COLORADO COURT OF APPEALS

2 East 14th Avenue

Denver, CO 80203
___________________________________________
Appeal from Boulder County District Court
The Honorable D.D. Mallard
Case No. 2013 CV 63
________________________________________
Defendant/Appellant:

DATE FILED: April 9, 2015 4:25 PM

FILING ID: 6D9575E549DD2
CASE NUMBER: 2014CA1759

COURT USE ONLY

_________________________

THE CITY OF LONGMONT

Plaintiffs/Appellees:

Case No.: 2014CA1759

COLORADO OIL AND GAS ASSOCIATION,

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

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF THE ARGUMENT .................. 1

ARGUMENT ............................................................................................. 4
I. The Act does not impliedly preempt Article XVI. ............................ 4
II. This case is distinguishable from Voss. .......................................... 10
A. Article XVI is materially different from a ban on all oil and gas
operations. .......................................................................................... 10
B. Voss does not foreclose the Citys home rule authority to enact
Article XVI. ........................................................................................ 14
III. Plaintiffs have not proven that Article XVI is in operational
conflict with state law. ......................................................................... 19
A. Plaintiffs cite no express state authorization to frack. ............... 20
B. Article XVI is not preempted as technical. .................................. 23
IV. No other laws preempt Article XVI. ............................................ 27
A. The Areas and Activities of State Interest Act does not preempt
Article XVI. ........................................................................................ 28
B. The Safe Drinking Water Act does not preempt Article XVI. ..... 29
V. The Plaintiffs have not proven Article XVI invalid beyond a
reasonable doubt................................................................................... 30
CONCLUSION ........................................................................................ 32

TABLE OF AUTHORITIES
Cases
Baum v. City and County of Denver,
363 P.2d 688 (Colo. 1961) ..................................................................... 31
Bd. of Cnty. Commrs of Gunnison Cnty. v. BDS Intl, LLC.,
159 P.3d 773, 778 (Colo. App. 2006)................................................... 6, 8
Bd. of Cnty. Commrs, La Plata Cnty. v. Bowen/Edwards Assocs., Inc.,
830 P.2d 1045, 1056 (Colo. 1992) ................................................. passim
Bd. of Cnty. Commrs, LaPlata Cnty. v. Colorado Oil & Gas
Conservation Commn,
81 P.3d 1119, 1125 (Colo. App. 2003) ................................... 6, 19, 20, 21
Best v. La Plata Planning Commn,
701 P.2d 91, 95 (Colo. App. 1984)......................................................... 31
Blue Circle Cement, Inc. v. Bd. of Cnty. Commrs of Cnty. of Rogers,
27 F.3d 1499, 1508 n.7 (10th Cir. 1994) ............................................... 14
Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204, 213 (1988) ......................................................................... 9
Churchey v. Adolph Coors Co.,
759 P.2d 1336, 1350 (Colo. 1988) ......................................................... 17
City & Cnty. of Denver v. Bd. of Cnty. Commrs,
760 P.2d 656, 660 (Colo. App. 1988) ..................................................... 31
City and County of Denver v. State,
788 P.2d 764, 771 (Colo. 1990) ............................................................. 16
City of Commerce City v. State,
40 P.3d 1273, 1280 (Colo. 2002) ..................................................... 16, 18
ii

Colorado Min. Assn v. Bd. of Cnty. Commrs of Summit Cnty.,

199 P.3d 718, 725 (Colo. 2009) ............................................... 8, 9, 13, 22
Condo v. Conners,
266 P.3d 1110, 1114 (Colo. 2011) ......................................................... 17
Droste v. Bd. of Cnty. Commrs of Cnty. of Pitkin,
85 P.3d 585, 589 (Colo. App. 2003)....................................................... 28
English v. Gen. Elec. Co.,
496 U.S. 72, 78 (1990)............................................................................. 4
Johnson v. California,
543 U.S. 499, 515 (2005) ....................................................................... 13
Moore v. City of Boulder,
29 Colo. App. 248, at 252-54 (1971) ............................................... 30, 31
Paredes v. Air-Serv Corp.,
251 P.3d 1239, 1242 (Colo. App. 2010) ................................................. 31
People ex rel. S.N. v. S.N.,
2014 CO 64, 16 .................................................................................. 20
Rancho Lobo, Ltd. v. Devargas,
303 F.3d 1195, 1205 (10th Cir. 2002) ....................................... 20, 21, 22
Sterenbuch v. Goss,
266 P.3d 428, 435 (Colo. App. 2011) ..................................................... 12
Town of Frederick v. N. Am. Res. Co.,
60 P.3d 758, 763 (Colo. App. 2002)................................................... 6, 21
Town of Milliken v. Kerr-McGee Oil & Gas Onshore LP,
2013 COA 72, 3-4............................................................................... 9
Voss v. Lundvall Bros.,
830 P.2d 1061, 1068 (Colo. 1992) ......................................... 6, 10, 17, 20
iii

