A group of scientists and researchers is challenging the conventional notion that dead piñon trees need to be aggressively cleared to reduce the risk of catastrophic wildfire.

However, some fire experts disagree and worry that the researchers’ advice may discourage private landowners from taking necessary steps to protect their rural homes.

In a six-page letter to U.S. Agriculture Secretary Ann Veneman and Interior Secretary Gale Norton, dated Dec. 23, 2003, 13 scientists from around the Southwest urge land managers “to resist pressures to launch ambitious salvage or tree-removal operations in the mistaken assumption that the dead trees constitute a serious fire hazard.”

The scientists argue such efforts could damage the delicate piñon-juniper ecosystem.

Among those signing the letter are Bill Romme, formerly of Fort Lewis College in Durango and now professor of fire ecology at Colorado State University; and Lisa Floyd-Hanna, head of environmental studies at Prescott College in Arizona.

Floyd-Hanna spoke recently in Mancos and Dolores about the newly published book “Ancient Piñon-Juniper Woodlands: A Natural History of Mesa Verde Country,” to which she and Romme both contributed chapters.

That book does not deal directly with the fire-management issue covered in the letter, but discusses the complex and delicate ecology of the piñon-juniper forest. It describes threat to the PJ habitat, such as air pollution, invasive weeds, and habitat fragmentation.

In the Dec. 23 letter, Romme, Floyd-Hanna and the other researchers perceive another threat: too-aggressive thinning. They describe the factors that combined to create the “perfect storm” that is wiping out tens of millions of piñons, as well as ponderosa pines and other species, throughout the Four Corners. Decades of unusually high moisture that prompted excessive foliage in the area, followed by a severe drought and a devastating bark-beetle epidemic.

Now, land managers are wondering how to deal with such an extensive tree die-off, and are contemplating over-zealous thinning efforts, the researchers believe.

They contend that the dead trees will pose a critical fire threat only for a short while, until their needles fall; and that afterwards, the fire danger will be lower than it was when the trees were living, because the foliage won’t be as dense.

“Although dead woody fuel loads will increase dramatically, the actual risk of damaging crown fire will likely DECREASE in many pinyon-juniper woodlands,” they write, “because the mass and continuity of live canopy fuels will be reduced once the dead needles fall from the trees (which occurs usually within about a year of tree death).”

After that, they maintain, the risk of catastrophic wildfire will be even less than it was before the tree die-off because there won’t be needles left to burn in the crowns.

“Large, intense fires in southwestern pinyon-juniper woodlands almost always occur as wind-driven crown fires under conditions of extremely low humidity and fuel moisture,” as the recent major fires in Mesa Verde National Park demonstrated, they state.

Crown fires primarily burn the live needles and small twigs of trees, “not the coarse wood of stems and branches.” The researchers believe that although dead needles may ignite more easily, drought-stressed live needles burn more intensely because they contain highly flammable compounds called turpenes, which disappear when needles die.

The moisture conditions and density of the living trees are more important factors in wildfires than how much dead matter is on the ground, the researchers believe. “The death of large numbers of canopy trees actually reduces the mass and continuity of canopy fuels, once the dead needles fall,” the letter states.

As the piñon limbs and trunks decay and fall, the fire danger will decline even further, the scientists believe. Piñons begin to fall apart within a few years, they say.

Although clearing the dead trees might still seem prudent, the researchers believe it could have unfortunate ecological consequences, including:

• Damage to the delicate biotic crust on desert soils.
• Harm to piñon seedlings not affected by the beetles. In addition to possibly being trampled or chewed up by a hydromower, the seedlings could die if the dead wood they use as protective shade is removed.
• Removal of dead trees that are depended on by wild animals for homes and hiding places.
• Invasion by noxious weeds such as cheatgrass.

The letter supports localized fuel reduction to protect structures or other important resources, but argues against “extensive salvage efforts.”

“We urge a reevaluation of ongoing and planned pinyon-juniper thinning operations, in the interest of preserving the healthy pinyon trees that have managed to survive,” the scientists conclude.

But Phil Kemp, a forester with the Mancos-Dolores District of the San Juan National Forest, doesn’t buy all of the researchers’ arguments. He shares their concerns about noxious-weed invasions and destruction of seedlings, but he doubts their conclusions about the quick drop in wildfire risk.

“It’s our belief that the (wildfire) risk may not be particularly reduced for up to 20 years” after the trees die, Kemp said. Until then, when the trees are thoroughly decayed, the risk will remain high, he believes.

