Free Brief - District Court of Colorado - Colorado

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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-cv02371-WDM-BNB, 00-cv-02372-WDM-BNB, 00-cv-02373-WDM-BNB, 00-cv-02374-WDM-BNB; and, 00-cv-02364-MJW-BNB and 00-cv-02394-MJW-BNB)

WYRICK G. DEANE, Plaintiff, v. MILTON TUCKER, et al., Defendants. _____________________________________________________________________________ CONSOLIDATED OPENING BRIEF _____________________________________________________________________________ This brief is jointly filed by plaintiff Wyrick G. Deane ("Deane") and defendants United States of America, Secretary of Agriculture, and the United States Forest Service (the "United States"). Pursuant to this Court's February 8 and March 13, 2007 Orders (Docs. 32 and 41), the issue to be addressed by the parties and by the specially joined Board of County Commissioners of Pitkin County, Colorado ("Pitkin County") is as follows: ISSUE 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? See February 8, 2007 Order, ¶1, page 2. (Doc. 32.) 1

1

For the Court's convenience, a copy of the proposed Settlement Agreement is attached as Exhibit B and the proposed real property conveyances are attached as Exhibits C thru F (referenced as Exhibits 1 through 4 in the Agreement). A copy of Col.Rev.Stat. § 28-30-101 is attached as Exhibit G.

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STATEMENT OF THE CASE A. The Litigation Deane and the United States are the remaining parties in these fifteen consolidated cases, 2 all subject to final disposition under the terms of the proposed global settlement. Ex. B through Ex. F. Involved in these fifteen cases are issues of title in "patented" 3 mining-claim acres located in the White River National Forest in Pitkin County, Colorado. The United States' position is that pursuant to the terms of a land exchange between the United States and Pitkin County in 1994, Pitkin County conveyed to the United States all right and title in and to all of the disputed acreage involved in the fifteen Deane cases, and that Deane possesses no rights therein. The land exchange between the United States and Pitkin and Eagle Counties was authorized in 1994 by an act of Congress. Pub. L. No. 103-255 § 5(c), 108 Stat. 684 (1994). Ex. A, the EXCHANGE ACT. Under the EXCHANGE ACT, Pitkin and Eagle Counties transferred to the United States approximately 1,307 acres located within or adjacent to the White River National Forest and, in exchange, the United States conveyed a 217-acre parcel once known as the Mount Sopris Tree Nursery. See also Ex. K, 1994 Quit Claim Deed. The United States asserts that all of the EXCHANGE ACT lands conveyed by Pitkin County to the United States have been incorporated into, managed, controlled, and opened to the public as part of the White River National Forest. Ex. J, Gustafson Declaration ¶5.

2

Deane's 15 cases were part of a group of 51 quiet title actions filed on or about November 30, 2000, by various plaintiffs against the United States and referred to as the "Mt. Sopris Cases." Of the 51, one was voluntarily dismissed, four were settled, five were decided in favor of the United States, 26 were administratively closed, and the instant 15 are subject to the proposed settlement. Former co-plaintiff Nancy Oliphant (Deane's Case No. 00-cv02394-MJW-BNB) was dismissed on October 3, 2002. (Doc. 30.) Ms Oliphant will, however, sign the settlement agreement and related quitclaim deed relating to that case for clarity of the real property records.

A "patent is the conveyance by which the United States passes its title to portions of the public domain. A patent issued by the United States under authority of law is the highest evidence of title . . .." 2 AMERICAN LAW OF MINING, § 54.01 (2004).

