In December 2014, as snow clung to the San Luis Valley in southwestern Colorado, nurses in the community helped deliver four babies that tested positive for opiates, a drug that had been passed down to them, just as a baby might be born with her mother’s smile. The children, born with neonatal abstinence syndrome, which occurs when exposed to addictive opiate drugs while in their mother’s womb, went into withdrawal in their first days of life.

The newborns’ condition testified to the prevalence of the abuse of opioids — a class of drugs that includes synthetic painkillers like OxyContin and illegal street drugs likes heroin —that had been growing in the San Luis Valley, a rural agricultural region of approximately 46,000 people in southwestern Colorado. Over the past decade, drug-poisoning deaths from opioids had doubled in the area, rising from 20 in 2005 to more than 40 in 2013, according to the Colorado Health Institute. “For a tiny valley like us, that was incredible,” says Freddie Jacquez, director of the San Luis Valley Area Health Education Center (SLVAHEC), who is helping lead an effort to address the opioid crisis in the valley.

The San Luis Valley’s prescription painkiller problem has become all too familiar in the West; more than 200 counties in the region currently have the Centers for Disease Control and Prevention’s highest overdose death classification: 20 deaths or more per 100,000 people. Just 15 years ago, only one county did — Rio Arriba in New Mexico. Opioid overdoses, the main driver of total substance abuse deaths, according to the CDC, have quadrupled since 2000 nationwide.

Healthcare providers, families and drug users nationwide have grappled with the fallout from that rise. After so many babies were born addicted to opioids in such a short time span, the SLVAHEC and local leaders implemented an array of interventions aimed at reducing opioid abuse, including changing how pain pills are prescribed and how law enforcement addresses abuse. There’s some evidence that the community’s efforts could be taking hold, but their efforts may have unintentionally fed a rise in heroin use, to replace the need once filled by pain pills.

Beginning in April 2014, hospital managers and doctors working with the SLVAHEC, the San Luis Valley Behavioral Health Group and the Rocky Mountain Prevention Research Center, gathered for a series of meetings to figure out how to limit the supply of opioids. One step they agreed to was standardizing prescribing practices across the valley.

Physicians from the area’s six hospitals and numerous clinics began using a uniform patient-doctor form that required an agreement about how a patient would use prescription painkillers. The form highlighted abusive practices, like using more medicine than intended and sharing prescriptions with family members or friends, and required patients’ signatures.

Along with the agreement, healthcare providers also updated their prescription guidelines, changing long-term write-ups to a one-month painkiller supply. As a result, fewer prescription opioids were going into the community, says Joseph Valdez, an Alamosa pharmacist that was involved in developing the guidelines.  The agreements were widely accepted by physicians and their patients, but some providers argue that the new policies don’t address how to treat chronic pain patients who have developed a tolerance to such drugs.

Meanwhile, rehabilitation centers have added more programs for addicts and their families, says Kristina Daniel, chief operating officer for the San Luis Valley Behavioral Health Group. “The more people we see in our rehabilitation centers and in counseling programs means there are fewer in our community that are facing addiction without help,” she says. Law enforcement departments in Saguache, Alamosa, Rio Grande, Conejos and Costilla counties in the valley have also implemented a drug court that focuses on addiction treatment. Judges agreed that instead of convicting people of possession of narcotics, they would push them to get treatment. If addicts successfully completed a recovery program, they could avoid charges. If they lapsed, they could face charges for possession.

Still, it’s hard to know if these interventions are working. Statistics from the Prescription Drug Monitoring Program are not easily accessible, and when Jacquez tried to find out how many people in the San Luis Valley had died of drug poisoning, only one of the six counties —Alamosa—could provide that information. At best, the causes of death from prescription pills or heroin are recorded inconsistently across valley morgues, Jacquez says. What’s more, the latest data from the Centers for Disease Control and Prevention for both prescription pill and heroin deaths are current only through December 2015.

Yet anecdotal evidence suggests that the overhauls have had a positive effect. Pharmacists there say physicians write fewer pain pill prescriptions and more people are seeking treatment for addiction. (A Colorado Open Records Act request by High Country News filled shortly before publication also backs that up: In 2014, nearly 725,000 prescription opioids were filled, but in June this year, that number had dropped to fewer than 435,000 prescriptions, according to the state’s Prescription Drug Monitoring Program.) But even as the community has seen signs that pill abuse is declining, Jacquez and local leaders say heroin use is on the rise, potentially from pill users that have gone to the streets for their fixes — complicating the San Luis Valley healthcare community’s efforts to address the broader addiction crisis.

“After all that great work, the shift has gone to heroin; it’s on the rise dramatically,” Jacquez says. “It’s frustrating.”

He and others theorize that opioid addicts have moved to heroin as it became harder to find pills. Though it’s hard to prove that, there’s research that supports their suspicions. Ninety-four percent of people in treatment for opioid addiction say they chose to use heroin because prescription opioids were “far more expensive and harder to obtain,” according to a 2014 study funded by the Denver Health and Hospital Authority. “We wouldn’t have people turning to heroin if we hadn’t gotten them addicted to prescription opiates,” says Tim Condon, a research professor for the University of New Mexico Center on Alcoholism, Substance Abuse and Addiction.

For nearby Santa Fe, even a multi-pronged approach similar to the San Luis Valley’s hasn’t broken the cycle of addiction. Healthcare providers have also implemented patient-physician contracts, and strengthened prescription pill monitoring programs that help limit doctor shopping and inappropriate prescribing practices. Still, New Mexico’s overdose rate remains among the highest in the country, and 6 percent of high school students in Santa Fe reported they had used heroin in the previous month, according to a 2016 survey by the Santa Fe Prevention Alliance.

In the San Luis Valley, too, rehabilitation centers have had to pivot to deal with heroin addiction — and the need is growing. A methadone clinic, which opened at the end of last year in Alamosa, plans to increase its capacity to serve 50 recovering addicts per day, twenty more than it can currently treat. But local healthcare providers still worry that won’t be enough. Valdez says the focus will need to be on prevention, not just treatment. “My vision would be that all schools would have a mandatory substance abuse program,” he says.

The San Luis Valley’s growing heroin problem has made local leaders question whether they are getting at the core of solving the core issue: addiction. “We have all of these solutions, but we don’t know for sure whether or not they’re actually working,” Jacquez says.

So, what Jacquez and the rest of the San Luis Valley healthcare community are left with are stories like one from April of this year: An Alamosa woman overdosed and police officers used naloxone to revive her. She regained consciousness, and, after returning from the hospital, enrolled in a new treatment program at Crossroads Rehabilitation Center. Several of the steps that helped save her life were made possible by the new opioid program.

Even so, her fate is uncertain; opiate addicts are likely to relapse and she’ll need ongoing support. “We didn’t get into this (opiate addiction) problem overnight, and we’re certainly not going to get out of it overnight,” Daniel says. “But we need to have the services to catch people that are suffering from this crisis. We are getting better everyday at being there.”

This story originally appeared in High Country News. 

Photo credit: Wolfman – K, Creative Commons, Flickr

This year, for the first time ever, The Colorado Independent sent out a questionnaire to all the candidates running in Colorado’s House and Senate races.

The 17-question survey asks our incumbent and would-be lawmakers how they feel about gun rights, healthcare, school vouchers, and pay equity; where they stand on the hospital provider fee, personhood amendments, water conservation, campaign finance laws and a potential switch from caucuses to primaries. We asked each candidate who they support for president, and whether they’ll be actively campaigning on their candidate’s behalf.

We’ve heard from about one in four candidates so far, with a much higher response rate from Democrats and third-party candidates than from Republicans. Responses are coming in every day — here’s the response rate so far:

SENATE:
58 percent of Democratic candidates
13 percent of Republican candidates
50 percent of third-party candidates

HOUSE:
36 percent of Democratic candidates
9 percent of Republican candidates
47 percent of third-party candidates

Of Colorado’s 57 incumbents up for re-election this year, only seven (all Democrats) have responded so far.

Notable takeaways:

• Not all Republicans support Trump and not all Democrats support Clinton. We heard from candidates on both sides who are unhappy with their choices.
• Democrats and Libertarians support aid-in-dying measures, but we saw both Democrats and Republicans who are still either unsure or are willing to let voters decide. Republican Linda Garrisson, HD 41, considers it murder.
• Democrats tend to support mandatory water conservation measures and Republicans tend to oppose them, but there are candidates on both sides who are still unsure.
• Party lines are a pretty reliable indicator of feelings towards background checks and carrying concealed guns in schools — unless you’re Julia Endicott of HD 20, a rare Democrat who supports concealed-carry in schools.
• Personhood is unpopular across the board. Same for caucuses.
• Democrats favor public funding for IUDs (long-term birth control) for teens. Libertarians and Republicans, not so much.
• Also: Republican Al Jacobson from HD 32 found our questionnaire too long. Democrat T.J. Cole of SD 23 responded to the survey, but ignored the questions. Libertarian Roy Dakroub of HD 50 loves swearing.

This questionnaire is meant to increase transparency, accountability and communication between elected officials and their constituents. It’s very much a work in progress, and we’ll continue to update it as responses from more candidates come in.

Don’t see your candidate? Find your districts, look up who’s running for House and Senate there, and tell them you’d like to hear their views.

Candidates, send your responses to kelsey@coloradoindependent.com and we’ll put them on the site.

We’ve placed candidates’ responses on the maps below. The colored icons — blue for Democrat, red for Republican, black for third party — show candidates from whom we’ve received responses so far. Click “see answers” to read them in full.

Colorado Senate

Colorado Senate Inset

Colorado House of Representatives

Colorado House of Representatives Inset 1

Colorado House of Representatives Inset 2

Interactive maps made using ThingLink. Infographics made using Venngage. House and Senate district maps via Google maps. 

Photo credit: F Delventhal, Creative Commons, Flickr 

There was a stark difference between who Sheryl Randall was most of her life and who she had become when she tied a rope around her neck last year.

Randall, 67, was a financial planner in Evergreen. She liked to travel. She loved to hike. She had strong opinions, lots of friends and a big laugh you could hear no matter how far ahead or behind she was on the mountain.

Her laugh echoed, friends say.

“I can hear it in my head,” says Janet Williamson of Evergreen.

About five years ago, Randall started having trouble eating. She went from doctor to doctor in search of why she couldn’t keep food down. She started losing weight and energy until she stopped showing up for the hikes she used to take every Wednesday with friends. In time, she couldn’t hike – her greatest joy. Eventually, there were days when she couldn’t walk or get out of bed at all. Brushing her teeth or holding a book exhausted her.

Randall was first diagnosed with multiple sclerosis, but later doctors said she had a mitochondrial disease that was slowly attacking her organs. Food became difficult for her to swallow. She subsisted mainly on pear juice and brown rice, weighing every morsel she ate, trying to keep her weight up. But nothing worked. By winter 2015, she was down to about 80 pounds.

“She told me the last time I talked to her that she had about 40 minutes of energy a day,” says her friend, Joan Edmunds of Denver.

As Randall grew weaker, she became impatient with herself and friends, lashing out over things that in healthier days they’re sure wouldn’t have mattered to her. The most she could do was sit on her deck watching the seasons pass or lie in bed listening to recorded books about places she still hoped to travel.

“Her world was closing in on her,” says friend Janet Prehn of Arvada. “It was so sad to watch this awful progression as she just continually, continually, continually, continually went downhill.”

Randall arranged for hospice workers to help as her body broke down. She refused care from friends.

In the winter of 2015, she phoned Williamson, who has stage 4 breast cancer, to ask if she ever thought about suicide.

“I said I did,” Williamson says.

Williamson asked Randall what quality of life she had.

“She said ‘None. I don’t want to live this way.’”

Williamson urged her friend to move to Oregon or Washington, where aid in dying is legal.

“She said ‘I can’t get there, I can’t move that much.’”

Williamson offered to drive her.

“She said, ‘I can’t drive in a car that long.’ She had waited too long in hopes that she would get better.”

About a month later, in March 2015, Randall wrote letters to a few friends saying she had suffered too long and had enough. She notified Jefferson County Sheriff’s office, calling or writing – her friends aren’t sure and the department isn’t saying – to tell them where she lived, how to get into her house and what she was about to do. Then she hanged herself.

As methodical and thorough as Randall was in every other aspect of her life, her friends have no doubt that she researched her options. They cringe to think of her combing the web for the surest way to die. The thought of her threading a rope around her neck haunts them. And they kick themselves as the would-haves and should-haves play in their minds.

Given Randall’s fierce sense of friendship, they’re sure that she didn’t want them taking the legal risk of helping her die. They’re also sure, given her independence, that she didn’t want them trying to talk her out of it.

“But I wouldn’t have,” says friend Nancy Kranzow of Denver. “I understood why she did it. Her life wasn’t her own any more.”

“She was obviously amazingly desperate to do it the way she did,” adds Edmunds. “She was very, very ready to go.”

The Jefferson County Sheriff’s Department wouldn’t release its report on her suicide, citing privacy reasons.

Randall’s sister, who lives out of state, asked The Independent not to reveal Randall’s identity in this story. “She was a very private person,” she said.

But Randall’s friends – seven of whom agreed to be interviewed – say she would have wanted her story told if it could help spare others. Now that voters will have a chance to decide whether to legalize medical aid-in-dying in Colorado, one friend after the next said her story needs to be heard.

“It would have been so much easier to know she could just take something and it would have been over,” Prehn says.

Five states – representing 16% of the U.S. population – currently allow medical aid in dying. They are Oregon, Washington, Vermont, Montana and California. Colorado is the only state slated to consider a ballot initiative this November.

The proposed End-of-Life Options Act is modeled after Oregon’s, which was the first state to pass a medical aid-in-dying law in 1997. Since then, 1,545 Oregonians have had prescriptions written under the law and 991 have died from ingesting the medications. Last year in Oregon, there were 218 prescriptions filled and 132 used.

Colorado’s proposal, like Oregon’s law, would require patients to be 18 or older, mentally capable, residents of Colorado, confirmed by two doctors to be terminally ill (with six months or less to live), and able to administer the medication themselves. Most commonly, doctors prescribe a barbiturate or a mix of drugs, including a sedative. The aim: a death more peaceful than Randall’s.

“The violence of what Sheryl did, it was awful,” Kranzow says.

“We were all shocked. Hanging herself. I can’t fathom going through something like that,” adds Prehn.

It’s hard to know how many cases like Randall’s there are in Colorado because the state health health department doesn’t keep statistics on how many terminally ill take their own lives,

Compassion & Choices, the national group behind the aid-in-dying movement, coalesced at the height of the AIDS epidemic when terminally ill patients were committing suicide by jumping off balconies, kneeling in front of trains and other violent means. They committed to working to ensure more peaceful deaths. As president Barbara Coombs Lee tells it, the ability to die peacefully “is a core value of a life well lived.”

“People take actions that are desperate when they’re powerless in the face of an approaching, certain, horrific death,” she says. “We know this tragedy of violence among the terminally is totally preventable.”

Advocates say aid-in-dying not only assures peace of mind for patients, but also for their family and friends. Suicides like Randall’s, Coombs Lee says, leave survivors “with a lot of difficult images, second guessing and guilt wondering how could they have prevented it, how could they have relieved the desperation.”

The Archdiocese of Denver opposes the measure on grounds that human life is sacred at every stage. Its spokesperson did not return phone calls seeking further comment.

Some disability activists also oppose the ballot initiative, fearing that, in the face of lifelong care and medical expenses, the law could be misused to euthanize people with disabilities.

Like Randall, Carrie Ann Lucas, a disability lawyer helping lead the opposition against the ballot measure, also has a mitochondrial disease. Although she realizes such conditions “can manifest in a million different ways,” she wonders if psychiatric care could have prolonged Randall’s will to live. In any case, Lucas says doctors are terrible at evaluating quality of life issues and fears that – either because of pressures from depressed patients or insurance companies’ cost concerns – physicians may prescribe lethal drugs rather than mental health treatment. She also notes that aid-in-dying prescriptions are similar to lethal injections used in prisons to carry out the death penalty.

“As we know from several botched executions in Oklahoma, that’s not necessarily a non-violent death, either,” she says.

Randall had left specific wishes that there be no service after her death. So, instead, her friends gathered one morning in June for a hike in her memory.

The air was crisp and the sun bright as they trekked along Mount Falcon. They tried to remember how much fun Randall was and how much life she had. They missed the echo of her laughter on the mountain.

But nobody on that trail that morning could forget what they all imagined about Randall’s last minutes. Nobody could accept that their friend, in her death, felt relegated to the underground.

“Maybe I’m projecting my own feelings on Sheryl,” Prehn says. “But, then, I knew her quite well. I feel like she wouldn’t want anybody else to go through what she went through if there was a better way to do it.”

Photo courtesy of Nancy Kranzow

Just after sunset in the tiny town of Westcliffe, 147 miles south and west of Denver, two dozen people begin gathering in the Bluff, a park on the edge of town.

The hilly Bluff overlooks the Wet Mountain Valley, and just a bit farther, the Sangre de Cristo mountains. The park hosts all manner of activities, including a large bluegrass festival every year. But on this night, its benches, set into the park’s natural hillside, are a perfect place to look out over the valley and into the night sky. The view is breathtaking. You can see ranches and grazing land dotting the valley floor miles away.

Most of those gathering are older and retired, but there are a few kids, too. At least a half dozen people are holding telescopes – the kinds that cost hundreds or even thousands of dollars and take a fair amount of muscle to carry or must be rolled on carts to haul them to just the right spot.

Waiting for the clouds to lift at the Jack Observatory, Bluff Park, Westcliffe

That spot is a shed – one with wood siding that isn’t much bigger than one you might have in your back yard. But, soon, the unremarkable structure reveals itself to be tricked out far beyond expectation. When amateur astronomer Jim Bradburn flips a switch, the shed’s roof slides forward, revealing a massive telescope, complete with a large-screen TV and a computer that directs the telescope to search the sky.

Bradburn is no Johnny-come-lately night sky viewer. He’s among a growing group of locals who are serious about the stars.

On this particular night, at least at first, the sky doesn’t cooperate. It’s overcast, and clouds shroud the valley.

Bradburn and others fiddle with the observatory telescope and the computer to find an unobstructed view. Two hours in, the clouds are still veiling the stars.

Wait until about 9 or 10 p.m, someone says.

By then, chimes in another, we’ll see the stars as they were meant to be seen.

Finally, at 9:30p.m., it happens. The clouds begin to clear and the stars come out to play. The group aims their telescopes toward the heavens, capturing views of stars with names like M11 and M13, and the Great Hercules Cluster. Cassiopeia, a gleaming W in the night sky, is brilliant, even to the naked eye.

And there, behind the wisps of remaining clouds, spawls the Milky Way – a mass of stars so thick that the galaxy sometimes resembles clouds itself.

On one hand, Bradburn says, when you look into a clear night sky, you feel very small beneath so many stars. On the other, he says, it feels like you can reach up and touch the entire universe.

****

It’s about the altitude, and the attitude.

Westcliffe and adjoining town Silver Cliff are the crown jewels in the United States of a movement called Dark Sky. The international crusade seeks to make sure that future generations can see the Milky Way the way our ancestors did, before the advent of the light bulb. The valley west of Westcliffe/Silver Cliff is the best place to see stars for two reasons – the altitude, which at 8,000 feet, puts you closer to the stars than any other Dark Sky community in North America, and the attitude of the people on the Bluff, beholding the view.

There are 14 Dark Sky communities in the world. Westcliffe/Silver Cliff is Colorado’s only certified Dark Sky community, although the state has two Dark Sky-certified parks: Hovenweep, on the Colorado/Utah border west of Durango, and the Black Canyon of the Gunnison.

National media have picked up on Westcliffe/Silver Cliff stargazing scene. In the past month, locals point out, crews from the New York Times, CNN, Today Show and NBC Nightly News have trekked down to the towns (total population, just over 1,100) snuggled between the Sangre de Cristo and Wet Mountain ranges in south central Colorado.

The valley just west of the two towns has something unlike most other communities in the continental United States or Canada: a clear night view of the Milky Way and billions of other stars.

Amy Moulton, who works in the local library, says it would be odd in these parts not to notice the stars at night. Fellow librarians Cathy McCarthy and Ted Ballard say they’ve never seen meteor showers such as those they see here – sometimes as many as 20 or 30 meteors in the span of just a few minutes.

“It’s a gift,” McCarthy says.

That gift didn’t come on its own. The community has taken both legal and financial steps to keep its night sky dark.

The movement in Westcliffe/Silver Cliff started about 15 years ago when a local rancher, Susan “Smokey” Jack, began to notice the night sky was changing, with more light pollution bleeding from the towns as well as from Pueblo and Colorado Springs, about 50 miles west. According to her friends in the local Dark Sky organization, she was the first to push for night-friendly lighting in the community to preserve the special view of the sky over the valley. Jack died in 2004, and the Bluff observatory is named after her.

Nowadays, a dozen years after her  death, it’s increasingly difficult to see the Milky Way near any metro area. Steve Linderer, past president of the two-dozen-member local Dark Sky group, points to studies that estimate 80 percent of the population in the United States and Canada live in areas with light pollution that blocks the view of stars. A lot of kids will never see the Milky Way, Linderer laments.

“We’ve been working for 15 years to make sure [light pollution] doesn’t happen here.”

****

Dark Sky isn’t just another quirky Colorado phenom.

The International Dark-Sky Association – which works with lighting manufacturers, parks, city planners, lawmakers and others to implement “smart lighting choices” – was formed in 1988. According to its website, the group, based in Tucson, is the leading authority in identifying and publicizing the effects of artificial light at night on human health, wildlife and climate change. 

“We’re suppose to have night,” Linderer says, citing a recent report by the American Medical Association. He notes that too much light in the nighttime interferes with the body’s production of melatonin. Sea turtles have changed their migration behavior because they head to coastal lights instead of using the shimmering seas to navigate to their traditional nesting sites. Night light has affected bird migrations, too.

As Linderer likes to put it, life evolved on Earth 3.5 to 4 billion years ago, but only since Thomas Edison came up with the incandescent light bulb has it been okay to “take away the night.” The folks in the Westcliffe/Silver Cliff Dark Sky group are striving to grab it back.

That effort has translated into “smart lighting” ordinances requiring developers to use Dark Sky-compliant lighting when they build new homes or developments in the area. It also has meant making sure outdoor lights, such as streetlamps, use more energy-efficient lighting with relatively low-wattage and low-heat bulbs. The communities make sure street lamps have covers so their light reflects toward the ground rather than in all directions. In March 2015, the town’s efforts won it Dark-Sky certification from the international association.

Custer County Courthouse, Westcliffe, after Dark Sky-friendly lighting installed

Custer County Courthouse, Westcliffe, before Dark Sky-friendly lighting was installed.

It hasn’t always been easy to persuade locals to get on board. At first, Bradburn says, the Dark Sky members got a little over-enthusiastic about telling people they had to change their lights to preserve the night sky. Their “light police” attitude didn’t sit well among everyone in the community, which has been the home of family ranches going back 150 years. More recently, the valley and surrounding mountains have become homes to empty-nesters and retirees from big cities, as well as both an Amish population and members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, a splinter Mormon sect.

It was Jack’s idea to start raising money to change out the streetlights, and that has made all the difference. For those who haven’t been able to afford it, the homegrown group of stargazers raises money to pay for the lights and other Dark Sky-compliant fixtures.

“We need to be advocates and educators to maintain our Dark Sky heritage,” Bradburn says. “We don’t tell the neighbors to cover their lights,” but if they’re willing to change, the stargazers will make it happen. It cost the group about $10,000 to convert all the streetlights in Silver Cliff.

Bradburn notes that if you go above town, such as up to the national forest campground that’s to the west in the Sangre de Cristo mountains, you can’t see the town lights at night, but when you drive down Main Street, it’s as brightly lit as any other place.

The effort has spread outside of Westcliffe/Silver Cliff. The nearby town of Florence houses three federal prisons, whose ultra-bright perimeter lights bleaches the darkness with noxious florescence. Tom Chapman, a spokesman for the Florence prisons, says the facilities are in the process converting standard lights to LED lights that are Dark Sky-friendly, in part because those non-light polluting structures will provide better security and are more energy-efficient.

The area’s Dark Sky designation isn’t just about aesthetics. There’s an economic advantage, too.

Because of the harsh winter weather (think 24 below zero), the two towns will never be a year-round destination for astronomy lovers, but expanding the summer tourist season into the fall or late spring is definitely possible, according to folks involved with economic development in the area. Given the newness of the IDA certification, and the area’s lack of broadband capability, efforts to market the wonder of the Westcliffe/Silver Cliff night skies haven’t yet taken off.

Still, Westcliffe has grown 20 percent in the last 15 years, and many of the regulars at the Bluff are part of that recent migration.

Among the stargazers are Ed and Jacquie Stewart, who moved to the area from Austin, Texas, about 16 years ago. Ed says he has been a stargazer for 50 years, and that they were drawn to Westcliffe by the mountains and the night sky. Linderer, who retired from the National Park Service, has lived in the area for 10 years. Bradburn was an architect in Denver for about 25 years, but has lived just outside of Westcliffe for 15 years.

Charles Bogle, who heads up the Custer County Economic Development Corporation, told The Colorado Independent that city leaders anticipate people coming to see the stars in Westcliffe/Silver Cliff from all over, and hope the Dark Sky designation put the surprisingly lightly-tread Central Colorado area on the map for the more urban folks of our state. It isn’t just the skies, he says. The quality of life in the valley is also alluring.

“We figure by 2040, people won’t want to live along the I-25 corridor,” and that Westcliffe/Silver Cliff will be among the places people choose to live, he says.

There are still some skeptics about growth in Westcliffe/Silver Cliff, Bogle adds. “We still need to win over some elements of the community who are opposed to change.” The county intends to be careful about future economic development planning. Says Bogle: “We don’t want to mess it up.”

As the night grows later and the skies clearer, some on the Bluff muse about our relationship to the stars.

Susan “Sam” Frostman says seeing millions of stars makes her feel small. “But it’s like being in another world. Everywhere else, you see one star here or there.”

Linderer, who says he has been entranced by the stars since he was a boy, gazed up at the heavens. “Since the first human, we’ve been fascinated by the night sky and the Milky Way. I can’t help but think how many humans before me have looked at this.”

Photos by Allen Tian, The Colorado Independent, and courtesy of Dark Skies Inc of the Wet Mountain Valley

This past spring, I received a marketing postcard from my former real estate agent in Denver. The card was one of those oversized, glossy types advertising a listing for a Northside brick bungalow. My family and I were still living in Richmond, Virginia, barreling down on our fourth year in that beautiful, old, complicated, aspiring city. But we were preparing to move back to Colorado and trying to figure out where we were going to live.

Richmond has one-third of Denver’s population and a little less than half its land mass. It’s less wealthy as a city and is saddled with old infrastructure, narrow streets, not enough lighting, and lackluster public transportation. It is segregated in the way of all old cities because lines drawn decades ago to separate black and brown from white have hardened into walls. And walls don’t come down easy. In that, Richmond is no different from Denver.

By the time I moved there in late 2012, Richmond had begun an upswing, a beneficiary of The Resurgence of the City. All the young people with their disposable incomes and foodie inclinations and disdain for the automobile. All the empty nesters freed from suddenly too-big houses, ready to leave behind the neighborhoods where the car is still king. In that reclamation, too, of once-sagging downtowns and their satellite neighborhoods, the difference between the two state capitals is one largely of timing and scale: the Western city offers its Eastern kin a glimpse of a future in which opportunity beckons. But not for all. And always at a price.

Nine hundred thousand dollars, in this case.

That’s what the postcard says – $900,000 for the 2,000-sq. ft. brick bungalow on a corner lot on Newton Street around 37th Avenue. It is a price that is at once unbelievable and plausible because every once in a while after we moved, I would go online to check the estimated value of our old house in the same Northside neighborhood. We lived in a 1920s, two-bedroom, one-bath, galley-kitchen red brick bungalow with a little more than 900 sq. ft. upstairs and a smaller basement that was inhabitable if you weren’t picky. When the estimated market value surpassed $440,000 — $440,000! –– almost 40 percent more than our sales price, I stopped looking because my masochism has its limits.

I consider myself part of the middle-class, shrinking as it may be, and it’s a jolt to realize that I can no longer afford the neighborhood I left only a few years earlier.

I study the postcard in my kitchen in Richmond and decide to give my former Realtor some grief.

“Doug,” I say – his name is Doug Day — when his voicemail picks up. “I got your postcard on the Newton house in the mail, and I just wanted to let you know it has a typo.”

He calls back immediately. “Oh, no,” he says. “A typo. Of course, you would find a typo. What is it?”

“It says this house is $900,000,” I say.

“Oh,” he says, relief in his voice. “That’s not a typo.”

And he tells me the house is on a corner and is four times the size of a typical lot in the neighborhood. He says that’s the market in the neighborhood these days – mind-boggling. And we laugh, ha, ha, isn’t that funny/not funny.

***

Not long after that postcard made its way to Richmond, Denver officials released a report on gentrification in the city. It quantifies what your eyes tell you every time you drive through LoHi or RiNo or Five Points or Jefferson Park. Every time you see gleaming new apartment buildings towering over tidy bungalows, and block after block punctuated by the sheetrock-, glass- and metal-clad bones of Tyvek-wrapped buildings preparing to welcome the 1,000 new households moving to Denver every month.

The study, by the Office of Economic Development, focuses on “involuntary displacement,” which, depending upon how you look at it, is either gentrification by another name, or is one of its byproducts – something like revitalization run amok.  Involuntary displacement most commonly refers to a working-class or lower-income neighborhood that is remade in the shape of its incoming younger, wealthier (and, typically, whiter) residents. In this remaking, longtime lower-income residents are pushed out by rising rents or property taxes.

“Involuntary” is the key word here. It separates those pushed out from those who see a once-in-a-lifetime opportunity for a financial windfall and cash out. The latter choose to sell their homes, and who can begrudge them? Wish them well. Pray they find a home they can afford elsewhere in a neighborhood they like. The result is the same: voluntary or involuntary, a once-neglected neighborhood takes on new life. Insiders risk becoming outsiders, shut off from the new pipeline of opportunity.

This is one of the ironies of gentrification: the neighborhoods most vulnerable to it tend to be the very same ones once hamstrung by the lack of public and private investment, by struggling schools and too few job opportunities. They are the neighborhoods with a higher than average number of renters and with lower-than-average property values, educational attainment and household incomes. The neighborhoods of the black and the brown and the working-class whites.

In the Resurgence of the City, real estate speculators saw, just as city leaders did, what was coming to these neighborhoods so conveniently close to downtown. But where the public sector plods, the private sprints. Developers, bankers, investors vault the very same walls that they once helped create. And Denver, the study points out, now ranks seventh of the 50 largest U.S. cities in terms of the extent of gentrification.

This city is now operating by an equation with three variables: housing prices, wages, and federal investment in housing. The first is rising. The second is also rising, but not nearly as quickly as the first. The third is falling. Think:  a/b – c = affordable housing crisis. In this market where demand outstrips supply, a “perfect storm” has been created, the study says, which “will make it increasingly difficult for Denver’s low-and middle-class residents to stay in the city.”

Take a look at rents, as the city’s analysis does. By the end of 2014, those individuals earning the area median income of $53,700 could not afford the median rent of $1,539 for a two-bedroom, two-bath apartment. (Housing is considered affordable when it takes up no more than one-third of one’s monthly salary.) Those who earned 60 percent of the area median income –  $32,220 – could not afford a median-priced one bedroom on their own – and they hadn’t been able to since 2008. And “most individuals in low-skilled occupations requiring just a high school diploma or no high school diploma could not afford to live in Denver at all,” the report says.

In this report, the city sought to identify the neighborhoods for which it is not too late to attempt a channeling of what most would agree is long-overdue investment. Call it a placing of the municipal thumb on the scale that would balance revitalization with gentrification. In these communities, the city wants to create that elusive urban ideal: the mixed-income neighborhood. It wants to extend job opportunities to those who live in neighborhoods at risk of gentrification so that wages begin to catch up with housing prices. It wants to invest in the existing small businesses. It wants to preserve and create affordable housing so that all benefit from the new shops and restaurants and services. It wants to bank land.

Westwood is one of the  “vulnerable” neighborhoods. Westwood, the Westside landing pad of many of Spanish-speaking immigrants, the longtime home of working-class whites, the last neighborhood to be annexed by the city and the community that bore the brunt of the foreclosure crisis. Westwood, bisected by Morrison Road, between Federal and Sheridan boulevards, has a special place in my heart. But it has long been isolated from the rest of Denver and its housing stock is generally lousy. That it’s on the list surprises me, though it meets all the criteria: more renters, lower median household income, less educational attainment than the rest of the city. About 80 percent of its residents are Latino. It’s still possible to buy a house in the high-$100K to mid-200K range.

“It’s still an affordable neighborhood, and that’s exactly what puts it at risk,” says the area’s City Council member Paul Lopez.

Also identified as vulnerable, based upon 2013 census data: Valverde, Barnum, Athmar Park, basically all parts of the Hispanic Westside, plus the far southwestern neighborhoods home to many in Denver’s American Indian community. Globeville and Elyria-Swansea make the list, but with the move to lower the raised section of Interstate 70, that was easy to see coming. The freeway as a barrier works both ways.

“Westwood, Globeville and Elyria-Swansea, three of the poorest neighborhoods in the city are experiencing gentrification,” says Michael Miera, a community development representative with the Office of Economic Development.

Miera speaks to me not as a representative of the city, but as a Denverite, born and raised and now 63 years old. I want to know how he’s reacting to the changes he’s seeing. I hear from him the same conflict expressed by other long-timers.

“If I look at it from the perspective of just a lifelong Denver resident, I think, ‘Wow, look at my city! Look at what it’s become.’ And what it’s become, that’s a good thing,” Miera says. “Denver is one of the best cities in the country, really. I like that I can go to the Denver Center for Performing Arts. I like the sports and culture and music, the restaurants. That’s all good.

“But if I look at it from the perspective of one who cares about social justice and cares about inequities of society, then it’s sad, you know, to think that people of color, Chicanos, and Mexicanos are being driven out of the city because of this process. And that’s the big issue.

“How do the powerbrokers in the city deal with that? Do we want to be San Francisco? Do we want to be a city where no one can live unless you have a lot of money? A city that drives away business, that stops people from coming because their employees can’t live here?”

The question is not a simple matter of whether what is happening now in Denver is good or bad. It is both. The question is who defines what a city becomes. And the challenge is to find the sweet spot where public investment meets private, where government policy and market imperatives intersect and amplify opportunity in all neighborhoods, among all communities.

“That’s why we have to do what we can to achieve affordable housing in the city,” Miera says. “That’s the number one goal. Can we keep ahead of the market? I don’t know.”

****

I make another call to get a better understanding of the changes that have taken place since I left in August of 2012. This one is to Brian Eschbacher, the director of planning and enrollment services for Denver Public Schools. The public schools always have been the canary in the coal mine. I want to know what he’s been seeing.

He starts with the number of homeless students. According to district data, DPS counted 2,519 homeless students last school year – up every year since 2010 when 1,515 homeless students were counted. Most of them are not in-the-streets homeless. A higher percentage than ever, 58 percent, are doubling up, living with other families, a phenomenon the district ties directly to the lack of affordable housing, including long waits for subsidized housing, in the city.

“If your landlord sells your place and you used to rent for $600 a month and now you can’t find anything, you are forced to find a place to live with someone else,” Eschbacher says.

The changes impact both students – those forced to move and the friends they leave behind – and the school system, which is seeing a drop in the number of its lower-income students. For every percentage point drop in the number of students eligible for free-or reduced-price lunch, Eschbacher says, the district loses $1 million to $1.5 million in federal funding. The number of such students has dropped four percentage points in the last two years and is projected to decrease another 8 to 10 percent in the next four years, through 2020, he says.

This is coming on top of a projected decline in general enrollment simply because as housing prices increase, the number of families with public-school age children falls. “If you take a $100,000 home and scrape it to build $400,000 condos, it’s less likely that we will get students,” Eschbacher says. “Our student population grew so, so fast and now we have dramatically slowed our growth. It’s shocking to have it happen so quick.”

I ask him where the families are going. The first moves seem to be within Denver, he says, from northwest Denver to southwest Denver, from North Park Hill to Montbello. Student transcripts tell the district that much. But after that, he said, it appears as though families are moving north to Adams County, to Commerce City.

“You have a metro area shifting,” he says, “and it’s really out of the city.”

