DISTRICT COURT, DENVER COUNTY STATE OF COLORADO 1437 Bannock Street Room 256 Denver, Colorado 80202 XIUHTEZCATL

MARTINEZ, et al., Plaintiffs, v. STATE OF COLORADO, et al., Defendants, and MOUNTAIN STATES LEGAL FOUNDATION,

EFILED Document CO Denver County District Court 2nd JD Filing Date: Jul 29 2011 4:11PM MDT Filing ID: 39000609 Review Clerk: Rebecca A Hendricks

COURT USE ONLY Applicant for Intervention. James M. Manley (Reg. No. 40327) MOUNTAIN STATES LEGAL FOUNDATION 2596 South Lewis Way Lakewood, Colorado 80227 (303) 292-2021 jmanley@mountainstateslegal.com Attorney for Applicant for Intervention MOUNTAIN STATES LEGAL FOUNDATIONS MOTION TO DISMISS COMES NOW, Applicant for Intervention, Mountain States Legal Foundation (MSLF), by and through undersigned counsel, and hereby moves, pursuant to C.R.C.P. 12(b)(5), to dismiss Plaintiffs Amended Complaint for failure to state a claim upon which relief

Case No.: 11CV4377 Division: 275

can be granted.1 As demonstrated below, Plaintiffs lack standing to bring this action. Their claim for relief is without basis in Colorado law and they have failed to allege an injury resulting directly from Defendants actions. Therefore, this Court should dismiss Plaintiffs Amended Complaint with prejudice. INTRODUCTION On May 4, 2011, several individuals and WildEarth Guardians (Plaintiffs) initiated this lawsuit against the State of Colorado, the Governor, and a number of state agencies (Defendants), alleging that Defendants have contributed to global warming by failing to reduce Colorados fair share of annual CO2 emissions, in order to draw down atmospheric CO2 to less than 350 ppm by the end of this century. Am. Compl. 68. Plaintiffs raise a single claim for relief: Defendants alleged failure to reduce Colorados fair share of carbon emissions allegedly damages the atmosphere and therefore violates Defendants heretofore unheard of public trust duties. Id. Plaintiffs seek a declaration that the public trust doctrine is operative in Colorado, and pursuant to this doctrine, a declaration that Defendants must significantly reduce carbon emissions and greenhouse gas emissions in the State. Am. Compl. at 30. Plaintiffs seek to entangle the courts in a policy debate more appropriate to the political branches. Fortunately, this Court may avoid this entanglement because Plaintiffs lack of standing.

On July 13, 2011, MSLF filed a Motion to Intervene in this case, in which MSLF stated its intention to comply with the July 29, 2011, deadline for responsive pleadings and motions set by the Court. On July 28, 2011, Plaintiffs filed an objection and response to MSLFs Motion to Intervene. Defendants do not oppose MSLFs Motion to Intervene. MSLFs Motion to Intervene is still pending and MSLF intends to file a reply to Plaintiffs objection and response within the time allowed by C.R.C.P. 121, 1-15(1). 2

ARGUMENT I. STANDARD OF REVIEW. When reviewing a motion to dismiss for failure to state a claim, the material factual allegations in the complaint must be accepted as true. Public Service Co. of Colorado v. Van Wyk, 27 P.3d 377, 386 (Colo. 2001) (citation omitted). In determining whether standing has been established, the court likewise must accept the truth of the material factual allegations made in the complaint. State Bd. for Community Colleges and Occupational Educ. v. Olson, 687 P.2d 429, 434 (Colo. 1984); Colorado General Assembly v. Lamm, 700 P.2d 508, 516 (Colo. 1985) (A decision that a plaintiff lacks standing because the claimed injury does not infringe any legally protected right of the plaintiff may be viewed as equivalent to a holding that the plaintiff has failed to state a claim upon which relief may be granted.). The question of standing involves a consideration of whether a plaintiff has asserted a legal basis on which a claim for relief can be predicated. Romer v. Board of County Commissioners, 956 P.2d 566, 572 (Colo. 1998). Accepting all of the allegations in the Amended Complaint as true, Plaintiffs have failed to show that they have standing to raise their asserted claim. As demonstrated herein, Plaintiffs have suffered no injuries as a direct result of Defendants actions and, importantly, there is no basis in Colorado law for Plaintiffs alleged public trust claim. Accordingly, Plaintiffs Amended Complaint should be dismissed with prejudice. II. PLAINTIFFS LACK STANDING. Plaintiffs have failed to allege a judicially cognizable injury to a legally protected interest that is the direct result of Defendants conduct. Accordingly, they lack standing and the instant

