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Saved in Time

Estelle Leopold, world renowned palynologist, daughter of the famed conservationist Aldo Leopold and to whom A Sand County Almanac was dedicated tells the story of how the Florissant Fossil Beds National Monument came to be and the people who fought to save the fossil beds for generations yet unborn. The following excerpts are from the final galley pages of the book without figures or endnotes. If you would like to read “the rest of the story,” consider purchasing a copy of the book from your favorite bookseller

 

Florissant: Saved In Time

 

Chapter 3. The Developers Want Florissant

{Estella Leopold}

The central part of the Florissant Valley, recently purchased by A. W. Gregg of Houston Texas, comprised some 3,000 acres of which 1,800 acres had been proposed for inclusion in the national monument (Figure 3.1). Mr. Gregg had originally purchased the land from John Maytag some seven years earlier, about the time the Park Service first issued a plan for the national monument. Gregg originally supported the monument proposal and had turned down earlier bids for sale to private owners because each year, for seven years, he anticipated action by the congress. Mr. Gregg was now very elderly and his health was deteriorating. On Friday, May 23, a neighbor of Gregg’s at Florissant, Bob Singer, called Gregg and learned that he had a contract to sell this tract to the Park Land Company of Colorado Springs. The price was around $450,000. This news had gradually leaked out to local ranchers.

Apparently a number of real estate men from Central Enterprises Company of Colorado Springs had established the new Park Land Company. Ray Thornton speaking for the land company on July 4, 1969, indicated that the resale price would be twice the amount paid in purchasing the land from Gregg. Thornton referred to “obligations,” which made it necessary for the company to start resale immediately, “either to private investors or to a holding company for the National Park Service.” In response, various groups supporting the national monument proposal promptly accused the company of anticipating profit-taking at the expense of the government. But the Central Enterprises Company claimed: “We have been negotiating for this property for almost two years and were not aware the U.S. Park Service was interested in a portion of this land [emphasis added] until we had completed our purchase agreement.” In late May 1969, the Colorado Springs Free Press quoted Thornton as saying, “We’re not being unreasonable on the price we’re asking.” He said the Company was asking a price that would cover only the original purchase and associated expenses. Even though proposals had been placed before the Congress (1964) and were pending, Central Enterprises declared, “We cannot sit idly by for six months or more to see if [the] legislature approves the request for the Florissant Fossil Beds. We must act.” Other than for economic speculation, the question of why the investors wanted to buy the land in the first place remains unanswered to this day.

Fossils Need Lawyers

In the spring of 1969, Science magazine and other media published reports about a remarkable, exciting lawyer whose motto was “Sue The Bastards!” The lawyer was Victor J. Yannacone, Jr. of Patchogue, NY. At 31, he had just won a decision that would ban for ecological reasons the use of DDT in Wisconsin.

“That’s our kind of guy!” Bettie Willard and I decided. If we can find him, we thought, we’ll ask him to help us get Florissant into the courts to challenge the Park Land Company against future subdivisions. Starting with the Science article, I got busy tracking down a phone number for him. Early the next morning, I was excited to get Mr. Yannacone on the phone. I tried to explain the case to him. He asked some questions and said he would consult with his firm, Environmental Defense Fund (EDF), a small group of activist lawyers in New York, to see if they would back him to work on the case. If he took the case, he would have to come to Colorado, he said. Could we pay his way? I said yes, wondering where Bettie and I would get the money.

Victor Yannacone turned out to be a perfect choice. Luther Carter, writing in Science magazine later, described him as, “a bustling, flamboyant lawyer with a brash style…an aggressive ringmaster and general counsel.” He has “a love of rhetoric and the center stage…a quick grasp of scientific information,” which make him a terror to polluters and other wrongdoers. Of him, EDF founder Charlie F.Wurster, Jr. once declared, “Vic really thinks he can save the world. He’s a brilliant guy.” According to those who had seen him in action, there was reason to believe he could!

Soon Yannacone called again. It was doubtful that EDF would sponsor the case, he said, but he would take it on individually. When should he come? “Right away,” I said. “Get me a hotel room, then,” he said.

On May 26, 1969, Victor arrived in the Denver airport. To my surprise, he had brought his wife Carol and their young son, Victor. We put them up at the ritzy Brown Palace Hotel in downtown Denver. The next morning, a fine spring day, I drove them to Florissant to look at the fossil beds. They happily dug fossils in the northernmost part of the Florissant Formation (Figure 3.2, Color Plate 3) and were impressed with what they saw and learned at the site.

As we drove back to Denver, Yannacone instructed me about the possible case. “First,” he said, “you and Bettie have to pull together about 10 of the most prestigious scientists and figureheads in the community to form a new group called Defenders of Florissant, Inc. Next,” he said, “in order to prepare for court action you and Bettie have to write out a brief for the court case.” I asked what a “brief” was. “OK, you write out a description of the recreational, scientific, historical, aesthetic and evolutionary values represented by these fossil beds, and you write it in nauseous detail! Got that? Third, you have to get me a local lawyer who can share the representation on this case with me. Someone you can trust and think highly of.” A lawyer from out-of-state needed to have representation from an in-state lawyer to file a court case in Colorado, he said. Yannacone was impressive and enthusiastic, and we were delighted to have him on our side.

Defenders of Florissant, Inc.

That same day, Bettie and I got together to plan our efforts and began making our Colorado contacts. Time was pressing. We needed to put together a special activist group, willing to legally defend the threats to Florissant. Who should we include as our local lawyer, and who should the Defenders be, and when could they meet? We went over some names and came up immediately with Richard Lamm, an environmentally notable and highly respected young lawyer serving in the Colorado State Legislature. We knew Dick from his conservation work with the Colorado Mountain Club, including legislation to regulate billboards in Colorado. Here was the perfect person to work with Vic Yannacone. To our delight, Dick Lamm accepted the role. His brother and law partner, Tom Lamm, could also help with some of the details.

For the Defenders of Florissant, Bettie and I chose in addition to Dick Lamm, Roger Hansen, Executive Director of COSCC; Rick Bradley, Professor of Physics at Colorado College; the admirable State Senator John Bermingham; John Chronic, Professor of Geology at the University of Colorado; Dick Beidelman, Professor of Biology at Colorado College; Bob Weiner, Chair of the Grand Canyon Workshop; conservationist Ed Connors of COSCC, and a few others. Yannacone and Lamm laid plans to file suit in the U.S. District Court at Denver on July 3, if possible. Yannacone was optimistic that he could secure a “stay on the bulldozers” hired by the real estate developers if we had a sympathetic judge.

The Defenders had their first meeting the afternoon of May 28th. We met at my house and discussed how the group would work together. On Victor’s instructions, we made lawyer Roger Hansen chairman of the Defenders of Florissant, Inc. and Bettie was to serve as Secretary. I was told to stay out of the Defenders because I was a Department of Interior employee. Yannacone wanted to be able to call on me for deposition and as a witness for testimony in court without creating a conflict of interest for me with an issue related to the National Park Service, another branch of the Interior.

In case the legal approach failed, Bettie and I were also trying to find a source of major funding to perhaps buy the huge Gregg tract that fell within the boundaries of the proposed monument—1,800 acres under contract for $150 per acre to the Park Land Company, which informed the Defenders that they wanted more than twice that much. The Nature Conservancy had turned us down saying the required sum of around $540,000 was way too large. Bettie was in touch with Huey Johnson, a well-known conservationist in the San Francisco Bay area known for his ability to raise a great deal of money for environmental protection projects. I was also in touch with the El Pomar Foundation of Colorado Springs, one of the largest and oldest private foundations in the Rocky Mountain West, with assets totaling more than $550 million, and known for their grants for community stewardship; but we were not getting any takers for the huge amount of money needed to buy the property.

Nervous that the National Park Service might not know what was happening on the ground in Colorado, both Bettie and I had each written detailed letters to George Hartzog, Director of National Park Service, explaining the great danger to the Florissant valley and the proposed monument. We told Hartzog that the papers for sale of the eastern third of the monument will probably be completed on Tuesday. The developers will hold off on subdivision for 10 days after May 27. I did not receive any response to my letter, though I was able to discuss it with the Associate Director Hummel during the May 29 public hearings. At our urging, similar letters went that week to Director Hartzog from the Colorado Department of Natural Resources, and the Board of County Commissioners of Teller County. Russ Train, Under Secretary of Interior, also wrote Aspinall on May 26 recommending with small amendments the passage of the current House Bill on Florissant.

