May 18, 2017 Updated: May 19, 2017 at 8:01 am
There’s a battle raging in Little Turkey Creek canyon southwest of Cheyenne Mountain. Transit Mix Concrete has a lease to quarry millions of tons of granite for construction aggregate over the next 30 years on property owned by the Colorado State Land Board, and the neighbors don’t want their peace, quiet, wildlife or water disturbed.
Let it be said that nobody really wants to live next to a quarry and living in the mountains is quintessentially about the natural environment that draws residents to the area. But that doesn’t mean they should be able to stop another property owner from developing their land as the law allows. Residents have the right to object, but that doesn’t mean that their objections are reasonable or that they can’t be held accountable for what they say.
The Colorado Division of Reclamation, Mining and Safety examined more than 60 issues raised by objectors to the quarry and issued recommendations that dismissed some of the concerns as unfounded. Transit Mix then cut the size of its proposal by more than half and addressed all of the valid issues brought up by the division. But the Colorado Mined Land Reclamation Board overruled the division’s recommendations and denied the permit, citing three concerns, legal access to Little Turkey Creek road, possible harm to nearby water wells from blasting and concerns about wild turkeys and the Mexican spotted owl.
In response, Transit Mix filed a case in El Paso County District Court and served some 90 people who testified in the proceedings with court papers making them parties to the suit. Lawyers for some of the residents claim that this is a SLAPP, or “strategic lawsuit to prevent public participation” intended to threaten and intimidate objectors by forcing them into court where they could potentially end up paying Transit Mix’s attorney’s fees. Transit Mix says that state law required it to make the objectors party to the suit, and on May 10 it asked the judge to drop the attorney’s fees part of their suit, taking that off the table.
Transit Mix alleges that the board relied on unfounded objections as justification for denying the permit, claiming it properly addressed the three concerns upon which the board denied the permit and that the board “abused its discretion and acted in a manner that was arbitrary, capricious, unsubstantiated by the substantial evidence and contrary to law.”
Minerals have to be mined where they are found, and Colorado law protects that specific right pretty carefully. State law strictly regulates development on land where construction aggregate resources are located precisely because it’s a limited but necessary resource that the state doesn’t want development to lock up forever.
Looking at some of the complaints, it’s certainly arguable that the board gave inordinate weight to the aesthetic concerns of nearby residents and the sheer volume of complaints because its reasons for denying the permit appear to be based on opinions, emotions and public pressure not facts. That’s what the district court will determine.
Concerns about wild turkeys and the Mexican spotted owl appear to be environmental-activist spaghetti thrown against the wall in hopes something would stick. But many of the people who are complaining live in the very habitat they want conserved, not that wild turkeys are in any danger of extinction and not that any Mexican spotted owls have ever been found on the quarry property, or anywhere else nearby. So who is actually responsible for loss of habitat, Transit Mix or current mountain subdivision residents?
Private property owners, including Transit Mix and residents in the area, are under no obligation to provide public wildlife habitat. If owners want to erect turkey-proof fences and put netting overhead to keep owls and wild turkeys out, there’s nothing anyone can do to prevent it.
If the residents of the area value turkey or owl habitat so much, perhaps they should move to the city and replace the quarry’s habitat with their own.
But it’s hypocritical to support taking someone else’s property rights while expecting not to be made party to a lawsuit to protect those rights. Free speech is free, but it can have consequences, and this is one such example.
This article was originally published in the Colorado Springs Gazette