COLORADO COURT OF APPEALS

2 East 14th Avenue

Denver, Colorado 80203
Appeal from Boulder County District Court
The Honorable D.D. Mallard
Case No. 2013CV63
Plaintiff-Appellee: Colorado Oil and Gas Association,
v.
Defendant-Appellant: City of Longmont, Colorado,
and
Intervenors-Appellants: Our Health Our Future Our
Longmont; Food and Water Watch; Earthworks; and
Sierra Club,
and
Intervenor-Appellee: TOP Operating Company,
and
Appellee: Colorado Oil and Gas Conservation
Commission.

COURT USE ONLY

Steven J. Lechner (#19853)

Jaimie Cavanaugh (#44639)
MOUNTAIN STATES LEGAL FOUNDATION
2596 South Lewis Way
Lakewood, Colorado 80227
(303) 292-2021
(303) 292-1980 (facsimile)
lechner@mountainstateslegal.com
jcavanaugh@mountainstateslegal.com

Court of Appeals Case

No.: 2014CA1759

BRIEF OF AMICUS CURIAE MOUNTAIN STATES LEGAL

FOUNDATION IN SUPPORT OF APPELLEES

CERTIFICATE OF COMPLIANCE
I hereby certify that this amicus curiae brief complies with all requirements
of C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in
these rules. The undersigned further certifies that the brief complies with C.A.R.
28(g) because it contains 4,710 words. Finally, the undersigned acknowledges that
this amicus curiae brief may be stricken if it fails to comply with any of the
requirements of C.A.R. 28 and C.A.R. 32.
DATED this 5th day of March 2015.
Respectfully submitted,
s/ Steven J. Lechner
Steven J. Lechner (#19853)
Mountain States Legal Foundation
2596 South Lewis Way
Lakewood, Colorado 80227
(303) 292-2021
(303) 292-1980 (facsimile)
lechner@mountainstateslegal.com
Attorney for Amicus Curiae
Mountain States Legal Foundation

TABLE OF CONTENTS
Page
CERTIFICATE OF COMPLIANCE ...................................................

TABLE OF AUTHORITIES ................................................................

iii

STATEMENT OF THE ISSUE ............................................................

IDENTITY AND INTEREST OF AMICUS CURIAE........................

STATEMENT OF THE CASE .............................................................

SUMMARY OF THE ARGUMENT ...................................................

ARGUMENT ........................................................................................

I.

THE PRINCIPLE FUNCTION OF GOVERNMENT IS TO

PROTECT PROPERTY .............................................................

II.

PROPERTY IS ESSENTIAL TO LIBERTY.............................

10

III.

THE JUDICIARY IS RESPONSIBLE FOR PROTECTING

PROPERTY FROM OPPRESSIVE FACTIONS ......................

13

ARTICLE XVI OF THE LONGMONT CHARTER

CAUSES WASTE AND EVISCERATES PROPERTY
RIGHTS IN DIRECT CONTRAVENTION OF THE OGCA ..

16

CONCLUSION .....................................................................................

19

CERTIFICATE OF SERVICE .............................................................

20

IV.

ii

TABLE OF AUTHORITIES
Page
CASES
Armstrong v. United States,
364 U.S. 40 (1960) .............................................................................

19

Bank of Columbia v. Okely,

17 U.S. 235 (1819) .............................................................................

Bd. of Cnty. Commrs, La Plata Cnty. v. Bowen/Edwards

Associates, Inc.,
830 P.2d 1045 (Colo. 1992) (en banc) ...............................................

Bd. of Cnty. Commrs v. Vail Associates, Inc.,

19 P.3d 1263 (Colo. 2001) .................................................................

15

Chicago, Burlington & Quincy R.R. Co. v. Chicago,

166 U.S. 226 (1897) ...........................................................................

11

Dolan v. City of Tigard,

512 U.S. 374 (1994) ...........................................................................

12

Energy Mgmt. Corp. v. City of Shreveport,

397 F.3d 297 (5th Cir. 2005) .............................................................

1819

Gerrity Oil & Gas Corp. v. Magness,

946 P.2d 913 (Colo. 1997) (en banc) .................................................

17

Joint Landowners Coalition of New York, Inc. v. Cuomo,

Index No. 843-2014 (N.Y. Sup. Ct, Albany County)
(appeal filed July 25, 2014) ...............................................................

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ...........................................................................

16

Lucas v. S. Carolina Coastal Council,

505 U.S. 1003 (1992) .........................................................................

iii

Lynch v. Household Finance Corp.,

405 U.S. 538 (1972) ...........................................................................

12

Marbury v. Madison,
5 U.S. 137 (1803) ...............................................................................

15

Marvin M. Brandt Revocable Trust v. United States,

134 S. Ct. 1257 (2014) .......................................................................

Miller Bros. v. Dept of Natural Res.,

513 N.W.2d 217 (Mich. App. 1994) ..................................................

1, 18

Minard Run Oil Co. v. U.S. Forest Serv.,

670 F.3d 236 (3d Cir. 2011), as amended (Mar. 7, 2012) .................

Mitchell v. Espinosa,
243 P.2d 412 (Colo. 1952) .................................................................

