of Certiorari To The
Colorado Court Of Appeals
&
APPENDIX TO PETITION FOR
WRIT OF CERTIORARI,
VOLUME II, Pages 157a to 319a
¢
Mark T. PIFHER*
JoHN M. D1ncess
DUNCAN, OSTRANDER,
VARNELL & Dincess, P.C.
7800 East Union Avenue
Suite 200
Denver, CO 80237
Grecory L. JOHNSON
Assistant City Attorney,
Utilities
30 S. Nevada, Suite 601
Colorado Springs, CO
80903
JONATHAN C. DEHMLOW
ANDERSON, GIANUNZIO,
Dupe, PIFHER & LEBEL, P.C.
104 S. Cascade Avenue
Suite 204
Colorado Springs, CO
80903
(719) 632-3545
*Counsel of Record
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
Appendix A:
Appendix B:
Appendix C:
Appendix D:
Appendix E:
Appendix F:
Appendix G:
App. i
INDEX TO APPENDICES
VOLUME I
The decision of the Colorado Court of
Appeals reported at 895 P.2d 1105 (1994).
App. 1a-33a.
Relevant Portions of the FLPMA permit
issued for the Homestake Water Project
(“Project”) by the United States Forest
Service. App. 34a-107a.
Relevant portions of the Section 404 per-
mit issued for the Project by the U.S.
Army Corps of Engineers. App.
108a-134a.
The decision of the Colorado Water Qual-
ity Control Division certifying that the
Project met all applicable state water
quality requirements. App. 135a-14la.
The resolution of the Eagle County Board
of County Commissioners (“County”),
dated February 22, 1988, denying the
local land use permits for the Project.
App. 142a-156a.
VOLUME II
The resolution of the Eagle County Board
of County Commissioners (“County”),
dated December 17, 1991, denying the
local land use permits for the Project.
App. 157a-16la.
The order of the Eagle County District
Court dated July 22, 1988, dismissing for
lack of standing the claims of the cities
brought under the Fifth and Fourteenth
Appendix
Appendix
Appendix
Appendix
Appendix
Appendix
Appendix
App. ii
Amendments to the United States Consti-
tution. App. 162a-167a.
The order of the Eagle County District
Court dated July 22, 1988, dismissing for
lack of standing the claims of the cities
brought under the Fifth and Fourteenth
Amendments to the United States Consti-
tution. App. 168a-172a.
The initial decision of the Eagle County
District Court remanding the case to the
Board of County Commissioners. App.
173a-191a.
The decision of the Eagle County District
Court finding that the County had denied
the cities’ due process and acted in an
arbitrary and capricious manner in deny-
ing the requested permits. App.
192a-206a.
The order of the Eagle County District
Court vacating that portion of its prior
decision which had required the County
to issue the permits. App. 207a-212a.
The Colorado Court of Appeals decision
denying the cities Petition for Rehearing.
App. 213a.
The Colorado Supreme Court decision
denying the cities’ Petition for Writ of
Certiorari. App. 214a-216a.
Relevant portions of the pleadings and
briefs below indicating the manner in
which the federal questions were raised
App. 217a-269a.
Appendix O:
Appendix P:
Appendix Q:
Appendix R:
Appendix S:
Appendix T:
Appendix U:
Appendix V:
Appendix W:
App. ili
Relevant provisions of the Colorado Land
Use Act, C.R.S. §§ 24-65.1-101-502 (1988)
are attached as App. 270a-279a.
Relevant provisions of the Eagle County
land use regulations promulgated pur-
suant to C.R.S. § 24-65.1-101-502 (1988)
are attached as App. 280a-295a.
Relevant provisions of the Federal Land
Policy Management Act, 43 U.S.C.
§ 1700-1784 (1986), are attached as App.
296a-300a.
Relevant provisions of the National Forest
Management Act, 16 U.S.C. §§ 472a, 476
note, 500, 513, 515, 516, 518, 521b, 528
note, 576b, 581h, 594-2 note, 1600 note,
1600-1614 (1985), are attached as App.
301a-303a.
Relevant provisions of the Organic Act of
1897, 16 U.S.C. §§ 475-481 (1985), are
attached as App. 304a-305a.
Relevant provisions of the Multiple Use
and Sustained Yield Act, 16 U.S.C.
§§ 528-531 (1985), are attached as App.
306a-307a.
The text of the Property Clause of the
United States Constitution, art. IV, § 3, cl.
2, is set forth at App. 308a.
The text of the Fifth and Fourteenth
Amendments to the United States Consti-
tution are attached as App. 309a-311a.
The text of the Supremacy Clause of the
United States Constitution, art. VI, cl. 2, is
set forth at App. 312a.
Appendix X:
Appendix Y:
Appendix Z:
App. iv
Relevant portions of P.L. 96-560, 94 Stat.
3266 (1980) are attached as App. 313a.
Relevant portions of the Code of Federal
Regulations, 1983 edition, governing the
use of federal lands, 36 C.F.R. Part 200
through 299, are set forth at App.
314a-318a.
Map of Homestake Delivery System is
attached as App. 319a.
157a
APPENDIX F
Commissioner GUSTAFSON moved adoption of
the following Resolution:
BOARD OF COUNTY COMMISSIONERS
COUNTY OF EAGLE, STATE OF COLORADO
RESOLUTION NO. 91-104
REGARDING THE ORDER REMANDING PERMIT
APPLICATION CONSIDERATION
HOMESTAKE WATER DIVERSION PROJECT, PHASE II
WHEREAS, the Cities of Colorado Springs and
Aurora (hereinafter the “Cities” or the “Applicant”) sub-
mitted a consolidated application for the construction of
the second of four phases of a water diversion project
commonly referred to as the Homestake Water Diversion
Project; and
WHEREAS, after public hearing, said consolidated
application was denied by the Eagle County Board of
County Commissioners (the “Board”) pursuant Resolu-
tion 88-15; and
WHEREAS, said denial is the subject of an appeal
under C.R.C.P. 106 to the Eagle County District Court,
Case No. 88 CV 142; and
WHEREAS, the Court received cross motions for
Summary Judgment; and
WHEREAS, on July 2, 1991, the Eagle County District
Court, among other rulings, ordered the applications for
a Permit for a Major Extension of a Water Project, for a
Permit for Efficient Utilization of Municipal Water Pro-
ject, and for the Special Use Permit, remanded to the
158a
Eagle County Board of Commissioners for reconsidera-
tion in conformance with the Court’s written order of that
date; and
WHEREAS, the Court determined that any reliance
upon certain findings of fact made by the Board under
6.04.15.1.p, 6.04.15.1.1, 6.04.15.1.b, 6.05.15.1.b of the Eagle
County administrative regulations, was improper; and
WHEREAS, with regard to the application for a Spe-
cial Use Permit, the Court determined that any reliance
upon certain findings of fact made by the Board under
the Special Use Permit criteria 2.09.02.13.f, 2.09.04.1.a,
and 2.09.04.1.b, was improper; and
WHEREAS, upon proper notice, the Board held hear-
ings pursuant to said remand on October 21, 1991 and
November 25, 1991; and
WHEREAS, the Cities moved for the submission of
and inclusion of certain federal agency documents into
the record of the decision; and
WHEREAS, the Board allowed and received legal
arguments by the parties regarding whether the criteria
for approval, as limited by the Court’s July 2, 1991 order,
were satisfactorily met by the evidence and testimony
presented with the application; and
WHEREAS, the Board deliberated upon the issue of
whether the criteria for approval, as limited by the
Court’s July 2, 1991, order, were satisfactorily met by the
evidence and testimony presented with the application.
NOW, THEREFORE, BE IT RESOLVED BY THE
BOARD OF COUNTY COMMISSIONERS OF THE
COUNTY OF EAGLE, STATE OF COLORADO:
Ota 6 a ONG Ny ely Nn 9 till Db Rs COA att D Ortop lw ding se el
159a
THAT, the record of testimony and evidence used in
the consideration of the application is closed and shall
not be reopened.
THAT, the Cities’ motion for the submission of and
inclusion of certain federal agency documents be denied.
THAT, with regard to the application for a Permit for
a Major Extension of a Water Project, Section 6.04.15.2 of
Eagle County’s administrative regulation entitled “Major
Extensions of Existing Domestic Water and Sewage Treat-
ment Systems” states that “(t)he permit shall be denied if
the applicant fails to satisfy all the criteria outlined in
Subsection 6.04.15.1.”
THAT, with regard to the application for a Permit for
Efficient Utilization of Municipal Water Project, Section
6.05.15.2 states that “(t)he permit shall be denied if the
applicant fails to satisfy all the criteria outlined [within
6.05.15.1].”
THAT, in light of the requirements of Sections
6.04.15.2 and 6.05.15.2 of the administrative regulations,
and the remaining finding of fact within Sections I and II
of the Findings of Fact in the Resolution 88-15, the Board
hereby reaffirms its denial of the application of the Cities
for the following designated activities of state interest:
A. Major extension of an existing water collection
system (Section 6.04); and
B. Efficient utilization of a municipal water project
(Section 6.05).
THAT, there remain certain critical findings listed
within Section III of the Findings of Fact in the Resolution
88-15, specifically:
160a
“3. (2.09.02.13.e) The Project may adversely affect
fish, wildlife or migratory ranges.
4. (2.09.02.13.e) Evidence presented at the hearing
failed to demonstrate that the adverse effects on fish,
wildlife or migratory ranges can be adequately miti-
gated.”
THAT, in light of the remaining critical findings of
fact within Section III of the Findings of Fact in the
Resolution 88-15, the Board hereby reaffirms its deter-
mination that the Applicant has failed to satisfy the crite-
ria of Section 2.09 and therefore reaffirms its denial of the
application of the Cities for a Special Use Permit.
THAT, this resolution and the related deliberations
have been undertaken, notwithstanding any objections
the Board may have to the Court’s ruling as to the author-
ity of the Board to consider, regulate, and deny this
application, in an effort to comply with the remand of the
Court. The Board reserves all rights of appeal and shall
not be estopped by the passage of this resolution from
arguing on appeal its authority in excess of the limits
placed upon it under the remand.
The Board finds, determines and declares that this
Resolution is in the best interests of the health, safety and
welfare of the County of Eagle, State of Colorado.
MOVED, READ AND ADOPTED by the Board of
County Commissioners of the County of Eagle, State of
Colorado, at its regular meeting held the 17th day of
December 1991.
16la
[seal] COUNTY OF EAGLE,
/s/ Johnette Phillips STATE OF COLORADO,
Clerk to the Board By and Through Its
BOARD OF COUNTY
COMMISSIONERS
of County
Commissioners
By: /s/ George A. Gates
George A. Gates,
Chairman
/s/ Richard L
Gustafson
Richard L.
| Gustafson,
| Commissioner
:
:
/s/ Donald H. Welch
. Donald H. Welch,
Commissioner
Commissioner ___ seconded adoption of the forego-
| ing resolution. The roll having been called, the vote was
| as follows:
Commissioner George A. Gates ane
; Commissioner Richard L. Gustafson eas
Commissioner Donald H. Welch Oh
This Resolution passed by __ vote of the Board of
County Commissioners of the County of Eagle, State of
Colorado.
162a
APPENDIX G
DISTRICT COURT, COUNTY OF EAGLE, STATE OF
COLORADO
Civil Action No. 88 CV 142
ORDER
CITY OF COLORADO SPRINGS and CITY OF AURORA,
Colorado Municipal Corporations,
Plaintiffs,
vs.
1. THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF EAGLE, STATE OF COLORADO;
2. GEORGE A. GATES, DONALD H. WELCH, RICH-
ARD L. GUSTAFSON, in their official capacities as
individual members of said Board;
3. THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF EAGLE, STATE OF COLORADO,
in its capacity as the permitting authority under
Section 24-65.1-101, et seq., C.R.S.;
4. THE EAGLE COUNTY PLANNING COMMISSION;
5. CHARLES RIDGWAY, DAVID SLEMON, DENNIS
GELVIN, DONALD PRICE, in their official capacities
as individual members of said Commission;
THE COUNTY OF EAGLE, STATE OF COLORADO;
AVON METROPOLITAN DISTRICT;
TOWN OF AVON, COLORADO;
COLORADO COUNCIL OF TROUT UNLIMITED;
0. COLORADO RIVER OUTFITTERS ASSOCIATION;
ae
42.
12.
13.
14.
15.
16.
17.
18.
19.
20.
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24.
pW
163a
DIVISION OF WILDLIFE, STATE OF COLORADO;
EAGLE COUNTY SHERIFF, in his official capacity;
HOLY CROSS WILDERNESS DEFENSE FUND;
JAMES FRANKLIN LAMONT;
RED CLIFF WATER AND SANITATION DISTRICT;
TOWN OF EAGLE, COLORADO;
TOWN OF GYPSUM, COLORADO’
TOWN OF MINTURN, COLORADO;
TOWN OF RED CLIFF, COLORADO;
TOWN OF VAIL, COLORADO;
UPPER EAGLE REGIONAL WATER AUTHORITY;
UPPER EAGLE VALLEY SANITATION DISTRICT;
VAIL VALLEY CONSOLIDATED WATER DISTRICT;
VAIL ASSOCIATES, INC.; and
EAGLE COUNTY HISTORICAL SOCIETY,
Defendants.
THE COURT, having considered the Motion to Dis-
miss Plaintiffs’ Sixth, Twelfth and Thirteenth claims filed
by Defendants Board of County Commissioners of the
County of Eagle; George A. Gates, Donald H. Welch, and
Richard L. Gustafson, in their official capacities as indi-
vidual members of said Board; The Board of County
Commissioners of the County of Eagle, in its capacity as
the permitting authority under Section 24-65.1-101 et seq.,
C.R.S.; The Eagle County Planning Commission; Charles
Ridgway, David Slemon, Dennis Gelvin, and Donald
164a
Price, in their official capacities as individual members of
said Commission; and The County of Eagle, hereinafter
collectively referred to as “Eagle County” or “Defen-
dants”, and the Response and Reply thereto, along with
the pleadings and exhibits appended to these documents,
AND BEING fully advised in the premises, enters the
following findings and Order:
1. Defendants move the Court to dismiss Plaintiffs’
(the Cities’) Sixth, Twelfth and Thirteenth claims for relief
wherein Plaintiffs, municipal corporations of the State of
Colorado, allege that they have been denied due process
by Eagle County in contravention of the Fifth and Four-
teenth amendments of the United States Constitution.
Eagle County argues the following:
a. Plaintiffs lack standing to assert their Sixth and
Twelfth clams [sic] for relief because municipalities are
not afforded due process protection under the United
States Constitution; and
b. Plaintiffs lack standing to assert their Thirteenth
claim for relief because municipalities are not afforded
statutory protection under 42 U.S.C. 1983.
2. Plaintiffs respond arguing that:
a. Plaintiffs have standing to assert their Sixth and
Twelfth claims as home rule municipalities in their capac-
ity as owners of certain decreed conditional water rights;
b. The “per se” exclusionary rule on standing, as
developed by the federal courts, should not apply, and
does not apply to Colorado home rule municipalities;
165a
c. Colorado courts have found standing to exist
under the United States and Colorado Constitutions
when considering procedural due process issues;
d. Plaintiffs have standing in their proprietary
capacity;
e. There exists a basis for Plaintiffs’ Sixth Claim
outside of the Federal and State Constitutions; and
f. Plaintiffs have standing to assert their Thirteenth
Claim under 42 USC 1983.
3. Defendants reply they are not moving to dismiss
all of Plaintiffs’ claims, and agree the Cities have standing
to bring their action under Rule 106(a)(4) or Rule 57.
Defendants argue the Colorado Supreme Court's recent
decision in Orchard City v. Delta County Commissioners,
751 P.2d 1003 (Colo. 1988) is dispositive of the issues
raised, and the governmental/proprietary distinction has
never been recognized in the context of Fourteenth
Amendment rights. See City of Trenton v. State of New
Jersey, 262 U.S. 182 (1923).
4. Plaintiffs’ Sixth, Twelfth and Thirteenth Claims
for Relief are summarized as follows:
a. Sixth Claim - Seeks a declaratory judgment that
the regulations adopted by the Board of County Commis-
sioners are legally insufficient and vague as to deny
Plaintiffs due process under the Fifth and Fourteenth
Amendments of the U.S. Constitution and Article II, Sec-
tion 25 of the Colorado Constitution;
b. Twelfth Claim - Seeks a declaratory judgment
that the findings and conclusions as set forth in the
Board’s Resolution No. 88-15 are without factual support
166a
in the record; that Plaintiffs were not afforded the right of
cross examination and rebuttal as to all evidence consid-
ered by the Board; that the Board was impermissibly
biased against Plaintiffs and the project; and that the
Board applied an unduly oppressive criteria to the per-
mitting of the project, all of which denied Plaintiffs due
process in the hearing process; and
c. Thirteenth Claim - Seeks an injunction due to
Defendants’ arbitrary denial of Plaintiffs application
enjoining Defendants from depriving Plaintiffs of their
constitutionally protected property rights of developing
their water rights pursuant to 42 USC 1983.
5. The Court finds that the Plaintiffs, City of Colo-
rado Springs and City of Aurora, are municipal corpora-
tions and, as such, are not citizens within the meaning of
the Fourteenth Amendment. As the State Supreme Court
held in Orchard City v. Delia County Commissioners, 751
P.2d 1003, 1006 (Colo. 1988), “being but creatures of the
State, municipal corporations have no standing . . . to
invoke the provisions of the Fourteenth Amendment of
the Constitution in opposition to the will of their cre-
ator. .. . [T]he Fourteenth Amendment simply does not
prescribe guidelines and impose restrictions upon one
political subdivision vis-a-vis another political subdivi-
sion.” Orchard City, at 1006, fn.3; South Macomb Disposal v.
Township of Washington, 790 F.2d 500, 503 (6th Cir. 1986).
6. The Cities therefore have no standing to assert
purported constitutionally protected property rights in a
42 USC 1983 claim.
7. The Court further finds a political subdivision of
a state cannot challenge the constitutionality of another
167a
political subdivision’s ordinance on due process grounds.
The Fourteenth Amendment does not prescribe guide-
lines or impose restrictions upon one political subdivi-
sion of a state vis-a-vis another political subdivision of
the state; and the relationship between the entities is a
matter of state concern. The Fourteenth Amendment pro-
tections and limitations do not apply in this instance
either. South Macomb, supra., at 505.
8. The Court therefore grants Defendants’ Motion in
part and properly dismisses Plaintiffs’ Sixth and Thir-
teenth Claims for Relief but denies Defendants’ Motion as
to the Twelfth Claim.
DONE AND SIGNED this 22nd day of July, 1988.
