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South of the Border

Fremont County's quarry free-for-all erupts in bitter lawsuits, sweet government contracts and a threat to the Mexican Spotted Owl



Some people gripe when the mountain next door is being ground to gravel.

And in the case of Red Canyon Quarry south of Colorado Springs, neighbors have protested a wealth of grief.

They say loaded semi-trucks from the quarry speed up and down the rural road in front of their homes. They claim that the trucks kick up dust and run before and after the quarry's legal hours of operations. They protest that the quarry has diverted the creek that runs through the area, causing floods and depositing sediment and rocks onto their property.

The owner of Red Canyon Quarry, Bob Stack, is a retired Army colonel. He's made some enemies, and plenty of friends. His business partner holds the exclusive and very lucrative contract to rebuild the roads at the area's five military installations, including Fort Carson. Stack continues to manage the downrange training operations at the 137,400-acre Army base.

Stack has consistently denied that his quarry has ever violated any of dozens of rules required by a myriad of oversight agencies.

The colonel doesn't like people to complain to the government about his quarry. And when they do, he sues them. And sues them. And sues them. And sues them.

But Stack might finally have met his match: a 16-inch tall Mexican Spotted Owl.

Two owls and a fledgling

The Red Canyon Quarry is just over the Fremont County line west of Highway 115 and about 17 miles south of Colorado Springs toward Cañon City. Stack leases the land from the State of Colorado, which owns the 380-acre parcel at the edge of the proposed Beaver Creek Wilderness Area.

The remote area is boxed in by U.S. Forest Service and Bureau of Land Management property to the west, north and east. To the south is a sprinkling of rural homes.

Two years ago, Stack and his business partner, Rocky Mountain Materials and Asphalt, secured a permit to expand the quarry operation to 91/2 times larger than its current size -- from 40 acres to 380 acres. But there was a condition -- the state and federal land is also prime habitat for the threatened Mexican Spotted Owl, protected under the federal Endangered Species Act.

The spotted owls -- along with a fledgling born last year -- who live in Red Canyon are three of only 15 known to exist in the entire State of Colorado. Surveyers conducting a study last year for the U.S. Forest Service and the Bureau of Land Management were delighted to discover the little fledgling owl. The Red Canyon pair were the only known owl couple in the state that successfully mated.

That suggests that the pair has a strong bond and that there is "obviously enough food in that canyon to raise their young," said Stephen Vaughan, a wildlife photographer and president of the local chapter of the Audubon Society.

In 1997, as part of their expansion permit, Stack and the quarry's manager, Rob Mangone, agreed their operation would not encroach on the owls' habitat. Both the U.S. Fish and Wildlife Service and the Colorado Division of Wildlife expressed concern over the proposal to expand to such mammoth proportions.

"Mining activities will destroy habitat used by the owls and may disturb the owls to an extent that they abandon the area. Destruction of habitat or disturbance causing the owls to leave the area could be considered a 'take' under the Endangered Species Act," warned Richard P. Krueger, then-acting assistant field supervisor for the Fish and Wildlife Service, in an April 9, 1997 letter.

During their 1997 negotiations, the mine's operators promised federal agencies they would not cross a designated buffer zone.

Over the line

Jim Lockhart, president of the Pikes Peak chapter of the Sierra Club, believes that the quarry has breached that line. His field observations suggest the quarry has already leveled the landscape well beyond the buffer zone -- posing a direct threat to one-fifth of the state's known population of spotted owls.

"I've seen some equipment up there which suggests to me they are trying to quarry it," he said. "They've clearly cleared the area, including the trees, and prepared it for quarrying. They've possibly gone beyond the area that impacts owl habitat."

In addition, the DOW in 1997 recommended the quarry operation only be allowed to expand 12 acres at a time. However, the operation currently encompasses about 40 acres, Lockhart noted.

"It's not clear to me who, if anyone, had responsibility for ensuring the quarry didn't extend beyond the line," Lockhart said.

Lockhart recently outlined his concerns to the State Land Board during its Feb. 11 meeting, where he asked the governing body that oversees Colorado-owned lands to delay an automatic renewal of the quarry's lease until the situation is investigated.

"The threat is not in doubt," Lockhart told the commissioners. "The time has come to determine whether and on what terms the expansion of the quarry can continue."

