3680300.7

COLORADO SUPREME COURT 2 East 14th Avenue Denver, CO 80203

���� COURT USE ONLY ����

Court of Appeals Case No. 2013CA1931 Opinion by Judge Dunn Judge Hawthorne concurs, Judge Dailey specially concurs

Appeal from the District Court of Denver County Judge Robert McGahey Case No. 11CV5226

Petitioner: RAGS OVER THE ARKANSAS RIVER, INC., a Colorado not-for-profit corporation;

v.

Respondents: COLORADO PARKS AND WILDLIFE, f/k/a COLORADO BOARD OF PARKS AND OUTDOOR RECREATION; COLORADO DIVISION OF PARKS AND WILDLIFE, f/k/a COLORADO DIVISION OF PARKS AND OUTDOOR RECREATION; and COLORADO DEPARTMENT OF NATURAL RESOURCES; Intervenor: OVER THE RIVER CORPORATION, a Colorado corporation.

Geoffrey C. Klingsporn, No. 38997 Richard Kirk Mueller, No. 16746 Constance L. Rogers, No. 31679 Mave A. Gasaway, No. 42183

Case No.

DAVIS GRAHAM & STUBBS LLP 1550 Seventeenth St. Suite 500 Denver, CO 80202 Tel: (303) 892-9400 Fax: (303) 893-1379 E-mail: geoff.klingsporn@dgslaw.com

kirk.mueller@dgslaw.com connie.rogers@dgslaw.com mave.gasaway@dgslaw.com

Attorneys for Petitioner Rags Over the Arkansas River, Inc.

PETITION FOR CERTIORARI

CERTIFICATE OF COMPLIANCE

I hereby certify that this petition complies with all applicable requirements

of C.A.R. 28 and 32, including all formatting requirements set forth in the

appellate rules. Specifically, the undersigned certifies that it complies with

C.A.R. 53(a) because it contains 3,549 words.

/s/ Geoffrey C. Klingsporn

Geoffrey C. Klingsporn, No. 38,997

- i -

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .............................................................................. ii

ISSUES PRESENTED FOR REVIEW ............................................................... 1

OPINION BELOW ............................................................................................. 1

JURISDICTION ................................................................................................. 1

STATEMENT OF THE CASE ........................................................................... 2

A. Statement of Relevant Facts ....................................................................... 2

B. Procedural History ...................................................................................... 5

ARGUMENT...................................................................................................... 6

I. THIS COURT SHOULD CORRECT THE COURT OF APPEALS

AND CLARIFY THE PROPER USE OF “HARMLESS ERROR”

DOCTRINE IN ADMINISTRATIVE LAW. ............................................ 7

II. THE COURT OF APPEALS’ DECISION PERMITS STATE

AGENCIES TO ABDICATE THEIR RESPONSIBILITIES AND

DEFER TO FEDERAL AGENCIES APPLYING FEDERAL LAW

AND FEDERAL STANDARDS. ........................................................... 11

CONCLUSION ................................................................................................ 16

- ii -

TABLE OF AUTHORITIES

Page

Cases

Cal. Wilderness Coal. v. U.S. Dep’t of Energy,

631 F.3d 1072 (9th Cir. 2011) ............................................................................... 8

Chostner v. Colo. Water Quality Control Comm’n,

2013 COA 111 ...................................................................................................15

Colo. Mun. League v. Mountain States Tel. & Tel. Co.,

759 P.2d 40 (Colo. 1988) .....................................................................................12

Landers v. Indus. Comm’n,

721 P.2d 1227 (Colo. App. 1986).......................................................................... 8

Nat. Res. Def. Council v. U.S. Forest Serv.,

421 F.3d 797 (9th Cir. 2005)................................................................................. 8

Nat’l Ski Areas Assn. v. U.S. Forest Serv.,

910 F. Supp. 2d 1269 (D. Colo. 2012) ................................................................... 8

Nw. Res. Info. Ctr. v. Nw. Power & Conservation Council,

730 F.3d 1008 (9th Cir. 2013) ............................................................................... 8

Shinseki v. Sanders,

556 U.S. 396 (2009) ............................................................................................. 9

Silverton Snowmobile Club v. U.S. Forest Serv.,

433 F.3d 772 (10th Cir. 2006) ............................................................................... 8

Statutes and Rules

§ 13-2-127, C.R.S. (2014) ......................................................................................... 1

§ 13-4-108, C.R.S. (2014) ......................................................................................... 1

§ 24-4-106(7), C.R.S. (2014) .............................................................................. 10, 12

2 C.C.R. § 405-1:101 ............................................................................................... 2

2 C.C.R. § 405-1:703 ............................................................................................... 2

2 C.C.R. § 405-7:703(2) ..........................................................................................14

2 C.C.R. § 405-7:703(3) .................................................................................... 14, 15

C.A.R. 49(a)(2) & (4) ............................................................................................... 7

