November 2009

Casey McClellan on his lawsuit against the county

By Gail Binkly

A year and a half ago, Casey McClellan was a well-liked member of the Montezuma County Planning Commission who was considering a run for the county commission – a candidacy that, it appeared, was going to have the support of a number of people in the pro-planning camp.

Today he’s one of the county’s most controversial figures – still well-liked by many, but the object of harsh criticism from many of the advocates of stricter land-use regulations who had initially been sympathetic to his possible candidacy.

The abrupt change was the result, of course, of McClellan’s proposal to build a facility for treating and recycling energy exploration and production (E & P) wastes on land he owns near the western boundary of the county – a project he staunchly defends.

After the proposal was rejected by the commissioners on a 2-1 vote on June 1, McClellan and his business partner, his brother Kelly, filed suit against the county.

Hovenweep Alliance allowed to join suit over waste facility

The Hovenweep Alliance, a coalition of citizens opposed to a controversial facility that would treat energy-production wastes near Hovenweep National Monument, has been granted standing to enter into a lawsuit filed against Montezuma County.

The developers of the proposed facility, Casey McClellan and his brother Kelly McClellan, filed suit June 30 against the county after the commissioners denied permits for the proposed solid-waste facility on June 1.

On Oct. 13, District Judge Sharon Hansen granted the alliance’s motion to be allowed to intervene in the lawsuit in support of the commissioners’ decision. “It is clear that the residents surrounding the proposed [facility] have an interest in the use of adjoining lands and that their articulation of the issues may not align completely with the County,” Hansen wrote in her order. “It is appropriate that they have a right to representation of their own and therefore a right to intervene in this action.”

“The reason the court allowed us in is that our set of concerns is unique from that of the county’s,” Erin Johnson, attorney for the Hovenweep Alliance, told the Free Press. “In a lot of ways they’re very similar, but there are things we think the county isn’t adequately representing on our behalf.”

Johnson said decisions about appeals of land-use decisions such as this one must be decided solely on the record made during the commission’s public hearings rather than on new evidence. “The court only decides whether the commissioners made a decision correctly and did not abuse their discretion.”

She said because of the decision to allow the Hovenweep Alliance to be part of the lawsuit, an extensive brief she prepared before the public hearing and introduced as part of the process will now become part of the record. “So it was a real milestone to allow us in.”

The lawsuit is in its early stages. Recently, a third party, the Hovenweep Alliance, was granted standing as an interested party. [See sidebar].

McClellan told the Free Press that as a former planning commissioner who worked to craft some of the county’s current regulations, he feels strange suing the county.

“I would rather not be in this position,” he said. “I wish there were some other method, some other means of appealing. But the only way to appeal is with a lawsuit.

“I would rather not do this, but we have proposed a very solid project and the commissioners seem to agree with that, based on things they’ve said.

“To propose a solid project, a green project, something that’s about recycling, and have the commissioners agree it’s a solid project, and then to have it denied because of a technicality or some vagueness in the land-use code – that doesn’t feel right. We felt like we had to do something.”

The proposal by the McClellans was for an 83-acre facility to be run by their company, Four Corners Recycling Systems, on their 473-acre Hovenweep Canyon Ranch. The facility would be for the storage, treat ment and recycling of briney, chemical-containing liquid E & P wastes in a series of lined evaporative ponds. It would also treat petroleum- contaminated soils by spreading the soils out on the ground to let the chemicals break down.

The proposal instantly ignited controversy. Although the site is in one of the county’s least-populated areas, it lies near the entrance to Hovenweep National Monument and to a popular ancient Puebloan site on Canyons of the Ancients National Monument. Farmers, ranchers and neighbors in the vicinity also voiced worries about possible air pollution from the evaporative ponds, groundwater contamination, and the impacts of heavy truck traffic on the narrow county road.

In their complaint against the county, the plaintiffs charge that the commissioners’ decision to deny permits for the project was based solely upon their conclusion that Section 3303.4 of the land-use code would not allow the permits because the code does not specifically list waste-disposal sites as among the 14 “temporary or interim”??? uses that can be allowed on agricultural lands via a special-use permit. The McClellans chose not to seek industrial zoning for the project.

McClellan said he believes the board’s decision was wrong because the facility would not even be a waste-disposal facility.

