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Longmont voters instituted a ban on hydraulic fracturing in 2012, an industry group and a state agency sued the city. A district court found with against the city and Longmont is now appealing the decision.
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Colorado Court of Appeals
2 East 14th Avenue
Denver, CO 80203
District Court, Boulder County, Colorado
2013CV63
COLORADO OIL & GAS ASSOCIATION,
COLORADO OIL AND GAS
CONSERVATION COMMISSION, TOP
OPERATING COMPANY
Plaintiffs,
v.
CITY OF LONGMONT, COLORADO
Defendant
Defendants-Intervenors: OUR FUTURE,
OUR LONGMONT; SIERRA CLUB;
FOOD AND WATER WATCH;
EARTHWORKS
COURT USE ONLY
Plaintiff TOP Operating Attorney:
Thomas J. Kimmell, Reg. No. 9043
Zarlengo & Kimmell, PC
700 N. Colorado Blvd. #598
Denver CO. 80206
303-832-6204
Court of Appeals Case
Number: 2014CA1759
TOP OPERATING COMPANY’S AMENDED ANSWER BRIEF
Plaintiff-Appellee TOP Operating Company (“TOP”) hereby files its
Amended Answer Brief.
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CERTIFICATE OF COMPLIANCE
I hereby certify that this Brief complies with all requirements of
C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in
these rules. Specifically, the undersigned certifies that:
The Brief complies with C.A.R. 28(g). It contains 8775 words.
The Brief complies with C.A.R. 28(k)
For the party raising the issue:
It contains under a separate heading (1) a concise statement of the
applicable standard of appellate review with citation to authority; and (2) a
citation to the precise location of the record (R. _______, p. __________),
not to an entire document, where the issue was raised and ruled on.
For the party responding to the issue:
[x] It contains, under a separate heading, a statement of whether such
party agrees with the opponent’s statements concerning the standard of
review and preservation for appeal, and if not, why not.
I acknowledge that my brief may be stricken if it fails to comply
with any of the requirements of C.A.R. 28 and C.A.R. 32.
/s/ Thomas J. Kimmell
___________________________
Thomas J. Kimmell
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TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………………………....6
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW…….....8
STANDARD OF REVIEW AND PRESERVATION FOR APPEAL…..8
I. STATEMENT OF THE CASE …………………………...…………9
A. NATURE OF THE CASE………………………....…….…...9
B COURSE OF PROCEEDINGS….………………..….….....10
C. STATEMENT OF UNDISPUTED FACTS ………….......11
1. TOP Operating’s Interests in Longmont………………..11
2. 2012 Contracts between TOP and Longmont…………...12
3. Longmont expressly permits hydraulic fracturing in its
2012 Contracts with TOP………………………...……….....12
4. Inconsistent nature of Longmont claims………………...13
5. TOP’s practice and intent to hydraulically fracture all
TOP’s oil and gas wells in the Wattenberg Field…...……...14
4
6. Conflict between Longmont and State Rules as to
Hydraulic Fracturing…………………………….........……..15
II. ARGUMENT………………………………………………...………15
A. SUMMARY OF ARGUMENT……………………………..15
B. UNDER THE LAW OF IMPLIED PREEMPTION,
LONGMONT IS PREEMPTED FROM REGULATING A
TECHNICAL ASPECT OF OIL AND GAS OPERATIONS, SUCH AS
HYDRAULIC FRACTURING………………………………………..…17
C. LONGMONT’S FRACKING BAN IMPERMISSABLY
CONFLICTS WITH STATE RULES AND POLICIES AND IS
INVALID AND PREEMPTED AS A MATTER OF LAW……………23
1. Colorado has a substantial state interest in uniform
regulation of oil and gas…………..……...……………….…23
2. The Colorado Oil and Gas Conservation Commission
expressly allows and regulates Hydraulic Fracturing……..25
3. The City of Longmont has banned any Hydraulic
Fracturing Operations and storage and disposal of related
wastes from any location within Longmont ...……………...29
4. An impermissible operational conflict exists when a
locality prohibits an oil and gas operation that the state
allows……………………………………………………….....30
5. Under the Operational Conflict Test, since an
irreconcilable conflict exists between the state rule and the
local rule in an area of exclusive state interest or of mixed
state and local interest, the local rule must yield to the state
rule and deemed preempted…………………………………33
5
III. CONCLUSION …………………………………...……………….42
TABLE OF AUTHORITIES
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CASES:
Amos v. Aspen Alps 123, LLC, ……………………………………………...9
280 P. 3d 1256, 1259 (Colo. 2012)
Bd. Of County Commissioners v. Bowen/Edwards Associates, Inc
830 P. 2d 1045, 1061 (Colo. 1992)…………………18,21,22,24,30,33,36,42
Bd. Of County Commissioners of Gunnison County v. BDS International,
LLC,………………………………………………………………….36,37,41
159 P. 3d 773, 779 (Colo. App. 2006)
Cit of Northglenn v. Ibarra, …………………………………………...…..34
62 P. 3d 151, 155, 163 (Colo. 2003)
Colorado Mining Association v. Board of County Commissioners of Summit
County, 199 P. 3d 718, 730 (Colo. 2009)………………………...19,21,31,41
JAM Restaurant, Inc. V. City of Longmont, …………………………...…..39
140 P. 3d 192 (Colo. App. Div. 2 2006)
Town of Carbondale v. GSS Properties, LLC, ………………………...…..33
140 P. 3d 53, 59-60 (Colo. App. 2005)
Town of Frederick v. North American Resources Company……..18,22,37,41
60 P. 3d 758, 761 (Colo.App.2002)
Town of Milliken v. Kerr-McGee Oil & Gas Onshore, LP……….….…31,37
2013 COA 72, 12 CA 1618 (Colo. App 2013)
Town of Telluride, CO v. Lot Thirty-Four Venture, L.L.C.,…………….….38
3 P. 3d 30 (Colo. 2000)
Voss v. Lundvall Brothers, Inc., ……………………….11,24,34,35,36,41,42
830 P. 2d 1061 (Colo. 1992)
Webb v. City of Black Hawk, ……………………………………..…32,34,38
295 P. 3d 480, 2013 CO 9 (Colo. 2013)
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RULES AND STATUTES:
C.R.S. Section 34-60-101……………………………………………..……24
C.R.S. Section 34-60-106(2)(a), (2)(b), (2)(d) ………………………..20,24
C.R.S. Section 34-60-106(15)…………………………………………...…38
C.O.G.C.C. Rule 205……………………………………………………….27
C.O.G.C.C. Rules 303 ……….…………………………………….………27
C.O.G.C.C. Rule 303 E…………………………………………………….27
C.O.G.C.C. Rule 305 . 27
C.O.G.C.C. Rule 305. E. (1)…………………………………………….…27
C.O.G.C.C. Rule 305. (c)(1)(iii)………………………………………...…28
C.O.G.C.C. Rule 316…………………………………………………….…28
C.O.G.C.C. Rule 316C……………………………………………………..27
C.O.G.C.C. Completed Interval Report, Form 5A…………………………27
C.O.G.C.C. Rule 317A………………………………………………..……28
C.O.G.C.C. Rule 318A. 4………………………………………………….28
C.O.G.C.C. Rule 325……………………………………………………….28
C.O.G.C.C. Rule 604………………………………………………...……..28
C.O.G.C.C. Rule 703……………………………………………………….28
C.O.G.C.C. Rule 706…………………………………………………….…28
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C.O.G.C.C. Rule 802…………………………………………………...…..28
C.O.G.C.C. Rule 804……………………………………………………….28
C.O.G.C.C. Rule 805…………………………………………………...…..28
C.O.G.C.C. Rule 907……………………………………………………….28
C.O.G.C.C. Rule 908……………………………………………………….28
C.O.G.C.C. Rule 1002…….……………………………………………….28
C.O.G.C.C. Rule 1003……………………………………………………..28
Longmont Resolution R-2012-67…………………………………….…….29
Longmont Resolution R-2012-79…………………………………………..13
Article XVI of the Longmont Municipal Code…………………………….10
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STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
Plaintiff-Appellee TOP Operating Company disagrees with the
Statements of the Issues Presented for review by the Appellants. These
statements consist of argument. TOP contends that the issue is properly
stated as whether the District Court erred in ruling that under Colorado
law, Longmont’s fracking ban is invalid as preempted by state law and by
operational conflict.
