DATE FILED: January 15, 2015 5:16 PM

COLORADO COURT OF APPEALS

2 East 14th Avenue
Denver, CO 80203
___________________________________________
Appeal from Boulder County District Court
The Honorable D.D. Mallard
Case No. 2013 CV 63
________________________________________
Defendant/Appellant:
THE CITY OF LONGMONT
Plaintiffs/Appellees:

COURT USE ONLY

_________________________
Case No.: 2014CA1759

COLORADO OIL AND GAS ASSOCIATION,

COLORADO OIL AND GAS
CONSERVATION COMMISSION, and TOP
OPERATING COMPANY
___________________________________________
Eugene Mei, City Attorney
Attorney Reg. No.: 33442
eugene.mei@ci.longmont.co.us
E-Mail:
Daniel E. Kramer, Assistant City Attorney
Attorney Reg. No.: 43752
E-Mail:
dan.kramer@ci.longmont.co.us
City of Longmont
Civic Center Complex
408 3rd Avenue
Longmont, CO 80501
Telephone: 303-651-8616
Facsimile: 303-651-8914
Phillip D. Barber, Esq.
1675 Larimer Street, Ste. 620
Denver, Colorado 80202
Telephone: (303) 894-0880
Facsimile: (720) 904-5755
E-mail: Phillipbarber@aol.com
Attorney Reg. No.: 9623
OPENING BRIEF OF DEFENDANT-APPELLANT CITY OF LONGMONT

TABLE OF CONTENTS

ISSUES PRESENTED...............................................................................................1
STATEMENT OF THE CASE ..................................................................................2
A. Nature of the Case ............................................................................................2
B. Proceedings Below ...........................................................................................3
C. Disposition Below ............................................................................................5
D. Statement of Facts ............................................................................................6
1. Frackings Risks to the Community ..............................................................8
2. Frackings Alternatives ...............................................................................10
SUMMARY OF ARGUMENT ...............................................................................12
ARGUMENT ...........................................................................................................15
I. The district court erred by disregarding local interests in holding Article
XVI is not within the Citys home rule authority..........................................15
A. The standard of review is de novo, and Article XVI is presumed valid. ...15
B. Discussion ...................................................................................................17
II. The district court applied an improper test for operational conflict..............26
A. The standard of review is de novo. .............................................................26
B. Discussion....................................................................................................26
III.

The City does not forbid what the State authorizes, because no state statute
or regulation explicitly authorizes fracking. ..............................................31

A. The standard of review is de novo. .............................................................31

B. Discussion....................................................................................................32

IV.

The district court improperly resolved disputed issues of material fact at

summary judgment, and did not base its decision on a fully developed
evidentiary record as required by the Supreme Court. ..............................38

A. The standard of review is de novo, and Article XVI is presumed valid. ...38
B. Discussion....................................................................................................39
CONCLUSION ........................................................................................................51

ii

TABLE OF AUTHORITIES
Cases

Alabama Recycling Assn, Inc. v. City of Montgomery,

24 So. 3d 1085, 1090 (Ala. 2009) ............................................................... 33
AviComm, Inc. v. Colorado Pub. Utilities Commn,
955 P.2d 1023, 1031 (Colo. 1998) ......................................................... 48
Bauer v. Waste Mgmt. of Connecticut, Inc.,
662 A.2d 1179, 1188 (Conn. 1995) ............................................................. 33
Baum v. City & Cnty. of Denver,
147 Colo. 104, 111, 363 P.2d 688, 691 (1961)..................... 16, 25, 38, 50
Bd. of Cnty. Commrs of Gunnison Cnty. v. BDS Intl, LLC.,
159 P.3d 773, 778 (Colo. App. 2006)............................................. passim
Bd. of Cnty. Commrs, La Plata Cnty. v. Bowen/Edwards Associates,
Inc., 830 P.2d 1045, 1056-59 (Colo. 1992) .................... passim/Exhibit 1
Bd. of Cnty. Commrs, LaPlata Cnty. v. Colorado Oil & Gas
Conservation Commn,
81 P.3d 1119, 1123 (Colo. App. 2003) ........................................... passim
Churchey v. Adolph Coors Co.,
759 P.2d 1336, 1345 (Colo. 1988) ......................................................... 22
City & Cnty. of Denver v. State,
788 P.2d 764, 767 (Colo. 1990) ..................................... passim/Exhibit 2
City of Claremont v. Kruse,
100 Cal. Rptr. 3d 1, 20-21 (Cal. Ct. App. 2009) ........................................... 33
City of Commerce City v. State,
40 P.3d 1273, 1280 (Colo. 2002) ..................................................... 18, 24
Colorado Min. Assn v. Bd. of Cnty. Commrs of Summit Cnty.,
199 P.3d 718, 737 (Colo. 2009) ..................................................... passim
Condo v. Conners,
266 P.3d 1110, 1114 (Colo. 2011) ......................................................... 23
Jancyn Mfg. Corp. v. Suffolk Cnty.,
518 N.E.2d 903, 907-08 (N.Y. 1987) ..................................................... 33
iii

JJR 1, LLC v. Mt. Crested Butte,

160 P.3d 365, 372 (Colo. App. 2007)..................................................... 16
Kingswood Oil Company v. Corporation Commission,
396 P.2d 1008, 1009-10 (OK 1964) ....................................................... 46
Moore v. City of Boulder,
29 Colo. App. 248, 252, 484 P.2d 134, 136 (1971) .......................... 16, 38
New Mexicans for Free Enter. v. City of Santa Fe,
126 P.3d 1149, 1165-66 (N.M. Ct. App. 2006) ............................................. 33
People ex rel. S.N. v. S.N.,
2014 CO 64, 16 ............................................................................ 38, 43
Rancho Lobo, Ltd. v. Devargas,
303 F.3d 1195 (10th Cir. 2002)................................................. 33, 35, 37
Ray v. City and County of Denver,
109 Colo. 74, 77, 121 P.2d 886, 888 (1942)........................................... 28
Sant v. Stephens,
753 P.2d 752, 756 (Colo. 1988) ............................................................. 32
Shelter Mut. Ins. Co. v. Mid-Century Ins. Co.,
246 P.3d 651, 657 (Colo. 2011) ....................................................... 15, 38
Terry v. City of Portland,
269 P.2d 544, 550-51 (Or. 1954) ................................................................ 33
Town of Frederick v. N. Am. Res. Co.,
60 P.3d 758, 765 (Colo. App. 2002)................................................. 28, 29
Vickery v. Vickery,
271 P.3d 516, 520 (Colo. App. 2010)
revd on other grounds sub nom. Vickery v. Evans,
266 P.3d 390 (Colo. 2011) ............................................................... 26, 31
Voss v. Lundvall Bros.,
830 P.2d 1061 (Colo. 1992) ....................................................... 23, 25, 39
Webb v. City of Black Hawk,
2013 CO 9, 19 .................................................................................... 18

iv

Weisbart v. Agri Tech, Inc.,

22 P.3d 954, 956 (Colo. App. 2001)........................................... 40, 43, 49
Statutes

34-60-102(1)(a)(I) ..................................................................................... 48
34-60-103(13) ........................................................................................... 44
34-60-103(13)(c) ......................................................................................... 46
34-60-103(4) ............................................................................................. 45
34-60-106(2)(b)......................................................................................... 35
Other Authorities

John S. Lowe, Oil & Gas Law in a Nutshell (West 5th Ed. 2009) ...................... 46
Press Release, N.Y. State Dept of Envtl.Conservation, New York State
Department of Health Completes Review of High-volume Hydraulic Fracturing
(Dec. 17, 2014) ........................................................................................ 20
Rules

C.R.C.P 56 ............................................................................. 14, 39, 47, 50

Regulations

Article XVI ....................................................................................... passim

Colo. Code Regs. 404-1:201................................................................... 29
Colo. Code Regs. 404-1:205, :205A, :305.c, :316C, :805 ...................... 36
Constitutional Provisions

Colo. Const. art. XX, 6 .......................................................................... 17

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of
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) in that it contains 9205
words.
The Brief complies with C.A.R. 28(k) because it contains under a
separate heading, a concise statement of the applicable standard of
appellate review with citation to authority; and a citation to the precise
location in the record (R.___, p. ___), not to an entire document, where
the issue was raised and ruled on.
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.
Respectfully submitted,
PHILLIP D. BARBER, P.C.
s/Phillip D. Barber__________________
Phillip D. Barber
Attorney for the Plaintiffs-Appellees
and Cross-Appellants

vi

ISSUES PRESENTED
1.

