Sportsmen's Wildlife Defense Fund v. Romer, Civ. 97-B-737.

• Decision Date: 11 December 1998
• Docket Number: No. Civ. 97-B-737.,Civ. 97-B-737.
• Citation: 29 F.Supp.2d 1199
• Parties: SPORTSMEN'S WILDLIFE DEFENSE FUND, a non-profit corporation; Western Slope Environmental Resource Council, a non-profit citizens group; Richard Saxton, an individual; and David Huerkamp, an individual, Plaintiffs, v. Roy ROMER, in his official capacity as the Governor of the State of Colorado; John Mumma, in his official capacity as Director of the Colorado Division of Wildlife; Aristede Zavaras, in his official capacity as Director of the Colorado Department of Corrections United States Fish and Wildlife Service; John Rodgers, in his official capacity as Acting Director of the United States Fish and Wildlife Service; Defendants.
• Court: U.S. District Court — District of Colorado

29 F.Supp.2d 1199

SPORTSMEN'S WILDLIFE DEFENSE FUND, a non-profit corporation; Western Slope Environmental Resource Council, a non-profit citizens group; Richard Saxton, an individual; and David Huerkamp, an individual, Plaintiffs, v. Roy ROMER, in his official capacity as the Governor of the State of Colorado; John Mumma, in his official capacity as Director of the Colorado Division of Wildlife; Aristede Zavaras, in his official capacity as Director of the Colorado Department of Corrections United States Fish and Wildlife Service; John Rodgers, in his official capacity as Acting Director of the United States Fish and Wildlife Service; Defendants.

No. Civ. 97-B-737.

United States District Court, D. Colorado.

December 11, 1998.

COPYRIGHT MATERIAL OMITTED

Dawn M. McKnight, Earthlaw, Denver, CO, Colin C. Deihl/Jessica Toll, Faegre & Benson LLP, Denver, CO, for plaintiffs.

Robert D. Clark, Assistant U.S. Attorney, Denver, CO, Thomas R. Graf, U.S. Dept. of the Interior, Lakewood, CO, Timothy J. Monahan, Assistant Attorney General, Natural Resources Section, Denver, CO, John A. Lizza, First Asst. Attorney General, State Services Section, Denver, CO, for defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

In this environmental dispute, plaintiffs, Sportsmen's Wildlife Defense Fund (SWDF), Western Slope Environmental Resource Council (WSERC), Richard Saxton, and D avid Huerkamp (collectively, Plaintiffs) assert claim one pursuant to 42 U.S.C. § 1983 for violation of the Pittman-Robertson Wildlife Restoration Act (P-R Act); 16 U.S.C. § 669 et seq. against defendants Roy Romer, in his official capacity as the Governor of the State of Colorado, John Mumma, in his official capacity as Director of the Colorado Division of Wildlife (DOW), Aristede Zavaras, in his official capacity as Director of the Colorado Department of Corrections (DOC) (collectively, State Defendants). Plaintiffs bring claims two and three for violation of the Administrative Procedures Act (APA), 5 U.S.C. §§ 701-706, against defendants United States Fish and Wildlife Service (USFWS) and John Rodgers, in his official capacity as Acting Director of the United States Fish and Wildlife Service (collectively, Federal Defendants). Pursuant to Fed. R.Civ.P. 56 all Defendants move for summary judgment on the claims brought against them. Plaintiffs cross-move for summary judgment. After consideration of the motions, briefs, and counsels' argument, I grant Defendants' motions in part and deny them in part. I deny Plaintiffs' cross-motion for summary judgment.

I. SUMMARY JUDGMENT STANDARD

The very purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995). Fed.R.Civ.P. 56 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

If a reasonable juror could not return a verdict for the non-moving party, summary judgment is proper and there is no need for a trial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, summary judgment should not enter if, viewing the evidence in a light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor, a reasonable jury could return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 252, 106 S.Ct. 2505; Mares, 971 F.2d at 494. Where, as here, the parties file cross motions for summary judgment, I assume that no evidence need be considered other than that filed by the parties. Nevertheless, summary judgment is inappropriate if disputes remain as to material facts. James Barlow Family Ltd. Partnership v. David M. Munson, Inc., 124 F.3d 1321, 1323 (10th Cir.1997).

II. Background

This action was filed by Plaintiffs to: 1) force the State Defendants to replace the portion of the Escalante State Wildlife Area (Wildlife Area) on which the DOC built a prison facility located near Delta, Colorado (Delta prison); and 2) prevent future misuses of state wildlife areas. Pltf. S.J. Cross-motion, p. 1.

