COLORADO SUPREME COURT

2 East 14th Avenue

Denver, CO 80203
Court of Appeals Case No. 2013CA1931
Opinion by Judge Dunn
Judge Hawthorne concurs, Judge Dailey specially concurs
Appeal from the District Court of Denver County
Judge Robert McGahey
Case No. 11CV5226
Petitioner: RAGS OVER THE ARKANSAS RIVER, INC.,
a Colorado not-for-profit corporation;
v.
Respondents: COLORADO PARKS AND WILDLIFE,
f/k/a COLORADO BOARD OF PARKS AND
OUTDOOR RECREATION; COLORADO DIVISION
OF PARKS AND WILDLIFE, f/k/a COLORADO
DIVISION OF PARKS AND OUTDOOR
RECREATION; and COLORADO DEPARTMENT OF
NATURAL RESOURCES;
Intervenor: OVER THE RIVER CORPORATION, a
Colorado corporation.
Geoffrey C. Klingsporn, No. 38997
Richard Kirk Mueller, No. 16746
Constance L. Rogers, No. 31679
Mave A. Gasaway, No. 42183
DAVIS GRAHAM & STUBBS LLP
1550 Seventeenth St. Suite 500
Denver, CO 80202
Tel:
(303) 892-9400
Fax:
(303) 893-1379
E-mail: [email protected]
[email protected]
[email protected]
[email protected]

COURT USE ONLY

Case No.

Attorneys for Petitioner Rags Over the Arkansas River, Inc.

PETITION FOR CERTIORARI

3680300.7

CERTIFICATE OF COMPLIANCE
I hereby certify that this petition complies with all applicable requirements
of C.A.R. 28 and 32, including all formatting requirements set forth in the
appellate rules. Specifically, the undersigned certifies that it complies with
C.A.R. 53(a) because it contains 3,549 words.

/s/ Geoffrey C. Klingsporn

Geoffrey C. Klingsporn, No. 38,997

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .............................................................................. ii

ISSUES PRESENTED FOR REVIEW ............................................................... 1
OPINION BELOW ............................................................................................. 1
JURISDICTION ................................................................................................. 1
STATEMENT OF THE CASE ........................................................................... 2
A.

Statement of Relevant Facts....................................................................... 2

B.

Procedural History ...................................................................................... 5

ARGUMENT...................................................................................................... 6
I.

THIS COURT SHOULD CORRECT THE COURT OF APPEALS

AND CLARIFY THE PROPER USE OF HARMLESS ERROR
DOCTRINE IN ADMINISTRATIVE LAW. ............................................ 7

II.

THE COURT OF APPEALS DECISION PERMITS STATE

AGENCIES TO ABDICATE THEIR RESPONSIBILITIES AND
DEFER TO FEDERAL AGENCIES APPLYING FEDERAL LAW
AND FEDERAL STANDARDS. ........................................................... 11

CONCLUSION ................................................................................................ 16

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TABLE OF AUTHORITIES
Page

Cases
Cal. Wilderness Coal. v. U.S. Dept of Energy,
631 F.3d 1072 (9th Cir. 2011) ............................................................................... 8
Chostner v. Colo. Water Quality Control Commn,
2013 COA 111 ...................................................................................................15
Colo. Mun. League v. Mountain States Tel. & Tel. Co.,
759 P.2d 40 (Colo. 1988) .....................................................................................12
Landers v. Indus. Commn,
721 P.2d 1227 (Colo. App. 1986).......................................................................... 8
Nat. Res. Def. Council v. U.S. Forest Serv.,
421 F.3d 797 (9th Cir. 2005)................................................................................. 8
Natl Ski Areas Assn. v. U.S. Forest Serv.,
910 F. Supp. 2d 1269 (D. Colo. 2012)................................................................... 8
Nw. Res. Info. Ctr. v. Nw. Power & Conservation Council,
730 F.3d 1008 (9th Cir. 2013) ............................................................................... 8
Shinseki v. Sanders,
556 U.S. 396 (2009) ............................................................................................. 9
Silverton Snowmobile Club v. U.S. Forest Serv.,
433 F.3d 772 (10th Cir. 2006) ............................................................................... 8