“Prior to that,” he said, “you have more fuels on the ground – drier fuels which tend to carry a fire better – and you also have probably an increase in grass, forb and shrub growth because you’ve reduced the tree canopy,” allowing more sunlight and moisture to reach the ground.

“Just the trees dying doesn’t mean to me that the risk of fire is at a level where we don’t need to worry,” he added.

Kemp also doubts that any widespread thinning of dead piñons is feasible on public lands outside the “urban-interface zone,” adjoining private lands and structures.

“Our focus has been to reduce fuel loads in those areas around private lands, homes, developments, etc.,” Kemp said. “The money we have to treat fuels is going to be focused on the wildland-urban interface.

“If you look at something like the Disappointment Valley, for example, we will probably be doing a little (fuels-reduction) treatment in spots, but by and large there won’t be either the money, or the emphasis for what money we do have, to put it into (remote) places like that.”

Kemp said two hydromowers – giant mowers that chew up trees and brush – are currently being used to thin trees on BLM lands in the local San Juan Resource Area. One is operating just south of Summit and Puett reservoirs, and another is at work in the Aqueduct area directly northwest of Mancos between highways 160 and 184.

Some other BLM areas targeted for future thinning include land west of the Indian Camp Ranch development in western Montezuma County; tracts east of Egnar; and an area south of Highway 160 between Cortez and Mesa Verde National Park. All are near private land, Kemp said.

Public-lands managers ARE concerned about potential damage to piñon seedlings, he said. Hydromower operators have been told to avoid seedlings they see, and operators are also leaving some patches of vegetation untouched.

“We have a concern and we are going to lose some of the smaller, younger trees as we operate our equipment, but we’re trying to reduce that loss,:” Kemp said.

He said references in the letter to “extensive salvage efforts” are misleading because no such efforts are planned locally.

“We’re not doing any real salvage of P-J,” he said. “We’re offering some of this dead material as personal-use firewood but that’s a drop in the bucket” compared to the countless acres of dead trees that won’t be touched.

“We’ve got no other salvage efforts under way,” Kemp said. “Piñon is not a high-value woody species.”

But Floyd-Hanna, contacted by phone, said – though she has received no reply from Norton or Veneman – she has heard from BLM employees in Arizona that more extensive thinning and salvage may be planned in that state.

“There’s a question about the definition of what is urban interface,” she said. “They say they’re going to stay in areas mostly that are threats to urban areas, but I’ve heard from the BLM in Arizona that there is pressure for them to go into other areas that might be deemed important.”

A major reason for not rushing into fuel-reduction projects is that there is little information about how they affect the PJ ecosystem, she said. “We don’t have any good data on how well restoration works there. We do with the ponderosa pine, but we don’t have that with piñon. Our fear is that they’ll be starting with no real restoration plan that’s been tested.”

She agreed that thinning efforts such as those undertaken at Mesa Verde certainly can be successful in saving structures. For instance, cleared sites in the park provided a staging area from which firefighters could battle the 2,600-acre Long Mesa Fire in 2002.

But she hopes fire officials aren’t giving landowners the impression that thinning can save their personal patch of forest. The thin-barked piñons, unlike ponderosas, are very sensitive to even low-level fires and will die, she stated.

“You won’t be introducing a surface-fire regime that will allow the trees to survive,” she said. “They don’t.”

She said the researchers have run numerous fire models and believe the flammability of the piñons will go up for a short period, maybe a year, and then drop. “The destruction we might do by cutting them all down might be worse,” she said. “We’re recommending people not do anything, from a conservation standpoint,” except in areas immediately near their homes.

Kemp, however, maintains that somewhat more extensive thinning efforts remain critical for protecting structures. “I’m a little concerned that this letter will result in some complacency about fuel conditions and the risk of catastrophic fire,” he said. “If you were to read this, you would think, a year after these trees die, everything’s going to be OK and I’m just not convinced of that.”

“Ancient Piñon-Juniper Woodlands: A Natural History of Mesa Verde Country,” is available at Maria’s Bookstore in Durango. It can be also ordered through Main Book Company in Cortez or the Dolores Bookstore in Dolores.

In response to recent articles regarding the Mancos Marshal’s Office, ex-deputy Wesley Short has asked to tell his side of the story — the story of his employment with and dismissal from the marshal’s office.

Short contacted the Free Press after last month’s article on Steve O’Neil, the new marshal in town. He said he was “tired of everything being so one-sided” and wanted “to tell the truth of what happened.”