BY THE COURT:
/s/ Wm L Jones
Wm. L. Jones, Chief Judge
District Court
168a
APPENDIX H
DISTRICT COURT, COUNTY OF EAGLE, STATE OF
COLORADO
Civil Action No. 88 CV 142
ORDER
CITY OF COLORADO SPRINGS and CITY OF AURORA,
Colorado Municipal Corporations,
Plaintiffs, |
VS.
1. THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF EAGLE, STATE OF COLORADO;
2. GEORGE A. GATES, DONALD H. WELCH, RICH-
ARD L. GUSTAFSON, in their official capacities as |
individual members of said Board;
3. THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF EAGLE, STATE OF COLORADO,
in its capacity as the permitting authority under
Section 24-65.1-101, et seqg., C.R.S.;
THE EAGLE COUNTY PLANNING COMMISSION;
CHARLES RIDGWAY, DAVID SLEMON, DENNIS
GELVIN, DONALD PRICE, in their official capacities
as individual members of said Commission;
THE COUNTY OF EAGLE, STATE OF COLORADO;
AVON METROPOLITAN DISTRICT;
TOWN OF AVON, COLORADO;
COLORADO COUNCIL OF TROUT UNLIMITED;
0. COLORADO RIVER OUTFITTERS ASSOCIATION;
>
wer
169a
11. DIVISION OF WILDLIFE, STATE OF COLORADO;
12. EAGLE COUNTY SHERIFF, in his official capacity;
13. HOLY CROSS WILDERNESS DEFENSE FUND;
14. JAMES FRANKLIN LAMONT;
15. RED CLIFF WATER AND SANITATION DISTRICT;
16. TOWN OF EAGLE, COLORADO;
17. TOWN OF GYPSUM, COLORADO’
18. TOWN OF MINTURN, COLORADO;
19. TOWN OF RED CLIFF, COLORADO;
20. TOWN OF VAIL, COLORADO;
21. UPPER EAGLE REGIONAL WATER AUTHORITY;
22. UPPER EAGLE VALLEY SANITATION DISTRICT;
23. VAIL VALLEY CONSOLIDATED WATER DISTRICT;
24. VAIL ASSOCIATES, INC.; and
25. EAGLE COUNTY HISTORICAL SOCIETY,
Defendants.
THE COURT, having considered the Plaintiffs Motion
to Amend Complaint, the Response and Reply thereto,
along with the pleadings and exhibits appended thereto,
AND BEING fully advised in the premises, enters the
following findings and Order:
1. Plaintiffs (Cities) move the Court for leave to
amend their Complaint filed March 18, 1988, such amend-
ment proposing the addition of a Fourteenth and Fif-
teenth Claim for Relief.
170a
2. The Fourteenth Claim is a demand for repayment
to Plaintiffs of an application “fee” which Plaintiffs’
allegedly paid to Eagle County in the amount of
$191,478.44 under protest. Plaintiffs claim the application
“fee” assessed pursuant to Eagle County Land Use Regu-
lation Section 6.01.23 and C.R.S. 24-65.1-501(1)(a)
includes amounts not contemplated by C.R.S.
24-65.1-501(1)(a) and was not set within the required ten
days of the County’s receipt of Plaintiffs’ application to
develop water rights it owns within the county. Plaintiffs
further claim in their motion to amend that the County
was given notice on March 16, 1988 by Plaintiffs that the
payment was made under protest, it was improperly
assessed and they demanded return with interest. Plain-
tiffs also claim no response has been received from the
County regarding their demand.
3. The Eagle County Defendants (captioned above
as Defendants 1. through 6.) respond that the proposed
Fourteenth Claim seeking declaratory relief is an entirely
new Ciaim and is untimely even if it seeks a declaratory
judgment since it was not brought within the 30 day
limitation contained in Rule 106(b). Citing Greyhound Rac-
ing Association v. Colorado Racing Commission, 589 P.2d 70
(Colo. App. 1978).
4. The Court notes the Eagle County Defendants
argument that failure to appeal within the applicable 30
day time limit is a jurisdictional defect, and that a Plain-
tiff cannot circumvent these time limitations by attempt-
ing to obtain declaratory relief. See Trinen v. City and
County of Denver, 725 P.2d 65 (Colo.App. 1986); Snyder v.
City of Lakewood, 542 P.2d 371, 376 (Colo. 1975); and
17la
Greyhound Racing Association of Southern Colorado, Inc. v.
Colorado Racing Commission, 589 P.2d 70 (Colo.App. 1978).
5. However, the Court finds when a petition for
review under Rule 106(a)(4) is timely filed, the Court of
Appeals has followed a different line of cases than Trinen,
Greyhound and Snyder. When a petition for review is
timely filed under the rule, public policy requires the
joinder of all claims for relief in one action. See Powers v.
Board of County Commissioners, 651 P.2d 463, 464
(Colo.App. 1982), distinguishing Snyder; Norby v. City of
Boulder, 577 P.2d 277 (1978); and Wilson v. Town of Avon,
749 P.2d 990, 992 (Colo.App. 1987). And a trial court
errors by deyning [sic] leave to amend a Rule 106(a)(4)
petition adding a claim for declaratory relief on a money
demand issue which was not heard nor within the juris-
diction of the inferior tribunal. See Wilson, supra. at 992.
6. The Court thus grants Plaintiffs’ Motion to
Amend adding the Fourteenth Claim for Relief.
7. The Court next addresses the Plaintiffs proposed
Fifteenth Claim. The Court finds the Cities proposed
Fifteenth Claim alleges the deprivation of a constitu-
tionally protected property interest of the Cities and
seeks just compensation which is similar to the issues
presently before the Court in the Eagle County Defen-
dants’ Motion to Dismiss Plaintiffs Sixth, Twelfth and
Thirteenth Claims for Relief. The Court concludes, as it
has on even date herewith in its Order dismissing Plain-
tiffs originally filed Six and Thirteenth claims, that
municipal corporations are creatures of the State and
172a
have no standing to invoke the protections of the Four-
teenth or Fifth Amendments to the Constitution in oppo-
sition to the will of their creator. In other words, the
Fourteenth and Fifth Amendments simply do not pre-
scribe guidelires and impose restrictions upon one politi-
cal subdivision vis-a-vis another political subdivision.
Orchard City v. Delta County Commissioners, 751 P.2d 1003,
1006 (Colo. 1988); Village of Arlington Heights v. Regional
Transportation Authority, 653 F.2d 1149 (1981); and See
Generally, 16A Am.Jur.2d Constitutional Law, Section 744.
8. The Court thus denies Plaintiffs’ Motion to
Amend which proposes the addition of Plaintiffs’ Fif-
teenth Claim because the Court has found that municipal
corporations have no standing to bring constitutional
claims against the state or another of the state’s political
subdivisions. Arlington, supra. at 1153.
DONE AND SIGNED this 22nd day of July, 1988.
BY THE COURT:
/s/ Wm L Jones
Wm. L. Jones, Chief Judge
District Court
173a
APPENDIX I
DISTRICT COURT, EAGLE COUNTY, COLORADO
Case No. 88 CV 142
ORDER REMANDING PERMIT APPLICATION CONSID-
ERATION TO THE BOARD OF COUNTY COMMISSION-
ERS
CITY OF COLORADO SPRINGS AND CITY OF
AURORA,
Colorado municipal corporations,
Plaintiffs,
Vv.
THE BOARD OF COUNTY COMMISSIONERS OF THE
COUNTY OF EAGLE, STATE OF COLORADO; et al.
Defendants.
THIS MATTER comes before the Court on cross
motions for Summary Judgment in this Rule 106 action.
The Court has reviewed the motions, responses, replies
and exhibits, and being fully advised, makes the follow-
ing findings of fact:
Factual Background
The Cities of Colorado Springs and Aurora (“Cities”)
are owners of decreed water rights in Eagle County.
Cities are home-rule municipalities with charter provi-
sions allowing extra-territorial construction, mainte-
nance, and operation of waterworks. A portion of such
water rights were developed through Phase I of the
174a
Homestake Project, completed in 1966. Phase I of the
Homestake Project was designed to accommodate addi-
tional flows to be developed at a later date.
The diversion sites for Phase II of the Homestake
Project (“Project”) are located entirely on United States
Forest Service lands. These lands were designated by
Congress in 1980 as the Holy Cross Wilderness. At the
time of the designation as a wilderness, the Cities
received a comprehensive statutory exemption allowing
for the development of their previously existing water
rights.
In the course of developing the Project, the Cities
proceeded through a review process under the National
Environmental Policy Act (“NEPA”). Eagle County partic-
ipated in the NEPA proceedings. As part of the NEPA
procedures, an Environmental Impact Statement (“EIS”)
was prepared.
The Cities 2!sc sought a land use permit from the
U.S. Forest Service under the provisions of the Federal
Land Policy Management Act (“FLPMA”). The FLPMA
permit was granted with conditions addressing environ-
mental and land use concerns.
The Cities were also granted a section 404 permit
from the Army Corps of Engineers pursuant to the fed-
eral Clean Water Act. The 404 permit for dredge and iil
activities contained conditions to mitigate environmental
damage.
On May 20, 1985, the Cities applied to the Eagle
County Board of County Commissioners (“Board”) for
approval of the Project as a major extension of an existing
175a
water project, efficient utilization of an existing water
systems, location approval pursuant to CRS 30-28-110,
and a Certificate of Designation pursuant to 30-20-101 et
seq. (“Application”).
The Application was reviewed for completeness by
the Eagle County Planning Department. On July 23, 1985,
the Planning Department found the Application incom-
plete. The Cities resubmitted the Application with sup-
plemental materials on January 2, 1986. The Planning
Department found the Application complete on March 11,
1987, pending receipt of additional information, subse-
quently provided.
Public hearings were held on the Application on.
April 20-April 24, 1987, May 14-May 16, 1987, May 18-
May 20, 1987 and September 9, 1987.
The Eagle County Planning Commission, in Resolu-
tion No. 88-15, recommended approval of the Application
subject to compliance with certain conditions. The Cities
stipulated that they did not want the Board of County
Commissioners to consider any alternatives, except that
presented in the Application. On February 22, 1988, the
Eagle County Board of County Commissioners unani-
mously voted to deny the Cities’ Application.
Procedural Background
A complaint was filed in this action by the Cities on
March 18, 1988. The original complaint contained twelve
claims for relief; an amended complaint filed June 22,
1988 asserted two additional claims.
176a
By Order dated July 22, 1988, the Court, pursuant to
defendant County of Eagle (“County”) motion, dismissed
plaintiffs’ Sixth and Thirteenth Claims and disallowed
the amendment adding the Fourteenth Claim. Conse-
quently, there are eleven remaining claims in this action.
The following original defendants have been dis-
missed from this action: Colorado Council of Trout
Unlimited; Division of Wildlife, State of Colorado; James
Franklin Lamont; Town of Vail, Colorado; Upper Eagle
Regional Water Authority; Upper Eagle Valley Sanitation
District; and Vail Associates, Inc.
The following original defendants have filed a Dis-
claimer in this action: Town of Minturn, Colorado; and
Eagle County Historical Society.
The following original defendants have indicated, by
letters to the Court, that they do not wish to participate in
this action: Red Cliff Water and Sanitation District; and
Town of Red Cliff, Colorado.
The following original defendants have filed no
answer to the complaint; Colorado River Outfitters Asso-
ciation; Eagle County Sheriff, in his official capacity; and
the Town of Gypsum, Colorado.
The remaining claims are as follows:
First Claim: Sections 24-65.1-101 et seq. are uncon-
stitutional insofar as they attempt to vest counties with
authority to regulate or deny construction of waterworks
by home rule municipalities.
177a
Second Claim: Construction of the Project is a local,
municipal concern and the Charters of the Cities super-
sede the statutes and regulations relied upon by the
Board in denying their permits.
Third Claim: CRS Sec. 24-65, 1-101 et seq. constitutes
an unlawful delegation of authority over municipal
waterworks to county commissions.
Fourth Claim: The provisions of CRS Sec. 24-65.1-101
et seq. and CRS 30-20-103 are each void as an impermissi-
ble delegation of authority of matters of state-wide con-
cern to local governments.
Fifth Claim: Plaintiffs are acting as a public utility,
and as such are exempt from the provisions of Sec.
24-65.1-101 et seq.
Sixth Claim: Dismissed.
Seventh Claim: Plaintiffs are acting as a public utility
in the construction of the project under CRS 30-28-110
and the provisions of that statute supersede any regula-
tory authority over the Project bestowed upon Eagle
County by CRS Sec. 24-65.1-101 et seq.
Eighth Claim: The Board has exceeded its jurisdiction
in attempting to regulate the Project.
Ninth Claim: The Board acted in an arbitrary and
capricious fashion and abused its discretion by specific
actions in denying the Permits.
Tenth Claim: The Board acted in an arbitrary and
capricious fashion and abused its discretion by denying
plaintiffs’ permits in the face of a complete and accurate
178a
Application, supplemented with hearing testimony and
exhibits, which all met lawful criteria.
Eleventh Claim: By virtue of its attempt to regulate
the Project and deny permits, the Board has acted outside
the scope of its jurisdiction and in violation of the provi-
sions of CRS 31-35-402(1).
Twelfth Claim: Plaintiffs have been denied due pro-
cess under the United States and Colorado Constitutions
by specific acts of the Board.
CONCLUSIONS OF LAW
The Court makes the following Conclusions of Law:
Issues raised in plaintiff’s first, second, third, fourth,
fifth and seventh claims have been addressed by the
Colorado Supreme Court in City and County of Denver v.
Board of County Commissioners of Grand County. 782 P.2d
753_(Colo. 1989) (“Grand County”). In Grand County, a
municipality brought an action seeking a declaration that
it need not obtain permits from Grand and Eagle Coun-
ties to construct and operate water collection and diver-
sion facilities in Grand and Eagle Counties. In affirming
summary judgments entered in favor of the Counties, the
Supreme Court discussed the following issues, which
effectively dispose of many of plaintiffs’ claims:
Plaintiffs’ First Claim
Plaintiffs’ first claim contends that certain provisions
of CRS 24-65-101 et seg. (“Land Use Act”) constitute
unconstitutional regulation of the powers of a home rule
municipality. The court in Grand County held the Land
179a
Use Act does not infringe on the exercise of a home-rule
municipalities powers in violation of Article XX of the
Colorado constitution, 782 P.2d at 761, 762.
Therefore, the Court concludes that plaintiff’s first claim
for relief is without merit as a matter of law.
Plaintiffs’ Second Claim
Plaintiffs’ second claim contends that construction of
the Homestake II Project (“Project”) is a local, municipal
concern of the City of Colorado Springs and the City of
Aurora under the state constitution, which supersedes
conflicting state law. Article XX, Section 6 of the Colorado
Constitution provides, in part,:
The people of each city or town of this state,
having a population of two thousand .. . are
hereby vested with, and they shall always have,
power to make, amend, add to or replace the
charter of said city or town, which shall be its
organic law and extend to all its local and
municipal matters.
Such charter and the ordinances made pursuant
thereto in such matters shall supersede within
the territorial limits and other jurisdiction of the
city or town any law of the state in conflict
therewith.
Construction of a municipal water project outside the
territorial limits of the municipality is a matter of mixed
state and local concern. Grand County at 763. The Court
concludes that the Homestake II Project is a municipal
water project to be constructed outside the territorial
limits of the plaintiff municipalities. The powers of a
180a
home-rule municipality in constructing an extra-terri-
torial water project do not supersede applicable state law.
Id. Consequently, the Court concludes that plaintiffs’ sec-
ond claim is without legal merit.
Plaintiffs’ Third Claim
Plaintiff’s third claim contends that the Land Use Act
constitutes an unlawful delegation of authority over
municipal matters to counties. The grant of power con-
cerning regulation of activities of state interest in the
Land Use Act does not unconstitutionally delegate legis-
lative authority to local governments. Grand County at
760. The Court has previously concluded that the Home-
stake II Project is an activity of mixed state and local
concern. Therefore, the Court concludes that plaintiffs’
third claim is legally without merit.
Plaintiffs’ Fourth Claim
Plaintiffs’ fourth claim contends that CRS 24-65.1-101
of the Land Use Act and CRS 30-20-103, which requires a
county permit for a solid waste disposal project, repre-
sent an unconstitutional delegation of matters of state-
wide concern to local entities. In matters of statewide
concern, enactments of the General Assembly take prece-
dence over enactments of home-rule cities. Grand County
at 762. The legislature, acting in the interest of the state,
has developed a detailed statutory scheme in areas and
activities of state interest which has been held to apply to
the construction of extra-territorial municipal water pro-
jects. As such, the Land Use Act prescribes the procedure
by which construction of municipal water projects located
18la
outside of the territorial limits of the municipality are
regulated. The procedures established in the Land Use
Act prevent uncontrolled exercises of discretionary
power by local governments. Grand County at 760. There-
fore, the Court concludes that the Land Use Act does not
result in an unconstitutional delegation of the state’s
powers to the counties.
CRS 30-20-103 provides, in pertinent part,:
Any person desiring to operate a solid wastes
disposal site and facility within the unincorpo-
rated portion of any county shall make applica-
tion to the board of county commissioners of the
county in which such site or facility is or is
proposed to be located for a certificate of desig-
nation. ...
The statute further provides that approval will be
based on criteria established by the state board of health,
the water quality control commission and air quality
control commission. Other sections of the Solid Wastes
Act provide detailed procedures and criteria for the
board to use in determining whether to grant a permit.
The Solid wastes Act delegation procedures do not vio-
late the Colorado constitution. City and County of Denver
v. Eggert, 647 P.2d 216, 226-227 (Colo. 1982).
Therefore, the Court concludes that neither the Land
Use Act nor the Solid Wastes Act constitute an uncon-
stitutional delegation of matters of statewide concern to
local entities. Hence, plaintiffs’ fourth claim is without
legal merit.
182a
Plaintiffs’ Fifth Claim
Plaintiffs’ fifth claim contends that activities of Public
Utilities are exempt from county regulation under the
Land Use Act, specifically CRS 24-65.1-105. The relevant
portions of 24-65.1-105 provide:
(1) With regard to public utilities, nothing in
this article shall be construed as enhancing or
diminishing the rights or the power and author-
ity of municipalities, counties, or the public util-
ities commission . . .
(2) Nothing in this article shall be construed as
enhancing or diminishing the rights and pro-
cedures with respect to the power of a public
utility to acquire property and rights-of-way by
eminent domain to serve public need in the
most economical and expedient manner.
Extraterritorial water services of a municipality are
exempt from regulation of the rates, fees, tolls or charges
for such services. Board of County Commissioners v. Denver
Board of Water Commissioners, 718 P.2d 235, 245 (Colo.
