COLORADO COURT OF APPEALS

2 East 14th Ave., Denver, CO 80203

District Court Boulder County, Colorado
Case Number: 2013CV63
The Honorable D.D. Mallard

DATE FILED: March 5, 2015 4:32 PM

Appellant: City of Longmont, Colorado

Intervenors: Our Health, Our Future, Our
Longmont; Sierra Club; Food and Water Watch;
and Earthworks

COURT USE ONLY

v.
Appellees: Colorado Oil & Gas Association,
Colorado Oil and Gas Conversation Commission,
Appellee-Intervenor: TOP Operating Company
Attorneys for Colorado Concern, Denver Metro
Chamber of Commerce, Colorado Competitive
Council, Colorado Motor Carriers Association, and
Colorado Farm Bureau:

Case No.: 2014CA1759

BROWNSTEIN HYATT FARBER SCHRECK, LLP

Jason R. Dunn, #33011
410 Seventeenth Street, Suite 2200
Denver, CO 80202-4432
Phone: 303.223.1100
Emails: jdunn@bhfs.com
AMICI CURIE BRIEF OF COLORADO CONCERN, ET AL. IN
SUPPORT OF APPELLEE COLORADO OIL AND GAS
ASSOCIATION

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:
It contains 3400 words (excluding the caption, table of contents,
table of authorities, this certificate of compliance, certificate of
service, signature block and any addendum).
It does not exceed 30 pages.
The brief complies with C.A.R. 28(k).
For the party raising the issue:
It contains under a separate heading (1) a concise statement of the
applicable standard of appellate review with citation to authority; and
(2) a citation to the precise location 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 Appellee
Colorado Oil & Gas Association agrees with the statements of
Appellants concerning the applicable standard of review and
preservation for appeal, and if not, why not.
I acknowledge that my brief may be stricken if it fails to comply with any of the
requirements of C.A.R. 28 and C.A.R. 32.
/s/ Jason R. Dunn

Table of Contents
Page
I.

The City inaccurately describes the local concern test, both

as a matter of law and as applied by the trial court.......................3

II.

The City incorrectly describes the Supreme Courts test of

local concern ....................................................................................6

III.

The State has a substantial interest in fracking operations,

and the trial court properly considered that interest.....................7
A.

The trial court correctly recognized the States interest

found in the COGCC and fracking rules................................7

B.

The States interests also lie in the economic impacts of

the oil and gas industry and protecting against the
negative consequences of fracking bans ..............................10

C.

The trial court properly analyzed both the Citys and

the States interests, and properly found state
preemption............................................................................14

ii

TABLE OF AUTHORITIES
Page(s)
Cases
Bd. of Cnty. Commrs v. Bowen/Edwards,
830 P.2d 1045 (Colo. 1992)..........................................................8, 9, 16
Colo. Mining Assn v. Bd. of Cnty. Commrs,
199 P.3d 718 (Colo. 1999)....................................................................13
Four-Cnty. Metro. Cap.Improvement Dist. v. Bd. of Cnty.
Commrs,
369 P.2d 67 (Colo. 1962)......................................................................10
People v. Novotny,
2014 CO 18 ............................................................................................8
Prestige Homes, Inc. v. Legouffe,
658 P.2d 850 (Colo. 1983)....................................................................10
Town of Frederick v. N. Am. Res. Co.,
60 P.3d 758 (Colo. App. 2002) .............................................................16
Voss v. Lundvall Bros., Inc.,
830 P.2d 1061 (Colo. 1992).......................................................... passim
Webb v. City of Black Hawk,
2013 CO 9 ............................................................................................16
Statutes
C.R.S. 34-60-102(1) ...............................................................................8
Oil and Gas Conservation Act ...................................................................8

iii

Other Authorities
2 Colo. Code Regs. 4041:100 ...............................................................9
Brian Lewandowski & Richard Wobbekind, Assessment of
Oil and Gas Industry 2012 Industry Economic and
Fiscal Contributions in Colorado (July 2013) ....................................11
Brian Lewandowski & Richard Wobbekind, Hydraulic
Fracturing The Economic Impact of a Statewide
Fracking Ban in Colorado (Mar. 2014) ..............................................12
C.A.R. 29 ................................................................................................1, 4

iv

Pursuant to C.A.R. 29, the entities listed below, through their

undersigned counsel, conditionally file this amici curiae brief in support
of the Plaintiff/Appellees, and state as follows:
THE AMICI CURIAE
The following five organizations (collectively, the Amici Curiae)
seek leave to participate as amici curiae:
(i)