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Pursuant to the EXCHANGE ACT, a federal quiet title action is the "sole legal remedy" available to one claiming an interest adverse to the United States in any of the EXCHANGE ACT lands. Id., at § 5(a). In these fifteen quiet title cases, Deane disputes the United States' title and contends that he holds superior and prior record title in the disputed EXCHANGE ACT properties based on several grounds, including adverse possession. Deane also challenges the validity of Pitkin County's assumption and purported transfer of title to the United States in the disputed EXCHANGE ACT properties. The United States disagrees and contends that Pitkin County lawfully obtained and transferred title to the EXCHANGE ACT properties based on county acquisitions in the early 1900s for unpaid taxes. Should Deane prevail, "the United States shall be entitled to receive from [Pitkin County] reimbursement equal to the fair market value ... of the lands that are the subject of such final determination." Id., at § 6(a). B. The Proposed Global Settlement To resolve their disputes, the proposed compromise between Deane and the United States involves Deane's quitclaim of over 300 acres to the United States and the United States' crossconveyance of 2.26 surface acres to Deane. See Exs. B thru F; Ex. I, Deane Affidavit; Ex. J, Gustafson Declaration. The conveyance acreage includes 28 EXCHANGE ACT properties and 7 non- EXCHANGE ACT properties (the "Deane Parcels") transferred as follows: (1) Deane's quitclaim deeds to the United States of all 25 EXCHANGE ACT properties 4 involved in the Deane cases, including the Ophir Lode Mining Claim. These conveyances comprise approximately 230 acres of inholdings in the White River National Forest.
4

See Exhibit C, Quitclaim Deed, concerning the Reveille Lode Mining Claim. See Exhibit D, Quitclaim Deed, concerning the A.J.P., the Colorado, the Little Jessie, the Centennial #2, the Chicago, the Ellis, the Extenuate, the Occident, the Great Expectations, the Helena, the Pride of the West, the Silver Chief, the Imperial, the Silver Glance, the Spar, the St. Elmo, the Kitty Bowen, the Leona, the Little Giant, the Little Grace, the Terra, the Paystone, and the Surprise Lode Mining Claims; and, see Exhibit F, Stipulation and Cross-Conveyance of Interests, concerning the Ophir Lode Mining Claim.

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(2) Deane's quitclaim deeds to the United States of 3 additional EXCHANGE ACT properties consisting of over 15 acres in the White River National Forest,5 including the Diamond Lode Mining Claim, none of which are the subjects of litigation. (3) Deane's conveyance to the United States of 7 Parcels--non-EXCHANGE ACT properties 6 encompassing over 67 acres of private inholdings located within the Maroon Snowmass Wilderness Area and the White River National Forest. Deane would reserve only the transferable development rights in the Deane Parcels. Deane's ownership of all right, title and interest in these 7 properties is undisputed. (4) The United States' cross-conveyance to Deane of a small surface parcel ("Parcel A") carved out of two EXCHANGE ACT properties, the Diamond and the Ophir, consisting of approximately 2.26 acres and the Ophir cabin. 7 Regarding the cross-conveyance described in paragraph (4) above, the transfer of Parcel A to Deane includes 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). Ex. F, Stipulation and Cross-Conveyance of Interests.
5

See Exhibit D, Quitclaim Deed, concerning the Marion and the Grand Union Lode Mining Claims; and, see Exhibit F, Stipulation and Cross-Conveyance of Interests, concerning the Diamond Lode Mining Claim.

Deane would quitclaim to the United States all of his undisputed right, title and interest, both surface and mineral, in the Champion, the Great Western, the Expectation, the Central Terror, the Parallel, the Granite, and the Robert Bonner Lode Mining Claims. Exhibit E, Quitclaim Deed.
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The plats and legal description for Parcel A are attached as Exhibit H.

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C.