STANDARD OF REVIEW AND PRESERVATION FOR APPEAL
Longmont’s Opening Brief does not provide under a separate
heading a statement of the applicable standard of review. However, TOP
acknowledges that appellate review of a grant of summary judgment is
done on a de novo basis. Amos v. Aspen Alps 123, LLC, 280 P. 3d 1256,
1259 (Colo. 2012). TOP also states that the issues were preserved for
appellate review.
I. STATEMENT OF THE CASE
A. NATURE OF THE CASE
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Longmont voters passed a referendum then adopted as Article
XVI of the Longmont Municipal Charter which contains an absolute and
permanent ban on any hydraulic fracturing operations within Longmont.
Not surprisingly since enactment of the ban, not a single oil and gas well has
been drilled and completed within Longmont. The Colorado Oil and Gas
Association commenced the present action and TOP Operating Company,
the principal oil and gas operator within Longmont, and the Colorado Oil
and Gas Conservation Commission then intervened as Plaintiffs. All
Plaintiffs sought a judicial declaration and injunction that Longmont’s
fracking ban is invalid as preempted by Colorado law.
As set forth in more detail below, the Boulder County District Court
properly ruled that no genuine issues of material fact exist, the ban on
hydraulic fracturing passed by Longmont directly conflicts with state policy
and rules which allow hydraulic fracturing, and Longmont’s ban is,
therefore, invalid as preempted by state law.
B. COURSE OF PROCEEDINGS
After considerable discovery, including the taking of numerous
depositions, each Plaintiff filed a Motion for Summary Judgment. TOP’s
Motion for Summary Judgment appears in the Record on Appeal (“Record’)
at pages 450-540.
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On July 24, 2014, Boulder County District Court Judge Mallard
entered an Order Granting Summary Judgment, which is the subject of this
Appeal. Record, pp. 2071-2087. Judge Mallard found that resolution of this
matter by summary judgment was appropriate, reasoning as follows:
This Court, like the courts in Voss, the Town of Frederick,
and BDS, finds it can resolve this matter in an order of summary
judgment. The operational conflict in this case is obvious and
patent on its face. There are no genuine issues of material fact in
dispute. There is no need for an evidentiary hearing to determine
whether the ban on hydraulic fracturing, as a practical matter,
creates operational conflict.
Record, p. 2087. Based on this operational conflict, the Court entered
declaratory judgment that Article XVI “is invalid as a result of operational
conflict preemption.” The Court also granted the Plaintiffs’ request for an
injunction enjoining Longmont from enforcing the fracking ban, and then
stayed the injunction during the pendency of this appeal. Id.
C. STATEMENT OF UNDISPUTED FACTS
1. TOP Operating’s Interests in Longmont. TOP Operating
Co. (“TOP”) is a Colorado corporation that owns oil and gas interests and
operates oil and gas wells in Colorado. The principal holdings of TOP,
which consist of undrilled lease acreage and producing oil and gas wells, are
located within or adjoining to the City of Longmont. See Record, pp. 534-
536, Affidavit of Murray Herring attached as Exhibit B to TOP’s Motion for
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Summary Judgment. These oil and gas assets are located within the
Wattenberg field.
2. 2012 Contracts between TOP and Longmont. In the
summer of 2012 after lengthy negotiations and studies, the City of
Longmont, acting through its City Council and Mayor, entered into contracts
with TOP providing for TOP’s development of its oil and gas leases in
Longmont, expressly including oil and gas development of both surface and
mineral rights owned by Longmont. These contracts consist of the Master
Contract dated August 8, 2012 and Operator’s Agreement dated July 17,
2012. See Record, pp. 471-486, 492-517, Exhibit D to Motion for Summary
Judgment.
3. Longmont expressly permits hydraulic fracturing in its
2012 Contracts with TOP. In these 2012 contracts, as to Longmont’s
mineral rights, Longmont ratified the validity of previous oil and gas leases
previously taken by TOP in which Longmont had succeeded to a
mineral/royalty interest and executed three new oil and gas leases to TOP on
other minerals owned by Longmont. In addition to leasing its mineral rights,
Longmont expressly contracted for TOP’s use of certain of Longmont’s
surface properties to conduct its oil and gas operations. These contracts
expressly provide for TOP’s right to conduct fracking and re-fracking
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operations on such surface location. In particular, Paragraph 1.b of the
Operator’s Agreement states, in pertinent part, as follows:
Subject to the terms and conditions of the Contract and this
Agreement, the Sites shall be made available to the Company
for its use and in their present condition for all oil and gas
operations to be conducted by the Company in accordance
with this Agreement and the Contract, which operations may
include, but are not limited to, drilling, completion, and
maintenance of wells and equipment, production operations,
workovers, well recompletions and deepenings, fracturing,
re-fracturing, twinning, and drilling of replacement wells and
the location of associated oil and gas production and drilling
equipment and facilities (“Operations”). (Emphasis added.)
Record, p. 500, Operator’s agreement, p. 1.