The truth, he said, is that the town of Mancos doesn’t really want its law officers to do their job.

Short was terminated as a deputy on Nov. 13, after being placed on paid administrative leave following allegations that he had harassed some patrons of the Columbine Bar and had used unnecessary force. Short was still in his six-month probationary period, so no reason for his termination had to be given.

Marshal David Palacios, who had defended Short, resigned shortly thereafter. O’Neil was later chosen to replace him.

Short believes he did not deserve to be terminated, that he was a good deputy.

According to Short, when he was hired the town of Mancos was a “mess” and needed help – help that he was prepared to give. Mancos, he said, was a hotbed of drug deals, DUIs, speeding and other illegal activities. Supposedly, the three deputies prior to Short’s term were doing little about these problems.

The town board did not fully support efforts to strengthen law enforcement, Short said. When he was hired, he said, about half of the seven members of the town board wanted to see the town cleaned up and the rest wanted things “left alone.”

“Mayor (Greg) Rath was on the fence and Town Administrator Tom Glover was the main reason that the entire town was in this uproar,” Short said. “Glover was trying to control the marshal’s office without any law-enforcement experience.”

In response to this allegation, Glover said, “The town board has it set up that the marshal reports directly to me, so I was just doing my job as his supervisor.”

Short said he had a good record of dealing with problems such as speeding and drunk driving in town. He says that when he was interviewing for the job, he was asked if he was willing to write tickets, which he was.

According to Short, he brought in at least $2,500 in revenue from tickets issued in the speed zone on Highway 160 and nabbed 17 DUIs in one month. “I was doing my job just like they asked me to,” he said.

He claimed that he and Palacios also chased three known drug-dealers out of town, helping to clean up the streets of Mancos. “We were letting them know that they were being watched. We were so vigilant that they went to look for greener pastures,” he said.

When asked about the dispute over his treatment of Columbine patrons, Short responded, “People at the Columbine want to do whatever they want.”

Problems began in September with the arrests of several Columbine patrons, including Don Higman and Leslie Feast, both of Mancos, who accused Short of using unnecessary force against them. Feast said that one night in September she stepped out of the Columbine to let her dog out of her truck and that Short threw her against a fence and arrested her for DUI.

Higman said, on Oct. 3, after a verbal altercation between him and Short inside the Columbine, Short threw him onto the bar. Higman was arrested on charges of obstructing police and disorderly conduct.

Some bar patrons had also complained that Short hung out in the bar, counting people’s drinks and making them feel intimidated.

But Short said his visits into the bar were to check for underage drinkers and that he “never used force as an officer. If you have to physically put someone’s hands behind their back, it’s not force, it’s for officer safety.”

He said every time he arrested someone from the bar, there were at least “30 or 40 spectators siding with their friend or family member,” making it difficult to do his job.

Short said he does not yet know why he was fired. “I have never seen a complaint on myself – I am an excellent officer. They have never given me a reason for being dismissed.”

Glover responded, “We reserve the right to let someone go during their six-month probation period without giving a reason.”

Rath said Short’s termination was not because of the allegations of harassment and police brutality made by Columbine patrons.

“I witnessed the arrest of two of his accusers and, in my eyes, I saw no brutality,” Rath said. “However, something came to our attention and it was decided by the town administrator to let him (Short) go because he was on probation. We felt that Short was not going to fit what we wanted in Mancos.”

Short believes it all goes back to folks not wanting things to change in Mancos. “The town wants a show to be put on by the marshal’s office but they don’t really want results,” he said.

He feels that Palacios also bore the brunt of this apathy. “Palacios was doing the best job he could. The town just wanted to get rid of him because he was being a true officer.”

Palacios resigned, according to Short, because “he was talked down to, not allowed to do his job and he was backing me (Short).” He added, “Being voted back into office was more important than supporting what you’ve asked people to do.” Rath is up for re-election this year.

Glover denied such allegations. “That’s just not true. Of course we want the marshal to do his job.”

Short is currently awaiting trial on charges stemming from a Nov. 20 incident in which he allegedly held his ex-wife at gunpoint in her home — charges he says are not true. He has children in the area, a son from his first marriage and two daughters from his second, and he hopes to remain, although he guesses that his career in law enforcement is “ruined.”

But, Short said, “I would rather stay here and dig ditches than lose my kids.” He will probably have a better idea of what direction his life is going to take after the trial is over.

