Vail Daily column: Condemnation action should be retracted | VailDaily.com

Vail Daily column: Condemnation action should be retracted

Dean Rostrom
Valley Voices

In the midst of the Great Recession, Eagle Valley Clean Energy invested more than $60 million into a new biomass power plant in Gypsum — the first biomass power plant in Colorado and a breathtaking risk for our start-up, family-owned business. Gypsum welcomed the new investment and in return promised to annex the property into the town for the biomass plant's benefit.

Besides providing renewable energy to the Western Slope, Eagle Valley Clean Energy fortifies the US Forest Service's programs for hazardous fuels mitigation and clean water by removing dead and dying beetle-kill trees from the forest. Every day the biomass plant safely converts dangerous slash piles into renewable energy and provides dozens of stable, family wage jobs to hardworking members of our community.

In a whiplash reversal to its earlier support, Gypsum passed a new town ordinance in July to condemn 69 acres of property owned by Clearwater Ventures, the company that leases the biomass plant site to Eagle Valley Clean Energy. Last week, Gypsum filed a lawsuit in Eagle County courts to take the property from Clearwater, and is seeking immediate possession.

The 69 acres surround and critically support the biomass plant, which draws its water for plant operations from the ditches, streams and springs flowing across it. The property also acts as a security zone around the biomass plant, a necessary protection in accordance with the Department of Homeland Security's Critical Infrastructure Protection Plan.

Eagle Valley Clean Energy and its landlord, Clearwater Ventures, are separate companies with different business lines and ownership groups, but share some management overlap, including myself. Both companies now find themselves uncomfortably in the crosshairs of a way-bigger-than-us political debate on the role of government in American society.

In our opinion, no government should take private property from its citizens by force unless it is absolutely essential to a clear and immediate public need, one that it clearly articulates and explains to the people whom it serves, and even then, only if no other pathway is open. That is simply not the case here.

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While eminent domain is ordinarily used in the context of a well publicized public project, such as a street widening, prior to enacting the condemnation ordinance in July, Gypsum never held any public meetings to explain why it needs to take Clearwater's property at this time. Furthermore, the town has not proposed any plans for implementing a public use or facilities for the property, let alone made any budget allowances, which of course deserve public input.

Even today, Gypsum only explains, in the vaguest of terms, that it needs to appropriate the property in order to preserve and protect the riverfront acreage and wetlands as open space, and possibly to utilize it for a new wastewater treatment facility (we find some ironic disharmony between those two stated purposes). Eagle Valley Clean Energy and Clearwater Ventures share the vision for preserving the property and have attempted on many, many occasions since 2012 to find an agreeable way to accomplish this objective.

However, negotiations with the town, including these last couple of weeks, have stumbled over Gypsum's refusal to offer Eagle Valley Clean Energy ongoing access to water and a security zone. These issues are critical to our company's well being, and we reasonably fear Gypsum will continue to spend tens of thousands of taxpayer dollars pursuing its condemnation action in a way that injures our company. (As a side note, water law is complicated, but access to water is a different issue than water rights, which are not at issue here, and which Eagle Valley Clean Energy has previously acquired.).

Therefore, to protect its interests, Eagle Valley Clean Energy filed its own condemnation action in Eagle County courts on Aug. 1, seeking to acquire the property from Clearwater Ventures for its essential purpose of supporting the biomass plant. As an electric utility with an important, preexisting public purpose of serving the community's energy and forest restoration needs, we believe that Eagle Valley Clean Energy's right to acquire the property surpasses any right of Gypsum to appropriate it for an ill-defined and unplanned future public use.

In September, Clearwater Ventures filed a separate suit to invalidate the Gypsum ordinance, arguing the town violated its own statutes by passing it without the required public notice and reading, and without making it available for public review prior to passage in Town Council.

We call upon Gypsum to retract its condemnation action. We do not believe the town has met the burden for such drastic action against a private citizen. It is bad for the Eagle Valley Clean Energy biomass power plant and, we believe, for our other fellow citizens of Gypsum.

Dean Rostrom is chairman of Evergreen Clean Energy Corporation, the parent of Eagle Valley Clean Energy.

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