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COURT OF APPEALS, STATE OF COLORADO

2 East 14th Avenue


Denver, CO 80203
District Court, Boulder County, Colorado
Honorable Dolores Mallard
Case Number: 2013CV63
Appellant:
CITY OF LONGMONT, COLORADO,
Appellant-Intervenors:
OUR HEALTH, OUR FUTURE, OUR LONGMONT;
SIERRA CLUB; FOOD AND WATER WATCH; AND
EARTHWORKS,
v.
Appellees:
COLORADO OIL AND GAS ASSOCIATION and
COLORADO OIL AND GAS CONSERVATION
COMMISSION,
Appellee-Intervenor:
TOP OPERATING CO.

COURT USE ONLY


CYNTHIA H. COFFMAN, Attorney General
Case No.: 2014CA1759
MICHAEL FRANCISCO, Assistant Solicitor General*
JAKE MATTER, Assistant Attorney General*
JULIE MURPHY, Assistant Attorney General*
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, Colorado 80203
Direct: (720) 508-6289
michael.francisco@state.co.us
jake.matter@state.co.us
julie.murphy@state.co.us
Registration Number: 39111, 32155, 40683
*Counsel of Record
COMBINED ANSWER BRIEF OF
THE COLORADO OIL AND GAS CONSERVATION COMMISSION

TABLE OF CONTENTS
Page
INTRODUCTION .................................................................................. 1
ISSUES PRESENTED FOR REVIEW ................................................. 3
STATEMENT OF THE CASE AND FACTS ........................................ 4
SUMMARY OF THE ARGUMENT .................................................... 10
ARGUMENT ........................................................................................ 12
I. The Longmont bans are impliedly preempted, just like
Greeleys ban was in Voss. .............................................................. 12
A. The State has a sufficiently dominant interest in regulating
hydraulic fracturing and the storage and disposal of E&P
Waste to preempt the Longmont bans. .........................................13
B. The Longmont charter amendment is inconsistent with and
irreconcilable with the State regulatory scheme. .........................19
II. Longmonts fracking ban is preempted by operational
conflict as a matter of statewide concern, or alternatively,
mixed statewide and local concern. ................................................ 29
A. Regulating hydraulic fracturing is a matter of statewide
concern..............................................................................................30
B. Even if considered a matter of mixed concern, Longmonts
fracking ban impermissibly conflicts with state law. ...................38
C. Longmonts claimed factual dispute does not undermine
the case for operational conflict preemption. ................................43
D. Longmonts E&P Waste storage and disposal bans are
preempted as matters of mixed concern. .......................................45

TABLE OF CONTENTS
Page
III. Longmonts ban on hydraulic fracturing is void under the
Areas and Activities of State Interest Act because it prevents
the extraction and exploration of minerals. ................................... 47
IV. Longmonts ban on disposal of fracking fluids is void under
the federal Safe Drinking Water Act. ............................................. 48
CERTIFICATE OF COMPLIANCE .................................................... 51
CERTIFICATE OF SERVICE ............................................................. 52

ii

TABLE OF AUTHORITIES
Page
CASES
Banner Advertising, Inc. v. City of Boulder,
868 P.2d 1077 (Colo.1994) ..................................................................... 20
Bath Petroleum Storage, Inc. v. Sovas,
309 F. Supp. 2d 357 (N.D.N.Y 2004) .................................................... 49
Bd. Of County Commrs v. BDS Intl,
159 P.3d 773 (Colo. App. 2003) ................................................. 18, 25, 33
Bd. Of County Commrs v. Bowen/Edwards Assoc.,
830 P.2d 1045 (Colo. 1992) ............................................................ passim
City and County of Denver v. State of Colo.,
788 P.2d 764 (Colo.1990) ........................................................... 29, 30, 37
City of Denver v. Qwest Corp.,
18 P.3d 748 (Colo. 2001) ........................................................................ 36
City of Northglenn v. Ibarra,
62 P.3d 151 (Colo. 2003) ............................................................ 20, 29, 37
Colo. Min. Assn v. Bd. Of County Commrs,
199 P.3d 718 (Colo. 2009) .............................................................. passim
Gade v. Natl Solid Waste Mgmt. Assn,
505 U.S. 88 (1992) ................................................................................. 42
Johnson v. Jefferson Cnty Bd. of Health,
662 P.2d 463 (Colo. 1983) ...................................................................... 20

iii

TABLE OF CONTENTS
Page
Kemper v. Hamilton,
274 P.3d 562 (Colo. 2012) ...................................................................... 37
National Advertising Co. v. Department of Highways,
751 P.2d 632 (Colo.1988) ....................................................................... 40
Robinson Twp., Washington Cnty. v. Commonwealth,
83 A.3d 901 (Pa. 2013)........................................................................... 37
Town of Frederick v. N. Am. Res. Co.,
60 P.3d 758 (Colo. App. 2002) ............................................. 18, 25, 33, 40
Town of Telluride v. Thirty-Four Venture,
3 P. 3d 30 (Colo. 2000) ........................................................................... 46
Voss v. Lundvall Brothers,
830 P.2d 1061 (Colo. 1992) ............................................................ passim
Webb v. City of Black Hawk,
295 P.3d 480 (Colo. 2013) ................................................................ 29, 45
Wolfe v. Sedalia Water & Sanitation Dist.,
2015 CO 8 (Colo. 2015) .......................................................................... 12
STATUTES
42 U.S.C. 300f ........................................................................................ 48
C.R.S. 24-65.1-101 ................................................................................... 9
C.R.S. 24-65.1-202(1) ............................................................................. 47
C.R.S. 30-20-100.5 ................................................................................. 46
C.R.S. 30-20-101 .................................................................................... 46
C.R.S. 34-24-101 .................................................................................... 23
iv

TABLE OF CONTENTS
Page
C.R.S. 34-60-101 ............................................................................ passim
C.R.S. 34-60-102(1) ...................................................................... 6, 24, 39
C.R.S. 34-60-102(1) (1984) ..................................................................... 14
C.R.S. 34-60-103(4) ................................................................................ 17
C.R.S. 34-60-103(6.5) ....................................................................... 22, 46
C.R.S. 34-60-104(2) .................................................................................. 7
C.R.S. 34-60-105(1) ................................................................................ 22
C.R.S. 34-60-106(11) ................................................................................ 7
C.R.S. 34-60-106(2) ................................................................................ 22
Colo. Sess. Laws, ch. 317, sec. 1 ................................................................. 6
Colo. Sess. Laws, ch. 320, sec. 1 ................................................................. 7
RULES
2 CCR 404-1 ................................................................................................ 4
Commission 2008 Rulemaking Statement of Purpose.................... 1, 7, 36
Commission Rule 100-Series Definitions .............................................. 4, 5
Commission Rule 205A ........................................................................ 4, 25
Commission Rule 305.c .............................................................................. 4
Commission Rule 308B .............................................................................. 5
Commission Rule 316C .............................................................................. 5
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TABLE OF CONTENTS
Page
Commission Rule 317.j ......................................................................... 5, 25
Commission Rule 317.s .............................................................................. 5
Commission Rule 318A ...................................................................... 14, 31
Commission Rule 325 ........................................................................... 5, 48
Commission Rule 341 ............................................................................... 32
Commission Rule 603 ................................................................................. 6
Commission Rule 604.c .............................................................................. 5
Commission Rule 805.c .............................................................................. 5
Commission Rule 900-Series...................................................................... 5
Commission Rule 908.h ............................................................................ 46
TREATISES
Phillip D. Barber, 1B Colo. Methods of Practice 14:4 (5th ed.
2011) ....................................................................................................... 17