1986) (“Tri Counties”). However, the court in Grand
County expressly stated that Tri Counties did not hold that
a municipality’s construction and operation of water pro-
jects enjoyed a general immunity from regulation. Grand
County at 764. Rather, the Grand County court held that
municipalities were subject to the regulation contem-
plated in the Land Use Act. Id. Therefore, the court con-
cludes that plaintiffs’ fifth claim must fail as a matter of
law.
183a
Plaintiffs’ Seventh Claim
Plaintiffs’ seventh claim contends that CRS
30-28-110(1)(c) supersedes Eagle County’s authority
under the Land Use Act. CRS 30-28-110 provides, in part,:
(1)(a) Whenever any county planning commis-
sion has adopted a master plan of the county or
any part thereof, no road, park or any public
way, ground or space, . . . shall be constructed
or authorized in the unincorporated territory of
the county until or unless the proposed location
and extent thereof has been submitted to and
approved by such county or regional planning
commission.
* * +
(c) If the public way, ground, space, build-
ing, structure or utility is one the authorization
or financing of which does not, under the law
governing the same, fall within the province of
the board of county commissioners or the
county officials or board, the submission to the
commission shall be by the body or official hav-
ing such jurisdiction, and the commission’s dis-
approval may be overruled by said body by a
vote of not less than a majority of its entire
membership or by said official... .
Section 30-28-110 and the Land Use Act are not
facially inconsistent. Grand County at 766. Any arguable
power granted to a home-rule city in subsection
30-28-110(1)(c) to overrule planning commission disap-
proval of a project does not give the city unrestricted
authority to ignore regulations adopted pursuant to the
Land Use Act. Grand County at 766. Therefore, the Court
concludes that 30-28-110 does not supersede the Land
184a
Use Act. Consequently, plaintiffs’ seventh claim is with-
out legal merit.
Federal Preemption
Many of the criteria upon which the Board based its
denials of permits for the Homestake II Project are not
areas the County Commissioners have authority to regu-
late. The Proposed project is located entirely on federal
Forest Service land. Generally, comprehensive federal
laws preclude a county or state from prohibiting a speci- .
fic land use on federal land. Brubaker v. Board of County
Commissioners, El Paso County, 652 P.2d 1050 (Colo. 1982).
However, a state or county may regulate local environ-
mental conditions on federal lands. Granite Rock Company
v. California Coastal Commission, 480 U.S. 677 (1987).
The Court concludes that federal law preempts any
authority under which the county could arguably regu-
late land use on federal forest service land. Generally,
where congressional legislation either explicitly or
implicitly reflects an intent to occupy an entire field, state
legislation dealing with the same area is precluded. Bru-
baker at 1055. The scheme of federal regulation may be so
pervasive as to make reasonable the inference that Con-
gress left no room for the states to supplement it. Id.,
citing Rice v. Santa Fe Elevator Co., 331 U.S. 218, 230 (1947).
Section 1712(f) of the Federal Land Policy and Man-
agement Act (“FLPMA”) provides:
(f) The Secretary [of Interior] shall allow an
opportunity for public involvement and by reg-
ulation shall establish procedures, including
185a
public hearings where appropriate, to give Fed-
eral, State, and local governments and the pub-
lic, adequate notice and opportunity to
comment upon and participate in the formula-
tion of plans and programs relating to the man-
agement of public Jands.
43 U.S.C. Sec. 1712.
Section 1604(d) of the National Forest Management
Act (“NFMA”) provides:
The Secretary [of Agriculture] shall prov.de for
public participation in the development, review,
and revision of land management plans includ-
ing, but not limited to, making the plans or
revisions available to the public at convenient
locations in the vicinity of the affected unit for a
period of at least three months before final
adoption, during which period the Secretary
shall publicize and hold public meetings or
comparable processes at locations that foster
public participation in the review of such plans
or revisions.
16 U.S.C. Sec. 1604.
The Court concludes that requiring the federal man-
aging agencies to allow a party to participate in formulat-
ing plans for the management of federal public lands
implies that the same party may not separately regulate
the same activities on the same public lands. Therefore,
the combined scheme of federal regulation provided for
in FLPMA and NFMA occupies the field of land use
planning on National Forest lands. Here, the County
participated in public hearings on the Project which were
held pursuant to FLPMA and NFMA. Therefore, County
186a
regulation of the land use aspects of the Project is pre-
empted by federal law.
The Court has previously found that the Cities stipu-
lated that they did not wish the Board to consider alterna-
tives to the submitted Application. Therefore, the Board
did not determine that a permit for the Project would be
denied under any circumstances. Consequently, the ques-
tion of whether the Board has authority to deny the
Permits categorically is not before the Court. However,
the preemption doctrine has been held to preclude zoning
officials from denying a special use permit for drilling on
federal land, notwithstanding the proposed activities
were inconsistent with the county’s long range land use
planning. Brubaker, 652 P.2d at 1053.
Here, the Board based its permit denials, in part, on
land use planning criteria. As a result, the Court con-
cludes that any of the findings of fact relied upon by the
Board in denying the permits which relate to land use
were improper (Findings I5, I(10), 1(19), 1(14), I1(15),
III(A)(1), TI(A)(2), 11(B)(1), M1(B)(2), TV(1) and IV(2)).
State Preemption
In addition, state law preempts county regulation in
some areas of environmental concern. Water quality and
water rights are two areas in which the state has stat-
utorily determined it is the final authority. Water quality
is exclusively regulated by the Water Quality Control
Commission through the Water Quality Control Division.
CRS Sec. 25-8-102(4) (“This article and the agencies
authorized under this article shall be the final authority
on the administration of water pollution prevention,
187a
abatement and control.”). Plaintiff Cities have obtained
the necessary permits and approvals by the Water Quality
Control Commission. Therefore, the Board may not deny
plaintiffs’ permits based on concerns about water quality
(Findings 1(4), 1(5), 1(8), 1(9), 1(11), M(6) and II(7)).
Regulation of water rights is within the exclusive
jurisdiction of the State Engineer. CRS Sec. 37-92-301(1);
State ex rel Danielson v. Vickroy, 627 P.2d 752 (1981). Mini-
mum in-stream flows and diversion conditions have been
set by the State Engineer for the Homestake II Project.
Therefore, the Court concludes that findings of fact relied
on by the Board in denying plaintiffs’ permits which
concerned water quantity, including impacts on rafting
businesses, were improper (Findings I(4), 1(5), 1(6), I(7),
I1(4) and II(5)).
Permit for a Major Extension of an Existing
Water Collection System
In reviewing the Board’s findings of fact, the only
criteria on which the Board could properly rely in deny-
ing Cities’ Permit for a Major Extension of an Existing
Water Collection System (Part I of the Board Resolution)
were those relating to wetlands, aquatic habitat, and pos-
sibly the nuisance factors which may effect the environ-
ment of Eagle County. Since this results in only six of the
twenty findings of fact being relevant to permit denial, it
is not possible to determine with any certainty what the
result of the Board’s decision would have been in absence
of consideration of the majority of the findings.
188a
Permit for Efficient Utilization of a
State Water Project
The second permit denied by the Board was for Effi-
cient Utilization of a State Water Project (Part II of the
Board’s Resolution). Again, the Board is precluded from
basing its denial on land use considerations when the
project is to be located entirely on federal lands. There-
fore, the Court concludes that the findings based on
environmental damage to wetlands and aquatic habitats
are the only findings on which the Board could properly
base its permitting decision. In absence of the findings
relied on by the Board in denying the Cities’ second
permit which were not areas allowed to be regulated by
the County, it is not possible to determine what the
outcome of the permit decision would be.
Special Use Permit
Section III of the Board’s Resolution was a denial of a
Special Use Permit. As stated above, the County does not
have the authority to deny a land use on federal land
which has been approved by the federal agencies with
responsibility for regulating the federal land in question.
Of the findings relief on by the Board in denying plain-
tiffs Special Use Permit, all but two are related to land
use planning. Finding III(A)(3) states that “The Project
may adversely effect fish, wildlife or migratory ranges.”
Finding III(A)(4) states that “Evidence presented at the
hearing failed to demonstrate that the adverse effect on
fish, wildlife or migratory ranges can be adequately miti-
gated.” The Board may regulate activities which cause
environmental impacts, but not completely prohibit a
189a
federally approved land use. Therefore, the Court con-
cludes that it cannot determine what the Board’s decision
would be in absence of reliance on the irrelevant findings
of fact.
Certificate of Designation
CRS Sec. 30-20-104 lists the factors to be considered
in reviewing an application for a certificate to operate a
solids wastes disposal site. CRS 30-20-104 provides, in
part,:
(1) In considering an application for a certifi-
cate of designation, the board of county com-
missioners shall take into account:
(a) The effect that the solid wastes dis-
posal site and facility will have on the surround-
ing property, taking into consideration the types
of processing to be used, surrounding property
uses and values, and wind and climatic condi-
tions;
(b) The convenience and accessibility of
the solid wastes disposal site and facility to
potential users;
(c) The ability of the applicant to comply
with the health standards and operating pro-
cedures provided for in this part 1 and such
rules and regulations as may be prescribed by
the department;
(d) Recommendations by local health
departments.
Apparently, the Board denied the permit due to con-
sideration of subsection (1)(a), concerning the effect the
site would have on surrounding property. The Board had
190a
earlier found that the “neighborhood” to be considered
included the land surrounding the federal forest land.
The Court concludes that federal agencies administering
such lands are the proper authority to determine land
uses within the national forest.
Two of the findings of the Board would arguably
justify denial of the Certificate of Designation. Unfor-
tunately, these findings, that the Project did not conform
with the Eagle County Master Plan and was not compati-
ble with surrounding property, are not areas in which the
County has any authority to regulate. Therefore, the
Court concludes these findings are irrelevant.
Consequently, the Court concludes that the Board, in
finding all other considerations mitigated in favor of
approval of the Certificate of Designation, and having no
authority to dictate land use planning on federal lands,
effectively approved the Certificate of Designation.
The Court notes that due process violations and
abuse of discretion claims have been made concerning the
permitting process. The Court concludes that no due
process violations occurred. However, the Court does not
reach the abuse of discretion claim, finding that the
Board’s decision was insufficient as a matter of law.
The Court defers ruling on the claim that the permit
fee was illegal until the Board has reconsidered its permit
decisions.
THEREFORE, THE COURT ORDERS:
Plaintiff’s First, Second, Third, Fourth, Fifth and Sev-
enth Claims are dismissed.
RO ee Oa eye Te
Le ee ee ee ee ee ee ae ey
ee te ee
oo
191a
The applications for a Permit for A Major Extension
of a Water Project, Permit for Efficient Utilization of
Municipal Water Project and the Special Use Permit are
hereby remanded to the Eagle County Board of Commis-
sioners for reconsideration in conformance with this
Order. The Court defers ruling on the propriety of the
Permit fees charged until after the Board’s reconsidera-
tion, at which time an evidentiary hearing will be held,
on that issue only.
DONE THIS 2nd DAY OF JULY, 1991.
BY THE COURT:
/s/ Wm. Jones
DISTRICT JUDGE
192a
APPENDIX J
DISTRICT COURT, EAGLE COUNTY, COLORADO
Case No. 88 CV 142
ORDER SETTING ASIDE DECISION OF COUNTY COM-
MISSIONERS
CITY OF COLORADO SPRINGS AND CITY OF
AURORA, Colorado municipal corporations,
Plaintiffs,
vs.
1._THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF EAGLE, STATE OF COLORADO;
2. GEORGE A. GATES, DONALD H. WELCH, RICH-
ARD L. GUSTAFSON, in their official capacities as indi-
vidual members of said Board;
3. THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF EAGLE, STATE OF COLORADO, in its
capacity as the permitting authority under Sec.
24-65.1-101, et seq., C.R.S.
4. THE EAGLE COUNTY PLANNING COMMISSION;
5. CHARLES RIDGWAY, DAVID SLEMON, DENNIS
GELVIN, DONALD PRICE, in their official capacities as
individual members of said Commission;
6. THE COUNTY OF EAGLE, STATE OF COLORADO;
7. AVON METROPOLITAN DISTRICT;
8. TOWN OF AVON, COLORADO;
10. COLORADO RIVER OUTFITTERS ASSOCIATION;
12. EAGLE COUNTY SHERIFF, in his official capacity;
13. HOLY CROSS WILDERNESS DEFENSE FUND;
15. RED CLIFF WATER AND SANITATION DISTRICT;
16. TOWN OF EAGLE, COLORADO;
17. TOWN OF GYPSUM, COLORADO;
193a
18. TOWN OF MINTURN, COLORADO;
19. TOWN OF REDCLIFF, COLORADO;
23. VAIL VALLEY CONSOLIDATED WATER DISTRICT;
25. EAGLE COUNTY HISTORICAL SOCIETY,
Defendants.
THIS MATTER comes before the Court on appeal
from a decision by defendant Board of County Commis-
sioners of Eagle County (“Board”). The Court has re-read
the cross motions for Summary Judgment, Responses and
Replies and Responses and Replies to the Decision on
Remand. The Court has reviewed Board Resolution
91-104, the transcript of the hearings, and exhibits. Being
fully advised, the Court makes the following Findings of
Fact:
The Cities of Colorado Springs and Aurora (“Cities”)
are owners of decreed water rights in Eagle County. A
portion of such water rights were developed through
Phase I of the Homestake Project, completed in 1966.
Phase I of the Homestake project was designed to accom-
modate additional flows to be developed at a later date.
The Cities now seek to develop Phase II of the project.
The diversion sites for Phase II are located entirely
on United States Forest Service lands. These lands were
designated by Congress in 1980 as the Holy Cross Wilder-
ness. At the time of the designation as wilderness, the
Cities received a comprehensive statutory exemption
allowing for the development, of their water rights. The
area in dispute is zoned R, for resource development by
the county.
194a
The Cities have received approval for the project
from the federal agencies which have jurisdiction over its
various aspects, specifically a 404 permit from the Army
Corps of Engineers, and a permit from the U.S. Forest
Service. On May 20, 1986, the Cities applied to Eagle
County for permits for Major Extension of an Existing
Water Project, Efficient Utilization of an Existing Water
System, Approval pursuant to C.R.S. 30-28-110, and a
Certificate of Designation pursuant to C.R.S. 30-20-101.
The Eagle County Planning Commission recom-
mended approval of the Application subject to compli-
ance with certain conditions. One of the 52 conditions
imposed by the Planning Commission requires that any
reductions in sales taxes directly attributable to a
decrease in recreational visitor days caused by the project
be assessed to the Cities and placed in an escrow account.
There is no specific taxing authority over water projects
granted to counties, and Eagle County has not passed a
resolution applicable to this situation.
Public hearings were held, and on February 22, 1988,
the Eagle County Board of County Commissioners unani-
mously denied the Cities’ application for permits. This
action was commenced on March 18, 1988. The following
defendants have filed a Disclaimer in this action: Town of
Minturn, Colorado; and Eagle County Historical Society.
The following defendants have indicated, by letters to the
Court, that they do not wish to participate in this action:
Red Cliff Water and Sanitation District; and the Town of
Red Cliff, Colorado. The following original defendants
have filed no answer to the complaint: Colorado River
Outfitters Association; Eagle County Sheriff, in his offi-
cial capacity; and the Town of Gypsum, Colorado.
195a
At the time this matter was first briefed, there were
eleven remaining claims. By Order dated July 22, 1988,
the Court dismissed plaintiff’s Sixth and Thirteenth
claims. In an order dated July 2, 1991, the Court ordered
plaintiff’s First, Second, Third, Fourth, Fifth and Seventh
Claims dismissed. In the July 2 Order, the Court also
determined that the Board had effectively granted the
Cities’ application for a Certificate of Designation.
In the July 2 Order, the Court determined that the
Board had based its permit denial substantially on factors
over which the county had no jurisdiction. The matter
was remanded to the Board so it could consider whether
the remaining valid factors were sufficient to support
denial of the Cities’ application for the remaining three
permits. On remand, the Board affirmed the denial of the
permits based on the following facts:
1. APPLICATION FOR A PERMIT TO CON-
DUCT A DESIGNATED ACTIVITY OF
STATE INTEREST: A MAJOR EXTENSION
OF AN EXISTING WATER COLLECTION
SYSTEM:
1. The evidence shows that the proposed
development will significantly deteriorate
marshlands or wetlands.
2. The Applicant has failed to show that
the proposed development will not signifi-
cantly deteriorate aquatic habitats.
3. Evidence presented at the hearing failed
to demonstrate that the significant deterio-
ration of the wetlands can be adequately
mitigated.
Il.
196a
13. There may be a negative effect on the
aquatic environment because of increases in
water temperature which cause fish to be
subject to disease.
14. Evidence presented at the hearing
failed to demonstrate that the negative
effect on the aquatic environment can be
adequately mitigated.
15. The proposed development will cause
nuisance factors such as increased traffic,
dust, fire hazards, and dangers from haz-
ardous chemical contamination, explosives
and fuels. The mitigating measures pro-
posed by the Cities fail to adequately satisfy
this criterion.
APPLICATION FOR A PERMIT TO CON-
DUCT THE FOLLOWING DESIGNATED
ACTIVITY OF STATE INTEREST: EFFI-
CIENT UTILIZATION OF A MUNICIPAL
WATER PROJECT:
1. The evidence shows that the proposed
development will significantly deteriorate
marshlands or wetlands.
2. The Applicant has failed to show that
the proposed development will not signifi-
cantly deteriorate aquatic habitats.
3. Evidence presented at the hearing failed
to demonstrate that the significant deterio-
ration of wetlands can be adequately miti-
gated.
8. There may be a negative effect on the
aquatic environment because of increases in
197a
water temperature which cause fish to be
subject to disease.
9. Evidence presented at the hearing failed
to demonstrate that the negative effect on
the aquatic environment can be adequately
mitigated.
Ill. SPECIAL USE PERMIT:
3. The project may adversely affect fish,
wildlife or migratory ranges.
4. Evidence presented at the hearing failed
to demonstrate that the adverse effect on
fish, wildlife or migratory ranges can be
adequately mitigated.
Both the Eagle County Planning Commission and the
Board found that a wetland species shift would constitute
a significant deterioration of wetlands. The Board failed
to indicate what additional mitigation measures, over and
above those tendered by the Cities, were necessary to
mitigate alleged nuisance factors, or why the Cities ten-
dered mitigation was inadequate.
A federal permit granted to the City by the Army
Corps of Engineers states that the Cities have to devise a
plan to “prevent loss of wetlands.” The Corps permit also
states that any mitigation utilized in conjunction with the
Cities’ wetland plan “shall not cause more than minimal
visual intrusion to the wilderness area, and shall not have
significant environmental impacts.”
