city of boulder-longmont-amicus brief

8/9/2019 City of Boulder-Longmont-Amicus Brief

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Colorado Court of Appeals2 East 14thStreet Denver, CO 80203Boulder County

2013 CV 63Plaintiff-Appellee:

Colorado Oil & Gas Association

v.

Defendant-Appellant

City of Longmont, Colorado,

and

Intervenors-Appellants:Our Health Our Future Longmont, Food and

Water Watch, Earthworks and The Sierra Club,

and

Intervenor-Appellee:

Top Operating Company,

Appellee:

Colorado Oil and Gas Conservation

Commission

City of Boulders Attorneys Name:Office of the City Attorney

Thomas A. CarrAddress: P.O. Box 791

Boulder, CO 80306Phone Number: (303) 441-3020

Fax Number: (303) 441-3859E-mail:[email protected]

Atty. Reg. #: 42170

COURT USE ONLY

Court of Appeals Case Number:2014CA1759

BRIEF OF CITY OF BOULDER ASAM ICUS CURIAE

IN SUPPORT OFTHE DEFENDANT-APPELLANT CITY OF LONGMONT

DATE FILED: January 15, 2015 2:29 PM
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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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:

This brief contains 1,669 words.

This Brief complies with C.A.R. 28(k) because it contains under a separate

heading: (1) a concise statement of the applicable standard of appellate review with

citation to authority; and (2) no citations to the precise location in the record are

necessary since the issues raised and ruled on did not involve the (i) admission or

exclusion of evidence, (ii) giving or refusing to give a jury instruction, or (iii) any

other act or ruling which required the City to make an objection or perform some

other act to preserve appellate review.

Respectfully submitted this 15th day of January, 2015.

CITY OF BOULDER

OFFICE OF THE CITY ATTORNEY

/s/ signature on file

Thomas A. Carr, #42170Attorney for Amicus Curiae,

City of Boulder


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TABLE OF CONTENTS

CERTIFICATE OF COMPLIANCE ......................................................................... ii

TABLE OF AUTHORITIES .................................................................................... iv

STATEMENT OF ISSUES PRESENTED FOR REVIEW ...................................... 1

STATEMENT OF THE CASE AND STANDARD OF REVIEW .......................... 1

INTRODUCTION AND INTEREST OFAMICUS CURIAE CITY OF

BOULDER ................................................................................................................. 1

ARGUMENT ............................................................................................................. 4

The Trial Court Ignored the Home Rule Provisions of the ColoradoConstitution. ..................................................................................................... 4

CONCLUSION .......................................................................................................... 8


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TABLE OF AUTHORITIES

CASES

City & Cnty. of Denver v. State,

788 P.2d 764, 767 (Colo. 1990) ............................................................................. 5

DeLong v. Denver,

576 P.2d 537 (1978) ............................................................................................... 4

Denver & Rio Grande W. R. Co. v. City & County of Denver,

673 P.2d 354, 357-58 (Colo. 1983) ........................................................................ 4

Vela v. People,484 P.2d 1204 (1971) ............................................................................................. 4

Voss v. Lundvall Bros., Inc.,

830 P.2d 1061 (Colo. 1992) .......................................................................... 5, 6, 7

STATUTES

Section 9-16-1, B.R.C. 1981 ...................................................................................... 3

Section 9-6-1(d), B.R.C.1981 ................................................................................... 3

OTHER AUTHORITIES

How Boulder Became America's Startup Capital, Inc. Magazine,

December 2013 ...................................................................................................... 2

CONSTITUTIONAL PROVISIONS

COLO.CONST.,ART. XX, 6 .................................................................................4, 7


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The City of Boulder (City) submits this brief in support of the City of

Longmont. The City of Longmont has more than capably presented the basis for

reversal of the Trial Court in its Opening Brief. The City of Boulder respectfully

submits this brief as amicus curiaeto inform the Court of the potential effects of

this decision on health, safety and economic vitality of another home rule city.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

The City adopts and incorporates by reference the statement of the issues

presented for review in the City of Longmonts Opening Brief.

STATEMENT OF THE CASE AND STANDARD OF REVIEW

The City adopts and incorporates by reference the statement of the case in

the City of Longmonts Opening Brief as well as the City of Longmonts statement

regarding the standard of review, which appears in the City of Longmonts

Opening Brief.