With the Defenders of Florissant born, we were all preparing for the Senate hearing scheduled for May 29 in Colorado Springs. This important event would be the opportunity for the senators to hear opinions from the general public about Senate bill 912. On the drive back from Florissant on May 27, Yannacone had asked what I was going to say at the public hearings. I rattled away talking about the significance of Florissant fossils in understanding the evolutionary sequence of Rocky Mountain floras, the climatic implications, and other matters. He said, “No good, Estella. You have to do better than that!” So I tried again. He said, “No, you must broaden your message. Give it a try.” I struggled again, still with the emphasis on science. And he said, “Now what are the real values of Florissant to the public and to posterity?” I shall never forget his grilling me, and, of course, it was critical to try and appeal to the public conscience with our testimony.
After I delivered the Yannacones to their hotel that night, I stayed up composing my message for the hearings. It was all about putting A-frame cabins on top of one of Earth’s ancient treasures and about the fantastic field experience the Florissant valley offered. It was a challenge. I was sure Bettie Willard and Roger Hansen were struggling with their statements, too.

The Hearing

The Senate field hearing took place at the Little Theater of the Colorado Springs City Auditorium. We all dressed for the occasion and drove down to the city early. Senator Alan Bible of Nevada, chairman of the Subcommittee on Parks and Recreation, presided, and Colorado Senator Gordon Allott and the staff representative for Senator Peter Dominick were present. The hearings were attended by a distinguished assemblage of congressmen, scientists, government officials, civic leaders, and important local citizens. The protagonists were loaded for bear, so to speak. Bible opened the proceedings by announcing that the morning would be devoted to testimony and that he was looking forward to an inspection trip of the fossil beds themselves in the afternoon. A National Monument should, he said, using a National Park Service definition, “embrace a sufficiently comprehensive unit to permit public use or enjoyment of the scientific features or assemblage of features consistent with the preservation of said features.” From the descriptions furnished by his colleagues, Bible said, “[the area] meets all the criteria with some to spare.”

The Senate Bill under discussion, S. 912, would appropriate a sum of $3,200,000 (later amended to $3,727,000) for the acquisition of a 6000-acre Fossil Beds National Monument, and for necessary development and personnel for the first five years of the proposed program. That included funds for a paleontologist, a park naturalist, and a caretaker, among other things.
Senator Allott was the first to testify. He stated unequivocally that the monument should include 6,000 acres, not 1,000 acres. Then Senator Dominick’s statement was read into the record, also asserting that the monument should not be smaller than 6,000 acres. Approval of S. 912 was an urgent matter, he said, and referred to a map showing the real estate developments that had already been popping up on the very borders of the proposed monument.

Following testimony from elected officials, a string of 23 well-known people spoke or submitted written statements strongly in favor of preserving the fossil beds as a national monument. The witnesses, one by one, built an overwhelmingly unanimous, diverse and personally appealing plea for the monument. Conspicuously lacking were voices of dissent. Senator Bible asked a great many questions about the distance from Denver and from Colorado Springs, the number of cattle on the land, and the main land uses in the area. Speaking for the National Park Service, Mike Griswold provided many of the details. Thirteen landowners were involved, he said, and 10 farm residences, though only two of the farms were used year around. There were as many as 26,000 visitors recorded per year at the Singer ranch.

A representative of Colorado Governor John A. Love spoke, followed by state senator John Bermingham of Denver. Bermingham recalled his mother’s description of a huge petrified slab of fossil wood that was used as their dining room table, which his family was convinced came from Florissant. Realizing that the state could do little to protect Florissant through purchase because of minimal resources, Senator Bermingham had introduced a bill into the 1967 Colorado state legislature, Senate bill 385, which described the metes and bounds of the fossil beds area and at least declared it a site of great scientific interest. Any heavy equipment used in the area without a permit from the Colorado Game and Fish Department was declared a misdemeanor. Landowners within the area were to have their property tax rate reduced. Though the proposed bill seemed a great idea when it passed the state senate, it died in the house.
When it was his turn to testify, Teller County commissioner Joe Burns read a letter the Entomology Department of the American Museum of Natural History had sent: “Florissant is a magic word known to scientists throughout the world for one of America’s treasures…In this small area are preserved in readily available form more species of terrestrial fossils than are known from anywhere else in the world.”
The turn of Dr. Harry MacGinitie, the famed paleobotanist from the University of California at Berkeley, came soon thereafter. MacGinitie, who had written the definitive monograph on Florissant plants and was still considered the leading authority on Florissant at the time, also stressed Florissant’s international reputation. “[T]he fossil beds are widely known over the world for the wealth of fossil plants, insects, and fishes which they contain,” he said. “The combination of life forms, their abundance and their beautiful preservation is unique…The contrast between the environment of the present and that shown by the fossils, the climate and vegetation, is practically absolute.”
“This brings us to face a question of values,” MacGinitie continued. “The land occupied by the lakebeds is not of particularly great value, either for housing or agriculture, but as a page of earth history from the dim past it is priceless. You can’t put a price on it, there isn’t anything else like it. The area is unique and unrivaled. I know of no other spot in the world that has just the combination of all the ancient life remains that are found at Florissant, and it is well known over the world. My colleagues in Europe and Japan, when they come to visit the United States, always want to know where the Florissant beds are, and want to visit the Florissant beds. There is hardly an elementary geologic text that does not mention the Florissant fossil area.”

Mac showed the senators his book on the Florissant flora, published by the Carnegie Institution in 1953. “You mean we can have this book, Doctor?” Bible asked. The scientist responded, “No, you can’t have it.” (I knew it was his only copy!) Sen. Bible then said, “You mean I can look at it, but I have to give it back?” “Eventually, yes,” said Mac. The two went on to discuss the fossil palm leaf and its importance, as well as the unusual abundance of Sequoia stumps.

The next person to present testimony was Bettie—Dr. Beatrice E. Willard, co-chair of Thorne Ecological Institute. She told those assembled about visiting the Italian town of Pompeii, once buried in volcanic ash, and why it was a good analogue between more recent times and the much older valley of Florissant. The Florissant beds, she went on, were “comparable in the record of life on this planet to the Dead Sea Scrolls of Biblical fame, the Rosetta Stone that unlocked the secrets of the ancient Egyptian civilization, the Gutenberg Bible that records the first Western printing.” With urgency in her plea for prompt action, she concluded, “Can we even contemplate [any action except] prompt, immediate approval and attendant action to create here a jewel in the National Park Service—[thus] preserving intact one of the world’s absolutely priceless scientific treasures? Will we be too little and too late? We certainly face this imminent possibility.” As the morning passed, I grew more and more impressed by the dedication of those who came from near and far to testify. The hearing embodied a prime example of American democracy at work.

Then, it was my turn. My pitch was on the educational and aesthetic value of Florissant for the public. I said:

“The story of evolution … is a pretty stirring and acceptable concept. [If you] tell a tale of post-Eocene evolution…on the flanks of the old Lake Florissant with the fossil quarry spread out before you, the eyes of the people from 7 to 70 are sparkling. [You see that] the old Oligocene [sic] landscape is still at hand … as a beautiful stage with minor changes, and the fossils are the actors. [But if you] tell the same story in the lab; show the same kinds of fossils to the same kinds of people, they think you are talking about science, and the drama of Florissant history doesn’t come through. [If you] eliminate the stage and put the fossils under glass with typed labels—it is like drawing curtains on the drama.”

I talked about having led many, many people to the field at Florissant in order to show them the spectacular setting of this 34 million-year-old lake, describing how the lake formed and pointing out the tremendous array of fossils there—literally a whole ecosystem of them—and what they can tell us of the history of life. I spoke as a botanist, as a student of fossil floras in the Rocky Mountain region: “Florissant fossils are perhaps most noteworthy because they span the interval from 34 to 38 million years,” I said, thereby bridging “an otherwise huge gap in the plant record of the region,” a gap in the record that is singular in our history—the last subtropical warm period before our climate cooled suddenly at the end of Florissant time. And, in response to a question of Senator Allott’s, I suggested that with some careful excavation at the site, visitors could walk up hill, level by level, and see a series of steps in evolutionary time.

