United States District Court, D. Colorado
A. BRIMMER United States District Judge
matter is before the Court on Defendants' Motion to
Dismiss Second Amended Complaint [Docket No. 40]. The Court
has jurisdiction pursuant to 28 U.S.C. § 1331.
case arises out of claims for income tax credits for
conservation easements pursuant to Colo. Rev. Stat. §
39-22-522. In Colorado, a taxpayer is allowed to take a state
income tax credit for a qualifying conservation easement
created upon real property that is donated to a governmental
entity or charitable organization. Colo. Rev. Stat. §
39-22-522(2). A conservation easement is a permanent
restriction that runs with the land for the purpose of
protecting and preserving the land in a predominantly
natural, scenic, or open condition. See Colo. Rev.
Stat. §§ 38-30.5-101 et seq. (establishing
the purposes and requirements for conservation easements);
Kowalchik v. Brohl, 277 P.3d 885, 886 (Colo.App.
the conservation tax credit program, a landowner eligible for
an income tax credit may be an individual, a partnership, a
corporation, or any other entity. Colo. Rev. Stat. §
39-22-522(1). A qualifying landowner has the option of
assigning to transferees all or any portion of the tax credit
generated by any land donation. Colo. Rev. Stat. §
39-22-522(7). The donor landowner, however, may only claim
one such tax credit per year. Colo. Rev. Stat. §
2011, the Colorado General Assembly enacted new procedures to
resolve disputes under the conservation easement tax credit
program. 2011 Colo. Legis. Serv. Ch. 193 (H.B. 11-1300)
(West). Under the 2011 procedures, the Colorado
Department of Revenue (“DOR”) held previously
issued tax credits procedurally invalid or rejected
appraisals of the values of previously donated easements.
Docket No. 36 at 3, ¶ 5.
is a Colorado non-profit organization with one of its
purposes being to “[p]rotect landowners' rights,
the public interests, and sound conservation policies in
Colorado.” Docket No. 36 at 5, ¶ 10.
“Many” of plaintiff's members have had their
conservation easement tax credits challenged under the
procedures enacted in 2011. Id., ¶ 11; see
also id. at 3, ¶ 6 (“nearly all”
plaintiff's members “are affected donors of
second amended complaint, plaintiff asserts five claims for
relief. First, plaintiff brings a claim for violations of the
Fourteenth Amendment right to equal protection based on the
allegation that “Defendants have applied a different
set of rules to some taxpayers than they have to
others.” Docket No. 36 at 14, ¶ 44. Second,
plaintiff asserts a § 1983 claim for violations of its
members' due process rights by defendants in connection
with the application of the DOR's adjudication of
conservation easement tax credits. Id. at 15-17,
¶¶ 50-57. Third, plaintiff alleges that
defendants' actions were a violation of the takings
clauses of the Fifth Amendment to the U.S. Constitution and
Section Fifteen of the Colorado Constitution. Id. at
17-19, ¶¶ 58-65. Fourth, plaintiff alleges that
defendants' actions were a violation of the prohibition
on ex post facto laws and laws impairing the obligations of
contracts in Section Eleven of the Colorado Constitution.
Id. at 19-20, ¶¶ 66-71. Finally, plaintiff
brings a claim for declaratory relief prohibiting defendants
from enforcing the revised procedures implemented in 2011
with respect to donations made prior to the legislative
changes. Id. at 20-21, ¶¶
23, 2016, defendants filed their motion to dismiss. Docket
No. 40. Defendants argue that (1) plaintiff's claims are
barred by the Eleventh Amendment, (2) plaintiff lacks
standing, (3) plaintiff's claims are barred by the Tax
Injunction Act, 28 U.S.C. § 1341, (4) plaintiff's
claims are barred by the doctrine of comity, and (5)
plaintiff's claims should be dismissed under Rule
12(b)(6) for failure to state a claim. Id.
bears the burden of establishing standing. Colorado
Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 544
(10th Cir. 2016) (citing Raines v. Byrd, 521 U.S.
811, 818 (1997)). To carry this burden, plaintiff must show
(1) an injury in fact, (2) a sufficient causal connection
between the injury and the conduct complained of, and (3) a
likelihood that the injury will be redressed by a favorable
decision. Id. at 543; Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). As an
organization with members, plaintiff can establish standing
either in its own right or on behalf of its members.
Sierra Club v. Morton, 405 U.S. 727, 739 (1972).
Plaintiff's Standing in Its Own Right
first argues that it has standing based on its purpose
“to protect landowners who are seeking to lawfully
participate in the conservation easement program.”
Docket No. 46 at 14 (quoting Docket No. 36 at 5, ¶ 11).
Plaintiff additionally claims that it “has a
demonstrable interest in protecting the interests of its
members and other state citizen property holders considering
use of the conservation easement scheme as a way to protect
and preserve land in the state.” Id. at 14-15.
interests and purposes do not show injury in fact.
“[T]he ‘injury in fact' test requires more
than an injury to a cognizable interest. It requires that the
party seeking review be himself among the injured.”
Sierra Club, 405 U.S. at 734-35; see also
Lujan, 504 U.S. at 573-74 (“We have consistently
held that a plaintiff raising only a generally available
grievance about government-claiming only harm to his and
every citizen's interest in proper application of the
Constitution and laws, and seeking ...