Colorado Concern is an alliance of top executives with a

common interest in enhancing and protecting Colorados
business climate. Founded in 1986 by a dozen committed
business leaders, membership now includes more than 120
CEOs from for-profit, non-profit and higher education
organizations across Colorado.

(ii)

Colorado Competitive Council is a leading business voice

for dozens of companies and trade associations, organized for
the purpose of directly advocating for sound business policies
in Colorado that encourage growth of key industry clusters
and attract high-quality jobs to Colorado.

(iii)

Denver Metro Chamber of Commerce is a leading voice

for over 3,000 Denver-area businesses and their 300,000
employees, providing advocacy for nearly 150 years at the
federal, state and local levels and helping shape Colorados
economic and public policy landscape.

(iv)

Colorado Motor Carriers Association represents over

650 companies and over 60,000 employees that are directly
involved or affiliated with trucking within Colorado. CMCA
supports the interests of these trucking-related companies
on a state, national, and local basis.
1

(v)

Colorado Farm Bureau is a 24,000 member organization

dedicated to helping family farmers and ranchers stay on
their land and continue to produce food for Colorado, the
nation, and the world. CFB provides its members with
continuous representation at the local, state and federal
level to improve Colorados economy, natural resources,
environment, and social institutions.
INTRODUCTION

The Amici Curiae are five Colorado organizations representing a

range of business, trade, and non-profit associations, as well as
chambers of commerce, and family-owned farms. Each is committed to
advancing sound public policy and a strong economy at the state and
local level.

Individually and collectively, they dedicate significant

financial and human resources toward developing state law and policy
that ensures a favorable economic climate for not only their individual
members and their employees, but for the State of Colorado as a whole.
Among the Amici Curiaes shared values is the belief that our
natural resources, including oil and gas, are a critical component of our
States economy. Amici believe that our natural gas and oil resources
must be protected and regulated in such a way as to allow their efficient
development while also guarding the environment and ensuring public

safety.

Given the ubiquitous nature of oil and gas resources across

governmental boundaries, however, it is critical that such development

be regulated uniformly so as to promote efficient, economical, and safe
production.
The Amici therefore submit this brief in support of the Plaintiffs
and for the narrow purpose of addressing that portion of the City of
Longmonts Opening Brief (the Opening Brief) setting forth an
erroneous test for determining when a local government interest
preempts a statewide interest in the same field, to provide the Court
with a brief overview of the oil and gas industrys role in Colorados
economy, and to respond to the Citys statements regarding the extent
and nature of the States interest in supporting and regulating
hydraulic fracturing.
ARGUMENT
I.

The City inaccurately describes the local concern test, both

as a matter of law and as applied by the trial court.
In attacking the trial courts preemption analysis, the City

contends that the court applied an erroneous test for determining

whether a matter is of purely local concern.
3

First, the City

characterizes the test applied by the court as one in which any State
interest in the matter [is] enough to overcome the Citys home rule
authority and thus deem the matter one of statewide or mixed concern.
Opening Br. at 13 (emphasis in original).