A home rule citys law supersedes a state law if the local

interests at stake outweigh the States interests. The court below

disregarded the City of Longmonts evidence that the local interests in
this case are strong and outweigh the States interests. Should the
court have considered this evidence and, at summary judgment, viewed
it in the light most favorable to the City?
2.

The test for whether state law preempts a local oil and gas

regulation is the operational conflict test, which asks whether the

local law materially impairs or destroys the States interests. The test
is not whether a local law forbids what the State authorizes. The
district court declared the Citys law was preempted because it said the
City forbids what the State authorizes. Did the court employ an
improper test for preemption?
3.

No Colorado law expressly authorizes fracking. Was the

district court incorrect to hold that Article XVI prohibits what the State
authorizes?

4.

A court must perform the operational conflict test on an ad

hoc basis under a fully developed evidentiary record. Also, a court may
not resolve disputed issues of material fact at summary judgment. The
court below denied the Citys request for an evidentiary hearing. It
found operational conflict at summary judgment only by resolving
disputed issues of material fact against the City. Did the court
improperly apply the C.R.C.P. 56 summary judgment standard, and
should it instead have allowed the City to develop a full evidentiary
record at trial?
STATEMENT OF THE CASE
A.

Nature of the Case

In a 2012 vote, the citizens of Longmont amended the Citys home

rule charter to prohibit an oil and gas operation known as hydraulic
fracturing (fracking) within the Citys boundaries. The Boulder
County District Court overturned the prohibition at summary
judgment, ruling it was preempted by state law. On appeal, the City
asserts that the court analyzed preemption incorrectly and improperly
disregarded material facts. Many of these facts involve intricacies of
2

drilling technology, oil and gas economics, mineral geology, and risks
fracking poses to public health and the environment. But at its core,
this case is as much about the principles of preemption as it is about
minerals or public health.
B.

Proceedings Below

This action began when the Colorado Oil and Gas Association
(Association), a trade association, sued Longmont to overturn Article
XVI of the Longmont Municipal Charter, the citizen-initiated fracking
prohibition. The Association alleged Article XVI is preempted by the
Colorado Oil and Gas Conservation Act (Act), and sought a declaration
to that effect and an injunction against its enforcement. TOP Operating
Company, a local oil and gas operator, intervened as a Plaintiff. The
Colorado Oil and Gas Conservation Commission (Commission), the
state agency charged with implementing the Act, consented to joinder
as a necessary party Plaintiff. Four parties intervened as Defendants:
Our Health, Our Safety, Our Longmont; the Sierra Club; Earthworks;
and Food and Water Watch.

Plaintiffs claimed that Article XVI amounts to a de facto ban on oil

and gas operations, usurps the Commissions authority to regulate
fracking, and is superseded by the Act and the Commissions
regulations. CF, p. 2300, 35-36. The Commission also argued that
Article XVI is preempted by another statute, the Areas and Activities of
State Interest Act. Plaintiffs challenges are facial, based solely on the
language of Article XVI and not on its application to a specific operator
or well. CF, pp. 130 9, 314, 2294-95, 2366-67.
The City filed counterclaims for declaratory judgment, alleging
Article XVI is within the Citys authority, harmonizes with state law
and, in the alternative, supersedes state law as a matter of local
concern.
Originally, the Association filed suit in Weld County District
Court, but that court granted the Citys motion to transfer the case to
the Boulder County District Court.
The latter court set the case for a ten-day evidentiary hearing that
never came to pass. CF, p. 977. The three Plaintiffs quickly filed
motions for summary judgment, the last on April 2, 2014, three weeks
4

before discovery could begin. They supported their motions with

affidavits proclaiming that Article XVI is a de facto ban on all oil and
gas drilling within the City. The City moved for additional time under
C.R.C.P. 56(f) to conduct discovery, to depose the Plaintiffs affiants,
and prepare its evidence and responses to the three motions. CF, pp.
758-68. The court granted the continuance, yet gave the City less time
than requested just five weeks total to complete its discovery before
its responses were due. CF, p. 964. The court also limited what the
City could ask in depositions, narrowing the focus to the Plaintiffs
affidavits. Id.
At oral argument the Plaintiffs reversed course and no longer
take the position that a ban on fracking is a de facto ban on drilling.
CF, p. 2052.
C.

Disposition Below

After briefing and oral argument, the court granted the Plaintiffs
summary judgment motions and vacated the evidentiary hearing. CF,
p. 2054. Although Plaintiffs accepted that Article XVI is not a de facto
ban, the court agreed with their argument that [t]he Commission
5

permits hydraulic fracturing and Longmont prohibits it. CF, p. 2051.

The court called this an obvious operational conflict between state and
local law, preempting Article XVI. Id.
The court rejected the Citys argument that Article XVI is
predominantly a matter of local concern which supersedes state law
under the Colorado Constitution. Finding that the State had at least
some interest in oil and gas production, the court declined to consider
the Citys evidence that Article XVI is predominantly a matter of local
concern. CF, p. 2050. Instead it held that Article XVI is a matter of
mixed state and local concern where state law supersedes a conflicting
local law. Id.
Finally, the court declared Article XVI invalid and enjoined
its enforcement, but stayed the injunction pending appeal. CF, p.
2054.
D.

Statement of Facts

Fracking is a process that has been used in some oil and gas wells
in Colorado only since the 1970s. CF, pp. 1429 10, 1767 at 31-32. It is
a completion process, meaning it comes after drilling a wellbore but
6

before the well produces marketable oil and gas. CF, p. 1765, at 19.
Fracking involves pumping water, sand, and (typically) hazardous
chemicals down a well, under pressure, to widen underground fissures
and purge oil and gas from the mineral formation. CF, pp. 1272-75,
1426-27, 5, 1579.
On November 6, 2012, the citizens of Longmont passed a ballot
measure amending Longmonts home rule charter. Codified as Article
XVI of the charter, the amendment aims to protect Longmonts
residents from harms associated with hydraulic fracturing, including
threats to public health and safety, property damage and diminished
property values, poor air quality, destruction of landscape, and pollution
of drinking and surface water. CF, p. 567. Article XVI prohibits
fracking in the City as well as openly storing or disposing of fracking
wastes. Id.
In response to the Plaintiffs summary judgment motions, the City
presented evidence, including expert testimony, bolstering two main
factual claims: fracking poses serious risks to the local community, and
there are alternatives to fracking.
7

1.

