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Race v. Board of Commissioners of County of Lake

United States District Court, D. Colorado

August 4, 2017



          William J. Martínez, Judge

         Before the Court are two summary judgment motions. The first motion was filed by Defendants Bruce Hix (“Hix”) and Dolores Semsack (“Semsack”), who at all times relevant to this lawsuit were members of the Lake County Board of Commissioners. (ECF No. 84.) The second motion was filed by Defendant Board of Commissioners itself, and by Defendants James Moyer and Moyer Ranch, LLC. (ECF No. 85.) For clarity, the Court will refer to the Board of Commissioners, in its capacity as a Defendant here, as “the County.” At times the County's interests align with those of Hix and Semsack, and in those circumstances the Court will refer to all three of them together as “the County Defendants.” The Court will refer to James Moyer and Moyer Ranch, LLC, collectively as “Moyer.” Finally, when necessary, the County Defendants and Moyer will be referred to collectively as “Defendants.” For the reasons explained below, the Court holds that Plaintiffs waited too long to bring the key claim at issue here-an inverse condemnation claim-and all of their claims against the County Defendants therefore fail, save for a state-law claim under an open meetings statute. In particular, the 42 U.S.C. § 1983 claim, on which this Court's jurisdiction is based, fails. Given that only state-law claims remain (the open meetings claim and other claims against private citizens), the Court exercises its discretion under 28 U.S.C. § 1367(c) to remand the remainder of this case to Lake County District Court.

         I. FACTS

         The following facts are undisputed unless attributed to a party.[1]

         A. Plaintiffs' Property and the Road

         Roughly five miles southeast of Leadville, Colorado, is a geographic promontory designated “Long and Derry Hill.” The Hill is part of a long ridge that descends mostly westward from the summit of Mount Sheridan into the Arkansas River Valley. To the north of the ridge is Iowa Gulch and to the south is Empire Gulch.

         In the late 1800s, the United States granted numerous mining claims on Long and Derry Hill to private parties. (ECF No. 85 at 5, ¶ 12.) In 1999, Plaintiffs bought one of these mining claims, known as the “California Rose, ” on the southern face of Long and Derry Hill. (ECF No. 94-1 ¶ 4.) Plaintiffs have since purchased full or partial interests in other mining claims on the southern face. (Id. ¶ 6.) In the following exhibit prepared by a surveyor Plaintiffs hired for purposes of this lawsuit, Plaintiffs' claims are shown as red-shaded regions:

         (IMAGE OMITTED)

         (ECF No. 94-2.)

         Anyone traveling from the direction of Leadville who wishes to reach the southern face of Long and Derry Hill, including Plaintiffs, would generally travel eastward on Lake County Road 2 into Iowa Gulch (just north of the Hill), and from there take a short trip down Lake County Road 6A (a dirt road) until the turnoff for Lake County Road 6B (also a dirt road). Road 6B ascends, partly by switchbacks, up the north face of the western portion of ridge and eventually reaches a meadow at the crest of the ridge. In the exhibit reproduced above, Roads 6A and 6B are visible just below the Legend; the meadow at the crest of the ridge is just off the left side of the photograph.

         At the meadow, the road branches in several directions, including eastward along the crest of the ridge. The eastward branch is the crux of this dispute, and the parties do not agree on its name. As will become clear below, the County insists that it is part of Road 6B. Plaintiffs deny this and refer to it simply as the “Upper Long and Derry Hill Road.” For purposes of this Order, the Court will refer to it as the “Road.” The Road is visible in the exhibit reproduced above as the dirt road that begins on the left edge, a little below the horizontal center of the photograph, and snakes its way through trees in a northeasterly direction until it turns more-or-less straight eastward along the ridge towards the Houston Claim. At the Houston Claim, the Road turns southeast and starts to descend the south face of the ridge, but gradually bends eastward again, passing through some of Plaintiffs' claims and through stands of trees, eventually reaching the California Rose Claim. Although difficult to see in the above exhibit, the Road continues eastward from the California Rose Claim across the meadow, until it reaches the gap between two other stands of trees, which gap marks the beginning of United States Forest Service land. That last segment of the Road is depicted in the following Google Earth photograph submitted-and annotated-by Defendants:

         (IMAGE OMITTED)

         (ECF No. 85-37.)

         B. The 2006 Road Action

         In 2000, Plaintiffs built a cabin on the California Rose Claim. (ECF No. 94-1 ¶ 5.) Plaintiffs allege that, over the next few years, their “cabin was struck by gunfire multiple times, ” their “windows were broken, ” and their “snowmobiles were stolen.” (Id. ¶ 9.)

         They further claim that Plaintiff Race was physically beaten by a number of men trespassing on his property. (Id.)

