10th Circuit Court of Appeals Oral Argument Previews Nov. 15-18

Byron White U.S. Courthouse
The 10th Circuit Court of Appeals holds oral arguments this week. On the docket are notable Colorado cases including Denver Homeless Out Loud v. Denver and High Country Conservation v. U.S. Forest Service. / Law Week file.

The 10th Circuit Court of Appeals has a full schedule for oral arguments this week. From Nov. 15 through Nov. 18, the federal appeals court will hear roughly 70 cases from Colorado, Oklahoma, Kansas, New Mexico, Wyoming and Utah. 

On the docket are 18 Colorado cases. Here are a few of the local appeals that Law Week is keeping an eye on. 

Denver Homeless Out Loud v. Denver

Judges Carolyn McHugh, Michael Murphy and Veronica Rossman will hear a civil rights challenge to homeless camp sweeps during the pandemic on Nov. 16. 

The case stems from a class action complaint filed in October 2020 by Denver Homeless Out Loud and a handful of plaintiffs experiencing homelessness. The suit challenged sweeps during the COVID-19 pandemic and alleged city officials violated a 2019 settlement agreement. The complaint claimed a long list of defendants, including state and city officials, violated the Fourth Amendment, the 14th Amendment, several Colorado laws and breach of contract. The American Civil Liberties Union of Colorado filed an amicus brief in support of the class action challenge. 

Denver Homeless Out Loud pointed out that, even with the most conservative estimates, Denver does not have enough beds in homeless shelters to sleep everyone on the streets. It added that staying in shelters poses a heightened risk of catching COVID-19 and that CDC guidance at the time advised against conducting sweeps due to the pandemic. 

On Jan. 25, federal Judge William Martinez issued a preliminary injunction in the case after three days of testimony from both parties. The injunction ordered Denver to provide a written, seven-day notice before conducting sweeps and email the plaintiff’s counsel and any city council member representing the district where the sweep will occur. They must be notified within seven days of a sweep and 48-hour notice emergency sweeps are allowed only in the event that health authorities find there’s a justifiable public health risk. 

In March, the 10th Circuit Court of Appeals rejected Denver’s stay of preliminary injunctive relief pending appeal. Judge Carlos Lucero dissented from the majority’s decision to uphold the preliminary injunction. He criticized the lower court’s ambiguous definition of encampment and expressed that requiring 48 hours’ notice for public health emergency sweeps posed irreparable harm to Denver due to the pandemic. 

High Country Conservation v. United States Forest Service

On Nov. 17, Judges Nancy Mortiz, Paul Kelly, Jr. and Mary Beck Briscoe will hear arguments in the latest litigation in a long-running dispute over road construction and coal leases in national forest lands near the Gunnison River. 

The latest litigation, brought in October 2020, claims that in the two months between a 10th Circuit order and a district court’s remand that reversed a road-building exception on national forest land, Mountain Coal Company, LLC “bulldoze[d] nearly one mile of road and one acre of drill pads in the protected area.” Since the district court had not entered the vacated order by the time of construction, the U.S. Forest Service allowed any subsequent construction and use of the roads for mining, the complaint claims. 

Last year, the 10th Circuit granted a motion brought by High Country Conservation and other plaintiffs barring the mining company from further developing the road pending appeal. 

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