Colorado Advocates v. Stolzmann

• Court: Colorado Court of Appeals
• Decided: July 17, 2025
• Docket: 24CA1673
• Status: Unpublished

Opinion

24CA1673 Colorado Advocates v Stolzmann 07-17-25

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1673 Boulder County District Court No. 24CV30482 Honorable Robert R. Gunning, Judge Honorable Bruce Langer, Judge

Colorado Advocates for Public Safety, Anita Moss, and Robert Westby,

Plaintiffs-Appellants,

v.

Ashley Stolzmann, in her official capacity as a Boulder County Commissioner, Marta Loachamin, in her official capacity as a Boulder County Commissioner, and Claire Levy, in her official capacity as a Boulder County Commissioner,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE FREYRE Gomez and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 17, 2025

The Morath Law Firm, Susan K. Morath, Michele Blay, Boulder, Colorado, for Plaintiffs-Appellants

Ben Pearlman, County Attorney, David Hughes, Deputy County Attorney, Melanie Lewis, Assistant County Attorney, Boulder, Colorado, for Defendants- Appellees ¶1 Plaintiffs, the Colorado Advocates for Public Safety, Anita

Moss, and Robert Westby, appeal two district court orders granting

a motion to dismiss filed by defendants, Ashley Stolzmann, Marta

Loachamin, and Clarie Levy, in their official capacities as

commissioners on Boulder County’s Board of County

Commissioners (BOCC). We affirm.

I. Background

¶2 In 1966, the Colorado General Assembly enacted legislation

permitting counties to prohibit the discharge of firearms in

unincorporated areas, with certain exceptions. Ch. 4, sec. 1, § 36-

22-1 to -4, 1966 Colo. Sess. Laws 4-5. Over the years, Boulder

County has adopted a series of resolutions prohibiting firearms

discharge in the most densely populated areas of Sugarloaf

Mountain, a residential community in the foothills. Moss and

Westby have resided in Sugarloaf since 1976. Their property

borders United States Forest Service (USFS) land. Together, Moss

and Westby founded the Colorado Advocates for Public Safety, a

nonprofit corporation whose mission is to address public safety

issues, such as those involving firearms, on behalf of the Sugarloaf

residents.

1 ¶3 In 2022, the BOCC, after a public hearing, adopted Resolution

No. 2022-096 (the 2022 Resolution), which further expanded the

Sugarloaf no-discharge area to include a large portion of USFS land

that borders Sugarloaf. Shortly thereafter, the BOCC received

complaints from hunters questioning the BOCC’s legal authority to

restrict hunting on USFS land. In December 2023, Commissioner

Levy sent the Sugarloaf residents an email informing them that

continued enforcement of the firearms discharge ban on USFS land

would subject the county to legal challenges from the USFS that

carried a high risk of being resolved against it. Several months

later, Moss wrote to the Boulder County Sheriff’s Department to

report that hunters were discharging firearms in the Sugarloaf area

in violation of the 2022 Resolution and requesting enforcement of

the resolution. The sheriff informed Moss that the county could not

legally enforce the ban on federal land.

¶4 In May 2024, the BOCC conducted a public hearing to

consider rescinding the 2022 Resolution. The BOCC heard from

community members, the sheriff’s department, Colorado Parks and

Wildlife, and the USFS. At the conclusion of the hearing, the BOCC

rescinded the 2022 Resolution and adopted Resolution No. 2024-

2 040 (the 2024 Resolution), which prohibited firearms discharge in

the Sugarloaf no-discharge area for any reason except for hunting

on the USFS land within the area’s boundaries.

¶5 Plaintiffs filed a C.R.C.P. 106(a)(4) action challenging the

BOCC’s adoption of the 2024 Resolution. Their complaint alleged

that the BOCC abused its discretion by allowing hunting on USFS

land in the Sugarloaf no-discharge area because it endangered the

Sugarloaf residents. The complaint further alleged that the BOCC

had misinterpreted federal preemption law concerning the county’s

regulation of national forests. Plaintiffs also sought a declaration,

under C.R.C.P. 57, that the 2024 Resolution was invalid and that

the 2022 Resolution should be reinstated.