         Motivated by this, Plaintiffs say, they began putting a cable across the Road in 2004 (id. ¶ 10), apparently at the location marked with a green dot and the words “Private Property Sign” on ECF No. 94-2, reproduced above. On September 28, 2005, the Lake County Board of Commissioners met in open session regarding Plaintiffs' obstruction of the Road. (ECF No. 85 at 3, ¶ 5.) Race attended that meeting. (Id.) Defendants Hix and Semsack were not Board members at that time. The Board instead comprised Kenneth Olsen, Michael Hickman, and Carl Schaefer (see ECF No. 85-4), none of whom are parties to this lawsuit.

         The official meeting minutes summarize what appears to have been a tense and inconclusive discussion. Those minutes read, in relevant part, as follows:

Mr. Race explained that he has a cable across a road that the county has designated as County Road 6B and he has [erected] no trespassing signs. . . . Commissioner Olsen stated that [the Road] access[es] the national forest and he respectfully requested that Mr. Race open this road [considering that] its historic use is to [access] the national forest and to access other mining claims. . . . Commissioner Olsen asked if [Race] was the one that put up the cable and Mr. Race replied in the affirmative. He noted that he has done extensive research regarding the title to this land and he pointed out that [the location of his chain] is the termination of the public right-of-way. Commissioner Olsen asked on what basis he makes that determination. Mr. Race stated that this is based on . . . adverse possession . . . . Commissioner Olsen noted that [the Road] had been used open[ly] and adverse[ly] by the public for more than twenty years.[2] Mr. Race responded that he could not find any claim of right. Commissioner Olsen stated that the Board will proceed with what the Board needs to do with that road. Mr. Race stated that public use alone is not what defines adverse possession. Commissioner Olsen stated that you can not adverse[ly] possess public [property] and this is the position that the county will take and the Board wanted to go over these items with Mr. Race. Mr. Race understands the Board['s] concern and noted that he would ask the Board[']s assistance if someone lower down the road denied Mr. Race access to his property but private stuff is absolutely private. . . . Commissioner Olsen stated that the Commissioners have asked Mr. Race to remove the chain and his answer is no. The county will proceed from here.


         It took the County a little over a year to “proceed.” Specifically, on October 12 or 13, 2006, County employees removed all of Plaintiffs' obstructions and private property signs they had placed on the Road (“2006 Road Action”). (ECF No. 85 at 4, ¶ 6; see also ECF Nos. 85-7, 85-8.)

         Later that same day, Plaintiffs replaced their obstructions. (ECF No. 85 at 4, ¶ 6.) Then, on October 15, 2006, Race submitted a written statement to the Lake County Sheriff's Department complaining of vandalism and burglary of his fences and signs committed by “a group of individuals, [traveling in] multiple vehicles, led by a red Ford pickup with a stake bed with a Lake County Road and Bridge emblem.” (ECF No. 85-7 at 1.) He continued, “No court of law has found my property, which was vandalized, to be of the public domain, and this act constitutes an illegal ‘takings.'” (Id. at 2.)

         Race also wrote a letter to the Board, dated October 25, 2006, expressing his indignation at the Board's “violation of my civil rights, without any due process.” (ECF No. 85-8 at 1.) “Have you read the takings clause in the Colorado Revised Statutes?” he asked rhetorically. (Id. at 2.) “The attempt by this board to commandeer my property by physical force at the hands of the Road and Bridge department is hurtful, illegal, in direct violation of Colorado law and clearly unconstitutional.” (Id. at 3.)

         C. The 2013 and 2014 Road Actions

         Apparently the parties were at a standstill for the next six years. Then, according to Plaintiffs, “some time in 2012, Defendant Moyer [an adjoining landowner] began removing [Plaintiffs'] cable gate across the Road. Each time the cable gate was removed, [Plaintiffs] reinstalled the cable.” (ECF No. 95-25 ¶ 18.) They “eventually began replacing the removed cable gates with a strand of barbed wire with a posted sign hanging from the wire.” (Id.)

         On November 1, 2013, the Board convened a special meeting to discuss the Road. (Id. ¶ 19.) At the time, the Board comprised Defendants Hix and Semsack and non-party Michael Bordogna. (Id.) At the end of the meeting, a “[m]otion was made by Commissioner Hix that Lake County recognizes 6B to extend to the boundary of the national forest” (ECF No. 95-33 at 3)-or in other words, through and beyond Plaintiffs' various claims.

         On November 6, 2013, County employees again removed Plaintiffs' obstructions from the Road (“2013 Road Action”). (ECF No. 85 at 4, ¶ 9.) Plaintiffs replaced them about a week later (id.), and then constructed a “solid metal gate” across the Road (ECF No. 95-25 ¶ 29). “Defendant Moyer subsequently used a cutting torch to cut through and remove a portion of that gate.” (Id.)

