Flush the...
Colorado Springs again seeks an end to Fountain lawsuits
By ROBERT BOCZKIEWICZ
THE PUEBLO CHIEFTAIN
DENVER - Colorado Springs and the Sierra Club agree - for different reasons - that two Fountain Creek pollution lawsuits don't need a trial to be resolved.
They agree that U.S. District Judge Walker Miller should enter a judgment solely on the written arguments. They differ, of course, on what Miller's judgment should be.
In 40 pages of new court filings, Colorado Springs makes its argument and takes swipes against Pueblo County District Attorney Bill Thiebaut.
Last year's lawsuits by the Sierra Club and Thiebaut against Colorado Springs allege it has violated the federal Clean Water Act. The alleged violations are hundreds of spills of raw sewage, excessive chlorine and nonpotable water from the city into the creek since at least 1996.
Last month, the Sierra Club contended the fact that the spills have occurred is sufficient for the judge to enter a judgment of liability against the city.
The environmental group and the district attorney point out that the spills are not allowed by Colorado Springs' sewage system permit and are therefore a violation of the act.
Colorado Springs' new filings say all sewage systems sometimes have spills. It cites a Nov. 2 spill of almost a half-million gallons from Pueblo's sewage system into the Arkansas River.
Colorado Springs also cites, among other spills in recent years, millions of gallons of wastewater into Fountain Creek from the Air Force Academy and Fort Carson.
In the filings, Colorado Springs contends the Clean Water Act and legal doctrine bar the lawsuits.
In addition, the city contends the district attorney has no legal authority to bring his lawsuit.
For those reasons, Colorado Springs is arguing that Miller should enter a judgment in favor of the city.
The city made those arguments in earlier filings asking the judge to throw out the lawsuits, and added to its arguments in its new request for a summary judgment.
The Sierra Club sought a summary judgment in last month's filings.
The judge is expected to decide next year whether to enter a summary judgment (a decision without a trial) or to conduct a trial.
In its new filings, Colorado Springs said the lawsuits are "an effort to second-guess (the Colorado Department of Public Health and Environment, which) has taken substantial, intensive and ongoing regulatory enforcement action" on the spills.
Colorado Springs said the department's action is costing the city $400,000 in penalties and is requiring the city to spend "well in excess of $87 million in wastewater system improvements."
The city said the lawsuits are asking Miller "for new and different relief for the same alleged violations." The city contends the lawsuits are prohibited by a legal doctrine that bars consideration of lawsuits about disputes that already have been adjudicated. In this case, the department, the state agency with the primary responsibility to enforce the act, already has adjudicated the spills, the city said.
Colorado Springs also contends the lawsuits are barred by the act for two reasons. The city first argues that the act allows "citizen suits," such as Thiebaut's and the club's, only if the state agency has not begun an enforcement action.
The second reason is that the city contends the alleged violations are "wholly past," and the U.S. Supreme Court purportedly has ruled that citizen suits cannot be brought for wholly past violations.
Colorado Springs contends it is entitled to a summary judgment on Thiebaut's lawsuit for another reason, because Colorado district attorneys purportedly do not have legal authority or standing to bring this type of lawsuit.
Thiebaut and the Sierra Club in earlier filings have disputed the city's contentions.
The city's filings say Thiebaut, when questioned about his statutory authority to bring his lawsuit, "provided vague, non-responsive answers rather than respond with actual (legal) authority."
Colorado Springs says it searched diligently and has not found any Colorado law "that affirmatively authorizes a state district attorney to bring any action in the U.S. District Court."
It says that, in fact, a Colorado appeals court, in a similar issue in 1991, ruled that a district attorney did not have authority to enforce the state's hazardous waste act because legislators had given that authority solely to the Colorado Department of Health and Environment.
The city contends legislators made the department solely responsible for enforcing the Clean Water Act "to avoid the confusion of multiple state and/or local government officials taking inconsistent enforcement actions regarding the same events."
"Thiebaut simply disagrees with (the department's) actions, and seeks to set himself up as a separate (regulator) in competition with the state of Colorado," the Colorado Springs filings contend.
The filings assert that when city representatives questioned Thiebaut, he purportedly said he can bring any lawsuit to protect the community unless legislators have prohibited district attorneys from bringing a particular kind of lawsuit.
"In effect, Thiebaut asserts . . . he is empowered to act officially as a second attorney general on behalf of the entire state of Colorado in far-flung civil enforcement areas," according to Colorado Springs' filings. "This claim is absurd and without legal basis."