1617

Monongahela Navigation Co. v. United States,

148 U.S. 312 (1893) ...........................................................................

10

Murray v. Hoboken Land & Imp. Co.,

59 U.S. 272 (1855) .............................................................................

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) ...........................................................................

17

Rocky Mountain Fuel Co. v. Heflin,

366 P.2d 577 (Colo. 1962) .................................................................

17

Simson v. Langholf,
293 P.2d 302 (Colo. 1956) .................................................................

17

SWEPI, LP v. Mora County, New Mexico,

No. CIV 14-0035 JB/SCY, 2015 WL 365923 (D.N.M. Jan. 19,
2015) ..................................................................................................

17, 18

iv

United States v. Carlton,

512 U.S. 26 (1994) .............................................................................

12

United States v. Carolene Products Co.,

304 U.S. 144 (1938) ...........................................................................

12

United States v. Gen. Motors Corp.,

323 U.S. 373 (1945) ...........................................................................

16

United States v. James Daniel Good Real Prop.,

510 U.S. 43 (1993) .............................................................................

12

United States v. Lee,

106 U.S. 196 (1882) ...........................................................................

14

Vermillion v. Mora County, New Mexico,

No. 1:13-cv-01095 CEG/GBW (D.N.M. filed Nov. 11, 2013) .........

Voss v. Lundvall Bros.,

830 P.2d 1061 (Colo. 1992) (en banc) ...............................................

Webbs Fabulous Pharmacies, Inc. v. Beckwith,

449 U.S. 155 (1980) ...........................................................................

W. Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ...........................................................................

13

Wilkinson v. Leland,
27 U.S. 627 (1829) .............................................................................

10

CONSTITUTIONAL PROVISIONS
COLO. CONST. art II, 3 ..........................................................................

78

COLO. CONST. art II, 25 ........................................................................

12

U.S. CONST. amend. V ............................................................................

11

U.S. CONST. amend. XIV ........................................................................

12

STATUTES
Oil and Gas Conservation Act, C.R.S. 34-60-101 to 130 .................. 4, 5, 16, 18
C.R.S. 34-60-102(1)(a)(III) ............................................................

18

C.R.S. 34-60-103(11)......................................................................

18

C.R.S. 34-60-103(12)......................................................................

18

C.R.S. 34-60-103 (13).....................................................................

18

OTHER
1 The Records of the Federal Convention of 1787 (Max Farrand
ed. 1937)..................................................................................................

Alex Ritchie, Creatures Of Circumstance: Conflicts Over Local

Government Regulation Of Oil And Gas, 60 RMMLF-INST 11-1
(2014) ......................................................................................................

Alex Ritchie, On Local Fracking Bans: Policy and Preemption in

New Mexico, 54 Nat. Resources J. 255 (2014) .......................................

2, 3

Allan Ingelson, Tina Hunter, A Regulatory Comparison of

Hydraulic Fracturing Fluid Disclosure Regimes in the United
States, Canada, and Australia, 54 Nat. Resources J. 217 (2014) ...........

Bernard H. Siegan, Economic Liberties and the Constitution

(2d ed. 2006) ...........................................................................................

5, 6

Bernard H. Siegan, Majorities May Limit the Peoples Liberties

Only When Authorized To Do So by the Constitution, 27 San
Diego L. Rev. 309 (1990) .......................................................................

13

vi

Bernard H. Siegan, Property and Freedom: The Constitution, the

Courts, and Land-Use Regulation (1997)...............................................

16

Clint Bolick, Grassroots Tyranny: The Limits of Federalism

(1993) ......................................................................................................

14

Clint Bolick, Davids Hammer: The Case for an Activist

Judiciary (2007) ......................................................................................

14, 16

Congressional Research Service, Mary Tieman & Adam Vann,

Hydraulic Fracturing and Safe Drinking Water Act Issues (2013)........

David B. Spence, Backyard Politics, National Policies:

Understanding the Opportunity Costs of National Fracking Bans,
30 Yale J. on Reg. Online 30 (2013) ......................................................

Declaration of Independence, 1 Stat. 1 (July 4, 1776) ...........................

Developments in the Law The Interpretation of State

Constitutional Rights, 95 Harv. L. Rev. 1324 (1982) .............................

78

Discourses on Davila, in 6 The Works of John Adams 280

(Charles Francis Adams ed., 1851) .........................................................

10

The Federalist Papers, The Federalist No. 10 (Madison) (Clinton

Rossiter ed., 1961) ..................................................................................

13, 14

The Federalist Papers, The Federalist No. 78 (Hamilton) (Clinton

Rossiter ed., 1961) ..................................................................................

15, 16

The Federalist Papers, The Federalist No. 85 (Hamilton) (Clinton

Rossiter ed., 1961) ..................................................................................

Food & Water Watch, The Social Costs of FrackingA

Pennsylvania Case Study (Sept. 2013) ...................................................

James W. Ely, Jr., The Guardian of Every Other Right: A

Constitutional History of Property Rights (2d ed. 1998) ....................... 6, 9, 10, 11
vii

James Madison, Property, Natl Gazette (Mar. 27, 1792),

reprinted in, 1 The Founders Constitution (P. Kurland and R.
Lerner eds. 1987) ....................................................................................

