Colo. Off–Highway Vehicle Coal. v. Colo. Bd. of Parks & Outdoor Recreation

• Decision Date: 30 August 2012
• Docket Number: No. 11CA1988.,11CA1988.
• Citation: 292 P.3d 1132
• Parties: COLORADO OFF–HIGHWAY VEHICLE COALITION, a Colorado nonprofit corporation; Lyle Borders; Jennifer L. Dent; Western Slope ATV Association, a Colorado nonprofit corporation; Trails Preservation Alliance, a Colorado nonprofit corporation; Mile–Hi Jeep Club of Colorado, a Colorado not-for-profit corporation; Timberline Trailriders, Inc., a Colorado nonprofit corporation; Thunder Mountain Wheelers, a Colorado nonprofit corporation; Colorado Motorcycle Trail Riders Association, Inc., a Colorado nonprofit corporation; and San Juan Trail Riders, a Colorado nonprofit corporation, Plaintiffs–Appellants, v. COLORADO BOARD OF PARKS AND OUTDOOR RECREATION, n/k/a Colorado Parks and Wildlife Board, Defendant–Appellee.
• Court: Colorado Court of Appeals

292 P.3d 1132

COLORADO OFF–HIGHWAY VEHICLE COALITION, a Colorado nonprofit corporation; Lyle Borders; Jennifer L. Dent; Western Slope ATV Association, a Colorado nonprofit corporation; Trails Preservation Alliance, a Colorado nonprofit corporation; Mile–Hi Jeep Club of Colorado, a Colorado not-for-profit corporation; Timberline Trailriders, Inc., a Colorado nonprofit corporation; Thunder Mountain Wheelers, a Colorado nonprofit corporation; Colorado Motorcycle Trail Riders Association, Inc., a Colorado nonprofit corporation; and San Juan Trail Riders, a Colorado nonprofit corporation, Plaintiffs–Appellants,

v.COLORADO BOARD OF PARKS AND OUTDOOR RECREATION, n/k/a Colorado Parks and Wildlife Board, Defendant–Appellee.

No. 11CA1988.

Colorado Court of Appeals,

Div. V.

Aug. 30, 2012.

Trout, Raley, Montaño, Witwer & Freeman, P.C., James S. Witwer, Denver, Colorado, for Plaintiffs–Appellants.

John W. Suthers, Attorney General, Timothy J. Monahan, First Assistant Attorney General, Elaine J. Wizzard, Assistant Attorney General, Denver, Colorado, for Defendant–Appellee.

Opinion by Judge STERNBERG.^*

¶ 1 In this action alleging violations of the Open Meetings Law (OML), sections 24–6–401 to –402, C.R.S.2011, plaintiffs, the Colorado Off–Highway Vehicle Coalition (COHVCo), several nonprofit corporations, and interested citizens, appeal the district court's summary judgment in favor of defendant, the Colorado Parks and Wildlife Board (the Board). Plaintiffs also appeal the court's order denying them costs and attorney fees. We affirm.

I. Background

¶ 2 The following facts are undisputed and taken largely from the trial court's detailed order granting summary judgment in favor of the Board.

¶ 3 The Board is responsible for managing all state parks and outdoor recreation areas and for administering all state park and outdoor recreation programs. See§ 33–10–106(1)(b), C.R.S.2011. One of the outdoor recreation programs that the Board administers is the off-highway vehicle (OHV) program. See§§ 33–14.5–101 to–113, C.R.S.2011 (the OHV Act).

¶ 4 Under the OHV Act, annual registration and permit fees for the recreational use of OHVs are collected and placed in the OHV Recreation Fund. See § 33–14.5–106. All such funds are required to be used for specified OHV purposes. Id.

¶ 5 The OHV Act is silent regarding the specific procedures to be used in expending the funds. However, for several years, the Board has made a portion of the OHV funds available through a grant process, in which OHV constituent groups, government agencies, or other persons may apply for grant funds. To help distribute the funds, the Board created the OHV Subcommittee, which ranks grant applications based on selectioncriteria approved by the Board. However, the Board retains final decision-making authority to allocate grant funds.

¶ 6 In November 2009, the Board gave notice of and held a public meeting regarding possible changes to the OHV grant program and OHV Subcommittee. The Board held subsequent properly noticed public meetings on January 28, February 19, March 19, May 7, and July 16, 2010, at which the Board discussed possible changes to the OHV grant program and the OHV Subcommittee and received public comment on the proposed changes.

¶ 7 During the course of this hearing process in 2010, however, three violations of the OML occurred:

1. On March 19, following the properly noticed public meeting, the Board discussed proposed changes to the OHV grant program and the OHV Subcommittee via e-mail. The primary topic of discussion at this second meeting, from which the public was excluded, was “an alternative proposal” from a Board member that “called for a more aggressive reformation of the [Recreation Fund] grant program and [OHV] Subcommittee.”

2. On April 28, the Board again held a meeting, from which the public was excluded, via telephone and e-mail, to again discuss changes to the OHV grant program and OHV Subcommittee. At least two Board members discussed these changes over the phone, and all Board members received at least one e-mail after the telephonic meeting.