action should be dismissed. Standing to sue in Colorado state courts requires a plaintiff to show, at a minimum: (1) that he has suffered actual injury from the challenged governmental action; and (2) that the injury was to a legally protected interest as contemplated by statutory or constitutional provisions. Wimberly v. Ettenberg, 570 P.2d 535, 539 (Colo. 1977); Bd. of County Comrs of County of Adams v. Colorado Dept. of Pub. Health & Envt, 218 P.3d 336, 338 (Colo. 2009); State Bd. for Community Colleges and Occupational Educ. v. Olson, 687 P.2d 429, 434 (Colo. 1984). Here, Plaintiffs have failed to establish standing. Their alleged injuries are not to any legally protected interest, nor are their alleged injuries the direct result of Defendants actions. Accordingly, Plaintiffs lack standing and the instant action should be dismissed with prejudice. A. Plaintiffs Have Alleged No Injury To A Legally Protected Interest As Contemplated By Statutory Or Constitutional Provisions.

In this case, the second Wimberly factor is dispositive of Plaintiffs claim, and therefore it is irrelevant whether or not Plaintiffs have suffered an actual injury as a direct result of Defendants actions.2 See Ainscough v. Owens, 90 P.3d 851, 857 (Colo. 2004) (In the following sections, we consider the two standing prongs in reverse order.). As demonstrated below, the public trust duties that Plaintiffs have devisedand that form the entire basis of Plaintiffs claimdo not exist in Colorado. Accordingly, there is no legal basis for Plaintiffs claim and it should be dismissed. See id. (In examining whether the plaintiffs suffered injury to a legally protected right, we look not to the policy being challenged, but to the right that it is alleged to have injured.).

As demonstrated infra, Part II.B., Plaintiffs also fail to meet the first Wimberly factor of injury in fact. 4

1.

The public trust doctrine is foreign to Colorado law.

Plaintiffs propose a radical and heretofore unheard of departure from established Colorado law and the common law public trust doctrine.3 Traditionally limited to navigable waters, the courts have never exported the public trust doctrine from the waterways. The public trust doctrine provides that lands under navigable waters . . . cannot be placed entirely beyond the direction and control of the state. Illinois Cent. R. Co. v. State of Illinois, 146 U.S. 387, 454 (1892). The States, however, are free to limit the public trust as they see fit. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 475 (1988) (citing Shively v. Bowlby, 152 U.S. 1, 26 (1894)). Thus, in Illinois Central, the Supreme Court did not question the State of Illinoiss authority to grant a license to a railroad company to improve the harbor of Chicago. Id. at 463. But such a license was necessarily limited by the States charge to keep the harbor open so that the people of the State . . . may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties. Id. at 452. Accordingly, the State was free to modify the license granted to the railroad in order to better serve the public trust. Id. at 45354. Yet, Colorado has never adopted the common law public trust doctrine, even with respect to water. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251, 1263 (Colo. 1995) (Mullarkey, J., dissenting) (This court has never recognized the public trust doctrine with respect to water.); People v. Emmert, 597 P.2d 1025, 1027 (Colo. 1979) (It is the

Plaintiffs acknowledge as much when they ask the court to breathe life into the public trust doctrine and recognize that its historical origins have as much effect today as they did 1,500 years ago. Am. Compl. 97. 5

general rule of property law recognized in Colorado that the land underlying non-navigable4 streams is the subject of private ownership and is vested in the proprietors of the adjoining lands.). There simply is no public trust duty in Colorado. Robin Kundis Craig, A Comparative Guide to the Western States Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecological Public Trust, 37 ECOLOGY L.Q. 53, 76 (2010). The closest Colorado law comes to recognizing the public trust doctrine is to declare the waters of the State property of the public. Colo. Const. art. XVI, 5. But this in no way creates the sort of navigational servitude or fiduciary duty imposed by the common law public trust doctrine. Emmert, 597 P.2d at 1027. Moreover, the doctrine of maximum beneficial use of water, enshrined in Colo. Const. art. XVI, 6, requires courts to interpret applications for water rights to encourage development of Colorados water resources. Matter of Bd. of County Comrs of County of Arapahoe, 891 P.2d 952, 965 (Colo. 1995) (citing Metropolitan Suburban Water Assn v. Colorado River Water Conservation Dist., 365 P.2d 273, 285 (Colo. 1961) (stating that the courts should construe state law to aid and encourage, rather than to block development and early use of the water resources of the state.)). This means, unlike the rule in public trust jurisdictions, appropriative uses of water are paramount to all other uses. Cf. In re Water Use Permit Applications, 9 P.3d 409, 452 (Haw. 2000); Natl Audubon Socy v. Superior Court, 658 P.2d 709, 712 (Cal. 1983). Nor do Colorados administrative agencies apply the public trust doctrine in their decision-making. See In re Title, Ballot Title & Submission Clause, for 20072008, #17, 172 P.3d 871, 872 (Colo. 2007).