C.A.R. 51 ................................................................................................................ 1

C.A.R. 52(b)(3) ....................................................................................................... 1

ISSUES PRESENTED FOR REVIEW

1. Where an agency arbitrarily and capriciously violated its own regulations,

did the court of appeals err by upholding the agency’s action based on speculation

that the result would have been the same if the regulations had been followed?

2. Where the Parks Board’s approval of the “Over the River” project was

expressly conditioned on the terms and conditions of a pending federal

Environmental Impact Statement (“EIS”), did the court of appeals err by upholding

the Parks Board’s deference to a federal decision, even though the final EIS did not

yet exist and the federal decision would be based on federal regulations and standards

rather than more stringent Colorado state permit requirements?

OPINION BELOW

The opinion of the court of appeals, as modified on denial of rehearing, was

published as 2015 COA 11M, and is attached as Appendix 1 (the opinion is cited

hereafter as “Op.”).

JURISDICTION

The court of appeals issued its opinion on February 12, 2015, and denied the

petition for rehearing on March 26, 2015. This Court has jurisdiction under

§§ 13-2-127 and 13-4-108, C.R.S. (2014), because this petition is filed within the time

prescribed by C.A.R. 51 and 52(b)(3).

- 2 -

STATEMENT OF THE CASE

A. Statement of Relevant Facts

In 1996, the artists Christo and Jeanne-Claude approached the Colorado

Division of Parks and Outdoor Recreation (“Parks”) with a plan to drape 5.9 miles of

translucent fabric panels across the Arkansas River, along approximately 50 miles of

the Bighorn Sheep Canyon between Cañon City and Salida.1 The artists dubbed this

installation “Over the River,” and formed Over the River Corporation (“OTR”) as a

special-purpose entity. In early 1997, OTR formally applied to Parks for a special

activity permit under 2 C.C.R. §§ 405-1:101 and 405-1:703. For the next fourteen

years, Parks, its Board, and OTR considered “Over the River” to be a “special

activity” under the agency’s permit regulations, and proceeded according to those

regulations.

In addition, Parks became a “cooperating agency” with the federal Bureau of

Land Management (“BLM”), to stay apprised of the federal environmental review

process. BLM began to prepare an Environmental Impact Statement to inform the

BLM’s decision regarding its separate, federal authorization for “Over the River.”

Throughout the permitting history of the Project, the Board consistently and

1 “Over the River” will, in the words of a previous Board resolution, “leave permanent, unnatural scars on the environment [and] the impacts to the wildlife who live along this corridor are not mitigable, . . .” and the Project “seriously compromises our ability to assure a quality, safe experience for the public.” S.R. CPW000502.

- 3 -

repeatedly stated its intent to wait until all Project impacts were known and mitigation

plans finalized through BLM before making its decision on a state permit.

All this changed in 2011. After new legislation was enacted to merge Parks

with another agency, the Division of Wildlife, the Board abandoned its earlier

determination to issue a “special activity” permit. Just prior to the merger, the

Division of Wildlife publicly announced its opposition to the Project, stating that

impacts to wildlife could not be mitigated. Instead of following the special activity

permit regulations, the Board hurriedly negotiated a “Memorandum of Agreement”

with OTR (the “Agreement”). In its final act before being subsumed into the new

Board of Parks and Wildlife, the Board approved the Agreement, and thus the

Project.

Rushing to finalize the Agreement, the Board also discarded its longstanding

plan to wait for the final EIS. Instead, the Agreement approved “Over the River”

contingent upon OTR’s compliance with terms and conditions to be established by

BLM at some point in the future.

ROAR—a citizens’ group formed to preserve and protect the headwaters of

the Arkansas River, the Bighorn Sheep Canyon, and their inhabitants—filed suit to

challenge the Board’s actions. The district court dismissed the suit, and ROAR

appealed.

