Look Out Below!

When a Denver gas company started drilling wells in Las Animas County, it brought bad feelings to the surface.

The Sunday worship service at Christ of the Canyons church in the small southern

Colorado town of Cokedale took a decidedly secular turn one morning this past August. A process server came into the church and tried to deliver papers to Dave Groubert, a church elder who also runs a Christian school in the same building.

"The server came up the stairs to the area where we have our worship services," remembers Groubert. A church member managed to intercept the man and asked him to wait until after worship was concluded. He did--and then served Groubert with papers informing him that he was being sued for slander and trespassing by a gas company and three of his neighbors.

The lawsuit claimed that Groubert, along with several friends, had trespassed on property near their homes to take pictures of some of the natural-gas wells and adjacent ponds that dot the hillsides near Cokedale; it also charged that Groubert and his co-defendants had slandered the gas company, Evergreen Resources Inc., by alleging that the wells were operating without required permits and by questioning the safety of thousands of gallons of wastewater generated daily by those wells.

Groubert is an unlikely activist. A conservative Christian and father of three, he speaks in carefully parsed sentences and has the stern demeanor of a New England pastor; it's not likely he tolerates spitball contests or foul language from his grade-school pupils. But now he finds himself in an unexpected nasty war with a Denver-based gas firm that insists Groubert and his allies are troublemakers and environmental radicals who want to shut down gas production in Las Animas County.

Like many of his neighbors, Groubert moved into the pinon- and juniper-studded Huajatolla foothills west of Trinidad for peace and quiet back in 1976. "You don't move to a remote, rural area like this because you thrive on strife," he says.

But today, strife is the major landmark of an area just north of Cokedale, the former mining outpost of Bon Carbo. (A coal company named the town "good coal" in French, dropping the final "n" so people wouldn't mispronounce the name.) Much of the land here was subdivided into 35-acre ranchettes in the 1970s, attracting an eclectic mix of back-to-the-garden hippies, conservatives unhappy with the social upheaval in urban areas, and retirees who simply wanted a quiet place to enjoy life.

Over the past few years, transplants like Groubert have discovered that the pastoral ideal can become far more complicated than they ever imagined. Many of them bought their small spreads without realizing that someone else might own the rights to minerals, gas and oil underlying their property--and that whoever owns the rights can drill a well at any time, without the landowner's permission. They love the romance of listening to coyotes wail across the valley, but they never thought that sound would be drowned out by the loud hum of pumps sucking up natural gas 24 hours a day.

And they certainly never dreamed they'd be spending thousands of dollars on attorney's fees, doing battle with a highly profitable gas company in a legal and public-relations fight that's polarized Las Animas County. While some locals view Groubert and his group, Southern Colorado Citizens United for Responsibility to the Environment (SoCURE), as heroes who've taken on a greedy and irresponsible corporation, others see them as privileged newcomers who don't appreciate the jobs and income Evergreen brings to a poor county.

"They seem to think because they've bought a little piece of property, things should be the way they want," says Paul Warren Taylor, a longtime rancher in the area who has several Evergreen wells on his property and who joined the slander suit against SoCURE. "There's a few special-interest groups that want everything their way."

With a population of about 16,000, there aren't many strangers in Las Animas County. That means people on both sides of the fight, who may be suing each other in court, often find themselves thrown together at odd moments.

"It could be the same person you're standing in line behind at the Safeway," says Groubert.

The hills around Bon Carbo are arid stepping-stones to the Spanish Peaks, which loom to the west. Juniper bushes and scrub oak straddle empty creek beds, while ponderosa pine cluster at the tops of the hills. Deserted miners' cabins attest to the area's history as an important coal-producing region. Before World War II, hundreds of men worked in dozens of mines in the area, but mining in Las Animas County went into a decline in the 1940s and has never recovered.

Much of this land was once part of huge ranches--huge not because they were profitable, but because it takes a lot of area in this dry climate to feed a few cows. In the mid-Seventies, several ranchers decided to get out of the business and subdivided their property, and human residents started replacing cattle in the scrub around Bon Carbo. While the town itself consists of little more than a post office, the hills are dotted with houses, and a steady stream of four-wheel-drive vehicles runs up and down the dirt roads.