The natural streams of this state are, in fact, nonnavigable within its territorial limits . . . . Stockman v. Leddy, 129 P. 220, 222 (Colo. 1912), overruled on other grounds by United States v. City and County of Denver, 656 P.2d 1, 17 (Colo. 1982). 6

Plaintiffs point to a number of Colorado statutes and the preamble to the Colorado Constitution, but none of these provisions imposes a public trust duty. Am. Compl. 8789. Instead, these provisions deal with wildlife management, Am. Compl. 87 (quoting C.R.S. 331-101), and the designation of Colorado Natural Areas, Am. Compl. 88 (quoting C.R.S. 33-33-102). The preamble to the Colorado Constitution simply states an intent to promote the general welfare. Am. Compl. 89 (quoting Colo. Const. pmbl.).5 Because the public trust does not exist in Colorado, Plaintiffs have failed to allege injury to a legally protected interest as contemplated by statutory or constitutional provisions. Wimberly, 570 P.2d at 539. Accordingly, Plaintiffs lack standing and the instant action should be dismissed with prejudice. 2. The public trust doctrine does not apply to the atmosphere.

Even if the public trust did exist in Colorado, it would not support Plaintiffs claim that Defendants have a duty to impose particular limits on greenhouse gas emission into the atmosphere. Even in those States that have recognized a more expansive definition of the public trust in water than that recognized in Illinois Central, the courts have not extended the public trust doctrine to the atmosphere. For example, the Hawaii Constitution has been construed to impose a public trust duty to protect not just navigation and commerce but also the purity and flow, continued existence, and preservation of all the waters of the State. In re Water

It is well established that the preamble to the Colorado Constitution, like that of the Federal Constitution, is without independent legal significance. District Landowners Trust v. Adams County, 89 P.2d 251, 253 (Colo. 1939) (As to the preambles, they may not be invoked apart from specific provisions of the constitutions to invalidate a statute.); see also Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 13 (1905) (Although that preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power . . . .). 7

Use, 9 P.3d at 443 (quoting Robinson v. Ariyoshi, 658 P.2d 287, 31011 (Haw. 1982)). Similarly, the California Supreme Court has described the public trust as evolving as a shield for the protection of tidelands, [which] now extends its protective scope to navigable lakes. Natl Audubon Socy, 658 P.2d at 712. The California Supreme Court has also recognized that: Public trust easements are traditionally defined in terms of navigation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes. Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971). In light of the public trust concepts in Hawaii and California, the courts have adopted a modified view of traditional diversionary water appropriations, which requires the State to consider the effect of such diversions upon interests protected by the public trust, and attempt, so far as feasible, to avoid or minimize any harm to those interests. Natl Audubon Socy, 658 P.2d at 712; see In re Water Use, 9 P.3d at 451. This does not mean, however, that usufructuary rights to appropriate water may not harm public trust uses. In re Water Use, 9 P.3d at 452; Natl Audubon Socy, 658 P.2d at 712. But the State must consider the impacts to the public trust caused by appropriations and attempt to minimize those impacts before approving any water diversions.6 Neither the traditional public trustprotecting navigationnor the modern public trustrequiring balanced appropriation of water resourcesapplies to the atmosphere. Both versions of the public trust apply only to limit a States authority to transfer water or submerged lands to private ownership or control without first considering the impact to public trust uses.

