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November 20, 2013 03:19 PM UTC

The Cost of Free Speech? Five Grand if Lamborn Has His Way

  • by: MichaelBowman

(Promoted by Colorado Pols)

Talk's not cheap. Not if House Republicans led by Congressman Doug Lamborn get their wish.

Make no mistake, the sole purpose of the Federal Lands Jobs and Energy Security Act, introduced by Congressman Lamborn, is to make it easier for oil and gas companies to drill on public land. In fact, so easy that a permit would be automatically approved if the Department of Interior failed to act in 60 days.  All this while recent polling reflects a much different mood in the West:  only 35 percent said that more public lands should be opened to “responsible energy development.”

It's what money buys today on Capitol Hill. 

The kicker?  If you want to file a protest, you'll have to pony up $5,000.00

But the Congressman didn't stop there: his bill also directs the Department of Interior to commence commercial leasing of oil shale – a practice banned since the days of Herbert Hoover – and not to be confused with the more common shale oil. 

Oh, how the Congressman longs for the days of Hoover.  It was just so much easier then for white men, hell-bent on burning that black gold formed millions of years ago to exert their dominion over the Earth. They poisoned an unsuspecting public the old-fashioned way then: with lead paint, PBB, PCB and dioxins, unencumbered by a skeptical and informed public or concerns over rapidly-depleting natural resources – or a collapsing climate. 

As our departed friend Randy Udall often said about the resource:

“there is three times more energy in a ton of Captain Crunch than there is in a ton of oil shale."

Political fortunes built on the back of oil titans and snake-oil schemes. Have we learned nothing in the last 30 years?

On second thought, things really haven't changed all that much at all.  While those like the Congressman yearn for how things used to be – the rest of us are dreaming of the new exit on the Ronald Reagan Highway – one named "The Future"

Under your proposed legislation the government would be mandated to offer 10 leases on federal land in 2014.  Before 2016, they would be required to hold 5 commercial lease sales of federal lands for oil shale development, each, no less than 25,000 acres. 125,000 acres of federal land in total.

Interestingly enough, Colorado Springs encompasses 194.7 square miles, which equates to 124, 608 acres. 

Here's an idea Congressman: let's propose we turn your own city in to this national sacrifice zone.  We'll find someone to donate the 382 acres so that you're compliant with your 125,000 acre federal mandate. It only takes 3-5 barrels of fresh water to produce one barrel of oil shale.  You shouldn't have any problem pulling that off in your own back yard.

Oh, wait – Colorado Springs is in a Stage II water shortage, described by its City Council as a crisis.

It's hard to miss the irony that the epicenter of your Congressional District is a microcosm for the same water challenges that would befall the industry you're trying to revive.

I have a suggestion for you when you're home next week giving thanks: head up the hill to Woodland Park and spend 30 minutes over coffee with Eddie Sturman, one of your constituents that Amory Lovins calls one of the smartest men on the planet on energy issues, engine technology and fuel diversity. Complete with a technology facility that is like none-other on the planet.  It's right under your nose.

Stop wasting your district's precious human resources – and start acting like a man who represents one of the most beautiful cities in the Rocky Mountain West – a city worthy of a 21st-century energy vision. A city with the potential to be so much more. A military complex committed to a very different future -one that doesn't involve melting rocks.


Your region lacks nothing but a visionary leader – and a $5,000.00 check.  Stop looking back – we're not going that way.


33 thoughts on “The Cost of Free Speech? Five Grand if Lamborn Has His Way

  1. Michael, 

    Let's be clear – this isn't a free speech restriction, it is a restriction on filing a complaint.  Now you may think that  $5,000.00 is too much to place as payment (or is it a bond?) to file a complaint, but you haven't provided any authority showing that is a first amendment issue. People remain free to protest oil drilling all they want (and to shill for wasteful ethanol, as some on this page do 😉 )

    1. (I will also throw in that sometimes you have to place a bond in other court proceedings.  And if you file a frivolous, groundless, or a vexatious lawsuit, you can also be ordered to pay the other sides' attorney fees.  Yet I don't see Michael claiming that restricts "free speech" 😉 )

      1. Thanks for the legal briefing ..and your indefensible arguments on biofuels wink Because, you know, we really should be melting rocks in the Rocky Mountain West and boiling tar sands in the Boreal Forests to supply our transporation needs. 

        If you're not careful I'm going to have to ask Alva to assess my costs to your Pols account for my constant need to respond to your weak arguments on liquid fuels  [I won't be offended if you simply take that as a bad stab at humor!] 

        Post a bond, counselor!


        1. Why are you asking me? You're the one defending in on hypoteticals – YOU explain the process, especially the part that's so expensive that it's only fair to ask the complaintant to pay $5k for it. Why would that cost so much?

