In Depth – The Colorado Independent

Editor’s note: Daniel Glick and Ted Wood of The Story Group, along with Kelsey Ray of The Colorado Independent, have been reporting on oil and gas issues for our ongoing series: Fractured. Fractured examines the science, politics and humanity of oil and gas development and explores its impacts on Coloradans around the state.

ERIE, Colo. — It’s showdown time.

This morning, Boulder County’s five-year ban on new oil and gas development officially expired. In its place, new rules governing oil and gas development in the county will take effect, which county commissioners say are the “strongest set of regulations on oil and gas development in the State of Colorado.”

Oil and gas industry officials have already vowed to challenge the new rules, saying they are essentially a ban by another name.

Meanwhile, “fracktivists” in Colorado’s most politically progressive county say that lifting the ban defies the will of the people who live here, and are planning everything from civil disobedience to mass meditation to prevent new drilling.

Conflicts over oil and gas development in Colorado have escalated over the past decade, generating discord even in much less liberal strongholds such as Broomfield, Battlement Mesa, Greeley, Ft. Collins, and Colorado Springs. The rapid implementation of horizontal drilling technologies and hydraulic fracturing, or “fracking,” has propelled an increase in industrial activity closer to where people have been flocking to live. At the same time, as the recent fatal house fire in Firestone demonstrates — investigators are still searching for the cause, including examining a possible link to an older well about 170 feet from the explosion — there has also been a huge increase in housing developments sprouting near existing oil and gas development.

Tensions have increased as oil and gas companies continue to seek permits to inject a combination of water, sand, and chemicals deep underground to break open, or “frack,” reservoirs of hydrocarbons that had previously been impossible, uneconomical, or impractical to retrieve. A single modern drilling pad can launch dozens of horizontally drilled wells, with associated compressors, truck traffic, drilling rigs, separators, condensate tanks, noise, and other industrial activity.

The result over the past decade, in Colorado and around the country, is a gusher of new wells and an almost unfathomable flow of money into energy industry coffers. Exxon and Chevron just reported a combined profit of $6.68 billion for the first quarter of 2017. There are more than 54,000 active wells in Colorado today, compared to about 22,500 in 2002, according to the Colorado Oil and Gas Conservation Commission (COGCC), which regulates the industry. Of those, only 310 are in Boulder County, from wells that predate the moratorium.

Each successful well can produce millions of dollars of profit for a company. The resulting tax revenue and jobs have garnered substantial support for the industry at the statehouse and Gov. John Hickenlooper’s office. In 2014, according to an analysis by the University of Colorado Leeds School of Business, the state received a little more than $1 billion in revenue from property, severance, and state taxes from oil and gas companies.

This gush of money has also fueled what some people see as asymmetrical warfare in the political sphere, as the industry wields its substantial clout and resists change even as its impacts have generated deep – and widening – resistance.

COMING TOMORROW: Roughneck Politics

Colorado’s population has grown by more than 10 percent since 2010, while the number of producing gas wells has almost doubled during the same period. The resulting collision between residential sprawl and industry growth has given communities and local politicians whiplash. It has pitted decades-old laws against new realities that legislators never had to consider: 40-well industrial facilities next to million-dollar suburban homes; oil tank fires near elementary schools; a new house exploding near a decades-old well; and the increasingly urgent threat of an emerging climate crisis, fueled by burning the very fossil fuels that the industry strives to extract.

Boulder County’s five-year moratorium has shielded its 740 square miles of rolling hills and short-grass prairie from the drilling frenzy that has transformed neighboring Weld County to the east.

The coming months and years will test the resolve of the oil and gas industry to drill over the increasingly impassioned objections of local residents and governments. This resistance will push the courts to new legal frontiers, propel scientists to quantify the impacts of oil and gas developments, and deploy multiple political flanks in the state’s ongoing hydrocarbon wars.

It is showdown time, indeed.

Oil and gas development in new housing subdivision on Collier’s Hill. (Photo by Ted Wood/The Story Group.)

Ghost of drilling future

The town of Erie, which straddles Boulder and Weld Counties, is one epicenter from which to assess the coming showdown. Erie’s population has quadrupled since the 2000 census, from a little more than 6,000 to an estimated 25,000 today. That is almost identical to the number of wells (23,279) operating in Weld County, which has received nearly two-thirds of the state’s new applications for drilling so far in 2017.

Here on the east side of County Line Road, where Weld County has enthusiastically embraced oil and gas development, the ghost of Boulder’s drilling future awaits.

On a recent spring day, bright red industry trucks and employees’ white Ford F-150s dot the landscape. The pneumatic gush of nail guns cinching plywood to rows of new, two-story homes offers a counterpoint to the staccato hum of drilling rigs actively working in the center of town. Near the recreation center, joggers wearing earbuds and dog-walkers talking on their iPhones promenade along bucolic bike paths, around a golf course, and past pocket parks with views of the Continental Divide.

For Eileen Rojas, Boulder County’s possible future has already arrived. A biomedical scientists and mother of two young children, Rojas, lives on the Boulder County side of Erie, about 400 feet from the Weld County line. She has watched with dismay as drilling operations on the other side of that jurisdictional border have turned her life upside down.

From her driveway, Rojas witnessed two giant drilling rigs moving into view, and saw workers erect a 30-foot-high green sound barrier, which didn’t block much sound. Now that the massive drilling rigs have moved out of sight but not out of mind, she can still feel the rumbling of trucks entering and leaving the drilling sites all day, and sense the flashing lights all night. At times, the acrid tang of the operations is so bad that she takes her kids and evacuates her house to seek refuge at the home of friends who live in the city of Boulder, 15 miles away.

When Rojas and her husband bought their house four years ago, she had heard about fracking but didn’t think it would hit them between the eyes. “I had no idea they were going to be developing across the street from us,” she said. When the drilling started and the noise and smells were literally driving her from her home, she made repeated calls to the company doing the drilling and the COGCC. Those efforts led to a runaround of wrong numbers, unreturned calls, and growing frustration.

Rojas doesn’t consider herself an activist or fracktivist. She is a scientist, however, and she’s read the studies about oil and gas air emissions and their impact on air quality. She is increasingly concerned about the possibility of health impacts on her and her family. Rojas viscerally feels the impacts of this development that seep into her everyday life, and is unnerved by the prospect of more. “We love living here,” she said, “but we’re thinking about moving.”

When she talks to friends in other parts of the county, she is dismayed when they say that none of this could happen to them.

“Oh, no,” she tells them. “They’re coming.”

Throwing down the gauntlet

Energy companies are indeed coming, but it’s still an open question how far they’ll get after they cross into Boulder County.

The Boulder County Commission passed their new regulations unanimously on March 23, 2017, after a lengthy and intensive review by its legal team and public health officials, and vociferous input from constituents at public hearings and in public comments.

The new rules include a provision to require companies who apply for drilling permits to engage in lengthy public comment periods, make “nuisance” payments to residents who are affected by oil and gas development, install intensive air and water monitoring systems, and face a review by the county’s land use staff before siting the wells. The new rules ban injection wells that are reservoirs for “produced” water that contains various chemicals used or released from the drilling process. They also make it clear that putting oil and gas facilities in floodplains won’t happen in a county that is still recovering from disastrous flooding in 2013 that, among other things, caused leaks and spills from oil production to contaminate the surrounding area.

Many oil and gas facilities were damaged in the 2013 floods that hit the Front Range. (Photo by Ted Wood/The Story Group.)

Many county residents say that more stringent rules aren’t the answer, period. Those who advocate for continuing the ban argue that no new rule can be effective in protecting them from unwanted industrial activity and the risks to their health and safety, as well as the necessity to wean ourselves from fossil fuels to reduce the impacts of future climate disruptions. One group, calling itself Boulder County Protectors, vowed that, “not one inherently dangerous well should be allowed to harm the environment or the people of Boulder County.” They have planned “emergency meetings” around the county this week, and multiple citizen groups are ginning up support and resolve. “Negotiating the terms of this harm is not acceptable,” says one flyer that was passed out at a recent commission meeting.

The county’s three commissioners maintain they had no choice but to lift the moratorium. They argue that their new regulations are a forceful, if less than perfect, response to two May 2016 Colorado Supreme Court rulings that overturned bans on new oil and gas development in Ft. Collins and neighboring Longmont. The Court ruled that local bans were illegal since state law encouraging oil and gas development trumped local ordinances that tried to curtail it. Three other cities on the Front Range, including Broomfield, Lafayette, and Boulder, had also passed time-outs or bans on new permits.

Activists regrouped. After an often contentious internal debate among several fracktivist factions about the best strategy to pursue, a decision was made to try to gather enough signatures to place two ballot initiatives on the November 2016 ballot: one, 75, would have given local governments more say in siting and regulating oil and gas activity in their backyards; 78 would have increased the distance required between oil and gas development and houses, school, and water sources.

The industry responded with a fire hose, pouring millions of dollars into campaigns against the measures. Under the guise of the industry-funded “Coloradans for Energy Development,” or CRED, it launched a competing ballot initiative that became known as “Raise the Bar,” an effort to make it more difficult for grassroots activists to influence state law outside of the legislative process. It was, essentially, a ballot initiative to make it harder to float ballot initiatives.

Measures 75 and 78 failed to gather enough signatures to make the ballot. “Raise the Bar” passed, and has subsequently been challenged in court as unconstitutional. That case is pending.

VIDEO: The Petition Run: The Final Moments of Ill-Fated Fracking Initiatives 75 and 78

The Supreme Court’s decisions in the Ft. Collins and Longmont cases didn’t specifically address Boulder, but county attorneys advised that the ruling applied to their county as well. Boulder tried a legal feint by rescinding its five-year ban and replacing it with a short-term moratorium in order to study the new landscape. State Attorney General Cynthia Coffman’s office responded by suing Boulder County twice: once for the original ban, and a second time for the more temporary one. Despite the promise of today’s end to the ban, the AG’s office continued to pursue its lawsuit. On Friday, a Boulder District Court judge ruled against the county’s motion to dismiss the suit, which presumably will become moot if the moratorium is lifted today.

Boulder County Commissioner Elise Jones as she explains the reasons to end Boulder’s oil and gas moratorium. (Photo by Ted Wood/The Story Group.)

At an emotional meeting on the third floor of the Boulder County Courthouse last week, the three commissioners took turns justifying their strategy to continue with a “multi-pronged approach” to curtail further development rather than continuing the ban and facing certain legal defeat. They outlined an approach that includes defending the new regulations against inevitable lawsuits, supporting other lawsuits pending across the state, funding scientific studies to document air and water impacts from oil and gas development, and pursuing alternative energy and conservation measures to put their money where their carbon footprint is.

Commissioner Elise Jones pleaded with her constituents to take their fight to the statehouse and Governor’s office, since county commissioners were powerless to change state law. “I’d extend the moratorium in a heartbeat if I thought it would help,” she said.

In an interview with The Colorado Independent, Jones said that in public comments received by commissioners, about 97 percent of residents opposed new oil and gas development. She argued that businesses providing jobs in the county (such as IBM, Google, Amgen, and Whole Foods) are interested in providing their workers recreational opportunities as well as both a clean environment and local policy makers who take progressive stances. These include supporting more renewable energy and efficiency and a commitment to aggressively address climate change. The city of Boulder passed a Climate Action Plan tax in 2006, which was hailed as the first tax in the country designed to promote climate change responses, and is pursuing a contentious utility municipalization to promote more renewable energy. It has spent millions of dollars buying open space with taxpayer dollars, even if it has not been able to purchase the mineral rights under much of that land.

Should energy companies who hold oil and gas leases on county open space choose to develop them, it’s easy to imagine a blockade of Camelback-sporting hikers and mountain bikers wearing colorful “Frack off!” jerseys amassing at the open space boundary.

Digging in for a fight

The oil and gas industry, meanwhile, has already vowed to fight the new regulations in court. Tracee Bentley, executive director of the Colorado Petroleum Council, a branch of the American Petroleum Institute, contends that the new rules will not stand legal scrutiny. “There is zero doubt in my mind that these regulations were written to take the place of the moratorium,” she told The Colorado Independent. If these regulations were allowed to stand unchallenged, she said, “It would take a miracle to get a permit.”

Dan Haley, president of the Colorado Oil and Gas Association (COGA), suggested that Boulder’s new regulations were not meant to work constructively with the industry, which he maintains is already regulated enough by the state. He called Boulder’s new rules “unrealistic regulatory standards designed to roadblock responsible energy production.”

Haley says that Boulder’s new regulations exceed the county’s reach on multiple fronts. “For example, Boulder County’s newly adopted regulations ban underground injection wells, granting themselves an authority they do not retain,” said Haley in a statement. “Boulder County further attempts to supersede state law on floodplain management and water quality testing, and even tries to grant themselves the authority to locate a well, something that only the State can do.”

In a shot fired across Boulder’s bow, Haley concluded, “Our legal team will be conducting a thorough analysis over the coming weeks.”

Haley said in an interview that the industry “is willing to work with local communities,” but that “oil and gas does not respect local boundaries.” He says that a patchwork of regulations that vary from jurisdiction to jurisdiction cannot work, especially when state law clearly gives oil and gas exploration and production wide berth to operate. Haley and others in the industry say they increasingly operate in an environment in Colorado that may put operators at a competitive disadvantage and force them to leave for places like Texas.

Boulder County officials would be happy to hasten that departure.

County commissioners and others concerned about the scale and pace of the development say there are many reasons to draw a line in the Boulder County sand. They say that regulation and inspection of the industry still falls far behind what is required to keep citizens safe, noting that Colorado still has a perverse incentive to allow marginal operators to keep operating so the state won’t have to pick up the tab for their cleanup. Operators with repeated violations have routinely been given fines that have not been paid, while continuing to operate, and only a handful of operators have ever been shut down by the COGCC.

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The list of concerns goes on. Older wells, such as the one that may be implicated in the recent Firestone house explosion that killed two people and seriously wounded two others, face much less scrutiny than new wells. After the explosion, Boulder County officials quickly asked all operators of older, vertical wells in the county to stop production pending inspections. Both Anadarko Petroleum and Great Western Oil and Gas have temporarily suspended some of their operations to inspect their equipment.

Boulder County officials say that the state’s requirements for operators to perform “Leak Detection and Repair” (LDAR) inspections are grossly inadequate because they are so infrequent and often lack follow-up. In response, Boulder County has instituted its own inspection of local oil and gas facilities, and in 45 percent of the inspections, it has discovered leaks, according to a presentation made to the commissioners. Companies have responded to the reports and fixed the leaks in most cases. However, return visits to the same sites have often revealed new leaks. “These leaks tend to be ongoing and are popping up at different parts of the operation,” said Pam Milmoe, the air quality coordinator for Boulder County Public Health, in her remarks to commissioners last week. She said there have been 15 documented spills since mid January, and “four of them threatened groundwater.”

Will Toor, a former Boulder mayor and county commissioner who is currently on the state Air Quality Control Commission, acknowledges that some substantial improvements have been made in governing the industry, including 2014 methane rules that instituted new regulations to include more inspections of oil and gas operations and upgraded infrastructure. In 2011, Colorado passed new policies requiring the disclosure of hydraulic fracturing fluids, mandating increased water quality monitoring near wells, and establishing improved air quality standards for well operations.

But even with those regulatory improvements, Toor said, “In a rational world, you would really be much more cautious about putting these [oil and gas operations] near people.”

On the health front, Milmoe said in an interview, Boulder County’s public health officials had lobbied the commissioners to keep the moratorium until a new comprehensive study of health impacts by the Colorado Department of Public Health and the Environment (CDPHE), due out in June 2018, would be released. She said that some health impacts from oil and gas development are already readily apparent, especially as a result of oil and gas activity’s documented contribution to the region’s repeated failure to meet federal ozone standards. Oil and gas operations release chemicals that are known as “ozone precursors,” including volatile organic compounds (VOC), which interact with other emissions to increase ozone levels. Higher ozone levels, in turn, lead to a host of other illnesses, including respiratory diseases and higher asthma rates. While oil and gas only contributes a part of the emissions to this ozone problem, its role is an important one. In one study by NOAA researchers, more than half of the VOC reactivity in the Denver Basin was attributed to oil and gas activities. “Increased oil and gas activity will likely exacerbate ozone formation on the Front Range,” Milmoe said.

Other potential health impacts, Milmoe said, are worrisome. Benzene exposures, she said, “can have carcinogenic effects and may be causing health impacts that it will take years for scientists to fully understand.” Milmoe understands that public health officials don’t make policy, but does say that “there is enough scientific information to cause concern. But we don’t have all the information we need.”

At a recent scientific meeting in Boulder where results of the Front Range Air Pollution and Photochemisty Experiment (FRAPPÉ) emissions monitoring program was discussed, Gabrielle Pfister and Frank Flocke from the National Center for Atmospheric Research reported that benzene levels at one of their monitoring sites in Platteville spiked so much at times that Flocke said that he personally wouldn’t live near there.

Oil and gas development in new housing subdivision on Collier’s Hill. (Photo by Ted Wood/The Story Group.)

To the Courts

Besides the inevitable legal challenges to Boulder County’s new rules, a flurry of lawsuits already winding through the courts is collectively challenging the industry’s supremacy.

Recently, the Colorado Court of Appeals ruled in favor of a group of Boulder teenagers who sued to force state agencies to more directly consider the health and welfare of Colorado residents when reviewing oil and gas drilling applications. The lawsuit centers on an interpretation of the Colorado Oil and Gas Conservation Act, which states that it is “in the public interest 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 the protection of public health, safety, and welfare.”

The judges ruled that the statute requires oil and gas companies to ensure that public health and welfare is “a condition that must be fulfilled” rather than an afterthought or as a merely one consideration among many in regulating oil and gas companies.

What that means is that the courts realize that the right to drill “is not an unconditional right,” says Kevin Lynch, a University of Denver Sturm College of Law assistant professor who supervises the student legal clinic that helped file the suit.

Other lawsuits challenging the COGCC’s interpretation of “neighborhood drilling” regulations are also pending, as well as an even more recent case opposing the siting of drilling operations near a middle school near Greeley. Said Lynch: “We see these cases as an opportunity to make the agencies take the new rules more seriously.”

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Opposition rising

Activists in Boulder have already stated, in forceful ways, that the commissioners’ stance isn’t tough enough. Facebook groups like East County United and Frack Free Boulder have vowed to fight any new development by conventional and unconventional means. Guerrilla light artists have flashed “Ban Fracking!” graffiti on the county courthouse during protests, and self-described “fracktivists” have begun training sessions on non-violent civil disobedience. One group of about 40 residents showed up at the doorstep of Boulder County Commissioner Cindy Domenico on April 17, knocking on her door and demanding more action. Her husband politely turned them away. In 2012, commissioners condemned “mob harassment” that led them to enact new security measures for meetings.

On a more karmic note, an Eco Dharma group plans to “meditate the frack out of Boulder” in several events this coming week to protest the lifting of the drilling ban.

Before the Boulder County meeting to decide on ending the moratorium, Boulder residents demonstrated outside the courthouse. (Photo by Ted Wood/The Story Group.)

What about climate change?

Almost completely absent in the current debates about oil and gas regulation is any consideration of the climate change impacts of the fossil fuel industry.

Some of this accelerated oil and gas development has been fueled by a belief that natural gas has fewer environmental impacts than coal when burned to produce electricity, and can be a “bridge fuel” to a carbon-free future.

However, drilling operations here produce both methane (natural gas) and oil. Weld County, for example, is the state’s number one producer of both oil and gas, according to county statistics.

Complicating this debate further is the fact that methane production may not be the carbon-offset program it’s billed to be. Methane is a much more potent greenhouse gas than carbon dioxide, and although it doesn’t last as long as CO2 in the atmosphere, it has a much more immediate impact on our warming planet. “Fugitive methane” – which leaks out during the production process – is so plentiful in some locations that scientists believe that any climate change advantages to burning methane are more than offset by the amount that leaks into the atmosphere during its production and transport. As Cornell engineering professor Anthony Ingraffea wrote in a New York Times editorial, “Natural gas isn’t a bridge fuel. It’s a gangplank.”

In a place like Boulder County, which probably has more atmospheric scientists per capita than anywhere in the world, methane matters.

What’s next?

After today, it’s unlikely that there will be an immediate rush of new applications to drill in Boulder County. A rush of lawsuits is likely to come first. Crestone Peak Resources has already applied for a “Comprehensive Drilling Plan” that affects about a 12-square mile swath of the county – an administrative move that could precede a drilling application.

Crestone Peak’s chess move will provide some interesting legal work for a lot of lawyers. In its application to the COGCC, the company has ironically asked to extend the moratorium on approving drilling applications in that area until its plan can be reviewed and approved. Crestone states it is interested in pursuing its drilling rights in a “collaborative, methodical, and transparent manner.” They are, in effect, calling Boulder’s bluff.

The move puts Boulder County officials in a bind. The Crestone applications will involve drilling on lands that either abut private property where people live, or are on county open space that many residents consider sacrosanct.

Boulder County already has about 310 operating wells within its boundaries that pre-date the 2012 ban. County government earns revenues from those wells – $338,544 in 2016 from royalties, mineral lease payments, and severance taxes – which Commissioner Jones says her board would gladly relinquish in return for a frack-free county.

The COGCC was scheduled to hold a hearing today to discuss Crestone’s plan, but that hearing was cancelled. All parties involved have agreed not to an extended moratorium, but to a “standstill.”

This is the area in Boulder County that Crestone Peak Resources has proposed as their drilling region for more than 200 wells.

COMING WEDNESDAY: Meet the driller: Crestone Peak moves into Boulder

How this will all play out will be a matter of local urgency with national import. In a country where President Trump denies climate science, proposes to slash budgets for government oversight like the Environmental Protection Agency, and has tried to insert more “carbon” back into the phrase “carbon footprint,” would Boulder County’s quixotic effort even make a dent?

Statistically, the county’s policies would have little global impact. But activists say that’s not the point.. Whether they came to activism during the Civil Rights movement in the ‘50s, the Vietnam-era ‘60s, the no-nukes ‘70s, the Rocky Flats ‘80s, the anti-Iraq war ‘90s, the World Trade Organization 2000s, or the climate marches of the 2010s, Boulder County residents hold dear the idea that individuals can still make a difference. Here and around Colorado, in less politically liberal places like Broomfield and Firestone and Thornton, ordinary people have also been energized to fight development in front of their schools and homes.

RELATED STORY AND VIDEO: The Making of a Fractivist

For many who oppose new oil and gas development in Boulder County, fighting it not just a NIMBY issue, especially if you take the broader view that the planet is our Big Backyard. The growing “leave-it-in-the-ground” call is reaching fiscal conservatives, government watchdogs, democracy advocates, religious communities, business executives, pension managers, moms, dads, Millennials, and others new to the issue.

Mark Kadlecek and his family live in Erie, and have been severely effected by drilling near their neighborhood. (Photo by Ted Wood/The Story Group.)

Mark Kadlecek and his family live in Erie, and have been severely affected by drilling near their neighborhood. (Photo by Ted Wood/The Story Group.)

Take Mark Kadlecek. He is an Erie father of three and IT professional who lives on the Weld County side of Erie. Like his neighbor Rojas on the Boulder side of the city, Kadlecek is living with impacts from oil and gas development he never bargained for when he bought his family’s home.

As his three kids frolicked in the backyard, Kadlecek sat on his back deck and wondered where this is all going. “Just because we’ve been doing it for a hundred years doesn’t always mean it’s safe,” he said. “If it’s safe, is it smart? Is it moral? Is it logical?”

The frustration from citizens and elected officials alike is palpable along many Front Range communities, but especially in east Boulder County. Merrily Mazza, a member of the Lafayette City Council, wrote a Daily Camera op-ed that expressed her frustration about a public policy process she sees as rigged. At first, she said, residents were told to work through local government, but learned those elected officials didn’t have the authority to act on behalf. Then they were told to go to the state legislature, only to run into the buzzsaw of industry lobbying dominance.

“Justice and injustice are different than legal and illegal,” Mazza concluded. There is no alternative to right this blatant injustice other than accept our moral responsibility and use nonviolent civil disobedience to break unjust laws.”

The ongoing clash of worldviews between the industry and Coloradans whose lives are being adversely affected by fossil fuel development is likely to grow ever more vocal. Although it’s easy for many around the state to dismiss Boulder’s eco-dharma ways, resistance to new drilling is not a fleeting phenomenon. It is unlikely that drilling will ever be welcome in Boulder County, even if the courts rule that it is legal, the COGCC gives a company permission, and energy companies decide it is profitable.

“Opening up this county to more drilling,” Commissioner Elise Jones told The Colorado Independent, “is completely antithetical to everything Boulder County citizens want.” The new rules, she vowed, are not the county’s last word on the issue.

“It’s not game over yet.”

Photos and video by Ted Wood/The Story Group

Advocates for tighter controls on the oil and gas industry who have appeared at Colorado’s gold-domed statehouse recently say that the oil and gas industry is increasingly behaving like the National Rifle Association.

Like the NRA, which vigorously opposes any legislation restricting gun ownership, the oil and gas industry in Colorado steadfastly opposes new legislation it perceives would inconvenience its operators.

By deploying substantial lobbying might, expensive public relations efforts, and campaign contributions, the industry has effectively blocked even the most apparently minor legislation relating to how it is regulated. Rep. Mike Foote (D-Lafayette), the sponsor of two recent bills that would increase regulation of oil and gas development near schools and homes, told The Colorado Independent, “If the oil and gas industry wants a bill to die, the Republicans will kill it.”

Take, for example, the April 12 defeat in a Senate committee of a bill to measure mandatory 1,000-foot setbacks for new oil and gas facilities and wells from school property lines rather than school buildings. Even in these days of epic Republican vs. Democratic discord, the bill’s defeat on a party-line vote in a standing-room only Senate committee room left its supporters fuming.

Colorado Oil and Gas Conservation Commission (COGCC) rules require new well pads and drilling rigs to be placed 1,000 feet from “high-occupancy buildings,” including school classrooms and cafeterias. But commission rules allow that same industrial infrastructure to be much closer to other school properties, such as playgrounds, playing fields, and temporary classrooms. Proponents of the setback legislation unsuccessfully argued during the Senate committee hearing that liquor stores and marijuana dispensaries must be located at least 1,000 feet from the edge of school property lines, not just from school buildings. They noted that Colorado law limits how long diesel vehicles can idle near schools, because idling emits pollutants such as benzene and toluene, which are similar to those released by oil and gas operations. In an ironic coup de grace during the hearing, supporters of the setback reminded the committee that in 2011, legislators mandated that Colorado schoolchildren engage in 30 minutes of exercise per day. If the setback bill didn’t pass, advocates warned, then the same legislature would effectively require an undetermined number of children to play within a few hundred feet of active oil and gas wells that routinely leak toxic chemicals.

Northridge High School, Greeley. The football field is only 250 feet from a large oil and gas well site. (Photo by Dan Boyce/Inside Energy.)

Politics or Safety?

Opponents of the school setback bill, including the Colorado Oil and Gas Association (COGA), the Colorado Petroleum Council (a branch of the American Petroleum Institute), and other industry representatives argued that current setbacks and regulations are sufficient to protect schoolchildren. Industry representatives say that it is extremely rare that companies apply for drilling permits close to schools in any case, and some of the examples that have been cited by bill proponents are instances where schools were built in proximity to existing wells, and not the other way around.

At least a dozen schools in the Greater Wattenberg field, mostly in Weld and Adams counties, are near wells, says Matt Samelson of Western Environmental Law Partners. He added that state records are imprecise about the distance from school buildings versus school property lines.

Industry lobbyists and their supporters testified about the potential regulatory mayhem, competitive disadvantage, and financial losses for their members if the new setbacks were to be approved, even as they acknowledged that very few existing or proposed sites would be affected by increasing the buffer zone. Dan Haley, COGA’s president, reminded committee members of a key industry message, which sounded a little out of place in a debate about how far drilling rigs should be from dodgeball courts: “Energy is the cornerstone of prosperity.” In an telephone interview after the bill’s defeat, Haley said that some rural schools have large acreage surrounding their school buildings, and that increasing the distance to 1,000 feet from a school property line would be regulatory overkill. The bill, he argued, had been “about politics, not safety.”

It’s probably fairer to say that killing the bill was more about politics than it was about safety — on both sides of the hydrocarbon divide. After passing the Democrat-controlled House on a party line vote in late March, it was defeated in the Republican-majority Senate committee on a partisan 6-5 vote, burying the bill for this legislative session.

From the industry’s standpoint, says Colorado Petroleum Council’s Executive Director Tracee Bentley, the whole notion that the bill was meant to “protect” schoolchildren was based on the presumption that being near oil and gas facilities is dangerous, which she says is misguided. “We absolutely reject that notion,” she said in a phone interview. What’s more, Bentley and COGA’s Haley say that the real political theater occurred when legislators tried to introduce the bill in the middle of a legislative session, without thoughtful input from the industry or state regulators (the COGCC was officially neutral on the bill). Bentley acknowledged that there are increasing numbers of people moving to Colorado, and increasing numbers of wells being drilled close to communities. The ensuing challenges, she said, will require constructive dialogue among stakeholders, not knee-jerk legislation in the General Assembly. “Are they [bill proponents] interested in figuring this out?” she asked. “Or are they just interested in giving the industry a black eye?”

Advocates for keeping oil and gas production as far away as possible from people and the places where they learn, work, and play say the industry has done a pretty good job of giving itself a black eye, with its no-holds-barred, money-fueled influence in state politics. The Colorado energy industry has been on a political spending binge over the past few years, since five Colorado cities passed local bans on new oil and gas development in 2012 and 2013 (and which were ultimately struck down by the state Supreme Court a year ago). According a 2014 report from Colorado Ethics Watch, that year saw a “titanic money spill” by the energy industry into election spending, increasing from $800,000 on state elections (not including U.S. Senate or Congressional elections) during the 2010 and 2012 election cycles to more than $11.79 million on the 2014 state election. Democrats as well as Republicans were recipients of that largesse, which may be one reason why even when Democrats controlled both chambers in the statehouse as well as the governorship, legislation to curb oil and gas development still didn’t flow freely.

Luis Toro, executive director of Colorado Ethics Watch, says that when a for-profit industry gives money to lawmakers, “It’s supposed to affect the legislation. That’s the whole idea.”

Industry money has also flowed into massive public relations efforts. Coloradans for Responsible Energy Development (CRED), largely funded by Anadarko Petroleum and Noble Energy, spent more than $10 million on “advertising and promotion” in 2014, according to CRED’s IRS 990 form that non-profit organizations must make public. The push coincided with several citizen-sponsored initiatives aimed at the oil and gas industry, including an effort to create larger buffer zones between occupied structures and oil wells. Initiatives 75 and 78 failed to receive enough signatures to qualify for the ballot after the industry spent millions of dollars on a “Decline to Sign” campaign. The industry also supported the so-called “Raise the Bar” initiative to make citizen-backed efforts to put issues on the ballot more difficult. Raise the Bar passed, but its constitutionality is now being challenged in federal court.

An overhead view of Legacy Elementary School and the surrounding oil and gas development in Firestone, Colorado. In 2014, an oil tank fire forced teachers and students to “shelter in place.” (Google Earth/Ted Wood.)

Even in non-election times, CRED keeps pouring money into advertising. It spent $479,000 for television and radio ads in the Denver market in March 2017, according to an analysis of public filings for political and advocacy advertising compiled by the Center for Western Priorities. “Anybody in Colorado who watches TV or listens to the radio knows that the Colorado oil and gas industry is spending millions of dollars on advertising to convince Colorado that oil and gas development is safe,” says Matthew Sura, a lawyer who represents landowners and local governments in contracts and disputes with oil and gas companies. Sura has watched from the front row of countless legislative hearings as the industry deployed dozens of lobbyists to fight any changes that would move the debate from the industry-friendly confines of the COGCC into the public light. He says he’s heard industry lobbyists repeatedly threaten, without proof, that increased regulation like the setback bill would make operators leave the state. “The Colorado oil and gas lobby is behaving like the NRA,” Sura says. “There can be no compromise.”

The Colorado Petroleum Council’s Bentley retorts that the industry already operates with what Gov. John Hickenlooper has hailed as the “strongest oil and gas regulations in the country,” which have been strengthened over time with input from the industry. She understands that “some people don’t like our industry,” but believes that it engages with legislators and regulators to sort out problems as they emerge. Oil and gas development, she says, co-exists “in a productive manner with a lot of communities.”

Productive engagement is in short supply these days when it comes to relations between the industry’s Republican supporters in the statehouse and Democrats seeking reforms. The 2016 election flipped the state Senate into Republican control, which emboldened both the industry and its backers, says Will Toor, a member of the state Air Quality Control Commission and former member of the governor’s oil and gas task force. “The industry became very intractable after that,” he says.

That perceived intractability is likely to repeat itself with industry opposition to another bill recently introduced by Rep. Foote, which would require companies who want to “force pool” mineral owners to give more notice to those owners, and to do so in plainer language. Forced pooling, which is incorporated into state law, allows energy companies to compel mineral owners to sign leases for oil and gas development even if virtually all the mineral owners in an area do not want to sell. Many states require that a certain percentage of mineral owners in an affected area agree before permitting “statutory pooling.”

Even before the bill was debated at a House committee on April 19, however, it was stripped of a provision to require a majority of mineral owners in a “spacing unit” to agree to the lease after the bill’s sponsors had learned the resistance to that provision would be impossible to overcome. What remained was a requirement that companies that seek to force pool mineral owners must give 90 days notification to affected parties, rather than the current 35 days. As with the setback bill, a parade of homeowners and mineral owners appeared at the statehouse to plead their case for this change, and again, a parade of industry representatives predicted doom if the bill were to pass.

Some political analysts thought the forced pooling bill might appeal to both sides of the aisle, since it was framed as a way to protect private property rights of mineral owners who might choose to sell at a later date, or to take time to negotiate better royalty payments. It would also appeal, proponents argued, to conservatives who were concerned about government overreach, since forced pooling represents an example of a government approval process that essentially gives precedence to a private company’s rights over citizen’s property rights.

The forced pooling bill passed the House on April 26 but is headed for the Senate “kill committee,” so-named because its Republican members are in such safe seats that they are subject to less public pressure for what may be seen as controversial votes. The bill is expected to meet the same fate as the school setback bill on May 3.

Oil and gas development in the heart of Erie, Colorado, next to the town skate park, baseball fields, library and homes. (Photo by Ted Wood/The Story Group.)

Oil and gas development in the heart of Erie, Colorado, next to the town skate park, baseball fields and homes. (Photo by Ted Wood/The Story Group.)

Political Theatre

Both of these bills illuminate the way the industry refuses to cede even the slightest ground, even when facing down scolding mothers and images of exploding tanks near schoolyards.

Before the school setback bill vote, proponents of the legislation engaged in some entertaining parry and thrust. Senate bill sponsor Matt Jones, a Democrat from Louisville, wanted to project a PowerPoint that included photos of oil and gas-related accidents that had occurred close to schools, but Republican committee chair Sen. Jerry Sonnenberg of Sterling squelched that idea. “What you would have seen,” an undaunted Jones told his colleagues, were pictures of an elementary school in Frederick, where in 2014 schoolchildren had to “shelter in place” after a nearby oil storage tank exploded. Jones went on to list schools around the state where oil and gas wells already exist or are expected, sometimes less than 400 feet from high school tracks and elementary school grounds. “These facilities emit chemicals that are dangerous,” Jones said, and “accidents happen with this kind of activity.” In summing up, Jones said, “You shouldn’t put things that explode near where kids are.”

