Free Reply to 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. _____________________________________________________________________________ CONSOLIDATED REPLY BRIEF _____________________________________________________________________________ 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 reply to Pitkin County's April 6, 2007 response brief. (Doc. 43.) SUMMARY OF THE ARGUMENT Pitkin County's attempt to thwart the proposed global settlement is both an exercise of power, which Pitkin County does not possess, and an effort to disregard principles of federal sovereignty over national forest lands. See Consolidated Opening Brief, Exhibits A through K. (Docs. 42, Attachments 1-11). Colorado's subdivision law is neither evaded nor implicated by the conveyance of 2.2 acres of White River National Forest EXCHANGE ACT land to Deane--Parcel A. Therefore, the settling parties' motion to approve the proposed global settlement should be granted. Doc. 30, Attachment 10 (proposed Order).

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ARGUMENT I. THE PARTIES' PROPOSED GLOBAL SETTLEMENT AND THE REAL PROPERTY TRANSFERS DESCRIBED THEREIN DO NOT CONSTITUTE AN UNLAWFUL EVASION OF PART 1, ART. 28, TITLE 30, OF THE COLORADO REVISED STATUTES. Pitkin County's stated objection to the proposed settlement only concerns that portion reflected in Exhibit F, the Stipulation and Cross-Conveyance of Interests, involving the 8.33-acre Ophir Lode Mining Claim, the 9.3-acre Diamond Lode Mining Claim, and the carve-out therefrom of the 2.2-acre Parcel A. (Doc. 42, Attachment 8.) The County admittedly conveyed the less-than-35-acre Ophir and Diamond parcels to the United States pursuant to the 1994 EXCHANGE ACT , Public Law No. 103-255 § 5(c), 108 Stat. 684 (1994).1 Nonetheless, the County contends that the United States' carve-out and conveyance of the less-than-35-acre Parcel A to Deane constitutes an unlawful evasion of Colorado's subdivision statute, Colo.Rev.Stat § 30-28101 (the "Statute"). The County's position is without merit because: (a) the Statute, on its face, does not apply to the United States; (b) it is preempted by federal law; (c) Pitkin County even recognizes that it cannot control or regulate the conveyance of federal property; and, (d) Deane's and the United States' request for judicial approval of the settlement is not an attempt to evade the subdivision statute.

Deane does not hereby waive his legal position that Pitkin County's legal "title" at the time of the conveyance to the United States was inferior to his own. Deane contends that his title in and to the subject EXCHANGE ACT properties was and is the superior title. 2

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A.

COLO .REV .STAT. § 30-28-101, ON ITS FACE, DOES NOT APPLY TO THE UNITED STATES .

Pitkin County's argument that the United States is attempting unlawfully to evade the provisions of Colo.Rev.Stat. § 30-28-101, which addresses county planning and subdivision regulation, fails because the Statute, by its own terms, does not apply to the United States or the present circumstances. When interpreting a statute, the Court must "first look to the language of the statute, giving the words and phrases their plain and ordinary meaning." Ceja v. Lemire, _____ P.3d ____, No. 06SC375, 2007 WL 88167, at *2 (Colo. March 21, 2007). First, under this Statute, the terms "subdivider" or "developer" mean " any person, firm, partnership, joint venture, association, or corporation participating as owner, promoter, developer, or sales agent in the planning, platting, development, promotion, sale, or lease of a subdivision." Col.Rev.Stat. § 30-28-101(9). Plainly, the United States is not, and does not satisfy the definition of either a "subdivider" or "developer." Second, under the Statute, the words "subdivision" or "subdivided land" include "any parcel of land in the state which is to be used for condominiums, apartments, or any other multiple-dwelling units . . . ." Col.Rev.Stat. § 30-28-101(10)(a). Neither the Ophir and Diamond Lode Mining Claims nor the carved-out Parcel A fall within these legislative descriptions of "subdivision" or "subdivided land." Third, the portions of the federal Ophir and Diamond Lode Mining Claims that remain after the carve-out of Parcel A are now, and will remain, part of the White River National Forest and will also remain undeveloped. To be sure, the National Forest will not be used for condominiums, apartments or any other multiple-dwelling units. Parcel A is also not subject to