Webb v. City of Black Hawk,

2013 CO 9, 19 .............................................................................. 15, 16

Statutes
24-65.1-202(1)(a), C.R.S. ....................................................................... 28
3432109(6), C.R.S. .............................................................................. 8
42 U.S.C. 300f ....................................................................................... 29
42 U.S.C. 300h-2 ................................................................................... 29

Regulations
2 Colo. Code Regs. 404-1:201.................................................................. 7
40 C.F.R. 144.35(c)................................................................................ 29
Article XVI ....................................................................................... passim

Other Authorities
Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical
Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REV.
793, 812-13 (2006) ................................................................................ 14
Blacks Law Dictionary (10th ed. 2014) .................................................. 22

iv

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of
C.A.R. 32, including all formatting requirements set forth in these
Rules. Specifically, the undersigned certifies that:
The Brief complies with C.A.R. 28(g) in that it contains 5,688
words.
The Brief complies with C.A.R. 28(k) because it contains under a
separate heading, a concise statement of the applicable standard of
appellate review with citation to authority; and a citation to the precise
location in the record (R.___, p. ___), not to an entire document, where
the issue was raised and ruled on.
I acknowledge that my brief may be stricken if it fails to comply
with any of the requirements of C.A.R. 28 and C.A.R. 32.
Respectfully submitted,
CITY OF LONGMONT, COLORADO
By:

/s/ Daniel E. Kramer

Daniel E. Kramer
Assistant City Attorney

INTRODUCTION AND SUMMARY OF THE ARGUMENT

The City of Longmont bans feedlots. The City bans junkyards.
The City bans confined animal feeding operations, horse racetracks,
auto racetracks, and landfills. CF, p. 1806. The State regulates these
things, and would allow them in the City, but local law excludes them.
Most land uses can locate in some zoning districts and not others.
Some uses, however, do not belong anywhere in the City. Prohibitions
are therefore normal, and fulfill the basic function of cities to protect
the health, safety, and welfare of the people.
City authority has limits, and a state law can preempt a City
regulation. But out of respect for local lawmaking, courts apply a
presumption against preemption. One challenging a local law must
demonstrate the narrow and stringent conditions required for a
preemptive effect.
Plaintiffs have not done so here.
The central question in an oil and gas preemption case is whether
the local regulation materially impedes or destroys the state interest.
In this case, the Plaintiffs must prove that Longmonts fracking
1

prohibition materially impedes oil companies from producing oil and

gas. The City submitted considerable evidence that it does not. This
dispute of material fact should be resolved at trial, not summary
judgment.
Faced with this problem, the Plaintiffs attempt to make this case
more complicated than it actually is. Even their strongest arguments
fail, for three reasons:
First, implied preemption is a species of statutory interpretation
that arises when a state law evinces the intent of the General Assembly
to completely occupy the field, leaving no room for local regulation. The
Supreme Court has already interpreted the Colorado Oil and Gas
Conservation Act (Act) not to completely occupy the field of regulation.
So, it does not impliedly preempt local laws.
Second, Plaintiffs claim that Longmonts citizen-enacted Charter
provision prohibiting fracking (Article XVI) amounts in practice to a
total ban on all oil and gas operations. This runs contrary to evidence
that wells can be and are currently explored, drilled, and produced,
economically, without fracking. At summary judgment, Plaintiffs
2

cannot prevail based on this disputed factual claim. Also, at oral

argument below, the Plaintiffs specifically disavowed this argument
that Article XVI is a de facto ban on oil and gas operations. They
cannot revive it now.
Third, the Plaintiffs argue that the City cannot prohibit
something the State expressly authorizes. But the Plaintiffs cannot
point to a single state regulation, permit, or other law or authorization
whatsoever, saying that fracking is allowed. Without such an express
authorization, Article XVI does not conflict with the words of the Act.
Plaintiffs bear the burden at summary judgment to prove no
material facts are in dispute and judgment should issue as a matter of
law. Yet they also bear the heavier burden that comes with arguing a
legislative enactment is invalid: they must prove it invalid beyond a
reasonable doubt. The Plaintiffs here do not meet either burden.
This Courts judgment should be simple and straightforward: let
the lower court find the material and disputed facts at trial and then
reassess whether the Plaintiffs have met their burdens of proof.

ARGUMENT
I.

The Act does not impliedly preempt Article XVI.

Bowen/Edwards discussed the three possible ways a local

regulation can be preempted: express preemption, implied preemption,

and operational conflict preemption. Bd. of Cnty. Commrs, La Plata
Cnty. v. Bowen/Edwards Assocs., Inc., 830 P.2d 1045, 1056 (Colo. 1992);
accord English v. Gen. Elec. Co., 496 U.S. 72, 78-79 (1990) (describing
the three ways in more detail). Express preemption arises when a
statute says it preempts local laws; that does not apply here. Id.
Implied preemption is a species of statutory interpretation.
Commission Answer Brief, at 13. It arises when a statute evinces a
legislative intent to completely occupy a given field by reason of a
dominant state interest . . . to the exclusion of all other regulation.
Bowen/Edwards, 830 P.2d at 1056-58. The Supreme Court has held
that, while the State has an interest in uniform oil and gas regulations,
that interest does not demonstrate[] a legislative intent to occupy all
aspects of oil and gas development and operations. Id. at 1058-59.