“Today when the new society is tossing out remnants of past cultural patterns,” I concluded, “it may seem unpopular to bother with saving a priceless scientific field library like the Florissant paper shales with all their fine print. But I ask you, how can man keep a perspective on his direction and life’s path if he loses track of the routes that life has followed before him? How can man evaluate his planetary environment and visualize his historic place in it if he does not keep and cherish a few touchstones with the past? When we have studied the moon, will we throw it away?

What you do about the proposed Florissant National Monument, gentlemen, will be a matter of history.… It is a historical observation that founders of Yellowstone Park and Grand Canyon National Monument, for example, are long remembered for their foresight, while those that opposed, no one ever hears about anymore.

If Florissant is not given national monument status this year, I fear all we will have is its old address.”

The scientists who spoke that day all described how they used the study of the fossil beds for their classes or for environmental field trips. In a different vein, when Ruth Weiner, representing Colorado Open Space Coordinating Council, stood up to testify, she rattled off the names of 23 member clubs or groups that wholeheartedly supported S. 912. The senators were duly impressed.
In his remarks toward the end of the morning session, Richard Beidleman of Colorado College clearly summarized the Florissant situation on the ground for the senators:

“The Florissant beds represent a page of the world’s geologic history book opened to a unique chapter of the Oligocene [sic] setting in America. From this chapter, for example, has come the most complete picture of fossil insects in the New World. Destruction of such a site is comparable to what we might think of as a geological book burning.

There are a number of national monuments and national parks in the United States which preserve fossil remains. But no such preservation exists within the State of Colorado; and throughout the national park system, which attempts to display the many pages of our country’s geological history, pages dealing with this particular portion of past life on earth are lacking—and may never be displayed if no action is taken at this time.”

Other academics giving testimony included Peter Robinson, Professor of Geology at the University of Colorado who stated, despite large existing collections, “Detailed scientific excavations using modern statistical methods and controlled excavating techniques have not been made [at Florissant, and m]ore useful information …will be derived from future work. [This] would be impossible if the deposit were destroyed by development.” John Chronic, also Professor of Geology told us: “I have taken hundreds of University of Colorado students…to this unique area…My thoughts turned as early as 1956 to efforts to get [it] set aside as a monument.”
Finally Richard Bradley, Physicist at Colorado College and member of the National Parks Association, made the following classic statement:

“[W]e have here a most unusual circumstance, perhaps without precedent in recent legislative history; namely, a proposal is being made to put a substantial piece of land under the protection of the National Park Services, and it stands virtually unopposed. Contrast this with the long bitter battles that raged over the creation of a Redwoods National Park or a Marble Canyon National Monument. If this bill fails to pass, it will not be because powerful lobbies were arrayed against it, but because this Congress, deeply involved…at home and abroad…could not seem to find time to consider it…We hope you gentlemen will not allow it to happen…[T]he preservation of prehistoric fossil beds may be deemed an insignificant issue compared to those other desperate problems. But it is not insignificant, as the sponsors of this bill well know; for the greatness of America lies not just in its genius to get men to the moon and back, but rather in the sum total of all the experiences and opportunities it can offer its people. The freedom—or the opportunity—to decipher the story of the earth from the messages encoded in rocks is as important to our culture as the freedom to use a public library.”

Senator Bible said he understood the urgency of the situation. He commented at the end of the morning’s hearing that he felt “a little lonely” that there had been no opposition to the Monument in the hearing. The only slightly negative tone came in a letter Agnes Singer and her son Bob, as owners and operators of the Colorado Petrified Forest, submitted for the hearing record establishing that they were not in agreement with the government’s low valuation of their properties.

At noon the Senators hosted a small group of public officials, along with Dr. MacGinitie, Bettie, and me, for a luncheon at the Ramparts Room on the fifth floor of the Antlers Hotel in downtown Colorado Springs.

After the hearings the senators and several officials as well as the press drove to Florissant for the field trip—our chance to show the senators the beauty of Florissant. Even though all were in their Sunday best, MacGinitie, Bettie, and I managed to show the officials around, dig a few fossils, pull out the hand lenses, and talk about the importance of the beautiful fossils they were digging. It was quite festive. The press came out in force to photograph the event (Figures 3.3, 3.4). It was exciting to walk among the fossil stumps with the senators. And it was marvelous to have the famous Dr. Mac MacGinitie of Berkeley with us there (Figure 3.5).

The next day the Rocky Mountain News ran a story with field photos about the hearing, entitled “Will It be Fossil Beds or More A-frames?” describing the parade of witnesses pleading for the establishment of the 6,000-acre National Monument. Ten days later, Science magazine came out with a short but powerful and supportive editorial by Philip M. Boffey entitled “Famous Fossil Beds Are Endangered” that described beautifully the stressful situation at Florissant to a national audience.

Two days after the hearings, we at COSCC announced a Florissant financial crisis and an accelerated fund-raising campaign. Some proceeds were required to pay the lawyers, their travel and certain court costs, and much more might be needed to purchase the Gregg tract, now priced by the realtors at the extraordinary sum (for those days) of $540,000. For the lawyers alone, we had to raise a minimum of $2,500 for Dick Lamm and $3,500 for Victor Yannacone.

Intermezzo

A relative quiet settled over the Florissant campaign after the hearings at May’s end. We now had time to put more pressure on the House of Representatives and to pursue funding. We got out another flyer on June 12 urging our audiences to “write your Congressmen and Senators” supporting bills dealing with Florissant. I put together a long list of paleobotanists and paleontologists from Harvard to Berkeley and sent our publicity around. Even during this quiet period, the media continued to be a tremendous help in arousing public sentiment. Out of California on June 15, for example, came an article on Florissant and the importance of monument status by Elizabeth Rogers in the Sierra Club Bulletin. That reached a lot of people nationally. On the same day, an editorial entitled “Preserve the Florissant Fossil Beds” appeared in the Rocky Mountain News.

To our delight on June 20, Bettie and I each received great news by telegram; mine read as follows:

JUNE 20 69 5:23 PM EDT.
DR ESTELLA LEOPOLD, COLORADO MOUNTAIN CLUB
DELIGHTED TO REPORT S. 912, AUTHORIZING THE ESTABLISHMENT OF A 6000 ACRE FLORISSANT FOSSIL BEDS NATIONAL MONUMENT PASSED THE SENATE TODAY. I APPRECIATE ALL THE WORK YOU PUT INTO THIS MATTER AND KNOW THAT YOUR TREMENDOUS ASSISTANCE DURING FIELD HEARING CONTRIBUTED TO SUCCESSFUL PASSAGE OF THIS BILL. THANKS AGAIN, AND BEST REGARDS
GORDON ALLOTT UNITED STATES SENATOR

The Denver Post headline read “Florissant Fossil Beds Bill Cleared.”The bill authorizing the national monument had passed in the Senate with flying colors. “This bill was pushed through faster than any I can remember since coming to Washington,” Senator Allott told the Denver Post. It had been only four months and two weeks from introduction to passage. Senator Clifford Hansen of Wyoming opposed the 6,000-acre monument and the new bill, but he was talked into not voting, which was the closest there was to dissent in the whole affair. So except for this abstention, it may have been unanimous. The vote of course was exciting, despite the five years of stalled efforts in Congress to get it. Now we needed a vote in the House.

On the previous day, the Teller County Commissioners took a stand in support of protecting the area of the proposed monument. They passed a resolution that the lands in Township 13S, Range 70 W and 71 W (the location of the Gregg tract), “shall not be subject to subdivision regulations” previously adopted and hence could not be subdivided. Technically this local political action showed important support for the creation of a national monument in the valley.