The sheer number of state, federal and county agencies that also have various oversight obligations over the Red Canyon Quarry -- ensuring all regulations are being complied with -- is mind-boggling, Lockhart noted.

The state water division and health department oversee some aspects, the U.S. Fish and Wildlife Service regulates others. In addition, the Army Corps of Engineers is involved, as is Fremont County, the Mined Land Reclamation Board, the state Department of Natural Resources, the federal Bureau of Land Management and the U.S. Forest Service.

"Frankly, when I go around to ask questions (at the various government agencies involved), I get told to 'check with Minerals and Geology.' But then the people at Minerals and Geology say, 'call Fish and Wildlife.' But then Fish and Wildlife says, 'call BLM, they are the folks who know about the agreement.' But then BLM says, 'we don't know, call Fish and Wildlife.'

"That's why this whole mess needs to be straightened out," Lockhart said.

The Sierra Club chapter president called for a habitat conservation plan to be prepared to ensure the owls' habitat is not further encroached. And, he bemoaned what he perceives is a breakdown in communication between government agencies -- which has resulted in the quarry operators' confusion over the lines of the boundaries that had been set in place.

Feet dragging

Testifying at the land board hearing, Stack and quarry manager Mangone vehemently denied that they had encroached on the owl's habitat, and Stack blamed the alert on people who "don't like our quarry."

Stack told commissioners that he is familiar with the Mexican Spotted Owls and their habits, in part because he is the downrange manager at Fort Carson, parts of which have also been identified as Mexican Spotted Owl habitat.

The downrange area is where soldiers set off bombs, fire heavy artillery and where fighter jets frequent the skies overhead. All this action doesn't bother the Mexican Spotted Owls at all, Stack told the commissioners.

"This animal does not hear the noise," he claimed.

Still, the quarry operators reiterated their commitment to ahdere to the guidelines.

"If necessary we will change our monitoring to accommodate the bird," Mangone said.

After hearing the testimony, and looking at the maps of the area, State Land Commissioner Jay Kenney concurred that some sort of breakdown has indeed occurred. Ordinarily, he pointed out, renewing permits for mining operations is an almost automatic event, not wrought with much controversy. After all, he noted, the State Land Board is not a regulatory agency, and disputes are supposed to be hashed out long before they reach the commission.

"I'm listening to both sides, and I have to scratch my head," Kenney said. "Certainly something has gone awry."

The land board staff was instructed to determine whether any violation of the law has occurred and return to the board with their findings in April.

Not like Oregon

The Mexican Spotted Owl is the cousin of the better-known Northern Spotted Owl which inhabits the Pacific Northwest. In the early 1990s, controversy over spotted owls reached a crescendo when communities that relied on logging for their livelihoods were threatened with economic devastation.

Vaughan said that in Oregon, the government's failure to respond quickly contributed to what resulted in bitter fights over jobs versus owls. The economics of the Mexican Spotted Owl's presence in Colorado is nothing like the situation in Oregon, Vaughan said.

U.S. Fish and Wildlife Service biologist Terry Ireland wrote about the birds in this month's Colorado Division of Wildlife newsletter. One of the reasons the Mexican Spotted Owl has not garnered a lot of attention in Colorado, he wrote, is because they live in forests that "are of little timber value and the rugged, remote country they prefer is unsuitable for development."

He noted that the owls live mostly along the Front Range, but also have been found nesting in the Cliff Palace ruins at Mesa Verde and in Dinosaur National Monument in northwest Colorado.

But in his report, Ireland singled out the Red Canyon Quarry as a "potential conflict" if the State Land Board allows the mining activity to extend further north."

In Red Canyon's case, Vaughan said the main issue is simply that not enough information is available about what kind of impact the quarry operations -- including nighttime dynamite blasting and artificial floodlights -- would have on the owl.

"I'm sure it will affect their habitat and their comfort level. They are individuals just like we are. Some will tolerate [noise], some won't," he said. "It was a little bit reckless to have opened that area up for mining," Vaughan said. "When you get into a threatened species every individual counts."

The birds, he said, could be very sensitive to noise, and that is why they have chosen in a fairly inaccessible area. "These birds are pretty hidden away and may be using the area as a buffer from encroachment."