Finding no implied preemption, the Bowen/Edwards Court

turned to the question of operational conflict, the third type of
preemption, to resolve the dispute. Id. at 1059. In contrast to implied
preemption, operational conflict arises where a local law materially
impede[s] or destroy[s] the state interest. Id. This evidence-based test
resolves conflicts between specific local and state regulations as they
arise in operation. Id. at 1060. It does not declare preemption over an
entire field of regulation. See id.
Plaintiffs want this to be an implied preemption case so they can
avoid a factual analysis. They say the disputed facts do not matter
because preemption is implied, just as the plaintiffs argued in
Bowen/Edwards itself. But the Supreme Court disagreed, found the
Act did not occupy the field, and remanded the case for a full factfinding
on the question of operational conflict. Id. at 1058-61. This Court
should do the same.
Applying Bowen/Edwards, the Court found an operational conflict
in Voss, holding, Greeleys total ban on drilling within the city limits
substantially impedes the interest of the state in fostering the efficient
5

development and production of oil and gas resources. Voss v. Lundvall

Bros., 830 P.2d 1061, 1068 (Colo. 1992) (emphasis added). Of course,
Voss also undertook a home rule analysis, finding that the state
interests were sufficiently dominant to supersede a total ban on
operations. Id. Yet it quoted Bowen/Edwards extensively and applied
the operational conflict test. Id. It addressed implied preemption only
by citing Bowen/Edwards holding that the doctrine does not apply. Id.
at 1066, 1068.
In turn, the cases since Voss and Bowen/Edwards have used
operational conflict analysis, not implied preemption analysis, to
resolve preemption challenges to local oil and gas regulations. Bd. of
Cnty. Commrs of Gunnison Cnty. v. BDS Intl, LLC., 159 P.3d 773, 778
(Colo. App. 2006); Bd. of Cnty. Commrs, LaPlata Cnty. v. Colorado Oil
& Gas Conservation Commn, 81 P.3d 1119, 1125 (Colo. App. 2003);
Town of Frederick v. N. Am. Res. Co., 60 P.3d 758, 763 (Colo. App.
2002).
To impliedly preempt is to completely occupy the field.
Bowen/Edwards, 830 P.2d at 1056; accord English, 496 U.S. at 79. So,
6

when the Plaintiffs argue that the Act impliedly preempts a particular
local regulation, Article XVI, even though it does not occupy a field of
regulation, they misstate the nature of implied preemption.
Although they were promulgated under the Act, the Commissions
rules cannot prove the General Assembly intended to occupy the field,
for three reasons. First, by their own terms, the Commissions rules
have no implied preemption effect. Rule 201 states, Nothing in these
rules shall establish, alter, impair, or negate the authority of local and
county governments to regulate land use related to oil and gas
operations, so long as such local regulation is not in operational conflict
with the Act or regulations promulgated thereunder. 2 Colo. Code
Regs. 404-1:201 (emphasis added).
Second, implied preemption requires a legislative intent to
completely occupy a given field, which the rules cannot create.
Bowen/Edwards, 830 P.2d at 1056 (emphasis added).
Third, local governments can regulate aspects of oil and gas
operations even when the Commission has already regulated those
same subjects. Local oil and gas laws may not be overturned based on a
7

same-subject analysis showing that they cover the same subjects as

state regulations.1 Such a flawed analysis would reflect neither implied
nor operational conflict preemption. So, just because the State has
rules relating to fracking does not mean the City cannot restrict it too.
In contrast, Summit County found implied preemption under the
Mined Land Reclamation Act because the General Assembly expressed
a sufficiently dominant interest by assigning to the Board the field of
the use of chemicals and other toxic and acidic reagents in mining
operations for mineral processing. Summit County, 199 P.3d at 733
(emphasis added). That statute vests the state agency with sole
authority over mined land reclamation: No . . . political subdivision of
the state shall . . . require reclamation standards different than those
established in this article. Id. at 727 (emphasis removed) (quoting
3432109(6), C.R.S.). Holding that the local regulations on mining

