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Boulder County responds to lawsuit holding up debris removal program

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Posted at 5:44 PM, Mar 11, 2022

DENVER – In a response to a lawsuit that has held up approval of the contract for debris removal from people who lost their homes and businesses in the Marshall Fire, Boulder County argued the company that filed the lawsuit does not have standing and that a judge should dismiss the case.

In February, Boulder County commissioners unanimously awarded the cleanup contract to Metairie, La., based DRC Emergency Services, LLC, out of 11 different proposals. The company said it was capable of starting the cleanup process by March 1 and could have it done by the beginning of July barring any weather delays.

Two of the companies that also submitted bids appealed the award, but commissioners denied those appeals, the county said Tuesday.

But a nonprofit registered in January called Demanding Integrity in Government Spending, which is led by Michael Brown, the former FEMA administrator under President George W. Bush and current 630 KHOW talk radio host, filed a lawsuit seeking a temporary restraining order and preliminary injunction claiming county commissioners violated the Colorado Open Meetings Law and improperly convened executive sessions to talk about the contract.

Louisville City Manager Jeff Durbin said on March 1 that lawsuit would delay the start of the debris removal process by at least a couple of weeks.

Boulder County filed its response on March 9 and released it on Friday. The county argues it did indeed follow state law during the contract procurement process – with the team recommending DR Emergency Services, LLC, to county commissioners for the process, which the board adopted during a Feb. 10 public meeting.

The county’s attorneys argued the court should deny Brown’s motion, saying if the court ruled in his favor, “it will result in a heavy blow to more than 1,084 households whose homes were tragically burned in the Marshall Fire.”

They argued that Brown cannot succeed on the merits because he and his company have failed to prove they are Boulder County residents and that they have any interest in the outcome of the county’s procurement process. They also allege that he has not proven a personal injury.

The attorneys also outlined why they believe open meetings laws were not violated throughout the process. And they included in their response affidavits from people who lost their homes, arguing that Brown’s interest in enforcing the open meetings law is far outweighed by the damage to victims of the fire who have to wait longer for debris cleanup to start.

“Brown’s purely abstract interest in strict compliance with the COML pales in comparison to the interests of the Marshall Fire of survivors in timely removing debris, rebuilding their homes and returning to their normal lives,” attorneys for the county argued.

One of the affidavits came from a man named Tim Hughes, who said he has a set plan to rebuild his home by the end of 2023 but has to put all of the insurance money he gets back into the building costs because he is underinsured. He testified if he loses his place in the building queue, it could cost upwards of $100,000 in extra money.

Another person, Phyllis Hollister, said she and her partner are retired, underinsured, and that the timeline for debris removal will have a large impact on deciding whether to rebuild or sell the property.

Several other victims said the 24-month time limit for insurance companies to pay additional living expenses is also factoring in for them.

“ALE insurance coverage is for 2 years, so any delay in this process may … [force us] to pay both our current mortgage and rental property out of our own money. This will break us,” said Jennifer Spalding, according to the filling.

Demanding Integrity in Government Spending has until next Tuesday to reply to the county’s response, and Boulder County District Court is expected to hear the case next Friday, March 18.

The county says if the court finds in its favor, it will move forward to finalize the contract with DRC Emergency Services and the intergovernmental agreement between the county, Louisville and Superior.

The county said if the contract moves forward, both it and DRC believe the cleanup can be completed in July.

“The county is hopeful that the contract can be finalized and the IGA can be approved by the end of March, which would allow for project mobilization immediately thereafter,” the county said. “By starting in March, the county and the contractor remain optimistic that the program will be complete in July 2022, weather permitting.”