Vaughan said he is worried that, as in Oregon, government agencies won't be able to act in time to stop destruction of the owl habitat here.

"[In Oregon] the Forest Service realized there was a problem years before they addressed it. By the time they were forced to do something about it as a result of legal action by the Sierra Club and the Audubon Society, it had come down to jobs versus owls," said Vaughan. "There's a real problem when agencies don't react in time and wait until it's a real serious and expensive problem."

"I don't think the quarry should be allowed to continue to expand until we know the impact," Vaughan said.

The Yellow Brick Road

In 1996, Rocky Mountain Materials and Asphalt secured an exclusive contract to rebuild the roads at the Fort Carson Army base. As part of the U.S. government's new "partnering" requirement -- designed to save taxpayers money -- that contract was also extended to the area's four other military installations, said Robert Mills, a civilian who is the contract specialist and contracting officer at Fort Carson.

Rocky Mountain Materials and Asphalt currently provides road base and rebuilds the roads at the Air Force Academy, Peterson Air Force Base, Schreiver Air Force Base and the North American Aerospace Defense space command center, according to Mills.

The minimum amount of the contract is $500,000 a year, and the maximum the government pays the company is $15 million per year, depending on the amount of work done, Mills said. The gravel company initially secured the lucrative government contract in 1994, and its latest contract is up for renewal this year.

Despite the appearance of the cozy arrangement between Stack, his business partner and the government, the contract is acceptable, said 1st Lt. Ben Quigley, Fort Carson's deputy chief of media relations. As long as the criteria are met, Quigley said, Fort Carson employees and managers are allowed to contract -- indirectly and directly -- with the military.

An extensive check-and-balance process prohibits insiders from securing lucrative government contracts, Mills said. When placing bids, contractors have to meet extensive evaluation, he said, including legal reviews.

Mills denied people with internal influence could secure a contract at the base. "No one has power over me to sign contracts."

However, he conceded that, given Stack and Rocky Mountain Materials and Asphalt's business arrangement, people could construe the relationship as a perceived -- but not real -- conflict of interest.

"Actual is an actual conflict of interest, and appearance is where it looks like a conflict of interest, but isn't," said Mills, explaining the difference. "People are supposed to avoid even an appearance of a conflict of interest, to stay above board."

In the case of Rocky Mountain Materials and Asphalt, Mills said he was unaware that Stack owns the quarry -- and leases it to a company that has the contract to supply road materials to the Army base where he works.

As long as Rocky Mountain Materials and Asphalt meets its contract obligations, Mills said, he is not concerned.

Howdy pardner

Stack did not respond to several calls seeking clarification of his business ties, his lawsuits against his neighbors and how he plans to protect the Mexican Spotted Owl.

But according to documents filed with the district court in Freemont County, El Paso County's military installations are not the only government agencies that Stack considers himself partnered with.

According to court documents, Stack bought the Red Canyon Quarry in 1975. He has contracted with several companies since then to mine the operation. In 1992, Rocky Mountain Materials and Asphalt began mining the quarry. Colorado Springs resident Stephen Schnurr is listed as the president of the corporation at the Secretary of State's office and the quarry is managed by Rob Mangone.

Stack and his wife live at the site of the quarry and he, along with Mangone, works directly with government oversight agencies and responds to any complaints filed about its operations.

In an Oct. 23, 1992 request to increase the quarry's operations sent to Fremont County Commissioners -- who unanimously issued its Conditional Use Permit in 1997 -- Stack indicated that the quarry "has the potential to be an important revenue generator."

Stack estimated then that the operation provides 60 jobs to people living in and around Fremont County. The county and the state also receive a percentage of the royalties from the rock that is extracted.

"We see ourselves as partners with Fremont County in developing a productive, clean, low-impact, dependable revenue source for the County's future needs," Stack wrote.

But not all of Stack's neighbors see things his way.

SLAPPing the neighbors

Last year, Rocky Mountain Materials and Asphalt filed lawsuits against Anna Weiland and Kim McBride, two women who own 36 acres of land next to the quarry. Since they bought the property and built a house there in 1997, the women have filed several complaints to county officials, accusing the quarry of violating its operating permit.

Accusing them of interfering with their operations, the quarry secured a restraining order against Weiland and McBride a year ago.

