COURT

OF APPEALS, STATE OF COLORADO

2 East 14th Avenue
Denver, CO 80203
DISTRICT COURT, BOULDER COUNTY, COLORADO
District Court Judge D.D. Mallard
1777 6th Street
Boulder, CO 80302
Case No.: 2013CV63

DATE FILED: January 15, 2015 6:24 PM

COURT USE ONLY

Case Number: 2014CA1759

Attorney for Citizen Intervenors Our Health, Our Future,
Our Longmont; Sierra Club; Food and Water Watch;

and Earthworks

Name:
Kevin Lynch (Atty. Reg. #39873)



Brad Bartlett (Atty. Reg. #32816)



LaRona Mondt, Christopher Brummitt,



and Nicholas Rising (Student Attorneys)
Address:
2255 East Evans Avenue, Suite 33



Denver, CO 80208

Phone:
303.871.6140

FAX:
303.871.6847

Email:
klynch@law.du.edu

Attorney for Sierra Club and Earthworks

Name:
Eric Huber (Atty. Reg. # 40664)
Address:
1650 38th Street, Suite 102


Boulder, CO 80301
Phone:
303.449.4494, ext. 101
Email:
eric.huber@sierraclub.org

Appellant: CITY OF LONGMONT, COLORADO

Citizen 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
AppelleeIntervenor:
TOP OPERATING CO.

CITIZEN INTERVENORS OPENING BRIEF

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 9,462 words.
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 such party
agrees with the opponents statements concerning the 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/ Kevin J. Lynch





Kevin J. Lynch

TABLE OF CONTENTS
STATEMENT OF THE ISSUES ................................................................................................... 1
STATEMENT OF THE CASE....................................................................................................... 2
I. NATURE OF THE CASE ........................................................................................................ 2
II. COURSE OF PROCEEDINGS.............................................................................................. 3
III. DISPOSITION OF THE TRIAL COURT ......................................................................... 4
IV. STATEMENT OF THE FACTS ......................................................................................... 4
STANDARD OF REVIEW ........................................................................................................... 11
I. INABLIENABLE RIGHTS .................................................................................................. 11
II. DISPUTED MATERIAL FACTS, INCORRECT LAW, INCORRECT ANALYSIS
........................................................................................................................................................ 12
LEGAL BACKGROUND ............................................................................................................... 13
I. CONSTITUTIONAL RIGHTS ............................................................................................ 13
II. PREEMPTION ..................................................................................................................... 13
SUMMARY OF THE ARGUMENT ........................................................................................... 14
ARGUMENT ................................................................................................................................... 16

ii

I. STATE LAW CANNOT PREEMPT ARTICLE XVI BECAUE IT IS NECESSARY

TO PROTECT THE INALIENABLE RIGHTS OF LONGMONTS CITIZENS. ........ 16
A. Citizens Have Certain Inalienable Rights, Protected by the Colorado
Constitution. ......................................................................................................................... 16
B. Fracking Harms Citizens Inalienable Rights ..................................................... 20
C. Article XVI Addresses the Harms of Fracking ................................................... 21
II. DISPUTES OF MATERIAL FACT PRECLUDE SUMMARY JUDGMENT .......... 22
A. Article XVI Is Not a De Facto Ban on Drilling Because Economic, Efficient
Alternatives to Fracking Exist. ...................................................................................... 22
B. Article XVI Did Not Halt Production in Longmont Because Wells Are
Currently Producing. ......................................................................................................... 24
C. Fracking Cannot be Done Safely in Longmont Because It Is a Harmful,
Dangerous Process and State Regulations Do Not Adequately Protect Local
Harms. ..................................................................................................................................... 25
III. THE TRIAL COURT DID NOT CORRECTLY STATE THE STANDARDS FOR
PREEMPTION IN THIS CASE ............................................................................................. 26

iii

A. Whether a Matter Is One of State, Local, or Mixed Concern Requires

Comparing the State and Local Interests ................................................................. 26
B. The Trial Court Ignored Changes to the State Interest Requiring
Protection of Health, Safety, and Welfare. ............................................................... 29
C. The Correct Governing Law for Determining if There Is Operational
Conflict Is Whether the Regulation Materially Impedes or Destroys the
State Interest. ....................................................................................................................... 31
1. The Court Must Determine Whether the Local Regulation Materially
Impedes or Destroys the State Interest. ................................................................... 32
2. The Trial Court Applied the Wrong Standard for Determining
Operational Conflict. ......................................................................................................... 32
D. The Legal Standard for a Facial Challenge of a Home Rule Municipalitys
Regulation Is Beyond a Reasonable Doubt. ............................................................. 34
1. A Plaintiff Must Prove Beyond a Reasonable Doubt That No Set of
Circumstances or No Possible Construction Exists Where the Regulation Is
Valid. ........................................................................................................................................ 35
2. The Trial Court Erred by Not Applying This Standard .................................. 36

iv

IV. THE TRIAL COURT INCORRECTLY FOUND PREEMPTION IN THIS CASE

........................................................................................................................................................ 37
A. Regulating Fracking in Longmont Is a Matter of Local Concern .............. 37
1. There Is a Strong Local Interest in the Regulation of Fracking Within the
City of Longmont. ............................................................................................................... 38
2. The Effect of Article XVI on the State Interest Is Minimal. ........................... 39
3. Weighing the Significant Local Impacts Against the Minimal State
Interest Results in a Determination That Longmonts Regulations Are a
Matter of Local Concern. ................................................................................................. 44
B. Even if the Matter Is One of Mixed Local and State Concern, There Is No
Operational Conflict. ......................................................................................................... 45
CONCLUSION ................................................................................................................................ 48

TABLE OF AUTHORITIES
Cases
Bd. Of Cnty. Commrs of La Plata v. Colo. Oil & Gas Conservation Commn, 81
P.3d 1119 (Colo. App. 2003) ............................................................................................. 32
Bd. of Cnty. Comm'rs, La Plata Cnty. v. Bowen/Edwards Assocs., Inc., 830 P.2d
1045 (Colo. 1992) ......................................................................................................... passim
City & Cnty. of Denver v. State, 788 P.2d 764 (Colo. 1990) ............................... passim
City of Commerce City v. State, 40 P.3d 1273 (Colo. 2002) ....................................... 13
Colorado Min. Ass'n v. Board of County Com'rs of Summit County, 199 P.3d 718
(Colo. 2009) ....................................................................................................................... 33, 34
Cung La v. State Farm Auto. Ins. Co., 830 P.2d 1007 (Colo. 1992) ......................... 12
Droste v. Bd. of Cnty. Commrs of Pitkin Cnty., 159 P.3d 601 (Colo. 2007) .......... 32
Evans v. Romer, 882 P.2d 1335 (Colo. 1994) .................................................................. 17
Gessler v. Colorado Common Cause, 327 P.3d 232 (Colo. 2014) ............................. 11
Independence Inst. v. Coffman, 209 P.3d 1130 (Colo. Ct. App. 2008) ................... 35
Kaiser Found. Health Plan of Colorado v. Sharp, 741 P.2d 714 (Colo. 1987) ..... 12
Mt. Emmons Mining Co. v. Town of Crested Butte, 690 P.2d 231 (Colo. 1984) . 13,
36

vi

People v. Vasquez, 84 P.3d 1019 (Colo. 2004) ................................................................ 35