The City goes on to contend

that 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]. Id. at 21 (citing City
& Cnty. of Denver v. State, 788 P.2d 764, 771 (Colo. 1990)).
The City misreads the trial courts order and the test it applied.
Stated correctly, the court described the test outlined by the Supreme
Court in Voss v. Lundvall Bros., Inc., 830 P.2d 1061 (Colo. 1992) for
determining whether the matter is one of local, statewide, or mixed
concern:
The threshold consideration in this case, as it was in Voss, is
whether Longmonts total ban of hydraulic fracturing and
ban on storage and disposal of hydraulic fracturing waste
within the City derives from a purely local concern. It is a
well-established principle of Colorado preemption
doctrine that in a matter of a purely local concern an
ordinance of a home-rule city supersedes a conflicting
state statute, while in a matter of purely statewide concern
a state statute or regulation supersedes a conflicting
ordinance of a home-rule city.
4

R. CF, p.2049 (emphasis added) (citing Voss, 830 P.2d at 1066) (internal
quotation marks omitted). After detailing the evidence submitted by
the City and Intervenors demonstrating local interests, the court went
on to state that [w]hile the Court appreciates the Longmont citizens
sincerely-held beliefs about risks to their health and safety, the Court
does not find this is sufficient to completely devalue the States interest,
thereby making the matter one of purely local interest. R. CF, p.2050.
In other words, the court was indicating that while there may very well
be legitimate local interests that rise to a cognizable concern for
purposes of applying a preemption analysis, the extent of those interests
is simply not relevant because the State also has significant interests in
the regulation of fracking that cannot be devalued by local interests,
regardless of how substantial those local interests may be. Thus, the
court was implicitly rejecting a weighing of interests, and instead
properly evaluating whether the matter is one of pure local or statewide
interest, or whether it is one of mixed concern such that the operational
conflicts test was necessary. Finding the latter, the court correctly went
on to apply that test.
5

II.

The City incorrectly describes the Supreme Courts test of

local concern.
In addition to misreading the test as applied by the trial court, the

City compounds its mistake by arguing that the correct test is actually
one in which any local interest preempts any state interest of equal or
lesser weight: 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. Opening
Br. at 12 (emphasis added); see also id. at 1 (A home rule citys law
supersedes a state law if the local interests at stake outweigh the
States interests). 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. Opening Br. at 17 (citing Denver, 788
P.2d at 767). The City then applies its erroneous test, contending that
its interests are strong while the States are weak, and concludes
that Article XVI is a matter of local concern based on the undisputed

facts that preempts the States implicit if not explicit authorization

of fracking.1 Opening Br. at 2223.
While Amici acknowledge, as the trial court did, that the City does
indeed have a legitimate interest in fracking operations, Amici strongly
disagree that the States interest is weak or insignificant.

To the

contrary, Amici write to call attention to the States substantial interest

in the uniform regulation of oil and gas operations and hydraulic
fracturing.
III. The State has a substantial interest in fracking operations,
and the trial court properly considered that interest.
A.

The trial court correctly recognized the States

interest found in the COGCC and fracking rules.

While the City attempts to dismiss the States interest by claiming

that the undisputed evidence shows Article XVI has an insignificant
impact on the states economic interests, those statements are wildly
incorrect. Opening Br. at 22 (citing R. CF, pp.121114). As the trial
court correctly noted, Colorado courts have long recognized the States
Oddly, however, rather than asking this court to rule that Article XVI
preempts state law as matter of purely local concern, the City instead
asks the court to remand the case for further evidentiary proceedings.
Opening Br. at 25.
1

interests in oil and gas development, and more particularly, in the

process of hydraulic fracturing. See R. CF, pp.2042, 2051. There 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 . . . . Voss, 830 P.2d
at 106566 (emphasis added); see also Bd. of Cnty. Commrs v.
Bowen/Edwards, 830 P.2d 1045, 104849, 1058 (Colo. 1992).

The

Colorado Supreme Courts finding of a significant state interest is

binding upon this Court as a matter of law, and to find otherwise would
implicitly overrule the high courts decision in Voss, which lower courts
may not do. See People v. Novotny, 2014 CO 18, 26.
As the trial court correctly noted, the interests discussed in Voss
and its progeny derive from the statutory framework found in the
Colorado Oil and Gas Conservation Act (the Act), wherein the General
Assembly expressed the will of the people to foster the responsible,
balanced development, production, and utilization of oil and gas in the
state, protect against waste, and to safeguard coequal and correlative

rights of owners and producers. See R. CF, p.2051; see also C.R.S.
34-60-102(1).
Likewise, the trial court also correctly acknowledged that those
decisions apply to the technical aspects of the oil and gas production
process, including hydraulic fracturing.

