As of March 13, Xcel Energy still hadn’t submitted a formal application to Elbert County for its proposed Power Pathway, which would run new transmission lines through the county — but that hasn’t stopped the utility from actively surveying land in eastern Elbert County.
Recently, surveyors subcontracted by Xcel have been visiting and surveying private property accompanied by Elbert County sheriff’s deputies. This was the first discussion item at the Elbert County commissioners’ meeting on March 13.
Commissioner Chris Richardson read a short letter to help frame the discussion from Elbert County resident Roger Schulz. The letter read: “Xcel has been sending survey crews out to properties along their preferred route accompanied by an off-duty, uniformed Elbert County sheriff’s deputy in a county patrol car. When questioned, the deputy admitted the sheriff’s department was being paid by Xcel to provide security and that if any property owners created a problem he would handcuff them and call for an on-duty officer to arrest them and yet Xcel has not submitted an application to the county. I’m opposed to this violation of our rights.”
Elbert County Attorney Bart Greer spoke about the relevant state statute for surveyors regarding boundary surveys on private property. Greer referenced Colorado statute 18-4-515, which he said “allows for a licensed land surveyor to do surveys on private land with regard to boundary evidence and figuring out where boundaries are for a particular property.”
To be compliant with the statute, Xcel must send out notices at least 14 days prior to the proposed boundary survey. Greer stated that surveys beyond boundary lines are not specifically provided for within the statute. After receiving notice, a landowner could contact the party conducting a survey and negotiate a time and date more convenient for them. Even without receipt acknowledgement, surveyors have the right to enter the land 14 days after a notice is sent.
Sheriff explains stance
Elbert County Sheriff Tim Norton was on hand to personally address community concerns and explain the presence of sheriff’s deputies. The Elbert County Sheriff’s Office provided security at an Xcel community meeting at the Elbert County Fairgrounds and has been asked by Xcel to provide security for surveyors on two different occasions. It isn’t uncommon for sheriff’s departments, at their discretion, to provide additional law enforcement services as requested by private businesses, public agencies and individuals for a set fee.
Norton clarified the process is the same for anyone seeking extra security, “whether it’s Xcel, the Stampede, any event in the county … they would like security, they contact me.” After Norton is contacted by an employer, they jointly discuss details — how many deputies, location, duration, etc. The job is a voluntary assignment deputies can sign up for.
Norton went on to say “I don’t think it is appropriate for the sheriff’s office to support or promote the private entity of Xcel. However, I can’t ignore the fact that somebody’s coming to me asking me for security for their protection and their safety. I think it’s my duty as sheriff to anybody who comes to me and asks for security or protection in a matter no matter what it is, I think it’s my duty to step up and make sure that legally that I can perform those duties to help that person or persons out.”
Norton told the surveyor, “We are there to keep the peace, peace only. We’re not there to agree with you or disagree with you. I live out east and I know the frustration that all these people have, I would too … but it’s my job to keep the peace, to make sure nobody gets hurt, and protect people’s rights.”
Many county residents stepped up to comment and seek clarification. Comment was controlled and concise, but it was clear many residents were frustrated.
Kiowa resident Don Gray spoke to an Elbert County sheriff’s deputy personally on one of these occasions. Gray said he understands that the sheriff’s office can provide protection but does not appreciate the impression that the sheriff’s department is supporting Xcel in any way whatsoever.
“He comes down the driveway and he’s transporting the surveyors,” Gray said. “That seems wrong to me. That seems like that the sheriff’s department is supporting Xcel in this endeavor. If he’s hired by them, that doesn’t mean he gives them transportation. My property personal, the surveyors, I made them walk everywhere, they weren’t even allowed to park in my driveway. I made them walk. They wanna play the game that they’re playing, using the statutory survey against us, then I’m gonna make it as difficult as I can for them to do that.”
Gray added that the sheriff’s deputy was “very cordial” and, when asked, the deputy told Gray “that if I overreacted that he would handcuff me and call for an on-duty officer to come take me. I was just asking him the question of what would happen because he was off-duty.”
‘Intimidation’ alleged
Elbert County resident Eric Jiblits said he’s a strong proponent of law enforcement but is against police state tactics. He feels “intimidation is being used by Xcel subcontractors to intimidate our citizens.” Jiblits believes the sheriff’s job is to “actually protect and keep peaceful for the citizens, not private contractors.”
Calhan-area resident Mark Kanipe says he still has not received notification from Xcel about surveyors on his property. And yet, on March 4, there were two vehicles at his front gate and a sheriff’s deputy. The deputy told Kanipe that Xcel employees had every right to be on his land. By that time, the surveyors were already three-quarters of the way down his fence line. Kanipe, ex-law enforcement himself, went to the Elbert County Sheriff’s Office in an attempt to file trespassing charges but felt his concerns weren’t taken seriously.
Brad Ray, who lives near Kanipe, said he was also one of the people contacted by the sheriff’s deputy on the day of the survey. “If that person is going to serve as an escort to these people,” he said, “I should have been notified before those people were ever on my property, wandering around. Because if he’s there to enforce, basically provide muscle for Xcel Energy, I dang well should have been notified. Because somebody could have very easily been hurt in that situation …”
Ray was also frustrated that it wasn’t immediately clear the deputy was off-duty. “The fact that he presented himself without notifying to me that he was off-duty is a form of intimidation because I am assuming I am dealing with a county entity and actual law enforcement. And that this is a sanctioned, going-to-happen event.”
Sheriff offers to talk more
At the close of discussion, Norton responded to citizens and offered to answer questions or engage in further discussion as needed. He reiterated that the deputy’s duty from him was to keep the peace and said the deputy “took it upon himself” to try to make contact with the homeowners involved and make sure they were aware so there were no surprises.
“The sheriff’s office is not supporting Xcel, I can promise you that, I’m not supporting it, my people aren’t supporting it, I’m there just to keep the peace. I don’t want anybody to get hurt, I don’t want any issues that could come down in litigation at a later time.”
Commissioner Richardson clarified that even though the statute doesn’t require proof of receipt, perhaps Elbert County could create policy ensuring proof of receipt is made before the county sends anyone out. “I’m a little concerned that we did, because of the way this was done, and I think it was being done with all the best intention, that we potentially stripped citizens of an opportunity for a day in court and perhaps clarification of the statute through the courts,” he said.
At the meeting, Richardson reiterated that Xcel had not yet submitted a formal application to the county and added that a proposed bill that would take siting for transmission and green energy production out of the hands of local governments has not been introduced yet.
Richardson was referring to proposed state legislation that would “ensure local governments can’t derail the state’s ambitious plans to transition to carbon-free energy sources like wind and solar.” An early version of the bill describes setting up a standardized process for local governments considering renewable energy projects and would limit potential rules to restrict the development of wind and solar farms. For example, the bill would ban cities or counties from requiring more than 150 feet of space between occupied buildings and solar energy facilities.
The Elbert County Environmental Alliance, a local organization opposed to the Xcel Power Pathway, is sponsoring a petition against the proposed legislation. For more information, visit www.ecealliance.org.
To listen or watch the County Commissioners meeting from Mar. 13 in its entirety, as well as other archived meetings visit elbertcounty.granicus.com/viewpublisher.php?view_id=1.
To speak with the Elbert County Sheriff’s Department, contact 303-621-2027 or visit elbertcounty-co.gov/181/Sheriffs-Office.