The only evidence in the record on aquatic habitats is
found in the Base Line Report submitted by the Cities.
There was no evidence presented on aquatic habitats by
198a
any other parties refuting the Cities’ Base Line Report.
Furthermore, there was no testimony on the record that
the project “may adversely affect fish, wildlife or migra-
tory ranges.”
ARGUMENTS
Cities argue that the Board’s actions in denial of the
three applications violated their due process rights, as
evidenced by the Buard’s refusal to take official notice of
the mitigation plans approved by the EPA and U.S. Forest
Service. Furthermore, the Cities argue that the Board’s
decision was arbitrary and capricious and an abuse of
discretion.
On remand, the Cities made a motion to the Board to
submit federal agency documents. The motion requested
that the Board take administrative notice of final federal
decisions which were rendered after the close of the
Board’s administrative record and after the Board’s initial
decision. The Cities argue that they did not wish to
reopen the record to add evidence, but believed that the
Board would want to consider, in its analysis, the content
of the final federal approvals as they regard monitoring
and mitigation of potential environmental impacts.
The federal documents submitted with the motion
identify the federally imposed conditions which must be
met by the Cities in the construction and operation of the
project. The defendants, including Eagle County and
Holy Cross Wilderness Defense Fund (“HCWDF”), par-
ticipated in the federal process which resulted in the final
federal permitting. In addition, a federal suit challenging,
199a
among other things, the federal procedure in promulgat-
ing the federal documents, was dismissed.
The Board denied the motion to take administrative
notice of the documents. The Cities contend that the
federal documents they sought to admit to the record
were for the purpose of establishing the conditions
imposed by the federal agencies relative to monitoring
and mitigation requirements, not for the purpose of
establishing the propriety of the conditions, or the data
upon which they are based.
Conversely, HCWDF contends that the doctrine of
taking official notice is inapplicable. HCWDF distin-
guishes the cases cited by the Cities by stating that these
cases related to taking notice during the original proceed-
ing, not taking notice on remand. Further, HCWDF dis-
putes that efficacy and scientific basis of the “proposals”
for mitigation and states that if the record were to be
reopened, it could put on relevant rebuttal evidence. As
noted above, HCWDF had the opportunity to rebut the
evidence at the federal level. Finally, HCWDF contends
that reopening the record on remand would have violated
HCWDF’s and other parties’ due process rights.
The Cities also seek a determination that the County
did not comply with the Court's order on remand by
failing to examine and rebalance the facts in the record
over which they had jurisdiction, but rather limited the
parties to legal argument regarding whether the criteria
for approval were satisfactorily met.
The Cities additionally argue that the Board does not
have the power to deny a project built by a home-rule
200a
municipality, which is to be built on federal lands and has
received federal approval.
Finally, the Cities have alleged bias on the part of two
commissioners. Specifically, the Cities’ pertinent allega-
tions are: 1) Commissioner Gustafson was present on
behalf of the Western Alliance to Encourage Respon-
sibility (“W.A.T.E.R.”) at a federal environmental assess-
ment meeting urging adoption of a position against the
project; 2) Commissioners Gustafson and Welch are sig-
natories to a petition circulated prior to October 1984
demanding that federal, state and local officials protect
the Holy Cross Wilderness by denying permits for the
project at issue; 3) Gustafson testified before a Congres-
sional subcommittee meeting against the Homestake II
project; 4) Newspaper articles on the campaigns of Welch
and Gustafson show that both ran on platforms of oppo-
sition to the Homestake II project; 5) The denial by the
Board was despite the recommendation for approval by
both the Director of the County Community Develop-
ment Department and the Eagle County Planning Com-
mission.
The County asserts that in the wake of the Court’s
preemption rulings there remained sufficient grounds to
affirm the Board’s previous decision. The Board contends
that its action in denying the Cities’ applications in its
original 1988 decision was not predicated on federal per-
mitting actions, and any subsequent federal actions are of
no effect on the county permitting process.
The Cities have responded by stating that the Board
took administrative notice of an EPA letter from Gene
Reetz to Dave Stark (“EPA letter”), which was not a final
201a
agency decision at an earlier proceeding. The EPA letter
was submitted and admitted after the close of the hear-
ing, but prior to deliberation on the original decision. The
Board had indicated during the original hearings, that it
would take notice of final agency decisions. After the
admission of the EPA letter on November 3, 1987, the
Board did not permit the filing of responsive documents
by the parties, nor did it allow cross examination of the
author.
The Cities also claim that the Board lacked the power
of denial. The Cities contend that, although the laws
pertaining to federal permits require compliance with
applicable state laws, any preempted state or local law is
not an “applicable law.” Furthermore, the holdings in
California Coastal Commission v. Granite Rock, 480 U.S. 572,
107 S.Ct. 1419, 94 L.Ed.2d 577 (1988) and Columbia Basin
Land Protection Assn. v. Schlessinger, 643 F.2d 585 (9th Cir.
1981) support their contention that a county may not
deny a permit to operate a federally approved project on
federal land.
THE COURT makes the following Conclusions of
Law:
The Court adopts the findings and conclusions in the
Court’s previous orders, dismissing plaintiff’s First, Sec-
ond, Third, Fourth, Fifth, Sixth, Seventh and Thirteenth
Claims.
When this Court remanded the decision, it asked that
the Board determine whether it would still deny the
permits if the 14 invalid findings, out of 20 total, were
taken away. This implies a re-evaluation of the facts
202a
supporting the remaining findings. This was not done by
the Board.
DENIAL OF DUE PROCESS RIGHTS
After reviewing the transcripts of the proceedings
before the Board in this matter, and the resolutions result-
ing from the hearings, the Court has no choice but to
conclude that the Board denied the Cities due process.
Specifically, the Board concluded that environmental
impacts either would or “may” occur and the Cities failed
to prove adequate mitigation. However, the Board
refused to take official, or administrative, notice of the
federally approved environmental mitigation plans.
Although the Court is sympathetic to the Board’s
dilemma in “cutting off” what zoula be an endless flow
of evidence, the fact is that the federally approved mitiga-
tion plans were the most relevant evidence on the very
topic on which the permit denials were based.
To meet due process standards, all parties must be
given, among other things, the opportunity to offer evi-
dence in explanation or rebuttal. Nesbit v. Industrial Com-
mission, 607 P.2d 1024, 43 Colo.App. 398 (1979), cert. den.
Here, the Board made its decision based on failure of the
Cities’ mitigation plans, without considering federally
required mitigation, and did not allow the Cities to offer
what is arguably the most competent evidence of mitiga-
tion. The reason given for refusal to take notice of the
federally approved pians was violation of the other par-
ties’ due process rights. However, the Board had earlier
taken notice of a letter written by an EPA employee, not a
final agency decision, to which the Cities were not given
203a
a chance to rebut the conclusions contained therein or
cross-examine the author. The Board cannot admit evi-
dence, deny an opportunity for rebuttal and then close
the door on any evidence from the Cities. Denial of the
Cities’ motion to take official notice of the federal docu-
ments was a violation of due process.
A decision maker is not disqualified on due process
grounds simply for having taken a position, even in
public, on policy issues related to a dispute, if there is no
showing that the decision maker is incapable of judging
particular controversy fairly on the basis of its own cir-
cumstances. Mountain States Tel. and Tel. Co. v. Public
Utilities Com’n of State of Colo., 763 P.2d 1020 (1988). Here,
two of the commissioners took public positions against a
general policy of transmountain diversions of water. In
addition, there is evidence that these commissioners pub-
licly indicated a predetermined outcome on this particu-
lar case. However, it is equally probable that the
commissioners were stating their position on the federal
permit decisions, which they later refused to recognize.
Given the lack of direct evidence of bias, the Court
declines to find the actions of the two commissioners to
be a violation of the Cities’ rights on the basis of bias.
ABUSE OF DISCRETION
Although administrative hearings need not comply
with strict rules of evidence, evidence possessing proba-
tive value commonly accepted by reasonable and prudent
persons in the conduct of their affairs should be admit-
ted. Fueston v. City of Colorado Springs, 713 P.2d 1323
(Colo.App. 1985). The Court concludes that making the
204a
decision to deny the permits, in absence of the most
relevant evidence for the Applicant, was an abuse of
discretion.
ARBITRARY AND CAPRICIOUS
In order for a court to set aside a decision by an
administrative body on the ground that it is arbitrary and
capricious, the court must find that the decision is unsup-
ported by any competent evidence. Board of County Com-
missioners of Jefferson County v. Simmons, 494 P.2d 85, 177
Colo. 347 (Colo. 1972). Here, the Board’s decision was
based on deterioration of aquatic habitats, deterioration
of wetlands, changes to the aquatic environment, and
possible effect on fish, wildlife or migratory ranges, and
the Cities failure to demonstrate adequate mitigation.
However, the only evidence in the record concerning
aquatic habitats is found in evidence supplied by the
Cities. Furthermore, there is no evidence in the record
concerning the effect on fish., wildlife or migratory
ranges. Finally, evidence of federally required mitigation
of the deterioration of wetlands was not allowed in the
record.
The final fact found by the Board concerning nui-
sance factors relates only to the building of the project,
and not to its operation. Although the County argues that
it views the Homestake II project differently than other
development within the county because it will be com-
pleted in a wilderness area, this argument is refuted by
the fact that when the Holy Cross Wilderness was cre-
ated, and exemption allowing the development of the
Cities’ previously decreed water rights was part of the
, iii ie sim a
a oP ale al Ra i in tala 3 hae a ve
205a
wilderness designation. Therefore, the area is not desig-
nated as wilderness by the federal government for pur-
poses of the Homestake II project. Furthermore, the
county zoning designation of the area in question is not a
wilderness designation. Consequently, the argument by
the County that the nuisance factors have a greater
impact due to the wilderness status of the land surround-
ing the project is without merit.
In light of the fact that the Board approves other
projects in the county which create the same nuisance
factors, it is hard to say permit denial based legally only
on this factor is supported by competent evidence. Courts
are not to stand idly by and permit the arbitrary and
unjustified exercise of discretion. Colorado State Bd. of
Nurse Examiners v. Hehu, 268 P.2d 401, 129 Colo. 125
(Colo. 1954). The Court concludes that the decision of the
Board is not supported by competent evidence and is
therefore arbitrary and capricious.
OTHER ISSUES
The Cities contend that one of the conditions
imposed by the Planning Commission, that they compen-
sate the county for lost tax revenues, constitutes an illegal
tax. First, there is no evidence that there will be lost
revenues. Second, there is no procedure by which such
“lost” revenues can be determined and, therefore, the
basis of this tax is speculative. Furthermore, it is an
illegal tax, as the county has no authority to tax this
water project.
Finally, the Cities contend the permit application fee
charged is excessive. On the face of it, there appears to be
206a
merit to this assertion. The Court will address that issue
in a separate hearing.
THEREFORE, THE COURT ORDERS:
The Cities’ due process rights were violated in the
course of the denial of their permit applications. The
action of the Board was arbitrary and capricious and an
abuse of discretion. Consequently, the decision denying
the Cities’ permit applications is vacated and remanded
to the Board with directions to approve the three permits
in question, subject to the federally imposed conditions.
The Cities will set a hearing to determine the propri-
ety of the fees charged for the application.
DONE THIS 14 DAY OF July, 1992.
BY THE COURT:
/s/ Wm. Jones
DISTRICT JUDGE
207a
APPENDIX K
DISTRICT COURT, EAGLE COUNTY, COLORADO
Case No. 88 CV 142
ORDER ON RECONSIDERATION
CITY OF COLORADO SPRINGS AND CITY OF
AURORA,
Colorado municipal corporations,
Plaintiffs,
vs.
1. THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF EAGLE, STATE OF COLORADO;
2. GEORGE A. GATES, DONALD H. WELCH, RICH-
ARD L. GUSTAFSON, in their official capacities as indi-
vidual members of said Board;
3. THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF EAGLE, STATE OF COLORADO, in its
capacity as the permitting authority under
Sec.24-65.1-101, et seq., C.R.S.
4. THE EAGLE COUNTY PLANNING COMMISSION;
5. CHARLES RIDGWAY, DAVID SLEMON, DENNIS
GELVIN, DONALD PRICE, in their official capacities as
individual members of said Commission;
6. THE COUNTY OF EAGLE, STATE OF COLORADO;
7. AVON METROPOLITAN DISTRICT;
8. TOWN OF AVON, COLORADO;
10. COLORADO RIVER OUTFITTERS ASSOCIATION;
12. EAGLE COUNTY SHERIFF, in his official capacity;
13. HOLY CROSS WILDERNESS DEFENSE FUND;
15. RED CLIFF WATER AND SANITATION DISTRICT;
16. TOWN OF EAGLE, COLORADO;
17. TOWN OF GYPSUM, COLORADO;
18. TOWN OF MINTURN, COLORADO;
208a
19. TOWN OF REDCLIFF, COLORADO;
23. VAIL VALLEY CONSOLIDATED WATER DISTRICT;
25. EAGLE COUNTY HISTORICAL SOCIETY,
Defendants.
THIS MATTER comes before the Court on the Board
of County Commissioners of the County of Eagle’s (the
“County” or the “Board”) motion for reconsideration, or
in the alternative for entry of partial final judgment pur-
suant to Rule 54(b). Defendants Holy Cross Wilderness
Defense Fund (“HCWDF”) and Vail Valley Consolidated
Water District have also filed motions for reconsideration.
Collectively, the Court will refer to HCWDF, the County,
the Board and Vail Valley Consolidated Water District as
“Defendants.” The Court has read the Motion, Responses
and Replies, and being fully advised, makes the following
findings of fact:
The Defendants request that the Court reconsider its
order of July 14, 1992 (“Order”). In the Order, the Court
determined that the City of Colorado Springs and the
City of Aurora’s (“Cities”) due process rights were vio-
lated in the course of the Board’s denial of their permit
applications. In addition, the Court determined the action
of the Board was arbitrary and capricious and an abuse of
discretion. This Court further ordered the Board to issue
the three permits in question, subject to the conditions
imposed by the federal permitting agencies.
The Board argues that the Court’s Order deprived the
parties, other than the Cities, their due process rights by
denying the other parties an opportunity to rebut the
findings in the Cities’ revised wetlands mitigation plan.
209a
The Board argues that reopening the record was required
in order for it to consider the revised wetlands mitigation
plan; that it was not a legitimate alternative to take offi-
cial notice of the plan, without a chance for the other
parties to respond.
The Board argues that even if it erred in deciding not
to evaluate the Cities’ revised mitigation plan, the rem-
edy ordered by this Court, of directing the Board to issue
the permits, is inappropriate. The Board contends that
judicial review of an inferior tribunal’s discretionary
decision-making is limited to an analysis of whether that
tribunal exceeded its jurisdiction or abused its discretion,
and the court cannot fashion a remedy to cure a pro-
cedural defect. The Board contends that the proper rem-
edy here would be a remand for further proceedings.
Conversely, the Cities argue that the Court was cor-
rect in its rulings contained in the Order. Specifically, the
Cities contend that they were not asking the Board to
reopen the hearing record to take further evidence of
mitigation, but they wished the Board to take notice of
requirements imposed on the Cities by federal agencies
for mitigating wetlands injury. Furthermore, the Cities
contend that the Court was within its discretion in order-
ing the County to issue the disputed permits.
THE COURT makes the following Conclusions of
Law:
Although the Board attempts to rationalize its refusal
to consider the mitigation requirements mandated by
federal agencies as a move to protect due process rights,
this Court is not convinced. The Court did not expect the
210a
Board to reopen the hearing record concerning the speci-
fics of the mitigation plan, but rather assumed the Board
would balance its finding of inadequate mitigation
against the newly required mitigation measures. The
Court is of the opinion that the Board may take official
notice of federal requirements without reopening the
record as to the propriety of the specifics of the mitiga-
tion plan, especially since the other defendants who
object to such a procedure were participants in the fed-
eral agency process that led to the plan. The only issue up
for argument would be the requirements themselves,
which should be easy to discern from federal documents.
Therefore, the Court will not modify its findings of arbi-
trary and capricious or abuse of discretion.
A court may direct a government body to take a
specific action, such as issuing a license, when the Court
determines it would be futile to remand for re-determina-
tion. See Buddy and Lloyd’s Store No. 1, Inc. v. City Council,
337 P.2d 389 (Colo. 1959). The wide discretion which is
vested in a permitting authority in granting or denying
permits is not to be construed as authority to establish a
local public policy, either by express resolution or by
secret agreement, contrary to state and federal law. Id. at
391-392.
However, in this case the Court concludes it is a
better procedure to remand the decision to the Board for
proceedings in conformance with this Court’s orders.
Relief under C.R.C.P. 106(a)(4) is limited to a determina-
tion of whether the Board exceeded its jurisdiction or
abused its discretion. Beaver Meadows v. Board of County
Commissioners, 709 P.2d 928 (Colo. 1985).
2ila
THEREFORE, THE COURT ORDERS:
On reconsideration, the Court vacates that portion of its
previous Order requiring the Board to issue the Cities the
permits. The permitting decision is remanded to the Board
with directions to take official notice of the mitigation
requirements imposed on the Cities by federal agencies. This
Court’s previous Order stands in all other respects and is a
final judgment as defined in Rule 54(b), C.R.C-P.
DONE THIS 27 DAY OF JANUARY, 1993.
BY THE COURT:
/s/ Wm L Jones
DISTRICT JUDGE
CERTIFICATE OF MAILING
HENRY W. IPSEN
ATTORNEY AT LAW
1700 LINCOLN,
SUITE 4100
DENVER, CO 80203
JAMES R. FRITZE
ATTORNEY AT LAW
P.O. BOX 850
EAGLE, CO 81631
GREGORY L. JOHNSON
MARK T. PIFHER
ATTORNEYS AT LAW
104 S. CASCADE AVENUE,
#204
P.O. BOX 240
COLORADO SPRINGS, CO
80901-0240
JOHN W. DUNN
ATTORNEY AT LAW
108 SOUTH FRONTAGE
ROAD WEST
SUITE 204
P.O. BOX 2299
VAIL, CO 81658
WAYNE B. SCHROEDER
T. SHAUN SULLIVAN
ATTORNEYS AT LAW
1700 LINCOLN,
SUITE 3800
DENVER, CO 80203
LORI POTTER
SIERRA CLUB LEGAL
DEFENSE FUND
1631 GLENARM PLACE,
SUITE 300
DENVER, CO 80202
212a
FRANCES M. GREEN JOHN M. DINGESS )
ATTORNEY AT LAW ATTORNEY AT LAW |
1405 ARAPAHOE, #200 7800 EAST UNION
BOULDER, CO 80302 AVENUE
SUITE 200
EDWARD P. SANDS
ATTORNEY AT LAW
MOUNTAIN PLAZA,
SUITE 201
201 WEST THIRD STREET
RIFLE, CO 81650
DENVER, CO 80237
The foregoing order was placed in the U.S. Mail,
postage prepaid and affixed, addressed to the above par-
ties on January 27, 1993.
