Judge: Pueblo DA out of case

A federal judge has dismissed the Pueblo County district attorney from a lawsuit he and the Sierra Club filed against Colorado Springs Utilities over pollution of Fountain Creek.

Utilities called the ruling, issued Wednesday, a “positive step,” but only a partial resolution.

“We’re not in a position to be overconfident,” said Utilities spokesman Steve Berry, noting the trial with Sierra Club begins next month.

Pueblo District Attorney Bill Thiebaut and the Sierra Club sued the city and its utility in 2005 alleging violation of the Clean Water Act. The lawsuit was based on Utilities’ repeated sewage spills into the creek that has resulted in record fines imposed by the state Department of Public Health and Environment.

The issue the judge considered is whether a district attorney has the authority to bring a Clean Water Act action.

Utilities argued that Thiebaut doesn’t, because the Legislature hasn’t given him that power. Thiebaut argued that he does have authority because district attorneys have broad discretionary power to enforce laws in their district unless specifically limited by the Legislature.

Federal Judge Walker Miller ruled that Thiebaut failed to demonstrate legal authority

for his involvement in the case.

Sierra Club, though, remains a plaintiff. While Springs Utilities’ argued that the pollution the club sued over has been remedied and that state authorities have taken action, the Sierra Club noted numerous sewage spills have occurred since it filed the lawsuit.

“I agree with Sierra Club,” Miller wrote. “Colorado Springs does not deny that it has had repeated incidents since this action started, and it does not explain why a rational fact finder would not find ‘a reasonable likelihood that (it) will continue to pollute in the future.’”

Thiebaut could not be reached for comment.

In a prepared statement, Springs Utilities said the ruling was consistent with its position that “the district attorney’s actions were unnecessary and demanded financial and personnel resources from both Colorado Springs and Pueblo that could have been better spent on more productive paths.”

The statement also said the city is “confident” in its case and has assumed responsibility for its wastewater system.

CONTACT THE WRITER: 636-0238 or pam.zubeck@gazette.com