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Statutes and Rules

13-2-127, C.R.S. (2014) ......................................................................................... 1
13-4-108, C.R.S. (2014) ......................................................................................... 1
24-4-106(7), C.R.S. (2014) .............................................................................. 10, 12
2 C.C.R. 405-1:101 ............................................................................................... 2
2 C.C.R. 405-1:703 ............................................................................................... 2
2 C.C.R. 405-7:703(2) ..........................................................................................14
2 C.C.R. 405-7:703(3) .................................................................................... 14, 15
C.A.R. 49(a)(2) & (4) ............................................................................................... 7
C.A.R. 51 ................................................................................................................ 1
C.A.R. 52(b)(3) ....................................................................................................... 1

ISSUES PRESENTED FOR REVIEW

1.

Where an agency arbitrarily and capriciously violated its own regulations,

did the court of appeals err by upholding the agencys action based on speculation
that the result would have been the same if the regulations had been followed?
2.

Where the Parks Boards approval of the Over the River project was

expressly conditioned on the terms and conditions of a pending federal

Environmental Impact Statement (EIS), did the court of appeals err by upholding
the Parks Boards deference to a federal decision, even though the final EIS did not
yet exist and the federal decision would be based on federal regulations and standards
rather than more stringent Colorado state permit requirements?
OPINION BELOW
The opinion of the court of appeals, as modified on denial of rehearing, was
published as 2015 COA 11M, and is attached as Appendix 1 (the opinion is cited
hereafter as Op.).
JURISDICTION
The court of appeals issued its opinion on February 12, 2015, and denied the
petition for rehearing on March 26, 2015. This Court has jurisdiction under
13-2-127 and 13-4-108, C.R.S. (2014), because this petition is filed within the time
prescribed by C.A.R. 51 and 52(b)(3).

STATEMENT OF THE CASE

A.

Statement of Relevant Facts

In 1996, the artists Christo and Jeanne-Claude approached the Colorado

Division of Parks and Outdoor Recreation (Parks) with a plan to drape 5.9 miles of
translucent fabric panels across the Arkansas River, along approximately 50 miles of
the Bighorn Sheep Canyon between Caon City and Salida.1 The artists dubbed this
installation Over the River, and formed Over the River Corporation (OTR) as a
special-purpose entity. In early 1997, OTR formally applied to Parks for a special
activity permit under 2 C.C.R. 405-1:101 and 405-1:703. For the next fourteen
years, Parks, its Board, and OTR considered Over the River to be a special
activity under the agencys permit regulations, and proceeded according to those
regulations.
In addition, Parks became a cooperating agency with the federal Bureau of
Land Management (BLM), to stay apprised of the federal environmental review
process. BLM began to prepare an Environmental Impact Statement to inform the
BLMs decision regarding its separate, federal authorization for Over the River.
Throughout the permitting history of the Project, the Board consistently and
1 Over

the River will, in the words of a previous Board resolution, leave

permanent, unnatural scars on the environment [and] the impacts to the wildlife who
live along this corridor are not mitigable, . . . and the Project seriously compromises
our ability to assure a quality, safe experience for the public. S.R. CPW000502.
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repeatedly stated its intent to wait until all Project impacts were known and mitigation
plans finalized through BLM before making its decision on a state permit.
All this changed in 2011. After new legislation was enacted to merge Parks
with another agency, the Division of Wildlife, the Board abandoned its earlier
determination to issue a special activity permit. Just prior to the merger, the
Division of Wildlife publicly announced its opposition to the Project, stating that
impacts to wildlife could not be mitigated. Instead of following the special activity
permit regulations, the Board hurriedly negotiated a Memorandum of Agreement
with OTR (the Agreement). In its final act before being subsumed into the new
Board of Parks and Wildlife, the Board approved the Agreement, and thus the
Project.
Rushing to finalize the Agreement, the Board also discarded its longstanding
plan to wait for the final EIS. Instead, the Agreement approved Over the River
contingent upon OTRs compliance with terms and conditions to be established by
BLM at some point in the future.
ROARa citizens group formed to preserve and protect the headwaters of
the Arkansas River, the Bighorn Sheep Canyon, and their inhabitantsfiled suit to
challenge the Boards actions. The district court dismissed the suit, and ROAR
appealed.