16

John Locke, Second Treatise of Government (1690) (C. B.

Macpherson ed., 1980) ............................................................................

7, 8

Justice William J. Brennan, Jr., Speech given at the Text and

Teaching Symposium, Georgetown University (October 12, 1985)
reprinted at
http://www.pbs.org/wnet/supremecourt/democracy/sources_docu
ment7.html (last checked March 4, 2015) ..............................................

1314

Longmont Charter, Article XVI ............................................................. 4, 8, 17, 18

Mark L. Pollot, Grand Theft and Petit Larceny: Property Rights
in America (1993) ...................................................................................

16

Magna Carta, Chapter 39 (1215) ............................................................

Magna Carta, Chapter 29 (1225) ............................................................

Richard A. Epstein, Takings: Private Property and the Power of

Eminent Domain (1985) ..........................................................................

16

Richard A. Epstein, The Ebbs and Flows in Takings Law:

Reflections on the Lake Tahoe Case, 2002 Cato Sup. Ct. Rev. 5
(2002) ......................................................................................................

Sir William Blackstone, The Commentaries Of Sir William

Blackstone, Knight, On The Laws And Constitution Of England
(ABA ed. 2009) .......................................................................................

7, 14

Terry W. Roberson, The State of Texas Versus the EPA

Regulation of Hydraulic Fracturing, Houston Lawyer
(March/April 2011) .................................................................................

viii

Willi Paul Adams, The First American Constitutions: Republican

Ideology and the Making of the State Constitutions in the
Revolutionary Era (University of North Carolina Press 1980) ..............

William Penn, The Excellent Privilege of Liberty and Property

Being the Birth-Right of the Free-Born Subjects of England
(1687) reprinted in, 1 The Founders Constitution (P. Kurland and
R. Lerner eds. 1987) ................................................................................

ix

STATEMENT OF THE ISSUE

Whether the district court properly invalidated Article XVI of the Longmont
Charter on preemption grounds because it causes waste and destroys property
rights by effectively prohibiting the extraction of oil and gas.
IDENTITY AND INTEREST OF AMICUS CURIAE
Mountain States Legal Foundation (MSLF) is a nonprofit, public-interest
legal foundation organized under the laws of the State of Colorado. MSLF is
dedicated to bringing before the courts those issues vital to the defense and
preservation of individual liberty, the right to own and use property, the free
enterprise system, and limited and ethical government. Since its creation in 1977,
MSLF and its attorneys have actively participated in litigation to protect property,
including the right to develop mineral estates. See e.g., Marvin M. Brandt
Revocable Trust v. United States, 134 S. Ct. 1257 (2014); Minard Run Oil Co. v.
U.S. Forest Serv., 670 F.3d 236 (3d Cir. 2011), as amended (Mar. 7, 2012); Miller
Bros. v. Dept of Natural Res., 513 N.W.2d 217 (Mich. App. 1994); Bd. of Cnty.
Commrs, La Plata Cnty. v. Bowen/Edwards Associates, Inc., 830 P.2d 1045 (Colo.
1992) (en banc). MSLF attorneys are also representing mineral owners in
challenges to restrictions placed on their ability to develop their oil and gas estates
because of the speculative fear and hysteria regarding hydraulic fracturing. See
1

e.g., Vermillion v. Mora County, New Mexico, No. 1:13-cv-01095 CEG/GBW (D.
N.M. filed Nov. 11 2013); Joint Landowners Coalition of New York, Inc. v.
Cuomo, Index No. 843-2014 (N.Y. Sup. Ct., Albany County) (appeal filed July 25,
2014). The use of this demonstrably safe completion operation unlocks vast
reserves of oil and gas that would be otherwise unrecoverable, thereby lowering
energy costs to the benefit of local residents and communities, as well as the states
and the Nation.
As fully demonstrated below, the principle function of government is to
protect property, which is essential to individual liberty. The greatest threat to
property is oppressive factions, especially those operating at the local level. It is
the responsibility of the judiciary to protect property from these factions. MSLF
submits that these tenets will assist this Court in resolving this appeal.
STATEMENT OF THE CASE
Various methods of fracturing rock formations to facilitate oil and gas
production have been utilized since 1859, when the first commercial well was
drilled in the United States. Alex Ritchie, On Local Fracking Bans: Policy and
Preemption in New Mexico, 54 Nat. Resources J. 255, 260 and n. 32 (2014).
Hydraulic fracturing, meaning the use of water to fracture rock formations to
produce oil and gas, was first tested in 1903 and first used commercially in 1948.

Id. at 260. In the last 60 years, more than 1 million [oil and gas] wells have been
hydraulically fractured.1 Terry W. Roberson, The State of Texas Versus the EPA
Regulation of Hydraulic Fracturing, Houston Lawyer, at 24 (March/April 2011).
Today, more than 90 percent of all new natural gas wells depend on hydraulic
fracturing to be successful. CRS, Hydraulic Fracturing, supra, at 2. Without
hydraulic fracturing operations, significant amounts of hydrocarbon resources
would be left in the ground as unrecoverable. Allan Ingelson & Tina Hunter, A
Regulatory Comparison of Hydraulic Fracturing Fluid Disclosure Regimes in the
United States, Canada, and Australia, 54 Nat. Resources J. 217, 221 (2014).
Moreover, the combination of hydraulic fracturing and recent advances in
horizontal drilling technology has transformed American energy markets by
enabling the economical production of natural gas from shale formations; thereby,
sharply increasing the domestic supply of this clean-burning energy source, and
driving prices to record lows.2 CRS, Hydraulic Fracturing, supra, at 3.