***

Which is where we end up. My family and I return to Colorado at the end of July. The changes in Denver in such a short time astonish me. The freeways are laden with the kind of traffic that reminds me of my years in Southern California.  The beloved neighborhood bowling alley where we took our kids on Sundays has become a Natural Grocers. A friend tells me the longtime manager, a native Westsider who knew everyone, is now working at Target. Chuck’s Barbershop is still there, but Chuck Floyd, who bought the place in 1953, just sold it to another barber. A pawn shop at the mouth of tiny Edgewater, which somehow always felt to me like an untamed outpost in the middle of a metropolis, has been replaced by a brewery. A lease on a 534-square foot, one-bath studio at the new luxury Alexan Sloan’s Lake apartments starts at $1,390.

My sister, who lives in Centennial, drives me to Denver’s RiNo for dinner. We pass through the fast-growing canyons of brick and glass into the warehouse district that is a warehouse district no longer but a hip urban-artisan village-in-the-making. She takes me to a 19th-Century brick foundry turned supercool mercado, with food and drink and charming little markets that sell flowers and wine and bread and beer and cheese. Online it is described as a “one-stop shopping experience for the food-obsessed.” The place is fantastic. The change astounding.

We have decided to live in Fort Collins. It wasn’t much of decision, actually. Denver is too expensive and my husband is joining the faculty at CSU. Someone tells him that if everyone in the country wants to live in Denver, then everyone in Denver wants to live in Fort Collins. Perhaps that it is true because the house hunt is brutal. As in Denver, homes for sale are getting multiple bids. Multiple not as in three. Multiple as in 8, 9, 10. Would-be buyers are waiving inspections and appraisals. They are paying cash.

I joke that I am moving through the stages of house-hunting grief: Disbelief, disappointment, anger, resentment. Full of indignation, we say screw it, and decide to wait for the cooler seasonal markets of late summer and fall. We manage to find an overpriced three-bedroom apartment a mile from the kids’ school.

Everyone wants to talk about how much has changed here since we left. The rising home values are good news for my friends, many of whom, like us, could be said to have been among an early wave of gentrifiers. Their homes have skyrocketed in value. But the changes are also a source of sorrow for the long-timers who see in the scrape-offs disrespect for the history of a place, for the communities that sheltered the Italian, Mexican, black and white families and the workers who helped build this city.

Perhaps this is the predictable lament of one generation watching the reshaping of its legacy by another. Perhaps Denver is being remade in some way that fundamentally alters its identity.

The summer housing market cools from a boil to a simmer and we resume our search, finally finding a patio home at a price we can afford. It’s smaller than our home in Richmond with an unfinished basement. But it is lovely, and in the same school zone as our apartment. The mortgage is $500 less a month that what we are paying in rent.

We await the bank’s appraisal and count ourselves lucky.

Photos by Allen Tian, The Colorado Independent

Amendment 71, or “Raise the Bar,” is a rare beast— a ballot initiative about ballot initiatives. The measure, which seeks to make it harder to change Colorado’s Constitution, has fervent support and equally fervent opposition, but the lines don’t always fall where you might expect.

Every living Colorado governor, Democrat and Republican, supports the effort. A wide and varied swath of industry groups say we need the measure to protect the state’s constitution from being easily amended. But a diverse collection of grassroots organizers, libertarian think tanks, and progressive good-government watchdogs say doing so would strip their members — and voters — of their power. Environmental groups oppose it. The oil and gas industry has ponied up big money to help it win.

With the Nov. 8 vote on Amendment 71 approaching, here’s what you need to know.

What would Amendment 71 do?

Under current law to qualify an amendment for the ballot, supporters must collect petition signatures totaling 5 percent of the votes cast during the last election for Secretary of State— right now that’s 98,492 signatures. You can gather the signatures anywhere, from a Walmart parking lot in Colorado Springs to the 16th Street Mall in Denver to the Pearl Street Mall in Boulder.

Amendment 71 would require petition gatherers to collect valid signatures from 2 percent of registered voters in each of Colorado’s 35 state Senate districts. That means one contrarian district could, in theory, keep an amendment initiative off the ballot if voters there refused to sign petitions.

Raise the Bar would also require constitutional measures to garner a supermajority of 55 percent of voter approval to pass rather than the simple majority currently required. Thus the name, Raise the Bar. That supermajority would also apply to constitutional amendments referred by lawmakers. Such legislative amendments to the constitution, which are usually crafted to solve urgent problems, already must go through a legislative hearing process, analysis by both legislative staff and voters, and require a two-thirds majority in both chambers to make the ballot.

Supporters say the higher bar would ensure that all Coloradans have a say in what makes the ballot, including those in rural areas, rather than just voters in urban centers or along the Front Range.

Critics say gathering enough signatures from all 35 state Senate districts would be prohibitively difficult, requiring dozens of different ground operations and multiple campaign teams. Campaigns would have to hire more professional signature gatherers — or train more volunteers — to circulate petitions statewide.

Tricia Olson, an organizer for the Yes for Health and Safety over Fracking campaign, says Raise the Bar would do nothing less than “eliminate or destroy the initiative process.”

Why does that matter in Colorado?

Colorado is one of a minority of states that gives voters the power to change their state’s constitution. State laws, which have the same signature requirements and thresholds that constitutional amendments do, can be changed or repealed by the legislature with a simple majority. But changes to constitutional amendments require lawmakers to write additional amendments, pass them with a two-thirds majority in each chamber, and then submit them to voter approval on the ballot. Citizens, too, can initiate changes to constitutional amendments.

Roughly half the states in the nation have a referendum or initiative process, but Colorado’s signature and pass thresholds are relatively lower than the others. The time allotted for gathering signatures here, which is set by statute at six months, is, however, among the nation’s shortest. The Raise the Bar campaign argues that Colorado’s Constitution is “the easiest” in the country to change. That’s debatable, but, suffice it to say, it is easier here to pass an amendment than in many other states. Whether that’s desirable depends upon whom you ask.

Coloradans who like our ballot initiative process champion it as an opportunity for direct democracy. Since it was added to the constitution in 1910, the process has given citizens here the power to enact change without relying on the governor or the legislature. Direct democracy allows voters to address controversial issues bureaucrats and politicians may not be willing to touch.

The reason people run measures to change the constitution in Colorado in the first place is because the legislature will not act, said Elena Nuñez, who is fighting the measure on behalf of Colorado Common Cause.

Need some examples? Think legalized marijuana in 2013. Would lawmakers have allowed that? Probably not. Or, more recently, consider the measure on our ballot this year that asks voters whether we want to allow terminally ill patients to obtain a prescription for drugs that would allow them to end their lives. Groups had to take that to the ballot because they couldn’t get such a law passed at the Capitol, where several lawmakers said they privately supported the idea, but didn’t want to buck the Catholic Church and other Christians who oppose it.

Those who oppose the ease with which citizens can alter Colorado’s Constitution say it has made the state’s governing document a free-for-all, a dumping ground for the latest “it” policy. One could argue that this is why Colorado was the first state to legalize marijuana for recreational use: In 2013, all it took to amend our constitution was a simple majority and signatures gathered in the state’s concentrated urban areas.

“We think our Constitution is our founding governing document,” says Joe Megyesy, who helped lead the effort to get Amendment 71 on the ballot and also did conservative outreach for the 2012 marijuana initiative. “It should serve as being the playbook to governing, and not the place for special interests to run policy experiments.”

Colorado’s relatively easy ballot initiative process has also made the state prone to repeated, arcane budget battles. Thanks to a voter-initiated constitutional amendment in 1992 called the Taxpayer Bill of Rights – or TABOR – lawmakers must now ask voters, through ballot measures, to approve all new tax increases. TABOR limits Colorado’s tax revenues at all levels of government, tying the state’s hands when it comes to generating new revenue.

Another infamous initiative came in the early 1990s when Colorado voters approved a ballot measure called Amendment 2. That amendment denied state and municipal governments the right to ban discrimination on the basis of someone’s sexual orientation. The vote sparked a culture war here that drew national headlines and a reputation that Colorado was a bastion of homophobia. A year later, the U.S. Supreme Court struck down that measure, ruling it was a violation of the U.S. Constitution.

Recreational cannabis, TABOR and the now-repealed Amendment 2 are perhaps the best known of the many amendments Colorado voters have written into the state’s constitution, and the three illustrate the unpredictable nature of ballot initiatives: They sometimes get slapped down by federal courts or result in unintended consequences that the legislature later must try to fix.

Is it really that easy – now – to get an amendment on the ballot here?

“Easy” is a relative term.

Most initiative efforts in Colorado actually fail to garner enough valid signatures to make the ballot, and the ones that do generally have a lot of money and resources to make it happen. Voters failed to approve any ballot measures amending the constitution in 2014. Fewer than one-third of the proposed amendments that actually made Colorado’s ballot have been passed by voters in the last 30 years. The Colorado Constitution has been amended by citizen-initiated ballot measures 48 times since the initiative process was approved in 1910.

The Colorado Independent recently looked into how two anti-fracking initiatives failed to make the ballot in a state with a pretty sizable anti-fracking presence. The short answer: A late start, a deep-pocketed opposition campaign (funded by the oil and gas industry), a lack of funding and not enough organization kept Yes for Health and Safety over Fracking from collecting the valid signatures it needed. (It’s worth noting that, though the group considered delaying its anti-fracking campaign another year, it pushed the initiatives this year out of fear of – you guessed it – higher standards to qualify for the ballot if Raise the Bar passes.)

Another failed ballot initiative effort this year would have essentially been a TABOR time-out. It would have asked voters if they wanted to grant the state government permission, for 10 years, to retain tax money that flowed over TABOR-mandated revenue caps. (TABOR currently requires any revenue generated over projected limits to go back to individual taxpayers in the form of refunds.) Proponents of that measure canceled their campaign because they didn’t think they could pull it across the finish line this year.

Considering the time, money and labor required to pass a ballot initiative, it’s perhaps no wonder that most campaigns choose to push for constitutional amendments rather than statutes. For the same amount of campaign work, amendments have far more staying power.

So, if it’s not that easy, why make it harder?

One of Raise the Bar’s primary arguments is that the new rules would ensure rural and less-populated parts of Colorado will have a say in the ballot initiative process. Rather than collecting all their signatures from the Denver metro area, initiative campaigns would have to reflect statewide support.

Megyesy, the consultant who helped qualify Amendment 71 for the ballot this year, says these higher hurdles are a way to give more Coloradans a say in how the state is governed. Issues that affect rural Colorado— think livestock, water, natural resources— can wind up on the ballot because enough city slickers signed a petition. That happened in 1998, when billionaire Phil Anschutz funded an initiative to put in stricter environmental controls on hog farm waste. Voters gave it the green light and in the same election voted strongly against an industry-sponsored initiative.

Supporters also say Amendment 71 would help guard against out-of-state special interests hijacking the state constitution, which Colorado Springs Mayor John Suthers, the state’s former Republican attorney general and U.S. attorney, says happened in 2014. That year a Rhode Island casino operator wanted the right to run gambling at horse tracks in three Colorado counties and ran a ballot measure that ended up failing by a wide margin.

Another argument is that if voters want a direct say in how Colorado’s laws are written, they should go the route of amending state laws through the ballot initiative process, not by changing the constitution. That way, lawmakers can tweak them over time if the need arises.

Democratic Sen. Pat Steadman of Denver doesn’t like the practice of altering the state’s founding document every two years. He thinks doing so should be reserved for fundamental concerns like individual rights or the basic structure of government. Not issues like legalizing marijuana or changing how campaign finance is regulated.

“These are policy issues that should be able to be changed over time, that the legislature should have an ability to weigh in [on] and to update the laws as needed,” he has said. “When things go into the constitution, the legislature can’t do that.”

Raise the Bar won’t make the statute initiative process any more appealing— campaigns will still risk having their measures repealed or changed by state lawmakers. But by making it harder to amend the constitution, it follows that groups will be forced to pursue the statute route.

Lots of Colorado power players from across the political spectrum support this, don’t they?

Indeed. In their promotional material, the measure’s supporters have written a pretty memorable line: Every living governor of Colorado — Democrat and Republican — supports raising the bar.

So do big city municipal leaders like former Denver Mayor Wellington Webb. Colorado Springs’ Mayor Suthers has made videos in support of the effort. So has his mayoral opponent Mary Lou Makepeace, who also once served as mayor of the Springs. Current and former lawmakers in leadership positions back it, and “more than two dozen counties have passed resolutions endorsing Raise the Bar,” says the vote-yes campaign.

Dozens of business and industry groups also back the measure, including chambers of commerce, business strategy group Colorado Concern, the state bar association, and big-league business groups like Club 20— plus dairy farmers, egg producers, realtors, plumbers, pork producers, pipe welders and wheat growers throughout the state.

Many among this group wield influence in the halls of power through campaign contributions and adept lobbying. The political system operates by a logic that cannot be applied to a strong, unpredictable, demanding electorate with the ability to bypass politicians and shape Colorado in fundamental ways. TABOR drastically changed Colorado’s finances. The legalization of marijuana has changed the state economically and culturally.

Supporters of Raise the Bar tout their broad support among diverse politicians and groups, saying that “protecting our state’s constitution from gamesmanship is a cause that unites us.”

And it should be noted: Raise the Bar grew out of an effort from a group called Building a Better Colorado, a bi-partisan alliance organized by former University of Denver Chancellor Dan Ritchie and other business and political leaders who toured the state to find out what voters thought necessary to better Colorado’s future.

Out of that effort emerged two ballot measures: One asks voters whether Colorado should have a presidential primary. The other is Raise the Bar.

Who is the opposition then, and what are they saying?

Just as there is a diverse range of supporters, a strange-bedfellows constellation of people and groups oppose or have been critical of Raise the Bar. They include New Era Colorado, Conservation Colorado, the Bell Policy Center, The Colorado Firearms Association, The TABOR Committee, the Colorado Union of Taxpayers, and Greenpeace.

The Colorado Libertarian Party is against it, and, while the state Green Party hasn’t officially held an internal vote about the measure, co-chair Andrea Merida says she expects the party will come out in opposition.

Some critics point to the number of politicians and groups backing the measure as evidence that it’s a way to strip power from the people.

“If you’re a politician, of course you hate the initiative process,” says Jon Caldara, president of the Libertarian Independence Institute think tank in Denver. “It’s what brought transparency, it’s what brought term limits, it’s what brought TABOR, it’s what brought ethics laws,” he adds, listing other past ballot measures voters have supported through constitutional amendments.

“Of course you hate it. You must hate it,” he says. “That’s why these things are in the constitution, so [politicians] can’t change it.”

A major issue opponents have with Amendment 71 is that the new rules would make future changes to Colorado’s constitution virtually impossible for all but the wealthiest campaigns. Grassroots groups say they have a hard enough time fulfilling signature requirements when they can circulate petitions up and down the populated streets of Front Range cities. Collecting signatures from each of Colorado’s 35 Senate districts? No way, they say.

Such a bar would be “unreachable,” Caldara says.

He frames this year’s ballot battle as a David and Goliath story pitting politicians, insiders and industry groups against citizens and citizen groups. He calls the push for the measure a classic power grab.

Nuñez of Common Cause agrees— and Common Cause and Caldara’s group do not agree on much.

“I think, broadly, Amendment 71 is a blatant attempt by political elites and wealthy special interests to block the people from an important tool of government, and that’s why you see such diverse interests coming together,” she says.

There’s also an idea countering the argument that Amendment 71 would give more of Colorado a voice. If the measure passes, it might inadvertently give veto power to a small minority of Colorado.

“One thing no one is talking about,” says Tim Hoover, of the Denver-based economic think tank Colorado Fiscal Institute, is the “tyranny of the minority.” If Raise the Bar passes and a person or group wants to stop a future ballot measure to amend the constitution, they would no longer have to run an expensive statewide campaign such as this year’s “Decline to Sign” effort, a pricey ad campaign that encouraged voters not to sign anti-fracking initiatives. Instead, he says, all they would have to do is lock down one large neighborhood in one geographically small but population-dense Senate district.

“This means that one or two neighborhoods in the Denver area could keep the entire rest of the state from considering an issue that the overwhelming vast majority of Coloradans want,” he says.

Who’s paying for Raise the Bar? And how much?

Oil and gas industry groups have been the largest contributors by far. Protecting Colorado’s Environment, Economy, and Energy— a group funded by oil and gas corporations Anadarko and Noble Energy— has donated $1 million of the $2.7 million Raise the Bar has collected so far. Vital for Colorado, another oil and gas industry group, has given $600,000. Colorado Concern, a business coalition, kicked in $185,500.

All told, the oil and gas industry is behind 63 percent of all donations to Raise the Bar, making it the largest single contributing industry. But funding comes from other industries: The Colorado Gaming Association gave $150,000, Colorado Dairy Farmers gave $100,000, and the Colorado Association of Realtors donated $50,000.

The initiative has attracted individual donors, too. Ritchie, the former chancellor of the University of Denver and the current chairman of the board of the Denver Center for the Performing Arts, gave $25,000. Entrepreneur and philanthropist Tim Gill, founder of The Gill Foundation, gave $15,000.

So far, Raise the Bar has spent about $2.2 million, $900,000 of which went to paid signature gatherers and about the same to advertising. Much of the rest went to legal services and consulting. It cost close to $1 million just to get the measure on the ballot, and that’s without a raised bar.

As of Sept. 14, the most recent campaign finance disclosure deadline, Raise the Bar had about $525,000 on hand.

Is this really, then, about protecting the oil and gas industry in Colorado?

The passage of Amendment 71 would make it nearly impossible to put anti-fracking measures such as this year’s proposed Initiatives 75 and 78, on future ballots. The initiatives sought to give Coloradans the power to limit oil and gas development in their communities through mandatory setbacks and local control.

But, Raise the Bar supporters say the initiative is about more than the oil and gas industry.

“The battle to make it harder to amend the constitution than change a law predates the fracking wars,” says former Colorado GOP Sen. Greg Brophy of Wray, who is working on behalf of the Raise the Bar effort.

“Of course [the oil and gas] industry is concerned, along with a large majority of other industries and business owners across all parts of the state,” adds Doug Flanders, director of policy and external affairs for the Colorado Oil and Gas Association. “Amendment 71 will truly show the voice of the people. All parts of Colorado will need to show support, not just from a few select locations.”

Luis Toro, the director of Colorado Ethics Watch, a nonprofit group that tracks money in politics and does not have a position on Amendment 71, says the variety of donors to Raise the Bar shows that it’s about more than oil and gas.

“It is true, though, oil and gas industry participants wouldn’t spend so much money on this initiative if they didn’t think it was important to their bottom line,” he says.

What are newspaper editorial boards saying?

The Denver Post editorial board came out against the proposal.

“Paying for a signature gathering effort in 35 districts across the state, and defending signature challenges in all of those districts, would easily render the cost of presenting a ballot unaffordable to all but the wealthiest of campaigns,” the editorial read. “(And yes, citizens in many states aren’t able to amend their constitutions. But it’s a valuable right in Colorado that helps keep the elite in check.)”

Out on the Western Slope, The Grand Junction Daily Sentinel came out in favor, sticking the geographical argument, and even taking a few shots at The Denver Post.

“As a practical matter, only measures with genuine grassroots support will have a chance to get on the ballot if Amendment 71 passes,” the paper opined. “Proponents of a measure will have to come to Mesa County, hold town hall meetings and make a convincing case for the change, and then do the same across the state.”

Furthermore, The Daily Sentinel wrote, “The prosperity gap between urban and rural Colorado has perhaps never been wider. The Post’s cynical position opposing Amendment 71 underscores one of the reasons for that chasm.”

Lastly, of course you want to know: Did Raise the Bar hold themselves to their own standard?

So were its supporters able to get 2 percent of registered voters to sign petitions in each state Senate district to qualify their measure for the ballot? Well, they say they tried, but won’t say for certain if they were successful.

Brophy says the campaign collected 75,000 of its 183,000 total signatures from outside the Denver metro area. He says signatures came in from every district, and that the campaign did break 2 percent in seven of Colorado’s most rural districts.

But those counts were done during the signature gathering process and haven’t been verified, though the signatures are publicly available. When The Colorado Independent asked Brophy about whether Raise the Bar has plans to conduct an official count, he said, “You can count them yourself.”

Photo credit: USMC Archives, Creative Commons, Flickr 

Around 3 p.m. on Sept. 23, Patrick Hale – once married, once living in a lovely Victorian home in north Denver, once driving a BMW – signed onto the Denver Housing Authority website from a computer at The Samaritan House homeless shelter, where he now lives.

He’d heard through a mental health therapist that DHA would be opening its annual lottery for Section 8 housing vouchers, also known as Housing Choice Vouchers. The vouchers cover two-thirds of the cost of rent for qualified tenants who are low-income, elderly and/or disabled. 

“It’s all new to me,” says Hale, who used to make his living in real estate.

Entering the lottery was easy enough. It’s not the actual application, just an interest card that basically says, “Hey, I’m here. I need a place to live I can afford. Here’s how you can reach me.”

In 1995, Denver became the first city in the nation to switch from a wait list to a lottery for Sec. 8 vouchers. The wait had begun to stretch into years and DHA sees a lottery as a fairer way to go. Every year, everyone has the same odds. Applicants enter in the fall for a chance to win a voucher during the following year.

This year, DHA opened its lottery for 2017 vouchers on Thursday, Sept. 22 at midnight.

In the first hour, 713 interest cards flooded in. By 9:30 Friday morning, 16,500 households had entered. By the close of the lottery at midnight Friday, 21,500 had submitted their cards.

And the number of vouchers upon which they were pinning their hopes? 300.

Three hundred is an estimate. The precise number depends upon Congressional funding and the housing market. On the bright side, if one can be said to exist, DHA’s Sec. 8 funding has been generally stable over the last five years, averaging roughly $60 million a year. But $60 million doesn’t buy what it used to. Not in this booming city. Not in this rental market.

Between the 2014 and 2015 lotteries, 45,470 people signed up for what so far has totaled 900 vouchers. Only 300 hundred vouchers were released this year – half as many as in 2015 – even though the budget increased by about a million dollars. Rising rents are taking a bigger bite out of the funding, says DHA’s executive director, Ismael Guerrero. So, for example, this year the feds set a $965-a-month limit for a one-bedroom. Three years ago, that limit was $726 a month. Next year, that one-bedroom threshold is projected to rise to $1,031 a month.

It gets worse. Of the 300 vouchers awarded this fiscal year (which ended on Sept. 30), only 150 have been used. For the most part, says Stella Madrid, DHA spokeswoman, the others either have not been able to find a landlord willing to accept a voucher or the rents landlords want to charge were too high. The city has a total of about 6,700 vouchers now in use.

“The lottery numbers are our canary in the coal mine,” Guerrero says. “The families that we house, they’re fine. They have a subsidized unit. They have stable housing. We can deliver programs to them.” But, he says, when tens of thousands of people are entering a lottery for a few hundred vouchers, “whether they were eligible for our program or not, they are clearly in need. They are in distress.”

The number of people entering the lottery has stabilized over the last few years in the low twenty thousands, he says, but “that’s up from nine years ago when I started here and we were getting about 9,000 interest cards in the lottery. And, we were, like, ‘Wow, 9,000!’”

The ability to apply online makes it easier for more people to sign up, he says, but the demand is also much greater.

And so, here, too, is a way in which Denver’s affordable housing crisis reveals itself – a rippling that submerges the already-struggling lower-income families, the elderly, the disabled. It flows outward, following the migration into the suburbs, where rents are cheaper.

In Lakewood, where 3,814 applications came in during that city’s two-day lottery in late September, the housing authority is seeing “a lot more out-of-town and out-of-state applicants,” says Tillie Wright, assisted housing administrator for Metro West Housing Solutions. It is also seeing more working poor applying for housing assistance, she says. The agency expects to award 100 to 150 vouchers in 2017.

Wright says Denver residents have always entered Lakewood’s lottery, but Metro West is now seeing “a lot more of DHA’s voucher holders,” coming in because rents are so high in Denver. Lakewood keeps a close eye on that, she says, so that it can reserve vouchers for people who entered its lottery, but, as in Denver, Lakewood is awarding fewer vouchers due to higher rents.

The ripple flows into Aurora, which is absorbing about 500 to 600 Sec. 8 vouchers a year from other jurisdictions. About 125 a year are coming from Denver, says Craig A. Maraschky, head of that city’s housing authority. On top of that, Aurora’s Housing Authority has another 1,400 vouchers in use. 

The good news, Maraschky notes, is that if Aurora begins administering a voucher from, say, Denver, then Denver is freed to release another. The bad news is that Aurora is a city that still uses a wait list for Sec. 8 vouchers and not a lottery, and it has not opened that list to new applications since 2005.

Yes. 2005. Near the peak of the last housing boom.

“We had 3,000 on the wait list then,” Maraschky says. “I think we’ve whittled it down to about 200 now.”

Aurora has no public housing to siphon off demand. (Denver has 3,937 apartments in its public housing communities, and the wait for one of those is two to four years, depending on the number of bedrooms.)

“You know, we have elections in November and state and federal campaigns underway and you don’t hear much about housing,” Maraschky says. “It’s a nationwide problem. The need for senior housing, in particular, is huge, and seniors are a big voting bloc. Yet, somehow this is not on the radar.”

The housing crisis, he says, is the double whammy of wage stagnation and high housing costs.

“If people who have college educations and decent jobs can’t afford housing, then, good Lord, what are people in the lower-income brackets supposed to do?”

Which is a question that Patrick Hale ponders.

“Right this moment, it’s — I don’t want to use the word bleak — but it’s not promising, particularly if I want to stay in Denver proper,” Hale says. “It’s, as they say, ‘Don’t get your hopes up right this moment.’”

He says things started unraveling for him several years ago. There was a divorce, followed by a bout with cancer, and “after the cancer, frankly, my life fell apart and I never was really able to pick up the pieces, and I still find myself that way.”

Drugs, I ask. Alcohol? Neither, he says. Depression, maybe, he says. “I don’t know what happened, Tina. I just lost my mojo.”

He’s 65, on Social Security, and he works $10- to $15-an-hour odd jobs, but is worried about earning too much money and losing his Medicaid. He’s been living at the Samaritan House for 90 days now, he says, and was with a friend before that.

I think about Hale and where he and others in similar situations fit in as the city of Denver seeks to carve out more affordable housing. The city races against a clock that marks days left in a homeless shelter, on a friend’s couch, in the apartment where the landlord plans to raise the rent, or where the owner plans to sell the building.

DHA has an ongoing outreach program to landlords, trying to get more to accept Sec. 8 vouchers by, in part, doing the initial screening and by offering a “Gold Star” class for tenants that emphasizes landlord expectations and financial literacy.  “An easy and convenient way to guarantee your monthly income,” says a brochure emblazoned with the words, “Seeking Denver Landlords.”

The city is looking at ways to compete on the open market for affordable housing that’s in danger of being sold and replaced with more expensive units. Last month, City Council approved the creation of a dedicated stream of money for its affordable housing trust fund – and Guerrero foresees some of that projected $15 million a year over the next 10 years will go to help pay for DHA projects.

I think about something councilwoman Robin Kniech told me about how the time was right to push for a funding stream built on development fees and property taxes. The affordable housing crisis had moved from the ranks of the impoverished and low-income earners into the ranks of the middle-class, she said. And while there has always been an economic imperative underlying safe, decent affordable housing for all, when the crisis is largely limited to lower-income families it is easier for the larger population to ignore or to accept. But now, she says, it is business owners who have been demanding solutions because their workers cannot afford to live here. It is the teacher who joins the bus driver in the exodus. The city and its schools cannot afford to lose middle-income earners.

This is a remarkably candid, not to mention accurate, assessment from an elected official. It does not, however, necessarily acknowledge the Patrick Hales of the world and the terrifying fluidity with which one can fall from the ranks of the middle- to the low-income earners, from the visible to the invisible.

Hale tells me he heard there is a two-year waiting list for a voucher. No, I tell him. No waiting list. It’s a lottery and people have two days a year to enter. This lottery is for next year’s vouchers.

“Well, hundreds probably enter,” he says.

I take a deep breath. “I really don’t want to tell you,” I say.

He laughs. “Thousands?” he says. “Tens of thousands? Hundreds of thousands?”

“Twenty-one thousand,” I say.

He’s quiet for a second. “Yeah,” he says. “Yeah.”

His voice rises, determinedly upbeat. “I don’t know what’s in store for me,” he says. “I take it one step at a time, just one foot in front of the other.”

Hale can stay at the Samaritan House for 30 more days. Then he will have to move on.

Photo by Allen Tian, The Colorado Independent

With the election only a month away and mail ballots due out in less than two weeks, “gray money” groups are pouring millions of dollars into Colorado’s most contentious state House and Senate races.

Four Republican committees have raised $3.5 million in the last two years, and spent more than $700,000 between September 15 and September 30, mostly on advertising. Three Democratic groups raised $6.6 million in the past two years, and between September 15 and September 30 spent $1.6 million, much of it on advertising.

Committees working on behalf of candidates from both parties are far out-raising the campaigns themselves. Even campaigns in the most contested races are raising less than one-tenth the amount that the Super PAC’s are raking in.

The term “Gray money”  refers to spending by independent expenditure committees, also known as Super PACs, that are funded by other political action committees. Funding in this way makes it difficult for the public to identify the real donors without tunneling through layers of political action committee disclosures. Unlike “dark money,” which is considered untraceable, it’s possible to track down the sources of gray money — with a lot of leg work.

Two types of groups ran through millions of dollars last month: 527 committees and independent expenditure committees.

A 527 committee is a tax-exempt organization (527 is the section of IRS code under which these committees are registered) set up for the sole purpose of influencing an election. A 527 can raise unlimited amounts of money from individuals, labor unions and corporations, but must disclose donors and expenditures. A 527 committee cannot coordinate with a candidate or candidate’s committee, and cannot directly encourage votes for or against a candidate. Some 527s in Colorado, particularly those involved with the state House and Senate races, pass along their contributions to associated independent expenditure committees.

An independent expenditure committee, or IEC, also can raise unlimited amounts of money, and like a 527 cannot coordinate with candidates or candidate committees. But unlike a 527, an IEC can ask you to vote for or against a candidate. In addition, in the last 60 days before an election, an independent expenditure committee must file a 48-hour notice for any expenditures of $1,000 or more, making it possible to see those expenditures closer to real time instead of waiting two weeks or more for the regular campaign finance filings.

Luis Toro, director of Colorado Ethics Watch, says there’s no real advantage to contributing to a 527 committee, which can’t directly advocate for the election or defeat of a candidate, versus donating to an independent expenditure committee, which can tell you how to vote. Both types have more or less the same disclosure requirements.

The biggest difference between the two is in what’s known as electioneering communications. In the last 60 days before an election, an independent expenditure committee must disclose the candidate(s) targeted in the communications, in addition to how it spends its money.

So who are the big players in the last two weeks of September? And who are they backing?

THE STATE SENATE

The biggest spending by 527 and IECs on both sides of the aisle is directed at the following three state Senate races:

• Senate District 19 – a rematch between Republican Sen. Laura Woods of Westminster and Democrat challenger and former Sen. Rachel Zenzinger of Arvada
• Senate District 26, between Democratic state Rep. Daniel Kagan of Cherry Hills Village and Arapahoe County Commissioner and Republican Nancy Doty
• Senate District 25, between Republican state Rep. Kevin Priola of Henderson Democratic challenger and former state Rep. Jenise May of Aurora

How much has each committee spent in the last two weeks?

The Senate Majority Fund, a 527 that backs Republicans, has spent $82,241 in the past two weeks, mainly to support Doty, Priola and Woods with advertising on Facebook, direct mailers and printed materials that can be handed out door-to-door.

The Senate Majority Fund also made a dozen smaller ad buys on Facebook to support incumbent Republican Sen. Larry Crowder of Alamosa, who faces Trinidad Sheriff and Democrat Jim Casias; and incumbent Republican Sen. Randy Baumgardner of Hot Sulphur Springs, who is in a rematch with Democrat Emily Tracy of Breckenridge. Baumgardner has recently come under fire for allegations that he and his wife used state property for personal gain when he was employed by the Colorado Department of Transportation. Baumgardner also recently sent out a tweet from an interim Water Resources Review Committee meeting that included a photo of a scantily-clad woman.

Waiting in the wings: the Senate Majority Fund IEC, which received $19,438 from the 527 Senate Majority Fund at the end of September but has not yet identified any expenditures. In 2014, that same IEC spent more than $515,000 in the last three weeks before the November election, with its largest expenditures in the races between Woods and Zenzinger and between now-Republican Sen. Tim Neville of Littleton and then-Democratic incumbent Sen. Jeanne Nicholson of Blackhawk.

The Better Jobs Coalition IEC is run by Rick Enstrom of Enstrom Candies and a former Republican House candidate. His gray money group paid out $98,672 between Sept. 21 and Sept. 27 to support Doty, Priola and Woods as well as to back House Republican Rep. J. Paul Brown of Ignacio.

Another Republican 527, Colorado Citizens for Accountable Government, has spent $526,021 in the past two weeks, mostly to oppose Democratic candidates in races for both the House and Senate. The biggest target was Kagan; the committee spent $105,000 on TV ads to oppose his run against Doty. The committee put $100,000 into TV ads opposing May, and $45,000 to oppose Zenzinger.

What’s at stake: who runs the state Senate. Republicans hold a razor-thin 18-17 advantage, and the Senate seat in Arvada, currently held by Woods, is believed to be the seat that will determine which party controls the Senate.

The two biggest committees supporting Democratic candidates are targeting the same three races in the Senate and exclusively through gray money.

For Democrats, the biggest spender in the last two weeks of September was the Colorado Citizens’ Alliance IEC, which registered with the Secretary of State on September 7. The committee is associated with the Democrats’ favorite bookkeeper Julie Wells (subscription required), and has spent $434,826 in the last two weeks of September. All of the expenditures went for advertising either in support of Democrats Kagan, May and Zenzinger or in opposition to Republicans Doty, Priola and Woods. The money paid for advertising on cable and the Internet and for mail pieces.

The committee’s advertising against Priola targets a paid leave issue from January, his donations from special interest groups and a pay raise vote. The Doty ads target her for refusing to accept mail-in ballots while she was Arapahoe County Clerk and Recorder and for which the county was sued, using county funds for personal expenses and opposing abortion rights (Doty is pro-life but believes in exceptions, particularly to save the life of the mother).

The Colorado Conservation Victory Fund, an IEC, has split its targeted advertising between Senate and House races. The committee has spent $195,210 on advertising and other costs in the last half of September, with $15,710 to oppose Woods and Doty or support Zenzinger.

Who were the big contributors?

The Republican-linked Senate Majority Fund 527 has raised $2.1 million in the last two years.

Its largest donors:

• Petroleum Development Corporation of West Virginia ($170,000)
• Noble Energy ($104,000),
• Encana Oil and Gas ($110,000)
• Altria, formerly tobacco giant RJ Reynolds ($40,000)

Colorado Citizens for Accountable Government has raised $1.3 million. Of that, $800,00 came from the Washington, D.C.-based Republican State Leadership Committee, which is funded by the U.S. Chamber of Commerce, Koch Industries, Altria, WalMart and Amway, among others.

The Better Jobs Coalition IEC has one substantial contribution of $100,000 on Sept. 16 from Colorado Citizens Protecting Our Constitution, a pro-Second Amendment group. This group is not registered as a committee within Colorado’s campaign finance system. A business filing with the Secretary of State’s office shows it is a 501(c)4, or social welfare organization under IRS rules, which means it can spent up to 49 percent of its funds on political activities. The group  has been tied in the past to EIS Solutions, which is owned by former Republican Senate Minority Leader Josh Penry.

On the Democratic side, all of the funds for the Colorado Citizens’ Alliance IEC came from its 527 committee. The Colorado Citizens’ Alliance 527 has received about $2.7 million in the last two years.

Its biggest contributors:

• national and state teachers’ unions, which have donated $813,000
• Service Employees International Union ($150,000), which is associated with the state employee labor union, Colorado WINS
• America Votes ($185,000), a national organization that coordinates fundraising and voter outreach efforts with progressive groups around the nation
• Conservation Colorado Victory Fund IEC ($100,000)

The Colorado Conservation Victory Fund IEC raised $1 million in the last two years. Its biggest donors:

• Conservation Colorado ($475,000)
• NextGen Climate Action, founded by California billionaire and philanthropist Tom Steyer ($200,000)
• Reuben Munger of Boulder, founder of Securing America’s Future Energy, a group committed to combating the economic and national security threats posed by America’s dependence on oil ($100,000).

THE HOUSE

Late spending on House races shows where Republicans think they can hang onto seats or even pick up one or two. With Democratic control in the state House at 34-31, Republicans need only pick up two seats to take over.