BDS, 159 P.3d at 779 (rejecting the contention that a same-subject

analysis applies); e.g., id at 781-82 (remanding for a factual,
operational conflict analysis even though various local regulations
address the same subject matter as state law); see also Colorado Min.
Assn v. Bd. of Cnty. Commrs of Summit Cnty., 199 P.3d 718, 725 (Colo.
2009) (Mere overlap in subject matter is not sufficient to void a local
ordinance.).
8
1

chemicals were reclamation standards different than the States, the

Courts analysis was essentially complete. Id. at 732-33.
While the Commission claims to interpret the Act to give it
exclusive authority over fracking similar to the States sole authority
over mined land reclamation, it cites no authority to this effect.
Commission Answer Brief, at 23. Deference to what appears to be
nothing more than an agencys convenient litigating position would be
entirely inappropriate. Bowen v. Georgetown Univ. Hosp., 488 U.S.
204, 213 (1988). Unlike with mined land, the legislature has displayed
no intent to exclusively occupy the field of oil and gas regulation.
Bowen/Edwards, 830 P.2d at 1059.
Milliken, meanwhile, did not establish implied preemption over oil
and gas, but simply barred a local government from contradicting an
express provision of the Act. The Act expressly prohibits local
inspection fees for oil and gas facilities, yet the town attempted to
impose one. Town of Milliken v. Kerr-McGee Oil & Gas Onshore LP,
2013 COA 72, 3-4, 19. The case did not even discuss implied
preemption.
9

Finally, local regulations can operationally conflict with state law

in technical ways. But no published case has held that such conflicts
rise to the level of implied preemption. Instead, every case has dealt
with technical conflicts within the operational conflict framework, as
the City will below in Section III.B. See, e.g., Frederick, 60 P.3d at 76266 (denying implied preemption but finding operational conflicts of a
technical nature).
There is no shortcut; preemption in this realm comes only through
operational conflict. Implied preemption does not apply.
II.

This case is distinguishable from Voss.

A. Article XVI is materially different from a ban on all oil and

gas operations.
One fundamental difference between this case and Voss was
clearly central to the Voss decision, as the Court said it 23 times: Voss
involved a total ban on all oil and gas operations. 830 P.2d 1061,
passim. Article XVI prohibits only one of many completion processes
fracking a risky procedure relatively new to Colorado that the Act
never mentions.
10

Plaintiffs argue Voss is indistinguishable. Commission Answer

Brief, at 16. Their rationale is instructive: operators rely on hydraulic
fracturing to be productive; drilling without fracking would not be
economic; and fracking is a prevailing process, even an
overwhelming, near-universal process in producing oil and gas. Id. at
16-18. In sum, Plaintiffs say, Article XVI has stopped new oil and gas
development in Longmont and therefore acts as a de facto drilling
ban, making it directly comparable to Voss. Commission Answer Brief,
at 8; TOP Answer Brief, at 35.
This comparison to Voss has two fatal flaws. First, these are
disputed facts. As the City laid out in section 2 of the Statement of
Facts in its Opening Brief to this Court, fracking is unnecessary in the
Longmont area. Wells in the area (and in the relevant mineral
formations) are commonly drilled without fracking, as they have been
for a century. CF, pp. 1213, 1414-23, 1427-29. Underbalanced drilling
is a ready substitute for fracking. CF, pp. 1429-30. And Article XVI
has not stopped drilling in Longmont. No new drilling had taken
place since 2006, well before Article XVIs enactment until Synergy
11

constructed new wells with Article XVI in place. CF, pp. 665-702
(containing dates for every active Longmont well). Although the new
wells were not fracked beneath the City, they extend beneath the City
and may draw oil and gas from minerals within the Citys jurisdiction.
CF, p. 1934. Summary judgment cannot issue by comparing Article
XVI to a total ban, when those facts are competently disputed.
Second, the Plaintiffs understood this problem at summary
judgment, and accordingly disowned the argument that Article XVI is a
de facto drilling ban. CF, p. 2052 (summary judgment order stating,
Plaintiffs no longer take the position that a ban on fracking is a de
facto ban on drilling); R. Tr. (July 9, 2014), pp. 20-21 (COGAs attorney
saying frackings alternatives are irrelevant, because we are not
arguing a de facto ban in this particular case). Plaintiffs cannot now
revive this de facto ban argument. [A]rguments not presented to or
ruled on by the district court cannot be raised for the first time on
appeal. Sterenbuch v. Goss, 266 P.3d 428, 435 (Colo. App. 2011).
Once you discard the Plaintiffs argument that Article XVI is a de
facto ban on all operations, not much remains to tie it to Voss. One
12

thing Plaintiffs try is to call Article XVI a ban, and suggest Voss
applies to all bans whereas Bowen/Edwards applies only to
particular oil and gas regulations. COGA Answer Brief, at 28-29
(emphasis in original). Nothing in either case actually says this, nor
explains what the distinction might mean in practice. So the Plaintiffs
look to the hard rock mining case, Summit County, for support. That
case says, local land use ordinances banning an activity that a statute
authorizes an agency to permit are subject to heightened scrutiny in
preemption analysis. 199 P.3d at 725 (emphasis added).
The City welcomes scrutiny. Let the trial court carefully
scrutinize the impact of Article XVI to see if it impedes or destroys state
interests. Let it conduct the detailed factual analysis necessary in this
matter of first impression. It has not yet.
Just because a law receives a high level of scrutiny does not mean
it is invalid. Even the more exacting standard of strict scrutiny says
nothing about the ultimate validity of any particular law. Johnson v.
California, 543 U.S. 499, 515 (2005). Laws routinely survive even strict