/s/ Carol S. Martin
213a
APPENDIX L
THE COURT OF APPEALS OF THE
STATE OF COLORADO
Case Number 93CA0386
ORDER
CITY OF COLORADO SPRINGS ET AL V EAGLE
COUNTY ET AL
Upon consideration of the Petition for Rehearing filed by
the Appellant Cross Appellee herein, the Petition is
hereby DENIED. It is ordered that issuance of the Man-
date is stayed to and including January 17, 1995 provided
that if a Petition for Writ of Certiorari is timely filed with
the Supreme Court of the State of Colorado, the stay shall
remain in effect until disposition of the cause by the
Supreme Court.
BY THE COURT:
Davidson, J.
Jones, J.
Rothenberg, J.
DATED: December 15, 1994
214a
APPENDIX M
SUPREME COURT, STATE OF COLORADO
CASE NO. 94SC765
CERTIORARI TO THE COLORADO COURT OF
APPEALS, 93CA0386 & 93CA0412
DISTRICT COURT, EAGLE COUNTY, 88CV142
ORDER OF COURT
(Filed June 6, 1995)
CITY OF COLORADO SPRINGS AND CITY OF
AURORA, COLORADO, municipal corporations,
Petitioners,
V.
THE BOARD OF COUNTY COMMISSIONERS OF THE
COUNTY OF EAGLE, STATE OF COLORADO; GEORGE
A. GATES, JOHNETTE PHILLIPS, JAMES E. JOHNSON,
JR., in their offical [sic] capacities as individual members
of said Board; THE BOARD OF COUNTY COMMISSION-
ERS OF THE COUNTY OF EAGLE, in its capacity as the
permitting authority under § 24-65-101 et seqg., C.R.S.;
THE EAGLE COUNTY PLANNING COMMISSION;
MARK DONALDSON, ROBERT TETHER, ARLENE
QUENON, ROBERT MORRIS, DONALD PRICE, in their
offical [sic] capacities as individual members of said com-
mission; THE COUNTY OF EAGLE, STATE OF COLO-
RADO; HOLY CROSS WILDERNESS DEFENSE FUND;
and VAIL VALLEY CONSOLIDATED WATER DISTRICT,
Respondents.
Upon consideration of the Petition for Writ of Cer-
tiorari to the Colorado Court of Appeals, and after review
rer a
215a
of the record, the briefs, and the judgment of said Court
of Appeals,
IT IS THIS DAY ORDERED that said Petition for Writ
of Certiorari shall be, and same hereby is, DENIED.
BY THE COURT, EN BANC, JUNE 5, 1995.
CHIEF JUSTICE ROVIRA and JUSTICE MUL-
LARKEY would grant as to the following issues:
Whether the court of appeals erred in allowing a
county, under the Colorado Land Use Act, § 24-65.1-101 et
seq., 10B C.R.S. (1988 & 1994 Supp.) (H.B. 1041), to veto a
municipal water project located on federal lands.
Whether the court of appeals erred in finding that the
county did not act arbitrarily and capriciously in denying
the municipalities their requested land use permits.
(Seal)
Whether the court of appeals erred in ruling that
Colorado home rule municipalities do not have standing
to pursue a claim for the regulatory taking of property
without just compensation.
cc: Mark T. Pifher
ANDERSON, GIANUNZIO, DUDE,
PIFHER & LEBEL, P.C.
104 S. Cascade Avenue, #204
P. O. Box 240
Colorado Springs, CO 80901-0240
Lori Potter
Munir Meghjee
SIERRA CLUB LEGAL DEFENSE FUND
1631 Glenarm Place, Suite 300
Denver, CO 80202
216a
James R. Fritze, Esq.
Eagle County Attorney
P.O. Box 850
Eagle, Colorado 81631
John M. Dingess, Esq.
Duncan, Ostrander, Varnell & Dingess, P.C.
7800 East Union Avenue, #200
Denver, CO 80237
Henry W. Ipsen, Esq.
Holme, Roberts & Owen
1700 Lincoln, Suite 4100
Denver, Colorado 80203
Frances M. Green, Esq.
2260 Baseline, Suite 200
Boulder, Colorado 80302
Wayne B. Schroeder, Esq.
Grimshaw & Harring
One United Bank Center, #3800
1700 Lincoln Street
Denver, Colorado 80203
Honorable William L. Jones
Eagle County District Court
Eagle County Courthouse
605 East Chambers Road
P.O. Box 597
Clerk of the District Court
Eagle County District Court
Eagle County Courthouse
605 East Chambers Road
P.O. Box 597
Eagle, CO 81631
Patrick H. Stanford, Clerk
Colorado Court of Appeals
217a
APPENDIX N
DISTRICT COURT, COUNTY OF EAGLE, STATE OF
COLORADO
Civil Action No. 88CV142
MEMORANDUM BRIEF IN SUPPORT OF PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT
CITY OF COLORADO SPRINGS AND
CITY OF AURORA,
Colorado municipal corporations,
Plaintiffs,
VS.
1.
N
o PND
THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF EAGLE, STATE OF COLORADO;
GEORGE A. GATES, DONALD H. WELCH, RICH-
ARD L. GUSTAFSON, in their official capacities as
individual members of said Board;
THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF EAGLE, STATE OF COLORADO,
in its capacity as the permitting authority under
§ 24-65.1-101, et seq., C.R.S.;
THE EAGLE COUNTY PLANNING COMMISSION;
CHARLES RIDGWAY, DAVID SLEMON, DENNIS
GELVIN, DONALD PRICE, in their official capacities
as individual members of said Commission;
THE COUNTY OF EAGLE, STATE OF COLORADO;
AVON METROPOLITAN DISTRICT;
TOWN OF AVON, COLORADO;
COLORADO COUNCIL OF TROUT UNLIMITED;
218a
10. COLORADO RIVER OUTFITTERS ASSOCIATION;
11. DIVISION OF WILDLIFE, STATE OF COLORADO;
12. EAGLE COUNTY SHERIFF, in his official capacity;
13. HOLY CROSS WILDERNESS DEFENSE FUND;
14. JAMES FRANKLIN LAMONT;
15. RED CLIFF WATER AND SANITATION DISTRICT;
16. TOWN OF EAGLE, COLORADO;
17. TOWN OF GYPSUM, COLORADO;
18. TOWN OF MINTURN, COLORADO;
19. TOWN OF REDCLIFF, COLORADO;
20. TOWN OF VAIL, COLORADO;
21. UPPER EAGLE REGIONAL WATER AUTHORITY;
22. UPPER EAGLE VALLEY SANITATION DISTRICT;
23. VAIL VALLEY CONSOLIDATED WATER DISTRICT;
24. VAIL ASSOCIATES, INC.; and
25. EAGLE COUNTY HISTORICAL SOCIETY,
Defendants.
* * *
C. THE BOARD HAS ATTEMPTED TO REGU-
LATE AREAS PRE-EMPTED BY FEDERAL
LAW.
Eagle County cannot apply its 1041 regulations to
this permitting process because it is pre-empted from so
doing by virtue of federal law. As previously indicated,
the Cities’ project is to be located entirely upon federal
ne ee eee en en ie eee
a RENE NTE
‘4
:
ee .
Yi :
*
219a
Forest Service lands. The Forest Service Management
Plan (Record, Vol. I, Exh. A-11) specifically states that the
White River National rest is for multiple use. This is
consistent with the language of the Federal Land Policy
Management Act (FLPMA) 43 U.S.C.A. § 1701, § 1732 and
the language of the National Forest Management Act, 16
U.S.C.A. § 1600, et seq., (West 1985) both of which encour-
age multiple use, including water resource development.
Pursuant to federal requirements under the National
Environmental Policy Act (NEPA), 42 U.S.C.A. § 4321, et
seq., (West 1977) the Forest Service performed an environ-
mental analysis which lead to a number of public hear-
ings, the submission of numerous written comments, and
the eventual issuance of a Final Environmental Impact
Statement (FEIS). (Record, Vol. I, Exh. A-l.) Eagle County
took a very active roll [sic] in this environmental review
process (Appendix J, pp. 14-17, Record, Vol. I, Exh. A-l),
and had numerous opportunities to place its concerns of
record and have them addressed by the federal agencies.
The Cities also obtained a FLPMA permit (Appendix C),
which permit provided the Cities with the necessary For-
est Service easement. As previously stated, this permit
contained numerous mitigation measures designed to
ensure that the project was constructed and operated in
an environmentally sound fashion. In addition, the Cities
received a Section 404 Permit from the U.S. Corps of
Engineers (Appendix D), which permit also embodied
numerous conditions addressing various environmental
issues including aesthetics, water quality, and wetlands
preservation. As to the latter concern, the Corps’ permit
specifically stated that the Cities had to devise a plan to
“prevent the loss of wetlands”. (Appendix D, p. 5.) Any
— ee ee ae
220a
mitigation utilized in conjunction with such plan “shall
not cause more than minimal visual intrusion to the wil-
derness area, and shall not have significant environmen-
tal impacts”. (Appendix D, p. 3.) It should also be noted
that the Corps found the alternative being permitted to
be consistent with §§ 101, 401, and 404 of the Clean Water
Act, NEPA, the Endangered Species Act, the Fish and
Wildlife Coordination Act, policies concerning scenic and
recreational values, and policies concerning energy con-
servation. (Appendix D, pp. 4-5.) Nevertheless, despite
the above federal approvals, the numerous protective
conditions contained in such approvals, Eagle County’s
participation in the federal process, and the location of
the project on federal lands, the Board made a contrary
finding as to the acceptability of the project and denied the
requested local land use.
The federal pre-emption doctrine has been succinctly
stated by the court in California Coastal Commission v.
Granite Rock Company, 480 U.S. 572, 107 S.Ct. 1419, 94
L.Ed.2d 577, 592 (1987):
State law can be pre-empted in either of two
general ways. If Congress evidences an intent to
occupy a given field, any state law falling within
that field is pre-empted. [Citations deleted.] If
Congress has not entirely displaced state regula-
tion over the matter in question, state law is still
pre-empted to the extent it actually conflicts
with federal law, that is, when it is impossible to
comply with both state and federal law, [citation
deleted] or where the state law stands as an
obstacle to the accomplishment of the full pur-
poses and objectives of Congress. [Citations
deleted. |]
221a
This is the same analysis employed by the Colorado
Supreme Court in Brubaker v. Board of County Commission-
ers, 652 P.2d 1050, 1055 (Colo.1982). Both of these deci-
sions inexorably lead to the conclusion that the Board
could not deny the permits being sought by the Cities.
In Brubaker, plaintiff sought from the Board of
County Commissioners a special use permit for purposes
of conducting certain mining operations which had
received federal approval. The Board denied the permit
application on the grounds that the activity was inconsis-
tent with the long-range plans of the County and incom-
patible with uses on surrounding properties. However,
the Colorado Supreme Court held that such a denial was
pre-empted by federal law as it stood as an “obstacle to
the accomplishment and execution of the full purposes
and objectives of Congress”. Brubaker v. Board of County
Commissioners, 652 P.2d at 1055.
This activity has been subjected to the necessary
federal review and approvals, but the Board
asserts that it may now deny the appellants
their right to use the land in this manner. The
Board seeks not merely to supplement the fed-
eral scheme, but to prohibit the very activities
contemplated and authorized by federal law.
Such a veto power is not consistent with the
Supremacy Clause.
Brubaker v. Board of County Commissioners, 652 P.2d at
1056. Though acknowledging that it may be possible to
impose “reasonable” environmental conditions upon
such an activity, the Court chastised the County for
attempting not to regulate, but to “prohibit” federally
222a
authorized activities. Brubaker v. Board of County Commis-
sioners, 652 P.2d at 1059.
In so holding, the Brubaker court cited with approval
the decision of the Ninth Circuit in Ventura County v. Gulf
Oil Corp., 601 F.2d 1080 (9th Cir. 1979) aff’d mem. 445 U.S.
947 (1980), wherein Gulf sought to secure from the county
an open space permit prior to undertaking its mineral
exploration activities on federal lands within the county.
In holding that the governing federal legislation pre-
empted such county regulation, as there existed an
impermissible conflict between the two bodies of law, the
court stated:
Despite this extensive federal scheme reflecting
concern for the local environment as well as
development of the nation’s resources, Ventura
demands a right of final approval. Ventura seeks
to prohibit further activity by Gulf until it
secures an Open Space Use Permit which may
be issued on whatever conditions Ventura deter-
mines appropriate, or which may never be
issued at all. The federal Government has autho-
rized a specific use of federal lands, and Ventura
cannot prohibit that use, either temporarily or
permanently, in an attempt to substitute its
judgment for that of Congress.
Ventura County v. Gulf Oil Corp., 601 F.2d at 1084. See also:
Federal Power Commission v. Oregon, 349 U.S. 435 (1955).
The Ventura court then continued:
Finally, we are reassured in the correctness of
our decision by policy considerations implicitly
reflected in the structure and operation of the
Mineral Lands Leasing Act of 1920 and the
National Environmental Policy Act of 1969 (42
nD RU URMie a Fabh haatir og tages eas
223a
U.S.C. §§ 4321, et seq.). As Ventura recognized in
filing its second amended complaint, the
National Environmental Protection Act (NEPA)
and the guidelines, regulations, and executive
orders issued in pursuance of that act, mandate
extensive federal consideration and federal-local
cooperation concerning the local, environmental
impact of federal action under the Mineral
Lands Leasing Act. If federal officials fail to
comply with these requirements, Ventura has a
remedy against those officials.
Ventura County v. Gulf Oil Corp., 601 F.2d at 1086. Sim-
ilarly, in the present instance, the County seeks to pro-
hibit the federally authorized activity, having denied the
requested permits. It does so even though the NEPA
process has been invoked and the County has partici-
pated therein.1¢ Such conduct is contrary to the holdings
in both Brubaker, 652 P.2d 1050 (Colo.1982) and Ventura
County, 601 F.2d 1080 (9th Cir. 1979) aff’d mem. 445 U.S.
947 (1980).
The recent decision by the United States Supreme
Court in California Coastal Commission v. Granite Rock, 480
U.S. 572, 107 S.Ct. 1419, 94 L.Ed.2d 577, is consistent with
the above holdings. Although the sharply divided Court
ruled that reasonable state environmental regulations
covering forest service land were not per se pre-empted
by federal law, the five to four majority described this
16 The Board did note an indication of “deficiencies in the
Environmenta! Impact Statement,” (Appendix F, p. 7, Finding
No. 12) withou’ tying their finding to any local criteria. If the
Board was dissatisfied with the EIS process, it could have
sought review thereof. Instead, it sat on its hands.
224a
holding as a “narrow” rejection of a “purely facial chal-
lenge.” Granite Rock, L.Ed.2d at 591, 599. In Granite Rock,
the State had not participated in the Federal permit pro-
cess. Moreover, Granite Rock had not even applied for a
State permit, arguing that there was no possible set of
conditions that the State could place on its permit that
would not conflict with federal law. It therefore had
“ ... lost the possibility of making this argument [prohi-
bition] in this litigation”. Granite Rock, L.Ed.2d at 596.
Significantly, the majority decision assumed without
deciding, an assumption deemed “correct” in the dissent
by Justices White and Scalia and consistent with the
decision in Ventura County, that “the combination of the
NFMA and the FLPMA pre-empt the extension of state
land use plans .. . in national forest lands”. Granite Rock,
L.Ed.2d at 594. The Court went on to stress that the State
was not asking Granite Rock to comply with a local land
use plan or zoning ordinance, but rather with the regula-
tions of a State Commission concerned with “compliance
with the environmental criteria in the Coastal Act itself”.
Granite Rock, L.Ed.2d at 595 n.2. The Court accepted the
State’s assertion that it did not seek to prohibit the activ-
ity [mining], but only to regulate the environmental
aspects of the activity. Granite Rock, L.Ed.2d at 595. The
Court placed emphasis on the State’s assertion that the
federal legislation did not pre-empt state environmental
regulation of federal land “unless the regulation prohibits
mining altogether” (Court’s emphasis) and cautioned that
there could be “state environmental regulation so severe
that a particular land use would become commercially
impracticable”. Granite Rock, L.Ed.2d at 595. However,
since Granite Rock had not applied for the state permit, it
ee
iy ated
———
ee ee NY eee Pe ee ee Oe Tee OD eae ee ee a
225a
was unable to show the conditions which the State would
have placed upon its permit. Given the “as yet uniden-
tified conflicts with the federal scheme” and the “barren
record,” the Court cautiously accepted the possibility that
the State might impose reasonable environmental regula-
tions. Granite Rock, L.Ed.2d at 600.
The facts of the instant case are clearly different than
those presented in Granite Rock, and are indeed on point
with those in the Brubaker, 652 P.2d 1050 (Colo.1982)
decision. In the present case, the County actively partici-
pated in the federal process. To the extent the County is
now seeking to raise environmental concerns they were
specifically addressed in that process.!” Further, unlike
17 Even environmental concerns, assuming they can be
addressed by the local entity, cannot be of a general or generic
character or they will run a-foul of the pre-emption doctrine.
Without deciding to what extent the City might
impose additional environmental restrictions on the
facility in exercising its traditional land use authority,
I find the denial of the permit based on generalized
environmental or health and safety concerns, where
the EPA has already found the health, safety, and
environmental risk to be acceptable, is impermissible
under the doctrine of federal pre-emption. Allowing
local governments to impose a permit requirement
and then to deny the permit on unspecified environ-
mental grounds, without articulating specific health
or safety concerns or setting forth particular environ-
mental requirements which the facility must meet,
surely frustrates congressional intent behind the
whole research, development, and demonstration
program.
Ogden Environmental Services v. City of San Diego, 687 F.Supp.
1436, 1448 (S.D. CA 1988). Just such inadequate articulation is in
evidence in this case.
226a
Granite Rock, the Cities applied for the local permit, and
there is now a record showing the reasons for rejection by
the local authority, i.e. a record establishing the irrecon-
cilable conflict. Indeed, this Court is now faced with a
local entity attempting to enforce what has been deter-
mined by the Tenth Circuit to be local regulations, City
and County of Denver v. Bergland, 695 F.2d 465, 485 (10th
Cir. 1982), and to either absolutely prohibit the activity, in
the case of the Board, or to impose conditions so severe as
to make the Project commercially impracticable, in the
case of the Planning Commission. Thus, not only is the
state regulatory scheme required by Granite Rock absent,
but even if regulations in question were being imposed
by the state, they would not pass the “reasonableness”
test.
