Free Status Report - 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 RESPONSE TO THE ISSUES SET OUT IN THE COURT'S ORDER DATED DECEMBER 6, 2007 (Docket No. 51)

Plaintiff Wyrick G. Deane ("Deane"), defendants United States of America, Secretary of Agriculture, and the United States Forest Service (the "United States"), and Pitkin County, Colorado, hereby submit their consolidated responses to the issues set out in the Court's Order dated December 6, 2007. The responses by Deane and the United States are joint responses. Pitkin County provided undersigned counsel with its responses to the issues set out in the Court's order; Pitkin County's responses are set out separately from the responses of Deane and the United States.

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A.1.

Does the Court have jurisdiction under 28 U.S.C. §§ 1346(b) and 2409a to

approve a settlement establishing title to disputed property? Response By United States and Deane: The Court has the authority under 28 U.S.C. §§ 1346(b) and 2409a, and its inherent powers, to approve the settlement of the fifteen quiet title actions at issue. The Quiet Title Act is the exclusive means by which an adverse claimant can challenge the United States' title to real property. See Block v. North Dakota, 461 U.S. 273, 286 (1983). Deane properly filed the actions in federal court under the Quiet Title Act. The only parties claiming an ownership interest in the real property at issue are the United States and Deane. Thus, the proposed settlement adjudicates the disputed title to the real property as between the United States and Deane. The district court has jurisdiction to enforce a settlement agreement entered into by litigants in a case pending before it. Isidor Paiewonsky Assoc., Inc. v. Sharp Properties, Inc., 761 F. Supp. 1231, 1233-34 (D. V.I. 1991) (holding that the Court could enforce the proposed settlement agreement between the owners of two parcels facilitating the creation of mutual easements). Even if Pitkin County had the status of an intervenor in these quiet title actions, which it does not, it could not block a settlement between the United States and Deane. San Juan County, Utah v. United States, 503 F.3d 1163, 1173 (10th Cir. 2007) (citing Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 528-29 (1986) ("It has never been supposed that one party-whether an original party, a party that was joined later, or an intervenor-could preclude 2

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other parties from settling their own disputes and thereby withdrawing from litigation.")). Pitkin County, see below, citing to Johnson v. Lodge #93, 393 F.3d 1096, 1107 (10th Cir. 2004) and Local No. 93, argues that the "settlement may not, however, impose duties or obligations on the County to which it does not consent, nor dispose of valid claims the County has under a statute." As an initial matter, the proposed settlement does not impose any duties or obligations on Pitkin County. Next, Pitkin County's reliance on Johnson v. Lodge and Local No. 93 as support for the proposition that this Court cannot dispose of its claim under the Colorado statute at issue is inapposite. First, Johnson v. Lodge and Local No. 93 involve private parties. Where, as here, the United States is a party, a court proceeding cannot result in the imposition of a coercive sanction against the government when the proceeding infringes on the United States' sovereign immunity. San Juan County, Utah, 503 F.3d at 1175. There is no waiver of sovereign immunity for the application of the Colorado statute, which concerns the subdivision of land to the United States. Moreover, the County's claim under the Colorado statute is not "valid" because the statute by its own terms does not apply and it is preempted by federal law. Response by Pitkin County: The County agrees that the Court has jurisdiction to approve such a settlement. The settlement may not, however, impose duties or obligations on the County to which it does not consent, nor dispose of valid claims the County has under a statute. See, e.g., Johnson v. Lodge #93, 393 F.3d 1096, 1107 (10th Cir. 2004) (citing Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 529-30 (1986)). 3

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A2.

Does the Court have jurisdiction under 28 U.S.C. §§ 1346(b) and

2409a to grant declaratory relief to determine whether the Colorado statute is preempted? Response by United States and Deane: The Court's jurisdiction to grant declaratory relief as to whether the Colorado statute is preempted does not originate from 28 U.S.C. §§ 1346(b) and 2409a. However, this Court may properly exercise jurisdiction over the preemption claim raised by the United States and Deane and grant declaratory relief under 28 U.S.C. § 1331. "It is well-established that the federal courts have jurisdiction under 28 U.S.C. § 1331 over a preemption claim seeking injunctive and declaratory relief." Planned Parenthood v. Sanchez, 403 F.3d 324, 331 (5th Cir. 2005) (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14 (1983)). The issue in this case, whether a state statute is preempted by a federal statute under the Supremacy Clause of the Constitution "presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve." Id. Response by Pitkin County: The County agrees that the Court has jurisdiction to make this determination. For the reasons set forth in its briefing, the County believes federal law does not preempt the state statute.

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A.3.