On April 17, five days after the hearing, a house in Firestone erupted in flames, killing two men and injuring two women. Last week, Anadarko Petroleum, the owner of a well 170 feet from the house, temporarily shut down 3,000 wells it operates in Colorado for inspection. An investigation is underway to determine the cause of the explosion, but Anadarko said it was shutting down the wells and inspecting the lines leading to them “in an abundance of caution.”

Firestone house explosion, April 17, 2017. Photo by Dennis Herrera.

Jones had lined up a list of citizens prepared to testify to the widespread support for increasing the setback distance. Christine Berg, Lafayette’s mayor and Colorado director of the volunteer group Mom’s Clean Air Force, testified with her three-month old daughter Lumina in her lap. Berg asked plaintively of the stone-faced Republicans on the committee, “How many of you are parents?” A few members acknowledged the question with a nod, while others ignored her query. “A vote against this bill is a vote against your children,” Berg warned. Retired teacher Marilyn Hughes of Longmont pointed out that stores selling pot candies have to be located farther from school grounds than condensate tanks and rig pumps, reminding legislators, “So far, I have never heard of an edible exploding.” Echoing others who came to testify for the bill, Hughes added, “I do not understand opposition to this bill.”

On the other side, industry representatives and lawyers predicted pain for the state’s economy, job growth, and way of life if any further restrictions were to be placed on their operations. They argued that the state increased the mandatory setback distance just a few years ago, and that the new regulations that resulted from Hickenlooper’s task force recommendations were already among the most stringent in the country. COGA President Haley told legislators that the industry is already well regulated, and that health and safety are not concerns. “The data show there are low risks,” he told the committee, and added in an emailed statement, “Recent health studies have shown that the current 1,000-foot setback, which was tripled in length just four years ago, is clearly a safe distance.” The Colorado Petroleum Council’s Bentley went further, attacking the “supposed scientists and researchers” who disagree with the assessment that there are no health impacts associated with oil and gas operations.

Haley and Bentley both referred to a controversial recent assessment of current research by the Colorado Department of Public Health and Environment (CDPHE), stating the report concluded that there was no evidence linking exposures to health impacts. In fact, the study said that not enough research has been done to prove, one way or the other, exactly how and how many people living near oil and gas facilities might be affected. One of the study’s conclusions was that there is a “need for more detailed exposure monitoring and systematic analyses of health effects of residents living near oil and gas operations.”

Lisa McKenzie, a researcher at the Colorado School of Public Health on the University of Colorado Anschutz Medical Campus, whose own research has shown statistical links between living near oil and gas wells and certain increased health risks, also testified before the committee. McKenzie said there are several peer-reviewed studies, including her own, that link proximity to wells in Colorado to increased risk of varied health impacts, including higher cancer risks and birth defects. She also noted that science moves slowly, and that definitive information about the exact range of impacts at what precise distance from wells “will not be available for years.” What scientists do know with certainty, McKenzie told the legislators, is that “children are especially vulnerable” to exposures from toxic chemicals known to be emitted during the drilling and processing of hydrocarbons.

The most accurate scientific statement that anybody can make at this point might be that nobody has proved exactly how much exposure that children can safely face, to which chemicals, at what precise distance, at what time of year, under what weather conditions, and for how long.

Older vertical wells 200 feet from homes next to Silver Creek Elementary School in Thornton, Colorado. (Photo by Ted Wood/The Story Group.)

By exploiting this scientific uncertainty (a much different scientific concept than not having enough data), the industry is taking a page out of another wildly successful lobbying group: the tobacco industry. The tobacco lobby successfully dodged regulation for decades by relentlessly challenging scientific findings as inconclusive. In Naomi Oreskes and Michael Conway’s seminal book, Merchants of Doubt, which focuses on the oil and gas industry’s lobbying campaign against climate change science, the authors detail the tobacco industry’s orchestrated campaigns to challenge emerging science linking their products with negative health impacts. Their strategy, according to the authors, has been to “discredit the science, disseminate false information, spread confusion, and promote doubt.”

Then there are the known facts. Pam Milmoe, the air quality coordinator for Boulder County Public Health, adds that besides the potential of future health impacts from toxic exposures, “we have a public health problem that oil and gas development is contributing to today.” Milmoe points to a series of studies that show that regional ozone levels, which are associated with a host of respiratory and other diseases, are clearly linked to emissions from oil and gas operations. “There is no uncertainty about that now,” she said.

Scientists also know with certainty that nobody has systematically documented the quantity and composition of the chemicals that are being released into the atmosphere by oil and gas operations. What evidence there is in Colorado suggests that the amount of toxic chemicals released, such as the carcinogen benzene, has been underestimated. One week after the committee hearing, scientists from a variety of disciplines presented their findings in Boulder, focusing on air quality impacts and other potential by-products of oil and gas development. The scientists were not public health experts, but all agreed that the amount of toxic chemicals emitted during the course of drilling, pumping, separating, and transporting oil and gas is substantially greater than previous estimates. They also agreed that, due to a lack of funding to find out more by conducting more detailed studies, scientists may not know enough before it’s too late to prevent measurable health impacts.

In other words: What we don’t know can still hurt us. “There are no studies saying it doesn’t cause any harm,” says Kevin Lynch, a law professor at Denver University’s Sturm Colllege of Law, who has been involved in several groundbreaking lawsuits that challenge the Colorado oil and gas industry’s interpretation of science and law.

The statement that the industry had to move three times as far from schools after the Governor’s task force released its recommendations is technically true, but also leaves out an important point: Even since the task force convened, energy companies have substantially increased the scale of their operations near schools and homes. Attorney Sura, who was a member of the task force, told the committee that when the setbacks were increased, there “was no discussion of megasites,” such as new proposals to drill dozens of wells from a single pad within a home run’s distance of a high school running track, as is the case at Northridge High School in Greeley. One such proposal involves a site near Bella Romero Academy in Weld County, where Extraction Oil and Gas, LLC successfully gained permission from the COGCC to put a 24-well site less than 500 feet from the edge of the middle school’s soccer fields. A lawsuit challenging the approval is pending.

In an increasingly familiar set play of partisan political theater, most of the people who testified in favor of the school setback bill were residents who took time on a weekday afternoon to wait their turn to speak for three minutes in the standing-room only hearing room. “I don’t know anybody outside of the oil and gas industry who thinks that putting oil wells next to schools is a good idea,” said Ann Marie Byers, a Broomfield resident and mother of two who came to Denver to testify.

Virtually all who opposed it were paid lobbyists, most from industry associations. This kind of representation at the statehouse is not unusual, nor is it unique to Colorado. As University of Colorado Denver Public Policy Professor Chris Weible and his colleague Tanya Heikkila wrote in understated academic language in the Review of Policy Research, “Industry actors constitute a large proportion of the proponent coalition and non-profits constitute a large proportion of the opponent coalition.” In an interview, Weible wondered what will happen if enough people feel like they are shut out of the political process. “If they’re not going to win in the legislature and with state regulators, they’ll be likely to go elsewhere,” he said.

What is unique to Colorado is the growing confrontation between the state’s self-image as a clean, John Denver, Rocky Mountain High lifestyle sanctuary, and the collision between population growth and the oil and gas industry’s increasing reach across the state over the past 10 years. Most energy analysts believe oil prices will rise in the future, and the pressure to ramp up production will continue to press up against citizens’ concerns about the impacts of this development on their children, health, and property values.

At the Senate hearing, more residents who supported the bill were lined up to testify when committee chair Sonnenberg called for the vote that killed it for this session.

The bill’s original House sponsor Foote wasn’t surprised. “The industry was lobbying against this bill since before I even wrote it,” he told The Colorado Independent. “They just continue to say no and continue to lose credibility,” he said. “At some point, there will be a reversal of fortune. All of these issues they refuse to address are not going away.”

Cover image: Silver Creek Elementary, in Thornton. Oil and gas operations are 350 feet away from the playground. (Photo by Ted Wood/The Story Group.)

Additional photos by Hennis Herrera and Ted Wood. Video by Ted Wood/The Story Group.

An abandoned underground pipe running from a nearby Anadarko Petroleum well to the foundation of the Firestone home that exploded last month had not been capped, allowing the odorless gas to seep into the basement.

Fire officials say that fugitive gas escaping the abandoned line penetrated the ground near the home’s foundation and entered the French drain where it found its way through the sump pump and inside the home. There, the right mix of gas and air found “an ignition source” and exploded, Frederick-Firestone Fire Protection District Chief Ted Poszywak said during a news conference today.

“It would appear an unusual and tragic set of circumstances occurred here,” the chief said. Those circumstances, he added, included proper identification of and maintenance of abandoned flowlines.

On April 17, Joey Irwin, a master plumber, was helping his brother-in-law, homeowner Mark Martinez, fix the hot water heater in the basement when the home at 6312 Twilight Avenue exploded. Early speculation was that they may have caused the blast. But at a news conference this afternoon, Chief Poszywak was emphatic that Irwin and Martinez were in no way responsible.

“I want to stress this point: There is absolutely no evidence to suggest that the deaths of Mark Martinez and Joey Irwin, his brotherin law, were the result of any criminal or improper activity on their part,” he said.

Erin Martinez, Mark’s wife and Joey’s sister, is still hospitalized with serious burns and other injuries.

The Martinez home, completed in 2015, sat 178 feet from a well drilled in 1993 by the Gerrity Oil and Gas Corporation, sold to Noble Energy in 2005 and sold again in 2014 to Anadarko, Colorado’s biggest oil and gas producer. That well produces mostly gas, but some oil, and is part of a broad patchwork of wells and related oil and gas storage and processing systems Anadarko owns and operates in the area. The well was dormant through 2016, but on Jan. 28, Anadarko reactivated it.

Two northward directed flowlines from the well passed through the property before the parcel and surrounding Oak Meadows neighborhood were developed in the past several years. One line since has been capped. The other wasn’t, and instead had a valve at its end. That valve remained open. When Anadarko restarted the well, unrefined gas began to flow through that line again. The fire chief described it today as a mix of “methane and propane and various other minerals and elements,” that are much more volatile than refined gas.

The state says there’s no map of flowlines in the area.

Those who’ve seen the flowline in question told The Colorado Independent that it was neatly cut below grade right where the south side of the home’s foundation now stands.

It’s unclear who capped one line, but not the other, when that happened, and why the valve remained in the on position when the processing and storage site to which the line once led had been removed. Anadarko hasn’t said whether it inspected the flow line when it bought the well and when Oak Meadows was being developed. The company did not respond to inquires seeking comment.

It is also unclear why the Colorado Oil and Gas Conservation Commission, the regulatory agency responsible for oversight of the oil and gas industry, waited two weeks to disclose the existence of the flowline.

At a news conference last week, COGCC Director Matt Lepore acknowledged in response to a question that “at one time there were flow lines” running from the well northward to a near processing facility. What he did not say, however, is that the original line still existed and had been severed right where the Martinez’s home was built.

The spot where it was cut has been cordoned off by bright orange plastic netting and yellow police tape after the fatal blast.

Public and private investigators and inspectors working on and near the site have said for more than a week that they were ordered by the agencies and companies employing them not to comment about the line, and told – several times – that, if they do, they could lose their jobs and be sued.

“It’s a tight ship,” a source close to the probe said earlier this week. “But…this story needs to get straight because this don’t seem to be a problem with that well itself as much as a problem with … the broader system.

“Why they’re not telling you that, I don’t know.”

The home’s developer, Century Communities, wouldn’t comment on why the flowline wasn’t removed when the home was built, passing our inquiry to public relations consultant Andy Boian.

“Why not get rid of it? Good question,” Boian said about the flowline this morning. “I’ll get back to you on that.” Boian called back to say, “We don’t have any answers yet.”

In the same interview, he said both that Century Communities knew about the flowline and didn’t know about the flowline. When asked to clarify, he added, “We know nothing more than what you do.”

Anadarko last week shut down more than 3,000 vertical wells in response to the blast, leaving residents of Colorado’s ever-developing gas patch wondering if wells near their own homes or businesses are putting them at risk and if requirements for greater distances, or “setbacks” between wells and homes or businesses are needed.

The fire chief went out of his way at today’s press conference to say the well and its distance from the house were not the issue, and that the pipeline was: “I also want to note, given the attention on this issue, the proximity of the well to the home was not a contributing cause in this incident or investigation. It was the pipeline rather than the wellhead that caused a buildup of methane that led to the explosion.”

In light of the fire department’s findings today, safety issues concerning abandoned or faulty pipes – which often are significantly closer to homes than wells, and far less regulated by the state – will no doubt heighten concerns and amplify Colorado’s oil and gas debate.

“Oil and gas operations and neighborhoods don’t mix very well,” Democratic Rep. Mike Foote, of Lafayette, who earlier this session pushed for a bill mandating a 1,000-foot setback for wells from school property lines, told The Independent.

“We’ve been trying to bring this issue up and get some positive change on the issue for several years but the industry has remained steadfast against any kind of change.”

Dan Haley, president and CEO of the Colorado Oil and Gas Association, said in a statement today that community safety is the industry’s “highest priority,” and that in the coming weeks and months, “we will endeavor to enhance flowline and pipeline procedures and remain committed to improving Colorado oil and gas production.”

Gov. John Hickenlooper, a former oil and gas geologist, today called for a statewide review of existing oil and gas operations, including flowlines within 1,000 feet of occupied buildings. The state wants to ensure that all lines that aren’t in use are properly marked and capped, and that all abandoned lines are cut below the surface and sealed.

At a second news conference this afternoon, COGCC’s Lepore gave mixed messages about who’s responsible for the abandoned line that has devastated a family, shaken Firestone and left Coloradans on edge.

Answering that question at first, he responded, “We would look to Anadarko to see if it followed and was in compliance with our rules.” But then he wavered, saying, “Anadarko might, as a response to our enforcement actions, say wait a second, we can show that somebody else is responsible.” Later he said, “We don’t really know who is responsible. Anadarko was able to take over this well and didn’t realize that something was so awry.”

The COGCC is the arm of the state tasked with keeping Coloradans safe from ever-increasing oil and gas development. Lepore said last week that his agency “does not have specific rules for development being located over flowlines.”

The agency does, however, have rules for abandoned lines. Rule 1103 of COGCC pipeline regulations regulations clearly says those lines need to be disconnected from wells.

A recent Colorado Court of Appeals decision found that the COGCC must ensure the protection of public health and the environment before allowing oil and gas drilling.

The name of that case, coincidentally, is Martinez v. Colorado Oil and Gas Conservation Commission.

Reporters Kelsey Ray, Tina Griego, Corey Hutchins and Marianne Goodland contributed to this report. Photo by Dennis Herrera

The agency tasked with regulating Colorado’s oil and gas industry has no record of the abandoned storage and processing site to which the severed gas line that caused last month’s fatal home explosion in Firestone originally led, The Colorado Independent has learned.

Nor does the Colorado Oil and Gas Conservation Commission, or COGCC, have paperwork for the same kind of site, called a tank battery, currently connected to the well responsible for the blast — nor for most battery sites connected to wells throughout the state.

The state started requiring such documentation in the spring of 2009, but did not apply the rule retroactively, leaving older equipment that was or even remains connected to most of Colorado’s more than 54,000 existing wells unrecorded.

Without requirements to keep track of infrastructure that was in place before the regulation took effect, the COGCC’s main proof that the now-abandoned battery site existed are old satellite images. There’s no state documentation indicating when that battery site – owned by Anadarko Petroleum – was disconnected from the line that later caused the Twilight Avenue explosion. Likewise, there’s no record showing why that line was abandoned without apparently having been capped on both ends, when and by whom it was severed right near the home on Twilight Avenue, or why, over the course of more than a decade, no one seemed to notice. An investigation led by the National Transportation Safety Board (NTSB) is underway.

The COGCC’s lack of documentation raises a broader question about the state’s ability to protect Coloradans from the vast underground, unmapped and unregulated webs of oil and gas infrastructure around which homes, schools, parks and business are being built.

Bruce Baizel, energy program director for environmental watchdog group Earthworks, says it’s “classic agency behavior” for the COGCC to enact regulations that do not apply retroactively. With so much older infrastructure in place throughout the state, he adds, that can lead to a worrisome lack of oversight.

“If you don’t measure it, if you don’t regulate it, you just ignore it,” Baizel says. “And in this kind of industrial activity, the logical outcome of that is that it comes back to haunt you with this kind of an accident.”

A tale of two wells

Understanding the deadly explosion on April 17 requires familiarity not only with the well located 178 feet from the home at 6312 Twilight Ave. and its attached lines, but also with the oil and gas infrastructure spanning the once-open patch of land that became the Oak Meadows neighborhood starting in 1999.

Officially, the well responsible for the explosion is called Coors V 6-14Ji. For simplicity’s sake, let’s call it “Well A.” Hydrocarbons flowed underground from Well A, drilled in 1993, through flowlines to storage tanks on a battery site about 2,000 feet to the northwest. That battery site also served other wells, including one immediately to its east. We’ll refer to this second well, officially named Coors Fee 3-6, as “Well B.”

In 1999, development company Century Communities started building roads and houses in the area. As a result, sometime between 1999 and 2002 — the COGCC can’t say exactly when because it didn’t require paperwork at that time — the flowlines needed to be reconfigured so that they didn’t run for more than a quarter mile underneath the new subdivision.

The oil and gas extracted from southern Well A was rerouted, through new flowlines, to a new battery site built to the west, rendering the old flowlines that had connected Well A to the old battery site near Well B obsolete.

These abandoned lines, about seven feet underground, remained intact, as is standard practice in the industry. Rather than remove the buried pipes, oil and gas operators instead abandon such lines “in place” by removing all hydrocarbons, capping both ends and conducting pressure tests to ensure that they are no longer connected to any drilling activity.

In the case of a two-inch diameter flowline connecting Well A to the old battery site, such precautions appear to have been properly followed. But with the line that would eventually leak the highly explosive gas into the home of Mark and Erin Martinez — a smaller, low-pressure, one-inch return line, which ran parallel to the larger line — such protocol apparently was ignored. (Return lines move small amounts of natural gas from wells to the tank battery to power the machines, called “separators,” which separate oil from natural gas. They are a kind of flowline, which move hydrocarbons from wells to the battery sites.)

Mark and his brother-in-law, Joey Irwin, were killed in the resulting explosion as they were replacing the hot water heater in the basement. Mark’s wife, Erin Martinez, was severely injured and remains hospitalized.

The results of the Frederick-Firestone Fire Protection District’s investigation showed that at the time of the explosion in mid-April, Well A was still connected to a few hundred feet of that smaller underground line, which at some unknown time had been neatly severed where the Martinez home was built in 2015.

After the blast, inspectors found the southern end of the line, at the wellhead, was topped not with a cap, but with a valve.

Inexplicably, that valve was found in the “on” position.

Diagram showing the well, flowlines and tank of the Coors V6-14Ji — Well A. (Via Anadarko Petroleum.)

No looking back

COGCC officials can’t explain why a line that was abandoned as far back as 1999 was still connected to an active well more than 15 years later. And the agency’s massive database offers no clues.

Until 2005, COGCC rules mandated that oil and gas companies follow a particular procedure for abandoning flowlines, but did not require paperwork documenting the process. Not only does the agency not know for sure when the return line that once ran through the Twilight Avenue property was abandoned — “between 1999 and 2002,” says spokesman Todd Hartman — but there is no documentation explaining why one end of the line remained attached to Well A after the line was no longer in use, or why the valve was left on.

In 2008, the state legislature increased the COGCC’s authority to enact new regulations addressing a wide swath of issues related to reclamation, permitting and abandonment of oil and gas sites. The overhauled rules, which became effective in the spring of 2009, were intended to “protect public health, safety, and welfare… from the impacts resulting from the dramatic increase in oil and gas development in Colorado.”

Those regulations require, among other things, that operators record battery sites built after spring of 2009 in documents that are made public on the COGCC database. They also mandate that each time oil and gas companies drill a new well, they submit an inventory of all related infrastructure equipment, such as battery sites, pits and flowlines so that when the well is ultimately shut down and abandoned, there’s a full accounting of what remains and what doesn’t. But those safeguards don’t apply to the battery sites for Wells A and B, because that infrastructure was in place well before the new rules took effect.

Ownership of both Well A and Well B changed multiple times, as is often the case given the volatile fluctuations in the oil and gas market. Records show that in the three decades since it was drilled in 1983, Well B has had six different owners and operators; Well A has had five since being drilled in 1993. It’s unclear what each of those companies knew about the detailed histories of each part of the systems they bought. The Colorado Independent asked both Anadarko and former owner Noble Energy about the history of the abandonment processes, but spokesmen from both companies declined comment, citing the ongoing investigation.

Operator responsibility lies at the heart of the lawsuit that Jeffrey and Karla Baum, owners of the house two doors from the Martinez home, filed Monday. The suit against Anadarko Petroleum, Noble Energy, land developer ST-Firestone LLC and home builders Hearth at Oak Meadows LLC and CC Communities LLC, seeks damages for alleged negligence, saying both the oil and gas companies and the developers had a responsibility to “confirm the existence, proper abandonment and removal of all oil and gas production related facilities so as not to endanger residents of Oak Meadows, generally and including the Plaintiffs.”

The lawsuit argues that the defendants either knew or had the ability to know about the potential dangers presented by the unmapped and improperly abandoned line. Their failure to adequately protect the neighborhood, the plaintiffs say, has caused them damages including “physical injuries, post-traumatic stress, mental anguish and severe anxiety, damages to personal and real property,interference with their use and enjoyment of property, annoyance…loss of peace of mind, and diminution of real estate property value.”

Colorado has more than 54,000 active wells, but COGCC’s database records only 1,400 battery sites. Even taking into account that wells often share battery sites, and that some wells don’t require them at all, the numbers nonetheless convey a large discrepancy.

That discrepancy leaves prospective homebuyers and current residents in the Oak Meadows neighborhood and elsewhere throughout Colorado’s gas patches in the dark about the history of oil and gas activity around them and whether, as was the case on Twilight Avenue, equipment was recklessly abandoned.

The COGCC says it has taken steps to document “a lot” of older battery sites in floodplain areas since massive flooding hit some of those sites in the Front Range floods of 2013. But there are no state efforts on the books to record all battery sites that were in place before 2009.

“We’re working through that as we progress forward,” says COGCC engineering manager Stuart Ellsworth.

The industry may not embrace the agency’s efforts. In a direct reaction to public outcry after the Firestone explosion, Reps. Mike Foote of Boulder and Steve Lebsock of Thornton proposed a bill requiring the mapping of all flowlines in Colorado. In the final week of this year’s legislative session, a Republican filibuster spurred by heavy opposition from the oil and gas industry managed to kill it.

The tank battery at the site of Well A in Firestone. (Photo by Susan Greene.)

A line to nowhere

In the aftermath of the April 17 blast in Firestone, and the revelation that an abandoned flowline had caused it, The Independent went searching for documentation about the line itself. Finding none, we then searched for records of the battery site to which the line once carried oil and gas from Well A, thinking that those documents might offer insight into the capping and abandonment of the line years earlier.

Not finding them in the COGCC’s database, we asked the agency for help.

Agency spokesman Hartman and engineering manager Ellsworth directed us to open the agency’s GIS mapping software and zoom in on the area in question. Satellite images from 2009, 2011 and 2013 showed two white cylinders in a dirt field.

“So there you go. That’s it,” Ellsworth said as he guided The Independent through the imagery. “That’s the facility.”

The mapping software’s most recent satellite photos, from 2015, show the same patch of brown dirt, sans cylinders. In 2014, Anadarko officially abandoned Well B, citing poor production. Today, all that exists on land where the battery site stood is a single metal pole etched with the words Coors Fee 3-6 in the middle of a patch of prairie above the neighborhood park.

COGCC rules require companies to follow and document a specific set of safety precautions when abandoning wells. Anadarko did so, filing the paperwork in November 2014. But the company wasn’t required to document the abandonment of the nearby battery site — again, because COGCC regulations did not apply to batteries built before 2009. Beyond the “after” satellite photos, the COGCC’s only confirmation that Anadarko abandoned the site itself comes from a single form, completed by an agency inspector, showing that he visited the location and eyeballed no tanks, trucks or other equipment.

As Ellsworth explains it, “He went out there and he saw no pieces of equipment, he saw no pits, everything looked great, so he was done.” The COGCC gives operators three months to remove tanks and other related equipment after abandoning a well. The inspector filed his form on Jan. 25, 2016, 14 months after Anadarko formally abandoned the well.

COGCC regulations on the books today would have offered multiple opportunities for keen-eyed operators and inspectors to notice the problematic flowline, from mandating documentation of the abandonment process to requiring a thorough inventory of everything surrounding the tank battery site.

Earthworks’ Baizel argues that a required inspection of the old battery site likely would have alerted Anadarko to the wayward line. “Common sense says to ask, ‘Where does this pipeline go?’” he says. But, he says, “If it’s not on the checklist, it becomes invisible.”

COGCC’s Hartman and Ellsworth disagree. They say that an inspector at the battery site would have no reason to believe that anything unusual was happening with the return line. When Well B was abandoned, Hartman says, workers would have assumed that the line that once connected the tank battery to Well A had been long defunct, “so work in 2014 would not have likely raised a flag.”

Workers may not have even seen the old flowline when abandoning the tank battery, though that’s unknown. Again, Anadarko and Noble did not respond to questions about the abandonment process at the tank battery. But COGCC protocol did not require operators to cut off abandoned flowlines below ground level at the time Well A’s flowlines were abandoned around 1999, Ellsworth says, so the problematic line likely was left sticking out of the ground.

Still, Hartman says that it could have been chopped off to ground level at any point after 1999. Without documentation, it’s impossible to tell. He says it even could have been removed entirely at some point throughout the neighborhood construction process, leaving no trace at all.

Flowers near the site of the fatal home explosion on Twilight Avenue in Firestone. (Photo by Tina Griego).

Fatal assumptions

The investigation into the explosion in Firestone is ongoing, and answers remain elusive. But questions are plentiful: What happened during the original flowline abandonment process? Who turned the valve on after Well A was reactivated in January 2017? Why did nobody notice the problem over the course of more than a decade?

Anadarko spokesman John Christiansen referred The Independent’s questions on these matters to the National Transportation Safety Board, which is leading the investigation because pipelines are considered a mode of transportation. NTSB spokesman Eric Weiss in turn told The Independent that Anadarko could answer any questions that “could have been answered the day before the accident,” but Anadarko did not respond to follow-up requests. Noble also referred questions to the federal agency.

The NTSB expects to conclude its investigation into the accident in 12 to 18 months, and hopes to have a publicly available “accident docket” on its website, with interviews, inspection records and other materials, in about six months.

In the wake of the tragedy on Twilight Avenue, Gov. John Hickenlooper called for a rapid-fire inspection of every well and flowline within 1,000 feet of a home. The COGCC has ordered operators to detail the coordinates of all flowline endpoints and to properly abandon any lines no longer in use.

But for many Coloradans, these measures are inadequate. Earthworks’ Baizel bluntly contends that because the COGCC routinely allows regulatory exemptions for existing infrastructure, “we have two dead people.” At a COGCC hearing on May 1, concerned residents packed the meeting room, clamoring for the state to do something about safety.

“Why are you allowing this?” one woman shouted at the commissioners. “Why are you putting my children at risk? And your own?”

For these and other residents in oil and gas patches throughout the state, the vast network of decades-old infrastructure represents a frightening web of threats.

“FIGURE THIS OUT,” the woman at the commission meeting yelled, “before you allow more wells and more ticking time bombs to go off under another person’s home. And don’t tell me this had nothing to do with oil and gas. It’s not the first time, and it’s not the last.”

Ellsworth says he can’t speculate about what happened with the line in question. But he can say that, given all the housing construction in the Oak Meadows neighborhood, it would have been reasonable for operators, years later to assume that the line was defunct and abandoned. “I want you to realize,” he says, “that when this subdivision was built, there was no line that fully connected all the way, because of the numerous amounts of basements, sanitary sewer lines, all that construction when it occurred throughout from 1999 to current.”

In other words, for more than a decade, builders and drillers working near Twilight Avenue did so assuming that with so much construction taking place in the area, an active line couldn’t possibly remain underneath.

The aftermath of the Firestone explosion, May 16, 2017. (Photo by Tina Griego).

On Tuesday, Anadarko announced that it will permanently sever all of its one-inch return lines in the Oak Meadows neighborhood. The company also says it will be paying for methane detection equipment for homeowners and for the cleanup and upgrade of the neighborhood park. The company shut down 3,000 wells in northern Colorado while it conducts its own safety inspections.

The scene in the neighborhood remains surreal. A pile of blackened debris marks is all that remains of the Martinez house. A chainlink fence laced with limp crime scene tape envelops the lot, the park on one side and a neighbor’s home on the other. A sidewalk memorial of drying flowers leans against the fence in front of the home.

The well from which the deadly return line once led sits to the southeast. From it runs a trail of fluttering yellow flags marked ANADARKO FLOW LINE that heads west along the back fences of neighbors to the tank battery.

A neighbor working on his yard across the street from the Martinez home Tuesday morning says he heard that another neighbor had filed a lawsuit against Anadarko, Noble and the home builders, but he says he has no interest in doing the same. Nor does he have any interest in having his name in the paper.

He says he went to the homeowners’ association meeting a couple weeks back and Anadarko answered questions to his satisfaction. And, he adds, the fire department has assured everyone that the neighborhood is safe.

“I have no reason to doubt them.”

Just behind the Martinez house, construction continues on an apartment complex. The beep and roar of bulldozers, the sound of hammering and the workers’ shouts all carry in a breeze that still smells faintly of charred wood.

Cover image by Susan Greene.

Susan Greene and Tina Griego contributed to this report.

A constitutional crisis.

The phrase kept popping up Thursday when Attorney General Cynthia Coffman seemed to have bucked Gov. John Hickenlooper’s wishes by appealing a court ruling requiring the state to prioritize public health and safety concerns over its policy of fostering oil and gas development. Hickenlooper’s office announced, to much praise, that he objected to appealing the anti-industry legal decision.

But what the announcement didn’t say was that the governor won’t be challenging the appeal – despite his assertion that the decision on whether to file it was his.

“The attorney general and I have had disagreements on this before. This isn’t the first time,” Hickenlooper said Friday.

For all the speculation about a possible breach of constitutional separation of powers, the governor seemed notably unconcerned that his authority had been usurped on a landmark regulatory ruling.

He waited until 11:30 Thursday morning to publicly weigh in with a statement saying he opposed an appeal.

But it was too late to matter. Coffman already had filed it earlier that morning.

Questions since have been mounting about how wholeheartedly Hickenlooper objected to the appeal and how hard he tried to stop it.

“I don’t know if Coffman was providing Hickenlooper cover on this or what. But when you look at his background doing everything he can to support the oil and gas industry, it makes one wonder how sincere he was in his opposition to that appeal,” says state Rep. Joe Salazar, a Democrat from Thornton who’s running for attorney general.

Thursday marked the deadline for the state to challenge a ruling in Martinez v. The Colorado Oil and Gas Conservation Commission. A group of teen activists, including 17-year-old hip-hop artist Xiuhtezcatl Martinez, sued COGCC – the state agency responsible for regulating the industry – after it refused their demand that it stop issuing new drilling permits unless “the best available science demonstrates and an independent third party organization confirm that drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado’s atmosphere, water, wildlife, and land resources, does not adversely impact human health and does not contribute to climate change.”

On March 23, the Colorado Court of Appeals reversed a district court decision that had favored COGCC and the industry. The appellate decision reinterpreted the agency’s mission to require that it base its regulatory decisions more on health and safety concerns than on oil and gas boosterism. COGCC long has struggled to balance its growing mandate to protect Coloradans from the effects of fossil fuel production with its original, 1950’s-era mandate to “foster” the interests of oil and gas production.

The industry has become a party in the suit and filed its own appeal of the decision it says could make it infeasible to do business in Colorado. Oil and gas companies have threatened to pull out of the state for several decades as environmentalists and residents have amplified their call for tighter regulations. In the meantime, the industry’s presence here has grown exponentially.

Conservation groups had been pressing Hickenlooper’s administration since April to let the Martinez decision stand. But by several accounts, including the governor’s, he was slow to weigh in on the issue.

“I can truthfully say we were re-evaluating [late]. [It’s] not like we made decision and sat on it for a while,” Hickenlooper said Friday.

Things got prickly on May 1, two weeks after the April 17 deadly explosion of a home in Firestone, which was caused by an unregulated Anadarko Petroleum line. That’s when the Hickenlooper-appointed COGCC board voted unanimously to appeal the Martinez ruling to the Colorado Supreme Court. Conservation groups were particularly galled that two of Hickenlooper’s agency chiefs who serve as voting members of the commission’s board – Bob Randall, executive director of the Department of Natural Resources, and Larry Wolk, executive director and chief medical officer of the Colorado Department of Public Health and Environment – cast votes to appeal.

Conservationists say administration officials seemed surprised by their displeasure. Even those outside the environmental community took notice that the COGCC’s vote made Hickenlooper look particularly tone-deaf at a time when the state is still reeling from the blast in Firestone that killed two men and gravely injured one woman.

In the past week, 13 state lawmakers, 39 local government officials and 1,539 Coloradans signed a letter asking Hickenlooper to let the Martinez decision stand. They hoped that he and the COGCC would let Thursday’s appeal deadline come and go without challenging the ruling.

In many ways, the administration’s response was classic Hickenlooper.

Colorado’s second-term governor is a savvy marketer with a a flare for political messaging and a keen read on shifts in public opinion. He’s also a former oil and gas geologist who has championed the industry so ardently that he once drank fracking fluid in a U.S. Senate committee hearing. And he’s a pleaser, a conciliator with a long history of avoiding strong stands on controversial issues. He has a habit of distancing himself from his own agencies. His hands-off management style wins him praise as a leader who empowers his appointees, but also criticism as a politician who dodges responsibility.

In terms of optics, spinmeisters rate Hickenlooper’s handling of the sticky Martinez issue with an A+.

“Nobody, and I mean nobody could wiggle his way between this particular rock and hard place better than Hick,” said one public relations consultant who has worked with the governor, although not on this issue.

“John knows how to turn lemons into lemonade… (and) how to make people feel great about drinking it,” added a former Hickenlooper staffer.

Yet political messaging isn’t the measure by which everyone judges the governor’s handling of a court ruling that has broad implications for how Colorado regulates an industry whose infrastructure is weaving ever more tightly into Front Range communities, as the Firestone tragedy illustrated all too painfully.

Sara Loflin, executive director of the League of Oil and Gas Impacted Coloradans, represents 10 community groups from Battlement Mesa to Windsor that express concerns of “literally thousands of people … looking for leadership, for assurances that their health and safety comes first when it comes to oil and gas development.” Loflin credits Hickenlooper for making “some interesting first steps” since the Firestone blast by ordering inspections of all oil and gas lines within 1,000 of an occupied building and promising that “never again” will such an explosion rock a community in this state.