The city contends Thiebaut does not have the right to sue as an official because he has not asserted, as courts purportedly have required in similar situations, that he, personally, has been injured by the spills.
http://www.chieftain.com/metro/1165903200/6
By ROBERT BOCZKIEWICZ
THE PUEBLO CHIEFTAIN
DENVER - Colorado Springs and the Sierra Club agree - for different reasons - that two Fountain Creek pollution lawsuits don't need a trial to be resolved.
They agree that U.S. District Judge Walker Miller should enter a judgment solely on the written arguments. They differ, of course, on what Miller's judgment should be.
In 40 pages of new court filings, Colorado Springs makes its argument and takes swipes against Pueblo County District Attorney Bill Thiebaut.
Last year's lawsuits by the Sierra Club and Thiebaut against Colorado Springs allege it has violated the federal Clean Water Act. The alleged violations are hundreds of spills of raw sewage, excessive chlorine and nonpotable water from the city into the creek since at least 1996.
Last month, the Sierra Club contended the fact that the spills have occurred is sufficient for the judge to enter a judgment of liability against the city.
The environmental group and the district attorney point out that the spills are not allowed by Colorado Springs' sewage system permit and are therefore a violation of the act.
Colorado Springs' new filings say all sewage systems sometimes have spills. It cites a Nov. 2 spill of almost a half-million gallons from Pueblo's sewage system into the Arkansas River.
Colorado Springs also cites, among other spills in recent years, millions of gallons of wastewater into Fountain Creek from the Air Force Academy and Fort Carson.
In the filings, Colorado Springs contends the Clean Water Act and legal doctrine bar the lawsuits.
In addition, the city contends the district attorney has no legal authority to bring his lawsuit.
For those reasons, Colorado Springs is arguing that Miller should enter a judgment in favor of the city.
The city made those arguments in earlier filings asking the judge to throw out the lawsuits, and added to its arguments in its new request for a summary judgment.
The Sierra Club sought a summary judgment in last month's filings.
The judge is expected to decide next year whether to enter a summary judgment (a decision without a trial) or to conduct a trial.
In its new filings, Colorado Springs said the lawsuits are "an effort to second-guess (the Colorado Department of Public Health and Environment, which) has taken substantial, intensive and ongoing regulatory enforcement action" on the spills.
Colorado Springs said the department's action is costing the city $400,000 in penalties and is requiring the city to spend "well in excess of $87 million in wastewater system improvements."
The city said the lawsuits are asking Miller "for new and different relief for the same alleged violations." The city contends the lawsuits are prohibited by a legal doctrine that bars consideration of lawsuits about disputes that already have been adjudicated. In this case, the department, the state agency with the primary responsibility to enforce the act, already has adjudicated the spills, the city said.
Colorado Springs also contends the lawsuits are barred by the act for two reasons. The city first argues that the act allows "citizen suits," such as Thiebaut's and the club's, only if the state agency has not begun an enforcement action.
The second reason is that the city contends the alleged violations are "wholly past," and the U.S. Supreme Court purportedly has ruled that citizen suits cannot be brought for wholly past violations.
Colorado Springs contends it is entitled to a summary judgment on Thiebaut's lawsuit for another reason, because Colorado district attorneys purportedly do not have legal authority or standing to bring this type of lawsuit.
Thiebaut and the Sierra Club in earlier filings have disputed the city's contentions.
The city's filings say Thiebaut, when questioned about his statutory authority to bring his lawsuit, "provided vague, non-responsive answers rather than respond with actual (legal) authority."
Colorado Springs says it searched diligently and has not found any Colorado law "that affirmatively authorizes a state district attorney to bring any action in the U.S. District Court."
It says that, in fact, a Colorado appeals court, in a similar issue in 1991, ruled that a district attorney did not have authority to enforce the state's hazardous waste act because legislators had given that authority solely to the Colorado Department of Health and Environment.
The city contends legislators made the department solely responsible for enforcing the Clean Water Act "to avoid the confusion of multiple state and/or local government officials taking inconsistent enforcement actions regarding the same events."
"Thiebaut simply disagrees with (the department's) actions, and seeks to set himself up as a separate (regulator) in competition with the state of Colorado," the Colorado Springs filings contend.
The filings assert that when city representatives questioned Thiebaut, he purportedly said he can bring any lawsuit to protect the community unless legislators have prohibited district attorneys from bringing a particular kind of lawsuit.
"In effect, Thiebaut asserts . . . he is empowered to act officially as a second attorney general on behalf of the entire state of Colorado in far-flung civil enforcement areas," according to Colorado Springs' filings. "This claim is absurd and without legal basis."
The city contends Thiebaut does not have the right to sue as an official because he has not asserted, as courts purportedly have required in similar situations, that he, personally, has been injured by the spills.
http://www.chieftain.com/metro/1165903200/6
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