(Second in a two-part series) Click here to read Part I

The quality of air throughout the Four Corners has slipped in recent years, partly because of rampant energy development in northwestern New Mexico.

Now, the federal government’s plan to allow more oil- and gas-drilling on those public lands, without significant pollution controls — despite admitting it will violate air-quality standards for health — has forced opponents to go to court.

The Bureau of Land Management’s decision to significantly expand private oil- and gas-drilling in the Four Corners region violates federal environmental law and ignores American Indian religious rights, according to a lawsuit brought by a coalition of energy watchdog groups, the Navajo tribe and individuals.

“They see it as a sacrifice zone for energy development, but the communities who live nearby are not ready to be sacrificed,” remarked Dan Randolph, oil and gas specialist with the San Juan Citizens Alliance, a Durango-based nonprofit. “We do not believe that the area should be a single-use landscape.”

The alliance, along with the Oil and Gas Accountability Project, Natural Resources Defense Council and three Navajo governmental chapters, filed the complaint in Washington federal court last month. The 45-page complaint argues that the government did not follow due process and has shoddy environmental controls for clean air, species management and Native American cultural resources.

The New Mexico Cattle Growers Association has also offered comments expressing serious concern about the information the BLM’s decision was based on.

The BLM gave the initial go-ahead in 2003 for 10,000 more oil and gas wells on 1.4 million acres of public lands in a high desert region around Farmington, N.M., that currently has 18,000 of them.

The growth rate is expected to be 500 new wells per year over the next 20 years. In Southwest Colorado, the plans include 500 new wells, with the accompanying new pipelines, roads and compressor stations needed for delivery.

The expanding spider-web of roads and pipeline that led to thousands upon thousands of polluting pumping stations, wells and drilling rigs in the San Juan Basin is so vast it can be seen from space. But the methods used to extract the country’s largest natural-gas reservoir have also affected local ranchers, neighborhoods and downwind communities such as Aztec, Bloomfield, Cortez, Durango, Bluff and Moab.

Industry, feds balk at affordable solution

Visible as a yellow-brown haze on the horizon, the pollution from coal-fired power plants, drilling operations and the combustion-fueled compressor stations contributes to ozone and haze, a health hazard for active adults, children and especially asthma sufferers.

Monitors at Mesa Verde National Park prove air quality in the region is suffering from current energy operations nearby. Under the Clean Air Act, ground-level ozone measurements cannot exceed 84 parts per billion during any three-day rolling average. In a recent summer the level spiked to 72 parts per billion at the park, and this winter it has shown signs of a gradual, but steady increase into the mid-60s. Anything above 50 ppb is considered a health hazard for vulnerable people as well as for plants and animals.

One major contributor to ozone is nitrogen dioxides, a by-product of engine combustion from pipeline compression stations and from coal-fired power plants. When nitrogen dioxides combine with well-site emissions known as volatile organic compounds and then are hit by sunlight, toxic, invisible ozone is created.

One solution ignored by the BLM was requiring the industry to install catalytic converters on all new compressors, or some similar pollution-control technology. Experts predict that that measure would be enough to counter the cumulative pollution impact of so many new compressors, thereby keeping regional ozone levels at a safe level.

“In Wyoming they are achieving emissions on well-head compressors of less than one gram of nitrogen dioxide per horsepower hour and there are other technologies such as lean burn that work well too, but the BLM is not requiring any of that,” Randolph said.

It is estimated that each compressor could be fitted with a catalytic converter for $1,000. That’s an estimated price tag of between $10 million and $20 million, assuming each of the 10,000 new wells requires one or two compressors each.

“For an industry that makes hundreds of millions per year in revenues from that single basin, the one-time investment for pollution controls does not seem like much. It’s shortsighted not to do it,” stated Bruce Baizel, staff attorney for the Oil and Gas Accountability Project.

In 2002, all of San Juan County, N.M., produced a staggering $4.5 billion in revenues from natural gas, according to San Juan Citizens Alliance data.

So why the holdout?

“It’s a struggle between the coal-fired power plants and the oil and gas industry to see who will be forced to pay; they are pointing fingers at each other,” explained Baizel. “I think it is fair to say they want to systematically chip away at the Clean Air Act in the push to implement the government’s National Energy Policy” of increased domestic production.

For example, in a section of the Clean Air Act known as “new source review,” reform is being pushed through that lessens pollution controls for expanding power-plant production. New Mexico has sued over the reform, as have 12 other mostly Eastern states, but not Colorado.