¶6 The BOCC filed a motion to dismiss the amended complaint

under C.R.C.P. 12(b)(1), alleging that plaintiffs lacked standing. It

argued that plaintiffs had not suffered an injury in fact because the

injuries alleged were speculative. It further argued that the BOCC’s

adoption of the 2024 Resolution was a legislative act not reviewable

under C.R.C.P. 106(a)(4), and that the statute under which the

resolution was adopted, section 30-15-302, C.R.S. 2024, did not

confer a legally protected interest on plaintiffs.

3 ¶7 While the motion to dismiss was pending, plaintiffs filed a

motion for an immediate temporary and permanent injunction

staying the 2024 Resolution from taking effect and continuing

enforcement of the 2022 Resolution through the upcoming hunting

season. Moss and Westby testified at the hearing. Moss described

previously seeing discarded razor blades from bow hunting in the

Sugarloaf area and testified that years earlier, she had seen a

vehicle speeding down the road behind her house in pursuit of a

deer on USFS land. Westby testified to the negative effects of

hunting described by his neighbors over the years, including a dog

being shot, children observing shot animals, and gunpowder

starting a fire during muzzleloader season.1 The district court

denied plaintiffs’ motion and found that they did not have a

reasonable likelihood of success on the merits of their Rule

106(a)(4) claim because they had not shown that the BOCC’s

adoption of the 2024 Resolution was a quasi-judicial act. Instead,

the court found that the 2024 Resolution concerned public policy

1 The court found Westby’s statements of third parties to be hearsay

and inadmissible for their truth. It admitted them only for their effect on him.

4 matters of a general and prospective nature that did not involve

application of pre-existing legal standards to an identifiable person

or group. Alternatively, the district court found that if the BOCC’s

action was quasi-judicial, plaintiffs failed to show it was arbitrary or

capricious.

¶8 A different district court judge considered and granted the

BOCC’s motion to dismiss. The court concluded that plaintiffs’ fear

of being put at increased risk of harm from firearms discharges was

no different from the other residents living in the Sugarloaf no-

discharge area, that their claimed injury was indirectly caused by

the BOCC’s adoption of the 2024 Resolution, and that any safety

concerns regarding hunting were speculative. The court rejected

plaintiffs’ claims that prior BOCC resolutions or Rule 106(a)(4) gave

them a legally protected interest and dismissed the case for lack of

jurisdiction.

II. Standing

¶9 Plaintiffs contend that the district court erroneously concluded

that they lacked standing. We disagree.

5 A. Standard of Review and Applicable Law

¶ 10 Standing is a threshold issue that must be satisfied to decide

a case on its merits. HealthONE v. Rodriguez, 50 P.3d 879, 892

(Colo. 2002). Because standing is a jurisdictional matter, we review

the district court’s determination de novo. Friends of the Black

Forest Reg’l Park, Inc. v. Bd. of Cnty. Comm’rs, 80 P.3d 871, 876-77

(Colo. App. 2003). We may consider any evidence submitted on the

issue to determine whether a party has standing. Bd. of Cnty.

Comm’rs v. Bowen/Edwards Assocs., Inc., 830 P.2d 1045, 1053

(Colo. 1992); Rangeview, LLC v. City of Aurora, 2016 COA 108, ¶ 11.

“Whether a party has standing is determined as of the time the

action is filed.” Am. Comp. Ins. Co. v. McBride, 107 P.3d 973, 976

(Colo. App. 2004) (citing Grossman v. Dean, 80 P.3d 952 (Colo. App.

2003)).

¶ 11 To establish standing, a party must show that they have

suffered an injury in fact to a legally protected interest.

Hickenlooper v. Freedom from Religion Found., Inc., 2014 CO 77, ¶ 8

(citing Wimberly v. Ettenberg, 570 P.2d 535, 539 (Colo. 1977)).

¶ 12 A party may satisfy the first prong — an injury in fact — if

they have suffered a tangible injury, such as physical damage or

6 economic harm, or an intangible injury, such as a deprivation of a

legally created right. See Ainscough v. Owens, 90 P.3d 851, 855

(Colo. 2004); see also City of Greenwood Village v. Petitioners for

Proposed City of Centennial, 3 P.3d 427, 437 (Colo. 2000) (“[H]arm

to intangible values can satisfy the injury-in-fact requirement.”).