Federal Approval ­ Pitkin County's Rejection In late 2004, the parties completed negotiations and the proposed settlement agreement

was submitted for approval to the affected federal government agencies. In approximately April 2006, final approval of the proposed settlement was obtained from the U.S. Department of Justice and the U.S. Forest Service, Department of Agriculture, in Washington D.C. In the spirit of comity, on March 21, June 13, and June 29, 2006, the United States asked Pitkin County to approve the proposed settlement. In so doing, the United States relied on, but did not concede the applicability of, Col.Rev.Stat. § 30-28-101, which concerns the subdivision of county lands. On August 14, 2006, County Attorney John Ely informed undersigned counsel for the United States that Pitkin County would not approve that portion of the settlement involving Deane's quitclaim of two EXCHANGE ACT properties to the United States (the Ophir and the Diamond Lode Mining Claims) and the cross-conveyance to Deane of Parcel A and the Ophir cabin. See Ex. F, Stipulation and Cross-Conveyance of Interests. These are material aspects of the proposed settlement, without which there would be no settlement. Because the United States was unable to persuade Pitkin County to approve the proposed settlement, on February 1, 2007, Deane and the United States filed a Joint Motion to Issue Notice to Pitkin County and for Entry of Order Approving Proposed Global Settlement. (Doc. 30.) In Pitkin County's February 27, 2007 Motion to Join, Pitkin County inexplicably asserted that the proposed real property transfers constituted "an attempt by the parties to evade the subdivision regulations of Pitkin County adopted pursuant to Colo. Rev. Stat. § 30-28-101 et seq." (Doc. 36, ¶2.)

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D.

Merits of Proposed Settlement Deane has agreed to quitclaim more than 300 acres to the U.S. Forest Service while

reserving a 2.26 surface-acre parcel and the Ophir cabin. In addition to resolving fifteen lawsuits, the proposed settlement would: (i) quiet title in the United States to 25 Forest-area EXCHANGE ACT properties subject to the litigation; (ii) quiet title in the United States to 3 additional Forest-area EXCHANGE ACT properties not subject to litigation; (iii) expand the federal public domain to additionally include the 7 Deane Parcels located in a designated wilderness area; and, (iv) reserve to Deane the 2.26 surface-acre Parcel A--a parcel deemed by the Forest Service to be most suitably used for the exchange of lands--carved from two EXCHANGE ACT properties, the Ophir and the Diamond Lode Mining Claims. Ex. I, Deane Affidavit; Ex. J, Gustafson Declaration. The 7 Deane Parcels are not subject to either the EXCHANGE ACT or to any litigation. Acquisition of the Deane Parcels is a high priority of the United States. Ex. J, ¶¶10-14. The Deane Parcels, which would be conveyed to the United States only under the terms of the proposed settlement, are mainly located in the Maroon Snowmass Wilderness Area. Ex. I, Deane Affidavit ¶5; Ex. J, id. These Parcels comprise 65 percent of the remaining privatelyowned parcels located in the Wilderness Area lying within Pitkin County. Ex. J, id. See Ex. E, Quitclaim Deed. The 7 Deane Parcels are described here by claim name, U.S. Mineral Survey Number, acreage, and area description:

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LODE MINING CLAIMS Champion Great Western Expectation Central Terror Parallel Granite Robert Bonner TOTALS = 7 properties

USMS # 3763 # 6054 # 7024 # 0633 # 5295 #2821 #5509

ACRES 10.33 5.88 10.33 10.33 10.33 10.06 10.00 67.26

AREA DESCRIPTION Up Conundrum Valley 2 miles up East Maroon Pass Trail Top of East Maroon Pass Top of East Maroon Pass Top of East Maroon Pass Parking lot at Montezuma Base; access to Castle Peak Up Conundrum Valley above Albouy Marble Quarry Site

Ex. I, Deane Affidavit ¶5. Thus, the 7 Deane Parcels comprise over 67 acres of wilderness and trailhead lands and private inholdings located within the Maroon Snowmass Wilderness Area and the White River National Forest. Ex. J, ¶¶11-13. Only under the terms of the proposed settlement could they become part of the public domain. By acquiring the Deane Parcels, the United States would obtain three recreational trails used by the public that are not currently subject to any formal easement for such use. The United States would also obtain a parking area used by the public to access Castle Peak, a popular 14,000-foot peak used by climbers throughout the year. Placing the seven Deane Parcels in federal ownership would also eliminate any obligation to provide Deane with access rights across existing wilderness lands to his now privately-owned Parcels. Additionally, by obtaining title to these lands, the United States would eliminate approximately 4.5 miles of boundary survey and 28 boundary monuments. Private properties in this area have been a high-acquisition priority for the United States for many years. Acquiring the 7 Deane Parcels is therefore consistent with, and in substantial furtherance of, this priority acquisition goal. Ex. J, Gustafson Declaration ¶¶10-17. The United States' agreement to cross-convey Parcel A to Deane also well serves the interests of the parties and the public. As part of two EXCHANGE ACT properties ­ the Ophir and

