Kuntz v. Delta County Board of County Commissioners et al

Filing 45

ORDER adopting 38 Report and Recommendations; granting 24 Motion to Dismiss for Failure to State a Claim by Judge Christine M. Arguello on 02/07/2017. (swest)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Case No. 16-CV-710-CMA-GPG
DR. DAVID KUNTZ,
Plaintiff,
v.
DELTA COUNTY BOARD OF COMMISSIONERS,
C. DOUGLAS ATCHLEY, Delta County Commissioner, in his official capacity,
C. BRUCE HOVDE, Delta County Commissioner, in his official capacity, and
MARK ROEBER, Delta County Commissioner, in his official capacity,
Defendants.
ORDER ADOPTING RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Defendants’ Motion to Dismiss Plaintiff’s
Complaint under Fed. R. Civ. P. 12(b)(6). (Doc. # 24.) On June 2, 2016, this Court
referred the Motion to United States Magistrate Judge Gordon P. Gallagher pursuant to
28 U.S.C. § 636 and Fed. R. Civ. P. 72. Upon review, Magistrate Judge Gallagher
recommended that this Court grant Defendants’ Motion to Dismiss. (Doc. # 38.) For
the following reasons, the Court adopts that Recommendation and dismisses the case.
I.

BACKGROUND

Plaintiff, Dr. David Kuntz, wanted to add a new chicken barn and egg-laying
operation to his existing cattle ranch and wheat farm in unincorporated Delta County.
(Doc. # 1 at 3). Pursuant to the Delta County Regulation for Specific Developments

(DCR), Defendants, Delta County Board of Commissioners et al., required Plaintiff to
undergo an application and approval process before adding the egg-laying operation.
(Doc. # 1 at 4–5.) Defendants first denied Plaintiff’s multiple requests for approval but
ultimately granted his application in October 2015. (Doc. # 1 at 5.) Defendants
reserved the right to revoke the approval for violation of any conditions imposed therein.
(Doc. # 1 at 5.)
In March 2016, Plaintiff initiated this suit against Defendants, raising one
substantive claim for relief: a perceived equal protection violation under the Fourteenth
Amendment, 42 U.S.C. §1983, and the Colorado Constitution, Article II, Section 25. 1
(Doc. # 1 at 9.) Plaintiff argues that, through their enforcement of the DCR, Defendants
treat individuals engaged in egg-laying operations differently from similarly-situated
individuals engaged in chicken-raising operations. 2 (Doc. # 1 at 7.) More specifically,
he alleges that a farmer, like himself, who wants to add an egg-laying operation to his
repertoire is required to undergo review under the DCR while a farmer who wants to
add the rearing of live chickens to his repertoire is not.
In May 2016, Defendants filed the instant Motion to Dismiss, requesting that the
Court dismiss Plaintiff’s Complaint for failing to adequately plead an essential element
of his equal protection claim—that the DCR treats similarly-situated individuals
differently. (Doc. # 24 at 7.) Defendants contend that the DCR plainly requires any new
1

Plaintiff also seeks a declaratory judgment to shield himself from possible revocation of
Defendants’ approval of his egg-laying operation. (Doc. # 1 at 10.)
2
An “essential element” of an equal protection claim is “the allegation that a plaintiff was treated
differently from those similarly situated.” Katz v. City of Aurora, 85 F. Supp. 1012, 1020 (D.
Colo. 2000).
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operation to undergo review, regardless of whether the operation is created to sell eggs
or rear live chickens. (Id.)
Magistrate Judge Gallagher agreed with Defendants’ interpretation of the DCR
and recommended that this Court dismiss Plaintiff’s Complaint as not cognizable under
Fed. R. Civ. P. 12(b)(6). (Doc. # 38 at 8–9.) Plaintiff objects to the Recommendation in
its entirety. (Doc. # 41.)
II.

STANDARD OF REVIEW

After a magistrate judge issues a recommendation on a dispositive motion,
Fed. R. Civ. P. 72(b)(3) requires that the district judge conduct a de novo review of any
part of the recommendation that has been properly objected to. In conducting the
review, a “district judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.”
Id. Any arguments raised for the first time in objections are deemed waivable and need
not be considered by the district court. Marshall v. Chater, 75 F.3d 1421, 1426 (10th
Cir. 1996).
III.

LAW

Under Fed. R. Civ. P. 12(b)(6), the Court may dismiss a complaint for failure to
state a claim if it appears beyond a doubt that the plaintiff can plead no set of facts in
support of his claim that would entitle him to relief. Golan v. Ashcroft, 310 F. Supp. 2d
1215, 1217 (D. Colo. 2004). Dismissal under Rule 12(b)(6) may also be based on the
lack of a cognizable legal theory. Golan, 310 F. Supp. 2d at 1217. In reviewing a
motion to dismiss, courts take all well-pleaded allegations in the plaintiff’s complaint as
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true and construe the allegations in the light most favorable to plaintiff. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007); Khalik v. United Air Lines, 671 F.3d 1188,
1190 (10th Cir. 2012).
When, as here, a court’s review of a Rule 12(b)(6) motion hinges on interpreting
a statute or county enactment, ordinary rules of statutory construction apply. See
Treece, Alfrey, Musat & Bosworth, PC v. Dep’t of Fin., 298 P.3d 993, 996 (Colo. App.
2011). When interpreting a statute, a court’s “primary task . . . is to give effect to the
intent of the drafters, which [the court does] by looking to the plain language.” Id. The
court reads “statutes and municipal enactments in such a way as to give effect to every
word,” considering “the language used in the context of the statute or code as a whole”
and “construing each [provision] consistently and in harmony with the overall statutory
design.” Id. Courts “should reject interpretations that will render words or phrases
superfluous and must avoid interpretations that produce illogical or absurd results.” Id.;
see also Lagae v. Lackner, 996 P.2d 1281, 1284 (Colo. 2000).
IV.