- 4 -

In a 2-1 opinion, the court of appeals agreed with ROAR that the Board’s

refusal to follow its own regulations was arbitrary and capricious. The majority

opinion acknowledged that the agency’s impending merger drove the Board’s

unlawful decision:

• “[T]he Parks Division and the Colorado Wildlife Commission were slated to merge in the summer of 2011.” Op. ¶ 9.

• “In May, shortly before the merger, the Wildlife Commission notified [Parks] … that it opposed the Project …” Id.

• “Several days after the Wildlife Commission voiced its opposition … OTR presented a draft cooperative agreement” and Parks “began negotiating approval of the Project through the cooperative agreement proposed by OTR, rather than issuing a special activities permit under its regulations.” Op. ¶ 10.

• “A week before the Parks Division merged with the Wildlife Commission, the Board voted to authorize the Project through [the Agreement].” Op. ¶ 11.

Nevertheless, the court of appeals upheld the Board’s decision, concluding that

the Board’s actions were harmless. The court of appeals accepted Parks’ post hoc

reasoning that even “had the special activities permitting regulation been followed, a

permit would have issued and the outcome would have been the same.”

Op. ¶¶ 70-71. The court of appeals determined that the Board’s approval of the

Project was harmless, despite the lack of formal findings required by Board regulation,

or actual knowledge of what conditions would be placed on “Over the River” in the

- 5 -

final EIS, because “the Board was aware of mitigation conditions the Bureau would

likely include in the final [EIS].” Id. ¶ 62.

B. Procedural History

ROAR filed its Complaint against Parks, the Board, and the Division of

Natural Resources on July 22, 2011, seeking judicial review of the Board’s approval of

the Agreement, and declaratory and injunctive relief against implementation of the

Project. OTR intervened to defend the Agreement.

After the appeal was fully briefed, the district court sua sponte issued an “Order

Requesting Further Information,” inquiring whether the Agreement was under review

by the federal Interior Board of Land Appeals. Parks responded (correctly) that it was

not—rather, “[t]he IBLA and this Court are reviewing distinct final agency actions in

distinct jurisdictions.”

On September 5, 2013, the district court entered its order affirming the Board’s

decision and dismissing ROAR’s Complaint. The district court upheld the Board’s

decision to “change[] course” and negotiate the Agreement as “entitled to substantial

deference.” ROAR timely appealed. The court of appeals issued its opinion

upholding the Board’s decision on February 12, 2015. ROAR filed a petition for

rehearing, which was denied on March 26, 2015. On the same date, the court of

appeals issued a modified opinion, adding a footnote and correcting a sentence in the

- 6 -

original opinion that had mistakenly attributed to ROAR an argument actually put

forth by Parks. See Appendix 1.

ARGUMENT

This case involves fundamental tenets of administrative law. Due process

requires that an agency strictly adhere to its own properly promulgated procedures,

and a reviewing court is likewise required to strike down actions that violate those

procedures. Here, the court of appeals found that the Parks Board abandoned its

own permitting regulations in order to authorize “Over the River” through the

Agreement, and properly concluded that this decision was unlawfully arbitrary and

capricious.

The error of the court of appeals lies in its conclusion that ROAR, and the

public, suffered no prejudice when the Board short-circuited its own regulations. To

do so, the court of appeals misapplied the harmless error doctrine when it improperly

focused on the end result of the Agreement rather than the prejudice arising from the

procedural violations themselves. This Court should grant certiorari to clearly

express, for the first time, the proper role of “harmless error” analysis in

administrative appeals.

The court of appeals also erred by approving the Board’s reliance on a federal

EIS, and deference to federal terms and conditions, that did not yet exist. In effect,

- 7 -

the court of appeals ratified the Board’s abdication of its state-law responsibility to

evaluate “Over the River,” based on the unsupported conclusion that whatever

conditions the federal government would require would necessarily be sufficient to

comply with state law. By allowing state substantive and procedural requirements to

be subsumed into a future federal decision, the court of appeals decision endangers

the rights protected by Colorado’s Administrative Procedure Act, and also threatens

to undermine the proper functioning of our federalist system. This Court should take

the opportunity to reject the court of appeals’ suggestion that a state agency may

delegate its state-law duties to a federal agency, or that federal requirements may stand

in place of state regulations.

I. THIS COURT SHOULD CORRECT THE COURT OF APPEALS

AND CLARIFY THE PROPER USE OF “HARMLESS ERROR”

DOCTRINE IN ADMINISTRATIVE LAW.

