Free Response - 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
Civil Action No. OO-cv-02361-WDM-MEH (concerning related Case Nos. 00-cv-02361WDM-MEH through 02363- WDM-MEH: and Case Nos. 00-cv-02365- WDM-MEH through 00-cv-02374-WDM-MEH: and concerning Case Nos. 00-cv-2364-MJW-MEH and 00-cv-02394-MJW-MEH)
Case No. 00-cv-02361- WDM-MEH

WYRICK G. DEANE.

Plaintifl
v.

MILTON TUCKER. et ai.
Defendants.

PITKIN COUNTY'S RESPONSE TO CONSOLIDATED OPENING BRIEF

i. INTRODUCTION
Pursuant to this Court's Order of March 13.2007. defendant Board of

County

Commissioners of Pitkin County (the "County") respectfully submits the following
Response to the Consolidated Opening Brief fìled on March 26. 2007 by plaintifT Wyrick

Deane and defendant United States of America (collectively. the "Settling Parties"). The
County is before the Court pursuant to ~ 30-28-101 ( 10)( c )(11). C .R.S. (2006) for the sole

purpose of addressing how and why the Settling Parties~through their creation of a

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1:\ THE l:\llED STATES DISTRICT COlRl
FOR THE DISTRICT OF COLORADO

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proposed "Parcel A"~are attempting to evade the subdivision and other land use statutes
contained in Title 30. Article 28. Part i of

the Colorado Revised Statutes.

The primary argument advanced by the Settling Parties in their Opening Brief is
that federal preemption prevents the County from performing its regulatory duties here.

Their preemption argument however. fails on a number of levels~not the least of which
is the fact that it directly contradicts Forest Service regulations on the matter. which

explicitly state that "State. and local laws. rules. regulations. and zoning ordinances will
not be violated"" in a land exchange like the one the parties propose here. Consequently.

the Court must reach the substantive question of whether or not the Settling Parties"

purpose in seeking Court approval for their settlement is to evade state and local land use
law.

The County has not had the opportunity to take discovery in this matter and
therefore believes that an evidentiary hearing~as opposed to the summary judgment

approach adopted by the Settling Parties~is necessary before the Court can ultimately
determine whether or not the Settling Parties' purpose in submitting their settlement to

the Court for approval is to evade those state and local statutes. Accordingly. the County
will not repeat the Settling Parties' description of

their proposed settlement and the

events leading up to it. Because the Settling Parties paint a tendentious picture of the
public benefìts flowing from the proposed settlement. however. the County will brief1y

clarify certain of the facts relating to the settlement and the region afTected by it. The
County is prepared to provide further detail on such matters at an evidentiary hearing.

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Even so. however. it does seems clear that the only reason the Settling Parties
seek an order of

this Court formally approving their settlement is to evade state land use

law. An exchange of property interests~all the settlement calls for here~does not
require judicial involvement. It can be accomplished through a simple exchange of
deeds. with the parties retaining contractual remedies to enforce any ancillary terms. No
continuing judicial oversight of this settlement is necessary. or even contemplated by the

Settling Parties. Thus. the only plausible reason the Settling Parties seek judicial
approval here~rather than simply settling amongst themselves and tìling a joint motion
to dismiss~is to take advantage of ~ 30-28-101 (10)( c )(11). which states that divisions of

land created by court order are not considered subdivisions. The Court should decline
their invitation to condone this evasion of the law.

II. STATEMENT OF FACTS
Parcel A is located on the western t1ank of Aspen Mountain within a quarter mile
of

the Aspen Mountain Skiing Area. Situated on steep slopes. the only access to the

parcel is via a rugged and unimproved road that winds its way through similarly steep

terrain. The underlying zone district is Rural and Remote. See Houben Decl.. ~ 4.
Properties in the Rural and Remote zone district are typically characterized by

location more than one-half mile from winter-maintained public roadways: absence of
traditional utility services: limited availability or absence of emergency services: little or
no development in surrounding areas: presence of natural hazards such as rockfalL.

avalanche and wildtìre hazard: location within subalpine or alpine ecosystems: and

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FOR TIlE DISTRICT OF COLORADO
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locations adjacent to federal public land. That zone district requires a minimum parcel
area of 35 acres. See ¡d.. ~ 5.