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In a 2-1 opinion, the court of appeals agreed with ROAR that the Boards
refusal to follow its own regulations was arbitrary and capricious. The majority
opinion acknowledged that the agencys impending merger drove the Boards
unlawful decision:
[T]he Parks Division and the Colorado Wildlife Commission were
slated to merge in the summer of 2011. Op. 9.
In May, shortly before the merger, the Wildlife Commission notified
[Parks] that it opposed the Project Id.
Several days after the Wildlife Commission voiced its opposition
OTR presented a draft cooperative agreement and Parks began
negotiating approval of the Project through the cooperative agreement
proposed by OTR, rather than issuing a special activities permit under its
regulations. Op. 10.
A week before the Parks Division merged with the Wildlife
Commission, the Board voted to authorize the Project through [the
Agreement]. Op. 11.
Nevertheless, the court of appeals upheld the Boards decision, concluding that
the Boards actions were harmless. The court of appeals accepted Parks post hoc
reasoning that even had the special activities permitting regulation been followed, a
permit would have issued and the outcome would have been the same.
Op. 70-71. The court of appeals determined that the Boards approval of the
Project was harmless, despite the lack of formal findings required by Board regulation,
or actual knowledge of what conditions would be placed on Over the River in the

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final EIS, because the Board was aware of mitigation conditions the Bureau would
likely include in the final [EIS]. Id. 62.
B.

Procedural History
ROAR filed its Complaint against Parks, the Board, and the Division of

Natural Resources on July 22, 2011, seeking judicial review of the Boards approval of
the Agreement, and declaratory and injunctive relief against implementation of the
Project. OTR intervened to defend the Agreement.
After the appeal was fully briefed, the district court sua sponte issued an Order
Requesting Further Information, inquiring whether the Agreement was under review
by the federal Interior Board of Land Appeals. Parks responded (correctly) that it was
notrather, [t]he IBLA and this Court are reviewing distinct final agency actions in
distinct jurisdictions.
On September 5, 2013, the district court entered its order affirming the Boards
decision and dismissing ROARs Complaint. The district court upheld the Boards
decision to change[] course and negotiate the Agreement as entitled to substantial
deference. ROAR timely appealed. The court of appeals issued its opinion
upholding the Boards decision on February 12, 2015. ROAR filed a petition for
rehearing, which was denied on March 26, 2015. On the same date, the court of
appeals issued a modified opinion, adding a footnote and correcting a sentence in the

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original opinion that had mistakenly attributed to ROAR an argument actually put
forth by Parks. See Appendix 1.
ARGUMENT
This case involves fundamental tenets of administrative law. Due process
requires that an agency strictly adhere to its own properly promulgated procedures,
and a reviewing court is likewise required to strike down actions that violate those
procedures. Here, the court of appeals found that the Parks Board abandoned its
own permitting regulations in order to authorize Over the River through the
Agreement, and properly concluded that this decision was unlawfully arbitrary and
capricious.
The error of the court of appeals lies in its conclusion that ROAR, and the
public, suffered no prejudice when the Board short-circuited its own regulations. To
do so, the court of appeals misapplied the harmless error doctrine when it improperly
focused on the end result of the Agreement rather than the prejudice arising from the
procedural violations themselves. This Court should grant certiorari to clearly
express, for the first time, the proper role of harmless error analysis in
administrative appeals.
The court of appeals also erred by approving the Boards reliance on a federal
EIS, and deference to federal terms and conditions, that did not yet exist. In effect,

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the court of appeals ratified the Boards abdication of its state-law responsibility to
evaluate Over the River, based on the unsupported conclusion that whatever
conditions the federal government would require would necessarily be sufficient to
comply with state law. By allowing state substantive and procedural requirements to
be subsumed into a future federal decision, the court of appeals decision endangers
the rights protected by Colorados Administrative Procedure Act, and also threatens
to undermine the proper functioning of our federalist system. This Court should take
the opportunity to reject the court of appeals suggestion that a state agency may
delegate its state-law duties to a federal agency, or that federal requirements may stand
in place of state regulations.
I.