         On October 2, 2014, County employees for a third time cleared Plaintiffs' obstructions from the Road (“2014 Road Action”). (ECF No. 85 at 5, ¶ 10.) Plaintiffs claim that the 2014 Road Action was taken at the direction of Hix and Semsack without complying with Colorado's open meetings laws. (ECF No. 95-25 ¶¶ 32-33.) In any event, Plaintiffs interposed additional obstructions about a week later (id.), and the Road remains obstructed to this day (ECF No. 95-25 ¶ 37).


         A. The Original Complaint & Motion to Remand

         In July 2015, Plaintiffs filed suit in Lake County District Court against the County, Hix, Semsack, and James Moyer (but not Moyer Ranch, LLC). (See ECF No. 4.) Plaintiffs asserted various property-related theories, including inverse condemnation, trespass, and quiet title. (Id. at 4-7.) Plaintiffs also asserted a claim for “Physical Entry and Damage - [42 U.S.C.] § 1983, ” allegedly in violation of both the Fourth and Fifth Amendments to the United States Constitution. The Fourth Amendment component of the § 1983 claim was directed at the County's choice to “damage[], remove[] and destroy[] Plaintiffs' gate, cables, signs, locks, chains and hinges.” (Id. at 4, ¶ 33.) The Fifth Amendment component of the § 1983 claim was directed at the allegedly unlawful taking of property “without notice or just compensation”; and also the alleged failure to provide Plaintiffs “due process in the creation of a public road.” (Id. at 5, ¶¶ 35-36.)

         Based on these federal-law theories of relief, Defendants removed to this Court in August 2015. (See ECF No. 1.) The County Defendants then took the highly unusual step of moving to dismiss the § 1983 claim and requesting that, upon dismissal of that claim, the matter be remanded to Lake County District Court-the very court from which they chose to remove. (See ECF Nos. 26, 27.) The County Defendants based their motion on the so-called “Williamson requirement, ” which holds that a § 1983 claim under the Fifth Amendment for deprivation of property without just compensation “is premature until it is clear that the Government has both taken property and denied just compensation.” Horne v. Dep't of Agric., 133 S.Ct. 2053, 2062 (2013) (citing Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186-87 (1985)) (emphasis in original). Given that there had been no hearing on the propriety of the alleged taking, or on just compensation, the County Defendants contended that the Williamson requirement dictated dismissal of Plaintiffs' § 1983 claim as unripe. (ECF No. 27 at 8-11.) Furthermore, because the § 1983 claim is the only federal claim in this case, Defendants requested that the Court remand the remainder of the action to Lake County. (Id. at 13-14; see also ECF No. 26 at 4.)[3]

         The Williamson requirement is not jurisdictional, see Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 560 U.S. 702, 729 (2010), but is a matter of prudential ripeness only, see Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 733-34 & n.7 (1997). Thus, it is waivable, and this Court held that the County Defendants had indeed waived the Williamson requirement by removing to federal court based on the § 1983 claim. (ECF No. 35 at 4-7.) In the same order, the Court also ruled that Plaintiffs had a duty to join as defendants all landowners potentially affected by the Court's eventual disposition of the Road dispute. (Id. at 9-17.)

         B. The Amended Complaint

         Plaintiffs then filed a First Amended Complaint (hereinafter, “Complaint”), which added landowner-defendants Arleen T. Ruggeri, Moyer Ranch, LLC, Lillie Nellie Avi, Donnamarie Smith, Arthur E. Pew, and James A. McEachern. (ECF No. 41.) The Complaint alleges seven claims for relief, which may be summarized as follows:

1. Inverse condemnation against the County.
2. A claim under 42 U.S.C. § 1983 against the County, Hix, and Semsack, alleging violations of both the Fourth and Fifth Amendments. Plaintiffs' Fifth Amendment theory is simply the constitutional “backstop” claim that remains premature until the County fails to pay just compensation, as discussed above. As for Plaintiffs' Fourth Amendment theory, they assert that their right to be free from unreasonable seizures was violated when the “Lake County Road and Bridge Department, at the direction and instruction of the [County], Hix and Semsack, damaged, removed and destroyed Plaintiffs' gate, cables, signs, locks, chains and hinges.” (Id. ¶ 33.) In other words, Plaintiffs are claiming compensation for the personal property seized when the County cleared Plaintiffs' obstructions.
3. Violation of the Colorado Open Meetings Law, Colo. Rev. Stat. §§ 24-6-401 et seq., alleging that the October 2014 Road Action was authorized by Hix and ...

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