vi

INTRODUCTION
Few public policy issues in Colorado have been the subject of more
intense debate, discussion, and regulatory activity in recent years than
the use of hydraulic fracturing in oil and gas drilling. The Colorado Oil
and Gas Conservation Commission engaged in a protracted and
controversial rulemaking wherein the appropriate level of regulation for
fracking was actively debated. See 2008 Rulemaking Statement of
Purpose, p.35 (discussing Rule 341) (available at
http://cogcc.state.co.us/RuleMaking/FinalRules/COGCCFinalSPB_12170
8.pdf).
That rulemaking was the epitome of a compromise in that it may
have pleased nobody. But it was the embodiment of the States best
judgment about how to balance the costs and benefits of fracking. Some
citizens, and some local governments think the State balanced those
costs and benefits incorrectly, and a few, including Longmont, simply
think the activity should be banned, at least within its borders. This
Court need not and should not resolve the ultimate policy debate about
fracking. Whatever the merits of Longmonts position are as a matter of

policy, since at least 1992, it has been clear local governments are not
empowered to prohibit drilling practices permitted by the State.
While the City of Longmonts ban on fracking is preempted under
several doctrines and statutes, the case can be resolved by a simple,
direct application of Voss v. Lundvall Brothers, 830 P.2d 1061 (Colo.
1992). As the Court emphasized in Voss, in the context of a home-rule
city (Greeley) using land-use authority to ban certain oil and gas
development practices, [t]here is no question that the efficient and
equitable development and production of oil and gas resources within
the state requires uniform regulation of the technical aspects of drilling,
pumping, plugging, waste prevention, safety precautions, and
environmental restoration. Id. at 1068 (quoting Bd. Of County
Commrs v. Bowen/Edwards Assoc., 830 P.2d 1045, 1058 (Colo. 1992)).
Unanimously, Voss held the home-rule citys attempt to ban oil and gas
drilling was preempted by the State regulatory system. Voss remains
good law. It must be followed here. The Longmont bans, like the Greely
ban before it, are preempted by state law and regulation.

ISSUES PRESENTED FOR REVIEW


1.

Is the City of Longmonts ban on hydraulic fracturing activities


impliedly preempted by the States dominant interest in
regulating oil and gas development?

2.

Is the City of Longmonts ban on hydraulic fracturing activities


preempted by operational conflict with the States authorization of
the same activities?

3.

Does the Areas and Activities of State Interest Act preempt the
City of Longmonts ban on hydraulic fracturing?

4.

Does the Federal Safe Drinking Water Act preempt the City of
Longmonts ban on certain disposal techniques used with
hydraulic fracturing?

STATEMENT OF THE CASE AND FACTS


Hydraulic fracturing is a well-completion technology that creates
small fractures in hydrocarbon-bearing geologic formations. These
fractures enable oil and natural gas to flow through a reservoir and into
the wellbore. Fracking in Colorado began in the 1970s and most wells in
the State would not produce economic quantities of oil and natural gas
without hydraulic fracturing. In fact, every oil and gas well in the City
of Longmont has been fracked at least once. CF, p. 1213, 9.
The Colorado Oil and Gas Conservation Commission (Commission
or COGCC) is the regulatory body charged with implementing the
Colorado Oil and Gas Conservation Act, 34-60-101 et seq., C.R.S. The
Commission Rules, 2 CCR 404-1, authorize and regulate hydraulic
fracturing:
Rule 100-Series Definitions (defining Base Fluid, Hydraulic
Fracturing Additive, Fluid & Treatment, Proppant and Total
Water Volume);
Rule 205A (disclosure and reporting of chemicals);
Rule 305.c.(1)(C)(iii) (operators must provide COGCCs
information sheet on hydraulic fracturing, CF. 613, to nearby
homeowners);

Rule 308B (operators must report the details of fracturing


including the volumes of all fluids involved to COGCC);
Rule 316C.a (operators must notify COGCC 48 hours in advance
of hydraulic fracturing);
Rule 317.j (detailing casing and cementing required before
completion operations; aquifer protection);
Rule 317.s (imposing setback between existing wells and planned
wells where the planned well will be hydraulically fractured);
Rule 805.c (silica dust control and handling).
The Commission Rules also authorize and regulate the storage and
disposal of wastes associated with hydraulic fracturing, which the
Commission Rules define as Exploration and Production Waste (E&P
Waste):
Rule 100-Series (Definition of E&P Waste);
Rule 900-Series (E&P Waste Management);
Rule 325 (underground disposal of water; Class II injection wells);
Rule 604.c.(2)(B)(ii) (prohibiting pits containing hydraulic
fracturing fluid or flowback within 500 feet of homes). 1

The Commission adjusts the level of regulation covering fracking


activities. For example, on March 2, 2015, the Commission adopted
new rules governing open pit storage of fracking waste. The rule
prohibits open pits in flood plains, as defined by municipalities. See

In 1994, the General Assembly revised the legislative declaration of


the Oil and Gas Conservation Act to read: It is declared to be in the
public interest to foster, encourage, and promote the development,
production, and utilization of the natural resources of oil and gas in the
state of Colorado in a manner consistent with protection of public
health, safety, and welfare. See 34-60-102(1)(a)(I), C.R.S.
(underlined wording added in 1994); see Colo. Sess. Laws, ch. 317, sec.
1, at 1978; CF, p.1872.
In 2007, the General Assembly enacted significant revisions to the
Oil and Gas Conservation Act, including amending the legislative
declaration to read: It is declared to be in the public interest to
foster encourage, and promote the responsible, balanced development,
production, and utilization of the natural resources of oil and gas in the
state of Colorado in a manner consistent with protection of public
health, safety, and welfare, including protection of the environment and
wildlife resources. See 34-60-102(1)(a)(I), C.R.S. (underlined

_________________________
Rule 100 Series Definition of Floodplain and revised Rule 603 available
at http://cogcc.state.co.us/RR_Docs_New/FloodPlain/FinalRule.pdf
6

wording added in 2007); Colo. Sess. Laws, ch. 320, sec. 1, at 1357 (HB
07-1341); CF, p.1876.
HB 07-1341 also made the states chief medical officer, the
executive director of the Colorado department of health and
environment (CDPHE), a permanent voting member of the
Commission, 34-60-104(2)(a)(I), C.R.S., and directed the Commission
to Promulgate rules, in consultation with [CDPHE], to protect the
health, safety, and welfare of the general public in the conduct of oil and
gas operations. 34-60-106(11)(a)(II), C.R.S. The rulemaking required
under these statutory changes was the most extensive rulemaking
hearing in the Commissions history. 2008 Rulemaking Statement of
Purpose, p.5.2 The 2008 rule amendments were intended to address
increased drilling activity extending into new areas of the state with
additional people and respond to public concern for the health, safety
and welfare of Colorados residents. Id., p. 1-2.
On November 6, 2012, Longmont residents voted in favor of Ballot
Question 300, which amended the Citys home-rule charter to create a

Available at http://cogcc.state.co.us/RuleMaking/FinalRules/
COGCCFinalSPB_121708.pdf
2

new Article XVI. CF, p.2298. As a result, Longmonts charter now


states:
It shall hereby be the policy of the City of Longmont that
it is prohibited to use hydraulic fracturing to extract oil, gas
or other hydrocarbons within the City of Longmont. In
addition, within the City of Longmont, it is prohibited to
store in open pits or dispose of solid or liquid wastes created
in connection with the hydraulic fracturing process,
including but not limited to flowback or produced
wastewater and brine.
CF, p.636.
The foregoing bans have stopped new oil and gas development in
Longmont. Appellee TOP Operating owns and operates producing wells
in Longmont and, prior to the passage of the bans, contracted with the
City to drill and hydraulically fracture others. However, in light of the
Citys prohibition on hydraulic fracturing, TOP has determined that it
cannot economically develop its mineral interests in Longmont.
Similarly, Synergy Resources, Inc. has been adversely affected by the
Longmont bans. Synergy obtained a permit from the Commission to
drill a horizontal well originating at a surface location in nearby
Firestone, Colorado. The well was built as-planned and travels
horizontally through minerals under Firestone and Longmont. In light
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of the Citys ban on hydraulic fracturing, Synergy could not fracture