Frackings Risks to the Community

Fracking poses significant risks to the health, safety, and welfare

of the City and its people. See generally CF, pp. 1229-86, 1469-1646,
1655-1707, (over 200 pages of evidence on these risks). Scientific
literature reveals that fracking chemicals end up in the air over half a
mile from a well, causing headaches, dizziness, nausea, memory loss,
respiratory irritation, nosebleeds, and endocrine disruption. CF, pp.
1271-76. Many of these health problems are not expressed until later in
life, long after exposure occurs. CF, p. 1273, 21. Longer term effects
include cancer and exacerbation of chronic diseases including asthma,
chronic obstructive pulmonary disease, and cardiac disease. CF, pp.
1275, 32; see generally CF, pp. 1229-86. Fracking near maternal
homes correlates with babies having low birth weight, smaller skull
circumferences, slower cognitive development, and birth defects. CF,
pp. 1274, 25, 28, 1618-46. Air pollution from volatile organic
compounds near fracking operations is five times the level the U.S.
Environmental Protection Agency says can be harmful. CF. pp. 153438.
8

Fracking operations also cause surface and ground water

pollution, noise, dust, light pollution, an increased risk of hazardous
spills, and according to regulatory agencies in Ohio and Oklahoma
earthquakes. CF, pp. 15 4, 879 n.5, 911 at 56 ll. 18-25, 944 at 185,
946 at 196, 1309-11, 1427 6, 1506-09, 1537, 1578-88, 1655-73, 1800 at
141-42. Six of ten fracked well sites tested in the City have polluted the
surrounding surface and groundwater. CF, pp. 1670-72, 1680-86. One
well, contaminated with more than 100 times the lawful limit for
benzene, sits just a few hundred feet from a middle school. CF, pp.
1683-86. Another well leaked ethylbenzene adjacent to a public
reservoir. CF, pp. 925-26 at 112-13.
Traffic fatalities rise three- to fourfold in a densely fracked area,
as trucks deliver millions of gallons of water and fracking chemicals to
each well. CF, pp. 1284, 1469-84, 1501-04, 1579, 1751 at 67. Oil tanks
catch fire, posing public safety risks and straining a communitys ability
to mitigate those risks. CF, pp.1510-32. Quality of life declines as the
community encounters social disorder associated with the rapid
industrialization. CF, 1469-84. And fracking in an area slashes
9

property values by five to fifteen percent. CF, pp. 1096 12-14; 10941207, 1540-42, 1548-76.
Fracking has ushered in a sea change in oil and gas technology,
enlarging operations and multiplying wells impacts. See CF, p. 878,
1427, 6. Where a well pad once would encompass just one or two
wells, fracking sites now accommodate upwards of sixty wells and
resemble large industrial complexes. CF, pp. 1728-41. Instead of two to
three hundred thousand gallons of fluid, wells are now being fracked
with 7.8 million gallons per well. CF, pp. 1750 at 61-64, 1751 at 67.
Compared to the risks that fracking poses to the community, the
economic benefit of fracking in Longmont is insignificant to either the
City or the State. CF, p. 1214 (extraction taxes represent .06 percent of
Longmonts budget).
2.

Frackings Alternatives

Colorado oil and gas wells prospered for over a century in

Colorado before fracking arrived. CF, p. 1429, 10. Even today,
fracking is unnecessary in the Longmont area. Many producing wells in
Longmont, near Longmont, and elsewhere in Colorado have never been
10

fracked. CF, pp. 1213 9, 1414-23 (Commissions records of some of the

wells that have not been fracked), 1427-30, 7-14.
One process used as a substitute for fracking is underbalanced
drilling. Operators use drilling mud to bring the drill bits cuttings to
the surface. CF, p. 1790 at 34. Common methods of drilling force the
drilling mud into the mineral formation under pressure to prevent the
product from coming to the surface at that time. CF, 1426-27, 5, 1778
at 106, ll. 16-24. Then, operators frack these wells mainly to create
cracks through the drilling mud left in the wellbore. Id.
Underbalanced drilling, on the other hand, reduces or eliminates the
drilling mud and allows a wells natural pressure to produce oil and gas
as it is being drilled. CF, p. 1428, 8. With these reduced pressures,
the drilling mud never damages the wellbore in the first place. Id. In
this way, underbalanced drilling eliminates any need to frack, and also
results in the well producing more oil and gas overall. Id., CF, p. 142829, 9. The operators who swore affidavits for the Plaintiffs admitted
in deposition that they had never tried underbalanced drilling. E.g.,
CF, pp. 1793 at 73, ll. 4-20.
11

Because of these alternatives, the Citys evidence tends to show

there is little reason to believe that banning hydraulic fracturing will
limit the production of oil and gas in the city limits of Longmont. CF,
pp. 1214-15, 13.
SUMMARY OF ARGUMENT
The court below used the drastic remedy of summary judgment to
void a home rule charter amendment, even though the City presented
hundreds of pages of evidence raising disputes of material fact.
Home rule cities are not mere subordinates to the State. In
matters of local concern, home rule cities stand on equal footing with
the State and their laws supersede state law in a conflict. To tell if a
local law involves such a matter of local concern, a court must balance
the local interests at stake with the state interests and determine which
weigh more. If the Citys interests outweigh the States, state law
cannot preempt the local law.
Here, the City presented dozens of documents showing that local
interests in protecting the communitys health, safety, and welfare
from the risks of fracking are real, and strong. Yet the court refused
12

to consider any of this evidence. It declined to conduct the required test

of balancing the Citys and the States interests. Instead it assumed,
incorrectly, that any State interest in the matter was enough to
overcome the Citys home rule authority. This Court should correct this
misunderstanding.
The court then moved to the issue of whether Article XVI conflicts
with state law. Under Supreme Court case law, the only relevant kind
of conflict is operational conflict, which arises only where a local law
materially impedes or destroys the states interests. Instead, the courts
main concern was whether Article XVI forbids something the state
authorizes. This Court has specifically held this is an incorrect test for
preemption. It would invalidate far more local laws than the correct
test set forth by this Court and our Supreme Court.
But even under this incorrect test, Article XVI is still valid. The
full statement of the test is that the City may not prohibit what the
State explicitly authorizes. While Article XVI does prohibit fracking, no
state statute, regulation, or permit system authorizes fracking in any
explicit, express, or affirmative way.
13

To apply the correct test, the operational conflict test, a trial court
must make findings of fact on an ad hoc basis. To do this, it must allow
the parties to develop a full evidentiary record. As always, if material
facts are in dispute, summary judgment may not issue. Here, the City
raised several issues of material fact with competent evidence. Expert
affidavits and public records show that fracking is unnecessary to
extract oil and gas efficiently, that alternative extraction methods do
not waste resources or unfairly reduce the profits of neighboring
landowners, and that Article XVI actually furthers state interests by
ensuring that oil and gas operations proceed responsibly. In other
words, facts before the district court showed that Article XVI does not
impede the States interests that it passes the operational conflict
test. In these circumstances, under both C.R.C.P. 56 and Supreme
Court case law specific to oil and gas, the district court should have
denied summary judgment and moved to the factfinding stage. It did
not, and was in error.
This Court should correct the district courts misunderstandings of
the controlling law and remand for the necessary factfinding.
14

ARGUMENT
The City presented facts precluding summary judgment for the
Plaintiffs. Every issue presented to this Court falls under a de novo
standard of review, and Plaintiffs must prove Article XVI invalid
beyond a reasonable doubt.
I.

The district court erred by disregarding local interests in

holding Article XVI is not within the Citys home rule
authority.
A.

The standard of review is de novo, and Article XVI is

presumed valid.

