Letters to the Editor – March 13

I have several things that I need to cover. First is the landfill problem. We are not going to raise the rate to $125 per month as the DEQ has suggested. We don’t feel that is appropriate and we are working with the state to come up with a reasonable plan. I am not sure where this will end up but in talking to members of the Legislature, they believe our rates are high enough.

I was surprised to see our recycler call it quits, but we cannot back away from recycling. Recycling is part of our landfill plan and if we have to pay by the pound to bury garbage, it only makes sense to cut the number of pounds we are disposing of. We will be looking for a solution.

The state’s exact budget numbers are not out but I have been told they are better than the first forecast. The 60/40 split is still in place and I don’t see the Legislature backing away from that. The state does not want to see an increase in the number of employees for cities, towns, counties or the state itself, therefore they are limiting discretionary spending to 60% of the appropriation. The reasoning behind this is that Wyoming is so dependent on mineral money, that should minerals decline, they don’t want to see anyone eliminate jobs. The 40% is called consensus money and is to improve infrastructure and make healthier towns. All towns in the state are somewhat dependent on the state and the state would like to see us in good financial shape so we aren’t dependent on them. My opinion is that you replace older infrastructure and do what you can and grow the footprint of the town to encourage responsible growth.

I have a few comments on the Wyoming Business Council. The Legislature wants to diversify the state’s economy to eliminate the boom and bust cycle that has plagued Wyoming since its inception. High quality businesses that want to relocate here are concerned that we are so dependent on minerals that if they drop in value, they (the potential businesses) will be forced to pay much higher taxes. This is why the Governor and the Legislature are so concerned about the state’s business environment.

The town has also been working with Powder River Energy on the rate case they are taking to the Public Service Commission. There is an organization called Wyoming Industrial Energy Coalition (WIEC) that represents a couple of oil companies that are trying to structure large power rates to benefit their specific interests. This affects the town because our wells, sewer lagoon and daycare are all on the large power rate. The cost to the city if their plan is adopted will be an increase of about $14,000 a year. The city does not have the margins to absorb that size of rate increase so we would have to pass it on to consumers through higher rates. I am scheduled to make comments this week and hopefully we will win this battle.

We are also working getting the optional one-cent, or sixth-cent, tax back. The town has always used this money for infrastructure and we have done some great things with it. The beautiful thing about this tax is that over 50% of it is paid by tourists and because much of the work is mandated by the EPA, DEQ and others, this tax keeps your rates down.

I want to share that we have received and accepted bids on 21st Street project which is a consensus project and the Cole tank where we will partner with Wyoming Water Development. These projects should proceed soon. We are going out for bids on the trailers for the transfer station and that funding comes from SLIB (State Land Investment Board Trust). The Cole tank reclamation will potentially come from SLIB and the Croell Project, a Wyoming Business Council project, will fire up again this spring.

Paul Brooks, Mayor

To the Editor:

The company that owns the Cole Tank site on Sandstone wishes to address two misstatements contained in Sundance Mayor Paul Brooks’ letter to the Joint Appropriations Committee quoted in the Mayor’s Letter to the Editor in the February 27, 2014, issue of the The Sundance Times and to recount some history regarding the City’s obligation to reclaim the site.

In the letter to the JAC the Mayor stated that there is a “pending lawsuit because the land owner of the failing tank site wants it reclaimed” and that the reclamation “is called for in a 1949 agreement.” There is no “pending lawsuit.” No suit has been filed. There is no 1949 agreement between the City and the Company.

Some time before the City erected the new water tank on the site, the City’s crew noticed that the old water tank, which was at a different location on Sandstone, had been leaking. That leakage eroded the hillside and caused a large washout. The City decided it would build a new, much larger water tank and asked the landowner if the new tank could also be place on Sandstone. The landowner agreed to consider that request. The City then retained engineers to determine if Sandstone was an appropriate site for a tank of the size the City wanted to build. The City and its engineers determined that the site was suitable and in August 2009 the landowner granted the City an easement extending the City’s existing easement for the old tank site up to the new location. One condition of the 2009 easement was that the City would restore the new tank site area “to the same condition as existed prior to” the City’s operations there. Another condition was that to minimize further erosion and washout of the hillside the City would reclaim and reseed the washout caused by the leakage from the old tank within eighteen months of the execution of the 2009 easement.

The City cut back into the hillside, built retaining walls with concrete retaining blocks, installed piping and wiring and poured the massive concrete pad upon which the new tank was erected. In mid-July 2011 the City found that cracks were developing around the concrete pad along the cut into the hillside. After extended study, the City, a geologist hired by the City and others who were involved in the selection of the site and the construction of the new tank determined that the hillside under and around the tank was beginning to slide and that the tank would have to be removed and relocated. The City then began to look for sites to relocate the tank. The Company suggested one possible site on its property near the Sandstone site, but the City found that site not suitable because of bedrock and other physical conditions. The City investigated several possible sites and found the most suitable site to be the one across the County road from the old site that the City has now obtained from one of the owners of the Company.

The duty and obligation of an easement holder, such as the City here, to reclaim and restore the land an easement is located on to its condition at the time the easement was granted is a common condition of easements and has long been firmly established under the law. In a January 8, 2013 agreement, the City affirmed its obligation to reclaim the Sandstone site, including the removal of the retaining walls and the concrete pad. However, the Company agreed that it would not require the City to stabilize the whole area affected by the sliding because of the cost to the City and the questionable effectiveness of an attempt to stabilize that entire area.