However, the remote possibility of a future injury or an injury that

is overly indirect and incidental will not convey standing.

Ainscough, 90 P.3d at 856; Barber v. Ritter, 196 P.3d 238, 246

(Colo. 2008). To determine whether there is an injury in fact, we

accept as true the allegations set forth in the complaint. Ainscough,

90 P.3d at 857.

¶ 13 A party may establish the second prong — a legally protected

interest — if they show they have “a claim for relief under the

constitution, the common law, a statute, or a rule or regulation.”

Id. at 856. Like an injury in fact, a legally protected interest may be

tangible, such as an interest based on a contract or property rights,

or intangible, such as an interest in free speech or in having a

government that acts within constitutional boundaries. Id. The

legally protected interest prong recognizes that “parties actually

protected by a statute or constitutional provision are generally best

7 situated to vindicate their own rights.” Greenwood Village, 3 P.3d

at 437.

¶ 14 “Courts cannot, under the pretense of an actual case, assume

powers vested in either the executive or the legislative branches of

government.” Wimberly, 570 P.2d at 538. “By requiring the

plaintiff to show an injury in fact, . . . standing screens out

plaintiffs who might have only a general legal, moral, ideological, or

policy objection to a particular government action.” FDA v. All. for

Hippocratic Med., 602 U.S. 367, 381 (2024).

B. Analysis

1. Injury In Fact

¶ 15 We first conclude that plaintiffs lack standing because their

alleged injury is not particularized enough to constitute an injury in

fact. Plaintiffs alleged that living with the threat of physical harm

due to discharging firearms on land near their home caused anxiety

and stress. A possibility of future injury, and “an injury that is

overly ‘indirect and incidental’ to the defendant’s action,” however,

is not enough to confer standing. Freedom from Religion, ¶ 9

(citation omitted). Plaintiffs’ amended complaint does not allege

that the BOCC directly caused them injuries, and the testimony

8 from the injunction hearing, while describing prior incidents, was

not admissible for its truth. Indeed, the fear and threat of physical

harm alleged requires actions by third parties (hunters), not the

BOCC. See Wimberly, 570 P.2d at 539. And an act that permits a

third party to engage in conduct that impacts a plaintiff is too

indirect and incidental to constitute an injury in fact. See 1405

Hotel, LLC v. Colo. Econ. Dev. Comm’n, 2015 COA 127, ¶¶ 44-52

(summarizing cases distinguishing between conduct that directly

causes an injury and conduct that encourages or promotes a third

party to engage in conduct that causes a plaintiff’s injury).

¶ 16 For the same reasons, we conclude that the plaintiffs’ alleged

injury is not particularized to them; instead, it is similar to all the

Sugarloaf residents affected by the 2024 Resolution. See City of

Lakewood v. DeRoos, 631 P.2d 1140, 1143 (Colo. App. 1981)

(finding property owners adjacent to a road expansion did not have

damages different in kind from the general public).

2. Legally Protected Interest

¶ 17 Second, we conclude that plaintiffs lack standing because they

do not possess a valid legally protected interest to meet standing

requirements. Plaintiffs allege four sources of their legally protected

9 interest: (1) section 30-15-302; (2) C.R.C.P. 106(a)(4); (3) the right to

nonarbitrary exercise of discretion by governmental officials; and (4)

their property ownership. The legally protected interest

requirement promotes judicial self-restraint. Freedom from Religion,

¶10. “This prudential consideration recognizes ‘that unnecessary or

premature decisions of constitutional questions should be avoided,

and that parties actually protected by a statute or constitutional

provision are generally best situated to vindicate their own rights.’”

Id. (citation omitted).

a. Section 30-15-302

¶ 18 We aim to effectuate the legislature’s intent, and, in doing so,

we look first to the statute’s plain language, giving words and

phrases their plain and ordinary meanings. Oakwood Holdings,

LLC v. Mortg. Invs. Enters. LLC, 2018 CO 12, ¶ 12. “If the statutory

language is clear, we must apply it as written and need not resort to

other rules of statutory construction.” Id.