ANALYSIS

As pertinent here, the DCR provides that no person
shall engage, cause, or permit any new or expanded specific
development . . . unless such proposal has been reviewed in
accordance with the review procedures and performance
standards outlined in this [DCR].
(Doc. # 1-1 at 4, Art. II § 1.)
Certain activities, however, are exempt from this review, including “[a]gricultural
uses of the land that produce agricultural and livestock products that originate from the
land’s productivity, except for new confined animal operations . . . .” (Id. at 2, Art. I, §
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5.B.) “Confined animal operations” include “commercial feedlots, dairies, kennels,
poultry and fur farms” but not “[t]he rearing of livestock, where offspring are raised on
the ranch or farm and are fed out.” (Id. at 7, Art. II § 4.A.14, Art. VII § 2.)
Plaintiff takes this “fed out” exemption to mean that farmers who “hatch and raise
chickens” are always exempt from the DCR’s requirements, regardless of whether they
are running a pre-existing operation or starting a new one. (Doc. # 1 at 7, ¶ 23.) He
argues that this exemption therefore treats chicken-raising farming operations and egglaying operations, such as his, unequally. The Court disagrees with that reading. As
the Court reads the DCR, this “fed out” exemption applies only to farmers who hatch
and raise “offspring” that are “rear[ed]” from a pre-existing operation, i.e. from a chicken
they already own. (Doc. # 1-1 at 7, Art. II § 4.A.14.) See Rear, MERRIAM-W EBSTER
ONLINE DICTIONARY, https://www.merriam-webster.com/dictionary/rear (last visited Feb.
3, 2017) (defining “rear” as “to breed and raise (an animal) for use or market.”); Conrad
v. Phone Directories Co., 585 F.3d 1376, 1381 (10th Cir. 2009) (The court “may consult
a dictionary to determine the plain meaning of a term.”). If, however, a farmer begins a
new chicken-raising operation, this “rearing . . . [of] offspring” provision would not apply
to him. He would instead have to undergo review, just as any other “new confined
animal operation” would, including a new egg-laying operation. (Doc. # 1-1 at 2, 7.)
In other words, in the Court’s view, the DCR treats all new confined animal
operations the same. Indeed, Article I, Section 5, plainly states that “new confined
animal operations” are not exempt from DCR review. (Doc. #1-1 at 2.) It does not
differentiate egg-laying operations from chicken-raising operations—only new
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operations from pre-existing operations that feed out offspring. Thus, a farmer seeking
to start a chicken operation on a farm that does not currently contain chickens will
undergo review, regardless of whether the farmer intends to sell the offspring, or the
eggs, of the chickens raised there.
Reviewing and harmonizing the fed out provision with the broader context and
purpose of the DCR supports the Court’s reading of the statute. See Conrad, 585 F.3d
at 1381 (The Court may “take into account the broader context of the statute as a whole
when ascertaining the meaning of a particular provision.”). The DCR aims to “[p]romote
the health, safety, and general welfare of the present and future residents of Delta
County,” to “[m]anage changes to specific developments that may have an adverse
effect on neighboring landowners and other residents of Delta County,” to “[p]reserve
and protect property rights,” “[p]reserve the character of the existing rural and urban
communities and neighborhoods in Delta County,” and “[p]rotect the agricultural land,
lifestyle, and economy of Delta County.” (Doc. # 1-1 at 1, Art. I, § 4.). Based on these
provisions, the Court agrees with Magistrate Judge Gallagher’s summation of the DCR’s
overall purpose: “keep the general nature of the communities the same, respect what
exists now such as urban, rural, and farming lifestyles, allow for moderate and
measured growth and change, do not take away what folks already have.” (Doc. # 38 at
6.) To conclude, as Plaintiff suggests, that the DCR permits a farmer to initiate a brand
new chicken-raising operation, by building a coop or purchasing myriad chickens,

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without undergoing the approval process would be inconsistent with this purpose. 3 As
Magistrate Judge Gallagher noted,
The argument that a current cattle farmer could purchase an
endless number of chickens and sell the live young, all the
while not running afoul of the DCR for failing to seek review,
so long as no eggs were sold, would be an absurd
interpretation of the [DCR].
See Lagae, 996 P.2d at 1284 (courts must avoid interpretations that produce absurd
results.)
Accordingly, the Court concludes that Plaintiff’s equal protection claim is
premised on a misinterpretation of the DCR. The Court, therefore, agrees with
Magistrate Judge Gallagher that the Complaint cannot withstand Defendants’ Motion to
Dismiss. Based on this conclusion, the Court need not address the parties’ rational
basis arguments.
V.

CONCLUSION

For the foregoing reasons, the Court ORDERS:
1. Plaintiff’s objection to the Recommendation (Doc. # 41) is OVERRULED;
2. the Report and Recommendation of United States Magistrate Gordon P.
Gallagher (Doc. # 38) is AFFIRMED AND ADOPTED as an Order of this
Court;
3. Defendants’ Motion to Dismiss (Doc. # 24) is GRANTED; and
4. this case is DISMISSED WITH PREJUDICE.

3

Of note, Plaintiff has not alleged a single incident where a farmer in Delta County started a
new chicken-raising operation and was exempt from DCR review.
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DATED: February 7, 2017

BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge

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