For Want of an Abstract

It was sometime in June that the “abstract of title”—a document summarizing the details about ownership of a piece of land, including all conveyances and any burdens or charges on it—for the Gregg property somehow could not be found at the Teller County Courthouse. A buyer usually wants to have this at the time of closing as assurance that there are no liens against the land that might sour the deal.
If the document had once been there, it had mysteriously disappeared. The Park Land Company needed the abstract to close the sale, and without a deed, the company could not begin development. The rush to development had stalled, at least for the moment. The Defenders were probably thinking “The Lord does his work in mysterious ways.”

The moment did not last long. In the midst of an annual Thorne Ecological Institute conference that Yannacone (Figure 3.6, Figure 3.7) and several of us were attending in Aspen in early July, we learned that the Park Land Company was planning to close their contract with a “quitclaim deed”—in effect, a way to transfer a land parcel without a warranty of title. Not a minute could be wasted. We immediately packed and drove back to Denver to be ready for a court challenge to any impending changes on the land. Bettie had to stay behind because she was leading the Aspen environmental conference.

Dick Lamm filed a suit on July 4 in the U.S. District Court on behalf of Defenders of Florissant, Inc. and the Colorado Open Space Coordinating Council. The suit asked for a temporary injunction to restrain landowners from defacing the land set aside for the proposed monument. Promptly the Rocky Mountain News headline read “Group Seeks Injunction to Preserve Fossil Beds.”

In order to clear the way for me as a federal employee to testify in court on the Florissant case, Dick Lamm had written the Director of the U.S. Geological Survey requesting his permission, which the Director granted. Victor Yannacone heavily edited my affidavit for anticipated use in court. On Tuesday, July 8 I signed it hurriedly, and somewhat reluctantly, as not all of the expressions were what I would have used. Vic talked me into letting them use the version I signed, because it had been given to Roger Hansen who was ready to fly to Washington to bring our suit to the Supreme Court, should their intersession be needed. Supreme Court Justice Byron White of Colorado was an acquaintance of ours. We hoped to obtain his interest in the matter. This was a fall-back plan, in case we lost the court case in Denver and were unable to appeal to the 10th Circuit Court of Appeals. Our first hearing was scheduled for the next day, July 9, in Denver.

The night before the court hearing I developed a major case of jitters and worry. Oh how we needed to win on the morrow!

 

Chapter 4. Fossils Go To Court

{Estella Leopold}

“Public sentiment is everything. With public sentiment nothing can fail;
without it nothing can succeed.” Abraham Lincoln

On the morning of Wednesday, July 9, 1969 Victor Yannacone, Dick Lamm (Figure 4.1), Tom Lamm, several other Defenders of Florissant, and I, along with several friends from the Audubon Society, approached the Federal District Courthouse in downtown Denver. The courthouse is an imposing, Greek-columned, white stone building, and we entered the courtroom of Judge G. Hatfield Chilson with some trepidation.

The defendants, the Park Land Company, planned to excavate roads and culvert ditches in preparation for real estate development on the Gregg Tract of the Florissant valley (see Figure 3.1). Under the auspices of the Defenders of Florissant, we were asking for a temporary restraining order and were in Court to show cause why such a restraining order should be imposed before any development occurred. At the outset, Judge Chilson posed the question of whether he even had the authority to issue such an order.

To address the fundamental issue of the court’s authority, Yannacone laid out the main arguments in the Defenders’ Complaint:

  • The proposed Florissant monument is a national natural resource treasure
  • The sovereign people of the United States have the right to enjoy the unique values of the Florissant fossil beds without diminution and degradation
  • Degradation of this unique, national, natural resource treasure violates the rights of the people of the United States and unless restrained by the court, the Defendants will develop the area in such a way as to cause serious, permanent, and irreparable damage to the unique Florissant fossil beds. Road building, excavation, or covering the fossil beds with permanent dwelling units is not compatible with maintaining this national natural resource treasure, for the full benefit, use, and enjoyment of the people of the United States not only during this generation, but generations yet unborn.

Yannacone pointed out that the defendants (the Park Land Company, Claude R. Blue, Kenneth C. Woford, J.R. Fontan, and M.L. Barnes) intended to commence construction immediately. He noted that the nature of the fossil beds was such that “the injury, which may be inflicted by the defendants if they are permitted to develop the area without regard for this natural national resource, will be irreparable in that it cannot be adequately compensated in damages.”

Yannacone’s motion demanded that the court issue such orders as would protect the unique paleontological, paleobotanical, geological, and palynological values represented by the Florissant fossil beds pending a final hearing and determination of the action. An affidavit I had prepared on the value of Florissant was included to support the complaint. Lamm and Yannacone also submitted minutes from the Teller County Commissioners meeting of June 9 and their resolution stating that the Gregg property area should not be subject to subdivisions.

Making the Case</h3
In stating the Defenders’ case, Yannacone argued on constitutional grounds. Later describing the Florissant litigation in his treatise, Environmental Rights and Remedies, he wrote, “ Legally,” the Defenders “argued that the right to preservation of the unique and irreplaceable Florissant fossils, [because those fossils were] a national, natural resource treasure, was one of the unenumerated rights retained by the People of the United States under the Ninth Amendment of the Constitution and protected by the due process and equal protection clauses of the Fifth Amendment, and the rights, privileges and immunities, due process and equal protection clauses of the Fourteenth Amendment.”

In addition, Yannacone asserted that “the Florissant fossil beds were subject to protection under the Trust Doctrine.” He was referring to a principle of law with a very long tradition whereby the State, even the British Monarch, had an obligation to protect certain resources for public benefit. As Yannacone put it, “while the defendants could profit from their nominal title to the land and make reasonable use of the area, they were under a duty to maintain that portion of the property vested with public interest, the 34 million-year-old fossil shales.” He argued the Ninth, Fifth, and Fourteenth Amendments to our Constitution, particularly the Ninth, which states that the rights NOT specifically enumerated by the Constitution are deemed to be retained by the people of the United States. He asserted that one of those unenumerated rights of the sovereign people of the United States is the right to the full benefit, use and enjoyment of an irreplaceable natural resource. Because of its unique paleontological, historical and scientific values, the Florissant area should be appropriately held in trust for the benefit of the American people.

Yannacone called upon the federal courts to exercise their traditional equity jurisdiction by invoking the centuries old maxim, “equity shall suffer no wrong without a remedy…unless restrained by order of this Court,” Yannacone said, “the Defendants will develop the area to be included in the proposed Florissant Fossil Beds National Monument, in such a way as to cause serious, permanent and irreparable damage to the unique national natural resource treasure that is the Florissant Fossil Beds.”

Rendering a Judgment

Judge G. Hatfield Chilson held that nothing in the U.S. Constitution prevented landowners from using their property in any way not prohibited by law. He did admit that preserving the fossil beds was important. In addition, Judge Chilson refused to permit our attorneys to enter in the Court record any supporting documents other than the papers submitted with the Order to Show Cause that Bettie and I had helped prepare. We did not serve every single partner in the Park Land Company because some were on travel and unavailable. Chilson summarily dismissed our case. The ruling was a shock to us.

After Judge Chilson’s decision that day, an informal conference was held in the hall outside the courtroom between Yannacone, Lamm, and me for the Defenders of Florissant and Johnson and two of the land company partners including Mr. Blue. Judge Chilson had suggested the conference to see if the defendants would agree to some voluntary restraint of their bulldozers.
Unfortunately, the road they planned to cut went very near the place I had shown to the Senators as an ideal spot for a “walk through time” type of display, similar to exhibits at Dinosaur National Monument in Colorado and Utah. The proposed road would destroy significant scenic values we believed, as well as cut through the notable “fish beds” fossil locality (see figure 2.4).

The defendants, not surprisingly, said they doubted if the severity of the damage would be as great as I had suggested. Yannacone asked for time before the bulldozers would run, and they promised to delay the bulldozers only five days, until Monday, July 14. Once again they offered to sell the southern part of the potential monument lands to our organization in the next three days for $350 an acre, but only if we could give assurance that very day that we would pay the price in full ($540,000). We, of course, did not have the money.