“When the project’s over, everything gets taken out of there. The pond liners are stripped out and taken to a landfill, the salts are disposed of wherever we can dispose of them. If we can separate the magnesium chlorides from the sodium chlorides we’ll use those to spread on roads. The reclaimed soils could go for reclamation projects – they could go in somebody’s front yard. Nothing’s covered up or buried and left behind.”

In the county’s answer to the complaint, the commissioners’ attorney, Bob Slough, denied that the board’s decision was based solely upon the project not being a listed special use. In their formal findings about their decision, the commissioners stated that the proposal would “generate significant adverse impacts on other property in the area. . .”

However, McClellan maintains that the commissioners had nothing negative to say about the project. “The project is not harmful and the concerns could be mitigated. That’s all on the record. Our attorneys have two pages of quotes from the commissioners saying that.”

He said the board’s vote was based solely on the project not being on the list of 14 special uses. That list is preceded in the code by the statement, “Said special uses include the following.” On Oct. 26, the commissioners voted to table a proposed amendment to change that language to “include but are not limited to,” because of the ongoing lawsuit.

“We don’t see the point in postponing this,” McClellan said. “The decision to change the land-use code is either right or wrong. Either there are only 14 approvable uses or there aren’t. If they decide to leave it that way, there will be an impact to job creation in Montezuma County. Anything that’s proposed from here on out, if that land-use code isn’t changed, and the proposal isn’t on the list, it has to be denied because they’re saying they don’t have the discretion to approve anything other than those 14 items.”

Other industrial uses could of course be approved if industrial zoning were granted to a site, but that can be problematic. In areas where there is no nearby industrial zoning, a new industrial project could be challenged as illegal “spot zoning.” And McClellan firmly believes it’s better to allow ag tracts to keep their agricultural zoning and allow limited industrial uses through the special-use-permit system.

“The whole special-use-permit system is to get away from spot zoning,” McClellan said. “Every oil and gas well isn’t going to be around forever. It could be there 20, 40, 50 years, but those wells are on the list of 14 items. Would you create a little industrial zone for every one of those?

“Our facility would have a shorter lifespan than the oil and gas development around here.”

Opponents of the E & P waste facility had complained that it would be far from temporary and that the McClellans could just open a new facility on an unused portion of their land once they were done with the first site, but McClellan said that would not be the case.

“A pit liner has a 20-year lifespan, after which we would reclaim everything and get out of there. Would we move to another part of the property? That’s not the way we’re going to operate. We’re not asking for a little, thinking that we’ll turn this into so much more. We’re asking for what we’re asking. Where we have it is the best place on the property. We have no interest in expanding it.”

McClellan said industrial activities are critical to economic development in Montezuma County and limiting those to a prescribed list, at least on ag lands, would hamstring the quest to create jobs.

“Look at all the natural resources we have and what comes from them in the area. Oil and gas, coal and lumber, and aggregates, which you use for asphalt and concrete. There’s molybdenum in Rico. Who doesn’t use those on a daily basis?

“Everybody needs these things but nobody wants them – they want them in somebody else’s backyard. The thing about our facility is it wasn’t in anybody’s backyard. I bet within a five-mile radius we didn’t have five neighbors.

“The citizens of this county need to figure out whether we want to be a bedroom community and do away with all these things, or are we going to build a sustainable economic base with the natural resources we have?”

He said preserving agriculture is always mentioned as a priority in the county, but most farmers and ranchers can’t make a living without other sources of income. “I hope every farm and ranch has a gas well on it because that might be what it takes to sustain those farms and ranches and keep them together. There are people right now that will tell you they would have lost their farm years ago if they had not received carbon-dioxide royalties from Kinder-Morgan.”

McClellan said he knows he has made enemies with his proposal and lawsuit, but he is undaunted. “I don’t take any of this personally, and if somebody wants to make it a personal issue, I am still not going to take it personally.

“I’ve seen this happen over and over again. It’s not just this project. There’s a lot of animosity toward industrial activities in this area.” He blames this on “a small core group that raises all the Cain.”

McClellan said he enjoyed his 3 1/2 years on the planning commission (he resigned in July) but has no desire to repeat it. He would still, however, consider a run for commissioner. “I would consider that, yeah. I definitely would.” He backed out of consideration in 2008 because he was moving from one district to another.

But for now, he said, his sights are focused on getting the controversial project reconsidered. “All we’ve asked from the very beginning was that the county commissioners consider our project on its merits and not make a determination based on technicalities in the code.

“So one message I really want to make clear here is that if this county is limited to 14 uses in the rural areas then it will have a significant impact on job creation in this county.”