June 17, 2019

Colorado Court of Appeals: Special District May Regulate Use of Property It Owns

The Colorado Court of Appeals issued its opinion in Aspen Springs Metropolitan District v. Keno on Thursday, July 16, 2015.

Metropolitan District—Real Property—Trespass—Willful—Fence Law—Contempt—Remedial Sanctions—Purge Clause.

Keno maintained a flock of sheep and grazed it on a parcel of land known as the “Greenbelt.” The Greenbelt was owned by Aspen Springs Metropolitan District (Aspen Springs). In 2011, the Aspen Springs Board passed a resolution prohibiting the grazing or tethering of livestock on the Greenbelt without the Board’s prior written permission. Keno continued to graze his sheep on the Greenbelt, and Aspen Springs sought an injunction preventing the grazing. Keno nonetheless continued to pasture his sheep on the Greenbelt and had twice been found in contempt by the time the court issued its final judgment permanently enjoining Keno from allowing his animals to graze on the Greenbelt.

On appeal, Keno contended that, as a special district and creature of statute, Aspen Springs lacks authority to regulate the use of property it owns. Among the express powers granted to special districts are the powers “[t]o acquire, dispose of, and encumber real and personal property including, without limitation, rights and interests in property, leases, and easements necessary to the functions or the operation of the special district.” The right to own property is necessary to these express powers. Property ownership generally includes the power to exclude others. Therefore, a special or metropolitan district may regulate the use of and access to property it owns. Accordingly, the district court did not err in holding that Aspen Springs has the power to prohibit and limit grazing activities on the Greenbelt.

Keno also contended that the district court erred in concluding that the Fence Law protects Aspen Springs from a willful trespass onto the Greenbelt, despite the fact the Greenbelt is unenclosed by a lawful fence. The Fence Law does not protect livestock owners who deliberately pasture their livestock on unenclosed lands of another, particularly when done against the owner’s will. Accordingly, the district court did not err in concluding that the Fence Law protects Aspen Springs from willful trespass onto its property.

Keno further asserted that the court erred in awarding attorney fees and costs as a remedial sanction after finding him in contempt a second time for violating the preliminary injunction. A remedial sanction must include a purge clause. Because the sheep grazing activities that resulted in Keno’s contempt citation were not ongoing at the time of the contempt hearing, Keno could not purge his contempt because he could not undo what he had done. Therefore, remedial sanctions, such as the assessment of costs and attorney fees, could not be imposed against Keno under these circumstances, and the trial court erred in awarding them. Instead, the court could impose only punitive sanctions. The judgment was affirmed in part and the order was vacated in part.

Summary and full case available here, courtesy of The Colorado Lawyer.

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