“But if his sentiments are sincere, if those are sincere sentiments, I’d ask why isn’t he pushing harder to drop the suit,” Loflin said. “I know COGCC is supposed to be an autonomous agency, but it’s an agency that he appoints every last commissioner to, including voting members of his own administration. The entirety of that commission and staff serve at his pleasure.”

Hickenlooper’s office has taken the position that the COGCC’s May 1 vote to appeal Martinez was merely advisory and that “the statute governing the commission’s powers does not include the authority to initiate an appeal in this case.”

“We see no statutory basis … for the commission to challenge a court’s interpretation of its organic statute. That decision is more properly made by the Governor’s office, and we have determined that an appeal is not required at this time,” reads a letter the governor’s chief legal counsel, Jacki Cooper Melmed, wrote Deputy Attorney General Laura Chartrand shortly before noon Wednesday asking that an appeal not be filed.

Coffman apparently ignored the request, saying her office has the statutory power to appeal because the COGCC is its legal client. In addition to its role as the state prosecutor, the attorney general’s office serves as the law firm representing state agencies. Coffman’s office did not return repeated requests for comment.

Coffman – a Republican who, like Democrat Hickenlooper, has had considerable campaign backing from oil and gas companies – argues that COGCC interprets state laws governing it in a way that does not permit “one policy concern to override all others.” Her appeal, called a petition for cert, cites case law that it argues “never suggested that policies favoring public health and the environment are a ‘mandatory condition’.”

That argument starkly contradicts Hickenlooper’s assertion that “the commission already elevates public health and environmental concerns when considering regulating oil and gas operations.”

Hickenlooper didn’t answer The Colorado Independent’s question Friday about whether Coffman usurped his power by filing the appeal. But he did say this about his own handling of the Martinez ruling (all sic):

“I look at, the COGCC is already holding public safety and environmental issues paramount. … You’re talking to someone, when I was in private sector for 27 years, I was never sued, nor did I ever sue. … [It’s]important to look at whether this is worth all the cost and investment.”

He added that his office had been in frequent contact with the attorney general’s office and that his opposition to appealing was “not a surprise to them.”

Boulder County District Attorney Stan Garnett lauds Hickenlooper for stepping out of the fray when there’s no clear constitutional guidance about whether the governor may override the attorney general.

“I think the governor is handling this honorably,” he said, adding that a Supreme Court decision would offer legal clarity about what COGCC’s primary regulatory consideration should be.

Conservationists see Hickenlooper’s decision not to challenge Coffman’s appeal and her authority to file it as his tacit approval of trying to overturn Martinez.

“The attorney general cannot bring a Supreme Court appeal on behalf of the COGCC without that agency’s consent,” said Mike Freeman, a lawyer with EarthJustice. “He hasn’t used the tools at his disposal to avoid this appeal.”

Those tools, as Freeman sees it, would have included asking the COGCC’s board to reconsider its May 1 vote to appeal the Martinez ruling or, now that the appeal has been filed, legally challenging Coffman’s power to have done so on behalf of an agency the governor controls.

Dan Leftwich, one of the lawyers representing the young plaintiffs in the case, says one of two constitutional principles have been broken in deciding to challenge the appellate court ruling.

One, he says, is that COGCC’s board members acted without the statutory authority to bring the appeal – a situation in which non-elected officials asserted state power that’s not granted to them by statute. This is essentially Hickenlooper’s argument.

The other, Leftwich adds, is whether Coffman overstepped her statutory authority. If need be, he says, he’ll be challenging her authority in court.

He and other critics say it’s clear that politics rather than statutory power are driving the state’s reaction to the Martinez decision.

“The governor apparently made a political calculation that he can have a public stance that makes it appear that he’s in favor of protecting the public health, safety and the environment above oil and gas development while at the same time, under his branch of government, allowing an appeal that does the opposite,” Leftwich said. “What it says to me about his power is that he’s unwilling to use it.”

Added Bruce Baizel, a Durango-based oil and gas lawyer who heads Earthworks’ Oil and Gas Accountability Project: “When he comes out [publicly] now after petition for cert is filed, I just find it the height of cynicism. It’s really a grandstand play by the governor to claim credit when he has been actively opposing us.”

The political fallout from the Martinez appeal may be greater than the legal fallout. Colorado’s Supreme Court typically grants less than 10 percent of the petitions for cert filed each year. Odds are that the court won’t hear the appeal.

State Rep. Jonathan Singer, a Democrat from Longmont, calls himself an “eternal optimist” and chooses to see progress where he can find it. Having seen his constituents’ pleas for regulatory protections from the fossil fuel industry “fall on deaf ears” in Hickenlooper’s office, he says he’s pleased to see the governor finally “taking our voices to serious account.”

“(I’m) happy and proud he took that to heart,” Singer said of the letter he and 12 fellow lawmakers sent Hickenlooper earlier this week.

Still, he noted, he has one regret: “(We) should have written to (the) AG.”

Colorado Independent reporters Kelsey Ray, Marianne Goodland, Corey Hutchins contributed to this report.

Leon Martinez never expected to fall prey to a sucker loan.

“You read about it. You hear about it happening to people. And you kinda think they deserve it, right?” he says.

His cycle of debt started the way many people’s do. A few years ago, he needed to take time off work because of an emergency in his family, but didn’t want to fall behind on his rent. So the 38-year-old nursing assistant from Lakewood borrowed about $4,500 from Springleaf, now known as OneMain, the nation’s largest subprime lender.

Several months into the loan, he borrowed another $1,200 or so in what he didn’t realize was a second loan with a second set of fees. He says he also didn’t realize that he had been paying all along for three loan insurance policies he wasn’t aware he’d agreed to. He defaulted on that “renewed loan.” By the time OneMain sued him, won a court judgment and finished garnishing his paychecks this spring, he says he paid about three times the amount of his original loan.

Martinez realizes that plenty of people will blame him for not having saved money for an emergency. And for not reading OneMain’s fine print carefully. And for ignoring the age-old admonishment, caveat emptor: buyer beware.

“I know. I messed up,” he admits.

Yet that admission doesn’t ease the ire he has for OneMain, other lenders like it, and state officials whom he says allow companies to prey on Coloradans in financial trouble.

“I never used to follow politics or be involved in these policy things. It was always just me, myself and I. But the more I find out, the more depressed I get,” he says. “Sometimes I feel like the whole system is set up to keep the people at the bottom at the bottom. It doesn’t seem right that laws are set up so that people who have money just make things worse for people who don’t.”

Martinez is one of thousands of Coloradans who’ve become far more tightly entangled with subprime lenders than they expected when they borrowed money. What sets him apart is simply that he’s willing to talk about it publicly.

Subprime installment loans cover amounts higher than payday loans but lower than home mortgages or refinances. Nationally, the average amount is about $6,000, with a repayment period of three to six years and an average annual interest rate of about 26 percent. Rates in Colorado are slightly lower.

Consumers with low credit scores that disqualify them from prime interest-rate loans often seek subprime loans to buy cars or pay off credit card debts. Some borrow out of more urgent needs such as bailing a family member out of jail or paying for a funeral.

The Indiana-based OneMain – which operates 1,800 branches in 44 states – is among many companies that cater to low-income consumers who are in financial binds. In Colorado, it’s by far the biggest player in the subprime lending sector. The company has called special attention to itself here by trying to bend state regulatory policies to its favor.

During the 2015 and 2016 legislative sessions, when interest rates were near record lows, OneMain sought state lawmakers’ approval to increase Colorado’s blended interest rate structure. Its lobbyists said the company needed to hike its rates to meet its operating costs and to expand lending in what it called Colorado’s “financial deserts.” They argued that residents here have an urgent need for OneMain’s type of services.

“On face value, that just sounded completely wrong. It felt like a money grab to me,” says Michelle Webster, manager of research and policy analysis at The Colorado Center for Law & Policy.

The Denver-based watchdog group took a close look at OneMain’s lending practices, which Webster concluded “can be deceptively expensive for borrowers.” “If OneMain has its way, Coloradans will pay even more to borrow,” reads her report, “Paying More to Borrow: Subprime Lender Thrives While Colorado Consumers Struggle,” released this month.

OneMain derides the report as being full of misrepresentations.

“Some, I think, are unintended and others, I think, it’s not clear,” company Executive Vice President John Anderson tells The Colorado Independent. “When you actually start parsing what the study says, there are a lot of inaccuracies, which make you wonder about the integrity of the work that was done.”

The report is based on the center’s review of nearly 200 collection cases filed by OneMain against delinquent borrowers in the city and county of Denver. It found that 75 percent of those loans included expensive fees for loan insurance policies and other add-ons that purport to protect borrowers in case they lose their jobs, become disabled or die.

Webster and her team found that insurance premium payments are rolled into the cost of loans, plus interest, amounting to an average 18 percent – or $1,200 – increase in what borrowers owed. The credit insurance policies are sold by companies that happen to be subsidiaries of OneMain, which also receives commission on the premiums.

According to the report, subsidiaries Merit Life Insurance and Yosemite Insurance Company have weak records when it comes to paying consumers for their claims. Those records are based on their “loss ratios” – total claims paid as a percent of earned premiums. in 2016, Merit’s loss ratios for credit life policies and disability insurance were 47 percent and 42 percent, respectively, and Yosemite’s loss ratio for unemployment and property insurance coverage was lower – 14 percent.

The standard loss ratio for credit insurance should be at least 60 percent, according to the National Association of Insurance Commissioners. Consumer advocacy groups say it should be closer to 80 percent.

The report says these “high-priced, low-value” add-on policies “are optional in name but predatory in nature” because borrowers aren’t always aware they’re buying them. What’s more, it asserts, is that the insurance policies mainly minimize the risk of default for OneMain, not the borrowers who buy them.

In this context, Webster points out, calling the add-ons “loan protection products” is misleading. They are, instead, “a cash cow,” she says.

Nearly half of the Denver default cases the center examined were renewals of prior loans that were rolled over into new loans. The report alleges that, in doing so, OneMain engages in a deceptive practice known as “default masking.” More than half of the Denver borrowers who defaulted on loans had their wages garnished by OneMain, and 43 percent filed for bankruptcy, typically after the company filed against them in court, the report found.

Nationally, OneMain borrowers have complained that they declined loan insurance add-ons only to have them added anyway. Some have said they agreed to buy the insurance policies without having been given documentation of them or told how those policies would affect their monthly loan payments. And some, like Martinez, say they weren’t aware that by increasing their loan amounts mid-term they were actually taking on new loans with new terms.

OneMain’s Anderson, who serves as chief legal counsel, counters that the company takes deliberate and repeated steps to be transparent. He provided The Independent with examples of paperwork the company sends customers before and after they signing loan agreements indicating – he says in clear terms – that they have a choice of whether to buy the add-on policies at closing and then are given the option to cancel within 30 days of closing with a full refund.

“We pride ourselves in making sure that it’s sold as optional insurance. Borrowers are told that. This isn’t something that’s buried in a footnote in (an) agreement on page 40. These are separate papers they sign,” he says. “We make it very difficult that someone would not be aware that the insurance is optional.”

The Center for Law and Policy’s Webster doubts that OneMain’s agents don’t prod customers toward buying the add-ons. “You wouldn’t have a 75 percent rate of borrowers buying these insurance policies if there wasn’t some steering happening here.”

Anderson says customers are apt to forget they bought insurance policies, saying what they “may remember two or three years after they took the loan is not necessarily what they knew at the time of the loan.”

He objects to critics labeling OneMain as a “predatory lender,” saying that, before selling a loan, the company ensures that potential borrowers have sufficient disposable income to be able to afford a loan, and to afford a loan renewal.

“The study is misleading in characterizing what we do as masking defaults. We don’t participate in it and we object to being characterized as conducting our business that way. We won’t engage in that practice.”

He counters the report’s assertion that OneMain charges more than other banks for similar loans, naming companies he says charge “significantly” higher annual percentage rates. And he says there have been “zero” borrower complaints in Colorado about OneMain’s add-on insurance products, and notes that his company discloses that the insurance companies underwriting the policies it sells are its own subsidiaries.

“Whether (borrowers) fully appreciate that, it’s hard to say.”

Watchdogs urge potential borrowers to carefully read – and re-read – the fine print of any loans documents, and to read between the lines, as well. Despite the urgency for quick cash, they advise consumers to take their time and ask plenty of questions before signing.

Says Ellen Harnick of the Center for Responsible Lending, a nonprofit working to ensure fair lending practices nationwide: “The problem is that these loans end up being much more expensive than people think.”

That was the case with Sarah Boyd of Denver who in January 2015 took out a $2,100 loan with a nearly 31 percent interest rate to consolidate debt as she tried to launch a clothing business. She lost her job five months later. Unlike the companies backing her student loan and credit card, she’s galled that OneMain “wouldn’t work with me at all.”

“So that was pretty shitty,” says Boyd, now 28 and a drafter at an engineering firm who says she has spent two years paying down penalties and extra fees she likens to a noose around her neck.

“Warn people about doing business with OneMain,” she adds.

The Center for Law and Policy staff will meet next week with state Attorney General Cynthia Coffman’s office to discuss the report’s findings. Judging by the high rate of borrowers who buy OneMain’s insurance products, they’re particularly interested in learning if such purchases are, in fact, voluntary.

The center and other watchdog groups are looking into possible consumer protections such as requiring lenders to advise borrowers in writing that they don’t have to buy loan insurance and other add-ons, and requiring lenders to spell out in writing what borrowers’ monthly payments would be both with and without the extras. States without those type of consumer protections in place, the National Consumer Law Center concluded, are essentially giving lenders a way to circumvent rate caps and charge more for loans.

Coffman’s office hasn’t answered inquiries about its take on the center’s report and what, if any, consumer protections the Attorney General might support.

Had they been in place two years ago, Martinez says those types of regulations may have saved him money he otherwise could have put away for his daughter’s college education or for a family emergency like the one he didn’t want to discuss that led him to borrow from OneMain in the first place.

After months of wage garnishment, he finally managed to free himself from his debt to OneMain this spring. He recalls with relish the last phone call he made to the company and what he told its agent.

“I called basically to get it off my chest, you know. So I told her, ‘There’s a special place in hell for people like you.’”

See related coverage of questionable lending and debt practices in Colorado. “CO lawmakers want to give consumers more protection against “zombie-debt” collectors” and “Veterans feel ripped off by Colorado for-profit college.”

Photo by Susan Greene.

You’ve probably heard lately about the Colorado Oil and Gas Conservation Commission, commonly called the COGCC.

That’s Colorado’s governor-appointed panel tasked with regulating the state’s oil and gas development. It’s a big deal in Colorado, a major fracking state with a robust environmentalist community. The commission has a dual mission: To promote oil and gas development, and to regulate that development.

The actual specific scope of that mission, however, is right now the focus of a high-profile legal dispute — and one that pits Gov. John Hickenlooper against Attorney General Cynthia Coffman.

In the middle are the nine current members of the COGCC, three of whom talked— though not much— to The Colorado Independent about their thoughts on the role of a panel that’s getting plenty of attention following a controversial Court of Appeals decision and a spate of recent gas explosions.

First, some background about that legal dispute: In 2013, a 16-year-old Boulder hip-hop artist named Xiuhtezcatl Martinez and a handful of other teenagers petitioned the COGCC to establish a new requirement that it not approve new permits for drilling in Colorado, “unless the best available science demonstrates, and an independent third party organization confirms, that drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado’s atmosphere, water, wildlife, and land resources, does not adversely impact human health and does not contribute to climate change.”

Formed in 1951, the COGCC has regulated and promoted oil and gas development in Colorado for more than 60 years. Some critics say that the agency is hobbled by its dual mission, arguing that a desire to promote drilling activity prevents the COGCC from adequately protecting health, safety and the environment. In 2012, COGCC Director Matt Lepore told an audience of industry types and regulators, “Those things have to be done in balance.”

But Martinez and his fellow plaintiffs argue that balance is not enough. If health, safety and environmental protection cannot be guaranteed, they say, development should not continue.

The COGCC balked at this request, so the teenagers took the commission to district court, aided by environmental lawyers. They lost. They then appealed, and in March the Colorado Court of Appeals overturned the lower court’s ruling 2-1 in favor of Martinez.

The teenagers cheered it as a victory.

Justices for the Court of Appeals looked at how lawmakers have amended the state’s Oil and Gas Conservation Act over the years and found that amendments in 1994 and 2007 “reflect the General Assembly’s general movement away from unfettered oil and gas production and incorporation of public health, safety, and welfare as a check on that development.”

But the Court of Appeals is not the state’s highest court, so it might not have the final say in Colorado. To get that final say, the COGCC would have to appeal to the State Supreme Court. The Supreme Court, however, does not have to hear an appeal. If it declines to take the case, the Court of Appeals ruling will stand.

In a May 1 meeting, the then-seven members of the COGCC — Hickenlooper recently appointed two new members to fill vacancies — decided they wanted to do just that. They asked the State Supreme Court to review the appeal. It took the board about an hour to decide, says commissioner Kent Jolley, a rancher who lives near New Castle.

The commission received legal advice during an executive session, which was closed to the public. Back in open session, commissioners briefly explained why they wanted to put the issue into the hands of the state’s highest court.

“It appears to me,” said commissioner and petroleum engineer James Hawkins during the meeting, “that since we have a split decision at the Appeals Court, that it would be in our best interest to get some clarity from the Supreme Court on how they interpret that part of our statute.”

Commissioner Ashley Ager, a geologist who works for environmental engineering firm LT. Environmental, Inc., agreed. “I think that we and the public perhaps need a little more guidance on what that decision means,” she said.

“It wasn’t that we didn’t like it,” says Jolley about the Court of Appeals ruling. “We just thought we should pursue it to the Supreme Court— the ultimate court— to decide.”

Bob Randall, who serves in Hickenlooper’s administration as the director of the Department of Natural Resources, was adamant at the time that the appeal was not an attack on health and safety. Rather, he said, it was an attempt “to get clarity and guidance from the Colorado Supreme Court in light of a strong dissent at the Court of Appeals, as well as the historic practice of this Commission.”

The commissioners then, in a voice vote, unanimously decided to move towards appealing the Appeals Court decision. Since that decision, however, members of the commission largely have kept quiet.

The commissioners serve at the pleasure of the governor — a governor who has said he did not want to appeal to the ruling. But they vote independently of the man who appointed them. Jolley and Randall say the governor did not approach the board about the case prior to their vote.

On May 17, the day before Republican Attorney General Cynthia Coffman announced her decision, Hickenlooper’s senior staff sent an email to her office asking that she not proceed with an appeal.

In a statement, the governor, a former oil and gas geologist who long has been a cheerleader for the industry, said he did not believe an appeal was necessary in part because the oil and gas commission “already elevates public health and environmental concerns when considering regulating oil and gas operations.”

But Coffman, in a statement about why she chose to appeal, said clarity from the high court “stands to have a profound effect on regulation and administrative decision making by government entities.”

If those statements seem at odds, good luck getting much clarity from the commissioners themselves.

Out of the six commissioners who voted to appeal, only three were willing to talk about their decision and about their own opinions about the broader sense of the panel’s mission.

The members of the COGCC are public figures with high-profile jobs in the public interest, but the COGCC does not provide contact information for them on its website. When asked why, two agency employees who answered the phone expressed surprise but could not explain why or where to find it. Employee Ken Robertson, a data analyst who works on the website, didn’t have an answer either.

Only one commissioner, Kent Jolley, responded directly to The Colorado Independent for this story— and only briefly.

In a phone call, he said he believes the COGCC strives for a balance between protecting public health and safety and fostering oil and gas development. “But it depends whose eyes you’re looking through, through each decision,” he said. “It depends somehow (on) how you’re looking at it, I guess.” He declined to explain further and said he might have more to say after the board’s next hearing in a couple weeks.

Commissioner Larry Wolk, a practicing physician who also leads the state’s public health agency, said he would only respond to written questions via the spokesman for that agency, not the COGCC.

Through his spokesman, Wolk told The Colorado Independent that he did not vote on May 1 during the voice vote. He says he invited the group that filed the original lawsuit to meet with the COGCC to discuss their concerns.

“They did not take me up on the offer,” Wolk says. “Absent that, I abstained.” (In an initial statement, Coffman characterized the COGCC vote as unanimous; she did not say anyone abstained. There are no mention of abstentions in a recording of the meeting.)

Asked his thoughts on the apparent disconnect between Hickenlooper and Coffman on the impact of the Court of Appeals ruling on the COGCC’s mission, Wolk said it is “unclear” that its work would be profoundly impacted by it. He describes his personal role on the COGCC as one to ensure public health and environmental concerns are represented and protected when it comes to the panel’s decision-making, rulemaking, and policy implementation.

Commissioner Bob Randall, who also serves as the interim director of the state’s natural resources agency, would also only respond to written questions sent through the COGCC’s spokesman, Todd Hartman. Randall said he voted for the appeal because there was a lone dissent and because of the commission’s “long-standing reading of the Act.”

Asked his views about the COGCC’s overall mission, he said during his decade serving on it, “everything” the commission does has been focused on ensuring the protection of public health, safety, and welfare.

“Protection of the public and the environment are paramount in the commission’s rules and actions,” he said.

Commissioner Ashley Ager did not return multiple voice messages or an email. Nether did commissioner Tom Holton who is the mayor of Fort Lupton. Acting chair John Benton did not respond to messages left for him. The Colorado Independent could not reach commissioner James Hawkins. Erin Overturf, one of two new commissioners who began their terms after the vote, declined to comment on her interpretation of the COGCC’s mission. New commissioner Howard Boigon did not respond to requests for comment.

The COGCC has come under intense public scrutiny in recent weeks following two highly publicized oil and gas disasters. On April 17, a home in Firestone, Colorado exploded after a flowline from an Anadarko well leaked flammable, odorless gas into the soil surrounding the home for nearly three months. Mark Martinez and Joey Irwin were killed, and Erin Martinez was critically injured.

On May 25, four miles north of the site of the Firestone incident, a worker was killed in an explosion while performing maintenance on an Anadarko storage tank. Three other workers were injured in the blast.

Throughout the 2017 legislative session, three proposed laws seeking to further regulate the industry, which were opposed by oil and gas groups, died.

RELATED: Roughneck politics

One bill would have extended the mandatory setback distance between oil and gas development and schools. Another would have given homeowners more notice that operators planned to “force pool” them into leasing their mineral rights. A third, proposed in the final days of the session, would have required the COGCC to map and publicize the locations of all active and abandoned flowlines, like the one that caused the Firestone explosion.

In the aftermath of the explosion, Hickenlooper’s administration ordered Colorado’s oil and gas operators to inspect and pressure-test all existing flowlines within 1,000 feet of homes. Operators have also been tasked with reporting the beginning and endpoints of all active flowlines, though a typical lack of straight lines makes such information of little use to homeowners wondering whether their homes are near such lines. In the case of Firestone, the responsible line was considered inactive.

Commissioner Wolk, who said he considers health and safety concerns when voting on matters that come before the COGCC, told The Colorado Independent, “These type of incidents would not have been prevented by actions of the commission.”

But, he added via email, “We may be able to address some of these issues in the future through rule making and legislation.”

Photo credit: Adam Stielstra

The state of Colorado has what’s believed to be an uninterrupted, 66-year-old history of not denying oil and gas companies permits to drill.

It’s a little known policy that has been disclosed twice now in court — and one that regulators at the Colorado Oil and Gas Conservation Commission, or COGCC, say is not untrue.

COGCC’s apparent practice of rubber-stamping oil and gas companies’ drilling permits came up most recently in February, during oral arguments in Martinez v. COGCC, a case brought by a group of teenagers demanding that the agency consider health, safety and the environment before allowing new drilling. Plaintiffs’ attorney Julia Olson said in court that the agency has never denied a permit. The agency didn’t dispute it.

The policy first came to light during legal proceedings in another case, in which the city of Longmont sought to defend its right to ban fracking. In a May 2014 deposition, legal counsel for a citizens group supporting the city questioned Stuart Ellsworth, an engineering manager who has worked for COGCC since 2008, about the agency’s process for considering oil and gas permits.

“Do you ever just flat out deny permits to drill?” asked Gina Tincher, then a student lawyer at Sturm College of Law’s environmental law clinic.

Ellsworth offered a few answers that Tincher found unsatisfying, so she kept asking: In his recollection, has a permit “ever been ultimately denied?”

“…I cannot recall one specifically denied,” he responded.

Asked this week about Ellsworth’s disclosure, COGCC spokesman Todd Hartman didn’t refute it. But he said that asking about “denial” is the wrong way to frame the issue.

“COGCC doesn’t typically deny a permit,” he said. “What occurs is a back and forth between the operator and the agency on permit applications to address issues/problems associated with the permit.”

That process continues “usually until a solution is found or an operator withdraws the application,” Hartman said. He did not explain the reasoning for this system, or why companies withdrawing permit applications is preferable to his agency denying them.

The COGCC, founded in 1951, has a mission to “foster the responsible development of Colorado’s oil and gas natural resources.” It has other incentives to promote drilling: Taxes and revenues from oil and gas extraction help fund the agency, as well as the Department of Natural Resources, which oversees it. More broadly, severance taxes paid by the industry are a major source of state revenues.

Over the past few decades, amendments to the state’s oil and gas act have expanded the agency’s mission to include the protection of health, safety and the environment.

COGCC’s ability to balancing these two goals — promoting drilling and protecting the public interest — has faced heightened scrutiny in recent weeks following a fatal home explosion in Firestone, Colorado, caused by unregulated oil and gas equipment owned and operated by energy giant Anadarko Petroleum. A Colorado Independent investigation into the blast alerted the public to the fact that the COGCC does not map underground oil and gas lines or keep an inventory of tens of thousands of storage facilities and other potentially explosive equipment.

The case of Martinez v. COGCC, brought by 16-year-old activist Xiuhtezcatl Martinez, has highlighted the disagreement between the state regulators and some activists about what role health and environmental protection should play in the agency’s decision-making.

In March, the Colorado Court of Appeals ruled in favor of the teens, ordering the COGCC for the first time in its 66-year history to prioritize concerns about health and safety over the industry’s interests. Colorado Attorney General Cynthia Coffman appealed that ruling following a unanimous vote by COGCC’s board to do so. Gov. John Hickenlooper publicly decried the appeal, but didn’t stop the board he appointed from filing it, leading some environmentalists and gas patch residents to doubt the sincerity of his pronouncements, especially post-Firestone, that Coloradans’ health and safety come first.

Each year, the COGCC receives thousands of applications from oil and gas companies seeking drilling permits. In the past 12 months, the agency has approved more than 3,500 applications. In that time, 131 drilling permits have been “withdrawn,” but none denied, COGCC data shows.

The database the agency makes available to the public only lists information about permits from the past 12 months. Hartman said this week that his colleagues couldn’t run a query to look beyond the past year any time soon, citing the workload associated with increased inspections following the April 17 explosion in Firestone. That blast, caused by an improperly abandoned Anadarko flowline that the state didn’t regulate, killed homeowner Mark Martinez and his brother-in-law, Joey Irwin. Martinez’s wife Erin was gravely injured.

COGCC’s database does not include reasons why permits are withdrawn, denied or “rejected,” a third type of application response the agency added in 2014. The distinction between the terms matters. Hartman said the option to “reject” permits is intended only for clerical issues, to “reduce time COGCC staff spent dealing with errors in applications.” Should a permit application “go beyond a set threshold for errors,” he said, “it is rejected and the operator must resubmit correctly.” In the past year, the COGCC has rejected 191 permits.

If the COGCC were to deny a permit, Hartman clarified, it would mean that the director — that’s COGCC Director Matt Lepore — would turn down an application based on merit, not merely clerical reasons.

Hartman said, “Efforts are made to work through problems. Ultimately, solutions are usually found. If not, an operator withdraws.”

Environmental lawyer Matt Sura said that incomplete or error-ridden applications — the kind typically “rejected” by the agency — are far too common. And that’s a problem, he said, because the public often doesn’t have complete information when weighing in on permit applications.

“How are [the commissioners] even making decisions based on this? This is like the back of a bar napkin,” he said.

Many Coloradans living near oil and gas developments have said the COGCC is not doing its due diligence before approving drilling permits.

In the Greeley neighborhood of Triple Creek, residents filed a lawsuit against the agency for failing to require Extraction Oil and Gas Inc. to install a pipeline in the area, which they said is required under the permitting process as a “best available technology.” Extraction recently confirmed that it would indeed install the pipeline, ending its reliance on large tanks and accompanying truck traffic in the neighborhood. But residents say they’re continuing with the lawsuit because Extraction volunteered to make the change, and the COGCC did not use its authority to demand it.

“It is way too obvious to those of us who have dealt with them across the table that the COGCC does not weigh the needs of the oil and gas industry equally to the public’s right to health, welfare and safety, as well as the environment,” said Triple Creek resident Lowell Lewis. “In my experience, they do take the side of the oil and gas industry very blatantly.”

“Typically they are not in the business of denying permits,” environmental lawyer Kyle Tisdel said of the agency.

“That is consistent with my understanding of how the COGCC operates: They might condition permit approvals, but they will not deny them, and especially they will not deny them based on concerns over health and the environment.”

In the Western Slope community of Battlement Mesa, the Colorado Department of Public Health and Environment (CDPHE) recommended that the COGCC deny oil and gas operator Ursa Resources’ permit to build an injection well in which to dump contaminated fracking water. Health officials cited concerns that the well would have been too close to a water intake that served the community and created an “unnecessary long-term risk for a spill.” The company retracted its request to drill the injection well in question, but the COGCC allowed it to keep the well listed on its application. That means the well could still be permitted and drilled in the future, without Ursa Resources having to redo its entire application process from scratch.

Xiuhtezcatl Martinez, the teenage legal plaintiff, sees the COGCC’s perpetual thumbs-up when it comes to permitting new drilling as a betrayal of the public interest.

“As a government entity, they are the frontline defense of our communities against fracking,” he said. “When the industry has turned against us, when our elected officials have turned against us, we look to the COGCC to protect us.”

But, he added, “The whole relationship between the COGCC and the fossil fuel industry is kind of founded on a mutual agreement of working for the greater good of that industry, rather for the people. We’ve never seen them as being on our side.”

Photo credit: Ted Wood/The Story Group

‘Who plans this?’

The tenant is living in a three-bedroom ranch-style house off a cul-de-sac in northeast Denver. Or at least that’s where she was when I last saw her.

She was being evicted for not paying her rent on time. She could still be in town and living with family as she’d done before. Maybe renting another house or apartment, a smaller place because this is a city where it’s harder and harder to find a rent you can afford on 15 bucks an hour. Last year, she considered a converted garage off Colfax Avenue. Her son looked at it and looked at her and said, “Mom, you know it has not come to this.” It upset her because, you know, maybe it had.

The tenant had looked at dozens of places by then and considered herself lucky when she found the ranch on the cul-de-sac. Yes, at 1,100 sq. ft., it was tight for her and her two adult sons, and even with their contributions, the rent was a stretch at nearly $1,600 a month. But it had enough bedrooms and a giant backyard, and she could walk to work.

That was in late December. By the end of February, her landlord had started the eviction process. A lot can go wrong in two months.

For purposes of this story, the tenant will remain “the tenant.” No name. No details that might identify her. She says she’d never been evicted, and changed her mind about publishing her name after we’d had a few conversations, one at the home she was about to lose. Nothing could talk her out of her shame. I might argue, for reasons that will become obvious, that her embarrassment is misplaced, that there is a much larger issue here than one tenant and one late payment. But a larger issue is no less a personal one, and it’s not easy to bare oneself to public scrutiny and the unsolicited judgement that inevitably comes with it.

The tenant is far from alone in her predicament. In 2016, 8,419 eviction cases were filed in Denver County Court—up from about 7,900 in 2015. Throw in Arapahoe, El Paso, Adams and Jefferson counties, which tally cases on a fiscal rather than calendar year, and you’re looking at another 27,000 or so cases, with Arapahoe leading the pack.

Not all those cases will end in eviction. Some tenants pay what’s owed. Some landlords relent.

The city’s Sheriff’s Department posts about 300 court-ordered eviction notices a month, give or take — an average of 10 a day. But even then the landlord and tenant might strike a last-minute deal. Most times, when deputies show up to oversee an actual eviction, they find the renters already have moved on.

The tenant takes solace in knowing she’s not alone for the minute it takes her to imagine all the people entangled in 8,419 cases in Denver. How many families each filing represents, how much anxiety and begging and borrowing to catch up with the landlord, who might evict you anyway, sheriff deputy at the door, coffee table and kids’ clothes and mattresses at the curb.

“Why is the city doing this to us?” the tenant asks, and her words are more of a wail than a question. Shame engulfs her again.

“A story like this exposes all my weaknesses,” she says. “It makes me ashamed. This is not what I wanted for my life. Who plans this for your life? … I feel like I can’t breathe.”

In her need to feel safe, she says she called her mother. The tenant, in her 40s now, said, “Mom, can I go get in your bed?’” She says her mother tells her that things will get better. “That’s the only thing that keeps me going,” the tenant says, “the thought that it will get better.”

Arm-in-arm

Denver city officials recently launched a strategy to try to make things better by stopping an eviction in the best-case scenario, or blunting its impact in the worst.

The strategy hinges upon the arm-in-arm work of city employees who touch some point along the path of eviction, including code inspectors, human services outreach workers, sheriff’s deputies. It calls for focusing more attention and resources on the neighborhoods where more evictions are taking place or where gentrification threatens to push out lower-income renters. Preliminary city data largely points to Westwood, Barnum, Overland and other parts of the working-class Hispanic and white neighborhoods in west and southwest Denver.

The goal is to guide people facing eviction toward shelter, food, jobs and help with other needs, including financial assistance for those who qualify and need back rent, owed utility money, deposits and such.

It’s some help – if not for this tenant, then for those who will follow because in this booming city where people are desperate for a rent that doesn’t gobble up the grocery budget, there will be another tenant. There will be more evictions. No one knows this better than a landlord.

City officials admit they embark on this coordinated effort belatedly, after seeing that other cities had incorporated eviction strategies into their affordable housing plans. They do so with the understanding that Denver cannot build its way out of its housing crisis, and that it’s cheaper to try to help someone stay in an affordable rental than help build a new one. They plan knowing that in the churn of comings and goings, eviction undermines neighborhoods, schools, families.

“Eviction has a cascading impact on people’s lives,” says city councilwoman Robin Kniech. She was at the forefront of Denver’s push for an affordable housing fund, and says that her participation in a national working group on housing made her realize that Denver had not put enough focus on eviction.

The 8,000-plus cases in Denver County Court in 2016 are “tragic numbers,” she says. “If you assume the average household in Denver is 2.2 people, then you are probably talking about 16,000 people impacted. Some of these folks are ending up homeless, some are being displaced from their communities. Some are losing their jobs because when the sheriff shows up and you have to get your stuff out and you have to be at work, you are not showing up for work that day.”