Robinson Twp., Washington Cnty. v. Commonwealth, 83 A.3d 901 (Pa. 2013) 18,
19
Rocky Mt. Festivals, Inc. v. Parsons Corp., 242 P.3d 1067 (Colo. 2010) ................ 12
Sanger v. Dennis, 148 P.3d 404 (Colo. Ct. App. 2006) .......................................... 34, 35
Voss v. Lundvall Bros., Inc., 830 P.2d 1061 (Colo. 1992) ................................... passim
Webb v. City of Blackhawk, 295 P.3d 480 (Colo. 2013) ....................................... 14, 33
Statutes
Oil and Gas Conservation Act, C.R.S. 3460101 to 130 (2014) ................. passim
Other Authorities
1994 Colo. Sess. Laws, ch. 317, 1 ..................................................................................... 31
1996 Colo. Sess. Laws, ch. 88, 1 ........................................................................................ 31
2007 Colo. Sess. Laws, ch. 320, 1 ..................................................................................... 31
2007 Colo. Sess. Laws, ch. 320, 2 ..................................................................................... 31
2007 Colo. Sess. Laws, ch. 320, 3 ..................................................................................... 31
COLO. CONST. art. II, 3 ....................................................................................................... 13, 17
COLO. CONST. art. XX, 6 ............................................................................................................ 34
LONGMONT, COLO., art. XVI (2012) ................................................................................ passim
vii

LONGMONT, COLO., CODE OF ORDINANCES. 15.04.020 (2013) ........................................... 40

Memorandum from the Office of Attorney General, Jake Matter, to COGCC,
Director Matthew Lepore, Re: Petition for Rulemaking from Martinez (April
11, 2014) ................................................................................................................................... 43

viii

Citizen Intervenors Our Health, Our Future, Our Longmont; Sierra Club;
Food and Water Watch; and Earthworks (collectively Citizen Intervenors)
respectfully submit this Opening Brief in support of their appeal, requesting
reversal of the lower court decision granting summary judgment in favor of
the appellees.
STATEMENT OF THE ISSUES
1. Faced with a boom in hydraulic fracturing (fracking) across the Front
Range and a lack of state regulation adequate to protect public health, safety,
and welfare, the citizens of Longmont enacted the Longmont Public Health,
Safety and Wellness Act, LONGMONT, COLO., art. XVI (2012) (Article XVI), a
prohibition on fracking in their community in order to protect certain
inalienable rights guaranteed under the Colorado constitution. The trial court
erred by failing to even consider the applicability of the inalienable rights
provision in the Colorado Constitution and by making a finding of preemption
that took away citizens supposedly inalienable rights.
2. The trial court erred by granting summary judgment when genuine
disputes of material fact exist regarding whether a ban on fracking is a de
facto ban on all oil and gas development, whether production has been halted

in Longmont, and whether fracking poses a threat to public health, safety, and
welfare in Longmont.
3. The trial court erred by refusing to consider the local interest in the
regulation of fracking and by applying standards other than the correct
standard for operational conflict preemption: whether the local law materially
impedes or destroys the state interest.
4. The trial court erred in determining fracking in Longmont is an area of
mixed state and local concern when local interests dominate the minimal state
interest, and by finding operational conflict between Article XVI and the
Colorado Oil and Gas Conservation Act, C.R.S. 3460101 (2014) (the Act),
even though Article XVI does not materially impede the state interest, does
not create waste, does not affect correlative rights, but does protect public
health, safety, and welfare.
STATEMENT OF THE CASE
I. NATURE OF THE CASE
The recent boom in oil and gas production has transformed Longmont
into a hub of dangerous industrial activity, fueled by fracking. The industry
has encroached upon residential areas, park, schools, and churches, and a
growing body of research has documented the harms that fracking has on the
2

health and environment of nearby communities. Understandably, people do

not want to live near fracking operations and as a result, nearby property
values drop.
While fracking has ignited conflicts in urban communities, the state
government has failed to protect communities from these industrial impacts.
Instead, citizens have had to rely on their democratic authority; in Longmont,
the citizens became the first city in Colorado to ban fracking through a vote of
the people.
In November 2012, the Citizens of Longmont passed Article XVI, a
citizeninitiated amendment to the City Charter that prohibits the practice of
fracking or the storage of fracking fluid within city limits. R.CF, p.2039. This
case involves a preemption challenge to Article XVI.
II. COURSE OF PROCEEDINGS


Plaintiffs the Colorado Oil and Gas Association (COGA) filed suit
against the City of Longmont (the City) seeking to invalidate Article XVI. The
Colorado Oil and Gas Conservation Commission (COGCC) was joined as a
necessary party and TOP Operating Company (TOP) intervened. Citizen
Intervenors intervened as Defendants. R.CF, p.2038.

Plaintiffs sought summary judgment before the discovery period. R.CF,

pp.450, 547, 655. Citizen Intervenors requested a continuance to enable
discovery to proceed. R.CF, pp.77278. However, the trial court granted only
a limited extension that did not allow for much discovery to occur. R.CF,
p.964. Ultimately, the trial court granted summary judgment in favor of the
Plaintiffs before conducting an evidentiary hearing. R.CF, p.2054.
III. DISPOSITION OF THE TRIAL COURT
On July 24, 2014, the trial court granted Plaintiffs motions for summary
judgment, finding Article XVI invalid as preempted by the Act. R.CF, pp.2038
54. Specifically, the trial court granted declaratory judgment in favor of the
Plaintiffs as a result of operational conflict preemption. R.CF, p.2054. Citizen
Intervenors now appeal the finding of preemption.
IV. STATEMENT OF THE FACTS
Fracking is a completion process, employed after drilling a well bore
but before producing, that oil and gas operators have used in some Colorado
wells since the 1970s. R.CF, pp.19, 3132,1767, 1765. Fracking involves
pumping water, sand, and (typically) hazardous chemicals down a well bore,
under pressure, with the intent of widening underground fissures to allow
more oil and gas to travel to the surface. R.CF, pp.127275, 142627, 1579.
4

The following facts were presented by the City and Citizen Intervenors.
To begin, fracking is a dangerous method of oil and gas production that
endangers the health and safety of Citizen Intervenors.
Endocrine disrupting chemicals are associated with natural gas
operations and particularly modern fracking techniques. R.CF,
pp.127173. These chemicals are associated with adverse health
effects at very low concentrations. Id.
Over 353 chemicals used during the drilling or fracking process in
natural gas operations have been reviewed for their health effects,
including effects on skin, sensory organs, the respiratory system, the
gastrointestinal system, and the brain and nervous system. Id. Many
of the chemicals are also known carcinogens. Id.
Many of the chemicals reviewed are dispersed through the air,
causing air pollution in surrounding communities. Id.
Air sampling research in Garfield County, Colorado examined sixty
one chemicals associated with natural gas development. Id.
Methane, ethane, propane, toluene, formaldehyde, acetaldehyde, and
naphthalene were detected in every sample, and many other
chemicals were identified in at least half of the samples. Id. These
5

samples were traced back to natural gas operations, not roadbased

air pollution. Id.
These chemicals have numerous adverse health effects to the brain
and central nervous system, causing headaches, dizziness, confusion,
memory loss, tingling in extremities, and numbness in arms and legs.
Id. Other more unnoticeable effects are damage to the liver and the
metabolic system, damage to the endocrine system, negative effects
on reproductive health, development in the womb, the immune
system, the respiratory system, and the heart. Id.
Water contamination is also a concern due to spills and other
chemical releases that enter important water bodies. A study by
University of Colorado School of Public Health researchers showed
water samples from sites in Garfield County near wells with spills or
areas of intense natural gas drilling had more hormone activity than
control sites. R.CF, p.1274. Specific chemicals known to be used
during natural gas operations were found in the water. Id.
Local citizens suffering from chronic obstructive pulmonary disease,
thyroid conditions, and asthma fear that fracking will harm their
health. R.CF, pp.22, 24, 27.
6

 Fracking operations emit smoginducing compounds which effect the

local and regional environment. R.CF, pp.10, 22.
Local residents fear explosions at fracking sites, which have
happened in other places in the state, would endanger their safety.
R.CF, pp.22, 24.
Use, storage, and transportation of fracking fluids creates a risk of
spills and leaks in the local community. R.CF, pp.10, 24, 30.
Numerous spills have occurred across Colorado, contaminating
water and soil with oil and toxic chemicals such as benzene, toluene,
and xylene. R.CF, p.10.
Some Longmont residents moved to the City to escape the booming
oil and gas development happening elsewhere in the region, such as
in Weld County or the city of Firestone. R.CF, p.10. One resident
suffered health problems that he attributes to the oil and gas
activities surrounding his home. Id. Moving away from areas of
intense drilling and fracking have allowed this resident to recover
from his previous health problems. Id.