In addition to Senate targets, Colorado Citizens for Accountable Government has directed ads against Democrat Barbara McLachlan of Durango, who is challenging incumbent Rep. J. Paul Brown. That’s a race that has been competitive from the get-go.

Potentially a more competitive race than was expected: the contest between Democrat Jeff Bridges of Greenwood Village and Republican Katy Brown of Cherry Hills Village. Brown pulled off a surprise endorsement from the Colorado Education Association last month – support that Democrat Kagan, who is term-limited, won in his three elections to the House.

Republicans have not represented the district in at least 30 years, according to Secretary of State election archives. Democrats have 1,000 more voters in the district than Republicans, but unaffiliated voters make up a substantially larger portion of the voters than those from either major party.

How much has each committee spent in the last two weeks?

The Democrats’ Common Sense Values IEC spent $455,212 between September 15 and September 30 on advertising for House races.

Their Republican targets:

• Rep. JoAnn Windholz of Commerce City, House District 30
• Chris Hadsall of Lakewood, House District 23
• Karen Nelson of Broomfield, House District 33
• Jessica Sandgren of Westminster, House District 31
• Katy Brown, House District 3
• Rep. J. Paul Brown, House District 59

Almost $87,000 of the spending went after just one lawmaker – Windholz – and on just one issue: her claims last November that Planned Parenthood instigated the violence at the Colorado Springs clinic that left three dead, including a police officer who was also a pro-life pastor, and nine injured. Windholz’ remarks were first reported by The Colorado Independent.

Common Sense Values IEC also spent in support of Democrats running in those House seats on education and seniors’ issues. The committee is another one of those groups that started up late in the election season (it registered on August 2) and has now spent all of its money, a total of $648,115, with all but $25,000 spent in the month of September.

The Conservation Colorado Victory Fund also spent $29,305 to oppose Rep. J. Paul Brown and/or support McLachlan.

Who were the big contributors?

All of the $935,779 raised by the Common Sense Values IEC came from its 527 committee, which has raised $3 million in the past two years.

The biggest donors to Common Sense Values’ 527 group are national teachers’ unions ($755,000), Conservation Colorado ($100,000) and the Service Employees International Union ($150,000).

By comparison, candidates running for the state House and Senate, even in the most contested races, at best may raise a fraction of the amounts raised by the 527 and gray money committees that advertise on the same races. Candidates for the top two races in Colorado so far this year, in House District 3 (Arapahoe and Denver counties) have collectively raised $273,806 and spent $252,507; in House District 59 (Durango) the fundraising from the two candidates stands at $264,404 and spending collectively at $210,739. Note: this year, HD3 had contested primaries for both major political parties, although the HD3 seat is traditionally one of the most expensive races in the state even without a primary.

Photo: 401(K) 2012, license via Creative Commons, Flickr 

Anonymous fliers are targeting candidates in the suburban battlegrounds of hotly contested Colorado House and Senate races — a tactic political observers say is a new and troubling development in state campaigns, but not necessarily an illegal one.

The fliers lack the “paid for” disclosures typically seen on election season political leaflets and carry no information about who is behind them.

While disclosure is required on campaign material that advocates on behalf of a candidate or ballot issue, campaign finance experts say the fliers skirt the law because they do not specifically urge someone to vote for or against the candidates targeted.

The fliers — glossy professional pieces — do not contain the “magic words” that would mandate disclosure, says Steve Bouey, manager for the campaign finance department at the Secretary of State’s office. Those words include such phrases as “vote for,” or “vote no.” Instead the fliers praise or condemn specific candidates — often without bothering to give sources for the information passed on as fact. 

So far,The Colorado Independent has learned about four such fliers, all printed on behalf of Republicans in tight races.

Consider a flier in support of Sen. Laura Woods, a Republican incumbent up for re-election in a suburban swing district covering Arvada and Westminster.

The piece touts Woods for her transparency and commitment to smaller government. But it also makes claims about her opponent, Rachel Zenzinger. And those claims, Zenzinger says, are inaccurate.

The flier states, without a citation, that Zenzinger “voted to take a taxpayer funded trip to China,” a reference to an Arvada sister-city program and to Zenzinger’s time on City Council. But Zenzinger says she never went to China, and she actually made a motion that no city dollars would be used for a trip there.

“Given that I made the motion, that’s the most ridiculous claim there,” she said about the anonymous flier. “You don’t know who is telling you this because they didn’t put their name on it.”

After examining the Woods’ flier, Bouey said he couldn’t provide official legal advice or an opinion about it, but said the flier does not appear to explicitly urge someone to vote for or against a candidate. Such language would meet the definition of an “independent expenditure” by a campaign and must be reported and disclosed. Without it, “no statement would be required,” he said.

Woods says she is not behind the fliers, but is aware they had been popping up in the district. That’s unusual, she said, adding that, in general, it’s a “good idea” to disclose.

“I think 98 percent of the fliers I’ve ever seen come in my mailbox … they have [disclosures] on there,” she told The Independent. Asked how she felt about being supported by an anonymous group or individual, she said only that she understands state law doesn’t require disclosures.

But while technically legal in Colorado, keeping voters in the dark isn’t common practice among groups and campaigns, said Mario Nicolais, an attorney and campaign finance expert who advises candidates and organizations.

“I think the vast majority of organizations and entities that play at a substantial level in Colorado include [disclosures],” he said. “Anyone that I’ve ever advised on campaign finance questions, I’ve always told them it’s not required by law, but I highly recommend it.”

With Republicans holding a one-seat majority in the state Senate, one new Democrat could change the balance of power in the state legislature. The Woods-Zenzinger matchup is perhaps the most closely watched legislative race this year in Colorado and is a big-money tug-of-war for both sides of the political divide. The state GOP has given Woods nearly three times what the party has given other Republicans this year, and liberal mega donors like George Soros and California billionaire environmentalist Tom Steyer have given to the Democrat.

But that money is disclosed in state campaign finance filings. Without disclosure on the anonymous fliers, voters have no idea who is behind them.

“Who is to say that this isn’t coming from some sort of outside group from outside the state who could very well be putting millions of dollars into a race to influence a community, to influence voters with false information,” Zenzinger said.

The Woods-Zenzinger race isn’t the only one where such fliers are fluttering around doorsteps and mailboxes.

In Adams County, anonymous fliers touting Republican teacher Jessica Sandgren have popped up in her race against incumbent Democratic Rep. Joe Salazar, a civil rights attorney. The flier touts Sandgren’s transparency, common sense and integrity, and lists her policy proposals.

Sandgren said she is aware of the fliers, but noted that anything from her own campaign has come with a “paid for by” notation. She said she has not given much thought to who might be dropping anonymous laudatory fliers on her behalf.

Salazar said he’s not surprised dark money has hit his race, but says the way it has is unusual.

“I can’t remember a time when I’ve seen a walk piece or a mail piece not have some type of disclosure of where it comes from,” he said. 

Democrats control the Colorado House by three seats, and the Salazar-Sandgren race is another bankrolled by high-profile donors, with Soros and Steyer among Salazar’s backers and Republican leaders supporting Sandgren.

In the Colorado Springs area, a flier praising Republican Rep. Kit Roupe lacks any disclosure as she campaigns against Democrat Tony Exum.

“That’s the system that we live in today,” Exum said about the anonymous fliers. “People don’t have to disclose who they are or what they’re for or who they’re against.”

Roupe didn’t return a phone call or an email.

In the battleground suburbs of Arapahoe County, an anonymous flier in support of Republican Nancy Doty is in circulation. Doty is running for an open Senate seat against Democratic Rep. Daniel Kagan in a race that also could determine control of the Colorado Senate.

“This is the first time in my political life that ads for my opponent have appeared without disclosing any information as to who’s paid for them,” Kagan said. “It’s part of an alarming trend which is eroding our democracy and shows contempt for the voters in our district. They deserve to know who’s behind these ads.”

Doty did not respond to requests to talk about the fliers.

The Doty flier does list a website, NancyDoty.co, that is paid for by The Senate Majority Fund. The SMF is a nonprofit 527 group, a tax-exempt political organization “dedicated exclusively to educating the public about their elected officials & candidates seeking office in the Colorado State Senate,” according to its website.

Some of the other fliers look similar in their production to the Doty flier linked to the Senate Majority Fund. The anonymous Doty flier and anonymous Woods/Zenzinger flier, for instance, both use the same photo of a mountain and similar graphic design work. And those fliers look very much like fliers paid for by the Senate Majority Fund that do come with disclosures, including one on behalf of Woods. 

The SMF has raised more than $3 million, according to state campaign finance data. The group is also airing $200,000 in cable and satellite ads to promote Woods and Doty.

A phone message and e-mail to the Senate Majority Fund was not returned.

While fliers like these in Colorado do not have to say who paid for them, that doesn’t give a free pass to whoever is doing the spending. 

At some point, the cost of the fliers must be reported in Colorado as what is called electioneering communications, says Luis Toro, director of Colorado Ethics Watch, a nonprofit that keeps tabs on campaign finance issues. But unless someone knows where to look, finding the source will be difficult. Electioneering spending is reported online through a service called TRACER in Colorado, and one would have to dig through pages of records looking for a potential link.

The mysterious fliers this election season in Colorado might have at least one unintended consequence for whoever sent them out.

Zenzinger says that if she is elected she’ll look for ways to expand disclosure requirements and shore up loopholes.

“I think it will be my first law,” she told The Independent.

Photo by r2hox for Creative Commons on Flickr.

Cover image: Photos of a Texas Tea well in Brighton from 2012 and 2016 show that no action was taken by Texas Tea to clean up its mess. As of today, no one has cleaned up the site, which is still leaking from the well head.  (Photo credits: COGCC, Ted Wood/The Story Group)

–

Over the past decade, Colorado has grappled with how to balance the enormous economic value of oil and gas production, including tax revenues and jobs, with its unwanted impacts on residential communities and the environment. FRACTURED is a new series by The Colorado Independent that examines the science, politics and humanity of oil and gas development and explores its impacts on Coloradans around the state. 

–

Other stories in this series include Part I: Who’s behind ‘decline to sign’ efforts?, an examination of the public relations efforts of the oil and gas industry to influence Colorado politics; Part II: The making of a fractivist, a look at of how suburban parents have been energized to fight drilling in their neighborhoods; Part III: Why Colorado’s anti-fracking measures didn’t make the ballot and Part V: Trouble in Triple Creek, which asks: Are new rules to address “neighborhood drilling” being followed? 

__

In late spring, the chief regulator of Colorado’s oil and gas industry, the Colorado Oil and Gas Conservation Commission [COGCC], finally brought the hammer down on Texas Tea, LLC.

The small oil and gas operator, which incorporated in Colorado with more than 30 wells around Weld and Adams counties, had been on the state’s enforcement radar for years. The Commission had tagged Texas Tea with repeated violations dating back to 1999, including spills, mechanical failures, abandoned wells and, as time went on, accumulating unpaid fines.

In a terse letter to the owner, Robert Parker, dated June 15, 2016, COGCC Director Matthew Lepore summarily shut down Texas Tea and seized its assets around the state. “Effective immediately, the Commission has terminated Texas Tea’s Operator Number…and revoked Texas Tea’s right to conduct oil and gas operations in Colorado,” Lepore wrote, cautioning Parker with boilerplate language that the Commission “will not tolerate threats or violent behavior” in response to the ruling. The COGCC went on to claim all equipment, saleable product and miscellaneous assets from Texas Tea’s operations.

Eighteen years passed between the first violation notice and the shutdown order. In that time, Texas Tea racked up 54 more violations and accrued fines of more than $320,000, which will likely go unpaid. In the aftermath of the company’s closure, the city of Brighton and other communities have been left with abandoned wells that local officials fear may leak into the community’s groundwater.

Meanwhile, Texas Tea’s financial guarantee, even combined with the potential sale of its assets, almost certainly won’t be enough to cover the cleanup and plugging of its wells, leaving the Commission responsible for cleaning up whatever mess the company left behind.

The oil and gas industry contributes significant public revenues to the state of Colorado each year. But the story of Texas Tea reveals what those in the industry, environmentalists and the Commission itself have long known: Colorado’s regulatory power over oil and gas drilling is fractured, hamstrung by jurisdictional limits, inherently vulnerable to conflicts of interest and shot through with loopholes that allow well operators to skirt the true costs of cleanup. Regulation is also limited by an understaffed inspection regime that still relies on voluntary industry reporting and conflicting mandates. Toxic air emissions, perhaps the most consequential impact of oil and gas activity on human health, are neither inspected nor regulated by the COGCC, but instead fall within the bailiwick of yet another understaffed state agency.

The Commission’s compartmentalized archive containing decades of production, inspection and violation data makes it hard to say just how many other violators still operate in the state despite past-due fines and other repeat offenses. Texas Tea’s story, then, becomes a parable that exposes serious gaps in how Colorado regulates one of its biggest – and dirtiest – industries.

Texas Tea well, Blow Moore 301, located in Brighton’s growth area. This site has been taken over by COGCC and is not currently in production. This site had leaking tanks that were cleaned up by the COGCC this year. (Photo: Ted Wood/The Story Group)

A fractured system

The boom in oil and gas production in Colorado over the last decade overwhelmed state inspectors and regulators. A rapid increase in drilling placed industry representatives at odds with citizen groups and communities concerned about both new and existing oil and gas development. In response to widespread fears that companies weren’t acting in the best interests of citizens, four Colorado cities (Ft. Collins, Lafayette, Longmont, and Broomfield) and two counties (Boulder and El Paso) passed local fracking bans and/or temporary time-outs from 2011 through 2013.

The industry fought back with a massive public relations campaign. At a 2015 meeting of the Interstate Oil and Gas Compact Commission, public relations expert Mark Truax outlined how the industry had amassed a multi-million dollar war chest, funded largely by Texas-based Anandarko Petroleum Corporation and Noble Energy, Inc. He boasted that the industry was using the money to influence elections at various levels of government and to fund a pro-industry advertising blitz.   

Related: Who’s behind Decline to Sign?

As grassroots organizers clamored for more regulation, Gov. John Hickenlooper convened a task force to address the concerns of both the oil and industry and worried Coloradans. In 2014, Colorado passed methane regulations that were hailed as groundbreaking — they were even used as guidelines for the Environmental Protection Agency’s nationwide methane regulations. At the time, Hickenlooper announced that the guidelines would ensure Colorado has the “cleanest and safest oil and gas industry in the country.”

In the year that followed, the COGCC approved new rules to increase its authority over wayward oil and gas operators. Those rules permit the Commission to hire more inspectors, assess higher fines for violators and keep a closer eye on operators around the state. With its new, bulked-up powers, the COGCC carried extra regulatory responsibilities after  the Colorado Supreme Court in May or this year overturned the local fracking bans.

But even with beefed up regulations, critics of the oil and gas industry – and even some industry insiders – describe a disturbing reality: For a company to be handed meaningful sanctions, it has to be shown to be a repeat and flagrant violator of state law. On the rare occasions that operators are held accountable, the Commission is frequently still left paying for cleanup. A recent investigation by the Denver Post documented how lax oversight and inadequate regulations on multiple fronts have led to dozens of deaths and injuries of oil field workers.

The COGCC is funded by the very same industry it watchdogs, through taxes paid by oil and gas companies. Industry lobbyists have helped write laws that exempt oil and gas companies from certain federal environmental protections, and a fractured system of monitoring compliance with existing state and federal environmental laws leads to uneven enforcement. Few opportunities exist for public participation in the process.

“The COGCC will never say no to operators,” said Doug Saxton, co-chair of the Battlement Concerned Citizens, in a statement released after the Commission approved a contentious plan to drill in that Garfield County community.

Nick Koster, a “completions engineer” who has worked in 10 states and Canada for a variety of companies running hydraulic fracturing and other operations, told The Independent that Colorado “is one of the more regulated states” in the U.S. and “has a reputation for being well enforced.”

But, he added, while he can’t speak specifically to the Texas Tea case, energy companies in his experience generally receive that level of enforcement only after “a longstanding pattern of blatant disregard for the rules or intentional negligence.”

Who is Texas Tea?

Robert Parker, the man behind Texas Tea, LLC, is a little like “Seldom Seen Smith” in Edward Abbey’s “The Monkeywrench Gang.”

At least six oil-and-gas related companies associated with either Robert Parker or Michele Parker (their relationship, if any, is unknown, although both names appear on some public document filings) have been registered at the same address on West Colfax Avenue in Lakewood.

On a sunny September day, a visit to the address yielded a UPS Store in a strip mall. Inside, the clerk said that they provide the service of a street address and hold mail for clients, no questions asked. Mail from the U.S. Postal Service can be delivered there, and any entity that will not mail to a post office box can send mail to this physical address. When asked if a visitor could find out more about a client with a specific box number, the clerk replied, “If you have a badge you can.”

When told about Texas Tea’s ephemeral corporate addresses, COGCC permit and technical services manager Jane Stanczyk was nonplussed. “It doesn’t matter to us,” she said. “It might matter to the Secretary of State.” “I bet it doesn’t,” countered Lepore.

He’s right. The Colorado Secretary of State’s office said that its role in recording business addresses is purely ministerial, meaning it does not verify them for any purposes.

Kathleen Staks, the Assistant Director of Energy for the state’s Department of Natural Resources, said that the state’s hand-off approach extends beyond the lack of verification of company addresses. “The COGCC and the state have very little information about the financial health of these companies,” Staks said.

Parker could not be reached after repeated attempts to call and email every contact he provided in multiple COGCC filings, including the lawyer who represented him at the last COGCC hearing (but no longer does).

The Independent pieced together the following paper trail. Texas Tea of Colorado, LLC incorporated with the Secretary of State in 1996 under Michelle Parker’s name, and filed a subsequent report with Robert named as manager in 1999. True Grit Oil & Gas Holdings, LLC incorporated in 1998 under Michelle’s name, then changed registered owners to Robert in 1999. Other companies involving one or the other Parker include RPM Indy, LLC; Kenai Oil and Gas, LLC; BH Energy, LLC and R&R Energy Holdings, LLC. In COGCC filings, Texas Tea of Colorado also did business as (DBA) Texas Tea, LLC.

In the 15 years after Texas Tea was slapped with its first formal violation from the COGCC in 1999 for failing to adequately take care of a nonproductive well, the operator was flagged with more than four dozen citations, for problems including leaks, spills, and failures to conduct required mechanical integrity tests and pay increased bonds.

Soon after Lepore took over as the head of the COGCC in 2012, he met with Parker on multiple occasions to negotiate solutions to the outstanding violations and unpaid fines. “He was coming back and telling us, ‘I don’t have the money,’” Lepore said.

That forthright communication boded well for Robert Parker, at least for a while. As recently as a September 15, 2014 meeting, COGCC commissioners granted Texas Tea a suspension of $70,000 in fines owed to the Commission – a fraction of the fines already levied – pending full compliance. According to transcripts from the meeting, Commissioner Andrew Spielman noted that the case clearly described the operator’s poor compliance history, and said he didn’t want to be part of giving a waiver to bad operators. COGCC staff argued that the suspended $70,000 was for more recent violations, and that it should be vacated to provide Texas Tea with an incentive to fully remediate and comply with the order.

Although Speilman voted against leniency in this case, he told The Independent, “We do tend to prioritize on-the-ground cleanups rather than imposing fines on an operator likely to go out of business — because in the worst case Colorado would get neither.”

Indeed, the COGCC readily admits that this kind of leniency is part of its strategy. Lepore said his agency gives operators wide latitude and multiple opportunities to remedy violations discovered by COGCC inspectors – including forgiving fines for noncompliance – in order to encourage cleanup.

“Frankly, we’d rather them clean up the mess and come into compliance than give us any money,” Lepore said.

The approach has not always worked, Lepore acknowledged. Texas Tea’s violations eventually accrued total fines of $323,500, which in April 2016 the COGCC ordered Texas Tea to pay in full within 30 days. That did not happen. The failure to pay led to the Commission’s June shutdown order and hundreds of thousands of dollars in unpaid fines and remediation costs — the very scenario that Spielman feared.

Since gaining greater regulatory authority, the COGCC appears to be taking more and stronger action against violators than it has in the past. Still, forceful COGCC disciplinary actions to date show that they are still the exception, not the rule.

The Commission collected less than half of the $3.3 million in fines it assessed in 2015. As of August 2016, the COGCC had collected only 17 percent of this year’s $3.8 million in fines.

Lepore said the numbers aren’t as bleak as they look: The Commission levied a large portion of those fines to pressure operators into compliance, with little to no expectation of payment.

Old gas lines that corroded and leaked at the site in Thorton mentioned in the story. The current operator at the site dug them up and cleaned up the site. (Photo: Stacy Lambright)

Corporate whack-a-mole

The oil and gas industry is renowned for its shifting and fragmented ecosystem of operators. Giants such as Anandarko and Noble have thousands of wells. Independent operators typically have a few dozen to a few hundred wells. And the smallest companies, known as “stripper well” operators, buy only a handful of declining wells and milk the last hydrocarbons from them. That means smaller companies are often held responsible for cleanup when wells go dry — and they often find themselves unable to pay.

Lepore said that as far as he knows, the COGCC has shut down only three other companies besides Texas Tea since its establishment in 1951. The first time, he said, was in 2012.

The company was called Ranchers Exploration Partners, LLC, whose principal operators, Lepore said, drilled wells around the state, repeatedly violated COGCC rules, shut down their operations and then set up new companies under different names.

“We didn’t really have the mechanism to pierce the corporate veil,” Lepore said. Energy companies routinely set up new companies and subsidiaries, then sell and resell holdings to each other like a game of corporate whack-a-mole. It wasn’t until the third time the same men came back trying to operate that the COGCC finally took action.

The COGCC ultimately refused to issue any more permits to the individuals involved in Ranchers Exploration, no matter what they called their company, and issued a cease and desist order on April 27, 2012, a few months before Lepore became director.

In March of this year, the COGCC shut down an operator called Benchmark Energy, LLC. According to Lepore, Benchmark’s owner, Jerry Nash, bought underperforming wells on the internet, sight unseen, in 2011. By early 2016 he had accumulated more than $1.2 million in fines, mostly related to spills and contaminated soil that came to the COGCC’s attention in 2014 and 2015. Lepore admits that it has historically taken the COGCC years to shut down insubordinate operators, but said Benchmark was a particularly flagrant case.

“Benchmark was a little faster because they were just completely incapable from the beginning of responding to the impacts [they created],” he said.

Nash gave The Independent a more nuanced version of events. He said he bought the wells in an online auction, which included copious amounts of information regarding the wells’ production records and details of technical specs – “more information than you could read in a week”  – and that there was no indication of environmental problems or violations. “I bought that thinking it was in compliance,” Nash said. Now, he admits, “I probably didn’t do enough due diligence” prior to purchase.

Still, Nash said, “I busted my butt for four years” working to clean up the sites and bring them into compliance and production. He said he consulted with COGCC inspectors and engineers to take care of old problems he had inherited, such as 30-year-old tank batteries, as well as new ones such as leaks that Nash said were sometimes caused by vandals stealing equipment and shutting valves.

After “making headway on the cleanup, for sure,” Nash said that he started receiving fines and notices of violation for small things like weeds on his property and a required sign that a cow had knocked over. Suddenly, Nash said, “they wanted it all cleaned up in a week,” and as a small operator, he just couldn’t move fast enough. “They totally destroyed me,” Nash said. “Now who do you think has to clean it up? They do.”

The final example of COGCC invoking its strictest enforcement option was with a company called CM Production, LLC. Lepore said that CM took over the wells of an operator called Lone Pine Gas, Inc. after that company’s owner, Gilmer Mickey, died in a plane crash in 2011. Mickey’s widow, unable to deal with the old wells and the environmental cleanup they required, wanted to sell the company to a willing buyer. Along came John Teff, a young oil and gas man who was so confident in his ability to reinvigorate Lone Pine’s struggling wells that he even took on the hundreds of thousands of dollars of outstanding environmental remediation they needed.

According to Lepore, Teff came to the COGCC table and promised to take care of the cleanup out of revenues from CM’s production. “Guess what happened?” Lepore asked. “He didn’t get the field online.” The COGCC revoked his permit. “He thought, as long as he kept producing a tablespoon of oil every year, we’d just keep looking the other way. That’s not how it works anymore.”

CM Production’s owner Teff refutes Matthew Lepore’s characterization of the story. “If that’s what Matt told you, he’s just wrong,” Teff told The Independent. “He can’t seem to get his story straight.” Teff said that he evaluated the condition of the wells and felt it was economically feasible to perform the cleanup they needed — with the help of the COGCC. “That was my failed assumption,” said Teff. He blames some of the environmental problems he inherited on the COGCC itself, which suggested that Lone Pine excavate a lined pit. Mickey’s widow, he said, tried to comply with the recommendation, but the liner ended up breaking and threatening the water quality of nearby creeks.

“Small operators bear the burden of this, because they try to fix these problems, but it was polluted by the bigger operators,” Teff said. As a smaller operator, he feels he was unreasonably targeted by the COGCC, which he said turned out to be less helpful and more impatient than he expected. “Matt Lepore has taken it upon himself to go after small operators to try to break us to prove some kind of point,” he said. “They have ultimate authority to do what they want to break you.”

To this characterization, Lepore countered: “We have one set of rules that applies to everyone who wants to do business in the state. What motivation would I have to go after small operators, or anyone else?”

Teff said he has no way of paying the $700,000 in fines the Commission has assessed.

The cost of forgiveness

In two of these three examples, as with the case of Texas Tea, the COGCC was left holding the bag for the cleanup. Prior to drilling, all three companies put up bonds to cover the plugging of their wells. But in the cases of Ranchers and CM Production, like with Texas Tea, the bonds were insufficient to pay for the actual cleanup.

Bonding, in effect, works much like the security deposits landlords require of most tenants. The typical deposit isn’t necessarily enough to fix everything if a renter decides to trash the place, but it’s more than enough to cover a hole in the sheetrock wall or a lost key. After a renter moves out, they only receive their deposit back after the landlord ensures that the renter behaved within bounds and left the place as clean as they found it. If the tenant caused more damage than the security deposit covers, then it’s either off to court or the landlord eats the loss.

Using this analogy, state oil and gas bonding rates are similar to a landlord asking a $100 damage deposit from a pledge from John Belushi’s fraternity in Animal House to use as security to rent a dozen LoDo lofts.

If that seems a little harsh, consider Colorado’s bonding formula. State law requires operators that receive drilling permits to provide a financial guarantee to state officials to guard against their desertion of wells. Depending on well depth, bonding costs either $10,000 or $20,000 per well. But operators quickly benefit from buying in bulk: Operators can “blanket bond” multiple wells for much, much less. A blanket bond of $60,000 covers well operators for up to 99 wells, and $100,000 covers operators for more than 100 wells. Considering that wells typically cost $10,000 to $20,000 to plug, with site remediation on top of that, the potential shortfall becomes pretty obvious.

Texas Tea posted a blanket bond of $60,000 for its 29 wells. It later paid an additional bond, requested by the COGCC due to excess inactive wells, of $10,000. But the $71,850 total bond (it appreciated slightly over the years) still falls at least $50,000 short of the costs to plug and abandon the four wells the COGCC has identified as needing prompt attention, and more if remediation costs are added. The balance will come directly from the COGCC, Lepore said.

Beyond the money it will spend cleaning up after troublesome operators like Texas Tea, the COGCC also must keep in mind the more than 35,000 wells in the state that have been “abandoned” after either running dry or being plugged. The state considers plugged wells to pose no environmental or safety risks. But even plugged wells can, and do, leak, though it’s hard to tell how often because nobody is specifically looking for leaks. But when orphan well leaks do get reported, it’s up to the state to pay for cleanup.

Every year, the state must remediate what are known as “orphan wells,” or wells that need cleanup but no longer have a known operator of record. Sometimes operators were forcibly removed from the state or no longer have the means to plug and abandon them, but often these wells are simply so old that nobody knows who is in charge anymore.

The COGCC designates almost a half a million dollars every year to the plugging and remediation of these orphan wells. In 2015, the COGCC spent $495,000 plugging, reclaiming and otherwise cleaning up after 24 of these projects that required attention. Of that, less than $58,000 came from bond money provided by operators. The COGCC continues to identify new orphan wells as they come to their attention.

Site in Thornton, operated by Blue Chip, that developed a “historic leak” in old pipes. Blue Chip is in the process of cleaning up the leak. Historic leaks occur from infrastructure put in by prior owners/operators of these well sites. It’s unknown how pervasive these leaks or spills are. If the wells have been abandoned or ignored, there could be leaks all over. (Photo: Ted Wood/The Story Group)

Falling through the fracks

In Lepore’s COGCC office on Lincoln Street south of the  Statehouse, a map pinpointing the location of Colorado’s 53,724 active wells hangs on one wall. A photo of a Colorado mountain panorama graces another. This is the nerve center of the state’s main regulatory agency for the oil and gas industry, a body whose mission is “the prevention and mitigation of adverse environmental impacts” related to Colorado’s oil and gas natural resources.

COGCC inspectors focus on the mechanical integrity of pipes and facilities, upkeep of grounds around wellheads and other facilities, land reclamation and the documentation of which wells are producing, and how much.

Lepore said that, thanks to the increased authority and budget coming out of the 2014 task force changes, the Commission has more than doubled its enforcement staff.

“We went from basically a hearing officer and an enforcement supervisor,” he said, to having “three enforcement officers, two additional hearing officers on top of that, a managing officer on top of that, and we have more assistant attorney generals,” (a position that Lepore held before joining the COGCC).

He said that the COGCC inspected 30,000 wells last year, and generally can inspect wells at least once every 15 months. “I am very comfortable with the number of enforcement and inspection staff that we have,” he said. “I don’t feel like there are dark things going unseen.”

But sometimes it takes a concerned citizen to register a problem. Stacy Lambright, the mother of two children, ages 12 and 14, noticed unusual activity of workers at a well site located a few hundred feet from a neighborhood park near her home in Thornton. Wondering if the well had anything to do with her kids’ nosebleeds and her husband’s asthma, she went to investigate.

Related: The Making of a Fractivist

Lambright reported the activity to the COGCC in June 2016, and learned that in December 2015, the well site operator had reported a significant “historic flowline leak” from rusting pipes that had corroded completely from the well that had first been drilled in 2004. “Historic,” in this context, effectively means something that happened so long ago that it’s not clear who is responsible.

Nobody had bothered to alert the neighbors.

In an all-too familiar set of circumstances, the site had been taken over by at least two companies since the initial drilling: Synergy Resources Corporation had been the operator of record when the leak was first reported, but sold it to the K.P. Kauffmann company in April 2016. The spill had leaked benzene, toluene and other toxic chemicals in an area that was in the floodplain of the historic 2013 floods and adjacent to wetlands and more than 400 single family units and parks in Lambright’s neighborhood. COGCC reports show that the water table at the site was just seven feet below the surface, with 36 water wells within a half-mile.

Lambright said that the COGCC did respond quickly to her complaint, and set up a remediation plan with the new owner, the K.P. Kauffman Company, which is ongoing. Still, she wonders why it took a citizen complaint for people living nearby to learn about the “historic” leak, and how many other undetected, corroded pipelines and leaking sites there are throughout the state. She also has a host of unanswered questions about the thoroughness of the analysis of the damage done, and the effectiveness of the cleanup in progress. “I don’t have a lot of faith in the minor regulations put on oil and gas operators,” she said.

Lambright has a message for anybody who lives anywhere near a well or facility: “If you see something, or smell something, or hear something, or your gut tells you something’s wrong, file a complaint.”

That’s good advice, said Mike Freeman, a staff attorney with the Denver office of Earthjustice, a national environmental law advocacy organization. Freeman said flat out that the COGCC “doesn’t have enough enforcement resources to inspect the number of wells that are being drilled and are operating in Colorado.”

Companies are obligated to report spills and leaks to the COGCC within 24 hours of discovery, and many companies do. But critics say there is always a danger that the cost of fixing contamination may deter some companies from reporting. Freeman said the lack of threat of meaningful enforcement “reduces the deterrent value for companies to comply voluntarily” reporting problems.

On top of that, COGCC does not regulate air pollution caused by the industry. That falls to the Colorado Department of Public Health and Environment (CDPHE), which, Freeman said, has enforcement shortcomings on par with those of the COGCC.

What you can’t see can still hurt you

The fossil fuel extraction process produces emissions of volatile organic compounds (VOCs), including cancer-causing chemicals like benzene, as well as compounds that contribute to ground-level ozone, also known as smog. Increased ozone has been tied in several peer-reviewed scientific studies to increased incidents of asthma and respiratory illness. In a recent report by the national Clean Air Task Force, Colorado ranked third among states with the highest number of asthma attacks. Still, state Chief Medical Officer Larry Wolk, headof the CDPHE, is on record saying that he “[doesn’t] see anything to be concerned with at this time” with regards to fracking-related air pollution, beyond breathing in the air directly above an active well.  

Toxic air emissions are regulated by the CDPHE, whose enforcement budget, like that of the COGCC, comes primarily from the industry itself. Oil and gas companies have to “pay to pollute,” with a fee of about $150 per ton of hazardous air pollutants they emit. Michael Silverstein, administrator of the state’s Air Quality Control Commission, explained that this amount is set by the state and that emitters pay what is required to conduct proper inspections.

But the CDPHE’s statewide oil and gas enforcement and inspection team consists of only about a dozen people. Emissions data is largely collected and monitored by operators’ self-reporting, and Silverstein said his agency tries to inspect every well about “once every five years.” Asked if he felt this was sufficient, Silverstein demurred. “We have a legislature that says this is an appropriate amount.”

The federal Environmental Protection Agency (EPA) had its own opinion about how well Colorado has been doing on air quality enforcement. After a joint investigation with the CDPHE, the EPA brought a significant enforcement action against Houston-based industry giant Noble Energy last year after Noble was found to be in widespread violation of federal emission control requirements.

A 2015 consent decree settlement between Noble Energy and the EPA and CDPHE states that Noble had underestimated how much its emissions would increase due to rapid growth in Colorado, especially of VOCs from Noble’s storage tanks. According to the U.S. Department of Justice announcement, “VOCs are a key component in the formation of smog or ground-level ozone, a pollutant that irritates the lungs, exacerbates diseases such as asthma and can increase susceptibility to respiratory illnesses.” Or, as Curt Huber, the Colorado director of the American Lung Association put it, “Ozone does to the inside of the lungs what sandpaper does to the skin.”

The investigation and enforcement actions from EPA and CDPHE resulted in a $4.95 million civil penalty as part of the April 2015 settlement with Noble. Of that, $3.475 million went to the federal government and $1.475 million to Colorado. In addition to the penalties, the settlement required Noble to install an estimated $70 million in equipment and air quality monitoring upgrades and to perform other mitigation measures.

Aerial imaging by NASA identified a “hot spot” in the U.S. Southwest, responsible for producing the largest concentration of the greenhouse gas methane seen over the United States. (Photo: NASA, JPL-Caltech, University of Michigan)

Methane hot spot

One enormous problem with this bureaucratic patchwork of inspections and regulators is that several independent scientists have measured substantially more toxic emissions from oil and gas activities than even the EPA and the CDPHE have acknowledged. A new study published in Nature on Oct. 6 by Stefan Schwietzke of the Cooperative Institute for Research on the Environment (CIRES) at the University of Colorado and the National Oceanic and Atmospheric Administration (NOAA) found that fossil fuel development is responsible for between 20 and 25 percent of global methane emissions, which is between 20 to 60 percent higher than other studies had estimated.

In August, Christian Frankenberg of the California Institute of Technology and a team of scientists that included researchers from the University of Colorado and NASA’s Jet Propulsion Laboratory published the source of a mysterious “methane hot spot” in the Four Corners area where Colorado, Utah, New Mexico and Arizona meet (see The Story Group’s video here). The hot spot stems from more than 250 leaks in oil and gas operations emitting vast quantities of methane, a greenhouse gas 28 times more effective than CO2 at trapping heat in the Earth’s atmosphere over a 100-year timespan.

Closer to home, Gabrielle Pétron, an atmospheric chemist who works at NOAA, published a paper in 2014 that found seven times more of the carcinogen benzene than the EPA had estimated being emitted from oil and gas operations during a two-day, airborne sampling on the Front Ranges. In addition, emissions of “ozone precursor” chemicals were double EPA estimates. “These discrepancies are substantial,” said Pétron after the study was released. “Emission estimates or ‘inventories’ are the primary tool that policy makers and regulators use to evaluate air quality and climate impacts of various sources, including oil and gas sources. If they’re off, it’s important to know.”

