April 6, 2007

Public comment curtailed at 1041hearing
By Lynda James, Correspondent

Several citizens at Will-O-Wisp Metropolitan District's water 1041 permit hearing on March 28 expressed displeasure - during and after the hearing - on the procedure used by Park County's Board of County Commissioners during citizens' presentations.

Before breaking for lunch, Board Chairman Leni Walker announced that organization representatives would be allowed 10 minutes to speak and individuals would be given 3 minutes. That left some organizations scrambling over the lunch break to cut their presentations.

United Mountain Communities representative Briggs Cunningham assumed that people would be allowed to donate their time to presenters who needed more time. He told The Flume that had been the commissioners' practice for several years. In fact, some people sign the speakers' list just for that purpose.

During Cunningham's presentation, Walker told him the commissioners were not going to allow others to donate their time to speakers. He had timed his presentation at 30 minutes and told the commissioners that. He was not allowed to finish his presentation, even though many raised their hands and said they would donate their time to him.

During Dan Hayman's presentation, he said, "The law says the public shall be heard. Yet a man comes very well prepared with data, and you wouldn't let him finish."

After the hearing, during Patrons' Comments (on non-agenda items), Michael Schaefer also said the law and Park County regulations state that all in attendance shall be heard. He said: "You don't have a right to limit testimony to 3, 5, or 10 minutes, as your attorney said." Schaefer said the Supreme Court had ruled that arbitrary time limits can not be set.

Also during Patrons' Comments, Lynn Louvar, metro district board member, said that after the commissioners set a 10-minute time limit, they let some go over and some were cut off.

"That's not right," she said. "It needs to be the same for all." She said one person had been allowed to speak for 38 minutes while others were cut off.

Cunningham told The Flume, "I spent most of my free time over a six-week period preparing a clear, concise presentation that summarized United Mountain Communities' position so the commissioners could make an informed decision. I wasn't able to present it all."

The Flume called all three commissioners to ask why the past practice of allowing people to donate their time to others was changed for this meeting.

Commissioner Doc McKay said they weren't trying to change past practice but trying to manage the time at this particular meeting due to the large turnout. He said people had told the commissioners that 300 people were coming to the meeting. He said he wasn't aware of the donation of time as a past practice. McKay took office in January 2007. He said he wanted all opinions heard and donating time to others could have limited the number of people who were able to speak.

"This is open government. We wanted to make it fair for all, give everyone a chance to speak and all opinions an opportunity to be heard," McKay said. "We let several continue past the buzzer so they could finish their thought. Some took more time than others to finish their thought."

Commissioner John Tighe agreed that limits were set because so many had signed up to speak and the commissioners wanted all to be heard.

Walker agreed with Tighe and McKay. She said that if time was given away to speakers, the possibility of one speaker taking most of the afternoon was possible and they wanted to afford all an opportunity to speak who wanted to speak.

Tighe did say that they were not consistent on the time limit and they should have been in the name of fairness. "I felt bad for Briggs. He should have had as much time as some of the others. For example, Mike Schaefer was given 28 minutes," Tighe said. "I wish we had followed our previous procedure where we allowed others to give away their time. It would have been better - fairer."

Walker said she had asked all the staff attorneys present if they were aware of a new law or a Supreme Court ruling prohibiting time limits. None were. She commented that in six years of attending Colorado Counties Inc. (Colorado's county commissioner organization) that she had never been informed of a recent ruling that prohibits governments from putting time limits on public comment.

"The law is clear. The public has a reasonable right to be heard, but governments have the right to limit testimony," Park County Attorney Stephen Groome told The Flume. "I've been a county attorney for four and one half years. All my training at the County Attorneys Association and all my experience supports this."

Groome commented that every county he knows of has limits, as do state governments and the Supreme Court. Groome said some, such as the Supreme Court, will cut comment off in mid-sentence to adhere to their strict time limits.

Cunningham said some issues he didn't have time to fully explain, and some issues he didn't get to raise. He also had several handouts he wasn't able to give to the commissioners.

One example is an inconsistency between Colorado Division of Water Resources Tabulation of Water Rights and the Colorado Decision Support System. Both are data bases used for administration and allocation of water rights.

Each water right is listed by an administration number, name of the water right, location and amount of water right and water court case number. The support system list was changed in Oct. 2007.

Cunningham had several questions he felt were important to raise regarding the two lists, such as how a six-acre-feet reservoir water right became three different one-cubic-foot-per-second Glasmann Ditch rights. Another questions he had: Is it important that a Glasmann Ditch #2 right was changed to a Glasmann Ditch right, considering the fact that the #2 right is very junior and the Glasmann Ditch right is very senior?

Cunningham said maybe someone could explain the mechanics of the lists that are used to place calls on the river according to seniority. But he was concerned that five water rights seemed to have been changed into eight water rights and moved up the priority list One went from 87th to 10th and 10 Elk Creek water rights senior to it totaled 10.75 cfs. "It may mean nothing, but the questions should have been allowed to be raised," he said.

Other examples of information not presented or fully explained include more information on Colorado drought history and how senior water rights on Elk Creek might not be satisfied. He had calculated that withdrawals at a rate of 0.31 cfs would dry Elk Creek up to seven weeks every year and questions about the mechanics of measuring stream flows and how the metro district would limit withdrawals.

Cunningham also noted that the Colorado Department of Wildlife's letter said they had been given 144 measurements of Elk Creek flows between March 2002 and April 2004, yet flow data in the application showed 61 measurements during the same time period.

Cunningham said he didn't even get to what he considered the biggest issue - that if approved, the metro district, a government agency, would then violate the spirit of Colorado law by taking property through condemnation from one private landowner for the benefit and use of another private landowner. That part of his presentation would have taken approximately five minutes.

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