4. Inconsistent nature of Longmont claims. Only a few
months after execution of these contracts, in November 2012, the Longmont
voters passed Resolution R-2012-79, which contains an absolute and
permanent ban on any hydraulic fracturing operations within Longmont. It
goes without saying the current claims in Longmont’s Brief as to the
environmental hazards associated with fracking and as to TOP’s inability to
safely operate were not believed by Longmont’s City Council and Mayor in
July and August 2012, when these contracts were executed, and these claims
are entirely inconsistent with the contracts and determinations made in the
summer of 2012 by Longmont in expressly allowing fracking and other oil
and gas operations by TOP on Longmont owned properties.
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5. TOP’s practice and intent to hydraulically fracture all
TOP’s oil and gas wells in the Wattenberg Field. For the last twenty to
thirty years, all wells drilled by TOP and virtually, if not all, wells drilled by
other operators in the Wattenberg field to the normal targeted formations,
consisting of the Codell, Niobrara, and J Sand shale formations, have been
completed with hydraulic fracturing and hydraulic fracking is a standard and
essential industry practice 1. See Record, p. 535, Affidavit of Murray
Herring, paragraph 5; p. 585, Report of Oil and Gas Commission, December
2011, finding that “Nearly all active wells in Colorado have been
hydraulically fractured.”
In accordance with standard industry practice in the Wattenberg Field,
TOP plans to utilize hydraulic fracturing as to the targeted formation(s),
which consist of the Codell, Niobrara, and J Sand shale formations, in all
wells in Longmont. Record, p. 535. TOP will not and cannot economically
drill and complete these wells without the ability to conduct hydraulic
fracturing operations, which it is currently unable to do in view of
Longmont’s fracking, ban. Id. TOP did obtain a drilling permit from
Longmont but in view of Longmont’s permit condition that fracking is not
1 . - The only evidence presented by Defendants of oil and gas wells drilled
in the Wattenberg Field without hydraulic fracturing concerns a few wells
drilled into the Lyons Formation, which is not a shale formation.
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permitted; TOP has not drilled the permitted well. See Record, p. 538,
Drilling Permit, p. 1, attached as Exhibit A to TOP’s Motion for Summary
Judgment. Since passage of the fracking ban in November 2012, TOP has
not drilled any wells in Longmont. The only well drilled since November
2012 within Longmont was done by Synergy Resources, Inc. (“Synergy”).
Although Synergy drilled a well from the Town of Firestone in the vicinity
of the border with Longmont and ran laterals into bottom hole locations with
Longmont, because of the hydraulic fracturing ban, Synergy never
completed and has yet to produce the portion of the well and minerals
underlying Longmont. See Record, p. 565, Affidavit of Edward Holloway,
paragraphs 5-8; p. 2023, Exhibit E, deposition of Ed Holloway, pp. 74-75.
6. Conflict between Longmont and State Rules as to
Hydraulic Fracturing. There is a conflict between Longmont’s fracking
ban and the rules and policies followed by the Colorado Oil and Gas
Conservation Commission (referred to as “the Commission” or the
“COGCC”). As explained in Section II.B below, this conflict is actual and
direct: Longmont expressly prohibits hydraulic fracturing and the COGCC
expressly allows hydraulic fracturing.
II. ARGUMENT
A. SUMMARY OF ARGUMENT
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The District Court properly ruled that the City of Longmont’s
absolute and permanent ban on fracking operations within Longmont is
preempted by state law and is, therefore, invalid. This ruling is consistent
and in accordance with two legal principles that have been firmly established
in the Colorado cases. First, as a matter of law, Longmont’s attempt to
prohibit a technical aspect of oil and gas operations like hydraulic fracturing
is impliedly preempted and the field of regulation of the technical aspects of
oil and gas operation is subject to the exclusive regulation of the Colorado
Oil and Gas Commission. Second, Longmont has prohibited hydraulic
fracturing, while the state oil and gas regulatory agency, the Colorado Oil
and Gas Conservation Commission, expressly allows an operator to conduct
fracking operations in all parts of Colorado. A direct and actual conflict
exists between the law and regulations of Longmont and the law and
regulations of the State of Colorado as to the ability to conduct hydraulic
fracturing of oil and gas wells. In view of this direct and unquestionable
operational conflict; the strong state policies in uniform regulation of oil
and gas operations, in ensuring that private property is not taken without just
compensation and in protecting the correlative rights of all Colorado owners
to obtain their fair share of oil and gas reserves; and the firmly established
Colorado judicial precedent that oil and gas regulation is a matter of
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exclusive state or mixed state and local concern, Longmont’s ban must yield
to and be deemed preempted by state law and regulation.
The District Court was also correct in finding that it could resolve this
matter in an order on summary judgment. Under the Colorado law of
preemption, the only factual issue for the trial court to determine is whether
the local law (i.e., Longmont’s fracking ban) creates an operational conflict
with state law and regulations. The District Court properly ruled that the
“operational conflict in this case is obvious and patent on its face” and no
genuine issues of material fact are in dispute. Record, p. 287. Contrary to
Appellants’ arguments, the evidence proferred by Appellants as to the safety
or environmental effects of fracking is not relevant and has not been deemed
relevant by any Colorado preemption case. Clearly, the Court’s role is not to
substitute its own judgment as to wisdom of the determination to allow
fracking, made after extensive review and rule making, by the state
administrative agency delegated to oversee oil and gas operations in
Colorado.
B. UNDER THE LAW OF IMPLIED PREEMPTION,
LONGMONT IS PREEMPTED FROM REGULATING A
TECHNICAL ASPECT OF OIL AND GAS OPERATIONS, SUCH AS
HYDRAULIC FRACTURING
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Appellants confuse the doctrines of express preemption and implied
preemption. It is correct that the Colorado Courts have held that the
Colorado Oil and Gas Conservation Act does not expressly preempt the
entire field of oil and gas regulation. Accordingly, TOP and the District
Court decision do not claim or rely upon express preemption as grounds to
invalidate the Longmont fracking ban. Rather, TOP contends that under the
alternative doctrine of implied preemption, Longmont’s attempts to regulate,
and indeed prohibit, a technical aspect of oil and gas operations, such as
hydraulic fracturing, is invalid. Indeed, in all situations in which the
Colorado Courts found that local regulations affecting oil and gas
operations were not preempted, the cases concerned local regulations that
either incidentally affected oil and gas operations, like the so-called “land
use coordination standards” designed to minimize conflicts between
differing land uses considered in Bd. of County Commissioners v.
Bowen/Edwards Associates, Inc., 830 P. 2d 1045, 1061 (Colo. 1992), or
attempted to regulate land use aspects of oil and gas operations, like noise
and visual impact, such as in Town of Frederick v. North American
Resources Company, 60 P. 3d 758, 761 (Colo. App. 2002). In marked
contrast to all the above cases, the present case involves a local
regulation that does not incidentally regulate but rather purports to
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directly prohibit a technical aspect and procedure of oil and gas
operations, namely the hydraulic fracturing completion technique.
