161 F.3d 619 (10th Cir. 1998), 97-1158, Branson School Dist. RE-82 v. Romer

Docket Nº:97-1158.
Citation:161 F.3d 619
Party Name:BRANSON SCHOOL DISTRICT RE-82, Pritchett School District Re-3, Springfield Public Schools District RE-4, and Kandace Sue Spurling and Brooke Ilene Spurling, by and through their parents, David Earl Spurling and Lona Sue Spurling, Plaintiffs-Appellants, v. Roy ROMER, Governor of the State of Colorado, and Robert Mailander, Thomas W. Swanson, and Cha
Case Date:November 20, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 619

161 F.3d 619 (10th Cir. 1998)

BRANSON SCHOOL DISTRICT RE-82, Pritchett School District

Re-3, Springfield Public Schools District RE-4,


Kandace Sue Spurling and Brooke Ilene Spurling, by and

through their parents, David Earl Spurling and

Lona Sue Spurling, Plaintiffs-Appellants,


Roy ROMER, Governor of the State of Colorado,


Robert Mailander, Thomas W. Swanson, and Charles A. Vidal,

in their official capacities as members of the

Colorado State Board of Land

Commissioners, Defendants-Appellees,

Citizens to Save Colorado's Public Trust Lands, Inc., Amicus Curiae.

No. 97-1158.

United States Court of Appeals, Tenth Circuit

November 20, 1998

Page 620

[Copyrighted Material Omitted]

Page 621

[Copyrighted Material Omitted]

Page 622

[Copyrighted Material Omitted]

Page 623

[Copyrighted Material Omitted]

Page 624

[Copyrighted Material Omitted]

Page 625

Evan S. Lipstein, Lipstein & Mortimer, Denver, Colorado (Charles E. Mortimer Jr., Lipstein & Mortimer, and John Berry, with him on the briefs), for appellants.

Patricia S. Bangert, Director of Legal Policy, Colorado Department of Law (Gale A. Norton, Cheryl A. Linden, and William E. Thro, Office of Attorney General of Colorado, with her on the brief), for appellees.

David R. Eason, Berenbaum, Weinshienk & Eason, Denver, Colorado, and Richard W. Daily, Powers Phillips, Denver, Colorado, for amicus curiae Citizens to Save Colorado's Public Trust Lands, in support of appellees.

Before ANDERSON, EBEL and HENRY, Circuit Judges.

EBEL, Circuit Judge.

This case presents the question of whether the voters of a state may alter the management principles guiding the state's trusteeship of public lands without violating the terms of a century-old trust established by Congress when the state entered the Union. Because we find that the recent changes made in the management of Colorado's land trust for public schools conform to the trust restrictions created by Congress in 1875, we hold that "Amendment 16" to the Colorado Constitution approved by state voters in 1996 does not violate the Supremacy Clause of Article VI of the United States Constitution. Therefore, we affirm.


The origins of this dispute stretch back to the original legislation under which the Territory of Colorado entered the Union as a state. In 1875, Congress passed an enabling act that authorized the admission of Colorado upon the territory's passage of a state constitution. 1 See Colorado Enabling Act, ch. 139, 18 Stat. 474 (1875). The Enabling Act established that Sections 16 and 36 of each township 2 in the new state would be "granted to said State for the support of common schools." See id. § 7. 3 The Act also established that the two sections "granted for the support of common schools shall be disposed of only at public sale ... [with] the proceeds to constitute a permanent school-fund, the interest of which to be expended in the support of common schools." Id. § 14.

Within a year of the new enabling act, Colorado's leaders had convened a constitutional convention and approved the requisite republican constitution. See Carl Ubbelohde et al., supra, at 145-48. That first state constitution responded to the federal government's grant of lands for common schools by establishing a "public school fund" that would "consist of the proceeds of such lands as have heretofore been, or may hereafter be granted

Page 626

to the State by the general government for educational purposes," as well as all escheats and any grants to the State "for educational purposes." See 1876 Colo. Const., art. IX, § 5. Article IX of the 1876 Constitution established that this public school fund "shall forever remain inviolate and intact," and the interest from the fund "shall be expended in the maintenance of the schools of the State." 4 Id., art. IX, § 3. The 1876 Constitution also created a State Board of Land Commissioners to manage the federal lands that had been granted under the enabling act. See id., art. IX, §§ 9, 10. Furthermore, the state legislature was directed to ensure that within the earliest practicable period these land grants "shall be judiciously located and carefully preserved and held in trust subject to disposal, for the use and benefit of the respective objects for which said grants of land were made...." See id., art. IX, § 10.

