ROCKY MT. ANIMAL DEFENSE v. Colo. Div. of Wildlife, 02CA0503.

Citation100 P.3d 508
Decision Date25 March 2004
Docket NumberNo. 02CA0503.,02CA0503.
PartiesROCKY MOUNTAIN ANIMAL DEFENSE, Plaintiff-Appellant and Cross-Appellee, v. COLORADO DIVISION OF WILDLIFE; Russell George, in his official capacity as Director of the Colorado Division of Wildlife; Colorado Department of Natural Resources; Greg Walcher, acting in his official capacity as Executive Director of Colorado Department of Natural Resources; Colorado Wildlife Commission; Bernard L. Black, Jr., Mark Levalley, Tom Burke, Olive Valdez, Phil James, Rick Enstrom, Marianna Raftopoulos, and Robert Shoemaker, in their official capacities as members of the Wildlife Commission; Colorado Department of Agriculture; Don Ament, in his official capacity as Commissioner of the Department of Agriculture; Ken Salazar, in his official capacity as Attorney General; and Bill Owens, in his official capacity as Governor, Defendants-Appellees and Cross-Appellants.
CourtCourt of Appeals of Colorado

Certiorari Denied November 15, 2004.1

Haddon, Morgan, Mueller, Jordan, Mackey & Foremon, P.C., Ty Gee, Denver, Colorado; Jennifer L. Melton, Kim, Colorado, for Plaintiff-Appellant and Cross-Appellee.

Ken Salazar, Attorney General, Timothy J. Monahan, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees and Cross-Appellants Colorado Division of Wildlife, Russell George, Colorado Department of Natural Resources, Greg Walcher, Colorado Wildlife Commission, Bernard L. Black, Jr., Mark Levalley, Tom Burke, Olive Valdez, Phil James, Rick Enstrom, Marianna Raftopoulos, Robert Shoemaker, Ken Salazar, and Bill Owens.

Ken Salazar, Attorney General, David Joeris, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees and Cross-Appellants Colorado Department of Agriculture and Don Ament.

Opinion by Judge WEBB.

This action seeks a declaratory judgment, an injunction, and mandamus relief concerning article XVIII, § 12b (Amendment 14) of the Colorado Constitution, which prohibits trapping and poisoning of wildlife subject to limited exceptions.

Plaintiff, Rocky Mountain Animal Defense, appeals the judgment entered after a bench trial refusing injunctive or mandamus relief and declaring that the amendment does not prohibit poisoning of nontargeted wildlife incidental to prairie dog poisoning, which is lawful under an exception in the amendment that allows poisoning of rodents. Defendants, Colorado Division of Wildlife, Colorado Department of Natural Resources, Colorado Wildlife Commission, and Colorado Department of Agriculture (collectively, the agencies), along with various persons associated with them, cross-appeal the court's determination that Rocky Mountain has standing and its finding that the agencies have not taken sufficient steps to minimize so-called incidental poisoning. We affirm.

In 1996, the voters approved Amendment 14, which provides:

(1) It shall be unlawful to take wildlife with any leghold trap, any instant kill body-gripping design trap, or by poison or snare in the state of Colorado.
(2) The provisions of subsection (1) of this section shall not prohibit:
(a) The taking of wildlife by use of the devices or methods described in subsection (1) of this section by federal, state, county or municipal departments of health for the purpose of protecting human health or safety;
(b) The use of the devices or methods described in subsection (1) of this section for controlling:
(I) wild or domestic rodents, except for beaver or muskrat, as otherwise authorized by law; or
(II) wild or domestic birds as otherwise authorized by law;
(c) The use of non-lethal snares, traps specifically designed not to kill, or nets to take wildlife for scientific research projects, for falconry, for relocation, or for medical treatment pursuant to regulations established by the Colorado wildlife commission; or
(d) The use of traps, poisons or nets by the Colorado division of wildlife to take or manage fish or other non-mammalian aquatic wildlife.
(3) Notwithstanding the provisions of this section 12, the owner or lessee of private property primarily used for commercial livestock or crop production, or the employees of such owner or lessee, shall not be prohibited from using the devices or methods described in subsection (1) of this section on such private property so long as:
(a) such use does not exceed one thirty day period per year; and
(b) the owner or lessee can present on-site evidence to the division of wildlife that ongoing damage to livestock or crops has not been alleviated by the use of non-lethal or lethal control methods which are not prohibited.