The application of the public trust doctrine has consistently been predicated upon such a transfer of publicly owned resources to the ownership or control of private individuals. See In re Water Use, 9 P.3d at 44445 (collecting examples). Here, Plaintiffs do not allege that any such transfer to private ownership or control has occurred that would trigger the protections of the public trust doctrine. It is unclear how the State could accomplish such a transfer, given the diffuse nature of the atmosphere. Unlike water or submerged lands, the atmosphere is nonrivalrous, meaning that one persons use of the atmosphere does nothing to impair any other persons use. See Alabama Power Co. v. F.C.C., 311 F.3d 1357, 1369 (11th Cir. 2002). The State could no more transfer the atmosphere to private control in derogation of the public trust than it could transfer ownership of the wind. Accordingly, the public trust has no application to this litigation. Notwithstanding this fatal flaw in Plaintiffs theory, their public trust claim would nevertheless fail for another reason: When the public trust has been held to apply, it merely requires a State to consider the impacts to the public trust; it does not mandate one action or another. In re Water Use, 9 P.3d at 454 (we hold that the Commission inevitably must weigh competing public and private water uses on a case-by-case basis); Save Ourselves, Inc. v. Louisiana Envtl. Control Commn, 452 So. 2d 1152, 1157 (La. 1984) (The environmental protection framework vests in the commission a latitude of discretion to determine the substantive results in each particular case.); Payne v. Kassab, 361 A.2d 263, 273 (Pa. 1976) (It is manifest that a balancing must take place, . . . the legislature has made careful provision for just that.).
6

A handful of other States have also legislatively or constitutionally expanded the public trust 9

In fact, Plaintiffs have acknowledged that the State of Colorado has taken affirmative steps to address carbon emissions. Am. Compl. 7072. Plaintiffs merely disagree with the regulatory approach taken by the State. Am. Compl. 75. The relief Plaintiffs seek is not found in the common law public trust doctrine or the courts. It would be inappropriate in the extreme for this Court to adopt the Plaintiffs atmospheric public trust theory. Such a decision would involve thrusting this Court into two policy debates: (1) whether the public trust exists at all in Colorado; and (2) whether the public trust can ever apply to the atmosphere. It is not the role of the judiciary to embark on new adventures in regulation, as Plaintiffs propose. Colorado Common Cause v. Bledsoe, 810 P.2d 201, 206 (Colo. 1991) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175 (1803)). That is a task reserved to the political branches. B. Plaintiffs Purported Injuries Are Not The Direct Result of Defendants Actions.

Even if the second Wimberly factor were not dispositive of Plaintiffs claim, they would still lack standing because they also fail to meet the first prong of the Wimberly test. In the context of the first Wimberly factor the whole question is whether the damage claimed springs directly to plaintiff from defendants. Wimberly, 570 P.2d at 538 (citation omitted). It is not sufficient to allege an injury that is the indirect and incidental result of the challenged action. Id. at 539; Cloverleaf Kennel Club, Inc. v. Colorado Racing Commn, 620 P.2d 1051, 1055 (Colo. 1980). Plaintiffs alleged injuries are quintessentially indirect and incidental because they purportedly spring not from the actions of Defendants, but rather from the actions of countless

doctrine. See In re Water Use, 9 P.3d at 44445 (collecting examples). 10

third parties spread across Colorado and the globe. Plaintiffs Martinez, Kluding-Rodriguez, and WildEarth Guardians allege a general concern for the future impacts global warming might have on wildlife. Am. Compl. 15, 23, 29. Plaintiffs Martinez and Davis allege aesthetic injuries caused because pine beetles are allegedly better able to survive warmer winters purportedly linked to global warming. Id. 1415, 1819. Plaintiff Kluding-Rodriguez alleges that certain forms of pollution affect her asthma. Id. 22. Plaintiff Budd alleges an interest in global warming, but no specific or concrete injury. Id. 2426. Plaintiffs alleged injuries rely on an attenuated casual chain. Plaintiffs allege that Defendants purported failure to sufficiently regulate greenhouse gas emissions will allow others to emit greenhouse gases, and those gases will enhance the effectiveness of Earths atmosphere, which will bring about global warming, which will in turn adversely affect the environment, thereby threatening Plaintiffs enjoyment of the environment. Plaintiffs purported injuries depend on the consequences of the conduct of third parties (greenhouse gas emitters7) and, on its face, Plaintiffs Amended Complaint fails to allege any injury that is the direct result of Defendants actions or inactions. The alleged injury here is similar to the injuries alleged in two seminal Colorado standing cases: Brotman v. East Lake Creek Ranch, L.L.P., 31 P.3d 886, 891 (Colo. 2001), and Wimberly, 570 P.2d at 538. In those cases, the injuries alleged depended not on the actions of the defendants, but rather on the independent actions of third parties. Brotman, 31 P.3d at 891; Wimberly, 570 P.2d at 538. In each case, the State took actions that made possible allegedly