Just as the conference was breaking up, Yannacone announced we would appeal to a higher court (the 10th Circuit Court), and he held out a new brief. Johnson shot back, “Two of the four members of the Park Land Company are out of the country—just try and find us!” To which Yannacone replied, “Do you mean to imply that you don’t think you have been served?” Yannacone was in effect officially notifying Johnson that we were appealing and that we expected him to appear. “Try and find us!” Johnson repeated. Yannacone raised his voice and extended the motion papers toward Johnson, saying, “Everybody be a witness! I am handing this Notice of Motion and Appeal of our case to Johnson.” Johnson did not take it. Yannacone threw it on the chair next to Johnson and said, “Well, there it is. I’ll see you in court.” As we left, we heard Johnson and the two defendants snickering at us.

The Defenders of Florissant felt that the land company’s “purchase or else” proposal was a form of community blackmail. Yannacone and the Lamm’s got busy preparing arguments for an appeal. For example, Chilson had not permitted us to enter a copy of the Florissant Master Plan into the court record. Colorado State University graduate student James Thompson writing a paper on the Florissant case, commented later, “These development guys didn’t know it, but they were trying to sandpaper a wolverine’s nose.”

The next day the United States Court of Appeals for the Tenth Circuit heard our appeal. In conjunction with the appeal, Yannacone filed a motion to censure Judge Chilson for his courtroom behavior.

For the appeal to the Tenth Circuit Court, it looked at first like we were again in a bind. With two of the partners conveniently out of the country and a third nowhere to be found, it was impossible for the Defenders to give notice to all the partners of the Park Land Company in time. And serving one partner, the court had just ruled, was not adequate service upon [notice to] the entire partnership, a technicality. Yannacone, however, thought such a strict construction of the rule could be challenged.

The Defenders’ Appeal

On Thursday morning July 10, Yannacone and the Lamms had drafted a reply to counter claims raised by the Park Land Company. On his way to court to file the papers, Lamm received a telephone call (probably from lawyer Johnson) full of bad language, cussing him out, but informally reporting that they would be willing to accept $350 per acre not to start bulldozing. They also reported that a bulldozer was poised, waiting for the court to resolve the issue, at the place on the Gregg tract where the developer’s road would begin. Would the bulldozers roll into the fossil beds, win or lose?

The night before, Dick Lamm had driven to Colorado Springs with Mark Hogan, Colorado’s Lieutenant Governor, to see Claude Blue. They found Blue leading a Democratic Party meeting. They tried to “talk some sense into him,” as Dick put it, but to no avail, it seemed.

On Thursday, July 10 at 2:00 pm, the Defenders of Florissant and their attorneys, Yannacone and the Lamms, met again in the small historic wood-paneled court room of the United States Circuit Court of Appeals for the Tenth Circuit. Chief Justice Alfred P. Murrah and Associate Justices Jean S. Breitenstein and John J. Hickey filed in, garbed in their long, black robes. The room fell silent in anticipation. With the Park Land Company partners and their lawyer nowhere in sight, Chief Justice Alfred P. Murrah convened the court.

Yannacone presented a marvelous case for Florissant. He described the proposed road and the fact that the bulldozers might even swing into action that day or at least by Monday. He related our conversations with the Park Land Company and mentioned that they had offered us the chance to buy the land if we could produce the asking price of $350 an acre in cash within three days, even though the company had recently closed the deal with Mr. Gregg for $150 an acre with no cash down and no terms.

During the afternoon hearing before the three appellate judges, Judge Hickey questioned whether the Court had authority to issue a restraining order in the absence of any statute protecting the fossils. Yannacone responded, “I must admit that Congress in its infinite wisdom has not seen fit to pass legislation protecting fossil beds in general. However, if someone had found the original Constitution of the United States buried on his land and then wanted to use it to mop a stain on the floor, is there any doubt they could be restrained?” One of the judges then said, under these circumstances he might issue a restraining order. Yannacone responded “whatever legal precedent you’d use there, I’m using here.”

Yannacone told the court about the pending Congressional action. The courts were the only way to stop the bulldozers and save the fossil beds from potential harm in the interim, he said. He presented a review of the scientific merits of the fossil beds and went through far-reaching arguments about how fossils, modern air pollution, and climatic change are connected.

With references to both the ancient and the divine, Yannacone closed with a flourish. He picked up a fossil palm leaf that had been uncovered on the Gregg tract at Florissant, and holding it up to the court, pleaded:

“The Florissant fossils are to geology, paleontology, paleobotany, palynology and evolution what the Rosetta Stone was to Egyptology. To sacrifice this 34 million-year old record, a record you might say written by the mighty hand of God, for 30-year mortgages and the basements of the A-frame ghettoes of the seventies is like wrapping fish with the Dead Sea Scrolls.”
Then he sat down.

The judges asked a few questions during Yannacone’s presentation, but we could not tell which way they were leaning. Judge Jean Breitenstein suggested that the U.S. Attorney could have been called on to stop the dozers, but Yannacone pointed out that there would be no authority for such an action until Congress had passed the bills creating a monument. The judges excused themselves for a “few minutes,” which turned into a 35-minute recess, as they talked and apparently read our papers. We stood outside the courtroom praying and crossing our fingers. We were short of breath.

The judges reconvened the court. In a two-sentence ruling they said they had deliberated and decided to issue a temporary restraining order until July 29 when the case would be heard on its full merits in District Court. They asked if Yannacone would draft an order that they could sign. I looked around the courtroom. The faces of the Defenders were wreathed in smiles, and there were many misty eyes. It was an electric moment. The court asked if we would withdraw the motion to censure Judge Chilson, and Yannacone declared he would be happy to do so. As we left the courtroom, Bettie and I hugged everyone. We all were very excited.

The restraining order Chief Judge Murrah’s three-man Court of Appeals issued was unusual. The length of the stay, most often 10 days or less, was, at 18 days, longer than customary. How lucky for us! It read:

“IT IS ORDERED that the defendants, jointly or severally, individually or collectively, or by their agents, servants or employees, their contract vendees or their successors in interest, be and are hereby restrained from disturbing the soil, subsoil or geologic formations at the Florissant Fossil Beds by any physical or mechanical means including, but not limited to excavation, grading, road-building activity or other construction practice until a hearing on the merits of the plaintiff’s application for preliminary injunction to be heard in the United States District Court, District of Colorado, on July 29, 1969, at 9:30 A.M.

IT IS FURTHER ORDERED that service of this order shall be made by the United States Marshal on any workman engaged in construction activities at the Florissant Fossil Beds forthwith and that personal service shall also be made on each of the defendants subject to the jurisdiction of the Court. Dated July 10, 1969.
Signed by: ALFRED P. MURRAH, Chief Judge United States Court of Appeals
JEAN S. BREITENSTEIN, JUDGE
JOHN J. HICKEY, JUDGE”

Yannacone had told the court that Florissant was an ideal case for judicial intervention because of the near unanimity of support for the monument among groups and government agencies. Included were the President (who was apparently ready to sign the bill), the Senate, the House of Representatives (to all appearances), the Department of Interior, the Budget Bureau, the local county, the state of Colorado, and Defenders of Florissant. That included a large group of people, ranchers and enthusiastic supporters. Literally, there was no opposition to the plan except of course for the Park Land Company. Justice Murrah’s appeals court moved where and when no one else could or would.

The Tenth Circuit Court of Appeals order restrained the defendants from “disturbing the soil, subsoil or geological formations of the Florissant fossil beds by any physical or mechanical means…until a hearing and determination by the District Court on the application for a preliminary injunction.” This welcome order prevented bulldozing at least until July 29, when the court could hear the full merits of the case.

The following day, the Rocky Mountain News published a story about the decision with a photo of Dick Lamm, Victor Yannacone and me looking at a fossil. Under the headline “Court Order Halts Fossil Bed Project” they wrote, “In a precedent-setting ruling the three-judge court restrained Colorado Springs land developers from building an access road through the 34 million year old, world-famed area” (Figure 4.2). They quoted Yannacone as saying, “This court can’t countenance destruction of the 34 million year-old record, a record written (in stone).” A Dan Gibson cartoon appeared in the Rocky Mountain News in June showing a series of stone markers carved with the names of several established national monuments, reminding us that many fine monuments had been created before this proposal. The stone marker for Florissant was incomplete (Figure 4.3).

