In a special meeting of the Berthoud Board of Trustees on Tuesday night, the board heard a pair of presentations on two hot-button topics in town.

The trustees received the report from the Edwards and Amato law firm regarding the actions of the Berthoud squad of the Larimer County Sheriffs Office (LCSO) during the Back the Blue and Black Lives Matter rallies held in town in the summer of 2020 and were presented with some options for continued regulation of new oil and gas developments within town limits.

Bill Amato, partner of the Arizona-based Edwards & Amato law firm that was contracted by the town to conduct an outside review of the LCSO’s actions at the two rallies held in and adjacent to Fickel Park in late July and early August 2020.

For background, while there were no reports of property damage or violence at either rally, both events had counter-protesters in attendance. Some trustees who attended the Black Lives Matter rally felt the LCSO deputies and volunteer posse contingent that were patrolling the events failed to adequately control the crowd and prevent coarse and hostile language used by some counter-protesters.

Larimer County Sheriff Justin Smith and Berthoud Patrol Sergeant Jim Anderson both stated in the report the LCSO put together at the behest of the board that they believed the language used was “below the community standard” and was inappropriate, however, they stated foul language is not cause for criminal action to be taken as speech is protected right under the First Amendment. The LCSO stated with confidence the deputies and posse handled themselves in a thoroughly professional manner.

Unsatisfied with the report from the LCSO, the trustees, despite facing harsh backlash from many in town, some of whom claimed the trustees in question were operating in the interests of the “defund the police” movement that has resulted in massive spikes in violent crime across the country. Citizens initiated efforts to recall the two trustees, but those efforts were abandoned. Ultimately, the board voted to contract with Amato for $25,000 to conduct a review of the issues at hand and report back to the town with suggestions for potential ordinances that could be enacted by the town for future free speech events.

The firm reviewed relative statutes in Colorado and federal law, examined prior legal precedent related to free speech events, reviewed current Berthoud town code and the town’s Intergovernmental Agreement (IGA) with the LCSO. The Amato firm’s report to the board was commended by several of the trustees and offered a handful of suggestions based around the primary goal to, “assure that town does not incur any liability.” The firm requested both from the LCSO and from the town some additional information regarding LCSO policies but those were not provided a public records request had to be undertaken by the firm.

“Focus on how we move forward and make sure that future events like those can be conducted in such a way that all participants can be safe, have an opportunity to express their First Amendment rights and try to avoid conflict as much as possible.” Town Administrator Chris Kirk said in presenting the information. “We will continue to work with Bill Amato to prepare ordinance that outlines our permitting process and strengthens our ability to control and regulate these events … and to enact some new language that we can work with the Sheriff’s department on with our IGA.”

In his comments to the board, Amato stated that it, “Appeared you had ordinances sufficient to resolve what we think are the important issues, those ordinances that specifically identify conduct, rather than content of what someone is saying, as the enforcement mechanism for the Sheriff’s office.” Amato cited statutes already in place regarding disorderly conduct, trespassing, assault, and the like, none of which were reported at either rally.

The biggest takeaway from the Amato report centered around creating a more robust permitting process for future free speech events. The suggestion was to permit for a free speech event in a specific area, e.g., Fickel Park, that allows only those supporting the permit recipients from entering the park while counter-protesters if also wishing to exercise their rights, remain further away with police presence and/or physical barriers separating the two groups. The board directed Kirk and town staff to develop some ideas and report back at a meeting in the future.

As the second order of business, Kirk presented the board with an overview of oil and gas regulations in town. Currently, the town has in place a moratorium on permitting any new energy operations within town limits but has recently begun to receive inquiries from developers.

“We have been in a wait and see mode, to see what other communities around us are doing, to see what kind of other rulemaking and or policy-making processes resulted in. There are a handful of those available to us now,” Kirk stated.

While there was some debate, the trustees by and large agreed that if operations were to be authorized, a number of stipulations above and beyond the regulations already in place from both the state and county levels would be required.

Kirk stated the town is not equipped to handle some types of potential regulatory actions, such as monitoring air and water quality in areas near an extraction operations site and as such would need to hire an outside firm to handle such matters.

Trustee May Soricelli expressed support for oil and gas operations within town limits, stating support for a case-by-case evaluation and saying, “I don’t want a blanket statement that says we’re not allowing oil and gas in Berthoud, I would like to see us deal with it in a way where we’re being mindful that it’s being handled safely and appropriately and it’s not completely pushed out as well.”  Soricelli cited already in place regulations from the state and county level and outlining the revenue generated by oil and gas operations which help fund essential services.

Kirk said the town staff would develop some suggestions for regulations that could be put in place and report back to the board.