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the Diamond ­ this 2.26 surface-acre parcel located on Richmond Hill is already encumbered with a cabin. See Ex. F, Stipulation and Cross-Conveyance of Interests. The area of the forest where Parcel A is located contains many small mineral properties resulting in an extremely mixed ownership pattern. This mixture makes management of the area difficult for the Forest Service. In fact, the area is not currently managed for either recreational or product use by the Forest Service. Parcel A is located out of view from surrounding national forest lands and is accessed by an existing road. The Forest Service has determined that the highest and best use of such area lands is as exchange lands for the acquisition of properties more suited to National Forest management. Ex. J, Gustafson Declaration ¶15. Deane is partial to the Parcel A property for sentimental reasons, for its beautiful scenic views, and because it has an existing cabin ­ the old Ophir mining cabin. Deane's receipt of Parcel A and the Ophir cabin, along with rights of ingress and egress thereto, are material aspects of the proposed settlement. Ex. I, Deane Affidavit, ¶¶ 6-7. In addition to obtaining quiet title to Parcel A and the Ophir cabin and secured access thereto, the proposed settlement would conclude this litigation. Further, the results of the proposed settlement ultimately further some of Deane's long-time goals. Over the past thirty years, Deane has acquired patented mining claims in an attempt to prevent the possibility of extensive development of these lands, and the proposed settlement would place over 300 acres of forested and wilderness lands within the protection of the U.S. Forest Service. Ex. I, ¶¶7-9. Finally, Deane is not a real estate developer. He does seek to evade any law and he has no intent to subdivide Parcel A. Ex. I, ¶¶ 6-9. The proposed settlement is not believed to either implicate or evade Colorado's subdivision laws.

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LEGAL ARGUMENT 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 has indicated that its objection to the proposed settlement relates only to that portion reflected in Exhibit F, the Stipulation and Cross-Conveyance of Interests involving two EXCHANGE ACT properties, the Ophir and the Diamond Lode Mining Claims, and the carve-out therefrom, Parcel A. Deane and the United States contend that Colorado's subdivision laws are neither implicated nor evaded by the proposed settlement, but rather preempted by federal law. Furthermore, no proper purpose would be served by the application of such laws here. Therefore, the proposed settlement should be approved over Pitkin County's objection.

A.

PITKIN COUNTY IS PREEMPTED BY FEDERAL LAW WITH REGARD TO THE EXCHANGE ACT LANDS AND THE CREATION OF PARCEL A. For purposes of comity and because Pitkin County is ultimately liable to the United

States for the fair market value of EXCHANGE ACT properties should Deane prevail in the litigation, the United States repeatedly requested that Pitkin County approve the proposed settlement. Pitkin County's refusal to do so and its stated objection to the proposed settlement are unjustified because Pitkin County lacks jurisdiction over the management, use, and disposition of any of the EXCHANGE ACT properties. Pitkin County, as the 1994 transferor of the Ophir and the Diamond Lode Mining Claims to the United States under the EXCHANGE ACT, 8 has neither standing nor jurisdiction to contest the United States' division of those lands to establish and transfer Parcel A to Deane.
8

Deane does not hereby waive his legal position that his title in and to the subject Exchange Act properties was and is the superior title.