The environmental lawyer Zygmunt Plater, in his 2004 book Environmental Law and Policy: Nature, Law, and Society, commented about this unique case: “The argument Victor Yannacone made for the restraining order was bold and innovative. It was also without precedent.” Yannacone had made an eloquent case for why the People—as more than simply a term for the government—should have standing in a court of law. The judges did not make law by issuing a restraining order, but by their ruling they indicated that Yannacone’s argument was worthy of serious consideration. Concerning the unprecedented nature of Yannacone’s argument, law professor William H. Rodgers claims, “Yannacone had no theory and he had no law. His only source of hope was his own rashness. His argument was a figment of his imagination.” Yet on Yannacone’s creative argument hung the fate of the fossil beds. Yannacone insists today “there was a theory – the Trust Doctrine of Equity Jurisprudence and the natural law basis for the Ninth Amendment—and there was law—hundreds of years of English common law equity all of which became a part of American Jurisprudence in 1796—or we would not have won. Precedents are necessary only when the law is well established.”

After the court proceeding, Roger Hansen (Figure 4.4) called from Washington, D.C. and heard the good news. Roger was amazed. He had tried to reach Supreme Court Justice Byron White, but White’s office did not seem anxious to act, or would wait for the lower courts to decide first.

Dick Lamm called the Land Company lawyer, Mr. Johnson, that afternoon from the pressroom of the courthouse and was treated to a barrage of insults. Johnson had angrily called Yannacone a New York Jew, a bastard, and other inappropriate names. He disparaged the importance of the case and verbally attacked Lamm, who, indignant at the way he was being treated, finally slammed down the phone in disgust and stormed out of the pressroom. Despicable treatment is despicable treatment.

Lamm later that day called the relevant county officials we knew. He told them not to let the bulldozers move into the Gregg Tract because the appeals court had issued a restraining order and the marshal would be serving the papers to the defendants within two days.
At 4:30 pm that afternoon I put Vic Yannacone and his assistant on a plane to New York and went home to celebrate. The celebration, however, did not last long.

 

Chapter 5. Victory—in Court and in Congress

{Estella Leopold}

The temporary restraining order of July 11, 1969, from the Tenth Circuit Court of Appeals, was an unexpected blow to the private land developers’ intent on carving up the Florissant fossil beds. On the following Tuesday, July 15, Robert Johnson, attorney for the Park Land Company, and Claude Blue, a partner in the firm, filed a motion asking that the order of the appeals court be dissolved “on the grounds that it violates substantial and fundamental constitutionally guaranteed property rights.” According to the motion, “No precedent exists for authorizing the court to enter a temporary restraining order and enjoining land owners from making a lawful use of their land, merely because Congress may at some future time declare the area a National Monument.” The Denver Post put forth a headline reading “Florissant Company Seeks to Kill Order” (July 16, 1969).

At the time, no action seemed forthcoming from the House of Representatives to put the Florissant bill on the floor for discussion and potential passage. That could spell doom for the temporary restraining order, and ultimately for the Florissant site.

And then things began to move. On July 20, the New York Times published a persuasive story entitled “Fossil Beds in U.S. Go Unprotected—Government Fails to Act on Florissant Purchase.” The story carried a vivid quote from Richard Beidleman of Colorado College: “Destruction of such a site is comparable to what we might think of as a geological book-burning, especially devastating because there is only one irreplaceable volume on this subject in the universe.” Science News carried a story on June 21 entitled “A Treasure in Danger.” Still at this time we were aware that the sale of would-be monument land was going to real estate development (Figure 5.1).

As the Defenders of Florissant, we were trying to raise money in earnest to pay for the mounting legal costs. We issued a one-page flyer featuring an image of fossil insects and circulated hard copies to various groups under the title “Fossil Insects and Flowers Go to Court” (Figure 5.2). The press aided our efforts by publishing announcements that our campaign was in “fiscal trouble” and looking for donations. We set up an elaborate network of information and donation collection stations at several Colorado shopping centers. Sandy Cooper of the Thorne Ecological Foundation organized this effort helping us seek needed contributions. In Denver, these included five shopping malls, two grocery stores, and a department store. In Colorado Springs we had collection tables at five shopping centers, and in Boulder we had tables at three. The response was very helpful. To increase pubic awareness, we printed lots of green bumper stickers that said “Bail Out Florissant” and these showed a beautiful fossil dragon fly on the corner. It was fun to see these showing up around Denver and Boulder. The first environmental bumper stickers in Colorado were printed in 1963 to “Save Grand Canyon” so this was a second such use by our conservation groups.

The Wright Stuff

With only a temporary injunction in place, we were all anxiously preparing to go into district court again on July 29, when the full merits of the case would be heard. A few days before the court date, a Denver citizen, Mrs. Vim Crane Wright (Figure 5.3), called me. We had first met when I gave a talk about Florissant at the Denver Audubon Society a few months earlier. She had been following the case since in the press, she said, and wondered what we were going to do if we lost in court. I said, “Frankly, I don’t know, but I am hoping we will win.” If we lost, she asked, “What would you think if my lady friends and I went down to Florissant and sat in front of the bulldozers?” I said, “Great heavens, oh, you what? Well, we should certainly think about that.” I said I would carry her intriguing idea back to several of the Defenders and see what they had to say.

I saw Bettie Willard and Roger Hansen that evening and asked them what they thought. Bettie looked amazed. Roger shook his head and said, “Who is this person exactly?” And I said, “Well, I really don’t know. She just wants to hold up the bulldozers; in case we lose.” “Well,” ventured Roger, “tell her maybe that’s all right, but tell her just don’t use our name.”

I reported back to Mrs. Wright and offered to furnish her with a map showing the location on the Gregg Tract where the bulldozers were supposedly parked and where some sympathetic ranch friends, the Snares, could be found in case she needed anything. Members of the Colorado Mineral Society, I learned, were planning to join forces and go with her to the site as well.

Vim Wright’s team began their preparations. The team included Carolyn Johnson, then of Denver Mineral Society; Mary Burton, a resident of the Denver area; pregnant Sally Story of Denver, and another friend, Dona Ruth Buchan and her young daughter, Holly Buchan, and others from Denver. They planned to meet in Colorado Springs on July 29, and Vim asked me to telephone them at a local radio station with news as to whether we won or lost in court that day. She also contacted Representatives Frank Evans, Donald Brotzman, and Wayne Aspinall, telling them that she and her neighbors, including children, were going to block the bulldozers, and “they had better get that Florissant bill passed pretty quickly or she was going to be in real danger!”

Years later, Vim recounted in an oral history interview, “Then I thought of the enormity of what I volunteered for. I went right out and had my hair done, put on my pearls and high heels. I thought no self-respecting bulldozer driver would run over a woman in pearls and high heels.”

“Vim was the environmentalists’ and the quality-of-life brigade’s answer to a dream,” Dick Lamm later commented. “She was a smart woman who had lots of time [for the campaign]…The chorus—you always need a chorus. She was behind the scenes and organizing the people, making the drum beat in the press. I didn’t do any of that. We just handled the legal part.”

A Legal Rollercoaster

On the morning of July 29, 1969, we Defenders all met at the Federal Courthouse and discovered we were back in the hearing room of Judge G. Hatfield Chilson. Yannacone again presented our case and asked the court for a preliminary injunction. Before the first witness was called, Judge Chilson called Yannacone to the bench and said, “I’m going to give you your day in court and then I’m going to throw you out on your fancy eastern law school ass. It’s too bad you never learned anything about western law in that fancy eastern law school you went to.” The hearing then continued.

Judge Chilson allowed me to testify for over an hour. Just before I took the stand, however, Yannacone called John Ten Eyck, a Colorado State official he had subpoenaed the day before the hearing. He asked Mr. Ten Eyck whether he was attempting to lure business and industry from other states to relocate to Colorado. When Mr. Ten Eyck acknowledged that he was employed to encourage business and industry to relocate to Colorado, Yannacone asked him whether the Florissant fossil beds were one of the natural wonders and scenic attractions he referred to in his relocation efforts. When Mr. Ten Eyck testified that the Florissant fossil beds were indeed an important natural resource the virtues of which he regularly extolled, Yannacone asked him whether he could estimate the value of a Florissant Fossil Beds National Monument to the Colorado tourist economy. Extrapolating from Dinosaur National Monument, he estimated the value of a Florissant Fossil Beds National Monument at $64 million in its first year. This was to become a critical piece of evidence on the next appeal.