R. CF, p.2048; see also

Bowen/Edwards, 830 P.2d at 1058 (stating that the Act created a

unitary source of regulatory authority at the state level of government
over the technical aspects of oil and gas development and production
[that] serves to prevent waste and protect the correlative rights of
common-source owners and producers to a fair share of production
profits). The State effectuates and protects that interest through its
delegation of authority to the Oil and Gas Conservation Commission
(the COGCC or Commission), where a multitude of fracking-related
rules have been adopted. See, e.g., 2 Colo. Code Regs. 4041:100
(defining hydraulic fracturing additive, hydraulic fracturing fluid,
and hydraulic fracturing treatment), 205 (access to chemical inventory
records), 205A (hydraulic fracturing chemical disclosure), 305 (oil and
gas location assessment notice must include the COGCCs information
9

sheet on hydraulic fracturing treatments except where hydraulic

fracturing treatments are not going to be applied to the well in
question), 317B (public water protection system includes during
completion), 805 (requiring operators to control dust caused by their
operations, including specific controls when handling sand used in
hydraulic fracturing operations).
B.

The States interests also lie in the economic impacts

of the oil and gas industry and protecting against the
negative consequences of fracking bans.

Beyond the interests outlined in the Act and the COGCCs

regulations, the State has a more fundamental interest in protecting
and adequately regulating the oil and gas industry and the fracking
process that stems from the industrys central role in Colorados
economy. Accordingly, any examination of whether a matter is local,
statewide, or of mixed concern should consider these economic interests.
Two recent academic studies provide further insight.2

While Amici is not aware of either report being submitted at the

hearing below, appellate courts may take judicial notice of publically
available information. See Prestige Homes, Inc. v. Legouffe, 658 P.2d
850, 853 (Colo. 1983) (citing C.R.E. 201(f) and cases); Four-Cnty. Metro.
2

10

First, in 2013, the Business Research Division of the Leeds School

of Business at the University of Colorado studied the scope and impact
of the oil and gas industry in Colorado (attached as Exhibit A).3 The
report demonstrates that the oil and gas industry and now fracking
specifically drives a significant portion of the States economy,
employs the largest private sector workforce in the State, generates
significant tax revenue for local governments, and provides significant
funding of public education through property taxes.

Some of the

reports key findings about the industry include:

29,300 direct drilling, extraction and support jobs;

22,000 additional supply chain jobs;

$3.8 billion in employee income;

Average annual wages of over $100,000 (approximately

double state average);

$614 million in royalty payments to private land owners; and

Cap. Improvement Dist. v. Bd. of Cnty. Commrs, 369 P.2d 67, 73 (Colo.
1962).
Brian Lewandowski & Richard Wobbekind, Assessment of Oil and Gas
Industry 2012 Industry Economic and Fiscal Contributions in
Colorado (July 2013), available at: http://www.coga.org/pdf_studies/
UniversityofColorado_LeedsSchoolofBusiness_Oil&NaturalGasIndustry
_EconomicStudy2012.pdf.
3

11

$1 billion in severance and property taxes, public royalties,

and public leases.

Notably, the study concludes with this insightful paragraph:

While our study illustrated the market contributions of the
oil and gas industry, there are many potentially positive and
potentially negative nonmarket economic impacts related to
the oil and gas industry (e.g., locally sourced energy, air
quality,
substitution,
water
usage,
etc.).
While
environmental and societal impacts of this extraction
industry are currently being fiercely debated, the economic
contributions of the industry should be present in the
discussions
calling
for
drilling
moratoriums,
understanding that in Colorado, the industry impacts
thousands of jobs and billions in wages, funds state
and local government (including schools), and makes
purchases from every industry.
Ex. A, p. 22 (emphasis added).
Second, in 2014, the Leeds School conducted a follow-up study,
examining the potential impact of a statewide fracking ban (attached as
Exhibit B).4 Notably, the report assumes a 95% reduction in new and
existing production from a fracking ban, resulting in:

a loss of over 68,000 jobs in first five years following ban;

