Little Fishes Wildlife Habitat on La Posta Road in Durango is missing one essential component – fish – and owners of the 34-acre property are blaming nearby oil and gas operations for a 2014 kill-off.
In December, Lonnie and Dena Malouff, represented by Durango attorney John C. Seibert, filed a complaint in La Plata County District Court that contaminated runoff from adjacent well pads seeped into ponds at the privately-owned habitat, killing the rainbow trout.
The complaint names four oil and gas companies: Catamount Energy Partners, ConocoPhillips Co., Williams Four Corners and SG Interests. All parties involved in the lawsuit declined comment.
Five years ago, the Malouffs obtained a permit from La Plata County to extract soil and gravel from the banks of the Animas River to create a wildlife habitat with ponds, wetlands, shelters and nesting areas for aquatic life and waterfowl. The family purchased the property on La Posta Road (County Road 213) about a mile south of the Weaselkin Bridge in 2007. It includes the site of the well pads.
The Malouffs were allowed to haul 200,000 cubic yards of soil from their property over four years, creating seven ponds. The complaint claims the habitat was intended to “provide an environment where (the Malouffs), their children, grandchildren could gather, recreate and enjoy the outdoors.” Fees for access for hunting, fishing and other recreation was expected to provide retirement income.
Little Fishes Wildlife Habitat was ready to open in late June 2014, and the Malouffs planned a fishing tournament to benefit the Liberty School, an independent institution in Durango serving dyslexic and “twice-exceptional” students.
However, those plans were “quashed” by a fish kill that the plaintiffs say was a result of pollutants from upslope oil and gas operations.
Well history
County records show leasing for oil and gas exploration and development began in the mid-1950s in the area.
The first producing well, owned by SG Interest, began operations in 1989 on a well pad across the street from the Malouffs, at a higher elevation than the habitat.
The Texas-based company stored wastewater from drilling operations in an earthen pit adjacent to the pad, which also contained contaminated fluids, excess oil and other noxious substances. In their Dec. 2, 2015, lawsuit, the Malouffs claim the habitat is in the pathway of natural draining from the well pad, and because SG failed to properly contain materials, production waste seeped into their ponds.
In 2009, SG Interest replaced the pit lining, which did little to prevent seepage, the Malouffs said. Five years later, SG Interest sold the well to Catamount.
A second well at the location was completed by SG Interest in 2001, and subsequently sold to Conoco two years later. The Malouffs said they’ve “witnessed substances leaking from the pumping unit” as recently as 2015.
Williams Four Corners, an Oklahoma-based energy infrastructure company, operates a processing facility near the well pad to gather and transport Catamount-produced gas. The Malouffs assert Williams Four Corners is violating its land-use lease, which says the company can transfer, not produce, gas on site. The plaintiffs also say they’ve witnessed leakage, overflows and polluted water encroach on their property from storm runoff.
July rains
In early July 2014, heavy rains hit Durango.
The lawsuit argues that storm runoff swept up waste and contaminates from the well pads and traveled into Little Fishes Wildlife Habitat, where it killed all the fish in three of the four stocked ponds. The fourth pond, the plaintiffs say, was not in the drainage path.
“When we were watching them, they were all at the surface of the water, gulping for air, trying to get the fresh water coming into the pond,” said Patrick Goddard, a veterinarian and owner of Rainbow Springs Trout Farm. “It was like they were asphyxiating.”
Goddard owns the fish farm that stocked Malouff’s ponds with rainbow trout, and told The Durango Herald on Thursday that adverse conditions in the fish’s environment made their immune system vulnerable to parasite infestations and “strange lesions” on the gills and mouth.
The fish were sent to a lab, but because it’s unknown what chemicals the oil and gas companies use, it was hard to pin down a single cause for the downturn in water quality.
“If we don’t know what we’re looking for, we can’t find it,” Goddard said.
The Malouffs constructed berms and a drainage system in January and February 2015, but volatile and semi-volatile organic chemicals were found in tested water and soil, the complaint said.
The Malouffs seek reimbursement for all losses and damages, and demand the companies remediate the area to a point where no further contamination occurs.
Federico Cheever, a professor at Strum College of Law in Denver, said it’s imperative to prove the energy companies either did something wrong and were careless, and that’s what caused the damage. And that can be tricky.
“It’s like putting a puzzle together,” Cheever said. “Can you prove the damage was caused by contaminates on the plaintiffs’ land?”
Randall Weiner, an environmental lawyer in Boulder, said another challenge is convincing a jury to award monies for natural values.
“Aesthetics is sometimes more difficult to get compensation for than monetary values,” Weiner said. “Winning a case like this will require as much artwork as it does evidence.”
No court date has been set, Malouff’s attorney Seibert said, but the family wants a jury to hear the case.
