COURT HEARING CONCLUDES /// REFLECTIONS AND WHAT NOW?

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    Mark Nadeau
    Keymaster

    A CALM REFLECTION: Court Hearing Redux

    If you thought our most recent reports on the court hearing involving our pursuit (Quest) of the Eisenhower Tunnel Traverse were a little “pointed”, you were not the only one. To be sure, we thought it was appropriate to call out our frustration. We seemed to have wandered into the Theatre of the Absurd, and our hard work over many years has been put at risk owing to some people charged with fairly considering our Special Permit Application who did not do their jobs. As is sometimes the case, those people are powerful. They represent the Transportation Department for the State of Colorado, and otherwise oversee the highways in a police capacity (the State Patrol). For a small business to go up against such POWER is intimidating, and expensive.

    What follows is a bit long. But, we ask you to skim it and stop where it grabs your interest.

    OUR QUEST AND OUR HISTORY: How did we get here?

    Historical Context: For those that do not know, a little background is in order. It begins with an early childhood in Colorado enjoying all the State has to offer. Hiking, Camping, Skiing, Horses, and, of course, bicycles. The bicycles were not carbon in those days and gear ratios were nominal. There were also no “bike paths” and a fair number of loose gravel roads. One of my earliest memories is falling down on my bicycle on loose gravel in a supermarket parking lot.

    Life went along, and by college riding the bicycle was the only form of transportation available as owning a car was out of the question. Working summer jobs and always having a part-time job after class was a way of life. Getting to and from all of it was done on a 10 speed that was a little too big for me, but it had a cool looking leather saddle. I became a school bus driver (early mornings and the afternoon/evening shift — coupled with transporting the sports teams on the weekend). A perfect job for a college student as I could do my classes in the middle of the day, and sit on the bus on the weekends reading my books while the sports teams were out doing there thing.

    One of my best friends was bent on becoming a Doctor (he did it). As a result, I got interested in being a Certified Medical Technician, and began teaching Advanced First Aid for the American Red Cross, including CPR (which served me well later on).

    Truthfully, I was really intrigued by medicine, but did not have the smarts to get past Organic Chemistry. More importantly, my mother had gotten me hooked on Abraham Lincoln and it followed that I wanted to be a lawyer. While scrambling to make up for my “B” grades, it was suggested I could go to the Police Academy and put that on my resume. It was offered in the evenings, along with some weekend work on driving, arrest procedures, martial arts, and guns. I loved it. I became a Certified Peace Officer for the State of Colorado and got employed as a full-time patrol officer. In my view, the police officers in our nation are the “front line”. I think they are underpaid. I also think they can be very good…and often disappoint. Being the best, and training to be the best — including interaction skills—is challenging, and rewarding. A career in law enforcement is a career to be admired. It can be dangerous, and it can be enormously important when you are first on the scene of a medical event or a confrontation. It is a profession that requires a selfless interest in others. Do it right, and you don’t ever have to think about CYA. [You also can meet some great people. I met my bride who is still directing me today!].

    Law School followed after several years as a full time officer. To begin, I knew nothing about the commercial business aspects of the law. Thirty years later, I’ve learned a lot. The best part about it is you need to keep learning. As with Bicycle Passport, that learning curve never stops.

    The Quest: The legal career demanded (and demands) a lot of hard work. My health took a beating as I gained weight. My weight has always been “a problem”. But, like many things, it does not get better without a fight. Bicycling became a tool in that fight. It can fail — as you all know—because riding can make you hungry. Right? But, persistence works. Hanging out with better riders than yourself also works. Having friends who push you and call you out to ride is — well, magnificient!

    In the early 2000s, I lost weight, gained it back, lost it again. You know the drill. Sadly, I was in the midst of climbing 14ers in Colorado and it was getting painful. Years of too much weight and falling off of horses seemed to have made my right hip a stiff board and arthritic. {Today the hip is a titanium golf club and works just fine}. For whatever reasons, bicycling did not bring on the pain in the same way. Years of Platinum Sponsorship for the Triple Bypass, the Copper Triangle, and the Tour de Cure taught us a lot about Events and brought us a lot of joy.