Perhaps most importantly, these and other scientists’ studies could only be undertaken because curious researchers secured enough federal funding to do the work. No state or federal regulatory agency measures or catalogues these and other emissions with any systematic regularity.

The good news is that in the cases of both the Four Corners “hot spot” and the Noble settlement, once the biggest leaks were identified by scientists or regulators, companies were willing and able to fix them.

Cleaning up in Brighton     

Brighton is one place left cleaning up after Texas Tea.   

The county seat for Adams County, about 25 miles north of Denver, had already been dealing with one of Texas Tea’s abandoned wells when the COGCC shut the company down in June. In December 2015, the city split the approximately $26,000 cost of plugging and abandoning one of Texas Tea’s wells with a private company interested in expanding gravel mining where a well was located. The company “couldn’t wait for the COGCC to act,” said Matthew Sura, an attorney who represented Brighton in these matters.

Texas Tea also operated 17 other wells in and around Brighton. After being apprised of the enforcement action against Texas Tea in June, city officials were concerned that the abandoned wells might leak and leach into the city’s groundwater, according to Sura. Brighton officials asked the COGCC to step in to address the four remaining Texas Tea wells within the city’s “Public Water System” area.

The COGCC agreed to take on the four-well project, with an estimated cost of  $120,000 to plug them. Brighton officials “appreciate that the COGCC prioritized the plugging and abandonment of these Texas Tea wells,” Sura said.

Texas Tea well Rocky Mountain 2, within Brighton’s Public Water System boundary, seized by Adams County in 2012. (Photo: COGCC)

Robbing Peter to pay Paul

The COGCC funds its cleanup programs through its “Oil and Gas Conservation and Environmental Response Fund.” For the fiscal year 2016-17, the fund has an operating budget of $15.5 million. About half of that comes from the severance taxes that Colorado oil and gas operators pay, and the other half comes from a combination of penalties, bonds and the statewide levy on oil and gas production, which is currently set at .07 percent. A very small amount comes from a federal grant, which for 2016-17 totaled $100,000.

Low prices have taken a toll on the current and projected future financial health of the COGCC. During the recent industry downturn, the price of oil plummeted from more than $100 a barrel in April 2015 to less than $30 a barrel in early 2016 (it’s now hovering around $50). Oil and gas operators in Colorado responded by sharply curbing their production. That had major implications for the COGCC’s budget.

The math isn’t complicated: Fewer barrels produced means less money from the levy on production. In response to this decline in funds, the COGCC was granted an additional $3 million from the state severance tax fund, which is less susceptible to volatility in prices.

Both severance taxes and levy money are part of the oil and gas industry’s contribution to state, county, and municipal coffers. The COGCC doesn’t glean money from the state general fund.

But that extra $3 million means less money for the “Tier 2” projects that also rely on levy funds, like clean energy development, soil conservation, wildlife conservation, invasive species control and low-income energy assistance.

The levy has been set at .07 percent of an oil and gas operator’s gross revenues since 2007, though the state is authorized to collect up to .17 percent. Asked why the COGCC didn’t just increase the levy, Lepore laughed. “I guess I can’t answer that question.” Pressed for a more specific answer, he said that the call wasn’t up to him. “The Joint Budget Committee made the decision to use the severance tax fund,” he said. “Raising the levy was always an option.”

The industry’s budget woes could get even worse following an April 2016 Colorado Supreme Court decision in favor of industry giant BP. The ruling allowed BP to deduct certain “transportation, manufacturing and processing costs” from its severance taxes. It includes an even more arcane provision to allow the deduction of the “cost of capital,” or money that BP could have made if it had invested it elsewhere.

The bottom line is that the decision will result in an even bigger shortfall  in the budget that pays for the COGCC’s enforcement efforts (and many other non-COGCC line items). Smaller severance tax revenue also reduces the amount of money available to defray the associated costs of energy development, such as local road maintenance and cleanup costs from abandoned or failed wells, which often fall on local governments.

Many analysts have already noted that Colorado has among the lowest severance taxes in the country, partly because companies can deduct the cost of their property taxes from the severance tax calculations they typically pay to counties and municipalities where they operate. This new Supreme Court decision will reduce the state’s income even further, leaving even fewer resources for the state to monitor oil and gas operations and to clean up when companies go afoul.

As for Texas Tea? “They owe us a ton of money,” said Lepore. “And we’re going to spend even more money fixing their problems.”

But despite the Commission’s claims on Texas Tea’s assets, recouping any money from the operator seems unlikely. Lepore says that trying to seize and sell the assets is hard to do in practice — there’s no law granting the state of Colorado priority over other potential lienholders, for example — and the COGCC isn’t really in the business of selling scrap. Nor, Lepore says, is it equipped to operate wells on its own.

Instead, he says, the COGCC would prefer to temporarily turn off Texas Tea’s remaining wells, get them back into compliance, and try to find yet another willing buyer. If history is to be believed, it will probably be another small operator — maybe even someone from the internet.

The retrial of Clarence Moses-EL for a 1987 sex assault starts Nov. 7th in Denver District Court.

Moses-EL, 60, served 28 years in prison before a judge threw out his convictions last December. Newly discovered evidence, the judge ruled, was pertinent enough “to allow a jury to probably return a verdict of acquittal in favor of the Defendant.”

The new evidence includes the statements of a man who testified that he had rough consensual sex with the victim and beat her up at the exact same time and place she said she was attacked. That man was the first person the victim named in her statement to police, who never investigated him as a suspect. He’s also a convicted rapist.

You’d think that would be enough for Denver District Attorney Mitch Morrissey to drop the case against Moses-EL, who has proclaimed his innocence since the day he was arrested.

But it isn’t.

Nearing the end of his three terms in office, Morrissey is risking his reputation by re-prosecuting an apparently innocent man for an attack to which a known sex offender has confessed. Morrissey is gambling his legacy as a pioneer in DNA evidence on a case in which city officials trashed all the physical evidence before it could be tested. It’s a long shot for the DA’s office, considering its only evidence against Moses-EL is that the victim claimed his identity came to her in a dream. That’s right. A dream.

Nothing about this case – and Morrissey’s decision to keep pursuing it – has ever made sense. Not to Moses-EL. Not to his defense lawyers. Not to me.

I have covered the surreal twists and turns of Moses-EL’s conviction for 10 years. Know right now that I’ve come to believe in his innocence. Know, too, that for reasons I cannot understand, Morrissey – who has declined an interview for this column – has been hell-bent on pursuing this case, and has attacked my credibility and twisted facts to the media and to lawmakers.

The new trial is scheduled to start the day before the most attention-grabbing election in recent U.S. history. That means the story behind The People v. Clarence Moses-EL is likely to be drowned out by other news. So hear me out about the case Morrissey keeps pursuing in our names.

In a reporting career that’s almost as long as Moses-EL’s struggle to prove his innocence, I’ve never pressed this hard on my keyboard. I’ve never felt more of a call to make a story heard.

A dream

It is an August evening in 1987. Some friends gather to drink in a housing project in Denver’s Five Points neighborhood.

One of the women later says in court that she drinks “probably five or six” Schlitz Malt Liquor Bulls before heading home a few doors down where her young children are sleeping. She passes out on her couch. Soon after, a man enters their home, penetrates her vaginally and anally, and then beats her so hard that she permanently loses use of one eye. The intruder also rifles through her wallet before he leaves.

Police arrive and ask who attacked her. The victim – whose identity The Independent is protecting – tells them she didn’t get a good look because the lights were out, she has terrible eyesight and the assailant blindfolded her. Then she names as possible assailants three of the men with whom she had been drinking earlier that night. “LC, Earl, Darnell,” she says. The police report and transcripts from Moses-EL’s preliminary hearing and trial show she names the same three men in the same order to her sister, as well.

A day and a half later at the hospital, the victim changes her story by naming Moses-EL. She doesn’t know him, but they’re neighbors and she knows his wife, with whom she reportedly had been fighting earlier that week. Moses-EL’s identity, she tells police, came to her in a dream. The victim apparently puts a lot of stock in her dreams. Notes from the hospital, where she undergoes an evaluation to assess her trauma, indicate she says she “has had premonitions/visions/daydreams on a # of occasions that have come true.”

*  *  *

At trial, the victim’s dream statement was the only evidence presented that linked Moses-EL to her rape. His defense attorney – whom Moses-EL later said was incompetent – didn’t have the blood evidence fully analyzed nor ask to have the physical evidence DNA tested. He insisted that Moses-EL not take the witness stand. His strategy relied largely on witnesses testifying that Moses-EL was at home with his son and brother-in-law at the time of the attack.

Prosecutors poked holes in that defense, pointing out inconsistencies in alibi witnesses’ testimonies. And that’s how the  jury came to convict Moses-EL, handing down a 48-year sentence for first-degree sex assault, second degree assault and second-degree burglary.

“A dream,” Moses-EL told me from prison in 2006, when I first reported his story for The Denver Post. “I’m in here because of a dream.”

Dawn of the DNA era

Where were you during the O.J. Simpson trial?

Moses-EL was watching from the Crowley County Correctional Facility in 1995. While his fellow prisoners grumbled about the racism that tainted the police investigation, he was struck by something else: defense attorney Barry Scheck’s work with DNA evidence, which then was a frontier in criminal law.

Moses-EL was one of scores of prisoners who wrote Scheck in New York seeking help with their cases. He was elated when Scheck agreed. Scheck said he’d handle the post-conviction appeal for free if Moses-EL paid $1,000 to test the physical evidence for DNA.

Genetic fingerprinting wasn’t widely available when Moses-EL was arrested eight years earlier. This was his chance, finally, to prove he wasn’t the assailant.

From prison, he managed to raise the $1,000, mostly from fellow inmates who had heard him talk about his innocence month after month, year after year. Anyone familiar with how prisons work knows it’s no small task to scrape together that much money. For one thing, inmates don’t part lightly with the scant amount of cash available to them. For another, if a DNA test that fellow prisoners paid for out of their good will came back pointing to Moses-EL, it wasn’t only his appeal that was in jeopardy, but also his safety.

“The fact that Clarence asked for that money in the first place has always, to me, shown he’s innocent,” Tim Masters, the first wrongfully convicted Coloradan to prove his innocence with DNA testing, told me earlier this year. “If he’s not innocent, there’s no way in the world he was going to make that calculation, with the whole prison looking. No way. That’d be insane.”

“DO NOT DESTROY”

The most reliable proof of Moses-EL’s guilt or innocence likely was written in genetic code on the sex assault kit, two stained bed sheets, a pair of men’s briefs, and a pink and black outfit worn by the victim the night of the attack. He won a court order in November 1995 to test those items, which Denver police packed in a box they labeled in Magic Marker with large bold letters. “DO NOT DESTROY.”

About a month later, before the box could be sent to the DNA lab, someone in the police department’s evidence room ignored the label and threw the box in a dumpster.

James Huff, the lead detective in the case, had signed a form authorizing the box to be destroyed. Huff later said the Denver’s District Attorney’s office hadn’t told him that Moses-EL’s appeal was pending or that the judge had ordered the DNA evidence be made available for testing.

Tossing out the box clearly defied the judge’s order, city policy, and common sense. Yet no one in the police department or DA’s office was reprimanded.

Moses-EL remembers the day he learned police had trashed the physical evidence. He said it felt like being “given cement shoes and thrown in the water just to sink.”

Without the ability to prove his innocence through DNA analysis, he asked for a new trial. The judge sided with the District Attorney’s office, which argued that his case didn’t meet the legal standard set by the U.S. Supreme Court for criminal defendants seeking legal remedies when government agencies mishandle or destroy evidence. Defendants are required to prove authorities acted out of malice or “bad faith.”

That legal precedent pre-dated genetic fingerprinting, but still stands today, even now that DNA testing is widely available and capable of revealing scientifically irrefutable truths in criminal investigations. Legal experts say “bad faith” is almost always impossible to prove. That leaves defendants like Moses-EL with no recourse when key evidence goes missing or is scrapped presumably out of negligence or human error.

In 2006, during one of several interviews I had with Moses-EL in prison, he was still chafed by authorities’ refusal to give him a new trial.

“They broke their own rules and threw out the only key to my freedom,” he told me. “If that ain’t bad faith, man, I don’t know what is.”

“I’ll be right back”

Moses-EL was raised in West Baltimore by a single mom who had eight kids. As the eldest son, he felt compelled to quit high school and help her with the bills. He did that by stealing – petty stuff at first, but then pricier items like jewelry. He served four stints in prison for larceny in Maryland before moving to Colorado in 1986.

“I was a thief,” he admits. “But that didn’t make me no rapist. That didn’t justify giving me 48 years for something I didn’t do.”

Like a watched pot, time passes slowly in prison. Moses-EL kept his frustration from boiling over by reading everything he could. He read religious scripture, which helped solidify his belief in an Islamic-based faith known as Moorish Science. He read philosophy treatises, law books, books on chess, historical novels and biographies. He found purpose in those texts and wisdom in their words – wisdom he shared with young prisoners who came to him for advice.

At Kit Carson Correctional Facility in Burlington, the prison chaplain loaned his office to Moses-EL to counsel fellow prisoners about quitting drugs and gangs. Moses-EL urged them not to let their hearts sour. That’s what he said he told himself every day, trying to stave off bitterness.

I first met Moses-EL in that office. The chaplain sat and listened for what I recall was our nearly three-hour interview.

Moses-EL remembered riding his bike with his then 3-year-old son, Anthony, when police stopped and arrested him in 1987. He recalled telling Anthony not to worry and assuring him, “I’ll be right back.” He talked about Anthony growing up without his dad and visiting him less frequently, and then not at all as he realized his “pops” wasn’t coming back any time soon. He spoke of the helplessness he felt at times, and the suspicion that the world was conspiring against him. He described his faith in Allah and in his mom, and about her unyielding belief in his innocence.

“She told me, ‘Son never admit to something you did not do even if it costs you your life or you staying in prison.’”

Moses-EL was more than 18 years into his sentence when I met him. He spoke with disbelief and defiance about the 29 years in prison still ahead of him at that time. I asked what he’d say to Mitch Morrissey if he were there in front of him.

“I’m an innocent man,” he said, looking directly into our video camera. “Various people has been named. The evidence has been destroyed. There’s nothing that links me to this crime other than the victim’s statement. Was the victim’s testimony credible? These are the things that I want you to think about when you go to bed at night, Mr. Morrissey.

“I’m gonna be like a mosquito, a gnat. I’m gonna bug you. I’m gonna bug society. I’m going to bug the courts. I’m gonna bug the governor. I’m gonna bug the president if I have to. What does it take for an innocent man to get out?”

LC Jackson

Norm Early was Denver’s district attorney at the time of Moses-EL’s trial in 1988, and Morrissey one of the prosecutors in the office. Though Morrissey didn’t handle the case, he has said he was assigned to the same courtroom and worked closely with the prosecutor who did.  

When Moses-EL’s evidence was destroyed in 1995, Bill Ritter was the elected district attorney and Morrissey one of Ritter’s deputies. Ritter went on to become governor and refused to grant leniency on Moses-EL’s sentence.

Morrissey became DA in January 2005, having been elected largely on his expertise using DNA evidence to prosecute crimes. The crime solving tool, he promised voters, would help keep people safe.

A year into his first term, his office touted its role solving the 1992 cold case rapes at knifepoint of a 9-year-old girl and her mother. The DNA matched a man named LC Jackson, the same “LC” first named by the victim after the attack for which Moses-EL was convicted.

LC Jackson

The 1992 assault took place about a mile and a half from the scene of the Moses-EL case, and the two incidents, as police reports and court testimony show, shared striking similarities.

Jackson knew the adult victims in both attacks and was aware that they were living with their children and without men in their homes. The victim in the Moses-EL case lived two doors from Jackson’s then-girlfriend, with whom he was staying; the victims in the 1992 case lived in the same housing complex as Jackson’s girlfriend at the time. He was familiar with both homes’ floor plans.

Both attacks happened in the middle of the night, at about 2:30 a.m. Jackson entered the home in the 1992 case through a window, just as the perpetrator is believed to have entered the scene of the Moses-EL case.

Jackson raped the 9-year-old victim in 1992 while her two-year-old sibling was in the room. The victim in the Moses-EL case was assaulted with her infant and toddler in the room. Jackson used a pillowcase to cover the face of his adult victim in the 1992 case. The perpetrator in the Moses-EL case used a “do-rag” to cover the victim’s face. Jackson applied pressure to the necks of his victims in the 1992 rapes. The perpetrator in Moses-EL’s case choked and squeezed the victim’s neck during the assault. Victims in both incidents sustained injuries to their heads.

When Morrissey’s office nailed Jackson for the 1992 rapes in 2006, Trip DeMuth, Moses-EL’s lawyer at the time, pointed out that police had never questioned Jackson as a suspect in the Moses-EL case. I have never been able to glean an answer from police about why – nor an answer from Moses-EL’s trial attorney about why he didn’t bring the holes in the police investigation to the jury’s attention.

DeMuth also raised other red flags with Morrissey’s office, including comments made by James Huff, the lead police detective in Moses-EL’s case. In a sworn statement from 2005 Huff said he always had reservations about Moses-EL’s involvement and wondered if a personal vendetta led the victim to frame him. A week before the attack, she had been fighting with Moses-EL’s wife, Stephanie Burke, over a scuffle between their two young sons. The victim told police she “had problems with Stephanie Burke before and was always being threatened by her,” according to a police report. As Burke tells it, the victim publicly vowed that she was going to “get back” at her.

“Due to the fighting and the bickering, the jealousy, the pettiness, of all that, I always had doubts about this. I could never prove it either way,” Huff said in the affidavit. “This is one of those cases where I really wish there was DNA.”

Those factors seemed enough to at least question Jackson about his possible involvement in the Moses-EL case once the DNA implicated him for the 1992 case. But 19 years into Moses-EL’s prison sentence, Morrissey refused to reopen the investigation, asserting that the victim had never named Jackson as her assailant.

“What appears is that Mr. Jackson was somebody that the victim knew. …There’s nothing to indicate that he was involved with this in any other way,” Morrissey told me in 2007. “She never indicated that he raped her.”

That assertion, which he made several times, was wrong. The police report and transcripts of Moses-EL’s preliminary hearing and trial clearly show that when police and her sister asked who had attacked her, she answered, “LC, Earl, Darnell.” Morrissey’s office had full access to those documents, which I also photocopied and handed him during that same interview. But written proof that the victim did, in fact, first name Jackson as a possible assailant did nothing to persuade the DA to correct the record or change his mind about the case.

If police and prosecutors had done their jobs in 1987 and questioned Jackson, he may have been charged, prosecuted and yanked off the streets. That’s a painful “what-if” for the adult victim in the 1992 attack.

“The first guy named and they don’t investigate him? I don’t get that,” she told me in 2007.

Calling the mishandling of DNA evidence in Moses-EL’s case “outrageous,” she added, “I think somebody should pay for the destruction of evidence and the guy should be set free because of it.”

In our 2007 interview, Morrissey defended the discarding of the evidence.

“It got destroyed through the normal course of the destruction-of-evidence policies of the Denver Police Department,” he told me.

I pointed out that the Denver Police Department’s operational manual at the time specifically stated that police must “honor all valid court orders” regarding evidence, and that “it is the responsibility of the office or investigator” being asked to sign a destruction order to “determine the status of the case…”

I also pointed out records of the city’s probe into the destruction incident showing Moses-EL’s evidence was, in fact, trashed in defiance of Denver policy.

“Defied?” Morrissey asked me. “How are you defining ‘defy’?”

After nailing Jackson on the cold case rape, Morrissey wouldn’t agree to re-investigate Moses-EL’s case or to grant him a new trial.

“There’s nothing to support any reason to reopen the case,” he told me. “The defendant has had his day in court.”

I asked if he could empathize with Moses-EL or put himself in his shoes.

“No,” Morrissey said. “I’ve never raped anybody.”

Denver DA Mitch Morrissey

Trashing the truth

Moses-EL’s story led a 2007 Denver Post investigative series that I co-reported and wrote with my colleague at the paper, Miles Moffeit. Our year-long project, “Trashing the Truth,” was about the loss and destruction of DNA evidence.

At the time, Morrissey had emerged as a national leader in using genetic fingerprinting to prosecute crimes and solve cold cases. He had testified before Congress and snagged millions of tax dollars for a DNA lab and lab work in Denver. Given the importance he puts on DNA evidence, his  “tough luck” response to evidence destruction – especially in a possible innocence case – is especially puzzling. Every wrongful conviction is, after all, a cold case.

In 2008, when Columbia University named “Trashing the Truth” one of three finalists for that year’s Pulitzer Prize for investigative journalism, Morrissey contacted the Pulitzer Committee to say my reporting about the Moses-EL case was inaccurate. He went on to gun for my job at the paper, telling anyone who’d listen – including my bosses – that the story was wrong. At least one member of his office even falsely spread word that I was romantically involved with Moses-EL.

In 2008, then state Senate president Ken Gordon, a former public defender, read about Moses-EL’s case and proposed a bill to address precisely his situation. The law would have required courts to grant new trials in rare cases in which law enforcement agencies destroy biological evidence in defiance of court orders to test it.

Morrissey set out to kill the bill, arguing that granting new trials would needlessly negate jury verdicts. In trying to persuade the Senate Judiciary Committee to reject the measure in March 2008, he claimed in testimony he gave to that committee that the victim identified Moses-EL as her rapist immediately after her attack. That was untrue, as is clear from, among other documents, this part of the trial transcript when the reporting police officer was testifying.

Defense attorney: “When you took the offense report, Officer, did (the victim) say anything about Clarence Moses?”

Officer: “No.”

After the Senate approved the bill, Morrissey told the House Judiciary Committee in April 2008 that Moses-EL’s efforts to prove his innocence were re-traumatizing the victim. Dubbing Gordon’s measure the “Re-victimization Bill of 2008,” he defended his record and that of his office, asserting that the case had been misrepresented by the news media, the Senate and “throughout the halls of this building.”

The bill died, leaving Moses-EL still stuck in prison.

I saw Gordon two or three times before he had a fatal heart attack in 2013. Each time, he expressed frustration about not being able to right the wrongs he felt had been done to Moses-EL, who still had more than a quarter century left in his prison sentence. The last time I ran into him, Gordon asked me to tell Moses-EL he was sorry he couldn’t have done more to help.

What was done in the dark

In the spring of 2012, a letter arrived for Moses-EL in prison. It was from LC Jackson, who by then was serving a life sentence for the 1992 cold case Morrissey’s office had solved in 2006. Moses-EL and Jackson didn’t know each other, having met only once in passing years earlier.

“I really don’t know what to say to you. But let’s start by bringing what was done in the dark into the light. I have a lot on my heart,” Jackson wrote. “I don’t know who (sic) working on this, but have them come up and see me. It’s time. I’ll be waiting.”

Moses-EL’s lawyer went to see Jackson, and he confessed.

The defense filed a motion for a court hearing in which Jackson could tell his side of the story. But, in several court filings and hearings, the DA’s office fought to keep Jackson from taking the stand. At first, it argued – with no evidence – that through prison connections Moses-EL tried to coerce or bribe Jackson into confessing. Later, the DA argued that Jackson’s statements to Moses-EL’s lawyer weren’t valid because he didn’t have his lawyer present. 

The fight dragged on as two judges were replaced in the courtroom to which the appeal was assigned. Finally, a third judge was assigned to the case. Kandace Gerdes was fairly new on the bench, having been appointed straight from many years working as a prosecutor in Morrissey’s office. She granted approval for the hearing process to move forward.

In the summer of 2015, more than three years after Jackson sent Moses-El the letter, Jackson took the stand. Under oath, he said he had been with the victim in the same place and at the same time of the attack for which Moses-EL was convicted. He said he had rough, consensual sex with her that night in a position he found “nasty.” And he admitted that he got angry and lashed out in what he described as a “Dr.-Jekyll-and-Mr.-Hyde” burst of rage.

Having let Moses-EL serve so much time for his crime, he said, had long weighed on his conscience. He told the judge that his mind went “back and forth and back and forth and back and forth” about whether to come forward. “It was hard for me to stand up,” he said. “I guess I was being selfish.”

Jackson, 50, suffers from health problems. Confessing, he explained, was his way to “the kingdom of heaven.”

“I want to just clear up a lot of things in my life,” he testified. “I just think this is the way I can relieve myself and not carry all this with me.”

Also at that hearing, Jackson’s girlfriend from 1987 – who lived two doors down from the victim – testified that Jackson had left her house at the time of the attack. And a University of Denver forensic scientist testified that, based on data analysis of evidence collected at the scene, it’s “highly likely” that someone with Jackson’s blood type was the assailant, and “highly unlikely” that it was someone with Moses-EL’s blood type.

As a result of their testimonies, Judge Gerdes vacated Moses-EL’s convictions and set him free on bond in December.

The victim has declined comment about the case since at least 2006, describing any attempt to interview her as harassment. That’s why I have not tried to reach her to ask her thoughts about Moses-EL’s release and his upcoming retrial. The DA’s office won’t say if she’ll be testifying.

Moses-EL, for his part, has tried to move forward. He has worked two jobs at an inventory service in Westminster and at a Wendy’s in Commerce City. He has reunited with his son and daughter, who were 3 when he was arrested. He has come to know his 12 grandchildren whom he had been too proud to let see him behind bars. He’s working toward building a Moorish Science Temple in Colorado. He’s relishing fresh air and mobility. And he’s acclimating to freedom in the 21st Century – Internet, iphone and all.

“Gotta stay plugged in, connected,” he said about the earbuds always around his neck and the smart phone constantly ringing and beeping and buzzing. “I have lots of time to make up for.”

Morrissey’s last stand

Morrissey could have let Moses-EL move on to rebuild his life after the judge lifted his convictions last winter. But he didn’t.

Instead, four days after the judge’s ruling, the DA’s office issued a statement. It read, in part: “Those who now argue that he was convicted based solely on a dream are either unaware of the complete facts or disregard them. The victim was severely beaten, suffered multiple facial fractures, and was in a coma [emphasis mine]. It took some time after the attack before the victim was able to give her statement.”

That assertion not only contradicted Morrissey’s earlier claim that the victim had named Moses-EL immediately after being assaulted, but the victim’s medical records, presented as evidence in the court file, contain no mention of her being in a coma after being brutalized. The victim herself testified at trial that she went to her sister’s house after her attack and before she was taken to the hospital. The emergency room report shows she was “logical/coherent”, “easy to engage, verbal, cooperative.” The ER doctor and the victim’s sister both testified at trial that she was conscious.

In December, The Denver Post editorial page urged Morrissey to drop Moses-EL’s case.

“Let him enjoy the freedom that was taken from him decades ago,” the editorial read. “The case is weak with little more evidence than a dream.”

“He needs to let this go,” added state Rep. Beth McCann, the Democrat running to replace Morrissey once he’s term-limited out of office in January. If elected, she has said she’d drop the charges. McCann’s opponent, Helen Morgan, who’s running for the seat as an independent, hasn’t commented on how she’d handle the case because she works in Morrissey’s office. There’s an “ethical prohibition against me talking about it in public,” she said at a Colorado Independent debate in September.

Defense lawyers sought to disqualify the DA’s office and appoint a special prosecutor. They argued Morrissey’s office has “thwarted” Moses-EL’s “attempts to exonerate himself at every turn.”

“Rather than admitting that it prosecuted and imprisoned an innocent man, the Denver District Attorney’s Office instead has engaged in a cover-up campaign by misstating the facts of this case to the legislature and the media,” read a motion filed on Moses-EL’s behalf. “The District Attorney’s factual misstatements have been repeatedly reported by the media and are highly inappropriate.”

Moses-EL’s lawyers also argued that Morrissey’s office should be disqualified because, after the DNA evidence pointed to Jackson in the 1992 rapes, it withheld information about similarities to his case. Both the U.S. and Colorado constitutions prohibit prosecutors from withholding evidence that’s favorable to a person accused of a crime, even after a conviction.

“…The Denver District Attorney failed to disclose this information to Mr. Moses-EL for nearly a decade…,” read the motion to disqualify Morrissey. “The Denver District Attorney’s office cannot be trusted to fulfill its ongoing duties to disclose favorable evidence to Mr. Moses-EL in connection with the upcoming new trial.”

Bonnie Benedetti, the chief deputy district attorney Morrissey assigned to preserve Moses-EL’s conviction, countered that there was nothing to disclose because “there is no ‘signature’ evidence that would support that Mr. Jackson was involved in the rape” for which Moses-EL served 28 years.

In a press release, Morrissey’s office said there’s no new evidence in the case because Jackson’s confession “was not true and was retracted” in a private meeting with its staff before the 2015 hearing. “In his statement to the District Attorney’s investigator, (Jackson) admitted he had lied and made the confession up,” it reads.

But at hearing, Jackson testified before Judge Gerdes that the investigator sent to interview him by the district attorney’s office had intimidated him into changing his story. The investigator, Jackson said, prefaced the interview by saying he had previously worked for the Denver Police Department and had arrested Jackson on a burglary case for which Jackson was convicted and served eight years in prison.

Benedetti has suggested that, since the August 2015 hearing, Jackson has again recanted his confession. Given those vacillations, it’s unclear how he’ll testify at the retrial.

Moses-EL’s lawyers asked Judge Gerdes to postpone the trial until the winner of the Nov. 8th election takes office in January. Gerdes denied that motion on grounds that the trial date already has been pushed back once and that juror summonses already had been issued. She also twice refused to appoint a special prosecutor.

Defense lawyers filed an emergency petition with the Colorado Supreme Court asking for a special prosecutor. The request alleged years of misconduct by Morrissey, saying he had a personal interest in his office’s prosecution of the case. Benedetti has countered in court that, “To continually say that this is somehow a personal vendetta of Mitch Morrissey is simply without basis.” The court denied the emergency petition earlier this month without comment.

Jury selection for the two-week trial is scheduled to start on Nov. 4. Morrissey’s office asked that jurors not be allowed to hear that authorities trashed all the physical evidence nor that Moses-EL already spent nearly three decades in prison on the case. Those facts — both of which cast the DA’s office in unfavorable light — could cause jurors to “unfairly sympathize” with Moses-EL, Benedetti argued. Judge Gerdes agreed, saying, “Sympathy has no place in a criminal trial.”

“What they gonna think?” Moses-EL asked me a few weeks ago about the jurors in his retrial. “They gonna think I been hiding out all this time, 28 years hiding out somewhere, instead of the reality of the thing – that I done spent 28 years locked up for this already.”

Fairness

Over the past 10 years, I’ve read volumes of legal documents and court transcripts, conducted dozens of interviews and written umpteen stories about Moses-EL’s case. Never has he strayed from the details he laid out in our first interview in the prison chaplain’s office. Never has he hesitated when I asked a tough question. And never has anyone involved in that ugly August night in 1987 assured me that this case is even remotely fair.

I’ve come to admire Moses-EL’s strength and dignity throughout his ordeal. I’ve come to count him as a friend. I admit I’m no longer objective about this case, but I assert that I am factually right.

It would be unfair to blame Morrissey for the shoddy police work in 1987. It would be unfair to hold him personally responsible for the department’s failure to interview LC Jackson, letting him ­walk free then. It also would be unfair to fault Morrissey directly for letting all the truth-telling DNA evidence get tossed in a dumpster.

Yet, in straining to justify those and other mistakes, Morrissey acts in bad faith, continuing to trash the truth of this case.

The district attorney had more than enough evidence in 2006 to re-examine Moses-EL’s convictions. Now, by continuing to hang charges over Moses-EL’s head, he’s stripping even more time from a man who’s already lost nearly half a lifetime to this case while the man who admits he attacked the victim goes untried and unpunished. That is the greatest unfairness of them all.

“DO NOT DESTROY” is a warning about more than just boxes of criminal evidence. It also applies to the people over whom prosecutors hold enormous power. It’s a caution about the lives they can wreck when they take that power and stubbornly, persistently misuse it.

Photo of Clarence Moses-EL by Marie-Dominique Verdier.

LC Jackson photo from Colorado Department of Corrections. Mitch Morrissey photo from Denver District Attorney’s website.

WALSENBURG, CO — On a recent Wednesday in the back of the Alpine Rose Cafe, an old-school diner with cracked green vinyl booths in this rural town in Spanish Peaks country, a mail-in ballot belonging to owner Phyllis Cordova sat unopened on a table surrounded by three men talking politics.

None of them had heard much about a local race for the state Senate in this district. But its voters could decide which party controls Colorado’s legislature next year. The race pits incumbent Republican rancher Larry Crowder of Alamosa against James Casias, the Democratic sheriff of Trinidad.

“Some of [the candidates] I hear about, but I haven’t heard about them,” Cordova said as the men nodded along.

And that’s kind of a shame.

The presidential race has engulfed much of the media coverage and discussion among voters, crowding out commentary about down-ballot candidates for Colorado’s state House and Senate. But what happens this year in Colorado’s legislative elections might have a greater impact on the life of an average Coloradan than who wins a U.S. Senate seat, or, arguably even the presidency.

In Colorado, Democrats control the state House by three seats and Republicans control the Senate by one. If Democrats hang on to the House and take that one Senate seat, the party captures the Capitol and the balance of power flips. That could impact everything from environmental and healthcare policies to the state budget.

“As they say, elections have consequences,” says Rob Witwer, a former Colorado GOP lawmaker who co-wrote an oft-cited book called The Blueprint about how Democrats gained control of the Colorado legislature in 2004 with the financial backing of four wealthy progressive activists.

“When you flip a chamber in the state legislature … and that results in full Democratic control or full Republican control of the legislature, then you’re in a position to enact a lot of policy,” Witwer says.

One of the races that could usher in that change is here in this sprawling southeastern district. It stretches more than 300 miles across 16 counties from Wolf Creek Pass to the Kansas border— an area that covers nearly one-fourth of the state of Colorado. The district is so large that the two candidates running for state Senate live three hours apart. The town of Walsenburg sits almost smack in the middle of their respective hometowns.

But in the Walsenburg diner, dressed in a faded Carhart T-shirt and sporting a gray mustache and glasses, retiree Warren Menges said he doesn’t see his life changing much whether Democrats control the statehouse or it remains divided between the two parties.

“I’m retired. I’m a Vietnam veteran so I have VA disability, so I have insurance, this that and the other,” he said. “I’m not really affected.”

Next to him, his bearded friend George Walker leaned back in his chair, similarly unconcerned about a potential change in political direction for the state.

“Not unless they want to take both of my guns away from me,” he said to chuckles all around.

That midday October exchange in the back of the Alpine Rose Cafe encompasses much more about what’s at stake in the year’s legislative races across Colorado than the two men might realize.

Indeed, health care and firearms are two major wedge issues almost certain to be resurrected in the coming session.

If Democrats take control, they likely will be able to pass a key budget strategy of Gov. John Hickenlooper and other Democrats to reclassify a nearly billion-dollar hospital program called the hospital provider fee to free up more money in the state budget for transportation and education. If the Democrats had enjoyed a majority in the Senate last session, they would have gotten it done. But the Republican-controlled Senate blocked that plan.

As for guns, if Republicans stay in power in the Senate they are likely to try again to repeal a package of gun safety laws that, among other things, imposed bullet limits on firearms. The laws were passed in 2013 when Democrats controlled the legislature, and the move is an often-used talking point in a firearms friendly state when talk of another Democratic takeover seems possible. Elect Democrats and they’ll go crazy on your guns.

That’s the view from the Front Range, but in rural Colorado, and particularly in this Senate district, that kind of simple partisan analysis doesn’t always apply.

Consider Crowder, a mustachioed, cigarette-smoking, straight-talking former telephone contractor and cattle farmer from the San Luis Valley. First elected to the state Senate in 2012, he was the only Republican in the Colorado General Assembly to vote in favor of expanding Medicaid under Obamacare the following year. And during the latest session, Crowder was, again, the only Republican in the GOP-controlled Senate to buck his party and publicly say he would vote in favor of re-classifying the hospital provider fee, taking on the Koch brothers in the process. Crowder drew criticism from the right as he vocally pushed for the plan in committee hearings, saying he cared more about the people of his district than he did about party politics. He worried hospitals serving his constituents could close.  

Out on the campaign trail— as much as there is one across this vast landscape— Crowder doesn’t get into the larger picture with voters about what’s at stake at the Capitol in his race.

“You gotta realize when they talk about the balance of power, it’s more in the inner circle of Denver area,” he says. “We all expect in rural Colorado whoever is representing us will represent our values and our issues. So it doesn’t matter in large part … what you perceive as that balance of power.”

