United States District Court, D. Colorado
OPINION AND ORDER GRANTING MOTION FOR SUMMARY
JUDGMENT
Marcia
S. Krieger Senior United States District Judge.
THIS
MATTER comes before the Court pursuant to the
Defendants' Motion to Dismiss (# 28),
Ms. Reyes' pro se[1] response (# 34
and others), and the Defendants' reply
(# 37). On June 13, 2019, the Court issued
an order (# 49) converting the
Defendants' motion to one for summary judgment under
Fed.R.Civ.P. 12(d), inviting the parties to submit any
additional evidentiary material they desired. The parties did
so (# 51, 53, 54). Also pending are Ms.
Reyes' various motions requesting leave to amend her
Complaint (# 29, 30, 33), a motion by Ms.
Reyes seeking to restrict access (# 32) to
Docket # 31, and a motion by Ms. Reyes to appoint pro
bono counsel to assist her (# 52).
FACTS
Ms.
Reyes is a resident of La Porte, Colorado. In or about
September 2017, the Loveland Ready Mix Cement Company applied
to the Colorado Division of Reclamation, Mining, and Safety
(“DRMS”), seeking a permit to conduct mining
activities at a location in LaPorte known as the Knox Pit.
Because
significant aspects of this case involve the process by which
public is permitted to provide input into DRMS decisions, the
Court will pause intermittently in its factual recitation to
address the pertinent components of that process. The
DRMS' regulations at issue here are embodied in a series
of rules found at 2 CCR 407-4. Rule 1.6.1(2)(d) provides that
DRMS notifies the public of a mining application by, among
other things, publishing a notice in a newspaper of general
circulation. The record reflects that DRMS published notice
of the Knox Pit application via classified ads places in the
Fort Collins Coloradoan on various dates in October
2017, including October 19, 2017. By operation of Rule
1.7.1(2)(a), members of the public had 20 days from the date
of the last publication of the legal notice to submit written
comments to DRMS. The parties here appear to agree that
November 8, 2017 was the deadline for the submission of such
comments.[2]
Ms.
Reyes did not learn about the Knox Pit application until
November 6, 2017, only two days before comments were due. Ms.
Reyes scrambled to prepare a written comment, completing it
and mailing it out on November 7, 2017. DRMS received Ms.
Reyes' comment on November 9, 2017, but because Rule
1.7.1(2)(a) provides that “written comments . . . must
be received by the Office” by the deadline,
DRMS deemed her comment untimely.[3] (Emphasis added.)
Under
DRMS regulations, the submission of a timely comment has
certain beneficial consequences. A person who submits a
timely comment may thereafter be deemed a “party”
- that is, “a person who demonstrates that they are
directly and adversely affected” by the proposed mining
operation. Rule 1.1(36). As discussed herein, persons with
party status as to an application have certain rights and
benefits that are not afforded to non-parties. Because DRMS
rejected Ms. Reyes' comment as untimely, Ms. Reyes did
not have party status with regard to the Knox Pit
application.
DRMS,
through its entity the Mined Land Reclamation Board
(“the Board”), scheduled public hearings on the
Knox Pit application to be held at the DRMS offices in
Denver. On January 11, 2018, Ms. Reyes wrote to DRMS, stating
that she is “elderly and disabled” and subject to
a “mobility impairment” that requires her to rely
on the services of a driver. She explained that these
circumstances “make[ ] driving long distances a
challenge.” She stated that she intended to attend the
public hearings on the Knox Pit application, but because of
her disability, she was concerned that travel to Denver would
be difficult. She thus requested that the DRMS
“transfer venue” of the public hearing
“from Denver to Fort Collins.” It does not appear
from the record that DRMS responded immediately to Ms. Reyes
on this issue, but at a February 21, 2018 Board meeting, the
Board considered a “request for board hearing to be
held in Fort Collins, Colorado regarding the Knox Pit permit
application.” By unanimous vote, the Board denied the
request to move the hearing. On March 1, 2018, Jared Ebert, a
representative of DRMS, wrote to Ms. Reyes explaining that
“the Board did consider your request to move the
hearing, ” but “did not think it would be
feasible, ” as “there are a number of hearings
scheduled that day regarding mine sites located throughout
Colorado.” Mr. Ebert also advised Ms. Reyes that
although DRMS regulations “do not specifically allow
for telephone or remote participation in the hearing . . .,
the Board did direct me to work with you specifically so that
you can participate over the phone should you like.”
Mr. Ebert also mentioned that “the entire board meeting
can be live streamed from our website.”
Meanwhile,
Ms. Reyes embarked upon efforts to appeal or seek
reconsideration of DRMS' determination that she was not
entitled to party status. On various dates in early March
2018, Ms. Reyes wrote to Jeff Fugate, a Deputy Colorado
Attorney General and the DRMS' legal representative,
explaining her disability and requesting that the DRMS waive
the untimeliness of her comment and grant her party status
regarding the Knox Pit application. Mr. Fugate responded with
an explanation of why Ms. Reyes' comment was deemed
untimely and advised her that, pursuant to Rule 2.6, she
could file a request with the Board to be granted party
status notwithstanding her late comment.[4] Although the
record does not contain a formal request by Ms. Reyes to the
DRMS under Rule 2.6, evidence in the record suggests that she
formally requested to be granted party status.
