Still Railing

Time is about to run out on Colorado's most irascible political entity. But the tiny Moffat Tunnel Commission is going down swinging.

State legislators last week abolished the commission, an obscure state agency whose political monkey-wrenching in the past four years has drawn the wrath of some of Colorado's most powerful interests.

Before it was slated for execution by lawmakers, the five-member elected commission compiled an enemies list that includes the City of Denver, the Winter Park Recreational Association (WPRA), billionaire Philip Anschutz's Southern Pacific Railroad and the Colorado Arlberg Club, an exclusive ski society composed of some of Denver's richest citizens. And last week, the mouse that roared committed one final act of defiance, extracting more than $2 million from the WPRA to settle a hostile lawsuit the tunnel board had filed threatening to boot the resort off its land. The money from that eleventh-hour settlement will be distributed among the nine counties within the Moffat Tunnel Improvement District.

Senate Bill 233 calls for the commission to go out of business as of February 1, 1998. At that point, its powers will be transferred to the state's Department of Local Affairs. Sitting commissioners will serve out their terms, which expire at the end of 1996, but it's expected that Governor Roy Romer will reappoint the same panel in caretaker roles.

Language in the bill passed last week says the commission is being done away with to "eliminate an unnecessary layer of government." However, the legislation never would have been introduced if the political Lilliputians hadn't picked a fight with the wrong people.

"Had we continued the good ol' boys' club that was here before we came on board, we'd be getting along swimmingly with everyone in the state," says Denver-based commissioner Edward J. "Jake" Jakubowski Jr., long the tunnel board's most ardent defender.

Created in 1922 to oversee the construction of railroad and water tunnels under James Peak, the Commission led a sleepy existence for most of its life. Traditionally dominated by members of Denver's monied elite, who viewed terms in office as something of a plum, it did little other than coordinate interest payments on the bonds issued to build the tunnel. Commissioners didn't bother to maintain an office, instead holding half-hour monthly meetings in a boardroom at the First Interstate Bank before adjourning to lunch at the upscale Broker Restaurant. The commission's chief activity in the 1980s was approving sky-high legal fees for its staff attorney, a former Republican Party district captain who billed for such services as reading newspapers and "researching" how to obtain a death certificate for a man who died while running for office.

However, the election of 1990 signaled the demise of the lunch bunch. That's when commissioner Walter O. Cass, a 71-year-old Denver attorney who once played the viola in the KOA radio orchestra, was joined by Jakubowski and Winter Park representative Tim Flanagan. Together the three ushered in an era of unlikely activism.

The commission's new majority fired the free-spending staff attorney, opened an office in Denver's Union Station and started lobbing grenades at many of the same powerful interests who once dominated the commission itself. They quickly ticked off the Southern Pacific, whose attorneys complained about Cass's "nitpicking" of leases and other matters. But the trio's chief target was the WPRA, another entity historically dominated by the city's country-club set. Livid over a sweetheart deal a group of their predecessors on the commission had signed giving the ski resort a 98-year freebie lease on tunnel-board land, Cass and his colleagues began making noises about forcing the ski resort to begin paying rent.

Cass and the others were branded as rabblerousers by former commissioners and Denver Country Club members Rendle Myer and John M. Law, whom Cass and Jakubowski defeated in a 1992 general election that Cass, a fedora-wearing former labor-union attorney, described as a "street fight, Chicago style." And the WPRA, a nonprofit corporation that runs the ski resort as an agent for the City of Denver, originally balked at paying what it perceived as political blackmail.

However, after commissioners pressed the issue of rent payments--at one point, Cass asked for $320,000 per year and mused about kicking the WPRA off the land and putting up a Taco Bell--resort boss Jerry Groswold grudgingly agreed to begin paying $50,000 per year. That deal soon blew up, however, and in what proved to be the beginning of the end for the commission, the parties openly declared war on each other.

Worried that the commission now had the votes to do real damage--and, perhaps more frighteningly, possessed the power of eminent domain--the WPRA and the Southern Pacific in 1995 backed a bill to kill the tunnel board. Shortly afterward, Cass and company took the WPRA to court in Grand County, vowing to eject the resort from its land. The tunnel board also opened its financial floodgates, spending more than $200,000 to thwart the WPRA's legislative attack.

The ski resort's bill died in committee last year. But when the WPRA and the railroad set aside thousands of dollars for another legislative assault in 1996, the tunnel commissioners, who haven't collected taxes in more than a decade and saw their bank account dwindling, threw in the towel. "We were bleeding to death slowly," says Jakubowski. "Nobody was getting money except the lawyers and lobbyists."

The result was a legislative compromise allowing the commissioners time to wind up their affairs and giving the WPRA and the railroad the right to purchase tunnel-board assets at "fair market value." In the meantime, the commissioners and the WPRA fashioned an out-of-court settlement in the Grand County lawsuit. Under that agreement, the resort will hand over $2,032,000 for 22 acres of commission land.

Although WPRA attorney Eugene L. Hohensee denies that the commission lawsuit had any effect on the resort's controversial base-area development plans ("Privileged Information," November 29, 1995), the tunnel commissioners clearly took pleasure in what they viewed as a temporary gumming up of the real estate venture. "If they wanted to go forward, they had to settle this deal," says Denver commissioner Dick Rudolph, elected in 1994. "As pompous as Jerry Groswold is, he was probably physically ill when he signed that settlement."

The settlement also undoubtedly comes as a relief to the Arlberg Club, which leases mountain property of its own to the WPRA and whose ultra-secret membership list had become something of a Holy Grail for the tunnel board. One of the former tunnel commissioners who voted for the 1980 freebie lease was an Arlberger, as were Jerry Groswold's father and several members of the present WPRA board. As part of an effort to uncover further conflicts of interest in ski-area dealings, the commissioners this year went after the membership list, prompting the Arlberg Club to join the court battle in an effort to keep its dealings private.

The tunnel board took heat for spending so much money on legal fights. But Rudolph says the settlement with the WPRA proves the commission was on the right track. "We spent a little over $200,000 to make $2 million," he says. "To me, that's good business."

Meanwhile, though the tunnel board will be around for another 21 months, a sense of nostalgia for the good old days already prevails at its downtown offices. Last year the body was chased out of its train station digs by rising LoDo real estate prices and has moved its few belongings, including a set of black-and-white pictures from the golden era of Colorado railroading, into a faceless 18th Street high-rise.

"I never even hung up the pictures," muses administrative coordinator Doug Freed of the mostly barren office space. "I kept expecting us to be gone every month."

But Jakubowski, who wears formal bow ties to commission meetings and, like his erstwhile mentor Cass, is viewed as a troublemaking eccentric by the ski area and the railroad, says he has no regrets over the activism that ultimately led to the board's downfall.

"I think of what Jack Nicholson said in One Flew Over the Cuckoo's Nest," says the commissioner, who in the past has issued somber public proclamations at commission meetings, including a salute to the U.S. Army's performance in the Battle of the Bulge.

"He said, 'At least I tried.' That's how I feel. At least I tried.


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