Hydraulic fracturing is also used in drinking water and geothermal wells.

Congressional Research Service, Mary Tieman & Adam Vann, Hydraulic
Fracturing and Safe Drinking Water Act Issues, 1 n.1 (2013) (hereinafter CRS,
Hydraulic Fracturing).
2
Natural gas-fired power plants emit about half the carbon dioxide emitted by
coal-fired plants on a per-BTU basis. See David B. Spence, Backyard Politics,
National Policies: Understanding the Opportunity Costs of National Fracking
Bans, 30 Yale J. on Reg. Online 30, 32 (2013).
3

While some predict that hydraulic fracturing will provide energy security,
others seek to prevent the practice and use scare tactics to achieve their irrational
and selfish goal. Alex Ritchie, Creatures Of Circumstance: Conflicts Over Local
Government Regulation Of Oil And Gas, 60 RMMLF-INST 11-1, 11-4 (2014)
(noting that some opponents have maintained that hydraulic fracturing causes
promiscuity and drug addiction. (citing Food & Water Watch, The Social Costs
of FrackingA Pennsylvania Case Study, at 34 (Sept. 2013))). Perhaps
influenced by this sky-is-falling rhetoric, the voters of Longmont added Article
XVI to the Longmont Charter, which completely and permanently bans all
hydraulic fracturing operations within the City. R. CF. p. 2039. Because the ban
causes waste and violates property rights, the Colorado Oil and Gas Association
and TOP Operating Company challenged the ban on preemption grounds. Id. at
236267.
The district court held Article XVI invalid as preempted by the Oil and Gas
Conservation Act (OGCA), C.R.S. 34-60-101 to 130. The district court based
its holding upon the preemption principles established by the Colorado Supreme
Court in Voss v. Lundvall Bros., 830 P.2d 1061 (Colo. 1992) (en banc) and other
decisions. R. CF. pp. 204854. This appeal followed.

SUMMARY OF THE ARGUMENT

The right to own and use property existed before the creation of
governments. In fact, people formed governments for the protection of their
property, which is essential to liberty. The biggest threat to property and liberty
are oppressive factions (i.e., todays special interest groups), particularly those
operating at the local level. The judiciary is responsible for protecting property
and liberty from these oppressive factions.
Hydraulic fracturing is a demonstrably safe and necessary completion
operation. Longmonts ban causes waste and violates property rights, including
the correlative rights of those who own the rights to the oil and gas underlying
Longmont and the surrounding areas. Applying well-established legal principles,
the district court correctly held that Longmonts ban on hydraulic fracturing was
preempted by the OGCA. As demonstrated below, this Court should affirm.
ARGUMENT
I.

THE PRINCIPLE FUNCTION OF GOVERNMENT IS TO PROTECT

PROPERTY.
The sanctity of property in America can be traced to the Magna Carta.

Bernard H. Siegan, Economic Liberties and the Constitution 157 (2d ed. 2006).
Chapter 39 of the Magna Carta (1215) provides: [n]o freeman shall be taken or
imprisoned, or disseised unless by the lawful judgment of his peers, or by the
5

law of the land. Chapter 29 of the 1225 charter broadened and replaced
Chapter 39 of the original charter: No freeman shall be taken or imprisoned, or
disseised of his freehold, or liberties but by lawful judgment of his peers, or by
the law of the land . Siegan, Economic Liberties, supra, at 7 (quoting Magna
Carta (1225)). Thus, the Magna Carta secured private property against arbitrary
deprivations by the government.3 James W. Ely, Jr., The Guardian of Every Other
Right: A Constitutional History of Property Rights 13 (2d ed. 1998).
Importantly, early American colonists believed the right to property,
guaranteed in the Magna Carta, to be part of their birthright as English subjects.
Id.; Siegan, Economic Liberties, supra, at 7. For example, in 1687, William Penn
proclaimed:
It may reasonably be supposed that we shall find in this part of the
world, many men, both old and young, that are strangers, in a great
measure, to the true understanding of that inestimable inheritance that
every Free-born Subject of England is heir unto by Birth-right, I mean
that unparalleled privilege of Liberty and Property . . . in pursuance of
which I do here present thee with that ancient garland, the
fundamental laws of England, bedecked with many precious
3