¶ 19 As relevant here, section 30-15-302 provides:

(1) The board of county commissioners . . . may designate, by resolution, areas in the unincorporated territory of such county in which it is unlawful for any person to discharge any firearms, except a duly

10 authorized law enforcement officer acting in the line of duty . . . .

(2) No area shall be so designated under authority of subsection (1) of this section unless it has an average population density of not less than one hundred persons per square mile in the area designated, and, before making any such designation, the board of county commissioners shall hold a public hearing thereon at which any interested person shall have an opportunity to be heard. . . .

¶ 20 To determine whether a statute confers a legal interest

requires consideration of three factors: “(1) whether the statute

specifically creates such a right in the plaintiff[s]; (2) whether there

is any indication of legislative intent to create or deny such a right;

and (3) whether it is consistent with the statutory scheme to imply

such a right.” Olson v. City of Golden, 53 P.3d 747, 752 (Colo. App.

2002).

¶ 21 Plaintiffs contend that subsection (2) of section 30-15-302

provides them a legally protected interest and that by directing the

sheriff’s department not to enforce the 2022 Resolution, the BOCC

impaired this interest. We disagree for two reasons. First, nothing

in the plain language of the statute specifically creates such an

interest or provides judicial redress for landowners seeking to

11 compel a county sheriff to enforce the limits of a county’s

resolution. Instead, the statute grants the BOCC the authority to

create no-discharge areas when certain parameters are satisfied

(like population density). Second, the record shows that the BOCC

complied with the statute in rescinding the 2022 Resolution by

conducting a public hearing before adopting the 2024 Resolution.

¶ 22 Accordingly, we conclude that section 30-15-302 does not

b. C.R.C.P. 106(a)(4)

¶ 23 Plaintiffs next claim that Rule 106 provides a legally protected

interest to pursue judicial review of the BOCC’s action under

section 30-15-302 and that the BOCC’s actions are quasi-judicial

and not quasi-legislative as found by the district court.

¶ 24 Judicial review under C.R.C.P. 106(a)(4) is only available when

(1) a governmental body or officer or any lower judicial body

exercising judicial or quasi-judicial functions has exceeded its

jurisdiction or abused its discretion; and (2) there is no plain,

speedy, and adequate remedy. See State Farm Mut. Auto. Ins. Co. v.

City of Lakewood, 788 P.2d 808, 813 (Colo. 1990). Quasi-judicial

action generally involves “a determination of the rights, duties, or

12 obligations of specific individuals based on the application of

existing legal standards to facts developed at a hearing.” Verrier v.

Colo. Dep’t of Corr., 77 P.3d 875, 879 (Colo. App. 2003). To be

deemed quasi-judicial, the action must also “adversely affect the

protected interests of specific individuals.” Copley v. Robinson, 224

P.3d 431, 435 (Colo. App. 2009); see Hellas Constr., Inc. v. Rio

Blanco County, 192 P.3d 501, 504 (Colo. App. 2008). In contrast,

action necessary to carry out existing legislative policies is deemed

administrative and is not reviewable under C.R.C.P. 106(a)(4). See

Verrier, 77 P.3d at 879.

¶ 25 As our supreme court stated:

If the governmental decision is likely to affect the legal interests of specific individuals, and if the governmental decision is reached through the application of preexisting legal standards or policy considerations to present or past facts developed at a hearing, then “one can say with reasonable certainty that the governmental body is acting in a quasi-judicial capacity in making its determination.”

Colo. State Bd. of Land Comm’rs v. Colo. Mined Land Reclamation

Bd., 809 P.2d 974, 981 (Colo. 1991) (citation omitted).

¶ 26 Legislative actions, on the other hand, involve public policy

matters that are permanent or general in nature, and generally

13 prospective in nature. Legislative action is not normally restricted

to identifiable persons or groups. Cherry Hills Resort Dev. Co. v.

City of Cherry Hills Village, 757 P.2d 622, 625 (Colo. 1988); Native

Am. Rights Fund, Inc. v. City of Boulder, 97 P.3d 283, 287 (Colo.

App. 2004).