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Pitkin County does not and indeed cannot challenge the validity of its own property transfers to the jurisdiction of the United States under the EXCHANGE ACT. Furthermore, Pitkin County's transfer of the EXCHANGE ACT lands to the United States was without any reservation of rights or exceptions with regard thereto. Ex. K, 1994 Quit Claim Deed. Therefore, Pitkin County's objection to the proposed settlement is without any basis. When Pitkin County transferred all of its right, title and interest in the Diamond and the Ophir Lode Mining Claims to the United States in 1994, 9 these lands became part of the White River National Forest and subject to the federal Property Clause. The Property Clause provides that "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S. Const., Art. IV, § 3, cl. 2. This Court has "repeatedly observed" that "`[t]he power over the public land thus entrusted to Congress is without limitations.'" Kleppe v. New Mexico, 426 U.S. 529, 539, 96 S.Ct. 2285, 2291, 49 L.Ed.2d 34 (1976), quoting United States v. San Francisco, 310 U.S. 16, 29, 60 S.Ct. 749, 756, 84 L.Ed. 1050 (1940). California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 580 (1987). And, once Congress acts, `"federal legislation necessarily overrides conflicting state laws under the Supremacy Clause."' Id., 480 U.S. at 580-81 (citations omitted). The Supremacy Clause, U.S. Const., art. VI, cl. 2, provides: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. In considering the issue of federal preemption with respect to federal public lands, the Tenth Circuit Court of Appeals has observed: State 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
9

Exhibit J, Gustafson Declaration ¶15; Exhibit K, 1994 Quit Claim Deed, pp. 3, 5.

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use and to prescribe in what manner others may acquire rights in them." If Congress so chooses, federal legislation, together with the policies and objectives encompassed therein, necessarily override and preempt conflicting state laws, policies, and objectives under the Constitution's Supremacy Clause, U.S. Const. art. VI, cl. 2. Wyoming v. United States, 279 F.3d 1214, 1227 (10th Cir. 2002) (emphasis added) (citation omitted). With the possible exception of a state's police power, "Federal lands within a state are subject to federal authority to control occupancy and use, to protect the lands from trespass and injury, and to prescribe the conditions upon which others may obtain rights in the lands ...." 63C AM.JUR.2D Public Land § 9 (preemption of state law); see also Wyoming v. United States, 279 F.3d at 1226; Oklahoma City v. Sanders, 94 F.2d 323, 327-29 (10th Cir. 1938) (recognizing state's limited reservation of jurisdiction for service of process on lands ceded to the federal government). Colorado has consented to the federal acquisition of forest lands in Colorado as deemed appropriate by the U.S. Secretary of Agriculture. Col.Rev.Stat. § 3-1-134. Congress has declared that forest lands acquired by the Department of Agriculture must be held and administered as national forest lands. 16 U.S.C. § 521. Congress has expressly granted to the Secretary of Agriculture the authority to "regulate [the] occupancy and use" of national forests and to establish rules and regulations therefor. 16 U.S.C. § 551; 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.") Congress has also authorized the Secretary to grant easements on forest lands, 16 U.S.C. § 533, and to sell or exchange small parcels of national forest lands, 16 U.S.C. § 521d, including, as here, small parcels "of forty acres or less which are interspersed with or adjacent to

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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 efficient administration,..." 16 U.S.C. § 521e (emphasis added). See also Ex. J, Gustafson Declaration ¶¶ 15-16. The purposes to be served by the nation's forests are not that of residential or commercial development implicating any sort of local subdivision or housing regulations--ideas anathema to the congressional directive that such lands be held and administered as national forest lands. See 16 U.S.C. § 521. Rather, the purposes of the nation's forests are limited, e.g., to "outdoor recreation, range, timber, watershed, and wildlife and fish purposes." 16 U.S.C. § 528. In managing the national forests, however, cooperation with state and local governments is authorized: In the effectuation of sections 528 to 531 of this title [relating to the development and administration of renewable surface resources] the Secretary of Agriculture is authorized to cooperate with interested State and local governmental agencies and others in the development and management of the national forests. 16 U.S.C. § 530. The Secretary of Agriculture is also "authorized to cooperate" with state and local governments for law enforcement purposes. 16 U.S.C. § 551a. And while a state may exercise that civil and criminal jurisdiction it has reserved, id., even the freedom "to enforce its criminal and civil laws" on federal lands is circumscribed and must yield when in conflict with federal law. Kleppe v. New Mexico, 426 U.S. 529, 543 (1976). Here, because Congress has acted and authorized the Secretary of Agriculture to carve out lands such as Parcel A from national forest lands, Pitkin County is preempted from attempting to thwart the proposed settlement and the express Congressional grant of authority to the Secretary to do what is contemplated by the settlement. 16 U.S.C. §§ 521d and 521e. The

