The Eisenhower Tunnel Traverse/ Court Hearing Report


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    Mark Nadeau


    As many of you know, the Colorado Department of Transportation (Trucks) (“CDOT”) turned down our Special Event Permit Application to conduct a special event ride through the Eisenhower Tunnel, finishing at an all day festival on a light traffic Sunday morning in September. We appealed that denial. Then CDOT decided we had no right to an appeal. ??? We went to the District Court. The Judge ruled in favor of Bicycle Passport, to the effect that any permit decision by an Administrative arm of the State can be reviewed by an appeal. Duh….but, we had to pay for that fight at the courthouse.

    WE are now in a trial before Administrative Law Judge, Matt Norwood, in the Administrative Courts on Sherman Street in Denver. It is scheduled as a 4 day trial. Today is an off day after two days of hearings. Thus, this condensed status report:

    Amongst the witnesses for Bicycle Passport and in support of the Ride: (1) Former Governor Bill Ritter! Great testimony about how bicycles are a billion dollar part of the Colorado economy, provide a healthy outlet for a State that is ranked #1, and induces all sorts of good behavior and financial impacts. He thought such a ride could be orchestrated safely, with little adverse impact to traffic, and could be a marquee event for the State. HE is on the Board of BICYCLE COLORADO; (2) Six time Leadville 100 MTB Race Champion David Wiens. He was a complement to the Bicycle Passport filming of the event that had been requested (see our 4 videos on the website or on YouTube). Dave explained the benefits to a community of such a ride, and the impact GLOBALLY of the film Race Across the Sky (watch it from 2009)!!!!. The Judge was very interested and all of us were honored to have both Governor Ritter and Champion David Wiens engaged and testifying in support of the Eisenhower Traverse in pursuit of the 41.

    We also had a great time showing the Judge the Top Gear History Channel video of Super Cars racing through the tunnel for six hours in 2013 at speeds approaching 170 mph. Imagine– CDOT approved that event with the prospects of a crash in the tunnel and damage to infrastructure but won’t approve a bike ride. The Judge asked if he could watch it again at home on the web. Do it yourself and then realize that CDOT will not allow a bicycle event to use the tunnel. Absurd. We talked about Filming the Bicycle Passport journey around the State and the Quest. We had the CEO of Cultivator Labs, an award winning film company talk about our pursuit of a Documentary, including film at the tunnel and all of the other rides around the state. Think about how cool that could be!

    Then we heard from CDOT’s “Bicycle Liaison”. This person does not regularly ride bicycles. (Can you imagine hiring someone in Colorado for this position who does not ride bicycles?). She also admitted she had never participated in a Bicycle Ride Special Event in Colorado. But, she writes the Policy on Bicycle Special Events in the State. “Flabbergasted” would be a key word. “Lunacy” might be another. She wrote the Policy that prohibits bicycle special events on any major roadway or interstate, and that includes the tunnel. She had no idea the Triple Bypass went along the Interstate before the Bakerville bike path was put in place. During six years of her tenure, the ride was out on the Interstate and she had no idea about it. Essentially, she does not ride bicycles, she does not participate in Special Event Rides, she does not observe or participate in Special Events Rides, but your Transportation Department has given her the job of writing the Policies. WOW. She was in charge when our Application was turned down. The “Liaison” fought against us. She did admit — on cross-examination that CDOT traffic engineers and she agree the Event could be conducted SAFELY. They just didn’t want to do it…even when Bicycle Passport agreed to pay for it all.

    The case goes on. Tomorrow the 7th and February 18th (court schedule and all). Send positive vibes. Send e-mails or text messages to anyone you know in State Government or at the State Legislature. Let them know that we are on a Quest. The State itself lists Eisenhower Tunnel as a Mountain Pass over 11,000 feet. We want two hours every other year to do an event on a Sunday morning in late September (no westbound traffic). YOUR “Multi-Modal” Transportation Department does not want to help the bicycling community.

    Altitudinous Days are ahead!

    Mark Nadeau

    Court Hearing Update: 3 days down, 1 to go
    Believe it – Because of the Pretext involved, the Damage Control underway, we have six lawyers (three against three), with an Administrative Law Judge and a court reporter all taking time to “consider” whether Bicycle Passport can conduct a Specially Permitted Ride through the Eisenhower tunnel and down to Silverthorne. The tunnel sits above 11,000 feet and is one of the passes listed by the Colorado Department of Transportation as one of the “passes” it maintains in the State —noting on the same page that some of our other favorites are much steeper. Can you believe it? They are trying to make a case that the descent on the 3 lane highway over a 6% grade is something bicycles can’t handle: “You just can’t handle it!”. If that sounds familiar…
    Last Friday had us presenting our Traffic Engineer who explained the State’s traffic numbers on an early Sunday morning in late September were inflated. Such a surprise really—imagine a government entity inflating numbers. Without the inflated numbers, the traffic flow is smooth and manageable.
    The State countered with more testimony for its non-bicyclist Bicycle Liaison. She admits on cross-examination that she wrote the Policy prohibiting bicycles from conducting a Special Permit at the tunnel. Not some anti-bicycle group, not some “cars are the future” spokesperson. It was the Bicycle Liaison that wrote it. And, then, in favor of her own new policy prepared in secret without comment from the public, she published it on their web-site. Just her little effort to change the law without need of the Legislature. Because she likes her new and unilateral policy, she decided (along with 4 people who work below her at CDOT) to reject the Bicycle Passport permit application. Nice, eh? Just exactly what you would think a Liaison might do to support bicycling in Colorado. NOT.
    Next, the State called its own traffic engineer. The problem was, of course, that this Guy had written a memo saying the proposal by Bicycle Passport was a safe method to conduct the event. Never mind, when did truth matter? The Judge precluded the Traffic Engineer from giving additional “Expert Testimony” because the State had not listed him as an expert. {Did we mention there are 3 senior Attorney General’s Office lawyers on the other side?}. Short story, he admitted knowing about the decision to reject the permit application and agreed with it. Anything to support the Bicycle Liaison for CDOT.
    The last day concluded with an Officer of the State Patrol. He tells the story of meeting with us the first time in August 2018. His version is that he told us the permit would never be approved. Why he spent another hour talking with us is as yet unexplained. He testified he thought it would be unsafe to do such an event at the tunnel. This is – just for the record— completely inconsistent with his statements to us. But, what the hey—how do you spell “Damage Control”?
    We are looking forward to Day 4, hopefully the last day, this coming Tuesday February 18th. More witnesses and Closing Arguments. Please – PLEASE—let this Judge see through the mud and allow our Special Event to occur. To keep us from capturing the 41st Pass…well, we are not thinking bad thoughts…only good thoughts here.
    Sign our Petition. Send an email to the Governor of Colorado. Send an email to the Executive Director of CDOT. Tell them this is nonsense, the law allow this Event and we are on a Quest!
    Shoshana M. Lew
    Jared Polis

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