The phrase by the law of the land, used in the Magna Carta, is now known as
due process of law. Bank of Columbia v. Okely, 17 U.S. 235, 244 (1819) (The
words by the law of the land are intended to secure the individual from the
arbitrary exercise of the powers of government, unrestrained by the established
principles of private rights and distributive justice.); Murray v. Hoboken Land &
Imp. Co., 59 U.S. 272, 276 (1855) (The words, due process of law, were
undoubtedly intended to convey the same meaning as the words, by the law of the
land, in Magna Charta [sic].).
6

privileges of Liberty and Property by which every man that is a

Subject to the Crown of England, may understand what is his right,
and how to preserve it from unjust and unreasonable men .
William Penn, The Excellent Privilege of Liberty and Property Being the BirthRight of the Free-Born Subjects of England (1687) (emphasis in original),
reprinted in, 1 The Founders Constitution 43132 (P. Kurland and R. Lerner eds.
1987). Around this time, John Locke published his famous Second Treatise of
Government, in which he explained that private property existed under natural law
before the creation of governments. John Locke, Second Treatise of Government,
2551 (1690) (C. B. Macpherson ed., 1980); see also Sir William Blackstone,
The Commentaries Of Sir William Blackstone, Knight, On The Laws And
Constitution Of England 9 (ABA ed. 2009) (identifying the absolute rights of the
individual as the right of personal security, the right of personal liberty, and the
right of private property). Because private property existed before government,
any legitimate government is based on a compact whereby people gave their
allegiance to the government in exchange for the protection of their property.
Locke, Second Treatise, supra, 123131; see COLO. CONST. art II, 3.4
4

Colorados inalienable rights clause, COLO. CONST. art II, 3, like similar
provisions in other state constitutions provide[s] textual evidence of an intent on
the part of the constitutional ratifiers to afford substantive protection against the
power of the state to impair economic interests. Developments in the Law The
Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1480 and n.
7

Because of this compact, the major purpose of government is to protect property,

which Locke equated to preservation of liberty. Id. 124 (The great and chief
end therefore, of mens uniting into common-wealths, and putting themselves
under government, is the preservation of their property. (emphasis in original));
id. 123 (Men are willing to join in society with others, who are already united,
or have a mind to unite for the mutual preservation of their lives, liberties and
estates, which I call by the general name, property. (emphasis in original)).
The influence of Locke on the Framers of the Constitution cannot be
understated. See Richard A. Epstein, The Ebbs and Flows in Takings Law:
Reflections on the Lake Tahoe Case, 2002 Cato Sup. Ct. Rev. 5 (2002) (The
Framers recognized that principles of good government started with the protection
105 (1982) (emphasis added). In other words, the ratifiers did not intend for the
clause to be used as a sword by private parties to summarily extinguish the
inalienable rights of their neighbors. See Opening Brief of Appellants-Intervenors
at 1622 (attempting to justify Longmonts ban on Colo. Const. art II, 3).
Instead, nuisance law (with its concomitant evidentiary requirements) is designed
to resolve these types of private disputes. It goes without saying that the purported
findings in Article XVI of the Longmont City Charter do not constitute credible
evidence of nuisance. See Lucas v. S. Carolina Coastal Council, 505 U.S. 1003,
1031 (1992) (We emphasize that to win its case South Carolina must do more
than proffer the legislatures declaration that the uses Lucas desires are inconsistent
with the public interest, or the conclusory assertion that they violate a common-law
maxim such as sic utere tuo ut alienum non laedas. As we have said, a State, by
ipse dixit, may not transform private property into public property without
compensation.... (quoting Webbs Fabulous Pharmacies, Inc. v. Beckwith, 449
U.S. 155, 164 (1980)).
8

of private property . . . .). For example, Thomas Jefferson incorporated Lockes

principles into the Declaration of Independence:
WE hold these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty and the Pursuit of
Happiness.
1 Stat. 1 (July 4, 1776).5 Also taking a page from Locke, John Rutledge of South
Carolina told the delegates at the Philadelphia Convention that [p]roperty was
certainly the principal object of Society. Ely, The Guardian, supra, at 43 (quoting
1 The Records of the Federal Convention of 1787, 534 (Max Farrand ed. 1937)).
Alexander Hamilton also believed that [o]ne great objt. of Govt. is personal
protection and the security of Property. Id. (quoting 1 The Records of the Federal
Convention, supra, at 302); see also The Federalist Papers, Federalist No. 85, 520
(Hamilton) (Clinton Rossiter ed., 1961)6 (expounding that the adoption of the
Constitution would provide additional securit[y] . . . to liberty, and to property).

Although Jefferson substituted Pursuit of Happiness for estates, this change

should not be interpreted as lessening the importance of property rights. In fact,
the acquisition of property and the pursuit of happiness were so closely
connected with each other in the minds of the founding generation that naming
only one of the two sufficed to evoke both. Ely, The Guardian, supra, at 29
(quoting Willi Paul Adams, The First American Constitutions: Republican
Ideology and the Making of the State Constitutions in the Revolutionary Era
(University of North Carolina Press 1980)).
6
All later citations to these papers are to this edition of The Federalist Papers.
9

Thus, the principle function of government is to ensure the sanctity of private

property. See Wilkinson v. Leland, 27 U.S. 627, 657 (1829) (The fundamental
maxims of a free government seem to require, that the rights of personal liberty
and private property should be held sacred.); Monongahela Navigation Co. v.
United States, 148 U.S. 312, 324 (1893) ([I]n any society the fullness and
sufficiency of the securities which surround the individual in the use and
enjoyment of his property constitute one of the most certain tests of the character
and value of the government.).
II.

PROPERTY IS ESSENTIAL TO LIBERTY.