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development. As a condition of its conveyance to Deane, the United States imposed deed restrictions, e.g., "... 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.) Thus, none of the subject properties are subject to multiple-owner or multiple-unit development. It is noteworthy that the original Parcel A restrictive covenant language was modified and now provides that the "restrictive covenants shall be deemed void and unenforceable if the [Ophir] cabin is subject to a final order requiring that it be modified or removed pursuant to the Pitkin County Land Use Code (including those provisions applicable to Rural and Remote locations), the Pitkin County Building Code, and/or Section 30-28-120, C.R.S. (2006)." Id. This language was added only after Pitkin County indicated that if the United States conveyed Parcel A to Deane, it would require him to raze the existing cabin. If Pitkin County would agree that Deane would not be required to modify or raze the existing Ophir cabin, the United States and Deane would agree to delete the italicized language from the deed, leaving the original restrictive covenants in place. By its terms and intent, the Statute does not apply to the United States, to the United States' carve-out of Parcel A from federally owned lands, or to the conveyance of Parcel A to Deane.2

The obvious purpose of Colo.Rev.Stat. § 30-28-101 is to regulate the development of subdivisions to be used for condominiums, apartments or other multiple-dwelling units. "There is no surer guide in the interpretation of a statute than its purpose. . . ." Federal Dep. Ins. Corp. v. Tremaine, 133 F.2d 827, 830 (2d Cir. 1943). 4

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B.

PITKIN COUNTY IS PREEMPTED BY FEDERAL LAW WITH REGARD TO THE EXCHANGE ACT LANDS AND THE CREATION OF PARCEL A

Pitkin County chooses to ignore the terms of the settlement as a whole and the fundamental right of the United States to release into private hands 2.2 acres as partial consideration in a lawful settlement approved by the Department of Justice, the Department of Agriculture and the U.S Forest Service. Pitkin County declares that the proposed carve-out of 2.2 acres of federal public lands resulting in Parcel A constitutes an impermissible division of land under Colorado's subdivision law regulating the development, occupancy and use of county lands. Even though the County does not dispute that the Ophir, the Diamond, and Parcel A are federal EXCHANGE ACT lands and that the creation of Parcel A is not for purposes of development or subdivision, the County proposes to thwart the settlement and effectively prevent the United States from conveying the 2.2-acre Parcel A to Deane because it is smaller than 35 acres.3 The County's position is specious and improperly interferes with the parties' good faith proposed global settlement. The County cannot exercise dominion over federal lands with respect to matters subject to federal law. Congress has expressly provided that the Secretary of Agriculture shall "regulate [the] occupancy and use" of national forests and to establish rules and regulations therefor. 16 U.S.C. § 551 (formerly the ORGANIC ADMINISTRATION ACT of 1897). See also the NATIONAL FOREST MANAGEMENT ACT OF 1976, 16 U.S.C. § 1600 et seq.; the FEDERAL LAND POLICY AND MANAGEMENT ACT OF 1976, 43 U.S.C. § 1701 et seq.; and, 16 U.S.C. § 521, et seq. These

See Colo.Rev.Stat. § 30-28-101(10)(c)(I), which exempts from the subdivision law single-owner parcels of 35 acres or more. 5

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provisions are illustrative of Congressional land use legislation, of Congress's exercise of sovereign jurisdiction, and of Congress's expression of federal land policies adopted in accord with the Property and Supremacy Clauses. Pitkin County's arguments regarding the specific provisions and certain requirements of 16 U.S.C. § 521, et seq., are irrelevant because the United States' authority for the settlement is not derived from that statute authorizing the Secretary of Interior to sell or exchange lands. The conveyances at issue are part of the negotiated settlement of litigation and are not part of a statutory sale or exchange of property subject to the technical parameters of that statute. The proposed settlement is the result of the proper exercise of the express power granted to the United States Department of Agriculture to manage federal lands and to the express power granted to the United States Department of Justice to settle litigation. The United States Department of Agriculture has the authority to "[p]rotect, manage, and administer the national forests . . . [t]his delegation covers the acquisition and disposition of lands and interest in lands as may be authorized for the protection, management, and administration of the National Forest System." 7 C.F.R. § 2.60(a)(2) and 7 C.F.R. § 2.20(a)(2)(ii); 16 U.S.C. § 551. The United States Department of Justice has the authority to "[a]ccept offers in compromise in all nonmonetary cases." 28 C.F.R. § 0.160, Part 0, Subpart Y (a)(3). It is therefore plain that "[s]tate jurisdiction over federal land `does not extend to any matter that is not consistent with full power in the United States to protect its lands, to control their use and to prescribe in what manner others may acquire rights in them.'" Wyoming v. United States, 279 F.3d 1214, 1227 (10th Cir. 2002) (emphasis added.)