“They figure this is a way to make sure everyone gets the message to move ahead and push projects through in the hopes nobody will challenge them. Now that we have, we hope a judge will make them go back and rewrite their (BLM) management decision based on the knowledge that they admitted violating the Clean Air Act,” Baizel said.

Requests for interviews with New Mexico oil and gas industry officials were ignored. The BLM does not comment on pending litigation.

However, according to the Four Corners Business Journal, industry officials have been told by the BLM that its management plan was solid and that it would “prevail” in the lawsuit.

Industry officials have also argued that the BLM would halt development if it begins to violate federal standards.

Coal-fired power plants are also major contributors to regional air pollution. In February, a federal district court judge in New Mexico ruled against the Public Service Company of New Mexico regarding air-quality violations alleged against its San Juan Generating Station.

The lawsuit by the Sierra Club and Grand Canyon Trust, which was filed in May 2002, charged the plant with violating the federal opacity limit more than 60,000 times in the past five years.

The company, known as PNM, had argued that water vapor emitted by the plant had contributed to the increased opacity readings, but could not provide hard data on how much of the opacity was caused by steam, which is acceptable, and how much by particulates.

The case is not over. In the next phase of the trial, PNM is expected to provide more detail on the content of its emissions, according to the Farmington Daily Times.

Asthma rates on rise

Currently Colorado has the second-highest asthma rate in the nation, with an estimated 7 percent of the population thought to have the chronic disease, according to the Centers for Disease Control. But while ozone pollution is a major contributing factor to asthma, efforts to fund a $14,000 monitoring station in Durango have been dismissed.

“We’ve been pressuring the state for years, but the funding is not there,” reported Wano Urbonas, environmental health director for the San Juan Basin Health Department. “The trouble is we do not know what the levels (of ozone) are here, and that is worrisome because just across the border (in Aztec and Bloomfield) the levels are known to be high.

“We are encouraging the state health department to play a bigger role in Southwest Colorado because ground-level ozone can travel up to 100 miles away” from its source.

Children are especially susceptible to asthma. According to the Colorado Asthma Program, children between the ages of 1 and 15 are the hardest-hit group. National statistics have shown that the number of children with asthma more than doubled between 1980 and 1995, with rates for children under 5 years old increasing over 160 percent during the same period.

Heavy exercise during high ozone days could have negative medical consequences for healthy people as well, experts warn.

“Athletes have high minute ventilation, which means they are huffing and puffing a lot more,” explained Dr. Donald Cooke, an asthma specialist in Durango and Cortez, “and so when ozone levels are in the dangerous parts-per-billion ranges they are breathing in more than what is considered safe amounts.”

He cited a study performed in Los Angeles where two sets of joggers were analyzed for asthma occurrence: one that ran regularly near crowded highways and one group that did not.

“What they found was that those exercising near freeways had an increase in asthma occurrence,” Cooke said. “But here I do not believe it is a real concern yet.”

However, he added, athletes in communities nearer to the power plants, such as high-school track teams, should be concerned about workouts in high ozone days, “that is, if they had some way of knowing the levels.”

Scenic views fade

Most visitors to national parks and wilderness areas expect clear visibility, and the most natural air quality possible is required by federal law.

Mesa Verde Park is no exception, and the Weminuche Wilderness must also adhere to the Class I standard under the Clean Air Act. But because of a bureaucratic loophole, the nearby Lizard Head Wilderness is exempt from the highest standard under the act.

Air-monitoring takes place at Mesa Verde and the Weminuche but not at Lizard Head, said Jeff Sorkin, regional air-quality specialist with the Forest Service. Visibility and acid-rain data from the Weminuche wilderness has been collected but are still being analyzed, he said. Trend results are expected in the near future from stations on Wolf Creek Pass and on Shamrock Mines Mountain near Bayfield.

The placement on the southern edges is to pick up air-flow patterns coming from the south into the wilderness, significant because of the high pollution factor in northern New Mexico coal and gas fields.

“We monitor the wilderness areas to determine if there are any changes in air quality so we can protect the ecosystem,” Sorkin said. “We want to be able to do corrective management and mitigation if necessary.”

Clear views are very important for visitors at Mesa Verde National Park, said Natural Resources Manager George San Miguel of the park.

“When it is limited because of haze, it is something visitors notice right away,” he said, “There is a real sense of urgency when they go to an overlook and say, ‘I cannot see very far today.’”

Visibility varies quite a bit from day to day at the park, San Miguel said, but can be especially bad on stagnant days in the heat of summer. When haze is thick, it has a negative impact on the visitor experience.