    The inability to hike the 14ers got us thinking. What is there for bicycles? Ah, the research commenced and the Bicycle Passport Quest was born. The old draft passports are a hoot to look at today. They started in various iterations and the size varied. We gave public audience to the Quest in late 2015 and had the Passports in hand by the summer of 2016. Then followed the App (get it). We researched the passes, and we researched the towns, breweries, hot springs and hotels along the way. All of this work is now available to our members on the website.

    Amongst the passes, identified in the Department of Transportation listings was the Eisenhower/Johnson tunnel complex. In those days, (four years ago) there was no prohibition on getting a special permit to ride through the tunnel. In 2018, after many of us had been out riding and capturing mountain passes (a number of us in the high 30s and one sitting on 40), CDOT changed the rules with the stroke of a keyboard, and published a new policy on its website. No bicycle events on the Interstate or in the tunnel according to this new policy, with a possible exception for film. [The policy was never put out in draft form for public comment. It was not made into law. It became a policy…which could be changed from Administration to Administration. In this case, as we learned during the court hearing, the “policy” was written by the Bicycle Liaison for CDOT who does not regularly ride bicycles and who does not participate in or attend bicycle events in the State].

    THE SPECIAL EVENT PERMIT: An expensive package

    The Form: The Government has forms. A new concept, eh? The form that needs to be filed out to conduct a Bicycle Event starts with submission to the Colorado State Patrol. There are some guidelines on what should be included. But, no standards on what will or will not work. There are expensive requirements like Traffic Engineering studies, $$$$, and providing Insurance to the State of Colorado for all participants and employees of the State. $$$$. It is suggested a permit applicant show diagrams of the proposed route. [Check}. Suggestion that provision be made for clean-up and environmental issues (read more clearly: Porta Potty]. [Check]. Suggestions for additional Emergency Medical Support, etc. [Check]. An applicant must also be prepared to pay for all of the CDOT and CSP workers & officers involved, who come with a minimum 3 hour overtime rate, and payment for expenses of equipment involved, etc. [Check/$$$$]. Dependent upon route approval, the Applicant must pay for all signage and road/traffic management devices, barricades, cones, lights, etc. [$$$$].

    The Process: Before the permit is submitted, encouragement is made that the Applicant meet with all of the constituent agencies, beginning with CDOT & CSP, followed by all cities, counties, Forrest Service (if you want to use a bike path that goes through the Forrest), land-holders, etc. The idea is to trouble-shoot the concept before the permit is submitted. The effort in our case was to understand all stake-holders along the route and to anticipate any objections. We started this process in May 2018, and took another six months of multiple meetings with presentations and discussions, along with travel to meet with various people and groups. It should suffice to observe that we learned many things, but amongst them in primary order: (a) Nobody wants to work on a project or spend much time with it until CDOT says it is a “go”, and CDOT is not generally held in high esteem by the cities, counties, and police or fire agencies along the route we were proposing; and (b) Most of the people considering our overtures are not bicyclists, and many have an ugly view of bicycle events and the troubles it causes for them — not the least of which is bicyclists only want “water” as they pass through any town.

    In stark contrast to some of the unhelpful/uninterested folks we met, the people at Loveland Basin Ski Area, and the Town Manager and staff at Silverthorne were excited about the Eisenhower event and fully supportive. Silverthorne was excited about a Festival in the Park on a Sunday in late September where the riders would finish and the restaurants and shops in Summit County could be represented, along with some national brands. We thought a legitimate music event with the Summit County business folks from Breck, Frisco, Dillon, & Silverthorne sponsoring lunch and selling their store items could be great fun. It would be larger than just the bike ride participants.

