A (Fourth) Day in Court

Colorado Court of Appeals Hears Oral Arguments in 37-Year Civil Case

The Colorado Supreme Court considered the ongoing effects of historic contamination in applying waivers to governmental immunity / LAW WEEK FILE

After 37 years and tens of thousands of pages of official record, the Colorado Court of Appeals heard the fourth appeal in a land access case out of Costilla County that puts the property rights of about 5,000 parcel owners in question. Dozens of the case’s plaintiffs packed the first-floor courtroom and the Supreme Court room for overflow capacity to watch a live feed of the arguments.  

The defense’s appeal in Alire v. Cielo Vista Ranch focused on the administrative process implemented by the trial court on remand to determine property access rights after the Colorado Supreme Court issued two opinions in 2002. Spencer Fane partner Ron Fano, who appeared for Cielo Vista Ranch, argued the trial court improperly applied the Supreme Court’s findings in Lobato I and II by granting profit rights to thousands of property owners without giving notice to most of them, requiring them to make claims of their property rights, or requiring an evidentiary hearing or to present proof.

But according to the plaintiffs’ arguing attorney, Squire Patton Boggs senior associate Aaron Boschee, the ranch’s owner has not claimed any harm as a result of the administrative process or because of the property owners’ use of the land. The relief they are seeking is unclear, he said, since they have only challenged the process rather than its outcome.

“There is nothing in the Supreme Court opinions in Lobato I or Lobato II that excused the trial court from following Rule 105 or the standard process whereby people become parties to a case, they make claims, the defendants are able to confront those claims and those people and the evidence,” Fano said. In actuality, he said, the Supreme Court stated in Lobato II its intent for a process of plaintiffs making claims and meet a burden of proof to show their property rights.

The lawsuit dates back to 1981 when agricultural landowners in Costilla County claimed access to a more than 77,000-acre parcel of land now called Cielo Vista Ranch. The plaintiffs traced ancestral access rights for livestock grazing and timber collection to a document from 1863, in which Carlos Beaubien promised settlers free access to his million-acre land grant.

Jack Taylor, a lumber tycoon, had bought part of the land grant in 1960 — it was for a period known as Taylor Ranch — and later attempted to put an end to the residents’ access rights. The 1981 class-action suit claimed a violation of due process. In 2002, the Colorado Supreme Court ruled the landowners had the same access rights promised to the original settlers in Beaubien’s 1863 document. The U.S. Supreme Court allowed the decision to stand.

On remand, the trial court appointed a title examiner to research and identify present-day owners whose property could be traced to Costilla County records from 1894, referred to as Map A and Book E in the case record. The Supreme Court had determined in its Lobato II decision that linking present-day ownership to property in the 1894 records was the best evidence for meeting the applicable burden of proof for property rights.

Judges Elizabeth Harris and Craig Welling pressed Fano to elaborate on the harm caused by the trial court’s alleged error. Harris asked if the administrative process resulted in erroneously granting property access rights to some people. Fano responded it’s not possible to know. Also problematic, he said, is that the defense did not have a chance to examine the title company’s body of work to understand its finding that Map A and Book E provided evidence of title settlement. 

Judge John Webb asked Fano to explain further why property records do not provide sufficient proof of ownership and related property rights. 

“Property ownership is a matter of public record,” Webb said. “So if the title company comes in and says John Webb owns a lot within the Map A/Book E area, what are you going to confront me about?” 

Problematic in addition to the defense not having the opportunity to vet the title examiner’s process, Fano said, is the lack of finality from the administrative process that did not require property owners to become parties to the case. 

“Due process was not served here, because the court went to its administrative process and didn’t make anybody subject to the case,” he said. Fano added the trial court should have also analyzed whether certifying a class of plaintiffs was appropriate for the case, because the property claims of the thousands of landowners may not have been identical to each other.

Fano argued the trial court should have used the same process it used to adjudicate access rights for property south of a boundary line dividing Costilla County to residents who did not own property within the Map A and Book E area. 

Those property owners were mailed notice of their right to make claims to prove access rights. They did not have the presumption of access rights given to property owners who held property in the Map A and Book E area. The court notified the owners that they did not have to make claims and not doing so wouldn’t bar them from pursuing future claims. Out of 23,000 notices mailed, about 1,000 property owners made claims, and access rights to about 350 additional land parcels were granted. In total, Costilla County residents are claiming access rights to more than 6,000 parcels of land.

Boschee argued the ranch owner has not raised any claims that the holders have exercised their property rights unreasonably — such as excessive livestock grazing or trespass — that would justify class-wide limitations on their access. He said the owner has also not argued that any particular residents have been erroneously granted property access rights. 

“It’s unclear what relief the ranch owner wants,” he said. He said the adjudication process using Map A and Book E made it clear access holders within the area have property access rights. Boschee added the ranch owner appears to conflate the use of common evidence with communal rights, equating the ability for all the access holders to use Map A and Book E to prove their access rights with a lack of need to make a claim for those rights. 

Harris said from her understanding, the defendants are seeking finality in the case. 

“It did seem as though the process will not achieve finality, is not designed to achieve finality, and that seems like it could be a problem,” she said. 

Welling asked Boschee whether determining if property use access was granted too broadly should be subject to a harmless error analysis because the title examiner’s work has not been disputed. Boschee said the the defendants did have the opportunity to bring in a title expert of their own to examine the report but did not.

After the arguments concluded, Welling noted the public importance of the case, recognizing both the time hundreds of attorneys have put into it over the decades and the Costilla County residents it affects.

“Your excellent work makes our decision in one respect more difficult, but easier at the same time that it has been so well presented to us.”

— Julia Cardi

Previous articleKavanaugh Appears Headed for Confirmation
Next articleSupreme Court Back in Session


Please enter your comment!
Please enter your name here