“It’s more than just ‘it’s hazy — what a drag,’” he said. “A visitor’s ability to see what the life of an Anasazi was like is damaged when there is an inability to see what the landscape looks like. The Anasazi depended on the ability to see their neighbors, to see distant objects and navigate by them.

“So it is more than just aesthetic — smog affects our ability to filter out the modern world when we are trying to learn about the ancient world.”

Locals such as M.B. McAfee of Lewis, who’s lived most of her life, notice the change as well.

“You could see Shiprock every day from every viewpoint in the area,” she recalled. “Then the brown cloud started to appear in the ’80s and now Shiprock is obscured by haze, even invisible some days.”

The lawsuit against the BLM does not call for an injunction to halt production until a improved plan is created, but plaintiffs are considering that move. Meanwhile, a response by the BLM is expected in April, lawyers say.

“We’re not trying to shut them down; we are not saying there should not be any drilling,” concluded Randolph. “But we are saying that it can be done right with new technologies that still make a profit, and without forever destroying the landscape.”

Prosecutors, who are enforcers of the law, have higher ethical duties than other lawyers because they are ministers of justice, not just advocates. . . . they must be forever vigilant that their conduct as attorneys not only meets the minimum standards of conduct, but they must strive to exceed those requirements.

-Office of the Presiding Disciplinary Judge of the Colorado Supreme Court in a 2001 case, People v. Paulter

District Attorney Joe Olt, chief prosecutor in the 22nd Judicial District, will be sitting at the defense table later this month when he goes to trial in Denver on four claims of prosecutorial misconduct.

Durango criminal defense lawyer Will Herringer, who represented a man accused of assaulting two deputies during an attempted escape from the Montezuma County Jail in 2001, filed the complaint against Olt last fall with the Presiding Disciplinary Judge of the Colorado Supreme Court. A trial has been set for March 23, 24 and 25, according to Tammy Rush, the court’s administrator.

Dennis Hicks, the defendant in the case, was ultimately allowed to plead guilty to a single count of second-degree assault and serve a four-year prison term, with 19 other charges, including far more serious felonies, being dismissed.

Herringer’s complaint alleges that Olt:

• Improperly interviewed his client, Hicks, then 50, in March 2002, without first ascertaining whether Hicks was represented by counsel, which he was. During that tape-recorded interview, Hicks admitted he’d committed the assaults while trying to escape from jail, but offered an explanation that was later ruled “potentially exculpatory,” i.e., information that could be used in his defense. Herringer was not made aware that a recording of the interview existed until more than two months later.
• Failed to notify Herringer, as required by law, of a subpoena for his client’s medical records, thereby depriving him of a chance to object. The Rules of Criminal Procedure require a copy of any such subpoena be sent to the opposing counsel and include a return date when the subpoena can be contested.
• Improperly obtained those medical records without Hicks’ consent, thereby violating his right to privacy under Colorado law. Herringer pointed out that a Colorado statute makes the unauthorized taking or copying of a person’s medical records a criminal act.
• Intentionally misled Hicks concerning the use of information he had previously provided the DA in a murder case by allowing the DA’s investigator, Hugh Richards, to imply that the Public Defender’s Office had inadvertently obtained the information through “a leak.” Olt, the complaint alleges, did nothing to correct this impression by telling Hicks the truth – that disclosure of Hicks’ statement to defendant Shaun Murphy’s attorney was required by law.

In his written answer to the four claims, dated Nov. 17, 2003, Olt, through his attorney Frederick Martinez, denies any substantive violation of the rules of professional conduct, while admitting many of the facts cited in Herringer’s allegations.

Reprimanded by Hansen

Elected in 2000 with almost no experience in criminal law on either side of the courtroom, Olt was reprimanded by District Judge Sharon Hansen (in an order on Dec. 20, 2002) for withholding evidence and other improper conduct concerning some of the same issues in the Hicks case, and the defendant’s statements to investigators were suppressed, partly as a sanction, or punishment.

In his complaint Herringer notes that Hansen had already found Olt culpable of misconduct in the Hicks case. Hansen also had observed that in other criminal cases Olt failed to disclose evidence in a timely manner during discovery, the procedure in which each side must reveal to the other whatever evidence it possesses related to the case.

“The prosecutor’s office has repeatedly been warned about failure to make timely discovery available,” Hansen wrote in her order. That order suppressed all statements made by Hicks during the March 2002 interview with Olt and Richards, and, as a sanction for improper conduct, the statements Hicks made during an earlier interview conducted by Richards and a sheriff’s detective.