The Rural and Remote zone district encourages landowners to sell transferable
development rights (TORs) from their properties in exchange for cash through a market-

based system. The purchaser of a TOR can then utilize it to increase the intensity of
development in other areas of the County. Over the years the Rural and Remote zone
district and the TOR program have resulted in the protection of many thousands of acres
in the backcountry areas of Pitkin County adjacent to. and interspersed within. United
States Forest Service lands. See ¡d. ~ 7. In fact all of the seven so-called "Deane

Parcels" that would be conveyed to the United States through the settlement but are not

subject to the litigation have already had their development rights stripped off and
wilderness character preserved through the TOR program. 5,'ee ¡d.. ~! 9.
If

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 TOR program will be undermined and the community balance underlying
the

the program will be upset. Accordingly. the settlement is not in the best interests of

public because it would illegally create Parcel A. and because Pitkin County has already preserved the wilderness character of all the parcels in question through its TOR program

or conveyance of good title to the United States pursuant to the Exchange Act. See ¡d. ~~
8. 10.

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III. ARGUMENT
As an initial matter. a point of claritìcation regarding the basis for the County's

participation in this matter is necessary. The Settling Parties allege that the County lacks
standing and jurisdiction to contest their settlement because the County previously

transferred to the United States its property interests in the affected parcels. See Op. Br.

at 9-10. It is true. but irrelevant that the County no longer retains a property interest in
the parcels at issue. Pursuant to this Court's Order and ~ 30-28-101. C.R.S. (2006). the

County is participating in this case as a political subdivision of the State of Colorado

charged by the State with regulatory authority over local land use matters. Property
ownership is immaterial to this regulatory authority.
Because the Settling Parties do not develop their standing argument in any detaiL.

it is unclear whether they argue the County lacks even the ability to assert its regulatory
authority. If they do. however. they are incorrect as a matter of law. See, e.g.

A1L1SSLlChlisetts ", Em'ironmental Protection A.iency. 2007 WL 957332 (U.S. April 2.

20(7) (noting that States have standing to sue in their quasi-sovereign capacities when an
issue preempted by federal law is one that the State. if not preempted. would likely

attempt to address through its lawmaking powers). Moreover. such a standing argument
would as a practical matter simply rise or fall along with their preemption argument and

thus be cumulative of it. Accordingly. the County does have standing to address the
limited issue of

evasion identitìed in the Court's Order and ~ 30-28-101. C.R.S.

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A. The Settling Parties Clearly Attempt to Evade Local Subdivision and
Zoning Laws.

The Settling Parties expressly admit that the Parcel A they seek to convey to

Deane must be "carved out of' two other parcels. This is the very detìnition of a
subdivision under ~ 30-28-101 (1 )( a). C.R.S.: that section detìnes "subdivision" to mean.
inter L1liLi. "any parcel of land in the state. . . which is divided into two or more parcels.

separate interests. or interests in common. . . ,'.
The Settling Parties contend that "carving out" one parcel from another parcel

does not amount to dividing one parcel "into two" when the federal government is

involved. But they do not explain why. Their argument appears to be that the detìnition
o f subdivision is different for land in federal ownership than it is for any other land. The
County is aware of no authority~and the Settling Parties have cited none~stating or
even suggesting that federal ownership of

the fathering parcel makes a ditTerence in

subdivision analysis. The federal parcel is still a parceL. and when a part of it is "carved

out" and given to someone else two parcels still result. The parties plainly attempt a
subdivision here. i

The question. then. is whether or not the Settling Parties are seeking this Courts
approval of their settlement in order to evade subdivision and related zoning laws. State

i The Seltling Parties' various argumenls on pages 13- I 7 regarding delegated powers and the public interest
are beside the point. The General Assembly has unambiguously delegated to the County the power to

regulate subdivision. zoning. and other land use matters. and indeed to participate in judicial proceedings as
here to protect those interests. It is well established that the elected Board of County Commissioners is the

entity charged with determining the public interest with regard to such malters, See. e,g.. Theohald l',
the legislative body
Board ofColinly Com'rs. 644 P.2d 942. 948-49 (Colo, 1982) ("I)t is the task of

charged with zoning to individually apply the broad planning policies to specific property. consistent with
the public interest. ' , ."),

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law explicitly states that divisions of land effectuated by court decree are not treated as
subdivisions. see ~ 30-28-101 (1 0)( c)(I). unless the judicial decree is pursued "for the

purpose of evading this part 1,"

The "Part I" in question is Part 1 of Article 28 of Title 30 of the Colorado

Revised Statutes. That Part 1 is entitled "County Planning". and addresses planning.
zoning. subdivision. and most other aspects of County land use regulation. In evaluating
whether or not the Deane/U .S. settlement is being adopted for the purpose of evading Part
1. therefore. a consideration of all these ditTerent aspects of land use law comes into play.

