Rags Over the Ark. River, Inc. v. Parks

Citation360 P.3d 186
Decision Date12 February 2015
Docket NumberCourt of Appeals No. 13CA1931
PartiesRAGS OVER THE ARKANSAS RIVER, INC., a Colorado not-for-profit corporation, Plaintiff–Appellant, v. COLORADO PARKS AND WILDLIFE BOARD, f/k/a Colorado Board of Parks and Outdoor Recreation; Colorado Division of Parks and Wildlife, f/k/a Colorado Division of Parks and Outdoor Recreation; and Colorado Department of Natural Resources, Defendants–Appellees, Over the River Corporation, a Colorado corporation, Intervenor–Appellee.
CourtCourt of Appeals of Colorado

Davis Graham & Stubbs LLP, Richard Kirk Mueller, Constance L. Rogers, Geoffrey C. Klingsporn, Mave A. Gasaway, Denver, Colorado, for PlaintiffAppellant.

Cynthia H. Coffman, Attorney General, Tim Monahan, First Assistant Attorney General, Elaine J. Wizzard, Assistant Attorney General, Denver, Colorado, for DefendantsAppellees.

Kaplan Kirsh & Rockwell LLP, John E. Putnam, Lori Potter, Denver, Colorado, for IntervenorAppellee.

Opinion

Opinion by JUDGE DUNN

¶ 1 No doubt Colorado is a state blessed with natural beauty. Seeking, in their view, to highlight this beauty, several years ago artists Christo and Jeanne–Claude began a quest to install a large-scale art display over the Arkansas River (the Project). Over a decade after the initial application, the Colorado Division of Parks and Outdoor Recreation (Parks Division), through its Board,1authorized the Project.

¶ 2 Rags Over the Arkansas River, Inc. (ROAR), a nonprofit organization, seeks judicial review of the Parks Division's authorization of the Project, contending that the approval was arbitrary and capricious. Namely, ROAR alleges that the Parks Division: (1) failed to follow its regulations for issuing special activities permits and (2) unreasonably approved the Project contingent upon (a) authorization of the Project by the Bureau of Land Management (Bureau) and (b) implementation of mitigation requirements to be included in a not-yet-final federal Environmental Impact Statement.

¶ 3 We agree that the Parks Division's failure to adhere to its own special activities permit regulation in approving the Project was arbitrary. Because ROAR is unable to demonstrate prejudice as a result of the procedure by which the Project was approved, however, we nonetheless affirm the Parks Division's approval of the Project.

I. Factual Background

¶ 4 The Arkansas Headwaters Recreation Area (AHRA) consists of a 148–mile stretch of river and surrounding land designated for outdoor pursuits including rafting, fishing, camping, and sightseeing. The AHRA is primarily managed by the Parks Division, but a majority of the land is federally owned and is thus under the Bureau's partial jurisdiction.

¶ 5 In 1996, Christo and Jeanne–Claude first approached the Parks Division to discuss their vision to suspend translucent fabric panels over approximately six miles of the Arkansas River. The fabric panels would roughly follow the changing width and course of the river and would be broken into several sections along the river's corridor. In the artists' view, the effect of the light passing through the overhead fabric would enhance the beauty of the river and its surroundings.

¶ 6 The artists formed Over the River Corporation (OTR), an intervenor in this action, to facilitate the Project. In accordance with the Parks Division's regulations, OTR applied for a special activities permit for the Project in 1997.

¶ 7 From 1997 until 2001, the Parks Division and the Board, in collaboration with other federal, state, and local agencies, began analyzing the possible impacts of the Project. Environmental, economic, safety, infrastructure, and wildlife impacts were the paramount concerns.

¶ 8 For a variety of reasons, the Project was largely dormant between 2001 and 2006. In 2007, the Parks Division and the Board entered into a formal agreement with the Bureau and other state and local agencies to coordinate further evaluation of the Project and to assist in the preparation of a federal Environmental Impact Statement. The formal agreement stated that the Parks Division would coordinate with other state agencies to ensure that all agencies were aware of the necessary mitigation requirements identified in the final Environmental Impact Statement before authorizing the Project.

¶ 9 Unrelated to the Project, the Parks Division and the Colorado Wildlife Commission were slated to merge in the summer of 2011. In May, shortly before the merger, the Wildlife Commission notified the Parks Division, the Bureau, and other participating agencies that it opposed the Project because of its impact on certain wildlife populations, including bighorn sheep and golden eagles.