Even though this part of southern Colorado can be bone-dry for weeks on end, these days the roads are almost always wet. That's because Evergreen has several water trucks driving up and down the canyons, spraying water from its wells onto the county roads--part of the company's ongoing effort to get rid of thousands of gallons of water its pumps pull up from the underground aquifer every day. Evergreen has over 100 wells in Las Animas County; they generate an estimated 24 million gallons of water a month.

Driving through arroyos with names like Burro Canyon and Chinaman Canyon, you see dozens of well sites with green-painted pumps that spin continuously, pulling up the natural gas from deposits as deep as 3,500 feet underground. Since the gas is naturally mixed with groundwater, it must go into a separator at each well site that extracts the gas and sends it into a network of pipes that run underground to a central gathering place. The leftover water is dumped into ponds adjacent to each well, where it's supposed to drain back into the ground or evaporate. To help move the process along, Evergreen trucks suck up some of the excess and spray it on the roads.

Water is at the heart of the controversy in Las Animas County. Although many natural-gas companies inject leftover water back into the aquifer, where it can't contaminate water supplies, Evergreen has chosen to leave it on the surface. While company officials insist the water is safe and argue in court documents that it's pure enough for stock animals to drink, residents worry about what's really in it--and whether it will contaminate the shallow wells that Bon Carbo residents depend upon.

"The issue is, we can't tell which water is clean and which water isn't clean," says Leslie Beck, who lives near Bon Carbo with her husband and two sons. "We're concerned about how this will affect our children and grandchildren."

Although there had been limited gas development in the area for years, most of those wells were on one ranch. In 1991 Evergreen acquired mineral rights for much of the land, including the parcels subdivided into ranchettes back in the 1970s. In 1993 the company embarked on an aggressive expansion program, drilling dozens of new wells in the residential areas around Bon Carbo; methane from those wells has been on the market since 1995.

The area is known as the Raton Basin, and it's been pumping out spectacular financial results for Evergreen. Last year the company reported profits of over $5 million on revenues of $13 million. "We believed for years that we had figured out how to extract coalbed methane very profitably in the Raton Basin," boasts Evergreen's annual report. "The results now speak for themselves."

And more drilling will be coming soon. In the report, Evergreen tells its stockholders it will use the gusher of profits from Bon Carbo to drill another 400 wells in the area over the next few years. All told, Evergreen estimates there are 550 potential well sites in the basin.

The Raton Basin operations will help fuel Evergreen's expansion into natural-gas projects in Chile and the United Kingdom, the report says, and "will continue to be the cashflow engine that funds the company's future development."

Since Colorado law makes it clear that surface landowners must allow access to their property for those holding the mineral rights, there is little property owners can do to prevent gas pumping on their land.

"I tell these people from Evergreen, 'How would you feel if I tried to put up a porno shop next to your house in Denver?' That's how I feel about them trying to put a well next to my house," says Mike Kircher, who has lived near Bon Carbo for more than fifteen years.

But while they know they must accept having wells on their lands, property owners still believe they should have some say in what those wells leave behind.

When Evergreen began its drilling operations around Bon Carbo, neighbors were first concerned about the noise. As more and more wells were drilled and containment ponds became a common sight, however, they became increasingly worried about the quality of the water coming out of the wells and whether that wastewater would threaten the shallow aquifer they use to supply their own homes. "We haven't said, 'Let's get rid of gas development,'" says Kircher. "We just want to be sure that any water being discharged is safe."

Kircher says he and other neighbors tried to talk with the company, but Evergreen didn't take them seriously. "They thought we were Ma and Pa Kettle from Bon Carbo," he says.

So a half-dozen neighbors decided to organize formally and started SoCURE. They commissioned studies of the water. They complained to county, state and federal officials. And in May of this year, SoCURE gave Evergreen sixty days' notice that it intended to file suit under the federal Clean Water Act. In their notification letter, the group's members enclosed more than a dozen photographs of Evergreen's discharge sites and containment ponds.

Citizens' lawsuits are an important part of the enforcement provisions of the federal Clean Water Act, which was passed in 1972. Under that law, if government agencies fail to take action against polluters, the public can file a suit demanding enforcement of the regulations.

The Colorado Department of Public Health and Environment, which is charged with enforcing federal clean-water laws in the state, derives most of its data from voluntary reporting by all industries. In fact, the department didn't get around to inspecting Evergreen's Bon Carbo well sites until it was notified that a lawsuit was imminent.

