IN THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF COLORADO 

Chief Judge Wiley Y. Daniel

Civil Action No. 11-cv-02579-WYD-BNB 

HARRY G. MARXMILLER, 

Plaintiff, 

v. 

BOARD OF COUNTY OF COMMISSIONERS OF BOULDER COUNTY, COLORADO, 

Defendant. 

ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF 

UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION 

THIS MATTER is before the Court on the Defendant’s Motion to Dismiss (ECF 

No. 4), filed October 21, 2011. The matter was referred to Magistrate Judge Boland for 

a Recommendation by Order of Reference dated October 5, 2011. On July 10, 2012, 

Magistrate Judge Boland issued a Recommendation (ECF No. 15), which is 

incorporated herein by reference. See 28 U.S.C. ' 636(b)(1), Fed. R. Civ. P. 72(b), 

D.C.COLO.LCivR. 72.1. Magistrate Judge Boland recommends therein that 

Defendant’s motion to dismiss be granted without prejudice for lack of subject matter 

jurisdiction. Magistrate Judge Boland advised the parties that they had fourteen (14) 

days to serve and file written, specific objections to the Recommendations. On July 24, 

2012, Plaintiff filed objections to the Recommendation which necessitates a de novo 

determination as to those specified proposed findings or recommendations to which 

objection is made since the nature of the matter is dispositive. Fed. R. Civ. P. 72(b); 28 

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U.S.C. ' 636(b)(1). 

II. BACKGROUND 

As more thoroughly discussed by Magistrate Judge Boland in his 

Recommendation, this action involves a dispute over a 5.5 acre parcel of land (the 

“Property”) located in unincorporated Boulder County. In 1993, Plaintiff purchased the 

Property. The Boulder County Board of County Commissioners (the “Board”) granted 

Plaintiff permission to build on the Property “but required him to grant a conservation 

easement to Boulder County. The plaintiff was required to procure water from the City 

of Longmont and tie into the city’s sewer system. . . . He had to relinquish two shares of 

his water rights, which were valued at $28,000. In addition, he had to pay all of the 

required fees.” (Recommendation at 2-3). In 2010, Plaintiff asked the Board to lift the 

conservation easement and allow him to subdivide the Property. The Board refused to 

lift the easement. Consequently, Plaintiff commenced this lawsuit claiming that the 

Board’s actions violate the Fifth Amendment’s Takings Clause and the Fourteenth 

Amendment’s Equal Protection Clause. 

III. RECOMMENDATION 

 Magistrate Judge Boland noted that in its motion, the Defendant challenges the 

Court’s subject matter jurisdiction by asserting that the Plaintiff’s claim under the Takings 

Clause is not ripe because Plaintiff failed to pursue a state law inverse condemnation 

claim. (Recommendation at 4). 

A. Standard of Review 

As courts of limited jurisdiction, federal courts may only adjudicate cases that the 

Constitution and Congress have granted them authority to hear. Todd Holding Co., Inc. v. 

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v. Super Value Stores, Inc., 744 F. Supp. 1025, 1026 (D. Colo. 1990). Thus, the court 

must satisfy itself of subject matter jurisdiction before proceeding to the merits of a claim.

Gold v. Local 7 United Food and Commercial Workers Union, 159 F.3d 1307, 1309-10 

(10th Cir. 1998). "[T]he burden is on the party claiming jurisdiction to show it by a 

preponderance of the evidence." Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994). 

"Mere conclusory allegations of jurisdiction are not enough." United States, ex rel. Hafter 

v. Spectrum Emergency Care, Inc., 190 F.3d 1196, 1160 (10th Cir. 1999). Where a party 

moves to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 

12(b)(1), the attack can be either a facial attack to the allegations of the complaint or a 

factual attack. Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990). Where 

there is a facial attack, the court must look to the factual allegations of the Complaint. 

Groundhog v. Keller, 442 F.2d 674, 677 (10th Cir. 1971). In a factual attack, the court 

may consider matters outside the pleadings, and the motion is not converted to a motion 

for summary judgment. Id.; Cizek v. United States, 953 F.2d 1232, 1233 (10th Cir. 1992). 

1992). 