The most direct and applicable precedent to the Longmont fracking
ban is the 2009 Colorado Supreme Court case of Colorado Mining
Association v. Board of County Commissioners of Summit County, 199 P. 3d
718, 730 (Colo. 2009). At issue in this case was the validity of a Summit
County ordinance that banned the use of toxic or acidic chemicals, such as
cyanide, for mineral processing in mining operations. As noted by the
Colorado Supreme Court, the “effect of this ordinance is to prohibit a certain
type of mining technique customarily used in the mineral industry to extract
precious metals, such as gold.” Id at 721. The state agency in charge, the
Colorado Mined Land Board, did not issue any specific cyanide permits, as
in the present case with respect to fracking, and had not promulgated any
express regulations allowing the use of cyanide. However, as found by the
Colorado Supreme Court, the Colorado legislature had assigned to the state
agency “the authority to authorize and comprehensively regulate the use of
toxic or acidic chemicals, such as cyanide, for mineral processing in mineral
operations, a field identified by the legislature.” Id. at 722. Similarly, in the
present case, under the Colorado Oil and Gas Conservation Act, the
Colorado Legislature has expressly provided for the Commission’s authority
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to regulate “drilling, producing … and all other operations for the production
of oil or gas”, “[t]he shooting and chemical treatment of wells”, and “[o]il
and gas operations so as to prevent and mitigate adverse environment
impacts”. C.R.S. Section 34-60-106(2) (a), (2) (b), (2) (d).
The Supreme Court struck down the Summit County ordinance on the
grounds of implied preemption: namely, by finding that the Colorado
General Assembly had assigned to the state agency the field of regulating
the technical issues as to the use of chemicals in mining operations. The
Court held, in pertinent part, as follows:
Application of the preemption analysis we utilized in
Voss, Ibarra, Banner Advertising, and other cases leads to the
conclusion that Summit County’s ban on the use of cyanide or
other toxic or acidic regents for mineral processing
impermissibly conflicts with the MLRA [Mined Land
Reclamation Act], resulting in the implied preemption of the
Summit County ordinance. Id….
The General Assembly assigned to the Board [the Mined
Land Reclamation Board] the authority to authorize and
comprehensively regulate the use of toxic or acidic chemicals,
such as cyanide, for mineral processing in mining operations
that Summit County’s existing ordinance would occupy,
negating the Board’s statutory role. We conclude that
Summit County’s existing ordinance is not a proper exercise
of its land use authority because it excludes what the
General Assembly has authorized. Due to the sufficiently
dominant state interest in the use of chemicals for mineral
processing, we hold that the MLRA impliedly preempts
Summit County’s ban on the use of toxic or acidic
chemicals, such as cyanide, in all Summit County zoning
districts. Id. at 723.
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This holding is directly applicable to the present case. To the same
extent that Summit County’s ban on the use of certain mining chemicals is
preempted because of the state’s grant of exclusive authority to the state
mining agency to regulate the use of chemicals for mining, Longmont’s
ban on fracking is similarly invalid because the field of regulation of
technical aspects of oil and gas operations is given and reserved to the
Colorado Oil and Gas Conservation Commission. Further, like Summit
County’s ban, Longmont’s Resolution affects an otherwise allowable
operation and technical aspect of oil and gas operations, which conflicts with
the Colorado Oil and Gas Commission’s delegated and exercised authority
to regulate this technical aspect of oil and gas drilling.
Colorado Mining Association v. Board of County Commissioners of
Summit County, 199 P. 3d 718, 730 (Colo. 2009) , is not only binding and
recent precedent from the Colorado Supreme Court, but, in addition, is
consistent with the holdings in oil and gas preemption decisions relating to
the lack of local authority to regulate technical aspects of oil and gas
operations. For example, in Bd. of County Commissioners v.
Bowen/Edwards Associates, Inc., 830 P. 2d 1045 (Colo. 1992), the Supreme
Court noted the need for uniform state regulation of the technical aspects of
22
drilling while allowing local regulation of traditional land use matters,
stating as follows:
[P]reemption may be inferred if the state statute impliedly
evinces a legislative intent to completely occupy a given field
by reason of a dominant state interest…
There is no question that the efficient and equitable
development and production of oil and gas resources within the
state requires the uniform regulation of the technical aspects of
drilling, pumping, plugging, waste prevention, safety
precautions, and environmental restoration…. The state’s
interest in uniform regulation of these and similar matters,
however, does not militate in favor of an implied legislative
intent to preempt all aspects of a county’s statutory authority to
regulate land use within its jurisdiction….(Emphasis added.)
Id. at 1056, 1058.
In Town of Frederick v. North American Resources Company, 60 P. 3d
758, 761 (Colo. App. 2002), the Colorado Court of Appeals ruled that
“certain provisions of the Town’s ordinance do regulate technical aspects of
drilling and related activities and thus could not be enforced. Id at 764. The
Court noted that as held in Bd. of County Commissioners v. Bowen/Edwards
Associates, Inc., 830 P. 2d 1045 (Colo. 1992), only ‘nontechnical aspects’ of
oil and gas operations are subject to local regulation, stating as follows:
The Bowen/Edwards court did not say that the state’s interest
‘requires uniform regulation of drilling’ and similar activities.
Rather, according to the court, it ‘requires uniform regulation of
the technical aspects of drilling’ and similar activities. The
phrase ‘technical aspects’ suggests that there are ‘nontechnical
aspects’ that may yet be subject to local regulation. Id. at 763.
23
Proper application of the above holdings to the present case compels a
conclusion that the Longmont prohibition on hydraulic fracturing is invalid
under the doctrine of implied preemption, because it impermissibly attempts
to regulate a technical aspect of oil and gas operations, the regulation of
which is exclusively assigned to the Colorado Oil and Gas Conservation
Commission.
C. LONGMONT’S FRACKING BAN IMPERMISSABLY
CONFLICTS WITH STATE RULES AND POLICIES AND IS
INVALID AND PREEMPTED AS A MATTER OF LAW
Should the Court not find that the Longmont ban on hydraulic
fracturing is invalid under the doctrine of implied preemption, then the Court
must undertake the analysis of whether an impermissible operational conflict
exists between the Longmont ordinance and state rules and policies.