Eviction cases are down from the years of the Great Recession when they were averaging about 10,000 a year, according to Denver County Court data. The numbers have remained fairly constant over the last few years even with the population boom, though according to an analysis by Colorado Affordable Legal Services, the last quarter of 2016 saw a 10 percent jump in Denver County Court cases filed over the last quarter of 2015.

But the numbers are tough to pin down and that’s part of the problem, says Andrea Chiriboga-Flor, the lead housing organizer with 9to5 Colorado. The nonprofit has been focusing on tenants’ rights issues and eviction since 2015.

The state has no central, organized data collection system, nothing on the demographics of those evicted, on where it is happening or, critically, why. Even if the numbers remain fairly constant, what propels the numbers does not.

“We haven’t put enough resources into collecting the data. If we don’t know what the problem is, how are we going to combat it?” Chiriboga-Flor says. “It happens so quietly and the reaction to people being evicted tends to be, ‘Well, this is your fault, you shouldn’t have moved into such an expensive place or you should have kept your job or you should have found less expensive childcare.’ People treat it as though it’s a result of poverty, but it is pushing people further into poverty.”

With eviction comes a hit to credit-worthiness, an increased risk of losing a job, potential lost access to public housing and a higher risk of homelessness.

Attorney April Jones, who runs a helpline for tenants and whose small firm Colorado Affordable Legal Services focuses on tenants’ rights, says she has represented single mothers, people who are disabled, senior citizens, veterans, and people of all races in eviction court.

“It runs the gamut,” she says. “You name it. They’re just individuals who are not making a lot of money or who can’t afford to pay $2,300 for a two-bedroom apartment … This issue of housing, of adequate housing, it’s a human right. And it needs to be protected.”

Breaking point

The tenant’s troubles begin with the late payment of her February rent. Or with hospitalization of her son. Or with the loss of her job because she says she had to spend so much time at the hospital. She describes a conspiracy of events, a chain reaction.

The breaking point, at least from the tenant’s perspective, comes in a dispute over a past-due water bill. From the landlord’s perspective, the bill had little to do with it; the rent was already late. The person who should have paid that bill, both agree, was the previous tenant, a mom with six daughters. But the landlord evicted her, too, because, as the landlord tells me, “she moved in there and then moves in her mother, her mother’s husband and his four kids, her cousins and brothers and it ends up with 14 people in the house and they trashed it out.” She says that eviction cost her $8,000.

The landlord says the house on the cul-de-sac was the first home she owned and that she treasures it. She says she deliberately made it affordable to low-income families as a way of “helping those less fortunate to have their own place.” She is fully aware that rents throughout the city have become too high for most average working families and says she knows people are being evicted because they can’t keep paying 50, 60, 70 percent of their incomes on housing. She says she’d rather price her property a little lower and keep a tenant for 10 years than price it higher and have a tenant leave in one.

But she has been a landlord for more than 27 years now and has five rental properties. She has become weary, she says, “because of the recent ongoing problems with tenants damaging property, vandalism, not paying rent, others living in the property not being on the lease, the drugs and other issues, I have begun to understand and follow the rule of four Ts —’Tired of Tenants, Toilets and Turnover.’”

The details of the breaking point between the landlord and the tenant take us into contested territory, but it is fair to say that both believe themselves wronged and their argument over the water bill sours any chance of reconciliation. In the end, the home is the landlord’s property and the tenant did not pay the rent on time. This comes down to personal responsibility, the landlord says, affordable housing crisis or not.

The tenant, faced with bills she can’t pay and knowing how hard it will be to find another decent affordable rental with an eviction on her record, files for bankruptcy. She has filed bankruptcy in the past, each time seeking to get out from beneath her debt. The move delays the eviction, which gives her more time to search for another place to live.

In the tenant’s eyes, she is fighting for survival, plain and simple, she’s trying to keep from ending up homeless. The landlord sees this as the calculated move of someone who knows how to game the system.

“[The tenant] lived in my rent home for SIX MONTHS paying one month’s rent, because she filed BANKRUPTCY,” the landlord tells me in her email, pointing to the tenant’s multiple bankruptcies. The unpaid rent, plus attorney’s fees add up to $13,000 the landlord says the tenant owes her. “And I’m not going to get a dime of that back because where is it going to come from?”

‘Did you hear what I said?’

In mid-May, Mayor Michael Hancock opened the city’s annual housing summit by referring to the 2016 “Out of Reach” analysis by the National Low Income Housing Coalition. Nationally, a worker in a full-time job must earn $20.30 an hour to afford a modest two-bedroom apartment, Hancock told the crowd. In Colorado, that wage is $21.12 per hour. In Denver, it’s $23.60 per hour. (The 2017 numbers were released last week. It’s more expensive now. The hourly wage now needed for a two-bedroom in the neighborhood in which the tenant lived is $25.19. She was earning $15 an hour.)

The rule of thumb is that rent or mortgage should take up no more than 30 percent of one’s before-tax income.

“So what does this mean for a city that is growing and experiencing some of the best economic success in the country?” Hancock asked the crowd at the summit. It means, he said, that three of four residents experiencing homelessness in Denver have jobs.

“Did you hear what I said?” Hancock continued. “Three out of four individuals experiencing homelessness are working … It means our teachers and our nurses are paying far more than 30 percent of their incomes on rent. It means that young professionals and millennials and families are stuck in rentals that they can’t afford and certainly they can’t even begin to imagine home ownership. We all have someone we know, a neighbor, a friend or family member who can’t find a house to buy, had to move out of the neighborhood or worse, lost their homes.”

The mayor makes the case, as he has in the past, for Denver as an economically integrated city because such a city is also a socially, culturally and racially integrated city. It is a city in which history has not been steamrolled by gentrification, in which communities bound by a common social past, by language or tradition, remain intact and a key part of the larger identity of a place. It is a city where laborers and retail workers, teachers and artists, software engineers and executives have an equal claim on the shape of the future. “Inclusivity furthers vibrancy in our community and allows our neighborhoods and businesses to thrive,” Hancock tells me in an email.

Evictions happen in good economic times and in bad. They happen for reasons entirely within a tenant’s control and for reasons over which they have no power. But in the context of an affordable housing crisis they speak to Denver’s struggle to remain an inclusive place. The tenant’s “why is the city doing this to us?” is the lament of the dispossessed, the person who has come to believe her city sees her as disposable.

Erik Soliván, the new head of the Mayor’s Office of Housing & Opportunities for People Everywhere (HOPE), tells me that eviction today is a byproduct of a landscape in which first-time homebuyers aren’t going to have much luck finding anything in Denver under $350,000. In which developers responded last year by building 5,600 new rentals to capture the spillover of those shut out of homeownership. In which 8 in 10 of those new rentals were targeted at the luxury end of the market, with an average rent of $1,210 for a one-bedroom. That’s an expense “the majority of families can’t afford,” he says.

The gap between the supply for affordable housing and the demand can be quantified: We are at least 21,000 units short, according to a Denver Housing Authority study.

“Affordable” is, of course, a subjective term. But in this context, it means housing for those who earn 60 percent or less of the city’s Area Median Income or AMI. In 2017, the AMI for a four-person household in Denver is $83,900. You have a household of that size with an annual income of $50,000 or less, and you are competing with thousands of others for a place to live.

“We put it this way: We have highest inventory for the highest-income families and the lowest inventory for the lowest-income families,” Soliván says.

The less money you earn, the more likely you are to be not just a renter, but also a renter paying more of your gross household income on that rent. Seven in ten of the city’s most economically challenged renters — those earning 30 percent of AMI or less — are paying more than half of their incomes on rent, according to data analyzed by the city’s Office of Economic Development. A car breaks down, a child falls ill, the boss cuts work hours, and there is no wiggle room.

Recall that last September more than 22,000 people applied for one of what is expected to be 300 federally subsidized housing vouchers, commonly called Sec. 8 vouchers. According to DHA, 200 vouchers have been issued so far and one-third have been returned because tenants could not find an apartment within established rent limits or couldn’t find a landlord willing to accept a voucher.

The tenant used to have a Sec. 8 voucher. She’d had one since 2009. All went smoothly until, she says, her landlord decided to sell the house she’d been renting. She found another place, but in December 2015 that landlord told her he was doubling her rent. DHA gave her the full 120-day time limit to find another rental. It’s a use-it or lose-it system.

“I looked at hundreds of places,” the tenant says. “I honestly was looking in those four months. In Denver, Montbello, Green Valley Ranch, Aurora. I was told that if I went to Westminster and Northglenn, I might find something. I heard that it’s cheaper, but I don’t know if that’s true. I didn’t look. I’ve never really been over there. I don’t know anything about that part of town. And it’s far from the jobs I might have.”

She couldn’t find anything and turned her voucher back in last year in April.

She lived with friends, family, technically homeless. An acquaintance tipped her off that the three-bedroom on a cul-de-sac would soon be going up for rent. It was a Sec. 8 property because the landlord says it’s how she has kept it affordable for lower-income tenants. Not enough landlords accept Sec. 8 , she says, either because landlords want the higher rents the open market commands or because they have had bad experiences with Sec. 8 tenants.

In any case, two people the landlord knew vouched for the tenant, and the landlord decided to give her a chance. She says she even lowered the rent to $1,588 from $1,674.

The tenant, grateful, tells me: “I thought I would never have to move again.”

‘Traumatic as all hell’

Marry the affordable housing crisis with Colorado’s landlord-tenant laws and the problem is compounded. In Colorado, landlords can evict tenants without cause. They do not have to provide tenants with written leases or receipts of rent. They can charge what they want for application fees and late fees. They can refuse tenants with vouchers or who rely on child support or Social Security or disability. State law prohibits renters from withholding rent until landlords make needed repairs. And Colorado, like many states, has no requirement that tenants receive legal counsel or representation in eviction cases. Also as in many states, the only lawyer most Coloradans facing eviction meet upon going to court is the landlords’.

The nonprofits Enterprise Community Partners and Make Room Colorado have proposed several policy solutions in Colorado based on what other states have done. Much of what is needed is not within Denver’s power to change. Councilwoman Kniech says the city is contemplating two of the groups’ recommendations: providing pro-bono legal counsel to tenants in eviction court and creating a landlord registry that would make it easier to track problem landlords and would ensure that rentals meet health and safety standards. The city of Boulder has such a registry and it requires that every rental property be licensed and inspected.

The state legislature this year did manage to pass a bill that extends notification for rent increases or lease termination on month-to-month leases from seven to 21 days, though that doesn’t affect eviction actions. Even then, most states require 30-days’ notice, according to the Colorado Center on Law & Policy, which worked with Democrat and Republican lawmakers on the legislation.

Landlords are not looking for excuses to raise the rent in a hot housing market and kick people out, says Nancy Burke, vice-president of Government and Community Affairs for the Colorado Apartment Association and the Apartment Association of Metro Denver.

“Sometimes people make us look like the big bad landlords,” she says, noting that filing evictions costs landlords money as does turning over a property for a new tenant. “If we have a choice, we would rather have a tenant stay.”

The association has put together a renter’s guide, which is in English and Spanish and downloadable from its site. It also publishes a guide for nonprofits and charities offering assistance, and provides free landlord education. Burke says the association wants better coordination with the city and tenants’ groups so that renters and landlords know their rights and responsibilities. During the foreclosure crisis, she says, investors snapped up bank-owned houses, turned them into rentals and became “accidental landlords.” The lessons of that time still hold true, she says.

“If you have someone who is a landlord who doesn’t know [the law] and a tenant who doesn’t know, that spells disaster, and 98 percent of the time, it’s a lack of communication.”

Once the eviction ball starts rolling in Colorado, it can roll fast. A typical eviction process can take a month. If a tenant wants to answer the landlord’s complaint, that may add another week and cost the renter $96, though the court can waive the fee. If the case goes to trial, then it takes a little more time, particularly with continuances, but those are rare and usually only stretch the case out for another five days.

But the reality is most people being evicted don’t answer the complaint and summons to appear in court, says Judge Clarisse Gonzales, who presided over eviction cases for two years in Denver County Court and has been helping the city shape its new strategy to reduce evictions. She says tenants may have already moved on and think they’ve resolved the issue by doing so. Some are intimidated by legal action and coming to court. Some may not understand the summons and complaint, which is officially called Forcible Entry and Detainer. In a no-show, the landlord wins back possession of the property by default and tenants wind up with a recorded eviction in court and on their credit reports.

“People don’t show up because they don’t know the consequences,” Denver renter Jenee Donalson tells me. Donalson was evicted in 2012 and did not answer the court summons. “When you post paperwork to someone’s door about them losing their home, it’s incredibly unclear as to where their power is. It’s so unclear as to what they can do to stop it from happening. You do that to people, you are overwhelming them … When I saw the paper stuck to my door, all I saw was ‘Eviction.’ I couldn’t read the small print. It was traumatic as all hell.”

Of the tenants who do show up in court, says Judge Gonzales, few choose to file an answer to the complaint. Fewer still ask for a trial. Maybe two percent have their own lawyers, Gonzales says.

“Once that judgement for possession enters, it’s devastating,” she says. It may knock the poor out of the running for public housing, and in this market, she says, why would landlords choose someone who has an eviction over someone who doesn’t?

On the docket

It is a Wednesday in late April and a busy day for evictions because Tschetter, Hamrick and Sulzer, which touts itself as “Colorado’s #1 landlord firm and #1 in Colorado evictions,” is in Denver County Court. I tried talking to Andrew Hamrick of the group. He was cordial, but referred me to someone else at the firm who passed me on to Burke at the Apartment Association.

On the docket are 167 eviction cases against tenants. More specifically, 167 tenants were ordered to appear in court; 103 fail to appear. The landlords’ attorneys wait in Room 164 for the tenants who do answer the summonses. Room 164 has a couple desks for lawyers and defendants, and a row of pews facing a screen upon which loops a video featuring Judge Gonzales and two of her colleagues describing the eviction court process.

Lawyer and tenant talk, hoping to reach an agreement on the terms of departure. It’s the tenant’s best shot at negotiating some extra time to move or at persuading the landlord to rescind the eviction in exchange for settling up. They are, by and large, stipulation agreements in which the tenant agrees to his or her own eviction and wagers upon the landlords’ good graces and desire to get paid to keep from being kicked out. No one I see that day or the other two mornings I am there is represented by a lawyer. A woman I speak with after the fact thinks the lawyer she spoke to was a “district attorney.”

Agreements made, the tenants head to one of the three courtrooms where eviction cases are heard. One tenant after another appears in front of Judge Doris Burd or Judge Brian Campbell or Judge John Marcucci. A few years back, the judges started requiring that tenants appear before them to make sure they understand the stipulation agreements they’d reached. They do what they can to put tenants at ease. Marcucci banters from the bench, practiced in his message, which he repeats to almost every renter before him.

“I try to put it in laypeople’s terms and this seems to make sense,” he says to a woman standing at the lectern at the front of the courtroom. “You could show up with a bucket of money and they could say, ‘We don’t want your money. You’re out.’ And you have to move.”

The woman says she understands.

Everyone before Judge Marcucci says they understand. Everyone before him also says they hope to stay in their apartments or home, and that once they settle up, the landlord will let them stay. Maybe, Marcucci says. But sometimes the landlord says one thing and you hear another.

“As long as you understand,” the judge says. He tells her he doesn’t want her coming back and saying, well, Judge, you said I could stay if I took care of things.

The woman says she understands. She says she sees the judge as the “innocent party” in this matter. No, Marcucci says.

“I told this to many people this morning,” he tells her. “My goal as a citizen of Denver and hopefully, as a regular, nice Joe, is I hope our citizens can stay in their places because it’s your home and our community is better if people are safe in their homes and comfortable. But as a judge, I can’t prefer the fact I want you to stay in your nice home versus the landlord’s right to get paid. Because there would be chaos if people didn’t have to pay their rent. Right?”

A woman named Machela Polk appears with a friend who is helping her because Machela is blind. She also has leukemia, but I only find that out later, from her friend. Machela tells me later that when she signed her year-long lease in a brand new apartment building for low-income residents in December, she thought her $796-a-month rent was subsidized and her share would be lower. It’s not. Every month since, she says, she has narrowly skirted eviction.

She can’t afford where she lives, but doesn’t know where else to go. She’s 26 years old and says she has spent too much time in shelters. She doesn’t want to go back.

“It’s day by day,” she tells me. “And even though I fight to pay the rent for this apartment, it’s mine.”

Judge Marcucci asks Machela if she receives disability payments of any kind. Yes, she says. He does not ask her what percentage of her income goes to rent. Had he, she would have told him 77 percent. She might have told him that she’s living on borrowed money and food banks. She might have said she’s started pawning her belongings.

It goes like this for an hour or so. Marcucci giving his bucket-of-money example. Everyone saying yes, sir, I understand. Sometimes he asks people how long they’ve lived in their places and if they have somewhere to go. Sometimes he asks what went wrong. A man says his car broke down and he had to use the rent money to get it fixed. A woman says her brother died and she had to pay for the funeral. There’s an efficiency to the proceedings that belies whatever chaos may have led these renters to this point and whatever chaos may follow.

“Did you read this agreement you signed?”

“Yes.”

“Do you have any questions about it?”

“No.”

”Do you know where you are and what you are doing?”

“Yes.”

“You signed it voluntarily?”

“Yes.”

“And you understand that you are granting the landlord judgement for possession?”

“Yes.”

“And even if you intend to stay there, they could say they don’t want your money, you need to move.”

“Yes.”

“Are you hoping to stay?”

“Yes.”

“Good luck.”

Connecting the dots

No one agency, no one department, no one nonprofit or developer is going to make a dent in a challenge of this scale, Soliván says.

“To help that family that is going to get evicted, who is going to have to find another unit, who is going to end up paying far more than that 30 percent of their income on housing, we [as a city] have to connect the dots,” he says. “We are going to have to work on this together. We have to talk to the courts about how we address it at the end of the eviction process and we have to move upstream to look at how we prevent that eviction from happening.”

And so Department of Environmental Health code inspectors who respond to complaints from tenants about landlords not taking care of bed bugs, mold or other health and safety issues will steer those tenants to Department of Human Services outreach workers should the problem be severe enough to result in a family’s displacement. An outreach team will help them find other shelter, food or a job, if needed. Denver sheriff deputies now are leaving a flier along with the posted notice of eviction that says “EVICTION ASSISTANCE” and gives the phone number of a human service’s outreach worker.

The city is setting aside $1.5 million from its affordable housing fund for financial help to those who qualify for eviction, foreclosure and utility assistance. It is also seeking to making permanent a month-long pilot program in which two Human Services outreach workers set up shop in the court’s Room 164.

The pilot, which ended in early April, came out of a working group made up of councilwoman Kniech, her council colleague, Paul Kashman, the Department of Human Services, the Denver Sheriff’s Department and Denver County Courts.

During that 30 days, 90 people talked to the human services team. About 25 submitted applications for financial assistance. You have to be working. Your rent can’t be more than 60 percent of your income, which is one way the city determines whether the rent you are paying is sustainable. Nine people received financial assistance totaling just under $6,000.

Councilwoman Kniech says that considering it costs the city alone $25,000 to help create one new affordable housing unit – and that’s not counting federal and state investments— that’s money well spent.

I met the tenant being evicted from the house on the cul-de-sac during the pilot program. She came through the door, a short African-American woman with a bashful smile, carrying a yellow folder jammed with receipts and paperwork. She was applying for $1,250, first month’s rent on a new, smaller place she hoped to move into next. Given her earnings of $15 a hour, rent would have been a little more than half her income. She told the outreach workers that the program may keep her from homelessness. When I last talked to her in late April, she told me things fell through and she didn’t get the city’s assistance, after all.

I talked to her a couple times after that and visited her once before she changed her mind about having her story laid out for public consumption. Then she stopped responding. I went by the house on the cul-de-sac just in case she was still there. She wasn’t. The landlord says she left on May 7.

The tenant told me in one of our last conversations that she might leave for another city, in another state, one where more of her family lives, one she could afford and where there is still a place for her.

The three-bedroom house on the cul-de-sac is available again. The landlord says there’ll be an open house this week.

Lead photo courtesy of Denver Sheriff’s Department. Other photos by Tina Griego

There’s nothing like a drought to turn everyone’s attention to water conservation.

Colorado’s last major drought was from 2001 to 2002. It wasn’t the length of the drought that was striking, but the extreme lack of rain and snowpack – so bad that one writer referred to it as a 300-year event.

That drought triggered discussions on how Coloradans should conserve water, as well as new laws that eventually led to the formation of statewide roundtables – groups representing water providers, cities, towns and counties, as well as environmental, recreational and agricultural users – that focused on Colorado’s water future.

“There was tangible willingness of ordinary people to listen to what we were trying to say about water use,” says Russ George, a former Speaker of the House from Rifle who currently serves as chair of the Colorado Water Conservation Board, the state agency charged with coming up with Colorado’s first statewide water plan.

But that was then – a two-year surge in Coloradans’ water conservation consciousness that waned when snow and rain levels started returning to normal. Though Colorado has proven in the past that it can save water, it has yet to embrace, long-term, many of the tools that have framed a conservation mindset in neighboring states to the southwest. The ethos is born of the kind of thirst that Colorado hasn’t experienced for 15 years. But that thirst is looming over the next three decades, driven both by climate change and population growth. The state’s population is expected to grow from about 5.5 million in 2016 to as many as 10 million people by 2050.

Colorado’s first statewide water plan, released in 2015, was spurred by that looming shortage. Chief among its talking points is conservation, the idea that at least part of the solution to the state’s future water woes lies in encouraging everyone to use less water. When Gov. John Hickenlooper ordered the creation of the water plan in 2013, he famously said that “every conversation about water has to start with conservation.”

Just a few months later, however, he vetoed a bill championed by conservationists to leave more water in the Colorado River. The bill, aimed at requiring agriculture to move to more water-efficient irrigation, drew opposition from the farming and ranching community and from water providers. Conservationists called Hickenlooper’s veto “a failure to lead.” Hickenlooper said that deciding to veto the bill was a “close call,” but added that the lack of consensus that divided the water community would have made implementing the policy too difficult.

The water plan sets a lofty goal for conservation. It calls for cities, towns and businesses statewide to cut annual usage by some 400,000 acre-feet of water, enough to supply water to about eight million people per year. But, the plan lacks a clear, measurable path forward to achieve it.

John Stulp, the state’s water czar who was instrumental in helping put the plan together, said the conservation target is a “stretch” goal, meaning it’s aspirational rather than a hard and fast number. He also pointed out that the goal didn’t come from the water plan itself, but rather from water providers. It’s up to those providers, he said, to figure out how to conserve that water. Colorado’s local control laws often block the state from telling local governments what to do. That, Stulp said, applies to water, too.

Becky Mitchell, who leads water supply planning at the CWCB, said the state is taking more of a carrot approach in working with local governments on conservation. Since 2010, a state law has required that water providers develop water efficiency plans. Some 95 percent of water utilities and companies are doing so annually (the other 5 percent, very small water providers, aren’t required to develop those plans). The data collected from these plans will help the state in its water supply planning for the future, according to the CWCB website.

Two years into the process of implementing the water plan, Stulp said it’s still too early to come up with definitive conservation numbers that water providers would have to meet. He’s hoping that the data from the water efficiency plans will help the CWCB come up with those numbers.

Stulp pointed to Greeley as an example of where the planning is headed. The town has been analyzing water use for every property, based on square footage. Every property, be it a home or business, is then assigned a water budget. Enforcement of water use is then done through tiered water rates. “Water hogs will pay considerably more for going outside the boundaries,” Stulp said.

Reaching the statewide conservation goal won’t be easy. “The water providers will have to push hard,” Mitchell said.

But even as the CWCB says that water providers have to take the lead on conservation, some in the water community say they want more leadership on the issue from the governor’s administration as well as from the General Assembly.

“We need some leadership from the state, and strengthening conservation and water efficiency requirements would be one step,” said Jim Lochhead, executive director of Denver Water, the biggest municipal water supplier in the state.

Democratic Sen. Matt Jones of Louisville says the time has come to update the state’s water conservation laws, and he’s most interested in adding statutes that apply to developers and land-use planning.

Colorado’s looming water shortage is projected to be about one million acre-feet of water per year. A family of four, on average, uses about a half-acre foot of water per year, or about 163,000 gallons of water per year. So a million acre-foot shortage would impact virtually every Coloradan and in every way of life: farmers, city dwellers, businesses, oil and gas drillers, environmentalists, birders, anglers, rafters, kayakers and everyone else who values the health and vibrancy of Colorado’s rivers.

Some 86 percent of water in the state is used by agriculture, the state’s number two economic driver. Yet the plan doesn’t include a conservation goal (agriculture prefers to call it “efficiency”) for the farmers and ranchers. The plan notes that setting strict conservation requirements for the agricultural sector would be tricky because it could have consequences on water rights under Colorado water laws. It also notes that water use by agriculture is expected to drop into the low 80th percentile due to agricultural water rights being bought by municipal and industrial users.

James Eklund, who headed the CWCB until this spring, said that setting a goal for agriculture wasn’t necessary because agriculture is already pretty efficient in its water usage; most water either goes to the crop or it goes back into the water source (a stream or ditch) to be used by the next farm in line for that water.

Those tasked with meeting the municipal and industrial conservation goals so far face a losing battle to stop growing water-hungry Kentucky blue-grass lawns in the semi-arid West.

Coloradans’ prickliness about grass was the subject of a recent news report about a hateful postcard sent to a resident of Harvey Park in southwest Denver whose lawn hadn’t been cared for and which drew a nasty response from an anonymous neighbor. While most of the comments expressed sympathy for the family with the unwatered lawn, one comment also showed that fervor to keep lawns green in semi-arid Denver wasn’t isolated to that one postcard. Brad Klafehn of Harvey Park noted that he had let his lawn die in preparation for xeriscaping, which earned him similarly nasty postcards telling him to either water his grass “or get out of the neighborhood.” Even after xeriscaping, neighbors filed complaints with the city of Denver for the next five years over his “unkempt vegetation. The inspector knew what we were doing and never cited us,” Klafehn said.

Denver’s conservation efforts

Denver Water serves 1.4 million customers in Denver and eight other Front Range communities – about one out of every four Coloradans. It reduced its water usage by 22 percent between 2002 and 2016 through conservation efforts. Centered around its Use Only What You Need campaign, average consumption is about 165 gallons per person per day, down from 211 gallons prior to the 2002 drought. The utility is cited as a model for getting water customers to conserve.

Denver Water is shifting its focus from conservation to water efficiency. Lochhead said that many of its customers are doing a pretty good job limiting water use, whether by using more efficient water fixtures or reducing outdoor water use, which is Denver Water’s biggest consumption during the summer. The next step, he said, is a water efficiency plan, currently under a public comment period, that will “target those customers who aren’t being as efficient,” and which will direct Denver Water’s conservation efforts into the next five years.

Lochhead said the idea is not to rip up lawns – a measure pushed in the California’s recent drought – but to show people that “landscaping can be beautiful and highly water-efficient at the same time.”

But there are obstacles that need to be overcome in order to move forward, including a disconnect between land-use planning and water utilities.

As Lochhead sees it, state law is “soft” on rigor for water efficiency.

“County and municipal governments approve development plans that may not be the most water efficient, and then turn to the utility and say, ‘provide water service to this development,’” he said. “We can’t dictate development. We have to try to work with our customers.”

The CWCB’s Mitchell said her agency is working to bridge that disconnect between land use and water utilities. The agency recently held a series of webinars, attended by more than 300 people working on land-use planning, as well as some homebuilders, to encourage that municipalities’ zoning codes and landscape requirements take water conservation into account. As a local control state, Colorado can’t mandate zoning codes for local communities, but Mitchell said state government can serve as an advisor to city and county governments. “Those are the folks who make that successful,” she said.

Lochhead’s wish list includes more use of “graywater” – the mostly-clean water that comes from baths, sinks, washing machines and dishwashers – and “green infrastructure,” which which uses stormwater runoff to irrigate natural vegetation. According to the Environmental Protection Agency, stormwater runoff in urban areas “carries trash, bacteria, heavy metals, and other pollutants from the urban landscape,” and heavy rains can “cause erosion and flooding in urban streams, damaging habitat, property, and infrastructure.”

Lochhead said that the state Department of Public Health and Environmental could move forward on regulations that would approve new technologies on reuse and recycling of rainwater, graywater, and blackwater, meaning water that comes in contact with human waste. Those technologies are already in use just about everywhere except Colorado. In Arizona, New Mexico, California and Texas, for example, graywater can be used without a permit, depending on how much is needed per day.

In the meantime, Denver Water is redeveloping its 6th Avenue and I-25 operations complex to make it the most sustainable water site in the state. The facility, which will have its own wastewater treatment system, will be a model for demonstrating highly efficient irrigation. Eventually, the water district hopes to irrigate the entire administrative complex with rainwater

Where Colorado lags, Las Vegas and Phoenix lead

Efforts to increase conservation through legislation has had only limited success.

In 2014, Republican Sen. Ellen Roberts of Durango and Democratic Sen. Mary Hodge of Brighton pushed for a bill that would require local governments to approve plans for new construction only if the municipality also adopts a resolution limiting the amount of irrigated grass on residential lawns to 15 percent of total acreage. The Colorado Association of Homebuilders strongly objected, and lawmakers backed off. The bill was watered down into a recommendation that the legislature’s water resources committee come up with a list of best practices that could be turned into “reasonable” legislation that could lead to “measurable conservation of municipal water used for outdoor purposes.” Even with that watered-down language, the bill drew opposition from a few water utilities who deemed such efforts unnecessary.

In 2015, the General Assembly passed a bill, signed into law, requiring CWCB, with $50,000 in state funds, to set up training programs for local governments on land-use planning that incorporates water conservation practices.

All one needs to do is look at communities in perpetual drought to see what tools might be lacking.

Phoenix “is built for drought,” according to that city’s water utility. Water conservation is promoted as a lifestyle in the city, and “we encourage customers to think about water every time they use it,” according to the website of a city now in its 15th year of drought.

Phoenix’s Water Use it Wisely program – now a national model for conservation – developed more than 100 ways for people to conserve water. They included tips such as washing fruits and vegetables in a pan of water instead of under running water, or putting ice cubes dropped on the floor into a plant instead of dumping it down the sink. Another idea, not allowed in Colorado, would allow a plumber to reroute plumbing so that graywater can be used for landscaping. That’s only legal in Colorado for new development, not existing homes. The city is also setting up “savings accounts” for water, Bracken said. That’s a system for reclaiming wastewater by putting it back into underground aquifers, treated, with the hope that, in a decade, it will be reusable, although not for drinking purposes.

Conservation efforts there have reduced per-person water consumption by 25 percent since 1994, down to about 101 gallons of water per day per person and about 158 gallons per day for business and commercial uses (compare that to Denver Water, at 165 gallons per day). And that’s with a population increase of about 340,000 people during that same time period.

In Las Vegas and surrounding communities in Clark County, Nev., residents and businesses used on average about 123 gallons of water per day in 2016, down 38 percent from 2002, during a time when that area’s population increased by about 600,000 residents, according to the Southern Nevada Water Authority.

Water conservation has been the rule rather than the exception for Clark County since 1991, with what water officials there call record-breaking results: 1.4 billion gallons of water saved by businesses, another one billion gallons saved by residents, and 181 million square feet of grass removed. The water authority also has mandatory watering restrictions, limited to watering twice a week during the summer, and on car washing. Golf courses that use more than they’re allotted can be hit with heavy surcharges, up to nine times their normal water rates. Golf courses also have to submit water use reduction plans. Even the resorts (think the Bellagio, with its famous fountains) reuse water multiple times before the water heads off to treatment and then to Lake Mead.

The water authority also has in place what Colorado has for years been trying to do through legislation: a partnership with home builders to build “water smart homes” with water-efficient landscaping and plumbing fixtures. Entire neighborhoods can be certified as water-smart under the program. “A Water Smart Home may save as much as 75,000 gallons of water each year compared to homes built in the 1990s,” the agency boasts.

The authority strictly enforces turf restrictions. No new turf is allowed in the front yards of single-family homes. Period. Building codes also limit the amount of grass that can be grown to 50 percent of side and backyards, or 100 feet, whichever is greater. Grass isn’t allowed at all on commercial developments, with exceptions only for schools, parks and cemeteries.

For those willing to give up what they already have, the Southern Nevada Water Authority offers rebates for conversions to water-smart landscaping.

Turf rebates are also offered in southern California where, in the midst of a four-year drought, Gov. Jerry Brown in 2015 announced statewide conservation targets to reduce urban water use by 25 percent from 2013 use levels. Water conservation needs to be a way of life in California, according to an executive order Brown issued last year.

During the peak of the drought, the Metropolitan Water District of Southern California, Southern California’s largest water utility, responded by reducing its water deliveries to its 26 member agencies, including water service to Los Angeles, Orange, San Diego, Riverside, San Bernardino and Ventura counties. The 15 percent reduction required communities that hadn’t enacted water conservation efforts to either crack down on outdoor watering or pay as much as four times more for their water.

“Met,” as the agency is known, also expanded its turf removal rebate program from $20 million to $450 million, “funding the largest single investment in water conservation incentives in the nation’s history.” The program was expected to remove 175 million square feet of lawns, but actually removed only 35 million square feet. An audit later blasted the program for poor planning and oversight and cost overruns.

Brown announced this spring that the state was no longer in drought, although the US Drought Monitor reported this month that more than 10 million people in southern California are still affected by drought conditions.

California, Arizona and Nevada all have experienced population increases over the past few decades, and water agencies there have passed policies requiring growth to pay for growth. That comes mainly in the form of tap fees in which municipalities or water agencies charge developers fees to hook up a new home or business to a water line. Those fees can be reduced for homes that use low-water landscaping.

Denver and Aurora both have adopted this conservation tool, changing their tap fees in the past decade from a flat rate for a new home, no matter how big, to one based on the size of the home and the amount of water its residents are expected to use.

“Tap fees have a lot going for them,” said Doug Kenney, director of the Western Water Policy program at the University of Colorado School of Law. “It imposes the new cost of development on the new arrivals, and if the tap fees are high enough, it would discourage builders from building in communities that are short on water.”

But tap fees also have been lowered in order to encourage development, rather than encourage water conservation. A couple of years ago, a developer cited a decision by the Colorado Springs City Council to lower its tap fees as an incentive to build, not as an incentive to conserve water. Two years later, another builder cited the city’s tap fees, nearing $18,000, as a cost to consider for those wanting to live in the city.

However, at least a couple of Colorado cities are tying their tap fees to both growth and water conservation. In Fountain, the fees are part of an incentive program that allows for lower tap fees when a home is built with a lawn with water conservation in mind. A 2012 report by the Alliance for Water Efficiency, co-authored by the city of Westminster, notes that water conservation efforts have kept tap fees lower for new development, since conservation in that city has produced less wear and tear on wastewater treatment facilities.

Increased water conservation among downstream Colorado River states is important to Colorado, which is bound by multi-state compacts with Wyoming, Utah, New Mexico, Arizona, Nevada and California to keep the river full. The river already is overtapped, required to provide more water than it produces. The southern states have first priority on river water, and a longstanding treaty with Mexico gives that country the right to a significant amount of water, as well. The more that’s done downstream to conserve river water, the lower the risk of what’s called a “call” on Colorado to lower its water use.