Whether Article XVI is a matter of local concern, and therefore

supersedes state law, is a legal issue, requiring a court to consider the
totality of the circumstances in reaching its conclusion. Webb v. City of
Black Hawk, 2013 CO 9, 16. Review is de novo. Id. The City raised
the issue at summary judgment. CF, pp. 1346-71.
Appellate courts review grants of summary judgment de novo as
well. Shelter Mut. Ins. Co. v. Mid-Century Ins. Co., 246 P.3d 651, 657
(Colo. 2011). Summary judgment may issue only if no material facts

15

are genuinely in dispute and the moving party is entitled to judgment

as a matter of law. Id.
Preemption based on a state statute, in this case the Act, is a
specialized rule of statutory construction and is reviewed de novo.
Colorado Min. Assn v. Bd. of Cnty. Commrs of Summit Cnty., 199 P.3d
718, 737 (Colo. 2009) (Summit County).
A citys legislative enactment is, like a state statute, presumed to
be valid, and the one assailing it bears the burden of overcoming that
presumption, and courts indulge every intendment in favor of its
validity. Baum v. City & Cnty. of Denver, 147 Colo. 104, 111, 363 P.2d
688, 691 (1961). [I]t has repeatedly been stated that the invalidity of
an ordinance must be established beyond a reasonable doubt. Id. at
111, 692; accord JJR 1, LLC v. Mt. Crested Butte, 160 P.3d 365, 372
(Colo. App. 2007). The presumption applies not only to a local
enactments unconstitutionality but to its validity in a preemption
challenge. See Moore v. City of Boulder, 29 Colo. App. 248, 252, 484
P.2d 134, 136 (1971).

16

B.

Discussion

The Colorado Constitution gives home rule cities authority over

matters of local concern. Colo. Const. art. XX, 6. In these matters,
home rule cities have plenary authority and a local law trumps a
conflicting state law. City & Cnty. of Denver v. State, 788 P.2d 764, 767
(Colo. 1990) (Denver) (attached as Exhibit 2). By contrast, in matters
of state concern, state law controls. Id. In matters of mixed state and
local concern, state and local laws can coexist, but state laws control
when the two conflict. Id. Sections II-IV infra describe the type of
conflict Plaintiffs must prove in this case. This Section addresses the
more fundamental question of whether Article XVI is fully within the
Citys home rule authority as a matter of local concern.
The test for whether a matter is of local concern, and not of state
or mixed concern, is whether the local interests in the matter outweigh
the states interests. Webb, 2013 CO 9, 19. Just because the state has
an interest in an issue important to a home rule city does not make it a
matter of state or mixed state and local concern. Denver, 788 P.2d at
767. If the states interests are relatively minor compared to the citys
17

based on the totality of the circumstances, the local interests outweigh

the states, and the matter is declared to be of local concern. Id. at 771.
Four factors have assisted the courts in assessing whether state or
local interests are weightier in any given case, but the courts have
stated plainly that these factors are non-exclusive and are not
themselves the statement of the home rule assessment. City of
Commerce City v. State, 40 P.3d 1273, 1280 (Colo. 2002); CF, p. 739.
That said, the four named factors are (1) the states interest in uniform
regulation, (2) extraterritorial effects of the local law, (3) whether the
state or the city has traditionally regulated the issue, and (4) whether
the text of the Colorado Constitution answers the question. Webb, 2013
CO 9, 19. The assessment must also include any other relevant
factors, including the local interests in the local law being challenged.
Webb, 2013 CO 9, 19; Denver, 788 P.2d at 767-68, 770-72.
One case where local interests outweighed state interests was City
and County of Denver v. State. There, a state statute expressly forbid
municipalities from restricting their employees place of residence, but
Denver required its employees to live in the city. 788 P.2d 765. The
18

State claimed a need for uniform regulation (the first factor), and
objected to the extraterritorial effects of the ordinance (the second
factor). Id. at 768-69. The Supreme Court, however, held that the local
interests in reinvesting money in the community, making employees
more available in an emergency, and making them overall more
attentive, compassionate, and diligent in their work were stronger
than the States interests. Id. at 771. Therefore, the matter was one of
local concern, and the local law applied despite a contrary state law. Id.
In the instant case, the City presented extensive, unrebutted
evidence that fracking is not necessary to produce oil and gas, and
harms local health, local safety, the local environment, local property
values, the local social fabric, and the resources of the local government.
See supra Statement of Facts. The evidence on the risks of fracking is
credible and well-developed, leading the State of New York to prohibit

19

the practice statewide because the risks substantially outweigh any

potential economic benefits. 1
But the district court did not consider this evidence nor give the
City a chance to present it in court, saying instead it was not in a
position to agree or disagree with any of these exhibits. CF, p. 2050.
Rather than conduct an evidentiary hearing and weigh these strong
local concerns against the relevant state interests, the court simply
found the risks of fracking insufficient to completely devalue the
States interest. Id. Therefore the court concluded that Article XVI is
a matter of mixed state and local concern. To decide otherwise, the
court said, would be a public policy rather than a legal decision, one
that favors protection from health, safety, and environmental risks
over the development of mineral resources. Id. Ultimately, the court
called this question above [its] pay grade and left it for the legislature
or a different court to decide. R. Tr. (July 9, 2014), p. 69, l. 19; CF, p.
2050.
1

Press Release, N.Y. State Dept of Envtl.Conservation, New York State

Department of Health Completes Review of High-volume Hydraulic Fracturing
(Dec. 17, 2014), http://www.dec.ny.gov/press/100055.html (emphasis added).
20

These statements demonstrate two basic misunderstandings of

the home rule analysis. First, the court thought that deciding a home
rule question in favor of a municipality would be an impermissible
public policy action, rather than a constitutional function. Contra
Webb, 2013 CO 9, 17-18. But because this test emanates from the
Constitution, it is for the courts to apply. It cannot be passed off to the
General Assembly, the executive branch, or a state agency. When
considering a citys home rule authority, a court is not selecting its
favored public policy, but maintaining constitutional balance among the
political divisions and subdivisions of the State. Webb, 2013 CO 9, 17
(in local matters, a home-rule city is not inferior to the General
Assembly).
Second, the court thought that for Article XVI to be a matter of
local concern, the State must have no interest whatsoever in the matter
or that its interest must be completely devalue[d]. Contra Denver, 788
P.2d at 771. The Denver Court, in contrast, did not find it necessary to
completely devalue the States interests. 788 P.2d at 771. The States

21

interests must be minor or outweighed relative to the Citys for a matter

to be of local concern not completely nonexistent.
To be sure, state interests influence the home rule assessment.
But the City presented evidence concerning those state interests as
well, including undisputed evidence that Article XVI has an
insignificant impact on the states economic interests. CF, pp. 1211-14.
Other alleged state interests are in dispute, including the first three of
the four factors described above. First, as the court below hinted,
fracking regulations need not be uniform statewide. CF, pp. 1356-60,
2041 n.3. Second, Article XVI has no extraterritorial effect, as
demonstrated when one operator fracked right up to the City limits.
CF, pp. 1724 at 123, 1934 at 74-76. Third, the State has not
traditionally placed any substantive restrictions on fracking. CF, pp.
1748-49, 1775 at 70-71, 1780 at 113-15. At summary judgment, the
Citys competent evidence on these matters raised issues of disputed
material fact and should have been taken as true. Churchey v. Adolph
Coors Co., 759 P.2d 1336, 1345 (Colo. 1988). On the fourth factor, the