In addition, the County is in fact attempting to
impose “land use regulations,” not environmental regula-
tions. This includes those regulations adopted under
§ 24-65.1-101, et seq., 10B C.R.S. (1988), which have been
characterized by the legislature as “land use planning”
tools and codified as part of the land use planning stat-
utes.!8 See § 24-65.1-101(1)(c), 10BC.R.S. (1988). The “situ-
ation in the present case is the very result feared by the
dissenting opinion in Granite Rock, i.e. “duplicative” pro-
cesses wherein a local regulator has given itself final
18 In City and County of Denver v. Bergland, 517 F.Supp. 155,
174 n.18 (D.C. CO 1981), even Grand County seemingly admit-
ted that its 1041 regulations fell within the category of “police
power regulations involving land use, construction permits and
zoning,” i.e. land use regulation.
227a
authority to determine how federal lands are to be used.
Granite Rock, L.Ed.2d at 602.
Indeed, J. Scalia ends his opinion with the following
observation:
If environmental control is, as California now
assures us, its limited objective in this case, then
it must simply achieve that objective by means other
than a land use control scheme. If and when it does
so, we may have occasion to decide (as we need
not today) whether state environmental controls
are also pre-empted. More likely, however, the
question will not arise in the future, as it has not
arisen in the past, because of the Federal Gov-
ernments voluntary accommodation of state
environmental concerns — an accommodation
that could not occur here only because Califor-
nia neglected to participate in the proceedings.
Not only has the above-referenced “accommodation”
occurred in this instance, but the County persists in its
attempt to impose its own controls through its local land
use plan. This Court cannot allow such an outcome. Bru-
baker v. Board of County Commissioners, supra, is the con-
trolling law in Colorado and its analysis dictates the
result in this litigation. Federal pre-emption must be
found to exist.
228a
DISTRICT COURT, COUNTY OF EAGLE, STATE OF
COLORADO
Civil Action No. 88CV142
MEMORANDUM BRIEF IN RESPONSE TO EAGLE
COUNTY’S MOTION TO DISMISS
CITY OF COLORADO SPRINGS AND
CITY OF AURORA,
Colorado municipal corporations,
Plaintiffs,
VS.
1.
o oN
THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF EAGLE, STATE OF COLORADO;
GEORGE A. GATES, DONALD H. WELCH, RICH-
ARD L. GUSTAFSON, in their official capacities as
individual members of said Board;
THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF EAGLE, STATE OF COLORADO,
in its capacity as the permitting authority under
§ 24-65.1-101, et seq., C.R.S.;
THE EAGLE COUNTY PLANNING COMMISSION;
CHARLES RIDGWAY, DAVID SLEMON, DENNIS
GELVIN, DONALD PRICE, in their official capacities
as individual members of said Commission;
THE COUNTY OF EAGLE, STATE OF COLORADO;
AVON METROPOLITAN DISTRICT;
TOWN OF AVON, COLORADO;
COLORADO COUNCIL OF TROUT UNLIMITED;
LAA FMP 4 5h trranginreyrceds
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10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
229a
COLORADO RIVER OUTFITTERS ASSOCIATION;
DIVISION OF WILDLIFE, STATE OF COLORADO;
EAGLE COUNTY SHERIFF, in his official capacity;
HOLY CROSS WILDERNESS DEFENSE FUND;
JAMES FRANKLIN LAMONT;
RED CLIFF WATER AND SANITATION DISTRICT;
TOWN OF EAGLE, COLORADO;
TOWN OF GYPSUM, COLORADO;
TOWN OF MINTURN, COLORADO;
TOWN OF REDCLIFF, COLORADO;
TOWN OF VAIL, COLORADO;
UPPER EAGLE REGIONAL WATER AUTHORITY;
UPPER EAGLE VALLEY SANITATION DISTRICT;
VAIL VALLEY CONSOLIDATED WATER DISTRICT;
VAIL ASSOCIATES, INC.; and
EAGLE COUNTY HISTORICAL SOCIETY,
Defendants.
230a
I. PLAINTIFFS HAVE STANDING TO ASSERT
THEIR SIXTH AND TWELFTH CLAIMS FOR
RELIEF AS HOME RULE MUNICIPALITIES IN
THEIR CAPACITY AS OWNERS OF CERTAIN
DECREED CONDITIONAL WATER RIGHTS.
A. The “per se” exclusionary rule on standing, as
developed by the federal courts, should not
apply.
Defendants assert that Plaintiffs have no standing to
bring the Sixth and Twelfth Claims. Defendants’ assertion
is not based upon the standing test announced in Wimb-
erly v. Ettenberg, 194 Colo. 163, 470 P.2d 535 (1979), i.e.
“(t]he proper inquiry on standing is whether the plaintiff
has suffered injury in fact to a legally protected interest
as contemplated by statutory or constitutional provi-
sions.” Wimberly, supra at 168. Rather, Defendants assert
that the mere identity of Plaintiifs is an absolute bar to
standing. That is to say, Plaintiffs are precluded “per se”
from bringing such claims.
Defendants rely entirely on a line of cases which,
they claim, hold that a municipality can never have
standing to sue the state of which it is a creature or the
political subdivisions of that state. Defendants then assert
that the Colorado Supreme Court has recently adopted
this position in a footnote (dicta) to Town of Orchard City
v. Board of County Commissioners of Delta County, 751 P.2d
1003 (Colo. 1988). However, a close examination of both
the applicable federal and Colorado cases upon the subv-
ject inexorably lead to a different conclusion.
One must start such an examination with a review of
Justice White’s dissent from the denial of certiorari in
23l1a
City of Lake Tahoe v. California Tahoe Regional Planning
Agency, 449 U.S. 1039, 66 L.Ed.2d 502, 101 S.Ct. 619 (1980)
which is also cited by the Colorado Supreme Court in the
Orchard City footnote quoted by Defendants. In that dis-
sent, Justice White was critical of what he termed the
“per se rule” of no standing as cited by Defendants
herein, finding it to be inconsistent with the decision in
Board of Education v. Allen, 392 U.S. 236 (1968). In addi-
tion, he referenced Rogers v. Brockette, 588 F.2d 1057 (5th
Cir. 1979), upon which a conflicting line of cases has
developed.
The Rogers court held that while some of the lan-
guage in the opinions cited by Defendants is indeed
broad enough to seemingly support Defendants’ argu-
ment, said decisions, properly interpreted, do not sup-
port the conclusions advocated by Defendants. Rogers v.
Brockette, 588 F.2d at 1067-1071. As explained by the
Rogers court, the line of cases relied upon by the Defen-
dants are the descendants of Trustees of Dartmouth College
v. Woodward, 17 U.S. (4 Wheat.) 518, 4 L.Ed 629 (1919)
wherein New Hampshire was prohibited from modifying
a charter that the colonial government had issued to
Dartmouth College by virtue of the contract clause to the
U.S. Constitution. In the famous dicta to that decision,
Chief Justice Marshall sought to avoid a situation
wherein citizens of the state could claim they had a
“contract” with the state, because such an interpretation
would bar the state from impairing any such contract.
This would leave a state practically unable to legislate or
allocate political power within its subdivisions. Justice
Marshall’s solution was to enunciate the principle that
certain guarantees of the U.S. Constitution should not be
232a
interpreted to interfere with a state’s control over the
allocation of its political powers.!
In Rogers, Judge Goldberg also described Trenton v.
New Jersey, 262 U.S. 182, 43 S.Ct. 534, 67 L.Ed 937 (1923),
which is cited by Defendants, as “typical” of the series of
cases following Dartmouth. Rogers v. Brockette, 588 F.2d at
1067. In that case, the state modified a charter that it had
previously given to the municipality. In holding that the
municipality had no standing, the Court extensively
quoted from Hunter v. Pittsburgh, 207 U.S. 161, 178, 179,
52 L.Ed. 151, 159, 160, 28 S.Ct. 40 (1907), which is “usually
considered the leading example.” Rogers v. Brockette, 588
F.2d at 1067.2 However, when these cases were decided,
1 The line of cases that followed Dartmouth were faithful to
Justice Marshall’s holding that the Constitution does not inter-
fere with the internal political organization of states. In each
case the Court reviewed the merits of the claim, and determined
that the municipality had no right under the particular constitu-
tional provisions it invoked. Although these decisions were
framed in terms of standing, the decisions are actually substan-
tive interpretations of the constitutional provisions involved in
those cases. Rogers v. Brockette, 588 F.2d at 1070.
2 The Hunter case, which involved a consolidation of the
cities of Allegheny and Pittsburgh, contains a classic description
of the unlimited power of states over municipalities. Its ratio-
nale is that municipal corporations, as “creatures of the state,”
exist by virtue of legislative enactments and can at any time be
terminated by the State. Other decisions in this line of cases
speak of a theoretical unity of interests, intrawiural disputes
between political subdivisions charged with the same statewide
goal, and the incongruity of a subordinate local agency suing its
administrative and supervisory superior over the state alloca-
tion of political power. The logic of these decisions is that the
boundaries of a municipality were given by the State and a
municipality has no property right to those boundaries as
233a
“standing” meant something different from what it
means today. Rogers v. Brockette, 588 F.2d at 1070. The old
legal standing test went to the merits of the case. Associa-
tion of Data Processing Service Organizations v. Camp, 397
U.S. 150, 153 (1970). However, by resolving these substan-
tive issues under the rubric of standing principles, these
decisions have been misinterpreted as a broad denial of
access to the courts. As a result, substantive issues have
become distorted and parties have been deprived of the
full consideration they deserved. Municipal Corporation
Standing To Sue The State: Rogers v. Brockette, 93
Harv.L.Rev. 586 at 590, 591 (1980).3 Plaintiffs submit that
the Supreme Court implicitly acknowledged, in Hunter v.
Pittsburgh, that a municipality can raise the claim that its
“private” contract and property rights have been
against its creator. Cf: Township of River Vale v. Town of Orange-
town, 403 F.2d 684 (2nd Cir. 1968) (municipality is a person
within meaning of Fourteenth Amendment); City of Santa Clara
v. Andrus, 572 F.2d 660 (9th Cir. 1978).
3 The existing degree of confusion is illustrated by the fact
that Rogers v. Brockette is confirmed by the same line of cases
cited by Defendants. As Judge Goldberg points out, the Hunter
court said:
It will be observed that, in describing the absolute
power of the state over the property of municipal
corporations, we have not extended it beyond property
held or used for governmental purposes. Such corpora-
tions are sometimes authorized to hold and do hold
property for the same purposes that property is held by
private corporations or individuals . . . it has been held
that, as to the latter class of property, the legislature is
not omnipotent. (emphasis added) 28 S.Ct. at 47.
Rogers v. Brockette, 588 F.2d at 1069.
234a
impaired. Such is explicitly stated by Justice Goldberg in
Rogers v. Brockette, 588 F.2d at 1069, 1070.
The Supreme Court subsequently discussed its prior
decisions in this area in Gomillion v. Lightfoot, 364 U.S.
339, 5 L.Ed. 110, 81 S.Ct. 125 (1960). While recognizing
that the numerous decisions dealing with the creation of
municipalities and with taxation clearly state that the
Due Process Clause affords no immunity against “mere
inequalities in tax burdens. . . as an indirect consequence
of a State’s exercise of its political powers”, the Court
noted that the Hunter opinion itself “intimates that a state
legislature may not be omnipotent even as to the disposi-
tion of some types of property owned by municipal cor-
porations.” Gomillion, supra, 5 L.Ed. at 114 and 115. The
Court warned that “exalting” the State’s political power
to an absolute would “misconceive the reach and rule” of
Hunter and related cases relied upon by Defendants and
stated:
. a correct reading of this seemingly uncon-
fined dicta of Hunter and kindred cases is not
that the State has plenary power to manipulate
in every conceivable way, for every conceivable
purpose, the affairs of its municipal corpora-
tions, but rather that the State’s authority is
unrestrained by the particular prohibitions of
the Constitution considered in those cases.
Gomillion v. Lightfoot, 5 L.Ed.2d at 114-115.
Thus, as noted above, a number of courts have called
the “per se rule” into question. This includes one of the
cases cited by Defendants, U.S. v. State of Alabama, 791
F.2d 1450 (4th Cir. 1986). The court in U.S. State of Ala-
bama held that the per se rule did not apply in that circuit,
235a
but went on to hold that “[i]n the instant case, .. .
ASU ... may not raise a Fourteenth Amendment
claim... .” (emphasis added). In that case, Alabama State
University was attempting to realign itself as a plaintiff in
a case against the State Board of Education. Nevertheless,
it is significant that the U.S. v. Alabama court upheld the
rights of individual intervenors to maintain the action
against the Board of Education. This is essentially the
position taken by the Colorado Supreme Court in the
Orchard City case cited above, where individual citizens
were allowed to pursue the tax dispute against the
county.
Unless this Court wishes to add individual citizens of
Colorado Springs and Aurora as Plaintiffs to this action,
the present Plaintiffs are arguably the only parties that
may present the constitutional issues which are correctly
invoked in the present case. If defendants succeed in
advancing their distorted view of standing, the Defen-
dants would be insulated from scrutiny. However, a care-
ful review of the issues in the instant case reveals that the
cases cited by Defendants are not dispositive of this
dispute, as a “per se” rule should not apply, and, in fact,
has never been applied by the Colorado courts.
* * *
C. Plaintiffs have standing in their proprietary
capacity.
Further, in the Sixth and Twelfth Claims for Relief,
Plaintiffs are before this Court in a dual capacity, i.e. in
their governmental capacity and in their proprietary
capacity as the owners of decreed conditional water
236a
rights. Defendants’ argument improperly concentrates
exclusively on the first capacity. However,
. it is well settled that a city in operating a
water works system acts in its proprietary or
business, and not in its political or govern-
mental capacity, and in so acting is governed by
the same rules that apply to a private corpora-
tion.
County of Larimer v. City of Fort Collins, 68 Colo. 364, 367,
189 P. 929, 930 (1920). Although the distinction between
“governmental” and “proprietary” capacity has been crit-
icized and/or abolished for liability purposes, Clark v.
Town of Estes Park, 686 P.2d 777 (Colo. 1984), the Colorado
Supreme Court (en banc) has reaffirmed the distinction in
municipal water supply cases as recently as 1985. Denver
v. Colorado River Water Conservation District, 696 P.2d 730
(Colo. 1985).
The “per se” rule only makes sense where the cases
deal with deliberate allocations of political authority
between the state and its political subdivisions. None of
the rationale about “creatures of the state” is relevant
where, as here, the municipality is acting in a proprietary
capacity in the clearest sense of that distinction.®
5 It cannot be forgotten that Plaintiffs are acting as water
utilities in the development of those water rights for which
county permits are being sought. It is generally recognized that
public utilities possess constitutional due process rights. See:
Long Island Lighting Co. v. Cuomo, 666 F.Supp. 370 (N.D. N.Y.
1987); Potomac Elec. Power v. Dist. of Columbia Gov., 651 F.Supp.
907 (D. D.C. 1986).
237a
D. The “per se” exclusionary rule on standing
does not apply to Colorado home rule munici-
palities.
In addition, the “creature of the state” rationale can
never apply to home rule municipalities in the State of
Colorado. The home rule provisions of the Colorado Con-
stitution provide that Plaintiffs are no longer creatures of
the state legislature but derive their powers directly from
the Colorado Constitution.
The very essence of a “Home Rule City” is
embodied in the constitutional mandate that in
its local and municipal affairs the City has full,
complete and exclusive authority. The legisla-
ture is powerless to change this essential con-
cept of home rule.
Four-County Metropolitan Capital Improvement District v.
Board of County Commissioners, 149 Colo. 284, 304, 369 P.2d
67 (1962). The language found in Hunter and Trenton
allowing the state “at its pleasure” to “modify or with-
draw all such powers”, to “take without compensation
such property”, “repeal the charter, and destroy the cor-
poration” is simply not relevant.
In fact, the Colorado Supreme Court has recently
ruled that home rule cities have standing to challenge the
validity of state statutes under certain circumstances. In
Denver Urban Renewal Authority v. Byrne, 618 P.2d 1374
(Colo. 1980), the Court reviewed the rationale of the per
se rule, noting a number of cases which held that political
subdivisions of the state exist only “for the convenient
administration of the state government, created to carry
out the will of the state.” The Court harmonized this rule
with the standing rule in Wimberly v. Ettenberg supra, by
238a
reasoning that while political subdivisions of the state
may have suffered an injury, the “difficult question is
whether a legally protected interest is implicated.” Denver
Urban Renewal Authority v. Byrne, 618 P.2d at 1380. The
Court ruled that the Colorado Constitution confers a
legally protected interest in local concerns upon a home
rule city which is not inferior to the General Assembly.
Denver Urban Renewal Authority v. Byrne, 618 P.2d at 1381.
In so holding, the Court quoted Four-County, supra:
In numerous opinions handed down by this
court extended over a period of fifty years, it
has been made perfectly clear that when the
people adopted Article XX they conferred every
power theretofore possessed by the legislature to
authorize municipalities to function in local and
municipal affairs. (emphasis in original.) 360
P.2d at 72.
The result does not change when the issue is one of
statewide concern. Although Plaintiffs maintain in their
Second and Third Claims for Relief that the activities in
issue are matters of local concern, Plaintiffs would still
have standing if the issue was held to be one of statewide
concern. In City of Colorado Springs v. State of Colorado, 626
P.2d 1122 (Colo. 1981), the City was found to have stand-
ing to argue constitutional violations, the Court holding
that a matter of statewide concern (establishment of fire-
men’s pension plans) was a local matter to the extent to
which a home rule city must budget, assess and collect
taxes to provide financial support for the plan. “To hold
that no injury in fact would result to the city’s constitu-
tionally protected interests . . . would be to ignore real-
ities of local government.” City of Colorado Springs v. State,
626 P.2d at 1127. Similarly, in the present instance, the
239a
development and use of the Cities water rights involves
the exercise of purely local prerogatives which must be
respected.