This Court has never before clearly defined the parameters of harmless error in

the context of administrative law or Colorado’s Administrative Procedure Act

(“APA”). An opinion clarifying the proper role of harmless error in agency appeals

will prevent future courts from repeating the mistake made by the court of appeals,

and will prevent agencies from defending arbitrary and capricious acts by arguing, post

hoc, “we would have made the same decision anyway.” For those reasons, a writ of

certiorari is warranted here. See C.A.R. 49(a)(2) & (4).

- 8 -

Courts elsewhere have repeatedly warned that “[t]he role of harmless error in

the context of agency review is constrained.” Silverton Snowmobile Club v. U.S. Forest

Serv., 433 F.3d 772, 786 n.6 (10th Cir. 2006) (quoting Nat. Res. Def. Council v. U.S.

Forest Serv., 421 F.3d 797, 807 (9th Cir. 2005)). Harmless error analysis in

administrative law is perilous: because “harmless error is more readily abused there

than in the civil or criminal context,” the reviewing court “must exercise great caution

in applying the harmless error rule.” Nw. Res. Info. Ctr. v. Nw. Power & Conservation

Council, 730 F.3d 1008, 1020-21 (9th Cir. 2013) (quoting Cal. Wilderness Coal. v. U.S.

Dep’t of Energy, 631 F.3d 1072, 1091 (9th Cir. 2011)) (internal quotations and

alterations omitted); see Nat’l Ski Areas Assn. v. U.S. Forest Serv., 910 F. Supp. 2d 1269,

1277 (D. Colo. 2012) (same).

Most importantly, and most relevant here, a court reviewing agency action must

“focus on the process as well as the result” because “an agency could always claim

that it would have adopted the same rule even if it had complied with [proper]

procedures.” Cal. Wilderness Coal., 631 F.3d at 1090 (emphasis added); Nat’l Ski Areas,

910 F. Supp. 2d at 1277-78. This comports with Colorado precedent. See Landers v.

Indus. Comm’n, 721 P.2d 1227, 1230 (Colo. App. 1986) (rejecting agency’s harmless

error defense because “[r]egardless of the merits of [his] claim… [plaintiff] was

- 9 -

entitled to hearing and review procedures conducted in accordance with the

applicable statutory procedures”).

This case provides an exceptionally clear example of the importance of proper

procedure, and the prejudice that may arise when regulations are thwarted. Here, the

Board’s unlawful acts were finalized only “[a] week before the Parks Division merged

with the Wildlife Commission,” an agency that had already “voiced its opposition” to

Christo’s project. Op. ¶¶ 9-11. If the Board had not abandoned its own regulations

to rush through the Agreement before the merger, the outcome literally could not

“have been the same” because the permit decision would have been made by an

entirely different body, applying state law rather than deferring to less-stringent

federal standards. The decision would have been made by an entirely new agency,

with a reconstituted Board consisting mostly of representatives from the former

Division of Wildlife, already on record as opposed to the Project. The prejudice is

clear. See Shinseki v. Sanders, 556 U.S. 396, 411 (2009) (when determining harmless

error, courts should be informed by “an awareness of what body” would have made

the decision, absent error); see also id. (“Often the circumstances of the case will make

clear to the appellate judge that the [error] was harmful and nothing further need be

said.”).

- 10 -

Overlooking the timing and sequence of events leading to the Agreement, and

focusing instead on the end result, the court of appeals concluded that “[n]othing in

the administrative record supports the conclusion that the decision would have been

different.” Op. ¶ 67. This is not the standard under the APA. Agency decisions

must be supported by “substantial evidence,” § 24-4-106(7), C.R.S. (2014), not the

mere absence of contrary evidence. See also Op. ¶ 66 n.11 (relying on absence of

“express findings by the Board that the Project” would violate permit requirements).2

Standing the APA’s requirement on its head, the court of appeals searched for

evidence to support a decision the Board never made. Finding none, it concluded

that the unlawful decision the Board actually did make was harmless. This is not the

law.