stimulate that portion of the horizontal well under Longmont, thus
reducing the productivity of the well.
On December 17, 2012, Plaintiff-Appellee Colorado Oil and Gas
Association (COGA) sued to invalidate the Longmont bans in their
entirety as preempted by the States comprehensive regulatory scheme.
The Commission and TOP subsequently joined the case as plaintiffs.
CF, p.317. The Commission also argued the bans were void under the
Areas and Activities of State Interests Act, 24-65.1-101, et seq. C.R.S.
Longmont filed counterclaims arguing its charter amendment was a
valid exercise of its home-rule authority under the Colorado
Constitution.
In the spring of 2014, Appellees filed motions for summary judgment.
Appellants sought leave to conduct written and oral discovery prior to
responding to the motions, which the district court granted. The district
court heard oral argument and entered an order granting summary
judgment on July 24, 2014 invalidating the charter amendment in its
entirety. CF, p.2038-54 (subsequently Order). The district court also
granted the Appellees request for an injunction enjoining Longmont

from enforcing the bans, but stayed the injunction during the pendency
of this appeal.
SUMMARY OF THE ARGUMENT
First, Longmonts bans are impliedly preempted by the States
dominant interest in regulating oil and gas development. Courts
consider a sufficiently dominant state interest in regulating a matter to
indicate an intent by the General Assembly to preempt conflicting local
government regulations. There is little question the Commission is
responsible for regulating the use of hydraulic fracturing and the
storage and disposal of associated waste and that the use of fracking is
prevalent in the Longmont area. Longmont simply banned what the
State has authorized, a paradigm case for implied preemption.
The Longmont bans impeded the state interest, regardless of
perceived health risks or benefits from fracking activity. Any doubt
about the Commissions authority to regulate fracking must be resolved
by deferring to the Commissions interpretation of its own authority.
Finally, hydraulic fracturing is a technical aspect of oil and gas
development, and as such, the statewide regulation of the activity
preempts local regulation.
10

Second, the Longmont bans are preempted by operational conflict


with the State law and regulation governing fracking. The regulation of
fracking is a matter of statewide concern whereby conflicting local
regulation is preempted. The four factors traditionally applied to
determine matters of statewide concern favor preemption: (1) there is a
need for uniform statewide regulation of fracking, (2) the local ban of
fracking has an extraterritorial impact, (3) the State has traditionally
regulated fracking, and (4) the Colorado Constitution is neutral on the
subject.
Even if considered a matter of mixed state and local concern, the
Longmont bans conflict with state laws and regulation and are
preempted. Local regulations must be capable of being harmonized with
state law and regulation to survive in an area of mixed state and local
concern. The simple ban of fracking activity cannot be harmonized with
State authorization of the same.
Third, the City of Longmonts bans are preempted under the State
Areas and Activities of State Interest Act, which provides a mechanism
for localities to enact limited regulations in a specific zone properly
designated. Absent designation, local regulations in this area are
preempted.
11

Fourth, the Longmont ban of disposing of fracking fluids by means of


injection wells is preempted under the Federal Safe Drinking Water
Act. Local governments are not free to prohibit the use of wells known
as Class II injection wells.
ARGUMENT
I.

The Longmont bans are impliedly preempted, just like


Greeleys ban was in Voss.
Standard of Review: Summary judgment is appropriate when the

pleadings and supporting documentation demonstrate that no genuine


issue of material fact exists and that the moving party is entitled to
judgment as a matter of law. See C.R.C.P. 56(c). Appellate courts review
the grant of a motion for summary judgment de novo as a question of
law. Wolfe v. Sedalia Water & Sanitation Dist., 2015 CO 8, 12 (Colo.
2015).
Colorado courts follow a three-pronged analysis to determine
whether state law preempts a local regulation either by (1) express
preemption, (2) implied preemption, or (3) operational conflict
preemption. E.g. Colo. Min. Assn v. Bd. Of County Commrs, 199 P.3d
718, 724 (Colo. 2009); Bowen/Edwards, 830 P.2d at 1056-57. It has long
been understood that the purpose of the preemption doctrine is to
12

establish a priority between potentially conflicting laws enacted by


various levels of government. Bowen/Edwards, 830 P.2d 2045 at 1055.
Implied preemption is a species of statutory interpretation. Implied
preemption examines whether the state interests at issue are
sufficiently dominant so as to override conflicting local rules, and
analyzes whether state and local regulatory schemes contain either
express or implied conditions which are inconsistent and irreconcilable
with each other. Colo. Mining Assn, 199 P.3d at 725 (citation omitted).
This argument was preserved. CF, p.736-38.
A.

The State has a sufficiently dominant interest in


regulating hydraulic fracturing and the storage and
disposal of E&P Waste to preempt the Longmont bans.

The most straightforward way to resolve this case is to apply the


preemption analysis from the Colorado Supreme Courts seminal case of
Voss v. Lundvall Brothers, which found the City of Greeleys ban on oil
and gas drilling to be impliedly preempted by the Oil and Gas
Conservation Act, 34-60-101130, C.R.S., (Act). There, just as here,
a home-rule city banned oil and gas activities which were expressly
authorized by the Commission. Id. at 1062.
Almost all legal issues in this case have been definitively answered
by the decision in Voss, in the context of facts that are materially
13

indistinguishable from this case:


Both cities lie within what is known as the Greater Wattenberg
Area. See Commission Rule 318A.
Both cities banned Commission-authorized activities.
Both cities claimed to have exercised home rule authority.
Citizens in both cities expressed concerns about the health and
safety of oil and gas development by banning such activities.
The Commission interpreted its regulatory scheme as
preempting city prohibitions.
On these nearly identical facts the Colorado Supreme Court examined
the conflicting claims of the State and the locality and found the local
regulation was preempted. The same is true here.
The Voss decision examined the declared purposes of the Act as the
expression of the state interest in oil and gas operations. Id., at 1065
(citing 34-60-102(1), C.R.S. (1984) (purposes were to foster,
encourage, and promote the development, production, and utilization of

14

the natural resources of oil and gas in the state of Colorado, prevent
waste and protect correlative rights)). 3
The Commissions authority under the Act was compared to the
home-rule citys claimed authority to use land use regulation to ban the
drilling of oil and gas wells within city limits. The Court found there
was no question the Act evidences a significant interest on the part of
the state in efficient and fair development, production, and utilization of
oil and gas resources. Id. at 1065-66.
The Court concluded the States interest is sufficiently dominant to
override a home-rule citys imposition of a total ban on the drilling of
any oil, gas, or hydrocarbon wells within the city limits. Id. at 1068.
This was so [b]ecause oil and gas pools do not conform to the
boundaries of local government, Greeleys total ban on drilling within
the city limits substantially impedes the interest of the state in
fostering efficient development and production of oil and gas resources
in a manner that prevents waste and that furthers the correlative
rights of owners and producers in a common pool or source of supply to

As stated in the Statement of Facts, supra, the Commissions statutory


mandate was enlarged in 2007. See 34-60-101(1), C.R.S.

15

a just and equitable share of profits. Id. The entire analysis in Voss
applies to Longmonts bans on oil and gas operations involving
hydraulic fracturing.
There is no legally meaningful difference between banning oil and
gas drilling, and banning hydraulic fracturing and the storage or
disposal of its associated waste. Other than calling for the court to
outright reverse the Voss decision, which this court cannot consider, the
defendants try mightily to create a difference between a total ban on
drilling in Greeley and Longmonts total ban on hydraulic fracturing
and other Commission-authorized activities. See Longmont Op. Br. at
23-25. For preemption purposes, there is no difference. Almost all wells
in the Longmont area, including the Greater Wattenberg Area, and in
all of Colorado, rely on hydraulic fracturing to be productive. CF, p.613
(Hydraulic fracturing . . . is now standard for virtually all oil and gas
wells in our state. Hydraulic fracturing has made it possible to get this
oil and gas out of rocks that were not previously considered as likely
sources for fossil fuels.); CF, p.623 (Most of the hydrocarbon bearing
formations in Colorado would not produce economic quantities of
hydrocarbons without hydraulic fracturing.).

