* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 26 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

INTERMOUNTAIN RESOURCES, L.L.C., a Colorado Limited Liability Company; INTERMOUNTAIN RANCHES, L.L.C., a Colorado Limited Liability Company; NORMAN A. CARPENTER,

Plaintiffs-Appellants,

v. KATHERINE M. HONEA; GARFIELD COUNTY, BOARD OF COUNTY COMMISSIONERS; USDA FOREST SERVICE, an agency of the United States of America,

Defendants-Appellees. No. 01-1482 (D.C. No. 00-PC-1243) (D. Colo.)

ORDER AND JUDGMENT *

Before BRISCOE , PORFILIO , and ANDERSON , Circuit Judges.1 This order and judgment refers to Intermountain Res ources, L.L.C.,

Intermountain Ranches, L.L.C., and Norman Carpentercollectively as “plaintiffs.”

2 After the expiration of the filing period, Ms. Hone a filed a notice of appeal, attempting to appeal the adverse judgment. Because a timely notice of appeal is both mandatory and jurisdictional, a panel of this court dismissed the cross-appeal (No. 01-1511) on April 5, 2002. In the same order, the panel ordered the parties to proceed with briefing in the instant case. -2- After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. In the district court, plaintiffs obtained a declar atory judgment that an easement grant across land owned by defendant Kathe rine M. Honea is a public road which may be used for all lawful public purpos es, including plaintiffs’ intended use for transporting logging machinery and harvested logs. 1 They now appeal from the denial of their motion for attorney ’s fees incurred in seeking the judicial declaration. 2 We affirm.

BACKGROUND Ms. Honea purchased land known as Beaver Creek Ranc h in 1998 with knowledge of an easement grant executed in 1976 by Tom VonDette, a former owner of the property. The easement grant conveyed to Colorado Division of Wildlife (CDOW) a thirty-foot right-of-way across the ranch for a “perpetual-3-

public road.” Appellant’s App. at 116. The grant also provided that “[e]ither party may enforce this instrument by appropriate ac tion and should he prevail in such litigation, he shall recover as part of his co sts a reasonable attorney’s fee.” Id. CDOW recorded the easement grant, then conveyed i t to the United States Forest Service. The agreement between CDOW and the Forest Service omitted the attorney’s fee provision and required the Fores t Service to construct and maintain a road upon the easement premises. Follow ing the Forest Service’s construction of the road, which became known as the VonDette Road, hunters, fishermen, wildlife viewers, skiers, and snowmobile rs used the road for vehicular access to Forest Service lands. The VonDette Road was also used by trucks pulling horse trailers and a one-ton farm truck. In 1997, the Forest Service granted plaintiffs a pe rmit to harvest timber on a neighboring property, designating the VonDette Ro ad as part of the route for transporting logging machinery, trucks, and harvest ed timber. Defendant Garfield County Board of County Commissioners approved a spe cial use permit to harvest the timber, but conditioned issuance of the permit on plaintiffs’ obtaining a judicial decree that the VonDette Road is a legal right-of-way for the proposed use. Ms. Honea objected to the use of the easement over her property, asserting that the terms of the easement grant did not author ize commercial vehicle travel3 The parties consented to a magistrate judge’s determination of the case

under 28 U.S.C. § 636(c)(1). -4- for private purposes. Plaintiffs filed suit; Ms. H onea filed a counterclaim for trespass. A magistrate judge held a bench trial, 3 then issued a thorough and thoughtful memorandum opinion and order holding that the easement grant and subsequent events resulted in a common-law dedicati on of the VonDette Road as a public road which may be used for all lawful publ ic purposes. Further, the court denied Ms. Honea’s counterclaim for trespass. The court, however, declined to grant plaintiffs’ r equest for attorney’s fees. Applying Colorado law, it rejected plaintiffs’ argu ment that, as third-party beneficiaries, they were entitled to enforce the attorney’s fee provision of the easement grant. Because the express language of th e easement grant did not provide for an attorney’s fee award to members of the public seeking to enforce the grant, plaintiffs were not entitled to their attorney’s fees. See Parker v. Ctr. for Creative Leadership , 15 P.3d 297, 299 (Colo. Ct. App. 2000) (holding that a third-party beneficiary was bound by the arbitrat ion clause of a contract, but was not obligated under an attorney’s fee provision applying to “ any party ” filing a judicial action). Further, the court determined that Ms. Honea’s case was supported by credible evidence at trial and was rational under Colorado law. See Bd. of County-5-

Comm’rs v. Ogburn , 554 P.2d 700, 702-03 (Colo. Ct. App. 1976) (limit ing a prescriptive public easement to extent of prior p ublic usage). As a result, defendants were not entitled to an award of fees ag ainst Ms. Honea under Colo. Rev. Stat. § 13-17-102, which provides for as sessment of fees against a party in a civil action whose claims or defenses lack substantial justification. As to the Garfield County Board of County Commissio ners, the court concluded that Garfield County had not taken any position in the case and, therefore, section 13-17-102 provided no basis for an assessme nt of fees against it. This appeal followed.

DISCUSSION The issues on appeal relate solely to whether the m agistrate judge erred in failing to award reasonable attorney’s fees to plai ntiffs. “This court reviews a district court’s refusal to grant attorney’s fees f or abuse of discretion. Underlying factual findings are reviewed for clear error; lega l conclusions are reviewed de novo .” Bravos v. EPA , 324 F.3d 1166, 1171 (10th Cir. 2003) (quotation omitted). “[A] district court, sitting in diversity, must apply the substantive law of the state in which it sits . . . in resolving an attorney’s fee issue in a contract suit.” Boyd Rosene & Assocs., Inc. v. Kan. Mun. Gas Agency, 123 F.3d 1351,1352 (10th Cir. 1997).-6-

We have fully considered plaintiffs’ arguments and reviewed the record supplied by the parties. We discern no error and n o abuse of discretion in the magistrate judge’s analysis of the attorney’s fee i ssues. Therefore, for substantially the same reasons as the magistrate ju dge stated in the order dated August 30, 2001, we AFFIRM the judgment of the district court.

Entered for the Court

Stephen H. Anderson Circuit Judge