"We had not been to the site since we originally permitted it in 1995," says David Akers, section manager for the health department's water-quality protection division. "We weren't aware of the full scope of what was going on down there. Hearing from the citizens' group brought this to light."

Late this spring, a department inspector found that several of Evergreen's wells lacked permits; other wells were discharging water into unlined ponds without permits.

Just how safe that water is has yet to be determined. Data provided by Evergreen to the health department indicates water from several of the company's wells failed whole effluent toxicity (WET) tests. These tests, which are commonly used to gauge water quality, involve exposing water samples to micro-organisms. If the water kills the organisms, it fails the test. A detailed analysis of Evergreen's well water is now being conducted by the health department.

The data from Evergreen also indicates that while many of the wells are relatively clean, some generate water with concentrations of chemicals such as benzene that exceed federal standards for drinking water. Other chemicals that have been found include toluene, xylenes, napthalene and nearly a dozen other substances. Since benzene has been linked to leukemia, residents worry that Evergreen hasn't been coming clean with them regarding the purity of its water.

A public meeting at Trinidad State Junior College in June quickly turned into a free-for-all as speakers from each side defended their positions. Evergreen CEO Mark Sexton lamented that "for some reason, communications have broken down" and assured the audience that his company cared about the environment in the county. To dispel "fears and rumors" about the water being generated by two company wells drilled close to one resident's water well, Sexton held up two jugs of murky water. "My directors were here last week, drank some of the water, and they didn't die," he said. The CEO then took a swig from each jug, earning a round of applause.

But such theatrics didn't satisfy SoCURE. In July the group filed a suit in U.S. District Court in Denver, alleging that Evergreen had violated the federal Clean Water Act by operating dozens of wells without discharge permits from the state and that several of those wells (including the one containing the water Sexton had taken a gulp of) produced wastewater contaminated with potentially dangerous chemicals like benzene. The suit also charged that some of the wastewater flowed into creeks that eventually reached Trinidad Reservoir and the Purgatoire River.

Evergreen responded quickly. Within days the company and three area landowners, including Paul Taylor, filed a slander-and-trespass suit in Las Animas District Court against Groubert and several of his neighbors.

And the company took other action. Just after SoCURE filed suit, Kircher says, Evergreen suddenly announced it wanted to build a well a few hundred feet from his home.

Evergreen officials say their attorneys have advised them not to talk publicly about either lawsuit, so they declined to comment for this story. In court filings, however, the company aggressively challenges SoCURE's claims. Evergreen contends there is no evidence that the groundwater generated by its project is harmful to residents or the environment; the company also claims it is not covered by the Clean Water Act because none of the water it produces ever reaches a major river.

The files include a letter that Evergreen wrote to the state health department in July, responding to the department's inspection report that cited a lack of permits for several wells. That charge was irrelevant, the company said, as were other SoCURE complaints. "Evergreen does not believe groundwater brought to the surface, which in most cases meets federal primary drinking water quality standards, is a 'pollutant' under the Clean Water Act," the Evergreen letter reads. "Evergreen denies any 'pollutants' are being discharged into state or U.S. waters."

But Bon Carbo residents scoff at the notion that none of the Evergreen-pumped water ever reaches Trinidad Reservoir. While the creek beds that run through the valley are dry much of the year, they say snowstorms and thundershowers regularly create flash floods, and Evergreen's excess water overflows from the ponds into the creeks.

"I've seen water four feet deep running through the arroyos," says Kircher.
Since SoCURE filed suit, the Environmental Protection Agency has also journeyed to Bon Carbo to inspect Evergreen's wells. Last month the EPA found that the company was in violation of clean-water guidelines: During its inspection of the area, the EPA identified eleven discharge sites operating without permits. The EPA inspector noted, too, that there were dead trees around Evergreen's ponds. Whether they were killed by contaminants or "drowned" by over-watering has not been determined; either way, the EPA says, Evergreen's ponds fall under the Clean Water Act.

The fact that neither state nor federal health agencies visited the site until SoCURE threatened court action annoys the group's members. "We were the ones that had to scream bloody murder to get the EPA down here," says Kircher.