Agricultural conservation

Seemingly the most obvious sector that should embrace water conservation is the sector that uses the most water: agriculture.

Like in Colorado, the vast majority of California’s water – 80 percent – goes to agriculture. But, unlike Colorado, agricultural conservation hasn’t been left out of the Golden State’s policy-making.

By the time its drought started around 2012, California already had a water management plan in place for agriculture, dating back to 2009. That initiative requires agricultural water suppliers to submit water efficiency plans based on the number of irrigated acres. In 2015, 53 water providers with 25,000 acres or more were required to submit those plans; water districts of 10,000 to 25,000 acres also submitted plans; and smaller districts had financial assistance from the state to develop their own plans.

For example, a plan submitted by the Browns Valley Irrigation District, one of the state’s oldest agricultural irrigation companies with more than 1,500 agricultural customers, showed that it has been building pipelines to move water rather than using unlined ditches, which lose water through seepage and evaporation. More than 20 miles of ditches have been abandoned thanks to those efforts. California makes available about $30 million per year for grants to agricultural water providers for water conservation efforts. The money comes from a voter-approved initiative, passed in 2014.

The Colorado water plan’s chief attempt to glean agricultural water savings is a goal that agriculture transfer 50,000 acre-feet of water to cities and towns, but as an effort to find water for thirsty cities, not as part of the plan’s overall water conservation goal. The plan notes this is to accommodate population growth, but getting farmers to adopt some of these new methods has been a slow starter.

Colorado’s lack of reliance on conservation from a sector that’s consuming most of the state’s available water stems from a couple of reasons. The first is a legal one based on fears Colorado farmers and ranchers have about losing their water rights. Colorado’s byzantine system of water laws ties the amount of water allotted in part on historical consumption. If a farm or ranch doesn’t use all of its water right, the amount of water they’re entitled to can be cut. That becomes a disincentive to decrease water use through conservation.

A second reason is recognition that Colorado farmers and ranchers are already working to improve water efficiency. George, who formerly headed Colorado’s Department of Natural Resources, pointed out that Colorado agriculture has been moving from flood irrigation, where crops are irrigated by flooding fields, to sprinkler systems.

Flood irrigation is the oldest and cheapest but least efficient way to irrigate crops. According to the US Geological Survey, in 2000, about two-thirds of all crop irrigation in Colorado was done with some form of flood irrigation, and the last third with sprinkler systems. Drip irrigation systems, with below-ground piping, applies water slowly and more directly to the plant roots rather than from overhead, and that allows for more precise watering, which sometimes means less of it. Both of these methods (pivot and drip systems) are gaining ground in Colorado agriculture, George said.

“There’s a general recognition that ditch linings, piping and sprinkler systems are efficient. All of that is good for everybody,” he said.

An irrigation ditch lined only with earth or even concrete can lose as much as 50 percent of its water through seepage into the ground, according to the Colorado Water Institute at Colorado State University. Modern linings include synthetic materials that don’t crack, unlike concrete. The CWCB has for at least a decade provided loans through its various funding sources, mostly money that comes from severance taxes, to irrigation companies and reservoirs to swap out less efficient earthen linings for concrete linings or more modern synthetic ones.

Even with these changes, the Colorado Water Agricultural Alliance said in a white paper that “[t]here is a perception that if only farmers would do a better job of conserving water…we would have plenty of water to meet the anticipated gap. The reality is that while there are opportunities for agricultural water conservation, opportunities for producing significant amounts of transferable water for municipal uses are constrained by certain legal, physical, and economic factors.”

Other ways farms and ranches could help meet statewide goals for water savings are being funded by the state Department of Agriculture, which for two years has helped farmers upgrade irrigation systems, using small hydropower, to save water and energy.

Sam Anderson, the program’s director, said there are two different ways to use hydropower on the farm: Hydro-mechanical, which uses a hydraulic pump to run an irrigation system; and hydro-electric, which works in a similar fashion to the way a solar panel system works on a house, through a meter. Anderson explained that the both systems get their energy from the irrigation water as the water flows to the sprinklers. “Water efficiency is the goal of the program,” Anderson told The Colorado Independent.

These programs, Anderson said, can cut water consumption by as much as half and still achieve the same crop yields. He noted that it’s a much more precise delivery of water, and is even good for water quality, since this type of irrigation is also more environmentally friendly, with less chemical and salt runoff. The ACRE3 program currently has four projects in place , another three ready to come online this year, and grants to fund 12 more this year and another 12 in 2018. These efforts are not included in the water plan.

Bart Miller, who leads the Healthy Rivers Program at Western Resource Advocates, pointed out recently that many of the ditches and canals delivering water to Colorado’s farms and ranches are now approaching 80 to 100 years old. By lining them or improving headgates, which control the water flowing through them, “there would be a huge benefit to local streams” and agriculture would use only the water that’s needed, he said.

Photo by Susan Greene.

The family of the homeless street preacher killed in Denver’s jail in 2010 wants the new district attorney to investigate whether the officers responsible switched out the homicide weapon to conceal their excessive use of force.

Marvin Booker died after he tried to retrieve shoes he’d left in a waiting area before being booked. Four deputies piled on top of him, cuffed him, and put him in a chokehold in front of several witnesses. While he lay on the floor, hands cuffed behind his back, deputies holding him down, their sergeant shocked him with a Taser.

Seven years later, questions linger about the Taser evidence, including:

why the sergeant, Carrie Rodriguez, went to her office to purportedly lock up the Taser before seeking medical help for Booker, a detour the city’s official report omits
why, as Booker was dying, Rodriguez made another trip back to her office to retrieve the Taser, later testifying she thought she might need it for protection against him
why she handed in as evidence a Taser that wasn’t deployed the day of the incident
and why a police detective investigating the case switched that Taser for another that was fired that day but 34 minutes after Rodriguez shocked Booker and for a much shorter time than video and eyewitness evidence suggest

Denver’s Safety Department relied on data from the Taser the detective swapped into evidence to inform the autopsy report, the internal investigation of Rodriguez and the four deputies involved in Booker’s death, the Denver District Attorney’s decision not to press charges against the officers, and its own decision not to discipline or fire them.

During the 2014 civil trial, the city called upon an expert on Tasers to explain the time disparity by saying the Taser’s clock was off. But there was no evidence backing up that claim and the witness was forced to concede that Tasers’ clocks may drift by a minute and a half at most, but not 34 minutes.

The Bookers say the chain of events around the handling of the Taser screams of a cover up. As they tell it, Rodriguez had motive to hide or destroy the original Taser and switch it for a proxy so she could avoid prosecution and keep her job after apparently having shocked Booker longer than city policy allows. And they say Mayor Michael Hancock’s administration had an interest in overlooking potential evidence tampering and perjury to protect the city in the civil suit and to temper public outrage over the killing of a 135-lb. man who, even by the officers’ accounts, presented no physical threat.

The family won a $6 million jury award in its civil suit against the officers and the city, but says the administration still owes them answers about the Taser evidence.

“The people of Denver presumably trust law enforcers not to turn a blind eye to the disappearance of a key weapon used in a street murder. Do they have that same trust in the rigor with which law enforcers investigate their own?” the Bookers asked in a letter earlier this month urging Denver District Attorney Beth McCann to investigate.

McCann told The Colorado Independent that she will look into the family’s request, but that her “inclination would be not to reopen” a cased closed by her predecessor, Mitch Morrissey, whom she replaced in January.

Mayor Hancock and Denver Safety Manager Stephanie O’Malley haven’t responded to questions about whether, after five years of red flags surrounding the Taser evidence, they’ve investigated questions about the authenticity of the weapon used in one of Denver’s most notorious excessive force deaths. Two weeks after being asked, the administration’s only responses have been to say that, given the potential for a new criminal investigation, it will refrain from commenting.

***

Marvin Booker, 56, was a minister’s son who grew up in ‘60s-era Memphis memorizing the speeches of Martin Luther King, Jr., to whom his family had ties. He’d recite them in a tone and cadence uncannily similar to the civil rights leader, whenever and wherever anyone would listen. Rather than ministering to a congregation as did his father and brothers, he preached to the homeless, drug addicted, and otherwise disenfranchised. The streets of Denver became his parish, he’d say, and the people on them hungered for faith.

Like many of those to whom he ministered, Booker had some drug problems, mental health challenges, and run-ins with the law.

In the early hours of July 9, 2010, he was hauled into Denver’s Van Cise-Simonet Detention Center on an outstanding warrant for drug possession. He had taken off his shoes in the seating area while waiting for his name to be called. When it was, at about 3:30 a.m., he walked sock-footed to the booking desk, then turned back to retrieve the shoes he’d left behind. A sheriff’s deputy grabbed him for ignoring her order that he return to the booking desk. Booker resisted, swinging his elbow toward her twice after she restrained his arm. Three other officers wrestled him to the ground, piled onto him, cuffed his hands behind his back, and put what’s called a sleeper hold on his neck. He died after Sgt. Rodriguez, the on-duty supervisor that morning, shocked him with a Taser.

The attack was captured on surveillance cameras.

The autopsy report attributed Booker’s death to the pressure deputies put on his back, their carotid hold on his neck, and the electric shock Rodriguez applied on his thigh.

Four of the five officers involved, including Rodriguez, still work in the Sheriff’s Department. None has been reprimanded for excessive force, and none criminally prosecuted.

Booker’s family sued the city for wrongful death and civil rights violations. The case wound its way up to the 10th Circuit U.S. Court of Appeals, which in March 2014 handed down a scathing decision debunking the city’s version of events before sending the case back to U.S. District court for trial later that year. Appellate judges ruled, despite the city’s claims to the contrary, that “Mr. Booker did not resist during the vast majority of the encounter,” “that a reasonable jury could find excessive zeal behind the use of force on Mr. Booker,” and that, even when he had no pulse and his body went limp, deputies were negligent in ignoring signs that he was dying.

A footnote in the 10th Circuit ruling pointed to the discrepancy between the eight seconds recorded in the Taser data and the 25 or more seconds that video evidence shows the sergeant holding the stun gun to Booker’s leg.

Mari Newman, an attorney for the Bookers, said the city never accounted for the holes in the Taser evidence.

“They were changing their stories fast and furious during trial, so it was impossible to ever get to the bottom of it,” she told The Independent. “All we could tell for sure is that the story about the Taser was shifting before our eyes.”

The federal jury found Rodriguez, the four deputies and city government culpable for Booker’s homicide, liable for excessive force, and to blame for, among other things, having overexaggerated the threat Booker posed and destroyed evidence, including officers’ text messages to each other right after he died. The family’s $6 million jury award was the highest in Denver’s long history of excessive force cases.

The Bookers say the money hasn’t ended their sleeplessness, nor given them closure about a homicide in which they say the perpetrators haven’t been brought to justice. They want to know how long their son and brother was shocked so they may understand what he experienced while dying.

The only way to do that would be to download data from the Taser.

***

Court records and documents obtained through a freedom of information request detail a string of irregularities in the way city officials handled Taser evidence in the Booker case.

Hours after his death on July 9, Rodriguez turned over a Taser model X26 with the serial number XOO-379232 as evidence for the police investigation. But it wasn’t until July 22, nearly two weeks later, that M.E. Vigil, the police detective leading the investigation, sought to check data from that Taser to see how long it had been deployed. After some technical problems downloading it, he was able to do so the next day, only to learn that the Taser hadn’t been used on July 9.

Vigil went to find the other Tasers kept in a lock box in the sergeant’s office. Data downloaded from one of them, with the serial number XOO-379203, showed it had been deployed on July 9. The city relied on it as evidence moving forward. But the data downloaded from that Taser doesn’t jibe with other facts in the case. It shows the Taser was activated at 4:10 a.m., more than a half hour after Rodriguez shocked Booker at 3:36 a.m.

At trial, the city tried explaining the time discrepancy through the testimony of Jeffrey Ho, a medical doctor and sheriff’s deputy whom the manufacturer, Taser International, pays to testify as an expert witness. Ho said that if law enforcement agencies sync Tasers to computers set to the wrong time or if they allow Tasers’ batteries to run down, the time reflected in their data may begin to deviate from real time in an effect known as “clock drift.”

But the city presented no evidence that the computer to which the Taser was synchronized was set to the wrong time. And, on cross examination, Ho acknowledged he had no evidence on which to base his conjecture that the Taser had experienced clock drift. Clock drift amounts to only about a minute-long deviation from real time, he admitted. It can’t explain the 34-minute gap between the time Rodriguez shocked Booker and the time the Taser used as evidence was deployed.

The length of the shock was also in dispute. Data from the Taser evidence shows it was fired for eight seconds. The officers involved in the attack testified that was about how long Rodriguez shocked Booker. But witnesses for the Booker family testified it was much longer. Video evidence suggests Rodriguez held the Taser to Booker’s leg for 25 to 27 seconds, although it’s impossible to tell from that footage if it was activated that whole time.

Gov. John Hickenlooper was mayor at the time of Booker’s killing in July 2010. He resigned to become governor in January 2011, when interim mayor Bill Vidal replaced him for six months before Hancock took office in July 2011. It was under Vidal’s watch that the city in May 2011 released its official report on Booker’s killing. That report left out key details that starting coming to light in 2012 during proceedings in the civil case.

One such detail concerns Rodriguez’s handling of the Taser minutes after she shocked Booker when her colleagues carried his unresponsive body from the floor of the waiting area to a nearby holding cell. The city’s report reads: “About one minute after shutting the cell door, Sergeant Rodriguez can be seen on video going toward the nurse’s office” to get medical help.

As the family points out in their June 8 letter to the DA, the statement “glosses over what happened during that one minute.”

Video evidence presented during the civil case shows Rodriguez with the original Taser in hand heading in the opposite direction of the nurse’s station toward her own office where several Tasers were stored in the lock box. Rodriguez acknowledged in testimony that she went to her office first to lock up the original Taser before getting medical help for the man she had just shocked. She also testified that on her way from the nurse’s office back to the cell where Booker’s lifeless body lay, she made a second detour to her office to retrieve the Taser in case Booker somehow revived and threatened violence.

“Wasn’t there a mix-up on what happened with the particular Taser you used after you went and turned it back in?” an attorney representing the Booker family asked her during a January 2012 deposition.

“I think there was some. The – I know I – there’s – the container that holds the Tasers has more than one in there. So when – I think Mr. Vigil informed me later that the Taser that I believed I had during the incident was not the one that was actually the one that I used,” Rodriguez said.

Later in her deposition, Rodriguez said she turned in a Taser to a captain at the jail in the hours after Booker’s killing.

“And it turns out that was the wrong one?” the lawyer asked.

“Yes.”

“How did you in fact give him a Taser different than the one you used?”

“The only – the only thing I could figure out is when I put the Taser away the first time, and when I went to go get it the second time, I grabbed a different one when I grabbed the – for the second time.”

“Well, is there just like a great, big box with Tasers in it, or is there a particular slot you’re supposed to put them in, or what?”

“It’s not a huge box, but it’s a box that has more than one in it, yes.”

“Do you just reach into the box and grab a Taser?”

“Yes.”

The city has not made Rodriguez available for an interview and The Independent’s attempts to reach her have gone unanswered.

Right after paramedics removed Booker’s body from the jail, testimony shows that Rodriguez and the four deputies gathered in her office to talk, at her suggestion. From there, three of the deputies went to see video of their attack on Booker, but were denied access to the footage by their colleagues.

Asked in a deposition why he sought to see the video just minutes after the incident, Deputy James Grimes answered, “for no particular reason.”

Immediately after they tried seeing the video, the deputies joined Rodriguez and the other deputy to talk again, this time outside the jail near the employee entrance. That gathering, too, came at Rodriguez’s suggestion. At least three of the officers testified that they were comforting each other and trying to decompress.

Based on the chronology of events described in civil proceedings, the Booker family believes that the five officers gathered outside the employee entrance – and out of earshot of their colleagues – at 4:10 a.m., the same time the substitute Taser used as evidence was deployed.

The city, in response to The Independent’s freedom of information request for video of the exterior of the employees’ entrance, said last week that footage was not “considered relevant to the investigation, so none was retained.” Mary Dulacki, the Safety Department’s record administrator also wrote that “There were no cameras capturing the Sgt.’s office.”

Sheriff’s Department policy requires officers to file a report whenever they deploy a Taser. But no such report was filed in the Booker case. Rodriguez said she was instructed not to do so.

“Do you know why you never complied with the policy that you have to file a Taser usage report,” an attorney for the Bookers asked her in a deposition.

“I was never told to.”

“Well, you’re told to by the policy that says when you deploy a Taser, you have to file a report?”

“Correct.”

“At some point somebody said, We’ll do it later on, so don’t do it now?”

“Correct”

“Who was that?”

“I believe it was – I don’t remember who told me.”

“Must have been somebody in the command staff above you, or else you wouldn’t have taken it seriously, right?”

“My command staff or my attorneys. Somebody told me not to.”

***

At the civil trial, U.S. District Judge R. Brooke Jackson directed the city’s lawyer, Tom Rice, to bring to the courtroom data from the Taser that was fired on Booker at 3:36 a.m. Rice did not comply, and the issue wasn’t resolved. When Wade Gardner, in his documentary, “Marvin Booker was Murdered,” asked Rice about that part of the trial, Rice admitted it “was not our finest moment.”

“The missing Taser was the smoking gun in this case,” says Gail Booker, Marvin’s sister-in-law. “They should have been investigating this long ago without us still asking them to investigate seven years later.”

The Bookers say that once Rodriguez admitting during civil proceedings that she had turned in the wrong Taser, they expected charges would be pressed against her. The family is incredulous that four years after hearing that admission, Hancock’s administration has not definitely and publicly ruled out the possibility that the Taser upon which the city built its defense of the officers’ actions may, in fact, be the wrong Taser.

“When will they stop with their lies, their cover ups? When will they own up to the fact that the Taser that matters, the one used on Marvin, is nowhere to be found, and that these others…are just made up evidence? When will someone be held accountable for this mess,” Gail Booker said, adding that “no company pays out $6 million on an employee and nothing happens” in terms of discipline.

The family wants “everyone who knows anything about the whereabouts of that Taser” investigated by the DA’s office.

“And we mean everyone,” Gail Booker said.

Denver has a strong mayor form of government, allowing the executive branch, not the city council, to decide which legal battles to fight. Under Hancock’s watch, the city has spent an untold amount of tax dollars – beyond the $6 million jury award to the family and safety officials’ and city attorneys’ time working on the case – defending Booker’s killing with private lawyers and their support teams, expert witnesses and all related travel expenses.

Hancock also has spent personal capital on the case. Several members of Denver’s Black ministerial and civil rights communities and others who’ve closely followed the city’s disciplinary decisions and defense in the civil case have ended longtime friendships with the mayor over the lengths his administration has gone to justify the homicide.

Still, Hancock has cited the Booker case as a reason to implement what he has called sweeping reforms in the Sheriff’s Department. He and his appointees have at several news conferences and public appearances touted those reforms as successes. But data showing ever-increasing assaults in Denver’s jails, as well as deputies’ 2015 killing of Denver jail inmate Michael Marshall, a mentally ill homeless man, in ways similar to Booker’s homicide cast those successes in doubt. As the jails grows overcrowded and deputies work record levels of overtime, the risk of more killings like Booker’s and Marshall’s grows.

Hancock and Public Safety Manager O’Malley haven’t responded to inquiries about the handing of the Taser evidence, how they reconcile discrepancies between the Taser data and facts of the case, and whether they investigated once those discrepancies came to light. They also didn’t answer questions about the Bookers’ allegations of a cover up.

“The Department cannot comment on these details while the District Attorney’s office is considering the family’s request for a second review into the incident,” O’Malley’s strategic advisor, Daelene Mix, wrote in an email last week. She noted that her office “will reach out to the Booker family regarding their concerns” and to the news media “at the appropriate time.”

McCann swore in as Denver’s chief prosecutor in January of this year after running as a change agent. The DA’s office was led for 12 years by Morrissey, who never prosecuted a uniformed officer in connection to an on-duty use-of-force case. McCann said she will look into the Bookers’ allegations and “will be interested in what I find out.” Yet, she said her “inclination would be not to reopen” a cased closed by her predecessor.

“Typically we don’t go back and reopen cases where a decision is already made,” McCann said. “I think there has generally been closure.”

The Rev. Spencer Booker, Gail Booker’s husband, said closure would have entailed holding the officers accountable for his brother’s death. Instead, he watched all five walk out of the courthouse after the $6 million court judgement against them to resume their normal lives.

“They put their backpacks on and walked down the street. One got in the car with his family. They got on the bus,” he said. He said he remembers wondering “How is it that they go back to work…?” That question, he said, has nagged and him and his family every day since.

There will be no closure, Booker’s mother, Roxey Booker-Walton said, until McCann considers new evidence about the Taser that came to light during civil proceedings – evidence to which Morrissey likely wasn’t privy when deciding not to press charges against any of the officers. She will not sleep soundly, she added, until the city explains its handling of the weapon used in the killing of her son.

“Something happened criminally for that Taser not to be reported or confiscated as evidence,” Spencer Booker said. “From the Police Department to the Sheriff’s Department to the Safety Manager to the Independent Monitor to the DA, that they would all lean on each other’s story without properly investigating each step of the way… that doesn’t sit right. It’s not right.”

Each of the Bookers say they wonder every day about a Taser they’re convinced officers removed from the jail and destroyed. This is what they talk about at every family get-together, every year on Marvin’s birthday, and every anniversary of his death.

“There’s not going to ever be a gathering when we don’t discuss it,” Gail Booker said.

Spencer Booker plays over and over in his mind his conversation with Phillip Wicks, who witnessed the attack in the jail and described the surprising length of the Taser’s electroshock and the sound it made.

“ClackClackClackClackClack,” Spencer Booker recalled. “The way he explained it hurt my body.”

ClackClackClackClackClack, he repeated, and then repeated again. ClackClackClackClackClack. The sound rattles in his head. It came to him most recently when changing a fuse.

“It jolted me,” the Reverend said. “It jolts me, thinking of them doing that and what my brother must have felt his last breath of his life.”

Photo of Marvin Booker courtesy of his family.

The U.S. Supreme Court has decided to hear a case set to pit Christian religious beliefs against gay rights over a never-baked wedding cake in Colorado.

In 2012, the owner of Masterpiece Cakeshop in Lakewood, Jack Phillips, refused to make a cake for Charlie Craig and David Mullins, a gay couple who were getting married in Massachusetts but celebrating in their home state of Colorado. The baker said making the cake would be in conflict with his religious beliefs, and that he had a First Amendment right of artistic, religious and free speech expression to say no.

Colorado, however, prohibits public businesses like Masterpiece from refusing to provide services based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”

So Mullins and Craig took Phillips before Colorado’s Civil Rights Commission, a regulatory agency that enforces Colorado’s anti-discrimination laws. In 2014, the agency ruled the cake maker violated state law. More than that, the agency ordered the bakery to change its policy of not providing services based on a customer’s sexual orientation.

Then, in 2015, the Colorado Court of Appeals heard the case, ruling unanimously that the cake maker had violated the state’s anti-discrimination law. The judges ruled that creating the cake for the gay couple does not mean the cake maker is expressing support for gay marriage.

Additionally, the justices cited a previous court decision in a case challenging the 1964 Civil Rights Act, as follows:

Undoubtedly defendant . . . has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This Court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishment upon the ground that to do so would violate his sacred religious beliefs

If the Colorado cake maker, who is in his 60s and belongs to a Baptist-rooted church, wants to oppose same-sex marriage, fine, the judges said. The cake maker could even say so on his website or on a sign in his store. But under Colorado law he is prohibited from “picking and choosing customers based on their sexual orientation,” they ruled.

In 2015, the U.S. Supreme Court legalized same-sex marriage nationwide. The cake shop issue will be the latest big LGBTQ case for the nation’s highest court, now in the Trump era, and is also certain to throw down battle lines of a major culture war with Colorado at its center.

So why is the U.S. Supreme Court hearing this case?

Phillips, the shop’s owner, disagreed with the Colorado Court of Appeal’s ruling, so he appealed that decision to the Colorado Supreme Court.

The state’s highest court declined to hear the case. And so in August of last year, Phillips and his lawyers asked the U.S. Supreme Court to weigh in. It has remained in legal purgatory, until this week — during Pride month, no less — when the nation’s highest court announced it had agreed to take it on as Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. (Note: Originally the case was set as Charlie Craig and David Mullins v. Masterpiece Cakeshop, but since Phillips is attempting to overturn the previous ruling by the Colorado Civil Rights Commission, he is now the plaintiff.)

Often the U.S. Supreme Court decides to hear cases because two appeals courts in different circuits ruled differently on a similar case. But that didn’t happen here.

The U.S. Supreme Court often also agrees to hear cases that can shape how the courts interpret the U.S. Constitution, and this case could certainly do that. No public date is set, but the court begins its next term in October.

What are the legal arguments?

Cake shop owner Phillips is represented by lawyers for the Arizona-based Alliance for Defending Freedom, a law group whose stated mission is “to keep the doors open for the Gospel by advocating for religious liberty, the sanctity of life, and marriage and family.”

Greg Scott, a spokesman for ADF, told The Colorado Independent that Phillips did not discriminate because of someone’s identity or status, but rather just declined to “engage in speech and participate in the celebration of an event in violation of his core convictions.”

In their opening brief to the U.S. Supreme Court, the lawyers wrote that “it is undisputed” that the Colorado Civil Rights Commission does not apply state law to ban an African-American cake artist from “refusing to create a cake promoting white-supremacism for the Aryan Nation,” “an Islamic cake artist from refusing to create a cake denigrating the Quran for the Westboro Baptist Church,” and “three secular cake artists from refusing to create cakes opposing same-sex marriage for a Christian patron.” Therefore, they argued, the state law should not prohibit their client’s “polite declining to create a cake celebrating same-sex marriage on religious grounds when he is happy to create other items for gay and lesbian clients.”

The cake maker and shop owner is an artist, the lawyers wrote, and his faith “compels him to use his artistic talents to promote only messages that align with his religious beliefs.” And he even loses money by doing so, they wrote. But the state has ordered him to create cakes “celebrating same-sex wedding ceremonies,” with which he disagrees.

So the U.S. Supreme Court, they wrote, needs to rule in this case “to alleviate the stark choice Colorado offers those who, like Phillips, earn a living through artistic means: either use your talents to create expression that conflicts with your religious beliefs about marriage, or suffer punishment under Colorado’s public accommodation law.”

“A victory for Jack’s freedom to create the art he chooses and his freedom from coercive mandates that force citizens to speak as the state commands or face severe punishment is a victory for everyone, whether you agree with Jack’s views or not,” says Greg Scott, a spokesman for Phillips’ attorneys.

On the opposing side of this high-profile Colorado case are the plaintiffs and their attorneys at the American Civil Liberties Union.

“Religious freedom is an important fundamental value in our country. It’s protected under the Constitution,” ACLU of Colorado legal director Mark Silverstein told The Colorado Independent. “But religious freedom doesn’t give someone a license to discriminate. I think that’s what this case is about.”

Silverstein says he is hoping the case will function to sustain a principle that one’s religion does not give one the right of exemption from state anti-discrimination laws.

“Colorado says if you open a business, you operate by the public rules,” he says. “The public rules are you welcome the public in your business and you don’t discriminate on the basis of race, religion, sexual orientation, etc.”

And this is not a states’ rights case, Silverstein says, it’s a “human rights” case.

What is the couple who sued thinking right now?

When Charlie Craig and David Mullins first heard the news that justices on the nation’s highest court would hear a case involving their personal experience, there was some “gravity” to that knowledge, they said.

The couple, who live in Denver and were vacationing in Puerto Rico on June 26, the day the news broke, said in a phone call that while they are disappointed their case is still swirling around the courts five years later, at each point in the process thus far courts have found in their favor.

“We strongly believe in the legal foundation of our case,” Mullen said.

The couple recalled how the story went down in 2012 after their wedding planner recommended Masterpiece Cakeshop in the small city outside Denver. When Craig called to set up an appointment he didn’t mention it would be a same-sex ceremony. “I didn’t think that it would matter,” he said, recalling the phone call.

It was during the sit-down appointment when Phillips asked if the wedding was for the two men, they said.

“We said ‘yes, this will be our wedding cake,’ and he stopped us immediately and said, ‘I do not make cakes for same-sex couples,’” Craig said. A long pause followed. One of their mothers was there. They were mortified, Craig said, so they left.

After returning home, the couple wrote about their experience on Facebook, and the post went viral.

“Over the next couple of days we ended up experiencing an outpouring of support,” Mullen said. “Eventually we came to the conclusion that we wanted to pursue this not for ourselves but because all those people who were supporting us, they weren’t just receive us as individuals. They were supporting the principles that LGBT people deserve to receive equal service in places of public accommodation. And that’s why we decided to go forward with this case.”

Phillips in 2015 offered his version of events from that day to The Daily Signal, a publication of the conservative Heritage Foundation. He characterized the conversation as lasting no longer than 30 seconds in which he wasn’t able to explain his Christian views.

“I said, ‘You know, I’ll make you a birthday cake, shower cake, I’ll sell you cookies and brownies, I just don’t do cakes for same-sex weddings,'” Phillips said. “At which point they stomped out. One went out one door, the other went out the other door, swearing at me and flipping me off.”

He said he got at least one death threat.

“What’s important is that I’m being obedient to Christ,” Phillips told The Daily Signal about the stand he took. “He’s given me this business and if he were here, he wouldn’t make the cake. If he were my employee, I wouldn’t force him to make the cake and participate in it because it doesn’t honor God. The Bible calls it a sin.”

What does this case mean for Colorado?

It’s hard to say how the court might rule given its current makeup and because of swing-vote Justice Anthony Kennedy who has shown previous support for LGBT rights and also defended religious liberty, says Scott Moss, a professor of law at the University of Colorado.

But if there’s a ruling in favor of the couple, it means that the “status quo in Colorado remains,” he says. ”Currently, a private business can discriminate on multiple criteria, but the minute it becomes a public business it cannot.”

However, if the Supreme Court rules in favor of the cake shop, Colorado’s anti-discrimination law would be irrelevant, since the First Amendment right would override it and all other state and federal statutes barring discrimination, Scott says.

And that would be a big change to public life in Colorado, as well as about 22 other states that have similar anti-discrimination laws.

Wait, what? So could a cake maker already do what Phillips did legally in another state?

Yes.

Had shop owner Jack Phillips lived and worked in one of the other states in the nearly half the country that doesn’t currently have a public accommodations law protecting discrimination based on sexual orientation, there likely wouldn’t have been a court case about it, says Silverstein of the ACLU.

Colorado has that protection under its state law— as of about 15 years ago. And even that could technically change if lawmakers were so inclined. Republicans for the past three years have tried and failed in Colorado.

“We know that in the majority of states, a couple can get married on a Sunday and then go to work on Monday and get fired or denied housing because of who they are,” says Laura “Pinky” Reinsch, the political director for One Colorado, an LGBT advocacy group.

Here’s a map of which states do and don’t have public accommodations laws, by the Human Rights Campaign:

Where does Neil Gorsuch, the newest justice who is from Colorado, fit in to all this?

Helping decide this case with origins in Colorado will be Neil Gorsuch, the court’s newest justice— and a Colorado native.

Throughout his judicial career, the conservative jurist who was nominated by President Donald Trump, has consistently ruled in favor of religious freedom. His most famous ruling came in a high-profile and controversial 2013 decision known as Hobby Lobby v. Sebelius.

The craft store chain didn’t want the government to force it to provide insurance coverage for contraception, something it objected to on religious grounds. Gorsuch, who sat on the 10th Circuit Court of Appeals at the time, sided with the appeals court’s majority opinion that used the logic of the U.S. Supreme Court’s money-in-politics Citizens United decision to recognize constitutional free speech protections for corporations on religious grounds.

At the time, the ACLU of Colorado used similar language in its opposition to that opinion as it uses in opposing the actions of the cake shop owner now.

“Religious liberty is a fundamental freedom,” said ACLU of Colorado’s Deputy Legal Director Louise Melling back then. “We are all entitled to our religious beliefs but not to impose those beliefs on others. A business like Hobby Lobby cannot use religion to discriminate by denying women coverage for contraception.”

At the time of Gorsuch’s nomination, he was cheered as someone who fought for religious liberty on the court. Amy Vitale, fellow at the nonprofit Becket Fund for Religious Liberty, wrote how Gorsuch would “defend” religious liberty upon his nomination.

Writing for The Atlantic magazine, Garrett Epps, who teaches constitutional law at the University of Baltimore, argued Gorsuch might have a “blind spot” in the area of religious freedom because of the Hobby Lobby decision.

Asked how he felt about Gorsuch on the bench hearing this case, the ACLU’s Silverstein told The Independent, “I don’t know how he’s going to come out, but he’s only one of nine.”

What are LGBTQ rights groups in Colorado saying?

At least one of them is concerned the Supreme Court decided to take the case because of the possibility of an undesired outcome, especially in a political climate that encourages the introduction of religious freedom laws in statehouses across the country.

One Colorado’s Reinsch also says she worries the court’s makeup could change by the time the nine justices hear the Masterpiece case. Specifically, she told The Colorado Independent, she is concerned about the possibility that Justice Anthony Kennedy, who is 80 years old and often a swing vote on LGBTQ-related decisions— he wrote the court’s opinion legalizing same-sex marriage but voted in favor of The Hobby Lobby decision— could retire, and Trump would nominate a more conservative replacement, solidifying a 5-4 conservative majority.

“We’re also concerned because generally the Supreme Court takes cases where there’s conflict on [lower court] rulings, and there isn’t on this one, and the fact that the rulings have been so consistent in Colorado, it’s just very interesting that they decided to take it up,” Reinsch says.

The Supreme Court’s announcement on Monday that its justices would hear the case is also worth noting. June 26 is the anniversary of three prior U.S. Supreme Court decisions that advanced LGBTQ equality.

“Whether or not it intentionally happened on the anniversary, this could poke holes in all the work that the groups like ours and others across the country have been doing for the last decade or two,” says Reinsch.

Lucy Haggard contributed to this report.

Photo by angela n. for Creative Commons on Flickr.

Words of praise flowed from environmental groups last week after Gov. John Hickenlooper signed an executive order calling for Colorado to reduce greenhouse gas emissions by 26 percent. This reduction, as compared to 2005 levels, must be achieved by 2025.

The executive order aligns Colorado with 13 other states in the new Climate Alliance that have pledged to honor Paris climate agreement goals, bucking President Donald Trump’s announced exit.

Hickenlooper said many of the right things when announcing his order “supporting Colorado’s clean energy transition” at Red Rocks last week. He talked about past successes that have improved the environmental economy while accommodating and even enhancing economic growth. He said the state must switch more electrical generation from coal to renewables. He called for a plan by January to ramp up the charging infrastructure for electric vehicles, using at least a portion of Colorado’s $68 million share of the $15 billion Volkswagen must pay for cheating on its diesel emissions.

But the plan was also conspicuous for what it failed to say. Almost entirely absent were the concrete steps it will take to achieve these goals in the many sectors of the economy that produce greenhouse gas emissions. As Hickenlooper enters his last 17 months in office—possibly eyeing a run for president—his legacy will be built not just on what is promised, but also what is accomplished.