240a
COURT OF APPEALS, STATE OF COLORADO
Case No. __
NOTICE OF APPEAL
DISTRICT COURT, COUNTY OF EAGLE,
STATE OF COLORADO Civil Action No. 88CV142,
Judge William L. Jones
CITY OF COLORADO SPRINGS
AND CITY OF AURORA,
Colorado municipal corporations,
Plaintiffs-Appellees,
1. THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF EAGLE, STATE OF COLORADO;
2. GEORGE A. GATES, DONALD H. WELCH, RICH-
ARD L. GUSTAFSON, in their official capacities as
individual members of said Board;
3. THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF EAGLE, STATE OF COLORADO,
in its capacity as the permitting authority under
§ 24-65.1-101 et seqg., C.R.S.;
THE EAGLE COUNTY PLANNING COMMISSION;
CHARLES RIDGWAY, DAVID SLEMON, DENNIS
GELVIN, DONALD PRICE, in their official capacities
as individual members of said Commission;
THE COUNTY OF EAGLE, STATE OF COLORADO;
AVON METROPOLITAN DISTRICT;
TOWN OF AVON, COLORADO;
i >
OND
24la
COLORADO COUNCIL OF TROUT UNLIMITED;
COLORADO RIVER OUTFITTERS ASSOCIATION;
EAGLE COUNTY SHERIFF; in his official capacity;
HOLY CROSS WILDERNESS DEFENSE FUND;
RED CLIFF WATER AND SANITATION DISTRICT;
TOWN OF EAGLE, COLORADO;
TOWN OF GYPSUM, COLORADO;
TOWN OF MINTURN, COLORADO;
TOWN OF REDCLIFF, COLORADO;
TOWN OF VAIL, COLORADO;
UPPER EAGLE REGIONAL WATER AUTHORITY;
UPPER EAGLE VALLEY SANITATION DISTRICT;
VAIL VALLEY CONSOLIDATED WATER DISTRICT;
VAIL ASSOCIATES, INC.; and
EAGLE COUNTY HISTORICAL SOCIETY,
Defendants-Appellants.
* + *
5. Whether the Board is prohibited on federal pre-
emption grounds from regulating federally-approved
activities on U.S. Forest Service lands in order to mitigate
or reduce their environmental impacts, and whether the
Court’s invalidation of the Board’s findings numbered
(6, 10, 19), 11(14, 15), III(A) (1,2), I1(B)(1, 2), IV(1, 2) on
that basis was proper.
* * *
242a
COURT OF APPEALS, STATE OF COLORADO
Case No. 93CA386
NOTICE OF CROSS-APPEAL
CITY OF COLORADO SPRINGS
AND CITY OF AURORA,
Colorado municipal corporations,
Plaintiffs-Appellees /Cross-Appellants,
1. THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF EAGLE, STATE OF COLORADO;
2. GEORGE A. GATES, DONALD H. WELCH, RICH-
ARD L. GUSTAFSON, in their official capacities as
individual members of said Board;
3. THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF EAGLE, STATE OF COLORADO,
in its capacity as the permitting authority under
§ 24-65.1-101 et seq., C.R.S.;
THE EAGLE COUNTY PLANNING COMMISSION;
CHARLES RIDGWAY, DAVID SLEMON, DENNIS
GELVIN, DONALD PRICE, in their official capacities
as individual members of said Commission;
THE COUNTY OF EAGLE, STATE OF COLORADO;
AVON METROPOLITAN DISTRICT;
TOWN OF AVON, COLORADO;
COLORADO COUNCIL OF TROUT UNLIMITED;
COLORADO RIVER OUTFITTERS ASSOCIATION;
EAGLE COUNTY SHERIFF, in his official capacity;
i >
Se CPN
— ©
243a
12. HOLY CROSS WILDERNESS DEFENSE FUND;
13. RED CLIFF WATER AND SANITATION DISTRICT;
14. TOWN OF EAGLE, COLORADO;
15. TOWN OF GYPSUM, COLORADO;
16. TOWN OF MINTURN, COLORADO;
17. TOWN OF REDCLIFF, COLORADO;
18. TOWN OF VAIL, COLORADO;
19. UPPER EAGLE REGIONAL WATER AUTHORITY;
20. UPPER EAGLE VALLEY SANITATION DISTRICT;
21. VAIL VALLEY CONSOLIDATED WATER DISTRICT;
22. VAIL ASSOCIATES, INC.; and
23. EAGLE COUNTY HISTORICAL SOCIETY,
Defendants-Appellants.
This cross-appeal is initiated by Plaintiffs-Appellees /
Cross-Appellants, City of Colorado Springs and City of
Aurora, Colorado home rule municipal corporations.
* + *
Il. ISSUES TO BE RAISED ON APPEAL
1. Are the Cities “citizens” for purposes of the Fifth
and Fourteenth Amendments of the U.S. Constitution,
with standing to pursue alleged due process violations,
including the taking of property without just compensa-
tion?
244a
COLORADO COURT OF APPEALS Tr. Ct. No. 88CV142
Case No. 93 CA 386 and 93 CA 412
COMBINED ANSWER AND REPLY BRIEF OF PLAIN-
TIFF-APPELLANTS, CROSS-APPELLANTS, THE
CITIES OF AURORA AND COLORADO SPRINGS
CITY OF COLORADO SPRINGS AND
CITY OF AURORA,
Colorado municipal corporations,
Plaintiffs-Appellants-Cross-Appellees,
v.
THE BOARD OF COUNTY COMMISSIONERS OF THE
COUNTY OF EAGLE, STATE OF COLORADO; GEORGE
A. GATES, JOHNETTE PHILLIPS, JAMES E. JOHNSON,
JR., in their official capacities as individual members of
said Board; THE BOARD OF COUNTY COMMISSION-
ERS OF THE COUNTY EAGLE, STATE OF COLORADO,
in its capacity as the permitting authority under
§24-65.1-101 et seq., C.R.S.; THE EAGLE COUNTY PLAN-
NING COMMISSION; MARK DONALDSON, ROBERT
TETHER, ARLENE QUENON, ROBERT MORRIS,
DONALD PRICE, in their official capacities as individual
members of said Commission; THE COUNTY OF EAGLE,
STATE OF COLORADO; HOLY CROSS WILDERNESS
DEFENSE FUND; and VAIL VALLEY CONSOLIDATED
WATER DISTRICT.
Defendants-Appellees-Cross-Appellants.
245a
ANDERSON, JOHNSON &
GIANUNZIO, P.C.
Mark T. Pifher, #12629
Jonathan C. Dehmlow, #23454
Stephen J. Lebel, #8367
104 S. Cascade Ave., Suite 204
Colo. Spgs., CO 80903
(719) 632-3545
ATTORNEYS FOR PLAINTIFFS-
APPELLANTS/CROSS-APPELLEES,
CITY OF COLORADO SPRINGS AND
CITY OF AURORA
+ * +
B. THE COUNTY REGULATIONS WERE PRE-
EMPTED UNDER STATE AND FEDERAL
LAW.
1. The County Land Use Controls Were Pre-
Empted Under Federal Law.
The District Court, relying upon the decisions in
Brubaker v. Board of County Comm'rs, El Paso County, 652
P.2d 1050 (Colo. 1982) and California Coastal Comm'n v.
Granite Rock Co., 480 U.S. 572 (1987), correctly concluded
that the County could not impose land use regulations
upon this project, which is located entirely on federal
lands.!? In arguing to the contrary, defendants once again
misconstrue both the operative facts and the law.
12 Though Defendants attempt to characterize many of the
local regulations as “environmental” in nature, they are in fact
land use determinations. The “quality and quantity of the river
rafting experience” is a land use decision, i.e., will the County
have water diversions or aquatic playgrounds. Similarly, regu-
lation of the area as a “wilderness” is a land use choice. Though
246a
Typical of the Fund’s outright misrepresentation of
the facts is its assertion on page 15 of its Brief that the
federal permits obtained by the Cities indicated that a
local 1041 permit was required. The permit actually pro-
vides:
Eagle County and other Counties advise the
Forest Service that various permits are needed.
These permits would include:
(2) Permits pursuant to Eagle County’s or
other Counties H.B.-1041 process.
Hence, the Forest Service merely acknowledged that it
had been “advised” by the County that, in the opinion of
the County, a 1041 permit was necessary. This certainly
falls far short of a federal requirement that such a local
permit be obtained.
Defendants also conveniently choose to ignore certain
significant facts. As previously indicated, the City’s pro-
ject is to be located entirely upon federal Forest Service
lands. The Forest Service Management Plan (Record Vol-
ume I, Exhibit A-11) specifically states that the White
River Nat.onal Forest is for multiple use. This is consistent
water quality can be characterized as an environmental concern,
water rights are an individual property interest in Colorado,
and protection thereof from alleged degradation is thus more
akin to land use control. Further, the “nuisance factors” refer-
enced in the Board’s findings have been historically charac-
terized as matters within the ambit of the local “zoning”
authority. See Robinson Brick Co. v. Luthi, 115 Colo. 106, 111, 169
P.2d 171 (1946); C&M Sand and Gravel v. Board of County Comm’rs,
673 P.2d 1013, 1017 (Colo. App. 1983). See also Finding III(A)(1),
(B)(1), Addendum 14 at p. 169, 170.
a ee re
aah oe
247a
with the language of the Federal Land Policy Manage-
ment Act (“FLPMA”), 43 U.S.C. §1701, 1732 (1986), the
National Forest Management Act, 16 U.S.C. §1600 (1985),
et seq., the Organic Act of 1897, 16 U.S.C. §481 (1985), and
the Multiple Use Sustained Yield Act, 16 U.S.C. §528
(1985), et seg. Included within the uses encouraged by
each of these Acts is water resource development. For
example, the Organic Act specifically provides:
All waters within the boundaries of national
forests may be used for domestic, mining, mill-
ing, or irrigation purposes, under the laws of
the state wherein such national forests are situ-
ated or under the laws of the United States and
the rules and regulations established there-
under.
16 U.S.C. §481.13
Further, pursuant to federal requirements under the
National Environmental Policy Act (“NEPA”), 42 U.S.C.
§4321 (1977 and 1993 Supp.), et seq., the Forest Service
performed an environmental analysis which lead to a
number of public hearings, the submission of numerous
written comments, and the eventual issuance of a final
environmental impact statement (FEIS). (Record Volume
13 As noted in United States v. City and County of Denver, 656
P.2d 1, 23 (Colo. 1982):
The Supreme Court in United States v. New Mexico,
supra, emphasized that Congress intended to provide
large quantities of water for the economic develop-
ment of the West when it passed the Organic Act of
1897.
See also U.S. v. Jesse, 744 P.2d 491, 502 (Colo. 1987) (Organic Act
provides for and contemplates the diversion of water by private
parties within the national forests in accordance with state law).
248a
I, Exhibit A-1.) Eagle County and the other defendants
took an active role in this environmental review process,
Addendum 35, pp. 393-395; Record Volume I, Exhibit
A-1), and had numerous opportunities to place their con-
cerns of record in order to have them addressed by the
federal agencies. 4
Defendants also ignore the fact that the Cities
obtained a FLPMA permit (Addendum 11) which sets
forth numerous mitigation measures designed to ensure
that the project was constructed and operated in an envi-
ronmentally sound fashion. In addition, the Cities
applied for and received a §404 permit (33 U.S.C. §1344
(1986)) from the Corps of Engineers. Addendum 12. This
permit embodied conditions addressing various environ-
mental issues including aesthetics, water quality, and
wetlands preservation. Supplementing the “no loss” of
wetlands provision, was a requirement that any mitiga-
tion utilized in conjunction with the wetlands mitigation
plan “shall not cause more than minimal visual intrusion
to the wilderness area, and shall not have significant
environmental impacts.” Addendum 12, p. 127. The
14 The County did note an indication of “deficiencies in the
Environmental Impact Statement,” (Addendum 14, p.168), with-
out tying this finding to any local criteria. If the County was
dissatisfied with the EIS process, it could have sought review
thereof. It failed to do so. Further, to the extent the County and
the remaining defendants claim that the federal agencies used
different standards than applied by the County, the only appli-
cable county criteria references “no significant deterioration of
wetlands.” To argue that the Forest Service and Corps of Engi-
neers did not address this basic issue under their extensive
federal regulatory requirements is patently ridiculous. See, e.g.,
33 C.F.R. Part 320, 40 C.F.R. Part 230.
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249a
Corps specifically found the permitted alternative to be
consistent with §§101, 401 and 404 of the Clean Water
Act, NEPA, the Endangered Species Act, the Fish and
Wildlife Coordination Act, policies concerning scenic and
recreational values, and policies concerning energy con-
servation. Addendum 12, pp. 133-134.
Nevertheless, despite the above approvals and the
numerous protective conditions contained therein,
despite defendants’ participation in the federal process,
and despite the location of the project on federal lands,
the requested local land use permits were denied.'° With
the above factual background in mind, a closer analysis
of the decisions in Brubaker and Granite Rock, supra, is
required.
(a) The district court correctly relied upon
the Brubaker decision.
In Brubaker, plaintiffs sought from the County Board
a special use permit for purposes of conducting certain
mining operations which had previously received federal
approval. The County denied the application. The Colo-
rado Supreme Court held that such a denial was pre-
15 Regulations adopted under C.R.S. §24-65.1-101, et seq.
(1990), have been characterized by the legislature as “land use
planning” tools and codified as part of the land use planning
statutes. See C.R.S. §24-65.1-101(1)(c) (1990). In City and County
of Denver v. Bergland, 517 F.Supp. 155, 174, n. 18 (D. Colo. 1981),
even the County seemingly admitted that its 1041 regulations
fell within the category of “police power regulations involving
land use, construction permits and zoning,” i.e., land use regu-
lation.
250a
empted by federal law, as it stood as an “obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.” Brubaker, 652 P.2d at 1055. Simply
stated, “[S]uch a veto power is not consistent with the
Supremacy Clause.” (Emphasis added.) Id. at 1056. In so
holding, the Brubaker court cited with approval the deci-
sion of the Ninth Circuit in Ventura County v. Gulf Oil
Corp., 601 F.2d 1080 (9th Cir. 1979) aff’d mem 445 U.S. 947
(1980), wherein Gulf sought to secure from the County an
open space permit prior to undertaking its mineral explo-
ration activities on federal lands within the County. Id. at
1056. In holding that the governing federal legislation
pre-empted such County regulation due to an impermis-
sible conflict between the two bodies of law, the Ninth
Circuit observed:
Despite this extensive federal scheme reflecting
concern for the local environment as well as
development of the nation’s resources, Ventura
demands a right of final approval. Ventura seeks
to prohibit further activity by Gulf until it
secures an Open Space Use Permit which may
be issued on whatever conditions Ventura deter-
mines appropriate, or which may never be
issued at all. The federal Government has autho-
rized a specific use of federal lands, and Ventura
cannot prohibit that use, either temporarily or
permanently, in an attempt to substitute its
judgment for that of Congress.
Ventura County, 601 F.2d at 1084. See also: Federal Power
Comm'n v. Oregon, 349 U.S. 435 (1955).16
16 The Ventura court further noted:
As Ventura recognized in filing its second amended
complaint, the National Environmental Protection
25la
Similarly, in the present instance, the County seeks to
prohibit the federally authorized activity. Just as the test
drilling in Brubaker was essential to establishing the min-
ing claims in question therein, so too is the Cities’ con-
struction of its diversion facilities essential to the exercise
of its federal easement rights and its decreed water
rights.
Finally, the County simply misstates the facts in Bru-
baker when it alleges that “El Paso County attempted to
categorically prohibit any drilling activity on federal
land.” Co. Br. at p. 27.
The appellants then applied to the Board for a
special use permit authorizing drilling of the
proposed test holes in El Paso County. El Paso
County considered the permit necessary
because the appellant’s mining claims in the
County are located within an A-2 Agricultural
zoning district, and “mineral and natural
resources extraction” is a permitted use only: if
such a permit is obtained. (Emphasis added.)
Brubaker, 652 P.2d at 1053. In further explanation of its
decision, the Brubaker court subsequently stated:
BAAS SIT ERI PANS RUG ION IS Blas we sa ot ay aes BIS ate een
In the present case, we are not presented with a
challenge to the facial validity of the El Paso
Act (“NEPA”) and the guidelines, regulations and
Executive Orders issued in pursuance of that Act,
mandate extensive federal consideration and federal-
local cooperation concerning the local, environmental
impact of federal action under the Mineral Lands
Leasing Act. If federal officials fail to comply with
these requirements, Ventura has a remedy against
those officials.
Id. at 1086.
Stee I OPE ey ee ee ON Ty cre ee
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252a
zoning ordinances or with the question of
whether the appellants could be required to
apply for a permit under those ordinances.
Rather, we are faced with the issue reserved by
the Court in State ex rel Andrus v. Click, supra.
That is, we consider a specific application of the
local regulations so as to prohibit activities autho-
rized by federal legislation. (Emphasis added.)
Id. at 1059.17 Thus, there was no “blanket” prohibition in
Brubaker, but rather a fact specific prohibition evidenced
by a permit denial.
(b) Granite Rock Supports a Finding of Pre-
Emption.
The United States Supreme Court decision in Califor-
nia Coastal Commission v. Granite Rock, 480 U.S. 572 (1987)
is consistent with the above observations, and defen-
dants’ reliance thereon is misplaced. Although the
sharply divided court ruled that reasonable state environ-
mental regulations covering Forest Service land were not
per se pre-empted by federal law, the five-to-four major-
ity described this holding as a “narrow” rejection of a
“purely facial challenge.” Id. at 580, 593. Granite Rock
had not even applied for a state permit, arguing that
there was no possible set of conditions that the state
could place on its permit which would not conflict with
federal law. It therefore had “ . . . lost the possibility of
17 The issue reserved in Andrus v. Click, 97 Id 791, 554 P.2d
969 (1976), as described by the Brubaker court, involved “ . . . the
question of whether the state could deny such a permit” for
activities on federal land. Id. at 1059.
PAIL EE SIAR TAN SRS NDI ANEE SAR FEY. G5
vas
253a
making this argument [prohibition] in this litigation.” Id.
at 588.1 The Court stressed that the state was not asking
Granite Rock to comply with a local land use plan or
zoning ordinance, but rather with the regulations of a
state commission concerned over “compliance with the
environmental criteria in the Coastal Act itself.” (Emphasis
added.) Id. at 585, n. 2.
Further, the Granite Rock Court accepted the state’s
assertion that it did not seek to prohibit the activity, but
only to regulate the environmental aspects thereof. Id. at
587. However, since Granite Rock had not applied for the
state permit, it was unable to show the conditions which
the state would have placed upon its permit. Given the
“as yet unidentifiable conflicts with the federal scheme”
and the “barren record,” the court cautiously accepted
the possibility that the state might impose reasonable envi-
ronmental controls. (Emphasis added.) Id. at 594.19
18 Significantly, the majority decision assumed without
deciding, an assumption deemed “correct” in the dissent by
Justices White and Scalia and consistent with the decision in
Ventura County, that “the combination of the NFMA and the
FLPMA pre-empt the extension of state land use plans .. . in
national forest lands.” Granite Rock, 480 U.S. at 585, 612.