In 1790, John Adams declared: [p]roperty must be secured or liberty

cannot exist. Ely, The Guardian, supra, at 43 (quoting Discourses on Davila, in 6

The Works of John Adams 280 (Charles Francis Adams ed., 1851)). The next year,
the Fifth Amendment took effect and expressly incorporated into the Constitution
Adams belief that property is fundamental to liberty. As finally adopted:
[T]he Fifth Amendment contains two important property guarantees,
along with procedural safeguards governing criminal trials. The
amendment provides in part that no person shall be deprived of life,
liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation.
Madisons decision to place this language next to criminal justice
protections, such as the prohibitions against double jeopardy and selfincrimination, underscored the close association of property rights
with personal liberty. Individuals needed security against both
arbitrary punishment and deprivation of property.
10

Ely, The Guardian, supra, at 54 (emphasis added) (quoting U.S. CONST. amend.
V).
For over 200 years, it has been consistently recognized that private property
is essential to liberty and a free society. For example, in 1897, the Supreme Court
declared:
Due protection of the rights of property has been regarded as a vital
principle of republican institutions. Next in degree to the right of
personal liberty ... is that of enjoying private property without undue
interference or molestation. The requirement that the property shall
not be taken for public use without just compensation is but an
affirmance of a great doctrine established by the common law for the
protection of private property. It is founded in natural equity, and is
laid down as a principle of universal law. Indeed, in a free
government, almost all other rights would become worthless if the
government possessed an uncontrollable power over the private
fortune of every citizen.
Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 235236 (1897)
(citations omitted) (emphasis added). Seventy-five years later, the Court again
recognized the interdependence between property and liberty:
[T]he dichotomy between personal liberties and property rights is a
false one. Property does not have rights. People have rights. The
right to enjoy property without unlawful deprivation, no less than the
right to speak or the right to travel, is in truth, a personal right . In
fact, a fundamental interdependence exists between the personal right
to liberty and the personal right in property. Neither could have
meaning without the other. That rights in property are basic civil
rights has long been recognized.

11

Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972) (citations omitted)
(emphasis added);7 see United States v. James Daniel Good Real Prop., 510 U.S.
43, 61 (1993) (Individual freedom finds tangible expression in property rights.).
Accordingly, because property is essential to liberty, both property and
liberty are entitled to the same level of protection. Indeed, the same right to due
process of law exists whether a person is being deprived of either property or
liberty. U.S. CONST. amend. XIV; COLO. CONST. art II, 25; see United States v.
Carlton, 512 U.S. 26, 41 (1994) (Scalia, J., concurring) (The picking and
choosing among various rights to be accorded substantive due process protection
is alone enough to arouse suspicion; but the categorical and inexplicable exclusion
of so-called economic rights (even though the Due Process Clause explicitly
applies to property) unquestionably involves policymaking rather than neutral
legal analysis.).

By eliminating the perceived dichotomy between liberty and property and by

recognizing property as basic civil right[,] the Court rejected the idea that
property was somehow an inferior right, as suggested in United States v. Carolene
Products Co., 304 U.S. 144, 152 n.4 (1938). See Dolan v. City of Tigard, 512 U.S.
374, 392 (1994) (We see no reason why the Takings Clause of the Fifth
Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth
Amendment, should be relegated to the status of a poor relation .).
12

III.

THE JUDICIARY IS RESPONSIBLE FOR PROTECTING

PROPERTY FROM OPPRESSIVE FACTIONS.
The Framers recognized the grave threat that factions pose to property and

liberty. The Federalist No. 10, supra, at 7784 (Madison). Madison characterized
these factions as:
[A] number of citizens, whether amounting to a majority or a minority
of the whole, who are united and actuated by some common impulse
of passion, or of interest, adverse to the rights of other citizens, or to
the permanent and aggregate interests of the community.
Id. at 78. In other words, Madison anticipated todays special interests groups who
seek to trample on property rights and, thereby, destroy liberty.8

That these special interest groups may garner a majority of the votes is of no
moment because property and liberty are paramount in this country. See Bernard
H. Siegan, Majorities May Limit the Peoples Liberties Only When Authorized To
Do So by the Constitution, 27 San Diego L. Rev. 309, 349 (1990) (The
Constitution did not establish majority rule; it created a unique system wherein
individual liberty often is immune from majority will.). Indeed, the Framers
insulated property and liberty from the whims of the majority:
The very purpose of a Bill of Rights was to withdraw certain subjects
from the vicissitudes of political controversy, to place them beyond
the reach of majorities and officials and to establish them as legal
principles to be applied by the courts. Ones right to life, liberty, and
property may not be submitted to vote; they depend on the
outcome of no elections.
W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (emphasis
added); see Justice William J. Brennan, Jr., Speech given at the Text and Teaching
Symposium, Georgetown University (October 12, 1985) (It is the very purpose of
13