Brian Lewandowski & Richard Wobbekind, Hydraulic Fracturing

The Economic Impact of a Statewide Fracking Ban in Colorado (Mar.
2014), available at: http://www.coga.org/pdf_studies/EconomicImpact
ofFrackingMoratorium_UniversityColoradoLeedsSchool_March2014.pdf
.
4

12

long term job losses of 93,000;

annual average drop in state GDP of $8 billion;

$567 million drop in government revenue over first five

years, declining $985 million by 2040;

reduced household spending that impacts everything from

construction to retail spending; and

significant negative impacts to virtually all job sectors.

The 2014 study unequivocally demonstrates that a ban on

fracking would have a profound impact on Colorado, its economy, its
public resources, and its citizens. Thus, the interest of the State and Amici as business groups dedicated to a sound economy - is
perhaps at its zenith in this case. The City, however, attempts to
downplay that interest, calling it insignificant. See Opening Br. at 10.
As

the

studies

demonstrate,

the

Court

should

reject

that

characterization as simply nonsensical and disingenuous.

Moreover, while the ban at issue here is municipal rather than
statewide, the lessons of the 2014 study remain applicable here:
allowing municipalities to create a patchwork of bans, moratoriums,
and individualized regulations across the State would surely wreak
havoc on the industry, drive inefficiency and waste, reduce investment
from producers, and ultimately have a negative impact on the State as a
13

whole. See Colo. Mining Assn v. Bd. of Cnty. Commrs, 199 P.3d 718,
731 (Colo. 1999) (A patchwork of county-level bans on certain mining
extraction methods would inhibit what the General Assembly has
recognized as a necessary activity and would impede the orderly
development of Colorados mineral resources.); see also R. CF, p.2048
(Patchwork regulation can result in uneven production and waste.)
C.

The trial court properly analyzed both the Citys and

the States interests, and properly found state
preemption.

While the City contends that the trial court erred by applying the
Colorado Supreme Courts analysis in Voss (Opening Br. at 2325), that
case is dispositive and is binding on this Court. In Voss, the City of
Greeley adopted an ordinance banning the drilling of any oil and gas
well within the city limits. Voss, 830 P.2d. at 1063. In determining
whether Greeleys ban was of local, state, or mixed interest, the court
analyzed four factors: (1) whether there is a need for statewide
uniformity of regulation; (2) whether the municipal regulation has an
extraterritorial impact; (3) whether the subject matter is one
traditionally governed by state or local government; and (4) whether the
14

Colorado Constitution specifically commits the particular matter to

state or local regulation. Id. at 1067. After examining those factors, the
court determined that state law preempted Greeleys ban on oil and gas
drilling:
We conclude that the states interest in efficient oil and gas
development and production throughout the state, as
manifested in the Oil and Gas Conservation Act, is
sufficiently dominant to override a home-rule citys
imposition of a total ban on the drilling of any oil, gas, or
hydrocarbon wells within the city limits.
Id. at 1068.
Here, relying on Voss, the trial court properly characterized both
the interests of the City and the State, properly applied the Voss fourfactor test, and, after recognizing the obvious and legitimate interests of
both the City and the State, properly ruled that the issue is one of
mixed local and state concern. R. CF, pp.204850. Nonetheless, the
City complains that it was not afforded an opportunity to present
further evidence at a full trial and that, if it had been allowed to do so,
the court would have come to a different result. Opening Br. at 25. But
the court correctly found that the interests of both the City and the
State

were

obvious,

having

generally
15

accepted

as

true

the

environmental concerns raised by the City (at least for purposes of the
motion) and adhering to the Supreme Courts findings regarding the
States interests in oil and gas development. R. CF, p.2050.
The City also contends that the trial court applied the improper
conflict test.

Opening Br. at 26.

