Adams County District Court 1100 Judicial Center Drive Brighton, Colorado 80601 Plaintiff: BOARD OF COUNTY COMMISSIONERS OF ADAMS COUNTY v Defendants: GAYLE L. BEAUCHAMP, HUGO ORONTES GUTIERREZ, AND RENEGADE OIL & GAS COMPANY, LLC COURT USE ONLY Case No. 2022CV30905 Division: A Courtroom: 506 ORDER RE: MOTION TO DISMISS This matter comes before the Court on Defendant Renegade Oil and Gas Company, LLC’s motion to dismiss. The Court has reviewed the motion, Plaintiff’s response, and Defendant’s reply. Being sufficiently a dvised of the premises, the Court is prepared to rule. BACKGROUND On May 25, 2022, the Director of Community and Economic Development (the “Director”) issued an interpretation pursuant to ACDS&R 3 - 05 - 01 findin g that Cryptocurrency Mining was not a use in the Use Chart and was not similar to any other described use and was therefore prohibited. Amended Compl. ¶ 40. The County (“Plaintiff”) brought action against Defendants Gayle L. Beauchamp, Hugo Orontes Gutier rez, and Renegade Oil and Gas Company, LLC (“Defendant”). Plaintiff sought a permanent injunction and a declaratory judgment validating the County’s interpretation of its regulations to the Board of Adjustments. Defendants Beauchamp DATE FILED: November 17, 2022 10:28 AM CASE NUMBER: 2022CV30905 and Orontes have not ap peared in this matter, and a motion for default judgment against them has been filed. The matter comes before the Court on Defendant Renegade’s motion to dismiss. ANALYSIS 1. Summary of the Parties’ Arguments Plaintiff argues that Pursuant to C.R.S. § 30 - 28 - 124(2), the County is entitled to seek injunctive relief for any proposed use of land in violation of the County’s Development Standards and Regulations. Plaintiff further argues that this issue is not moot because it is clearly capable of repetition, and the Defendants are only seeking to evade review of this court by temporarily removing the Cryptocurrency Mining off the subject properties. Lastly, Plaintiff argues that it has standing pursuant to C.R.C.P. 12(b)(1). In support, Plaintiff suggests that court’s have long acknowledged that litigants can use C.R.C.P. 57 to request the resolution of questions regarding the validity or interpretation of a piece of legislation. City of Boulder v. Pub. Serv. Co. of Colo. , 420 P.3d 289, 295 (Colo. 2018). In this case, the Plaintiff is seeking a declaratory judgment to resolve the controversy between the parties as to whether Cryptocurrency Mining is prohibited on the Properties pursuant to the County Regulations. See Moss v. Bd. of Cnty. Comm’rs , 411 P.3d 918, 922 - 923 (Colo. App. 2015). A declaratory judgment in this case is necessary as the judgment would terminate the controversy. C.R.S. § 13 - 15 - 110 Defendant argues that the issue is moot because they have removed the “gas selling facility” from the property. Therefore, the permanent injunction would have no legal effect. Moreover, Plaintiff cannot establish the three other factors necessary for a permanent injunction besides irreparable harm, given that irreparab le harm is not required to be proven under these circumstances. Lloyd A. Fry Roofing Co. v. State Dep't of Health Air Pollution Variance Bd. , 553 P.2d 800, 808 (Colo. 1976) (Where a governmental body acts pursuant to a statutory scheme intended to promote the health, welfare, convenience, etc. of the public and the injunction is sought on behalf of the public, the government need not make a showing of irreparable injury); Kourlis v. District Court , 930 P.2d 1329, 1336 (Colo. 1997). Lastly, Renegade argues t hat the Court lacks subject matter jurisdiction to issue a declaratory judgment because there is no case or controversy pursuant to C.R.C.P. 12(b)(1). 