        2. The headline achieved its intended goal: to get the counselors attention. [I figured he'd be too busy carrying the anti-Hudak water today to pay attention].  What it didn't achieve was the counselor grasping the absurdity of the Congressman's proposal.  [sigh]

    2. First of all, Michael did not say the $5,000 fee violated the First Amendment. What he is pointing out is the fact that requiring a $5,000 filing fee certainly means the average citizen won't be able to file a protest because they simply don't have the money and thereby their voices won't be heard before a body that could do somethign about one of these leases. This is especially true in light of the fact it only costs $400 to file a complaint in U.S. District Court and $455 to file an appeal in a U.S. Circuit Court of Appeals.

      Now, on to the legal arguments.Citizens have the right to access to the courts. After all the judicial branch of government was established to resolve disputes between individuals and other entities in our country. As you are aware, when a government agency decision is involved, before a party can file an action in court, they are required to exhaust their administrative remedies before an executive branch agency. Undoubtedly,a $5,000 filing fee would severely restrict a citizen's access to the courts by cutting off his/her ability to proceed with an adminsitrative action before the Interior Department because of the cost of the filing fee alone. Without the ability to afford an administrative action, a person would be unable to file a court case even in instances where their case is valid because they did not exhaust their administrative remedies.

      The United States Supreme Court, in applying the terms of due process under the 14th Amendment, held that where an individual is unable to pay a fee for divorce proceedings, the fee is unconsititutional because citizens have the right to access to the courts. Boddie v. Connecticut, 401 U.S. 371 (1970). It isn't hard to extrapolate from that decision that excessive fees that prevent citizens from asserting their rights in an administrative action which thereby cuts off their ability to proceed eventually to U.S. District Court will be held unconstitutional.

      From the policy perspective, Congressman Lamborn's legislation inherently assumes that administrative actions brought against oil shale leases are groundless. By making that assumption, he wants to take away a citizens right to be heard by an administrative law judge or a federal court judge. The decision whether a claim is frivilous should be made by a judge once the evidence has been presented. The Congressman's assumption that all such cases are frivilous undermines the heart of our judicial system. As the United States Supreme Court said in 1907:

      The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens.

      Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 148 (1907), Justice Oliver Wendell Holmes concurring. It is just as likely the Supreme Court will strike down a federal statute that denies ordinary citizens their right to redress before the courts.


      1. Boddie is a DIVORCE case.  Not even close to being on point here where it is questionable whether the complainants even might have standing. 

        As for your notion that Michael did not bring up the First Amendment, I will refer you to the post's title: "The Cost of Free Speech? Five Grand if Lamborn Has His Way"

        1. (for finding a case on point, can you find a case that a person without a direct injury has a due process right to bring a case without paying a court fee? maybe one exists, but your case above doesn't appear to be it)

        2. Of course Boddie is a divorce case, but that's not the point. It stands for the principle that filing fees can't be used as a reason to bar people from access to the courts.

          As for standing, that is a separate issue from the right to access to the courts. At the moment, neither one of us knows who may or may not have standing to bring a case involving oil shale leases. The specific facts of each case determines whether or not someone has suffered an injury in fact that can be brought before a court. However, if the filing fees are set so high the average citizen can't file a claim, then a court can't determine whether a citizen has standing or not, because no one can afford to bring the issue before the court. Standing is decided after a case is filed. If the fees are so high as to preclude filing a case, standing can't be determined. 

          1. Republican 36 – can you point to a single case that is remotely on point?  We aren't talking about filing fees barring people from cases that concern them.  We are talking about filing fees that MAY dissaude people from bringing an action where there is no direct injury.  If you have no direct injury, or even any interest in the issue of the litigation, it seems difficult to see any implication on due process. 

            1. You're putting the cart before the horse. What if a citizen can show an injury but their an annual income is $35,000 (gross). In that example, a $5,000 filing fee will stop a legitimate case from going forward even where they can show direct injury. Congressman Lamborn's bill doesn't discriminate between legitimate and illegitimate cases. If it did, it would contain a provision that waived the fee or substantially reduced it for those who can show injury in fact, but the proposed legislation doesn't, does it?

              Legislating fees that prevent citizens who can demonstrate they've an injury certainly implicates due process.

              Your position is the fee itself should determine who can demonstrate they've been injured by one of the leases. In all the cases I've ever litigated or read who determines whether someone has in fact suffered an injury and therefore has the right to bring his/her case to court. A judge of course. How can an arbitrary amount of money (in this case $5,000) make that determination. Taking your concept to its logical conclusion, if someone can pay the $5,000 then you agree they've been injured in fact by one of these leases and they therefore have the right to bring their case. In short, under your interpretation, standing to be in court (administrative or U.S. District Court) is determined by who can pay the fee and who can't.   


