Lundvall Bros., Inc. v. Voss, 89CA1282

• Decision Date: 20 December 1990
• Docket Number: No. 89CA1282,89CA1282
• Citation: 812 P.2d 693
• Parties: Util. L. Rep. P 26,111 LUNDVALL BROTHERS, INC., a Colorado corporation, d/b/a Lundvall Oil and Exploration Company, Bellwether Exploration Company; Hertzke Brothers, a partnership, Colorado Oil and Gas Conservation Commission, Conquest Oil Company, and Langford Resources, a Colorado general partnership, Plaintiffs-Appellees, v. Gayle VOSS, City Clerk of the City of Greeley, a municipal corporation, Vitus Einsphar, Fire Chief, City of Greeley Fire Department, the Election Board of the City of Greeley, a body politic, and the City of Greeley, a municipal corporation, Defendants-Appellants. . III
• Court: Colorado Court of Appeals

Page 693

812 P.2d 693

Util. L. Rep. P 26,111

LUNDVALL BROTHERS, INC., a Colorado corporation, d/b/a Lundvall Oil and Exploration Company, Bellwether Exploration Company; Hertzke Brothers, a partnership, Colorado Oil and Gas Conservation Commission, Conquest Oil Company, and Langford Resources, a Colorado general partnership Plaintiffs-Appellees, v. Gayle VOSS, City Clerk of the City of Greeley, a municipal corporation, Vitus Einsphar, Fire Chief, City of Greeley Fire Department, the Election Board of the City of Greeley a body politic, and the City of Greeley, a municipal corporation, Defendants-Appellants.

No. 89CA1282.

Colorado Court of Appeals Div. III.

Dec. 20, 1990.

As Modified on Denial of Rehearing Feb. 15, 1991.

As Corrected Feb. 25, and March 21, 1991.

Certiorari Granted July 9, 1991.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Timothy J. Monahan, Asst. Atty. Gen., Denver, James J. Peyton, Lind, Lawrence & Ottenhoff, Kenneth F. Lind, Greeley, Randolph W. Starr, P.C., Randolph W. Starr, Loveland, for plaintiffs-sppellees.

George N. Monsson, Asst. City Atty., Greeley, for defendants-appellants.

Kenneth A. Wonstolen, Gorsuch, Kirgis, Campbell, Walker and Grover, Hugh V. Schaefer, William A. Keefe, Kevin M. Baird, Denver, for amicus curiae Independent Petroleum Ass'n of Mountain State.

Lohf, Shaiman & Ross, P.C., J. Michael Morgan, Denver, for amicus curiae Colorado Oil and Gas Ass'n.

Opinion by Judge NEY.

The defendants, City of Greeley and its clerk, fire chief, fire department, and election board, appeal the trial court's partial summary judgment entered in favor of plaintiffs on the issue whether the doctrine of preemption invalidated the application of a municipal ordinance. We affirm.

I.

The City first contends that a home rule municipality is granted authority by the Colorado Constitution to regulate matters of local concern and that such constitutional control is not preempted by the statutory authority granted to the Oil and Gas Conservation Commission. We disagree.

The City, at times relevant to this action, had a municipal ordinance which, by land use regulation, prohibited the drilling of oil, gas, or hydrocarbon wells within its corporate limits. Greeley Ordinance 90, 1985 (Sept. 17, 1985). This ban was in direct conflict with drilling permits previously issued by the Commission and represented an attempt by the City to render such permits null and void.

The Commission challenged the validity of the City's drilling regulations, asserting that authority to regulate the area of oil and gas development was exclusively delegated to the Commission by the Colorado Oil and Gas Conservation Act, § 34-60-101 et seq., C.R.S. (1984 Repl.Vol. 14). We agree with the trial court that the City's regulations are invalid.

Bowen/Edwards Associates v. Board of County Commissioners, 812 P.2d 656 (Colo.App.1990) is dispositive of the issue of preemption. There we said:

"By law, the Commission has the 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.' Section 34-60-106(11), C.R.S. (1989 Cum.Supp.). The statute further provides that the grant to the Commission of any specific power shall not be construed to be in derogation of any of the general powers granted by the Act. Section 34-60-106(4), C.R.S. (1984 Repl.Vol. 14).

"We conclude that these two statutory subsections give the Commission broad authority to regulate all phases of oil and gas development, including regulation of the impact of such development on the surrounding community. Having thus preempted the field, the General Assembly has left no room for local regulation, and the regulations adopted by the Board are invalid."

We conclude that this case stands for the proposition that a local governmental entity is preempted from regulating the development of oil and gas within its corporate limits. Therefore, the trial court's entry of summary judgment in favor of the Commission on this issue was correct.

II.

The City, however, asserts that the principles of Oborne v. Board of County Commissioners, 764 P.2d 397 (Colo.App.1988) (cert. denied, 778 P.2d 1370 (Colo.1989)) and Bowen/Edwards Associates, Inc. v. Board of County Commissioners, supra, are not applicable to home rule cities. The City bases this assertion on the distinction between a county as a legislatively created subdivision of the state and a home rule city, which derives its power from Colo. Const. art. XX, § 6. We disagree.

In a matter of exclusively local concern, an ordinance passed by a home rule city supersedes a conflicting state statute; in a matter of exclusively state concern, however, a state statute supersedes the conflicting municipal ordinance; and, finally, in a matter of mixed local and statewide concern, an ordinance which conflicts with a state statute is superseded by that statute. National Advertising Co. v. Department of Highways, 751 P.2d 632 (Colo.1988).

In deciding whether a state interest is sufficient to justify preemption of inconsistent home rule provisions, we apply the analysis set out in City and County of Denver v. State, 788 P.2d 764 (Colo.1990), which holds the following factors determinative:

(1) the need for statewide uniformity of regulation,

(2) the impact of the municipal regulation on persons living outside the municipal limits, and

(3) whether a particular matter is one traditionally governed by state or local government.

A.

It is the intent of the Oil and Gas Conservation Act to permit each oil...