DATE FILED: January 15, 2015 2:29 PM

Colorado Court of Appeals

2 East 14th Street Denver, CO 80203
Boulder County
2013 CV 63
Plaintiff-Appellee:
Colorado Oil & Gas Association
v.
Defendant-Appellant
City of Longmont, Colorado,
and
Intervenors-Appellants:
Our Health Our Future Longmont, Food and
Water Watch, Earthworks and The Sierra Club,
and
COURT USE ONLY
Intervenor-Appellee:
Top Operating Company,
Appellee:
Court of Appeals Case Number:
Colorado Oil and Gas Conservation
2014CA1759
Commission
City of Boulders Attorneys Name:
Office of the City Attorney
Thomas A. Carr
Address:
P.O. Box 791
Boulder, CO 80306
Phone Number: (303) 441-3020
Fax Number:
(303) 441-3859
E-mail: carrt@bouldercolorado.gov
Atty. Reg. #: 42170
BRIEF OF CITY OF BOULDER AS AMICUS CURIAE IN SUPPORT OF
THE DEFENDANT-APPELLANT CITY OF LONGMONT

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:
This brief contains 1,669 words.
This Brief complies with C.A.R. 28(k) because it contains under a separate
heading: (1) a concise statement of the applicable standard of appellate review with
citation to authority; and (2) no citations to the precise location in the record are
necessary since the issues raised and ruled on did not involve the (i) admission or
exclusion of evidence, (ii) giving or refusing to give a jury instruction, or (iii) any
other act or ruling which required the City to make an objection or perform some
other act to preserve appellate review.
Respectfully submitted this 15th day of January, 2015.
CITY OF BOULDER
OFFICE OF THE CITY ATTORNEY
/s/ signature on file
Thomas A. Carr, #42170
Attorney for Amicus Curiae,
City of Boulder

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TABLE OF CONTENTS
CERTIFICATE OF COMPLIANCE ......................................................................... ii
TABLE OF AUTHORITIES .................................................................................... iv
STATEMENT OF ISSUES PRESENTED FOR REVIEW ...................................... 1
STATEMENT OF THE CASE AND STANDARD OF REVIEW .......................... 1
INTRODUCTION AND INTEREST OF AMICUS CURIAE CITY OF
BOULDER ................................................................................................................. 1
ARGUMENT ............................................................................................................. 4
The Trial Court Ignored the Home Rule Provisions of the Colorado
Constitution...................................................................................................... 4
CONCLUSION .......................................................................................................... 8

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TABLE OF AUTHORITIES
CASES
City & Cnty. of Denver v. State,
788 P.2d 764, 767 (Colo. 1990) .............................................................................5
DeLong v. Denver,
576 P.2d 537 (1978) ...............................................................................................4
Denver & Rio Grande W. R. Co. v. City & County of Denver,
673 P.2d 354, 357-58 (Colo. 1983)........................................................................4
Vela v. People,
484 P.2d 1204 (1971) .............................................................................................4
Voss v. Lundvall Bros., Inc.,
830 P.2d 1061 (Colo. 1992) .......................................................................... 5, 6, 7
STATUTES
Section 9-16-1, B.R.C. 1981 ......................................................................................3
Section 9-6-1(d), B.R.C. 1981 ...................................................................................3
OTHER AUTHORITIES
How Boulder Became America's Startup Capital, Inc. Magazine,
December 2013 ......................................................................................................2
CONSTITUTIONAL PROVISIONS
COLO. CONST., ART. XX, 6 .................................................................................4, 7

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The City of Boulder (City) submits this brief in support of the City of
Longmont. The City of Longmont has more than capably presented the basis for
reversal of the Trial Court in its Opening Brief. The City of Boulder respectfully
submits this brief as amicus curiae to inform the Court of the potential effects of
this decision on health, safety and economic vitality of another home rule city.
STATEMENT OF ISSUES PRESENTED FOR REVIEW
The City adopts and incorporates by reference the statement of the issues
presented for review in the City of Longmonts Opening Brief.
STATEMENT OF THE CASE AND STANDARD OF REVIEW
The City adopts and incorporates by reference the statement of the case in
the City of Longmonts Opening Brief as well as the City of Longmonts statement
regarding the standard of review, which appears in the City of Longmonts
Opening Brief.
INTRODUCTION AND INTEREST OF AMICUS CURIAE
CITY OF BOULDER
The City of Boulder is a Colorado home rule city of approximately 100,000
residents 27 miles northwest of Denver. The City was founded in 1871 and
adopted it home rule charter on October 30, 1917. Boulder is the Boulder County
seat. The City is situated along the front range of the Rocky Mountains. The City