THIS COURT SHOULD CORRECT THE COURT OF APPEALS

AND CLARIFY THE PROPER USE OF HARMLESS ERROR
DOCTRINE IN ADMINISTRATIVE LAW.
This Court has never before clearly defined the parameters of harmless error in

the context of administrative law or Colorados Administrative Procedure Act

(APA). An opinion clarifying the proper role of harmless error in agency appeals
will prevent future courts from repeating the mistake made by the court of appeals,
and will prevent agencies from defending arbitrary and capricious acts by arguing, post
hoc, we would have made the same decision anyway. For those reasons, a writ of
certiorari is warranted here. See C.A.R. 49(a)(2) & (4).

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Courts elsewhere have repeatedly warned that [t]he role of harmless error in
the context of agency review is constrained. Silverton Snowmobile Club v. U.S. Forest
Serv., 433 F.3d 772, 786 n.6 (10th Cir. 2006) (quoting Nat. Res. Def. Council v. U.S.
Forest Serv., 421 F.3d 797, 807 (9th Cir. 2005)). Harmless error analysis in
administrative law is perilous: because harmless error is more readily abused there
than in the civil or criminal context, the reviewing court must exercise great caution
in applying the harmless error rule. Nw. Res. Info. Ctr. v. Nw. Power & Conservation
Council, 730 F.3d 1008, 1020-21 (9th Cir. 2013) (quoting Cal. Wilderness Coal. v. U.S.
Dept of Energy, 631 F.3d 1072, 1091 (9th Cir. 2011)) (internal quotations and
alterations omitted); see Natl Ski Areas Assn. v. U.S. Forest Serv., 910 F. Supp. 2d 1269,
1277 (D. Colo. 2012) (same).
Most importantly, and most relevant here, a court reviewing agency action must
focus on the process as well as the result because an agency could always claim
that it would have adopted the same rule even if it had complied with [proper]
procedures. Cal. Wilderness Coal., 631 F.3d at 1090 (emphasis added); Natl Ski Areas,
910 F. Supp. 2d at 1277-78. This comports with Colorado precedent. See Landers v.
Indus. Commn, 721 P.2d 1227, 1230 (Colo. App. 1986) (rejecting agencys harmless
error defense because [r]egardless of the merits of [his] claim [plaintiff] was

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entitled to hearing and review procedures conducted in accordance with the

applicable statutory procedures).
This case provides an exceptionally clear example of the importance of proper
procedure, and the prejudice that may arise when regulations are thwarted. Here, the
Boards unlawful acts were finalized only [a] week before the Parks Division merged
with the Wildlife Commission, an agency that had already voiced its opposition to
Christos project. Op. 9-11. If the Board had not abandoned its own regulations
to rush through the Agreement before the merger, the outcome literally could not
have been the same because the permit decision would have been made by an
entirely different body, applying state law rather than deferring to less-stringent
federal standards. The decision would have been made by an entirely new agency,
with a reconstituted Board consisting mostly of representatives from the former
Division of Wildlife, already on record as opposed to the Project. The prejudice is
clear. See Shinseki v. Sanders, 556 U.S. 396, 411 (2009) (when determining harmless
error, courts should be informed by an awareness of what body would have made
the decision, absent error); see also id. (Often the circumstances of the case will make
clear to the appellate judge that the [error] was harmful and nothing further need be
said.).

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Overlooking the timing and sequence of events leading to the Agreement, and
focusing instead on the end result, the court of appeals concluded that [n]othing in
the administrative record supports the conclusion that the decision would have been
different. Op. 67. This is not the standard under the APA. Agency decisions
must be supported by substantial evidence, 24-4-106(7), C.R.S. (2014), not the
mere absence of contrary evidence. See also Op. 66 n.11 (relying on absence of
express findings by the Board that the Project would violate permit requirements).2
Standing the APAs requirement on its head, the court of appeals searched for
evidence to support a decision the Board never made. Finding none, it concluded
that the unlawful decision the Board actually did make was harmless. This is not the
law.
Under the APA, reviewing courts must reverse an agency action upon a finding
that it is arbitrary or capricious, unsupported by substantial evidence in the record, or
otherwise contrary to law. 24-4-106(7), C.R.S. (2014) (the court shall hold unlawful
and set aside the agency action). The APA, as its name implies, guarantees proper
2 This

