Theresa Wardon Benz, Molly Kokesh, Makenna Johnson, Logan Venclauskas
On June 23, 2026, in In re Arrowhead Colorado Metropolitan District v. Roxborough Park Foundation, 2026 CO 54, the Colorado Supreme Court held that trial courts have discretion to order discovery before immediate possession hearings in eminent domain proceedings.
Eminent domain proceedings generally require resolution of three questions:
- whether the condemnor has the right to take the property;
- how much just compensation the condemnor must pay for the taking; and
- if necessary, how to apportion the just compensation award among those who own interests in the property being condemned.
When a condemnor requests immediate possession, the court must resolve all issues bearing on the right to condemn before granting that request—requiring a full evidentiary hearing early in the case, much like a proceeding on a preliminary injunction.
In In re Arrowhead Colorado Metropolitan District v. Roxborough Park Foundation, Arrowhead Colorado Metropolitan District (“Arrowhead”), a quasi-municipal corporation and political subdivision, filed a petition to condemn easements over private roads owned by the Roxborough Park Foundation (the “Foundation”) in Roxborough Park, Douglas County. Upon filing the Petition, Arrowhead moved to set a hearing on its request for immediate possession under section 38-1-105(6)(a), C.R.S., and the trial court set the hearing as required by statute and Colorado case law.
With an immediate possession hearing set, the Foundation moved for limited, expedited discovery, arguing it was necessary to prepare for issues it planned to raise at the hearing. The trial court denied the motion, concluding that neither Colorado’s eminent domain statutes (sections 38-1-101 to -122, C.R.S.) nor the Colorado Rules of Civil Procedure permitted such discovery. The trial court reasoned that the Rules allow discovery only after entry of a case management order, which itself requires the case to be “at issue” under C.R.C.P. 16(b)(1). Because condemnation proceedings do not require responsive pleadings, the court concluded such cases can never be “at issue,” making discovery categorically unavailable. The Foundation sought relief under C.A.R. 21, and the Colorado Supreme Court granted the petition.
In its decision, the Colorado Supreme Court acknowledged that the condemnation statutes (sections 38-1-101 to -122, C.R.S.) are silent on discovery but held that this silence does not eliminate discovery rights. Citing section 38-1-121(3), C.R.S., which expressly preserves “the discovery rights of parties to eminent domain proceedings,” the Court found that the legislature intended to maintain those rights. Because the statutes are silent on procedure, however, the Court then turned to the Rules of Civil Procedure.
The Court identified three provisions in Colorado’s Rules that authorize trial courts to order discovery, when appropriate, even if a case is not “at issue.”
First, the Court noted that Rule 26(d)’s statement that “a party may not seek discovery from any source before [] service of the Case Management Order pursuant to C.R.C.P. 16(b)” is preceded by the qualifier “[e]xcept when authorized by these Rules, by order, or by agreement of the parties.” Under this plain language, the Court held that a trial court may allow discovery before a case management order is served—and that the trial court here could have authorized discovery on that basis alone.
Second, the Court held that trial courts’ discretion under Rule 26(b)(2) to limit discovery for “good cause shown,” based on the factors in C.R.C.P. 26(b)(2)(F), also allows a court to permit discovery before an immediate possession hearing in a condemnation proceeding where good cause exists.
Third, the Court determined that Rule 16(b)(1) establishes two alternative paths for deeming a case “at issue”: (1) when all parties have been served and all required pleadings have been filed, or (2) “at such other time as the court may direct.” The Court reasoned that the second path allows trial courts to order prehearing discovery in condemnation proceedings by deeming the case “at issue” despite the absence of responsive pleadings.
Arrowhead clarifies that although condemnation cases are strict statutory proceedings, trial courts retain flexibility to apply the Colorado Rules of Civil Procedure to discovery requests just as they would in any other civil proceeding. Specifically, upon a showing of good cause, either party may ask the court for leave to conduct discovery that may not otherwise be automatic.
Because courts may grant possession as early as thirty days after service of a condemnation petition, a party who believes there is good cause for expedited discovery ahead of an immediate possession hearing should seek leave from the court to conduct such discovery early in the proceedings.
The Court reversed and remanded for the trial court to exercise its discretion on the discovery motion.
The unanimous opinion was authored by Justice Blanco.
For questions about this legal alert, please contact a member of the Davis Graham Appellate Group.