In 1955, the State of Colorado proposed the creation of the Wildlife Area located on the eastern flank of the Uncompahgre Plateau in Delta and Montrose Counties in western Colorado. The Wildlife Area, comprised of 10 separate tracts of land totaling more than 7,000 acres, is scattered along the Gunnison River, and its two main western tributaries, Escalante and Roubideau Creeks. It consists of nearly 200 square miles of desert and forest acquired over a 20 year period. See Wildlife Area Map, Ex. 3.

The Delta prison, originally known as the Delta Honor Camp, was built in the mid-1960's on approximately 80 acres of the 2,480 acre Lower Roubideau Tract of the Wildlife Area, the largest of the Wildlife Area's 10 tracts. Situated five miles west of Delta, Colorado, at the confluence of Roubideau Creek and the Gunnison River, the Delta prison, currently known as the Delta Correctional Center, functions as a minimum security correctional facility. Id.

In 1994, the SWDF initiated an inquiry into how a prison came to be located in a state wildlife area. Pltfs. S.J. Cross-Motion, p. 2. As a result, the State of Colorado entered into certain agreements with the State and Federal defendants to avoid or remedy any possible improprieties. Unsatisfied with the Defendants' actions, Plaintiffs filed suit in 1997 claiming that the State Defendants are violating the P-R Act and the Federal Defendants have violated the APA by allowing them to continue to violate the P-R Act.

III.

A. The Property At Issue

This case involves the following parcels of land within the Lower Roubideau Tract of the Wildlife Area:

1. 82.74 acres (82.74 acre tract or prison compound)

This tract is located in the southeast corner of the Lower Roubideau Tract where the DOC has constructed the Delta prison. Detail Map of Prison Compound, Ex. 9.

Funding: The parties disagree whether the money to purchase this property came from federal aid monies or license fee monies.

2. 13.5 acres (13.5 acre tract)

This tract is located directly north of the prison compound at the confluence of Cottonwood and Roubideau Creeks. See Detail Map, Ex. 9. This land was fenced by DOC from 1964 through 1996. Apparently, DOC plans to continue to use the 13.5 acre tract for certain purposes including "ingress and egress to DOC, for placement of signs, and for placement of security devices." Def's. Response to Pltfs. First Request for Admission, Admission No. 1, Ex. 10.

Funding: The parties agree that this parcel was purchased with federal aid monies.

3. 31 acres (31 acre tract)

This tract is located directly south of the prison compound along the west bank of Roubideau Creek. Pltfs. Ex. 9. DOC acquired the 31 acre tract from DOW. See Pltf. Ex. 11.

Funding: The parties disagree whether the funds to acquire this property came from federal aid monies or license fee monies.

4. Buffer zone around the prison (buffer zone)

Funding: The parties disagree about the source of the funds used to purchase this property, although they agree that some portion of the buffer zone was acquired with federal aid monies.

5. Paved access road and bridge (access road)

DOC constructed, or caused to be constructed, a paved access road to the prison which crosses the Lower Roubideau Tract and includes a bridge over Cottonwood Creek. Pltfs. Ex. 9. The access road was historically owned in fee simple by DOW. Recently, DOW transferred to Delta County, Colorado, a non-exclusive right-of-way to the access road. Pltfs. Ex. 35.

Funding: The parties agree that this property was originally purchased with federal aid monies.

The crux of this case, assuming there have been violations of the P-R Act, is:

1. whether federal monies or state license monies were used to purchase the pertinent property;

2. whether the State Defendants have a right to cure the violations and, if so 3. what actions are required to cure any violations depending on whether there was a "diversion" of state license monies or a "misuse" of federal monies.

Each of these questions is resolved with reference to the P-R Act.

B. Pittman-Robertson Act, 16 U.S.C. § 669, et seq.

The P-R Act provides in part:

[t]he Secretary of the Interior is authorized to cooperate with the States, through their respective State fish and game departments, in wildlife-restoration projects ...; but no money apportioned under this chapter to any State shall be expended ... until [the State] shall have assented to the provision (sic) of this chapter and shall have passed laws ... which shall include a prohibition against the diversion of license fees paid by hunters for any other purpose than the administration of said State fish and game department.... The Secretary of the Interior and the State fish and game department of each State accepting the benefits of this chapter, shall agree upon the wildlife-restoration projects to be aided in such State under the terms of this chapter. ...

16 U.S.C. § 669. Thus, the P-R Act provides federal matching grants to states for wildlife restoration projects funded jointly by a state and the USFWS. To qualify for federal matching funds, commonly referred to as "federal aid monies" or "P-R monies," a recipient state must agree to use its state hunting license fees solely for wildlife purposes. 16 U.S.C. § 669. The P-R Act...