footnote, which the court of appeals added to its opinion upon denial of
reconsideration, only amplifies the perils of the courts logic. Having determined that
the Board unlawfully avoided its special activity permitting process, the court then
relies on the absence of the very findings that would have come out of that process.
Put differently, there are no express findings by the Board under the special activity
regulations precisely because the Board arbitrarily and capriciously refused to follow
those regulations. This hole in the record is a reason to reverse the agencys action
not to affirm it.
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procedure, not a specific result. This ensures that citizens fundamental due process
rights are protected. See Op. 26 (requiring an agency to follow its own regulations
comports with principles of due process). But here, the court of appeals concluded
that the arbitrary and capricious procedural violations by the agency in this case were
harmless, solely because the outcome would have been the same. Op. 70. This
Court should grant certiorari to correct the court of appeals erroneous focus on
results, and clarify the proper role of harmless error in administrative appeals.
II.

THE COURT OF APPEALS DECISION PERMITS STATE

AGENCIES TO ABDICATE THEIR RESPONSIBILITIES AND
DEFER TO FEDERAL AGENCIES APPLYING FEDERAL LAW
AND FEDERAL STANDARDS.
This Court should take the opportunity to unequivocally reject the court of

appeals suggestion that it is constitutionally harmless for an agency to replace

specific findings required under those regulations with approval based on its being
vaguely aware of what conditions a wholly separate, federal agency would likely
include in a plan that does not yet even exist. Op. 62. Simply put, this Court
should make it clear that state agencies may not defer or delegate their state-law duties
to federal agencies operating under federal standards and regulations.
As discussed above, the Board agreed to permit Over the River contingent
on the projects compliance with the terms and conditions in the BLMs final EIS and
decision. But when the Board voted to approve the Agreement on June 23, 2011, no

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Board member could have reviewed or considered the Final EISbecause it had not
yet been published, or provided to the Board. In other words, the Board did not
know what the BLMs decision on mitigation, terms and conditions would be, but the
Board prospectively adopted them as sufficient, without question, sight unseen.
ROAR made two arguments that the Boards reliance on unknown federal
mitigation requirements was arbitrary and capricious. First, ROAR argued that any
determination based on conditions that are not yet in the record because they do not
yet exist is arbitrary and capricious as a matter of law. See 24-4-106(7), C.R.S. (2014)
(Agency decisions must be supported by substantial evidence.); Colo. Mun. League v.
Mountain States Tel. & Tel. Co., 759 P.2d 40, 44 (Colo. 1988) (discussing substantialevidence standard). The court of appeals rejected this argument, citing out-of-state
cases approving very different agency actions under specific federal statutes other
than the APA. See Op. 60-62.
Second, ROAR argued that BLMs terms and conditions were not only
unknown, they were to be determined under laws and standards different from those
required by state law and Parks own permitting regulations. The Board knew that its
special activity regulations contain specific standards, and that these requirements are
different from the BLMs undue degradation standard. See Op. 56 (discussing
special activity requirements). Indeed, the Board conceded in the district court that

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the federal and state permits at issue here were distinct final agency actions in distinct
jurisdictions.
The court of appeals failed to address the substance of ROARs second
argument, or the difference between federal and state regulations. Instead, it
concluded that reliance on the final EIS was appropriate merely because the Board
was aware of mitigation conditions the Bureau would likely include in the final
[EIS],3 and considered more factors than required by its regulation. Op. 61-62.
This is incorrect. The Board did not approve Over the River conditioned on
federal requirements in addition to the Boards own independent permitting decision;
it made this conditional approval instead of following its own permitting regulations,
or evaluating whether Over the River would meet the more stringent Colorado
permit requirements. The Board never made any findings regarding its purported
understanding of the likely federal mitigation conditions, much less analyze the