Subdivision regulation itself is the most obvious. but not only. authority that the
Settling Parties attempt to evade here. Section 30-28-133. C.R.S. (2006) requires that all

counties in Colorado adopt subdivision regulations. It turther spells out in detail the
various criteria those regulations must address. and the procedures that must be followed
in submitting and reviewing subdivision applications. State law requires approval of

the

Board of County Commissioners for any subdivision of land in the state not otherwise
exempted by ~ 30-28-101(10). see ~ 30-28-110(3)(a). C.R.S. (2006). and provides that
building permits may be withheld for parcels that do not obtain such approvaL. See ~ 30-

28-110(4)(a).2 In order to obtain such approval. applicants must submit a variety of
materials and information required by both state and local law. and the County must

obtain referral comments on the proposed subdivision from a variety of agencies. The
purpose of these submissions and referrals is to ensure the adequate availability of water
the subdivision laws criminalize. and render prima fàcie fraudulent, subdivision land transactions that do not receive Board of County Commissioner approvaL. The County does not contend that those provisions apply here, Because they would attempt to regulate the actual conveyance of federal law governing transfers of property. the County agrees that those provisions would be preempted by federal
public land,
è Certain aspects of

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FOR THE DISTRICT OF COLORADO
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and other utilities. access to emergency services. protection from natural and man-made
hazards. mitigation of wildlife and other environmental impacts. and other matters.

An independent but related requirement that the Settling Parties also seek to evade

here is the zoning applicable to Parcel A and the surrounding area. The Rural and
Remote zone district applies to Parcel A and requires a minimum lot size of 35 acres per

parceL. Subdivisions that create parcels less than 35 acres in size in the Rural and
Remote zone district are not allowed. See Hoiihen Decl.. ~r 6.

Obviously determining whether evasion is in fact the Settling Parties' purpose here will ultimately require a factual determination by this Court after an evidentiary hearing. The County vvill need to cross-examine the Settling Parties in order to establish as an evidentiary matter what the parties knew and intended with regard to the various

factors that come into play. The circumstances strongly suggest. however that evasion is
the Settling Parties' only plausible purpose for seeking Court approval for their
settlement here. Incorporating the terms of their settlement into an order of the court is

entirely unnecessary to settle this lawsuit. All the parties propose to do here is exchange
property interests. Litigants settle cases like this all the time through a simple exchange
of quitclaim deeds. with the parties retaining contractual remedies to enforce settlement

terms if necessary. Because of the "carve out" the Settl ing Parties seek here. however.
they clearly recognized their settlement would run afoul of subdivision and zoning laws.
and that they would need Court approval of

their settlement to make an end-run around

those state and local laws.

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Accordingly. the County respectfully requests that the Court decline the Settling
Parties' request for approval of their settlement.
B. 16 U.S.c. § 521e Does Not Preempt State and Local Land Use Laws.

Recognizing that state and local law clearly forbid the subdivision they attempt here. the Settling Parties devote most of their energies to contending that these state and

local laws are preempted by federal law. The party claiming preemption bears the burden
of showing with specifìcity that Congress intended to preempt state law. See Moiint
Olh'et ('emetery Ass 'n \', SLilt LLike ('ity. 164 F.3d 480. 489 n.4 (10th Cir. 1998).

The Settling Parties begin with a discussion of the Property Clause of the United

States Constitution. They do not and cannot argue. however. that the Property Clause in
and of itself preempts the state and local

land use laws at issue herein. See Wyomin,i \"

United S'tLites. 279 F .3d 1214. 1226 (101h Cir. 2002) ("Of course. the Property Clause

alone does not withdraw federal land within a State from the jurisdiction of the State."")

Rather. they observe that the Property Clause provides Congress with authority to enact laws relating to disposition of federal lands and to override and preempt conflicting state
laws "if Congress so chooses," See id at 1227. This is uncontroversial.

What is controversiaL. however. is their assertion that 16 U .S.c. ~ 521 e manifests

such a Congressional choice to preempt state and local land use laws. See Op, Br, at 12-

13. The Settling Parties shed little light on this controversy. as their analysis of
preemption begins and ends with the conclusory statement that ~ 521 e has preemptive
effect. Indeed. the Settling Parties do not even bother to spell out the standards

governing preemption. This complete absence of analysis may be due to the fact that the

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Tenth Circuits closely analogous l'vfount Olivet decision forecloses the argument they
make here.