¶ 10 Several days after the Wildlife Commission voiced its opposition, OTR sought a decision from the Parks Division on the Project. To that end, OTR presented a draft cooperative agreement for the Board's consideration. Although the Board had previously announced its intent to wait for the final Environmental Impact Statement to be issued before authorizing the Project, the Board decided to move forward with assessment of the Project. The Board also began negotiating approval of the Project through the cooperative agreement proposed by OTR, rather than issuing a special activities permit under its regulations.

¶ 11 A week before the Parks Division merged with the Wildlife Commission, the Board voted to authorize the Project through a memorandum of agreement (the Agreement) with OTR. The Agreement authorized OTR to install, exhibit, and remove the Project subject to a number of conditions. OTR agreed to, among other things, provide the Parks Division with a detailed Project schedule, pay a recreation impact fee, and implement mitigation measures after the Project's completion.

¶ 12 Final approval, however, was expressly conditioned upon the Bureau's authorization of the Project and compliance with “measures developed by the [Bureau] which are intended to mitigate the adverse environmental impacts of the OTR Project, require the implementation of the mitigation measures by OTR and provide for monitoring and enforcement of these mitigation measures.”

¶ 13 ROAR sued the Parks Division in district court, seeking judicial review of the Project's approval. Among other relief requested, ROAR sought to enjoin the Project. In a written order entered on the pleadings, the district court concluded that the Board's approval of the Project through the Agreement was not arbitrary and capricious. As well, the court concluded that the agency's decision to approve the Project, reached after considering the impacts to the AHRA, was supported by sufficient record evidence. Accordingly, the court affirmed the Board's decision and dismissed ROAR's complaint.

II. Standard of Review

¶ 14 Our review of agency action is highly deferential. Coffman v. Colo. Common Cause,102 P.3d 999, 1005 (Colo. 2004). We must affirm an agency's decision unless we find that it is, among other things, arbitrary and capricious; in excess of statutory jurisdiction, authority, purposes, or limitations; an abuse of discretion; based upon erroneous findings of fact; or unsupported by substantial evidence. § 24–4–106(7), C.R.S. 2014; Well Augmentation Subdistrict of Cent. Colo. Water Conservancy Dist. v. City of Aurora,221 P.3d 399, 417–18 (Colo. 2009).

III. The Parks Division's Review and Approval of the Project

¶ 15 The General Assembly delegated the authority to develop regulations for management of the state parks and recreation areas and development of outdoor recreation programs to the Parks Board. See§§ 33–10–106, –107, C.R.S. 2014.2

¶ 16 Consistent with this statutory guidance, the Board issued regulations to manage the use of state parks and recreation areas. See Dep't of Natural Res., 2 Code Colo. Regs. 405–1:100to –8:807. The regulations outline procedures for allowing members of the public to obtain a permit to conduct a special activity on areas under the Parks Division's jurisdiction. See 2 Code Colo. Regs. 405–1:100, 1:101, 7:703.

¶ 17 The regulation broadly defines “special activities” as “those events which have the potential for a significant adverse impact on park values or the health, safety or welfare of park visitors or which may otherwise require special planning/scheduling for proper management.” 2 Code Colo. Regs. 405–1:101(a). And the regulation states that [s]pecial activities shall require prior approval in the form of a Special–Activities Permit.”Id.

¶ 18 A person or entity seeking a permit must apply at least ninety days prior to the proposed event and pay a filing fee. 2 Code Colo. Regs. 405–7:703(1). The decision to approve special activities permits is made by the park manager or, in some cases, the regional manager. Id. at 405–7:703(2). Whether a permit is issued depends on several factors, such as the nature of the particular park, the size of the activity, the burden on park staff, and the impact on the park. Id. A permit will not be granted if the special activity would have a significant adverse impact on park values or the relevant area management plan. Id. at 405–7:703(3).

A. Pursuit of Project Approval Under the Special Activities Regulation

¶ 19 In accordance with these regulations, OTR applied for a special activities permit for the Project in 1997. Because of the scale of the Project, the Parks Division formed a multi-agency permit planning team to analyze the application.

¶ 20 For roughly thirteen years, OTR, the Parks Division, and the Board treated the Project as a special activity and proceeded under the special activities permit regulation:

• At a 1997 public outreach meeting, members of the permit team thanked the public for “participating in the process of determining if a permit should be granted or denied to Christo and Jean[ne]–Claude.”
A 1997 analysis of the Project noted that a Colorado State Parks Special Event Permit was needed.
• In 1998, the Board wrote that, per the regulations, the
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