A Colorado court has for a second time upheld a state agreement allowing Christo to drape the Arkansas River in fabric panels as part of a two-week public art installation.
The Colorado Court of Appeals on Thursday affirmed a 2011 approval of Christo’s “Over the River” plan by Colorado State Parks, denying an appeal filed by the Rags Over the Arkansas River — or ROAR. The group is fighting the artist’s plan to suspend shimmering fabric over 5.9 miles of a 42-mile stretch of the Arkansas River between Salida and Cañon City.
The decision ends a lawsuit ROAR filed in 2013 arguing Colorado State Parks — now Colorado Parks and Wildlife — failed to follow its own regulations when it issued Christo’s Over The River corporation a special permit.
The Court of Appeals agreed that the parks division failed to adhere to its own regulations, noting that the division spent 13 years studying the project under its special activities permit regulation but in June 2011, weeks before the agency merged with the Christo-opposing Colorado Wildlife Commission, the parks division board approved the project through a cooperative agreement.
The three-judge panel that is the Court of Appeals spent pages in the ruling dismantling the parks division argument that regulations allowed it to switch from special permit approval to an agreement.
“The parks division’s decision to abandon the regulation and approve the project through the agreement is inconsistent with the regulation’s plain language,” reads the ruling. “Accordingly, we conclude that the parks division’s decision to abandon the special activities permitting regulation and authorize the project through the agreement was arbitrary and capricious.”
However, the Court of Appeals rejected ROAR’s argument that the parks division’s approval was not supported by strong evidence, noting 13 years of intensive study that included site visits and reviews of the Bureau of Land Management’s 1,700-page draft Environmental Impact Statement analyzing the project.
Ultimately the Court of Appeals agreed with the parks division’s contention that any error its board made in failing to comply with the special activities permitting regulations was harmless. It ruled that the parks boards’ review of the project “complied with the substance of the special activities permitting regulation.”
“At bottom, ROAR’s disagreement with the authorization of the project is a disagreement with the project itself — not the process used to approve the project,” reads the ruling. “But that is not enough to establish the prejudice necessary to invalidate an agency action.”
The decision is ROAR’s fourth legal challenge that has failed to stop the project, which Christo and his late wife, Jeanne-Claude, first proposed in 1996. The group, in a statement, said it was disappointed with the ruling and considering options for further appeal to the Colorado Supreme Court.
“This is still a long way from being done. ROAR intends to stop the OTR project,” ROAR spokeswoman Joan Anzelmo said.
A U.S. District Court ruling last month upheld the BLM’s 2011 approval of the project, dismissing ROAR’s claim the agency failed to follow federal environmental guidelines when it approved the art installation in Big Horn Canyon. In that ruling, U.S. District Judge William Martinez shared a similar sentiment expressed by the Court of Appeals on Thursday: ROAR’s arguments boil down general opposition to the project and its approval, and disagreement is not enough to warrant reversing previous court decisions.
ROAR in late January filed an appeal of Martinez’s Jan. 8 ruling.
Christo, who is paying for the estimated $50 million project and all the federal review with his own money, has yet to set a date for the two-week display of his installation, which will take roughly 27 months to erect.
In a statement, Christo said the Court of Appeals ruling and the federal court decision last month “puts us much closer to realizing the vision that Jeanne-Claude and I first had more than two decades ago.”
“These two favorable court rulings are a victory for the countless supporters from Colorado and around the world who have stood with us wanting to see Over The River realized,” Christo said. “Their steady and strong support over the years helped get us to where we are today.”
Jason Blevins: 303-954-1374, jblevins@denverpost.com or twitter.com/jasonblevins
