specially concurring.
The district court dismissed this case based on plaintiffs' failure to exhaust administrative remedies. It did not reach the merits of their statutory claim that hunting is precluded in all areas closed by a county firearms resolution under section 30-15-802(1), C.R.$.2009.
For us to reach any substantive issue under the statute, we first would need to decide that the district court erred in requiring plaintiffs to exhaust their administrative remedies. Hamilton v. City & County of Denver, 176 Colo. 6, 12, 490 P.2d 1289, 1292 (1971) (only after holding that exhaustion was not required did court conclude it "may reach the substantive issues"). Otherwise, the merits are not properly before us. See Eiscaler v. U.S. Citizenship & Immigration *746Services, 582 F.3d 288, 289 (2d Cir.2009) ("We affirm on the ground that appellant failed to exhaust his administrative remedies, and, therefore we cannot reach the merits."); 2 Richard J. Pierce, Jr., Administrative Law Treatise § 15:4, at 1001 (4th ed. 2002) (recognizing that logic suggests "a court may not decide the merits until it has first decided that exhaustion law allows it to decide the merits").
The majority agrees exhaustion is "the sole issue before us." But, while professing to express no opinion on the merits of plaintiffs' claims, it proceeds to conduct plenary review of the substantive statute on which those claims are based.
I would not conflate exhaustion and the merits. Though one commentator suggests "practical" reasons why courts' "preliminary impressions about the merits" may influence exhaustion decisions, see 2 Pierce, supra, § 15:4, at 1001, I am not persuaded such conflation is conducive to principled decision-making. Nor am I persuaded there is any practical benefit to conflation.
Confusion is spawned by conflating exhaustion and merits. The only issue actually decided by the majority is that the case was properly dismissed based on plaintiffs' failure to exhaust administrative remedies. That decision is arguably moot (because plaintiffs since exhausted) and not particularly significant.
There is significance to the legal effect of section 30-15-302(1), and much of the majority opinion interprets this statute. It does so, however, "only to resolve [the] exhaustion" issue. The opinion leaves unsettled what binding effect, if any, the majority intends its statutory discussion to have.
We should decide, without construing the substantive statute, whether plaintiffs are entitled to judicial resolution of the merits. There is an argument that exhaustion should not be required because plaintiffs' statutory claim raises a purely legal issue not committed to agency discretion. See State v. Golden's Concrete Co., 962 P.2d 919, 928 (Colo. 1998). But plaintiffs' statutory claim is intertwined with heavily fact-dependent claims regarding the danger of hunting in this particular area. Because resolution of such claims would benefit from considered agency review, the district court did not err in requiring plaintiffs first to pursue available administrative remedies.
I accordingly concur in the decision affirming dismissal of the complaint on procedural grounds. I do so, however, without expressing any opinion on the merits of plaintiffs' claims.