Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cv-02361-WDM-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO JUDGE WALKER D. MILLER
CIVIL ACTION NO . 00-CV -02361-WDM-BNB (Consolidated with Nos. 00-cv-02362-WDM-BNB and 00-cv-02363-WDM-BNB; and 00-cv-02365-WDM-BNB, 00-cv-02366-WDM-BNB, 00-cv-02367WDM-BNB, 00-cv-02368-WDM-BNB, 00-cv-02369-WDM-BNB, 00-cv-02370-WDM-BNB, 00-cv-02371-WDM-BNB, 00-cv-02372-WDM-BNB, 00-cv-02373-WDM-BNB, 00-cv-02374WDM-BNB; and, 00-cv-02364-MJW-BNB and 00-cv-02394-MJW-BNB)

WYRICK G. DEANE, Plaintiff, v. MILTON TUCKER, et al., Defendants. _____________________________________________________________________________ OPPOSITION TO PITKIN COUNTY'S MOTION REQUESTING EVIDENTIARY HEARING _____________________________________________________________________________ Plaintiff Wyrick G. Deane ("Deane") and defendants United States of America, Secretary of Agriculture, and the United States Forest Service (the "United States") jointly submit this opposition to Pitkin County's April 30, 2007 motion for an evidentiary hearing. (Doc. 48.) As grounds, Deane and the United States state that an evidentiary hearing is neither required nor justified by the facts. 1. The single issue before the Court is set forth in the February 8, 2007, Order and

Notice pursuant to which Pitkin County was advised: You may, pursuant to § 30-28-101(10)(c)(II), C.R.S., join as a party in these proceedings for the sole purpose of raising the issue of whether the proposed global settlement of the parties and the real property transfers described therein would constitute an unlawful evasion of Part 1 of Article 28, Title 30, Colorado Revised Statutes. If you do not file an appropriate pleading within twenty days

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after receipt hereof, then the court will issue its order granting the parties' joint motion for issuance of an order approving the proposed global settlement, and such order shall have the final and preclusive force and effect provided for by §30-28-101(10)(c)(II), C.R.S. (Docs. 32 and Attachment 3 to Doc. 35.) Pitkin County's limited participation herein with respect to the above issue was authorized following the request of the United States and Deane. Joint Motion to Issue Notice to Pitkin County Pursuant to Colo.Rev.Stat. 30-28-101(10)(c)(II) and for Entry of Order Approving Proposed Global Settlement. (Doc. 30 and Attachments 1-10.) 2. As to the single issue before the Court, the record is complete. The Court has

been provided with the parties' legal arguments and authorities, and also with the relevant and unrebutted evidence: a. The complete proposed global settlement. The United States and Deane

have produced a complete copy of the proposed global settlement setting forth all of the terms agreed to by the settling parties and enforceable upon this Court's approval. Joint Motion to Issue Notice to Pitkin County Pursuant to Colo.Rev.Stat. 30-28-101(10)(c)(II) and for Entry of Order Approving Proposed Global Settlement (Doc. 30 and Attachments 1-10); Certificate of Mailing and Service (Doc. 35 and Attachments 1-3); Consolidated Opening Brief, Exhibits A through K. (Doc. 42, Attachments 1-11). The settlement provides that Parcel A is not subject to development with the inclusion of restrictive covenants providing, e.g., that "... the size of the existing [Ophir] cabin on Parcel A shall not be increased from the current cabin size unless repaired or remodeled, in which event the total cabin size shall be limited to no more than 500 square feet ...." (Ex. F to Doc. 42, Attachment 8.)

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b.

The sworn Declaration of Maribeth Gustafson. The United States and

Deane have produced the sworn Declaration of Maribeth Gustafson who is the U.S. Forest Supervisor for the White River National Forest. Ms. Gustafson's Declaration fully sets forth the substantial and lawful reasons in support of approval of the proposed global settlement and the carve-out and conveyance of the 2.26 surface-acre Parcel A to Deane as consideration of his relinquishment of title in over 300 acres of forest land. Although Pitkin County contends that it has already adequately protected the forest lands at issue, Ms Gustafson's sworn evidence expressing the benefits to and interests of the United States is unchallenged. Consolidated Opening Brief, Exhibit J. (Doc. 42, Attachment 1). c. The sworn Affidavit of Wyrick Deane. The United States and Deane

have produced the sworn Affidavit of Wyrick Deane who is the plaintiff in the above-referenced cases that are the subject of the proposed settlement. He is also the owner of 7 other properties included in the settlement that are not subject to any litigation, which are wilderness-area lands highly valued by the Forest Service. Deane has agreed to deed all of his interests in these 35 properties to the United States and, as consideration, will be deeded certain federal land, Parcel A. Consolidated Opening Brief, Exhibits I (Deane) and J (Gustafson). (Doc. 42, Attachments 1 and 11). Deane has testified, e.g.: that he is "not a real estate developer and he does not intend to subdivide or partition" Parcel A; that although he "does not believe that Colorado's subdivision laws or building codes apply," in negotiating the proposed settlement, "it was not and is not his intent to evade any law or regulation." (Doc. 42, Attachment 11, Ex. I at ¶9.) Further, he testified that he is "particularly partial" to Parcel A "for sentimental reasons and because it has an existing cabin and beautiful scenic views." (Doc. 42, Attachment 11, Ex. I at ¶7.) Important to Deane is that the settlement would place "over 300 acres of forest land within the protection of the U.S. Forest Service." (Doc. 42, Attachment 11, Ex. I at ¶8.) Deane's Affidavit is unrebutted. Consolidated Opening Brief, Exhibit I. (Doc. 42, Attachment 11).