2. Standard of Review In resolving a motion to dismiss for failure to state a claim upon which relief can be granted, a court may consider only the facts alleged in the complaint, documents attached as exhibits or referenced in the complaint, and matters of which the court may take judicial notice, such as public records. Pena v. American Family Mut. Ins. Co. , 2018 WL 1959600 (Colo App. 2018). In ruling on a motion to dismiss for failure to state a claim the court must accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff. Denver Post Corp. v. Ritter , 255 P.3d 1083, 1088 (Colo. 2011). A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that a claimant can prove no set of fac ts in support of the claim which would entitle the claimant to relief. Tomar Development, Inc. v. Friend , 410 P.3d 578 (Colo. App. 2015). Rule 12(b)(1) of the Colorado Rules of Civil Procedure provides that a defendant may move for dismissal for lack of subject matter jurisdiction. The plaintiff bears the burden of proving jurisdiction. City of Boulder v. Pub. Serv. Co. of Colo. , 420 P.3d 28 9, 293 (Colo. 2018). A Plaintiff must have standing to confer subject matter jurisdiction on the Court. Hansen v. Barron's Oilfield Serv. , 429 P.3d 101, 103 (Colo. App. 2018) 3. Mootness In light of the case or controversy requirement that Colorado courts have read into the Colorado Constitution, courts generally will not enter a judgment once a dispute has become “moot,” that is, “a judgment, if rendered, would have no practical effect upon the exis ting legal controversy.” Van Schaack Holdings, Ltd. v. Fulenwider , 798 P.2d 424, 426 (Colo. 1990); see also People ex rel. Rein v. Meagher , 465 P.3d 554 (Colo. 2020). For example, an action to enjoin the construction of a building is mooted by completion o f the building. Zoning Bd of Adjustment of Garfield County v. DeVilbiss , 729 P.2d 353 (Colo. 1986). When events subsequent to the filing of a lawsuit ensure that a judgment will have no practical effect on the controversy between the parties, the case beco mes moot, and the court has no jurisdiction to entertain relief. Colorado Citizens for Ethics in Government v. Committee for American Dream , 187 P.3d 1207, 53 A.L.R.6th 711 (Colo. App. 2008). Here, Plaintiff sought an injunction requiring Defendants to, “ (1) cease operating a cryptocurrency data center on the Properties located at 36520 and 37550 E. 120th Avenue in unincorporated Adams County, Colorado.” These activities have ceased according to Plaintiff’s own admission. In Plaintiff’s Motion to Vacate Pr eliminary Injunction Hearing filed July 15, 2022, the County’s Senior Oil and Gas Inspector Keith Huck inspected the subject properties on that date. He observed that, “the Cryptocurrency mining operation had been moved off the site and was no longer opera ting on the Properties.” There have been no allegations by Plaintiff suggesting that the activities have resumed on these properties. For these reasons, the Court finds that a judgment would have no practical effect on the controversy between the parties, and Plaintiff’s request for issuance of a permanent injunction is moot. 4. Capable of Repetition Even if a case is found to be moot, dismissal is not required where the case presents an issue that is “capable of repetition yet evading review.” In re W.C. , 456 P.3d 1261 (Colo. 2020); Diehl v. Weiser , 444 P.3d 313 (Colo. 2019); Simpson v. Bijou Irrigation Co. , 69 P.3d 50 (Colo. 2003). Issues are capable of repetition when they could or are likely to reoccur in the future. People in Interest of Ofengand , 183 P.3d 688, 691 (Colo. App. 2008). Both Plaintiff and Defendant cite Ofengand to support their respective positions regarding this issue’s capability of repetition. 183 P.3d 688. In that case, the court elected to resolve the issue of whether a defenda nt validly waived her right to counsel. Id. Although moot, the court found the issue to be one capable of repetition yet evading review. Id. The court reached this result by finding that the record in that case suggested defendant’s “inability to trust or cooperate with professionals. . . will likely produce the same desire for self - representation.” Id. at 692. This case suggests that a likelihood, rather than mere possibility, of repetition is required to meet this general exception to the mootness doctrin e. Here, on February 17, 2022, Defendant filed a request