13

scrutiny.2 Even one case cited in Summit County foresaw situations

where a total ban . . . would not be preempted, as in residential areas
where the activity in fact posed a significant threat to health or safety.
Blue Circle Cement, Inc. v. Bd. of Cnty. Commrs of Cnty. of Rogers, 27
F.3d 1499, 1508 n.7 (10th Cir. 1994).
The Plaintiffs argument amounts to a plea that banning fracking
sounds like banning drilling, so they shouldnt have to endure the
inconvenience of a trial. But that is not the law. Because the City has
produced considerable evidence showing that Article XVI does not block
drilling, and does not impede or destroy the States interests, this case
must proceed to trial.
B. Voss does not foreclose the Citys home rule authority to
enact Article XVI.
Extensive, unrebutted evidence suggests that Article XVI falls
within the Citys home rule power. Citys Opening Brief, at 19,
Statement of Facts 1. To know whether a matter is of local concern
Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical
Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REV. 793,
812-13 (2006) (study showing 30 percent of challenged laws survive
strict scrutiny).
14
2

and committed to a home rule citys plenary authority, a court must

conduct an ad hoc analysis based on all the circumstances of the case.
Because the district court declined to do that here, a remand is
appropriate.
The Plaintiffs think Vosss review of the four enumerated home
rule factors should be dispositive here, and say the Citys argument
amounts to an invitation to reexamine Voss. COGA Answer Brief, at
12 & n.3. That poses the right question: Does Voss say, once and for all,
that no oil and gas regulation can be a matter of local concern?
The law of home rule is settled. A court must weigh the relative
interests of the state and the municipality in regulating the particular
issue in the case, making the determination on a case-by-case basis
considering the totality of the circumstances based on the enumerated
factors and any other factors we deem relevant. Webb v. City of Black
Hawk, 2013 CO 9, 19 (emphasis added). The four enumerated factors
are not the end of the analysis, but should assist the court in weighing
the importance of the state interests with the importance of the local
interests in order to make the legal conclusion as to which law should
15

prevail. City of Commerce City v. State, 40 P.3d 1273, 1280 (Colo.

2002) (emphasis added). So, in City and County of Denver v. State, the
matter was of local concern because the State was unable to
demonstrate a sufficiently weighty state interest in superseding local
regulation. 788 P.2d 764, 771 (Colo. 1990) (emphasis added).
The weighing analysis does not let a local law supersede a
conflicting state law in a matter of mixed concern. Contra Commission
Answer Brief, at 43-44 (mistakenly identifying this as the Citys
contention). It determines whether a matter is of local, mixed, or state
concern. Webb, 2013 CO 9, at 19-20; Commerce City, 40 P.3d at
1280. If local interests outweigh state interests on an ad hoc basis,
the matter is of local concern. Commerce City, 40 P.3d at 1280; Denver,
788 P.2d at 767-68.
Strong local interests can, therefore, sway a cases outcome. See
Denver, 788 P.2d at 771 (reaching the outcome based on local interests).
Even if the States interest in having oil companies frack in Longmont
is substantial, as COGA suggests, it can still be outweighed. See id.;
COGA Answer Brief, at 11.
16

Unlike in Voss the only published case yet on home rule over oil
and gas the local interests here are well documented and presented,
as in Denver. Evidence shows that fracking in Longmont poses serious
risks to the health, safety, and welfare of the Citys people. City
Opening Brief, Statement of Facts, 1; see Condo v. Conners, 266 P.3d
1110, 1114 (Colo. 2011); Churchey v. Adolph Coors Co., 759 P.2d 1336,
1350 (Colo. 1988) (nonmoving partys evidence taken as true and viewed
in favorable light at summary judgment).
Yet, as even Plaintiffs amici curiae concede, the court below
reject[ed] a weighing of interests. Amici Curiae Brief of Colorado
Concern, et al., at 5. By disregarding the local interests at stake, the
trial court neglected to apply the proper home rule test. CF, p. 2050
(summary judgment order disregarding frackings risks to the City).
Furthermore, the States interest is weaker here than in Voss.
The States main interest in Voss was uniform regulation of the
location and spacing of wells. Voss, 830 P.2d at 1067. Yet, based on
the Citys undisputed evidence on technological developments since

17

Voss, the district court found that well location and spacing are no
longer as important as they were in 1992. CF, p. 2041 n.3.
The Commission despairs of the patchwork of local regulations
that could emerge if Article XVI is eventually upheld. Commission
Answer Brief, at 32. But this is always a concern when local
governments are allowed to regulate anything. Complaining of a
patchwork is less an argument against Article XVI than one against
home rule itself. For this reason, uniformity in and of itself is not a
virtue. Commerce City, 40 P.3d at 1280.
Neither the court below, nor Voss, weighed the state and local
interests presented in the instant case. This weighing of all the
circumstances of the case, which determines whether a matter is of
local concern, must be ad hoc. Id. Accordingly, no court has properly
determined whether Article XVI is within the Citys home rule
authority as a matter of local concern, and this case should be
remanded for that analysis.

18

III.