16

Longmont cannot disagree with the prevailing use of fracking to


complete wells. See Order at 15; CF, 2052 (relying on evidence at CF,
pp.660-61). Longmonts fracking ban does not allow any fracking under
any circumstances a total ban whereas the Commission authorizes
hydraulic fracturing, including the storage and disposal of its associated
waste, pursuant to a comprehensive regulatory regime. There is no
question the Longmont bans have undermined the States interests in
oil and gas development codified in the Act. For example, Synergys
experience is a textbook example of an abuse of correlative rights in
contravention of the Acts mandate that such rights be protected. See
34-60-102(1)(a)(III) & 103(4), C.R.S; see also Order at15; CF, 2052
(Longmonts ban on hydraulic fracturing does not protect correlative
rights of owners; it impairs the correlative rights of owners.). 4

State oil and gas conservation commissions exist to modify the


common law rule of capture. The protection of correlative rights is an
essential element of Colorados Act. See Phillip D. Barber, 1B Colo.
Methods of Practice 14:4 (5th ed. 2011) (Three essential areas in
which the public had a legitimate interest in altering the common law
[were the prevention of waste, maximizing recovery and that] oil and
gas produced, saved and sold should be divided in an equitable manner
among the persons having the right to extract them. This concept was
expressed in the term correlative rights.).
4

17

The Longmont charter amendment substantially impedes the state


interest in the equitable and efficient development and production of
Colorados oil and gas resources as embodied in the Act and
Commission Rules. Cf. Voss, 830 P.2d at 1068. There is no dispute
about the overwhelming, near-universal use of hydraulic fracturing in
Colorado. Likewise, there is no dispute the bans have stopped
operations that were otherwise permitted by the Commission.
The unbroken string of cases following the Voss analysis bespeaks of
the vitality of the precedent. Many of the subsequent cases involve local
regulations attempting to limit oil and gas operations. See Bd. Of
County Commrs v. BDS Intl, 159 P.3d 773 (Colo. App. 2003) (finding
numerous county regulations of oil and gas operations preempted);
Town of Frederick v. N. Am. Res. Co., 60 P.3d 758 (Colo. App. 2002)
(finding certain town requirements preempted).
In particular, the Colorado Supreme Courts analysis in Colorado
Mining Association amplifies the preemption conclusions from Voss.
There, in a strikingly analogous case, a local government banned an
industrial activity many members of the public believed to be dangerous
to the health and safety of local citizens; namely mining techniques
using toxic chemicals such as cyanide. Id. at 721. When the ban was
18

imposed, there was no doubt that mining using these toxic substances
could result in environmental catastrophe, as the Summitville Mine
disaster from mining using cyanide polluted the nearby Alamosa River.
Id at 727. In the face of these negative externalities, the General
Assembly granted the Board extensive authority to authorize and
regulate mining operations proposing to utilize toxic or acidic chemicals
for mineral extraction. Id. at 728. Declaring Voss to be particularly
instructive, the court in Colorado Mining Association explained that
[s]ufficient dominancy is one of several grounds for implied state
preemption of a local ordinance[,] id at 724, and [d]ue to the
sufficiently dominant state interest in mineral processing utilizing such
chemicals, we find implied preemption in this case. Id. at 726.
B.

The Longmont charter amendment is inconsistent with


and irreconcilable with the State regulatory scheme.

Local rules are impliedly preempted where they contain either


express or implied conditions which are inconsistent and irreconcilable
with the state regulatory scheme. Colo. Mining Assn, 199 P.3d at 725
(citation omitted). Outright prohibitions, like those at issue here, are
subject to heightened scrutiny in preemption analysis. Id.

19

It is axiomatic that a local government cannot prohibit what the


Colorado General Assembly has chosen to permit. From Voss to Ibarra
to Colorado Mining Association, the Colorado Supreme Court has
consistently found local bans to be preempted by State laws permitting
the activity:
a home-rule city may not enact a ban prohibiting what the state
agency may authorize under the statute. Colo. Min. Assn, 199
P.3d at 730 (discussing Voss);
Summit Countys existing ordinance is not a proper exercise of its
land use authority because it excludes what the General Assembly
has authorized. Id. at 721;
local ban ordinances that conflict with state statutes in an
overlapping field of regulation are subject to preemption. Id. at
724;
State regulations authorizing placement of multiple registered sex
offenders in single household implied intent to preempt local
regulation banning such households. City of Northglenn v. Ibarra,
62 P.3d 151, 163 (Colo. 2003). 5
The Colorado Supreme Court has invalidated other bans on activities
authorized by the state. See, e.g., Johnson v. Jefferson Cnty Bd. of
Health, 662 P.2d 463, 471 (Colo. 1983) (local government may not
forbid that which the state has explicitly authorized.); see also Banner
Advertising, Inc. v. City of Boulder, 868 P.2d 1077, 1081-83 (Colo.1994)
(federal preemption analysis; local ban impliedly preempted where
federal regulation allowed activity).
5

20

The Longmont bans fall squarely within this species of implied


preemption cases. State laws that authorize an activity preempt local
regulations that purport to ban the authorized activity. This case can be
resolved by applying the implied preemption line of cases where local
governments have attempted to ban activities that are otherwise
authorized by state law.
Without a doubt, fracking has been the subject of intense public
scrutiny in recent years, even though it has been used for decades in
Colorado and elsewhere. This is not some little-noticed aspect of oil and
gas operations that has escaped the watchful eye of the Commission; far
from it. For example, in 2011, the Commission adopted additional Rules
directly applicable to hydraulic fracturing operations. These Rules were
the result of participation from the industry and public, including many
citizens who echoed the health and safety concerns represented in
Longmonts brief. CF, p.623 (Statement of Basis and Purpose for
Commission Rule 205A). 6 Where the States authorized response to

In 2008, the COGCC completed a review and update of its


regulations. Numerous sections of the regulations related to hydraulic
fracturing were revised. The regulations now contain standards that
address current hydraulic fracturing practices. The COGCC is
commended for this comprehensive program update. State Review of

21

particular concerns conflicts with a localitys, the states position must


prevail.
The General Assembly expressly authorized the Commission to
regulate the shooting and chemical treatment of wells, including
through the use of hydraulic fracturing, 34-60-106(2)(b), C.R.S., and
has expressly authorized the Commission to regulate the generation,
transportation, storage, treatment, and disposal of exploration and
production wastes. 34-60-103(6.5), C.R.S. The Commission has the
power to make and enforce rules and to do whatever may reasonably
be necessary to carry out the provisions of the Act. 34-60-105(1),
C.R.S. The Commission has used its authority under the Act to enact a
comprehensive set of regulations authorizing hydraulic fracturing and
the storage and disposal of E&P Waste. See Rules listed in Statement of
Facts, supra.
Should there be any doubt about the Commissions authority to
regulate hydraulic fracturing operations or the nature of that
regulation, the courts must defer to the Commissions interpretation of
_________________________
Oil and Natural Gas Environmental Regulations, Inc., Colorado
Hydraulic Fracturing State Review (2011), CF, p.581, 593 (E&P Waste
rules review ).
22

its own organic statute and regulations. The Supreme Court in


Colorado Mining Association looked to the Mined Land Reclamation
Boards reasonable interpretation of its own statute, the Mined Land
Reclamation Act, 34-24-101, et seq. C.R.S., to determine the Board had
the statutory authority to promulgate rules and regulations authorizing
the activity in question. 199 P.3d at 732. While not bound by the
Boards interpretation, the Colorado Supreme Court accorded deference
to the interpretation that the Board, not local government, had the
authority to regulate mining techniques using toxic chemicals such as
cyanide. Id. Likewise, here, the Commission interprets its authorizing
statute to give it the exclusive authority to regulate and permit
hydraulic fracturing operations. That interpretation is reasonable, has
never been questioned by the General Assembly, and should be given
deference.
The district court correctly noted [t]here is no question that the Oil
and Gas Conservation Act evidences a significant interest on the part of
the state in the efficient and fair development, production, and
utilization of oil and gas resources. Order at 5, 11; CF, 2042, 2048. The
Colorado Supreme Court has conclusively found that the State has a
sufficiently dominant interest to override a home-rule citys
23