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Although the County equivocally posits that state and local regulation regarding occupancy and use applies to any division of federal lands, nowhere in Pitkin County's brief is there an explanation of how Colorado's subdivision laws may be properly imposed on the federal government and its lands in defiance of the U.S. Constitution and the will of Congress. Apposite here is the holding in Brubaker v. Board of County Commissioners, 652 P.2d 1050 (Colo.1982), where the Colorado Supreme Court reversed the denial of a local special use permit to conduct test drilling on unpatented mining claims located on federal land. The Brubaker Court found that the County Board's application of its zoning regulations effectively prohibited a use of federal lands authorized by federal law. In so holding, the Brubaker Court found pertinent the decision in Ventura County v. Gulf Oil Corp., 601 F.2d 1080 (9th Cir. 1979), aff'd mem. 445 U.S. 947 (1980). In that case, the County of Ventura attempted, through its zoning ordinances, to prevent a federal oil lessee from conducting drilling operations on federal land until it obtained a permit from the county. In finding that the county's ordinances were preempted, the Ninth Circuit held that the Supremacy Clause precluded enforcement of the ordinances against the lessee because the "federal Government has authorized 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." 601 F.2d at 1084. See also Kirkpatrick Oil & Gas Company v. United States, 675 F.2d 1122, 1126 (10th Cir. 1982) (state oil and gas communitization order may not bind federal land without the consent of the Secretary of the Interior.) In an effort to bolster its position, Pitkin County mistakenly relies on the holding in Massachusetts v. Environmental Protection Agency, ___U.S.___, 127 S.Ct. 1438 (2007). There, state and local governments and environmental organizations requested review of an EPA order 7

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denying a petition for rulemaking to regulate greenhouse gas emissions from motor vehicles under the federal Clean Air Act. In upholding the petitioners' right to pursue such action, the Supreme Court noted that Congress had expressly authorized such a challenge to EPA's inaction pursuant to 42 U.S.C. § 7607(b)(1). Id., at 1453. Here, Congress has not authorized any state or local government to impose its subdivision authority on the conveyance of federal land. Pitkin County is also not assisted by the decision in Mount Olivet Cemetery Ass'n v. Salt Lake City, 164 F.3d 480 (10th Cir. 1998). There, the court held that the determination of present ownership of the property at issue effectively resolved the applicability of a City zoning ordinance because "if the property is owned by the federal government, the City lacked authority to enforce its zoning designation of that property." 164 F.3d at 485. There, the facts showed that Congress had deeded ownership of the land to the Association with a right of reverter in the federal government in the event the land was no longer used as a cemetery. To avoid a City open-space zoning ordinance, the Association argued federal preemption. In its decision, the Tenth Circuit concluded that the federal government's contingent future interest in the land ­ the right of reverter ­ was an insufficient interest to allow the present owner, the Association, to avoid the local zoning law. Additionally, the court found a case for federal preemption lacking because, inter alia, "the City does not assert a right to regulate in any area that is regulated by the federal government." 164 F.3d at 489. Here, the division of federal land is not subject to the County's purview for the very reason that its use is controlled by federal law. Colorado's subdivision law is inapplicable and federally preempted. A decision by the Secretary of Agriculture to convey less than 35 acres of federal lands for a lawful purpose cannot be thwarted by a state subdivision law. The Secretary may dispose of sovereign federal land in a 8

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manner consistent with his or her statutory authority and the public health, safety, and welfare, without local interference. To hold otherwise would subject all federal lands to the conflicting vagaries of states' subdivision laws and violate the clear intent of the Property and Supremacy Clauses. U.S. Constitution, Art. IV, § 3, cl. 2 and Art. VI, cl. 2. As the Supreme Court has observed: 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. If Congress has not entirely displaced state regulation 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, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 581 (1987) (holding that Commission's permit requirements regarding environmental matters did not implicate land use or fall within the federal government's pre-emption of land use planning involving federal lands.) (Emphasis added; citations and internal quotations omitted). Pitkin County's reliance on Colorado's 35-acre subdivision provision is an impermissible obstacle to the Secretary of Agriculture's lawful decision, as expressly authorized by Congress, to determine the use and occupancy of federal lands, and should therefore be rejected. Pitkin County's express land use authority ends "where other procedural or substantive requirements for the planning for or regulation of the use of land are provided by law...." Colo.Rev.Stat. § 29-20-107.

