Chief Judge Denies Temporary Restraining Order

JOANN KALENAK, DCCR SENIOR BLOGGER — On Wednesday, Chief Judge J. Steven Patrick denied a temporary restraining order motion to stop Gunnison Energy from moving forward on two seismic mapping projects in Delta County’s Trail Gulch and Iron Point areas. While Patrick acknowledged that the county’s specific development application process showed deficiencies, he believed that Citizens for a Healthy Community (CHC), the organization that filed the motion, had not proved that they would suffer irreparable harm if the projects moved ahead — a mandate for such an order.

In his decision reasoning, Judge Patrick described how testimony revealed that information had been omitted from the application record and that other information had been added to the record after county planning director Elyse Ackerman-Casselberry had made the administrative decision to approve the application. Patrick called for the county to provide a certified copy of the final application record before proceeding with the primary lawsuit filed by CHC on June 12.

Judge Patrick’s decision came after more than six hours of testimony from witnesses called by lawyers representing each party — Delta County, CHC and Gunnison Energy who won status as an intervening defendant.

CHC attorney Chris Mochulsky strongly objected to Gunnison Energy’s participation stating that CHC was not arguing against the two seismic mapping projects but, rather, the way in which Delta County had processed the applications. Mochulsky contended that the county was already present to defend the Gunnison Energy applications. Patrick denied CHC’s motion to set aside his earlier decision to grant Gunnison Energy participation status citing possible grounds for dismissal if Gunnison Energy appealed.

In Mochulsky’s opening statement, he said that the county’s regulations allow some administrative discretion but they also require certain information so that an informed decision could be made.

County Attorney John Baier countered by explaining that state law gives the county “wide discretion” in making planning decisions; and Gunnison Energy contract attorney Kent Holsinger hung his arguments on the “low impact” nature of the activity that would be performed during the seismic mapping process.

Information and studies detailing geological hazards, ground water contamination and unhampered water flows were the primary focus of Mochulsky’s questioning. CHC’s expert witness Dr. David Noe, a former manager for Colorado Geological Survey (CGS) with responsibility for mapping much of the North Fork Valley, testified that the comment letter provided by CGS appeared to be little more than a canned response used when “little-to-no geological information has been provided by the requesting agency,” in this case, Delta County.

“The whole area is made up of landslide material. These slides could easily be reinitiated,” said Noe. “The slope maps provided (by Gunnison Energy) should have triggered more study (requirements from the county).”

Gunnison Energy expert witness Mark Burgus, geophysicist and ground motion consultant, questioned Dr. Noe’s testimony saying that he believed Noe was referring to a “straw that broke the camel’s back scenario.” Burgus further testified that he had never experienced any problems during his long work history but would not say that problems could never occur.

Barrett Lavergne Gunnison Energy Geoscience Director testified that more than 2,000 man-hours had gone into fieldwork including extensive time spent surveying the sites for buildings, water wells, streams and other geological elements. He added that the detailed survey had taken place after the county’s approval and that he believed that the findings had later been added to the application record.

Where groundwater was concerned, Casselberry testified that the county’s health department had provided a comment letter citing “no issues found.” During questioning she said that that information, along with her own online research, led her to the conclusion that there was little danger of groundwater issues or contamination. That testimony was later countered when no such health department letter could be found in the record.

Casselberry’s testimony culminated with comments about how the county lacked certain performance standards in their specific development regulations. “If it does not apply to a performance standard, we do not regulate,” she said. While SB 181 requires the county to prioritize public safety, Casselberry maintained that geological hazards, for example, were not a performance standard under county regulations and therefore she didn’t need to consider that information in her review. Baier further argued that the county was only concerned with surface impacts and that the state regulates things below the surface like the shot-holes that are drilled for explosives used in the mapping process.

Commissioners have long complained about the county’s current specific development regulations. “I’ve said this many times in public meetings that our specific development code leaves much to be desired in this process,” said Commissioner Chair Don Suppes in a recent public meeting. The county plans to launch new, proposed land-use regulations at two community review meetings scheduled for Thursday, June 27 at Needle Rock Brewing in Delta and Monday, July 1, at Heritage Hall in Hotchkiss. Both meetings will begin at 5:30 p.m.

Senate Bill 181, signed into law this past April, has been referred to as “landmark legislation.” The law increases oil and gas regulation in Colorado, revamps the make-up of the Colorado Oil and Gas Conservation Commission (COGCC) and shifts the COGCC’s mission from “fostering” the growth of the oil and gas sector to “regulating it,” according to the National Law Review.

The hearing date for CHC’s primary lawsuit is yet to be determined but Judge Patrick gave participants a sense of urgency since Gunnison Energy plans to begin the projects later this month.