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Secretary of Agriculture, not Pitkin County, has the authority to regulate the management, use and transfer of federal EXCHANGE ACT lands within the White River National Forest. 16 U.S.C. §§ 521d, 521e. Because Pitkin County transferred its right, title and interest in the Ophir and the Diamond Lode Mining Claims to the United States under the EXCHANGE ACT, Pitkin County is both expressly and operationally preempted by federal law from contesting the United States' division of the Ophir and the Diamond to create Parcel A.

B.

PITKIN COUNTY'S OBJECTION IS WITHOUT BASIS AND DOES NOT SERVE THE PUBLIC HEALTH, SAFETY AND WELFARE. Even assuming, arguendo, that Colorado's subdivision law is here implicated despite

clear congressional intent to the contrary, basic rules relating to limited authority, legislative intent and statutory construction do not support its application here. Unlike home-rule cities, which have plenary authority to regulate matters of local concern, 10 Colorado's counties have only those powers delegated by the Colorado Constitution or the Colorado Legislature. Bd. of County Comm=rs of Douglas County v. Bainbridge, Inc., 929 P.2d 691, 699 (Colo. 1997). As a result: A county is not an "independent governmental entity existing by reason of any inherent sovereign authority of its residents; rather, it is a political subdivision of the state, existing only for the convenient administration of the state government, created to carry out the will of the state." Id. (citations omitted). Pursuant to the LOCAL GOVERNMENT LAND USE CONTROL ENABLING ACT OF 1974, Col.Rev.Stat. § 29-20-101, et seq. (the "ENABLING ACT"), the Colorado Legislature has

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City and County of Denver v. Qwest Corp., 18 P.3d 748, 754 (Colo. 2001).

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authorized counties to plan for and regulate the use of land within their jurisdictions. In exercising county land use jurisdiction, the Legislature has declared essential that such powers be used circumspectly. At § 29-20-201(1) of the ENABLING ACT, the Legislature affirmed the fundamental right of property ownership and declared: (a) The right to own and use private property is a fundamental right, essential to the continued vitality of a democratic society; (b) Governmental regulation of conduct, while equally essential to public order and the preservation of universally held values, must be carried out in a manner that appropriately balances the needs of the public with the rights and legitimate expectations of the individual; ... (Emphasis added.) The Legislature also expressed the practical constraints of its grant, stating that the county's 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...." Col.Rev.Stat. § 29-20107. Pursuant to the ENABLING ACT, the Legislature authorized boards of county commissioners to provide for the zoning and physical development of unincorporated county lands. § 30-28-102. The Colorado statute at issue, § 30-28-101(10), is attached as Exhibit G and, in pertinent part, provides as follows: (10) (a) "Subdivision" or "subdivided land" means any parcel of land in the state which is to be used for condominiums, apartments, or any other multipledwelling units, unless such land when previously subdivided was accompanied by a filing which complied with the provisions of this part 1 with substantially the same density, or which is divided into two or more parcels, separate interests, or interests in common, unless exempted under paragraph (b), (c), or (d) of this subsection (10). As used in this section, "interests" includes any and all interests in the surface of land but excludes any and all subsurface interests. * * * (c) Unless the method of disposition is adopted for the purpose of evading this part 1, the terms "subdivision" and "subdivided land", as defined in paragraph (a) of this subsection (10), shall not apply to any division of land:

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* * * (II) Which could be created by any court in this state pursuant to the law of eminent domain, or by operation of law, or by order of any court in this state if the board of county commissioners of the county in which the property is situated is given timely notice of any such pending action by the court and given opportunity to join as a party in interest in such proceeding for the purpose of raising the issue of evasion of this part 1 prior to entry of the court order ...; * * * (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. (Emphasis added.) The property transfers contemplated by the proposed settlement do not fall within this statute and certainly are not designed "for the purpose of evading" Colorado law. § 30-28101(10)(c). Instead, apparent from the terms of the proposed settlement is that the interests of the public would be well served if the settlement is approved and its terms fulfilled. The objected-to property transfers--the quitclaim of the Ophir and the Diamond to the United States and the carve-out and cross-conveyance of Parcel A to Deane--would not bring about anything either proscribed or circumscribed by Colorado law. The settlement does not authorize the creation of multiple interests, multiple ownership, or multiple dwelling units in or on county land; it does not create two or more county parcels, separate interests, or interests in common in county land; and, it does not enable an increase in population density in the county. Rather: (1) The conveyances to the United States of over 300 acres (including the Ophir and Diamond) would quiet title to these lands in a single owner as federal land. A transfer of land to the United States is outside the management purview and jurisdiction of Pitkin County and the regulatory intent of Col.Rev.Stat. § 30-28-101(10).

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(2) The United States' conveyance of Parcel A to Deane would create one undivided county parcel--Deane's 2.26 surface acres--under a single owner. That single parcel of land is not intended for any sort of property division or multiple ownership development. Ex. I, ¶¶ 6-9. This single parcel of singleowner land may, however, fall within the subdivision authority of Pitkin County and the regulatory intent of § 30-28-101(10) if ever Deane should seek to subdivide Parcel A. As a result, these property transfers are not subject to, and clearly do not "fall within the purposes" of, Colorado's subdivision law. See § 30-28-101(10)(d). Because Colorado's subdivision law necessarily restricts the free alienation of property, it is "in derogation of the common law and must be construed strictly." Bd. of County Comm'rs of Pitkin County v. Pfeifer, 190 Colo. 275, 278, 546 P.2d 946, 947 (1976). Also fundamental is that "land use regulation or enforcement must bear a rational relationship to the health, safety, and welfare of the community." Wilkinson v. Bd. of County Comm'rs of Pitkin County, 872 P.2d 1269, 1275-76 (Colo.App. 1993), citing Tri-State Generation and Transmission Ass'n, Inc. v. Bd. of County Comm'rs of Lincoln County, 42 Colo.App. 479, 481, 600 P.2d 103, 104 (1979). Additionally, county planning and building regulations are not subject to retroactive application because, under the grandfather provision, the "lawful use of a building or structure or the lawful use of any land, as existing and lawful at the time of the adoption of a zoning resolution ... may be continued." § 30-28-120 (emphasis added); Wilkinson, id., 872 P.2d at 1275. Application of these principles here makes clear that Pitkin County's objection to the proposed settlement does not fall within its authority or within the proper regulatory intent of the subject subdivision statute. The proposed deed concerning the Ophir, Diamond, and Parcel A (including the old Ophir cabin) do not violate Colorado law. Based on the ENABLING ACT, the subdivision statute (Col.Rev.Stat. § 30-28-101), the terms of the proposed settlement and the property transfers described therein, Pitkin County's

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objection to the settlement should be rejected as without merit, notwithstanding federal preemption. Neither the purposes of Colorado's subdivision law nor the public health, safety and welfare are served thereby. WHEREFORE, for the reasons set forth herein, plaintiff Wyrick G. Deane and defendants United States of America, Secretary of Agriculture, and the United States Forest Service request that this Court enter its Order approving the proposed settlement. Respectfully submitted this 26th day of March, 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 March 26, 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: 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/Kathryn Haight Kathryn Haight [email protected]

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