Moss v. Members of The Colo. Wildlife Comm'n

• Decision Date: 13 May 2010
• Docket Number: No. 09CA1262.,09CA1262.
• Citation: 250 P.3d 739
• Parties: Anita MOSS and Robert Westby, Plaintiffs–Appellants,v.MEMBERS OF the COLORADO WILDLIFE COMMISSION, in their official capacities; the Colorado Division of Wildlife, an administrative agency of the State of Colorado; and the Boulder County Board of Commissioners, in their official capacities, Defendants–Appellees.
• Court: Colorado Court of Appeals

250 P.3d 739

Anita MOSS and Robert Westby, Plaintiffs–Appellants,

v.MEMBERS OF the COLORADO WILDLIFE COMMISSION, in their official capacities; the Colorado Division of Wildlife, an administrative agency of the State of Colorado; and the Boulder County Board of Commissioners, in their official capacities, Defendants–Appellees.

No. 09CA1262.

Colorado Court of Appeals, Div. IV.

May 13, 2010.

Susan Morath Horner, P.C., Susan Morath Horner, Boulder, Colorado, for Plaintiffs–Appellants.John W. Suthers, Attorney General, Tim Monahan, First Assistant Attorney General, Denver, Colorado, for Defendants–Appellees Members of the Colorado Wildlife Commission and Colorado Division of Wildlife.H. Lawrence Hoyt, County Attorney, Andrew R. MacDonald, Assistant County Attorney, Boulder, Colorado, for Defendant–Appellant Boulder County Board of Commissioners.Opinion by Judge WEBB.

This action pits safety concerns of plaintiffs, Anita Moss and Robert Westby, over firearm hunting in rural Boulder County near their homes, against the regulatory authority of defendants Colorado Wildlife Commission (CWC) and Colorado Division of Wildlife (CDOW) (collectively the Division) which allow firearm hunting in the Sugar Loaf Mountain Area (Sugar Loaf), where plaintiffs live. Despite having passed a resolution restricting the discharge of firearms in Sugar Loaf, defendant Boulder County Board of Commissioners (the County) supports dismissal of this action for plaintiffs' failure to exhaust administrative remedies before the Division. We affirm the dismissal.

I. Facts

Since 1980, Sugar Loaf has been subject to a County resolution restricting the discharge of firearms adopted under section 30–15–302, C.R.S.2009. The statute provides, as relevant here:

(1) The board of county commissioners ... may designate, by resolution, areas in the unincorporated territory of such county in which it is unlawful for any person to discharge any firearms, except a duly authorized law enforcement officer acting in the line of duty, but nothing in this subsection (1) shall prevent the discharge of any firearm in shooting galleries or in any private grounds or residence under circumstances when such firearm can be discharged in such a manner as not to endanger persons or property and also in such a manner as to prevent the projectile from any such firearm from traversing any grounds or space outside the limits of such shooting gallery, grounds, or residence.

(Emphasis added.) Nevertheless, the Division has issued and continues to issue licenses and permits for big game hunting with firearms in the game management unit that includes Sugar Loaf. It has not imposed any restrictions on hunters “to prevent the projectile ... from traversing any grounds.” The complaint alleges confrontations between hunters and residents arising from discharge of firearms near homes and roads.

Based on section 30–15–302(1), plaintiffs sought declaratory relief that all firearm hunting is unlawful in Sugar Loaf; mandamus relief to compel the Division to recognize and give effect to the County's resolution; and injunctive relief prohibiting the Division from issuing licenses and permits for hunting in Sugar Loaf.

The Division moved to dismiss for plaintiffs' failure to exhaust their administrative remedies. The County moved to dismiss for failure to state a claim on which relief could be granted.¹ Plaintiffs moved for summary judgment against the Division. They argued that exhaustion was unnecessary because the County resolution effectively bans all firearm hunting in Sugar Loaf as a matter of law, and thus leaves the Division with no discretion.

At the trial management conference, the court heard argument on these motions but did not take evidence. It dismissed the case against the Division for lack of subject matter jurisdiction based on plaintiffs' failure to exhaust administrative remedies; dismissed the case against the County, which had been joined as an interested party under C.R.C.P. 57(j), but no separate claim was asserted against it; ² and, based on these dismissals, denied plaintiffs' motion for summary judgment without considering the merits. The court did not explain its rationale for the exhaustion ruling beyond adopting “the reasons set forth by the defendants.”

II. Mootness

Statements in the briefs indicated that following dismissal and while this appeal was pending, plaintiffs had unsuccessfully petitioned the Division to restrict hunting in Sugar Loaf. We directed the parties to file supplemental briefs on mootness. Plaintiffs and the Division agree that the specific question of failure to exhaust is moot. Nevertheless, plaintiffs assert that we should resolve the exhaustion question. The Division denies that any exception to mootness applies.