imposition of a total ban on the drilling of any oil, gas, or hydrocarbon


wells within the city limits. Voss, at 1068. The Act expresses this
dominant interest whereby the State favors allowing each oil and gas
pool in Colorado to produce up to its maximum efficient rate of
production, preventing waste, and protecting correlative rights. 3460-102(1)(b), 1(a)(II) & 1(a)(III), C.R.S. The legal conclusion, namely
that Colorado has a sufficiently dominant interest in oil and gas
development to preempt a local ban on hydraulic fracturing operations,
remains binding. Such an interest is sufficient, without more, to
impliedly preempt local regulations that conflict with the state
regulation. E.g., Colorado Mining Assn, 199 P.3d at 733 (Implied
preemption occurred here because the General Assembly expressed a
sufficiently dominant interest by assigning to the Board the field of the
use of chemicals and other toxic and acidic reagents in mining
operations).
Moreover, case law also compels a finding of implied preemption over
hydraulic fracturing because the practice falls squarely in the technical
aspects of oil and gas operations, a field in which state regulation is
superior. Hydraulic fracturing is a quintessentially technical aspect of
oil and gas operations. The companion case to Voss, Bowen/Edwards,
24

830 P.3d at 1066, noted that preemption occurs by implication when a


local government impose[s] technical conditions on the drilling or
pumping of wells under circumstances where no such conditions are
imposed under the state statutory or regulatory scheme); see also BDS,
19 P.3d at 779 (local regulations are preempted if they impose
technical conditions on the drilling or pumping of wells under
circumstances where no such conditions are imposed by state law);
Town of Frederick, 60 P.3d at 764 (same). Courts understand the
statewide need for uniform regulation of the technical aspects of oil and
gas operations and the irreconcilable conflict that occurs if local
governments impose competing regulations on such activities.
Even a cursory review of the fracking rules adopted by the
Commission attests to the technical nature of the activity. Rules require
everything from specific disclosure of all chemicals used in hydraulic
fracturing fluid (e.g. Rule 205A), to specific cementing and casing
requirements that are engineered to sustain the pressures caused by
fracking. See Rule 317.j; see also Order at 10 n.4; CF, 2047 (detailing
Rules applicable to fracking). Rule 317.j alone is a paradigm example of
regulating the technical aspects of oil and gas operations, including
completion operations. It regulates specific psi strengths at specific
25

hours, requires cement to be in position a specific number of feet above


or below certain drilling zones, details how many hours the cement
shall cure before fracking can start, among other drilling minutia. As
the trial court found, Hydraulic fracturing is clearly within the
purview of a petroleum engineer; it might be a technical aspect of oil
and gas production [n]umerous Commission Rules apply to technical
aspects of the hydraulic fracturing process. Order at 11; CF, 2048.
Longmont has no answer to the technical nature of the Commissions
regulation of fracking, as the Opening Brief fails to discuss the issue.
Ever since the Colorado Supreme Court discussed the regulation of
technical aspects of oil and gas drilling in Bowen/Edwards, courts in
Colorado have understood that local regulations cannot impinge on the
technical aspects of oil and gas drilling. This finding independently
supports the conclusion that Longmonts fracking ban conflicts with the
Commissions regulation of the technical aspects of oil and gas
operations, namely regulations that allow hydraulic fracturing under
specified conditions.
Longmont makes much of the perceived harms and threat to
public health and safety from hydraulic fracturing. Longmont Op. Br.
at 7, 8-10 . It then boldly touts an alternative technology that it
26

contends should be used instead of fracking. Id. 10-12. 7 But these


concerns are precisely the type of policy judgments considered by the
General Assembly, which continues to encourage fracking under the
regulation of the Act and Commission. With 34,000 workers in Colorado
employed in the oil and gas industry, Colorado sees billions of dollars a
year in economic activity from this industry. 8 As a result, the State pays
keen attention to the use of hydraulic fracturing. Longmont is hardly
alone in being critical of fracking. As the district court correctly
recognized, this litigation is the wrong forum to engage in a policy
debate over the costs and benefits of fracking. That is the domain of the
General Assembly, and in this case, its designee, the Commission.
More importantly, even if all of Longmonts concerns were taken as
true, the implied preemption conclusion stands. Implied preemption
legally follows when a state law or regulation conflicts with a local ban.

Longmonts alternative drilling technology rests on managing the


natural pressure of a reservoir. Op. Br., 11. The Voss Court held that
managing the pressure characteristics of such reservoirs was the
domain of the State. Voss, 830 P.2d at 1067.

See, e.g., Colorado Office of State Planning and Budgeting, Dec. 22,
2014 Report, p.7 (discussing oil and gas industry in Colorado); available
at http://www.colorado.gov/cs/Satellite/OSPB/GOVR/1218709343298.

27

There is no balancing of interests, nor any need for a determination of


factual claims and policy judgments. The superior State interest
prevails over a contrary local regulation, as a matter of law. The
reasons behind Greeleys ban of oil and gas drilling played no role in
Voss. Likewise, Summit Countys reasons for banning mining which
used cyanide were well known, but provided no defense to the superior
State policy. Implied preemption calls for this dispute to be resolved
without taking any position on Longmonts policy claims.
The district court walked through the implied preemption analysis
and opted to resolve the case on other grounds (operational conflict
preemption), noting that it recognizes the possibility that implied
preemption may apply. Order at 11; CF, 2048. It does and should
apply. The Longmont bans impermissibly conflict with the Act by
banning a practices explicitly authorized by the Act and Commission
Rules. Three independent reasons compel a finding of implied
preemption: (1) the State has a sufficiently dominant interest in the
regulation of hydraulic fracturing operations; (2) the State authorizes
what Longmont purports to ban; and (3) hydraulic fracturing is a
technical aspect of oil and gas operations, an area which cannot be

28

subject to local regulation. All three reasons call for implied preemption
to apply.
II.

Longmonts fracking ban is preempted by operational


conflict as a matter of statewide concern, or alternatively,
mixed statewide and local concern.
Standard of Review: See section I above. Also, the question of

whether a matter is of state, mixed or local concern is a legal question


reviewed de novo. Webb v. City of Black Hawk, 295 P.3d 480, 486 Colo.
2013). The issue was preserved. CF, p.736-47.
Even if Longmonts fracking ban were not preempted by implication,
it would be preempted by operational conflict. The threshold issue in
deciding whether a law is operationally conflicted is to decide if the area
of regulation is matter of statewide, local, or mixed concern. See Webb,
295 P.3d at 486. A local government cannot regulate a matter of
statewide concern unless the Colorado Constitution or a state statute
expressly authorizes local regulation. City and County of Denver v. State
of Colo., 788 P.2d 764, 767 (Colo.1990) (relied on in Voss, 830 P.2d at
1066-67); Ibarra, 62 P. 3d at 156 (If there is no such explicit
authorization, then [the Courts] inquiry is over and the local law is

29

preempted.). 9 If the matter is purely of local concern, then a conflicting


State law or regulation will fall. Voss, 830 P.3d at 1066. For matters
that are of mixed state and local concern, the state law or regulation
will preempt any local regulation that cannot be harmonized. Id.
A.

Regulating hydraulic fracturing is a matter of statewide


concern.

Courts have traditionally looked to four factors as part of the totality


of circumstances consideration of whether a matter is of statewide,
local, or mixed concern: (1) the need for statewide uniformity; (2) the
extraterritorial impact of the local regulation; (3) traditional source of
regulation; and (4) whether the Colorado Constitution specifically
commits the particular matter to state or local regulation. Voss, 830

The test for preemption is legal and does not call on courts to simply
weigh competing interests of the State and local government, contrary
to Longmonts gloss of City and County of Denver v. State, a case where
a local residency requirement for city employment was found to be a
local concern. See Longmont Op. Br. at 17-18 (citing City and County of
Denver as standing for local interests outweighing state interests).
That case applied standard operational conflict preemption analysis
and did not talk of local interests outweighing state interests.
Moreover, the Colorado Supreme Court has recently confirmed that the
state has a significant interest in both mineral development and in
human health and environmental protection. Colo. Mining Assn, 199
P.3d at 730.