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C.

PITKIN COUNTY ITSELF RECOGNIZES THAT IT CANNOT CONTROL OR REGULATE THE CONVEYANCE OF FEDERAL PROPERTY .

Pitkin County concedes that "the United States can effectuate such a conveyance without regard to state or local law." Response, at 3 and 14 (Doc. 43). Despite this correct observation, Pitkin County then argues that once the United States creates and conveys Parcel A to Deane, Parcel A would constitute an illegal subdivision or parcel. This argument vitiates Pitkin County's concession and is no less than an reductio ad absurdum. Pitkin County cannot claim, on one hand, that it has no authority to regulate the conveyance to Deane and then, on the other hand, once the conveyance is complete, claim that the result of the conveyance is illegal. Pitkin County's argument­that it may regulate indirectly if not directly­is an improper and illogical attempt to defeat the conveyance and skirt federal preemption principles. D. THE REQUEST FOR JUDICIAL APPROVAL OF THE SETTLEMENT IS NOT AN ATTEMPT TO EVADE THE COLORADO SUBDIVISION STATUTE.

Pitkin County states that "the only plausible reason the Settling Parties seek judicial approval here . . . is to take advantage of § 30-28-101(10)(c)(II), which states that divisions of land created by court order are not considered subdivisions." Response Brief at 3. To be accurate, this issue was brought to the Court only after: (1) the United States had repeatedly and for over a year invited the County's consideration of the settlement; (2) the United States had provided the Pitkin County Attorney with copies of all of the settlement documents; and, (3) the Forest Service had made a presentation to the Pitkin County Board of County Commissioners regarding the terms of the settlement. Pitkin County's only response regarding the proposed settlement was to inform counsel for the United States that if the parties consummated the

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settlement, it would assert that it was an illegal subdivision in violation of § 30-28-101 and would sue Deane to force him to raze the old Ophir cabin. In the face of Pitkin County's obduracy, the Settling Parties had no choice but to request that this Court approve the settlement and the division of federal lands resulting in Parcel A based on a provision in the Statute, § 30-28-101(10)(c)(II), which provides that the "terms `subdivision' and `subdivided land'... shall not apply to any division of land: ... [w]hich could be created ... by operation of law, or by order of any court in this state .... Id. Pitkin County's contention that the Settling Parties should not have raised this issue with the Court and should have instead conducted "a simple exchange of deeds" is absurd and would have left Deane in an untenable position with Pitkin County. Therefore, although neither the United States nor Deane believe the Statute at issue applies, because Pitkin County made clear its intent to assert a violation of the statute, the Settling Parties were left with no choice but to seek judicial approval of the settlement. These circumstances do not evidence an intent by the Settling Parties to evade anything. Moreover, given Pitkin County's rationale, any attempt by anyone to invoke § 30-28-101(10)(c)(II) of the Statute would always be an attempt to evade the Statute. This rationalization would render this portion of the Statute a nullity. See Clark v. Arizona, 126 S. Ct. 2709, 2723 n.24 (2006) (The usual rule of statutory construction is to give effect, if possible, to every clause and word of a statute.)

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II.

PITKIN COUNTY'S OBJECTIONS TO THE PROPOSED SETTLEMENT ARE NOT SUPPORTED BY FACT. A. PITKIN COUNTY 'S OBJECTIONS ARE SIDE SHOW .