The General Assembly enacted enabling legislation, which made unlawful the taking of wildlife by poison and other methods, subject to exceptions paralleling those in the amendment. Section 33-6-201, et seq., C.R.S.2003 (enabling statute).

Rocky Mountain alleges that, because the amendment prohibits all poisoning of wildlife other than wildlife targeted under the exceptions, the agencies are violating Amendment 14 by poisoning nontargeted wildlife and not taking action to prevent others from poisoning nontargeted wildlife in connection with poisoning prairie dogs. The legality of poisoning prairie dogs is not disputed.

The trial court found that "protected wildlife frequent some prairie dog burrows and are present when prairie dogs are poisoned." It explained, "The testimony established that some 208 species use prairie dog colonies to varying degrees and that approximately 20 use their burrows," including "rabbits, salamanders, snakes, and other reptiles and herbtiles." The court concluded that the presence of nontargeted species gives rise to "a significant risk of unnecessary and illegal killing of protected species when proper precautionary steps are not taken."

Based on these findings, the court framed the declaratory judgment issue as reconciling the conflict among the amendment's broad prohibition against poisoning wildlife, its express authorization to poison rodents (which include prairie dogs), and the probability that nontargeted wildlife located in and around prairie dog burrows would incidentally be poisoned when prairie dogs are poisoned.

The court declared that Amendment 14 permits an "incidental taking (unintended and unexpected) of protected wildlife when prairie dogs are poisoned." The court accepted the agencies' position that such incidental taking required "the poisoner to minimize the risk to other species using a negligence/carelessness standard."

The court then found that the agencies have never issued a citation for the unlawful poisoning of other wildlife which occurred while poisoning prairie dogs, despite the high likelihood that such poisoning occurred; that the agencies have not implemented regulations requiring prepoisoning observation or postpoisoning investigation of prairie dog colonies, actions which the court found would minimize the risk to nontargeted wildlife; and that the agencies have "failed to minimize the taking of protected species."

As "summary statements of declaratory judgment rulings and determinations of the parties' rights and responsibilities," the court stated that the agencies' enforcement officers "are not adequately trained on prairie dog colony biology"; to minimize incidental taking, applicators and poisoners should spend "far more time observing, recording and investigating the burrows, and making follow-up assessments"; "a detailed protocol should be implemented by the agencies"; the agencies' enforcement officers should thoroughly explain to poisoners "relocation and other alternatives [that] minimize the risk to protected species"; the officers should monitor "poisoners' observations and investigations" of prairie dogs burrows; the officers should communicate to all applicators and poisoners "that it violates the Colorado constitution's incidental taking rule to poison a prairie dog burrow" if evidence shows other species to be present; and use of zinc phosphate oatgrains, which "is less likely to harm protected species," should be "positively discussed" with applicators and poisoners.

However, the court declined to grant injunctive or mandamus relief. It explained that "fashioning a precise and proper response to my declaratory judgment orders... is best left to the Defendants."

I. Standing

We first address standing because it is a threshold question of law. Hall v. Walter, 969 P.2d 224 (Colo.1998). On cross-appeal, the agencies argue the trial court erred in concluding that Rocky Mountain has standing. Although Rocky Mountain contends this argument was not timely raised, standing may be raised at any time. Peters v. Smuggler-Durant Mining Corp., 910 P.2d 34 (Colo.App.1995), aff'd, 930 P.2d 575 (Colo.1997). We agree with the trial court that Rocky Mountain has standing.

Because standing is necessary to invoke a court's jurisdiction, an appellate court reviews the trial court's determination de novo. Friends of Black Forest Reg'l Park, Inc. v. Bd. of County Comm'rs, 80 P.3d 871 (Colo.App.2003). In determining whether standing has been established, all averments of material fact in a complaint must be accepted as true. Opie v. Denver Classroom Teachers Ass'n, 701 P.2d 872 (Colo.App.1985).

A plaintiff has standing if he or she has an "injury in fact" and the injury is to a "legally protected interest." Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977). The injury in fact test does not require that the plaintiff demonstrate an economic injury. "[H]arm to intangible values is sufficient." Friends of Black Forest Reg'l Park, supra, 80 P.3d at 877.

To be a "legally protected interest" for purposes of standing, the interest the complainant seeks to protect must be arguably within the zone of interests to be protected. Friends of Black Forest Reg'l Park, supra. Aesthetic and ecological interests are generally sufficient. City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427 (Colo.2000); Friends of...

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