"We kind of feel like we've taken on a burden for the whole state," says Penny Bieber, who has lived in the area for more than twenty years. "This is an issue everywhere."

Conflicts between natural-gas companies and the people who live where they are pumping are not new. Battlement Mesa has been the site of numerous disputes. Because of problems outside Durango, La Plata County commissioners have tried to impose their own regulations on the industry, passing noise-control standards and giving property owners more say about where wells can be located on their land. But these are bold moves that may not withstand court challenges. State regulations generally favor the oil and gas industry, one of the most politically powerful groups in Colorado. (Newly elected governor Bill Owens worked for several years as the executive director of the Colorado Petroleum Association.)

Natural-gas extraction in the state is governed by the Colorado Oil and Gas Conservation Commission, an industry-friendly board that has clashed with residents on the Western Slope as well as those in Las Animas County.

According to Rich Griebling, director of the commission, rural property owners often fail to grasp that ownership of mineral rights is just as real as ownership of land. "A lot of people don't understand the property rights that mineral owners have," he says. "A lot of surface owners assume the state or county commissioners can eliminate the right to develop the minerals. That's not the case."

Before they filed their lawsuit, several members of SoCURE met with Griebling and other oil and gas commissioners. At one meeting this past summer, SoCURE asked the commission to aid in finding a solution to the Bon Carbo dispute.

Griebling says he told the group the commission might be able to help by hiring a mediator, but only if they dropped the planned lawsuit. "I could see it wouldn't be possible to pull that off if they pursued litigation," he says.

Dave Groubert remembers the meeting somewhat differently. He says SoCURE wanted the commission to help form a committee that would try to hammer out rules governing the natural-gas industry in Las Animas County. "The [oil and gas commission] said this committee would have no ability to enforce rules," Groubert recalls. "They said it would basically be a discussion panel and it wouldn't have any authority of any kind."

Among the commissioners encouraging SoCURE to drop its planned lawsuit was Molly Sommerville, Groubert says. At the time, his group didn't know that Sommerville works for Evergreen's law firm, Welborn Sullivan Meck & Tooley.

"My recollection is that she was echoing the other commissioners, saying there would be no point in Evergreen participating [in mediation] if there was litigation," says Groubert. "I didn't have a clue she was involved with Evergreen."

Sommerville insists she's never worked on behalf of Evergreen. She can't be accused of a conflict of interest, she adds, because as a commissioner, she's never actually cast a vote on an issue involving the company.

"Certainly, if the commission had to make a decision, I would recuse myself," Sommerville says.

SoCURE's members insist that they're not opposed to gas drilling but just want regulations in place that protect their water supply. So far, though, they've found all their dealings with public officials to be frustrating, since they're repeatedly told there's nothing anyone can do.

"Everything is stacked against us," says Bieber.
There's little action the county can take, says Las Animas County Commissioner Mike Ossola, who represents the Bon Carbo area. "Most of the rules and regulations pertaining to oil and gas are from the state," he adds.

Las Animas County has 300,000 subdivided acres, and most of that is in the scenic western half of the county. Unfortunately, natural gas is located under that scenic acreage. "When people bought the land, they should have realized they didn't have the mineral rights," Ossola says. "I wouldn't want a well next to me, either, but Evergreen is exercising its rights."

Ossola's efforts to mediate between the two sides were unsuccessful. "I'm going to let them fight it out in court," he says with a sigh. "When things go to court, nobody wins."

People in Las Animas County take the fight over Evergreen personally. The slander-and-trespassing suit filed by the company made sure of that.

Owners of two ranch properties who have allowed Evergreen to install wells on their land joined with the company as plaintiffs. Their suit names SoCURE and several of its members, including Groubert, Beck and Kircher. The Bon Carbo activists are accused of damaging Evergreen's business reputation and lowering the value of the ranchers' land by making "misleading and damaging" accusations. The lawsuit also accuses Groubert of trespassing on Taylor's property to take pictures of one of the wells.

Beck says SoCURE may have to spend as much as $20,000 defending itself in the suit, which she views as an attempt by Evergreen to intimidate its critics.

"Here we are in the U.S.A., and we're supposed to have freedom of speech," she says. "Now we have to think, 'What if we say something and get sued?'"