Next, fracking causes physical and economic harm to the property of

Citizen Intervenors:
7

 Fracking causes a decrease in property values, which is attributed

both to proximity to well sites and views of the sites from homes.
R.CF, pp.13, 22, 24, 27, 30, 109596, 1206.
Nearby fracking operations reduce the willingness of prospective
homebuyers to submit a bid on a home. R.CF, pp.1096, 1206. For
those buyers who would submit a bid despite proximity to fracking
operations, the offers are greatly discounted. Id.
Nearby fracking sites can cause properties to remain on the market
for extended periods of time or the ultimate failure of sales. R.CF,
p.1095. Extended sales periods incur costs for property owners in
terms of maintenance, mortgage payments, property taxes,
insurance, and HOA fees. Id.
Real estate agents advise clients to consider existing and proposed
fracking sites as comparable to industrial zoned areas, airports, or
railroad tracks. R.CF, p.1205.
Fracking in Longmont would have negative impacts on small
businesses. R.CF, p.19.

 Fracking operations in Longmont may cause some residents to move

away out of fear of the risks to their health and safety. R.CF, p.27;
R.CF, p.19.

In addition, fracking negatively affects the liberty and happiness of

Citizen Intervenors:
The noise and disruption caused by the heavy industrial activity of
fracking and associated activity reduce local citizens use and
enjoyment of their homes and property. R.CF, pp.13, 22, 24.
Fracking utilizes huge volumes of water that could otherwise be used
for less harmful or even beneficial purposes. R.CF, p.13, 24.
Many residents moved to Longmont to enjoy a quiet, healthy,
beautiful, and safe environment. R.CF, pp.2223. Fracking threatens
to undermine this expectation. R.CF, p.15.
Fracking operations near Union Reservoir and other open spaces in
Longmont would interfere with recreational use of those places,
endanger the health of people using the area, and threaten wildlife
and their habitats. R.CF, pp.15, 24, 15, 18, 27.
There are genuine issues of material fact regarding alternatives to
fracking:
9

 Fracking is more dangerous to local residents health, safety, and

welfare than other methods for extracting oil and gas. R.CF, pp.15, 21.
Jim Hughes discussed a process called underbalanced drilling that is a
well completion technique that does not require fracking. R.CF, pp.44,
1428. Evidence was presented that underbalanced drilling can be more
economic than fracking. R.CF, pp.44, 1429.
In his deposition, Murray Herring stated that there are wells that are
completed without fracking. R.CF, pp.90506. Likewise, plaintiff
appellees affiant agreed that fracking has been around since the 1970s
and between 2004 and 2014 nearly 20% of wells were completed
without fracking. R.CF, pp.4, 1747.
Mary Ellen Denomy presented evidence that nonfracked wells in Weld
County actually exceeded income of fracked wells in Longmont. R.CF,
p.1213.
Oil and gas production in Longmont has only a de minimis impact on the
state interest.
Longmont occupies about 27.6 out of 104,000 square miles in
Colorado. R.CF, p.1212.
10

Ten to 12 wells are currently producing in Longmont, out of over

50,000 drilled in Colorado in recent years. R.CF, pp.1212, 1215,
1765.

The City of Longmont has collected an annual average of $132,000 in

taxes from the wells located within the city limits. With an annual
budget in 2013 of $228,600,000, this amounts to .0006 or .06% of
the total budget. R.CF, p.1214.

Other alternatives exist including propellant well simulation, with

more alternatives being developed. R.CF, p.1317.
STANDARD OF REVIEW
I. INABLIENABLE RIGHTS
Interpreting constitutional language on appeal, courts review this
question of law de novo. Gessler v. Colorado Common Cause, 327 P.3d 232, 235
(Colo. 2014). This issue was raised at R.CF, pp.102931 and the trial court
dismissed it at R.CF, p.2040.

11

II. DISPUTED MATERIAL FACTS, INCORRECT LAW, INCORRECT ANALYSIS

On a motion for summary judgment, the moving party has the burden of

establishing the absence of disputed material facts, and all doubts as to the
existence of such facts must be resolved against the moving party. Cung La v.
State Farm Auto. Ins. Co., 830 P.2d 1007, 1019 (Colo. 1992). Additionally, a
party against whom summary judgment is sought is entitled to the benefit of
all favorable inferences that may be drawn from the undisputed facts. Kaiser
Found. Health Plan of Colorado v. Sharp, 741 P.2d 714, 718 (Colo. 1987) (en
banc).
Review of the trial court's order granting appellees motion for
summary judgment should be reviewed de novo, keeping in mind that
summary judgment is appropriate only when the pleadings and supporting
documents show there is no genuine issues of any material fact. Rocky Mt.
Festivals, Inc. v. Parsons Corp., 242 P.3d 1067, 1074 (Colo. 2010). The issue of
disputed material facts were raised at R.CF, pp.102022 and ruled upon at
R.CF, p.2054. The issue of the correct preemption law to apply was raised at
R.CF, pp.101115 and ruled upon at R.CF, pp.204045, 54. The application of
the law to the facts of this case was raised at R.CF, pp.102337 and ruled upon
at R.CF, pp.204854.
12

LEGAL BACKGROUND
I. CONSTITUTIONAL RIGHTS

The Colorado Constitution protects citizens inalienable rights upon
which state law cannot infringe. Specifically, the Bill of Rights to the Colorado
Constitution states [a]ll persons have certain natural, essential and
inalienable rights, among which may be reckoned the right of enjoying and
defending their lives and liberties; of acquiring, possessing and protecting
property; and of seeking and obtaining their safety and happiness. COLO.
CONST. art. II, 3. The state legislature cannot preempt citizens inalienable
rights.
II. PREEMPTION


Preemption presents mixed questions of law and fact. See Mt. Emmons
Mining Co. v. Town of Crested Butte, 690 P.2d 231, 23839 (Colo. 1984). Courts
have rejected a categorical approach to the preemption analysis. City of
Commerce City v. State, 40 P.3d 1273, 1282 (Colo. 2002). To determine if a
state statute preempts a home rule citys local law, the court must first
determine if the matter is of local, state, or mixed concern. See Voss v. Lundvall
Bros., Inc., 830 P.2d 1061, 1066 (Colo. 1992). If it is a matter of local concern,

13

a local regulation supersedes the state statute. Id. To make this

determination, a court must draw a legal conclusion based on all the facts
and circumstances presented by a case. Id. (emphasis added). If deemed to
be a mixed local and state issue, a local regulation may coexist with a state
statute as long as there is no conflict between the two. Id. Under
Bowen/Edwards, operational conflict occurs when effectuation of the state
interest materially impedes or destroys the state interest. Bd. of Cnty.
Comm'rs, La Plata Cnty. v. Bowen/Edwards Assocs., Inc., 830 P.2d 1045, 1059
(Colo. 1992). This determination can only be done on a fully developed
factual record. Id. at 1060; see also City & Cnty. of Denver v. State, 788 P.2d
764, 76768 (Colo. 1990); Webb v. City of Blackhawk, 295 P.3d 480, 486 (Colo.
2013).
SUMMARY OF THE ARGUMENT
The Colorado Constitution unambiguously protects citizens rights
to their health, safety, property, liberty, and happiness. Neither the
state legislature nor the Act may preempt the inalienable rights that
Article XVI protects. Therefore, the inalienable rights that citizens enjoy
preclude any preemption analysis between Article XVI and the Act,
14

because Article XVI is necessary to protect citizens from harm due to

fracking in their community.
In addition, the trial court erred in its preemption analysis. For
one, genuine issues of material fact exist that preclude summary
judgment. These issues include: whether Article XVI is a de facto ban on
drilling, whether Article XVI halted production in Longmont, and
whether fracking can be done safely in Longmont. Further, the trial
court incorrectly framed the Colorado Supreme Courts preemption
standards as stated in in Voss, Bowen/Edwards, and City of Denver,
failing to assess the local interest in regulating fracking and overlooking
the state interest in protection of public health, safety, and welfare.
Finally, the trial court incorrectly found an operational conflict between
Article XVI and the Act, even though the evidence before the court
shows that Article XVI can be harmonized with the Act.
As a result of these errors, this Court should vacate the trial
courts decision and remand with instructions for the court to consider
the application of Citizen Intervenors inalienable rights to this case, to
apply the correct preemption standards, and to conduct an evidentiary