Madison also recognized that the greatest threat to property and liberty from
factions is at the local level:
The smaller the society, the fewer probably will be the distinct parties
and interests composing it; the fewer the distinct parties and interests,
the more frequently will a majority be found of the same party; and
the smaller the number of individuals composing a majority, and the
smaller the compass within which they are placed, the more easily will
they concert and execute their plans of oppression. Extend the
sphere, and you take in a greater variety of parties and interests; you
make it less probable that a majority of the whole will have a common
motive to invade the rights of other citizens; or if such a common
motive exists, it will be more difficult for all who feel it to discover
their own strength and to act in unison with each other.
The Federalist No. 10, supra, at 83 (Madison) (emphasis added); see generally,
Clint Bolick, Grassroots Tyranny: The Limits of Federalism 7692 (1993)
(demonstrating that, despite the enormous size of the national government, local
governments pose the biggest threat to property and liberty).
To counteract this threat to property and liberty, the Framers separated the
governments powers into three co-equal branches, and intended for the judiciary
to be the ultimate protector of property and liberty. United States v. Lee, 106 U.S.
196, 21820 (1882); Clint Bolick, Davids Hammer: The Case for an Activist
Judiciary 3547 (2007); see Blackstone, Commentaries, supra, at 12 (noting that
a Constitutionand particularly of the Bill of Rightsto declare certain values
transcendent, beyond the reach of temporary political majorities. (reprinted at
http://www.pbs.org/wnet/supremecourt/democracy/sources_document7.html (last
viewed March 4, 2015) (emphasis added)).
14

one who is wrongly deprived of property or liberty should first seek redress from
the judiciary before petitioning the king or parliament). For example, Hamilton
explained that it is the duty of the judiciary to declare all acts contrary to the
manifest tenor of the Constitution void. Without this, all the reservations of
particular rights or privileges would amount to nothing. The Federalist No. 78,
supra, at 466 (Hamilton); accord Marbury v. Madison, 5 U.S. 137, 177 (1803) (It
is emphatically the province and duty of the judicial department to say what the
law is and to declare that a law repugnant to the [C]onstitution, is void.): Bd. of
Cnty. Commrs v. Vail Associates, Inc., 19 P.3d 1263, 1272 (Colo. 2001).
Hamilton also explained that the judiciary is responsible for protecting property
from oppressive factions:
This independence of the judges is equally requisite to guard the
Constitution and the rights of individuals from the effects of those ill
humors, which the arts of designing men, or the influence of particular
conjunctures, sometimes disseminate among the people themselves,
and which, though they speedily give place to better information, and
more deliberate reflection, have a tendency, in the meantime, to
occasion dangerous innovations in the government, and serious
oppressions of the minor party in the community.
But it is not with a view to infractions of the Constitution only, that
the independence of the judges may be an essential safeguard against
the effects of occasional ill humors in the society. These sometimes
extend no farther than to the injury of the private rights of particular
classes of citizens, by unjust and partial laws. Here also the firmness
of the judicial magistracy is of vast importance in mitigating the
severity and confining the operation of such laws.
15

The Federalist No. 78, supra, at 46970 (Hamilton) (emphasis added); see also
Bolick, Davids Hammer, supra, at 15764. In short, only if the judiciary fulfills
its duty, will property and liberty be secure. See Mark L. Pollot, Grand Theft and
Petit Larceny: Property Rights in America 5666 (1993); Bernard H. Siegan,
Property and Freedom: The Constitution, the Courts, and Land-Use Regulation
4774 (1997).
IV.

ARTICLE XVI OF THE LONGMONT CHARTER CAUSES WASTE

AND EVISCERATES PROPERTY RIGHTS IN DIRECT
CONTRAVENTION OF THE OGCA.
It is well recognized that property constitutes more than permanent physical

objects. Instead, property refers to the all the rights over a particular thing that the
owner of that property enjoys against the world. James Madison, Property, Natl
Gazette (Mar. 27, 1792), reprinted in, 1 The Founders Constitution, supra, at
59899; United States v. Gen. Motors Corp., 323 U.S. 373, 378 (1945). Thus, the
ordinary conception of property embraces far more than the right to naked
possession: it embraces the right to use property. Richard A. Epstein, Takings:
Private Property and the Power of Eminent Domain 5860 (1985); Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 43536 (1982).
Colorado recognizes a mineral estate as an interest in real property,
severable from the surface estate. Mitchell v. Espinosa, 243 P.2d 412, 41617
16

(Colo. 1952) (en banc). The mineral estate includes the oil and gas estate, which
can be conveyed, leased, or reserved. See Simson v. Langholf, 293 P.2d 302, 306
07 (Colo. 1956) (en banc). The essential stick in the bundle of rights making up
the oil and gas estate is the right to extract the oil and gas. Rocky Mountain Fuel
Co. v. Heflin, 366 P.2d 577, 580 (Colo. 1962) (the owner of the oil and gas estate
owns the right to prospect for and carry on all necessary operations for the
production of oil and gas.); Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913,
926 (Colo. 1997) (en banc) (Severed mineral rights lack value unless they can be
developed.); SWEPI, LP v. Mora County, NM, No. CIV 14-0035 JB/SCY, 2015
WL 365923, *60 (D.N.M. Jan. 19, 2015) (the right to oil and gas consists of the
right to extract it.); cf. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414
(1922) (For practical purposes, the right to coal consists in the right to mine it.)
(quotations omitted).
As acknowledged by the district court, [h]ydraulic fracturing is now
standard for virtually all oil and gas wells in our state and across much of the
country. R. CF. p. 2039 (quotation omitted); id. (Most of the hydrocarbon
bearing formations in Colorado would not produce economic quantities of
hydrocarbons without hydraulic fracturing.) (quotation omitted). Thus, by
banning hydraulic fracturing, Longmont has effectively prevented the extraction of