Before addressing Moiint Olivet. however. the County will quickly address both

the basic standards governing preemption and the federal statute at issue here. In brief.
courts have developed three labels to refer to the various recognized categories of
preemption: (1) express preemption: (2) fìeld preemption: and (3) conflict preemption.

See. e,g. United States v. Dem'er. 100 F .3d 1509. 1512 (1otli Cir. 1996). The Settling

Parties do not explain which theory of preemption they believe governs here. but it

appears that conflict preemption is the most plausible basis for their argument. Conflict
preemption occurs "where it is impossible to comply with both the federal and state laws.
or the state law stands as an obstacle to the accomplishment of Congress' s objectives,"

Id
"Congressional intent is the touchstone of any preemption analysis," Mount
Olivet. 164 F .3d at 486. The statutory language on which the Settling Parties rely here is

brief and simple. Section 521 e authorizes the Forest Service to sell or exchange lands
with a value of less than $150.0003 which are forty acres or less in size and "are

interspersed with or adjacent to lands which have been transferred out of Federal

ownership under the mining laws and which are determined by the Secretary. because of
location or size. not to be subject to et1cient administration,"

~ The Parcel A the Seltling Parties wish to subdivide here is undoubtedly worth more than $ I 50,000, The the Aspen Mountain Ski Area. and even rustic properties in parcel is located in the immediate vicinity of

this area routinely change hands for sums approaching $ i million. Indeed, the development rights on the property alone could be sold through the Pitkin County TDR program for approximately $300.000, Accordingly. it is apparent that the Settling Parties cannot properly rely on ~ 52 i e in the first place. rendering their preemption argument-and the proposed conveyance itself-a nullity,

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The Settling Parties do not explain why they believe this language~which relates

merely to conveying lands not subject to et1cient administration--onf1icts with state
laws that regulate dnelopment of such parcels once they are out of federal ownership.
The legislative history of ~ 521 e indicates that the driving force behind this provision was

facilitating management of federal lands. and nothing more. Nowhere is there any
mention of what could be done with conveyed parcels after they left federal hands. and

nowhere is there even any indication that Congress wished to obtain the highest dollar
amount for such lands. 5,'ee S. REP. 97-332. 1982 U.S.C.C.A.N. 4457. 4460. To the
contrary. Congress explicitly limited use of

the Act to lands worth less than $150.000.

Moreover. the Forest Service's own regulations contradict the position it takes in this litigation. The implementing regulations for ~ 521 e and the other provisions of the
Small Tract Exchange Act are codifìed at 36 C.F.R. ~ 254.30. Section 254.36 contains

the guidance for determining whether a conveyance of federal land is in the public

interest a necessary requisite of the statute and the regulations. It directs. in part. that
"(aJpplicable FederaL. ""tate, and local

laws, rilles. re.i1I1ations. and zonin.i ordinances

,rill not he violated." 36 C.F.R. ~ 254.36(c)(7) (emphasis added). Thus. the Service's
own regulations hold that state and local subdivision and zoning laws should be upheld. and therefore run directly counter to the preemption position the Settling Parties advance
to the Court here..l

Consequently. the facts present here are remarkably similar to the facts present in
Olh'et Cemetery Ass 'no 164 F.3d 480. In that case. the United States transferred a parcel
l These regulations also clearly contradict the Settling Parties' contention that the County lacks standing to
challenge their proposed settlement.

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of land in Salt Lake City to a private association for cemetery purposes pursuant to an act

of Congress in 1909. Subsequent acts of Congress allowed use of the property for certain
non-cemetery purposes. culminating in a 1992 Act that allowed non-cemetery uses for a period up to 70 years so long as such uses would not prevent future use of the land for
cemetery purposes. See id. at 483-84.

In 1995. Salt Lake zoned the property as open space. which allowed a limited

range of uses including golf courses. recreation centers. public parks. and the like. The
open space zoning designation precluded residential or ottce uses of the property. See

id. at 484. The association entered into a lease for commercial use of a portion of the
property. and commenced litigation against Salt Lake on grounds that federal law

preempted the City's zoning on the property. See id.
The Tenth Circuit began its analysis of

the association's various preemption

arguments with the following observation:

Land use policy such as zoning customarily has been considered a feature of local government and an area in which the tenets of federalism are particularly strong. A local government has broad power to implement its land use policies by way of zoning classifìcations. As such. we begin with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.

