Miner claims upper hand in legal battle | AspenTimes.com

Miner claims upper hand in legal battle

One of the last miners in the Aspen area believes he has finally gained an upper hand in a seven-year legal battle with Pitkin County government.

Robert Congdon has convinced a district judge that his allegations that the county commissioners in office in 1992 rigged their review process against him warrants further review.

“You can talk until you’re blue in the face but how do you prove it?” Congdon said of his fight against the better-funded county government.

“The judge saw there’s something stinky here,” the miner added. “It’s encouraging for him to see it so quick and so obvious.”

Assistant County Attorney Debbie Quinn insisted the judge hasn’t seen anything in Congdon’s favor. His recent rulings simply mean there are issues that need to be settled in court, Quinn said. 25-year permit issued Congdon applied for a permit in 1991 to mine alabaster from the Avalanche Creek area in the Crystal River Valley. He found a mother lode of white, black, gray and blended alabaster – a rock similar to marble. It’s used for upscale interior finish work.

After administrative and legal fights with the county, Congdon received a 25-year operating permit last year.

Congdon has alleged in litigation against the county that the commissioners overstepped their legal authority while reviewing and denying the original permit seven years ago.

Congdon claimed the commissioners could rule on off-site effects of the mine, but they couldn’t deny actual mining activity. He said they ignored the limitations and improperly denied his right to mine on federal lands.

Through his Aspen attorney, Charles Fagan, the miner further alleged that the commissioners failed to provide a fair hearing as an impartial board.

Congdon is seeking attorneys fees and damages for time spent fighting for a permit. Judge criticizes county The seven-year-old case has landed in the hands of Judge Richard Turelli, a retired jurist who n See Congdon on

handles cases only by special appointment. Previous judges disqualified themselves.

In rulings last month on a variety of motions, Turelli failed to provide a knock-out blow for either Congdon or Pitkin County. But he criticized and raised questions about the county commissioners’ tactics.

“There is undisputed evidence to show that the Plaintiff [Pitkin County] was conscious of the law applicable to the proceedings before it on September 15, 1992 and acted contrary to the law and its authority by denying the Defendant’s application on that date,” the judge wrote.

The county commissioners at the time of the alabaster mine review were Fred Crowley, Wayne Ethridge, Herschel Ross, Jim True and Bill Tuite.

The judge added that the county also “failed to comply” with direction provided by another judge in an earlier ruling. Turelli also wrote that there are questions about some of the procedures used by Pitkin County during the review.

“This court concludes that there are sufficient facts to support the Defendant’s claim of denial of due process,” the judge wrote.

While those statements sound damning, the county is claiming it scored the only real victory in the Aug. 11 rulings.

Quinn said the county essentially received a summary judgment determining that it wasn’t responsible for a “takings” by denying Congdon’s initial application.

The county is asking the judge to reconsider his other findings, according to Quinn. Headed for trial Congdon and Fagan took a different view of the rulings than Quinn. Congdon said the county has tried three times to have his claims tossed out of court. Each effort has failed.

“They’d like to think this is just going away,” said Congdon.

While none of the commissioners who reviewed the mining permit in 1992 is in office any longer, Congdon criticized the current officeholders for not settling the past board’s problems.

The current commissioners have indicated they would like to settle out of court but they don’t act on those promises, according to Congdon. He said he’s been offered $100,000 from the county, which doesn’t even cover his attorney’s fees.

Attorneys for the county’s insurer are providing additional legal representation in the case.

Congdon alleged the county, which has deeper pockets, has tried to financially bleed him into a settlement. After all these years, he’s determined to stay in the fight to try to get what he thinks he deserves.

Congdon didn’t state an exact dollar figure. He said his legal fees are at least $132,000 and probably more by now. As far as damages, he’s uncertain what would be fair.

He noted that a man recently indicated he will sue the city and county for at least $250,000 for arresting and detaining him for alleged cocaine possession for a substance that was apparently baking soda. That man was held in jail for 14 or so days. Congdon noted that the county’s actions affected his life for more than seven years.

Fagan credited his client’s perseverance.

“If he hadn’t fought for six or seven years, he wouldn’t have been in the game,” Fagan said. “He’s incurred substantial attorneys fees just trying to right a wrong. He should be compensated for that.”

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