In Crowder’s district, which includes the San Luis Valley, the median household income can swing from $60,000 in Cokedale to $21,000 in Antonito. Districtwide, it’s about $38,000— about $15,000 less than Colorado as a whole. Hispanics represent a whopping 35.8 percent of the population — about 15 percent higher than in the state as a whole — in a place where healthcare, retail, education and agriculture make up the top industries.

Crowder focuses on what he’s been able to do in recent years for the district, such as helping revitalize rural downtowns, expanding a cemetery, helping establish a rural homeless program and keeping an Amtrak line running in the area. As a veteran, he says he cannot get past Benghazi, so he will probably vote for Republican presidential nominee Donald Trump even though he believes Trump is “somewhat off the wall.”

Four years ago, when Barack Obama led the top of the ticket, Crowder was one of four Republicans running for the state Senate in Colorado and the only one of them who won.

“Will [Trump] affect this race? Of course it will,” he says. “How much I don’t know.”

Asked what he thinks the biggest contrasts are between him and his opponent Casias this year, he says, “To be honest with you, I cannot tell you.” He doesn’t know too much about Casias, he says.  

Casias the sheriff is a trim, former coal miner, construction worker and cop with thinning gray hair, known by the nickname “Blue.” In 2013 he was one of only a handful of Democratic sheriffs to sign onto a lawsuit attacking the new gun-safety laws that were passed by Colorado Democrats. He said he did it to uphold the Second Amendment of the Constitution. If Republicans in the Senate were to try to repeal those gun laws, they could count on his vote if he were elected, he told The Colorado Independent.

“That law does not really take care of the killings that are going on,” says the Democrat. “I’m one that believes that guns aren’t the ones that kill people.”

The sheriff says his focus is on healthcare, education and jobs. He wants to expand broadband in rural areas, as well as wind and solar farms and the jobs that come with them. He says he’ll fight for the equal rights of women and for collective bargaining.

If Casias wins, “It’ll mean a lot for the Democratic Party,” he acknowledges. “However, though, parties don’t elect me, people elect me.”

He says there will always be issues Democrats and Republicans can agree on, and things they cannot.

“But if it’s something that’s going to benefit Senate District 35, which is southern Colorado and the San Luis Valley, those are the ones that put me in that office if I get elected,” he says. “I’m there for them, I’m not there for myself or anybody else.”

The state Democratic Party is helping Casias because they see it as one of the handful of important legislative races this year, he says, but the balance of power at the Capitol in Denver is not something on the minds of those he meets as he has campaigned.    

“Hasn’t come up once,” he says.

All politics is local

The Crowder-Casias matchup in rural southeastern Colorado is just one race that could determine the partisan makeup of the General Assembly.

But there are about a half dozen other statewide elections that could be key to what the legislature looks like when lawmakers return to Denver in January.

Those races are taking place from the suburban battlegrounds of Arapahoe County, Jefferson County and Adams County to surrounding areas. There even may be some sleeper races to watch.

As volatile and chaotic as this election cycle has been with Trump and former Secretary of State Hillary Clinton at the top of the ticket and even as an appetite for third-party candidates rises, conventional wisdom holds while the House is within reach of Republicans, it likely will remain under Democratic control. A Trump tail wind is buffeting Republican campaigns up and down the ballot.

“The Senate is the one to watch,” says John Straayer, a political science professor at Colorado State University who focuses on legislative politics. “It seems to me that there are more at-risk seats on the Republican side than the Democratic side.”

This election season, millions have been pouring into a handful of targeted legislative races on both sides of the ideological divide, from liberal billionaires like George Soros and California environmentalist Tom Steyer to the oil and gas industry. Soros, who has personally donated to a handful of Colorado Democrats in battleground races, is also linked to nearly $200,000 in spending here through a group called Immigrant Voters Win. Steyer’s group, NextGen Climate Action Committee, has spent nearly $2 million here, much of it on research and polling.

As the parties wage war over the airwaves, in your mailboxes, and at your doorsteps, Democrats have a nearly 2-to-1 financial advantage over Republicans this season according to an analysis by Colorado Public Radio, “raising $12.1 million, to the Republican’s $5.3 million.” The Republican Party, CPR notes, gets most of its money from oil and gas companies.

There are other groups on the conservative side with names like Better Jobs Coalition, Prosperity Through Property Rights (backed by realtors), Colorado Free Enterprise Alliance (backed by contractors and builders), and others spending money in legislative races.  And Boulder Weekly has published an investigation connecting dots the paper says shows a strategy among Republicans, the oil-and-gas industry, and even the University of Colorado Leeds School of Business, “for turning Colorado from blue to red” through a network of  people and groups.

Meanwhile, for the first time careful political observers can recall in Colorado, anonymous fliers are attacking Democratic candidates for the legislature with no disclosure at all about who paid for them.

In other words, there is plenty of energy expended on either side hoping to have influence in how the Legislature looks, likely because of what they think they might get out of it. After the 2016 session, one emerging consensus was that lawmakers didn’t do much. A split House and Senate resulted in gridlock.

Take, for example, the one day last winter when a Democratic House committee passed an expensive education bill to fund full-day statewide kindergarten. An hour later, a Republican Senate committee killed a bill that would have asked voters to support the same thing.

If they win control, Democrats say they would like to see the legislature tackle issues such as climate change, criminal justice and education. Democratic lawmakers say they could pass a key budget plan blocked by Republicans in this last session.  

“The issue is whether or not Colorado can continue to be on the leading edge of cutting carbon emissions, adding wind and solar energy and tackling climate change,” says Pete Maysmith, who runs the environmental group Conservation Colorado, which is spending in the six figures to help elect Democratic senators. It has spent more than a quarter of a million on the Woods-Zenzinger race alone. “That is in part— not exclusively— what’s at stake in the Nov. 8 election.”

Conservatives say they are worried a Democratic takeover could lead to a repeat of 2013 when lawmakers passed a liberal wish list of new laws that not only included the tougher gun laws, but more liberal voting rules, including all-mail ballots and Election-Day voter registration. Conservatives say they fear environmental regulations and an assault on the spirit of the Taxpayer’s Bill of Rights, a 1992 constitutional amendment that limits government spending.

Democratic control of the statehouse will also amplify Hickenlooper’s power as governor. The split chamber has meant he didn’t have to sign many controversial bills. The bills that came across his desk only arrived there with bipartisan support. (Hickenlooper himself is wading into the fray, airing a TV commercial for four Democratic state Senate candidates.)

Jon Caldara, the president of the libertarian Independence Institute, worries Hickenlooper, whose term is up in January of 2019, will sign whatever progressive law finds its way under his pen.

“2013 showed just how weak the governor was in signing every piece of ridiculous legislation that came his way,” Caldara says, citing the magazine limits for firearms. “It would be different if we had a governor who would stand up to the crazies in his own party, but we don’t.”

So, what might happen if the Legislature flips?

Climate change moves to the forefront

Conventional wisdom has it that if the Democrats take control of the Senate, that body’s current minority leader, Lucia Guzman of Denver, would become the new president of the Senate. And if that happens, she would not only have the power to assign Senate committee chairs, but also could set up a new standing committee.

She told The Independent that she would create and appoint members to a new panel with one mission: to “move the state in the direction of supporting more renewable energy.”

Guzman says part of the committee’s work would be assessing how state government could help communities on the Western Slope where the coal industry is on the wane.

Colorado, she says, needs to move into a renewable energy economy.

”We want to have an opportunity through this committee to join with communities in the rural areas throughout Colorado where we might bring together environmental and conservation interests with business rejuvenation opportunities,” she says.

One potential partner in the effort, she says, likely would be Conservation Colorado.

Asked what his group hoped to achieve with a Democratic majority, the group’s leader Maysmith said an increase in rooftop, community, and utility-scale solar power, as well as more wind turbines and new jobs associated with such industries.

Colorado, he said, will look different if pro-environment lawmakers are running the state Senate, and that’s why his group is making it rain to see that happen.

This doesn’t surprise Simon Lomax, an energy policy analyst at the conservative Independence Institute. But it concerns him. Throughout this campaign season, Lomax has been tracking the “extraordinary” campaign finance spending (nearly $2 million) of environmental billionaire Tom Steyer of California in this year’s Colorado’s legislative elections, much of it on research and polling. In a series of blog posts for the website Complete Colorado Lomax has framed Steyer’s spending as a big-money campaign to help Democrats take over the state Senate.

“If you needed proof that Tom Steyer and the environmental left are making a big move in Colorado politics this year, this is your proof,” Lomax says of the prospect of a renewable energy committee in the Senate.

He says such a plan reminds of him of something called the Select Committee on Energy Independence and Global Warming launched by then-House Speaker Nancy Pelosi of California in 2007 after Democrats took control of Congress.

“This climate committee idea comes right out of Washington, D.C. and San Francisco before that,” Lomax says. “It shows once again that environmental politics are a huge factor in almost every race on the Colorado ballot this year. The danger signs have been there for many, many months.”

Of course those signs are not seen as dangerous to everyone.

Renewable energy and conservation is a good example of what’s at stake in the legislative elections now playing out statewide, says Jim Carpenter, who worked in the governor’s office for Roy Romer under a Republican-controlled legislature and then under Bill Ritter and a Democratically controlled statehouse.

Under Ritter, when Democrats held both chambers between 2007 and 2010, they were able to pass about 59 pieces of renewable energy legislation, Carpenter says. That legislation included increasing the state’s renewable portfolio standard, which requires state-regulated utilities to use a certain percentage of renewable energy, from 10 percent to 30 percent, and helping the wind, solar and geothermal industries to grow in Colorado. They also rewrote state rules for the oil and gas industry that expanded the size of an oil and gas conservation commission to include the head of the Department of Natural Resources and the head of the public health department and required more conservation voices be involved in making appointments to it. It was the first major reform in oil and gas regulations in Colorado in decades.

“That just would not have been done if we did not have a majority in both chambers,” Carpenter says now.

During those years, lawmakers also passed the Clean Air Clean Jobs Act, which began a process of retiring a handful of coal-fired power plants.

Says Carpenter: “If you control both chambers then you can start with a very different conversation than if the other party controls something.”

Transportation and education funding goes up in the short term

During the last legislative session, the biggest fight came over a plan by Hickenlooper and Democratic lawmakers to re-classify the hospital provider fee into a standalone enterprise exempt from limits on how much revenue the state can collect before triggering TABOR.

The hospital provider fee requires hospitals to pay the state based upon the number of overnight patient stays and outpatient services rendered. That money is then used, among other things, to care for Coloradans who can’t afford insurance plans, and to help the state pay for Medicaid, which is a government healthcare program for low-income Coloradans and their families.

Each hospital pays a different amount — some pay a lot, some pay nothing — and the fee hauled in nearly $700 million last year. This money is then matched almost dollar for dollar by the federal government to expand Medicaid, provide health coverage for Coloradans who are using emergency rooms for non-emergency treatment, and reimburse hospitals for care. The more money the fee brings in the more money the feds give Colorado to make sure people who can’t afford healthcare get it. Since 2009, the program has helped more than 300,000 people get insurance coverage.

That money is counted toward revenue limits the state can take in under TABOR. If the program is re-classified as a standalone enterprise and exempt from revenue limits, it would free up millions of dollars. Democrats say they would use the money for infrastructure spending, transportation spending, and to fund higher education in Colorado.

Since Republicans took control of the Senate in 2014, any attempt to work around TABOR constraints has been blocked.

During this last session, focus on the hospital provider fee sharpened with the realization that Colorado was poised to hit its caps under TABOR.

Reclassifying the fee has near monolithic support from the state’s business community because it would help fund transportation and education, and last session, the effort to do so likely had the votes to pass even the Senate — if a bill would have made it to the floor. But a term-limited Republican Senate Leader Bill Cadman of Colorado Springs vigorously opposed the change as a violation of the spirit of TABOR even though the state’s Republican attorney general opined that reclassifying the program was legal under TABOR. The free-market group Americans for Prosperity, backed by the billionaire Koch brothers, was loud in its opposition to the bill, as well.

Still, there were likely enough votes in the legislature to pass it, especially because of Republican Sen. Larry Crowder’s support. But Cadman sent the bill to a so-called kill committee, where a Republican-controlled panel snuffed it out, thwarting a floor vote.

If Democrats take control of the Senate they will have control over committee assignments. So, boom. Done.

“If we have the majority we will pass the hospital provider fee,” an emphatic Guzman said.

Oddly enough, the hospital provider fee debate has largely been absent in even some of the tightest legislative races that could determine control of the Senate, says Michael Fields, the state director of Americans for Prosperity.

His own group hasn’t made much hay of it, either, and, Fields says the AFP instead has focused resources on the high-profile congressional race between incumbent Republican Mike Coffman and Democratic Sen. Morgan Carroll.

“Regardless of who has control over the legislature, the hospital provider fix isn’t going to fix our long-term budget issues,” he says. “The people who are supporting this have promised [the money from it] to everyone out there … it will dry up soon.”

The death penalty could be repealed

Last year, death penalty abolitionists in Colorado hit the snooze button on trying to repeal capital punishment, largely because lawmakers in favor didn’t want a backlash during the campaigns in their upcoming elections in an unpredictable presidential election year.

That’s the same reason abolitionists did not run a ballot measure for repeal this year.

At the beginning of last session, Guzman said she would not be running a repeal bill, but she would work to fight for it over the next few years.

During that same session, Republicans in the Senate put forward legislation— ultimately unsuccessful— that would have actually made executing people easier in Colorado.

If Dems take control of the Capitol, repeal could pass, Guzman says.

“That’s a bill that we as Democrats have wanted to bring forward and get passed over the years,” she said.

While there are some Democrats who don’t support repealing capital punishment, Guzman says she’s confident she could reach across the aisle and work with some like-minded Republicans.

“I’m very excited, and have a lot of belief that we could pass the repeal of the death penalty if we change leadership,” she says.

Democrats could shape the state budget

The mother of all committees at the Colorado Capitol is the Joint Budget Committee. Six lawmakers (three from the House and three from the Senate) sit on the JBC. The committee’s makeup will change after this general election.

The JBC essentially writes the state budget. It is where all budget bills begin, and the panel deals with supplementing budgets (or not) when one agency or another comes looking for more money. In other words, the JBC sets priorities for how the state of Colorado spends its money.

Right now, the JBC is evenly split with three Democratic members and three Republican members. If Democrats take control of the Senate, Democrats could take control of the JBC, as well.

Partisanship is a fact of life up on the JBC. It matters who sits on the committee and in a time of increased political polarization, it matters which party they represent.

Consider: Before the GOP took control of the Senate, a state program was created in Colorado under which unauthorized immigrants could obtain driver licenses. After 2014, when Republicans took control of the Senate in those legislative elections, the JBC cut funds the program needed to operate, leading to months and even years of waiting for those licenses.

One area where influence on spending under Democratic control of the JBC might be most apparent is with education policy. Democrats would likely be more open to more funding.

According to the Colorado Fiscal Institute, a Denver-based economic think tank, Colorado ranks 48th in the nation for state funds per full-time student. Since 1992, teacher salaries adjusted for inflation decreased more than 20 percent in Colorado, according the Learning Policy Institute.

“Traditionally higher education has always been the first thing to get cut in a bad year,” says Pat Steadman, a Democratic senator from Denver and a member of the JBC who is leaving office this year. When higher education funding gets cut, he says, tuition goes up faster.

On the campaign front, the Colorado Education Association is helping candidates in tight legislative races this year, maxing out campaign contributions in some, and having their members canvass the districts.

“Most of our recommendation candidates are Democrats,” says CEA president Kerrie Dallman.

Still, she sees education as a nonpartisan issue.

“The legislature has changed control between parties over decades now and we’re still near the bottom of education funding in Colorado compared to nationally,” she says. “For us I don’t think it necessarily matters [which party] is in control over at the state legislature.”

Education advocates like Dallman say you can’t have a conversation about education funding in Colorado, though, without having a conversation about TABOR.

Democrats in control of the JBC won’t fix Colorado’s school funding problem, Dallman says, but a takeover might mean the legislature will re-classify the hospital provider fee to offer a short-term supply of funds.

Back in Walsenburg

On a sunny afternoon in October, Sharon Valdez is on her way to the local utility to pay some bills. Like plenty of Coloradans she’s been bombarded with ads and news about this election.

But, as far as the partisan makeup of the Legislature hanging in the balance goes, “I didn’t know that part,” the local retiree says on the sidewalk, pulling a squirming young boy by the arm. “I’ve been listening to Trump and Hillary and what’s going on there.”

Neither has she been following the race between Crowder and Casias.

Around the corner, the headquarters for the county Democratic and Republican parties sit not far from one another. Both have their doors open to the street. At around noon, only workers and volunteers are to be found inside.

Dale Lyons, chairwoman of the Huerfano County Democratic Party, says it’s hard to break through the noise of national politics to get voters interested in legislative elections. But the party, she says, has printed up a leaflet on the major differences between the two party platforms and why they feel Democrats would be better up and down the ballot.

About a block away, volunteer Sandy White, a retired water lawyer, sits alone, arms crossed, in the local Republican HQ. He says he often stresses to voters how local elections can matter more than the ones topping the ticket.

“It takes a long time for the federal government to reach into Huerfano County, with some exceptions,” he says. But still, he says the race between Crowder and Casias for Senate District 35 has not gotten much attention in the area.

White thinks most people likely assume Crowder will win because he’s so well known, so, “it’s just not high on everybody’s list of things to worry about.”

Around the corner, on Main Street, Marianne Smithey sits behind the counter of her antique shop unaware that control for the state Capitol is up for grabs this year.

“I don’t let politics consume my life,” she says. “If I did, I’d go crazy.”

The most vocal critic of a proposed ballot measure that would let dying people take prescribed life-ending drugs is a 44-year-old lawyer and disability rights activist named Carrie Ann Lucas.

It is Lucas who joins – or leads – public protests, who talks to reporters, who takes on the issue at debate after debate. Inevitably someone will suggest her arguments are selfish or callous, or that she is a fear-monger. Her critics’ understanding of the measure is as flawed as the measure itself, she will say, not without empathy. She knows people behaving in the name of love and mercy can’t always hear beyond the cry of their own hearts.

“I don’t want anyone to die in pain, either, and have a miserable death,” Lucas says. “But I also want to make sure that we are legislating laws that protect the most vulnerable people. And this doesn’t do that.”

In her newspaper op-eds, she describes what those who have not seen her may not know: She has a degenerative neuromuscular disease. She uses a wheelchair. She breathes through a ventilator. She has a gastrostomy tube. Lucas presents the details of her disease in the same straightforward way that she lives, in Windsor as a single mom with four children — all adopted, all with disabilities. Her manner suggests it would be wise to stifle any hint of pity. For that matter, do not veer into some version of “I could never do what you do,” because, really, you don’t know what you are talking about. Human beings have no idea what they are capable of.

Lucas testified against death-with-dignity bills in the last two state legislative sessions. The hearings were full of emotion and dramatic testimony on both sides, and the bills were defeated. So, supporters sidestepped the legislature and gathered more than enough signatures to put the question on this year’s ballot.

Voters now will decide whether Colorado will join five other states that allow mentally competent adults with less than six months to live to receive a prescription for life-ending drugs. Two doctors must agree on a terminal diagnosis and prognosis. The patient can take the drug when and where he or she wishes, as long as it is self-administered.

Prop. 106 is widely supported in Colorado, which has a strong independent streak. Supporters, largely affiliated with Compassion & Choices, a Denver-based national organization, had raised $5.6 million as of Oct. 20, nearly twice that raised by opponents, the most powerful of which is the Catholic Church.

Lucas attributes the lopsided support for the measure to misinformation, naivete, and the gauzy handiwork of euphemism. “It’s not ‘medical aid-in-dying,’” she says. “It’s assisted suicide.”

The issue resonates deeply with those who know the helplessness of watching someone they love slowly die in pain or terror. (And I am among this universe of people. My mom. Cancer.) Or of knowing someone terminally ill and so desperate to die, they take their own lives. It is personal. On that level, the support for Prop. 106 is easy to understand.  

It is also easy to understand those opposed for religious reasons. Their faith tells them that it is not for us to decide when we should leave this world any more than it was for us to decide when to enter it.

Lucas’ arguments are more complex. This is, in part, because she is given to saying such things as the proposed law discriminates against people who are not terminally ill. “If we really believe that people should have the right to have total control over every aspect of their lives, even to death, then why not let a depressed 19-year-old who broke up with his girlfriend and is in very real pain access these drugs?”

(Yes, this is hyperbolic. No, Lucas does not seem to care. She is in the habit of carrying an argument to its furthest logical extension.)

But, in large part, her position can be hard to understand because it is rooted in her life as a disabled person. It requires the able-bodied to enter a realm where each day can bring a reminder that you, disabled person, are an afterthought to some, the subject of idealized inspiration to others, and an object of pity or repulsion to others still. All of these reactions achieve the same result: to strip from people with disabilities their  humanity, to deny them mutual acknowledgement of the glorious and messy and sacred thing that it is to be alive.

This is a realm unknown to most able-bodied people. And Lucas has spent half of her life here.

***

She was a high school freshman when she began to lose muscle strength. She attributed this, at first, to laziness. Lucas was an athlete. Maybe she just wasn’t training as hard as she should be, she thought.

By 17, she was walking with braces and had begun a years-long odyssey from specialist to specialist, from crutches to a manual wheelchair to an electric wheelchair, from a part-time ventilator to a tracheotomy and a 24-7 ventilator. Lucas now occupies “the land of folks who have a neuromuscular disease for which we don’t have a definitive label.”

As her disease progressed, Lucas graduated from college, worked as a teacher, volunteered as a youth pastor, received her Master’s degree in divinity, and went to law school, graduating near the top of her class. She won a prestigious Equal Justice Works fellowship, launching what became the Disabled Parents Rights nonprofit she now runs.

Along the way, she adopted four elementary-school-aged children from foster care. All have disabilities of one sort or the other. Two need a wheelchair to get around. They range in age now from 15 to 26.

Over time, she came to view doctors as fallible and biased against the disabled, whose quality of life, she says, they deem poor.

She learned that bureaucracies – be they the insurance industry, the school or child welfare systems – were quick to second-guess the needs and abilities of disabled parents and of disabled children. She had to fight to adopt her first child, her niece, because the child is disabled and Lucas is disabled and the social service agency could not reconcile the two.

Lucas, who practices juvenile law, represents parents who have been accused of abusing or neglecting their children. About 80 percent of her clients are parents with disabilities, who are overrepresented in the child welfare system.

“We hear things all the time like, ‘How can you be a parent if you can’t throw a football for your son?’” she says. “As disabled people, we are always addressing the issue of how society devalues our lives and experiences. We are always confronting attitudes about our abilities to work, to be parents. We are confronted day in and day out with the way society views our capability and our quality of life.”

She underwent a slow, steady shifting of landscape, her worldview expanding from that of her able-bodied youth to that of someone facing yet another too-narrow doorway, too-cluttered aisle, or too-tiny restaurant because no one was thinking about how a wheelchair might fit.

The redirecting of perspective was so incremental that she did not experience it as an epiphany, but more like once she was on one side of a threshold and then she was on the other and she could not tell you how or when she crossed.

“It just was,” she says.

***

Prop. 106 defines terminally ill as “an incurable and irreversible illness that will, within reasonable medical judgment, result in death.” The proposed law also says the mentally competent terminally ill adult who wishes to access the drug – a sleeping medication known as secobarbital – must have a prognosis of death within six months.

By this definition, Lucas argues, she would qualify as terminally ill. Anyone who would die without medical intervention or treatment would qualify, including the insulin-dependent diabetic, she says.

Nonsense, counter supporters. The proposed law says the right to request life-ending drugs “does not exist because of age or disability.”

“Our doctors know the difference between someone who is disabled and someone who is terminally ill and has no option for life-saving medicine, no opportunity for medical intervention. They are in the active stages of dying,” says attorney Julie Selsberg.

If Lucas is the face of the opposition, Seslberg is that of the proponents. Her father suffered from ALS and wrote a letter to The Denver Post in February 2014 begging lawmakers to pass a death-with-dignity bill. In the absence of such a law, he said, he had chosen to starve himself to death.

“I have to give my testimony to you now, because by next week I hope to be dead,” he said. “You see, I made a terrible mistake. I chose to live when I should have chosen to die, at my own hands, many months ago. Because now I can’t swallow the foods that made my mouth water or the sweets that added a few pounds to my middle. I can’t talk to my friends and family who surround me; my voice is barely audible, and every whispered word takes monumental effort. I can’t walk; my muscles have atrophied. I can’t breath; I’m on a machine that inhales and exhales for me.”

It took Charles Selsberg 13 days to die.

“Doctors are not looking to interprete this is in broad manner,” says Selsberg, who has debated Lucas four times. “I was a prosecutor and I would not support something that I felt would prove a danger to a certain population. I have devoted my life to seeking justice for people and this is seeking justice for victims of terminal illness. I would not support it if I thought it would cause harm.”

Colorado isn’t pioneering anything here, Selsberg says, pointing out that Prop. 106 is modeled on Oregon’s law, which was passed in 1997. Since then, according to state statistics, 1,545 people have had prescriptions written under the Death With Dignity Act, and 991 patients have died from ingesting the medications.

But, Lucas argues, Prop. 106 does not explicitly say “active stages of dying.” From that lack of specificity flows the rest of her main argument. It follows the logic of a larger society that insists that with your wheelchair and ventilator and feeding tube, with your incontinence and inability to bathe yourself, you cannot possibly have an acceptable quality of life.

It does not escape her that some of the very same conditions that prompted Charles Selsberg’s plea to die with dignity are those with which she lives: a ventilator, a feeding tube, muscles that have atrophied.

“That’s my life,” she says. The profound insult of Prop. 106, she says, is the suggestion that she and others who are disabled lack dignity.

Lucas’ experience suggests to her that someone who is dependent on medical intervention to live, who is isolated and vulnerable and depressed, could easily find two doctors willing to sign off on a lethal prescription because, again, who would want to live this way?

That same experience suggests to her that a caretaker, weary of caretaking, could wage a campaign of persuasion – or coercion – against such a disabled person, sowing a seed of doubt that blossoms into certainty that life is no longer bearable and this prescription thing is the way to go. And, because no witnesses are required to be present, that caretaker could force feed the drugs and claim it was self-administered, Lucas argues.

That would be a felony under the law, said Selsberg, adding that safeguards are in place to protect against precisely such abuses as those Lucas describes.

Lucas calls the safeguards weak and unenforceable. “Look at what happened with medical marijuana,” she says. “The number of 18-, 19-, 20-year-olds with debilitating back pain working at ski resorts is remarkable.”

“It’s not the people who are supporting the measure, the proponents’ families, that I am worried about,” she says. “Those folks, clearly they have loving family members around them. It’s the people who don’t and I represent a lot of people who have no one … This a clear social justice issue. Once a person is dead, you can’t go back and say, ‘Oops, she was really abused. She was really depressed’ — and people at the end of life are depressed, to say they are not is a lie. It’s done. We can’t go back and fix that.”

***

Lucas fights because she does not know how not to fight. She has never been an “Oh, it will all work itself out in the end” kind of person. This is the girl who in high school ended up in the principal’s office because she argued that the band director should let her friend’s disabled sister march in band.

“It was just, ‘What do you mean she can’t go? Of course she can. You make that happen. You figure it out.’ That was my attitude. You fix things.”

The girl got to march.

This is the woman who decided to get her Master’s degree in divinity at Iliff school of Theology (she wanted to be a community organizer) and then went on a 33-day hunger strike with a handful of other Iliff students to protest what they saw as institutional racism. How could the library there not carry work by major African theologians, she demanded. She went on to sue the college because it did not have a handicap-accessible bathroom.

“I once said, when introducing Carrie for an award, that I know no one as able to bend reality to her will,” says Amy Robertson, a longtime friend of Lucas’. “She has a number of disabilities, her kids have disabilities, she fights for parents with disabilities. She can go into a situation and say, ‘This is how I see it,’ and get people to finally see it that way.”

Lucas has lost count of how many lawsuits she has filed as a plaintiff; many were part of her earlier work at the Colorado Cross-Disability Coalition. Nearly all involved violations of the Americans with Disabilities Act. The most well-known was probably the Kmart case, a class action suit in which she was the lead plaintiff and Robertson her lawyer. Filed in 1999, it took seven years to resolve and resulted in Kmart making its stores accessible, as well as a landmark $13 million settlement of which Lucas received $10,000. (“I took my kids to Disney World.”)

She fights because she still can.

When I first called Lucas, she thought I wanted to talk to her about Jerika Bolen. Bolen was the 14-year-old Wisconsin girl who was diagnosed with Spinal Muscular Atrophy Type 2, an incurable, progressive disease. She could move only her head and hands. She was in constant pain.

Jerika decided she wanted to stop treatment and enter hospice, choosing to die. She told the local paper she had thought about it a long time and that she knew her decision would hurt her family, but she was going to a better place. Her mother told reporters she had to respect her daughter’s decision, saying her daughter lived in constant pain and “no one in their right mind would let someone suffer like she was.”

Jerika asked for a special prom before she entered hospice. The story made national headlines. Hundreds of people attended. She died on Sept. 22.

“We just watched them starve a 14-year-old to death because she had a disability,” Lucas says. “She was 14. She was not dying. She was not anywhere close to death. We should be watching that girl go to high school and go to her actual prom and go to college and get a job because that’s what people with her neuromuscular disease do. People with her exact condition are therapists and doctors and lawyers and filmmakers and actresses and models. That is what she should have been doing.”

Lucas asked local child protective services in Wisconsin to intervene in Jerika’s case. For that, she says, her office received death threats.

“Everything from ‘I hope you die,’ ‘You are going to be the next to die.’ to ‘Butt out. This is none of your business.’”

Many comments came from people she assumes were “white liberals” because they came on the heels of a public radio interview. Those comments were more along the lines of: “’Well, of course she wants to die. Her life is horrible. She has this disability.’”

Which, to Lucas, is just another way of saying, “Better off dead than disabled.”

Lucas knows some people think she is misleading voters about the potential consequences of Prop. 106. She knows some think the scenarios she paints are far-fetched.

But Lucas also knows this: Just a few months ago people accepted a 14-year-girl’s decision to die rather than live with her disabilities. They not only allowed her to enter hospice and remove her ventilator. They also threw her a prom.

Large photo by Megan Verlee, Colorado Public Radio. Carrie Ann Lucas, right, a lawyer with significant disabilities, was among those testifying against the “Death With Dignity” bill on Feb. 7, 2015.

Small photo courtesy of Carrie Ann Lucas.

Over the past decade, Colorado has grappled with how to balance the enormous economic value of oil and gas production, including tax revenues and jobs, with its unwanted impacts on residential communities and the environment. FRACTURED is a new series by The Colorado Independent that examines the science, politics and humanity of oil and gas development and explores its impacts on Coloradans around the state. 

–

It was Sept. 27, and the room was game-day tense. Greeley residents Lowell Lewis, Nelly Morales and Dawn Stein sat near the lawyer representing their neighborhood group at a meeting with the Colorado Oil and Gas Conservation Commission (COGCC). Director Matthew Lepore and two others from the agency charged with regulating the state’s oil and gas industry sat around a table in their downtown Denver conference room, joined by two representatives from Extraction Oil and Gas, the company applying to drill in the residents’ Triple Creek neighborhood. Lepore and the Commission held the ultimate authority to decide the project’s fate, and the stakes were high for everybody.

The Greeley residents, part of a neighborhood group called Triple Creek Action, peppered Extraction representatives with questions about their company’s proposal to drill 22 oil and gas wells and place 24 storage tanks, 22 separators and assorted industrial machinery in a horse pasture adjacent to their neighborhood. Couldn’t Extraction find another place to put all those tanks? What about what Extraction’s plan to install pipelines to reduce the number of trucks passing close to their homes?

“Why did you have to put the access route for your trucks 35 feet from my bedroom window?” 60-year-old resident Dawn Stein asked.

At the COGCC meeting, the three Triple Creek residents said Extraction representatives had gone back on their word to create a nearly “tankless” operation through the use of pipelines rather than more invasive truck traffic to transport extracted gas. Using pipelines, residents said, was part of the requirement that Extraction use “best available technologies” in its drilling operations, which was mandated by the new neighborhood drilling rules that emerged from Gov. Hickenlooper’s contentious 2014 Oil and Gas Task Force. The rules, meant to address concerns about drilling near populated urban areas, were supposed to safeguard residential communities such as Triple Creek from the most severe impacts of new oil and gas development.

But as the meeting in the COGCC office unfolded, the Greeley residents began to doubt that Lepore and his staff were going to follow their own rules.

The Triple Creek residents later recounted that several times during the meeting, after one of them posed a question to an Extraction employee, it was Lepore who answered instead. “It was like [Lepore] was Extraction’s representative,” said Lewis, a retired civil engineer who lives in the neighborhood.

At one point, the residents’ lawyer Matthew Sura faced off with Lepore. Sura insisted that the COGCC would be ignoring two key provisions of the new rules if they approved Extraction’s Triple Creek plans as presented: one, that companies must rigorously assess their ability to conduct operations “as far as possible” from where people lived; and two, that companies use state-of-the-art technology to minimize impacts.

Sura had been on the Governor’s Task Force, and knew that every change in the rules that even remotely inconvenienced the industry was hard-fought. The neighborhood drilling rules were, in Sura’s opinion, the only substantive protections that the Task Force had achieved for neighborhood residents. But Lepore, Sura said, didn’t seem inclined to apply even those rules to Extraction’s plans.

Extraction Oil and Gas is a mid-sized, Denver-based oil and gas producer that has been operating since 2012. The company currently has more than 400 producing wells throughout Colorado, many of them in fracking-heavy Weld County.

As the meeting wound down, Lepore made a comment that residents say left them dumbstruck. “You need to understand the amount of money that Extraction has already put into this site,” they recall him saying. “And they need a return on their investment soon.”

To the residents, the remark demonstrated that the COGCC was prioritizing Extraction’s financial interests over the concerns of the neighborhood.

Lepore disagrees with the perception that he was taking Extraction’s side. He said that during the meeting, he simply noted Extraction’s perspective that it had invested “a great deal of time and money in the Triple Creek site and at some point in time would expect” to make a return on its investment.

“Articulating that perspective as part of describing the situation at this location should not be mistaken for advocating for it,” he said. Extraction spokesman Brian Cain declined to comment about these exchanges.

On Tuesday, Oct. 11, Extraction Oil and Gas held an initial public offering of 33.3 million shares of its stock on Wall Street. The estimated value of the company exceeded $3 billion. Three days later, the COGCC approved Extraction’s Triple Creek application, which included no mention of the more costly tankless proposal.

Dawn Stein outside her home in Triple Creek neighborhood, Greeley, Colorado. The access road to the new oil and gas development will be 35 feet from her bedroom window. (Ted Wood/The Story Group)

Taking the Task Force to task

Extraction’s Triple Creek proposal provides the first Front Range test case of the COGCC’s highly publicized new rules for neighborhood drilling, which were published on Jan. 25, 2016, and put into effect March 16.

Those rules emerged from a contentious political season. From 2011 through 2013, four Colorado cities (Fort Collins, Longmont, Broomfield and Lafayette) and two counties (El Paso and Boulder) passed citizen-driven bans or temporary halts on hydraulic fracturing in their jurisdictions. As this wave of citizen concern grew, Democratic U.S. Rep. Jared Polis financed two 2014 ballot initiatives that would give local communities more control over drilling and require larger setbacks from where people lived.

Industry backers countered with two proposed ballot initiatives of their own, one of which would have kept state oil and gas revenues out of places that banned fracking. Finally, in a brokered deal, Gov. John Hickenlooper arranged for everybody to stand down: In exchange for both sides withdrawing their proposals, the governor assembled a task force that would seek middle ground.

When the final rules emerged, many of those hoping for “middle ground” felt almost completely shut out. The task force convened in September 2014 and was comprised of people from the oil and gas industry, former government administrators, environmentalists, lawyers, agriculture interests and others. But the realpolitik of the task force’s membership, and the requirement of a two-thirds majority vote to pass new rules, effectively gave the energy industry veto power over any decisions.

Still, Polis at the time seemed mollified. “For the first time, citizens will be on equal footing to the oil and gas industry, and able to negotiate directly for regulations that protect property rights, home values, clean water, and air quality,” he said in 2014. Asked recently for a more current comment, Polis’s spokeswoman pointed to statements the Congressman made in 2015, after the task force had submitted its proposals: “The task force heard from thousands of Coloradans pleading for better protection, not simply more consultation. Unfortunately…the oil and gas industry blocked their recommendations,” he said.