INTRODUCTION AND INTEREST OF AMICUS CURIAE

CITY OF BOULDER

The City of Boulder is a Colorado home rule city of approximately 100,000

residents 27 miles northwest of Denver. The City was founded in 1871 and

adopted it home rule charter on October 30, 1917. Boulder is the Boulder County

seat. The City is situated along the front range of the Rocky Mountains. The City


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comprises an area of approximately 25 square miles and is surrounded by

approximately 45,000 acres of open space. It is home to the main campus of the

University of Colorado as well as laboratories for the National Institute of

Standards and Testing, the National Oceanic and Atmospheric Administration and

the National Center for Atmospheric Research. Boulder has a diverse economy

driven by its reputation as a one of the most livable cities in the United States.

Boulder hosts campuses of major technology companies, including IBM, Google,

Microsoft and Ball Aerospace. Boulder has become a center for entrepreneurs. A

business magazine provided the following opinion:

Boulder is an entrepreneurial powerhouse like no other. In 2010, the

city had six times more high-tech start-ups per capita than the nation'saverage, according to an August 2013 study by the Kauffman

Foundation--and twice as many per capita as runner-up San Jose-Sunnyvale in California. This vibrant culture has given Boulder a

prosperous economy: Without the help of oil, natural gas, or anymonolithic industry, Boulder County (population 300,000) ranks

among the top 20 most productive metro areas in terms of GDP.Unemployment is 5.4 percent--almost two points below the national

average and a full point below the Federal Reserve's goal for thenation. It is the home to a start-up incubator, Techstars, and a healthy

venture capitalist community.

How Boulder Became America's Startup Capital, Inc. Magazine,December 2013 (retrieved on January 10, 2015) at:

http://www.inc.com/magazine/201312/boulder-colorado-fast-growing-business.html.).
http://www.inc.com/magazine/201312/boulder-colorado-fast-growing-business.html.http://www.inc.com/magazine/201312/boulder-colorado-fast-growing-business.html.http://www.inc.com/magazine/201312/boulder-colorado-fast-growing-business.html.http://www.inc.com/magazine/201312/boulder-colorado-fast-growing-business.html.http://www.inc.com/magazine/201312/boulder-colorado-fast-growing-business.html.


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Boulders most famous startups include Amgen, Celestial Seasonings,

Alfalfas and Ball Aerospace.

On November 5, 2013, Boulder voters approved a five year moratorium on

applications for drilling permits on Boulder Open Space and on any new City

permits or applications for use review of new mining industry uses involving oil

and gas extraction. City of Boulder Ordinance Number 7915. The City of

Boulders zoning code limits mining industries to only industrial and agricultural

zone districts. Section 9-6-1(d), B.R.C. 1981. The code defines Mining

Industries as a facility or business engaged in the removal of any earth materials,

including those extracted from open mining and oil and natural gas drilling or

production, from places of natural occurrence to surface locations. 9-16-1,

B.R.C. 1981. There are currently no active oil wells in the City of Boulder or on

Boulder Open Space.

Boulders location and careful growth management have produceda city

unique in the country. Boulders civic ethic invokes an active, healthy lifestyle.

This is not just a matter of civic pride it is what drives Boulders economy. Like

many home rule cities in Colorado, the Citys economy is driven by tourism.

Visitors come to Boulder to hike miles of open space trials, to climb the Flatirons,


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to bike the Citys multi-use trails or even to compete in one of the Citys world

class athletic events, such as the Bolder/Boulder 10k race.

ARGUMENT

The Trial Court Ignored the Home Rule Provisions of the Colorado

Constitution.

The Trial Courts opinion reads home rule authority out of the Colorado

State Constitution. The Trial Courts decision does not even cite Article XX of the

Colorado Constitution. Home rule cities have a constitutional right to the full

right of self-government in both local and municipal matters. Colo. Const., Art.

XX, 6. The Trial Court addressed the issue in a preemption analysis that did not

give proper deference to home rule powers. A matter does not become one of

statewide concern merely by fiat of the state legislature. The state legislature

cannot legislate in matters that are of uniquely local concern. In matters involving

exclusive local and municipal concern, municipal ordinances supersede conflicting

state statutes. Denver & Rio Grande W. R. Co. v. City & County of Denver, 673

P.2d 354, 357-58 (Colo. 1983);DeLong v. Denver, 576 P.2d 537 (1978); Vela v.

People,484 P.2d 1204 (1971). Additionally, even though the state may be able to

suggest a plausible interest in regulating a matter to the exclusion of a home rule

municipality, such an interest may be insufficient to characterize the matter as


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preemption doctrine that in a matter of purely local concern an ordinance of a

home rule city supersedes a conflicting state statute. Vossat 1066. Unlike the

contested regulatory scheme inBowen/Edwards, Longmonts fracking ban is not in

competition with the states regulatory framework. As a result, traditional conflict

preemption analysis for cases of mixed state and local concern is improper. The

ban does not usurp the states power to regulate the industry nor does it offend the

need for uniform statewide regulations. Longmont is not duplicating the authority

of the state system, which usually breeds confusion and unnecessary expense it is

simply prohibiting the activity. In this case, a home-rule city has used its legislative

authority to prioritize the health, safety, and welfare of its community over oil and

gas development. Inherent rules of democracy support the notion that a home rule

city acting in such a manner should be justified in prioritizing the goals of the

citys development.