comprises an area of approximately 25 square miles and is surrounded by

approximately 45,000 acres of open space. It is home to the main campus of the
University of Colorado as well as laboratories for the National Institute of
Standards and Testing, the National Oceanic and Atmospheric Administration and
the National Center for Atmospheric Research. Boulder has a diverse economy
driven by its reputation as a one of the most livable cities in the United States.
Boulder hosts campuses of major technology companies, including IBM, Google,
Microsoft and Ball Aerospace. Boulder has become a center for entrepreneurs. A
business magazine provided the following opinion:
Boulder is an entrepreneurial powerhouse like no other. In 2010, the
city had six times more high-tech start-ups per capita than the nation's
average, according to an August 2013 study by the Kauffman
Foundation--and twice as many per capita as runner-up San JoseSunnyvale in California. This vibrant culture has given Boulder a
prosperous economy: Without the help of oil, natural gas, or any
monolithic industry, Boulder County (population 300,000) ranks
among the top 20 most productive metro areas in terms of GDP.
Unemployment is 5.4 percent--almost two points below the national
average and a full point below the Federal Reserve's goal for the
nation. It is the home to a start-up incubator, Techstars, and a healthy
venture capitalist community.
How Boulder Became America's Startup Capital, Inc. Magazine,
December 2013 (retrieved on January 10, 2015) at:
http://www.inc.com/magazine/201312/boulder-colorado-fast-growingbusiness.html.).

Boulders most famous startups include Amgen, Celestial Seasonings,

Alfalfas and Ball Aerospace.
On November 5, 2013, Boulder voters approved a five year moratorium on
applications for drilling permits on Boulder Open Space and on any new City
permits or applications for use review of new mining industry uses involving oil
and gas extraction. City of Boulder Ordinance Number 7915. The City of
Boulders zoning code limits mining industries to only industrial and agricultural
zone districts. Section 9-6-1(d), B.R.C. 1981. The code defines Mining
Industries as a facility or business engaged in the removal of any earth materials,
including those extracted from open mining and oil and natural gas drilling or
production, from places of natural occurrence to surface locations. 9-16-1,
B.R.C. 1981. There are currently no active oil wells in the City of Boulder or on
Boulder Open Space.
Boulders location and careful growth management have produced a city
unique in the country. Boulders civic ethic invokes an active, healthy lifestyle.
This is not just a matter of civic pride it is what drives Boulders economy. Like
many home rule cities in Colorado, the Citys economy is driven by tourism.
Visitors come to Boulder to hike miles of open space trials, to climb the Flatirons,

to bike the Citys multi-use trails or even to compete in one of the Citys world
class athletic events, such as the Bolder/Boulder 10k race.
ARGUMENT
The Trial Court Ignored the Home Rule Provisions of the Colorado
Constitution.
The Trial Courts opinion reads home rule authority out of the Colorado
State Constitution. The Trial Courts decision does not even cite Article XX of the
Colorado Constitution. Home rule cities have a constitutional right to the full
right of self-government in both local and municipal matters. Colo. Const., Art.
XX, 6. The Trial Court addressed the issue in a preemption analysis that did not
give proper deference to home rule powers. A matter does not become one of
statewide concern merely by fiat of the state legislature. The state legislature
cannot legislate in matters that are of uniquely local concern. In matters involving
exclusive local and municipal concern, municipal ordinances supersede conflicting
state statutes. Denver & Rio Grande W. R. Co. v. City & County of Denver, 673
P.2d 354, 357-58 (Colo. 1983); DeLong v. Denver, 576 P.2d 537 (1978); Vela v.
People,484 P.2d 1204 (1971). Additionally, even though the state may be able to
suggest a plausible interest in regulating a matter to the exclusion of a home rule
municipality, such an interest may be insufficient to characterize the matter as
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being even of mixed state and local concern. City & Cnty. of Denver v. State,
788 P.2d 764, 767 (Colo. 1990).
There were material issues of fact that should have precluded summary
judgment. Modern drilling techniques are significantly different than those
addressed by the Supreme Court in the two decisions relied upon by the Trial
Court. Trial Court Order at 3-6, citing County Commrs of La Plata County v.
Bowen/Edwards Assoc. Inc., 830 P.2d 1045 (Colo. 1992) and Voss v. Lundvall
Bros., Inc., 830 P.2d 1061 (Colo. 1992). Horizontal drilling combined with
hydraulic fracturing is a new and untested extraction technique. The Trial Court
admitted that it lacked sufficient evidence to address the safety of these techniques:
The Court is not in a position to agree or disagree with any of these exhibits that
support the Defendants position that hydraulic fracturing causes serious health,
safety, and environmental risks. Trial Court Order at 13. To determine the depth
of the public safety risk, a purely local concern within the city limits of Longmont,
the Trial Court should have denied summary judgment to create a more robust
evidentiary record on the safety issues.
Longmonts fracking ban within its city limits is based on an inherent desire
to protect the health, safety, and welfare of its citizenry, so should be viewed as a
matter of purely local concern. It is a well-established principle of Colorado
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preemption doctrine that in a matter of purely local concern an ordinance of a