But the realpolitik of the task force’s membership effectively gave the energy industry veto power over any decisions.

Task force members knew from the start that the pressure point for their deliberations was the increasing number of wells being built and proposed near areas where new homes were sprouting up faster than new well pads – often in the same neighborhoods. Over the past decade, new drilling technology and a multi-year boom in the price of oil propelled huge increases in the scale of drilling operations, even in the midst of existing residential home developments, particularly in Adams and Weld Counties. Growing concerns about the unintended consequences of this oil and gas boom, including impacts on real estate values, roads, public health and the state’s air and water quality, collided with the state’s embrace of significant oil and gas tax revenues and job creation.

Related: The Making of a Fractivist

The task force ultimately created a new acronym, Large Urban Mitigation Areas, or UMAs, to describe populated spaces like neighborhoods where stricter criteria should be considered for drilling. If a new facility with more than eight wells or the capacity to store more than 4,000 barrels of hydrocarbons onsite was proposed in a UMA, then companies had to prove they were using “best available technologies” and were siting the facilities “as far as possible” from residences.

Bernie Buescher, a former Colorado secretary of state and deputy attorney general who served on the task force, told The Independent that creating the neighborhood drilling rules was among the most difficult aspects of the task force’s work. He confirmed that the composition of the task force ensured that certain proposals that the industry opposed, such as allowing communities to institute outright bans or to require larger setbacks, were “non-starters.” Instead, he said, the committee focused on finding ways to “improve this situation given the dramatic difference in viewpoints.” This was especially challenging, said Buescher, since the COGCC must reconcile dual, often conflicting mandates: fostering oil and gas production and protecting citizen health and safety.

According to Buescher, the task force knew that phrases like “best available technology” would be “a continually changing standard” and would give the COGCC the latitude to evolve as companies continued to innovate. The group also recognized that there would be differences in the abilities of different sized operators to meet new standards, since larger companies with thousands of wells generally have substantially more capital than small stripper well operators with only a handful.     

The first test of what these UMA rules mean in practice occurred at the Western Slope community of Battlement Mesa in September 2016. In back-to-back decisions, the COGCC approved two well pad sites in the Garfield County development containing up to 53 total wells, proposed by operator Ursa Resources in the state’s first UMA-designated area.

In Battlement Mesa, both the operator and the COGCC first claimed that the proposed developments didn’t trigger the special UMA requirements at all, but citizen groups successfully argued that the new rules clearly were designed to apply to their situation. In Triple Creek, the same thing happened: The COGCC initially argued that the impacted area lacked the requisite 11 houses needed to qualify as a UMA. Residents had to use Google Earth and a scaled drawing of the area to convince the commission that in fact 13 homes would be affected by the new development.

County commissioners in Battlement Mesa’s Garfield County and city officials in Triple Creek’s Greeley both pushed through approvals of their respective projects over the objections of other governmental agencies. In January 2016, the Greeley Planning Commission rejected Extraction’s Triple Creek proposal unanimously, 6-0, only to be overruled in March by the city council in a contentious 5-2 vote. In the case of Battlement Mesa, the Colorado Department of Public Health and Environment (CDPHE) recommended that the COGCC deny the operator’s permit for an injection well for produced water, citing concerns that it was too close to a water intake that served the community and thus created an “unnecessary long-term risk for a spill.” (Produced water is a byproduct of fracking and contains a mix of trace hydrocarbons, chemicals and minerals.) The operator, Ursa, retracted its request, to drill the injection well in question, but the COGCC allowed Ursa to keep the well listed on its application, meaning the well could still end up permitted and drilled in the future.

In both cases, following the go-ahead from the local authorities, the COGCC approved the projects.

An Extraction 12-well facility, in Greeley, Colorado. (Ted Wood/The Story Group)

A promise ignored

When Dawn Stein heard the news that Extraction Oil and Gas was going to put an approximately 10-acre industrial facility in the field adjacent to her home, her world spiraled into disarray. The Triple Creek site is located in a field about five miles west of downtown Greeley, a bucolic few acres of horse pasture flanked by subdivisions on three sides. The proposed field currently is home to only two existing wells, one in the north and one alongside a road to the south. The land in question is owned by Richmark Real Estate, a company run by Arlo Richardson, whose Mineral Resources Corporation controls much of the drilling rights in Greeley.

Stein had lived on her three-and-a-half-acre property for the past 32 years and recalls “tons of wildlife” back in the day. There were raccoons, foxes and eagles, and Great Horned owls to which her late husband John would hoot, enticing the birds to reply. “Miss those days,” she said wistfully, sitting in her tidy living room surrounded by family pictures and pets.

Stein was still putting her life back together after John’s death when she attended a neighborhood meeting called by the Greeley Planning Department on Sept. 25, 2014. Extraction Oil and Gas had applied for 22 well pads, plus an array of accompanying industrial infrastructure, in the large field that sat between her home and her view of Longs Peak.

At the meeting, Stein said Extraction tried to calm residents’ fears by saying the company’s team was comprised of Coloradans themselves, and they promised to use state-of-the-art “tankless” facilities, which rely on pipelines to carry the hydrocarbons and “produced water” offsite. The tankless option would have markedly reduced truck traffic, noise and emissions from the development. “They couldn’t have promised us more,” Stein said. “I gave them the benefit of the doubt.”

Extraction’s decision to “go tankless” also caught the ear of COGCC Director Lepore, who expressed his excitement about a new technology that Anandarko Petroleum had developed, called a “High Vapor Pressure” (HVP) system, at a COGCC meeting in July 2016. Anandarko presented the innovation at the meeting, indicating that using HVP would allow the company to avoid on-site storage tanks and separators that can leak methane and volatile organic compounds. The system would also greatly reduce the incessant truck traffic, exhaust, dust and noise — and the eyesore of multiple large tanks — that many residents complain is a constant irritant in neighborhood oil and gas facilities.

At a previous meeting, on Nov. 17, 2015, Lepore had praised the practice of using pipelines, saying that the commission wanted to encourage companies to utilize them. “We think our rules have done that,” Lepore said, noting that “there are two companies doing tankless facilities. You heard from one [Anandarko]; Extraction is the other one.” Extraction spokesman Cain said the company currently operates four pipeline-only projects and has two more in the works.

However, residents report that at a second public meeting on Triple Creek the very next day, on Nov. 18, 2015, Extraction announced that it was no longer going to pipe its production off-site, citing, in part, the economic burden of doing so given declining oil prices.

“They couldn’t have promised us more,” Stein said. “I gave them the benefit of the doubt.”

Stein then learned that Extraction had bought an easement from her next-door neighbor, and that the company planned to use it to build an access road. Documents about Extraction’s plans show the road would become a nonstop parade route of truck and semi-trailer traffic for years, carrying millions of gallons of produced water and hydrocarbons to injection wells and processing plants. The road would be so close to her pillow – about 12 yards, a little more than the distance required to make a first down in football – that she couldn’t believe a company could get away with such plans. “What about the new rules?” Stein wondered. “Weren’t all these new rules supposed to apply to situations like ours?”

Stein is an unlikely combatant in these oil and gas wars. A real estate agent who also runs her late husband’s company – which services office coffee machines – she is appalled at what she sees as a complete lack of regulatory oversight. “The COGCC has so much power. Somebody should be watching them and obviously nobody is.” If the new rules don’t apply here, Stein wondered, “What’s going to happen on the next site? I don’t want anybody else to have to go through this.”

Stein said she never heard from Extraction before they sought approval for their plans. “Nobody ever told me until after it was a done deal,” she said.  

To this, Extraction spokesman Cain said, “It’s regrettable that [she] feel[s] that way,” adding that Extraction went to “great lengths” to publicize its meetings to the neighborhood. Greeley community development director Brad Mueller said the city, following protocol, was in charge of publicizing the meetings, and advertised according to standard requirements. Cain was also quick to point out other new technologies Extraction is using in the project, like electric drilling rigs, quieter transport trucks and 14-foot earthen barrier walls to dampen noise, saying that all qualified as “best available technologies.” He was also confident that the project meets all requirements. “This is one of the best planned projects that I’ve seen in my career,” he said, adding that Extraction continues to consider pipeline installation at Triple Creek as a long-term goal.

When Stein finally met with Extraction representatives on Sept. 27 this year, she told them their project would make her house uninhabitable. She offered to swap homes with the Extraction representatives, and asked why they wouldn’t just buy her out. Stein recalled Extraction representative Blane Thingelstad telling her, “We’re not in the business of buying homes.” Extraction spokesman Cain wouldn’t comment on that remark directly.

Stein isn’t alone in her concerns. Other Triple Creek neighbors formed Neighbors Affected by Triple Creek and gathered comments from dozens of people concerned about Extraction’s plans. They hired Sura, the lawyer who had been on the governor’s task force.

Sura felt Triple Creek was a place where residents had firm legal ground to make a stand, thanks to the COGCC’s new neighborhood drilling rules. Yet he warned his new clients not to hold their breath. “The COGCC has a perfect record,” Sura told them. “They’ve never rejected a company’s siting request.”

Extraction’s backtracking on the pipeline question drew the attention of other people in the energy industry. Lynn Peterson, the CEO of Synergy Resources, publicly admonished Extraction last February for its bait-and-switch on the Triple Creek location in an industry publication. “Well shame on us as an industry if that’s really the way you feel,” Peterson wrote. “You can’t go in and tell residents you can’t do these things because it costs you money. You don’t tell the residents, ‘sorry, but you have to deal with it.’ That doesn’t fly.”

On the phone with The Independent recently, Peterson backpedaled: “I don’t criticize any operators,” he said. Though he refused to compare Extraction’s behavior with Synergy’s (or any other operator’s), he admitted that his own company increasingly relies on pipelines instead of noisy trucks, despite the additional cost. “I’d ask for you to read between the lines,” he said. 

That Extraction told the community it would go tankless is widely agreed upon, despite the company’s waffling on whether it made a “promise” or a “commitment” or simply mentioned the option at a public meeting. Greeley community development director Mueller confirmed that he believes Extraction told the community it would forego  tanks during a neighborhood meeting. “They certainly left many people with the impression that they were going to do it,” he said. “I don’t think anybody who was there, including the owners, disagree that they said that.”

Triple Creek residents say Extraction, in fact, is denying saying it. “Regrettably, they have said it so many times to so many people that this Big Lie has become ‘truth’ with the passage of time and the COGCC has now started to repeat it,” said longtime resident Lowell Lewis.

Where does this discrepancy come from? In its response to 70 public comments, the COGCC wrote, “At no time during the COGCC’s Form 2A process did Extraction Oil and Gas propose that the Triple Creek Oil and Gas facility would be tankless.” In other words: The neighborhood meetings in which Extraction assured Triple Creek residents it would use pipelines were not part of the official process, and thus, the argument goes, promises made during those meetings have no relevance to the project’s approval. Company spokesman Cain told The Independent that Extraction hopes to eventually install the necessary pipelines, but left it out of its application because it couldn’t be sure.

The COGCC said only that, despite the verbal pledge, the application did not include the plans to go tankless and “there is currently no statutory or regulatory requirement that oil and gas operators pipe all of their fluids from an oil and gas facility.”

Greeley Mayor Tom Norton, who supported Extraction’s application, said that neighborhood meetings represent non-binding discussions that play no meaningful part in the eventual approval process. “It doesn’t matter how much they battled back and forth trying to make people happy,” he said of Extraction’s meetings with the neighbors. In that informal setting, he explained, “They can say whatever they want.”

Lowell Lewis, Triple Creek resident. (Ted Wood/The Story Group)

New rules, old tricks

Perhaps ironically, Greeley was one of the first Colorado cities to pass a local ordinance prohibiting oil and gas drilling, back in 1985. Both the City Council and a voter-approved ballot measure ensured that the city limits would not be open to drilling.

In 1992, the Colorado Supreme Court ruled in favor of an energy company that challenged the Greeley ban. That famous ruling, Voss v. Lundvall Bros, set the scene for a lot of what has followed. Justice Joseph Quinn ruled that the statewide interest in oil and gas development was significant enough to prevent any city from banning it. As Triple Creek resident Lewis puts it, the upshot in 2016 is that Greeley is now “the most fracked city in Colorado.”

Despite Greeley’s reputation as an industry-friendly town, all six volunteer members of the Greeley Planning Commission reviewed Extraction’s plan in late 2015 and voted to reject the project. After hearing feedback from more than 100 Greeley residents, the commissioners ruled that the location was “inappropriate” for such a large number of wells and that the project would be “very detrimental to the community” in and around the area. “We were all thrilled,” said Stein. “Somebody got some smarts and saw this huge site does not belong in a residential area.”

Then the application went to the city council. At a packed meeting on March 8th of this year, the council signalled its intention to overturn the Planning Commission decision. Stein attended, but said the council chamber was packed with Extraction employees, their families and supporters filling the closest seats, a standard industry tactic. The meeting started at just after 6 p.m., but residents weren’t allowed to speak until 10:10. p.m. Stein, who has endured five back surgeries, couldn’t stand long enough to speak. She went home to watch the rest of the meeting on her iPad.

The Greeley City Council approved Extraction’s project 5-2 at 12:30 a.m. Councilwoman Sandi Elder, who voted to deny the application, said she found 22 wells “excessive” but thought Extraction did meet all the necessary criteria. “What led me to vote against this was the number of individuals that came forth, and I very rarely change from what the Planning Commission has recommended,” she said. In their decision, the majority of council members cited Extraction’s property rights to access the underground minerals.

Again, the citizen group cried foul, claiming that property rights had nothing to do with it. By Greeley city ordinance, Extraction’s project required a “Use by Special Review” hearing, which involves a test for proposals of this magnitude. The project had to meet each of five criteria: 1) be consistent with the city’s comprehensive plan; 2) be compatible with existing and future land uses; 3) be suitable for the type of intensity of the proposed land use; 4) not adversely affect traffic flow or parking in the neighborhood; and 5) be in a location which had been analyzed to consider the cumulative effects of the project.

Triple Creek residents were shocked that the Extraction proposal passed any of these tests, but one, in particular, stood out: the project’s impact on traffic. Well pad access would be from 71st Avenue, a two-lane rural road slated for improvement, and included an upgrade of the “Sheep Draw” bridge that is already deteriorated and was never meant for intensive industrial use. The road already has much more traffic than ever intended, and is an access route to several schools in the area. In a December 2015 Planning Commission meeting, a traffic engineer for the City of Greeley focused on the traffic impact once the construction phase was complete, which estimates suggest will be about 18 heavy truck trips per day. But during the 72-day construction phase, the estimated number of trips per day is expected to be 200.

Greeley Mayor Norton dismissed the concerns over traffic, referring to the city council’s official ruling. He said the council decided that “there was no traffic impact of that development that exceeded what would result if it was developed as a normal subdivision,” and that frustrated community members “wanted to make something out of the traffic that just didn’t exist.”

Any large truck exiting the proposed access near Stein’s house would temporarily halt traffic going in both directions. Even without the addition of Extraction traffic, the road is already busy, especially around school drop-off and pickup times.

The Greeley City Council was well within its legal rights to overturn the planning commission. But that didn’t stop Planning Commissioner Charles Jones from resigning after the contentious decision. He left his post not because of the council’s vote — “That was in line with their power,” he said — but their reasoning behind it. According to Jones, the City Council felt Extraction had a “property right” that the city couldn’t threaten, and that made his job less meaningful.

“Simply because the mineral owners have the `legal right’ to develop these rights does not immediately constitute acceptance of any and all locations for these types of facilities,” Jones wrote in his resignation letter. “Why go through the process if you’re just going to simply approve everything regardless of their locations and impacts by simply saying they have the `legal right?’”

“They wanted to make something out of the traffic that just didn’t exist.”

Some opponents say Norton yelled at them during the meeting. Norton said in a phone interview with The Independent that they were “probably a little sensitive,” moments before he began shouting during that conversation, too. The mayor was adamant about setting the record straight about Extraction’s so-called “promise,” a term he took big issue with. According to Norton, Extraction mentioning oil pipelines to a group of neighbors could never be interpreted to be a commitment, a guarantee or any binding agreement. He was also loathe to revisit the specifics of Extraction’s application or the Planning Commission’s decision, confident in a certain type of circular reasoning: If City Council approved the application, then the application obviously met all of the requirements for approval.

Storage tanks at an Extraction facility in Greeley. (Ted Wood/The Story Group)

Access denied

Leaving the fateful Sept. 27 meeting with the COGCC during which Lepore brought up his concerns about Extraction’s bottom line, it struck the Triple Creek residents that it wasn’t Lepore’s job to make a determination about whether and when Extraction Oil and Gas deserved a return on their investment.

It was Lepore’s job, Lewis and the others thought, to make sure that the state of Colorado balanced oil and gas companies’ proposals against the laws of the state and the protection of its citizens from noise, nuisance, chemical exposures and health and environmental problems. Lepore said that balance was achieved in the commission’s handling of both Triple Creek and Battlement Mesa. “We believe the process, which included significant review from Garfield County and the City of Greeley, respectively, was followed thoroughly in all cases,” he told The Independent.

The task force’s Buescher said that although he is not aware of the details of the Triple Creek and Battlement Mesa cases, he understands that the new rules raised community expectations – as well as the performance criteria for operators. Buescher believes that industry operators are improving many aspects of their proposals in response to the rules, such as better noise abatement and the use of electric-powered rather than diesel-powered equipment. Still, Buescher said, “These new rules are new. It will take some time to see their impact on the ground.”

The Triple Creek residents left their meeting with the COGCC with a sinking feeling. Their fears were confirmed two weeks later, when the COGCC announced its approval of Extraction’s application to drill 22 wells in Triple Creek.

On Monday, Oct. 24, Triple Creek residents Stein, Lewis, Christy Malnati and Rick Gerner drove about an hour and a half east to make one final plea. They soon arrived at the Northeastern Junior College ballroom in Sterling, where the COGCC had scheduled one of its relatively rare meetings that allow public comment. Lewis had sent all the commissioners a letter outlining the legal reasoning behind their request for additional review of Extraction’s Triple Creek project, focusing on what the neighbors believed was a deeply flawed interpretation of the COGCC’s own new rules. It was, in effect, a last-minute appeal for relief.

Lewis said he surprised the commissioners when he told them he had spoken briefly to the Governor at a Democratic campaign event in Greeley two days previously. Lewis recounted how he took the opportunity to bend the Governor’s ear about Extraction’s failings, including its insistence on running thousands of trucks past Stein’s bedroom window.

“They’re not using pipelines?” was Hickenlooper’s off-the-cuff response, Lewis said. The Governor’s office declined The Colorado Independent’s request to further discuss the remarks or the situation in Triple Creek.

At the Sterling COGCC meeting, Lewis, dressed in sport coat and tie, told the commissioners that the Triple Creek case involved an historic decision that should not be taken lightly. Given its status as the first application of the neighborhood drilling rules on the Front Range, he said, the decision would set a precedent that would affect communities around the state. If the commission approved the project without due consideration of its failings, Lewis joked, “Just imagine the new neighborhood groups you’ll get to know.”

It was, in effect, a last-minute appeal for relief.

The team of governor-appointed commissioners listened politely, and told the Triple Creek residents that they would take their request for an additional hearing under advisement with their lawyer in an “executive session” during lunch. Lepore suggested that the Triple Creek group stick around in case the commissioners were inclined to respond. After lunch, Lepore told the Triple Creek team that no decision had been made. The Commission’s legal staff from the state attorney general’s office would be in touch with the Triple Creek neighbors’ attorney.

On Oct. 27, Sura received a letter from Senior Assistant Attorney General Jake Matter declining the Triple Creek residents’ request for a “public issues hearing.” The letter stated that the residents, not being “applicants, protestants or intervenors,” lacked the standing to compel a hearing at all. Under COGCC rules, it turns out, such standing applies only to the oil and gas company, the landowner, the local government and the COGCC itself.

Dawn Stein at her home in Triple Creek. (Ted Wood/The Story Group)

Not anymore

Extraction’s proposal has wrecked me emotionally and financially,” Stein said. “Since my husband died, this property has become too much for me to keep up. I was hoping to sell it this year but who would buy it now? I am not against the oil and gas industry, but they should not have the ability to destroy a person’s home and life. It’s been pure hell.”

Lepore said situations like the one in Triple Creek are to be expected, new rules or not. “The task force rules were not intended to preclude large facilities, nor did we expect that these locations would be sited without varying degrees of discomfort being expressed by nearby residents,” he told The Independent.

As for Dawn Stein, she said that at this point, she’d take any reasonable buyout and call it a day.

“I was very emotionally attached to this place after living here for 32 years,” she said on an October afternoon, fighting back tears. “This was always our little slice of heaven. But it’s not anymore.”

Other stories in this series include Part I: Who’s behind ‘decline to sign’ efforts?, an examination of the public relations efforts of the oil and gas industry to influence Colorado politics; Part II: The making of a fractivist, a look at of how suburban parents have been energized to fight drilling in their neighborhoods; Part III: Why Colorado’s anti-fracking measures didn’t make the ballot; and Part IV: Why it took so long to shut down Texas Tea, a look at the inadequacies of the state’s regulatory structure.

Story by Daniel Glick of The Story Group and Kelsey Ray. Video and photos by Ted Wood/The Story Group.

As ballot initiatives go, Prop. 106 lends itself to some especially intriguing stories.

On the pro-side, there are people dying, in pain, desperate for some control over their last days, for peace of mind, and for dignity.

On the anti-side, there are people of faith who believe it’s a sin to take your life. And there are people with disabilities who think legalizing “assisted suicide,” as they call it, devalues their lives in the eyes of able-bodied folks and could lead to abuses that amount to murder.

Pretty existential stuff. Messy and human and deep.

That’s why we dug in, covering the medical aid-in-dying ballot question from lots of angles.

Tina Griego wrote a thoughtful and exquisitely rendered piece about Carrie Ann Lucas, the high-profile disability activist in Colorado who has some provocative reasons for trying to defeat the measure. Among them are her concerns that the law will open the door to abuse from doctors, insurance companies, caregivers and those who might benefit from the death of a disabled person. She fears that the medical industry will overlook depression in a person who is disabled, allowing those dependent upon medical intervention to end their lives prematurely.

You can watch Lucas argue those points here in this video of The Independent-sponsored debate against Barbara Coombs Lee, executive director of Compassion & Choices, the group leading the effort to make Colorado the latest state to pass a medical aid-in-dying law.

If Lucas is the face of Prop. 106 opposition, the face of support is that of Dan Diaz, whose wife Brittany Maynard died two years ago this week, at age 29, of an inoperable brain tumor. Maynard and Diaz moved from California to Oregon, so she could avail herself of a fatal prescription rather than spend her last few weeks in agony. Diaz has carried on Maynard’s mission of educating the public about the need for aid-in-dying laws. When speaking with Susan Greene for a Q&A, the former Eagle Scout and altar boy has especially harsh words for the Catholic Church, which condemned Maynard after her death.

Susan went to Mass one recent Sunday morning to capture the Catholic perspective on the ballot measure.

Over the past several months, we’ve spoken with Coloradans with terminal conditions who are fighting to pass Prop. 106. Patti James, an 80-year-old cancer patient, was never active in politics until Prop. 106 inspired her. She sees a clear distinction between suicide and medical aid-in-dying. “I can tell you that people who are diagnosed with a terminal illness are not suicidal. They want to live. But when pain gets more than tolerable, they want relief. There’s a big difference there,” she said. Read Susan’s story here.

One of the saddest stories we found was that of Sheryl Randall, whose mitochondrial disease was making eating impossible. With no medical-aid-in-dying option, she committed suicide. Friend after friend – seven, in all – came forward to tell the story of Sheryl’s desperate, violent end. It was a parable, they said, for why Prop. 106 needs to become law. “Maybe I’m projecting my own feelings on Sheryl,” one friend said. “But, then, I knew her quite well. I feel like she wouldn’t want anybody else to go through what she went through if there was a better way to do it.”

This is the story of an August night in 1987.

It’s about a brutal rape, the gauzy lines between dreams and memory, and the web of distortions Denver law enforcement has been willing to weave in the name of victim advocacy. It’s about DNA evidence tossed in a dumpster and a man freed after 28 years in prison only to be re-tried again by a district attorney who’s ignoring the confession of another man, the first person the victim named as her assailant. And it’s about a new trial in which the jurors haven’t been allowed to hear some of the most basic facts, including that the defendant whose freedom they control already has spent nearly half his life behind bars for the same, sick case.

The setting: A housing project in Denver’s Five Points neighborhood.

The plot: A woman drinks a six-pack – or maybe one can less or two or three cans more – with friends before falling asleep at her home in the middle of the night. She wakes soon after to something choking her in the darkness. A fist punches her face. She is raped from the back and from the front by a man she says she couldn’t see but later claims she could because, somehow, her memory is sharper almost three decades later.

The characters: The victim identifies three men as her possible assailants. None – including the first man, now a known rapist – is questioned as a suspect because the identity of a fourth man, she says, came to her later in a dream.

That dream identification, this nightmare, the victim’s blurring of memory and prosecution’s bending of facts, its effort to win at all costs regardless of reason, regardless of doubt, unfolded before a jury last week in room 5B of Denver District Court.

In the name of the victim, the Denver District Attorney’s office spent four days straining to justify the nearly three decades it has messed with an innocent man. The name of that man is Clarence Moses-EL.

His innocence, it seems, wasn’t presumed 29 years ago when authorities prosecuted him merely on the victim’s dream statement. Nor a year later when he was convicted on that dream and sentenced to 48 years in prison. Nor years after that when authorities fought against letting Moses-EL test the DNA evidence. Nor two years after that, when they refused to grant him a new trial after throwing the DNA in a dumpster. Nor a decade later when they wouldn’t reopen Moses-EL’s case even though they were prosecuting the first man the victim named in her outcry for raping a girl and her mom in a similar fashion. Nor nine years after that when the DA’s office tried, but failed, to keep that rapist from confessing in court. Nor since December of last year when a judge finally vacated Moses-EL’s convictions.

That’s how Moses-EL landed back in court last week, with DA Mitch Morrissey hell-bent on re-trying the case and throwing him back behind bars before leaving office in January.

And it’s how it happened that, at the end of her closing arguments Friday, Morrissey’s chief deputy embraced the victim’s daughter in the courtroom with a look of pained regret.

“Well, we may not win,” she told her. “But we gave it a good try.”

*   *   *

The trial started Monday afternoon after 12 jurors and two alternates were picked from a pool of 150. None is black like Moses-EL, even though African Americans make up more than 10 percent of Denver’s population.

The defense objected that this isn’t a jury of Moses-EL’s peers. The prosecution argued “there’s no evidence showing that there’s a systematic exclusion” of black jurors. Denver District Judge Kandace Gerdes ruled “the procedure was properly followed.”

Gerdes’ appointment to the bench came after years as a top prosecutor in Morrissey’s DA office. Her ruling about the jury’s racial make-up was just one in a months-long string of decisions she has made almost exclusively in favor of the prosecution. When the jury isn’t present, she uses one tone of voice for Deputy District Attorney Bonnie Benedetti, her former longtime colleague in the DA’s office, and another for the lawyers representing Moses-EL. After multiple hearings on his case and four days of trial, she has barely bothered to look at the defendant.

Both sides laid out the facts for the jury.

The victim — whose name The Colorado Independent is not using — lived in a housing project in Denver’s Five Points neighborhood that since has been torn down. In the summer of 1987 she had been feuding with a neighbor named Stephanie Burke who accused the victim of burning Burke’s 3-year-old son with a cigarette. The victim, in turn, accused Burke’s son of hitting the victim’s 2-year-old son with a rock.

The victim is small— 4’11’’ and 98 lbs. On the evening in question, she drank five to eight cans of Schlitz Malt Liquor Bulls without having much to eat. She was drinking with a group of friends at her best friend’s house. Then she returned home where her toddler son and baby daughter were sleeping, alone, in the living room. She threw up, cleaned up, then fell asleep on the couch with her baby.

She woke soon after with a do-rag around her neck, choking her. The man holding it then pummeled her so hard in the face that she permanently lost partial use of one eye. In the dark, he raped her anally, then dragged her upstairs and raped her vaginally. Out of self-defense, she said, she pretended to fall asleep when he was done.

The assailant left and the victim put on a robe, then walked a few doors down to the home of her best friend, who didn’t answer her door. The victim walked a block or two to the home of her sister, Denise Cousins, whom at first didn’t recognize her because her facial wounds were so severe.

For last week’s trial, the prosecution flew from Louisiana a witness named Floyd Howard who was living with Cousins in 1987. He testified that the victim named “Bubbles” — Moses-EL’s nickname at the time — when they asked who attacked her.

But there were holes Howard’s testimony. Big ones.

He didn’t recall Cousins’ last name, even though he had lived with her for a year. He said he was drinking heavily and likely shooting cocaine (if not also heroin and crack) on the night in question. He didn’t mention anything about “Bubbles” when questioned in 1987 and again in 2007 about his memory of that night. Even more problematic is that, when interviewed by a defense investigator earlier this year, Howard rated his memory of the night as “1 out of 10,” yet testified last week that it’s now a vivid “10 out of 10.” His sudden improvement in memory, he testified, came from “the universe.”

Police arrived at Cousins’ house shortly after attack and asked her sister who raped her. The police report shows the victim said “LC, Earl or Darnell,” three of the men with whom she had been drinking at her friend’s house earlier that night. She made the same identification later, again, to her sister at the hospital. And she confirmed at subsequent court hearings that she had named each of those three men as a possible attacker.

Doctors at Denver Health Medical Center tended to the six broken bones in the victim’s face and worked up a “rape kit” by swabbing her body. She then was sedated and slept for about a day. A day and a half after her assault, she spoke with her sister by phone and said her assailant’s identity, Bubbles, had come to her in a dream while she had been sleeping. The victim had told doctors she has premonitions and visions that come true.

Her dream statement was the only evidence against Moses-EL in 1988 when he was tried, convicted and sentenced to 48 years in prison. He spent decades appealing his sex assault and burglary convictions, which Judge Gerdes lifted in December after new evidence — detailed below — came to light.

Trying to buoy the credibility of the victim’s dream statement, the prosecution last week called Dr. Sara Mednick of the University of California-Riverside’s psychology department as an expert on sleep and memory. Medick is the author of a book called Take a Nap! Change Your Life. She testified that sleep helps with remembering emotional events.

In cross examination, defense attorney Eric Klein asked about one of Mednick’s published works in which she wrote that “Dreams are fanciful. They incorporate strange ideas that you would never incorporate in real life.” When asked about that assertion, she testified, “I don’t know if I would say that.”

The defense called Dr. Daniel Reisberg, a memory expert from Reed College, to testify. He said some people – especially those like the victim who believe in their premonitions and visions – mistake their dreams for reality. He called the victim’s dream statement unreliable, especially as criminal evidence, and said the witness identification in this case was one of the weakest he has ever seen.

“There’s a very high danger that it might be wrong,” he testified. “I would never dream of relying on it.”

The victim, now 53, took the stand Tuesday and said although she had been drinking on an empty stomach and threw up before her attack, she wasn’t drunk enough to have impaired her memory of it. At the prompting of prosecution, she downplayed the dream that was the main evidence against Moses-EL at his first trial in 1988. This time, she said she got a look at her assailant when he briefly flipped on the bedroom light to put on his shoes.

“I seen Bubbles,” she said.

Police found no fingerprint evidence from the light switch. And, more importantly, the victim had told police and repeatedly testified in court in 1987 and 1988 that she hadn’t seen her attacker’s face because her house was dark throughout the ordeal.

The victim is nearsighted and had said that she was “blind” without her glasses. Because her glasses were off and she was brutally punched in the face, she had no vision in one eye and at best weak vision in the other which, by her admission, she cracked open only slightly to catch a glimpse at her assailant when, she now says, he switched on the light.

She said she had met Bubbles — Moses-EL — in the housing project when he had asked if she’d buy some shampoo and lotion he was selling. At that point, she said, she called him “ugly.”

She knew Moses-EL mainly as the husband of Stephanie Burke, the neighbor with whom the victim had been fighting about their sons. Burke testified that she had beaten up the victim shortly before the night the victim was raped. The victim reported the fight to the landlord to get Burke evicted.

“She had bad feelings against me,” the victim testified.

The defense’s cross-examination of the victim was one of the most compelling points in the trial

Attorney Gail Johnson asked if she remembers telling police that she didn’t get a good look at her assailant because the lights were out. The victim said she didn’t’ remember.

Johnson asked about a hearing transcript in which the victim testified that her assailant had “slicked back wavy hair” with lots of grease like LC and Earl Jackson, two of the men she named in her outcry. “Well, if it’s on there. But I didn’t say that,” the victim answered.

Moses-EL’s hair was cut so short in 1987 that he was practically bald.

Johnson then called the victim’s attention to a part of a transcript from two months after the attack showing the victim’s sister asked her “who did this to you?” The victim answered, “LC, Earl, Darnell.”

“Did you say this?” Johnson asked.

“No,” the victim said.

Johnson pointed to a transcript of another hearing, again showing the victim’s sister and best friend had asked who raped her. She named “LC, Earl, Darnell.”

“You identified LC Jackson as your attacker the night you went to the hospital,” Johnson said.

“No, I did not,” the victim said. “I never said that LC, Earl or Darnell attacked me.”

“You see the transcript,” Johnson continued. “It says the words, but they’re not correct?”

“I don’t remember saying that,” the victim said.

Johnson: “Ms. [victim’s name], you said that under oath, right?”

Victim: “I don’t remember.”

Johnson moved on, asking, “Would it be true to say that at some point you had a dream and you relived it?”

“Right,” the victim answered.

“And that’s when you realized it was Clarence?” Johnson asked.

“Right.”

The victim tweaked her story when questioned by the prosecutor. She said she realized Moses-EL was her attacker not after her dream in the hospital, but a day and a half earlier in her bedroom when her assailant briefly turned on the light.

“I knew it before, but it wouldn’t come out,” she testified.

Benedetti asked if the victim knew LC Jackson at the time of her attack. The victim said yes, that Jackson was her best friend’s boyfriend.

“Did he assault you?” Benedetti asked.

“No.”

Jackson, 50, is relevant to the case not only because he was the first man the victim named as her assailant, but also because in 2006, through a hit on a DNA database, the Denver DA’s office nailed him on the 1993 cold case rape of a woman and her 9-year-old daughter at knifepoint. Their assaults took place about a mile from the attack in the Moses-EL case and in ways that bore many similarities.

In 2006, Morrissey refused to re-open Moses-EL’s case in light of Jackson’s involvement in the other sex assaults. Morrissey kept asserting, despite many records to the contrary, that the victim in Moses-EL’s case had never named Jackson as her assailant.

Before last week’s re-trial, Judge Gerdes ruled that jurors shouldn’t hear anything about the 1993 attacks, including a long list of similarities between them and the case they were hearing. Yet jurors did hear that Jackson is serving 135 years for a sex offense. And that from prison in 2012, he wrote Moses-EL a letter.

“I don’t really know what to say to you, but let’s start by bringing what was done in the dark into the light. I have a lot on my heart,” Jackson wrote. “I don’t know who (sic) working on this, but have them come up and see me. It’s time.”

Jackson told Moses-EL’s lawyers that he had rough, consensual sex with the victim and beat her up at the same place and time she said Moses-EL raped her. The DA’s office spent years unsuccessfully trying to keep Jackson from testifying in court. Under a ruling by Judge Gerdes, he finally took the stand in July 2015 and confessed to assaulting the victim. His testimony, among other new evidence, led the judge to vacate Moses-EL’s convictions and set him free from prison last December after 28 years.

Authorities brought Jackson from Arkansas Valley Correctional Facility to Denver to testify at last week’s trial. But he took the 5th to avoid self-incrimination.

In his absence, defense lawyers role-played a transcript from his July 2015 testimony. Under oath, Jackson said he had rough, consensual sex with the victim that night in 1987 in a position he found “nasty.” And he admitted that he got angry and lashed out in what he described as a “Dr.-Jekyll-and-Mr.-Hyde” burst of rage.

“I don’t think she really knew who done it,” Jackson said of the victim.

Having let Moses-EL serve so much time for his crime, Jackson said on the stand, had long weighed on his conscience. He told the judge that his mind went “back and forth and back and forth and back and forth” about whether to come forward. “It was hard for me to stand up,” he said. “I guess I was being selfish.”

Jackson likened himself to a scorpion that can’t change its violent nature. Confessing, he explained, was his way to enter “the kingdom of heaven.” “I want to just clear up a lot of things in my life,” he testified. “I just think this is the way I can relieve myself and not carry all this with me.”