1. COLORADO HAS A SUBSTANTIAL STATE INTEREST
IN UNIFORM REGULATION OF OIL AND GAS OPERATIONS
The law is firmly established in Colorado that oil and gas regulation is
a matter of state concern and interest. Both the legislature and the Courts
have unequivocally recognized that the state has a substantial interest in
regulation of oil and gas operations In particular, the Colorado Supreme
Court cases and the legislation have recognized the state’s strong interest in
the uniform, efficient and fair development of oil and gas resources and,
regardless of where located, and in protecting the coequal and correlative
24
rights of mineral owners and producers throughout the state to a fair share of
the production profits. See Voss v. Lundvall Brothers, Inc., 830 P. 2d 1061
(Colo. 1992) and Bd. of County Commissioners v. Bowen/Edwards
Associates, Inc., 830 P. 2d 1045 (Colo. 1992); Oil and Gas Conservation
Act, C.R.S. Section 34-60-101 et. seq. Colorado has empowered the
Colorado Oil and Gas Conservation Commission as the agency with the
expertise, manpower, and authority to regulate oil and gas development and
effects upon safety and the environment and throughout the state, including
as to all downhole operations like hydraulic fracturing. Since passage of the
Oil and Gas Conservation Act in 1951 and continuing with amendments
throughout 2013, the Colorado Legislature has expressly provided for the
Commission’s authority to regulate “drilling, producing and all other
operations for the production of oil or gas”, “[t]he shooting and chemical
treatment of wells”, and “[o]il and gas operations so as to prevent and
mitigate adverse environment impacts”. C.R.S. Section 34-60-106(2) (a),
(2) (b), (2) (d). As set forth in more detail below, in accordance with this
statutory authority, the Commission has enacted comprehensive rules and
regulations governing oil and gas operations, expressly including and
permitting hydraulic fracturing operations. Accordingly, for purposes of the
preemption analysis in the present case, Colorado law is established that the
25
matter of regulation of oil and gas operations is either an exclusive state or a
mixed state and local concern.
2. THE COLORADO OIL AND GAS
CONSERVATION COMMISSION EXPRESSLY ALLOWS AND
REGULATES HYDRAULIC FRACTURING
There can be no factual dispute that pursuant to the authority
delegated to the Commission, the Commission allows hydraulic fracturing of
all oil and gas wells in Colorado, including wells located in Longmont.
Indeed, on December 13, 2011, as indicated in the Report of Commission
beginning on P. 584 of the Record and attached as Exhibit C to TOP’s
Motion for Summary Judgment, the Commission completed its rule making
as to hydraulic fracturing, stating “A major reason for adopting the new rules
and amendments was to address concerns regarding hydraulic fracturing”.
Record. p. 593. As indicated in this Report, the Commission’s decision to
allow hydraulic fracturing was done in its capacity as the agency with the
expertise to regulate oil and gas operations, was based on substantial
scientific study and on “discussions with those intergovernmental
organizations, as well as other states, industry associations, individual
operators, and conservation groups” and to “strike a reasonable balance”.
Record, P. 594 The court should defer to the determinations made by the
Colorado Oil and Gas Conservation Committee and require Longmont to
26
participate in the permitting process before the COGCC as a local
governmental designee rather than creating its own conflicting regulatory
prohibitory scheme.
Not a single preemption decision by the Colorado courts has ever held
that it is the trial court’s function to question the regulatory determinations
made the state agency or to make its own judgment as to the safety, need for,
and environmental consequences to the locality of a particular oil and gas
operation. The pages upon pages of argument and factual claims contained
in the briefs of Longmont and the Citizens’ Intervenors as to the safety, local
environmental effects, property value effects, and technical need for
hydraulic fracturing are entirely irrelevant to the required preemption
analysis. The relevant standard in a preemption case is simply if the local
regulation is not impliedly preempted and if the matter is one of exclusive or
mixed state concern, as in the present case, whether an operational conflict
exists between the local and state rule which would compel a finding of
preemption. While TOP vigorously disagrees with most, if not all, of
Defendant’s environmental contentions, in view of their irrelevance, it is
beyond the scope of this Reply to address and refute these contentions.
Defendants correctly state that the Commission does not require a
separate permit to conduct hydraulic fracturing. However, the fact that the
27
Commission does not require a separate permit for a particular operation is
irrelevant and does not mean it is not subject to regulation; indeed, the
Commission regulates virtually all oil and gas operations, including surface
configuration and related setbacks, the installation of casing and tubing,
drilling operations, perforating, and completion pursuant to two general
permits, namely the Form 2A Oil and Gas Location Assessment and the
Application for Permit to Drill. See Rules 303 and 305 of the Colorado Oil
and Gas Conservation Commission.
Further, in addition to the general permits required for drilling a new
well, hydraulic fracturing is regulated by numerous specific COGCC
regulations. Commission regulations include requirements expressly
applicable to hydraulic fracturing. These rules include disclosure of
chemicals used in hydraulic fracturing treatments (Rule 205); notice to
landowners of the details of hydraulic fracturing treatments (Rule 305.E.
(1)); advance written notice of any hydraulic fracturing treatments and
completion of a specified Form 42 as to such treatments, a copy of which is
also provided to the local governmental designee (Rule 316C); and the filing
of a Completed Interval Report, Form 5A; which must contain the details of
any hydraulic fracturing treatment. The Commission has also adopted
numerous rules designed to ensure safety and prevent adverse environmental
28
of all oil and gas operations, which apply to hydraulic fracturing, including
requiring tests or surveys to determine the occurrence of water pollution,
such as Braidenhead monitoring of the annulus between the production
tubing and casing (Rule 305(c)(1)(iii)); requiring operators to install casing
that satisfies specified quality and quantity requirements and to follow
specified cementing procedures in order to protect and isolate groundwater
formations (Rule 317A); groundwater monitoring to determine and prevent
contamination (Rule 318A.4); procedures for the disposal of fluids,
including fluids used for hydraulic fracturing (Rule 325); preparation,
interim reclamation and final reclamation of drill sites ( Rules 1002, 1003);
financial assurance requirements on operators, including for protection of
surface owners ( Rule 703); notices to and consultation with surface owners
and local government representatives (Rule 316); regulation of odors and
dust from oil and gas operations, including as to sand used in fracking
operations (Rule 805); noise abatement requirements (Rule 802); visual
impact rules (Rule 804; protection of soil (Rule 706); disposal of waste and
fluids (Rules 907 and 908); mitigation measures in certain circumstances,
such as requiring closed loop systems as to fluids used in oil and gas
operation (Rule 604); and procedures for inspection and enforcement of the
Commission’s rules.
29
In summary, the Commission expressly permits Operators to utilize
hydraulic fracturing procedures on all wells in Colorado and regulates these
and related procedures through detailed and comprehensive rules,
regulations, and drilling related permits.
3. THE CITY OF LONGMONT HAS BANNED ANY
HYDRAULIC FRACTURING OPERATIONS AND STORAGE AND
DISPOSAL OF RELATED WASTES FROM ANY LOCATION
WITHIN LONGMONT.