Plaintiffs have not proven that Article XVI is in

operational conflict with state law.
One statement by the Commission shows just how far the

Plaintiffs are straying from established law: Take for example the most
important issue, according to Longmont, of whether Longmonts ban on
hydraulic fracturing has destroyed the state interest in oil and gas
development. This asks the wrong question. Commission Answer
Brief, at 44 (quotation marks, alteration, and citation omitted).
Actually, this is the question, the central question in oil and gas
preemption cases, set forth in Bowen/Edwards and applied consistently
since: Does the local regulation materially impede or destroy the state
interests? Bowen/Edwards explained that operational conflict arises
where the effectuation of a local interest would materially impede or
destroy the state interest, and it indicated that the courts would
determine the existence of such a conflict on an ad hoc basis under a full
evidentiary record. LaPlata Cnty. v. Commn, 81 P.3d at 1123.
So, after Voss and Bowen/Edwards, this Court has understood
that to find a local oil and gas law preempted without finding that it
materially impeded or destroyed state interests would erode[] the
19

delicate balance between local interests and state interests set forth
by Bowen/Edwards. Id. at 1125.
This appeal is simple to resolve. Plaintiffs presented facts tending
to show that oil companies often frack wells, whereas the City
presented evidence that fracking in the City would be irresponsible and
economically unnecessary. The evidence in the record may raise
opposing inferences about whether Article XVI impedes or destroys
state interests. See People ex rel. S.N. v. S.N., 2014 CO 64, 16
(nonmoving party at summary judgment entitled to all favorable
inferences). Because of this simple factual dispute, a trial should ensue.
The rest is detail. The subsections below respond to the Plaintiffs
two main attempts to sidestep the operational conflict test.
A. Plaintiffs cite no express state authorization to frack.
The forbid/authorize test invalidates local laws in some subject
areas when they forbid what the state expressly and affirmatively
authorizes. Rancho Lobo, Ltd. v. Devargas, 303 F.3d 1195, 1205 (10th
Cir. 2002); Citys Opening Brief, at 31-35. The test does not apply to oil
and gas, however, and was not applied in Voss. Voss, 830 P.2d 1061; see
20

also LaPlata Cnty. v. Commn, 81 P.3d at 1125 (operational conflict

necessary for preemption, not just any conflict); Frederick, 60 P.3d at
765 (the operational conflicts test controls and is different from the
forbid/authorize test); Citys Opening Brief, at 26-31. But even if the
test did apply to oil and gas, the Plaintiffs fail it anyway.
The Plaintiffs generally do not dispute that the forbid/authorize
test outlaws a local ban only when the States authorization is express
and affirmative. COGA does introduce one bit of confusion, saying a
law can be preempted either expressly or impliedly. COGA Answer
Brief, at 26-27 (quoting Summit County and Rancho Lobo). Rancho
Lobo and Bowen/Edwards put this truism in its proper context, as a
general description of preemption doctrine as a whole. Rancho Lobo,
303 F.3d at 1201; Bowen/Edwards, 830 P.2d at 1055-57. Then they
drill down: implied preemption can overturn a local law based on
implication, and operational conflict can do so based on the local laws
effect. Id. But the forbid/authorize test does not deal with implied
conflicts it can invalidate a local prohibition only if the states
authorization is express, explicit, and affirmative. Rancho Lobo, 303
21

F.3d at 1205-06. Summit County agreed that local laws only may not
forbid that which the state has explicitly authorized. 199 P.3d at 725
(emphasis added); see further supporting authority in Citys Opening
Brief, at 32-33 & n.2.
Plaintiffs have therefore littered their briefs with expresses and
explicits to describe the Commissions alleged authorization of
fracking. But they seem to have lost the meaning of those words:
Clearly and unmistakably communicated; stated with
directness and clarity. Cf. implied.
Express, Blacks Law Dictionary (10th ed. 2014). Something is
express when it is stated directly. For example, Fracking is
permitted, or TOP Operating may frack the Longmont 8-10K well,
would count as an express and affirmative authorization.
The Plaintiffs cannot cite any such authorization. Instead they
point this Court to the rules providing that if an operator fracks, it must
give various notices and make various reports. COGA Answer Brief, at
18-19. Plaintiffs mention Commission staffs training and say the
Commission has sprinkled its rules with 41 instances of the term
hydraulic fracturing. Id. at 18. They say the Commission has decided
22

to allow fracking, without referencing any documented decision of the

sort. TOP Answer Brief, at 42.
And their conclusion? They want this Court to say, Even though
the Commission does not say fracking is authorized, they clearly
thought it should be, and that ought to be enough. It is not enough.
Something is expressed when you say it. An inferred right is not an
affirmatively stated right. The Plaintiffs arguments fail the
forbid/authorize test.
B. Article XVI is not preempted as technical.
One way a local oil and gas regulation can impede the States
interests is by imposing a technical requirement that conflicts with the
States own technical requirements. But since the Plaintiffs have not
proven that Article XVI is a technical regulation in operational conflict
with state law, this Court should remand for that analysis.
Bowen/Edwards describes the types of esoteric technical
requirements this might apply to, including the separation of oil
production into gaseous and liquid hydrocarbons and the proper