In the lawsuit, filed in district court in Fremont County, Weiland was accused of slamming on her brakes in front of loaded semi-trucks, dangerously forcing them to stop suddenly. She was also accused of screaming obscenities at the truck drivers. The quarry also claimed McBride threatened one of their employees with a shotgun and that the two women had trespassed on their property.

McBride and Weiland deny the accusations, but the court has ordered them to maintain distance and not interfere with the quarry's operations. The lawsuit also accused of them of malice, injuring the quarry's reputation and loss of business opportunities.

The women's attorney, Lori Potter, believes that the lawsuit against her clients constitutes an attempt to muzzle them by forcing them to retain a lawyer and pay the price for complaining to government agencies.

These types of lawsuits have been labeled Strategic Lawsuits Against Public Participation (SLAPP-suits for short) and are a growing trend in the legal industry. The intent, legal experts say, is to chill people from pursuing the right to redress the government.

Once they are sued, people find themselves forced to hire a lawyer to defend them against companies with extensive resources and, faced with daunting legal costs and the uncertainty of sure outcomes, opt to fold rather than pursue their defense.

Colorado Springs attorney Joseph Ricci, who filed the lawsuit against the two women on behalf of Rocky Mountain Materials and Asphalt, denied his clients are trying to muzzle McBride and Weiland.

"The quarry has operated since the '70s or '80s and they never had any problems with any concerns or violations of any law, until Weiland and McBride came along," he said.

Actually, several other neighbors have, over the years, lodged nearly identical complaints with the county and with other oversight agencies. And at least three times, the quarry has responded by suing them.

A concerned citizen

In 1992, Red Canyon Quarry sued David and Jill Perez who, at the time were living near the quarry with their three young children. On Oct. 24 that year, David Perez sent a letter to the county planning and zoning department, detailing his worries "as a concerned citizen" over the quarry's operations.

He was particularly concerned, he wrote, because semi-trucks were operating before and after the times allowed, and during the times that his children's school bus was picking up kids along the windy road.

"My wife and I have great concerns with the gravel trucks that travel on Barrett Road because our three children ride the school bus that also must travel on Barrett Road." Perez wrote.

Perez asked the county to ensure the quarry adhered to the guidelines or be shut down. And his wife echoed those allegations during a public planning and zoning hearing

Two months later the quarry sued the Perezes, charging them with reckless disregard, knowingly making false statements and interfering with their business.

After hiring a lawyer, the Perezes eventually agreed not to pursue their grievances, including not taking their concerns before the Fremont County Board of Commissioners. In exchange the quarry agreed to drop the lawsuit and their efforts to secure a restraining order against them. The family has since moved from the area.

The following year, the quarry sued Juanita Ford and Mary Lou Whetstone, who had previously owned the quarry property and McBride and Weiland's land. Several years before, Whetstone had complained to the state Mined Reclamation Bureau that the quarry was illegally diverting water from Red Creek. (Another government agency, the state Division of Water Services, had ordered the diversion be halted.)

In their 1993 lawsuit, the quarry accused Whetstone and Ford of breach of contract and defamation, claiming they were attempting to block their commercial use of the quarry thereby injuring or destroying their business operation.

The women eventually settled the lawsuit, in part agreeing to stipulations they would approach Stack with any future complaints before taking their grievances to government agencies. Shortly after, the women sold the rest of their land and moved away.

Lies and

damned lies

Also last year, the quarry sued Ron and Ann Heck, who own the Mountaindale campground near the quarry. In the lawsuit, filed in district court in Cañon City, Stack accused them of defamation, civil conspiracy, abuse of process and outrageous conduct.

Specifically, in court documents, the quarry's attorney, Keith Doyon, accused the Hecks of making "objectively baseless" complaints to the Colorado Division of Minerals and Biology. The Hecks had complained that the quarry's operations had damaged the flow of the creek running through their campground, and potentially disturbed the downstream water supply.

"These allegations are Mr. Heck's conjecture and are devoid of reasonable and factual support," Doyon wrote.

The Hecks referred all questions to their lawyer, Colorado Springs attorney Keith Vance, who described the lawsuits as "quintessential SLAPPs."

"[They] constitute nothing more than an unconstitutional attempt to use the courts to violate the federal and state constitutional rights of defendants in petitioning the government for redress," Vance wrote in court papers.