In November 2012, Longmont passed Resolution R-2012-67. This
Resolution contains an absolute and permanent ban on any hydraulic
fracturing operations within Longmont and on the storage or disposal of
wastes created in connection with the hydraulic fracturing process within
Longmont. Since passage of this Resolution, Longmont has required as a
condition of approval for any oil and gas well drilled in Longmont a ban on
the use of any hydraulic fracturing (‘fracking”) techniques. See Record, p.
538, Exhibit A to TOP’s Motion for Summary Judgment. Accordingly,
Longmont unequivocally prohibits oil and gas owners from conducting
fracking operations under all circumstances as to property located within
Longmont, while the State of Colorado unequivocally allows fracking
subject to compliance with regulatory requirements.
30
4. AN IMPERMISSABLE OPERATIONAL CONFLICT EXISTS
WHEN A LOCALITY PROHIBITS AN OIL AND GAS
OPERATION THAT THE STATE ALLOWS
The argument made by Longmont and Citizens Intervenors there is no
conflict between Longmont and the COGCC’s rules as to hydraulic
fracturing is frankly ludicrous and without any foundation in law or fact.
The Colorado courts have repeatedly recognized that operational conflict is
not limited to situations in which the Commission issues an express permit
for the activity in question and the requirements for the state permit conflict
with local permitting requirements. Rather, an impermissible conflict is
deemed to exist where among other things, the locality bans a practice and
the state allows the practice.
As held by the Colorado Supreme Court in Bowen Edwards, at 1060,
an impermissible operational conflict exist when a local government
imposes conditions on an oil and gas operation for which no such conditions
are imposed under the state regulatory scheme, stating as follows:
[T]he operational effect of the county regulations might be to
impose technical conditions on the drilling or pumping of wells
under circumstances where no such conditions are imposed
under the state statutory or regulatory scheme, or to impose
safety regulations or land restoration requirements contrary to
those required by state law or regulation. To the extent that
such operational conflicts might exist, the county regulations
must yield to the state interest.
31
In the 2009 Colorado Supreme Court case of Colorado Mining
Association v. Board of County Commissioners of Summit County, 199 P. 3d
718, 730 (Colo. 2009), a case also on all fours, the Colorado Supreme Court
held that operational conflict exists when a county bans a methodology
which the state has authorized a state agency to regulate, regardless of
whether the state agency has adopted express regulations as to such a
methodology or issued specific permits for use of a particular methodology.
Although the state agency in charge, the Colorado Mined Land Board, had
not issued any specific cyanide permits, as in the present case with respect to
fracking, and had not promulgated any express regulations allowing the use
of cyanide, the Court found nevertheless that an impermissible operational
conflict existed, stating as follows:
[A] local regulation and a state regulatory scheme
impermissibly conflict if they “contain either express or implied
conditions which are inconsistent and irreconcilable with each
other.” Id. at 725.
Similarly in the recent 2013 decision of the Colorado Court of Appeals
in Town of Milliken v. Kerr-McGee Oil & Gas Onshore, LP, 2013 COA 72,
12 CA 1618 (Colo. App. 2013) the Court ruled that a finding of preemption
based on operational conflict was not limited to circumstances in which the
32
Commission had actually promulgated a rule or permit condition which
expressly conflicted with the local regulation. Rather, as stated by the Court,
The relevant inquiry is whether the Town’s inspections
concern ‘matters that are subject to rule, regulation, order or
permit condition administered by the commission, Section 34-
69-106(5). The statute’s plain language does not limit its
application to matters on which the Commission has already
promulgated rules, regulations, orders, or permit conditions,
and we decline to read such a limitation into the statute. Id at p.
4.
The recent Colorado Supreme Court decision in Webb v. City of Black
Hawk, 295 P.3d 480, 2013 CO 9 (Colo. 2013), holds similarly that
preemption based on operational conflict exists if the home rule city’s
ordinance forbids what the state allows, stating as follows:
In light of our conclusion that the regulation of bicycle
traffic on municipal streets is of mixed state and local concern,
we next look to determine whether Black Hawk's ordinance
conflicts with state law. The test to determine whether a conflict
exists is whether the home-rule city's ordinance authorizes what
state statute forbids, or forbids what state statute authorizes.
The Webb case has most precedential value since it is the most
recent Colorado Supreme Court Case involving a preemption challenge
to a home rule city ordinance. Contrary to Appellants’ arguments, this
case establishes the standard for preemption as to home rule city. It
holds directly that the operational conflict test applies with a home rule
33
city, like Blackhawk, and an invalid conflict exists when the state
statute authorizes what the home rule ordinance forbids.
Applying these principles to the present case, based on the
evidentiary record presented in the summary judgment filings, the
conclusion is inescapable as a matter of law that a direct and actual
conflict exists between state rules and policies which allow hydraulic
fracturing and Longmont’s prohibition against hydraulic fracturing
and, therefore, the Longmont ban is preempted and invalid.
5. UNDER THE OPERATIONAL CONFLICT TEST, SINCE
AN IRRECONCILABLE CONFLICT EXISTS BETWEEN THE
STATE RULE AND THE LOCAL RULE IN AN AREA OF
EXCLUSIVE STATE INTEREST OR OF MIXED STATE AND
LOCAL INTEREST, THE LOCAL RULE MUST YIELD TO
THE STATE RULE AND IS DEEMED PREEMPTED
The policy behind the preemption doctrine in Colorado “is to establish
a priority among potentially conflicting laws enacted by various levels of
government.” Town of Carbondale v. GSS Properties, LLC, 140 P. 3d 53,
59-60 (Colo. App. 2005); Bd. of County Commissioners v. Bowen/ Edwards
Associates, Inc., 830 P. 2d 1045, 1057 (Colo. 1992). Given the clear conflict
between Longmont and State of Colorado rules as to fracking operations,
this case is a prime example of a conflict to be resolved under the law of
preemption.
34
The standard to evaluate preemption challenges to legislation passed by
home rule cities (like Longmont, like Blackhawk in Webb v. City of
Blackhawk, or like Greeley in Voss v. Lundvall Bros.) is well established.
The Courts have first analyzed whether the matter is one of statewide,
mixed, or local concern. If the local ordinance is a matter of purely local
concern, then the ordinance supersedes state law. If, however, the ordinance
affects a matter of statewide or mixed concern, then the state rule supersedes
and preempts the local ordinance if there is any conflict between the
different rules or if the state Constitution or state law does not provide
specific authorization to the locality to legislate in this area. City of
Northglenn v. Ibarra, 62 P. 3d 151, 155, 163 (Colo. 2003); Webb v. City of
Blackhawk, 295 P. 3d 496 (Colo. 2013) (applying the operational conflict
test to a home rule ordinance); Voss v. Lundvall Bros, 830 P.2d at 1067.
Contrary to the arguments raised by both Defendants, no Colorado
preemption case has ever held that a plaintiff bears the burden to prove
preemption beyond a reasonable doubt.