Benedetti downplayed Jackson’s testimony to jurors, saying “Mr. Jackson has nothing to do with this case” and that he “will say whatever anybody wants him to say.” To advance that assertion, she called DA’s office investigator Jeff Carroll to the stand. Carroll – who happens to have been the police detective on a burglary case that landed Jackson in prison for many years – has helped Benedetti interview Jackson. He said Jackson told them he wasn’t at the victim’s house the night of her attack and never had sex with her.

“Did Mr. Jackson say he was more than willing to tell a few lies to help a friend,” Benedetti asked him.

“Yes,” Carroll said.

(Moses-EL and Jackson met briefly in the Denver jail in the late 1980s after Moses-EL was arrested. Despite the DA’s assertion, they’re not friends.)

When cross-examined by the defense, Carroll testified that Jackson said in a January 2016 interview that he was at the home of his girlfriend, Pamela Sanders, the entire night in question. But Sanders testified last week that Jackson left her home a few doors down from the victim for about 30 minutes that coincided with the attack.

Much of the trial focused on scientists.

Dr. Kathren Brown Dressel, the now-retired Denver Crime Lab forensic serologist who had tested evidence from the 1987 rape kit, testified that Moses-EL is what’s known as a B secretor. She found no B antigens on the swabs. Yet, using very conservative statistical standards, she wouldn’t eliminate Moses-EL as the perpetrator because she said she couldn’t tell if male antigens were present in a high enough concentration to be detectable separately from the victim’s antigens. In other words, she said, the female antigens traces may have masked the male blood type. So, she added, she could not exclude any male on earth from the sample.

Dressel’s conclusions were called into question by another forensic serologist, Dr. Robert Lantz, founder and director of Rocky Mountain Instrumental Laboratories in Fort Collins. He said Moses-EL is a “strong secretor,” meaning he’s genetically predisposed to secrete high levels of his blood antigen into his semen. That makes the “masking” that Dressel feared highly unlikely, he testified.

Defense attorney Klein asked if Moses-EL should be excluded as a contributor to the rape kit swabs.

“Yes. To a very large extent,” Lantz said.

Although he “couldn’t absolutely exclude” Moses-EL or any man from the sample, he said it’s extremely improbable, statistically, that Moses-EL was the assailant.

“We have to deal with the real world,” said Lantz, who’s still working well into retirement age. “I could play for the Broncos, but it’s not likely.”

Another defense witness, University of Denver forensic biology Professor Philip Danielson, also debunked parts of Dressel’s testimony. Based on analysis methods that are newer than Dressel’s, he testified that “there’s no indication of masking of male blood type in this case.” What that means statistically, he said, is that it’s highly unlikely the semen sample bore Moses-EL’s B blood type and highly likely the assailant was type O.

Jackson has type O blood.

DNA testing would, of course, have settled the question of the rapist’s identity. That’s why, from prison in the 1990s, Moses-EL – who maintained his innocence from the day of his arrest – raised $1,000 and won two court orders to have the rape kit swabs, bed sheets and other physical evidence tested for genetic fingerprinting. In 1995, Denver Police packaged those items in a box they marked “DO NOT DESTROY.” And then, before it could be sent to the DNA lab, they tossed it in a dumpster.

Judge Gerdes ruled that the jury shouldn’t hear evidence about events that took place after the original trial in 1988. So jurors weren’t told that there had been DNA evidence and that police trashed it. Without knowing that Moses-EL already served 28 years in prison on this case, they’re presumably wondering why he’s being tried nearly three decades later. They weren’t allowed to hear that the lead police detective, before his death, said in a sworn statement that he always had reservations about the case and suggested that the victim may have identified Moses-EL because of a personal vendetta against his wife. Judge Gerdes also wouldn’t let jurors hear about Jackson’s long list of known and suspected involvement in other sex assaults or about the many ways Denver police botched the investigation.

On Moses-EL’s behalf, Johnson argued with the judge’s decisions to exclude so much evidence that could exonerate him. “We should not be pursuing a fiction and hiding truthful evidence from the jury,” she told Gerdes. “It’s unimaginable that the court will be ruling that” the jury can’t hear how police “let an innocent man go to prison and allow a serial rapist to rape and rape again.”

The judge denied her objections.

Moses-EL didn’t take the stand in his four-day re-trial, which the prosecution ended by asking the jury to “return a guilty verdict” and “hold him accountable.” The defense pointed out that it’s not its job to prove LC Jackson was the assailant, but simply to raise reasonable doubts about Moses-EL’s involvement in a case that pivots on a dream.

“That dream has turned into Mr. Moses’s 29-year-old nightmare. It’s time for it to end. And it’s time for it to end now,” Klein said, calling what happened to the victim “a tragedy.”

“It’s also a tragedy to convict an innocent man,” he added. “Tragedy upon tragedy— that’s not justice. It’s the definition of injustice.”

Closing arguments ended late Thursday afternoon and the courthouse was closed Friday for Veterans Day. The jury will reconvene this morning to deliberate.

Beth McCann, the state representative elected last week to replace Morrissey when he’s term-limited out of office in January, has said she would have dropped the charges against Moses-EL and let him move on with his life. She said she’s especially frustrated that police trashed all the DNA evidence.

For his part, Morrissey has defended authorities’ mishandling of the DNA and twisted the facts about the case to news media and state lawmakers. He has stayed mum about his decision to re-try Moses-EL after Jackson confessed and Jackson’s ex-girlfriend said he slipped out of her house at the time of the attack.

It was a flimsy case, as Benedetti seemed to acknowledge when she was overheard after court Thursday telling the victim’s daughter that she may not win but gave it her best shot.

Her comment begs the question of why the DA’s office – which repeatedly, especially in cases of excessive force by uniformed officers, has said it doesn’t prosecute unwinnable cases – dug in so hard.

And it begs the question of why the office fought so long to suppress Jackson’s confession and keep new evidence from coming to light.

It raises questions about why a district attorney who has distinguished himself nationally as a champion of DNA evidence has, two months before leaving office, risked his legacy on a case in which police threw out all the DNA.

And it raises questions about why an elected official who ran on a promise of “even-handed justice” seems so intent, over and over again, on throwing an innocent man under a bus.

The answer may lie in Morrissey’s refusal to admit his office messed up. Or in his willingness to favor fiction over facts when it’s politically expedient. Or in what the DA tells audiences at his many Rotary Club speeches and other community forums: That he’s a champion for victims.

Which is ironic because, 29 years into Moses-EL’s legal odyssey, Morrissey seems willfully in the dark about who has done the most harm in this case and who has been most hurt.

Photo of Clarence Moses-EL by Marie-Dominique Verdier.

Photo of LC Jackson courtesy of the Colorado Department of Corrections.

Twenty-nine years, two months, and 28 days.

That’s how long it took Clarence Moses-EL to disentangle himself from a rape he didn’t commit, a 48-year prison sentence for a wrongful conviction, and the web of deceit spun by Denver authorities.

A jury on Monday acquitted Moses-EL, 60, of charges stemming from the 1987 sex assault and burglary of a woman in Denver’s Five Points neighborhood.

Denver District Attorney Mitch Morrissey’s office re-prosecuted Moses-EL even though new evidence led a judge to vacate his convictions last December after he spent 28 years in prison. That evidence included the confession of a convicted rapist who was the first man the victim identified as her assailant. It also included the testimony of the confessor’s former girlfriend that he slipped out of her house in the middle of the night when her best friend and neighbor was attacked. And forensic analysis showing that sperm found in the victim’s body matched the confessor’s blood type, not Moses-EL’s.

I’ve followed this case for more than a decade. Yet the details still seem as surreal as when I first read the court records and interviewed Moses-EL in prison.

How, I wondered, could Denver authorities not have bothered to question the men the victim first identified as possible assailants? How could they have prosecuted Moses-EL solely because the victim claimed, a day and a half later, that his identity came to her in a dream? How, after Moses-EL won two court orders and raised $1,000 from prison to test the DNA evidence, could they have tossed the box of evidence – marked “DO NOT DESTROY” – in a dumpster? And why did they refuse to grant Moses-EL a new trial in the late 1990s as a remedy for their foul-up?

Questions kept mounting as I followed the story.

Why wouldn’t Morrissey reopen the investigation in 2006 when he realized that LC Jackson, the first man the victim identified in her outcry, was a serial rapist? How could Morrissey get away with misleading the media and state lawmakers about the case? Why, since 2012, did Morrissey try to keep Jackson’s confession from coming to light? And what prompted the District Attorney to insist on retrying such a flimsy case after a judge let Moses-EL walk free?

The gravity of those questions weighed on family, friends and supporters as they sat in Denver District Judge Kandace Gerdes’ courtroom early Monday afternoon awaiting the verdict jurors took four hours to reach.

The strain of Moses-EL’s 10,317 days behind bars was evident in the face of his son, Anthony, who was 3 and riding on the handlebars of his father’s bike in August 1987 when police stopped them and hauled his dad away.

The enormity of the stakes was obvious in a defense lawyer’s wringing hands, the prosecutor’s shaking leg, and the ready stances of the dozen or more sheriff’s deputies posted in and outside the courtroom for security.

Back straight, head tall, and eyes wide open, Moses-EL sat steady and calm waiting to hear if the case that has eaten half his life would swallow the rest of it, too. If he has learned anything over the years, it’s patience.

The judge walked in at 1:19 p.m. and warned everyone that displays of emotion would not be tolerated in her courtroom. Then everyone rose and the jurors filed in with a collective ease that buoyed the crowd in the gallery.

Their verdict was unanimous. Not guilty on all counts.

What followed next was a group hug among the legal team and supporters who embraced Moses-EL and his exoneration fight and has, over the years, coalesced as a community. Behind him, they walked a path of camera flashes and fuzzy microphones out of the courthouse where, suddenly, everyone wanted to hear from the man the system had worked so long to silence.

“Yeahhhhh,” Moses-EL told reporters. “Oh yeahhhhh!”

What can you say? How do you feel? What do you think? What were those 28 years like? How did you withstand it? Why did this happen? What was broken? What can be fixed? What’s next? Where will you go? What will you do? Who might you sue? How long would that take? What did this cost you? What does this mean? What’s the moral of this story?

Moses-EL said his innocence had grounded him and that his faith had carried him. He said truth is unbreakable, no matter who tries bending it and no matter how hard or how long. He said he wants a quiet, peaceful life and aims to help other prisoners facing bum raps. He thanked Allah and his mom, who didn’t live to see him exonerated. And he thanked his lawyers, investigators, friends and family who broke from the circle of journalists and walked a few blocks toward lunch.

On their way, an off-duty Denver sheriff’s deputy saluted, two skateboarders stopped to look, and three drivers honked at the procession. A young woman heading into the Denver Art Museum asked, “There was a verdict? Not guilty? Aw, thank goodness. Thank God.”

In warm autumn afternoon, Moses-EL and his people took over the terrace of a restaurant that overlooks History Colorado Center. “Check this out. Let’s set this straight,” a friend of Moses-EL called out, as if asking the building itself to record that moment of history. “Brother Moses is innocent! Always has been.”

There was champagne. There were toasts. There were stories about decades in prison, moments of despair, weeks of court hearings, and years of waiting for this day. There were chicken wings, crab cakes and group shots of gratitude and relief.

“This is the best day of my life,” Moses-EL told me.

He took time to eat it up, soak it in. He took care to thank everybody, including the waiter and waitresses, for helping him. He took phone calls from friends in prison and family in Baltimore who wished they were there to celebrate.

After all, there’s nothing sweeter than an exoneration. And also nothing sadder.

Sad because every wrongful conviction is, in effect, a cold case. If Jackson had been questioned and prosecuted for the assault in the first place, he likely wouldn’t have raped – among who-knows-many-many others – a mother and her 9-year-old girl at knifepoint six years later.

And sad because locking up innocent people and throwing away the key makes the public even more distrustful of an already wayward  justice system. It should gall every Denverite that city authorities let “The people v. Clarence Moses” rot for nearly three decades in our names.

Mayor Michael Hancock released a video Tuesday assuring residents that city policy makers and law enforcers will stand up to government overreach and civil rights abuses under a Trump presidency. “I want to be clear. You can count on me, and you can count on your city. We’ve got your back,” the Mayor said.

That same day, Hancock wouldn’t comment on city authorities’ own overreach and abuses against Moses-EL – a case  for which Hancock’s administration likely will be named in a civil rights lawsuit. Among the many questions for which the city has to account is why its police department ignored Jackson, who should have been a prime suspect in the investigation, and let him roam free to commit at least two rapes in the 1993.

For his part, Morrissey has spent years refusing comment on Moses-EL’s criminal case because it was pending in court. Now that it’s over, Morrissey still won’t talk about why, after ample evidence of a wrongful conviction, he forced an innocent man to spend years behind bars for the sake of “victim advocacy.” “I forwarded your invitation to Mitch and he is declining,” his spokeswoman, Lynn Kimbrough, wrote in response to my request for an interview.

There’s footage of Morrissey defending his handling of the case in an interview I did for The Denver Post in 2007. 

Morrissey wanted the video shot in front of a wall of law books in his office. I remember how he checked his hair and straightened his tie before the camera started rolling. After his string of mistruths, contradictions and chest puffing about the case, I asked if he could empathize with Moses-EL or put himself in his shoes:

“No,” he told me. “I’ve never raped anybody.” 

Photo by Marie-Dominique Verdier.

On Jan.  21, 2016, nearly one year to the day before he will be sworn in as president of the United States, Donald Trump gave an interview to Field & Stream magazine on the issue of public lands.

Republicans had been talking a lot, as they continue to do, about transferring the control of federal lands to individual states, which would then be able to manage — or sell — the lands as they saw fit.

Trump bucked his party line. “I don’t like the idea,” he said, “because I want to keep the lands great, and you don’t know what the state is going to do. We have to be great stewards of this land. This is magnificent land.”

In the same interview, Trump was asked about the mixed-use nature of public lands. How would he balance energy extraction with recreation, with conservation?

Here, he returned to a more Republican stance. “Well, I’m very much into energy, and I’m very much into fracking and drilling,” he said. “I am for energy exploration, as long as we don’t do anything to damage the land.”

The fate of public lands is of paramount concern to Coloradans. The state is home to more than 23 million federally-owned acres, including 14.5 million acres owned by the U.S. Forest Service (USFS) and 8.3 million owned by the Bureau of Land Management (BLM). In terms of percentage of total land set aside for public use, Colorado ranks ninth among all 50 states.

One recent poll found that 76 percent of business leaders across the state believe that elected officials here should advance policies to conserve public lands; another found that 67 percent of Colorado voters would prefer a candidate who proposed more protections for public lands, while only 20 percent of voters signalled a preference for a candidate who would open up such lands to more private development. Still, fossil fuels are a major facet of Colorado’s economy, and Coloradans generally oppose an outright ban of natural resource extraction on public lands.

Though Trump’s own outdoorsmanship doesn’t extend much beyond the golf course, his two eldest sons, both avid big game hunters, are proponents of federal lands. Donald Trump, Jr. has been outspoken about his desire to “keep public lands public and accessible.” He is also a believer in multiple uses: He told Mesa County Republicans in September that “We can have grazing, we can have energy, we can have hunting and fishing on the same lands.”

Balance has always been a critical part of federal lands discussions. How can Colorado balance the interests of hunters, anglers, campers, ranchers and drillers, tapping the land’s economic potential while preserving it, in all its splendor, for future generations?

To call Trump’s policies on climate action and environmental conservation unpredictable is an understatement. Throughout his campaign, he threatened to back out of the Paris climate agreement, to “cut” the Environmental Protection Agency and to bring back lost coal jobs while also boosting the natural gas industry, two goals that, as many have pointed out, are at odds with one another. Trump called a carbon tax “job-killing,” said the Clean Power Plan was “stupid” and, of course, infamously tweeted that the concept of global warming was created by the Chinese. On Tuesday, he told the New York Times that he will “have an open mind” towards climate change policy and is “looking at it very closely,” but also said that windmills “don’t…work at all without subsidy” and “kill all the birds.”

In the weeks leading up to his inauguration, as he begins to appoint his cabinet, Trump’s already murky stances on important environmental issues have become increasingly uncertain. Those two comments in Field & Stream say next to nothing about the actual policies we can expect, but they do help to summarize the two main concerns environmentalists have about public lands under a Trump administration: Who will manage them, and how will they be used?

Far more remains unknown than known about how Trump’s presidency will affect the land that has drawn so many to Colorado. The Colorado Independent spoke with several experts to see what we might expect.

Q: Will President Trump transfer control over federal lands to Colorado?

A: It’s not up to him — but Republicans sure want to.

The first question that many people ask regarding federal lands under President Trump is about control. The BLM and Forest Service, which are funded by federal dollars, currently manage all federal lands across the U.S. under the same rules and processes. That means permits, environmental impact statements and lease sales face the same requirements in Alaska and Nevada as they do in Colorado and Oregon.

In Washington, D.C., Republicans have spoken widely about their desire to transfer control over federal lands to the states, which would then be able to manage or privatize them at will. The official GOP platform calls on Congress to “immediately pass universal legislation providing for a timely and orderly mechanism requiring the federal government to convey certain federally controlled public lands to states.”

Aaron Weiss, spokesman for the Center for Western Priorities, a Denver-based conservation advocacy group focused on the protection of communities, land and water in the American West, called this platform “a disaster.” And Trump’s stance? “As with so many things on the Trump campaign, he’s never really had a specific position on it,” Weiss said.

Trump’s comments in Field & Stream and beyond demonstrate a lack of enthusiasm for the idea, but the Republican party platform is what matters here: Congress, not the executive branch, gets to decide whether or not federal lands are transferred to the states.

Jon Goldin-Dubois, the director of Western Resource Advocates, said there is no way that states could take control of federal lands without Congressional support. He cites a recent fight in Utah in which the state attempted to take control of certain swaths of federal public lands. A bipartisan group of federal experts and politicians from across the West who met to discuss the possibility reached, as Golden-DuBois put it, “a unanimous agreement that there is no way states can take over these lands that is in accordance with federal law.”

He added, “The lands are federal; they have always been federal. This idea that we can ‘take them back’ is laughable.”

But though states can’t override Congress and claim federal lands for themselves, there’s nothing preventing the legislature from handing them over. Republicans argue that federal land transfers would save federal money, improve the tax bases for states that sell the lands and encourage greater land use for lucrative mining, ranching and logging.

Despite the GOP platform, Coloradans on both sides of the aisle tend to dislike the idea of state control over public lands. In 2014, then-gubernatorial candidate Bob Beauprez fell out of step with public opinion when he called for the transfer of federal lands to Colorado. That year, a statewide poll found that 59 percent of Coloradans felt the costs of administering such lands were too high.

Goldin-Dubois said that the idea of Congress dumping public lands into state hands was unlikely, saying, “There is a whole legal infrastructure precedent that would argue against that being possible.” And the GOP platform called on leaders to transfer lands to “all willing states,” for which Colorado would likely not qualify.

Plus, environmental experts like Goldin-Dubois say that the question of interest will likely be a major driver on this issue. Both houses of Congress are currently deeply divided, but “the reality is that public lands transcend the public partisan divide,” said Goldin-Dubois.

“There are Republicans and Democrats, hikers and sportsmen and mountain bikers, people who love to hunt and fish — they love these lands, and they want them to be managed by the current land management structure,” he said. “I think anybody who wanted to take that on would do so at their own peril, because [federal public lands protection] has the kind of bipartisan support that doesn’t exist for a lot of issues.”

And perhaps that support wields influence. Beauprez, who recently admitted to being on Trump’s shortlist for Interior Secretary, lately has kept quiet about the issue. In an interview with the Denver Post regarding the position, he didn’t mention lands transfer, instead calling for a “symbiotic fit” between various land uses. Neither Beauprez nor Ken Salazar, the previous Interior Secretary under President Barack Obama, could be reached in time for publication.

Q: Will Colorado see more energy extraction on public lands under a Republican administration?

A: National policies will likely change, but the impact on Colorado is unclear

The use of public lands, in the words of Western Resource Priorities’ Weiss, is “a much bigger concern” under Trump than a transfer of lands to the states. Unlike the transfer issue, which would require Congressional action, land use falls under the control of the president-appointed Interior Secretary. Weiss spent much of last week recording an episode of his new podcast, Go West, Young Podcast, on this very topic.

The Secretary of the Interior appoints the chief of the BLM, which oversees more public land than any other federal agency. That includes more than 245 million “surface acres” and 700 million acres of subsurface minerals across the country. The BLM manages federal lease sales for oil and gas drilling, conducts environmental impact statements for proposed resource extraction projects and approves new drilling permits. And though many of the rank-and-file BLM employees can expect to keep their jobs, a new BLM chief appointment will likely cause trickle-down changes in the agency’s leadership down to the state level.

Officially, the BLM’s mission is to “sustain the health, diversity, and productivity of the public lands for the use and enjoyment of present and future generations.” That means it works with states to determine how best to manage land use for a variety of interests, including habitat preservation, recreation and energy extraction.

But many environmentalists worry that a Trump appointment could shift this balance in favor of more fossil fuel extraction — at a time when climate change calls for less drilling, not more. In addition to Beauprez, the President-Elect’s shortlist for Secretary of the Interior currently contains oilmen Forrest Lucas and Harold Hamm, venture capitalist Robert Grady, former Alaska Gov. Sarah Palin and former Arizona Gov. Jan Brewer.

Of these choices, Weiss said that Grady would be preferable, saying that the avid sportsman “appears on paper to be a solid Republican choice, certainly compared to other choices that wouldn’t appear to have the policy knowledge to be Interior Secretary.”

Weiss points out that an appointee from the oil and gas industry, like Hamm or Lucas, would have friends and businesses that would stand to benefit from increased drilling on Colorado’s public lands. The Interior Secretary wouldn’t be able to immediately overhaul land use policies, but could certainly streamline permitting processes to make such drilling easier and cheaper.

That change is appealing to the oil and gas industry. David Ludlam, the executive director of the West Slope Colorado Oil and Gas Association, said that “the Colorado federal leasing program has been devastated under [the Obama] administration,” and calls two additional layers of environmental review that have been implemented over the past eight years “duplicative and unnecessary.”

Ludlam doesn’t have a stance on land transfer — “It’s not something we debate, I don’t see it happening soon” —  but he expressed disdain for the current environmental review process for new drilling permits. Some, he said, have been undergoing review for nearly a decade. Having so much federal land puts Colorado at a disadvantage, he said, because states can approve drilling permits “in under two weeks.”

Ultimately, said Ludlam, “I think this administration will have a greater appreciation for what we do, not only for the state at large but for the emerging global economy.”

Pete Maysmith, director of Conservation Colorado, disagrees. Under a Trump administration, he said, “It could well be open season on our public lands here in Colorado, but we still don’t know exactly what that looks like.” He added that, depending on his Interior Secretary appointment, Trump could well usher in “a drill, baby drill attitude.” Goldin-Dubois, too, expressed fears of potential “harmful, unbridled energy development on these lands.”

Interior Secretary Sally Jewell addressed such fears during her visit to the Colorado Capitol last week to officially cancel 25 oil and gas leases in the beautiful Thompson Divide area near Aspen. The cancellation, a hard-won compromise celebrated by a diverse group of Coloradans, prompted questions as to whether Jewell was hustling to pass land protection measures before Trump’s inauguration on Jan. 21.

Ludlam and much of the industry saw the cancellations as an assault on their property rights. “If we can just get some certainty and get someone who will be an honest broker in the granting of permits, that will be a huge step for us,” he said.

Jewell hadn’t yet heard anything from the Trump transition team, but she said she and her staff were “geared up and ready” to begin working with them. The Secretary assured the audience that she was simply “tying up loose ends” on conservation projects so that the next administration could have a fresh start.

Mike Freeman, a Colorado environmental attorney with Earthjustice, was less optimistic, wondering if Jewell wasn’t simply “learning from the experience of the [George W.] Bush administration, where a lot of efforts to open up public lands to the oil and gas industry resulted in years of contentious battles to protect these lands.” In his mind, Jewell and the Obama administration could be protecting lands “precisely to avoid the kind of drawn out battles that we’ve seen in the past.”

BLM Colorado spokesman Steven Hall wouldn’t speculate on what changes could be expected under a Trump administration, saying only that BLM land use is “always going to be a balancing act,” and that “depending on where you stand, there are always going to be different points of view on how those lands will be managed.”

As to Colorado specifically, Gov. John Hickenlooper said that Colorado simply doesn’t have the same potential for increased drilling that other western states do. “[Colorado]…we don’t have many lands that are presently excluded that could be opened up,” he told Colorado Public Radio this week. “We’re not going to see a lot of change in Colorado. There are, perhaps, other parts of the American West where more land that has higher potential will be opened up. The bottom line is I don’t think there’s very much of it.”

It’s crucial to understand the importance of price when it comes to natural resource extraction on federal lands. Regardless of the permitting process for drilling, oil and gas companies won’t extract fuels if there is no market for them. Colorado saw a boom in production following the improvement of fracking technologies, but with prices low, more operators are keeping wells idle, waiting for the market to recover.

“In some sense the free market is already a check on oil and gas and coal production on public lands,” said Weiss. “If you increased fracking on public lands, that only serves to lower prices more.”

Lower gas prices are not only detrimental to oil and gas operators, but they further harm the already-struggling coal industry Trump has promised to revive. Coal companies, Weiss said, are already sitting on unused coal leases that they aren’t mining because prices are simply too low.

Hickenlooper agreed. “The real reason coal has gone downhill so dramatically is how rapidly the price has gone down on natural gas, and how rapidly the price has gone down on wind,” he said. “I think it’s a steep hill to get coal jobs back.”

Q: What about national monuments in Colorado and beyond?

A: It all depends on strategy

Environmental groups have been imploring President Barack Obama to proclaim the Bears Ears area of southern Utah a national monument, a power granted to him by the 1906 Antiquities Act. Then-President Theodore Roosevelt passed the Antiquities Act to allow presidents to protect areas of historic or scientific interest without having to go through Congress.

Now, with a Trump administration looming and uncertainty surrounding the fate of these lands, the pressure is on. Groups are also pushing for the protection of sites like the perimeter of the Grand Canyon, which is otherwise at risk for uranium mining, and an expansion of Colorado’s Rio Grande del Norte National Monument, near Durango.

There’s a mentality that Obama, who has already established 23 national monuments, should use his authority to protect these lands from a president who may or may not want to drill or mine them.

However, there’s nothing saying that Trump couldn’t simply repeal these presidential proclamations. Mark Squillace, a professor of natural resources law at CU Boulder, said there’s a chance that Trump would not only overturn national monuments established under Obama, but that Congress could even seek to repeal the Antiquities Act. Squillace wonders if it wouldn’t perhaps be preferable to not declare any new monuments, and thus not draw any extra attention to them.

At the same time, Squillace and others acknowledge that there is a lack of precedent for repealing presidential decrees on national monuments, and such an attempt would more than likely see backlash.

“If Republicans were to mount an attack on the Antiquities Act you would see strong, unified opposition from conservation groups across the board,” said Weiss. He’s even “pretty confident” such a proposal in the U.S. Senate would warrant a filibuster.

Conservation Colorado’s Maysmith has no doubt that environmental concerns are about to have a rough ride. “There will be myriad attacks coming out of the Trump administration in the first 100 days, and in the next four years,” he said. Yet he remains stubbornly optimistic about the state’s ability to overcome dangerous policy proposals.

“In the wake of what we expect to see in terms of environmental attacks at the federal level, we will see a shift in states being the focus of environmental work,” he said, recalling a major tenet of the Paris Climate Talks, where state and local governments were encouraged to step up. “We need to be incredibly vigilant.”

Said Center for Western Priorities’ Weiss, “Call us concerned and cautious.”

Photo credit: Kelsey Ray

A slightly different version of this story first appeared in the Boulder Weekly. 

When James Sines shopped for homes in 2007, he thought he knew how to pick a neighborhood that would never be drilled for oil or gas. His nephew, a geologist, told Sines to ask the real estate agent showing a house in Broomfield’s Anthem development whether the deed included subsurface mineral rights. The real estate agent’s answer was vague. Sines pressed the agent, and learned that the mineral rights beneath the otherwise spacious floor plan would not belong to him.

Sines crossed the highway to a development called Wildgrass where orderly rows of executive homes were under construction. “The first question I asked was, `Do I own the mineral rights?’” recalled Sines. The answer was yes, and he bought the house.

Nearly a decade later, Sines, a manufacturing consultant, learned that in Colorado, owning your mineral rights doesn’t necessarily protect you from drilling. An arcane provision in Colorado law allows energy companies to drill under residential communities even when homeowners own their mineral rights but don’t want to lease them.

It’s called “forced pooling.”

Forced pooling, Sines and his 509 Wildgrass neighbors have learned, gives oil and gas companies the right to drill under their property, as long as the company makes a “reasonable” offer to mineral rights owners and at least one homeowner signs a lease. Even if the rest of the community opposes the development and declines to lease their rights, an energy company can apply to the Colorado Oil and Gas Conservation Commission (COGCC) for a forced pooling order, and the COGCC will almost certainly approve it.

Forced pooling came to Wildgrass in the form of Extraction Oil & Gas, a company specializing in developing wells near Colorado housing developments – and generating conflict in its wake.

Wildgrass residents first heard about Extraction in a letter from High West Resources, Ltd. dated June 24, 2016. The land resource company, which represented Extraction Oil & Gas, LLC, offered to lease each homeowner’s mineral rights in exchange for a $500 signing bonus and a 15 percent royalty on an undisclosed amount of potential oil and gas revenue. The letter ended with this pressure-infused sentence, in bold. “This offer to lease is valid for fifteen (15) days from the date of this letter.”

Some Wildgrass residents assumed the letter was a Front Range version of a Nigerian get-rich scheme and tossed it. Others knew they owned mineral rights under their homes and had no intention of leasing them to High West, Extraction or anybody else. Some say they never received the notice at all. A handful signed the lease. Still others were worried, even panicked, especially when they found out that Extraction was threatening Wildgrass residents with forced pooling if they didn’t sign.

For Sines, it was a sign he’d better sell. “It can’t be good for property values,” he said, standing near the “For Sale” sign planted near his curb on an early fall day. “There can’t be a return from this leasing that’s more than the impacts on the community’s property values.” He said he has too much sunk into the house to watch his equity disappear, and doesn’t believe that any politician, state regulator or lawyer is going to ride in on a white horse to help. “We’re definitely getting bent over,” said Sines. “I’m outta here.”

For many others in Wildgrass, however, it was time to fight back.

The Lowell Pad, where Extraction Oil & Gas plans a 42-well site, between Wildgrass and Anthem developments.

1889, meet 2016

The Pennsylvania Supreme Court established the “rule of capture” in 1889 during the heady early days of the oil explosion, differentiating an underground mineral right from a surface landowner’s right. The idea, put simply, was “drillers keepers”— whoever stuck a straw into the ground and sucked oil to the surface could keep it, even if the oil flowed from under a neighbor’s property.

That didn’t work so well. (Remember the Daniel Day-Lewis line, “I drink your milkshake,” from There Will Be Blood?) The law evolved to address the increasing number of conflicts that emerged. One result  was to further codify this notion of “split estates,” where one person could own surface property, but another person (or corporation) could own the mineral rights below.

As oil companies launched their 20th century catapult to become among the most profitable businesses in history, they hired sophisticated lawyers and lobbyists to write legislation that favored their industry. They ensured those laws would pass by using brute political force and slick public relations campaigns. Ensuing laws gave mineral owners preferential rights to force surface owners to accommodate their rigs, often with disastrous consequences to the surface owners’ domestic tranquility, not to mention their water quality and health.

(The oil and gas industry recently spent millions of dollars in Colorado to prevent two initiatives from getting on this year’s ballot that would have placed some limits on oil and gas development, and spent millions more to pass November’s “Raise the Bar” initiative that will make future citizen-led ballot issues even tougher to pass.)

Later, the concept of “compulsory pooling” surfaced, giving oil and gas companies the right to access underground hydrocarbons even when they didn’t own them or acquire the rights to lease them. The idea, said CU Law School Thomson Visiting Law Professor Bruce Kramer, was to ensure that a homeowner who didn’t want oil and gas rigs on their property “cannot deprive their neighbor the right to develop them.”

Ironically, when two cities in Kansas passed the first “compulsory pooling” laws in 1927, according to Kramer’s analysis, they aimed to limit the number of urban drilling rigs. At the time, Kramer said, “thousands and thousands of wells were being drilled,” since a mineral owner risked having a neighbor drink the mineral owner’s milkshake if they didn’t sink a well themselves. Forced pooling, Kramer said, allowed multiple mineral owners to share the financial benefits of drilling without creating an inefficient mess — or being held hostage by holdouts.

Fast forward to the drilling boom of the last decade, when a combination of new, horizontal drilling technology and more sophisticated hydraulic fracturing (fracking) techniques opened up vast frontiers of previously unrecoverable deposits of oil and gas. Oil and gas companies received exemptions from complying with provisions of federal environmental laws such as the Clean Water Act, as famously happened in 2005 when then-Vice President Dick Cheney’s controversial “Energy Task Force” allowed energy companies to withhold information about the toxic chemicals they used for hydraulic fracturing.  

States like Colorado also legislated that oil and gas companies would receive preferential treatment on multiple fronts. The laws allowed energy companies to create larger and larger milkshake pools and to snake their straws for miles to access almost any fuels they wanted, including near schools, water sources – and under residential communities like Wildgrass.

Over the past decade, residents, cities and counties facing oil and gas development in their backyards have objected. In case after case around the state, they have been systematically overridden: by state law, COGCC regulations and the courts – all interpreting laws that the industry essentially wrote. In May 2016, the state Supreme Court also ruled in favor of the industry by invalidating voter-approved restrictions on new oil and gas developments in Ft. Collins and Longmont, with repercussions for Lafayette, Boulder County – and Broomfield.

“The government is not supposed to pick favorites,” said attorney Matthew Sura, who represents Wildgrass and other communities facing forced pooling and neighborhood drilling. “But the oil and gas industry is clearly their favorite here in Colorado.”

With the support of the COGCC’s interpretation of its statutes, operators in the state are increasingly using forced pooling as a tool to work in more densely populated areas. Extraction Oil & Gas has 20 pooling applications on the COGCC’s December docket, many of them in and around the city of Greeley. A conservative estimate indicates there are at least 15,000 potentially affected mineral owners in those 20 applications alone, including family estates and corporate owners. Statewide, according to COGCC Director Matthew Lepore, the Commission issued about 540 orders per year between 2012 and 2015. About 40 percent of those were pooling orders, where multiple mineral owners were consolidated into one company’s drilling proposal, with and without the owner’s consent. The COGCC does not track how many owners voluntarily signed leases, and how many were “force-pooled.”

In an email response to questions, Lepore wrote that the Commission has not yet encountered a situation where “all or nearly all” of a large number of mineral owners in a spacing unit “are united in opposition to leasing their minerals.” He said that if there is significant resistance, companies may eventually decide it’s too expensive and cumbersome to deal with so many “non-consenting interest owners.” At present, however, “the Colorado the Oil and Gas Conservation Act does not contain a minimum leased or participating acreage percentage requirement for a pooling order to be entered (thus, in theory, a 1% mineral owner could pool the other 99% owners),” Lepore wrote.  

Mike Freeman, an attorney with Earthjustice, a non-profit environmental law organization, said that forced pooling laws were written long before “unconventional” gas plays allowed operators to access minerals from miles away. “The mechanism they’re using has really outlived its usefulness,” he said.

Law professor Kramer agrees that most legislation around the country has not been updated to consider new technologies and human settlement patterns. “Most pooling clauses contained in oil and gas leases were drafted with vertical well drilling in mind,” Kramer wrote. In a phone interview, Kramer said that some states have altered their laws to give more weight to the property rights of surface owners. Compulsory pooling laws are still prevalent around the country, he said, but are not inviolate. “If a legislature wants to redraw the balance given to people who don’t want to develop their rights,” Kramer said, “the legislature is free to do so.”

COGCC’s Lepore said that under current law, if the COGCC ascertains that the spacing is appropriate and the operator meets a couple stipulations, it normally grants such requests. Even homeowners who own their mineral rights have very few legal options to fight a company that wants to drill. “Essentially, an unleased mineral owner can object on grounds that the applicant failed to offer the mineral owner reasonable lease terms,” Lepore wrote, or if the lease didn’t allow homeowners to receive their fair share of the proceeds. In other words, simply not wanting it to happen in your backyard – even if you own the mineral rights –  is not a valid legal reason to object.

“We didn’t even think it was possible to frack a neighborhood.”

