Saved in Time: The Fight to Establish Florissant Fossil Beds National Monument, Colorado

4. Fossils Go to Court

55 Chapter Four Fossils Go to Court  Estella B. 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: Chapter four 56 (a)  The proposed Florissant monument is a national natural resource treasure, (b)  The sovereign people of the United States have the right to enjoy the unique values of the Florissant fossil beds without diminution and degradation, (c)  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.1 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.”2 Yannacone’s motion demanded that the court issue such orders as would protect the unique paleontological, paleobotanical , geologic, 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. Dick Lamm and Yannacone also submitted minutes from the Teller County commissioners’ meeting Figure 4.1. Dick Lamm was originally a member of the Colorado legislature and later became the governor of Colorado for three terms. (Reproduced with permission from Richard Lamm.) Fossils Go to Court 57 of June 9 and their resolution stating that the Gregg property area should not be subject to subdivisions. Making the Case 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.”3 In addition, Yannacone asserted that “the Florissant fossil beds were subject to protection under the [Public] Trust Doctrine.” He was referring to a principle of law with a very long tradition whereby the State, even the British Crown, had an obligation to protect certain resources for public benefit . As Yannacone put it, “[W]hile 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 referenced the Fifth, Ninth, and Fourteenth Amendments to the Constitution, particularly the Ninth, which...