As discussed on pages 21-23 of the Brief, the law is firmly established
in Colorado that oil and gas regulation is a matter of state concern and
interest: the Colorado Courts have unequivocally and repeatedly held that
there is a strong need for and policy in favor of statewide uniformity as to
35
regulation of oil and gas development and that the “regulation of oil and gas
development and production has traditionally been a matter of state rather
than local control”. Voss, 830 P. 2d at 1068. In Voss v. Lundvall Bros, 830 P.
2d at 1068-1069, the Colorado Supreme Court noted that a home rule city’s
attempt to prevent oil and gas development within the city’s boundaries
impermissibly interfered with the strong state policy, as codified in the
Colorado Oil and Gas Conservation Act, of allowing each mineral owner of
lands within Colorado to obtain its equitable share of production profits from
oil and gas development, stating as follows:
Limiting production to only one portion of a pool outside the
city limits can result in an increased production cost, with the
result that the total drilling operation may be economically
unfeasible. Greeley's total drilling ban thus affects the ability of
nonresident owners of oil and gas interests in pools that
underlie both the city and land outside the city to obtain an
equitable share of production profits in contravention of one of
the statutory purposes of the Oil and Gas Conservation Act….
State preemption by reason of operational conflict can arise
where the effectuation of a local interest would materially
impede or destroy the state interest.”
Given the widespread, and indeed, universal use of fracking on all oil
and gas wells in the Wattenberg Field, the holding in Voss v. Lundvall Bros.,
supra, invalidating Greeley’s ban on drilling within municipal borders
compels the conclusion that Longmont’s prohibition of any fracking in the
Longmont part of the Wattenberg Field also acts as a de facto drilling ban
36
and is similarly preempted. TOP submits that Voss v. Lundval Bros. is
sufficient precedent in and of itself to invalidate Longmont’s fracking ban.
The Colorado courts have uniformly held that preemption is triggered
where local regulations materially impede the state interest, cannot be
harmonized with state statute or regulation, or contain conditions which are
inconsistent or irreconcilable with the state regulatory scheme. As stated in
Bowen/Edwards, 830 P. 2d at 1059, “State preemption by reason of
operational conflict can arise where the effectuation of a local interest would
materially impede or destroy the state interest.” As stated in Voss v.
Lundvall Bros., 830 P. 2d 1061, 1069 (Colo. 1992), “We conclude that the
state’s interest in efficient oil and gas development and production
throughout the state, as manifested in the Oil and Gas Conservation Act, is
sufficiently dominant to override a home-rule city’s imposition of a total ban
on the drilling of any oil, gas, or hydrocarbon wells within the city limits”.
In Board of County Commissioners of Gunnison County v. BDS
International, LLC, 159 P. 3d 773. 779 (Colo. App. 2006), the Colorado
Court of Appeals applied the operational conflict test, as follows: “Where
no possible construction of the County Regulations may be harmonized with
the state regulatory scheme, we must conclude that a particular regulation is
invalid.”
37
In Town of Frederick v. North American Resources Company, 60 P. 3d
758 (Colo. App. 2002), the Court held that Frederick’s ordinance provisions
imposing set back requirements for the location of wells, regulating noise
abatement, and regulating the visual impact of oil and gas operations
conflicted with detailed requirements of the Commission rules and were
invalid on the grounds of operational conflict. Id. at 765. In Board of
County Commissioners of Gunnison County v. BDS International, LLC, 159
P. 3d 773. 778 (Colo. App. 2006), the Court of Appeals held that Gunnison
County’s regulations concerning fines, financial guarantees, and access to
records were invalid “because they operationally conflict with state statutes
or regulations.
In Town of Milliken v. Kerr-McGee Oil & Gas Onshore, LP, 2013
COA 72, 12 CA 1618 (Colo. App. 2013), the Court held that the Town of
Milliken was preempted from imposing fees for site safety and security
inspections on oil and gas wells conducted by the Town’s police department.
The Court rejected Milliken’s argument that its inspections of oil and gas
wells were different from and therefore not in conflict with the
Commission’s inspections. The Court held that regardless of whether the
Commission’s inspections were the same as the Town’s inspections, “The
relevant inquiry is whether the Town’s inspections concern ‘matters that are
38
subject to rule, regulation, order or permit condition administered by the
commission.’ Section 34-60-106(15).” This holding applies with equal force
to the present case, since the technical aspects of oil and gas operations, like
fracking, are directly delegated to and regulated by the Commission.
In Town of Telluride, CO v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30
(Colo. 2000), the Colorado Supreme Court declared a Telluride ordinance
providing for rent control on private residential properties preempted by a
state statute that prohibited local municipalities from controlling rents,
stating as follows:
After determining that this is an issue of mixed local and
state concern, the next step in the analysis is to ask whether the
home rule ordinance conflicts with the state legislation. See
National Adver. Co., 751 P.2d at 638. Since we find Ordinance
1011 to be a form of rent control, the ordinance clearly conflicts
with the state statute. See supra, Part II. Because the two
measures conflict, the local ordinance must yield to the state
statute.
In the recent case of Webb v. City of Black Hawk, 295 P.3d 480, 2013
CO 9 (Colo. 2013), the Colorado Supreme Court considered the validity of a
ban by the City of Black Hawk of bicycles upon city streets. The Court
determined that Black Hawk’s ban was invalid as preempted by state law
providing that local governments can ban bicycle traffic only where a
suitable and adjacent bike path is established, stating as follows:
39
In light of our conclusion that the regulation of bicycle
traffic on municipal streets is of mixed state and local
concern, we next look to determine whether Black Hawk's
ordinance conflicts with state law. The test to determine
whether a conflict exists is whether the home-rule city's
ordinance authorizes what state statute forbids, or forbids what
state statute authorizes.
The Court in Webb reaffirmed the state’s interest in regulatory uniformity,
in avoiding extraterritorial effects on state residents outside the municipality,
and in preventing a municipality from forbidding any activity that is
expressly permitted by state regulation.
Although not an oil and gas case and there is no direct “takings” claim
asserted in this case, JAM Restaurant, Inc. v. City of Longmont, 140 P.3d
192 (Colo. App. Div. 2 2006), is relevant in holding that even matters of
traditional local concern, like zoning, are preempted if they interfere with a
strong state policy, such as prohibiting the taking of private property without
just compensation. In this case, the Colorado Court of Appeals examined
the constitutionality of a Longmont ordinance which limited the locations of
“sexually oriented businesses” to industrially zoned areas. In response to a
challenge by the owner of a cabaret featuring nude dancing which was not
located in an industrial zone, the Court struck down this part of the City’s
zoning statute. In particular, the Court held that the Longmont ordinance
40
was preempted by the state law prohibiting the taking of private property
without just compensation. The Court reasoned as follows:
We also must determine whether the Colorado Constitution
specifically commits zoning to state or local regulation. We
conclude the issue here is not exclusively committed to local
regulation. As previously noted, § 38-1-101 (3) (a) is not a
zoning regulation. It was enacted to protect inalienable property
rights recognized by the Colorado Constitution. Because
inalienable property rights are involved, both local and state
concerns are implicated, and the constitution "cannot be read to
dictate the matter at issue as one of exclusively local concern."