After I finished testifying Yannacone made his closing statement, expecting that the defense would present its arguments next. Instead, Judge Chilson reached into his briefcase, pulled out a nine-page decision he had already prepared, and began reading. He rejected all of the Defender’s arguments for the same reasons stated on July 9, adding acerbically that apparently Mr. Yannacone had not learned anything about the law of private property rights since his last appearance. When the judge finished reading, he denied our application for a preliminary injunction and firmly stated, “Case dismissed.” Immediately after the hearing, Park Land Company announced that bulldozers would begin excavation that afternoon.

The Defenders of Florissant met in the hallway. It was going to cost considerably more money, something in the neighborhood of $12,000, to appeal Judge Chilson’s decision, perhaps all the way to the US Supreme Court, our lawyers told us. That was just the cost of transcripts and printing the Appellate briefs and Record on Appeal. The lawyers were only having their expenses covered. We definitely did not have that kind of money. Bettie and I agonized over what to do. It looked like we were finished. Then I remembered to call Vim Wright at the Colorado Springs radio station to give her the bad news—to tell her we had lost in court.

As I drove back to the USGS office, depressed and worried, I turned on the radio and heard Vim’s voice from Colorado Springs, talking about the case. She announced that she and her friends, accompanied by the print media, were on their way to Florissant where they would lie down in front of the bulldozers to prevent the excavation.

Not much was likely to come of it, I suspected. Dispirited, I was still sitting at my desk when the phone rang. It was Bettie Willard. “Oh, Estella! Ed Connors says he has found the money—maybe $12,000. Get back here right away! We will appeal!” Amazed, I jumped in my car and hurried back to meet Dick Lamm, Tom Lamm, Vic Yannacone, Roger Hansen, and Bettie at the courthouse.

Yannacone and the Lamms had already drafted an affidavit itemizing the errors that Judge Chilson had made during the previous hearings. The judge, for example, had not permitted as evidence any of the documents other than the complaint and affidavits as part of the Order to Show Cause. Our lawyers took the additional affidavits, their legal brief, and my affidavit to the Tenth District Court of Appeals for a second time.

This time, however, it was necessary first to obtain permission from the Court to present the appeal and be heard. Before the panel would appeal and hear our argument for a preliminary injunction halting the bulldozers, Yannacone had to convince a single Judge, Jean S. Breitenstein, of the merits of the appeal. The Tenth Circuit Court of Appeals rarely heard arguments on appeal when a preliminary injunction had been denied by the District Court.

Judge Breitenstein was reluctant to grant our application and finally Yannacone argued that the uncontradicted testimony of John Ten Eyck, a Colorado State official, had established that the Florissant Fossil Beds National Monument would contribute an estimated $64 million to the economy of the State of Colorado and he reminded the Judge that “A hundred years ago when Colorado was Territory, if some bandit tried to steal $64 million from the people of the territory, they would have hung the bastard, so why are we arguing about a hearing now?” Judge Breitenstein left the Bench and a few minutes later, he returned with Chief Judge Murrah and Judge Hickey to hear our application for a preliminary injunction.

On that late afternoon of July 29, before the same three jurists who presided over our appeal of July 10 that we Defenders were seated along with the defense lawyer Johnson. Federal District Judges Murrah, Breitenstein, and Hickey appeared, the same three jurists who presided over our appeal of July 10. It was very, very quiet. Then, Chief Justice Murrah asked our lawyers to present our case.

This time, Yannacone expanded on our legal position by asserting, “Your honors, the Federal Courts have a duty to cooperate with Congress.” By issuing a preliminary injunction pending the final deliberation of the Congress of the United States, they would be aiding the “orderly operations of the Legislative and Executive branches of government.” Yannacone restated his view that the Public Trust Doctrine protected the fossil beds “because the land had acquired a public character due to the recent actions of Congress.”

At this point Robert Johnson, attorney for the Park Land Company, argued that damage from the development would be insignificant. It certainly would not cause serious, permanent and irreparable damage to the fossil beds because “the proposed roads would only gouge as much as 12 inches deep into the fossil sites, while each housing site would create a scar only 50 feet long and 30 or 40 feet wide.” Yannacone quickly challenged Johnson, stating that this is like saying you could scrape the paint off the Mona Lisa and it would not do serious irreparable damage because the canvas is still intact. Yannacone also challenged Johnson to give evidence that the defendants would lose money, as they had claimed, if the court issued a restraining order. He did not reply and the defendants had provided no actual evidence to the court that they would suffer any economic damage from a temporary restraining order.

The judges asked a few questions and then filed out. After a long wait we were finally told by a court assistant that the appeals court was taking our case under advisement; that is, they reserved their decision for a later time.

Bettie and I held our breaths. It didn’t sound good, but what did this all mean? But our lawyers informed us with big smiles that in effect we had won, as it meant the earlier restraining order would be continued until that later time when and if the judges reached their decision.

We suddenly became terrifically excited. Really? How wonderful! We hugged everyone over and over again. Oh my, Halleluiah! Oh my!

At the end of the hearing, Yannacone and Tom Lamm, followed by lawyer Johnson, headed for the elevator up to Judge Murrah’s chambers on the fourth floor. All the while Johnson was hollering loudly at Yannacone, calling him every name in the book. “You son of a bitch, you Kike from New York, you Jew boy, God damn you!” This went on right to the chamber door where Tom knocked. Expecting a clerk to open the door, they were surprised to see that it was Judge Murrah himself. The judge could not help but hear the foul language Johnson was firing at Yannacone. Murrah asked Tom Lamm (who used to clerk for one of the Circuit Court justices) to step into his chamber and closed the door. “Lawyer, what is going on?” asked Judge Murrah. Lamm explained what had transpired on the way to Murrah’s chambers. He added that we were now hopeful that the Congress really was about to act. (The House Committee had actually released the Florissant bill for consideration, which was a first step.) Judge Murrah then sat down at his desk and deliberately stated very clearly twice and carefully that a temporary restraining order only lasts ten days. “Lawyer, you know that,” he said. Then Murrah very purposefully opened the bottom left hand drawer of his desk and said, “Lawyer, see: I am putting the file on this case in here. You call me when this is over and Congress has acted [to create the monument].” Tom Lamm answered positively, “Yes indeed, your Honor! Indeed we will.”

As we left the federal Courthouse, Johnson turned to Yannacone and said, “I’m going to teach you how we practice law in white man’s country. Before you can serve the order we’re going to start bulldozing that road.”

Down on the first floor I remembered to call my rancher friend Nate Snare at Florissant, to find out what was happening at the site. I asked if he had seen the women and children that had planned to go down to the site if our earlier hearing that day with Judge Chilson hadn’t gone well.

“Yeah, I saw them,” said Nate. “They was carrying bedrolls as though they was going to stay the night. But they was all dressed up, so I could not figure that out. And some were carrying cameras.”

“Where are they now?” I asked. “Can you give them a message?”

“Well, I can try. This is a pretty big place, you know. “

“OK, Nate, please tell them that we just won in court; tell them we won our appeal in court. Got that? Be sure to tell them.”

When Vim Wright’s group of women returned from Florissant, they told us that they first had found the bulldozer drivers at the Thunderbird Bar in Florissant. The ladies went up to them and announced that they were going to block passage of the bulldozers. The men looked anxious and said, “Oh, you are?” But the ladies promised first to meet them in the field with a thermos of hot coffee and brandy, in case that sounded good to them. The answer was that, yes, they would share spiked coffee with the ladies at the site.

During the Florissant Fossil Beds National Monument’s fortieth anniversary celebration in August 2009, I talked with Mary Burton and later with Caroline Johnson, two of the women on Vim Wright’s bulldozer team. After visiting the Thunderbird bar, they said, they had driven to the location where the bulldozers were expected to enter the monument area.