Id. at 487 (citations omitted). With regard to conf1ict preemption. the association argued

that Salt Lake's zoning posed an obstacle to the achievement ofCongress's intent for the
property because it limited the revenue-generating potential of the property. See id. at

488. The court was not persuaded. noting that the statutory language addressing the

property spoke only of allowing "use other than a cemetery," The court concluded that

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..( 0 )ne certainly cannot reasonably infer from this text that Congress was even concerned
with revenue-generating use of

the property," Id. Likewise. the legislative history made

no mention of revenue-generating potential of the property.
Conf1ict preemption. the court held. "requires that the state or local action be a

material impediment to the federal action. or thwart the federal policy in a material way,"

5,'ee id. at 489 (citations omitted). "Yet the city does not assert a right to regulate in any

area that is regulated by the federal government."' Id. Accordingly. the court held. "(i)t is
unlikely by this vague Act that Congress intended to deal the Association such a precious
wild-card" of authorizing any use of the property. even if

prohibited by state or local law.

Id.

In this case. the Congressional purpose underlying ~ 521 e was merely to authorize

the conveyance of limited types of public lands. Neither the statute nor the legislative
history evinces any legislative intent that lands sold by the United States be susceptible to
any use at all after conveyance. Instead. the driving force behind the statute is clearly
streamlining the management obligations of

the Forest Service by removing certain lands

from its portfolio of

properties. And as in i'vlolint Olh'et. nowhere in the statute or

legislative history is there an indication that Congress wished to utilize these land

conveyances as a revenue-generating machine. Instead. the statute and legislative history
indicate that the Congressional purpose was to facilitate eftìcient land management. while

precluding fraud and abuse by ensuring that the United States receive fair market value
for parcels sold or exchanged.

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Accordingly. while it is certainly true that the United States can effectuate such a
conveyance without regard to state or local law. there is no indication in federal law that

provisions of the subdivision and zoning laws that govern use of the property after
subdivision are preempted.:' The Settling Parties' preemption argument therefore lacks
merit.

IV. CONCLUSION
Accordingly. the County respectfully requests that the Court decline to approve
the proposed settlement.

Respectfully submitted this 6th day of April 2007.
PITKIN COllNTY ATTORNEY'S OFFICE

Is John M. Ely John M, Ely
Is Christopher G. Seldin ('hristopher G. 5,'eldin

530 E. Main Street. Suite 302
Aspen. Colorado 81611

Telephone: (970) 920-5190 E-mail: j\i-...!.l.()JlUkiji.U).US
Jii~~l'_~l'i ¡hi c~()~ II S

,llTOR\U',')' FOR f):FI:'\Dl\I lllf\/\

(,ol,\n Im,IRl) 01. (,Ol\Tl (,Ulf\IISSIU\FRS

~ The provisions of

the subdivision statutes governing conveyances are separate and distinct from the provisions governing use. and consequently severable. See ~ 2-4-204, C.R,S. (2006) (stating presumption
of severabi I ity for Colorado statutes); Qwest Corp, v, City otSanta Fe. 380 F ,3d i 258. 1274 ( I otJi C ir. preemption analysis is governed by state law), 2004) (noting that severability for purposes of

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liNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

CERTIFICATE OF SERVICE

I hereby certify that on April 6. 2007. I electronically tìled the foregoing PITKIN
the Court using the CM/ECF system. which will send notifìcation of such fìling to the following eCOUNTY'S RESPONSE TO CONSOLIDATED OPENING BRIEF with the Clerk of

mail address:

Roxane J. Perruso
Assistant U.S. Attorney

1225 1 ih Street. Suite 700 Denver. CO 80202
I~t 1_" ~ i J1~~ ¡i L' l1jl'-l2JL li~I() i ' !. (~\

Kathryn Haight

Welborn Sullivan Meck & Toolev. P.C.

821 - 1 ih Street. Suite 500 .
Denver. CO 80202
¡"IwI!.hul-\smiLi\\ ,cum

and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner indicated by the party's name:
Via e-mLlil

Helena Jones-Siddle. Esq.
Oftìce of the General Counsel

USFS-LJSDA

740 Simms Street. Room 309 Golden. CO 80401
I kkii~lJJc1iiL's-S idJi~!l--Lisd~12)\

sl Jane Achev