Guest Editorial

 WHAT PRICE JUSTICE?

On August 8^th, the (Boulder) Daily Camera carried a story regarding Judge Sandstead’s order that the County reimburse $325,000 in attorney fees to four residents wrongly sued by the County over access to private property from the Nancy Mine Road .  The short column and headline may have given the reader the misimpression that the award was a settlement between the County and the landowners. 

These are the facts:  

Chris Mygatt made improvements to the Nancy Mine Road, a 100-year-old mining road that had long served his family and the surrounding area as access to their property.  Three neighbors owned homes and property that could only be accessed from the road, and for the Mygatts it also served as secondary and emergency access.   

The Commissioners (Ron Stewart, Paul Danish and Jana Mendez) demanded that the entire one and a half- mile road be  “reclaimed” to its pre-1872 condition, including the portions of the road that, for decades, had provided sole access to the homes and property owned by Shafroth, Gontar and the Krafts.  The Commissioners also demanded that they pay for restoring the entire length of the road.  “Reclamation” would leave the landowners without access to their homes and property, and virtually eliminate 7 existing building sites owned by the Krafts.   

The Four Mile Fire District has long considered the Nancy Mine Road crucial to protecting the heavily forested and populated area in Wall Street in the event of wildfire and many local residents had used it for years as a shortcut between Gold Hill and Wall Street.  The road was the only for emergency evacuation route for those living of those living on Wood Mountain and down on Wall Street.  

The County not only sued the Mygatts, for constructing an “illegal road”, but also sued the three neighboring families, the Krafts, Gontars and Shafroths, despite the fact that they were not involved in the roadwork, and no “illegal grading” was done on any of their properties.   

The County falsely attributed roadwork done by the State of Colorado mine reclamation program during the 1980’s and 90’s to Mygatt, and failed to do adequate investigation before filing their complaint.  In fact the County simply denied the existence of the road itself, despite undisputed evidence to the contrary.  Finally, the County failed to disclose critical evidence in its possession regarding the extent and location of the dirt actually moved.  

The County knew for at least five months before it filed suit that it had no basis for suing Kraft, Gontar & Shafroth:  

            “The County ignored its own knowledge that the Nancy Mine Road was an existing historical road.  It ignored the fact that Kraft, Gontar and Shafroth had no ownership interest on the upper road or the lands of Mygatt.  It ignored the fact that Kraft, Gontar and Shafroth already had longstanding vehicular access, and that the County did not then, nor does it now, regulate road maintenance on existing roads.  It further ignored the fact that Kraft, Gontar and Shafroth neither initiated nor controlled the activity of Mygatt on his lands…” [the words of Judge Sandstead]  

The claims against the Krafts, Gontars and Shafroth were dismissed in federal court in June 1999.  Mygatt settled with the County later in 1999, admitting no liability, and agreeing to put the dirt he moved on two corners of the road back where it was.  The County characterized the rest of the grading and road improvements as “maintenance”.  

Last week, after five years of hardball litigation (for which the County is notorious), the Court rendered judgment against the County and ordered it to reimburse the landowners for their attorneys fees – a rare sanction imposed only when the party ordered to pay has conducted itself in bad faith, or pursued legal action which is frivolous, groundless or vexatious.  Judge Sandstead found all four standards of misconduct present in this case:  

 “…the County repeatedly ignored information already in its possession, available in existing County records, or readily available upon simple inquiry.  It ignored its own regulations and state statutes concerning notice.  It continued the suit for many months after being deluged with precise information indicating the lack of a basis for action…”  [the words of Judge Sandstead]

This is not an isolated case.  Recent Court decisions show that the Commissioners have routinely misused the County Attorney ’s office to impose their “no-growth” political agenda.  In the past four months we’ve seen attorney fee awards paid to Bob Eason (an outspoken critic of the county’s land use policies) of nearly $1,000,000 as well as the $325,000 in this case.  On top of that, the taxpayers of Boulder County will foot the bill for the County Attorneys ’ own in-house fees of $500,000 in Nancy Mine Road case, $250,000 in the Big Horn Mountain case, and far more than $200,000 in the Eason cases, not including outside counsel, expert witnesses and other resources.  This all adds up to at least $2,275,000 of mostly Boulder County taxpayer funds wasted on needless and for the most part groundless litigation.  And this at a time when Human Services, Social Services and other deserving programs go begging.  

If true to form, the Commissioners will appeal this latest award against them for groundless litigation, further delaying relief for the families of Kraft, Gontar and Shafroth.  The judge’s ruling is thorough and sound, and will doubtless be affirmed by the appellate courts.  The result of another foolish appeal on the part of the County will be to add even more fees for taxpayers to pay.  

In the wake of this most recent blow to the Commissioners’ Take No Prisoners strategy, the citizens of Boulder County deserve some straight answers:  

• What impact have these court-ordered awards had on the County’s insurability, budget, insurance carriers and the cost of insurance?  How much more do we pay for coverage?

• What are the true legal costs of the County’s pursuit of groundless claims against citizens and landowners?  This is the tip of the iceberg:  there are many other cases we don’t hear about.  Does the County deliberately hire people willing to take an adversarial approach with homeowners or to defeat their building projects, or is it part of training new hires?

• How much longer will Boulder County taxpayers be willing to pay for defending against frivolous claims, not to mention the sanctions that can be imposed for pursuing bad faith claims.

• How many more times can the County appear in the appellate courts defending against bad faith claims without losing credibility within the State Judiciary system?

The County Commissioners have repeatedly misused its lawyers, sometimes to eliminate home sites, or gain open space (Big Horn Mountain and Nancy Mine Road), and -- some claim -- even vindictively to punish those who speak out against their land use policies (Eason).

Will two new Commissioners change this practice?  

Land Use Coalition
Betty Gibbs, President
Kevin Probst , Past President
Bret Gibson, Past President of the LUC & Fire Chief of Four Mile Canyon Fire Department
AJ Chamberlain, Past President

See Issues and Alerts for more information about the Nancy Mine Road Decision.