15

hearing in order to make the factual findings necessary to rule on the

preemption claims.
ARGUMENT
I. STATE LAW CANNOT PREEMPT ARTICLE XVI BECAUE IT IS NECESSARY
TO PROTECT THE INALIENABLE RIGHTS OF LONGMONTS CITIZENS.
Citizens have certain natural, essential and inalienable rights.
Fracking in Longmont endangers these rights, and the citizens of
Longmont reasonably determined that a prohibition on fracking is
necessary to protect their rights. Therefore, neither the state legislature
nor the Act may preempt Article XVI.
A. Citizens Have Certain Inalienable Rights, Protected by the
Colorado Constitution.
The Colorado Constitution unambiguously protects citizens rights
to their health, safety, property, liberty, and happiness and allows
citizens to protect these rights. The Inalienable Rights provision of the
Colorado Constitution states:
All persons have certain natural, essential and inalienable rights,
among which may be reckoned the right of enjoying and
defending their lives and liberties; of acquiring, possessing and
protecting property; and of seeking and obtaining their safety
and happiness.

16

COLO. CONST. art. II, 3 (emphasis added). Thus, the Colorado

Constitution allows citizens to protect themselves and their property
from activities that threaten their inalienable rights. In fact, Article XVI
is a citizeninitiated charter amendment passed by the citizens of
Longmont, who reasonably determined fracking to be harmful to their
property, property values, public health, safety and welfare, and the
environment of Longmonts citizens. R.CF, p.263; LONGMONT, COLO., art.
XVI, 16.1 (2012). Further, Colorado courts afford citizenpassed
initiatives, such as Article XVI, deference in favor of their
constitutionality. See Evans v. Romer, 882 P.2d 1335, 1361 (Colo. 1994)
(Erickson J., concurring).

The inalienable rights the citizens of Longmont seek to protect are

inherent and natural. The trial court misrepresented Citizen

Intervenors argument that Article XVI protects inalienable rights by
conflating the Colorado Constitution with the public trust doctrine.
R.CF, p.2040 n.2. In fact, Citizen Intervenors look to the Colorado
Constitution as the basis for this argument, which the Constitution itself
notes exist naturally. COLO. CONST. art. II, 3.

17

Neither the state legislature nor the Act can take away citizens

inalienable rights. Citizens inalienable rights reign supreme over any state
statute. If a court finds an action protecting inalienable rights is preempted by
a state statute, the court is effectively denying citizens these inalienable rights.
Only by ignoring the inalienable rights of citizens could the trial court find that
the Act preempts Article XVI. The trial courts interpretation of the Act would
allow the state legislature and the oil and gas industry to infringe upon the
inalienable rights of citizens. On the contrary, the Colorado Constitution
guarantees citizens the ability to protect their inalienable rights including
protecting themselves from the dangers of fracking.
The court must consider constitutional rights before engaging in a
preemption analysis. While Colorado courts have focused little attention to
the inalienable rights provision previously, that does not mean it is a hollow
promise. Due to the lack of case law on point in Colorado, consideration of
how other states have treated comparable provisions is helpful. In
Pennsylvania, the state Supreme Court found a similarly broad constitutional
provision, which had not previously been applied by the courts, prohibited the
state legislature from preempting local regulations on fracking. Robinson
Twp., Washington Cnty. v. Commonwealth, 83 A.3d 901, 94650 (Pa. 2013)
18

(discussing environmental rights as an indefeasible right guaranteed to all

citizens of Pennsylvania). There, the Pennsylvania state legislature attempted
to expressly prohibit local regulation of fracking, but the Pennsylvania
Supreme Court gave meaning to the Environmental Rights Amendment and
limited the state legislatures ability to take away citizens constitutional
rights. Id. at 94950 (discussing the difficulty of the task of constitutional
interpretation, along with its necessity); see also id. at 96364 (discussing how
previously this prevision had be realized by legislative enactments and
executive agency action, but now the court was called upon to address the
underlying understanding of the provision).The court held that the state could
not prohibit local governments from regulating industry to protect their
communities. Id. at 978, 982, 985.
Although application of the inalienable rights provision to this context is
novel, the courts have an obligation to state what the law is and how it applies
to the facts of this case. Previous preemption cases relied upon by the trial
court, including Voss, Summit County, and Bowen/Edwards, did not address the
inalienable rights provision. The reason for this is simple: the argument was
never presented in those cases. However, now that the argument has been
raised in this case, the courts have a duty to declare what the law is and to
19

decide if Longmonts citizens reasonably determined that a prohibition on

fracking was necessary to protect their inalienable rights.
B. Fracking Harms Citizens Inalienable Rights
Fracking endangers the health and safety of citizens, causes economic
and physical harm to property, and negatively affects the liberty and
happiness of citizens who live and recreate in Longmont. Citizen Intervenors
produced ample evidence of the harms caused by fracking that the trial court
did not address.
For one, fracking is a dangerous method of oil and gas production that
endangers the health and safety of citizens. Fracking introduces endocrine
disrupting chemicals, as well as hundreds of other chemicals that have
numerous health effects on skin, breathing, and the brain. Fracking also
causes air pollution, water contamination, and is more dangerous to local
residents than conventional oil and gas production methods. Use, storage, and
transportation of fracking fluids creates a risk of spills and leaks in the local
community. The emissions, noise, and traffic created by fracking operations
negatively impact the local communitys health and safety.
Second, fracking causes physical and economic harm to the property of
citizens by decreasing property values, reducing chances of selling property,
20

affecting views from homes, negatively impacting small businesses, and

causing some residents to move away out of fear of the risks to their health
and safety.

Additionally, fracking negatively affects the liberty and happiness of

citizens because it increases noise and disruption caused by the heavy

industrial activity, interferes with outdoor recreation, negatively impacts air
quality, ecosystems, wildlife, and can decrease quality of life. Additionally,
that the risk of explosions at fracking sites endangers their safety.
C. Article XVI Addresses the Harms of Fracking
A ban on fracking is reasonably necessary to protect Longmonts
Citizens inalienable rights. In fact, Longmont is not alone in taking action to
protect themselves from the harms of fracking. Other Colorado localities have
also placed moratoria on fracking (Broomfield, Fort Collins, Boulder, Boulder
County) or banned fracking (Lafayette). Additionally, the state of New York
placed a moratorium on fracking across the entire state because of concerns
regarding the health and safety of the activity. R.CF, p.1122. Recently, New
York banned fracking outright over these concerns.
http://www.dec.ny.gov/press/100055.html.