19 Even environmental concerns, assuming they can be
addressed by the local entity, cannot be of a general or generic
character or they will run afoul of the pre-emption doctrine. As
stated in Ogden Environmental Services v. City of San Diego, 687
F.Supp. 1436, 1448 (S.D. Ca. 1988):
Allowing the local governments to impose a permit
requirement and then to deny the permit on
unspecified environmental grounds, without articu-
lating specific health or safety concerns or setting
forth particular environmental requirements which
the facility must meet, surely frustrates congressional
254a
Nevertheless, the Court cautioned that there could be
“state environmental regulation so severe that a particu-
lar land use would become commercially impractica-
ble.”29 Id. at 587.
The facts of the present case are distinguishable from
those found in Granite Rock, and are on point with those
in Brubaker. The County does seek to prohibit the activity
in question. Unlike Granite Rock, the Cities applied for a
local permit and are not making a facial challenge. There
is now a record demonstrating the reasons for rejection
by the local authority, i.e., a record establishing an irrec-
oncilable conflict. Further, this court is now faced with a
situation wherein a local entity is attempting to enforce
what has been determined by the Tenth Circuit to be local
regulations. City and County of Denver v. Bergland, 695 F.2d
465, 485 (10th Cir. 1982).21 Thus, the state regulatory
intent behind the whole research, development, and
demonstration program.
Just such an inadequate articulation is in evidence in this case.
See also Ogden Environmental Services v. City of San Diego, 692
F.Supp. 1222 (S.D. Ca. 1988).
20 To the extent the County and the Fund now argue that
the federal mitigation plan was inadequate, despite its opera-
tional flow release option, there is, in the minds of these defen-
dants, no reasonable environmental regulation available for this
project configuration. That is to say, any regulation would be so
severe as to amount to a prohibition, the very exception to
allowable environmental regulation noted in Granite Rock, 480
U.S. at 587.
21 In reaching its conclusion that H.B. 1041 requirements were
“local” in nature, the Tenth Circuit cited with approval the Ninth
Circuit decision in Columbia Basin Land Protection Association v. Schle-
singer, 643 F.2d 585 (9th Cir. 1981), wherein the Court found that
nN ———
255a
scheme required by Granite Rock is absent. Granite Rock,
480 U.S. at 583. Finally, even if the regulations in question
were being imposed by the state, they would not pass the
“reasonableness” test enunciated in Granite Rock. The
identification of any shift in wetland species composition ~
as an unacceptable “significant deterioration” was clearly
unreasonable, as were any findings of nuisance or
adverse impacts on aquatic life. See pp. 39-40, infra.?2
The situation in the present case is the very result
feared by the dissenting opinion in Granite Rock, i.e.,
“duplicative” processes wherein a local regulator has
given itself final authority to determine how federal
lands are to be used. Id. at 605. Indeed, Justice Scalia ends
his opinion with the following observation:
If environmental control is, as California now
assures us, its limited objective in this case, then
it must simply achieve that objective by means other
than a land use control scheme. If and when it does
sO, we may have occasion to decide (as we need
not today) whether state environmental controls
are also pre-empted. More likely, however, the
question will not arise in the future, as it has not
arisen in the past, because the federal govern-
ment’s voluntary accommodation of state environ-
mental concerns — an accommodation that could not
occur here only because California neglected to par-
ticipate in the proceedings. (Emphasis added.)
“state” standards do not include “local” requirements. See also Citi-
zens for a Better Henderson v. Hodel, 768 F.2d 1051, 1055 (9th Cir. 1985).
22 It should also be noted that in Granite Rock the regulating
authority had not participated in the federal permit process.
256a
Id. at 614. Despite the fact that the above-referenced
“accommodation” occurred in this instance through the
federal permitting processes, the County persists in its
attempt to impose its own controls through its local land
use plan. That attempt cannot be sustained.
* * +
E. THE CITIES HAVE STANDING TO ASSERT
DUE PROCESS RIGHTS.
The Cities were required to apply to the County for
permits in the same manner as any property owner
because the Cities are expressly defined as “persons”
within the meaning of the enabling legislation. C.R.S.
§§24-65.1-102(6) and 24-65.1-501(1)(a) (1990). Grand
County, 782 P.2d at 764. As such “persons,” the Cities
are entitled to the same legislative assurance that their
23 The County also misstates the holding of the Court in
Friends of the Earth v. U.S. Navy, 841 F.2d 927, 936 (9th Cir. 1988),
when it argues that “the Court rejected the Navy’s argument,
finding that the state act’s combination of land use and environ-
mental regulations did not mandate any particular use of the
land . . . and was therefore not pre-empted.” Co. Br. at 29.
Rather, the court rejected application of that portion of the regu-
lation dealing with land use, finding that it indeed was pre-
empted and merely allowed the application of “environmental
regulations.” Id. at 936.
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257a
property rights will be protected. C.R.S.
§24-65.1-106(1)(a) (1990) provides “[nJothing in this arti-
cle shall be construed as . . . diminishing the rights of
owners of property as provided by the state Constitution
or the Constitution of the United States.” The constitu-
tional rights of owners include the rights to just compen-
sation when land use regulations are used to accomplish
a “taking” of property. Keysione Bituminous Coal Associa-
tion v. DeBenedictis 94 L.Ed.2d 472, 107 S.Ct. 1232 (1987).
Nevertheless, the County now comes full circle and
argues that the Cities are not entitled to their Fifth or
Fourteenth Amendment rights because they are not “per-
sons.”
The Defendants again rely upon a line of cases which
are designed to keep the courts out of intermural dis-
putes between political subdivisions of the same state.
Most of the cases cited by Defendants in support of the
“per se” rule involve some sort of taxation issue; all of the
cases involve disputes over the state allocation of politi-
cal power. However, the instant case does not involve an
internal dispute. It concerns, instead, the regulatory tak-
ing of the property interests of these statutory “persons”.
Defendants ignore blackletter law cited at pages 28
and 29 of the Cities’ Opening Brief concerning a munici-
pality’s right to just compensation, claiming that said
6° The gravamen of the Cities’ Sixth and Twelfth Causes of
Action is that the Cities, as owners of decreed water rights, have
been deprived of those rights by a regulatory taking. The water
rights in question were not allocated to the Cities by the State.
Rather, these property rights were purchased by the Plaintiffs as
home rule cities.
258a
authority applies only to “formal condemnation cases.”
However, if municipalities are absolutely barred from
asserting substantive due process or regulatory taking
claims as the Defendants contend, there would be no
reason for any state to institute such “formal condemna-
tion” proceedings. The state could simply create regula-
tions which accomplish the same goal. The Supreme
Court has held that even
Congress could not, without making provision
for payment of compensation, pass a law
depriving a State of land vested in it by the
Constitution. Such a law . . . would constitute a
taking of the State’s property without just com-
pensation, in violation of the Fifth Amendment.
Block v. North Dakota, 461 U.S. 273, 291, 856 (1983).
The absurdity of the “per se” rule has gradually lead
to the more rational line of cases cited at pp. 21-23 of
Plaintiffs’ Brief. The Defendants have attempted to mis-
characterize these decisions, but the referenced opinions
continue to be offered as authority that “judicial support
for this [per se] rule may be waning with time.” Amato v.
Wilents, 952 F.2d 742, 754-755 (3rd Cir. 1991).
Defendants fall back on City of Trenton v. New Jersey,
262 U.S. 182 (1923), claiming that the facts of Trenton are
“very similar” to the instant case. Co. Br. at 41, n. 15.
However, Trenton—involved disputed taxation issues
rather than a regulatory taking. Moreover, Trenton is
based upon a “creature of the state” rationale. As a result,
it did not apply when another New Jersey municipality
was allowed to use the Fourteenth Amendment to chal-
lenge the zoning of an adjoining New York municipality.
EEE EE
259a
Town of River Vale v. Town of Orangetown, 403 F.2d 684 (2nd
Cir. 1968).
The Colorado Supreme Court cited the River Vale case
in Board of County Comm'rs v. City of Thornton, 629 P.2d
605, 611 (1981), where the Court held that Thornton, as a
home rule city and as the owner of property adjacent to
the zoned property, had standing to challenge an Adams
County zoning plan. The Court specifically held that “we
find no reason in policy to deny the landowner City the
same right to challenge illegal zoning as we have
accorded private landowners.” Id. at 610, citing River Vale
in recognition of “a due process dimension.” Id. at 611.
Further, the Supreme Court has cautioned that the
line of cases relied upon by Defendants are limited to
their facts. Gomillion v. Lightfoot, 364 U.S. 339, 343 (1960).
The Court warned that a “correct reading of the seem-
ingly unconfined dicta” of these cases does not allow the
state “plenary power to manipulate in every conceivable
way, for every conceivable purpose, the affairs of its
municipal corporations” and that “a state legislature may
not be omnipotent even as to the disposition of some
types of property owned by municipal corporations.” Id.
at 343 and 344.
Defendants also place a great deal of reliance upon a
footnote to Orchard City v. Delta County Comm'rs, 751 P.2d
1003, 1006 (Colo. 1988), another taxation case. Orchard
City, however, serves to illustrate the need to focus the
standing question upon the circumstances of the case,
rather than resorting to the rubric of a “per se” rule. First,
Orchard City addressed the distribution of tax revenues
260a
rather than a City’s right to protect its purchased prop-
erty rights. Second, Orchard City is not identified as a
home rule municipality. Contra: Board of County Comm’rs
v. City of Thornton, supra. Finally, since it was not neces-
sary for the court to address the equal protection argu-
ment, this footnote is clearly dicta.
The Cities are not asking the court to apply a
mechanical standing argument, but rather seek the same
standing as any property owner, consistent with their.
statutory designation as “persons.” The County cannot
deprive these statutory persons of their property rights
by irrelevant criticism of the proprietary /governmental
distinction. The County’s reliance on the sweeping state-
ments in Trenton clearly go beyond the scope of the
taxation issues in that case. See Gomillion, supra.
The County also vainly argues that the Cities are not
“persons” under 42 U.S.C. §1983, ignoring the more
recent decision in Santiago Collazo v. Franqui Acosta, 721
F.Supp. 385 (D. Puerto Rico 1989) and relying upon City of
Safety Harbor v. Birchfield, 529 F.2d 1251 (5th Cir. 1976).
However, as the Santiago court explains, Safety Harbor
relied upon Monroe v. Pape, 365 U.S. 167, (1961), which
was overruled in Monell v. Department of Social Services,
66 Defendants attempt to avoid standing for home rule cities by
citing Village of Arlington Heights v. Regional Transportation Auth., 653
F.2d 1149 (7th Cir. 1981). However, home rule municipalities estab-
lished under the Colorado Constitution stand on a different footing.
They have standing even in cases involving taxation issues. Denver
Urban Renewal Auth. v. Byrne, 618 P.2d 1374 (Colo. 1980). The state
Supreme Court recently reiterated this home rule distinction. Mesa
Verde Co. v. Montazuma County, 831 P.2d 482, 485 (Colo. 1992).
261la
436 U.S. 658, 690 (1978). Monroe had held that munici-
palities were not “persons” liable under §1983. However,
once Monroe was overruled, it became a strained analysis
to hold that a municipal corporation was a “person”
within one clause of §1983 (1981 and 1993 Supp.), but not
a “person” within another clause of the same statute.
South Macomb Disposal Auth. v. Township of Washington,
790 F.2d 500, 503 (6th Cir. 1986).
It is just as strained an analysis for the trial court to
hold that the Cities are defined as “persons” by the
statute (and therefore are not entitled to the exemptions
ordinarily provided to home rule municipalities), while
simultaneously depriving the Cities of the rights which
they would clearly enjoy as “persons”, if they were
treated as private property owners rather than munici-
palities. Since the enabling legislation describes the Cities
as “persons” and requires the Cities to apply for a permit,
the Cities must be afforded the same rights expressly
granted to all property owners affected by this statute.
C.R.S. §24-65.1-501(1)(a) (1990).
+ * *
262a
COLORADO COURT OF APPEALS
No. 93CA0386
No. 93CA0412
PETITION FOR REHEARING
OF PLAINTIFFS-APPELLANTS
City of Colorado Springs and City of Aurora, Colorado,
municipal corporations,
Plaintiffs-Appellants and Cross-Appellees,
Vv.
The Board of County Commissioners of the County of
Eagle, State of Colorado; George A. Gates, Johnette Phil-
lips, James E. Johnson, Jr., in their official capacities as
individual members of said Board; The Board of County
Commissioners of the County of Eagle, in its capacity as
the permitting authority under §24-65-101 et seq., C.R.S.;
The Eagle County Planning Commission; Mark Donald-
son, Robert Tether, Arlene Quenon, Robert Morris,
Donald Price, in their official capacities as individual
members of said commission; The County of Eagle, State
of Colorado; Holy Cross Wilderness Defense Fund; and
Vail Valley Consolidated Water District,
Defendants-Appellees and Cross-Appellants.
263a
Appeal from the District Court of Eagle County
Honorable William L. Jones, Judge
No. 88CV142
Division III JUDGMENT AFFIRMED
Opinion by JUDGE DAVIDSON _IN PART, REVERSED
IN PART, AND CAUSE
Jones, and Rothenberg,
JJ., concur REMANDED WITH DIRECTIONS
Anderson, Gianunzio, Dude, Pifher & Lebel, P.C., Mark T.
Pifher, William Kelly Dude, Colorado Springs, Colorado,
for Plaintiffs-Appellants and Cross-Appellees
James R. Fritz, County Attorney, Eagle, Colorado; Holme
Roberts & Owen, L.L.C., Dennis J. Herman, Henry W.
Ipsen, Mary H. Stuart, Denver, Colorado for Defendants-
Appellees and Cross-Appellants The Board of County
Commissioners of the County of Eagle, State of Colorado;
George A. Gates, Johnette Phillips, James E. Johnson, Jr.;
The Board of County Commissioners of the County of
Eagle, State of Colorado; The Eagle County Planning
Commission; Mark Donaldson, Robert Tether, Arlene
Quenon, Robert Morris, Donald Price; The County of
Eagle, State of Colorado
Sierra Club Legal Defense Fund, Lori J. Potter, Denver,
Colorado; Land and Water Fund of the Rockies, Frances
M. Green, Boulder, Colorado.
* * *
3. The Court’s decision not to address the preemp-
tion cases (page 7) is inappropriate even under the
Court’s strained interpretation of state law. Even assum-
ing that the permit could be denied to a home rule
municipality under the terms of the state statute, the
preemption case law as cited in the briefs indicates that
though local entities may “regulate” environmental
264a
impacts, this is not a basis upon which to veto or deny
permits for federally approved projects located entirely
on federal lands. See Pl. Opening Br. at P. 10, Answer Br.
at pp. 14-20, 36; See e.g. Brubaker v. Board of County
Commissioners, 652 P.2d 1050, 1059 (Colo. 1982) citing
Andrus v Click, 97 Id. 791, 554 P.2d 969 (1976) (permit
denial constitutes prohibition of federally authorized
activity). Finally, the cities have asserted that the “nui-
sance” regulations are “land use” concerns and thus pre-
empted.
+ * *
17. With reference to the standing/due process
claims (pp. 28-32), the Court overlooks the fact that con-
stitutionally created home rule powers control over
enactments of the General Assembly even in matters of
statewide concern. See e.g. Denver v. Grand County, 782
P.2d at 762; City of Thornton, 194 Colo. at 535. Further, the
Court erroneously concludes that home rule munici-
palities are “creatures of the state.” The Supreme Court
has stated that “as a home rule city with its own constitu-
tional underpinning, Denver was not a political subdivi-
sion of the state. ... ” Mesa Verde County v. Montezuma
County, 831 P.2d 482, 485 (Colo. 1992). See also Pl. Open-
ing Br. at p. 25. The Court ignores black letter law that
municipalities are entitled to just compensation in such
circumstances. See Pl. Opening Br. at pp. 28-29 citing
Nichols on Eminent Domain and ALR.3d; See also 91
L.Ed.2d 582; Metagorda County v. Russell Law, 19 F.3d 215,
223 (5th Cir. 1994) (though the takings clause is couched
in terms of “private property,” it is recognized that the
clause also applies to “independently held and controlled
property of a state or of a local subdivision.”) The Cities
OO
265a
purchased these water rights in the free market, and they
cannot subsequently be taken without compensation. See
Worcester v. Worcester Consol. Street R. Co., 196 US. 539,
551 (1905). Finally, the Cities did not argue that the dicta
in Town of Orchard City was “eroded” by a case decided
seven years before (page 31), only that the City of Mon-
trose decision indicated state Supreme Court acceptance
of municipal use of the Fourteenth Amendment outside
of the “taxation” context.
7 * .
266a
SUPREME COURT, STATE OF COLORADO
CASE NO. 94 SC 765
COLORADO COURT OF APPEALS, CASE NOS.
93CA0386, 93CA0412 EAGLE COUNTY DISTRICT
COURT, CASE NO. 88CV142
PETITION FOR WRIT OF CERTIORARI
City of Colorado Springs and City of Aurora, Colorado,
municipal corporations,
Petitioners,
V.
The Board of County Commissioners of the County of
Eagle, State of Colorado; George A. Gates, Johnette Phil-
lips, James E. Johnson, Jr., in their official capacities as
individual members of said Board; The Board of County
Commissioners of the County of Eagle, in its capacity as
the permitting authority under §24-65101 et seq., C.R.S.;
The Eagle County Planning Commission; Mark Donald-
son, Robert Tether, Arlene Quenon, Robert Morris,
Donald Price, in their official capacities as individual
members of said commission; The County of Eagle, State
of Colorado; Holy Cross Wilderness Defense Fund; and
Vail Valley Consolidated Water District,
Respondents.
ANDERSON, GIANUNZIO,
DUDE, PIFHER & LEBEL, P.C.
Mark T. Pifher
104 South Cascade Avenue
Suite 204
Colorado Springs, CO 80903
(719) 632-3545
Attorneys for Petitioners
cava ee eee ae
267a
ISSUES PRESENTED FOR REVIEW
1. Did the Court of Appeals err in allowing a
county, under the Colorado Land Use Act, § 24-65.1-101 et
seq. 10B C.R.S. (1988 & Supp. 1994) (H.B. 1041), to veto a
municipal water project located on federal lands?
* + *
3. Did the Court of Appeals err in ruling that Colo-
rado home rule municipalities do not have standing to
pursue a claim for the regulatory taking of property
without just compensation?
* * *
Finally, even assuming that the actions of the county
did not run afoul of Article XX, Section 1, the doctrine of
federal preemption does not allow the county to veto a
permit of a federally approved project located entirely on
federal lands. See Brubaker v. Board of County Comm'rs, 652
P.2d 1050, 1059 (Colo. 1982), citing Andrus v. Click, 97
Colo. 791, 554 P.2d 969 (1976); California Coastal Comm'n v.
Granite Rock Co., 480 U.S. 572 (1987). The Court of
Appeals refused to even reach this
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