30

P.2d at 1067. All parties agree with the applicability of these factors.
The district court independently analyzed the factors and found the
first three favored preemption and the fourth factor was not applicable.
These findings were sound. Order at 11-12; CF, 2048-2049.
First, the need for statewide uniformity in regulation of hydraulic
fracturing strongly favors preemption. Oil and gas development
represents a multi-billion dollar industry in Colorado as of 2012,
playing a prominent role in the state economy. See fn.8, supra. As the
Colorado Supreme Court noted in Bowen/Edwards, there is no
question that the efficient and equitable development and production of
oil and gas resources within the state requires uniform regulation of the
technical aspects of drilling, pumping, plugging, waste prevention,
safety precautions, and environmental restoration. 830 P.2d at 1058.
This need for uniform regulation stems from the reality that oil and gas
reserves do not conform to the boundaries of any particular local
government (e.g. the Greater Wattenberg Area underlies numerous
counties north of Denver, and thus the location and spacing of oil wells
is most efficiently controlled by State. See Commn Rule 318A). The
State has found uniform regulation of oil and gas reserves to be crucial
to efficient and fair production of resources. For example, without
31

uniform regulation the development of oil and gas resources in Colorado


would be inefficient because a patchwork of local regulations would
distribute the benefits and burdens artificially based on local
government jurisdiction, as opposed to regulations targeting the oil and
gas reserves as a whole.
Uniform regulation of hydraulic fracturing is also necessary because
the process is a quintessentially technical aspect of oil and gas
operations. The procedure involves injecting large quantities of water,
gels, acids or gases underground to stimulate the production of oil and
gas from a target geologic formation. See Commn Rule 100 Series
Definition of Hydraulic Fracturing Treatment. The Commissions
regulatory regime is replete with technical requirements pertaining to
hydraulic fracturing. See, e.g., Commn Rule 341 (requiring operators to
monitor pressures during hydraulic fracturing). Because hydraulic
fracturing is a technical aspect of oil and gas operations, the State has a
strong interest in uniform regulations to ensure the efficient and
equitable development and production of the states oil and gas
resources. See Bowen/Edwards, 830 P.2d at 1066 (preemption occurs
where local government impose[s] technical conditions on the drilling
or pumping of wells under circumstances where no such conditions are
32

imposed under the state statutory or regulatory scheme); BDS Intl,


LLC., 159 P.3d at 779 (local regulations are preempted if they impose
technical conditions on the drilling or pumping of wells under
circumstances where no such conditions are imposed by state law or
regulation.); Town of Frederick, 60 P.3d at 764 (local regulations are
preempted if they regulate technical aspects of drilling and related
activities). As the district court noted, there is a comprehensive
regulatory structure in place in Colorado to regulate the oil and gas
industry, Order at 9; CF, 2046 and [t]he Court finds the Commission
regulates hydraulic fracturing. Order at 10; CF, 2047.
The case law attesting to the technical nature of oil and gas
regulations compelling statewide as opposed to local interest leaves no
doubt that the first factor strongly favors preemption. The district court
below did not hold otherwise, finding the need for uniform regulation of
hydraulic fracturing to be compelling.
Second, the Longmont fracking ban has an extraterritorial impact,
also favoring preemption. The district court looked to the undisputed
evidence that Synergy had drilled a well from a well pad outside
Longmont with a horizontal well bore that ran under Longmont city
limits for a portion. Given Longmonts fracking ban, Synergy fracked
33

only the portions of the well that did not underlie Longmont. As a
result, the Synergy well produced less oil and gas than it would have
produced had the entire well been fracked. Order at 12; CF, 2049. This
evidence of an extraterritorial impact is indicative of how a local ban on
oil and gas activity will have an impact outside the jurisdiction.
In addition, in Voss, the Supreme Court determined the City of
Greeleys ban on drilling had an extraterritorial impact because oil and
gas pools do not conform to the boundaries of local government. Voss,
830 P.2d at 1068. The Court reasoned that Greeleys total ban on
drilling within the city limits substantially impedes the interest of the
state in fostering the efficient development and production of oil and
gas resources in a manner that prevents waste and that furthers the
correlative rights of owners and producers in a common pool or source of
supply to a just and equitable share of profits. Id. Just as with
Greeleys ban, Longmonts ban affects the ability of nonresident owners
of oil and gas interests in pools that underlie both the city and land
outside the city to obtain an equitable share of production profits in
contravention of one of the statutory purposes of the Oil and Gas
Conservation Act. Id.

34

Longmont points to evidence that Synergy fracked a well right up to


city limits as demonstrating the lack of an extraterritorial impact of the
local ban. Longmont Op. Br. at 22. Quite the opposite, the admission
that an oil and gas well originating from outside Longmont had to
refrain from fracking because of Longmonts ban proves the
extraterritorial impact. The second factor strongly favors preemption.
Third, the tradition factor favors preemption because the Voss Court
determined the regulation of oil and gas development and production
has traditionally been a matter of state rather than local control. Voss,
830. P.2d at 1068. Fostering the efficient, safe production of the states
oil and gas resources benefits all Colorado citizens, and has been the
declared policy of the state for more than 60 years. The General
Assembly created the Commission to oversee oil and gas exploration
and production on behalf of all people in the state. In the 23 years since
the Supreme Courts decision in Voss, the Act and Commission Rules
have been updated multiple times to keep pace with technological
developments, including hydraulic fracturing technologies. For
example, amendments to the Act in 2007 led to an extensive update of

35

the Commission Rules in 2008. 10 Such advances have further solidified


the Commissions role as the authority over technical aspects of oil and
gas regulations because technological advances greatly increase[ ] the
need for uniformity of regulation. City of Denver v. Qwest Corp., 18
P.3d 748, 755 (Colo. 2001).
Longmonts only response on this point is to misdirect the inquiry
and claim the State has not placed restrictions on fracking, which
avoids the real legal question: has the State traditionally regulated the
oil and gas industry, including the use of hydraulic fracturing?
Longmont Op. Br. at 22. The district courts conclusion that this area
has traditionally been a matter of State regulation is unassailable. The
third factor likewise favors preemption.

See Final Statement of Basis and Purpose for 2008 Rulemaking


(available at http://cogcc.state.co.us/RuleMaking/FinalRules/

10

COGCCFinalSPB_121708.pdf; CF, 73 (discussing 2007 amendments to


the Act and resulting 2008 rulemaking).
36

Fourth, the Colorado Constitution is silent on allocating authority


over oil and gas development, or fracking in particular. There should be
no dispute this factor does not apply to the case. 11
Looking at the four standard factors, there is a strong case for
regulation of fracking to be found a matter of statewide concern. The
first three factors favor preemption and the fourth factor is neutral. As
a matter of statewide concern, Longmont cannot regulate in the area
unless it has been expressly authorized to do so by the Colorado
Constitution or a state statute. See City and County of Denver, 788 P.2d
at 767; Ibarra, 62 P. 3d at 156. There is no such authority. Therefore,

Intervenors, including the Sierra Club, argue the Longmont bans


are proper under the Inalienable Rights clause of the Colorado
Constitution, Art. II, 3. Sierra Club admits this novel argument is
unsupported by any Colorado case law and resorts to a case from
Pennsylvania claiming the Environmental Rights Amendment to the
Pennsylvania Constitution is comparable to Colorados Inalienable
Rights clause. Sierra Club Op. Br., pp. 18-19 (citing Robinson Twp.,
Washington Cnty. v. Commonwealth, 83 A.3d 901 (Pa. 2013)). Sierra
Clubs reliance on Robinson Twp. is misplaced because the
Pennsylvania court found dispositive that the provision establishes
the public trust doctrine. Id., at 942, 956. Colorado courts have thus far
rejected the public trust doctrine. Kemper v. Hamilton, 274 P.3d 562,
570 (Colo. 2012) (Hobbs, J., dissenting and discussing attempts to
amend Colorado Constitution to recognize doctrine).