21

Because the citizens of Longmont enacted Article XVI to protect their

inalienable rights, neither the state legislature nor the Act may preempt it.
Longmont citizens reasonably determined that Article XVI was necessary to
protect their inalienable rights. Therefore, this Court should remand to the
trial court with instructions on how to apply the inalienable rights provision
to this case.
II. DISPUTES OF MATERIAL FACT PRECLUDE SUMMARY JUDGMENT

The trial court rushed to judgment in this case, ruling on summary

judgment without allowing discovery to proceed and making factual findings

despite disputes of fact. These disputes of material fact include: (1) whether
Article XVI is a de facto ban on drilling; (2) whether Article XVI halted
production in Longmont; and (3) whether fracking can be done safely in
Longmont. This Court should reverse summary judgment because disputed
facts exist.
A. Article XVI Is Not a De Facto Ban on Drilling Because Economic,
Efficient Alternatives to Fracking Exist.
Evidence before the trial court shows that alternatives to fracking exist,
meaning that Article XVI is not a de facto ban on drilling. The City presented
evidence of underbalanced drilling, an alternative that allows for recovery of
22

the resource with less impacts on the local community. R.CF, p.1316. Other
alternatives exist, including propellant well stimulation, with more
alternatives being developed. Id.
Even though the Plaintiffs abandoned their contention that Article XVI
was a de facto ban on all oil and gas development, the trial court nevertheless
relied upon their conclusory assertions rather than acknowledging the
contradictory evidence presented by Citizen Intervenors and the City. R.CF,
p.2052. The trial court stated, TOP will not and cannot economically drill and
complete these wells without . . . [fracking]. R.CF, p.2052. Citizen Intervenors
deposition of Murray Herring proves this is merely a conclusory statement
with no factual basis. First, Mr. Herrings process for determining economic
drilling was nothing more than speculation. R.CF, p.916. Moreover, in his
deposition Mr. Herring concedes the only option TOP has ever considered is
fracking. Id. Thus, this conclusion does not support the judges finding.
Stating that fracking is the only process used or examined is not the same as
proving it is the only possible means to economically drill wells.
The trial court also made a simple logical error in dismissing the
evidence of alternatives to fracking. The court stated [w]hile defendants
were able to identify some wells in Colorado that produced oil and gas
23

without fracking, it is undisputed that fracking results in efficient production

of oil and gas. R.CF, p.2052. Even if fracking does result in efficient
production, that conclusion is logically irrelevant to the question of whether a
ban on fracking prevents the efficient development and production of oil and
gas resources, id., if other methods also allow for efficient production. By the
trial courts logic, because incandescent lightbulbs produce light, a ban on
such bulbs would be a de facto ban on all lighting, even though alternatives
lightbulbs exist.
Even the trial court agreed this was a material fact, and so it erred when
it resolved the factual dispute against the nonmoving parties.
B. Article XVI Did Not Halt Production in Longmont Because Wells
Are Currently Producing.
The trial court erred when it concluded that production had ended in
Longmont and therefore Article XVI necessarily conflicts with the state
interest in production. Citizen Intervenors presented evidence that oil and
gas production has not ended in Longmont. At least 10 wells are producing in
Longmont currently. R.CF, p.1648. The trial court stated that Article XVI
ended production in Longmont, thereby virtually destroying the state interest
in production. R.CF, p.2052. The trial courts finding is simply wrong. The
24

states interest in production cannot be destroyed if production is still

occurring. This incorrect conclusion was disputed by Citizen Intervenors and
is material to the correct analysis of the states interest in operational conflict.
C. Fracking Cannot be Done Safely in Longmont Because It Is a
Harmful, Dangerous Process and State Regulations Do Not Adequately
Protect Local Harms.
Citizen Intervenors presented evidence of the harms of fracking and
disputed the adequacy of existing state regulations. Fracking is an inherently
dangerous process that brings about health and safety concerns. R.CF, p.1005.
Chemicals from exploration, extraction, and transportation are harmful to the
air, ground, and water near fracking sites. R.CF, pp.1000, 1003. Fracking is
more dangerous to local residents than other extraction methods. R.CF,
p.1004. Additional harms from fracking were presented to the trial court, as
laid out in the factual background.
The safety of fracking is relevant in analyzing the legal issues. The safety of
fracking is material in determining whether the subject matter of Article XVI is
a matter of local, state, or mixed concern because it describes local impacts.
Furthermore, it is material in examining the states interest in promoting
health, safety, and welfare under an operational conflict analysis. Finally, the
safety of fracking is also material in determining that Article XVI was a
25

reasonable exercise of citizens inalienable rights. The trial court incorrectly

stated it was not in a position to agree or disagree with this evidence. R.CF,
p.2050. Quite the contrary, at summary judgment the trial court is required to
take the evidence of the dangers of fracking as true, which precludes a finding
of preemption.
III. THE TRIAL COURT DID NOT CORRECTLY STATE THE STANDARDS FOR
PREEMPTION IN THIS CASE
The trial court used incorrect legal standards in its preemption analysis.
Specifically, the court did not (1) weigh the local interests against the state
interests, (2) acknowledge changes to the state interest, (3) use the
materially impedes or destroys standard to determine operational conflict,
or(4) require Plaintiffs to meet their burden for a facial challenge. Citizen
Intervenors urge this Court to reverse summary judgment and remand with
instructions on correct standards for the trial court to use.
A. Whether a Matter Is One of State, Local, or Mixed Concern
Requires Comparing the State and Local Interests
The initial inquiry for preemption is whether the matter is one of local,
mixed, or state concern. While some courts have considered only the state
interest where no evidence was presented on the local interest, no court has

26

ever before held that local interests are irrelevant. Remarkably, the trial court
in this case refused to consider evidence of the local interest.
The Colorado Supreme Court has made clear that in order to determine
if a matter is of state, mixed, or local concern, the courts must weigh the
relative interests of the state and the home rule municipality in regulating the
matter at issue. Denver v. State, 788 P.2d at 768. The court laid out four
factors that had been used previously to assess the state interest: uniformity,
extraterritorial impacts, traditional governance, and specific commitment in
the Constitution. Id. at 768. Yet the Court also explicitly went on to weigh the
state interest against the local interest in the matter. Id. at 77072.
The confusion in this case apparently arises from the simple fact that
two years later, the Colorado Supreme Court evaluated only the state interest
factors in Voss. In that case, the court cited the same four factors from Denver
v. State as being useful in the preemption analysis. Voss, 830 P.2d at 1067.
But the court in Voss never said that local interests were now irrelevant to the
preemption analysis. If such a dramatic change in preemption law had been
intended, the court would have explicitly said so. While it is true that the Voss
court did not weigh the local interest against the state interest in that case, the
reason is that no evidence was before the court regarding the local interest.
27

Local interests vary based on the case and matter at hand. The Denver v.
State court found the Home Rule Amendment to the Colorado Constitution as
well as testimony by the mayor to be relevant for establishing the local
interest in a municipal employee residency restriction. Denver v. State, 788
P.2d at 771. Specifically, the court highlighted language in Article XX
discussing control of municipal offices. Id. The court also weighed testimony
from the mayor discussing local interests in increasing the investment of city
tax dollars, in having employees readily available in the event of an
emergency, and in promoting more attentive, compassionate, and diligent
employee work. Id. The court especially favored the last argument as it gave
employees a stake in the common enterprise of municipal government. Id.
The court found all of these arguments to be valid evidence of the local
interest. Id.

By relying only on the factors applied in Voss, the trial court failed to

weigh the state interest against the local interest and failed to consider other
relevant factors in determining whether Longmonts regulations are of local,
mixed, or state concern. Although Citizen Intervenors presented ample
evidence of the local interest, the trial court stated it is not in a position to
agree or disagree with any of these exhibits that support the Defendants
28

position that hydraulic fracturing causes serious health, safety, and

environmental risks. R.CF, p.2050. However, a proper analysis requires
contrasting the state interest with the local interest.
B. The Trial Court Ignored Changes to the State Interest Requiring
Protection of Health, Safety, and Welfare.
The state interest in this case is set forth by the Legislature in the
applicable state statute. The trial court incorrectly stated the relevant
provisions from the Act by leaving out critical language that requires
consideration of health and the environment in the operational conflict
analysis. As a result, the trial court essentially applied the 1992 state
interest, which was later changed by the Colorado Legislature. Applying the
current, correct standard requires a different result.

