City of Fort Collins v. Colo. Oil, Supreme Court Case No. 15SC668

Docket NºSupreme Court Case No. 15SC668
Citation369 P.3d 586
Case DateMay 02, 2016
CourtSupreme Court of Colorado

369 P.3d 586

CITY OF FORT COLLINS, Petitioner
v.
COLORADO OIL and Gas Association, Respondent.

Supreme Court Case No. 15SC668

Supreme Court of Colorado.

May 2, 2016


Attorneys for Petitioner: Sullivan Green Seavy, LLC, Barbara J.B. Green, John T. Sullivan, Boulder, Colorado, Fort Collins City Attorney's Office, Carrie M. Daggett, John R. Duval, Fort Collins, Colorado.

Attorneys for Respondent: Brownstein Hyatt Farber Schreck, LLP, Mark Mathews, Wayne F. Forman, Justin L. Cohen, Denver, Colorado.

Attorneys for Amicus Curiae American Petroleum Institute: Ryley Carlock & Applewhite, Richard C. Kaufman, Allison P. Altaras, Denver, Colorado.

Attorneys for Amicus Curiae Board of County Commissioners of the County of Boulder, State of Colorado: Goldman, Robbins & Nicholson, P.C., Jeffery P. Robbins, Durango, Colorado.

Attorneys for Amici Curiae Citizens for a Healthy Fort Collins, Sierra Club, and Earthworks: University of Denver Environmental Law Clinic, Kevin Lynch, Brad Bartlett, Denver, Colorado.

Attorneys for Amicus Curiae City of Boulder: Office of the City Attorney, Thomas A. Carr, City Attorney, Boulder, Colorado.

Attorneys for Amici Curiae Colorado Concern, Denver Metro Chamber of Commerce, Colorado Competitive Council, Colorado Motor Carriers Association, and Colorado Farm Bureau: Brownstein Hyatt Farber Schreck, LLP, Jason R. Dunn, Denver, Colorado.

Attorneys for Amicus Curiae Colorado Municipal League: Colorado Municipal League, Geoffrey T. Wilson, Denver, Colorado.

369 P.3d 589

Attorneys for Amicus Curiae Conservation Colorado: Earthjustice, Michael Freeman, Denver, Colorado.

Attorneys for Amicus Curiae National Association of Royalty Owners Colorado Chapter: Lindquist & Vennum LLP, Thomas W. Niebrugge, Denver, Colorado.

Attorneys for Amicus Curiae Northwest Colorado Council of Governments: Northwest Colorado Council of Governments, Torie Jarvis, Silverthorne, Colorado.

Attorney for Amicus Curiae Congressman Jared Polis: Courtney J. Krause, Denver, Colorado.

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court.

¶ 1 This case comes to us on review of the Larimer County District Court's order invalidating the city of Fort Collins's five-year moratorium on fracking and the storage of fracking waste within the city. As in City of Longmont v. Colorado Oil and Gas Association, 2016 CO 29, 369 P.3d 573, which we also decide today and which invalidated the city of Longmont's bans on fracking and the storage and disposal of fracking waste, this case presents us with the narrow question of whether state law preempts Fort Collins's fracking moratorium.

¶ 2 We conclude that because fracking is a matter of mixed state and local concern, Fort Collins's fracking moratorium is subject to preemption by state law. Applying well-established preemption principles, we further conclude that Fort Collins's five-year moratorium on fracking and the storage of fracking waste operationally conflicts with the effectuation of state law. Accordingly, we hold that the moratorium is preempted by state law and is, therefore, invalid and unenforceable. We thus affirm the district court's order and remand this case for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶ 3 At an election held on November 5, 2013, the citizens of Fort Collins, a home-rule city, voted in favor of the following proposed citizen-initiated ordinance:

An ordinance placing a moratorium on hydraulic fracturing and the storage of its waste products within the City of Fort Collins or on lands under its jurisdiction for a period of five years, without exemption or exception, in order to fully study the impacts of this process on property values and human health, which moratorium can be lifted upon a ballot measure approved by the people of the City of Fort Collins and which shall apply retroactively as of the date this measure was found to have qualified for placement on the ballot.

The moratorium thus prohibits operators from fracking or storing fracking waste in Fort Collins until 2018, barring further action by Fort Collins voters.