22

Constitution does not say whether the State or the City is responsible
for governing fracking.
This Court could hold that Article XVI is a matter of local concern
based on the undisputed facts, but it need not make such a holding to
decide this appeal in the Citys favor. Instead, this Court need only
acknowledge that, because the court below disregarded the Citys
interests, the proper weighing analysis has not yet been performed.
Because the analysis must be fact-intensive, ad hoc, and based on the
totality of the circumstances, it requires factual findings based on a full
evidentiary record developed at trial. Webb, 2013 CO 9, 19. At
summary judgment, the court below should have accepted the Citys
evidence as true and viewed it in the light most favorable to the City.
Condo v. Conners, 266 P.3d 1110, 1114 (Colo. 2011). Had it done this,
the court could only have concluded that the local interests are very
strong and the state interests very weak.
Further, this Court can remand this case for the necessary
factfinding without overruling Voss v. Lundvall Bros., 830 P.2d 1061
(Colo. 1992) as the lower court suggests. See CF, p. 2052 n.11. Voss
23

held in 1992 that a total ban on oil and gas operations involved
weightier state interests than local interests. 830 P.2d at 1068; see
generally Voss (describing the ban as total 23 times). But Voss left
open the possibility that a home rule city could enact something less
than a total ban. Id. at 1068-69. As the Plaintiffs conceded at oral
argument, they no longer argue that Article XVI acts as a total ban,
because it allows operators to drill and extract oil and gas. CF, p. 2052.
Instead, what is in dispute is whether prohibiting one relatively new
and controversial activity is as impermissible under the Constitution as
a total ban.
Many material facts have changed dramatically since Voss came
down in 1992, among them the technology available, the economics of
employing various engineering methods, and the sheer magnitude of
todays fracking operations. See Commerce City, 40 P.3d at 1282
([W]hat is of local versus state interest depends on the time,
circumstances, technology, and economics. . . . The danger to be avoided
is a temptation to consider something state or local because it was so
denominated fifty years ago. (citations and alterations omitted)). The
24

district court here found, for example, that well location and spacing
are no longer as important as they were in 1992, although they were
central concerns in Voss. CF, p. 2041 n.3. The Citys evidence on the
risks of fracking is also new since Voss. The district courts analysis
must be ad hoc, based on the facts of the instant case, not the outdated
facts forming the Courts premises in Voss. Webb, 2013 CO 9, 38.
By refusing to consider the Citys evidence that Article XVI is a
matter of local concern, the district court improperly circumvented the
ad hoc analysis required by Colorado home rule jurisprudence and
resolved disputed factual issues at summary judgment. The Citys
arguments raise at least a reasonable doubt as to whether Article XVI
should be overturned. See Baum, 147 Colo. at 111. Accordingly, this
Court should remand this case to the district court to perform the
requisite factfinding and interest-weighing analysis.

25

II.

The district court applied an improper test for operational

conflict.
A.

The standard of review is de novo.

This Court reviews de novo whether the district court used the
correct legal standards. Vickery v. Vickery, 271 P.3d 516, 520 (Colo.
App. 2010) revd on other grounds sub nom. Vickery v. Evans, 266 P.3d
390 (Colo. 2011).
The City raised this issue at summary judgment. CF, pp. 1327,
1371-72.
B.

Discussion

State law can preempt a local law in only three ways: express
preemption, implied preemption, and conflict preemption. The first two
are primarily matters of statutory interpretation. Summit County,
199 P.3d at 723. The Supreme Court has performed that interpretation
and held that the Act does not expressly (by clear declaration) nor
impliedly (by occupying the field) preempt all local regulations of oil and
gas operations. Bd. of Cnty. Commrs, La Plata Cnty. v.
Bowen/Edwards Associates, Inc., 830 P.2d 1045, 1056-59 (Colo. 1992)
26

(Bowen/Edwards) (attached as Exhibit 1). Unlike in Summit County,

which involved hard rock mining, the Act does not grant a state agency
sole authority to regulate oil and gas nor contain a declaration
describing state concerns as predominant. Cf. Summit County, 830
P.2d at 727, 731 (holding a local ban impliedly preempted for these
reasons).
The remaining type of preemption in the oil and gas realm occurs
when an operational conflict exists, which is where the operation of a
local law would materially impede or destroy the state interest behind
the Act. Bowen/Edwards, 830 P.2d at 1059; accord Bd. of Cnty.
Commrs, LaPlata Cnty. v. Colorado Oil & Gas Conservation Commn,
81 P.3d 1119, 1123 (Colo. App. 2003) (LaPlata County v. Commission).
Every case on preemption under the Act since Bowen/Edwards
has confirmed this test. E.g., LaPlata County v. Commission, 81 P.3d at
1123; Bd. of Cnty. Commrs of Gunnison Cnty. v. BDS Intl, LLC., 159
P.3d 773, 778 (Colo. App. 2006) (BDS). Yet the district court based
the bulk of its analysis on a different test:
The test to determine whether a conflict exists is whether
the home-rule citys ordinance authorizes what state statute
27

forbids, or forbids what state statute authorizes. Here,

Longmonts Article XVI forbids hydraulic fracturing which is
authorized by the state. . . . [Longmont] does not have the
authority to prohibit what the state authorizes and permits.
CF, p. 2054 (emphasis added) (citation and quotation marks omitted)
(quoting Webb, which is not an oil and gas case).
This re-casting of the operational conflict test as a forbid/authorize
test has never been adopted by our Supreme Court and was rejected by
this Court in Town of Frederick. In that case, the town defending its oil
and gas ordinance cited National Advertising for the proposition that
there is no operational conflict here because its ordinance does not
authorize any act that the state prohibits. Town of Frederick v. N. Am.
Res. Co., 60 P.3d 758, 765 (Colo. App. 2002). The town also cited Ray v.
City and County of Denver, 109 Colo. 74, 77, 121 P.2d 886, 888 (1942)
(another case that did not involve oil and gas issues), which describes
this test more fully: In determining whether an ordinance is in
conflict with general laws, the test is whether the ordinance permits or
licenses that which the statute forbids and prohibits, and vice versa.
But this Court declined to apply that test to oil and gas cases, holding:

28

The Towns reliance on Ray and National Advertising for

these propositions is misplaced. The operational conflicts
test announced in Bowen/Edwards and Voss controls here.
Frederick, 60 P.3d at 765.
Similarly, this Court has held squarely that the Commissions
rules and the Act do not preempt every conflicting local regulation, only
those which materially impede or destroy the state interest. LaPlata
County v. Commission, 81 P.3d at 1123. And even the Commissions
own regulations specify that the proper test for preemption is the
operational conflict test as set forth in Bowen/Edwards, not the
forbid/authorize test. Colo. Code Regs. 404-1:201. (Commission Rules
do not affect local authority so long as such local regulation is not in
operational conflict with the Act or regulations promulgated
thereunder).
The Bowen/Edwards test reflects a careful balance between state
and local interests in regulating oil and gas activities, even for local
governments without home rule. The balance is crucial because the
states interest is not so patently dominant over local interests as to

29

preclude local governments from regulating in the area.

Bowen/Edwards, 830 P.2d at 1058.
Indeed, it is precisely the Bowen/Edwards test that allows local
regulation of oil and gas to exist at all. Local regulation necessarily
means that a local government will place restrictions on oil and gas
activities that the State does not. If a local government cannot do this,
it cannot regulate. Were this Court to allow the forbid/authorize test to
supplant the operational conflict test, it would effectively erode[] the
delicate balance struck by the Supreme Court in Bowen/Edwards.
LaPlata County v. Commission, 81 P.3d at 1125.
In the instant case, the district court acknowledged that
Bowen/Edwards applies. CF, p. 2053. Nevertheless, the court
employed an extraneous test rather than the test actually laid out in
Bowen/Edwards. By using the incorrect test, the district court shortcircuited the operational conflict analysis and neglected facts showing
Article XVI does not materially impede the state interest. The
particular facts are discussed infra in Section IV.