The trial court stated:

The General Assembly declared that it is in the public interest to:

(I) Foster the responsible, balanced development, production, and
utilization of natural resources of oil and gas in the state of
Colorado . . . (II) Protect against waste. . . (III) Safeguard, protect
and enforce the coequal and correlative rights of owners and
producers in a common source or pool of oil and gas . . . C.R.S.
3460102(1)(a)(I), (II), and (III). Further it is the intent and
purpose of this article to permit each oil and gas pool in Colorado
to produce up to its maximum efficient rate of production, subject
to the prevention of waste . . . C.R.S. 3460102(1)(b).

R.CF, p.2051.
29

The correct statement of the state interest with omitted portions

emphasized is:
(1) (a) It is declared to be in the public interest to:
(I) 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; . . . (emphasis added)

C.R.S. 3460102(1)(a)(I) (2014).

(b) . . . It is the intent and purpose of this article to permit each oil and gas
pool in Colorado to produce up to its maximum efficient rate of
production, subject to the prevention of waste, consistent with the
protection of public health, safety, and welfare, including protection
of the environment and wildlife resources, and subject further to the
enforcement and protection of the coequal and correlative rights of the
owners and producers of a common source of oil and gas, so that each
common owner and producer may obtain a just and equitable share of
production therefrom (emphasis added).

C.R.S. 3460102(1)(b) (2014).

By omitting the operative language on health and the environment from
the statute, the trial court was able to apply by rote Voss and Bowen/Edwards
to reach her conclusions. But since these 1992 opinions, the Colorado
Legislature has passed numerous amendments to the Act explicitly favoring
local control and underscoring the need for greater health and safety
protections. The Legislatures amendments in 1994, 1996, and 2007
30

mandated provisions that emphasized the protection of health, safety, and

welfare, and underscore and protect local governments land use authority.
1994 Colo. Sess. Laws, ch. 317, 1; 1996 Colo. Sess. Laws, ch. 88, 1; 2007
Colo. Sess. Laws, ch. 320, 1.
The Legislatures 2007 amendments also placed emphasis on promoting
health, welfare and safety by changing the (1) public interest to foster the
responsible, balanced development of oil and gas and (2) development be
performed in a manner consistent with the protection of public health, safety,
and welfare, including protection of the environment and wildlife resources.
2007 Colo. Sess. Laws, ch. 320, 2 and 3.
C. The Correct Governing Law for Determining if There Is
Operational Conflict Is Whether the Regulation Materially Impedes or
Destroys the State Interest.
If a court determines an issue to be a matter of mixed concern, a local
regulation is only preempted if its operational effect would conflict with state
statute. Bowen/Edwards, 830 P.2d at 1056. The determination of whether a
conflict exists must be resolved on an adhoc basis under a fully developed
evidentiary record. Id. at 1060.
//
//
31

1. The Court Must Determine Whether the Local Regulation

Materially Impedes or Destroys the State Interest.
Operational conflict preemption occurs when effectuation of the local
interest would materially impede or destroy the state interest.
Bowen/Edwards, 830 P.2d at 1059. In the oil and gas context, if a home rule
municipality enacts regulations that do not frustrate and can be harmonized
with the stated goals of the Act, the citys regulations should be given effect.
Voss, 830 P.2d at 1068. Absent a direct conflict with the state statute, courts
must attempt to harmonize the state and local law to the extent possible.
Droste v. Bd. of Cnty. Commrs of Pitkin Cnty., 159 P.3d 601, 607 (Colo. 2007).
As such, the Act does not preempt every conflicting local regulation, but only
ones which materially impede or destroy the state interest. Bd. Of Cnty.
Commrs of La Plata v. Colo. Oil & Gas Conservation Commn, 81 P.3d 1119,
1123 (Colo. App. 2003).
2. The Trial Court Applied the Wrong Standard for Determining
Operational Conflict.
Although some cases, applying statutes significantly different from the
Act, have stated the operational conflict test differently, the trial court erred
by deviating from the standard laid out in Bowen/Edwards. The legal
standard for operational conflict is not prohibiting what the state allows. The
32

trial court stated, The operational conflict in this case is obvious. The
Commission permits hydraulic fracturing and Longmont prohibits it. R.CF,
p.2051. This analysis presumably comes from two cases cited in the trial
courts decision: Webb and Summit County. In order to fit our case, the trial
court stretches language from these cases and suggests a local government
cannot forbid what a state statute fails to mention and a state regulation does
not prohibit. This goes too far. The court should instead have applied the
familiar test for operational conflict found in Bowen/Edwards.
The cannot prohibit what state statute authorizes test is inappropriate
in the fracking context because the state statute does even mention fracking,
let alone explicitly authorize it. Thus this case is readily distinguished from
Webb and Summit County, where the relevant state statute did expressly
address the activities in question. In Webb, the state statute authorized
municipalities to prohibit bicycles from traveling on city roads only if an
alternate route was provided, and the city did not comply with this explicit
requirement. Webb, 295 P.3d at 485. In this case, the Act does not even
mention fracking let alone limit the circumstances under which it may be
prohibited. Likewise, in Summit County, the Court found the local ordinance to
be a reclamation standard. Colo. Mining Assn v. Bd. of Cnty. Commrs of Summit
33

Cnty., 199 P.3d 718, 734 (Colo. 2009). In that case, the Mined Land
Reclamation Board was given explicit authority to regulate reclamation
standards. Id. Here, the Act gives no explicit authority to anyone to regulate
fracking.
In order to apply this standard in this case, the trial court had to contort
the word authorize beyond all recognizable meaning. The Act does not
authorize fracking by failing to mention it. Furthermore, although state
regulations under the Act have not yet prohibited fracking, that is not the
same as authorizing fracking.
D. The Legal Standard for a Facial Challenge of a Home Rule
Municipalitys Regulation Is Beyond a Reasonable Doubt.
The home rule Amendment grants home rule cities a right of self
government in both local and municipal matters, and further provides these
local ordinances shall supersede within the territorial limits ... any law of the
state in conflict therewith. COLO. CONST. art. XX, 6. Whether a home rule
citys regulation is preempted is a constitutional question. See Voss, 830 P.2d
at 1061; see also Summit County, 199 P.3d at 723. In assessing the
constitutionality of a statute there are two kinds of challenges, facial and as
applied. Sanger v. Dennis, 148 P.3d 404, 41011 (Colo. App. 2006).
34

1. A Plaintiff Must Prove Beyond a Reasonable Doubt That No Set

of Circumstances or No Possible Construction Exists Where the
Regulation Is Valid.

A plaintiff must establish that the regulation is impermissible. A facial

challenge is one that seeks to render a regulation utterly inoperative by

requiring the plaintiff to establish beyond a reasonable doubt that no set of
circumstances exists in which the regulation can be applied in a permissible
manner. Sanger, 148 P.3d at 411 (emphasis added); see also People v. Vasquez,
84 P.3d 1019, 1021 (Colo. 2004) (en banc). This is a high bar and courts
traditionally disfavor facial challenges. Independence Inst. v. Coffman, 209 P.3d
1130, 1136 (Colo. App. 2008). Plaintiffs sought to invalidate Article XVI on the
basis of a facial challenge only. R.CF, p.2040.
In the oil and gas context, the legal standard for preemption is: Where
no possible construction of the [local] [r]egulations may be harmonized
with the state regulatory scheme the regulation is invalid. Bd. of Cnty.
Comm'rs of Gunnison Cnty. v. BDS Int'l, LLC., 159 P.3d 773, 779 (Colo. 2006)
(emphasis added). In BDS, the court further stated: we will construe the
County Regulations, if possible, so as to harmonize them with the applicable
state statute or regulations. Id. There the court relied on Bowen/Edwards
and Frederick in rejecting plaintiffs proposition that if a state regulation
35

concerns a particular aspect of oil and gas operations, then any county
regulations in that area are automatically invalid. Id.
2. The Trial Court Erred by Not Applying This Standard.
The trial court did not mention or apply the reasonable doubt standard
that would have required Plaintiffs to meet their affirmative burden by
showing no set of circumstances under which Article XVI can be harmonized
with the state interest.
The trial court assumed the state interest in uniform regulation and that
the mere existence of Article XVI harms the state interest set forth in the Act.
That is not sufficient for summary judgment. See Mt. Emmons Mining Co. at
241. There, the court was dealing with a local ordinance requiring mining
companies to get water permits from the town. Id. at 234. The Colorado
Supreme Court recognized this involved mixed questions of law and fact,
and reversed the court of appeals judgment for the mining company and
remanded for findings of fact. Id. at 234. There are unresolved factual
questions relating to the existence, nature, and extent of any injury that [the
plaintiffs] might conceivably sustain under [the] permit. Id. at 241. As the
Mt. Emmons court held, the mere existence of the ordinance was not
enough on which to base summary judgment. Id. (emphasis added).
36