The State Board of Land Commissioners, like most Western states, initially pursued an aggressive policy of selling off the school-grant lands both to provide income for the state's public schools and as a means to spur settlement in the state. See Sally K. Fairfax et al., The School Trust Lands: A Fresh Look at Conventional Wisdom, 22 Envtl. L. 797, 807 & n. 25 (1992) (noting that early in the history of the management of school trust lands in the West, where land was otherwise cheaply and widely available, holding and leasing the school trust lands was not an economically feasible option). However, this policy gradually shifted to one of holding onto the school lands and renting them to ranchers, farmers, and other lessees. See id. at 823-24. By the 1990s, nearly 3 million acres out of the original 4.6 million acres remained intact in the state's school lands portfolio. See id. at 833 (figure 1 showing that in 1990, 62% of the state's original school land grants remained in state ownership); Mark Obmascik, Use of State Land Amendment Focus, Denver Post, Oct. 6, 1996, at A1 (indicating that by 1996, the state still held 3 million acres in school lands, and the public school fund had reached $260 million in principal).

In the mid-1990s, as the land board's management policy began to shift back toward selling some of its more valuable holdings, including a few parcels regarded by some as environmentally sensitive, Governor Roy Romer and others championed a plan to overhaul the land trust system in Colorado. See Obmascik, supra, at A1. Romer and his supporters proposed what became known as "Amendment 16."

The 1996 ballot initiative presented three groups of revisions to Article IX of the Colorado Constitution, the article which deals with the federal government's grant of school lands. See Amendment 16, 1997 Colo. Sess. Laws 2399. 5 The first set of revisions set some general parameters for the use of public school funds; the plaintiffs have included challenges against a few of these provisions along with the main thrust of their other challenges.

The second set of revisions involves a wholesale scrapping of the old structure of the three-member paid State Board of Land Commissioners that had managed the school lands for generations. Instead, under Amendment 16, the board would be composed of five term-limited members who would serve without a salary, would have a constitutional protection from personal liability for any negligence in office, and would be selected on the basis of certain interest-group constituencies. See id. § 9.

The third section of Amendment 16 contains most of the substantive core of the ballot measure, and it is this section which

Page 627

has prompted the crux of the plaintiffs' challenges. The section wipes out the previous requirement that the land board manage its land holdings "in such a manner as will secure the maximum possible amount" for the public school fund. See id. § 10(1). Instead, the third section requires the new land board to manage its land holdings "in order to produce reasonable and consistent income over time." See id.

This section also provides a series of management principles to guide the land board in its activities. Some of these changes include: a requirement that the land board establish a permanent 300,000 acre "Stewardship Trust" 6 of land determined "to be valuable primarily to preserve long-term benefits and returns to the state," and that such land be held and managed for stewardship, public use or future disposition by permitting only uses that will "enhance the beauty, natural values, open space, and wildlife habitat" of that acreage, see id. § 10(1)(b)(I); a requirement that the board manage its agricultural and natural resource holdings to promote long-term productivity and value, see id. §§ 10(1)(b)(II) & (III); and a requirement to allow school districts to lease, purchase or use the school trust's lands for new school sites at prices that may not be more than "appraised fair market value," see id. § 10(1)(e).

On Nov. 5, 1996, voters approved Amendment 16; the official vote tally was 708,502 (51.9%) in favor, and 656,095 (48.1%) against. See 1997 Colo. Laws at 2402.

Members of the coalition who had campaigned against Amendment 16 then turned to the courts, filing this suit six weeks after the election. The suit was brought in the name of three rural school districts in Las Animas and Baca Counties (the "school district plaintiffs") and two school children from Washington County (the "individual plaintiffs"), represented by their parents, who alleged that they would be affected by Amendment 16. 7 On a motion from the plaintiffs, the district court entered a temporary restraining order barring implementation of any of Amendment 16's provisions pending the results of a hearing on the plaintiffs' request for a preliminary injunction. Following that hearing, the court dissolved the TRO and issued a preliminary injunction against only § 9(5), the provision waiving personal liability for land board members. Following cross-motions for summary judgment and the intervention of "Citizens to Save Colorado's Public Trust Lands," the district court, in a very careful and thorough opinion, ruled in favor of the defendants, upholding the legality of Amendment 16. See Branson Sch. Dist. RE-82 v. Romer, 958 F.Supp. 1501 (D.Colo.1997). On March 27, 1997, the court entered its judgment dismissing the plaintiff's suit and dissolving the preliminary injunction. This appeal by the plaintiffs followed.


To continue reading