Again, however, the trial court

properly relied on Colorado Supreme Court precedent in determining

that Article XVI conflicts with State law. As set forth in Webb v. City of
Black Hawk, which was decided only two years ago, whether a homerule ordinance conflicts with State law depends on whether the homerule citys ordinance authorizes what state statute forbids, or forbids
what state statute authorizes. Webb v. City of Black Hawk, 2013 CO 9,
43 (citing Commerce City v. State, 40 P.3d 1273, 1284 (Colo. 2002)).5
The Citys argument that the Bowen/Edwards conflict test applies is
misplaced. Opening Br. at 27. The Bowen/Edwards operational
conflict test is only applicable in cases involving a specific regulation
as opposed to a complete ban like in this case. Compare Town of
Frederick v. N. Am. Res. Co., 60 P.3d 758, 760 (Colo. App. 2002) (trial
court did not err in applying the Bowen/Edwards test to invalidate
town ordinances imposing setbacks, noise mitigation, visual impact
and aesthetics regulation), with Webb, 44 (ordinance forbidding
bicycling without providing a suitable alternate route failed the conflict
test because the state statute authorizes such a prohibition only when
an alternate route is established).
5

16

The trial court in this case applied that test and concluded:

The

operational conflict in this case is obvious. The Commission permits

hydraulic fracturing and Longmont prohibits it. The Commission
permits storage and disposal of hydraulic fracturing waste and
Longmont prohibits it. R.CF, p.205051. Accordingly, the trial court
properly found that Article XVI and the Act are mutually exclusive
because the Citys ban forbids what State law allows. R. CF, p.2051.
Thus, absent this Court finding that the State lacks any concrete
interest in oil and gas development or the regulation of hydraulic
fracturing, the trial courts finding that no further factual development
was necessary and that the State law preempts the Citys ban could
only be correct. This Court should make a similar ruling under its de
novo review.
CONCLUSION
The Citys Opening Brief misstates the test for local concern both
as applied by the trial court and as dictated by the Colorado Supreme
Court, and advocates for a unprecedented test that would allow any
local concern in a matter to preempt all statewide interests in the same
17

field.

Likewise, the City fails to acknowledge the obvious and

substantial interests that the State has in uniform regulation of

hydraulic fracturing and the economic impact that it has on Colorados
economy and well-being. This court should therefore reject the Citys
arguments and affirm the decision of the trial court.
Dated this 5th day of March, 2015
BROWNSTEIN HYATT FARBER SCHRECK, LLP
By:

s/Jason R. Dunn
Jason R. Dunn, #33011

ATTORNEYS FOR AMICI CURIE

COLORADO CONCERN, ET AL.

18

CERTIFICATE OF SERVICE
I certify that on March 5, 2015, I electronically filed a true and
correct copy of the foregoing AMICUS CURIE BRIEF OF
COLORADO CONCERN, ET AL. with the Clerk of Court via the
Colorado ICCES program which will send notification of such filing and
service upon the following counsel of record:
Devorah Ancel
Sierra Club Environmental
Law Program
85 Second Street, 2ndFloor
San Francisco, CA 94105

John E. Matter
Julie M. Murphy
Asst Attorney Generals
1300 Broadway, 10th Fl.
Denver, CO 80203

Thomas J. Kimmell
Zarlengo & Kimmell, PC
700 N. Colorado Blvd.
Suite 598
Denver, CO 80206
Kevin J. Lynch
Environmental Law Clinic
Sturm College of Law
2255 East Evans Ave., Ste 33
Denver, CO 80208

Eric Huber
1650 38th Street, Suite 102W
Boulder, CO 80301

Phillip D. Barber
1675 Larimer Street,
Suite 620
Denver, CO 80202

Mark Mathews
Wayne Forman
Michael Hoke
Brownstein Hyatt Farber Schreck, LLP
410 Seventeenth Street, Ste 2200
Denver, CO 80202

Eugene Mei
Daniel E. Kramer
City of Longmont
Civic Center Complex
408 3rd Avenue
Longmont, CO 80501

/s/ Paulette M. Chesson

Paulette M. Chesson, Paralegal
013585\0009\11971001.3

19