3 The

court of appeals cited no record evidence in support of this contention, and

ROAR is aware of none. In the briefing below, even Parks could identify only a
single, conclusory sentence in the record: State Parks staff has participated with the
BLM throughout the NEPA process and has reason to believe the ROD and FEIS
will adequately and reasonably require the mitigation of all the environmental impacts
associated with the OTR Project, if and when approved. S.R. CPW0001334-35.
Nowhere does the record state what those mitigation requirements would be; analyze
them in terms of state permit requirements; or reveal what gave agency staff reason
to believe in their adequacy.
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relationship between its own permit regulations and the requirements that would
underlie the ultimate federal decision.
In fact, the record shows that the Project would not have survived the proper
permitting procedure under 2 C.C.R. 405-7:703(3) (Rule 703). The plain language
of Rule 703(3) requires that a permit shall be denied for a special activity that would,
among other things, have significant adverse impact on park values, pose significant
threats to the health, safety or welfare of park visitors or other person[s], [or] be
inconsistent with area management plans. See Op. 56 (quoting Rule 703(3))
(emphasis added) (alterations in original). Based on this unambiguous language,
ROAR argued that had Parks properly followed its own regulations, the Board would
have had no choice but to deny the permit.4 While citing it as a requirement in
finding the Boards actions arbitrary and capricious, under its harmless error analysis
the court of appeals completely overlooked Rule 703(3), relying only upon the
preceding subsection, 703(2), which lists factors that must be considered in any
permitting decision. As a result, the court of appeals incorrectly interpreted Rule 703

Notably, Parks never disputed ROARs interpretation of Rule 703(3). It argued only
that the Board was not required to permit the Project as a special activity.
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to require only a balancing of factors, and ignoring the stringent substantive

requirements of Rule 703(3).5 Op. 57-66.
This decision has ramifications reaching far beyond this case. As Parks itself
argued below, it is increasingly common for state and federal agencies to cooperate on
large-scale, multi-jurisdictional projects in Colorado. See, e.g. Chostner v. Colo. Water
Quality Control Commn, 2013 COA 111, 13-15 (describing state agencys conditional
approval based on full knowledge and analysis of the [BLM]s final environmental
impact statement and other agencies mitigation plans). The court of appeals
decision in this case would allow state agencies simply to defer to their federal
counterparts, or to lead agencies, without fulfilling their own independent statutory
dutiesand argue later that the federal requirements were close enough to, or even
greater than, the state regulations. Such excessive deference impinges not only on
issues of federalism but also, again, of those individual rights that administrative
procedure is meant to protect. See Op. 39 ([D]ue process requires the agency to
strictly adhere to its regulations. (citing cases)).

5 The

only substantive analysis of the Project in the record is the BLMs draft EIS,
which concluded that the Project would have significant, or moderate to significant
impacts to numerous resources that are identified as State Parks resources in the
relevant State Park management plan. Draft EIS at 2-77 to 2-86.
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CONCLUSION
The Boards actions, and the court of appeals decision upholding them,
threaten more than the natural beauty of the Arkansas Headwaters, or the citizens and
wildlife living there. The harm is to the Constitution, to the individuals guarantee
that state agencies will follow the procedures set forth in their regulations, and
Colorados role as an independent sovereign in our federal system. This Court should
grant certiorari to clarify that when an agency arbitrarily and capriciously ignores its
own regulations, the error is not harmless. The Court should further clarify that an
agency may not abdicate its duty to make a determination in favor of a determination
with one to be made in the future, by a federal agency operating under different
standards.
Dated this 23rd day of April, 2015.

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Respectfully submitted,
DAVIS GRAHAM & STUBBS LLP

/s/ Geoffrey C. Klingsporn

Richard Kirk Mueller, No. 16746
Constance L. Rogers, No. 31679
Mave A. Gasaway, No. 42183
Geoffrey C. Klingsporn, No. 38997
1550 Seventeenth Street, Suite 500
Denver, Colorado 80202
Phone: (303) 892-9400
Attorneys for Petitioner Rags Over the
Arkansas River, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing PETITION FOR
CERTIORARI was filed and served by via the ICCES e-file system or via U.S. Mail,
postage prepaid, on the 23rd day of April, 2015, on the following:
Timothy J. Monahan
First Assistant Attorney General
Elaine J. Wizzard
Assistant Attorney General
State and Trust Lands Unit
Natural Resources & Environment
1525 Sherman Street, 7th Floor
Denver, Colorado 80203
Counsel for Defendant-Appellees
John E. Putnam
Kaplan Kirsch & Rockwell LLP
1675 Broadway, Suite 2300
Denver, Colorado 80202
Counsel for Intervenor

/s/ Paige Finnell