Free Objections - District Court of Colorado - Colorado

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

Document 56

Filed 01/10/2008

Page 1 of 4

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 02374-WDM-MEH; and concerning Case Nos. 00-cv-02364-MJW-MEH and
00-cv-02394- MJW - MEH)

Case No. 00-cv-02361-WDM-MEH
WYRICK G. DEANE, Plaintiff,
v.

MIL TON TUCKER, et aI.,
Defendants.

DEFENDANT PITKIN COUNTY'S OBJECTION TO PROPOSED ORDER APPROVING GLOBAL SETTLEMENT
Defendant Board of County Commissioners of Pitkin County (the "County")
respectfully submits the following Objection to the proposed Order Approving Global

Settlement (the "Proposed Order") tendered to the Cour on December 28,2007 by
plaintiff

Wyrick Deane and defendant United States of America (collectively, the

"Settling Paries").

The Proposed Order asks the Cour to conclude that federal authority preempts the
local land use laws the County is charged to enforce. Like the Settling Parties'
Consolidated Reply Brief (Document 45), the Proposed Order rests its preemption
analysis not on the specific statutory authority applicable to the facts-16 U.S.C.
§ 521e-but on general provisions governing the overall powers of

the Deparment of

Agriculture. It appears that the Settling Paries, having acknowledged that the Forest

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Case 1:00-cv-02361-WDM-BNB
IN THE UNITED STATES DISTRICT COURT

Document 56

Filed 01/10/2008

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FOR THE DISTRICT OF COLORA CASE NO. 00 CV 02361-WDM-MEH
PITKIN COUNTY'S OBJECTION TO PROPOSED ORDER

Service's own regulations contradict the preemption argument presented in their

Consolidated Opening Brief (Document 42), hope the Cour wil forget that a more
specific statute actually governs this case.

The County's briefing discussed in detail 16 U.S.C. § 521e and the implementing
regulations governing Forest Service land conveyances like that proposed here. As the

County demonstrated, the applicable regulations set forth at 36 C.F.R. § 254.36(c)(7) specifically contemplate that "(a)pplicable Federal, State, and local laws, rules,

regulations, and zoning ordinances wil not be violated" when the United States conveys

forest property. The Settling Paries now ask the Cour to pretend this statute and
regulation no longer exist.

Instead, they now rely on 16 U.S.C. § 551, 7 C.F.R. § 2.60(a)(2) and 7 C.F.R.
§ 2.20(a)(2)(ii).! These sections describe, in very general terms, overall powers of

the

Deparment of Agricultue and of certain officials within that Deparment. Section 551,
for example, simply states that the Secretary of Agricultue has the power to regulate the
"occupancy and use" of

the National Forests.

This case, however, does not involve a question of either occupancy or use of
forest property. It involves a conveyance of

forest property. As the Settling Paries' own

Opening Brief confirms, a host of more specific statutes and regulations-including 16
U.S.C. § 521e and 36 C.F.R. § 254.36(c)(7), as well as a number of other provisions set

i The proposed Order also references 28 CFR § 0.160(a)(3). This is simply a regulation addressing who

within the Deparent of Justice has authority to settle which tyes of cases. The County's research
indicates that the United States has never even argued-much less had such an argument upheld by a

cour-that this procedural regulation could have substantive preemptive effect. If it did, there would be

no limiting principal to govern it, and the nation's Assistant U.S. Attorneys would be in a position to rewrite or eradicate essentially any state law on the books. The County submits such a constrction of the regulation is inconsistent with the presumption against preemption.

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Case 1:00-cv-02361-WDM-BNB
IN THE UNITED STATES DISTRICT COURT

Document 56

Filed 01/10/2008

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FOR THE DISTRICT OF COLORA CASE NO. 00 CV 02361-WDM-MEH
PITKIN COUNTY'S OBJECTION TO PROPOSED ORDER

forth in 36 C.F.R. Par 254-govern such conveyances. It is well-settled that detailed
statutory provisions control over more general provisions. See, e.g., RT Communications,
Inc. v. F. C. c., 201 F.3d 1264, 1269 (1oth Cir. 2000) (noting, in preemption context, that

"it is a well established rule of statutory construction that general policy does not trup
specific legislative provisions.")
As for the two sections from Title 7 of the Code of

Federal Regulations, these simply
the

explain the overall powers of

the Undersecretar of Agriculture and the Chief of

Forest Service. Both provide that these offcers have delegated power relating to the
"acquisition and disposition of lands," but only "as may be authorized." Thus, these
provisions of the regulations canot be read to trump the specific act of Congress-16

U.S.C. § 521e-governing conveyances ofland like that at issue here.
Accordingly, the County respectfully requests that the Cour decline to enter the
Proposed Order.

Respectfully submitted this 10th day of Januar 2008.

Is John M. Elv
Is Chrstopher G.Seldin
PITKIN COUNTY ATTORNEY'S OFFICE

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

Telephone: (970) 920-5190

iohne~co.pitkin.co.us
chriss0)co. pitkin.

co. us

ATTORNEYS FOR DEFENDANT PITKIN COUNTY
BOARD OF COUNTY COMMISSIONERS

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

Document 56

Filed 01/10/2008

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

CERTIFICATE OF SERVICE

I hereby certify that on Januar 10. 2008, I electronically filed the foregoing

DEFENDANT PITKIN COUNTY'S OBJECTION TO PROPOSED ORDER the Cour using the CMlCF system, which wil send notification of such filing to the following e-mail
APPROVING GLOBAL SETTLEMENT with the Clerk of

addresses:
Roxane J. Perrso

Assistant U.S. Attorney
1225 17th Street, Suite 700

Denver, CO 80202
Roxane.PeITuso0)usdoi .gov
Kathryn Haight

Welborn Sullivan Meek & Tooley, P.C. 821 - 1 ih Street, Suite 500 Denver, CO 80202 khaight0)wsmtlaw.com

Stephen J. Sullvan Welborn Sullvan Meek & Tooley, P.C.
821 - 17th Street, Suite 500

Denver, CO 80202
ssulli van0)wsmtlaw .com

sl Jane Achey

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