Colorado Bull Elk

A hunter who challenged the Parks and Wildlife Commission’s imposition of a new big game hunting requirement had his case dismissed in the Court of Appeals last Thursday for failure to sue in a timely manner.

Donald T. Trinen, a 35-year elk hunter, filed a lawsuit against the commission after it issued a rule change in November 2018. For big game hunting, the state is divided geographically into game management units, with some regions having a limit on the number of licenses and others with no limit. There is a lottery to allocate the limited licenses, after which any leftover licenses are sold on a first-come, first-served basis.

To participate in the big game lottery, the change required a person to purchase a small game license, combination small game/fishing license, or spring turkey license in the same calendar year. (An amendment to the rule added a free license for veterans as another option.) Trinen’s lawsuit alleged that the commission effectively raised the price of an elk license above the statutory amount of $53, plus fees, through the requirement to purchase a second license.

A Denver District Court judge dismissed the claim, saying Trinen failed to file it within 35 days of the agency’s action as the law mandated. Trinen countered that the commission took action in November and the rule went into effect in January 2019. He was not “adversely affected or aggrieved” until after the time window because he was not a party to the rulemaking.

Writing for the three-member appeals panel, Judge Gilbert M. Román explained that any person could have sued, regardless of whether they were involved with the process. Trinen had until Feb. 5 of that year to sue — 20 days sooner than when he did file his complaint on Feb. 25. The court rejected the notion that the 35-day limit was unconstitutional, saying Trinen could take his request to change the rule back to the commission and appeal their decision to district court if he wished.

The court declined to examine the validity of the rule for this reason. The case is Trinen v. Parks and Wildlife Commission.

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