Moreover, the Plaintiffs and the trial courts reliance on dicta in

Bowen/Edwards discussing possible operational conflict of technical aspects is
misplaced. See R.CF, pp.204142. Immediately following discussion of
technical aspects the court states that for operational conflict, [a]ny
determination . . . must be resolved on an ad hoc basis under a fully developed
evidentiary record. Id.
IV. THE TRIAL COURT INCORRECTLY FOUND PREEMPTION IN THIS CASE

Aside from relying on the incorrect law in making a preemption

determination, the trial court also erred in applying the law to the facts of this
case. First, the regulation of fracking is a matter of local concern. As a result,
Article XVI supersedes the Act. Second, if this Court determines it to be a
matter of mixed concern, this Court should find that Article XVI and the Act do
not conflict in operation and can be harmonized. Therefore, this Court should
reverse the trial court on the merits of its decision and remand this case for a
full evidentiary hearing.
A. Regulating Fracking in Longmont Is a Matter of Local Concern
Weighing the significant local impacts against the negligible state
interest, this Court should find that Longmonts regulations are a matter of
local concern. As a matter of local concern, the local regulation supersedes the
37

state regulation. Any evaluation of the states interests must keep in mind the
de minimis impact Longmonts oil and gas reserves would contribute to the
state. Longmont currently has only 1012 of the over 50,000 wells producing
oil within the state. R.CF, pp. 1215, 1765.
1. There Is a Strong Local Interest in the Regulation of Fracking
Within the City of Longmont.
Citizen Intervenors have presented ample evidence demonstrating the
significant local impacts of fracking. These include harm to citizens health;
concerns about safety regarding a dangerous, industrial process; concerns
about the welfare and quality of life of citizens living near fracking sites;
economic concerns regarding diminished property values; and various
environmental and ecological harms related to fracking. All of these lead to a
decreased quality of life for many citizens in Longmont.
It is the local citizens who bear the health and safety risks associated
with fracking; who will suffer the decreased value of property located near
fracking sites; and whose general welfare and quality of life are impeded by
the heavy industrial activity, including increased light, noise, and other
pollution associated with fracking. The City has a significant interest in
ensuring the health and safety of its citizens, maintaining the value of
38

property in the city and protecting the environment in Longmont. Like in

Denver v. State, where evidence of the local impacts was considered to
determine the local interests, this Court should examine the evidence
presented by Citizen Intervenors that demonstrates the significant local
interests in regulating fracking.
2. The Effect of Article XVI on the State Interest Is Minimal.

The states interest in regulating fracking in Longmont is minimal.

Even looking only at the factors enumerated in Voss and cited by the trial
court, the state interest is minimal at best.
Statewide Uniformity

Changes in technology and the type of resource being extracted have

lessened, perhaps even removed, any state interest in uniform spacing of

wells to facilitate production that was the overriding concern in Voss. 830
P.2d at 1067. The Voss Court was concerned that because the resource being
extracted in the 1990s was found in subterranean pools, therefore oil and
gas production is closely tied to well location. Id. These concerns no longer
apply to the industry due to the development of horizontal drilling and the
nature of the reservoirs, which are not pools but rather tight formations
through which the oil and gas does not easily move. R.CF, pp. 56, 172324,
39

1746, 180203. Thus, uniformity as conceived of by the Voss court is no longer

much of a concern in the modern oil and gas industry.
Rather than acknowledging these industry changes, the trial court
instead turned to a different argument in favor of uniformity: patchwork
regulation. R.CF, p.204849. Yet the courts analysis ignored several
important points and never explained how patchwork regulation would result
in uneven production and waste (the waste issue is further addressed below).
As an initial matter, a patchwork of regulations already exists, apparently
without the adverse consequences envisioned by the trial court. Longmont
has regulations on the oil and gas industry in addition to Article XVI.
LONGMONT, COLO., CODE OF ORDINANCES. 15.04.020 (2013). Those regulations are
much more detailed than the simple and straightforward prohibition on
fracking. Additionally, the only operators in Longmont have demonstrated
that they understand and can comply with the fracking ban, thus concern over
the burdens of a patchwork of regulations carry little weight. For example,
both TOP and Synergy Resources (Synergy) have been able to comply with
the prohibition on fracking. R.CF, pp.1718, 19802021. Thus, this factor
provides only minimal, if any, support in favor of state regulation.
//
40

Extraterritorial Impacts
The only example of extraterritorial impacts relied upon by the trial
court falls apart upon closer examination, a fact the trial court overlooked.
The trial court found extraterritorial impacts in this case because Synergy had
a well pad outside city limits which fracked only the portions of the well that
did not underlie Longmont. R.CF, p.2049. However, the deposition of Ed
Holloway, the CEO of Synergy Resources, makes clear that Synergys decision
to extend the well into Longmonts borders was a business decision. Synergy
chose to drill under Longmont and entered into an agreement not to frack in
consideration for use of an access road. R CF, p.2023. Synergy could have
chosen to drill entirely outside Longmonts boundaries, thus resulting in no
extraterritorial impacts. Moreover, Synergy would not be able to frack even if
Article XVI is found invalid, because Synergy agreed contractually not to frack
within the city of Longmont. R.CF, p.1719. The factors thus do not favor state
regulation, as no extraterritorial impacts have been demonstrated.
Traditional Governance
The trial court found that oil and gas has traditionally been governed by
the state. R.CF, p.2049. This finding ignores the fact home rule municipalities
have significant control over zoning activities and landuse regulation within
41

its boundaries. In fact, the legislature routinely protected these powers when
amending the Act. The Voss court stated that regulation of oil and gas
development had traditionally been a matter of state control. Voss, 830 P.2d
at 1068. But keep in mind the Voss court was examining a total ban. The Voss
court also stated:
If a homerule city, instead of imposing a total ban on all drilling within
the city, enacts landuse regulations applicable to various aspects of oil
and gas development and operations within the city, and if such
regulations do not frustrate and can be harmonized with the
development and production of oil and gas in a manner consistent with
the stated goals of the Oil and Gas Conservation Act, the city's
regulations should be given effect.

Id. at 10681069.


Moreover, fracking today is used in conjunction with horizontal drilling,
a relatively new technique only developed in the past decade or so. R.CF,
p.1472. As such, any tradition the state may have in regulating this technique
is minimal when compared to the history of governance home rule
municipalities have over zoning within their boundaries. R.CF, p.1552. The
traditional governance of the state over oil and gas production set forth by the
Act is silent with regard to fracking.