30

The district court did base some of its judgment on the actual
operational conflict test. Yet, even those portions rest on premature
determinations of disputed fact and so were improperly decided, as
described in Section IV. The court based the majority of its decision,
however, on an inappropriate test for preemption. Accordingly, this
Court should reverse and remand to the district court to apply the
correct test.

III. The City does not forbid what the State authorizes,
because no state statute or regulation explicitly authorizes
fracking.
A.

The standard of review is de novo.

This Court reviews de novo whether the district court used the
correct legal standards. Vickery, 271 P.3d at 520. The district court
held Article XVI was preempted for forbidding what the State
authorizes. Here, the City argues that besides using an incorrect test,
see supra Section II, the district court misunderstood the meaning of the
word authorize in the test that it did use, and misapplied the

31

forbid/authorize test on that basis. This is a matter of law to be

reviewed de novo.
The City raised this issue at summary judgment. CF, pp. 1328-53.
B.

Discussion

Article XVI is valid, even when analyzed under the incorrect test
of whether the City forbids what the State authorizes, described above
in Section II, because no state law explicitly authorizes fracking.
The Supreme Court has set out an important part of the
forbid/authorize test that the district court did not discuss: local
governments generally may not forbid that which the state has
explicitly authorized. Summit County, 199 P.3d 718, 725 (emphasis
added) (internal quotation marks removed) (quoting Johnson v.
Jefferson County Bd. of Health, 662 P.2d 463, 471 (Colo.1983)); Sant v.
Stephens, 753 P.2d 752, 756 (Colo. 1988) (city may not forbid[] what
the state has expressly authorized (emphasis added) (quoting Aurora v.
Martin, 507 P.2d 868, 86970 (1973)). The word explicitly is
important. It prevents courts from looking through state law to infer
that an activity is authorized. Presumably, a court would base the
32

inference on the lack of a state prohibition and the comprehensive

nature of the state regulations. But the courts already have a term for
that type of analysis: implied preemption. Bowen/Edwards, 830 P.2d
at 1056; BDS, 159 P.3d at 778 (implied preemption exists when the
legislature intends to completely occupy a given field). And there is no
implied preemption under the Act. Bowen/Edwards, 830 P.2d at 105960.
The Supreme Courts use of the word explicitly is consistent with
a mounting consensus across jurisdictions that a states authorization
must indeed be explicit to preempt local regulations under the
forbid/authorize test.2
For example, the Tenth Circuit illustrated this principle clearly in
Rancho Lobo, Ltd. v. Devargas, 303 F.3d 1195 (10th Cir. 2002) a case

Alabama Recycling Assn, Inc. v. City of Montgomery, 24 So. 3d 1085, 1090

(Ala. 2009) (expressly); Bauer v. Waste Mgmt. of Connecticut, Inc., 662 A.2d
1179, 1188 (Conn. 1995) (expressly); Jancyn Mfg. Corp. v. Suffolk Cnty., 518
N.E.2d 903, 907-08 (N.Y. 1987) (specifically); Terry v. City of Portland, 269
P.2d 544, 550-51 (Or. 1954) (expressly); City of Claremont v. Kruse, 100 Cal.
Rptr. 3d 1, 20 (Cal. Ct. App. 2009) (expressly); New Mexicans for Free Enter. v.
City of Santa Fe, 126 P.3d 1149, 1165-66 (N.M. Ct. App. 2006) (affirmatively or
specifically).
33

similar to this one in many respects. In that case, the question was
whether a local government in New Mexico prohibited something the
states Timber Harvesting Act authorized. The state act empowered a
state agency to regulate timber cutting and grant timber-cutting
permits. Id. at 1198-99. The act specifically stated it was not intended
to prevent the conversion of forested land to other uses i.e.
clearcutting. Id. at 1198, 1205. One New Mexico county, however,
passed an ordinance requiring a local permit to harvest timber, and
specifically prohibited clearcutting unless the applicant received a
variance. Id. at 1199, 1205. A timber company sued on preemption
grounds rather than seek the local variance. Id. at 1199-1200.
Sitting in diversity, the Tenth Circuit explained that under New
Mexico law, the test is whether the ordinance permits an act the
general law prohibits, or prohibits an act the general law permits. Id.
at 1200, 1205. Applying this test, the court held that the state act does
not state that landowners shall have the right to clear-cut or that
clear-cutting is permitted. Id. at 1205. Therefore, the state act does
not establish an affirmative right to clear-cut, and does not conflict
34

with the local ordinance prohibiting clearcutting without a local

variance. Id. (emphasis added).
This goes to the heart of what authorize means. In Rancho
Lobo, the legislature arguably implied that it intended to allow
clearcutting, because the state act provided that clearcutting was not
meant to be forbidden. Nevertheless, the state act did not expressly
authorize or permit clearcutting, so the county could prohibit it without
forbidding what the state authorized. Id. State authorization must be
affirmative, to use the Tenth Circuits word, not tacit or inferred. Id.
Perhaps contrary to popular understanding, no state statute or
regulation specifically provides that fracking is authorized in Colorado.
The closest the Act touches on the issue is that it grants the
Commission authority to regulate the shooting and chemical
treatment of wells. 34-60-106(2)(b). This does not amount to
authorizing fracking, for two reasons. First, the section merely
empowers the Commission to regulate operations. It does not authorize
any particular operation such as fracking. The Commission could, in
theory, attempt to specifically authorize fracking through its rules and
35

regulations, but it has not. Second, by the Commissions own

definitions, fracking is neither shooting (which is the use of
explosives) nor chemical treatment (since fracking is defined as the
use of pressurized fluid to fracture, and chemical use is not an integral
part of its definition). See CF, pp. 269-70, 713-14, 904 at 28, ll. 3-12,
1332-1334, 1765 at 17, ll. 8-15, 1775 at 70-71.
As for the Commissions regulations under the Act, the Citys
summary judgment response brief discussed each rule that even
mentions hydraulic fracturing. CF, pp. 1336-39. These rules require
operators to notify surrounding landowners before fracking, and later to
publicly disclose some of the chemicals used. Colo. Code Regs. 4041:205, :205A, :305.c, :316C, :805. But the Commission does not issue
permits to frack. CF, pp. 1716 at 54-55, 1775 at 70 (deposition of
Commissions engineering manager). And no Commission rule
expressly authorizes fracking.
So, neither the Act nor the Commissions regulations authorize
fracking in any clear or explicit way. The district court did not point to
any provision of the Act or regulations as specifically authorizing
36

fracking but said, simply, The Commission permits hydraulic

fracturing and Longmont prohibits it. CF, p. 2121. The court drew an
impermissible inference that fracking is allowed, rather than identify
the necessary affirmative right in state law to frack. Rancho Lobo,
303 F.3d at 1205. In this way, the court improperly used the
forbid/authorize test as a backdoor to implied preemption. The problem
with this is that the actual implied preemption test is more protective of
local authority, because it applies only when a state act completely
occupies a given field and the Act here does not. Bowen/Edwards,
830 P.2d at 1056, 1058-59.
The State does not affirmatively or expressly authorize fracking.
Because Article XVI does not prohibit anything state law affirmatively
authorizes, it does not conflict with state law. Even under the incorrect
forbid/authorize test, Article XVI is not preempted.

37

IV.

The district court improperly resolved disputed issues of

material fact at summary judgment, and did not base its
decision on a fully developed evidentiary record as
required by the Supreme Court.
A.