“Here disclosure of very important, potentially exculpatory information was not conveyed to the defense counsel,” Hansen noted, until more than two months after it was obtained.

‘Self-serving characterization’

In his response to the complaint, Olt admits that Hansen had entered an order concerning prosecutorial misconduct and that it referred in part to him, but denies Herringer’s “self-serving characterization of the (order), or any opinions, quasi-factual/legal conclusions contained within the Order.”

Olt further denies that any attorney/client relationship existed between Herringer and Hicks when he interviewed the defendant on March 4, 2002, even though Herringer had been appointed by Hansen on Feb. 28.

Olt states he does not recall the notice of Herringer’s appointment “crossing his desk.” He also admits that he did not know his office had sent Herringer discovery documents about Hicks in late February, several days before the interview. Olt states “the interview proceeded due to Mr. Hicks waiving his right to counsel….”

Olt admits that he failed to look at Hicks’ file before the interview, but denies he “did not make efforts to learn whether Mr. Hicks was represented.”

Additionally, Olt denies that he’d misled Hicks by leaving him with the impression any information he supplied regarding other crimes wouldn’t be revealed to a defense attorney in a subsequent prosecution.

‘I can stop the leak’

Olt admits he subpoenaed Hicks’ medical records from Bloink, but denies not sending a copy of the subpoena to Herringer.

Hicks had requested a meeting with Olt to talk about making a deal to trade information for a lenient sentence, court records show, but Richards and another investigator interviewed him the first time, on Jan. 9, 2002, promising to tell Olt about his proposal.

Hicks admitted to the escape attempt, during which he struck two jail guards with a metal bar, but maintained he hadn’t been able to sleep for four days before this, was overmedicated with prescription drugs and under the influence of a fellow inmate who had supplied the weapon and kept telling him he had “nothing to lose.”

“I had a lot of respect for both of (the deputies),” he said to Richards. “I didn’t want to hurt ’em – that’s why I just tapped them on the head and told them to lay down.”

Hicks claimed he could identify a person who had committed four murders in Salt Lake City, Utah, but was afraid of retribution. Salt Lake City police later told the DA’s office they had no record of any such murders.

On March 4, 2002, Olt met with Hicks.

According to the transcript of that interview, Hicks, who had asked to speak to the DA personally about the possibility of a plea bargain, was assured by Richards in Olt’s presence that any information he might supply about another murder of which he claimed knowledge would be kept under wraps.

“I can stop the leak right now,” Richards said. “Right here I can stop it.”

But the law requires that evidence acquired by either side in a criminal case be shared with the other side.

Discouraged from representation?

In his complaint, Herringer also alleges that Olt, after informing Hicks of his Miranda rights, improperly discouraged him from obtaining a lawyer if he wanted to make a plea bargain.

“The implication was that Hicks would not be able to reach an agreement with the DA’s office if he obtained counsel,” Herringer stated in the complaint.

In the transcript of the March interview, Olt tells Hicks, “If you are thinking of getting a public defender, they are not going to allow you to talk to us.”

In his answer to the complaint, Olt denies that he’d implied during the interview that Hicks wouldn’t be able to get a plea bargain if he obtained defense counsel, but admits telling Hicks that if he retained a public defender, the public defender wouldn’t let Hicks speak to the DA’s office.

During the first interview with Hicks in January, Richards also made reference to the complications involved if Hicks obtained a lawyer, which he hadn’t done at the time.

“Now if you get a public defender, you have to go back . . . through . . .all the business with a lawyer,” Richards is quoted in that transcript.

Hicks then replied, according to the transcript, “If it (a plea bargain) is possible, I could do it without him (an attorney).”

In his answer, Olt and his attorney also maintain that Olt’s conduct “did not involve the requisite state of mind necessary to constitute a violation of the Rules of Professional Conduct in question.” (In other words, Olt contends that if in fact he violated any of the rules, it wasn’t intentional.)

They also argue that “any discovery violations regarding this issue have been resolved by Judge Hansen,” citing a Supreme Court opinion that states, in part, “we have an attorney grievance system that is ill-suited to addressing any but the most serious discovery violations,” a system designed to “shift the emphasis from punishment to prevention . . . (and to) protect the public as well as educate attorneys.”

Olt declined to comment on the matter to the Free Press.