An issue is moot when the court's ruling will have no practical legal effect on the existing controversy because a party has complied with the order in dispute. See Van Schaack Holdings, Ltd. v. Fulenwider, 798 P.2d 424, 426–27 (Colo.1990). In that event, an appellate court will usually decline to address the merits. USAA v. Parker, 200 P.3d 350, 356 (Colo.2009). However, the appellate court may do so “where interests of a public nature are asserted under conditions that may be repeated immediately.” Feigin v. Colo. Nat'l Bank, 897 P.2d 814, 817 (Colo.1995).

Here, this test is satisfied. Because the other residents would be affected by a ruling addressing any risks of hunting in Sugar Loaf, interests of a public nature are implicated. And so long as the Division continues to license such hunting, the conditions that led plaintiffs to seek relief are ongoing, subject only to differing seasonality of hunting various species of wildlife. Further, we note that Sugar Loaf residents other than plaintiffs could raise identical claims. Cf. Morgan County Dep't of Human Services ex rel. Yeager, 93 P.3d 589, 593 (Colo.App.2004).

Accordingly, we turn to the merits of the exhaustion issue.

III. Denial of Summary Judgment

Plaintiffs' contention that the trial court erred when it denied their motion for summary judgment is not properly before us. See Lombard v. Colorado Outdoor Educ. Center, Inc., 187 P.3d 565, 573 n. 6 (Colo.2008) (denial of summary judgment motion not appealable).

IV. Exhaustion

The exhaustion of administrative remedies doctrine “serves as a threshold to judicial review that requires parties in a civil action to pursue available statutory administrative remedies before filing suit in district court.” State v. Golden's Concrete Co., 962 P.2d 919, 923 (Colo.1998). If a party fails to satisfy the exhaustion requirement, the district court is without jurisdiction to hear the action. Id. This requirement “prevents piecemeal application for judicial relief and unwarranted interference by the judiciary in the administrative process.” Horrell v. Dep't of Admin., 861 P.2d 1194, 1197 (Colo.1993). It also allows an agency to correct errors on matters within its expertise and to compile a record adequate for judicial review. Colorado Dep't of Public Health & Environment v. Bethell, 60 P.3d 779, 784 (Colo.App.2002).

When administrative remedies are provided by statute or ordinance, those procedures must be followed if the contested matter is within the jurisdiction of the administrative authority, Horrell, 861 P.2d at 1197, unless the administrative remedy would not be meaningful. See Bazemore v. Colorado State Lottery Div., 64 P.3d 876, 880 (Colo.App.2002). Further, exhaustion is unnecessary “when the matter in controversy raises questions of law rather than issues committed to administrative discretion and expertise.” Golden's Concrete Co., 962 P.2d at 923. In Horrell for example, the court explained that the agency “did not have the authority to determine the two constitutional issues asserted.” 861 P.2d at 1199. However, this exception does not apply to interpreting an agency's enabling act. Kendal v. Cason, 791 P.2d 1227, 1229 (Colo.App.1990).

Nevertheless, plaintiffs argue that the exhaustion requirement applies only to quasi-judicial action, not to the quasi-legislative (i.e., rulemaking) action at issue here. We discern no such absolute rule. Compare Dill v. Bd. of County Comm'rs, 928 P.2d 809, 815 (Colo.App.1996) (exhaustion “is not necessarily a prerequisite to establish standing when issues presented to the court depend on interpretation of legislation adopted by a governmental entity”), with Colo. Ground Water Comm'n v. Eagle Peak Farms, Ltd., 919 P.2d 212, 219 (Colo.1996) (referencing the exhaustion requirement in the context of a “rulemaking proceeding”). Unlike in Dill, exhaustion would not force plaintiffs to establish finality by violating a rule and risking sanctions before challenging the rule, which is permissive, not prohibitory.

Moreover, while the record does not show that plaintiffs participated in the Division's prior rulemaking, they respond to the Division's assertion that they did so by explaining: “the area of Sugar Loaf Mountain at issue in the 2005 rulemaking was not the area covered by Resolution 80–52, and that petition was neither premised nor resolved on issues relating to the preemption of the State Defendants regulation.” See Ass'n of Flight Attendants–CWA v. Chao, 493 F.3d 155, 158–59 (D.C.Cir.2007) (applying exhaustion where, despite a prior rulemaking petition denied ten years earlier, plaintiffs did not “petition the agencies directly for the relief they seek in this lawsuit”). Thus, requiring plaintiffs to do so now would further the objectives of exhaustion—drawing on agency expertise, furthering judicial economy by affording the Division an opportunity to resolve the issue in their favor, and creating a better record for judicial review.

We review a motion to dismiss for lack of subject matter jurisdiction under a mixed standard: a trial court's evidentiary findings are reviewed for clear error and its legal conclusions are reviewed de novo. Bazemore, 64 P.3d at 878.

V. ...