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City of Fort Collins v. Colorado Oil and Gas Association

Supreme Court of Colorado, En Banc

May 2, 2016

City of Fort Collins, Petitioner
v.
Colorado Oil and Gas Association, Respondent

C.A.R. 50 Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 14CA1991 Larimer County District Court Case No. 13CV31385 Gregory M. Lammons, Judge

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

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

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, ___P.3d ___, 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 ...

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