    The website for CDOT & CSP encourages you start this process early and submit the Permit Application no later than 90 days before the Event. We started a year and a half before the intended day of September 22 (Sunday), 2019. We had out Permit Application of file in early December 2018. TEN (10) MONTHS before the proposed Event.

    Film: If we may simply observe—filming the Quest has been part of our DNA from the start. We are overwhelmingly fortunate to have Cultivator Labs, http://www.cultivatorlabs.com, as a member providing cinematic photos and film to our Quest. Cultivator’s CEO is an avid bicyclist, and is committed to the message we bring of improving health, and seeking adventure with your friends on a bicycle. Therefore, we have been dreaming and scripting the parameters of a documentary on our pursuit of the Quest from the very beginning on our first ride. If you want to see some first rate film clips loaded with inspiration, visit our website or go to YouTube and search out Bicycle Passport. Conceptually, we cannot know exactly where the documentary takes us. Thematically, we know it will reflect some of the values inherent in a Quest: Teamwork, Fear, Joy, Strength, Commitment, Achievement, Celebration. When we began, we had no idea the trauma and havoc that would descend on us from government oversight of the only pass in the 41 that requires a permit for a ride. In truth, it has now become a legitimate allegory for the ascent and conquest — perseverance against exhaustion—that appears on some of our rides. If we are ultimately granted a Permit, the entry into and exit from the tunnel into the bright sunlight for a descent into Silverthorne will be THE BEST. We hope you will visit and watch our Documentary one day … coming to a film festival near you.

    The Special Event Permit Consideration [Blockades and Pretext]: We did not know it when we submitted out application, but the person to whom it would go for consideration was the Bicycle Liaison at CDOT who had authored the policy in August 2018 (three years after our Quest had begun), that newly introduced the blockade of cycling events from the Eisenhower Tunnel. As crazy as it might seem, it was this very person and others at CDOT and CSP who encouraged us to follow the form and submit our Permit Application. But, when we walked it through the door and turned it over for consideration, we handed it to the Guard who had already decided in her unilateral policy that we couldn’t do it. Worse yet, we were the first application since the new policy was adopted. [There has actually never been a formal permit application submitted for a Bicycle Ride through the tunnel from its opening in 1973 until the present].

    What we didn’t know, and didn’t appreciate was that the “Bicycle Liaison” was no advocate for bicycles. Rather, the entire Colorado Department of Transportation was anti-bicycles, except on bike paths. {A nice idea except there are darn few bike paths in the Colorado Rocky Mountains}. The former Governors of Colorado, Ritter & Hickenlooper, are committed to bicycling — but the Agency was not. The employees at CDOT said many times that they “owned the tunnel”. They seemed to forget they were the Trustees — not the Owners.

    The long stall and delay commenced. We heard nothing. We then went to meetings at the new and shining CDOT HQ where we were asked compelling questions like “what makes you so special?” that a Permit should be granted. We didn’t know it, but derogatory e-mails were exchanged amongst the staff behind our backs. Our Film effort was derided. Our statement that Governor Hickenlooper was in support of the ride was called a misrepresentation. The staff at CDOT complained approval of our permit would let the “spandex genie out of the bottle”.

    Six months after the submission of our Permit, it was denied in June 2019. In doing so, there was no impeachment of our expensive traffic engineering studies showing it could be done safely, or complaint about our EMS or Environmental efforts. Nothing about our Insurance. The denial said that CDOT did not believe the event would bring enough Economic benefits to the State (a note here that no one at CDOT has expertise in the Economics of the State economy and they reached this conclusion without any report, and in clear contravention of the State’s Recreation Report issued in January 2019, and the Town of Silverthorne’s support for the event and concluding Festival).

    THE AFTERMATH

    Appeal or No Appeal? Our application for a permit was more than a hundred pages long. Our Traffic Engineering Studies alone with overlays and descriptions with scientific evaluations of traffic counts, signage to use, placement of officers, barricades, etc., were many pages. The denial letter was a brief couple of paragraphs.