            2. One other point. Please provide a cite to a case where the right to bring a case (standing – injury in fact) is determined by the amount of the filing fee. Filing fees are charged to cover the cost a court may incur in administering the case. Filing fees have nothing to do with the merits of a case. The two are not connected. 

              1. My understanding is this applies to protests with administrative agencies.  If somebody has a cognizance injury then that should be a tort unaffected by this.  


                Now, do you have a case that shows birdie would apply when no standing? 😉

                1. It certainly does apply to administrative cases before agencies like Interior. The point is simply most people can't afford a $5,000 filing fee and therefore they won't be able tp present their case before the agency. In that situation a person is also precluded rom filing a lawsuit because they did not first pursue their claims before the agency.

                  Limiting your statement to torts is far too narrow. Challenging an oil shale lease is an administrative action where environmental and land use issues are litigated first before the agency and then in court. Whether a citizen can demonstrate standing (an injury to his/her interests which is not limited to tort, a physical injury) is determined by an administrative law judge and ultimately by the U.S. District Court. Standing is never determined by the amount of the filing fee. 

                    1. Your underlying assumption is false. From your perspective you assume if some one can't afford the $5,000 filing fee they can't show their legal rights have been violated.

                      As you well know, standing is determined after a case is filed, If the other side believes the party who filed the case doesn't have standing they file a motion to dismiss. Filing fees have nothing to do with whether someone has suffered a violation of their legal rights. Standing is determined by a judge, based on the facts presented, not by an inanimate filing fee.

                      When people file administrative acitons or lawsuits, their claims are based on acts that have already occurred. It is within the purview of a judge to determine whether the allegations constitute an injury to a person's legal interests.

                      Let's use the Congressman's legislation as an example. Let's say a landowner adjoining the land to be leased for oil shale believes the proposed lease will adversely impact air quality and water quality on his land. The first place he would go to have his conerns heard is the Interior Department through an administrative action for redress. The administrative law judge would determine whether or not the landowner stated sufficient facts to establish an injury to his legal interests.How in the world can you believe a filing fee can determine whether or not the landowner's interests in water quality and air quality are valid or invalid? Standing is always decided based on the specific facts of each case.You are trying to connect two items (filing fee and standing) that are completely disconnected. 

                    1. Michael…you are asking Elliot for a straight answer to a direct question..?..

                      This oughta be good. smiley

                    2. I recall that he supports the Hudak recall because he doesn't like her, even though she isn't his senator. So pseudo-elections by a tyranical minority seem to be fine with him in that case.

                      I'm wondering if he's applying the same principles to this scenario?  A Congressman that doesn't represent his district, proposing that we melt rocks that aren't in his back yard, with water that doesn't belong to him [if it exists at all].  Let there be no doubt, Lamborn, his coke-brother and his Koch Brothers loathe anyone who would challenge a "Drill Baby, Drill" world, and they will squash anyone with any means at their disposal to crush them. They consider any challenge to them as a 'tyrannical minority'.

                      In Lamborn's case, his assets are unlimited oceans of Koch money coupled with his Arrmageddon-state-of-mind; in our case we have to resort to that the actual "governing in the best interest of the majority" thing. 

                    3. Michael, you seem to think the economy and people's investments should be run under manoritian popularity.  On that we will strenuously disagree.

      2. It's clear to me that the intent of the Federal Lands Jobs and Security Act would be, as you say, to keep citizens from exercising a right to protest a drilling permit on public land. As such, it should be held unconstitutional, and likely would be, as you said, R36.

        It seems to me that Scott Tipton, in his Pueblo town hall Nov. 7, was also promoting this piece of legislation as a "jobs creator".  He was pretty proud of it, in fact. I'm glad to know the rest of the story now.

        1. Your point is the salient one, MJ:  the sole purpose of this bill is to make it impossible for people from exercising their right to protest.  Practically speaking, the Chair of the Congressional Oil and Armageddon Caucus Lamborn's bill is going nowhere.  It won't see the light of day on the Senate side – and would be a veto target if it got past the upper chamber.

          The energy, institutional, educational, foundation and civic assets in his district would be hard to replicate almost anywhere else in the United States.  San Antonio, TX may come close.  But instead of using his leadership to solve problems, creating jobs and building bridges with the military complex, this tool wastes his time on things like this piece of legislation.

          Over the past five years the bulk of my Colorado time has been spent in that region – so I didn't write the post and I'm not making these comments as a naive outsider.  CD-5 may be the most profound waste of regional assets anywhere in the Rocky Mountain West.

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