¶ 4 After voters approved the moratorium, Fort Collins amended its municipal code to provide, "The use of hydraulic fracturing to extract oil, gas or other hydrocarbons, and the storage in open pits of solid or liquid wastes and/or flowback created in connection with the hydraulic fracturing process, are prohibited within the City." Fort Collins, Colo., Code § 12–135 (2015). Certain wells that existed prior to the amendment, however, are exempt from this prohibition, as long as such wells were subject to operator agreements between the operators of the wells and Fort Collins that restricted the release of methane and "in the judgment of the City Council, adequately protected the public health, safety and welfare." Id. § 12–136.

¶ 5 Thereafter, the Colorado Oil and Gas Association (the Association), an industry organization, sued Fort Collins and requested (1) a declaratory judgment declaring that the Oil and Gas Conservation Act, §§ 34–60–101 to –130, C.R.S. (2015), and the rules and regulations promulgated pursuant thereto preempt Fort Collins's fracking moratorium and (2) a permanent injunction enjoining the enforcement of the moratorium. The Association subsequently moved for summary judgment on its declaratory judgment claim, and Fort Collins filed a cross-motion for summary judgment, asking the district court to find that the moratorium was not preempted by state law.

369 P.3d 590

¶ 6 The district court ultimately granted the Association's motion and denied Fort Collins's cross-motion. The court noted that state law may preempt a home-rule city's ordinance, including a moratorium, expressly, impliedly, or because of an operational conflict. The court then concluded that although "[t]he [Oil and Gas Conservation] Act does not expressly preempt all local regulation of drilling," it impliedly preempts Fort Collins's moratorium. The court further concluded that the moratorium was also preempted "because it conflicts with the application of the [Oil and Gas Conservation] Act." Accordingly, the court granted the Association's request for a declaratory judgment that the Oil and Gas Conservation Act and the rules and regulations promulgated pursuant thereto preempt the moratorium.

¶ 7 Fort Collins appealed the district court's order to the Colorado Court of Appeals, and a number of interested parties filed amicus curiae briefs. Before hearing oral argument, however, a division of the court of appeals requested a transfer of this case to this court pursuant to section 13–4–109, C.R.S. (2015), and C.A.R. 50. We accepted the transfer, and Fort Collins now argues that the district court erred in concluding that state law preempts its moratorium on fracking and the storage of fracking waste.

II. Standard of Review

¶ 8 The Colorado Rules of Civil Procedure allow a district court to enter summary judgment before trial when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." C.R.C.P. 56(c). In determining whether summary judgment is proper, a district court grants the nonmoving party the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts and resolves all doubts against the moving party. Bebo Constr. Co. v. Mattox & O'Brien, P.C., 990 P.2d 78, 83 (Colo.1999). In responding to a properly supported summary judgment motion, however, the nonmoving party may not rest on its mere allegations or denials of the opposing party's pleadings but must provide specific facts demonstrating a genuine issue for trial. C.R.C.P. 56(e).

¶ 9 In reviewing a summary judgment order, an appellate court applies the same standard as the district court. Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340 (Colo.1988). Thus, our task on review is to determine whether a genuine issue of material fact existed and whether the district court correctly applied the law when it invalidated Fort Collins's moratorium. In doing so, we review the district court's legal conclusions de novo. See Webb v. City of Black Hawk, 2013 CO 9, ¶ 16, 295 P.3d 480, 486 ; see also Bd. of Cty. Comm'rs v. Colo. Oil & Gas Conservation Comm'n, 81 P.3d 1119, 1124 (Colo.App.2003) (noting that the validity of a rule adopted by the Commission presents a question of law subject to de novo review).

¶ 10 We reject Fort Collins's argument that because courts must presume the validity of zoning decisions of municipal zoning authorities, see Sellon v. City of Manitou Springs, 745 P.2d 229, 232 (Colo.1987), the Association must prove beyond a reasonable doubt that the moratorium is preempted by state law. The question of preemption is a matter of law requiring us "to establish a priority between potentially conflicting laws enacted by various levels of government." Bd. of Cty. Comm'rs v. Bowen/Edwards Assocs., Inc., 830 P.2d 1045, 1055 (Colo.1992). In this context, we perceive no basis for imposing a "beyond a reasonable doubt" standard on a party asserting preemption. Cf. Blue Sky Entm't, Inc. v. Town of Gardiner, 711 F.Supp. 678, 697 n. 19 (N.D.N.Y.1989) (describing as "absurd" the...

