GDPUD Management-Board Called Into Question Over Lost Lawsuit

The Court wrote: "There is no question that the District acted for a Valid public purpose - that of providing Water to its users. And, there is no question that the  District had a right to enter plaintiffs property and maintain the ditch. But, here, Where the right depends not on a granted easement, but on a prescriptive easement, the scope of the right is determined by historical use. And, the court finds that cutting down trees which have been growing on the easement most likely since it was established 150 years ago exceeds historic use."

"Plaintiffs’ claim in this case is one for inverse condemnation. An inverse condemnation action, in contrast to a condemnation action, is an eminent domain action initiated by one Whose property was taken or damaged for public use."

The judge understood the historic nature of the utility district's water system but wrote, "A great deal, however, has changed since the Gold Rush era - property in the service area has been divided and subdivided into hundreds of private parcels and the District’s ditches and pipelines cross many of these parcels, including that of plaintiffs. Over the years, the employees of the District have routinely entered these parcels to observe and maintain the facilities. They do so, however, not by virtue of deeded rights, but by virtue of prescriptive easements, easements, they say, that have been in place for more than 150 years. And, of course, over this time the methods of maintenance have changed, too. Whereas maintenance was once done by big arms, strong backs and shovels, it is now done by diesel excavators. The excavator used in this case has apparently been operating for a number of years and has operated, in the past, on or near plaintiffs’ property."

In May of this year "the District's crew entered plaintiffs’ property with an excavator and power equipment and, Without talking to plaintiffs who were apparently out of town for several days, removed more than a dozen hundred year old oak trees and associated Vegetation and cleaned out the ditch."

"the District has imposed a substantially greater burden on plaintiffs’ property, a burden Which, the court feels, should be spread among the all of the District’s users. Judgment Will enter in favor of the plaintiffs and against the defendant in the sum of $9365, together With costs of $150."

GDPUD Board Member Kathy Otermat responded to the lawsuit by saying that the Battenberg's property, which they've owned for 30+ years, was substantially damaged by the district under the management of a GM Hank White and a board who has no policies for cutting trees on private property. 

She went on to say, "It was a totally avoidable situation.  Shortly after it happened I asked EID GM Jim Abercrombie at a Mountain Counties Water Agencies luncheon what he thought of GDPUD not having a policy re: cutting trees on private property, his reply 'absolutely absurd' and he literally ran to his office and gave me the index to their policies as well as their Operations manager contact info to ask questions on their procedures.  I presented this information to our board and to this date they have refused to support having such a policy and I have been called a micro-manager by retired GDPUD Operations Manager Steve Gau for even pursuing this."

Regarding the lawsuit loss Otermat said, "This information was not provided to me by the GM and I'm curious when he will inform the Board." She added that two new GDPUD Board candidates have goals for written policies.   Depending on when the GM tells the Board, the incumbents may not be informed of this when the first Candidates Forum on Sept. 25th happens.  "It would be a good issue to raise to the incumbents" she said.

Otermat told Korby and Larry Battenburg that the only hope for a GDPUD policy to avoid future problems "is a change in the GDPUD Board makeup" and she hoped they will support the challenging Board candidates, Pat Snelling and Maria Capraun.


Court Document Here:
www.ineldoradocounty.com/docs/GDPUDvBATTENBERGJudgement.pdf