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Reyes v. Colorado Division of Reclamation Mining and Safety

United States District Court, D. Colorado

July 29, 2019



          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).


         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.”


         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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