For all the praise, there are equal parts skepticism, much of which involves a question the governor’s executive order does not even attempt to answer. What exactly will it take to meet the goal the order spells out?

Cuts will have to come from more than one sector. The 2014 Colorado Climate Plan says that electrical production was responsible for 25 to 35 percent of Colorado’s greenhouse gases, and transportation, including passenger cars, freight trucks, commercial aircraft and rail, account for about 25 percent. Fuels used for residential, commercial and industrial purposes make up 21 percent. Natural gas production and transmission and agriculture came next, followed by methane emissions. Hickenlooper’s order made no mention of these smaller but still substantial contributions.

Environmental groups say Colorado will need what one describes as a “mix and match” variety of policy options that range from coal plant closings, higher standards that lessen use of fossil fuels in heating buildings, and steps to lower methane emissions from both existing and former coal mines as well as oil and gas drillings. Because Colorado’s greenhouse gas emissions come from so many sources, there is no single answer.

“We need both good goals and good actions to get there,” says Stephen Saunders, speaking for the year-old Colorado Communities for Climate Action, a consortium of 14 cities and counties. “Nothing has started yet in terms of concrete action.”

Whatever the policies needed to achieve the 26 percent reduction in eight years, they’re “not a path we are on” now, says Howard Geller, chief executive of the Southwest Energy Efficiency Project, a Boulder-based group. The governor’s order represents a ”significant change in direction. That’s an economy-wide goal, not just the electricity sector. We have to get big reductions in transportation. We have to get big reductions in buildings. …yeah, we’re getting big reductions from Xcel, but Xcel is not the whole state.”

But Clean Energy Action’s Leslie Glustrom was less charitable. Reading the executive order last Tuesday, she told The Colorado Independent, its goals are “so feeble as to be practically meaningless.”

If that’s a dark view, consider that an iceberg the size of Delaware recently calved from Antarctica.

The political landscape

One way to view Hickenlooper’s goals is through Colorado’s purplish political geography. It’s neither Boulder nor Colorado Springs. The Yale University poll from 2016 found that 71 percent of Coloradans believe global warming is happening, a hair above the national figure of 70 percent. Only 53 percent, however, agree that global warming is caused mostly by humans. (But asked if they support regulating C02 as a pollutant, 74 percent agreed).

Another way to measure his goals is to compare them to those articulated by former Gov. Bill Ritter in 2007. Ritter called for a 20 percent economy wide reduction by 2020 and an 80 percent by 2050. He also offered six bridge strategies, including creation of an agriculture offset market, in an effort to create a carbon market.

Hickenlooper’s order is less comprehensive and does not specifically reaffirm Ritter’s mid-century goal. It can instead best be seen as an argument for reducing the carbon footprint of Colorado’s electrical supply. In addition to the economy-wide reductions of 26 percent, the order describes a goal of 25 percent fewer carbon dioxide emissions from the electricity sector by 2025 and 30 percent five years later—both compared to 2012 levels. The governor’s order also seeks electricity savings of 2 percent of total electricity each year. In other words, deliver the same services with less electricity. Xcel has been at around 1.5 percent, but Fort Collins Utilities has been achieving 2 percent annually by switching out older, inefficient light bulbs and other, more complicated strategies.

“They’re demonstrating it can be done,” says Geller of the Southwest Energy Efficiency Project. “We need to do that around the state.”

And there’s also the intent to provide economic development strategies and other support to “communities impacted by our nation’s changing energy landscape.” Oak Creek, Hayden and Craig, all in northwestern Colorado, are especially dependent on coal taxes and jobs, as are several communities in Delta County and Nucla, Naturita and Norwood, in southwestern Colorado. Glustrom describes that goal as the “most important” in the executive order because “it’s a critical piece for moving our state forward.”

Is any of this enough? C02 emissions are barreling toward 450 parts per million, the threshold for massive, irreversible climate destabilization long identified by many scientists. Former NASA scientist Jim Hansen, among others, has argued we must halt emissions and drive down concentrations to 350 ppm.

Activist and writer Bill McKibben has taken up that goal with his grassroots-driven organization, 350.org. McKibben has been in Colorado several times in recent years to make his fierce argument that we must keep the vast majority of fossil fuels in the ground if we hope to have a planet habitable for humans.

Hickenlooper calls himself “pro-business but with high standards.” He used that self-description at a forum in late June sponsored by the Aspen Ideas Festival. With the majestic Maroon Bells as his backdrop, he told the story of how Colorado in 2014 came to adopt regulations —widely considered the best in the nation—that reduce methane emissions associated with oil and gas drilling

During the four months of negotiations among drilling companies and scientists from the environmental community, the parties several times stalked out. “Our job was just to be the convener,” that got them back to the table, Hickenlooper said.

In Aspen, Hickenlooper also talked about the need for concreteness to accompany goals. He admitted that he and his team had much yet to figure out about its climate change strategy. “Hopefully, in the next couple of months, (we will) find a way we can actually close a couple of power plants,” he said.

A stampede toward renewables

Some goals will be easier than others. In specifying a goal of reducing carbon dioxide emissions from the electricity sector 35 percent by 2030 as compared to 2012 levels, Hickenlooper is swimming with a strong tide. In 2015, 78 percent of Colorado’s electricity was generated by burning fossil fuel. But utilities are rushing to embrace renewables.

Tumbling prices of wind and now solar and storage have been dramatically undercutting the price of coal generation. This is not just a story in California or New York. It’s a story of middle America. Nebraska’s Omaha Public Power District last year pulled the plug on a nuclear power plant called Fort Calhoun that was commissioned to run until 2033. In doing so, the utility is swallowing $1.5 billion in decommissioning costs. Even so, it’s cheaper than to continue operating the plant.

In Iowa, Warren Buffett’s MidAmerican Energy this year announced a $3.6 billion investment in wind power with the goal of leaping from 55 percent wind energy to nearly 90 percent in the next few years. In Arizona, it’s solar. Tucson Electric in May inked a 20-year solar-plus-storage deal at less than 3 cents a kilowatt-hour. That compares with the low end of electricity from unsubsidized fossil fuel at 4.8 cents a kilowatt-hour, according to Clean Technica, a website.

Xcel Energy, which provides 55 to 57 percent of Colorado’s electricity, is also rushing to embracing renewables. The same day that Hickenlooper announced his executive order, Xcel’s chief executive posted an op/ed that pointed out that electrical utilities nationally have reduced carbon emissions by 25 percent since 2005. “The Paris agreement would have required a 26 to 28 percent reduction by 2025” Ben Fowke wrote. Xcel, he said, is on track to reduce its carbon emissions 41 percent in its six-state operating area by 2021 as compared to 2005.

In recent years, Xcel has closed two smaller coal-fired power plants and, as a result of the Clean Energy, Clean Jobs Act passed during the Ritter administration, will have completely switched out plants in Boulder and north of downtown Denver to natural gas by the end of 2017. Other coal plants—one of the three units at Craig and a small plant at Nucla operated by Tri-State Generation and Transmission—are scheduled to close within the next few years to comply with federal laws governing ozone formation.

More coal plants will close, not because of environmental laws, but because of price, says Ron Lehr, a former PUC chairman. He also points out that Xcel has figured out how to integrate much higher levels of renewables while ensuring reliability. The arguments against renewables a decade ago can be discarded. The question is not whether the plants will close, but how soon.

Xcel has four aging units—two at Hayden and two in the Comanche station at Pueblo—that began operations between 1965 and 1976. They collectively can generate 1,244 megawatts. That’s more than 10 percent of Colorado’s total electrical generating capacity.

With Lehr and another former PUC chair, Ron Binz, hovering in the background, State Rep. Chris Hansen introduced a bill in the last legislative session that sought to make it easier for Xcel to close those plants through issuance of rate-payer backed bonds. The process, called securitization, works at the heart of utility financing. Hansen’s bill was premised on the idea that Xcel can get lower interest rates with ratepayer-based bonds for its debt equity than it can now. The lower-cost interest payments can leave both Xcel customers and shareholders unharmed or even benefit them, and everybody gets less carbon dioxide in the atmosphere. A key is that—as was noted by Hickenlooper’s executive order—federal tax credits that make renewable energy even cheaper are scheduled to be phased out by the end of 2019.

Hansen’s bill included a carve-out for proceeds to help coal-dependent communities of Colorado transition to new economies. The bill passed the Democrat-controlled House but failed to get out of committee in the Republican-controlled Senate. No reason was cited, but Lehr believes the coal mining industry retains lingering influence in Colorado and in right-leaning publications beyond its economic contributions.

Expect that bill, or something like it, to return to the Legislature next winter. There is also potential for changes strictly through the PUC. But again, the critical selling point is the ability to shift to renewables without increasing costs to consumers.

“That’s where the magic really happens and things change,” Hickenlooper said in Aspen as he emphasized the plummeting costs of renewables. “If you can say cheaper, that transforms the conversation.”

Other utilities—Black Hills Electric, which serves the Pueblo area; the 29 municipal utilities, and the 22 electrical co-operatives (most of which are supplied by Tri-State) —provide more than 40 percent of Colorado’s electricity. Lehr thinks they, too, can be persuaded to shift to renewables, again because it may save them — and their customers — money.

The transition, as the executive order and Hansen’s legislation acknowledge, has consequences for the tax bases of coal-dependent communities. In Aspen, Hickenlooper addressed that by saying that Colorado now has 1,100 coal-related jobs but 9,000 cybersecurity jobs available. “And two-thirds of them don’t require a degree” (beyond a high school diploma),” he said, which is true also for the coal jobs.

Colorado must expedite the transfer of “real jobs in real time,” he said, and he sees a state role for re-training of coal sector workers. “It would cost some money, but I don’t think it would cost as much money as everybody seems to think.”

What about buildings?

Electricity is only one part of this story. Transportation produces almost as much carbon dioxide. Hickenlooper’s key strategy here is to step up the charging infrastructure for electric cars. Last December, he joined with governors of Utah and Nevada in promising charging stations along major highways. When that is achieved, it will be possible to drive electrically from Kansas to the Pacific.

But absent from the order was mention of California’s clean-car standard, which has now been embraced by 13 states and Washington D.C. Nor were other transportation strategies identified. If Colorado’s goal is to be met, there will have to be more than charging stations —much more, according to Saunders and others.

The Colorado Department of Transportation will be a key agency to watch. So will the Colorado Department of Public Health and Environment and, in particular, the Air Quality Control Commission. In a previously scheduled hearing, that agency this week is scheduled to take up steps to further reduce ozone caused by oil-and-gas operations. Those efforts will presumably also advance efforts to achieve the greenhouse gas reduction goals.

Buildings are conspicuously absent from the executive order. Residential buildings alone were responsible for 23.2 percent of total energy use in Colorado, according to the 2014 Climate Plan. We heat them and we heat the water in them, plus we cool them—all requiring energy. But unlike coal plants, buildings are expected to last a century, maybe more. Retrofitting a badly designed building is enormously expensive.

In 2007, Colorado legislators agreed to raise the bar for buildings in Colorado. That bar remains laughably low if you consider what must be done to decarbonize our economy by mid-century. Unlike oil and gas operations, where the state insists in supremacy in rule making, building codes are left to local jurisdictions. Many towns, cities, and counties still use the 2006 international energy conservation code. By 2012, the energy savings associated with code implementation had increased 30 percent. Keep in mind that this building code does not represent what is possible. Like a group of hikers, the code adoption moves at a slower pace.

Analysts say that that the Hickenlooper administration can get some things done with existing authority, but other actions are best achieved with the broader mandate of legislation. Hansen, the state legislator, says he believes there are broad areas of agreement in energy and transportation for bipartisan support. “We have a divided Legislature, and we need to find ways to work together. I think there are number of ways that it is possible,” he said.

In this purplish state where voters send more Republicans to Congress than Democrats, leaders can only get so far in front of their constituencies. But neither can they lag. Every week, it seems news arrives for further evidence that climate scientists have been, if anything, conservative in their predictions .

At the base of Maroon Bells, Hickenlooper talked about the need for concrete images when communicating climate change risk to the public. Rising oceans and the increasing acidification now destroying coral reefs provide unmistakable evidence of global warming, he said. But he wouldn’t concede that droughts and extreme weather in our state offer the same irrefutable evidence that climate change is underway here. Natural variability can mask climatic shifts, he said.

But he did not deny future impacts. “Half of our storage is in the snow, in the snowpack.” he said. “That’s hard for people to get their arms around. But if we (warm) just a degree or two, and that precipitation doesn’t get stored in snow, we run into real trouble.”

Hickenlooper that morning also talked about political alignments. “This is a time when there are going to be some new ideas on how states can work together and how municipalities can work together,” he said. “Certainly in the next month we will come forward with some ideas.”

Whether those ideas are strong enough, or fresh enough, to put Colorado on a more clear path to taming greenhouse gases remains an open question. The answer will also say much about the governor’s political legacy—and, perhaps, his fitness for the White House.

Photo by Allen Best

Correction: An earlier version of this story said the governor’s executive order orders a new inventory of greenhouse gas emissions. It does not. Instead, the order directs the Colorado Department of Public Health and Environment to come up with a new rule requiring large polluters to report their emissions to the state, a precautionary move should current federal rules requiring such reporting be rescinded.

In the days leading up to a Republican vote in Congress to repeal and replace— or just repeal— Obamacare, 1,500 miles away in Colorado the Republican candidates for governor were seething.

“I think it’s an utter disgrace that literally every Republican that’s currently in Congress campaigned on repealing the ‘unaffordable’ care act and now that they have the opportunity to do it they’re wimping out,” said Victor Mitchell, an entrepreneur and the only GOP candidate so far to have previously served in the legislature.

A day later those Republicans, including Colorado GOP U.S. Sen. Cory Gardner, voted in the afternoon to begin debate on a health care bill with many not even knowing how a bill might look. Arizona GOP Sen. John McCain, who flew to D.C. for the vote after being diagnosed with brain cancer, acknowledged the Senate had crafted its bills “behind closed doors.” Later, the Senate voted on a plan to replace Obamacare with Gardner supporting it, but it fell through.

In recent weeks, Republican leaders have tried to nail down a vote on their seven-year promise to obliterate former Democratic President Barack Obama’s signature health care law. But their attempts collapsed, even though Republicans hold the House, the Senate and the presidency.

“We seem to control all the things necessary to make some important decisions on an extremely important topic and we can’t even get a vote to have a vote,” said a frustrated George Brauchler on the eve of the Senate debate. “Just disappointing.”

The Arapahoe County-area district attorney who prosecuted the Aurora theater shooter said he hoped Republicans would at least get a vote on some kind of repeal plan so voters can see where members of Congress stand.

Brauchler’s wish came true Tuesday when Vice President Mike Pence broke a tie on a procedural measure to allow debate on a new law that could end Obamacare. Two GOP senators— Susan Collins of Maine and Alaska’s Lisa Murkowski— voted no. And it came true again that evening with a failed vote on a comprehensive Obamacare replacement package that failed 43-57 with nine Republicans casting ‘no’ votes.

The July 25 votes were just the latest in a series of proposed health care laws since the election of President Donald Trump that were cobbled together quickly and in secret only to hit resistance from every Senate Democrat, as well as from Republicans on the far right and those who are more moderate.

Doug Robinson, an investment banker and political newcomer running for governor in Colorado, said he did not want to see members of the Senate come home for their August recess without passing a bill.

“I’m a guy who negotiated deals for a living … we used to lock people in the room and withhold food and say, ‘You will come up with a solution,’” he said, only half in jest. “We need to do something like that … They owe it to the American people to come up with not just a repeal, but a repeal and replace.”

For the past seven years, Republicans in Congress have taken symbolic votes to repeal a federal health care law that has grown roots in states both red and blue and brought more Americans onto the health insurance rolls largely by expanding Medicaid and mandating coverage with the threat of a fine.

Trump campaigned on scrapping the law and promised “something terrific.” Republicans running for Congress, too, have made repealing Obamacare a consistent rallying cry. In May, a plan to dismantle the law passed the U.S. House. In the Senate, similar proposals have hit snags. The nonpartisan Congressional Budget Office, which analyzes proposed laws, said the GOP health care plans would leave more than 30 million people without health insurance. Outside D.C., protests have raged in the districts of GOP U.S. senators, including in Colorado where U.S. Sen. Cory Gardner is one of 13 Republicans tasked with helping draft a bill. In June, nearly a dozen disability rights protesters were arrested in Gardner’s Denver office.

Two other Republicans running for governor, Larimer County Commissioner Lew Gaiter and retired banker Joanne Silva of Loveland, said they would like to see more outreach to Democrats to craft a bipartisan law.

“I think they should be involved in this process and I think if they were it would be easier to get something done,” Silva said.

Disabled Air Force veteran Greg Lopez, who has a background in financial planning, was president of the Denver Hispanic Chamber of Commerce and served as the mayor of Parker in the 1990s, said he hoped federal lawmakers would “modify” Obamacare. “I expect more leadership from both sides,” he said.

As a Trump supporter, Steve Barlock, Trump’s Colorado co-chair who is also running for governor, said the movement that elected Trump is not the same that earned many U.S. senators and congressmen their seats.

“What we need to do is have them realize that is a movement, that politics has changed in the last eight years on the Republican Party and they need to either conform to what the people want or get the hell out of office,” he said.

Colorado’s GOP candidates for governor offer their own solutions

Regardless of what happens in Washington, Republican candidates who want to replace term-limited Democratic Gov. John Hickenlooper say they should have more flexibility to deal with health care as a state.

They blast Colorado’s Obamacare exchange, Connect For Health, and they rip Obamacare every chance they get. Some are looking to red states as models and others to states more blue.

Victor Mitchell, 51, who lives in Castle Rock and made his millions founding companies, believes health insurance should largely be for specialty care and emergencies. “Somehow we’ve gotten it to, ‘Oh, insurance should cover everything,’” he says. As governor he would work to “immediately” pull out of Colorado’s Obamacare exchange.

An effort to repeal that state exchange failed in the last legislative session where Democrats control the House and Republicans control the Senate. Mitchell’s preference, he says, would be to work through the legislature to do it, “but it could be done without the legislative process,” he says. (The exchange was created through legislation and is overseen by a legislative committee.)

He wants more transparency in health care pricing and to use block grant money to create what he calls “young entrepreneur-nurse-practitioner-physician-assistants-type clinics” that could handle common procedures like mammograms and colonoscopies. He likes what he saw in southern Virginia, for instance, where he found an affordable clinic serving 25,000 patients a year on a $1.5 million budget without accepting Medicaid, Medicare, or private insurance. Instead the clinic takes in private donations, small block grants and negotiates directly with pharmaceutical companies for prescription drug vouchers.

“It’s very innovative,” Mitchell says. “There’s other clinics that are on a pay-for-service basis or a monthly subscription basis. We lack imagination, we lack creativity. There are options out there today that are working effectively.”

So as governor Mitchell would encourage the growth of such clinics by taking proposals and giving launch money and block grants. “You have to let the market figure this out,” he says.

Other candidates are looking elsewhere for models.

George Brauchler, who has gotten health insurance through the Army since he was on active duty, likes what the Republican governors of Wisconsin, Arizona and Kentucky have done. Wisconsin’s Scott Walker, for instance, asked the Trump administration for approval to drug test Medicaid recipients. Brauchler wouldn’t want to do it as a way to kick people off the insurance rolls, he says, but to as a vehicle to find out who needs state-funded help for rehabilitation.

“That’s the kind of thing I think we ought to be doing here and we ought to be looking at,” he says, adding that he likes the idea of work requirements for able-bodied residents on Medicaid, a plan GOP governor Matt Bevin in Kentucky wants to implement to control costs there. (Kentucky’s former governor, Democrat Steve Beshear, expanded Medicaid under Obamacare.) In Arizona, state officials under GOP Gov. Doug Ducey asked for federal approval to require able-bodied residents on Medicaid to either have a job or be looking for one if they want to stay enrolled. Brauchler believes such programs incentivize people to get “off the Medicaid dole.”

In Colorado he would also want to look at who is on the upper end of the income range of those on Medicaid here and find out what kind of costs and payments they could realistically pay for copays that’s higher than those on the lower end.

Brauchler, too, wants an alternative to Colorado’s health exchange, but acknowledged he would need buy-in from lawmakers.

Doug Robinson recently retired from his high-finance job to run for governor full time and gets insurance for his family through COBRA for about $1,800 per month with what he called a fairly high deductible. He fears at the rate he expects premiums to go up, he’ll eventually have to shell out up to $4,000 for his family of four.

Robinson is looking to a different state for ideas: Rhode Island. That state, which under a Republican governor in 2009 asked the George W. Bush administration for more leeway with its Medicaid program is now implementing it under a Democratic governor.

“A big expense in their Medicaid is older people that are in nursing homes,” Robinson says of The Ocean State. “And the average cost is six or seven thousand dollars a month for a nursing home. A lot of them would prefer to be in their home with a home-care solution. And that’s half that cost.”

In Rhode Island, nurses who are paid in part through Medicaid dollars provide in-home care to elderly Medicaid recipients who opt for that instead of a nursing home.

“That’s something that we could absolutely look at doing here in Colorado that I think could have a meaningful impact,” Robinson says.

Cheerleaders of the Rhode Island model have called it “classic conservatism: reduce federal rules, give states more autonomy and let them keep some of the savings.” But critics, like the Center on Budget and Policy Priorities, have called it a “‘sweetheart deal’ between the Bush Administration — in its final week of office — and the Republican governor of Rhode Island, in which the federal government effectively unloaded additional federal money on the state and gave Rhode Island federal funds beyond what it would receive under the regular Medicaid program, in return for the state accepting a cap on its Medicaid expenditures at an inflated level that it never expected to reach anyway.”

Robinson is also a fan of health savings accounts and incentives for healthy living. He would want to see about raising Medicaid copays for able-bodied adults without kids and perhaps charging them a monthly premium.

“Give it to Colorado, give it to the other states, and we’ll figure it out if the federal government can’t,” he says of his health care philosophy.

Colorado has received 11 different waivers from the feds already, which provide extra sets of benefits for Medicaid recipients here. And while there are some overarching themes that might be transferable among states the details might vary so much that it can be hard to compare them from state to state, says Marc Williams, spokesman for the Colorado Department of Health Care and Financing.

“There’s a saying in Medicaid,” Williams says. “If you’ve seen one Medicaid program— you’ve seen one Medicaid program.”

Steve Barlock is another candidate for governor who wants to see movement in Washington. He would be fine with a straight-up repeal of Obamacare without any replacement and he would “love” to repeal Colorado’s exchange.

As governor, he says, he would make sure the state’s health commissioner is an investigator. “He’s going to look into where this money is going,” says Barlock, who doesn’t believe the government is telling the truth about Colorado’s health care finances.

Colorado doesn’t technically have a health commissioner, but does have an insurance commissioner. The top bureaucrat who oversees Medicaid spending in Colorado is the director of the Department of Health Care Policy and Financing, who serves at the pleasure of the governor. That person is appointed by the governor, but needs confirmation by the state Senate.

“I believe the globalist outsiders are making money off of Colorado instead of keeping the taxpayers’ money in Colorado and working for them,” Barlock says. Barlock, who says a “globalist Republican is worse than a globalist Democrat,” isn’t looking at what other states have done— particularly not Massachusetts under Gov. Mitt Romney. (Republican rival Robinson is Romney’s nephew.)

Joanne Silva, however, likes what Romney did for the Bay State that inspired the individual mandate for the federal Affordable Care Act.

“I think other states could kind of take a look at what he did there and see if that’s something that they could use,” she says, adding she would even be open to a single-payer option “as long as it worked.”

For his part, Larimer County Commissioner Lew Gaiter stayed largely away from specifics when talking about health care policy. He likes some parts of Obamacare: No losing insurance for pre-existing conditions, for instance, and children being on their parents plans until they’re 25.

“I like some of those things that make it possible that people can get health care,” he says, while cost is an area that still needs more debate. He would work with the medical community to rein it in. He hasn’t been paying close enough attention to what other states are doing to say whether there might be something to emulate in Colorado. He said he wants to make sure there’s a “good, effective safety net for all the citizens of Colorado” and that everyone has adequate access.

Lopez says he is not looking to other states for potential models. What would set him apart in the broad field for governor on health care, he said, is that he wants to make sure those who need a safety net the most are taken care of and those who can afford health care have more choices to obtain it. He said he would execute such a task by talking with those in the health industry.

“They’re the ones that have the solutions,” he said. “They’re the ones who have true optics as to what’s going on.”

Their message to Cory Gardner

Colorado’s U.S. Sen. Cory Gardner has been held up as a “swing-state case study” for the Republican Party’s problems passing a health care bill in Congress.

Gardner is head of the National Republican Senatorial Campaign Committee, which means it is his job to help Republicans get elected to the U.S. Senate in 2018, and it makes him about as establishment Republican as establishment Republican gets in Washington. But he also represents Colorado, which went for Hillary Clinton for president by about five points. While other senators are up for reelection next year, Gardner will not face voters again until 2020.

In the past few weeks, Democratic Gov. John Hickenlooper has been lobbying Gardner to do what he can to ensure Americans don’t lose insurance coverage under federal health care legislation.

This week, as Senate Majority Leader Mitch McConnell of Kentucky signaled he wanted to hold a vote on some kind of health care law, Colorado’s GOP candidates for governor each had a message for Gardner. (Gardner voted for the procedural measure to begin debate.)

“I think that he should absolutely vote to repeal the ‘unaffordable’ care act at the earliest possible time,” says Mitchell. He added that “unfortunately we’ve had other people, other congressmen— and one fairly well known here in Aurora whose wife is the attorney general— who voted to keep the ‘unaffordable’ care act, which was just a disgraceful vote.” (Colorado’s attorney general is Cynthia Coffman, who is considering a run for governor.)

“I think we need to have a vote even if that vote turns out to be unsuccessful just so we can see where members of Congress are,” says Brauchler. “I don’t think anybody on either side of this issue can tolerate indecision and inaction.”

Robinson urged Gardner not to come home without movement on a bill.

“I know you want to get back to [Yuma] and see your family and so on,” Robinson says. “Have them come to Washington for August because we need a plan.”

Silva says slow down and try to get some Democrats on board. Gaiter hopes Gardner takes the time to read what’s in the bill.

“There’s so many Republicans that we call fence-walkers that are high-up business people that walk both sides of the fence,” Barlock says. “And I hope Cory does not listen to those people who side with Hickenlooper and the Republicans and who throw money both ways. And I hope Cory actually looks at what the people want and does that, and not [what] the powerful want.”

Photo by Pictures of Money for Creative Commons on Flickr.

BRECKENRIDGE — Against the backdrop of a ski slope as John Denver’s “Rocky Mountain High” played through a sound system, four top-tier Democratic candidates for governor met for the first time to make their pitch to voters.

For about an hour Sunday afternoon, former State Sen. Mike Johnston, Boulder Congressman Jared Polis, former State Treasurer Cary Kennedy and businessman Noel Ginsburg angled to set themselves apart on issues from healthcare to housing, transportation, education and water.

The Democrats of Summit County, there for their annual picnic in a park pavilion with burgers and beer, expected Democratic Lt. Gov. Donna Lynne would show up, too, but she didn’t. Lynne has filed paperwork to run but has yet to officially announce.

The four who attended make up the top tier of a Democratic field that recently grew larger with the offbeat entrance of Boulder-area media tech entrepreneur Erik Underwood, a former Republican who recently switched parties. Three lesser-known Democrats, Adam Garrity, Moses Humes, and Michael Schroeder, have also filed paperwork to run for governor. The race is shaping up to be an energetic — and expensive— Democratic primary, something Colorado has not seen in many years.

Among the 100 or so Democrats there to see the contenders, Polis drew institutional support as a five-term congressman with high name recognition. Others like Kennedy (”Mary?” one woman called her in an interview), Johnston (“Connelly” a different woman called him), and Ginsburg (“forgive me if I don’t know all the last names,” said a man), had to introduce themselves to voters for the first time.

Here’s what went down during their summit in Summit County where Democrats outnumber Republicans by about 1,000 out of 20,000 voters.

The doorstop pitches: How do they stand out in such a broad field?

Johnston, a former state senator who is a national figure in the education reform movement, styled himself as a bridge-builder who could bring people together in a divisive time. “Not just both sides of the Continental Divide,” he said, “but the urban and rural, the conservative and liberal, the newcomers and natives. It is going to take someone as governor who can not just pass policy but can build community.” He spoke of helping shape a Colorado that could be an oasis in a time of national disruption, a place, he said, where “everybody belongs, where everybody can prosper and where they know we can — even as the rest of the country falls into chaos — prove Colorado can always move differently.” After the events in Charlottesville, Virginia, he said, voters need someone who can “bind this state back together and bind this country back together, and that’s why I got in this race.”

Polis, who founded schools for homeless and immigrant youth and is co-chair of the LGBT Equality Caucus in Washington, is also an uber wealthy tech entrepreneur who will self-fund his race. He once spent $1 million in a successful bid for a seat on the state Board of Education and is one of the so-called Gang of Four who bankrolled an effort to turn Colorado’s legislature blue in 2004. Because of this and his near-decade in Congress, he didn’t have to introduce himself to the Democratic base. Instead he explained why he would bolt from the Beltway to try and become governor. “If we’re looking for progress from Washington it’s simply not going to happen,” he said. He talked up his proposals to power Colorado with 100 percent renewable energy by 2040 (Johnston promises the same plan), and implement universal statewide full-day preschool and kindergarten. He also pitched his plan for urging employers to share profits with employees, making it “the norm” in Colorado. “I always work on out-of-the-box ideas,” he said. He talked about his position in Congress as an infantryman on the front lines of the Trump resistance.

Kennedy, who was deputy mayor of Denver after serving as state treasurer, positioned herself as a leader in Colorado’s success story. She held up three fingers to signify her three-tiered agenda as governor: 1) Make public education the state’s first priority; 2) Be smart about managing tax dollars; 3) Work together to keep Colorado a place we all love. As treasurer, she said in an applause line likely to appeal to the Bernie Sanders vote, “I got your money — tax dollars — out of the Wall Street banks ahead of the crisis so you didn’t lose any money in the downturn. And I said No to the Wall Street bankers — the bad Wall Street deals, I said no every time.” And, she slammed Donald Trump harder than anyone, saying, he would set the country back 50 years on water and air quality, healthcare and human rights. “But we are not going to let Donald Trump take our state backwards,” Kennedy said.

Ginsburg, a first-time candidate and CEO of Denver-based Intertech Plastics, pitched his background as a businessman with practical ideas he said are realistic. He talked about his early job on a pickle assembly line at his dad’s manufacturing plant in Aurora. But, he said, “As we all know, just having a business background doesn’t qualify you for running for office.” So he explained how he helped found Colorado’s I Have a Dream Foundation where he said his work adopting 43 kids in a housing project to help them graduate — “We graduated 90 percent of our kids” — showed he can make a difference and planted the seed for his gubernatorial run. He worked with former Democratic Gov. Roy Romer to secure $20 million in federal funds for education, he said, and with current Gov. John Hickenlooper on a youth apprenticeship program.

What did they say about healthcare in Colorado’s mountain communities, which have some of the nation’s highest insurance costs?

“I believe in universal healthcare,” said Kennedy, “And we’re not there, but we’re going to get there.” Beyond that, she appealed to the Democrats in the crowd for the kind of activism that helped derail Trump-Ryan care in Congress. She stayed away from specifics, and said the solution is about addressing costs, not taking away health insurance.

“Nationally, I support Medicare for all,” said Polis. “Anything that gets us toward universal coverage I support.” Health insurance costs being so high in Colorado’s mountain towns, he said, is a “significant flaw” in Obamacare. Polis said he was frustrated with the Hickenlooper administration for not being more proactive about exorbitant health insurance rates in the mountains. As governor, he said, he would implement a statewide pricing zone to balance out costs. “I don’t need any legislation to do it,” he said.

Johnston pointed out how insurance companies would love to have a contract with the state to cover state employees. So, he said, if they want that contract they would have to “serve all the people of the state of Colorado.” The problem with high costs in the mountains, he added, is because of an insurance carrier monopoly that shouldn’t exist. He said insurers should set the same prices throughout the state. “The state can require that for anybody who wants to do business with the state,” he said. ”That’s what I would require as governor.”

“There is no question we need healthcare for all,” said Ginsburg. He would start by increasing transparency in the healthcare marketplace. He said he would make sure lobbyists don’t dictate policy.

Water, water — nowhere?

In a state where water needs are projected to exceed supply by 2050, how to handle often competing water issues is a challenge the next governor better be ready to address. Current Gov. Hickenlooper created the first-ever state water plan, but questions swirl about its efficacy and cost — projections have already doubled from $20 billion to $40 billion in less than two years. Yeah, that’s billion with a ‘B.’

In Breckenridge on Aug. 20, Polis name-checked the statewide water plan and said if he becomes governor he would have a “2.0 version” of it, but he didn’t get into specifics. “We do need a statewide approach,” he said, adding that while water woes can be parochial issues, “It’s a role of a governor to be referee in all of this” and to be an advocate for making sure that, statewide, Coloradans’ water needs are met.

Kennedy said the solution is not to take more water out of rivers. Or dry up more farmland. But she didn’t say what, alternatively, the solution is. “We’re going to have to be more innovative,” she said, and to make investments. She used the opportunity to explain how her background could lead her to fix the problem. “The state water plan has a $20 to $40 billion price tag,” she said. “It is going to take a governor who understands finance and financing infrastructure as I do to lead on this issue to make sure that we can fund the water plan.”

For his part, Ginsburg was the only one to say said he actually met with those who drafted Hickenlooper’s statewide water plan. And it’s a good plan, he added. But “like anything, we have to revisit (it) year after year.” He said he would listen to local communities about how to address the issue.

Johnston noted that 85 percent of the state’s water goes to agriculture, which is great because we rely on food from farmers. But those farmers, he said, have a “profound disincentive” to conserve the water they use on their fields. He said he spoke recently with a Palisade peach farmer who confirmed it. What the state should do, he said, is give farmers incentives to conserve water and be more efficient by creating a market in which they can buy, sell, lease and trade water conservation credits.

No candidate explained how they might find or generate revenue to help pay for the state’s part of the water plan’s projected cost.

Affordable housing in resort towns is elusive. What can be done about it?

Look at the newspaper front pages across Colorado on any given week and there are stories about affordable housing issues from Denver to Fort Collins, Aspen to Steamboat Springs. It is fair to say the state of Colorado has an affordable housing crisis.

In mid-February, residents of Steamboat Springs arrived at 3 a.m. for a chance to live in one of 48 affordable housing units they hoped would open by spring. Denver has a lottery each year, and approved its first affordable housing fund in 2016. But it’s so bad service providers are handing out talking point guides that break the bad news to those hoping for affordable housing. In order to keep good teachers, some school districts in Colorado are becoming developers and landlords. In Vail, there is a movement afoot to create a tiny home village where teachers can afford to live. It’s so bad that in Summit County, where the candidates were speaking, a housing director candidate in April turned down the job because— you guessed it— he couldn’t find an affordable place to live.

So, what to do about it?

