Board of County Com'rs, La Plata County v. Bowen/Edwards Associates, Inc.

• Decision Date: 08 June 1992
• Citation: 830 P.2d 1045
• Docket Number: 90SC516
• Parties: BOARD OF COUNTY COMMISSIONERS, LA PLATA COUNTY, Colorado, Petitioner, v. BOWEN/EDWARDS ASSOCIATES, INC., Respondent.
• Court: Colorado Supreme Court

Page 1045

830 P.2d 1045

BOARD OF COUNTY COMMISSIONERS, LA PLATA COUNTY, Colorado, Petitioner, v.BOWEN/EDWARDS ASSOCIATES, INC., Respondent.

No. 90SC516.

Supreme Court of Colorado En Banc.

June 8, 1992.

K. Kane Graves, Shand, McLachlan, Newbold & Spear, P.C., Michael E. McLachlanBryson P. Burnham, Durango, for petitioner.

Dugan & Associates, Thomas P. Dugan, Thornton W. Price, III, Lon W. Abadie, Durango, for respondent.

Marion A. Brewer, Denver, J. Mark Hannen, Castle Rock, Don K. Deford, Glenwood Springs, Maurice Lyle Dechant, Grand Junction, Lee D. Morrison, Greeley, Robert J. Lowe, Brighton, for amicus curiaeColorado Counties, Inc.

Gorsuch, Kirgis, Campbell, Walker & Grover, William A. Keefe, Hugh V. Schaefer, Kenneth A. Wonstolen, Denver, for amicus curiae Colorado Petroleum Ass'n.

Lohf, Shaiman & Ross, P.C., David G. Ebner, J. Michael Morgan, Denver, for amicus curiae Colorado Oil and Gas Ass'n and Independent Petroleum Ass'n of the Mountain States.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol.Gen., John Daniel Dailey, Deputy Atty. Gen., Timothy J. Monahan, Asst. Atty. Gen., Denver, for amicus curiaeColorado Oil and Gas Conservation Com'n.

William Perry Pendley, Steven J. Lechner, Denver, for amicus curiaeMountain States Legal Foundation, John T. Jolly, and Cheryl A. Jolly.

Justice QUINNdelivered the Opinion of the Court.

This case raises the following two questions: whether in an action for declaratory and injunctive relief Bowen/Edwards Associates(Bowen/Edwards), a corporate entity engaged in oil and gas development and operations in La Plata County, has standing to challenge the validity of the county's land-use regulations pertaining to oil and gas activities within the county without first filing a permit-application with the county and obtaining administrative approval of the application; and whether the Colorado Oil and Gas Conservation Act, §§ 34-60-101 to -126, 14 C.R.S. (1984 & 1991 Supp.), completely preempts La Plata County's authority to enact land-use regulations for oil and gas operations within the county.In Bowen/Edwards Associates, Inc. v. Board of County Comm'rs of La Plata County, 812 P.2d 656(Colo.App.1990), the court of appeals held that Bowen/Edwards has standing to challenge La Plata County's land-use regulations and that the Oil and Gas Conservation Act totally preempts the county's land-use authority over all aspects of oil and gas development and operations within the county.We granted certiorari to review the decision of the court of appeals.We now affirm that part of the judgment which accords standing to Bowen/Edwards, and we reverse that part of the judgment which holds that the Oil and Gas Conservation Act prohibits La Plata County from exercising any aspect of its land-use authority over oil and gas development and operations within the county.We accordingly remand the case for further proceedings.

I.

The Oil and Gas Conservation Act and the La Plata County Regulations provide the legal framework for resolving the questions before us.

A.

The declared purposes of the Oil and Gas Conservation Act are as follows: to promote the development, production, and utilization of the natural resources of oil and gas in the state; to protect public and private interests against the evils of waste; to safeguard and enforce the coequal and correlative rights of owners and producers in a common source or pool of oil and gas so that each may obtain a just and reasonable share of production therefrom; and to permit each oil and gas pool to produce up to its maximum efficient rate of production subject to the prohibition of waste and subject further to the enforcement of the coequal and correlative rights of common-source owners and producers to a just and equitable share of profits.¹§ 34-60- 102(1), 14 C.R.S.(1984).To effectuate these purposes, the legislature established the Oil and Gas Conservation Commission and vested it with the following general powers:

The commission has jurisdiction over all persons and property, public and private, necessary to enforce the provisions of this article, and has the power to make and enforce rules, regulations, and orders pursuant to this article, and to do whatever may reasonably be necessary to carry out the provisions of this article.Any delegation of authority to any other state officer, board, or commission to administer any other laws of this state relating to the conservation of oil or gas, or either of them, is hereby rescinded and withdrawn and such authority is unqualifiedly conferred upon the commission, as provided in this section.Any person, or the attorney general on behalf of the state, may apply for any hearing before the commission, or the commission may initiate proceedings upon any question relating to the administration of this article, and jurisdiction is conferred upon the commission to hear and determine the same and enter its rule, regulation, or order with respect thereto.