B. Discussion 

Magistrate Judge Boland correctly noted that the Takings Clause of the Fifth 

Amendment reads as follows: “nor shall private property be taken for public use, 

without just compensation.” U.S. Const. amend. V. “[T]he Takings Clause does not 

prohibit the taking of private property for public use, but rather requires compensation 

when a taking occurs. Such compensation does not have to be contemporaneous with 

the taking, so long as there is an adequate provision for obtaining compensation that 

exists at the time of the taking.” Alto Eldorado Partnership v. County of Santa Fe, 634 

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F.3d 1170, 1174 (10th Cir. 2011). 

Magistrate Judge Boland found that a claim asserted under the Takings Clause 

must be ripe. (Recommendation at 4). Pursuant to Tenth Circuit authority and 

Colorado law, Magistrate Judge Boland concluded that “Colorado has a procedure 

through which the plaintiff may seek compensation for the County’s regulation of his 

property.” (Recommendation at 4-5). Thus, since “the state provides a mechanism for 

seeking compensation, the property owner must utilize the procedure and be denied 

just compensation before a takings claim is ripe.” Alto Eldorado Partnership, 634 F.3d 

at 1173. Magistrate Judge Boland determined that Plaintiff failed to allege that “he 

brought an inverse condemnation action prior to asserting his takings claim in this court. 

His allegations that he wrote letters to and had conversations with the Board are 

insufficient to establish that his takings claim is ripe.” (Recommendation at 5-6). 

Magistrate Judge Boland went on to conclude that since Plaintiff’s “equal protection 

challenge arises from the same facts as his takings claim, the equal protection claim 

also is not ripe for review.” (Recommendation at 6). Accordingly, Magistrate Judge 

Boland recommends that Defendant’s motion to dismiss be granted without prejudice 

for lack of subject matter jurisdiction. 

On July 24, 2012, Plaintiff filed a “response” to Magistrate Judge Boland’s 

Recommendation, which I construe as a timely objection pursuant to 28 U.S.C. 

§ 636(b)(1)(C) and Fed. R. Civ. P. 72(b). In his objection, Plaintiff cites excerpts from 

the Recommendation along with various orders issued in this case by both myself and 

Magistrate Judge Boland. See ECF No. 2, Order of Reference to Magistrate Judge and 

and ECF No. 15, Recommendation. Plaintiff goes on to argue that had he been given 

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the opportunity to participate in discovery, additional non-dispositive motions, and an 

evidentiary hearing, he could have “persuaded the court that it has jurisdiction over the 

case.” (Objection at 2-3). However, I do note that while Plaintiff substantively 

responded to the motion to dismiss in his response, he failed to mention that he was 

never afforded the opportunity to present his case. Also, in the objection, Plaintiff failed 

to specifically challenge or even address Magistrate Judge Boland’s conclusion that the 

Takings Claim is not ripe. A party’s objections to a recommendation must be both 

timely and specific to preserve an issue for de novo review by the district court. See 

United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996). For 

these reasons, Plaintiff’s general objection is overruled. I find that Plaintiff had the 

opportunity, through the briefing on the motion to dismiss, to present his arguments to 

Magistrate Judge Boland. 

Based on my review of the relevant record and controlling law, I agree with 

Magistrate Judge Boland that this Court does not have subject matter jurisdiction over 

Plaintiff’s Takings Claim as it is not ripe. Having reviewed the Recommendation, I am 

satisfied that there is no clear error on the face of the record. I find that Magistrate 

Judge Boland’s Recommendation is thorough, well reasoned and sound. I agree with 

Magistrate Judge Boland that Defendant’s motion to dismiss should be granted without 

prejudice for the reasons stated in both the Recommendation and this Order. 

IV. CONCLUSION 

Based on the foregoing, it is 

ORDERED that the Recommendation of United States Magistrate Judge Boland 

(ECF No. 15) is AFFIRMED AND ADOPTED. In accordance therewith, it is 

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FURTHER ORDERED that the Defendant’s Motion to Dismiss (ECF No. 4) is 

GRANTED to the extent that it seeks dismissal of this case for lack of subject matter 

jurisdiction. This matter is DISMISSED WITHOUT PREJUDICE. 

Dated: September 13, 2012 

BY THE COURT: 

s/ Wiley Y. Daniel 

Wiley Y. Daniel 

Chief United States District Judge 

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