Polis said communities are strongest when teachers and police officers can actually afford to live in them, not miles away where housing is less expensive. He touted his work in Congress to find a plot of federal land in Summit County to convert into a 300-unit affordable housing complex, which he called an out-of-the-box approach. The next governor, he said, should incorporate transit planning into the cost of housing. “When we have savings by pulling people off the road who would otherwise have to live further away let’s recapture some of that savings for lower-cost housing near where people work,” Polis said.

Kennedy talked about her time as the chief financial officer of Denver when the city created the first dedicated funds ever to support affordable housing construction. Colorado is one of the only states in the country that doesn’t have dedicated funds for that, she said, adding, “When I’m governor, that will be a priority of mine.”

Ginsburg said there is no silver bullet. But as governor he would create a state office and hire someone who is responsible for planning across the state. He said he would “develop a statewide vision” to support decisions made at the local level and provide opportunities and training so people who grow up in communities can stay there. “As governor,” he said, “I will help to make sure that that happens.”

Johnston told a personal story about friends and family who are increasingly moving east from where he grew up in the Vail area because they’re getting priced out. As a state senator, he said, he worked to fund affordable housing. But that fund is dry. “So we’re going to have to first make changes to TABOR,” he said, referring to Colorado’s 1992 revenue-limiting Taxpayer’s Bill of Rights constitutional amendment. Also, Colorado should find a better way to use an asset it already has. “We do not have cash. What the state does have is land,” he said, adding that one sixteenth of every section of the state was set aside during statehood to create land grant institutions. “Those are now opportunities for us to partner with developers” so teachers can live where they work, he said.

**Forget political gridlock. What about our congested roads?**

Kennedy didn’t offer specifics on how she would tackle congestion, deteriorating roads and highways, and other Colorado transportation woes, but she called those problems unacceptable. The next governor, she said, needs to think 50 years down the road when it comes to solutions.

Ginsburg called transportation issues one of Colorado’s biggest problems, and he blamed TABOR for causing them, calling the voter-approved 1992 constitutional amendment the elephant in the room. “Since it was founded, we’ve taken $2 billion and put it back into our pockets in the form of small checks,” he said. “That could have gone to infrastructure.” He said it is the job of a governor to make the case to voters about why transportation issues are so important to the state that they should vote to change TABOR as well as the property-tax-limiting 1982 Gallagher Amendment in ways that generate more revenue.

Johnston, too, said he would make the case to voters to pass a statewide ballot measure to make changes to TABOR to generate more funds for transportation.

For Polis, he said solving the state’s transportation troubles can be done by forming what he calls winning coalitions. He said as governor he would create policy that has local buy-in from communities and then “sell it to people.” He said he would bring together the business community, Republican and Democratic mayors and county commissioners, and talk about “the important need for infrastructure as a key part of our quality of life and our future.” Polis also said high-speed internet should be in the discussion when talking about transportation because more people can telecommute and work from home to stay off the roads.

How did the candidates come off to the crowd?

Bob Berry, a retied attorney in Dillon, expects he will vote in the Democratic primary for governor, but didn’t know much about who is running to replace Hickenlooper, whom he respects for what he sees as having a bipartisan, technocratic approach.

While sipping a beer behind sunglasses after the event, Berry said it’s still too early to pick a horse. But he offered his take on what he saw and how it might inform his decision.

“I was most impressed with Mike Johnston,” Berry said. “I liked his answers the most. He spoke to … trying to bring people together, and had, I felt, some of the most practical answers.” Berry said he also appreciates Ginsburg’s business background.

“Jared Polis, I’m sure he’s very qualified,” Berry said. “[But] nothing really stuck out to me in what he had to say. And Cary, to be perfectly honest, she came across as too much of a politician. They’re all politicians, but her answers were just too rehearsed.”

Aimee Airey, a local mortgage broker, said she’s always been a big fan of Polis, but Johnston impressed her at the forum. For her, the biggest issue is how the next governor will tackle local affordable housing, and healthcare. “I think Jared Polis had the best answer for healthcare,” she said. “He’s already got a plan in mind that he says he doesn’t even need legislation to push through.” On housing, she likes what Johnston had to say. She plans to follow the candidates and their stances more closely as the primary race continues, but said, “Most likely it’s going to be Jared Polis because he’s been our man for a while.”

Alice Berieg, a retired CPA, found all the candidates impressive, but she’ll have to go home and research them more. For her, a high-speed train to the mountains is a top issue, as is lowering the cost of college tuition.

Sporting a “Make America Gay Again” ballcap, Kelsey Berkley grew up in Summit County and recently moved back from Kansas City. She left Denver after a hard time finding affordable housing. She’s been following Polis but is keeping an open mind. She hadn’t heard of Kennedy until Sunday, though, and “honestly,” she said, “her enthusiasm and knowledge about everything grasped my attention.”

Sandi Bruns, an artist from Frisco, said she came to the picnic because she heard all the Democratic gubernatorial candidates are “excellent.” But there are so many, she can’t keep them straight. She said she “loves” Polis because he’s always been responsive as her congressman. “He’s not wishy washy,” she said. “He steps forward for what he believes in, which is what I believe in.”

For Bruns, she wants a candidate who will stand up to what she called “the racist, horrible, misogynist Republicans who want to destroy the arts, our education system, our ecological system.” She said she’s “delighted” no one has yet “gone out and shot Donald Trump” because that’s not what we do in this country. “I think we do it through real process, and that’s what’s important about our democracy,” she said.

“The Democrats,” she said, “have the right message, they just need to know how to tell it.”

*CORRECTION: A previous version of this story said Kennedy was the only candidate to hold statewide office. Jared Polis previously served on the state board education.

Photos by Corey Hutchins

This story, written by Colorado Independent editor Susan Greene, was first published in 2012 by the Dart Society (now the Ochberg Society) an international group of journalists who cover trauma. The state of Colorado since has cut down on its use of solitary confinement significantly. Still, some state prisoners – as well prisoners in county jails and the entire prison population at the federal ADX Supermax in Florence – remain in various forms of long-term isolation, as do prisoners in many other states. Susan will be honored for this story, among other work, by the ACLU of Colorado at its annual civil rights dinner on September 28.

A few weeks ago, on the fifteenth anniversary of his first day in prison, Osiel Rodriguez set about cleaning the 87 square feet he inhabits at ADX, a federal mass isolation facility in Colorado.

“I got it in my head to destroy all my photographs,” he writes in a letter to me. “I spent some five hours ripping each one to pieces. No one was safe. I did not save one of my mother, father, sisters. Who are those people anyway?”

Such is the logic of the gray box, of sitting year after year in solitude.

Whether Rodriguez had psychological problems when he robbed a bank, burglarized a pawn shop and stole some guns at age 22, or whether mental illness set in during the eight years he has spent in seclusion since trying to walk out of a federal penitentiary in Florida – it’s academic. What’s true now is that he’s sick, literally, of being alone, as are scores of other prisoners in extreme isolation.

Among the misperceptions about solitary confinement is that it’s used only on the most violent inmates, and only for a few weeks or months. In fact, an estimated 80,000 Americans — many with no record of violence either inside or outside prison — are living in seclusion. They stay there for years, even decades. What this means, generally, is 23 hours a day in a cell the size of two queen-sized mattresses, with a single hour in an exercise cage, also alone. Some prisoners aren’t allowed visits or phone calls. Some have no TV or radio. Some never lay eyes on each other. And some go years without fresh air or sunlight.

Solitary is a place where the slightest details can mean the world. Things like whether you can see a patch of grass or only sky outside your window – if you’re lucky enough to have a window. Or whether the guy who occupies cells before you in rotation has a habit of smearing feces on the wall. Are the lights on 24/7? Is there a clock or calendar to mark time? If you scream, could anyone hear you?

In the warp of time and space where Rodriguez lives, the system not only has stripped him of any real human contact, but also made it unbearable to be reminded of a reality that has become all too unreal. It’s ripping him apart.

“Looking at photos of the free world caused me so much pain that I just couldn’t do it any more,” writes Rodriguez, 36. “Time and these conditions are breaking me down.”

This is what our prisons are doing to people in the name of safety. This is how deeply we’re burying them.

* * *

I got my first letter from solitary in 2008 while working as a newspaper columnist in Colorado. Mark Jordan — then at ADX on convictions for bank robbery and a prison murder – wrote asking me to cover a trial in which he’d be arguing for access to reading materials that seemed a reasonable way to cope inside a concrete box. The Federal Bureau of Prisons had banned, for instance, D.H. Lawrence’s Sons and Lovers and Anaïs Nin’s books, which Jordan had already ordered. Officers in the mailroom wouldn’t pass along his issues of The New Yorker, either, because some of the cartoons depict nude figures.

Intrigued, I went to hear Jordan represent himself in federal court by a live video feed from prison. Though he was shackled as he made his case, his arguments were as skilled as those of the most seasoned trial attorneys I had seen. He lost.

Solitary confinement slipped from my mind after I covered Jordan’s case and moved on to my next deadline. But the subject became a preoccupation months later while I was hospitalized for septic pneumonia, with an “ISOLATION” sign outside my door. Partly it was the stale air in my hospital room and the view of a brick wall out my window. Partly it was the anxiety of losing my autonomy and voice. I’d lie there pressing a buzzer to get a glass of water or to have my tubes unhooked so I could get out of bed, and nobody would answer. I’d buzz and buzz again, complaining bitterly once nurses finally showed up. I’d see them roll their eyes and hear them dissing me in the hallway. Being sick wasn’t as bad as being stuck. I remember thinking about Jordan and wondering how people who were imprisoned in solitary were able to survive it. It occurred to me then that isolation – the non-medical, punitive, indefinite kind – could crack you in about a week. Powerlessness is its own centrifugal force.

* * *

Plenty of corrections officers might tell you that offenders doing time in solitary don’t deserve the roofs over their heads or the meals shoved through their food slots. To be sure, many of these prisoners have done heinous, unforgivable things for which we lock them up tightly. Just how tightly is no small question. Yet, as a matter of public policy, the question hardly comes up. Compared to how much we as a nation have debated capital punishment, a sentence served by a small fraction of the incarcerated, we barely discuss how severely we’re willing to punish nearly everyone else.

“When the door is locked against the prisoner, we do not think about what is behind it,” Supreme Court Associate Justice Anthony Kennedy once said.

Solitary confinement started in the U.S. as a morally progressive social experiment in the 1820s by Quakers who wanted lawmakers to replace mutilations, amputations and the death penalty with rehabilitation. The hope was that long periods of introspection would help criminals repent.

After touring a Pennsylvania prison in the 1840s, Charles Dickens described prolonged isolation as a “slow and daily tampering with the mysteries of the brain immeasurably worse than any torture of the body.” He also wrote, “There is a depth of terrible endurance in it which none but the sufferers themselves can fathom.”

Some of his contemporaries shared that view. “It devours the victims incessantly and unmercifully,” Alexis de Tocqueville reported from a prison in New York in the 1820s. “It does not reform, it kills.”

Most prisons suspended the practice in the mid- to late-1800s once it became clear the theory didn’t work. The U.S. Supreme Court punctuated that point in 1890 when it freed a Colorado man who had been sentenced to death for killing his wife, recognizing the psychological harm isolation had caused him.

“This matter of solitary confinement is not … a mere unimportant regulation as to the safe-keeping of the prisoner,” the court ruled in the case of James Medley. “A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”

Solitary confinement was largely unused for about a century until October 1983 when, in separate incidents, inmates killed two guards in one day at the U.S. Penitentiary in Marion, Ill., which had replaced Alcatraz as home to the most dangerous federal convicts. The prison went into lockdown for the next 23 years, setting the model for dozens of state and federal supermaxes – prisons designed specifically for mass isolation — that since have been built in the name of officer safety. “Never again,” promised Reagan-era shock doctrinarians who set out at great cost to crack down on prison violence.

“Whole prisons have been built, people have gotten funding for supermax facilities based on the act of a single (inmate),” says Michael Randle, former director of the Illinois Department of Corrections.

Administered by corrections officials, not judges, solitary confinement is a punishment beyond incarceration, removing prisoners not only from the rest of society, but also from each other and staff. It’s now practiced routinely in federal penitentiaries, state prisons and local jails under a number of bureaucratic labels: “lockdown,” “protective custody,” “strip cells,” “control units,” “security housing units,” “special management units” and “administrative segregation.” Federal justice officials say the different classifications prevent them from keeping track of how many people are being isolated. What is acknowledged even in official records is that the vast majority are men and that rates of pre-existing mental illness exceed the higher-than-average levels in general prison populations.

Prisoners who have assaulted staff often get sent straight to solitary. Those who have killed other inmates or escaped from prison — or attempted to — also take priority. Corrections officials eager to please officers’ unions and weary of public criticism tend to place difficult prisoners in solitary as an easy default.

“These become career decisions that administrators have to struggle with, knowing if a person does kill again, that you basically will get massacred in the media, massacred by the opposition, massacred by your governor’s party,” Randle says. “These are determinations that can make or break your career.”

Meantime, an analysis of prison budgets by the Urban Institute shows that taxpayers are shelling out about $75,000 a year to house a single prisoner in solitary confinement – more than twice as much as spent housing prisoners in general population. Staffing is more expensive because two or more officers usually are required to escort prisoners any time they leave their cells, and because the cooking and cleaning work, which in other prisons would be performed by inmates, must be done by paid staff. As a rule, prisoners in isolation aren’t allowed to work.

For reasons of prison safety, short periods of confinement may make sense for the most violent inmates. Yet the so-called “worst of the worst” are, by definition, the exception rather than the rule. States vastly overestimated the need for supermax space to contain high-risk offenders, and have filled it with relatively low-risk prisoners, many of whom pose no apparent risk or have no record of violence. Anyone even loosely labeled to have ties with terrorists gets put into isolation as a matter of course. Juveniles are secluded for what is officially deemed to be their own protection. Mentally ill prisoners who are prone to rage or agitation are isolated for convenience. And, all too often, having a gang affiliation, writing grievances or cussing out a guard can land you in solitary for the long haul. Bad behavior – or merely a corrections officer’s allegation of it – can add years to your time in isolation. Some prisoners have spent a decade or two asking why they’re still there, without getting an official answer.

“These are extraordinary, I believe often needless and indefensible, risks to take with the human psyche and spirit,” writes Craig Haney, a psychology professor at the University of California at Santa Cruz.

Anthony Gay had a low-level assault charge in Illinois for punching another kid, stealing a dollar from him and swiping his hat. A parole violation on his seven-year suspended sentence ultimately landed him in a state supermax where he has cut himself hundreds of times with shards of glass and metal, and eats his own flesh. He has racked up a 97-year sentence for throwing urine and feces out his food slot – behavior that’s fairly typical for severely mentally ill prisoners in solitary.

Gay passes his time at the Tamms Correctional Center writing anyone who will receive his letters.

“I’ve been trapped for approximately nine years. The trap, like a fly on sticky paper, aggravates and agitates me,” he writes. “America, can you hear me? I love you America, but if you love me, please speak out and stand up against solitary confinement.”

* * *

In months of trading letters with prisoners, and in a few dozen interviews with men who’ve gotten out, I hear the same descriptions of solitary: that it’s starkly sterile, unremittingly monotonous and numbingly idle.

“Ninety percent of the time you hear nothing but the sound of air from the ventilation. The silence can drive you crazy. Makes you feel as if the world has ended but you somehow survived and are tripped,” Jeremy Pinson writes from ADX, the crown jewel of the federal system once described by its warden as a “clean version of hell.”

“The world outside is like another planet,” writes Jack Powers, also from ADX. “I feel like I am trapped within a disease.”

Prisoners pace their cells like caged felines at a zoo.

“I walked and walked and walked some more,” says Darrell Cannon, who did nine years in solitary in Illinois. “I’d walk in circles – always to the left, for some reason – for six, maybe seven hours a day.”

Almost everyone in isolation spends at least some time counting. They count the steps they take, the cinder blocks on the walls, the tiles on the ceiling, their sneezes and coughs, and how many times the furnace kicks in or the plumbing sloshes.

“If I remember correctly, there are 412 holes in (the cell door). I would count them daily,” Joe Sorrentino, now serving time in a general population prison, recalls of his cell at Tamms. “At the back of the cell, close to the ceiling there’s a window approx. 30 inches long and 10 inches high with a square bar going through the middle …. My window faced the tunnel, so my view for my first seven years there were of a blue wall. For years, I wondered what other guys could see out their windows.”

Some prisoners pass their time praying, meditating or talking to themselves. Some read voraciously, though often they’re limited to only a few books a month. Some take whatever enrichment classes are broadcast over their TVs. The Bureau of Prisons has offered courses on Hitler, Sparta, Animals of the World, Legends of the Silver Screen and Robert E. Lee and his High Command.

Out of limited supplies, prisoners create art. They lodge bits of sponges into ballpoint cartridges to make paintbrushes. For paint, they mix water with Nescafe grinds or dye from candy they can buy from the commissary. M&Ms – plain, not peanut – work best. For deep reds, they fold red dye in with ground powder from vitamins. Navy blue takes a three-step process mixing royal blue candy coating with blue and black ink from pens. The color purple is best achieved from Skittles.

Prisoners strike up relationships with the critters that crawl in through their air vents. One man used his own hairs to try to repair a moth’s injured wing in hopes of facilitating its escape. Mohammed Saleh — convicted of having co-conspired in the 1993 World Trade Center bombing — lost his daily hour of outdoor recreation for three months at ADX because he saved bread crumbs to feed blackbirds in his exercise pen.

Defiance can kill time in solitary. Some prisoners kick the walls or bang their cups against their doors. Some flood their cells by clogging their toilets with toilet paper, or break light bulbs and set their mattresses on fire. Some write up their grievances; some sue over them; and some sue some more on behalf of guys on their units. Those feeling especially resistant stop eating or drinking. Brian Nelson starved himself regularly at Tamms, where he spent 12 years in seclusion. He once refused food and water for 40 days, he says, to try to prod the prison to treat a guy on his unit for cancer.

“(Fasts) become addicting…. You feel clean, but it’s also your body eating your body,” says Nelson. “My last hunger strike, I was on a gurney and there was no vital signs, and I went into shock.”

A hunger strike by 5,000 prisoners last fall shed light on solitary confinement conditions at California’s Pelican Bay State Prison. The strike ended when the state agreed to consider letting prisoners make phone calls and buy calendars. Months later, no substantive changes have been made on those modest demands. There have been reports that strike leaders have faced disciplinary action and that three strikers have committed suicide.

* * *

Many of us flirt with isolation. We tune out in all sorts of ways – cranking up our headphones or holing up in little rooms to write. From “Walden” to “Into the Wild,” generations have idealized solitude, wondering how long we could last on our own. Fox Reality Channel’s show “Solitary” kept contestants in voluntary round-the-clock confinement competing for $50,000 in prize money. The goal was to be the last player to quit by hitting the panic button. Boredom.com, a video game maker, has virtualized lockdown with “Escape 3D: The Jail.” You can feign confinement in the comfort of your home or office, or, thanks to a handy smart phone app, idle in solitary on the subway or in line at the DMV.

Still, we know from all manner of solo expeditions, behavioral tests, biological experiments and psychological studies that we’re not wired to be alone. Early in the space age, cosmonauts training to fly Soviet rockets were put into isolation chambers without any way of knowing how much time was ticking by. Some gave up within hours. One, Andrian Nikolayev, earned hero status and the nickname “Iron Man” after setting a four-day record before pressing a buzzer to be released.

The human brain needs social contact like our lungs need air. Social needs are so basic that they drive family structures, religions, urban design, governments, economies and legal systems worldwide. We honor these needs even with pets and zoo animals, generally acknowledging the inhumanity of caging them for long periods of time alone or in tight spaces. New federal guidelines on the use of laboratory animals require relatively more space, sensory stimulation and environmental enrichment than we afford people in confinement. The revised rules put forth by the National Academy of Sciences call for significantly more square footage to house a head of cattle, for example, than prisons provide in solitary.

Convicts in the U.S. are not afforded such concern. We push some of them into seclusion with little to no programmatic support, basically giving up on them.

“Anyone who spends more than three years in a place like this is ruined for life,” Powers writes. “Two or three hundred years from now people will look back on this lockdown mania like we look back on the burning of witches.”

In 2006, a bipartisan national task force convened by the Vera Institute for Justice called for ending solitary confinement beyond periods of about ten days. The report by the Commission on Safety and Abuse in American Prisons found practically no benefits from supermax conditions either for prisoners or the public. It cited studies showing that solitary confinement impairs brain function and can cause psychosis and serious depression. It also cited a number of reports showing that long-term isolation doesn’t curb prison violence and makes it highly likely that prisoners will commit more crimes when released.

The United Nations Special Rapporteur on Torture, Juan Mendez, is calling to end the use of isolation on juveniles and the mentally ill. For everyone else, he is pushing a worldwide limit of 15 days. Mendez personally endured three days in solitary under the rule of a junta in Argentina – an experience he describes as “the darkest days of my life.” So far, he has been unable to gain access to investigate state and federal prisons in the U.S.

“Let’s just say it has been a challenge,” he says.

U.S. courts have rejected most 8th Amendment claims against isolation, ruling that some psychological harm to certain prisoners doesn’t make the entire practice cruel or unusual. In many cases, corrections officials have persuaded judges that isolation is a misnomer because prisoners glean brief interactions with guards – exchanges that are at best perfunctory and at worst hostile, degrading and cruel. They’ll also argue that prisoners shouting to each other between cellblocks, across exercise cages or down drainpipes constitute meaningful forms of social interaction.

* * *

For every hunger striker, jailhouse lawyer and cellblock arsonist, there are many more people in solitary who’ve folded up quietly into themselves.

“I became increasingly withdrawn at ADX to the point where the only people I interacted with were the television characters on ‘Seinfeld.’ I watched ‘Seinfeld’ four times a day. Jerry, Elaine, George and Kramer became my best friends. I felt like part of their family. They were the only friends I had,” Anthony McBayne wrote in a legal declaration.

Some prisoners say they forget what day, month or year it is, partly because keeping track can be too painful.

“Time is the enemy, a constant reminder that your life is being wasted and there is no redemptive solution. Paying close attention to time will in short order drive you to misery and despair at what you’ve lost,” Jeremy Pinson writes.

Concentration wanes, revenge fantasies fester and voices echo in people’s heads. Idiosyncrasies grow into obsessions about the tiniest details of physical space. Prisoner after prisoner writes of becoming enraged by slight noises or tweaks in their routines.

Some describe losing their senses of self, physically and emotionally. Mirrors, if available, are stainless steel plates that reflect only blurs. You can go years without an accurate picture of your own aging. Basic biographical facts – your age, your birthday – can get lost in a fog.

“This is difficult to explain, but my memories were no longer mine,” Mark Jordan writes of his years at ADX. “I questioned whether or not I really had a past or history at all, whether the memories were real or false…. It was as though none of it was real. I was born into this life of isolation and the memories not memories at all. Confabulations.”

We in the free world know who we are by interacting with each other. We make sense of ourselves largely through our relationships. Legal sociologist Joan Martel described the loss of identity in isolation. “To be,” she writes, “one has to be somewhere.” Without normal grounding in space or time, isolated prisoners lose their understanding of themselves and their own histories.

“After 14 years, those people are strangers to me; as I must be to them,” Osiel Rodriguez wrote about the family members whose portraits he destroyed. “My parents will be dust if/when I ever get out of prison. My three sisters will be in their mid-70’s to late 60’s. So what was I doing holding on to photos of moments I was not a part of, or know nothing about?”

In his mind, Stephen Slevin spent two months in solitary confinement after being arrested on a drunk driving charge and booked into New Mexico’s Doña Ana County Detention Center. In real time, it was 20 months before the charge was dropped and, ungroomed and delusional, he was released. Those 18 months are still missing somewhere inside him, he now says. Yesterday, a jury awarded him $22 million in damages associated with his time in solitary.

* * *

Covering solitary is an exercise in inaccessibility.

Reporters’ visits and phone calls are out of the question.

State and county prisoners usually can be glimpsed only by their mug shots. The federal system makes no photos available of the people it locks up or the spaces they inhabit.

Family members can pass along information – if a prisoner chooses not to shield them from what isolation is really like.

“My philosophy is, I don’t care if you have a knife stuck in your back, you tell your mom that you’re okay,” Sorrentino writes. “Seeing how they looked at me on visits, handcuffed, shackled, chained to the floor and behind glass, killed me inside.”

Prison officials don’t help much with transparency or public accountability. They cite pending lawsuits and security risks for refusing to be interviewed. They have scoffed when I’ve asked if they’d consider passing a disposable camera or hand-held recorder to a man who hasn’t been seen or heard from in years. (“What do you think we are — bellhops at the Hyatt Regency?”) Officers are dispatched to berate journalists, even off grounds, for aiming lenses toward their prisons.

“The inmates housed at the ADX pose the greatest threat within the Federal Bureau of Prisons to staff, other inmates, visitors, and the public, and may be extreme escape risks,” Warden Blake R. Davis wrote to me. “Accordingly, permitting a film crew to take video footage of the exterior of the institution would negatively affect the security and orderly operation of the facility.”

Years ago, while assigned to cover Area 51 in Nevada, I had better access to a federal airbase that didn’t officially exist.

* * *

Letters from isolation are always handwritten (supermaxes don’t provide access to computers, which some long-timers have never even used). They arrive on government-issue loose-leaf paper in government-issue white envelopes, often quilted with 1-cent and 5-cent postage stamps bartered somehow between cells.

Some – especially those from prisons allowing showers only once a week — come smelling like confinement.

Certain prisoners struggle with their writing.

“Miz Greene. Weyre traped. Police help us,” reads one letter, start to finish, from a man named Paz at Pelican Bay.

Others write so well that it hurts.

“I miss being around people. I miss being able to run on the track or walk on grass or feel the sun on my face,” reads one of Jack Powers’ letters. “One time I kept a single green leaf alive for a few weeks. And one time I had grasshopper for a pet. And one time I made a dwarf tree out of yarn from a green winter hat, paper and dried tea bags. I made a guitar out of milk cartons, and it played quite well. I invented a perfect family – mom, dad and sister – so that we could interact and love one another. One time I wanted to take a bath, so I got into a garbage bag and put water in it and sat there. For a while I made vases out of toilet paper and soap and ink from a pen. I have done a thousand and one things to replicate ordinary life, but these too are now gone.”

From solitary, I’ve received marriage proposals, tomes of legal documents and a Christmas card crafted out of a Wortz Cheese Crackers box. One man mailed three weeks’ worth of daily manifestos about Yahweh. People in confinement have criticized me for my grammar and syntax, cursed me for not writing more often and advised me to go lock myself in my bathroom to deepen my understanding of their plight.

Some letters are angry rants. Others are full of longing.

A prisoner in Virginia wrote 16 pages on behalf of the guy howling night and day in a cell down the hall, never once using the word “I.” Another in Illinois wrote a regretful 22-page essay about the man he had killed half a lifetime ago, imagining what might have happened to them each if he hadn’t pulled the trigger.

From the cutters, I’ve been given step-by-step accounts of their attempts to feel something, anything, in the tedium. Anthony Gay seems to want me and all of America to understand exactly how he’s hurting himself.

“When my anxiety becomes overwhelming … I’ll pull out my cutting instrument, pull off my boxer shorts, sit on my toilet and cut a gash in my thigh,” Gay writes. “If I happen to become extremely anxious, I’ll slice my penis like a hot dog or my testicle like a tomato.”

A man who tried to hang himself in his cell asked for my help reimbursing the state of Illinois $56 for a torn bed sheet. Attempted suicide in solitary often is treated as a disciplinary problem.

“When I’m put on a suicide watch, I’m all alone and stripped naked and may see a mental health staff for 3-4 minutes a day. So I wonder dam how is this pose to help me. It don’t,” Bobby Boyd writes from Tamms.

Some prisoners recognize their mental health problems. Others write around them.

More often than I’ll ever know, my letters haven’t reached the men I’ve mailed them to. Some have come back to me marked that they were rejected by prisoners I’m sure didn’t reject them. Even more often, their letters to me don’t make it past the mailroom.

Between the lines of the ones that do, most letters from solitary say the same thing: That we’re all higher than the lowest things we’ve ever done. For most of the so-called “worst of the worst” who bother writing, there seems to be at least some capacity for redemption.

* * *

It’s no small thing to ask someone who has spent years without social contact to sit and tell his story. I learned this waiting at a Kmart café in Denver, a donut shop in Chicago and Union Station in Washington, D.C., for men who had recently been released but didn’t show up for interviews as they agreed. Saying no — or that they were scared to leave home or just not up to talking — apparently didn’t seem like an option.

Some who did show up had trouble shaking my hand or looking me in the eye or crying in front of me.

“I’m gonna push through my nerves, see, because I’ve been waiting like 20-something years to say all this,” Vincente Rodriguez told me when we met in his living room in Chicago.

Rodriguez’s seven months in the free world haven’t been easy. Like lots of guys, he curls up in a corner of his apartment, blinds drawn, alone. He says he likes it that way, and it worries him.

Robert Felton retreats to his bedroom in Danville, Ill. His wife and young kids wonder why he won’t hang out or cuddle in front of the TV. He can’t bring himself to tell them that he now finds such closeness intolerable.

These are the guys next door, the men refereeing your kids’ basketball games, the hothead in line at the Conoco who freaks when someone brushes against him.

In the 18 months Brian Nelson has been out of solitary, he has found a job, a girlfriend and a car. He drives when he’s anxious, and is anxious often. Nelson curses himself when he loses his way on the streets of Chicago, the city he knew well until age 17 when a murder conviction landed him a 28-year sentence.

“I’m here, but I’m not here, if that makes any sense,” he says from behind the wheel of his Jeep Compass, disoriented on the South Side. “People ask me what hurts. I say the box, the gray box. I can feel those walls and I can taste them every day of my life. I’m still there, really. And I’m not sure when I’m ever gonna get out.”

Nelson — whose lawsuits from isolation improved conditions for prisoners in Illinois — works in a law office as an advocate for prisoners he left behind in confinement. Compared to other guys who’ve been released, he is doing well. Yet he’s flailing. He’s facing a DUI charge while on parole. He recently gave himself a black eye. The experience of being interviewed on camera sent him back into a box emotionally for weeks.

Anthony McBayne, the “Seinfeld” fan, realized after his release from prison that he’d never recover from his years in solitary. Once faced with social situations, he says he would speak so fast that he’d stutter. He came to avoid people and wouldn’t look at them.

“Later on, when I did look, it was only to read their lips, as it’s how I remember to ‘hear’ from when prisoners would talk through the thick glass at ADX when one prisoner was in a rec cage and I was in my cell,” reads his legal declaration. “I found myself doing this all the time after my release and it became so annoying that I had to lie and tell people that I was deaf and needed to read lips to hear.”

McBayne robbed a bank after his release. He’s now doing time at U.S. Penitentiary Big Sandy in Kentucky.

Joe Sorrentino, who is serving life on a murder conviction, remembers passing time in Tamms by drawing blueprints of a house he’ll never be able to build. All his designs included secret passages and hidden rooms where he could go to be alone. He has since been transferred out of solitary into a general population prison in Stateville.

“I have a huge sense of guilt for not being at Tamms,” he writes. “I feel completely empty and purposeless now. Plus, I hate being around people, period. I have a good cellmate, but I can’t stand being this close to another human being. I get frustrated very easily and the littlest things irk me. When I first arrived here, I attempted to make contact with mental health to try to get a one-man cell. She basically told me to ‘get over it,’ then asked if I wanted medication – which I don’t want. What I really want, deep inside, is to go back.”

* * *

Some words are uncomfortable to write.

“Trauma” is one of them, especially when used about people who have traumatized others. “Torture” is another. In the moral balance of crime and punishment, the word risks discounting the suffering convicts have brought their own victims.

Nothing is black and white in a gray box. Lines can blur between the good guys and the bad ones. It’s far easier to label the secret police in some foreign dictatorship as torturers than to lob the word at prison guards in the next county.

It isn’t news that solitary confinement hurts people. Dickens, de Tocqueville and the Supreme Court — they all knew it generations ago. But our memory is disturbingly short. What’s considered cruel and unusual under the 8th Amendment pivots on the “evolving standards of decency that mark the progress of a maturing society.” Our continuing reliance on solitary confinement as a default for difficult prisoners raises the question of how much, if at all, we have progressed.

Jack Powers, now in his 11th year at ADX, mentions in almost all his letters that every day is a struggle not to lose what’s left of his free will.

“I could lie back, watch TV, eat chips and jack off all day and say to hell with it. But I cannot because there is some force of principle in my mind that will not allow me to do so,” he writes. “I am a voice crying out in a place where no one can hear me. I am saying, ‘Wait! We have it all wrong! We can do better than this!’ But maybe we cannot. Maybe we are just stuck with what it is. Maybe I am afraid of the world and of being human and of lacking love. Maybe we all are. Maybe this is all we are capable of.

“I hope not. But maybe it is.”

Photo by Debbie Zucker/The Gray Box project.

ASPEN, Colo. – In some ways, Susanna Deforest was typical of those who suffer from Colorado’s thinner air after arriving from a low elevation. A 20-year-old from Pennsylvania, she felt sluggish when hiking up a trail to the popular Conundrum Hot Springs near Aspen, lacking much energy. She had to stop frequently for rest.

But in critical ways, her personal physiology masked what was happening as her case of high-altitude pulmonary edema, serious in its own right, turned deadly. She wasn’t breathing hard, nor did she cough. She didn’t turn blue. There were no obvious telltale signs to tell her and her companions on Aug. 18 that her blood oxygen saturation was dropping dangerously low.

When she died early the next morning at an elevation of 10,367 feet, the oxygen saturation in her blood was at about what is commonly found in climbers who at between 22,000 and 28,000 feet in elevation unaided by oxygen.

Dr. Steve Ayers, the corner of Pitkin County, said Friday that her cause of death was high altitude pulmonary edema and high altitude cerebral edema. The former, HAPE, is more common and can precede the latter, HACE, which is exceedingly rare. However, HACE can occur without HAPE.

This was an extreme case of dangers of hypoxia, or the effect of oxygen deprivation on human tissues. It also poses questions for those who survive whether they could have done anything differently to prevent the death. In this case, the answer is probably not.

Mountain sickness is relatively common, afflicting about a quarter of all visitors to Colorado resorts of above 8,000 feet in elevation who arrive from sea level. Young men most commonly suffer. They eat heavy, drink too much alcohol, and still plow forward, skiing with gusto. The usual advice is to take it easy for a few days, stay hydrated, and get plenty of rest.

High-altitude pulmonary edema, or HAPE, ordinarily doesn’t show up until the second or third day. It can affect people at elevations of as low at 6,000 feet, but it’s more common at about 8,000 feet.

Aspen and Vail are both a little above 8,000 feet. Telluride is at 8,750, but most people visiting there stay at Mountain Village, elevation 9,545 feet. Mt. Crested Butte, the slope-side town, is 9,380 feet. Most lodges in Summit County are 9,000 feet or above.