§ 34-60-105(1), 14 C.R.S.(1984).

In addition to issuing permits for oil and gas drilling operations, the commission is authorized to regulate the drilling, production, and plugging of wells, the shooting and chemical treatment of wells, the spacing of wells, and the disposal of salt water and oil field wastes, § 34-60-106(2), 14 C.R.S.(1984), as well as to limit production from any pool or field for the prevention of waste and to allocate production from a pool or field among or between tracts of land having separate ownership on a fair and equitable basis so that each tract will produce no more than its fair and equitable share, § 34-60-106(3)(a), 14 C.R.S.(1984).The Oil and Gas Conservation Act contains an extensive list of technical requirements relating to developmental and operational aspects of oil and gas production which the commission is authorized to enforce.²

In 1985 the General Assembly amended the Oil and Gas Conservation Act to provide the commission with additional powers.Included within the 1985amendments, as pertinent here, is the commission's authority to "promulgate rules and regulations to protect the health, safety, and welfare of the general public in the drilling, completion, and operation of oil and gas wells and production facilities."§ 34-60-106(11), 14 C.R.S. (1991 Supp.).

B.

The Local Government Land Use Control Enabling Act of 1974, §§ 29-20-101 to -104, 12A C.R.S. (1986 & 1991 Supp.), states that "the policy of this state is to clarify and provide broad authority to local governments to plan for and regulate the use of land within their respective jurisdictions,"§ 29-20-102, 12A C.R.S.(1986).The County Planning Code, §§ 30-28-101 to -137, 12A C.R.S. (1986 & 1991 Supp.), authorizes a county planning commission to enact a zoning plan for all or any part of the unincorporated territory within the county, § 30-28-111, 12A C.R.S.(1986).In 1988 the Board of County Commissioners of La Plata County, acting pursuant to these statutes, enacted regulations entitled "Oil and Gas Regulations of La Plata County, Colorado 1988"(hereinafter cited as County Regulations).The county regulations were made part of La Plata County's Land Use Code on October 18, 1988, and became effective on December 1, 1988.La Plata County ResolutionNo. 1988-53.

The county regulations apply to "lands within the unincorporated area of La Plata County with the exception of those lands where the County's jurisdiction is preempted by Federal or State law, or by Southern Ute Indian Tribal jurisdiction."County Regulation § 6.104.The regulations contain the following statement of purpose:

These regulations are enacted to protect and promote the health, safety, morals, convenience, order, prosperity or general welfare of the present and future residents of La Plata County.It is the County's intent by enacting these regulations to facilitate the development of oil and gas resources within the unincorporated area of La Plata County while mitigating potential land use conflicts between such development and existing, as well as planned, land uses.It is recognized that under Colorado law the surface and mineral estates are separate and distinct interests in land and that one may be severed from the other.Owners of subsurface mineral interests have certain legal rights and privileges, including the right to use that part of the surface estate reasonably required to extract and develop their subsurface mineral interests, subject to compliance with the provisions of these regulations and any other applicable statutory and regulatory requirements.Similarly, owners of the surface estate have certain legal rights and privileges, including the right to have the mineral estate developed in a reasonable manner and to have adverse land use impacts upon their property, associated with the development of the mineral estate, mitigated through compliance with these regulations.Should it be established by competent evidence that a proposed major facility, as defined herein, cannot be operated in compliance with these regulations, County land use approval for such a facility may be denied.

County Regulation § 6.103.

The regulations categorize oil and gas facilities into minor facilities, County Regulation§ 6.106(a), minor facilities requiring special mitigation processing, County Regulation § 6.106(b), and major facilities, County Regulation § 6.107.Each category is subject to distinct application requirements relating to information and/or documentation concerning land-use impact.Depending on the type of application, administrative approval by various levels of county government is required prior to the commencement of any construction, installation, and operation of any oil and gas facility within the county.Minor facilities and minor facilities requiring special mitigation processing are subject to administrative approval by the county planning department....