3. On June 7, an “OHV Program Modifications Roundtable” meeting was convened by the state Division of Parks and Outdoor Recreation to discuss proposed changes to the OHV grant program and OHV Subcommittee. All Board members were notified of the meeting, two attended it, and one actively participated in the discussion with representatives of constituent groups. In fact, two members of COHVCo also attended the meeting, but it was apparently otherwise closed to the public.

¶ 8 After the June 7 meeting, COHVCo sent the Board a letter, alleging that it had violated the OML by participating in the June 7 meeting. In another letter to the Board, COHVCo further alleged that the Board had also violated the OML by virtue of its second March 19 meeting and its April 28 meeting.

¶ 9 On July 16, the Board held its regularly scheduled public meeting. At this meeting, the attorney general briefed the Board on the legal implications of the alleged OML violations. Following this briefing, the Board then heard comments from several “key players” on the proposed changes, including a COHVCo representative, and received public comment from twenty different attendees. The Board publicly discussed the proposed changes and ultimately voted unanimously to approve them.

II. Procedural History

¶ 10 On August 13, 2010, plaintiffs filed suit alleging that the amendments adopted by the Board were beyond the scope of its statutory authority and that because of the OML violations that occurred on March 19, April 28, and June 7, the amendments were invalid. In its answer, the Board admitted the three OML violations.

¶ 11 Plaintiffs then filed a motion for summary judgment. In their motion, plaintiffs argued that the Board had violated the OML on March 19, April 28, and June 7 and requested an order “enjoining or invalidating the Board's approval of the [changes to the OHV grant program and OHV Subcommittee].” Plaintiffs also requested an award of costs and attorney fees under the OML.

¶ 12 In response, the Board again admitted that it violated the OML on the three occasions. However, the Board argued that the OML violations “were all effectively remedied” by the July 16 public meeting. The Board also argued that plaintiffs were not entitled to costs and attorney fees under the OML because their “pending action was not at all required to make the ... Board comply with the state OML.”

¶ 13 In reply, plaintiffs argued that no “right to cure” OML violations has been recognized in Colorado and that, in any event, the Board did not “cure” the prior OML violations because its July 16 meeting “merely displayed the orchestrated, unanimous ‘rubber stamping’ of the decisions reached during prior meetings that violated the OML.” Plaintiffs also argued that they were entitled to costs and attorney fees because the Board admitted to violating the OML on three occasions.

¶ 14 The court then held a hearing and heard extensive argument from the parties.

¶ 15 In a detailed, well-researched, and well-reasoned written order, the district court granted summary judgment in favor of the Board. Initially, and consistent with the Board's admissions in its answer, the court found that the Board violated the OML on March 19, April 28, and June 7, 2010.

¶ 16 The court then turned to whether the Board could “cure” a violation of the OML, framing the legal issue as follows: “The issue of whether a state agency can ‘cure’ a violation of the OML by holding a properly noticed public meeting and openly and fully addressing the matters which formed the basis of the prior OML violations is an issue for which there is no clear precedent in Colorado.”

¶ 17 Then, after reviewing Colorado case law construing the OML, as well as pertinent out-of-state authority, the court held, as a matter of law, that the Board could “cure” prior violations of the OML and in the July 16 meeting did in fact “cure” the three prior OML violations:

Accordingly, the Court finds that, as a matter of law, the ... Board was within its lawful authority to remedy the admitted OML violations here and, in effect, “cure” the prior OML violations by holding a fully noticed public meeting on July 16, 2010. The record is uncontroverted that the July 16, 2010, meeting was widely attended by parties either supporting or opposing the proposed changes to the OHV grant program and that those parties were provided an opportunity to be fully heard. Further, the ... Board heard additional public comment and engaged in renewed deliberations before announcing their subsequent decision to ratify the [changes to the OHV grant program and OHV Subcommittee]. Therefore, the Court finds that the actions of the ... Board on July 16, 2010, did not merely constitute a ‘rubber stamping’ of a prior decision....

¶ 18 The court also denied plaintiffs' request for costs and attorney fees, finding that they were not the “prevailing party” because the “Board cured any violation of the OML before the initiation of this lawsuit.”

¶ 19 On appeal, plaintiffs assert that the trial court erred in its determination that the OML violations had been cured, and they seek an award of costs and attorney fees pursuant to section 24–6–402(9), for bringing the suit that alleged the three OML violations and for prosecuting this appeal.

III. Open Meetings Law

¶ 20 Plaintiffs contend that the district court erred by determining that the Board “cured” the three OML violations. We disagree.

¶ 21 We review a grant of summary judgment de novo. Rocky Mountain Festivals, Inc. v. Parsons Corp., 242 P.3d 1067, 1074 (Colo.2010). We will uphold a grant of summary judgment only if the pleadings and supporting documents demonstrate that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id. (citing C.R.C.P. 56(c)).

¶ 22 Likewise, interpreting the OML presents a question of...