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10 practice notes
  • Maralex Res., Inc. v. Colo. Oil & Gas Conservation Comm'n, Court of Appeals No. 17CA0051
    • United States
    • March 22, 2018
    ...rules regulating multitudinous aspects of the oil and gas industry. See City of Fort Collins v. Colo. Oil & Gas Ass'n , 2016 CO 28, ¶ 29, 369 P.3d 586, 593 (characterizing COGCC's rules as "exhaustive" and "comprehensive[ ]"); City of Longmont v. Colo. Oil & Gas Ass'n , 2016 CO 29, ¶ 52, 36......
  • Ryser v. Shelter Mut. Ins. Co., Court of Appeals No. 18CA0748
    • United States
    • Colorado Court of Appeals of Colorado
    • June 13, 2019
    ...is reviewed de novo, applying the same standard as the trial court. City of Fort Collins v. Colo. Oil & Gas Ass'n , 2016 CO 28, ¶ 9, 369 P.3d 586. It is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. C.R.C.P. 5......
  • S. Cross Ranches, LLC v. JBC Agric. Mgmt., LLC, Court of Appeals No. 18CA0161
    • United States
    • Colorado Court of Appeals of Colorado
    • April 18, 2019
    ...Summary judgment is reviewed de novo, applying the same standard as the trial court. City of Fort Collins v. Colo. Oil , 2016 CO 28, ¶ 9, 369 P.3d 586. But "arguments and evidence not presented to the trial court in connection with a motion for summary judgment will not be considered on app......
  • Martinez v. Colo. Oil & Gas Conservation Comm'n, Court of Appeals No. 16CA0564
    • United States
    • Colorado Court of Appeals of Colorado
    • March 23, 2017
    ...of oil and gas development. Our supreme court noted in City of Fort Collins v. Colorado Oil & Gas Association , 2016 CO 28, ¶ 29, 369 P.3d 586, that, consistent with its legislative authorization, "the Commission has promulgated an exhaustive set of rules and regulations ‘to prevent waste a......
  • Request a trial to view additional results
10 cases
  • Maralex Res., Inc. v. Colo. Oil & Gas Conservation Comm'n, Court of Appeals No. 17CA0051
    • United States
    • March 22, 2018
    ...rules regulating multitudinous aspects of the oil and gas industry. See City of Fort Collins v. Colo. Oil & Gas Ass'n , 2016 CO 28, ¶ 29, 369 P.3d 586, 593 (characterizing COGCC's rules as "exhaustive" and "comprehensive[ ]"); City of Longmont v. Colo. Oil & Gas Ass'n , 2016 CO 29, ¶ 52, 36......
  • Ryser v. Shelter Mut. Ins. Co., Court of Appeals No. 18CA0748
    • United States
    • Colorado Court of Appeals of Colorado
    • June 13, 2019
    ...is reviewed de novo, applying the same standard as the trial court. City of Fort Collins v. Colo. Oil & Gas Ass'n , 2016 CO 28, ¶ 9, 369 P.3d 586. It is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. C.R.C.P. 5......
  • S. Cross Ranches, LLC v. JBC Agric. Mgmt., LLC, Court of Appeals No. 18CA0161
    • United States
    • Colorado Court of Appeals of Colorado
    • April 18, 2019
    ...Summary judgment is reviewed de novo, applying the same standard as the trial court. City of Fort Collins v. Colo. Oil , 2016 CO 28, ¶ 9, 369 P.3d 586. But "arguments and evidence not presented to the trial court in connection with a motion for summary judgment will not be considered on app......
  • Martinez v. Colo. Oil & Gas Conservation Comm'n, Court of Appeals No. 16CA0564
    • United States
    • Colorado Court of Appeals of Colorado
    • March 23, 2017
    ...of oil and gas development. Our supreme court noted in City of Fort Collins v. Colorado Oil & Gas Association , 2016 CO 28, ¶ 29, 369 P.3d 586, that, consistent with its legislative authorization, "the Commission has promulgated an exhaustive set of rules and regulations ‘to prevent waste a......
  • Request a trial to view additional results

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