The group fighting artist Christo’s longstanding plan to drape the Arkansas River with translucent fabric is pleading with the Colorado Supreme Court.
After Rags Over the Arkansas River lost its argument in the Colorado Court of Appeals in February, the group on Thursday asked the state’s highest court to review the appeals court’s decision in the latest of many failed legal attempts to thwart Christo’s Over The River project.
The Court of Appeals on Feb. 12 rejected ROAR’s request to reverse the Colorado State Parks’ approval of Christo’s plan to suspend fabric across 5.9 miles of the Arkansas River between Salida and Cañon City. The group argued the parks division — now Colorado Parks and Wildlife — failed to follow its own regulations when it approved Over The River in 2011, a week shy of its merger with the Colorado Wildlife Commission, which opposed the installation.
The appeals court agreed that the parks division’s decision to approve the project through a cooperative agreement instead of a special activities permit violated procedure, calling the permitting shift “arbitrary and capricious.”
But the three-judge panel ultimately ruled the permitting change was a “harmless error,” citing 13 years of intensive study and the parks division’s requirement that Christo follow the mitigation terms outlined in the 1,700-page Environmental Impact Statement by the Bureau of Land Management. Late last month the Colorado Court of Appeals denied ROAR’s plea for a re-hearing.
ROAR, in its petition, is asking the state Supreme Court to define “harmless error” even when a court decides an agency did not follow its own procedural regulations. ROAR also wants the Supreme Court to deny the parks division’s reliance on the BLM’s environmental review.
“The error of the court of appeals lies in its conclusion that ROAR, and the public, suffered no prejudice when the Board short-circuited its own regulations,” reads ROAR’s filing. “The Board’s actions, and the court of appeals decision upholding them, threaten more than the natural beauty of the Arkansas Headwaters, or the citizens and wildlife living there. The harm is to the Constitution, to the individual’s guarantee that state agencies will follow the procedures set forth in their regulations, and Colorado’s role as an independent sovereign in our federal system.”
Jason Blevins: 303-954-1374, jblevins@denverpost.com or twitter.com/jasonblevins