Extraction spokesman Brian Cain recently sent a statement to the news media regarding his company’s  Broomfield plans, stating that it chose locations “to be as far as possible from residential housing.” It promised to provide “professionally design [sic] landscaping, at each site before commencing activities to address visual impacts of these operations. The landscaping will involve rolling berms covered with natural grasses and trees inspired by Colorado’s flowing landscapes and vistas.” According to Cain’s statement, the company also planned “Best Management Practices and latest development technology” to “deliver the safest, cleanest, and best project to the community.” Cain did not respond to several emailed requests for further comment for this article, and his voice mailbox was full.

For many people living in residential enclaves like Wildgrass, applying the forced pooling provision in 2016 to a densely inhabited residential development where the vast majority of residents don’t want oil and gas drillers is unfathomable. “We didn’t even think it was possible to frack a neighborhood,” said Wildgrass resident Bernie McKibben, expressing a sentiment shared by a rapidly growing number of urban and suburban residents around the state.

The forced pooling news hit Wildgrass residents like a cannonball. “At first I really thought the High West letter was a joke,” said Stephen Uhlhorn, an engineer who bought a house in Wildgrass when he moved from Florida three years ago with his wife, a physician, and their two children. Like many of his neighbors, when Uhlhorn started looking into Extraction’s forced pooling plans, he went from disbelief to anger and defiance. “This is suburbia!” he said. “You don’t expect oil rigs in suburbia.”

Uhlhorn is bewildered by the state’s willingness to allow industrial facilities in neighborhoods where it would be tough to get approval to build a new Walmart. “What’s next?” he wondered. “Are they going to drill under the 16th Street Mall? Apparently, there’s nobody that’s going to stop them.”

As Coloradans continue to debate local control over oil and gas development, how far well pads should be set back from schools and water sources, and what limits, if any, should be placed on the fossil fuel extraction industry in residential neighborhoods, the Wildgrass case study stands as a sentinel and a warning: if state-sanctioned drilling can happen there, it can happen in any neighborhood in the state that sits atop viable quantities of hydrocarbons.

Bernie and Linda McKibben, residents of Wildgrass. They are leading the anti-forced pooling efforts.

Welcome to Broomfield: “A great place to live, work, and play!”

To understand Wildgrass residents’ concerns about turning their tranquil suburban community into an industrial zone, one only has to drive north along county roads on the east side of I-25 out of Denver. Interspersed among large, new housing developments built by the biggest developers in the country such as Lennar and KB Homes are clusters of mini-refineries barely hidden by hay-bale walls and camouflaged by tan barriers the thickness of corduroy. There, oil and gas companies have built multiple wellheads and dehydrators, separators, compressors, pipelines and storage tanks within a stone’s throw of suburban backyard barbeques, swing sets and elementary schools. All these industrial sites are vulnerable to leaks, spills and explosions, and emit an array of pollutants, including benzene, ethylene and methane.

State regulators have only the barest grasp of the kind and amount of emissions that escape these facilities. The COGCC does not regulate air emissions, and the Colorado Department of Public Health and Safety (CDPHE) only inpects well sites about once every five years. (SEE RELATED STORY: TEXAS TEA)  Scientists have documented undetected leaks and inadequate methods of determining the scope of toxic releases. Researchers have documented multiple health impacts on people who live in close proximity to oil and gas operations around the country.

Nonetheless, Colorado state health officials still insist there is insufficient evidence to link exposures from neighborhood drilling to public health impacts in the state. Dr. Larry Wolk, the executive director and chief medical officer of the CDPHE (who is also a COGCC commissioner), recently told The Colorado Independent, “We don’t see anything to be concerned with at this point in time.”

Broomfield (population 65,065) is almost equidistant from where the Broncos play in Denver (15 miles) and the Colorado Buffaloes play in Boulder (10 miles). It has easy access to the Boulder-Denver turnpike, is about a 40-minute drive to DIA, and is home to consultants, professionals and business people who moved to this Front Range playground so they can ski on the weekends, send their kids to good schools and enjoy open spaces and views of the Continental Divide from their bedroom windows.

A Google-Earth-eye view of the Wildgrass development shows it as part of the swelling Denver metropolitan organism, with contiguous communities like Broomfield, Westminster, and Northglenn filling the remaining open spaces with tract homes and national chain strip malls. Broomfield itself has grown by almost 60 percent since the 2000 Census – three times the statewide average.

Entering Wildgrass a visitor drives past laser-carved sandstone that marks the neighborhood as distinct from the nearby laser-carved enclave, Silverleaf. Two-bedroom townhouses in the housing tract sell from the low $400s. Five-bedroom, 5,000-square-foot homes fetch $1 million. You pass the Holy Family High School, owned and operated by the Archdiocese of Denver (more on that later), which many Wildgrass children attend. On an early fall afternoon, Latino gardeners with leaf blowers patrol the yards, delivery vans unload new refrigerators and residents walk Labradors on leashes. It’s an unlikely spot for yet another new battlefront in the state’s fracking wars.

After Extraction’s sign-in-15-days-or-else letter circulated, a few upset residents wanted to know if they were alone in their outrage. They decided to take Wildgrass’s temperature, which is harder than you might think in a typical American exurban enclave, where people drive their Lexuses and Audis (and Priuses and Leafs) into garages adjacent to their homes, and rarely socialize as a community.

One resident, Bill Young, is an IT consultant who created an informational website about the drilling proposal, then conducted an online poll. About 300 of the 510 homeowners responded, he said, with 75 percent opposed to any oil and gas development and ready to fight. Among the remaining 25 percent, most said they felt like the deck was so stacked against them that resistance would be futile ­– and expensive.

A handful of residents happily signed on to Extraction’s plans.

Ryan Nygard, who moved here from Canada two years ago and who’s been working in the oil and gas industry for 12 years, said that many of his neighbors’ concerns about health and safety are overblown. “I have no problem with it,” he said, adding that he doesn’t dispute that a majority of his neighbors oppose Extraction’s plans. Nygard said that there’s a bit of a hypocrisy factor at play here as well, since most Wildgrass residents take hot showers and heat their homes using natural gas and drive their cars to the mountains to ski. Nygard also believes that there is more support for his position than has been expressed publicly – what he called the “Trump factor.” Nygard said he signed the proffered lease with Extraction – after he made sure it wasn’t a hoax.

A few Wildgrass residents hoped they’d receive six-figure annual payouts for agreeing to let their land be drilled. Yet those expectations are far out of line with Young’s estimates, based on information provided by Extraction, which put royalties for an average Wildgrass homeowner with a quarter-acre lot at about $3,000 over the first four years and maybe $100 a year after that. That’s hardly Beverly Hillbillies money.

Among those who became part of the de facto organizing committee against Extraction’s proposed development are Linda and Bernie McKibben. The couple moved to Wildgrass from Phoenix about 10 years ago with their two children. Bernie is an electrical engineer who’s worked in the mobile phone sector, and Linda is a 30-year veteran nurse who’s worked in many different healthcare settings, from cardiac care to home health. Neither self-identifies as environmental activists, and they are dumbfounded by the energy industry’s television ads that paint outraged suburbanites as “fracktivists.”

Linda notes that Wildgrass’s own covenants, codes and restrictions include a host of limitations of what residents can do with their property, from where they can park to what color they can paint their mailboxes. “There are all kinds of restrictions on what you can do here,” she said, “apparently unless oil and gas companies want to do it.”

The community sought legal advice. They couldn’t find a lawyer to take the case at first, either because the lawyers they consulted worked with oil and gas companies, or because even sympathetic lawyers said the law allowed forced pooling of non-consenting mineral owners, no matter how crazy it sounded to some Wildgrass residents.

They hired attorney Matthew Sura to give them a Forced Pooling 101 tutorial. He wasn’t optimistic, either. According to the documents Extraction had filed, the company wanted to drill up to 42 wells on the Lowell Pad that was north of Wildgrass but not technically on neighborhood property. The area to be horizontally drilled will also head towards the Anthem development to the north (where homebuyer James Sines had declined to buy), as well as land owned by the City of Broomfield and the Archdiocese of Denver to the south.

Extraction had gained the surface rights to drill from four spots along the Northwest Parkway corridor; the closest is a half a mile from Wildgrass but other locations will be less than 600 feet from the nearest Anthem house, across the highway. In its application to the COGCC for the Wildgrass development, Extraction listed ten pages of “unleased mineral owners.” Extraction had already received provisional support from elected officials in Broomfield, which is both a city and a county, even though its citizens had narrowly voted to institute a five-year fracking ban in 2014 that was annulled by the state Supreme Court in May.  

The upshot, attorney Sura told Wildgrass residents, was that “there was no statutory way to fight this,” and suggested using lease negotiations to limit the impacts on the community.

Wildgrass residents said they needed some time to digest all of this and organize. They successfully lobbied the Broomfield City Council to support their request to postpone a “spacing hearing,” a process that helps determine how many wells can be drilled in a specific parcel of land, which was originally scheduled for Aug. 29. The COGCC agreed, and the hearing was rescheduled for Dec. 12. On Monday Nov. 28, the hearing was rescheduled again, for Jan. 30, 2017.

If the spacing is approved, as expected, a forced pooling application will likely follow.

In a phone interview, Broomfield Mayor Randy Ahrens, who describes himself as “an oil and gas guy” from his years as an engineer in the industry, said he is “appalled” by Extraction’s plans on several counts. First, Broomfield purchased the mineral rights near its reservoir from Noble Energy years ago because “we didn’t want to worry about oil wells” close to a water source. “We didn’t buy them so somebody else could force pool them,” Ahrens said. Second, in Extraction’s initial negotiations with the city, the company offered to consolidate several dozen well pads down to four, with a total of 40-50 wells. Now it appears that Extraction is planning up to 140 wells. “I’m appalled at the size of the operation,” said Ahrens, which would create a “major industrial site” that doesn’t fit with the nearby residential neighborhoods, including Wildgrass and Anthem. Ahrens said he doesn’t hold out hope that the COGCC will intervene, since “they’re going to rubber stamp anything.” Broomfield is exploring its options, Ahrens said.  

Current Extraction Oil well in the open space west of Wildgrass. Extraction says they will close this well.

Making a PowerPoint

When Extraction executives heard that Wildgrass residents were going to speak with attorney Sura in July,  they tried to invite themselves to the meeting. Instead, residents agreed to arrange a separate meeting with Extraction representatives.

By the time Extraction presented to the Wildgrass residents at the Broomfield Rec Center on July 25, many residents were still seething over the strong-arm tactics of the initial High West letter. Others were frustrated that they had to deal with this at all and wished Extraction would just go away.

About 80 residents milled about before the meeting, sampling pastries and coffee provided by Extraction. Casually dressed (pressed khakis and white shirts, no ties) men from Extraction stood around posters with maps of Wildgrass and the proposed drilling sites, answering questions.

The 7 p.m. start time came and went, and the crowd grew restless as the main presenter, Boyd McMaster, fiddled with a recalcitrant PowerPoint presentation. About 45 minutes into the scheduled two-hour presentation, the presentation sprung to the screen. This was not a good sign to many of the attendees, who texted incredulous remarks to each other. “This is the company we’re supposed to trust with drilling under our bedrooms?” wondered IT consultant Young.

McMaster affably laid out Extraction’s plans to the skeptical audience, promising a question-and-answer session at the end. He said that many of Extraction’s employees lived in the area, and he understood there were concerns. “We’re not in the middle of the prairie here,” he said. “We’re in the middle of your community.” McMaster said that he and his team would always be available to answer questions, and shared contact information with the crowd.

He described how they would use horizontal drilling methods to minimize the number of well pads. They would cap several older wells scattered around the county. They would build tall sound walls during construction and would follow the letter of the law. “Colorado has the strictest regulations of this industry than any place in the world,” he said, parroting the industry’s stay-on-message message.

If the industry has been fracking this way for 60 years, then the Dodgers are still playing in Brooklyn.

Then he took on the “F-word,” fracking, by calling it “hydraulic stimulation,” and said that the industry has being doing it for 60 years. This implies that nothing is different between the way companies drilled when Dwight D. Eisenhower was president and the recent technology revolution that allows companies to unlock mile-deep “tight-sands” reservoirs of hydrocarbons using millions of gallons of water mixed with chemicals and biocides. If the industry has been fracking this way for 60 years, then the Dodgers are still playing in Brooklyn.

New technology has driven an unprecedented oil and gas boom (and bust) over the past decade – in Colorado and around the world. The boom slowed after a precipitous drop in oil prices (oil plummeted from more than $100 a barrel in April 2015 to less than $30 a barrel early this year before rebounding to around $50 recently), but has not halted companies like Extraction from preparing for a further price rebound­. On Tuesday, Oct. 11, Extraction Oil & Gas held an initial public offering of 33.3 million shares of its stock on Wall Street. The estimated value of the company exceeded $3 billion.

In the taxonomy of oil and gas companies, mid-sized operators like Extraction fill a niche that investors might characterize as bold, but others call inherently antagonistic. “They take toxic assets that other people have walked away from and develop them,” said an independent operator who says Extraction is being overly aggressive in residential communities. The operator declined to be named because he works with one of Extraction’s shareholders.

When it became clear that Extraction’s presentation was going to continue until the attendees’ babysitters would expect to be relieved, one resident asked about the promised question-and-answer portion of the show. McMaster started riffing through FAQ questions he had written down before the meeting. When a resident insisted that Extraction take questions from the live audience, McMaster did.

One resident wondered where Extraction would get the water to do the fracking and where the produced water would go, referring to the byproduct of fracking that includes millions of gallons of hydrocarbon- and chemical-laced water that needs disposal. Would Extraction pipe it or truck it to injection wells? Where were those? Weren’t injection wells the cause of earthquakes, like what was happening in Oklahoma?

The vague answers McMasters gave were disconcerting. The produced water, he said, would be taken to an injection well in Weld County, at least 12 miles away. That didn’t help much, said Sally Kaplan, a Wildgrass owner who attended the meeting. “They didn’t tell us where they were going to get the water from, or where the wastewater was going to be stored.” Just because it wasn’t going to be dumped in their backyard, Kaplan said, “doesn’t mean we don’t care about it.”

Others wanted to know about the project’s timing. Although it only takes a few weeks to drill each well, McMaster told them, there would be quite a number of wells drilled from the pads, and construction would probably take about two years.

That only made some residents even more nervous about their home prices and peace of mind. On a table along with Extraction’s brochures was a letter addressed to the Broomfield City Council and signed by six “concerned realtors.” The letter stated that the proposed oil and gas operations “will have a profound impact on the surrounding property values and the quality of life for Broomfield residents.”

The Extraction meeting didn’t allay many Wildgrass residents’ concerns about safety, nuisance, stress, health complaints, air quality issues, impacts to water quality and availability and effects on their children and property values. “We were supposed to say, ‘We’re the one percent, we love hydraulic stimulation and we love America,’” said one homeowner, who declined to be named because of the sensitive nature of their job. “That’s not gonna happen.”

It didn’t take long after the July meeting for residents to take McMaster up on his offer to answer their questions. At least five residents said they never received replies.

“Nothing but radio silence,” Uhlhorn said.

View from the Lowell Pad, looking NE across Anthem, where Extraction Oil & Gas plans a 42-well site, between Wildgrass and Anthem developments. The drill pad would reach under Anthem and it’s open space.

Moving to “Doomfield”

At Wildgrass, resistance to forced pooling doesn’t seem to follow partisan lines. Unlike Boulder County, the enduringly liberal Democratic enclave to the west, Broomfield has more unaffiliated voters (16,250) than registered Democrats (13,020) or Republicans (12,550). Issues like local control, property rights and government bullying resonate pretty strongly among Republicans, and issues like environmental protection and climate change are trademark Democratic issues.

Wildgrass residents fanned out to gather information, employing an array of tripartisan expertise from lawyers, accountants, financial analysts, healthcare professionals, engineers and others among them. Many are reluctant conscripts, like IT security consultant Young, who has lived in Wildgrass since 2010. “It took it landing in my backyard for me to get involved,” he said.

However grudgingly, Young joined the fray and started researching. He noted that in the Extraction presentation, “there was not a single slide about surface spills.” So he conducted his own search and discovered seven reported surface leaks in Broomfield in the past five years from other operators. Perhaps even more disturbing for Young, the city of Broomfield’s Public Health and Environment Division had documented that last year, 22 out of the 38 active oil and gas sites in Broomfield had leaked. Neither the COGCC nor the Colorado Department of Public Health and Environment had detected the leaks.

Extraction, Young discovered from COGCC documents, had 17 documented spills and releases around the state (this did not include two recent spills in November), several of them due to “human error.” He also learned from  the COGCC website that there had been 66 complaints filed against Extraction for everything from noise and odor to increased traffic from trucks carrying equipment to and from drill sites.

Other residents started digging into water issues. Hydraulic fracturing requires large amounts of water, and also “produces” water that comes up co-mingled with the mile-deep oil and gas. One new well pad would be located between an existing reservoir and a planned reservoir, meant for recreation as well as for city drinking water storage.

Wildgrass residents reached out to the Archdiocese of Denver, which owns land and mineral rights adjacent to Wildgrass under Holy Family High School. Since Pope Francis expressed concern about climate change and environmental stewardship in his Encyclical in May 2015, Wildgrass residents thought there might be some opening to find an ally in the Church.

Initial outreach to the Archdiocese was met with a cool response, so Wildgrass residents printed up a flier with the headline in red, bold caps: FRACKING UNDER HOLY FAMILY SCHOOL and distributed it to parents.

Wildgrass resident Jean Lim, a professor at the Jesuit-run Regis University, says that the impacts on her family worry her, but that there are also larger issues to consider. “The Pope’s Encyclical was a strong statement of environmental concerns on a global scale,” Lim said. “It should have the serious attention of all Catholics.” Lim said she has contacted the Archdiocese, and expressed an interest in arranging a meeting to discuss ways to work together to “secure health and safety protections for its high school students and the Catholic residents of Wildgrass.” Lim has not received a reply.

A Denver Archdiocese spokeswoman, Karna Swanson, declined to comment on how or whether the Holy Father’s Laudato Si’ would be taken into consideration as part of the Archdiocese’s decision about whether to accept or oppose Extraction’s leasing offer. “We were approached by Extraction Oil & Gas to lease our mineral rights,” Swanson confirmed. “We at this point are not doing anything. We haven’t responded.”

If our country’s energy independence and state economy relies on drilling in neighborhoods like Wildgrass, “We are way on the wrong track.”

Linda McKibben, a registered nurse, started investigating health impacts and found an alphabet soup of federal and state agencies and universities that have published data about the negative health impacts of oil and gas development, including NIH, CDC, EPA, OSHA, NIOSH, CDPHE, CU, CSU, Cornell, Duke and many others. “There is a lot of literature suggesting there are legitimate health concerns for workers and communities near these developments,” she concluded. “It defies understanding,” she said, how state regulators could agree to let residents act as guinea pigs while epidemiological evidence accumulates around the country.

Bernie McKibben started looking further into the COGCC’s role in overseeing oil and gas operations in the state. At first, he had believed Gov. John Hickenlooper’s assurances about the state’s ever-tightening regulations and inspections. He had taken heart from the COGCC’s legal mandate to, “foster the responsible, balanced development, production, and utilization of the natural resources of oil and gas in the State of Colorado in a manner consistent with protection of public health, safety, and welfare, including protection of the environment and wildlife resources.”

But then Bernie started understanding just how little the industry was regulated, how rarely inspectors made visits, and how haphazardly companies monitored their own sites. He got a hold of the “Field Inspection Unit Well Inspection Prioritization” document from the COGCC, which he said floored him on multiple fronts. The document prioritizes a “risk-based strategy for inspecting oil and gas locations,” categorizing operations by risk factor and giving each a rating according to its level of importance. He discovered that “Population Density & Urbanization” only accounted for 10 percent of the weighted assessment. He found the fine print was even more appalling: The highest density the COGCC considered was in places where there were 25 people per square mile or more. This means that a semi-rural area like Clear Creek County is treated the same as Broomfield County, the second-most densely populated county in the state, with more than 1,700 people per square mile.

“Looks to me like people in subdivisions like Wildgrass aren’t very high on their priority list,” he said.

Another front on the Wildgrass fracking wars opened up with lawyers who lived in the neighborhood and who started scrutinizing the fine print regarding liability. They found that residents who signed the leases could be held responsible for Extraction’s legal costs and other financial consequences if there was an accident.  “We would be accountable for their errors?” asked Bernie, incredulously.

Residents sought allies in the other Broomfield neighborhoods. The nearby Anthem subdivision had generated its share of concerned citizens, since Extraction was heading their way as well. Some Anthem residents owned their minerals, but many did not.

At a Broomfield City Council meeting on Nov. 15, about 40 Anthem residents showed up to urge the mayor and council to protect them. The scale of Extraction’s plans, which had ballooned to 140 wells, was unprecedented, former oil and gas worker Lara Hill-Pavlik told the commissioners. “I am unaware of a single project of this magnitude which has been implemented in such close proximity to schools and residents,” she said. “And I lived in Houston.”

“I told my husband, ‘We’ve moved to Doomfield.’”

After the meeting, Anthem resident Michael Kohut said, “We’d like to set a different precedent: saying no to drilling in residential neighborhoods.”

Patricia Romero-Trustle, who told council members that she recently moved from Los Angeles for a better quality of life, stood in the municipal building lobby after the meeting completely disillusioned. “I told my husband, ‘We’ve moved to Doomfield,’” she said.

Broomfield City Councilman Kevin Kreeger heard the Anthem residents’ presentation, and is outraged at the whole concept of forced pooling – as well as the way Extraction has played its pooling card. “Forced pooling is big government and big business at their absolute worst,” Kreeger said, since it grants the state government the right to take one person’s property and give it to a company, even when “there is no social benefit of any kind.” He said that “Extraction has not operated with integrity or respect for our community,” and is disturbed that the company keeps increasing the number of wells it intends to drill. Originally, the plan was to drill 24 new wells after plugging and abandoning 26 old ones, Kreeger said. Now, Extraction has applied to drill almost six times that many, all of them near homes and schools. “That many wells means 24-hour drilling for years,” he said.

Wildgrass residents gathered in one of their community playgrounds to show their resistance to the planned forced pooling action by Extraction Oil & Gas.

NIMBY and beyond

Wildgrass organizers heard a long list of reasons why residents and neighbors opposed Extraction’s plans. They ranged from NIMBYism to health impacts to an awakening that there’s a much bigger issue at play here, including the climate impacts of continuing to go full-speed ahead with fossil fuel development — even when there’s a gas glut and overwhelming evidence that human-caused climate change is already affecting Colorado in multiple ways. If our country’s energy independence and state economy rely on drilling in neighborhoods like Wildgrass, the engineer Uhlhorn said, “We are way on the wrong track.”

Not all Wildgrass residents are convinced they can beat Extraction or want to fight the COGCC. Even those who do not support Extraction’s efforts worry that community members are spending time and treasure on a losing battle. Peter Pacek, a healthcare executive and nine-year resident of Wildgrass, said he’s concerned that there is “very little that an average citizen can do to hold them back because of the way the laws are written.” Still, Pacek said, he didn’t sign a lease, either.

Residents will soon hear what the COGCC has to say about the next step, when the Extraction faces a usually pro forma “spacing hearing” now scheduled for Jan. 30, 2017. For the time being, the discerning homebuyer James Sines said this week, he’s pulled his house from the market, waiting for the next shoe to drop.

Despite the COGCC’s long record of accommodating the industry, Wildgrass residents now know they are not alone: Their Anthem neighbors, as well as people in Greeley, Boulder, Ft. Collins, El Paso County, Battlement Mesa, Pueblo, Thornton, Longmont, Lafayette, Westminster and dozens of other communities around the state are all struggling to keep this rising residential hydrocarbon tide from swamping their neighborhoods. “We know that if we’re going to have any hope, we have to act as a group,” said Bernie McKibben.

The group is likely to grow. When several Wildgrass residents met with COGCC Director Lepore recently, they asked him where they could move in Colorado to avoid having to fight oil and gas development.

His reply: “Summit County” — a place so mountainous, it would be nearly impossible to drill.

Cover image: Homes in Wildgrass as seen from open space to the west. 

All photos by Ted Wood/The Story Group

Hospitals and doctors across Colorado are preparing for a new law that will soon allow qualified, terminally ill patients to obtain a lethal dose of barbiturates to voluntarily end their lives.

Medical aid-in-dying, known to its critics as assisted suicide, was passed overwhelmingly by voters in November and will be legal in Colorado by Jan. 9. Given the law’s requirements, it could be late January before patients begin obtaining prescriptions for needed drugs.

Still, says Kat West, policy director of aid-in-dying advocacy group Compassion & Choices, the main backers of the measure. “I can tell you, on day one, patients are going to be asking about it.”  West uses California as a model, which saw patient requests as soon as the law went into effect on June 9 this year.

State voters passed medical aid-in-dying by a two-thirds majority on election night. Colorado will soon become the fifth state in the nation to pass an aid-in-dying law, along with Oregon, Washington, Vermont and California. Montana has no such law, but the state Supreme Court ruled that aid-in-dying is not illegal there.  

Medical aid-in-dying, known as ballot measure Proposition 106, will allow terminally ill Colorado residents to legally obtain a lethal dose of a barbiturate medication. Patients be at least 18 years old, have a terminal illness diagnosis with six months or fewer to live, be of sound mind and have the approval of two different physicians to qualify. The medication must be self-administered.

Compassion & Choices is launching a “massive” outreach campaign later this week, with programming for both physicians and potential patients. Eight action teams across the state will give presentations about the law to senior centers, colleges and other locations make sure potential patients understand their rights. A medical provider advocate team, comprised mostly of physicians, will offer education and technical assistance to doctors and medical facilities across the state. The group has also developed print and online resources, videos, mailers and a series of webinars to help get the word out.

“We are trying to ensure that not only do we have a law in Colorado, but that people have access to that law,” says West. “We need to normalize it and integrate it into the standard of care.”

Hospitals, hospices and health care centers can opt out of the law, and individual care providers may choose not to participate even if their hospitals do.

What is the difference between aid-in-dying, physician-assisted suicide and euthanasia?

For the most part, the different terms reflect the groups who use them.

In developing the 2016 ballot measure, proponents used “medical aid-in-dying” to describe the process of patients self-administering prescribed medication to induce a peaceful death.

Opponents to Proposition 106, such as disability rights activists and groups affiliated with the Catholic Church, tend to use the term “assisted suicide,” arguing that “aid-in-dying” is a euphemism that inaccurately describes the process.

“Euthanasia” is the process by which a physician administers medication to assist a patient in dying, and is illegal in all 50 states. California’s aid-in-dying prohibits the practice from being referred to as “euthanasia” or “assisted suicide.”

What’s the timeline?

On Thursday, Secretary of State Wayne Williams’ office will verify the votes in the 2016 election. The next day, Gov. John Hickenlooper will certify the results, after which he will have a month to sign each ballot measure into law. Ballot measures automatically become law within 30 days, even without the governor’s signature, which means that medical aid-in-dying will become official no later than Jan. 9. Interested patients actually can begin requesting medication now, in preparation for the law’s passage.

Requests cannot be fulfilled immediately, however. To be able to receive aid-in-dying medication, patients must make verbal requests to two different physicians, including their primary care physician, at least 15 days apart. Both physicians must diagnose the patient as terminally ill, observe mental capability and evaluate that the patient is not being coerced into requesting the medication.

Still, says Compassion & Choice’s West, physicians need to be proactive in their preparation: “We tell providers that if you start to think about this only when your patient requests it, it’s too late.”

What kind of drugs are used, and what do they cost?

In medical literature, the two most commonly cited drugs for the purposes of aid-in-dying are Nembutal (known generically as pentobarbital) and Seconal (known generically as secobarbital).

Pentobarbital, a barbiturate, was an effective and inexpensive aid-in-dying drug for many years. However, its use as a lethal injection drug for executions recently prompted manufacturers to stop producing it for the United States. Access is now extremely limited, even for use in hospitals as a sedative.

Seconal, a barbiturate-derivative used for the treatment of epilepsy, insomnia and as an anesthetic for minor surgical procedures, is still routinely prescribed to patients seeking a painless, voluntary death. But after California passed aid-in-dying earlier this year, the drug’s manufacturer, Valeant Pharmaceuticals, took advantage of the new market and doubled the price. A lethal dose of Seconal now costs $3,000, a price that many people on fixed incomes find prohibitive. In 2009, the same dose cost only $200. There currently is no generic version of Seconal available in the U.S.

Other aid-in-dying drugs exist, but are less commonly prescribed. To combat high prices, doctors have discovered a new drug cocktail that they say works just as well — and retails for only $500. A team of physicians from aid-in-dying advocacy group Doctors with the End of Life developed a mix of three drugs — phenobarbital, chloral hydrate, and morphine sulfate — which are mixed in powdered form and taken with water, alcohol or juice.

This medication is, according to Compassion & Choices’ West, “the most affordable and available,” but it is only available from compounding pharmacies, which are more rare.

Still, West is optimistic about the range of available drugs, and insists that “there is no problem getting them.”

Does insurance cover the drugs?

Colorado’s new law doesn’t require insurance companies to cover aid-in-dying medication. Compassion & Choices’ West says most insurance companies do cover the drug, especially now that California has passed a law, but there’s no guarantee.

A patient’s decision to request aid-in-dying medication will have no effect on annuities, advanced medical directives or health, accident or life insurance policies. Physicians must list the patient’s terminal illness as the cause of death on the death certificate.

Do doctors need additional training?

No. Licensed physicians in Colorado need no additional training or certification to prescribe aid-in-dying medication or to serve as consulting physicians.

Physicians are required to make a record any time an individual requests the medication, documenting that the patient is terminally ill, has six months or fewer to live, was not coerced into requesting the medication and is in good mental health. According to the law, the primary physician must provide “full and specific information to the individual about his or her diagnosis and prognosis; alternatives or additional treatment opportunities, such as hospice or palliative care; and the potential risks and probable results associated with taking the medication.”

Doctors must also inform each patient that he or she may choose not to use the medication, even if it is prescribed, and may withdraw his or her request at any time. If either the primary or consulting physician feels a patient is not mentally capable of making an informed decision about receiving the medication, they must refer the patient to a licensed psychiatrist or psychologist, who must deem the patient mentally competent before the request process may proceed.

Compassion and Choices’ West says that physicians must be licensed and have primary responsibility for a patient’s terminal illness. In other words, she says, “a podiatrist would not qualify.” For the most part, she says, it has mostly been family practitioners who prescribe the medication in Oregon, along with some oncologists and some hospice medical directors.

Who will offer it?

It’s still too early to tell how many hospitals and physicians will participate in providing aid-in-dying to Coloradans.

According to Amber Burkhart, a policy analyst for the Colorado Hospital Association, healthcare facilities must decide whether to opt in or out of the law, and establish policies to go along with their position. Within those policies, individual physicians can always decide to opt out of participating.

Compassion & Choices has sent out mailers to inform physicians and hospitals of the new law, and ensure that they feel prepared to offer aid-in-dying if they so choose. The organization also plans to develop a “Find Care Tool” on their website, which will allow interested patients to find the nearest facilities that honor the right to aid-in-dying under the law.

“When people are thinking about getting a doctor or getting insurance, they will have the information they need to choose healthcare providers who will honor their decisions,” says Burkhart.

But the Colorado Hospital Association “does not have a position and neither encourages nor discourages” healthcare providers to provide aid-in-dying, says Burkhart. “We’re just focused on providing support,” she says.

Sonja Hix-Cortina, a spokeswoman for the Home Care Association of Colorado, says the board is still discussion the issue and hasn’t formalized a policy for the association yet.

What about the Catholic Church?

Though it’s too early to tell how many physicians will provide aid-in-dying, hospitals, physicians and hospice centers affiliated with the Catholic Church will almost certainly not participate.

Catholic hospitals follow the Ethical and Religious Directives for Catholic Health Care Services, a set of rules put out by the U.S. Conference on Catholic Bishops that guides care for affiliated hospitals. The directives, which call medical aid-in-dying “intrinsically immoral,” say that “Dying patients who request euthanasia should receive loving care, psychological and spiritual support, and appropriate remedies for pain and other symptoms so that they can live with dignity until the time of natural death.”

Michael Romano, the national media relations director for Catholic Health Initiatives, isn’t ready to give a statement about participation in medical aid-in-dying, but says The Colorado Independent should read between the lines. The Catholic Health Initiatives website states that affiliated hospitals and health centers must follow the church directives. “Clearly, if Catholic Health Initiatives follows the directives, we’re not going to be doing assisted suicide,” Romero says.

According to the American Civil Liberties Union’s 2016 report, “Growth of Catholic hospitals and health systems,” between 30 and 39 percent of acute care beds in Colorado are in facilities that are Catholic owned or affiliated.

Is the battle over aid-in-dying finally over?

Though aid-in-dying passed nearly 2-to-1 in Colorado, the controversy surrounding it rages on. And it’s not just the Catholic Church — disability rights activists and physicians who simply disagree with the practice have spoken out against the practice. In California, opposition groups even filed a lawsuit looking to overturn the aid-in-dying law.

Though there is no evidence yet as to whether Colorado will see similar lawsuits, opponents continue to make their voices heard.

Dr. Bill Bolthouse, a physician at a Denver health clinic that primarily serves low-income patients, says his arguments have nothing to do with religion. “I’m not Catholic, but on this side of things I guess we’re on the same team,” he says. To him, aid-in-dying is a violation of the Hippocratic oath, in which doctors promise to do no harm to their patients.

Bolthouse also sees it as “dangerous for people on the margins,” whom he often treats at the health center. He worries that people without financial resources will see aid-in-dying as a cheap alternative to costly treatments.

Dr. Thomas Perille, a retired physician who worked as an internist for 20 years, also opposes the new law. He fears it will become a slippery slope, with doctors developing a tendency to “resort to euthanasia instead of providing care.”

It’s hard to imagine a doctor suggesting aid-in-dying over treatment, but Bolthouse says change could be on the horizon. “If Medicaid says, ‘Well that treatment is experimental or that treatment is too expensive, we’re not going to pay for it, but we will pay for your life-ending medication,’ it kind of justifies not paying for something expensive,” he says. Bolthouse referenced a case in 2008 of a woman named Barbara Wagner who received a letter from her insurance company, which said the experimental cancer treatment she sought wasn’t covered. Aid-in-dying, however, was listed among the treatments which were covered in full.

Wagner ultimately received the treatment, but the incident prompted California to include a provision in its law that insurance companies cannot tell patients who aren’t requesting aid-in-dying medication whether or not they cover the cost. Colorado’s new law prohibits insurance companies from refusing treatment based on the availability of aid-in-dying medication.

Bolthouse also says the rise aid-in-dying demonstrates a deteriorating relationship between doctors and patients. “I think as doctors become more distant from their patients, as we hide behind our screens in clinical situations, we stop touching our patients, we stop looking them in the eye, we stop treating them like human beings,” he says. “It’s not medicine. I don’t know what it is, but its not medicine.”

Dr. Cory Carroll, a physician with a private practice in Fort Collins, supports medical aid-in-dying. He doesn’t think doctors should be able to make decisions on behalf of their patients, saying instead that “there should be a separation between church and medicine.” Carroll understands why people oppose aid-in-dying, but believes each patient should be able to make their own decision. “People can look at this as being wrong and immoral, but is it something criminal that should be denied?”

Carroll also thinks aid-in-dying will help close the gap between the humane way that medical professionals tend to die, and the prolonged suffering patients often endure in an attempt to live longer.

“What I do know is how physicians die, and the reason why is that we know what it looks like,” he says. “We don’t go to extraordinary measures to keep our bodies alive.”

Perille disagrees. “I’m quite aware of what the limitations of medical interventions are, and I don’t have any desire to be on a ventilator or chemotherapy with a low percentage chance of working,” he says, “but that doesn’t mean i want to kill myself.”

Calling aid-in-dying “false compassion,” Perille says people may request medication when there are other, solvable problems at play, like pain or depression. “There are people that I’ve met that have terminal illnesses who will tell me they want to die, and then you address the issues that cause them to feel that way, and months later they have a much different perspective,” he says.

But that argument falls flat with Carroll, who has seen what happens when his patients can’t access the aid-in-dying they’re looking for.

“As a physician of 25 years, I’ve had many many patients ask me to help them die,” he says. “Some have been successful — with bullets.”

Update: This story has been updated to clarify that the Montana Supreme Court ruled that aid-in-dying is not illegal, but is also not a guaranteed right under state law. 

Photo credit: The Javorac, Creative Commons, Flickr