Under the APA, reviewing courts must reverse an agency action upon a finding

that it is arbitrary or capricious, unsupported by substantial evidence in the record, or

otherwise contrary to law. § 24-4-106(7), C.R.S. (2014) (“the court shall hold unlawful

and set aside the agency action”). The APA, as its name implies, guarantees proper

2 This footnote, which the court of appeals added to its opinion upon denial of reconsideration, only amplifies the perils of the court’s logic. Having determined that the Board unlawfully avoided its special activity permitting process, the court then relies on the absence of the very “findings” that would have come out of that process. Put differently, there are no “express findings by the Board” under the special activity regulations precisely because the Board arbitrarily and capriciously refused to follow those regulations. This hole in the record is a reason to reverse the agency’s action—not to affirm it.

- 11 -

procedure, not a specific result. This ensures that citizens’ fundamental due process

rights are protected. See Op. ¶ 26 (“requiring an agency to follow its own regulations

comports with principles of due process”). But here, the court of appeals concluded

that the arbitrary and capricious procedural violations by the agency in this case were

harmless, solely because “the outcome would have been the same.” Op. ¶ 70. This

Court should grant certiorari to correct the court of appeals’ erroneous focus on

results, and clarify the proper role of “harmless error” in administrative appeals.

II. THE COURT OF APPEALS’ DECISION PERMITS STATE

AGENCIES TO ABDICATE THEIR RESPONSIBILITIES AND

DEFER TO FEDERAL AGENCIES APPLYING FEDERAL LAW

AND FEDERAL STANDARDS.

This Court should take the opportunity to unequivocally reject the court of

appeals’ suggestion that it is constitutionally “harmless” for an agency to replace

specific findings required under those regulations with approval based on its being

vaguely “aware” of what conditions a wholly separate, federal agency “would likely

include” in a plan that does not yet even exist. Op. ¶ 62. Simply put, this Court

should make it clear that state agencies may not defer or delegate their state-law duties

to federal agencies operating under federal standards and regulations.

As discussed above, the Board agreed to permit “Over the River” contingent

on the project’s compliance with the terms and conditions in the BLM’s final EIS and

decision. But when the Board voted to approve the Agreement on June 23, 2011, no

- 12 -

Board member could have reviewed or considered the Final EIS—because it had not

yet been published, or provided to the Board. In other words, the Board did not

know what the BLM’s decision on mitigation, terms and conditions would be, but the

Board prospectively adopted them as sufficient, without question, sight unseen.

ROAR made two arguments that the Board’s reliance on unknown federal

mitigation requirements was arbitrary and capricious. First, ROAR argued that any

determination based on conditions that are not yet in the record because they do not

yet exist is arbitrary and capricious as a matter of law. See § 24-4-106(7), C.R.S. (2014)

(Agency decisions must be supported by “substantial evidence.”); Colo. Mun. League v.

Mountain States Tel. & Tel. Co., 759 P.2d 40, 44 (Colo. 1988) (discussing substantial-

evidence standard). The court of appeals rejected this argument, citing out-of-state

cases approving very different agency actions under specific federal statutes other

than the APA. See Op. ¶¶ 60-62.

Second, ROAR argued that BLM’s terms and conditions were not only

unknown, they were to be determined under laws and standards different from those

required by state law and Parks’ own permitting regulations. The Board knew that its

special activity regulations contain specific standards, and that these requirements are

different from the BLM’s “undue degradation” standard. See Op. ¶ 56 (discussing

special activity requirements). Indeed, the Board conceded in the district court that

- 13 -

the federal and state permits at issue here were “distinct final agency actions in distinct

jurisdictions.”

The court of appeals failed to address the substance of ROAR’s second

argument, or the difference between federal and state regulations. Instead, it

concluded that reliance on the final EIS was appropriate merely because “the Board

was aware of mitigation conditions the Bureau would likely include in the final

[EIS],”3 and “considered more factors than required by its regulation.” Op. ¶¶ 61-62.

This is incorrect. The Board did not approve “Over the River” conditioned on

federal requirements in addition to the Board’s own independent permitting decision;

it made this conditional approval instead of following its own permitting regulations,

or evaluating whether “Over the River” would meet the more stringent Colorado

permit requirements. The Board never made any findings regarding its purported

understanding of the likely federal mitigation conditions, much less analyze the

3 The court of appeals cited no record evidence in support of this contention, and ROAR is aware of none. In the briefing below, even Parks could identify only a single, conclusory sentence in the record: “State Parks staff has participated with the BLM throughout the NEPA process and has reason to believe the ROD and FEIS will adequately and reasonably require the mitigation of all the environmental impacts associated with the OTR Project, if and when approved.” S.R. CPW0001334-35. Nowhere does the record state what those mitigation requirements would be; analyze them in terms of state permit requirements; or reveal what gave agency staff “reason to believe” in their adequacy.