I was fortunate to track down Holly Buchan, who as a child was a member of Vim’s “team.” Holly wrote:

“My mother “Didda” and Mrs. Wright were friends…They were very involved in historic preservation efforts in Colorado. As far back as I can remember, saving old places and old things was a value. I have a memory of being 4 or 5 years old and being swept into our station wagon by my mom, with a picnic basket for a ride to Florissant. I knew about Florissant and may have already been there before this particular trip. I was obsessed with fossils and dinosaurs. I had been impressed with how impressed my grandfather was by the big dinosaur words I could say. As a result I thought I was very smart and powerful.

At Florissant I remember meeting up with what seemed like many people we knew and many cars. Once out of the car I saw some big bulldozer-type vehicles. I remember standing and staring at them. They were big and fierce like dinosaurs. I heard my mom (behind me) saying something like “Just stand still. Don’t move, Honey! They won’t hurt you.” I felt like I was alone there to face down/stop the bulldozers from breaking all the fossils.

Now I know that it was actually John Wright’s mom who rallied the troupes and made the difference that day. My memory of this event is tiny but I have never forgotten it.”

For whatever reason, the bulldozers were there but the drivers never appeared. Something mysterious had happened. Much later, I learned that someone who could talk a good workman’s line with the correct country twang had called and scared the heck out of those bulldozer drivers. We were not told how that came about, but something certainly had happened. We will never know.

The day after our second appeal, July 30, a wonderful cartoon by the Pulitzer Prize-winning artist, Pat Oliphant, appeared in the Denver Post (Figure 5.4). It showed a black-mustached angry man in a black top hat sitting atop a bulldozer labeled “Developers” and gnashing his teeth. On the ground in front is a thin woman in high heels rolled up in a rug bearing the word, “Florissant.” Pat Oliphant kindly sent the original to Vim Wright at her home address in Denver. A headline appeared July 30 in the Coloradoan at Fort Collins reading “Court Order Halts Construction at Monument Site.”

Acts of Congress

On July 29, before the news of our court victory that day reached Washington D.C., the Colorado congressional delegation—Republican Senators Gordon Allott and Peter Dominick, Republican Rep. Donald G. Brotzman and Democratic Reps. Wayne Aspinall, Frank E. Evans, and Byron G. Rogers—sent a strongly worded telegram to the four officers of the Park Land Company. As quoted by the August 1 Rocky Mountain News, the telegram in part, read:

“We are informed that your organization has entered into an agreement to purchase a part of the proposed monument site, and that present plans provide for commercial development of the tract. It is our sincere belief that the Florissant lake bed is a scientific treasure house of national and even worldwide significance. As such, it would be tragic for these irreplaceable and fragile fossil remains to be disturbed or destroyed.”

Meanwhile, in Washington, D.C., the House appeared at last ready to join the Senate in moving forward on the Florissant matter. The first step had occurred on July 21, 1969, when the House Interior and Insular Affairs Committee, through its subcommittee on Parks and Recreation, favorably and finally reported out an amended version of the Florissant Fossil Beds National Monument bill. Floor action by the House was scheduled for August 4.

Even though Committee Chairman Wayne Aspinall was in mourning over the loss of his mother that week, on August 4 he called on his colleagues to waive the rules and bring the bill to the full House for action as soon as possible. On the House floor, Aspinall said:

“Mr. Speaker, I rise in support of S.912 as amended by the Committee on Interior and Insular Affairs.

As most Members of the House will recall, we considered and approved legislation authorizing the establishment of the Florissant Fossil Beds National Monument during the 90th Congress. That legislation had the same objectives as S. 912 but it differed in one significant respect—that is, it authorized the acquisition of 1,000 acres of land within a designated area of 6,000 acres; whereas, S. 912 authorizes the acquisition of the 6,000 acre area. I might say at this point that the 6,000-acre national monument had the support of both the current and past administrations…[I]n the judgment of the National Park Service, 6,000 acres is viewed as the minimum amount of land necessary to adequately accommodate visitors and, at the same time, achieve the preservation objectives of the area…The [Senate] bill explicitly limits the amount authorized to be appropriated to $3,727,000…In light of all these facts, Mr. Speaker, as chairman of the Interior and Insular Affairs Committee, I recommend enactment of S. 912.”

Earlier that day, after both Rep. Frank Evans and Rep. Byron Rogers of Colorado spoke briefly in favor of the bill and a description of the qualities of the Florissant fossil beds had been read into the Congressional Record, Rep. Brotzman stood anxiously before his colleagues on the House floor, defending the bill as reported from Rep. Aspinall’s Interior Committee on July 21. It had been a long wait for floor action. This was about the sixth such bill, give or take a few, that had been buried in Aspinall’s committee since 1964.

Representative Brotzman, apparently unaware of the Court’s continuance of the injunction four days earlier, or choosing to ignore it for dramatic effect, told the House:

“[E]ven though this priceless window into the Oligocene [sic] period has lain undisturbed for 34 million years now, its destruction could come this very afternoon…Early in July a coalition of citizen groups, fighting to preserve Florissant, won a temporary restraining order against a major Colorado Springs developer which plans to build A-frame vacation cabins on the site, prompting the remark ‘to build A-frames on this singular, national resource would be like wrapping fish in the Dead Sea Scrolls.’ That order has expired and the builder has announced plans to bulldoze his access road through the fossil beds today.”

Brotzman continued:

“In the light of the clear and present danger to this unique open-air museum, the House Interior Committee, at the direction of my distinguished colleague (Mr. ASPINALL) agreed to seek a suspension of the rules to bring this bill, S. 912, to create the Florissant Fossil Beds National Monument before the House.

Mr. Speaker, I would urge my colleagues to take this opportunity to prevent the destruction of a national treasure. Preserving the Florissant today will be relatively easy, but even 24 hours from now it may be futile.”

The House of Representatives did act—and quickly. They voted to bypass Rules Committee review of the bill after Rep. Aspinall termed it a measure of historical importance, triggering a voice vote that very day. One legislator was notorious for blocking any voice vote, which must be unanimously approved, by voicing his opposition on principle. But two friendly Representatives hovered over this fellow during the vote on Florissant so that he could not put in his “Nay.” With that, the bill sailed unanimously through the House. Florissant legislation had finally passed both houses of the Congress in some form.

The bill then went back to the Senate for approval of House amendments. And the Senate voted their final approval with a voice vote three days later, on August 7. The measure was flown by special courier plane on August 14, with other approved measures, to the summer White House in San Clemente, California, where it was signed into law by President Richard Nixon on August 20, 1969 (Public Law 91-60).

What excitement prevailed at the board meeting of the Colorado Open Space Coordinating Council later that month! There was “dancing in the halls!” We just crowed with delight at our success. It felt so good that we as citizens had worked together and had added our weight to the deliberations, influencing the American process of government. We cheered to the local, state, and national branches of government that had contributed to saving the fossil beds. We sent up big hurrahs for our lawyers, the grand band-masters conducting the action, and, of course, for our esteemed Appeals court justices. Tom Lamm later called Judge Murrah to inform him that Congress had acted to pass the bill, and President Nixon had signed it. Murrah—still holding the appellate papers in his desk—then replied, “Well lawyer, then I am sorry to tell you that you have lost your appeal.” It was the best “loss” Tom Lamm ever had.

Despite the judicial and legislative victories, the Defenders of Florissant still had work to do raising funds. Joanne Ditmar of the Denver Post issued an appeal for funds on behalf of the Defenders of Florissant in her column while Vim Wright and Ed Connors solicited donations from their Rocky Mountain friends. As a result, more than $12,000 was raised and the group was able to pay its bills.

Ironically, in the end, it may have been the single-minded development pressure from the Park Land Company that was a deciding factor in pushing Congress to act. Even so, it was the innovative action of our lawyers in designing a winning strategy that kept the land safe while Congress pondered. The broad spectrum of on-going public support, informed by consistent coverage from the media, also made a really important difference. Public pressure for preservation had built steadily from the early 1960s through the end of the decade. The experience we gained participating in this fight brought recognition and strength to the budding environmental movement in Colorado and to COSC.

At the end of the long summer of 1969, the saga of saving the Florissant fossil beds for federal protection was over. The threat of a geological ‘book burning’ was extinguished. The Florissant Fossil Beds National Monument was established for future generations to study and enjoy. Finally, the door was open for the National Park Service to move in.

 

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