Holding court

Longmont, Fort Collins fracking lawsuits likely headed to Colorado Supreme Court

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In a rare move on Monday, Aug. 17, the Colorado Court of Appeals recommended that the state Supreme Court undertake lawsuits challenging Longmont’s fracking ban and Fort Collins’ fracking moratorium.

It is not yet known if the Colorado Supreme Court will take the cases or boot them back to the appellate court — that determination could be weeks or months away.

The decision by the lower court is just another turn in a long road of litigation between the two municipalities and oil and gas interests. When Longmont voters approved a charter amendment to ban fracking in 2012, the industry group Colorado Oil and Gas Association (COGA) sued the city and was soon joined by the Colorado Oil and Gas Conservation Commission, the state agency tasked with regulating oil and gas operations. In 2015, a district judge ruled with the state, saying that Longmont’s ban interferes with the state’s ability to regulate oil and gas operations. Longmont appealed to the state’s Court of Appeals soon after, which led up to Monday’s punt by the appellate court to the state Supreme Court.

It was a similar story in Fort Collins. In 2013, voters approved a five-year moratorium on fracking, which was overturned by a district judge less than a year later. In September 2014, Fort Collins appealed.

The two cases are distinct from each other for a multitude of reasons, and the Court of Appeals, in part, felt the Supreme Court would be more suited to hear both cases.

The biggest reason that the Court of Appeals is attempting to pass the cases onto the higher court is because state law allows them to request the transfer of a case to the Supreme Court if the matter at hand is “an important state question, which has not been, but should be, determined by the Supreme Court,” or if the case inherently has “imperative public importance.”

In citing similar bans and moratoria in Boulder, Broomfield and Lafayette, the Court of Appeals wrote that Longmont and Fort Collins “would appear to be the test cases for determining whether county and local governments may regulate or prohibit fracking.” Ruling on the Longmont and Fort Collins cases would likely determine the fate of all other cases, the court wrote.

Another reason why the Court of Appeals is passing on the case is because it cannot set new legal precedent and must rely on past cases and existing laws to make a ruling. However, in Longmont’s case, the appellants (the city and several advocacy groups) claim that the foremost precedent for oil and gas drilling jurisdiction rulings is based on an outdated court case. In that 1992 case, Voss vs. Lundvall Bros. Inc., the court ruled that the state’s oil and gas interests are “sufficiently dominant to override a home-rule city’s imposition of a total ban on the drilling of any oil, gas or hydrocarbon wells within the city limits.”

“The Voss case that’s been used as precedent is dated,” says Kaye Fissinger, president of Our Longmont, an appellate on the case. “In 1992 or ’93, it wasn’t the same fracking. It didn’t use the same amount of water; it didn’t have the chemicals. They were going down and looking for a pool. That’s not the oil and gas industry of today. What they’re doing today is highly irresponsible.”

The Court of Appeals wrote that they are “bound by Voss — only the Supreme Court can decide whether it should continue to be followed.”

The Court of Appeals also noted the Supreme Court would need to sort out its own precedents, citing a previous lawsuit against Longmont, which was dropped as part of a lastminute “compromise” between Jared Polis and the state in exchange for Polis removing two anti-fracking ballot initiatives. In that previous lawsuit, Longmont cited Bowen Edwards Associates Inc. vs. the La Plata County Commissioners, a Supreme Court decision that sided with La Plata County and ruled that municipalities could have more stringent regulations than the state.

The issue of precedents is central to the Fort Collins case. Because they have issued a moratorium and not a ban, the city raised the issue in their appeal that the state’s ability to preempt their local right to enact a moratorium may have no basis in Supreme Court precedence.

The Court of Appeals also determined that it would generally be more cost efficient and expedient for the state to take on the issue.

So the Supreme Court has several options now. It can boot the case back to the appellate court and force them to make a ruling; though, the Court of Appeals’ recommendation clearly came from a foundation that these issues are going to the Supreme Court eventually. The Supreme Court can also take on the case, which will set forth new timelines.

No one quite knows what it will mean for the outcome of the cases if the Supreme Court decides to take them on, but both sides are gearing up for a showdown.

Fissinger, with Our Longmont, says the decision is a good sign for the city’s chances.

“We generally think its good. Of course, you never can tell,” she says. “What I do find very encouraging about the order is that basically for the first time we’ve had a court acknowledge the fact that there are social consequences to the issue of fracking. The previous district courts of Boulder and Larimer [counties] did not take that similarly.

“We do ultimately believe this needs to be resolved at the Supreme Court level,” she says.

Citing the ongoing litigation, COGA sent a statement to Boulder Weekly and refused to comment further on the appellate court’s decision. Their statement read, in part:

“In no way does this decision legitimize the pursuit of illegal bans. We look forward to when these cases are closed, and we can get back to how local control was meant — not by banning products from your city but working together to find reasonable solutions.

“Moving the case to the Colorado Supreme Court in no way alters the fact that, to date, every Colorado court has declared bans and moratoria on hydraulic fracturing illegal.”

Fissinger says the lawyers involved on her side of the case believe the Supreme Court will take the issue on, citing the fact that it might be easier to hear the cases now than wait for an appellate court ruling.

“All options are on the table, and I think that applies here,” she says. “The only thing that might be compelling for them now is that there could be two distinct rulings from the two panels on the appellate courts, the one for Fort Collins, the one for Longmont. [Or] maybe they could have instructions for how the appellate court could resolve those potential divergent court rulings. You really can’t predict what courts will do.

“We used to say take it to the Supreme Court and you’ll get the right conclusion… well, you can’t say that anymore,” she says. “I realize courts have politics now.”