for a variance with the Colorado Oil and Gas Conservation Commission (“COGCC”). Plaintiff asserts this is evidence that the issue of Cryptocurrency Mining on these properties is capable of repetitio n and seems to argue that the request for a variance involving these properties implies that Defendant intends to violate County land use ordinances. Plaintiff fails to note, however, that this variance was requested more than two months prior to Plaintiff ’s interpretation of the land use ordinance. Defendant suggests that even if the variance were granted, it has no intention to operate Cryptocurrency Mining on the properties at issue here, and Plaintiff offers no evidence to the contrary other than specul ation. While it is certainly possible that Defendant will continue Cryptocurrency Mining on these properties, Plaintiff has presented no evidence that there is a likelihood to that effect. See Ofengand , 183 P.3d 688, 692. Courts presume that people inten d to obey the law, not break it. Wilson v. Mosko , 130 P.2d 927, 930 (Colo. 1942). Therefore, the Court finds that Plaintiff’s request for issuance of a permanent injunction is moot, and it is not an issue which is capable of repetition yet evading review . As such, Plaintiff’s amended complaint fails to state claim on which relief can be granted. 5. Subject Matter Jurisdiction “Declaratory judgment proceedings may not be invoked to resolve a question which is nonexistent,” Taylor v. Tinsley , 330 P.2d 984 (Colo. 1958). A Plaintiff must have standing to confer subject matter jurisdiction on the Court. Hansen v. Barron's Oilfield Serv. , 429 P.3d 101, 103 (Colo. App. 2018). An existing controversy between the parties satisfies the “injury in fac t” prong of the test to establish standing for the purposes of a declaratory judgment action. Aurora Urban Renewal Auth. v. Kaiser , 507 P.3d 1033, 1038 (Colo. App. 2022) (to establish standing, a plaintiff must demonstrate an (1) injury in fact (2) to a le gally protected interest). A court has jurisdiction over a declaratory judgment action when rendering a judgment or decree would eliminate uncertainty or end the controversy. American Family v. Bowser , 779 P.2d 1376, 1379 (Colo. App. 1989). The question of whether a justiciable controversy exists in the context of a declaratory judgment action concerns whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of su fficient immediacy and reality to warrant the issuance of a declaratory judgment. Id. at 1380 (internal quotation marks and citation omitted). Here, Plaintiff is seeking a declaratory judgment to resolve the controversy between the parties as to whether Cryptocurrency Mining is prohibited on the Properties pursuant to the County Regulations. Importantly, the record shows that on May 25, 2022, the Director of Community and Economic Development (the “Director”) issued an interpretation pursuant to ACDS&R 3 - 05 - 01 finding that Cryptocurrency Mining was not a use in the Use Chart and was not similar to any other described use and was therefore prohibit ed. (Amended Compl. ¶ 40) (emphasis added). As such, any appeal of the Director’s written interpretation had to be made within ten calendar days of the date of the written decision. ACDS&R Section 2 - 02 - 21 - 04. Defendant’s appeal was not timely, and therefo re, the Director’s written interpretation is final. The finality of Plaintiffs’ availing interpretation effectively ended Plaintiff’s claimed controversy in this matter. When parties seek declaratory relief, there must be an actual controversy. Boulder Cou nty Apartment Ass'n v. City of Boulder , 97 P.3d 332 (Colo. App. 2004). CONCLUSION For the reasons stated above, Plaintiff’s complaint does not state a claim for which relief may be granted, and the Court must also dismiss for lack of subject matter jurisdiction. * * * Based on the foregoing, it is therefore ORDERED as follows: 1. Defendant Renegade Oil and Gas Company, LLC’s Motion to Dismiss is GRANTED SO ORDERED this 17 th day of November , 2022. BY THE COURT: Mark D. Warner District Court Judge