"They're scared," he said of his clients. "They don't want to expose themselves further and so the SLAPPsuit has had its desired intent -- it's stifled their effort to redress government."

Prove it

Fremont County is mostly rural, and Cañon City is the largest town and the county seat. The concept of a "good old boy's" network was not lost on Weiland and McBride when they bought their property, built their house and moved in.

"We're considered newcomers and because we're newcomers we should not complain," Weiland said. "But in fact there are a lot of new people that have moved into the neighborhood. We don't feel that we have any less of a right to go to our county officials and talk to them about problems that we are having than someone who has lived here for 20 years."

Several area neighbors -- some of whom work at the quarry -- have filed affidavits with the court praising Stack for road improvements and other good deeds he has contributed over the years. To his credit, Weiland said, Stack has donated or sold at low prices quarry rocks to the neighbors.

But, she said, "there's almost a code of silence in the neighborhood concerning the quarry and its operations."

If the quarry were found in violation of its permits, it could be shut down.

And every time the neighbors have filed complaints, the county division of code enforcement has determined that the quarry's conditional use permit -- which stipulates the operating times and procedures for the quarry -- has been met.

Last week, Mark Mitchell, the director of the code enforcement, said the county has never followed up operation-related complaints with unannounced on-site visits.

Instead, he calls the quarry ahead of time to let them know he is coming for an inspection, or to review their books. The onus, Mitchell said, is on the complainant to prove any violations occurred.

Weiland and McBride have subsequently attempted to document their concerns, at the request of the Fremont Board of County Commissioners. Last year, the women videotaped the trucks driving on the road in front of their house on a Saturday that they said was after the 3 p.m. cut-off for when the trucks were supposed to stop operating.

But when they submitted the tapes to the county for review, Mitchell said he showed it to Stack. The quarry owner suggested that the video camera's clock had not been set properly. The amount of light in the video suggested to him, he said, that it was earlier in the day than McBride and Weiland were claiming. The truck schedule that Stack provided the county also verified that no truck had left the quarry after hours, Mitchell said.

It is unclear why Mitchell and other county officials accepted Stack's uncorroborated truck schedules, yet dismissed the videotape and testimony from Weiland and McBride. Weiland said that, in addition to the rejection of her evidence, a county commissioner called her a liar when she insisted the time had been set correctly on the video camera.

Unlike the Hecks, Weiland has continued to appeal to government officials. However, she won't make a move without her lawyer's approval.

"[Weiland and McBride] have had to go to the expense and trouble of defending their prior statements and consulting with a lawyer -- a citizen should not have to do that in the United States of America," said Potter, a Denver lawyer representing the women. "That's what the First Amendment is all about.

"The right to petition your government is a fundamental right. Not everybody in the United States of America needs to have a lawyer on retainer before he or she talks to the government, but these folks do."

Potter denies that her clients want the quarry shut down. They do, however want to be able to make sure the quarry is complying with its conditional use permit, she said.

However, Rocky Mountain Materials and Asphalt's lawyer, Joseph Ricci, denied that his clients have violated any laws, and claimed that no government agency has found them in violation of their permit.

"The First Amendment does not apply to blatant falsehoods," Ricci said of claims that his client is trying to scare the neighbors into submission.

For their part, Weiland and McBride said they were "shocked" when the quarry filed a lawsuit against them. Last year, the women spent $20,000 in legal fees, which McBride pointed out would be enough to make most people back down.

"It's the biggest nightmare a person can go through, you have no idea the amount of stress," McBride said.

And, in the future, McBride said, she will have to think twice before making what she feels are legitimate complaints. "The chilling factor is it's not just us, it's the whole neighborhood."

And, if the Sierra Club is right, that chilling factor may have extended to the nearby Mexican Spotted Owls' habitat as well.

As the Audubon Society's Vaughan points out, there may only be three known owls in the canyon. But -- with only 15 Mexican Spotted Owls known to live in Colorado -- that number comprises 20 percent of the birds' population in the entire state.

Vaughan, who has a degree in ornithology, pointed out the foolishness of "taking the only breeding pair you have for 1999 and start digging into the habitat right next to where they're breeding."

The fact that so few owls have been spotted in Colorado, Vaughan said, also suggests that "we've only got a few good canyons we're finding them in, so it could be the only habitat."

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