Additionally, the technological advances in the oil and gas industry that have

led to an increase in fracking justify a review of whether the pooling nature of oil

and gas, Vossat 1067, is still relevant to efficient oil and gas development. In

Voss, the pooling nature of oil and gas was the primary consideration the court

relied on to hold that the state interest outweighed the local authority in the first

two factors of the preemption analysis. The Trial Court made the same finding in


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the present case for the first factor. However, the Trial Court, in granting summary

judgment, did not allow for a full evidentiary review of whether fracking negates

some of the issues presented by the pooling nature of oil and gas.

Protecting the public safety is the first priority of any municipality. The

simple fact is that the Trial Court chose to ignore detailed affidavits about the risk

associated with this type of drilling. Thus, the Trial Court concluded, that

regardless of the nature and extent of evidence of the risk, a home rule city could

do nothing to protect its residents and visitors. This finding subjects all Colorado

municipalities to the mercy of oil and gas development. A municipalitys desire to

protect the health, safety, and welfare of their community should not be governed

by the pooling nature of oil and gas, Vossat 1067, but by the people of each

city or town, Colo. Const., Art. XX, 6, who duly enacted the protection of a

municipal charter.

Such a construction could be devastating for a city like Boulder. Boulder

thrives because as a home rule city it can control many things about its very nature.

A Boulder with oil wells in open space would not be Boulder. A Boulder with oil

wells on Pearl Street would not be Boulder. This decision elevates one industry,

oil and gas extraction, over all others. If home rule authority means everything it

should mean, that the people of home rule municipality can decide their own


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destiny on matters having a direct effect on their local communities. In this matter

the Trial Court decision ignores home rule authority and gives far too much

deference to the state.

CONCLUSION

The City of Boulder respectfully requests that the Court of Appeals reverse

the decision of the Trial Court.

Respectfully submitted this 15th day of January 2015.

CITY OF BOULDER

OFFICE OF THE CITY ATTORNEY

/s/ signature on file

Thomas A. Carr, #42170Attorney for Amicus Curiae,

City of Boulder


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CERTIFICATE OF SERVICE

I hereby certify that on the 15th day of January 2015, this BRIEF OF CITY

OF BOULDER AS AM ICUS CURIAEIN SUPPORT OF THE DEFENDANT-

APPELLANT CITY OF LONGMONT was filed with the Colorado Court of

Appeals, and a true and correct copy was served via ICCES upon the following:

T Eugene Mei, City Attorney

Daniel E. Kramer, Assistant City Attorney

City of Longmont, Civic Center Complex408 3rd Avenue

Longmont, CO 80501

Phillip D. Barber, Esq.

1675 Larimer Street, Ste. 620Denver, Colorado 80202Attorneys for City of Longmont

Brad Arthur Barlett

Kevin Lynch

Environmental Law Clinic

University of Denver Sturm College of Law2255 E. Evans AvenueSuite 335

Denver, CO. 80208Attorney for Citizen Intervenors Our Health, Our Future, Our Longmont; Sierra

Club; Food and Water Watch and Earthworks


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Eric Huber

Sierra Club

1650 38th

StreetSuite 102W

Boulder, CO

Attorney for Sierra Club and Earthworks

Karen L. SpauldingBeatty & Wozniak, P.C.

216 Sixteenth Street, Suite 1100

Denver, CO 80202-5115

Mark J. MathewsMichael D. Hoke

Wayne F. FormanBrownstein Hyatt Farber Schreck, LLP

410 17thStreet, Suite 2200

Denver, CO 80202-4432

Attorneys for Colorado Oil & Gas Association

Jake Matter, Assistant Attorney General

Julie M. MurphyRalph L. Carr, Colorado Judicial Center

1300 Broadway, 10th Floor

Denver, CO 80203Attorneys for Colorado Oil & Gas Conservation Commission

Thomas J. Kimmell

Zarlengo & Kimmell, P.C.1775 Sherman Street, Suite 1375Denver, CO 80203

Attorney for Top Operating Company


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Geoffrey T. Wilson

Colorado Municipal League

1144 Sherman StreetDenver, CO 80203Attorney for Colorado Municipal League

/s/signature on fileSarah J. Bennett

city of boulder-longmont-amicus brief

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