home rule city supersedes a conflicting state statute. Voss at 1066. Unlike the
contested regulatory scheme in Bowen/Edwards, Longmonts fracking ban is not in
competition with the states regulatory framework. As a result, traditional conflict
preemption analysis for cases of mixed state and local concern is improper. The
ban does not usurp the states power to regulate the industry nor does it offend the
need for uniform statewide regulations. Longmont is not duplicating the authority
of the state system, which usually breeds confusion and unnecessary expense it is
simply prohibiting the activity. In this case, a home-rule city has used its legislative
authority to prioritize the health, safety, and welfare of its community over oil and
gas development. Inherent rules of democracy support the notion that a home rule
city acting in such a manner should be justified in prioritizing the goals of the
citys development.
Additionally, the technological advances in the oil and gas industry that have
led to an increase in fracking justify a review of whether the pooling nature of oil
and gas, Voss at 1067, is still relevant to efficient oil and gas development. In
Voss, the pooling nature of oil and gas was the primary consideration the court
relied on to hold that the state interest outweighed the local authority in the first
two factors of the preemption analysis. The Trial Court made the same finding in
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the present case for the first factor. However, the Trial Court, in granting summary
judgment, did not allow for a full evidentiary review of whether fracking negates
some of the issues presented by the pooling nature of oil and gas.
Protecting the public safety is the first priority of any municipality. The
simple fact is that the Trial Court chose to ignore detailed affidavits about the risk
associated with this type of drilling. Thus, the Trial Court concluded, that
regardless of the nature and extent of evidence of the risk, a home rule city could
do nothing to protect its residents and visitors. This finding subjects all Colorado
municipalities to the mercy of oil and gas development. A municipalitys desire to
protect the health, safety, and welfare of their community should not be governed
by the pooling nature of oil and gas, Voss at 1067, but by the people of each
city or town, Colo. Const., Art. XX, 6, who duly enacted the protection of a
municipal charter.
Such a construction could be devastating for a city like Boulder. Boulder
thrives because as a home rule city it can control many things about its very nature.
A Boulder with oil wells in open space would not be Boulder. A Boulder with oil
wells on Pearl Street would not be Boulder. This decision elevates one industry,
oil and gas extraction, over all others. If home rule authority means everything it
should mean, that the people of home rule municipality can decide their own
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destiny on matters having a direct effect on their local communities. In this matter
the Trial Court decision ignores home rule authority and gives far too much
deference to the state.
CONCLUSION
The City of Boulder respectfully requests that the Court of Appeals reverse
the decision of the Trial Court.
Respectfully submitted this 15th day of January 2015.
CITY OF BOULDER
OFFICE OF THE CITY ATTORNEY
/s/ signature on file
Thomas A. Carr, #42170
Attorney for Amicus Curiae,
City of Boulder

CERTIFICATE OF SERVICE
I hereby certify that on the 15th day of January 2015, this BRIEF OF CITY
OF BOULDER AS AMICUS CURIAE IN SUPPORT OF THE DEFENDANTAPPELLANT CITY OF LONGMONT was filed with the Colorado Court of
Appeals, and a true and correct copy was served via ICCES upon the following:
T 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
Attorneys for City of Longmont
Brad Arthur Barlett
Kevin Lynch
Environmental Law Clinic
University of Denver Sturm College of Law
2255 E. Evans Avenue
Suite 335
Denver, CO. 80208
Attorney for Citizen Intervenors Our Health, Our Future, Our Longmont; Sierra
Club; Food and Water Watch and Earthworks

Eric Huber
Sierra Club
1650 38th Street
Suite 102W
Boulder, CO
Attorney for Sierra Club and Earthworks
Karen L. Spaulding
Beatty & Wozniak, P.C.
216 Sixteenth Street, Suite 1100
Denver, CO 80202-5115
Mark J. Mathews
Michael D. Hoke
Wayne F. Forman
Brownstein Hyatt Farber Schreck, LLP
410 17th Street, Suite 2200
Denver, CO 80202-4432
Attorneys for Colorado Oil & Gas Association
Jake Matter, Assistant Attorney General
Julie M. Murphy
Ralph L. Carr, Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, CO 80203
Attorneys for Colorado Oil & Gas Conservation Commission
Thomas J. Kimmell
Zarlengo & Kimmell, P.C.
1775 Sherman Street, Suite 1375
Denver, CO 80203
Attorney for Top Operating Company

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Geoffrey T. Wilson
Colorado Municipal League
1144 Sherman Street
Denver, CO 80203
Attorney for Colorado Municipal League

/s/signature on file
Sarah J. Bennett

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