During the negotiation of the January 2013 agreement, the Company was told by the City that the City had the money to do the reclamation work and, while the City said it would not take it that long to do the reclamation, it asked that it be given one year to complete it. The reason given by the City for its request was that it hoped to be able to pay a contractor for only one mobilization where the contractor would remove the tank from Sandstone and move it to a new location, rather than one mobilization to remove the tank and another to move it to a new location. The Company agreed to give the City one year to complete the reclamation. The money the City said it had for the reclamation was apparently spent elsewhere and the imminent threat of the tank sliding down the hill required the City to disassemble the tank and store it on Sandstone before a new site could be selected and obtained. In the January 2013 agreement the City also agreed to keep the Company informed of the City’s plans for the reclamation and to confer with the Company about those plans. The City also affirmed its obligation to reclaim and reseed the washout caused by the leakage from the old tank that it was required by the 2009 agreement to have completed by January 2011, but had failed to do.

Following the finding that the hillside under the tank was sliding, the City retained a geologist to advise the City about the practicality of restoring the site after the tank was removed. In a May 2013, letter to City Engineer Trihydro, the geologist restated his company’s July opinion that the “water tank site slope should be considered unstable both short-term and long-term” and recommended “that all of the man placed items associated with the existing tank be removed after the tank has been removed, including foundation concrete, retaining wall blocks, piping, etc.” since it was “apparent that the entire slope starting at the very top of the butte will continue to fail.” The January 2013 agreement between the City and the Company was amended in August 2013. Included in that amendment is a provision that specifies the recommendations of the City’s geologist as a part of the reclamation the City will perform.

The City has done no work on the reclamation it was required by contract with the Company to complete by January 8, 2014. By an October 23, 2013, letter to the Mayor and City Council, the Company advised the City that, while the Company was aware of the financial difficulties the City was experiencing in funding the reclamation, the Company was not willing to allow the January 8, 2014 deadline to pass unless there was a further amendment to the agreements extending that deadline. The Company also stated that it expected that the City would be willing to fully explore for itself and with the Company all other options for an acceptable resolution to avoid a lawsuit to enforce the agreements or for the costs of the reclamation. The Company received no response to that letter.

On December 10, 2013, the Company sent an email to City stating that the Company had been assured that the City recognized that it had the obligation under the agreements to do the reclamation and reminding the City that the Company was not willing to let the January 8, 2014, deadline pass without an agreement extending that deadline. The email also stated that if the City breached its agreements the matter would reach a stage both the City and the Company had stated they did not want and that it would then be necessary for the Company to consider retaining legal counsel to address the matter.

As reported in the January 16, 2014, issue of the The Sundance Times, the matter was not addressed by the City until the January 7 City Council meeting, two days before the City breached its contract with the Company. At that meeting the City Attorney advised the Mayor and the Council that the City was in default on its obligation and that the Company could bring a lawsuit for a judgment requiring the City to either perform or pay the cost of the reclamation. The Council authorized the City Attorney to negotiate an extension of the time for completion of the reclamation, to include some assurances that the City would make progress on the reclamation so that the Company would not be back before the Council in another year because the City had again failed to do any reclamation work. Now, three months later, the City has failed to present the Company with a draft of an extension agreement for its consideration. At this point, the City remains exposed to a lawsuit to enforce the agreements, but that exposure is the result of the City administration’s failure to take advantage of the extension of the reclamation deadline the Company offered and that the City Council authorized be negotiated at its January 7 meeting.

The Company was recently informed by the City that it is in the process of requesting bids for the reclamation work. If that occurs the City will have some actual facts and figures with which to plan for and fund the reclamation work instead of mere speculation about how it will be done and what it will cost. The solution will not be to “blast all the cement off that hill”, as the Mayor stated at the January 7 Council meeting. The concrete pad must be broken up and the pieces and other materials placed on the site by the City must be removed from the property. The City’s crew may be able to do all or a part of that work. With bids, the cost of the reclamation work will be identified rather than cost figures being based on some broad, unsubstantiated range such as the Mayor stated at that meeting to be $75,000 to $150,000.

Yes, as stated in the Mayor’s letter to the JAC, the landowner does want the site reclaimed. One would expect that any landowner in Crook County would require any easement holder to do the same, particularly if, as here, the consequence of a failure of the easement holder to do the reclamation were to be a massive concrete pad sliding off a hill from its current accessible location and the pad, large retaining blocks, piping and other debris scattered over the landowner’s property and, perhaps, onto the neighboring property. The Company is not willing to be left to deal with those problems by the City, problems the Company did not create or contribute to.

For some time now misinformation has been circulated to the effect that the City’s problems with the tank relocation, the reclamation of the tank site and the City’s related financial concerns are somehow the fault of the Company. Let there be no further misconceptions about fault. The responsibility for the erroneous decision to erect the new tank on the site is solely that of the City and its consultants who determined that the site was suitable. The landowner had no part in that decision. The responsibility for the cost of the required reclamation is likewise the sole responsibility of the City or, perhaps, of those consultants. To the Company’s knowledge, the City has so far elected not to pursue any claims against any third parties, but by contract the City has acknowledged and accepted its duty and obligation to perform, and has promised to perform, the reclamation. That performance by the City is what the Company rightfully expects and requires.

Larry Cole

Cole Ranch, LLC