The standard of review is de novo, and Article XVI is

presumed valid.

Appellate courts review grants of summary judgment de novo.

Shelter, 246 P.3d at 657. Summary judgment is a drastic remedy
which is proper only if no genuine issue of material fact is in dispute
and the moving party is entitled to judgment as a matter of law. Id. At
summary judgment, the nonmoving party is entitled to all favorable
inferences that may reasonably be drawn from the facts. People ex rel.
S.N. v. S.N., 2014 CO 64, 16. Where the City argues that the district
court overlooked material disputes of fact, this court should review the
question de novo.
A determination of preemption is also reviewed de novo. Summit
County, 199 P.3d at 737. A citys legislative enactment is presumed
valid, and invalidity must be established by the moving party beyond a
reasonable doubt. Baum, 363 P.2d at 691-92; Moore, 484 P.2d 134 at
136; see supra Section I.A.
38

The City raised the issue at summary judgment. CF, pp. 1371-82.
B.

Discussion

Operational conflict has been recognized as obvious at summary

judgment in some circumstances, as when a county imposed a total ban
on oil and gas operations. See Voss, 830 P.2d 1061. In other
circumstances, summary judgment has issued because express
provisions of the Act preempted specific local regulations. See BDS, 159
P.3d at 779-80. But for all other circumstances, where a party raises a
genuine factual question about whether an operational conflict exists, a
district court may not make a finding of operational conflict without an
evidentiary record fully developed at trial, followed by findings of fact.
Bowen/Edwards, 830 P.2d at 1060.
This is for two reasons. These reasons are doctrinally distinct, but
are grouped into this Section because they are conceptually similar and
both involve the same factual questions presented to the district court.
First, as with any type of case, summary judgment may be granted only
if no material facts are in dispute. C.R.C.P. 56. The court may not take
competing facts into account and resolve them in favor of one party.
39

Instead, the court must assume that the nonmoving partys the
Citys evidence is correct. Weisbart v. Agri Tech, Inc., 22 P.3d 954,
956 (Colo. App. 2001). As with any other factual question at summary
judgment, a court may not resolve disputed facts material to
operational conflict.
Second, where local oil and gas regulations are alleged to be in
operational conflict with state law, the issue will turn on the factual
question of whether the local regulations actually impede the state
interests. This can be complicated to discern, and cannot always be
perceived solely from the text of the regulations. See, e.g., BDS, 159
P.3d at 780-82. Therefore, in Bowen/Edwards, the Supreme Court held
that any determination of operational conflict must be resolved on an
ad-hoc basis under a fully developed evidentiary record.
Bowen/Edwards, at 830 P.2d at 1060; LaPlata County v. Commission,
81 P.3d at 1123. The district court must allow both parties to develop
this record, and must make its ultimate conclusions of law regarding
operational conflict based on appropriate findings of fact.
Bowen/Edwards, at 830 P.2d at 1060.
40

Here, the district court improperly made several findings of fact in

favor of the Plaintiffs at summary judgment and without an evidentiary
hearing despite the Citys contrary evidence. These findings include: (1)
Article XVI destroys the states interest in production, (2) Article XVI
causes waste, (3) Article XVI impairs correlative rights, and (4) Article
XVI impairs or destroys the full range of the States interests taken as a
whole, including its obligation to balance oil and gas production with
the health and welfare of Longmonts citizens and the environment. In
some places the court commingled these factual decisions with legal
errors, which this court reviews de novo.
1.

The City disputed Plaintiffs factual claim that Article

XVI prevents production of oil and gas.

First and most importantly, the court improperly concluded that

Article XVI has virtually destroyed the state interest in production.
The fracking ban has ended production in Longmont. CF, p. 2122. The
court seemed to agree with the Plaintiffs that most hydrocarbon
bearing formations in Colorado would not produce economic quantities
of hydrocarbons without hydraulic fracturing, as if this alleged fact
were not in dispute. CF, p. 2109. Article XVI, the court said, prevents
41

the efficient development and production of oil and gas resources. CF,
p. 2122. The court accepted as if they were uncontested fact
Plaintiffs affidavits saying fracking is necessary for a well to be
economical. CF, p. 2085.
These factual conclusions run counter to the Citys evidence that
efficient alternatives to fracking are available. Wells were drilled in
Colorado for a century before fracking arrived, and are still being
drilled and produced near Longmont, targeting the same mineral
formations underlying Longmont, without fracking. CF, pp. 1213-14,
9-10, 13, 1314-15; 1414-23 (reports from producing wells that were
not fracked); 1427-29, 7, 10; 1747 at 39, 1774 at 67. Further, the
City presented the affidavit of a published petroleum geologist, who
describes the process of underbalanced drilling as a viable, more
economical alternative to hydraulic fracturing, one which the industry
itself accepts and employs, and one which can be employed in
Longmont. Id. And as for Plaintiffs affidavits on which the court
relied, the affiants admitted in depositions that they had never tried

42

this alternative to fracking. E.g., CF, pp. 1774-75 at 68-69, 1793 at 73

ll. 4-20.
This evidence shows that, because fracking is not necessary to
produce oil and gas, Article XVI does not materially impair or destroy
the state interest in production. See Weisbart, 22 P.3d at 956 (resolving
all doubts as to the existence of a material fact against the movant for
summary judgment). At the very least, the evidence raises a
permissible inference that Article XVI does not prevent oil and gas
production, and courts must give the City the benefit of this inference at
summary judgment. S.N., 2014 CO 64, 16.
The court did not consider this evidence. Instead it deflected the
evidence by finding it uncontested that fracking is efficient but that
misses the point. CF, p. 2052. If other methods are available to
produce oil and gas, Article XVI does not destroy the States interest in
production. See S.N., 2014 CO 64, 16. By focusing on the efficiency
of fracking, the court overlooked material facts on alternative methods
and improperly resolved this factual dispute in favor of the Plaintiffs at
summary judgment.
43

2.

The City disputed Plaintiffs factual claim that Article

XVI causes waste.

The court determined that Article XVI causes mineral waste

abhorrent to state interests. CF, p. 2122. Waste occurs when an
operation reduces the quantity of oil and gas ultimately recoverable
from a pool. C.R.S. 34-60-103(13) (emphasis added).
In reaching this conclusion, the court relied on Plaintiffs evidence
that fracking brings more oil and gas out of the ground than would
otherwise come. CF, pp. 2039, 2052. But the court ignored the Citys
evidence to the contrary, which shows that while fracking leaves 9095% of oil and gas in the ground, other extraction methods such as
underbalanced drilling leave only 60-70% and extract the rest. CF, pp.
1428-30, 8-13. In other words, fracking is more wasteful than its
alternative.
Furthermore, waste is the reduction of oil and gas ultimately
recoverable from a reservoir. It is normal practice in the oil and gas
industry not waste to leave most of the oil and gas in the ground
until it can be more efficiently extracted. CF, p. 1716 at 53. In the
1980s, for example, a well would recover only around 3.5% of the oil and
44

gas from the Codell formation. CF, p. 1715. Operators are regularly
drilling new wells to capture the oil and gas previously left behind, and
new processes are continually developed which allow the remaining oil
and gas to be extracted. CF, pp. 1711, 1714, 1716, 1723-24. Until
recent years the normal practice was to drill wells without fracking. So,
while un-fracked wells do not recover all available oil and gas in a
formation, this does not demonstrate waste. And if it did, fracking itself
would be considered wasteful.
The City was entitled at summary judgment to the inference that
Article XVI does not cause waste.
3.

The City disputed Plaintiffs factual claim that

Article XVI impairs correlative rights.