City of Northglenn v. Ibarra, supra, 62 P.3d at 162 (quoting
City of Commerce City v. State, supra, 40 P.3d at 1283-84).
Although zoning regulations generally have little
extraterritorial impact and are traditionally a matter of local
concern, in consideration of the legislative declaration
respecting § 38-1-10(3)(a) and the importance of protecting
constitutionally based property rights, we conclude preventing
the taking of private property without just compensation is a
matter of statewide or, at the least, mixed concern. 140 P.3d
197. We therefore conclude § 38-1-101(3) (a) is constitutional,
does not violate the home rule amendment to the Colorado
Constitution, and prevails over Longmont's zoning ordinance as
applied to JAM.
This ruling, which has not been disturbed or questioned by the
Colorado Supreme Court, presents additional support for a determination
that Longmont’s fracking ban, is preempted and unconstitutional. Not only
is the fracking ban preempted by conflict with state regulation of this
technical aspect of oil and gas operation, but, in addition, another factor
supporting the District Court’s ruling is that Longmont’s fracking ban
41
unduly conflicts with state law requiring just compensation for the taking of
private property. Undisputedly, the oil and gas reserves owned by TOP
within Longmont’s boundaries are extremely valuable using customary
drilling and completion practices, including fracking, are private property
and are rendered essentially worthless and thus deemed “taken” by
Longmont’s fracking prohibition.
In Colorado Mining Association v. Board of County Commissioners of
Summit County, 199 P. 3d 718, 725 (Colo. 2009), the Colorado Supreme
Court made it clear that in a matter of mixed concerns, the state rule
preempts the local rule if there is any conflict between the rules stating as
follows:
“Mere overlap in subject matter is not sufficient to void a
local ordinance. However, a local regulation and a state
regulatory statute impermissibly conflict if they” contain either
express or implied conditions which are inconsistent or
irreconcilable with each other.” If a local ordinance affects a
matter of statewide or mixed concern, then the state rule
supersedes and preempts the local ordinance if there is any
conflict between the different rules. City of Northglenn v.
Ibarra, 62 P. 3d 151, 155, 163 (Colo. 2003); Webb v. City of
Blackhawk, 295 P. 3d 496 (Colo. 2013); Voss v. Lundvall Bros,
830 P.2d at 1067.
The above determination is usually made by the Court based on the
evidentiary record presented on summary judgment without an evidentiary
hearing, as in Voss v. Lundvall Bros, Town of Frederick, and Gunnison
42
County v. BDS. In the present case, the determination of preemption should
be made as a matter of law. Colorado law is firmly established that oil and
gas regulation, especially including regulation over technical aspects of oil
and gas operations (such as the COGCC’s decision to allow hydraulic
fracturing on all oil and gas wells located in Colorado subject to an
operator’s compliance with the Commission’s rules, regulations, and permit
conditions) is a matter of exclusive state or mixed state or local concern. See
Voss v. Lundvall Brothers, Inc., 830 P. 2d 1061, 1068 (Colo. 1992) and Bd.
of County Commissioners v. Bowen/Edwards Associates, Inc., 830 P. 2d
1045 (Colo. 1992). Further, there is no genuine issue of material fact that an
operational conflict exists between the Longmont prohibition of hydraulic
fracturing and the rules, regulations, and policies of the COGCC, which
expressly allow hydraulic fracturing on all wells in Colorado subject to
compliance with regulatory requirements.
III. CONCLUSION
WHEREFORE, Defendant TOP Operating Company prays that the
District Court’s ruling be affirmed, declaring that Longmont ‘s fracking ban
is invalid and preempted by state law and enjoining the City of Longmont
from any further enforcement of this Resolution.
Dated this 5th day of March, 2015.
43
ZARLENGO & KIMMELL, LLC
/s/ Thomas J. Kimmell
Pursuant to CRCP 121, Section 1-
26(9) a duly signed original of this
document is on file at the offices of
Zarlengo & Kimmell, PC.
______________________________
Thomas J. Kimmell, Reg. No. 9043
CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of March, 2015, I served a true and
correct of the foregoing TOP OPERATING COMPANY’S AMENDED
ANSWER BRIEF via ICCES, addressed to the following:
Eugene Mei, City Attorney
Daniel E. Kramer, Assistant City Attorney
City of Longmont
Civic Center Complex
408 3rd
Avenue
Longmont, CO 80501
Phillip D. Barber, Esq.
1675 Larimer Street, Ste. 620
Denver, Colorado 80202
Russ Miller
Karen L. Spaulding
Beatty & Wozniak, P.C.
216 Sixteenth Street, Suite 1100
Denver, CO 80202-5115
Jake Matter, Assistant Attorney General
Ralph L. Carr, Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, CO 80203
E-Mail: [email protected]
44
Julie M. Murphy, #40683
Ralph L. Carr, Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, CO 80203
E-Mail: [email protected]
Attorney for COGCC
Kevin J. Lynch (Professor and Supervising Attorney; #39873) Elizabeth Kutch (Student Attorney) Timothy O’Leary (Student Attorney) Gina Tincher (Student Attorney)
University of Denver Sturm College of Law & Environmental Law Clinic
2255 E. Evans Ave, Ste 335
Denver, CO. 80208
E-mail: [email protected]
E-Mail: [email protected]
Christopher K Boeckx
Colorado Attorney General’s Office
1300 Broadway, 10th Fl
Denver CO 80203
Fax: 720-580-6039
COGCC Counsel
Geoffrey T. Wilson, #11574
COLORADO MUNICIPAL LEAGUE
1144 Sherman Street
Denver, Colorado 80203
Fax: (303) 860-8175
E-mail: [email protected]
City of Boulder’s Attorney’s Name:
Office of the City Attorney
Thomas A. Carr
Address: P.O. Box 791
Boulder, CO 80306
Fax Number: (303) 441-3859
E-mail: [email protected]
45
Attorney for Board of County Commissioners of County of Boulder, State of
Colorado
Jeffery P. Robbins, Reg # 26649
Goldman, Robbins & Nicholson, P.C>
679 E. 2nd
Ave., Suite C
PO Box 2270
Durango, CO 81302
(970)259-8747
Representative Jared Polis, Pro Se
1433 Longworth
House Office Building
Washington DC 20515
(202)225-2161
/s/ Anne Vanvors
