Garfield County commissioners have decided to join a class-action lawsuit with the goal of recovering underpayments by the federal government under its Payment in Lieu of Taxes program, while Mesa County is still considering the matter.
Garfield's decision means it could recover an estimated $122,000 minus attorney fees potentially amounting to about a third of that amount. The recovery also is still subject to potential appeal by the federal government.
Counties have until Sept. 14 to decide whether to join the suit, brought by Kane County, Utah. A U.S. Court of Federal Claims judge ruled in the case that the government is liable for underpayments between 2015-17 in connection with the program, which is intended to help offset the lack of property tax collections involving federal lands. The underpayments resulted from Congress appropriating too little money for the Department of Interior to make full payments under a formula that considers acres and population variables.
Mesa County could be due $117,000 in the case, but again that would likely be reduced by attorney fees.
The firm handling the suit has said it plans to seek court approval for fees amounting to a third of the recovered amount, plus an expected fraction of a percent to cover expenses.
Mesa County Administrator Frank Whidden said Friday that he believes Mesa commissioners "are still assessing what other counties are going to do."
"We all hate to lose 33 percent or more in attorneys' fees," he said.
According to the website of Smith, Currie & Hancock LLP, the firm handling the suit, 14 counties in Colorado are now among the counties nationwide that have joined the suit. That's up from nine counties in Colorado as of a few weeks ago.
Colorado Counties Inc. has said it doesn't think counties can recover underpayments more cheaply than by joining the suit, given the amount of underpayments involved.
Garfield County Attorney Tari Williams told Garfield commissioners that while there have been other options discussed by counties, "none of them seem to gain you anything, and (they) possibly create additional hurdles and take longer."
Garfield commissioners had worried that joining the suit could cause political backlash. Garfield Commissioner John Martin was able to meet with representatives from Kane County and some other participants in the suit and was assured there would be no adverse effects.
"They say you're entitled to it, accept it, go on from there," he said.
Garfield commissioners directed their staff to write Kane County a letter of thanks for its leadership in the case.
The PILT program was fully funded this year, and under its formula Mesa County received the largest payment of any government in Colorado — nearly $3.6 million, involving more than 1.5 million acres of land. Garfield County received $3.2 million for nearly 1.2 million acres, the second-highest amount statewide.