Furthermore, the state has asserted in other proceedings that it does

not have the authority to limit fracking based on health concerns. A recent
42

petition to the COGCC requested that it halt issuing permits for fracking until it
can be proven to be safe. Memorandum from the Office of Attorney General,
Jake Matter, to COGCC, Director Matthew Lepore, Re: Petition for Rulemaking
from Martinez (April 11, 2014), (available at http://cogcc.state.co.us/Announ
cements/Rulemaking/EarthGuard/AG_Memo_to_Commission_20140411.pdf).
The AGs office suggested that halting drilling until fracking can be proven to
be safe is not within the authority granted to the COGCC by the Act, which
under its interpretation requires health to be balanced with production. Id. at
45. If the COGCC does not even have the authority to prohibit fracking, then
it does not have a longer tradition of regulating the topic than Longmont does.
Thus, this factor is neutral at best.
Constitution
The Colorado Constitution does not expressly give authority over oil
and gas production to the state. However, the Colorado Constitution protects
citizens inalienable rights and provides authority over local issues to local
governments. Local residents have the authority to protect those inalienable
rights through reasonable regulations. Article XVI is a reasonable exercise of
Longmonts citizens rights to protect themselves against the harms of

43

fracking as well as a proper exercise of home rule authority. Thus, this factor
is either neutral or actually favors local regulation in this case.
3. Weighing the Significant Local Impacts Against the Minimal
State Interest Results in a Determination That Longmonts
Regulations Are a Matter of Local Concern.
Properly taking into account all relevant factors, this Court should find
Article XVI to be a matter of local concern. The state interest in nonlocal
impacts of Article XVI is negligible at best. A minor state interest does not
preclude a finding of local concern. See Denver v. State, 788 P.2d at 769
(finding the economic impact of the Denver residency requirement that had
.014% of an impact on the state interest to be de minimis and upholding the
local regulation).

The significant local interests greatly outweigh the minimal state

interest in this case. On the one hand, local interests include risks to health
and safety including increased risk of cancer and other diseases, increased
industrial traffic, and increased risk of explosions, spills, and other accidents.
There are also detrimental impacts to the local economy including devalued
property, expending private income to ensure safe soil and water, and
decreasing the likelihood of people living and working near fracking sites.
Citizens quality of life is decreased as they fear these dangers; they must live
44

with increased noise, lighting, traffic, and smells; and the ecological habitats
and environment they once enjoyed are damaged or diminished.
On the other hand, there is the state interest in a fraction of a
percentage of statewide oil and gas production. No extraterritorial impacts
can be attributed to Article XVI. Even the states interest in uniform
regulations falls short in light of the different regulations that currently exist
in Longmont, irrespective of Article XVI, that both operators agreed to comply
with. Thus, the state interests are greatly outweighed by the local interests in
regulating fracking.
B. Even if the Matter Is One of Mixed Local and State Concern, There
Is No Operational Conflict.
No operational conflict exists between Article XVI and the Act. Article
XVI (1) does not impede nor destroy the states interest in oil and gas
production; (2) does not cause waste; (3) does not affect the correlative rights
of owners; and (4) protects public health, safety and welfare, consistent with
the purpose of the Act. In fact, Article XVI is consistent with the states
interest in oil and gas production, and can be harmonized with the Act.
First, Article XVI does not prevent all oil and gas development in
Longmont. Fracking is but one method of extraction, alternatives exist that
45

foster efficient development and production. For example, a technique known

as underbalanced drilling can be more efficient and economic than fracking.
R.CF, p.1428. Also, wells do not have to be fracked in order to produce oil and
gas. TOPs vice president, Murray Herring, admitted that nonfracked wells
are nonetheless able to produce. See R.CF, pp.178990. Further, operators
produced over 15,000,000 barrels of oil in the Florence Field, a shale
formation, before the advent of fracking. R.CF, pp.142728. Initially, the
Plaintiffs claimed Article XVI was a de facto ban on drilling. On the contrary,
Citizen Intervenors presented evidence showing Article XVI does not prevent
oil and gas development in Longmont.
Current oil and gas production in Longmont is also ongoing, even
without fracking. Yet the trial court relied on Plaintiffs affidavits to conclude
that banning fracking has virtually destroyed the state interest in
production. R.CF, p.2052. However, there are between 10 and 12 wells
currently producing in Longmont. R.CF, pp.1211, 1648. Thus, Article XVI has
not ended production in Longmont, as the trial court erroneously concluded.
Second, Article XVI does not cause waste. The trial court correctly noted
that one of the purposes of the act is to [p]rotect against waste. R.CF,
p.2051. The statutory definition of waste is an action that reduces the
46

amount of oil and gas ultimately recoverable from a pool. C.R.S. 3460
103(13)(b). Waste is not the amount immediately recoverable.
Therefore, just because mineral deposits were left in the ground that
otherwise could have been extracted, as the trial court noted, it does not
follow that Article XVI causes waste because the resource can ultimately be
accessed by means other than fracking now or in the future. See R.CF, p.2052.
Third, Article XVI does not affect the correlative rights of owners. As
explained previously, the only example the Plaintiffs could produce showing
any effect to the correlative rights of owners, and which the court relied upon,
turned out to be incorrect after the conclusory assertions by Synergys CEO
were tested at a deposition. See generally R.CF, p.171017; supra Sect.IV.A.2.
Fourth, Article XVI is consistent with the local and state interests in the
health, safety, and welfare of Longmonts citizens. The stated purpose of the
Act is to permit each oil and gas pool in Colorado to produce up to its
maximum efficient rate of production, subject to the prevention of waste,
consistent with the protection of public health, safety, and welfare,
including protection of the environment. C.R.S. 3460102 (emphasis
added). The trial court incorrectly omitted the public health, safety, and
welfare portion of the Act, and ruled [t]here is no way to harmonize [Article
47

XVI] with the stated goals of the [Act]. R.CF. p.2053. That is only true if part
of the state interest is ignored. Because Article XVI addresses the dangers
fracking poses to public health, safety, welfare, and the environment, it is
actually consistent with the state interest and harmonious with the Act.
Responsible, balanced production consistent with the protection of health,
safety, and the environment means that production can be allowed in most
places, but not in Longmont where it poses unacceptable risks to the
community.
CONCLUSION
Citizen Intervenors request this Court to vacate the trial courts
decision and remand with instructions for the court to consider the
application of Citizen Intervenors inalienable rights to this case, to
apply the correct preemption standards, and to conduct an evidentiary
hearing in order to make the factual findings necessary to rule on the
preemption claims.
//
//
//
//
48

DATED this 15th day of January, 2015.

Respectfully submitted,

/s/ Kevin J. Lynch



Kevin J. Lynch (CO Bar No. 39873)
Brad Bartlett (CO Bar No. 32816)
LaRona Mondt (Student Attorney)
Christopher Brummitt (Student Attorney)
Nicholas Rising (Student Attorney)
Environmental Law Clinic
University of Denver
Counsel for Citizen Intervenors

/s/ Eric Huber



Eric Huber (CO Bar No. 40664)
Counsel for Sierra Club and Earthworks

This document was filed electronically pursuant to C.A.R. 25(e). The original
signed document is on file with the University of Denver Environmental Law
Clinic.

49

CERTIFICATE OF SERVICE


The undersigned hereby certifies that on this 15th day of January, 2015,
a true and correct copy of the foregoing CITIZEN INTERVENORS OPENING
BRIEF was served via the Integrated Colorado Courts EFiling System (ICCES),
on:


Karen L. Spaulding, Esq.
Beatty & Wozniak, P.C.
John E. Jake Matter, Esq.
216 16th Street, Suite 1100
Julie M. Murphy, Esq.
Denver, CO 80202
Asst Attorney Generals
1300 Broadway, 10th Floor

Phillip D. Barber, Esq.
Denver, CO 80203
1675 Larimer Street, Suite 620

Denver, CO 80202
Mark Mathews, Esq.
Wayne F. Forman, Esq.

Eugene Mei, Esq.
Michael D. Hoke, Esq.
Daniel E. Kramer, Esq.
Brownstein Hyatt Farber Schreck,
City Attorneys
LLP
City of Longmont
410 17th Street, Ste. 2200
rd
408 3 Avenue
Denver, CO 80202
Longmont, CO 80501



Thomas J. Kimmell, Esq.

Zarlengo & Kimmell, PC

700 North Colorado Boulevard,

Suite 598

Denver, CO 80206








s/ Kevin Lynch_______







Kevin Lynch