Over the past decade, it's become increasingly common for companies being challenged by citizens' groups to sue for slander. A corporate attorney coined the term SLAPP (strategic lawsuit against public participation) for such cases. Although these suits are usually thrown out of court since Americans have a constitutional right to criticize others, defendants still have to spend their own funds to hire a lawyer, and that can have a chilling effect.

"There's been an immense personal cost," says Bieber. "The SLAPP suit is the scariest thing that's happened, because it's personally directed and costly. They're designed to financially cripple you."

In September, Evergreen and the suit's other plaintiffs asked Pueblo District Court Judge John Tracey to require SoCURE to provide them with a list of its members. That's a blatant attempt to frighten people out of supporting them, the defendants say.

"For what reason would they need a membership list?" asks Beck. "All of our names are well-known. Now people are afraid to contribute to SoCURE because of the SLAPP suit. People are so afraid, they make contributions anonymously."

Like Evergreen officials, rancher Taylor says he can't talk about the suit because it's in litigation. He makes it clear, however, that he thinks the Bon Carbo residents are troublemakers harassing a natural-gas company that's done nothing wrong.

"The biggest problem is the lies they're telling," says Taylor.
A Las Animas County native, the eighty-something Taylor owns 5,000 acres near Bon Carbo. Although he now lives in Trinidad, he comes from a long line of ranchers and believes natural-gas production can help the county economy recover from the shutdown of the mines.

"This has quite a future here for the next twenty or thirty years," he says.
Taylor makes no secret of his disdain for the subdivisions that dot the foothills west of town. "Natural gas may do some little damage, but no more than all this subdividing," he says. "It's been way overdone. It's brought a lot of people in here and created a lot of damage.

"They've subdivided the ranches, and all this development is ruining the place. The traffic and vandalism and pollution have tripled. Those are the things I have against the growth."

He has a few things against several of his new neighbors as well. "We've had a lot of good people come in, but also some I don't think highly of," Taylor notes tartly. "They're people who came in when the subdividing started. They're not natives; they've come from every state in the union."

County commissioner Ossola sees the conflict as part of the stress that comes with population growth. For years Las Animas tried to attract new industries and residents, usually unsuccessfully. Now that they've finally come, however, many old-timers are bitter about the ensuing change.

"We've always wanted growth," says Ossola. "Now we're getting it with all the problems."

For much of the past forty years, Las Animas County has been economically depressed, and young people often left to seek work elsewhere. Now the population influx has brought new jobs in construction and retail. A lot of these jobs are low-paying, though, and Ossola says the county is still struggling to lure high-paying employers. While natural gas isn't a major employer--about a hundred people work for three different gas companies in the county--those jobs are relatively well-paying.

"That's why this is such a divisive issue," says Beck. "A lot of people think this helps put food on the table."

Bieber knows that old-timers like Taylor will always see her as a newcomer, even though she's lived in Bon Carbo for two decades. But that's enough time in the area to convince her that laws governing oil and gas extraction simply haven't kept up with the changing nature of rural Colorado.

"When somebody has 60,000 acres, they might have fifty gas wells and it doesn't impact their lifestyle," says Bieber. "But now you have all these people living on 35-acre pieces of land, and it has a huge impact."

Bieber laughs as she recalls the naivete of the back-to-the-land movement that brought her and husband, Tom, to Bon Carbo in the mid-Seventies. "We moved here 21 years ago to do the self-sufficiency thing," she says with a wry smile. "We built our own house and got goats and chickens."

Making a living in Las Animas County was a constant struggle, and the couple frequently considered leaving. "There were a number of times we came right to the edge," adds Bieber. "But it was worth putting up with financial insecurity to live out our dream."

The tribulations of life in a remote valley are many; when Bieber went into labor during a snowstorm, she had to be driven out on a snowmobile. But she's grown to love living in a place where the Sangre de Cristo mountains sparkle on the horizon and herds of elk wander through meadows.

"In twenty years, I've never taken it for granted," she says. "It gets into your blood. It's something you don't want to give up."

Like several other members of SoCURE, Bieber owns a minority portion of the mineral rights under her land. That's not enough for her to have a say in whether wells are drilled there, although it does mean she gets a check for $25 from Evergreen every quarter. But she says no amount of money could convince her to look the other way while the area she loves is sullied.

"We're getting nothing but grief out of this," Bieber says. "We're only asking for people to play by the rules.

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