                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUN 26 2003
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    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.                                                 No. 01-1482
                                                  (D.C. No. 00-PC-1243)
    KATHERINE M. HONEA;                                 (D. Colo.)
    GARFIELD COUNTY, BOARD OF
    COUNTY COMMISSIONERS; USDA
    FOREST SERVICE, an agency of the
    United States of America,

                Defendants-Appellees.


                            ORDER AND JUDGMENT          *




Before BRISCOE , PORFILIO , and ANDERSON , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision 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 declaratory judgment that an

easement grant across land owned by defendant Katherine M. Honea is a public

road which may be used for all lawful public purposes, 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 Ranch 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

1
      This order and judgment refers to Intermountain Resources, L.L.C.,
Intermountain Ranches, L.L.C., and Norman Carpenter collectively as
“plaintiffs.”
2
      After the expiration of the filing period, Ms. Honea 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-
public road.” Appellant’s App. at 116. The grant also provided that “[e]ither

party may enforce this instrument by appropriate action and should he prevail in

such litigation, he shall recover as part of his costs a reasonable attorney’s fee.”

Id. CDOW recorded the easement grant, then conveyed it to the United States

Forest Service. The agreement between CDOW and the Forest Service omitted

the attorney’s fee provision and required the Forest Service to construct and

maintain a road upon the easement premises. Following the Forest Service’s

construction of the road, which became known as the VonDette Road, hunters,

fishermen, wildlife viewers, skiers, and snowmobilers 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 permit to harvest timber on

a neighboring property, designating the VonDette Road as part of the route for

transporting logging machinery, trucks, and harvested timber. Defendant Garfield

County Board of County Commissioners approved a special 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 authorize commercial vehicle travel


                                          -3-
for private purposes. Plaintiffs filed suit; Ms. Honea 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 dedication of the VonDette Road as

a public road which may be used for all lawful public purposes. Further, the court

denied Ms. Honea’s counterclaim for trespass.

       The court, however, declined to grant plaintiffs’ request for attorney’s fees.

Applying Colorado law, it rejected plaintiffs’ argument that, as third-party

beneficiaries, they were entitled to enforce the attorney’s fee provision of the

easement grant. Because the express language of the 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 arbitration 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



3
      The parties consented to a magistrate judge’s determination of the case
under 28 U.S.C. § 636(c)(1).

                                               -4-
Comm’rs v. Ogburn , 554 P.2d 700, 702-03 (Colo. Ct. App. 1976) (limiting

a prescriptive public easement to extent of prior public usage). As a result,

defendants were not entitled to an award of fees against Ms. Honea under

Colo. Rev. Stat. § 13-17-102, which provides for assessment of fees against

a party in a civil action whose claims or defenses lack substantial justification.

As to the Garfield County Board of County Commissioners, 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 assessment of fees against it. This

appeal followed.


                                    DISCUSSION

      The issues on appeal relate solely to whether the magistrate judge erred in

failing to award reasonable attorney’s fees to plaintiffs. “This court reviews a

district court’s refusal to grant attorney’s fees for abuse of discretion. Underlying

factual findings are reviewed for clear error; legal 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).



                                           -5-
      We have fully considered plaintiffs’ arguments and reviewed the record

supplied by the parties. We discern no error and no abuse of discretion in the

magistrate judge’s analysis of the attorney’s fee issues. Therefore, for

substantially the same reasons as the magistrate judge 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




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