The
Knox Pit application was formally considered by the Board at
a public hearing in Denver on March 21, 2018. In a
Pre-Hearing Notice, which essentially set the agenda for the
March 21 hearing, 12 individuals with party status were
identified as “Objectors, ” along with an entity
known as the “No Laporte Gravel Corp.” (of which
Ms. Reyes appears to be a member or affiliate). Two of the
Objectors (including the No Laporte Gravel Corp.) were listed
as intending to call witnesses, and an additional Objector
was indicated as intending to offer exhibits. The schedule
proposed that, after the applicant made a presentation, the
Objectors would have afforded 3.5 hours, apparently
collectively, to present witnesses and exhibits. Thereafter,
a “non-party public comment period” would occur,
in which non-parties would have a total of 20 minutes, with
an apparent limit of 5 minutes per person, to address the
Board. (The Objectors had an additional opportunity to make
closing and rebuttal statements.)
Mr.
Reyes attended the March 21 hearing in person. According to
the transcript of that hearing, one of the first orders of
business undertaken by the Board at the hearing was
consideration of a “request for party status that was
received from Ms. Tess Reyes.” The Board heard a short
argument from Ms. Reyes, in which she explained that she
thought that having her comment postmarked before November 8,
2017 would be sufficient to render it timely. A Board member
inquired whether Ms. Reyes desired to provide testimony at
the hearing, and Ms. Reyes responded that she would
appreciate an opportunity to do so. Asked how much time she
would need for that presentation, Ms. Reyes responded
“whatever you allocate, I'll try to fit it. I can
do it in 15 minutes or maybe less.” Mr. Fugate gave a
response on behalf of the DRMS, opposing Ms. Reyes'
request to be designated as a party but he noted that the
agenda for the hearing included the allotment of 20 minutes
for comments by “nonparty interested persons.”
Mr. Fugate explained that “really, that was included in
this prehearing order for Ms. Reyes to provide her [an]
opportunity to present her concerns or comments to the Board
within the hearing, but she would still be . . . legally
recognized as a nonparty interested person.” The Board
inquired of Mr. Fugate whether the DRMS' position was
that Ms. Reyes would be limited to only 5 minutes of speaking
and Mr. Fugate responded “I would leave that to the
Board's discretion. I'm not sure how many other
non-party interested persons are planning to appear. The
Division wouldn't object to providing her more
time.” The Board ultimately voted to deny Ms.
Reyes' request for party status, but to allow her to
speak during the non-party time period, with the Board
stating that “when we listen to the non-party objectors
. . . we can make a decision then” about whether Ms.
Reyes could be given more than 5 minutes to speak.
The
record reflects that four non-parties, including Ms. Reyes,
spoke at the hearing. The transcript of the hearing does not
reflect how long Ms. Reyes spoke, but there is no indication
in the record that the Board prevented her from completing
whatever presentation she wished to make. At the conclusion
of the hearing, the Board voted to approve the Knox Pit
project.
Based
on these facts, the Court previously construed Ms. Reyes to
assert the following claims: (i) violation of Title II of the
Americans With Disabilities Act (“ADA”), 42
U.S.C. §12132 et seq., against DMRS arising
from its refusal to relocate the Knox Pit meeting(s) to Fort
Collins, Colorado to accommodate her disability; and (ii) a
claim under 42 U.S.C. § 1983, sounding in deprivation of
procedural Due Process under the 5th and
14th Amendments, against Mr. Fugate, Mr. Kooyman,
and Ms. Mojar.
The
Defendants move for summary judgment (# 28)
against Ms. Reyes on all of her claims, arguing: (i) that Ms.
Reyes' Title II claim fails because it was the Board, not
the DRMS, that decided not to move the hearing; (ii) that
Eleventh Amendment immunity bars Ms. Reyes' ADA claim
against the DRMS; (iii) that DRMS sufficiently accommodated
Ms. Reyes' disability by offering to permit her to appear
by telephone and by granting her an opportunity to address
the Board even though she was not a party; (iv) that Ms.
Reyes' § 1983 claim against the individual
Defendants fails because none of those Defendants personally
participated in any deprivation of Ms. Reyes'
constitutional rights; and (v) to the extent that Ms. Reyes
states a constitutional claim against any of the individual
Defendants, those Defendants are entitled to qualified
immunity because the contours of such a constitutional claim
are not “clearly established.”
ANALYSIS
A.
Preliminary matters
Ms.
Reyes has filed several motions that are appropriate to
consider before the Court addresses the Defendants'
motion.
First,
Ms. Reyes has three pending motions (# 29, 30,
33) that seek to amend her Complaint. Docket # 29
appears to request leave to add six additional causes of
action: that DRMS denied her a reasonable accommodation of
her disability in violation of 28 C.F.R. §
35.130(b)(7)(i) and 28 C.F.R. § 31.130(c), that DRMS
excluded Ms. Reyes from participating in public programs
because of her disability, that as used a “method of
administration” discriminated against Ms. Reyes because
of her disability, that it imposed eligibility criteria upon
Ms. Reyes that prevented her from enjoying equal benefits to
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