11

37

the inquiry is over and the Longmont fracking ban is preempted by


operational conflict as a matter of statewide concern. The district court
analyzed the factors, finding they favored preemption as a matter of
statewide concern, CF, p. 2048-2049, but it opted instead to decide the
case as a matter of mixed state and local concern. The more direct and
appropriate result is to preempt the Longmont fracking ban on account
of the statewide interest and lack of any express local authorization to
regulate in the area.
B.

Even if considered a matter of mixed concern,


Longmonts fracking ban impermissibly conflicts with
state law.

In matters of mixed concern, a local regulation will be preempted by


operational conflict if it cannot be harmonized with the superior state
law. Even if this Court disagrees with the statewide interest in
regulation of hydraulic fracturing, set forth above, the State regulations
and interests in oil and gas development would, at a minimum, make
the matter one of mixed concern.
There is little doubt the State authorizes and regulates the hydraulic
fracturing of oil and gas wells, including all producing wells within
Longmont city limits. As the evidence below demonstrated, every
producing well in the City has been hydraulically fractured at least
38

once. See CF, p.663-64 (Commission affidavit); and CF, p.1213


(Affidavit of Citys expert stating such wells were all fractured). The
wells in Longmont were all drilled subject to permitting and regulation
by the Commission. The Longmont fracking ban nullifies the
Commissions authority to determine that drilling coupled with
hydraulic fracturing is needed to foster the responsible, balanced
development, production, and utilization of the natural resources of oil
and gas in the state of Colorado in a manner 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. By
preventing viable development of oil and gas wells, the Longmont ban
promotes waste (understood as inefficient development of oil and gas
resources), undermines correlative rights of mineral interests outside
Longmont, and destroys the States interest in ensuring that each oil
and gas pool in Colorado [will] produce up to its maximum efficient rate
of production. 34-60-102(1)(a)(II); 102(1)(a)(III); 102(1)(b), C.R.S.
The Longmont ban on hydraulic fracturing presents an irreconcilable
conflict with the Act and Commission Rules and is operationally
preempted. As matter of mixed concern, the district court found the

39

conflict to be obvious because the Commission permits hydraulic


fracturing and Longmont prohibits it. Order at 14; CF, 2051.
Longmonts argument misreads Colorado Supreme Court precedent
by failing to acknowledge the role played by the four-factors discussed
in Bowen/Edwards and subsequent cases as the starting point of
conflict analysis, followed by an ad hoc determination of the conflict. In
Webb, a case from just two years ago, the Court walked through the four
factors and then analyzed the conflict: The test to determine whether a
conflict exists is whether the home-rule citys ordinance authorizes
what state statute forbids, or forbids what state statute authorizes.
295 P.3d at 492. Longmonts argument misreads the controlling
precedent.
The argument also misreads Court of Appeals precedent by
characterizing Town of Frederick as having rejected the so-called ban
what has been authorized test. Longmont Op. Br. at 28. 12 There is
In fact, Longmonts argument flips the analysis from Town of
Frederick, which stated the issue as:

12

Similarly, the Town relies on National Advertising Co. v.


Department of Highways, 751 P.2d 632 (Colo.1988), for the
proposition that there is no operational conflict here because its
ordinance does not authorize any act that the state prohibits.
40

nothing particularly noteworthy in how Town of Frederick walked


through preemption analysis. It focused on the potential for
harmonizing local regulation with state regulation; fully consistent with
giving close scrutiny to local regulation that simply bans an authorized
activity.
The argument also misses how the district court below found, at least
by implication, that Longmonts fracking and related bans did in fact
materially impede the States proven interest in regulating and
authorizing the very same activity. The district court even quoted
Longmonts preferred nomenclature from Bowen/Edwards about
materially impede or destroy before stating, [h]ere, giving effect to
the local interest, banning fracking, has virtually destroyed the state
interest in production. Order at 15; CF, 2052. There was no error
below, and even if Longmonts desired formula were the exclusive test,
the fracking ban would still be preempted by operational conflict.
Some preemption cases face local government regulations with a
lesser degree of conflict, including regulations which attempt to permit
_________________________
But Longmont is not authorizing something the State prohibits; instead
it is prohibiting something authorized by the state.
41

or condition an activity authorized by the State, as opposed to a simple,


complete ban. E.g. Town of Frederick, 60 P.3d at 760 (local regulation
banned drilling unless special use permit obtained). Cases such as these
frequently turn on detailed analysis of how much interference is caused
by the additional local regulation and to what extent those double
regulations can be harmonized. This is analogous to federal preemption
law where courts look to the ability to comply with both regulations as
an indication that both regulations can survive without preemption.
Gade v. Natl Solid Waste Mgmt. Assn,
505 U.S. 88, 98 (1992). There is simply no need to speculate on how less
onerous local regulations may fare under an operational conflict
preemption analysis to decide this case. E.g. Bowen/Edwards, 830 P.2d
at 1060 (The county regulations thus appear to be designed to
harmonize oil and gas developmental and operational activities with the
countys overall plan for land-use).
Courts may face closer cases in the future, but this is not a close
case. Longmonts law can only be understood as a pure ban refusing to
allow any hydraulic fracturing activity, no matter how the State
attempts to control or regulate the activity. See Order at 16; CF, 2053
(There is no way to harmonize[] Longmonts fracking ban with the
42

stated goals of the Oil and Gas Conservation Act. The conflict in this
case is an irreconcilable conflict.). A ban of what the State allows is a
paradigm conflict subject to preemption.
C.

Longmonts claimed factual dispute does not undermine


the case for operational conflict preemption.

Perhaps recognizing the weakness of its legal position, Longmont


suggests this Court remand the case for additional factual development
instead of affirming the preemption finding of the district court.
Longmont Op. Br. at 38-50. Relying on a misreading of
Bowen/Edwards, Longmont contends the court needs a further
developed factual record to decide the operational conflict claims. Id. at
39 (citing Bowen/Edwards, 830 P.2d at 1061). There are multiple
problems with this line of argument.
First, Longmont continues to misstate the legal standards for
determining implied preemption and operational conflict preemption.
The implied preemption test is a matter of statutory construction that
does not hinge on localized concerns over health and safety. See Colo.
Mining Assn. 199 P.3d at 730-31. Even under the more involved
analysis for operational conflict preemption, Longmont continues to
improperly suggest a local interest can outweigh state interests in a
43

matter of mixed state and local concern. As explained above, the proper
analysis for a matter of mixed concern is whether the local regulation
can be harmonized with the state regulation, not whether the judicial
branch agrees with policy judgments of the state or local government.
The analysis turns on the conflict or harmonization of regulations, not
on the perceived values of factual claims made by the state or local
governments.
Second, none of the alleged factual issues raised by Longmont are
material to the operational conflict preemption analysis. Take for
example the most important[] issue, according to Longmont, of
whether Longmonts ban on hydraulic fracturing has destroyed the
state interest in oil and gas development. Longmont Op. Br. at 41-43.
This asks the wrong question. The State has an interest in oil and gas
development through the use of hydraulic fracturing, which the State
has elected to regulate and authorize as an efficient and commonly used
well-completion process. The Longmont ban conflicts with the State
interest because the State allows and regulates, intentionally so, the
use of hydraulic fracturing. That it may be theoretically possible to drill
an oil and gas well without using hydraulic fracturing does not, legally,
reduce the conflict and resultant preemption. And, tellingly, Longmont
44

cannot point to any economically viable development of oil and gas wells
in Longmont not using hydraulic fracturing. Even assuming all the
facts Longmont marshals are disputed, they are simply not material.
D.

Longmonts E&P Waste storage and disposal bans are


preempted as matters of mixed concern.