For one night, Mancos’ Grand Ave was transformed into New Orleans’ famous Bourbon Street. On Feb. 21, the town hosted its first annual Mardi Gras Ball, a benefit for the Community Center and Mancos Opera House. Despite stormy weather and hazardous road conditions, there was a great turnout for the event of the season.

The day began with a pet parade to benefit the new town park. Then, as the sun went down and the night turned sultry, the gala began.

The ball was the brainchild of Mayor Greg Rath, this year’s Mardi Gras captain, town Clerk Amy Philips and Cultural Affairs Director Denise Stovall- King. Last year the three traveled to Galveston, Texas, to check out that town’s Mardi Gras celebration.

Rath said, “Galveston’s celebration started small and has grown to almost rival New Orleans. We wanted to see if it was possible for us to do the same.”

The idea was to provide an exciting event during the time of year when folks are going stir-crazy. Besides providing an opportunity to get out, the celebration was to raise money to subsidize both the new kitchen in the community center and to aid in the restoration of the Mancos Opera House, where the ball was held.

For those who have never visited the opera house, it is a place to be seen. It invokes nostalgia for the theater days of the 1940s. Although, for Mardi Gras, the opera house looked less like a theater and more like a French Quarter courtyard complete with fountain and hanging Spanish moss.

Instead of actors, the stage was graced by singer Joyce Simpson and her band, her voice adding a romantic touch to the night. Later in the evening, as jazz gave way to Zydeco and techno music, dancers of all ages alighted, providing everyone an opportunity at center stage.

Mardi Gras is the traditional end to Carnival, the season of merriment which begins on Jan. 6, the Twelfth Night, and ends on Fat Tuesday, the night before Lent begins. Because it signifies the beginning of Lent, there is much feasting and fun associated with Mardi Gras.

True to tradition, there was an exorbitant amount of decadent food at Mancos’ Ball: gumbo, jambalaya, crawdads, red beans and rice, spicy fried chicken, oysters on the half shell, and fried shrimp. Much of the food was actually flown in from New Orleans and all of it was prepared by Rath, Philips, Nikki Elmore, Kelli and Kaelan Yeomans and Denise Miliken. It was a sumptuous spread. On top of the traditional fare, there were cheesecakes, crème puffs and traditional hurricanes, which were a huge hit.

Also vital to a true Mardi Gras celebration are the costumes and masks. Folks really put on the nines for this magical night. There were velvets, sequins and feathers galore. Many of the costumes came from the Costume Emporium in Durango and were rented at a discount by attendees. One couple, Linda and Philip Walters, who dressed as Marie Antoinette and Marc Anthony, were crowned Mardi Gras king and queen.

Besides the help from the Costume Emporium, many other donations were made from local businesses: beer from the Durango Brewery, wine from Guy Drew Vineyards in McElmo Canyon, and decorations from the Cliffrose, to name a few. The Ute Mountain Casino sponsored a $1K table.

Did the gala event meet the expectations of those who hosted it?

“Yes,” replied Rath. “It was a huge success for our first year.”

Besides coming up with the idea and cooking for the evening, Rath also handled invitations, inquiries and many of the planning details. He says that he couldn’t have done it without the help of the volunteers and is very appreciative of their time and energy. Just to add to the mayhem of preparing for the town’s biggest event, Rath’s dog broke his leg while marching in the pet parade earlier that day, which had Rath at the vet for several hours in between hanging moss and shucking oysters.

In financial terms the evening was also extremely successful. Close to 140 people attended, coming from Montezuma and La Plata counties, Farmington and even Grand Junction. Unfortunately, due to bad weather, many from Durango were unable to attend. In addition to ticket sales, individual donations came from folks as far away as Connecticut.

At press time, the total dollar amount raised was over $10,000 and there are still donations coming in. After everything is paid for, the proceeds will be split between the Community Center and the Opera House. Both will be receiving substantial amounts to help with restoration and remodeling. What about next year? Rath hopes to have enough people attend to fill both the Opera House and the Community Center. “This first year’s event proved to be much more successful than I could have imagined. It has already outgrown the abilities of a small group of volunteers,” Rath said. “We’ll have to take it up a level next year.”

He also hopes to make it more affordable for more people in the future.

Town Administrator Tom Glover’s thoughts on the evening were also positive.

“It was fabulous! I was surprised and thrilled by the turnout. It was wonderful to see so many people supporting two vital community projects.”

He added, “Thank you to everyone.” Laissez les bons temps rouler! (Let the good times roll!)