Fountain Creek lawsuit parties ask for more time to reach a settlement

Fountain Creek photo via the Fountain Creek Watershed Flood Control and Greenway District

From The Pueblo Chieftain (Robert Boczkiewicz):

Attorneys who are trying to settle an environmental lawsuit against Colorado Springs for degrading Fountain Creek last week asked, once again, a judge to give them more time to reach an agreement. The judge balked.

“The Parties respectfully request . . . an additional 90 days,” the attorneys stated in a court filing to the judge overseeing the case in Denver at the U.S. District Court for Colorado.

Senior Judge John L. Kane met them part of the way, but warned that his patience was wearing thin…

Kane has approved six extensions since last year to keep the case on hold while all sides try to agreed on a plan, rather than continue to fight it out in court.

The most recent 90-day extension expired on Thursday.

In last week’s request for a new extensions until Nov. 18, the attorneys for all sides told Kane they “have worked diligently” to complete a settlement, known as a “Consent Decree,” in which Colorado Springs agrees to take specific actions. If the judge approves the terms of the settlement, it would become a court order.

The attorneys stated they have “accomplished as much as possible under challenging circumstances by telework, various means of remote communication, exchanging redline drafts of individual provisions and complete drafts” of a tentative proposed settlement, including three technical appendices. Those documents consist of more than 170 pages.

“In our last request for an extension, the Parties advised the Court that we had reached an agreement on almost all issues and had substantially completed a proposed (settlement agreement), the attorneys told Kane. “The Parties further advised the Court that there were a few remaining open issues that needed to be resolved.

“These final issues have taken longer than anticipated to be resolved and, therefore, a final proposed agreement was not ready to be presented to the appropriate approval authorities in the timeframe anticipated by the Parties when we requested our last extension” the attorneys stated. “The Parties have recently resolved these remaining issues and are finalizing the proposed (agreement) now.”

The attorneys said that during a 90-day extension, they “will finalize the proposed Consent Decree, as well as brief and present the proposed Decree to the appropriate approval authorities for their respective governments or governing boards in order to request their review and decision regarding approval of the proposed Consent Decree. “In answering the extension request, Kane wrote: “I am fully aware of the difficulties involved in reaching a conclusion to this case. Not only are all of us hampered by measures instituted to deal with the coronavirus epidemic, but in addition each of the parties to this case has additional responsibilities to their constituent governments and taxpayers amounting to fiduciary obligations…

“This is, however, the seventh request for ninety-day extensions to complete settlement agreements and file a proposed consent decree. This Court, too, has a public obligation to ensure the prompt, speedy and just resolution of cases presented to it,” the judge wrote. “As such, it is inappropriate for the Court to engage in excessive accommodation to this settlement process.

“I find we have reached that point, if indeed not exceeded it. Accordingly, rather than the requested ninety days, I will allow the parties an extension of the stay up to and through Oct. 30, 2020.

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