17

otherwise recoverable oil and gas resources and, thereby, causes waste. C.R.S.
34-60-103(11) to (13); R. CF. p. 2052 (district court finding that Longmonts
ban causes waste. Mineral deposits are being left in the ground by all the
wells that are not being drilled due to the frac[turing] ban.). It also eviscerates the
property rights of those owning interests (royalty and working) in the oil and gas
underlying the City and surrounding areas. C.R.S. 34-60-102(1)(a)(III) (purpose
of the OGCA is to protect, and enforce the coequal and correlative rights of
owners and producers in a common source or pool of oil and gas); R. CF p. 2048
49 (district court finding that Longmonts ban has an extraterritorial effect because
oil and gas reserves do not recognize political boundaries); R. CF. p. 2052 (district
court finding that Longmonts ban impairs the correlative rights of owners.);
see Miller Bros, 513 N.W.2d at 220 (ban on drilling effectuated a taking).
Accordingly, the district court correctly held that Article XVI of the Longmont
Charter is preempted by the OGCA. R. CF. p. 2054; see SWEPI, 2015 WL
365923, at *10005 (local ordinance that banned oil and gas extraction activities
preempted by New Mexico state law because it caused waste and violated
correlative rights); Energy Mgmt. Corp. v. City of Shreveport, 397 F.3d 297, 302

18

05 (5th Cir. 2005) (local ban on drilling preempted by state law). This Court
should affirm the district courts well-supported and well-reasoned holding.9
CONCLUSION
Based upon the foregoing, the judgment of the district court should be
affirmed.
DATED this 5th day of March 2015.
Respectfully submitted,
s/ Steven J. Lechner
Steven J. Lechner (#19853)
Jaimie Cavanaugh (#44639)
Mountain States Legal Foundation
2596 South Lewis Way
Lakewood, Colorado 80227
(303) 292-2021
(303) 292-1980 (facsimile)
lechner@mountainstateslegal.com
jcavanaugh@mountainstateslegal.com
Attorneys for Amicus Curiae
Mountain States Legal Foundation

Affirming the district court will not infringe any rights of Longmont or its
residents who may oppose hydraulic fracturing. They could attempt to assuage
their speculative fears the constitutional wayby exercising the power of eminent
domain and paying just compensation. See Armstrong v. United States, 364 U.S.
40, 49 (1960) (The Takings Clause was designed to bar Government from forcing
some people alone to bear public burdens which, in all fairness and justice, should
be borne by the public as a whole.).
19

CERTIFICATE OF SERVICE
I certify that on the 5th day of March 2015, the foregoing document was
filed with the Court of Appeals and true and accurate copies of the same were
served on the following counsel of record via the Integrated Colorado Courts EFiling System:
T. Eugene Mai, City Attorney
Daniel E. Kramer, Assistant City Attorney
City of Longmont, Civic Center Complex
408 3rd Avenue
Longmont, Colorado 80501
Phillip D. Barber, Esq.
1675 Larimer Street, Suite 620
Denver, Colorado 80202
Attorneys for City of Longmont
Mark J. Mathews
Michael D. Hoke
Wayne F. Forman
Brownstein Hyatt Farber Schreck, LLP
410 17th Street, Suite 2200
Denver, Colorado 80202-4432
Karen L. Spaulding
Beatty & Wozniak, P.C.
216 16th Street, Suite 1100
Denver, CO 80202
Attorneys for Colorado Oil & Gas Association

20

Thomas J. Kimmell
Zarlengo & Kimmell, P.C.
1775 Sherman Street, Suite 1375
Denver, Colorado 80203
Attorney for TOP Operating Company
Kevin Lynch
Brad Arthur Bartlett
Environmental Law Clinic
University of Denver Sturm College of Law
2255 E. Evans Avenue, Suite 335
Denver, Colorado 80208
Attorneys for Citizen Intervenors Our Health, Our Future, Our Longmont;
Sierra Club; and Food and Water Watch and Earthworks
Eric Huber
Sierra Club
1650 38th Street, Suite 102W
Boulder, Colorado 80301
Attorney for Sierra Club and Earthworks
Jake Matter, Assistant Attorney General
Julie M. Murphy
Christopher K. Boeckx
Ralph L. Carr, Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, Colorado 80203
Attorneys for Colorado Oil & Gas Conservation Commission
Rachel Lee Allen
Geoffrey T. Wilson
Colorado Municipal League
1144 Sherman Street
Denver, Colorado 80203
Attorneys for Colorado Municipal League

21

Thomas A. Carr
Office of the City Attorney
P.O. Box 791
Boulder, Colorado 80306
Attorney for City of Boulder
Jeffrey P. Robbins
Goldman, Robbins & Nicholson, P.C.
679 E. 2nd Avenue, Suite C
P.O. Box 2270
Durango, Colorado 81302
Attorney for Board of County Commissioners of County of Boulder, State of
Colorado
s/ Steven J. Lechner
Steven J. Lechner (#19853)

22