The cases of HAPE are relatively rare. Just one visitor in every 5,000 to 10,000 visitors to Colorado mountain resorts will suffer HAPE, according to Dr. Peter Hackett. A physician, Hackett made hypoxia, or oxygen deprivation, a central part of both his research and his mountain climbing career. He summited Mt. Everest in 1981 and in later years ministered to climbers at the 18,000-foot base camp.

At Aspen Valley Hospital, physicians see HAPE victims one or twice a month although, on at least one occasion, there were three cases within a 24-hour period. Victims of the condition, also called acute mountain sickness, invariably arrive on their third night at altitude after their afflictions have worsened. Ayers says they complain about trouble with breathing and they can’t sleep. Sometimes they can hear fluid gurgling in their chests, and the sound worries them.

“It should worry them,” says Ayers. It’s a telltale symptom of HAPE.

These cases of HAPE are invariably remedied with the simple prescription of supplemental oxygen, about three liters a minute. The patients can return to their hotel rooms, oxygen cannulas in their nostrils.

Fatalities resulting from HAPE used to be more common in Colorado, the nation’s highest state with an average elevation of 6,800 feet. But travelers have become better educated and clinics in high-mountain valleys better able to respond.

Still, fatalities do occur. Several years ago, a visitor to Mt. Crested Butte died of HAPE. A hunter in the San Juan Mountains also died.

More rare and more deadly is cerebral edema, or HACE in which fluids built up in the brain. Rapid response can make all the difference. Ayers remembers a case several years ago of a young woman staying in Snowmass Village suffering from HACE. The lodge was probably at about 9,400 feet, the base elevation for which cerebral edema occurs. In that case, she was given oxygen immediately at Aspen Valley Hospital and put on a helicopter to a level-one trauma center in Denver, where neurologists are on staff around the clock. She didn’t need them, though. Getting off the helicopter in Denver, she had recovered.

In the case of Suzanne Deforest, supplemental oxygen would have made all the difference. But her symptoms were atypical.

She had flow to Denver on Aug 13, spending the night in Golden, elevation 5,675 feet. The next day she traveled to Dillon, elevation 9,111 feet, where she lingered for two days and probably started developing HAPE, according to the report of Ayers, the coroner.

The next day, on Aug. 17, she and companions set out from Aspen to hike up the Conundrum Hot Springs trail. It starts out at 8,700 feet and, 8.5 miles later, ends up at the hot springs, just below treeline at 11,200 feet in elevation.

Ayers says she struggled up the trail, needing frequent stops for rest, but companions said she did not exhibit obvious signs of breathing distress.

Her symptoms were subtle and atypical, as is true in 10 to 15 percent of cases. A healthy person at sea level has an oxygen saturation of 96 to 98 percent in their blood, says Hackett. Oxygen saturations typically drop to 89 or 90 when people are at 9,000 feet in elevation.

For a normal person standing on top of Mt. Everest, unaided by supplemental oxygen, it would be 40 or 50.

As the young woman struggled up the Conundrum trail, her oxygen saturation levels probably dropped to the level of the world’s highest peaks. As you develop HAPE, your oxygen level continues to drop, even if you are not ascending in elevation. HAPE, in this case, then continued into HACE. “It’s no mystery that she had high-altitude cerebral edema,” says Hackett.

Had the woman breathed heavily instead of just feeling lousy, she or her companions might have figured out that rapid descent was necessary. Instead, they hunkered down in a tent, sort of waiting out the storm. That was a fatal if understandable decision.

Arriving at 1:30 a.m., the rescue helicopter was unable to land, because of its weight. Instead, the helicopter had to burn off fuel. It didn’t land until 5:30 a.m. By then, she was dead.

But from the testimony of a key witness and a timeline put together by the Pitkin County deputy coroner, it almost certainly would have made no difference had the helicopter been able to land the first time. When the tent companion returned to the tent after shining her lights to the helicopter, she found the woman had stopped breathing.

There may be cases of victims of HACE brought back from the brink of death, but Ayers says he’s unaware of any. Victim of cardiac arrhythmia can be brought back from the brink of death. But when the brain has swollen to the point it is causing cardiac arrest, it can’t be reversed.

Had the victim and her companions carried a book of “Wilderness Medicine,” the text that Ayers carries with him on his travels around the world, they might have diagnosed her HAPE and then HACE. But few of us carry such books when backpacking or any place else.

This story was originally published on Sept. 8 in Mountain Town News.

Photo by Allen Best.

This story has been updated.

A judge today denied a five-year appeal by Sir Mario Owens, a man convicted for the 2005 witness killing of a state lawmaker’s son and his fiancé.

Today’s order leaves Owens, 32, on death row along with two other men: his co-defendant, Robert Ray, and Nathan Dunlap, the convicted Chuck E. Cheese’s shooter to whom Gov. John Hickenlooper granted a temporary reprieve in 2013.

Owens, 32, appealed his conviction and sentence largely on a long list of claims that prosecutors – who paid informant witnesses to testify against him – failed to turn over to the defense team key evidence that, if heard at trial, his lawyers argued may have changed the jury’s verdict. The appeal accused the DA’s office of “cumulative error” and “outrageous governmental conduct” in the case.

In today’s order denying Owens’ appeal, District Judge Christopher Munch wrote, “The court concludes that Owens received a fair trial – one whose result is reliable. He also received a fair sentencing hearing – one whose result was constitutionally obtained, justified in law, and is rationally based upon the evidence.

In a statement, the District Attorney’s Office of the 18th Judicial District said it “has always believed that Sir Mario Owens received a fair trial” and is “pleased” that Munch agreed.

“I am satisfied and respectful of the court’s findings in these matters,” said District Attorney George H. Brauchler. “I hope this latest step brings some small measure of closure to the victims after all these years.”

As of this posting, The Independent is awaiting comments from state Sen. Rhonda Fields, whose son, Javad Marshall-Fields and his fiancé, Vivian Wolfe, were fatally gunned down soon before Marshall-Fields was expected to testify against Robert Ray in the investigation of another murder a year earlier.

Owens’ lead defense attorney, Jim Castle, disagrees with the court’s conclusion that none of the misconduct claims made in the case matter and that they “can be tolerated in Colorado in any case, never mind a capital one.”

“This is a sad day for Owens, his family and the Colorado criminal justice system,” he said.

The case was prosecuted for six years under former 18th Judicial District Attorney Carol Chambers. Brauchler, her elected successor, has led the office for the last five years as it has continued rallying to preserve Owens’ and other death sentences against a long list of appeals claims. Brauchler, a Republican who has made a name for himself as a death penalty prosecutor, is running for governor.

There is no definitive physical evidence, no confession, and no eyewitnesses who identified Owens in a case prosecutors built almost entirely on the testimony of informant witnesses to whom the DA’s office gave plea bargains, funds, or both in return for their cooperation against Owens.

Among the charges upon which the appeal was based is the office’s failure to disclose thousands of dollars in payments it made to informant witnesses. One of those witnesses was promised and later given a district attorney’s office car. Some were given gift cards for local businesses. One received $3,400 in benefits, including cash for Christmas presents in the months prior to testifying on behalf of the prosecution.

The defense cited the prosecution’s failure to disclose other incentives given to witnesses in exchange for their testimony. If he didn’t cooperate, court records show, one of the main witnesses was threatened with being charged for the murders Owens was accused of and with receiving two life sentences. Another witness, according to the records, received a suspension of his jail sentence on the condition that he help prosecutors in Owens’ case. People working for the prosecution would appear at informant witnesses’ court hearings and ask for lesser sentences on the condition that they testify against Owens, the records indicate. Records also show that informants who had been convicted of crimes were allowed to violate probation and commit future crimes without consequences as long as they cooperated.

The appeal argued that by failing to disclose these deals before trial, the prosecution rendered Owens’ defense lawyers unable to cast doubt on those witnesses’ testimonies and put their credibility in dispute. In doing so, the argument goes, Owens was denied a fair trial.

The rules of criminal conduct say that withholding evidence that could have swayed a jury against a guilty verdict amounts to prosecutorial misconduct. Under Colorado’s death penalty law, it’s one of several reasons to disqualify a case for death penalty eligibility.

Brauchler’s office didn’t dispute that it withheld much of the evidence Owens’ lawyers listed in their appeal. Nor did the judge. Instead, both asserted that the evidence that was withheld wouldn’t have changed jurors’ guilty verdict or death penalty decision.

Owens’ lawyers long have countered that the ends don’t justify the means. Prosecutors’ hands need to be clean, the say, especially when a life is at stake.

The case has made headlines because of a string of court orders shrouding much of the documentation and evidence in secrecy. The court file remained sealed and all parties gagged from speaking about it until 2013, seven years after it was filed. Exhibits in the case remain sealed to this day, fueling continued concerns about a lack of transparency.

Most of the claims in Owens’ appeal applied to decisions made before Brauchler won office in 2012 when Chambers was being term-limited out. Brauchler decided to keep the same lead prosecutors on the case, and, under his watch, the office continued a pattern of not disclosing evidence. In February 2015, more than two years after he took over, one of his prosecutors disclosed that there was a set of secret “witness protection files” that, even at that point, hadn’t been given to the defense. The judge at that time, Gerald Rafferty, ordered the DAs to turn over hundreds of pages of documents, which revealed even more payments the prosecutors Brauchler kept on the case made to prosecution witnesses.

In court last year, Brauchler’s team strained to justify having knowingly sat on the secret evidence by saying they were trying to protect witnesses.

“Well, I will make the record that this is in regards to witness protection and the witness protection statute and more is not better under the witness protection statute, in fact, it’s confidential and –,” argued one of Brauchler’s prosecutors, David Jones, before Judge Rafferty interrupted him.

“I would strongly disagree with that, Mr. Jones, strongly disagree in a capital case,” the judge said. “ You can expect that in my order, sir. Let’s move on.”

Jones since has left the DA’s office but Brauchler continues keeping the two lawyers who handled the case when the materials were kept hidden as the lead prosecutors.

After reading an earlier version of this story this morning, Brauchler texted to say, “It’s not my office being accused. It’s (t)he DA’s office prior to me being DA.” The Independent responded by writing, “The claims include the ‘secret witness files’ revealed last year, George. … They were revealed three years after you took office. And your folks seemed to have known they hadn’t been turned over.”

To that, Brauchler responded this morning: “Good grief. I now own everything that happened or didn’t happen under my predecessor?”

In one of the Owens cases’s oddest twists, Judge Rafferty – who presided for 11 years over both the trial and appeal – was preparing to issue his ruling when he was fired last year for what Colorado Supreme Court Chief Justice Nancy Rice called a breach of contract on a personnel matter. Her office made the unusual move of sending out a news release about Rafferty’s removal. Rafferty argued that he did not breach his contract and emails provided by the state back up his assertion.

For years, Rafferty had shown an interest in what he once ruled was prosecutors’ “deliberate choice” not to disclose evidence favorable to Owens. He granted 37 weeks of hearings on most of the claims the defense made in its appeal. He held hearings on evidence exhibits and heard dozens of witnesses testify over two and a half years. He reviewed the 22,700-page court file, the 28,288-page trial transcript and the 27,836-page post-conviction record, plus 1,889 exhibits from trial and 880 exhibits from the appeals phase. And he spent 11 months working on his written decision.

The timing and manner of Rafferty’s abrupt removal raised questions in Colorado’s criminal defense and civil rights communities about whether state officials used the contract dispute as a pretense to fire the judge in order to keep the Owens case from being retried.

Defense efforts to uncover what led to Rafferty’s ouster have been rebuffed by the judicial branch and by Judge Munch, who was appointed to take over the case. Munch handed down his order today without having seen or heard from a single witness about errors in the capital proceedings.

As she waiting this morning to hear if Owens’ death sentence will hold, Sen. Fields said that she has never seen any wrongdoing by either the prosecution or defense: “I saw both sides working very diligently to seek justice on behalf of my son and his fiancé.”

Owens lives in solitary confinement at Colorado State Penitentiary, the supermax in Cañon City. He learned of his defeat today from the lawyers who’ve been appealing his death sentence for more than nine years. They wanted to break the news to him in person.

Many of the issues around which Owens’ appeal pivot also are at the root of an ongoing appeal by Ray, his co-defendant. Unlike Munch, the judge in Ray’s appeal has conducted evidentiary hearings into his claims, the majority of which complain of the same errors listed by Owens’ lawyers.

In a previous capital prosecution of two defendants in another murder case, there were similar claims of misconduct by the 18th Judicial District Attorney’s office, including the suppression of key evidence. Armed with that previously hidden evidence, one of those defendants, Alejandro Perez, was quickly acquitted by a jury. The judge presiding over the case against Perez’s codefendant, David Bueno, vacated his murder conviction. That ruling is now on appeal by the Colorado Supreme Court.

Earlier this summer, Jack Roth, one of state Attorney General Cynthia Coffman’s top lawyers on death penalty cases, lost his job after having made public comments that overstepped his authority to seek death in a Crowley County murder prosecution.

The similarities between Colorado’s three death row inmates are striking. In a state with a 4 percent African-American population, each is black. Each grew up poor. Each attended the same school, Overland High in Aurora. And each was prosecuted in the 18th Judicial District, which has pursued death in far more cases than any other district in Colorado. Under Chambers’ control, the office handed out Christmas bonuses to prosecutors who took on capital cases – a practice Owens’ lawyers have claimed amounted to an improper bounty system.

Several groups, including the NAACP and the American Civil Liberties Union of Colorado, have taken issue with how the death penalty is sought in the state. They’ve cited a study showing strong biases against ethnic minorities. Nationally, groups working to abolish the death penalty and end wrongful convictions are starting to focus on the kinds of prosecutorial misconduct claimed in Owens’ appeal.

Gov. Hickenlooper won office in 2010 as a professed death penalty proponent. When announcing in 2013 that Dunlap wouldn’t die under his watch, he said he was reconsidering his position. The governor cited racial disparities explicitly and alluded more subtly to prosecutorial integrity in expressing concerns that current death penalty practices could undermine trust in state institutions. Hickenlooper gave Dunlap a reprieve while indicating that if the state were to carry out executions, it should do so when the system operates flawlessly. Hickenlooper called for a “statewide discussion” about Colorado’s death penalty practices, given concerns about how the death penalty is meted out in the state,

Four years later, that conversation has not taken place even – as the Owens case shows – questions keep surfacing about capital prosecutions. The governor’s office hasn’t said why the policy discussion hasn’t started. Colorado’s moderate Democratic governor is eyeing a presidential bid in 2020 after he’s term-limited out of office.

Brauchler, in the meantime, is one of several Republicans who’ve launched campaigns to fill Hickenlooper’s seat in the 2018 gubernatorial election. The DA built his public profile personally prosecuting Aurora theater shooter James Holmes, against whom he won a conviction but not the death sentence he sought. Brauchler has gone on to become the state’s loudest death penalty proponent.

Photo of Sir Mario Owens from the Colorado Department of Corrections web site.

A coalition that launched a revamped plan it says would take partisanship out of how state and federal political districts are drawn is facing suspicions about its motives in a state with a bitter history that has left its district maps stained with bad blood.

At issue is a group called Fair Districts Colorado and its effort to persuade voters through a package of proposed ballot measures in 2018 to change the way electoral maps are drawn. It’s happening in this swingy state where voters are nearly evenly balanced among Democrats, Republicans and those who are unaffiliated with a party. And it’s happening at a time when political frustration with gerrymandering— a term for drawing political boundaries for partisan gain— is sizzling on the national stage.

The U.S. Supreme Court will hear a case out of Wisconsin next month about whether partisan gerrymandering violates the Constitution.

In Colorado, this redistricting plan isn’t new— but readers could be forgiven for thinking so.

Initial write-ups on the proposal in mainstream newspapers and the alternative press did not point out that the effort isn’t new. The plan is similar to one put forward in 2015 and 2016 by some of the same people involved in this latest effort.

Some of those behind the campaign are political operatives who have been involved in redistricting for years. Some helped lead a similar— and controversial— campaign last year that fell apart when the Colorado Supreme Court blocked it on a technicality. Before that the effort faced harsh accusations that if it came to pass it would undercut the state’s large Latino vote. Critics in Colorado’s minority communities also said they didn’t have enough input into the plan.

Knocked down last year, the group — then called End Gerrymandering Now — vowed it would try again. It included former GOP House Speaker Frank McNulty and former GOP Senate Minority Leader Josh Penry, as well as former Democratic Secretary of State Bernie Buescher, PR pro Rich Coolidge, and ex-lawmaker Kathleen Curry, a Democrat who later became unaffiliated.

All of them are working on this new proposal in a campaign they are now calling Fair Districts Colorado. They launched a new website last week.

This time they say they tried to do more outreach to minority groups, and they beefed up language in the measures to add the words “racial” and “language group” to determine communities of interest, a criteria in redistricting that seeks to keep people who have similar interests together within voting lines.The redistricting effort also counts as a partner the League of Women Voters of Colorado, a group that carries plenty of neutral street cred— a kind of Red Cross on the battlefield of the partisan voting wars.

That hasn’t swayed critics.

After reading the fine print in the ballot measures, Denver lawyer Mark Grueskin, who has represented Democrats in redistricting fights, says he sees this latest effort as a way to actually embrace gerrymandering while saying it’s doing something else. It creates a system, he says, that is driven by political insiders and executed behind closed doors, making competitiveness a mere whisper in the process.

“The proponents are lucky that the initiatives aren’t subject to the jurisdiction of the Federal Trade Commission because I think there’s some misleading advertising that’s going on here about what this is, what it does, and how it’s going to hurt the goal of fair and effective representation in Colorado,” he says.

These are the first shots in what could be yet another bruising battle over how Colorado ensures its voters have fair representation.

So what is this plan anyway?

Fair Districts Colorado says its ballot measures, if passed, would dilute the influence of partisan politics when Colorado redraws its congressional and state legislative districts every 10 years after each U.S. Census. The next redistricting is coming up a year after the next Census in 2020.

Under Colorado’s current system, “voters don’t choose their politicians,” Fair Districts says on its website, “politicians choose their voters.” And that’s true in that elected officials currently appoint the majority of commissioners who vote on the maps that divide the state’s voters into federal and state districts.

Currently, Colorado’s seven congressional districts are drawn by the state legislature. The 100 puzzle pieces of Colorado’s state House and Senate districts are approved by an 11-member panel called the Colorado Reapportionment Commission, which is made up of appointees chosen by the governor, legislative leaders, and the chief justice of the state Supreme Court. Legislative staffers draw up maps, and they can and do get input from political parties and operatives with sophisticated software that tells them where voters of certain political persuasions live. Because the commission has an odd number of members, whichever party controls more votes on it holds sway over which maps they ultimately choose. A Democratic governor, a Democratic House Speaker and a Democratic Senate President, for instance, likely would mean more Democratic commissioners.

Fair Districts Colorado wants to increase the board to 12 members with the requirement that four not be affiliated with a major political party, meaning Democrat or Republican. The goal is to have four be unaffiliated, but the ballot measure language allows them also to be members of minor parties like Libertarians, Greens, or members of the Unity or American Constitution parties. Fair Districts says it wants more competitive seats and believes this is a way to get there.

One of the proposed measures, Initiative #48, would change Colorado’s Constitution to create that 12-member commission. The commissioners must be spread across the state and can’t be lawmakers or candidates. And instead of the governor and chief justice choosing its members, the state’s two largest political parties would choose eight of the 12 members.

The four non-major-party members would be recommended by a panel of retired judges of differing political parties and appointed by the Secretary of State. The judges would have at least one public meeting before determining 20 potential members who the party-affiliated commissioners would then whittle down to four in a reverse-lottery process, kind of like picking a jury at a trial or being voted off the island on a reality TV show.

The measure would require that districts to be compact, preserve county boundaries, and ensure communities of interest, “including racial, ethnic, language group, cultural, economic, trade area, geographic, and demographic factors,” are preserved within a single district wherever possible. (Racial and language group are new terms that don’t already exist in current law, says attorney Bill Hobbs and election law attorney with the Denver-based Ireland Stapleton firm who worked on the ballot measure.) Once other requirements are met, and “to the extent possible,” the measure states, the commission “shall maximize the number of politically competitive legislative districts.”

Under the ballot measure, maps would still be drawn by nonpartisan staff at Legislative Council— lawyers who work at the Capitol in Denver— but those staff members wouldn’t be allowed to talk to anyone but each other about how the maps should be drawn unless authorized by the commission to speak with experts. Staffers would have to tell the commission if someone tries to influence them. They could take recommendations from commissioners or outside sources on map drawing only at public meetings, unless otherwise authorized by the commission.

Initiative #49 is similar except it wouldn’t change the state Constitution, it would change state law.

Initiative #50 deals with how congressional maps are drawn and would change state law to create a 12-member commission of similar makeup to the legislative one.

All maps would be drawn by staff at first— largely in a vacuum— and then would have to be made public and published online at least 24 hours before being considered by commissioners in a public meeting.

In the end, the State Supreme Court would get final review of all the maps.

And what’s wrong with that?

That depends on whom you ask. And how closely you look at the details.

Beyond concerns over lack of input from minority communities, critics are attacking the plan on other fronts— from standpoints of transparency to substance and language to charges of mischaracterization, and to just plain mistrust about who is behind it.

Grueskin, the election lawyer, sees a disconnect in what Fair Districts Colorado is saying publicly and what’s in the proposed ballot language of the ballot measures.

For instance, two thirds of the new 12-member commission would be chosen by the state’s two political parties instead of by the governor, chief justice and legislative leaders as is done now. In other words, he says it would put more power into the hands of political insiders who are accountable to partisan politics rather than voters.

He also points to provisions that say legislative staff members who draw up the maps can’t talk to commissioners about them until it’s time for the commissioners to consider the maps. That would be different than how it works now when commissioners and staff can communicate and get input from outside sources throughout the process, which is what has led to charges of influence by partisan professional mapmakers.

“I can’t imagine why you’d want commissioners to be unknowledgeable about the maps that staff is going to have them vote on,” Grueskin says.

He also takes issue with how the pitchmen for Fair Districts Colorado talk so much about competitiveness— which is not defined in the proposed ballot measure language— as a tenet of their reforms. “Let’s be honest, under their proposed amendments competitiveness is a sham,” Grueskin says. “Competitiveness is only considered once every other consideration that’s required by the initiatives has been satisfied … the very last thing to be addressed as a priority.” A supermajority— eight out of 12— commissioners can determine what competitiveness means, but they don’t have to, according to the proposal.

Meanwhile, some progressives worry that if Fair Districts Colorado passes its measures and gets its way the new proposed plan would make it easier to elect more Republicans in Colorado. The initiatives aim to preserve political boundaries like counties— which is currently the law of the land— instead of allowing mapmakers to break them up.

Preserving counties in Colorado, where large rural counties are primarily Republican, can mean more Republican maps, says Ellen Dumm, a consultant who advises progressive causes in Colorado and is rallying a coalition to oppose the ballot measures. Taking county-line preservation into more account than communities of interest, she believes, would mean more GOP-looking maps in the future.

Also, Dumm says she just doesn’t trust some of the GOP political operatives involved.

Dumm thinks Republicans might feel they got a raw deal in the last round of redistricting because Democrats were in control and this could be payback. “It sounds like sour grapes to me,” Dumm says of the plan. “But with all the nice dressing.”

So far, two in-state organizations that take an interest in redistricting have not signed on.

Elizabeth Steele, the elections director of Colorado Common Cause, says her group is “reviewing” Fair Districts Colorado’s proposals, but she wouldn’t say much more beyond that. Elena Nuñez, director of Colorado Common Cause, says her group offered feedback. The group is likely to take a position on the measures at some point, but hasn’t yet.

“I think [with] reforms that have a major impact on how the people of Colorado are represented it is important to ensure that there are a broad and diverse set of voices at the table,” Nuñez says.

The ACLU of Colorado, which advocates for independent commissions and opposes gerrymandering, says it didn’t have input on the Fair Districts plan. Denise Maes, who directs public policy for the ACLU here, says she worries about some aspects. “What you have is staff folks who are in charge of developing the maps and they’re really not accountable to the public.”

Rosemary Rodriguez, a Democrat who served as the Denver county clerk and recorder and chaired the Colorado Reapportionment Commission in 2000, says a representative of Fair Districts approached her about its plans, but she isn’t on board. Her primary hesitation is that the U.S. Supreme Court will hear a case this year on partisan redistricting.

“I feel like if we make really, really major changes to the process without that knowledge, knowing that they’re going to rule might be a mistake,” she says. “I would encourage everybody to wait until we can really dig into whatever their ruling is.”

Another sticking point for Rodriguez is that 2018 will be the first time unaffiliated voters can participate in party primaries and she would like to know to what extent they do that before making another major substantive change to the way Colorado decides how districts are drawn.

“I know it’s partisan, I hate gerrymandering— everyone does— but I’m not sure we should jump on the first train to fix things,” Rodriguez says.

Is Colorado actually gerrymandered?

Maybe not in the way you think.

At the congressional level Colorado isn’t all puzzle-pieced-out into those sawtooth, snake-looking districts that you see in, say, North Carolina. The seven districts are pretty compact. Still, only one is truly competitive, say backers of Fair Districts Colorado.

The 65 state House seats are where gerrymandering in Colorado has typically occurred, according to some Republicans who sat on the latest redistricting commission in 2011.

Colorado’s legislature has swung back and forth between the parties and is currently split with Democrats controlling the House by a handful of seats and Republicans controlling the Senate by one. Still, out of 65 seats in the Colorado House of Representatives, only a few are really competitive and only seven out of 35 are competitive in the state Senate, argued former Democratic Sen. Ron Tupa when announcing the launch of Fair Districts Colorado.

“It’s clear gerrymandered districts rig elections,” he said.

Mario Nicolais, a Republican election attorney who sat on the last Colorado Reapportionment Commission, says a big mistake, though, when thinking about how political lines are drawn, is to focus on individual districts instead of looking at the state or legislative chambers as a whole.

And at the federal level, while you probably couldn’t make Colorado’s 5th District —which encompasses the heavily GOP Colorado Springs area— competitive for a Democrat, you could move around the lines of the state’s other six districts to more accurately reflect the state’s voters.

Colorado also has a messy history with redistricting.

Close watchers remember the “midnight gerrymander” of 2003 when the legislature, then run by Republicans, drew maps that the State Supreme Court later threw out. As Democrats made more inroads in the legislature it was Republicans who called foul after the latest redistricting following the U.S. Census in 2010.

Both sides have tried to gerrymander Colorado, Nicolais says, but only Democrats have been successful in the past decade, especially for state House seats.

In 1980, 2000 and 2010, the district maps landed in court and a judge ultimately made the final decision. After the latest round of redistricting, in 2011, a judge ruled in favor of a congressional map Democrats drew, which infuriated then-Republican Party Chairman Ryan Call who said the lines split counties to benefit Democrats.

That same year, a then-GOP lawmaker named B.J. Nikkel from the Loveland area accused Democrats of re-drawing her House district in a way that forced her to run against a sitting Republican colleague. At the time, she called such map-drawing, “the gold standard of gerrymandering.”

Retired Colorado College political scientist Bob Loevy is a Republican who wrote a book about his time on the 2011 Colorado Reapportionment Commission where helped draw the state’s legislative districts. He says Colorado is “completely” gerrymandered, particularly in the House.

Both parties have been to blame since the 1970s, he says.

Loevy supports the Fair Districts Colorado plan because based on his experience, he says it would lead to more swing seats with more unaffiliated members choosing maps.

What’s the political context?

Right out of the gate, some who opposed last year’s movement started rattling the sabers. The week Fair Districts launched, progressive activists were talking about cranking up a pushback campaign.

“My biggest concern is that it’s just a repackaging and polishing of a turd,” says Thornton Democratic Rep. Joe Salazar who is running for attorney general and led the opposition to last year’s movement to change the way Colorado draws political maps.

To understand why, you have to understand what happened last year when minority groups and leaders said they did not have enough input into the effort. The group leading redistricting last time was called End Gerrymandering Now. Like this time around, the plan would have established a 12-member map-making commission that includes four unaffiliated voters, and would require nonpartisan legislative staff to draw political boundaries, not political operatives or partisan sources.

But critics pointed to red flags they saw in the ballot language.

For instance, recognizing “communities of interest,” including “ethnic, cultural, economic trade area, geographic and demographic factors” came last in a list of priorities. That led opponents like former Denver Mayor Wellington Webb to make an attention-getting charge that the plan was “clearly an effort to destroy the Latino vote in Colorado.”

A narrative gelled: What if the supposedly bipartisan redistricting effort in Colorado was actually a nefarious Trojan Horse plot to tint Colorado red?

There was also the money.

Progressive critics suspicious about a right-wing redistricting effort pitched as a bipartisan plan point to who partially funded End Gerrymandering Now. The campaign took $162,000 from a group called Citizens for a Sound Government, a Denver-based dark money group that gets involved in GOP elections, according to filings with the secretary of state. A group called Colorado Citizens Protecting Our Constitution, which has donated to causes opposing Democrats in recall elections over gun rights and against a minimum wage hike, gave $50,000. A group called Colorado PRFRS, run by Cameron Lynch, a man who helped Republicans draw redistricting maps in in the past, gave $17,500.

Kathleen Curry, who is leading Fair Districts, says there isn’t a paper trail to follow the money for this latest effort yet, and hopes the campaign will raise funds through grassroots organizing.

Though End Gerrymandering Now carried support from three Democrats including ex-House Speaker Mark Ferrandino and political consultant James Mejia who is a former director of the Denver Hispanic Chamber of Commerce, Democratic leaders said the bipartisanship was a smokescreen.

Democrats urged other Democrats not to support the plan. Then-Democratic Party chairman Rick Palacio said he didn’t trust the process because his party hadn’t had input. “We don’t feel the voice of the minority community has been heard,” said Denver Democratic Rep. Angela Williams who is black. Representatives from the NAACP spoke out.

By January 2018, Ferrandino was saying if there couldn’t be a compromise to satisfy enough people he might back out. Those involved tweaked the language, but some Latino lawmakers called it too little too late and said the effort was doomed to fail.

When summer rolled around it didn’t really matter. The Colorado Supreme Court tossed the proposal because by state law a ballot measure can’t contain more than one subject, and the High Court ruled the redistricting measure did.

For his part, Mejia is not involved in the latest effort, saying he was burned last time around.

He initially got involved, he told The Colorado Independent, because he had hope in the idea of bipartisan cooperation to end gerrymandering. Instead, he says, he found an unwillingness from people in both major political parties to listen to those in opposing parties with whom they did not like.

“For me, this process exemplifies what is wrong with the two party system,” Mejia says.

Now, like last time, this latest effort faces similar charges, and more.

Former Democratic Sen. Jessie Ulibarri, a vocal opponent of last year’s effort, says he worries communities of color were again not engaged enough in the process of creating the new redistricting proposals.

“It’s 2017, and in no way shape or form is it oversight to exclude more than 20 percent of the state population that’s Latino, more than 10 percent of the state population which is African-American, more than five percent of the state population which is Asian,” he says.

On its website, Fair Districts Colorado lists more than two dozen supporters. None are black, but four of are Latino, including ex-Democratic Lt. Gov. Joe Garcia, GOP Rep. Clarice Navarro-Ratzlaff, former lawmaker Larry Trujillo, and former Sen. Abel Tapia.

Over the past week, Salazar, the state lawmaker, says he has been reaching out to some listed supporters to make sure they know the details of the plan and who is behind it.

Because of the stinging charges last time, the group says it made a good-faith effort to engage minority leaders and communities on the new push. Its members reached out to at least 180 community leaders and organizations in Colorado, including 25 from minority communities, its representatives say, but the group just didn’t get much feedback.

Toni Larson of the League of Women Voters of Colorado helped spearhead outreach for Fair Districts Colorado, she says, and she’s disappointed by the early criticism.

Her group over the summer sent the redistricting proposal to all 100 lawmakers— twice, she says, once in an email and again in hard copy. She says she personally sent one to at least one black business group.

“We tried really hard,” Larson says about outreach. “We went to the minority communities and we asked them for comments … they could have responded.”

Larson acknowledges the plan won’t be perfect and it will have political elements by nature.

“I’m surprised that they didn’t respond if they’re going to be that adamant,” she says.

How is Fair Districts Colorado responding to early criticism?

Well, for one, its backers expected it.

On a Sept. 6 conference call with reporters about the new plan, former GOP House Speaker Frank McNulty said he anticipated some “partisans on both sides” to oppose their effort, or “those who have a vested interest in the current process where partisans get to control” how legislative districts are drawn.

“When you talk about putting transparency measures in place, when you talk about competitiveness, when you talk about opening the process, the public benefits,” McNulty said. “But those who currently have power lose it— and those are the ones who will fight most fiercely against this.”

In the days after his group’s launch, McNulty found himself defending the plan from charges that involve race. The debate spilled out on social media almost immediately. Ulibarri, the former Democratic senator and a progressive voice in Colorado, aired some of his concerns about lack of input from minority communities in the project on Facebook, and then it moved to Twitter.

Which ones signed on? Where is the NAACP? Mi Familia Vota? Common Cause? Any former progressive electeds of color? I'll wait…

— Jessie Ulibarri (@jessie4CO) September 7, 2017

I can't help being white, bro. #BornThisWay https://t.co/NMyG9ktVMN

— Frank McNulty (@SpkrMcNulty) September 7, 2017

Ulibarri works for the progressive activist group Wellstone, and progressives, just like those on the far right, will be the “ones who lose” if Fair Districts Colorado gets its way, McNulty says.

That the effort doesn’t yet carry public support on its webpage from a single black person in Colorado is “not for lack of outreach,” he says. “It’s not for lack of invitation to participate.”

Curry, the former Democratic lawmaker turned independent whose name is on the proposed ballot measures as a designated representative, is pushing back against Grueskin’s critiques. She says having political parties make appointments rather than elected officials is the best way save for perhaps a lottery-type system. “We assumed that the parties would want to do their own appointments,” she says.

As for legislative staffers drawing the maps without input from commissioners, she says the idea is to make sure individual commissioners don’t put pressure on the map makers outside of a public meeting. “The thought was that any direction to the staff had to be done in public,” she says.

Responding to why competitiveness isn’t defined in the ballot language, Curry says a sticking point is that litigation is pending before the U.S. Supreme Court in the case out of Wisconsin. Leaving competitiveness undefined would allow commissioners to react to however the High Court rules.

Curry understands the criticism and skepticism from some on the left about the Republican operatives and previous funding for the redistricting efforts she has led for the past three years. Her interest, she says, has always been to involve more unaffiliated voters and commissioners in redistricting, and she has received support from those willing to help, even if they are Republicans getting financial help from conservative organizations. She says she has not seen such willingness from the other side to involve unaffiliated voters in the process.

She says there are several redistricting reform efforts around the country right now. In Michigan, for instance, a group called Voters not Politicians proposed a ballot measure it says would create a more independent redistricting commission. Progressives and union groups in Missouri are working on a ballot measure they say would make drawing political lines less partisan. A group called Fair Districts = Fair Elections launched in Ohio and Fair Districts PA is on the ground in Pennsylvania.

“Some of them are being led by Republicans and some are being led by Democrats,” Curry says. “And because the way the pendulum swings back and forth … I think it’s really shortsighted for either party to dig their heels in and say ‘I don’t want to move forward on this’ because I don’t want to relinquish anything.’”