¶ 27 We conclude that the BOCC’s adoption of the 2024 Resolution

was quasi-legislative, and thus, Rule 106 does not confer a legally

protected interest to plaintiffs. To begin, as explained above,

plaintiffs have no legally protected interest under section 30-15-302

and, therefore, have no legally protected interest underlying their

Rule 106(a)(4) claim. Additionally, the record shows that the 2024

Resolution was prospective and applicable to all Sugarloaf

residents, not just plaintiffs or those residents who shared borders

with USFS land. Further, there is no evidence that the 2024

Resolution applied pre-existing legal standards or applied only to

immediate parties claiming an interest.

¶ 28 We are not persuaded otherwise by plaintiffs’ claim that the

BOCC held a hearing before adopting the 2024 Resolution, thereby

rendering the proceeding quasi-judicial. Unlike a quasi-judicial

proceeding, the BOCC did not apply existing legal standards to facts

14 developed at the hearing; instead, it sought public input before

making a policy decision to enact a resolution with prospective

effect. See Widder v. Durango Sch. Dist. No. 9-R, 85 P.3d 518, 527

(Colo. 2004); see also Native Am. Rights Fund, 97 P.3d at 287.

Accordingly, under these circumstances, we conclude the BOCC’s

enactment of the 2024 Resolution was legislative in nature and that

Rule 106(a)(4) did not confer a legally protected interest.

c. Nonarbitrary Exercise of Discretion by BOCC

¶ 29 Relying on Ainscough, 90 P.3d at 857 plaintiffs next contend

that they have a legally protected interest in the nonarbitrary

exercise of discretion by governmental officials and that the BOCC

acted arbitrarily by (1) instructing the sheriff’s department not to

enforce the 2022 Resolution after receiving information that doing

so might violate federal law; (2) instructing the Sugarloaf residents

that it considered the 2022 Resolution ineffective without providing

a basis for its decision; and (3) adopting the 2024 Resolution

without presenting evidentiary support. But unlike the Ainscough

case, where the plaintiffs asserted violations of the Colorado

Constitution, the payroll deduction statute, and the Administrative

Procedure Act by an executive order that eliminated payroll

15 deductions for union dues, plaintiffs have not identified anything

other than section 30-15-302, which we have already determined

did not confer a legally protected interest, to support their claim.

And the record shows that the BOCC complied with the statute by

holding a public hearing before enacting the 2024 Resolution.

d. Property Ownership

¶ 30 Last, plaintiffs contend that their ownership of property

adjacent to USFS land confers on them a legally protected interest

under the Fourteenth Amendment to the United States

Constitution. They argue that the 2024 Resolution damages their

property rights. Again, we disagree and find that due to the lack of

a particularized injury, plaintiffs lack standing. Plaintiffs rely on

zoning cases in which an applicant sought to develop their property

and had a legally protected interest in ensuring the lawfulness of

rezoning decisions. See, e.g., Reeves v. City of Fort Collins, 170 P.3d

850, 852 (Colo. App. 2007). In such cases, owners of property

adjacent to rezoned land have standing to challenge rezoning that

adversely affects their property. But here, no rezoning or

development has occurred, nor have plaintiffs alleged an injury

directly resulting from the 2024 Resolution. Accordingly, we

16 discern no error in the district court’s conclusion that plaintiffs lack

standing.

III. Additional Contentions

¶ 31 Plaintiffs contend that the district court erred by dismissing

their claims without separately ruling on their declaratory judgment

claim, and they ask this court to reverse the denial of their motion

for preliminary injunction. Because we have concluded that

plaintiffs lack standing, we need not address their declaratory

judgment claim. See State v. Hill, 2023 CO 31, ¶ 10 (to

demonstrate a legally protected interest for a declaratory judgment,

a party must assert a legal basis on which a claim for relief can be

granted). Additionally, because plaintiffs’ preliminary injunction

request is conclusory and not developed, we decline to address it.

See Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582, 604 (Colo.

App. 2007) (declining to address underdeveloped arguments). At

any rate, given that plaintiffs have not established their standing to

bring this action, they are not entitled to any injunctive relief.

IV. Disposition

¶ 32 The judgment is affirmed.

JUDGE GOMEZ and JUDGE MEIRINK concur.