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Moss v. Board of County Commissioners for Boulder County

Court of Appeals of Colorado, Third Division

March 26, 2015

Anita Moss, Robert Westby, and Colorado Advocates for Public Safety, Plaintiffs-Appellants,
Board of County Commissioners for Boulder County, Colorado, Defendant-Appellee.

Boulder County District Court No. 13CV31714 Honorable Andrew Hartman, Judge.

Susan Morath Horner, P.C., Susan Morath Horner, Boulder, Colorado, for Plaintiffs-Appellants.

Benjamin H. Pearlman, County Attorney, Leslie Wright Lacy, Assistant County Attorney, Boulder, Colorado, for Defendant-Appellee.


¶ 1 Plaintiffs, Anita Moss, Robert Westby, and Colorado Advocates for Public Safety, appeal the district court's order granting the motion to dismiss filed by defendants, the Board of County Commissioners of Boulder County, Colorado (County Board). We affirm in part, reverse in part, and remand with directions.

I. Background and Procedural History

¶ 2 This case concerns a county resolution that prohibits firearm discharges in a designated area of Sugar Loaf Mountain, in unincorporated Boulder County. Moss and Westby live and own property in this area. Colorado Advocates for Public Safety is a nonprofit corporation whose mission is to assist in protecting the public from safety hazards, such as those involving firearms. The dispute between plaintiffs and the County Board in this case centers on two issues: (1) whether the resolution applies to bows and arrows and (2) plaintiffs' request to expand the geographic area covered by the resolution.

¶ 3 The County Board adopted Resolution 80-52 in 1980, in response to a citizen petition. It was authorized by a state statute that allows counties to designate unincorporated areas where "it is unlawful for any person to discharge any firearms" (with certain exceptions for law enforcement and short-range activity on confined parcels), after a public hearing and upon a finding that the area has a certain population density. § 30-15-302, C.R.S. 2014. The statute defines "firearm" as "any pistol, revolver, rifle, or other weapon of any description from which any shot, projectile, or bullet may be discharged." § 30-15-301(1), C.R.S. 2014.

¶ 4 The county began enforcing Resolution 80-52 for the first time in 2011, as a result of advocacy by plaintiffs. However, the Boulder County Sheriff publicly took the position that the resolution did not apply to bows and arrows.

¶ 5 Plaintiffs consistently have taken the position that the statutory definition of "firearm" includes bows and arrows, and, therefore, Resolution 80-52 prohibits bow-and-arrow discharges. In a series of e-mails, letters, and petitions during 2012 and 2013, plaintiffs asked the County Board to provide guidance to the sheriff clarifying that bow-and-arrow discharges are prohibited in the designated area and directing him to enforce the resolution accordingly.

¶ 6 Plaintiffs also requested that the County Board hold a public hearing to consider expanding the geographic area covered by Resolution 80-52 due to population growth in the surrounding area and concerns that the existing boundaries were not easily recognizable on the ground. They proposed a new, larger area with boundaries that followed roads and topographical features.

¶ 7 Although plaintiffs' attorney and a county employee corresponded by e-mail about these matters, the County Board did not formally respond to plaintiffs' requests. The county employee stated that the County Board was reluctant to hold a public hearing on the matters raised by plaintiffs, and no public hearing took place. The County Board did not provide the requested guidance to the sheriff regarding whether bow-and-arrow discharges were prohibited.

¶ 8 Plaintiffs filed this action against the County Board in late 2013, asserting claims for declaratory and injunctive relief. The first claim sought a declaratory judgment determining that, as a matter of law, Resolution 80-52 applies to bows and arrows. The second claim sought an injunction directing the County Board to "make prompt and appropriate decision-making" on their petitions in accordance with Colorado's Administrative Procedure Act (APA) and constitutional due process.

¶ 9 The County Board moved to dismiss plaintiffs' declaratory judgment claim under C.R.C.P. 12(b)(5) and their injunctive relief claim under C.R.C.P. 12(b)(1).

¶ 10 After briefing, the district court granted the motion to dismiss in a written order. The court dismissed the declaratory judgment claim on the bases that the claim (1) presented a nonjusticiable political question and (2) was inappropriate for declaratory judgment because a judgment would not terminate the controversy. The court expressly declined to address the interpretive issue of whether bows and arrows constitute "firearms" under section 30-15-301 to -302 and Resolution 80-52. With respect to the injunctive relief claim, the court ruled that it lacked subject matter jurisdiction because the Colorado APA does not apply to the County Board and plaintiffs did not allege a quasi-judicial action by the County Board subject to judicial review. The court further declined to address plaintiffs' constitutional due process arguments on the basis that the claim presented a nonjusticiable political question.

¶ 11 This appeal followed.

II. Declaratory Judgment Claim

¶ 12 Plaintiffs contend that the district court erred in dismissing their declaratory judgment claim. We agree.

¶ 13 We review a district court's ruling on a motion to dismiss under C.R.C.P. 12(b)(5) de novo. Regents of Univ. of Colo. v. Students for Concealed Carry on Campus, LLC, 2012 CO 17, ¶ 11. We must accept all allegations of material fact as true and view the allegations in the complaint in the light most favorable to the plaintiff. Id.

¶ 14 We first address the district court's bases for granting the C.R.C.P. 12(b)(5) motion to dismiss. We then turn to the merits of plaintiffs' claim.

A. Jurisprudential Issues

ΒΆ 15 The district court focused on two jurisprudential issues in dismissing plaintiffs' declaratory judgment claim: the political question doctrine and whether the claim was appropriate for ...

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