Pitkin County's stated reason for objecting to the creation and conveyance of Parcel A to Deane is that "[i]f the Forest Service begins carving out federal lands ­ like Parcel A ­ in the Rural and Remote zone district and transferring them into private ownership, the entire purpose of the TDR program will be undermined and the community balance underlying the program will be upset." Response Brief at 4. This statement, however, is at odds with the facts. First, Pitkin County has no basis to suggest that the Forest Service is going to begin carving out parcels in the National Forest and transferring them into private ownership. Pitkin County has not and cannot point to even one analogous example. The Parcel A property transfer is, by all accounts, extremely unusual and, ironically, one in which Pitkin County has played a key role in creating. The federal lands described in Deane's underlying cases were all obtained by the United States from Pitkin County in a 1994 land exchange. See EXCHANGE ACT , Public Law No. 103-255 § 5(c), 108 Stat. 684 (1994). Since 2000 and while Pitkin County has been enjoying the former federal lands it obtained from the United States in exchange, the United States has been embroiled in litigating 51 cases challenging the validity of the titles that the United States acquired from Pitkin County. The proposed settlement resolves 15 cases brought by Deane challenging the titles to lands received by the United States from Pitkin County. Moreover, the United States' creation and conveyance of a single parcel that does not meet the 35-acre minimum in Pitkin County's "Rural and Remote" ideal does not change the status quo of the acreage at issue. The 2.2-acre parcel already has an existing cabin and the

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conveyance deed for Parcel A contains restrictive covenants that reveal the parties' goals, which are kindred to that argued by Pitkin County: to limit development. The transfer of Parcel A to Deane includes only the surface and the following rights and restrictions running with the land: ... the existing cabin and the 2.26 surrounding surface acres associated with the Ophir Lode Mining Claim and The Diamond Lode Mining Claim ... together with all rights of ingress and egress thereto to utilize the rights and interests therein, subject, however, to restrictive covenants ... for the benefit of ... the White River National Forest and Pitkin County, Colorado, to wit: the size of the existing 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, including separate toilet facility, which must be a composting-type facility, except that these restrictive covenants shall be deemed void and unenforceable if the cabin is subject to a final order requiring that it be modified or removed pursuant to the Pitkin County Land Use Code (including those provisions applicable to Rural and Remote locations), the Pitkin County Building Code, and/or Section 30-28-120, C.R.S. (2006). Opening Brief, Ex. F, Stipulation and Cross-Conveyance of Interests. (Doc. 42, Attachment 8.) An already existing cabin with deed restrictions limiting its size to 500-square-feet, a requirement for a composting-type toilet facility, and 2.2 acres of land is simply not the stuff of a conveyance that will trigger the uncontrolled development concerns that caused the Colorado Legislature to enact subdivision regulation in the first instance. Second, Pitkin County's argument with respect to the TDR program is a red herring. Pitkin County's brief explains that landowners of parcels in the Rural and Remote zone are "encouraged to sell transferable development rights (TDRs) from their properties in exchange for cash through a market-based system." Response Brief at 4. Once properties are stripped of their TDRs, or development rights, they cannot be developed, thereby preserving the then existing character of the land. Pitkin County then baldly asserts that somehow, through this proposed

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settlement, "the entire purpose of the TDR program will be undermined and the community balance underlying the program will be upset." In reality, this settlement accomplishes the same result that would occur if there was a TDR associated with Parcel A that had been stripped off and sold on the open market. The deed restrictions concerning Parcel A ensure that the parcel will not be developed and that the character of Parcel A will remain substantially the same as its current state. More important, TDRs are not involved; there is no TDR associated with or connected to Parcel A. And, Deane has neither the intention nor the desire to further develop Parcel A. (Ex. I to Doc. 42, Deane Affidavit.) As a result, the Forest Service's conveyance of Parcel A to Deane has no negative impact on Pitkin County and does not change the status quo of the 2.2 acres at issue. B. PITKIN COUNTY HAS NOT ALREADY ACCOMPLISHED THE PUBLIC GOOD THAT WILL RESULT FROM THE PROPOSED SETTLEMENT .

The County also argues that the settlement is unnecessary and not in the public interest because Pitkin County has "already preserved the wilderness character of all the parcels in question through its TDR program or conveyance of good title to the United States pursuant to the EXCHANGE ACT ." Response Brief at 4. Pitkin County is wrong. First, regardless of the fact that Pitkin County represents that it conveyed "good" title to the United States in the 28 EXCHANGE ACT properties at issue in the Deane lawsuits, Deane disagrees. As a result, he filed 15 quiet title cases challenging the United States' title to the 28 EXCHANGE ACT properties. This settlement resolves, by compromise, Deane's challenge to the United States' title to those 28 EXCHANGE ACT properties conveyed by Pitkin County. If the