Plaintiffs have raised no claims against greenhouse gas emitters, nor could they do so. Plaintiffs public trust theory only purports to impose an obligation on the State to preserve and protect the peoples trust assets . . . . Am. Compl. 86 (emphasis added). 11

injurious conduct by a third party. But in each case, the disconnect between the direct actions of the State defendants and the allegedly injurious actions of third parities defeated standing. For example, in Brotman the owner of a ranch adjacent to school trust lands sued to challenge the State Board of Land Commissioners sale of those trust lands to Brotman. 31 P.3d at 887. The ranch owner alleged that the transaction would injure him because it would allow Brotman to condemn an easement across the ranch. Id. The Colorado Supreme Court concluded this sort of indirect injury was insufficient to establish standing: Even if we were to assume that, upon acquiring title, Brotman would immediately seek a way of necessity and would specifically seek a way across the Ranchs land rather than across the land of one of the other adjacent land owners, the Ranch would still not have standing here because condemnation would not be a result of the allegedly unlawful agreement, but rather would be the result of a landowner exercising his valid, constitutional rights . . . . Id. at 891. Similarly, in Wimberly bail bondsmen sought an injunction to prohibit a pretrial release program that allowed certain defendants to avoid using the services of the bail bondsmen by depositing only a portion of their bail with the court. 570 P.2d at 537. The bondsmen alleged that the program would hurt their business by causing their potential customers to not engage their services. Id. at 539. The Colorado Supreme Court concluded that such an injury, suffered because of the actions of a third party, was too attenuated to confer standing on the bondsmen: [T]he pre-trial release program may affect the business of the bail bondsmen as a practical matter, it does so only indirectly by permitting criminal defendants to choose amongst an increased number of bail alternatives. Id.; see also Cloverleaf Kennel Club, Inc. v. Colorado Racing Commn, 620 P.2d 1051, 1055 (Colo. 1980) (same).

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The Plaintiffs alleged injuries are similarly incidental to Defendants actions. This is illustrated by the fact that Plaintiffs do not even allege that the relief they seeksignificant reductions in Colorado greenhouse gas emissionswill have any effect on the injuries they allege. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) ([I]t must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.). By Plaintiffs own reckoning, which is accepted as true for purposes of this Motion to Dismiss, in order to redress their alleged injuries, atmospheric CO2 levels must be reduced to at most 350 ppm by the end of the century. Am. Compl. 64. But Plaintiffs have not alleged that the relief they seek will achieve this reduction. Nor could they. The atmosphere is not limited to Colorado; it is a global system. Plaintiffs do not even attempt to define the reductions in Colorados fair share of greenhouse gas emissions necessary to achieve the redress of their injuries.8 Plaintiffs could achieve the relief they seek, yet still suffer their alleged injuries, because those injuries are, purportedly, the result of a global phenomenon caused by the actions of countless greenhouse gas emitters, not the direct consequences of Defendants actions. Because Plaintiffs have failed to allege any injury suffered as a direct result of Defendants purported failure to protect the atmosphere, Plaintiffs lack standing to bring the present action and this Court should dismiss Plaintiffs Amended Complaint with prejudice.

Plaintiffs complain that they feel current efforts to regulate greenhouse gases are inadequate; but, having never defined the standard by which Colorados emissions reductions are to be measured, these complaints are merely a matter of subjective opinion. Am. Compl. 75, 76. 13

CONCLUSION For the foregoing reasons, Mountain States Legal Foundation respectfully requests that this Court dismiss Plaintiffs Amended Complaint with prejudice. DATED this 29th day of July 2011. Respectfully Submitted:

/s/ James M. Manley James M. Manley, Esq. MOUNTAIN STATES LEGAL FOUNDATION 2596 South Lewis Way Lakewood, Colorado 80227 Telephone: (303) 292-2021 Facsimile: (303) 292-1980 jmanley@mountainstateslegal.com

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CERTIFICATE OF SERVICE I certify that on the 29th day of July 2011, the foregoing document was filed with the Court and true and accurate copies of same were served on all other counsel of record via LexisNexis File and Serve: Ashley D. Wilmes WildEarth Guardians 827 Maxwell Avenue, Ste. L Boulder, CO 80304 wilmeslegal@gmail.com James J. Tutchton WildEarth Guardians 6439 E. Maplewood Ave. Centennial, CO 80111 jtutchton@wildearthguardians.org Attorneys for Plaintiffs

John W. Suthers Casey A. Shpall William C. Allison V Natural Resources & Environment Section 1525 Sherman Street, 7th Floor Denver, CO 80203 Telephone: (303) 866-5069, (303) 866-500 FAX: (303) 866-355 casey.shpall@state.co.us william.allison@state.co.us Attorneys for Defendants

/s/ James M. Manley James M. Manley