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3.

As to the single issue now before the Court, the evidence is complete and

consistent.1 The evidence shows that the proposed settlement was entered into in good faith and that the proposed property transfers described therein were not undertaken to evade Part 1 of Article 28, Title 30, of the Colorado Revised Statutes. Indeed, the sole purpose and intent of the proposed property transfers­­particularly the creation and conveyance of Parcel A to Deane­­is to compromise and settle federal litigation. 4. The County points to no disparity in the relevant evidence, but rather to its

disagreement with the settling parties' interpretation of the law. As a result, the County's request to expand these narrow proceedings through discovery and a hearing should be rejected as without merit. 5. Moreover, the Court's and the parties' resources should not be so severely and

unnecessarily taxed. Plainly, the unjustified expansion of these proceedings as proposed by the County would necessarily warrant inquiries into the County Commissioners' decision making processes and their failure to exercise reasonable discretion here pursuant to Col.Rev.Stat. § 3028-101(10)(d): (d) The board of county commissioners may, pursuant to rules and regulations or resolution, exempt from this definition of the terms "subdivision" and "subdivided land" any division of land if the board of county commissioners determines that such division is not within the purposes of this part 1.

"The purpose of an evidentiary hearing is to resolve conflicting evidence." Anderson v. Attorney General of Kansas, 425 F.3d 853, 860 (10th Cir. 2005). See Tavorn v. Shockley, 2007 WL 1217950 at *1 (11th Cir. 2007) ( evidentiary hearing may be required when there is "a dispute about the material facts concerning the existence or terms of a settlement agreement."); Murchison v. Grand Cypress Hotel Corp., 13 F.3d 1483, 1486 (11th Cir. 1994) (same). 4

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(Emphasis supplied.) It is clear from the proposed settlement itself is that the creation of the 2.26-acre Parcel A is not within the purposes of Part 1 of Article 28, Title 30, of the Colorado Revised Statutes. 6. Finally, the County's Motion suggests another inappropriate motive--to examine

the United States in general with regard to occupancy-and-use issues concerning the White River National Forest.2 This, of course, is well beyond the scope of both these proceedings and the County's authority. 7. This Court has exclusive jurisdiction over the parties and the claims pursuant to

the Federal Quiet Title Act, 28 U.S.C. 2409a, Public Law No. 103-255 § 5(c), 108 Stat. 684 (1994) (the "Exchange Act"), and 28 U.S.C. §§ 1346(f), 1402(d). See Staley v. United States, 168 F. Supp.2d 1209, 1211 (D. Colo. 2001). This Court also has the inherent authority to approve a proposed settlement, particularly when requested to do so by the parties before the Court.3 The relevant evidence is not in conflict, and Pitkin County has had ample opportunity to make its case for "evasion" of the subdivision laws under Part 1 of Article 28, Title 30, of the Colorado Revised Statutes. The matter is now at issue.

United States v. Hymans, 463 F.2d 615, 617 (10th Cir.1972) ("The Secretary of Agriculture is empowered by 16 U.S.C. § 551 to make and promulgate rules and regulations concerning the `occupancy and use' of National Forests.") "A district court has inherent power `to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.'" Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (referring to power to stay proceedings as incident to such inherent powers). 5
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WHEREFORE, Pitkin County's Motion Requesting Evidentiary Hearing should be denied. Respectfully submitted this7th day of May, 2007. WELBORN SULLIVAN MECK & TOOLEY PC s/Kathryn Haight Kathryn Haight 821 17th Street, #500 Denver, CO 80202 Tel. 303-830-2500 Fax 303-832-2366 [email protected] for Plaintiffs TROY A. EID UNITED STATES ATTORNEY s/Roxane J. Perruso Roxane J. Perruso Assistant U.S. Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Tel. 303-454-0127 / Fax 303-454-0404 [email protected] for United States of America

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on May 7, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Kathryn Haight [email protected] John M. Ely, County Attorney [email protected] and Christopher G. Seldin, Pitkin County Attorney's Office [email protected] Pitkin County Attorney's Office 530 E. Main Street, Suite 302 Aspen, Colorado 81611 and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated above the nonparticipant's name: Via e-mail Helena Jones-Siddle, Esq. Office of the General Counsel USFS-USDA 740 Simms Street, Room 309 Golden, CO 80401 [email protected] s/Roxane J. Perruso Roxane J. Perruso

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