- 14 -

relationship between its own permit regulations and the requirements that would

underlie the ultimate federal decision.

In fact, the record shows that the Project would not have survived the proper

permitting procedure under 2 C.C.R. § 405-7:703(3) (“Rule 703”). The plain language

of Rule 703(3) requires that a “permit shall be denied for a special activity that would,

among other things, have ‘significant adverse impact on park values, pose significant

threats to the health, safety or welfare of park visitors or other person[s], [or] be

inconsistent with area management plans.’” See Op. ¶ 56 (quoting Rule 703(3))

(emphasis added) (alterations in original). Based on this unambiguous language,

ROAR argued that had Parks properly followed its own regulations, the Board would

have had no choice but to deny the permit.4 While citing it as a requirement in

finding the Board’s actions arbitrary and capricious, under its harmless error analysis

the court of appeals completely overlooked Rule 703(3), relying only upon the

preceding subsection, 703(2), which lists factors that must be considered in any

permitting decision. As a result, the court of appeals incorrectly interpreted Rule 703

4 Notably, Parks never disputed ROAR’s interpretation of Rule 703(3). It argued only that the Board was not required to permit the Project as a special activity.

- 15 -

to require only a balancing of factors, and ignoring the stringent substantive

requirements of Rule 703(3).5 Op. ¶¶ 57-66.

This decision has ramifications reaching far beyond this case. As Parks itself

argued below, it is increasingly common for state and federal agencies to cooperate on

large-scale, multi-jurisdictional projects in Colorado. See, e.g. Chostner v. Colo. Water

Quality Control Comm’n, 2013 COA 111, ¶¶ 13-15 (describing state agency’s conditional

approval based on full knowledge and analysis of “the [BLM]’s final environmental

impact statement… and other agencies’ mitigation plans”). The court of appeals

decision in this case would allow state agencies simply to defer to their federal

counterparts, or to “lead agencies,” without fulfilling their own independent statutory

duties—and argue later that the federal requirements were close enough to, or even

greater than, the state regulations. Such excessive deference impinges not only on

issues of federalism but also, again, of those individual rights that administrative

procedure is meant to protect. See Op. ¶ 39 (“[D]ue process requires the agency to

strictly adhere to its regulations.” (citing cases)).

5 The only substantive analysis of the Project in the record is the BLM’s draft EIS, which concluded that the Project would have significant, or “moderate to significant” impacts to numerous resources that are identified as State Parks resources in the relevant State Park management plan. Draft EIS at 2-77 to 2-86.

- 16 -

CONCLUSION

The Board’s actions, and the court of appeals decision upholding them,

threaten more than the natural beauty of the Arkansas Headwaters, or the citizens and

wildlife living there. The harm is to the Constitution, to the individual’s guarantee

that state agencies will follow the procedures set forth in their regulations, and

Colorado’s role as an independent sovereign in our federal system. This Court should

grant certiorari to clarify that when an agency arbitrarily and capriciously ignores its

own regulations, the error is not “harmless.” The Court should further clarify that an

agency may not abdicate its duty to make a determination in favor of a determination

with one to be made in the future, by a federal agency operating under different

standards.

Dated this 23rd day of April, 2015.

- 17 -

Respectfully submitted, DAVIS GRAHAM & STUBBS LLP

/s/ Geoffrey C. Klingsporn Richard Kirk Mueller, No. 16746 Constance L. Rogers, No. 31679 Mave A. Gasaway, No. 42183 Geoffrey C. Klingsporn, No. 38997 1550 Seventeenth Street, Suite 500 Denver, Colorado 80202 Phone: (303) 892-9400 Attorneys for Petitioner Rags Over the Arkansas River, Inc.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing PETITION FOR

CERTIORARI was filed and served by via the ICCES e-file system or via U.S. Mail, postage prepaid, on the 23rd day of April, 2015, on the following:

Timothy J. Monahan First Assistant Attorney General Elaine J. Wizzard Assistant Attorney General State and Trust Lands Unit Natural Resources & Environment 1525 Sherman Street, 7th Floor Denver, Colorado 80203 Counsel for Defendant-Appellees John E. Putnam Kaplan Kirsch & Rockwell LLP 1675 Broadway, Suite 2300 Denver, Colorado 80202 Counsel for Intervenor

/s/ Paige Finnell