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settlement is not consummated, the United States will be forced to litigate the quiet title cases ­ unnecessarily consuming both government and judicial resources. Second, Pitkin County conveniently ignores the public interest served by the United States in obtaining, only as part of the settlement, the 7 Deane Wilderness-area parcels that are not involved in any litigation. If the settlement is not consummated and Deane's cases are tried, the United States will not be deeded the 7 Deane Wilderness-area parcels regardless of the outcome of litigation. These parcels are extremely valuable to the public because they involve three recreational trails used by the public that are not currently subject to any formal easement for such use, as well as a parking area used by the public to access Castle Peak, a 14,000-foot peak used by climbers throughout the year. Additionally, by obtaining title to these lands, the United States would eliminate approximately 4.5 miles of boundary survey and 28 boundary monuments. Opening Brief, Ex. J, Gustafson Declaration ¶¶10-17. In sum, Pitkin County's objections are not supported by the facts The creation and conveyance of Parcel A will not change the status quo of the property or have any adverse impact on Pitkin County's zoning or TDR program. Moreover, the public interest will be well served by approval of the settlement because limited governmental resources will be preserved, the inherent risk of litigation will be avoided, title in the 28 EXCHANGE ACT properties will be quieted in the United States, and the United States will obtain 7 additional Wilderness-area parcels that are valuable to the public.

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III.

NEITHER DISCOVERY NOR AN EVIDENTIARY HEARING ARE REQUIRED In its response, Pitkin County complains that it requires formal discovery and an

evidentiary hearing before it can justify its case that the United States and Deane are attempting to evade the Colorado subdivision law. This unnecessary request to further expand and delay the conclusion of these proceedings should be rejected. Pitkin County was a party to the initial exchange of the EXCHANGE ACT lands, which included the Ophir and the Diamond Lode Mining Claims. Pitkin County did not reserve any rights or interests in any of the properties conveyed under the EXCHANGE ACT . Opening Brief, Ex. K (Doc. 42, Attachment 2). Pitkin County has been informed of these proceedings since the inception of litigation challenging Pitkin County's EXCHANGE ACT property transfers because Pitkin County is ultimately liable to the United States if it failed to prevail in the litigation. Pub. L. No. 103-255 § 6, 108 Stat. 684 (1994) (Ex. A to Opening Brief, the EXCHANGE ACT .) Pitkin County was provided with copies of the settlement documents over a year ago and has been well advised of the parties' reasons for the proposed establishment and federal conveyance of Parcel A to Deane. See Exs. I (Deane Affidavit) and J (Gustafson Declaration) to Opening Brief (Doc. 42, Attachments 1 and 11). No proper purpose would be served by imposing additional burdens on the litigants, the Court, and the taxpayers. WHEREFORE, for the reasons set forth herein and in the Consolidated Opening Brief, plaintiff Wyrick G. Deane and defendants United States of America, Secretary of Agriculture, and the United States Forest Service request that this Court issue its order granting their motion to approve the proposed global settlement. (Doc. 30; Proposed Order, Attachment 10.)

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Respectfully submitted this 23rd day of April, 2007.

TROY A. EID UNITED STATES ATTORNEY s/Roxane J. Perruso Roxane J. Perruso Assistant United States Attorney U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone: 303-454-0127 Attorneys for Defendant United States WELBORN SULLIVAN MECK & TOOLEY , PC s/Kathryn Haight Kathryn Haight 821 - 17th Street, Suite 500 Denver, Colorado 80202 Telephone 303.830.2500 Facsimile 303.832.2366 [email protected] Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 23rd day of April, 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 e-mail addresses: Roxane J. Perruso Assistant U.S. Attorney 1225 17th Street, Suite 700 Denver, CO 80202 [email protected] John Michael Ely Pitkin County Attorney 530 East Main Street, #302 Aspen, CO 81611 [email protected] Christopher Giles Seldin Pitkin County Attorney's Office 530 East Main Street, #302 Aspen, CO 81611 [email protected]

and that I have mailed or served this document or paper to the following non CM/ECF participants via e-mail to the following nonparticipant: Via e-mail Helena Jones-Siddle, Esq. Office of the General Counsel USFS-USDA 740 Simms Street, Room 309 Golden, Colorado 80401 [email protected] s/Roxane J. Perruso Roxane J. Perruso

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