    Then we tried to appeal. We were crestfallen that no one seemed to have given our permit serious consideration. It had taken hundreds of hours to prepare it. To our surprise we were told we had no right to appeal. No right to appeal and Administrative Decision of the State? We were told the Right to Appeal had been eliminated by the same Bicycle Liaison for CDOT when she rewrote the existing policy. This could not be right. We turned to lawyers. $$$$.

    Four months later, in October, the District Court Judge in Denver agreed with us (after full briefing and argument). Bicycle Passport was entitled to an appeal. We were sent to the Administrative Courts for an Evidentiary Hearing and decision. $$$$.

    Unfortunately, while the statute requires an appeal be heard within 90 days, the Administrative Courts of the State do not abide that statutory requirement as they are “overrun” with cases. Our case was, therefore, set for hearing in February 2020. It was to be a four (4) day hearing with witnesses. $$$$.

    And so it went. We had four days of testimony in front of the Honorable Judge Norwood. With our earlier “BLAST” reports, you have a good sense of our FRUSTRATION. The Agency and the State Patrol were not content to rest upon their action in reviewing the permit application — no doubt because it was sloppy. New reasons for refusing the permit were offered (literally— mountain goats and elk on the highway). “Secondary crashes” — a vehicle runs into another one who is stopped or moving slowly [typically from distracted driving and failure to observe posted limits or signage during a bicycle event]. They finally came forth with some traffic engineering memos (never shown to us before — no discussion in the past). The problem, as demonstrated by our Expert was the numbers were mistaken. Traffic volume estimates were inconsistent with published volume estimates for each road. PTF (Percentage of Time Following) calculations were wrong by the State because it failed to take into account diversions [Steamboat travelers would likely take Berthoud Pass if the tunnel was impacted by a Bicycle Event], and passing lanes on Loveland Pass would reduce delay — along with the four-lane highway starting at Keystone when traveling westbound. CDOT also claimed that the Eisenhower Tunnel was not a “mountain pass”. That got dropped once it was pointed out CDOT’s website lists it as one of the mountain passes maintained by the Agency.

    Some observed that CDOT spokespersons were arrogant. It became apparent that a lot of decision making is done by Oral History at both CDOT and CSP and that the people involved did not know the actual history. They did not read the Permit Application, they acted instead upon whatever was told to them by others. They did not investigate the ability to do the ride during regularly scheduled maintenance because they didn’t want to do it. Essentially, the ranks closed and Damage Control was engaged to stand by each other and try to prove both the Right and the Might of CDOT and CSP. They finally admitted in Closing Argument they might do some things differently. Of course, it is not their money and they don’t pay for the State’s lawyers, and they don’t reimburse Bicycle Passport for all of its expense. A lovely mea culpa after more than a year of delays, stalling, and misdirection.

    PROGNOSIS: We should have decision in 45 days. Hopefully. If we win, will it stick? Or, will the State gear up its lawyers for an appeal? We should win, but “should” is not winning. If we win, timing is everything…putting on a major event and coordinating it all through two agencies that don’t want to do it will be hard. Starting down that path as late as March or April for a September Event will be mind-blowing exercise. Particularly so for an Inaugural Event. Stay tuned.

    PLEASE TAKE THE TIME TO FORWARD THIS MESSAGE AND ASK YOUR FRIENDS TO SIGN THE PETITION. A SHORT E-MAIL TO THE EXECUTIVE DIRECTOR OF CDOT, THE CHIEF OF THE COLORADO STATE PATROL, AND THE GOVERNOR OF COLORADO COULD MAKE A DIFFERENCE.

    IF YOU AND YOUR FRIENDS AND EVERYONE WHO GETS THIS MESSAGE WERE TO DO IT — IMAGINE.

    Governorpolis@state.co.us Shoshana.Lew@state.co.us

    Governor of Colorado Jared Polis Executive Director CDOT

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