23

measurement of each element; [and] the establishment of proper gas-oil

and water-oil well ratios. Bowen/Edwards, 830 P.2d at 1049 n.2.
The Bowen/Edwards Court could not tell whether the local
regulations at issue in that case were technical and in operational
conflict with state law. Those regulations included setbacks of wells
from residential buildings[;] . . . environmental quality standards,
which are intended to balance economic development with protection of
the environment; and surface disturbance standards requiring
facilities to use only as much of the surface as is reasonably necessary.
Bowen/Edwards, 830 P.2d at 1051 n.3 (internal quotation marks
omitted).
Bowen/Edwards acknowledged that the effect of those regulations
might be to impose technical conditions resulting in operational
conflict. 830 P.2d at 1060 (emphasis added). But because the lower
courts had made no such factual determination below, the Court
remanded for an operational conflict analysis on an ad-hoc basis under
a fully developed evidentiary record. Id. at 1060.

24

Just as in Bowen/Edwards, the district court here made no

finding that Article XVI is technical in nature, stating only that it
might be. CF, p. 2048 (emphasis added). As in Bowen/Edwards,
this Court should remand for the district court to find those facts.
The record reveals three reasons why Article XVI might just as
easily not be technical. First, the Plaintiffs proffer no definition of
technical nor provide evidence that Article XVI meets such a
definition. Even the Commissions engineering manager thinks
technical is not definable as it relates to this case. CF, p. 1784, at
145, l. 9. So no undisputed facts prove Article XVI causes the sort of
technical operational conflict Bowen/Edwards envisioned.
Second, the Commission argues that regulations on pressure
strengths, cement depths and curing times, and other drilling minutia
could be technical regulations. Commission Answer Brief, at 25-26.
That may be true: some aspects of how exactly to frack might be
technical. But the Plaintiffs provided no evidence that the operators
choice of whether to frack is a technical decision. The Commission has
no regulations on whether an operator may or may not frack any given
25

well. As the Commissions engineering manager conceded, Thats an

operators discretion. CF, p. 1775, at 70-71.
Third, the Plaintiffs presented no evidence that the decision to
frack is technical in nature rather than financial. Indeed, the record
confirms that whether to frack is an economic decision an oil company
makes. CF, p. 1716, at 55, l. 16 (admission by oil executive). The
district courts proposed definition of technical as within the purview of
a petroleum engineer, aside from having no basis in the record, is too
broad given that petroleum engineers purviews may vary. CF, p. 2048.
Yet Article XVI does not fall within that overbroad definition because
the decision to frack rests not with the engineer, but with the operator,
the oil company executives, the ones holding the purse strings.
In any event, the test laid out in Bowen/Edwards does not call for
simply labeling a regulation technical or nontechnical to resolve a
case. Immediately after saying a local technical regulation can raise an
operational conflict with state law, Bowen/Edwards reinforced its
central holding: Any determination that there exists an operational
conflict between the county regulations and the state statute or
26

regulatory scheme, however, must be resolved on an ad-hoc basis under

a fully developed evidentiary record. 830 P.2d at 1060 (emphasis
added). Technical operational conflict, like any other operational
conflict, must be proven based on a record showing the local regulation
materially impedes or destroys the state interest. Again, there is no
shortcut.
Because of the many facts disputing the Plaintiffs allegation that
Article XVI is a technical regulation that materially impedes or destroys
the state interest, the Plaintiffs did not prove an operational conflict at
summary judgment, and this Court should remand for the proper
factfinding.
IV.

No other laws preempt Article XVI.

Beyond the Act, Plaintiffs argue that two other laws preempt

Article XVI: the Areas and Activities of State Interest Act (AASIA), and
the federal Safe Drinking Water Act (SWDA). Neither does.

27

A. The Areas and Activities of State Interest Act does not

preempt Article XVI.
AASIA provides an avenue for local governments to designate
[m]ineral resource areas and regulate mineral extraction. 24-65.1202(1)(a), C.R.S. (2014). Undisputedly, the City has not designated a
mineral resource area under AASIA. The Commission argues this
means the City cannot enact Article XVI.
The critical error in the Commissions analysis comes when it
asserts, without any citation or support, that AASIA is the exclusive
authority for local oil and gas regulations like Article XVI. Commission
Answer Brief, at 48. To the contrary, even where AASIA states that it
does not authorize a certain kind of local law, that does not suggest
that other statutes or grants of authority do not apply. Droste v. Bd. of
Cnty. Commrs of Cnty. of Pitkin, 85 P.3d 585, 589 (Colo. App. 2003).
The local government may still enact the regulation under other
authority, such as the Local Government Land Use Control Enabling
Act (Enabling Act). Id. AASIA provides supplemental, not exclusive,
local authority.