Does the Court have jurisdiction under 28 U.S.C. §§ 1346(b) and

2409a to determine whether the parties are seeking to evade the applicability of Colo. Rev. Stat. § 30-28-101. Response by United States and Deane: The Court's jurisdiction to determine whether the parties are seeking to evade the applicability of Colo. Rev. Stat. § 30-28-101 does not originate from 28 U.S.C. §§ 1346(b) and 2409a. However, because both the quiet title actions between Deane and the United States, and the preemption claim, are properly before this Court pursuant to 28 U.S.C. §§ 1346(b), 2409a, and 1331, this Court may exercise ancillary jurisdiction to make this determination. Kokkonen v. Guardian Life Insurance Co., 511 U.S. 375, 379 (1994) (holding ancillary jurisdiction properly asserted "to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent" and "to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees"). Response by Pitkin County: The County agrees that the Court has jurisdiction to make this determination. B. If the Court decides that the United States may convey Parcel A under its

authority and the Colorado statute is preempted, why should the Court address whether the parties intended to evade the Colorado statute? Response by United States and Deane: Deane and the United States believe that even if the Colorado statute were deemed applicable, it is preempted by federal law. Reply Brief at 4 - 9 (Docket No. 45); Opening Brief at 5

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9-13 (Docket No. 42). Deane and the United States made the alternative argument that even if the Court found that the statute was not preempted, then they had not violated it because the property transfers do not constitute an unlawful evasion of Part 1 of Article 28, Title 30. If, however, the Court holds that the Colorado statute is preempted, then there is no need for the Court to address this alternative argument or to make findings as to whether the "method of disposition is adopted for the purpose of evading" the Colorado subdivision statute. Response by Pitkin County: No. C. If the Court decides the state statute is preempted, will the United States

grantee have the full right to use parcel A in accordance with the restrictive covenants contemplated by the settlement or may those rights be precluded or impacted by state or local regulation? Response by United States and Deane: Pitkin County has represented that if the parties consummated the settlement, it would assert that the creation of Parcel A was an illegal subdivision in violation of Colo. Rev. Stat. § 30-28-101 and sue Deane to force him to raze the existing cabin. If, however, the Court holds that the state statute either does not apply or is preempted, then Pitkin County cannot argue that Parcel A, the 2.2 acre parcel that will be conveyed from the United States to Deane, is an illegally created parcel. Thus, Deane should be able to have the full right to use parcel A in accordance with the restrictive covenants contemplated by the settlement. Deane agrees that state and local regulations will apply to the extent he seeks to construct 6

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new improvements on the parcel. However, the deed restrictions that Deane is agreeing to ensure that the parcel will not be developed and that the character of Parcel A will remain substantially the same as its current state. Response by Pitkin County: If the Court so rules, Parcel "A" will not be considered an illegal subdivision. It will, however, continue to be subject to all other land-use provisions of state and local law, such as applicable zoning. D. Is an evidentiary hearing or trial necessary?

Response by United States and Deane: "The purpose of an evidentiary hearing is to resolve conflicting evidence." Anderson v. Attorney General of Kansas, 425 F.3d 853, 860 (10th Cir. 2005). Deane and the United States do not believe that either an evidentiary hearing or a trial is necessary for three reasons. First, the Colorado statute, by its own terms, does not apply to the United States. Second, even if applicable, it is preempted by federal law. These first two issues are legal issues; therefore, if the Court rules on either of those two grounds, then an evidentiary hearing is not necessary. Third, were the Court to find that the Colorado statute applies to the United States and is not preempted by federal law, then the undisputed facts before the Court establish that the settlement proposed by Deane and the United States was not "adopted for the purpose of evading" the Colorado statute on subdivisions. There is simply no conflicting evidence. Pitkin County has failed to raise even one fact that would support even an inference that the settlement was adopted for the purpose of evading the Colorado statute on subidivisions. The evidence 7

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before the Court establishes that the sole purpose and intent of the proposed property transfers -particularly the creation and conveyance of Parcel A to Deane -- is to compromise and settle federal litigation. Because there is no conflicting evidence, an evidentiary hearing is not necessary. Response by Pitkin County: Yes. As discussed in its briefing, the County has had no opportunity to conduct discovery in this case, and its claim herein turns on an issue of fact. Under § 30-28-101(10)(c)(ii), the fundamental issue the Court must determine is whether or not the settling parties are seeking this Court's approval of their settlement "for the purpose" of evading the state and local land use laws embodied and authorized by Part 1 of Article 28 of Title 30, C.R.S. As set forth in the County's briefing, an issue of fact exists concerning this question and resolving the County's statutory interest on the basis of the settling parties' tendentious affidavits is inappropriate. E. decided? Response by United States and Deane: The only factual issue to be decided is whether the terms of the settlement between the United States and Deane were "adopted for the purpose of evading" the Colorado subdivision statute. Response by Pitkin County: Whether or not the settling parties are seeking this Court's approval of their settlement "for the purpose" of evading the state and local land use laws embodied in and authorized by Part 8 If an evidentiary hearing is necessary, what factual issues need to be

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1 of Article 28 of Title 30, C.R.S. Respectfully submitted this 14th day of December, 2007. WELBORN SULLIVAN MECK & TOOLEY PC s/Kathryn Haight Kathryn Haight 821 17th Street, #500 Denver, CO 80202 Tel. 303-830-2500 Fax 303-832-2366 [email protected] for Plaintiffs TROY A. EID UNITED STATES ATTORNEY s/Roxane J. Perruso Roxane J. Perruso Assistant U.S. Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Tel. 303-454-0127 / Fax 303-454-0404 [email protected] for United States of America

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on December 14, 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: Kathryn Haight [email protected] John M. Ely, County Attorney [email protected] and Christopher G. Seldin, Pitkin County Attorney's Office [email protected] Pitkin County Attorney's Office 530 E. Main Street, Suite 302 Aspen, Colorado 81611 and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated above the nonparticipant's name: Via e-mail Helena Jones-Siddle, Esq. Office of the General Counsel USFS-USDA 740 Simms Street, Room 309 Golden, CO 80401 [email protected] s/Roxane J. Perruso Roxane J. Perruso

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