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Robinson v. Oil Shale Corp.

United States District Court, D. Colorado

March 12, 2018



          CHRISTINE M. ARGUELLO United States District Judge.

         This matter is before the Court upon the January 23, 2018, Recommendation by Magistrate Judge Gordon P. Gallagher that the Court deny in part Defendant The Oil Shale Corporation's (“TOSCO”) Motion to Dismiss with Prejudice the Amended Complaint. (Doc. # 89.) Defendant TOSCO timely objected to Recommendation (Doc. # 91), to which Plaintiff Susan Robinson replied in support of the Recommendation (Doc. # 97). For the reasons described herein, the Court rejects the Recommendation and grants Defendant TOSCO's Motion to Dismiss with Prejudice (Doc. # 61).

         I. BACKGROUND

         Plaintiff owns land in Rio Blanco County, Colorado. (Doc. # 48 at 1.) This action concerns a parcel of real estate adjacent to Plaintiff's land and located in portions of Sections 2, 3, 4, 9, 10, 11, 15, and 16 of Township 4 South, Range 95 West of the Sixth Prime Meridian, Rio Blanco County, Colorado (the “Property”). The Property is roughly 2, 300 acres (four square miles), (Doc. # 91 at 1), and is depicted on Plaintiff's map exhibit (Doc. # 48-1) by the green “adverse possession claim boundary line” (Doc. # 48 at 2).

         Plaintiff alleges that her family acquired by homesteading the Property at the start of the twentieth century and has used the homesteaded land as a sheep and cattle ranch since then. (Id.) The Bureau of Land Management (the “BLM”) came to own the Property at some point prior to 1986. (Id.) In 1972, Plaintiff acquired a grazing lease for the Property “or a portion thereof” from the BLM. (Id.) In 1986, Defendant TOSCO purchased a portion of the Property from the BLM. (Id.) The BLM informed Plaintiff in 1987 that the Property was no longer available to lease and that Plaintiff could continue to lease the Property from Defendant TOSCO. (Id. at 3.) Plaintiff did not continue to lease the Property from Defendant TOSCO, nor did Plaintiff negotiate a new lease with Defendant TOSCO. (Id.) Defendant TOSCO never gave Plaintiff permission to be on the Property. (Id.)

         Plaintiff contends that since 1986, she and her family “have acted as the average landowner would in using and overseeing the Property.” (Id.) She describes possessing and maintaining the Property by:

[C]onstructing and maintaining roads, fences, and gates across and through the Property; installing and/or maintaining windmills, springs, and wells on the Property; spraying for and eliminating noxious weeds on the Property; and grazing livestock on the Property.

(Id.) Plaintiff also asserts that she and her husband (now deceased) regularly “inspected the Property, ” “excluded others, including . . . hunters and hikers, ” and “maintained gates and fences” to thwart visitors. (Id.) Plaintiff alleges that in early 2016, shortly after her husband's death, a representative of Defendant TOSCO “demanded that she execute a lease for the Property, ” but that she “refused to sign the lease and advised Defendant TOSCO's representative that the Property already belonged to her.” (Id. at 4.)

         Plaintiff describes turning out approximately 200 cows and calves for grazing into the Schutte Gulch on her Property and then herding them to the Gordon Gulch, also on her Property, in May and June 2017.[1] (Id.) According to Plaintiff, she discovered in early June 2017 that Defendant TOSCO “had, without [her] knowledge or permission, interfered with [her] gates . . ., herded [her] cattle away from the pasture on BLM land, and cut off [her] cattle from feed or water.” (Id. at 3-4.) She also alleges that Defendant TOSCO chased her cattle through a fence it constructed to impede the livestock's access to water and grazing land. (Id. at 5.) Defendant TOSCO's actions allegedly caused “irreparable harm to Plaintiff and her cattle, including but not limited to the orphaning and death of calves and potential loss of Plaintiff's livelihood from cattle ranching.” (Id. at 6.)

         Plaintiff initiated this action against Defendant TOSCO on June 6, 2017 (Doc. # 4) and amended her Complaint to include Defendant XTO Energy Inc. (“XTO”) and additional claims on July 17, 2017 (Doc. # 48.) Plaintiff asserts eight claims against Defendants: (1) quiet title through adverse possession; (2) alternatively, prescriptive easement; (3) trespass; (4) intentional, wrongful, and malicious driving of cattle; (5) negligence; (6) trespass to chattel; (7) tortious interference with prospective business advantage; and (8) unjust enrichment.[2] (Id. at 6-12.)

         Defendant TOSCO filed the instant Motion to Dismiss with Prejudice on July 31, 2017, asserting that Plaintiff fails to state any plausible claim for relief pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. # 61.) Plaintiff responded in opposition on August 21, 2017 (Doc. # 67), to which Defendant TOSCO replied on September 12, 2017 (Doc. # 73). Magistrate Judge Gallagher issued his Recommendation on Defendant TOSCO's Motion to Dismiss on January 23, 2018, and advised that this Court deny the motion as to Claims 1, 2, 3, 5, 6, and 8 and grant it as to Claim 7 (tortious interference with prospective business advantage). (Doc. # 89.) Defendant TOSCO filed its Objections to the Recommendation on February 6, 2018. (Doc. # 91.) Plaintiff responded in support of the Recommendation on February 27, 2018. (Doc. # 97.)

         Separately, Defendant XTO-not party to this dispute over this Recommendation-filed its own Motion to Dismiss for failure to state a claim on September 5, 2017. (Doc. # 71.) Magistrate Judge Gallagher recommended on January 16, 2018, that Defendant XTO's Motion to Dismiss be granted for failure to state a claim. (Doc. # 88.) He concluded that Plaintiff's Amended Complaint was insufficiently specific as to Defendant XTO. (Id. at 10.) No objections to that Recommendation were filed, and this Court affirmed and adopted the Recommendation on March 1, 2018. (Doc. # 98.) Accordingly, Defendant XTO was dismissed from the case.

         On February 13, 2018, Defendant TOSCO filed its Conditional Answer and Counterclaim to Plaintiff's Amended Complaint, in which Defendant TOSCO denied each of Plaintiff's claims and asserted one counterclaim against Plaintiff for trespass. (Doc. # 94 at 11.)


         A. REVIEW OF ...

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