Each mineral right holder in a common pool of oil and gas has a
correlative right to pursue a just and equitable share of the pooled
resource. 34-60-103(4). The court held that Article XVI impairs
correlative rights of mineral interest owners, contrary to state interests.
CF, pp. 2052-53.
Correlative rights are a concept closely related to waste. They are
a sideboard to the common-law rule of capture, designed to prevent
45

neighboring mineral rights holders from operating in self-enriching but

wasteful ways. 3
The court reasoned that mineral owners outside of Longmont
sometimes have their mineral royalty interests pooled with royalties
from mineral development within Longmont. Because royalties are
based primarily on the quantity and value of the oil and gas extracted,
the court reasoned that these outside mineral owners receive less
revenue when wells in Longmont are not fracked and less oil and gas is
extracted. Therefore, the court concluded, Article XVI impairs these
outside mineral owners correlative rights. Id.
This reasoning is unsound for three reasons. First, the courts
reasoning depends on the premise that fracking is the only or the most
efficient or economical way to operate a well. As discussed above in the
section on waste, this is an assumption the City has disputed with
3

John S. Lowe, Oil & Gas Law in a Nutshell (West 5th Ed. 2009) (defining
Correlative-Rights Doctrine as, A corollary to the rule of capture, that the right to
capture oil and gas from potentially producing formations under ones property is
subject to the concomitant duty to exercise the right without negligence or
waste.); see also 34-60-103(13)(c) (waste includes [a]buse of correlative
rights); Kingswood Oil Company v. Corporation Commission, 396 P.2d 1008,
1009-10 (OK 1964).
46

competent facts. The courts conclusion was therefore inappropriate at

summary judgment. See C.R.C.P. 56.
Second, the court misinterpreted the meaning of correlative
rights. The royalty that a mineral owner receives from pooled minerals
depends on the proportion of the pool the owner contributes, regardless
of whether the owner is within or without the City. Plaintiffs presented
no evidence that any royalty owner received a greater or lesser share of
production profits than their proper proportion. Because no owner took
an undue share, Article XVI does not impair correlative rights.
Third, the courts reasoning does not distinguish between Article
XVI and a simple choice not to frack. Put another way, the reasoning
would lead to the absurd conclusion that any time a mineral owner
chooses not to frack a well or chooses another production method that
might yield less-than-optimal results for a royalty interest holder that
choice impairs correlative rights. After all, those decisions have the
same effect on the correlative rights holder as Article XVI. But since
the Commission has always let operators decide whether and how to
frack, there is no support for the proposition that drilling a well without
47

fracking impairs correlative rights. Such a holding would outlaw what

have been considered normal operations. AviComm, Inc. v. Colorado
Pub. Utilities Commn, 955 P.2d 1023, 1031 (Colo. 1998) (against
adopting a statutory interpretation that leads to an absurd result).
4.

The City disputed Plaintiffs factual claim that Article

XVI destroys the state interest as a whole.

The production of oil and gas is not a full description of the state
interest at issue. The Commissions dual mandate is to foster
production only if it is consistent with protection of public health,
safety, and welfare, including protection of the environment and wildlife
resources. 34-60-102(1)(a)(I), C.R.S. (2014). A local regulation is only
in operational conflict with state law if it materially impairs or destroys
the state interest, taken as a whole. Bowen/Edwards at 1059. Where a
local regulation might affect the state interest in production, but
supports the state interest in public health and the environment, an
evidentiary hearing is necessary to determine whether an operational
conflict exists. BDS, 159 P.3d at 781 (Because the Countys drainage
and erosion regulations attempt to promote the states interest in
protecting the land and topsoil without imposing conflicting
48

requirements, they are not, on their face, contrary to state law, and a
hearing is required to determine any operational conflicts.).
The City presented reams of evidence that fracking is hazardous
to the public health (risks of various acute and chronic illnesses), safety
(risks of spills and fires), welfare (risks to local property values and
community character), and the environment (risks to air, water, and
soil quality). See supra Statement of Facts, 1. The district court
declined to take this evidence into account in deciding whether there
was an operational conflict. In other words, the court acted as if the
states only interest were in production of oil and gas. The court should
have afforded the City an opportunity to present a full evidentiary
record showing that Article XVI is consistent with the state interest in
responsible oil and gas development.
Instead, what the district court did amounted to drawing an
inference in favor of Plaintiffs that fracking is consistent with
protection of the public health, safety, welfare, and the environment,
despite considerable evidence to the contrary. This was improper at
summary judgment. Weisbart, 22 P.3d at 956.
49

All four of these issues are central to whether there is an

operational conflict which may preempt Article XVI. Yet the district
court did not allow the City to develop a record on any of these issues.
CF, p. 2054. It did not consider the evidence in an ad hoc manner.
Contra Bowen/Edwards, 830 P.2d at 1060; LaPlata County v.
Commission, 81 P.3d at 1123. And it did not make findings of fact
based on a fully developed evidentiary record. Id. To the contrary,
the court curtailed the Citys time to develop factual evidence, restricted
the topics the City could probe in its depositions, and cancelled the tenday hearing the parties had scheduled. CF, pp. 964, 2054.
Because the Plaintiffs never properly proved an operational
conflict, they did not establish beyond a reasonable doubt that Article
XVI is invalid. Contra Baum, 147 Colo. at 111. The courts process
contradicted the Supreme Courts direction in Bowen/Edwards and
Rule 56, and this case should be remanded for a full evidentiary hearing
at trial.

50

CONCLUSION
This Court should reverse and remand the district courts
summary judgment order with instructions to develop a full evidentiary
record at trial, to use that record to make findings of fact, and then to
apply the correct tests for home rule authority and operational conflict
to those factual findings to determine whether state law preempts
Article XVI.

51

DATED this 15th day of January, 2015.

Respectfully submitted,
CITY OF LONGMONT, COLORADO

s/Eugene Mei______________________
Eugene Mei
City Attorney
s/Daniel E. Kramer_________________
Daniel E. Kramer
Assistant City Attorney

PHILLIP D. BARBER, P.C.

s/Phillip D. Barber_________________
Phillip D. Barber
ATTORNEYS FOR THE APPELLANT
This document was filed electronically pursuant to C.R.C.P. 1-26. The
original signed document is on file at the offices of Phillip D. Barber,
P.C.

52

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing OPENING
BRIEF OF DEFENDANT-APPELLANT CITY OF LONGMONT, was served this 15th day
of January, 2015, by ICCES File and Serve on the following:
Karen L. Spaulding, Esq.
Beatty & Wozniak, P.C.
216 - 16th Street, Ste. 1100
Denver, CO 80202
Devorah Ancel, Esq.
Sierra Club Environmental Law Program
85 Second Street, 2nd Floor
San Francisco, CA 94105
Thomas J. Kimmell, Esq.
Zarlengo & Kimmell, PC
700 North Colorado Blvd., Ste. 598
Denver, CO 80206
John E. Jake Matter, Esq.
Julie M. Murphy, Esq.
Asst Attorney Generals
1300 Broadway, 10th Floor
Denver, CO 80203
Eric Huber, Esq.
1650 38th Street, Ste. 102W
Boulder, CO 80301
Kevin J. Lynch, Esq.
Environmental Law Clinic
Sturm College of Law
2255 East Evans Avenue
Denver, CO 80210
Mark Mathews, Esq.
Wayne F. Forman, Esq.
Michael D. Hoke, Esq.
Brownstein Hyatt Farber Schreck, LLP
410 17th Street, Ste. 2200
Denver, CO 80202

s/Shelley Peister

53