La Plata County hopes to recover an estimated $337,000 in attorney fees as part of a four-year legal battle with the state of Colorado – a case the county initially won in trial court, had overturned in appeals court, but hopes to have the initial decision upheld by the Colorado Supreme Court.
The county petitioned the Colorado Supreme Court in May to hear the case after the state’s Court of Appeals ruled La Plata County was not immune from a work order issued by the Colorado Department of Public Health and Environment over potential pollution from a landfill, and therefore, on the hook for lawyer fees.
The Colorado Supreme Court exercises discretion on what cases it hears, and there is no telling if or when the court may hear La Plata County’s case against the state, said Jon Sarché, spokesman for the Colorado Judicial Department.
“There’s no time line, so there’s just no way to say,” he said.
The issue stems from the Bayfield Landfill, created in the 1950s by a private company for small-scale municipal solid waste on County Road 223, west of Bayfield.
La Plata County bought the 32-acre landfill property in 1970, and it was closed two decades later, with state approval. According to court records, because of its age, no liner was constructed. An estimated 100,000 cubic yards of trash was dumped on 15 acres of the 32-acre property over a 20-plus-year period.
The landfill was replaced by the current transfer station.
In 2004, groundwater-monitoring results at some wells showed elevated levels of vinyl chloride, a chemical that poses a risk to human health. County officials have said the groundwater is not at risk of contaminating drinking water.
For 12 years, La Plata County worked with CDPHE on a cleanup plan that included extensive monitoring. Cleanup standards were attained at six locations, except for vinyl chloride levels at one well.
Thus began the legal battles.
La Plata County maintains the state ordered it to perform work the county was already doing voluntarily, and wanted the county to sign an essential “blank check” by agreeing to any future work ordered by CDPHE.
CDPHE, for its part, has said the county has “exaggerated” its willingness to fix the problem, and says vinyl chloride leaking from the landfill may affect domestic drinking water wells located down-gradient from the site.
In 2016, CDPHE issued a work order that La Plata County believed was “unnecessary” and would cost more than $1 million to carry out. The county then challenged the work order in court.
In July 2018, Judge Suzanne Carlson dismissed the case, saying La Plata County held governmental immunity from such actions. The next month, the court ordered that La Plata County, as the prevailing county, could recover attorney fees from CDPHE.
La Plata County was awarded about $264,000 in attorney fees and associated costs. Megan Graham, spokeswoman for La Plata County, said the county paid outside counsel about $128,000, but was awarded $264,000 based on market attorney rate costs and reimbursement for county attorney time spent on the lawsuit.
After CDPHE challenged the ruling, the Colorado Court of Appeals this winter determined Carlson erred in her judgment, saying La Plata County is not immune in the case and is not entitled to recover costs.
La Plata County then decided to take its case to the state’s highest court.
“We are asking for Supreme Court review,” said Graham, adding La Plata County has not yet received word about whether the court will grant review.
Graham said the county has attorneys on staff, but must hire outside counsel when cases require certain areas of expertise and are time-intensive. She said the county is asking the Colorado Supreme court to award an additional $73,000 in related costs, which was denied by the district court.
CDPHE on Monday declined to comment.
“We don’t typically comment on pending litigation,” said spokeswoman Laura Dixon.
According to state records, in 2018, more than 900 similar petitions were filed with the Colorado Supreme Court. Of those, fewer than 10% were granted review.
According to the state’s website, the Supreme Court “generally does not grant discretionary review simply to correct an erroneous decision that will affect only the parties to that case.”
“Instead, because the court’s primary role in reviewing such decisions is to set precedent that develops and clarifies the law on important issues of broad impact, it grants review in a small percentage of cases.”
If enough time languishes, Sarché said the petitioning party, in this case La Plata County, can ask the Supreme Court to dismiss the appeal. CDPHE would not generally have the option to make that kind of request, he said.
Graham said it is a statewide issue many other communities are battling. She said CDPHE has been retroactively applying new rules to closed landfills the agency has already signed off on.