28

The Enabling Act authorizes local governments to regulate oil and

gas activities. Bowen/Edwards, 830 P.2d at 1056. The question is not
whether cities have the power to create such regulations, but whether
other state law preempts those regulations. AASIA does not assist that
analysis.
B. The Safe Drinking Water Act does not preempt Article XVI.
The SDWA regulates wells designed for the injection of fracking
wastewater. 42 U.S.C. 300f, et seq. The Commission argues that the
SDWA preempts Article XVIs prohibition of storage and disposal of
fracking waste in the City. Commission Answer Brief, at 48-49.
The Commissions argument fails because the SDWA contains a
savings clause:
Nothing in this subchapter shall diminish any authority of a
State or political subdivision to adopt or enforce any law or
regulation respecting underground injection but no such law
or regulation shall relieve any person of any requirement
otherwise applicable under this subchapter.
42 U.S.C. 300h-2(d) (2014) (emphasis added); accord 40 C.F.R.
144.35(c) (2015).

29

By its own terms, the SDWA does not preempt local regulations
like Article XVI.
V.

The Plaintiffs have not proven Article XVI invalid beyond a

reasonable doubt.
Colorados courts apply a strong presumption against holding local

legislation invalid. Citys Opening Brief, at 16. Local laws, like state
laws, must be proven invalid beyond a reasonable doubt. Id.
Plaintiffs contend that all of the cases cited by Defendants
involve constitutional rather than preemption challenges. COGA
Answer Brief, at 8 n.1; accord TOP Answer Brief, at 34.
That is inaccurate. In Moore v. City of Boulder, a case the City
cited in its Opening Brief, at 16, this Court assessed whether a citys
zoning ordinance was invalid in light of an allegedly contradictory state
statute a preemption challenge. 29 Colo. App. 248, at 252-54 (1971)
(explaining the dispute was about an alleged conflict . . . between the
ordinance in question and the provisions of Chapter 139 of the Colorado
Statutes, as to which controls). This Court applied the proper
presumption: The Boulder Zoning ordinance in question is a legislative
30

act presumed to be valid and reasonable. Id. at 252. For that

proposition, this Court cited Baum v. City and County of Denver, which
says, it has repeatedly been stated that the invalidity of an ordinance
must be established beyond a reasonable doubt. 363 P.2d 688, 692
(Colo. 1961); accord City & Cnty. of Denver v. Bd. of Cnty. Commrs, 760
P.2d 656, 660 (Colo. App. 1988); Best v. La Plata Planning Commn, 701
P.2d 91, 95 (Colo. App. 1984) (reasonable doubt standard applies to a
challenge to local regulations conformity to statute). These cases make
no distinction between a constitutional challenge and a preemption
challenge.
The reasonable-doubt standard is just Colorados formulation of a
common presumption against preemption, one shared by the federal
courts. A cardinal rule of preemption analysis is the starting
presumption that Congress did not intend to supplant state law.
Paredes v. Air-Serv Corp., 251 P.3d 1239, 1242 (Colo. App. 2010)
(alterations and quotation marks removed) (quoting United States
Supreme Court precedent).

31

Because there is at least a reasonable doubt as to whether Article

XVI materially impedes or destroys state interests, or whether the
Citys interests in Article XVI outweigh the States, summary judgment
should have been denied.

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

32

DATED this 9th day of April, 2015.

Respectfully submitted,
CITY OF LONGMONT, COLORADO

/s/ Eugene Mei

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

PHILLIP D. BARBER, P.C.

/s/ Phillip D. Barber
Phillip D. Barber
ATTORNEYS FOR THE APPELLANT

This document was filed electronically pursuant to C.R.C.P. 121 1-26.

The original signed document is on file at the offices of Phillip D.
Barber, P.C.

33

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and
foregoing REPLY BRIEF OF DEFENDANT-APPELLANT CITY OF
LONGMONT, was served this 9th day of April, 2015, by ICCES File
and Serve on the following:
Karen L. Spaulding, Esq.
Beatty & Wozniak, P.C.
216 - 16th Street, Ste. 1100
Denver, CO 80202

Devorah Ancel, Esq.

Sierra Club Environmental Law
Program
85 Second Street, 2nd Floor
San Francisco, CA 94105

Thomas J. Kimmell, Esq.

Zarlengo & Kimmell, PC
700 North Colorado Blvd., Ste. 598
Denver, CO 80206

John E. Jake Matter, Esq.

Julie M. Murphy, Esq.
Asst Attorneys General
1300 Broadway, 10th Floor
Denver, CO 80203

Eric Huber, Esq.

1650 38th Street, Ste. 102W
Boulder, CO 80301

Kevin J. Lynch, Esq.

Environmental Law Clinic
Sturm College of Law
2255 East Evans Avenue
Denver, CO 80210

Mark Mathews, Esq.

Wayne F. Forman, Esq.
Michael D. Hoke, Esq.
Justin L. Cohen
Brownstein Hyatt Farber Schreck,
LLP
410 17th Street, Ste. 2200
Denver, CO 80202

/s/ Lucienne Lyons

34