Longmonts bans on the open pit storage and disposal of wastes


associated with hydraulic fracturing implicate, at a minimum, matters
of mixed concern. Such bans are therefore operationally preempted
because they forbid what the Act and Commission Rules authorize and
regulate. Webb, 295 P.3d at 492.13 This argument was preserved. CF,
p.745-749.
The following illustrate a longstanding tradition of
intergovernmental cooperation in the field of E&P Waste management
and preclude a finding that Longmonts E&P Waste bans are matters of
purely local concern:
The Colorado Solid Waste Act explicitly provides the proper
disposal of solid wastes is a matter of mixed statewide and
local concern. 30-20-100.5, C.R.S. See also, 30-20As stated in section IV, infra, the Citys ban on Class II disposal wells
is subject to field preemption under federal law. See Bath Petroleum
Storage, Inc. v. Sovas, 309 F. Supp. 2d 357, 366 (N.D.N.Y 2004).

13

45

101(6)(b)(VI), CRS (Solid waste does not include:


Exploration and production wastes, as defined in section 3460-103 (4.5), C.R.S., except as such wastes may be deposited
at a commercial solid waste facility.); Town of Telluride v.
Thirty-Four Venture, 3 P. 3d 30 (Colo. 2000) (General
Assemblys determination that something is a matter of
local, mixed or state concern is afforded deference in
recognition of the legislatures authority to declare the public
policy of the state in matters of statewide concern.).
Commission Rule 908.h. provides Operators may be subject
to local requirements for zoning and construction of
centralized E&P Waste management facilities.
Banning the open pit storage of wastes associated with hydraulic
fracturing and the disposal of such wastes anywhere in the City negates
the Commissions specific statutory authority to regulate the
generation, transportation, storage, treatment, or disposal of
exploration and production wastes. 34-60-103(6.5), C.R.S.; 34-60103 (4.5), C.R.S. (defining E&P Waste). Such bans also negate
numerous Commission Rules and are therefore invalid under Webb. See
Rules listed in Statement of Facts, supra.

46

III. Longmonts ban on hydraulic fracturing is void under the


Areas and Activities of State Interest Act because it
prevents the extraction and exploration of minerals.
Standard of Review: De novo review applies. See section I above.
The issue was preserved. CF, p.744-45.
The Areas and Activities of State Interest Act (AASIA) enables
local governments to designate mineral resource areas as areas of
state interest, see 24-65.1-202(1)(a),C.R.S., and to then enact certain
regulations in the properly designated zone. In fact, local governments
may be able to prevent the extraction of minerals from mineral resource
areas if, after weighing sufficient technical or other evidence, [the local
government] finds that the economic value of the minerals present
therein is less than the value of another existing or requested use. Id.
Local governmental power to designate an area of oil and gas
development as an area of state interest, and therefore prevent
extraction and exploration pursuant to 24-65.1-202(1)(a), C.R.S., is
expressly limited by 24-65.1-202(1)(d), C.R.S., which provides:
(d) Unless an activity of state interest has been designated or
identified or unless it includes part or all of another area of state
interest, an area of oil and gas development shall not be
designated as an area of state interest unless the state oil and gas
conservation commission identifies such area for designation
[pursuant to 24-65.1-302(3), C.R.S.].
47

24-65.1-202(1)(d), C.R.S.
Thus, the AASIA, 24-65.1-202, C.R.S., provides an explicit and
exclusive means for local governments to ban oil and gas extraction and
exploration. Critically, no such ban may be enacted by a local
government unless the Commission first designates a defined area of oil
and gas development as an area of state interest that may be regulated
by the local government. 24-65.1-202(1)(d), C.R.S. It is undisputed
that the Commission has not done so in Longmont. CF, p.735. The
Citys ban on hydraulic fracturing is therefore void under AASIA. This
additional hurdle provides an alternative basis to affirm the court
below.
IV.

Longmonts ban on disposal of fracking fluids is void under


the federal Safe Drinking Water Act.

Standard of Review: De novo review applies. See section I above.


This issue was preserved. CF, p.745-46; Order at 15, fn.10; CF, 2052.
Disposal of hydraulic fracturing wastewater through underground
injection is a technical aspect of oil and gas operations. See Commn
Rule 325. In addition, the Federal Safe Drinking Water Act, 42 U.S.C.
300f et seq. (SDWA), authorizes the disposal of such wastes via
Class II injection wells (Class II Wells). Class II Wells are regulated
48

by the Commission pursuant to a delegation of federal authority from


the U.S. Environmental Protection Agency. CF, p.551-59.
The Citys outright ban on disposal of oil field wastes is a total ban
on Class II Wells. The SDWA preempts the field of underground
injection of oilfield waste and impliedly preempts the Citys disposal
ban insofar as it concerns Class II Wells. Bath Petroleum Storage, Inc.
v. Sovas, 309 F. Supp. 2d 357, 366 (N.D. N.Y 2004). This alternative
basis for preemption applies to Longmonts disposal ban.
CONCLUSION
The Commission requests the Court enter an order affirming the
district courts Order granting summary judgment in favor of the
Commission and finding the Longmont bans to be preempted.
Respectfully submitted this March 5, 2015.

CYNTHIA H. COFFMAN, Attorney


General
/s/ Michael Francisco

49

MICHAEL FRANCISCO, 39111*


Assistant Solicitor General,
JAKE MATTER, 32155*
Assistant Attorney General
JULIE M. MURPHY, 40683*
Assistant Attorney General
Resource Conservation Unit, Natural
Resources & Environment Section
Attorneys for Colorado Oil and Gas
Conservation Commission
*Counsel of Record

50

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of
C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth
in these rules. Specifically, the undersigned certifies that:
The brief complies with C.A.R. 28(g).
Choose one:
x It contains 9,439 words.
It does not exceed 30 pages.
The brief complies with C.A.R. 28(k).
X For the party raising the issue:
It contains under a separate heading (1) a concise statement
of the applicable standard of review with citation to
authority; and (2) a precise location in the record (R.__,
p.___), not to an entire document, where the issue was raised
and ruled on.
For the party responding to the issue:
It contains, under a separate heading, a statement of
whether such party agrees with the opponents statements
concerning the standard of review and preservation for
appeal, and if not, why not.
X I acknowledge that my brief may be stricken if it fails to
comply with any of the requirements of C.A.R. 28 and C.A.R.
32.
_/s/ Michael Francisco____

51

CERTIFICATE OF SERVICE
This is to certify that I have duly served the foregoing upon all parties
herein electronically via Integrated Colorado Courts E-Filing System or
by U.S. Mail, postage prepaid, this March 5, 2015, addressed as follows:
Karen L. Spaulding, Esq.
Beatty & Wozniak, P.C.
216 16th Street, Suite 1100
Denver, CO 80202
KSpaulding@bwenergylaw.com
Eugene Mei, Esq.
Daniel E. Kramer, Esq.
City Attorneys
City of Longmont
408 3rd Avenue
Longmont, CO 80501
eugene.mei@ci.longmont.co.us
dan.kramer@ci.longmont.co.us
Phillip D. Barber, Esq.
1675 Larimer Street, Suite 620
Denver, CO 80202
phillipbarber@aol.com

Thomas J. Kimmell, Esq.


Zarlengo & Kimmell, PC
700 North Colorado Boulevard,
Suite 598
Denver, CO 80206
kimmell01@aol.com
Mark Mathews, Esq.
Wayne F. Forman, Esq.
Michael D. Hoke, Esq.
Brownstein Hyatt Farber Schreck
LLP
410 17th Street, Ste. 2200
Denver, CO 80202
mmatthews@bhfs.com

Jeffery Philip Robbins


Goldman Robbins & Nicholson
P.C.
679 E. 2nd Ave., Suite C
P.O. Box 2270
Durango, CO 81301

Thomas A. Carr
Boulder County Attorneys Office
P.O. Box 791
Boulder, CO 80306
carrt@bouldercolorado.gov

52

robbins@grn-law.com
Kevin Lynch
Brad Arthur Bartlett
Sturm College of Law
2255 East Evans Ave., Ste. 33
Denver, CO 80301
klynch@law.du.edu

Eric Huber
1650 38th Street, Suite 102
Boulder, CO 80301
Eric.huber@sierraclub.org

/s/Linda Miller

53