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Colorado Springs Utilities drops push for contempt citation against clean-air activist

February 8, 2017 Updated: February 9, 2017 at 6:05 am
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Martin Drake Power Plant shot from Gold Hill Mesa on Thursday, Dec. 1, 2016. Carol Lawrence, The Gazette

The contempt citation sought against clean-air activist Leslie Weise, and her appeal of a lower court ruling, both were dismissed Wednesday by the Colorado Court of Appeals.

Weise and Colorado Springs Utilities - which sought the contempt citation - are to pay their own attorney fees and court costs, according to the agreement.

Utilities and the city had asked the court to consider citing Weise for contempt and pursuing punitive sanctions, which could include jail time and fines, because Weise spoke to The Gazette about a document she had been seeking.

Although her attempts to get the air-quality report by AECOM Technical Services Inc. were rebuffed, the appeals court inadvertently sent her that document. She said she returned it to the court without keeping a copy, as ordered. But she discussed some of its contents with a Gazette reporter.

Weise first filed a lawsuit in December 2015 in El Paso County District Court, seeking release of the AECOM report on sulfur dioxide levels from the coal-fired Martin Drake Power Plant. A judge rejected her request last May.

So Weise took her battle to the Colorado Court of Appeals in June.

Her fight to see the SO2 records, and Utilities' continued refusal to release them, prompted controversy. A petition urging Utilities to release the report had been signed by 1,542 people as of Wednesday, while a account to help with court costs for "whistleblower Leslie Weise" had collected $9,541. More than a dozen people have testified on Weise's behalf at two Utilities Board meetings, where they also urged the city-owned enterprise to unseal the AECOM report.

"I am encouraged by how much public support I have received ... " Weise said in a statement Wednesday, citing Coloradans and environmental groups including 350 Colorado and the Colorado Renewable Energy Society.

Utilities issued a statement announcing "an amicable settlement agreement with Ms. Weise without the need for further litigation."

The joint motion to dismiss the contempt citation and Weise's appeal were filed Feb. 3, the Utilities statement said, and the motion was granted Wednesday.

"This resolution addresses Utilities' primary concern which was preserving the attorney-client privilege and the confidentiality of the privileged documents. We believe this settlement is in the best interest of our customers, avoiding the high cost of further litigation," the statement said.

Weise suggested the fight to unseal air-quality reports isn't over.

"This case has only strengthened the resolve of local residents who demand access to air quality reports that contain information about the air we breathe," she said.

Utilities hired AECOM in December 2013 to help assess air quality and the two primary methods to do so: modeling and meteorological monitoring.

When Weise first pushed for the records, Rick Griffith, of the City Attorney's Office, said the AECOM report was withheld because it contains "trade secrets, privileged information, and confidential commercial, financial, geological or geophysical data."

First Amendment attorney Stephen Zansberg, who represents The Gazette in such cases, said courts don't care about the competitive standing of government, including the city-owned Utilities, a four-service monopoly.

Griffith more recently emphasized an "attorney-client privilege" in withholding the report, saying AECOM was helping Utilities prepare for expected lawsuits by the Sierra Club and others.

The firm's contract says it is to help with air-quality assessments, modeling and meteorological monitoring. Nothing in the contract or Utilities' request for bids cites a provision for legal advice.

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